USA v. James Guerrero

Filing

FILED OPINION (STEPHEN R. REINHARDT, MARY H. MURGUIA and DAVID A. EZRA) DISMISSED. Judge: SR Dissenting, Judge: MHM Authoring, FILED AND ENTERED JUDGMENT. [8307077]

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 1 of 33

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
JOSEPH CABRERA SABLAN,
Appellee-Intervenor,
v.
JAMES NINETE LEON GUERRERO,
Defendant-Appellant.





No. 11-10577
D.C. No.
1:08-cr-00259PMP-2
OPINION

Appeal from the United States District Court
for the Eastern District of California
Philip M. Pro, District Judge, Presiding
Argued and Submitted
April 16, 2012—San Francisco, California
Filed August 31, 2012
Before: Stephen Reinhardt and Mary H. Murguia,
Circuit Judges, and David A. Ezra, District Judge.*
Opinion by Judge Murguia;
Dissent by Judge Reinhardt

*The Honorable David A. Ezra, District Judge for the U.S. District
Court for Hawaii, sitting by designation.

10275

Case: 11-10577

10278

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 2 of 33

UNITED STATES v. GUERRERO

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

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 3 of 33

10279

Tivon Schardl, Federal Public Defender’s Office, Sacramento,
California, for the appellee-intervenor.
Dawrence Wayne Rice, Jr. and Elana Landau, Office of the
United States Attorney, Fresno, California, and Bonnie Hannan, Department of Justice, Washington, DC, for the appellee.

OPINION
MURGUAI, 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

Case: 11-10577

10280

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 4 of 33

UNITED STATES v. GUERRERO

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
evaluation of 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.
1

The district court vacated the competency hearing pending resolution
of this appeal.

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

II.

Page: 5 of 33

10281

Jurisdiction

[1] 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

[2] 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 (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 (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, 130 S. Ct. 599, 603 (2009) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (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

Case: 11-10577

10282

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 6 of 33

UNITED STATES v. GUERRERO

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 (quoting P. R. Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (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.”).
[3] 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.
[4] 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 confi-

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 7 of 33

10283

dentiality 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 (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.”).
[5] 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. 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).
2

Had the district court ordered the competency hearings sealed, a third
party, such as a newspaper, would not have had standing to appeal. See
United States v. Brooklier, 685 F.2d 1162, 1165 (9th Cir. 1982) (“This circuit has not recognized standing to appeal in persons such as Times Mirror
and Blake who, though denied access to the proceedings, were not parties
to the case below.”).

Case: 11-10577

10284

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 8 of 33

UNITED STATES v. GUERRERO

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 fair trial, and his privacy interests.
We find these arguments unpersuasive.
Guerrero’s reliance on attorney-client privilege is largely
foreclosed by the Supreme Court’s decision in Mohawk, 130
S. Ct. at 609. In a wrongful termination action, Mohawk
attempted to bring a collateral order appeal of the district
court’s order that Mohawk disclose information about plaintiff Carpenter’s pre-termination interview with Mohawk’s
counsel. Id. at 603-04. The district court had ruled that
Mohawk had waived attorney-client privilege. Id. The
Supreme Court held that decisions adverse to the attorneyclient privilege, as a class, are not effectively unreviewable on
appeal of a final judgment, and therefore not subject to collateral order review. Id. at 606. The Court held that “the limited
benefits of applying the blunt, categorical instrument of
§ 1291 collateral order appeal to privilege-related disclosure
orders simply cannot justify the likely institutional costs.” Id.
at 608 (internal quotation marks and citation omitted).
[6] The Supreme Court went on to hold that the important
right to attorney-client confidentiality is sufficiently protected
by postjudgment appeals: “Appellate courts can remedy the
improper disclosure of privileged material in the same way
they remedy a host of other erroneous evidentiary rulings: by
vacating an adverse judgment and remanding for a new trial
in which the protected material and its fruits are excluded
from evidence.” Id. at 606-07. The Court further explained
that deferring review until final judgment will not chill attorney communications because “clients and counsel are
unlikely to focus on the remote prospect of an erroneous disclosure order, let alone on the timing of a possible appeal.” Id.

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 9 of 33

10285

at 607. Moreover, parties must already account for the real
possibility of disclosure due to a misapprehension of the privilege’s scope, waiver, or the crime-fraud exception. Id.
There being no discernible harm to the public interest, the
Supreme Court further held that the remaining harm to the
individual litigant from an erroneous disclosure of confidential communications could be adequately, if imperfectly, remedied by review after final judgment. Id. at 607-08. The Court
identified the availability of an interlocutory appeal pursuant
to 28 U.S.C. § 1292(b) and the extraordinary writ of mandamus as “safety valve” mechanisms for the prompt corrections
of serious errors. The Court further recognized the possibility
of refusing disclosure and appealing the district court’s imposition of sanction, as well as the availability of protective
orders to limit spillover effects of disclosure. Id. Finally, the
Court explained that the need to ensure that the class of collaterally appealable orders remains narrow has acquired special
force with the recent “enactment of legislation designating
rulemaking, ‘not expansion by court decision,’ as the preferred means for determining whether and when prejudgment
orders should be immediately appealable.” Id. at 609 (quoting
Swint v. Chambers County Com’n, 514 U.S. 35, 48 (1995)).
[7] Mohawk thus establishes that, at least in the civil context, adverse attorney-client privilege rulings are not effectively unreviewable on appeal. We conclude that the
reasoning in Mohawk also applies to orders denying motions
to seal competency hearings in criminal proceedings.
As with civil litigation, we doubt that the possibility of
open competency proceedings would chill criminal defendants’ communications with their attorneys, particularly given
the gravity of the punishment that many defendants face.
Although an interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b) or defiance of a discovery order is not available in
a criminal proceeding, a writ of mandamus may sometimes
be, as is a protective order that limits the scope of disclosure

Case: 11-10577

10286

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 10 of 33

UNITED STATES v. GUERRERO

and the admissibility of the communications in future criminal
proceedings. And in the last resort, appellate courts can remedy the improper disclosure of privileged material by vacating
the judgment.
Guerrero also cites to our post-Mohawk holding in Islamic
Shura Council, 635 F.3d at 1164. In Islamic Shura Council,
we considered an interlocutory appeal of a district court’s
decision to unseal an order regarding documents requested
pursuant to the Freedom of Information Act (“FOIA”). We
explained that once the order was unsealed, “the unsealing
cannot be reversed,” and any later government appeal would
be moot. Id. at 1164.3 However, Islamic Shura Council is
readily distinguishable because in that case, the government
sought to prevent the disclosure of sensitive law enforcement
and national security information that the government contended could be properly withheld under FOIA. Id. at 1165.
Our conclusion that later review could not ameliorate the government’s disclosure of such sensitive information does not
suggest that public access to competency proceedings is also
effectively unreviewable on appeal. Neither the harm or
redressability of improper disclosure of documents related to
national security is comparable to any concerns raised by public access to a criminal defendant’s competency proceedings.
Further, any alleged incursions on criminal defendants’
rights to privacy and a fair trial do not render the unsealing
order effectively unreviewable on appeal such that collateral
order review would be justified. While these interests are significant, we do not see how they would be substantially
imperiled by open competency proceedings. It is possible that
the press might report on once private details of a criminal
defendant’s life that are disclosed at the proceeding and in
3

We ultimately did not decide whether the second prong, resolution of
an important issue separate from the merits, was satisfied and did not
assert jurisdiction under the collateral order doctrine. Islamic Shura Council, 635 F.3d at 1164.

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 11 of 33

10287

related documents. However, there is no authority for the
proposition that a defendant’s preference that his personal history be kept personal justifies denial of public access to criminal proceedings. Further, countless competency proceedings
have been held publicly without compromising the fairness of
subsequent trials. Also, as the district court stated, alternatives
to sealing, such as careful screening of prospective jurors and
moving the location of the trial, are available to protect defendants’ right to a fair trial.
Like orders denying motions to seal competency proceedings, orders granting these motions are also not effectively
unreviewable on appeal. Third parties challenging orders
denying public access to proceedings or documents do not
have standing to appeal directly, and therefore could not seek
collateral order review. See In re McClatchy Newspapers,
Inc., 288 F.3d 369, 373 (9th Cir. 2002) (citing United States
v. Sherman, 581 F.2d 1358, 1360 (9th Cir.1978)) (newspaper,
which was not a party to criminal action, lacks standing to
appeal district court order sealing documents). However, they
may petition this Court for a writ of mandamus. See, e.g.,
Oregonian Pub. Co. v. U.S. Dist. Court., 920 F.2d 1462 (9th
Cir. 1990) (granting petition for writ of mandamus to direct
release of plea agreement documents); Associated Press v.
U.S. Dist. Court, 705 F.2d 1143 (9th Cir. 1983) (granting petition for writ of mandamus to direct unsealing of pretrial documents). Therefore, even if the district court had granted
Guerrero’s motion, mandamus review is available and so the
order would not be effectively unreviewable.
[8] We conclude that any benefits of immediate appeal of
a district court’s order resolving a motion to seal competency
proceedings and related documents is not “sufficiently strong
to overcome the usual benefits of deferring appeal until litigation concludes.” Mohawk, 130 S.Ct. at 605. Every year our
nation’s state and federal courts conduct thousands of competency evaluations. See Jason R. Marshall, Two Standards of
Competency Are Better than One: Why Some Defendants Who

Case: 11-10577

10288

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 12 of 33

UNITED STATES v. GUERRERO

Are Not Competent To Stand Trial Should Be Permitted To
Plead Guilty, 37 U. Mich. J .L. Reform 1181, 1186 (2004)
(stating that an estimated 25,000 to 60,000 competency evaluations are performed annually in the United States). The lack
of appeals to date of orders resolving motions to seal these
proceedings suggests that trial courts are effectively and efficiently balancing defendants’ interest in privacy with the public’s interest in access. We decline to open the door to a
potential inundation of piecemeal appeals of these rulings,
which would delay district court litigation and burden our
Court. See id. at 608.
[9] The class of claims can be adequately vindicated by the
possibility of a writ of mandamus, rigorous juror screening,
possible relocation of the trial, protective orders, and if appropriate, post-judgment relief. Therefore, “the chance that the
litigation at hand might be speeded, or a particular injustice
averted, does not provide a basis for jurisdiction under
§ 1291.” Id. at 605 (internal quotation marks and alterations
omitted).
B.

Writ of Mandamus

In the alternative, Guerrero petitions for a writ of mandamus. The writ of mandamus “is a drastic and extraordinary
remedy reserved for really extraordinary causes.” Cheney v.
U.S. Dist. Court, 542 U.S. 367, 380 (2004) (internal quotations marks omitted). We consider five factors in determining
whether mandamus relief is appropriate: (1) whether the petitioner has no other means to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in any
way not correctable on appeal; (3) whether the district court’s
order is clearly erroneous as a matter of law; (4) whether the
district court’s order is an oft repeated error or manifests a
persistent disregard of the federal rules; and (5) whether the
district court’s order raises new and important problems or
issues of first impression. Bauman v. U.S. Dist. Court, 557
F.2d 650, 654-55 (9th Cir. 1977). “[T]he absence of the third

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 13 of 33

10289

factor, clear error, is dispositive.” Perry v. Schwarzenegger,
591 F.3d 1147, 1156 (9th Cir. 2010) (internal quotation marks
and citation omitted). Guerrero has the “burden of showing
that his right to the issuance of the writ is clear and indisputable.” Bauman, 557 F.2d at 656 (internal quotation marks and
alterations omitted). The district court did not clearly err in
denying Guerrero’s motion to seal, and therefore Guerrero
cannot satisfy the requirement for a writ of mandamus.
As we review for clear error on a petition for mandamus,
we need not resolve the underlying legal issue of public
access to competency proceedings. So long as we are not
firmly convinced that the district court was wrong, “we cannot hold the district court’s interpretation to be clearly erroneous, and thus we cannot issue the writ, even though the
district court’s interpretation might be overruled later on
direct appeal.” DeGeorge v. U.S. Dist. Court, 219 F.3d 930,
936 (9th Cir. 2000). Accordingly, we consider briefly the relevant law to determine only if the district court clearly erred.
[10] Whether there is a public right of access to criminal
competency proceedings is a matter of first impression. See
United States v. Kaczynski, 154 F.3d 930, 932 (9th Cir. 1998)
(declining to resolve media’s First Amendment claim of
access to defendant’s court-ordered psychiatric competency
report). We begin with the press and public’s “presumed right
of access to court proceedings and documents” under the First
Amendment. Oregonian Pub. Co., 920 F.2d at 1465 (citing
Press-Enterprise I, 464 U.S. at 510). The Supreme Court has
explained that openness enhances both the fairness of a criminal trial and the appearance of fairness that is essential to public confidence in the system. Press-Enterprise I, 464 U.S. at
508. To determine whether there is a right of access to a particular kind of hearing, we look to the Supreme Court’s twopart “experience” and “logic” test. Press-Enterprise Co. v.
Superior Court, 478 U.S. 1, 8 (1986) (“Press-Enterprise II”).
If a proceeding satisfies the test, a qualified First Amendment
right of access arises, which can be overcome “only by an

Case: 11-10577

08/31/2012

10290

ID: 8307077

DktEntry: 48-1

Page: 14 of 33

UNITED STATES v. GUERRERO

overriding interest based on findings that closure is essential
to preserve higher values and is narrowly tailored to serve that
interest.” Id. at 9.
1.

Experience

The “experience” prong of the First Amendment access test
considers “whether the place and process have historically
been open to the press and general public.” Id. at 8. The experience requirement “does not look to the particular practice of
any one jurisdiction, but instead ‘to the experience in that type
or kind of hearing throughout the United States.’ ” El Vocero
de P.R. v. Puerto Rico, 508 U.S. 147, 150 (1993) (per curiam)
(quoting Rivera-Puig v. Garcia-Rosario, 983 F.2d 311, 323
(1st Cir. 1992) (emphasis in original)).
[11] We are aware of only one (unpublished) federal court
decision discussing whether there is a First Amendment right
of access to a competency proceeding, United States v. Curran, 2006 WL 1159855 (D. Ariz. May 2, 2006) (unpublished).4
In Curran, the district court found that mental competency
hearings have historically been open to the public absent specific facts supporting closure. Id. at *2. The court relied primarily on four state court cases holding that mental
competency proceedings should be open to the public.5 More4

The District Court for the District of Idaho denied a media motion to
unseal a competency evaluation report, but did not apply the “experience”
and “logic” test in making its ruling. In re Spokesman-Review, 2008 WL
3084252, *4-5 (D. Idaho Aug. 05, 2008) (unpublished). The District Court
for the Eastern District of Virginia, in deciding whether to close a hearing
concerning a defendant’s competency to waive counsel, noted that
“[c]ompetency hearings are routinely held in open court in this district.”
United States v. Moussaoui, 2002 WL 1311734 at *1 (E.D. Va. June 11,
2002) (unpublished).
5
See Miami Herald Pub. Co. v. Chappell, 403 So.2d 1342 (Fla. Ct. App.
1981) (holding that competency proceedings should be open); Soc’y of
Prof’l Journalists v. Bullock, 743 P.2d 1166, 1178 (Utah 1987) (“pretrial
competency proceedings in criminal cases may be closed only upon a

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 15 of 33

10291

over, we are persuaded by Guerrero’s failure to identify any
court’s restriction of access to competency hearings. Our own
research reveals no decision denying open access to competency proceedings, and one additional state court decision
granting access. The district court did not clearly err in concluding that competency proceedings of a criminal defendant
have historically been open to the public and press.
2.

Logic

[12] The “logic” element inquires “whether public access
plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at
8. The district court stated that the value of ensuring public
access to criminal proceedings is well settled and that nothing
in federal law provides that competency hearings should be
closed to the public. We agree.
Our conclusion is informed by First Amendment access
rights to other criminal proceedings. Public access to criminal
trials and juror selection is “essential to the proper functioning
of the criminal justice system.” Id. at 11-12. Additionally, the
Supreme Court has held that there is a qualified First Amendment right of access to a preliminary hearing in California, as
it is “often the final and most important step in the criminal
proceeding.” Id. at 12. We have gone further, holding that
showing that access raises a realistic likelihood of prejudice to the defendant’s right to a fair trial.”); Cheyenne K. v. Superior Court, 256 Cal. Rptr.
68, 71 (Cal. App. 1989) (holding that the public may attend a competency
hearing for a minor charged with murder unless the minor establishes a
reasonable likelihood of substantial prejudice to the right to receive a fair
and impartial trial); In re Times-World Corp., 488 S.E.2d 677, 682 (Va.
App. 1997) (holding that the First Amendment and Virginia Constitution
grant the media a qualified right to attend competency proceedings); but
see People v. Atkins, 514 N.W. 2d 148 (Mich. 1994) (finding no qualified
right of access to criminal mental competency reports that have not been
admitted into evidence).

Case: 11-10577

08/31/2012

10292

ID: 8307077

DktEntry: 48-1

Page: 16 of 33

UNITED STATES v. GUERRERO

there is a general First Amendment right of access to pretrial
hearings and documents. See Associated Press, 705 F.2d at
1145. In contrast, grand jury proceedings are a “classic example” of “government operations that would be totally frustrated if conducted openly.” Press-Enterprise II, 478 U.S. at
8-9.
An adversarial competency hearing better resembles a
criminal trial or a preliminary hearing than it does a grand
jury proceeding. In competency proceedings, a defendant has
the right to be represented by counsel and the opportunity to
testify, present evidence, subpoena witnesses, and to confront
and cross-examine witnesses. 18 U.S.C. § 4247(d). Moreover,
like preliminary hearings, competency hearings may determine the critical question of whether a criminal defendant will
proceed to trial. A court’s decision on whether a defendant is
able to understand the nature of the proceedings against him
and whether he is able to assist counsel in his defense is a critical part of the criminal process. Allowing public access to a
competency hearing permits the public to view and read about
the criminal justice process and ensure that the proceedings
are conducted in an open, objective, and fair manner. Indeed,
public confidence in the judicial system is especially significant where a defendant accused of a violent felony is not tried
because he was found incompetent.
[13] Accordingly, the district court did not clearly err in
concluding that the logic prong of the First Amendment
access test has been satisfied. As the experience and logic factors are both met, the district court did not clearly err in finding a qualified First Amendment right of access to mental
competency hearings.
3.

Guerrero’s rights

A qualified First Amendment right of public access is not
absolute, but rather may accede to the rights of the accused.
We therefore proceed to the district court’s consideration of

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 17 of 33

10293

whether Guerrero’s individual rights override the public’s
qualified First Amendment right of access. The presumption
of access may be overcome “only by an overriding interest
based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.” PressEnterprise I, 464 U.S. at 510. Closing a hearing requires that:
“(1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no
alternatives to closure that would adequately protect the compelling interest.” Oregonian Pub. Co., 920 F.2d at 1466.
The district court held that Guerrero had not shown a substantial probability of irreparable harm if the competency proceedings are not sealed, or that there are no viable
alternatives. This holding is not clearly erroneous.
a.

Fair Trial

Guerrero argues that public disclosure of the detailed content of the competency evaluations and the bases for opinions
expressed therein will violate his right to a fair trial. According to Guerrero, publicity of his case is significant. At least
85 news articles have been written about the crime and case
by two news organizations based within the district, and
newspapers elsewhere in the country have carried the stories.
[14] Closure may be ordered on the basis of a defendant’s
Sixth Amendment right to a fair trial only if, “first, there is a
substantial probability that the defendant’s right to a fair trial
will be prejudiced by publicity that closure would prevent
and, second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.” PressEnterprise II, 478 U.S. at 13-14.
We have made clear that “pervasive publicity, without
more, does not automatically result in an unfair trial.” Seattle
Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1517 (9th Cir.

Case: 11-10577

08/31/2012

10294

ID: 8307077

DktEntry: 48-1

Page: 18 of 33

UNITED STATES v. GUERRERO

1988). In assessing prejudicial effect, we look to the publicity’s “ ‘capacity to inflame and prejudice the entire community.’ ” Id. (quoting CBS v. U.S. Dist. Court, 729 F.2d 1174,
1180 (9th Cir. 1983)). “The publicity must create a pattern of
deep and bitter prejudice throughout the community.” Id.
(internal quotation marks and alterations omitted).
[15] The district court observed that while there has been
some pretrial publicity, it was not so extensive or current that
juror screening and possible relocation could not provide a
fair trial. The vast majority of articles submitted by Guerrero
are from only two media outlets, which are located near the
penitentiary where the crime occurred. Guerrero has made no
showing that any publicity from the disclosures at the competency hearing would generate “deep and bitter prejudice”
through the “entire community.” Id. Moreover, he has not
shown an open competency proceeding is likely to generate
significant additional publicity. To the extent that alternatives
to closure of the competency hearing are necessary, juror
screening and relocation of the trial are available. See PressEnterprise II, 478 U.S. at 15 (stating that voir dire allows the
court to identify any individual jurors “whose prior knowledge of the case would disable them from rendering an impartial verdict.”). The district court’s conclusion that Guerrero’s
right to a fair trial does not overcome the public’s First
Amendment right of access is not clearly erroneous.
b.

Privacy

Guerrero also contends that the public right of access to the
competency proceeding is outweighed by his right to privacy.
Guerrero notes that the evaluation reports describe his mental
illnesses and cognitive defects, his academic record as a child,
his social history, physical and sexual abuse he experienced,
and the names of Guerrero’s minor daughter and other relatives. The district court stated that to the extent that Guerrero’s privacy rights are cognizable, they are largely

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 19 of 33

10295

surrendered by the fact that he has placed his competency at
issue.
[16] We do not agree with the district court that a defendant surrenders his right to privacy because he may not be
constitutionally fit to stand trial. The Supreme Court has “repeatedly and consistently recognized that the criminal trial of
an incompetent defendant violates due process.” Cooper v.
Okla., 517 U.S. 348, 354 (1996) (internal quotation marks
omitted). The constitutional imperative to not try incompetent
defendants does not itself deprive possibly incompetent individuals of their privacy rights. Moreover, courts have given
weight to the privacy interests of defendants when considering access to judicial proceedings and related documents. See
Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th
Cir. 1989) (considering the privacy interest of individuals
identified in search warrants and noting that “[o]ther courts
have also taken account of the privacy rights of individuals
when considering access requests to judicial documents.”).
[17] However, even if the privacy rights of Guerrero and
others named in competency documents constitute a compelling interest, there are alternatives to full closure of the competency proceedings that can protect these interests. Courts
may issue protective orders, redact names from reports, and
restrict the use of other people’s names during the hearing.
Therefore, there are alternatives to closure and it was not clear
error to conclude that Guerrero’s privacy interests do not
override the First Amendment right of access.
c.

Attorney-client privilege and work product

[18] Guerrero argues that a public competency hearing
would pierce the confidentiality that protects his communications with his attorney and his attorney’s work product. The
district court found that Guerrero waived the privilege to the
extent that he has put his competency at issue. As with Guerrero’s right to privacy, we disagree that Guerrero has waived

Case: 11-10577

10296

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 20 of 33

UNITED STATES v. GUERRERO

the attorney-client privilege because he may not be fit for
trial. However, Guerrero’s interest in maintaining the confidentiality of his attorney communications does not override
the public’s interest in open proceedings.
[19] Guerrero has not shown that his interest in maintaining the confidentiality of his attorney communications would
be significantly harmed if the proceeding is open. See Oregonian Pub. Co., 920 F.2d at 1466 (requiring harm to a substantial interest and the absence of any alternatives before a
proceeding may be closed). Guerrero has already agreed to
share the privileged documents with the Government and his
co-defendant, and the district court has issued an order that
prohibits the use at trial of privileged information disclosed
during the competency hearing. Because Guerrero’s confidential communications will not be used against him in a criminal
proceeding, his primary interest in the privilege is protected.
Any distress he may feel through public disclosure of information presented at the competency hearing does not overcome the public’s First Amendment right of access. Id. at
1465 (First Amendment right “can be overcome only by an
overriding right or interest based on findings that closure is
essential to preserve higher values and is narrowly tailored to
serve that interest.” (internal quotation marks omitted)).
[20] In denying the petition for mandamus, we do not
decide whether the district court correctly denied Guerrero’s
motion to seal competency proceedings. Rather, “[w]hether or
not the district court’s interpretation ultimately withstands
appeal, we cannot find it ‘clearly erroneous’ as that term is
used in the mandamus analysis.” In re Van Dusen, 654 F.3d
838, 846 (9th Cir. 2011). The district court did not clearly err
in concluding that Guerrero’s asserted interests in the
attorney-client privilege, a fair trial, and privacy do not overcome the public right to open proceedings. Because the district court did not commit clear error, we do not reach the four
other factors necessary for granting mandamus. Guerrero has

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 21 of 33

10297

not established an indisputable right to the issuance of the
writ, and we deny the petition for mandamus.
Because we do not have jurisdiction under either the collateral order doctrine or mandamus, the appeal is DISMISSED.

REINHARDT, Circuit Judge, dissenting:
We consider for collateral review, the class of cases involving appeals from orders granting or denying motions to seal
competency proceedings. I would hold that the class satisfies
each of the three requisite factors for establishing jurisdiction
under the collateral order doctrine, Cohen v. Beneficial Ind.
Loan Corp., 337 U.S. 541 (1949), and that we therefore have
jurisdiction over all such appeals, including Guerrero’s appeal
in this case. The majority recognizes that this class of cases
meets the first and second Cohen factors. It errs on the third
Cohen factor, however, when it focuses on attorney-client
privilege, undervaluing the importance of First Amendment
freedoms and privacy at stake in each appeal from a criminal
case.
It is sometimes easiest to examine the class by using the
illustration of the case before the court. I will therefore begin
my analysis doing so here. In this death penalty case, the
defendant seeks to seal the record of his competency hearing,
at least until completion of his criminal proceeding. The district judge denied his request. Now, the majority refuses to
permit him to appeal that ruling until after all the harm he
seeks to avoid has been done. The majority’s holding eliminates any opportunity for Guerrero to protect his own privacy
rights or the rights of those whose personal histories will be
revealed during the course of his competency hearing. Even
more important, the majority opinion, by holding that we lack
jurisdiction over appeals from orders granting or denying
motions to seal competency hearings, deprives future parties

Case: 11-10577

10298

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 22 of 33

UNITED STATES v. GUERRERO

— defendants as well as others whose private lives are intertwined with theirs — from appealing the improvident denial
of sealing orders.
Guerrero’s past, like that of so many death-eligible defendants, includes a lengthy and sordid history of varied forms
of abuse and mental difficulties; a history that will be revealed
in the course of his competency hearing. The allegations
which will involve family members and others whose lives
are intertwined with Guerrero’s will not be subject to legal
procedures designed to ensure their accuracy or validity.
Guerrero stands accused of a sensational crime that has
elicited intense public interest and concern; a factor common
to most, if not all capital cases. In Guerrero’s case, the victim’s murder has been the subject of substantial, and continuing, news coverage, and was the impetus for a federal policy
change authorizing the carrying of pepper spray canisters by
guards in federal prisons. In death penalty cases, we are often
faced with a district court’s need to consider sensitive, private
information even before proceeding to trial, as well as a competing, and pressing, concern for maximum public disclosure.
By contrast, neither of these factors is ordinarily present in
run-of-the-mill non-capital cases. Pre-trial competency hearings in non-capital cases are rare and when they do occur they
usually simply involve a diagnosis of the defendant’s present
mental state rather than an exhaustive examination of his
entire set of life experiences, especially alleged sexual abuse
or torture, frequently by family members.
As a result of the majority’s decision, Guerrero will have
no opportunity to challenge the district court’s determination
that the public, including potential jurors, have an unlimited
right to review every aspect of his personal history as a result
of the conduct of his court-ordered pre-trial competency proceeding. Moreover, the ramifications of this decision extend
far beyond Guerrero’s individual appeal because the majority
has effectively eliminated our jurisdiction over any appeal

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 23 of 33

10299

from an order denying a motion to seal a competency hearing,
regardless of the weight of the privacy interests at stake.
In determining the question of whether we have jurisdiction
over the order denying Guerrero’s motion to seal his hearing
we must also consider the converse: whether this court has
jurisdiction over a district court’s order granting a party’s
motion to seal. If a party seeking closure prevails in the trial
court, then the party opposing closure and seeking interlocutory appeal will most likely do so by asserting the public’s
constitutional right to access such proceedings — as the codefendant Sablan did in this case.1 The competing interests at
stake — public access and individual privacy — remain the
same regardless of which party prevails in the district court,
and the outcome of an erroneous judgment would result in a
similarly irreparable harm.
In Guerrero’s case, the party seeking appellate review represents the individuals whose privacy is threatened; but those
interests are directly counterposed to the public’s right of
access. Although the public’s First Amendment interests may
have prevailed in the district court in this instance, such will
not always be the case. Had the district court conducted the
necessary balancing test and determined that the relevant considerations weighed in favor of sealing Guerrero’s competency hearing, then the party seeking review would be
representing the interests of the public and asserting its and
their First Amendment rights.
Whether this court has jurisdiction over appeals from decisions regarding sealing orders cannot depend on whether the
1

Although the trials were severed and Sablan was no longer a party to
Guerrero’s underlying criminal proceeding, a co-defendant (or even the
defendant himself if the government is the party seeking closure) could
assert this First Amendment right if another party sought to have some or
all of the material submitted in the course of the competency proceeding
sealed.

Case: 11-10577

10300

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 24 of 33

UNITED STATES v. GUERRERO

particular appellant is likely to win or lose on the merits of his
appeal once jurisdiction is exercised. If we were to recognize
jurisdiction over Guerrero’s claim and proceed to the merits,
we would then conduct the separate analysis necessary to
determine whether sealing is the proper result in this instance.
First, we would determine the as yet unanswered question
whether the qualified First Amendment right of access
extends to pre-trial competency hearings. If it does, we would
then consider whether a failure to seal would give rise to compelling interests on both sides, including whether it would
affect Guerrero’s right to a fair trial. Should Guerrero’s interests as a whole outweigh the public’s First Amendment right,
the court would then determine, in the individual case,
whether there are alternatives to sealing that will effectively
protect these rights. See Phoenix Newspapers, Inc. v. U.S.
Dist. Ct. of Ariz., 156 F.3d 940 (9th Cir. 1998); United States
v. Brooklier, 685 F.2d 1162 (9th Cir. 1982). Only if not would
a sealing order be the proper remedy.
Guerrero’s case may or may not present a close question on
the merits. That, however, is not the issue that we consider
when we determine whether we have jurisdiction. To resolve
the threshold jurisdictional question we must answer only
whether the present class of orders presents an important
issue, separable from the merits, that will be irrevocably
resolved to the detriment of one of the parties supporting or
opposing the order. I strongly disagree with the majority’s
conclusion that we have no jurisdiction over the merits of an
appeal of a district court’s order denying or granting a motion
to seal a competency hearing, and that an aggrieved party
must wait until one side or the other has suffered irrevocable
injury before its appeal may be heard.
I.
The collateral order doctrine established under Cohen permits a court of appeals to review a final order that “conclusively determine[s] the disputed question, resolve[s] an

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 25 of 33

10301

important issue completely separate from the merits of the
action, and [is] effectively unreviewable on appeal from a
final judgment.” Perry v. Schwarzenegger, 591 F.3d 1147,
1154 (9th 2010) (quoting Coopers & Lybrand v. Livesay, 437
U.S. 463, 468 (1978)) (internal quotation marks omitted).
It is uncontested that the first Cohen factor — a court’s
conclusive resolution of a disputed issue — is satisfied in the
district court’s order denying Guerrero’s motion to seal. It
would similarly be satisfied by the district court’s order sealing a defendant’s competency hearing, for the reasons discussed below.
As to the second Cohen factor — whether the appeal presents an important issue that is completely separate from the
underlying action — the case before us satisfies this requirement, as would an order granting the motion to seal. Although
the majority agrees that the sealing issue is distinct from the
merits of the government’s case against Guerrero and purports
to recognize the importance of the issues at stake, I believe
that its undervaluation of the interests presented here ultimately leads it to conclude, incorrectly, that Guerrero’s appeal
fails to satisfy the third Cohen factor: that the district court’s
order is not effectively unreviewable on appeal.
With regard to this third factor — whether the order is
effectively unreviewable — the Supreme Court in Mohawk
held that “the decisive consideration is whether delaying
review until the entry of final judgment ‘would imperil a substantial public interest’ or ‘some particular value of a high
order.’ ” 130 S.Ct. 599, 605 (2009) (quoting Will v. Hallock,
546 U.S. 345, 352-53 (2006)). In its analysis of whether Guerrero’s appeal satisfies this criterion, the majority considers
primarily his claim that the unsealing and denial of the motion
to seal implicates his attorney-client privilege. It then rejects
this argument based on the Supreme Court’s decision in
Mohawk, in which the Court held that an evidentiary ruling in
a civil case that implicates the attorney-client privilege is not

Case: 11-10577

10302

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 26 of 33

UNITED STATES v. GUERRERO

reviewable under the collateral order doctrine. Although
Guerrero argues unpersuasively that this privilege is also
threatened by the district court’s denial of his motion to seal,
attorney-client confidentiality is hardly the principal interest
affected by the district court’s order here; nor is it the principal interest that we must consider in determining whether we
have jurisdiction over this appeal, and others like it.
To determine whether we have jurisdiction to review an
appeal under the collateral order doctrine, we must look not
simply to the case before us, but to the class of cases of which
it is a member. Digital Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 868 (1992); See also Mohawk, 130 S.Ct. at 605
(“[O]ur focus is on ‘the entire category of cases to which a
claim belongs’ ” (quoting Digital Equipment, 511 U.S. at
868)). The interests implicated in a district court’s order
regarding the sealing of a competency hearing involve recognized and highly regarded social values, and those interests
(either Guerrero’s or the public’s) would be imperiled by a
legally erroneous district court order. Accordingly, the order
is an appropriate subject for review under the collateral order
doctrine. For the purposes of determining jurisdiction, it does
not matter whether it appears to us that the appellant will ultimately prevail or not; or, to put it differently, whether we
believe the particular order to be correct or erroneous. Nor
does it matter whether we can conceive of other solutions than
sealing all or none.
A district court’s order to seal — or to unseal — involves
two sides. It involves the defendant’s (and his family’s and
perhaps others’) interest in privacy;2 at the same time it substantially implicates the public’s First Amendment right of
access. The public’s constitutionally-protected right to
observe criminal proceedings is viewed as “one of the essen2

Depending upon the evidence that the government seeks to introduce
at that hearing, it is also plausible that it may seek closure in the interest
of the privacy of its own witnesses.

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 27 of 33

10303

tial qualities of a court of justice.” Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 566 (1980) (internal quotation
marks and citation omitted). Limitations on the public’s right
of access, therefore, undoubtedly implicate a “substantial public interest.”
Competing against this First Amendment right, are the privacy rights of defendants as well as third parties not present
in the underlying criminal proceedings, whose personal lives
and tragedies are the subject of extensive examination in the
course of competency proceedings.3 This right is similarly
recognized as a value of a high order, superceding even the
public’s right of access under certain circumstances. In particular, the Court has recognized that the public’s First Amendment right may be required to yield to the weighty privacy
interests of those involved in a criminal proceeding when the
subject of disclosure constitutes is a personal history of sexual
abuse. Press-Enterprise Co. v. Superior Court (“PressEnterprise I”), 464 U.S. 501, 512 (1984) (observing that the
possibility that a member of the venire disclosed during voir
dire that she, or a member of her family, had been raped was
a “legitimate privacy interest” that must be balanced against
the public’s right of access). Thus, the Court’s own precedents have established that the First Amendment and privacy
interests at stake in the closure or failure to close a court pro3
The sealing of the competency hearing also implicates the defendant’s
right to a fair trial. Although this is undoubtedly a value of the highest
order, Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464
U.S. 501, 512 (1984) (“No right ranks higher than the right of the accused
to a fair trial.”), rights that “can be protected adequately by postconviction appellate review” are generally insufficient to fulfill the third
Cohen requirement. United States v. No Runner, 590 F.3d 962, 966 (9th
Cir. 2009); see also Flanagan v. United States, 465 U.S. 259, 268-69
(1984). The right to a fair trial has been held to be such a right. United
States v. No Runner, 590 F.3d at 966. Although concern for a defendant’s
right to a fair trial is insufficient to establish jurisdiction under the collateral order doctrine, if we do have jurisdiction over the collateral appeal,
then a ruling on the merits necessarily involves considering Guerrero’s fair
trial rights as we evaluate the correctness of the district court’s order.

Case: 11-10577

10304

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 28 of 33

UNITED STATES v. GUERRERO

ceeding are both values of a high order, albeit competing values.
Neither the privacy of the individuals whose personal histories may be disclosed in the course of a competency hearing,
nor the First Amendment rights of those who may be denied
access to the contents of such a hearing, will ever be vindicated if a district court improvidently grants or denies a
motion to seal and that decision remains immune from collateral review. The First Amendment and privacy rights are
competing interests in a motion to seal; thus regardless of
whether the hearing is ordered to be sealed or unsealed, one
set of interests will be irrevocably damaged if an erroneous
order is issued and no immediate review is available. If the
district court grants a motion to seal a defendant’s competency hearing because a substantial public interest, such as the
defendant’s right to a fair trial or an individual’s right to privacy, requires that information be kept confidential, the public
is denied timely access to an important, and possibly dispositive, criminal proceeding. Although the public may gain
access to the transcript of these proceedings at some later
date, after the trial and the inevitable appeals have concluded,
delayed access to such information is nonetheless an “irreparable” injury that continues with “each passing day.”
Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (1975)
(Blackmun, Circuit Judge). Any remedy that may be obtained
after the conclusion of the criminal proceeding is therefore
insufficient to satisfy the public’s First Amendment right to
“participate in and serve as a check upon the judicial process.” Globe Newspaper Co. v. Sup. Ct. for Norfolk Cnty, 457
U.S. 596, 605 (1982).
Similarly, there is no remedy for the individuals whose personal tragedies and histories of abuse may be revealed in the
course of a defendant’s competency hearing, or even those
family members or others who are the objects of false and
malicious accusations. As we have observed on more than one
occasion, “[s]ecrecy is a one-way street: [o]nce information is

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 29 of 33

10305

published, it cannot be made secret again.” In re Copley
Press, Inc., 518 F.3d at 1025; see also Islamic Shura Council
of S. Cal. v. Fed. Bur. of Invest., 635 F.3d 1160, 1164 (9th
Cir. 2011). If, upon review after the disclosure of the information at issue, an appellate court determines that the competency hearing should not have been made public in its
entirety, the affected individuals have no remedy that will render their private lives private once again. Allowing an order
erroneously denying a party’s motion to seal to be implemented by denying immediate appellate review, undoubtedly
damages the privacy of individuals in a manner that can never
be undone. In short, an order granting or denying a motion to
seal a competency hearing in a criminal proceeding satisfies
all three elements of the Cohen test, and this court therefore
has jurisdiction over Guerrero’s appeal.4
II.
The majority relies heavily on Mohawk in its decision to
the contrary, but this reliance is misplaced. Neither the
4

Even if we were to treat the two orders — those denying a motion to
seal a competency hearing and those granting such a motion — as different classes of orders for the purposes of determining our jurisdiction, and
were to consider in this case only whether the Cohen factors are satisfied
by the district court’s order denying a motion to seal, the argument in support of collateral order jurisdiction would be at least as strong. First, it is
clear that once information is released, the individual’s interest in keeping
the information private has been conclusively determined. See, e.g., In re
Copley Press, 518 F.3d at 1025 ( “An order to unseal thus ‘conclusively
determine[s]’ that the information will be public.”). Second, as the majority agrees, the sealing order is an issue that is completely separate from
the merits of Guerrero’s underlying criminal case. Finally, for the same
reasons that the privacy issue is conclusively determined upon the release
of an individual’s private personal history, the issue is effectively unreviewable on appeal because there is no effective remedy that may be had
once the information has been made public. Indeed, as we have already
recognized, an appeal challenging an order unsealing documents in a
criminal proceeding satisfies all three Cohen requirements for these precise reasons, and we must similarly recognize that an order denying a
motion to seal similarly satisfies these elements. See id.

Case: 11-10577

10306

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 30 of 33

UNITED STATES v. GUERRERO

express holding of Mohawk, nor the rationale upon which it
was based, supports a holding that we lack jurisdiction over
an order granting or denying the sealing of a competency
hearing of a criminal defendant. First, in its decision, the
Supreme Court explicitly did not express a view as to whether
its holding was intended to prohibit appellate courts from
exercising jurisdiction under the collateral order doctrine over
orders that pertained to rights other than the attorney-client
privilege specifically at issue in that case. 130 S.Ct. at 609
n.4. Second, erroneous evidentiary rulings such as that at
issue in Mohawk, involve rights that can be effectively remedied by “vacating an adverse judgment and remanding for a
new trial.” Id. at 607. As already discussed, reversal of the
underlying judgment in the criminal case will not remedy, or
even affect, the privacy or First Amendment rights implicated
in the sealing order. Third, the alternative means of protecting
attorney-client privilege that are available to civil litigants, as
recognized by the Court in Mohawk, are either insufficient or
unavailable to vindicate the privacy and First Amendment
rights at issue here. Neither interlocutory appeals, which are
available only to civil litigants, 28 U.S.C. § 1292(b), nor noncompliance with the court’s order is a feasible option for
asserting the rights of members of the public who are denied
access to criminal proceedings at the time they occur, or of
the individuals whose histories are divulged in the process of
a competency hearing and cannot ever thereafter become
secret again.5
5

The final avenue through which a party may challenge an adverse court
order cited by the Court in Mohawk is through a petition for a writ of mandamus. Id. at 607. Although this option is theoretically available to defendants such as Guerrero, as the majority opinion illustrates even when a
court exercises mandamus jurisdiction, relief is warranted only where the
district court’s order was clearly erroneous. A reversal cannot be granted
in cases in which the error of the district court’s ruling is not patently
obvious but a proper application of the law nonetheless compels a different result. Certainly, after the majority’s opinion becomes circuit law, a
party will be able to file a petition for mandamus but will rarely, if ever,
be able to show a clear error and thus will not be able to obtain mandamus
relief.

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 31 of 33

10307

Lastly, in Mohawk the Court expressed a practical concern
that permitting appeals under the collateral order doctrine of
routine discovery orders that may implicate attorney-client
privilege would “swamp the courts of appeal.” Id. at 608
(internal quotation omitted). As the majority opinion reveals,
competency hearings are held in approximately one third of
one percent of new criminal cases filed and “motions to seal
competency proceedings are very rare” and almost never
appealed. Maj. Op. at 10282. Even in this case, absent the
intervention by the co-defendant Sablan, the motion within
the district court would have gone unopposed. Thus, unlike
discovery orders, which are a routine part of nearly all civil
litigation, competency hearings are rare, and, more important,
attempts to seal them due to extensive pre-trial publicity or
privacy concerns are almost non-existent. The Supreme
Court’s concern in Mohawk regarding opening the floodgates
is therefore wholly inapplicable to orders regarding the sealing of competency hearings. Neither the Court’s holding, nor
the logic upon which it is based, can justify the mechanical
application of Mohawk to the present case.
III.
The majority arrives at its conclusion by making two crucial errors. First, it relies almost totally on the Supreme Court
decision in Mohawk, as explained above, which has little, if
any, relevance to the class of claims we must consider here.
Despite the incongruence between the harm caused by the
erroneous introduction of material covered by the attorneyclient privilege in a civil case and the harm created by an erroneous ruling with respect to the sealing of competency proceedings in a criminal case, which is the true issue in the type
of case before us, the majority focuses almost exclusively on
Guerrero’s argument regarding attorney-client privilege to
find that the outcome is compelled by the Court’s decision in
Mohawk. In doing so, it gives little consideration to the other
substantial rights that are affected by an order resolving the
sealing of a competency hearing.

Case: 11-10577

10308

08/31/2012

ID: 8307077

DktEntry: 48-1

Page: 32 of 33

UNITED STATES v. GUERRERO

Second, the majority fails to recognize that the sufficiency
of alternatives to sealing is a question that goes to the merits
of the particular order granting or denying the motion to seal,
and cannot be presumed for the entire class of claims. When
the majority finally, and briefly, discusses the important concerns, aside from attorney-client privilege, implicated in
orders regarding the sealing of competency hearings, it concludes that the alternatives to sealing would sufficiently protect any defendant’s right to a fair trial. Whether these
alternatives are sufficient in the particular case is a merits
question, to be considered only after it is determined that we
do have jurisdiction. Moreover, this is a question that must be
decided on a case-by-case basis by considering the particular
interests implicated and the feasibility of these other options
given the facts and circumstances of the individual case. If we
could say that these alternative sufficed in every case, then the
district court could never justifiably grant a motion to seal, or
it could deny such a motion without the particularized inquiry
that the law requires. Brooklier, 685 F.2d at 1167 (recognizing that the district court’s failure to conduct the particularized inquiry regarding the interests implicated and the
sufficiency of alternatives was error). Additionally, because
we must also consider within this class of claims the appeal
of orders granting a motion to seal, the majority’s reference
to the sufficiency of alternatives is of no relevance to parties
who are erroneously denied access because the court incorrectly deemed those alternatives insufficient in the particular
case before it. Such parties are equally deprived of access
under the rule the majority establishes today. Whether the
alternatives proposed by the district court satisfactorily protect Guerrero’s asserted rights — which would additionally
include his right to a fair trial once the merits of his sealing
motion are considered — is a matter unrelated to whether we
have Cohen jurisdiction over this entire class of cases, or to
whether the privacy interests implicated by such orders may
ever be vindicated upon appellate review of the underlying
criminal proceeding following their completion.

Case: 11-10577

08/31/2012

ID: 8307077

DktEntry: 48-1

UNITED STATES v. GUERRERO

Page: 33 of 33

10309

The importance of the competing rights at stake with
respect to motions to seal competency hearings, and the
inability to vindicate those rights effectively (on one side if
the order is granted and the other if it is denied) after the resolution of the underlying criminal matter, renders this order a
proper subject for review under the collateral order doctrine.
It would be difficult to imagine another set of rights that we
hold in comparably high regard, and for which the injury
inflicted by an erroneous judgment would be similarly incurable upon delayed review. For the foregoing reasons, I
respectfully dissent from the majority’s opinion holding that
we do not have jurisdiction under the collateral order doctrine
to consider Guerrero’s appeal. Although I would hold that
jurisdiction over this appeal is proper under Cohen, I express
no view as to the correctness of the district court’s order
denying sealing. Because, Guerrero’s claim is properly considered under our collateral order jurisdiction, I would dismiss
the petition for the writ of mandamus and determine on the
merits whether Guerrero’s competency hearing should be
sealed, rather than conclude merely that, even if the district
court erred, the error was not clear as a matter of law.
I dissent.