Vicky cites several cases where courts have heard non-party appeals. None, except United States v. Kones, 77 F.3d 66, 68 (3d Cir.1996), allowed a non-party appeal that would alter a defendant's sentence. See Monzel, 641 F.3d at 542–43.

Those decisions have been reviewed on appeals filed by the alleged victims. See, e.g., United States v. Kones, 77 F.3d 66, 67-68 (3d Cir. 1996) (asserted victim/claimant appealed final judgment of conviction of defendant, where district court had denied restitution to that claimant); see also United States v. Gamma Tech. Indus., Inc., 265 F.3d 917, 920-23 (9th Cir. 2001) (defendants appealed restitution granted in favor of asserted victim/claimant; government sided with defendants; circuit court granted amicus status to claimant and affirmed restitution orders). There are limitations on the relief available under the CVRA.

Courts are more likely to apply the complexity exception if the amount of gain or loss caused by the defendant's offense conduct is difficult to separate from gain or loss attributable to other factors. In United States v. Kones, 77 F.3d 66, 69 (3d Cir. 1996), the Third Circuit explained that the complexity exception in the VWPA was designed to avoid "bring[ing] fault and causation issues before the sentencing court that cannot be resolved with the information otherwise generated in the course of the criminal proceedings on the indictment." The court explained:

Grundhoefer, 916 F.2d at 791. Sevenson argues that our decision in United States v. Kones, 77 F.3d 66, 68 (3d Cir.1996), requires us to conclude that non-parties have standing to appeal restitution orders, and that 28 U.S.C. § 1291 is a broad grant of jurisdiction over all final district court decisions. In Kones, a purported victim sought to appeal the district court's conclusion that she was not entitled to restitution because she was not a “victim” under the VWPA. 77 F.3d at 68.

Therefore, the fact that Defendant only pled guilty to Count Six of the indictment, which charged him with participating in a tax conspiracy, is inapposite. (ECF No. 238.) Defendant was charged with additional crimes in the indictment, some of which "directly and proximately harmed" PA Cyber. 18 U.S.C. § 3771(e)(2)(A); ECF No. 3. The sole decision relied upon by Defendant to support his argument that PA Cyber cannot be deemed a crime victim under the CVRA, United States v. Kones, 77 F.3d 66 (3d Cir. 1996), is readily distinguishable. (ECF No. 260.)

Therefore, restitution must be ordered only if the victims were "directly harmed" by the conspiracy to which Collardeau pleaded guilty. The Third Circuit Court of Appeals interprets "direct" to "require that the harm to the victim be closely related to the scheme, rather than tangentially linked." United States v. Kones, 77 F.3d 66, 71 (3d Cir. 1996). In addition, the Third Circuit Court of Appeals interprets "defendant's criminal conduct in the course of the scheme, conspiracy, or pattern" to mean "conduct that is both engaged in the furtherance of the scheme, conspiracy or pattern, and proscribed by the criminal statute the defendant was convicted of violating."

the burden of adjudicating the restitution issue against the desirability of immediate restitution—or otherwise stated, a weighing of the burden that would be imposed on the court by adjudicating restitution in the criminal case against the burden that would be imposed on the victim by leaving him or her to other available legal remedies. United States v. Kones , 77 F.3d 66, 68–69 (3d Cir. 1996). Put another way, the court abused its discretion by failing to state why the burden of complexity or delay in sentencing outweighed Brown’s need for restitution.

Amy thus runs headlong into the rule against direct appeals of sentences by crime victims. The only case Amy points us to where a court has allowed a crime victim to appeal part of a defendant's sentence is United States v. Kones, 11 F.3d 66 (3d Cir. 1996), in which the Third Circuit heard a victim's appeal of a district court order denying restitution, see id. at 68. Kones's persuasive value on this point is negligible, however, given that the government did not contest the court's jurisdiction to hear the victim's appeal, see Def. Appellee's Br. at 1, Kones, No. 95-1434 (3d Cir. August 16, 1995), and the court's statement of its jurisdiction was one sentence long and devoid of discussion, see 11 F.3d at 68; see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 91, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (stating that "drive-by jurisdictional rulings" where jurisdiction is "assumed by the parties and . . . assumed without discussion by the Court" have "no precedential effect"); Lewis v. Casey, 518 U.S. 343, 352 n. 2, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ("[W]e have repeatedly held that the existence of unaddressed jurisdictional defects has no precedential effect.").

The amendment is widely viewed as partially overruling Hughey's restrictive interpretation of the VWPA and expanding district courts' authority to grant restitution. See United States v. Kones, 77 F.3d 66, 69 (3rd Cir. 1996); United States v. Broughton-Jones, 71 F.3d 1143, 1147 n. 1 (4th Cir. 1995). The majority view is that the 1990 amendment "did have a substantive impact on the amount of restitution a court could order when a defendant is convicted of an offense involving a scheme, conspiracy, or pattern."

Several courts have interpreted this language to hold that restitution: 1) may be ordered to a victim not named in the indictment, provided that the victim was "directly harmed by the defendant's criminal conduct in the course of a scheme or conspiracy." United States v. Henoud, 81 F.3d 484, 489 (4th Cir. 1996); see also United States v. Kones, 77 F.3d 66, 70 (3d Cir. 1996); 2) may be ordered for losses which result from acts or conduct related to the scheme, but for which the defendant was not convicted; cf. United States v. Lawrence, 189 F.3d 838, 846 (9th Cir.1999); United States v. Hensley, 91 F.3d 274, 277 (1st Cir. 1996); or 3) may be ordered for losses of a common scheme, even though the loss was caused by conduct occurring outside the statute of limitations. See United States v. Dickerson, 370 F.3d 1330, 1342 (11th Cir.2004).