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United States v. Kovall

United States Court of Appeals, Ninth Circuit

May 30, 2017

United States of America, Plaintiff,
v.
Gary Edward Kovall, Defendant-Appellee. Twenty-Nine Palms Band of Mission Indians, Third-Party-Plaintiff-Appellant, United States of America, Plaintiff, Twenty-Nine Palms Band of Mission Indians, Third-Party-Plaintiff-Appellant,
v.
David Alan Heslop, Defendant-Appellee.

          Argued and Submitted February 10, 2017 Pasadena, California

         Appeals 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, Presiding

          Richard Freeman (argued) and Evan C. Mix, Sheppard Mullin Richter & Hampton LLP, San Diego, California, for Third-Party-Plaintiff-Appellant.

          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.

         SUMMARY[*]

         Criminal Law

         The 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.

         The 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).

          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 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).

         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.

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 Tribe's overpayments.

         Defendants 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.

         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 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.[3] We address each act in turn to describe how the current restitution scheme works.

         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. 18 U.S.C. § 3663(a)(1)(A)-(B).[4] 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. ...


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