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Name: U.S. v. Green
Case #: 10-50519
Court: US Court of Appeals
District 9 Cir
Opinion Date: 07/11/2013
Summary

The holdings in Apprendi v. New Jersey and Southern Union Co. v. U.S. do not require a jury finding with respect to criminal restitution orders. The defendants, who were involved in the film industry, entered into a number of contracts to run film festivals in Thailand. Securing the contracts involved several large payments to a Thai official. The Greens were indicted on Foreign Corrupt Practices Act and other charges. A jury conviction followed. At sentencing the court ordered $250,000 in restitution. The Greens appealed the restitution order, claiming the court violated Apprendi v. New Jersey (2000) 530 U.S. 466, by ordering restitution without a jury finding there was an identifiable victim who suffered financial loss, as required by the Mandatory Victims Restitution Act (MVRA). Held: Affirmed. Under the MVRA, there must be a showing that an identifiable victim suffered a physical injury or financial loss. The jury verdicts here did not require such a finding be made. In Apprendi, the court held that any finding, other than the fact of a prior, that increases the penalty for a crime beyond the statutory maximum requires a jury finding. In Southern Union Co. v. U.S. (2012) 132 S.Ct. 2344, the court extended Apprendi to criminal fines. However, Apprendi has not been applied to criminal restitution and Ninth Circuit precedent has held it does not apply. The fact that Southern Union applied Apprendi to criminal fines, even if this may strongly signal that Apprendi should apply to restitution, does not mean it is clearly irreconcilable with Ninth Circuit cases rejecting such application because Southern Union dealt with fines, not restitution. In addition, restitution lacks a statutory maximum–it’s tied to the victim’s loss.