Appeal from the United States District Court for the Southern District of Illinois. No. 06-cr-30049-WDS-William D. Stiehl, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, MANION, and HAMILTON, Circuit Judges.
The defendant was convicted by a jury of bankruptcy fraud, obstruction of justice, and possession of child pornography, and was sentenced to 144 months in prison. His appeal challenges both the convictions and the sentence.
The events giving rise to this case go back a long way. In 1967 the defendant married. Seven years later he began an affair with his wife's 16-year-old sister. In the course of the affair, which lasted several months, he took nude photographs of her that the jury found were sexually explicit within the meaning of the child-pornography statute; he does not contest that finding. In response to her later request for the pictures, he gave her some of them (which she then destroyed) and, without telling her, retained others in a file in his office.
In June 2003 the Peels divorced, and agreed to a marital settlement. The following year Peel filed suit in an Illinois state court to vacate the settlement. The year after that he filed for bankruptcy and asked the bankruptcy court to discharge the financial obligations to his ex-wife that the settlement agreement had imposed. She opposed the discharge and filed a claim for the money that he owed her under the settlement. "Discharge" may not be the right word for what he was seeking-"abandonment" probably is better-because his debt to her under the settlement probably was not dischargeable in bankruptcy under the Bankruptcy Code as it then read. 11 U.S.C. §§ 523(a)(5), (15)(A), (B) (2005); In re Crosswhite, 148 F.3d 879, 881-82 (7th Cir. 1998); In re Reines, 142 F.3d 970, 972-73 (7th Cir. 1998); In re Daulton, 139 B.R. 708, 710 (Bankr. C.D. Ill. 1992). (Under the current Code, it almost certainly would not be dischargeable. See 11 U.S.C. §§ 101(14A), 523(a)(5), (15).) So he had to persuade her to drop the claim.
Negotiations looking to compromise it were predictably acrimonious and in the course of them the defendant told her about the nude photographs of her sister and said that "these would be . . . an item that would likely get out into the public if we didn't stop this escalating battle of putting things in the newspaper." He backed up his threat by placing photocopies of the photographs in her mailbox. She complained to the police and later to federal authorities, and at their direction made recorded phone calls to the defendant. The conversations confirmed that he was blackmailing her with the photographs. He faxed her a draft of a settlement agreement that she had previously rejected, adding a provision requiring him to return certain unidentified photographs to her. They met and he showed her the originals. The meeting was recorded, and included an exchange in which she said: "So you resort to blackmailing me?" He replied: "There's nothing left. I'm down to: no kids; no grand-kids; no money." "And, so," she responded, "blackmailing me with photographs . . . . Okay, but as long as I go ahead and sign these settlement agreements . . . ." He replied: "Right then you have . . . ." And she: ". . . you'll give me the photographs . . . ." And he: "On the spot."
He was convicted as we said of both bankruptcy fraud and obstruction of justice. He argues that to convict him of both violated the double jeopardy clause of the Fifth Amendment, because one offense is included in the other. It might seem that there would be no issue of double jeopardy in a case in which multiple convictions occurred in the same trial, Williams v. United States, 150 F.3d 639, 641 (7th Cir. 1998); United States v. Masters, 978 F.2d 281, 285 (7th Cir. 1992), since the purpose of the clause is " 'to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.' " Missouri v. Hunter, 459 U.S. 359, 365-68 (1983), quoting Burks v. United States, 437 U.S. 1, 11 (1978). But the Supreme Court has held that "with respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause . . . prevent[s] . . . the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, supra, 459 U.S. at 366; see also Ohio v. Johnson, 467 U.S. 493, 499 (1984) ("the final component of double jeopardy-protection against cumulative punishments- is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature"); United States v. Konopka, 409 F.3d 837, 838-39 (7th Cir. 2005); United States v. Fischer, 205 F.3d 967, 969 (7th Cir. 2000); United States v. Hector, 577 F.3d 1099, 1100-11 (9th Cir. 2009); United States v. Miller, 527 F.3d 54, 70-73 (3d Cir. 2008). Some of the Justices disagree with this extension of the double jeopardy clause-see the discussion of their views in White v. Howes, 586 F.3d 1025, 1032-35 (6th Cir. 2009)-but for now, at least, it is the law and binds us.
So are bankruptcy fraud and obstruction of justice committed in a bankruptcy proceeding the same offense for purposes of double jeopardy? Bankruptcy fraud requires, so far as relates to this case, that the defendant "knowingly and fraudulently . . . offers compensation . . . for . . . forbearing to act in any case under" the Bankruptcy Code. 18 U.S.C. § 152(6). ("[F]orbearing to act" in this case would mean his ex-wife's abandoning her bankruptcy claim.) Obstruction of justice requires that the defendant "corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so." 18 U.S.C. § 1512(c)(2). So the elements of the offenses are different, as the government points out. But since a bankruptcy proceeding is an "official proceeding," within the meaning of the obstruction of justice statute, 18 U.S.C. § 1515(a)(1)(A) ("the term 'official proceeding' means . . . a proceeding before . . . a bankruptcy judge"), the defendant's conviction for having attempted fraudulently to influence the bankruptcy proceeding by blackmailing his ex-wife into agreeing to drop her claim convicted him of obstruction of justice as well.
The test for "whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Missouri v. Hunter, supra, 459 U.S. at 366, quoting Blockburger v. United States, 284 U.S. 299, 304 (1932). The test was flunked here because convicting Peel of obstruction of justice did not require proof of any fact that didn't have to be proved to convict him of bankruptcy fraud. It was thus a lesser-included offense of bankruptcy fraud and the Blockburger test makes clear, and many cases hold, that to punish a person for a lesser-included offense as well as the "including" offense is double jeopardy unless Congress intended the double punishment. Rutledge v. United States, 517 U.S. 292, 297-98 and n. 6 (1996); United States v. Fischer, supra, 205 F.3d at 969; United States v. Xavier, 2 F.3d 1281, 1291 (3d Cir. 1993). The government does not argue that Congress intended that.
This is like a case in which a person is tried for both murder and attempted murder. The elements are different, but since conviction for murder automatically convicts the defendant of attempted murder (for there can be no murder without attempting the deed), the defendant cannot be convicted of both crimes. See, e.g., People v. Davidson, 70 Cal. Rptr. 3d 913, 917-18 (App. 2008). There is an exception for cases in which the defendant was convicted of the lesser-included offense before he could have been prosecuted for the greater one, as when the defendant is convicted of attempted murder and later his victim dies. In such a case he can be tried for murder. People v. Carrillo, 646 N.E.2d 582, 584-85 (Ill. 1995). The exception has no application to this case, which must therefore be remanded with directions that the judge vacate one of the two convictions.
The defendant argues that his conviction for obstruction of justice is the one that should be vacated, even though it carries the higher statutory maximum sentence, because it is a lesser-included offense of bankruptcy fraud. It is lesser in the sense of having fewer elements, see United States v. Smith, 34 F.3d 514, 517-18 (7th Cir. 1994); United States v. Harley, 990 F.2d 1340, 1343-44 (D.C. Cir. 1993), because one can commit obstruction of justice without committing bankruptcy fraud but not bankruptcy fraud without committing obstruction of justice. That is the only sense of "lesser" that matters under the Blockburger test: that offense A has elements a, b, c, and offense B has elements a, b, c, and d, so that conviction of B automatically convicts the defendant of A as well. The remedy is to eliminate the doubleness. But which conviction must be vacated is not dictated by the Constitution. It is a matter committed to the trial judge's discretion because functionally it is a decision concerning the length of the defendant's sentence. Ball v. United States, 470 U.S. 856, 864 (1985); Lanier v. United States, 220 F.3d 833, 841-42 (7th Cir. 2000); United States v. Fischer, supra, 205 F.3d at 970 n. 2; United States v. Hector, supra, 577 F.3d at 1103-04; United States v. Miller, supra, 527 F.3d at 74. But usually it's the conviction carrying the lesser penalty that is vacated. As we noted in Lanier, it would be paradoxical to give the defendant a shorter sentence than he would have received had the government not also charged him with the less serious offense. 220 F.3d at 842.
What is true is that in a case in which the lesser-included offense has fewer elements and is the less serious offense, vacating the sentence for the graver offense would be an abuse of discretion: imagine convicting a person of attempted murder and of murder and punishing him only for the attempt. This is not such a case; the lesser-included offense of obstruction of justice is the graver offense.
The defendant argues that it was not proved beyond a reasonable doubt that he had committed either bankruptcy fraud or obstruction of justice. Regarding the obstruction charge, he argues that he did not act "corruptly" because he was prepared to disclose the photographs to the bankruptcy court. That is a distortion of the deal he tried to make with his ex-wife. The deal was that she would abandon her claim and in exchange would get the photographs. He expected her to keep them secret from the world, including the bankruptcy court, not only because they were an embarrassment but also because if the bankruptcy judge discovered that his ex-wife had been blackmailed into dropping her claim he would be certain to notify the authorities and the deal would collapse. Peel's expectation of ...