U.S. v. Brown

Decision Date05 May 1995
Docket NumberNo. 94-30271,94-30271
Citation59 F.3d 102
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Reggie Neon BROWN, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

David T. McDonald, Cross & McDonald, Portland, OR, for defendant-appellant.

Baron C. Sheldahl, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING, REAVLEY, ** and NORRIS, Circuit Judges.

PER CURIAM:

I.

Reggie Brown participated in a prison riot while serving a 15-year sentence for armed robbery. Brown was charged in a prison disciplinary proceeding with assault on a corrections officer, riot, attempted murder, and destruction of government property. Brown was found to have committed the assault, but the remaining allegations were dismissed. Prison authorities disallowed forty-one days of good time credit Brown could have earned on the anniversary of his imprisonment and ordered Brown transferred to a higher security institution. Brown was subsequently indicted for assaulting a federal officer and destruction of government property based on the same conduct for which he had been disciplined by prison authorities. Brown moved to dismiss the indictment on double jeopardy grounds. The district court denied the motion, and Brown appeals.

II.

We have held that the bar against double jeopardy does not preclude criminal prosecution for conduct for which prison authorities have already imposed administrative discipline. See United States v. Apker, 419 F.2d 388, 388 (9th Cir.1969) (holding that segregated confinement after escape attempt did not preclude criminal prosecution for same conduct). Other circuits have held the same. See Garrity v. Fiedler, 41 F.3d 1150, 1152 (7th Cir.1994) (citing cases from other circuits).

Brown argues these holdings have been overruled implicitly by several recent decisions redefining "punishment" for purposes of the bar against multiple punishments for the same offense. He points in particular to United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), in which the Supreme Court held that a civil monetary penalty sufficiently disproportionate to the harm caused to the government was punishment for double jeopardy purposes. See id. at 449-50, 109 S.Ct. at 1902-03. Specifically, Halper held that a civil penalty is "punishment" if it "cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes." 490 U.S. at 448, 109 S.Ct. at 1901 (emphasis added); see also Austin v. United States, --- U.S. ----, ----, ---- n. 12, 113 S.Ct. 2801, 2806, 2810 n. 12, 125 L.Ed.2d 488 (1993) (citing Halper for the proposition that a sanction is "punishment" if "it can only be explained as serving in part to punish" (emphasis added)); United States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1219 (9th Cir.1994) ("[A] sanction which is designed even in part to deter or punish will constitute punishment, regardless of whether it also has a remedial purpose.").

We note at the outset that Halper did not involve a prison disciplinary proceeding. This distinction is critical. As Halper noted, applying the double jeopardy bar to a typical civil sanction does not "prevent the Government from seeking and obtaining both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding." Halper, 490 U.S. at 450, 109 S.Ct. at 1902. By contrast, as a practical matter applying the prohibition against double jeopardy to prison disciplinary proceedings would effectively compel the government to choose between remedial and punitive goals. Seeking disciplinary sanctions and criminal penalties in a single proceeding is not feasible: "[t]he difficulties and delay that a criminal prosecution entails would leave the prisoners who violated the prison rules without a prompt resolution of charges and hinder prison administration and discipline." United States v. Newby, 11 F.3d 1143, 1146 (3rd Cir.1993); see also Garrity, 41 F.3d at 1153. If prison authorities waited until prosecutors decided whether to bring charges and criminal proceedings were completed, the offending inmate might remain in the prison as a threat to institutional order for an extended period. 1 If, on the other hand, prison authorities acted to maintain order by promptly sanctioning the inmate, criminal prosecution would be barred.

We conclude that these problems do not arise, because the prohibition against double jeopardy does not bar criminal prosecution for conduct that has been the subject of prison disciplinary sanctions for two independent reasons: 1) even if the sanctions were "punishment," they were integral parts of Brown's single punishment for armed robbery; and 2) the sanctions are not punishment for purposes of double jeopardy because they are solely remedial.

A.

Even if we assume that withholding of good time credit and the disciplinary transfer were punitive, these sanctions were not distinct from Brown's punishment for his armed robbery conviction.

Revocation of parole or probation is regarded as reinstatement of the sentence for the underlying crime, not as punishment for the conduct leading to the revocation. See United States v. Soto-Olivas, 44 F.3d 788, 789, 791 (9th Cir.1995). Parole and probation are part of the original sentence. Their continuance is conditioned on compliance with stated conditions--if the defendant does not comply with those conditions, parole and probation may be revoked. Revocation does not extend the original sentence, it simply alters the conditions under which it is served. The fact that the events which lead to revocation may also constitute a second crime does not mean the revocation itself is punishment for the second crime. See id.

Similarly, compliance with the conditions for awarding good time credit is one of the terms of the original sentence. See 18 U.S.C. Sec. 3624(b)(1) (providing that a prisoner's sentence for a crime of violence may be reduced via good time credits if he has "displayed exemplary compliance with ... institutional disciplinary regulations"). Withholding such credits, even if "punitive," does not alter the original sentence, it only means the prisoner must serve a larger part of that sentence in prison.

As to the transfer, "[c]onfinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose." Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976) (holding that a transfer between prisons, even though "life in one prison is much more disagreeable than in another," generally does not implicate the due process clause). A change in the place of Brown's confinement based upon an administrative determination that his disruptive conduct required transfer to a higher security facility--even if "punitive"--did not alter the original sentence and so did not bar criminal prosecution for that same disruptive conduct. 2

B.

Moreover, withholding of good time credit and disciplinary...

To continue reading

Request your trial
116 cases
  • State v. Black
    • United States
    • New Jersey Supreme Court
    • May 14, 1998
    ...to a proceeding does not of itself change the nature of the sanction which results from that proceeding." Id. at 1307. In United States v. Brown, 59 F.3d 102 (1995), the Ninth Circuit again held that parole revocation does not constitute "punishment" for double jeopardy purposes. The court ......
  • Turner v. Johnson
    • United States
    • U.S. District Court — Southern District of Texas
    • March 15, 1999
    ... ... 985, 109 S.Ct. 540, 102 L.Ed.2d 570 (1988); see also Sledge v. Pratt, 106 F.3d 401, 1996 WL 765326, at *1 (6th Cir. Dec.13, 1996); Brown v. Champion, 61 F.3d 915, 1995 WL 433221, at *1 (10th Cir. July 24, 1995); Blocker v. Hall, 29 F.3d 630, 1994 WL 386311, at *2 (9th Cir. July 25, ... ...
  • U.S. v. Mayes
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • October 29, 1998
    ...v. Hernandez-Fundora, 58 F.3d 802 (2d Cir.), cert. denied, 515 U.S. 1127, 115 S.Ct. 2288, 132 L.Ed.2d 290 (1995); United States v. Brown, 59 F.3d 102 (9th Cir.1995); Garrity v. Fiedler, 41 F.3d 1150 (7th Cir.1994), cert. denied, 514 U.S. 1044, 115 S.Ct. 1420, 131 L.Ed.2d 303 (1995); United ......
  • State v. Kell
    • United States
    • Utah Supreme Court
    • November 1, 2002
    ...1220 (11th Cir.1998) (ruling that imposing prison sanctions after a riot did not preclude criminal prosecution); United States v. Brown, 59 F.3d 102, 105 (9th Cir.1995) (ruling that parole revocation, disciplinary transfer, and loss of good time credits did not violate double jeopardy); Uni......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT