United States v. Green

Apprendi v. New Jersey, which imposes a maximum sentence based on a jury verdict, does not apply to restitution.

Gerald and Patricia Green (“the Greens”) claim that the district court violated Apprendi v. New Jersey when they were ordered to pay restitution without a jury’s finding that there was an identifiable victim who suffered pecuniary loss. The Greens paid the Governor of Thailand’s Tourism Authority to secure lucrative contracts to run the Bangkok International Film Festival. They were convicted by a jury and sentenced by the district court. By precedent, Apprendi does not apply to restitution, but the Greens advanced two reasons for breaking with precedent. First, the Greens theorized that Apprendi would apply to the determination of the trigger of restitution and not the amount. The Ninth Circuit held that the theory contravened the statement that restitution is unaffected by Apprendi, and there are no cases that support the Green’s theory. Further, the panel held that the theory would result in unacceptable cognitive dissonance because if Appendi covered the trigger it should also cover the amount. Second, the Greens urged the panel to overrule case law based on Southern Union Co. v. United States, which determined that Apprendi applied to criminal fines and “prohibit[ed] judicial fact findings that increase maximum criminal sentences, penalties or punishments.” The panel determined that it cannot rely on Southern Union to overrule Appendi because restitution is not clearly a punishment, and restitution does not have a statutory maximum since it is determined by the amount of the victim’s loss. AFFIRMED.