US v. Under Seal
PUBLISHED AUTHORED OPINION filed. Originating case numbers: 1:14-cr-00349-GBL-1; 1:14-cr-00306-GBL-1. . [15-4539, 15-4569]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
Party-in-Interest – Appellant,
PEDRO ANTHONY ROMERO CRUZ, a/k/a Payaso; JOSE LOPEZ TORRES,
a/k/a Peluca, a/k/a Medio Polvo, a/k/a Peluquin, a/k/a Jose Alejandro Donez, a/k/a
Lopez Manuel Torres; JAIME ROSALES VILLEGAS, a/k/a Demente, a/k/a Lil
Demente; ALVIN GAITAN BENITEZ, a/k/a Pesadilla, a/k/a Lil Pesadilla, a/k/a
Lil Tuner, a/k/a Tooner, a/k/a Lil Tunnel; CHRISTIAN LEMUS CERNA, a/k/a
Leopardo, a/k/a Bago, a/k/a Vago, a/k/a Gatito, a/k/a Christian Josue Lemus
Alfaro; OMAR DEJESUS CASTILLO, a/k/a Lil Payaso, a/k/a Lil Slow;
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DOUGLAS DURAN CERRITOS, a/k/a Lil Poison, a/k/a Guason, a/k/a Lunche,
a/k/a Guadalupe; MANUEL ERNESTO PAIZ GUEVARA, a/k/a Solitario, a/k/a
Colita; JOSE DEL CID, a/k/a Duende; JESUS ALEJANDRO CHAVEZ, a/k/a
Chuy; JUAN CARLOS MARQUEZ AYALA, a/k/a Skinny; ARAELY
SANTIAGO VILLANUEVA, a/k/a Slow, a/k/a Lil Slow, a/k/a Spider; GENARO
SEN GARCIA, a/k/a Gatuso,
Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Gerald Bruce Lee, District Judge. (1:14-cr-00349-GBL-1; 1:14-cr-00306GBL-1)
Argued: December 7, 2016
Decided: April 5, 2017
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Affirmed in part, dismissed in part, vacated in part, and remanded with instructions by
published opinion. Judge Floyd wrote the majority opinion, in which Judge Wilkinson
joined. Judge Motz wrote a separate opinion concurring in part and concurring in the
ARGUED: Carmen D. Hernandez, Highland, Maryland, for Appellant. Christopher John
Catizone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Vernida R. Chaney, CHANEY LAW FIRM PLLC, Fairfax,
Virginia, for Appellant. Dana J. Boente, United States Attorney, Heather Alpino, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
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FLOYD, Circuit Judge:
Appellant, a juvenile during all relevant events in this case, appeals two sets of
decisions relating to his juvenile prosecution. 1
First, Appellant appeals the district
court’s decision to grant the federal government’s motion to dismiss the information filed
against him in a juvenile delinquency proceeding without prejudice, and its decision to
deny Appellant’s motion to dismiss the information with prejudice. Second, Appellant
appeals the district court’s decision to authorize the federal government to disclose two
confidential documents and Appellant’s identity to third-parties, contending that the
disclosed information should have been kept private.
For the reasons that follow, we dismiss as interlocutory the appeal over the
dismissal of the information without prejudice and the denial of Appellant’s motion for
dismissal with prejudice.
However, we affirm the district court’s authorization of
disclosure of the aforementioned confidential documents. Finally, because we believe
that the controversy surrounding the disclosure of Appellant’s identity is moot on appeal,
we vacate the district court’s decision to authorize disclosure of that information.
On October 7, 2013, Nelson Omar Quintanilla Trujillo—a member of the MS-13
gang—was murdered in Fairfax County, Virginia, by several of his MS-13 associates.
Federal law prohibits the public release of a juvenile’s name in connection with
these proceedings. 18 U.S.C. § 5038(e). Thus, we use the designation “Appellant”
throughout this opinion.
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Subsequently, a grand jury in the Eastern District of Virginia returned an indictment
against multiple adult MS-13 members (the “Adult Defendants”) for taking part in
The prosecution of some of these individuals (the “Adult
Prosecution”) remains ongoing. The Adult Prosecution was assigned docket number
1:14-CR-306, and was assigned to the Honorable Gerald Bruce Lee.
Appellant was an MS-13 gang member who took part in Trujillo’s murder, but
was only sixteen years old at the time the murder took place. On October 16, 2014, the
federal government filed under seal a juvenile delinquency information against Appellant
in connection with his role in Trujillo’s murder (the “Juvenile Prosecution”).
accordance with the jurisdictional requirements of the Juvenile Justice and Delinquency
Prevention Act of 1974 (the “JJDPA”), Pub. L. No. 93-415, 88 Stat. 1109, codified as
amended in relevant part at 18 U.S.C. § 5032, the information was accompanied by the
federal government’s certification that Appellant’s case was a felony “crime of violence”
implicating a “substantial Federal interest,” and that Virginia prosecutors had declined to
exercise their jurisdiction over Appellant. J.A. 104–05.
Appellant was detained the same day that the information against him was filed.
The Juvenile Prosecution was assigned its own docket number, 1:14-CR-349, and was
also assigned to the Honorable Gerald Bruce Lee.
On October 16, 2014, the federal government filed a motion pursuant to § 5032 to
transfer Appellant for prosecution as an adult for murder in aid of racketeering, in
violation of 18 U.S.C. § 1959(a)(1). To decide whether to transfer the case, the district
court held a hearing that addressed the six statutory factors relevant to the transfer
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decision under § 5032. On April 21, 2015, the district court issued an order denying
transfer. On April 24, 2015, the federal government filed an interlocutory appeal of the
district court’s order denying transfer.
On July 14, 2015, Appellant’s attorney attended a meeting with federal and state
During the meeting, the federal prosecutors indicated that the federal
government had decided to defer to the Fairfax County Commonwealth Attorney’s Office
in the prosecution of Appellant.
Accordingly, the federal prosecutors informed
Appellant’s counsel that they intended to dismiss the federal government’s interlocutory
appeal and then move to voluntarily dismiss Appellant’s information in the district court.
During the meeting, state prosecutors indicated that they would proceed against
Appellant in state court following the completion of the federal government’s Adult
State prosecutors also presented plea offers to Appellant’s attorney
requiring Appellant to plead to an adult murder charge, although those offers were never
On July 16, 2015, the federal government moved to voluntarily dismiss the
interlocutory appeal of the denial of transfer. On August 11, 2015, this Court granted the
federal government’s motion to dismiss.
On August 17, 2015, the federal government moved to voluntarily dismiss
Appellant’s information pursuant to Rule 48(a) of the Federal Rules of Criminal
Procedure, which provides that “[t]he government may, with leave of court, dismiss an
indictment, information, or complaint.” On August 18, 2015, the district court responded
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by dismissing the information without prejudice. Later that day, Appellant filed a request
for a hearing regarding dismissal, which the district court immediately denied.
On September 1, 2015, Appellant filed a motion entitled “Defendant’s Motion for
Reconsideration or in the Alternative Objections to the United States’ Motion to Dismiss
Pursuant to Federal Rule of Criminal Procedure 48(a) and the Court’s Order Granting the
Dismissal.” J.A. 704. In that motion, Appellant objected to dismissal of the information
without prejudice, on the grounds that such a dismissal was part of an improper effort by
the federal government to circumvent the JJDPA by using state prosecutors as a proxy to
pursue adult charges. Additionally, Appellant sought dismissal of the information with
prejudice, citing a violation of his “right to a speedy trial pursuant to 18 U.S.C. [§] 5036.”
J.A. 710. The district court denied Appellant’s motion on September 3, 2015.
Upon dismissal of the information, Appellant was released to the custody of
immigration authorities. Appellant has since been deported to his native country, El
Salvador; however, he remains subject to prosecution in the United States in connection
with his role in Trujillo’s murder.
The federal government requested authorization from the district court to disclose
three pieces of information to the attorneys for the Adult Defendants (the “Adult Defense
Attorneys”). Although these items were subject to confidentiality protections under 18
U.S.C. § 5038, the federal government nonetheless requested disclosure authorization in
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order to fulfill what it perceived to be potential Brady 2 obligations. The items at issue
1) The portion of Appellant’s testimony from the transfer hearing (the “Transfer
Transcript”) related to gang activity in the United States and the murder of
The original transcript was approximately sixty-five pages long;
however, to avoid disclosing personal or extraneous information, the federal
government only sought disclosure of approximately twenty-four pages of the
2) An FBI investigative report (the “Investigative Report”) containing statements
about Trujillo’s murder made by Appellant in an interview with the FBI. The
report was approximately five pages long, with approximately one page of
3) Appellant’s identity (which had been redacted from the transcript and report).
The federal government began by requesting—in the case number for the Adult
Prosecution—authorization to disclose the Transfer Transcript and the Investigative
Report to the Adult Defense Attorneys. The federal government also filed—in the case
number for the Juvenile Prosecution—a notice of a request for authorization to disclose
the same documents to the Adult Defense Attorneys.
In that notice, the federal
government identified the Transfer Transcript and the Investigative Report as “potentially
See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression by
the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment”).
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Brady material.” J.A. 698. The federal government acknowledged that the MS-13 gang
had issued a “death threat” against Appellant following his abandonment of the gang.
In response, the federal government proposed seven protective measures
designed to prevent any unauthorized disclosure or dissemination.
The notice added that the Transfer Transcript and the Investigative Report needed
to be disclosed immediately, because the documents would help the Adult Defense
Attorneys determine whether they should obtain a material witness warrant for Appellant,
who was at risk of being deported at the time. The federal government noted that if
Appellant invoked his Fifth Amendment privilege against self-incrimination, it would
consider asking the district court to excuse it from disclosing the Transfer Transcript and
the Investigative Report, because it refused to offer Appellant testimonial immunity and
“a material witness warrant would be futile” against a silent Appellant. J.A. 699.
In the Juvenile Prosecution case number, Appellant filed an opposition to the
federal government’s request to disclose the Transfer Transcript and the Investigative
Report, arguing that the request was improper, overbroad, and detrimental to Appellant’s
safety. However, Appellant’s opposition papers failed to indicate that he intended to
invoke his privilege against self-incrimination.
On September 2, 2015, the district court issued a pair of protective orders in the
Adult Prosecution case number—one authorizing the disclosure of the Transfer
Transcript, and the other authorizing the disclosure of the Investigative Report. Both
protective orders contained the federal government’s requested protective measures. One
such protective measure was the following provision: “The [Adult Defense] [A]ttorneys
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may discuss the substance of the [Transfer Transcript and the Investigative Report] with
their client, but they shall not provide the client with direct access to the document[s]
. . . .” J.A. 725, 727. On September 3, 2015, the district court approved the federal
government’s disclosure request, in an order issued in the Juvenile Prosecution case
Subsequently, the Adult Defense Attorneys expressed their desire to apply for a
material witness warrant for Appellant. The federal government responded by moving in
the Adult Prosecution case number for authorization to disclose Appellant’s identity to
the Adult Defense Attorneys, so as to allow them to apply for a warrant.
The federal government also filed in the Juvenile Prosecution case number a
notice of a request for authorization to disclose Appellant’s identity to the Adult Defense
Attorneys. Again, this notice was accompanied by a request for protective measures.
Appellant filed a motion seeking to prohibit the disclosure of his identity.
Appellant also filed a separate document, containing a hearing request and Appellant’s
assertion of his privilege against self-incrimination.
Both filings were made in the
Juvenile Prosecution case number.
The district court held a hearing in the Juvenile Prosecution case number on
September 9, 2015, to help it decide whether to disclose Appellant’s identity. There, the
district court queried the federal government about its security measures. Additionally,
Appellant’s attorney explained that Appellant intended to invoke his Fifth Amendment
privilege, and the district court acknowledged that it “believe[d] he w[ould].” J.A. 774.
During the hearing, Appellant’s attorney also requested that, if the district court was
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inclined to authorize disclosure, it at least stay any disclosure to give Appellant an
opportunity for appeal.
On September 9, 2015, the district court in the Adult Prosecution case number
issued a protective order authorizing disclosure of Appellant’s identity exclusively to the
Adult Defense Attorneys to facilitate their application for a material witness warrant.
This protective order contained the government’s requested protective measures. One
such measure was a provision ordering the Adult Defense Attorneys to refrain from
disclosing Appellant’s identity to their clients until (i) the court scheduled a material
witness deposition with Appellant; (ii) 30 days before trial if Appellant remained
detained by the district court; or (iii) the attorneys were “otherwise ordered by the court.”
J.A. 782–83. On September 10, 2015, the district court in the Juvenile Prosecution case
number issued an order denying Appellant’s motion to prohibit disclosure of his identity.
The district court declined to stay any disclosure.
On September 1, 2015, before the district court had authorized any disclosures,
Appellant noted an appeal of the dismissal of the information without prejudice. On
September 16, 2015, once the various disclosures had been authorized, Appellant noted a
separate appeal of the protective orders that were issued in the Adult Prosecution case
number (collectively, the “Adult Protective Orders”). On September 17, 2015, Appellant
noted a third appeal of the disclosure-related orders that were issued in the Juvenile
Prosecution case number (collectively, the “Juvenile Disclosure Orders”), as well as the
order denying Appellant’s request for dismissal with prejudice in lieu of dismissal
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In his opening brief, Appellant summarily asserts that this Court has subjectmatter jurisdiction in this case pursuant to 28 U.S.C. § 1291. The problem with this
assertion—which was not rebutted by the federal government—is that it fails to address
the fact that Appellant’s appeals all take place in the absence of any final judgment.
Because “[p]iecemeal or interlocutory appeals are disfavored,” United States v.
Lawrence, 201 F.3d 536, 537 (4th Cir. 2000), and because “we are obliged to satisfy
ourselves of subject-matter jurisdiction, even where the parties concede it,” United States
v. Urutyan, 564 F.3d 679, 684 (4th Cir. 2009), we begin our analysis by addressing
whether we have subject-matter jurisdiction in this case.
At the outset, we recognize that “Section 1291 of the Judicial Code confers on
federal courts of appeals jurisdiction to review ‘final decisions of the district courts.’”
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009) (quoting 28 U.S.C. § 1291).
“Although ‘final decisions’ typically are ones that trigger the entry of judgment, they also
include a small set of prejudgment orders that are ‘collateral to’ the merits of an action
and ‘too important’ to be denied immediate review.” Id. (quoting Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949)).
For the reasons that follow, we hold that this Court lacks jurisdiction over
Appellant’s appeal of the dismissal without prejudice of the information filed in his
juvenile delinquency proceeding.
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The dismissal without prejudice of charges is not a final decision in the traditional
sense. Generally, a final decision “ends the litigation on the merits and leaves nothing
more for the court to do but execute the judgment.” Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 867 (1994) (quoting Catlin v. United States, 324 U.S. 229, 233
We have previously acknowledged that in an adult “criminal case, final
judgment means conviction and sentence.” United States v. Lanham, 631 F.2d 356, 357
(4th Cir. 1980) (per curiam). “A dismissal without prejudice is clearly neither, and the
order being interlocutory, . . . the appropriate time to review a dismissal [without
prejudice] is after reindictment and conviction.” Id.; see also United States v. Day, 806
F.2d 1240, 1242 (5th Cir. 1986) (“It is well settled that an order dismissing a criminal
indictment without prejudice is not a ‘final judgment’ under section 1291.” (collecting
The same reasoning applies in the juvenile context. Although an adjudication of
delinquency and a sentence end a juvenile prosecution, a dismissal without prejudice of
an information does not. Thus, under traditional § 1291 principles, appellate review of
the dismissal is improper unless and until an adjudication of delinquency and sentencing
Furthermore, the dismissal without prejudice of charges is not an appealable
collateral order. An appealable collateral order must be “effectively unreviewable on
appeal from a final judgment,” Will v. Hallock, 546 U.S. 345, 349 (2006), which occurs
only when “a sufficiently important interest would be imperiled by our refusal to provide
an immediate appellate review,” Cobra Nat. Res., LLC v. Fed. Mine Safety & Health
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Review Comm’n, 742 F.3d 82, 86 (4th Cir. 2014). The Supreme Court and this Court
have long recognized, however, that a defendant whose indictment was dismissed
without prejudice “has not been injured by [the prosecution’s] termination in his [or her]
favor.” Lanham, 631 F.2d at 358 (quoting Parr v. United States, 351 U.S. 513, 517
(1956)) (first modification in original). Indeed, “[i]f [a defendant] is not reindicted, [he
or she] will never have suffered injury as a result of the dismissal.” United States v.
Moller-Butcher, 723 F.2d 189, 191 (1st Cir. 1983). “If, on the other hand, [a defendant]
is reindicted, then the dismissal is an intermediate step in the prosecution which may be
reviewed only after final judgment in the case.” Id. (citing Parr, 351 U.S. at 518–19).
Again, this reasoning is equally applicable in the juvenile context. Appellant
generally cannot be “injured” by the dismissal without prejudice of the information
unless and until he is adjudicated delinquent and sentenced. 3
He therefore cannot
establish that a sufficiently important interest would be imperiled by our refusal to
immediately review this dismissal.
This observation is subject to at least one exception. If the federal government
moves for dismissal of a juvenile delinquency information against a defendant, and then
brings an adult indictment against the defendant after he or she becomes an adult that is
premised on the same misconduct that the information was premised on, the federal
government violates 18 U.S.C. § 5032, and so the defendant is injured if he or she moves
for dismissal of the indictment on that ground but sees that motion denied. See United
States v. Smith, 851 F.2d 706, 708 (4th Cir. 1988) (allowing an interlocutory appeal under
such circumstances). Appellant asserts that he likewise has a right not be subject to a
state adult prosecution following the dismissal of his federal juvenile delinquency
information. Assuming that this assertion is true (and we doubt it is), Appellant must
wait until he is subject to a state adult prosecution, brings a motion to dismiss premised
on that alleged right, and sees that motion denied, before he can claim injury to that
alleged right. The dismissal without prejudice of a federal juvenile delinquency
information, standing alone, does not injure that alleged right.
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Because the dismissal without prejudice of Appellant’s information was neither a
traditional final order, nor an appealable collateral order, we conclude that we lack
jurisdiction under § 1291 to review this dismissal.
We also hold that this Court lacks jurisdiction over Appellant’s appeal of the
denial of his motion to have the information dismissed with prejudice on the basis of an
alleged violation of his speedy trial rights under 18 U.S.C. § 5036.
Appellant’s appeal of the above-described denial is clearly an appeal from an
interlocutory, rather than a final, order. The denial of Appellant’s § 5036 claim does not
end Appellant’s juvenile prosecution on the merits. See Digital Equip., 511 U.S. at 867.
This denial is, moreover, not an appealable collateral order. In United States v.
Buchanan, we held that in an adult criminal proceeding, an order denying a motion to
dismiss premised on an alleged violation of the Speedy Trial Act, 18 U.S.C. § 3161, is
not an appealable collateral order. 946 F.2d 325, 327 (4th Cir. 1991). We explained that
such an order would “not be ‘effectively unreviewable’ on appeal from a final judgment,”
because “the guarantee of a speedy trial does not embody a right ‘not to be tried’” that
would be undermined by a full prosecution. Id. (quoting United States v. MacDonald,
435 U.S. 850, 861 (1978)); cf. Abney v. United States, 431 U.S. 651, 658–61 (1977)
(approving interlocutory appeal of the denial of dismissal on double jeopardy grounds,
because a defendant’s right not to be tried twice would be forever lost absent
interlocutory appeal). “Rather, ‘[i]t is the delay and not the trial that is the target of the
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[Speedy Trial] Act’ and proceeding to a final judgment ‘does not cause or compound the
harm at which the statute is aimed.’” Buchanan, 946 F.2d at 327 (quoting United States
v. Mehrmanesh, 652 F.2d 766, 769–70 (9th Cir. 1980)) (first modification in original).
We believe that Buchanan compels the conclusion that a denial of a motion made
pursuant to § 5036 is not subject to interlocutory appeal. The Ninth Circuit has already
reached this conclusion, on the basis of rather convincing reasoning:
As in the sixth amendment and Speedy Trial Act context, the right that is
being asserted [by a defendant invoking § 5036] is the right to a speedy
trial: “It is the delay and not the trial that is the target of the” juvenile
speedy trial provision. [Mehrmanesh, 652 F.2d] at 769. Because it is the
delay that is the focus of a juvenile’s speedy trial claim, allowing a juvenile
to be tried prior to resolution of the speedy trial claim will not “cause or
compound the harm” at which the juvenile speedy trial provision is aimed.
Id. at 769–70.
United States v. Brandon P., 387 F.3d 969, 973 (9th Cir. 2004). We adopt the Ninth
Circuit’s reasoning here, and thus decline interlocutory review of Appellant’s § 5036based appeal. 4
Because the federal government was denied the ability to transfer Appellant to an
adult prosecution in this case, we need not address the question of whether the denial of a
§ 5036 motion can become immediately appealable if it is made by a juvenile defendant
transferred to an adult prosecution. We therefore decline to rule on this question, which
we acknowledge has divided our sister circuits. Compare United States v. A.R., 203 F.3d
955, 962–63 (6th Cir. 2000) (holding that the denial of a § 5036 motion is immediately
appealable if the juvenile defendant makes the appeal after being transferred to an adult
prosecution, on the grounds that if a juvenile defendant “ha[s] to wait until after trial and
a final judgment to appeal the claim, the adult trial would have already sacrificed the
legal and practical benefits of being tried as a juvenile” (internal quotation marks
omitted)) and United States v. David A., 436 F.3d 1201, 1205 (10th Cir. 2006)
(expressing agreement with A.R.) with Brandon P., 387 F.3d at 972–74 (holding that a
§ 5036 denial is not immediately appealable even if the juvenile defendant has been
transferred to an adult prosecution, on the grounds (1) that “it is the delay—not the
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Because the denial of Appellant’s motion alleging a violation of his § 5036 speedy
trial rights was neither a traditional final order, nor an appealable collateral order, we
conclude that we lack jurisdiction under § 1291 to review this denial.
Finally, we hold that we do have jurisdiction pursuant to § 1291 to review orders
authorizing disclosure of JJDPA-protected juvenile records and information, at least
where the object of the orders is to ensure that criminal defendants are able to present an
Admittedly, the Juvenile Disclosure Orders and the Adult Protective Orders that
Appellant complains about are not appealable final decisions in the traditional sense.
These orders ended neither the litigation of the Juvenile Prosecution nor that of the Adult
Prosecution. See Digital Equip., 511 U.S. at 867. Nonetheless, these orders do, in our
view, belong to a class of appealable collateral orders.
Under the modern collateral order doctrine, “an appealable collateral order must
‘ conclusively determine the disputed question,  resolve an important issue
completely separate from the merits of the action, and  be effectively unreviewable on
appeal from a final judgment.’” Cobra, 742 F.3d at 86 (quoting Will, 546 U.S. at 349).
In making a collateral order determination, “our focus is not on the particular order at
treatment of the juvenile as a juvenile—that is targeted by the juvenile speedy trial
provision, and an immediate appeal is not necessary to vindicate this right,” and (2) that
the well-settled right to appeal an interlocutory transfer order already adequately protects
the right of a juvenile to be treated as such).
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issue, but rather on the ‘entire category’ of orders to which it belongs.” Id. at 87 (quoting
Digital Equip., 511 U.S. at 868).
With respect to the first requirement, the district court’s orders conclusively
determined a disputed question. “This ‘most basic element’ is sometimes presumed
satisfied so long as the district court . . . has decided the matter presented on appeal.” Id.
at 88 (quoting 15A Charles Alan Wright et al., Federal Practice and Procedure § 3911.1
(2d ed. 1992)).
The Juvenile Disclosure Orders and the Adult Protective Orders
unequivocally decided to authorize disclosure, and “there is [no] ‘plain prospect’ that the
lower could alter its own ruling.” Id. (quoting FTC v. Standard Fin. Mgmt. Corp., 830
F.2d 404, 407 (1st Cir. 1987)). Thus, the first requirement of the collateral order doctrine
Moreover, the district court’s orders are separate from the merits. The orders at
issue here were decided based on consideration of the Adult Defendants’ interest in
receiving material useful to the presentation of their defense, as well as Appellant’s
interests in confidentiality and safety. These orders do not decide the guilt or innocence
of the Adult Defendants, or the guilt or innocence of Appellant. In other words, there is
not even “a threat of substantial duplication of judicial decision making.” Id. at 89
(internal quotation marks omitted).
The second requirement of the collateral order
doctrine is therefore met.
Finally, we hold that the district court’s orders belong to a category of orders that
are “effectively unreviewable” on appeal from final judgment. Again, this requirement is
met only when “a sufficiently important interest would be imperiled by our refusal to
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provide an immediate appellate review.” Id. at 86. Our precedent confirms that a
juvenile’s confidentiality interest in records and information protected by 18 U.S.C.
§ 5038 is of sufficient importance, and the harm to it sufficiently irreparable if threatened,
to warrant immediate appellate review. See United States v. Smith, 851 F.2d 706 (4th
In Smith, the defendant filed a motion to dismiss his adult indictment—which was
premised on the same alleged misconduct that had been the subject of a dismissed
juvenile information—on the grounds that it was unlawful for him to be tried as an adult.
Id. at 707–08. The district court denied the defendant relief, and the defendant appealed.
Id. at 708. This Court treated the denial as an immediately appealable collateral order,
reasoning that “much of the sequellae of [the defendant’s] right to be tried as a juvenile,
if that claim is meritorious, would be irrevocably lost” upon postponed appellate review.
Id. The “sequellae” cited were a juvenile’s “entitle[ment] to the sealing of court records,
limitation of inquiries into records, protection from photographing and withholding of his
name and picture from the news media.” Id. (citing, inter alia, 18 U.S.C. § 5038).
Similarly, orders authorizing the disclosure of protected juvenile records and
information, if not immediately appealable, render juvenile confidentiality protections
“irrevocably lost.” These confidentiality protections, as discussed below, safeguard a
juvenile’s interest in privacy, safety, and avoiding retaliation. Orders undermining these
protections therefore implicate an important interest that would be thwarted by a refusal
by this Court to offer immediate appellate review. Because the Juvenile Disclosure
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Orders and Adult Protective Orders belong to this category of orders, we hold that the
third requirement of the collateral order doctrine is met.
In sum, we conclude that the Juvenile Disclosure Orders and the Adult Protective
Orders are within this Court’s collateral order jurisdiction.
We must next determine whether Appellant has standing to appeal the Juvenile
Disclosure Orders and the Adult Protective Orders, and if he does, whether the appeal of
those orders is moot.
Because standing and mootness address themselves to the
“justiciability” of a dispute, Lebron v. Rumsfeld, 670 F.3d 540, 561 (4th Cir. 2012), we
analyze these issues before exploring the merits of the appealed orders.
Appellant appeals two sets of rulings: the Juvenile Disclosure Orders issued in the
Juvenile Prosecution case number, and the Adult Protective Orders issued in the Adult
Prosecution case number. We hold that Appellant has standing to appeal both sets of
“As a general rule, only named parties to the case in the district court and those
permitted to intervene may appeal an adverse order or judgment.” Doe v. Public Citizen,
749 F.3d 246, 257 (4th Cir. 2014) (citing Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per
curiam)). “The reason for such a rule is obvious: because a nonparty generally is not
bound by a judgment, he [or she] ordinarily cannot be aggrieved by the judgment to the
extent necessary to permit appellate review.” Kenny v. Quigg, 820 F.2d 665, 667 (4th
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Cir. 1987) (citing Newberry v. Davison Chem. Co., 65 F.2d 724, 729 (4th Cir. 1933)).
Moreover, an appellate tribunal is generally not the proper place for a litigant to
commence its participation in a case, as is too often the situation for nonparty appellants.
In cases where the justifications behind the general rule are inapplicable, however,
we have shown greater flexibility with respect to nonparty appellants. As we recently
explained in Public Citizen, “a nonparty [may] appeal a district court’s order or judgment
when the appellant (1) possessed ‘an interest in the cause litigated’ before the district
court and (2) ‘participated in the proceedings actively enough to make him privy to the
record.’” 749 F.3d at 259 (quoting Kenny, 820 F.2d at 668).
Appellant’s appeal of the Juvenile Disclosure Orders is, with respect to standing,
unproblematic. That appeal is simply a run-of-the-mill effort by a named party to seek
review of adverse district court rulings. Appellant no doubt has standing to proceed with
such an appeal.
Moreover, we hold that Appellant has standing to appeal the Adult Protective
Orders. Although Appellant was not a party in the Adult Prosecution, we believe that
Appellant’s appeal of the Adult Protective Orders satisfies the two Public Citizen
requirements for nonparty appeals.
confidentiality interests that were impacted by the Adult Protective Orders. The JJDPA
“mandates the non-disclosure of juvenile delinquency proceeding records” and related
information, in order to safeguard “interests of juvenile confidentiality.” United States v.
Under Seal, 709 F.3d 257, 261–62 (4th Cir. 2013). Although the Adult Protective Orders
Pg: 21 of 37
may have been justified by exceptions to the JJDPA—as discussed below—the
disclosures they authorized still clearly undermined Appellant’s juvenile confidentiality
Regarding the second requirement, Appellant filed written objections and
participated in a hearing contesting disclosure of what Appellant argued was confidential
material, although the district court nonetheless ruled against him. We have previously
held that the filing of objections addressing confidentiality issues, which “the district
court fully considered, and overruled,” was “akin to party participation” as it pertains to
those issues. Public Citizen, 749 F.3d at 260; see also Kenny, 820 F.2d at 667–68
(permitting a nonparty to appeal a district court’s approval of a sale of stock, where the
nonparty appellant filed objections to the sale, which the district court considered but
overruled). We adhere to this reasoning in the present case.
Admittedly, Appellant’s participation in the litigation of the Adult Protective
Orders was indirect, because his filings and his hearing all took place in the Juvenile
Prosecution case number rather than the Adult Prosecution case number. Nonetheless, in
light of the highly unique circumstances of this case, we believe that Appellant’s
challenges to the Juvenile Disclosure Orders were also in effect challenges to the Adult
Protective Orders. Both sets of orders were issued by the exact same judge, centered on
identical issues, and involved identical disclosures.
Furthermore, permitting Appellant’s nonparty appeal would in no way implicate
the special standing concerns cited in Public Citizen. Appellant’s appeal is designed to
vindicate his own legal right to have information pertaining to him kept confidential;
Pg: 22 of 37
centers on specific, statutorily-protected confidentiality interests; and represents a
juvenile’s effort to benefit from a juvenile-specific statute. His appeal, therefore, does
not implicate “the general prohibition on a litigant’s raising another person’s legal rights,
the rule barring adjudication of generalized grievances more appropriately addressed in
the representative branches, [or] the requirement that a plaintiff’s complaint fall within
the zone of interests protected by the law invoked.” Allen v. Wright, 468 U.S. 737, 751
(1984), quoted in Public Citizen, 749 F.3d at 259–60. 5
In sum, we hold that Appellant’s appeal of the district court’s disclosure
authorization orders is on firm footing with respect to standing.
Secure in Appellant’s standing to move forward with his appeal of the district
court’s disclosure authorization orders, we now address the question of whether
Appellant’s appeal is nonetheless moot.
Regarding the disclosure of the Transfer
Transcript and the Investigative Report, we hold that a live controversy still exists as to
In Public Citizen, we suggested that these standing concerns were “prudential,”
based on a citation to Allen and a corresponding explanatory parenthetical. Public
Citizen, 749 F.3d at 259–60 (citing Allen, 468 U.S. at 751). We now expressly
acknowledge, however, that the Supreme Court has recently pushed back on Allen’s
“prudential” language. Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377 (2014). In Lexmark, the Supreme Court clarified that the zone of interests concern
refers to an issue of statutory authorization, the generalized grievance concern an issue of
“constitutional” dimensions, and the third-party standing concern an issue that is “harder
to classify.” Id. at 1387 & n.3. Importantly, regardless of how these three concerns are
labeled, none of them are implicated by Appellant’s appeal.
Pg: 23 of 37
those matters. Regarding the disclosure of Appellant’s identity, however, we hold that
that matter is moot.
Article III of the Constitution limits the jurisdiction of federal courts to cases and
controversies. U.S. Const. art. III, § 2, cl.1. Moreover, federal courts do not issue
advisory opinions; they “only decide cases that matter in the real world.” Catawba
Riverkeeper Found. v. N.C. Dep’t of Transp., 843 F.3d 583, 589 (4th Cir. 2016) (quoting
Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir. 2010)). As such, a
case is mooted on appeal when a court is unable to grant any “effectual relief” to the
prevailing party. Williams v. Ozmint, 716 F.3d 801, 809 (4th Cir. 2013) (citing Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)). Nonetheless, “[a]s long as
the parties have a concrete interest, however small, in the outcome of the litigation, the
case is not moot.” Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (quoting Knox v.
Service Employees, 132 S. Ct. 2277, 2287 (2012)). “While the prospect of partial relief is
sufficient to defeat mootness, mere speculation ‘afford[s] no basis for finding the
existence of a continuing controversy as required by Article III.’” Constand v. Cosby,
833 F.3d 405, 409 (3d Cir. 2016) (quoting Blanciak v. Allegheny Ludlum Corp., 77 F.3d
690, 700 (3d Cir. 1996)).
The federal government contends that the issue of the propriety of the district
court’s authorization of the disclosure of the Transfer Transcript and the Investigative
Report is moot on appeal, because this Court cannot grant Appellant any effectual relief.
Pg: 24 of 37
According to the federal government, because this Court can only retract the disclosures,
but cannot order the recipients of the disclosed documents to forget the information
contained therein, review by this Court does not do Appellant any good. We disagree.
In Church of Scientology, the Supreme Court addressed a challenge to an Internal
Revenue Service summons seeking certain taxpayer records, where the records had
already been turned over in response to the summons. 506 U.S. at 10–11. The Court
unanimously held that the appeal was not moot, because “the Government’s continued
possession of those materials” constituted an “affront to the taxpayer’s privacy,” which
could be addressed with the “partial remedy [of] ordering the Government to destroy or
return any and all copies it may have in its possession.” Id. at 13.
Likewise, in this case we believe that Appellant has a privacy interest in records of
his testimony and interview—i.e., the Transfer Transcript and the Investigative Report—
that is affronted by the Adult Defense Attorneys’ continued possession of those records.
These records contain several pages of statements that Appellant made with an
expectation of confidentiality, which is undermined when the statements are not kept
confidential. As such, this Court has the power to grant Appellant effectual relief in the
form of an order to have those records destroyed or returned.
Such an order, moreover, would also benefit Appellant in that it would close the
door to an ongoing risk of disclosure. The Adult Protective Orders corresponding to the
Transfer Transcript and the Investigative Report authorize each of the Adult Defense
Attorneys to “discuss the substance of the [Transfer Transcript and the Investigative
Report] with their client” so long as they do “not provide their client with direct access to
Pg: 25 of 37
the document[s].” J.A. 725, 727. Were we to rescind the disclosure of the transcript and
report, then the Adult Defense Attorneys could no longer discuss the substance of these
documents with their clients. This would constitute effectual relief for Appellant.
Consequently, we hold that the controversy regarding the disclosure of the
Transfer Transcript and the Investigative Report is not moot.
The federal government also argues that the controversy regarding the disclosure
of Appellant’s identity is moot. On this matter, we agree with the federal government.
When Appellant’s identity was disclosed to the Adult Defense Attorneys, the
affront to Appellant’s privacy interest in his identity was completed. Appellant’s identity
is now known to the Adult Defense Attorneys; we cannot unring that bell. Although
multi-page records of confidential statements can be ordered destroyed or returned, this
Court cannot realistically order individuals to forget a uniquely discrete piece of
information like an identity.
Moreover, the Adult Protective Order corresponding to Appellant’s identity does
not present an ongoing disclosure risk. That order requires the Adult Defense Attorneys
to, as a general matter, limit access to Appellant’s identity to themselves. It authorizes
the Adult Defense Attorneys to disclose Appellant’s identity to their clients only in three
(i) when the court schedules a material witness deposition with
Appellant, (ii) 30 days before trial if Appellant remains detained by the district court, or
Pg: 26 of 37
(iii) when “otherwise ordered by the court.” J.A. 782–83. The first circumstance appears
extremely unlikely to ever arise because Appellant invoked his privilege against selfincrimination, was denied testimonial immunity, was deported to El Salvador, and is not
expected to be at risk of prosecution in the United States until after the Adult Prosecution
ends. The second circumstance appears extremely unlikely to ever arise for similar
reasons. The third circumstance is merely a reiteration of district court authority, rather
than a provision creating any new disclosure risk.
Finally, there is no genuine risk of future use of Appellant’s identity by the Adult
Defense Attorneys. Again, Appellant has already invoked his privilege against selfincrimination, been denied testimonial immunity, and been deported to El Salvador. As
such, the Adult Defense Attorneys are extremely unlikely to use Appellant’s identity in
the one manner in which they were authorized to use it, i.e., in connection with an
application for a material witness warrant.
Under these particular circumstances, we are unable to discern a ground for
rejecting the federal government’s charge that the disclosure of Appellant’s identity is a
moot controversy. Any risk of future disclosure or use of Appellant’s identity is not
simply small, it is entirely speculative.
This conclusion does not end our analysis, however, for we must now determine
how to dispose of the moot aspect of Appellant’s appeal. We believe that vacatur and
remand is the appropriate course of action in this case.
Pg: 27 of 37
“Our ‘customary practice when a case is rendered moot on appeal is to vacate the
moot aspects of the lower court’s judgment,’” Catawba Riverkeeper, 843 F.3d at 589
(quoting Norfolk, 608 F.3d at 161), and then “remand for dismissal,” Mellen v. Bunting,
327 F.3d 355, 364 (4th Cir. 2003). This “rule is an equitable one, applicable only in
limited circumstances, and used to ensure that a losing party’s right of appellate review is
not frustrated by circumstances out of that party’s control.”
Thus, vacatur is
improper when the mootness resulted from the “voluntary action of the losing party”
In contrast, “[v]acatur is in order when mootness occurs through
happenstance—circumstances not attributable to the parties—or, relevant here, the
‘unilateral action of the party who prevailed in the lower court.’” Arizonans for Official
English v. Arizona, 520 U.S. 43, 71–72 (1997) (quoting U.S. Bancorp Mortg. Co. v.
Bonner Mall P’ship, 513 U.S. 18, 23 (1994)). With that said, some of our sister circuits
have suggested that vacatur is improper “when the losing party has made no attempt
whatsoever to seek a stay” that could facilitate appellate review. Constand, 833 F.3d at
412 (citing In re Western Pacific Airlines, 181 F.3d 1191 (10th Cir. 1999); Mahoney v.
Babbitt, 113 F.3d 219 (D.C. Cir. 1997)).
With these considerations in mind, it is clear that vacatur is in order here. The
mootness at issue in this case is attributable to the federal government’s conduct of
disclosing Appellant’s identity to the Adult Defense Attorneys. Moreover, we cannot say
that Appellant in any way contributed to mootness by declining to seek a stay. At the
hearing addressing the disclosure of Appellant’s identity, Appellant’s attorney
specifically requested a stay in order to facilitate appellate review, but to no avail.
Pg: 28 of 37
We therefore vacate the district court’s denial of Appellant’s motion to prohibit
disclosure of his identity. We also vacate any aspect of the Adult Protective Order
corresponding to Appellant’s identity that authorizes disclosure of the identity by the
federal government to the Adult Defense Attorneys, or authorizes the Adult Defense
Attorneys to use the identity or disclose it to others. Our vacatur does not affect any
aspect of the latter order that is designed to guard against further dissemination of
Appellant’s identity. We also remand with instructions to the district court to dismiss the
federal government’s prior requests to allow disclosure of Appellant’s identity. This
dismissal should not extend to prior requests by the federal government for safeguards
against further dissemination of Appellant’s identity.
Having decided that Appellant has standing to move forward in his appeal, and
that Appellant’s challenge to the disclosure of the Transfer Transcript and the
Investigative Report is not moot, this Court can now address the merits of his challenge.
Appellant’s challenge turns on whether the JJDPA leaves district courts with discretion to
authorize disclosure of juvenile materials, and if it does, whether the district court below
nonetheless erred in authorizing the disclosure of the Transfer Transcript and the
Investigative Report. We review a district court’s interpretation of a statute de novo.
United States v. Hilton, 701 F.3d 959, 966 (4th Cir. 2012). We review a district court’s
decision on matters of discretion for abuse of discretion. Highmark Inc. v. Allcare Health
Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748 (2014).
Pg: 29 of 37
At the outset, we must recognize that the JJDPA generally protects the Transfer
Transcript and the Investigative Report from disclosure.
In analyzing the disclosure of the Transfer Transcript and the Investigative Report,
two provisions of the JJDPA are particularly relevant: subsections (a) and (c) of 18
U.S.C. § 5038. Moreover, § 5038(a) can be divided into three relevant clauses. The first
clause, which we refer to as the “Safeguard Clause,” provides that “[t]hroughout and
upon the completion of the juvenile delinquency proceeding, the records shall be
safeguarded from disclosure to unauthorized persons.” § 5038(a). The second clause,
which we refer to as the “Mandatory Disclosure Clause,” instructs that such records
“shall be released to the extent necessary to meet” inquiries from any of six types of
entities. Id. Finally, the third clause, which we refer to as the “Non-Disclosure Clause,”
cautions that “[u]nless otherwise authorized by this section, information about the
juvenile record may not be released when the request for information is related to an
application for employment, license, bonding, or any civil right of privilege.” Id.
At the same time, § 5038(c) provides the following directive:
During the course of any juvenile delinquency proceeding, all information
and records relating to the proceeding, which are obtained or prepared in
the discharge of an official duty by an employee of the court or an
employee of any other governmental agency, shall not be disclosed directly
or indirectly to anyone other than the judge, counsel for the juvenile and the
Government, or others entitled under this section to receive juvenile
The Transfer Transcript—a record of Appellant’s testimony in his transfer
hearing—is a record of and relating to a juvenile delinquency proceeding, and is thus
Pg: 30 of 37
protected by both subsections (a) and (c) of § 5038. Furthermore, the Investigative
Report—which documents Appellant’s statements to law enforcement officers in
connection with the Trujillo murder—constitutes both a record and information relating
to a juvenile delinquency proceeding protected by § 5038(c).
Although the JJDPA’s confidentiality protections attach to both Appellant’s
transcript and report, we must next consider whether the district court retained discretion
to authorize disclosure of these documents notwithstanding the aforementioned
protections. We conclude that it did retain such discretion.
We arrive at this conclusion in light of helpful guidance from our sister circuits.
The First and Third Circuits have read § 5038(a) as leaving the district court with
discretion to authorize disclosure of the records of a juvenile delinquency proceeding.
See United States v. Three Juveniles, 61 F.3d 86, 90–91 (1st Cir. 1995); United States v.
A.D., 28 F.3d 1353, 1355 (3d Cir. 1994). Those courts emphasize that the Safeguard
Clause bars disclosure not to “all persons,” but only to “unauthorized persons,” which
suggests that district courts retain discretion to classify certain persons as authorized to
receive disclosures. Three Juveniles, 61 F.3d at 90–91; A.D., 28 F.3d at 1359.
Additionally, those courts explain how the Mandatory Disclosure Clause does not
purport to serve as the exclusive basis of disclosure authority. The Mandatory Disclosure
Clause only provides an exclusive list of entities that “shall be” entitled to receive
disclosures (i.e., mandatory disclosures); however, it does not address the subject of
Pg: 31 of 37
entities that “may be” authorized to receive disclosures (i.e., permissive disclosures).
Three Juveniles, 61 F.3d at 91; A.D., 28 F.3d at 1359.
Those courts add that reading the Mandatory Disclosure Clause to foreclose
permissive disclosures would create a superfluity issue. In their view, if the Mandatory
Disclosure Clause provided the exclusive list of allowable disclosures, then it would be
unnecessary for the Non-Disclosure Clause to specify certain types of requests as
incapable of receiving disclosure “unless otherwise authorized” by § 5038; such requests
would necessarily be precluded from receiving disclosures if they could not rely upon
Mandatory Disclosure Clause authorization.
Three Juveniles, 61 F.3d at 91; A.D., 28
F.3d at 1359–60. 6
Those courts also read § 5038(c) as authorizing permissive disclosures. They
reason that when § 5038(c) prohibits disclosure of “information and records relating to
[any juvenile delinquency] proceeding,” except from “others entitled under this section to
receive juvenile records,” the statute excepts from its disclosure prohibition those
authorized by the district court to receive juvenile records under § 5038(a).
Juveniles, 61 F.3d at 91 n.5; A.D., 28 F.3d at 1360. In other words, one of the effects of
Although unacknowledged by the First and Third Circuits, we note that one
could argue that the Non-Disclosure Clause is somewhat superfluous even if the
Safeguard Clause is read to include permissive disclosure authority; after all, the types of
requests identified in the Non-Disclosure Clause would necessarily be precluded from
receiving disclosure if they were not “otherwise authorized” to receive disclosure via the
Mandatory Disclosure Clause or the Safeguard Clause’s grant of permissive disclosure
authority. Even assuming that this is true, it would simply mean that the Non-Disclosure
Clause weighs neutrally on the permissive disclosure authority question, rather than
Pg: 32 of 37
the above-described exception is to import § 5038(a)’s permissive disclosure authority
concept into § 5038(c).
The recognition of permissive disclosure authority, moreover, has the virtue of
allowing district courts to accommodate disclosure requests in the event that the
Constitution requires or at least arguably requires disclosure, regardless of whether the
Mandatory Disclosure Clause applies. Examples of such requests include disclosure
requests premised on the public’s First Amendment interest in access to judicial
proceedings, Three Juveniles, 61 F.3d at 90; A.D., 28 F.3d at 1359, or disclosure requests
premised on a defendant’s Sixth Amendment right to material necessary for crossexamination, United States v. Chacon, 564 F.2d 1373, 1376–77 (9th Cir. 1977)
(Kennedy, J., concurring) (citing Davis v. Alaska, 415 U.S. 308 (1974)). Because an
absolute non-disclosure reading of subsections (a) and (c) of § 5038 would “raise serious
constitutional problems” by erecting a non-disclosure bar in cases where the Constitution
actually or arguably requires disclosure—and because a permissive disclosure reading is
not “plainly contrary to the intent of Congress” in light of the relevant statutory text—we
are obliged to adhere to the latter reading. Edward J. DeBartolo Corp. v. Fla. Gulf Coast
Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). 7
Our recognition of the virtue of a district court being able to grant disclosure
requests that have a constitutional foundation should not be construed to preclude a
district court from being able to grant disclosure requests premised on other important
interests that lack a constitutional foundation.
Pg: 33 of 37
The First and Third Circuits’ reading of subsections (a) and (c) of § 5038 is
convincing, and we now adopt it in this Circuit. Specifically, we read these provisions as
containing grants of permissive disclosure authority, subject to limitations that may be
imposed elsewhere by the JJDPA. 8
Having concluded that district courts retain discretion under § 5038 to authorize
limited disclosures of confidential juvenile records and information, we must next decide
whether the district court in this case abused its discretion by authorizing the disclosure
of the Transfer Transcript and the Investigative Report.
As explained below, we
conclude that the district court committed no abuse of discretion.
At the outset, we emphasize the principles that guide our review of disclosures of
juvenile records and information. “[A]n essential aspect of the juvenile justice system
has been to maintain the privacy of the young offender and, contrary to our criminal law
The parties extensively discuss Chacon, a Ninth Circuit decision holding that a
district court—pursuant to the first exception in § 5038(a)’s Mandatory Disclosure
Clause—is empowered to authorize disclosure of protected juvenile records to a
defendant who was being prosecuted for a criminal transaction that the juvenile
participated in. 564 F.2d at 1375–76 (majority opinion). As then-Judge Anthony
Kennedy’s concurrence noted, the problem with this holding is that it undermines
confidentiality protection in a type of case where defendants may need it most—in cases
where a juvenile may fear retaliation from adult co-principals, and thus be reluctant to
speak freely about a criminal transaction. Id. at 1377 (Kennedy, J., concurring). Because
in our view § 5038(a)’s Safeguard Clause already contains a general permissive
disclosure authority concept, it is unnecessary for us to adopt the Chacon majority’s
§ 5038(a)(1)-based “same-transaction” disclosure exception. Moreover, we advise
district courts invoking Safeguard Clause-based permissive disclosure authority to remain
mindful of then-Judge Kennedy’s warnings about the risks associated with authorizing
disclosure to adult co-principals.
Pg: 34 of 37
system, to shield him [or her] from the dissemination of truthful information and
transparency that characterizes the punitive system in which we try adults.” United
States v. Elkins, 683 F.3d 1039, 1047 (9th Cir. 2012) (internal quotation marks omitted).
Moreover, confidentiality encourages “the juvenile to discuss his [or her] actions freely
and completely so that rehabilitation can commence without delay, and without fear of
retaliation or censure.” Chacon, 564 F.2d at 1377 (Kennedy, J., concurring). Juvenile
confidentiality is the “norm,” and thus any permissive disclosures must be justified by
sound reasons and must not be unduly harmful to the juvenile. Three Juveniles, 61 F.3d
We are satisfied that the district court’s disclosure authorizations in this case were
consistent with these principles and thus within the bounds of its discretion. To begin,
the court could reasonably conclude that Appellant’s confidentiality interests should give
way to the federal government’s interest in ensuring that the Adult Defense Attorneys
had the materials necessary to present an effective defense for their clients. The Transfer
Transcript and the Investigative Report contained Appellant’s version of the Trujillo
murder in his role as a co-principal, and records of a co-principal’s version of an alleged
crime can give a defense attorney a better understanding of the case that his or her client
faces. Moreover, at the time the court was deciding whether to disclose the Transfer
Transcript and the Investigative Report, Appellant was at risk of being deported and had
not yet invoked his privilege against self-incrimination; therefore, prompt disclosure of
the documents was needed to ensure that the Adult Defense Attorneys could decide
Pg: 35 of 37
whether to apply for a material witness warrant for Appellant before he became
Furthermore, the disclosure of the Transfer Transcript and the Investigative Report
was done in a circumscribed manner and with an eye toward Appellant’s safety. The two
documents focused on the factual circumstances surrounding Trujillo’s murder;
extraneous and personal information was removed from both documents. Finally, the
Transfer Transcript and the Investigative Report were each accompanied by a respective
protective order outlining seven measures designed to guard against dissemination of the
two documents beyond the Adult Defense Attorneys. Those measures were proposed by
the federal government itself, for the express purpose of preserving Appellant’s safety.
Appellant insists that the district court should have demanded more specificity
from the federal government than it did, and that the court should have conducted an in
camera review of the materials before authorizing disclosure. In light of the federal
government’s careful redactions, the parties’ detailed briefing, and the district court
judge’s experience presiding over both the Juvenile Prosecution and the Adult
Prosecution, we believe that these additional steps—although they would have potentially
been helpful—were not necessary.
Under these circumstances, we discern no abuse of discretion in the district court’s
authorization of disclosure of the Transfer Transcript and the Investigative Report.
Pg: 36 of 37
In summary, we dismiss Appellant’s appeal of the district court’s dismissal of
Appellant’s information without prejudice and its denial of Appellant’s motion for
dismissal of the information with prejudice. However, we affirm the district court’s
decision to disclose the Transfer Transcript and the Investigative Report. We vacate as
moot the aspects of the district court’s judgment authorizing the disclosure of Appellant’s
identity by the federal government to the Adult Defense Attorneys, and authorizing the
Adult Defense Attorneys to use the identity or disclose it to others. Of course, we leave
in place the safeguards issued to prevent further dissemination of that information.
Finally, we remand with instructions to the district court to dismiss the government’s
prior requests for disclosure of Appellant’s identity, again leaving in place prior requests
for safeguards against further dissemination.
AFFIRMED IN PART,
DISMISSED IN PART,
VACATED IN PART, AND
REMANDED WITH INSTRUCTIONS
Pg: 37 of 37
DIANA GRIBBON MOTZ, concurring:
I concur in the opinion for the panel majority, except for its holding that the
juvenile had non-party standing to appeal from the protective orders issued in the adult
case. The juvenile did not participate at all in the adult case and so by definition did not
“participate in the proceedings actively enough to make him privy to the record” as
required for non-party standing. Doe v. Public Citizen, 749 F.3d 246, 259 (4th Cir. 2014)
(internal quotation marks omitted).
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