Case: 16-11690 Date Filed: 05/30/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-11690 ________________________
D.C. Docket No. 1:13-cr-00130-SCJ-JFK-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARLON R. MILLER, a.k.a. Marlon Raashon Miller,
Defendant - Appellant. ________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(May 30, 2019)
Before MARCUS and BLACK, Circuit Judges, and RESTANI, * Judge.
PER CURIAM:
Marlon R. Miller appeals following his conviction and sentence for offenses
* Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. Case: 16-11690 Date Filed: 05/30/2019 Page: 2 of 7
related to trafficking heroin. Miller was convicted of conspiracy to possess with
intent to distribute 1 kilogram or more of heroin, attempting to possess with intent
to distribute 1 kilogram or more of heroin, and possession with intent to distribute
100 grams or more of heroin, in violation of 21 U.S.C. §§ 841 and 846. On appeal,
Miller challenges the district court’s orders sealing certain documents related to a
joint internal investigation by the Drug Enforcement Administration (“DEA”) and
Department of Justice as a violation of his right to a public trial under the First and
Sixth Amendments and the common-law right of access. Miller also argues that
the sealing order prevented him from presenting a complete defense. Finally,
Miller claims that the district court erred in stating that the government may be
permitted to introduce rebuttal evidence related to a confidential informant’s work
for the DEA after his arrest. After careful review, we affirm Miller’s conviction
and sentence. Because we write for the parties, we set out facts only as they are
needed in support of our analysis.
As an initial matter, we deny Miller’s claim that this merits panel should
decide his previous motion for reconsideration of his motion to lift the protective
order. “A party may file only one motion for reconsideration with respect to the
same order. Likewise, a party may not request reconsideration of an order
disposing of a motion for reconsideration previously filed by that party.” 11th Cir.
R. 27-3. Because Miller has filed two motions to lift the protective order to this
2 Case: 16-11690 Date Filed: 05/30/2019 Page: 3 of 7
Court, Miller’s renewed motion is an impermissible successive motion for
reconsideration.
We generally review for abuse of discretion a district court’s refusal to
unseal documents, see United States v. Ignasiak, 667 F.3d 1217, 1238 n.25 (11th
Cir. 2012), and evidentiary rulings. See United States v. Perez-Oliveros, 479 F.3d
779, 783 (11th Cir. 2007). Where an issue is raised for the first time on appeal,
however, this Court reviews the issue for plain error. United States v. Clark, 274
F.3d 1325, 1326 (11th Cir. 2001). Under plain error review, the defendant must
show (1) an error, (2) that was plain, and (3) affected the defendant’s substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993). When these factors are
met, this Court may exercise its discretion and correct the error if it “seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id. at
736. To preserve an issue for appeal, a party “must articulate the specific nature of
his objection . . . so that the district court may reasonably have an opportunity to
consider it.” United States v. Carpenter, 803 F.3d 1224, 1237 (11th Cir. 2015); see
also United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007) (stating that a
party must object in a manner “sufficient to apprise the trial court and the opposing
party of the particular grounds upon which appellate relief will later be sought”).
Although Miller objected to the sealing of the documents and the denial of copies
of those documents on grounds under Brady v. Maryland, 373 U.S. 83 (1963), he
3 Case: 16-11690 Date Filed: 05/30/2019 Page: 4 of 7
did not object that such action deprived him of a right to a public trial or of the
right to a complete defense as he does now. Thus, we review for plain error.
The district court did not plainly err in sealing the investigation documents
and adopting procedures limiting access to those documents. The presumption of
openness in court proceedings granted by the Constitution “may be overcome only
by an overriding interest based on findings that closure is essential to preserve
higher values and is narrowly tailored to serve that interest.” See Press-Enterprise
Co. v. Superior Court of California, 464 U.S. 501, 510 (1984). “The interest is to
be articulated along with findings specific enough that a reviewing court can
determine whether the closure order was properly entered.” Id. Here, the district
court sealed the documents and adopted proposed disclosure procedures “for good
cause shown” in the government’s motions. In doing so, it agreed with the
government’s argument that Miller had minimal interest in the materials because
they were likely irrelevant and inadmissible under Federal Rules of Evidence
(“FRE”) 401 and 402, and because the government would not call certain
individuals referenced in those investigation documents at trial. Moreover, the
court also adopted the government’s position that its interest was grounded in
protecting sensitive non-public information contained in an ongoing investigation
involving government agents and confidential informants. At base, the district
court found that closure was essential to preserve the government’s higher interest
4 Case: 16-11690 Date Filed: 05/30/2019 Page: 5 of 7
and its adoption of procedures preventing disclosure of information solely related
to the investigation ensured that the order was narrowly tailored to serve that
interest. 1 Moreover, because Miller was permitted to access the investigation
documents under the adopted disclosure procedures, the district court did not
violate Miller’s common-law right to access with regard to those documents. See
Romero v. Drummond Co., 480 F.3d 1234, 1246 (11th Cir. 2007). Accordingly,
the closure order was properly entered.
In addition, the district court did not commit plain error in denying Miller’s
request for copies of the investigation documents. First, Miller claims that the
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Case: 16-11690 Date Filed: 05/30/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-11690 ________________________
D.C. Docket No. 1:13-cr-00130-SCJ-JFK-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARLON R. MILLER, a.k.a. Marlon Raashon Miller,
Defendant - Appellant. ________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(May 30, 2019)
Before MARCUS and BLACK, Circuit Judges, and RESTANI, * Judge.
PER CURIAM:
Marlon R. Miller appeals following his conviction and sentence for offenses
* Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. Case: 16-11690 Date Filed: 05/30/2019 Page: 2 of 7
related to trafficking heroin. Miller was convicted of conspiracy to possess with
intent to distribute 1 kilogram or more of heroin, attempting to possess with intent
to distribute 1 kilogram or more of heroin, and possession with intent to distribute
100 grams or more of heroin, in violation of 21 U.S.C. §§ 841 and 846. On appeal,
Miller challenges the district court’s orders sealing certain documents related to a
joint internal investigation by the Drug Enforcement Administration (“DEA”) and
Department of Justice as a violation of his right to a public trial under the First and
Sixth Amendments and the common-law right of access. Miller also argues that
the sealing order prevented him from presenting a complete defense. Finally,
Miller claims that the district court erred in stating that the government may be
permitted to introduce rebuttal evidence related to a confidential informant’s work
for the DEA after his arrest. After careful review, we affirm Miller’s conviction
and sentence. Because we write for the parties, we set out facts only as they are
needed in support of our analysis.
As an initial matter, we deny Miller’s claim that this merits panel should
decide his previous motion for reconsideration of his motion to lift the protective
order. “A party may file only one motion for reconsideration with respect to the
same order. Likewise, a party may not request reconsideration of an order
disposing of a motion for reconsideration previously filed by that party.” 11th Cir.
R. 27-3. Because Miller has filed two motions to lift the protective order to this
2 Case: 16-11690 Date Filed: 05/30/2019 Page: 3 of 7
Court, Miller’s renewed motion is an impermissible successive motion for
reconsideration.
We generally review for abuse of discretion a district court’s refusal to
unseal documents, see United States v. Ignasiak, 667 F.3d 1217, 1238 n.25 (11th
Cir. 2012), and evidentiary rulings. See United States v. Perez-Oliveros, 479 F.3d
779, 783 (11th Cir. 2007). Where an issue is raised for the first time on appeal,
however, this Court reviews the issue for plain error. United States v. Clark, 274
F.3d 1325, 1326 (11th Cir. 2001). Under plain error review, the defendant must
show (1) an error, (2) that was plain, and (3) affected the defendant’s substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993). When these factors are
met, this Court may exercise its discretion and correct the error if it “seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id. at
736. To preserve an issue for appeal, a party “must articulate the specific nature of
his objection . . . so that the district court may reasonably have an opportunity to
consider it.” United States v. Carpenter, 803 F.3d 1224, 1237 (11th Cir. 2015); see
also United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007) (stating that a
party must object in a manner “sufficient to apprise the trial court and the opposing
party of the particular grounds upon which appellate relief will later be sought”).
Although Miller objected to the sealing of the documents and the denial of copies
of those documents on grounds under Brady v. Maryland, 373 U.S. 83 (1963), he
3 Case: 16-11690 Date Filed: 05/30/2019 Page: 4 of 7
did not object that such action deprived him of a right to a public trial or of the
right to a complete defense as he does now. Thus, we review for plain error.
The district court did not plainly err in sealing the investigation documents
and adopting procedures limiting access to those documents. The presumption of
openness in court proceedings granted by the Constitution “may be overcome only
by an overriding interest based on findings that closure is essential to preserve
higher values and is narrowly tailored to serve that interest.” See Press-Enterprise
Co. v. Superior Court of California, 464 U.S. 501, 510 (1984). “The interest is to
be articulated along with findings specific enough that a reviewing court can
determine whether the closure order was properly entered.” Id. Here, the district
court sealed the documents and adopted proposed disclosure procedures “for good
cause shown” in the government’s motions. In doing so, it agreed with the
government’s argument that Miller had minimal interest in the materials because
they were likely irrelevant and inadmissible under Federal Rules of Evidence
(“FRE”) 401 and 402, and because the government would not call certain
individuals referenced in those investigation documents at trial. Moreover, the
court also adopted the government’s position that its interest was grounded in
protecting sensitive non-public information contained in an ongoing investigation
involving government agents and confidential informants. At base, the district
court found that closure was essential to preserve the government’s higher interest
4 Case: 16-11690 Date Filed: 05/30/2019 Page: 5 of 7
and its adoption of procedures preventing disclosure of information solely related
to the investigation ensured that the order was narrowly tailored to serve that
interest. 1 Moreover, because Miller was permitted to access the investigation
documents under the adopted disclosure procedures, the district court did not
violate Miller’s common-law right to access with regard to those documents. See
Romero v. Drummond Co., 480 F.3d 1234, 1246 (11th Cir. 2007). Accordingly,
the closure order was properly entered.
In addition, the district court did not commit plain error in denying Miller’s
request for copies of the investigation documents. First, Miller claims that the
court applied an exceedingly narrow definition of relevance to determine if the
investigation documents should be disclosed to him. But Miller never identified
specific information within the documents to grant the court the opportunity to
determine if such documents were relevant, either as impeachment or direct
evidence, to the elements of the crime or to support a defense. As extensively
discussed in submitted filings and pretrial conferences, information in the
documents was determined to be relevant to Miller’s defense only as to a
1 Relying largely on United States v. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir. 2005), Miller argues that the court was required to explicitly articulate in its order the overriding interest and findings that the sealing order was essential and narrowly tailored. But in Ochoa-Vasquez, neither the “district court’s sealing orders nor its denials of access to court records articulated the reason for the closure or the evidence that supported the need for closure.” Id. at 1030 (emphasis added). Here, however, the court’s adoption of the government’s submission is sufficient support for the need for closure and enables this Court to adequately determine whether the sealing order was properly entered. 5 Case: 16-11690 Date Filed: 05/30/2019 Page: 6 of 7
confidential informant’s alleged role in the charged conspiracy before Miller’s
arrest. The court’s in camera review, therefore, was limited to determining
whether the confidential informant worked for the DEA before Miller’s arrest,
such that, as part of Miller’s entrapment defense, it would tend to prove
government inducement of the crime. Because the court’s review revealed that it
was implausible for the documents to tend to show this fact, it was deemed not
relevant. Thus, the court did not err in determining that the alleged relevancy of
the documents was not a sufficient reason to unseal the documents and grant Miller
copies.
Second, Miller claims that the failure to provide him with copies of these
documents violated his right to present a complete defense. See Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (stating that the Constitution guarantees a
right to present a complete defense). But Miller’s right to present a complete
defense was not violated because Miller had access to all of the sealed documents
and was not prohibited from making a defense based on the information contained
in those documents. Miller’s decision not to present a defense at trial based on the
information in the investigation documents appears to have been a strategic choice
to avoid further unfavorable evidence by the government.
Finally, the district court did not err in stating that Miller could potentially
open the door to unfavorable evidence obtained by the government if he elicited
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testimony regarding the confidential informant’s work for the DEA after his arrest.
The government had repeatedly indicated that it would not introduce the
unfavorable evidence, which was obtained as the result of the informant’s work for
the DEA after Miller’s arrest. Because the evidence was pertinent to the
informant’s work for the DEA after Miller’s arrest, the district court did not
commit plain error in giving Miller such a warning or in deferring the issue of the
admissibility of the government’s rebuttal evidence for trial.
AFFIRMED.