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June 15, 2005

Second Circuit deems Blakely/Booker inapplicable to forfeitures

In perhaps the biggest decision of a big day in the circuits, on Tuesday the Second Circuit in US v. Fruchter, No. 02-1422 (2d Cir. June 14, 2005) (available here), rejected a Blakely/Booker claim lodged against a "forfeiture amount [that] was based in part on facts found by the district judge by a preponderance of the evidence."  Though noting that the defendant's "argument has a certain surface appeal," the Second Circuit concluded it should not extend Blakely/Booker to forfeitures:

Blakely and Booker prohibit a judicial increase in punishment beyond a previously specified range; in criminal forfeiture, there is no such previously specified range. A judge cannot exceed his constitutional authority by imposing a punishment beyond the statutory maximum if there is no statutory maximum. Criminal forfeiture is, simply put, a different animal from determinate sentencing. In sum, Braun's Sixth Amendment argument must fail.

We do not read Booker and Blakely to require proof beyond a reasonable doubt in indeterminate punishment schemes, such as RICO forfeiture.  And, in any event, Libretti remains the determinative decision.  Accordingly, the district court did not err when it applied a preponderance standard to the determination of Braun's forfeiture amount.

June 15, 2005 at 01:54 AM | Permalink


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this 'no statutory maximum' argument is the same that the most federal courts have used to get out of applying Aprrendi/Blakely/Booker to restitution orders.
Repeating the same incorrect argument again and again doesn't make it more correct.

Posted by: Brian Kleinhaus | Jun 15, 2005 10:01:23 AM

I agree with Brian. The "statutory maximum" the courts should be looking at is not the "maximum" for forfeiture, but the maximum that the law allows for the crime of conviction, based on the findings of the jury beyond a reasonable doubt. Unless the jury finds the facts necessary to trigger a forfeiture (e.g., the offense generated proceeds and the defendant has an interest in those proceeds), the conviction for the offense itself authorizes a maximum sentence of a $250,000 fine, imprisonment, supervised release, and a special assessment. Similarly that maximum cumulative punishment does not include restitution unless additional facts are found, to wit, the offense had a victim and the victim suffered a loss. Honestly, I just can't understand this "forfeiture has no maximum" rationale. Doug, can you explain it?

Posted by: Peter G | Jun 15, 2005 10:30:34 PM

I'm not sure I have a good explanation for this ruling beyondsimply the courts' feeling that "we were fine with how all this worked before Apprendi/Blakely, and we are going to continue with business as usual until someone tell us we have to change course."

Posted by: Doug B. | Jun 15, 2005 11:50:21 PM

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