On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2-08-cr-0521-001) District Judge: Susan D. Wigenton
The opinion of the court was delivered by: Vanaskie, Circuit Judge.
Submitted Under Third Circuit LAR 34.1 June 21, 2012
Before: AMBRO, VANASKIE and ALDISERT, Circuit Judges
Norman Stoerr was convicted of participating in an illegal bid rigging and kickback scheme in connection with his employment at Sevenson Environmental Services, Inc. ("Sevenson"). Sevenson, a non-party to the underlying criminal proceeding, voluntarily compensated one of Stoerr‟s victims, Tierra Solutions, Inc. ("Tierra"). At Stoerr‟s sentencing, Sevenson sought restitution under the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A et seq., for reimbursement of the amount that it paid as compensation to Tierra. The District Court denied Sevenson‟s request for restitution, instead ordering that Stoerr pay restitution to Tierra. Sevenson now attempts to appeal Stoerr‟s sentence, contending that the District Court erred in declining to grant its request for restitution. We will dismiss Sevenson‟s appeal because, as a non-party, it lacks standing to appeal.
On July 23, 2008, Stoerr pled guilty to bid rigging, in violation of 15 U.S.C. § 1; conspiracy to provide kickbacks and to defraud the United States, in violation of 18 U.S.C. § 371; and assisting in the preparation of false tax returns, in violation of 26 U.S.C. § 7206(2). The convictions stemmed from kickback payments that Stoerr solicited and accepted from sub-contractors in connection with projects managed by Sevenson, his employer from 1980 to October 2003.
Sevenson obtained contracts in 2000 and 2004 with the United States Army Corps of Engineers to perform remediation services as the prime contractor at the Federal Creosote Superfund Site ("Federal Creosote") in Manville, New Jersey. From 1999 to 2007, Sevenson also had a contract with Tierra, a private company, to perform remediation services as the general contractor at the Diamond Alkali Superfund Site ("Diamond Alkali") in Newark, New Jersey. The Environmental Protection Agency was responsible for paying Sevenson for its services at Federal Creosote, and Tierra was responsible for paying Sevenson for its services at Diamond Alkali. At both project sites, Sevenson hired sub-contractors, and then sought reimbursement from the payer for the sub-contractor charges, plus a fee equal to a fixed percentage of the sub-contractor charges.
From 2000 to 2002, Stoerr was the superintendent at Diamond Alkali, and from 2002 to 2003, he was the assistant project manager/contracts administrator at Federal Creosote. At Diamond Alkali, Stoerr was responsible for soliciting vendors, and at Federal Creosote, he was responsible for soliciting bids for sub-contracts. In both positions, he reported to Gordon McDonald, the project manager.
From 2000 to 2004, Stoerr, at McDonald‟s direction, solicited and accepted kickbacks valued at $77,132 from sub- contracting companies National Industrial, Inc. ("National Industrial"), JMJ Environmental Services, Inc. ("JMJ"), Bennett Environmental Inc., and Haas Sand & Gravel LLC.*fn1 In return for the kickbacks, Stoerr and McDonald treated the sub-contracting companies favorably in awarding sub- contracts for the Federal Creosote and Diamond Alkali projects.
Stoerr and McDonald passed the cost of the kickbacks on to Tierra and to the EPA by including the amount of the kickbacks in the sub-contractors‟ invoices that they submitted for reimbursement. In total, the District Court determined that Stoerr‟s and McDonald‟s scheme resulted in losses of $134,098.96 to the EPA and $257,129.22 to Tierra. Of the $257,129.22 in losses to Tierra, the District Court found that $25,000 related to kickback payments from National Industrial and its partial owner, Victor Boski, and $232,129.22 related to kickback payments from JMJ and its owner, John Drimak Jr.
After Sevenson learned of the kickbacks scheme, it paid Tierra $202,759.04 to compensate it for its losses relating to the JMJ and Drimak scheme, and $38,158.11 to compensate it for its losses relating to the National Industrial and Boski scheme. It then commenced a civil action against Stoerr in state court to ...