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February 15, 2006

Third Circuit rules, en banc, Blakely and Booker inapplicable to restitution and forfeiture

In a lengthy and thoughtful opinion (with notable concurrences and dissents), the Third Circuit en banc today in US v. Leahy, No. 03-4490 (3d Cir. Feb. 15, 2006) (available for download below), declared Blakely and Booker inapplicable to restitution and forfeiture judgments.  Here is the majority's summary of its holding:

Because, in our view, restitution under the VWPA and the MVRA is not the type of criminal punishment that evokes Sixth Amendment protection under Booker, we conclude that the amount a defendant must restore to his or her victim need not be admitted by the defendant or proved to a jury beyond a reasonable doubt. As to forfeiture, based upon the Supreme Court's decision in Libretti v. United States, 516 U.S. 29 (1995), we conclude that the amount a defendant must forfeit also need not be admitted or proved to a jury beyond a reasonable doubt.

Download third_circuit_leahy.pdf

UPDATE:  Leahy can now also be accessed at this link, and a (too) quick review reveals that this is a truly fascinating opinion with lots of facets that merit commentary (such as the fact that Justice Alito was at one point involved in the case but did not participate in the final decision).  I hope to have time for more substantive commentary soon, and in the meantime I encourage readers to provide insights in the comments.

February 15, 2006 at 12:23 PM | Permalink

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Comments

Just as I predicted when you first posted about this case. This issue is really only an open issue in the First Circuit, and maybe the Second.

Posted by: Brian K | Feb 15, 2006 1:01:07 PM

I beg to differ, Brian. Where the application of the Apprendi-Blakely principle to criminal financial penalties is really an open issue is in and before the Supreme Court.

Posted by: Peter G | Feb 15, 2006 2:36:15 PM

I have one in the Ninth that will be decided any day now, and of some interest, they granted my motion to stay the forfeiture pending appeal based on the Booker issue.

Posted by: Greg Silvey | Feb 15, 2006 6:07:59 PM

there are 2 briefs that I've read on westlaw for current cases awaiting decisions in the 9th.

My point was, Peter, that although in theory you are right that the Court should address the issue, I don't see it happening, given the so far total rejection of this issue at the Ckt level. Even Circuits that hold that resitution is a criminal penalty have found a way to get around this issue. I believe that this is a fairly disingenous response, and especially from the 7th ckt, which has completely changed its approach on restitution without ever explaining why it did so.

Posted by: Brian K | Feb 15, 2006 8:10:35 PM

Well, I just lost in the Ninth because Libretti controls, I guess its time to petition for cert.

Posted by: Greg Silvey | Feb 16, 2006 12:38:27 PM

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