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United States v. Wheeler

United States District Court, D. Colorado

July 9, 2019



          William J. Martinez, United States District Judge.

         This matter is before the Court on Defendant Kenneth Royal Wheeler's (“Defendant” or “Mr. Wheeler”) Supplemental Motion to Seal and Expunge (“Motion”). (ECF No. 324.) For the reasons set forth below, Defendant's Motion is denied.


         On March 12, 2012, Defendant posted a statement on his Facebook page urging his “religious followers” to, inter alia, “kill cops[, ] drown them in the blood of thier [sic] children, hunt them down and kill their entire bloodlines, ” and provided “a list of people to kill.” (ECF No. 62-3.) On March 16, 2012, Defendant again urged his religious followers to, inter alia, “commit a massacre in the [S]tepping [S]tones preschool and day care, just walk in and kill everybody . . . if you have to bomb, em, [sic] set them on fire.” (ECF No. 62-2.) Defendant lived “two to three blocks” away from the Stepping Stones daycare center. (ECF No. 198 at 52.)

         On September 26, 2013, a jury convicted Defendant of two counts of transmitting a threat in foreign commerce under 18 U.S.C. § 875(c) based on these Facebook posts. (ECF Nos. 114, 181.) On January 15, 2015, the Tenth Circuit reversed Defendant's conviction due to a change in law that invalidated the jury instruction on § 875(c), and remanded the case for a new trial.[1] United States v. Wheeler, 776 F.3d 736; (ECF No. 272.) The Government decided not to retry Defendant as he had already “served most of his anticipated sentence.”[2] (ECF No. 315 at 2; see also ECF No. 324 at 3.) Accordingly, the Government filed an Unopposed Motion to Dismiss the Indictment, which the Court granted on February 23, 2016. (ECF Nos. 304, 306.)

         In 2017, Defendant sent various pro se letters and motions to the Court. (See, e.g., ECF Nos. 308, 309, 310, 312, 314.) Among his filings was a “motion to seal and expunge[ ] [Defendant's] entire American criminal record, and a complete reinstatement of all rights (american and human}.” (ECF No. 309.) The only other information provided in the letter was Defendant's full name, date of birth, and social security number. (Id.)

         On May 9, 2017, the Court directed the Government to respond to Defendant's motion to seal and expunge. (ECF No. 311.) In its response, the Government opposed Defendant's motion. (“Response”; ECF No. 315.) On June 13, 2017, Defendant replied to the Government, and the Court subsequently appointed him counsel. (ECF Nos. 318, 319.)

         On November 7, 2017, the Court ordered Defendant's counsel to file a status report regarding the various letters and motions Defendant had recently sent to the Court. (ECF No. 322.) In the ensuing status report, Defendant's counsel informed the Court that her “[a]ttempts to assist Mr. Wheeler have been largely unsuccessful” and that it was “unclear” which letters and motions he wanted to still pursue. (ECF No. 323 at 2.) Counsel noted that when she informed Defendant that “she could and would file a supplemental motion addressing expungement[, ] Mr. Wheeler appeared to accept [her] assistance.” (Id.)

         Defendant's counsel subsequently filed the Motion (ECF No. 324), which the Court construes to be a supplement to Defendant's previous pro se motion to seal and expunge (ECF No. 309).[3] In the Motion, as supplemented, Defendant seeks to seal this case's record and expunge his underlying arrest records. (See ECF No. 324 at 2-3, 5.) The Court will address each of Defendant's requests in turn.


         A. Legal Standard for Sealing Court Records

         “Courts have long recognized a common-law right of access to judicial records.” Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978)). “This right is premised upon the notion that transparency and public monitoring of the courts foster respect for the legal system and maintain the integrity of the judicial process.” United States v. Nacchio, 2009 WL 10706270, at *1 (D. Colo. Mar. 17, 2009) (citing United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985)).

         “The public's ability to review the factual basis of this Court's decisions and evaluate the Court's rationale is critical, as it allows the public to determine whether the Court is properly fulfilling its role as a neutral arbiter.” Nacchio, 2009 WL 10706270, at *1 (citing United States v. McVeigh, 119 F.3d 806, 814 (10th Cir. 1997)). Indeed, “Judges have a responsibility to avoid secrecy in court proceedings because ‘secret court proceedings are anathema to a free society.'” United States v. Carnagie, 2006 WL 8429705, at *1 (D. Colo. Sept. 26, 2006) (quoting M.M. v. Zavaras, 939 F.Supp. 799, 801 (D. Colo. 1996)).

         “This right [of access], however, is not absolute.” Mann, 477 F.3d at 1149. Rather, the “presumption of access . . . can be rebutted if countervailing interests heavily outweigh the public interests in access.” Id. “The party seeking to overcome the presumption [of access] bears the burden of showing some significant interest that outweighs the presumption.” Id.

         Moreover, “[a]ll courts have supervisory powers over their own records and files. Thus a court, in its discretion, may seal documents if the public's right of access is outweighed by competing interests.” Riker v. Fed. Bureau of Prisons, 315 Fed.Appx. 752, 755 (10th Cir. 2009). “Whether judicial records and other case-related information should be sealed or otherwise withheld from the public is a ...

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