* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### February 2, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RALPH MERCADO, Defendant-Appellant. No. 05-3035 (D.C. No. 01-CR-20147-01-KHV)

(D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , PORFILIO , and BRORBY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Ralph Mercado appeals the district court’s decision s (1) not to hold defendants in contempt of court for violating the c ourt’s order to seal a forensic-2-

neuropsychological report, and (2) to unseal the re port. We have jurisdiction under 28 U.S.C. § 1291. We affirm the district cou rt’s decision not to impose sanctions for contempt of court, but we reverse its decision to unseal the report and remand for further proceedings.
I. During criminal proceedings in 2002, Mr. Mercado wa s in the custody of the United States Bureau of Prisons (BOP). The dis trict court ordered Mr. Mercado to undergo a forensic neuropsychologica l examination by a BOP psychologist, as permitted by 18 U.S.C. §§ 4241(b) and 4242. Mr. Mercado requested that the psychologist’s report be sealed, and the government did not object. Granting Mr. Mercado’s request, the distri ct court ordered that the psychologist and the medical center’s warden delete the report from the BOP’s computers and network (except that one copy could b e kept on a floppy disk in a sealed envelope) and place all paper copies of the report in a sealed envelope. Mr. Mercado pleaded guilty, and apparently the repo rt was never used in the proceeding. On October 27, 2003, Mr. Mercado discovered an unse aled copy of the report in his regular prison medical file. He noti fied the district court of his discovery. The court construed his letter as a mot ion for sanctions for violating-3-

the court’s order. While the motion was pending, t he BOP found a second unsealed copy of the report in Mr. Mercado’s centra l file. The district court held two hearings in connection with the motion for sanctions and evaluated Mr. Mercado’s request underboth civil and criminal contempt standards. With regard to criminal contempt, the district court found no evidence that the prison officials intentionally di sobeyed the order to seal. As for civil contempt, it found that Mr. Mercado had estab lished the required elements, but it exercised its discretion not to impose sanct ions because the officials had come into compliance and Mr. Mercado suffered no ap parent loss due to the BOP’s failure to comply earlier. The court furtherheld that it had erred originally in ordering that the report be sealed, and it vacat ed its order to seal. Mr. Mercado filed two motions for reconsideration, one through his counsel and another pro se (Mr. Mercado had largely been re presenting himself in the proceedings, but counsel assisted him on a stand-bybasis). In counsel’s motion, he argued that the court had vacated its sealing or der sua sponte, and that the issue of unsealing the report had not been adequate ly briefed prior to the court’s decision. He also argued that his counsel had reas onably believed that the report would not be disseminated throughout the BOP. In h is pro se motion, he requested that the court give him the opportunity t o make corrections to-4-

inaccurate portions of the report or that it re-sea l the report. The court denied the motions for reconsideration. Mr. Mercado appeals.
II.
A. Mr. Mercado argues that the district court erred in denying his motion to hold defendants in contempt of court. “A district court may exercise broad discretion in using its contempt power to assure co mpliance with its orders. This court reviews a district court’s exercise of its di scretion for abuse of discretion.” Rodriguez v. IBP, Inc. , 243 F.3d 1221, 1231 (10th Cir. 2001) (citations o mitted). “Abuse of discretion is established if the districtcourt’s adjudication of the contempt proceedings is based upon an error of law or a clearly erroneous finding of fact.” Id. (quotation omitted). Mr. Mercado complains that the district court did n ot allow him to engage in discovery to determine whether the presence of t he report in his files caused him damages. We note, however, that the district c ourt specifically held that it would not impose sanctions even if the BOP had usedthe report to assign Mr. Mercado to a higher security level. Thus, any information to be gained from discovery would have had no effect on the district court’s decision. Having reviewed the parties’ arguments and the appe llate record, including transcripts of both hearings, we are satisfied thatthe district court did not abuse-5-

its discretion in finding no basis for criminal contempt and in declining to impose sanctions for civil contempt. Particularly, there is nothing to indicate that the district court clearly erred in finding that the BO P’s noncompliance with the order was not deliberate or willful.
B. Mr. Mercado also complains that the district court should not have unsealed the forensic neuropsychological report. He states that the report contains juvenile psychiatric records and information that his counse l improperly disclosed to the BOP psychiatrist. We review the district court’s d ecision to seal or unseal documents for an abuse of discretion. See In re Search of 1638 E. 2nd St. , 993 F.2d 773, 774 (10th Cir. 1993). The neuropsychological examination was made pursuant to 18 U.S.C. §§ 4241 and 4242. As the district court discussed, these statutes do not provide for a right of privacy against the opposing party; in fact, 18 U.S.C. § 4247(c) directs that a report made pursuant to those sectio ns shall be made available to the government’s attorney and the court. Cf. Fed. R. Crim. P. 12.2(c)(2) (specifying that mental examination reports made pursuant to Fe d. R. Crim. P. 12.2(c)(1) shall be sealed and not revealed to counsel except under specified circumstances). And it is common that, unless otherwise restricted, information known to counsel is provided to clients. See, e.g. , Kan. RPC 1.4 (“A lawyer shall keep a client-6-

reasonably informed about the status of a matter an d promptly comply with reasonable requests for information.”). Thus, we d o not believe that the district court abused its discretion in allowing the BOP to have full access to the report. We are concerned, however, that the district court may have acted precipitously in unsealing the report completely. From our review of the record, it does not appear that, prior to ordering the repo rt unsealed, the district court alerted the parties that it was contemplating unsea ling the report or otherwise had the benefit of briefing by the parties that focused on whether the report should remain sealed. In addition, we are concerned about the potential b roader implications of the district court’s decision. On appeal, Mr. Merc ado contends that the report contains juvenile psychological records and information that his counsel should not have disclosed, arguments that he also placed b efore the district court in his pro se motion to seal the juvenile records. The di strict court did not discuss these issues in either its order on the merits or its ord er denying reconsideration. But psychological records, especially juvenile psycholo gical records, can be sensitive documents that not uncommonly are protected from pu blic disclosure. The question before the district court essentially concerned the BOP’s access to the report. See R. Doc. 82 at 6 (“[T]he Court is not aware that he has any right of privacy – as against the BOP – in its contents.”). The district court,-7-

however, further affirmatively declared the report “a matter of public record,” id. Doc. 86 at 2, thereby making it available to the ge neral public. In addition, as a record maintained by the BOP, the report may be subject to release under the Freedom of Information Act. See 28 C.F.R. §§ 513.32, 513.60. Having reviewed the appellate record, we are not satisfied that the district court sufficiently considered the potential harm to Mr. Mercado from a llowing virtually unlimited distribution of the report. For these reasons, we reverse the decision to unsea l the forensic neuropsychological report and remand to the distric t court to further consider (1) to what degree the report should be protected f rom disclosure to anyone other than the BOP and its employees, and (2) any other p otential issues that the parties may identify concerning the complete unsealing of t he report that are not inconsistent with this order and judgment.
III. The judgment of the district court declining to imp ose sanctions for contempt of court is AFFIRMED. The order to unseal the forensic neuropsychological report is REVERSED and REMANDED for further proceedings consistent with this decision, with ins tructions that the district court and the BOP limit access to the report to BOP and c ourt employees in the course of their employment until the district court orders otherwise.-8- Entered for the Court

Paul J. Kelly, Jr. Circuit Judge