                                                                          PUBLISH

                   IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                         ________________________________
                                                                      FILED
                                    No. 96-6753          U.S. COURT OF APPEALS
                         ________________________________ ELEVENTH CIRCUIT
                                                                      10/29/98
                            D.C. Docket No. CR-96-PT-23-E          THOMAS K. KAHN
                                                                       CLERK

UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,


      versus


EULES MAYES, a.k.a. Tiger, etc.;
WILLIE HARRIS, a.k.a. Will Low,
et al.,

                                             Defendants-Appellants.


_________________________________________________________________

                    Appeals from the United States District Court
                        for the Northern District of Alabama
_________________________________________________________________
                                 (October 29, 1998)


Before HATCHETT, Chief Judge, DUBINA and CARNES, Circuit Judges.
HATCHETT, Chief Judge:

       On October 19, 1995, a prison riot occurred at the Federal Correctional Institution at

Talladega, Alabama (FCI Talladega). The appellants are all former FCI Talladega inmates who

were prosecuted for their involvement in the riot, and who now challenge their convictions and

sentences on several grounds.1 We find only two issues worthy of discussion: (1) the double

jeopardy implications of prison disciplinary sanctions; and (2) whether the appellants were

denied a fair trial as a result of being required to appear in court wearing leg irons. We affirm.

                                        I. BACKGROUND

       The October 1995 riot at FCI Talladega began in the early evening hours and involved

200 to 300 inmates. The riot lasted for more than two hours, and the inmates broke windows, set

fires and assaulted corrections officers. Prison authorities ultimately regained control of the

facility after using tear gas and firing warning shots into the air. Overall, the rioters caused an

estimated $3,000,000 in property damage.

       Following the riot, FCI Talladega authorities conducted a large-scale investigation. Over

the course of about three weeks, corrections officers interviewed nearly 150 inmates and staff

members. As a result of the information obtained during the investigation, corrections officers

identified several inmates involved in the disturbance. The Bureau of Prisons subsequently

initiated disciplinary proceedings against many of these individuals, including some of the

appellants, charging them with various violations of institutional rules and regulations. Most of

the appellants generally allege that, after a hearing, they were each found to have committed


       1
       The appellants in this action are Roderick Baker, Wilson Bryant, Jr., Marcus Byrd,
Leon Calhoun, Torino Fultz, Brian Garrett, Willie Harris, Eules Mayes, Carlos Mimmis, Vernon
Moore, Marcus Nelson and Rahman Nururdin.

                                                  2
particular infractions and subjected to some combination of the following sanctions: (1)

disciplinary transfers to maximum security prisons; (2) disciplinary segregation for 60 days; (3)

disallowance of between 41 and 94 days of accrued good conduct time; (4) temporary losses of

telephone, commissary, and/or recreational privileges; and (5) losses of visitation privileges for

up to one year.

       On February 29, 1996, a federal grand jury in the Northern District of Alabama returned

a superseding indictment charging the appellants, as well as four codefendants who are not

parties to this appeal, with various offenses in relation to their involvement in the riot.2 The

appellants pleaded not guilty and discovery proceeded.

       All of the appellants moved the district court to dismiss the indictment on double

jeopardy grounds, arguing that the prior prison disciplinary sanctions precluded the subsequent




       2
           Count One of the indictment charged all of the appellants with willfully
instigating, conspiring and assisting to cause a riot, in violation of 18 U.S.C. § 1792.
Count Two of the indictment charged Bryant, Byrd, Calhoun, Fultz, Harris, Mayes,
Nelson, and Nururdin with possessing a prohibited object, in violation of 18 U.S.C.
§ 1791(a)(2). Count Five of the indictment charged Mayes with assaulting officer Ralph
Craddieth with the intent to commit mutiny, in violation of 18 U.S.C. §§ 1792 and
113(a)(2). Count Six of the indictment charged Calhoun, Garrett and Mayes with
assaulting officer Terry Bullock with the intent to commit murder, in violation of 18
U.S.C. § 113(a)(1). Count Seven of the indictment charged Baker, Bryant, Byrd,
Calhoun, Fultz, Harris, Mayes, Mimmis, Moore, Nelson and Nururdin with assaulting
officer Steven Croft with the intent to commit murder, in violation of 18 U.S.C.
§ 113(a)(1). Count Eight of the indictment charged Byrd and Mayes with kidnaping
officer Steven Croft, in violation of 18 U.S.C. § 1201(a)(5). Counts Nine, Ten, Twelve,
Thirteen and Fourteen of the indictment respectively charged Mayes, Byrd, Fultz, Nelson
and Calhoun with causing damage in excess of $100 to government property, in violation
of 18 U.S.C. § 1361.

                                                  3
criminal prosecutions for the same conduct.3 In a report and recommendation dated April 23,

1996, a magistrate judge concluded that the motions to dismiss should be denied. On May 1,

1996, the district court entered an order overruling the appellants’ objections to the report and

recommendation and denying the motions to dismiss.

       The district court held two hearings in order to determine the appropriate security

measures to be taken at the appellants’ trial. Over defense counsel’s objections, the court

determined that the appellants should be physically restrained for the duration of the trial. In

reaching this conclusion, the court accepted the recommendation of the United States Marshals

Service, whose representatives testified at the hearings regarding the need for extra security

precautions. In the Marshals Service’s opinion, extra precautions were necessary because of the

number of people being tried together and the nature of the charges against them. Accordingly,

the Marshals Service proposed a plan for courtroom security during the trial that involved

increasing the number of deputy marshals present during the proceedings, controlling the

placement of the tables and seating of the parties, and physically restraining the appellants to

restrict their movement should a disturbance arise.

       With regard to the physical restraints, the Marshals Service recommended that, at

minimum, the appellants wear leg irons around their ankles–a form of “shackling.”

Representatives of the Marshals Service testified that, in their opinions, this would be the least

restrictive method of effective restraint.




       3
         Bryant, Fultz, Harris, Mayes, Moore, Nelson and Nururdin each filed motions to
dismiss the superseding indictment. Garrett, Calhoun, Byrd, Mimmis and Baker adopted the
motion to dismiss.

                                                 4
       The court also considered testimony regarding the appellants’ collective histories of

disciplinary problems and violent behavior. According to one of the deputy marshals, some of

the appellants had previously been convicted of violent crimes. Lieutenant William Elston, a

correctional supervisor at FCI Talladega, also testified that the appellants’ prison files included

incident reports for infractions such as assaulting staff, insolence and refusing orders. According

to Elston, one of the appellants had even threatened to kill a witness in a prior case. With respect

to the appellants’ conduct after the riot, Elston testified that he interviewed some of them about

the incident, and that a few became so “agitated” and “aggressive” that authorities “had to

remove them from [Elston’s] office.” Elston also stated that one of the appellants kicked a chair

and shouted an obscenity just before an arraignment was to begin in Atlanta. Moreover, Elston

testified that a lieutenant who escorted some of the appellants on a bus ride to a maximum

security prison in Colorado had to stop the bus and threaten to use pepper spray because some of

the appellants became “loud and boisterous” upon realizing that “it would be a long time before

staff could respond . . . if [there were] a problem” while en route. Finally, Elston stated that a

lieutenant at the prison in Colorado reported having other minor disciplinary problems with

some of the appellants after they were transferred from FCI Talladega.

       After hearing all of the evidence, the district court carefully assessed the circumstances

and decided to accept the Marshals Service’s recommendation to shackle the appellants. To

minimize the potential for prejudice, however, the court took several measures to ensure that the

leg irons were concealed from the jurors’ view. None of the appellants wore the leg irons while

testifying, and the jurors never saw the appellants enter or exit the courtroom. All of the

appellants were seated on the insides of two tables that were covered with long tablecloths. Two


                                                  5
railings were also strategically positioned in the courtroom to obscure the jurors’ view of the

appellants’ legs. Moreover, the chains of the leg irons were covered with a styrofoam-like soft

rubber padding and duct tape in order to muffle the sounds of clanging metal.

       The trial commenced on May 6, 1996, and on May 30, 1996, the jury returned its

verdicts.4 The district court sentenced the appellants on July 30, 1996, and this appeal followed.5

                        II. ISSUES AND STANDARDS OF REVIEW

       The first issue we address is whether the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution is violated when a prisoner is criminally

prosecuted for the same behavior that formed the basis for prison disciplinary sanctions. We

review de novo the district court’s denial of the appellants’ motions to dismiss the superseding




       4
          On Count One: all of the appellants were found guilty. On Count Two: Bryant, Byrd,
Calhoun, Fultz, Harris, Mayes and Nelson were found guilty, while Nururdin was found not
guilty. On Count Five: Mayes was found not guilty. On Count Six: Mayes was found guilty of
the lesser-included offense of assault with a dangerous weapon with intent to do bodily harm,
while Calhoun and Garrett were both found not guilty. On Count Seven: Nelson was found
guilty of the lesser-included offense of assault with a dangerous weapon with intent to do bodily
harm. Baker, Bryant, Calhoun, Fultz, Harris, Moore and Mayes were found guilty of the lesser-
included offense of assault by striking, beating or wounding. Byrd, Mimmis and Nururdin were
found not guilty. On Count Eight: the court granted the government’s motion to dismiss. On
Count Nine: Mayes was found not guilty. On Count Ten: Byrd was found guilty. On Count
Twelve: Fultz was found guilty. On Count Thirteen: Nelson was found guilty. On Count
Fourteen: Calhoun was found not guilty.
       5
          The district court imposed the following sentences of imprisonment, all to run
consecutive to the sentences that the appellants’ had been previously serving: Baker, Garrett and
Mimmis each received 70 months; Fultz received 77 months; Bryant, Calhoun, Harris, Mayes
and Moore each received 84 months; Byrd and Nururdin both received 110 months; and Nelson
received 120 months. In addition, the district court ordered Bryant, Byrd, Calhoun, Fultz,
Garrett, Harris, Mayes, Nelson and Nururdin each to pay $50,000 in restitution to the United
States Bureau of Prisons.

                                                 6
indictment on double jeopardy grounds. United States v. Benefield, 874 F.2d 1503, 1505 (11th

Cir. 1989).

       The second issue that merits discussion is whether the appellants were denied a fair trial

as a result of being required to appear in court wearing leg irons. Our standard of review is

abuse of discretion. United States v. Theriault, 531 F.2d 281, 284 (5th Cir.) (“The decision to

shackle lies within the sound discretion of the trial court and will not be overturned by reviewing

courts unless that discretion was abused.”), cert. denied, 429 U.S. 898 (1976).6

                                       III. DISCUSSION

A.     Double Jeopardy

       The Fifth Amendment states in part 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. The Double

Jeopardy Clause protects individuals against three distinct violations: (1) “a second prosecution

for the same offense after acquittal”; (2) “a second prosecution for the same offense after

conviction”; and (3) “multiple punishments for the same offense.” North Carolina v. Pearce, 395

U.S. 711, 717 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). The



       6
          Appellants raise several additional issues on appeal, including: (1) whether the district
court erred in denying their motions to sever; (2) whether the evidence was sufficient to support
their convictions; (3) whether they were properly sentenced; and (4) whether the district court
erred in eliciting certain information from a witness. As to all issues except double jeopardy and
shackling, we find the appellants’ contentions devoid of merit and affirm the district court’s
judgment without discussion. See 11th Cir. R. 36-1.

        Additionally, Mayes and Fultz contend that they were denied effective assistance of trial
counsel. We decline to address this issue. See United States v. Camacho, 40 F.3d 349, 355
(11th Cir. 1994) (“Generally, we do not consider claims of ineffective assistance of counsel on
direct appeal, because there usually has been insufficient opportunity to develop the record
regarding the merits of these claims.”), cert. denied, 514 U.S. 1090 (1995).

                                                 7
appellants rely upon the third of these types of abuses to argue that the district court erred in

denying their motions to dismiss the superseding indictment.7 Specifically, they contend that the

Bureau of Prisons “punished” them with various disciplinary sanctions and that the superseding

indictment unconstitutionally subjects them to criminal liability for the same conduct that formed

the basis of those disciplinary sanctions.

       The appellants’ argument is based primarily upon United States v. Halper, 490 U.S. 435,

446 (1989), where the Supreme Court addressed the issue of “whether and under what

circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy

Clause.” Irwin Halper was sentenced to 2 years of imprisonment and fined $5,000 after being

convicted of submitting 65 false claims for government reimbursement. 490 U.S. at 437. In a

subsequent civil suit against Halper brought pursuant to the False Claims Act, 31 U.S.C.

§§ 3729-3731 (1982 ed., Supp. II), the district court granted the government’s motion for

summary judgment on the issue of liability. 490 U.S. at 438. Although the government actually

sustained a total loss of only $585 plus the cost of investigating and prosecuting Halper’s false

claims, the remedial provision of the False Claims Act would have made Halper liable to the

government for more than $130,000. 490 U.S. at 438-39. In light of Halper’s previous criminal

punishment, the district court held that the statutorily authorized penalty would constitute a

second punishment for double jeopardy purposes. 490 U.S. at 438-39. The court therefore

limited the government’s recovery to double damages of $1,170 and the costs of the civil action.

490 U.S. at 440.



       7
        All of the appellants raise the double jeopardy issue on appeal except Baker, Moore and
Nururdin.

                                                  8
       The government took a direct appeal to the Supreme Court, which agreed with the district

court’s double jeopardy analysis.8 The Court concluded that “a civil as well as a criminal

sanction constitutes punishment when the sanction as applied in the individual case serves the

goals of punishment.” 490 U.S. at 448. Thus, the 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[.]” 490 U.S. at 448. Under the Court’s ruling,

“the Government may not criminally prosecute a defendant, impose a criminal penalty upon him,

and then bring a separate civil action based on the same conduct and receive a judgment that is

not rationally related to the goal of making the Government whole.” 490 U.S. at 451.

Accordingly, the Court found the remedial provision of the False Claims Act unconstitutional as

applied to Halper, given the “overwhelmingly disproportionate” civil penalty it authorized

compared to the government’s actual sustained losses. 490 U.S. at 449, 452.

       The appellants use Halper’s rationale to support their position that the imposition of

prison disciplinary sanctions—particularly the denial of visitation privileges after being

transferred from FCI Talladega—constitute punishment for double jeopardy purposes. They

contend that being disciplined at a prison other than the one where the riot occurred could not be

rationally related to the government’s remedial interest in maintaining institutional order. Thus,

they argue, the government plainly sought to serve the goals of punishment. Although the

appellants primarily take issue with the denial of visitation privileges, they also assert that the

court should consider the overall severity of the various combinations of sanctions imposed in


       8
         The Court, however, vacated the judgment and remanded for further proceedings “to
permit the Government to demonstrate that the District Court’s assessment of its injuries was
erroneous.” Halper, 490 U.S. at 452.

                                                  9
each individual appellant’s case. Relying on Halper, they claim that the disciplinary action taken

against them, considered in its totality, was unjustifiably extreme when compared with what

should have been the government’s only valid remedial goals: maintaining order and

encouraging compliance with prison rules at FCI Talladega.

       Prior to Halper, the general rule in this and other circuits appeared to be well settled:

prison disciplinary sanctions do not bar subsequent criminal prosecutions on double jeopardy

grounds. See United States v. Cordova, 414 F.2d 277, 277 (5th Cir. 1969); Garrity v. Fiedler, 41

F.3d 1150, 1152 (7th Cir. 1994) (collecting cases), cert. denied, 514 U.S. 1044 (1995). After

Halper, however, the issue arose whether prison disciplinary sanctions might ever be considered

sufficiently excessive to constitute criminal punishment for double jeopardy purposes. Every

circuit court to address this issue distinguished Halper, declined to recognize an exception to the

general rule and rejected prisoners’ double jeopardy challenges.9

       After the parties filed their briefs in this case, but before the appellate oral argument, the

Supreme Court decided Hudson v. United States, 118 S. Ct. 488 (1997). In Hudson, the Office

of the Comptroller of the Currency (OCC) administratively imposed monetary penalties and

occupational debarment on the petitioners, who were officials of two banks in western

Oklahoma, after concluding that they had used their positions to arrange a series of loans in

violation of federal banking statutes and regulations. 118 S. Ct. at 491-92. The petitioners were

criminally indicted on charges arising out of the same lending transactions. 118 S. Ct. at 492.


       9
         See United States v. Galan, 82 F.3d 639 (5th Cir.), cert. denied, 117 S. Ct. 179 (1996);
United States v. Hernandez-Fundora, 58 F.3d 802 (2d Cir.), cert. denied, 515 U.S. 1127 (1995);
United States v. Brown, 59 F.3d 102 (9th Cir. 1995); Garrity v. Fiedler, 41 F.3d 1150 (7th Cir.
1994), cert. denied, 514 U.S. 1044 (1995); United States v. Newby, 11 F.3d 1143 (3d Cir. 1993),
cert. denied, 511 U.S. 1087, and cert. denied, 513 U.S. 834 (1994).

                                                 10
The district court dismissed the indictments on double jeopardy grounds, and the court of

appeals reversed. The Supreme Court granted certiorari “because of concerns about the wide

variety of novel double jeopardy claims spawned in the wake of Halper.” 118 S. Ct. at 493.

Largely “disavow[ing] the [Halper] method of analysis[,]” the Court held that the Double

Jeopardy Clause did not bar the petitioners’ criminal prosecution because the prior OCC

administrative proceedings were civil, not criminal. 118 S. Ct. at 491.

       Chief Justice Rehnquist, writing for the Court in Hudson, noted that “[t]he Clause

protects only against the imposition of multiple criminal punishments for the same offense”

occurring in successive proceedings. 118 S. Ct. at 493 (emphasis added). In determining

whether a particular punishment is civil or criminal in nature, courts must first attempt to

ascertain the express or implied legislative intent. 118 S. Ct. at 493 (citing United States v.

Ward, 448 U.S. 242, 248 (1980)). If the legislature intends the penalty to be civil, courts must

then “‘inquire[] further whether the statutory scheme was so punitive either in purpose or effect,’

. . . as to ‘transfor[m] what was clearly intended as a civil remedy into a criminal penalty[.]’”

118 S. Ct. at 493 (citing Ward, 448 U.S. at 348-49 and Rex Trailer Co. v. United States, 350

U.S. 148, 154 (1956)). The Hudson Court found that, “[i]n making this latter determination,” the

factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) “provide useful

guideposts[.]” 118 S. Ct. at 493. These factors include (1) “[w]hether the sanction involves an

affirmative disability or restraint”; (2) “whether it has historically been regarded as a

punishment”; (3) “whether it comes into play only on a finding of scienter”; (4) “whether its

operation will promote the traditional aims of punishment–retribution and deterrence”; (5)

whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose


                                                 11
to which it may rationally be connected is assignable for it”; and (7) “whether it appears

excessive in relation to the alternative purpose assigned.” Kennedy, 372 U.S. at 168-69.

       The Chief Justice observed that the Halper opinion “marked the first time [that the

Supreme Court] applied the Double Jeopardy Clause to a sanction without first determining that

it was criminal in nature.” 118 S. Ct. at 493-94. Instead, Halper focused on the proportionality

of the sanction to the harm caused, and “[i]n so doing, . . . elevated a single Kennedy

factor–whether the sanction appeared excessive in relation to its nonpunitive purposes–to

dispositive status.” 118 S. Ct. at 494. Moreover, according to Hudson, another significant flaw

in Halper was “the Court’s decision to assess the character of the actual sanctions imposed,

rather than, as Kennedy demanded, evaluating the statute on its face to determine whether it

provided for what amounted to a criminal sanction.” 118 S. Ct. at 494 (internal quotations and

citations omitted).

       Hudson did not expressly overrule Halper. We need not speculate, however, whether, or

to what extent, the double jeopardy principles enunciated in Halper remain good law. It is

sufficient to recognize that the Hudson Court thought Halper to have been “ill considered” and to

have “proved unworkable[,]” thereby significantly weakening the appellants’ argument in this

case. Hudson, 118 S. Ct. at 494. For purposes of the present analysis, we think it safe to use

Halper’s rationale only inasmuch as it contributes to our understanding of the fourth and seventh

Kennedy factors–whether the sanction promotes the traditional aims of punishment and whether

it appears excessive–without ascribing inordinate value to those factors.

       Under Hudson, the decisions in Ward and Kennedy exemplify the controlling double

jeopardy standards. After receiving the benefit of the Supreme Court’s guidance in Kennedy,


                                                12
our predecessor circuit rendered opinions in several cases applying double jeopardy principles

within the context of prison disciplinary sanctions.10 See United States v. Bryant, 563 F.2d 1227,

1230 (5th Cir. 1977) (administrative revocation of good conduct time after participation in prison

riot did not bar subsequent criminal prosecution for same conduct), cert. denied, 435 U.S. 972

(1978); United States v. Lepiscopo, 429 F.2d 258, 261 (5th Cir.) (administrative forfeiture of

accumulated good time credits and placement in solitary confinement after participation in

escape attempt did not bar subsequent criminal prosecution for same conduct), cert. denied, 400

U.S. 948 (1970); Gilchrist v. United States, 427 F.2d 1132, 1133 (5th Cir. 1970) (affirming

denial of petition for writ of habeas corpus, holding that Double Jeopardy Clause “is not violated

because a prisoner is subjected to discipline by prison authorities for violating prison regulations

and is also prosecuted in the district court in a criminal action based upon the same acts”);

United States v. Cordova, 414 F.2d 277, 277 (5th Cir. 1969) (rejecting argument that “the

combination of administrative punishment and criminal conviction” violated the Double

Jeopardy Clause, and holding that “[a]dministrative discipline of a prisoner does not prohibit

criminal prosecution for the same event”). This controlling precedent from the Former Fifth

Circuit provides some guidance; however, we do not have any binding post-Ward decisions on

the double jeopardy implications of prison discipline. We therefore undertake to analyze this

issue in light of the Supreme Court’s more recent double jeopardy jurisprudence.




       10
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this
court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981.



                                                 13
       The sanctions against the appellants in this case were imposed pursuant to 28 C.F.R. §§

541.10–541.20 (1993). These regulations authorize “institution authorities to impose discipline

on those inmates whose behavior is not in compliance with Bureau of Prisons rules.” 28 C.F.R.

§ 541.10(a). Section 541.13 delineates the various types of prohibited acts and groups them into

categories based upon the seriousness of the infraction. See 28 C.F.R. § 541.13, Table 3. The

“Disciplinary Severity Scale” then describes the types of authorized sanctions that officials have

discretion to impose based upon the category into which the prohibited act falls. See 28 C.F.R. §

541.13, Tables 3–6. The regulations also set forth detailed procedural guidelines that

institutional staff must follow when bringing disciplinary action against an inmate. See 28

C.F.R. §§ 541.14–541.19.

       Under Ward, our first task is to determine whether the government intended the

proceedings under these regulatory provisions to be “criminal” or “civil.” No express preference

for one label or the other appears on the face of the statute. See S.A. Healy Co. v. Occupational

Safety and Health Review Comm’n, 138 F.3d 686, 688 (7th Cir. 1998) (“The first inquiry is

whether Congress has designated the penalty as civil or criminal.”); Mayers v. United States

Dep’t of Health and Human Servs., 806 F.2d 995, 998 (11th Cir. 1986) (noting that the labeling

of a sanction as “civil” is determinative of the government’s intent), cert. denied, 484 U.S. 822

(1987). We therefore turn to the overall purpose expressed in the regulations themselves to

derive the government’s implied intent. See, e.g., United States v. Imngren, 98 F.3d 811, 815

(4th Cir. 1996). Section 541.10(a) states that the disciplinary provisions exist “[s]o that inmates

may live in a safe and orderly environment[.]” To this end, “[s]taff shall take disciplinary action

at such times and to the degree necessary to regulate an inmate’s behavior[.]” 28 C.F.R.


                                                14
§ 541.10(b)(2). The regulations therefore explicitly articulate only a nonpunitive, remedial

purpose. We find this persuasive proof that the government intended for the disciplinary

regulations to be civil in nature, not criminal. See Imngren, 98 F.3d at 815-16 (remedial

purposes expressly stated in regulation contributed to finding of governmental intent to create

civil sanction); Herbst v. Voinovich, 9 F. Supp. 2d 828, 835 (N.D. Ohio 1998) (statute’s

remedial purpose relevant to finding that it was civil in nature).

       Moreover, the regulatory scheme contemplates that some violations of Bureau of Prisons

rules could result in criminal prosecution. Section 541.14(b)(1) provides that an investigation of

alleged inmate misconduct “shall [be] suspend[ed]” whenever “it appears likely that the incident

may be the subject of criminal prosecution[.]” Also, section 541.16(a) states: “Each Bureau of

Prison institution shall have an independent hearing officer (DHO) assigned to conduct

administrative fact-finding hearings covering alleged acts of misconduct and violations of

prohibited acts, including those acts which could result in criminal charges.” In expressly

distinguishing the prison disciplinary process from criminal prosecutions, this language further

confirms that the government intended to create civil sanctions through the regulatory scheme at

issue. See, e.g., Ward, 448 U.S. at 249 (finding that the label of “civil penalty” took on “added

significance given its juxtaposition with the criminal penalties set forth in the immediately

preceding subparagraph”).

       Finally, conferring this type of authority upon an administrative agency, such as the

Bureau of Prisons, is “prima facie evidence that Congress intended to provide for a civil

sanction.” Hudson, 118 S. Ct. at 495 (citing Wong Wing v. United States, 163 U.S. 228, 235




                                                 15
(1896) for the proposition that “quintessential criminal punishments may be imposed only ‘by a

judicial trial’”).

        The second prong of our inquiry is whether the “clearest proof” exists to show that the

sanctions authorized in these regulations are “so punitive in form and effect as to render them

criminal despite [the government’s] intent to the contrary.” United States v. Ursery, 518 U.S.

267, 290 (1996). We note first that, under Hudson, we attribute no significance to the sanctions

actually imposed in order to determine whether these appellants were criminally punished for

double jeopardy purposes. Hudson, 118 S. Ct. at 494-95. Rather, we “evaluat[e] the ‘statute on

its face’ to determine whether it provide[s] for what amount[s] to a criminal sanction[.]”

Hudson, 118 S. Ct. at 494 (citing Kennedy, 372 U.S. at 169); see also Cole v. United States

Dep’t of Agric., 133 F.3d 803, 807 n.4 (11th Cir. 1998). Thus, we are not at liberty to consider

the overall severity of the administrative discipline meted out to each of the appellants in this

case. Instead, the pertinent inquiry is whether the authorized civil sanctions for violations of

prison rules are so punitive as to be transformed into criminal punishment. It is at this analytical

stage that the seven Kennedy factors come into play.

        Before embarking upon this effort to assess the relative “punitiveness” of the regulatory

scheme at issue, we note that prison discipline cases do not fit neatly into the matrix of double

jeopardy doctrine. This is because in the prison context, virtually any form of sanction seems

“criminal” and “punitive” as we commonly understand those terms. With that in mind, we

recognize that many of the Kennedy factors may weigh in the appellants’ favor and support their

argument that the disciplinary regulations constitute criminal punishment for double jeopardy

purposes. For instance, because the appellants are already incarcerated, some of the authorized


                                                 16
sanctions will inevitably “involve[] an affirmative disability or restraint” for purposes of the first

factor. Kennedy, 372 U.S. at 168. In the same vein, some of these sanctions might also be

“historically . . . regarded as a punishment,” given the context. 372 U.S. at 168. With respect to

the third Kennedy factor–whether the sanction “comes into play only on a finding of

scienter”–the regulatory provisions make clear that an inmate’s mental state at the time he is

alleged to have engaged in misconduct is relevant to determining whether disciplinary action is

appropriate. 372 U.S. at 168. See 28 C.F.R. § 541.10(b)(6). The fourth consideration is

whether the sanction “promote[s] the traditional aims of punishment.” 372 U.S. at 168. Indeed,

the imposition of discipline in prison seems aimed, at least in part, at deterring inmates from

violating institutional rules in the future. Fifth, many of the prohibited acts to which these

sanctions apply are “already . . . crime[s].” 372 U.S. at 168. The last two Kennedy factors, on

the other hand, probably weigh against the appellants in that the disciplinary sanctions could be

regarded as “rationally . . . connected” to an alternative, nonpunitive purpose–namely,

maintaining institutional order–without “appear[ing] excessive” in relation to that purpose. 372

U.S. at 168-69.

       We have some flexibility in determining the extent that we choose to utilize the

considerations enunciated in Kennedy for purposes of our double jeopardy analysis. See Hudson,

118 S. Ct. at 493 (classifying Kennedy factors as “useful guideposts”); Ward, 448 U.S. at 249

(describing Kennedy factors as “helpful,” but “neither exhaustive nor dispositive”). We

therefore exercise our discretion to attribute less significance to Kennedy’s list of considerations

in this particular case, primarily because it arises within the prison context. In this unique

setting, we must take into account the fact that a prison’s remedial and punitive interests are


                                                  17
inextricably related. As the Second Circuit observed, “[p]unitive interests and remedial interests

. . . are nowhere so tightly intertwined as in the prison setting, where the government’s remedial

interest is to maintain order and to prevent violent altercations among a population of criminals”

and where “remedial concerns require ‘punishing’ individuals for violent or other disruptive

conduct[.]” United States v. Hernandez-Fundora, 58 F.3d 802, 806, 807 (2d Cir. 1995).

          Moreover, we factor into our analysis the importance of granting some deference to the

judgments of prison authorities in determining “what is necessary and proper to preserve

institutional order and discipline, and to encourage good conduct[.]” United States v. Newby, 11

F.3d 1143, 1146 (3d Cir. 1993); see also Garrity v. Fiedler, 41 F.3d 1150, 1153 (7th Cir. 1994)

(“Historically, we have deferred to the expertise of prison authorities regarding questions of

prison administration and discipline.”). Accordingly, we recognize the need to refrain from

hindering institutional administration. We find the Third Circuit’s reasoning persuasive in this

regard:

          We do not believe that the Double Jeopardy Clause was ever
          intended to inhibit prison discipline. . . . If a prison disciplinary
          sanction bars subsequent criminal prosecution, the prison
          authorities will be forced to choose between instituting a
          disciplinary proceeding or awaiting a criminal prosecution. The
          process of conducting a criminal investigation and prosecution
          may take considerable time. The difficulties and delay that a
          criminal prosecution entails would leave the prisoners who
          violated the prison rules without a prompt resolution of charges
          and hinder prison administration and discipline.

Newby, 11 F.3d at 1146.

          Prison officials have no authority to alter the inmates’ original criminal sentences. They

merely implement disciplinary proceedings that may, at most, change the conditions of the




                                                    18
inmates’ confinement for purposes of maintaining institutional order and encouraging

compliance with prison rules.

       Under these circumstances, we cannot conclude that the regulations authorizing the

prison disciplinary sanctions imposed against these appellants are so punitive as to override the

government’s intent to create remedial administrative penalties for inmate misconduct.

Accordingly, we decline to classify the regulations as “criminal,” and the appellants’ double

jeopardy challenge fails. We therefore affirm the district court’s denial of the appellants’

motions to dismiss the superseding indictment.

B.     Shackling

       “The right to a fair trial is a fundamental liberty[.]” Estelle v. Williams, 425 U.S. 501,

503 (1976). One of the “basic component[s]” of a fair trial is the presumption of innocence.

425 U.S. at 503. “To implement the presumption, courts must be alert to factors that may

undermine the fairness of the fact-finding process.” 425 U.S. at 503. One such factor is the

shackling of a criminal defendant.

       Because of the potentially deleterious effect that shackling can have on an accused’s

constitutional rights, this court has cautioned that “the use of shackles to restrain a defendant at

trial should rarely be employed as a security device.” Zygadlo v. Wainwright, 720 F.2d 1221,

1223 (11th Cir. 1983), cert. denied, 466 U.S. 941 (1984). The Supreme Court has also noted that

“no person should be tried while shackled . . . except as a last resort.” Illinois v. Allen, 397 U.S.

337, 344 (1970). Not only do the presence of shackles erode the presumption of innocence, but

physical restraints may also “confuse the defendant, impair his ability to confer with counsel,

and significantly affect the trial strategy he chooses to follow.” Zygadlo, 720 F.2d at 1223.


                                                 19
Moreover, shackles are “an affront to the very dignity and decorum of judicial proceedings that

the judge is seeking to uphold.” Illinois v. Allen, 397 U.S. at 344.

       Nevertheless, under some circumstances, shackling “is necessary for the safe, reasonable

and orderly progress of trial.” United States v. Theriault, 531 F.2d 281, 284 (5th Cir. 1976).

Courtroom security is a competing interest that may, at times, “outweigh[] a defendant’s right to

stand before the jury untainted by physical reminders of his status as an accused.” Allen v.

Montgomery, 728 F.2d 1409, 1413 (11th Cir. 1984). We grant trial judges reasonable discretion

in balancing these interests and determining whether to physically restrain a criminal defendant.

See Zygadlo, 720 F.2d at 1223.

       The appellants argue that the district court’s decision to require that they appear in court

wearing leg irons deprived them of a fair trial.11 They claim that the court erred in taking into

consideration the general nature of the charges without making individualized determinations as

to the appropriateness of shackles for each appellant. They also assert that the court should not

have used shackling as a preventative security measure, but rather, that the court should have

made the decision to utilize restraints, if at all, only after any disruption actually occurred.

Moreover, the appellants contend that the district court abused its discretion in deferring to the

recommendation of the Marshals Service on the shackling issue.

       We find the appellants’ arguments unpersuasive. The district court’s decision to

physically restrain the appellants with leg irons was an entirely reasonable exercise of its

discretion under these circumstances. The court made a careful and informed decision only after



       11
       Harris and Mayes both argue the shackling issue in their briefs. Calhoun, Fultz, Garrett
and Mimmis adopt their arguments.

                                                  20
considering the evidence adduced from several witnesses at two separate hearings on the issue of

security. Defense counsel had an opportunity to cross-examine these witnesses, argue their

positions to the court, and propose alternative methods of restraint. See United States v. Brazel,

102 F.3d 1120, 1157 (11th Cir.) (affirming district court’s shackling decision in part because

“the court gave defense counsel the opportunity to respond to its concerns and the proposed

actions, and to raise alternative proposals”), cert. denied, 118 S. Ct. 78, 79 (1997), and cert.

denied, 118 S. Ct. 720 (1998). Properly factoring into the district court’s decision were the

appellants’ prison disciplinary records, collective histories of violent crimes, and misconduct in

prior judicial proceedings. See Theriault, 531 F.2d at 284-85 (affirming district court’s

shackling decision, which was based upon the defendant’s prison disciplinary record, prior

escapes from custody and past obstreperous conduct in judicial proceedings); see also Woods v.

Thieret, 5 F.3d 244, 248 n.7 (7th Cir. 1993) (“It is quite obvious that a prisoner with a violent

criminal history and serving a long prison sentence is more likely to disrupt the courtroom or

attempt an escape because he may mistakenly believe he has nothing to lose.”).

       Contrary to the appellants’ assertions, the court was also justified in taking into account

the fact that sixteen defendants were being tried together on charges of participating in a prison

riot. It was not unreasonable for the court to recognize that these exceptional circumstances

posed a potential security problem, and the court was not required to ignore this risk. On these

facts, we simply cannot conclude that the district court abused its discretion in failing to “wait

and see” if a disturbance arose before deciding to impose physical restraints.

       The court was also entitled to rely in part upon the expertise and experience of the

Marshals Service in making its decision. Indeed, the federal marshals’ statutorily-defined duties


                                                 21
include “provid[ing] for the personal protection of Federal jurists, court officers, [and]

witnesses[.]” 28 U.S.C.A. § 566(e)(1)(A) (West 1993). Nevertheless, we note that it is

ultimately the district court’s duty to decide upon the appropriateness of using physical restraints

during the trial of a criminal defendant. See Allen v. Montgomery, 728 F.2d at 1413 n.3

(intimating that “the decision to try a defendant in handcuffs is normally one to be made by the

trial judge”). The Seventh Circuit has noted that “[w]hile the trial court may rely heavily on the

marshals in evaluating the appropriate security measures to take with a given prisoner, the court

bears the ultimate responsibility for that determination and may not delegate the decision to

shackle an inmate to the marshals.” Woods, 5 F.3d at 248 (internal quotation marks omitted).

As we have discussed, the decision to shackle has significant constitutional implications.

Accordingly, we recognize that trial judges should not blindly defer to the recommendation of

law enforcement officials as to the appropriateness of shackling without independently

reviewing the facts and circumstances thought to warrant such a security measure and carefully

considering the legal ramifications of that decision.

       In this case, however, the district court’s decision to consider and agree with the

recommendation of the Marshals Service was an informed one. The record reflects that the court

decided to accept the recommendation to impose physical restraints only after weighing all the

evidence and taking into account all parties’ concerns. Thus, the district court did not blindly

defer to the Marshal’s recommendation, as the appellants suggest. Rather, the court considered

the official recommendation in addition to the remainder of the evidence presented at the

hearings. See Theriault, 531 F.2d at 284 (noting that, in addition to several other reasons for

shackling the defendant, the district court also “openly deferred to the expertise and advice of the


                                                 22
United States Marshal”) (internal quotation omitted); see also Allen v. Montgomery, 728 F.2d at

1413 n.3 (finding “no constitutional error in permitting the sheriff to decide what forms of

security were necessary to bring Allen safely to trial”).

       Having considered the totality of the circumstances, we find no abuse of discretion in the

district court’s decision that shackling was appropriate during the course of the appellants’ trial

and that leg irons were the least restrictive method of effective restraint. We also conclude,

however, that even if the court had abused its discretion, the appellants have failed to

demonstrate that the presence of the physical restraints prejudiced them in any way. In Illinois v.

Allen, the Supreme Court observed that “the sight of shackles . . . might have a significant effect

on the jury’s feelings about the defendant[.]” 397 U.S. at 344 (emphasis added). The restraints

in this case were not capable of affecting the jury’s attitude in any way because the district court

took great care to ensure that the jury never saw that the appellants were wearing leg irons. The

record reflects that tablecloths and railings concealed the appellants’ legs from the jury’s view;

the jury never saw the appellants enter or exit the courtroom; and none of the appellants who

testified wore their leg irons while doing so. See Brazel, 102 F.3d at 1158 (finding no “realistic

likelihood” of prejudice where shackles were “screened from view” with tablecloths).

Moreover, the chains were padded to muffle any sounds.

       For the foregoing reasons, we affirm the judgment of the district court.

                                           AFFIRMED.




                                                 23
