ML20056H328
| ML20056H328 | |
| Person / Time | |
|---|---|
| Issue date: | 09/02/1993 |
| From: | Robert Davis, Daniel Shapiro NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20056H326 | List: |
| References | |
| 93-01-PF, 93-1-PF, 93-673-01-PF, 93-673-1-PF, NUDOCS 9309090156 | |
| Download: ML20056H328 (9) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Law Judge Morton B. Margulies t
l
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l In the Matter Of
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Docket No. 93-01-PF
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l LLOYD P.
ZERR
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ASLBP No. 93-673-01-PF
)
)
NRC'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS INTRODUCTION Defendant has filed a motion to dismiss this action principally on double jeopardy grounds and asserts that "Lloyd P.
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Zerr has been twice placed in jeopardy, having fully complied with the [ pretrial diversion) agreement with the United States of America." Defendant's Motion at 3.
Defendant cites the following facts in support of his double jeopardy argument:
(1) Defendant l
has already been indicted by a federal grand jury in Georgia
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concerning the same subject matter of the complaint in this action, (2)
Defendant entered into a
pretrial diversion agreement l
concerning the indictment, (3) Defendant met the conditions of the diversion agreement such that the indictment was dismissed, and (4) 1 Defendant also seems to argue that by bringing this action the United States has violated the pretrial diversion agreement and l
that by accepting Defendant's resignation in lieu of adverse action l
the NRC is somehow foreclosed from bringing this action.
Each of these arguments are addressed in the Discussion section of this pleading.
l 9309090156 930902 M
PDR MISC 4
l 9309090154 ppg g
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2 s
t the Complaint in this action seeks restitution and punitive l
sanctions.
Defendant's Motion at 1-2.
As set forth below, i
l Defendant's double jeopardy argument must fail for the simple reason, aside from the fact that this proceeding is civil in s
f nature, that the bringing of an indictment which is ultimately
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i dismissed after the Defendant meets the conditions of a pretrial 1
diversion agreement never places the Defendant in jeopardy.
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BACKGROUND j
on December 9,
1991, a federal grand jury in Georgia charged Defendant Lloyd P.
Zerr in a five-count indictment with f
violating 18 U.S.C. S 287 (False, Fictitious or Fraudulent Claims) i and 18 U.S.C. S 1001 (False Statement).
Thereafter, on May 13, j
i 1992, Defendant signed a pretrial diversion agreement with the United States Attorney's Office for the Southern District of
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Georgia which contained the following provisions:
(1) prosecution in the Southern District of Georgia would be deferred for a period l
of eighteen months provided that the Defendant abided by specified conditions and requirements; and (2) if Defendant complied with all the rules, regulations and conditions contained in the agreement, no prosecution for the offenses contained in the indictment would be instituted in the Southern District of Georgia and any indictment or information would be Gischarged.
Exhibit 2 to Defendant's Motion at 1.
As conditions to the pretrial diversion agreement, Defendant was required, among other things, to report to a probation officer and pay restitution to the United States in an amount to be determined by defense counsel, the prosecution, and
3 the Inspector General's Office of the Nuclear Regulatory Commission.
The indictment against Defendant was dismissed without prejudice on May 20, 1992.
The Defendant complied with the conditions of the diversion agreement and on June 30, 1993, at the request of NRC counsel, the United States Attorney's Office for the Southern District of Georgia declined further prosecution in that district for the crimes covered by the diversion agreement.
On December 10, 1992, the NRC served Defendant with a complaint pursuant to the Program Fraud Civil Remedies Act, 31 U.S.C S 3801 et.
sea.,
seeking penalties and assessments as provided for in the Act.
DISCUSSION 1.
Double Jeopardv The Constitutional provisions against double jeopardy protect an accused against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense.
Whalen v. United States, 445 U.S. 684 (1980).
It is axiomatic that the prohibition against double jeopardy is not implicated unless there exists the attachment of former jeopardy.
Lockett v. Montemanao, 784 F.2d 78 (2d Cir. 1986) cert. denied 479 U.S.
832 (1986)
(threshold requirement before double jeopardy clause can be interposed successfully is that initial proceeding at issue be the type in which jeopardy can attach); Fransaw v.
Lvnauch, 810 ".2d 518 (5th Cir. 1987) cert, denied 483 U.S.
1008
l t
4 (1987) (no question of double jeopardy arises unless jeopardy first attached sometime prior to that which defendant seeks to characterize as the second punishment).
Jeopardy means exposure to danger and does not attach unless there is a risk of a determination of guilt.
Hicks v.
Duckworth, 922 F.2d 409 (7th Cir.1991).
In a jury trial, jeopardy
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attaches when the jury is impaneled and sworn.
Buffinoton v.
Baltimore County, 913 F.2d 113 (4th Cir. 1990) cert. denied 113.
S.Ct. 1106 (1991).
In a nonjury trial, jeopardy attaches when the court begins to hear evidence.
Id.
A former conviction on a plea agreement is also sufficient to sustain a defense of double jeopardy in a subsequent prosecution for the same offense.
United States v. Baccett, 901 F.2d 1546 (11th Cir. 1990) cert. denied 111 S.Ct. 168 (1990) (jeopardy attaches when the court unconditionally accepts a guilty plea); United States v. Smith, 912 F.2d 322 (9th Cir. 1990).2 Procedural matters preliminary to a
trial do not constitute jeopardy. Thus, jeopardy does not attach to proceedings before a grand jury or to proceedings before a
committing magistrate.
United States v. Soto-Alveraz, 958 F.2d 473 (1st Cir.
1992) cert. denied 113 S.Ct. 221 (1992).
The mere arraignment and 2 Even when jeopardy has attached and a defendant has been criminally punished, the government may obtain civil compensation according to somewhat imprecise formulas, such as reasonable liquidated damages or fixed sum plus double damages without being deemed to have imposed a second punishment for purposes of double jeopardy analysis if the civil compensation bears a rational relation to the goal of compensating the government for its loss, including the costs of investigation.
United States v. Haloer, 490 U.S. 435 (1989).
5 pleading to an indictment also does not put an accused in judicial jeopardy. United States v. Hawes, 774 F. Supp. 965 (E.D.N.C.1991)
(pretrial dismissal of an indictment does not invoke double jeopardy clause because jeopardy cannot attach until jury is sworn) aff'd sub. nom. United States v.
Burns, 990 F.2d 1426 (4th Cir.
1993); United States v.
Belcher, 762 F.
Supp. 666 (W.D.Va. 1991)
(defendant who achieved dismissal of State indictment long before trial was never placed in jeopardy).
In this case, jeopardy never attached.
The indictment was withdrawn after the Defendant met the conditions of t.he pretrial diversion agreement.
No jury was empaneled, nc evidence received, and no plea agreement was accepted by the court.
The mere bringing of an indictment followed by its withdrawal after the conditions of a pretrial diversion agreement are met comes nowhere 1
l close to having placed the Defendant in jeopardy.
This fact is fatal to Defendant's double jeopardy motion.
Egg United States v.
Schaffner, 771 F.2d 149 (6th Cir.
1985)
(pretrial diversion agreement concerning defendant's violation of obstruction of process and his subsequent trial for obstruction of justice did not violate rules of double jeopardy because defendant was never tried on the obstruction of process charge and therefore never placed in l
jeopardy).
Because the Defendant was never put in jeopardy, any double jeopardy argument is wholly without merit.
2.
Violation of Pretrial Diversion Aareement Defendant asserts that, "in the case of Lloyd P.
- Zerr, the criminal sanction has been utilized to its full capacity in
6 that he was indicted, the case was reviewed by the United States Attorney for determination and agreement was reached with the United States government, the agreement was kept, and now the United States government seeks to breach the agreement, despite it having been fully carried out."
Defendant's Motion at 2-3.
A reading of the plain language of the diversion agreement, however, clearly shows that Defendant's argument is without merit because the United States met all commitments it made in the diversion agreement.
The United States Attorney's Office for the Southern District of Georgia made two explicit commitments in the pretrial diversion agreement. First, " prosecution in this District for this offense shall be deferred for the period of eighteen (18) months from this date, provided you abide by the following conditions and the requirements of the program set out below."
Second, "if, upon completion of your period of supervision, a pretrial diversion report is received to the effect that you complied with all the rules, regulations and conditions above-mentioned, no prosecution for the offense set out on page 1 of this Agreement will be instituted in this District, and any indictment or infomation will te discharged."
Prosecution of the Defendant for the crimes stated in the indictment was in fact deferred.
The indictment was dismissed without prejudice seven days after the Defendant signed the diversion agreement. Exhibit 3 to Defendant's Motion.
Because the indictment was dirmissed without prejudice, the United States could
7 have reinstated the indictment if the Defendant violated the terms of the agreement.
Thereafter, the United States declined any further prosecution of the Defendant after the Defendant met the conditions of the diversion agreement as evidenced by the June 30,
- 1993, letter declining further prosecution of the Defendant.
Exhibit 6 to Defendant's Motion.
Therefore, since the United States has met and continues to meet all conditions of the diversion agreement, Defendant's argument that the government now seeks to breach the agreement is without merit.
3.
Adverse Action Defendant asserts that he " resigned his position with the United States government at a time when the resignation was in lieu of adverse action" and that ".
Lloyd P.
Zerr has been subject i
to adverse action." Defendant's Motion at 3.
It is not clear what argument is put forward with these statements.
- However, if Defendant is asserting that the NRC is foreclosed from bringing this action pursuant to the Program Fraud Civil Remedies Act because the NRC accepted Defendant's resignation in lieu of adverse
- action, Defendant is wrong.
The adverse action Defendant's resignation was in lieu of was being fired.
There was and is no evidence of an agreement that if Defendant resigned his position the NRC would take no further action against him.
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l CONCLUSION Because the Defendant's legal arguments are entirely without merit, the Motion to Dismiss should be denied.
Respectfully submit
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A90rlA W d og N d.I D U.
S. Nuclear Regulatory 7
Commission Office of the General Counsel Mail Stop 15 B18 Washington, D.C.
20555 Tel. 301/504-1606 l
Attorneys for the NRC
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DATED September 2, 1993 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Law Judge Morton B. Margulies l
l
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In the Matter Of
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Docket No. 93-01-PF
)
LLOYD P.
ZERR
)
ASLBP No. 93-673-01-PF l
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CERTIFICATE OF SERVICE l
I hereby certify that copies of the foregoing "NRC's l
Opposition to Defendant's Motion to Dismiss" was served upon the following persons by U.S. mail, first class, except as indicated l
by an asterisk, through deposit in the Nuclear Regulatory l
Commission's internal mail system, this 2nd day of September, 1993.
l Morton B. Margulies*
Lloyd P.
Zerr Chief Administrative Law 718 13th Street, NE l
Judge Washington, DC 20002 Atomic Safety and Licensing i
Board, Mail Stop EW-439 Timothy E.
Clarke, Esq.
U.S. Nuclear Regulatory 5 North Adams Street Commission Rockville, MD 20850 Washington, DC 20555 (original plus two copies)
Office of Commission Appellate Adjudication
- U.S. Nuclear Regulatory Commission Washington, DC 20555
- i. /d M aryl ML RapJro/
U.S. !(uclear Regulatory Commission Office of the General Counsel Mail Stop 15 B18 l
Washington, DC 20555 Tel. 301/504-1606
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