Friday, July 12, 2013
Ninth Circuit Upholds Restitution Order in Filmfest Bribery Case
By a MetNews Staff Writer
An order requiring a Hollywood producer couple—convicted of bribing a Thai tourism official in exchange for contracts to run the Bangkok Film Festival and other projects—to pay $250,000 in restitution was affirmed yesterday by the Ninth U.S. Circuit Court of Appeals.
Judges rejected arguments by Gerald and Patricia Green that U.S. District Judge George H. Wu deprived them of their right to a jury trial by basing the restitution order on facts that were not found by the jury that convicted them of violating the Foreign Corrupt Practices Act.
The FCPA prohibits U.S. citizens from bribing foreign officials. The Greens were also convicted of money laundering and tax violations.
Chief Judge—and noted film buff—Alex Kozinski explained that the Greens “sure knew how to put on a show,” generating profits that might have been as much as $140 million and making the Bangkok festival one of the 15 largest in the world. But after they had been at the helm for four years, an informant spilled the “dark secret,” Kozinski explained, that they had paid about $1.8 million to the governor of the Thai Tourism Authority, either directly or through the official’s daughter or friends.
An attorney for the couple once told TheWrap, a Hollywood website, that the government—which had never previously prosecuted anyone in the film industry under the FCPA—had an unrealistic idea of the real cost of making movies outside North America and Western Europe.
“The fact is, in the movie business there are many things that have to be taken care of, and that have to be paid in local areas,” Jerry Mooney said.
Convicted by a jury, the Greens were sentenced to six months in prison, plus three years supervised release—six months of it under house arrest—and restitution.
Prosecutors, who had asked for 10-year sentences—after seeking much longer terms in their original sentencing memorandum—initially appealed the sentences, but withdrew their appeal. The Greens, who served their terms and were released in May 2011, according to Bureau of Prison records, appealed only the restitution order.
“Forget life and liberty,” Kozinski explained. “This appeal concerns another precious thing we take from criminal defendants: their money.”
Gerald Green, producer of “Salvador” and “Rescue Dawn,” and his wife argued that there is no victim entitled to restitution in the case and that Apprendi v. New Jersey, 530 U.S. 466 (2000), applies to restitution orders. The case holds that when the law permits an increase in what would otherwise be the maximum sentence, based on specific factual findings, the right to trial by jury extends to those facts.
The Ninth Circuit has held in several cases that Apprendi and its progeny do not apply to restitution orders. But the Greens argued that the circuit’s cases only apply to the amount of restitution, not to the question of whether restitution is triggered at all.
That approach “would result in unacceptable cognitive dissonance,” the chief judge said.
“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?”, Kozinski asked.
He went on to acknowledge that the Ninth Circuit cases aren’t “well-harmonized with” Southern Union Co. v. United States, 132 S. Ct. 2344 (2012), which held that Apprendi applies to the fact-finding needed to trigger criminal fines. But since the cases aren’t totally irreconcilable, any change in the circuit’s caselaw would have to come from an en banc panel, Kozinski said.
The case is United States v. Green, 10-50519.
Copyright 2013, Metropolitan News Company