[authors: Thomas S. Brown, Thomas F. Carlucci, Scott L. Fredericksen, Jaime B. Guerrero, Pamela L. Johnston, Lisa M. Noller, David W. Simon, Michael J. Tuteur]
In a decision that will impact white collar criminal trials — and potentially civil enforcement trials in which the government agency seeks substantial civil monetary penalties — the U.S. Supreme Court recently held in Southern Union v. United States, No. 11-94 (Sup. Ct. June 21, 2012) that facts necessary to the imposition of a substantial criminal fine must be determined by the jury, not the District Court. The Supreme Court ruled that where a defendant is facing “substantial” or “severe” criminal fines, a jury, not a judge, must determine the facts that support the imposition of criminal fines thereby overturning the First Circuit’s decision that upheld an $18 million fine against Southern Union Company, a natural gas distributor. The decision, authored by Justice Sotomayor, is a clear extension of the Sixth Amendment requirement that a jury must determine any fact that increases a defendant’s maximum potential sentence, referred to as the “Apprendi rule.”