By Andrew H. Perellis and Philip L. Comella
In an important decision concerning the application of the Resource Conservation and Recovery Act of 1976 (RCRA) criminal penalties, the U.S. Supreme Court recently held, in Southern Union Co. v. US, __ U.S. ___, 132 S.Ct. 2344, 2012 WL 2344465 (June 21, 2012), that the duration of misconduct underlying the imposition of a criminal fine must be decided by a jury, not the court. In reaching its conclusion, the Court for the first time applied the rule set forth in Apprendi v. New Jersey, 530 U. S. 466 (2000) to criminal fines. In Apprendi, the court held that the Sixth Amendment’s jury-trial guarantee requires that any fact (other than the fact of a prior conviction) that increases the maximium punishment authorized for a particular crime to be proved to a jury beyond a reasonable doubt. But Apprendi and subsequent cases concerning matters where the punishment at stake was imprisonment or the death sentence, not a fine.
In Southern Union, a jury convicted the petitioner, Southern Union Company, on one count of violating RCRA for knowingly stored liquid mercury without a permit at a subsidiary’s facility “on or about September 19,2002 to October 19, 2004.” Under RCRA knowing violations are punishable by a fine of not more than $50,000 for each day of the violation. 42 U. S. C. §6928(d). At sentencing the probation office calculated a maximum fine of $38.1 million, based on the RCRA violation spanning 762 days, from September 19, 2002, through October 19, 2004. Using this fine as the maximum allowable, the district court then imposed a penalty of $6 million plus a “community service obligation” of $12 million.
The petitioner argued that imposing a fine greater than the 1-day penalty of $50,000 would be “unconstitutional under which holds that the Sixth Amendment’s jury-trial guarantee requires that any fact (other than the fact of a prior conviction) that increases the maximum punishment authorized for a particular crime be proved to a jury beyond a reasonable doubt.” The petitioner contended that based on the jury verdict and the district court’s instructions, the only violation the jury necessarily found was for one day. The district court held that Apprendi applies to criminal fines, but concluded from the “content and context of the verdict all together” that the jury properly found a 762-day violation.
On appeal, the First Circuit disagreed with the district court that the jury found a violation of 762 days. But the First Circuit affirmed the sentence because it held that Apprendi does not apply to criminal fines. The Supreme Court reversed and remanded the judgment, finding that Apprendi applies to the imposition of criminal fines. It found that because the jury was not asked to determine the duration of the misconduct (improper storage), the penalty imposed by the district court went beyond the maximum penalty supported by facts determined by the jury.
Although Southern Union did well in having the district court’s penalty assessment overturned and may have increased its negotiating leverage, there is no doubt that on remand, the jury will asked to determine the duration of the storage violation. Southern Union, then, provides a roadmap for the government to make sure that jury instructions in criminal matters cover not only the fact of the violation, but also its duration.