           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    United States v. Perry                     No. 01-4265
        ELECTRONIC CITATION: 2004 FED App. 0075P (6th Cir.)
                    File Name: 04a0075p.06                                                  _________________
                                                                                                 COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ARGUED: Karen Kelly Grasso, THOMPSON HINE,
                  FOR THE SIXTH CIRCUIT                                  Cleveland, Ohio, for Appellant. Christian H. Stickan,
                    _________________                                    ASSISTANT UNITED STATES ATTORNEY, Cleveland,
                                                                         Ohio, Frank J. Witschey, WITSCHEY & WITSCHEY,
 UNITED STATES OF AMERICA , X                                            Akron, Ohio, for Appellees. ON BRIEF: Karen Kelly
            Plaintiff-Appellee, -                                        Grasso, Robert M. Gippin, THOMPSON HINE, Cleveland,
                                  -                                      Ohio, for Appellant. Christian H. Stickan, ASSISTANT
                                  -   No. 01-4265                        UNITED STATES ATTORNEY, Cleveland, Ohio, Frank J.
           v.                     -                                      Witschey, WITSCHEY & WITSCHEY, Akron, Ohio, for
                                   >                                     Appellees.
                                  ,
 ANTHONY P. PERRY ,               -
          Defendant-Appellee, -                                             CLAY, J., delivered the opinion of the court, in which
                                                                         DUGGAN, D. J., joined. GIBBONS, J. (pp. 36-43), delivered
                                  -                                      a separate dissenting opinion.
           v.                     -
                                  -                                                         _________________
                                  -
 TRYLLOUS HOSSLER,
                                  -                                                             OPINION
         Intervenor-Appellant. -                                                            _________________
                                 N
      Appeal from the United States District Court                          CLAY, Circuit Judge. Intervenor Tryllous Hossler appeals
       for the Northern District of Ohio at Akron.                       a November 5, 2001 order vacating a judgment lien, entered
     No. 01-00017—Dan A. Polster, District Judge.                        by the United States District Court for the Northern District
                                                                         of Ohio, after Intervenor filed a judgment lien pursuant to 18
                     Argued: April 30, 2003                              U.S.C. § 3664(m)(1)(B) of the Mandatory Victims Restitution
                                                                         Act (“MVRA”), against an Ohio property belonging to
              Decided and Filed: March 10, 2004                          Defendant Anthony Perry. This transaction occurred after
                                                                         Perry pleaded guilty to various counts related to a securities
        Before: CLAY and GIBBONS, Circuit Judges;                        fraud scheme and the court ordered restitution to his victims,
                 DUGGAN, District Judge.*                                including Intervenor.
                                                                           For the reasons set forth below, we VACATE the order
                                                                         releasing Intervenor’s judgment lien.
    *
     The Honorable Patrick J. Duggan, United States District Judge for
the Eastern District of Michigan, sitting by designation.

                                  1
No. 01-4265                      United States v. Perry     3    4       United States v. Perry                              No. 01-4265

       FACTS AND PROCEDURAL HISTORY                              contract failed to close, the asset purchase agreement would
                                                                 fail to close as well.1
  On January 25, 2001, Defendant Anthony Perry pleaded
guilty to three counts related to securities fraud. The court       Perry’s civil attorney then moved to release Intervenor’s
sentenced Perry to a two-year prison sentence and ordered        lien on behalf of the other victims.2 In findings and orders
Perry to make restitution in the amount of $715,078.40 to his    dated October 25, 2001, and November 5, 2001, the district
victims. Intervenor, a ninety-one year -old woman, is one of     court granted the motion and vacated the lien. Intervenor
Perry’s victims. The restitution order required Perry to         filed her notice of appeal on November 28, 2001.
reimburse her $92,000. The district court, however, ordered
Perry to make all payments to the clerk’s office so that the       After the district court vacated the lien, the land contract
clerk could “forward the money to victims pro rata until the     and asset purchase agreement closed. Perry turned the
full amount is paid.”                                            $45,000 he received over to the district court, which disbursed
                                                                 the money proportionately to all investors, including
  David Bettiker, Donna Bettiker, James A Bruggeman,             Intervenor.
Henry Bruno, Mary Bruno, Wilma R. Cottrell, Lloyd P.
Greenlese, Dorothy A. Nicolard, Donald L. Nicolard, Thomas         On December 28, 2001, the government moved to dismiss
W. Ozbolt, Julia A. Ozbolt, Robert Serpentini, Amelia            the appeal for want of jurisdiction, arguing that Intervenor
Serpentini, Jayne L. Simo, Arnold W. Stanley, Carl               lacked standing to appeal the district court’s order and that
Weisenbach, Eleanor M. Weisenbach, and Russell E.                Intervenor’s appeal was untimely. Intervenor opposed the
Workman (collectively, the “Perry Investors”) are also           motion. On February 4, 2002, we ordered the parties to
victims included in the restitution order. The Perry Investors   address both the standing and timeliness issues in their briefs.
appear before us as Appellees.
                                                                                             DISCUSSION
  The restitution order did not specify an order of priority
among the victims. Pursuant to the Mandatory Victims               Before reaching the merits, we must consider whether (1)
Restitution Act (MVRA), 18 U.S.C. § 3664(m)(1)(B),               we lack jurisdiction because of Intervenor’s allegedly
Intervenor obtained a judgment lien on Perry’s Wadsworth,        untimely filing; or (2) Intervenor lacks standing to prosecute
Ohio, real property. She recorded the lien in Medina County,     this appeal.
Ohio, on August 7, 2001.
  In September of 2001, Perry entered into a land contract           1
and asset purchase agreement with Dawn and Boyd Ferrebee,              Interveno r’s counsel notes that Interveno r proposed, by letter, that
prospective buyers of the Wadsworth property. Perry owns         she transfer her lien to the district court’s fund so that Perry could close
                                                                 the sale, after which they would resolve the legal issue of Intervenor’s
a corporation as well, and Perry also planned to sell the        priority. The Perry Investors refused her offer.
business’ assets to the Ferrebees as well in an asset purchase
agreement that would close with the closing of the land              2
                                                                       As discussed further below, Perry’s civil attorney seems to have a
contract. The closing of the asset purchase agreement was        significant conflict of interest because he represe nts both Perry and his
contingent on the purchase of the land contract. If the land     victims. One suspects that the Perry Investors would have avoided many
                                                                 of the unusual problems this case presents had they followed Intervenor
                                                                 and secure d independent counsel.
No. 01-4265                         United States v. Perry     5   6       United States v. Perry                             No. 01-4265

                               I.                                  Appellees claim that Intervenor’s appeal falls under Fed. R.
                                                                   App. P. 4(b), which would make her notice of appeal thirteen
  We independently ascertain our own jurisdiction. United          days late.
States v. True, 250 F.3d 410, 418 (6th Cir. 2001). A timely
notice of appeal “is both a mandatory and a jurisdictional           This is not an ordinary appeal from a criminal judgment
prerequisite.” United States v. Christunas,126 F.3d 765, 767       because it involves a civil matter initiated by a third party.
(6th Cir. 1997).                                                   Fed. R. App. P. 4(b)(1)(A) states that “[i]n a criminal case, a
                                                                   defendant’s notice of appeal must be filed in the district court
  Intervenor filed her notice of appeal twenty-three days after    within 10 days.” (emphasis added). Intervenor was not the
the district court vacated her lien. Appellees make a              defendant below, and Fed. R. App. P. (4)(b) makes no
halfhearted attempt to argue that Intervenor filed her notice of   provision for other parties.3
appeal late. Fed. R. App. P. 4(a) provides:
                                                                      In this and other circuits, 4(a) governs civil-type appeals in
  (1) Time for Filing a Notice of Appeal.                          criminal cases. See, e.g., United States v. Hayman, 342 U.S.
                                                                   205, 209 n.4 (1952) (noting motions to set aside or correct
    (A) In a civil case, except as provided in Rules               criminal sentences are civil actions for purposes of Fed. R.
        4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal        App. P. 4); United States v. Wade, 255 F.3d 833, 839 (D.C.
        required by Rule 3 must be filed with the district         Cir. 2001) (holding petition for attorney fees filed by
        court within 30 days after the judgment or order           intervenors in federal criminal abatement proceeding was a
        appealed from is entered.                                  “civil case,” rather than a “criminal case,” for purpose of
                                                                   determining time limits for taking appeal) (citing In re 1997
    (B) When the United States or its officer or agency is         Grand Jury, 215 F.3d 430, 433-36 (4th Cir. 2000)); Palma v.
        a party, the notice of appeal may be filed by any          United States, 228 F.3d 323, 325 (2d Cir. 2000) (finding
        party within 60 days after the judgment or order           timely government appeal after fifty-six days of the lower
        appealed from is entered.                                  court’s decision, in a criminal proceeding, to restore
                                                                   defendant’s firearms privileges); United States v. Truesdale,
Fed. R. App. P. 4(a) covers civil proceedings. In contrast,        211 F.3d 898, 904 (5th Cir. 2000) (holding action to recover
Fed. R. App. P. 4(b) provides less time for criminal appeals:      attorneys fees arising out of a criminal matter is not part of
  (1) Time for Filing a Notice of Appeal:                          the underlying criminal case, making Fed. R. App. P. 4(b)
                                                                   applicable); United States v. Means, 133 F.3d 444, 450 (6th
    (A) In a criminal case, a defendant’s notice of appeal
        must be filed in the district court within 10 days
        after the later of:                                            3
                                                                         The Tenth Circ uit is the lone exception. In United States v. Robbins,
                                                                   179 F.3d 1268, 12 70 (10th Cir. 1999), the court found that Fed. R. App.
       (i) the entry of either the judgment or the order           P. 4(b) governs civil appeals for attorneys’ fees arising out of criminal
           being appealed; or                                      proceedings. Other circuits have directly attacked Robbins. See United
                                                                   States v. Wade, 255 F.3d 833, 839 n.5 (D.C. Cir. 2001) (rejecting Robbins
                                                                   because it “provides little analysis” and lacks “any persuasive power”);
       (ii) the filing of the government’s notice of appeal.       In re 199 7 Gra nd Ju ry, 215 F.3d 430, 435 (4th Cir. 2000) (rejecting
                                                                   Robbins beca use of its “conclusory rationale”).
No. 01-4265                         United States v. Perry   7    8      United States v. Perry                        No. 01-4265

Cir. 1998) (finding defendant had sixty days to appeal the                                         1.
denial of his motion to consolidate his original criminal
proceedings with his motion to vacate his sentence filed             The new law unquestionably reflects a dramatically more
pursuant to 28 U.S.C. § 2255); United States v. Taylor, 975       “pro-victim” congressional attitude; unlike its predecessor,
F.2d 402, 403 (7th Cir. 1992) (“[M]any appealable orders          restitution is mandatory rather than discretionary for
technically ‘in’ criminal cases look more civil than              defendants convicted of certain offenses. See 18 U.S.C.
criminal—from the return of bond money to motions under           §§ 3663A(a)(1) (“Notwithstanding any other provision of
28 U.S.C. § 2255 that parallel the civil petition for a writ of   law, when sentencing a defendant convicted of an offense
habeas corpus.”); United States v. Martinson, 809 F.2d 1364,      described in subsection (c), the court shall order . . . that the
1367 (9th Cir. 1987) (treating motions for return of property     defendant make restitution to the victim of the offense or, if
pursuant to Federal Rule of Criminal Procedure 41(e) as civil     the victim is deceased, to the victim's estate.”). But see id. at
equitable proceedings even though brought under the rules of      § 3663A(c)(3) (describing very limited circumstances, not
criminal procedure). Thus, although the judgment lien is          applicable to this case, in which the district court may refrain
related to a criminal proceeding, 4(a) applies to Intervenor’s    from ordering restitution). Also unlike the VWPA, district
appeal because a dispute over a lien is more appropriately        courts may no longer consider a defendant's financial
classified as “civil-type” litigation.                            circumstances when determining the amount of restitution to
                                                                  be paid. Id. at § 3664(f)(1)(A) (“In each order of restitution,
                              II.                                 the court shall order restitution to each victim in the full
                                                                  amount of each victim’s losses as determined by the court and
  We next consider Intervenor’s standing. We find that she        without consideration of the economic circumstances of the
has standing under both the the MVRA and Article III.             defendant.”). The MVRA thus made restitution mandatory
                                                                  and creates a greater basis for victim self-help. See 18 U.S.C.
                              A.                                  § 3663(a)(1), (a)(3). Most pertinent here—and also unlike the
                                                                  VWPA—the new law allows victims to obtain judgment liens
   The Victim and Witness Protection Act (“VWPA”), as             based on restitution orders. Id. at § 3664(m)(1)(B).
amended in 1996 by the Mandatory Victims Restitution Act,
provides a framework enabling victims of certain crimes to          Significantly, the MVRA also has its own legislative
receive compensation from the perpetrators. See 18 U.S.C.         history. As the Senate Judiciary Committee explained:
§§ 3363-64. The VWPA, as modified by the MVRA, allows
victims named in restitution orders to obtain and register a          This provision [the MVRA] is intended by the committee
judgment lien on the defendant’s property that then operates          to clarify that the issuance of a restitution order is an
as a lien on the property under state law. Id. at                     integral part of the sentencing process that is to be
§§ 3664(m)(1)(B), (d)(2)(A)(v). The law does not provide              governed by the same, but no greater, procedural
any limits on the victim’s ability to obtain a judgment lien          protections as the rest of the sentencing process. . . . The
and it provides no express means by which a district court can        committee believes that this provision fully comports
alter a victim’s lien rights post hoc.                                with the requirements of the due process clause of the
                                                                      fifth amendment. . . . [T]he act . . . ensures the protection
                                                                      of the victim’s right to a fair determination of the
                                                                      restitution owed. The committee believes this provision
No. 01-4265                              United States v. Perry           9    10     United States v. Perry                               No. 01-4265

  will ensure the streamlined administration of justice                           The MVRA provides that a lien against the defendant’s
  while at the same time protecting the rights of all                          property “shall be a lien on the property of the defendant
  individuals.                                                                 located in such State in the same manner and to the same
                                                                               extent and under the same conditions as a judgment of a court
S. REP. NO . 104-179, at 20-21 (1996), reprinted in 1996                       of general jurisdiction in that State.”          18 U.S.C.
U.S.C.C.A.N. 924, 933-34. This makes clear that Congress                       § 3664(m)(1)(B). In Ohio, judgment liens create property
meant the MVRA to protect the rights of all individuals,                       interests, see Central Trust Co. v. Jensen, 616 N.E.2d 873,
including victims, in a manner consistent with due process                     877 (Ohio 1993), and the federal constitution prevents the
requirements. As the subsequent paragraphs explore, the                        deprivation of these Ohio property interests without due
heretofore unmentioned due process issue is an elephant in                     process, see Verba v. Ohio Cas. Ins. Co., 851 F.2d 811, 817
Appellees’ rather tiny room.                                                   (6th Cir. 1988). Therefore, once Intervenor obtained a valid
                                                                               lien under state law—a fact not disputed—she also obtained
                                    2.                                         a property right of constitutional magnitude.
   To the extent any ambiguity exists as to whether Intervenor                    At least limited to the facts Intervenor presents, interpreting
has standing under the MVRA, we must follow the doctrine                       the MVRA as never authorizing non-party appeals would
of constitutional doubt and “interpret statutes to avoid ‘grave                create potentially significant due process problems. It is
and doubtful constitutional questions.’” Pa. Dep’t. of Corr.                   unclear from the record precisely what process Intervenor
v. Yeskey, 524 U.S. 206, 212 (1998) (citing United States ex                   received before the district court vacated her lien. She filed
rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408                     papers in opposition to the motion to vacate her lien, but it
(1909)). The government may not deprive people of property                     appears as though the Court did not hold a hearing. More
interests without due process. See, e.g., United States v.                     importantly, the district court’s order vacating the lien does
James Daniel Good Real Prop., 510 U.S. 43 (1993); FDIC v.                      not specify the law upon which the court relies. The order
Mallen, 486 U.S. 230 (1988); Barry v. Barchi, 443 U.S. 55                      just assumes plenary authority to vacate state law judgment
(1979). At least since Louisville Joint Stock Land Bank v.                     liens.
Radford, 295 U.S. 555 (1935), constitutionally protected
property rights include the “right to retain [a] lien until the
indebtedness thereby secured is paid.”4 Id. at 594.
                                                                               thereby is paid is a subs tantive property right which may not be taken
    4
                                                                               from the creditor consisten tly with the Fifth and Fourteenth Amendme nts
      See also Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798           to the Co nstitution.”); In re F ranklin, 210 B.R. 56 0, 565 (B ankr.
(1983) (holding that "a mo rtgagee clearly has a leg ally protected property   N.D.Ill.1997) (“[I]it is a general requirement of constitutional due process
interest," and so is "entitled to notice reaso nably calculated to apprise     that a lienholder be given actual notice of any proceeding in which its lien
him" of a proceeding that would have the effect of voiding that interest);     may be lost.”); James Talcott Constr., Inc. v. P & D Land Enter., 862
Da vis Oil Co. v. M ills, 873 F.2d 7 74, 787 (5th Cir. 1989) (holding that     P.2d 395, 397-98 (Mont.1993) (“The right to retain a lien until the debt
even though junior lien holder's mineral lease was terminated, as matter       secured thereby is paid is a substantive property right. Therefore, the
of Louisiana law, upon judicial sale of property pursuant to forec losure      discharge of a lien amo unts to deprivation of a substantive property
on mortgage superior to lease, junior lien holder was nevertheless entitled    right.”) (internal citations omitted); In re U pset Sale, 479 A.2d 940, 944
to due process prior to termination of his interest in p roperty); Security-   (Pa.1984) (“As we read M ennonite Board of Missions v. Adams, due
First Nat’l Bank of L.A. v. Rindge Land & Navigation Co., 85 F.2d 557,         process requires protection of liens because they are property interests.”)
561 (9th C ir. 193 6) (“T he right to retain a lien until the debt secured     (internal citation o mitted).
No. 01-4265                         United States v. Perry    11    12       United States v. Perry                           No. 01-4265

  Orders issued without legal basis, conflicts of interest, and                                        1.
generally mysterious conduct reflect exactly the sort of sloppy
adjudication that a thorough district court proceeding, i.e., due      Bryant v. Yellen, 447 U.S. 352 (1980), is a leading example
process, is meant to avoid. Of course, it may be that nothing       of a non-party appeal.5 Bryant involved a federal statute
untoward occurred below. Process can vindicate superficially        governing the allocation of irrigation waters in the West
questionable behavior just as easily as it can uncover              meant to benefit smaller farmers by restricting access to the
impropriety in seemingly ordinary activity. We would raise          water to farmers holding no more than 160 acres of land. Id.
potentially serious due process issues by interpreting the          at 368 n.19. The United States sued a California irrigation
MVRA, when applied to this case, as not authorizing an              agency to force it to comply with the federal statute. Id. at
appeal so that this Court can determine whether the district        366. The district court found that the statute did not apply to
court handled matters properly. Particularly in light of the        certain lands in California, owned in parcels larger than 160
legislative history, it would make sense to read the statute in     acres, that had vested rights to irrigation waters. Id. The
a manner that will allow Intervenor to vindicate (or attempt to     government did not appeal this decision. Id. Even though the
vindicate) her constitutionally recognized property interest.       government declined to appeal, the Supreme Court
                                                                    unanimously recognized the standing of a group of
  Our thesis is simple: A judgment lien is a constitutionally       farmworkers to intervene and appeal the decision. Id. at 366-
protected property right. That is undisputed. Congress may          68. The Court reached this conclusion because the
not make a law that interferes with constitutionally protected      intervenors “had a sufficient stake in the outcome of the
property rights without that law being subjected to                 controversy to afford them standing to appeal.” Id. at 368.
meaningful judicial scrutiny. We must interpret the
provisions of the MVRA in a manner that avoids unwarranted            In Linda R.S. v. Richard D., 410 U.S. 614 (1973), the Court
constitutional problems.                                            considered whether a non-party had standing to challenge the
                                                                    government’s decision to apply a law in a particular manner.
                               B.                                   Id. In Linda R.S., the appellant, the mother of an illegitimate
                                                                    child, sued to enjoin the local district attorney from failing to
  Article III affords standing to non-parties for the purposes      prosecute the father for refusing to pay child support. Id. The
of appeal in some circumstances. Yniguez v. Arizona, 939            district attorney generally prosecuted delinquent fathers of
F.2d 727, 731 (9th Cir. 1991) (stating that “‘post -judgment
intervention for purposes of appeal may be appropriate if the
intervenors meet . . . traditional standing criteria’”) (quoting
Legal Aid Soc’y of Alameda County v. Brennan, 608 F.2d
1319, 1328 (9th Cir. 1979).

                                                                         5
                                                                          Other repre sentative cases involving post-judgm ent appeals by non-
                                                                    parties include Un ited Airlines, Inc. v. M cDona ld, 432 U.S. 385, 395-96
                                                                    & n. 16 (1977), Hodgson v. Un ited Mine Workers, 473 F.2d 118, 129
                                                                    (D.C. Cir.19 72), Pellegrino v. Nesbit, 203 F.2d 463, 465 (9th Cir. 1953),
                                                                    United States Casualty Co. v. Taylor, 64 F .2d 5 21, 526-527 (4th Cir.
                                                                    1933), and American Brake Shoe & Foundry Co. v. Interborough Rapid
                                                                    Transit Co., 3 F.R .D. 162, 1 64 (S.D.N.Y . 194 2).
No. 01-4265                           United States v. Perry        13     14   United States v. Perry                       No. 01-4265

legitimate children but not those of illegitimate children. Id.6                                         2.
The Supreme Court found the petitioner lacked standing,
albeit in language that helps clarify the standing issues in this             The Court decided Linda R.S. thirty years ago, and the
case. See id. at 617-19.                                                   Court has since developed the “direct relationship” standing
                                                                           requirement into two more precise sub-requisites;
   The Court held that, “appellant has failed to allege a                  “redressability,” and “fairly traceable.” See, e.g., Whitmore
sufficient nexus between her injury and the government                     v. Arkansas, 495 U.S. 149, 155 (1990); Simon v. E. Ky.
action which she attacks to justify judicial intervention.” Id.            Welfare Rights Org., 426 U.S. 26, 38 (1976). In its first use
at 617-18. The Court conceded that the lack of child support               of the specific phrase “fairly traceable,” the Supreme Court
meant that appellant suffered an injury, but stressed that                 explained that standing requires that “the injury is indeed
“‘[t]he party who invokes [judicial] power must be able to                 fairly traceable to the defendant's acts or omissions.” Village
show . . . that he has sustained or is immediately in danger of            of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S.
sustaining some direct injury as the result of [a statute’s]               252, 261 (1977) (citing, inter alia, Linda R.S., 410 U.S. at
enforcement.’” Id. at 618 (citing Massachusetts v. Melon,                  617). The Court has described “redressability” as the causal
262 U.S. 447, 488 (1923)) (emphasis added in Linda R.S.).                  connection between the injury and the relief sought. See
The Court noted that the “appellant has made no showing that               Allen v. Wright, 468 U.S. 737, 752 (1984) (explaining that
her failure to secure support payments results from the                    redressability depends on whether “the prospect of obtaining
nonenforcement” of the child support statute; rather, “if                  relief from the injury as a result of a favorable ruling is too
appellant were granted the requested relief, it would result               speculative”).
only in the jailing of the child’s father. The prospect that
prosecution will, at least in the future, result in payment of                Ultimately, in Valley Forge Christian College v. Americans
support can, at best, be termed only speculative.” Id. Thus,               United for Separation of Church & State, Inc., 454 U.S. 464
the Court emphasized that the proposed remedy (arrest)                     (1982), the Supreme Court rearticulated its prior standing
would not redress the injury (lack of child support). Stated               decisions in a three-part test for standing: someone has
differently, the injury (lack of child support) was not traceable          standing if he or she (1) suffers and injury in fact that (2) is
to the alleged impropriety (non-prosecution). As the Court                 fairly traceable to the alleged misconduct and (3) redressable
concluded, “[c]ertainly the ‘direct’ relationship between the              by the relief sought. Id. at 472; see also Allen, 468 U.S. at
alleged injury and the claim sought to be adjudicated, which               751 (“A plaintiff must allege personal injury fairly traceable
previous decisions of this Court suggest is a prerequisite to              to the defendant's allegedly unlawful conduct and likely to be
standing, is absent in this case.” Id.                                     redressed by the requested relief.”) (citing Valley Forge, 454
                                                                           U.S. at 472).
                                                                             The dissent cites four cases for the critical proposition that
                                                                           “[b]ecause restitution is part of criminal sentencing and is
                                                                           penal in nature, victims of crime do not suffer an ‘injury in
                                                                           fact’ when a district court modifies or terminates a restitution
    6
      Although the Lind a R.S. decision never reached the merits, the      order.” Given that the Supreme Court has held that such
Court recognized th e rights of illegitimate children three years later.   abstract injuries as “aesthetic harm,” see United States v.
See Matthew v. Lucas, 427 U.S. 495 , 506 (1967) (subjecting official       SCRAP, 412 U.S. 669, 678 (1973), and “stigmatization,” see
distinctions based o n legitimacy to intermed iate scrutiny).
No. 01-4265                        United States v. Perry      15    16       United States v. Perry                        No. 01-4265

Heckler v. Mathews, 465 U.S. 728, 739-40 (1984), qualify as          MVRA.7 Schad relied largely on the reasoning in both
constitutionally cognizable injuries, it is hard to accept that an   Mindel and Johnson, see Schad, 1998 WL 193129, *2, and
inadequate restitution order (conceivably depriving someone          Mindel primarily on Johnson, see Mindel, 80 F.3d at 397.
of thousands of dollars) would not constitute an injury in fact      Johnson, in turn, depends extensively on VWRA’s legislative
when the statute has authorized restitution. If victims lack         history, see Johnson, 983 F.2d at 220, which the MVRA has
standing to challenge restitution orders, the justiciability         now superseded.
defect has much more to do with the redressability and “fairly
traceable” prongs of the standing test than with a lack of an          Notably, Johnson also gains support from Kelly v.
injury in fact.                                                      Robinson, 479 U.S. 36 (1986), in which the Supreme Court
                                                                     held that restitution obligations imposed as probation
   First, the dissent cites United States v. Mindel, 80 F.3d 394     conditions are not dischargable in bankruptcy proceedings.
(9th Cir. 1996), in which the defendant attempted to appeal          See Johnson, 983 F.2d at 220. According to the Court:
the district court’s decision to rescind a judgment it
previously entered pursuant to the VWPA with regard to the             The criminal justice system is not operated primarily for
disposition of the defendant’s property. Id. at 395-96. Next,          the benefit of victims, but for the benefit of society as a
the dissent discusses United States v. Johnson, 983 F.2d 216           whole. Thus, it is concerned not only with punishing the
(11th Cir. 1993), which involved a bank attempting to appeal           offender, but also with rehabilitating him. Although
the district court’s decision to rescind a restitution order           restitution does resemble a judgment “for the benefit of”
issued pursuant to the VWPA. Id. at 218. Third, the dissent            the victim, the context in which it is imposed undermines
references United States v. Schad, No. 97-5003, 1998 WL                that conclusion. The victim has no control over the
193129, *1 (10th Cir. Apr. 22 1998), an unpublished order              amount of restitution awarded or over the decision to
that considered whether a victim could participate as a party          award restitution. Moreover, the decision to impose
to obtain a garnishment order. Id. at *1. Finally, the dissent         restitution generally does not turn on the victim's injury,
cites one of this Court’s unpublished Rule 34 orders, United           but on the penal goals of the State and the situation of the
States v. Curtis, No. 99-5574, 2000 WL 145183, *1 (6th Cir.            defendant.
Feb. 1, 2000). The order noted that “the victim, as a non-
party to the criminal case, would not have standing to               Kelly, 479 U.S. at 52. Although the Mindel/Johnson rationale
challenge the restitution order.” Id. This standing remark           uses the phrase “injury in fact,” the reasoning of these
was entirely tangential to Curtis, which involved a                  opinions essentially tracks Kelly. As the Mindel Court
defendant’s appeal of a district court order denying his             argued:
request to end interest charges on a restitution order. Id.
Curtis did not involve a non-party.                                    The Eleventh Circuit, however, has considered this issue
                                                                       and has held that crime victims do not have standing to
  From the outset, none of the cases cited involve the MVRA.           appeal a district court's rescission of a criminal restitution
Curtis never mentions the MVRA because Curtis has little to
do with the present issue, and courts decided Mindel,                     7
Johnson, and Schad before Congress implemented the                         Although the Tenth Circuit filed its Schad order in 19 98, after
                                                                     Congress enacted the MVRA, Schad involved a judgment issued pursuant
                                                                     to the VWPA and the Schad court analyzed that order under the VWPA.
                                                                     See 199 8 W L 19 312 9, at *1.
No. 01-4265                       United States v. Perry     17   18        United States v. Perry                                  No. 01-4265

  order. See United States v. Johnson, 983 F.2d 216, 217             As these cases mention, the VWPA does not guarantee the
  (11th Cir.1993). Distinguishing the divergent interests of      victim much; under the VWPA, the victim may have received
  victims from those of the Government—the former's               less based on the offender’s financial circumstances, and the
  being compensatory, while the latter's penal—the                victim had no right to receive anything at all. The VWPA
  Eleventh Circuit determined that a restitution order            also did not afford victims much “ability to influence the
  serves a penal rather than a compensatory purpose. Id. at       outcome.” Id. at 910. As Kelly explained, under the VWPA,
  220. Thus, the victims had not suffered “injury in fact,”       “the decision to impose restitution generally does not turn on
  and therefore did not have standing to appeal the district      the victim's injury, but on the penal goals of the State and the
  court's rescission order.                                       situation of the defendant.” 479 U.S. at 52. None of this is
                                                                  true anymore.
80 F.3d at 397. Another case observing that victims may not
appeal restitution orders, United States v. Brown, 744 F.2d                                                3.
905 (2d Cir. 1984), uses language taken from Kelly almost
verbatim:                                                            As explained in Section II(A), the MVRA makes restitution
                                                                  mandatory for victims of certain offenses. See 18 U.S.C.
  [T]hough the VWPA was intended to compensate the                §§ 3663A(a)(1). Thus, the victims of many crimes now have
  victim, it does so in a manner distinct from the normal         a right to restitution. Also unlike the VWPA, district courts
  functioning of a civil adjudication. A court imposing an        may no longer consider a defendant's financial circumstances
  order of restitution is required to consider the defendant's    when determining the amount of restitution to be paid. Id. at
  ability to pay. 18 U.S.C. § 3580(a). The victim may             § 3664(f)(1)(A). The MVRA invites victims to participate in
  therefore be awarded less than full compensation solely         the sentencing process through the United States Probation
  because of the offender's financial circumstances.              Office.8 Id. at § 3664(d)(2). These changes reflect a more
  Furthermore, unlike a civil suit, the victim is not a party
  to a sentencing hearing and therefore has only a limited
  ability to influence the outcome. The victim cannot                  8
                                                                           That provision states:
  control the presentation of evidence during either the
  criminal trial or the sentencing hearing and is not even             The probation officer shall, prior to submitting the presentence
  guaranteed the right to testify about the extent of his              report under subsection (a), to the extent practicable—
  losses. Neither can he appeal a determination he deems               (A) p rovid e notice to all identified victims of—
  inadequate.
                                                                              (i) the offense or offenses of which the defendant was convicted;
Id. at 910. Since the cases holding that victims cannot appeal                (ii) the amounts subject to restitution submitted to the
restitution orders depend so heavily on the VWPA, the                         probation officer;
differences between the VWPA and the MVRA help show                           (iii) the op portunity of the victim to submit information to
                                                                              the probation officer concerning the amount of the victim's
why these older decisions do not preclude Intervenor from                     losses;
appealing the district court’s elimination of her property                    (iv) the scheduled date, time, and place of the sentencing hearing;
interest.                                                                     (v) the availability of a lien in favor of the victim pursuant
                                                                              to subsection (m)(1)(B); and
                                                                              (vi) the opportunity of the victim to file with the probation
                                                                              officer a separate affidavit relating to the amount of the
No. 01-4265                               United States v. Perry           19     20    United States v. Perry                        No. 01-4265

fundamental shift in the purpose of restitution, as explained                     because a victim lacks the injury in fact required to appeal a
in the MVRA’s legislative history. The new restitution                            restitution order, a victim must also lack the injury in fact
scheme is not merely a means of punishment and                                    required to appeal anything sufficiently related to a restitution
rehabilitation, but an “attempt to provide those who suffer the                   order. This flimsy principle forms the core of the Appellees’
consequences of crime with some means of recouping the                            rationale for claiming Intervenor did not suffer an injury in
personal and financial losses.” H.R. REP. NO . 104-16, at 5                       fact.
(1995).
                                                                                     The issue, as the dissent frames it, is whether a litigant
  Each case the dissent cites, Mindel, Johnson, and Schad,                        suffers an injury in fact when a district court rescinds or
involved the appeal of an order rescinding or modifying a                         modifies its own restitution order which formed the basis
restitution order, not an order vacating a constitutionally                       from which the litigant had secured a state court judgment
cognizable property interest.9 See Mindel, 80 F.3d at 395-96;                     lien. Even assuming, however, the dissent is correct in its
Johnson, 983 F.2d at 218; Schad, 1998 WL 193129, *1.                              view of the scope of the district court’s order, Intervenor has
Essentially, both the government and the dissent reason that                      undoubtedly suffered an injury in fact because the district
                                                                                  court vacated Intervenor’s property interest after it had been
                                                                                  secured by the judgment lien. See Valley Forge Christian
         victim's losses subject to restitution; and                              Coll., 454 U.S. at 472; Verba, 851 F.2d at 811. Standing
                                                                                  looks at whether the challenged conduct (vacating the
    (B) provide the victim with an affidavit form to submit pursuant to           judgment lien) is the cause of her injury, and whether the
subparagraph (A)(vi).                                                             relief requested (restoring the lien) would redress the injury.
18 U .S.C. § 366 4(d)(2).
                                                                                  Standing measures the distance between the Intervenor’s
                                                                                  demand and the problem’s source, and Intervenor’s demand
    9
      The only case to discuss victims’ appellate rights under the MVRA
                                                                                  and the problem’s solution, but not the connection between
is United States v. Kemp, 938 F.Supp. 1554 (N.D.Ala.1996). The Kemp               Intervenor’s demand and elements of Perry’s trial and
court wrote:                                                                      sentencing that might be sine qua non of Intervenor’s
                                                                                  complaint, but are not causa causans of her problem.
    W ho will complain to an appellate court when a victim does not
    get what he thinks the MVRA calls for? The ac t makes no                                                      4.
    attempt to remedy the defect in the VW PA which su rfaced in
    United States v. Johnson, 983 F.2d 216 (1 1th Cir.1993), name ly,
    that a victim has no standing to ap peal. The U.S. Attorney,                     By this point, one should recognize two serious problems
    overworked and with no m otivation whatsoever to take an                      with Appellees’ position. First, despite their attempt to
    appeal on behalf of a victim, will not do it. This fact has been              characterize the inability to appeal a VWPA restitution order
    proven emp irically, because, as previously stated, no U.S.                   as a result of an inadequate injury in fact, the “fairly
    Attorney has ever appealed from a denial of restitution or from               traceable” and redressability portions of the standing analysis
    an order of restitution in a lesser amount than that claimed by a
    victim.
                                                                                  offer a much more reasonable explanation for the inability to
                                                                                  appeal a VWPA order. Second, Appellees are not seriously
Id. at 1564 (emp hasis in origina l). Even assum ing this ana lysis is correct,   contending that the deprivation of a constitutionally protected
the case is d istinguishable because Kemp addresses the right to appeal a         liberty interest is not a constitutionally cognizable injury; it is
restitution order, whereas this case involv es the right to appeal an order       also easy to show that Intervenor’s injury is fairly traceable to
vacating a lien.
No. 01-4265                        United States v. Perry    21    22    United States v. Perry                              No. 01-4265

the order of which she complains and that a favorable ruling       Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 156
from this Court would redress her injury.                          (1970); Dist. 2, Marine Eng’r Beneficial Ass’n v. Burnley,
                                                                   936 F.2d 284, 286 (6th Cir. 1991).
   Beginning with the first issue, the VWPA made it difficult
for victims to appeal restitution orders because their claimed       The “zone of interest” test focuses on Congressional intent.
injuries, inadequate restitution payments, were not fairly         Clarke v. Securities Indus. Assoc., 479 U.S. 388, 399 (1987).
traceable to purportedly unlawful conduct, nor necessarily         The challenged statute is victims’ rights legislation that
redressable by judicial action. As noted, under the VWPA, a        expressly authorizes the disputed judgment lien. Intervenor
court did not have to award restitution. Restitution fell within   has raised an issue within the MVRA’s “zone of interests.”
the district court’s discretion, which meant that a decision to
award restitution, or award arguably insufficient restitution,        Prudential concerns also prohibit us from affording
was not fairly traceable to any statutory violation.               standing to parties that attempt to raise nothing more than
Furthermore, one can plausibly claim that a restitution order      abstract grievances better handled by the legislative or
found insufficient by a victim could not be redressed              executive branches, see, Colo. Taxpayers Union, Inc. v.
judicially because, as the case law quoted above emphasized,       Romer, 963 F.2d 1394, 1396 (10th Cir. 1992), S.J. Groves &
the VWPA used restitution only as a punitive and                   Sons Co. v. Fulton County, 920 F.2d 752, 757 (11th Cir.
rehabilitative tool, not a mechanism to partly recompense          1991), or from affording standing to parties attempting to
victims.      Thus, particular features of the VWPA                assert the legal rights of third parties. See, e.g., United States
scheme—features absent from the MVRA—explain the                   v. Raines, 362 U.S. 17, 22 (1960), Tileston v. Ullman, 318
decisions that deny standing to appeal a VWPA restitution          U.S. 44, 46 (1943). Other circuits to have considered these
order.                                                             issues have found that prudential concerns do not prevent a
                                                                   nonparty from appealing when that party participated in the
  Second, whether or not standing would exist for someone          proceedings and the equities favor hearing the appeal.10
to appeal a restitution order under the MVRA, it definitely        Commodity Futures Trading Comm'n v. Topworth Int'l, Ltd.,
exists for Intervenor to appeal an order destroying a protected    205 F.3d 1107, 1113 (9th Cir.1999); Davis v. Scott, 176 F.3d
property interest. Assuming the district court acted illegally
in vacating Intervenor’s lien, her loss is “fairly traceable” to
the district court’s order. A decision by this Court reversing          10
                                                                          Although the parties refer to Tryllous Hossler as “Intervenor,” she
the district court’s order would redress Intervenor’s injury.      never formally intervened as one would do in a civil proceeding. A
This is straightforward.                                           requirement that a party either intervene or attempt to intervene seems
                                                                   inapp ropriate in this unusual case, because no mechanism exists for a
                              5.                                   private citizen to intervene in a criminal case. Thus, we have not always
                                                                   required intervention. In CBS Inc. v. Young, 522 F.2d 234, 23 7 (6th Cir.
  Once one concludes that Intervenor has suffered an injury        1975), for instance, we allowed a news organization to appeal a “gag”
in fact, fairly traceable to the wrong of which she complains      order issued in a civil case even though the news organization was
                                                                   “neither a party to the litigation nor specifically enjoined by the order
and redressable by the relief she seeks, courts must still         from discussing the case.” As far as our Article III standing analysis is
consider whether prudential concerns make an appeal                concerned, it makes no difference that this is criminal case . See
improper. This means that the alleged injury must fall within      Associated Builders & Contractors v. Perry, 16 F.3d 688 , 692 (6th Cir.
the “zone of interests” protected by the statute at issue. See     1994) (“In the context of standing, however, the crim inal versus civil
                                                                   distinction is a distinction witho ut a difference.”).
No. 01-4265                       United States v. Perry     23    24    United States v. Perry                       No. 01-4265

805, 807 (4th Cir.1999); Krebs Chrysler-Plymouth, Inc. v.                                         III.
Valley Motors, Inc., 141 F.3d 490, 496 (3d Cir.1998); Searcy
v. Philips Elecs. N. Am. Corp., 117 F.3d 154, 157 (5th               Because Intervenor has standing under both the MVRA and
Cir.1997); see also West v. Radio-Keith Orpheum Corp., 70          Article III itself, we proceed to consider the merits of her
F.2d 621, 624 (2d Cir. 1934) (“The reason for [the party-only      claim. Intervenor argues that the district court had no
appeals doctrine] is that if not a party, the putative appellant   authority to release her lien because the MVRA does not
is not concluded by the decree, and is not therefore aggrieved     provide such authority. Appellees counter that the court
by it. But if the decree affects his interests, he is often        below had the necessary authority under the All Writs Act, 28
allowed to appeal”) (L. Hand, J.).                                 U.S.C. § 1651(a). Appellate courts review a district court's
                                                                   assertion of jurisdiction under the All Writs Act de novo. See,
   First, Intervenor participated in the proceedings below         e.g., United States v. Bravo-Diaz, 312 F.3d 995, 997 (9th Cir.
because she filed papers in opposition to Perry’s request that     2002); In re Prudential Ins. Co. of Am. Sales Practice Litig.,
the district court vacate her lien. Intervenor’s counsel also      261 F.3d 355, 363 (3d Cir. 2001).
attended the original sentencing hearing. Second, equities
favor permitting this appeal. There is a substantial question         The All Writs Act provides that “[t]he Supreme Court and
as to whether the district court had the authority to vacate the   all courts established by Act of Congress may issue all writs
lien because no MVRA provision specifically grants district        necessary or appropriate in aid of their respective jurisdictions
courts that right. Since Intervenor had an undisputed property     and agreeable to the usages and principles of law.” 28 U.S.C.
interest, the district court’s decision to revoke that interest    § 1651. The All Writs Act enables federal courts to issue
adversely affected Intervenor’s interests even though she did      such commands “as may be necessary or appropriate to
not participate as a party to the criminal proceeding. As          effectuate and prevent the frustration of orders it has
explained above, Intervenor proposed, by letter, that she          previously issued in its exercise of jurisdiction otherwise
transfer her lien to the district court’s fund to remove any       obtained.” United States v. N.Y. Tel., 434 U.S. 159, 172
impediment to Perry’s attempt to sell his assets, after which      (1977). The Supreme Court has also stressed, however, that
the court would resolve the legal issue of Intervenor’s            the All Writs Act does not authorize courts “to issue ad hoc
priority. The victims, albeit represented by Perry’s counsel,      writs whenever compliance with statutory procedures appears
declined Intervenor’s offer. Nevertheless, Intervenor made an      inconvenient or less appropriate.” Pa. Bureau of Corr. v.
attempt to solve the problem. Equity favors permitting this        United States Marshals Serv., 474 U.S. 34, 43 (1985).
appeal. Finally, Intervenor is not attempting to raise some        “Where a statute specifically addresses the particular issue at
sort of generalized policy grievance nor does she seek to          hand, it is that authority, and not the All Writs Act, that is
litigate someone else’s rights. See, e.g., Raines, 362 U.S. at     controlling.” Id.
22; Tileston, 318 U.S. at 46; Colo. Taxpayers Union, 963
F.2d at 1396; S.J. Groves, 920 F.2d at 757.                                                       A.

  Intervenor thus meets both the prudential and constitutional        Although Appellees cite two cases in which a court used
requirements for Article III standing.                             the All Writs Act in connection with a restitution order,
                                                                   neither decision helps us much with respect to the issues the
                                                                   parties presently litigate. First, Appellees cite United States
                                                                   v. Friedman, 143 F.3d 18 (1st Cir. 1998). In Friedman, the
No. 01-4265                       United States v. Perry     25    26    United States v. Perry                       No. 01-4265

district court, pursuant to the All Writs Act, ordered the         the victim lacked entitlement to the restitution award. Id. As
defendant to liquidate certain assets and deliver the proceeds     the court explained, “[d]espite the dearth of statutory
to the Marshals Service, but only “after all secured claims,       authority, it remains indisputable that [the victim] must repay
liens, and other costs associated with the real estate closing     the [defendant].” Id. Thus, the victim had no entitlement to
are paid.” Id. at 20. Unisource, a company not a victim of         the restitution, nor did the victim have a constitutionally-
the defendant’s crimes, claimed to hold an equitable lien on       recognized property right to the money. Neither Venneri nor
the defendant’s property. Id. Unisource did not receive any        Friedman addresses the situation presently before us.
proceeds from the sale of the defendant’s assets, however,
because the marshals confiscated the proceeds. Id. Unisource          At first glance, the All Writs Act seems to authorize a
then asked the district court for its share. Id. at 22. The        district court to issue any subsequent order in furtherance of
government argued that only victims may receive restitution,       an initial order as long as the initial order was lawful. As one
and that the court lacked authority under the VWPA to release      would expect, however, even if a court properly issues its
funds to Unisource stemming from the marshals’ seizure. Id.        initial order, it may not use the All Writs Act to issue a
The district court disagreed and paid Unisource. On appeal,        subsequent order to effectuate the first order if the subsequent
the First Circuit affirmed, finding that the court’s original      order is itself unconstitutional. See, e.g., United States v. City
order protected lien-holders and the All Writs Act gave the        of New York, 972 F.2d 464, 470 (2d Cir. 1992) (“Nor can the
court the authority to issue a further order to prevent the        All Writs Act confer on the courts the power to ignore the
frustration of its original order. Id.                             case or controversy requirement, which is rooted in Article III
                                                                   of the constitution's definition of judicial power.”); In re
  Other than the hopelessly vague proposition that district        Baldwin-United Corp. (Single Premium Deferred Annuities
courts may sometimes use the All Writs Act in relation to          Ins. Litig.), 770 F.2d 328, 340 (2d Cir. 1985) (“The All-Writs
restitution orders, it is unclear what Friedman tells us.          Act . . . cannot be used to circumvent or supersede the
Friedman has little to do with the scenario we presently           constitutional limitations of the Eleventh Amendment.”).
consider because no one argued in Friedman that the second         This is consistent with the text of the All Writs Act, which
order either conflicted with the VWPA or violated a                only authorizes courts to issue writs “agreeable to the usages
constitutional right.                                              and principles of law.” 28 U.S.C. § 1651. “[A]greeable to
                                                                   the usages and principles of law” also suggests that courts
   Second, Appellees cite United States v. Venneri, 782 F.         may not use the All Writs Act to issue a second order to
Supp. 1091 (D. Md. 1991), in which a district court vacated        effectuate an initial, lawful order if the second order works by
a defendant’s conviction by writ of error coram nobis because      violating some other statutory provision.
the defendant was originally convicted pursuant to a statute
later found unconstitutional. Id. at 1092. The defendant was                                      B.
originally ordered to pay restitution to one of his victims. Id.
The court considered whether it had jurisdiction under the All       This case involves two statutory provisions seemingly
Writs Act to direct the victim to repay restitution to the         operating in conflict. In its entirety, 18 U.S.C. 3664(m)(1)(B)
defendant. Id. Although the court noted the lack of statutory      states:
authority for such an order, it found that the All Writs Act
provided the necessary mechanism. Id. at 1094. Unlike the            At the request of a victim named in a restitution order,
present case, however, there was no dispute in Venneri that          the clerk of the court shall issue an abstract of judgment
No. 01-4265                           United States v. Perry         27    28    United States v. Perry                            No. 01-4265

  certifying that a judgment has been entered in favor of                  § 3664(f)(i). The MVRA never mentions pro rata
  such victim in the amount specified in the restitution                   distribution, but §§ 3664(f)(3)(A) and (i) appear to give trial
  order. Upon registering, recording, docketing, or                        courts the right to require reimbursement in that fashion. By
  indexing such abstract in accordance with the rules and                  definition, pro rata distribution means that no victim has
  requirements relating to judgments of the court of the                   priority, but a judgment lien is a device designed to give the
  State where the district court is located, the abstract of               lien-holder priority. In this sense, the statutory provisions
  judgment shall be a lien on the property of the defendant                appear to conflict.12
  located in such State in the same manner and to the same
  extent and under the same conditions as a judgment of a                                                    C.
  court of general jurisdiction in that State.
                                                                             One of the most basic canons of statutory interpretation is
This provision, which authorizes Intervenor’s lien, contains               that a more specific provision takes precedence over a more
no language giving the court any right to vacate a lien if it              general one. See, e.g., Green v. Bock Laundry Mach. Co.,
conflicts with the restitution order. Title 18 U.S.C.                      490 U.S. 504, 524 (1989) (stating that a general statutory rule
§ 3664(d)(2)(A)(v) references (m)(1)(B) by mandating that                  does not govern unless there is no more specific rule);
“[t]he probation officer shall, prior to submitting the                    Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976)
presentence report under subsection (a), to the extent                     (holding that the general venue provision of the Securities
practicable . . . provide notice to all identified victims of . . .        Exchange Act of 1934 does not trump the specific venue
the availability of a lien in favor of the victim pursuant to              provision of the National Bank Act); Y.S. v. Castro-Rocha,
subsection (m)(1)(B).”11                                                   323 F.3d 846, 851 (10th Cir. 2003) (“[A] fundamental canon
                                                                           of statutory interpretation holds that, when there is an
  Although the statute unambiguously allows victims to                     apparent conflict between a specific provision and a more
impose judgment liens in accordance with state law, the                    general one, the more specific one governs, regardless of the
statute gives sentencing courts significant flexibility to tailor          priority of the provisions' enactment.”) (citing Cal. ex rel.
restitution orders to particular circumstances. As 18 U.S.C.               Sacramento Metro. Air Quality Mgmt. Dist. v. United States,
§ 3664(i) explains, “[a] restitution order may direct the                  215 F.3d 1005, 1013 (9th Cir.2000)). As the Supreme Court
defendant to make a single, lump-sum payment, partial                      explained:
payments at specified intervals, in-kind payments, or a
combination of payments at specified intervals and in-kind                   The reason and philosophy of the rule is, that when the
payments.” The statute also clarifies that “[i]f the court finds             mind of the legislator has been turned to the details of a
that more than 1 victim has sustained a loss requiring                       subject, and he has acted upon it, a subsequent statute in
restitution by a defendant, the court may provide for a                      general terms, or treating the subject in a general manner,
different payment schedule for each victim based on the type                 and not expressly contradicting the original act, shall not
and amount of each victim's loss and accounting for the                      be considered as intended to affect the more particular or
economic circumstances of each victim.” 18 U.S.C.

                                                                                12
    11
                                                                                  Of course, had the district court structured an order that gave
       The record does not reveal whether this is how Intervenor learned   Intervenor priority, as opposed to a pro rata distribution, no co nflict
of her right to file a lien.                                               would exist.
No. 01-4265                        United States v. Perry    29    30    United States v. Perry                       No. 01-4265

  positive previous provisions, unless it is absolutely            ascertain whether a construction of the statute is fairly
  necessary to give the latter act such a construction, in         possible by which the question may be avoided.”); Hooper v.
  order that its words shall have any meaning at all.              California, 155 U.S. 648, 657 (1895) (“The elementary rule
                                                                   is that every reasonable construction must be resorted to, in
Radzanower, 426 U.S. at 153.                                       order to save a statute from unconstitutionality.”); cf. Murray
                                                                   v. The Charming Betsy, 2 Cranch (6 U.S.) 64, 118 (1804)
   The MVRA expressly references a victim’s right to a             (“[A]n act of Congress ought never to be construed to violate
judgment lien on two occasions, see 18 U.S.C.                      the law of nations if any other possible construction
§§ 3664(d)(2)(A)(v), (m)(1)(B), and, as recounted above,           remains.”) (Marshall, C.J.). A construction that permits
provides significant detail, see § 3664(m)(1)(B). In contrast,     district courts to destroy constitutionally protected property
the MVRA never mentions pro rata distribution. Rather, pro         interests without due process violates this precept if another
rata distribution is simply one alternative a court might adopt    reasonable construction is “fairly possible.” Crowell, 285
under the highly general and flexible grants of authority in 18    U.S. at 62.
U.S.C. §§ 3664(f)(3)(A) and (i). In accordance with the
“specific over general” canon of statutory construction, we           There is another “fairly possible” construction of the
are more inclined to read the lien provision as an exception to    statute. One might reasonably assume that Congress only
the trial court’s general authority to structure restitution       meant to allow states to record liens that reflect restitution
orders, rather than assuming that the more vague powers            orders, not liens that conflict with or exceed restitution orders.
Congress granted in 18 U.S.C. §§ 3664(f)(3)(A) and (i) are an      Consider again the language MVRA judgment lien provision,
exception to the very precise lien provision. This suggests        which states that, “[u]pon registering, recording, docketing,
that federal courts do not have the authority to vacate an         or indexing [the restitution order and judgment] in
already-existing judgment lien based on their right to enforce     accordance with the rules and requirements relating to
MVRA orders under the All Writs Act.                               judgments of the court of the State where the district court is
                                                                   located, the [restitution order and judgment] shall be a lien on
                              D.                                   the property of the defendant located in such State.” 18
                                                                   U.S.C. § 3664(m)1)(B) (emphasis added). The lien is then
   As already noted, the Supreme Court has made clear that         recognized and handled “in the same manner and to the same
we must construe statutes to avoid constitutional doubt when       extent and under the same conditions as a judgment of a court
it is reasonably possible to do so. DeBartolo Corp. v. Fla.        of general jurisdiction in that State.” Id. It seems more than
Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,           “fairly possible” that Congress meant for victims to obtain
575 (1988) (defining the canon of constitutional doubt as one      judgment liens in a manner that complied with the relevant
that requires courts, “where an otherwise acceptable               state’s procedure.
construction of a statute would raise serious constitutional
problems, . . . [to] construe the statute to avoid such problems     No one can get a lien for more than the value of the
unless such construction is plainly contrary to the intent of      supporting judgment. Yet Ohio (perhaps erroneously) gave
Congress”); Crowell v. Benson, 285 U.S. 22, 62 (1932)              Intervenor such a lien, apparently without regard for the
(“When the validity of an act of the Congress is drawn in          underlying judgment and restitution order authorizing only
question, and even if a serious doubt of constitutionality is      pro rata distribution. Ohio may have erred, and Perry could
raised, it is a cardinal principle that this Court will first      have moved in the Ohio judiciary, rather than the federal
No. 01-4265                        United States v. Perry    31    32   United States v. Perry                       No. 01-4265

district court, to vacate or modify the lien. Such an action by    invalidate a victim’s judgment lien and impose unsecured pro
Perry protects the due process rights associated with the lien,    rata distribution, then the MVRA would read as though the
because under Ohio law, judgment liens receive constitutional      provision granting victims the right to judgment liens did not
protections, see Central Trust Co. v. Jensen, 616 N.E.2d 873,      exist. Victims could obtain judgment liens only at the
876 (Ohio 1993), and a judgment by an Ohio state court             sentencing court’s unlimited discretion.
vacating a judgment lien is a final appealable order,
see Roach v. Roach, 132 N.E.2d 742, 744 (Ohio 1957). This            The proposed alternative discussed above—allowing
interpretation of the law protects Intervenor’s due process        victims to challenge an allegedly improper lien in state court
rights and is “fairly possible” given the statutory language,      rather than allowing a district court to invalidate it
further suggesting that federal courts do not have the authority   entirely—would not render the judgment lien provision
to vacate an already-existing judgment lien based on their         superfluous. At minimum, 18 U.S.C. § 3664(m)(1)(B) would
right to enforce MVRA orders under the All Writs Act.              compel state courts to approve judgment liens consistent with
                                                                   restitution orders to the extent allowed under state law,
                              E.                                   thereby giving the victim a security interest in the defendant’s
                                                                   property, even if (because of the restitution order’s language)
  We may not construe a statute in a manner that renders part      that security interest is not permitted to rise above the
of the law superfluous. See, e.g., Regions Hosp. v. Shalala,       victim’s pro rata share. Thus, 18 U.S.C. § 3664(m)(1)(B)
522 U.S. 448, 467 (1998); United States v. Nordic Vill., Inc.,     would still serve a purpose.
503 U.S. 30, 36 (1992); Fed. Election Comm'n v. Nat’l
Conservative Political Action Comm., 470 U.S. 480, 486                The rule against surplusage further supports the conclusion
(1985). More than a century ago, the Supreme Court                 that federal courts do not have the authority to vacate an
explained:                                                         already-existing judgment lien based on their right to enforce
                                                                   orders under the All Writs Act.
  We are not at liberty to construe any statute so as to deny
  effect to any part of its language. It is a cardinal rule of                                   F.
  statutory construction that significance and effect shall,
  if possible, be accorded to every word. As early as in             Finally, Appellees argue that accepting Intervenor’s
  Bacon's Abridgment, sect. 2, it was said that 'a statute         position would create a “race to the courthouse,” i.e., if
  ought, upon the whole, to be so construed that, if it can        victims can obtain judgment liens despite a court order
  be prevented, no clause, sentence, or word shall be              requiring pro rata distribution, then the victim fortunate
  superfluous, void, or insignificant.' This rule has been         enough to file the first lien has the greatest chance of
  repeated innumerable times.                                      recovery, and victims will have to compete for priority.

Wash. Market Co. v. Hoffman, 101 U.S. 112, 115-16 (1879).             The MVRA is not optimally structured. Cf. United States
Thus, any interpretation of the MVRA that makes one if its         v. Locke, 471 U.S. 84, 95 (1984) (acknowledging that, for the
provisions irrelevant is presumptively incorrect.                  statute under consideration, “Congress might have acted with
                                                                   greater clarity or foresight”); United States v. Jackson, 824
  Appellees’ position, however, has exactly this effect. If one    F.2d 21, 25 (D.C. Cir. 1987) (admitting that the statute under
asserts that the district court always has the authority to        consideration was “[l]amentably . . . not meticulously
No. 01-4265                            United States v. Perry         33     34   United States v. Perry                       No. 01-4265

drafted”). Regardless, the “race to the courthouse” is a far-                                              IV.
fetched concern. District courts have discretion to issue all
sorts of orders that would interfere with the race to the                      Those who would disagree must demonstrate not just that
courthouse: pure pro rata distribution, distribution to the                  the district court had the authority to issue an order altering
neediest victims first, distribution to the most seriously                   (or revoking) a judgment lien, but that the order was
injured first, pro rata within classes of victims, and so forth.             substantively correct.
See 18 U.S.C. §§ 3664(f)(3)(A) and (i). In all cases, victims
who attempt to secure judgment liens beyond what the                           The All Writs Act only allows the district court to issue an
sentencing court authorized should fail to have their liens                  order attempting to effectuate its earlier order. N.Y. Tel., 434
recognized by the state, and if the liens are recognized                     U.S. at 172. Therefore, assuming the district court had
anyway, victims could attempt to vacate them in appropriate                  authority to vacate Intervenor’s judgment lien, that authority
state court proceedings. Victims would not scramble to                       only extended to the part of Intervenor’s lien that violated the
perfect liens that should not (and thus probably cannot) be                  court’s initial pro rata distribution order. Defendant owed
perfected under state law, and would remain subject to                       Intervenor $92,000. Assume, hypothetically, that there were
challenge.13                                                                 only two other victims: one (Victim A) owed $46,000, and
                                                                             another (Victim B) owed $138,000. Under pro rata
  The feared “race to the courthouse” is specious and three                  distribution, Victim A would receive approximately
major canons of statutory construction suggest that a victim                 seventeen cents (one-sixth) of every dollar recovered,
has a right to a secured interest in the defendant’s property                Intervenor would receive approximately thirty-three cents
despite other less precise statutory language that Appellees                 (one-third) of every dollar recovered, and Victim B would
claim allows district courts to vacate judgment liens. A court               receive fifty cents (one-half) of every dollar recovered. If,
may not use the All Writs Act to issue a second order to                     continuing the hypothetical, Intervenor obtained a lien against
enforce an initial order when the second order renders                       the defendant’s house for the full $92,000, that conflicts with
statutory language superfluous and raises constitutional                     pro rata distribution.         However, vacating the lien
questions. Consequently, the district court did not have the                 completely—as the district court did in this case—also
authority under the All Writs Act, 28 U.S.C. § 1651(a), to                   conflicts with pro rata distribution, because pro rata
vacate Intervenor’s judgment lien.                                           distribution would entitle Intervenor to one-third of anything
                                                                             recovered. Again assuming the All Writs Act affords the
                                                                             district court has the power to alter judgment liens, the court
                                                                             would only have the authority to modify the hypothetical
                                                                             Intervenor’s lien to the extent it would have entitled her to
                                                                             more than one-third of the defendant’s assets’ value.
                                                                               Although the math is much more complex in the case
    13
        Intervenor acquired a lien for an amount greater than her pro rata
                                                                             presently before us than the calculations in the hypothetical,
interest but, as noted, Ohio may have erred and Perry can move to vacate     the principle is exactly the same. The court below did not
that lien in the Ohio courts. One might conceive of cases in which the       merely vacate the portion Intervenor’s statutorily-authorized
availab ility or function of state lien law creates problems, but this       judgment lien that conflicted with the initial pro rata order,
possibility is a matter only Congress can address by amending the statute.   the district court vacated the entire judgment lien. Thus, the
No. 01-4265                       United States v. Perry      35    36   United States v. Perry                      No. 01-4265

second order actually exceeded the first order’s                                        _________________
scope—assuming victims have any rights at all under the
statute’s judgment lien provision, Intervenor had the right to                              DISSENT
a judgment lien large enough to cover her pro rata share. In                            _________________
this sense, the order vacating the judgment lien did not
correctly apply the All Writs Act authority Appellees                  JULIA SMITH GIBBONS, Circuit Judge, dissenting. I
mistakenly believes the district court possesses.                   dissent because I believe that Hossler lacks standing to
                                                                    contest the district court’s order releasing her judgment lien.
                       CONCLUSION                                   The district court was enforcing the terms of its prior
                                                                    restitution order, which was entered at sentencing in a
  Both Appellees and the dissent misconstrue Intervenor’s           criminal case in which Hossler was not a party. The
two compelling arguments for standing, either one of which          majority’s broad interpretation of the MVRA would allow
provides sufficient basis for us to address the merits. With        victims to appeal numerous decisions relating to the
regard to the merits, the district court had no authority under     enforcement of restitution orders and would lead to victims
the All Writs Act to vacate Intervenor’s statutorily authorized     participating in criminal proceedings in a manner that
judgment lien. Anyone wishing to argue that the lien                Congress never intended when it enacted the MVRA. Hossler
conflicted with the district court’s pro rata order had the right   has not been deprived of a constitutionally protected right to
to dispute the lien in the Ohio courts.                             receive restitution; she has been deprived of the opportunity
                                                                    to enforce a restitution order in a manner that was contrary to
  For all the aforementioned reasons, we VACATE the order           what was intended by the district court and in a way that
releasing Intervenor’s judgment lien.                               harms the rights of Perry’s other victims to receive the
                                                                    restitution to which they are also entitled.
                                                                      Standing is a threshold issue in every case before a federal
                                                                    court. United States v. McVeigh, 106 F.3d 325, 334 (10th Cir.
                                                                    1997). To establish standing, plaintiffs must show that “their
                                                                    claimed injury is personal, particularized, concrete, and
                                                                    otherwise judicially cognizable.” Raines v. Byrd, 521 U.S.
                                                                    811, 820 (1997) (emphasis added). Standing involves both
                                                                    constitutional requirements, which are based on the case or
                                                                    controversy clause in Article III, and prudential limitations,
                                                                    which are crafted by the courts. Lujan v. Defenders of
                                                                    Wildlife, 504 U.S. 555, 559-60 (1992); McClure v. Ashcroft,
                                                                    335 F.3d 404, 408 (5th Cir. 2003). “[T]o satisfy Article III’s
                                                                    standing requirements, a plaintiff must show (1) it has
                                                                    suffered an ‘injury in fact’ that is (a) concrete and
                                                                    particularized and (b) actual or imminent, not conjectural or
                                                                    hypothetical; (2) the injury is fairly traceable to the
                                                                    challenged action of the defendant; and (3) it is likely, as
No. 01-4265                         United States v. Perry      37    38   United States v. Perry                       No. 01-4265

opposed to merely speculative, that the injury will be                   Prior to the MVRA’s enactment in 1996, courts
redressed by a favorable decision.” Friends of the Earth, Inc.        consistently held that victims did not have standing to appeal
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81            a district court’s decision modifying or enforcing a restitution
(2000) (citing Lujan, 504 U.S. at 560-61). Beyond the                 order. See Mindel, 80 F.3d at 397 (holding that beneficiary of
constitutional requirements in Article III, “the federal              criminal restitution order lacked standing to challenge
judiciary has also adhered to a set of prudential principles that     modification of sentence to rescind restitution order); United
bear on the question of standing.” Valley Forge Christian             States v. Johnson, 983 F.2d 216 (11th Cir. 1993). These
Coll. v. Americans United for Separation of Church and                courts have noted that while a criminal restitution order
State, Inc., 454 U.S. 464, 474 (1982). One of these prudential        resembles a judgment for the benefit of the victim, restitution
requirements is that the interest of a plaintiff seeking standing     is penal, not compensatory. Kelly v. Robinson, 479 U.S. 36,
under a particular statutory provision must be “within the            52 (1986). Thus, “[t]he direct, distinct, and palpable injury in
zone of interests protected by the law invoked.” United States        a criminal sentencing proceeding plainly falls only on the
v. Mindel, 80 F.3d 394, 397 (9th Cir. 1996) (quoting Allen v.         defendant who is being sentenced . . . and he alone suffers the
Wright, 468 U.S. 737, 751 (1984)). Under the zone of                  direct consequences.” Grundhoefer, 916 F.2d at 791; see also
interests test, plaintiffs lack standing if their interests are “so   Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (finding
marginally related to or inconsistent with the purposes               that a private citizen generally lacks standing “to contest the
implicit in the statute that it cannot reasonably be assumed          policies of the prosecuting authority when he himself is
that Congress intended to permit the suit.” United States v.          neither prosecuted nor threatened with prosecution”).
Grundhoefer, 916 F.2d 788, 792 (2d Cir. 1990) (quoting                Because restitution is part of criminal sentencing and is penal
Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)).               in nature, victims of crime do not suffer an “injury in fact”
                                                                      when a district court modifies or terminates a restitution
   The district court granted the Perry Investors’ motion to          order. See Mindel, 80 F.3d at 397; Johnson, 983 F.2d at 221
vacate Hossler’s lien upon finding that the lien would give           United States v. Schad, No. 97-5003, 1998 WL 193129, at *2
preferential treatment to Hossler. At sentencing, Perry               (10th Cir. April 22, 1998) (holding that a crime victim lacked
expressed a strong desire to make restitution, and his counsel        standing to appeal the district court’s order terminating the
described a plan for selling his property and liquidating his         victim’s right to continue garnishing the defendant’s wages
assets in order to pay his restitution obligations. The district      pursuant to a criminal restitution order).
court found that Perry’s restitution payments “should be made
to the Clerk of Courts,” who would then “forward the money               As the majority opinion notes, Mindel, Johnson, and Schad
to the victims pro rata until the full amount is paid.” In            all involved appeals from orders rescinding or modifying
granting the Perry Investors’ motion to vacate Hossler’s              restitution orders. In Johnson, for example, the district court
judgment lien, the district court noted that its restitution order    rescinded its prior restitution order when the defendant
“unequivocally required that restitution be distributed to all        became delinquent in her restitution payments that were
the Perry Investors pro rata,” and concluded that Hossler’s           supposed to be made to the victim bank in monthly
lien “would give preferential treatment to only one of Perry’s        installments. Id. at 218. The bank appealed the district
numerous victims – which is plainly inconsistent [with the            court’s order rescinding the restitution obligation, and the
court’s prior restitution order].” For both constitutional and        Eleventh Circuit held that the bank lacked standing because
prudential reasons, Hossler lacks standing to challenge the           it had not suffered a direct injury adequate to satisfy Article
district court’s order.                                               III’s constitutional requirements. Id. at 221. But just as a
No. 01-4265                             United States v. Perry          39     40       United States v. Perry                             No. 01-4265

victim does not suffer an injury in fact when a district court                 prudential limitations counsel against according Hossler
modifies or rescinds a restitution order, Hossler has not                      standing to challenge the district court’s order in this case.
suffered an injury in fact in this case because the district                   Critical to the issue of Hossler’s standing is the context in
court’s decision vacating her judgment lien was in essence                     which her appeal occurs: Hossler is appealing an order
enforcing the terms of its prior restitution order. The fact that              entered in a criminal case in which she was not a party. If the
the district court in this case vacated Hossler’s judgment lien                Perry Investors had gone to state court and filed a lawsuit
instead of modifying or rescinding its restitution order does                  seeking to vacate her judgment lien, Hossler certainly would
not mean that she has somehow been injured in a more                           have standing to appeal from any subsequent decision by the
concrete or particularized way than the plaintiffs in Mindel                   state court, but that is not what is happening here. Nothing in
and Johnson. The majority opinion asserts that the MVRA                        the language or legislative history of the MVRA indicates that
does not provide an “express means by which a district court                   Congress intended to provide victims with a private remedy
can alter a victim’s lien rights post hoc,” but presumably a                   to sue or appeal restitution decisions made in the context of
district court does exactly that when it rescinds or modifies                  criminal cases in which the victims were not parties.2
restitution orders. However, prior cases have held that in
those circumstances, victims have not suffered injury in fact                     As the majority notes, a comparison between the MVRA
and do not have standing to appeal. Similarly, Hossler has                     and its predecessor, the VWPA, is relevant here because
not suffered an injury in fact because the district court denied               courts have held that victims do not have standing to appeal
her the opportunity to make an end run around the schedule                     a district court’s modification or rescission of a restitution
set forth in the court’s previous restitution order.1                          order under the VWPA. The majority concludes that the
                                                                               MVRA reflects a more “pro-victim” attitude, primarily
  Even if Hossler has suffered an injury in fact different from                because restitution is now mandatory for certain crimes under
that suffered by the victim bank in Johnson, for example,                      the MVRA, and district courts may no longer consider a
                                                                               defendant’s financial circumstances when determining the
                                                                               amount of restitution to be paid. Even if Hossler has a right
    1
                                                                               to restitution because restitution is now mandatory under the
       W hile the majority notes that the MVR A pro vides a mechanism for      MVRA, this right was not denied when the district court
victims to obtain judgment liens in § 3664(m)(1)(B), it is worth noting        entered its order vacating her judgment lien. Hossler retained
that the MVR A also contemplates the authority of district courts to require   her right to restitution in the manner and amount set forth in
reimbursement in a particular manner – whether in lump-sum payments,
partial payments at specified intervals, in-kind payments, or some             the district court’s original restitution order. She was merely
combination of the above. 18 U .S.C. § 366 4(f)(3 )(A). D istrict courts       denied the opportunity to enforce the district court’s
may also favor one victim over another in crafting a restitution order,        restitution order in a manner that was contrary to what was
based on “the type and am ount o f each victim’s loss and accounting for       intended by the district court. In its zeal to protect Hossler’s
the econ omic circum stances of each victim.” § 36 64(i). A restitution
order creating a priority of victims for p ayment would certainly impact a
victim’s right to obtain a judgment lien under § 3664(m)(1)(B) and w ould           2
likely result in situations where a victim desires to challenge the district         In fact, it is telling that Hossler has never formally intervened
court’s order of priority. These victims, like Hossler, have not suffered      because no mechanism exists for a private citizen to intervene in a
injury in fact and should not be permitted to appeal such decisions. By        criminal case. T he ab sence of such a mec hanism for intervention is
opening the do or to victims like Hossler, the majority also opens the door    further evidence that Congress d id not contemplate that victim s would
to other victims unhappy with the terms of a district court’s restitution      participate in criminal cases as parties with standing to appeal restitution
order.                                                                         orders.
No. 01-4265                               United States v. Perry           41     42    United States v. Perry                       No. 01-4265

judgment lien, the majority makes no mention of Perry’s                           intended to extend standing to criminal victims in light of
other victims, who presumably also have a right to receive                        those decisions and its decision to remove victims from the
restitution under the provisions of the MVRA and who will be                      enforcement provision.
denied that right if Perry is unable to sell his remaining assets
due to Hossler’s judgment lien.                                                      While the legislative history of the MVRA indicates that
                                                                                  Congress intended mandatory restitution to be one means by
   In fact, the MVRA has removed victim discretion to                             which the criminal justice system could be reformed into a
enforce restitution orders; enforcement of such orders now                        system that is more responsive to the needs of crime victims,
rests exclusively with the United States. 18 U.S.C.                               the legislative history also evinces a Congressional intent to
§ 3664(m)(1)(A). In this respect at least, the MVRA is less                       streamline the administration of restitution within the criminal
“pro-victim” than the predecessor VWPA. Prior to 1996, 18                         justice system:
U.S.C. § 3663 provided that an order of restitution could be
enforced by the United States and “by the victim named in the                       The procedures contained in this section are intended to
order to receive the restitution in the same manner as a                            provide a streamlined process for the determination of
judgment in a civil action.” Under this statutory scheme,                           both the amount of restitution owed to each victim and
either the United States or the victim could seek to enforce an                     the terms of repayment based on a reasonable
order of restitution. This provision was amended, and                               interpretation of the defendant’s economic
pursuant to the new legislation in the MVRA, an order of                            circumstances. The committee believes that the need for
restitution is now enforceable only by the United States. It is                     finality and certainty in the sentencing process dictates
worth noting that this change was enacted after several circuit                     that this determination be made quickly, but also
courts had concluded that victims did not have standing to                          recognizes that justice requires that this particular aspect
challenge restitution orders.3 It seems unlikely that Congress                      of the criminal sentence be subject to review in the light
                                                                                    of changed circumstances. The committee believes that
                                                                                    restitution must be considered a part of the criminal
                                                                                    sentence, and that justice cannot be considered served
    3
       W hile this court has not issued any published opinions on the issue         until full restitution is made.
of a victim’s standing to appeal a restitution order, it briefly discussed the
issue in an unp ublished op inion. Un ited States v. C urtis, No. 99-5574,        S. Rep. 104-179, 1996 U.S.C.C.A.N. 924, 933 (emphasis
2000 WL 145183 (6th C ir. Feb. 1, 2000). In Curtis, the defendant                 added). It is hard to see how the goal of streamlining the
appealed a district court order denying his motion to end interest charges
on his ord er of restitution. Id. at *1. The motion had been filed in an          restitution process is served by allowing victims to intervene
attempt to force a finance com pany who had purchased the acco unt to             and enforce restitution orders in ways that are contrary to
cease charging interest on the defendant’s restitution debt and to restore        what was intended by the district court at sentencing.
any interest already charged on his deb t. Id. In affirming the district
court’s judg men t, the court noted that the finance company was never a             In support of its position that Hossler has met the prudential
party to Curtis’s criminal case, an d that the district co urt had no authority   requirements for standing in this case, the majority notes that
over the finance com pany. Id. The court added: “Even the victim itself,
as a non-party to the criminal case, would not have standing to challenge         “the equities favor permitting this appeal” because “[t]here is
the restitution order.” Id. (citing Mindel, 80 F.3d at 397 ). According to        a substantial question as to whether the district court had the
the court, the victim “would have to bring a civil action to enforce the          authority to vacate the lien because no MVRA provision
restitution order.” Id. (citing United States v. Diamond, 969 F.2d 961,           specifically grants district courts that right.” This analysis
969 (10 th Cir. 1992)).
No. 01-4265                       United States v. Perry     43

confuses the issue of Hossler’s standing with the issue of
whether the district court had the authority to vacate a state
court judgment lien. These are two separate issues. Hossler
does not have standing merely because she does not like the
district court’s order or because we do not like the district
court’s order. Prudential limitations on standing require that
Hossler’s interests be within the zone of interests
encompassed by the MVRA. Permitting Hossler’s appeal in
this case will provide victims with unprecedented ability to
intervene in criminal restitution orders, even if the effect of
their intervention is to the detriment of other victims and to
the desire for finality and certainty in the restitution process
that was articulated by the drafters of the MVRA. Because
Hossler’s interests are so “inconsistent with the purposes
implicit in the [MVRA] that it cannot reasonably be assumed
that Congress intended to permit” this lawsuit, I would
dismiss her appeal for lack of standing and decline to address
whether the district court properly released her judgment lien.
