In re: Stake Center Locating, Inc., et al v. USDC, Las Vega

Filing

FILED PER CURIAM OPINION (MICHAEL DALY HAWKINS, RONALD M. GOULD and PAUL J. WATFORD) (Concurrence by MDH) DENIED. FILED AND ENTERED JUDGMENT. [8673707]--[Edited: Attached corrected opinion (filed date). 06/20/2013 by RY]

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FILED
FOR PUBLICATION
UNITED STATES COURT OF APPEALS

JUN 19 2013
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

In re: STAKE CENTER LOCATING,
INC., Crime Victim.

No. 13-72062
D.C. No. 2:13-cr-00089-JCMGWF-1

STAKE CENTER LOCATING, INC.,
Petitioner,

OPINION

v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA, LAS
VEGAS,
Respondent,
DEBORAH A. DiFRANCESCO,
Defendant - Real Party in
Interest,
UNITED STATES OF AMERICA,
Plaintiff - Real Party in
Interest.

Petition for Writ of Mandamus from the United States District Court
for the District of Nevada

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Submitted June 17, 2013 *
Filed June 19, 2013

Before: HAWKINS, GOULD, and WATFORD, Circuit Judges.
PER CURIAM:
Petitioner Stake Center Locating, Inc., a victim of defendant Deborah
DiFrancesco’s (“DiFrancesco”) crimes, petitions for a writ of mandamus pursuant
to 18 U.S.C. § 3771, the Crime Victims Rights Act (“CVRA”). Because we find
that the petition for a writ of mandamus is premature, we deny the petition.
DiFrancesco was charged with one count of income tax evasion in violation
of 26 U.S.C. § 7201 and three counts of wire fraud in violation of 18 U.S.C. §
1343. On May 29, 2013, pursuant to a plea agreement, DiFrancesco pled guilty to
all charges. In her plea agreement, DiFrancesco agreed to pay petitioner restitution
in the amount of $763,846.34. DiFrancesco’s sentencing hearing is scheduled for
September 4, 2013.
Prior to DiFrancesco’s May 29, 2013 plea hearing, petitioner filed a motion
in the district court for relief pursuant to the CVRA and the Mandatory Victim
Restitution Act (“MVRA”). In addition to requesting that the district court reject
*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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the plea agreement, petitioner requested mandatory forfeiture of certain assets
implicated in DiFrancesco’s criminal activities, which are no longer in
DiFrancesco’s possession. The district court denied petitioner’s motion without
prejudice. Petitioner challenges this denial.
In reviewing CVRA mandamus petitions, we are not required to balance the
factors outlined in Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir.
1977). Rather, this court “must issue the writ whenever we find that the district
court’s order reflects an abuse of discretion or legal error.” See Kenna v. United
States Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006).
Petitioner’s request for restitution is not yet ripe. Victims are provided a
right to “full and timely restitution as provided in law” pursuant to the CVRA. 18
U.S.C. § 3771(a)(6). The MVRA provides for restitution “when sentencing a
defendant.” 18 U.S.C. § 3663A(a)(1); see also § 3663A(c)(1) (“This section shall
apply in all sentencing proceedings....”). The right to “full and timely restitution”
attaches at the defendant’s sentencing hearing, where the district court may order
restitution after considering the presentence report and other documentation or
testimony. See 18 U.S.C. § 3664. Because DiFrancesco’s sentencing is still
pending, petitioner is not currently entitled to restitution. Moreover, the district

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court has invited petitioner to renew its request for restitution in connection with
DiFrancesco’s sentencing hearing. See May 29, 2013 Transcript at 24.
Because petitioner’s claim is unripe, we decline to consider the merits of
petitioner’s claims to restitution. Accordingly, the petition for a writ of mandamus
is denied.
DENIED.

FILED
JUN 19 2013
MOLLY C. DWYER, CLERK

HAWKINS, Circuit Judge, concurring:

U .S. C O U R T OF APPE ALS

While I agree it is appropriate to refuse mandamus relief on prematurity
grounds, I would go further and deny the petition on the merits. Regardless of
whether Petitioner is entitled to restitution from the defendant in this case, the
relief it seeks here -- an order directing the U.S. Attorney to seize assets and a
criminal forfeiture against the I.R.S. -- pertains only to third parties. Among a
number of flaws in the petition, the authorities Petitioner relies upon, quite
logically, apply only to restitution or forfeiture from criminal defendants. See 18
U.S.C. § 3663A(b) (“[t]he court shall order . . . that the defendant make restitution
to the victim of the offense”) (emphasis added); Fed. R. Crim. P. 32.2(a) (requiring
that the government provide “notice to the defendant” in the indictment or
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information that it will seek the forfeiture of property) (emphasis added). Absent
authority to order the seizure of assets from, or criminal forfeiture against, third
parties, this court simply cannot grant the relief Petitioner seeks.

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Counsel Listing
Kenneth P. Childs, Stake Center Locating, Inc., for Petitioner.

Elizabeth Olson White, Appellate Chief and Assistant U.S. Attorney, District of
Nevada, for Real Party in Interest United States of America.

Mark B. Bailus, Bailus Cook & Kelesis, Ltd., for Real Party in Interest Deborah
DiFrancesco.

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