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In re Galvis

April 27, 2009



The petitioner seeks relief by way of a petition for mandamus brought under the provisions of the Crime Victims Rights Act, 18 U.S.C. § 3771, seeking recognition as a crime victim and restitution for the death of her son. Because the petitioner's son's death was not shown to have been a direct and proximate harm resulting from the federal crime of conspiring to import cocaine with which the defendant was charged and to which he pled guilty, we hold that the petitioner is not a crime victim under the Act and is not otherwise entitled to restitution. The district court did not err in so finding nor abuse its discretion in denying petitioner's motion. The petition for mandamus is, therefore, DENIED.

Per curiam.

Argued: April 21, 2009

Before KEARSE, SACK, and HALL, Circuit Judges.

Before us is a petition for a writ of mandamus brought by Alba Inés Rendón Galvis ("Rendón") pursuant to 18 U.S.C. § 3771(d)(3) seeking to have this Court reassess her entitlement to certain rights afforded by the Crime Victims' Rights Act of 2004 ("CVRA"), 18 U.S.C. § 3771, and the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. § 3663. The petition was filed on April 16, 2009. The Court heard oral argument on April 21, within three days (not counting the intervening weekend) of the filing, and that day we issued an order denying the petition, noting that this opinion would follow. In essence, Rendón appeals from the March 4, 2009 ruling of the United States District Court for the Southern District of New York (Berman, J.) denying her status as a crime victim in the case United States v. Murillo-Bejarano, No. 03-cr-1188. Because the district court did not abuse its discretion in finding that Rendón was not a "crime victim" as defined by the CVRA, and because she has no standing to challenge the district court's ruling under the VWPA, we deny the petition.


In 2002, Rendón's son, Juan Fernando Vargas Rendón ("Vargas"), was murdered in the Comuna 13 section of Medellín, Colombia, by paramilitaries affiliated with the Autodefensas Unidas de Colombia ("AUC")-classified by the United States Department of State as a terrorist organization. His body was discovered in a mass grave.

Diego Fernando Murillo-Bejarano, an AUC leader and commander of the AUC subgroup operating in Comuna 13, Cacique Nutibara Bloc ("BCN"), was charged in a Colombian criminal proceeding with conspiring to commit the aggravated homicide and forced disappearance of residents of Comuna 13, including Vargas. Although he had not perpetrated the crimes directly, he pled guilty to the charges, confessing to being responsible for the crimes in his capacity as BCN commander. He was later extradited in 2008 to the United States, where he was charged in a two-count indictment with: (1) conspiracy to import into the United States, and to distribute with the intent that it be imported, at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 812, 952(a), 959(a), 960(b)(1)(B)(ii), and 963; and (2) conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B) and 1956(h). After initially entering a plea of not guilty, he has now pled guilty in the district court to the first count of the indictment, with the agreement that the Government would move to dismiss the second count at sentencing. Neither the federal indictment charging Murillo-Bejarano, nor his plea agreement, aside from a stipulation that he possessed a firearm in connection with the count-one conspiracy offense, nor Murillo-Bejarano's colloquy at the change-of-plea proceedings makes reference to his engaging in any violent conduct.

In February 2009, Rendón filed a motion in the district court seeking to enforce her rights as a crime victim under the CVRA, the VWPA, and the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A,*fn1 to be allowed to confer with the Government, to be heard before sentencing, and to receive restitution. She argued that Murillo-Bejarano's participation in the charged conspiracy was the actual and proximate cause of her son's death because the AUC had targeted Comuna 13 for its importance as a drug-trafficking corridor, using disappearances and executions to gain control of the area, and because the AUC had financed its terrorist activities with drug proceeds. She argued that the CVRA should be interpreted to include the victims of any acts related to the charged conspiracy, regardless of whether the acts were described in the indictment or plea agreement, and also to include the victims of acts of the defendant's co-conspirators. Rendón claimed that a broad interpretation of the definition of "crime victim" under the CVRA is consistent with its underlying legislative intent. See 108 CONG. REC. S10912 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl) ("[A]ll victims of crime deserve to have their rights protected, whether or not they are the victim of the count charged.").

The Government and Murillo-Bejarano opposed Rendón's motion. The Government argued that Congress had intended to limit the definition of "crime victim" to those affected by the specific conduct that is the basis of the offense. The Government also argued that, even under a broader interpretation of "crime victim," the court would have to determine whether Vargas's murder was related to the AUC's narcotics operations, rather than to its other activities such as its conflict with the Fuerzas Armadas Revolucionarias de Colombia ("FARC"), and the Government pointed to evidence in the record showing that the AUC had not received all of its financing from narcotics. The Government further argued that Rendón was not entitled to restitution under the VWPA because she had not shown that her son's murder was in furtherance of the narcotics conspiracy. The Government also noted that although it was not obligated to do so, it had offered to confer with Rendón in advance of sentencing and, at the Court's discretion, to facilitate her participation in the sentencing process. For his part, Murillo-Bejarano argued that there was no evidence that Vargas's murder had been committed in furtherance of the drug conspiracy to which he had pleaded guilty. He suggested that Vargas's death had taken place in the course of a series of military operations in which an alliance of police, military, and local security forces had seized control of Comuna 13 from the FARC. He claimed that, "despite the fact that the order was not to commit any unnecessary serious crimes, excesses were committed," and he noted that he had previously accepted responsibility for "his failure as a military boss, to properly control his troops."

After hearing oral argument on the motion, the district court found that Rendón had not met the statutory definition of a "victim" under any of the statutes. In making its findings of fact, the district court credited Murillo-Bejarano's assertions that "excesses" had been committed despite his orders, as the BCN commander, that unnecessary serious crimes be avoided in Comuna 13. The district court further found that Murillo-Bejarano had accepted responsibility for Vargas's death based on his failure to control his troops, and had surrendered numerous properties to the Colombian Justice and Peace Process for victim compensation. As "background" for its ruling, the district court referred to evidence in the record stating that Comuna 13 had been overrun with "[l]eft-wing [guerillas], right-wing paramilitaries and well[-]armed drug gangs" and that "[i]n 2002, the casualty count for Comuna 13-in chaotic street fights, targeted assassinations and neighborhood-wide 'cleansings'-numbered in the hundreds." Based on these facts, the district court held, quoting from United States v. Sharp, 463 F. Supp. 2d 556, 566 (E.D. Va. 2006), that "[the movant] is not a victim as that term is used in the CVRA because she is not a person directly and proximately harmed by the federal crime committed by defendant." The district court also denied Rendón's motion with regard to restitution under the MVRA and the VWPA, indicating that the denials "follow[ed]" from the denial under the CVRA.

Rendón now argues to this Court that the district court abused its discretion by applying an elements-of-the-offense-based approach to analyzing whether she is a crime victim. She also argues that the district court abused its discretion by failing to assess independently her eligibility for restitution under the VWPA.

The Government and Murillo-Bejarano oppose the petition, arguing that the district court correctly found that the CVRA requires a putative victim to have been directly and proximately harmed as a result of the conduct underlying the elements of the offense to which the defendant has pled guilty and that, even if the district court erred in undertaking an element-based approach, it found correctly that Rendón has failed, as a matter of fact, to establish causation. The Government further argues that Rendón's VWPA claim is not governed by the CVRA's mandamus provisions and fails under the conventional mandamus standard and that the district court properly ruled, in any event, that ...

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