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 alternativecrime 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 offregister 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