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UNITED STATES v. BOUCHEY

December 11, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
AMPARO B. BOUCHEY, et al., Defendants.



The opinion of the court was delivered by: HARRIS

 Before the Court are the government's motion for summary judgment, defendant Bouchey's opposition thereto, defendant's motion to dismiss, the government's opposition thereto and reply on its own motion, and defendant's reply. Upon consideration of the entire record, the Court grants the government's motion and denies defendant's motion. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," Fed. R. Civ. P. 52(a), the Court nonetheless sets forth briefly its analysis.

 Background

 A jury convicted defendant of conspiracy, in violation of 18 U.S.C. § 371, and conflict of interest, in violation of 18 U.S.C. § 208. (Defendant was acquitted on two counts, including aiding and abetting bribery.) The convictions stemmed from defendant's involvement as a government official in the approval of a government contract with her codefendant John E. Ricche, in which defendant had a financial interest and while she was negotiating future employment with Ricche. *fn1"

 The government subsequently brought this civil action against defendant Bouchey and two other defendants, Ricche and Wendell Harbour, alleging violations of the False Claims Act, 31 U.S.C. § 3729, entitlement to civil penalties under for conflict of interest, 18 U.S.C. § 216(b), and common law actions. *fn2" The government's complaint claims damages of $ 530,000 plus costs.

 The government now seeks summary judgment against defendant in the amount of $ 50,000 under the conflict of interest law; to this end, the government asserts that it is willing to forego the remainder of its claims. Mem. in Support of Pl.'s Mot. for Summ. J. at 1. Defendant seeks dismissal of this action, contending that it violates the Double Jeopardy Clause of the Fifth Amendment.

 Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 321, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Because the issues raised by the present motions concern only questions of law, this matter is ripe for resolution on summary judgment.

 Upon careful consideration of the entire record, the Court denies defendant's motion to dismiss, grants the government summary judgment with regard to the Count VI claim for a $ 50,000 penalty under the conflict of interest law, and dismisses, pursuant to Federal Rule of Civil Procedure 41(a)(2), the remainder of the government's claims.

 Discussion

 Title 18 U.S.C. § 216(b) provides that:

 
The Attorney General may bring a civil action in the appropriate United States district court against any person who engages in conduct constituting an offense under section 203, 204, 205, 207, 208 or 209 of this title and, upon proof of such conduct by a preponderance of the evidence, such person shall be subject to a civil penalty of not more than $ 50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever amount is greater. The imposition of a civil penalty under this subsection, does not preclude any other criminal or civil statutory, common law or administrative remedy, which is available by law to the United States or any other person.

 Defendant was convicted of a violation of 18 U.S.C. § 208, and thus falls within the purview of section 216(b).

 Defendant contends that the instant action is barred by the Double Jeopardy Clause of the Fifth Amendment of the Constitution. Under that clause, "a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." United States v. Halper, 490 U.S. 435, 448-49, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). In order to establish a violation of the Fifth Amendment, defendant must show both (1) that the penalty the government seeks is "punishment," and (2) that there is successive prosecution. Because the Court finds that the civil penalty the government seeks is remedial compensation, and not punishment, the Court does not need to address the issue of whether this action is a successive prosecution.

 Under Halper, a civil penalty is not punishment if it is imposed as a remedy for actual costs to the government that are ...


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