Case: 12-40954      Document: 00511977416      Page: 1    Date Filed: 09/06/2012




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT



                                   No. 12-40954


In re: JEWELL ALLEN; ROSALINDA ARMADILLO; MAVIS BRANCH;
FELICIANO CANTU; DAVE GALLOWAY; JOHN GARCIA; JULIAN
GARCIA; ROBE GARZA; DIANA LINAN; THELMA MORGAN; JOEL
MUMPHORD; JEAN SALONE; JAMES SHACK; BETTY WHITESIDE,

                                              Petitioners



                    Petition for a Writ of Mandamus to the
                   Southern District of Texas, Corpus Christi


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:
      Petitioners seek a writ of mandamus directing the district court to give
them “crime victim” status under the Crime Victims’ Rights Act (“CVRA”). 18
U.S.C. § 3771. The CVRA confers crime victim status on “person[s] directly and
proximately harmed as a result of the commission of a Federal offense.” 

In April 2008, upon the Government’s motion, the district court held
a hearing to determine whether the Petitioners were “crime victims.” Some, but
not all, of the Petitioners testified at that hearing. After the hearing, the district
court ruled that Petitioners were not “crime victims” because the Government
had not sufficiently shown that they were “harmed.” The district court denied
the Government’s motion to reconsider.
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                                      No. 12-40954

       Four years later, but still weeks before the district court was set to
sentence the defendant in the underlying criminal case, Petitioners retained pro
bono counsel who again asked the district court to give the Petitioners “crime
victim” status. Without addressing the arguments raised in that motion, the
district court denied Petitioners’ request as, essentially, untimely. The district
court stated, without citation to authority: “[W]hile the [Petitioners] are correct
that they have the right to file their own motion to be declared victims under the
CVRA, they should have done so four years ago, not two months before
sentencing is set to occur in this matter.”
       The CVRA does not contain a time limit within which putative crime
victims must seek relief in the district court. The only time limit discussed in
the statute applies when a victim seeks “to re-open a plea or sentence.” 

Because Petitioners are not seeking to reopen a plea or sentence,
that provision is inapplicable.1
       “A writ of mandamus may issue only if (1) the petitioner has no other
adequate 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 Dean, 

, 394 (5th Cir. 2008). As
recognized by the court below, Petitioners have a right to file their own motion
to be declared crime victims under the CVRA, and it is clear and indisputable
that no time bar prevented the district court from considering the novel
arguments raised by pro bono counsel in its motion below.                    Here, where
Petitioners raise arguments not previously raised by the Government during the



       1
         We do not reach the question whether a more inconvenient delay than the one shown
here (a few weeks before sentencing) could trigger the doctrine of laches or some other legal
principle that might bar a request for crime victim status. We rule here only in light of the
history of these specific proceedings.

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                                 No. 12-40954

time the Government represented their interests, and where Petitioners have
been able to retain counsel, issuance of a writ is appropriate.
      Accordingly, we direct the district court to consider the arguments raised
by pro bono counsel below in Petitioners’ motion to be afforded crime victim
status under the CVRA.
      IT IS ORDERED that the petition for writ of mandamus pursuant to the
Crime Victims’ Act is GRANTED to the extent that the district court must hear
all new victim status arguments being submitted pre-sentencing by pro bono
counsel.
      IT IS FURTHER ORDERED that Petitioners’ motion to waive their right
to a decision in this matter within 72 hours is DENIED as MOOT.




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