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United States v. Broombaugh

United States District Court, D. Kansas

June 26, 2017

CRAIG BROOMBAUGH (10), Defendant.



         A. Background

         The 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.

         Now, 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 appeal.

         B. Should the court unseal the transcript of the two witnesses' testimony?

         As our 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 (1982)).

         When it comes to criminal trials, the presumption favoring access is particularly strong.

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.

         Recognizing 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.

         The 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.

         For 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.

         The 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 ...

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