Bench Memos

Law & the Courts

Debating Sealed Evidence

In a ruling today (in U.S. v Harris), a divided panel of the Ninth Circuit held that the district court improperly applied “leader” and “guardian” sentencing enhancements to a man, Joseph Lavern Harris, who, along with his live-in girlfriend, pled guilty to sexually exploiting the girlfriend’s minor daughter. The panel consisted of Clinton appointees: Judge Margaret McKeown, joined by Judge Richard Paez, wrote the majority opinion, and Judge Susan Graber dissented.

Graber’s main charge in her dissent is that the majority, despite reciting its obligation to review the district court’s factual findings under the very deferential “clear error” standard, in fact rejected findings that were not clearly erroneous. It does indeed seem difficult to understand why the fact that the victim “called Harris ‘dad’ on at least one occasion” would not, in the absence of powerful countervailing evidence, be enough to sustain the district court’s finding that he had enough of a relationship to satisfy the “guardian” enhancement.

But what I find more frustrating about McKeown’s opinion is that she fails to respond at all to the sealed evidence that Graber refers to.

Graber states that “we know, from sealed materials, that [Harris] was left alone with the victim more than once.” Without addressing what Graber says, McKeown asserts that Harris’s girlfriend “did not let him be home alone with [her daughter],” and she cites, and seems to credit, the girlfriend’s report that “she never left [her daughter] home alone with Harris.” So who has the facts right?

Similarly, on the “leader” enhancement, Graber states that sealed materials “buttress” the “inference” that it was Harris’s “idea to sexually abuse” the daughter and that those materials “also permit the inference that Defendant influenced the mother to allow him to abuse the victim and thus organized and influenced her participation in the offense.” Again, McKeown offers no response to explain why she disagrees.

Dealing with sealed information obviously requires sensitive handling. But I don’t see how McKeown can justify not responding to Graber’s points.


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