Case o' The Week: Iouri Mikhel and Victim-Witness Sequestration

Victims of an (alleged) kidnaping scheme ended up in New Melones reservoir (left). The victims' family wanted to see the capital murder trial, even though they would later testify. In re: Iouri Mikhel, No. 06-73376 (9th Cir. July 7, 2006) (ord.), order available here. The Ninth explains how the Crime Victims’ Right Act figures into sequestration of victim-witnesses.

Players: Per curiam order by Hawkins, Thomas, and Silverman.

Facts: In a capital murder case, the family of the murder victims wanted to witness the entire trial. Ord. at 2. In an unopposed in limine motion the government moved to permit this. The district court denied the government’s motion. Id. The district court held that if a family member was going to testify at either the guilt or penalty phase of the trial, they would be excluded until their testimony was over. Id. The government took the ruling up in a petition for a writ of mandamus. Id. at 3.

Issue(s): What showings are necessary under the Crime Victims’ Rights Act (“CVRA”), before a district court judge can sequester victim-witnesses under Federal Rule of Evidence 615?

Held: “While the district court’s summary exclusion of the victim-witness may have been proper under Rule 615 prior to the enactment of the CVRA . . . . 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. Rather, a district court 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.” Id. at 4-5 (emphases in original) (citation omitted). “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.” Id. at 5-6.

Of Note: The Ninth does not hold that the CVRA trumps a district court’s ability to sequester witnesses. The panel emphasizes, “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 the this opinion and the requirements of CVRA. We do not reach the merits of any other issue.” Id. at 6.

How to Use: This was not a tough issue for the Ninth, and the panel got it right with its narrow holding. The order’s holding is limited to articulating the showing required to exclude victim-witnesses. Id. After the CVRA, the district court must find by a standard of “clear and convincing evidence” that the witnesses’ testimony will be “materially altered” by attended the trial before their testimony. Id. at 4. Note that in this case, the defense did not object to the victim-witnesses’ presence, and there were no constitutional objections to the CVRA. In re: Iouri Mikhel does not, therefore, stand for the proposition that exclusion of victim-witnesses is generally improper.

For Further Reading: Mikhel is allegedly a member of the Russian mafia, and is charged with kidnaping for ransom, torturing, and killing several businessmen and then dumping them into the New Melones reservoir. See article here.
To complicate matters, the defendant allegedly tried to escape from federal prison while awaiting trial. See article here. Conspirators on the outside “bought cell phones and tools, [and] a pillowcase containing a cell phone, hacksaw blades, a video camera and a small amount of marijuana was passed through a cell window.” See article here.
Hacksaw blades makes sense, and a little weed goes a long ways in jail, but what’s with the video camera? Was the escape going to be featured on reality TV?

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

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