Vince Andrich, et al v. USDC-CASA

Filing

FILED PER CURIAM OPINION (DIARMUID F. O'SCANNLAIN, EDWARD LEAVY and STEPHEN S. TROTT) DENIED. FILED AND ENTERED JUDGMENT. [7985908]

Case: 11-73630

12/02/2011

ID: 7985908

DktEntry: 6

Page: 1 of 5

FILED
FOR PUBLICATION
UNITED STATES COURT OF APPEALS

DEC 02 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

In re: VINCE ANDRICH; DON
ASPINAL; SCOTT CONNELLY; JEFF
CORBETT; CHARLENE EGLAND;
JERRY GILBERT; RACHEL GREEN;
KEITH LEWIS; DARREN MEADE;
GLENN PUIT; MICHAEL ROBERTS;
MARK WARNER; IRA GILMER; LEE
PATIN; ANTHONY ROBERTS; JIM
ZASLAW.

VINCE ANDRICH; DON ASPINAL;
SCOTT CONNELLY; JEFF CORBETT;
CHARLENE EGLAND; JERRY
GILBERT; RACHEL GREEN; KEITH
LEWIS; DARREN MEADE; GLENN
PUIT; MICHAEL ROBERTS; MARK
WARNER; IRA GILMER; LEE PATIN;
ANTHONY ROBERTS; JIM ZASLAW,
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF
CALIFORNIA, SANTA ANA,
Respondent,

No. 11-73630
D.C. No. 8:07-cr-00249-CJC-1

OPINION

Case: 11-73630

12/02/2011

ID: 7985908

DktEntry: 6

Page: 2 of 5

KIRK A. MCMAHAN and UNITED
STATES OF AMERICA,
Real Parties in Interest.

Petition for Writ of Mandamus to the United States District Court
for the Central District of California
Submitted November 30, 2011
Filed December 2, 2011

*

Before: O’SCANNLAIN, LEAVY, and TROTT, Circuit Judges
PER CURIAM:
This is a petition for a writ of mandamus filed pursuant to 18 U.S.C. § 3771,
the Crime Victims Rights Act (“CVRA”).1 Petitioners challenge the district court’s
order denying their motion to intervene and be heard at defendant-real party in
interest Kirk McMahan’s sentencing hearing as purported crime victims under the
CVRA. The district court held the rights provided by the CVRA did not apply to
petitioners, and also declined to exercise discretion to hear and consider
petitioners’ proffered evidence. Petitioners assert that this court should issue a writ
*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1

Under the CVRA, we must decide this petition “within 72 hours after the
petition has been filed.” 18 U.S.C. § 3771(d)(3). Moreover, if we deny the relief
sought, “the reasons for the denial shall be clearly stated on the record in a written
opinion.” 18 U.S.C. § 3771(d)(3).
2

11-73630

Case: 11-73630

12/02/2011

ID: 7985908

DktEntry: 6

Page: 3 of 5

under the CVRA or under this court’s traditional mandamus authority under 28
U.S.C. § 1651. Both real parties in interest, defendant Kirk McMahan and the
United States, oppose the petition.
When reviewing a petition for a writ of mandamus, the court is generally
guided by the five factors outlined in Bauman v. United States Dist. Court, 557
F.2d 650, 654-55 (9th Cir. 1977): (1) the party seeking the writ has no other
adequate means, such as a direct appeal, to attain the relief he or she desires; (2)
the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3)
the district court's order is clearly erroneous as a matter of law; (4) the district
court's order is an oft-repeated error, or manifests a persistent disregard of the
federal rules; (5) the district court's order raises new and important problems, or
issues of law of first impression. Id. at 654-55. The third factor, the existence of
clear error as a matter of law, is dispositive. See Calderon v. United States Dist.
Court, 98 F.3d 1102, 1105 (9th Cir. 1996). It has long been held that petitioners
must satisfy “the burden of showing that (his) right to issuance of the writ is ‘clear
and indisputable.’” Kerr v. U. S. Dist. Court for Northern Dist. of California, 426
U.S. 394, 403 (1976).
Previous decisions by this court have focused on the third factor when
reviewing CVRA mandamus petitions. See Kenna v. United States District Court,
3

11-73630

Case: 11-73630

12/02/2011

ID: 7985908

DktEntry: 6

Page: 4 of 5

435 F.3d 1011, 1017 (9th Cir.2006) (noting that the focus in reviewing CVRA
petitions is not in balancing all the Bauman factors, but whether the district court
committed legal error or abused its discretion); but see U.S. v. Monzel, 641 F.3d
528, 533 (D.C. Cir. 2011) (traditional standard of review applies to mandamus
petitions brought under CVRA).
We have reviewed the record and we conclude petitioners have not met their
burden. The trial judge did not clearly err as a matter of law, nor did he abuse his
discretion. Accordingly, we deny the petition for writ of mandamus under either
the CVRA or our traditional mandamus authority.
DENIED.

4

11-73630

Case: 11-73630

12/02/2011

ID: 7985908

DktEntry: 6

Page: 5 of 5

COUNSEL
Becky Susan Walker James, Law Offices of Becky Walker James, Los Angeles,
CA, Counsel for Petitioners.
Jennifer L. Waier, Office of the U.S. Attorney, Santa Ana, CA, Counsel for Real
Party in Interest United States.
David William Wiechert, Law Office of David W. Wiechert, San Clemente, CA ,
Counel for Real Party in Interest Kirk A. McMahan.

5

11-73630