United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
jury's verdict in this case did not satisfy the
parties' appetite for litigation. Defendant Craig
Broombaugh now has asked the court to unseal the transcript
of the testimony of two witnesses who testified at trial: Mr.
Jeffrey Comparin and Dr. Arthur Berrier. During trial, the
court issued an order granting Mr. Broombaugh's motion to
issue trial subpoenas to the two witnesses, employees of the
Drug Enforcement Agency. See Doc. 1003. This Order
explained, in substantial detail, the factual connection
between both witnesses and an alleged Controlled Substance
Analogue that the government had chosen to put at issue in
the Indictment against Mr. Broombaugh. Id. at 1-4.
Later, as part of his defense, the court permitted Mr.
Broombaugh's counsel to question both Mr. Comparin and
Dr. Berrier over the government's objections. After their
testimony had concluded, the government made an oral motion
asking the court to seal the transcript of their testimony.
The government explained that it wanted to preserve the
opportunity to vindicate its objections to the subpoenas and
the testimony in a cross-appeal. Because the issues arising
from the two witnesses' testimony were intricate and not
easily postured for review by an appellate court, the court
granted the government's motion. It thus sealed the
testimony pending appeal.
related issues have resurfaced in Mr. Broombaugh's
motion, Doc. 1056. It asks the court to remove the seal it
imposed against releasing Mr. Comparin and Dr. Berrier's
testimony. Mr. Broombaugh's motion argues that the
rationale for the original sealing order expired when the
jury acquitted him and his only co-defendant and so, the
United States cannot cross-appeal. He also notes the absence
of authority for the government to take a direct appeal of
the issue. See Doc. 1056 at 1-2 (citing 18 U.S.C.
§ 3731). The government's Response to this motion,
Doc. 1075, never contests that it lacks the wherewithal to
Should the court unseal the transcript of the two
Circuit has explained, the federal courts “have long
recognized a common-law right of access to judicial records .
. .” Colony Ins. Co. v. Burke, 698 F.3d 1222,
1241 (10th Cir. 2012). As one might expect, though, this
right is not absolute. Id. (citing Mann v.
Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007)).
Instead, it consists of a presumption favoring access and, to
overcome that starting point, requires a party hoping to
block public access to establish “countervailing
interests [that] heavily outweigh the public interest in
access.” Mann, 477 F.3d at 1149 (citation and
internal quotation marks omitted). Any court concluding that
sufficient “countervailing interests” exist to
block access must identify those interests explicitly, and
then support them with findings that are “specific
enough [so] a reviewing court can determine whether the
closure order was properly entered.” Press
Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986).
And any time a court restricts public access, it must
“narrowly tailor[ ]” any restrictions it imposes.
United States v. Kaufman, No. 04-40141, 2005 WL
2648070, at *1 (D. Kan. Oct. 17, 2005) (quoting Globe
Newspaper Co. v. Superior Court, 457 U.S. 596, 607
comes to criminal trials, the presumption favoring access is
Two features of the criminal justice system . . . together
serve to explain why a right of access to criminal
trials in particular is properly afforded protection by
the First Amendment. First, the criminal trial historically
has been open to the press and general public. . . .
Second, the right of access to criminal trials plays a
particularly significant role in the functioning of the
judicial process and the government as a whole. Public
scrutiny of a criminal trial enhances the quality and
safeguards the integrity of the factfinding process, with
benefits to both the defendant and to society as a whole.
Moreover, public access to the criminal trial fosters an
appearance of fairness, thereby heightening public respect
for the judicial process. And in the broadest terms, public
access to criminal trials permits the public to participate
in and serve as a check upon the judicial process-an
essential component in our structure of self-government. In
sum, the institutional value of the open criminal trial is
recognized in both logic and experience.
Globe Newspaper, 457 U.S. at 605-06.
the burden it faces by opposing Mr. Broombaugh's motion
to unseal, the United States argues the court should leave
the transcript of Mr. Comparin and Dr. Berrier's
testimony sealed because the “DEA has a significant
interest in preserving its privileges, and that interest
outweighs the public's need for [a] limited
transcript” of the trial. Doc. 1075 at 3. But this
argument presupposes that Mr. Comparin and Dr. Berrier's
trial testimony disclosed privileged material. The government
identifies just one privilege at issue here-the DEA's
deliberative process privilege. The court already has
concluded that this privilege did not reach the emails that
parallel the witnesses' trial testimony. See
generally Doc. 1003 at 4. And the court also has
concluded that even if the subject matter of these emails and
the corresponding trial testimony was protected, the DEA long
ago waived this privilege by disclosing the emails as
Brady material in other cases. Id. (citing
United States v. $177, 844.68 in U.S. Currency, No.
13- civ-100, 12-cv-947, 2015 WL 4227948, at *10-12 (D. Nev.
July 10, 2015)); see also $177, 844.68 in U.S.
Currency, 2015 WL 4227948, at *3 (reciting that the
United States had “produced the DEA emails and Dr.
Berrier's review opinion regarding UR-144 in other cases,
including United States v. Fedida, ” No.
8:12-mj-1457TGW (M.D. Fla. 2012)). The government never
explains why the court should revisit these conclusions.
government then turns to a second argument against access.
According to this argument, the contested testimony took
place in an open courtroom and so the court already has
satisfied the public's right of access. Doc. 1075 at 4.
The transcript of that testimony-in the government's
view-merely recorded the testimony and the public never had a
right to have this testimony “recorded, transcribed, or
broadcast.” Doc. 1075 at 3-4. This argument isn't
persuasive for several reasons.
one, it contradicts the interests that create the
public's right of access in the first place. As the
Supreme Court explained in Globe Newspaper, the
First Amendment protects public access to criminal trials for
many reasons. Historically, the public and press have had
open access to such trials. 457 U.S. at 605. Also, access to
criminal trials “plays a particularly significant
role” in how our government functions. Id. at
606. It enhances informed public scrutiny of the factfinding
process and “fosters the appearance of fairness.”
Id. And last, public access promotes participation
and thus “serve[s] as a check upon the judicial
process.” Id. The government's argument
against access to a transcript of the testimony would confine
the right of access-a right that belongs to all members of
the public-to the number of citizens who could secure seats
in the courtroom's gallery. Such a conclusion would
narrow the value of public access, and that outcome would
contradict the underlying values served by public access.
government's argument also fails to shoulder the burden
that the prevailing standard imposes on it. See
Mann, 477 F.3d at 1149 (“The party seeking to
overcome the presumption [of public access] bears the burden
of showing some significant interest that outweighs the
presumption.” (citation and internal quotation marks
omitted)). The government has not identified even one case
where a federal court has withheld from the public the record
of testimony given during a trial on the merits of a criminal
charge. Indeed, the government cites just two cases involving
any records in a criminal case. Each one involved records
quite different from the trial transcript at issue ...