In re: Lawrence J. Acker , Brian W. Buttars , Linda Desmond , James Feeney , Ainello…

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0053p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
In re: L AWRENCE J. ACKER , BRIAN W.
BUTTARS , LINDA DESMOND , J AMES FEENEY ,
AINELLO M ANCUSI, RON M IASTKOWSKI,
PERRY PEKA , PATRICK SIMASKO , WAYNE
STANFORD , and THE BARON GROUP , I NC .,
dba BARON ’ S I CE HOUSE ,
Petitioners.
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Nos. 10-3159/3160
Filed: February 22, 2010
Before: KEITH, MARTIN, and CLAY, Circuit Judges.
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ORDER
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This petition for a writ of mandamus and a related appeal arise from the proceedings
in United States v. Arctic Glacier Int’l Inc., No. 1:09-cr-00149 (S.D. Ohio). In that case,
Arctic Glacier International was charged in a criminal information with violating 15 U.S.C.
§ 1 by participating in “a conspiracy to suppress and eliminate competition by allocating
packaged-ice customers in southeastern Michigan and the Detroit, Michigan metropolitan
area.” The petitioners describe themselves as “nine consumers and one business that paid
too much for packaged ice as a result of Arctic Glacier’s offense” based on purchases both
within and outside of the geographic area of the offense. Their civil action for damages is
pending in the Eastern District of Michigan. In re Packaged Ice Antitrust Litig., No. 08-md-
1952 (E.D. Mich.). In these criminal proceedings, the petitioners claim to be victims of the
crime under the Crime Victims’ Rights Act, 18 U.S.C. § 3771.
Pursuant to § 3771(d)(3), the petitioners seek a writ of mandamus to enforce their
rights under the Act. They also have filed a notice of appeal from various orders, decisions,
and rulings made by the district court during the course of the criminal proceedings. After
the district court had imposed sentence, it granted a temporary stay of the formal entry of
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judgment to allow the petitioners to seek relief in this court. In a prior order, we issued a
temporary stay and requested the government and Arctic Glacier to respond. They have done
so. Additionally, Arctic Glacier moves to dismiss the petitioners’ related appeal. The
petitioners reply in support of their petition. We have considered all of these pleadings.
If the district court in a criminal proceeding denies relief sought under the Act, “the
movant may petition the court of appeals for a writ of mandamus.” § 3771(d)(3). The court
of appeals “shall take up and decide such application forthwith within 72 hours after the
petition has been filed.” Id. In considering this petition, we find persuasive the decision in
In re Antrobus, 519 F.3d 1123, 1124-25 (10th Cir. 2008), which concluded that the plain
language of the statute compels application of the normal mandamus standards. The
issuance of a writ of mandamus is relief that is governed by well-established standards. The
use of that specific term in the statute, in conjunction with the truncated period in which the
court of appeals is to review such a petition and act upon it, convinces us that those usual
standards apply here.
“‘The traditional use of the writ in aid of appellate jurisdiction both at common law
and in the federal courts has been to confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’”
Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 308 (1989) (quoting
Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 (1943)). Thus, “only exceptional
circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion,
will justify the invocation of this extraordinary remedy.” Cheney v. U.S. Dist. Court for
Dist. of Columbia, 542 U.S. 367, 380 (2004) (internal quotation marks and citations
omitted). We have noted that “a writ of mandamus is an extraordinary remedy that we will
not issue absent a compelling justification.” In re: Prof’ls Direct Ins. Co., 578 F.3d 432, 437
(6th Cir. 2009).
In seeking this relief, the petitioners first argue that the district court refused to
recognize them as crime victims under the Act. Under the Act, a crime victim is “a person
directly and proximately harmed as a result” of the offense. 18 U.S.C. §3771(e). Whether
these petitioners as indirect purchasers were “directly and proximately harmed” by the
actions of Arctic Glacier is an issue that is largely beside the point, because we conclude that

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the district court afforded them the status of crime victims. That is, the petitioners were
allowed a full opportunity for participation. That included their appearance through counsel
at the arraignment, at the plea hearing, and at sentencing. The district court delayed a
decision on whether to accept the guilty plea to allow counsel for the petitioners an
opportunity to confer with government counsel. Counsel for the petitioners admitted at the
sentencing hearing that upon their entry into the case, the district court had afforded them
every opportunity for participation. Notwithstanding that active participation, the petitioners
assert a right to an earlier notice prior to filing of the charges and direct involvement with
the government’s negotiation of a plea agreement. The petitioners’ right to such notice is
uncertain, and based on the record in this case, we do not find this to be grounds for relief
in mandamus.
The petitioners disagree with the district court’s final decision, made after hearing
from them on multiple occasions, to accept the plea agreement and impose sentence pursuant
to that agreement. They object that the plea agreement makes no provision for restitution
in deference to the pending civil causes of action. They seek through this petition to vacate
the plea agreement, to direct the district court to reopen the proceedings, and to participate
as a party to the renegotiation of a plea agreement that will include provisions for restitution
in their favor. Although the Act reaffirms the right of crime victims “to full and timely
restitution as provided in law,” it does not compel such a result in this case. Upon review,
we cannot conclude that the district court abused its discretion in accepting the agreement.
The record reflects a consideration of all appropriate factors. The district court reasonably
concluded that the difficulty of determining the losses claimed would so prolong and
complicate the proceedings that any need for restitution would be outweighed by the burden
on the sentencing process.
We further conclude that the appeal in No. 10-3160 must be dismissed. In the
posture of this case, where the direct appeal was filed at the same time as the mandamus
petition and raises the identical issues, there is no additional right of appeal. Factually, this
case is distinct from In re Siler, 571 F.3d 604 (6th Cir. 2009), where the victims asserted a
right under the Act eighteen months after the criminal proceedings had concluded. In
hearing their appeal, we concluded that they had been effectively treated as intervening
parties and thus could appeal. The same result does not obtain here, where the petitioners

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have asserted their rights in the criminal proceeding and invoked the immediate review
provided in § 3771(d)(3).
For these reasons, the petition for a writ of mandamus filed as No. 10-3159 is
DENIED. The motion to dismiss the appeal in No. 10-3160 is GRANTED. The motion to
consolidate Nos. 10-3159/3160 is DENIED as moot. The temporary stay previously entered
is DISSOLVED.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
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Clerk

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