Double Jeopardy and Criminal Tax Litigation
The Fifth Amendment to the United States Constitution holds various protections for criminal defendants. One of the more well-known clauses is the Double Jeopardy Clause – “no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” On its face, this clause protects a criminal defendant from being tried twice for the same offense. For example, if a criminal tax defendant is charged with failure to file a tax return, and is subsequently acquitted at trial, the federal government is barred from recharging the defendant with failure to file for those tax years.
The above example is simple to understand. However, what if the government wanted to charge the defendant with a new offense for the same underlying conduct? For instance, filing a false return (tax fraud)? Or tax evasion? Would the double jeopardy clause protect the defendant from any further prosecution during those tax years? Or does the new offense pull the prosecution out from underneath the double jeopardy umbrella?
The Supreme Court has expounded on the reaches of the double jeopardy clause in various case law over the last 100 years. In this post, we will cover some of the base line rules for any double jeopardy analysis, and then review how those rules have been applied to criminal tax prosecutions in federal court.
The Supreme Court struggled initially to define the term “same offense” in the double jeopardy clause. In 1932, the Court clarified how the term same offense should be analyzed in the lower courts, holding “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 an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299 (1932).
In practice, the Courts look to the elements of the two statutes to determine if both statutes require proof of a unique elemental fact (elemental approach). The Texas murder and manslaughter statutes provide an easy example of how this works. Under Texas law, murder requires the state to prove the defendant intentionally or knowingly caused the death of another. Manslaughter requires the state to prove the defendant recklessly caused the death of another. Comparing the elements of each statute, the manslaughter statute does not require proof of a unique elemental fact. The murder statute completely consumes the manslaughter statute. Every legitimate murder conviction is also manslaughter. Every intentional act is also reckless. It is important to remember that BOTH statutes must provide a unique elemental fact the other does not. Although murder requires a unique fact (intent), the manslaughter statute fails to require something not already covered by the murder statute.
Under Blockburger, the murder and manslaughter statutes in Texas are the same offense for purposes of the double jeopardy clause. If a criminal defendant is found not guilty of murder or manslaughter, the state is prohibited from charging the defendant with the other offense for the same underlying conduct.
Leaving the Confines of the Statute
The statutory analysis is just the first step. In the case of murder and manslaughter, it is the only step needed to verify the two offenses are “the same.” However, the Supreme Court has advised lower courts to look beyond the language of the statute to ensure the defendant is not being convicted of, or punished for, the same offense.
In Harris¸ the Supreme Court was asked to determine whether Oklahoma’s felony murder statute was the “same” as the robbery statute. Put differently, whether a conviction for felony murder barred subsequent prosecution for robbery. The felony murder statute required the state to prove a murder occurred during the commission of an underlying felony. The underlying felonies included robbery, rape, burglary, and other serious offenses.
On the face of the statute, Oklahoma’s felony murder and robbery statutes are not the same under the Blockburger analysis. Felony murder required the proof of a death and no evidence of robbery. A death caused during the commission of a rape would meet the elements of the statute. In that case, the felony murder statute does not consume the robbery statute. Each statute requires proof of a distinct elemental fact the other does not.
However, this acknowledgment did not end the analysis. The Supreme Court noted the state had charged the defendant with felony murder using robbery as the underlying predicate act. The state was required to prove the defendant committed a robbery and a death occurred as a result. Under those facts, there is little doubt the felony murder charge consumed the robbery charge. The exact elements included in the robbery statute were required to prove felony murder as charged.
The Supreme Court ruled the state was barred from prosecuting the defendant for robbery following his conviction for felony murder.
Double Jeopardy and Multiple Punishments
In Blockburger, the assumption is that there are two prosecutions, distinct in time, for separate statutory offenses. Those facts leave the door open for a person to be punished for the same offense in one charging instrument. If a person is convicted of two offenses in one trial, can he be punished for both? Or does the double jeopardy clause, and the Blockburger analysis, bar multiple punishments for the “same” offense?
The Supreme Court clarified the double jeopardy clause’s role in multiple punishment in Ohio v. Johnson, 467 U.S. 493 (1984). In Johnson, the Supreme Court acknowledged that multiple punishments, for purposes of the double jeopardy analysis, is a question of legislative intent. If a statute specifically authorizes cumulative punishments for the same offense, then a district court will not run afoul of the double jeopardy clause by following the legislature’s advice.
However, if the statute does not clearly approve of multiple punishments, a reviewing court should look at the elements of the two offenses of conviction to determine if they are the “same.” If they are not, the Court should review the offense as charged under the logic in Harris. If the two offenses are found to be the same under either test, a district court will run afoul of the double jeopardy clause by sentencing the defendant under both convictions.
Double Jeopardy, Multiple Punishments and Criminal Tax
Criminal tax litigation provides a good backdrop for analyzing a Blockburger/Harris issue. Two of the most common criminal tax charges are filing a false return (tax fraud) and tax evasion. These allegations may be charged simultaneously for one continuing course of conduct. The Eleventh Circuit reviewed the implications of punishing a defendant under both violations in United States v. Kaiser, 893 F.2d 1300 (11th Cir. 1990).
In Kaiser, the defendant was charged with criminal tax violations in four counts: 1) counts one and two alleged tax evasion for tax years 1979 and 1980 and 2) counts three and four alleged filing a false return for tax years 1979 and 1980. Kaiser pleaded guilty to all four counts. The district court sentenced the defendant to 2 years in prison on counts one and two, and five years-probation on counts three and four. The sentences were ordered to run consecutively.
Kaiser appealed the district court’s sentence arguing that consecutive sentences for tax evasion and filing a false return in the same tax years violated the protections of the double jeopardy clause. On review, the Eleventh Circuit looked to the elements of each statute to determine if tax evasion and filing a fraudulent return were the “same offense” under Blockburger.
Tax evasion is codified under 28 U.S.C. § 7201. To prove tax evasion, the government must show willfullness, the existence of a tax deficiency, and an affirmative act constituting an evasion or attempted evasion of the tax. Filing a fraudulent return (or tax fraud) is codified under 28 U.S.C. § 7206. To prove filing a false return, the government must show the making and subscribing of a return, the return contained a declaration made under the penalty of perjury, the person who made the declaration did not believe every material fact was true, and the defendant acted willfully.
These two statutes are not the same under Blockburger. The evasion statute requires proof of an affirmative act of evasion. The tax fraud statute requires the defendant physically file a return. Neither statute can totally consume the other. Each statute requires proof of a unique elemental fact. Under Blockburger, the statutes are not the same.
Adding the Government’s Proof under Harris
After determining the two statutes of conviction were not the same under Blockburger, the Eleventh Circuit moved to the Harris analysis. This required the Court to review the government’s evidence and the charging instrument. The Court looked at the underlying conduct alleged in the indictment.
Under the tax evasion counts, the government was required to show an act of deception to avoid a federal tax. The government alleged the defendant evaded the tax by filing a fraudulent return. As indicted, the government had to prove tax fraud to meet a central element of tax evasion. In that scenario, the tax evasion counts completely consume the tax fraud counts. There is no longer a unique elemental fact that must be proven under the filing a false return counts in the indictment.
The Eleventh Circuit overturned both the convictions and sentences for the tax fraud counts. They upheld the convictions and sentences for the tax evasion counts. Under the double jeopardy clause, a criminal tax defendant may not be convicted or sentenced to both tax evasion and filing a fraudulent return when filing a fraudulent return is the overt act that forms the basis for the evasion count.
Most attorneys understand the elemental analysis under Blockburger. Many of the law books provide a comprehensive list of offenses that consume the elements of lesser violations.
However, the statutory analysis only covers the first step in determining whether an offense is the same under the double jeopardy clause. Two offenses that appear different on their face may very well be the same as charged. The Court’s decision in Kaiser gives a great example of this phenomenon in commonly litigated criminal tax violations – tax evasion and tax fraud.
This blog only covers the tip of the iceberg when it comes to double jeopardy jurisprudence. Each state has formed their own standards to determine whether an offense is the same under the clause. For instance, Texas has adopted a lengthy analysis where the elemental test of Blockburger is one consideration. A red flag should go up for all criminal tax attorneys when a defendant is either a) charged with different violations for the same conduct in one indictment or b) charged with a new offense that covers similar underlying conduct as a previous prosecution. If those flags are met with case law research, attorneys can ensure their clients are not being prosecuted contrary to their Fifth Amendment rights.