Criminal Forfeiture Not Governed by Requirements of Apprendi / Blakely Line of Cases

United States v. Fruchter, Docket No. 02-1422(L) (2d Cir. June 14, 2005) (Walker, Parker, and Wesley) (Op. by Walker): The Circuit concludes in this opinion that in determining the amount subject to forfeiture under the RICO criminal forfeiture statute, 18 U.S.C. § 1963, a judge need only rely upon the preponderance of the evidence standard. The Court specifically rejected appellant's argument that under Apprendi, Blakely, and Booker, the district court was required to determine the forfeiture amount under the beyond-a-reasonable-doubt standard. This was so because criminal forfeiture "is not a determinative scheme" (emphasis in original) -- like the Washington state regime invalidated in Blakely or the Sentencing Guidelines invalidated in Booker -- wherein a guilty verdict (or a guilty plea) "authorizes the imposition of a sentence within a specified [or determinate] range." Op. at 14. Rather, "criminal forfeiture is not subject to any statutory maximum," op. at 15, since the statute provides simply that the defendant shall forfeit "any property . . . derived from . . . any proceeds which the person obtained . . . from racketeering activity." Q.E.D.: "A judge cannot exceed his constitutional authority by imposing a punishment beyond the statutory maximum if there is no statutory maximum." Op. at 15.

Essentially, the reasoning is that because a guilty verdict (or a guilty plea) does not trigger a "previously specified range" in the forfeiture amount under § 1963, the Apprendi line of cases -- which "prohibit a judicial increase in punishment beyond a previously specified range" as authorized by a guilty verdict or plea -- is not applicable. See Op. at 15 ("Criminal forfeiture is, simply put, a different animal from determinate sentencing."). Rather, once the jury convicted Fruchter of RICO violations, the "maximum" forfeiture amount he became subject to was simply, as the statute provides, whatever proceeds the judge determined to be derived from his racketeering activities. The $20.7 million forfeiture order, in other words, was indeed "authorized" by the guilty verdict on the RICO counts. The Apprendi line of cases was therefore not implicated, and the preponderance standard is sufficient and the relevant findings need be made only by the judge. Indeed, the Court went on to uphold the district court's forfeiture order even though it included sums derived from counts on which the jury acquitted the defendant. Op. at 16-17.

A question naturally arises as to whether this case applies to restitution orders as well. Criminal forfeiture is not nearly as frequently encountered as restitution, and the governing statutes are of course distinct. One nonetheless wonders whether Fruchter means that restitution amounts also need not be found by the jury or on a beyond-a-reasonable-doubt standard -- a question that technically remains open in this Circuit . . . .