United States v. Rice ( 1997 )

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
3-17-1997
United States v. Rice
Precedential or Non-Precedential:
Docket 96-7213
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 96-7213
___________
UNITED STATES OF AMERICA
v.
MELINDA RICE
a/k/a MELINDA EDWARDS
Melinda Rice,
Appellant
_______________________________________________________
On Appeal from the District Court of the Virgin Islands
Division of St. Thomas and St. John
(D.C. Criminal No. 95-cr-00044-2)
___________________
Argued December 12, 1996
Before: SCIRICA, NYGAARD and McKEE, Circuit Judges
(Filed March 17, 1997)
CHARLES E. ENGEMAN, ESQUIRE (ARGUED)
Dudley, Topper and Feuerzeig Law House
1A Frederiksberg Gade
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00804
Attorney for Appellant
AUDREY L. THOMAS-FRANCIS, ESQUIRE (ARGUED)
Office of the United States Attorney
United States Courthouse, Suite 260
5500 Veterans Drive
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00802
Attorney for Appellee
1
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
The issue on appeal is whether a general discharge
under honorable conditions from the United States Army for
cocaine possession bars a subsequent federal criminal prosecution
on double jeopardy grounds.
I. Facts and Procedural History
On December 26, 1994, Melinda Rice, a private in the
United States Army, attempted to clear United States customs at
the Cyril E. King airport in St. Thomas, U.S. Virgin islands, en
route to the United States. During a routine inspection, a
customs agent asked Rice to open a package in her suitcase. The
package contained 7.5 lbs. of cocaine. Rice's companion at the
airport, Teddy Lorenzo Bryan, claimed ownership of the cocaine.
After a brief detention, Rice was permitted to travel to her base
at Fort Gordon, Georgia. But customs officials informed military
investigators at Fort Gordon that Rice had attempted to clear
U.S. customs with cocaine.
The Army's Criminal Investigation Division conducted an
investigation. After Rice provided the Army with information
about the "Island Boys," a narcotics smuggling ring, the Army
charged her with violating Article 112a of the Uniform Code of
Military Justice.1 But Rice was never prosecuted. Instead,
1. Art. 112(a) of the Uniform Code of Military Justice, 10
U.S.C. § 912(a), provides: "Any person subject to this chapter
who wrongfully uses, possesses, manufactures, distributes,
2
Rice's commanding officer recommended her discharge from the Army
in accordance with 32 C.F.R. Part 41 and Chapter 14, 12-C of Army
Regulation AR 635-200. The commanding officer made this
recommendation because there was "substantial evidence" that Rice
had engaged in drug possession and drug smuggling activities.
Since Rice had served in the army for less than six years, she
had no right to an administrative discharge hearing. 32 C.F.R.
Part 41, App. A, Part 2(B)(1)(g). Although Rice was given an
opportunity to submit a written statement to her commanding
officer, she declined to do so. Rice received a "General
Discharge (Under Honorable Conditions)." As a result of her
discharge, Rice forfeited her G.I. College Fund investment worth
$1200, her Civilian Service Retirement Credit, and her vested
interest in the Army's retirement plan.
In April 1995, the United States Attorney for the
Virgin Islands indicted Rice for conspiracy to distribute
cocaine, possession with intent to distribute cocaine, and
attempt to import cocaine, in violation of 21 U.S.C. §§
841(a)(1), 952(a) and 963. Rice filed a motion to dismiss her
indictment on double jeopardy grounds, claiming her general
discharge was punishment and the functional equivalent of a
criminal prosecution barring subsequent prosecution for the same
(..continued)
imports into the customs territory of the United States, exports
from the United States, or introduces into an installation,
vessel, vehicle, or aircraft used by or under the control of the
armed forces a substance described in subsection (b) shall be
punished as a court-martial may direct." Cocaine is one of the
substances enumerated in subsection (b).
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offense. The government argued the general discharge was not
punishment because it was remedial in nature.
The district court denied Rice's motion, finding her
Chapter 14 general discharge did not constitute punishment for
double jeopardy purposes. Even if the discharge were punishment,
the court held jeopardy had not attached during Rice's
administrative discharge proceeding. United States v. Rice, 919
F. Supp. 183 (D.V.I. 1996). This interlocutory appeal followed.
The district court stayed the trial pending appeal.
II. Jurisdiction and Standard of Review
The district court had jurisdiction under 48 U.S.C. §
1612. We have jurisdiction under 28 U.S.C. § 1291 and the
collateral order doctrine. United States v. Baird, 63 F.3d 1213
(3d Cir. 1995), cert. denied, 116 S. Ct. 909 (1996). Our review
of a double jeopardy claim is plenary. United States v. Various
Computers and Computer Equipment, 82 F.3d 582 (3d Cir.), cert.
denied, 117 S. Ct. 406 (1996); United States v. Baird, 63 F.3d
1213 (3d Cir. 1995).
III. Discussion
A.
In this appeal we must decide whether, under the Double
Jeopardy Clause, Rice's general discharge under honorable
conditions from the Army for misconduct prohibits a subsequent
federal criminal prosecution predicated on the same acts.
The Double Jeopardy Clause of the Fifth Amendment
provides, "No person shall . . . be subject for the same offense
to be twice put in jeopardy of life or limb." U.S. Const., Amdt.
4
5. The Clause serves the function of preventing both "successive
punishments and . . . successive prosecutions." United States
v. Ursery, __ U.S. __, 116 S. Ct. 2135, 2139 (1996) (quoting
United States v. Dixon, 509 U.S. 688, 696 (1993)); Witte v.
United States, __ U.S. __, 115 S. Ct. 2199, 2204 (1995) (same).
"The protection against multiple punishments prohibits the
government from punishing twice, or attempting a second time to
punish criminally for the same offense." United States v.
Ursery, __ U.S. __, 116 S. Ct. 2135, 2139-40 (1996) (quoting
Witte v. United States, __ U.S. __, 115 S. Ct. 2199, 2204
(1995)).
Rice contends the Double Jeopardy Clause's prohibition
against successive punishments bars her prosecution under federal
narcotics laws because she has already been punished for the same
acts by the same sovereign. This argument has been rejected by
two federal courts in cases involving similar administrative
discharges. See United States v. Smith, 912 F.2d 322 (9th Cir.
1990) (discharge for good of the service under less than
honorable conditions is not punishment under the Double Jeopardy
Clause); Bartlett v. United States, 475 F. Supp. 73 (M.D. Fla.
1979) ("undesirable discharge" does not preclude subsequent
criminal prosecution for same offense). As the Court of Appeals
for the Ninth Circuit explained in Smith, a discharge for the
good of the service "is administrative and non-punitive. No
double jeopardy concern is raised when the first proceeding
threatens a civil sanction rather than a loss of liberty."
Smith, 912 F.2d at 324 (citations omitted).
5
The United States Supreme Court has held that in some
circumstances, a civil sanction may constitute punishment within
the meaning of the double jeopardy clause. See United States v.
Halper, 490 U.S. 435 (1989), Department of Revenue of Montana v.
Kurth Ranch, 511 U.S. 767 (1994), and United States v. Ursery, __
U.S. __, 116 S. Ct. 2135 (1996). Rice contends these holdings
support her claim that a general discharge is punishment, barring
subsequent prosecution by the same sovereign. We agree these
cases have recast the analysis of civil sanctions under the
Double Jeopardy Clause. But we do not believe they compel a
different outcome than Smith and Bartlett.
B.
In United States v. Halper, 490 U.S. 435 (1989), the
Supreme Court held a civil sanction that "cannot fairly be said
solely to serve a remedial purpose, but rather can only be
explained as also serving either retributive or deterrent
purposes," is punishment for double jeopardy purposes. Id. at
448. The court ruled that a $130,000 civil penalty for fraud
bore no rational relationship to the remedial goal of
compensating the government for its loss of $16,000. Since
Halper had already been punished for his acts by a criminal fine
and prison sentence, the subsequent imposition of a civil fine
violated the Double Jeopardy Clause's prohibition against
successive punishments.
The approach in Halper was extended in Department of
Revenue of Montana v. Kurth Ranch, 511 U.S. 767 (1994). In Kurth
Ranch, the Court held that a $181,000 state tax on persons
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arrested for drug possession and distribution had an
"unmistakable punitive character" and "was fairly characterized
as punishment." Id. at 783-84. For this reason, imposition of
the tax following criminal conviction and sentencing constituted
an impermissible second punishment.
In United States v. Ursery, __ U.S. __, 116 S. Ct.
2135 (1996), the Supreme Court returned to the problem of civil
sanctions as punishment. In Ursery, the Court applied a two-part
test to determine whether two federal statutory forfeiture
provisions constituted punishment for Double Jeopardy purposes.
The Court first looked to congressional intent to determine
whether Congress intended the provisions to be civil and remedial
or criminal and punitive. Ursery, 116 S. Ct. at 2142, 2147
(1996) (citing United States v. One Assortment of 89 Firearms,
465 U.S. 354, 363 (1984)). The Court concluded Congress intended
the forfeitures to be civil proceedings, because the proceedings
were in rem, the statutes in question referred to "civil
forfeiture," and the procedural rules and burdens of proof were
civil in character. Ursery, 116 S. Ct. at 2147-48.
Second, the Court examined whether the statutory scheme
was so punitive in purpose, effect, or fact as to negate
Congress' intention to establish a civil remedy. Ursery, 116 S.
Ct. at 2147-48 (1996). A defendant must establish by the
"clearest proof" that the government has provided a sanction so
punitive as to transform what was clearly intended as a civil
remedy into a criminal penalty. Ursery, 116 S. Ct. at 2142
(1996) (quoting 89 Firearms, 465 U.S. 354, 366 (1984)). The
7
Court held there was little evidence, let alone clear proof, the
statute was punitive in "form or effect." Ursery, 116 S. Ct. at
2148. Although recognizing one of the statutes, authorizing
forfeiture of property used in the commission of a drug felony,
had "certain punitive effects," the Court noted it served
important nonpunitive goals because it encouraged property owners
to take care in managing their property, ensured that owners
would not permit their property to be used for illegal purposes,
and, in some circumstances, might abate a nuisance. The Court
believed the other statute, authorizing forfeiture of property
involved in illegal money-laundering transactions, served these
same remedial purposes as well as "the additional nonpunitive
goal of ensuring that persons do not profit from their illegal
acts." Id. at 2148-49. For these reasons, the Court concluded
the forfeiture statutes did not impose punishment within the
meaning of the Double Jeopardy Clause.2
2. The Court also considered four additional factors. First,
the Court noted "in rem civil forfeiture has not historically
been regarded as punishment, as we have understood that term
under the Double Jeopardy Clause." Id. at 2149. Second, the
statutes possessed no scienter requirement aside from an
"innocent owner exception." Id. Third, the Court noted though
both forfeiture statues "may fairly be said to serve the purpose
of deterrence, we long have held that this purpose may serve
civil as well as criminal goals." Id. Finally, the Court
observed "though both statutes are tied to criminal activity . .
. this fact is insufficient to render the statutes punitive," for
"[i]t is well settled that 'Congress may impose both a criminal
and a civil sanction in respect to the same act or omission.' By
itself, the fact that a forfeiture statute has some connection to
a criminal violation is far from the 'clearest proof' necessary
to show that a proceeding is criminal." Id. (citation omitted,
quoting Helvering v. Mitchell, 303 U.S. 391, 399 (1938).
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It is clear therefore that in some circumstances, a
civil sanction may constitute punishment for double jeopardy
purposes. We believe Ursery provides the appropriate test here.
To determine whether Rice's administrative discharge was
punishment for double jeopardy purpose, we must examine the (1)
intent and (2) purpose or effect of the relevant administrative
discharge regulations.3
C.
Application of the Ursery test demonstrates Rice's
general discharge was not punishment and the federal government's
prosecution does not violate the Double Jeopardy Clause.
10 U.S.C. § 1169 authorizes the Secretary of Defense
and branch Secretaries to prescribe regulations governing
discharge of regular enlisted personnel from the armed forces
3. Before Ursery, we adopted a three-part test of actual
purpose, objective purpose, and effect to determine whether a
government sanction is punishment. See Artway v. Attorney
General of State of N.J., 81 F.3d 1235, 1263 (3d Cir. 1996). The
Artway court noted: "We have thus attempted to harmonize a body
of doctrine that has caused much disagreement in the federal and
state courts. We realize, however, that our synthesis is by no
means perfect. Only the Supreme Court knows where all the pieces
belong. The Court will, we hope, provide more guidance with its
decision in . . . some other case in the near future." Artway, 81
F.3d at 1263. Artway represented an excellent and strongly
reasoned attempt to interpret a complex line of Double Jeopardy
cases. Shortly thereafter, the Supreme Court decision in Ursery
provided the guidance we sought in Artway by clarifying the
proper test to be applied to determine whether a government
sanction is punishment under the Double Jeopardy Clause. In
Taylor v. Cisneros, 102 F.3d 1334 (3d Cir. 1996), we speculated
as to the extent to which Ursery rendered the Artway test
"overinclusive," but declined to reach a firm conclusion.
Because the Artway test is similar in most respects to the test
adopted by the Court in Ursery, we would reach the same result
under either test.
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before expiration of their term of service.4 Under that
authorization, the Secretary of Defense promulgated 32 C.F.R.
Part 41, "Enlisted Administrative Separations," which establishes
the standards and procedures the Army followed in Rice's general
discharge. Analysis of 32 C.F.R. Part 41 demonstrates that when
the federal government created its scheme of armed service
administrative discharges for regular enlisted personnel, it
intended to establish a remedial and civil, not criminal or
punitive, sanction.
The Secretary of Defense promulgated 32 C.F.R. part 41
to promote:
the readiness of the Military Services by providing an orderly
means to:
(1) Ensure that the Military services are served by
individuals capable of meeting required standards
of duty performance and discipline;
(2) Maintain standards of performance and conduct through
characterization of service in a system that
emphasizes the importance of honorable service;
(3) Achieve authorized force levels and grade distributions; and
(4) Provide for the orderly separation of enlisted
personnel in a variety of circumstances.
32 C.F.R. Part 41 § 41.3(a). The regulations also provide:
Enlisted members who do not demonstrate potential for further
military service should be separated in order to avoid
the high costs in terms of pay, administrative efforts,
degradation of morale, and substandard mission
performance that are associated with retention of
enlisted members who do not conform to required
standards of discipline and performance despite efforts
at counseling, retraining, or rehabilitation.
4. 10 U.S.C. § 1169 provides: "No regular enlisted member of an
armed force may be discharged before his term of service expires,
except -- (1) as prescribed by the Secretary concerned; (2) by
sentence of a general or special court martial; or (3) as
otherwise provided by law."
10
32 C.F.R. Part 41 § 41.3(b)(3). It is clear the remedial goals
underlying the Department of Defense's administrative discharge
scheme are designed to promote military readiness and efficiency
by separating from service those enlisted persons who, if
retained, would lower performance and morale. We see no evidence
of a punitive or retributive intent.
Nor do we believe that Rice's discharge from the Army
had a clear punitive effect or purpose, the second prong of our
analysis. The primary effect and purpose of a general discharge
under honorable conditions is to separate from service a soldier
who fails to meet the Army's standards of conduct. These
discharges are an important remedy to ensure the armed services
shall consist of persons who maintain high levels of conduct and
performance. There is no fine and no incarceration. Had the
Army desired to punish Rice or deter others from similar conduct,
it had other means to do so. As we have seen, the Army could
have prosecuted her for violation of the Uniform Code of Military
Justice. Instead, the Army gave Rice a general discharge under
honorable conditions, applicable only where a "member's service
has been honest and faithful." 32 C.F.R. Part 41, App. A Part 2 §
C2(b)(2). There may be some stigma imposed by this form of
discharge, but it is significantly less than that associated with
a dishonorable discharge or a general discharge under other than
honorable conditions. While a general discharge may deter others
from similar conduct, that alone is insufficient to transform an
otherwise remedial administrative measure into punishment under
the Double Jeopardy Clause. See United States v. Ursery, __ U.S.
11
__, 116 S. Ct. 2135, 2149 (1996) (though forfeiture provision
serves purpose of deterrence, provision is not punishment under
Double Jeopardy Clause; deterrence may serve civil non-punitive
as well as criminal goals). Finally, we note Rice has not
pointed to any prior court decision holding that a general
discharge is punishment within the meaning of the Double Jeopardy
Clause.
D.
For these reasons, we hold Rice's general discharge
under honorable conditions was not punishment and the Double
Jeopardy Clause does not prohibit the government from prosecuting
her for the related drug offenses.
Because we hold Rice's discharge was not punishment, we
do not reach the question whether jeopardy attached during her
discharge proceeding. See United States v. $184,505.01 in U.S.
Currency, 72 F.3d 1160, 1166-67 (3d Cir. 1995) (to prevail on
double jeopardy claim, defendant must establish prior jeopardy as
well as prior punishment), cert. denied, 117 S. Ct. 48 (1996);
United States v. Baird, 63 F.3d 1213 (3d Cir. 1995) (same), cert.
denied, 116 S. Ct. 909 (1996); Artway v. Attorney General, 81
F.3d 1235, 1253 (3d Cir. 1996) (If government sanction does not
impose punishment, double jeopardy inquiry is at an end).
IV.
For the foregoing reasons, we will affirm the judgment
of the district court.
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