                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 6 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10059

                Plaintiff-Appellee,             D.C. No. 12-cr-375-TLN

 v.                                             MEMORANDUM*

KENNETH PARKS, ET AL.,

                Defendants,

KYN NAOPE,

                Appellant-Movant.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Troy L. Nunley, District Judge, Presiding

                              Submitted July 16, 2019**
                              San Francisco, California

Before: PAEZ and RAWLINSON, Circuit Judges, and HUCK,*** District Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
                                  I.    Background

       Appellant, Kyn Naope, was sentenced to 60 months imprisonment and

ordered to pay restitution stemming from a scheme to fraudulently collect

unemployment benefits from the State of California Employment Development

Department. In pursuing his sentencing appeal, based on a claim of ineffective

assistance of counsel, Naope discovered several sealed filings in a related case,

United States v. Parks, 2:12-cr-375 TLN. Without seeking to intervene, Naope

requested that the district court presiding over Parks allow him access to the sealed

filings to determine whether they contained exculpatory material that could assist

him in his sentencing appeal. Alternatively, Naope requested that the district court

review the filings in camera to make the same determination. The district court

denied Naope’s request as he was not a party to the case. Naope now appeals the

district court’s denial.

                                II.    DISCUSSION


       Naope does not have standing to appeal the district court’s order. See Citibank

Int’l v. Collier-Traino, Inc., 809 F.2d 1438, 1441 (9th Cir. 1987) (citing Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534 (1986)). “[O]nly a properly named party

may initiate an appeal.” Id. “In this circuit, a nonparty to the litigation on the merits

will have standing to appeal the decision only in exceptional circumstances when:




                                           2                                     18-10059
(1) the party participated in the proceedings below; and (2) the equities favor hearing

the appeal.” Id.; United States v. Badger, 930 F.2d 754, 756 (9th Cir. 1991).

      There is no question that Naope was not a named party in Parks. Naope did

not seek to intervene in Parks and is properly considered a non-party in light of this

Court and the Supreme Court’s precedent. The non-party exception does not apply

to Naope because he did not participate in Parks beyond filing a self-interested

request to access the sealed filings without seeking to intervene and because the

equities do not weigh in favor of hearing his appeal.

      1. Participation

      Naope did not participate in the proceedings below such that he should be

entitled to appeal the district court’s order denying his request. Naope merely filed

a request to access sealed documents. Filing such a request is not the sort of

“participation” this Court contemplated in establishing the exception allowing a non-

party to appeal an order. In fact, this Court has only allowed a non-party’s appeal

where the party has participated in the case below in some meaningful way. See

Citibank, 809 F.2d at 1441 (citing SEC v. Wencke, 783 F.2d 829, 834–35 (9th Cir.

1986)). In Citibank, this Court held that a non-party did not participate in the

proceedings below because the non-party had only filed a post-judgment motion to

vacate. Similarly, Naope only filed a single self-interested motion to access sealed




                                          3                                     18-10059
filings. Naope’s limited filing does not rise to the level of meaningful participation

required to have standing to appeal.

      2. Equities

      Furthermore, the equities do not weigh in favor of hearing Naope’s appeal.

An appeal here is not the most expeditious way for Naope to obtain potentially

exculpatory information. See Badger, 930 F.2d at 756. Naope may and should have

requested the district court in his case to compel the Government to produce any

exculpatory information, including any in the sealed filings in Parks. If the district

court denied Naope’s motion, he could have appealed that denial. Seeking an order

compelling the Government to produce exculpatory information in his own case is

the most expeditious way for Naope to achieve his goal. For this same reason,

denying this appeal is not unjust because Naope has an alternative (and more

procedurally proper) way to seek the information he desires. Additionally, the

district court certainly did not hail Naope into Parks such that it would be unfair not

to allow Naope to appeal the order.

      In sum, Naope does not have standing to appeal the Parks order denying his

request to access sealed documents because Naope is a non-party to the case who

did not meaningfully participate, or seek to intervene, in the proceedings below and

because the equities do not weigh in favor of hearing his appeal.




                                          4                                    18-10059
                        III.   CONCLUSION


For the reasons above, this appeal is dismissed.




                                   5               18-10059
