{ "id": 8524666, "name": "In re: RUSSELL A. COBB, JR., D.C., Petitioner", "name_abbreviation": "In re Cobb", "decision_date": "1991-04-02", "docket_number": "No. 9018SC834", "first_page": "466", "last_page": "469", "citations": [ { "type": "official", "cite": "102 N.C. App. 466" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 90-154", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)(2)" } ], "opinion_index": -1 }, { "cite": "18 U.S.C. \u00a7 1343", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": -1 }, { "cite": "303 U.S. 391", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6141190 ], "weight": 2, "year": 1938, "pin_cites": [ { "page": "399" }, { "page": "922" } ], "opinion_index": 0, "case_paths": [ "/us/303/0391-01" ] }, { "cite": "160 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "282" } ], "opinion_index": 0 }, { "cite": "273 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575623 ], "year": 1968, "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0475-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90454", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "299" } ], "opinion_index": 0 }, { "cite": "18 U.S.C. \u00a7 2113", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "346 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "273" }, { "page": "300" }, { "page": "273-74" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358807 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/82/0299-01" ] }, { "cite": "474 U.S. 82", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6198785 ], "weight": 6, "year": 1985, "pin_cites": [ { "page": "92" }, { "page": "396" }, { "page": "89" }, { "page": "394" }, { "page": "89" }, { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/us/474/0082-01" ] }, { "cite": "490 U.S. 435", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605295 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "440" }, { "page": "496" }, { "page": "448-49" }, { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/us/490/0435-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-154", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "18 U.S.C. \u00a7 1343", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 420, "char_count": 7136, "ocr_confidence": 0.764, "pagerank": { "raw": 2.1266542374778147e-07, "percentile": 0.7652755044792187 }, "sha256": "3c51b5ee6e206979ff0c21a3136bc189e06308b80f24fc0f88d5d541438bc3e0", "simhash": "1:1b4a3172f4b6e613", "word_count": 1164 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Parker concur." ], "parties": [ "In re: RUSSELL A. COBB, JR., D.C., Petitioner" ], "opinions": [ { "text": "ORR, Judge.\nOn appeal, petitioner assigns as error the Board\u2019s decision rendering a disciplinary sanction of a five-year license suspension suspended with probation and a 90-day active suspension. Petitioner contends this sanction constitutes punishment for his violation of 18 U.S.C. \u00a7 1343 and violates the constitutional prohibition against double jeopardy on the grounds that he has already been punished for these federal crimes. U.S. Const, amend. V; N.C. Const, art. I, \u00a7 19. We disagree.\nThe scope of our review is governed by the North Carolina Administrative Procedure Act which provides that a reviewing court may reverse an agency\u2019s decision if the agency decision has prejudiced \u201csubstantial rights\u201d because it is \u201cin violation of constitutional provisions.\u201d N.C. Gen. Stat. \u00a7 150B-51(b)(l) (1987).\nThe prohibition against double jeopardy protects against \u201cmultiple punishments for the same offense.\u201d United States v. Halper, 490 U.S. 435, 440, 104 L.Ed.2d 487, 496 (1989). The U.S. Supreme Court has held that \u201ctwo identical offenses are not the \u2018same of-fence\u2019 within the meaning of the Double Jeopardy Clause if they are prosecuted by different sovereigns.\u201d Heath v. Alabama, 474 U.S. 82, 92, 88 L.Ed.2d 387, 396 (1985). \u201c[T]he States are separate sovereigns with respect to the Federal Government.\u201d Id. at 89, 88 L.Ed.2d at 394.\nIn State v. Myers, 82 N.C. App. 299, 346 S.E.2d 273 (1986), the defendant was convicted of violating 18 U.S.C. \u00a7 2113(d) and was indicted for the same robbery in violation of N.C. Gen. Stat. \u00a7 14-87. This Court held that the offense for which the defendant was being prosecuted was not the \u201csame offense\u201d he had been punished for in federal court where he was convicted of violating federal law. Id. at 299, 346 S.E.2d at 273. This Court stated:\nThough the act committed is the same in both cases, the offense is not. In its legal signification, of course, an offense, or crime, is not merely a bad act of some kind, it is the violation of a law. All sovereign states, and it is fundamental to our system of government that the United States of America and the various states are separate, distinct sovereign states, have the power to enact laws and prosecute those who violate them; and it is no bar to a prosecution that the offender has already been punished for the same act by another sovereign. [Citations omitted.]\nId. at 300, 346 S.E.2d at 273-74.\nHere petitioner was first convicted of violating federal law and then was sanctioned pursuant to N.C. Gen. Stat. \u00a7 90-154 (1990). Petitioner argues that Myers does not apply on the grounds that his conviction under the federal statute itself is the grounds for the sanction pursuant to N.C. Gen. Stat. \u00a7 90-154 and thus the State is \u201cpiggy-backing on a Federal investigation and proceeding, and enhancing the defendant\u2019s punishment.\u201d Petitioner argues that \u201cwhen the Sovereignty of North Carolina has borrowed from the Sovereignty of the United States by using a violation of the U.S. Code as a basis for a State sentence, then the State clearly subjects itself to the issue of double jeopardy, regardless of the existence of separate sovereigns.\u201d Petitioner cites no authority for this contention, and as stated above, a state is a separate sovereign from the federal government. See Heath, 474 U.S. at 89, 88 L.Ed.2d at 394.\nUnder N.C. Gen. Stat. \u00a7 90454(b), the Board of Chiropractic Examiners may impose sanctions where a practitioner has been \u201cconvict[ed] of a felony or of a crime involving moral turpitude.\u201d Thus, \u00a7 90-154 provides disciplinary sanctions for the conviction of any felony. Title 18, U.S.C. \u00a7 1343 sets forth the penalty for the transmission by wire in interstate commerce to further a scheme to obtain money by false pretenses. Here, not only are the \u201coffenses\u201d not identical, but, more importantly, as stated above, two separate sovereigns are involved.\nFurthermore, our Supreme Court has held that where a defendant had been punished under prison rules for escape and then was convicted of felonious escape and sentenced, there was no double jeopardy violation since the prison rules involved were \u201cadministrative and not judicial.\u201d State v. Shoemaker, 273 N.C. 475, 477, 160 S.E.2d 281, 282 (1968). Although the U.S. Supreme Court has held \u201cthat under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution,\u201d Halper, 490 U.S. at 448-49, 104 L.Ed.2d at 502, the disciplinary sanction in the present case does not amount to \u201cpunishment\u201d but instead is remedial. In Helvering v. Mitchell, 303 U.S. 391, 399, 82 L.Ed. 917, 922 (1938), the U.S. Supreme Court stated that \u201crevocation of a privilege voluntarily granted\u201d is \u201ccharacteristically free of the punitive criminal element\u201d and is remedial.\nWe conclude that a conviction under a federal statute followed by disciplinary sanctions pursuant to a state statute for the same conduct does not violate the double jeopardy clause.\nAffirmed.\nJudges Johnson and Parker concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "Harris and lorio, by John S. lorio and Douglas S. Harris, for petitioner-appellant.", "Vance C. Kinlaw for respondent-appellant." ], "corrections": "", "head_matter": "In re: RUSSELL A. COBB, JR., D.C., Petitioner\nNo. 9018SC834\n(Filed 2 April 1991)\nConstitutional Law \u00a7 172 (NCI4th)\u2014 conviction under federal statute \u2014 subsequent disciplinary sanction under state statute \u2014 no double jeopardy\nA conviction under a federal statute followed by disciplinary sanctions by the Board of Chiropractic Examiners pursuant to a state statute for the same conduct does not violate the double jeopardy clause. N.C.G.S. \u00a7 90-154(b)(2).\nAm Jur 2d, Criminal Law \u00a7 249; Physicians, Surgeons, and Other Healers \u00a7 74.\nAPPEAL by petitioner from judgment entered 17 May 1990 by Judge William H. Freeman in GUILFORD County Superior Court. Heard in the Court of Appeals 14 February 1991.\nOn 3 October 1988, petitioner entered a guilty plea to three counts of wire fraud in violation of 18 U.S.C. \u00a7 1343. On 13 October 1988, Darrell A. Trull, D.C., filed a disciplinary complaint with the North Carolina Board of Chiropractic Examiners charging petitioner with a violation of N.C. Gen. Stat. \u00a7 90-154(b)(2). On 29 May 1989, petitioner entered a plea of guilty to the violation. Following a hearing, the Board concluded that a violation of 18 U.S.C. \u00a7 1343 \u201cconstitutes \u2018conviction of a felony\u2019 within the meaning of G.S. 90-154(b)(2)\u201d and thus he was found guilty of violating \u00a7 90454(b)(2). The Board ordered a disciplinary sanction of a five-year license suspension but suspended this sanction and placed petitioner on probation with a 90-day active suspension.\nPetitioner filed this petition for judicial review of the Board\u2019s decision. He simultaneously filed for and was granted a temporary restraining order staying the enforcement of the Board\u2019s decision, which was periodically extended by stipulation of the parties pending judicial review. The trial court affirmed the Board\u2019s decision.\nFrom this judgment, petitioner appeals.\nHarris and lorio, by John S. lorio and Douglas S. Harris, for petitioner-appellant.\nVance C. Kinlaw for respondent-appellant." }, "file_name": "0466-01", "first_page_order": 496, "last_page_order": 499 }