Supreme Court Watch: Review Of Oral Argument On Southern Union Fines Case

Supreme Court considers whether the Constitution requires that juries determine certain criminal fines; oral argument highlights the traditional role of judges and juries on sentencing issues, the ability of juries to determine complex fine issues, the impact on the criminal justice process, and the application of recent precedent, in Southern Union Company v. United States (No. 11-94)

Question Presented

On Monday, March 19, 2012, the Supreme Court heard oral argument concerning an important case on whether juries, and not judges, should determine certain criminal fines. In Apprendi v. New Jersey, the Supreme Court held that juries must decide facts that increase punishment beyond the statutory maximum: “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.” 530 U.S. 466, 490 (2000). In Southern Union Company v. United States (No. 11-94), the Court considered the reach of Apprendi to other aspects in the criminal justice process. The question presented is:

Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines.

Case Summary

In the case under review, a jury found Southern Union, a diversified natural gas company, guilty of one count of knowingly storing mercury without a permit in violation of 42 U.S.C. § 6928(d)(2)(A), under the Resource Conservation and Recovery Act. The jury was not asked to decide the number of days of any violation. The applicable fine provision under the statute provided for a fine of “not more than $50,000 for each day of violation.” 42 U.S.C. § 6928(d). The presentence report recommended a fine of $38.1 million, which was based on multiplying the daily fine amount by the 762 days noted in the indictment.

The defendant corporation objected under Apprendi, contending that a jury was required to determine the fine. The district court noted that the defendant may have waived the issue by the absence of a special interrogatory, however, on the merits, Apprendi did not apply. The district court imposed a fine totalling $18 million. In the opinion under review, the First Circuit affirmed:

The Apprendi issue is close but the Supreme Court's recent decision in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), leads us to hold that the Apprendi rule does not apply to the imposition of statutorily prescribed fines. If, however, we were wrong in our assessment of the Apprendi issue, we would find that any error under Apprendi was not harmless and that the issue of the fine would need to be remanded.
United States v. Southern Union Co., 630 F.3d 17, 34-36 (1st Cir. 2010).

Argument Highlights

Highlights from the oral argument follow:

Applicability of Oregon v. Ice

As a threshold matter, the case largely turns on the application of Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711 (2009). In Ice, the Court observed that judges had discretion in common law to decide fines. In dicta, the Court noted:

Further, it is unclear how many other state initiatives would fall under Ice’s proposed expansion of Apprendi. As 17 States have observed in an amici brief supporting Oregon, States currently permit judges to make a variety of sentencing determinations other than the length of incarceration. Trial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendance at drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution. See Brief for State of Indiana et al. as Amici Curiae 11. Intruding Apprendi’s rule into these decisions on sentencing choices or accoutrements surely would cut the rule loose from its moorings.
Ice, 129 S.Ct. at 719 (emphasis added). Petitioner’s counsel, Carter G. Phillips, contended that Ice was inapplicable because it dealt with multiple offenses. Southern Union, Transcript, at 8:9-22.

Deputy Solicitor General Michael Dreeben noted during questioning that the government was “not asking the Court to reconsider its Apprendi line of cases. We're asking it to apply the analysis that limited Apprendi in Oregon v. Ice. Southern Union, Transcript, at 50:10-13. Chief Justice John G. Roberts, Jr., asked if the quoted portion of Ice was “pure dicta.” Southern Union, Transcript, at 25:4. Deputy Solicitor General Dreeben responded that the passage “was not necessary to the judgment, … but it was part of the Court's rationale in adopting a different take on the meaning of the Apprendi line of cases then had previously been espoused.” Southern Union, Transcript, at 25:8-12.

Justice Ruth Bader Ginsburg, who authored the majority opinion in Ice, suggested the passage “was a fleeting reference to fines and it could have meant that the judge has discretion to set fines up to the maximum in the statute. That's one possible meaning.” Southern Union, Transcript, at 25:14-17. Deputy Solicitor General Dreeben responded to the author: “But I think that the author of the opinion in Ice was citing to an amicus brief filed by States which supplied illustrations of fine statutes that it believed would be imperilled by a purely programmatic rule-based application of Apprendi.” Southern Union, Transcript, at 25:19-23 (referring to Brief for State of Indiana et al. as Amici Curiae, at 11, and two state statutes involving gain or loss determinations by the judge).

Criminal Justice Process Impact

A number of Justices wondered about the impact of extending Apprendi to other aspects of the criminal justice process. While determining the number of days a statute was violated presents a straightforward determination for the jury, other issues are more complex. As Justice Sonia Sotomayor noted, in fraud cases determining the number of victims, restitution and related loss issues can be challenging. Southern Union, Transcript, at 14-15.

Deputy Solicitor General Dreeben contended that, “With respect to fines, restitution and forfeiture, the jury was never given a substantive role at common law.” Southern Union, Transcript, at 26:20-22. He suggested that restitution may be affected by the extension of Apprendi to fines based on prior cases which "described restitution as a criminal penalty." Southern Union, Transcript, at 30-31 (referring to Pasquantino v. United States, 544 U.S. 349 (2005)). Similarly, he added that forfeiture determinations could be affect since the Court had concluded it is a sentencing function. Southern Union, Transcript, at 36-37 (referring to Libretti v. United States, 516 U.S. 29 (1995)).

Petitioner’s counsel suggested that restitution is “not a punishment within the meaning of Apprendi” and is indeterminate so a jury did not need to decide it. Southern Union, Transcript, at 15:14-19, 51:17-19. Justice Sotomayor noted that many fines or loss amounts are indeterminate as well. Southern Union, Transcript, at 15-16.

Justice Breyer quoted one common fine provision involving a determination about gain or loss under 18 U.S.C. § 3571(d). This provision provides:

(d) Alternative Fine Based on Gain or Loss.— If any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than the defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process.
Southern Union, Transcript, 16-17. Petitioner’s counsel noted that “the jury trial right doesn’t necessarily make for the most efficient criminal proceeding,” and cautioned against “let[ting] the tail wag the dog in that particular context.” Southern Union, Transcript, at 17-18. Justice Breyer responded, “Is that a tail? Is that a tail that the jury proceeding is itself so unadministrable that even Congress says: We recognize even a judge couldn't do it.” Southern Union, Transcript, at 18:5-8. Petitioner’s counsel also suggested that criminal cases have suggested tht juries could address these issues. Southern Union, Transcript, at 52-53.

Justice Ginsburg asked if the jury would have to determine loss issues under the beyond the reasonable doubt standard. Petitioner's counsel provided his view by suggesting that would be the appropriate standard. Southern Union, Transcript, at 53:7-15.

Jury Instructions

Justice Ginsburg asked what guidance the jury had been given concerning any findings on the number of days that the statute was violated. Southern Union, Transcript, at 12:12-15. Petitioner’s counsel clarified that neither party objected to the instructions given by the trial judge. On this point, Justice Anthony M. Kennedy wondered if the issue had been waived. Southern Union, Transcript, 13:12-15.

Chief Justice Roberts suggested it was a "very simple matter for the government to ask for jury findings" on the fine "in this case". Deputy Solicitor General Dreeban acknowledge while the request could have been made in this case, other fine issues such as involving gain or loss decisions, presented "an enormously difficult and complicated task," which may require bifurcation of the trial. Southern Union, Transcript, at 35-36.

The Role of Judges and Juries and the Common Law

Part of the argument focused on the traditions under the common law with respect to the role of judges and juries in determining fines. Justice Stephen G. Breyer expressed his view that traditionally judges have had a role to determine sentencing facts including the amount of any fine. Southern Union, Transcript, at 9-10, 50:2-7. The government shared this view, noting "With respect to fines, restitution and forfeiture, the jury was never given a substantive role at common law." Southern Union, Transcript, at 26:20-22. Government counsel distinguished the roles:

The judge, of course, is operating in a different way than the jury. The jury is finding guilt beyond a reasonable doubt. The judge is applying a preponderance of the evidence standard. This Court in United States v. Watts [519 U.S. 148 (1997)] has recognized that judges can find facts that the jury may have rejected under the higher standard....
Southern Union, Transcript, at 45:14-20.

On this issue, part of the argument focus on a case from 200 years ago. In its brief, the Solicitor General’s Office cited to United States v. Tyler, 11 U.S. 285 (1812), which held that the judge and not the jury could set the fine. See Opposition Brief for Respondent United States, at 11, 12, 42, 43 (citing Tyler). Justice Ginsburg asked Petitioner’s counsel about the case. He noted that the case did not involve application of the Sixth Amendment, which was not discussed in the opinion. Southern Union, Transcript, at 21-22.

Deputy Solicitor General Dreeben noted the the members of the Court on the Tyler case included Chief Justice Marshall and Justice Story "who were well-steeped in common law traditions and well-familiar with how judges would find facts at the time of the founding." The Tyler Court "held unanimously that finding a valuation was a judge function, not a jury function. No valuation was necessary in order for the Court to impose the proper fine." Southern Union, Transcript, at 34:10-12, 22-25.

Justice Antonin Scalia noted in his view Tyler involved an issue of statutory construction as no argument was presented under the Sixth Amendment. Southern Union, Transcript, at 38-39. Deputy Solicitor General Dreeben responded, "I would readily concede, Justice Scalia, that the Sixth Amendment does not appear in the Court's decision in Tyler, but it's difficult for me to understand that a Court that included Chief Justice Marshall, Justice Story and other members who were well-familiar with how common law operated would have adopted an interpretation of a statute that was facially unconstitutional." Southern Union, Transcript, at 38:18-25.

A decision is expected before the end of the Term, most likely by July 2012.


The briefs in the case follow:

On the Merits

Amicus Briefs

Certiorari Briefs

Other Materials


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