United States v. Gary Kovall
857 F.3d 1060
| 9th Cir. | 2017Background
- Defendants Kovall and Heslop pled guilty to conspiracy and federal programs bribery involving kickbacks from inflated Tribal contracts; district court ordered restitution to the Twenty-Nine Palms Band under the MVRA.
- The district court held hearings, heard victim (the Tribe), the government, and defendants, and awarded restitution broken into "direct loss" and "other fees."
- Defendants appealed the restitution calculation; the Tribe also filed a direct appeal challenging the amounts awarded.
- Ninth Circuit asked parties to brief whether a crime victim (non-party) may directly appeal an MVRA restitution award.
- Court analyzed three statutory schemes (VWPA, MVRA, CVRA), Article III standing, statutory appellate jurisdiction, and due process (Mathews balancing).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May a victim directly appeal an MVRA restitution order? | Tribe: MVRA makes restitution mandatory and partly compensatory, so Tribe has injury in fact and therefore a right to appeal. | Govt/Default rule: Only parties (defendant or government) have statutory right to appeal; MVRA/CVRA do not authorize victims to appeal. | No — victims may not directly appeal restitution awards; Tribe's appeal dismissed. |
| Does the Tribe have Article III standing to challenge MVRA restitution? | Tribe: MVRA entitlement creates a concrete property interest — injury in fact exists when full restitution not ordered. | Opposing view: Non-parties typically lack standing to appeal criminal judgments. | Yes — Tribe has Article III standing (injury, causation, redressability). |
| Does MVRA or CVRA grant an implied statutory right to appeal? | Tribe: MVRA's mandatory language and participation provisions imply an appellate right. | Court/Govt: Statutory scheme and §3771(d)(4) show Congress empowered government to assert victims' rights on appeal, not victims themselves. | No — MVRA/CVRA do not confer a direct right to appeal; Congress provided other remedies. |
| Does Due Process require a victim's right to direct appeal? | Tribe: Depriving MVRA restitution without appellate remedy risks violation of due process. | Court: CVRA grants procedures (district hearing, seek relief, writ of mandamus, government appeal) sufficient under Mathews. | No — Mathews balancing shows existing statutory remedies are adequate; due process does not require direct victim appeals. |
Key Cases Cited
- United States v. Mindel, 80 F.3d 394 (9th Cir. 1996) (held VWPA beneficiaries lack standing to pursue appeal)
- United States v. Slovacek, 699 F.3d 423 (5th Cir.) (MVRA victims may not directly appeal restitution)
- United States v. Stoerr, 695 F.3d 271 (3d Cir.) (rejected victim appeals under MVRA; analyzed statutory scheme)
- United States v. Aguirre-González, 597 F.3d 46 (1st Cir.) (held victims lack direct appeal right under MVRA)
- United States v. Hunter, 548 F.3d 1308 (10th Cir.) (same)
- United States v. United Sec. Sav. Bank, 394 F.3d 564 (8th Cir.) (victims cannot appeal restitution orders; distinguished post-judgment lien cases)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing framework)
- Diamond v. Charles, 476 U.S. 54 (1986) (nonparties generally lack standing to defend criminal statutes)
- Whitmore v. Arkansas, 495 U.S. 149 (1990) (standing limits for nonparties challenging criminal sentences)
- Kelly v. Robinson, 479 U.S. 36 (1986) (restitution imposition typically reflects penal goals)
- Board of Regents v. Roth, 408 U.S. 564 (1972) (property interest/legitimate claim of entitlement analysis)
- United States v. Perry, 360 F.3d 519 (6th Cir.) (allowed appeal in context of removal of post- restitution judgment lien; limited to lien context)
- Kenna v. U.S. Dist. Court, 435 F.3d 1011 (9th Cir.) (procedural rules for §3771(d)(3) mandamus relief)