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Court to decide ‘double-jeopardy’ question in civil-criminal cases

April 14, 1997

WASHINGTON (AP) _ The Supreme Court today agreed to clarify when people forced by federal agencies to pay civil fines can also be criminally prosecuted for the same conduct.

The justices said they will use an Oklahoma case to decide just when the assessment of civil fines and criminal penalties based on the same conduct violates the Constitution’s double-jeopardy ban on multiple punishments.

Federal appeals courts have reached conflicting conclusions on that issue, one the Clinton administration calls ``recurring and important.″

``The disagreement in the lower courts on the proper double-jeopardy analysis creates uncertainty about how such parallel proceedings should be pursued,″ government lawyers told the justices.

John Hudson was the majority owner of five Oklahoma banks when federal regulators cited him for illegal acts that contributed to the failures of two of the banks, in Tipton and Hammon.

Larry Baresel, a member of the board of directors of both banks, and Jack Rackley, president of the Tipton bank, also were cited by the Treasury Department’s Office of the Comptroller of the Currency.

Hudson was fined $100,000, and fines of $50,000 were assessed against the other two men.

Under a negotiated settlement, all three agreed in late 1989 to pay lesser fines and not participate in any banking activities without written federal authorization.

The three ended up paying fines totaling $44,000.

In 1992, all three men were indicted on charges of conspiracy, misapplying bank funds and making false entries. The violations cited in the indictment were based on the same conduct for which they had been fined three years earlier.

The three men sought to have the indictment dismissed, arguing that their convictions would result in unlawful multiple punishments.

The 10th U.S. Circuit Court of Appeals ruled last August that the indictment raised no double-jeopardy problem.

Relying on an 1989 Supreme Court ruling, the appeals court said a civil fine is not punishment ``when it bears a rational relation to the goal of compensating the government for its loss.″

The 1989 ruling said for the first time that civil fines sometimes may be a form of unconstitutional double jeopardy.

``A civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be explained only as also serving either retributive or deterrent purposes, is punishment,″ the justices said then.

The 10th Circuit court noted that the government had claimed investigative costs of $72,000 in the Oklahoma banking case. The appeals court said the $44,000 in fines therefore ``can fairly be characterized as remedial″ rather than punitive.

A federal trial judge earlier had thrown out the indictments after ruling there was evidence that the $44,000 in fines was related to governmental costs. But the appeals court said federal judges are not authorized to probe a federal agency’s ``subjective intent″ in levying fines.

Hudson, Baresel and Rackley then asked the Supreme Court to review the 10th Circuit court’s ruling, and government lawyers did not oppose the request.

One reason: In another case now pending before the justices, a different appeals court adopted a conflicting double-jeopardy approach.

The 7th U.S. Circuit Court of Appeals barred a piling on of civil and criminal fines in a case that stemmed from the Occupational Safety and Health Administration investigation of a 1988 methane gas explosion in a Milwaukee tunnel. The blast killed three workers.

S.A. Healy Co., which employed the three workers, was hit with a $318,500 civil fine after having been indicted, convicted and fined $750,000. The 7th Circuit court threw out the civil fine, ruling that it resulted in multiple punishments.

The Wisconsin case likely will be held until the Oklahoma case is decided, sometime in 1998.

The case granted review today is Hudson vs. U.S., 96-976.

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