

                  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 &amp; 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
