United States v. Guerrero

• Decision Date: 31 August 2012
• Docket Number: No. 11–10577.,11–10577.
• Citation: 693 F.3d 990
• Parties: UNITED STATES of America, Plaintiff–Appellee, Joseph Cabrera Sablan, Appellee–Intervenor, v. James Ninete Leon GUERRERO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

693 F.3d 990

12 Cal. Daily Op. Serv. 10,171

2012 Daily Journal D.A.R. 12,404

UNITED STATES of America, Plaintiff–Appellee,Joseph Cabrera Sablan, Appellee–Intervenor,

v.James Ninete Leon GUERRERO, Defendant–Appellant.

No. 11–10577.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 16, 2012.

Filed Aug. 31, 2012.

Iris Roe Lee and Richard Glenn Novak, Law Offices of Richard G. Novak, Encino, CA, for the appellant.

Tivon Schardl, Federal Public Defender's Office, Sacramento, CA, for the appellee-intervenor.

Dawrence Wayne Rice, Jr. and Elana Landau, Office of the United States Attorney, Fresno, CA, and Bonnie Hannan, Department of Justice, Washington, DC, for the appellee.

Appeal from the United States District Court for the Eastern District of California, Philip M. Pro, District Judge, Presiding. D.C. No. 1:08–cr–00259–PMP–2.

Before: STEPHEN REINHARDT and MARY H. MURGUIA, Circuit Judges, and DAVID A. EZRA, District Judge.^*

Opinion by Judge MURGUIA; Dissent by Judge REINHARDT.

OPINION

MURGUIA, Circuit Judge:

Defendant–Appellant James Ninete Leon Guerrero and his co-defendant Jose Cabrera Sablan are charged with the murder of a United States correctional officer. The Government has filed a notice of intent to seek the death penalty. This is an interlocutory appeal of the district court's order denying Guerrero's motion to seal his pretrial competency proceedings and related filings. We conclude that we do not have jurisdiction over the appeal pursuant to either the collateral order doctrine or a petition for a writ of mandamus, and therefore dismiss.

I. Background

On August 14, 2008, Guerrero and Sablan were indicted for first-degree murder, first-degree murder of a United States correctional officer, and murder by a federal prisoner serving a life sentence, in violation of 18 U.S.C. §§ 1111(a), 1114, and 1118. The Government filed a notice of intent to seek the death penalty.

In April 2011, Guerrero lodged with the district court for under seal filing a Motion for Hearing to Determine Competency of Defendant James Ninete Leon Guerrero, pursuant to 18 U.S.C. § 4241(a). Attached to the motion are a Competency Evaluation Report and a Neuropsychological Evaluation Report, both of which were prepared by a neuropsychologist. The Government subsequently filed a motion for a psychiatric or psychological examination of Guerrero to determine his competence to stand trial, which the district court granted. A Bureau of Prisons forensic psychologist submitted a forensic evaluationof Guerrero's competence to stand trial.

Guerrero then lodged with the district court for under seal filing a Motion to Seal Competency Proceedings. Attached to the motion are six exhibits, including a 27–page “Social History Summary” of Guerrero and a 77–page memorandum chronicling defense counsels' interactions with Guerrero. Guerrero requested that the district court seal the evidentiary hearing, all exhibits received into evidence or referred to by witnesses at the hearing, any post-hearing briefs, and any detailed findings of fact issued by the district court concerning Guerrero's competency. The Government took no position in response to the motion to seal. Sablan opposed the motion.

The district court denied Guerrero's motion to seal the competency proceeding and related documents, both with respect to the general public's access and Sablan's access specifically, unsealed the Motion for Hearing to Determine Competency, and scheduled Guerrero's competency hearing.¹ This appeal followed. We permitted Sablan to file an answering brief before us. Guerrero requests that we direct the district court to conduct Guerrero's competency proceeding and file all documents related to it under seal, while preserving codefendant Sablan's access. We do not reach the merits of the district court's ruling because we dismiss for lack of jurisdiction.

II. Jurisdiction

We first must address whether we have jurisdiction to review this non-final judgment, pursuant to either the collateral order doctrine or a writ of mandamus. Guerrero and the Government assert that we do have jurisdiction, while Sablan argues we do not. The jurisdictional questions appear to be matters of first impression in this circuit, as well as the other circuit courts.

A. Collateral Order Doctrine

Generally, an appellate court may hear appeals only from a district court's final decision. 28 U.S.C. § 1291; see Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) ( “Federal appellate jurisdiction generally depends on the existence of a decision by the District Court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” (internal quotation marks omitted)). However, “the collateral order doctrine accommodates a small class of rulings, not concluding the litigation, but conclusively resolving claims of right separable from, and collateral to, rights asserted in the action.” Will v. Hallock, 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) (internal quotation marks omitted). Such decisions are “ ‘collateral to’ the merits of an action and ‘too important’ to be denied immediate review.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 603, 175 L.Ed.2d 458 (2009) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). In construing the limits of the narrow collateral order rule, the Supreme Court has recognized that “[p]ermitting piecemeal, prejudgment appeals ... undermines efficient judicial administration and encroaches upon the prerogatives of district court judges, who play a special role in managing ongoing litigation.” Id. at 605 (internal quotation marks omitted).

Three requirements must be met before we exercise collateral order review. The order must: “ ‘[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.’ ” Will, 546 U.S. at 349, 126 S.Ct. 952 (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)).

The first prong is satisfied in this case. The district court's denial of Guerrero's motion to seal conclusively determined the disputed question of whether to allow public access to Guerrero's competency proceedings and related documents. See Islamic Shura Council of S. Cal. v. Fed. Bur. of Invest., 635 F.3d 1160, 1164 (9th Cir.2011) (“The district court's decision to unseal an order conclusively determines the disputed question of whether to make the order a matter of public record.”).

The second prong, that the order resolve an important separate issue, is also established here. There is no dispute that the issue of whether the competency proceedings and associated materials are unsealed is “completely separate” from the merits of the Government's case against Guerrero. See In re Sealed Case, 237 F.3d 657, 664–65 (D.C.Cir.2001) (holding that sealing issue is “completely separate from the underlying subpoena enforcement action.”). The district court's order on the motion to seal does not affect the Government's case or Guerrero's defenses at trial. The proceedings and materials that Guerrero seeks to be sealed have been disclosed to the Government, and the district court issued a protective order providing that information obtained by the Government in relation to the competency evaluation is not admissible against Guerrero in his criminal proceeding, subject to certain exceptions.

The issue is also an “important” one. We note that motions to seal competency proceedings are very rare. We have identified only one (unpublished) district court ruling on such a motion, and no circuit court decisions. See United States v. Curran, 2006 WL 1159855 (D.Ariz. May 2, 2006) (unpublished). Nevertheless, Guerrero's interests in the confidentiality of attorney-client communications, a fair trial, and privacy are clearly important to him.

Moreover, we must also consider the alternative possibility of the district court granting Guerrero's motion to seal. Had Guerrero succeeded below, perhaps the Government would seek interlocutory review.² The public's interest in open criminal proceedings is well-established and could present an important issue on appeal. See Press–Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 104 S.Ct. 819, 78 L.Ed.2d 629 (1985) (“ Press–Enterprise I ”) (“Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.”).

The third prong of the collateral review order test is whether a decision is effectively unreviewable on appeal from a final judgment. Will, 546 U.S. at 349, 126 S.Ct. 952. An effectively unreviewable decision is one that “would imperil a substantial public interest or some particular value of a high order.” Mohawk, 130 S.Ct. at 605. We do not consider the “individualized jurisdictional inquiry” that Guerrero's case presents, but instead focus on the “entire category to which a claim belongs.” Id. In other words, we may only exercise collateral order review if all orders resolving motions to seal competency proceedings cannot “be adequately vindicated by other means.” Id. We are cautious in applying the collateral order doctrine, “because once one order is identified as collateral, all orders of that type must be considered collaterally.” C.I.R. v. JT USA, LP, 630 F.3d 1167, 1172 (9th Cir.2011) (emphasis added).

Guerrero argues that an order denying a motion to seal is effectively unreviewable on appeal because once “the cat is out of the bag,” there is no going back. Guerrero contends that because the information released can never be secret again, the sealing of competency proceedings implicates the attorney-client privilege that attaches to some of the related documents, his right to a...