In re Fisher

In re Fisher

Opinion

 [*647]  PATRICK E. HIGGINBOTHAM, Circuit Judge:

The petitioners James R. Fisher and Odyssey Residential Holdings, LP (hereinafter, collectively, "Fisher") seek a writ of mandamus directing the district court to recognize that Fisher is a crime victim within the meaning of the Crime Victims' Rights Act ("CVRA"), 18 U.S.C. § 3771(d)(3), and the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A. We deny the petition because our current understanding of the record persuades  [**2] us that the district court was not clearly and indisputably wrong to find that Fisher failed to prove that he had been directly and proximately harmed by Ronald W. Slovacek's criminal conduct. We also deny each of Fisher's pending motions, for reasons we explain below.

This mandamus proceeding arises out of the public-corruption prosecution centering around former Dallas City Council Member Don Hill. At issue here is a conviction arising out of Count 10 of the superseding indictment in this matter, which alleges that Hill and various other members of Dallas city government conspired to solicit and accept things of value in exchange for providing official assistance to the defendant Brian Potashnik in his pursuit of City approval and funding for various affordable-housing-development projects. One of the things of value Hill and his coconspirators solicited was the award of construction subcontracts on Potashnik's developments to the defendant Ronald Slovacek. A jury eventually convicted Slovacek of this conspiracy charge.

The petitioner in this proceeding, Fisher, was a competitor of Potashnik's who was seeking City approval of his own affordable-housing developments. Fisher and his  [**3] company spent approximately $1.8 million on two such projects. Neither of those projects ever received approval or financing from the City. After Slovacek was found guilty of participating in the criminal conspiracy, Fisher sought restitution. He argued that the conduct of Slovacek and his coconspirators had rendered his $1.8 million investment worthless. The district court found that Slovacek's criminal conduct was not a direct and proximate cause of Fisher's $1.8 million loss and declined to order restitution.

] The CVRA gives"[a] crime victim . . . [t]he right to full and timely restitution as provided in law." ¹ A crime victim is any person who has been "directly and proximately harmed as a result of the commission of a Federal offense." ² ] Where, as here, a district court has denied a request for restitution under the CVRA, the putative victim may petition the court of appeals for a writ of mandamus. ³ In In re Dean, we held that a writ of mandamus may issue under the CVRA:

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