United States v. McDorman , 305 F. App'x 187 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 15, 2008
No. 08-40599 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROBERT L MCDORMAN
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CR-60-1
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Robert McDorman (“McDorman”) pled guilty to bank fraud subject to a
plea agreement which ordered him to pay $3,374,256.21 in restitution to
Mauriceville National Bank (“MNB”). In a later civil action, a jury found that
MNB was in pari delicto with McDorman, and should therefore not recover
under the civil provisions of the Racketeer Influenced and Corrupt
Organizations Act (RICO) or Texas law. See Rogers v. McDorman, 521 F.3d 381
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
No. 08-40599
(5th Cir. 2008) (relating the facts and upholding the jury’s verdict). McDorman
now challenges the criminal restitution order, arguing that because MNB was
found to be in pari delicto it would be inequitable to award it the ordered
restitution.
McDorman argues that the restitution is civil in nature, so the district
court should reconsider its order under Rule 60(b) of the Federal Rules of Civil
Procedure. The Federal Rules of Civil Procedure, however, “govern the
procedure in all civil actions and proceedings,” FED. R. CIV. P. 1, while the
Federal Rules of Criminal Procedure “govern the procedure in all criminal
proceedings,” FED. R. CRIM. P. 1(a)(1). The word “action” as used in the Federal
Rules of Civil Procedure denotes “the entire controversy.” Hargrave v. Oki
Nursery, Inc., 646 F.2d 716, 719 (2d Cir. 1980). “Proceeding” means “[t]he
regular and orderly progression of a lawsuit, including all acts and events
between the time of commencement and the entry of judgment.” BLACK’S LAW
DICTIONARY 1241 (8th ed. 2004). There is no dispute that restitution was
ordered as part of McDorman’s criminal case, and not as part of any civil action
or proceeding. The penal or compensatory nature of the restitution does not
alter the fact that this was a criminal case governed by the Federal Rules of
Criminal Procedure. The “Federal Rules of Civil Procedure do not apply to
criminal cases.” United States v. Jaimes-Jurado, 254 F. App’x 341, 342 (5th Cir.
2007) (unpublished); see also United States v. Graham, 248 F. App’x 929, 931
(10th Cir. 2007) (unpublished) (“Rule 60(b) is not applicable in criminal cases.”).
McDorman’s arguments pursuant to Rule 60(b) thus fail.
In the alternative, McDorman argues for the first time on appeal that we
should issue a writ of coram nobis to deny restitution to MNB or that we should
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No. 08-40599
view the take-nothing civil judgment as a subsequent recovery for MNB. But
MNB recovered nothing from the civil case, and so there has been no satisfaction
of the restitution ordered. Nor do we conclude that a later take-nothing
judgment by a civil jury constitutes an error by the criminal court “of the most
fundamental character” that it would justify a writ of coram nobis. See United
States v. Morgan, 346 U.S. 502, 512 (1954). McDorman voluntarily agreed as
part of his plea agreement to pay MNB $3,374,256.21. He has provided no
grounds that would lead us to invalidate that agreement years after the
judgment in his criminal case has become final.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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