In re: JANE DOE, No. 22-70098 ______________________________ D.C. No. 2:17-cr-00072-RFB JANE DOE,

Petitioner, OPINION

v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA, LAS VEGAS,

Respondent, VONTEAK ALEXANDER; UNITED STATES OF AMERICA,

Real Parties in Interest.

Petition for Writ of Mandamus

Argued and Submitted September 19, 2022 San Francisco, California Before: Susan P. Graber, Michelle T. Friedland, and Lucy H. Koh, Circuit Judges.

Opinion by Judge Graber SUMMARY *

Mandamus / Crime Victims’ Rights Act

The panel granted Jane Doe’s petition for a writ of mandamus pursuant to 18 U.S.C. § 3771(d)(3), a provision of the Crime Victims’ Rights Act, in a case in which the district court concluded that it lacked statutory authority to order the defendant to pay restitution to Jane Doe.

The defendant kidnapped Jane Doe, then age 12 years old, and drove her from California to Nevada knowing that she would engage in prostitution. The defendant entered into a written plea agreement pursuant to which, in exchange for the government’s promise to drop five serious criminal charges, he would plead guilty to two lesser crimes (interstate travel in aid of unlawful activity, in violation of 18 U.S.C. § 1952(a)(3)(A)) and would pay Doe restitution.

The panel published the opinion to reiterate what this court held in two cases decided three decades ago: 18 U.S.C. § 3663(a)(3) grants statutory authority to district courts to award restitution whenever a defendant agrees in a plea agreement to pay restitution.

The defendant first argued that the restitution provision in the plea agreement unambiguously limited the district court’s authority such that the court could award restitution only for those crimes that trigger mandatory restitution under 18 U.S.C. § 2259; and that because none of the defendant’s conduct amounted to a crime that fell within that category, the district court lacked authority to award Jane Doe restitution under the plain terms of the plea agreement. The defendant then argued that even if the plea agreement is ambiguous, this court should interpret that ambiguity in his favor and hold that the district court lacked authority to award restitution under the plea agreement. Rejecting both arguments, the panel wrote that the extrinsic evidence unambiguously demonstrates that the defendant agreed to pay restitution for Jane Doe’s loss, as defined in 18 U.S.C. § 2259(b)(3); and, accordingly, the rule that ambiguities are construed against the government does not apply.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. The panel instructed the district court to address, in the first instance, the defendant’s evidentiary challenges and other arguments concerning the appropriate amount of restitution.

COUNSEL

Paul G. Cassell (argued), Utah Appellate Project, S.J. Quinney College of Law at the University of Utah, Salt Lake City, Utah; Rose M. Mukkhar and Norah C. Cunningham, Justice at Last Inc., San Carlos, California; for Petitioner. Elizabeth O. White (argued), Appellate Chief and Assistant United States Attorney; Christopher Floyd Burton, Assistant United States Attorney, Jason M. Frierson, United States Attorney, United States Attorney’s Office, Reno, Nevada, for Real Party in Interest United States of America. Amy B. Cleary (argued), Rene L. Valladares, and Wendi L. Overmyer, Assistant Federal Public Defenders, Federal Public Defender’s Office, Las Vegas, Nevada; Christopher Oram, Law Office of Christopher R. Oram LTD, Las Vegas, Nevada, for Real Party in Interest Vonteak Alex