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CA No. 10-50519, CA No. 10-50524 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

) ) Plaintiff-Appellee , ) ) v. ) ) GERALD GREEN AND ) PATRICIA GREEN, ) ) Defendant-Appellants. ) ) ____________________________________)

UNITED STATES OF AMERICA,

DC No. CR 08-00059-GW

_________________ APPELLANTS PETITION FOR REHEARING EN BANC _________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA Honorable George H. Wu, United States District Judge Harold J. Krent IIT Chicago-Kent College of Law 565 West Adams Street Chicago, Illinois 60661-3691 Ph: (312) 906-5010 Email: hkrent@kentlaw.iit.edu Attorney for Gerald Green Marilyn E. Bednarski Kaye, McLane, Bednarski & Litt LLP 234 East Colorado Blvd. Suite 230 Pasadena, California 91101 Ph: (626) 844-7660 Ext. 102 Email: mbednarski@kmbllaw.com Attorney for Patricia Green

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TABLE OF CONTENTS STATEMENT PURSUANT TO FED. R. APP. P. 35(b)(1)(A)...1 INTRODUCTION.1 I. THERE IS NO MATERIAL DIFFERENCE WITHIN THE APPRENDI FRAMEWORK BETWEEN CRIMINAL FINES AND CRIMINAL RESTITUTION...2 APPRENDI DOES NOT TURN ON WHETHER THE MAXIMUM SENTENCE IS SPELLED OUT IN THE STATUTE............4 ALLEYNE PROVIDES FURTHER REASON FOR EN BANC REVIEW.6

II.

III.

CONCLUSION.8 CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 32-19 PANEL DECISION.Appendix

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TABLE OF AUTHORITIES

Cases Supreme Court Alleyne v. United States, 133 S. Ct. 2153 (2013)...passim Apprendi v. New Jersey, 530 U.S. 466 (2000)...passim Pasquantino v. United States, 544 U.S. 349 (2005)3 Southern Union v. United States, 132 S. Ct. 2344 (2012)...passim Other Courts State v. Garner, 8 Port. 447 (Ala. 1939)4 State v. Goodrich, 46 N.H. 186 (1865).4 United States v. Day, 700 F.3d 713 (4th Cir. 2012)...4 United States v. Dubose, 146 F.3d 1141 (9th Cir. 1998).3 United States v. Navarette, 667 F.3d 886 (7th Cir. 2012)...3 United States v. Rebollo, 506 Fed Appx. 544 (9th Cir. 2013)..2
ii

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United States v. Sosebee, 419 F.3d 451 (6th Cir. 2005)4 Statutes 9th Cir. R. 35-1..1 Crimes Act of 1790, 16, 1 Stat. 112...4 Fed. R. App. P. 35 (b)(1)(A)..1

iii

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STATEMENT UNDER FED. R. APP. P. 35(b)(1)(A); 9TH CIR. R. 35-1 En banc review is appropriate to ensure consistency of Ninth Circuit precedent with two recent Supreme Court cases: Southern Union v. United States, 132 S. Ct. 2344 (2012) and Alleyne v. United States,133 S. Ct. 2153 (2013). INTRODUCTION In the court of appeals, the Greens argued that the district courts criminal restitution order under the MVRA should be vacated because the order was predicated on a finding, not made by a jury, that the Greens conduct resulted in a pecuniary loss to an identifiable victim. The Greens principally relied on the Supreme Court decision in Southern Union v. United States, 132 S. Ct. 2344 (2012), decided after the district courts order, which applied the Sixth Amendment Apprendi rule in the closely related context of criminal fines. The panel seemingly agreed in part, stating that Southern Union provides reason to believe Apprendi might apply to restitution, slip op. 9, and observed that it chips away at the theory behind [this Courts] restitution cases. Id. Nonetheless, the panel declined to so hold because it deemed the Supreme Courts decision not clearly irreconcilable with this Courts prior holdings. Id. A panel cannot depart from this Courts precedents unless the intervening case makes the prior precedent clearly irreconcilable. Id. Thus, this Court has never afforded plenary review of whether, in light of Southern Union, Apprendi applies to criminal restitution.
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The Supreme Court further elaborated on Apprendi after Southern Union in Alleyne v. United States, 133 S. Ct. 2153 (2013), holding that Apprendi applies in the context of a mandatory minimum sentence for a crime. Given that criminal restitution under the MVRA also in effect constitutes a mandatory minimum for the money laundering charge here, the logic of Alleyne similarly should apply. In short, because this circuits precedents are not well-harmonized with Southern Union, slip op. 11, the issue is recurrent 1 and important, and because Alleyne further casts doubt on circuit precedent, this Court should provide plenary review of the question whether Southern Union and Alleyne apply to criminal restitution as well as to criminal fines. I. THERE IS NO MATERIAL DIFFERENCE WITHIN THE APPRENDI FRAMEWORK BETWEEN CRIMINAL FINES AND CRIMINAL RESTITUTION The Supreme Court in Southern Union held that the Apprendi rule applies to criminal fines. The Court stated 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. Id. at 2350 (citation omitted). Because the judge instead of the jury determined the duration of Southern Unions statutory violation and set the fine accordingly, the Court vacated the sentence.

See, e.g., United States v. Rebollo, 506 Fed Appx. 544 (9th Cir. 2013).
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The panel in this case questioned (slip op. at 10) whether criminal restitution, like criminal fines, constituted punishment within the meaning of Apprendi. However, the Supreme Court in Pasquantino v. United States, 544 U.S. 349, 365 (2005), plainly asserted that [t]he purpose of awarding restitution [under the MVRA] in this action is . . .to mete out appropriate criminal punishment. And, this Court in United States v. Dubose, 146 F.3d 11412, 1148 (9th Cir. 1998), earlier stated that restitution under the MVRA is punishment because the MVRA has not only remedial, but also deterrent, rehabilitative, and retributive purposes. . . Restitution undoubtedly serves traditional purposes of punishment. (citation omitted). With civil restitution, in contrast, there must be a showing of unjust gain, see, e.g., United States v. Navarette, 667 F. 3d 886, 888-89 (7th Cir. 2012), which is not a requirement under the MVRA and was not demonstrated in this case. In the absence of gain, the restitutionary requirement to pay a victims loss under the MVRA unquestionably is criminal punishment, increasing the punishment for the underlying offense. The Court in Southern Union could not have been more clear: in stating Apprendis rule, we have never distinguished one form of punishment from another. 132 S. Ct. at 2351. If there were any doubt, the Court in Southern Union stated that Apprendi applies to criminal fines when the fine is predicated on the amount of the defendants gain or the victims loss, 132 S. Ct. at 2351. There is
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no plausible reason to think that the Supreme Court intended Apprendi to apply to criminal fines based on the victims loss but not to the victims loss undergirding criminal restitution under the MVRA. As a final note, the Supreme Court in Southern Union was well aware that a number of statutes historically have combined criminal fines and criminal restitution together. See 132 S. Ct. at 2354. For instance, in many of the early cases, criminal fines were to be paid to the victim, not the state. State v. Goodrich, 46 N.H. 186, 188 (1865); State v. Garner, 8 Port. 447 (Ala. 1939). 2 For Southern Union to be coherent, Apprendi should apply when criminal penalties are paid to victims not only when termed fines but also when termed restitution. II. APPRENDI DOES NOT TURN ON WHETHER THE MAXIMUM SENTENCE IS SPELLED OUT IN THE STATUTE The panel also suggested, as other courts have held, that Apprendi only applies to statutes that spell out statutory maxima or are uncapped. Slip op. 1011; Accord, United States v. Day, 700 F.3d 713, 732 (4th Cir. 2012); United States v. Sosebee, 419 F.3d 451, 454 (6th Cir. 2005). The uncapped argument proves too much the key under Apprendi is whether the court can sentence an offender to a particular sentence without making a legislatively directed factual finding. There

The first Congress reflected prior practice in providing that criminal fines in part would be paid to the victim. See, e.g., Crimes Act of 1790, 16, 1 Stat. 112, 116 (larceny statute capped fine at four times the value of property stolen and directed that half be paid to the owner of goods).
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is no requirement that the number of years in prison or the exact amount of fine be specified indeed, in Southern Union itself, the amount of fine was not capped but rather could vary with a determination of how many days the defendant violated the statute. The district court there selected 762 days, but it could have selected a single day or 381 days. The penalty turned on the statutory factor requiring a determination of the number of days of violation, just as in this case the penalty under the MVRA turns on the amount of the victims loss. Moreover, Southern Union explicitly held that the Apprendi rule applies in fines cases based on the victims loss 132 S. Ct. at 2350-51, which compels the conclusion that no numerical maximum need be ascertainable from the face of the statute for Apprendi to apply. The uncapped argument cannot survive Southern Union intact. The key is not whether the legislature prescribed a precise number of years or dollar amount, but rather whether the legislature predicated increased or additional punishment on specific factfinding. The Court explained in Southern Union that the 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. Thus, while judges may exercise discretion in sentencing, they may not inflict punishment that the jurys verdict alone does not allow. (citation omitted).

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132 S. Ct. at 2350. 3 Southern Union clarifies that, properly understood, the statutory maximum sentence refers to the maximum sentence that a judge can impose without finding the further facts specified by the legislature. III. ALLEYNE PROVIDES FURTHER REASON FOR EN BANC REVIEW After oral argument in this case, the Supreme Court in Alleyne held that Apprendi applies whenever the legislature predicates a more serious penalty on additional fact finding, irrespective whether the penalty could have been imposed previously. There, the question turned on whether the mandatory minimum for using a firearm during a robbery triggered the Apprendi guaranties. In resolving that issue, the Court stressed that, even though the sentence meted fell within the sentencing range set by the legislature, the mandatory minimum was predicated on a legislative determinant or element of the offense and therefore had to be resolved by the jury When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury. 133 S. Ct. at 2162. Moreover, [t]his reality demonstrates that the core crime and the fact triggering

Moreover, Deputy Solicitor General Drebeen at oral argument in Southern Union conceded that if one is applying an algebraic understanding of the relevant statutory maximum from the Blakely decision, restitution would be hard to justify because the jury verdict does not contain findings about harm to victims. The jury verdict finds guilt. Afterwards, the judge finds an additional fact, namely the amount of harm and imposes restitution. Transcript at 32. That is precisely why the Apprendi rule should apply to criminal restitution.
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the mandatory minimum sentence together constitutes a new, aggravated crime, each element of which must be submitted to the jury. Id. at 2161. Such were the circumstances in this case the district court finding triggering the mandatory minimum was that an identifiable victim suffered pecuniary harm from the Greens conduct. As the panel recognized, that finding was not made by the jury, and the jury verdict was consistent with other factual scenarios that would not have triggered criminal restitution. Slip op. 5-6. Moreover, the Court in Alleyne explained that requiring the prosecution to present such issues in the indictment for jury consideration enables the defendant to predict the legally applicable penalty from the face of the indictment. 133 S. Ct. at 2161. Alleyne therefore reinforces the Greens reading of Southern Union, which makes the case for rehearing en banc that much more compelling. In short, this Court should afford plenary consideration of whether Apprendi applies to criminal restitution. Southern Union held that Apprendi applies to statutes, including those without numerical maximums, based on the victims loss as in this case, and Alleyne reinforces that what is critical is whether the legislature has predicated an additional penalty on discrete factfinding. As the panel itself noted, [h]ad Southern Union come down before our cases, those cases might have come out differently because this Courts prior case law is not well harmonized with Southern Union. Slip op. 11.
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CONCLUSION For the foregoing reasons, this Court should grant the petition for rehearing en banc to permit consideration of whether Apprendi applies to criminal restitution.

Respectfully submitted, DATED: July 23, 2013 By /s/ Harold J. Krent Harold J. Krent Attorney for Gerald Green

DATED: July 23, 2013

Kaye, McLane, Bednarski & Litt LLP By /s/ Marilyn E. Bednarski Marilyn E. Bednarski * Attorney for Patricia Green

* I Marilyn E. Bednarski, attest pursuant to Circuit Rule 25-5(e) that Attorney Harold J. Krent, on behalf of his client, Gerald Green, concurs in the content of this joint filing.

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CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 32-1 Pursuant to Rule 32(a)(7) of the Federal Rules of Appellate Procedure and Ninth Circuit Rule 32-1, I hereby certify that: the foregoing Petition uses 14 point Times New Roman proportionately spaced type; text is double spaced and footnotes are single spaced; a word count of the word processing system used to prepare the brief indicates that the Petition (not including the table of contents, the table of authorities, the certificate of compliance with Circuit Rule 32-1, or the proof of service) contains approximately 2097 words.

Respectfully submitted, DATED: July 23, 2013 By /s/ Harold J. Krent Harold J. Krent Attorney for Gerald Green

DATED: July 23, 2013

Kaye, McLane, Bednarski & Litt LLP By /s/ Marilyn E. Bednarski Marilyn E. Bednarski Attorney for Patricia Green