United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 14, 2011 Decided June 24, 2011
No. 10-3079
UNITED STATES OF AMERICA,
APPELLEE
v.
JARON BRICE,
APPELLANT
Consolidated with 10-3080
Appeals from the United States District Court
for the District of Columbia
(Nos. 1:05-mc-00405 & 1:05-mc-00406)
Jonathan S. Jeffress, Assistant Federal Public Defender,
argued the cause for appellant. With him on the briefs was A.
J. Kramer, Federal Public Defender.
Matthew B. Nicholson, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Ronald C. Machen, Jr., U.S. Attorney, and Roy W.
McLeese III, Assistant U.S. Attorney.
2
Before: HENDERSON, ROGERS, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: Jaron Brice was a pimp
who prostituted under-age girls, among others. He was
convicted of various federal sexual abuse crimes, and he was
sentenced to 25 years in prison. At his sentencing hearing,
the District Court referred to sealed material witness
proceedings concerning two victims of Brice’s activities.
After sentencing, Brice asked the District Court to unseal the
records of those two material witness proceedings. The
District Court denied the request. Brice appeals that denial,
claiming that the First Amendment guarantees a right of
access to material witness proceedings. See Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-80 (1980).
We assume arguendo that the qualified First Amendment right
of access to judicial proceedings extends to material witness
proceedings. Even so, under our First Amendment access
precedents, the public was not entitled to the records here,
which contained “substantial amounts of material of an
especially personal and private nature relating to the medical,
educational, and mental health progress” of the victims.
United States v. Brice, Nos. 05-405 & 05-406, slip ops. at 2
(D.D.C. Aug. 6, 2010) (orders denying motions to unseal); see
Washington Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir.
1991). We affirm the orders of the District Court.
I
Jaron Brice was convicted of child sex trafficking,
transporting a minor for prostitution, transporting an adult for
prostitution, first-degree child sexual abuse, and pandering.
3
As the District Court described it, Brice “preyed on very
young girls at very difficult times in their lives and used them
for his own purposes, used them, abused them, in really
terrible, terrible ways.” Tr. of Sent. Hr’g at 32, Sept. 15,
2006. At trial, the Government presented evidence that
Brice’s crimes involved at least three juveniles and four
adults. The counts on which Brice was convicted involved
two victims, one of whom was a minor.
During its investigation of Brice’s crimes, the
Government arrested two of his juvenile victims on material
witness warrants. 1 At the Government’s request, the court
sealed all documents related to the material witness warrants
and subsequent proceedings regarding detention of those
witnesses.
Brice was sentenced to 25 years’ imprisonment. At
Brice’s sentencing hearing, the District Court rejected Brice’s
counsel’s request for a 10-year sentence, noting that Brice’s
misconduct “didn’t happen just once,” but rather that “six or
seven” young women were involved, which “wasn’t a small
number.” Tr. of Sent. Hr’g at 19, June 19, 2009. Brice’s
counsel objected that Brice was convicted for acts involving
two victims, only one of whom was under age. Id. at 41. In
response to that objection, the District Court stated: “For
purposes of sentencing and the seriousness of the offense
there were girls, I know there were girls. I spoke to some of
the girls whom we held as material witnesses before trial.”
Id.
Brice later moved to unseal the material witness
proceedings regarding his victims. Brice asked for full
1
One was the minor victim of the crimes for which Brice was
convicted.
4
unsealing of each case file, or, “[i]n the alternative, . . .
limited unsealing of the miscellaneous case so that the
defense may review the court file and order the preparation of
any transcripts necessary to Mr. Brice’s appeal.” Brice stated
that he would agree to “whatever reasonable conditions the
Court deems appropriate, including the entry of an
appropriate protective order governing the use of the
information contained in the miscellaneous case file.”
Applying the Washington Post First Amendment
standard governing access to judicial proceedings, the District
Court denied Brice’s motions. See Washington Post v.
Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991). The court
based its decision on the fact that the “material witness
proceedings contain intensely private and painful information
about both girls’ medical and mental health issues.” United
States v. Brice, Nos. 05-405 & 05-406, slip ops. at 4 (D.D.C.
Aug. 6, 2010) (orders denying motions to unseal). The
District Court issued two identical opinions rejecting Brice’s
arguments for disclosure of the records related to the two
victims’ material witness proceedings.
II
Brice argues that sealing the records of the material
witness proceedings violated the public’s First Amendment
right of access to judicial proceedings.
The public possesses a qualified First Amendment right
of access to judicial proceedings where (i) there is an
“unbroken, uncontradicted history” of openness, and (ii)
public access plays a significant positive role in the
functioning of the proceeding. Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 573 (1980); see also Press-Enterprise
Co. v. Superior Court of Cal. (“Press-Enterprise II”), 478
5
U.S. 1, 8-9 (1986); Press-Enterprise Co. v. Superior Court of
Cal. (“Press-Enterprise I”), 464 U.S. 501, 505-10 (1984);
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605-
06 (1982). The right is “not absolute.” Press-Enterprise II,
478 U.S. at 9.
Applying the Richmond Newspapers test, the Supreme
Court has found that the public has a right of access to
criminal trials, voir dire proceedings, and preliminary
hearings. Richmond Newspapers, 448 U.S. at 564-80
(criminal trials); Press-Enterprise I, 464 U.S. at 505-10 (voir
dire proceedings); Press-Enterprise II, 478 U.S. at 7-10
(preliminary hearings). It has also invalidated a “mandatory
closure” law for testimony of juvenile victims of sexual
offenses. Globe Newspaper Co., 457 U.S. at 605-10.
Following the Supreme Court’s lead, this Court has
applied the Richmond Newspapers test and found a First
Amendment right of access to completed plea agreements, but
no right of access to “unconsummated” plea agreements.
Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir.
1991) (completed plea agreements); United States v. El-
Sayegh, 131 F.3d 158, 160-61 (D.C. Cir. 1997)
(unconsummated plea agreements).
Neither this Court nor any other court of appeals has
considered whether the First Amendment right of access to
judicial proceedings extends to material witness proceedings.
We need not decide that question here. We assume arguendo
that the First Amendment affords the public a right of access
to material witness proceedings. Even so, that right does not
entitle Brice to the records of the material witness
proceedings in this case.
6
Where there is a First Amendment right of access to a
judicial proceeding, the “presumption [of access] can be
overridden only if (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.” Washington Post, 935 F.2d
at 290 (internal quotation marks omitted).
Here, as to both victims, the District Court concluded that
all three prongs of the Washington Post test were satisfied and
justified sealing the material witness proceedings and records.
The District Court found a compelling interest in closing the
proceedings – namely, the interest in “not exposing intimate
medical and other facts about these then-juveniles to all and
sundry.” United States v. Brice, Nos. 05-405 & 05-406, slip
ops. at 3 (D.D.C. Aug. 6, 2010) (orders denying motions to
unseal); see also Press-Enterprise I, 464 U.S. at 511
(“compelling interest” when “deeply personal matters” at
stake). The court also indicated that “this compelling interest
would clearly be harmed if these records were unsealed,”
noting that “[f]ederal law recognizes the extremely personal
nature of proceedings involving child sexual assault victims,
including juveniles used for prostitution, and that disclosure
of information about them can be detrimental to the child,”
Brice, Nos. 05-405 & 05-406, slip ops. at 3 (orders denying
motions to unseal) (internal quotation marks omitted). And
finally, based on the nature of the records and the sensitive
and highly personal information contained therein, the court
ruled that “there are no alternatives to closure to protect that
compelling interest.” Id.
Brice contends that the District Court should have
redacted sensitive information from the documents as an
alternative to closure. But the District Court made an explicit
7
finding that no alternative to closure would suffice to protect
the sensitive and intensely personal information at issue here.
Brice, Nos. 05-405 & 05-406, slip ops. at 4 (orders denying
motions to unseal). To support that conclusion, the District
Court explained that the proceedings contained “substantial
amounts of material of an especially personal and private
nature relating to the medical, educational, and mental health
progress of both minors.” Id. at 2. The court added: “The
material witness proceedings contain intensely private and
painful information about both girls’ medical and mental
health issues . . . .” Id. at 4. Moreover, Brice knew the actual
names of the victims referred to only by initials in the District
Court. Therefore, Brice (and potentially the public) would be
able to connect the sensitive personal information to specific
individuals. Releasing any of the information would therefore
entail a grotesque invasion of the victims’ privacy. In light of
the District Court’s description of the nature of the documents
at issue in this case, and given that the defendant knew the
identities of the victims in question, redaction was not a
viable option here.
Brice also separately contends that the records could have
been unsealed only for his counsel and not for the public at
large. But the First Amendment right of access he asserts is a
right of access for the public. Under the asserted First
Amendment right of access, there is no precedent for
disclosing material only to a defense counsel.
In sum, the District Court appropriately applied the
Washington Post test in denying Brice access to the material
witness proceedings. 2
2
This Court has not indicated the proper standard for appellate
review of a district court’s application of the Washington Post
standard. We need not decide that question here because even
8
III
Brice also advances statutory, Sixth Amendment, and
common law arguments in his effort to open the records of the
material witness proceedings. None is remotely persuasive.
Brice raises a statutory argument under 18 U.S.C.
§ 3509(d). 3 By its terms, however, § 3509(d) is not an
affirmative disclosure statute but rather forbids disclosure of
applying a de novo standard, we affirm the District Court’s
decision.
3
18 U.S.C. § 3509(d) provides, in relevant part:
(2) FILING UNDER SEAL.–All papers to be filed in court that
disclose the name of or any other information concerning a
child shall be filed under seal without necessity of obtaining a
court order. The person who makes the filing shall submit to
the clerk of the court–
(A) the complete paper to be kept under seal; and
(B) the paper with the portions of it that disclose the name of
or other information concerning a child redacted, to be placed
in the public record.
...
(4) DISCLOSURE OF INFORMATION.–This subsection does not
prohibit disclosure of the name of or other information
concerning a child to the defendant, the attorney for the
defendant, a multidisciplinary child abuse team, a guardian ad
litem, or an adult attendant, or to anyone to whom, in the
opinion of the court, disclosure is necessary to the welfare and
well-being of the child.
9
sensitive information. The statute therefore does not afford a
right of access to these proceedings. Not surprisingly given
the statutory text, Brice cites no precedent that actually
supports his § 3509(d) argument. In light of the text and
precedent, we reject Brice’s § 3509 contention.
Brice raises a Sixth Amendment issue, but he failed to
raise that argument in the District Court. We therefore review
that contention only for plain error. FED. R. CRIM. P. 52(b);
United States v. Olano, 507 U.S. 725, 732-35 (1993). On
plain error review, we may reverse the District Court only if
there is “an error that is plain and that affects substantial
rights,” and “the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Olano, 507
U.S. at 732 (internal quotation marks and alterations omitted).
Brice cannot satisfy this standard for his Sixth Amendment
claim. By its terms, the Sixth Amendment guarantees a
public trial. U.S. CONST. amend. VI. No case has said that
the Sixth Amendment gives a right of public access to
material witness proceedings. We thus find no plain error
with respect to his Sixth Amendment claim.
Brice’s assertion of a common-law right of access to
these records is also unavailing. The decision whether to seal
a judicial proceeding under the common-law standard is “left
to the sound discretion of the trial court, a discretion to be
exercised in light of the relevant facts and circumstances of
the particular case.” Nixon v. Warner Communications, Inc.,
435 U.S. 589, 599 (1978). For reasons discussed in the First
Amendment analysis above, the District Court in this case did
not abuse its discretion in sealing the records of the material
witness proceedings.
10
***
We affirm the orders of the District Court.
So ordered.