In re: Stake Center Locating, Inc., No. 13-73267 (9th Cir. 2013)

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Stake Center petitioned for a writ of mandamus reversing the district court's denial of its motion for forfeiture under The Crime Victims' Rights Act (CVRA), 18 U.S.C. 3771. Stake Center moved the district court to compel the government to institute criminal forfeiture proceedings against Stake Center's former employee, who was charged with crimes stemming from her embezzlement of funds from Stake Center and others, and to obtain property traceable to the employee's crimes. The court concluded that the district court did not abuse its discretion or commit legal error in denying Stake Center's motion for forfeiture where the CVRA and Mandatory Victim Restitution Act (MVRA), 18 U.S.C. 3663A(a)(1), gave victims a right to restitution, not a right to criminal forfeiture. The court also concluded that the district court did not err in declining to order the U.S. Attorneys' Office to commence criminal forfeiture proceedings against the IRS and other non-parties alleged to possess assets implicated in the employee's criminal activities. Accordingly, the court denied the petition for writ of mandamus.

Court Description: Criminal Law. A motions panel issued a per curiam opinion denying a crime victim’s petition for a writ of mandamus seeking reversal of the district court’s denial of the victim’s motion for forfeiture under the Crime Victims’ Rights Act. The panel explained that the Crime Victims’ Rights Act and the Mandatory Victim Restitution Act give victims a right to restitution, not a right to criminal forfeiture. The panel also explained that the Crime Victims’ Rights Act expressly does not impair the government’s broad discretion to seek forfeiture of assets implicated in an offender’s wire fraud.

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN RE: STAKE CENTER LOCATING, INC., Crime Victim. STAKE CENTER LOCATING, INC., Petitioner, v. No. 13-73267 D.C. No. 2:13-cr-00089JCM-GWF-1 OPINION 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 to the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding 2 IN RE: STAKE CENTER LOCATING, INC. Submitted September 20, 2013* Filed September 26, 2013 Before: A. Wallace Tashima, Milan D. Smith, Jr., and Sandra S. Ikuta, Circuit Judges. Per Curiam Opinion SUMMARY** Criminal Law A motions panel issued a per curiam opinion denying a crime victim s petition for a writ of mandamus seeking reversal of the district court s denial of the victim s motion for forfeiture under the Crime Victims Rights Act. The panel explained that the Crime Victims Rights Act and the Mandatory Victim Restitution Act give victims a right to restitution, not a right to criminal forfeiture. The panel also explained that the Crime Victims Rights Act expressly does not impair the government s broad discretion to seek forfeiture of assets implicated in an offender s wire fraud. * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. IN RE: STAKE CENTER LOCATING, INC. 3 COUNSEL Kenneth P. Childs, Stake Center Locating, Inc., Salt Lake City, Utah, for Petitioner. Elizabeth Olson White, Appellate Chief and Assistant United States Attorney, District of Nevada, Reno, Nevada, for Plaintiff-Real Party in Interest. Mark B. Bailus, Bailus Cook & Kelesis, Ltd., Las Vegas, Nevada, for Defendant-Real Party in Interest. OPINION PER CURIAM: Petitioner Stake Center Locating, Inc. ( Stake Center ) petitions for a writ of mandamus reversing the district court s denial of its motion for forfeiture under 18 U.S.C. § 3771, the Crime Victims Rights Act ( CVRA ).1 In the underlying criminal action, Deborah DiFrancesco, a former employee of Stake Center, was charged with crimes stemming from her embezzlement of funds from Stake Center and other victims, and pleaded guilty to one count of tax evasion and three counts of wire fraud. Pursuant to her plea agreement, DiFrancesco agreed to make restitution to Stake 1 Stake Center previously petitioned this court for mandamus, and we denied this petition as premature. See Stake Ctr. Locating, Inc. v. U.S. Dist. Court (In re Stake Ctr. Locating, Inc.), 717 F.3d 1089, 1090 (9th Cir. 2013) (per curiam). The district court has now completed sentencing DiFrancesco, and Stake Center s renewed petition is properly before us. 4 IN RE: STAKE CENTER LOCATING, INC. Center in the amount of $763,846. Stake Center moved the district court to compel the government to institute criminal forfeiture proceedings and to obtain property allegedly traceable to DiFrancesco s crimes and thus subject to forfeiture from third parties. The district court denied this motion. We have jurisdiction under 18 U.S.C. § 3771(d)(3). In reviewing a CVRA mandamus petition, we need not balance the usual factors under Bauman v. United States District Court, 557 F.2d 650, 654 55 (9th Cir. 1977), but rather 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). Here, the district court did not abuse its discretion or commit a legal error in denying Stake Center s motion for forfeiture. First, the CVRA and Mandatory Victim Restitution Act ( MVRA ) give victims a right to restitution, not a right to criminal forfeiture. The CVRA provides that a crime victim has the right to full and timely restitution as provided in law. 18 U.S.C. § 3771(a)(6). The Mandatory Victim Restitution Act ( MVRA ) requires that a defendant make restitution to the victim of certain offenses. 18 U.S.C. § 3663A(a)(1). Criminal forfeiture is not, as petitioner contends, a type of restitution; [c]riminal forfeiture is . . . separate from restitution, which serves an entirely different purpose. United States v. Newman, 659 F.3d 1235, 1241 (9th Cir. 2011). Among other differences between restitution and forfeiture, only the criminal defendant is subject to restitution, not third parties. See 18 U.S.C. § 3663A(a)(1), (b)(1) (requiring that defendant make restitution and defendant return property). IN RE: STAKE CENTER LOCATING, INC. 5 Nor did the district court err in declining to order the U.S. Attorneys Office to commence criminal forfeiture proceedings against the Internal Revenue Service and other non-parties alleged to possess assets implicated in DiFrancesco s criminal activities. Contrary to Stake Center s argument, forfeiture is mandatory for wire fraud only if the government exercises its discretion to seek such forfeiture. See 28 U.S.C. § 2461(c); Fed. R. Crim. P. 32.2(a); United States v. Liquidators of European Fed. Credit Bank, 630 F.3d 1139, 1144 (9th Cir. 2011) (describing procedure for forfeiture). [T]he Government retains broad discretion as to whom to prosecute. Wayte v. United States, 470 U.S. 598, 607 (1985) (quotation omitted). The CVRA expressly does not impair that broad discretion. See 18 U.S.C. § 3771(d)(6) ( Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction. ).2 Accordingly, Stake Center s petition for writ of mandamus is denied. DENIED. 2 Because we decide this issue on these grounds, we do not reach the other arguments advanced by the government why forfeiture proceedings cannot be commenced in this case.

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