United States District Court, D. Colorado
ORDER UNSEALING, IN PART, HEARING
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter is before the Court on remand from the Tenth Circuit
Court of Appeals (Doc. # 1124), which vacated this
Court's Order (Doc. # 1114) denying a Motion by the
Colorado Springs Fellowship Church (“CSFC”) to
Unseal Records (Doc. # 1106) that this Court has restricted.
After reviewing the Tenth Circuit's Order and Judgment,
the Court unseals, in part, the hearing transcripts (Doc. ##
2, 2009, Mr. Gary Walker and five other defendants (together,
the “IRP-6”) were charged by indictment with
conspiracy to commit wire and mail fraud. (Doc. # 1.) All of
the IRP-6 members belonged to the same church-CSFC-which is
led by Pastor Rose Banks. Mr. Walker and the other defendants
were assigned court appointed attorneys. (Doc. # 15.)
However, before trial, they all terminated the employment of
their respective attorneys and proceeded pro se.
(Doc. # 361.) After a full jury trial, the members of IRP-6
were found guilty and convicted on multiple counts. (Doc. ##
assist them in sentencing and other post-conviction matters,
the IRP-6 elected to retain another CSFC member, Ms.
Gwendolyn Lawson, as their attorney. The IRP-6 also
retained Mr. Lowther, an attorney located in Georgia (Doc. #
1108 at 159), because Ms. Lawson had very little federal
court experience (id. at 164). On July 23, 2012,
with the assistance of Ms. Lawson and Mr. Lowther, Mr. Walker
participated in his sentencing hearing. The Court sentenced
Mr. Walker to 135 months in prison. (Doc. # 782.)
Walker served his sentence, however, he began questioning
some of the teachings of Pastor Banks and the amount of
control she exerted over his life. Eventually, Mr. Walker
left CSFC. See generally (Doc. # 1108 at 149-157).
He then terminated Ms. Lawson's and Mr. Lowther's
representation of him and obtained other counsel. On October
5, 2015, in coordination with his new counsel, Mr. Walker
filed a Motion and Memorandum of Law Filed Pursuant to 28
U.S.C. § 2255. (Doc. # 902.) He claimed that (1) his
waiver of his right to counsel before the trial was neither
informed nor voluntary; and (2) he received ineffective
assistance of counsel at sentencing. (Id.) The Court
granted Mr. Walker's § 2255 petition and scheduled a
three-day evidentiary hearing. (Doc. # 995.)
the hearing commenced, Mr. Walker's counsel requested
that the hearing be closed. After carefully considering the
importance of public access to judicial proceedings, the
Court denied the request. The Court explained that counsel
had “not met the burden . . . that is necessary to
restrict the public's right to access” the hearing.
(Doc. # 1107 at 9.)
hearing the testimony of sixteen witnesses during the course
of the § 2255 hearing, the Court concluded that Mr.
Walker's 28 U.S.C. § 2255 habeas petition should be
granted because the evidence demonstrated that Mr.
Walker's counsel, Ms. Lawson, represented actively
conflicting interests and that this conflict actually and
adversely affected her performance on his behalf. These
conflicts included her duties to her other clients, and
possibly her allegiance to her pastor, and prevented her from
presenting evidence that might have affected the Court's
determination about whether to assess a 4-level aggravating
role enhancement against Mr. Walker under Section 3B1.1(a) of
the Sentencing Guidelines.
Mr. Walker was also represented by another attorney at
sentencing, Joshua Lowther, the evidence adduced during the
§ 2255 hearing did not allow the Court to find that Mr.
Lowther had sufficient authority as counsel to overcome the
effect of Ms. Lawson's actual conflict. Strickland v.
Washington, 466 U.S. 668, 692 (1984); Cuyler v.
Sullivan, 446 U.S. 335, 348-350 (1980); see also
United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir.
1990) (holding that “defense counsel's performance
was adversely affected by an actual conflict of interest if a
specific and seemingly valid or genuine alternative strategy
or tactic was available to defense counsel, but it was
inherently in conflict with his duties to others . . .
.”). In this specific circumstance, prejudice is
presumed and need not be proven. Strickland, 466
U.S. at 692.
the § 2255 hearing, Ms. Lawson, acting on behalf of Mr.
Walker's other five codefendants, moved to continue the
resentencing hearing so that she could present rebuttal
testimony in opposition to Mr. Walker's requested
sentence reduction. (Doc. # 1075.) The Court denied Ms.
Lawson's motion and proceeded with Mr. Walker's
resentencing, reducing his sentence to 70 months. (Doc. #
Walker then moved to restrict public access to the
transcripts of the § 2255 hearing to preserve the safety
of the witnesses. (Doc. # 1080.) As a result of both the the
original trial and § 2255 hearing, the Court became
privy to facts and circumstances that are pertinent to
whether the transcripts should be unsealed. The record shows
that Pastor Banks and some CSFC members have engaged in a
consistent pattern of harassment against anyone who does not
strictly comply with the demands of Pastor
Banks. Moreover, at the conclusion of her
testimony, Ms. Lawson, who was subpoenaed to testify at the
§ 2255 hearing, surreptitiously substituted a
“dummy binder” of the same size and color as the
Court's Exhibit Notebook, but which contained only tabbed
dividers and blank sheets of paper, for one of the
Court's Exhibit Notebooks and walked out of the courtroom
with the Court's Exhibit Notebook. See (Exhibit
had previously been similar unprofessional activity on the
part of the Defendants which led this Court to conclude that
CSFC members and Pastor Banks had no respect for the rights
of others, especially those with whom they disagreed. For
example, on the first day of trial after selection of the
jury, the Court directed the Defendants to turn in all of the
jury rosters, which contained the names and addresses of the
jurors. Defendants violated the Court's order and removed
one of the rosters from the Courtroom. The roster was
returned the next day and the Defendants swore that they had
not copied it. However, after the jury returned a verdict of
guilty as to all defendants, in violation of this Court's
explicit directive that the parties could not contact any of
the jurors, members of CSFC, acting on behalf of the IRP-6,
began harassing the jurors. One of the jurors reported
CSFC's harassment to the Court. The Court then issued an
Order sua sponte, reiterating that the defendants
and any of their representatives are prohibited from
contacting members of the jury. (Doc. # 582.) Additionally,
as a condition of their release prior to sentencing, the
defendants agreed that they would refrain from any additional
contact with jurors absent a court order. (Doc. # 592.)
However, even after this stipulation,
members of CSFC acting on behalf of the defendants continued
to harass multiple jurors. (Doc. ## 851, 883.)
these reasons, the Court granted Mr. Walker's request and
placed all transcripts from Mr. Walker's § 2255
proceeding (Doc. ## 1107-1109) under a Level 2 Restriction
(Doc. # 1085). The Court subsequently unsealed the portions
of the transcript which contained testimony of Ms. Lawson.
(Doc. # 1090.) CSFC moved to unseal the remaining fifteen
transcripts, arguing both that it had a private interest in
the transcripts of the testimony from the hearing because the
witnesses impugned CSFC's reputation and that it had a
general First Amendment and common law public right of access
to judicial records. (Doc. # 1106.) The Court denied
CSFC's motion and kept the transcripts under seal. (Doc.
appealed this Court's decision to the Tenth Circuit.
(Doc. # 1115.) After considering the briefs and the record,
the Tenth Circuit vacated this Court's Order (Doc. #
1114) denying CSFC's previous Motion to Unseal Records.
(Doc. # 1106.) The Court now considers the Tenth
Circuit's instructions in its Order on remand.
United States has a long tradition of making its courts open
to the public. In fact, “[j]udicial records are public
documents almost by definition, and the public is entitled to
access by default.” Riker v. Fed. Bureau of
Prisons, 315 Fed.Appx. 752, 755 (10th Cir. 2009)
(quoting Kamakana v. City & Cty. of Honolulu,
447 F.3d 110, 121 (2d Cir. 2006)). Both the accused and the
public benefit from this right to access court proceedings
because public access helps promote fair trials.
Press-Enter. Co. v. Superior Court, 478 U.S. 1, 7
(1986). An appearance of fairness, in turn, heightens public
respect for the judiciary. Globe Newspaper Co. v.
Superior Court, 457 U.S. 596, 606 (1982). Furthermore,
“[t]he institutional value of the open criminal trial
is recognized in both logic and experience.”
Id. Public access to the court system extends not
only to public proceedings, but to judicial records as well.
Nixon v. Warner Commc'ns, 435 U.S. 589, 596
this right of public access to the courts and its records is
not absolute. Id. at 598. In some cases, the right
to an open trial can give way to other interests. Davis
v. Reynolds, 890 F.2d 1105, 1109 (10th Cir. 1989). An
accused's right to a public trial must be
“carefully balanced against the government's
competing interest in protecting vulnerable witnesses from
embarrassment and harm.” Id. Courts have
concluded that the presumption of public access “may be
overcome only by an overriding interest based on findings
that closure is essential to preserve higher values . .
.” Press-Enter. Co., 478 U.S. at 10.
decision to restrict public access “is one best left to
the sound discretion of the trial court, a discretion to be
exercised in light of the relevant facts and circumstances of
the particular case.” Nixon, 435 U.S. at 599.
“Every court has supervisory power over its own records
and files, ” and courts may deny public access to court
files if the files might become vehicles for improper
purposes, such as “to gratify private spite or promote
public scandal.” Id. at 598.
is “no comprehensive formula” to guide trial
courts in determining when public access to judicial
documents is properly limited because “[t]he analysis
of the question of limiting access is necessarily
fact-bound.” United States v. Hickey, 767 F.2d
705, 708 (10th Cir. 1985) (citing Nixon, 435 U.S. at
598). As the Tenth Circuit explains in its Order and
Judgment, courts have articulated three relevant factors to
consider. (Doc. # 1124 at 20-21.) First, when the district
court uses “the sealed documents to determine
litigants' substantive legal rights, ” there is a
strong presumption of public access. United States v.
Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (internal
quotation marks omitted). Second, if a criminal hearing is
conducted without a jury present, public access is an
important way to hold the judge accountable. Press-Enter.
Co., 478 U.S. at 12-13. Third, if a court proceeding was
already made public, the party's interest in sealing the
transcripts of the testimony is diminished. Mann v.
Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007).
the trial court has exercised its sound discretion in denying
public access to certain judicial records, the trial court is
then responsible for narrowly tailoring its restrictions.
Press-Enter. Co., 478 U.S. at 10. Any trial court
order must be “specific enough that a reviewing court
can determine whether the closure order was properly
entered.” Id. at 9-10. Yet “at times the
sensitive nature of the sealed judicial documents may warrant
the court justifying the lack of public access in conclusory
terms.” Riker, 315 Fed.Appx. at
after a court record is sealed and a motion is made to remove
that seal, “the district court should closely examine
whether circumstances have changed sufficiently to allow the
presumption allowing access to court records to
prevail.” Miller v. Ind. Hosp., 16 F.3d 549,
551-52 (3rd Cir. 1994).
Tenth Circuit's Order and Judgment instructs this Court
to conduct additional analysis before determining that any
witness testimony currently under Level 2 restriction (Doc.
## 1107-1109) should be kept sealed. First, because some time
has elapsed since the Court issued its Orders restricting
access to the hearing transcripts, the Tenth Circuit
indicates that the Court “may need to consider whether
circumstances have changed” such that unsealing the
transcripts is now appropriate. (Doc. # 1124 at 27.) Second,
the Tenth Circuit instructs this Court to analyze the facts
of the instant case in light of the “the strong
presumption in favor of the public right of access” to
judicial records, which is heightened when courts rely on
sealed testimony to make decisions, those decisions occur in
the absence of a jury, and the information that is sealed has
already been revealed in open court. (Id. at 24.)
the lens of this legal analysis, the Tenth Circuit instructs
this Court to determine if “a narrower alternative to
restricting access to the full transcript” exists.
(Id. at 27.) Upon analyzing the relevant factors
identified by the Tenth Circuit, it is evident that the
safety of many of the witnesses is still at risk, and
therefore, some, but not all, of the testimony must remain
CIRCUMSTANCES HAVE NOT CHANGED SIGNIFICANTLY
the Court considers the extent to which circumstances have
changed since its initial Orders restricting access. (Doc. ##
1085, 1114.) The safety and welfare risk to many of the
witnesses remains high. A Just Cause, an organization founded
by CSFC to act on behalf of and in coordination with the
IRP-6, has engaged in a campaign to harass all involved with
this case, and the Court has no reason to conclude that it
will halt its pattern of harassment. As recently as October
22, 2019, A Just Cause alleged, without evidence, that the
Court is concealing misconduct and “secretly used her
court to conduct personal attacks against [IRP-6's]
Pastor (Rose Banks) and Church (Colorado Springs Fellowship
Church).” A Just Cause, Colorado Federal Judge and
Prosecutor Entangled in Misconduct Cover-Up (Oct. 22,
[https://perma.cc/68RS-CNTM]. If all witness testimony from
the § 2255 hearing were to be unsealed, the Court is
concerned that CSFC would turn its attention away from the
Court and begin harassing these witnesses. Therefore, the
Court determines that circumstances have not changed
significantly, and as such, those witnesses who testified
about CSFC must remain protected and their testimony will
WEIGHING THE PUBLIC'S RIGHT TO ACCESS JUDICIAL
TRANSCRIPTS AGAINST THE RISKS TO THE WITNESSES
order to weigh the public's right to access the judicial
transcripts at issue against the risks to the witnesses, the
Court must first apply the relevant legal standards,
including the additional factors identified by the Tenth
Circuit, to the instant case. Second, the Court has reviewed
the testimony of the ...