In Re Rendon Galvis
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.
United States Court of Appeals, Second Circuit.
*171 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.
Before: KEARSE, SACK, and HALL, Circuit Judges.
PER CURIAM:
Before us is a petition for a writ of mandamus brought by Alba Inés Rendón Galvis ("Rendón") pursuant to
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.
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
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"),
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 13in 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,
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
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."
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 asserted by a representative.
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,
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 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,
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 restitution. See United States v. Grundhoefer,
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.
NOTES
Notes
[1] Under the CVRA,
[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 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.
[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.