United States of America v. Michael Lieberman

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-2531
___________
UNITED STATES OF AMERICA
v.
MICHAEL LIEBERMAN,
Appellant
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3:15-cr-00161-001)
District Judge: Honorable Peter G. Sheridan
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on April 20, 2020
Before: JORDAN, BIBAS, and PHIPPS, Circuit Judges
(Opinion filed: April 28, 2020)
____________________________________

-- 1 of 5 --

2
___________
OPINION*
___________
PER CURIAM
Michael Lieberman appeals from the District Court’s order denying what the District
Court construed as a motion for reconsideration of its earlier order substituting an entity as
the victim and primary payee of a restitution award. We will affirm.
I.
In 2015, Lieberman pleaded guilty to one count of wire fraud in violation of 18 U.S.C.
§ 1343. In doing so, he admitted that he embezzled over $1.5 million from his former em-
ployer, Credit Agricole Corporate and Investment Bank. The District Court sentenced
Lieberman to 37 months of imprisonment and two years of supervised release. The District
Court also ordered Lieberman to pay approximately $1.6 million in restitution to the U.S.
Treasury for distribution to Credit Agricole. Lieberman did not appeal or otherwise chal-
lenge his conviction or sentence.
In 2017, the National Union Fire Insurance Company of Pittsburgh, Pennsylvania, in-
formed the District Court that due to its insurance payment to and an accompanying as-
signment agreement with Credit Agricole, it was the proper beneficiary of $1.4 million of
the restitution. Thus, National Union asked the District Court to substitute it for Credit
Agricole as the victim and primary payee of that amount. By order entered April 27, 2017,
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

-- 2 of 5 --

3
the District Court granted National Union’s request and substituted National Union for
Credit Agricole as the victim and primary payee.
About nine months later, Lieberman filed the motion at issue here pro se. He purported
to file it pursuant to the All Writs Act, 28 U.S.C. § 1651, but the District Court treated it
as a motion for reconsideration of its April 27, 2017 substitution order. In his motion,
Lieberman did not challenge any of the terms of the District Court’s initial restitution order.
Instead, his sole argument was that there is no statutory basis under the Mandatory Victim
Restitution Act (MVRA) or otherwise for the District Court’s substitution of National Un-
ion as the victim and primary payee. For relief, he asked the District Court to “withdraw”
its substitution order.
The District Court denied Lieberman’s motion for two reasons. First, the District Court
concluded that Lieberman’s motion was untimely under its local rules governing motions
to reconsider in criminal cases. Second, the District Court concluded that Lieberman’s mo-
tion also lacked merit because the substitution of National Union was permitted and re-
quired by the MVRA.1 Lieberman appeals; we have jurisdiction under 28 U.S.C. § 1291.
II.
In his filings below, Lieberman argued that the District Court lacked statutory authority
to substitute National Union for Credit Agricole as the primary restitution payee. But that
1 In particular, the District Court relied on the provision of the MVRA requiring that “[i]f
a victim has received compensation from insurance or any other source with respect to a
loss, the court shall order that restitution be paid to the person who provided or is obligated
to provide the compensation.” 18 U.S.C. § 3664(j)(1) (emphasis added). As the District
Court recognized, however, the MVRA itself does not provide a postjudgment mechanism
for effectuating that requirement.

-- 3 of 5 --

4
is not the issue that he presents on appeal; in fact, he expressly disavows any challenge to
the merits of the District Court’s decision.
The sole argument Lieberman raises on appeal is that the District Court erred by treating
his motion as a motion for reconsideration rather than a petition under the All Writs Act.
In making that argument, Lieberman asserts that the District Court’s characterization of his
motion as one for reconsideration led the District Court to deny it on the sole ground that
it was untimely and that the District Court did not reach the merits. Thus, Lieberman argues
only that we should remand for the District Court to address the merits in the first instance.
The premise of this argument is incorrect because, as noted above, the District Court
expressly denied Lieberman’s motion on the alternative ground that his motion lacked
merit. Lieberman, however, has expressly declined to raise any issue on the merits on ap-
peal. Indeed, despite making some passing references to the merits, Lieberman ultimately
asserts in his reply brief that “Lieberman’s Appeal is limited to the district court’s treatment
of his motion” as one for reconsideration and “is not aimed at the merits,” Reply Br. 1; that
“the issue on this Appeal is not the attack Lieberman raised below, but the erroneous re-
classification of his motion by the district court,” Reply Br. 2; that “any argument about
th[e] merits is superfluous here,” id.; and that “Lieberman’s Appeal does not address this
issue,” Reply Br. 3. Lieberman makes these assertions by way of arguing that we should
not even address the Government’s defense of the District Court’s ruling on the merits.
Thus, we decline to review that ruling and will affirm on the ground that Lieberman has
waived any challenge to the District Court’s denial of his motion on the merits. In light of
our disposition, we need not reach the Government’s alternative argument that this appeal

-- 4 of 5 --

5
is barred by the appellate and collateral-challenge waivers contained in Lieberman’s plea
agreement.
III.
For these reasons, we will affirm the judgment of the District Court.

-- 5 of 5 --