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United States v. Pickard

United States District Court, D. Kansas

December 11, 2018

United States of America, Plaintiff,
v.
William Leonard Pickard and Clyde Apperson, Defendants.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE.

         By 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.

         The 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.

         The 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).

         The 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).

         Given 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).

         The 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 taxpayer-identification number;
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. ...

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