FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE: STAKE CENTER LOCATING,

INC., Crime Victim.

STAKE CENTER LOCATING, INC.,

Petitioner,

v.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA, LAS

VEGAS,

Respondent,

DEBORAH A. DIFRANCESCO,

DefendantReal Party in Interest,

UNITED STATES OF AMERICA,

PlaintiffReal Party in Interest.

No. 13-72062

D.C. No.

2:13-cr-00089-

JCM-GWF-1

OPINION

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.