U.S. v. Newby

• Citation: 11 F.3d 1143
• Decision Date: 29 December 1993
• Docket Number: Nos. 92-5711,No. 92-5712,92-5712,No. 92-5711,92-5711,s. 92-5711
• Parties: UNITED STATES of America v. Gene Francis NEWBY and Raynaldo Barber. Gene Francis Newby (Appellant in). Raynaldo Barber (Appellant in).
• Court: U.S. Court of Appeals — Third Circuit

Page 1143

11 F.3d 1143

UNITED STATES of America v. Gene Francis NEWBY and Raynaldo Barber.

Gene Francis Newby (Appellant in No. 92-5711).

Raynaldo Barber (Appellant in No. 92-5712).

Nos. 92-5711, 92-5712.

United States Court of Appeals, Third Circuit.

Argued Oct. 5, 1993.

Decided Nov. 30, 1993.

Sur Petition for Rehearing Dec. 29, 1993.

John F. McMahon (argued), Federal Public Defender, Newark, NJ, for appellant Gene Francis Newby.

Timothy P. Reilly (argued), Audubon, NJ, for appellant Raynaldo Barber.

Michael Chertoff, U.S. Atty., Edna B. Axelrod (argued), R. David Walk, Jr., Asst. U.S. Attys., Newark, NJ, for appellee.

Before: HUTCHINSON, COWEN and NYGAARD, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

Gene Francis Newby and Raynaldo Barber appealed from the sentences imposed by the district court as well as the underlying judgments convicting them of knowingly and willfully impeding and interfering with a federal prison guard in violation of 18 U.S.C. Sec. 111(a)(1). Barber was also convicted of assaulting a federal prison guard in violation of section 111(a)(1). We conclude that the district court did not err and will affirm both the judgments of conviction and the sentences imposed.

I.

While serving sentences in a federal prison, Newby and Barber engaged in an altercation with several prison guards. The prison authorities brought disciplinary charges against them for using intoxicants and assaulting prison guards in violation of prison rules. Following a hearing at the prison charging Newby and Barber solely with violating prison disciplinary regulations, both defendants were found to have violated the regulations. By reason of that violation of prison regulations, the prison authorities imposed on both a disciplinary transfer and segregation. In addition, Newby was deprived of one thousand days good time credits which he had previously earned for good conduct in the prison, while Barber was deprived of fifty-four days good time credits.

The United States subsequently indicted the defendants for the exact same conduct for which the prison disciplinary sanction was imposed, charging them with knowingly and willfully assaulting, impeding, and interfering with a federal prison guard, in violation of 18 U.S.C. Sec. 111(a)(1). Both defendants moved to dismiss the indictment on double jeopardy grounds, contending that the prison disciplinary sanctions they received barred the criminal prosecution. The district court denied the application to dismiss.

Following a jury trial, Barber was convicted as charged, and Newby was convicted of impeding and interfering with, but not of assaulting, a federal prison guard. From the judgments of conviction, Newby and Barber bring these appeals, and also present a challenge to the sentences imposed. The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction under 28 U.S.C. Sec. 1291.

II.

Both Newby and Barber argue that prosecuting them criminally, after they had been deprived of their good time credits through the prison disciplinary sanctions, violated the Double Jeopardy Clause of the Fifth Amendment to the Constitution. This presents a matter of constitutional interpretation for which we exercise plenary review. See United States v. Ciancaglini, 858 F.2d 923, 926 (3d Cir.1988).

We conclude that the defendants' argument lacks merit. We, as well as other courts, have held that a prison disciplinary hearing is not a prosecution for Double Jeopardy Clause purposes. Disciplinary sanctions imposed by prison authorities for infractions of prison regulations do not bar a subsequent criminal prosecution. United States v. Stuckey, 441 F.2d 1104 (3d Cir.) (per curiam), cert. denied, 404 U.S. 841, 92 S.Ct. 136, 30 L.Ed.2d 76 (1971); United States v. Rising, 867 F.2d 1255, 1259 (10th Cir.1989) ("administrative punishment imposed In Stuckey, the defendant was charged with violating a prison regulation forbidding the possession of a "knife-like" instrument. Following a hearing at which he was found to have violated the regulation, Stuckey was placed in a segregation unit for 15 days. Subsequent to this prison disciplinary sanction, he was criminally charged and convicted of possessing the same instrument. Stuckey, 441 F.2d at 1105. Stuckey argued that the Double Jeopardy Clause barred the criminal prosecution. In a per curiam opinion, this Court held that "[a]dministrative 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." Id. at 1105-06.

by prison officials does not render a subsequent judicial proceeding, criminal in nature, violative of the double jeopardy clause"); Kerns v. Parratt, 672 F.2d 690 (8th Cir.1982) (administrative sanction through loss of good time does not bar subsequent criminal prosecution).

The rationale for this rule is that the prison disciplinary proceeding is one to determine whether prison rules are broken and to maintain institutional order, rather than a prosecution for criminal conduct. The forfeiture of good time credits is not in any sense dependent upon whether the misconduct also may be criminal. Pagliaro v. Cox, 143 F.2d 900, 901 (8th Cir.1944).

Defendants have not presented any argument which affords them relief from the holding of Stuckey. Nor do the cited Supreme Court cases help them. Defendants rely upon United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). In Halper, the Supreme Court held that a civil penalty, imposed after a criminal penalty, if so grossly disproportionate to the harm caused or "so divorced from any remedial goal," id. at 443, 109 S.Ct. at 1899, can constitute a second punishment under the Double Jeopardy Clause. Id. at 446-51, 109 S.Ct. at 1901-03. The matter sub judice appears to be the reverse of Halper. We are asked to conclude that a civil penalty imposed before a criminal prosecution bars criminal prosecution, while Halper addressed the question whether a criminal penalty bars a civil penalty imposed subsequent to the criminal penalty.

Assuming that Halper applies to this case, we do not conclude that the facts in this case demonstrate that the prison disciplinary sanctions imposed on Newby and Barber are so grossly unrelated to prison authorities' remedial goal so as to constitute a "punishment" within the meaning of the Double Jeopardy Clause. The loss of one thousand days good time credits by defendant Newby, fifty-four days by Barber, and the disciplinary transfer and segregation for both, are not "so divorced from the remedial goal," id. at 443, 109 S.Ct. at 1899, of the government to encourage good conduct and to maintain order in the prison, given that the prison is a place where good order and discipline are paramount because of the concentration of convicted criminals. Good time credits are granted to reward good behavior and they are conditioned upon continuing good behavior. ¹ The authorities' ability to revoke them is designed to encourage the inmates to continue their good conduct and, thus, is rationally related to the remedial goal.

Newby's loss of one thousand days good time credits may at first glance appear to be harsh; however, on examination it is necessary in order to bring home to him and others the importance of continued good behavior. A lesser sanction may have no effect on him, bearing in mind that he violently impeded and interfered with the prison guards. We are satisfied that the prison disciplinary hearing officer made a considered decision and properly concluded that this was a reasonable and necessary sanction.

In considering what is necessary and proper to preserve institutional order and discipline, and to encourage good conduct, we defer to the judgment of the prison authorities. As the Supreme Court instructed, the adoption and execution of policies and practices necessary to preserve internal order and discipline, and to maintain institutional security in the prison are "peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response[,] courts should ordinarily defer to their expert judgment in such matters." Bell v. Wolfish, 441 U.S. 520, 548, 99 S.Ct. 1861, 1878-79, 60 L.Ed.2d 447 (1979) (internal quotation marks and citations omitted). See also O'Lone v. Estate of Shabazz, 482 U.S. 342, 349-50, 107 S.Ct. 2400, 2404-05, 96 L.Ed.2d 282 (1987) ("evaluation of penological objectives is committed to the considered judgment of prison administrators," whose decisions are "judged under a 'reasonableness' test less restrictive than that ordinarily applied" in order to "avoid[ ] unnecessary intrusion of the judiciary into problems particularly ill suited to 'resolution by decree' ").

Nor do we find United States v. Dixon, --- U.S. ----, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), holding that criminal contempt sanctions enforced through nonsummary proceedings bar subsequent criminal prosecution under substantive criminal law, of help to the defendants. Most important, in Dixon the defendant was first punished for criminal contempt which, when enforced through nonsummary proceedings, is a "crime in the ordinary sense," id. at ----, 113 S.Ct. at 2856, before the government attempted to prosecute him again under the substantive criminal law. The case does not address the issue presented here of whether civil prison disciplinary sanctions would prohibit subsequent criminal prosecution. Accordingly, Dixon has no application in this case.

We do not believe that the Double Jeopardy Clause was ever intended to inhibit prison discipline. Were we to accept the defendants' argument, we would hamper the ability of the prison authorities to administer the prisons. If a prison disciplinary sanction bars subsequent...