United States v. Andrews, Arthur R.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 23, 1997 Decided June 26, 1998

No. 97-3035

United States of America,

Appellee

v.

Arthur R. Andrews,

Appellant

Consolidated with

No. 97-3036

Appeals from the United States District Court

for the District of Columbia

(No. 96cr00139-01)

(No. 96cr00139-02)

L. Barrett Boss, Assistant Federal Public Defender, argued
the cause for appellants, with whom A.J. Kramer, Federal

Public Defender, and Joseph R. Conte, appointed by the
court, were on the briefs.

Barbara J. Valliere, Assistant U.S. Attorney, argued the
cause for appellee, with whom Mary Lou Leary, U.S. Attor-
ney, John R. Fisher and Harry R. Benner, Assistant U.S.
Attorneys, were on the brief. Elizabeth Trosman, Assistant
U.S. Attorney, entered an appearance.

Before: Williams, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Appellants are the chief executive
officer and president of a corporation against which the
Securities and Exchange Commission (SEC) secured a civil
monetary penalty in 1995. In 1996, a grand jury indicted
appellants for essentially the same conduct. Appellants con-
tend that the SEC penalty constitutes a punishment that bars
their subsequent criminal prosecution under the Double Jeop-
ardy Clause of the Fifth Amendment. We disagree. Wheth-
er or not such a penalty would implicate the Clause if
imposed on appellants, we hold that the penalty imposed on
the corporation constitutes neither a punishment of appel-
lants, nor a sufficiently choate "attempt to punish" the appel-
lants, to implicate their constitutional rights. Accordingly, we
do not reach the question whether the SEC penalty would
constitute a criminal punishment for double jeopardy pur-
poses under the test the Supreme Court recently announced
in Hudson v. United States, 118 S. Ct. 488 (1997), which
replaced the test previously employed in United States v.
Halper, 490 U.S. 435 (1989).

I

Appellant Arthur Andrews is the chief executive officer,
and appellant Thomas Green is the president, of Fulcrum
Holding Co., Inc., a District of Columbia corporation. An-
drews is Fulcrum's sole shareholder. According to the SEC,
in 1994 Fulcrum offered prospective investors an opportunity
to purchase "prime bank bills of exchange," which it promised
would yield a return of at least 50% by the end of one year.

One such investor was Bayport Holdings, Ltd., which in May
1994 wired Fulcrum $1.5 million for the purchase of prime
bank bills. Instead of using the money to buy an investment
for Bayport, however, the SEC contends that Fulcrum and its
principals used the money for a variety of unrelated purposes,
including the purchase of personal automobiles and jewelry,
and the payment of personal hotel bills. Moreover, Fulcrum
allegedly sent Bayport back some of Bayport's own money,
misrepresenting it as profit on the trading of prime bank
bills, in order to lull Bayport into believing that Fulcrum had
made the promised investment.

On October 31, 1994, the SEC filed a civil complaint against
Fulcrum and Andrews, charging that the prime bank bills
scheme violated the antifraud provisions of the securities
laws. The complaint did not name appellant Green. It
sought injunctive relief, disgorgement of the proceeds of the
illegal conduct, and civil penalties, against both Fulcrum and
Andrews.1

On February 10, 1995, the SEC moved for summary judg-
ment solely against Fulcrum. The district court granted the
motion, and ordered Fulcrum to pay Bayport disgorgement in
the amount of $1.5 million and to pay the SEC a civil penalty
in the amount of $500,000. In response to Fulcrum's repre-
sentation that it had filed for protection under the Bankrupt-
cy Code, the district court suspended Fulcrum's obligation to
pay the disgorgement and penalty amounts pending further
order.

On June 1, 1995, the SEC moved for partial summary
judgment against Andrews, requesting injunctive relief and
disgorgement, but expressly not seeking civil penalties from
him. See Mem. in Supp. of Mot. for Partial Summ. J. at 1
n.1, 12. The district court's final judgment, entered on July

__________
1 The complaint charged violations of Section 17(a) of the
Securities Act of 1933, 15 U.S.C. s 77q(a), Section 10(b) of the
Securities Exchange Act of 1934, 15 U.S.C. s 78j(b), and Rule 10b-
5, 17 C.F.R. s 240.10b-5. It sought civil penalties pursuant to
Section 20(d) of the Securities Act, 15 U.S.C. s 77t(d), and Section
21(d)(3) of the Exchange Act, 15 U.S.C. s 78u(d)(3).

31, 1995, granted the SEC's request for injunctive relief, and
held Fulcrum and Andrews jointly and severally liable for the
payment of $1.5 million in disgorgement to Bayport (plus pre-
and post-judgment interest). The court noted that the SEC
had filed a status report indicating it no longer was seeking
civil penalties from Andrews. Accordingly, the court ordered
Fulcrum alone to pay the $500,000 civil penalty to the SEC.

On April 30, 1996, a grand jury in the District of Columbia
indicted appellants for essentially the same conduct at issue
in the civil suit, charging criminal violations of the federal
mail fraud, wire fraud, and money laundering statutes.2 Ap-
pellants moved to dismiss the indictment on double jeopardy
grounds, arguing that the $500,000 penalty imposed on Ful-
crum constituted prior punishment under the test employed
in United States v. Halper, 490 U.S. 435 (1989); that the
punishment was imposed for the same offense as that charged
in the indictment under the test employed in Blockburger v.
United States, 284 U.S. 299 (1932); and that the punishment
imposed on Fulcrum was effectively a punishment of its
officers, Andrews and Green.

The district court denied appellants' motion. The court did
not consider whether the civil penalty constituted punishment
under Halper, or whether the offenses were the same under
Blockburger. Instead, the court held the Double Jeopardy
Clause inapplicable because "[t]he prohibition against multi-
ple punishments does not attach until a punishment is im-
posed," and because the judge in the SEC action had imposed
the civil penalty only against Fulcrum and not against An-
drews or Green. Andrews and Green immediately appealed
the denial of their motion to dismiss.

II

We must first consider whether we have jurisdiction to
hear this interlocutory appeal. Under the final-judgment
rule, we ordinarily do not have jurisdiction to hear a defen-

__________
2 The indictment charged violations of 18 U.S.C. ss 2, 1341,
1343, 1956, 1957.

dant's appeal in a criminal case prior to conviction and
sentencing. See generally 28 U.S.C. s 1291. In Abney v.
United States, however, the Supreme Court held that a
pretrial denial of a motion to dismiss an indictment on double
jeopardy grounds was immediately appealable under the
" 'collateral order' exception to the final-judgment rule." 431
U.S. 651, 657, 659-62 (1977). Noting that the Double Jeopar-
dy Clause "is a guarantee against being twice put to trial for
the same offense," the Court held that this aspect "of the
guarantee's protections would be lost if the accused were
forced to 'run the gauntlet' a second time before an appeal
could be taken." Id. at 661.

Abney involved the Double Jeopardy Clause's protection
against successive prosecution. But the Supreme Court has
held the Clause to have two prongs: it protects not only
against "successive prosecution," but also against "successive
punishment." Witte v. United States, 515 U.S. 389, 395-96
(1995). See also United States v. Ursery, 116 S. Ct. 2135,
2139 (1996) (quoting United States v. Dixon, 509 U.S. 688, 696
(1993)).3 Appellants here do not allege a violation of the
successive prosecution prong; instead they charge that the
government is seeking to impose a second punishment.

It might be argued that a claim brought under the succes-
sive punishment prong does not require an interlocutory
appeal for its vindication. If appellants ultimately are acquit-
ted, they will not have been punished twice; if they are
convicted, a court can vacate the second punishment on
appeal. Abney itself seemed to give support to such an

__________
3 The Court has described the successive prosecution prong as
protecting against two more distinct abuses: "a second prosecution
for the same offense after acquittal [and] a second prosecution for
the same offense after conviction." North Carolina v. Pearce, 395
U.S. 711, 717 (1969). The prohibition against successive prosecution
protects against a third distinct abuse as well: even without acquit-
tal or conviction, this prong bars a second prosecution for the same
offense if the first prosecution is dismissed after jeopardy has
attached, see Crist v. Bretz, 437 U.S. 28, 35 (1978), where the
dismissal was not caused by "manifest necessity," see United States
v. DiFrancesco, 449 U.S. 117, 130 (1980).

argument, for it noted that the protection against double
punishments, unlike the guarantee against being twice put to
trial, "can be fully vindicated on an appeal following final
judgment." 431 U.S. at 660.

This line of argument, however, was foreclosed by the
Court's subsequent opinion in Witte v. United States, 515 U.S.
389 (1995). There, the Court permitted an interlocutory
appeal alleging that a pending prosecution on cocaine charges
was barred by the successive punishment prong because the
conduct at issue had already been taken into account in
defendant's sentencing for a prior marijuana conviction. The
Court held that the defendant's successive punishment claim
was ripe for review, although he had not yet been convicted
or sentenced on the cocaine charges, because the Clause
protected not just against "more than one punishment for the
same offense" but also against "an attempt to secure that
punishment in more than one trial." 515 U.S. at 397 (empha-
sis added). Accordingly, multiple punishment claims, like
multiple prosecution claims, are appropriate subjects for in-
terlocutory appeal. See United States v. Perez-Herrera, 86
F.3d 161, 163 (10th Cir. 1996); United States v. Baird, 63
F.3d 1213, 1215 & n.4 (3d Cir. 1995); United States v. Woods,
949 F.2d 175, 177 n.1 (5th Cir. 1991).4

But that does not end the matter. A defendant cannot
obtain interlocutory review of a motion to dismiss an indict-
ment simply by characterizing his claim as one involving
double jeopardy. If that were the rule, defendants could
disrupt their trials at will, pending the resolution of appeals.
Instead, the Supreme Court held in Richardson v. United

__________
4 Many other courts have assumed without discussion that
multiple punishment claims may be appealed before final judgment.
See United States v. Reyes, 87 F.3d 676, 678 (5th Cir. 1996); United
States v. Salinas, 65 F.3d 551 (6th Cir. 1995); United States v.
Morgan, 51 F.3d 1105, 1109-10 (2d Cir. 1995); United States v.
Louisville Edible Oil Prods., Inc., 926 F.2d 584 (6th Cir. 1991).
But cf. United States v. Stoller, 78 F.3d 710, 714-15 (1st Cir. 1996)
(noting that, prior to Witte, the First Circuit had held Abney
inapplicable to multiple punishment claims).

States that a claim of double jeopardy must be at least
"colorable" to confer interlocutory jurisdiction on an appellate
court. 468 U.S. 317, 322 (1984). The standard is a lenient
one. Indeed, the Court made clear just how lenient the
standard was in Abney itself where, although it found juris-
diction to hear the defendant's interlocutory appeal, it dis-
posed of defendant's argument on the merits in a single
paragraph. See 431 U.S. at 664-65.

Even under this lenient standard, however, we cannot
describe Green's claim as colorable. He and Andrews con-
tend that the civil penalty imposed on Fulcrum was effective-
ly a prior punishment imposed on Fulcrum's officers. They
claim that the district court in the SEC civil litigation found
Fulcrum to be a mere sham, that that finding makes Ful-
crum's corporate form void, "not merely voidable," and that
as corporate officers they therefore are liable for the judg-
ment.

This novel claim must clear a number of logical hurdles
before it can prevail--hurdles which we explore in Part III
below with respect to Andrews. But whatever this argu-
ment's general difficulties, as applied to Green it fails at the
start. As the face of the pleadings makes clear, Green was
never a party to the SEC civil suit. The complaint did not
name him as a defendant; indeed, it did not mention him at
all.

The constitutional protection against double jeopardy is
"intrinsically personal." Department of Revenue v. Kurth
Ranch, 511 U.S. 767, 779 (1994) (quoting Halper, 490 U.S. at
447). A defendant cannot invoke it to prevent his punishment
on the ground that another already has been punished. See
United States v. Louisville Edible Oil Prods., Inc., 926 F.2d
584, 586 (6th Cir. 1991) (rejecting claim that punishment of
Subchapter S corporation constituted punishment of employ-
ees paid on the basis of the corporation's profits); Woods, 949
F.2d at 177 & n.3 (action against corporation does not consti-
tute punishment of its sole shareholder). As the Supreme
Court said in United States v. MacDonald, "a double jeopar-
dy claim ... requires at least a colorable showing that a

defendant once before has been in jeopardy...." 435 U.S.
850, 862 (1978). Moreover, "[w]ithout risk of a determination
of guilt, jeopardy does not attach...." Serfass v. United
States, 420 U.S. 377, 391-92 (1975).

Green has never been in that position. He owns no stock
in Fulcrum. He neither has been held liable for any mone-
tary penalty, nor has he ever been party to a proceeding in
which he was at risk of being held liable for the penalty
imposed on Fulcrum. Indeed, defense counsel conceded at
oral argument, and the government did not dispute, that
Green was not and cannot be bound by the judgment in the
SEC action against Fulcrum.5 At a minimum, some addition-
al proceeding will be necessary before the corporation's pen-
alty can be imposed on Green--assuming, without deciding,
that such a penalty could be imposed on him at all. He thus
is in no more difficult a position than that of a yet-unindicted
grand jury subject who watches his confederate proceed to
trial. He may be apprehensive about his own fate, but until
he himself goes to trial he cannot claim to have been placed in
jeopardy. See generally United States v. Gartner, 93 F.3d
633, 635 (9th Cir. 1996) (no double jeopardy where defendant
was not jointly and severally liable for civil penalty assessed
in prior proceeding); Baird, 63 F.3d at 1219 (because defen-
dant never became a party to forfeiture proceeding, he never
was placed in jeopardy); United States v. Torres, 28 F.3d
1463, 1465 (7th Cir. 1994) (same).

It is a "fundamental principle that an accused must suffer
jeopardy before he can suffer double jeopardy." Serfass, 420
U.S. at 393. Because Green never has "suffered jeopardy,"

__________
5 As the Supreme Court stated in Martin v. Wilks, "[i]t is a
principle of general application ... that one is not bound by a
judgment in personam in litigation in which he is not designated as
a party." 490 U.S. 755, 761 (1989) (internal citation and quotations
omitted), superseded by statute on other grounds. See 18 Charles
A. Wright, et al., Federal Practice and Procedure s 4449, at 411
(1981). Appellants do not suggest that any of the limited exceptions
to this general rule would apply here. See Martin, 490 U.S. at 761
n.2.

his claim of double jeopardy is not colorable. Accordingly, we
dismiss his appeal for lack of jurisdiction.

Andrews presents a more complicated story. Unlike
Green, the SEC did file a civil complaint against him and did,
at least initially, seek the imposition of a civil penalty against
him. Moreover, as the sole shareholder and chief executive
officer of Fulcrum, he is not an unlikely target for liability
through piercing of the corporate veil, and the SEC action
has at least increased the chance that one day he will be held
liable. Hence, even if punishment has not yet been imposed,
we cannot dismiss as non-colorable the possibility that it has
been attempted in the Witte sense. Given the lenient stan-
dard employed by the Supreme Court for finding interlocu-
tory jurisdiction, we must proceed to the merits of Andrews'
claims.

III

As already noted, the Supreme Court has held the Double
Jeopardy Clause to possess two prongs, protecting against
both multiple prosecutions and multiple punishments. In
Halper, the Supreme Court held that the protection against
multiple punishments was triggered where a civil sanction
was so "overwhelmingly disproportionate" to the damages the
defendant caused that it could not "fairly be characterized as
remedial, but only as a deterrent or retribution." 490 U.S. at
449.

Invoking Halper's formulation of the protection against
multiple punishments, Andrews argues that the civil money
penalty imposed on Fulcrum constituted punishment for his
allegedly fraudulent activities relating to Bayport and that
the Double Jeopardy Clause therefore bars his criminal pros-
ecution. Apparently because of our decision in SEC v. Bilze-
rian, 29 F.3d 689, 696 (D.C. Cir. 1994), holding that under
Halper disgorgement of ill-gotten gains in an action brought
by the SEC is remedial rather than punitive, Andrews does
not argue that the disgorgement remedy here was punitive.
Instead, he argues that because the money penalty was

exacted on top of disgorgement, the punitive nature of that
penalty is manifest.

Like the district court, we do not determine whether the
SEC civil money penalty constituted a prior criminal punish-
ment, or whether under Blockburger it covered the same
offenses as the indictment. Our consideration of the prior
punishment issue would be particularly problematic at this
stage, since after this court heard oral argument, the Su-
preme Court issued its opinion in Hudson v. United States,
118 S.Ct. 488 (1997). There, the Court disavowed Halper's
conclusion that punishment, rather than criminal punish-
ment, could trigger the Double Jeopardy Clause. 118 S.Ct.
at 493-94. To determine whether criminal punishment was
at issue, the Court focused not just on whether a prior
penalty was proportional to a victim's injury, but rather on
the multi-factor test it previously had employed in United
States v. Ward, 448 U.S. 242 (1980), and Kennedy v. Mendo-
za-Martinez, 372 U.S. 144 (1963). See 118 S.Ct. at 491, 493-
96. Although there are striking similarities between the
sanctions the Office of Comptroller of the Currency imposed
in Hudson, which the Court declined to characterize as
criminal, and the SEC civil money penalty sought in this
case,6 that issue was never briefed in this court and we are
loath to proceed without the views of the parties.

In any event, we find no need to consider the Hudson/Hal-
per or Blockburger issues because we find that Andrews--like
Green--suffered no prior jeopardy, and hence could not have
suffered double jeopardy. The district court reached this
conclusion by finding that no punishment had yet been im-
posed on Andrews. We agree that no punishment has yet
been imposed although, as noted in Part IV infra, we are not
certain that necessarily disposes of the issue.

Andrews has two arguments in support of the claim that he
already has been punished. His first requires three steps:
(1) the district court in the SEC litigation "has already" found

__________
6 See SEC v. Palmisano, 135 F.3d 860, 865-66 (2d Cir. 1998)
(applying Hudson's analysis to hold that SEC civil monetary penal-
ties are not criminally punitive).

Fulcrum "to be merely a cloak for fraud"; (2) therefore, the
corporate form is void, "not merely voidable"; and (3) there-
fore, the judgment imposed on Fulcrum "immediately became
a liability of the defendants." See Appellants' Br. at 6, 10,
12.7 We need not examine the validity of the second and
third steps, because the premise is factually incorrect. The
district court did not find that Fulcrum was a sham. To the
contrary, the court paid obeisance to the corporate form,
accepting Fulcrum's representation that it had filed for bank-
ruptcy protection and suspending payment of the judgment
pending further proceedings. Indeed, the court made virtual-
ly no findings at all. Because Fulcrum refused to answer the
complaint, citing purported Fifth Amendment concerns, the
district court treated the SEC's allegations as conceded and
entered judgment accordingly.

But, Andrews contends, because the SEC had alleged that
Fulcrum was merely a cloak for the fraudulent activities of its
officers, the court effectively adopted that allegation by treat-
ing it as conceded. Again, Andrews' problem is with his
factual premise. The SEC did not allege, as Andrews as-
serts, that Fulcrum was merely a "fraudulent enterprise
aimed at wealthy investors." Appellants' Br. at 12. That
quotation leaves out some important words from the SEC's
original sentence--which is found not in the complaint but in
an SEC memorandum in support of temporary relief. The
full sentence alleges that Fulcrum "embarked on a fraudulent
enterprise aimed at wealthy investors." Pl. Mem. in Supp. of

__________
7 Andrews does not argue that a sole or controlling shareholder
of a bona fide corporation would be punished for double jeopardy
purposes if punishment were imposed upon his corporation. Such
an argument was rejected by the Fifth Circuit in Woods, on the
ground that "[a]bsent individual liability, there [is] no claim for
double jeopardy." 949 F.2d at 177 n.3. A similar argument made on
behalf of employees of a Subchapter S (26 U.S.C. s 1361 et seq.)
corporation was rejected by the Sixth Circuit in Louisville Edible
Oil Products, on the ground that the theory would extend protec-
tion from prosecution to any individual who receives income on a
percentage-of-profit basis from any entity if the entity were pun-
ished. See 926 F.2d at 586.

Temp. Relief at 2 (emphasis added). That plainly is not an
allegation about what Fulcrum was, but about what it did.
The difference between being a fraud and conducting one is
important. Even a fully-capitalized, Fortune 500 corporation
can embark on a fraud, but that would not make its corporate
form a sham or its shareholders personally liable.

Andrews' second argument in support of the notion that he
has been punished is that even if the government has never
sought to pierce the corporate veil, "in this jurisdiction" he
has as much right to pierce it as the government does. For
this proposition, Andrews cites our opinion in Quinn v. Butz,
510 F.2d 743 (D.C. Cir. 1975).

This argument suffers from a number of significant flaws.
Although Quinn does hold that penetration of the corporate
veil can be urged against as well as by the government, we
emphasized there that "the ultimate principle is one permit-
ting its use to avoid injustice." 510 F.2d at 759. Avoiding
"injustice" is not the same as avoiding indictment. The
injustice Andrews claims here is that, unless the veil is
pierced, he will be subject to double jeopardy. In fact,
Andrews has the point backwards. Even on his own theory,
he will confront the possibility of double jeopardy only if the
veil is pierced. If it is not, he will not be liable for Fulcrum's
penalty and hence will not have been subjected to prior
jeopardy.

Moreover, Andrews' asserted right to pierce the veil runs
counter to the rule that piercing the corporate veil is an
equitable remedy, whose exercise is subject to the sound
discretion of the trial judge. See Valley Fin., Inc. v. United
States, 629 F.2d 162, 171-72 (D.C. Cir. 1980); see also Kinney
Shoe Corp. v. Polan, 939 F.2d 209, 211 (4th Cir. 1991). In
Quinn, for example, the court entertained the possibility of
piercing against the government only because it feared the
corporate form may have operated at an "innocent party's
expense." 510 F.2d at 758. But if Fulcrum is a sham, it is
because Andrews, as its sole shareholder and chief executive
officer, made it one in order to facilitate his fraudulent
scheme. Under such circumstances, Andrews cannot don the

mantle of an innocent party in order to pierce the cloak of his
own fraud.

Finally, even if Quinn applied here, the veil would at best
be "pierce-able"; it has not yet been "pierced." See Quinn,
510 F.2d at 760 (petitioner entitled "to an opportunity to show
that the company was not in truth a corporation"). Nor is
Andrews quite so eager to pierce the veil as his briefs would
suggest. At oral argument, the court asked Andrews' counsel
whether his client actually concedes that Fulcrum was a
sham. Counsel demurred. He was not, he said, authorized
to make such a concession. But in the context of Andrews'
argument, this is not a concession--it is a cornerstone. An-
drews, apparently, would like to have his cake and eat it too:
he would like to pierce the veil for the purpose of dismissing
the present indictment, but preserve it as a defense in case
the SEC ever does try to collect. We reject this argument
and conclude that no criminal punishment has yet been
imposed on appellant Andrews.8

IV

Andrews' brief states his agreement with the "undisputed
proposition, that a punishment must be imposed in the first
proceeding before jeopardy can attach." Appellants' Br. at
13. As discussed in Part III, if Andrews is correct about this
proposition, then his appeal must fail because no punishment
has yet been imposed upon him.

We are not certain, however, that Andrews is correct.
After all, we have Witte's admonition that the Double Jeopar-
dy Clause protects not just against multiple punishments, but

__________
8 Because Andrews cannot even establish that the civil judg-
ment imposed any obligation upon him, we need not consider
whether a judgment alone would have been enough to constitute the
imposition of punishment where the penalty has not only not yet
been paid, but has been suspended pending bankruptcy proceed-
ings. Cf. United States v. Sanchez-Escareno, 950 F.2d 193, 201
(5th Cir. 1991) (holding that an unpaid judgment does not constitute
punishment, even where the defendant executes a promissory note
to pay it).

against multiple attempts to punish. See Witte, 515 U.S. at
396; see also Kansas v. Hendricks, 117 S. Ct. 2072, 2085
(1997) (citing Witte ). Indeed, in Hudson, the Court not only
repeated this admonition, it used it to support its conclusion
that Halper had applied the wrong analysis. Halper had
directed courts to look at the "sanction actually imposed" in
order to determine whether it was so disproportionate as to
be punitive. The consequence of this direction, the Hudson
Court said, was that it would "not be possible to determine
whether the Double Jeopardy Clause is violated until a
defendant has proceeded through a trial to judgment." 118
S. Ct. at 495. But that, the Court charged, "flies in the face
of the notion that the Double Jeopardy Clause forbids the
government from even attempting a second time to punish
criminally." Id. (internal quotations and citations omitted).

We need not linger over this problem because not only was
no punishment imposed upon Andrews, none was attempt-
ed--at least not in any constitutional sense. For purposes of
the multiple prosecutions prong of the Double Jeopardy
Clause, an attempt does not attain constitutional significance
until jeopardy has attached. See Serfass, 420 U.S. at 390-92.
This accords with the language of the Clause itself, which
bars neither "attempts" nor "prosecutions," but rather pro-
hibits being "twice put in jeopardy" for the same offense. In
a criminal trial, jeopardy does not attach until a jury is
empaneled and sworn or, in a non-jury trial, until the court
begins to hear evidence. See id. at 388. The underlying
principle is that "jeopardy does not attach, and the constitu-
tional prohibition can have no application, until a defendant is
'put to trial before the trier of facts, whether the trier be a
jury or a judge.' " Id. (citation omitted).

Although the Supreme Court has not had occasion to
consider when jeopardy might attach outside the context of a
criminal trial, or whether the timing of attachment is differ-
ent for the multiple punishments prong as compared to the
multiple prosecutions prong, no court has concluded that
attachment in such circumstances should come any earlier
than it would in a criminal trial. To the contrary, some

courts have held it to come at an analogous time,9 while
others have found it to come considerably later.10

There are two stages of the civil SEC proceedings that one
might loosely characterize as "attempts" to impose punish-

__________
9 See Torres, 28 F.3d at 1465 (jeopardy attaches in civil forfei-
ture hearing when evidence is first presented to trier of fact); cf.
Sanchez-Escareno, 950 F.2d at 201 (jeopardy attaches in action to
collect on notes when court begins to hear evidence).

After Hudson there is further reason to conclude that courts
should treat criminal trials and other proceedings that may lead to
double jeopardy in a similar way. The holding of Hudson, after all,
was not that the sanction imposed was civil rather than criminal,
but that the prior "administrative proceedings were civil, not crimi-
nal." 118 S. Ct. at 491 (emphasis added). See also id. at 496 n.6
(favorably citing Kurth Ranch, 511 U.S. at 781, for focusing on
whether the alleged punishment was "the functional equivalent of a
successive criminal prosecution"). Hence, the "attempting a second
time to punish criminally" proscription may not be a subsidiary
element of the multiple punishments prong, but rather a more
generalized restatement of the multiple prosecutions prong: that is,
double jeopardy protects against multiple punishments, and against
multiple attempts to impose criminal punishments--regardless
whether such attempts occur in the form of criminal trials or other
kinds of proceedings. See also Witte, 515 U.S. at 396 (appearing to
equate "attempting a second time to punish criminally" with "being
twice put in jeopardy for such punishment"). If the "attempts"
proscription is just a restatement of the multiple prosecutions
prong, then there would be good reason to apply as similar as
possible "attachment" rules regardless whether the attempt occurs
in a criminal trial or otherwise.

10 See, e.g., United States v. Tamez, 881 F. Supp. 460, 465-66
(E.D. Wash. 1995) (jeopardy does not attach in civil forfeiture
proceedings until final judgment is entered), aff'd, 95 F.3d 1160 (9th
Cir. 1996) (table); United States v. Polichemi, 1995 WL 387833
(N.D. Ill. 1995) (prohibition against multiple punishments does not
attach in SEC civil action until civil penalty is imposed); cf. United
States v. Von Moos, 660 F.2d 748, 749 (9th Cir. 1981) (jeopardy on
multiple punishments claim involving multiple sentences does not
attach until defendant begins serving sentence).

ment here. But even if we were to apply an analogy to the
attachment of jeopardy in a criminal trial, neither was suffi-
ciently advanced to constitute attachment.

The first possible "attempt" was the filing of the SEC's
complaint, which named Andrews and sought penalties from
him. The closest criminal trial analogy would be to an
indictment. But the filing of an indictment does not create
jeopardy. As we have noted, a jury must be empaneled or a
judge must begin to hear evidence on the charge before
attachment occurs. See Serfass, 420 U.S. at 388-89. Neither
happened here. Evidently awakening--somewhat belatedly,
but still in time--to the possibility that it was creating a
"Halper " problem for future criminal prosecutors, the SEC
withdrew its request for civil penalties against Andrews be-
fore it ever presented evidence in support of that request.

Alternatively, one might characterize the judgment against
Fulcrum as an initial step in an "attempt" to hold Andrews
personally responsible for the monetary penalty. But this
step has not put Andrews at personal risk of paying that
penalty. Because the SEC civil action ended in a final
judgment that did not include a penalty against Andrews, a
new proceeding would still be required before the SEC could
collect anything from him. A complaint in that new proceed-
ing, and further action on that complaint, would thus be the
earliest stage at which jeopardy could attach. Cf. United
States v. Sanchez-Escareno, 950 F.2d 193, 203 (5th Cir. 1991)
(although defendants executed promissory notes in acknowl-
edgment of punitive civil fines, jeopardy would not attach
until government tried to collect on notes and "court begins
to hear evidence in that action").

In sum, we conclude that even were an "attempts" analysis
appropriate here, the SEC action simply did not progress
sufficiently against Andrews to constitute an attempt to im-
pose criminal punishment for purposes of the Double Jeopar-
dy Clause.

V

We dismiss Green's appeal for lack of jurisdiction because
it does not present a colorable claim of double jeopardy.

Andrews' appeal, while colorable, fails on the merits, and we
therefore affirm the district court's denial of his motion to
dismiss the indictment.