United States v. Green

• Decision Date: 11 July 2013
• Docket Number: 10–50524.,Nos. 10–50519,s. 10–50519
• Citation: 722 F.3d 1146
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gerald GREEN, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Patricia Green, Defendant–Appellant, Jeffrey F. Allen, Movant.
• Court: U.S. Court of Appeals — Ninth Circuit

722 F.3d 1146

UNITED STATES of America, Plaintiff–Appellee,

v.Gerald GREEN, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Patricia Green, Defendant–Appellant,Jeffrey F. Allen, Movant.

Nos. 10–50519, 10–50524.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Jan. 9, 2013.

Filed July 11, 2013.

Harold J. Krent (argued), Chicago–Kent College of Law, Chicago, IL; Marilyn E. Bednarski, Kaye, McLane & Bednarski, LLP, Pasadena, CA, for Defendants–Appellants.

Scott A.C. Meisler (argued), Criminal Division, Appellate Section, Lanny A. Breuer, Assistant Attorney General, John D. Buretta, Acting Deputy Assistant Attorney General, United States Department of Justice, Washington, D.C.; Andre Birotte, Jr., United States Attorney, Los Angeles, CA, for Plaintiff–Appellee.

Steve Cochran, Katten Muchin Rosenman, LLP, Los Angeles, CA, for Movant Jeffrey F. Allen.

Appeals from the United States District Court for the Central District of California, George H. Wu, District Judge, Presiding. D.C. Nos. 2:08–cr–00059–GW–1, 2:08–cr–00059–GW–2.

Before: ALEX KOZINSKI, Chief Judge, M. MARGARET McKEOWN and MILAN D. SMITH, JR., Circuit Judges.

OPINION

KOZINSKI, Chief Judge:

Forget life and liberty. This appeal concerns another precious thing we take from criminal defendants: their money.

Defendants Gerald and Patricia Green claim the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), 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).

Facts

Gerald and Patricia Green sure knew how to put on a show. Movie industry veterans, the husband-and-wife team won a slew of contracts from the Tourism Authority of Thailand to run the Bangkok International Film Festival and to direct other promotional projects. The film festival, the largest of the contracts, flourished during the Greens' four years at the helm, generating large profits—$140 million by one marketing firm's estimates—and ranking among the top 15 film festivals in the world. More than 1600 journalists attended the events in 2006, when one industry insider predicted the festival “will become the Cannes Film Festival of the East within a year or two.”

The Greens looked to be on their way to silver-screen success, but there was a dark secret that would get in the way: The Greens had secured their lucrative contracts thanks, at least in part, to $1.8 million in payments to the governor of Thailand's Tourism Authority. The Greens sometimes paid the governor directly, other times through the governor's daughter or one of the governor's friends. In all, the illicit payments amounted to roughly 13 percent of the total value of the Greens' contracts.

In 2006, a confidential informant alerted the FBI to these payments, leading to a year-long investigation and a 22–count indictment on Foreign Corrupt Practices Act (FCPA), money laundering, conspiracy and tax charges. The Greens were convicted by a jury. At sentencing, the district court imposed six months' imprisonment, three years' supervised release and $250,000 in restitution, for which Gerald and Patricia are jointly and severally liable.

The Greens' appeal concerns only the restitution.

Discussion

I. Restitution's Triggers

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.” 18 U.S.C. § 3663A(c)(1)(B).¹ The district judge found there was a victim and that “[t]echnically ... there [was] a loss in terms of the bribery figure amount.” ² So did the Presentence Investigation Report. But the jury never had a chance to make these findings, as there was no special verdict. Nor do the convictions necessarily imply a victim or a loss. For example, the FCPA jury instructions allowed for a conviction if the jury found the Greens had acted “corruptly” in making a payment to a foreign official “for the purpose of ... securing any improper advantage.” As the Greens argue, the FCPA convictions would be “consistent with findings that the payments were investments” or “bribes drawn from the Greens' own profits.” Nor do the Greens' other convictions require finding a victim or a pecuniary loss.³ Because the findings triggering restitution weren't made by the jury, we must decide whether Apprendi applies.

II. Apprendi's Application to Restitution

Apprendi held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. “[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (emphasis omitted). Apprendi applies to the fact-finding needed to trigger capital punishment, Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and criminal fines, Southern Union, 132 S.Ct. at 2357, but not the fact-finding needed to make concurrent sentences consecutive, Oregon v. Ice, 555 U.S. 160, 164, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009).

While the Supreme Court has yet to hold whether Apprendi applies to restitution, it has said in dictum that “[i]ntruding Apprendi's rule into” decisions to impose “statutorily prescribed fines and orders of restitution” would “cut the rule loose from its moorings.” Id. at 171–72. That's some indication the Court would not apply Apprendi to restitution, although the recent Southern Union decision declined to follow this dictum, at least as it concerned criminal fines. 132 S.Ct. at 2352 n. 5 (“[O]ur statement in Ice was unnecessary to the judgment and is not binding.”).

Our own court, however, has categorically held that Apprendi and its progeny—Blakely and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)—don't apply to restitution. In United States v. Bussell, 414 F.3d 1048, 1060 (9th Cir.2005), we held that “the district court's orders of restitution and costs” under the VWPA “are unaffected by the changes worked by Booker.” See also United States v. DeGeorge, 380 F.3d 1203, 1221 (9th Cir.2004) (VWPA restitution “is unaffected by Blakely ”); United States v. Gordon, 393 F.3d 1044, 1051 n. 2 (9th Cir.2004) (defendant's “Blakely argument is foreclosed by our recent decision in United States v. DeGeorge ”). Under the existing law of the circuit, then, defendants' Apprendi claim must fail.

Defendants nonetheless advance two reasons for breaking with precedent:

A. The “Trigger” Argument

The Greens say our cases have rejected Apprendi's application to determinations of the amount of restitution, not to determinations of whether restitution is triggered at all. As a result, they insist, we can apply Apprendi to the trigger determination without running afoul of our caselaw. At oral argument the Greens theorized a regime under which Apprendi would apply to the determination of the trigger but not the amount.

We are not persuaded. First, this approach contravenes the categorical nature of our statements that restitution is “unaffected” by Apprendi. See page 1149 supra. These categorical statements control even though the cases from which they issued didn't specifically address the trigger argument. A panel may adopt a categorical rule as circuit law without explicitly rejecting every conceivable counter-argument. We further hesitate to adopt the trigger argument because the Greens can't cite any case—state or federal—that has accepted it, and because the two circuits that considered it, rejected it. See United States v. Milkiewicz, 470 F.3d 390, 403 (1st Cir.2006); United States v. Reifler, 446 F.3d 65, 115–18 (2d Cir.2006).

Finally, applying Apprendi to the determination of the trigger but not the determination of the amount would result in unacceptable cognitive dissonance. If Apprendi covers the determination whether there are any victims at all, shouldn't it also cover the determination whether there's one victim who suffered a $1000 loss as opposed to 1000 victims who suffered a combined $1,000,000 loss? It's hard to justify Apprendi protections for the determination of the first victim but not the 999 to follow, each of which would increase the amount of restitution imposed upon the defendant. And if we treat each victim-determination as a separate trigger, we're effectively applying Apprendi to the determination of the amount. That's not so much distinguishing our precedent as overruling it.

B. Southern Union and the Miller v. Gammie Standard

The Greens next urge us to overrule our caselaw in light of the Supreme Court's recent decision in Southern Union, where a gas company was charged with violating the Resource Conservation and Recovery Act (RCRA), which provides for a maximum criminal fine of $50,000 per day of violation. 132 S.Ct. at 2349. The indictment alleged the company had violatedRCRA for a period of 762 days, but the jury was instructed that it could convict if it found even a single day's violation. Id. And convict the jury did. Id. At sentencing, the court calculated a “maximum potential fine of $38.1 million”—$50,000 x 762 days—“from which it imposed a fine of $6 million and a ‘community service obligatio[n]’ of $12 million.” Id. Defendant objected that it had been convicted of just one day's violation, so any...