RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Perry No. 01-4265 ELECTRONIC CITATION: 2004 FED App. 0075P (6th Cir.) File Name: 04a0075p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Karen Kelly Grasso, THOMPSON HINE, FOR THE SIXTH CIRCUIT Cleveland, Ohio, for Appellant. Christian H. Stickan, _________________ ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, Frank J. Witschey, WITSCHEY & WITSCHEY, UNITED STATES OF AMERICA , X Akron, Ohio, for Appellees. ON BRIEF: Karen Kelly Plaintiff-Appellee, - Grasso, Robert M. Gippin, THOMPSON HINE, Cleveland, - Ohio, for Appellant. Christian H. Stickan, ASSISTANT - No. 01-4265 UNITED STATES ATTORNEY, Cleveland, Ohio, Frank J. v. - Witschey, WITSCHEY & WITSCHEY, Akron, Ohio, for > Appellees. , ANTHONY P. PERRY , - Defendant-Appellee, - CLAY, J., delivered the opinion of the court, in which DUGGAN, D. J., joined. GIBBONS, J. (pp. 36-43), delivered - a separate dissenting opinion. v. - - _________________ - TRYLLOUS HOSSLER, - OPINION Intervenor-Appellant. - _________________ N Appeal from the United States District Court CLAY, Circuit Judge. Intervenor Tryllous Hossler appeals for the Northern District of Ohio at Akron. a November 5, 2001 order vacating a judgment lien, entered No. 01-00017—Dan A. Polster, District Judge. by the United States District Court for the Northern District of Ohio, after Intervenor filed a judgment lien pursuant to 18 Argued: April 30, 2003 U.S.C. § 3664(m)(1)(B) of the Mandatory Victims Restitution Act (“MVRA”), against an Ohio property belonging to Decided and Filed: March 10, 2004 Defendant Anthony Perry. This transaction occurred after Perry pleaded guilty to various counts related to a securities Before: CLAY and GIBBONS, Circuit Judges; fraud scheme and the court ordered restitution to his victims, DUGGAN, District Judge.* including Intervenor. For the reasons set forth below, we VACATE the order releasing Intervenor’s judgment lien. * The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of Michigan, sitting by designation.

1 No. 01-4265 United States v. Perry 3 4 United States v. Perry No. 01-4265

FACTS AND PROCEDURAL HISTORY contract failed to close, the asset purchase agreement would fail to close as well.1 On January 25, 2001, Defendant Anthony Perry pleaded guilty to three counts related to securities fraud. The court Perry’s civil attorney then moved to release Intervenor’s sentenced Perry to a two-year prison sentence and ordered lien on behalf of the other victims.2 In findings and orders Perry to make restitution in the amount of $715,078.40 to his dated October 25, 2001, and November 5, 2001, the district victims. Intervenor, a ninety-one year -old woman, is one of court granted the motion and vacated the lien. Intervenor Perry’s victims. The restitution order required Perry to filed her notice of appeal on November 28, 2001. reimburse her $92,000. The district court, however, ordered Perry to make all payments to the clerk’s office so that the After the district court vacated the lien, the land contract clerk could “forward the money to victims pro rata until the and asset purchase agreement closed. Perry turned the full amount is paid.” $45,000 he received over to the district court, which disbursed the money proportionately to all investors, including David Bettiker, Donna Bettiker, James A Bruggeman, Intervenor. Henry Bruno, Mary Bruno, Wilma R. Cottrell, Lloyd P. Greenlese, Dorothy A. Nicolard, Donald L. Nicolard, Thomas On December 28, 2001, the government moved to dismiss W. Ozbolt, Julia A. Ozbolt, Robert Serpentini, Amelia the appeal for want of jurisdiction, arguing that Intervenor Serpentini, Jayne L. Simo, Arnold W. Stanley, Carl lacked standing to appeal the district court’s order and that Weisenbach, Eleanor M. Weisenbach, and Russell E. Intervenor’s appeal was untimely. Intervenor opposed the Workman (collectively, the “Perry Investors”) are also motion. On February 4, 2002, we ordered the parties to victims included in the restitution order. The Perry Investors address both the standing and timeliness issues in their briefs. appear before us as Appellees. DISCUSSION The restitution order did not specify an order of priority among the victims. Pursuant to the Mandatory Victims Before reaching the merits, we must consider whether (1) Restitution Act (MVRA), 18 U.S.C. § 3664(m)(1)(B), we lack jurisdiction because of Intervenor’s allegedly Intervenor obtained a judgment lien on Perry’s Wadsworth, untimely filing; or (2) Intervenor lacks standing to prosecute Ohio, real property. She recorded the lien in Medina County, this appeal. Ohio, on August 7, 2001. In September of 2001, Perry entered into a land contract 1 and asset purchase agreement with Dawn and Boyd Ferrebee, Interveno r’s counsel notes that Interveno r proposed, by letter, that prospective buyers of the Wadsworth property. Perry owns she transfer her lien to the district court’s fund so that Perry could close the sale, after which they would resolve the legal issue of Intervenor’s a corporation as well, and Perry also planned to sell the priority. The Perry Investors refused her offer. business’ assets to the Ferrebees as well in an asset purchase agreement that would close with the closing of the land 2 As discussed further below, Perry’s civil attorney seems to have a contract. The closing of the asset purchase agreement was significant conflict of interest because he represe nts both Perry and his contingent on the purchase of the land contract. If the land victims. One suspects that the Perry Investors would have avoided many of the unusual problems this case presents had they followed Intervenor and secure d independent counsel. No. 01-4265 United States v. Perry 5 6 United States v. Perry No. 01-4265

I. Appellees claim that Intervenor’s appeal falls under Fed. R. App. P. 4(b), which would make her notice of appeal thirteen We independently ascertain our own jurisdiction. United days late. States v. True, 250 F.3d 410, 418 (6th Cir. 2001). A timely notice of appeal “is both a mandatory and a jurisdictional This is not an ordinary appeal from a criminal judgment prerequisite.” United States v. Christunas,126 F.3d 765, 767 because it involves a civil matter initiated by a third party. (6th Cir. 1997). Fed. R. App. P. 4(b)(1)(A) states that “[i]n a criminal case, a defendant’s notice of appeal must be filed in the district court Intervenor filed her notice of appeal twenty-three days after within 10 days.” (emphasis added). Intervenor was not the the district court vacated her lien. Appellees make a defendant below, and Fed. R. App. P. (4)(b) makes no halfhearted attempt to argue that Intervenor filed her notice of provision for other parties.3 appeal late. Fed. R. App. P. 4(a) provides: In this and other circuits, 4(a) governs civil-type appeals in (1) Time for Filing a Notice of Appeal. criminal cases. See, e.g., United States v. Hayman, 342 U.S. 205, 209 n.4 (1952) (noting motions to set aside or correct (A) In a civil case, except as provided in Rules criminal sentences are civil actions for purposes of Fed. R. 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal App. P. 4); United States v. Wade, 255 F.3d 833, 839 (D.C. required by Rule 3 must be filed with the district Cir. 2001) (holding petition for attorney fees filed by court within 30 days after the judgment or order intervenors in federal criminal abatement proceeding was a appealed from is entered. “civil case,” rather than a “criminal case,” for purpose of determining time limits for taking appeal) (citing In re 1997 (B) When the United States or its officer or agency is Grand Jury, 215 F.3d 430, 433-36 (4th Cir. 2000)); Palma v. a party, the notice of appeal may be filed by any United States, 228 F.3d 323, 325 (2d Cir. 2000) (finding party within 60 days after the judgment or order timely government appeal after fifty-six days of the lower appealed from is entered. court’s decision, in a criminal proceeding, to restore defendant’s firearms privileges); United States v. Truesdale, Fed. R. App. P. 4(a) covers civil proceedings. In contrast, 211 F.3d 898, 904 (5th Cir. 2000) (holding action to recover Fed. R. App. P. 4(b) provides less time for criminal appeals: attorneys fees arising out of a criminal matter is not part of (1) Time for Filing a Notice of Appeal: the underlying criminal case, making Fed. R. App. P. 4(b) applicable); United States v. Means, 133 F.3d 444, 450 (6th (A) In a criminal case, a defendant’s notice of appeal must be filed in the district court within 10 days after the later of: 3 The Tenth Circ uit is the lone exception. In United States v. Robbins, 179 F.3d 1268, 12 70 (10th Cir. 1999), the court found that Fed. R. App. (i) the entry of either the judgment or the order P. 4(b) governs civil appeals for attorneys’ fees arising out of criminal being appealed; or proceedings. Other circuits have directly attacked Robbins. See United States v. Wade, 255 F.3d 833, 839 n.5 (D.C. Cir. 2001) (rejecting Robbins because it “provides little analysis” and lacks “any persuasive power”); (ii) the filing of the government’s notice of appeal. In re 199 7 Gra nd Ju ry, 215 F.3d 430, 435 (4th Cir. 2000) (rejecting Robbins beca use of its “conclusory rationale”). No. 01-4265 United States v. Perry 7 8 United States v. Perry No. 01-4265

Cir. 1998) (finding defendant had sixty days to appeal the 1. denial of his motion to consolidate his original criminal proceedings with his motion to vacate his sentence filed The new law unquestionably reflects a dramatically more pursuant to 28 U.S.C. § 2255); United States v. Taylor, 975 “pro-victim” congressional attitude; unlike its predecessor, F.2d 402, 403 (7th Cir. 1992) (“[M]any appealable orders restitution is mandatory rather than discretionary for technically ‘in’ criminal cases look more civil than defendants convicted of certain offenses. See 18 U.S.C. criminal—from the return of bond money to motions under §§ 3663A(a)(1) (“Notwithstanding any other provision of 28 U.S.C. § 2255 that parallel the civil petition for a writ of law, when sentencing a defendant convicted of an offense habeas corpus.”); United States v. Martinson, 809 F.2d 1364, described in subsection (c), the court shall order . . . that the 1367 (9th Cir. 1987) (treating motions for return of property defendant make restitution to the victim of the offense or, if pursuant to Federal Rule of Criminal Procedure 41(e) as civil the victim is deceased, to the victim's estate.”). But see id. at equitable proceedings even though brought under the rules of § 3663A(c)(3) (describing very limited circumstances, not criminal procedure). Thus, although the judgment lien is applicable to this case, in which the district court may refrain related to a criminal proceeding, 4(a) applies to Intervenor’s from ordering restitution). Also unlike the VWPA, district appeal because a dispute over a lien is more appropriately courts may no longer consider a defendant's financial classified as “civil-type” litigation. circumstances when determining the amount of restitution to be paid. Id. at § 3664(f)(1)(A) (“In each order of restitution, II. the court shall order restitution to each victim in the full amount of each victim’s losses as determined by the court and We next consider Intervenor’s standing. We find that she without consideration of the economic circumstances of the has standing under both the the MVRA and Article III. defendant.”). The MVRA thus made restitution mandatory and creates a greater basis for victim self-help. See 18 U.S.C. A. § 3663(a)(1), (a)(3). Most pertinent here—and also unlike the VWPA—the new law allows victims to obtain judgment liens The Victim and Witness Protection Act (“VWPA”), as based on restitution orders. Id. at § 3664(m)(1)(B). amended in 1996 by the Mandatory Victims Restitution Act, provides a framework enabling victims of certain crimes to Significantly, the MVRA also has its own legislative receive compensation from the perpetrators. See 18 U.S.C. history. As the Senate Judiciary Committee explained: §§ 3363-64. The VWPA, as modified by the MVRA, allows victims named in restitution orders to obtain and register a This provision [the MVRA] is intended by the committee judgment lien on the defendant’s property that then operates to clarify that the issuance of a restitution order is an as a lien on the property under state law. Id. at integral part of the sentencing process that is to be §§ 3664(m)(1)(B), (d)(2)(A)(v). The law does not provide governed by the same, but no greater, procedural any limits on the victim’s ability to obtain a judgment lien protections as the rest of the sentencing process. . . . The and it provides no express means by which a district court can committee believes that this provision fully comports alter a victim’s lien rights post hoc. with the requirements of the due process clause of the fifth amendment. . . . [T]he act . . . ensures the protection of the victim’s right to a fair determination of the restitution owed. The committee believes this provision No. 01-4265 United States v. Perry 9 10 United States v. Perry No. 01-4265

will ensure the streamlined administration of justice The MVRA provides that a lien against the defendant’s while at the same time protecting the rights of all property “shall be a lien on the property of the defendant individuals. located in such State in the same manner and to the same extent and under the same conditions as a judgment of a court S. REP. NO . 104-179, at 20-21 (1996), reprinted in 1996 of general jurisdiction in that State.” 18 U.S.C. U.S.C.C.A.N. 924, 933-34. This makes clear that Congress § 3664(m)(1)(B). In Ohio, judgment liens create property meant the MVRA to protect the rights of all individuals, interests, see Central Trust Co. v. Jensen, 616 N.E.2d 873, including victims, in a manner consistent with due process 877 (Ohio 1993), and the federal constitution prevents the requirements. As the subsequent paragraphs explore, the deprivation of these Ohio property interests without due heretofore unmentioned due process issue is an elephant in process, see Verba v. Ohio Cas. Ins. Co., 851 F.2d 811, 817 Appellees’ rather tiny room. (6th Cir. 1988). Therefore, once Intervenor obtained a valid lien under state law—a fact not disputed—she also obtained 2. a property right of constitutional magnitude. To the extent any ambiguity exists as to whether Intervenor At least limited to the facts Intervenor presents, interpreting has standing under the MVRA, we must follow the doctrine the MVRA as never authorizing non-party appeals would of constitutional doubt and “interpret statutes to avoid ‘grave create potentially significant due process problems. It is and doubtful constitutional questions.’” Pa. Dep’t. of Corr. unclear from the record precisely what process Intervenor v. Yeskey, 524 U.S. 206, 212 (1998) (citing United States ex received before the district court vacated her lien. She filed rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 papers in opposition to the motion to vacate her lien, but it (1909)). The government may not deprive people of property appears as though the Court did not hold a hearing. More interests without due process. See, e.g., United States v. importantly, the district court’s order vacating the lien does James Daniel Good Real Prop., 510 U.S. 43 (1993); FDIC v. not specify the law upon which the court relies. The order Mallen, 486 U.S. 230 (1988); Barry v. Barchi, 443 U.S. 55 just assumes plenary authority to vacate state law judgment (1979). At least since Louisville Joint Stock Land Bank v. liens. Radford, 295 U.S. 555 (1935), constitutionally protected property rights include the “right to retain [a] lien until the indebtedness thereby secured is paid.”4 Id. at 594. thereby is paid is a subs tantive property right which may not be taken 4 from the creditor consisten tly with the Fifth and Fourteenth Amendme nts See also Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798 to the Co nstitution.”); In re F ranklin, 210 B.R. 56 0, 565 (B ankr. (1983) (holding that "a mo rtgagee clearly has a leg ally protected property N.D.Ill. 1997) (“[I]it is a general requirement of constitutional due process interest," and so is "entitled to notice reaso nably calculated to apprise that a lienholder be given actual notice of any proceeding in which its lien him" of a proceeding that would have the effect of voiding that interest); may be lost.”); James Talcott Constr., Inc. v. P & D Land Enter., 862 Da vis Oil Co. v. M ills, 873 F.2d 7 74, 787 (5th Cir. 1989) (holding that P.2d 395, 397-98 (Mont. 1993) (“The right to retain a lien until the debt even though junior lien holder's mineral lease was terminated, as matter secured thereby is paid is a substantive property right. Therefore, the of Louisiana law, upon judicial sale of property pursuant to forec losure discharge of a lien amo unts to deprivation of a substantive property on mortgage superior to lease, junior lien holder was nevertheless entitled right.”) (internal citations omitted); In re U pset Sale, 479 A.2d 940, 944 to due process prior to termination of his interest in p roperty); Security- (Pa. 1984) (“As we read M ennonite Board of Missions v. Adams, due First Nat’l Bank of L.A. v. Rindge Land & Navigation Co., 85 F.2d 557, process requires protection of liens because they are property interests.”) 561 (9th C ir. 193 6) (“T he right to retain a lien until the debt secured (internal citation o mitted). No. 01-4265 United States v. Perry 11 12 United States v. Perry No. 01-4265

Orders issued without legal basis, conflicts of interest, and 1. generally mysterious conduct reflect exactly the sort of sloppy adjudication that a thorough district court proceeding, i.e., due Bryant v. Yellen, 447 U.S. 352 (1980), is a leading example process, is meant to avoid. Of course, it may be that nothing of a non-party appeal.5 Bryant involved a federal statute untoward occurred below. Process can vindicate superficially governing the allocation of irrigation waters in the West questionable behavior just as easily as it can uncover meant to benefit smaller farmers by restricting access to the impropriety in seemingly ordinary activity. We would raise water to farmers holding no more than 160 acres of land. Id. potentially serious due process issues by interpreting the at 368 n.19. The United States sued a California irrigation MVRA, when applied to this case, as not authorizing an agency to force it to comply with the federal statute. Id. at appeal so that this Court can determine whether the district 366. The district court found that the statute did not apply to court handled matters properly. Particularly in light of the certain lands in California, owned in parcels larger than 160 legislative history, it would make sense to read the statute in acres, that had vested rights to irrigation waters. Id. The a manner that will allow Intervenor to vindicate (or attempt to government did not appeal this decision. Id. Even though the vindicate) her constitutionally recognized property interest. government declined to appeal, the Supreme Court unanimously recognized the standing of a group of Our thesis is simple: A judgment lien is a constitutionally farmworkers to intervene and appeal the decision. Id. at 366- protected property right. That is undisputed. Congress may 68. The Court reached this conclusion because the not make a law that interferes with constitutionally protected intervenors “had a sufficient stake in the outcome of the property rights without that law being subjected to controversy to afford them standing to appeal.” Id. at 368. meaningful judicial scrutiny. We must interpret the provisions of the MVRA in a manner that avoids unwarranted In Linda R.S. v. Richard D., 410 U.S. 614 (1973), the Court constitutional problems. considered whether a non-party had standing to challenge the government’s decision to apply a law in a particular manner. B. Id. In Linda R.S., the appellant, the mother of an illegitimate child, sued to enjoin the local district attorney from failing to Article III affords standing to non-parties for the purposes prosecute the father for refusing to pay child support. Id. The of appeal in some circumstances. Yniguez v. Arizona, 939 district attorney generally prosecuted delinquent fathers of F.2d 727, 731 (9th Cir. 1991) (stating that “‘post -judgment intervention for purposes of appeal may be appropriate if the intervenors meet . . . traditional standing criteria’”) (quoting Legal Aid Soc’y of Alameda County v. Brennan, 608 F.2d 1319, 1328 (9th Cir. 1979).

5 Other repre sentative cases involving post-judgm ent appeals by non- parties include Un ited Airlines, Inc. v. M cDona ld, 432 U.S. 385, 395-96 & n. 16 (1977), Hodgson v. Un ited Mine Workers, 473 F.2d 118, 129 (D.C. Cir.19 72), Pellegrino v. Nesbit, 203 F.2d 463, 465 (9th Cir. 1953), United States Casualty Co. v. Taylor, 64 F .2d 5 21, 526-527 (4th Cir. 1933), and American Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co., 3 F.R .D. 162, 1 64 (S.D.N.Y . 194 2). No. 01-4265 United States v. Perry 13 14 United States v. Perry No. 01-4265

legitimate children but not those of illegitimate children. Id.6 2. The Supreme Court found the petitioner lacked standing, albeit in language that helps clarify the standing issues in this The Court decided Linda R.S. thirty years ago, and the case. See id. at 617-19. Court has since developed the “direct relationship” standing requirement into two more precise sub-requisites; The Court held that, “appellant has failed to allege a “redressability,” and “fairly traceable.” See, e.g., Whitmore sufficient nexus between her injury and the government v. Arkansas, 495 U.S. 149, 155 (1990); Simon v. E. Ky. action which she attacks to justify judicial intervention.” Id. Welfare Rights Org., 426 U.S. 26, 38 (1976). In its first use at 617-18. The Court conceded that the lack of child support of the specific phrase “fairly traceable,” the Supreme Court meant that appellant suffered an injury, but stressed that explained that standing requires that “the injury is indeed “‘[t]he party who invokes [judicial] power must be able to fairly traceable to the defendant's acts or omissions.” Village show . . . that he has sustained or is immediately in danger of of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. sustaining some direct injury as the result of [a statute’s] 252, 261 (1977) (citing, inter alia, Linda R.S., 410 U.S. at enforcement.’” Id. at 618 (citing Massachusetts v. Melon, 617). The Court has described “redressability” as the causal 262 U.S. 447, 488 (1923)) (emphasis added in Linda R.S.). connection between the injury and the relief sought. See The Court noted that the “appellant has made no showing that Allen v. Wright, 468 U.S. 737, 752 (1984) (explaining that her failure to secure support payments results from the redressability depends on whether “the prospect of obtaining nonenforcement” of the child support statute; rather, “if relief from the injury as a result of a favorable ruling is too appellant were granted the requested relief, it would result speculative”). only in the jailing of the child’s father. The prospect that prosecution will, at least in the future, result in payment of Ultimately, in Valley Forge Christian College v. Americans support can, at best, be termed only speculative.” Id. Thus, United for Separation of Church & State, Inc., 454 U.S. 464 the Court emphasized that the proposed remedy (arrest) (1982), the Supreme Court rearticulated its prior standing would not redress the injury (lack of child support). Stated decisions in a three-part test for standing: someone has differently, the injury (lack of child support) was not traceable standing if he or she (1) suffers and injury in fact that (2) is to the alleged impropriety (non-prosecution). As the Court fairly traceable to the alleged misconduct and (3) redressable concluded, “[c]ertainly the ‘direct’ relationship between the by the relief sought. Id. at 472; see also Allen, 468 U.S. at alleged injury and the claim sought to be adjudicated, which 751 (“A plaintiff must allege personal injury fairly traceable previous decisions of this Court suggest is a prerequisite to to the defendant's allegedly unlawful conduct and likely to be standing, is absent in this case.” Id. redressed by the requested relief.”) (citing Valley Forge, 454 U.S. at 472). The dissent cites four cases for the critical proposition that “[b]ecause restitution is part of criminal sentencing and is penal in nature, victims of crime do not suffer an ‘injury in fact’ when a district court modifies or terminates a restitution 6 Although the Lind a R.S. decision never reached the merits, the order.” Given that the Supreme Court has held that such Court recognized th e rights of illegitimate children three years later. abstract injuries as “aesthetic harm,” see United States v. See Matthew v. Lucas, 427 U.S. 495 , 506 (1967) (subjecting official SCRAP, 412 U.S. 669, 678 (1973), and “stigmatization,” see distinctions based o n legitimacy to intermed iate scrutiny). No. 01-4265 United States v. Perry 15 16 United States v. Perry No. 01-4265

Heckler v. Mathews, 465 U.S. 728, 739-40 (1984), qualify as MVRA.7 Schad relied largely on the reasoning in both constitutionally cognizable injuries, it is hard to accept that an Mindel and Johnson, see Schad, 1998 WL 193129, *2, and inadequate restitution order (conceivably depriving someone Mindel primarily on Johnson, see Mindel, 80 F.3d at 397. of thousands of dollars) would not constitute an injury in fact Johnson, in turn, depends extensively on VWRA’s legislative when the statute has authorized restitution. If victims lack history, see Johnson, 983 F.2d at 220, which the MVRA has standing to challenge restitution orders, the justiciability now superseded. defect has much more to do with the redressability and “fairly traceable” prongs of the standing test than with a lack of an Notably, Johnson also gains support from Kelly v. injury in fact. Robinson, 479 U.S. 36 (1986), in which the Supreme Court held that restitution obligations imposed as probation First, the dissent cites United States v. Mindel, 80 F.3d 394 conditions are not dischargable in bankruptcy proceedings. (9th Cir. 1996), in which the defendant attempted to appeal See Johnson, 983 F.2d at 220. According to the Court: the district court’s decision to rescind a judgment it previously entered pursuant to the VWPA with regard to the The criminal justice system is not operated primarily for disposition of the defendant’s property. Id. at 395-96. Next, the benefit of victims, but for the benefit of society as a the dissent discusses United States v. Johnson, 983 F.2d 216 whole. Thus, it is concerned not only with punishing the (11th Cir. 1993), which involved a bank attempting to appeal offender, but also with rehabilitating him. Although the district court’s decision to rescind a restitution order restitution does resemble a judgment “for the benefit of” issued pursuant to the VWPA. Id. at 218. Third, the dissent the victim, the context in which it is imposed undermines references United States v. Schad, No. 97-5003, 1998 WL that conclusion. The victim has no control over the 193129, *1 (10th Cir. Apr. 22 1998), an unpublished order amount of restitution awarded or over the decision to that considered whether a victim could participate as a party award restitution. Moreover, the decision to impose to obtain a garnishment order. Id. at *1. Finally, the dissent restitution generally does not turn on the victim's injury, cites one of this Court’s unpublished Rule 34 orders, United but on the penal goals of the State and the situation of the States v. Curtis, No. 99-5574, 2000 WL 145183, *1 (6th Cir. defendant. Feb. 1, 2000). The order noted that “the victim, as a non- party to the criminal case, would not have standing to Kelly, 479 U.S. at 52. Although the Mindel/Johnson rationale challenge the restitution order.” Id. This standing remark uses the phrase “injury in fact,” the reasoning of these was entirely tangential to Curtis, which involved a opinions essentially tracks Kelly. As the Mindel Court defendant’s appeal of a district court order denying his argued: request to end interest charges on a restitution order. Id. Curtis did not involve a non-party. The Eleventh Circuit, however, has considered this issue and has held that crime victims do not have standing to From the outset, none of the cases cited involve the MVRA. appeal a district court's rescission of a criminal restitution Curtis never mentions the MVRA because Curtis has little to do with the present issue, and courts decided Mindel, 7 Johnson, and Schad before Congress implemented the Although the Tenth Circuit filed its Schad order in 19 98, after Congress enacted the MVRA, Schad involved a judgment issued pursuant to the VWPA and the Schad court analyzed that order under the VWPA. See 199 8 W L 19 312 9, at *1. No. 01-4265 United States v. Perry 17 18 United States v. Perry No. 01-4265

order. See United States v. Johnson, 983 F.2d 216, 217 As these cases mention, the VWPA does not guarantee the (11th Cir. 1993). Distinguishing the divergent interests of victim much; under the VWPA, the victim may have received victims from those of the Government—the former's less based on the offender’s financial circumstances, and the being compensatory, while the latter's penal—the victim had no right to receive anything at all. The VWPA Eleventh Circuit determined that a restitution order also did not afford victims much “ability to influence the serves a penal rather than a compensatory purpose. Id. at outcome.” Id. at 910. As Kelly explained, under the VWPA, 220. Thus, the victims had not suffered “injury in fact,” “the decision to impose restitution generally does not turn on and therefore did not have standing to appeal the district the victim's injury, but on the penal goals of the State and the court's rescission order. situation of the defendant.” 479 U.S. at 52. None of this is true anymore. 80 F.3d at 397. Another case observing that victims may not appeal restitution orders, United States v. Brown, 744 F.2d 3. 905 (2d Cir. 1984), uses language taken from Kelly almost verbatim: As explained in Section II(A), the MVRA makes restitution mandatory for victims of certain offenses. See 18 U.S.C. [T]hough the VWPA was intended to compensate the §§ 3663A(a)(1). Thus, the victims of many crimes now have victim, it does so in a manner distinct from the normal a right to restitution. Also unlike the VWPA, district courts functioning of a civil adjudication. A court imposing an may no longer consider a defendant's financial circumstances order of restitution is required to consider the defendant's when determining the amount of restitution to be paid. Id. at ability to pay. 18 U.S.C. § 3580(a). The victim may § 3664(f)(1)(A). The MVRA invites victims to participate in therefore be awarded less than full compensation solely the sentencing process through the United States Probation because of the offender's financial circumstances. Office.8 Id. at § 3664(d)(2). These changes reflect a more Furthermore, unlike a civil suit, the victim is not a party to a sentencing hearing and therefore has only a limited ability to influence the outcome. The victim cannot 8 That provision states: control the presentation of evidence during either the criminal trial or the sentencing hearing and is not even The probation officer shall, prior to submitting the presentence guaranteed the right to testify about the extent of his report under subsection (a), to the extent practicable— losses. Neither can he appeal a determination he deems (A) p rovid e notice to all identified victims of— inadequate. (i) the offense or offenses of which the defendant was convicted; Id. at 910. Since the cases holding that victims cannot appeal (ii) the amounts subject to restitution submitted to the restitution orders depend so heavily on the VWPA, the probation officer; differences between the VWPA and the MVRA help show (iii) the op portunity of the victim to submit information to the probation officer concerning the amount of the victim's why these older decisions do not preclude Intervenor from losses; appealing the district court’s elimination of her property (iv) the scheduled date, time, and place of the sentencing hearing; interest. (v) the availability of a lien in favor of the victim pursuant to subsection (m)(1)(B); and (vi) the opportunity of the victim to file with the probation officer a separate affidavit relating to the amount of the No. 01-4265 United States v. Perry 19 20 United States v. Perry No. 01-4265

fundamental shift in the purpose of restitution, as explained because a victim lacks the injury in fact required to appeal a in the MVRA’s legislative history. The new restitution restitution order, a victim must also lack the injury in fact scheme is not merely a means of punishment and required to appeal anything sufficiently related to a restitution rehabilitation, but an “attempt to provide those who suffer the order. This flimsy principle forms the core of the Appellees’ consequences of crime with some means of recouping the rationale for claiming Intervenor did not suffer an injury in personal and financial losses.” H.R. REP. NO . 104-16, at 5 fact. (1995). The issue, as the dissent frames it, is whether a litigant Each case the dissent cites, Mindel, Johnson, and Schad, suffers an injury in fact when a district court rescinds or involved the appeal of an order rescinding or modifying a modifies its own restitution order which formed the basis restitution order, not an order vacating a constitutionally from which the litigant had secured a state court judgment cognizable property interest.9 See Mindel, 80 F.3d at 395-96; lien. Even assuming, however, the dissent is correct in its Johnson, 983 F.2d at 218; Schad, 1998 WL 193129, *1. view of the scope of the district court’s order, Intervenor has Essentially, both the government and the dissent reason that undoubtedly suffered an injury in fact because the district court vacated Intervenor’s property interest after it had been secured by the judgment lien. See Valley Forge Christian victim's losses subject to restitution; and Coll., 454 U.S. at 472; Verba, 851 F.2d at 811. Standing looks at whether the challenged conduct (vacating the (B) provide the victim with an affidavit form to submit pursuant to judgment lien) is the cause of her injury, and whether the subparagraph (A)(vi). relief requested (restoring the lien) would redress the injury. 18 U .S.C. § 366 4(d)(2). Standing measures the distance between the Intervenor’s demand and the problem’s source, and Intervenor’s demand 9 The only case to discuss victims’ appellate rights under the MVRA and the problem’s solution, but not the connection between is United States v. Kemp, 938 F.Supp. 1554 (N.D.Ala. 1996). The Kemp Intervenor’s demand and elements of Perry’s trial and court wrote: sentencing that might be sine qua non of Intervenor’s complaint, but are not causa causans of her problem. W ho will complain to an appellate court when a victim does not get what he thinks the MVRA calls for? The ac t makes no 4. attempt to remedy the defect in the VW PA which su rfaced in United States v. Johnson, 983 F.2d 216 (1 1th Cir. 1993), name ly, that a victim has no standing to ap peal. The U.S. Attorney, By this point, one should recognize two serious problems overworked and with no m otivation whatsoever to take an with Appellees’ position. First, despite their attempt to appeal on behalf of a victim, will not do it. This fact has been characterize the inability to appeal a VWPA restitution order proven emp irically, because, as previously stated, no U.S. as a result of an inadequate injury in fact, the “fairly Attorney has ever appealed from a denial of restitution or from traceable” and redressability portions of the standing analysis an order of restitution in a lesser amount than that claimed by a victim. offer a much more reasonable explanation for the inability to appeal a VWPA order. Second, Appellees are not seriously Id. at 1564 (emp hasis in origina l). Even assum ing this ana lysis is correct, contending that the deprivation of a constitutionally protected the case is d istinguishable because Kemp addresses the right to appeal a liberty interest is not a constitutionally cognizable injury; it is restitution order, whereas this case involv es the right to appeal an order also easy to show that Intervenor’s injury is fairly traceable to vacating a lien. No. 01-4265 United States v. Perry 21 22 United States v. Perry No. 01-4265

the order of which she complains and that a favorable ruling Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 156 from this Court would redress her injury. (1970); Dist. 2, Marine Eng’r Beneficial Ass’n v. Burnley, 936 F.2d 284, 286 (6th Cir. 1991). Beginning with the first issue, the VWPA made it difficult for victims to appeal restitution orders because their claimed The “zone of interest” test focuses on Congressional intent. injuries, inadequate restitution payments, were not fairly Clarke v. Securities Indus. Assoc., 479 U.S. 388, 399 (1987). traceable to purportedly unlawful conduct, nor necessarily The challenged statute is victims’ rights legislation that redressable by judicial action. As noted, under the VWPA, a expressly authorizes the disputed judgment lien. Intervenor court did not have to award restitution. Restitution fell within has raised an issue within the MVRA’s “zone of interests.” the district court’s discretion, which meant that a decision to award restitution, or award arguably insufficient restitution, Prudential concerns also prohibit us from affording was not fairly traceable to any statutory violation. standing to parties that attempt to raise nothing more than Furthermore, one can plausibly claim that a restitution order abstract grievances better handled by the legislative or found insufficient by a victim could not be redressed executive branches, see, Colo. Taxpayers Union, Inc. v. judicially because, as the case law quoted above emphasized, Romer, 963 F.2d 1394, 1396 (10th Cir. 1992), S.J. Groves & the VWPA used restitution only as a punitive and Sons Co. v. Fulton County, 920 F.2d 752, 757 (11th Cir. rehabilitative tool, not a mechanism to partly recompense 1991), or from affording standing to parties attempting to victims. Thus, particular features of the VWPA assert the legal rights of third parties. See, e.g., United States scheme—features absent from the MVRA—explain the v. Raines, 362 U.S. 17, 22 (1960), Tileston v. Ullman, 318 decisions that deny standing to appeal a VWPA restitution U.S. 44, 46 (1943). Other circuits to have considered these order. issues have found that prudential concerns do not prevent a nonparty from appealing when that party participated in the Second, whether or not standing would exist for someone proceedings and the equities favor hearing the appeal.10 to appeal a restitution order under the MVRA, it definitely Commodity Futures Trading Comm'n v. Topworth Int'l, Ltd., exists for Intervenor to appeal an order destroying a protected 205 F.3d 1107, 1113 (9th Cir. 1999); Davis v. Scott, 176 F.3d property interest. Assuming the district court acted illegally in vacating Intervenor’s lien, her loss is “fairly traceable” to the district court’s order. A decision by this Court reversing 10 Although the parties refer to Tryllous Hossler as “Intervenor,” she the district court’s order would redress Intervenor’s injury. never formally intervened as one would do in a civil proceeding. A This is straightforward. requirement that a party either intervene or attempt to intervene seems inapp ropriate in this unusual case, because no mechanism exists for a 5. private citizen to intervene in a criminal case. Thus, we have not always required intervention. In CBS Inc. v. Young, 522 F.2d 234, 23 7 (6th Cir. Once one concludes that Intervenor has suffered an injury 1975), for instance, we allowed a news organization to appeal a “gag” in fact, fairly traceable to the wrong of which she complains order issued in a civil case even though the news organization was “neither a party to the litigation nor specifically enjoined by the order and redressable by the relief she seeks, courts must still from discussing the case.” As far as our Article III standing analysis is consider whether prudential concerns make an appeal concerned, it makes no difference that this is criminal case . See improper. This means that the alleged injury must fall within Associated Builders & Contractors v. Perry, 16 F.3d 688 , 692 (6th Cir. the “zone of interests” protected by the statute at issue. See 1994) (“In the context of standing, however, the crim inal versus civil distinction is a distinction witho ut a difference.”). No. 01-4265 United States v. Perry 23 24 United States v. Perry No. 01-4265

805, 807 (4th Cir. 1999); Krebs Chrysler-Plymouth, Inc. v. III. Valley Motors, Inc., 141 F.3d 490, 496 (3d Cir. 1998); Searcy v. Philips Elecs. N. Am. Corp., 117 F.3d 154, 157 (5th Because Intervenor has standing under both the MVRA and Cir. 1997); see also West v. Radio-Keith Orpheum Corp., 70 Article III itself, we proceed to consider the merits of her F.2d 621, 624 (2d Cir. 1934) (“The reason for [the party-only claim. Intervenor argues that the district court had no appeals doctrine] is that if not a party, the putative appellant authority to release her lien because the MVRA does not is not concluded by the decree, and is not therefore aggrieved provide such authority. Appellees counter that the court by it. But if the decree affects his interests, he is often below had the necessary authority under the All Writs Act, 28 allowed to appeal”) (L. Hand, J.). U.S.C. § 1651(a). Appellate courts review a district court's assertion of jurisdiction under the All Writs Act de novo. See, First, Intervenor participated in the proceedings below e.g., United States v. Bravo-Diaz, 312 F.3d 995, 997 (9th Cir. because she filed papers in opposition to Perry’s request that 2002); In re Prudential Ins. Co. of Am. Sales Practice Litig., the district court vacate her lien. Intervenor’s counsel also 261 F.3d 355, 363 (3d Cir. 2001). attended the original sentencing hearing. Second, equities favor permitting this appeal. There is a substantial question The All Writs Act provides that “[t]he Supreme Court and as to whether the district court had the authority to vacate the all courts established by Act of Congress may issue all writs lien because no MVRA provision specifically grants district necessary or appropriate in aid of their respective jurisdictions courts that right. Since Intervenor had an undisputed property and agreeable to the usages and principles of law.” 28 U.S.C. interest, the district court’s decision to revoke that interest § 1651. The All Writs Act enables federal courts to issue adversely affected Intervenor’s interests even though she did such commands “as may be necessary or appropriate to not participate as a party to the criminal proceeding. As effectuate and prevent the frustration of orders it has explained above, Intervenor proposed, by letter, that she previously issued in its exercise of jurisdiction otherwise transfer her lien to the district court’s fund to remove any obtained.” United States v. N.Y. Tel., 434 U.S. 159, 172 impediment to Perry’s attempt to sell his assets, after which (1977). The Supreme Court has also stressed, however, that the court would resolve the legal issue of Intervenor’s the All Writs Act does not authorize courts “to issue ad hoc priority. The victims, albeit represented by Perry’s counsel, writs whenever compliance with statutory procedures appears declined Intervenor’s offer. Nevertheless, Intervenor made an inconvenient or less appropriate.” Pa. Bureau of Corr. v. attempt to solve the problem. Equity favors permitting this United States Marshals Serv., 474 U.S. 34, 43 (1985). appeal. Finally, Intervenor is not attempting to raise some “Where a statute specifically addresses the particular issue at sort of generalized policy grievance nor does she seek to hand, it is that authority, and not the All Writs Act, that is litigate someone else’s rights. See, e.g., Raines, 362 U.S. at controlling.” Id. 22; Tileston, 318 U.S. at 46; Colo. Taxpayers Union, 963 F.2d at 1396; S.J. Groves, 920 F.2d at 757. A.

Intervenor thus meets both the prudential and constitutional Although Appellees cite two cases in which a court used requirements for Article III standing. the All Writs Act in connection with a restitution order, neither decision helps us much with respect to the issues the parties presently litigate. First, Appellees cite United States v. Friedman, 143 F.3d 18 (1st Cir. 1998). In Friedman, the No. 01-4265 United States v. Perry 25 26 United States v. Perry No. 01-4265

district court, pursuant to the All Writs Act, ordered the the victim lacked entitlement to the restitution award. Id. As defendant to liquidate certain assets and deliver the proceeds the court explained, “[d]espite the dearth of statutory to the Marshals Service, but only “after all secured claims, authority, it remains indisputable that [the victim] must repay liens, and other costs associated with the real estate closing the [defendant].” Id. Thus, the victim had no entitlement to are paid.” Id. at 20. Unisource, a company not a victim of the restitution, nor did the victim have a constitutionally- the defendant’s crimes, claimed to hold an equitable lien on recognized property right to the money. Neither Venneri nor the defendant’s property. Id. Unisource did not receive any Friedman addresses the situation presently before us. proceeds from the sale of the defendant’s assets, however, because the marshals confiscated the proceeds. Id. Unisource At first glance, the All Writs Act seems to authorize a then asked the district court for its share. Id. at 22. The district court to issue any subsequent order in furtherance of government argued that only victims may receive restitution, an initial order as long as the initial order was lawful. As one and that the court lacked authority under the VWPA to release would expect, however, even if a court properly issues its funds to Unisource stemming from the marshals’ seizure. Id. initial order, it may not use the All Writs Act to issue a The district court disagreed and paid Unisource. On appeal, subsequent order to effectuate the first order if the subsequent the First Circuit affirmed, finding that the court’s original order is itself unconstitutional. See, e.g., United States v. City order protected lien-holders and the All Writs Act gave the of New York, 972 F.2d 464, 470 (2d Cir. 1992) (“Nor can the court the authority to issue a further order to prevent the All Writs Act confer on the courts the power to ignore the frustration of its original order. Id. case or controversy requirement, which is rooted in Article III of the constitution's definition of judicial power.”); In re Other than the hopelessly vague proposition that district Baldwin-United Corp. (Single Premium Deferred Annuities courts may sometimes use the All Writs Act in relation to Ins. Litig.), 770 F.2d 328, 340 (2d Cir. 1985) (“The All-Writs restitution orders, it is unclear what Friedman tells us. Act . . . cannot be used to circumvent or supersede the Friedman has little to do with the scenario we presently constitutional limitations of the Eleventh Amendment.”). consider because no one argued in Friedman that the second This is consistent with the text of the All Writs Act, which order either conflicted with the VWPA or violated a only authorizes courts to issue writs “agreeable to the usages constitutional right. and principles of law.” 28 U.S.C. § 1651. “[A]greeable to the usages and principles of law” also suggests that courts Second, Appellees cite United States v. Venneri, 782 F. may not use the All Writs Act to issue a second order to Supp. 1091 (D. Md. 1991), in which a district court vacated effectuate an initial, lawful order if the second order works by a defendant’s conviction by writ of error coram nobis because violating some other statutory provision. the defendant was originally convicted pursuant to a statute later found unconstitutional. Id. at 1092. The defendant was B. originally ordered to pay restitution to one of his victims. Id. The court considered whether it had jurisdiction under the All This case involves two statutory provisions seemingly Writs Act to direct the victim to repay restitution to the operating in conflict. In its entirety, 18 U.S.C. 3664(m)(1)(B) defendant. Id. Although the court noted the lack of statutory states: authority for such an order, it found that the All Writs Act provided the necessary mechanism. Id. at 1094. Unlike the At the request of a victim named in a restitution order, present case, however, there was no dispute in Venneri that the clerk of the court shall issue an abstract of judgment No. 01-4265 United States v. Perry 27 28 United States v. Perry No. 01-4265

certifying that a judgment has been entered in favor of § 3664(f)(i). The MVRA never mentions pro rata such victim in the amount specified in the restitution distribution, but §§ 3664(f)(3)(A) and (i) appear to give trial order. Upon registering, recording, docketing, or courts the right to require reimbursement in that fashion. By indexing such abstract in accordance with the rules and definition, pro rata distribution means that no victim has requirements relating to judgments of the court of the priority, but a judgment lien is a device designed to give the State where the district court is located, the abstract of lien-holder priority. In this sense, the statutory provisions judgment shall be a lien on the property of the defendant appear to conflict.12 located in such State in the same manner and to the same extent and under the same conditions as a judgment of a C. court of general jurisdiction in that State. One of the most basic canons of statutory interpretation is This provision, which authorizes Intervenor’s lien, contains that a more specific provision takes precedence over a more no language giving the court any right to vacate a lien if it general one. See, e.g., Green v. Bock Laundry Mach. Co., conflicts with the restitution order. Title 18 U.S.C. 490 U.S. 504, 524 (1989) (stating that a general statutory rule § 3664(d)(2)(A)(v) references (m)(1)(B) by mandating that does not govern unless there is no more specific rule); “[t]he probation officer shall, prior to submitting the Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976) presentence report under subsection (a), to the extent (holding that the general venue provision of the Securities practicable . . . provide notice to all identified victims of . . . Exchange Act of 1934 does not trump the specific venue the availability of a lien in favor of the victim pursuant to provision of the National Bank Act); Y.S. v. Castro-Rocha, subsection (m)(1)(B).”11 323 F.3d 846, 851 (10th Cir. 2003) (“[A] fundamental canon of statutory interpretation holds that, when there is an Although the statute unambiguously allows victims to apparent conflict between a specific provision and a more impose judgment liens in accordance with state law, the general one, the more specific one governs, regardless of the statute gives sentencing courts significant flexibility to tailor priority of the provisions' enactment.”) (citing Cal. ex rel. restitution orders to particular circumstances. As 18 U.S.C. Sacramento Metro. Air Quality Mgmt. Dist. v. United States, § 3664(i) explains, “[a] restitution order may direct the 215 F.3d 1005, 1013 (9th Cir. 2000)). As the Supreme Court defendant to make a single, lump-sum payment, partial explained: payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind The reason and philosophy of the rule is, that when the payments.” The statute also clarifies that “[i]f the court finds mind of the legislator has been turned to the details of a that more than 1 victim has sustained a loss requiring subject, and he has acted upon it, a subsequent statute in restitution by a defendant, the court may provide for a general terms, or treating the subject in a general manner, different payment schedule for each victim based on the type and not expressly contradicting the original act, shall not and amount of each victim's loss and accounting for the be considered as intended to affect the more particular or economic circumstances of each victim.” 18 U.S.C.

12 11 Of course, had the district court structured an order that gave The record does not reveal whether this is how Intervenor learned Intervenor priority, as opposed to a pro rata distribution, no co nflict of her right to file a lien. would exist. No. 01-4265 United States v. Perry 29 30 United States v. Perry No. 01-4265

positive previous provisions, unless it is absolutely ascertain whether a construction of the statute is fairly necessary to give the latter act such a construction, in possible by which the question may be avoided.”); Hooper v. order that its words shall have any meaning at all. California, 155 U.S. 648, 657 (1895) (“The elementary rule is that every reasonable construction must be resorted to, in Radzanower, 426 U.S. at 153. order to save a statute from unconstitutionality.”); cf. Murray v. The Charming Betsy, 2 Cranch (6 U.S.) 64, 118 (1804) The MVRA expressly references a victim’s right to a (“[A]n act of Congress ought never to be construed to violate judgment lien on two occasions, see 18 U.S.C. the law of nations if any other possible construction §§ 3664(d)(2)(A)(v), (m)(1)(B), and, as recounted above, remains.”) (Marshall, C.J.). A construction that permits provides significant detail, see § 3664(m)(1)(B). In contrast, district courts to destroy constitutionally protected property the MVRA never mentions pro rata distribution. Rather, pro interests without due process violates this precept if another rata distribution is simply one alternative a court might adopt reasonable construction is “fairly possible.” Crowell, 285 under the highly general and flexible grants of authority in 18 U.S. at 62. U.S.C. §§ 3664(f)(3)(A) and (i). In accordance with the “specific over general” canon of statutory construction, we There is another “fairly possible” construction of the are more inclined to read the lien provision as an exception to statute. One might reasonably assume that Congress only the trial court’s general authority to structure restitution meant to allow states to record liens that reflect restitution orders, rather than assuming that the more vague powers orders, not liens that conflict with or exceed restitution orders. Congress granted in 18 U.S.C. §§ 3664(f)(3)(A) and (i) are an Consider again the language MVRA judgment lien provision, exception to the very precise lien provision. This suggests which states that, “[u]pon registering, recording, docketing, that federal courts do not have the authority to vacate an or indexing [the restitution order and judgment] in already-existing judgment lien based on their right to enforce accordance with the rules and requirements relating to MVRA orders under the All Writs Act. judgments of the court of the State where the district court is located, the [restitution order and judgment] shall be a lien on D. the property of the defendant located in such State.” 18 U.S.C. § 3664(m)1)(B) (emphasis added). The lien is then As already noted, the Supreme Court has made clear that recognized and handled “in the same manner and to the same we must construe statutes to avoid constitutional doubt when extent and under the same conditions as a judgment of a court it is reasonably possible to do so. DeBartolo Corp. v. Fla. of general jurisdiction in that State.” Id. It seems more than Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, “fairly possible” that Congress meant for victims to obtain 575 (1988) (defining the canon of constitutional doubt as one judgment liens in a manner that complied with the relevant that requires courts, “where an otherwise acceptable state’s procedure. construction of a statute would raise serious constitutional problems, . . . [to] construe the statute to avoid such problems No one can get a lien for more than the value of the unless such construction is plainly contrary to the intent of supporting judgment. Yet Ohio (perhaps erroneously) gave Congress”); Crowell v. Benson, 285 U.S. 22, 62 (1932) Intervenor such a lien, apparently without regard for the (“When the validity of an act of the Congress is drawn in underlying judgment and restitution order authorizing only question, and even if a serious doubt of constitutionality is pro rata distribution. Ohio may have erred, and Perry could raised, it is a cardinal principle that this Court will first have moved in the Ohio judiciary, rather than the federal No. 01-4265 United States v. Perry 31 32 United States v. Perry No. 01-4265

district court, to vacate or modify the lien. Such an action by invalidate a victim’s judgment lien and impose unsecured pro Perry protects the due process rights associated with the lien, rata distribution, then the MVRA would read as though the because under Ohio law, judgment liens receive constitutional provision granting victims the right to judgment liens did not protections, see Central Trust Co. v. Jensen, 616 N.E.2d 873, exist. Victims could obtain judgment liens only at the 876 (Ohio 1993), and a judgment by an Ohio state court sentencing court’s unlimited discretion. vacating a judgment lien is a final appealable order, see Roach v. Roach, 132 N.E.2d 742, 744 (Ohio 1957). This The proposed alternative discussed above—allowing interpretation of the law protects Intervenor’s due process victims to challenge an allegedly improper lien in state court rights and is “fairly possible” given the statutory language, rather than allowing a district court to invalidate it further suggesting that federal courts do not have the authority entirely—would not render the judgment lien provision to vacate an already-existing judgment lien based on their superfluous. At minimum, 18 U.S.C. § 3664(m)(1)(B) would right to enforce MVRA orders under the All Writs Act. compel state courts to approve judgment liens consistent with restitution orders to the extent allowed under state law, E. thereby giving the victim a security interest in the defendant’s property, even if (because of the restitution order’s language) We may not construe a statute in a manner that renders part that security interest is not permitted to rise above the of the law superfluous. See, e.g., Regions Hosp. v. Shalala, victim’s pro rata share. Thus, 18 U.S.C. § 3664(m)(1)(B) 522 U.S. 448, 467 (1998); United States v. Nordic Vill., Inc., would still serve a purpose. 503 U.S. 30, 36 (1992); Fed. Election Comm'n v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 486 The rule against surplusage further supports the conclusion (1985). More than a century ago, the Supreme Court that federal courts do not have the authority to vacate an explained: already-existing judgment lien based on their right to enforce orders under the All Writs Act. We are not at liberty to construe any statute so as to deny effect to any part of its language. It is a cardinal rule of F. statutory construction that significance and effect shall, if possible, be accorded to every word. As early as in Finally, Appellees argue that accepting Intervenor’s Bacon's Abridgment, sect. 2, it was said that 'a statute position would create a “race to the courthouse,” i.e., if ought, upon the whole, to be so construed that, if it can victims can obtain judgment liens despite a court order be prevented, no clause, sentence, or word shall be requiring pro rata distribution, then the victim fortunate superfluous, void, or insignificant.' This rule has been enough to file the first lien has the greatest chance of repeated innumerable times. recovery, and victims will have to compete for priority.

Wash. Market Co. v. Hoffman, 101 U.S. 112, 115-16 (1879). The MVRA is not optimally structured. Cf. United States Thus, any interpretation of the MVRA that makes one if its v. Locke, 471 U.S. 84, 95 (1984) (acknowledging that, for the provisions irrelevant is presumptively incorrect. statute under consideration, “Congress might have acted with greater clarity or foresight”); United States v. Jackson, 824 Appellees’ position, however, has exactly this effect. If one F.2d 21, 25 (D.C. Cir. 1987) (admitting that the statute under asserts that the district court always has the authority to consideration was “[l]amentably . . . not meticulously No. 01-4265 United States v. Perry 33 34 United States v. Perry No. 01-4265

drafted”). Regardless, the “race to the courthouse” is a far- IV. fetched concern. District courts have discretion to issue all sorts of orders that would interfere with the race to the Those who would disagree must demonstrate not just that courthouse: pure pro rata distribution, distribution to the the district court had the authority to issue an order altering neediest victims first, distribution to the most seriously (or revoking) a judgment lien, but that the order was injured first, pro rata within classes of victims, and so forth. substantively correct. See 18 U.S.C. §§ 3664(f)(3)(A) and (i). In all cases, victims who attempt to secure judgment liens beyond what the The All Writs Act only allows the district court to issue an sentencing court authorized should fail to have their liens order attempting to effectuate its earlier order. N.Y. Tel., 434 recognized by the state, and if the liens are recognized U.S. at 172. Therefore, assuming the district court had anyway, victims could attempt to vacate them in appropriate authority to vacate Intervenor’s judgment lien, that authority state court proceedings. Victims would not scramble to only extended to the part of Intervenor’s lien that violated the perfect liens that should not (and thus probably cannot) be court’s initial pro rata distribution order. Defendant owed perfected under state law, and would remain subject to Intervenor $92,000. Assume, hypothetically, that there were challenge.13 only two other victims: one (Victim A) owed $46,000, and another (Victim B) owed $138,000. Under pro rata The feared “race to the courthouse” is specious and three distribution, Victim A would receive approximately major canons of statutory construction suggest that a victim seventeen cents (one-sixth) of every dollar recovered, has a right to a secured interest in the defendant’s property Intervenor would receive approximately thirty-three cents despite other less precise statutory language that Appellees (one-third) of every dollar recovered, and Victim B would claim allows district courts to vacate judgment liens. A court receive fifty cents (one-half) of every dollar recovered. If, may not use the All Writs Act to issue a second order to continuing the hypothetical, Intervenor obtained a lien against enforce an initial order when the second order renders the defendant’s house for the full $92,000, that conflicts with statutory language superfluous and raises constitutional pro rata distribution. However, vacating the lien questions. Consequently, the district court did not have the completely—as the district court did in this case—also authority under the All Writs Act, 28 U.S.C. § 1651(a), to conflicts with pro rata distribution, because pro rata vacate Intervenor’s judgment lien. distribution would entitle Intervenor to one-third of anything recovered. Again assuming the All Writs Act affords the district court has the power to alter judgment liens, the court would only have the authority to modify the hypothetical Intervenor’s lien to the extent it would have entitled her to more than one-third of the defendant’s assets’ value. Although the math is much more complex in the case 13 Intervenor acquired a lien for an amount greater than her pro rata presently before us than the calculations in the hypothetical, interest but, as noted, Ohio may have erred and Perry can move to vacate the principle is exactly the same. The court below did not that lien in the Ohio courts. One might conceive of cases in which the merely vacate the portion Intervenor’s statutorily-authorized availab ility or function of state lien law creates problems, but this judgment lien that conflicted with the initial pro rata order, possibility is a matter only Congress can address by amending the statute. the district court vacated the entire judgment lien. Thus, the No. 01-4265 United States v. Perry 35 36 United States v. Perry No. 01-4265

second order actually exceeded the first order’s _________________ scope—assuming victims have any rights at all under the statute’s judgment lien provision, Intervenor had the right to DISSENT a judgment lien large enough to cover her pro rata share. In _________________ this sense, the order vacating the judgment lien did not correctly apply the All Writs Act authority Appellees JULIA SMITH GIBBONS, Circuit Judge, dissenting. I mistakenly believes the district court possesses. dissent because I believe that Hossler lacks standing to contest the district court’s order releasing her judgment lien. CONCLUSION The district court was enforcing the terms of its prior restitution order, which was entered at sentencing in a Both Appellees and the dissent misconstrue Intervenor’s criminal case in which Hossler was not a party. The two compelling arguments for standing, either one of which majority’s broad interpretation of the MVRA would allow provides sufficient basis for us to address the merits. With victims to appeal numerous decisions relating to the regard to the merits, the district court had no authority under enforcement of restitution orders and would lead to victims the All Writs Act to vacate Intervenor’s statutorily authorized participating in criminal proceedings in a manner that judgment lien. Anyone wishing to argue that the lien Congress never intended when it enacted the MVRA. Hossler conflicted with the district court’s pro rata order had the right has not been deprived of a constitutionally protected right to to dispute the lien in the Ohio courts. receive restitution; she has been deprived of the opportunity to enforce a restitution order in a manner that was contrary to For all the aforementioned reasons, we VACATE the order what was intended by the district court and in a way that releasing Intervenor’s judgment lien. harms the rights of Perry’s other victims to receive the restitution to which they are also entitled. Standing is a threshold issue in every case before a federal court. United States v. McVeigh, 106 F.3d 325, 334 (10th Cir. 1997). To establish standing, plaintiffs must show that “their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable.” Raines v. Byrd, 521 U.S. 811, 820 (1997) (emphasis added). Standing involves both constitutional requirements, which are based on the case or controversy clause in Article III, and prudential limitations, which are crafted by the courts. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992); McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003). “[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as No. 01-4265 United States v. Perry 37 38 United States v. Perry No. 01-4265

opposed to merely speculative, that the injury will be Prior to the MVRA’s enactment in 1996, courts redressed by a favorable decision.” Friends of the Earth, Inc. consistently held that victims did not have standing to appeal v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 a district court’s decision modifying or enforcing a restitution (2000) (citing Lujan, 504 U.S. at 560-61). Beyond the order. See Mindel, 80 F.3d at 397 (holding that beneficiary of constitutional requirements in Article III, “the federal criminal restitution order lacked standing to challenge judiciary has also adhered to a set of prudential principles that modification of sentence to rescind restitution order); United bear on the question of standing.” Valley Forge Christian States v. Johnson, 983 F.2d 216 (11th Cir. 1993). These Coll. v. Americans United for Separation of Church and courts have noted that while a criminal restitution order State, Inc., 454 U.S. 464, 474 (1982). One of these prudential resembles a judgment for the benefit of the victim, restitution requirements is that the interest of a plaintiff seeking standing is penal, not compensatory. Kelly v. Robinson, 479 U.S. 36, under a particular statutory provision must be “within the 52 (1986). Thus, “[t]he direct, distinct, and palpable injury in zone of interests protected by the law invoked.” United States a criminal sentencing proceeding plainly falls only on the v. Mindel, 80 F.3d 394, 397 (9th Cir. 1996) (quoting Allen v. defendant who is being sentenced . . . and he alone suffers the Wright, 468 U.S. 737, 751 (1984)). Under the zone of direct consequences.” Grundhoefer, 916 F.2d at 791; see also interests test, plaintiffs lack standing if their interests are “so Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (finding marginally related to or inconsistent with the purposes that a private citizen generally lacks standing “to contest the implicit in the statute that it cannot reasonably be assumed policies of the prosecuting authority when he himself is that Congress intended to permit the suit.” United States v. neither prosecuted nor threatened with prosecution”). Grundhoefer, 916 F.2d 788, 792 (2d Cir. 1990) (quoting Because restitution is part of criminal sentencing and is penal Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)). in nature, victims of crime do not suffer an “injury in fact” when a district court modifies or terminates a restitution The district court granted the Perry Investors’ motion to order. See Mindel, 80 F.3d at 397; Johnson, 983 F.2d at 221 vacate Hossler’s lien upon finding that the lien would give United States v. Schad, No. 97-5003, 1998 WL 193129, at *2 preferential treatment to Hossler. At sentencing, Perry (10th Cir. April 22, 1998) (holding that a crime victim lacked expressed a strong desire to make restitution, and his counsel standing to appeal the district court’s order terminating the described a plan for selling his property and liquidating his victim’s right to continue garnishing the defendant’s wages assets in order to pay his restitution obligations. The district pursuant to a criminal restitution order). court found that Perry’s restitution payments “should be made to the Clerk of Courts,” who would then “forward the money As the majority opinion notes, Mindel, Johnson, and Schad to the victims pro rata until the full amount is paid.” In all involved appeals from orders rescinding or modifying granting the Perry Investors’ motion to vacate Hossler’s restitution orders. In Johnson, for example, the district court judgment lien, the district court noted that its restitution order rescinded its prior restitution order when the defendant “unequivocally required that restitution be distributed to all became delinquent in her restitution payments that were the Perry Investors pro rata,” and concluded that Hossler’s supposed to be made to the victim bank in monthly lien “would give preferential treatment to only one of Perry’s installments. Id. at 218. The bank appealed the district numerous victims – which is plainly inconsistent [with the court’s order rescinding the restitution obligation, and the court’s prior restitution order].” For both constitutional and Eleventh Circuit held that the bank lacked standing because prudential reasons, Hossler lacks standing to challenge the it had not suffered a direct injury adequate to satisfy Article district court’s order. III’s constitutional requirements. Id. at 221. But just as a No. 01-4265 United States v. Perry 39 40 United States v. Perry No. 01-4265

victim does not suffer an injury in fact when a district court prudential limitations counsel against according Hossler modifies or rescinds a restitution order, Hossler has not standing to challenge the district court’s order in this case. suffered an injury in fact in this case because the district Critical to the issue of Hossler’s standing is the context in court’s decision vacating her judgment lien was in essence which her appeal occurs: Hossler is appealing an order enforcing the terms of its prior restitution order. The fact that entered in a criminal case in which she was not a party. If the the district court in this case vacated Hossler’s judgment lien Perry Investors had gone to state court and filed a lawsuit instead of modifying or rescinding its restitution order does seeking to vacate her judgment lien, Hossler certainly would not mean that she has somehow been injured in a more have standing to appeal from any subsequent decision by the concrete or particularized way than the plaintiffs in Mindel state court, but that is not what is happening here. Nothing in and Johnson. The majority opinion asserts that the MVRA the language or legislative history of the MVRA indicates that does not provide an “express means by which a district court Congress intended to provide victims with a private remedy can alter a victim’s lien rights post hoc,” but presumably a to sue or appeal restitution decisions made in the context of district court does exactly that when it rescinds or modifies criminal cases in which the victims were not parties.2 restitution orders. However, prior cases have held that in those circumstances, victims have not suffered injury in fact As the majority notes, a comparison between the MVRA and do not have standing to appeal. Similarly, Hossler has and its predecessor, the VWPA, is relevant here because not suffered an injury in fact because the district court denied courts have held that victims do not have standing to appeal her the opportunity to make an end run around the schedule a district court’s modification or rescission of a restitution set forth in the court’s previous restitution order.1 order under the VWPA. The majority concludes that the MVRA reflects a more “pro-victim” attitude, primarily Even if Hossler has suffered an injury in fact different from because restitution is now mandatory for certain crimes under that suffered by the victim bank in Johnson, for example, the MVRA, and district courts may no longer consider a defendant’s financial circumstances when determining the amount of restitution to be paid. Even if Hossler has a right 1 to restitution because restitution is now mandatory under the W hile the majority notes that the MVR A pro vides a mechanism for MVRA, this right was not denied when the district court victims to obtain judgment liens in § 3664(m)(1)(B), it is worth noting entered its order vacating her judgment lien. Hossler retained that the MVR A also contemplates the authority of district courts to require her right to restitution in the manner and amount set forth in reimbursement in a particular manner – whether in lump-sum payments, partial payments at specified intervals, in-kind payments, or some the district court’s original restitution order. She was merely combination of the above. 18 U .S.C. § 366 4(f)(3 )(A). D istrict courts denied the opportunity to enforce the district court’s may also favor one victim over another in crafting a restitution order, restitution order in a manner that was contrary to what was based on “the type and am ount o f each victim’s loss and accounting for intended by the district court. In its zeal to protect Hossler’s the econ omic circum stances of each victim.” § 36 64(i). A restitution order creating a priority of victims for p ayment would certainly impact a victim’s right to obtain a judgment lien under § 3664(m)(1)(B) and w ould 2 likely result in situations where a victim desires to challenge the district In fact, it is telling that Hossler has never formally intervened court’s order of priority. These victims, like Hossler, have not suffered because no mechanism exists for a private citizen to intervene in a injury in fact and should not be permitted to appeal such decisions. By criminal case. T he ab sence of such a mec hanism for intervention is opening the do or to victims like Hossler, the majority also opens the door further evidence that Congress d id not contemplate that victim s would to other victims unhappy with the terms of a district court’s restitution participate in criminal cases as parties with standing to appeal restitution order. orders. No. 01-4265 United States v. Perry 41 42 United States v. Perry No. 01-4265

judgment lien, the majority makes no mention of Perry’s intended to extend standing to criminal victims in light of other victims, who presumably also have a right to receive those decisions and its decision to remove victims from the restitution under the provisions of the MVRA and who will be enforcement provision. denied that right if Perry is unable to sell his remaining assets due to Hossler’s judgment lien. While the legislative history of the MVRA indicates that Congress intended mandatory restitution to be one means by In fact, the MVRA has removed victim discretion to which the criminal justice system could be reformed into a enforce restitution orders; enforcement of such orders now system that is more responsive to the needs of crime victims, rests exclusively with the United States. 18 U.S.C. the legislative history also evinces a Congressional intent to § 3664(m)(1)(A). In this respect at least, the MVRA is less streamline the administration of restitution within the criminal “pro-victim” than the predecessor VWPA. Prior to 1996, 18 justice system: U.S.C. § 3663 provided that an order of restitution could be enforced by the United States and “by the victim named in the The procedures contained in this section are intended to order to receive the restitution in the same manner as a provide a streamlined process for the determination of judgment in a civil action.” Under this statutory scheme, both the amount of restitution owed to each victim and either the United States or the victim could seek to enforce an the terms of repayment based on a reasonable order of restitution. This provision was amended, and interpretation of the defendant’s economic pursuant to the new legislation in the MVRA, an order of circumstances. The committee believes that the need for restitution is now enforceable only by the United States. It is finality and certainty in the sentencing process dictates worth noting that this change was enacted after several circuit that this determination be made quickly, but also courts had concluded that victims did not have standing to recognizes that justice requires that this particular aspect challenge restitution orders.3 It seems unlikely that Congress of the criminal sentence be subject to review in the light of changed circumstances. The committee believes that restitution must be considered a part of the criminal sentence, and that justice cannot be considered served 3 W hile this court has not issued any published opinions on the issue until full restitution is made. of a victim’s standing to appeal a restitution order, it briefly discussed the issue in an unp ublished op inion. Un ited States v. C urtis, No. 99-5574, S. Rep. 104-179, 1996 U.S.C.C.A.N. 924, 933 (emphasis 2000 WL 145183 (6th C ir. Feb. 1, 2000). In Curtis, the defendant added). It is hard to see how the goal of streamlining the appealed a district court order denying his motion to end interest charges on his ord er of restitution. Id. at *1. The motion had been filed in an restitution process is served by allowing victims to intervene attempt to force a finance com pany who had purchased the acco unt to and enforce restitution orders in ways that are contrary to cease charging interest on the defendant’s restitution debt and to restore what was intended by the district court at sentencing. any interest already charged on his deb t. Id. In affirming the district court’s judg men t, the court noted that the finance company was never a In support of its position that Hossler has met the prudential party to Curtis’s criminal case, an d that the district co urt had no authority requirements for standing in this case, the majority notes that over the finance com pany. Id. The court added: “Even the victim itself, as a non-party to the criminal case, would not have standing to challenge “the equities favor permitting this appeal” because “[t]here is the restitution order.” Id. (citing Mindel, 80 F.3d at 397 ). According to a substantial question as to whether the district court had the the court, the victim “would have to bring a civil action to enforce the authority to vacate the lien because no MVRA provision restitution order.” Id. (citing United States v. Diamond, 969 F.2d 961, specifically grants district courts that right.” This analysis 969 (10 th Cir. 1992)). No. 01-4265 United States v. Perry 43

confuses the issue of Hossler’s standing with the issue of whether the district court had the authority to vacate a state court judgment lien. These are two separate issues. Hossler does not have standing merely because she does not like the district court’s order or because we do not like the district court’s order. Prudential limitations on standing require that Hossler’s interests be within the zone of interests encompassed by the MVRA. Permitting Hossler’s appeal in this case will provide victims with unprecedented ability to intervene in criminal restitution orders, even if the effect of their intervention is to the detriment of other victims and to the desire for finality and certainty in the restitution process that was articulated by the drafters of the MVRA. Because Hossler’s interests are so “inconsistent with the purposes implicit in the [MVRA] that it cannot reasonably be assumed that Congress intended to permit” this lawsuit, I would dismiss her appeal for lack of standing and decline to address whether the district court properly released her judgment lien.