Crim claims his sentence violated the Ex Post Facto Clause of the United States Constitution, which states: "No bill of attainder or ex post facto Law shall be passed." U.S. Const. art. I, § 9, cl. 3. This Clause proscribes laws that change a punishment and inflict a greater punishment than the standards in effect when the crime was committed. Peugh v. United States, 133 S.Ct. 2072, 2077-78 (2013) (quoting Calder v. Bull, 3 U.S. 386, 390 (1798)).
After Crim's conviction, Congress passed the Firearm Excise Tax Improvement Act of 2010. Among other things, the law authorizes the IRS to use its administrative powers to collect on criminal restitution when the Government is the victim by treating the criminal restitution as a tax. See 26 U.S.C. § 6201(a)(4). Before 2010, the IRS could receive restitution payments like any other victim entitled to criminal restitution but it lacked the authority to actively collect restitution. Because the IRS lacked this authority when Crim participated in the conspiracy, he claims this subsection is an unconstitutional ex post facto law as applied to him.
Crim's argument is best described as contingent and premature, touching as it does on an enforcement mechanism that the IRS has not yet employed to collect the restitution Crim owes to the United States. If the IRS chooses to use this power against Crim, he may challenge its legality at that time. Nothing in the restitution order before us implicates the IRS's collection authority under 26 U.S.C. § 6201(a)(4).Restitution would implicate the Ex Post Facto clause only if it were criminal punishment. And, if it were criminal punishment, logically, under Apprendi v. New Jersey, 530 U.S. 466 (2000), here, the factual bases for restitution would need to be determined by a jury beyond a reasonable doubt rather than by the judge by a preponderance of the evidence.
I previously blogged on the underlying issue of whether restitution is criminal punishment. See Is Restitution a Criminal Penalty Requiring the Jury to Speak? (Federal Tax Crimes Blog 12/6/12), here, discussing United States v. Wolfe, 701 F.3d 1206 (7th Cir. 2012), here. The issue was whether the jury was required to determine restitution. Wolfe, adopting then then minority view, held that restitution was not criminal punishment and thus the judge rather than the jury could determine restitution. See also DOJ Tax CTM 44.01, here (not citing Wolfe, but noting the split in Circuits). For more recent cases citing Wolfe, see United States v. Shmuckler, 911 F. Supp. 2d 362, 370 (ED Va. 2012); and United States v. Bengis, 2013 U.S. Dist. LEXIS 83992, p. 22 fn. 40 (SDNY 2013) (citing Wolfe and United States v. Pfaff, 619 F.3d 172, 175 (2d Cir. 2010)).
My prediction is that the new provisions permitting immediate assessment of tax restitution will survive both an Ex Post Facto challenge and an Apprendi challenge. At least as respects the immediate assessment, the new provisions merely accelerate the previous procedure requiring notice of deficiency and possible pre-assessment litigation. One of the troubling aspects, though, is that the taxpayer may not contest the amount of the restitution and, to the extent that restitution might overstate the real tax liability, it would be punishment. See What Can Be Done If Tax Restitution Exceeds the Tax Due (Federal Tax Crimes Blog 9/2/13), here.
A related concern about criminal punishment is the Double Jeopardy prohibition. That prohibition does not apply if the Government exaction at issue is not a punishment. In Helvering v. Mitchell, 303 U.S. 391 (1938), here, the Court held that the civil fraud penalty (then 50% of the entire understatement) was remedial rather than a punishment and thus did not invoke the Double Jeopardy prohibition. It seems to me that this same analysis would apply to restitution. Restitution merely provides a mechanism to remedy the harm done to the victim of the crime.