United States v. Ronald Slovacek

REVISED OCTOBER 15, 2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 11-10444 October 10, 2012
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RONALD W. SLOVACEK,
Defendant-Appellee
v.
JAMES R. BILL FISHER; ODYSSEY RESIDENTIAL HOLDINGS, L.P.,
Appellants
Appeal from the United States District Court
for the Northern District of Texas
Before STEWART, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
CARL E. STEWART, Chief Judge:
Appellant James R. Bill Fisher, as well as his business, Appellant Odyssey
Residential Holdings, L.P., (hereinafter, collectively referred to as “Fisher”),
appeals the district court’s denial of his request for an award of restitution as a
purported victim of Defendant Ronald Slovacek’s criminal bribery offense. As
this court recently concluded that nonparties may not challenge adverse
No. 11-10444
restitution rulings via direct appeal, and instead must rely on the procedures for
such challenges expressly set forth in the Crime Victims’ Rights Act (“CVRA”),
see In re Amy Unknown, No. 09-41238, 2012 WL 4477444, at *5 (5th Cir. Oct. 1,
2012) (en banc), we dismiss this appeal.
I.
This case arises out of the public corruption trial centering around former
Dallas City Councilman Don Hill. Hill and others attempted to extort James
Fisher, vice president in charge of development and partner of Odyssey
Residential Holdings, a low-income housing developer, in exchange for their
support of Fisher’s planned housing projects. Fisher approached the FBI to
report the extortion, triggering the criminal investigation which led to the
indictment of Hill, Slovacek, and others. The district court awarded $112,500
to Fisher as a victim of the extortion conspiracy.
Count 10 of the Indictment charged Hill, low-income housing developer
Brian Potashnik, his subcontractor Slovacek, and three others with conspiracy
to commit bribery concerning a local government receiving federal funds, in
violation of 18 U.S.C. § 666. The factual allegations described that Hill and
others conspired to solicit and accept things of value in exchange for providing
official assistance to Potashnik in his pursuit of approval and funding for
affordable housing projects. Slovacek, an associate of Hill, was awarded
construction subcontracts in exchange for Hill’s official assistance to Potashnik.
The district court severed the cases of Slovacek and others.
On June 21, 2009, Potashnik entered a guilty plea as to Count 10. Fisher,
one of Potashnik’s competitors, filed a motion seeking $1.89 million in restitution
from Potashnik based on his conviction under Count 10. Fisher cited
expenditures on two projects for which he sought approval from the City of
Dallas. Neither project received approval or financing from the City. The
district court denied the motion for restitution, finding that Fisher failed to show
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that he was directly and proximately harmed by the conspiracy underlying
Potashnik’s conviction. This court denied Fisher’s petition for writ of
mandamus, brought pursuant to the CVRA, challenging the district court’s
restitution ruling. See In re Fisher (Fisher I), No. 11–10006, slip. op. at 2–3 (Jan.
10, 2011).
On November 19, 2010, a jury found Slovacek guilty of all three counts
against him, including Count 10. Prior to his sentencing, Fisher filed a motion
seeking the same $1.89 million in restitution from Slovacek, stemming from his
conspiracy conviction under Count 10. At Slovacek’s sentencing hearing, Fisher
was permitted to testify and reiterated his claim that he was a victim of
Slovacek’s bribery scheme because the investments he made to undertake
certain development projects were rendered worthless by the conspiracy. Orally
at sentencing, the district court denied the motion, finding that Fisher was not
a victim of Slovacek’s bribery conspiracy because Fisher was not directly and
proximately harmed by Slovacek’s offense.
On May 9, 2011, this court denied Fisher’s CVRA petition for writ of
mandamus challenging the district court’s denial of restitution against Slovacek
pursuant to his conviction under Count 10. See In re Fisher (Fisher II), 640 F.3d
645 (5th Cir. 2011).
After the sentencing transcript was released, Fisher moved for
reconsideration of this court’s denial of his petition claiming restitution against
Slovacek. This court denied the motion for reconsideration on August 8, 2011.
See In re Fisher (Fisher III), 649 F.3d 401 (5th Cir. 2011).
The district court entered a final written judgment against Slovacek,
which did not order him to pay restitution to Fisher. Fisher directly appealed
the judgment. The Government has moved to dismiss this appeal for lack of
jurisdiction.
II.
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The court reviews its own jurisdiction de novo. Nehme v. INS, 252 F.3d
415, 420 (5th Cir. 2001).
III.
A.
Fisher first asserts that he is entitled to restitution under the Mandatory
Victims Restitution Act of 1996 (“MVRA”). The MVRA provides that when
sentencing a defendant convicted of certain offenses, “the court shall order, in
addition to . . . any other penalty authorized by law, that the defendant make
restitution to the victim of the offense . . . .” 18 U.S.C. § 3663A(a)(1).
In 2004, Congress enacted the Crime Victims’ Rights Act (“CVRA”), which
gives victims eight enumerated rights, including “[t]he right to full and timely
restitution as provided in law.” Id. § 3771(a)(6). As part of its enforcement
scheme, the CVRA provides as follows:
The rights described in subsection (a) shall be asserted in the
district court in which a defendant is being prosecuted for the crime
or, if no prosecution is underway, in the district court in the district
in which the crime occurred. The district court shall take up and
decide any motion asserting a victim’s right forthwith. If the
district court denies the relief sought, the movant may petition the
court of appeals for a writ of mandamus. . . . The court of appeals
shall take up and decide such application forthwith within 72 hours
after the petition has been filed. In no event shall proceedings be
stayed or subject to a continuance of more than five days for
purposes of enforcing this chapter. If the court of appeals denies the
relief sought, the reasons for the denial shall be clearly stated on the
record in a written opinion.
Id. § 3771(d)(3). Also as part of its enforcement scheme, the CVRA provides that
“[i]n 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.” Id. § 3771(d)(4).
The CVRA further provides that a victim may make a motion to re-open
a sentence only if, in addition to two other requirements not at issue here, “the
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victim petitions the court of appeals for a writ of mandamus within 14 days[.]”
Id. § 3771(d)(5)(B). Lastly, the CVRA provides that “[n]othing in this chapter
shall be construed to impair the prosecutorial discretion of the Attorney General
or any officer under his direction.” Id. § 3771(d)(6).
B.
“The rule that only parties to a lawsuit, or those that properly become
parties, may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484
U.S. 301, 304 (1988); see also Bayard v. Lombard, 50 U.S. 530, 546 (1850)
(holding that a writ of error “cannot be sued out by persons who are not parties
to the record, . . . [or] by strangers to the judgment and proceedings . . .”); Payne
v. Niles, 61 U.S. 219, 221 (1857) (“[I]t is very well settled in all common-law
courts, that no one can bring up, as plaintiff in a writ of error, the judgment of
an inferior court to a superior one, unless he was a party to the judgment in the
court below . . . .”); United States ex rel. La. v. Boarman, 244 U.S. 397, 402
(1917) (describing the principle proscribing nonparty appeals “as a subject no
longer open to discussion”).
The courts of appeals have recognized limited exceptions to this rule. The
Supreme Court has regarded these exceptions with, at best, skepticism. See
Marino, 484 U.S. at 304 (“The Court of Appeals suggested that there may be
exceptions to this general rule, primarily when the nonparty has an interest that
is affected by the trial court’s judgment. . . . We think the better practice is for
such a nonparty to seek intervention for purposes of appeal; denials of such
motions are, of course, appealable.” (internal quotation marks and citation
omitted)); United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 933
(2009) (“The Court has further indicated that intervention is the requisite
method for a nonparty to become a party to a lawsuit.”).
Unlike the Federal Rules of Civil Procedure, there is no procedure for
nonparty intervention in criminal cases. “[T]he Federal Rules of Criminal
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Procedure express an aversion to allowing third-party interference with
sentencing.” McClure v. Ashcroft, 335 F.3d 404, 412-13 (5th Cir. 2003). This
court has noted that “judgments, particularly criminal judgments, should not be
lightly disturbed.” Id. at 411. “In this regard, criminal defendants did not even
have a right to appeal until 1889.” Id. at 412.
This court recently determined that nonparty victims do not have the right
of direct appeal under the CVRA. See In re Amy, 2012 WL 4477444, at *5
(“Because nothing in the CVRA suggests that Congress intended to grant crime
victims the right to an appeal or otherwise vary the historical rule that crime
victims do not have the right of appeal, we conclude that the CVRA grants crime
victims only mandamus review.”). In light of this ruling, we hold that our circuit
precedent forecloses Fisher’s MVRA claim brought pursuant to the CVRA.
Fisher further argues that even if the CVRA does not contemplate direct
appeals by victims, he should still be allowed to appeal under 28 U.S.C. § 1291,
which provides that “[t]he courts of appeals . . . shall have jurisdiction of appeals
from all final decisions of the district courts of the United States . . . .” However,
as sister circuits considering this question have explained, § 1291 concerns what
may be appealed rather than who may appeal. See United States v. Aguirre-
Gonzalez, 597 F.3d 46, 52-53 (1st Cir. 2010); United States v. Hunter, 548 F.3d
1308, 1312 (10th Cir. 2008); see also In re Amy, 2012 WL 4477444, at *5 n.4
(explaining that sister circuit decisions allowing crime victims to appeal under
§ 1291 are unpersuasive). The question of who may appeal remains governed by
the principle that nonparties generally lack the capacity to appeal. Fisher’s
expansive interpretation of § 1291 would nullify this established principle, as
any nonparty, not only victims of crimes, would be able to appeal district court
decisions so long as they were final.
Accordingly, pursuant to circuit precedent and the well-established
principle that nonparties are generally not permitted to appeal adverse
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No. 11-10444
judgments, particularly in criminal cases, we lack jurisdiction to consider
Fisher’s direct appeal of the district court’s criminal judgment.
IV.
For the foregoing reasons, we DISMISS this direct appeal for lack of
jurisdiction. All pending motions are DENIED.
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