FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE: STAKE CENTER LOCATING, No. 13-72062
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
2 IN RE: STAKE CENTER LOCATING, INC.
Submitted June 17, 2013*
Filed June 19, 2013
Before: Michael Daly Hawkins, Ronald M. Gould,
and Paul J. Watford, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Hawkins
SUMMARY**
Criminal Law
The panel denied as premature a petition pursuant to the
Crime Victims Rights Act for a writ of mandamus
challenging the district court’s denial of a crime victim’s
request for forfeiture of certain assets implicated in the
defendant’s criminal activities.
The panel held that because the defendant’s sentencing is
still pending, the petitioner’s request for restitution is not yet
ripe.
Concurring, Judge Hawkins would go further and deny
the petition on the merits.
*
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 Real
Party in Interest United States of America.
Mark B. Bailus, Bailus Cook & Kelesis, Ltd., Las Vegas,
Nevada, for Real Party in Interest Deborah DiFrancesco.
OPINION
PER CURIAM:
Petitioner Stake Center Locating, Inc., a victim of
defendant Deborah DiFrancesco’s (“DiFrancesco”) crimes,
petitions for a writ of mandamus pursuant to 18 U.S.C.
§ 3771, the Crime Victims Rights Act (“CVRA”). Because
we find that the petition for a writ of mandamus is premature,
we deny the petition.
DiFrancesco was charged with one count of income tax
evasion in violation of 26 U.S.C. § 7201 and three counts of
wire fraud in violation of 18 U.S.C. § 1343. On May 29,
2013, pursuant to a plea agreement, DiFrancesco pled guilty
to all charges. In her plea agreement, DiFrancesco agreed to
pay petitioner restitution in the amount of $763,846.34.
DiFrancesco’s sentencing hearing is scheduled for September
4, 2013.
4 IN RE: STAKE CENTER LOCATING, INC.
Prior to DiFrancesco’s May 29, 2013 plea hearing,
petitioner filed a motion in the district court for relief
pursuant to the CVRA and the Mandatory Victim Restitution
Act (“MVRA”). In addition to requesting that the district
court reject the plea agreement, petitioner requested
mandatory forfeiture of certain assets implicated in
DiFrancesco’s criminal activities, which are no longer in
DiFrancesco’s possession. The district court denied
petitioner’s motion without prejudice. Petitioner challenges
this denial.
In reviewing CVRA mandamus petitions, we are not
required to balance the factors outlined in Bauman v. United
States Dist. Court, 557 F.2d 650 (9th Cir. 1977). Rather, this
court “must issue the writ whenever we find that the district
court’s order reflects an abuse of discretion or legal error.”
See Kenna v. United States Dist. Court, 435 F.3d 1011, 1017
(9th Cir. 2006).
Petitioner’s request for restitution is not yet ripe. Victims
are provided a right to “full and timely restitution as provided
in law” pursuant to the CVRA. 18 U.S.C. § 3771(a)(6). The
MVRA provides for restitution “when sentencing a
defendant.” 18 U.S.C. § 3663A(a)(1); see also § 3663A(c)(1)
(“This section shall apply in all sentencing
proceedings. . . .”). The right to “full and timely restitution”
attaches at the defendant’s sentencing hearing, where the
district court may order restitution after considering the
presentence report and other documentation or testimony.
See 18 U.S.C. § 3664. Because DiFrancesco’s sentencing is
still pending, petitioner is not currently entitled to restitution.
Moreover, the district court has invited petitioner to renew its
request for restitution in connection with DiFrancesco’s
sentencing hearing. See May 29, 2013 Transcript at 24.
IN RE: STAKE CENTER LOCATING, INC. 5
Because petitioner’s claim is unripe, we decline to
consider the merits of petitioner’s claims to restitution.
Accordingly, the petition for a writ of mandamus is denied.
DENIED.
HAWKINS, Circuit Judge, concurring:
While I agree it is appropriate to refuse mandamus relief
on prematurity grounds, I would go further and deny the
petition on the merits. Regardless of whether Petitioner is
entitled to restitution from the defendant in this case, the
relief it seeks here—an order directing the U.S. Attorney to
seize assets and a criminal forfeiture against the
I.R.S.—pertains only to third parties. Among a number of
flaws in the petition, the authorities Petitioner relies upon,
quite logically, apply only to restitution or forfeiture from
criminal defendants. See 18 U.S.C. § 3663A(b) (“[t]he court
shall order . . . that the defendant make restitution to the
victim of the offense”) (emphasis added); Fed. R. Crim. P.
32.2(a) (requiring that the government provide “notice to the
defendant” in the indictment or information that it will seek
the forfeiture of property) (emphasis added). Absent
authority to order the seizure of assets from, or criminal
forfeiture against, third parties, this court simply cannot grant
the relief Petitioner seeks.