UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
February 24, 1984
UNITED STATES OF AMERICA
ALBERT W. COACHMAN, APPELLANT 1984.CDC.51 DATE DECIDED: FEBRUARY 24, 1984; AS AMENDED MARCH 9, 1984
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia. (Criminal No. 81-00090).
Robinson, Chief Judge, Wald, Circuit Judge, and Swygert,* Senior Circuit Judge. Opinion for the Court filed by Chief Judge Robinson.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
After trial by a jury, Albert W. Coachman was found guilty on 54 counts -- 18 each of mail fraud, *fn1 theft of Government property, *fn2 and false claims against the Government. *fn3 He was sentenced to concurrent terms of imprisonment for five years on each of the counts of mail fraud and theft, and to concurrent terms of three years on each of the counts of false claims, the three-year sentences to be served consecutively to those for five years. *fn4 Coachman attacks the convictions on grounds that evidence was erroneously admitted and then was improperly shielded from impeachment. Additionally, he claims that the Double Jeopardy Clause of the Fifth Amendment *fn5 barred any consecutiveness in the sentences. We reject Coachman's evidentiary challenges and find the sentences permissible. I
As a clerk in the Finance and Accounting Office of the Military District of Washington, Coachman serviced the payroll of the Defense Intelligence Agency . In this role he established accounts for new employees, adjusted individual payroll records, and closed accounts of terminated employees. These activities required Coachman to prepare computer documents calling for salary payments to employees and computer records of changes made in the payroll.
In the course of a routine audit, investigators detected discrepancies in the DIA payroll. The audit revealed that five individuals receiving DIA pay checks were not DIA employees, and that the agency lacked records authorizing their placement on the payroll. DIA then examined all documents submitted for the payroll during the following two pay periods, and found computer-generated forms, bearing Coachman's initials and payroll number, directing preparation and mailing of pay checks to the five non-employees. Further investigation unearthed 34 such checks issued on Coachman's instructions, of which 31 had been mailed and later paid on presentment, with a resulting loss of about $38,000 to the Government.
The indictment against Coachman charged a scheme to defraud the Government. It alleged that Coachman, without authority, placed the names of the five non-employees on the DIA payroll, and periodically submitted paperwork falsely representing that they were entitled to salary payments. The indictment averred that Coachman thus caused pay checks to be distributed through the mails to these non-employees and cashed by them, and that he shared the proceeds of the checks with the payees. The indictment theorized mail fraud through mailing of the ill-gotten checks, false claims against the Government through their presentment for payment, and theft from the Government through their cashing.
At trial, the Government called a number of witnesses and introduced numerous exhibits into evidence. Coachman offered no evidence and was convicted on all counts. Coachman challenges the handling of an item of the Government's proof and raises the specter of a double jeopardy violation through consecutive sentencing. II
The evidentiary issue centers on the introduction of a confession by one Gary Ballard, who was separately indicted as a participant in the criminal plot. Pursuant to a plea bargain prior to Coachman's trial, Ballard pleaded guilty to a single count of false claims against the Government. When called by the Government as a witness against Coachman, however, Ballard refused to answer any questions. The Government then offered, and was permitted to place in evidence, a Secret Service agent's recapitulation of an inculpatory statement made by Ballard after his arrest.
Coachman argues that Ballard's confession did not qualify as a declaration against interest and therefore was inadmissible hearsay. We are satisfied that the confession was not vulnerable on that ground. Rule of Evidence 804(b)(3) *fn6 rejects the common law requirement that the interest declared against be pecuniary or proprietary in nature, and extended the hearsay exception for such declarations to other types of self-damaging statements by an unavailable declarant, including one "which . . . at the time of its making so far . . . tended to subject him to . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." *fn7 Ballard's confession plainly was of that character, and his refusal to testify concerning it rendered him unavailable for purposes of the rule. *fn8
Whether a statement is in fact against interest depends upon the circumstance of the particular case. *fn9 We are mindful of the Advisory Committee's warning that an in-custody statement which inculpates another as well as the speaker may have been made with a view to currying favor with law-enforcement authorities, and consequently might not qualify as a declaration against penal interest. *fn10 Here, however, Ballard's version did not attempt to trivialize his own involvement in the nefarious scheme by shifting responsibility to his cohorts; rather, it frankly disclosed the extent of his own participation without any effort to demonstrate that others were really the ones to blame. Moreover, other evidence -- such as verification of Ballard's endorsement on fraudulently-obtained payroll checks, and tracing of several contemporaneous money orders and a personal check from Ballard into Coachman's bank account -- tended strongly to corroborate Ballard's confession.
However, for the very reason that Ballard's statement incriminated not only Ballard himself but Coachman as well, an entirely different problem is encountered. Admission of the confession where Ballard, because of his refusal to testify, was unavailable for cross-examination, deprived Coachman of the benefit of the Confrontation Clause of the Sixth Amendment. *fn11 The case fell squarely within the Supreme Court's Bruton holding, *fn12 and Ballard's confession should not have been received in evidence. *fn13
Nonetheless, this error does not warrant reversal of Coachman's convictions. The record is replete with properly admitted evidence, both physical and testimonial, of Coachman's deep involvement in the criminal enterprise. Moreover, as we have noted, Coachman made no effort whatsoever to rebut the Government's proof in any wise. We thus are led to believe that "the 'minds of an average jury' would not have found the [Government's] case significantly less persuasive had the testimony as to [Ballard's] admissions been excluded." *fn14 By our estimate, "the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of [Ballard's] admission[s] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission[s] was harmless error." *fn15 III
Coachman also contends that the District Court's imposition of consecutive sentences on the counts charging theft of Government property and false claims against the Government transgressed the Double Jeopardy Clause. *fn16 He asserts that, in these 18 instances of consecutiveness, he is being punished twice for the false claims violations because, he says, each was a lesser-included offense of a theft violation for which he was convicted. We thus are brought to consider the methodology for determining whether this particular combination of consecutive sentences for Coachman's factually-related misdeeds constitutes impermissible multiple punishments.
Indubitably, the Double Jeopardy Clause sets a limit on cumulation of punishments for criminal behavior. *fn17 Since, however, the power to define crimes and dictate punishments for their commission is wholly legislative, *fn18 and is not confined to prescription of a single punishment for a single crime, *fn19 "the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishment the Legislative Branch has authorized." *fn20 As recently described by the Supreme Court,
"where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." . . . Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended . . . to impose multiple punishments, imposition of such sentences does not violate the Constitution. *fn21
The Court has also sketched a multi-step analytical process by which judges may determine whether the legislature meant to authorize cumulative punishments for conduct infringing two or more separate statutory provisions. The court should first resort to the language of each provision for possible explanation of how the punishments it prescribes relate to those authorized by the other. *fn22 If the provisions are silent or ambiguous on the interaction of punishments, the court should explore the legislative history of each section for legislative intent respecting multiple punishments. *fn23 Should the legislative design remain obscure, the court should then invoke the judicially-fashioned Blockburger standard *fn24 in a continuing effort to ascertain the legislative will:
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact the other does not. *fn25
If, but only if, these techniques fail to reveal the legislative intent, the court should invoke the settled rule that ambiguity concerning the ambit of a criminal statute "should be resolved in favor of lenity." *fn26
We turn, then, to determine, advertently to these principles, whether Congress intended to make the cashing of a fraudulently-obtained United States Treasury check punishable both as the presentation of a false claim -- here, the check -- for payment by the Government, and as a theft from the Government through acquisition of the proceeds of the check.
We begin with an examination of the statutory language defining the offenses of false claims upon and theft from the Government. In relevant part the false claims section reads:
Whoever makes or presents to any person or officer in the civil . . . service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be fined not more than $10,000 or imprisoned not more than five years, or both. *fn27
The pertinent portion of the theft section provides:
Whoever . . . steals, purloins, or knowingly converts to his use or the use of another, . . . any . . . money, or thing of value of the United States or of any department or agency thereof, . . . shall be fined not more than $10,000 or imprisoned not more than ten years, or both. *fn28
We note at the outset that these two provisions appear in different chapters of the federal criminal code, and that facially they define independent crimes carrying separate penalties. While these formats are some indication of a purpose to create separately-punishable offenses, *fn29 the statutory texts do not themselves shed significant light on the question whether Congress envisioned consecutive sentences for conduct trespassing upon each. Similarly, though unfortunately, the legislative history supplies no insight into the problem. *fn30 Consequently, in our quest for congressional intent respecting cumulative punishment under these sections, we must resort to the Blockburger test: "whether each provision requires proof of a fact the other does not." *fn31
Coachman contends that, in applying this test, we should look, not to the statutorily-specified elements of the offenses, but rather to the facts of the case as alleged in the indictment and established by the evidence. When this is done it is seen, he says, that the false claiming which the Government averred and proved was also the very action that made possible the thefts. Both the indictment and the trail evidence portrayed a scenario in which Coachman violated the theft statute by causing the issuance of pay checks to non-employees, the mailing of those checks to the payees, the presentment of the claims represented by the checks for payment, and the cashing of the checks and the distribution of the proceeds. And with the false claims counts cast as they were, the jury could not have convicted Coachman of that offense without finding that he caused the same pay checks to be fraudulently obtained and presented for payment. Coachman thus concludes that there was no fact essential to demonstration of false claims that was not also an indispensable ingredient of the thefts, and that accordingly the false claims violations merged into the completed crimes of theft, with the result that consecutive sentences for false claims and theft were improper.
This approach, though for a short while in vogue in this circuit, *fn32 assumes an erroneous premise. The Supreme Court has consistently indicated that Blockburger calls for comparison of the statutorily-prescribed elements of the offenses, not the constituent facts either as alleged or proven. *fn33 The Court has stated unqualifiedly that "application of the [ Blockburger ] test focuses on the statutory elements of the offense";34 it has emphatically disavowed an attempt to apply the test "to the facts alleged in a particular indictment";35 and it has declared that "if each [offense] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes."36 We ourselves have now settled on that course as the methodology for applications of Blockburger.37
Proceeding, then, in that direction, our analysis of the false claims and theft statutes reveals that Blockburger tolerates the consecutive sentences levied in this case. An essential element of false claims is that the accused has presented a claim knowing it to be false, fictitious or fraudulent,38 but there is no requirement that the claim has actually been honored.39 Theft of governmental property, on the other hand, is essentially larceny from the Government,40 and contrasts with false claims in that the accused must actually have succeeded in wrongfully separating the Government from its money or other valuables.41 Unlike false claims, however, theft from the Government need not be accomplished by false pretenses or other fraudulent means.42 Since each of these offense thus incorporates elements which are not components of the other, Blockburger presumes that Congress intended to permit cumulative punishments.43 It follows that the District Court's imposition of consecutive sentences produced neither a constitutional nor a statutory infraction.
The judgment appealed from is accordingly
APPELLATE PANEL: FOOTNOTES
* Of the United States Court of Appeals for the Seventh Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1976).