Wednesday, February 15, 2006

3rd Cir., en banc, holds Booker inapplicable to forfeiture/restitution

The Third Circuit, in a very fractured en banc decision in United States v. Leahy, (3d Cir. Feb. 15, 2005), has ruled that Booker does not apply to either forfeiture or restitution. The 6-5 decision addresses both issues thoroughly and creates a number of splits among the judges, resulting in six different opinions. The issues are addressed as follows:

The Court, per Circuit Judge Fuentes, initially held that the Supreme Court’s pre-Apprendi decision in Libretti v. United States, 516 U.S. 29 (1995), still binds the circuit courts despite any erosion to the decision that has occurred since the 1995 Libretti decision. In Libretti, the defendant argued that his plea colloquy was inadequate because the district court failed to inform him of his right to a special jury verdict regarding forfeiture under former FRCP 31(e). The Supreme Court held otherwise, indicating "that a defendant does not enjoy a constitutional right to a jury determination as to the appropriate sentence to be imposed." Id. at 49. In Leahy, the 3rd Cir. expressly noted the tension between Libretti and Booker, but decided that Libretti was still binding until the Supreme Court stated otherwise. The 3rd Cir. also ruled that Libretti similarly controlled any argument that forfeiture determinations must be made beyond a reasonable doubt.

Next, the Court turned to restitution, first addressing whether a restitution order was criminal or civil in nature. Pursuant to Pasquantino v. United States, 125 S. Ct. 1766 (2005), and United States v. Syme, 276 F.3d 131 (3d Cir. 2002), and a number of other Third Circuit and sister circuit decisions, the Court easily determined that an award of restitution under the Victim and Witness Protection Act (VWPA) and the Mandatory Victims Restitution Act (MVRA) is criminal in nature.

In assessing restitution under the Booker, the Court immediately determined that there was no Sixth Amendment distinction between the language in the VWPA or the MVRA; thus, the Court considered the two statutes together. Noting that Apprendi and its progeny explain that the Sixth Amendment requires facts that raise a defendant’s statutory maximum penalty be proven to a jury beyond a reasonable doubt or admitted, the Court then considered "whether a judge’s calculation of the sum a defendant must restore to his or her victim constitutes an increase in punishment exceeding that authorized by plea or jury verdict, in violation of the Sixth Amendment."

In answering this question, the 3rd Cir. stated that the restitution amount authorized by the governing statutes after a guilty plea or jury verdict is the "full amount of each victim’s losses." 18 U.S.C. § 3664(f)(1)(A). The defendants in Leahy pointed out that, in order for any restitution to be authorized, there must first be factual findings as to the amount of loss resulting from the defendants’ crimes. The 3rd Cir. disagreed, stating that "when the court determines the amount of loss, it is merely giving definite shape to the restitution penalty born out of the conviction."

The 3rd Cir. decided that the restitution penalties here, though criminal, are different from enhanced terms of imprisonment as analyzed under the Sixth Amendment in Jones, Apprendi, Blakely, and Booker. The 3rd Cir. stated that the sentencing court can decide how much property and proceeds must be returned to victims as a result of the offense of conviction. The Court further reasoned that, although restitution penalties are criminal, they do not enhance the severity of a defendant’s punishment, as authorized by the defendant’s convictions, because restitution constitutes a return to the status quo, not an increase in sentence.

Eight different Circuit Judges combined to write six concurring and/or dissenting opinions in Leahy. Of note, Circuit Judge McKee penned a decision concurring in the judgment regarding forfeiture, but dissenting in relation to the Court’s holding on restitution. Judge McKee agreed that the 1995 Libretti decision controlled the forfeiture question, but acknowledged that the Supreme Court’s decisions since 1995, namely, Blakely and Booker, were difficult to reconcile with Libretti. McKee did not, however, agree that a sentencing court could determine the amount of restitution under either the VWPA or the MVRA consistent with the Sixth Amendment.

Judge McKee first notes the bright line rule of Apprendi and Blakely and points out 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." Judge McKee further highlights that the majority, after conceding that restitution is a criminal sanction, inexplicably characterizes restitution as "not the type of criminal punishment that evokes Sixth Amendment protection" because it has "little in common with . . . prison sentences." Judge McKee asserts that this finding "sidesteps the analysis required by Blakely."

He further takes the majority to task for not answering the Blakely question at hand: "whether the verdict ‘alone’ allows the judge to impose restitution with no additional finding of fact." Judge McKee continues, "Obviously, it doesn’t." Judge McKee states that restitution is not authorized until additional findings are made regarding the amount of loss. Judge McKee finds no distinction between these findings and those that the Supreme Court found to be in violation of the Sixth Amendment in Blakely and Booker.

Judge McKee's opinion provides a much more thoughtful and thorough analysis of restitution under Sixth Amendment case law than does the majority's opinion. In addressing the majority's characterization of restitution, Judge McKee artfully describes the majority's analysis as a "pirouette," in reference to the Court's initial concession that restitution is criminal in nature, but later refusal to recognize that this determination subjects it to the Sixth Amendment, apparently due to the majority's own detection of certain civil aspects of restitution.

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