Film Honchos Can’t Duck $250K Restitution Order

     (CN) – A pair of film producers lost their bid in the 9th Circuit to overturn a $250,000 restitution order for bribing a government official in Thailand with $1.8 million to get contracts.
     Married couple Gerald and Patricia Green were convicted in 2009 of conspiracy, corruption and money laundering for bribing the former governor of the Tourism Authority of Thailand to land contracts worth $13.5 million.
     Their largest gig was the Bangkok International Film Festival, which raked in $140 million in profits by one marketing firm’s estimates.
     In 2006, a confidential informant tipped off the FBI to these payments, and a jury later convicted the Greens.
     They were sentenced to six months in prison and three years of parole, and were ordered to pay $250,000 in restitution.
     The film duo appealed the restitution order only, claiming the judge lacked the authority to increase their penalty absent a jury’s finding that there was “an identifiable victim or victims” who suffered a “pecuniary loss.”
     They cited the U.S. Supreme Court’s 2000 ruling in Apprendi v. New Jersey, which puts a criminal defendant’s maximum potential sentence in the jury’s hands.
     Their payments could be seen as “investments” or “bribes drawn from the Greens’ own profits,” the couple argued, so there were no identifiable victims.
     But the three-judge panel in Pasadena, Calif., disagreed Thursday, saying the 9th Circuit “has categorically held that Apprendi and its progeny don’t apply to restitution.”
     Though the Supreme Court “has yet to hold whether Apprendi applies to restitution,” Chief Judge Alex Kozinski noted, the justices have given some indication that they would not.
     He added that the 1st and 2nd Circuits have rejected the claim that courts can apply Apprendi to determine if restitution should be triggered at all, even if they can’t use it to determine the amount of restitution.
     That approach “would result in unacceptable cognitive dissonance” and “contravenes the categorical nature of our statements that restitution is ‘unaffected’ by Apprendi,” Kozinski wrote.
     The panel refused to overrule its caselaw in light of the more recent Supreme Court decision in Southern Union Co. v. United States, where the justices applied Apprendi to criminal fines.
     The Greens argued that Southern Union “strongly signals that Apprendi applies to criminal restitution as well.”
     “But ‘strong signals’ aren’t enough,” Kozinski wrote.
     “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,'” he wrote, quoting 9th Circuit precedent with added emphasis.
     “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.”

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