## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 30 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FRANCES L. HOPKINS, personal representative of the estate of ROBERT E. “BOB” HOPKINS, Plaintiff-Appellant, v. OKLAHOMA PUBLIC EMPLOYEES RETIREMENT SYSTEM, sued as State of Oklahoma, ex rel; DON KILPATRICK; JOSEPH CARTER; HOWARD CONYERS; JEAN COULTER; DONALD KEENAN; VAL SCHOTT; W. R. STUBBS; DAVID W. WAY; JOHN M. CRAWFORD; CODY GRAVES; RICHARD HAUGLAND; OSCAR B. JACKSON, JR., and TOM DAXON, in their official capacities as Board Members of the Board of Trustees of the Oklahoma Public Employees Retirement System; STEPHEN C. EDMONDS, Executive Director of the Oklahoma Public Employees Retirement System, in his official capacity, Defendants-Appellees. No. 96-6302

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-96-0441-A)- 2 -

E. Clyde Kirk, Stipe Law Firm, Oklahoma City, Oklah oma, for PlaintiffAppellant. Lisa Tipping Davis, Assistant Attorney General, Okl ahoma City, Oklahoma (Barry K. Koonce, Assistant Attorney General, and L ydia Heimer Lee, General Counsel, Oklahoma Public Employees Retirement Syste m, with her on the brief) for Defendants-Appellees.

Before SEYMOUR, Chief Judge, and EBEL andBRISCOE, Circuit Judges.

EBEL , Circuit Judge.

This case presents the question whether a state’s f orfeiture of more than two-thirds of a retired state employee’s pension, a s a result of the employee’s conviction for bribery after the employee has begun to collect his pension, violates either the Fifth or Eighth Amendments to t he United States Constitution. We hold that the forfeiture is not unconstitutional under the Double Jeopardy Clause because of the doctrine of dual sovereigns, nor is it unconstitutional under the Excessive Fines Clause because, under Oklahoma law, the employee had not acquired a vested property right in the pension.

Background. Robert E. “Bob” Hopkins (“Hopkins”) served for twenty-two years as a1 This statute provides in part: Any elected or appointed state or county officer or (continued...) - 3 - member first of the Oklahoma House of Representativ es and then the Oklahoma Senate. In 1987, Hopkins left the state legislatur e and was sworn in as a member of the Oklahoma Corporation Commission, a statewide elected board that regulates public utilities in Oklahoma. Hopkins re signed his office on August 1, 1991, two years before his six-year term expired. Upon his retirement, the Oklahoma Public Employees Retirement System (“OPERS ”) credited Hopkins with thirty-two years of service, including military service and other prior service, and he began drawing a monthly pension of $4,293.18

. Three years later, on November 30, 1994, Hopkins wa s convicted in federal court under 18 U.S.C. § 666 of accepting a bribe in connection with his vote in 1989 on a matter then being considered by the Corpo ration Commission. Hopkins was sentenced to 33 months in prison, and was order ed to pay fines totaling $71,234. Following his conviction, OPERS notified Hopkins that his pension would be reduced by 70 percent, to $1,281.87 per mo nth. This forfeiture of more than two-thirds of Hopkins’ pension came as a resul t of Okla. Stat. tit. 51, § 24.1(A), which provides for the forfeiture of retir ement benefits when a public employee is convicted of a felony or other offense involving a violation of his oath of office. 1 Hopkins estimated that this reduction resulted in an estimated1 (...continued) employee who, during the term for which he was elec ted or appointed, is, or has been, found guilty by a tr ial court of a felony in a state or federal court of co mpetent jurisdiction . . . shall vacate such office or empl oyment and if such felony or other offense violates his oath of office shall forfeit all benefits of said office or employment, including, but not limited to, retireme nt benefits provided by law; provided however, that su ch forfeiture of retirement benefits shall not include such officer’s or employee’s contributions to the retire ment system or retirement benefits that are vested on th e effective date of this act. Okla. Stat. tit. 51, § 24.1(A). The state’s forfei ture in Mr. Hopkins’ case did not include benefits that vested before the effective d ate of this statute in 1981. The record does not reflect any claim by Mr. Hopkins th at the state’s forfeiture included money he had paid into the pension system. - 4 - loss to him and his wife, based on actuarial projec tions of their life expectancies, of $706,452.85. Hopkins challenged his pension forfeiture with an a dministrative appeal to the OPERS Board of Trustees, but on September 21, 1 995, the trustees upheld the reduction. Hopkins did not appeal the OPERS final decision in Oklahoma state court, as was his right under the Oklahoma Administrative Procedures Act, Okla. Stat. tit. 75, § 318. Instead, Hopkins filed suit in federal court challenging the constitutionality of the state’s pension forfeiture statute because of its alleged violation of the Double Jeopardy and Excessive Fine s Clauses of the Fifth and Eighth Amendments. Suing under 42 U.S.C. § 1983, H opkins sought prospective equitable relief, including a declaration that the pension forfeiture statute is- 5 -

unconstitutional and an injunction against its enfo rcement. Although Hopkins requested his attorneys fees, he did not seek any r etrospective money damages. On a motion from the state, the district court gran ted summary judgment to the defendants and dismissed Hopkins complaint. Th e court found that the pension forfeiture statute did not violate the Doub le Jeopardy Clause of the Fifth Amendment because the underlying bribery prosecutio n against Hopkins was brought by a separate sovereign. See United States v. Lanza , 260 U.S. 377, 382 (1922). The district court also found that the pen sion forfeiture statute did not violate the Excessive Fines Clause of the Eighth Am endment because under Oklahoma law, Hopkins had not acquired a property r ight in his pension benefits. Following the entry of summary judgment, Hopkins fi led a motion for a new trial in which he raised new legal arguments, but the dis trict court refused to consider these new arguments and denied his motion. During the pendency of Hopkins’ appeal before this court, Hopkins died. Although the parties did not inform the court of th e appellant’s death, the court learned of this fact after oral argument, and the c ourt directed the parties to submit supplemental briefs on the question of wheth er Hopkins’ appeal was mooted by his death. Hopkins’ widow, Frances L. Ho pkins, who is the personal representative of his estate, has now moved under F ed. R. App. P. 43(a) to be2 Upon consideration of this motion, the court agrees that under Fed. R.

App. P. 43(a), Frances L. Hopkins, as the personal representative of the state of Robert E. Hopkins, should be substituted as the nam ed party in this appeal. The caption of this appeal has been amended to reflect this decision. - 6 - substituted as the named party in this appeal. 2

Discussion. I. Abatement or survival of Hopkins’ suit. As a preliminary matter, we must determine whether this case has been mooted by Hopkins’ death. Hopkins filed his suit a lleging constitutional claims under 42 U.S.C. § 1983. That statute’s companion p rovision in 42 U.S.C. § 1988(a) provides that the federal courts’ jurisdi ction to decide a section 1983 suit will be governed by applicable state law when there is no controlling federal law on a particular point. See 42 U.S.C. 1988(a). In Robertson v. Wegmann , 436 U.S. 584, 588-90 (1978), the Supreme Court held that in the absence of any federal law controlling the survival and abatement of section 1983 suits, this question would be governed by the local state’s survival and abatement statute, so long as that statute is “not inconsistent with the Constitution and laws of the United States.” See 42 U.S.C. § 1988(a). This court has applied Robertsonto hold that the death of a plaintiff in a First Amend ment suit under section 1983 did not abate the cause of action for the plaintiff’s e state. See Grandbouche v.3 The Oklahoma abatement statute states: No action pending in any court shall abate by the death of either or both the parties thereto, exceptan action for libel, slander or malicious prosecution, which shall abate by the death of the defendant. An acti on for libel, slander or malicious prosecution shall not a bate after a jury verdict or a decision by the court whe re the trial is by the court, unless a new trial is ordere d. Okla. Stat. tit. 12, § 1052. - 7 - Clancy , 825 F.2d 1463, 1465 (10th Cir. 1987) (applying Co lorado’s survival statute); see also Anderson v. Romero , 42 F.3d 1121, 1123-25 (7th Cir. 1994) (holding that a plaintiff’s section 1983 suit alleg ing Eighth Amendment violations by prison officials was not rendered moot as a resu lt of the plaintiff’s death because Illinois law ensured the survival of such asuit). Indeed, we have relied on Robertsonas the basis for applying Oklahoma’s abatement statute, 3 the specific statute at issue in this case, both to abate and to avoid abatement of two federal civil rights suits. See Pietrowski v. Town of Dibble , 134 F.3d 1006, 1008-09 (10th Cir. 1998) (holding that under Oklaho ma law, the plaintiff’s civil rights claim for malicious prosecution would abate upon the death of the defendant); Slade ex rel. Estate of Slade v. United States Postal Serv. , 952 F.2d 357, 360 (10th Cir. 1991) (holding that under Oklah oma law, the plaintiff’s Title VII claim would not abate upon his death). Because Hopkins’ suit alleging double jeopardy and excessive fines4 We note that Mrs. Hopkins’ presence in this case re sults solely from her

role as the personal representative of Mr. Hopkins’ estate. Hopkins’ suit never named his wife as a party, nor did Mrs. Hopkins eve r seek relief for her own property interest in her husband’s pension. See Okla. Stat. tit. 74, § 913.4(F) (establishing that the surviving spouse of a state pension beneficiary is entitled to 50 percent of the pensioner’s benefit). Thus, eve n though Mrs. Hopkins might have had standing to assert her own claim in her hu sband’s suit, at this stage in the litigation, Mrs. Hopkins is only nominally a pa rty in this case. Any relief that might have resulted from this suit would have flowe d to Mr. Hopkins’ estate, not to Mrs. Hopkins personally. - 8 - violations does not constitute a claim for slander, libel or malicious prosecution, Oklahoma law calls for the survival of his suit des pite his death. See Okla. Stat. tit. 12, § 1052. Thus, we conclude that Hopkins’ s uit does not abate upon his death. Because a live case or controversy continue s to exist between Hopkins’ estate and the defendants, this case is not moot. 4 See Phelps v. Hamilton , 122 F.3d 1309, 1326 (10th Cir. 1997) (“The central ques tion in determining whether a case has become moot is whether ‘the issues present ed are no longer “live” or the parties lack a legally cognizable interest in the o utcome.’”) (quoting Powell v. McCormack , 395 U.S. 486, 496 (1969)); see also Erwin Chemerinsky, Federal Jurisdiction , § 2.5.1, at 125 (2d ed. 1994) (noting that a civi l case is not moot under Article III even though the plaintiff has die d as long as the plaintiff’s cause of action survives his death).- 9 - II. Exhaustion of Hopkins’ claims. A second jurisdictional issue in this case is the s tate’s claim that Oklahoma’s state-law exhaustion requirements for ch allenges against decisions by state administrative agencies creates a bar to our federal jurisdiction over Hopkins’ federal constitutional claims. The state relies on Oklahoma case law that appears to require all challenges against stat e administrative action to be pursued through the judicial review provisions of the Oklahoma Administrative Procedures Act, Okla. Stat. tit. 75, § 318. See Martin v. Harrah Indep. Sch. Dist. , 543 P.2d 1370, 1372 (Okla. 1976). But see id. at 1375-76 (noting that exhaustion is not required for suits under 42 U.S.C. § 1983 be cause “[r]elief under the Civil Rights Act provides a supplemental remedy to any st ate remedy and relief under the act may not be defeated because of failure to e xhaust administrative remedies provided under state law”). The state’s argument is unavailing because it is mo re than well-settled that a plaintiff under 42 U.S.C. § 1983 need not exhausthis administrative remedies before filing suit in federal court. See Patsy v. Board of Regents , 457 U.S. 496, 516 (1982); Brown v. Hartshorne Pub. Sch. Dist. No. 1 , 864 F.2d 680, 683 (10th Cir. 1988) (reinstating a section 1983 suit that ha d been dismissed for failure to exhaust administrative exhaustion). Furthermore, w e note that Oklahoma’s administrative exhaustion doctrine applies only whe n a litigant seeks “review of- 10 -

agency decisions.” See Johnson v. Board of Governors of Registered Dentis ts , 913 P.2d 1339, 1343 (Okla. 1996). Hopkins’ suit he re, however, is not properly characterized as a review of an agency decision. H opkins has not contested the correctness, in light of Oklahoma’s pension forfeiture statute, of the reduction in his pension benefits. Instead, Hopkins is challeng ing the constitutionality of the pension forfeiture statute itself. This challenge does not involve a review of the arbitrariness or capriciousness of OPERS’s administrative decision under the Oklahoma Administrative Procedures Act, Okla. Stat. tit. 75, § 322(1). Thus, regardless of Oklahoma’s provisions for administrat ive review, we have jurisdiction over this federal civil rights suit.

III. Hopkins’ constitutional claims. Turning to the merits of Hopkins’ case, we note that in light of the lack of any dispute over the facts in this case we exercise de novo review of the district court’s determination of the constitutional issues here. See Villanueva v. Carere , 85 F.3d 481, 487 (10th Cir. 1996). Of course, as this case challenges the constitutionality of a state statute, we are constr ained by the “venerable presumption” that an act of a state legislature is generally taken to be constitutional, and the burden is on the plaintiff to demonstrate how the statute transgresses the requirements of the United States Constitution. See id.- 11 - A. Double jeopardy. The first challenge Hopkins raises against Oklahoma ’s reduction of his pension benefits involves his claim that Oklahoma’s pension forfeiture statute violates the Double Jeopardy Clause of the Fifth Am endment. Under the Fifth Amendment, no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. For more than a century, the Double Jeopardy Clause has been interpreted as inap plicable in those situations where two separate sovereigns prosecute the same of fence. See Moore v. Illinois , 55 U.S. (14 How.) 13, 19 (1852). “[A]n act denounc ed as a crime by both national and state sovereignties is an offense agai nst the peace and dignity of both and may be punished by each.” United States v. Lan za , 260 U.S. 377, 382 (1922) (upholding a federal prosecution under federal Proh ibition laws after an earlier conviction for the same conduct under state law). Under this dual-sovereigns doctrine, the crucial qu estion is whether the two proceedings against a litigant can be characterized as emanating from “distinct sources of power.” See Heath v. Alabama , 474 U.S. 82, 88 (1985). The Supreme Court has been unwavering in its conclusion that wh en the two “sources of power” at issue in a double jeopardy claim are the federal government and a state government, then the dual-sovereigns doctrine appli es and there is no double jeopardy in the second prosecution. See United States v. Wheeler , 435 U.S. 313,5 Hopkins did not raise this argument based on Bartku s until after the

district court ruled on the defendants’ summary jud gment motion. Normally, we would not consider a newly raised argument on appea l when it was not properly raised below. See Walker v. Mather , 959 F.2d 894, 896 (10th Cir. 1992). However, we will consider Hopkins’ arguments on the “sham prosecution” exception to the dual-sovereigns doctrine because H opkins appears not to have had an opportunity to address the state’s argument on this issue before the district court rendered its decision. The state’s motion for summary raised only two grou nds for dismissing Hopkins’ suit: the failure to exhaust state-law rem edies and the contention that (continued...) - 12 - 316-17 & n.7 (1978). As the Court explained, “a fe deral prosecution does not bar a subsequent state prosecution of the same person f or the same acts, and a state prosecution does not bar a federal one.” Id. at 317 n.7. In Hopkins’ case, his first prosecution was in fede ral court for violation of the federal bribery law under 18 U.S.C. § 666. The second proceeding against Hopkins was before the Oklahoma pension board underOklahoma’s pension forfeiture statute, Okla. Stat. tit 51, § 24.1(A). It is beyond doubt, therefore, that the “authority to punish” Hopkins in these two proc eedings emanated from two “distinct sources of power.” See Heath , 474 U.S. at 88. As result, Oklahoma’s reduction in Hopkins’ pension benefits does not vio late the Double Jeopardy Clause. Despite this conclusion, Hopkins argues that the du al-sovereigns doctrine does not apply in his case because of the “sham pro secution” exception under Bartkus v. Illinois , 359 U.S. 121 (1959). 5 In Bartkus , the Court held that an5 (...continued)

Oklahoma’s pension forfeiture statute did not impos e a “punishment” under the Double Jeopardy Clause. Only after Hopkins’ filed his opposition to the state’s motion for summary judgment did the state raise the new argument that there was no double jeopardy in this case because of the dual -sovereigns doctrine. In light of this posture, we believe it is appropriate to co nsider Hopkins’ argument that the dual-sovereigns doctrine is inapplicable. - 13 - Illinois prosecution of the defendant under a state robbery statute was not barred by the Double Jeopardy Clause in light of the defen dant’s earlier acquittal in federal court on a federal bank robbery charge base d on the same course of conduct. Id. at 121-22, 139. In the course of explaining this decision, the Court rejected arguments that the Illinois prosecution wa s “merely a tool” by federal prosecutors to overcome the defeat they had suffere d in the federal prosecution.
See id. at 123. The court said the evidence failed to sus tain any conclusion that “the state prosecution was a sham and a cover for afederal prosecution.” Id. at 124. The Tenth Circuit has interpreted this discussion o f a “sham” prosecution in Bartkus as suggesting a possible exception to the dual-sov ereigns doctrine under the Double Jeopardy Clause. See United States v. Raymer , 941 F.2d 1031, 1037 (10th Cir. 1991) (citing United States v. Bernhardt , 831 F.2d 181 (9th Cir. 1987)); see also United States v. Guzman , 85 F.3d 823, 826-27 (1st Cir. 1996) (noting that the Bartkus suggestion of a “sham prosecution” exception has b een adopted in the D.C., First, Second, Fourth, Sixth, Ninth, a nd Tenth Circuits). But see- 14 -

United States v. Brocksmith , 991 F.2d 1363, 1366 (7th Cir. 1993) (questioning whether Bartkus actually recognized an exception to the dual-sover eigns doctrine). In Raymer , this court held that the defendant had failed to present sufficient evidence to show that a federal drug pro secution against the defendant was a “sham” or “cover” for an aborted state prosec ution. See Raymer , 991 F.2d at 1039. Under Raymer , a defendant must meet a very high evidentiary bur den to establish the “sham prosecution” exception -- the d efendant must show that “one sovereign is so dominated by the actions of the oth er that the former is not acting of its own volition.” Id. at 1037. Hopkins argues that the “sham prosecution” exceptio n applies in his case because Oklahoma could not have prosecuted him for bribery under state law in light of the state statute of limitations and becau se Oklahoma’s pension forfeiture statute merely piggy-backs on top of a federal pros ecution. These arguments, however, do not come close to meeting the “substant ial burden” on Hopkins to show that Oklahoma’s attempt to forfeit his pensionwas “so dominated” by the actions of federal prosecutors that Oklahoma offici als were not acting of their own volition. See Raymer , 991 F.2d at 1037. Indeed, the only evidence in t he record indicating contact between federal prosecuto rs and Oklahoma pension officials is a letter from the United States Attorn ey for the Northern District of Texas notifying OPERS that Hopkins had been convict ed in federal court. As a6 As a result of our conclusion that the dual-soverei gns doctrine applies in

Hopkins’ case, we do not reach Hopkins’ other argum ent that forfeiture of his pension is a “punishment” subject to the Double Jeo pardy Clause. - 15 - result, we conclude that there is insufficient evid ence to sustain a claim of “sham prosecution” in Hopkins’ case. Thus, the dual-sove reigns doctrine applies here, and Oklahoma’s forfeiture of Hopkins’ pension is no t barred by the Double Jeopardy Clause. 6
B. Excessive fines. The second argument Hopkins raises against the forf eiture of his pension benefits is his claim that Oklahoma’s pension forfe iture statute imposes an excessive fine on him in violation of the Eighth Am endment. This amendment reads, “Excessive bail shall not be required, nor e xcessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Con st. amend. VIII. The Supreme Court has explained that the Excessive Fines Clause “was intended to limit only those fines directly imposed by, and payable to, th e government.” BrowningFerris Indus. of Vermont, Inc. v. Kelco Disposal, I nc. , 492 U.S. 257, 268 (1989). Furthermore, at the time of the drafting and ratifi cation of the Eighth Amendment, the understanding of the term “fine” included “a payment to a sovereign as punishment for some offense.” Id. at 265. Implicit in this interpretation of the Excessive Fines Clause is the notion that it applie s only when the payment to the government involves turning over “property” of some kind that once belonged to- 16 -

the defendant. Cf. Austin v. United States , 509 U.S. 602, 604 (1993) (applying the Excessive Fines Clause to in rem forfeitures of a drug defendant’s mobile home and business). In this case, therefore, we must decide the thresho ld question of whether the forfeiture of Hopkins’ pension amounted to a payment of “property” by him to the state of Oklahoma. The district court ruled th at under Oklahoma law, Hopkins had no “property” right in his pension bene fits -- even though he had already begun to receive the pension benefits -- be cause Hopkins’ right to his pension always was contingent on maintaining honorable service during his tenure in office. See Woods v. City of Lawton , 845 P.2d 880, 882-83 (Okla. 1992); see also Okla. Stat. tit. 51, § 24.1(A) (forfeiting a publi c employee’s pension benefit upon the employee’s felony conviction for “a felonyor any offense involving a violation of his official oath”). When Hopkins acc epted a bribe in connection with a matter then being considered by the Corporat ion Commission, he breached his duty of honorable service. See Okla. Const. art. 9, § 17 (specifying that the oath of office for each commissioner must include adeclaration that the commission has no financial interest in any matters that come before the Commission). As a result, under Oklahoma law, Hopk ins had no “vested right” in his pension benefits. See Baker v. Oklahoma Firefighters Pension & Retirement Sys. , 718 P.2d 348, 350-51 (Okla. 1986) (“[U]nder Oklah oma law, the right to a- 17 -

pension would vest, or become absolute, upon the pe nsion recipient’s becoming eligible for payment of the pension. . . . [T]he ri ght of a claimant to a pension is controlled by the terms of the statute in effect wh en the right to a pension vests and . . . vesting occurs as of the date of retireme nt.”); see also Board of Trustees of the Police Pension & Retirement Sys. v. Weed , 719 P.2d 1276, 1278 (Okla. 1986) (noting the legal significance of a pension f orfeiture statute that is tied to dishonorable conduct during the employee’s term in office) (citing Kerner v. State Employee’s Retirement Sys. , 382 N.E.2d 243, 245-46 (Ill. 1978)). We agree with the district court’s interpretation o f Oklahoma law, and thus, we concur that Hopkins had no property right in his pension benefits. As a result, the forfeiture of those benefits does not constitut e a “payment” to the state of Oklahoma, and this forfeiture does not violate the Excessive Fines Clause of the Eighth Amendment. On appeal, Hopkins now contends that under Oklahomalaw he did indeed have a “vested right” to at least that portion of h is pension benefit that derives from his service as a state legislator. Hopkins ar gues that under Oklahoma law his pension benefits accruing as a result of his le gislative service vested when he completed his terms of office in the state House an d the state Senate. He contends that his bribery conviction, relating as i t does to his position as a Corporation Commissioner, affects only the pension benefits he accrued while- 18 -

serving on the Commission. We decline to consider this argument because Hopkin s failed to raise it below before the district court rendered its summary judgment. Hopkins presented his separate-vesting argument for the fir st time in his motion for a new trial. However, unlike the dual-sovereigns issue d iscussed above, Hopkins was fully on notice at the summary judgment stage that the question of whether his pension rights had “vested” would be the crucial is sue under his Eighth Amendment claim. The state’s brief in support of s ummary judgment discussed two state cases that had explicitly rejected argume nts about indefeasible vesting of pension benefits. See Kerner v. State Employees’ Retirement Sys. , 382 N.E.2d 243, 246 (Ill. 1978); West Virginia Pub. Employees Retirement Sys. v. Dodd , 396 S.E.2d 725, 732-33 (W.Va. 1990), overruled on othergrounds byBooth v. Sims , 456 S.E.2d 167 (W.Va. 1995). Thus, Hopkins could h ave, and should have, presented his argument concerning pension vesting at that time. As the district court noted in dismissing his motion for a new tria l, a litigant may not treat summary judgment proceedings as a “mere warmup” forthe “main event.” See Settino v. City of Chicago , 642 F. Supp. 755, 759 (N.D. Ill. 1986). We see n o abuse of discretion in the district court’s refusal to consider Hopkins’ untimely attempt to raise this new argument in his motion fo r a new trial. Furthermore, Hopkins’ failure properly to present his argument t o the district court prevents us- 19 -

from considering the issue now. See Tele-Communications, Inc. v. Commissioner of Internal Revenue , 104, F.3d 1229, 1233 (10th Cir. 1997) (“Propoundi ng new arguments on appeal in an attempt to prompt us to r everse the trial court undermines important judicial values.”)

Conclusion As a result, we hold that Oklahoma’s forfeiture of Hopkins’ pension benefits under Okla. Stat. tit. 51, § 24.1(A), did not violate either the Double Jeopardy Clause of the Fifth Amendment or the Exces sive Fines Clause of the Eighth Amendment. Thus, we AFFIRM the judgment of the district court.