09-1576-op
In Re: Alba Ines Rendon Galvis

                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                    _____________________

                                        August Term, 2008
(Argued: April 21, 2009                                                    Decided: April 27, 2009)
                                     Docket No. 09-1576-op
                                    _____________________

                                 In Re: Alba Inés Rendón Galvis,

                                                                      Petitioner,
                                   _______________________

                                     United States of America,

                                                                      Plaintiff,

                                                 v.

            Diego Fernando Murillo-Bejerano, a/k/a Don Bernardo, a/k/a Don Berna,
               a/k/a Adolfo Paz, Vicente Castano-Gil, a/k/a Profe, David Donado,

                                                                      Defendants.
                                   _______________________

                      Before KEARSE, SACK, and HALL, Circuit Judges.
                                _______________________

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.
_______________________

               Lee-Anne V. Mulholland (Leo P. Cunningham, on the brief), Wilson Sonsini
               Goodrich & Rosati, Palo Alto, CA (Roxanna Altholz, International Human Rights
               Law Clinic, University of California Berkeley School of Law, Berkeley CA, on
               the brief), for Petitioner.
               Jesse M. Furman, Assistant United States Attorney (Eric Snyder and Anjan Sahni,
               Assistant United States Attorneys, on the brief, Katherine Polk Failla, Assistant
               United States Attorney, of counsel ), for Lev L. Dassin, Acting United States
               Attorney for the Southern District of New York, New York, NY, for Plaintiff.

            James E. Neuman, New York, NY, for Defendant Murillo-Bejarano.
_______________________

PER CURIAM:

       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.

Background

       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.



                                                2
       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,1 to be allowed to confer with the Government, to be heard

  1
   Under the CVRA, 18 U.S.C. § 3771(e), the term “crime victim” is defined as “a person directly
  and proximately harmed as a result of the commission of a Federal offense.” For purposes of the
  MVRA and the VWPA:

          [T]he term “victim” means a person directly and proximately harmed as a result of
          the commission of an offense for which restitution may be ordered including, in the

                                                   3
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

          case of an offense that involves as an element a scheme, conspiracy, or pattern of
          criminal activity, any person directly harmed by the defendant’s criminal conduct
          in the course of the scheme, conspiracy, or pattern.
          18 U.S.C. § 3663A(a)(2), 18 U.S.C. § 3663(a)(2).

                                                 4
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.


                                                  5
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 the denial of the VWPA claim followed from denial of the

CVRA claim because Rendón had failed to show that Vargas’s murder was causally linked to the

drug conspiracy. 2

                                             Discussion

       2
          Murillo-Bejarano also argues that the petition should be denied because the process of
determining restitution would be too complicated and time-consuming. Because of our
disposition of the petition, we do not reach this argument.

                                                   6
       The CVRA guarantees to the victims of federal crimes an array of substantive and

participatory rights, including the rights “to be reasonably heard at any public proceeding in the

district court involving release, plea, sentencing, or any parole proceeding,” “to confer with the

attorney for the Government in the case,” and to receive “full and timely restitution as provided

in law.” 18 U.S.C. § 3771(a)(4)-(6). “In any court proceeding involving an offense against a

crime victim, the court shall ensure that the crime victim is afforded th[ose] rights.” 18 U.S.C.

§ 3771(b)(1). The district court must decide a putative victim’s motion asserting rights under the

CVRA, and, following denial of the motion, “the movant may petition the court of appeals for a

writ of mandamus.” 18 U.S.C. § 3771(d)(3). This Court reviews a district court’s determination

under the CVRA for abuse of discretion. In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 563

(2d Cir. 2005). This Court reviews for clear error any factual findings made by the district court

in determining a putative victim’s motion to enforce her rights. See United States v. De La

Fuente, 353 F.3d 766, 772 (9th Cir. 2003) (stating that, under the MVRA, the district court’s

factual findings underlying determination of victim status are reviewed for clear error, “including

factual findings regarding causation”); see also United States v. Olson, 104 F.3d 1234, 1237

(10th Cir. 1997) (reviewing restitution order under the VWPA); see generally Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 401 (1990) (“When an appellate court reviews a district court's

factual findings, the abuse-of-discretion and clearly erroneous standards are indistinguishable: A

court of appeals would be justified in concluding that a district court had abused its discretion in

making a factual finding only if the finding were clearly erroneous.”).

       A “crime victim” is defined in the CVRA as “a person directly and proximately harmed

as a result of the commission of a Federal offense;” a deceased crime victim’s rights may be


                                                  7
asserted by a representative. 18 U.S.C. § 3771(e). The requirement that the victim be “directly

and proximately harmed” encompasses the traditional “but for” and proximate cause analyses.

See In re Antrobus, 519 F.3d 1123, 1126 (10th Cir. 2008) (Tymkovich, J., concurring); Sharp,

463 F. Supp. 2d at 567. The necessary inquiry is a fact-specific one. See United States v.

Hunter, 2008 U.S. Dist. LEXIS 443, *17 (D. Utah Jan. 3, 2008), mandamus denied, In re

Antrobus, 519 F.3d 1123.

       Without expounding on its reasoning, the district court characterized the defendant’s

position as arguing that “Rendón is not a crime victim under the CVRA because the harm to her

son was not a direct and proximate result of conspiring to import cocaine into the United States,

which is the crime of conviction here,” and, in agreeing with the Government, quoted Sharp’s

holding 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.” See

Sharp, 463 F. Supp. 2d at 566 (finding victim’s harm to be “too attenuated” from the conspiracy

to satisfy the CVRA). The district court did not explicitly impose any per se rule defining a

victim according to the elements of the crime or offense of conviction. To the extent that the

district court adopted the Government’s argument in that regard, however, we need not decide

here whether such a rule is appropriate because the district court correctly found that, even

considering Rendón’s factual allegations, there was insufficient evidence of a nexus between

Vargas’s death and Murillo-Bejarano’s participation in the charged conspiracy to import cocaine.

       It is undisputed that Vargas was murdered and that Murillo-Bejarano was, to some extent,

responsible. With regard to the federal crime of conspiring to import cocaine into the United

States, however, Rendón has alleged only that there was a symbiotic relationship between the


                                                 8
AUC’s drug-trafficking and its terrorist operations and that Vargas’s abduction and murder took

place in a geographic area that was significant for the AUC’s drug-trafficking operations.

Rendón has not specified a motivation for Vargas’s murder, stating both that the AUC used force

to secure strategic drug-trafficking areas and also that the AUC targeted individuals who did not

express support for the AUC. Evidence in the record demonstrates that active military operations

involving the AUC were ongoing in Comuna 13 at the time of Vargas’s death and that Murillo-

Bejarano’ AUC subgroup, the BCN, had multiple sources of funding.

               Based on the submissions by Rendón and Murillo-Bejarano, the district court

found that Murillo-Bejarano had accepted responsibility for Vargas’s murder in his capacity as a

military leader, and that there was “chaotic” violence in Comuna 13 inflicted by both drug gangs

and paramilitaries. While the evidence may suggest some linkages between Vargas’s murder and

the drug conspiracy, we do not find any clear error in the district court’s conclusion that Rendón

ultimately failed to show the requisite causal connection between the two. As in Sharp, “there

are too many questions left unanswered concerning the link between the Defendant’s federal

offense and [the petitioner’s harm].” Sharp, 463 F. Supp. 2d at 566. Because we find no clear

error in the district court’s finding that Rendón did not establish direct and proximate harm either

to herself or to her son resulting from Murillo-Bejarano’s participation in the drug conspiracy

with which he has been charged and to which he has pled guilty, the district court properly

determined that Rendón was not a “crime victim” and thus did not abuse its discretion in denying

her motion.

               To the extent that Rendón petitions independently for relief under the VWPA, we

deny mandamus because that statute does not provide a private remedy for victims denied


                                                 9
restitution. See United States v. Grundhoefer, 916 F.2d 788, 792-793 (2d Cir. 1990) (“The

victim as a non-party is accorded only a limited presence at a sentencing proceeding and has no

right to appeal an inadequate remedy.”) (citing United States v. Brown, 744 F.2d 905, 910 (2d

Cir. 1984)); see also United States v. Mindel, 80 F.3d 394, 395-96 (9th Cir. 1996) (holding that

crime victim lacks standing to appeal or to petition for mandamus review of order rescinding

restitution payments). We do note that the district court properly found that Rendón did not

satisfy the definition of victim under the VWPA because she failed to demonstrate that she was

“directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or

pattern.” 18 U.S.C. § 3663(a)(2).



                                               Conclusion

               For the foregoing reasons, we hold the district court did not abuse its discretion in

denying Rendón’s motion to enforce her rights as a victim and DENY the petition for mandamus.




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