discussing the CVRA and holding that "[a] person is directly harmed by the commission of a federal offense where that offense is a but-for cause of the harm. A person is proximately harmed when the harm is a reasonably foreseeable consequence of the criminal conduct."
How later courts described this case
- discussing the CVRA and holding that "[a] person is directly harmed by the commission of a federal offense where that offense is a but-for cause of the harm. A person is proximately harmed when the harm is a reasonably foreseeable consequence of the criminal conduct."
- “The CVRA’s ‘directly and proximately harmed’ language imposes dual requirements of cause in fact and foreseeability. A person is directly harmed by the commission of a federal offense where that offense is a but-for cause of the harm. A person is proximately harmed when the harm is a reasonably foreseeable consequence of the criminal conduct.” (footnotes omitted)
- applying law-of- the-case doctrine in similar circumstances
- applying the law-of-the-case doctrine
Written by the judges who cited it.
The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 9, 2011
No. 11-10452
Lyle W. Cayce
Clerk
In Re: JAMES R. FISHER and ODYSSEY RESIDENTIAL HOLDINGS, LP
Petitioners
Petition for a Writ of Mandamus to the
United States District Court for the Northern District of Texas
Before HIGGINBOTHAM, SMITH, and PRADO, Circuit Judges
PATRICK E. HIGGINBOTHAM, Circuit Judge:
The petitioners James R. Fisher and Odyssey Residential Holdings, LP
(hereinafter, collectively, “Fisher”) seek a writ of mandamus directing the
district court to recognize that Fisher is a crime victim within the meaning of the
Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771(d)(3), and the Mandatory
Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. We deny the petition
because our current understanding of the record persuades us that the district
court was not clearly and indisputably wrong to find that Fisher failed to prove
that he had been directly and proximately harmed by Ronald W. Slovacek’s
criminal conduct. We also deny each of Fisher’s pending motions, for reasons we
explain below.
I.
No. 11-10452
This mandamus proceeding arises out of the public-corruption prosecution
centering around former Dallas City Council Member Don Hill. At issue here
is a conviction arising out of Count 10 of the superseding indictment in this
matter, which alleges that Hill and various other members of Dallas city
government conspired to solicit and accept things of value in exchange for
providing official assistance to the defendant Brian Potashnik in his pursuit of
City approval and funding for various affordable-housing-development projects.
One of the things of value Hill and his coconspirators solicited was the award of
construction subcontracts on Potashnik’s developments to the defendant Ronald
Slovacek. A jury eventually convicted Slovacek of this conspiracy charge.
The petitioner in this proceeding, Fisher, was a competitor of Potashnik’s
who was seeking City approval of his own affordable-housing developments.
Fisher and his company spent approximately $1.8 million on two such projects.
Neither of those projects ever received approval or financing from the City. After
Slovacek was found guilty of participating in the criminal conspiracy, Fisher
sought restitution. He argued that the conduct of Slovacek and his
coconspirators had rendered his $1.8 million investment worthless. The district
court found that Slovacek’s criminal conduct was not a direct and proximate
cause of Fisher’s $1.8 million loss and declined to order restitution.
II.
The CVRA gives“[a] crime victim . . . [t]he right to full and timely
restitution as provided in law.”1 A crime victim is any person who has been
“directly and proximately harmed as a result of the commission of a Federal
offense.”2 Where, as here, a district court has denied a request for restitution
under the CVRA, the putative victim may petition the court of appeals for a writ
1
18 U.S.C. § 3771(a)(6).
2
Id. § 3771(e).
2
No. 11-10452
of mandamus.3 In In re Dean, we held that a writ of mandamus may issue under
the CVRA:
only if (1) the petitioner has “no other adequate means” to attain the
desired relief; (2) the petitioner has demonstrated a right to the
issuance of a writ that is “clear and indisputable;” and (3) the
issuing court, in the exercise of its discretion, is satisfied that the
writ is “appropriate under the circumstances.”4
The CVRA requires us to “take up and decide” Fisher’s mandamus petition
within seventy-two hours of the petition’s filing.5
The CVRA’s “directly and proximately harmed” language imposes dual
requirements of cause in fact and foreseeability. A person is directly harmed by
the commission of a federal offense where that offense is a but-for cause of the
harm.6 A person is proximately harmed when the harm is a reasonably
foreseeable consequence of the criminal conduct.7 “Under the plain language of
the statute, a party may qualify as a victim, even though it may not have been
the target of the crime, as long as it suffers harm as a result of the crime's
commission.”8
3
Id. § 3771(d)(3).
4
527 F.3d 391, 394 (5th Cir. 2008) (per curiam) (quoting In re United States, 397 F.3d
274, 282 (5th Cir. 2005) (per curiam)).
5
See 18 U.S.C. § 3771(d)(3).
6
In re McNulty, 597 F.3d 344, 350 (6th Cir. 2010) (explaining that “[t]he requirement
that the victim be ‘directly and proximately harmed’ encompasses the traditional ‘but for’ and
proximate cause analyses” and that “direct harm encompasses a ‘but-for’ causation notion”
(citations, internal quotation marks, and brackets omitted)).
7
Cf. United States v. Vaknin, 112 F.3d 579, 590 (1st Cir. 1997) (explaining that
restitution under the Victim and Witness Protection Act requires a showing “not only that a
particular loss would not have occurred but for the conduct underlying the offense of conviction,
but also that the causal nexus between the conduct and the loss is not too attenuated (either
factually or temporally)”), abrogated on other grounds by United States v. Booker, 543 U.S. 220
(2005).
8
In re Stewart, 552 F.3d 1285, 1289 (11th Cir. 2008) (per curiam).
3
No. 11-10452
Fisher’s mandamus petition comes before us in an unusual posture. The
district court denied Fisher’s request for restitution on the record during a
sentencing hearing after hearing testimony from Fisher. No written order has
issued; the transcript of the hearing contains the only explanation of the district
court’s decision. A transcript of this hearing is not presently before us, but this
does not change the fact of the statute’s 72-hour deadline. As a result, we must
review the district court’s decision based upon the factual narrative presented
to us by the briefs and the transcript of a prior sentencing hearing during which
Judge Lynn rejected Fisher’s request for restitution from Slovacek’s co-defendant
Brian Potashnik.9 There, Fisher testified at length regarding the criminal
conduct of which he claimed to be a victim, and the district court rejected as too
speculative Fisher’s claim that he loss a meaningful opportunity to acquire the
business obtained by his competitor as a result of the conspiracy. That rejection
cuts the legs from Fisher’s claim here against another codefendant. Based on
the record presently before us, we conclude that (1) the district court found that
Fisher had not established that the commission of the federal offense of bribery,
as alleged in Count 10 of the indictment, was a but-for cause of his losses; and
(2) that this finding was not so clearly and indisputably wrong as to warrant the
extraordinary relief of mandamus.10
Fisher advances two arguments as to why Slovacek’s criminal conduct was
a but-for cause of his approximately $1.8 million financial loss. First, Fisher
argues that had he been aware of Slovacek’s ongoing criminal conduct, he would
not have made the approximately $1.8 million investment he made in two
competing affordable-housing developments. As Fisher explains in his petition,
9
See generally Transcript of Sentencing Hearing in United States v. Potashnik,
available at Appendix in Support of Petition for a Writ of Mandamus in In re Fisher, No. 11-
10006 (filed Jan. 6, 2011).
10
If the transcript of Slovacek’s sentencing hearing, once available, shows that our
understanding of the proceedings below is inaccurate or incomplete, Fisher will be allowed to
file a motion for reconsideration on this basis. See infra note 14 and accompanying text.
4
No. 11-10452
“the conspiracy’s concealment was a ‘but for’ cause of inducing these
investments.” This argument’s exclusive focus on the concealment of the
conspiracy is misplaced: the target of the but-for inquiry is the conspiracy
itself.11 Fisher has offered no evidence to show that Slovacek’s criminal conduct
induced Fisher to make his $1.8 million investment or that Fisher would not
have made that investment if no conspiracy had taken place. Indeed, the
evidence is squarely the contrary: at the time he made the decision to invest the
$1.8 million, Fisher mistakenly believed that no conspiracy was under way.
There is no reason to believe Fisher would have made a different investment
decision if that belief had not turned out to be mistaken.
Nor can Fisher prevail on the related argument that but for the
conspiracy, his $1.8 million investment would not have been for naught. This
argument depends on the assumption that the City Council would have
approved Fisher’s competing developments had the conspiracy not taken place.
The district court found that this assumption was too speculative to support a
finding of but-for causation.
Second, Fisher argues that he was “denied a level playing field in having
his projects fairly considered by the Dallas City Council.” In support of this
argument, Fisher cites a handful of cases in which other courts have held that
the loss of a fair competitive opportunity is a sufficiently concrete and cognizable
injury to support standing under the Racketeer Influenced and Corrupt
Organizations Act. Although this doctrine also finds application in the Equal
Protection- and antitrust-standing context, neither this Court—nor any other
11
The cause-in-fact inquiry asks what would have happened had “the defendant’s
wrongful conduct [been] ‘corrected’ to the minimal extent necessary to make it conform to the
law’s requirements.” David W. Robertson, The Common Sense of Cause in Fact, 75 TEX. L.
REV. 1765, 1770 (1997). If Slovacek had failed to conceal his participation in the criminal
conspiracy but nonetheless continued to engage in it, his conduct would not have been in
conformity with the law’s requirements.
5
No. 11-10452
court we are aware of—has ever determined whether it is properly deployed for
a final restitution-liability determination under the CVRA or the MVRA.
We can—and hereby do—deny Fisher’s petition without answering that
question of law. We rest instead on two alternative grounds, each of which is
independently sufficient to support our decision. First, the district court found
that the claim that Fisher would have had a fair opportunity or a level playing
field in the absence of the conspiracy was too speculative to support an order of
restitution. The court also found that it was too speculative to conclude that
competing on a level playing field would have enabled Fisher to avoid his $1.8
million loss. Neither of these findings was clearly erroneous. Second, and
relatedly, Fisher advanced an identical lost-opportunity argument at the
sentencing hearing of Slovacek’s co-defendant Brian Potashnik. Judge Lynn
rejected it, and we held in In re Fisher that her decision to do was not clearly and
indisputably wrong.12 That holding is the law of this case13 and thus forecloses
us from granting mandamus relief based on Fisher’s lost-chance claim.
III.
Because the record presently before us does not establish that Fisher
clearly and indisputably proved that he was a victim under the MVRA and the
CVRA, we deny the petition for mandamus. We deny the petition without
prejudice to Fisher’s right to file a petition for rehearing or a motion for
reconsideration once an official transcript of the sentencing hearing is filed (but
12
See In re Fisher, No. 11-10006, slip. op. at 2–3 (Jan. 10, 2011).
13
See Lyons v. Fisher, 888 F.2d 1071, 1074 (5th Cir. 1989) (“The law of the case
doctrine provides that a decision of a factual or legal issue by an appellate court establishes
the ‘law of the case’ and must be followed in all subsequent proceedings in the same case in the
trial court or on a later appeal in the appellate court.” (citation, internal quotation marks, and
ellipsis omitted)).
6
No. 11-10452
in no case later than twenty days from today).14 The scope of any such motion
or petition shall be limited to any prejudice suffered here by Fisher for want of
an official transcript.
In addition, we deny as moot Fisher’s motion to waive the statutory
requirement of decision upon a petition for mandamus within 72 hours under the
CVRA.
Finally, we also deny Fisher’s motion to consolidate the mandamus
petition with his appeal raising identical issues, treat the petition as an opening
brief on the merits of the appeal, and consolidate decision on the appeal. We
deny this motion without prejudice to any right of appeal Fisher may enjoy.
Nothing we say here should be read to imply any view on the proper answer to
the question of whether the CVRA gives a putative victim the right to file a
direct appeal.
PETITION DENIED.
14
Congress’s decision to impose a 72-hour decisional deadline on CVRA mandamus
petitions does not imply that Congress intended to foreclose the possibility of rehearing or
reconsideration on a more reasonable timetable. When Congress does intend such a
foreclosure, it says so explicitly. See, e.g., 28 U.S.C. § 2244(b)(3)(E) (“The grant or denial of an
authorization by a court of appeals to file a second or successive application shall not be
appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.”).
7