United States v. Mindel

80 F.3d 394, 96 Daily Journal DAR 3962, 96 Cal. Daily Op. Serv. 2331, 1996 U.S. App. LEXIS 6555, 1996 WL 157207
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 5, 1996
DocketNo. 94-50562
StatusPublished
Cited by54 cases

This text of 80 F.3d 394 (United States v. Mindel) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mindel, 80 F.3d 394, 96 Daily Journal DAR 3962, 96 Cal. Daily Op. Serv. 2331, 1996 U.S. App. LEXIS 6555, 1996 WL 157207 (9th Cir. 1996).

Opinion

HUG, Chief Judge:

In this case, we must decide whether a crime victim has standing to challenge a district court’s order rescinding criminal restitution payments being made under the Victim & Witness Protection Act, 18 U.S.C. § 3663 [396]*396et seq. (“VWPA”). Because we hold that a crime victim lacks standing to appeal the district court’s order or to petition this court for mandamus review, we do not address the merits of this case. We, therefore, dismiss.

I. Statement of Facts

In 1988, defendant David Mindel was charged in a fifteen-count indictment for mail fraud and conspiracy to commit mail fraud, in violation of 18 U.S.C. §§ 371 and 1341, arising from Mindel’s marketing of precious metals. Mindel entered nolo contendré pleas to all fifteen counts.

At the same time, a group of victims, represented by attorney Vin Fichter (“Fichter Group”), had brought two civil actions1 against Mindel relating to these same activities. On December 3, 1990, Mindel entered into a written settlement agreement with the Fichter Group, in which Mindel agreed to pay $780,000 to dispose of these claims. The settlement provided for an immediate payment of $535,000 from Mindel to the Fichter Group with the remaining $245,000 to be paid in twenty quarterly installments of $12,250. To protect against Mindel’s default on the agreement, the settlement also provided for a portion of stock and property to be held as security.

On December 21, 1990, the district court sentenced Mindel to fifteen months imprisonment on Count One, and suspended sentencing on Counts Two through Fifteen, instead placing Mindel on five years probation. The district court also required Mindel to make the following restitution payments pursuant to the VWPA: the sum of $780,000 to the Fichter Group, and a total of $60,000 to four other victims not represented by Fichter. On May 2, 1991, the district court filed an amended judgment expressly incorporating the written settlement agreement into the criminal restitution order.

Mindel failed to meet his restitution obligations, and the Fichter Group foreclosed on the security. On May 27, 1993, Mindel filed a motion to modify the restitution order. He asserted that by exhausting the security, the Fichter Group had elected their remedy under the settlement. In hearings following this motion, the district court found that Mindel had already paid $535,000 to the Fichter Group, that Mindel’s ability to pay had substantially decreased since the time of the original order, and that Mindel’s inability to pay was partly the result of attorney Fichter’s overreaching.

In September 1994, the district court entered an order modifying the original restitution order by rescinding Mindel’s obligation to make any further payments to the Fichter Group. The Fichter Group appeals the district court’s order and asks that we either reverse or issue a writ of mandamus ordering that the restitution payments resume.

II. Standing

The Fichter Group argues that they have standing to challenge the district court’s order. The Government argues that the Fichter Group, as the beneficiary of the criminal restitution order made pursuant to the VWPA, does not have standing to pursue this appeal. We agree with the latter.

Standing involves both constitutional requirements and prudential limitations. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 2135-36, 119 L.Ed.2d 351 (1992). The constitutional requirements are derived from Article III, Section 2, Clause 1 of the United States Constitution, and the prudential limitations are rules of judicial self-governance. Id.

A. Constitutional Requirements

To meet “ ‘the irreducible constitutional minimum of standing,’ ” Lujan, 504 U.S. at 560, 112 S.Ct. at 2136, the Fichter Group must show three things:

First, the [Fichter Group] must have suffered an “injury in fact” — -an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as [397]*397opposed to merely speculative, that the injury will be redressed by a favorable decision.

United States v. Hays, 515 U.S. -, -, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635, 642 (1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)).

In the present case, the “irreducible minimum” standing inquiry turns on whether the Fichter Group has suffered “injury in fact.” The issue of whether beneficiaries of criminal restitution orders have suffered “injury in fact” because of the rescission of such orders is a question of first impression for this circuit.

The Eleventh Circuit, however, has considered this issue and has held that crime victims do not have standing to appeal a district court’s rescission of a criminal restitution order. See United States v. Johnson, 983 F.2d 216, 217 (11th Cir.1993). Distinguishing the divergent interests of victims from those of the Government-the former’s being compensatory, while the latter’s penal-the Eleventh Circuit determined that a restitution order serves a penal rather than a compensatory purpose. Id. at 220. Thus, the victims had not suffered “injury in fact,” and therefore did not have standing to appeal the district court’s rescission order.2 Id. at 219-20.

The Fichter Group attempts to distinguish Johnson. The group asserts that because the district court incorporated the civil settlement agreement into the criminal restitution order, the order afforded standing to the Fichter Group. We are unpersuaded. We have previously recognized that the policy of criminal restitution is penal and not compensatory. United States v. Cloud, 872 F.2d 846, 854 (9th Cir.), cert. denied, 493 U.S. 1002, 110 S.Ct. 561, 107 L.Ed.2d 556 (1989). We agree with the decision of the Eleventh Circuit in Johnson and hold that the Fichter Group has not suffered “injury in fact.” Johnson, 983 F.2d at 219-20. And while the Fichter Group still retains the right to seek enforcement of the settlement against Mindel in a civil proceeding, this does not provide them with standing in this criminal action. See Hays, — U.S. at -, 115 S.Ct. at 2434-35, 132 L.Ed.2d at 642. Thus, the Fichter Group has not met the “irreducible minimum” standing requirement.

B. Prudential Limitations

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Bluebook (online)
80 F.3d 394, 96 Daily Journal DAR 3962, 96 Cal. Daily Op. Serv. 2331, 1996 U.S. App. LEXIS 6555, 1996 WL 157207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mindel-ca9-1996.