FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GERALD GREEN,

Defendant-Appellant.

No. 10-50519

D.C. No. 

2:08-cr-00059-

GW-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PATRICIA GREEN,

Defendant-Appellant,

JEFFREY F. ALLEN,

Movant.

No. 10-50524

D.C. No. 

2:08-cr-00059-

GW-2

OPINION

Appeals from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding
2 UNITED STATES V. GREEN

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

Argued and Submitted 

January 9, 2013—Pasadena, California

Filed July 11, 2013

Before: Alex Kozinski, Chief Judge, M. Margaret

McKeown and Milan D. Smith, Jr., Circuit Judges.

Opinion by Chief Judge Kozinski

SUMMARY

*

Criminal Law

The panel affirmed a restitution order in a case in which

the defendants claimed that the district court violated

Apprendi v. New Jersey, 530 U.S. 466 (2000), when it

ordered them to pay restitution without a jury’s finding that

there was an identifiable victim who suffered a pecuniary

loss.

The panel held that Southern Union Co. v. United States,

132 S. Ct. 2344 (2012), which held that Apprendi applies to

the fact-finding need to trigger criminal fines, is not clearly

irreconcilable with this court’s precedent holding that

Apprendi does not apply to restitution orders.
UNITED STATES V. GREEN 3

COUNSEL

Harold J. Krent (argued), Chicago-Kent College of Law,

Chicago, Illinois; Marilyn E. Bednarski, Kaye, McLane &

Bednarski, LLP, Pasadena, California, for DefendantsAppellants.

Scott A. C. Meisler (argued), Criminal Division, Appellate

Section, Lanny A. Breuer, Assistant Attorney General, John

D. Buretta, Acting Deputy Assistant Attorney General,

United States Department of Justice, Washington, D.C.;

André Birotte, Jr., United States Attorney, Los Angeles,

California, for Plaintiff-Appellee.

Steve Cochran, Katten Muchin Rosenman, LLP, Los Angeles,

California, for Movant Jeffrey F. Allen.

OPINION

KOZINSKI, Chief Judge:

Forget life and liberty. This appeal concerns another

precious thing we take from criminal defendants: their

money.

Defendants Gerald and Patricia Green claim the district

court violated Apprendi v. New Jersey, 530 U.S. 466 (2000),

when it ordered them to pay restitution without a jury’s

finding that there was “an identifiable victim or victims” who

suffered a “pecuniary loss”—findings required to trigger

restitution under the Mandatory Victims Restitution Act.

Though our caselaw holds that Apprendi doesn’t apply to

restitution orders, the Greens invite us to distinguish our
4 UNITED STATES V. GREEN

cases or else overrule them in light of the Supreme Court’s

recent decision in Southern Union Co. v. United States, 132

S. Ct. 2344 (2012).

Facts

Gerald and Patricia Green sure knew how to put on a

show. Movie industry veterans, the husband-and-wife team

won a slew of contracts from the Tourism Authority of

Thailand to run the Bangkok International Film Festival and

to direct other promotional projects. The film festival, the

largest of the contracts, flourished during the Greens’ four

years at the helm, generating large profits—$140 million by

one marketing firm’s estimates—and ranking among the top

15 film festivals in the world. More than 1600 journalists

attended the events in 2006, when one industry insider

predicted the festival “will become the Cannes Film Festival

of the East within a year or two.”

The Greens looked to be on their way to silver-screen

success, but there was a dark secret that would get in the way:

The Greens had secured their lucrative contracts thanks, at

least in part, to $1.8 million in payments to the governor of

Thailand’s Tourism Authority. The Greens sometimes paid

the governor directly, other times through the governor’s

daughter or one of the governor’s friends. In all, the illicit

payments amounted to roughly 13 percent of the total value

of the Greens’ contracts.

In 2006, a confidential informant alerted the FBI to these

payments, leading to a year-long investigation and a 22-count

indictment on Foreign Corrupt Practices Act (FCPA), money

laundering, conspiracy and tax charges. The Greens were

convicted by a jury. At sentencing, the district court imposed
UNITED STATES V. GREEN 5

 The parties dispute whether restitution was ordered under the MVRA 1

or the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663.

But both statutes require a finding that there was a victim who suffered a

loss, so the Apprendi question is in play either way.

 The Greens didn’t raise an Apprendi objection to these findings or the 2

restitution order. The government argues we should review for plain

error. We decline to do so because the legal issues in this case fall within

the exceptions to plain error review described by United States v.

Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009).

six months’ imprisonment, three years’ supervised release

and $250,000 in restitution, for which Gerald and Patricia are

jointly and severally liable.

The Greens’ appeal concerns only the restitution.

Discussion

I. Restitution’s Triggers

To impose restitution under the Mandatory Victims

Restitution Act (MVRA), there must be a showing that “an

identifiable victim or victims has suffered a physical injury or

pecuniary loss.” 18 U.S.C. § 3663A(c)(1)(B). The district 1

judge found there was a victim and that “[t]echnically . . .

there [was] a loss in terms of the bribery figure amount.” So 2

did the Presentence Investigation Report. But the jury never

had a chance to make these findings, as there was no special

verdict. Nor do the convictions necessarily imply a victim or

a loss. For example, the FCPA jury instructions allowed for

a conviction if the jury found the Greens had acted

“corruptly” in making a payment to a foreign official “for the

purpose of . . . securing any improper advantage.” As the

Greens argue, the FCPA convictions would be “consistent
6 UNITED STATES V. GREEN

 Patricia Green’s convictions for false subscription of two tax returns 3

do necessarily imply a pecuniary loss to a victim—the federal

government. But the prosecution elected not to seek restitution for these

convictions.

with findings that the payments were investments” or “bribes

drawn from the Greens’ own profits.” Nor do the Greens’

other convictions require finding a victim or a pecuniary

loss. Because the findings triggering restitution weren’t 3

made by the jury, we must decide whether Apprendi applies.

II. Apprendi’s Application to Restitution

Apprendi held that, “[o]ther 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.

at 490. “[T]he ‘statutory maximum’ for Apprendi purposes

is the maximum sentence a judge may impose solely on the

basis of the facts reflected in the jury verdict or admitted by

the defendant.” Blakely v. Washington, 542 U.S. 296, 303

(2004) (emphasis omitted). Apprendi applies to the factfinding needed to trigger capital punishment, Ring v. Arizona,

536 U.S. 584, 609 (2002), and criminal fines, Southern

Union, 132 S. Ct. at 2357, but not the fact-finding needed to

make concurrent sentences consecutive, Oregon v. Ice, 555

U.S. 160, 164 (2009).

While the Supreme Court has yet to hold whether

Apprendi applies to restitution, it has said in dictum that

“[i]ntruding Apprendi’s rule into” decisions to impose

“statutorily prescribed fines and orders of restitution” would

“cut the rule loose from its moorings.” Id. at 171–72. That’s

some indication the Court would not apply Apprendi to
UNITED STATES V. GREEN 7

restitution, although the recent Southern Union decision

declined to follow this dictum, at least as it concerned

criminal fines. 132 S. Ct. at 2352 n.5 (“[O]ur statement in Ice

was unnecessary to the judgment and is not binding.”).

Our own court, however, has categorically held that

Apprendi and its progeny—Blakely and United States v.

Booker, 543 U.S. 220 (2005)—don’t apply to restitution. In

United States v. Bussell, 414 F.3d 1048, 1060 (9th Cir. 2005),

we held that “the district court’s orders of restitution and

costs” under the VWPA “are unaffected by the changes

worked by Booker.” See also United States v. DeGeorge, 380

F.3d 1203, 1221 (9th Cir. 2004) (VWPA restitution “is

unaffected by Blakely”); United States v. Gordon, 393 F.3d

1044, 1051 n.2 (9th Cir. 2004) (defendant’s “Blakely

argument is foreclosed by our recent decision in United States

v. DeGeorge”). Under the existing law of the circuit, then,

defendants’ Apprendi claim must fail.

Defendants nonetheless advance two reasons for breaking

with precedent:

A. The “Trigger” Argument

The Greens say our cases have rejected Apprendi’s

application to determinations of the amount of restitution, not

to determinations of whether restitution is triggered at all. As

a result, they insist, we can apply Apprendi to the trigger

determination without running afoul of our caselaw. At oral

argument the Greens theorized a regime under which

Apprendi would apply to the determination of the trigger but

not the amount.
8 UNITED STATES V. GREEN

We are not persuaded. First, this approach contravenes

the categorical nature of our statements that restitution is

“unaffected” by Apprendi. See page 7 supra. These

categorical statements control even though the cases from

which they issued didn’t specifically address the trigger

argument. A panel may adopt a categorical rule as circuit law

without explicitly rejecting every conceivable counterargument. We further hesitate to adopt the trigger argument

because the Greens can’t cite any case—state or federal—that

has accepted it, and because the two circuits that considered

it, rejected it. See United States v. Milkiewicz, 470 F.3d 390,

403 (1st Cir. 2006); United States v. Reifler, 446 F.3d 65,

115–18 (2d Cir. 2006).

Finally, applying Apprendi to the determination of the

trigger but not the determination of the amount would result

in unacceptable cognitive dissonance. If Apprendi covers the

determination whether there are any victims at all, shouldn’t

it also cover the determination whether there’s one victim

who suffered a $1000 loss as opposed to 1000 victims who

suffered a combined $1,000,000 loss? It’s hard to justify

Apprendi protections for the determination of the first victim

but not the 999 to follow, each of which would increase the

amount of restitution imposed upon the defendant. And if we

treat each victim-determination as a separate trigger, we’re

effectively applying Apprendi to the determination of the

amount. That’s not so much distinguishing our precedent as

overruling it.

B. Southern Union and the Miller v. Gammie Standard

The Greens next urge us to overrule our caselaw in light

of the Supreme Court’s recent decision in Southern Union,

where a gas company was charged with violating the
UNITED STATES V. GREEN 9

Resource Conservation and Recovery Act (RCRA), which

provides for a maximum criminal fine of $50,000 per day of

violation. 132 S. Ct. at 2349. The indictment alleged the

company had violated RCRA for a period of 762 days, but the

jury was instructed that it could convict if it found even a

single day’s violation. Id. And convict the jury did. Id. At

sentencing, the court calculated a “maximum potential fine of

$38.1 million”—$50,000 x 762 days—“from which it

imposed a fine of $6 million and a ‘community service

obligatio[n]’ of $12 million.” Id. Defendant objected that it

had been convicted of just one day’s violation, so any fact

resulting in a fine over the daily maximum had to be found by

a jury. Id. The Supreme Court agreed, applying Apprendi to

criminal fines. Id. at 2349, 2357.

Southern Union provides reason to believe Apprendi

might apply to restitution. As the Court held: “In stating

Apprendi’s rule, we have never distinguished one form of

punishment from another. Instead, our decisions broadly

prohibit judicial factfinding that increases maximum criminal

‘sentence[s],’ ‘penalties,’ or ‘punishment[s]’—terms that

each undeniably embrace fines.” Id. at 2351. The Greens say

that “by applying Apprendi to criminal fines, Southern Union

strongly signals that Apprendi applies to criminal restitution

as well.” But “strong[] signals” aren’t enough. For a threejudge panel to overrule circuit precedent, the intervening case

must “undercut the theory or reasoning underlying the prior

circuit precedent in such a way that the cases are clearly

irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th

Cir. 2003) (en banc) (emphasis added). Southern Union

doesn’t cross that threshold. Even if it chips away at the

theory behind our restitution cases, it’s not “clearly

irreconcilable” with our holdings that restitution is

“unaffected” by Apprendi.
10 UNITED STATES V. GREEN

First, the obvious: Southern Union deals with criminal

fines, not restitution. It’s far from “clear[]”—Miller’s

term—that a rule governing one would govern the other.

Indeed, it’s not even clear that restitution’s a form of

punishment. We’ve held in some contexts that “restitution

under the MVRA is punishment.” United States v. Dubose,

146 F.3d 1141, 1145 (9th Cir. 1998); see United States v.

Ballek, 170 F.3d 871, 876 (9th Cir. 1999). But in other

contexts, we’ve held it’s not. See United States v. Phillips,

704 F.3d 754, 771 (9th Cir. 2012) (“[F]orfeiture and

restitution serve entirely distinct purposes: ‘Congress

conceived of forfeiture as punishment . . . . The purpose of

restitution . . . , however, is not to punish the defendant, but

to make the victim whole again.’” (quoting United States v.

Newman, 659 F.3d 1235, 1241 (9th Cir. 2011))); Gordon, 393

F.3d at 1052 n.6 (“[T]he MVRA’s purpose is to make the

victims whole; conversely, the Sentencing Guidelines serve

a punitive purpose.”). Sometimes we’ve held it’s a hybrid,

with “both compensatory and penal purposes.” United States

v. Rich, 603 F.3d 722, 729 (9th Cir. 2010). Even if Apprendi

covers all forms of punishment, restitution’s not “clearly”

punishment, so we can’t rely on Southern Union to overrule

our restitution precedents.

Second, Southern Union concerned a determinate

punishment scheme with statutory maximums: “[O]ur

decisions broadly prohibit judicial factfinding that increases

maximum criminal ‘sentence[s],’ ‘penalties,’ or

‘punishment[s].’” 132 S. Ct. at 2351 (emphasis added).

Restitution carries with it no statutory maximum; it’s pegged

to the amount of the victim’s loss. A judge can’t exceed the

non-existent statutory maximum for restitution no matter

what facts he finds, so Apprendi’s not implicated.
UNITED STATES V. GREEN 11

The Fourth Circuit has already held that Southern Union

doesn’t apply to restitution because “there is no prescribed

statutory maximum in the restitution context.” United States

v. Day, 700 F.3d 713, 732 (4th Cir. 2012) (emphasis in

original). And, prior to Southern Union, other circuits came

to the same conclusion. See Milkiewicz, 470 F.3d at 404 (1st

Cir.); Reifler, 446 F.3d at 117–20 (2d Cir.); United States v.

Sosebee, 419 F.3d 451, 454 (6th Cir. 2005). Similarly, our

own court held last December that Southern Union doesn’t

apply to criminal forfeiture because, like restitution, forfeiture

lacks a statutory maximum: “The Southern Union Court

explicitly held . . . that there could be no ‘Apprendi violation

where no maximum is prescribed.’” Phillips, 704 F.3d at 770

(quoting Southern Union, 132 S. Ct. at 2353). But see

Southern Union, 132 S. Ct. at 2350–51 (Apprendi applies to

fines where the maximum is based on “the amount of . . . the

victim’s loss.”). This difficulty with applying Southern

Union—and, by extension Apprendi—to an indeterminate

scheme further undermines any claim that Southern Union is

“clearly irreconcilable” with our restitution caselaw.

III. Conclusion

Our precedents are clear that Apprendi doesn’t apply to

restitution, but that doesn’t mean our caselaw’s wellharmonized with Southern Union. Had Southern Union come

down before our cases, those cases might have come out

differently. Nonetheless, our panel can’t base its decision on

what the law might have been. Such rewriting of doctrine is

the sole province of the court sitting en banc. Faced with the
12 UNITED STATES V. GREEN

question whether Southern Union has “undercut the theory or

reasoning underlying the prior circuit precedent in such a way

that the cases are clearly irreconcilable,” we can answer only:

No.

AFFIRMED.