In re Her Majesty the Queen in Right of Canada

|The Volokh Conspiracy |

That's the official name of this Ninth Circuit decision handed down Tuesday. The fact pattern is unusual, too:

Defendant Nathan Stoliar was convicted and sentenced on April 9, 2015, … [on various charges] based on fraudulent schemes involving the false generation of renewable fuel credits under United States law, false representations regarding the type of fuel being sold, and the export of biodiesel without retiring or purchasing renewable energy credits adequate to cover the exported amount as required under United States law.

On February 18, 2015, counsel for Canada's Department of Justice filed a letter in the district court, asserting that Canada was a victim of Stoliar's crimes, and seeking a share in restitution. On April 2, 2015, petitioner Her Majesty the Queen in Right of Canada ("Canada") filed in the district court a petition for an order of restitution from Stoliar in the amount of 1,233,065.32 CAD….

But the Queen did not emerge victorious, whether or not she remains happy and glorious:

The fraud against Canada had certain aspects in common with the scheme to which Stoliar pled guilty. Primarily, both appear to have been built upon the same central falsity: defendants' misrepresentations regarding the quantity of biofuel that was produced by City Farm.

The schemes, however, were different…. It appears that the RIN fraud in the United States and the biofuel subsidy fraud in Canada proceeded on parallel tracks. But they were not causally linked. The record does not reflect that either country considered the other's renewable energy program in calculating its own incentives. The schemes were accomplished by different means, had different victims, and took place primarily in different countries. They were linked too tangentially to be part of the same "scheme, conspiracy, or pattern of criminal activity." 18 U.S.C. § 3663A(a)(2).

The questions of whether Canada decided not to prosecute Stoliar in reliance on the prospect of restitution in this action, or whether Canada's ability to prosecute Stoliar was impaired by this action, were not raised by either party, and therefore are not before us.

We asked the parties to address whether petitioner, a foreign sovereign, is a "person" who may be a "crime victim" under [the federal crime victims' rights statute]. This appears to be an open question in this circuit, but we need not reach it here in light of the disposition above.

Thanks to How Appealing for the pointer.