In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3601

United States of America,

Plaintiff-Appellee,

v.

Catalina Bacani,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:99CR00023--Sarah Evans Barker, Judge.


Argued December 13, 2000--Decided January 5, 2001




  Before Coffey, Easterbrook, and Manion, Circuit
Judges.

  Easterbrook, Circuit Judge. During its first nine
months of operation, Scoops, Inc., a convenience
store in Indianapolis, reported gross income of
about $90,000. It also redeemed approximately
$173,000 in food stamps, a legal impossibility
because food stamps may be collected only for
eligible food items, a subset of all sales.
Something was amiss. Either Scoops was not
reporting all of its income, or it was buying
food stamps at a discount (also legally
forbidden) and redeeming them at face value.
Concluding that the latter was more likely, a
grand jury indicted Catalina Bacani, Scoops’
owner and the person who signed its food stamp
redemption requests, for violating 7 U.S.C.
sec.2024(b)(1) (unlawful acquisition of food
stamps) and sec.2024(c) (unlawful redemption of
food stamps). A jury convicted her of these
crimes, and despite her lenient sentence (which
does not include any jail time) she has appealed.
Luckily for her, the United States did not file
a cross-appeal. (Application of the criteria in
U.S.S.G. sec.2F1.1 could have produced an offense
level of 14, for which the sentencing range would
have been 15-21 months’ imprisonment for a first
offender such as Bacani.)

  Bacani’s defense throughout has been that the
grand jury picked the wrong crime. At trial,
Bacani’s lawyer argued that she lacked the mental
state necessary for conviction under sec.2024
because Frank Alnadi, Bacani’s boyfriend, really
had been running Scoops, and that Alnadi told her
what to do. This defense painted Bacani as a
persistent liar, for when Scoops applied to
participate in the food stamp program Bacani
represented herself as Scoops’ owner and
principal manager and swore that she would be
responsible for all food stamp redemptions; every
redemption request bore her signature verifying
that Scoops had acquired the stamps in exchange
for eligible food items. If all of these
representations were false, because Alnadi really
was in charge and Bacani was no more than a
cashier, then Bacani violated 18 U.S.C. sec.1001
at least a dozen times--and she violated sec.2024
too, because she does not deny that she knew
exactly what she signed. That someone else may
have been the brains of the scheme is no defense.

  On appeal, with the assistance of a different
lawyer, Bacani advances a different alternative-
crime theory. Now she contends that her crime may
have been tax fraud--by understatement of Scoops’
income--rather than food stamp fraud. Her
appellate brief contends that the prosecution’s
case rests on a difference between Scoops’
reported gross sales and its food stamp
redemptions. Both the corporation’s income
reports filed with state officials and the food
stamp redemption requests bear Bacani’s
verification of correctness; neither is more
reliable than the other. Thus it is as likely,
the brief contends, that the report of sales was
too low as it is that the redemption request was
too high. If the two crimes are equally likely,
the argument concludes, then Bacani must be
acquitted, because a 50-50 chance that the crime
is food stamp fraud is well short of the
reasonable-doubt standard that the prosecution
must meet.

  One premise of this contention is that tax
fraud and food stamp fraud are mutually
exclusive, so that Bacani could commit one or the
other but not both. That’s not true; it is
possible (indeed, we think it likely) that Bacani
not only understated Scoops’ sales (and thus its
taxable income) but also overstated the amount of
food stamps the store accepted in exchange for
eligible items. The record establishes that
Scoops tried to report even less income, but that
its accountant caught the store making off-
register sales and increased reported receipts
from $60,000 to $90,000. No matter how much
Scoops chiseled on its taxes, however, it may
have redeemed more food stamps than it lawfully
received. It may, for example, have purchased
food stamps for cash from customers (or other
stores), or accepted food stamps for ineligible
items such as cigarettes, liquor, newspapers, or
other non-food items that represent the stock in
trade of convenience stores. Observing that tax
fraud is a possibility therefore does not rule
out food stamp fraud. The prosecution showed, for
example, that Scoops’ food stamp redemptions were
an order of magnitude higher than those of other,
similar convenience stores in its immediate
vicinity. What is more, Scoops redeemed some food
stamps that an undercover agent had sold, for
cash (and thus illegally), to another local
convenience store. The only way Scoops could have
come into possession of those food stamps was by
buying them from the store that purchased them
from the agent, and such a purchase (followed by
a redemption) violates both sec.2024(b)(1) and
sec.2024(c). A rational jury easily could have
found the evidence sufficient beyond a reasonable
doubt even if it thought the corporation’s
$90,000 sales report utter baloney.

  A second premise of Bacani’s appellate argument
is that, when it is certain that the defendant
committed some crime, but hard to tell which
crime, then the jury must acquit outright. Why
would that be so? Once criminal conduct has been
established beyond a reasonable doubt, punishment
constitutionally may follow.

  Consider, for example, a person charged with
first-degree murder who defends on the theory
that the crime was no greater than manslaughter,
a lesser included offense. If the jury concludes
that it is equally likely that the defendant’s
mental state amounted to first-degree murder and
that it amounted only to manslaughter, must the
jury acquit of both offenses? Not at all; the
jury will be told to convict of the lesser
offense (because the evidence does not establish
the greater beyond a reasonable doubt), not that
it must set the defendant free.

  Next consider the case of inconsistent
declarations: the defendant makes two statements
under oath, each material to a proper inquiry,
but diametrically opposed. Only one of the
statements can be true; the other is perjury, but
the prosecution cannot establish beyond a
reasonable doubt which of the two statements is
the false one. This situation is similar to the
one Bacani contends this record presents, with
either false sales data or false food stamp
redemptions but no way to know which is the lie.
In the inconsistent-declarations case, however,
all the prosecution need prove is the
inconsistency and the materiality of the two
statements; it is not essential to show beyond a
reasonable doubt which statement is the lie. 18
U.S.C. sec.1623(c). The inconsistent-declarations
statute lacks a direct parallel in sec.2024, but
recall that Bacani is making a constitutional
defense. If sec.1623(c) is constitutional (and it
is), then there is no constitutional problem with
convicting Bacani even though we cannot be
certain just which of her irreconcilable
statements is false.

  Finally, consider genuinely irreconcilable
crimes. Robbing a bank and possessing the
proceeds of a bank robbery are independent, but
as a matter of law mutually exclusive, offenses
under 18 U.S.C. sec.2113. See Heflin v. United
States, 358 U.S. 415 (1959). A bank robber must
be convicted of that robbery and cannot be
convicted separately of possessing the proceeds.
Conversely, someone who receives the proceeds
from the robber, and therefore may be convicted
of possession under sec.2113(c), cannot have been
the robber and must not be convicted of that
offense. Suppose police find someone in
possession of money recently stolen from a bank,
and the evidence that this person is the bank
robber is equivocal. By Bacani’s argument the
person cannot be convicted of any crime, for the
evidence does not show beyond a reasonable doubt
that he is the bank robber, and it also does not
show beyond a reasonable doubt that he is not the
bank robber (which is essential to conviction for
possessing the proceeds). To avoid such a
windfall for criminals, United States v. Gaddis,
424 U.S. 544 (1976), held that the only
prohibition is against multiple convictions for
the incompatible offenses. If the evidence shows
that the defendant must have committed one of the
offenses, but does not enable a jury to choose
with confidence, the defendant’s entitlement is
to be convicted of only one--perhaps the less
serious, but one conviction is proper. Id. at
550. See also Richard A. Posner, The Problematics
of Moral and Legal Theory 121-22 (1999). Just so
here. That Bacani committed multiple crimes is
certain, and doubt about just which crimes these
were does not make conviction impossible. She
does not contend that punishment for multiple tax
frauds or false statements to federal agencies in
violation of sec.1001 would have been lower than
her punishment for food stamp fraud, so she has
no complaint.

Affirmed
