and Submitted February 10, 2017 Pasadena, California
from the United States District Court Nos.
2:12-cr-00441-MWF-1, 2:12-cr-00441-MWF-2 for the Central
District of California Michael W. Fitzgerald, District Judge,
Richard Freeman (argued) and Evan C. Mix, Sheppard Mullin
Richter & Hampton LLP, San Diego, California, for
Murray Robinson (argued), Torrance, California, for
Defendant-Appellant Gary Edward Kovall.
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
Before: Susan P. Graber, Jay S. Bybee, and Morgan B.
Christen, Circuit Judges.
panel dismissed appeals by third-party plaintiff Twenty-Nine
Palms Band of Mission Indians ("the Tribe") from
restitution orders handed down as part of the sentences
imposed on two criminal defendants.
panel held that the Tribe has Article III standing to appeal
an award under the Mandatory Victims Restitution Act, but
that a victim may not directly appeal such an award. The
panel held that neither the MVRA nor the Due Process Clause
confers a right on a victim to challenge restitution awards
except as provided in 18 U.S.C. § 3771(d)(3).
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 of restitution under the
Mandatory Victims Restitution Act of 1996 presents a
different situation, warranting a different rule. We
disagree, and join the First, Third, Fifth, Eighth, and Tenth
Circuits in holding that a victim may not directly appeal the
restitution component of a criminal defendant's sentence
under the Mandatory Victims Restitution Act. See United
States v. Slovacek, 699 F.3d 423, 425-27 (5th Cir.
2012); United States v. Stoerr, 695 F.3d 271, 273
(3d Cir. 2012); United States v.
Aguirre-González, 597 F.3d 46, 54-55 (1st Cir.
2010); United States v. Hunter, 548 F.3d 1308, 1316
(10th Cir. 2008); United States v. United Sec. Sav.
Bank, 394 F.3d 564, 567 (8th Cir. 2004) (per curiam).
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.
18 U.S.C. § 666(a)(2). In essence, Defendants schemed to
use Kovall's position of influence with the Twenty-Nine
Palms Band of Mission Indians ("the Tribe") to
convince the Tribe to enter into contracts with
Defendants' co-conspirators at inflated prices.
Defendants would then receive kickbacks based on the
pled guilty to conspiracy to commit federal programs bribery
under 18 U.S.C. § 371. Pursuant to the Mandatory Victims
Restitution Act, see id. § 3663A, the district
court ordered Defendants to pay restitution to the Tribe. To
determine the proper amount of restitution, the district
court held hearings where it heard from the Tribe,
Defendants, and the government. See id. §
3771(a)(4) (giving victims a right to be heard when entitled
to restitution). The Tribe presented evidence of its losses;
the government and Defendants responded.
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,  claiming that the district court abused
its discretion in calculating the "other fees"
amount. 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.
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 18 U.S.C. §§ 3663, 3664; the Mandatory Victims
Restitution Act of 1996 ("MVRA"), largely codified
at 18 U.S.C. § 3663A; and the Crime Victims' Rights
Act ("CVRA"), largely codified at 18 U.S.C. §
3771. We address each act in turn to describe
how the current restitution scheme works.
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. 18 U.S.C. § 3663(a)(1)(A)-(B). In determining
whether to order restitution, the court must consider the
amount of loss suffered by the victim, the financial
resources and needs of the defendant, and other factors that
the court deems appropriate. Id. §
3663(a)(1)(B)(i); see also id. ...