U.S. v. Perry

• Decision Date: 10 March 2004
• Docket Number: No. 01-4265.,01-4265.
• Citation: 360 F.3d 519
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony P. PERRY, Defendant-Appellee, v. Tryllous Hossler, Intervenor-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

360 F.3d 519

UNITED STATES of America, Plaintiff-Appellee, v. Anthony P. PERRY, Defendant-Appellee, v. Tryllous Hossler, Intervenor-Appellant.

No. 01-4265.

United States Court of Appeals, Sixth Circuit.

Argued: April 30, 2003.

Decided and Filed: March 10, 2004. Pursuant to Sixth Circuit Rule 206.

COPYRIGHT MATERIAL OMITTED

ARGUED: Karen Kelly Grasso, THOMPSON HINE, Cleveland, Ohio, for Appellant.

Christian H. Stickan (argued and briefed), Assistant United States Attorney, Cleveland, Ohio, Frank J. Witschey, Witschey & Witschey, Akron, Ohio, for Plaintiff-Appellee.

ON BRIEF: Karen Kelly Grasso, Robert M. Gippin, Thompson Hine, Cleveland, Ohio, for Appellant.

Christian H. Stickan, Assistant United States Attorney, Cleveland, Ohio, Frank J. Witschey, Witschey & Witschey, Akron, Ohio, for Appellees.

Frank M. Pignatelli, Emershaw, Mushkat & Schneier, Akron, OH, Frank J. Witschey (argued and briefed), Witschey & Witschey, Akron, Ohio, for Defendant-Appellee.

Robert M. Gippin (briefed), Karen Kelly Grasso (argued and briefed), Thompson Hine, Cleveland, Ohio, for Intervenor-Appellant.

Before: CLAY and GIBBONS, Circuit Judges; DUGGAN, District Judge.^*

CLAY, J., delivered the opinion of the court, in which DUGGAN, D.J., joined. GIBBONS, J. (pp. 539-44), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Intervenor Tryllous Hossler appeals a November 5, 2001 order vacating a judgment lien, entered by the United States District Court for the Northern District of Ohio, after Intervenor filed a judgment lien pursuant to 18 U.S.C. § 3664(m)(1)(B) of the Mandatory Victims Restitution Act ("MVRA"), against an Ohio property belonging to Defendant Anthony Perry. This transaction occurred after Perry pleaded guilty to various counts related to a securities fraud scheme and the court ordered restitution to his victims, including Intervenor.

For the reasons set forth below, we VACATE the order releasing Intervenor's judgment lien.

FACTS AND PROCEDURAL HISTORY

On January 25, 2001, Defendant Anthony Perry pleaded guilty to three counts related to securities fraud. The court sentenced Perry to a two-year prison sentence and ordered Perry to make restitution in the amount of $715,078.40 to his victims. Intervenor, a ninety-one year -old woman, is one of Perry's victims. The restitution order required Perry to reimburse her $92,000. The district court, however, ordered Perry to make all payments to the clerk's office so that the clerk could "forward the money to victims pro rata until the full amount is paid."

David Bettiker, Donna Bettiker, James A Bruggeman, Henry Bruno, Mary Bruno, Wilma R. Cottrell, Lloyd P. Greenlese, Dorothy A. Nicolard, Donald L. Nicolard, Thomas W. Ozbolt, Julia A. Ozbolt, Robert Serpentini, Amelia Serpentini, Jayne L. Simo, Arnold W. Stanley, Carl Weisenbach, Eleanor M. Weisenbach, and Russell E. Workman (collectively, the "Perry Investors") are also victims included in the restitution order. The Perry Investors appear before us as Appellees.

The restitution order did not specify an order of priority among the victims. Pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3664(m)(1)(B), Intervenor obtained a judgment lien on Perry's Wadsworth, Ohio, real property. She recorded the lien in Medina County, Ohio, on August 7, 2001.

In September of 2001, Perry entered into a land contract and asset purchase agreement with Dawn and Boyd Ferrebee, prospective buyers of the Wadsworth property. Perry owns a corporation as well, and Perry also planned to sell the business' assets to the Ferrebees as well in an asset purchase agreement that would close with the closing of the land contract. The closing of the asset purchase agreement was contingent on the purchase of the land contract. If the land contract failed to close, the asset purchase agreement would fail to close as well.¹

Perry's civil attorney then moved to release Intervenor's lien on behalf of the other victims.² In findings and orders dated October 25, 2001, and November 5, 2001, the district court granted the motion and vacated the lien. Intervenor filed her notice of appeal on November 28, 2001.

After the district court vacated the lien, the land contract and asset purchase agreement closed. Perry turned the $45,000 he received over to the district court, which disbursed the money proportionately to all investors, including Intervenor.

On December 28, 2001, the government moved to dismiss the appeal for want of jurisdiction, arguing that Intervenor lacked standing to appeal the district court's order and that Intervenor's appeal was untimely. Intervenor opposed the motion. On February 4, 2002, we ordered the parties to address both the standing and timeliness issues in their briefs.

DISCUSSION

Before reaching the merits, we must consider whether (1) we lack jurisdiction because of Intervenor's allegedly untimely filing; or (2) Intervenor lacks standing to prosecute this appeal.

I.

We independently ascertain our own jurisdiction. United States v. True, 250 F.3d 410, 418 (6th Cir.2001). A timely notice of appeal "is both a mandatory and a jurisdictional prerequisite." United States v. Christunas, 126 F.3d 765, 767 (6th Cir.1997).

Intervenor filed her notice of appeal twenty-three days after the district court vacated her lien. Appellees make a halfhearted attempt to argue that Intervenor filed her notice of appeal late. Fed. R.App.P. 4(a) provides:

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district court within 30 days after the judgment or order appealed from is entered.

(B) When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.

Fed.R.App. P. 4(a) covers civil proceedings. In contrast, Fed. R.App. P. 4(b) provides less time for criminal appeals:

(1) Time for Filing a Notice of Appeal:

(A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of:

(i) the entry of either the judgment or the order being appealed; or

(ii) the filing of the government's notice of appeal.

Appellees claim that Intervenor's appeal falls under Fed. R.App. P. 4(b), which would make her notice of appeal thirteen days late.

This is not an ordinary appeal from a criminal judgment because it involves a civil matter initiated by a third party. Fed. R.App. P. 4(b)(1)(A) states that "[i]n a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days." (emphasis added). Intervenor was not the defendant below, and Fed. R.App. P. (4)(b) makes no provision for other parties.³

In this and other circuits, 4(a) governs civil-type appeals in criminal cases. See, e.g., United States v. Hayman, 342 U.S. 205, 209 n. 4, 72 S.Ct. 263, 96 L.Ed. 232 (1952) (noting motions to set aside or correct criminal sentences are civil actions for purposes of Fed. R.App. P. 4); United States v. Wade, 255 F.3d 833, 839 (D.C.Cir. 2001) (holding petition for attorney fees filed by intervenors in federal criminal abatement proceeding was a "civil case," rather than a "criminal case," for purpose of determining time limits for taking appeal) (citing In re 1997 Grand Jury, 215 F.3d 430, 433-36 (4th Cir.2000)); Palma v. United States, 228 F.3d 323, 325 (3rd Cir. 2000) (finding timely government appeal after fifty-six days of the lower court's decision, in a criminal proceeding, to restore defendant's firearms privileges); United States v. Truesdale, 211 F.3d 898, 904 (5th Cir.2000) (holding action to recover attorneys fees arising out of a criminal matter is not part of the underlying criminal case, making Fed. R.App. P. 4(b) applicable); United States v. Means, 133 F.3d 444, 450 (6th Cir.1998) (finding defendant had sixty days to appeal the denial of his motion to consolidate his original criminal proceedings with his motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255); United States v. Taylor, 975 F.2d 402, 403 (7th Cir.1992) ("[M]any appealable orders technically `in' criminal cases look more civil than criminal — from the return of bond money to motions under 28 U.S.C. § 2255 that parallel the civil petition for a writ of habeas corpus."); United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987) (treating motions for return of property pursuant to Federal Rule of Criminal Procedure 41(e) as civil equitable proceedings even though brought under the rules of criminal procedure). Thus, although the judgment lien is related to a criminal proceeding, 4(a) applies to Intervenor's appeal because a dispute over a lien is more appropriately classified as "civil-type" litigation.

II.

We next consider Intervenor's standing. We find that she has standing under both the the MVRA and Article III.

A.

The Victim and Witness Protection Act ("VWPA"), as amended in 1996 by the Mandatory Victims Restitution Act, provides a framework enabling victims of certain crimes to receive compensation from the perpetrators. See 18 U.S.C. §§ 3363-64. The VWPA, as modified by the MVRA, allows victims named in restitution orders to obtain and register a judgment lien on the defendant's property that then operates as a lien on the property under state law. Id. at §§ 3664(m)(1)(B), (d)(2)(A)(v). The law does not provide any limits on the victim's ability to obtain a judgment lien and it provides no express means by which a district court can alter a victim's lien rights post hoc.

1.

The new law unquestionably reflects a dramatically more "pro-victim" congressional attitude; unlike its predecessor, restitution is mandatory rather than discretionary for defendants convicted of certain offenses. See 18 U.S.C. §§ 3663A(a)(1) ("Notwithstanding any other provision of law, when sentencing a defendant...