in Re Her Majesty the Queen in Right of Canada. Her Majesty the Queen in Right of Canada v. United States District Court for the District of Nevada, Las Vegas

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE HER MAJESTY THE QUEEN IN
RIGHT OF CANADA.
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA,
Petitioner,
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA, LAS
VEGAS,
Respondent,
NATHAN “NATI” STOLIAR AKA
Natan Stoliar; CLARK COUNTY D.A.
OFFICE; YAKOV HEFETZ; ROBERT
CASEY; AD ASTRA ENERGY, INC.;
UNITED STATES OF AMERICA,
Real Parties in Interest.
No. 15-71346
D.C. No.
2:14-cr-00006-
APG-GWF
OPINION
Petition for Writ of Mandamus
Submitted May 12, 2015*
San Francisco, California
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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IN RE HER MAJESTY THE QUEEN IN RIGHT OF CANADA 2
Filed May 12, 2015
Before: Alfred T. Goodwin, Jerome Farris,
and Michelle T. Friedland, Circuit Judges.
Per Curiam Opinion
SUMMARY**
Crime Victims’ Rights Act
The panel denied Her Majesty the Queen in Right of
Canada’s petition for a writ of mandamus pursuant to the
Crime Victims’ Rights Act challenging the district court’s
order denying Canada restitution from Nathan Stoliar, who
was convicted for a scheme revolving around the false
generation of United States biodiesel credits.
The panel held that Canada’s claim for restitution is based
on events – biofuel subsidy fraud in Canada – that are
insufficiently related to the schemes set forth in the
indictment and the facts supporting Stoliar’s guilty plea to be
part of the same “scheme, conspiracy, or pattern of criminal
activity” under 18 U.S.C. § 3663A(a)(2).
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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IN RE HER MAJESTY THE QUEEN IN RIGHT OF CANADA 3
COUNSEL
Todd M. Leventhal, Leventhal & Associates, Las Vegas,
Nevada, for Petitioner.
David Z. Chesnoff and Richard A. Schonfeld, Chesnoff &
Schonfeld, Las Vegas, Nevada, for Real Party in Interest
Nathan “Nati” Stoliar.
Daniel G. Bogden, United States Attorney, Elizabeth Olson
White, Appellate Chief and Assistant United States Attorney,
United States Attorney’s Office, Reno, Nevada; John C.
Cruden, Assistant Attorney General, and Wayne D.
Hettenbach, Senior Trial Attorney, Environment and Natural
Resources Division, United States Department of Justice,
Washington, D.C., for Real Party in Interest United States of
America.
OPINION
PER CURIAM:
This is a petition for a writ of mandamus filed pursuant to
the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771.
Defendant Nathan Stoliar was convicted and sentenced on
April 9, 2015, for conspiracy to commit criminal offenses and
to defraud the United States in violation of 18 U.S.C. § 371;
conspiracy to launder monetary instruments in violation of
18 U.S.C. § 1956(h); two counts of wire fraud and aiding and
abetting in violation of 18 U.S.C. §§ 1343 and 2; and making
false statements related to the Clean Air Act and aiding and
abetting in violation of 42 U.S.C. § 7413(c)(2)(A) and

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IN RE HER MAJESTY THE QUEEN IN RIGHT OF CANADA 4
18 U.S.C. § 2. Stoliar’s convictions were 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. Stoliar was sentenced on
April 9, 2015, and the district court heard argument on
Canada’s petition.1 On April 21, 2015, the district court
entered an order denying restitution to Canada. On May 4,
2015, Canada filed this petition, timely challenging the denial
of restitution.
In reviewing CVRA mandamus petitions, this court does
not balance the factors outlined in Bauman v. United States
District Court, 557 F.2d 650, 654–55 (9th Cir. 1977). See
Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir.
2006). Rather, we “must issue the writ whenever we find that
1 Both real parties in interest note petitioner’s failure to obtain the
sentencing transcript and file it in support of the CVRA petition, and
Stoliar contends that the petition may be summarily denied on the ground
that petitioner has failed to provide an essential part of the record. See
Fed. R. App. P. 21(a)(2)(C); see also, e.g., Syncom Capital Corp. v. Wade,
924 F.2d 167, 169 (9th Cir. 1991) (per curiam). Although counsel for
petitioner was remiss in not obtaining the transcript, the record and the
district court’s written order enable us to review this petition on the merits.

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IN RE HER MAJESTY THE QUEEN IN RIGHT OF CANADA 5
the district court’s order reflects an abuse of discretion or
legal error.” Id.
This petition is filed under the CVRA, but the CVRA is
not a substantive basis for an award of restitution. Rather, it
confirms that a crime victim has a right to “full and timely
restitution as provided in law.” 18 U.S.C. § 3771(a)(6).2 A
petitioner seeking restitution under the CVRA must also rely
on a substantive restitution statute. Petitioner sought
restitution pursuant to the Mandatory Victims Restitution Act
(“MVRA”), 18 U.S.C. § 3663A(a)(1), (c)(1). The MVRA
requires restitution to victims of offenses against property,
“including any offense committed by fraud or deceit.”
18 U.S.C. § 3663A(c)(1)(A)(ii).3 The amount of loss for the
purpose of setting restitution must be proved by a
preponderance of the evidence. United States v. Gamma Tech
Indus., 265 F.3d 917, 924 (9th Cir. 2001).
Stoliar was convicted of crimes that require proof of a
“scheme, conspiracy, or pattern of criminal activity,” so
restitution may be ordered for all persons directly harmed by
the entire scheme. Such restitution is not limited to harm
caused by the particular counts of conviction (as it would be
2 It also provides, inter alia, the procedure for this mandamus petition,
18 U.S.C. § 3771(d)(3), and defines who is a “crime victim” protected by
the CVRA, 18 U.S.C. § 3771(e).
3 The MVRA further provides that “the term ‘victim’ means a person
directly and proximately harmed as a result of the commission of an
offense for which restitution may be ordered including, in the case of an
offense that involves as an element a scheme, conspiracy, or pattern of
criminal activity, any person directly harmed by the defendant’s criminal
conduct in the course of the scheme, conspiracy, or pattern.” 18 U.S.C.
§ 3663A(a)(2).

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IN RE HER MAJESTY THE QUEEN IN RIGHT OF CANADA 6
absent the scheme element). See United States v. Booth,
309 F.3d 566, 575–76 (9th Cir. 2002). In this context, a
restitution order may be based on related but uncharged
conduct that is part of a fraud scheme. See United States v.
Grice, 319 F.3d 1174, 1177 (9th Cir. 2003) (affirming
restitution of loss from uncharged conduct beginning prior to
the effective date of the MVRA). The harm to the victim
must, however, be closely related to the scheme, rather than
tangentially linked. United States v. Riley, 143 F.3d 1289,
1292 (9th Cir. 1998) (quoting United States v. Kones, 77 F.3d
66, 70 (3rd Cir. 1996)); see also Gamma Tech Indus.,
265 F.3d at 928 (“the loss cannot be too far removed from”
the “conduct underlying the offense of conviction”).
Canada’s claim for restitution is based on events that are
insufficiently related to the schemes set forth in the
indictment and the facts supporting Stoliar’s guilty plea.
Canada entered into contracts with City Farm, a Canadian
company, pursuant to which Canada’s Department of Natural
Resources would make contribution and incentive payments
to support City Farm’s supposed production of biodiesel in
Canada. After being purchased by Stoliar and his co-
defendant, City Farm falsely represented to Canada that it
was producing more biodiesel than it was. Canada now seeks
restitution of 1,233,065.32 CAD in fraudulently-obtained
subsidies.
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.

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IN RE HER MAJESTY THE QUEEN IN RIGHT OF CANADA 7
The schemes, however, were different. The indictment
charged, and the facts supporting the guilty plea described, a
scheme revolving around the false generation and use of
United States biodiesel credits known as renewable
identification numbers (“RINs”).4 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 18 U.S.C. § 3771(e).5 This appears to be an open
4 RINs are credits that United States importers and producers can
generate when they import or generate pure biodiesel. RINs are
commodities that can be bought and sold with the biodiesel, or separated
from the biodiesel and bought and sold on a secondary market.
5 This subsection defines “crime victim” for the purposes of the CVRA
as “a person directly and proximately harmed as a result of the
commission of a Federal offense. . . .” 18 U.S.C. § 3771(e).

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IN RE HER MAJESTY THE QUEEN IN RIGHT OF CANADA 8
question in this circuit, but we need not reach it here in light
of the disposition above.
The petition for a writ of mandamus is denied.
DENIED.

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