United States v. Gary Kovall , 857 F.3d 1060 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50419
Plaintiff,
D.C. No.
TWENTY-NINE PALMS BAND 2:12-cr-00441-MWF-1
OF MISSION INDIANS,
Third-Party-Plaintiff-
Appellant,
v.
GARY EDWARD KOVALL,
Defendant-Appellee.
UNITED STATES OF AMERICA, No. 15-50420
Plaintiff,
D.C. No.
TWENTY-NINE PALMS BAND 2:12-cr-00441-MWF-2
OF MISSION INDIANS,
Third-Party-Plaintiff-
Appellant, OPINION
v.
DAVID ALAN HESLOP,
Defendant-Appellee.
2 TWENTY-NINE PALMS BAND V. KOVALL
Appeals from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted February 10, 2017
Pasadena, California
Filed May 30, 2017
Before: Susan P. Graber, Jay S. Bybee,
and Morgan B. Christen, Circuit Judges.
Opinion by Judge Bybee
SUMMARY*
Criminal Law
The panel dismissed appeals by third-party plaintiff
Twenty-Nine Palms Band of Mission Indians (“the Tribe”)
from restitution orders handed down as part of the sentences
imposed on two criminal defendants.
The panel held that the Tribe has Article III standing to
appeal an award under the Mandatory Victims Restitution
Act, but that a victim may not directly appeal such an award.
The panel held that neither the MVRA nor the Due Process
Clause confers a right on a victim to challenge restitution
awards except as provided in 18 U.S.C. § 3771(d)(3).
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TWENTY-NINE PALMS BAND V. KOVALL 3
COUNSEL
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.
4 TWENTY-NINE PALMS BAND V. KOVALL
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
TWENTY-NINE PALMS BAND V. KOVALL 5
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
6 TWENTY-NINE PALMS BAND V. KOVALL
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.
1
The district court entered two restitution awards, one for each
defendant. Therefore, the Tribe filed two appeals, one for each defendant.
Nonetheless, for ease, we will refer to the restitution awards and appeals
in this case as singular.
2
Heslop also appealed his underlying conviction. All issues other
than the Tribe’s ability to appeal are dealt with in a memorandum
disposition filed herewith.
3
Congress has also created a number of other mandatory
restitutionary schemes for specific areas of criminal offenses. See
18 U.S.C. § 2248 (sexual abuse); id. § 2264 (domestic violence and
stalking); id. § 2327 (telemarketing fraud). These are not relevant to our
discussion here.
TWENTY-NINE PALMS BAND V. KOVALL 7
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).
4
The MVRA amended the VWPA to provide for additional
procedural protections for victims. See, e.g., 18 U.S.C. § 3664(d)(1). For
convenience, we discuss the VWPA as amended.
8 TWENTY-NINE PALMS BAND V. KOVALL
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.
TWENTY-NINE PALMS BAND V. KOVALL 9
§ 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
10 TWENTY-NINE PALMS BAND V. KOVALL
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. 1996). The
Tribe argues that Mindel is limited to appeals from restitution
awards issued under the VWPA and that the Tribe has
standing to appeal an award under the MVRA. We conclude
that the Tribe has Article III standing to appeal an award
under the MVRA, but we also hold that neither the MVRA
nor the Due Process Clause confers a right on the Tribe to
challenge restitution awards except as provided in 18 U.S.C.
§ 3771(d)(3).
A
In order to meet the “irreducible constitutional minimum
of standing,” three elements must be met: (1) a party must
have suffered an “injury in fact,” which is an actual or
imminent invasion of a legally protected, concrete, and
particularized interest, (2) “there must be a causal connection
between the injury and the conduct complained of,” and (3) it
must be likely that the injury will be redressable by a
favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992).
The general rule is that non-parties to a criminal
prosecution have no standing to appeal the judgment. See
Diamond v. Charles, 476 U.S. 54, 56 (1986) (“Because a
TWENTY-NINE PALMS BAND V. KOVALL 11
private party whose own conduct is neither implicated nor
threatened by a criminal statute has no judicially cognizable
interest in the statute’s defense, we dismiss the appeal for
want of jurisdiction.”); United States v. Alcatel-Lucent Fr.,
SA, 688 F.3d 1301, 1307 (11th Cir. 2012) (per curiam)
(recognizing the “default rule” that “crime victims have no
standing to appeal a defendant’s sentence”); United States v.
Grundhoefer, 916 F.2d 788, 791 (2d Cir. 1990) (“The direct,
distinct and palpable injury in a criminal sentencing
proceeding plainly falls only on the defendant who is being
sentenced.”); see also Linda R.S. v. Richard D., 410 U.S. 614,
619 (1973) (“[A] private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another.”).
The Tenth Circuit explained, “Criminal trials . . . place an
individual citizen against the United States government.
While non-parties may have an interest in aspects of the case,
they do not have a tangible interest in the outcome.” United
States v. Hunter, 548 F.3d 1308, 1312 (10th Cir. 2008). The
Supreme Court has rejected the standing of non-parties to
challenge criminal sentences even when the non-parties claim
some kind of collateral effect on their own interests. See,
e.g., Whitmore v. Arkansas, 495 U.S. 149, 156–57 (1990)
(holding that the petitioner lacked standing to challenge the
death sentence of another prisoner, even though he claimed
Arkansas had a system of “comparative review in death
penalty cases”).
A victim’s challenge to an order of restitution stands on
slightly different footing than a non-party appeal from a
sentence imposed on a defendant. The victim has a more
direct interest in the outcome of the case and, where the
district court’s judgment involves a monetary award of
restitution to a victim, the victim has a discrete and
quantifiable interest in the judgment. That the victim has
12 TWENTY-NINE PALMS BAND V. KOVALL
such an interest, however, does not guarantee that the victim
has either standing or the right to appeal the restitution order.
We first addressed third-party standing to appeal a
restitution award in Mindel. In Mindel, the district court
required Mindel to make restitution payments under the
VWPA, and portions of Mindel’s stock and property were
held as security. See 80 F.3d at 396 (noting that the district
court “expressly incorporat[ed]” a civil settlement agreement
between Mindel and the victims). Mindel failed to meet his
payment obligations, and the victims foreclosed on the
security for the restitution. Mindel then asked the district
court to modify his restitution obligations. In light of the
foreclosure and Mindel’s diminished ability to pay, the
district court rescinded Mindel’s obligation to make further
payments, and the victims appealed the district court’s order.
Id. We held that the victims had not suffered an “injury in
fact” and therefore lacked standing to pursue the appeal. Id.
at 397; see also Kelly v. Robinson, 479 U.S. 36, 52 (1986)
(“[T]he decision to impose restitution generally does not turn
on the victim’s injury, but on the penal goals of the State and
the situation of the defendant.”). Looking to an Eleventh
Circuit opinion, we agreed that the victims’ interest was
compensatory, while the government’s interest was penal,
and a “restitution order serves a penal rather than a
compensatory purpose.” Mindel, 80 F.3d at 397 (citing
United States v. Johnson, 983 F.2d 216, 217–20 (11th Cir.
1993)); see also United States v. Brown, 744 F.2d 906, 910
(2d Cir. 1984) (“[T]he VWPA . . . compensate[s] the victim
. . . in a manner distinct from the normal functioning of a civil
adjudication. . . . [U]nlike a civil suit, the victim is not a
party to a sentencing hearing and therefore has only a limited
ability to influence the outcome.”).
TWENTY-NINE PALMS BAND V. KOVALL 13
The Tribe argues that the MVRA changed the legal
landscape because the MVRA, unlike the VWPA, makes
restitution mandatory for certain crimes. See 18 U.S.C.
§ 3663A(a)(1). Whereas district courts may award restitution
under the VWPA, they must award restitution to the victims
of the crimes identified by the MVRA. Compare id.
§ 3663(a)(1)(A) (“may order”), with id. § 3663A(a)(1) (“shall
order”). Moreover, we have held that restitution under the
MVRA is not purely penal. See United States v. Gordon,
393 F.3d 1044, 1048 (9th Cir. 2004) (“The primary and
overarching goal of the MVRA is to make victims of crime
whole.”); see also United States v. Serawop, 505 F.3d 1112,
1122 & n.4 (10th Cir. 2007) (“Even assuming the statute is
ambiguous, we have recognized that the MVRA does not
inflict criminal punishment, and thus is not punitive.”).
Accordingly, “[w]e’ve held in some contexts that ‘restitution
under the MVRA is punishment.’ But in other contexts,
we’ve held that it’s not. Sometimes we’ve held it’s a hybrid,
with ‘both compensatory and penal purposes.’” United States
v. Green, 722 F.3d 1146, 1150 (9th Cir. 2013) (citations
omitted).
The differences between the MVRA and the VWPA
require a different result here than we reached in Mindel.
There are two differences, albeit related, that lead us to
conclude that victims entitled to restitution under the MVRA
have suffered injury in fact when full restitution is not
ordered. The first, and most obvious, is that awarding
restitution under the MVRA is mandatory, not discretionary.
18 U.S.C. § 3663A(a)(1). Like the VWPA, the MVRA is
quite specific as to what the order of restitution shall include.
The MVRA covers injury to life and property and provides
measures for how to value the damages suffered by the crime
victims, including medical expenses, physical therapy, child
14 TWENTY-NINE PALMS BAND V. KOVALL
care, and funeral expenses. Id. § 3663A(b). The mandate in
the MVRA means that qualified defendants have at least
some claim of entitlement to restitution. See Bd. of Regents
v. Roth, 408 U.S. 564, 577 (1972) (holding that a “legitimate
claim of entitlement” is an injury in fact). Second, because
of the restitution mandate, we have now recognized that the
policy behind MVRA restitution is at least partially
compensatory, and not merely penal, in nature. We thus
conclude that victims who contend that they are covered by
the MVRA but have not been properly compensated by a
district court’s restitution order may claim sufficient “injury
in fact” to satisfy Article III. Cf. United States v. Perry,
360 F.3d 519, 531–32 (6th Cir. 2004) (holding that the
“Intervenor has undoubtedly suffered an injury in fact
because the district court vacated Intervenor’s property
interest [obtained in a restitution order] after it had been
secured by the judgment lien”).
We recognize that two circuits have concluded that
putative victims of crime do not have standing to appeal a
restitution order under the MVRA. See United States v.
Stoerr, 695 F.3d 271, 275–78 (3d Cir. 2012); United States v.
United Sec. Sav. Bank, 394 F.3d 564, 567 (8th Cir. 2004) (per
curiam) (citing, inter alia, United States v. Mindel). For
reasons we explain in the next Section, we agree with those
courts that victims cannot appeal from a restitution award, but
we respectfully disagree that it is because the victims lack
Article III standing.5
5
The Third Circuit’s decision in Stoerr is distinguishable on other
grounds. In Stoerr, the putative victim was not a direct victim of the
fraudulent kickback scheme, but was the defendant’s employer, who had
voluntarily compensated the victims for its employee’s actions. 695 F.3d
at 276. The employer then claimed that it was also a victim and entitled
TWENTY-NINE PALMS BAND V. KOVALL 15
Having concluded that the Tribe has grounds to complain
of an injury in fact, we have little difficulty concluding that
the Tribe can show a causal connection between the district
court’s restitution order and its injury and that its injury is
redressable at law.
B
The fact that a would-be litigant has Article III standing
does not guarantee the right to take an appeal. See Devlin v.
Scardelletti, 536 U.S. 1, 6–7 (2002) (holding that an unnamed
class member satisfied standing where the question was
“whether petitioner should be considered a ‘party’ for the
purposes of appealing the approval of the settlement”). In the
federal system, there is no general right to an appeal. See
Carroll v. United States, 354 U.S. 394, 399 (1957) (“It is
axiomatic, as a matter of history as well as doctrine, that the
existence of appellate jurisdiction in a specific federal court
over a given type of case is dependent upon authority
expressly conferred by statute.”). This is true even in
criminal cases. See Cobbledick v. United States, 309 U.S.
323, 325 (1940) (“Not until 1889 was there review as of right
in criminal cases.”); United States v. Sanges, 144 U.S. 310,
319 (1892) (“For a long time after the adoption of the
Constitution, . . . [it was] settled that criminal cases could not
be brought from a Circuit Court of the United States to this
court by writ of error, but only by certificate of division of
to restitution under the MVRA. The court held that the employer did not
have standing to appeal the defendant’s sentence and order of restitution
and noted that the employer had a civil remedy against its former
employee. Id. at 274. There is language in Stoerr that suggests that the
Third Circuit might hold that actual victims also lack standing, but the
decision does not have to be read so broadly.
16 TWENTY-NINE PALMS BAND V. KOVALL
opinion upon specific questions of law.”). The power to
create “appellate Jurisdiction” in the federal courts is limited
to “such Regulations as the Congress shall make.” U.S.
Const. art. III, § 2, cl. 2; Sanges, 144 U.S. at 319 (“The
appellate jurisdiction of this court rests wholly on the acts of
Congress.”). Congress has granted the courts of appeals
broad power to hear “appeals from all final decisions of the
district courts of the United States.” 28 U.S.C. § 1291. But
the power to hear appeals does not tell us who may perfect an
appeal.
In civil litigation, the “well settled” general rule is 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) (per curiam); see 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.”). This “general rule” is reflected in the Federal
Rules of Appellate Procedure, which similarly provide that
only parties to the underlying litigation may appeal the
judgment. See Fed. R. App. P. 3(c)(1) (“The notice of appeal
must: (A) specify the party or parties taking the appeal
. . . .”). The Federal Rules of Civil Procedure provide a
mechanism for interested persons to intervene in the original
litigation, either because they have a statutory right or an
interest in the property or transaction that is the subject of the
suit, or because they share a common question of law or fact
that gives them an interest in the outcome of the suit. See
Fed. R. Civ. P. 24(a), (b). But even if a person has an interest
in the outcome of the litigation, unless the person intervenes
in the suit or has a statutory right to appeal, the person cannot
TWENTY-NINE PALMS BAND V. KOVALL 17
appeal a suit to which it has not become a party.6 “[T]he
better practice is for such a nonparty to seek intervention for
purposes of appeal; denials of such motions, are, of course,
appealable.” Marino, 484 U.S. at 304.
A similar rule applies in criminal proceedings. Not until
the Act of 1889 did Congress grant defendants the right to
appeal their conviction after a final judgment. See 28 U.S.C.
§ 1291; Carroll, 354 U.S. at 400–01; Sanges, 144 U.S. at
321–22. For many years, the government had no right to take
an appeal from a judgment in a criminal case. See Sanges,
144 U.S. at 323 (holding that there was “[no] indication of an
intention [by Congress] to confer upon the United States the
right to bring up a criminal case of any grade after judgment
below in favor of the defendant”). Congress finally granted
the United States the right of appeal in the Criminal Appeals
Act of 1907. United States v. Sisson, 399 U.S. 267, 292–96
(1970). Congress later granted the government the right to
appeal an order dismissing an indictment or granting a new
trial, suppressing evidence, or granting the release of a person
convicted or charged with an offense. 18 U.S.C. § 3731; see
Fed. R. App. P. 4(b)(1). Similarly, Congress has provided
that either the government or the defendant may appeal a final
sentence and has specified the conditions on which they may
appeal. 18 U.S.C. § 3742(a), (b). By contrast to the rules
governing civil litigation, the Federal Rules of Criminal
6
We break from this rule “only in exceptional circumstances.” S.
Cal. Edison Co. v. Lynch, 307 F.3d 794, 804 (9th Cir. 2002) (citation
omitted). Necessary, but not sufficient, conditions for finding an
exceptional circumstance are that the non-party “actually participated in
proceedings before the district court and the equities weigh in favor of
hearing the appeal.” EEOC v. Pan Am. World Airways, Inc., 897 F.2d
1499, 1504 (9th Cir. 1990). This judicially created exception has never
been extended to the criminal context, and we decline to do so here.
18 TWENTY-NINE PALMS BAND V. KOVALL
Procedure do not provide for a right of intervention. Hunter,
548 F.3d at 1312.
Nothing in the MVRA alters these rules. The MVRA
does not confer on victims the right to appeal from a district
court’s restitution order. The Tribe offers no provision of the
MVRA as evidence that Congress granted victims the right to
appeal. In light of the longstanding rule that appellate
jurisdiction is determined by statute, this is fatal to the Tribe’s
case for a right to appeal. The Third Circuit has aptly
explained:
[T]he 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.
Stoerr, 695 F.3d at 278. This conclusion finds further support
in a provision of the CVRA: “In any appeal in a criminal
case, the Government may assert as error the district court’s
denial of any crime victim’s right in the proceeding to which
the appeal relates.” 18 U.S.C. § 3771(d)(4). That Congress
authorized the government to defend the restitution rights of
victims and did not authorize the victims themselves to
pursue their own appeal is nearly conclusive evidence that
victims have no right of appeal. See Stoerr, 695 F.3d at 279
(“[T]he MVRA’s statutory scheme indicates that Congress
intended for the Government, rather than for payers and
TWENTY-NINE PALMS BAND V. KOVALL 19
victims, to be primarily responsible for ensuring proper
restitution payments.”).
The Tribe argues that Congress granted victims an
implied right to appeal, as evidenced by the various
provisions of the MVRA that permit victims to participate in
the proceedings and require the district court to award
restitution to victims. 18 U.S.C. §§ 3663A(a)(1), 3664(d)(2).
This observation is too thin to satisfy the rigorous demands
that the Supreme Court has placed on defendants and the
government alike to demonstrate their right to appeal. See,
e.g., Sanges, 144 U.S. at 323. Absent some statute
authorizing appeal by victims, we decline to infer such a
right, and we join the other circuits that have similarly
refused to recognize such a right. See United States v.
Slovacek, 699 F.3d 423, 425–27 (5th Cir. 2012); Stoerr,
695 F.3d at 278–79; United States v. Aguirre-González,
597 F.3d 46, 53–55 (1st Cir. 2010); Hunter, 548 F.3d at
1311–12; United Sec. Sav. Bank, 394 F.3d at 567.7
7
We are aware of, and the Tribe relies heavily upon, United States v.
Kones, 77 F.3d 66 (3d Cir. 1996). In that case a victim appealed the
district court’s refusal to order restitution under the VWPA. The Third
Circuit did not discuss the victim’s right to bring the appeal, but only
noted that it had “appellate jurisdiction pursuant to 28 U.S.C. § 1291.” Id.
at 68. No court, including the Third Circuit, has followed Kones. Stoerr,
695 F.3d at 277 n.5 (stating that it does not consider itself bound by this
“bald” and “drive-by jurisdictional” statement (citations omitted)); see
United States v. Fast, 709 F.3d 712, 716 (8th Cir. 2013) (criticizing
Kones), vacated on other grounds sub nom. Vicky, Child Pornography
Victim v. Fast, 134 S. Ct. 1934 (2014) (mem.); In re Amy Unknown,
701 F.3d 749, 756 n.5 (5th Cir. 2012) (en banc) (same), rev’d on other
grounds sub nom. Paroline v. United States, 134 S. Ct. 1710 (2014);
Alcatel-Lucent, 688 F.3d at 1307 n.2 (same); United States v. Monzel,
20 TWENTY-NINE PALMS BAND V. KOVALL
Finally, we reject the Tribe’s claim to a right to appeal for
another reason: although Congress has not granted victims a
right to appeal a restitution order, it has provided victims with
a more limited statutory remedy. The CVRA confers on
victims a discrete set of nine rights. We have previously
described these, see supra Section II.C, but they are largely
rights to notice of and participation in any court proceedings.
See 18 U.S.C. § 3771(a)(1)–(9). The CVRA does not expand
the substantive rights to restitution for loss of property and
life that were set out in the VWPA and MVRA, but simply
repeats that a crime victim has the “right to full and timely
restitution as provided in law.” Id. § 3771(a)(6). The rights
described in § 3771(a) “shall be asserted in the district court
in which a defendant is being prosecuted for the crime.” Id.
§ 3771(d)(3). That subsection further provides that “[i]f the
district court denies the relief sought, the movant may
petition the court of appeals for a writ of mandamus,” and it
supplies instructions about our handling of the petition and
the timing of our decision. Id. Congress thus granted victims
a limited right to seek a writ of mandamus in the courts of
appeals and omitted any reference to their right to appeal.
The Supreme Court has reminded us that when Congress’s
statutes provide a means of obtaining relief, we “must be
chary of reading others into [them].” TAMA v. Lewis,
444 U.S. 11, 19 (1979). In other words, Congress’s MVRA
restitution procedure is “carefully crafted and [its] detailed
enforcement scheme provides ‘strong evidence that Congress
did not intend to authorize other remedies that it simply
forgot to incorporate expressly.’” Mertens v. Hewitt Assocs.,
641 F.3d 528, 541 n.13 (D.C. Cir. 2011) (same). We decline to follow
Kones because it is an unreasoned decision and contrary to well-
established principles.
TWENTY-NINE PALMS BAND V. KOVALL 21
508 U.S. 248, 254 (1993) (citation omitted). The Tribe has
no right to bring the appeal in this case.
C
The Tribe makes an alternative argument that because the
MVRA gives victims a statutory right to restitution, it cannot
be deprived of that right without a remedy, including a right
to appeal. Citing the Sixth Circuit’s opinion in United States
v. Perry, 360 F.3d 519 (6th Cir. 2004), the Tribe claims that
it is “aggrieved by the district court’s restitution order.”
Perry stood on a very different procedural ground from this
case. Perry did not involve a direct appeal from a restitution
order. Rather, in Perry, the district court had ordered
restitution to various victims of securities fraud. The
appellant in Perry was an “intervenor”8 who obtained a lien
on Perry’s real property, arguably in preference to other
victims. The district court vacated the lien and allowed Perry
to sell the property and pay the proceeds over to the district
court for distribution to all the victims, including the
intervenor. The intervenor then filed an appeal, and the
government moved to dismiss for want of standing. Id. at
521–22.
The Sixth Circuit held that the intervenor had standing
under the MVRA. Id. at 524. The MVRA gives a victim the
right, after restitution has been ordered, to require a district
8
The record in Perry does not disclose how the non-party victim
formally intervened in the criminal case. While holding that the civil
rather than criminal notice-of-appeal deadlines applied, however, the court
noted that “although the judgment lien is related to a criminal proceeding,
. . . a dispute over a lien is more appropriately classified as a ‘civil-type’
litigation.” Perry, 360 F.3d at 524.
22 TWENTY-NINE PALMS BAND V. KOVALL
court to issue a lien against the defendant’s property. See 18
U.S.C. § 3664(m)(1)(B). The Sixth Circuit held that a non-
party victim could appeal the district court’s decision to
remove such a lien. Perry, 360 F.3d at 526. It reasoned that
depriving a victim of such a constitutionally recognized
property interest without any due process might raise
constitutional concerns. See id. at 525. Thus, it chose to
construe the statute to allow for an appeal of the district
court’s order removing the lien so as to avoid the possibility
of constitutional problems. See id.
But Perry has little to do with a non-party victim’s ability
to appeal a restitution order. The crux of the Sixth Circuit’s
logic relies on the fact that it was dealing with a post-
restitution-order lien and that a lien is a property interest in
state law and within the meaning of the Fifth and Fourteenth
Amendments. See id. The Third, Eighth, Eleventh, and D.C.
Circuits all recognized (or strongly hinted) that Perry is
limited to its procedural posture: where a district court takes
away a judgment lien in satisfaction of an existing restitution
order.9 See Stoerr, 695 F.3d at 279–80 (rejecting Perry
because a right to restitution is not a right created by state
law, thus not a cognizable property interest); Alcatel-Lucent,
9
We addressed a similar issue in United States v. Berger, 574 F.3d
1202 (9th Cir. 2009). Berger was ordered to pay some $3 million in
restitution to his fraud victims. After the district court issued a final
sentence and restitution order, the government filed an application to
disburse the proceeds. Berger’s ex-wife objected on the ground that she
was entitled to half the proceeds as community property. We did not
question the ex-wife’s standing or right to appeal the distribution order.
Id. at 1204. She was not appealing the restitution order itself and did not
claim to be one of Berger’s victims. Instead, she appealed from a different
order, one that affected whatever rights she had under California law to
the property of the marriage. Id. at 1205–06.
 TWENTY-NINE PALMS BAND V. KOVALL 23
688 F.3d at 1306–07 (noting that Perry does not stand for the
proposition that a victim may appeal a actual restitution
award); United States v. Monzel, 641 F.3d 528, 543 & n.15
(D.C. Cir. 2011) (“[T]he victim in Perry was not appealing an
order awarding restitution . . . .”); United Sec. Sav. Bank,
394 F.3d at 567 (rejecting Perry while noting that it applied
only to the release of a judgment lien). Indeed, Perry did not
extend its ruling to cover a run-of-the-mill right to restitution
under the MVRA. See Perry, 360 F.3d at 530–31
(contrasting itself with cases that “involved the appeal of an
order rescinding or modifying a restitution order”).
Even assuming that the MVRA grants victims a
constitutionally protected property interest within the
meaning of the Due Process Clause, Perry does not counsel
for allowing a direct appeal here. Although depriving the
Tribe of legally owed restitution without any process would
risk unconstitutionality, the Tribe has been given full process
of law. Under 18 U.S.C. § 3771(d)(3), a non-party victim has
the opportunity to prove damages in the first instance; if the
district court nonetheless issues a ruling that a victim
disagrees with, the victim (or government) can ask the district
court for relief; and, if denied, the victim (or government)
may petition an appellate court for a writ of mandamus. And
if that fails, the government can still directly appeal the
restitution order, although the government may—in an
exercise of its own prosecutorial discretion—choose not to
appeal. 18 U.S.C. § 3771(d)(4), (6); see United States v.
Cienfuegos, 462 F.3d 1160, 1161 (9th Cir. 2006) (“The
Government appeals the district court’s denial of its motion
to order restitution . . . .”).
These procedures do not violate the Fifth Amendment’s
Due Process Clause. To determine the constitutional
24 TWENTY-NINE PALMS BAND V. KOVALL
sufficiency of procedure under the Due Process Clause, the
Court has enunciated a balancing test involving three factors:
(1) the private interest that will be affected; (2) the risk of an
erroneous deprivation through the procedures used, and the
probable value of additional or substitute procedural
safeguards; and (3) the government’s interest in not applying
additional procedural safeguards. See Mathews v. Eldridge,
424 U.S. 319, 335 (1976).
Mathews’s first factor looks to the “private interest,” and
while the private interest in restitution is not insignificant, it
is nonetheless slight. Restitution is only partly
compensatory, as its historical roots grow from entirely
punitive purposes. See Mindel, 80 F.3d at 397. Indeed,
restitution is an alternative to seeking a judgment in civil
courts via regular civil proceedings. See 18 U.S.C.
§ 3664(j)(2) (“Any amount paid to a victim under an order of
restitution shall be reduced by any amount later recovered as
compensatory damages for the same loss by the victim[.]”).
So regardless of any failure to receive restitution, a victim can
get damages in a civil trial.
The second Mathews factor fares only slightly better than
the first. The risk of erroneous deprivation is minimal given
the aforementioned substantial process afforded to victims.
A victim can first make her case to the district court and, if
she thinks that the district court erred, she can ask the district
court to reconsider. If the district court still thinks that it got
it right, then her recourse is a writ of mandamus or asking the
government to appeal directly. And so even if the writ of
mandamus standard that we are to apply looks for only “clear
error,” see Stanley v. Chappell, 764 F.3d 990, 996 (9th Cir.
TWENTY-NINE PALMS BAND V. KOVALL 25
2014),10 the likelihood that this process will result in a
restitution order that is wrong, but not clearly wrong, is slight.
There may be some value added by permitting an appeal, but
the right to due process has never been understood to require
the right to an appeal. In any event, Congress has already
built a number of safeguards for victims seeking restitution.
The third Mathews factor weighs against recognizing a
right to appeal. The costs of allowing every putative victim
the right to appeal every putative MVRA defendant’s
restitution order (or lack thereof) might be great, which would
increase the costs of appeal to defendants and might thereby
impair defendants’ own important rights to appeal. Thus, the
government’s interest in not allowing a victim to re-open a
defendant’s sentence, except within the strict parameters of
§ 3771, is significant.
10
We note that, in determining whether to issue a writ under
§ 3771(d)(3), we have held that “we must issue the writ whenever we find
that the district court’s order reflects an abuse of discretion or legal error.”
Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006)
(recognizing that this “unique regime” under § 3771(d)(3) is different
from the ordinary standard for issuing mandamus). But see, e.g., In re
Antrobus, 519 F.3d 1123, 1124 (10th Cir. 2008) (holding that mandamus
issued pursuant to § 3771(d)(3) must satisfy the regular mandamus
standards). See generally Monzel, 641 F.3d at 532–33 (listing circuits on
each side of the split).
In 2015, Congress amended § 3771(d)(3) by adding, “[i]n deciding
such application [for a writ of mandamus], the court of appeals shall apply
ordinary standards of appellate review.” Justice for Victims of Trafficking
Act of 2015, Pub. L. No. 114-22, tit. I, § 113, 129 Stat. 227, 241 (2015).
We need not address whether the amendment affects our decision in
Kenna. See generally Hazama v. Tillerson, 851 F.3d 706, 710 (7th Cir.
2017) (contrasting “ordinary standards of appellate review” with the
ordinary standards of mandamus review).
26 TWENTY-NINE PALMS BAND V. KOVALL
Considering the three factors together, we conclude that,
as a matter of due process, the statutory scheme fully protects
victims, and we hold that non-party victims may not directly
appeal a criminal defendant’s restitution award. Congress
may, of course, judge the situation differently and decide in
the future to give victims additional rights.
IV
Because nothing in the MVRA authorizes victims to
appeal a restitution order, and the Due Process Clause does
not require it, we hold that the Tribe cannot directly appeal
the restitution order.
The Tribe’s appeal is DISMISSED.