Second Circuit deems Blakely/Booker inapplicable to forfeitures

In perhaps the biggest decision of a big day in the circuits, on Tuesday the Second Circuit in US v. Fruchter, No. 02-1422 (2d Cir. June 14, 2005) (available here), rejected a Blakely/Booker claim lodged against a “forfeiture amount [that] was based in part on facts found by the district judge by a preponderance of the evidence.”  Though noting that the defendant’s “argument has a certain surface appeal,” the Second Circuit concluded it should not extend Blakely/Booker to forfeitures:

Blakely and Booker prohibit a judicial increase in punishment beyond a previously specified range; in criminal forfeiture, there is no such previously specified range. A judge cannot exceed his constitutional authority by imposing a punishment beyond the statutory maximum if there is no statutory maximum. Criminal forfeiture is, simply put, a different animal from determinate sentencing. In sum, Braun’s Sixth Amendment argument must fail.

We do not read Booker and Blakely to require proof beyond a reasonable doubt in indeterminate punishment schemes, such as RICO forfeiture.  And, in any event, Libretti remains the determinative decision.  Accordingly, the district court did not err when it applied a preponderance standard to the determination of Braun’s forfeiture amount.