FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 04-10078
Plaintiff-Appellee,
v. D.C. No.
CR-03-00280-KJM
VICTOR M. CAMACHO,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Magistrate Judge, Presiding
Argued and Submitted
February 16, 2005—San Francisco, California
Filed June 24, 2005
Before: Sidney R. Thomas, Richard A. Paez, Circuit Judges,
and Larry A. Burns, District Judge.*
Opinion by Judge Paez
*The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
7549
UNITED STATES v. CAMACHO 7551
COUNSEL
Melissa A. Fair, Sacramento, California, for the defendant-
appellant.
Samantha S. Spangler, Sacramento, California, for the
plaintiff-appellee.
OPINION
PAEZ, Circuit Judge:
Victor Camacho is a federal civilian employee serving as
an Air Reserve Technician in the 749th Aircraft Maintenance
Squadron at the Travis Air Force Base in California. Camacho
7552 UNITED STATES v. CAMACHO
allegedly stole a home theater system from the Base
Exchange; in response, the squadron commander sanctioned
Camacho for theft. Nearly one year later, the United States
Attorney’s office filed an information charging Camacho for
the same alleged theft, as a misdemeanor violation of 18
U.S.C. § 641. Camacho filed a motion to dismiss the informa-
tion on double jeopardy grounds, arguing that the sanctions
his commander imposed constituted punishment barring his
subsequent prosecution. We have jurisdiction over the district
court’s collateral order under 18 U.S.C. § 1291,1 and we
review de novo. United States v. Schiller, 120 F.3d 192, 193
(9th Cir. 1997). We affirm the district court’s denial of Cama-
cho’s motion to dismiss.
I. Facts2
On August 26, 2002, Victor Camacho went to the Travis
Air Force Base Exchange and bought one home theater sys-
tem. He left the Exchange with two, the second of which he
allegedly stole. A Base Exchange employee alerted Cama-
cho’s supervisor to the incident, and the supervisor asked
Camacho to return to the base the next day. On August 27,
2002, Camacho returned to the base with the second system
and was detained at the gate by base patrol officers. After
meeting with base officials, Camacho signed a form acknowl-
edging the suspension of his privileges to use the Base
Exchange for six months. The acknowledgment form also
provided notice to Camacho of his right to request an admin-
istrative hearing, but no request was made. By signing the
form, Camacho also acknowledged that he “will be subject to
possible prosecution by civilian or federal authorities.”
1
Camacho’s claim has “some possible validity” and is in that sense
“colorable.” United States v. Sarkisian, 197 F.3d 966, 983 (9th Cir. 1999).
We therefore have interlocutory jurisdiction, see id., and we reject the
government’s argument to the contrary.
2
The district court had no need to make detailed factual findings
because the parties are in substantial agreement as to the relevant facts.
We therefore set forth the facts as agreed to by the parties.
UNITED STATES v. CAMACHO 7553
In addition to suspending his Base Exchange privileges,
Camacho’s supervisors—Commander John Korach of Cama-
cho’s reserve unit, and Superintendent Gary Runow, Cama-
cho’s immediate civilian and military supervisor—imposed
several other sanctions in response to the alleged theft. Cama-
cho was officially reprimanded. His annual incentive award
was reduced by over $300. His performance appraisal scores
were reduced in three of nine categories, impeding his pros-
pects for promotion. Finally, Camacho was required to
undergo counseling as a result of the incident. Korach and
Runow maintain that “these punishments will have a life-long
impact on Chief Camacho’s civilian and military employ-
ment.”
The Judge Advocate at Travis Air Force Base requested
criminal prosecution for the alleged theft. On June 16, 2003,
long after Camacho’s supervisors had disciplined him, the
U.S. Attorney for the Eastern District of California filed an
information charging Camacho with a misdemeanor violation
of 18 U.S.C. § 641. Camacho pled not guilty at his arraign-
ment, and filed a motion to dismiss on double jeopardy
grounds. Camacho’s motion was supported by a letter from
Commander Korach and Superintendent Runow, urging the
U.S. Attorney to defer Camacho’s criminal prosecution indef-
initely. They argued that Camacho was “more than adequately
punished” and that the disciplinary actions “were intended as
[his] sole punishment, and are sufficient discipline for the
petty crime charged.” The Judge Advocate, however, through
Federal Court Liaison Linda Allen, disagreed and continued
to urge prosecution. Allen argued that the “administrative
action” Camacho’s supervisors had taken “has no impact on
our decision with regard to prosecution,” and that none of the
sanctions was punitive in nature. A magistrate judge denied
the motion to dismiss, and the district court affirmed. Cama-
cho timely appealed.
II. Discussion
[1] The Double Jeopardy Clause of the Fifth Amendment
provides that “[n]o person shall . . . be subject for the same
7554 UNITED STATES v. CAMACHO
offence to be twice put in jeopardy of life or limb . . . .” U.S.
Const. amend. V. It consists of “three separate constitutional
protections. It protects against a second prosecution for the
same offense after acquittal. It protects against a second pros-
ecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.” North
Carolina v. Pearce, 395 U.S. 711, 717 (1969); see also Ex
parte Lange, 85 U.S. 163, 173 (1873). But the Supreme Court
“ha[s] long recognized that the Double Jeopardy Clause does
not prohibit the imposition of all additional sanctions that
could, ‘in common parlance,’ be described as punishment.”
Hudson v. United States, 522 U.S. 93, 98-99 (1997) (quoting
United States ex rel. Marcus v. Hess, 317 U.S. 537, 549
(1943)). The Clause prohibits only the imposition of multiple
criminal punishments for the same offense. Id.; see also Hess,
317 U.S. at 548-49 (“[O]nly [criminal punishments] subject
the defendant to ‘jeopardy’ within the constitutional mean-
ing.”).
[2] Camacho’s supervisors acted solely in their capacity as
employers when they imposed disciplinary sanctions. They
used only measures that are available to private employers
and did not invoke the government’s sovereign power to pun-
ish. When an entity of the federal government acts as an
employer, that government entity “is not the federal sovereign
vindicating the criminal law of the United States.” See United
States v. Heffner, 85 F.3d 435, 439 (9th Cir. 1996). Camacho
raises a question of first impression in this circuit; however,
the Second,3 Fifth,4 Sixth,5 Seventh,6 and Eleventh7 Circuits
all have concluded that in such situations, double jeopardy
analysis does not apply.8 We follow the considered judgment
3
United States v. McAllister, 119 F.3d 198, 199 (2d Cir. 1997).
4
United States v. Reyes, 87 F.3d 676, 677, 679-80 (5th Cir. 1996).
5
United States v. Payne, 2 F.3d 706, 710 (6th Cir. 1993).
6
United States v. Wingate, 128 F.3d 1157, 1163 (7th Cir. 1997).
7
United States v. Reed, 937 F.2d 575, 578 (11th Cir. 1991).
8
Camacho argues that these cases do not apply because they were
decided under United States v. Halper, 490 U.S. 435 (1989), which was
UNITED STATES v. CAMACHO 7555
of our sister circuits and hold that, because Camacho’s federal
employer imposed sanctions no different from those a private
employer could have imposed, his subsequent criminal prose-
cution does not trigger the Double Jeopardy Clause.
As Camacho conceded before the magistrate judge, the
sanctions at issue here were without question the sort of pun-
ishment a private employer could impose upon a private
employee.9 The Second Circuit decided a very similar case in
McAllister, where the defendant, a soldier in the Army, was
prosecuted for driving while intoxicated. 119 F.3d at 199.
McAllister’s commanding officer had already issued a letter
of reprimand, reduced his rank, suspended his on-base driving
privileges for one year, and barred his re-enlistment for the
same incident. Id. at 198. Denying his motion to dismiss the
subsequent criminal charges on double jeopardy grounds, the
court concluded:
In disciplining McAllister after his arrest, the gov-
subsequently overruled by Hudson, 522 U.S. at 95. But these circuits all
expressly disavowed any reliance on Halper. See McAllister, 119 F.3d at
200 (“[T]his appeal does not require us . . . to reconcile apparently con-
flicting dicta in Halper . . . .”); Wingate, 128 F.3d at 1163 (“[T]he applica-
tion of the Halper test to this kind of sanction would work an absurd
result.” (quotation marks omitted)); Reyes, 87 F.3d at 680 (“[W]e will not
apply the Halper test because the Double Jeopardy Clause is inapplica-
ble.”); Payne, 2 F.3d at 711 (“[W]e reject Payne’s contention for the rea-
sons stated in Reed.”); Reed, 937 F.2d at 578 (“[T]he Halper test . . . is
inapposite to the facts of this case.”). The fact that Halper was subse-
quently overruled by Hudson, 522 U.S. at 95, thus has no bearing on the
analysis or holdings of these cases. We reject Camacho’s argument that
McAllister, Reyes, and Reed are “inapposite.”
9
Our analysis depends upon the nature of the sanctions imposed by the
government in this case. Here, the disciplinary sanctions imposed on
Camacho were no different than those which could have been imposed by
a private entity. Only when disciplinary sanctions imposed by the govern-
ment acting in its role as sovereign are the functional equivalent of crimi-
nal punishment is the double jeopardy bar implicated.
7556 UNITED STATES v. CAMACHO
ernment acted not in its capacity as sovereign, but
rather as an employer. The measures imposed by the
commanding officer . . . , regardless whether they
had any punitive intention, were sanctions that a pri-
vate employer could impose on an employee who
has endangered safety by drunken driving on the
employer’s premises. Such sanctions do not require
use of sovereign power or invoke the power of the
state to punish in the manner of a sentence of impris-
onment. . . .
We hold that, where the government, acting as
employer of members of the armed forces, disci-
plines a member by using measures that are available
to private employers, and are not uniquely within
government’s power to punish for criminal wrongdo-
ing, such discipline ordinarily will not constitute
“punishment” within the meaning of the Double
Jeopardy Clause.
Id. at 200-201.
The Fifth Circuit reached the same conclusion where the
defendant was a civilian Air Force employee who argued that
his three-day, unpaid suspension for drunk driving on the Air
Force base constituted punishment that barred his subsequent
prosecution. Reyes, 87 F.3d at 677, 679-80. “[I]f the govern-
ment was acting in a role other than as sovereign in its sus-
pension of [the defendant], and was doing no more than a
typical private employer generally could lawfully do without
invoking the machinery of the sovereign,” then, the court con-
cluded, “the Double Jeopardy Clause is inapplicable.”10 Id. at
680.
10
As the Fifth Circuit noted, the Supreme Court has in other contexts
distinguished between the constitutionality of government actions taken in
its capacity as sovereign and those taken only in its capacity as employer.
Reyes, 87 F.3d at 680. For example, First Amendment protections of free
UNITED STATES v. CAMACHO 7557
In Wingate, the Seventh Circuit rejected a similar claim
brought by an employee of the Immigration and Naturaliza-
tion Service (“INS”), who was suspended for four months
after being indicted for “depriving the INS of his honest ser-
vices.” 128 F.3d at 1158. Wingate argued that his suspension
constituted punishment for double jeopardy purposes; the
Seventh Circuit disagreed. The court concluded that applying
double jeopardy analysis to the context of employment sanc-
tions “would work an absurd result.” Id. (citing Reed, 937
F.2d at 578). The court adopted a categorical approach, rea-
soning that “[t]he suspension of an indicted government offi-
cial is always remedial in nature, and does not implicate the
Double Jeopardy clause.” Id. at 1163.
The Sixth and Eleventh Circuits similarly have agreed that
employment-related disciplinary measures imposed on Postal
Service employees do not amount to punishment for double
jeopardy purposes. Payne, 2 F.3d at 710; Reed, 937 F.2d at
578. In Reed, a letter carrier was indicted for embezzling
money from his deliveries after an arbitrator had placed him
on a thirty-day “disciplinary suspension” for the same con-
duct. Id. at 575-76. Denying the defendant’s double jeopardy
claim, the court appears to have outlined a categorical rule,
reasoning that, as long as the employer’s sanction was “within
the framework provided by an employment contract, [it]
serves ‘legitimate nonpunitive governmental objectives’ and
is by its nature remedial.” Id. at 578 (quoting Halper, 490
U.S. at 448) (emphasis added); see also Payne, 2 F.3d at 711
speech do not extend to government employees if the speech is not of pub-
lic concern. Id. (citing Connick v. Myers, 461 U.S. 131, 146-48 (1983)).
Furthermore, searches and seizures conducted by government employers
do not require probable cause and instead are subject to a reasonableness
standard. Id. (citing O’Connor v. Ortega, 480 U.S. 709, 721-27 (1987)
(plurality opinion) and National Treasury Employees Union v. Von Raab,
489 U.S. 656, 669-72 (1989)). In short, “[t]here is ample support for con-
stitutionally distinguishing government acting as employer from govern-
ment acting as sovereign.” Id.
7558 UNITED STATES v. CAMACHO
(rejecting the defendant’s motion to dismiss “for the reasons
stated in Reed”).
Our sister circuits have identified sound policy reasons for
adopting such a rule. First, barring a defendant’s prosecution
for misappropriation of postal funds would transform the
Double Jeopardy Clause into “a forum-shopping tool for gov-
ernment employees who have violated the law.” Reed, 937
F.2d at 578. The government would be precluded from firing
or even sanctioning an employee accused of serious miscon-
duct for fear of jeopardizing a subsequent prosecution. McAl-
lister, 119 F.3d at 201. Such an interpretation would also give
government employees rights against subsequent prosecution
that private employees do not enjoy. Reyes, 87 F.3d at 681.
And, if the timing were reversed and an employee’s criminal
prosecution preceded disciplinary employment sanctions, the
government could be prevented from suspending or firing an
employee “with the means and opportunity to commit more
crimes.” Wingate, 128 F.3d at 1163. Applying traditional dou-
ble jeopardy analysis in this context is simply impracticable.
This court has considered the problem of the government’s
dual roles as it relates to double jeopardy only in the corporate
receivership context. Heffner, 85 F.3d at 438 (relying on
United States v. Beszborn, 21 F.3d 62, 67-67 (5th Cir. 1994));
see also United States v. Ely, 142 F.3d 1113, 1121 (9th Cir.
1998) (holding that since the FDIC acted only in its capacity
as receiver, “[t]he United States was not a party” and there-
fore “[t]he Double Jeopardy Clause has no application”). Our
reasoning in that related context, however, provides strong
support for our conclusion that Double Jeopardy analysis is
inapplicable where the government acts in its capacity as
employer rather than as sovereign.
In Heffner, the Resolution Trust Corporation (“RTC”), an
entity of the federal government, inherited litigation involving
a real estate deal from a bank for which the RTC acted as a
corporate receiver. 85 F.3d at 436. The deal soured, and the
UNITED STATES v. CAMACHO 7559
RTC’s complaint sought recision, actual damages, and “puni-
tive damages in an amount sufficient to punish and make an
example of the defendants . . . .” Id. at 437 (quotation marks
omitted). That case settled, with a release by the RTC of all
claims arising out of the same underlying transactions. Id. A
federal grand jury subsequently indicted the defendants for
conspiracy and fraud, among other charges. Id. at 437-38. In
response to the defendants’ motion to dismiss on double jeop-
ardy grounds, the district court held:
Defendants’ argument ignores the well established
principle that the RTC, like the FDIC is empowered
to act in two entirely separate and distinct capacities.
When the RTC is acting in its capacity as a receiver,
its actions are not conduct of the Government for
purposes of the Double Jeopardy Clause.
Id. at 438.
We agreed. Id. at 439. We acknowledged that the RTC has
subpoena power and that RTC investigators “ ‘assist[ ] the
Federal Bureau of Investigation and U.S. Attorneys in prose-
cuting individuals.’ ” Id. (quoting Dep’t of Justice, Financial
Institution Fraud Federal Prosecution Manual (1994)). None-
theless, those characteristics were not sufficient “to transform
the RTC as receiver of a federally insured institution into the
federal government prosecuting a violation of the federal
criminal law.” Id. In short, the RTC’s separate civil and crimi-
nal functions could not be mingled. Id. Because the United
States in its sovereign capacity was not a party to the civil
case, the Double Jeopardy Clause was not implicated. Id.; see
also Ely, 142 F.3d at 1121.
[3] Similarly here, the United States did not invoke its sov-
ereign power in disciplining Camacho, and therefore the gov-
ernment’s separate role as employer should not be merged
with its criminal enforcement functions. The employment
sanctions at issue here are categorically not susceptible to
7560 UNITED STATES v. CAMACHO
double jeopardy analysis; we therefore need not apply the tra-
ditional two-part test the Supreme Court outlined in Hudson.
522 U.S. at 99. Camacho was suspended from shopping at the
Exchange from which he had allegedly been caught stealing;
his performance review ratings were lowered to conform to
his actual performance. Applying the Fifth Amendment to bar
criminal prosecution in conjunction with these disciplinary
measures would stretch the protection of the Double Jeopardy
Clause beyond its intended limits.
III. Conclusion
Camacho’s criminal prosecution for theft of a home theater
system from the Travis Air Force Base does not violate his
Fifth Amendment protection against double jeopardy. The
discipline to which Camacho was subjected is the type of dis-
cipline any private employer might have imposed on an
employee. It did not rely on the government’s sovereign
power and is thus outside the scope of double jeopardy con-
cerns. We therefore affirm the district court’s denial of his
motion to dismiss the indictment on that ground.
AFFIRMED.