U.S. v. Hernandez-Fundora

• Decision Date: 05 June 1995
• Docket Number: HERNANDEZ-FUNDOR,D,No. 1073,1073
• Citation: 58 F.3d 802
• Parties: UNITED STATES of America, Appellee, v. Albertoefendant-Appellant. ocket 93-1632.
• Court: U.S. Court of Appeals — Second Circuit

Page 802

58 F.3d 802

UNITED STATES of America, Appellee, v. Alberto HERNANDEZ-FUNDORA, Defendant-Appellant.

No. 1073, Docket 93-1632.

United States Court of Appeals Second Circuit.

Argued March 17, 1994.

Decided Feb. 14, 1995.

Amended June 22, 1995.

Certiorari Denied June 5, 1995.

See 115 S.Ct. 2288.

William P. Fanciullo, Albany, NY, for defendant-appellant.

George A. Yanthis, Asst. U.S. Atty. for the N.D. of N.Y., Albany, NY (Gary L. Sharpe, U.S. Atty. for the N.D. of N.Y., Albany, NY, of counsel), for appellee.

Before: MAHONEY, WALKER, and SPROUSE, ^* Circuit Judges.

MAHONEY, Circuit Judge:

Defendant-appellant Alberto Hernandez-Fundora appeals from a judgment of conviction entered September 13, 1993 in the United States District Court for the Northern District of New York, Thomas J. McAvoy, Chief Judge, that convicted Hernandez-Fundora, following a jury trial, of assault within the special maritime and territorial jurisdiction of the United States in violation of 18 U.S.C. Secs. 113(c) and 7(3). Hernandez-Fundora argues on appeal that: (1) this criminal prosecution for assault following his punishment for that assault by prison officials violates double jeopardy; and (2) the jurisdictional element of the offense for which he was convicted was (a) not supported by legally sufficient evidence (which was improperly admitted), and (b) improperly removed from the jury by the trial court's instruction directing the jury that if they found beyond a reasonable doubt that the assault occurred at Raybrook Federal Correctional Institution ("Raybrook"), the jurisdictional element was satisfied. Hernandez-Fundora also challenges his sentence on the grounds that: (1) he was erroneously denied a reduction of offense level for acceptance of responsibility pursuant to USSG Sec. 3E1.1; and (2) the four level enhancement for use of a dangerous weapon pursuant to USSG Sec. 2A2.2(b)(2)(B) constituted impermissible "double counting."

We agree with Hernandez-Fundora's "double counting" contention, but reject his other arguments. We accordingly vacate the judgment of conviction and remand for resentencing.

Background

On September 8, 1992, while he was incarcerated at Raybrook pursuant to a detainer filed by the Immigration and Naturalization Service, Hernandez-Fundora struck Bradley Parris, another Raybrook inmate, in the face with a table leg, breaking Parris' jaw. During a September 17, 1992 interview with an FBI agent, Hernandez-Fundora admitted hitting Parris with the table leg, but asserted that he had done so because Parris had on more than one occasion sprayed Hernandez-Fundora's cell with chemicals, causing Hernandez-Fundora to become sick. Following this incident, Hernandez-Fundora was placed in a special housing unit at Raybrook for "disciplinary segregation" pursuant to 28 C.F.R. Sec. 541.21. He received at least forty-five days of disciplinary segregation based upon the September 8, 1992 assault and the concomitant destruction of property (i.e., breaking the leg off the table). ¹

On January 22, 1993, a grand jury returned an indictment charging Hernandez-Fundora with assault within the special maritime and territorial jurisdiction of the United States in violation of 18 U.S.C. Secs. 113(c) and 7(3), based upon this incident. The jury trial commenced before Judge McAvoy on June 16, 1993. At trial, Parris testified that he had been hit in the face with a table leg by Hernandez-Fundora, and that he had never sprayed chemicals in Hernandez-Fundora's cell. He also testified on cross-examination that he had never been in Hernandez-Fundora's cell.

Hernandez-Fundora testified in his own behalf and admitted that he had hit Parris with the table leg, but maintained that Parris, in the course of his work in the safety department at Raybrook, had been spraying Hernandez-Fundora's cell room with chemicals that had made Hernandez-Fundora sick. Hernandez-Fundora testified that he hit Parris with the table leg only in order to get Parris to stop spraying Hernandez-Fundora's cell with chemicals.

The jury returned a guilty verdict on June 17, 1993. The district court sentenced Hernandez-Fundora principally to the statutory maximum term of sixty months imprisonment, with credit for time served from the date of the incident, September 8, 1992.

This appeal followed.

Discussion

We address in turn the arguments by Hernandez-Fundora that have been described at the outset of this opinion.

A. The Double Jeopardy Claim.

Prior to trial, Hernandez-Fundora moved to dismiss the indictment on the ground that proceeding with the prosecution would violate his constitutional right not to be punished twice for the same offense, i.e., the attack on Parris. See U.S. Const. amend. V. The motion was assigned to Judge Lee P. Gagliardi, who denied the motion by an order entered June 11, 1993, and an accompanying opinion dated June 15, 1993, on the grounds that: (1) "[d]isciplinary segregation is not 'punishment' within the meaning of the Double Jeopardy Clause;" and (2) "[a]ssuming ... that disciplinary segregation is punishment within the context of the [Double Jeopardy Clause], it is not prohibited because Congress intended that separate punishments be imposed for the same act under these circumstances." United States v. Hernandez-Fundora, No. 93-CR-20 (CGC), slip op. at 2 (N.D.N.Y. June 15, 1993). Hernandez-Fundora argues on this appeal that: (1) the disciplinary segregation imposed at Raybrook constituted punishment within the meaning of the Double Jeopardy Clause; and (2) Congress did not intend separate punishment in these circumstances.

"The Double Jeopardy Clause provides that no one shall 'be subject for the same offense to be twice put in jeopardy of life or limb.' U.S. Const. amend. V. The Clause protects against both a subsequent prosecution for the same offense after acquittal or conviction as well as multiple punishments for the same offense." United States v McCormick, 992 F.2d 437, 439 (2d Cir.1993) (collecting cases). It is by now well settled that "punishment" imposed by prison authorities for infractions of prison regulations does not generally bar a subsequent criminal prosecution for the same conduct. See United States v. Rising, 867 F.2d 1255, 1259 (10th Cir.1989) ("administrative punishment imposed by prison officials does not render a subsequent judicial proceeding, criminal in nature, violative of the double jeopardy clause") (collecting cases); Kerns v. Parratt, 672 F.2d 690, 691-92 (8th Cir.1982) (per curiam) ("[Administrative] proceedings [based upon violation of prison disciplinary rules] do not place an offender in jeopardy for purposes of the double jeopardy clause. It is well-settled that there is no bar to separate criminal prosecution....") (collecting cases); United States v. Stuckey, 441 F.2d 1104, 1105-06 (3d Cir.) (per curiam) ("Administrative sanctions imposed by prison officials upon a prisoner following his apprehension in connection with the commission of a crime is not a bar to subsequent prosecution for the crime in a court of competent jurisdiction.") (collecting cases), cert. denied, 404 U.S. 841, 92 S.Ct. 136, 30 L.Ed.2d 76 (1971).

Hernandez-Fundora proffers a twofold argument to persuade us that the general rule does not apply in the instant case. He argues that United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), teaches that if a particular sanction "serves the goals of punishment," id. at 448, 109 S.Ct. at 1902, it constitutes punishment for double jeopardy purposes. He further contends that the sanction imposed in this case constituted punishment because it consisted of "disciplinary segregation" as opposed to administrative detention.

We are unpersuaded. Halper addressed the issue "whether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause," 490 U.S. at 446, 109 S.Ct. at 1901, and is therefore not precisely on point. However, Halper does provide some guidance for analyzing the instant case. Halper opined that the civil fine at issue in that case constituted punishment for double jeopardy purposes because of the "tremendous disparity" between the civil penalty and the government's actual damages, id. at 452, 109 S.Ct. at 1903-04, and concluded that a sanction that "may not fairly be classified as remedial, but only as a deterrent or retribution" constitutes a punishment for double jeopardy purposes. Id. at 449, 109 S.Ct. at 1902. Punitive interests and remedial interests, however, are nowhere so tightly intertwined as in the prison setting, where the government's remedial interest is to maintain order and to prevent violent altercations among a population of criminals. Accordingly, the 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. In this context, we perceive no distinction of constitutional significance between "disciplinary segregation" pursuant to 28 C.F.R. Sec. 541.21 and "[a]dministrative detention" pursuant to id. Sec. 541.22.

Subsequent to Halper, the question whether disciplinary segregation bars a subsequent prosecution was recently addressed by the Third Circuit, which concluded that: "Disciplinary sanctions imposed by prison authorities for infractions of prison regulations do not bar a subsequent criminal prosecution." United States v. Newby, 11 F.3d 1143, 1144 (3d Cir.1993) (citing Rising, 867 F.2d at 1259; Kerns, 672 F.2d at 691-92; Stuckey, 441 F.2d at 1105-06), cert. denied, --- U.S. ----, --- U.S. ----, 114 S.Ct. 1841, 115 S.Ct. 111, 128 L.Ed.2d 468, 130 L.Ed.2d 58 (1994). The disciplinary sanctions imposed upon the defendant in Newby consisted of disciplinary transfer, disciplinary segregation, and the loss of one thousand days of "good time credits." Newby, 11 F.3d at 1145. Although Newby does not explicitly address the distinction between administrative...