In re: Morning Star Packing Company v. USDC, Sacramento

Filing

FILED PER CURIAM OPINION (HARRY PREGERSON, SUSAN P. GRABER and CARLOS T. BEA) The government s ex parte motion to file its appendix under seal is granted. The appendix shall be filed under seal and shall not be available to any other parties to this petition. GRANTED; REMANDED. FILED AND ENTERED JUDGMENT. [8569436]

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FILED
MAR 29 2013

FOR PUBLICATION
UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

In re: THE MORNING STAR PACKING
COMPANY, LP and LIBERTY
PACKING COMPANY, LLC, Crime
Victims.

No. 13-71048

THE MORNING STAR PACKING
COMPANY, LP and LIBERTY
PACKING COMPANY, LLC,

OPINION

D.C. No. 2:10-cr-00061-LKK-1

Petitioners,
v.
UNITED STATES DISTRICT COURT,
EASTERN DISTRICT OF CALIFORNIA,
SACRAMENTO,
Respondent,
FREDERICK SCOTT SALYER,
Defendant - Real Party in Interest,
UNITED STATES OF AMERICA,
Plaintiff - Real Party in Interest.

Petition for Writ of Mandamus to the United States District Court
for the Eastern District of California

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Submitted March 27, 2013 *
Filed March 29, 2013
Before: PREGERSON, GRABER, and BEA, Circuit Judges.
PER CURIAM:
This is a petition for a writ of mandamus filed pursuant to 18 U.S.C. § 3771,
the Crime Victims’ Rights Act (“CVRA”).1
In reviewing CVRA mandamus petitions, we are required not to balance the
factors outlined in Bauman v. United States District Court, 557 F.2d 650 (9th Cir.
1977). See Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006).
Rather, this court “must issue the writ whenever we find that the district court’s
order reflects an abuse of discretion or legal error.” Id.
On March 12, 2013, the district court denied restitution to petitioners and
others who assert they have been harmed as a result of the offenses for which
Frederick Scott Salyer has been convicted. Petitioners challenge this denial.
Petitioners sought restitution pursuant to the Mandatory Victim Restitution
Act (“MVRA”). The MVRA provides restitution, inter alia, to victims of offenses

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1

The government’s ex parte motion to file its appendix under seal is
granted. The appendix shall be filed under seal and shall not be available to any
other parties to this petition.
2

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against property, “including any offense committed by fraud or deceit.” 18 U.S.C.
§ 3663A(c)(1)(A)(ii).2 Under the MVRA, “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). Moreover, the alternative availability of recovery through a civil
lawsuit is irrelevant in determining restitution under the MVRA. See 18 U.S.C.
§ 3664(f)(1)(B) (“In no case shall the fact that a victim has received or is entitled to
receive compensation with respect to a loss from insurance or any other source be
considered in determining the amount of restitution.”); see also United States v.
Cienfuegos, 462 F.3d 1160, 1168 (9th Cir. 2006) (“under the MVRA the
availability of a civil suit can no longer be considered by the district court in
deciding the amount of restitution”).
On the other hand, the MVRA does not require an award of restitution in
certain circumstances:
[I]f the court finds, from facts on the record, that . . . determining complex
issues of fact related to the cause or amount of the victim’s losses would
2

The MVRA further provides that “the term ‘victim’ means a person directly
and proximately harmed as a result of the commission of an offense for which
restitution may be ordered including, in the case of an offense that involves as an
element a scheme, conspiracy, or pattern of criminal activity, any person directly
harmed by the defendant’s criminal conduct in the course of the scheme,
conspiracy, or pattern.” 18 U.S.C. § 3663A(a)(2).
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complicate or prolong the sentencing process to a degree that the need to
provide restitution to any victim is outweighed by the burden on the
sentencing process.
18 U.S.C. § 3663A(c)(3).
Here, a review of the record suggests that, in denying restitution, the district
court relied, in part, on a determination that assessing restitution would be an
unduly complex and time-consuming exercise. The record also shows, however,
that in making that determination, the district court relied heavily on its
conclusions that (1) Salyer would be financially unable to satisfy any restitution
award and (2) the victims could pursue relief through civil actions.
We conclude that the district court committed legal error in denying
restitution because of Salyer’s claimed financial status and the potential availability
of civil remedies. See 18 U.S.C. § 3664(f)(1)(A), (B); see also Cienfuegos, 462
F.3d at 1168. Further, to the extent that the district court’s denial of restitution
rested on a determination that complex issues of fact would complicate or prolong
the sentencing process, the record is unclear as to whether the district court
conducted the balancing test required by 18 U.S.C. § 3663A(c)(3) and determined
“from facts on the record” that the burden on the sentencing process of determining
restitution would outweigh the need to provide restitution to victims. See 18
U.S.C. § 3663A(c)(3).
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Accordingly, the petition for a writ of mandamus pursuant to 18 U.S.C.
§ 3771 is granted. The district court shall vacate its March 14, 2013, judgment
with respect to restitution and shall conduct further proceedings, consistent with
this opinion, as necessary to determine whether to award restitution to any victims.
GRANTED and REMANDED with instructions.

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Counsel Listing
Dale Curtis Campbell & Brendan J. Begley, Weintraub Genshlea Chediak Tobin &
Tobin Law Corporation, Sacramento, California, for Petitioners.
Elliot Remsen Peters, Brian L. Ferrall, Jo W. Golub, John Watkins Keker, &
Justina K. Sessions, Keker & Van Nest LLP, San Francisco, California; Malcolm
S. Segal, Segal & Kirby LLP, Sacramento, California, for Defendant - Real Party
in Interest.
Jared C. Dolan & Benjamin B. Wagner, Assistant United States Attorneys, Office
of the United States Attorney, Sacramento, California; Anna Tryon Pletcher,
United States Department of Justice, Antitrust Division, San Francisco, California,
for Plaintiff - Real Party in Interest.

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