FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: IOURI MIKHEL, 

UNITED STATES OF AMERICA,

Petitioner,

No. 06-73376

v.

D.C. No. UNITED STATES DISTRICT  CR-02-00220-DT COURT FOR THE CENTRAL

DISTRICT OF CALIFORNIA, OPINION AND

Respondent, ORDER

IOURI MIKHEL; JURLIUS KADAMOVAS;

PETRO KRYLOV; NATALYA

SOLOVYEVA,

Real Parties in Interest. 

Petition for Writ of Mandamus to the United States

District Court for the Central District of California

Dickran M. Tevrizian, District Judge, Presiding

Filed July 7, 2006

Before: Michael Daly Hawkins, Sidney R. Thomas, and

Barry G. Silverman, Circuit Judges.

Per Curiam Opinion

7809
COUNSEL

Andrea L. Russi, Assistant United States Attorney, Los Angeles, California, for petitioner United States.

Dale Michael Rubin, San Marino, California, and Richard M.

Callahan, Jr., Pasadena, California, for real party in interest

Iouri Mikhel. 

Richard P. Lasting, Santa Monica, California, and Sonia E.

Chahin, La Canada, California, for real party in interest Jurlius Kadamovas.

George W. Buehler, Los Angeles, California, and David R.

Evans, Pasadena, California, for real party in interest Petro

Krylov.

Terry J. Amdur, Pasadena, California, and Michael M. Crain,

Santa Monica, California, for real party in interest Natalya

Solovyevae. 

OPINION

PER CURIAM: 

The United States petitions for a writ a mandamus ordering

the district court to permit certain crime victims to observe in

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its entirety the murder trial in which they will testify, pursuant

to the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C.

§ 3771. For the reasons explained below, we grant the United

States’ petition in part. 

Defendants are charged, in pertinent part, with kidnaping

for ransom and then murdering five people who lived in the

Los Angeles area. On May 16, 2006, the United States filed

an unopposed motion in limine to permit the family members

of the murder victims — including those who were to testify

— to witness the defendants’ trial in its entirety. The district

court denied the motion and held that 

During the guilt or penalty phase of the trial any victim or relative of victim may observe the trial. Now,

if that person is going to testify in the guilt phase of

the trial, that witness will be excluded until called as

a witness. After testifying, that witness may remain.

During the penalty phase, the same procedure will be

followed. 

The court explained that its ruling served to prevent collusive

witness testimony and to ensure proper courtroom decorum.

The United States petitioned this court for a writ of mandamus.1

[1] In recognition of the substantial deference afforded trial

courts in these matters, our rules have traditionally provided

that non-party witnesses cannot listen to the trial testimony of

other witnesses. FED. R. EVID. 615. Rule 615, however, recognizes an exception for “a person authorized by statute to be

present.” Id. And, it turns out, Congress created just such an

exception for crime victims when it enacted the CVRA and

gave crime victims “[t]he right not to be excluded from any

1Although the United States is clearly not the “victim” in this case, it

is proper that the government bring this petition because § 3771 provides

that “the attorney for the Government may assert the rights described in

subsection (a).” 18 U.S.C. § 3771(d)(1). 

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. . . public court proceeding.” 18 U.S.C. § 3771(a)(3).2

 A

crime victim, however, does not have an absolute right to witness a trial at the expense of the defendant’s rights. A district

court may exclude a victim-witness from the courtroom if the

court finds by “clear and convincing evidence . . . that testimony by the victim would be materially altered if the victim

heard other testimony at that proceeding.” Id. That said, even

where a victim-witness may be properly excluded pursuant to

§ 3771(a)(3), “the court shall make every effort to permit the

fullest attendance possible by the victim and shall consider

reasonable alternatives to the exclusion of the victim from the

criminal proceeding.” 18 U.S.C. § 3771(b). 

In this case, the district court excluded the victim-witnesses

without determining whether their testimony would be “materially altered” were they allowed to witness the entire trial.

Nor does it appear that the district court considered whether

there were “reasonable alternatives” that would enable the

victim-witness to attend the trial pursuant to § 3771(b). 

[2] While the district court’s summary exclusion of the

victim-witnesses may have been proper under Rule 615 prior

to the enactment of the CRVA, see generally United States v.

West, 607 F.2d 300 (9th Cir. 1979), the CVRA abrogated

Rule 615, at least with respect to crime victims. A mere possibility that a victim-witness may alter his or her testimony as

a result of hearing others testify is therefore insufficient to

justify excluding him or her from trial.3 Rather, a district court

2The definition of a “victim” under the CVRA is not limited to the person against whom a crime was actually perpetrated. Rather, the term “victim” includes any “person directly and proximately harmed as a result of

the commission of a Federal offense or an offense in the District of

Columbia.” 18 U.S.C. § 3771(e). When the victim is deceased, “the legal

guardians of the crime victim or the representatives of the crime victim’s

estate, family members, or any other persons appointed as suitable by the

court, may assume the crime victim’s rights.” Id. Thus, the family members of the murder victims in this case are themselves victims for purposes

of § 3771. 

3Because there is always a possibility that one witness will alter his testimony based on the testimony of another, were this the standard, a district

IN RE MIKHEL 7813
must find by clear and convincing evidence that it is highly

likely, not merely possible, that the victim-witness will alter

his or her testimony. See United States v. Johnson, 362 F.

Supp. 2d 1043, 1056 (N.D. Iowa 2006) (permitting victimwitnesses to testify when “each of these witnesses appears

likely to testify during the ‘merits phase’ only as to discrete

factual events surrounding the disappearance of the murder

victims and to identify certain clothing and other items recovered during various searches, which are not matters susceptible to ‘material alteration’ from hearing the testimony of other

witnesses”).4

[3] Thus, we grant the United States’ petition in part and

instruct the district court to consider whether clear and convincing evidence proves that the victim-witnesses’ testimony

will be “materially altered” if they are allowed to attend the

trial in its entirety. We decline to order the district court to

allow the courtroom presence of the victim-witnesses, or to

provide any other specific instructions. Rather, we simply

remand the issue for reconsideration by the district court in

light of this opinion and the requirements of CVRA. We do

not reach the merits of any other issue. 

PETITION GRANTED IN PART; REMANDED.

court could without exception exclude crime victims, and Congress’s

intent to abrogate Rule 615 with respect to crime victims would be rendered meaningless. 

4The government argues that the testimony of the victim-witnesses it

intends to call will be analogous to the testimony given by the victimwitnesses in Johnson. Because the district court did not consider the

victim-witnesses’ intended testimony and there is no evidence of the contents of that testimony in the record before us, we express no opinion as

to the merits of the government’s argument. 

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