
USCA1 Opinion

	




                            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  limned the  reasons prompting  the desired          reforms:                         The  Federal   supervisory  agencies  in                    varying    degrees   have    been   seriously                    handicapped  in  their  efforts   to  prevent                    irresponsible  and  undesirable practices  by                    deficiencies   in  the   statutory  remedies.                    Experience  has  often demonstrated  that the                    remedies   now   available  to   the  Federal                    supervisory agencies are not only too drastic                    for  use  in many  cases,  but  are also  too                    cumbersome to bring  about prompt  correction                    and   promptness   is   very  often   vitally                    important.          S. Rep. No. 1482, 89th Cong.,  2d Sess. 1, 5 (1966), reprinted in                                                               _________ __          1966  U.S.C.C.A.N.  3532,  3537.   When  taken  in  light of  the          Committee's manifold  concerns about  the safety of  the nation's                                        ____________________               12Stoller's reliance  on United States v.  Bizzell, 921 F.2d                                        _____________     _______          263 (10th Cir. 1990),  is misplaced.  There, the  district court,          although concluding  that the  debarment order was  not punitive,          rested its decision in part on statutory limitations attendant to          the government's proscriptive powers.   See id. at 265.  But  the                                                  ___ ___          court of appeals did not adopt this rationale,  affirming instead          on  the general  remedial  purposes underpinning  that  statutory          scheme.  See id. at 267.                   ___ ___                                          24          financial institutions,  see id. at 3536-38,  the quoted language                                   ___ ___          comprises a  patent indication  that Congress  intended debarment          primarily to protect  depositors from scurrilous bank  officials.          This is  a vitally important  datum:  using  a civil sanction  to          safeguard the integrity of the  banking industry and protect  the          interests of depositors fulfills a remedial purpose.  See Hudson,                                                                ___ ______          14 F.3d at 541-42.                    Nothing in the Financial Institutions  Reform, Recovery          and Enforcement Act of 1989 (FIRREA) alters this outlook.  Though          FIRREA  expanded the  scope of  possible proscription  beyond the          offending  official's  own  bailiwick  and  for  the  first  time          authorized  an industry-wide ban, see 12  U.S.C.   1818(e)(7), it                                            ___          did  not   otherwise  change  the  substance   of  the  debarment          provision.  The only significant legislative history dealing with          the  industry-wide ban  addresses the  exceptions regulators  are          empowered  to  make and  explains  them  in essentially  remedial          terms.  See, e.g., H.R. Rep. No. 54(I), 101st Cong., 1st Sess. 1,                  ___  ____          468, (1989), reprinted  in 1989 U.S.C.C.A.N. 86,  264; H.R. Conf.                       _________  __          Rep. No. 222, 101st  Cong., 1st Sess. 393, 440  (1989), reprinted                                                                  _________          in 1989 U.S.C.C.A.N. 432, 479.  The other changes accomplished by          __          Title IX  of FIRREA are a  mixed bag and, in  the aggregate, shed          little  illumination.   The  short of  it is  that the  annals of          FIRREA offer no convincing reason to infer that Congress intended          to  alter  the fundamental  (remedial)  nature  of the  debarment          provision.                    Stoller  resists  this  conclusion,  plucking  a single                                          25          sentence from  FIRREA's lengthy  legislative history.   The House          Report,  in its  introduction  to FIRREA  Title  IX, states  that          "[t]his Title gives the regulators and the Justice Department the          tools  which they need .  . . to  punish culpable individuals, to          turn  this  situation around,  and  to  prevent these  tremendous          losses  to the  Federal deposit  insurance funds from  ever again          recurring."  H.R.  Rep. No.  54(I), supra,  1989 U.S.C.C.A.N.  at                                              _____          262.  But this language  applies to Title IX  as a whole, not  to          the  debarment  provision  per  se.   The  immediately  preceding          sentence explains that Title  IX is intended both to  enhance the          FDIC's  regulatory powers and  to strengthen  applicable criminal          justice provisions with a view to "restoring public confidence in          the nation's financial system and serv[ing] to protect the public          interest."  Id.   Read  in tandem, these  sentences suggest  that                      ___          Congress visualized industry-wide debarment as a remedial device,          notwithstanding  that the  bill included  other emendations  that          were calculated to increase punishments.                    To sum  up,  the legislative  history undergirding  the          debarment provision indicates that Congress gave the FDIC removal          power for  remedial purposes,  and FIRREA  does not  suggest that          Congress experienced a change of heart.                    2.  Double  jeopardy problems must be examined in their                    2.          actual application.  See  Halper, 490 U.S.  at 447.  Moving  from                               ___  ______          the general to the  specific, we inspect the circumstances  under          which the FDIC sanctioned Stoller.  Our assay is hampered because          the  regulators' decisions are  opaque in certain  respects.  The                                          26          ALJ did little more than find that the statutory preconditions to          proscription  had  been  met.   Similarly,  the  Board's  initial          decision merely  stated that  "the serious nature  of [Stoller's]          unsafe or unsound  conduct and serious breaches of fiduciary duty          merit  prohibition  from  participating  in the  conduct  of  the          affairs of any  other federally insured  depository institution."          In re  Stoller, No. 90-115e, at 23-24 (FDIC Feb. 18, 1992) (Board          ______________          Dec. I).   This explanation seems equally consistent  with either          remedial or punitive aims; the  Board might have thought Stoller,          as a  continuing participant in the banking  community, likely to          present an ongoing threat to the public,  or it might simply have          thought that he deserved severe punishment.                    The   Board's  second   decision   furnishes   a   more          transparent  window into  its  cerebrations,  and  resolves  this          amphiboly.   That decision (in which the Board extended Stoller's          exile  by prohibiting him from acting as counsel to any financial          institution)  persuasively demonstrates  that the  Board intended          debarment to serve a remedial  end.  The Board reasoned  that the          very nature of  a lawyer's  relationship with a  bank provides  a          unique  opportunity for double dealing.   See In  re Stoller, No.                                                    ___ ______________          90-115e,  at 9  (FDIC Sept.  22, 1992)  (Board Dec. II).   Hence,          debarment  orders  should  sweep  broadly to  ensure  that  rogue          lawyers  do not have repeated  opportunities to bilk  banks.  See                                                                        ___          id.  at  8.    Because  "an  attorney  representing  a  financial          ___          institution,  like  the  institution's  directors  and  officers,          occupies  a  position  of   trust  and  has  important  fiduciary                                          27          obligations to the financial institution," id. at 9, the attorney                                                     ___          has "a  significant opportunity  to harm  the institution."   Id.                                                                        ___          Applying  these principles,  the Board  ordered debarment  in the          most wide-ranging terms.   It  wrote "that Stoller  could not  be          trusted to  put the bank's interests before his own."  Id. at 10.                                                                 ___          On this basis, the order seems unquestionably to be remedial.                    Struggling  against this  pointed  explication  of  the          Board's rationale,  Stoller asseverates that the  debarment order          cannot be viewed as remedial because the FDIC did not  assess the          danger  that continued  involvement  on  his  part posed  to  the          banking system or to depositors.  His asseveration lacks force.                    In  the first place, the  FDIC is not  required to make          specific findings on the  magnitude of a potential threat  to the          nation's financial  institutions.   Halper  expressly  recognizes                                              ______          that civil sanctions need not be precisely calibrated in order to          survive scrutiny under the Double Jeopardy Clause as long as they          work "rough remedial justice."   490 U.S. at 446.  We  think that          this principle  is fully  transferable to the  debarment context.          When, as now, the government demonstrates a pattern of systematic          wrongdoing involving large  sums of money, a  debarment order may          properly  be  said  to  work  rough  remedial  justice without  a          detailed  prognostication regarding  the probable  extent of  the          wrongdoer's future  misconduct, if unchecked.   See United States                                                          ___ _____________          v. Furlett, 974  F.2d 839,  844 (7th Cir.  1992); Manocchio,  961             _______                                        _________          F.2d at  1542; see also United  States v. Winter, 22  F.3d 15, 17                         ___ ____ ______________    ______          (1st  Cir. 1994)  ("It is  common wisdom  that past  is prologue,                                          28          foreshadowing the future.").  Here, the Board, based on Stoller's          pervasive  misconduct,   could   reasonably  conclude   that   he          represented  a major threat to  the banking industry,  and that a          broad debarment order would serve prophylactic purposes.                    In the second place, Stoller's claim that the Board did          not consider the  risk he  presented to the  banking industry  is          incorrect  as a  matter of fact.   The Board's  attention to this          issue is not only evident from the parts of the decisions that we          have  cited,  but  it  is  also  made  manifest  by  the  Board's          discussion of a possible reprieve from the industry-wide ban.  In          that regard, the  Board wrote that the  FDIC would have a  future          opportunity to  determine whether Stoller "could  perform work on          behalf  of  [federally insured  depository  institutions] without          undue risk  to those institutions."   Board Dec. II at  11.  This          statement not only reflects the Board's worries about imperilling          the  public but also highlights the conditional nature of the ban             a fact that  itself militates in  favor of a  finding that the          sanction  is remedial as opposed  to punitive.13   See Hudson, 14                                                             ___ ______          F.3d at 542.                    3.   Where, as here, double  jeopardy analysis proceeds                    3.          under  an appraisal of the totality of the circumstances, a civil          sanction  need  not be  solely  remedial  to pass  constitutional          muster.   In  other  words,  the  fact  that  something  akin  to                                        ____________________               13We  do  not mean  to suggest  that  a permanent  ban would          necessarily be punitive.   See  Bae, 44 F.3d  at 495  (explaining                                     ___  ___          that "the duration or severity of an employment  restriction will          not mark  it as  punishment where  it  is intended  to further  a          legitimate governmental purpose").                                          29          punishment  occurs along  with, and  incidental to,  a sanction's          overriding  remedial purpose  will  not  transform a  permissible          civil  penalty  into  a  prohibited  multiple  punishment.    See                                                                        ___          Hernandez-Fundora, 58 F.3d at  806; Bae, 44 F.3d at  493.  Having          _________________                   ___          examined    1818(e)(1), the applicable  legislative history,  the          circumstances attendant to Stoller's duplicity, and the rationale          underlying the  Board's issuance of the  specific debarment order          at issue here, we  discern a single unifying thread:   protection          of the  integrity of the  nation's financial institutions.   This          comports  with the root purpose of debarment:  to purge sensitive          industries of  corruption and thereby  protect the public.   This          purpose, evident here, is essentially remedial in nature.                    We  need  go no  further.    Although the  durationally          indefinite  order  of  proscription directed  against  Stoller is          harsh,  we  do not  believe that  it  is disproportionate  to the          remedial goals of    1818(e)(1).  Nor is the  debarment order out          of proportion  to  Stoller's  wrongdoing.    This  is  a  salient          consideration  because  an  individual's   misconduct  frequently          informs the  need for remediation.   See Hudson, 14 F.3d  at 542;                                               ___ ______          Furlett, 974  F.2d at  844.   Here,  Stoller caused  the Bank  to          _______          suffer extensive losses, and did so  by the most devious means             playing  shell games with real  estate trusts, abusing a position          of  trust,  and  duping  others by  concealing  his  interests in          financial transactions.  In our judgment, the Board's decision to          ban Stoller  indefinitely from  all association with  the banking          industry  "reasonably  can  be   viewed  as  a  remedial  measure                                          30          commensurate  with his  wrongdoing."  Furlett,  974 F.2d  at 844.                                                _______          Put another way, industry-wide debarment, in the circumstances of          this case, produces rough remedial justice.          IV.  CONCLUSION          IV.  CONCLUSION                    When the  powers of  government are arrayed  against an          individual, courts must be vigilant to ensure that the individual          is not punished twice for the same offense through an artifice in          which  one punishment masquerades as  a civil sanction.   Yet the          fear  of  potential abuse  should not  be  allowed to  sweep away          common sense.   Regulators who act  principally to safeguard  the          integrity  of the industries that  they oversee or  to shield the          public  from   the  machinations  of   unscrupulous  persons  are          representatives  of the sovereign   but they are not purveyors of          punishment  in a constitutionally  relevant sense.   In  the end,          then, courts  must distinguish carefully between  those sanctions          that constitute impermissible exercises of the government's power          to  punish and those that constitute permissible exercises of the          government's remedial authority (even if effectuating  a specific          remedy  sometimes carries  with  it an  unavoidable component  of          deterrence or retribution).                    Taking into  account the totality of the circumstances,          we  hold  that  the  debarment  order  imposed  by  the  FDIC  is          predominantly remedial in nature.  Because it does not constitute          a  punishment  under appropriate  double  jeopardy  analysis, the          district  court  did not  err in  denying  the motion  to dismiss                                          31          various counts contained in the indictment.14          Affirmed.          Affirmed.          ________                                        ____________________               14We note in passing that we would reach an identical result          if  we  evaluated  the   debarment  order  under  the  Hudson/Bae                                                                 ______ ___          variation  on the Halper theme  instead of under  the totality of                            ______          the circumstances.                                           32                                  STATUTORY APPENDIX                                  STATUTORY APPENDIX          I.  Debarment.          I.  Debarment.              _________                    (1) Authority to issue order.--Whenever the appropriate          Federal banking agency determines that--                         (A) any institution-affiliated party has, directly                    or indirectly--                              (i) violated--                                   (I) any law or regulation;                                   (II)  any  cease-and-desist order  which                              has become final;                                   (III) any condition  imposed in  writing                              by the appropriate Federal banking  agency in                              connection  with the grant of any application                              or   other   request   by   such   depository                              institution; or                                   (IV) any written agreement  between such                              depository institution and such agency;                              (ii) engaged or participated in any unsafe or                         unsound  practice in  connection with  any insured                         depository institution or business institution; or                              (iii)  committed  or  engaged  in   any  act,                         omission, or practice  which constitutes a  breach                         of such party's fiduciary duty;                         (B)  by reason  of  the  violation,  practice,  or                    breach described in any clause of subparagraph (A)--                              (i)  such  insured depository  institution or                         business institution has suffered or will probably                         suffer financial loss or other damage;                              (ii) the interests  of the insured depository                         institution's depositors  have  been or  could  be                         prejudiced; or                              (iii) such party  has received financial gain                         or  other benefit  by  reason  of such  violation,                         practice, or breach; and                         (C) such violation, practice, or breach--                              (i) involves personal dishonesty on  the part                         of such party; or                              (ii)   demonstrates  willful   or  continuing                         disregard   by  such  party   for  the  safety  or                         soundness of such  insured depository  institution                         or business institution,          the agency  may serve  upon such  party a written  notice of  the          agency's  intention to  remove  such  party  from  office  or  to          prohibit any further participation by  such party, in any manner,          in  the  conduct  of  the  affairs   of  any  insured  depository          institution.          12 U.S.C.   1818(e)(1) (1994).                                          33          II.  Industry-wide Prohibition.          II.  Industry-wide Prohibition.               _________________________                    (A) In  general.--Except  as provided  in  subparagraph          (B),  any  person who,  pursuant to  an  order issued  under this          subsection . . . has been  removed or suspended from office in an          insured  depository institution or  prohibited from participating          in   the  conduct  of  the   affairs  of  an  insured  depository          institution may not, while  such order is in effect,  continue or          commence to hold  any office in, or participate in  any manner in          the  conduct  of the  affairs  of .  . .  any  insured depository          institution . . . .                    (B) Exception if agency provides  written consent.--If,          on  or after  the date an  order is issued  under this subsection          which removes or suspends from office  any institution-affiliated          party or prohibits  such party from participating in  the conduct          of  the affairs of an  insured depository institution, such party          receives the written consent  of [the relevant federal agencies],          subparagraph (A) shall, to  the extent of such consent,  cease to          apply  to such party with respect to the institution described in          each written consent.          12 U.S.C.   1818(e)(7) (1994).          III.  Offenses Charged in the Indictment.          III.  Offenses Charged in the Indictment.                __________________________________                    The  superseding  indictment handed  up  on  January 4,          1995,  charged Stoller with  violating various criminal statutes.          Those statutes provide in pertinent part:                         Whoever,  being  an  officer, director,  agent  or                    employee of  . . . any  . . . national  bank or insured                    bank . . .  embezzles, abstracts, purloins or willfully                    misapplies any of the moneys,  funds or credits of such                    bank . . . shall be [punished as provided by law] . . .                    .          18 U.S.C.   656 (1988).                         Whoever .  . . as an  officer, director, employee,                    agent,   or  attorney   of  a   financial  institution,                    corruptly solicits  or demands  for the benefit  of any                    person,  or  corruptly  accepts  or  agrees  to accept,                    anything  of value  from  any person,  intending to  be                    influenced  or rewarded in connection with any business                    or  transaction of  such  institution .  .  . shall  be                    [punished as provided by law] . . . .          18 U.S.C.   215(a) (1988).                         Whoever makes any false entry in any book, report,                                          34                    or statement of [a  federally insured] bank with intent                    to injure or defraud  such bank, or any other  company,                    body politic or corporate, or any individual person, or                    to  deceive any  officer of  such bank,  or the  . .  .                    Federal Deposit Insurance Corporation  . . . [s]hall be                    [punished as provided by law].          18 U.S.C.   1005 (1988).                         (a) Whoever commits  an offense  against                    the United  States or aids,  abets, counsels,                    commands, induces or procures its commission,                    is punishable as a principal.                         (b)  Whoever willfully causes  an act to                    be done which if directly performed by him or                    another  would  be  an  offense  against  the                    United States, is punishable as a principal.          18 U.S.C.   2 (1988).                                          35
