Court Opinions: 10th Circuit Court of Appeals Opinion for Jan. 5

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

United States v. Banks

David Banks is a former Colorado Springs Fellowship Church member, where his mother, Rose Banks, is the pastor. David Banks, along with five other members of CSFC, helped run IRP Solutions Corporation, a software development company that supposedly provided software for law-enforcement agencies. David Banks and the five other members who helped run IRP were collectively known as the IRP-6. 

In the course of running IRP, the IRP-6 falsified employee time cards, hired staffing companies without the ability to pay them and falsely claimed it was doing business with local and federal law enforcement agencies. The IRP-6 also prevented the victim companies from learning they wouldn’t be paid and gave false assurances that payment would be coming. Ultimately, 42 staffing companies were left with an excess of $5 million in outstanding invoices. 

In June 2009, a federal grand jury indicted IRP-6 on multiple counts of conspiracy to commit and committing mail and wire fraud. During a trial in September 2011, the defendants proceeded pro se and were all found guilty on one or more counts of both charges. David Banks and his codefendants appealed, and the 10th Circuit Court of Appeals affirmed the district court’s judgment.

In 2015, Gary Walker, one of David Banks’ codefendants, “filed a 28 U.S.C. 2255 motion, in part raising a claim of ineffective assistance of sentencing counsel.” The district court concluded Walker’s sentencing counsel, Gwendolyn Maurice Lawson, a CSFC member, operated under a conflict of interest because Rose Banks dictated her strategy. Accordingly, the district court granted Walker relief in the form of a resentencing proceeding. 

Walker moved to restrict access to the transcript of his 2255 hearing, which the district court granted. Lawson moved several times to obtain the hearing on behalf of herself and Walker’s codefendants. The district court predominately denied the motions but allowed Lawson to access the portion of the transcript with her own testimony. Lawson appealed, after which the CSFC motioned to unseal the transcript. The district court denied the motion, concluding that it would likely result in CSFC members harassing Walker and other CSFC members who testified. CSFC appealed the district court’s order. 

In their appeals, Lawson and CSFC argued the public right to judicial records exceeded Walker’s interest in restricting access to the transcript. On Jan. 23, 2019, the 10th Circuit Court of Appeals vacated and remanded the district court’s order for further proceedings because it didn’t account for the presumption in favor of the public right to access and didn’t narrowly tailor its orders restricting access to the transcript. The 10th Circuit also affirmed the district court’s rulings on the motions to receive the transcript by Lawson who didn’t raise a public access argument and whose other arguments, the panel concluded, were “unpreserved or wholly without merit.”

On Nov. 21, 2019, the district court issued an order unsealing, in part, the evidentiary hearing transcripts from Walker’s habeas corpus proceedings. The court found Rose Banks and some CSFC members showed a consistent pattern of harassment and intimidation against witnesses and jury members, even going to possibly illegal lengths on behalf of CSFC. 

The district court then turned to narrowly tailoring the restrictions it placed on public access to the hearing transcripts, and noted the testimony of 13 witnesses would remain under level two restrictions and the testimony of two witnesses would be released in full. CSFC, David Banks and the other codefendants also made a motion asking the district court judge to recuse herself, which the district court denied. 

On Feb. 7, 2020, CSFC appealed the orders granting CSFC limited access to the evidentiary hearing transcript and denying the motion to recuse. On Dec. 2, 2020, the 10th Circuit dismissed the transcript appeal for untimeliness and affirmed the denial of CSFC’s motion to recuse. 

Approximately two months after the 10th Circuit rejected CSFC’s appeal, David Banks filed a pleading asking for the district court to provide a transcript and unseal records from Walker’s habeas corpus proceedings. The motion asserted there had been no final determination by the court of appeals to the validity of the Nov. 21, 2019, ruling regarding the unsealing of Walker’s habeas proceeding. The district court denied David Banks’ motion, concluding the court had already considered at length the arguments in favor of unsealing.

David Banks then filed an appeal. 

The 10th Circuit ruled all challenges to the district court’s Nov. 21, 2019, order foreclosed because of David Bank’s failure to seek a timely reconsideration of that order. The 10th Circuit affirmed the district’s decision to grant the motions to seal portions of the evidentiary hearing transcripts from Walker’s habeas corpus proceedings because the district court didn’t abuse its discretion in refusing to remove the seal. 

Judge Carolyn McHugh concurred in part and dissented in part, concluding while she would affirm the district court’s decision to maintain the restriction on part of the habeas corpus hearing transcript and some documents, she would order the district court to unrestrict a wide swath of documents filed in the proceeding.

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