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:

Appellant James R. BillFisher, as well as his business, Appellant Odyssey

Residential Holdings, L.P., (hereinafter, collectively 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

Clerk
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2

restitution rulings via direct appeal, and instead must rely on the procedures for

such challenges expressly set forth in the Crime Victims’ Rights Act (“CVRA”),

see In re Amy 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 of the public corruption 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 commit 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,

one of Potashnik’s competitors, filed a motion seeking $1.89 million in restitution

from Potashnik based on his conviction under Count 10. Fisher cited

expenditures on two projects for 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 thatFisher failed to show
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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 bribery scheme because the investments he made to undertake

certain development projects were 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 writ of

mandamus challenging the district court’s denial of restitution 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 of this 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.
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The court reviews its own jurisdiction de novo. Nehme 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’ Rights Act(“CVRA”), which

gives victims eight enumerated rights, including “[t]he right to full and timely

restitution as provided in law.” Id. § 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, if no 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 relief sought, 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 of enforcing this chapter. If the court of appeals denies the

relief sought,the reasons for 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, “the
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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 ofthe Attorney 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 adverse judgment, is well settled.” Marino v. Ortiz, 484

U.S. 301, 304 (1988); see also Bayard v. Lombard, 50 U.S. 530, 546 (1850)

(holding that a writ of error “cannot be sued out by persons who are not parties

to the record, . . . [or] by strangers to the judgment 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 the judgment in the

court below . . . .”); United 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 of appeals have recognized limited exceptions to this rule. The

Supreme Court has regarded these exceptions with, at best, skepticism. See

Marino, 484 U.S. at 304 (“The Court of Appeals suggested that there may be

exceptions to this general rule, primarily when the nonparty has an interestthat

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 New York, 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 Procedure, there is no procedure for

nonparty intervention in criminal cases. “[T]he Federal Rules of Criminal
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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.” Id. at 411. “In this regard, criminal defendants did not even

have a right to appeal until 1889.” Id. at 412. 

This court 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 of appeal, 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 of appeals . . . shall have jurisdiction of appeals

from all final decisions of the district courts of the United States . . . .” However,

as sister circuits considering this question have explained, § 1291 concerns what

may be appealed rather than who 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 adverse
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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.