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US Supreme Court: Criminal fines require jury finding

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An end-of-term U.S. Supreme Court decision did far more than reduce a penalty in a federal criminal environmental judgment from $18 million to $50,000. It created a new reality for how the government will have to pursue such prosecutions in the future, experts say.

A rare coalition of conservative and liberal justices ruled 6-3 in Southern Union Co. v. United States, 11–94, that the Sixth Amendment right to a jury trial requires a jury to determine facts to support a sentence imposed after a guilty verdict.

A jury found Houston-based utility company Southern Union guilty of improperly storing mercury in violation of the Resource Conservation and Recovery Act. The Supreme Court of the United States ruled that the jury verdict that proved guilt beyond a reasonable doubt was established for just one day rather than the hundreds of days the government alleged, and the award was reduced to the maximum penalty for a single-day violation.
 

ryan-scott-mug.jpg Scott

Indiana University Maurer School of Law associate professor Ryan Scott watched the case and narrated a podcast for the Federalist Society website that analyzed the Southern Union opinion. He said the justices extended to federal criminal fines the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), that states, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.”

“This is definitely a win for the defendants,” Scott told the Indiana Lawyer. “That said, the history of Apprendi is one of the Supreme Court recognizing more and more expansive jury rights and the government responding with great resilience.”

In essence, experts said, juries will have to determine factors such as lengths of violations for sentences involving fines on a “per day/per violation” basis, or losses and potential penalties in federal fraud cases. A simple guilty verdict such as that in Southern Union no longer is sufficient to allow a judge to use his or her discretion in levying criminal fines.

“I think the public assumes that the right to ‘trial by jury’ has already been fully defined by the federal courts. But we continue to discover new aspects to this constitutional guarantee,” said Jeff Lorenzo, a Seymour attorney who writes the Indiana Environmental Law Report blog.

He said the decision was overshadowed by SCOTUS rulings on health care and immigration, but, “this is one those cases that talks about issues that are essential to the disposition of justice.”

Southern Union is important for a couple of reasons. It represents an important win for corporate defendants in criminal cases. Since corporations can’t be imprisoned, they are more likely to be punished by large fines. This is particularly true in the environmental practice area because the potential damages to land, air and water are so significant and cleanup costs so imposing,” Lorenzo explained. 

“Beyond that, prosecutors (and courts) will have to ascertain the appropriate mechanisms to obtain a jury decision on the most important and critical facts relevant to augmented sentences,” he said.

That’s likely to mean that prosecutors will have to seek a special verdict from juries that makes specific findings on each count in which a guilty verdict is rendered, Scott and Lorenzo said. It also might require bifurcated trials involving jury determinations of guilt followed by proceedings to determine sentencing criteria on which a judge will rule.

The decision in Southern Union affects a small number of cases, according to Scott, but they often are high-profile matters where potential fines are great. “The distribution of who makes a determination (of sentencing criteria) is very significant,” he said.

Scott believes potentially protracted jury proceedings required under the ruling also might give defendants more leverage.

“You can bet defendants will use the fact that this is an inconvenience,” he said. But he noted the government has been quick to respond to requirements of Apprendi.


lorenzo-jeff-mug.jpg Lorenzo

“I think what’s most likely to happen is the government will continue to charge in a case just as it’s always done, and this will be a feature of discussion,” he said of the rule of Apprendi. Because most cases settle, “it will become the sort of thing the government negotiates.”

In cases that do proceed to trial, judges might find themselves unable to constitutionally impose a fine greater than that allowed under a jury’s general verdict of guilty, Scott said. They’ll have to determine whether further jury determination is warranted, given the time and cost involved. “They may not feel it’s worth the candle and impose a smaller fine.”

But Southern Union also is likely to sharpen the government’s focus in prosecuting environmental and fraud cases. “I expect indictments will be a little more refined,” Scott said.

Jon Laramore, a partner with Faegre Baker Daniels LLP in Indianapolis, said the ruling was a logical extension of Apprendi.

“Now that we know there are these requirements for fines, prosecutors will be able to take some relatively simple measures to anticipate this issue and in many cases keep it from becoming a problem,” he said.

Lorenzo predicted that the difficulty of proving facts beyond a reasonable doubt relevant to sentencing could pose practical hardships.

“Prosecutors may consider delaying filing until they have the evidence they are going to need to get the fines they consider appropriate,” he wrote. 

Lorenzo said a new body of caselaw might develop from the Southern Union decision, and legislation will likely be introduced in Congress and state legislatures in response to the ruling.

Scott said the case also provided an intriguing glimpse at how the newest justices ­– President Barack Obama’s appointees Elena Kagan and Sonia Sotomayor – would rule on a case involving Apprendi, which the court decided in a 5-4 ruling with a majority across the political spectrum in 2000.

Sotomayor wrote the opinion that was joined by Kagan and Justice Ruth Bader Ginsburg from the court’s liberal wing, along with Chief Justice John Roberts and conservative justices Antonin Scalia and Clarence Thomas.

Scott said the government had hoped that Apprendi had hit a high-water mark in 2009. That’s when a 5-4 Supreme Court appeared to set back the Apprendi rule in Oregon v. Ice, 07-901. There, the court ruled judges were not prohibited from finding facts to determine whether sentences on different offenses should be served concurrently or consecutively.

“Nothing surprises me in the Apprendi line of cases,” Scott said. “You have such a scramble of justices. … They don’t break down on predictable ideological lines.”

Lorenzo said justices left open other questions. Southern Union seems to suggest that Apprendi may apply to any penalties inflicted by the government for the commission of offenses, he explained. Also left for future consideration: “When does an offense rise beyond the level of ‘non-petty’ and become substantial enough to invoke the Apprendi rule?”

Scott also sees more Apprendi questions arising. The jury trial right could be a matter for the courts to decide in cases involving restitution determinations and in matters where asset forfeiture is ordered, he said.•

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  1. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  2. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  3. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  4. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  5. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

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