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)
Before: SCIRICA, NYGAARD and McKEE, Circuit Judges
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. *fn1 But Rice was never prosecuted. Instead, 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. Section(s) 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 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. Section(s) 1612. We have jurisdiction under 28 U.S.C. Section(s) 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 ...