U.S. v. United Sec. Sav. Bank, 04-1452.

• Decision Date: 15 December 2004
• Docket Number: No. 04-1452.,04-1452.
• Citation: 394 F.3d 564
• Parties: UNITED STATES of America, Appellee, v. UNITED SECURITY SAVINGS BANK, Appellant. Anthony Curtis Flowers, Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

394 F.3d 564

UNITED STATES of America, Appellee, v. UNITED SECURITY SAVINGS BANK, Appellant.

Anthony Curtis Flowers, Defendant.

No. 04-1452.

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2004.

Filed: December 15, 2004.

Counsel who presented argument on behalf of the appellant was Jonathan B. Hammond of Cedar Rapids, IA.

Counsel who presented argument on behalf of the appellee was Sean R. Berry, AUSA, of Cedar Rapids, IA.

Before MURPHY, HEANEY, and BEAM, Circuit Judges.

PER CURIAM.

Anthony Curtis Flowers stole a total of $126,342 from nine banks in ten robberies between August 22, 2000, and May 22, 2001. The police recovered $37,849 from Flowers. United Security Savings Bank (United Security) appeals the district court's¹ decision to return the funds seized pro rata to the victim banks. United Security contends that the district court erred in its restitution order and that it was entitled to full compensation of its losses before any funds were returned to the other banks. We affirm.

On August 22, 2000, Flowers robbed the First National Bank in Sioux City, Iowa of $15,210. Officers recovered a total of $2,304 from Flowers's sister the following day. On September 8, 2000, Flowers stole $5,782 from the Commercial Federal Bank in Omaha, Nebraska. On September 18, 2000, he robbed United Security of $12,415. On September 23, 2000, Flowers was arrested with $4,290 in his possession.

In May of 2001, following his escape from jail, Flowers robbed the Commercial Federal Bank of another $17,025; the Rock Island Arsenal Federal Credit Union of $20,874; United Security of an additional $10,050; Firstar Bank in Des Moines, Iowa, of $9,459; Firstar Bank in Eau Claire, Wisconsin, of $9,910; State Capital Credit Union in Madison, Wisconsin, of $11,984; and West Gate Bank, in Lincoln, Nebraska, of $13,633.

Police officers arrested Flowers on June 1, 2001 and recovered $31,255.66 at that time. One of the bills recovered was a marked bill from the West Gate Bank. Flowers pleaded guilty to one charge of bank robbery of United Security, use of a firearm during a crime of violence, and being a felon in possession of a firearm. On the basis of his guilty plea, Flowers was ordered to pay restitution of $15,210 to First National Bank and $22,640 to United Security. United Security also sued Flowers in the Iowa District Court for Linn County and on September 10, 2003, obtained a default judgment for $26,807.66, plus costs.

United Security motioned for possession of the $37,849² seized by the FBI on three grounds: first, the bank had a lien against the funds from the Iowa district court; second, the bank was entitled to restitution from Flowers; and third, the bank was entitled to the money under Federal Rule of Criminal Procedure 41(g).³ The district court rejected all three arguments. It found that the $37,849 was stolen property to be returned to all the banks, and could not be subject to a lien or garnishment by a single bank. Further, it reasoned that because the banks could not show the specific source of the money seized, the money should be distributed pro rata to all of the banks that Flowers had robbed.

United Security first appeals the district court's restitution order under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, claiming that the court erred in not ordering Flowers to pay interest, and in ordering Flowers to pay restitution to First National Bank before paying United Security. We conclude that United Security does not have standing to challenge the district court's restitution order.

A party invoking the jurisdiction of the federal courts must meet the constitutional requirements of Article III and the prudential limitations crafted by the courts. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To meet the requirement of constitutional standing, the plaintiff must show that it has suffered an "injury in fact" that is: concrete and particularized and actual or imminent; fairly traceable to the challenged action of the defendant; and likely to be redressed by a favorable decision. Id. at 560-61, 112 S.Ct. 2130.

A criminal restitution order is penal, not compensatory. Kelly v. Robinson, 479 U.S. 36, 52-53, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). "The direct, distinct, and palpable injury in a criminal sentencing proceeding plainly falls only on the defendant who is being sentenced." United States v. Grundhoefer, 916 F.2d 788, 791 (2d Cir.1990). Thus, a private citizen generally lacks standing "to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). A crime victim does not have standing to appeal a district court's restitution order. United States v. Mindel, 80 F.3d 394, 397-98 (9th Cir.1996); United States v. Johnson, 983 F.2d 216, 217 (11th Cir.1993); but see United States v. Perry, 360 F.3d 519, 530-33 (6th Cir.2004) (holding that a crime victim had standing to challenge the district court's release of a judgment lien obtained against the defendant).

United Security has not shown that it suffered any injury as a result of the district court's restitution order. In fact, the bank has already secured a civil judgment for its losses, which is unaltered by the restitution order. We conclude that United Security does not have standing to challenge the district court's restitution order.

Moreover, we would affirm the district court even if United Security could challenge...