United States v. Walker

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 23, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 17-1415
(D.C. Nos. 1:15-CV-02223-CMA
GARY L. WALKER, and 1:09-CR-00266-CMA-3)
(D. Colorado)
Defendant - Appellee.

------------------------------

GWENDOLYN MAURICE LAWSON,
DEMETRIUS K. HARPER, CLINTON A.
STEWART, DAVID A. ZIRPOLO, and
KENDRICK BARNES,

Movants - Appellants.

–––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 18-1273
v. (D.C. No. 1:15-CV-02223-CMA
and 1:09-CR-00266-CMA-3)
GARY L. WALKER, (D. Colorado)

Defendant - Appellee.
------------------------------


Collectively, we refer to these five appellants as the “17-1415 Appellants.”
Section II(A) discusses the proper identity of the Movants-Appellants in Case
Number 17-1415. In short, although the notice of appeal also identified David A.
Banks as an appellant, Gwendolyn Maurice Lawson’s representation of Mr. Banks
terminated prior to the motions and notice of appeal she filed on behalf of herself, the
other named Appellants in Case Number 17-1415, and Mr. Banks.
 COLORADO SPRINGS FELLOWSHIP
CHURCH,

Movant - Appellant.
_________________________________

ORDER AND JUDGMENT**
_________________________________

Before BRISCOE, MURPHY, and McHUGH, Circuit Judges.
_________________________________

Gary L. Walker, a former member of the Colorado Springs Fellowship Church

(“CSFC”), was convicted of one count of conspiracy to commit mail fraud arising out of

a business operated by CSFC members. He filed a 28 U.S.C. § 2255 motion, in part

raising a claim of ineffective assistance of sentencing counsel. The district court

convened an evidentiary hearing, at which sixteen witnesses testified, including

Mr. Walker; former CSFC members; and Gwendolyn Maurice Lawson and Joshua

Lowther, counsel for Mr. Walker at sentencing. The district court concluded Ms. Lawson,

who is a member of the CSFC, operated under a conflict of interest because Pastor Rose

Banks of the CSFC dictated counsel’s strategy.

**
After examining the briefs, the appellate appendices, and the restricted
records provided by the government, this panel has determined unanimously that oral
argument would not materially assist in the determination of these appeals. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Federal Rule of
Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
2
 Mr. Walker moved to restrict access to the transcript of his § 2255 hearing,

and the district court granted the motion. Ms. Lawson, on behalf of herself and

Mr. Walker’s codefendants, twice moved to obtain the hearing transcript. The district

court predominantly denied the motions but permitted Ms. Lawson access to the

portion of the transcript containing her own testimony. Ms. Lawson, again on behalf

of herself and Mr. Walker’s codefendants, noticed an appeal, commencing Case

Number 17-1415. Thereafter, the CSFC moved to unseal the transcript. The district

court denied the CSFC’s motion, concluding that releasing the transcript was likely

to result in CSFC members harassing and threatening Mr. Walker, as well as the

former CSFC members who testified at the § 2255 hearing. The CSFC appealed,

thereby initiating Case Number 18-1273.

The 17-1415 Appellants and the CSFC argue to this court that the strong

presumption in favor of the public right of access to judicial records exceeded

Mr. Walker’s interest in restricting access to the transcript. The 17-1415 Appellants

raise four additional arguments for vacating or reversing the district court’s denial of

their motions to receive the transcript. We vacate the district court’s order as to the

CSFC and remand for further proceedings because the district court did not

adequately account for the strong presumption in favor of public right of access to

judicial records and did not narrowly tailor its orders restricting access to the

transcript. We, however, affirm the district court’s rulings on the motions to receive

the transcript by the 17-1415 Appellants. Unlike the CSFC, the 17-1415 Appellants

did not raise a public right of access argument in their motions to the district court.

3
And the four remaining arguments of the 17-1415 Appellants are either also

unpreserved or wholly without merit.

I. BACKGROUND

A. Mr. Walker’s Conviction & Sentence

Mr. Walker, as well as his codefendants David A. Banks, Demetrius K.

Harper, Clinton A. Stewart, David A. Zirpolo, and Kendrick Barnes, were all

members of the CSFC. These six individuals helped run IRP Solutions Corporation

(“IRP”), a software development company. United States v. Banks, 761 F.3d 1163,

1170–71 (10th Cir. 2014). In the course of running IRP, Mr. Walker and his

codefendants falsified employee time cards and hired several staffing companies

without having any ability to pay for their services. Id. at 1171–73. A grand jury

indicted Mr. Walker and his codefendants on various mail fraud and wire fraud

charges. Id. at 1173. Mr. Walker and his codefendants proceeded pro se for their trial

and were convicted on multiple counts. Id. at 1173–74.

For purposes of sentencing and appeal, Mr. Walker, Mr. Harper, Mr. Stewart,

Mr. Zirpolo, and Mr. Barnes retained Mr. Lowther and Ms. Lawson as counsel.1 See

id. at 1169. Meanwhile, after Ms. Lawson withdrew from representing Mr. Banks,2

the court appointed Charles Henry Torres as counsel for Mr. Banks, see id. At

1
At that time, Ms. Lawson was married and her legal name was Gwendolyn
Maurice Solomon. See United States v. Banks, 761 F.3d 1163, 1169 (10th Cir. 2014).
2
Ms. Lawson’s representation of Mr. Banks was limited to a post-trial, pre-
sentencing bond hearing.
4
sentencing, and over Mr. Walker’s objection, the district court concluded Mr. Walker

was a leader of IRP and increased his United States Sentencing Guidelines Manual

range accordingly. Mr. Walker moved for a downward variance, focusing

predominantly on his personal characteristics and the potentially legitimate nature of

IRP, but not presenting arguments about how his faith in God, the CSFC, and Pastor

Banks influenced his actions when operating IRP. The district court rejected Mr.

Walker’s request for a downward variance and sentenced him to 135 months’

imprisonment. This court affirmed the district court’s judgment. Banks, 761 F.3d at

1202.

B. Mr. Walker’s § 2255 Proceeding

Mr. Walker submitted a § 2255 motion to the district court, accompanied by a

motion to restrict access to his § 2255 filing. The § 2255 motion and the

memorandum in support of the motion to restrict are marked as “restricted document-

Level 2” such that only Mr. Walker, the government, and the court can access the

documents. Mr. Walker’s § 2255 motion raised three claims, including that

Ms. Lawson operated under an actual conflict of interest when representing him at

sentencing because Pastor Banks directed Ms. Lawson’s mitigation strategy. The

Government filed a non-restricted response to Mr. Walker’s § 2255 motion. The

district court convened a three-day evidentiary hearing, at which sixteen witnesses

testified.3 The witnesses included (1) Mr. Walker; (2) Vernon Lee Gaines, a process

3
The minute entries from the hearing reflect that fifteen witnesses testified. A
review of the transcript reveals a sixteenth witness testified.
5
server; (3) Ms. Lawson; (4) Mr. Lowther; (5) several former CSFC members; and (6)

a witness offered as an expert for the standard of a reasonably competent criminal

defense attorney. Each witness testified in open court. The district court granted Mr.

Walker’s § 2255 motion as to his claim that Ms. Lawson operated under an actual

conflict of interest when she represented him at sentencing. At resentencing, the

district court reduced Mr. Walker’s sentence to seventy months’ imprisonment.

After announcing Mr. Walker’s new sentence, the district court addressed

Mr. Walker’s relationship with the CSFC and Pastor Banks, a discussion which sheds

some light on the restricted documents that we have reviewed but do not discuss in

our opinion. In short, the district court noted the control the CSFC and Pastor Banks

held over Mr. Walker during the commission of his offense, including how Pastor

Banks required Mr. Walker to discontinue communication with his parents if he

wanted to remain in the CSFC. The district court also praised Mr. Walker for

divorcing himself from the beliefs of the CSFC and questioned whether Pastor Banks

espoused values consistent with Christianity. Finally, the district court outlined

actions taken by Pastor Banks subsequent to Mr. Walker questioning her divine

prophecies, actions which the court had deemed harassing. Included in those actions

were Pastor Banks (1) excommunicating Mr. Walker from the CSFC, (2) ordering

Mr. Walker’s wife and son not to have any further contact with Mr. Walker, and (3)

writing Mr. Walker a letter in which she attributed his father’s cancer and the

proliferation of his own muscle disease to his decision to speak against her and the

CSFC by filing his § 2255 motion.

6
 C. Motions to Restrict, to Receive Transcript, & to Unseal

Following his resentencing hearing, Mr. Walker moved to restrict access to the

transcript of his § 2255 hearing, supporting his motion to restrict with a document

that, itself, is restricted. Through a text order accompanied by a restricted access

written order, the district court granted Mr. Walker’s motion to restrict. Thereafter,

Ms. Lawson, on behalf of herself and purportedly as counsel for Mr. Walker’s

codefendants, moved to receive the transcript from the day on which she testified,

June 15, 2017.4 In advancing the motion, Ms. Lawson relied on 28 U.S.C. § 753 and

her need to review the transcript in preparation for defending against the attorney

disciplinary proceedings. The district court granted the motion with respect to Ms.

Lawson’s own testimony but denied the motion with respect to the other witnesses

who testified on June 15, 2017. In support of the partial denial, the district court cited

its text order granting Mr. Walker’s motion to restrict, but it did not provide Ms.

Lawson with any of its analysis.

Thereafter, Ms. Lawson, again on behalf of herself and Mr. Walker’s

codefendants, moved to receive the transcript of all three days of the § 2255 hearing.

This motion argued CSFC members never harassed any of the witnesses and

challenged the propriety of the district court’s decision to grant Mr. Walker § 2255

relief. The district court entered a text order denying the motion to receive a

4
Sometime after the resentencing hearing but before this motion to receive the
transcript, the district court judge initiated attorney disciplinary proceedings against
Ms. Lawson in the Colorado Supreme Court and the District of Colorado.

7
transcript of all three days of testimony “for the same reasons as stated in [its partial

denial of Ms. Lawson’s motion to receive the transcript of all witnesses on the day

she testified].” 17-1415 App’x at 38. Ms. Lawson, again on behalf of herself and Mr.

Walker’s codefendants, filed an appeal. See Notice of Appeal, United States v.

Harper, No. 1:09-cr-00266-CMA-2, (D. Colo. Nov. 10, 2017) ECF No. 1093. In

pertinent part, the notice of appeal reads:

Gwendolyn M. Lawson Attorney of Record for co-defendants, Demetrius
K. Harper, Kendrick Barnes, Clinton A. Stewart, David A. Banks and
David Zirpolo in the above named case, hereby appeal to the United States
Court of Appeals for the Tenth Circuit from Orders 1090 and 1092 denying
access to the transcripts for the June 12, 15 and 16, 2017 from Gary Walker
Evidentiary Hearing . . . .

Id. And, Ms. Lawson filed the notice of appeal in Mr. Harper’s case rather than

Mr. Walker’s case. See id.

Thereafter, the CSFC, through counsel other than Ms. Lawson, moved to

unseal the transcript of the § 2255 hearing, arguing (1) it had a private interest in the

transcript because statements in the transcript impugned its reputation in the

community and (2) a general First Amendment and common law public right of

access to judicial records independently countenanced against the sealing of the

transcript. In an unrestricted order, the district court denied the CSFC’s motion,

concluding the CSFC primarily sought the transcript for personal purposes and

faulting the CSFC for failing to advance a “less intrusive alternative[]” than sealing

the entire record. 18-1273 App’x at 84. The CSFC timely appealed, with Ms. Lawson

8
representing the CSFC on appeal. We consolidated the appeals in cases 17-1415 and

18-1273.

II. DISCUSSION

Before reaching the merits of these appeals, we address three preliminary matters:

(1) the identity of the appellants in case number 17-1415, (2) our jurisdiction over these

appeals, and (3) the parties’ motions to supplement the record on appeal.

A. Identity of Appellants in Case No. 17–1415

Case No. 17-1415 is an appeal from two district court orders: (1) Docket

Number 1090, which denied Docket Number 1088—the motion to receive the

transcript of the June 15, 2017, portion of the § 2255 hearing; and (2) Docket

Number 1092, which denied Docket Number 1091—a motion to receive the full

transcript of the § 2255 hearing. The motions identify “Gwendolyn M. Lawson,

Attorney at Law and Defendants, Demetrius K. Harper, David A. Banks, Clinton A.

Stewart, David A. Zirpolo, and Kendrick Barnes, by and through their attorney” as

the movants. 17-1415 App’x at 26, 31. Further, the notice of appeal identifies Ms.

Lawson, Mr. Harper, Mr. Barnes, Mr. Stewart, Mr. Banks, and Mr. Zirpolo as parties

to the appeal. And, as noted above, the notice of appeal was filed in Mr. Harper’s

case.

From this, we conclude that, in addition to Ms. Lawson, Mr. Harper,

Mr. Barnes, Mr. Stewart, and Mr. Zirpolo were movants below and are appellants in

9
Case Number 17-1415.5 However, we reach a different conclusion with respect to

Mr. Banks. In 2011, prior to the sentencing proceeding, Ms. Lawson moved to

withdraw from representing Mr. Banks, and a magistrate judge granted the motion.

Thereafter, for purposes of sentencing and appeal, Mr. Torres represented Mr. Banks.

And nothing in the record, such as a new entry of appearance by Ms. Lawson on

behalf of Mr. Banks, suggests Mr. Banks subsequently sought Ms. Lawson’s legal

services. We, therefore, conclude Ms. Lawson lacked a basis to file the motions and

notice of appeal on behalf of Mr. Banks and we do not include him as an appellant in

Case Number 17-1415.

B. Jurisdiction over Appeal

We ordered the parties in both appeals to file jurisdictional memoranda

addressing whether Appellants need certificates of appealability (COAs) for this

court to possess jurisdiction over the appeals. The Government and the Appellants in

both appeals argue COAs are not needed because Appellants are not § 2255 movants

and are not appealing from the district court’s order granting in part and denying in

part Mr. Walker’s § 2255 motion. Mr. Walker agrees the CSFC does not need a COA

5
We acknowledge the docketing statement filed by Ms. Lawson in this court
identifies only herself as an appellant. However, under Federal Rule of Appellate
Procedure 3(b)(1), “[w]hen two or more parties are entitled to appeal from a district-
court judgment or order, and their interests make joinder practicable, they may file a
joint notice of appeal. They may then proceed on appeal as a single appellant.”
(emphasis added). Thus, where the motions identified Ms. Lawson, Mr. Harper, Mr.
Barnes, Mr. Stewart, and Mr. Zirpolo as movants and the notice of appeal identified
the same as appellants, Ms. Lawson was not required to identify Mr. Harper, Mr.
Barnes, Mr. Stewart, and Mr. Zirpolo on the post-notice-of-appeal docketing
statement.
10
but argues the 17-1415 Appellants need a COA to the extent they seek to challenge

the district court’s ruling on Mr. Walker’s § 2255 motion.

Whether a party needs a COA is a threshold jurisdictional question. See

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[U]ntil a COA has been issued

federal courts of appeals lack jurisdiction to rule on the merits of appeals from

habeas petitioners.”). Thus, although the parties are largely in agreement that

Appellants do not need COAs, we must assure ourselves that COAs are not required

before considering the merits of the appeals. See Chavez v. City of Albuquerque, 402

F.3d 1039, 1043 (10th Cir. 2005) (“[W]e have a continuing obligation to assure

ourselves that appellate jurisdiction exists.”); see also Am. Fire & Cas. Co. v. Finn,

341 U.S. 6, 17–18 (1951) (noting that parties cannot consent to the expansion of

federal court jurisdiction).

Section 2253 of Title 28 establishes when a COA is required: “Unless a circuit

justice or judge issues a certificate of appealability, an appeal may not be taken to the

court of appeals from . . . the final order in a proceeding under section 2255.” 28

U.S.C. § 2253(c)(1) (emphasis added). Meanwhile, Federal Rule of Appellate

Procedure 22 also addresses the issuance of a COA, stating:

In a habeas corpus proceeding in which the detention complained of
arises from process issued by . . . a 28 U.S.C. § 2255 proceeding, the
applicant cannot take an appeal unless a circuit justice or a circuit or
district judge issues a certificate of appealability under 28 U.S.C.
§ 2253(c). If an applicant files a notice of appeal, the district clerk must
send to the court of appeals the certificate (if any) . . . along with the
notice of appeal and the file of the district-court proceedings. If the
district judge has denied the certificate, the applicant may request a
circuit judge to issue it.

11
Fed. R. App. P. 22(b)(1) (emphases added). Based on the emphasized language in 28

U.S.C. § 2253(c)(1) and Federal Rule of Appellate Procedure 22(b)(1), we conclude

Appellants are not required to obtain a COA relative to their challenge to the district

court’s decision to restrict access to the § 2255 hearing transcript.6

First, by its terms, § 2253(c)(1) applies when an appeal is taken from “the final

order” in a § 2255 proceeding; but Appellants appeal from orders other than the final

order granting Mr. Walker relief. Second, Rule 22(b)(1) focuses on the “applicant”

needing to obtain a COA but does not place the same requirement on other

individuals, such as Appellants, who might appeal from a collateral order in the

course of a § 2255 case. See United States v. Pearce, 146 F.3d 771, 773 (10th Cir.

1998) (“[M]ost courts have held that Congress intended to require a certificate only

in an appeal by an applicant for a writ.”).

6
To the extent the 17-1415 Appellants seek to challenge the district court’s
decision to grant Mr. Walker § 2255 relief, we need not opine on whether a COA is
required because a more apparent jurisdictional defect—a lack of standing—
precludes reaching the merits of their potential argument. Parties have standing to
challenge an action, if they “suffered ‘some threatened or actual injury resulting from
the putatively illegal action.’” Warth v. Seldin, 422 U.S. 490, 499 (1975) (quoting
Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973)). Where a party relies on a
“threatened injury” the “injury must be ‘certainly impending’” to confer standing,
and a speculative or attenuated injury will not suffice. Whitmore v. Arkansas, 495
U.S. 149, 158 (1990) (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)).
Here, the 17-1415 Appellants do not identify any already-sustained injury resulting
from the district court’s grant of habeas relief and their suggested prospective injuries
are speculative and attenuated. Thus, the 17-1415 Appellants lack standing to
challenge the district court’s decision to grant Mr. Walker § 2255 relief.
12
 Our conclusion is consistent with the primary purposes of the COA

requirement: “to protect government officials from the need to respond to large

numbers of insignificant appeals.” David G. Knibb, Federal Court Appeals Manual

§ 16.2 (6th ed. 2018); see 16AA Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 3968.1 at 1–2 (4th ed. 2008) (“Courts have noted that the

COA requirement serves to protect the government from having to defend against

frivolous appeals.”). But very few appeals from § 2255 proceedings involve collateral

matters, such as the denial of a motion to access a transcript of a proceeding. Thus,

the government would not be flooded with appeals if a COA is not required before

this court can take jurisdiction over appeals from matters collateral to the § 2255

proceeding. Our conclusion is also consistent with the conclusion we reached in an

unpublished order where we held § 2255 applicants appealing from the denial of a

motion to unseal did not need a COA. See United States v. Pickard, 733 F.3d 1297,

1301 n2. (10th Cir. 2013) (“This court previously determined that Defendants do not

need to obtain a certificate of appealability . . . in order to appeal the district court’s

decision denying their motion to unseal because that motion is separate from any

challenge to their convictions and sentences under 28 U.S.C. § 2255.” (citing United

States v. Pickard, Nos. 12–3142, 12–3143, Order (10th Cir. Oct. 2, 2012))). And if

§ 2255 applicants do not need COAs to appeal the denial of a motion to unseal, it

follows non-applicants do not need COAs.

13
 C. Motions to Supplement

The 17-1415 Appellants, the CSFC, and Mr. Walker all separately move to

supplement the record on appeal. We outline the legal standard for when

supplementation is permissible before analyzing the three motions to supplement.

1. Legal Standard

A party may supplement the record pursuant to either Federal Rule of

Appellate Procedure 10(e) or the inherent equitable power exception to the

constraints placed on supplementation by Rule 10(e).

Although “Rule 10(e) allows a party to supplement the record on appeal,” it

“does not grant a license to build a new record.” United States v. Kennedy, 225 F.3d

1187, 1191 (10th Cir. 2000) (internal quotation marks omitted). Under Rule 10(e), a

party may modify the record on appeal “only to the extent it is necessary to ‘truly

disclose what occurred in the district court.’” Id. (quoting Fed. R. App. P. 10(e)(1)).

To that point, as a general rule, “[t]his court will not consider material outside the

record before the district court.” Id.; cf. Magnum Foods, Inc. v. Cont’l Cas. Co., 36

F.3d 1491, 1502 n.12 (10th Cir. 1994) (“Although this court may appropriately take

judicial notice of developments that are a matter of public record and are relevant to

the appeal, our review of a grant of summary judgment is limited to the record before

the trial court at the time it made its ruling.” (citation omitted)).

Apart from Rule 10(e), “under some circumstances, we have an inherent

equitable power to supplement the record on appeal.” Kennedy, 225 F.3d at 1192

14
(citing Ross v. Kemp, 785 F.2d 1467 (11th Cir. 1986)).7 In determining whether

proposed supplemental material qualifies for the inherent equitable power exception

to Rule 10(e), a court should evaluate factors such as: “1) whether ‘acceptance of the

proffered material into the record would establish beyond any doubt the proper

resolution of the pending issue;’ [and] 2) whether remand for the district court to

consider the additional material would be contrary to the interests of justice and a

waste of judicial resources.”8 Id. at 1191 (quoting Ross, 785 F.2d at 1475).

2. The 17-1415 Appellants’ Motion

The 17-1415 Appellants seek to supplement the record with two e-mails

Ms. Lawson received from her ex-husband, Stanley Solomon, a former CSFC

member who testified at the § 2255 hearing. These e-mails were not part of the

record before the district court. Accordingly, the e-mails cannot be added to the

record through Rule 10(e). Furthermore, the e-mails shed little to no light on any

7
Although United States v. Kennedy, 225 F.3d 1187 (10th Cir. 2000), involved
an appeal from the denial of § 2255 relief where the rules governing the development
of the record are more exacting, see Rules 7 & 8 of the Rules Governing §§ 2254
& 2255 Proceedings, this court has cited Kennedy and the inherent equitable power
exception in appeals from non-§ 2255 proceedings, see Rio Grande Silvery Minnow
v. Bureau of Reclamation, 601 F.3d 1096, 1110 n.11 (10th Cir. 2010); see also Breen
v. Black, 709 F. App’x 512, 514 (10th Cir. 2017); Chytka v. Wright Tree Serv., Inc.,
617 F. App’x 841, 846 (10th Cir. 2015); Pennington v. Northrop Grumman Space &
Mission Sys. Corp., 269 F. App’x 812, 817 (10th Cir. 2008).
8
Kennedy identified a third factor specific to an appeal from the denial of
§ 2255 relief, a factor which is not applicable in this case. See 225 F.3d at 1191
(identifying third factor as “whether supplementation is warranted in light of the
‘unique powers that federal appellate judges have in the context of habeas corpus
actions’” (quoting Ross v. Kemp, 785 F.2d 1467, 1475 (11th Cir. 1986))).
15
matter dispositive to these appeals such that the factors underlying the inherent

equitable power exception to Rule 10(e) counsel against supplementation. Therefore,

we deny the 17-1415 Appellants’ motion to supplement.

3. The CSFC’s Motion

The CSFC moves to supplement the record with (1) an undated letter from a

CSFC member to Mr. Walker’s probation officer detailing Mr. Walker’s August 28,

2018, attempted delivery of a birthday card to Kyle Walker—Mr. Walker’s son and a

member of the CSFC; and (2) an August 28, 2018, letter from Kyle Walker. As both

of these letters were drafted subsequent to the district court’s last order on June 1,

2018, the letters were not part of the district court record and are not proper materials

for supplementation under Rule 10(e). Furthermore, the letters do not prove relevant

to the public right of access argument upon which we resolve the CSFC’s appeal.

Therefore, the factors underlying the inherent equitable power exception to Rule

10(e) counsel against supplementation, and we deny the CSFC’s motion to

supplement.

4. Mr. Walker’s Motion

Mr. Walker moves to supplement the record with (1) a June 14, 2018, e-mail

from a CSFC member to Mr. Walker’s counsel; (2) a radio advertisement about the

district court judge; and (3) a letter from the Colorado Supreme Court Office of

Attorney Regulation Counsel indicating that the disciplinary action instituted by the

district court judge against Ms. Lawson was resolved in Ms. Lawson’s favor. The

first two items post-date the district court’s June 1, 2018, order such that

16
supplementation is not appropriate under Rule 10(e). Furthermore, the first two items

are neither dispositive nor relevant to the issues that dominate this matter.

Accordingly, the inherent equitable power exception to Rule 10(e) does not favor

supplementation of the first two items, and we deny Mr. Walker’s motion as to those

two items.

Regarding the letter from the Colorado Supreme Court Office of Attorney

Regulation Counsel, matters in state bar disciplinary proceedings are subject to

judicial notice. Rose v. Utah State Bar, 471 F. App’x 818, 820 (10th Cir. 2012); see

White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010) (identifying “state bar record

reflecting disciplinary proceedings” as documents “appropriate for judicial notice”).

And where we may take judicial notice of a matter that occurs subsequent to the

district court’s ruling, supplementation is permissible. See Magnum Foods, Inc., 36

F.3d at 1502 n.12. Furthermore, the letter is relevant to Ms. Lawson’s argument that

she has a personal interest in the full transcript because she needs it to properly

defend against the state disciplinary proceeding. Accordingly, we grant Mr. Walker’s

motion with respect to the letter from the Colorado Supreme Court Office of

Attorney Regulation Counsel. However, because Ms. Lawson acknowledges in her

reply brief that the state disciplinary proceeding was resolved in her favor, we see no

need to delay issuance of our ruling to allow Mr. Walker to formally supplement the

record. Rather, we accept as true that the state disciplinary proceeding concluded, but

we permit Mr. Walker ten days from the issuance of this opinion to supplement the

record.

17
 D. Analysis of Merits of Appeals

We state the standard of review and the requirements governing preservation of

arguments before outlining the law surrounding the public’s right of access to judicial

records. Thereafter, we address the public right of access argument in each appeal,

concluding the district court abused its discretion when it denied the CSFC’s motion to

unseal but that the 17-1415 Appellants failed to preserve a public right of access

argument. Finally, we consider and reject the 17-1415 Appellants’ four additional

arguments for vacating or reversing the district court’s orders denying their motions to

receive the transcript.

1. Standard of Review

The district court’s decision to seal or unseal documents is reviewed for an

abuse of discretion, but any legal principles the district court applied when making its

decision are reviewed de novo. Pickard, 733 F.3d at 1302. We apply the overarching

abuse of discretion standard because the decision whether to seal or unseal is

“necessarily fact-bound.” United States v. Hickey, 767 F.2d 705, 708 (10th Cir.

1985). A district court abuses its discretion where it “(1) commits legal error,

(2) relies on clearly erroneous factual findings, or (3) where no rational basis exists

in the evidence to support its ruling.” Dullmaier v. Xanterra Parks & Resorts, 883

F.3d 1278, 1295 (10th Cir. 2018); see Pickard, 733 F.3d at 1302 (district court

abuses its discretion if it “appl[ies] incorrect legal principles”).

18
2. Preservation Requirement

“An appellant can fail to preserve an appeal point through either forfeiture or

waiver.” Sprint Nextel Corp. v. Middle Man, Inc., 822 F.3d 524, 531 (10th Cir.

2016). “A federal appellate court will not consider an issue not passed upon below.”

FDIC v. Noel, 177 F.3d 911, 915 (10th Cir. 1999) (quoting Singleton v. Wulff, 428

U.S. 106, 120 (1976)). “Consequently, when a litigant fails to raise an issue below in

a timely fashion and the court below does not address the merits of the issue, the

litigant has not preserved the issue for appellate review.” Id. Finally, where a party

forfeits an argument by not raising it in district court, we will only overlook the

forfeiture if the party advancing the argument on appeal presents the argument

through the lens of plain error review. See Richison v. Ernest Grp., Inc., 634 F.3d

1123, 1128, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and its

application on appeal . . . surely marks the end of the road for an argument for

reversal not first presented to the district court.”).

3. Public Right of Access Argument

On appeal, the Appellants argue the district court, when granting Mr. Walker’s

motion to restrict the § 2255 hearing transcript and denying the various motions to

gain access to said transcripts, failed to accord proper weight to the public right of

access to inspect judicial records. We outline the prevailing legal standard before

analyzing the issue as to each appellate case.

19
 a. Legal standard

“It is clear that the courts of this country recognize a general right to inspect

and copy public records and documents, including judicial records and documents.”

Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted).

Generally, this right is not conditioned “on a proprietary interest in the document or

upon a need for it as evidence in a lawsuit.” Id. Rather, “[t]he interest necessary to

support the issuance of a writ compelling access has been found, for example, in the

citizen’s desire to keep a watchful eye on the workings of public agencies.” Id. at

597–98. Likewise, the common law right to access court records “is an important

aspect of the overriding concern with preserving the integrity of the law enforcement

and judicial processes.” Hickey, 767 F.2d at 708.

Based on these principles, “there is a strong presumption in favor of public

access” as “the interests of the public . . . are presumptively paramount[] [when

weighed] against those advanced by the parties.” Pickard, 733 F.3d at 1302

(emphasis added) (internal quotation marks omitted). And at least three factors may

amplify this strong presumption in favor of public access. First, the purposes behind

allowing public access to judicial records are heightened when “the district court

used the sealed documents to determine litigants’ substantive legal rights.” Id.

(internal quotation marks omitted). Second, where a criminal proceeding does not

involve presentation to a jury, the importance of public access to the proceeding is

“even more significant.” See Press-Enter. Co. v. Superior Court of Cal., 478 U.S. 1,

12–13 (1986) (applying right to access to preliminary hearings); cf. In re Hearst

20
Newspapers, L.L.C., 641 F.3d 168, 179 (5th Cir. 2011) (“[T]he fact that there is no

jury at the sentencing proceeding, in contrast to jury trials, heightens the need for

public access.”). Third, where the information sealed has already been disclosed in a

public proceeding, a party’s personal interest in sealing the material is diminished.9

Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007); see Pickard, 733 F.3d at

1305 (“The fact that some of the sealed information has already been made public

suggests that much of the information . . . could be unsealed.”).

The right of public access to judicial records, however, is “not absolute” as

“[e]very court has supervisory power over its own records and files,” which gives it

the authority to seal documents. Nixon, 435 U.S. at 598; see Pickard, 733 F.3d at

1300. The “strong presumption of openness can be overcome where countervailing

interests heavily outweigh the public interests in access.” Pickard, 733 F.3d at 1302

(emphasis added) (internal quotation marks omitted). Put another way, “[t]he party

seeking to seal any part of a judicial record bears the heavy burden of showing that

‘the material is the kind of information that courts will protect’ and that ‘disclosure

will work a clearly defined and serious injury to the party seeking closure.’” Miller v.

Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994) (quoting Publicker Indus., Inc. v. Cohen,

733 F.2d 1059, 1071 (3d Cir. 1984)).

9
While we state these three factors as having enhanced the strong presumption
in favor of the public interest here, we do not conclude the CSFC necessarily
perfected its arguments on each of these factors. Nonetheless, these factors are
matters the district court may need to address on remand.
21
 Situations where the right to public access is sufficiently subservient to a

party’s interest include where the records are likely to be used for “improper

purposes,” including “‘to gratify private spite or promote public scandal’” or to

“serve as reservoirs of libelous statements for press consumption.” Nixon, 435 U.S. at

598 (quoting In re Caswell, 29 A. 259, 259 (R.I. 1893)). However, any denial of

public access to the record must be “narrowly tailored to serve th[e] interest” being

protected by sealing or restricting access to the records. Press-Enter. Co., 478 U.S. at

13–14 (emphasis added); see Pickard, 733 F.3d at 1304 (noting that district court,

when sealing record, should consider whether supplying a redacted version of the

record would adequately protect the interests of the party seeking the seal); cf. Waller

v. Georgia, 467 U.S. 39, 48 (1984) (“[T]he party seeking to close the hearing must

advance an overriding interest that is likely to be prejudiced, the closure must be no

broader than necessary to protect that interest, [and] the trial court must consider

reasonable alternatives to closing the proceeding.” (emphasis added)). And a district

court abuses its discretion if it does “not narrowly tailor its order” closing the record

to public inspection. See Davis v. Reynolds, 890 F.2d 1105, 1110 (10th Cir. 1989).

After “a court orders documents before it sealed, the court continues to have

authority to enforce its order sealing those documents, as well as authority to loosen

or eliminate any restrictions on the sealed documents. This is true even if the case in

which the documents were sealed has ended.” Pickard, 733 F.3d at 1300 (citations

omitted). If after a court seals its records a motion is made “to remove such a seal,

the district court should closely examine whether circumstances have changed

22
sufficiently to allow the presumption allowing access to court records to prevail.”

Miller, 16 F.3d at 551–52. And, when reviewing a motion to unseal, the district court

must remember that “the party seeking to keep records sealed bears the burden of

justifying that secrecy,” as the granting of the earlier motion to seal does not shift the

burden onto the party seeking to unseal. Pickard, 733 F.3d at 1302; see id. at 1303–

04 (holding district court abused its discretion where it did not continue to “apply the

presumption of public access to judicial records” when confronted with motion to

unseal). Finally, in granting a motion to seal, or denying a motion to unseal, “[t]he

trial court must articulate [the interest warranting sealing] ‘along with findings

specific enough that a reviewing court can determine whether the closure order was

properly entered.’” Phoenix Newspapers, Inc. v. U.S. Dist. Court for the Dist. of

Ariz., 156 F.3d 940, 949 (9th Cir. 1998) (quoting Press-Enter. Co., 478 U.S. at 9–

10).

b. Analysis as to the CSFC

The CSFC presented a public right of access argument to the district court

when moving to unseal the transcript.10 Accordingly, the CSFC’s argument is

properly before us. And, after a review of the full record, including the transcript of

the § 2255 hearing, we conclude the district court abused its discretion by (1) not

10
The CSFC moved to unseal the entire record in Mr. Walker’s § 2255
proceeding. The district court, however, only addressed the motion relative to the
hearing transcript. And, on appeal, the CSFC does not specifically argue that the
district court’s failure to address its motion relative to sealed documents other than
the transcript was error. Thus, we confine our analysis to what the district court did
decide—that the transcript of the hearing would not be unsealed.
23
fully acknowledging the strong presumption in favor of the public right of access,

including several factors that heightened the strong presumption in this instance; (2)

failing to narrowly tailor its orders restricting access to the record and, relatedly,

failing to connect the interests asserted by Mr. Walker to the sealing of the testimony

of each witness at the § 2255 hearing; and (3) faulting the CSFC for not proposing an

alternative to sealing the entire record. We address each abuse of discretion in turn.

When granting Mr. Walker’s motion to restrict and denying the CSFC’s

motion to unseal, the district court failed to acknowledge and account for three facts

that heightened the already strong presumption in favor of the public right of access.

First, the district court relied on the § 2255 hearing testimony to grant Mr. Walker

relief. See Pickard, 733 F.3d at 1302. Second, the proceeding, although technically

civil, impacted Mr. Walker’s criminal sentence and occurred in the absence of a jury.

See Press-Enter. Co., 478 U.S. at 12–13. Third, not only was the § 2255 hearing not

sealed such that the information restricted was already exposed to the public but

during Mr. Walker’s resentencing hearing, the district court, in open court, discussed

aspects of the restricted record.11 See Mann, 477 F.3d at 1149; see also Pickard, 733

F.3d at 1305. In not acknowledging and addressing these facts in its orders restricting

the transcript and denying the CSFC’s motion to unseal, the district court either

failed to apply the appropriate legal standard or failed to adequately articulate its

11
At least one member of the CSFC, Ms. Lawson, was present at the
resentencing hearing, and the transcript of the resentencing hearing is not restricted.

24
analysis in support of restricting the record so as to permit meaningful appellate

review.

Next, by restricting access to the entire transcript, the district court failed to

narrowly tailor its order to the interest asserted by Mr. Walker—that he and the

former CSFC members that testified were likely to face harassment if the CSFC

gained access to the transcript. It is not apparent why restricting access to the

testimony of Mr. Lowther, who served as counsel for Mr. Walker and four of his

codefendants, and of Mr. Gaines, who served process on Ms. Lawson, furthers the

personal interest advanced by Mr. Walker.12 Certainly, the district court did nothing

to tie the private interests raised by Mr. Walker to the need to restrict access to the

testimony of these two witnesses. And, the district court also failed to consider

whether redacting aspects of the testimony of other witnesses, especially the expert

witnesses, would allow for the unsealing of their testimony.13

Interestingly, the district court, in its order denying the CSFC’s motion to

unseal, implicitly acknowledged it had not narrowly tailored its order granting

12
We observe that, despite not having access to the transcript, the CSFC was
well aware of Mr. Lowther’s and Mr. Gaines’s identities and roles in the proceedings.
Yet the district court did not cite any evidence suggesting CSFC members took steps
to harass Mr. Lowther or Mr. Gaines. Nor is it apparent from the record how or why
the CSFC would use a transcript of Mr. Lowther’s or Mr. Gaines’s testimony for a
spiteful or scurrilous purpose.
13
In particular, we are skeptical of the need to restrict entirely access to the
testimony of the expert for the standard of a reasonably competent criminal defense
attorney, as redacting the expert’s name and place of employment is likely sufficient
to mitigate the concerns raised by Mr. Walker.
25
Mr. Walker’s motion to restrict when it stated: “Because of this Court’s need to

protect virtually all of the witnesses at the hearing, including Mr. Walker and his

reasons for requesting habeas relief, which were discussed throughout the three-day

hearing, sealing the transcript[] in [its] entirety is warranted.” 18-1273 App’x at 84

(emphasis added). But if the restriction was necessary to protect only “virtually all of

the witnesses,” it follows that the restriction was not necessary for the protection of

at least one witness. Yet, the district court did not follow our precedent and narrowly

tailor its orders restricting access to the transcript. As such, the district court abused

its discretion.

Finally, the district court erred when it faulted the CSFC for not proposing

alternatives to restricting access to the entire transcript. See id. (“CSFC presents this

Court with no less intrusive alternatives, instead requesting complete and unfettered

access to ‘all documents associated with and introduced at the hearing, along with the

immediate unsealing of the transcript associated with the proceeding.’” (quoting id.

at 67 (CSFC Mot. to Unseal at 3))). But the duty was on the district court, not the

CSFC, to consider alternatives to restricting access to the entire transcript. See Davis,

890 F.2d at 1110; Waller, 467 U.S. at 48. And placing such a duty on the district

court, rather than the party seeking access, is logical because the district court had

full access to the transcript while the CSFC had no access to the restricted transcript.

Thus, the CSFC could not comb through the transcript and meaningfully advance a

narrower alternative than unsealing the entire transcript.

26
 Where access to Mr. Walker’s filings was restricted ab initio, the issue of

restricting access to the record proceeded in a quasi-ex parte manner, with the

individuals and entity against whom Mr. Walker alleged wrongdoing not before the

court. But a court must take extra care when granting an ex parte motion. Here, the

district court issued a series of text orders that neither stated the requirements for

restricting access to judicial records nor critically analyzed whether sealing the full

transcript was appropriate. And while the record supports the conclusion that the

CSFC is far from the most upstanding litigant, the court was still required to carefully

consider the public’s interest in judicial records and craft a narrowly tailored order.

In summation, we conclude the district court abused its discretion when it

denied the CSFC’s motion to unseal. Accordingly, we vacate the district court’s order

and remand for further proceedings. On remand, the district court should consider the

factors that heighten the public right of access to the transcript of Mr. Walker’s

§ 2255 hearing, address how the interests advanced by Mr. Walker connect to the

restriction placed on public access to the testimony of each witness, and consider

whether there exists a narrower alternative to restricting access to the full transcript.

Finally, because a non-insignificant amount of time has elapsed since the district

court restricted access to the judicial records, the district court may need to consider

whether circumstances have changed so as to diminish Mr. Walker’s interests. See

Miller, 16 F.3d at 551–52 (“Even if the initial sealing was justified, when there is a

subsequent motion to remove such a seal, the district court should closely examine

27
whether circumstances have changed sufficiently to allow the presumption allowing

access to court records to prevail.”).

c. Analysis as to the 17-1415 Appellants

Unlike the CSFC’s motion in the district court, neither of the two motions to

the district court filed by the 17-1415 Appellants raised a public right of access

argument. As such, the argument is forfeited. And although the 17-1415 Appellants

raise the argument on appeal, neither their opening brief nor their reply brief presents

the argument through the lens of plain error review. This is true even though

Mr. Walker, in his response brief, pointed out the forfeiture of the argument.

Accordingly, we do not reach the merits of the 17-1415 Appellants’ argument to

unseal based on a public right of access. See Richison, 634 F.3d at 1131 (“[T]he

failure to argue for plain error and its application on appeal . . . surely marks the end

of the road for an argument for reversal not first presented to the district court.”).

4. Additional Arguments by the 17-1415 Appellants

The 17-1415 Appellants raise four additional arguments for vacating or

reversing the district court’s orders denying their motions to receive the transcript.

These additional arguments range from unpreserved, to meritless, to illogical, to

incomprehensible.

a. Right to Notice Before Restriction

The 17-1415 Appellants argue the district court had a duty to provide them

notice and an opportunity to be heard before granting Mr. Walker’s motions to

restrict access to the records in his § 2255 proceeding. The 17-1415 Appellants,

28
however, failed to present this argument to the district court; thus, the argument is

forfeited. And where the 17-1415 Appellants do not raise this argument on appeal

through the lens of plain error review, we do not reach the merits of the argument.

See id (“[T]he failure to argue for plain error and its application on appeal . . . surely

marks the end of the road for an argument for reversal not first presented to the

district court.”).

b. Right of access under 28 U.S.C. § 753

Ms. Lawson argues 28 U.S.C. § 753 grants her a right to receive the transcript.

This argument, although presented to the district court, is without merit. The relevant

portion of 28 U.S.C. § 753 states:

The reporter or other individual designated to produce the record shall
transcribe and certify such parts of the record of proceedings as may be
required by any rule or order of court, including all . . . proceedings in
connection with the imposition of sentence in criminal cases. . . . He
shall also transcribe and certify such other parts of the record of
proceedings as may be required by rule or order of court. Upon the
request of any party to any proceeding which has been so recorded who
has agreed to pay the fee therefor, or of a judge of the court, the
reporter or other individual designated to produce the record shall
promptly transcribe the original records of the requested parts of the
proceedings and attach to the transcript his official certificate, and
deliver the same to the party or judge making the request.

28 U.S.C. § 753(b) (emphasis added). By its terms, § 753(b) conveys a right of

access only to parties to the proceeding and judges of the court. It does not convey

any right of access to witnesses such as Ms. Lawson. Furthermore, while Mr. Harper,

Mr. Stewart, Mr. Zirpolo, and Mr. Barnes were parties to the criminal trial, they were

29
not parties to Mr. Walker’s § 2255 proceeding. Accordingly, we reject this argument

as without merit.

c. Personal interest in transcript

Next, Ms. Lawson argues she has a personal interest in obtaining the full

transcript because the transcript contains (1) false statements against her and she

cannot defend her name and reputation as an attorney without access to the transcript;

and (2) statements relevant to the disciplinary proceedings instituted against her in

the Colorado Supreme Court and the District of Colorado. Both of these personal

interest arguments were presented to the district court. Ms. Lawson’s first argument,

however, is illogical. To the extent the transcript contains statements against Ms.

Lawson’s name and reputation, maintaining the restriction of access and keeping the

transcript out of the public eye will protect Ms. Lawson’s name and reputation. Ms.

Lawson’s second argument is partially moot and partially unsupported by the record

before us. As Ms. Lawson acknowledges in her reply brief, the disciplinary

proceeding in the Colorado Supreme Court was resolved in her favor. See 17-1415

Reply Br. at 5 (“The Attorney Regulation has determined that Attorney Lawson has

not violated any Rules of Professional conduct and did not provide Mr. Walker

ineffective assistance of counsel.”). Thus, any need Ms. Lawson had for the full

transcript relative to that proceeding evaporated with the termination of the

proceeding. As for the disciplinary proceeding in the District of Colorado, Ms.

Lawson fails to enlighten us as to the nature of the charge(s) against her. Thus, Ms.

Lawson has not demonstrated the district court abused its discretion when it

30
determined that providing her with a transcript of her own testimony was sufficient to

permit her to defend against the allegations levied by the district court judge.

d. Violation of Federal Rule of Appellate Procedure 4

Finally, Ms. Lawson argues the district court, by denying her access to the full

transcript, violated her constitutional right to appeal, as provided by Federal Rule of

Appellate Procedure 4. The contours of Ms. Lawson’s argument on this point are

beyond our powers of comprehension given that (1) the district court docketed Ms.

Lawson’s notice of appeal; (2) Ms. Lawson presented her appellate arguments to this

court; and (3) Federal Rule of Appellate Procedure 4 does not, in and of itself, create

any constitutional rights. To the extent Ms. Lawson is trying to argue that we cannot

effectively consider her arguments on appeal without access to the transcript, we

reviewed the full transcript and would have ruled in Ms. Lawson’s favor on the

public right of access argument had she had the foresight to include such an argument

in the motions to the district court or argue for plain error review in this court. She

did not.

III. CONCLUSION

We DENY the 17-1415 Appellants’ motion to supplement and the CSFC’s

motion to supplement, and DENY IN PART and GRANT IN PART Mr. Walker’s

motion to supplement. Mr. Walker shall have ten days from the issuance of this

opinion to submit the letter from the Colorado Supreme Court Office of Attorney

Regulation Counsel. Further, we AFFIRM the district court’s orders denying the 17-

1415 Appellants’ motions to receive the transcript. However, we VACATE the

31
district court’s order denying the CSFC’s motion to unseal and REMAND for further

proceedings consistent with this Order and Judgment.

Entered for the Court

Carolyn B. McHugh
Circuit Judge

32