                                                                                                                           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Precedential or Non-Precedential: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).



                                  3
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



                                6
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).




                                8
            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.




                                 9
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.




                                 12
13
