United States v. Hebeka

MERRITT, Chief Judge. This direct criminal appeal raises a significant double jeopardy question under the Food Stamp Act as well as three other trial issues. Hebeka, a grocer, appeals his two convictions for violating the Food Stamp Act in violation of 7 U.S.C. § 2024(c). He was also convicted in Count 3 of the indictment of defrauding the United States by violating 18 U.S.C § 287. Count 1 charges the defendant with violating § 2024(c) by presenting $7.2 million in food coupons under a false food stamp license. Count 2 charges a violation of § 2024(c) for presenting $3.45 million in food stamps in a transaction made illegal because Hebeka purchased them for cash instead of exchanging them for food. The $3.45 million in stamps described in Count 2 are part of the total $7.2 million in stamps charged in Count 1. The jury convicted on all counts, and the district court sentenced Hebeka to concurrent five-year sentences as to Counts 1 and 2, to run consecutively with a five-year sentence on Count 3. The defendant claims that the two food stamp convictions are the "same offense" for double jeopardy purposes and should be merged and treated as only one conviction. The principal issue before us is whether under § 2024(c) of the Food Stamp Act, the presentation of food stamps to the government based on two separate misrepresentations gives rise to two felonies or one felony. The defendant also asserts that a prior conviction for food stamp fraud and a prior consistent statement by a government witness were erroneously admitted against him and that the court below erred in reserving the defendants motion for acquittal at the end of the governments case. We agree that Counts 1 and 2 should merge under the Double Jeopardy Clause but do not agree that the three claimed trial errors require reversal.