U.S. v. Aguirre-González

• Decision Date: 02 March 2010
• Docket Number: No. 08-1276.,08-1276.
• Parties: UNITED STATES of America, Appellee, v. Alvin F. AGUIRRE-GONZÁLEZ, Defendant, Appellee, Richard J. Schmeelk; William B. Finneran; and Jira Associates, LP, Movants, Appellants, Wells Capital Management, Inc., Provisional Intervenor.
• Court: U.S. Court of Appeals — First Circuit

597 F.3d 46

UNITED STATES of America, Appellee, v. Alvin F. AGUIRRE-GONZÁLEZ, Defendant, Appellee, Richard J. Schmeelk; William B. Finneran; and Jira Associates, LP, Movants, Appellants, Wells Capital Management, Inc., Provisional Intervenor.

No. 08-1276.

United States Court of Appeals, First Circuit.

Heard November 4, 2009.

Decided March 2, 2010.

Ina M. Berlingeri-Vicenty, with whom Greenberg Traurig, P.A., was on brief for appellants Schmeelk, Finneran, and Jira Associates.

Michael A. Rotker, Attorney, U.S. Department of Justice, Criminal Division, Appellate Section, with whom Rosa E. Rodríguez-Vélez, United States Attorney, District of Puerto Rico, were on brief for appellee.

Daniel J. Vaccaro, with whom Aaron H. Kastens, and Michael Best & Friedrich LLP, were on brief for the provisional intervenor.

Before TORRUELLA, Circuit Judge, BALDOCK,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

TORRUELLA, Circuit Judge.

Richard J. Schmeelk, William B. Finneran, and JIRA Associates, LP were victims of a fraudulent investment scheme run by Defendant Alvin F. Aguirre-González ("Aguirre").¹ They brought this appeal after the district court denied their motion for an order of restitution at Aguirre's sentencing.

The government concedes that, under the applicable federal restitution statutes, the district court "indisputably erred" when it concluded that the appellants were not "victims" of Aguirre's fraud entitled to restitution.² Nonetheless, the government asserts that appellants cannot challenge the district court's restitution order because they were not parties to the criminal proceedings below. Rather, the government contends, the exclusive remedy for crime victims seeking to challenge a district court's order of restitution in criminal proceedings is to petition for a writ of mandamus under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771(d)(3), which provides victims with a right to expedited, 72-hour appellate review. The government further contends that, by failing to bring a timely mandamus petition, appellants are no longer capable of seeking relief under the CVRA.

We asked the parties to brief a series of questions pertaining to the right of crime victims to seek appellate review of restitution orders imposed as part of a defendant's criminal sentence. After careful consideration, we hold as follows. First, a petition for a writ of mandamus under the CVRA is the exclusive mechanism for appellate review of sentencing orders affecting crime victims' rights. Next, the 72-hour time limit for mandamus review imposed by the CVRA is precatory, not mandatory, such that appellate courts retain authority, in appropriate circumstances, to consider petitions after the expiration of that deadline. Nonetheless, in this case, we do not exercise our discretion to convert appellant's direct appeal into a mandamus petition, as consideration of the petition on the merits at this late date would be fruitless in light of the CVRA's express concern for finality in criminal sentencing orders. Accordingly, we have no need to address what standard of review applies to timely mandamus petitions under the CVRA.

I. Background

A. The Criminal Proceedings³

From approximately 1994 through 2003, Aguirre was president and chief executive officer of two businesses incorporated under the laws of Puerto Rico which purchased vehicles and equipment and then leased them to various public and private entities. Acting through his corporations, Aguirre would sell or assign rights to periodic payments under the leases to various third-party investors. By August 1997, Aguirre began to sell or assign rights to fraudulent leases and pocket investors' money. He forged signatures, created false invoices, and made various misrepresentations to investors and potential investors in the course of this scheme.

In 2001 and 2002, appellants were among the investors Aguirre deceived. Together, they purchased rights to payments under several lease agreements, including, as is relevant here, leases with the Municipality of Bayamón and with the Puerto Rico Office of Courts Administration (OAT). Both leases were, in various aspects, fraudulent, and appellants now claim losses of more than $2.7 million as a result.⁴

On November 9, 2005 Aguirre was charged in a 31-count indictment with wire fraud, mail fraud, and criminal forfeiture. All of the counts were alleged to be part and parcel of the "scheme and artifice to defraud" third-party investors we have just described. The indictment alleged total losses for all victims of approximately $30 million. Counts 28 and 29 pertained to leases purchased by appellants, and specifically named Finneran and Jira Associates.

Aguirre's Rule 11 hearing was held on January 23, 2007. Under the terms of a written plea and forfeiture agreement with the government, Aguirre agreed, among other things, to plead guilty to counts 1 through 18 (wire fraud) and count 31 (civil forfeiture); to forfeit $1,500,000 to the government; and to pay $3,321,382 in restitution. In exchange, the government agreed to recommend the dismissal of the remaining counts at sentencing, including counts 28 and 29. The district court accepted Aguirre's guilty plea.

Thereafter, appellants submitted victim impact statements; moved for restitution under the Victim Witness Protection Act (VWPA) and the Mandatory Victims Restitution Act (MVRA); submitted declarations in support of their claims; and argued the merits at Aguirre's sentencing hearing held on January 17, 2003. The district court denied the motion for restitution, reasoning that appellants were "victims" of the counts as to which Aguirre had not pled guilty and, therefore, had no criminal liability. The court ultimately awarded approximately $4.8 million to other defrauded investors⁵ and $1.5 million to the government on the civil forfeiture count. Aguirre was sentenced to 57 months in prison, the upper end of the Guidelines' recommended range. At the end of the hearing, the court dismissed counts 19 through 30 of the indictment. Final judgment was entered on January 25, 2008 and, four days later, appellants filed a notice of appeal as to the denial of their motion for restitution.⁶

The government now concedes that, under the definition of "victim" used in the VWPA and MVRA, appellants were entitled to restitution notwithstanding the dismissal of counts 28 and 29. Further, they acknowledge that, under the MVRA, the district court had no discretion to deny appellants restitution. See 18 U.S.C. § 366A (district court "shall order" defendants convicted of certain offenses, including fraud resulting in pecuniary loss, to pay restitution to identifiable "victims"). Nonetheless, as we discuss, the government contends that appellants may no longer claim their right to restitution due to procedural defects in their challenge.

B. Crime Victims and the Federal Restitution Statutes

Before turning to the issues specific to this appeal, we provide a brief sketch of the network of federal statutes affecting crime victims' rights to restitution.

1. The Victim Witness Protection Act

The VWPA authorizes a district court in criminal sentencing proceedings to "order `in addition to or . . . in lieu of any other penalty authorized by law, that the defendant make restitution to any victim' of the offense." United States v. Acosta, 303 F.3d 78, 86 (1st Cir.2002)(quoting 18 U.S.C. § 3663(a)). The purpose of the statute is to "insure that the wrongdoer make good[], to the degree possible, the harm he has caused his victim." United States v. Vaknin, 112 F.3d 579, 582 (1st Cir.1997)(quoting S.Rep. No. 97-532, at 31 (1982), reprinted in 1982 U.S.C.C.A.N. 2515, 2536). When the VWPA was enacted in 1982, it represented a "tectonic" shift in the criminal restitution regime, transforming "criminal restitution from a sporadically imposed condition of probation into the sentencing norm in cases involving quantifiable economic loss." Id. (explaining that "federal judges were not able to impose criminal restitution as a condition of probation until 1925 when Congress passed the Federal Probation Act" and, even after that, "used the power sparingly").

In its earlier forms, the VWPA did not define who was a "victim" eligible for restitution. In 1990 the Supreme Court filled that gap, construing the statute "to authorize an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction," and not counts which were dismissed. Hughey v. United States, 495 U.S. 411, 413, 421, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990)(recognizing that "[t]he essence of a plea agreement is that both the prosecution and the defense make concessions to avoid potential losses"). Congress responded in short order, amending the VWPA to provide that "[f]or purposes of restitution, a victim of an offense that involves as an element a scheme, a conspiracy, or pattern of criminal activity means any person directly harmed by the defendant's conduct in the course of the scheme, conspiracy or pattern." Crime Control Act of 1990, Pub.L. No. 101-647, 104 Stat. 4789 (codified at 18 U.S.C. § 3663(a)(2)). In such cases, like this one, the district court may now "order restitution without regard to whether the conduct that harmed the victim was conduct underlying the offense of conviction." Acosta, 303 F.3d at 86-87.

In 1996 Congress amended the VWPA again, retaining the specific definition of "victim" for crimes involving a "scheme, conspiracy, or pattern of activity" and adding more generally 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." Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996)(codified at 18 U.S.C. § 3663(a)(2)).

2. The Mandatory Victim Restitution Act

Also in 1996, Congress enacted the MVRA, which "compels a sentencing co...