                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 15-4539


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

UNDER SEAL,

                    Defendant - Appellant.



                                      No. 15-4569


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

UNDER SEAL,

                    Party-in-Interest – Appellant,

             and

PEDRO ANTHONY ROMERO CRUZ, a/k/a Payaso; JOSE LOPEZ TORRES,
a/k/a Peluca, a/k/a Medio Polvo, a/k/a Peluquin, a/k/a Jose Alejandro Donez, a/k/a
Lopez Manuel Torres; JAIME ROSALES VILLEGAS, a/k/a Demente, a/k/a Lil
Demente; ALVIN GAITAN BENITEZ, a/k/a Pesadilla, a/k/a Lil Pesadilla, a/k/a
Lil Tuner, a/k/a Tooner, a/k/a Lil Tunnel; CHRISTIAN LEMUS CERNA, a/k/a
Leopardo, a/k/a Bago, a/k/a Vago, a/k/a Gatito, a/k/a Christian Josue Lemus
Alfaro; OMAR DEJESUS CASTILLO, a/k/a Lil Payaso, a/k/a Lil Slow;
DOUGLAS DURAN CERRITOS, a/k/a Lil Poison, a/k/a Guason, a/k/a Lunche,
a/k/a Guadalupe; MANUEL ERNESTO PAIZ GUEVARA, a/k/a Solitario, a/k/a
Colita; JOSE DEL CID, a/k/a Duende; JESUS ALEJANDRO CHAVEZ, a/k/a
Chuy; JUAN CARLOS MARQUEZ AYALA, a/k/a Skinny; ARAELY
SANTIAGO VILLANUEVA, a/k/a Slow, a/k/a Lil Slow, a/k/a Spider; GENARO
SEN GARCIA, a/k/a Gatuso,

                    Defendants.



Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Gerald Bruce Lee, District Judge. (1:14-cr-00349-GBL-1; 1:14-cr-00306-
GBL-1)
                                _______________

Argued: December 7, 2016                                        Decided: April 5, 2017


Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.


Affirmed in part, dismissed in part, vacated in part, and remanded with instructions by
published opinion. Judge Floyd wrote the majority opinion, in which Judge Wilkinson
joined. Judge Motz wrote a separate opinion concurring in part and concurring in the
judgment.


ARGUED: Carmen D. Hernandez, Highland, Maryland, for Appellant. Christopher John
Catizone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Vernida R. Chaney, CHANEY LAW FIRM PLLC, Fairfax,
Virginia, for Appellant. Dana J. Boente, United States Attorney, Heather Alpino, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.




                                           2
FLOYD, Circuit Judge:

       Appellant, a juvenile during all relevant events in this case, appeals two sets of

decisions relating to his juvenile prosecution. 1     First, Appellant appeals the district

court’s decision to grant the federal government’s motion to dismiss the information filed

against him in a juvenile delinquency proceeding without prejudice, and its decision to

deny Appellant’s motion to dismiss the information with prejudice. Second, Appellant

appeals the district court’s decision to authorize the federal government to disclose two

confidential documents and Appellant’s identity to third-parties, contending that the

disclosed information should have been kept private.

       For the reasons that follow, we dismiss as interlocutory the appeal over the

dismissal of the information without prejudice and the denial of Appellant’s motion for

dismissal with prejudice.     However, we affirm the district court’s authorization of

disclosure of the aforementioned confidential documents. Finally, because we believe

that the controversy surrounding the disclosure of Appellant’s identity is moot on appeal,

we vacate the district court’s decision to authorize disclosure of that information.


                                             I.

                                             A.

       On October 7, 2013, Nelson Omar Quintanilla Trujillo—a member of the MS-13

gang—was murdered in Fairfax County, Virginia, by several of his MS-13 associates.


       1
        Federal law prohibits the public release of a juvenile’s name in connection with
these proceedings. 18 U.S.C. § 5038(e). Thus, we use the designation “Appellant”
throughout this opinion.

                                             3
Subsequently, a grand jury in the Eastern District of Virginia returned an indictment

against multiple adult MS-13 members (the “Adult Defendants”) for taking part in

Trujillo’s murder.     The prosecution of some of these individuals (the “Adult

Prosecution”) remains ongoing. The Adult Prosecution was assigned docket number

1:14-CR-306, and was assigned to the Honorable Gerald Bruce Lee.

       Appellant was an MS-13 gang member who took part in Trujillo’s murder, but

was only sixteen years old at the time the murder took place. On October 16, 2014, the

federal government filed under seal a juvenile delinquency information against Appellant

in connection with his role in Trujillo’s murder (the “Juvenile Prosecution”).          In

accordance with the jurisdictional requirements of the Juvenile Justice and Delinquency

Prevention Act of 1974 (the “JJDPA”), Pub. L. No. 93-415, 88 Stat. 1109, codified as

amended in relevant part at 18 U.S.C. § 5032, the information was accompanied by the

federal government’s certification that Appellant’s case was a felony “crime of violence”

implicating a “substantial Federal interest,” and that Virginia prosecutors had declined to

exercise their jurisdiction over Appellant. J.A. 104–05.

       Appellant was detained the same day that the information against him was filed.

The Juvenile Prosecution was assigned its own docket number, 1:14-CR-349, and was

also assigned to the Honorable Gerald Bruce Lee.

       On October 16, 2014, the federal government filed a motion pursuant to § 5032 to

transfer Appellant for prosecution as an adult for murder in aid of racketeering, in

violation of 18 U.S.C. § 1959(a)(1). To decide whether to transfer the case, the district

court held a hearing that addressed the six statutory factors relevant to the transfer

                                            4
decision under § 5032. On April 21, 2015, the district court issued an order denying

transfer. On April 24, 2015, the federal government filed an interlocutory appeal of the

district court’s order denying transfer.

       On July 14, 2015, Appellant’s attorney attended a meeting with federal and state

prosecutors.   During the meeting, the federal prosecutors indicated that the federal

government had decided to defer to the Fairfax County Commonwealth Attorney’s Office

in the prosecution of Appellant.           Accordingly, the federal prosecutors informed

Appellant’s counsel that they intended to dismiss the federal government’s interlocutory

appeal and then move to voluntarily dismiss Appellant’s information in the district court.

During the meeting, state prosecutors indicated that they would proceed against

Appellant in state court following the completion of the federal government’s Adult

Prosecution.    State prosecutors also presented plea offers to Appellant’s attorney

requiring Appellant to plead to an adult murder charge, although those offers were never

accepted.

       On July 16, 2015, the federal government moved to voluntarily dismiss the

interlocutory appeal of the denial of transfer. On August 11, 2015, this Court granted the

federal government’s motion to dismiss.

       On August 17, 2015, the federal government moved to voluntarily dismiss

Appellant’s information pursuant to Rule 48(a) of the Federal Rules of Criminal

Procedure, which provides that “[t]he government may, with leave of court, dismiss an

indictment, information, or complaint.” On August 18, 2015, the district court responded



                                               5
by dismissing the information without prejudice. Later that day, Appellant filed a request

for a hearing regarding dismissal, which the district court immediately denied.

       On September 1, 2015, Appellant filed a motion entitled “Defendant’s Motion for

Reconsideration or in the Alternative Objections to the United States’ Motion to Dismiss

Pursuant to Federal Rule of Criminal Procedure 48(a) and the Court’s Order Granting the

Dismissal.” J.A. 704. In that motion, Appellant objected to dismissal of the information

without prejudice, on the grounds that such a dismissal was part of an improper effort by

the federal government to circumvent the JJDPA by using state prosecutors as a proxy to

pursue adult charges. Additionally, Appellant sought dismissal of the information with

prejudice, citing a violation of his “right to a speedy trial pursuant to 18 U.S.C. [§] 5036.”

J.A. 710. The district court denied Appellant’s motion on September 3, 2015.

       Upon dismissal of the information, Appellant was released to the custody of

immigration authorities. Appellant has since been deported to his native country, El

Salvador; however, he remains subject to prosecution in the United States in connection

with his role in Trujillo’s murder.


                                             B.

       The federal government requested authorization from the district court to disclose

three pieces of information to the attorneys for the Adult Defendants (the “Adult Defense

Attorneys”). Although these items were subject to confidentiality protections under 18

U.S.C. § 5038, the federal government nonetheless requested disclosure authorization in




                                              6
order to fulfill what it perceived to be potential Brady 2 obligations. The items at issue

included:

      1) The portion of Appellant’s testimony from the transfer hearing (the “Transfer

            Transcript”) related to gang activity in the United States and the murder of

            Trujillo.    The original transcript was approximately sixty-five pages long;

            however, to avoid disclosing personal or extraneous information, the federal

            government only sought disclosure of approximately twenty-four pages of the

            testimony.

      2) An FBI investigative report (the “Investigative Report”) containing statements

            about Trujillo’s murder made by Appellant in an interview with the FBI. The

            report was approximately five pages long, with approximately one page of

            redactions.

      3) Appellant’s identity (which had been redacted from the transcript and report).

      The federal government began by requesting—in the case number for the Adult

Prosecution—authorization to disclose the Transfer Transcript and the Investigative

Report to the Adult Defense Attorneys. The federal government also filed—in the case

number for the Juvenile Prosecution—a notice of a request for authorization to disclose

the same documents to the Adult Defense Attorneys.            In that notice, the federal

government identified the Transfer Transcript and the Investigative Report as “potentially


      2
        See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression by
the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment”).

                                              7
Brady material.” J.A. 698. The federal government acknowledged that the MS-13 gang

had issued a “death threat” against Appellant following his abandonment of the gang.

J.A. 698.   In response, the federal government proposed seven protective measures

designed to prevent any unauthorized disclosure or dissemination.

       The notice added that the Transfer Transcript and the Investigative Report needed

to be disclosed immediately, because the documents would help the Adult Defense

Attorneys determine whether they should obtain a material witness warrant for Appellant,

who was at risk of being deported at the time. The federal government noted that if

Appellant invoked his Fifth Amendment privilege against self-incrimination, it would

consider asking the district court to excuse it from disclosing the Transfer Transcript and

the Investigative Report, because it refused to offer Appellant testimonial immunity and

“a material witness warrant would be futile” against a silent Appellant. J.A. 699.

       In the Juvenile Prosecution case number, Appellant filed an opposition to the

federal government’s request to disclose the Transfer Transcript and the Investigative

Report, arguing that the request was improper, overbroad, and detrimental to Appellant’s

safety. However, Appellant’s opposition papers failed to indicate that he intended to

invoke his privilege against self-incrimination.

       On September 2, 2015, the district court issued a pair of protective orders in the

Adult Prosecution case number—one authorizing the disclosure of the Transfer

Transcript, and the other authorizing the disclosure of the Investigative Report. Both

protective orders contained the federal government’s requested protective measures. One

such protective measure was the following provision: “The [Adult Defense] [A]ttorneys

                                             8
may discuss the substance of the [Transfer Transcript and the Investigative Report] with

their client, but they shall not provide the client with direct access to the document[s]

. . . .” J.A. 725, 727. On September 3, 2015, the district court approved the federal

government’s disclosure request, in an order issued in the Juvenile Prosecution case

number.

       Subsequently, the Adult Defense Attorneys expressed their desire to apply for a

material witness warrant for Appellant. The federal government responded by moving in

the Adult Prosecution case number for authorization to disclose Appellant’s identity to

the Adult Defense Attorneys, so as to allow them to apply for a warrant.

       The federal government also filed in the Juvenile Prosecution case number a

notice of a request for authorization to disclose Appellant’s identity to the Adult Defense

Attorneys. Again, this notice was accompanied by a request for protective measures.

       Appellant filed a motion seeking to prohibit the disclosure of his identity.

Appellant also filed a separate document, containing a hearing request and Appellant’s

assertion of his privilege against self-incrimination.   Both filings were made in the

Juvenile Prosecution case number.

      The district court held a hearing in the Juvenile Prosecution case number on

September 9, 2015, to help it decide whether to disclose Appellant’s identity. There, the

district court queried the federal government about its security measures. Additionally,

Appellant’s attorney explained that Appellant intended to invoke his Fifth Amendment

privilege, and the district court acknowledged that it “believe[d] he w[ould].” J.A. 774.

During the hearing, Appellant’s attorney also requested that, if the district court was

                                            9
inclined to authorize disclosure, it at least stay any disclosure to give Appellant an

opportunity for appeal.

       On September 9, 2015, the district court in the Adult Prosecution case number

issued a protective order authorizing disclosure of Appellant’s identity exclusively to the

Adult Defense Attorneys to facilitate their application for a material witness warrant.

This protective order contained the government’s requested protective measures. One

such measure was a provision ordering the Adult Defense Attorneys to refrain from

disclosing Appellant’s identity to their clients until (i) the court scheduled a material

witness deposition with Appellant; (ii) 30 days before trial if Appellant remained

detained by the district court; or (iii) the attorneys were “otherwise ordered by the court.”

J.A. 782–83. On September 10, 2015, the district court in the Juvenile Prosecution case

number issued an order denying Appellant’s motion to prohibit disclosure of his identity.

The district court declined to stay any disclosure.

       On September 1, 2015, before the district court had authorized any disclosures,

Appellant noted an appeal of the dismissal of the information without prejudice. On

September 16, 2015, once the various disclosures had been authorized, Appellant noted a

separate appeal of the protective orders that were issued in the Adult Prosecution case

number (collectively, the “Adult Protective Orders”). On September 17, 2015, Appellant

noted a third appeal of the disclosure-related orders that were issued in the Juvenile

Prosecution case number (collectively, the “Juvenile Disclosure Orders”), as well as the

order denying Appellant’s request for dismissal with prejudice in lieu of dismissal

without prejudice.

                                             10
                                            II.

       In his opening brief, Appellant summarily asserts that this Court has subject-

matter jurisdiction in this case pursuant to 28 U.S.C. § 1291. The problem with this

assertion—which was not rebutted by the federal government—is that it fails to address

the fact that Appellant’s appeals all take place in the absence of any final judgment.

Because “[p]iecemeal or interlocutory appeals are disfavored,” United States v.

Lawrence, 201 F.3d 536, 537 (4th Cir. 2000), and because “we are obliged to satisfy

ourselves of subject-matter jurisdiction, even where the parties concede it,” United States

v. Urutyan, 564 F.3d 679, 684 (4th Cir. 2009), we begin our analysis by addressing

whether we have subject-matter jurisdiction in this case.

       At the outset, we recognize that “Section 1291 of the Judicial Code confers on

federal courts of appeals jurisdiction to review ‘final decisions of the district courts.’”

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009) (quoting 28 U.S.C. § 1291).

“Although ‘final decisions’ typically are ones that trigger the entry of judgment, they also

include a small set of prejudgment orders that are ‘collateral to’ the merits of an action

and ‘too important’ to be denied immediate review.” Id. (quoting Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949)).


                                            A.

       For the reasons that follow, we hold that this Court lacks jurisdiction over

Appellant’s appeal of the dismissal without prejudice of the information filed in his

juvenile delinquency proceeding.


                                            11
       The dismissal without prejudice of charges is not a final decision in the traditional

sense. Generally, a final decision “ends the litigation on the merits and leaves nothing

more for the court to do but execute the judgment.” Digital Equip. Corp. v. Desktop

Direct, Inc., 511 U.S. 863, 867 (1994) (quoting Catlin v. United States, 324 U.S. 229, 233

(1945)).      We have previously acknowledged that in an adult “criminal case, final

judgment means conviction and sentence.” United States v. Lanham, 631 F.2d 356, 357

(4th Cir. 1980) (per curiam). “A dismissal without prejudice is clearly neither, and the

order being interlocutory, . . . the appropriate time to review a dismissal [without

prejudice] is after reindictment and conviction.” Id.; see also United States v. Day, 806

F.2d 1240, 1242 (5th Cir. 1986) (“It is well settled that an order dismissing a criminal

indictment without prejudice is not a ‘final judgment’ under section 1291.” (collecting

cases)).

       The same reasoning applies in the juvenile context. Although an adjudication of

delinquency and a sentence end a juvenile prosecution, a dismissal without prejudice of

an information does not. Thus, under traditional § 1291 principles, appellate review of

the dismissal is improper unless and until an adjudication of delinquency and sentencing

take place.

       Furthermore, the dismissal without prejudice of charges is not an appealable

collateral order. An appealable collateral order must be “effectively unreviewable on

appeal from a final judgment,” Will v. Hallock, 546 U.S. 345, 349 (2006), which occurs

only when “a sufficiently important interest would be imperiled by our refusal to provide

an immediate appellate review,” Cobra Nat. Res., LLC v. Fed. Mine Safety & Health

                                            12
Review Comm’n, 742 F.3d 82, 86 (4th Cir. 2014). The Supreme Court and this Court

have long recognized, however, that a defendant whose indictment was dismissed

without prejudice “has not been injured by [the prosecution’s] termination in his [or her]

favor.” Lanham, 631 F.2d at 358 (quoting Parr v. United States, 351 U.S. 513, 517

(1956)) (first modification in original). Indeed, “[i]f [a defendant] is not reindicted, [he

or she] will never have suffered injury as a result of the dismissal.” United States v.

Moller-Butcher, 723 F.2d 189, 191 (1st Cir. 1983). “If, on the other hand, [a defendant]

is reindicted, then the dismissal is an intermediate step in the prosecution which may be

reviewed only after final judgment in the case.” Id. (citing Parr, 351 U.S. at 518–19).

       Again, this reasoning is equally applicable in the juvenile context. Appellant

generally cannot be “injured” by the dismissal without prejudice of the information

unless and until he is adjudicated delinquent and sentenced. 3        He therefore cannot

establish that a sufficiently important interest would be imperiled by our refusal to

immediately review this dismissal.

       3
         This observation is subject to at least one exception. If the federal government
moves for dismissal of a juvenile delinquency information against a defendant, and then
brings an adult indictment against the defendant after he or she becomes an adult that is
premised on the same misconduct that the information was premised on, the federal
government violates 18 U.S.C. § 5032, and so the defendant is injured if he or she moves
for dismissal of the indictment on that ground but sees that motion denied. See United
States v. Smith, 851 F.2d 706, 708 (4th Cir. 1988) (allowing an interlocutory appeal under
such circumstances). Appellant asserts that he likewise has a right not be subject to a
state adult prosecution following the dismissal of his federal juvenile delinquency
information. Assuming that this assertion is true (and we doubt it is), Appellant must
wait until he is subject to a state adult prosecution, brings a motion to dismiss premised
on that alleged right, and sees that motion denied, before he can claim injury to that
alleged right. The dismissal without prejudice of a federal juvenile delinquency
information, standing alone, does not injure that alleged right.

                                            13
       Because the dismissal without prejudice of Appellant’s information was neither a

traditional final order, nor an appealable collateral order, we conclude that we lack

jurisdiction under § 1291 to review this dismissal.


                                             B.

       We also hold that this Court lacks jurisdiction over Appellant’s appeal of the

denial of his motion to have the information dismissed with prejudice on the basis of an

alleged violation of his speedy trial rights under 18 U.S.C. § 5036.

       Appellant’s appeal of the above-described denial is clearly an appeal from an

interlocutory, rather than a final, order. The denial of Appellant’s § 5036 claim does not

end Appellant’s juvenile prosecution on the merits. See Digital Equip., 511 U.S. at 867.

       This denial is, moreover, not an appealable collateral order. In United States v.

Buchanan, we held that in an adult criminal proceeding, an order denying a motion to

dismiss premised on an alleged violation of the Speedy Trial Act, 18 U.S.C. § 3161, is

not an appealable collateral order. 946 F.2d 325, 327 (4th Cir. 1991). We explained that

such an order would “not be ‘effectively unreviewable’ on appeal from a final judgment,”

because “the guarantee of a speedy trial does not embody a right ‘not to be tried’” that

would be undermined by a full prosecution. Id. (quoting United States v. MacDonald,

435 U.S. 850, 861 (1978)); cf. Abney v. United States, 431 U.S. 651, 658–61 (1977)

(approving interlocutory appeal of the denial of dismissal on double jeopardy grounds,

because a defendant’s right not to be tried twice would be forever lost absent

interlocutory appeal). “Rather, ‘[i]t is the delay and not the trial that is the target of the


                                             14
[Speedy Trial] Act’ and proceeding to a final judgment ‘does not cause or compound the

harm at which the statute is aimed.’” Buchanan, 946 F.2d at 327 (quoting United States

v. Mehrmanesh, 652 F.2d 766, 769–70 (9th Cir. 1980)) (first modification in original).

       We believe that Buchanan compels the conclusion that a denial of a motion made

pursuant to § 5036 is not subject to interlocutory appeal. The Ninth Circuit has already

reached this conclusion, on the basis of rather convincing reasoning:

       As in the sixth amendment and Speedy Trial Act context, the right that is
       being asserted [by a defendant invoking § 5036] is the right to a speedy
       trial: “It is the delay and not the trial that is the target of the” juvenile
       speedy trial provision. [Mehrmanesh, 652 F.2d] at 769. Because it is the
       delay that is the focus of a juvenile’s speedy trial claim, allowing a juvenile
       to be tried prior to resolution of the speedy trial claim will not “cause or
       compound the harm” at which the juvenile speedy trial provision is aimed.
       Id. at 769–70.

United States v. Brandon P., 387 F.3d 969, 973 (9th Cir. 2004). We adopt the Ninth

Circuit’s reasoning here, and thus decline interlocutory review of Appellant’s § 5036-

based appeal. 4


       4
         Because the federal government was denied the ability to transfer Appellant to an
adult prosecution in this case, we need not address the question of whether the denial of a
§ 5036 motion can become immediately appealable if it is made by a juvenile defendant
transferred to an adult prosecution. We therefore decline to rule on this question, which
we acknowledge has divided our sister circuits. Compare United States v. A.R., 203 F.3d
955, 962–63 (6th Cir. 2000) (holding that the denial of a § 5036 motion is immediately
appealable if the juvenile defendant makes the appeal after being transferred to an adult
prosecution, on the grounds that if a juvenile defendant “ha[s] to wait until after trial and
a final judgment to appeal the claim, the adult trial would have already sacrificed the
legal and practical benefits of being tried as a juvenile” (internal quotation marks
omitted)) and United States v. David A., 436 F.3d 1201, 1205 (10th Cir. 2006)
(expressing agreement with A.R.) with Brandon P., 387 F.3d at 972–74 (holding that a
§ 5036 denial is not immediately appealable even if the juvenile defendant has been
transferred to an adult prosecution, on the grounds (1) that “it is the delay—not the

                                             15
       Because the denial of Appellant’s motion alleging a violation of his § 5036 speedy

trial rights was neither a traditional final order, nor an appealable collateral order, we

conclude that we lack jurisdiction under § 1291 to review this denial.


                                             C.

       Finally, we hold that we do have jurisdiction pursuant to § 1291 to review orders

authorizing disclosure of JJDPA-protected juvenile records and information, at least

where the object of the orders is to ensure that criminal defendants are able to present an

effective defense.

       Admittedly, the Juvenile Disclosure Orders and the Adult Protective Orders that

Appellant complains about are not appealable final decisions in the traditional sense.

These orders ended neither the litigation of the Juvenile Prosecution nor that of the Adult

Prosecution. See Digital Equip., 511 U.S. at 867. Nonetheless, these orders do, in our

view, belong to a class of appealable collateral orders.

       Under the modern collateral order doctrine, “an appealable collateral order must

‘[1] conclusively determine the disputed question, [2] resolve an important issue

completely separate from the merits of the action, and [3] be effectively unreviewable on

appeal from a final judgment.’” Cobra, 742 F.3d at 86 (quoting Will, 546 U.S. at 349).

In making a collateral order determination, “our focus is not on the particular order at



treatment of the juvenile as a juvenile—that is targeted by the juvenile speedy trial
provision, and an immediate appeal is not necessary to vindicate this right,” and (2) that
the well-settled right to appeal an interlocutory transfer order already adequately protects
the right of a juvenile to be treated as such).

                                             16
issue, but rather on the ‘entire category’ of orders to which it belongs.” Id. at 87 (quoting

Digital Equip., 511 U.S. at 868).

          With respect to the first requirement, the district court’s orders conclusively

determined a disputed question. “This ‘most basic element’ is sometimes presumed

satisfied so long as the district court . . . has decided the matter presented on appeal.” Id.

at 88 (quoting 15A Charles Alan Wright et al., Federal Practice and Procedure § 3911.1

(2d ed. 1992)).       The Juvenile Disclosure Orders and the Adult Protective Orders

unequivocally decided to authorize disclosure, and “there is [no] ‘plain prospect’ that the

lower could alter its own ruling.” Id. (quoting FTC v. Standard Fin. Mgmt. Corp., 830

F.2d 404, 407 (1st Cir. 1987)). Thus, the first requirement of the collateral order doctrine

is met.

          Moreover, the district court’s orders are separate from the merits. The orders at

issue here were decided based on consideration of the Adult Defendants’ interest in

receiving material useful to the presentation of their defense, as well as Appellant’s

interests in confidentiality and safety. These orders do not decide the guilt or innocence

of the Adult Defendants, or the guilt or innocence of Appellant. In other words, there is

not even “a threat of substantial duplication of judicial decision making.” Id. at 89

(internal quotation marks omitted).        The second requirement of the collateral order

doctrine is therefore met.

          Finally, we hold that the district court’s orders belong to a category of orders that

are “effectively unreviewable” on appeal from final judgment. Again, this requirement is

met only when “a sufficiently important interest would be imperiled by our refusal to

                                               17
provide an immediate appellate review.” Id. at 86. Our precedent confirms that a

juvenile’s confidentiality interest in records and information protected by 18 U.S.C.

§ 5038 is of sufficient importance, and the harm to it sufficiently irreparable if threatened,

to warrant immediate appellate review. See United States v. Smith, 851 F.2d 706 (4th

Cir. 1988).

       In Smith, the defendant filed a motion to dismiss his adult indictment—which was

premised on the same alleged misconduct that had been the subject of a dismissed

juvenile information—on the grounds that it was unlawful for him to be tried as an adult.

Id. at 707–08. The district court denied the defendant relief, and the defendant appealed.

Id. at 708. This Court treated the denial as an immediately appealable collateral order,

reasoning that “much of the sequellae of [the defendant’s] right to be tried as a juvenile,

if that claim is meritorious, would be irrevocably lost” upon postponed appellate review.

Id. The “sequellae” cited were a juvenile’s “entitle[ment] to the sealing of court records,

limitation of inquiries into records, protection from photographing and withholding of his

name and picture from the news media.” Id. (citing, inter alia, 18 U.S.C. § 5038).

       Similarly, orders authorizing the disclosure of protected juvenile records and

information, if not immediately appealable, render juvenile confidentiality protections

“irrevocably lost.” These confidentiality protections, as discussed below, safeguard a

juvenile’s interest in privacy, safety, and avoiding retaliation. Orders undermining these

protections therefore implicate an important interest that would be thwarted by a refusal

by this Court to offer immediate appellate review. Because the Juvenile Disclosure



                                             18
Orders and Adult Protective Orders belong to this category of orders, we hold that the

third requirement of the collateral order doctrine is met.

       In sum, we conclude that the Juvenile Disclosure Orders and the Adult Protective

Orders are within this Court’s collateral order jurisdiction.


                                             III.

       We must next determine whether Appellant has standing to appeal the Juvenile

Disclosure Orders and the Adult Protective Orders, and if he does, whether the appeal of

those orders is moot.      Because standing and mootness address themselves to the

“justiciability” of a dispute, Lebron v. Rumsfeld, 670 F.3d 540, 561 (4th Cir. 2012), we

analyze these issues before exploring the merits of the appealed orders.


                                             A.

       Appellant appeals two sets of rulings: the Juvenile Disclosure Orders issued in the

Juvenile Prosecution case number, and the Adult Protective Orders issued in the Adult

Prosecution case number. We hold that Appellant has standing to appeal both sets of

rulings.

       “As a general rule, only named parties to the case in the district court and those

permitted to intervene may appeal an adverse order or judgment.” Doe v. Public Citizen,

749 F.3d 246, 257 (4th Cir. 2014) (citing Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per

curiam)). “The reason for such a rule is obvious: because a nonparty generally is not

bound by a judgment, he [or she] ordinarily cannot be aggrieved by the judgment to the

extent necessary to permit appellate review.” Kenny v. Quigg, 820 F.2d 665, 667 (4th

                                             19
Cir. 1987) (citing Newberry v. Davison Chem. Co., 65 F.2d 724, 729 (4th Cir. 1933)).

Moreover, an appellate tribunal is generally not the proper place for a litigant to

commence its participation in a case, as is too often the situation for nonparty appellants.

       In cases where the justifications behind the general rule are inapplicable, however,

we have shown greater flexibility with respect to nonparty appellants. As we recently

explained in Public Citizen, “a nonparty [may] appeal a district court’s order or judgment

when the appellant (1) possessed ‘an interest in the cause litigated’ before the district

court and (2) ‘participated in the proceedings actively enough to make him privy to the

record.’” 749 F.3d at 259 (quoting Kenny, 820 F.2d at 668).

       Appellant’s appeal of the Juvenile Disclosure Orders is, with respect to standing,

unproblematic. That appeal is simply a run-of-the-mill effort by a named party to seek

review of adverse district court rulings. Appellant no doubt has standing to proceed with

such an appeal.

       Moreover, we hold that Appellant has standing to appeal the Adult Protective

Orders. Although Appellant was not a party in the Adult Prosecution, we believe that

Appellant’s appeal of the Adult Protective Orders satisfies the two Public Citizen

requirements for nonparty appeals.

       Regarding    the   first   requirement,    Appellant   clearly   possessed   juvenile

confidentiality interests that were impacted by the Adult Protective Orders. The JJDPA

“mandates the non-disclosure of juvenile delinquency proceeding records” and related

information, in order to safeguard “interests of juvenile confidentiality.” United States v.

Under Seal, 709 F.3d 257, 261–62 (4th Cir. 2013). Although the Adult Protective Orders

                                             20
may have been justified by exceptions to the JJDPA—as discussed below—the

disclosures they authorized still clearly undermined Appellant’s juvenile confidentiality

interests.

       Regarding the second requirement, Appellant filed written objections and

participated in a hearing contesting disclosure of what Appellant argued was confidential

material, although the district court nonetheless ruled against him. We have previously

held that the filing of objections addressing confidentiality issues, which “the district

court fully considered, and overruled,” was “akin to party participation” as it pertains to

those issues. Public Citizen, 749 F.3d at 260; see also Kenny, 820 F.2d at 667–68

(permitting a nonparty to appeal a district court’s approval of a sale of stock, where the

nonparty appellant filed objections to the sale, which the district court considered but

overruled). We adhere to this reasoning in the present case.

       Admittedly, Appellant’s participation in the litigation of the Adult Protective

Orders was indirect, because his filings and his hearing all took place in the Juvenile

Prosecution case number rather than the Adult Prosecution case number. Nonetheless, in

light of the highly unique circumstances of this case, we believe that Appellant’s

challenges to the Juvenile Disclosure Orders were also in effect challenges to the Adult

Protective Orders. Both sets of orders were issued by the exact same judge, centered on

identical issues, and involved identical disclosures.

       Furthermore, permitting Appellant’s nonparty appeal would in no way implicate

the special standing concerns cited in Public Citizen. Appellant’s appeal is designed to

vindicate his own legal right to have information pertaining to him kept confidential;

                                             21
centers on specific, statutorily-protected confidentiality interests; and represents a

juvenile’s effort to benefit from a juvenile-specific statute. His appeal, therefore, does

not implicate “the general prohibition on a litigant’s raising another person’s legal rights,

the rule barring adjudication of generalized grievances more appropriately addressed in

the representative branches, [or] the requirement that a plaintiff’s complaint fall within

the zone of interests protected by the law invoked.” Allen v. Wright, 468 U.S. 737, 751

(1984), quoted in Public Citizen, 749 F.3d at 259–60. 5

       In sum, we hold that Appellant’s appeal of the district court’s disclosure

authorization orders is on firm footing with respect to standing.


                                             B.

       Secure in Appellant’s standing to move forward with his appeal of the district

court’s disclosure authorization orders, we now address the question of whether

Appellant’s appeal is nonetheless moot.        Regarding the disclosure of the Transfer

Transcript and the Investigative Report, we hold that a live controversy still exists as to




       5
         In Public Citizen, we suggested that these standing concerns were “prudential,”
based on a citation to Allen and a corresponding explanatory parenthetical. Public
Citizen, 749 F.3d at 259–60 (citing Allen, 468 U.S. at 751). We now expressly
acknowledge, however, that the Supreme Court has recently pushed back on Allen’s
“prudential” language. Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377 (2014). In Lexmark, the Supreme Court clarified that the zone of interests concern
refers to an issue of statutory authorization, the generalized grievance concern an issue of
“constitutional” dimensions, and the third-party standing concern an issue that is “harder
to classify.” Id. at 1387 & n.3. Importantly, regardless of how these three concerns are
labeled, none of them are implicated by Appellant’s appeal.

                                             22
those matters. Regarding the disclosure of Appellant’s identity, however, we hold that

that matter is moot.


                                             1.

       Article III of the Constitution limits the jurisdiction of federal courts to cases and

controversies. U.S. Const. art. III, § 2, cl.1. Moreover, federal courts do not issue

advisory opinions; they “only decide cases that matter in the real world.” Catawba

Riverkeeper Found. v. N.C. Dep’t of Transp., 843 F.3d 583, 589 (4th Cir. 2016) (quoting

Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir. 2010)). As such, a

case is mooted on appeal when a court is unable to grant any “effectual relief” to the

prevailing party. Williams v. Ozmint, 716 F.3d 801, 809 (4th Cir. 2013) (citing Church of

Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)). Nonetheless, “[a]s long as

the parties have a concrete interest, however small, in the outcome of the litigation, the

case is not moot.” Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (quoting Knox v.

Service Employees, 132 S. Ct. 2277, 2287 (2012)). “While the prospect of partial relief is

sufficient to defeat mootness, mere speculation ‘afford[s] no basis for finding the

existence of a continuing controversy as required by Article III.’” Constand v. Cosby,

833 F.3d 405, 409 (3d Cir. 2016) (quoting Blanciak v. Allegheny Ludlum Corp., 77 F.3d

690, 700 (3d Cir. 1996)).

       The federal government contends that the issue of the propriety of the district

court’s authorization of the disclosure of the Transfer Transcript and the Investigative

Report is moot on appeal, because this Court cannot grant Appellant any effectual relief.


                                             23
According to the federal government, because this Court can only retract the disclosures,

but cannot order the recipients of the disclosed documents to forget the information

contained therein, review by this Court does not do Appellant any good. We disagree.

       In Church of Scientology, the Supreme Court addressed a challenge to an Internal

Revenue Service summons seeking certain taxpayer records, where the records had

already been turned over in response to the summons. 506 U.S. at 10–11. The Court

unanimously held that the appeal was not moot, because “the Government’s continued

possession of those materials” constituted an “affront to the taxpayer’s privacy,” which

could be addressed with the “partial remedy [of] ordering the Government to destroy or

return any and all copies it may have in its possession.” Id. at 13.

       Likewise, in this case we believe that Appellant has a privacy interest in records of

his testimony and interview—i.e., the Transfer Transcript and the Investigative Report—

that is affronted by the Adult Defense Attorneys’ continued possession of those records.

These records contain several pages of statements that Appellant made with an

expectation of confidentiality, which is undermined when the statements are not kept

confidential. As such, this Court has the power to grant Appellant effectual relief in the

form of an order to have those records destroyed or returned.

       Such an order, moreover, would also benefit Appellant in that it would close the

door to an ongoing risk of disclosure. The Adult Protective Orders corresponding to the

Transfer Transcript and the Investigative Report authorize each of the Adult Defense

Attorneys to “discuss the substance of the [Transfer Transcript and the Investigative

Report] with their client” so long as they do “not provide their client with direct access to

                                             24
the document[s].” J.A. 725, 727. Were we to rescind the disclosure of the transcript and

report, then the Adult Defense Attorneys could no longer discuss the substance of these

documents with their clients. This would constitute effectual relief for Appellant.

       Consequently, we hold that the controversy regarding the disclosure of the

Transfer Transcript and the Investigative Report is not moot.


                                             2.

       The federal government also argues that the controversy regarding the disclosure

of Appellant’s identity is moot. On this matter, we agree with the federal government.


                                             a.

       When Appellant’s identity was disclosed to the Adult Defense Attorneys, the

affront to Appellant’s privacy interest in his identity was completed. Appellant’s identity

is now known to the Adult Defense Attorneys; we cannot unring that bell. Although

multi-page records of confidential statements can be ordered destroyed or returned, this

Court cannot realistically order individuals to forget a uniquely discrete piece of

information like an identity.

       Moreover, the Adult Protective Order corresponding to Appellant’s identity does

not present an ongoing disclosure risk. That order requires the Adult Defense Attorneys

to, as a general matter, limit access to Appellant’s identity to themselves. It authorizes

the Adult Defense Attorneys to disclose Appellant’s identity to their clients only in three

circumstances:    (i) when the court schedules a material witness deposition with

Appellant, (ii) 30 days before trial if Appellant remains detained by the district court, or

                                            25
(iii) when “otherwise ordered by the court.” J.A. 782–83. The first circumstance appears

extremely unlikely to ever arise because Appellant invoked his privilege against self-

incrimination, was denied testimonial immunity, was deported to El Salvador, and is not

expected to be at risk of prosecution in the United States until after the Adult Prosecution

ends. The second circumstance appears extremely unlikely to ever arise for similar

reasons. The third circumstance is merely a reiteration of district court authority, rather

than a provision creating any new disclosure risk.

       Finally, there is no genuine risk of future use of Appellant’s identity by the Adult

Defense Attorneys. Again, Appellant has already invoked his privilege against self-

incrimination, been denied testimonial immunity, and been deported to El Salvador. As

such, the Adult Defense Attorneys are extremely unlikely to use Appellant’s identity in

the one manner in which they were authorized to use it, i.e., in connection with an

application for a material witness warrant.

       Under these particular circumstances, we are unable to discern a ground for

rejecting the federal government’s charge that the disclosure of Appellant’s identity is a

moot controversy. Any risk of future disclosure or use of Appellant’s identity is not

simply small, it is entirely speculative.


                                              b.

       This conclusion does not end our analysis, however, for we must now determine

how to dispose of the moot aspect of Appellant’s appeal. We believe that vacatur and

remand is the appropriate course of action in this case.


                                              26
         “Our ‘customary practice when a case is rendered moot on appeal is to vacate the

moot aspects of the lower court’s judgment,’” Catawba Riverkeeper, 843 F.3d at 589

(quoting Norfolk, 608 F.3d at 161), and then “remand for dismissal,” Mellen v. Bunting,

327 F.3d 355, 364 (4th Cir. 2003). This “rule is an equitable one, applicable only in

limited circumstances, and used to ensure that a losing party’s right of appellate review is

not frustrated by circumstances out of that party’s control.”          Id.   Thus, vacatur is

improper when the mootness resulted from the “voluntary action of the losing party”

below.      Id.   In contrast, “[v]acatur is in order when mootness occurs through

happenstance—circumstances not attributable to the parties—or, relevant here, the

‘unilateral action of the party who prevailed in the lower court.’” Arizonans for Official

English v. Arizona, 520 U.S. 43, 71–72 (1997) (quoting U.S. Bancorp Mortg. Co. v.

Bonner Mall P’ship, 513 U.S. 18, 23 (1994)). With that said, some of our sister circuits

have suggested that vacatur is improper “when the losing party has made no attempt

whatsoever to seek a stay” that could facilitate appellate review. Constand, 833 F.3d at

412 (citing In re Western Pacific Airlines, 181 F.3d 1191 (10th Cir. 1999); Mahoney v.

Babbitt, 113 F.3d 219 (D.C. Cir. 1997)).

         With these considerations in mind, it is clear that vacatur is in order here. The

mootness at issue in this case is attributable to the federal government’s conduct of

disclosing Appellant’s identity to the Adult Defense Attorneys. Moreover, we cannot say

that Appellant in any way contributed to mootness by declining to seek a stay. At the

hearing addressing the disclosure of Appellant’s identity, Appellant’s attorney

specifically requested a stay in order to facilitate appellate review, but to no avail.

                                              27
       We therefore vacate the district court’s denial of Appellant’s motion to prohibit

disclosure of his identity. We also vacate any aspect of the Adult Protective Order

corresponding to Appellant’s identity that authorizes disclosure of the identity by the

federal government to the Adult Defense Attorneys, or authorizes the Adult Defense

Attorneys to use the identity or disclose it to others. Our vacatur does not affect any

aspect of the latter order that is designed to guard against further dissemination of

Appellant’s identity. We also remand with instructions to the district court to dismiss the

federal government’s prior requests to allow disclosure of Appellant’s identity. This

dismissal should not extend to prior requests by the federal government for safeguards

against further dissemination of Appellant’s identity.


                                            IV.

       Having decided that Appellant has standing to move forward in his appeal, and

that Appellant’s challenge to the disclosure of the Transfer Transcript and the

Investigative Report is not moot, this Court can now address the merits of his challenge.

Appellant’s challenge turns on whether the JJDPA leaves district courts with discretion to

authorize disclosure of juvenile materials, and if it does, whether the district court below

nonetheless erred in authorizing the disclosure of the Transfer Transcript and the

Investigative Report. We review a district court’s interpretation of a statute de novo.

United States v. Hilton, 701 F.3d 959, 966 (4th Cir. 2012). We review a district court’s

decision on matters of discretion for abuse of discretion. Highmark Inc. v. Allcare Health

Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748 (2014).


                                            28
                                            A.

       At the outset, we must recognize that the JJDPA generally protects the Transfer

Transcript and the Investigative Report from disclosure.

       In analyzing the disclosure of the Transfer Transcript and the Investigative Report,

two provisions of the JJDPA are particularly relevant: subsections (a) and (c) of 18

U.S.C. § 5038. Moreover, § 5038(a) can be divided into three relevant clauses. The first

clause, which we refer to as the “Safeguard Clause,” provides that “[t]hroughout and

upon the completion of the juvenile delinquency proceeding, the records shall be

safeguarded from disclosure to unauthorized persons.” § 5038(a). The second clause,

which we refer to as the “Mandatory Disclosure Clause,” instructs that such records

“shall be released to the extent necessary to meet” inquiries from any of six types of

entities. Id. Finally, the third clause, which we refer to as the “Non-Disclosure Clause,”

cautions that “[u]nless otherwise authorized by this section, information about the

juvenile record may not be released when the request for information is related to an

application for employment, license, bonding, or any civil right of privilege.” Id.

       At the same time, § 5038(c) provides the following directive:

       During the course of any juvenile delinquency proceeding, all information
       and records relating to the proceeding, which are obtained or prepared in
       the discharge of an official duty by an employee of the court or an
       employee of any other governmental agency, shall not be disclosed directly
       or indirectly to anyone other than the judge, counsel for the juvenile and the
       Government, or others entitled under this section to receive juvenile
       records.

       The Transfer Transcript—a record of Appellant’s testimony in his transfer

hearing—is a record of and relating to a juvenile delinquency proceeding, and is thus

                                            29
protected by both subsections (a) and (c) of § 5038. Furthermore, the Investigative

Report—which documents Appellant’s statements to law enforcement officers in

connection with the Trujillo murder—constitutes both a record and information relating

to a juvenile delinquency proceeding protected by § 5038(c).


                                            B.

       Although the JJDPA’s confidentiality protections attach to both Appellant’s

transcript and report, we must next consider whether the district court retained discretion

to authorize disclosure of these documents notwithstanding the aforementioned

protections. We conclude that it did retain such discretion.

       We arrive at this conclusion in light of helpful guidance from our sister circuits.

The First and Third Circuits have read § 5038(a) as leaving the district court with

discretion to authorize disclosure of the records of a juvenile delinquency proceeding.

See United States v. Three Juveniles, 61 F.3d 86, 90–91 (1st Cir. 1995); United States v.

A.D., 28 F.3d 1353, 1355 (3d Cir. 1994). Those courts emphasize that the Safeguard

Clause bars disclosure not to “all persons,” but only to “unauthorized persons,” which

suggests that district courts retain discretion to classify certain persons as authorized to

receive disclosures. Three Juveniles, 61 F.3d at 90–91; A.D., 28 F.3d at 1359.

       Additionally, those courts explain how the Mandatory Disclosure Clause does not

purport to serve as the exclusive basis of disclosure authority. The Mandatory Disclosure

Clause only provides an exclusive list of entities that “shall be” entitled to receive

disclosures (i.e., mandatory disclosures); however, it does not address the subject of


                                            30
entities that “may be” authorized to receive disclosures (i.e., permissive disclosures).

Three Juveniles, 61 F.3d at 91; A.D., 28 F.3d at 1359.

       Those courts add that reading the Mandatory Disclosure Clause to foreclose

permissive disclosures would create a superfluity issue. In their view, if the Mandatory

Disclosure Clause provided the exclusive list of allowable disclosures, then it would be

unnecessary for the Non-Disclosure Clause to specify certain types of requests as

incapable of receiving disclosure “unless otherwise authorized” by § 5038; such requests

would necessarily be precluded from receiving disclosures if they could not rely upon

Mandatory Disclosure Clause authorization.       Three Juveniles, 61 F.3d at 91; A.D., 28

F.3d at 1359–60. 6

       Those courts also read § 5038(c) as authorizing permissive disclosures. They

reason that when § 5038(c) prohibits disclosure of “information and records relating to

[any juvenile delinquency] proceeding,” except from “others entitled under this section to

receive juvenile records,” the statute excepts from its disclosure prohibition those

authorized by the district court to receive juvenile records under § 5038(a).         Three

Juveniles, 61 F.3d at 91 n.5; A.D., 28 F.3d at 1360. In other words, one of the effects of


       6
          Although unacknowledged by the First and Third Circuits, we note that one
could argue that the Non-Disclosure Clause is somewhat superfluous even if the
Safeguard Clause is read to include permissive disclosure authority; after all, the types of
requests identified in the Non-Disclosure Clause would necessarily be precluded from
receiving disclosure if they were not “otherwise authorized” to receive disclosure via the
Mandatory Disclosure Clause or the Safeguard Clause’s grant of permissive disclosure
authority. Even assuming that this is true, it would simply mean that the Non-Disclosure
Clause weighs neutrally on the permissive disclosure authority question, rather than
against it.

                                            31
the above-described exception is to import § 5038(a)’s permissive disclosure authority

concept into § 5038(c).

      The recognition of permissive disclosure authority, moreover, has the virtue of

allowing district courts to accommodate disclosure requests in the event that the

Constitution requires or at least arguably requires disclosure, regardless of whether the

Mandatory Disclosure Clause applies. Examples of such requests include disclosure

requests premised on the public’s First Amendment interest in access to judicial

proceedings, Three Juveniles, 61 F.3d at 90; A.D., 28 F.3d at 1359, or disclosure requests

premised on a defendant’s Sixth Amendment right to material necessary for cross-

examination, United States v. Chacon, 564 F.2d 1373, 1376–77 (9th Cir. 1977)

(Kennedy, J., concurring) (citing Davis v. Alaska, 415 U.S. 308 (1974)). Because an

absolute non-disclosure reading of subsections (a) and (c) of § 5038 would “raise serious

constitutional problems” by erecting a non-disclosure bar in cases where the Constitution

actually or arguably requires disclosure—and because a permissive disclosure reading is

not “plainly contrary to the intent of Congress” in light of the relevant statutory text—we

are obliged to adhere to the latter reading. Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). 7




      7
          Our recognition of the virtue of a district court being able to grant disclosure
requests that have a constitutional foundation should not be construed to preclude a
district court from being able to grant disclosure requests premised on other important
interests that lack a constitutional foundation.


                                            32
       The First and Third Circuits’ reading of subsections (a) and (c) of § 5038 is

convincing, and we now adopt it in this Circuit. Specifically, we read these provisions as

containing grants of permissive disclosure authority, subject to limitations that may be

imposed elsewhere by the JJDPA. 8


                                            C.

       Having concluded that district courts retain discretion under § 5038 to authorize

limited disclosures of confidential juvenile records and information, we must next decide

whether the district court in this case abused its discretion by authorizing the disclosure

of the Transfer Transcript and the Investigative Report.        As explained below, we

conclude that the district court committed no abuse of discretion.

       At the outset, we emphasize the principles that guide our review of disclosures of

juvenile records and information. “[A]n essential aspect of the juvenile justice system

has been to maintain the privacy of the young offender and, contrary to our criminal law

       8
          The parties extensively discuss Chacon, a Ninth Circuit decision holding that a
district court—pursuant to the first exception in § 5038(a)’s Mandatory Disclosure
Clause—is empowered to authorize disclosure of protected juvenile records to a
defendant who was being prosecuted for a criminal transaction that the juvenile
participated in. 564 F.2d at 1375–76 (majority opinion). As then-Judge Anthony
Kennedy’s concurrence noted, the problem with this holding is that it undermines
confidentiality protection in a type of case where defendants may need it most—in cases
where a juvenile may fear retaliation from adult co-principals, and thus be reluctant to
speak freely about a criminal transaction. Id. at 1377 (Kennedy, J., concurring). Because
in our view § 5038(a)’s Safeguard Clause already contains a general permissive
disclosure authority concept, it is unnecessary for us to adopt the Chacon majority’s
§ 5038(a)(1)-based “same-transaction” disclosure exception. Moreover, we advise
district courts invoking Safeguard Clause-based permissive disclosure authority to remain
mindful of then-Judge Kennedy’s warnings about the risks associated with authorizing
disclosure to adult co-principals.

                                            33
system, to shield him [or her] from the dissemination of truthful information and

transparency that characterizes the punitive system in which we try adults.” United

States v. Elkins, 683 F.3d 1039, 1047 (9th Cir. 2012) (internal quotation marks omitted).

Moreover, confidentiality encourages “the juvenile to discuss his [or her] actions freely

and completely so that rehabilitation can commence without delay, and without fear of

retaliation or censure.” Chacon, 564 F.2d at 1377 (Kennedy, J., concurring). Juvenile

confidentiality is the “norm,” and thus any permissive disclosures must be justified by

sound reasons and must not be unduly harmful to the juvenile. Three Juveniles, 61 F.3d

at 92.

         We are satisfied that the district court’s disclosure authorizations in this case were

consistent with these principles and thus within the bounds of its discretion. To begin,

the court could reasonably conclude that Appellant’s confidentiality interests should give

way to the federal government’s interest in ensuring that the Adult Defense Attorneys

had the materials necessary to present an effective defense for their clients. The Transfer

Transcript and the Investigative Report contained Appellant’s version of the Trujillo

murder in his role as a co-principal, and records of a co-principal’s version of an alleged

crime can give a defense attorney a better understanding of the case that his or her client

faces. Moreover, at the time the court was deciding whether to disclose the Transfer

Transcript and the Investigative Report, Appellant was at risk of being deported and had

not yet invoked his privilege against self-incrimination; therefore, prompt disclosure of

the documents was needed to ensure that the Adult Defense Attorneys could decide



                                               34
whether to apply for a material witness warrant for Appellant before he became

unavailable.

       Furthermore, the disclosure of the Transfer Transcript and the Investigative Report

was done in a circumscribed manner and with an eye toward Appellant’s safety. The two

documents focused on the factual circumstances surrounding Trujillo’s murder;

extraneous and personal information was removed from both documents. Finally, the

Transfer Transcript and the Investigative Report were each accompanied by a respective

protective order outlining seven measures designed to guard against dissemination of the

two documents beyond the Adult Defense Attorneys. Those measures were proposed by

the federal government itself, for the express purpose of preserving Appellant’s safety.

       Appellant insists that the district court should have demanded more specificity

from the federal government than it did, and that the court should have conducted an in

camera review of the materials before authorizing disclosure. In light of the federal

government’s careful redactions, the parties’ detailed briefing, and the district court

judge’s experience presiding over both the Juvenile Prosecution and the Adult

Prosecution, we believe that these additional steps—although they would have potentially

been helpful—were not necessary.

       Under these circumstances, we discern no abuse of discretion in the district court’s

authorization of disclosure of the Transfer Transcript and the Investigative Report.




                                            35
                                            V.

       In summary, we dismiss Appellant’s appeal of the district court’s dismissal of

Appellant’s information without prejudice and its denial of Appellant’s motion for

dismissal of the information with prejudice. However, we affirm the district court’s

decision to disclose the Transfer Transcript and the Investigative Report. We vacate as

moot the aspects of the district court’s judgment authorizing the disclosure of Appellant’s

identity by the federal government to the Adult Defense Attorneys, and authorizing the

Adult Defense Attorneys to use the identity or disclose it to others. Of course, we leave

in place the safeguards issued to prevent further dissemination of that information.

Finally, we remand with instructions to the district court to dismiss the government’s

prior requests for disclosure of Appellant’s identity, again leaving in place prior requests

for safeguards against further dissemination.

                                                               AFFIRMED IN PART,
                                                               DISMISSED IN PART,
                                                            VACATED IN PART, AND
                                                     REMANDED WITH INSTRUCTIONS




                                            36
DIANA GRIBBON MOTZ, concurring:

       I concur in the opinion for the panel majority, except for its holding that the

juvenile had non-party standing to appeal from the protective orders issued in the adult

case. The juvenile did not participate at all in the adult case and so by definition did not

“participate[] in the proceedings actively enough to make him privy to the record” as

required for non-party standing. Doe v. Public Citizen, 749 F.3d 246, 259 (4th Cir. 2014)

(internal quotation marks omitted).




                                            37
