1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-17-1997

United States v. Rice

Precedential or Non-Precedential:

Docket 96-7213

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Recommended Citation

"United States v. Rice" (1997). 1997 Decisions. Paper 64.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/64
1

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 96-7213 

 ___________ 

 UNITED STATES OF AMERICA 

v. 

 MELINDA RICE 

 a/k/a MELINDA EDWARDS 

 Melinda Rice, 

 Appellant 

 _______________________________________________________ 

 On Appeal from the District Court of the Virgin Islands 

 Division of St. Thomas and St. John 

 (D.C. Criminal No. 95-cr-00044-2) 

 ___________________ 

 Argued December 12, 1996 

 Before: SCIRICA, NYGAARD and McKEE, Circuit Judges

 (Filed March 17, 1997) 

 CHARLES E. ENGEMAN, ESQUIRE (ARGUED) 

 Dudley, Topper and Feuerzeig Law House 

 1A Frederiksberg Gade 

 Charlotte Amalie, St. Thomas 

 U.S. Virgin Islands 00804 

 Attorney for Appellant 

 AUDREY L. THOMAS-FRANCIS, ESQUIRE (ARGUED) 

 Office of the United States Attorney 

 United States Courthouse, Suite 260 

 5500 Veterans Drive 

 Charlotte Amalie, St. Thomas 

 U.S. Virgin Islands 00802 

 Attorney for Appellee 
2

 __________________ 

 OPINION OF THE COURT 

 __________________ 

SCIRICA, Circuit Judge. 

 The issue on appeal is whether a general discharge 

under honorable conditions from the United States Army for 

cocaine possession bars a subsequent federal criminal prosecution 

on double jeopardy grounds. 

 I. Facts and Procedural History

 On December 26, 1994, Melinda Rice, a private in the 

United States Army, attempted to clear United States customs at 

the Cyril E. King airport in St. Thomas, U.S. Virgin islands, en 

route to the United States. During a routine inspection, a 

customs agent asked Rice to open a package in her suitcase. The 

package contained 7.5 lbs. of cocaine. Rice's companion at the 

airport, Teddy Lorenzo Bryan, claimed ownership of the cocaine. 

After a brief detention, Rice was permitted to travel to her base 

at Fort Gordon, Georgia. But customs officials informed military 

investigators at Fort Gordon that Rice had attempted to clear 

U.S. customs with cocaine. 

 The Army's Criminal Investigation Division conducted an 

investigation. After Rice provided the Army with information 

about the "Island Boys," a narcotics smuggling ring, the Army 

charged her with violating Article 112a of the Uniform Code of 

Military Justice.1 But Rice was never prosecuted. Instead, 

 

1. Art. 112(a) of the Uniform Code of Military Justice, 10 

U.S.C. § 912(a), provides: "Any person subject to this chapter 

who wrongfully uses, possesses, manufactures, distributes, 
3

Rice's commanding officer recommended her discharge from the Army 

in accordance with 32 C.F.R. Part 41 and Chapter 14, 12-C of Army 

Regulation AR 635-200. The commanding officer made this 

recommendation because there was "substantial evidence" that Rice 

had engaged in drug possession and drug smuggling activities. 

Since Rice had served in the army for less than six years, she 

had no right to an administrative discharge hearing. 32 C.F.R. 

Part 41, App. A, Part 2(B)(1)(g). Although Rice was given an 

opportunity to submit a written statement to her commanding 

officer, she declined to do so. Rice received a "General 

Discharge (Under Honorable Conditions)." As a result of her 

discharge, Rice forfeited her G.I. College Fund investment worth 

$1200, her Civilian Service Retirement Credit, and her vested 

interest in the Army's retirement plan. 

 In April 1995, the United States Attorney for the 

Virgin Islands indicted Rice for conspiracy to distribute 

cocaine, possession with intent to distribute cocaine, and 

attempt to import cocaine, in violation of 21 U.S.C. §§ 

841(a)(1), 952(a) and 963. Rice filed a motion to dismiss her 

indictment on double jeopardy grounds, claiming her general 

discharge was punishment and the functional equivalent of a 

criminal prosecution barring subsequent prosecution for the same 

(..continued) 

imports into the customs territory of the United States, exports 

from the United States, or introduces into an installation, 

vessel, vehicle, or aircraft used by or under the control of the 

armed forces a substance described in subsection (b) shall be 

punished as a court-martial may direct." Cocaine is one of the 

substances enumerated in subsection (b). 
4

offense. The government argued the general discharge was not 

punishment because it was remedial in nature. 

 The district court denied Rice's motion, finding her 

Chapter 14 general discharge did not constitute punishment for 

double jeopardy purposes. Even if the discharge were punishment, 

the court held jeopardy had not attached during Rice's 

administrative discharge proceeding. United States v. Rice, 919 

F. Supp. 183 (D.V.I. 1996). This interlocutory appeal followed. 

 The district court stayed the trial pending appeal. 

 II. Jurisdiction and Standard of Review

 The district court had jurisdiction under 48 U.S.C. § 

1612. We have jurisdiction under 28 U.S.C. § 1291 and the 

collateral order doctrine. United States v. Baird, 63 F.3d 1213 

(3d Cir. 1995), cert. denied, 116 S. Ct. 909 (1996). Our review 

of a double jeopardy claim is plenary. United States v. Various 

Computers and Computer Equipment, 82 F.3d 582 (3d Cir.), cert. 

denied, 117 S.Ct. 406 (1996); United States v. Baird, 63 F.3d 

1213 (3d Cir. 1995). 

 III. Discussion 

A.

 In this appeal we must decide whether, under the Double 

Jeopardy Clause, Rice's general discharge under honorable 

conditions from the Army for misconduct prohibits a subsequent 

federal criminal prosecution predicated on the same acts. 

 The Double Jeopardy Clause of the Fifth Amendment 

provides, "No person shall . . . be subject for the same offense 

to be twice put in jeopardy of life or limb." U.S. Const., Amdt. 
5

5. The Clause serves the function of preventing both "successive 

punishments and . . . successive prosecutions." United States 

v. Ursery, __ U.S. __, 116 S. Ct. 2135, 2139 (1996) (quoting 

United States v. Dixon, 509 U.S. 688, 696 (1993)); Witte v. 

United States, __ U.S. __, 115 S. Ct. 2199, 2204 (1995) (same). 

"The protection against multiple punishments prohibits the 

government from punishing twice, or attempting a second time to 

punish criminally for the same offense." United States v. 

Ursery, __ U.S. __, 116 S. Ct. 2135, 2139-40 (1996) (quoting 

Witte v. United States, __ U.S. __, 115 S. Ct. 2199, 2204 

(1995)). 

 Rice contends the Double Jeopardy Clause's prohibition 

against successive punishments bars her prosecution under federal 

narcotics laws because she has already been punished for the same 

acts by the same sovereign. This argument has been rejected by 

two federal courts in cases involving similar administrative 

discharges. See United States v. Smith, 912 F.2d 322 (9th Cir. 

1990) (discharge for good of the service under less than 

honorable conditions is not punishment under the Double Jeopardy 

Clause); Bartlett v. United States, 475 F. Supp. 73 (M.D. Fla. 

1979) ("undesirable discharge" does not preclude subsequent 

criminal prosecution for same offense). As the Court of Appeals 

for the Ninth Circuit explained in Smith, a discharge for the 

good of the service "is administrative and non-punitive. No 

double jeopardy concern is raised when the first proceeding 

threatens a civil sanction rather than a loss of liberty." 

Smith, 912 F.2d at 324 (citations omitted). 
6

 The United States Supreme Court has held that in some 

circumstances, a civil sanction may constitute punishment within 

the meaning of the double jeopardy clause. See United States v. 

Halper, 490 U.S. 435 (1989), Department of Revenue of Montana v. 

Kurth Ranch, 511 U.S. 767 (1994), and United States v. Ursery, __ 

U.S. __, 116 S. Ct. 2135 (1996). Rice contends these holdings 

support her claim that a general discharge is punishment, barring 

subsequent prosecution by the same sovereign. We agree these 

cases have recast the analysis of civil sanctions under the 

Double Jeopardy Clause. But we do not believe they compel a 

different outcome than Smith and Bartlett. 

B.

 In United States v. Halper, 490 U.S. 435 (1989), the 

Supreme Court held a civil sanction that "cannot fairly be said 

solely to serve a remedial purpose, but rather can only be 

explained as also serving either retributive or deterrent 

purposes," is punishment for double jeopardy purposes. Id. at 

448. The court ruled that a $130,000 civil penalty for fraud 

bore no rational relationship to the remedial goal of 

compensating the government for its loss of $16,000. Since 

Halper had already been punished for his acts by a criminal fine 

and prison sentence, the subsequent imposition of a civil fine 

violated the Double Jeopardy Clause's prohibition against 

successive punishments. 

 The approach in Halper was extended in Department of 

Revenue of Montana v. Kurth Ranch, 511 U.S. 767 (1994). In Kurth 

Ranch, the Court held that a $181,000 state tax on persons 
7

arrested for drug possession and distribution had an 

"unmistakable punitive character" and "was fairly characterized 

as punishment." Id. at 783-84. For this reason, imposition of 

the tax following criminal conviction and sentencing constituted 

an impermissible second punishment. 

 In United States v. Ursery, __ U.S. __, 116 S. Ct. 

2135 (1996), the Supreme Court returned to the problem of civil 

sanctions as punishment. In Ursery, the Court applied a two-part 

test to determine whether two federal statutory forfeiture 

provisions constituted punishment for Double Jeopardy purposes. 

The Court first looked to congressional intent to determine 

whether Congress intended the provisions to be civil and remedial 

or criminal and punitive. Ursery, 116 S. Ct. at 2142, 2147 

(1996) (citing United States v. One Assortment of 89 Firearms, 

465 U.S. 354, 363 (1984)). The Court concluded Congress intended 

the forfeitures to be civil proceedings, because the proceedings 

were in rem, the statutes in question referred to "civil 

forfeiture," and the procedural rules and burdens of proof were 

civil in character. Ursery, 116 S. Ct. at 2147-48. 

 Second, the Court examined whether the statutory scheme 

was so punitive in purpose, effect, or fact as to negate 

Congress' intention to establish a civil remedy. Ursery, 116 S. 

Ct. at 2147-48 (1996). A defendant must establish by the 

"clearest proof" that the government has provided a sanction so 

punitive as to transform what was clearly intended as a civil 

remedy into a criminal penalty. Ursery, 116 S. Ct. at 2142 

(1996) (quoting 89 Firearms, 465 U.S. 354, 366 (1984)). The 
8

Court held there was little evidence, let alone clear proof, the 

statute was punitive in "form or effect." Ursery, 116 S. Ct. at 

2148. Although recognizing one of the statutes, authorizing 

forfeiture of property used in the commission of a drug felony, 

had "certain punitive effects," the Court noted it served 

important nonpunitive goals because it encouraged property owners 

to take care in managing their property, ensured that owners 

would not permit their property to be used for illegal purposes, 

and, in some circumstances, might abate a nuisance. The Court 

believed the other statute, authorizing forfeiture of property 

involved in illegal money-laundering transactions, served these 

same remedial purposes as well as "the additional nonpunitive 

goal of ensuring that persons do not profit from their illegal 

acts." Id. at 2148-49. For these reasons, the Court concluded 

the forfeiture statutes did not impose punishment within the 

meaning of the Double Jeopardy Clause.2 

 

2. The Court also considered four additional factors. First, 

the Court noted "in rem civil forfeiture has not historically 

been regarded as punishment, as we have understood that term 

under the Double Jeopardy Clause." Id. at 2149. Second, the 

statutes possessed no scienter requirement aside from an 

"innocent owner exception." Id. Third, the Court noted though 

both forfeiture statues "may fairly be said to serve the purpose 

of deterrence, we long have held that this purpose may serve 

civil as well as criminal goals." Id. Finally, the Court 

observed "though both statutes are tied to criminal activity . . 

. this fact is insufficient to render the statutes punitive," for 

"[i]t is well settled that 'Congress may impose both a criminal 

and a civil sanction in respect to the same act or omission.' By 

itself, the fact that a forfeiture statute has some connection to 

a criminal violation is far from the 'clearest proof' necessary 

to show that a proceeding is criminal." Id. (citation omitted, 

quoting Helvering v. Mitchell, 303 U.S. 391, 399 (1938). 
9

 It is clear therefore that in some circumstances, a 

civil sanction may constitute punishment for double jeopardy 

purposes. We believe Ursery provides the appropriate test here. 

 To determine whether Rice's administrative discharge was 

punishment for double jeopardy purpose, we must examine the (1) 

intent and (2) purpose or effect of the relevant administrative 

discharge regulations.3

C.

 Application of the Ursery test demonstrates Rice's 

general discharge was not punishment and the federal government's 

prosecution does not violate the Double Jeopardy Clause. 

 10 U.S.C. § 1169 authorizes the Secretary of Defense 

and branch Secretaries to prescribe regulations governing 

discharge of regular enlisted personnel from the armed forces 

 

3. Before Ursery, we adopted a three-part test of actual 

purpose, objective purpose, and effect to determine whether a 

government sanction is punishment. See Artway v. Attorney 

General of State of N.J., 81 F.3d 1235, 1263 (3d Cir. 1996). The 

Artway court noted: "We have thus attempted to harmonize a body 

of doctrine that has caused much disagreement in the federal and 

state courts. We realize, however, that our synthesis is by no 

means perfect. Only the Supreme Court knows where all the pieces 

belong. The Court will, we hope, provide more guidance with its 

decision in . . . some other case in the near future." Artway, 81 

F.3d at 1263. Artway represented an excellent and strongly 

reasoned attempt to interpret a complex line of Double Jeopardy 

cases. Shortly thereafter, the Supreme Court decision in Ursery

provided the guidance we sought in Artway by clarifying the 

proper test to be applied to determine whether a government 

sanction is punishment under the Double Jeopardy Clause. In 

Taylor v. Cisneros, 102 F.3d 1334 (3d Cir. 1996), we speculated 

as to the extent to which Ursery rendered the Artway test 

"overinclusive," but declined to reach a firm conclusion. 

Because the Artway test is similar in most respects to the test 

adopted by the Court in Ursery, we would reach the same result 

under either test. 
10

before expiration of their term of service.4 Under that 

authorization, the Secretary of Defense promulgated 32 C.F.R. 

Part 41, "Enlisted Administrative Separations," which establishes 

the standards and procedures the Army followed in Rice's general 

discharge. Analysis of 32 C.F.R. Part 41 demonstrates that when 

the federal government created its scheme of armed service 

administrative discharges for regular enlisted personnel, it 

intended to establish a remedial and civil, not criminal or 

punitive, sanction. 

 The Secretary of Defense promulgated 32 C.F.R. part 41 

to promote: 

the readiness of the Military Services by providing an orderly 

means to: 

(1) Ensure that the Military services are served by 

individuals capable of meeting required standards 

of duty performance and discipline; 

(2) Maintain standards of performance and conduct through 

characterization of service in a system that 

emphasizes the importance of honorable service; 

(3) Achieve authorized force levels and grade distributions; and 

(4) Provide for the orderly separation of enlisted 

personnel in a variety of circumstances. 

32 C.F.R. Part 41 § 41.3(a). The regulations also provide: 

Enlisted members who do not demonstrate potential for further 

military service should be separated in order to avoid 

the high costs in terms of pay, administrative efforts, 

degradation of morale, and substandard mission 

performance that are associated with retention of 

enlisted members who do not conform to required 

standards of discipline and performance despite efforts 

at counseling, retraining, or rehabilitation. 

 

4. 10 U.S.C. § 1169 provides: "No regular enlisted member of an 

armed force may be discharged before his term of service expires, 

except -- (1) as prescribed by the Secretary concerned; (2) by 

sentence of a general or special court martial; or (3) as 

otherwise provided by law." 
11

32 C.F.R. Part 41 § 41.3(b)(3). It is clear the remedial goals 

underlying the Department of Defense's administrative discharge 

scheme are designed to promote military readiness and efficiency 

by separating from service those enlisted persons who, if 

retained, would lower performance and morale. We see no evidence 

of a punitive or retributive intent. 

 Nor do we believe that Rice's discharge from the Army 

had a clear punitive effect or purpose, the second prong of our 

analysis. The primary effect and purpose of a general discharge 

under honorable conditions is to separate from service a soldier 

who fails to meet the Army's standards of conduct. These 

discharges are an important remedy to ensure the armed services 

shall consist of persons who maintain high levels of conduct and 

performance. There is no fine and no incarceration. Had the 

Army desired to punish Rice or deter others from similar conduct, 

it had other means to do so. As we have seen, the Army could 

have prosecuted her for violation of the Uniform Code of Military 

Justice. Instead, the Army gave Rice a general discharge under 

honorable conditions, applicable only where a "member's service 

has been honest and faithful." 32 C.F.R. Part 41, App. A Part 2 § 

C2(b)(2). There may be some stigma imposed by this form of 

discharge, but it is significantly less than that associated with 

a dishonorable discharge or a general discharge under other than 

honorable conditions. While a general discharge may deter others 

from similar conduct, that alone is insufficient to transform an 

otherwise remedial administrative measure into punishment under 

the Double Jeopardy Clause. See United States v. Ursery, __ U.S. 
12

__, 116 S. Ct. 2135, 2149 (1996) (though forfeiture provision 

serves purpose of deterrence, provision is not punishment under 

Double Jeopardy Clause; deterrence may serve civil non-punitive 

as well as criminal goals). Finally, we note Rice has not 

pointed to any prior court decision holding that a general 

discharge is punishment within the meaning of the Double Jeopardy 

Clause. 

D.

 For these reasons, we hold Rice's general discharge 

under honorable conditions was not punishment and the Double 

Jeopardy Clause does not prohibit the government from prosecuting 

her for the related drug offenses. 

 Because we hold Rice's discharge was not punishment, we 

do not reach the question whether jeopardy attached during her 

discharge proceeding. See United States v. $184,505.01 in U.S. 

Currency, 72 F.3d 1160, 1166-67 (3d Cir. 1995) (to prevail on 

double jeopardy claim, defendant must establish prior jeopardy as 

well as prior punishment), cert. denied, 117 S. Ct. 48 (1996); 

United States v. Baird, 63 F.3d 1213 (3d Cir. 1995) (same), cert. 

denied, 116 S. Ct. 909 (1996); Artway v. Attorney General, 81 

F.3d 1235, 1253 (3d Cir. 1996) (If government sanction does not 

impose punishment, double jeopardy inquiry is at an end). 

IV.

 For the foregoing reasons, we will affirm the judgment 

of the district court. 
13