United States v. Gerald Green
722 F.3d 1146
| 9th Cir. | 2013Background
- Gerald and Patricia Green, producers with contracts from the Tourism Authority of Thailand, were convicted on FCPA, money laundering, conspiracy, and tax charges after paying about $1.8 million in payments tied to a Thai official.
- At sentencing the district court imposed six months’ imprisonment, three years’ supervised release, and $250,000 restitution, jointly and severally.
- The Presentence Report and the district judge found an identifiable victim and a pecuniary loss sufficient to trigger restitution under the MVRA/VWPA, but the jury never made those specific findings.
- The Greens did not raise an Apprendi objection below; the government urged plain-error review but the Ninth Circuit declined to apply plain-error standards.
- Central legal question: whether Apprendi requires jury findings beyond the verdict (identifiable victim and pecuniary loss) before a court may order restitution.
Issues
| Issue | Plaintiff's Argument (Greens) | Defendant's Argument (Government / Circuit precedent) | Held |
|---|---|---|---|
| Does Apprendi require jury findings that an identifiable victim suffered pecuniary loss before imposing restitution under MVRA/VWPA? | Apprendi applies to restitution triggers; jury must find victim/loss beyond reasonable doubt. | Apprendi does not apply to restitution; Ninth Circuit precedent treats restitution determinations as outside Apprendi. | No — Apprendi does not apply to restitution; restitution order affirmed. |
| Can the panel distinguish or limit circuit precedent by applying Apprendi only to the trigger (existence of victim) but not amount? | The trigger/amount distinction is viable: require jury on trigger only. | Circuit precedent is categorical that Apprendi does not affect restitution; distinguishing would effectively overrule precedent. | Rejected — trigger/amount distinction would be incoherent and conflicts with circuit law. |
| Does Southern Union (Apprendi applied to fines) require overruling Ninth Circuit restitution cases under Miller v. Gammie? | Southern Union signals that Apprendi should extend to restitution and undermines prior reasoning. | Southern Union addressed fines with statutory maximums; restitution lacks a statutory maximum and may not be "punishment" for Apprendi purposes; circuit precedent remains controlling. | Rejected — Southern Union does not clearly irreconcilably undermine Ninth Circuit precedent; panel cannot overrule circuit law. |
| Should the court apply plain-error review for the unpreserved Apprendi claim? | N/A (Greens did not preserve Apprendi objection). | Government urged plain-error review; court said legal issues fall within exceptions to plain-error review. | Court declined plain-error review and decided the legal question on the merits under existing precedent. |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (Sup. Ct. 2000) (jury must find any fact that increases statutory maximum sentence)
- Southern Union Co. v. United States, 567 U.S. 343 (Sup. Ct. 2012) (Apprendi applies to criminal fines)
- Blakely v. Washington, 542 U.S. 296 (Sup. Ct. 2004) (statutory maximum defined by jury verdict or admissions)
- United States v. Booker, 543 U.S. 220 (Sup. Ct. 2005) (Apprendi line applied in federal sentencing context)
- Oregon v. Ice, 555 U.S. 160 (Sup. Ct. 2009) (Apprendi does not apply to certain sentencing factfinding about consecutiveness)
- United States v. Bussell, 414 F.3d 1048 (9th Cir. 2005) (MVRA/VWPA restitution unaffected by Booker/Apprendi)
- United States v. DeGeorge, 380 F.3d 1203 (9th Cir. 2004) (VWPA restitution not impacted by Blakely)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. en banc 2003) (panel may not overrule clear circuit precedent absent clear irreconcilability)
- United States v. Phillips, 704 F.3d 754 (9th Cir. 2012) (Southern Union does not extend to forfeiture absent statutory maximum)
- United States v. Day, 700 F.3d 713 (4th Cir. 2012) (Southern Union does not apply to restitution because no prescribed statutory maximum)
- United States v. Milkiewicz, 470 F.3d 390 (1st Cir. 2006) (Apprendi not applied to restitution trigger)
- United States v. Reifler, 446 F.3d 65 (2d Cir. 2006) (applies same conclusion to restitution)