* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40599

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ROBERT L MCDORMAN

Defendant - Appellant

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 1:04-CR-60-1

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Robert McDorman (“McDorman”) pled guilty to bank fraud subject to a

plea agreement which ordered him to pay $3,374,256.21 in restitution to

Mauriceville National Bank (“MNB”). In a later civil action, a jury found that

MNB was in pari delicto with McDorman, and should therefore not recover

under the civil provisions of the Racketeer Influenced and Corrupt

Organizations Act (RICO) or Texas law. See Rogers v. McDorman, 521 F.3d 381

United States Court of Appeals

Fifth Circuit

F I L E D

December 15, 2008

Charles R. Fulbruge III

Clerk
No. 08-40599

2

(5th Cir. 2008) (relating the facts and upholding the jury’s verdict). McDorman

now challenges the criminal restitution order, arguing that because MNB was

found to be in pari delicto it would be inequitable to award it the ordered

restitution.

McDorman argues that the restitution is civil in nature, so the district

court should reconsider its order under Rule 60(b) of the Federal Rules of Civil

Procedure. The Federal Rules of Civil Procedure, however, “govern the

procedure in all civil actions and proceedings,” FED. R. CIV. P. 1, while the

Federal Rules of Criminal Procedure “govern the procedure in all criminal

proceedings,” FED. R. CRIM. P. 1(a)(1). The word “action” as used in the Federal

Rules of Civil Procedure denotes “the entire controversy.” Hargrave v. Oki

Nursery, Inc., 646 F.2d 716, 719 (2d Cir. 1980). “Proceeding” means “[t]he

regular and orderly progression of a lawsuit, including all acts and events

between the time of commencement and the entry of judgment.” BLACK’S LAW

DICTIONARY 1241 (8th ed. 2004). There is no dispute that restitution was

ordered as part of McDorman’s criminal case, and not as part of any civil action

or proceeding. The penal or compensatory nature of the restitution does not

alter the fact that this was a criminal case governed by the Federal Rules of

Criminal Procedure. The “Federal Rules of Civil Procedure do not apply to

criminal cases.” United States v. Jaimes-Jurado, 254 F. App’x 341, 342 (5th Cir.

2007) (unpublished); see also United States v. Graham, 248 F. App’x 929, 931

(10th Cir. 2007) (unpublished) (“Rule 60(b) is not applicable in criminal cases.”).

McDorman’s arguments pursuant to Rule 60(b) thus fail.

In the alternative, McDorman argues for the first time on appeal that we

should issue a writ of coram nobis to deny restitution to MNB or that we should
No. 08-40599

3

view the take-nothing civil judgment as a subsequent recovery for MNB. But

MNB recovered nothing from the civil case, and so there has been no satisfaction

of the restitution ordered. Nor do we conclude that a later take-nothing

judgment by a civil jury constitutes an error by the criminal court “of the most

fundamental character” that it would justify a writ of coram nobis. See United

States v. Morgan, 346 U.S. 502, 512 (1954). McDorman voluntarily agreed as

part of his plea agreement to pay MNB $3,374,256.21. He has provided no

grounds that would lead us to invalidate that agreement years after the

judgment in his criminal case has become final.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.