Sunday, July 14, 2013

Case o' The Week: Mr. Green Has Not Yet Arrived - Apprendi and Restitution

“Forget life and liberty. This appeal concerns another precious thing we take from criminal defendants: their money.” United States v. Gerald Green, 2013 3467098 (9th Cir. July 11, 2013), decision available here.

Players: Decision by CJ Kozinski, joined by Judges McKeown and M. Smith.

Facts: Gerald and Patricia Green were movie industry veterans that won contracts to run the Bangkok International Film Festival. Id. at *1. The festival was in the – green – during their four years at the helm. Id. Unfortunately, the Greens earned their contracts by paying 13% of their value – about $1.8 million – to the governor of Thailand and his friends. Id. A snitch tipped off the FBI, the Greens were convicted, given six months in custody, and the district court imposed a $250,000 order. Id. “The Greens’ appeal concerns only the restitution.” Id.

Issue(s): “Defendants Gerald and Patricia Green claim the district court violated Apprendi, when it ordered them to pay restitution without a jury's finding that there was ‘an identifiable victim or victims’ who suffered a ‘pecuniary loss’—findings required to trigger restitution under the Mandatory Victims Restitution Act. Though our caselaw holds that Apprendi doesn’t apply to restitution orders, the Greens invite us to distinguish our cases or else overrule them in light of the Supreme Court's recent decision in Southern Union Co. v. United States, ––– U.S. ––––, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012).” Id. at *1 (citation omitted). “To impose restitution under the Mandatory Victims Restitution Act (MVRA), there must be a showing that an identifiable victim or victims has suffered a physical injury or pecuniary loss.” Id. (citations omitted) . . . . “[T]he jury never had a chance to make these findings, as there was no special verdict.” . . . Because the findings triggering restitution weren’t made by the jury, we must decide whether Apprendi applies.” Id.

Held: [In Southern Union] Defendant objected that he had been convicted of just one day’s violation [of a conservation law], so any fact resulting in a fine over the daily maximum had to be found by a jury. The Supreme Court agreed, applying Apprendi to criminal fines. . . .  Southern Pacific provides reason to believe Apprendi might apply to restitution.” [But, even if Southern Pacific] “chips away at the theory behind our restitution cases, it’s not ‘clearly irreconcilable’ with our holdings that restitution is ‘unaffected’ by Apprendi.” Id. at *3 (internal citations and quotations omitted).

Of Note: CJ Kozinski cues the en banc call more clearly than we can: “Our precedents are clear that Apprendi doesn't apply to restitution, but that doesn't mean our caselaw's well-harmonized with Southern Union. Had Southern Union come down before our cases, those cases might have come out differently. Nonetheless, our panel can't base its decision on what the law might have been. Such rewriting of doctrine is the sole province of the court sitting en banc. Faced with the question whether Southern Union has “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable,” we can answer only: No.” Id. at *5.

How to Use: Fair to assume that the Greens will submit a petition for rehearing en banc. As that perks forward, wrestle with the tricky question of how to preserve an Apprendi objection to restitution, without being hammered with prophylactic jury instructions and special findings. See id. at *1 (describing what was not found by the jury in the Green case – and what presumably will be required when the Ninth en banc court applies Apprendi to restitution).
For Further Reading: Andrew Cohen got it precisely right. A legal analyst that writes for The Atlantic, Mr. Cohen has written a compelling piece on the devastating impact of sequestration on Federal Defenders. See How the Sequester is Holding Up Our Legal System, article available here.  The article links to a Defender Fact Sheet that explains just why these cuts will, ironically, cost the taxpayer so much more than what is saved, see link here.

Steven Kalar, Federal Defender N.D. Cal. FPD. Website at


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