US v. Stoller
Case Date: 02/29/1996
Court: United States Court of Appeals
Docket No: 95-2175
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UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT _________________________ No. 95-2175 UNITED STATES OF AMERICA, Appellee, v. ROBERT S. STOLLER, Defendant, Appellant. _________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge] ___________________ _________________________ Before Selya, Circuit Judge, _____________ Aldrich and Coffin, Senior Circuit Judges. _____________________ _________________________ John A. MacFadyen, with whom Richard M. Egbert was on brief, _________________ _________________ for appellant. Anita S. Lichtblau, Trial Attorney, United States Dep't of ___________________ Justice, with whom Donald K. Stern, United States Attorney, and _______________ Mark D. Seltzer, Director, New England Bank Fraud Task Force, ________________ were on brief, for the United States. _________________________ February 29, 1996 _________________________ SELYA, Circuit Judge. This appeal requires us to SELYA, Circuit Judge. ______________ explore a shadowy corner of the Double Jeopardy Clause, dimly lit by a trilogy of recent Supreme Court cases. Concluding, as we do, that an administrative sanction imposed by the Federal Deposit Insurance Corporation (FDIC) does not comprise "punishment" within the purview of the Clause, we uphold the district court's denial of a motion to dismiss criminal charges later lodged against the same individual. I. BACKGROUND I. BACKGROUND Following chronological order, we recount the details of the administrative proceeding and then discuss the criminal case. A. The Administrative Proceeding. A. The Administrative Proceeding. _____________________________ From 1975 to 1990, defendant-appellant Robert S. Stoller toiled as the chief executive officer of the Coolidge Corner Cooperative Bank (the Bank). In 1986, the Bank became federally insured. Thereafter, Stoller caused it to make loans to several real estate trusts with which he was affiliated. The loans soured and the Bank sustained heavy losses. In 1990, the FDIC instituted a debarment proceeding against Stoller. The FDIC charged, and an administrative law judge (ALJ) found, that the Bank underwrote the suspect loans without appropriate disclosure and in violation of Regulation O, 12 C.F.R. 215 (a rule that caps the amount of credit a federally insured institution may extend to insiders and imposes lending limits on other extensions of credit). The ALJ concluded 2 that Stoller's transgressions demonstrated a willful and persistent disregard for the Bank's soundness, and therefore warranted an order of proscription under 12 U.S.C. 1818(e).1 On administrative review, the FDIC's board of directors (the Board) affirmed the ALJ's factual determinations and approved his recommended order. Stoller requested reconsideration and clarification. On September 22, 1992, the Board issued a revised decision upholding the debarment order in slightly altered form: in its final version, the order prevents Stoller (who is an attorney) from serving as an officer or director of, exercising control over, or acting as counsel to, any federally insured financial institution. B. The Criminal Case. B. The Criminal Case. _________________ In January 1995, a federal grand jury indicted Stoller for divers violations of federal banking laws, including nine counts of misapplying bank funds, see 18 U.S.C. 656; thirty-one ___ counts of unlawfully receiving loan-procurement commissions, see ___ id. 215; and eight counts of making false entries, see id. ___ ___ ___ 1005. Stoller promptly moved to dismiss the first nine counts of the indictment on double jeopardy grounds. The district court denied the motion, concluding that the debarment order did not constitute punishment in the relevant constitutional sense. See ___ United States v. Stoller, 906 F. Supp. 39 (D. Mass. 1995). This _____________ _______ appeal followed. ____________________ 1This statute and the criminal statutes underpinning the later indictment are reprinted in the appendix. 3 II. APPELLATE JURISDICTION II. APPELLATE JURISDICTION As a general rule, federal appellate courts have jurisdiction only over final orders and judgments of district courts, and not over interlocutory decisions. See 28 U.S.C. ___ 1291. In Abney v. United States, 431 U.S. 651 (1977), the _____ ______________ Supreme Court carved an exception to this rule for pretrial refusals to dismiss criminal charges on double jeopardy grounds. Emphasizing that the Double Jeopardy Clause is a "guarantee against being twice put to trial for the same offense," id. at ___ 661, the Court held that "pretrial orders rejecting claims of former jeopardy . . . constitute `final decisions' and thus satisfy the jurisdictional prerequisites of 1291," id. at 662. ___ It is possible to read too much into Abney. The Double _____ Jeopardy Clause states that no person "shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This protection is threefold: "it safeguards an individual against (1) a second prosecution for the same offense, following an acquittal; (2) a second prosecution for the same offense, following a conviction; and (3) multiple punishments for the same offense." United States v. Rivera- ______________ _______ Martinez, 931 F.2d 148, 152 (1st Cir.), cert. denied, 502 U.S. ________ _____ ______ 862 (1991). Abney spoke to a situation involving multiple _____ prosecutions. Cases that involve multiple punishments arguably raise different jurisdictional concerns for appellate courts. In United States v. Ramirez-Burgos, 44 F.3d 17 (1st _____________ ______________ Cir. 1995), this court dismissed an interlocutory appeal stemming 4 from the rejection of a multiple punishments claim asserted in connection with parallel counts contained in a single indictment. See id. at 18. We ruled that the defendant's right not to be ___ ___ punished twice could be vindicated adequately through a subsequent, end-of-case appeal, and distinguished those interlocutory double jeopardy appeals (like Abney) that demand _____ final resolution prior to trial because the defendant advances a claim alleging impermissible multiple prosecutions. See id. at ___ ___ 18-19. Stoller's case falls somewhere between Abney and _____ Ramirez-Burgos. Unlike in Abney, his double jeopardy claim rests ______________ _____ on the prospect of multiple punishments rather than the fear of multiple prosecutions. Unlike in Ramirez-Burgos, however, the ______________ alleged multiple punishments arise in the course of two separate and successive proceedings rather than within a single proceeding. To complicate matters further, the fate of Ramirez- ________ Burgos is uncertain in light of the Supreme Court's recent ______ decision in Witte v. United States, 115 S. Ct. 2199 (1995).2 _____ ______________ ____________________ 2In Witte, the defendant moved to dismiss an indictment on _____ the ground that the conduct underlying it had already been taken into account when he was sentenced on a previous charge. The defendant argued that the prosecution of the new charge subjected him to multiple punishments for the same offense in violation of the double jeopardy guarantee. See Witte, 115 S. Ct. at 2204-05. ___ _____ He convinced the district court but the court of appeals reversed. 25 F.3d 250, 252 (5th Cir. 1994). On certiorari, the Supreme Court declared the claim to be "ripe at this stage of the prosecution although petitioner has not yet been convicted of the [second charge] because, as we have said, `courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.'" 115 S. Ct. at 2205 (quoting Brown v. _____ Ohio, 432 U.S. 161, 165 (1977)). ____ 5 Although Witte and Ramirez-Burgos can perhaps be reconciled, the _____ ______________ most obvious basis for harmonizing them the number of proceedings involved would, if accepted, remove this appeal from the reach of Ramirez-Burgos. Moreover, at least one circuit ______________ has observed that, under Witte, all double jeopardy appeals that _____ raise nonfrivolous multiple punishments arguments must now be considered ripe for immediate review. See United States v. ___ ______________ Baird, 63 F.3d 1213, 1215 & n.4 (3d Cir. 1995), cert. denied, ___ _____ _____ ______ S. Ct. ___ (1996). We elect to detour around this Serbonian bog. It is a familiar tenet that when an appeal presents a jurisdictional quandary, yet the merits of the underlying issue, if reached, will in any event be resolved in favor of the party challenging the court's jurisdiction, then the court may forsake the jurisdictional riddle and simply dispose of the appeal on the merits. See Norton v. Mathews, 427 U.S. 524, 530-31 (1976); ___ ______ _______ Secretary of the Navy v. Avrech, 418 U.S. 676, 677-78 (1974) (per _____________________ ______ curiam); United States v. Saccoccia, 58 F.3d 754, 767 n.6 (1st _____________ _________ Cir. 1995); United States v. Connell, 6 F.3d 27, 29 n.3 (1st Cir. _____________ _______ 1993). We follow that course, leaving for another day the questions surrounding the continued vitality of Ramirez-Burgos. ______________ III. THE DOUBLE JEOPARDY CLAIM III. THE DOUBLE JEOPARDY CLAIM We confine our discussion to the branch of the Double Jeopardy Clause that embodies the constitutional protection 6 against multiple punishments.3 Though our analysis proceeds in three segments, we pause at the brink to acknowledge a few well- established principles. First, though former jeopardy is a criminal law concept, it is by now settled that, if other conditions are met, either criminal prosecutions or civil proceedings instituted by the same sovereign may result in punishment sufficient to implicate the Double Jeopardy Clause. See United States v. ___ ______________ Halper, 490 U.S. 435, 443 (1989). Second, not all civil ______ sanctions constitute cognizable punishment. To separate wheat from chaff, an inquiring court must scrutinize a civil sanction objectively rather than subjectively for, from the defendant's standpoint, "even remedial sanctions carry the sting of punishment." Id. at 447 n.7. Third, as long as a civil sanction ___ constitutes punishment in the relevant sense, it does not matter if the "multiple" punishment presumably a criminal sentence precedes the attempt to impose the sanction, or conversely, if the sanction precedes the attempt to convict the defendant. Notwithstanding the difference in sequence, the Double Jeopardy Clause reaches both situations. See United States v. Hudson, 14 ___ _____________ ______ F.3d 536, 540 (10th Cir. 1994); United States v. Reed, 937 F.2d _____________ ____ 575, 577 n.3 (11th Cir. 1991). ____________________ 3On appeal, Stoller makes a feeble effort to reformulate his double jeopardy challenge to encompass the notion of successive prosecutions. Since he did not raise this theory below, we will not waste time on it now. See United States v. Slade, 980 F.2d ___ _____________ _____ 27, 30 (1st Cir. 1992). In all events, the belated contention adds nothing of consequence to Stoller's asseverational array. 7 These principles help courts to solve the routine questions that are posed when civil sanctions are alleged to run afoul of the Double Jeopardy Clause. Nevertheless, when a court confronts the task of determining the status of a particular civil penalty under double jeopardy analysis, extremely sophisticated questions can sometimes arise. The answers to those questions may depend on the trilogy of Supreme Court cases to which we now repair. A. The Trilogy. A. The Trilogy. ___________ The seminal case is Halper. There the government ______ successfully prosecuted criminal charges against a physician who, it asserted, had defrauded the federal Medicare program on sixty- five separate occasions. The judge imposed a prison sentence and a fine. See Halper, 490 U.S. at 437. Thereafter, the government ___ ______ brought a civil suit against Dr. Halper under the False Claims Act, 31 U.S.C. 3729-3730, seeking to recover damages plus a penalty equal to $2,000 per violation. The district judge, after contrasting the extent of the government's claim for these items ($131,170) with the provable amount of the loss occasioned by Dr. Halper's defalcations ($585), awarded the government $16,000. The judge reasoned that a more munificent award would be so disproportionate as to constitute punishment and would therefore raise double jeopardy questions. See Halper, 490 U.S. at 438-39. ___ ______ The Supreme Court ultimately accepted this reasoning,4 finding ____________________ 4The Court did not affirm, but instead vacated the award and remanded for a more precise determination of the government's actual loses. See Halper, 490 U.S. at 452. ___ ______ 8 double jeopardy to be a matter of concern "where a fixed-penalty provision subjects a[n] . . . offender to a sanction overwhelmingly disproportionate to the damages he has caused." Id. at 449. ___ The Halper Court offered some insights into when ______ particular civil penalties might be regarded as punishments in the relevant sense. Making such a determination "requires a particularized assessment of the penalty imposed and the purposes the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment." Id. at 448. Withal, Halper did not brand every ___ ______ monetary penalty exceeding actual financial loss as punitive per se. To the contrary, the Court stated that "the Government is entitled to rough remedial justice, that is, it may demand compensation according to somewhat imprecise formulas, such as reasonable liquidated damages or a fixed sum plus double damages, without being deemed to have imposed a second punishment for the purpose of double jeopardy analysis." Id. at 446. It is only ___ when the recovery is "not rationally related to the goal of making the Government whole" that the prospect of multiple punishment looms. Id. at 451. It is in this context that the ___ Halper dichotomy surfaced: Justice Blackmun wrote that "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, as we have come 9 to understand the term." Id. at 448. ___ In Austin v. United States, 113 S. Ct. 2801 (1993), the ______ _____________ Court mulled a constitutional challenge to the civil forfeiture of property (Austin's home and business) used to facilitate narcotics transactions. After deciding that the Excessive Fines Clause, U.S. Const. amend. VIII, reached punitive sanctions levied in nominally civil proceedings, see id. at 2805-06, ___ ___ Justice Blackmun invoked his own invention the Halper dichotomy ______ as an aid in determining how a particular sanction might be characterized. Responding to concerns articulated by Justices Scalia and Kennedy (each of whom concurred in the judgment but wrote separately), Justice Blackmun suggested that under Halper ______ "the question is whether forfeiture serves in part to punish, and __ ____ one need not exclude the possibility that forfeiture serves other purposes to reach that conclusion." Id. at 2810 n.12 (emphasis ___ in original). While Justice Blackmun acknowledged that "the forfeiture of contraband itself may be characterized as remedial because it removes dangerous or illegal items from society," he declined to extend that reasoning to the sovereign's confiscation of a defendant's home and business (even though drug trafficking may have occurred there). Id. at 2811. Moreover, "the dramatic ___ variations in the value of . . . property forfeitable" under the applicable civil forfeiture statutes undermined any serious claim that such forfeitures merely provided appropriate compensation for the government's losses. Id. at 2812. In other words, ___ forfeitures of random magnitude were punitive in nature mainly 10 because of sheer vagariousness.5 The capstone of the trilogy is Department of Revenue v. _____________________ Kurth Ranch, 114 S. Ct. 1937 (1994). There the Supreme Court ____________ revisited its double jeopardy jurisprudence and found that a Montana tax on the possession of illegal drugs constituted a punishment. See id. at 1948. Justice Stevens, writing for the ___ ___ majority, abjured the Halper dichotomy. He explained this shift ______ of focus on the basis that "Halper's method of determining ______ whether the exaction was remedial or punitive simply does not work in the case of a tax statute." Id. (citation and internal ___ quotation marks omitted).6 In lieu of the inelastic Halper dichotomy the Kurth ______ _____ Ranch Court advocated a more flexible approach and undertook to _____ evaluate the defendant's double jeopardy claim through an examination of the aggregate circumstances surrounding the imposition of the tax. See id. at 1946-48. Marshaling the ___ ___ pertinent facts, the Court remarked the tax's high rate, obvious deterrent purpose, and linkage with the taxpayer's commission of a drug-related crime, see id. at 1946-47, and took particular ___ ___ ____________________ 5Austin is likely not the last word on civil forfeitures in ______ these purlieus. The Court has taken certiorari in two forfeiture cases that feature double jeopardy challenges. See United States ___ _____________ v. Ursery, 59 F.3d 568 (6th Cir. 1995), cert. granted, 116 S. Ct. ______ _____ _______ 762 (1996); United States v. $405,089.23, 56 F.3d 41 (9th Cir. _____________ ___________ 1995), cert. granted, 116 S. Ct. 762 (1996). _____ _______ 6Elaborating on this theme, Chief Justice Rehnquist (with whom the majority agreed on this point) explained that "the purpose of a tax statute is not to recover the costs incurred by the government for bringing someone to book for some violation of law, but is instead to either raise revenue, deter conduct, or both." Id. at 1949 (Rehnquist, C.J., dissenting). ___ 11 note of the fact that the property to be taxed was no longer in the taxpayer's possession, see id. at 1948. Accordingly, the ___ ___ Court judged the tax to be punitive and held that its assessment after the taxpayer had been convicted and sentenced for the underlying narcotics offense would constitute double jeopardy. See id. ___ ___ B. The Analytic Framework. B. The Analytic Framework. ______________________ The threshold question is whether the Halper dichotomy ______ furnishes the beacon by which we must steer in evaluating Stoller's double jeopardy claim. We hold that the dichotomy the Halper Court's litmus test for determining the nature of a ______ civil sanction is limited to cases involving fines, forfeitures, and other monetary penalties designed to make the sovereign whole for harm or loss that is quantifiable in actual or approximate monetary terms. In other cases, the preferred method of analysis is the totality-of-the-circumstances test employed in Kurth Ranch. Thus, the Halper dichotomy is ____________ ______ inapposite in the typical debarment case (as here). 1. In Kurth Ranch, 114 S. Ct. at 1948, the Court 1. ___________ recognized the limitations of the dichotomy conceived in Halper ______ and nourished in Austin. The Halper dichotomy is serviceable in ______ ______ the context of a fine, forfeiture, or other monetary penalty that is itself quantifiable in dollars and is intended to correspond with a quantifiable loss. In such situations, a simple mathematical computation reveals with some degree of precision 12 whether the penalty is in proportion to the misconduct.7 This comparison, in turn, determines the nature of the sanction: the sanction is either restitutionary in an approximate sense (and, hence, remedial) or it is not (and, hence, punitive). This is a practical, easily administered rule of thumb but it operates satisfactorily only because the extent to which a monetary exaction exceeds actual loss is quantifiable. Where that is so as in Halper the test works; but in other kinds of cases as ______ in Kurth Ranch and here the dichotomy is dysfunctional.8 ___________ We think that Halper itself recognized these ______ limitations. The holding of the Halper Court a holding that ______ appeared in the very next sentence following the sentence that framed the dichotomy is "that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." 490 U.S. at 448-49. A significantly ____________________ 7Even in such cases, the dichotomy has a troubling aspect. See Austin, 113 S. Ct. at 2813 n.* (Scalia, J., concurring) ___ ______ (questioning the language used by Justice Blackmun because virtually by definition a "statutory forfeiture must always be at ______ least `partly punitive'") (emphasis in original). 8While Kurth Ranch dealt with a quantifiable monetary ____________ penalty a tax it did not involve the satisfaction of a quantifiable loss. Tax statutes are not usually predicated on a calculation of damages or costs sustained by the sovereign through the taxpayer's acts, and the tax statute at issue in Kurth Ranch (which imposed a tax of the greater of $100 per ounce ___________ of marijuana or ten percent of its market value, see 114 S. Ct. ___ at 1941) is no exception. 13 disproportionate monetary sanction cannot fairly be characterized as remedial and, thus, must be regarded as being in service to punitive ends (deterrence or retribution). Non-monetary sanctions elude such facile classification. Indeed, many non- monetary sanctions are hybrids; while not solely in service to remedial goals, they cannot fairly be characterized as serving only punitive purposes. We believe it is for this reason that the Halper Court, knowing many civil sanctions would not fit the ______ analytic mold it had cast for use in connection with certain types of monetary penalties, stressed the circumscribed nature of its holding and styled its dichotomous approach as "a rule for the rare case." Id. at 449. ___ We are unwilling to accept Stoller's contention that Austin signals a widening of Halper's purposefully narrow ______ ______ holding. In Austin, the applicable statute purportedly entitled ______ the government to recover property used to facilitate drug transactions regardless of the property's value in relation to the amount of drugs purveyed or the losses to the government occasioned thereby. See Austin, 113 S. Ct. at 2812. The ___ ______ defendant's challenge to the forfeiture pivoted on the Excessive Fines Clause, not the Double Jeopardy Clause. See id. at 2812 ___ ___ n.14. Although the Court often interchanges precedents under these clauses, Austin is a case in which the source of the ______ challenge possessed decretory significance. In assessing multiple punishment claims under double jeopardy analysis, the answer to the dispositive question ultimately depends on whether 14 a sanction is "punitive." By contrast, in pondering a claim under the Excessive Fines Clause, the answer to the dispositive question ultimately depends on whether a sanction is "excessive." See id. To arrive at a judgment on excessiveness, a reviewing ___ ___ court must necessarily determine if the fine is in proportion to the harm inflicted and/or the loss sustained and it must apply that criterion regardless of whether the harm or loss is quantifiable. See Alexander v. United States, 113 S. Ct. 2766, ___ _________ _____________ 2776 (1993). It follows that, in double jeopardy cases involving non-monetary sanctions, we can read very little into the Austin ______ Court's commentary. 2. Moving beyond the trilogy, the weight of appellate 2. authority buttresses our binary conclusion that in double jeopardy cases (a) the Halper method of analysis is the exception ______ while the Kurth Ranch method is the general rule, and (b) ____________ strictly speaking, the Halper dichotomy does not apply to non- ______ monetary sanctions. See, e.g., United States v. Hernandez- ___ ____ ______________ __________ Fundora, 58 F.3d 802, 806 (2d Cir.) (refusing to extend the _______ Halper dichotomy to a prisoner's claim that his conviction and ______ sentence on charges of assault, after correctional authorities had meted out disciplinary segregation for the same offense, violated the multiple punishments branch of the Double Jeopardy Clause), cert. denied, 115 S. Ct. 2288 (1995). While the Supreme _____ ______ Court has not yet decided a case raising a double jeopardy challenge to a criminal prosecution that stalks behind the issuance of a debarment order, several courts of appeals have 15 considered and rejected such challenges in the reflection of Halper. ______ In Reed, 937 F.2d at 577, the Eleventh Circuit declined ____ to apply the Halper dichotomy to an employment proscription. ______ Reed involved a double jeopardy challenge to an indictment for ____ misappropriation of postal funds that followed a thirty-day disciplinary suspension imposed by an arbitrator for the same conduct. The court labelled the Halper dichotomy "inapposite" in ______ cases involving non-monetary sanctions. Id. at 578. But the ___ court's rejection of the dichotomy was by no means a rejection of Halper itself. The court found guidance as do we in the ______ general principles discussed by the Halper Court, and, ______ adumbrating the methodology that the Supreme Court later adopted in Kurth Ranch, the Reed panel examined the overall circumstances ___________ ____ in order to determine whether the proscriptive sanction should be characterized as punitive or remedial. See id. ___ ___ The same court also declined to apply Halper in a case ______ that bears a distinct family resemblance to the case at bar. In Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992), the court _________ ________ found no double jeopardy barrier to an administrative order excluding a physician from participating in the federal Medicare program for at least five years, notwithstanding that the order followed the doctor's conviction and sentencing on criminal charges of Medicare fraud. Dismissing the physician's lament that the debarment order, from his perspective, was unarguably punitive, the court determined the sanction to be remedial. See ___ 16 id. at 1542 (stating, inter alia, that "the purpose of . . . ___ _____ ____ exclusion is to protect the public, a legitimate nonpunitive goal"). Because the agency "did not assess monetary damages," the court ruled that "Halper's analysis . . . does not apply." ______ Id. Instead, it focused on the totality of the circumstances. ___ See id. ___ ___ To be sure, these decisions predate Austin but ______ because debarment does not come within the Excessive Fines Clause as we understand it, see Browning-Ferris Indus. v. Kelco ___ _______________________ _____ Disposal, Inc., 492 U.S. 257, 264-65 (1989) (holding that the _______________ Excessive Fines Clause is implicated only when a party must make "a payment to a sovereign as punishment for some offense"),9 nothing in Austin diminishes their vitality. More to the point, ______ Kurth Ranch, a post-Austin case, makes it pellucid that, when ____________ ______ there is no occasion for an inquiry into financial proportionality, the classic Halper framework does not fit. See ______ ___ Kurth Ranch, 114 S. Ct. at 1948. ___________ Two other courts of appeals have arrived at the same destination by a more roundabout route. In Hudson, 14 F.3d 536, ______ the Tenth Circuit faced a scenario on all fours with the scenario presented here. Acting under the identical statute that the FDIC employed vis-a-vis Stoller, 12 U.S.C. 1818(e), the Comptroller of the Currency initiated administrative proceedings against several individuals. He succeeded in securing debarment orders ____________________ 9Stoller has not argued that the Excessive Fines Clause applies in this case; and, insofar as we can tell, no such argument was advanced in either Reed or Manocchio. ____ _________ 17 and agreements for partial restitution. See Hudson, 14 F.3d at ___ ______ 538. The government later pressed criminal charges based on the same course of conduct. See id. In analyzing the ensuing double ___ ___ jeopardy challenge, the Tenth Circuit, echoing Halper, stated ______ "that a sanction should be considered punishment if it is not solely remedial," but placed a gloss on this statement, explaining "that a determination that a sanction is at least in part punishment requires that it must be explained as also ____ serving as a deterrent or retribution, not merely that it may be ___ so explained." Id. at 540 (emphasis in original). The court ___ then pointed out that while 1818(e) may serve to punish lawbreakers, "it does not follow that all sanctions are necessarily presumed to be punitive when the [statute's] express language . . . also allows for remedial sanctions." Id. at 541. ___ Applying these tenets, the court concluded that the debarment orders did not comprise punishments and, therefore, rebuffed the claim of former jeopardy. See id. at 542. ___ ___ In Bae v. Shalala, 44 F.3d 489 (7th Cir. 1995), the ___ _______ Seventh Circuit used a similar mode of analysis in turning aside an ex post facto challenge to a debarment order. The court assumed the primacy of Halper and started from the premise that, ______ unless a civil sanction can "fairly be said solely to serve a remedial purpose," it constitutes punishment. Id. at 493 ___ (quoting Halper, 490 U.S. at 448). But the court added: ______ A civil sanction that can fairly be said solely to serve remedial goals will not fail under ex post facto scrutiny simply because _____________ it is consistent with punitive goals as well. 18 A civil sanction will be deemed to be punishment in the constitutional sense only if the sanction "may not fairly be characterized as remedial, but only as a ____ deterrent or retribution." Id. (quoting Halper, 490 U.S. at 449) (emphasis supplied in Bae). ___ ______ ___ After considering the history and nature of the statute authorizing the Food and Drug Administration to ban persons from participating in the pharmaceutical industry, the court concluded that the order excluding Bae was consistent with a remedial purpose and, therefore, not punitive. See id. at 494-96. ___ ___ The difference in approach between the Eleventh Circuit, on one hand, and the Seventh and Tenth Circuits, on the other hand, may be more one of emphasis than of substance.10 Certainly, the results reached in these three circuits are entirely consistent and the courts' approaches put them on nearly identical courses. The Eleventh Circuit, while eschewing the Halper dichotomy in debarment situations, heeds Halper's ______ ______ animating principle. See, e.g., Reed, 937 F.2d at 578 ___ ____ ____ (describing the employment suspension as constituting "the rough remedial justice permissible as a prophylactic governmental action") (internal quotation marks and citations omitted). The other two circuits embrace this same principle whilst departing from a strict rendition of the Halper dichotomy. See, e.g., Bae, ______ ___ ____ ___ 44 F.3d at 493. Moreover, the Seventh Circuit acknowledges that ____________________ 10Indeed, both the Seventh and Tenth Circuits have rejected double jeopardy challenges to debarment orders in the post-Halper ______ era without discussing the dichotomy. See, e.g., United States ___ ____ _____________ v. Furlett, 974 F.2d 839, 844-45 (7th Cir. 1992); United States _______ _____________ v. Bizzell, 921 F.2d 263, 267 (10th Cir. 1990). _______ 19 hybrid sanctions can pass constitutional muster: a modicum of punitive effect will not poison a sanction that is essentially remedial. See id. (conceding that "[t]he punitive effects of the ___ ___ [debarment] are merely incidental to its overriding purpose to safeguard the integrity of the generic drug industry while protecting public health"). This last statement is reminiscent not only of Reed and Manocchio but also of the position advocated ____ _________ by the Second Circuit (albeit on different facts). See ___ Hernandez-Fundora, 58 F.3d at 806 ("[T]he mere fact that a _________________ sanction imposed by prison officials has a punitive component does not mean that the sanction constitutes `punishment' for double jeopardy purposes."). Despite these similarities in approach, we think it is prudent to adopt one of the competing methodologies as a guide to courts and litigants in this circuit. Writing with the added illumination of Kurth Ranch, we conclude that, to the extent the ___________ circuits' approaches are inconsistent, the directness of the Eleventh Circuit's analysis in Reed is preferable because it best ____ effectuates the Supreme Court's admonition that the Halper ______ dichotomy should not be applied too far afield from its original context (monetary sanctions designed to make the government whole for traceable losses). See Kurth Ranch, 114 S. Ct. at 1948. In ___ ___________ addition, the more inclusive totality-of-the-circumstances test provides a sounder barometer for measuring whether a debarment order or an analogous non-monetary sanction constitutes punishment. We so hold. 20 C. The Merits of the Claim. C. The Merits of the Claim. _______________________ We turn next to the question whether the instant debarment order constitutes punishment within the purview of the Double Jeopardy Clause. This task does not require us to make a blanket determination of whether all debarment orders are ___ remedial as opposed to punitive. Rather, we shine the light of our gleaned understanding on the particular sanction imposed under the particular circumstances on the particular defendant in order to ascertain its character. See Halper, 490 U.S. at 448 ___ ______ (directing "a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve"). For this purpose, we assume but do not decide that the debarment order and the nine "misapplication" counts lodged in the indictment arise out of the same events and rest upon the same elements.11 We conduct our inquiry by considering the totality of the circumstances, including the source of the authority under which the debarment is imposable, the goals underpinning the ____________________ 11Under United States v. Dixon, 113 S. Ct. 2849 (1993), a _____________ _____ double jeopardy claim does not take wing simply because the same conduct underlies two sets of charges. Rather, the defendant must demonstrate that the charges contain identical elements. See id. at 2856, 2860. Stoller claims that the requisite ___ ___ identity exists here between the FDIC's administrative charges and the first nine counts of the indictment (alleging violations of 18 U.S.C. 656). The government disagrees. It suggests that the elements are not congruent because 656 requires proof of a misapplication of bank funds and willfulness or intent to injure ___ the bank, whereas 1818(e) contains an element of loss causation in lieu of the willfulness requirement. Since the debarment order does not constitute punishment, see text infra, we emulate ___ _____ the court below and leave this issue unaddressed. See Stoller, ___ _______ 906 F. Supp. at 40 n.2. 21 authorizing statute, the order itself, the purposes it serves, and the circumstances attendant to its promulgation. See Kurth ___ _____ Ranch, 114 S. Ct. at 1946-47. In the course of this tamisage, we _____ give weight to a variety of factors such as the severity of the civil sanction; its relationship to legitimate, non-punitive aims; the extent to which the legislature acted to deter potential wrongdoers, or conversely, to shield the public; and the nexus (if any) between the civil sanction and the crime that it allegedly punishes. See id. Because our interest is in ___ ___ deterrating the overall nature of the sanction, no one factor, standing alone, is likely to be determinative. 1. The authorizing statute, 12 U.S.C. 1818(e)(1), is 1. reprinted in the appendix. The statute itself offers relatively little guidance; it simply permits regulators to seek debarment orders as long as three conditions are fulfilled. First, the predicate conduct must consist of (a) violating a law, regulation, or agency order, (b) engaging in (or condoning) an unsafe or unsound banking practice, or (c) committing a breach of fiduciary duty. See id. 1818(e)(1)(A). Second, the conduct ___ ___ must have (a) caused real or probable loss, (b) actually or potentially prejudiced depositors' interests, or (c) resulted in gain to the perpetrator. See id. 1818(e)(1)(B). Third, the ___ ___ conduct must have (a) involved personal dishonesty, or (b) "demonstrate[d] willful or continuing disregard . . . for the safety or soundness of" the financial institution. Id. ___ 1818(e)(1)(C). Whenever these three conditions coalesce, the 22 agency (here, the FDIC) may issue a debarment order. See id. ___ ___ 1818(e)(1). Such an order will apply industry-wide unless otherwise specified. See id. 1818(e)(7)(A). ___ ___ These conditions, on their face, are arguably consistent with punishment and remediation alike. For example, although the statute's culpability requirement is reminiscent of the criminal code, such a requirement, in and of itself, does not mandate a finding of punitive intent. See Hudson, 14 F.3d at ___ ______ 542. By the same token, the statute's evident concern for both depositors' interests and financial institutions' well-being strongly suggests a remedial goal, but does not, in and of itself, mandate a finding of remedial intent. What tends to tip the balance is that, under 1818(e)(1), the authority to debar is not tied to a finding that the targeted individual has committed a crime. Just as the presence of an explicit link between a civil penalty and the commission of a crime makes it more likely that the penalty will be deemed punitive for double jeopardy purposes, see Kurth Ranch, 114 S. Ct. at 1947, so, too, ___ ___________ the fact that a civil penalty can be imposed whether or not the targeted individual has committed a crime makes it more likely that the penalty will be deemed remedial, see, e.g., Thomas v. ___ ____ ______ Commissioner, 62 F.3d 97, 101 (4th Cir. 1995). ____________ In reaching the conclusion that 1818(e)(1), on its face, displays colors more consistent with the remedial end of the spectrum, we reject Stoller's argument that Congress's failure to enact stringent standards circumscribing agency 23 discretion in respect to debarment renders debarment orders punitive in nature. Simple logic refutes this proposition, and the case law uniformly contradicts it.12 See, e.g., Bae, 44 ___ ____ ___ F.3d at 496 (characterizing a debarment order as remedial notwithstanding the authorizing statute's lack of limiting standards); Hudson, 14 F.3d at 542 (similar). ______ The legislative history of 1818(e)(1) is helpful. Fairly read, this history reflects congressional aims far more compatible with remediation than with punishment. Congress first enacted the proscription provision in 1966. The report that accompanied the bill limn |