Rejected Restitution Case Provokes High Court Dissents

WASHINGTON (CN) – Three justices balked Monday at the Supreme Court’s refusal to take up a case involving whether a judgment of restitution should be decided by a jury.

While it is understood that the Sixth Amendment guarantee of the right to a jury trial covers both judgments of imprisonment fines, in the case of Joshua Hester and Marco Luis, it was a federal judge who ordered them to pay $329,767 in criminal restitution to CitiGroup after they pleaded guilty to various charges.

Hester lied on mortgage applications while trying to buy homes where he and a co-defendant planned to grow marijuana, and Luis, the mortgage broker, aided and abetted the conspiracy.

Both men petitioned the Supreme Court last year after the Ninth Circuit agreed with the government that the facts supporting a restitution order can be found by a judge.

Though the Supreme Court denied them a writ of certiorari without comment, Justice Neil Gorsuch wrote in dissent Friday that the case was worthy of review because of the increasing role restitution plays in federal criminal sentencing today. 

“From 2014 to 2016 alone, federal courts sentenced 33,158 defendants to pay $33.9 billion in restitution,” Gorsuch wrote, joined by Justice Sonia Sotomayor. “And between 1996 and 2016, the amount of unpaid federal criminal restitution rose from less than $6 billion to more than $110 billion. The effects of restitution orders, too, can be profound. Failure or inability to pay restitution can result in suspension of the right to vote, continued court supervision, or even reincarceration.”

Gorsuch called the Ninth Circuit’s ruling both important and doubtful, given that it conflicts with the rulings of other circuits.

“Just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order,” he wrote.

Gorsuch also noted that the challengers might find relief “under the Seventh Amendment and its independent protection of the right to a jury trial in civil cases.”

Justice Samuel Alito dissented as well, writing in a separate opinion that “fidelity to original meaning [of the Sixth Amendment] counsels against further extension of [the court’s] suspect precedents.”

Luis and Hester are represented by the San Diego firm Burns and Cohan.

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