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November 17, 2005

Judge Gertner applies Sixth Amendment to restitution

Hall of Famer Massachusetts US District Judge Nancy Gertner issued another major ruling on Booker issues earlier this week with another decision in US v. Mueffelman, No. 01-CR-10387-NG (D. Mass. Nov. 14, 2005) (available here).  In this iteration of Mueffelman, Judge Gertner breaks new ground with respect to the application of Blakely and Booker to orders of restitution:

[T]his case raised an issue of first impression in this Circuit -- whether victims who were not specifically named in the indictment could receive restitution under the MVRA. That issue requires resolution of at least two others -- whether restitution under the MVRA is compensatory (to the victims) or punitive (to the defendant) or both, and if punitive to any degree, whether the order is subject to the protections of the Sixth Amendment. I have concluded that restitution is punitive, and subject to the Sixth Amendment's protections. Nevertheless, in applying that analysis to the case at bar, I have ordered restitution to victims who, while not named in the indictment, fit within the "scheme" that was alleged and proved.

I believe this Meuffleman ruling is the first to find Blakely and Booker applicable to orders of restitution under the MVRA; a number of circuits have expressly rejected such a claim, though the Third Circuit is considering the issue en banc.  Given that Judge Gertner in her first ruling in this case right after Blakely last July essentially predicted the outcome in Booker, I would not quickly presume that her views on these restitution issues won't prevail.

November 17, 2005 at 09:14 AM | Permalink


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Mueffelman II is the first case to do so, although at least one other federal judge has questioned the constitutionality of the MVRA. See US v Kemp, 938 F. Supp. 1554, 1566 (N.D. Ala. 1996). The 9th Circuit did hint that the MVRA did have problems after Blakely. See US v Tomlinson, 110 Fed. Appx. 835, 836 (9th Cir. 2004) (unpublished opinion).

Posted by: Brian K | Nov 17, 2005 11:30:20 AM

If restitution is penal in nature than extending enforced payments that are non-dischargable to 20 years beyond any prison term + supervised release goes well past the maximum term of most sentences. Isn't that what Apprendi discusses? In reality the punishment continues long after any formal sentence is over. That should be addressed.

If restitution is civil in nature then it must be dischargable in bankruptcy. It isn't.

Is it civil or criminal? Apparently it is whatever is convenient for the government.

Posted by: Jim | Dec 20, 2007 4:43:07 AM

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