IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 7, 2008
No. 08-20125 Charles R. Fulbruge III
Clerk
In Re:
ALISA DEAN; RALPH DEAN; RACY DONAIE; TYRONE SMITH;
RONALD DUHAN; MARY ANN DUHAN; MICHAEL JORDAN;
KELLY PORTER; HENRY RIVERA; MARIA RIVERA;
SANDRA THOMAS; CALVIN THOMAS,
Petitioners.
Petition for Writ of Mandamus to
the United States District Court
for the Southern District of Texas
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:
In the related criminal proceeding, twelve of the victims asked the district
court to reject the plea agreement, alleging violations of the Crime Victims’
Rights Act (“CVRA”), 18 U.S.C. § 3771. The district court denied the request.
See United States v. BP Prods. N. Am. Inc., No. H-07-434, 2008 U.S. Dist. LEXIS
12893 (S.D. Tex. Feb. 21, 2008). The victims petition for writ of mandamus with
No. 08-20125
the prayer that “[t]he decision of the district court should be reversed and the
case remanded with instructions that the plea agreement [not be] accepted and
the parties are permitted to proceed as they determineSSso long as it is in a way
that respects crime victims’ rights.” We find a statutory violation but, for rea-
sons we explain, we deny relief.
I.
The factual background and the judicial events that led to the mandamus
petition are cogently set forth in the district court’s Memorandum and Order, id.
at *3-*18, in the criminal case. As there explained, an explosion at a refinery op-
erated by the criminal defendant, BP Products North America Inc. (“BP”), killed
fifteen and injured more than 170. Extensive civil litigation ensued.
The Department of Justice investigated the possibility of federal criminal
violations. Before bringing any charges, the government, on October 18, 2007,
filed a sealed ex parte motion for “an order outlining the procedures to be fol-
lowed under the [CVRA].” The government announced that a plea agreement
was expected to be signed in about a week and that because of the number of vic-
tims, “consulting the victims prior to reaching a plea agreement would not be
practicable” and that notifying the victims would result in media coverage that
“could impair the plea negotiation process and may prejudice the case in the
event that no plea is reached.”
As explained in the district court’s order, the government, in its sealed ex
parte motion, made specific recommendations for how the court should fashion
a “reasonable procedure” under the CVRA’s multiple crime victim exception.
The district court, per an order signed by a district judge who had been assigned
to the case in its status as a miscellaneous matter, see id. at *4 n.1, responded
with impressive speed, issuing on that same day a sealed order finding that
notification to victims in advance of the public announcement of a plea
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agreement was impracticable because of the “large number of victims” and
because, on account of the extensive media coverage, “any public notification of
a potential criminal disposition resulting from the government’s investigation
[of the] explosion would prejudice [BP] and could impair the plea negotiation
process and may prejudice the case in the event that no plea is reached.” The ex
parte order prohibited the government from notifying victims of a potential plea
agreement until one had been executed; it directed that once an agreement had
been signed, the government “shall provide reasonable notice to all identifiable
victims and afford the victims the rights set forth [in the CVRA] prior to actual
entry of the guilty plea . . . .”
The government filed the criminal information under seal on October 22.
Two days later, the government and BP signed the plea agreement. The next
day, the information was unsealed, and the plea agreement was announced. The
government mailed three notices to the victims, in November and January, ad-
vising of scheduled proceedings and of their right to be heard. On November 20
and 23, various victims moved to appear and asked that the plea agreement be
rejected or at least that the court handling the criminal matter require a presen-
tence report.
After two district judges had declared themselves recused, the matter was
permanently assigned, as a criminal matter, to the judge who entered the Febru-
ary 21 order that is the subject of this mandamus petition. Some victims ap-
peared through counsel at a status conference on November 28 and presented
their opposition to the plea agreement; 134 of them filed victim impact state-
ments.
BP pleaded guilty at a hearing on February 4. All victims who wished to
be heard, personally or through counsel, were permitted to speak. The attorneys
reiterated the victims’ request that the court reject the plea agreement on the
basis of the CVRA violations alone; the district court reserved decision on the
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victims’ other challenges to the plea agreement. As the district court describes
it, “the victims focused on three challenges: the fine was too low; the probation
conditions were too lenient; and certain CVRA requirements had been violated.”
BP Prods., 2008 U.S. Dist. LEXIS 12893, at *15. The victims and their attorneys
supplemented their appearances at the hearing with substantial post-hearing
submissions.
On February 21, the district court entered the above-cited order, denying
the victims’ request that the court reject the plea agreement. Feeling aggrieved
by the order, the victims filed the instant mandamus petition on February 28.
Also on that date, a panel of this court, in compliance with the requirement of
18 U.S.C. § 3771(d)(3) that we act within seventy-two hours, entered an order
granting the mandamus petition in part: It directed the district court to take no
further action to effect the plea agreement, pending further order and awaiting
additional briefing.
II.
The parties dispute the standard of review. The victims assert that de-
spite the fact that the CVRA states that “[i]f the district court denies the relief
sought [by a victim], the movant may petition the court of appeals for a writ of
mandamus,” 18 U.S.C. § 3771(d)(3), the ordinary appeal standards (instead of
the stricter standards for obtaining a writ of mandamus) apply. Two circuits
agree with the victims. See Kenna v. United States Dist. Court, 435 F.3d 1011,
1017 (9th Cir. 2006); In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 563 (2d Cir.
2005).
The Tenth Circuit, however, taking the view that “[m]andamus is a well
worn term of art in our common law tradition,” most recently has held that man-
damus standards apply. In re Antrobus, 519 F.3d 1123, 1127 (10th Cir. 2008)
(per curiam) (on petition for rehearing and rehearing en banc). We are in accord
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with the Tenth Circuit for the reasons stated in its opinion.
III.
A.
We have carefully examined the pleadings, the thorough order of the dis-
trict court, and the applicable law. We conclude that although the district court,
with the best of intentions, misapplied the law and failed to accord the victims
the rights conferred by the CVRA, the mandamus standard is not satisfied.
A writ of mandamus may issue only if (1) the petitioner has “no other ade-
quate means” to attain the desired relief; (2) the petitioner has demonstrated a
right to the issuance of a writ that is “clear and indisputable;” and (3) the issuing
court, in the exercise of its discretion, is satisfied that the writ is “appropriate
under the circumstances.” In re United States, 397 F.3d 274, 282 (5th Cir. 2005)
(quoting Cheney v. United States Dist. Court, 542 U.S. 367, 380-81 (2004)). We
need not decide whether the first two prongs are met because, for prudential rea-
sons, a writ of mandamus is not “appropriate under the circumstances.”
B.
With due respect for the district court’s diligent efforts to do justice, we
conclude that, under the specific facts and circumstances of this case, it was con-
trary to the provisions of the CVRA for the court to permit and employ the ex
parte proceedings that have taken placeSSproceedings that have no precedent,
as far as we can determine. To obtain the order, the government filed only a
brief ex parte statement, apparently with a proposed order. The fact of the ex
parte motion and order was compounded by the intentional delay of three
months before the victims were notified that the ex parte proceeding had oc-
curred.
The district court acknowledged that “[t]here are clearly rights under the
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CVRA that apply before any prosecution is underway.” BP Prods., 2008 U.S.
Dist. LEXIS 12893, at *36. Logically, this includes the CVRA’s establishment
of victims’ “reasonable right to confer with the attorney for the Government.”
18 U.S.C. § 3771(a)(5). At least in the posture of this case (and we do not specu-
late on the applicability to other situations), the government should have fash-
ioned a reasonable way to inform the victims of the likelihood of criminal charges
and to ascertain the victims’ views on the possible details of a plea bargain.
The district court’s reasons for its ex parte order do not pass muster. The
first consideration is the number of victims. The government and the district
court relied on the provision of the CVRA that states that “[i]n a case where the
court finds that the number of crime victims makes it impracticable to accord all
of the crime victims the rights described in subsection (a), the court shall fashion
a reasonable procedure to give effect to this chapter that does not unduly compli-
cate or prolong the proceedings.” 18 U.S.C. § 3771(d)(2). Here, however, where
there were fewer than two hundred victims, all of whom could be easily reached,
it is not reasonable to say that notification and inclusion were “impracticable.”
There was never a claim that notification itself would have been too cumber-
some, time-consuming, or expensive or that not all victims could be identified
and located; the government itself suggested a procedure whereby the victims
would be given prompt notice of their rights under the CVRA after the plea
agreement was signed.
The real rub for the government and the district court was that, as the
district judge who handled the ex parte proceeding as a miscellaneous matter
reasoned, “‘[d]ue to extensive media coverage of the . . . explosion . . ., any public
notification of a potential criminal disposition resulting from the government’s
investigation . . . would prejudice BP . . . and could impair the plea negotiation
process and may prejudice the case in the event that no plea is reached.’” BP
Prods., 2008 U.S. Dist. LEXIS 12893, at *6-*7. In making that observation, the
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court missed the purpose of the CVRA’s right to confer. In passing the Act, Con-
gress made the policy decisionSSwhich we are bound to enforceSSthat the victims
have a right to inform the plea negotiation process by conferring with prosecu-
tors before a plea agreement is reached. That is not an infringement, as the dis-
trict court believed, on the government’s independent prosecutorial discretion,
see id. at *37-*38; instead, it is only a requirement that the government confer
in some reasonable way with the victims before ultimately exercising its broad
discretion.
It is true that communication between the victims and the government
could, in the district court’s words, “impair the plea negotiation process,” id. at
*7, if, by using the word “impair,” the court meant that the views of the victims
might possibly influence or affect the result of that process. It is also true (and
we cannot know whether the court considered) that resourceful input from vic-
tims and their attorneys could facilitate the reaching of an agreement. The point
is that it does not matter: The Act gives the right to confer. The number of vic-
tims here did not render notice to, or conferring with, the victims to be impractic-
able, so the victims should have been notified of the ongoing plea discussions and
should have been allowed to communicate meaningfully with the government,
personally or through counsel, before a deal was struck.
C.
As announced above, we decline to issue a writ of mandamus in this spe-
cific situation, because a writ is not “appropriate under the circumstances.” In
re United States, 397 F.3d at 282. The unfortunate fact is that the plea agree-
ment was reached without the victims’ being able to participate by conferring in
advance. On the other hand, as we have explained, the victims were notifiedSS
albeit much too late in the processSSand were allowed substantial and meaning-
ful participation at the February 4 hearing. As the district court recounted,
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No. 08-20125
the court heard from all those present who wanted to speak, wheth-
er represented by counsel or not and whether they had previously
indicated an intent to appear or not. Ten individuals spoke in open
court. The lawyers representing the victims presented arguments
on the asserted grounds for asking the court to reject the proposed
plea agreement . . . .
At the conclusion of the . . . hearing, the victims’ counsel asked
for, and were granted, an opportunity to submit additional briefing
focused on specific legal issues . . . . The court also granted the vic-
tims’ request to delay filing their brief until the transcript was pre-
pared and allowed the government and BP . . . to file responsive
briefing.
BP Prods., 2008 U.S. Dist. LEXIS 12893, at *13-*16 (footnote omitted).
The district court, therefore, has the benefit of the views of the victims who
chose to participate at the hearing or by their various filings. The victims do
have reason to believe that their impact on the eventual sentence is substantial-
ly less where, as here, their input is received after the parties have reached a
tentative deal. As we have explained, that is why we conclude that these victims
should have been heard at an earlier stage. We are confident, however, that the
conscientious district court will fully consider the victims’ objections and con-
cerns in deciding whether the plea agreement should be accepted.
The decision whether to grant mandamus is largely prudential. We con-
clude that the better course is to deny relief, confident that the district court will
take heed that the victims have not been accorded their full rights under the
CVRA and will carefully consider their objections and briefs as this matter pro-
ceeds.
The petition for writ of mandamus, to the extent that it has not already
been granted in part, is DENIED.
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