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Judicial fact finding leading up to an order of criminal forfeiture does not violate the Sixth Amendment’s right to a jury trial, the 2nd U.S. Circuit Court of Appeals has ruled. Finding that criminal forfeiture is not part of a “determinate” sentencing scheme of the kind the U.S. Supreme Court found invalid in January, the court upheld a $20.7 million forfeiture ordered by Southern District of New York Judge Michael Mukasey in United States v. Fruchter, 02-1422. Mukasey had ordered the forfeiture from defendant Lawrence Braun, who was convicted of racketeering, conspiracy and mail fraud against customers of American Presort Inc. — a mail sorting and metering business in Manhattan of which he had one-third control. Braun claimed on appeal that the forfeiture violated the Sixth Amendment right to a jury trial because Mukasey, and not a jury, found facts that led to the imposition of the forfeiture. Braun relied on a line of cases that culminated in the Supreme Court’s January decision in United States v. Booker, where the Court found the federal sentencing guidelines unconstitutional because they required a judge to enhance a sentence above the normal guidelines range that is authorized by the jury’s verdict. The Court found that judicial fact finding, by a preponderance of the evidence instead of under the stricter reasonable doubt standard, offended the Sixth Amendment. Braun made this argument in spite of a 1995 decision by the Supreme Court, Libretti v. United States, 516 U.S. 29, which held that the “right to a jury verdict on forfeitability does not fall within the Sixth Amendment’s constitutional protection.” But Libretti, he said, had been fatally undermined by a series of later cases that called into question sentencing enhancements based on judicial fact finding, Apprendi v. New Jersey, Blakely v. Washington and, finally, the Booker case. Chief Judge John M. Walker, Jr. and Judges Barrington D. Parker, Jr. and Richard Wesley rejected that argument for the 2nd Circuit. Writing for the court, Walker said, “While Libretti remains the law until the Supreme Court expressly overturns it … we address Braun’s reading of Blakely and Booker because we recognize that the conception of criminal punishment contained in those opinions is not necessarily the same conception of criminal punishment underlying the analysis in Libretti.” “We conclude that the preponderance standard established in Libretti nevertheless remains the rule,” he said. First, Walker said, “ Booker itself suggested that a district court’s forfeiture determination [under the racketeering forfeiture provision] does not offend the Sixth Amendment.” “More important, however, and ultimately fatal to Braun’s argument is the distinction between criminal forfeiture proceedings and determinate sentencing regimes,” of the kind addressed in Blakely and Booker. “In a determinate sentencing regime, a jury finds facts that support a conviction,” he said. “That conviction, in turn, authorizes the imposition of a sentence within a specified range, established either by statute or administrative guidance, which we call a determinate sentence,” and the Sixth Amendment is violated where a judge increases punishment beyond that range. ‘DIFFERENT ANIMAL’ But in criminal forfeiture, Walker said, “there is no such previously specified range.” “A judge cannot exceed his constitutional authority by imposing a punishment beyond the statutory maximum,” he said. “Criminal forfeiture is, simply put, a different animal from determinate sentencing.” Braun, who was acquitted of mail fraud against the Postal Service and of making false statements to the Postal Service, also argued that Mukasey erred in using acquitted conduct as part of the basis for the forfeiture punishment. The circuit disagreed, noting that the forfeiture provision of the Racketeer Influenced and Corrupt Organization Act “is broadly drafted and has long been liberally construed.” “Although we have not previously considered whether proceeds derived from conduct forming the basis of the charge of which defendant was acquitted can be counted as ‘proceeds’ of racketeering activity, it seems plain that they can,” Walker said. Joshua Dratel and Marshall A. Mintz represented Braun. Assistant U.S. Attorneys Robin W. Morey, Sarah Lai, Barbara A. Ward and Laura Grossfield Birger represented the government.

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