White Collar Roundup - July 2012

A Fine Revolution

The U.S. Supreme Court ruled that only a jury, not a judge, may make findings that enhance the maximum fine exposure for a convicted defendant. The Court applied to criminal fines its prior holding in Apprendi v. New Jersey, which held that "[t]he Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant's maximum potential sentence." In the case, the jury convicted the defendant-company for violating a law that authorized a $50,000 per-day fine. The jury was not asked to—and did not—specify how many days the law was violated. At sentencing, the government sought to impose a fine substantially in excess of the one-day total. The district court ruled that the jury necessarily found a violation of 762 days (making the potential fine $38.1 million) and imposed a fine of $6 million. The U.S. Court of Appeals for the First Circuit affirmed, holding that Apprendi does not apply to criminal fines. The Supreme Court disagreed, reversed and remanded for resentencing.

Don't Take That Third Point for Granted

The Sixth Circuit held that the government may refuse to move, under Section 3E1.1(b) of the U.S. Sentencing Guidelines, for a third point for acceptance of responsibility as long as it has a rational basis for its decision. The court rejected the rulings of the Second and Fourth Circuits, which have limited the government's discretion to refuse to make such a motion after a guilty plea to circumstances where the delay in deciding to plead guilty caused the government to expend resources to prepare for trial. In this case, the government's basis for refusing the Section 3E1.1(b) motion was the defendant's motion to suppress evidence, which required the government to prepare for and conduct a suppression hearing.

Beware the Appeal Waiver

Defendants who agree in their plea agreements to waive the right to appeal their sentences also forfeit the right to appeal a denial of a motion to modify the conditions of supervised release under 18 U.S.C. 3583(e)(2), according to the Fifth Circuit. The court reasoned that because the conditions of supervised release are part of the original sentence, any appeal relating to those terms is foreclosed by an appeal waiver in a plea agreement. The Fifth Circuit's holding is at odds with those from the Tenth and Eleventh Circuits.

Not Getting Hung Up on the Details

The core allegations of an indictment required to...