United States v. James Guerrero

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 11-10577

JOSEPH CABRERA SABLAN, D.C. No.

Appellee-Intervenor,  1:08-cr-00259-

v. PMP-2

JAMES NINETE LEON GUERRERO, OPINION

Defendant-Appellant.



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

10278 UNITED STATES v. GUERRERO

COUNSEL

Iris Roe Lee and Richard Glenn Novak, Law Offices of Rich-

ard G. Novak, Encino, California, for the appellant.

UNITED STATES v. GUERRERO 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 Han-

nan, 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 mur-

der 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 jurisdic-

tion over the appeal pursuant to either the collateral order doc-

trine 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 Compe-

tency of Defendant James Ninete Leon Guerrero, pursuant to

18 U.S.C. § 4241(a). Attached to the motion are a Compe-

tency Evaluation Report and a Neuropsychological Evaluation

10280 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 His-

tory 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 concern-

ing 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 spe-

cifically, unsealed the Motion for Hearing to Determine Com-

petency, 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 co-

defendant Sablan’s access. We do not reach the merits of the

district court’s ruling because we dismiss for lack of jurisdic-

tion.

1

The district court vacated the competency hearing pending resolution

of this appeal.

UNITED STATES v. GUERRERO 10281

II. Jurisdiction

[1] We first must address whether we have jurisdiction to

review this non-final judgment, pursuant to either the collat-

eral 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 exis-

tence of a decision by the District Court that ends the litiga-

tion 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. Car-

penter, 130 S. Ct. 599, 603 (2009) (quoting Cohen v. Benefi-

cial 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 admin-

istration and encroaches upon the prerogatives of district court

judges, who play a special role in managing ongoing litiga-

tion.” Id. at 605 (internal quotation marks omitted).

Three requirements must be met before we exercise collat-

eral order review. The order must: “ ‘[1] conclusively deter-

mine the disputed question, [2] resolve an important issue

10282 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 dis-

puted question of whether to make the order a matter of pub-

lic 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 Govern-

ment’s case or Guerrero’s defenses at trial. The proceedings

and materials that Guerrero seeks to be sealed have been dis-

closed to the Government, and the district court issued a pro-

tective order providing that information obtained by the

Government in relation to the competency evaluation is not

admissible against Guerrero in his criminal proceeding, sub-

ject 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-

UNITED STATES v. GUERRERO 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 crim-

inal proceedings is well-established and could present an

important issue on appeal. See Press-Enterprise Co. v. Supe-

rior Court, 464 U.S. 501, 508 (1985) (“Press-Enterprise I”)

(“Openness thus enhances both the basic fairness of the crimi-

nal 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 unre-

viewable 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 “individu-

alized 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 compe-

tency 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) (empha-

sis 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 cir-

cuit 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.”).

10284 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 plain-

tiff 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 attorney-

client privilege, as a class, are not effectively unreviewable on

appeal of a final judgment, and therefore not subject to collat-

eral 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 attor-

ney communications because “clients and counsel are

unlikely to focus on the remote prospect of an erroneous dis-

closure order, let alone on the timing of a possible appeal.” Id.

UNITED STATES v. GUERRERO 10285

at 607. Moreover, parties must already account for the real

possibility of disclosure due to a misapprehension of the priv-

ilege’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 confiden-

tial communications could be adequately, if imperfectly, rem-

edied 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 manda-

mus 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 impo-

sition 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 collat-

erally appealable orders remains narrow has acquired special

force with the recent “enactment of legislation designating

rulemaking, ‘not expansion by court decision,’ as the pre-

ferred 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 con-

text, adverse attorney-client privilege rulings are not effec-

tively 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 defen-

dants’ 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

10286 UNITED STATES v. GUERRERO

and the admissibility of the communications in future criminal

proceedings. And in the last resort, appellate courts can rem-

edy 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 con-

tended could be properly withheld under FOIA. Id. at 1165.

Our conclusion that later review could not ameliorate the gov-

ernment’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 pub-

lic 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 sig-

nificant, 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 Coun-

cil, 635 F.3d at 1164.

UNITED STATES v. GUERRERO 10287

related documents. However, there is no authority for the

proposition that a defendant’s preference that his personal his-

tory be kept personal justifies denial of public access to crimi-

nal 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 defen-

dants’ right to a fair trial.

Like orders denying motions to seal competency proceed-

ings, 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 peti-

tion for writ of mandamus to direct unsealing of pretrial docu-

ments). 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 litiga-

tion concludes.” Mohawk, 130 S.Ct. at 605. Every year our

nation’s state and federal courts conduct thousands of compe-

tency evaluations. See Jason R. Marshall, Two Standards of

Competency Are Better than One: Why Some Defendants Who

10288 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 evalu-

ations 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 effi-

ciently balancing defendants’ interest in privacy with the pub-

lic’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 appro-

priate, 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 manda-

mus. 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 quota-

tions marks omitted). We consider five factors in determining

whether mandamus relief is appropriate: (1) whether the peti-

tioner 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

UNITED STATES v. GUERRERO 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 indisputa-

ble.” 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 can-

not hold the district court’s interpretation to be clearly errone-

ous, 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 rele-

vant 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 crimi-

nal trial and the appearance of fairness that is essential to pub-

lic confidence in the system. Press-Enterprise I, 464 U.S. at

508. To determine whether there is a right of access to a par-

ticular kind of hearing, we look to the Supreme Court’s two-

part “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

10290 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 expe-

rience 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. Cur-

ran, 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 spe-

cific facts supporting closure. Id. at *2. The court relied pri-

marily on four state court cases holding that mental

competency proceedings should be open to the public.5 More-

4

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

UNITED STATES v. GUERRERO 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 compe-

tency proceedings, and one additional state court decision

granting access. The district court did not clearly err in con-

cluding 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 par-

ticular 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 Amend-

ment 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 defen-

dant’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).

10292 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 exam-

ple” of “government operations that would be totally frus-

trated 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 deter-

mine 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 crit-

ical 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 signifi-

cant 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 fac-

tors are both met, the district court did not clearly err in find-

ing 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

UNITED STATES v. GUERRERO 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.” Press-

Enterprise I, 464 U.S. at 510. Closing a hearing requires that:

“(1) closure serves a compelling interest; (2) there is a sub-

stantial probability that, in the absence of closure, this com-

pelling interest would be harmed; and (3) there are no

alternatives to closure that would adequately protect the com-

pelling interest.” Oregonian Pub. Co., 920 F.2d at 1466.

The district court held that Guerrero had not shown a sub-

stantial probability of irreparable harm if the competency pro-

ceedings 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 con-

tent of the competency evaluations and the bases for opinions

expressed therein will violate his right to a fair trial. Accord-

ing 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 ade-

quately protect the defendant’s fair trial rights.” Press-

Enterprise 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.

10294 UNITED STATES v. GUERRERO

1988). In assessing prejudicial effect, we look to the publici-

ty’s “ ‘capacity to inflame and prejudice the entire communi-

ty.’ ” 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 compe-

tency 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 Press-

Enterprise II, 478 U.S. at 15 (stating that voir dire allows the

court to identify any individual jurors “whose prior knowl-

edge of the case would disable them from rendering an impar-

tial 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 rela-

tives. The district court stated that to the extent that Guerre-

ro’s privacy rights are cognizable, they are largely

UNITED STATES v. GUERRERO 10295

surrendered by the fact that he has placed his competency at

issue.

[16] We do not agree with the district court that a defen-

dant surrenders his right to privacy because he may not be

constitutionally fit to stand trial. The Supreme Court has “re-

peatedly 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 indi-

viduals of their privacy rights. Moreover, courts have given

weight to the privacy interests of defendants when consider-

ing 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 compel-

ling interest, there are alternatives to full closure of the com-

petency 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 communica-

tions 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 Guer-

rero’s right to privacy, we disagree that Guerrero has waived

10296 UNITED STATES v. GUERRERO

the attorney-client privilege because he may not be fit for

trial. However, Guerrero’s interest in maintaining the confi-

dentiality of his attorney communications does not override

the public’s interest in open proceedings.

[19] Guerrero has not shown that his interest in maintain-

ing the confidentiality of his attorney communications would

be significantly harmed if the proceeding is open. See Orego-

nian Pub. Co., 920 F.2d at 1466 (requiring harm to a substan-

tial 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 confiden-

tial 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 infor-

mation presented at the competency hearing does not over-

come 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 over-

come the public right to open proceedings. Because the dis-

trict court did not commit clear error, we do not reach the four

other factors necessary for granting mandamus. Guerrero has

UNITED STATES v. GUERRERO 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 collat-

eral order doctrine or mandamus, the appeal is DISMISSED.

REINHARDT, Circuit Judge, dissenting:

We consider for collateral review, the class of cases involv-

ing 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 dis-

trict 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 elimi-

nates 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

10298 UNITED STATES v. GUERRERO

— defendants as well as others whose private lives are inter-

twined with theirs — from appealing the improvident denial

of sealing orders.

Guerrero’s past, like that of so many death-eligible defen-

dants, 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 vic-

tim’s murder has been the subject of substantial, and continu-

ing, 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 com-

peting, 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 hear-

ings 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 pro-

ceeding. Moreover, the ramifications of this decision extend

far beyond Guerrero’s individual appeal because the majority

has effectively eliminated our jurisdiction over any appeal

UNITED STATES v. GUERRERO 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 interlocu-

tory appeal will most likely do so by asserting the public’s

constitutional right to access such proceedings — as the co-

defendant 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 rep-

resents 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 con-

siderations weighed in favor of sealing Guerrero’s compe-

tency 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 deci-

sions 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.

10300 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 com-

pelling interests on both sides, including whether it would

affect Guerrero’s right to a fair trial. Should Guerrero’s inter-

ests 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 per-

mits a court of appeals to review a final order that “conclu-

sively determine[s] the disputed question, resolve[s] an

UNITED STATES v. GUERRERO 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 seal-

ing a defendant’s competency hearing, for the reasons dis-

cussed below.

As to the second Cohen factor — whether the appeal pre-

sents an important issue that is completely separate from the

underlying action — the case before us satisfies this require-

ment, 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 ulti-

mately 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 sub-

stantial 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 Guer-

rero’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

10302 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 princi-

pal 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 recog-

nized 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 ulti-

mately 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 sub-

stantially 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 essen-

2

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.

UNITED STATES v. GUERRERO 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 pub-

lic interest.”

Competing against this First Amendment right, are the pri-

vacy 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 partic-

ular, the Court has recognized that the public’s First Amend-

ment 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 (“Press-

Enterprise 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 prece-

dents have established that the First Amendment and privacy

interests at stake in the closure or failure to close a court pro-

3

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 post-

conviction 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 collat-

eral 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.

10304 UNITED STATES v. GUERRERO

ceeding are both values of a high order, albeit competing val-

ues.

Neither the privacy of the individuals whose personal histo-

ries 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 vindi-

cated if a district court improvidently grants or denies a

motion to seal and that decision remains immune from collat-

eral 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 compe-

tency hearing because a substantial public interest, such as the

defendant’s right to a fair trial or an individual’s right to pri-

vacy, requires that information be kept confidential, the public

is denied timely access to an important, and possibly disposi-

tive, 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 “irrepa-

rable” 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 pro-

cess.” Globe Newspaper Co. v. Sup. Ct. for Norfolk Cnty, 457

U.S. 596, 605 (1982).

Similarly, there is no remedy for the individuals whose per-

sonal 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

UNITED STATES v. GUERRERO 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 informa-

tion at issue, an appellate court determines that the compe-

tency hearing should not have been made public in its

entirety, the affected individuals have no remedy that will ren-

der their private lives private once again. Allowing an order

erroneously denying a party’s motion to seal to be imple-

mented 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 differ-

ent 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 sup-

port 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 major-

ity 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 unre-

viewable 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 pre-

cise reasons, and we must similarly recognize that an order denying a

motion to seal similarly satisfies these elements. See id.

10306 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 reme-

died 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 non-

compliance 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 man-

damus. Id. at 607. Although this option is theoretically available to defen-

dants 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 differ-

ent 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.

UNITED STATES v. GUERRERO 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 seal-

ing 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 cru-

cial 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 attorney-

client privilege in a civil case and the harm created by an erro-

neous ruling with respect to the sealing of competency pro-

ceedings 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.

10308 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 con-

cerns, aside from attorney-client privilege, implicated in

orders regarding the sealing of competency hearings, it con-

cludes that the alternatives to sealing would sufficiently pro-

tect 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 (recogniz-

ing that the district court’s failure to conduct the particular-

ized 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 incor-

rectly 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 pro-

tect 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.

UNITED STATES v. GUERRERO 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 reso-

lution 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 incur-

able 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 con-

sidered 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.