Her Majesty the Queen in Right of Canada v. United States District Court

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In re HER MAJESTY THE QUEEN IN RIGHT OF CANADA. Her Majesty the Queen in Right of Canada, Petitioner, v. United States District Court for the District of Nevada, Las Vegas, Respondent, Nathan “Nati” Stoliar aka Natan Stoliar; Clark County D.A. Office; Yakov Hefetz; Robert Casey; AD Astra Energy, Inc.; United States of America, Real Parties in Interest.

No. 15-71346

United States Court of Appeals, Ninth Circuit

Submitted and Filed May 12, 2015

785 F.3d 1273

seriousness of the offense, to promote respect for the law, to afford adequate deterrence of criminal conduct, and to protect the public from further crimes of this defendant.” The court‘s choice to not robotically recite every other consideration enumerated under § 3553(a) does not amount to reversible error. See

United States v. Nissen, 666 F.3d 486, 491 (8th Cir. 2012) (“[T]here is no requirement that the district court recite every § 3553(a) factor’ during sentencing.” (quoting

United States v. Mees, 640 F.3d 849, 855 (8th Cir. 2011)));

United States v. Blackmon, 662 F.3d 981, 988 (8th Cir. 2011) (“[D]istrict courts are not required to make ‘robotic incantations that each statutory factor has been considered.” (quoting

United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005)))). Similarly, the court was not required to robotically recite every other sentencing-related argument that Ruiz-Salazar raised, including his arguments about his alleged lack of access to a Fast-Track program. See

United States v. Longarica, 699 F.3d 1010, 1012 (8th Cir. 2012) (holding that a defendant‘s arguments about his lack of access to a Fast-Track program “did not require the district court to acknowledge, sua sponte, that it would have discretion to take this factor into account” in deciding whether to vary a sentence downward);

United States v. Straw, 616 F.3d 737, 743 (8th Cir. 2010) (“The district court is not required to address on record every argument set forth by a defendant.“).

Ruiz-Salazar‘s argument that the court improperly weighed the sentencing factors that it considered also fails. Ruiz-Salazar disagrees with the court‘s balancing of the relevant considerations but does not show that the court committed reversible error by exceeding its broad discretion. See

United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009) (“The district court has wide latitude to weigh the § 3553(a) factors in each case and assign some factors greater weight than others in determining an appropriate sentence.” (citing

Gall v. United States, 552 U.S. 38, 50-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)));

United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (“[I]t will be the unusual case when we reverse a district court sentence—whether within, above, or below the applicable Guidelines range—as substantively unreasonable.” (quoting

United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)))).

After having thoroughly reviewed the record in this case, we hold that Ruiz-Salazar‘s bottom-of-the-range sentence was neither procedurally nor substantively unreasonable.

III. Conclusion

Accordingly, we affirm the district court‘s sentencing decision.

Todd M. Leventhal, Leventhal & Associates, Las Vegas, NV, for Petitioner.

David Z. Chesnoff and Richard A. Schonfeld, Chesnoff & Schonfeld, Las Vegas, NV, for Real Party in Interest Nathan “Nati” Stoliar.

Daniel G. Bogden, United States Attorney, Elizabeth Olson White, Appellate Chief and Assistant United States Attorney, United States Attorney‘s Office, Reno, NV; John C. Cruden, Assistant Attorney General, and Wayne D. Hetten-bach, Senior Trial Attorney, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for Real Party in Interest United States of America.

Before: GOODWIN, FARRIS, and FRIEDLAND, Circuit Judges.

OPINION

PER CURIAM:

This is a petition for a writ of mandamus filed pursuant to the Crime Victims’ Rights Act (“CVRA“), 18 U.S.C. § 3771.

Defendant Nathan Stoliar was convicted and sentenced on April 9, 2015, for conspiracy to commit criminal offenses and to defraud the United States in violation of 18 U.S.C. § 371; conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h); two counts of wire fraud and aiding and abetting in violation of 18 U.S.C. §§ 1343 and 2; and making false statements related to the Clean Air Act and aiding and abetting in violation of 42 U.S.C. § 7413(c)(2)(A) and 18 U.S.C. § 2. Stoliar‘s convictions were based on fraudulent schemes involving the false generation of renewable fuel credits under United States law, false representations regarding the type of fuel being sold, and the export of biodiesel without retiring or purchasing renewable energy credits adequate to cover the exported amount as required under United States law.

On February 18, 2015, counsel for Canada‘s Department of Justice filed a letter in the district court, asserting that Canada was a victim of Stoliar‘s crimes, and seeking a share in restitution. On April 2, 2015, petitioner Her Majesty the Queen in Right of Canada (“Canada“) filed in the district court a petition for an order of restitution from Stoliar in the amount of 1,233,065.32 CAD. Stoliar was sentenced on April 9, 2015, and the district court heard argument on Canada‘s petition.¹ On April 21, 2015, the district court entered an order denying restitution to Canada. On May 4, 2015, Canada filed this petition, timely challenging the denial of restitution.

In reviewing CVRA mandamus petitions, this court does not balance the factors outlined in

Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir. 1977). See

Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006). Rather, we “must issue the writ whenever we find that the district court‘s order reflects an abuse of discretion or legal error.”

Id.

This petition is filed under the CVRA, but the CVRA is not a substantive basis for an award of restitution. Rather, it confirms that a crime victim has a right to “full and timely restitution as provided in law.” 18 U.S.C. § 3771(a)(6).² A petitioner seeking restitution under the CVRA must also rely on a substantive restitution record and the district court‘s written order enable us to review this petition on the merits.

statute. Petitioner sought restitution pursuant to the Mandatory Victims Restitution Act (“MVRA“), 18 U.S.C. § 3663A(a)(1), (c)(1). The MVRA requires restitution to victims of offenses against property, “including any offense committed by fraud or deceit.” 18 U.S.C. § 3663A(c)(1)(A)(ii).³ The amount of loss for the purpose of setting restitution must be proved by a preponderance of the evidence.

United States v. Gamma Tech Indus., 265 F.3d 917, 924 (9th Cir. 2001).

Stoliar was convicted of crimes that require proof of a “scheme, conspiracy, or pattern of criminal activity,” so restitution may be ordered for all persons directly harmed by the entire scheme. Such restitution is not limited to harm caused by the particular counts of conviction (as it would be absent the scheme element). See

United States v. Booth, 309 F.3d 566, 575-76 (9th Cir. 2002). In this context, a restitution order may be based on related but uncharged conduct that is part of a fraud scheme. See

United States v. Grice, 319 F.3d 1174, 1177 (9th Cir. 2003) (affirming restitution of loss from uncharged conduct beginning prior to the effective date of the MVRA). The harm to the victim must, however, be closely related to the scheme, rather than tangentially linked.

United States v. Riley, 143 F.3d 1289, 1292 (9th Cir. 1998) (quoting

United States v. Kones, 77 F.3d 66, 70 (3d Cir. 1996)); see also

Gamma Tech Indus., 265 F.3d at 928 (“the loss cannot be too far removed from” the “conduct underlying the offense of conviction“).

Canada‘s claim for restitution is based on events that are insufficiently related to the schemes set forth in the indictment and the facts supporting Stoliar‘s guilty plea. Canada entered into contracts with City Farm, a Canadian company, pursuant to which Canada‘s Department of Natural Resources would make contribution and incentive payments to support City Farm‘s supposed production of biodiesel in Canada. After being purchased by Stoliar and his co-defendant, City Farm falsely represented to Canada that it was producing more biodiesel than it was. Canada now seeks restitution of 1,233,065.32 CAD in fraudulently-obtained subsidies.

The fraud against Canada had certain aspects in common with the scheme to which Stoliar pled guilty. Primarily, both appear to have been built upon the same central falsity: defendants’ misrepresentations regarding the quantity of biofuel that was produced by City Farm.

The schemes, however, were different. The indictment charged, and the facts supporting the guilty plea described, a scheme revolving around the false generation and use of United States biodiesel credits known as renewable identification numbers (“RINs“).⁴ It appears that the RIN fraud in the United States and the biofuel subsidy fraud in Canada proceeded on parallel tracks. But they were not causally linked. The record does not reflect that either country considered the other‘s renewable energy program in calculating its own in-

centives. The schemes were accomplished by different means, had different victims, and took place primarily in different countries. They were linked too tangentially to be part of the same “scheme, conspiracy, or pattern of criminal activity.” 18 U.S.C. § 3663A(a)(2).

The questions of whether Canada decided not to prosecute Stoliar in reliance on the prospect of restitution in this action, or whether Canada‘s ability to prosecute Stoliar was impaired by this action, were not raised by either party, and therefore are not before us.

We asked the parties to address whether petitioner, a foreign sovereign, is a “person” who may be a “crime victim” under 18 U.S.C. § 3771(e).⁵ This appears to be an open question in this circuit, but we need not reach it here in light of the disposition above.

The petition for a writ of mandamus is denied.

DENIED.

Notes

1

Both real parties in interest note petitioner‘s failure to obtain the sentencing transcript and file it in support of the CVRA petition, and Stoliar contends that the petition may be summarily denied on the ground that petitioner has failed to provide an essential part of the record. See Fed. R. App. P. 21(a)(2)(C); see also, e.g.,

Syncom Capital Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991) (per curiam). Although counsel for petitioner was remiss in not obtaining the transcript, the record and the district court‘s written order enable us to review this petition on the merits.

2

It also provides, inter alia, the procedure for this mandamus petition, 18 U.S.C. § 3771(d)(3), and defines who is a “crime victim” protected by the CVRA, 18 U.S.C. § 3771(e).

3

The MVRA further provides that “the term ‘victim’ means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant‘s criminal conduct in the course of the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663A(a)(2).

4

RINs are credits that United States importers and producers can generate when they import or generate pure biodiesel. RINs are commodities that can be bought and sold with the biodiesel, or separated from the biodiesel and bought and sold on a secondary market.

5

This subsection defines “crime victim” for the purposes of the CVRA as “a person directly and proximately harmed as a result of the commission of a Federal offense....” 18 U.S.C. § 3771(e).

Case Details

Case Name: Her Majesty the Queen in Right of Canada v. United States District Court

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 12, 2015

Citation: 785 F.3d 1273

Docket Number: 15-71346

Court Abbreviation: 9th Cir.