                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit Rule 206
                              File Name: 09a0247p.06

             UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                             _________________


                                              X
                                 Petitioners. -
 In re LESTER EUGENE SILER; JENNY SILER,
                                               -
 ____________________________________          -
                                               -
                                                       Nos. 08-5215/5280/

                                               ,
                                                       5364/5366/5367
                                                >
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,

                                               -
                                               -
                                               -
            v.
                                               -
                                               -
                                               -
 SHAYNE GREEN; WILLIAM CARROLL;
                                               -
 SAMUEL R. FRANKLIN; GERALD DAVID
                                               -
 WEBBER,
                                Defendants, -
                                               -
                                               -
                         Movant-Appellant. -
 JENNY SILER,
                                              N
                    Appeal from the United States District Court
                 for the Eastern District of Tennessee at Knoxville.
            Nos. 05-00011; 05-00012; 05-00013; 05-00014; 05-00015—
                         Thomas A. Varlan, District Judge.
                             Argued: March 12, 2009
                        Decided and Filed: July 13, 2009
        Before: DAUGHTREY, ROGERS, and KETHLEDGE, Circuit Judges.

                              _________________

                                   COUNSEL
ARGUED: Herbert Sanford Moncier, LAW OFFICES OF HERBERT S. MONCIER,
Knoxville, Tennessee, for Petitioners. Debra A. Breneman, ASSISTANT UNITED
STATES ATTORNEY, Knoxville, Tennessee, for Appellee. ON BRIEF: Herbert Sanford
Moncier, LAW OFFICES OF HERBERT S. MONCIER, Knoxville, Tennessee, for
Appellant. Debra A. Breneman, Charles E. Atchley, Jr., ASSISTANT UNITED STATES
ATTORNEYS, Knoxville, Tennessee, for Appellee.




                                        1
Nos. 08-5215/5280/5364/5366/5367                In re Siler, et al.                      Page 2


                                      _________________

                                           OPINION
                                      _________________

           ROGERS, Circuit Judge. This appeal arises in the context of the defendants’
criminal trial, although the issue now before us is unrelated to the merits of the
Government’s case against the defendants. Petitioners Lester and Jenny Siler sought access
to the defendants’ Presentence Reports (PSRs). The defendants were Campbell County law
enforcement officers who violated Lester Siler’s constitutional rights while arresting him.
The defendants pled guilty to federal charges for their actions, and the Silers subsequently
sued them for civil damages. Following discovery in the civil case, the Silers moved the
district court in each of the defendants’ criminal cases to release the defendants’ PSRs to
them. The district court denied the motions, correctly we conclude. There is no apparent
authority for the release of such documents in this context. But even if the district court did
have authority to entertain the Silers’ motions, it did not abuse its discretion in denying the
Silers’ motions because PSRs are confidential, nonpublic documents, and the Silers did not
show that they had a special need to have access to them.

           The events underlying the criminal case arose when the defendants, former law
enforcement officers Shayne Green, Samuel Franklin, Gerald David Webber, Jr., and
William Carroll, along with former officer Joshua Monday, went to the Silers’ home to arrest
Lester Siler. The officers agreed to use threats and force to obtain Siler’s consent to search
his home. After Siler answered the door, the officers handcuffed Siler outside his house and
brought him inside, where they instructed Siler’s wife and child to leave the home. The
officers threatened to beat, kill, and maim Siler if he did not consent to a search. The officers
attempted to force Siler’s head into an overflowing toilet and beat Siler using various
objects. Following this incident, the officers lied to authorities in order to conceal their
actions.

           The officers were subsequently indicted for conspiracy to violate civil rights under
the color of law, in violation of 18 U.S.C. § 241. Each officer pled guilty pursuant to a plea
agreement with the government and received between 51 and 57 months in prison. The four
defendants were also ordered to pay $2,500 each in restitution to Siler, totaling $10,000.
Nos. 08-5215/5280/5364/5366/5367                   In re Siler, et al.                          Page 3


            Eighteen months later, Siler, along with his wife and child, brought a civil suit
against the five officers, the Campbell County Sheriff, and Campbell County in the U.S.
District Court for the Eastern District of Tennessee. Complaint, Siler v. Webber, et al., No.
3:05-cv-00341 (E.D. Tenn. Jul. 7, 2005). Siler alleged violations of his constitutional rights
under 42 U.S.C. §§ 1983 and 1988, and numerous state law claims. Id. ¶¶ 45-131. The
discovery process in the case was plagued with various problems, including attempts to settle
the suit, insufficient funds for discovery, attorney illness, and attorney inexperience. As a
result no discovery was accomplished. Siler v. Webber, et al., No. 3:05-cv-00341, slip op.
at 2 (E.D. Tenn. Feb. 12, 2008). The Silers’ replacement counsel moved for an extension
of the time for discovery, but the district court denied the extension for lack of good cause.
Id. at 4.

            The Silers then attempted another route to obtain evidence for the civil suit by filing
motions in each of the four defendants’ criminal suits to unseal or release the defendants’
        1
PSRs.           The Silers argued that the Crime Victims’ Rights Act (CVRA), 18 U.S.C.
§ 3771, and the Eastern District of Tennessee’s Local Rule 26.2 supported the release
of the defendants’ PSRs. The district court denied the Silers’ motion as to each of the
defendants, reasoning that PSRs are generally not available to third parties and that the
Silers had not demonstrated a special need for their release. The court determined that
the CVRA did not confer a general right to obtain PSRs and, therefore, that the court had
discretion to deny the motions. See United States v. Green, No. 3:05-CR-00011 (E.D.
Tenn. Jan. 30, 2008); United States v. Carroll, No. 3:05-CR-00012 (E.D. Tenn. Jan. 30,
2008); United States v. Franklin, No. 3:05-CR-00013 (E.D. Tenn. Jan. 30, 2008); United
States v. Webber, No. 3:05-CR-00014 (E.D. Tenn. Jan. 30, 2008).

            The Silers now appeal the district court’s orders and, as an alternative form of
relief, petition this court for a writ of mandamus, under both the CVRA, 18 U.S.C.
§ 3771(d)(3), and 28 U.S.C. § 1651. The appeals and the request for mandamus relief
were consolidated for our review.


            1
           The Silers neglected to file a motion for the release of Monday’s PSR. Therefore, Monday is
not covered by this appeal, although the Silers indicate an intent to ask for Monday’s PSR if successful
in this appeal.
Nos. 08-5215/5280/5364/5366/5367              In re Siler, et al.                       Page 4


        First, the Silers may pursue this appeal although they were not technically parties
below. The general rule, of course, is that “one who is not a party or has not been treated
as a party to a judgment has no right to appeal therefrom.” Karcher v. May, 484 U.S. 72,
77 (1987). However, although the Silers did not formally intervene and become parties,
the district court effectively treated the Silers like intervening parties and decided the
merits of their motions. As Judge Hand explained long ago:

        [I]t is indeed well settled that generally speaking no person, not a party
        to a suit, may appeal. The reason for this is that if not a party, the
        putative appellant is not concluded by the decree, and is not therefore
        aggrieved by it. But if the decree affects his interests, he is often allowed
        to appeal.
West v. Radio-Keith-Orpheum Corp., 70 F.2d 621, 623-24 (2d Cir. 1934) (citations
omitted). The Silers were obviously aggrieved by the denials of their motions. We have
cited with approval cases from other circuits “holding that appeals may be taken by non-
parties who were treated on all sides as de facto parties but who never formally
intervened.” City of Cleveland v. Ohio, 508 F.3d 827, 837 (6th Cir. 2007). As the Fifth
Circuit explained in a case fairly analogous to the Silers’, “[A] nonparty [may] appeal
the denial of its motion for permission to inspect and copy progress reports and programs
sealed under a protective order.” In re Beef Indus. Antitrust Litig., 589 F.2d 786, 788-89
(5th Cir. 1979).

        We recognize that the Ninth Circuit has refused to allow non-party newspapers
to appeal criminal court closure orders, requiring instead that appellate review be sought
via mandamus. See, e.g., United States v. Brooklier, 685 F.2d 1162, 1165 (9th Cir.
1982); United States v. Sherman, 581 F.2d 1358, 1360-61 (9th Cir. 1978). But the Ninth
Circuit itself recognizes that its practice is more conservative in this regard than that of
the Third, Fifth, and District of Columbia Circuits. Brooklier, 685 F.2d at 1165 (citing
United States v. Criden, 675 F.2d 550, 552 (3d Cir. 1982); Belo Broad. Corp. v. Clark,
654 F.2d 423, 425-26 (5th Cir. 1981); United States v. Hubbard, 650 F.2d 293, 309
(D.C. Cir. 1980)); see also United States v. Schiavo, 504 F.2d 1 (3d Cir. 1974) (en banc).
See generally United States v. Chagra, 701 F.2d 354, 359-60 (5th Cir. 1983) (discussing
precedent among the circuits). The reasoning of those cases from the Third, Fifth, and
Nos. 08-5215/5280/5364/5366/5367              In re Siler, et al.                     Page 5


District of Columbia Circuits is more persuasive. This court thus has appellate
jurisdiction under 28 U.S.C. §1291 over the final orders of the district court denying
access to the requested PSRs.

        Turning to the merits, it is questionable in the first place whether the district
court had any authority to release the PSRs. The Silers’ requests do not fall under the
district court’s authority under the CVRA. The CVRA provides the district court with
authority to protect the victim’s limited right to participate in the criminal trial process.
18 U.S.C. § 3771(a); Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1016 (9th Cir. 2006).
Under the Act, victims can intervene in the district court to enforce their rights.
§ 3771(d)(3). However, because the criminal trials at issue are long over, the Silers’
attempted interventions and subsequent requests fall outside of the scope of protection
provided by the CVRA.

        It is also not clear that the district court, as the criminal trial court, retained
authority to release the PSRs. Compare United States v. Moussaoui, 483 F.3d 220, 236-
37 (4th Cir. 2007) (holding the district court to be without authority to entertain the
victims’ motion to release confidential government documents used in the criminal
case), with United States v. Gomez, 323 F.3d 1305, 1307 n.3 (11th Cir. 2003) (“The
district court’s discretionary authority over the release of [PSR] material has been
analogized to the standards governing the release of grand jury material.”). Although
a district court’s inherent authority allows it to manage documents in its custody, PSRs
are not such documents because they are released to the court for the limited purpose of
sentencing, but are otherwise in the custody of the U.S. Probation Office, which creates
the PSRs. In this regard, PSRs are not similar to grand jury transcripts, requests for
which must be directed toward “the court that supervised the grand jury, as it is the only
court with control over the transcripts.” Douglas Oil Co. v. Petrol Stops Nw., 441 U.S.
211, 225 (1979). In contrast, PSRs are “materials that the Government possesses, and
that may be obtained . . . through the normal course of third-party civil discovery,”
Moussaoui, 483 F.3d at 236, or by filing a request under the Freedom of Information
Act, see, e.g., United States v. Julian, 486 U.S. 1, 11-12 (1988). Thus, because the
Nos. 08-5215/5280/5364/5366/5367             In re Siler, et al.                     Page 6


district court in this case was not the custodian of the PSRs, it did not have the authority
to entertain motions to unseal or release the PSRs.

        Moreover, to the extent that some courts exercising criminal jurisdiction have
given third parties—mainly the press—access to PSRs in limited circumstances, those
requests for the documents were usually made contemporaneously. See Gomez, 323
F.3d at 1306-07 (request when sentencing was pending); United States v. Dare, 568 F.
Supp. 2d 242, 243 (N.D.N.Y. 2008) (intervening before sentencing); United States v.
Loeper, 132 F. Supp. 2d 337, 338 (E.D. Pa. 2001) (intervening after sentencing but
before entry of judgment). In contrast, the Silers’ requests came more than two years
after the criminal cases were closed.

        But even if the district court did have the power to order the release of the PSRs,
the court did not abuse its discretion by denying the Silers’ requests. First, the CVRA
does not provide an independent right to obtain PSRs and, therefore, did not require the
disclosure of the PSRs in this case. The statute provides victims with rights associated
with the defendant’s trial, such as notice of proceedings against the defendant, the right
to be heard at a proceeding, and the right to confer with the government’s attorney.
18 U.S.C. § 3771(a). The statute does not refer to documents offered during the
defendant’s trial. Id. Furthermore, the legislative history of the bill indicates that
Congress was concerned only with the victim’s right to take part in the criminal trial.
See, e.g., 150 Cong. Rec. S4260, 4262-63 (2004). Moreover, we know of no other court
that has considered the issue and has found that the CVRA encompasses a right of access
to PSRs. See, e.g., In re Brock, 262 F. App’x 510, 512 (4th Cir. 2008); In re Kenna, 453
F.3d 1136, 1137 (9th Cir. 2006).

        Even if the CVRA could be read to encompass a right of access to PSRs, it would
not apply to requests like the Silers’. It has been argued that the CVRA encompasses
a general right of victims to “participate in federal criminal proceedings,” which could
support access to PSRs in order to help the victim prepare to testify at trial. See In re
Brock, 262 F. App’x at 511-12 (rejecting this argument); United States v. Coxton, 598
F. Supp. 2d 737, 739-40 (W.D.N.C. 2009) (citation omitted) (same). In this case,
Nos. 08-5215/5280/5364/5366/5367                     In re Siler, et al.                           Page 7


however, the Silers do not seek access in order to participate in the trial
proceedings—the criminal proceedings in this case are long over. As the Fourth Circuit
stated, “The rights codified by the CVRA . . . are limited to the criminal justice process;
the Act is . . . silent and unconcerned with victims’ rights to file civil claims against their
assailants.” Moussaoui, 483 F.3d at 234-35. Hence, the Silers’ requests are clearly
outside the scope of the CVRA.

         Second, the common law right of access to court records does not cover the
defendants’ PSRs. The scope of any such common law right is left to the “sound
discretion of the trial court.” See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599
(1978). In practice, PSRs are not treated as public records within the judicial system, but
are handled and marked as “confidential reports.” United States v. Martinello, 556 F.2d
1215, 1216 (5th Cir. 1977); see also United States v. McKnight, 771 F.2d 388, 390 (8th
Cir. 1985). Fed. R. Crim. P. 32(e)(2) authorizes the release of a PSR to the defendant,
the defendant’s attorney, the government’s attorney, and the court, implying that those
are the only parties with access, and courts have accordingly declined to extend access
beyond these limits. See Julian, 486 U.S. at 12. Contrary to the Silers’ contentions,
courts have given reasons why PSRs are not subject to a common law presumption of
court openness. For instance, the Supreme Court in Julian noted that disclosure would
have “a chilling effect on the willingness of various individuals to contribute
information” and recognized “the need to protect the confidentiality of the information
contained in the report.” 486 U.S. at 12; see also United States v. Huckaby, 43 F.3d 135,
138 (5th Cir. 1995); United States v. Corbitt, 879 F.2d 224, 232 (7th Cir. 1989); United
States v. Greathouse, 484 F.2d 805, 807 (7th Cir. 1973).2

         Because PSRs are not public documents, the district court’s local rules in this
case do not provide for access to the defendants’ PSRs. The Eastern District of


         2
          The district court’s decision did not need to be narrowly tailored under Press-Enterprise Co. v.
Superior Court, 464 U.S. 501, 510 (1984) and Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607
(1982). Those cases involved the right to attend criminal trials, in order to provide “community therapeutic
value” and enhance “public confidence in the system.” Press-Enter., 464 U.S. at 508-09. The obvious
differences between the ability to attend open court and post-trial access to confidential documents render
the applicability of the “narrow tailoring” requirement questionable.
Nos. 08-5215/5280/5364/5366/5367             In re Siler, et al.                   Page 8


Tennessee’s Local Rule 26.2 provides that all papers filed with the court become part
of the record unless stated otherwise by “statute, rule or order.” The PSRs in this case
were never filed with the court, and so Local Rule 26.2 by its terms does not apply to
them. Because the Rule does not sweep the PSRs into its purview, its procedures for the
sealing and unsealing of public documents are inapplicable.

       Moreover, the district court did not abuse its discretion in finding that there was
not the required “special need” for the release of these nonpublic documents. Julian,
486 U.S. at 12. The district court found that the Silers needed the PSRs only because
they failed adequately to complete discovery in their civil litigation. United States v.
Green, No. 3:05-CR-00011, slip op. at 3 (E.D. Tenn. Jan. 30, 2008). However, when
“virtually everything in the presentence report [was] available from other sources,” id.
(citing Beller v. United States, 221 F.R.D. 674, 678 (D.N.M. 2003)), there is no special
need for access. See United States v. Spotted Elk, 548 F.3d 641, 672 (8th Cir. 2008).
The district court considered the concerns associated with releasing PSRs, and
reasonably weighed the Silers’ need against the need to keep PSRs confidential. United
States v. Green, No. 3:05-CR-00011, slip op. at 3 (E.D. Tenn. Jan. 30, 2008). The
district court found that the balance was tipped in favor of keeping the documents
confidential, and the result is not abuse of discretion.

       Because the district court properly denied the Silers’ motions, we deny the Silers’
alternative mandamus petition as well.

       The district court’s orders are affirmed and the petition for mandamus is denied.
