U.S. v. Stoller

• Decision Date: 12 January 1996
• Docket Number: No. 95-2175,95-2175
• Citation: 78 F.3d 710
• Parties: UNITED STATES of America, Appellee, v. Robert S. STOLLER, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 710

78 F.3d 710

64 USLW 2567

UNITED STATES of America, Appellee, v.Robert S. STOLLER, Defendant, Appellant.

No. 95-2175.

United States Court of Appeals First Circuit.

Heard Jan. 12, 1996.

Decided Feb. 29, 1996.

Appeal from the United States District Court for the District of Massachusetts; William G. Young, Judge.

John A. MacFadyen, Providence, RI, with whom Richard M. Egbert, Boston, MA, was on brief, for appellant.

Anita S. Lichtblau, Trial Attorney, United States Dept. of Justice, Boston, MA, with whom Donald K. Stern, United States Attorney, Boston, MA, and Mark D. Seltzer, Director, New England Bank Fraud Task Force, Philadelphia, PA, were on brief, for U.S.

Before SELYA, Circuit Judge, ALDRICH and COFFIN, Senior Circuit Judges.

SELYA, Circuit Judge.

This appeal requires us to explore a shadowy corner of the Double Jeopardy Clause, dimly lit by a trilogy of recent Supreme Courtcases.Concluding, as we do, that an administrative sanction imposed by the Federal Deposit Insurance Corporation(FDIC) does not comprise "punishment" within the purview of the Clause, we uphold the district court's denial of a motion to dismiss criminal charges later lodged against the same individual.

I.BACKGROUND

Following chronological order, we recount the details of the administrative proceeding and then discuss the criminal case.

A.The Administrative Proceeding.

From 1975 to 1990, defendant-appellantRobert S. Stoller toiled as the chief executive officer of the Coolidge Corner Cooperative Bank (the Bank).In 1986, the Bank became federally insured.Thereafter, Stoller caused it to make loans to several real estate trusts with which he was affiliated.The loans soured and the Bank sustained heavy losses.

In 1990, the FDIC instituted a debarment proceeding against Stoller.The FDIC charged, and an administrative law judge (ALJ) found, that the Bank underwrote the suspect loans without appropriate disclosure and in violation of Regulation O, 12 C.F.R. § 215(a rule that caps the amount of credit a federally insured institution may extend to insiders and imposes lending limits on other extensions of credit).The ALJ concluded that Stoller's transgressions demonstrated a willful and persistent disregard for the Bank's soundness, and therefore warranted an order of proscription under 12 U.S.C § 1818(e).¹On administrative review, the FDIC's board of directors (the Board) affirmed the ALJ's factual determinations and approved his recommended order.Stoller requested reconsideration and clarification.On September 22, 1992, the Board issued a revised decision upholding the debarment order in slightly altered form: in its final version, the order prevents Stoller (who is an attorney) from serving as an officer or director of, exercising control over, or acting as counsel to, any federally insured financial institution.

B.The Criminal Case.

In January 1995, a federal grand jury indicted Stoller for divers violations of federal banking laws, including nine counts of misapplying bank funds, see18 U.S.C. § 656; thirty-one counts of unlawfully receiving loan-procurement commissions, seeid.§ 215; and eight counts of making false entries, seeid.§ 1005.Stoller promptly moved to dismiss the first nine counts of the indictment on double jeopardy grounds.The district court denied the motion, concluding that the debarment order did not constitute punishment in the relevant constitutional sense.SeeUnited States v. Stoller, 906 F.Supp. 39(D.Mass.1995).This appeal followed.

II.APPELLATE JURISDICTION

As a general rule, federal appellate courts have jurisdiction only over final orders and judgments of district courts, and not over interlocutory decisions.See28 U.S.C. § 1291.In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651(1977), the Supreme Court carved an exception to this rule for pretrial refusals to dismiss criminal charges on double jeopardy grounds.Emphasizing that the Double Jeopardy Clause is a "guarantee against being twice put to trial for the same offense,"id. at 661, 97 S.Ct. at 2041, the Court held that "pretrial orders rejecting claims of former jeopardy ... constitute 'final decisions' and thus satisfy the jurisdictional prerequisites of § 1291,"id. at 662, 97 S.Ct. at 2042.

It is possible to read too much into Abney.The Double Jeopardy Clause states that no person "shall ... be subject for the same offence to be twice put in jeopardy of life or limb."U.S. Const.amend. V.This protection is threefold: "it safeguards an individual against (1) a second prosecution for the same offense, following an acquittal; (2) a second prosecution for the same offense, following a conviction; and (3) multiple punishments for the same offense."United States v. Rivera-Martinez, 931 F.2d 148, 152(1st Cir.), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145(1991).Abney spoke to a situation involving multiple prosecutions.Cases that involve multiple punishments arguably raise different jurisdictional concerns for appellate courts.

In United States v. Ramirez-Burgos, 44 F.3d 17(1st Cir.1995), this court dismissed an interlocutory appeal stemming from the rejection of a multiple punishments claim asserted in connection with parallel counts contained in a single indictment.Seeid. at 18.We ruled that the defendant's right not to be punished twice could be vindicated adequately through a subsequent, end-of-case appeal, and distinguished those interlocutory double jeopardy appeals (like Abney ) that demand final resolution prior to trial because the defendant advances a claim alleging impermissible multiple prosecutions.Seeid. at 18-19.

Stoller's case falls somewhere between Abney and Ramirez-Burgos.Unlike in Abney, his double jeopardy claim rests on the prospect of multiple punishments rather than the fear of multiple prosecutions.Unlike in Ramirez-Burgos, however, the alleged multiple punishments arise in the course of two separate and successive proceedings rather than within a single proceeding.To complicate matters further, the fate of Ramirez-Burgos is uncertain in light of the Supreme Court's recent decision in Witte v. United States, --- U.S. ----, 115 S.Ct. 2199, 132 L.Ed.2d 351(1995).²Although Witte and Ramirez-Burgos can perhaps be reconciled, the most obvious basis for harmonizing them--the number of proceedings involved--would, if accepted, remove this appeal from the reach of Ramirez-Burgos.Moreover, at least one circuit has observed that, under Witte, all double jeopardy appeals that raise nonfrivolous multiple punishments arguments must now be considered ripe for immediate review.SeeUnited States v. Baird, 63 F.3d 1213, 1215 & n. 4(3d Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 909, 133 L.Ed.2d 841(1996).

We elect to detour around this Serbonian bog.It is a familiar tenet that when an appeal presents a jurisdictional quandary, yet the merits of the underlying issue, if reached, will in any event be resolved in favor of the party challenging the court's jurisdiction, then the court may forsake the jurisdictional riddle and simply dispose of the appeal on the merits.SeeNorton v. Mathews, 427 U.S. 524, 530-31, 96 S.Ct. 2771, 2774-75, 49 L.Ed.2d 672(1976);Secretary of the Navy v. Avrech, 418 U.S. 676, 677-78, 94 S.Ct. 3039, 3039-40, 41 L.Ed.2d 1033(1974)(per curiam);United States v. Saccoccia, 58 F.3d 754, 767 n. 6(1st Cir.1995);United States v. Connell, 6 F.3d 27, 29 n. 3(1st Cir.1993).We follow that course, leaving for another day the questions surrounding the continued vitality of Ramirez-Burgos.

III.THE DOUBLE JEOPARDY CLAIM

We confine our discussion to the branch of the Double Jeopardy Clause that embodies the constitutional protection against multiple punishments.³Though our analysis proceeds in three segments, we pause at the brink to acknowledge a few well-established principles.

First, though former jeopardy is a criminal law concept, it is by now settled that, if other conditions are met, either criminal prosecutions or civil proceedings instituted by the same sovereign may result in punishment sufficient to implicate the Double Jeopardy Clause.SeeUnited States v. Halper, 490 U.S. 435, 443, 109 S.Ct. 1892, 1899, 104 L.Ed.2d 487(1989).Second, not all civil sanctions constitute cognizable punishment.To separate wheat from chaff, an inquiring court must scrutinize a civil sanction objectively rather than subjectively for, from the defendant's standpoint, "even remedial sanctions carry the sting of punishment."Id. at 447 n. 7, 109 S.Ct. at 1901 n. 7.Third, as long as a civil sanction constitutes punishment in the relevant sense, it does not matter if the "multiple" punishment--presumably a criminal sentence--precedes the attempt to impose the sanction, or conversely, if the sanction precedes the attempt to convict the defendant.Notwithstanding the difference in sequence, the Double Jeopardy Clause reaches both situations.SeeUnited States v. Hudson, 14 F.3d 536, 540(10th Cir.1994);United States v. Reed, 937 F.2d 575, 577 n. 3(11th Cir.1991).

These principles help courts to solve the routine questions that are posed when civil sanctions are alleged to run afoul of the Double Jeopardy Clause.Nevertheless, when a court confronts the task of determining the status of a particular civil penalty under double jeopardy analysis, extremely sophisticated questions can sometimes arise.The answers to those questions may depend on the trilogy of Supreme Courtcases to which we now repair.

A.The Trilogy.

The seminal case is Halper.There the government successfully prosecuted criminal charges against a physician who, it asserted, had defrauded the federal Medicare program on sixty-five separate occasions.The judge imposed a prison sentence and a fine.SeeHalper, 490 U.S. at 437, 109 S.Ct. at 1895-96.Thereafter, the government brought a civil suit against Dr. Halper under the False Claims Act,31 U.S.C....