### REVISED OCTOBER 15, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10444

UNITED STATES OF AMERICA, Plaintiff-Appellee v. RONALD W. SLOVACEK, Defendant-Appellee v. JAMES R. BILL FISHER; ODYSSEY RESIDENTIAL HOLDINGS, L.P., Appellants

Appeal from the United States District Court for the Northern District of Texas
Before STEWART, Chief Judge, and JOLLY and DeMOSS, Circuit Judges. CARL E. STEWART, Chief Judge: AppellantJames R. Bill Fisher, aswell as his business, Appellant Odyssey Residential Holdings, L.P., (hereinafter, c ollectively referred to as “Fisher”), appeals the district court’s denial of his request for an award of restitution as a purported victim of Defendant Ronald Slovacek’s criminal bribery offense. As this court recently concluded that nonparties may not challenge adverse United States Court of Appeals

Fifth Circuit 

### F I L E D October 10, 2012 Lyle W. Cayce ClerkNo. 11-10444

2 restitution rulingsvia direct appeal, and instead must rely on the proceduresfor such challenges expressly set forth in the Crime Victims’ Rights Act (“CVRA”),
see In reAmy Unknown, No. 09-41238, 2012 WL 4477444, at *5 (5th Cir. Oct. 1, 2012) (en banc), we dismiss this appeal. I. This case arises out ofthe publiccorruption trial centering around former Dallas City Councilman Don Hill. Hill and others attempted to extort James Fisher, vice president in charge of development and partner of Odyssey Residential Holdings, a low-income housing developer, in exchange for their support of Fisher’s planned housing projects. Fisher approached the FBI to report the extortion, triggering the criminal investigation which led to the indictment of Hill, Slovacek, and others. The district court awarded $112,500 to Fisher as a victim of the extortion conspiracy. Count 10 of the Indictment charged Hill, low-income housing developer Brian Potashnik, his subcontractor Slovacek, and three others with conspiracy to c ommit bribery concerning a local government receiving federal funds, in violation of 18 U.S.C. § 666. The factual allegations described that Hill and others conspired to solicit and accept things of value in exchange for providing official assistance to Potashnik in his pursuit of approval and funding for affordable housing projects. Slovacek, an associate of Hill, was awarded construction subcontracts in exchange for Hill’s official assistance to Potashnik. The district court severed the cases of Slovacek and others. On June 21, 2009, Potashnik entered a guilty plea as to Count 10. Fisher,
oneofPotashnik’scompetitors, filed a motion seeking $1.89 million in restitution from Potashnik based on his conviction under Count 10. Fisher cited expenditures on two projects f or which he sought approval from the City of Dallas. Neither project received approval or financing from the City. The district court denied the motion for restitution, finding that Fisher failed toshowNo. 11-10444

3 that he was directly and proximately harmed by the conspiracy underlying Potashnik’s conviction. This court denied Fisher’s petition for writ of mandamus, brought pursuant to the CVRA, challenging the district court’s restitution ruling. See In re Fisher (Fisher I), No. 11–10006, slip. op. at 2–3 (Jan. 10, 2011). On November 19, 2010, a jury found Slovacek guilty of all three counts against him, including Count 10. Prior to his sentencing, Fisher filed a motion seeking the same $1.89 million in restitution from Slovacek, stemming from his conspiracy conviction under Count 10. At Slovacek’s sentencing hearing, Fisher
was permitted to testify and reiterated his claim that he was a victim of Slovacek’s bri bery scheme because the investments he made to undertake certain development projectswere rendered worthless by the conspiracy. Orally at sentencing, the district court denied the motion, finding that Fisher was not
a victim of Slovacek’s bribery conspiracy because Fisher was not directly and proximately harmed by Slovacek’s offense. On May 9, 2011, this court denied Fisher’s CVRA petition for wri t of mandamus challenging the district court’sdenial ofrestitution against Slovacek pursuant to his conviction under Count 10. See In re Fisher (Fisher II), 640 F.3d 645 (5th Cir. 2011). After the sentencing transcript was released, Fisher moved for reconsideration ofthis court’s denial of his petition claiming restitution against Slovacek. This court denied the motion for reconsideration on August 8, 2011. See In re Fisher (Fisher III), 649 F.3d 401 (5th Cir. 2011). The district court entered a final written judgment against Slovacek, which did not order him to pay restitution to Fisher. Fisher directly appealed the judgment. The Government has moved to dismiss this appeal for lack of jurisdiction. II.No. 11-10444

4 The court reviews its ow n jurisdiction de novo. N ehme v. INS , 252 F.3d 415, 420 (5th Cir. 2001). III. A. Fisher first asserts that he is entitled to restitution under the Mandatory Victims Restitution Act of 1996 (“MVRA”). The MVRA provides that when sentencing a defendant convicted of certain offenses, “the court shall order, in addition to . . . any other penalty authorized by law, that the defendant make restitution to the victim of the offense . . . .” 18 U.S.C. § 3663A(a)(1). In 2004, Congress enacted the Crime Victims’ RightsAct (“CVRA”), which gives victims eight enumerated rights, including “[t]he right to full and timely restitution as provided in law.” I d. § 3771(a)(6). As part of its enforcement scheme, the CVRA provides as follows: The rights described in subsection (a) shall be asserted in the district court in which a defendant is being prosecuted for the crime or, ifno prosecution is underway, in the district court in the district in which the crime occurred. The district court shall take up and decide any motion asserting a victim’s right forthwith. If the district court denies the reliefsought, the movant may petition the court of appeals for a writ of mandamus.

. . . The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed. In no event shall proceedings be stayed or subject to a continuance of more than five days for purposes ofenforcing this chapter. If the court of appeals denies the reliefsought, the reasonsfor the denial shall be clearly stated on the record in a written opinion. Id. § 3771(d)(3). Also as part of its enforcement scheme, the CVRA provides that “[i]n any appeal in a criminal case, the Government may assert as error the district court’s denial of any crime victim’s right in the proceeding to which the appeal relates.” Id. § 3771(d)(4). The CVRA further provides that a victim may make a motion to re-open
a sentence only if, in addition to two other requirements not at issue here, “theNo. 11-10444

5 victim petitions the court of appeals for a writ of mandamus within 14 days[.]” Id. § 3771(d)(5)(B). Lastly, the CVRA provides that “[n]othing in this chapter shall be construed to impair the prosecutorial discretion oftheAttorney General or any officer under his direction.” Id. § 3771(d)(6). B. “The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adversejudgment, is well settled.” Marinov. Ortiz, 484 U.S. 301, 304 (1988); see also Bayard v. Lombard, 50 U.S. 530, 546 (1850) (holding that a writ oferror “cannot be sued out by persons who are not parties to the record,

. . . [or] by strangers to thejudgment and proceedings

. . .”); Payne
v. Niles, 61 U.S. 219, 221 (1857) (“[I]t is very well settled in all common-law courts, that no one can bring up, as plaintiff in a writ of error, the judgment of
an inferior court to a superior one, unless he was a party to thejudgment in the court below

. . . .”); U nited States ex rel. La. v. Boarman, 244 U.S. 397, 402 (1917) (describing the principle proscribing nonparty appeals “as a subject no longer open to discussion”). The courts ofappeals have recognized limited exceptions to this rule. The Supreme Court has regarded these exceptions with, at best, skeptic ism. See Marino, 484 U.S. at 304 (“The Court of Appeals suggested that there may be exceptions tothis general rule, primarily when the nonparty hasan interest that is affected by the trial court’s judgment. . . . We think the better practice is for such a nonparty to seek intervention for purposes of appeal; denials of such motions are, of course, appealable.” (internal quotation marks and citation omitted)); United States ex rel. Eisenstein v. City of NewYork, 556 U.S. 928, 933 (2009) (“The Court has further indicated that intervention is the requisite method for a nonparty to become a party to a lawsuit.”). Unlike the Federal Rules of Civil Pro cedure, there is no procedure for nonparty intervention in cri minal cases. “[T]he Federal Rules of CriminalNo. 11-10444

6 Procedure express an aversion to allowing third-party interference with sentencing.” McClure v. Ashcroft, 335 F.3d 404, 412-13 (5th Cir. 2003). This court has noted that “judgments, particularly criminal judgments, should not be lightly disturbed.” I d. at 411. “In this regard, criminal defendants did not even have a right to appeal until 1889.” Id. at 412. Thiscourt recently determined that nonparty victims do not have the right of direct appeal under the CVRA. See In re Amy, 2012 WL 4477444, at *5 (“Because nothing in the CVRA suggests that Congress intended to grant crime victims the right to an appeal or otherwise vary the historical rule that crime victims do not have the right ofappeal, we conclude that the CVRA grants crime victims only mandamus review.”). In light of this ruling, we hold that our circuit precedent forecloses Fisher’s MVRA claim brought pursuant to the CVRA. Fisher further argues that even if the CVRA does not contemplate direct appeals by victims, he should still be allowed to appeal under 28 U.S.C. § 1291, which provides that “[t]he courts ofappeals

. . . shall havejurisdiction ofappeals from all final decisions ofthe district courts ofthe United States

. . . .” However,
assister circuits considering this question have explained, § 1291 concernswhat may be appealed rather than w ho may appeal. See United States v. AguirreGonzalez, 597 F.3d 46, 52-53 (1st Cir. 2010); United States v. Hunter, 548 F.3d 1308, 1312 (10th Cir. 2008); see also In re Amy, 2012 WL 4477444, at *5 n.4 (explaining that sister circuit decisions allowing crime victims to appeal under § 1291 are unpersuasive). The question of who may appeal remains governed by the principle that nonparties generally lack the capacity to appeal . Fisher’s expansive interpretation of § 1291 would nullify this established principle, as any nonparty, not only victims of crimes, would be able to appeal district court decisions so long as they were final. Accordingly, pursuant to circuit precedent and the well-established principle that nonparties are generally not permitted to appeal adverseNo. 11-10444

7 judgments, particularly in criminal cases, we lack jurisdiction to consider Fisher’s direct appeal of the district court’s criminal judgment. IV. For the foregoing reasons, we DISMISS this direct appeal for lack of jurisdiction. All pending motions are DENIED.