United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
prior order, the court denied defendants' motion alleging
government misconduct in the course of the extensive
collateral proceedings following their convictions, but
granted their request, under the common law right of access
to judicial records, to unseal a confidential informant file
which had been filed with the court. The court granted the
government's request to stay the unsealing of the file.
Both parties appealed from the decision of the court.
government's appeal was dismissed after the government
served notice that it intended to provide a copy of DEA file
for the informant, Thomas Skinner. In this court, the
government then submitted a Motion for Order (Dkt. 826),
asking that the court recognize that materials supplied to
the court and the defendants satisfies the earlier direction
to unseal the file. The stay previously entered by the court
remains in place.
matter is now before the court on this motion, as well as a
recent Motion for Order (Dkt. 828), which states that in the
ongoing appeal the Tenth Circuit has inquired of the
government as to “any effort it has made to ask the
district court to lift its stay of the unsealing order and
decide the government's Motion for Order.” (Dkt.
828, at 4). Based on this directive, the government states
that “it is necessary for the court to enter orders
addressing and resolving the government's pending
motion.” (Id. at 4-5).
defendants respond by observing that, while the Tenth Circuit
inquired about the issue, it did not mandate any lifting of
the stay. (Dkt. 827, at 2). Defendants argue this court
“is precluded from acting on the Government's
motion until return of the mandate, ” and thus
“[t]he proceeding is not properly before the District
Court.” (Id.) Subsequently, however,
defendants suggest that the court does have jurisdiction over
the government's motion-and should deny it-because the
“dismissal of the Government appeal expressly acted as
the mandate, and returned the matter to the status quo in the
District Court.” (Id. at 6).
the dismissal of the government's appeal in No. 17-3267,
the court finds that it has jurisdiction to determine whether
the government is, or is not, in compliance with its order of
November 16, 2017. The Tenth Circuit's Order dismissed
the case, which “eliminates the cross-appeal
aspect” as to the remaining appeals. (Dkt. 825).
Expeditious resolution of the government's motion may
assist in the Tenth Circuit's treatment of the
government's request, in the remaining two appeals, to
supplement the record with a copy of the unredacted, sealed
Skinner file. Further, the issues in the remaining appeals by
defendants do not appear to substantially overlap with those
surrounding the Skinner CI file. Indeed, in generally
rejecting any need for the government to supplement the
record on appeal by providing a copy of the Skinner file, the
defendants themselves observe that the Tenth Circuit's
Order of December 7, 2018 “suggest[s] its irrelevance
to the issues on appeal.” (Dkt. 827, at 3).
government's prior Notice of Intent to Comply (Dkt. 823),
filed immediately before the Motion for Order Recognizing
Compliance, indicated that it would provide the full Skinner
DEA file, with certain redactions “as required by Rule
49.1, and with respect to non-content law enforcement
identifiers and indexing information, which are
‘procedures for law enforcement
investigation.'” (Dkt. 823, at 2 (quoting
Skinner v. U.S. Dep't of Justice, 893 F.Supp.2d
109, 114 (D.D.C. 2012), aff'd sub nom. Skinner v.
Bureau of Alcohol, Tobacco, Firearms & Explosives,
No. 12-5319, 2013 WL 3367431 (D.C. Cir. May 31, 2013)). The
government then indicated that planned to redact the
following information from the DEA file:
a. the last four digits of the social-security number and
b. the year of the individual's birth;
c. the minor's initials;
d. the last four digits of the financial-account number;
e. the city and state of the home address; f. NADDIS, NCIC
and III numbers;
g. Confidential Source (CS) numbers; h. DEA Program codes; i.