The federal appeals court based in Denver has upheld a trial judge’s decision to block access to certain court records, out of concern that members of a Colorado Springs church would use the information to harass and intimidate witnesses.

A long-running and unusual quest for transcripts has been intertwined with the Colorado Springs Fellowship Church and its pastor, Rose Banks. A federal jury convicted six of her members of wire fraud and other charges following their 2011 trial. One of them received a reduced sentence in 2017 after U.S. District Court Senior Judge Christine M. Arguello learned of Banks’ attempts at controlling the defendant.

There was reportedly a fear of “continued retaliatory harassment” from CSFC following the resentencing hearing, and Arguello granted the defense’s request to seal the transcript and block access to other court filings. 

On Thursday, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit found Arguello was justified in her decision.

“The trial judge has some concern based on past conduct that if certain information is shared with Pastor Banks or with the church, it could very well result in harassment of witnesses – just like we had harassment in the past and even, most egregiously, harassment of jurors,” said Judge Carolyn B. McHugh during oral arguments before the panel in November.

The appeal came from David A. Banks, Rose Banks’ son and one of the six criminal defendants nicknamed the “IRP-6.” Federal officials in the mid-2000s pursued an indictment of five Black men and one white man, which drew questions around the time about a racially-motivated prosecution. The men ran IRP Solutions Corporation, which misrepresented its business dealings and ended up owing $5 million to multiple staffing companies.

After representing themselves at trial, a jury found the IRP-6 guilty. Arguello gave them prison sentences ranging from 87 to 135 months. The harshest sentences went to Banks, the chief operating officer, and Gary L. Walker, the company president. The IRP-6 were all members of CSFC.

In 2015, Walker filed a petition for review of his sentence, arguing he had ineffective assistance of counsel during his initial sentencing. Arguello granted a hearing and heard from 16 witnesses, including Walker and several CSFC members.

She found Rose Banks effectively “directed” Walker’s lawyer, who was another church member and who, therefore, had a conflict of interest. The judge listed off other ways Banks had sought to exercise her authority over Walker: alienating him from his wife and son, promising his parents would suffer from cancer for speaking ill of her, and telling Walker that “god is going to bring you down.”

“She told us one time we were in jail, we were in prison, so that we could learn to be better Christians,” Walker, who realized the extent of Banks’ influence after his conviction, told Arguello.

The judge reduced Walker’s sentence from 135 months to 70 months. Walker’s lawyer moved to restrict the transcript, for fear that CSFC members would harass Walker, his parents and the former church members who had spoken. Arguello granted the request.

Gwendolyn Lawson, the lawyer who was conflicted while representing Walker, then tried to obtain the transcript for herself and Walker’s other co-defendants. CSFC also attempted to unseal the proceedings. Arguello allowed Lawson to access her testimony, but otherwise refused to permit access.

In January 2019, the 10th Circuit ordered Arguello to reconsider. In sealing the transcript, she neglected to narrowly fashion the restriction to the stated purpose of preventing harassment. For example, it was not clear to the appellate judges why the testimony of an expert witness, who was unconnected to the CSFC, would need to be shielded.

“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,” wrote McHugh, who, along with Senior Judge Mary Beck Briscoe, would later sit on the panel hearing David Banks’ appeal.

She added that while CSFC was “far from the most upstanding litigant, the court was still required to carefully consider the public’s interest in judicial records.”

CSFC demanded Arguello recuse herself from the case and a church-connected group posted press releases online accusing her of “concealment of misconduct,” but Arguello largely refused to budge. In a November 2019 order, she went witness-by-witness to explain why their testimony would continue to be shielded. The judge found some witnesses had already “endured harassment” from Rose Banks, and Arguello was “extremely concerned” for the safety of former CSFC members who testified about leaving Banks’ church.

Arguello also raised specific allegations related to the IRP-6’s proceedings. A church member had harassed jurors – which the defendants acknowledged had happened – and Lawson, the lawyer who was conflicted, reportedly substituted a “dummy” binder for a notebook containing evidence in order to abscond with the court documents.

“CSFC lashes out – unrelentingly – towards those whom Pastor Banks perceives to have wronged her or her church,” Arguello wrote. “CSFC wants transcripts of the testimony so that its members, even those who were not present at the hearing, can threaten and harass witnesses who were critical of CSFC.”

CSFC again appealed Arguello’s decision, but the 10th Circuit rejected it as untimely. Then David Banks moved separately to unseal the transcript and other records from Walker’s resentencing. Banks claimed his co-defendant’s records would be useful if he sought a presidential pardon or expungement of his own conviction. Arguello rejected the motion, pointing out Lawson had not even represented Banks at his sentencing like she had with Walker, so the records were irrelevant to any relief he might pursue.

At the 10th Circuit, Banks argued there was no evidence he had harassed anyone. His lawyer told the appellate judges that Banks was denied the records simply for being the member of a religious organization, a punishment akin to “being a Jew” in 1930s Germany.

“The ruling does serious injury to the basic principle of public access,” attorney Bernard V. Kleinman told the panel.

Ultimately, the 10th Circuit concluded Arguello acted within her authority to maintain a seal on the records.

“To be sure, (Banks) argues that the district court did not find that he personally represented a threat of misusing the transcripts and records,” wrote Briscoe in the Jan. 5 order. “But that is immaterial because the district court determined that the threat of misuse of the transcripts and records by Banks’s mother and members of CSFC remained and Banks does not challenge that finding.”

McHugh agreed about the continued sealing of the transcript, but she took issue with Arguello blocking access to the other documents related to Walker’s resentencing. While McHugh acknowledged some court filings contained statements critical of CSFC and should rightly remain sealed, she identified other, more mundane documents Arguello had apparently not analyzed.

“None of the district court’s reasons for maintaining the restriction on portions of the transcript apply to these documents. And having reviewed each document, I do not believe the district court could articulate any non-arbitrary reason for maintaining the restriction to access on these documents,” McHugh wrote.

Kleinman, who represented Banks and also CSFC, said the panel’s decision will enable judges to seal records with “little, or no, basis in fact,” and harms the principle of public access to court records.

During much of the appeal, CSFC and Rose Banks were involved in a defamation lawsuit they had filed against a former attendee of the church, who publicly accused Banks of harassment and labeled the organization a “cult.” The parties settled the case in November after the church agreed to dismiss its complaint.

The case is United States v. Banks.