U.S. v. McAllister

• Decision Date: 17 July 1997
• Docket Number: D,No. 1235,1235
• Citation: 119 F.3d 198
• Parties: UNITED STATES of America, Appellant, v. James W. McALLISTER, Defendant-Appellee. ocket 96-1591.
• Court: U.S. Court of Appeals — Second Circuit

Page 198

119 F.3d 198

UNITED STATES of America, Appellant, v. James W. McALLISTER, Defendant-Appellee.

No. 1235, Docket 96-1591.

United States Court of Appeals, Second Circuit.

Argued April 11, 1997.

Decided July 17, 1997.

Andrew R. Kinnie, Watertown, NY (Kinnie Law Firm, Watertown, NY), for Defendant-Appellee.

Michael C. Olmsted, Assistant United States Attorney, Syracuse, NY (Thomas J. Maroney, United States Attorney, Northern District of New York), for Appellant.

Before: VAN GRAAFEILAND, WALKER, and LEVAL, Circuit Judges.

LEVAL, Circuit Judge:

The United States (the "government") appeals from a final judgment of the United States District Court for the Northern District of New York. Magistrate Judge Daniel Scanlon, Jr. dismissed a criminal information charging defendant James McAllister with the misdemeanor of driving while intoxicated on a United States military installation, in violation of 18 U.S.C. § 13. The district court, Thomas J. McAvoy, C.J., affirmed. The court found that McAllister had received prior "punishment" when his commanding officer issued a letter of reprimand, reduced his rank, suspended his on-base driving privileges for one year, and barred his re-enlistment, making any additional punishment unconstitutional under the Double Jeopardy Clause.

We reverse the judgment and remand for further proceedings.

Background

At the time in question McAllister was a uniformed soldier in the United States Army stationed at Fort Drum, New York. At 2:20 a.m. on June 4, 1995, military police officers on the Fort Drum base stopped his vehicle because they observed erratic driving. McAllister, exuding a strong odor of alcohol, failed a field sobriety test and was arrested. At the military police station, McAllister took a "breathalyzer" test and registered a blood alcohol content of .21%, significantly exceeding the legal limit of .1%.

McAllister's case was referred to the United States Attorney for prosecution. A criminal information filed on June 12, 1995, in the United States District Court for the Northern District of New York, charged McAllister with operating a motor vehicle while intoxicated, in violation of 18 U.S.C. § 13, incorporating New York Vehicle Traffic Law §§ 1192(2) and (3).

While these charges were pending, McAllister's military command imposed a series of administrative sanctions. By memorandum dated June 4, 1995, Captain Clayton H. Holt, McAllister's commanding officer, suspended McAllister's on-base driving privileges pending adjudication of the criminal charge. Captain Holt's memorandum went on to state: "If you are found guilty of an intoxicated driving charge, your installation POV driving privileges are automatically revoked for a period of one year from the date of this letter." On July 16, 1995, McAllister received a general letter of reprimand, and an administrative reduction in rank from corporal to specialist. This demotion affected his duties and status, but did not reduce his salary. McAllister also received a "Bar to Re-enlistment Certificate," dated July 26, 1995, indicating that the Army would not allow him to re-enlist at the end of his tour of duty. ¹ No court martial was convened with respect to McAllister's offense. See 10 U.S.C. § 816.

McAllister was arraigned in the district court on the criminal charge on August 16, 1995. He pleaded not guilty and moved to dismiss the information on the ground that the sanctions already imposed on him constituted punishment under the Double Jeopardy Clause and therefore barred further proceedings against him. In March 1996, Magistrate Judge Scanlon granted McAllister's motion to dismiss, ruling that the administrative actions taken against McAllister "were sufficiently grave and onerous to constitute a punishment barring further punishment for the same offense." (emphasis on original).

On appeal, the district court affirmed, holding that the suspension of driving privileges was "dispositively punitive." Although the court suggested that the reduction in rank and bar to re-enlistment were probably also punitive, it declined to rule on these issues in light of its conclusion that suspension of driving privileges was punishment.

This appeal followed.

Discussion

The double jeopardy clause prohibits a second prosecution for the same offense after an acquittal or a conviction, and also prohibits multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The district court found that McAllister's earlier administrative punishment precludes additional punishment and therefore bars a trial. On appeal, the government argues that (1) the discipline imposed by the Army on McAllister was remedial rather than punitive and (2) employer sanctions of the type imposed on McAllister are not "punishment" within the double jeopardy clause.

In holding that sanctions imposed by the military on McAllister constituted prior punishment, the district court relied on language in United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989), where the Supreme Court stated that a civil penalty may constitute punishment for double jeopardy purposes if it is intended to achieve "punitive" goals such as retribution or deterrence. The Supreme Court explained that if a "civil sanction ... cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes," it "is punishment, as we have come to understand the term." Id. at 448, 109 S.Ct. at 1902. Following this explanation, the district court found that the suspension of McAllister's driving privileges was intended "not solely for remedial purposes, but to serve the goals of punishment, retribution and deterrence," and therefore concluded was punishment.

In light of the Supreme Court's recent discussion of the Double Jeopardy Clause in United States v. Ursery, --- U.S. ----, ---- - ----, 116 S.Ct. 2135, 2144-47, 135 L.Ed.2d 549 (1996), we question whether the district court properly applied Halper. In Ursery, the Court described the language in Halper on which the district court relied as "dictum." --- U.S. at ---- n. 2, 116 S.Ct. at 2145 n. 2. It also made clear that sanctions having punitive and deterrent elements are not necessarily punishment within the meaning of the Double Jeopardy Clause. Id. at ---- - ----, 116 S.Ct. at 2148-9. The district court, in its literal application of the dictum in Halper, assumed that a sanction having any punitive or deterrent element necessarily amounts to "punishment" under the Double Jeopardy Clause. The reasoning of Ursery appears to contradict this assumption.

Furthermore, the language in Halper upon which the district court relied appears to be contradicted by the sentence immediately following it. The sentence cited by the district court can be read to suggest that a civil sanction shall be deemed a criminal punishment for double jeopardy purposes if it "cannot fairly be said solely to serve a remedial purpose"--i.e., if it has some retributive or deterrent purpose in addition to its remedial goal. The next sentence,...