United States v. Daryl Bank, 965 F.3d 287

In April 2015 the SEC sued Daryl G. Bank in the District of Arizona alleging fraudulent offers and sales of securities tied to FCC licenses.
In January 2017 Bank entered a consent decree (no admission/denial) that included a clause waiving "any claim of Double Jeopardy based upon the settlement . . . including the imposition of any remedy or civil penalty."
In February 2018 the Arizona court entered final judgment ordering disgorgement of $4,494,900, prejudgment interest, and a civil penalty in the same amount under the securities statutes.
In May 2018 a federal grand jury in the Eastern District of Virginia returned a superseding indictment charging Bank with mail fraud, wire fraud, and securities-law offenses based in part on the same conduct.
Bank moved to dismiss the indictment on Double Jeopardy grounds, relying on Kokesh (which held disgorgement is a "penalty" for statute-of-limitations purposes); the district court denied the motion and the Fourth Circuit affirmed.
The majority held disgorgement in an SEC civil enforcement is not a "criminal penalty" for Double Jeopardy purposes (declining to rely on the consent-waiver); a concurrence would have affirmed on waiver grounds.

Issue	Plaintiff's Argument (Bank)	Defendant's Argument (United States/SEC)	Held
Whether Bank knowingly and validly waived the right to assert a Double Jeopardy defense by signing the Consent Agreement	The waiver clause is insufficiently clear after Kokesh and Bank did not knowingly relinquish a constitutional right	The Consent Agreement explicitly waived "any claim of Double Jeopardy based upon the settlement," so Bank forfeited the claim	Majority: waiver not dispositive (ambiguous and changed context after Kokesh); Concurrence: waiver valid and would affirm on that ground
Whether SEC disgorgement constitutes a "criminal penalty" that bars subsequent criminal prosecution under the Double Jeopardy Clause	Kokesh shows disgorgement is punitive and therefore is a criminal sanction triggering Double Jeopardy	Kokesh was limited to statute-of-limitations analysis; applying Hudson's two-step test and seven factors, disgorgement remains a civil remedy for Double Jeopardy purposes	Held: disgorgement is a civil penalty, not a criminal punishment for Double Jeopardy; conviction not barred

Kokesh v. Securities & Exchange Comm'n, 137 S. Ct. 1635 (2017) (held SEC disgorgement is a "penalty" for §2462 statute-of-limitations purposes; did not decide Double Jeopardy)
Hudson v. United States, 522 U.S. 93 (1997) (two-step test and seven-factor inquiry to decide whether a civil sanction is actually criminal for Double Jeopardy)
United States v. Dyer, 908 F.3d 995 (6th Cir. 2018) (post-Kokesh: Kokesh did not supply the "clearest proof" to convert disgorgement into criminal punishment for Double Jeopardy)
United States v. Melvin, 918 F.3d 1296 (11th Cir. 2019) (applied Hudson and rejected Double Jeopardy bar to civil SEC remedies)
SEC v. Palmisano, 135 F.3d 860 (2d Cir. 1998) (disgorgement treated as equitable relief; applied Hudson-style analysis)
United States v. Van Waeyenberghe, 481 F.3d 951 (7th Cir. 2007) (found waiver language insufficiently specific and treated disgorgement as equitable)
SEC v. Bilzerian, 29 F.3d 689 (D.C. Cir. 1994) (characterized disgorgement as an equitable remedy to strip ill-gotten gains)
United States v. Gartner, 93 F.3d 633 (9th Cir. 1996) (deterrent purpose alone does not convert a civil remedy into criminal punishment)