United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S MOTION TO SEAL AND
William J. Martinez, United States District Judge.
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.
FACTUAL & PROCEDURAL BACKGROUND
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.)
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. 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.” (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.)
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.)
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.)
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.)
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). 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
MOTION TO SEAL
Legal Standard for Sealing Court Records
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)).
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)).
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.
“[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 ...