United States v. Norman Stoerr , 695 F.3d 271 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-2787
_____________
UNITED STATES OF AMERICA
v.
NORMAN STOERR
Sevenson Environmental Services,*
Appellant
*pursuant to FRAP 12(a)
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-08-cr-0521-001)
District Judge: Susan D. Wigenton
_____________
Submitted Under Third Circuit LAR 34.1
June 21, 2012
Before: AMBRO, VANASKIE and ALDISERT, Circuit
Judges
1
(Filed: August 28, 2012)
_____________
OPINION
_____________
Lawrence S. Lustberg, Esq.
Gibbons P.C.
One Gateway Center
Newark, NJ 07102
Counsel for Appellant Sevenson Environmental
Services, Inc.
Minryu Kim, Esq.
Alan J. Bozer, Esq.
Phillips Lytle LLP
3400 HSBC Center
Buffalo, NY 14203
Counsel for Appellant Sevenson Environmental
Services, Inc.
Mark E. Coyne, Esq., Chief, Appeals Division
United States Attorney‟s Office
970 Broad Street, Suite 700
Newark, NJ 01702
Counsel for Appellee United States of America
Sharis A. Pozen, Esq., Acting Assistant Attorney General
(Did not enter an appearance)
2
Scott D. Hammond, Esq., Deputy Assistant Attorney General
(Did not enter an appearance)
John P. Fonte, Esq.
John J. Powers, III, Esq.
Finnuala K. Tessier, Esq.
United States Department of Justice
Antitrust Division
950 Pennsylvania Ave., NW
Room 3224
Washington, DC 20530
Counsel for Appellee United States of America
VANASKIE, Circuit Judge.
Norman Stoerr was convicted of participating in an
illegal bid rigging and kickback scheme in connection with
his employment at Sevenson Environmental Services, Inc.
(“Sevenson”). Sevenson, a non-party to the underlying
criminal proceeding, voluntarily compensated one of Stoerr‟s
victims, Tierra Solutions, Inc. (“Tierra”). At Stoerr‟s
sentencing, Sevenson sought restitution under the Mandatory
Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A et
seq., for reimbursement of the amount that it paid as
compensation to Tierra. The District Court denied
Sevenson‟s request for restitution, instead ordering that Stoerr
pay restitution to Tierra. Sevenson now attempts to appeal
Stoerr‟s sentence, contending that the District Court erred in
declining to grant its request for restitution. We will dismiss
Sevenson‟s appeal because, as a non-party, it lacks standing
to appeal.
I.
3
On July 23, 2008, Stoerr pled guilty to bid rigging, in
violation of 15 U.S.C. § 1; conspiracy to provide kickbacks
and to defraud the United States, in violation of 18 U.S.C. §
371; and assisting in the preparation of false tax returns, in
violation of 26 U.S.C. § 7206(2). The convictions stemmed
from kickback payments that Stoerr solicited and accepted
from sub-contractors in connection with projects managed by
Sevenson, his employer from 1980 to October 2003.
Sevenson obtained contracts in 2000 and 2004 with the
United States Army Corps of Engineers to perform
remediation services as the prime contractor at the Federal
Creosote Superfund Site (“Federal Creosote”) in Manville,
New Jersey. From 1999 to 2007, Sevenson also had a
contract with Tierra, a private company, to perform
remediation services as the general contractor at the Diamond
Alkali Superfund Site (“Diamond Alkali”) in Newark, New
Jersey. The Environmental Protection Agency was
responsible for paying Sevenson for its services at Federal
Creosote, and Tierra was responsible for paying Sevenson for
its services at Diamond Alkali. At both project sites,
Sevenson hired sub-contractors, and then sought
reimbursement from the payer for the sub-contractor charges,
plus a fee equal to a fixed percentage of the sub-contractor
charges.
From 2000 to 2002, Stoerr was the superintendent at
Diamond Alkali, and from 2002 to 2003, he was the assistant
project manager/contracts administrator at Federal Creosote.
At Diamond Alkali, Stoerr was responsible for soliciting
vendors, and at Federal Creosote, he was responsible for
4
soliciting bids for sub-contracts. In both positions, he
reported to Gordon McDonald, the project manager.
From 2000 to 2004, Stoerr, at McDonald‟s direction,
solicited and accepted kickbacks valued at $77,132 from sub-
contracting companies National Industrial, Inc. (“National
Industrial”), JMJ Environmental Services, Inc. (“JMJ”),
Bennett Environmental Inc., and Haas Sand & Gravel LLC.1
In return for the kickbacks, Stoerr and McDonald treated the
sub-contracting companies favorably in awarding sub-
contracts for the Federal Creosote and Diamond Alkali
projects.
Stoerr and McDonald passed the cost of the kickbacks
on to Tierra and to the EPA by including the amount of the
kickbacks in the sub-contractors‟ invoices that they submitted
for reimbursement. In total, the District Court determined
that Stoerr‟s and McDonald‟s scheme resulted in losses of
$134,098.96 to the EPA and $257,129.22 to Tierra. Of the
$257,129.22 in losses to Tierra, the District Court found that
$25,000 related to kickback payments from National
Industrial and its partial owner, Victor Boski, and
$232,129.22 related to kickback payments from JMJ and its
owner, John Drimak Jr.
After Sevenson learned of the kickbacks scheme, it
paid Tierra $202,759.04 to compensate it for its losses
relating to the JMJ and Drimak scheme, and $38,158.11 to
compensate it for its losses relating to the National Industrial
1
The kickbacks to Stoerr were in the form of money,
tools, and a cruise.
5
and Boski scheme. It then commenced a civil action against
Stoerr in state court to recover its losses, and sought
restitution in connection with Stoerr‟s sentencing.
Regarding Stoerr‟s sentencing, Sevenson filed letters
with the United States Probation Office and with the District
Court, seeking restitution from Stoerr under the MVRA. The
MVRA “compels a sentencing court to order a defendant
convicted of certain crimes, including crimes against
property, to make restitution to his victim.” United States v.
Aguirre-Gonzalez, 597 F.3d 46, 51 (1st Cir. 2010) (emphasis
omitted) (quoting United States v. Innarelli, 524 F.3d 286,
292-93 (1st Cir. 2008)) (internal quotation marks omitted). In
particular, the MVRA provides that “[i]n each order of
restitution, the court shall order restitution to each victim in
the full amount of each victim‟s losses as determined by the
court and without consideration of the economic
circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A).
The MVRA also provides that “[i]f a victim has received
compensation from insurance or any other source with respect
to a loss, the court shall order that restitution be paid to the
person who provided or is obligated to provide the
compensation.” § 3664(j)(1). Sevenson claimed that it was
entitled to restitution because it reimbursed Tierra for its
losses.2
2
Sevenson also initially sought restitution as a victim
under the Crime Victims‟ Rights Act (“CVRA”), 18 U.S.C. §
3771. The CVRA, enacted in 2004, permits either the victim
or the Government to assert the victim‟s rights before the
district court under § 3771(d)(1). Sevenson, however, does
not pursue any claim under the CVRA in this appeal.
6
On May 23, 2011, the District Court conducted
Stoerr‟s sentencing, during which it denied Sevenson‟s
request for restitution. In declining to grant restitution to
Sevenson, the District Court determined that Tierra, rather
than Sevenson, was Stoerr‟s victim. Moreover, the District
Court noted that “Sevenson has the opportunity to pursue a
civil remedy here.” (A. 201.)
The District Court sentenced Stoerr to a five-year
period of probation and ordered restitution in the amount of
$391,228.18, with $134,098.96 apportioned to the EPA and
$257,129.22 apportioned to Tierra. The District Court‟s order
provided that Stoerr was jointly and severally liable for
$232,192.22 of the Tierra payment with his co-conspirator,
Drimak, whom the District Court had previously ordered to
pay $232,192.22 in restitution to Tierra. Because Stoerr
lacked the financial ability to make the restitution payments
in full, the District Court ordered him to pay $250 per month.
On June 22, 2011, the District Court ordered that
Stoerr‟s obligation to pay Tierra $25,000 for the losses
relating to the National Industrial and Boski scheme was
satisfied because “Tierra . . . received full compensation” for
its losses stemming from that scheme. (A. 173.) The District
Court also ordered that Sevenson‟s $202,759.04 payment to
Tierra counted towards Stoerr‟s $232,129.22 restitution
obligation relating to Tierra‟s losses from the JMJ and
Drimak scheme, and reduced Stoerr‟s remaining restitution
obligation to Tierra to $29,370.18.
Sevenson moved for reconsideration of the District
Court‟s restitution order, which the District Court denied.
Sevenson then filed a notice of appeal. The Government
7
moved to dismiss Sevenson‟s appeal, arguing that Sevenson,
as a non-party, is unable to appeal Stoerr‟s sentence. We
referred the Government‟s motion to our merits panel and
now consider the Government‟s motion together with the
parties‟ merits briefs.
II.
Sevenson contends that the District Court erred in
failing to award it restitution in compensation for its
payments to Tierra, because the MVRA requires district
courts to order restitution to any entity that has compensated
the crime victim. See 18 U.S.C. § 3664(j)(1) (“If a victim has
received compensation from insurance or any other source
with respect to a loss, the court shall order that restitution be
paid to the person who provided . . . the compensation . . . .”).
Although Sevenson acknowledges that it is not a party to
Stoerr‟s criminal proceedings, it asserts that it nonetheless has
a right to appeal the District Court‟s restitution order as a
non-party payer of compensation to a victim under the
MVRA.
The Government responds that Sevenson cannot
appeal, because non-parties are unable to appeal a criminal
defendant‟s final judgment and sentence. The Government
also contends that the District Court did not abuse its
discretion in ordering restitution payments to Tierra rather
than to Sevenson, because district courts must fully
compensate victims for their losses under § 3664(f)(1)(A),
and because Stoerr is jointly and severally liable for the
$232,192.22 restitution payment with Drimak. We will
dismiss Sevenson‟s appeal, because Sevenson, as a non-party,
lacks standing to appeal Stoerr‟s sentence.
8
A.
To have standing to appeal, the appellant “must be
aggrieved by the order of the district court from which it
seeks to appeal.”3 IPSCO Steel (Ala.), Inc. v. Blaine Constr.
Corp., 371 F.3d 150, 154 (3d Cir. 2004) (quoting McLaughlin
v. Pernsley, 876 F.2d 308, 313 (3d Cir. 1989)) (internal
quotation marks omitted). Ordinarily, only parties to a
3
As the Supreme Court and our Court have
emphasized, standing to appeal is a separate concept from
standing under Article III of the Constitution. See, e.g.,
Devlin v. Scardelletti, 536 U.S. 1, 6-7 (2002); Deposit Guar.
Nat’l Bank v. Roper, 445 U.S. 326, 333-34 (1980); IPSCO
Steel (Ala.), Inc. v. Blaine Constr. Corp., 371 F.3d 150, 154
(3d Cir. 2004). A party has Article III standing if it satisfies
the “case-or-controversy” requirement, whereas a party has
standing to appeal if it “is aggrieved” by the district court‟s
order or judgment. IPSCO Steel (Ala.), Inc., 371 F.3d at 154.
Although we suggested in McLaughlin v. Pernsley, 876 F.2d
308, 313 (3d Cir. 1989), that the requirement that the
appellant “be aggrieved by the” district court‟s decision
“expresses the limitation imposed by Article III of the federal
Constitution that one wishing to invoke the jurisdiction of a
federal court have suffered an injury in fact,” the Supreme
Court explained in Deposit Guaranty National Bank v. Roper
that standing to appeal is a “rule . . . of federal appellate
practice . . . derived from the statutes granting appellate
jurisdiction and the historic practices of the appellate courts.”
445 U.S. at 333. The Supreme Court explicitly noted that “it
does not have its source in the jurisdictional limitations of
Art. III.” Id. at 333-34.
9
proceeding adversely affected by the judgment entered in that
proceeding are aggrieved by the judgment. See Kaplan v.
Rand, 192 F.3d 60, 66-67 (2d Cir. 1999) (“[I]f not a party, the
putative appellant is not concluded by a judgment, and is not
therefore aggrieved by it.”) (alteration and internal quotation
marks omitted) (quoting West v. Radio-Keith-Orpheum Corp.,
70 F.2d 621, 624 (2d Cir. 1934)); Sec. & Exch. Comm’n v.
An-Car Oil Co., 604 F.2d 114, 119 (1st Cir. 1979)
(“Ordinarily, only a person who was a party to the proceeding
below and who is aggrieved by the judgment or order is
entitled to appeal.”) (citations omitted); Burleson v. Coastal
Recreation, Inc., 572 F.2d 509, 511 (5th Cir. 1978) (same).
Accordingly, the Supreme Court and our Court have long
recognized, as a general matter, that “only parties to a lawsuit,
or those that properly become parties, may appeal an adverse
judgment.” Marino v. Ortiz, 484 U.S. 301, 304 (1988)
(citations omitted); see also Karcher v. May, 484 U.S. 72, 77
(1987) (“[W]e have consistently applied the general rule that
one who is not a party or has not been treated as a party to a
judgment has no right to appeal therefrom.”) (citations
omitted); In re Leaf Tobacco Bd. of Trade, 222 U.S. 578, 581
(1911) (“One who is not a party to a record and judgment is
not entitled to appeal therefrom.”) (citations omitted); IPSCO
Steel (Ala.), Inc., 371 F.3d at 153 (“Ordinarily, only parties of
record before the district court have standing to appeal.”)
(citing Caplan v. Fellheimer Eichen Braverman & Kaskey, 68
F.3d 828, 836 (3d Cir. 1995)).
Sevenson does not contest the fact that it is not a party
to Stoerr‟s criminal proceeding. Indeed, courts have
recognized that “[n]otwithstanding the rights reflected in the
restitution statutes, crime victims are not parties to a criminal
sentencing proceeding.” Aguirre-Gonzalez, 597 F.3d at 53
10
(citations omitted); see also United States v. Grundhoefer,
916 F.2d 788, 793 (2d Cir. 1990) (explaining that “[t]he
victim[,] as a non-party[,]” has only limited rights under the
Victim and Witness Protection Act (“VWPA”), 18 U.S.C. §
3663 et seq.). Sevenson claims entitlement to restitution, not
as a victim, but as one who has reimbursed losses incurred by
a victim of its former employee. If victims are non-parties to
criminal proceedings, then Sevenson, who is a degree
removed from victim status, is likewise a non-party. The
presumptive rule, therefore, is that Sevenson cannot appeal.
See Aguirre-Gonzalez, 597 F.3d at 53 (“[T]he baseline rule is
that crime victims, as non-parties, may not appeal a
defendant‟s criminal sentence.”) (citations omitted).
We find no reason to disturb the presumptive rule in
the context of a non-party payer‟s appeal of a restitution
order. A restitution order is part of a defendant‟s sentence.
See United States v. Syme, 276 F.3d 131, 159 (3d Cir. 2002)
(“Restitution orders have long been treated as part of the
sentence for the offense of conviction . . . .”) (citations
omitted). Thus, as the Tenth Circuit recognized, permitting a
non-party to appeal a restitution order “would produce the
extraordinary result of reopening [a criminal defendant‟s]
sentence” for the benefit of a private party.4 United States v.
Hunter, 548 F.3d 1308, 1314 (10th Cir. 2008).
4
Sevenson argues that permitting its appeal will not
disturb Stoerr‟s final judgment and sentence, because it seeks
only to “correct[] the payee” in the District Court‟s restitution
order. (Appellant‟s Resp. in Opp‟n to Mot. to Dismiss at 14.)
Sevenson ignores, however, that it is asking us to alter the
District Court‟s restitution award, which is part of Stoerr‟s
sentence. See United States v. Monzel, 641 F.3d 528, 541
11
Neither our Court nor any other Court of Appeals has
ever permitted this result. To the contrary, all Courts of
Appeals to have addressed this issue have concluded that non-
parties cannot directly appeal a restitution order entered
against a criminal defendant. See, e.g., Aguirre-Gonzalez,
597 F.3d at 54 (“[C]rime victims have no right to directly
appeal a defendant‟s criminal sentence, under the CVRA or
otherwise.”); Grundhoefer, 916 F.2d at 793 (holding that a
victim lacks standing to appeal a restitution order); United
States v. United Sec. Sav. Bank, 394 F.3d 564, 567 (8th Cir.
2004) (holding that a crime victim lacks Article III standing
to appeal under the MVRA); United States v. Mindel, 80 F.3d
394, 398 (9th Cir. 1996) (“[A crime victim] does not have
standing under the VWPA to challenge the district court‟s
order rescinding restitution payments.”); Hunter, 548 F.3d at
1316 (“[N]either our case law nor the CVRA provide[s] for
non-parties . . . to bring a post-judgment direct appeal in a
criminal case.”); United States v. Johnson, 983 F.2d 216, 217
(D.C. Cir. 2011) (“[The victim] is asking the court to revisit
her restitution award, which is part of [the defendant‟s]
sentence.”) (citations omitted). Moreover, Sevenson has
requested that we vacate the District Court‟s order
determining that Stoerr‟s restitution obligations of $25,000
relating to the National Industrial and Boski scheme and
$202,759.04 relating to the JMJ and Drimak scheme have
been satisfied. Granting Sevenson‟s requested relief will thus
result in a much larger criminal restitution judgment.
Because granting Sevenson‟s requested relief will
dramatically alter Stoerr‟s restitution obligations, we disagree
that we can grant Sevenson‟s request without disturbing
Stoerr‟s final judgment and sentence.
12
(11th Cir. 1993) (holding that the VWPA “does not afford a
victim . . . standing to appeal the rescission of a restitution
order”); United States v. Monzel, 641 F.3d 528, 544 (D.C.
Cir. 2011) (“[W]e hold that [a non-party appellant] may not
directly appeal her restitution award . . . .”).
We agree that a non-party lacks standing to appeal a
restitution order, because a non-party lacks “a „judicially
cognizable interest‟” in a criminal defendant‟s sentence, and
is thus not aggrieved by the defendant‟s sentence.
McLaughlin, 876 F.2d at 313 (quoting Diamond v. Charles,
476 U.S. 54, 71 (1986)). Although a restitution order may
resemble a civil judgment in the sense that it compensates a
private party, it remains “criminal rather than civil in nature.”
United States v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006) (en
banc). Criminal punishment “is not operated primarily for the
benefit of victims, but for the benefit of society as a whole.”
Kelly v. Robinson, 479 U.S. 36, 52 (1986). Therefore,
regardless of the benefit that a restitution order may bestow
on a private entity, restitution is largely “for the benefit of the
State” rather than for the benefit of a private party.5 Id. at 53
5
Sevenson argues that our decision in United States v.
Kones, 77 F.3d 66, 68 (3d Cir. 1996), requires us to conclude
that non-parties have standing to appeal restitution orders, and
that 28 U.S.C. § 1291 is a broad grant of jurisdiction over all
final district court decisions. In Kones, a purported victim
sought to appeal the district court‟s conclusion that she was
not entitled to restitution because she was not a “victim”
under the VWPA. 77 F.3d at 68. Without addressing the
purported victim‟s standing to appeal, we noted in one
sentence that we had appellate jurisdiction under 28 U.S.C. §
1291. Id. A “drive-by jurisdictional ruling[],” in which
13
(quotation marks omitted). Moreover, criminal prosecutions
“place an individual citizen against the United States
government.” Hunter, 548 F.3d at 1312. Accordingly, even
if a defendant‟s sentence affects other individuals, “[i]t is the
defendant and he alone that suffers the direct consequences of
a criminal conviction and sentence.” Grundhoefer, 916 F.2d
at 791.
Sevenson attempts to distinguish its appeal from the
long line of precedent holding that a non-party lacks a
judicially cognizable interest in a defendant‟s prosecution by
arguing that the MVRA implies a right of appeal by non-party
payers. Sevenson also asserts that we have recognized
exceptions permitting interested non-parties to appeal, and
that such an exception should be made here. We reject
Sevenson‟s arguments in turn below.
B.
We first disagree that the MVRA‟s statutory scheme
contains an implicit right of appeal by non-parties. Citing
jurisdiction “ha[s] been assumed by the parties, and . . .
assumed without discussion by the [c]ourt,” does not create
binding precedent. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 91 (1998) (citations omitted). We therefore are
not bound by the bald jurisdictional statement in Kones.
Moreover, 28 U.S.C. § 1291‟s broad jurisdictional grant does
not permit us to ignore the requirement that the appellant
have standing to appeal. See United States v. Hunter, 548
F.3d 1308, 1312 (10th Cir. 2008) (“[T]he issues of
jurisdiction under § 1291 and non-party appellate rights are
distinct.”).
14
United States v. Diaz, 245 F.3d 294, 312 (3d Cir. 2001),
Sevenson contends that allowing standing here will further
the purpose of the MVRA. In Diaz, we recognized that “[t]he
purpose of restitution under the MVRA is to compensate the
victim for its losses and, to the extent possible, to make the
victim whole.” Id. (citing United States v. Kress, 944 F.2d
155, 159-60 (3d Cir. 1991)). The MVRA‟s statutory scheme,
in Sevenson‟s view, encourages third-parties to compensate
victims voluntarily by mandating reimbursement to the payer.
See § 3664(j)(1) (“If a victim has received compensation from
insurance or any other source with respect to a loss, the court
shall order that restitution be paid to the person who provided
or is obligated to provide the compensation . . . .”). Because
“preclud[ing] a pay[e]r from vindicating her right[] [to
reimbursement] through the appellate process will . . .
discourage or even deter would-be pay[e]rs from making
victims whole,” Sevenson urges us to hold that the MVRA‟s
statutory scheme contains an implied right of appeal by non-
party payers. (Appellant‟s Resp. in Opp‟n to Mot. to Dismiss
at 10.)
Although we appreciate that conferring non-party
payers with appellate rights may encourage third-parties to
compensate victims voluntarily, we cannot conclude that the
MVRA implies a right of appeal by non-parties. First, the
MVRA gives no indication that it disturbs the default rule that
only the Government and the defendant can appeal a
defendant‟s sentence. Instead, as the Government explains, §
3664(o)(1)(B) notes that a restitution order can be “appealed
and modified” pursuant to 18 U.S.C. § 3742. Section 3742
permits appeals by the defendant and by the Government, but
does not purport to allow appeals by non-parties. Because
“[i]t is not the province of a federal court to confer rights
15
where statutory language is silent,” Am. Trucking Ass’ns v.
Del. River Joint Toll Bridge Comm’n, 458 F.3d 291, 303 (3d
Cir. 2006) (citing California v. Sierra Club, 451 U.S. 287,
297 (1981)), the MVRA‟s omission of any language
recognizing non-party appellate rights counsels against
permitting non-party appeals.
Moreover, we are especially hesitant to find an implied
right of appeal by non-party payers under the MVRA,
because Congress explicitly granted victims the right to
petition the court of appeals for a writ of mandamus under the
CVRA, but did not grant non-party payers an analogous
means to obtain court of appeals review under the MVRA.
See § 3771(d)(3) (permitting victims to petition for a writ of
mandamus under the CVRA).6 Congress‟s decision to permit
6
Specifically, § 3771(d)(1) of the CVRA provides that
“[t]he crime victim or the crime victim‟s lawful
representative, and the attorney for the Government[,] may
assert the rights” under the CVRA. Section 3771(d)(3)
explains that CVRA “rights . . . shall be asserted in the district
court,” and “[i]f the district court denies the relief sought, the
movant may petition the court of appeals for a writ of
mandamus.” As other courts have agreed, the CVRA thus
allows victims to petition for a writ of mandamus. See, e.g.,
United States v. Aguirre-Gonzalez, 597 F.3d 46, 54 (1st Cir.
2010) (“[T]he CVRA expressly provides crime victims with a
limited avenue to challenge the restitution component of a
defendant‟s sentence through a petition for a writ of
mandamus . . . .”) (citations omitted); Monzel, 641 F.3d at
540 (“Since the enactment of the CVRA, every circuit to
consider the question has held that mandamus is a crime
victim‟s only recourse for challenging a restitution order.”).
16
victims to seek mandamus review under the CVRA, but to
refrain from including a similar provision for non-party
payers under either the MVRA or the CVRA, suggests that
Congress did not intend to permit appeals by non-party
payers.
Finally, the MVRA‟s statutory scheme indicates that
Congress intended for the Government, rather than for payers
and victims, to be primarily responsible for ensuring proper
restitution payments. For example, the MVRA provides that
“[t]he burden of demonstrating the amount of the loss
sustained by a victim as a result of the offense shall be on the
attorney for the Government,” § 3664(e) (emphasis added),
and that “[a]n order of restitution may be enforced by the
United States in the manner provided for in . . . [18 U.S.C. §§
3571 et seq. and 3611 et seq.]; or . . . by all other available
and reasonable means.” § 3664(m)(1)(A)(i)-(ii) (emphasis
added). A victim‟s role, by contrast, is limited to conferring
with the Government “to the extent practicable” regarding the
amounts of restitution, § 3664(d)(1); submitting information
to the probation officer regarding his or her losses; §
3664(d)(2)(A)(iii), (vi); petitioning the district court for an
amended restitution award if he or she discovers further
losses, § 3664(d)(5); moving for an adjustment of the
defendant‟s payment schedule if the defendant‟s economic
circumstances change, § 3664(k); and obtaining “an abstract
of judgment certifying that a judgment has been entered in”
his or her favor. § 3664(m)(1)(B). Because the MVRA‟s
statutory scheme assigns to the Government the primary
responsibility for ensuring proper restitution orders, we
cannot infer from the MVRA that Congress intended to
permit non-party payers to appeal purportedly improper
restitution orders. See Transamerica Mortg. Advisors, Inc. v.
17
Lewis, 444 U.S. 11, 19 (1979) (“[W]here a statute expressly
provides a particular remedy or remedies, a court must be
chary of reading others into it.”).
We acknowledge, as Sevenson emphasizes, that the
Sixth Circuit held in United States v. Perry, 360 F.3d 519,
524 (6th Cir. 2004), that a victim has standing under the
MVRA to appeal a district court‟s order vacating a lien that
the victim obtained under § 3664(m)(1)(B) against a criminal
defendant‟s property to collect court-ordered restitution. We
disagree, however, that Perry demonstrates that a non-party
payer can appeal a criminal defendant‟s sentence. In Perry,
the Sixth Circuit reasoned that the MVRA permits a victim to
obtain a lien to ensure that the defendant satisfies his or her
restitution obligation. Id. A lien under the MVRA is “a lien
on the property of the defendant located in such State in the
same manner and to the same extent and under the same
conditions as a judgment of a court of general jurisdiction in
that State.” Id. at 525 (quoting § 3664(m)(1)(B)). In the state
where defendant Perry‟s property was located, a lien gave rise
to a property interest for the victim. Id. Because the lien
created a property interest, the victim was entitled to due
process before the district court vacated the lien. Id. at 525-
26. Out of concern that declining to hear the appeal would
result in a deprivation of the victim‟s property without due
process, the Sixth Circuit determined that the victim had
standing under the MVRA. Id. at 526.
Sevenson, by contrast, cannot present the due process
issue that the Sixth Circuit confronted in Perry, because it
does not have a cognizable property interest created by state
law. We therefore do not face the constitutional concern that
encouraged the Sixth Circuit to find that a victim has standing
18
to appeal a district court‟s order vacating a lien entered
pursuant to § 3664(m)(1)(B). Moreover, as the Government
emphasizes, the victim in Perry did not request that Perry‟s
final sentence be reopened. We, by contrast, cannot review
the District Court‟s restitution order without reopening
Stoerr‟s sentence. Perry thus does not persuade us that the
MVRA affords standing to appeal to non-parties.7
7
Sevenson also cites to a letter from Senator Jon Kyl
to Attorney General Eric Holder, in which Senator Kyl states
that “when Congress passed the CVRA, the federal courts of
appeals had recognized that crime victims could take ordinary
appeals to protect their rights.” Letter from Senator Jon Kyl
to Attorney Gen. Eric Holder (June 6, 2011), reprinted in 157
Cong. Rec. S3608 (daily ed. June 8, 2011). In support of
Senator Kyl‟s argument that victims were able to appeal to
protect their rights at the time of the CVRA‟s passage, the
letter cites to our decision in Kones, 77 F.3d 66 and to Doe v.
United States, 666 F.2d 43, 46 (4th Cir. 1981), an appeal by a
rape victim of a district court‟s pre-trial ruling relating to the
admissibility of the victim‟s past sexual behavior and
reputation at trial. Id. The letter continues that “Congress
sought to leave these protections in place, while expanding
them to ensure that crime victims could obtain quick
vindication of their rights in appellate courts” through the
CVRA‟s mandamus provision in § 3771(d)(3). Id. Senator
Kyl‟s letter, however, does not persuade us that non-parties
have a right to appeal under the MVRA, because the letter
concerns the CVRA rather than the MVRA. Additionally, a
statement by an individual senator does not “amend the clear
and unambiguous language of a statute,” Barnhart v. Sigmon
Coal Co., 534 U.S. 438, 457 (2002), especially when the
senator‟s statement follows long after the statute‟s enactment.
19
C.
Next, Sevenson contends that the Supreme Court and
our Court have recognized exceptions to the rule against non-
party appeals where the non-party has a pecuniary interest in
the dispute. See, e.g., Devlin v. Scardelletti, 536 U.S. 1, 14
(2002) (“We hold that nonnamed class members . . . who
have objected in a timely manner to approval of the
settlement . . . have the power to bring an appeal without first
intervening.”); Caplan, 68 F.3d at 836 (holding in the civil
context that a non-party with “a stake in the outcome of the
district court proceedings” may sometimes appeal) (citing
Binker v. Pennsylvania, 977 F.2d 738, 745 (3d Cir. 1992)).
Because, in Sevenson‟s view, it has an interest in restitution
under § 3664(j)(1), it asserts that it can appeal the District
Court‟s restitution order as an interested non-party.
As an initial matter, as Sevenson acknowledges, courts
have allowed interested non-parties to appeal in primarily
civil, rather than criminal, matters. See, e.g., Devlin, 536 U.S.
at 14 (permitting unnamed class members to appeal); Caplan,
68 F.3d at 836 (holding in the civil context that certain non-
parties have a right to appeal); Northview Motors, Inc. v.
Chrysler Motors Corp., 186 F.3d 346, 349 (3d Cir. 1999)
(holding in the civil context that a non-party with “a stake in
the outcome of the proceedings that is discernible from the
record” can sometimes appeal) (citing Caplan, 68 F.3d at
836). Sevenson cites to no precedent in which the Supreme
See Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1081 (2011)
(“Post-enactment legislative history . . . is not a legitimate
tool of statutory interpretation.”) (citations omitted).
20
Court or our Court has allowed an exception to the rule
against non-party appeals in the context of a final criminal
judgment.8
8
Sevenson argues that we may consider its appeal to
be civil based on United States v. Lavin, 942 F.2d 177, 182
(3d Cir. 1991), where we held that an appeal of a district
court order rejecting a third-party‟s purported interest in
forfeited property was a civil matter, even though the district
court entered the initial forfeiture order as part of a criminal
defendant‟s sentence. We do not agree that Sevenson‟s
appeal is civil in nature. First, our Court has already
concluded “that restitution ordered as part of a criminal
sentence is criminal rather than civil in nature.” United States
v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006) (en banc).
Moreover, in Lavin, we reasoned that the appeal was civil in
nature because “a hearing to adjudicate the validity of a third-
party‟s interest in forfeited property is not a criminal
prosecution, i.e., an action commenced by the government to
secure a sentence of conviction for criminal conduct.” 942
F.2d at 182. In particular, we explained that because the
defendant had already forfeited the disputed property,
reviewing the district court‟s rejection of the third-party‟s
interest in the property would not affect the criminal
defendant‟s rights. Id. Sevenson‟s request, by contrast, will
substantively affect Stoerr‟s rights, because, as explained in
note 4 supra, Sevenson asks us to vacate the District Court‟s
order determining that all but $29,370.18 of Stoerr‟s
restitution obligation has been satisfied. Accordingly,
because Sevenson asks us to materially alter Stoerr‟s
sentence, its appeal is not civil.
21
Assuming that the exceptions permitting certain
interested non-parties to appeal apply in the criminal context,
none of our recognized exceptions permits Sevenson‟s
appeal. Our primary exception, known as the Binker
exception, permits non-party appeals when “(1) the nonparty
has a stake in the outcome of the proceedings that is
discernible from the record; (2) the nonparty has participated
in the proceedings before the district court; and (3) the
equities favor the appeal.” Northview Motors, Inc., 186 F.3d
at 349 (citing Caplan, 68 F.3d at 836). As we explained in
Section II(A) supra, a non-party does not have a judicially
cognizable stake in a criminal defendant‟s sentence.
Sevenson therefore cannot satisfy the first prong of the Binker
exception, and thus cannot establish entitlement to appeal as
an interested non-party.
III.
Because Sevenson does not have standing to appeal
Stoerr‟s sentence, we will grant the Government‟s motion to
dismiss.9
9
Because Sevenson lacks standing to appeal, we do
not reach the question of whether the District Court abused its
discretion in failing to award restitution to Sevenson.
22