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United States v. Pfaff, No. 09-1702-cr (2d Cir. August 27, 2010)(Jacobs, Winter, McLaughlin, CJJ) (per curiam)

Apprendi rears its head once again in this latest per curiam, this time with respect to a fine.

A jury convicted John Larson, one of the defendants in the KPMG tax shelter case, of twelve counts of tax evasion under 26 U.S.C. 7201, but did not make a finding as to the pecuniary loss Larson caused or the gain he derived from the conduct. At sentencing, the district judge found a “gross pecuniary loss” of more than $100 million. Since 18 U.S.C. § 3571(d) authorizes a fine of up to twice the loss, the judge determined that the statutory maximum fine would be more than $200 million. The court ultimately imposed a $6 million fine.

While no Larson made no Apprendi objection, the circuit found plain error and vacated the fine. Section 3571(b) establishes a maximum fine of $250,000 per felony count of conviction. Section 3571(d), however, allows an alternative fine of up to twice the gain or loss resulting from the offense. But this alternative provision implicates Apprendi, since “any fact that increases the penalty … beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The “statutory maximum” for Apprendi purposes is the maximum sentence that a judge can impose based solely on the facts reflected in the jury verdict or admitted by the defendant.

Accordingly, absent a jury finding as to loss or gain, Larson’s statutory maximum fine was $250,000 for each of the twelve counts, or $3 million. By fining him more than that based on its own loss finding, the district court violated Apprendi.

Nor is a different outcome required by the cases holding that Apprendi does not apply to restitution or forfeiture calculations. Unlike those financial penalties, criminal fines are subject to statutory maximums. Thus, when a jury does not make a finding as to pecuniary gain or loss, the statute’s default maximums “cap the amount a district court may fine the defendant.”