US, et al v. Aguirre-Gonzalez

Filing 920100302

Opinion

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var WPFootnote1 = 'Of the Tenth Circuit, sitting by designation.\
'

var WPFootnote2 = 'For simplicity\'s sake, we refer to Schmeelk, Finneran, and JIRA\
Associates, LP as "appellants" notwithstanding our conclusion that \
this challenge should have been brought as a mandamus petition.\
'

var WPFootnote3 = 'As we will explain, these statutes are (1) the Victim Witness\
Protection Act, 18 U.S.C. § 3663, which provides crime victims with\
a limited right to restitution at sentencing; (2) the Mandatory\
Victim Restitution Act, 18 U.S.C. §§ 3663A, 3664, which provides\
victims of certain economic crimes with a right to a mandatory\
restitution, and sets forth certain procedural mechanisms to\
enforce such restitution orders; and (3) the Crime Victims\' Rights\
Act, 18 U.S.C. 3771, which makes available to crime victims, among\
other things, procedural mechanisms to assert substantive rights in\
a defendant\'s criminal proceedings and on appeal, including rights\
as provided in the VWPA and MVRA.\
'

var WPFootnote4 = 'The facts relating to Aguirre\'s fraudulent investment scheme are\
drawn from the uncontested portions of his presentence report\
(PSR). United States v. Brewster, 127 F.3d 22, 24 (1st Cir. 1997).\
'

var WPFootnote5 = 'In July 2003, appellants and others filed a civil action against\
Aguirre in federal district court in Puerto Rico seeking to recoup\
their losses stemming from the fraud. Aguirre failed to answer,\
and the district court subsequently entered a partial default\
judgment, on which appellants have been unable to collect. \
Previously, in 2002, appellants were able to recover roughly a\
third of their total losses resulting from the OAT lease in\
unrelated proceedings.\
'

var WPFootnote6 = 'We allowed one such victim, Wells Capital Management, Inc.,\
successor in interest to Strong Capital Management, to participate\
in these proceedings as a provisional intervenor only.\
'

var WPFootnote7 = 'On May 8, 2008, we ordered appellants to show cause as to why\
their appeal should not be dismissed for want of jurisdiction. On\
September 5, 2008, we directed the parties to address certain\
issues we now consider in this appeal.\
'

var WPFootnote8 = 'In addition, the CVRA provides an additional "[l]imitation on\
relief": \
\
              In no case shall a failure to afford a right under this\
chapter [this section] provide grounds for a new trial.\
A victim may make a motion to re-open a plea or sentence\
only if--\
                   (A) the victim has asserted the right to be heard\
before or during the proceeding at issue and such right\
was denied;\
                   (B) the victim petitions the court of appeals for a\
writ of mandamus within 14 days; and\
                   (C) in the case of a plea, the accused has not pled\
to the highest offense charged.\
               This paragraph does not affect the victim\'s right to\
restitution as provided in title 18, United States Code. \
18 U.S.C. § 3771(d)(5).\
'

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