United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten Chief United States District Judge
William Leonard Pickard and Clyde Apperson were convicted of
conspiracy to manufacture lysergic acid diethylamide (LSD) in
violation of 21 U.S.C. §§ 841(a)(1)(A), (b)(1))A),
and 846, and possession of LSD with intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).
The government's case against Pickard and Apperson was
supported by an accomplice and DEA confidential informant
(CI), Gordon Todd Skinner. As a part of the continuing
challenge to their convictions, the defendants seek the
unsealing of Skinner's CI file compiled by the DEA.
During the trial of the action, the court ordered the
government to give a copy of the CI file to the defense. A
copy of the file was also submitted to the court, which was
placed under seal.
present action, the defendants seek the unsealing of the CI
file held by the court, asserting a common-law right of
access to the document as a judicial record. Simultaneously,
the defendants have undertaken Freedom of Information Act
(FOIA) litigation in other courts, seeking to obtain other
documents held by the DEA regarding Skinner. The court denied
the request, finding that the defendants had failed to show
any substantial need for the document. United States v.
Pickard, No. 00-40104-01/02-RDR, 2012 WL 1658899, *3 (D.
Kan. May 9, 2012). The Tenth Circuit subsequently concluded
that the burden was on the government to show why the matter
should remain under seal.
remand, the court authorized the unsealing of portions of the
CI file which had become public information. The court
determined that the government had met its burden for
withholding other documents in the CI file, which it
catalogued by reference to a Vaughn index which it
had also submitted in response to a FOIA action commenced by
defendants in California. See Vaughn v. Rosen, 484
F.2d 820, 827-28 (D.C. Cir. 1973).
appeal, the Tenth Circuit determined that a more
particularized determination was required for withholding
production, and that the summary of Skinner's CI file
submitted by the government was insufficient to permit such a
review. United States v. Apperson, 642 Fed.Appx. 892
(10th Cir. 2016). In particular, the court noted that the
Vaughn index accepted by this court was later found
to be inadequate in the California FOIA action. See
Pickard v. Department of Justice, No. 06-00185 CRB, 2014
WL 1868841 (N.D. Cal. May 7, 2014).
forward, the government must show a significant interest
which outweighs the presumption in favor of public access to
judicial records. See Mann v. Boatright, 477 F.3d
1140, 1149 (10th Cir. 2007). The court must conduct a
fact-specific analysis as to “particular documents or
categories of documents in the CI file.” 642 Fed.Appx.
at 902. Moreover, “the asserted interests for sealing
cannot be generic interests that would apply with equal force
to every case. The government must articulate specific
interests that apply in the context of this case,
and the district court must balance those interests against
the public's interest in access.” Id. at
showing is consistent with requirements for particularity.
See 642 F.3d. Appx. at 903 (citing Wiener v.
FBI, 943 F.2d 972, 987-88 (9th Cir.1991)). Further, the
showing must address with particularity documents in the CI
file which are already in the public domain. See 642
Fed.Appx. at 901 (noting “high salience” of the
matter immediately before the court is the defendants'
Motion Regarding Unsealed Document (Dkt. 784), which asks
that the court docket the Risk Assessment as a separate
pleading. The defendants assert that this is required
“so experts and other witnesses could examine [it] for
indicia of inauthenticity and unreliability.”
(Id. at 1).
defendants claim that “evidence exists that the
‘Risk Assessment' may be inauthentic and
unreliable.” (Id. at 2). The defendants
argue that the issue must be addressed before the court
addresses the production of the remainder of the CI file:
Defendant[s] observe that the issue of inauthenticity of the
“Risk Assessment” should be resolved prior to any
substantive analysis by this Court in response to the Tenth
Circuit's decision, for improprieties in the conduct of
law enforcement strongly influence the public interest factor
of the analysis and may be determinative.
(Dkt. 778 at 3. See also Dkt. 786 at 5).
government opposes the motion on the grounds that the Risk
Assessment has been previously unsealed, and is available to
the defendants for review. The defendants acknowledge the
document is unsealed and in the public domain. (Dkt. 763, at
7, Dkt. 784, at 2). The government further notes that the
defendants have failed to provide any to evidence of supposed
their reply, the defendants argue the Risk Assessment is
suspicious because it references a DEA procedure (Agents
Manual Section 6612.13) for risk assessment that was not
formally adopted while Skinner was actively informing on
them, citing submissions made in Arizona FOIA litigation.
Pickard v. Department of Justice, 11-cv-00443-DCB
(D. Ariz.). They also assert that the DEA generally engaged
in a pattern of falsifying documents, citing to the decision
of the Tenth Circuit resolving their direct appeal,
United States v. Apperson, 441 F.3d 1162, 1207 (10th
Cir. 2006), citing an instance in which a computer file was
deleted as “prompting the Court to conclude ‘this
is perhaps the most serious instance of government
court finds no necessity for placement of the Risk Assessment
on the court's docket. The document itself is not
inherently suspicious. The Risk Assessment does not indicate
when it was produced, other than to indicate that at some
point it was faxed to the United States Attorneys Office in
Topeka, Kansas, on March 4, 2003. The Arizona court
determined that “DEA Agents Manual Section 6612.13 was
first included in the Manual and became effective on June 28,
2001.” Pickard v. Department of Justice,
11-00443-DCB, Dkt. 133 at 8 (D. Ariz. Aug. ...