Thursday, November 10, 2016

Sixth Circuit Rejects Double Jeopardy Claim in Tax Prosecution …

Originally published by Jack Townsend.

In United States v. Rankin, 2016 U.S. App. LEXIS 19746 (6th Cir. 2016) (unpublished), here, the Court rejected a double jeopardy defense in a situation I would not have thought to even raise the defense.  (That is my limitation, because the defense was actually pretty creative in the facts even though not ultimately successful.)

The defendant a common shareholder in several corporations, some of which were losing money.  So he began transferring money from one corporation to others.  In the corporation with the money to spread around, he had at least one minority shareholder, a gentleman named Franks.  Franks sued the defendant in state court.  The state court issued a preliminary injunction to mitigate the losses in the interim.  The preliminary injunction required the defendant to continue serving the corporation from which money was transferred but enjoined him from receiving pay from that corporation.  On appeal of the preliminary injunction before he had done the service required, “The Ohio Court of Appeals held that requiring Rankin to serve as president without pay violated the Thirteenth Amendment’s prohibition on involuntary servitude. Franks v. Rankin, Nos. 11AP-934, 11AP-962, 2012-Ohio-1920, 2012 WL 1531031, at *14-15 (Ohio Ct. App. May 1, 2012).”

Rankin was thereafter indicted for failure to withhold and pay over (§ 7202), tax perjury (§ 7206(1)) and tax obstruction (§ 7212(a)).  Rankin moved to dismiss, arguing that the preliminary injunction requiring unpaid service (which he never served) was punishment making his prosecution for tax crimes unconstitutional double jeopardy.  There are several obvious problems with that argument.  The district court rejected it.  Rankin appealed.

The majority handily affirmed in three short paragraphs:

Rankin argues that this federal tax prosecution violates the Double Jeopardy Clause because it involves the “same offense” as Franks, a state civil case; and, in Rankin’s view, Franks already punished him criminally for that offense. The Double Jeopardy Clause prohibits the government from putting a person “in jeopardy of life or limb” twice for the “same offense.” U.S. Const. amend. V. Offenses are not the same when, looking at their statutory elements, they each “require[] proof of a fact which the other does not.” Jackson v. Smith, 745 F.3d 206, 211 (6th Cir. 2014) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)); United States v. Evans, 951 F.2d 729, 732-33 (6th Cir. 1991). Although here we could affirm the district court on multiple grounds, the simplest is that the federal tax charges in this prosecution are not the “same” as the state fiduciary-duty claims in Franks.

In Ohio, a fiduciary-duty claim has three basic elements: the existence of a fiduciary duty, the breach of that duty, and harm to the plaintiff. Wells Fargo Bank, N.A. v. Sessley, 188 Ohio App. 3d 213, 2010 Ohio 2902, 935 N.E.2d 70, 83 (Ohio Ct. App. 2010). A minority shareholder in a closely held corporation, like the plaintiff in Franks, must show specifically that a controlling shareholder misused corporate power for personal benefit at the minority’s expense. See Crosby v. Beam, 47 Ohio St. 3d 105, 548 N.E.2d 217, 220-21 (Ohio 1989).

The charges in this prosecution are completely different. The grand jury charged Rankin with tax crimes under three provisions of the Internal Revenue Code, and the government must prove each beyond a reasonable doubt. First, on the charge of failing to withhold taxes, the government must prove that Rankin willfully failed “to collect or truthfully account for and pay over” taxes imposed by the Internal Revenue Code. 26 U.S.C. § 7202. Second, on the charge of falsifying tax returns, the government must prove that Rankin willfully made false and material statements on federal income tax returns that he signed under penalty of perjury. 26 U.S.C. § 7206(1). Third, on the charge of obstructing the IRS, the government must prove that Rankin intimidated or impeded the IRS “corruptly or by force or threats of force.” 26 U.S.C. § 7212(a). The plaintiff in Franks did not need to prove any of these elements. And the government here does not need to prove that Rankin was a majority shareholder of a closely held corporation or that he violated his fiduciary duties. The “offenses” in Franks and this prosecution are not the “same” because each has elements the other does not. See Jackson, 745 F.3d at 211. Thus, this prosecution does not violate the Double Jeopardy Clause. The district court properly denied Rankin’s motion to dismiss.

That’s pretty short, so the concurring opinion found more to discuss, going beyond the majority opinion to reach issues that perhaps were not necessary (however interesting):

I agree with the majority that the district court’s order denying Defendant John Rankin’s motion to dismiss must be affirmed. I write separately to address two issues that were raised on appeal by Defendant which could benefit from further explanation not provided by the majority’s opinion. The first issue is whether the unconstitutional involuntary servitude provision in the state trial court’s order turned the state civil action into a criminal one; and the second issue is whether the dual sovereignty doctrine applies to bar the instant federal prosecution.

With regard to the first issue, Defendant argues that the involuntary servitude provision in the state trial court order constituted a criminal punishment which precludes the instant federal tax prosecution.

The Thirteenth Amendment states, in pertinent part, as follows:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

U.S. Const. amend. XIII.

It should first be mentioned that “it will not be possible to determine whether the Double Jeopardy Clause is violated until a defendant has proceeded through a trial to judgment” because “a court must also look at the ‘sanction actually imposed’ to determine whether the Double Jeopardy Clause is implicated.” Hudson v. United States, 522 U.S. 93, 102, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997). Defendant was not required to serve as president of CSI without pay because the provision of the trial court order at issue was held unconstitutional. Therefore, the involuntary servitude sanction was not actually imposed. Even if it was imposed, the Double Jeopardy Clause has yet to be implicated because Defendant has not gone to trial in the federal tax prosecution action, and his punishment in the federal case has yet to be determined.  [JAT Note:  Not sure I follow this reasoning.]

It should next be noted that “[u]nless th[e] sanction was intended as punishment, so that the proceeding is essentially criminal, the double jeopardy clause provided for the defendant in criminal prosecutions is not applicable.” Helvering v. Mitchell, 303 U.S. 391, 398-99, 58 S. Ct. 630, 82 L. Ed. 917, 1938-1 C.B. 317 (1938). The preliminary injunction order states in pertinent part that “CSI . . . shall pay no further salary . . . to [Defendant]” and Defendant “shall remain corporate President and may advise the interim Board on business matters before them as he and they see fit.” (R. 19, Preliminary Injunction Order, Sealed Ex. H, Page ID# 739-40.) Plaintiff asserts that the trial court judge did not intend to punish Defendant; rather, he attempted to maintain the status quo by recognizing the precarious financial situation CSI was in and acknowledging the benefits Defendant’s advice would have on the new CSI board if he remained president. Plaintiff is correct in arguing that the provision of the order requiring Defendant to work without pay was not meant as a criminal punishment. Defendant cites Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997), Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963), and United States v. Kozminski, 487 U.S. 931, 108 S. Ct. 2751, 101 L. Ed. 2d 788 (1988) to illustrate that the state trial court order imposed involuntary servitude, and by extension, a criminal punishment, which implicates the Double Jeopardy Clause and prohibits the instant tax prosecution. These cases do not support Defendant’s contention.

In Hudson, defendant bank officers challenged an indictment charging them with misapplication of bank funds, for which monetary penalties and occupational debarment had previously been administratively imposed by the Office of Comptroller of Currency (“OCC”) for essentially the same conduct. 522 U.S. at 95. The Hudson Court stated that “[w]hether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction.” Id. at 99 (citation omitted). A court must first ask whether the legislature, “in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Id. (citation and internal quotation marks omitted). The Supreme Court ultimately held, among other things, that the Double Jeopardy Clause protects only against the imposition of multiple criminal punishments for the same offense, and that the administrative penalties imposed by the OCC were intended to be civil penalties by the legislature and were not so punitive in effect as to render them criminal for double jeopardy purposes. Id. at 99-104.

Defendant’s “punishment” was arguably civil in nature as it was contained in a preliminary injunction order meant to preserve the status quo pending final determination of the state matter. See Davis v. Widman, 184 Ohio App. 3d 705, 2009-Ohio-5430, 922 N.E.2d 272, 284 (Ohio App. 2009) (noting how the purpose of a preliminary injunction is to preserve the status quo of the parties pending a decision on the merits) (citation and internal quotation marks omitted). Defendant argues that the provision did not maintain the status quo because it removed his ability to obtain income from CSI and forbade him from finding work elsewhere. I am not persuaded by Defendant’s argument because (1) the order preserved what funds CSI had left after Defendant had fraudulently transferred millions of dollars out of the CSI fund to cover losses in his other businesses, and (2) the order did not forbid Defendant from seeking employment elsewhere inasmuch as it ordered that he “shall” remain president and “may” advise on business matters. It did not forbid him from working elsewhere. Similar to the Supreme Court’s holding in Hudson, the punishment here was not criminal.

In Mendoza-Martinez, the Supreme Court was not faced with a double jeopardy issue. Rather, the issue was whether federal statutes that divested a person of United States citizenship if he or she left the country during a time of war as punishment were unconstitutional without affording that person procedural safeguards guaranteed by the Fifth and Sixth Amendments. 372 U.S. at 146-48. Thus, that case is inapposite to the matter at hand. In Kozminksi, the defendants were challenging their criminal convictions for conspiracy to hold, and actually holding, mentally challenged victims in involuntary servitude. The defendants forced, by physical and mental coercion, the victims to work seven days a week, for up to 17 hours per day, for little or no pay while forcing them to live in squalid conditions without adequate nutrition, housing, clothing, or medical care. 487 U.S. at 934-36. The issue in Kozminksi was whether involuntary servitude required the use of physical or legal coercion, and the Supreme Court held that it did. Id. at 943-44.

The cases Defendant cites do not support his contention that the unconstitutional provision in the state trial court order converted the state civil action between private parties into a criminal prosecution by the State of Ohio. While it is arguable that the state trial court order was a form of legal coercion, and by extension, involuntary servitude, this by itself does not save Defendant’s Double Jeopardy claim.

With regard to the second issue, Defendant contends that the dual sovereignty doctrine is inapplicable and that the government is barred from bringing the federal tax prosecution because the state court trial judge and the federal government both derive their authority to punish Defendant from the Thirteenth Amendment.

“The dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government.” Heath v. Alabama, 474 U.S. 82, 88, 106 S. Ct. 433, 88 L. Ed. 2d 387 (1985). Thus, “[w]hen a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences.'” Heath, 474 U.S. at 88 (quoting United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 67 L. Ed. 314, T.D. 3423 (1922)). The imperative determination in applying the dual sovereignty doctrine is “whether the two entities that seek successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns,” which “turns on whether the two entities draw their authority to punish from distinct sources of power.” Heath, 474 U.S. at 88 (citations omitted). “In those instances where the Court has found the dual sovereignty doctrine inapplicable, it has done so because the two prosecuting entities did not derive their powers to prosecute from independent sources of authority.” Id. at 90. With regard to the states and the federal government, the Supreme Court has held that “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.” Lanza, 260 U.S. at 382.

Defendant’s dual-sovereignty argument fails for two reasons. First, as discussed above, the preliminary injunction order arguably did not impose a criminal punishment because that provision, and the order as a whole, was arguably equitable in nature and intended to preserve the status quo. Second, even if Defendant can show that the provision turned the private civil action into a state-sponsored criminal prosecution and that both government actors derive their authority from the Thirteenth Amendment, Defendant does not make the requisite showing as to why the state court proceeding was a sham prosecution, as required by Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959). Bartkus stands for the proposition that a state or federal government cannot sidestep the constraints of the Double Jeopardy Clause through a “sham” prosecution by an ostensibly different sovereign. 359 U.S. at 122-24. The record clearly demonstrates that Defendant “has not made the startling showing” that the state court civil action between two non-governmental parties was “merely a tool” of the State of Ohio in undertaking this prosecution, “somehow ceding its sovereign authority to prosecute and acting only because the State told it to do so.” United States v. Djoumessi, 538 F.3d 547, 550 (6th Cir. 2008) (citing Bartkus, 359 U.S. at 123).

The Supreme Court and this Court have expressly held that cooperation between state and federal authorities for prosecutions of the same defendant for similar conduct does not offend the Double Jeopardy Clause. Djoumessi, 538 F.3d at 550-51 (quoting Bartkus, 359 U.S. at 123-24 (explaining that, although the record “establishes . . . that federal officials acted in cooperation with state authorities, as is the conventional practice between the two sets of prosecutors throughout the country, . . . [i]t does not sustain a conclusion that the state prosecution was a sham and a cover for a federal prosecution”)). Furthermore, the Bartkus sham-prosecution exception is a narrow one, and it is fair to wonder whether Bartkus is effectively limited to its facts. Djoumessi, 538 F.3d at 550 (noting that since Bartkus was decided in 1959, this Circuit has never ruled that [*14]  a prosecution violated double jeopardy protections under Bartkus‘ sham prosecution theory) (citations and internal quotation marks omitted).

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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