Martin McNulty v.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0058p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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In re: MARTIN MCNULTY,
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Petitioner.
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No. 10-3201

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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 09-00149—Herman J. Weber, District Judge.
Submitted: February 24, 2010
Decided and Filed: March 1, 2010
Before: KEITH, MARTIN, and CLAY, Circuit Judges.

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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. This petition for a writ of mandamus
arises from the proceedings in United States v. Arctic Glacier Int’l Inc., No.
1:09-cr-00149 (S.D. Ohio). In that case, Arctic Glacier International was charged in a
criminal information with violating 15 U.S.C. § 1 by participating in “a conspiracy to
suppress and eliminate competition by allocating packaged-ice customers in southeastern
Michigan and the Detroit, Michigan metropolitan area.” (Tr. at 7) Petitioner Martin
McNulty seeks a writ of mandamus to enforce his rights as a victim of this conspiracy
under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771. For the reasons set
forth below, we DENY the petition for mandamus relief.

I.

Arctic Glacier International, Inc., the wholly-owned subsidiary of Arctic Glacier,
Inc., which is the wholly-owned subsidiary of the Arctic Glacier Income Fund

1
No. 10-3201 In re McNulty Page 2

(collectively referred to as “Arctic Glacier”), produces packaged ice and sells packaged
ice in Canada and certain regions of the United States. Arctic Glacier has admitted to
a felony offense of participating in a conspiracy to allocate customers of packaged ice
sold in Southeastern Michigan and the Detroit, Michigan area beginning January 1, 2001
and continuing through at least July 17, 2007. Arctic Glacier stated that it engaged in
discussions and meetings with representatives of other packaged-ice producers and
agreed to allocate customers in those areas. According to the plea agreement that Arctic
Glacier has reached with the government, sales of packaged ice affected by the
conspiracy totaled $50.7 million.

According to his testimony before the district court, Martin McNulty was an
executive for Party Time Ice, which was acquired by Arctic Glacier in December of
2004.1 (Tr. at 29.) He alleges that, while working at Party Time, as early as 1997, he
was told about the conspiracy to allocate customers. (Id.) He alleges that Party Time
executive Chuck Knowlton informed him about the conspiracy and informed him that
if McNulty were to leave Party Time, he could have been boycotted from employment
anywhere in the packaged ice industry. (Id. at 30.) After Party Time was acquired by
Arctic Glacier, McNulty alleges that he was instructed by Arctic Glacier executive Keith
Corbin to participate in the customer allocation conspiracy and that Corbin threatened
to arrange a boycott by the industry if McNulty refused to do so. (Id.) McNulty alleges
that he refused to do so and expressed his opposition to the conspiracy. He alleges that
Arctic Glacier fired him as a result of his refusal to participate in the conspiracy. (Id.)
Following his termination from Arctic Glacier, McNulty signed an agreement with
Arctic Glacier, titled “FULL AND FINAL RECEIPT, RELEASE, DISCHARGE AND
NON-COMPETITION AGREEMENT.” In addition to containing a six-month
non-compete clause, the Agreement provides that in consideration of a severance
payment, McNulty agreed not to sue Arctic Glacier or its employees with respect to any
claims that he had prior to or as of the time that he signed the Release.

1
McNulty was employed by Arctic Glacier from December 2004, when Arctic Glacier acquired
Party Time, through late January 2005, at which time he was terminated and received a severance
agreement from Arctic Glacier.
No. 10-3201 In re McNulty Page 3

Shortly after his termination in late January 2005, McNulty contacted the
government and served as an informant in the subsequent antitrust investigation of
Arctic Glacier.2 (Id.)

He alleges that, later in 2005, after the non-compete clause expired, he began
applying to other packaged-ice companies, but that he was unable to find employment
with any company. (Id. at 32.) He asserts that “two individuals [] told him that he
would not be able to obtain employment in the industry until he stopped cooperating
with the government.” (Id.) He alleges that, as a result of this “blackball[ing,]” his
earnings have been substantially reduced, his house has been foreclosed upon, his credit
scores have fallen, he has been unemployed for extended periods of time, and he remains
unemployed.

In a related pending action, on July 23, 2008, McNulty filed a civil complaint in
the United States District Court for the Eastern District of Michigan against three
producers of packaged ice, including Arctic Glacier, and several of their executives.
McNulty v. Reddy Ice Holdings, Inc., Slip Copy, No. 08-cv-13178 , 2009 WL 1508381
(E.D. Mich. May 29, 2009). The court succinctly described McNulty’s claims as:
“(1) Plaintiff was terminated for refusing to participate in the alleged unlawful collusion
and (2) Defendants conspired against Plaintiff and effectively blackballed him from the
packaged ice industry.” Id. at *6 (overruled on other grounds by McNulty v. Reddy Ice
Holdings, Inc., et al. Slip Copy, No. 08-cv-13178 , 2009 WL 2168231 (E.D. Mich. July
17, 2009)). In that litigation, Arctic Glacier has asserted that the “‘decision [to
terminate McNulty] was made as a result of the restructuring of the Corporate Marketing
department,’” and has denied that its decision resulted from any “market allocation
scheme.” Id. (quoting January 27, 2005 termination confirmation letter to McNulty).

On September 20, 2009, the United States filed a sealed information charging
Arctic Glacier with a conspiracy “to allocate packaged-ice customers in southeastern
Michigan and the Detroit, Michigan metropolitan area.” On October 13, 2009, the

2
He claims that he decided to go to the government shortly before he was terminated, but that he
contacted them shortly after his termination. (Id. at 32.)
No. 10-3201 In re McNulty Page 4

United States filed a plea agreement pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C) in which Arctic Glacier agreed to plead guilty to the above charge, the
parties agreed to recommend a fine of $9 million, and the government agreed not to seek
a restitution order.

The government informed McNulty, who had served as an informant during the
assembly of the case, that he could request restitution through the probation officer. As
per the probation officer’s instructions, McNulty sent a letter and accompanying
declaration to the probation officer on January 20, 2010 requesting $6.3 million in
restitution and that he be recognized as a victim of Arctic Glacier pursuant to the CVRA.
Those documents were provided to the district court.

On February 22, 2010, Judge Weber held a sentencing hearing at which McNulty
moved for restitution pursuant to the CVRA and stated the basis for his claims. The
district court noted that “Mr. Martin McNulty, a former employee of Arctic Glacier
International, claims he is a victim because he refused to participate in the allocation
conspiracy and was fired and blackballed in the ice business.” (Tr. at 114.) The district
court held that

The Court determines the victims of the offense in this case were the
customers. . . . Mr. McNulty was an employee of defendant, not a
customer. There is no evidence he was directly or proximately harmed
by the conspiracy. The cou[n]t [] of conviction is a violation of 15,000
-- or of 15 United States Code, Section 1, which is not a listed offense
under 18 United States Code, Section 3663(a)(1)(A). He is not a victim
of the offense charged in this case.

(Tr. at 117.) Judge Weber imposed a $9 million fine and a five-year term of probation.
He has delayed entering the final judgment and conviction pending resolution of
outstanding petitions regarding claims for victim status under the CVRA.3

3
On February 19, 2010, several purchasers of packaged ice filed a mandamus petition and appeal,
asserting that indirect purchasers of packaged ice were victims under the CVRA. In re Acker, Nos. 10-
3159, 10-3160, 2010 WL 624128, at *1 (6th Cir. Feb. 22, 2010). We denied the petition and dismissed
the appeal, determining that we need not determine whether the indirect purchasers “were ‘directly and
proximately harmed’ by the actions of Arctic Glacier” because the district court actually had afforded them
the status of crime victims and that the district court had “reasonably concluded that the difficulty of
determining losses [of the indirect purchasers] would so prolong and complicate the proceedings that any
need for restitution would be outweighed by the burden on the sentencing process.” Id. at *2.
No. 10-3201 In re McNulty Page 5

On February 24, 2010, McNulty brought this petition for mandamus relief from
the district court’s February 22, 2010 denial of his request for victim status under the
CVRA.

II.

If the district court in a criminal proceeding denies relief sought under the
CVRA, “the movant may petition the court of appeals for a writ of mandamus.” 18
U.S.C. § 3771(d)(3). The court of appeals “shall take up and decide such application
forthwith within 72 hours4 after the petition has been filed.” Id. As we held recently in
a case arising out of the same criminal case,

the plain language of the statute compels application of the normal
mandamus standards. The issuance of a writ of mandamus is relief that
is governed by well-established standards. The use of that specific term
in the statute, in conjunction with the truncated period in which the court
of appeals is to review such a petition and act upon it, convinces us that
those usual standards apply here.

In re Acker, 2010 WL 624128, at *1 (internal citation omitted).

However, “a writ of mandamus is an extraordinary remedy that we will not issue
absent a compelling justification.” In re Prof’ls Direct Ins. Co., 578 F.3d 432, 437 (6th
Cir. 2009). Traditionally, writs of mandamus were used “only to confine an inferior
court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so.” In re Life Investors Ins. Co. of Am., 589 F.3d 319,
323-24 (6th Cir. 2009) (quoting Kerr v. U.S. Dist. Court for the N. Dist. of Cal., 426 U.S.
394, 402 (1976). Thus, “only exceptional circumstances amounting to a judicial
usurpation of power, or a clear abuse of discretion, will justify the invocation of this
extraordinary remedy.” Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367,
380 (2004) (internal quotation marks and citations omitted)). And, because mandamus
is a discretionary remedy, a Court may decline to issue the writ if it finds that it would

4
We would like to express our frustration that Congress has permitted the courts only 72 hours
in which to read, research, write, circulate, and file an order or opinion on these petitions for a writ of
mandamus. Especially in cases such as this, where the law is relatively new and untested, both litigants
and future courts would benefit from additional time to prepare a clear and well-reasoned decision.
No. 10-3201 In re McNulty Page 6

not be “appropriate under the circumstances” even if the petitioner has shown he is
“clear[ly] and indisputabl[y]” entitled to it. Id. at 381.

III.

As in Acker, McNulty was “allowed a full opportunity for participation” in the
proceedings, including an opportunity to submit testimony and evidence at sentencing.
Acker, 2010 WL 624128, at *2. McNulty argues that the district court abused its
discretion in finding that he did not qualify as a “victim” pursuant to the CVRA, which
would permit him to receive restitution for the relevant harm, and, alternatively, in not
ordering restitution to him as part of Arctic Glacier’s sentence of probation.

A. Crime Victims’ Rights Act

A “crime victim” is defined under the CVRA as a person “directly and
proximately harmed as a result of the commission of a Federal offense or an offense in
the District of Columbia.” 18 U.S.C. § 3771(e).5 Because our Court has not had the
opportunity to determine whether a petitioner qualifies as a “victim” pursuant to the
CVRA, we look to our sister Circuits for guidance.6

5
Victims have the following rights under the CVRA:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any public court proceeding,
or any parole proceeding, involving the crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court proceeding, unless the court,
after receiving clear and convincing evidence, determines that testimony by the victim
would be materially altered if the victim heard other testimony at that proceeding.
(4) The right to be reasonably heard at any public proceeding in the district court
involving release, plea, sentencing, or any parole proceeding.
(5) The reasonable right to confer with the attorney for the Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the victim's dignity and
privacy.
18 U.S.C. § 3771(a). The CVRA also provides that the government must make its best efforts to “see that
crime victims are notified of, and accorded, the rights described in subsection (a),” including the
“reasonable right to confer with the attorney for the Government in the case” and the right to be “treated
with fairness.” 18 U.S.C. § 3771(c)(1).
6
We do have substantial case law interpreting related statutes involving restitution to the victims
of crime, the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663, and the Mandatory Victims
Restitution Act (“MVRA”), 18 U.S.C. § 3663A. McNulty cites cases interpreting these statutes as
precedential to findings under the CVRA. While we find our case law interpreting the VWPA and the
MVRA to be persuasive, it is not binding on our interpretation of the CVRA for the purposes of
No. 10-3201 In re McNulty Page 7

“The requirement that the victim be “directly and proximately harmed”
encompasses the traditional ‘but for’ and proximate cause analyses.” In re Rendon
Galvis, 564 F.3d 170, 175 (2d Cir. 2009) (citing In re Antrobus, 519 F.3d 1123, 1126
(10th Cir. 2008) (Tymkovich, J., concurring) (noting that “direct[ ]” harm encompasses
a “but-for” causation notion that is different from proximate harm)). “The necessary
inquiry is [] fact-specific[.]” Id. (citations omitted).

The CVRA “instructs the district court to look at the offense itself only to
determine the harmful effects the offense has on parties. Under the plain language of the
statute, a party may qualify as a victim, even though it may not have been the target of
the crime, as long as it suffers harm as a result of the crime’s commission.” In re

determining whether an individual is a “crime victim,” as the definition differs under the statutes.
A “crime victim” under the CVRA is defined as “a person directly and proximately harmed as
a result of the commission of a Federal offense[.]” 18 U.S.C. § 3771(e). The House Committee report did
not define that term and there was no Senate Committee report on the CVRA. “However, one of the chief
sponsors of the bill, Sen. John Kyl, has explained that ‘the CVRA’s definition of a crime victim is based
on the federal restitution statutes,’ citing the [VWPA and the MVRA].” United States v. Atl. States Cast
Iron Pipe Co., 612 F. Supp. 2d 453, 460-61 (D.N.J. 2009) (citing The Honorable John Kyl et al., On the
Wings of Their Angels: The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila
Lynn Crime Victims’ Rights Act, 9 LEWIS & CLARK L. REV. 581, 594 & n.65 (2005)).
For purposes of the MVRA and the VWPA:
[T]he term “victim” means a person directly and proximately harmed as a result of the
commission of an offense for which restitution may be ordered including, in the case of
an offense that involves as an element a scheme, conspiracy, or pattern of criminal
activity, any person directly harmed by the defendant’s criminal conduct in the course
of the scheme, conspiracy, or pattern.
18 U.S.C. § 3663A(a)(2), 18 U.S.C. § 3663(a)(2).
The two main differences between these definitions of victim are: (1) the CVRA definition does
not contain the qualifier “for which restitution may be ordered” and thus applies to all federal criminal
prosecutions regardless of whether the offense qualifies for restitution; and (2) the VWPA and the MVRA
definition includes the phrase “including, in the case of an offense that involves as an element a scheme,
conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct
in the course of the scheme, conspiracy, or pattern.” Atl. States Cast Iron Pipe Co., 612 F. Supp. 2d at
461-61 (examining in detail the history and legislative history of the three statutes and concluding that “the
CVRA definition would be interpreted to include the expansive clause because of the Congressional and
case law history of that clause under the VWPA”).
Whether the CVRA’s definition of a “crime victim” is best understood as co-extensive with the
MVRA and VWPA definitions regarding offenses qualifying for restitution will only be fully developed
through further cases in this Circuit. Because the CVRA does not include the specific language included
in the other statutes, which predate the CVRA, we cannot assume that Congress intended the definitions
to be identical. However, given the definition of conspiracy, “[a]n agreement by two or more persons to
commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and (in most states)
action or conduct that furthers the agreement; a combination for an unlawful purpose”, BLACK’S LAW
DICTIONARY (8th ed. 2004), in cases involving a conspiracy, it appears logical that those directly and
proximately harmed by criminal conduct in the course of the conspiracy beyond the overt act required to
prove the conspiracy would be victims under CVRA, just as they would be under the VWPA and the
MVRA. Thus, we find our case law construing the VWPA and the MVRA persuasive, both for how the
CVRA is to be interpreted procedurally and for when an individual qualifies as a victim of a conspiracy.
No. 10-3201 In re McNulty Page 8

Stewart, 552 F.3d 1285, 1289 (11th Cir. 2008) (CVRA mandamus petition; circuit court
held that mortgage borrowers were CVRA victims of conspiracy to deprive bank of
honest services, where defendants were bank officer and co-conspirator whose offense
caused borrowers to pay excess fees that defendants pocketed). See, e.g., United States
v. Johnson, 440 F.3d 832, 835-39, 849-50 (6th Cir. 2006) (victims of four predicate
criminal acts in RICO conspiracy conviction were MVRA victims, where district court
found trial evidence established by a preponderance of the evidence that defendant was
actively involved in all four predicate acts); United States v. Washington, 434 F.3d 1265,
1266-70 (11th Cir. 2006) (police department and another property owner were MVRA
victims as to police car and property damaged during chase of defendant fleeing after
bank robbery); Moore v. United States, 178 F.3d 994, 1001 (8th Cir. 1999) (bank
customer was MVRA victim of attempted bank robbery; defendant had stood within six
feet of customer and pointed sawed-off gun at him); but see, e.g., In re Rendon Galvis,
564 F.3d at 175 (mother was “not a crime victim under the CRVA because the harm to
her son was not a direct and proximate result of conspiring to import cocaine into the
United States, which is the crime of conviction [t]here.”).

Thus, in the instant case, the issue becomes whether McNulty was directly and
proximately harmed by criminal conduct in the course of the conspiracy or if the actions
taken by defendants in the underlying case which allegedly harmed McNulty were
merely ancillary to the conspiracy.

In making this determination, we must (1) look to the offense of conviction,
based solely on facts reflected in the jury verdict or admitted by the defendant; and then
(2) determine, based on those facts, whether any person or persons were “directly and
proximately harmed as a result of the commission of [that] Federal offense.” Atl. States
Cast Iron Pipe Co., 612 F. Supp. 2d at 536 (collecting cases stating that this is the
methodology used by courts in making this determination).

Here, the offense of conviction is violation of the Sherman Act,15 U.S.C. § 1,
which states:
No. 10-3201 In re McNulty Page 9

Every contract, combination in the form of trust or otherwise, or
conspiracy, in restraint of trade or commerce among the several States,
or with foreign nations, is declared to be illegal. Every person who shall
make any contract or engage in any combination or conspiracy hereby
declared to be illegal shall be deemed guilty of a felony, and, on
conviction thereof, shall be punished by fine not exceeding $100,000,000
if a corporation, or, if any other person, $1,000,000, or by imprisonment
not exceeding 10 years, or by both said punishments, in the discretion of
the court.

“To sustain a § 1 claim, plaintiffs must prove . . . two essential elements: (1) That
defendants entered into a contract, combination or conspiracy; and (2) That such
contract, combination or conspiracy amounted to an unreasonable restraint of trade or
commerce among the several States.” Cont’l Cablevision of Ohio, Inc. v. Am. Elec.
Power Co., 715 F.2d 1115, 1118 (6th Cir. 1983) (citations omitted).

In the plea agreement and at the sentencing hearing, Arctic Glacier pled guilty7
to “allocat[ing] packaged-ice customers in southeastern Michigan and the Detroit,
Michigan metropolitan area.” (Tr. at 7.) Thus, purported victims of the conspiracy to
violate the Sherman Act must show that they were directly and proximately harmed by
the defendants’ entry into a conspiracy or by the defendants’ actions in unreasonable
restraint of interstate commerce.

Here, we agree with the district court’s holding that McNulty is not a victim for
the purposes of the CVRA. The alleged harm to McNulty stemmed from his firing for
refusing to participate in the conspiracy and his “blackballing” from employment with
packaged-ice companies until he stopped working with the government in exposing the
conspiracy. If proven, these would indeed be harms to McNulty, but they are not
criminal in nature, nor is there any evidence that they are normally associated with the
crime of antitrust conspiracy.

7
Because Arctic Glacier “was convicted pursuant to a guilty plea rather than by a jury, the court
should look to the plea agreement, the plea colloquy, and other statements made by the parties to determine
the scope of the ‘offense of conviction’ for purposes of restitution.” United States v. Elson, 577 F.3d 713,
723 (6th Cir. 2009) (citations omitted) (applying the MVRA).
No. 10-3201 In re McNulty Page 10

To fire an employee and prevent a former employee from being hired by another
company may be illegal under the civil law, but they are not inherently criminal actions,
nor are they actions inherent in the crime of conspiracy to violate antitrust laws to which
Arctic Glacier pled. Civil, not criminal, remedies are available to redress these actions.8

Additionally, that the harm must be “direct” requires that the harm to the victim
be closely related to the conduct inherent to the offense, rather than merely tangentially
linked. McNulty’s firing is not sufficiently related to the offense of conviction for
McNulty to qualify as a victim under the CVRA. While the escape from a bank robbery
which damages a vehicle, Washington, 434 F.3d at 1266-70, or a gun being pointed at
an innocent bystander in the course of a robbery, Moore, 178 F.3d at 1001, are direct and
proximate harms to innocent bystanders that are not part of the elements of the crime,
they are directly related to the crime itself (and are, in many instances, crimes in and of
themselves). McNulty’s firing and blackballing from the industry, if proved, are
ancillary to the actions involved in forming a conspiracy and restraining interstate
commerce.9 Certainly, McNulty’s right to the writ is not “clear and indisputable.”

Thus, the district court did not abuse its discretion in finding that McNulty was
not a victim of the crime pursuant to the CVRA.

B. Mandatory Victims Rights Act

McNulty further argues that the district court abused its discretion in holding that
the fact that Arctic Glacier’s crime of conviction, a violation of 15 U.S.C. § 1, is not

8
McNulty has a civil action pending against Arctic Glacier based on these same actions. As the
district court noted in the sentencing hearing, though McNulty did not mention it in any of his statements
to the court, “there is a civil action available to him.” (Tr. at 55.) The CVRA was not enacted to short
circuit civil litigation to those with valid civil remedies available. Furthermore, the government agreed
in the plea arrangement that the fines imposed against Arctic Glacier would be back-loaded and should a
civil plaintiff obtain a judgment against Arctic Glacier that could not be satisfied alongside the criminal
fine, the government would waive collection of the fine. (Tr. 75, 99, 143-35.)
9
Though it is unlikely, McNulty’s firing and subsequent blackballing in the packaged-ice industry
may have supported a charge of obstruction of justice. However, for purposes of the CVRA definition of
“crime victim,” the only material federal offenses are those for which there is a conviction or plea. See
e.g., Hughey v. United States, 495 U.S. 411, 418 (1990); In re Rendon Galvis, 564 F.3d at 175.
No. 10-3201 In re McNulty Page 11

among the crimes enumerated under 18 U.S.C. § 3663 prevented McNulty from
qualifying for restitution.

A court may order restitution as a condition of probation “not subject to the
limitation of section 3663(a).” United States v. Lexington Wholesale Co., Inc., 71 F.
App’x 507, 508-09 (6th Cir. 2003) (citing Gall v. United States, 21 F.3d 107 (6th Cir.
1994)). Section 5E1.1(a)(2) of the Sentencing Guidelines provides:

In the case of an identifiable victim, the court shall-(2) impose a term of
probation or supervised release with a condition requiring restitution for
the full amount of the victim’s loss, if the offense is not an offense for
which restitution is authorized under 18 U.S.C. § 3663(a)(1) but
otherwise meets the criteria for an order of restitution under that section.

U.S.S.G. § 5E1.1(a)(2).

Just after finding that McNulty was not a victim of Arctic Glacier’s conduct, the
district court acknowledged its ability to impose the condition of restitution to a sentence
of probation. (Tr. at 119.) Thus, it is clear that the district court understood that it was
permitted to impose the condition of restitution to a sentence of probation.

Additionally, as we previously found, McNulty is not “an identifiable victim” of
the crime requiring the court to require restitution. The alleged harms against McNulty
were the firing and blackballing; both of which may be illegal, but neither of which is
criminal in nature nor directly related to the crime of conspiracy to commit antitrust
violations. Thus, the district court did not abuse its discretion in choosing not to grant
McNulty restitution.
No. 10-3201 In re McNulty Page 12

IV.

We therefore we DENY the petition for mandamus relief.