The Supreme Court on Wednesday appeared to reject arguments by a former banker that the government may not fine him and criminally prosecute him for the same offense.
"There is no danger here of vindictiveness or due process concerns," Justice Sandra Day O'Connor said, adding that the court rarely restricts the ability to file civil suits.
The U.S. Court of Appeals for the 10th Circuit in Hudson v. U.S. rejected double jeopardy charges, saying the government was using civil money penalties to recoup the costs of its investigation into illegal insider lending among top officials at several Oklahoma banks.
John Hudson's lawyer, Bernard J. Rothbaum, attacked the appeals court ruling, telling the justices that the law does not permit the Office of the Comptroller of the Currency to recoup the costs of its investigation. Therefore, the government should not be allowed to use this defense to defeat a double jeopardy claim.
But Deputy Solicitor General Michael R. Dreeben compared civil money penalties to the civil assets forfeiture laws. Just as the government may seize a car and prosecute the individual for dealing drugs, it may assess civil money penalties and prosecute a banker for making illegal loans.
Justice John Paul Stevens said double jeopardy does not appear to be an issue because the OCC alleged a violation of its rules and the Justice Department charged a violation of criminal statutes. Justice Antonin Scalia, however, appeared to side with the bankers. "When is double punishment not double punishment?" he asked.
The case dates back to the early 1980s. Mr. Hudson became chairman of several banks in Oklahoma, including First National Bank of Tipton and First National Bank of Hammon. He recruited Larry Baresel and Jack Butler Rackley to serve on the boards of directors.
The OCC criticized the bank in 1986 and 1987 for making $900,000 in loans to Mr. Hudson. The cash was used to repurchase bank stock that Mr. Hudson had used for a loan he defaulted on.
The regulators assessed a $100,000 civil money penalty against Mr. Hudson and $50,000 penalties against the two directors. It also banned them from banking. They eventually settled, agreeing to the ban and to a total of $44,000 in fines.
Then the Justice Department in 1992 charged the three with conspiracy to misapply bank funds and making false bank entries. The bankers asked a federal judge to dismiss the indictment, saying the constitutional ban on double jeopardy bars the government from punishing them with a civil action and a criminal one.