United States v. Gerald Green , 722 F.3d 1146 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 10-50519
Plaintiff-Appellee,
D.C. No.
v. 2:08-cr-00059-
GW-1
GERALD GREEN ,
Defendant-Appellant.
UNITED STATES OF AMERICA , No. 10-50524
Plaintiff-Appellee,
D.C. No.
v. 2:08-cr-00059-
GW-2
PATRICIA GREEN ,
Defendant-Appellant,
OPINION
JEFFREY F. ALLEN ,
Movant.
Appeals from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
2 UNITED STATES V . GREEN
Argued and Submitted
January 9, 2013—Pasadena, California
Filed July 11, 2013
Before: Alex Kozinski, Chief Judge, M. Margaret
McKeown and Milan D. Smith, Jr., Circuit Judges.
Opinion by Chief Judge Kozinski
SUMMARY*
Criminal Law
The panel affirmed a restitution order in a case in which
the defendants claimed that the district court violated
Apprendi v. New Jersey, 530 U.S. 466 (2000), when it
ordered them to pay restitution without a jury’s finding that
there was an identifiable victim who suffered a pecuniary
loss.
The panel held that Southern Union Co. v. United States,
132 S. Ct. 2344 (2012), which held that Apprendi applies to
the fact-finding need to trigger criminal fines, is not clearly
irreconcilable with this court’s precedent holding that
Apprendi does not apply to restitution orders.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . GREEN 3
COUNSEL
Harold J. Krent (argued), Chicago-Kent College of Law,
Chicago, Illinois; Marilyn E. Bednarski, Kaye, McLane &
Bednarski, LLP, Pasadena, California, 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.;
André Birotte, Jr., United States Attorney, Los Angeles,
California, for Plaintiff-Appellee.
Steve Cochran, Katten Muchin Rosenman, LLP, Los Angeles,
California, for Movant Jeffrey F. Allen.
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 (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
4 UNITED STATES V . GREEN
cases or else overrule them in light of the Supreme Court’s
recent decision in Southern Union Co. v. United States, 132
S. Ct. 2344 (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
UNITED STATES V . GREEN 5
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
1
The parties dispute whether restitution was ordered under the MVRA
or the Victim and W itness Protection Act (VW PA), 18 U.S.C. § 3663.
But both statutes require a finding that there was a victim who suffered a
loss, so the Apprendi question is in play either way.
2
The Greens didn’t raise an Apprendi objection to these findings or the
restitution order. The government argues we should review for plain
error. W e decline to do so because the legal issues in this case fall within
the exceptions to plain error review described by United States v.
Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009).
6 UNITED STATES V . GREEN
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. “[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
(2004) (emphasis omitted). Apprendi applies to the fact-
finding needed to trigger capital punishment, Ring v. Arizona,
536 U.S. 584, 609 (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 (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
3
Patricia Green’s convictions for false subscription of two tax returns
do necessarily imply a pecuniary loss to a victim— the federal
government. But the prosecution elected not to seek restitution for these
convictions.
UNITED STATES V . GREEN 7
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 (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.
8 UNITED STATES V . GREEN
We are not persuaded. First, this approach contravenes
the categorical nature of our statements that restitution is
“unaffected” by Apprendi. See page 7 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
UNITED STATES V . GREEN 9
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 violated RCRA 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 fact
resulting in a fine over the daily maximum had to be found by
a jury. Id. The Supreme Court agreed, applying Apprendi to
criminal fines. Id. at 2349, 2357.
Southern Union provides reason to believe Apprendi
might apply to restitution. As the Court held: “In stating
Apprendi’s rule, we have never distinguished one form of
punishment from another. Instead, our decisions broadly
prohibit judicial factfinding that increases maximum criminal
‘sentence[s],’ ‘penalties,’ or ‘punishment[s]’—terms that
each undeniably embrace fines.” Id. at 2351. The Greens say
that “by applying Apprendi to criminal fines, Southern Union
strongly signals that Apprendi applies to criminal restitution
as well.” But “strong[] signals” aren’t enough. For a three-
judge panel to overrule circuit precedent, the intervening case
must “undercut the theory or reasoning underlying the prior
circuit precedent in such a way that the cases are clearly
irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th
Cir. 2003) (en banc) (emphasis added). Southern Union
doesn’t cross that threshold. Even if it chips away at the
theory behind our restitution cases, it’s not “clearly
irreconcilable” with our holdings that restitution is
“unaffected” by Apprendi.
10 UNITED STATES V . GREEN
First, the obvious: Southern Union deals with criminal
fines, not restitution. It’s far from “clear[]”—Miller’s
term—that a rule governing one would govern the other.
Indeed, it’s not even clear that restitution’s a form of
punishment. We’ve held in some contexts that “restitution
under the MVRA is punishment.” United States v. Dubose,
146 F.3d 1141, 1145 (9th Cir. 1998); see United States v.
Ballek, 170 F.3d 871, 876 (9th Cir. 1999). But in other
contexts, we’ve held it’s not. See United States v. Phillips,
704 F.3d 754, 771 (9th Cir. 2012) (“[F]orfeiture and
restitution serve entirely distinct purposes: ‘Congress
conceived of forfeiture as punishment . . . . The purpose of
restitution . . . , however, is not to punish the defendant, but
to make the victim whole again.’” (quoting United States v.
Newman, 659 F.3d 1235, 1241 (9th Cir. 2011))); Gordon, 393
F.3d at 1052 n.6 (“[T]he MVRA’s purpose is to make the
victims whole; conversely, the Sentencing Guidelines serve
a punitive purpose.”). Sometimes we’ve held it’s a hybrid,
with “both compensatory and penal purposes.” United States
v. Rich, 603 F.3d 722, 729 (9th Cir. 2010). Even if Apprendi
covers all forms of punishment, restitution’s not “clearly”
punishment, so we can’t rely on Southern Union to overrule
our restitution precedents.
Second, Southern Union concerned a determinate
punishment scheme with statutory maximums: “[O]ur
decisions broadly prohibit judicial factfinding that increases
maximum criminal ‘sentence[s],’ ‘penalties,’ or
‘punishment[s].’” 132 S. Ct. at 2351 (emphasis added).
Restitution carries with it no statutory maximum; it’s pegged
to the amount of the victim’s loss. A judge can’t exceed the
non-existent statutory maximum for restitution no matter
what facts he finds, so Apprendi’s not implicated.
UNITED STATES V . GREEN 11
The Fourth Circuit has already held that Southern Union
doesn’t apply to restitution because “there is no prescribed
statutory maximum in the restitution context.” United States
v. Day, 700 F.3d 713, 732 (4th Cir. 2012) (emphasis in
original). And, prior to Southern Union, other circuits came
to the same conclusion. See Milkiewicz, 470 F.3d at 404 (1st
Cir.); Reifler, 446 F.3d at 117–20 (2d Cir.); United States v.
Sosebee, 419 F.3d 451, 454 (6th Cir. 2005). Similarly, our
own court held last December that Southern Union doesn’t
apply to criminal forfeiture because, like restitution, forfeiture
lacks a statutory maximum: “The Southern Union Court
explicitly held . . . that there could be no ‘Apprendi violation
where no maximum is prescribed.’” Phillips, 704 F.3d at 770
(quoting Southern Union, 132 S. Ct. at 2353). But see
Southern Union, 132 S. Ct. at 2350–51 (Apprendi applies to
fines where the maximum is based on “the amount of . . . the
victim’s loss.”). This difficulty with applying Southern
Union—and, by extension Apprendi—to an indeterminate
scheme further undermines any claim that Southern Union is
“clearly irreconcilable” with our restitution caselaw.
III. Conclusion
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
12 UNITED STATES V . GREEN
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.
AFFIRMED.