UNITED STATES of America, Plaintiff, TWENTY-NINE PALMS BAND OF MISSION INDIANS, Third-Party-Plaintiff-Appellant, v. Gary Edward KOVALL, Defendant-Appellee.
No. 15-50419, No. 15-50420
United States Court of Appeals, Ninth Circuit
May 30, 2017
Argued and Submitted February 10, 2017, Pasadena, California
857 F.3d 1060
Whether or not the agency would ultimately grant relief in this case is a separate question. In the end, the decision as to whether an applicant is afforded discretionary cancellation of removal is committed solely to the executive branch, not subject to our review. But legal eligibility for relief is subject to our review, and it is important for future cases of those who seek relief, and the attorneys who represent them, that the law is accurately defined. Given the government‘s new reliance on what had been considered an antediluvian phrase, resolution of its meaning is particularly critical.
Because I would resolve the petition on the basis of statutory interpretation, or remand, I would not reach the constitutional questions raised in this case.
For these reasons, I respectfully dissent.
Twenty-Nine Palms Band of Mission Indians, Third-Party-Plaintiff-Appellant, v. David Alan Heslop, Defendant-Appellee.
Edward Murray Robinson (argued), Torrance, California, for Defendant-Appellant Gary Edward Kovall.
David William Shapiro (argued), Boersch Shapiro LLP, Oakland, California, for Defendant-Appellant David Alan Heslop.
Lindsey Greer Dotson (argued), Assistant United States Attorney, Public Corruption & Civil Rights Section; Lawrence S. Middleton, Chief, Criminal Division; United States Attorney‘s Office, Los Angeles, California; for Plaintiff.
Before: SUSAN P. GRABER, JAY S. BYBEE, and MORGAN B. CHRISTEN, Circuit Judges.
OPINION
BYBEE, Circuit Judge:
We are asked whether the victim of a crime may appeal a restitution order handed down as part of a criminal defendant‘s sentence. We answered “no” when we were asked about victims’ rights for restitution ordered under the Victim and Witness Protection Act of 1982. United States v. Mindel, 80 F.3d 394, 397 (9th Cir. 1996). The victim here claims that the awarding
I
Given the highly legal nature of the question presented—and the complexity of the factual background—the facts will be recited only briefly and in relevant part. Defendants Kovall and Heslop conspired to engage in, and ultimately engaged in, a scheme to
corruptly give[], offer[], or agree[] to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.
Defendants pled guilty to conspiracy to commit federal programs bribery under
At the end of the day, the Tribe did not get all that it asked for. The district court determined the amount of restitution—broken down between the “direct loss” suffered as a result of the offenses and “other fees” incurred as collateral consequences of the offenses—and entered the sentences. Defendants appealed the restitution award,1 claiming that the district court abused its discretion in calculating the “other fees” amount.2 The Tribe also filed an appeal, challenging both the “direct loss” and the “other fees” amounts of the restitution order; we asked the parties to address whether the Tribe could do so.
II
There are three primary acts that govern restitution in criminal cases in the federal courts: the Victim and Witness Protection Act of 1982 (“VWPA“), largely codified at
A
The Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248, gives district courts the discretion to order a defendant who is convicted of a criminal offense to pay restitution, in full or in part, to the victim of that offense.
The VWPA provides that, if the criminal offense caused property loss or damage, the court may order the defendant either to return the property or to pay the value of property to the victim.
The VWPA also creates procedural rules for determining restitution and enforcing an award. For example, the probation office must provide certain notice to identified victims, including the right to submit information concerning any losses and the date, time, and place of the sentencing hearing.
B
As part of the Antiterrorism and Effective Death Penalty Act of 1996, Congress enacted the Mandatory Victims Restitution Act of 1996. Pub. L. No. 104-132, tit. II, §§ 201–11, 110 Stat. 1227, 1227–41; see
As a part of the Justice for All Act of 2004, Congress passed the Crime Victims’ Rights Act. Pub. L. No. 108-405, tit. I, § 102(a), 118 Stat. 2261, 2261–64; see
The CVRA provides mechanisms for enforcing a victim‘s rights under the Act. The government, the victim, or the victim‘s lawful representative may assert the victim‘s rights in the district court in which the defendant is being prosecuted. See
There are limitations on the relief a victim may obtain. The CVRA provides that the failure to provide a right under the Act is not grounds for a new trial.
III
The Tribe has taken a direct appeal from the district court‘s restitution awards. We held in United States v. Mindel that “the beneficiary of [a] criminal restitution order made pursuant to the VWPA[] does not have standing to pursue [an] appeal.” 80 F.3d 394, 396 (9th Cir. 1996). The Tribe argues that Mindel is limited to appeals from restitution awards issued under the VWPA and that the Tribe has standing to appeal an award under the MVRA. We conclude that the Tribe has Article III standing to appeal an award under the MVRA, but we also hold that neither the MVRA nor the Due Process Clause confers a right on the Tribe to challenge restitution awards except as provided in
A
In order to meet the “irreducible constitutional minimum of standing,” three elements must be met: (1) a party must have suffered an “injury in fact,” which is an actual or imminent invasion of a legally protected, concrete, and particularized interest, (2) “there must be a causal connection between the injury and the conduct complained of,” and (3) it must be likely that the injury will be redressable by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).
The general rule is that non-parties to a criminal prosecution have no standing to appeal the judgment. See Diamond v. Charles, 476 U.S. 54, 56 (1986) (“Because a private party whose own conduct is neither implicated nor threatened by a crimi-
A victim‘s challenge to an order of restitution stands on slightly different footing than a non-party appeal from a sentence imposed on a defendant. The victim has a more direct interest in the outcome of the case and, where the district court‘s judgment involves a monetary award of restitution to a victim, the victim has a discrete and quantifiable interest in the judgment. That the victim has such an interest, however, does not guarantee that the victim has either standing or the right to appeal the restitution order.
We first addressed third-party standing to appeal a restitution award in Mindel. In Mindel, the district court required Mindel to make restitution payments under the VWPA, and portions of Mindel‘s stock and property were held as security. See 80 F.3d at 396 (noting that the district court “expressly incorporat[ed]” a civil settlement agreement between Mindel and the victims). Mindel failed to meet his payment obligations, and the victims foreclosed on the security for the restitution. Mindel then asked the district court to modify his restitution obligations. In light of the foreclosure and Mindel‘s diminished ability to pay, the district court rescinded Mindel‘s obligation to make further payments, and the victims appealed the district court‘s order. Id. We held that the victims had not suffered an “injury in fact” and therefore lacked standing to pursue the appeal. Id. at 397; see also Kelly v. Robinson, 479 U.S. 36, 52 (1986) (“[T]he decision to impose restitution generally does not turn on the victim‘s injury, but on the penal goals of the State and the situation of the defendant.“). Looking to an Eleventh Circuit opinion, we agreed that the victims’ interest was compensatory, while the government‘s interest was penal, and a “restitution order serves a penal rather than a compensatory purpose.” Mindel, 80 F.3d at 397 (citing United States v. Johnson, 983 F.2d 216, 217-20 (11th Cir. 1993)); see also United States v. Brown, 744 F.2d 905, 910 (2d Cir. 1984) (“[T]he VWPA ... compensate[s] the victim ... in a manner distinct from the normal functioning of a civil adjudication.... [U]nlike a civil suit, the victim is not a party to a sentencing hearing and therefore has only a limited ability to influence the outcome.“).
The Tribe argues that the MVRA changed the legal landscape because the
The differences between the MVRA and the VWPA require a different result here than we reached in Mindel. There are two differences, albeit related, that lead us to conclude that victims entitled to restitution under the MVRA have suffered injury in fact when full restitution is not ordered. The first, and most obvious, is that awarding restitution under the MVRA is mandatory, not discretionary.
We recognize that two circuits have concluded that putative victims of crime do not have standing to appeal a restitution order under the MVRA. See United States v. Stoerr, 695 F.3d 271, 275-78 (3d Cir. 2012); United States v. United Sec. Sav. Bank, 394 F.3d 564, 567 (8th Cir. 2004) (per curiam) (citing, inter alia, United States v. Mindel). For reasons we explain in the next Section, we agree with those courts that victims cannot appeal from a restitution award, but we respectfully disagree that it is because the victims lack Article III standing.5
B
The fact that a would-be litigant has Article III standing does not guarantee the right to take an appeal. See Devlin v. Scardelletti, 536 U.S. 1, 6-7 (2002) (holding that an unnamed class member satisfied standing where the question was “whether petitioner should be considered a ‘party’ for the purposes of appealing the approval of the settlement“). In the federal system, there is no general right to an appeal. See Carroll v. United States, 354 U.S. 394, 399 (1957) (“It is axiomatic, as a matter of history as well as doctrine, that the existence of appellate jurisdiction in a specific federal court over a given type of case is dependent upon authority expressly conferred by statute.“). This is true even in criminal cases. See Cobbledick v. United States, 309 U.S. 323, 325 (1940) (“Not until 1889 was there review as of right in criminal cases.“); United States v. Sanges, 144 U.S. 310, 319 (1892) (“For a long time after the adoption of the Constitution, ... [it was] settled that criminal cases could not be brought from a Circuit Court of the United States to this court by writ of error, but only by certificate of division of opinion upon specific questions of law.“). The power to create “appellate Jurisdiction” in the federal courts is limited to “such Regulations as the Congress shall make.”
In civil litigation, the “well settled” general rule is that “only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.” Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam); see Karcher v. May, 484 U.S. 72, 77 (1987) (“[W]e have consistently applied the general rule that one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom.“). This “general rule” is reflected in the Federal Rules of Appellate Procedure, which similarly provide that only parties to the underlying litigation may appeal the judgment. See
A similar rule applies in criminal proceedings. Not until the Act of 1889 did Congress grant defendants the right to appeal their conviction after a final judgment. See
Nothing in the MVRA alters these rules. The MVRA does not confer on victims the right to appeal from a district court‘s restitution order. The Tribe offers no provision of the MVRA as evidence that Congress granted victims the right to appeal. In light of the longstanding rule that appellate jurisdiction is determined by statute, this is fatal to the Tribe‘s case for a right to appeal. The Third Circuit has aptly explained:
[T]he MVRA gives no indication that it disturbs the default rule that only the Government and the defendant can appeal a defendant‘s sentence. Instead, as the Government explains,
§ 3664(o)(1)(B) notes that a restitution order can be “appealed and modified” pursuant to18 U.S.C. § 3742 . Section 3742 permits appeals by the defendant and by the Government, but does not purport to allow appeals by non-parties.
Stoerr, 695 F.3d at 278. This conclusion finds further support in a provision of the CVRA: “In any appeal in a criminal case, the Government may assert as error the district court‘s denial of any crime victim‘s right in the proceeding to which the appeal relates.”
The Tribe argues that Congress granted victims an implied right to appeal, as evidenced by the various provisions of the MVRA that permit victims to participate in the proceedings and require the district court to award restitution to victims.
Finally, we reject the Tribe‘s claim to a right to appeal for another reason: although Congress has not granted victims a right to appeal a restitution order, it has provided victims with a more limited statutory remedy. The CVRA confers on victims a discrete set of nine rights. We have previously described these, see supra Section II.C, but they are largely rights to notice of and participation in any court proceedings. See
C
The Tribe makes an alternative argument that because the MVRA gives victims a statutory right to restitution, it cannot be deprived of that right without a remedy, including a right to appeal. Citing the Sixth Circuit‘s opinion in United States v. Perry,
The Sixth Circuit held that the intervenor had standing under the MVRA. Id. at 524. The MVRA gives a victim the right, after restitution has been ordered, to require a district court to issue a lien against the defendant‘s property. See
But Perry has little to do with a nonparty victim‘s ability to appeal a restitution order. The crux of the Sixth Circuit‘s logic relies on the fact that it was dealing with a post-restitution-order lien and that a lien is a property interest in state law and within the meaning of the Fifth and Fourteenth Amendments. See id. The Third, Eighth, Eleventh, and D.C. Circuits all recognized (or strongly hinted) that Perry is limited to its procedural posture: where a district court takes away a judgment lien in satisfaction of an existing restitution order.9 See Stoerr, 695 F.3d at 279-80 (rejecting Perry because a right to restitution is not a right created by state law, thus not a cognizable property interest); Alcatel-Lucent, 688 F.3d at 1306-07 (noting that Perry does not stand for the proposition that a victim may appeal a actual restitution award); United States v. Monzel, 641 F.3d 528, 543 & n.15 (D.C. Cir. 2011) (“[T]he victim in Perry was not appealing an order awarding restitution....“); United Sec. Sav. Bank, 394 F.3d at 567 (rejecting Perry while noting that it applied only to the release of a judgment lien). Indeed, Perry did not extend its ruling to cover a run-of-the-mill right to restitution under the MVRA. See Perry, 360 F.3d at 530-31 (contrasting itself with cases that “involved the appeal of an order rescinding or modifying a restitution order“).
These procedures do not violate the Fifth Amendment‘s Due Process Clause. To determine the constitutional sufficiency of procedure under the Due Process Clause, the Court has enunciated a balancing test involving three factors: (1) the private interest that will be affected; (2) the risk of an erroneous deprivation through the procedures used, and the probable value of additional or substitute procedural safeguards; and (3) the government‘s interest in not applying additional procedural safeguards. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Mathews‘s first factor looks to the “private interest,” and while the private interest in restitution is not insignificant, it is nonetheless slight. Restitution is only partly compensatory, as its historical roots grow from entirely punitive purposes. See Mindel, 80 F.3d at 397. Indeed, restitution is an alternative to seeking a judgment in civil courts via regular civil proceedings. See
The second Mathews factor fares only slightly better than the first. The risk of erroneous deprivation is minimal given the aforementioned substantial process afforded to victims. A victim can first make her case to the district court and, if she thinks that the district court erred, she can ask the district court to reconsider. If the district court still thinks that it got it right, then her recourse is a writ of mandamus or asking the government to appeal directly. And so even if the writ of mandamus standard that we are to apply looks for only “clear error,” see Stanley v. Chappell, 764 F.3d 990, 996 (9th Cir. 2014),10 the likelihood that this process will result in a restitution order that is wrong, but not clearly wrong, is slight. There may be some value added by permitting an appeal, but the right to due process has never been understood to require the right to an appeal. In any event, Congress has already built a number of safeguards for victims seeking restitution.
Considering the three factors together, we conclude that, as a matter of due process, the statutory scheme fully protects victims, and we hold that non-party victims may not directly appeal a criminal defendant‘s restitution award. Congress may, of course, judge the situation differently and decide in the future to give victims additional rights.
UNITED STATES of America, Plaintiff-Appellee, v. Alexander J. PAULER, Defendant-Appellant.
No. 16-3070
United States Court of Appeals, Tenth Circuit.
Filed May 23, 2017
IV
Because nothing in the MVRA authorizes victims to appeal a restitution order, and the Due Process Clause does not require it, we hold that the Tribe cannot directly appeal the restitution order.
The Tribe‘s appeal is DISMISSED.