United States v. Walker

          ORDER UNSEALING, IN PART, HEARING TRANSCRIPTS

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         This 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. ## 1107-1109).

         I. BACKGROUND

         On July 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. ## 447-79.)

         To assist them in sentencing and other post-conviction matters, the IRP-6 elected to retain another CSFC member, Ms. Gwendolyn Lawson^[1], 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.)

         As Mr. 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.)

         Before 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.)

         After 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.

         Although 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.

         After 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. # 1082.)

         Mr. 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.^[2] 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 1).

         There 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.^[3] (Doc. ## 851, 883.)

         For 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. # 1114.)

         CSFC 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.

         II. LEGAL STANDARD

         The 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 (1978).

         However, 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.

         The 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.

         There 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).

         Once 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 755.^[4]

         Finally, 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).

         III. ANALYSIS

         The 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.)

         Through 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 restricted.

         A. CIRCUMSTANCES HAVE NOT CHANGED SIGNIFICANTLY

         First, 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, 2019), http://www.digitaljournal.com/pr/4481574 [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 remain sealed.

         B. WEIGHING THE PUBLIC'S RIGHT TO ACCESS JUDICIAL TRANSCRIPTS AGAINST THE RISKS TO THE WITNESSES

         In 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 ...