U.S. v. Santosdedios
| Decision Date | 31 December 2002 |
| Docket Number | No. CR. 02-2812M.,CR. 02-2812M. |
| Citation | 240 F.Supp.2d 414 |
| Parties | UNITED STATES of America, v. Rebecca SANTOSDEDIOS, Defendant. |
| Court | U.S. District Court — District of Maryland |
Albert T. Gombis, Captain, USAF, Special Assistant United States Attorney, Andrews Air Force Base.
Carrie H. Corcoran, Esquire, Assistant Federal Public Defender, Office of the Federal Public Defender, Baltimore.
Rebecca Santosdedios ("Defendant") has been charged by criminal complaint with one count of theft of government property, in violation of 18 U.S.C. § 641. The Court now has before it Defendant's Motion to Dismiss and the Government's Response in Opposition to Defendant's Motion to Dismiss. ("Defendant's Motion") ("Government's Opposition"). No hearing is deemed necessary. Local Rule 105.6 (D.Md.). For the reasons presented below, the Court hereby DENIES Defendant's Motion.
I. Background
At issue in this case is whether the Double Jeopardy Clause is violated when an individual is prosecuted for theft of government property after having paid a statutory penalty arising out of the same conduct under the AAFES civil recovery program. The Government alleges that on or about August 19, 2002, at the Andrews Air Force Base Main Exchange ("Main Exchange"), Defendant attempted to steal two tubes of lipstick. On October 7, 2002, the store manager of the Main Exchange wrote Defendant a letter stating, in part:
This Exchange has a report showing that on 19 August 2002 you were detained for taking two Loreal Lipsticks without permission and without rendering proper payment for the items. Federal law authorizes [Army and Air Force Exchange Service] AAFES to demand in writing that you pay the following actual and administrative costs relate (sic) to shoplifting, theft detection, and theft prevention.... This letter serves as notice that if you fail to pay your debt within 60 days of this notification, AAFES will take the following actions as appropriate:
a. Assess interest and penalties under the provisions of 31 U.S.C. [§] 3717....
b. Disclose your indebtedness to a consumer-reporting agency under the provisions of 31 U.S.C. [§] 3711....
c. Initiate collection action of this indebtedness through salary offset as authorized ... under provisions of 5 U.S.C. [§]5514....
d. Initiate action to offset the amount of your debt against any disbursement of the Department of Treasury to which you may be entitled, to include offset against Federal income tax returns....
Your check cashing and DPP privileges have been suspended. If you voluntarily pay the Civil Recovery amount listed above within 60 days from the date of this notice, these privileges will be reinstated provided there are not other delinquent debts. Amounts not paid within 30 days from this notice will be reported to the Unit Commander. These civil proceedings do not prevent criminal prosecution for the alleged act of shoplifting.
Defendant's Motion ex. A.
The actual amount demanded from Defendant was "$7.28, which represents the full retail price of the recovered property that is not in salable condition" plus $200 in actual and administrative costs. Id. The store manager's letter also informed Defendant that should she "disagree with this demand, or believe that all or part of this debt is not valid or legally enforceable" that she could contest the demand by contacting the Main Exchange's General Manager. Id. Defendant did not dispute the claim, but instead paid $207.28 to the Main Exchange. Defendant's Motion.
Pursuant to the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST, amend. V. The United States Supreme Court has held that the Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. See United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), rev'd on other grounds, (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), rev'd on other grounds); See also United States v. Ursery, 518 U.S. 267, 273, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). The first two protections under the Double Jeopardy Clause are clearly inapplicable to the instant case because Defendant is not facing a second prosecution after a prior conviction or acquittal. Defendant relies upon the third prong for her motion to dismiss.
There are two steps that the Supreme Court considers to determine whether a statutory penalty amounts to a criminal sanction. First, the Court determines whether the legislature "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or another." United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). Second, even where a criminal penalty was not the legislature's intent, a further inquiry must be made as to whether the statute's purpose or effect in fact "transform[s] what was clearly intended as a civil remedy into a criminal penalty." Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (quoting Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 100 L.Ed. 149 (1956)).
The AAFES civil recovery program was instituted under the authority granted to government agencies to collect debts pursuant to the Federal Claims Collection Act of 1966, Pub.L. No. 89-508, 80 Stat. 308, as amended by the Debt Collections Act of 1982, Pub L. No. 97-365, 96 Stat. 1758, and the Debt Collection Improvement Act of 1996, Pub.L. No. 104-134, § 31001, 110 Stat. 1321, and further amended in 2001 by Pub.L. No. 107-107, § 335, which are codified at 31 U.S.C. § 3701, et seq. Asserting that the debt collected under 31 U.S.C. § 3701(b)(1)(B) establishes a criminal sanction, which she has paid, Defendant argues that her subsequent prosecution under 18 U.S.C. § 641 violates the Double Jeopardy Clause. Defendant's Motion at 2.
This Court finds no evidence that Congress' intent was to provide anything other than civil measures that the Federal government could use to collect debts. First, the Main Exchange's demand letter was issued pursuant to a grant of authority under 31 U.S.C. § 3711, which provides, in part, that: "The head of an executive, judicial, or legislative agency—(1) shall try to collect a claim of the United States Government for money or property arising out of the activities of, or referred to, the agency." 31 U.S.C. § 3711(a)(1). Conferring such authority to administrative agencies "is prima facie evidence that Congress intended to provide for a civil sanction." Hudson, 522 U.S. at 103, 118 S.Ct. 488. This placement of the collection authority with the head of an agency is persuasive evidence, notwithstanding that one of the agencies is the judiciary, because such authority was not granted to be enforced "by a judicial trial." Id. (citing Wong Wing v. United States, 163 U.S. 228, 235, 16 S.Ct. 977, 41 L.Ed. 140 (1896)) ( that the quintessential criminal punishments may be imposed only "by a judicial trial").
The purpose of this statutory scheme was to provide the government with additional means of collecting amounts due to it. Notably, 31 U.S.C. § 3711 does not provide for criminal prosecution or restrictions on life or liberty at all.1 The language of the statute and its stated purpose clearly imply that Congress intended to employ civil measures to collect debts due to the Federal government. Defendant argues that because Congress did not label the monetary penalty as "civil" or "criminal" in nature, this Court must apply a rule of lenity and resolve the alleged ambiguity in favor of Defendant. Defendant's Motion at 3. On the contrary, the Fourth Circuit Court of Appeals has not applied a rule of lenity where the moving party has failed to show that a civil statute was punitive in nature. See Brewer v. Kimel, 256 F.3d 222, 228 (4th Cir.2001) (). Here, Defendant has failed to show that the present statute is criminal in nature or that a rule of lenity should be invoked to direct a similar result.
Even where legislative intent indicates that a sanction is not a criminal punishment, Double Jeopardy analysis requires that the Court consider whether "the form and effect" of the civil sanction renders it "criminal despite Congress' intent to the contrary." Hudson, 522 U.S. at 104, 118 S.Ct. 488. The form and effect must be assessed under the seven guideposts set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), and reiterated in Hudson, used to determine whether a sanction is criminal: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishmentretribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Hudson, 522 U.S. at 99,118 S.Ct. 488. In disavowing the approach employed in U.S. v. Halper2 and...
To continue reading
Request your trial