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Media Alerts - United States v. Pickard & Apperson - 10th Circuit
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November 11, 2013
  United States v. Pickard & Apperson - 10th Circuit
Case Name: United States v. William Leonard Pickard & Clyde Apperson

Headline: Tenth Circuit reverses district court's decision to deny motion to unseal confidential informant records

Area(s) of Law:
Criminal law, Criminal procedure

Issue(s) Presented:
Whether the district court erred in denying defendants' motion to unseal documents sealed during trial.

Brief Summary:
Defendants were charged with multiple drug offenses. At trial, the court ordered that the DEA's file on the testifying confidential informant be sealed. Eight years later the Defendants moved to have the file unsealed during ongoing litigation under the Freedom of Information Act.

On appeal, the Tenth Circuit determined that the court:
1. failed to require the United States to articulate a significant interest in continuing to keep the DEA records sealed;
2. did not apply the presumption that judicial records should be open to the public; and
3. did not consider whether unsealing a redacted version of the DEA records would adequately serve the as yet unarticulated government interest in keeping the records sealed.

Extended Summary:
In 2003, Defendants William Leonard Pickard and Clyde Apperson ("Defendants") were tried before a jury on several drug charges. During the trial, Gordon Todd Skinner ("Mr. Skinner"), testified against the Defendants after acting as a confidential informant for the DEA. At trial, the U.S. District Court for the District of Kansas ordered that the government turn the file over to defense counsel and ordered that the file be sealed. Defendants were convicted.

In 2011, during ongoing litigation under the Freedom of Information Act ("FOIA"), Defendants filed a motion with the district court asking that Mr. Skinner's file be unsealed. Defendants had some of the information contained in the DEA file on Mr. Skinner, but since the file had been sealed, the information could not be used as exhibits. Although the district court had authority over the sealed file and the Defendants' motion was properly made, the district court denied the motion.

Defendants appealed the decision. The Tenth Circuit first determined that the Defendants had the requisite standing and that the motion was not moot. The standard of review of the district court's decision is for an abuse of discretion. In this matter, the circuit court determined that the district court had applied incorrect legal principles thus resulting in an abuse of discretion.

A common-law right exists to have access to judicial records. However, that presumption of openness is overcome when there are countervailing interests that outweigh the public interest in access to such judicial records. When a district court exercises its discretion on such issues, it must weigh this presumption against the competing issues raised by the parties. The party that wishes to overcome the presumption of openness bears the burden of providing the court with reasoning showing that their position outweighs the interest in public access.

The Tent Circuit held that the district court had incorrectly ruled on the Defendants' motion. First, the Government had the burden to articulate to the court why the records should not be made public, but it failed to present a significant interest. While there could be government interests that would justify keeping the records sealed, none were articulated to the district court. Second, the district court did not apply the presumption that judicial records should be open to the public and incorrectly placed the burden on the Defendants. Lastly, the district court did not consider whether unsealing redacted versions of the records would suffice even though the Government had failed to present an interest in keeping the documents sealed.

For these reasons, the Tenth Circuit reversed the district court's decision and remanded the motion for reconsideration.

To read the full opinion, please visit:

Panel: Judges Tymkovich, Ebel, Matheson

Date of Issued Opinion: November 5, 2013

Docket Number: 12-3142 & 12-3143

Decided: Reversed and remanded

William K. Rork, Rork Law Office, Topeka, Kansas for Defendants - Appellants.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff - Appellee.

Author: Ebel

Case Alert Author:
Rikki-Lee G. Ulibarri, UNM School of Law, Class of 2014

Case Alert Circuit Supervisor:
Barbara Bergman, UNM School of Law

    Posted By: Dawinder Sidhu @ 11/11/2013 09:19 AM     10th Circuit  

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