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In re Stake Center Locating, Inc.

United States Court of Appeals, Ninth Circuit

September 26, 2013

United States District Court for the District of Nevada, Las Vegas, Respondent, Stake Center Locating, Inc., Petitioner, Deborah A. DiFrancesco, Defendant-Real Party in Interest, United States of America, Plaintiff-Real Party in Interest.

Submitted Sept. 20, 2013.[*]

Page 950

Kenneth P. Childs, Stake Center Locating, Inc., Salt Lake City, UT, for Petitioner.

John Gregory Damm, Assistant U.S. Attorney, Las, Vegas, NV, Elizabeth Olson White, Appellate Chief and Assistant United States Attorney, and Daniel D. Hollingsworth, Assistant U.S. Attorney, District of Nevada, Reno, NV, for Plaintiff-Real Party in Interest.

Mark B. Bailus, Bailus Cook & Kelesis, Ltd., Las Vegas, NV, for Defendant-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. D.C. No. 2:13-cr-00089-JCM-GWF-1.




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 18U.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

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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 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).

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, 105 S.Ct. 1524, 84 L.Ed.2d 547 (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.


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