Ninth Circuit denies relief in FCPA appeal

Hollywood producers Gerald and Patricia Green lost an appeal of part of their FCPA-related sentence yesterday when a three-judge panel denied their request for relief from a $250,000 restitution order.

A colorful opinion written by Chief Judge Alex Kozinski from the Ninth Circuit Court of Appeals said the restitution order against the Greens was proper even though prosecutors could not show identifiable victims who suffered any loss.

The Greens were convicted in a jury trial in Los Angeles of FCPA and related violations in 2009. The charges against them arose out of bribes they paid to land contracts for the Bangkok film festival.

They were the first husband and wife convicted of FCPA offenses and each served six-month jail terms.

Gerald Green produced the films Rescue Dawn, Salvador, and Diamonds, among others.

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Here’s part of Judge Kozinski’s opinion:

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 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). . . .

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 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.

The full opinion is here.