United States of America v. Anthony P. Perry

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

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No. 01-4265 United States v. Perry 3
FACTS AND PROCEDURAL HISTORY
On January 25, 2001, Defendant Anthony Perry pleaded
guilty to three counts related to securities fraud. The court
sentenced Perry to a two-year prison sentence and ordered
Perry to make restitution in the amount of $715,078.40 to his
victims. Intervenor, a ninety-one year -old woman, is one of
Perry’s victims. The restitution order required Perry to
reimburse her $92,000. The district court, however, ordered
Perry to make all payments to the clerk’s office so that the
clerk could “forward the money to victims pro rata until the
full amount is paid.”
David Bettiker, Donna Bettiker, James A Bruggeman,
Henry Bruno, Mary Bruno, Wilma R. Cottrell, Lloyd P.
Greenlese, Dorothy A. Nicolard, Donald L. Nicolard, Thomas
W. Ozbolt, Julia A. Ozbolt, Robert Serpentini, Amelia
Serpentini, Jayne L. Simo, Arnold W. Stanley, Carl
Weisenbach, Eleanor M. Weisenbach, and Russell E.
Workman (collectively, the “Perry Investors”) are also
victims included in the restitution order. The Perry Investors
appear before us as Appellees.
The restitution order did not specify an order of priority
among the victims. Pursuant to the Mandatory Victims
Restitution Act (MVRA), 18 U.S.C. § 3664(m)(1)(B),
Intervenor obtained a judgment lien on Perry’s Wadsworth,
Ohio, real property. She recorded the lien in Medina County,
Ohio, on August 7, 2001.
In September of 2001, Perry entered into a land contract
and asset purchase agreement with Dawn and Boyd Ferrebee,
prospective buyers of the Wadsworth property. Perry owns
a corporation as well, and Perry also planned to sell the
business’ assets to the Ferrebees as well in an asset purchase
agreement that would close with the closing of the land
contract. The closing of the asset purchase agreement was
contingent on the purchase of the land contract. If the land
4 United States v. Perry No. 01-4265
1Interveno r’s counsel notes that Interveno r proposed, by letter, that
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
priority. The Perry Investors refused her offer.
2As discussed further below, Perry’s civil attorney seems to have a
significant conflict of interest because he represe nts both Perry and his
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.
contract failed to close, the asset purchase agreement would
fail to close as well.1
Perry’s civil attorney then moved to release Intervenor’s
lien on behalf of the other victims.2 In findings and orders
dated October 25, 2001, and November 5, 2001, the district
court granted the motion and vacated the lien. Intervenor
filed her notice of appeal on November 28, 2001.
After the district court vacated the lien, the land contract
and asset purchase agreement closed. Perry turned the
$45,000 he received over to the district court, which disbursed
the money proportionately to all investors, including
Intervenor.
On December 28, 2001, the government moved to dismiss
the appeal for want of jurisdiction, arguing that Intervenor
lacked standing to appeal the district court’s order and that
Intervenor’s appeal was untimely. Intervenor opposed the
motion. On February 4, 2002, we ordered the parties to
address both the standing and timeliness issues in their briefs.
DISCUSSION
Before reaching the merits, we must consider whether (1)
we lack jurisdiction because of Intervenor’s allegedly
untimely filing; or (2) Intervenor lacks standing to prosecute
this appeal.

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

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

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

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No. 01-4265 United States v. Perry 11
Orders issued without legal basis, conflicts of interest, and
generally mysterious conduct reflect exactly the sort of sloppy
adjudication that a thorough district court proceeding, i.e., due
process, is meant to avoid. Of course, it may be that nothing
untoward occurred below. Process can vindicate superficially
questionable behavior just as easily as it can uncover
impropriety in seemingly ordinary activity. We would raise
potentially serious due process issues by interpreting the
MVRA, when applied to this case, as not authorizing an
appeal so that this Court can determine whether the district
court handled matters properly. Particularly in light of the
legislative history, it would make sense to read the statute in
a manner that will allow Intervenor to vindicate (or attempt to
vindicate) her constitutionally recognized property interest.
Our thesis is simple: A judgment lien is a constitutionally
protected property right. That is undisputed. Congress may
not make a law that interferes with constitutionally protected
property rights without that law being subjected to
meaningful judicial scrutiny. We must interpret the
provisions of the MVRA in a manner that avoids unwarranted
constitutional problems.
B.
Article III affords standing to non-parties for the purposes
of appeal in some circumstances. Yniguez v. Arizona, 939
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).
12 United States v. Perry No. 01-4265
5Other 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 . 1942).
1.
Bryant v. Yellen, 447 U.S. 352 (1980), is a leading example
of a non-party appeal.5 Bryant involved a federal statute
governing the allocation of irrigation waters in the West
meant to benefit smaller farmers by restricting access to the
water to farmers holding no more than 160 acres of land. Id.
at 368 n.19. The United States sued a California irrigation
agency to force it to comply with the federal statute. Id. at
366. The district court found that the statute did not apply to
certain lands in California, owned in parcels larger than 160
acres, that had vested rights to irrigation waters. Id. The
government did not appeal this decision. Id. Even though the
government declined to appeal, the Supreme Court
unanimously recognized the standing of a group of
farmworkers to intervene and appeal the decision. Id. at 366-
68. The Court reached this conclusion because the
intervenors “had a sufficient stake in the outcome of the
controversy to afford them standing to appeal.” Id. at 368.
In Linda R.S. v. Richard D., 410 U.S. 614 (1973), the Court
considered whether a non-party had standing to challenge the
government’s decision to apply a law in a particular manner.
Id. In Linda R.S., the appellant, the mother of an illegitimate
child, sued to enjoin the local district attorney from failing to
prosecute the father for refusing to pay child support. Id. The
district attorney generally prosecuted delinquent fathers of

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No. 01-4265 United States v. Perry 13
6Although the Lind a R.S. decision never reached the merits, the
Court recognized th e rights of illegitimate children three years later.
See Matthew v. Lucas, 427 U.S. 495 , 506 (1967) (subjecting official
distinctions based o n legitimacy to intermed iate scrutiny).
legitimate children but not those of illegitimate children. Id.6
The Supreme Court found the petitioner lacked standing,
albeit in language that helps clarify the standing issues in this
case. See id. at 617-19.
The Court held that, “appellant has failed to allege a
sufficient nexus between her injury and the government
action which she attacks to justify judicial intervention.” Id.
at 617-18. The Court conceded that the lack of child support
meant that appellant suffered an injury, but stressed that
“‘[t]he party who invokes [judicial] power must be able to
show . . . that he has sustained or is immediately in danger of
sustaining some direct injury as the result of [a statute’s]
enforcement.’” Id. at 618 (citing Massachusetts v. Melon,
262 U.S. 447, 488 (1923)) (emphasis added in Linda R.S.).
The Court noted that the “appellant has made no showing that
her failure to secure support payments results from the
nonenforcement” of the child support statute; rather, “if
appellant were granted the requested relief, it would result
only in the jailing of the child’s father. The prospect that
prosecution will, at least in the future, result in payment of
support can, at best, be termed only speculative.” Id. Thus,
the Court emphasized that the proposed remedy (arrest)
would not redress the injury (lack of child support). Stated
differently, the injury (lack of child support) was not traceable
to the alleged impropriety (non-prosecution). As the Court
concluded, “[c]ertainly the ‘direct’ relationship between the
alleged injury and the claim sought to be adjudicated, which
previous decisions of this Court suggest is a prerequisite to
standing, is absent in this case.” Id.
14 United States v. Perry No. 01-4265
2.
The Court decided Linda R.S. thirty years ago, and the
Court has since developed the “direct relationship” standing
requirement into two more precise sub-requisites;
“redressability,” and “fairly traceable.” See, e.g., Whitmore
v. Arkansas, 495 U.S. 149, 155 (1990); Simon v. E. Ky.
Welfare Rights Org., 426 U.S. 26, 38 (1976). In its first use
of the specific phrase “fairly traceable,” the Supreme Court
explained that standing requires that “the injury is indeed
fairly traceable to the defendant's acts or omissions.” Village
of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S.
252, 261 (1977) (citing, inter alia, Linda R.S., 410 U.S. at
617). The Court has described “redressability” as the causal
connection between the injury and the relief sought. See
Allen v. Wright, 468 U.S. 737, 752 (1984) (explaining that
redressability depends on whether “the prospect of obtaining
relief from the injury as a result of a favorable ruling is too
speculative”).
Ultimately, in Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464
(1982), the Supreme Court rearticulated its prior standing
decisions in a three-part test for standing: someone has
standing if he or she (1) suffers and injury in fact that (2) is
fairly traceable to the alleged misconduct and (3) redressable
by the relief sought. Id. at 472; see also Allen, 468 U.S. at
751 (“A plaintiff must allege personal injury fairly traceable
to the defendant's allegedly unlawful conduct and likely to be
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
order.” Given that the Supreme Court has held that such
abstract injuries as “aesthetic harm,” see United States v.
SCRAP, 412 U.S. 669, 678 (1973), and “stigmatization,” see

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No. 01-4265 United States v. Perry 15
Heckler v. Mathews, 465 U.S. 728, 739-40 (1984), qualify as
constitutionally cognizable injuries, it is hard to accept that an
inadequate restitution order (conceivably depriving someone
of thousands of dollars) would not constitute an injury in fact
when the statute has authorized restitution. If victims lack
standing to challenge restitution orders, the justiciability
defect has much more to do with the redressability and “fairly
traceable” prongs of the standing test than with a lack of an
injury in fact.
First, the dissent cites United States v. Mindel, 80 F.3d 394
(9th Cir. 1996), in which the defendant attempted to appeal
the district court’s decision to rescind a judgment it
previously entered pursuant to the VWPA with regard to the
disposition of the defendant’s property. Id. at 395-96. Next,
the dissent discusses United States v. Johnson, 983 F.2d 216
(11th Cir. 1993), which involved a bank attempting to appeal
the district court’s decision to rescind a restitution order
issued pursuant to the VWPA. Id. at 218. Third, the dissent
references United States v. Schad, No. 97-5003, 1998 WL
193129, *1 (10th Cir. Apr. 22 1998), an unpublished order
that considered whether a victim could participate as a party
to obtain a garnishment order. Id. at *1. Finally, the dissent
cites one of this Court’s unpublished Rule 34 orders, United
States v. Curtis, No. 99-5574, 2000 WL 145183, *1 (6th Cir.
Feb. 1, 2000). The order noted that “the victim, as a non-
party to the criminal case, would not have standing to
challenge the restitution order.” Id. This standing remark
was entirely tangential to Curtis, which involved a
defendant’s appeal of a district court order denying his
request to end interest charges on a restitution order. Id.
Curtis did not involve a non-party.
From the outset, none of the cases cited involve the MVRA.
Curtis never mentions the MVRA because Curtis has little to
do with the present issue, and courts decided Mindel,
Johnson, and Schad before Congress implemented the
16 United States v. Perry No. 01-4265
7Although 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.
MVRA.7 Schad relied largely on the reasoning in both
Mindel and Johnson, see Schad, 1998 WL 193129, *2, and
Mindel primarily on Johnson, see Mindel, 80 F.3d at 397.
Johnson, in turn, depends extensively on VWRA’s legislative
history, see Johnson, 983 F.2d at 220, which the MVRA has
now superseded.
Notably, Johnson also gains support from Kelly v.
Robinson, 479 U.S. 36 (1986), in which the Supreme Court
held that restitution obligations imposed as probation
conditions are not dischargable in bankruptcy proceedings.
See Johnson, 983 F.2d at 220. According to the Court:
The criminal justice system is not operated primarily for
the benefit of victims, but for the benefit of society as a
whole. Thus, it is concerned not only with punishing the
offender, but also with rehabilitating him. Although
restitution does resemble a judgment “for the benefit of”
the victim, the context in which it is imposed undermines
that conclusion. The victim has no control over the
amount of restitution awarded or over the decision to
award restitution. Moreover, the decision to impose
restitution generally does not turn on the victim's injury,
but on the penal goals of the State and the situation of the
defendant.
Kelly, 479 U.S. at 52. Although the Mindel/Johnson rationale
uses the phrase “injury in fact,” the reasoning of these
opinions essentially tracks Kelly. As the Mindel Court
argued:
The Eleventh Circuit, however, has considered this issue
and has held that crime victims do not have standing to
appeal a district court's rescission of a criminal restitution

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No. 01-4265 United States v. Perry 17
order. See United States v. Johnson, 983 F.2d 216, 217
(11th Cir.1993). Distinguishing the divergent interests of
victims from those of the Government—the former's
being compensatory, while the latter's penal—the
Eleventh Circuit determined that a restitution order
serves a penal rather than a compensatory purpose. Id. at
220. Thus, the victims had not suffered “injury in fact,”
and therefore did not have standing to appeal the district
court's rescission order.
80 F.3d at 397. Another case observing that victims may not
appeal restitution orders, United States v. Brown, 744 F.2d
905 (2d Cir. 1984), uses language taken from Kelly almost
verbatim:
[T]hough the VWPA was intended to compensate the
victim, it does so in a manner distinct from the normal
functioning of a civil adjudication. A court imposing an
order of restitution is required to consider the defendant's
ability to pay. 18 U.S.C. § 3580(a). The victim may
therefore be awarded less than full compensation solely
because of the offender's financial circumstances.
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
control the presentation of evidence during either the
criminal trial or the sentencing hearing and is not even
guaranteed the right to testify about the extent of his
losses. Neither can he appeal a determination he deems
inadequate.
Id. at 910. Since the cases holding that victims cannot appeal
restitution orders depend so heavily on the VWPA, the
differences between the VWPA and the MVRA help show
why these older decisions do not preclude Intervenor from
appealing the district court’s elimination of her property
interest.
18 United States v. Perry No. 01-4265
8That provision states:
The probation officer shall, prior to submitting the presentence
report under subsection (a), to the extent practicable—
(A) provid e notice to all identified victims of—
(i) the offense or offenses of which the defendant was convicted;
(ii) the amounts subject to restitution submitted to the
probation officer;
(iii) the op portunity of the victim to submit information to
the probation officer concerning the amount of the victim's
losses;
(iv) the scheduled date, time, and place of the sentencing hearing;
(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
As these cases mention, the VWPA does not guarantee the
victim much; under the VWPA, the victim may have received
less based on the offender’s financial circumstances, and the
victim had no right to receive anything at all. The VWPA
also did not afford victims much “ability to influence the
outcome.” Id. at 910. As Kelly explained, under the VWPA,
“the decision to impose restitution generally does not turn on
the victim's injury, but on the penal goals of the State and the
situation of the defendant.” 479 U.S. at 52. None of this is
true anymore.
3.
As explained in Section II(A), the MVRA makes restitution
mandatory for victims of certain offenses. See 18 U.S.C.
§§ 3663A(a)(1). Thus, the victims of many crimes now have
a right to restitution. Also unlike the VWPA, district courts
may no longer consider a defendant's financial circumstances
when determining the amount of restitution to be paid. Id. at
§ 3664(f)(1)(A). The MVRA invites victims to participate in
the sentencing process through the United States Probation
Office.8 Id. at § 3664(d)(2). These changes reflect a more

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No. 01-4265 United States v. Perry 19
victim's losses subject to restitution; and
(B) provide the victim with an affidavit form to submit pursuant to
subparagraph (A)(vi).
18 U .S.C. § 366 4(d)(2).
9The only case to discuss victims’ appellate rights under the MVRA
is United States v. Kemp, 938 F.Supp. 1554 (N.D.Ala.1996). The Kemp
court wrote:
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
attempt to remedy the defect in the VW PA which surfaced 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,
overworked and with no m otivation whatsoever to take an
appeal on behalf of a victim, will not do it. This fact has been
proven empirically, because, as previously stated, no U.S.
Attorney has ever appealed from a denial of restitution or from
an order of restitution in a lesser amount than that claimed by a
victim.
Id. at 1564 (emp hasis in origina l). Even assum ing this ana lysis is correct,
the case is d istinguishable because Kemp addresses the right to appeal a
restitution order, whereas this case involv es the right to appeal an order
vacating a lien.
fundamental shift in the purpose of restitution, as explained
in the MVRA’s legislative history. The new restitution
scheme is not merely a means of punishment and
rehabilitation, but an “attempt to provide those who suffer the
consequences of crime with some means of recouping the
personal and financial losses.” H.R. REP. NO. 104-16, at 5
(1995).
Each case the dissent cites, Mindel, Johnson, and Schad,
involved the appeal of an order rescinding or modifying a
restitution order, not an order vacating a constitutionally
cognizable property interest.9 See Mindel, 80 F.3d at 395-96;
Johnson, 983 F.2d at 218; Schad, 1998 WL 193129, *1.
Essentially, both the government and the dissent reason that
20 United States v. Perry No. 01-4265
because a victim lacks the injury in fact required to appeal a
restitution order, a victim must also lack the injury in fact
required to appeal anything sufficiently related to a restitution
order. This flimsy principle forms the core of the Appellees’
rationale for claiming Intervenor did not suffer an injury in
fact.
The issue, as the dissent frames it, is whether a litigant
suffers an injury in fact when a district court rescinds or
modifies its own restitution order which formed the basis
from which the litigant had secured a state court judgment
lien. Even assuming, however, the dissent is correct in its
view of the scope of the district court’s order, Intervenor has
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
Coll., 454 U.S. at 472; Verba, 851 F.2d at 811. Standing
looks at whether the challenged conduct (vacating the
judgment lien) is the cause of her injury, and whether the
relief requested (restoring the lien) would redress the injury.
Standing measures the distance between the Intervenor’s
demand and the problem’s source, and Intervenor’s demand
and the problem’s solution, but not the connection between
Intervenor’s demand and elements of Perry’s trial and
sentencing that might be sine qua non of Intervenor’s
complaint, but are not causa causans of her problem.
4.
By this point, one should recognize two serious problems
with Appellees’ position. First, despite their attempt to
characterize the inability to appeal a VWPA restitution order
as a result of an inadequate injury in fact, the “fairly
traceable” and redressability portions of the standing analysis
offer a much more reasonable explanation for the inability to
appeal a VWPA order. Second, Appellees are not seriously
contending that the deprivation of a constitutionally protected
liberty interest is not a constitutionally cognizable injury; it is
also easy to show that Intervenor’s injury is fairly traceable to

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No. 01-4265 United States v. Perry 21
the order of which she complains and that a favorable ruling
from this Court would redress her injury.
Beginning with the first issue, the VWPA made it difficult
for victims to appeal restitution orders because their claimed
injuries, inadequate restitution payments, were not fairly
traceable to purportedly unlawful conduct, nor necessarily
redressable by judicial action. As noted, under the VWPA, a
court did not have to award restitution. Restitution fell within
the district court’s discretion, which meant that a decision to
award restitution, or award arguably insufficient restitution,
was not fairly traceable to any statutory violation.
Furthermore, one can plausibly claim that a restitution order
found insufficient by a victim could not be redressed
judicially because, as the case law quoted above emphasized,
the VWPA used restitution only as a punitive and
rehabilitative tool, not a mechanism to partly recompense
victims. Thus, particular features of the VWPA
scheme—features absent from the MVRA—explain the
decisions that deny standing to appeal a VWPA restitution
order.
Second, whether or not standing would exist for someone
to appeal a restitution order under the MVRA, it definitely
exists for Intervenor to appeal an order destroying a protected
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
the district court’s order would redress Intervenor’s injury.
This is straightforward.
5.
Once one concludes that Intervenor has suffered an injury
in fact, fairly traceable to the wrong of which she complains
and redressable by the relief she seeks, courts must still
consider whether prudential concerns make an appeal
improper. This means that the alleged injury must fall within
the “zone of interests” protected by the statute at issue. See
22 United States v. Perry No. 01-4265
10Although the parties refer to Tryllous Hossler as “Intervenor,” she
never formally intervened as one would do in a civil proceeding. A
requirement that a party either intervene or attempt to intervene seems
inapp ropriate in this unusual case, because no mechanism exists for a
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.
1975), for instance, we allowed a news organization to appeal a “gag”
order issued in a civil case even though the news organization was
“neither a party to the litigation nor specifically enjoined by the order
from discussing the case.” As far as our Article III standing analysis is
concerned, it makes no difference that this is criminal case . See
Associated Builders & Contractors v. Perry, 16 F.3d 688 , 692 (6th Cir.
1994) (“In the context of standing, however, the crim inal versus civil
distinction is a distinction witho ut a difference.”).
Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 156
(1970); Dist. 2, Marine Eng’r Beneficial Ass’n v. Burnley,
936 F.2d 284, 286 (6th Cir. 1991).
The “zone of interest” test focuses on Congressional intent.
Clarke v. Securities Indus. Assoc., 479 U.S. 388, 399 (1987).
The challenged statute is victims’ rights legislation that
expressly authorizes the disputed judgment lien. Intervenor
has raised an issue within the MVRA’s “zone of interests.”
Prudential concerns also prohibit us from affording
standing to parties that attempt to raise nothing more than
abstract grievances better handled by the legislative or
executive branches, see, Colo. Taxpayers Union, Inc. v.
Romer, 963 F.2d 1394, 1396 (10th Cir. 1992), S.J. Groves &
Sons Co. v. Fulton County, 920 F.2d 752, 757 (11th Cir.
1991), or from affording standing to parties attempting to
assert the legal rights of third parties. See, e.g., United States
v. Raines, 362 U.S. 17, 22 (1960), Tileston v. Ullman, 318
U.S. 44, 46 (1943). Other circuits to have considered these
issues have found that prudential concerns do not prevent a
nonparty from appealing when that party participated in the
proceedings and the equities favor hearing the appeal.10
Commodity Futures Trading Comm'n v. Topworth Int'l, Ltd.,
205 F.3d 1107, 1113 (9th Cir.1999); Davis v. Scott, 176 F.3d

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No. 01-4265 United States v. Perry 23
805, 807 (4th Cir.1999); Krebs Chrysler-Plymouth, Inc. v.
Valley Motors, Inc., 141 F.3d 490, 496 (3d Cir.1998); Searcy
v. Philips Elecs. N. Am. Corp., 117 F.3d 154, 157 (5th
Cir.1997); see also West v. Radio-Keith Orpheum Corp., 70
F.2d 621, 624 (2d Cir. 1934) (“The reason for [the party-only
appeals doctrine] is that if not a party, the putative appellant
is not concluded by the decree, and is not therefore aggrieved
by it. But if the decree affects his interests, he is often
allowed to appeal”) (L. Hand, J.).
First, Intervenor participated in the proceedings below
because she filed papers in opposition to Perry’s request that
the district court vacate her lien. Intervenor’s counsel also
attended the original sentencing hearing. Second, equities
favor permitting this appeal. There is a substantial question
as to whether the district court had the authority to vacate the
lien because no MVRA provision specifically grants district
courts that right. Since Intervenor had an undisputed property
interest, the district court’s decision to revoke that interest
adversely affected Intervenor’s interests even though she did
not participate as a party to the criminal proceeding. As
explained above, Intervenor proposed, by letter, that she
transfer her lien to the district court’s fund to remove any
impediment to Perry’s attempt to sell his assets, after which
the court would resolve the legal issue of Intervenor’s
priority. The victims, albeit represented by Perry’s counsel,
declined Intervenor’s offer. Nevertheless, Intervenor made an
attempt to solve the problem. Equity favors permitting this
appeal. Finally, Intervenor is not attempting to raise some
sort of generalized policy grievance nor does she seek to
litigate someone else’s rights. See, e.g., Raines, 362 U.S. at
22; Tileston, 318 U.S. at 46; Colo. Taxpayers Union, 963
F.2d at 1396; S.J. Groves, 920 F.2d at 757.
Intervenor thus meets both the prudential and constitutional
requirements for Article III standing.
24 United States v. Perry No. 01-4265
III.
Because Intervenor has standing under both the MVRA and
Article III itself, we proceed to consider the merits of her
claim. Intervenor argues that the district court had no
authority to release her lien because the MVRA does not
provide such authority. Appellees counter that the court
below had the necessary authority under the All Writs Act, 28
U.S.C. § 1651(a). Appellate courts review a district court's
assertion of jurisdiction under the All Writs Act de novo. See,
e.g., United States v. Bravo-Diaz, 312 F.3d 995, 997 (9th Cir.
2002); In re Prudential Ins. Co. of Am. Sales Practice Litig.,
261 F.3d 355, 363 (3d Cir. 2001).
The All Writs Act provides that “[t]he Supreme Court and
all courts established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective jurisdictions
and agreeable to the usages and principles of law.” 28 U.S.C.
§ 1651. The All Writs Act enables federal courts to issue
such commands “as may be necessary or appropriate to
effectuate and prevent the frustration of orders it has
previously issued in its exercise of jurisdiction otherwise
obtained.” United States v. N.Y. Tel., 434 U.S. 159, 172
(1977). The Supreme Court has also stressed, however, that
the All Writs Act does not authorize courts “to issue ad hoc
writs whenever compliance with statutory procedures appears
inconvenient or less appropriate.” Pa. Bureau of Corr. v.
United States Marshals Serv., 474 U.S. 34, 43 (1985).
“Where a statute specifically addresses the particular issue at
hand, it is that authority, and not the All Writs Act, that is
controlling.” Id.
A.
Although Appellees cite two cases in which a court used
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

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No. 01-4265 United States v. Perry 25
district court, pursuant to the All Writs Act, ordered the
defendant to liquidate certain assets and deliver the proceeds
to the Marshals Service, but only “after all secured claims,
liens, and other costs associated with the real estate closing
are paid.” Id. at 20. Unisource, a company not a victim of
the defendant’s crimes, claimed to hold an equitable lien on
the defendant’s property. Id. Unisource did not receive any
proceeds from the sale of the defendant’s assets, however,
because the marshals confiscated the proceeds. Id. Unisource
then asked the district court for its share. Id. at 22. The
government argued that only victims may receive restitution,
and that the court lacked authority under the VWPA to release
funds to Unisource stemming from the marshals’ seizure. Id.
The district court disagreed and paid Unisource. On appeal,
the First Circuit affirmed, finding that the court’s original
order protected lien-holders and the All Writs Act gave the
court the authority to issue a further order to prevent the
frustration of its original order. Id.
Other than the hopelessly vague proposition that district
courts may sometimes use the All Writs Act in relation to
restitution orders, it is unclear what Friedman tells us.
Friedman has little to do with the scenario we presently
consider because no one argued in Friedman that the second
order either conflicted with the VWPA or violated a
constitutional right.
Second, Appellees cite United States v. Venneri, 782 F.
Supp. 1091 (D. Md. 1991), in which a district court vacated
a defendant’s conviction by writ of error coram nobis because
the defendant was originally convicted pursuant to a statute
later found unconstitutional. Id. at 1092. The defendant was
originally ordered to pay restitution to one of his victims. Id.
The court considered whether it had jurisdiction under the All
Writs Act to direct the victim to repay restitution to the
defendant. Id. Although the court noted the lack of statutory
authority for such an order, it found that the All Writs Act
provided the necessary mechanism. Id. at 1094. Unlike the
present case, however, there was no dispute in Venneri that
26 United States v. Perry No. 01-4265
the victim lacked entitlement to the restitution award. Id. As
the court explained, “[d]espite the dearth of statutory
authority, it remains indisputable that [the victim] must repay
the [defendant].” Id. Thus, the victim had no entitlement to
the restitution, nor did the victim have a constitutionally-
recognized property right to the money. Neither Venneri nor
Friedman addresses the situation presently before us.
At first glance, the All Writs Act seems to authorize a
district court to issue any subsequent order in furtherance of
an initial order as long as the initial order was lawful. As one
would expect, however, even if a court properly issues its
initial order, it may not use the All Writs Act to issue a
subsequent order to effectuate the first order if the subsequent
order is itself unconstitutional. See, e.g., United States v. City
of New York, 972 F.2d 464, 470 (2d Cir. 1992) (“Nor can the
All Writs Act confer on the courts the power to ignore the
case or controversy requirement, which is rooted in Article III
of the constitution's definition of judicial power.”); In re
Baldwin-United Corp. (Single Premium Deferred Annuities
Ins. Litig.), 770 F.2d 328, 340 (2d Cir. 1985) (“The All-Writs
Act . . . cannot be used to circumvent or supersede the
constitutional limitations of the Eleventh Amendment.”).
This is consistent with the text of the All Writs Act, which
only authorizes courts to issue writs “agreeable to the usages
and principles of law.” 28 U.S.C. § 1651. “[A]greeable to
the usages and principles of law” also suggests that courts
may not use the All Writs Act to issue a second order to
effectuate an initial, lawful order if the second order works by
violating some other statutory provision.
B.
This case involves two statutory provisions seemingly
operating in conflict. In its entirety, 18 U.S.C. 3664(m)(1)(B)
states:
At the request of a victim named in a restitution order,
the clerk of the court shall issue an abstract of judgment

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No. 01-4265 United States v. Perry 27
11The record does not reveal whether this is how Intervenor learned
of her right to file a lien.
certifying that a judgment has been entered in favor of
such victim in the amount specified in the restitution
order. Upon registering, recording, docketing, or
indexing such abstract in accordance with the rules and
requirements relating to judgments of the court of the
State where the district court is located, the abstract of
judgment shall be a lien on the property of the defendant
located in such State in the same manner and to the same
extent and under the same conditions as a judgment of a
court of general jurisdiction in that State.
This provision, which authorizes Intervenor’s lien, contains
no language giving the court any right to vacate a lien if it
conflicts with the restitution order. Title 18 U.S.C.
§ 3664(d)(2)(A)(v) references (m)(1)(B) by mandating that
“[t]he probation officer shall, prior to submitting the
presentence report under subsection (a), to the extent
practicable . . . provide notice to all identified victims of . . .
the availability of a lien in favor of the victim pursuant to
subsection (m)(1)(B).”11
Although the statute unambiguously allows victims to
impose judgment liens in accordance with state law, the
statute gives sentencing courts significant flexibility to tailor
restitution orders to particular circumstances. As 18 U.S.C.
§ 3664(i) explains, “[a] restitution order may direct the
defendant to make a single, lump-sum payment, partial
payments at specified intervals, in-kind payments, or a
combination of payments at specified intervals and in-kind
payments.” The statute also clarifies that “[i]f the court finds
that more than 1 victim has sustained a loss requiring
restitution by a defendant, the court may provide for a
different payment schedule for each victim based on the type
and amount of each victim's loss and accounting for the
economic circumstances of each victim.” 18 U.S.C.
28 United States v. Perry No. 01-4265
12Of course, had the district court structured an order that gave
Intervenor priority, as opposed to a pro rata distribution, no co nflict
would exist.
§ 3664(f)(i). The MVRA never mentions pro rata
distribution, but §§ 3664(f)(3)(A) and (i) appear to give trial
courts the right to require reimbursement in that fashion. By
definition, pro rata distribution means that no victim has
priority, but a judgment lien is a device designed to give the
lien-holder priority. In this sense, the statutory provisions
appear to conflict.12
C.
One of the most basic canons of statutory interpretation is
that a more specific provision takes precedence over a more
general one. See, e.g., Green v. Bock Laundry Mach. Co.,
490 U.S. 504, 524 (1989) (stating that a general statutory rule
does not govern unless there is no more specific rule);
Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976)
(holding that the general venue provision of the Securities
Exchange Act of 1934 does not trump the specific venue
provision of the National Bank Act); Y.S. v. Castro-Rocha,
323 F.3d 846, 851 (10th Cir. 2003) (“[A] fundamental canon
of statutory interpretation holds that, when there is an
apparent conflict between a specific provision and a more
general one, the more specific one governs, regardless of the
priority of the provisions' enactment.”) (citing Cal. ex rel.
Sacramento Metro. Air Quality Mgmt. Dist. v. United States,
215 F.3d 1005, 1013 (9th Cir.2000)). As the Supreme Court
explained:
The reason and philosophy of the rule is, that when the
mind of the legislator has been turned to the details of a
subject, and he has acted upon it, a subsequent statute in
general terms, or treating the subject in a general manner,
and not expressly contradicting the original act, shall not
be considered as intended to affect the more particular or

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No. 01-4265 United States v. Perry 29
positive previous provisions, unless it is absolutely
necessary to give the latter act such a construction, in
order that its words shall have any meaning at all.
Radzanower, 426 U.S. at 153.
The MVRA expressly references a victim’s right to a
judgment lien on two occasions, see 18 U.S.C.
§§ 3664(d)(2)(A)(v), (m)(1)(B), and, as recounted above,
provides significant detail, see § 3664(m)(1)(B). In contrast,
the MVRA never mentions pro rata distribution. Rather, pro
rata distribution is simply one alternative a court might adopt
under the highly general and flexible grants of authority in 18
U.S.C. §§ 3664(f)(3)(A) and (i). In accordance with the
“specific over general” canon of statutory construction, we
are more inclined to read the lien provision as an exception to
the trial court’s general authority to structure restitution
orders, rather than assuming that the more vague powers
Congress granted in 18 U.S.C. §§ 3664(f)(3)(A) and (i) are an
exception to the very precise lien provision. This suggests
that federal courts do not have the authority to vacate an
already-existing judgment lien based on their right to enforce
MVRA orders under the All Writs Act.
D.
As already noted, the Supreme Court has made clear that
we must construe statutes to avoid constitutional doubt when
it is reasonably possible to do so. DeBartolo Corp. v. Fla.
Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,
575 (1988) (defining the canon of constitutional doubt as one
that requires courts, “where an otherwise acceptable
construction of a statute would raise serious constitutional
problems, . . . [to] construe the statute to avoid such problems
unless such construction is plainly contrary to the intent of
Congress”); Crowell v. Benson, 285 U.S. 22, 62 (1932)
(“When the validity of an act of the Congress is drawn in
question, and even if a serious doubt of constitutionality is
raised, it is a cardinal principle that this Court will first
30 United States v. Perry No. 01-4265
ascertain whether a construction of the statute is fairly
possible by which the question may be avoided.”); Hooper v.
California, 155 U.S. 648, 657 (1895) (“The elementary rule
is that every reasonable construction must be resorted to, in
order to save a statute from unconstitutionality.”); cf. Murray
v. The Charming Betsy, 2 Cranch (6 U.S.) 64, 118 (1804)
(“[A]n act of Congress ought never to be construed to violate
the law of nations if any other possible construction
remains.”) (Marshall, C.J.). A construction that permits
district courts to destroy constitutionally protected property
interests without due process violates this precept if another
reasonable construction is “fairly possible.” Crowell, 285
U.S. at 62.
There is another “fairly possible” construction of the
statute. One might reasonably assume that Congress only
meant to allow states to record liens that reflect restitution
orders, not liens that conflict with or exceed restitution orders.
Consider again the language MVRA judgment lien provision,
which states that, “[u]pon registering, recording, docketing,
or indexing [the restitution order and judgment] in
accordance with the rules and requirements relating to
judgments of the court of the State where the district court is
located, the [restitution order and judgment] shall be a lien on
the property of the defendant located in such State.” 18
U.S.C. § 3664(m)1)(B) (emphasis added). The lien is then
recognized and handled “in the same manner and to the same
extent and under the same conditions as a judgment of a court
of general jurisdiction in that State.” Id. It seems more than
“fairly possible” that Congress meant for victims to obtain
judgment liens in a manner that complied with the relevant
state’s procedure.
No one can get a lien for more than the value of the
supporting judgment. Yet Ohio (perhaps erroneously) gave
Intervenor such a lien, apparently without regard for the
underlying judgment and restitution order authorizing only
pro rata distribution. Ohio may have erred, and Perry could
have moved in the Ohio judiciary, rather than the federal

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No. 01-4265 United States v. Perry 31
district court, to vacate or modify the lien. Such an action by
Perry protects the due process rights associated with the lien,
because under Ohio law, judgment liens receive constitutional
protections, see Central Trust Co. v. Jensen, 616 N.E.2d 873,
876 (Ohio 1993), and a judgment by an Ohio state court
vacating a judgment lien is a final appealable order,
see Roach v. Roach, 132 N.E.2d 742, 744 (Ohio 1957). This
interpretation of the law protects Intervenor’s due process
rights and is “fairly possible” given the statutory language,
further suggesting that federal courts do not have the authority
to vacate an already-existing judgment lien based on their
right to enforce MVRA orders under the All Writs Act.
E.
We may not construe a statute in a manner that renders part
of the law superfluous. See, e.g., Regions Hosp. v. Shalala,
522 U.S. 448, 467 (1998); United States v. Nordic Vill., Inc.,
503 U.S. 30, 36 (1992); Fed. Election Comm'n v. Nat’l
Conservative Political Action Comm., 470 U.S. 480, 486
(1985). More than a century ago, the Supreme Court
explained:
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
statutory construction that significance and effect shall,
if possible, be accorded to every word. As early as in
Bacon's Abridgment, sect. 2, it was said that 'a statute
ought, upon the whole, to be so construed that, if it can
be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.' This rule has been
repeated innumerable times.
Wash. Market Co. v. Hoffman, 101 U.S. 112, 115-16 (1879).
Thus, any interpretation of the MVRA that makes one if its
provisions irrelevant is presumptively incorrect.
Appellees’ position, however, has exactly this effect. If one
asserts that the district court always has the authority to
32 United States v. Perry No. 01-4265
invalidate a victim’s judgment lien and impose unsecured pro
rata distribution, then the MVRA would read as though the
provision granting victims the right to judgment liens did not
exist. Victims could obtain judgment liens only at the
sentencing court’s unlimited discretion.
The proposed alternative discussed above—allowing
victims to challenge an allegedly improper lien in state court
rather than allowing a district court to invalidate it
entirely—would not render the judgment lien provision
superfluous. At minimum, 18 U.S.C. § 3664(m)(1)(B) would
compel state courts to approve judgment liens consistent with
restitution orders to the extent allowed under state law,
thereby giving the victim a security interest in the defendant’s
property, even if (because of the restitution order’s language)
that security interest is not permitted to rise above the
victim’s pro rata share. Thus, 18 U.S.C. § 3664(m)(1)(B)
would still serve a purpose.
The rule against surplusage further supports the conclusion
that federal courts do not have the authority to vacate an
already-existing judgment lien based on their right to enforce
orders under the All Writs Act.
F.
Finally, Appellees argue that accepting Intervenor’s
position would create a “race to the courthouse,” i.e., if
victims can obtain judgment liens despite a court order
requiring pro rata distribution, then the victim fortunate
enough to file the first lien has the greatest chance of
recovery, and victims will have to compete for priority.
The MVRA is not optimally structured. Cf. United States
v. Locke, 471 U.S. 84, 95 (1984) (acknowledging that, for the
statute under consideration, “Congress might have acted with
greater clarity or foresight”); United States v. Jackson, 824
F.2d 21, 25 (D.C. Cir. 1987) (admitting that the statute under
consideration was “[l]amentably . . . not meticulously

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No. 01-4265 United States v. Perry 33
13Intervenor acquired a lien for an amount greater than her pro rata
interest but, as noted, Ohio may have erred and Perry can move to vacate
that lien in the Ohio courts. One might conceive of cases in which the
availab ility or function of state lien law creates problems, but this
possibility is a matter only Congress can address by amending the statute.
drafted”). Regardless, the “race to the courthouse” is a far-
fetched concern. District courts have discretion to issue all
sorts of orders that would interfere with the race to the
courthouse: pure pro rata distribution, distribution to the
neediest victims first, distribution to the most seriously
injured first, pro rata within classes of victims, and so forth.
See 18 U.S.C. §§ 3664(f)(3)(A) and (i). In all cases, victims
who attempt to secure judgment liens beyond what the
sentencing court authorized should fail to have their liens
recognized by the state, and if the liens are recognized
anyway, victims could attempt to vacate them in appropriate
state court proceedings. Victims would not scramble to
perfect liens that should not (and thus probably cannot) be
perfected under state law, and would remain subject to
challenge.13
The feared “race to the courthouse” is specious and three
major canons of statutory construction suggest that a victim
has a right to a secured interest in the defendant’s property
despite other less precise statutory language that Appellees
claim allows district courts to vacate judgment liens. A court
may not use the All Writs Act to issue a second order to
enforce an initial order when the second order renders
statutory language superfluous and raises constitutional
questions. Consequently, the district court did not have the
authority under the All Writs Act, 28 U.S.C. § 1651(a), to
vacate Intervenor’s judgment lien.
34 United States v. Perry No. 01-4265
IV.
Those who would disagree must demonstrate not just that
the district court had the authority to issue an order altering
(or revoking) a judgment lien, but that the order was
substantively correct.
The All Writs Act only allows the district court to issue an
order attempting to effectuate its earlier order. N.Y. Tel., 434
U.S. at 172. Therefore, assuming the district court had
authority to vacate Intervenor’s judgment lien, that authority
only extended to the part of Intervenor’s lien that violated the
court’s initial pro rata distribution order. Defendant owed
Intervenor $92,000. Assume, hypothetically, that there were
only two other victims: one (Victim A) owed $46,000, and
another (Victim B) owed $138,000. Under pro rata
distribution, Victim A would receive approximately
seventeen cents (one-sixth) of every dollar recovered,
Intervenor would receive approximately thirty-three cents
(one-third) of every dollar recovered, and Victim B would
receive fifty cents (one-half) of every dollar recovered. If,
continuing the hypothetical, Intervenor obtained a lien against
the defendant’s house for the full $92,000, that conflicts with
pro rata distribution. However, vacating the lien
completely—as the district court did in this case—also
conflicts with pro rata distribution, because pro rata
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
presently before us than the calculations in the hypothetical,
the principle is exactly the same. The court below did not
merely vacate the portion Intervenor’s statutorily-authorized
judgment lien that conflicted with the initial pro rata order,
the district court vacated the entire judgment lien. Thus, the

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No. 01-4265 United States v. Perry 35
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
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
mistakenly believes the district court possesses.
CONCLUSION
Both Appellees and the dissent misconstrue Intervenor’s
two compelling arguments for standing, either one of which
provides sufficient basis for us to address the merits. With
regard to the merits, the district court had no authority under
the All Writs Act to vacate Intervenor’s statutorily authorized
judgment lien. Anyone wishing to argue that the lien
conflicted with the district court’s pro rata order had the right
to dispute the lien in the Ohio courts.
For all the aforementioned reasons, we VACATE the order
releasing Intervenor’s judgment lien.
36 United States v. Perry No. 01-4265
_________________
DISSENT
_________________
JULIA SMITH GIBBONS, Circuit Judge, dissenting. I
dissent because I believe that Hossler lacks standing to
contest the district court’s order releasing her judgment lien.
The district court was enforcing the terms of its prior
restitution order, which was entered at sentencing in a
criminal case in which Hossler was not a party. The
majority’s broad interpretation of the MVRA would allow
victims to appeal numerous decisions relating to the
enforcement of restitution orders and would lead to victims
participating in criminal proceedings in a manner that
Congress never intended when it enacted the MVRA. Hossler
has not been deprived of a constitutionally protected right to
receive restitution; she has been deprived of the opportunity
to enforce a restitution order in a manner that was contrary to
what was intended by the district court and in a way that
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

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No. 01-4265 United States v. Perry 37
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81
(2000) (citing Lujan, 504 U.S. at 560-61). Beyond the
constitutional requirements in Article III, “the federal
judiciary has also adhered to a set of prudential principles that
bear on the question of standing.” Valley Forge Christian
Coll. v. Americans United for Separation of Church and
State, Inc., 454 U.S. 464, 474 (1982). One of these prudential
requirements is that the interest of a plaintiff seeking standing
under a particular statutory provision must be “within the
zone of interests protected by the law invoked.” United States
v. Mindel, 80 F.3d 394, 397 (9th Cir. 1996) (quoting Allen v.
Wright, 468 U.S. 737, 751 (1984)). Under the zone of
interests test, plaintiffs lack standing if their interests are “so
marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed
that Congress intended to permit the suit.” United States v.
Grundhoefer, 916 F.2d 788, 792 (2d Cir. 1990) (quoting
Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)).
The district court granted the Perry Investors’ motion to
vacate Hossler’s lien upon finding that the lien would give
preferential treatment to Hossler. At sentencing, Perry
expressed a strong desire to make restitution, and his counsel
described a plan for selling his property and liquidating his
assets in order to pay his restitution obligations. The district
court found that Perry’s restitution payments “should be made
to the Clerk of Courts,” who would then “forward the money
to the victims pro rata until the full amount is paid.” In
granting the Perry Investors’ motion to vacate Hossler’s
judgment lien, the district court noted that its restitution order
“unequivocally required that restitution be distributed to all
the Perry Investors pro rata,” and concluded that Hossler’s
lien “would give preferential treatment to only one of Perry’s
numerous victims – which is plainly inconsistent [with the
court’s prior restitution order].” For both constitutional and
prudential reasons, Hossler lacks standing to challenge the
district court’s order.
38 United States v. Perry No. 01-4265
Prior to the MVRA’s enactment in 1996, courts
consistently held that victims did not have standing to appeal
a district court’s decision modifying or enforcing a restitution
order. See Mindel, 80 F.3d at 397 (holding that beneficiary of
criminal restitution order lacked standing to challenge
modification of sentence to rescind restitution order); United
States v. Johnson, 983 F.2d 216 (11th Cir. 1993). These
courts have noted that while a criminal restitution order
resembles a judgment for the benefit of the victim, restitution
is penal, not compensatory. Kelly v. Robinson, 479 U.S. 36,
52 (1986). Thus, “[t]he direct, distinct, and palpable injury in
a criminal sentencing proceeding plainly falls only on the
defendant who is being sentenced . . . and he alone suffers the
direct consequences.” Grundhoefer, 916 F.2d at 791; see also
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (finding
that a private citizen generally lacks standing “to contest the
policies of the prosecuting authority when he himself is
neither prosecuted nor threatened with prosecution”).
Because 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
order. See Mindel, 80 F.3d at 397; Johnson, 983 F.2d at 221
United States v. Schad, No. 97-5003, 1998 WL 193129, at *2
(10th Cir. April 22, 1998) (holding that a crime victim lacked
standing to appeal the district court’s order terminating the
victim’s right to continue garnishing the defendant’s wages
pursuant to a criminal restitution order).
As the majority opinion notes, Mindel, Johnson, and Schad
all involved appeals from orders rescinding or modifying
restitution orders. In Johnson, for example, the district court
rescinded its prior restitution order when the defendant
became delinquent in her restitution payments that were
supposed to be made to the victim bank in monthly
installments. Id. at 218. The bank appealed the district
court’s order rescinding the restitution obligation, and the
Eleventh Circuit held that the bank lacked standing because
it had not suffered a direct injury adequate to satisfy Article
III’s constitutional requirements. Id. at 221. But just as a

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No. 01-4265 United States v. Perry 39
1W hile the majority notes that the MVR A provides a mechanism for
victims to obtain judgment liens in § 3664(m)(1)(B), it is worth noting
that the MVR A also contemplates the authority of district courts to require
reimbursement in a particular manner – whether in lump-sum payments,
partial payments at specified intervals, in-kind payments, or some
combination of the above. 18 U .S.C. § 366 4(f)(3)(A). D istrict courts
may also favor one victim over another in crafting a restitution order,
based on “the type and amount o f each victim’s loss and accounting for
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 would
likely result in situations where a victim desires to challenge the district
court’s order of priority. These victims, like Hossler, have not suffered
injury in fact and should not be permitted to appeal such decisions. By
opening the do or to victims like Hossler, the majority also opens the door
to other victims unhappy with the terms of a district court’s restitution
order.
victim does not suffer an injury in fact when a district court
modifies or rescinds a restitution order, Hossler has not
suffered an injury in fact in this case because the district
court’s decision vacating her judgment lien was in essence
enforcing the terms of its prior restitution order. The fact that
the district court in this case vacated Hossler’s judgment lien
instead of modifying or rescinding its restitution order does
not mean that she has somehow been injured in a more
concrete or particularized way than the plaintiffs in Mindel
and Johnson. The majority opinion asserts that the MVRA
does not provide an “express means by which a district court
can alter a victim’s lien rights post hoc,” but presumably a
district court does exactly that when it rescinds or modifies
restitution orders. However, prior cases have held that in
those circumstances, victims have not suffered injury in fact
and do not have standing to appeal. Similarly, Hossler has
not suffered an injury in fact because the district court denied
her the opportunity to make an end run around the schedule
set forth in the court’s previous restitution order.1
Even if Hossler has suffered an injury in fact different from
that suffered by the victim bank in Johnson, for example,
40 United States v. Perry No. 01-4265
2In fact, it is telling that Hossler has never formally intervened
because no mechanism exists for a private citizen to intervene in a
criminal case. T he ab sence of such a mec hanism for intervention is
further evidence that Congress did not contemplate that victim s would
participate in criminal cases as parties with standing to appeal restitution
orders.
prudential limitations counsel against according Hossler
standing to challenge the district court’s order in this case.
Critical to the issue of Hossler’s standing is the context in
which her appeal occurs: Hossler is appealing an order
entered in a criminal case in which she was not a party. If the
Perry Investors had gone to state court and filed a lawsuit
seeking to vacate her judgment lien, Hossler certainly would
have standing to appeal from any subsequent decision by the
state court, but that is not what is happening here. Nothing in
the language or legislative history of the MVRA indicates that
Congress intended to provide victims with a private remedy
to sue or appeal restitution decisions made in the context of
criminal cases in which the victims were not parties.2
As the majority notes, a comparison between the MVRA
and its predecessor, the VWPA, is relevant here because
courts have held that victims do not have standing to appeal
a district court’s modification or rescission of a restitution
order under the VWPA. The majority concludes that the
MVRA reflects a more “pro-victim” attitude, primarily
because restitution is now mandatory for certain crimes under
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
to restitution because restitution is now mandatory under the
MVRA, this right was not denied when the district court
entered its order vacating her judgment lien. Hossler retained
her right to restitution in the manner and amount set forth in
the district court’s original restitution order. She was merely
denied the opportunity to enforce the district court’s
restitution order in a manner that was contrary to what was
intended by the district court. In its zeal to protect Hossler’s

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No. 01-4265 United States v. Perry 41
3W hile this court has not issued any published opinions on the issue
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,
2000 WL 145183 (6th C ir. Feb. 1, 2000). In Curtis, the defendant
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
attempt to force a finance company who had purchased the acco unt to
cease charging interest on the defendant’s restitution debt and to restore
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
party to Curtis’s criminal case, and that the district co urt had no authority
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 restitution order.” Id. (citing Mindel, 80 F.3d at 397 ). According to
the court, the victim “would have to bring a civil action to enforce the
restitution order.” Id. (citing United States v. Diamond, 969 F.2d 961,
969 (10 th Cir. 1992)).
judgment lien, the majority makes no mention of Perry’s
other victims, who presumably also have a right to receive
restitution under the provisions of the MVRA and who will be
denied that right if Perry is unable to sell his remaining assets
due to Hossler’s judgment lien.
In fact, the MVRA has removed victim discretion to
enforce restitution orders; enforcement of such orders now
rests exclusively with the United States. 18 U.S.C.
§ 3664(m)(1)(A). In this respect at least, the MVRA is less
“pro-victim” than the predecessor VWPA. Prior to 1996, 18
U.S.C. § 3663 provided that an order of restitution could be
enforced by the United States and “by the victim named in the
order to receive the restitution in the same manner as a
judgment in a civil action.” Under this statutory scheme,
either the United States or the victim could seek to enforce an
order of restitution. This provision was amended, and
pursuant to the new legislation in the MVRA, an order of
restitution is now enforceable only by the United States. It is
worth noting that this change was enacted after several circuit
courts had concluded that victims did not have standing to
challenge restitution orders.3 It seems unlikely that Congress
42 United States v. Perry No. 01-4265
intended to extend standing to criminal victims in light of
those decisions and its decision to remove victims from the
enforcement provision.
While the legislative history of the MVRA indicates that
Congress intended mandatory restitution to be one means by
which the criminal justice system could be reformed into a
system that is more responsive to the needs of crime victims,
the legislative history also evinces a Congressional intent to
streamline the administration of restitution within the criminal
justice system:
The procedures contained in this section are intended to
provide a streamlined process for the determination of
both the amount of restitution owed to each victim and
the terms of repayment based on a reasonable
interpretation of the defendant’s economic
circumstances. The committee believes that the need for
finality and certainty in the sentencing process dictates
that this determination be made quickly, but also
recognizes that justice requires that this particular aspect
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
until full restitution is made.
S. Rep. 104-179, 1996 U.S.C.C.A.N. 924, 933 (emphasis
added). It is hard to see how the goal of streamlining the
restitution process is served by allowing victims to intervene
and enforce restitution orders in ways that are contrary to
what was intended by the district court at sentencing.
In support of its position that Hossler has met the prudential
requirements for standing in this case, the majority notes that
“the equities favor permitting this appeal” because “[t]here is
a substantial question as to whether the district court had the
authority to vacate the lien because no MVRA provision
specifically grants district courts that right.” This analysis

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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.

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