Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-Cr-289 -- Nicholas J. Bua, Judge.
Before Fairchild, Chief Judge, and Pell and Wood, Circuit Judges.
Alexander Stavros, the defendant-appellant, challenges on appeal this judgment following a bench trial in which he was found guilty on all eight counts of the indictment against him which charged various violations of the so-called wagering provisions of the Internal Revenue Code. The case was submitted on a stipulation of facts in which Stavros admitted that during the charged periods he had engaged in the wagering business, had not registered as required by 26 U.S.C. § 4412, had not paid the special occupational tax as required by 26 U.S.C. § 4411, and had not paid the excise tax as required by 26 U.S.C. § 4401.
Counts One through four related to the period from October 6, 1976, to December 27, 1976, and each charged Stavros with having been engaged in the business of accepting wagers. Count One charged knowing and willful failure to register as required by Section 4412 and to pay the occupational tax as required by Section 4411, all in violation of 26 U.S.C. § 7203.*fn1 Count Two charged knowing and willful failure to pay the excise tax as required by Section 4401 in violation of 26 U.S.C. § 7203. Count Three charged a failure to pay the occupational tax required by Section 4411 in violation of 26 U.S.C. § 7262.*fn2 Count Four charged a failure to register as required by Section 4412 in violation of 26 U.S.C. § 7272.*fn3 Counts Five through Eight are identical to One through Four in charging in the above sequence except that they relate to the period of September 17, 1975, to November 4, 1975.
The court's judgment suspended imposition of sentence but placed the defendant on probation for a period of one year on each of Counts One, Two, Five, and Six, and sentences to run consecutively; and further adjudged that the defendant pay a fine of $1,000 on each of Counts Three and Seven and of $50 on each of Counts Four and Eight, the fines to be cumulative.
The primary thrust of the appeal before us is concerned with a claim of a valid Fifth Amendment defense. We find, however, that the only issue raised meriting any extended discussion is the assertion regarding the amercement imposed, being that it is multiplicitous. As we view the record there are problems of some difficulty, aspects of which are not raised by Stavros and not adverted to by the Government.
Stavros contends on appeal that Counts One and Three both charge the same activities: failure to pay the occupational tax, which is also true of Counts Five and Seven. He argues therefore that the convictions on Counts One and Five should be vacated and the conviction should be left standing on the remaining counts. We become somewhat lost in his reasoning at this point because he does not seem to contend, on appeal at least, that there is any multiplicity between Counts One and Two and between Counts Five and Six, although this was the multiplicity claimed in the trial court. Also, he does not discuss the significance, if any, of the fact that while Counts One, Three, Five, and Seven do all pertain to the legal requirement of paying the occupational tax, Counts One and Five charge Violations of 26 U.S.C. § 7203, whereas Counts Three and Seven, as to which in part the multiplicity contentions respectively relate, charge Violations of 26 U.S.C. § 7262, a different section of the Code. Also, Counts Four and Eight charge a violation of 26 U.S.C. § 7272, a different section than is charged in Counts One and Five, which was a violation of 26 U.S.C. § 7203. Apparently, in any event, Stavros opted for eliminating two counts, rather than four, on the basis that it was preferable to cut the probation time in half to diminishing the monetary fine.
The problem becomes somewhat more difficult at this point because the particular issue he now relies on is raised for the first time on appeal. In the trial court, Stavros, as indicated above, did file a motion to dismiss for multiplicity of counts but that motion sought a dismissal of Counts Two and Six on the basis that they charged the same violations as One and Five, being of 26 U.S.C. § 7203. This motion was denied by the district court but the problem is made no easier inasmuch as the court in its order of denial found no multiplicity because "each count covers a different time period." This took care of any multiplicity between Counts One and Five because they did involve different time periods. The same is true as to Counts Two and Six. The court, however, did not address the fact that One and Two each did involve the same time period, as did Five and Six. Also the court did not address the fact that while all four of these counts charged a violation of Section 7203, the counts that were charged as being multiplicitous with each other, I. e., One and Two, and Five and Six respectively, were based upon different failures to comply with the legal requirements of the Code: registering and paying the occupational tax in One and Five, and paying the excise tax in Two and Six. These requirements, as we have previously noted, are found in three separate sections of the Code.
Although ordinarily we will not consider errors raised for the first time on appeal, the situation is somewhat different here. If a plain constitutional infirmity in a criminal sentence has come to our attention, we think we should not disregard it. We think there is a problem of that sort here even though not exactly as articulated by the appellant. While double jeopardy as prohibited by the Fifth Amendment is ordinarily thought of in terms of a second trial following either a conviction or acquittal in a first trial involving the same offense, there are certainly overtones of double jeopardy if a court exceeds its legislative authorization by imposing multiple punishments for the same offense. See Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977).
If the same act or transaction violates two distinct statutes, then punishment for violation of both statutes violates the double jeopardy clause unless each offense requires proof of a fact not required by the other. Simpson v. United States, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978); Gore v. United States, 357 U.S. 386, 78 S. Ct. 1280, 2 L. Ed. 2d 1405 (1958); Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932); United States v. Mathis, 579 F.2d 415 (7th Cir. 1978).
It follows from the Supreme Court's longstanding test that punishment both for an offense and a lesser included offense violates double jeopardy. By definition, a lesser included offense contains some, but not all of the elements of the greater offense, and has no elements in addition to those of the greater offense. The offenses are therefore the same for the purpose of double jeopardy. See Brown v. Ohio, supra, 432 U.S. at 168, 97 S. Ct. 2221.
The Government argues on the basis of United States v. Shaffer, 291 F.2d 689 (7th Cir. 1961), Cert. denied, 368 U.S. 915, 82 S. Ct. 192, 7 L. Ed. 2d 130 (1961), that the punishment for all of the counts was proper. In Shaffer this court held that Section 7262 was not a lesser included offense of Section 7203 because it was possible to violate Section 7203 without violating Section 7262. Although Shaffer correctly restates the test for evaluating whether there is a lesser included offense, this conclusion apparently was reached only by examining the language of the two statutes. Section 7203 may be violated in a number of ways, not all of which would also constitute violations of Section 7262. Section 7203 covers numerous forms of willful omissions to comply with the revenue laws, not merely willful failure to pay a tax on wagering. To determine whether the Section 7262 counts constitute lesser included offenses, however, we do not look to the statutes alone. When a statute can be violated in different ways we must look to the facts alleged in the indictment. United States v. Kearney, 162 U.S.App.D.C. 110, 113, 498 F.2d 61, 64 (1974).
Counts One and Five charge the defendant with having engaged in the business of accepting wagers and willfully failing to pay the Section 4411 tax and to register under 4412, in violation of Section 7203. Counts Three and Seven charge the defendant with having engaged in the business of accepting wagers without having paid the Section 4411 tax, in violation of Section 7262. We fail to see how the Government could have proved the elements of the Section 7203 violations in Counts One and Five without having proved the elements of the Section 7262 violations in the corresponding Counts Three and Seven. See United States v. Goldman, 352 F.2d 263, 265 (3d Cir. 1965).
The Government also argues that Section 7262 is a "different offense" than Section 7203. According to the Government, Section 7262 punishes engaging in the business of accepting wagers without first paying the tax, and Section 7203 merely punishes failure to pay the Section 4411 tax. We need not disagree with the Government that Sections 7203 and 7262 are different "offenses" to decide that their argument does not affect the result under the double jeopardy clause. The determination that there are separate offenses is the beginning, not the conclusion of double jeopardy analysis. Simpson v. United States, 435 U.S. 6, 10-11, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978). If some possibility exists that the two statutory offenses are the same offense for double jeopardy purposes, we must examine the particular situation to determine whether there is unconstitutional multiple punishment. Jeffers v. United States, 432 U.S. 137, 155, 97 S. Ct. 2207, 53 L. Ed. 2d 168 (1977). Our double jeopardy analysis thereupon focuses on the elements of proof necessary to convict the defendant. The difference in statutory phrasing should not affect the right at issue. Assuming as true the Government's assertion that a defendant can violate Section 7262, but not Section 7203, if he pays the tax after engaging in ...