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United States v. Under Seal

United States Court of Appeals, Fourth Circuit

April 5, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
UNDER SEAL, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
UNDER SEAL, Party-in-Interest - Appellant, and 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; 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, Defendants.

          Argued: December 7, 2016

         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-00306-GBL-1)

         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.

          Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.

          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.

         I.

         A.

         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. 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 Trujillo's murder. 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"). In 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 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 prosecutors. 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 Prosecution. State prosecutors also presented plea offers to Appellant's attorney requiring Appellant to plead to an adult murder charge, although those offers were never accepted.

         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 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.

         B.

         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 order to fulfill what it perceived to be potential Brady[2] obligations. The items at issue included:

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 Trujillo. 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 testimony.
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 redactions.
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 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. J.A. 698. 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 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 number.

         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 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 without prejudice.

         II.

         In his opening brief, Appellant summarily asserts that this Court has subject-matter 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. ยง 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' ...


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