FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE: STAKE CENTER LOCATING, No. 13-73267
INC., Crime Victim.
D.C. No.
2:13-cr-00089-
STAKE CENTER LOCATING, INC., JCM-GWF-1
Petitioner,
v. OPINION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA, LAS
VEGAS,
Respondent,
DEBORAH A. DIFRANCESCO,
Defendant-Real Party in Interest,
UNITED STATES OF AMERICA,
Plaintiff-Real Party in Interest.
Petition for Writ of Mandamus to the
United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
2 IN RE: STAKE CENTER LOCATING, INC.
Submitted September 20, 2013*
Filed September 26, 2013
Before: A. Wallace Tashima, Milan D. Smith, Jr.,
and Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion
SUMMARY**
Criminal Law
A motions panel issued a per curiam opinion denying a
crime victim’s petition for a writ of mandamus seeking
reversal of the district court’s denial of the victim’s motion
for forfeiture under the Crime Victims’ Rights Act.
The panel explained that the Crime Victims’ Rights Act
and the Mandatory Victim Restitution Act give victims a
right to restitution, not a right to criminal forfeiture. The
panel also explained that the Crime Victims’ Rights Act
expressly does not impair the government’s broad discretion
to seek forfeiture of assets implicated in an offender’s wire
fraud.
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IN RE: STAKE CENTER LOCATING, INC. 3
COUNSEL
Kenneth P. Childs, Stake Center Locating, Inc., Salt Lake
City, Utah, for Petitioner.
Elizabeth Olson White, Appellate Chief and Assistant United
States Attorney, District of Nevada, Reno, Nevada, for
Plaintiff-Real Party in Interest.
Mark B. Bailus, Bailus Cook & Kelesis, Ltd., Las Vegas,
Nevada, for Defendant-Real Party in Interest.
OPINION
PER CURIAM:
Petitioner Stake Center Locating, Inc. (“Stake Center”)
petitions for a writ of mandamus reversing the district court’s
denial of its motion for forfeiture under 18 U.S.C. § 3771, the
Crime Victims’ Rights Act (“CVRA”).1
In the underlying criminal action, Deborah DiFrancesco,
a former employee of Stake Center, was charged with crimes
stemming from her embezzlement of funds from Stake Center
and other victims, and pleaded guilty to one count of tax
evasion and three counts of wire fraud. Pursuant to her plea
agreement, DiFrancesco agreed to make restitution to Stake
1
Stake Center previously petitioned this court for mandamus, and we
denied this petition as premature. See Stake Ctr. Locating, Inc. v. U.S.
Dist. Court (In re Stake Ctr. Locating, Inc.), 717 F.3d 1089, 1090 (9th Cir.
2013) (per curiam). The district court has now completed sentencing
DiFrancesco, and Stake Center’s renewed petition is properly before us.
4 IN RE: STAKE CENTER LOCATING, INC.
Center in the amount of $763,846. Stake Center moved the
district court to compel the government to institute criminal
forfeiture proceedings and to obtain property allegedly
traceable to DiFrancesco’s crimes and thus subject to
forfeiture from third parties. The district court denied this
motion.
We have jurisdiction under 18 U.S.C. § 3771(d)(3). In
reviewing a CVRA mandamus petition, we need not balance
the usual factors under Bauman v. United States District
Court, 557 F.2d 650, 654–55 (9th Cir. 1977), but rather “must
issue the writ whenever we find that the district court’s order
reflects an abuse of discretion or legal error.” Kenna v. U.S.
Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006).
Here, the district court did not abuse its discretion or
commit a legal error in denying Stake Center’s motion for
forfeiture. First, the CVRA and Mandatory Victim
Restitution Act (“MVRA”) give victims a right to restitution,
not a right to criminal forfeiture. The CVRA provides that a
crime victim has the “right to full and timely restitution as
provided in law.” 18 U.S.C. § 3771(a)(6). The Mandatory
Victim Restitution Act (“MVRA”) requires that a “defendant
make restitution to the victim” of certain offenses. 18 U.S.C.
§ 3663A(a)(1). Criminal forfeiture is not, as petitioner
contends, a type of restitution; “[c]riminal forfeiture is . . .
separate from restitution, which serves an entirely different
purpose.” United States v. Newman, 659 F.3d 1235, 1241
(9th Cir. 2011). Among other differences between restitution
and forfeiture, only the criminal defendant is subject to
restitution, not third parties. See 18 U.S.C. § 3663A(a)(1),
(b)(1) (requiring that “defendant make restitution” and
“defendant” return property).
IN RE: STAKE CENTER LOCATING, INC. 5
Nor did the district court err in declining to order the U.S.
Attorneys’ Office to commence criminal forfeiture
proceedings against the Internal Revenue Service and other
non-parties alleged to possess assets implicated in
DiFrancesco’s criminal activities. Contrary to Stake Center’s
argument, forfeiture is mandatory for wire fraud only if the
government exercises its discretion to seek such forfeiture.
See 28 U.S.C. § 2461(c); Fed. R. Crim. P. 32.2(a); United
States v. Liquidators of European Fed. Credit Bank, 630 F.3d
1139, 1144 (9th Cir. 2011) (describing procedure for
forfeiture). “[T]he Government retains broad discretion as to
whom to prosecute.” Wayte v. United States, 470 U.S. 598,
607 (1985) (quotation omitted). The CVRA expressly does
not impair that broad discretion. See 18 U.S.C. § 3771(d)(6)
(“Nothing in this chapter shall be construed to impair the
prosecutorial discretion of the Attorney General or any officer
under his direction.”).2
Accordingly, Stake Center’s petition for writ of
mandamus is denied.
DENIED.
2
Because we decide this issue on these grounds, we do not reach the
other arguments advanced by the government why forfeiture proceedings
cannot be commenced in this case.