United States v. Kovall

• Decision Date: 30 May 2017
• Docket Number: No. 15-50420,No. 15-50419,15-50419
• Parties: UNITED STATES of America, Plaintiff, Twenty-Nine Palms Band of Mission Indians, Third-Party-Plaintiff-Appellant, v. Gary Edward KOVALL, Defendant-Appellee. United States of America, Plaintiff, Twenty-Nine Palms Band of Mission Indians, Third-Party-Plaintiff-Appellant, v. David Alan Heslop, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

857 F.3d 1060

UNITED STATES of America, Plaintiff,

Twenty-Nine Palms Band of Mission Indians, Third-Party-Plaintiff-Appellant,

v.Gary Edward KOVALL, Defendant-Appellee.

United States of America, Plaintiff,

Twenty-Nine Palms Band of Mission Indians, Third-Party-Plaintiff-Appellant,

v.David Alan Heslop, Defendant-Appellee.

No. 15-50419

No. 15-50420

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 10, 2017, Pasadena, California

Filed May 30, 2017

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.

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. § 3663(a)(1)(B)(ii) (allowing a district court to decline to order restitution if doing so would complicate or prolong the sentencing process).

The VWPA provides that, if the criminal offense caused property loss or damage, the court may order the defendant either to return the property or to pay the value of property to the victim. Id. § 3663(b)(1). If the victim suffered bodily injury, the court may order the defendant to pay for the cost of medical and other professional treatment, physical and occupational therapy and rehabilitation, and lost income; if the offense resulted in loss of life, the defendant may be ordered to pay for funeral and related services; in any case, the defendant may also have to pay for lost income and child care, make restitution in services in lieu of money, and pay for time spent by the victim "in an attempt to remediate the intended or actual harm." Id. § 3663(b)(2)–(6).

The VWPA also creates procedural rules for determining restitution and enforcing an award. For example, the probation office must provide certain notice to identified victims, including the right to submit information concerning any losses and the date, time, and place of the sentencing hearing. Id. § 3664(d)(2)(A)(iii), (iv). In determining the proper amount of restitution, the government bears the burden of proving the amount of loss and must do so by a preponderance of the evidence; the defendant, however, has the burden of demonstrating financial ability and the needs of any dependents. Id. § 3664(e).

B

As part of the Antiterrorism and Effective Death Penalty Act of 1996, Congress enacted the Mandatory Victims Restitution Act of 1996. Pub. L. No. 104-132, tit. II, §§ 201–11, 110 Stat. 1227, 1227–41; see 18 U.S.C. § 3663A. Most notably, for certain crimes—crimes of violence, offenses against property, and any offense committed by fraud or deceit, among others—the district court has no discretion under the MVRA and "shall order" restitution. 18 U.S.C. § 3663A(a)(1), (c)(1)(A). The rights to restitution conferred by the MVRA are generally enforceable under the procedures in the VWPA. See id. § 3663A(d). As noted above, the MVRA also amended the VWPA to make some additions to the general rules and procedures for awarding restitution. See supra note 4.

C

As a part of the Justice for All Act of 2004, Congress passed the Crime Victims' Rights Act. Pub. L. No. 108-405, tit. I, § 102(a), 118 Stat. 2261, 2261–64; see 18 U.S.C. § 3771. The CVRA expands the rights afforded to victims of crime. Those rights now include the right to be reasonably protected from the accused, the right to timely notice of proceedings, the right to be heard at public proceedings, the right to be informed of a plea bargain, and the right "to full and timely restitution as provided in law." 18 U.S.C. § 3771(a). The government is obligated to use its "best efforts" to advise crime victims of these enumerated rights. Id. § 3771(c)(1).

The CVRA provides mechanisms for enforcing a victim's rights under the Act. The government, the victim, or the victim's lawful representative may assert the victim's rights in the district court in which the defendant is being prosecuted. See id. § 3771(d)(1), (3). The district court must decide a motion asserting a victim's rights "forthwith." Id. § 3771(d)(3). And if the district court denies the relief sought, "the movant may petition the court of appeals for a writ of mandamus." Id. The court of appeals has seventy-two hours to decide such an application, is to "apply ordinary standards of appellate review," and if it denies the relief sought, must clearly state its reasons in a written opinion. Id. ; see also Kenna v. U.S. Dist. Court , 435 F.3d 1011, 1018 (9th Cir. 2006) (apologizing for our "regrettable failure" to comply with the seventy-two-hour requirement).

There are limitations on the relief a victim may obtain. The CVRA provides that the failure to provide a right under the Act is not grounds for a new trial. 18 U.S.C. § 3771(d)(5). Nevertheless, under certain circumstances (not relevant here) a victim may move to re-open a plea or a sentence. Id. The CVRA expressly states that it does not create a cause of action for damages and "shall [not] be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." Id. § 3771(d)(6).

III

The Tribe has taken a direct appeal from the district court's restitution awards. We held in United States v. Mindel that "the beneficiary of [a] criminal restitution order made pursuant to the VWPA[ ] does not have standing to pursue [an] appeal." 80 F.3d 394, 396 (9th Cir. 199...