United States v. 2006-07-07 | 06-73376 | in Re: Mikhel

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 In re: IOURI MIKHEL,
UNITED STATES OF AMERICA,
Petitioner, No. 06-73376
v. D.C. No.
UNITED STATES DISTRICT CR-02-00220-DT COURT FOR THE CENTRAL
OPINION AND DISTRICT OF CALIFORNIA, ORDER Respondent,
IOURI MIKHEL; JURLIUS KADAMOVAS;
PETRO KRYLOV; NATALYA
SOLOVYEVA,
Real Parties in Interest. 
Petition for Writ of Mandamus to the United States
District Court for the Central District of California
Dickran M. Tevrizian, District Judge, Presiding
Filed July 7, 2006
Before: Michael Daly Hawkins, Sidney R. Thomas, and
Barry G. Silverman, Circuit Judges.
Per Curiam Opinion
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COUNSEL
Andrea L. Russi, Assistant United States Attorney, Los Ange-
les, California, for petitioner United States.
Dale Michael Rubin, San Marino, California, and Richard M.
Callahan, Jr., Pasadena, California, for real party in interest
Iouri Mikhel.
Richard P. Lasting, Santa Monica, California, and Sonia E.
Chahin, La Canada, California, for real party in interest Jur-
lius Kadamovas.
George W. Buehler, Los Angeles, California, and David R.
Evans, Pasadena, California, for real party in interest Petro
Krylov.
Terry J. Amdur, Pasadena, California, and Michael M. Crain,
Santa Monica, California, for real party in interest Natalya
Solovyevae.
OPINION
PER CURIAM:
The United States petitions for a writ a mandamus ordering
the district court to permit certain crime victims to observe in
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its entirety the murder trial in which they will testify, pursuant
to the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C.
§ 3771. For the reasons explained below, we grant the United
States’ petition in part.
Defendants are charged, in pertinent part, with kidnaping
for ransom and then murdering five people who lived in the
Los Angeles area. On May 16, 2006, the United States filed
an unopposed motion in limine to permit the family members
of the murder victims — including those who were to testify
— to witness the defendants’ trial in its entirety. The district
court denied the motion and held that
During the guilt or penalty phase of the trial any vic-
tim or relative of victim may observe the trial. Now,
if that person is going to testify in the guilt phase of
the trial, that witness will be excluded until called as
a witness. After testifying, that witness may remain.
During the penalty phase, the same procedure will be
followed.
The court explained that its ruling served to prevent collusive
witness testimony and to ensure proper courtroom decorum.
The United States petitioned this court for a writ of mandamus.1
[1] In recognition of the substantial deference afforded trial
courts in these matters, our rules have traditionally provided
that non-party witnesses cannot listen to the trial testimony of
other witnesses. FED. R. EVID. 615. Rule 615, however, recog-
nizes an exception for “a person authorized by statute to be
present.” Id. And, it turns out, Congress created just such an
exception for crime victims when it enacted the CVRA and
gave crime victims “[t]he right not to be excluded from any
1Although the United States is clearly not the “victim” in this case, it
is proper that the government bring this petition because § 3771 provides
that “the attorney for the Government may assert the rights described in
subsection (a).” 18 U.S.C. § 3771(d)(1).
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. . . public court proceeding.” 18 U.S.C. § 3771(a)(3).2 A
crime victim, however, does not have an absolute right to wit-
ness a trial at the expense of the defendant’s rights. A district
court may exclude a victim-witness from the courtroom if the
court finds by “clear and convincing evidence . . . that testi-
mony by the victim would be materially altered if the victim
heard other testimony at that proceeding.” Id. That said, even
where a victim-witness may be properly excluded pursuant to
§ 3771(a)(3), “the court shall make every effort to permit the
fullest attendance possible by the victim and shall consider
reasonable alternatives to the exclusion of the victim from the
criminal proceeding.” 18 U.S.C. § 3771(b).
In this case, the district court excluded the victim-witnesses
without determining whether their testimony would be “mate-
rially altered” were they allowed to witness the entire trial.
Nor does it appear that the district court considered whether
there were “reasonable alternatives” that would enable the
victim-witness to attend the trial pursuant to § 3771(b).
[2] While the district court’s summary exclusion of the
victim-witnesses may have been proper under Rule 615 prior
to the enactment of the CRVA, see generally United States v.
West, 607 F.2d 300 (9th Cir. 1979), the CVRA abrogated
Rule 615, at least with respect to crime victims. A mere possi-
bility that a victim-witness may alter his or her testimony as
a result of hearing others testify is therefore insufficient to
justify excluding him or her from trial.3 Rather, a district court
2The definition of a “victim” under the CVRA is not limited to the per-
son against whom a crime was actually perpetrated. Rather, the term “vic-
tim” includes any “person directly and proximately harmed as a result of
the commission of a Federal offense or an offense in the District of
Columbia.” 18 U.S.C. § 3771(e). When the victim is deceased, “the legal
guardians of the crime victim or the representatives of the crime victim’s
estate, family members, or any other persons appointed as suitable by the
court, may assume the crime victim’s rights.” Id. Thus, the family mem-
bers of the murder victims in this case are themselves victims for purposes
of § 3771.
3Because there is always a possibility that one witness will alter his tes-
timony based on the testimony of another, were this the standard, a district
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must find by clear and convincing evidence that it is highly
likely, not merely possible, that the victim-witness will alter
his or her testimony. See United States v. Johnson, 362 F.
Supp. 2d 1043, 1056 (N.D. Iowa 2006) (permitting victim-
witnesses to testify when “each of these witnesses appears
likely to testify during the ‘merits phase’ only as to discrete
factual events surrounding the disappearance of the murder
victims and to identify certain clothing and other items recov-
ered during various searches, which are not matters suscepti-
ble to ‘material alteration’ from hearing the testimony of other
witnesses”).4
[3] Thus, we grant the United States’ petition in part and
instruct the district court to consider whether clear and con-
vincing evidence proves that the victim-witnesses’ testimony
will be “materially altered” if they are allowed to attend the
trial in its entirety. We decline to order the district court to
allow the courtroom presence of the victim-witnesses, or to
provide any other specific instructions. Rather, we simply
remand the issue for reconsideration by the district court in
light of this opinion and the requirements of CVRA. We do
not reach the merits of any other issue.
PETITION GRANTED IN PART; REMANDED.
court could without exception exclude crime victims, and Congress’s
intent to abrogate Rule 615 with respect to crime victims would be ren-
dered meaningless.
4The government argues that the testimony of the victim-witnesses it
intends to call will be analogous to the testimony given by the victim-
witnesses in Johnson. Because the district court did not consider the
victim-witnesses’ intended testimony and there is no evidence of the con-
tents of that testimony in the record before us, we express no opinion as
to the merits of the government’s argument.
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