Vince Andrich v. United States District Court for the Central District of California

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
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; No. 11-73630
RACHEL GREEN; KEITH LEWIS; D.C. No.
DARREN MEADE; GLENN PUIT;
MICHAEL ROBERTS; MARK WARNER;
 8:07-cr-00249-
CJC-1
IRA GILMER; LEE PATIN; ANTHONY
OPINION
ROBERTS; JIM ZASLAW,
Petitioners,
v.
UNITED STATES DISTRICT
COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA, SANTA
ANA,
Respondent,
KIRK A. MCMAHAN and UNITED
STATES OF AMERICA,
Real Parties in Interest.

20903
20904 IN RE ANDRICH
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: Diarmuid F. O’Scannlain, Edward Leavy, and
Stephen S. Trott, Circuit Judges
Per Curiam Opinion
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
IN RE ANDRICH 20905
COUNSEL
Becky Susan Walker James, Law Offices of Becky Walker
James, Los Angeles, California, for the petitioners.
Jennifer L. Waier, Office of the U.S. Attorney, Santa Ana,
California, for Real Party in Interest United States.
David William Wiechert, Law Office of David W. Wiechert,
San Clemente, California, for Real Party in Interest Kirk A.
McMahan.
OPINION
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
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).
20906 IN RE ANDRICH
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 peti-
tioners’ proffered evidence. Petitioners assert that this court
should issue a writ under the CVRA or under this court’s tra-
ditional mandamus authority under 28 U.S.C. § 1651. Both
real parties in interest, defendant Kirk McMahan and the
United States, oppose the petition.
[1] When reviewing a petition for a writ of mandamus, the
court is generally guided by the five factors outlined in Bau-
man v. United States Dist. Court, 557 F.2d 650, 654-55 (9th
Cir. 1977): (1) the party seeking the writ has no other ade-
quate 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).
[2] Previous decisions by this court have focused on the
third factor when reviewing CVRA mandamus petitions. See
Kenna v. United States District Court, 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.
IN RE ANDRICH 20907
Cir. 2011) (traditional standard of review applies to manda-
mus petitions brought under CVRA).
[3] We have reviewed the record and we conclude petition-
ers have not met their burden. The trial judge did not clearly
err as a matter of law, nor did he abuse his discretion. Accord-
ingly, we deny the petition for writ of mandamus under either
the CVRA or our traditional mandamus authority.
DENIED.