UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GARY L. WALKER, 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,

v. GARY L. WALKER, Defendant - Appellee.

------------------------------ No. 17-1415 (D.C. Nos. 1:15-CV-02223-CMA and 1:09-CR-00266-CMA-3) (D. Colorado)

No. 18-1273 (D.C. No. 1:15-CV-02223-CMA

and 1:09-CR-00266-CMA-3) (D. Colorado)

 Collectively, we refer to these five appellants as the “17-141 5 Appellants.” Section II(A) discusses the prope r identity of the Movants-Appe llants in Case Number 17-1415. In short, althoug h the notice of appeal also id entified David A. Banks as an appellant, Gwendolyn Ma urice Lawson’s representatio n 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. FILED United States Court of Appeals Tenth Circuit 

### January 23, 2019
Elisabeth A. Shumaker Clerk of Court2 COLORADO SPRINGS FELLOWSHIP CHURCH, Movant - Appellant.

________________ _________________ ORDER AND JUDGMENT **

________________ _________________ Before BRISCOE , MURPHY , and McHUGH , Circuit Judges.

________________ _________________

Gary L. Walker, a former member o f the Colorado Springs Fellows hip Church (“CSFC”), was convicted of one c ount of conspiracy to commit ma il fraud arising out of a business operated by CSFC memb ers. He filed a 28 U.S.C. § 225 5 motion, in part raising a claim of ineffective assistance of sentencing counsel . The district court convened an evid entiary hearing, at whic h sixteen witnesses tes tified, including Mr. Walker; former CSFC members; and Gwendolyn Maurice Lawson a nd Joshua Lowther, counsel for Mr. Walker at sentencing. The district cou rt concluded Ms. Lawson, who is a member of the CSFC, ope rated under a conflict of inter est because Pastor Rose Banks of the CSFC dictat ed counsel’s strategy.

** After examining the briefs, the appellate appendices, and the restricted records provided by the government , this panel has determined u nanimously that oral argument would not materially ass ist in the determination of th ese appeals. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The cases are t herefore ordered submitted without oral argument. T his order and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.3 Mr. Walker moved to restrict acces s to the transcript of his § 2255 hearing, and the district court granted th e motion. Ms. Lawson, on behal f of herself and Mr. Walker’s codefendants, twice m oved to obtain the hearing tr anscript. The district court predominantly denied the mo tions but permitted Ms. Lawson access to the portion of the transcript contai ning her own testimony. Ms. Law son, again on behalf of herself and Mr. Walker’s code fendants, noticed an appeal, co mmencing Case Number 17-1415. Thereafter, the CSFC moved to unseal the transc ript. The district court denied the CSFC’s motion , concluding that releasing the t ranscript was likely to result in CSFC members hara ssing and threatening Mr. Walker, as well as the former CSFC members who testified at the § 2255 hearing. The CS FC appealed, thereby initiating Case Number 18-1273. The 17-1415 Appellants and the C SFC argue to this court that th e strong presumption in favor of the pub lic right of access to judicial records exceeded Mr. Walker’s interest in restric ting access to the transcript. The 17-1415 Appellants raise four additional arguments f or vacating or reversing the d istrict court’s denial of their motions to receive the tr anscript. We vacat e the district court’s order as to the CSFC and remand for further pr oceedings because the district co urt did not adequately account for the strong presumption in favor of publi c right of access to judicial records and did not na rrowly tailor its orders restric ting access to the transcript. We, however, affirm the district court’s rulings on the motions to receive the transcript by the 17-1415 Ap pellants. Unlike the CSFC, the 17-1415 Appellants did not raise a public right of access argument in their motion s to the district court.4 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 code fendants David A. Banks, Demetri us K. Harper, Clinton A. Stewart, Davi d A. Zirpolo, and Kendrick Barn es, were all members of the CSFC. These six i ndividuals helped run IRP Solut ions 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. Wal ker and his codefendants falsified employee time cards and hired several st affing companies without having any ability to pay for their services. Id. at 1171–73. A grand jury indicted Mr. Walker and his co defendants on various mail fraud and wire fraud charges. Id. at 1173. Mr. Walker and his code fendants proceeded pro se for their trial and were convicted on multiple counts. Id. at 1173–74. For purposes of sentencing and a ppeal, Mr. Walker, Mr. Harper, Mr. Stewart, Mr. Zirpolo, and Mr. Barnes retai ned Mr. Lowther and Ms. Lawson as counsel. 1 See id. at 1169. Meanwhile, after Ms. Laws on withdrew from representing Mr. Banks, 2 the court appointed Charles He nry Torres as counsel for Mr. Ban ks, see id . At

1 At that time, Ms. Lawson was ma rried and her legal name was Gw endolyn Maurice Solomon. See United States v. Banks , 761 F.3d 1163, 1169 (10th Cir. 2014).

2 Ms. Lawson’s representation of M r. Banks was limited to a post -trial, presentencing bond hearing.5 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 m oved for a downward variance, fo cusing predominantly on his personal ch aracteristics and the potential ly legitimate nature of IRP, but not presenting argumen ts about how his faith in God, t he CSFC, and Pastor Banks influenced his actions whe n operating IRP. The district c ourt rejected Mr. Walker’s request for a downward variance and sentenced him to 1 35 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 mo tion to the district court, acc ompanied by a motion to restrict a ccess to his § 2255 f iling. The § 2255 moti on and the memorandum in support of the moti on to restrict ar e marked as “ restricted documentLevel 2” such that only Mr. Walke r, the government, and the cou rt can access the documents. Mr. Walker’s § 2255 mo tion raised three claims, incl uding that Ms. Lawson operated under an act ual conflict of interest when r epresenting him at sentencing because Pastor Banks d irected Ms. Lawson’s mitigatio n strategy. The Government filed a non-restrict ed response to Mr. Walker’s § 22 55 motion. The district court convened a three- day evidentiary h earing, at whi ch sixteen witnesses testified. 3 The witnesses included (1) Mr. Walker; (2) Vernon Lee Gaines, a process

3 The minute entries from the hea ring reflect that fifteen witne sses testified. A review of the transcript reveal s a sixteenth witness testified.6 server; (3) Ms. Lawson; (4) Mr. L owther; (5) several former CSF C members; and (6) a witness offered as an expert f or the standard of a reasonably competent criminal defense attorney. Each witness te stified in open court. The dis trict court granted Mr. Walker’s § 2255 motion as to his claim that Ms. Lawson operated under an actual conflict of interest when she rep resented him at sentencing. At resentencing, the district court reduced Mr. Walke r’s sentence to seventy months’ imprisonment. After announcing Mr. Walker’s new sentence, the district court addressed Mr. Walker’s relationship with t he CSFC and Pastor Banks, a dis cussion which sheds some light on the restricted doc uments that we h ave reviewed bu t do not discuss in our opinion. In short, the distr ict court noted the control the CSFC and Pastor Banks held over Mr. Walker during the commission of his offense, incl uding how Pastor Banks required Mr. Walker to di scontinue communication with his parents if he wanted to remain in the CSFC. The district court also praised M r. Walker for divorcing himself from the beliefs of the CSFC and questioned w hether Pastor Banks espoused values consistent with Christianity. Finally, the dist rict court outlined actions taken by Pastor Banks s ubsequent to Mr. Walker question ing her divine prophecies, actions which the c ourt had deemed harassing. Inclu ded in those actions were Pastor Banks (1) excommuni cating 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 wh ich she attributed his father’ s cancer and the proliferation of his own muscle disease to his decision to spea k against her and the CSFC by filing his § 2255 motion.7 C. Motions to Restrict, to Rece ive Transcript, & to Unseal Following his resentencing heari ng, Mr. Walker moved to restric t access to the transcript of his § 2255 heari ng, supporting his motion to rest rict with a document that, itself, is restricted. Thr ough a text order accompanied b y a restricted access written order, the district court granted Mr. Walker’s motion t o restrict. Thereafter, Ms. Lawson, on behalf of hersel f and purportedly as counsel for Mr. Walker’s codefendants, moved to receive t he transcript from the day on w hich she testified, June 15, 2017. 4 In advancing the motion, Ms. Law son relied on 28 U.S.C. § 753 and her need to review the transcr ipt in preparation for defending against the attorney disciplinary proceedings. The dis trict court granted the motion with respect to Ms. Lawson’s own testimony but denie d the motion with respect to th e other witnesses who testified on June 15, 2017 . In support of the partial denia l, the district court cited its text order granting Mr. Walke r’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. Walk er’s codefendants, moved to receive t he transcript of all three days of the § 2255 hearing. This motion argued CSFC members n ever harassed any of the witne sses and challenged the propriety of the district court’s decision to gr ant Mr. Walker § 2255 relief. The district court entere d a text order denying the mot ion to receive a

4 Sometime after the re sentencing hearing but before this motion to receive the transcript, the district court judge initiated attorney discipl inary proceedings against Ms. Lawson in the Colorado Suprem e Court and the District of Co lorado.8 transcript of all three days o f testimony “for the same reasons as stated in [its partial denial of Ms. Lawson’s motion to r eceive the transcript of all witnesses on the day she testified].” 17-1415 App’x at 38. Ms. Lawson, again on beha lf of herself and Mr. Walker’s codefendants, filed an appeal. See Notice of Appeal, United States v. Harper , No. 1:09-cr-00266-C MA-2, (D. Colo. Nov. 1 0, 2017) ECF No. 109 3. In pertinent part, the notice of appeal reads: Gwendolyn M. Lawson Attorney o f Record for co-defendants, Demet rius K. Harper, Kendrick Barnes, Clint on A. Stewart, David A. Banks and David Zirpolo in the above named case, hereby appeal to the Uni ted States Court of Appeals for the Tenth C ircuit from Orders 1090 and 109 2 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 coun sel other than Ms. Lawson, mo ved to unseal the transcript of the § 2 255 hearing, arguing (1) it had a private interest in the transcript because statements in the transcript impugned its re putation in the community and (2) a general Firs t Amendment and common law publ ic right of access to judicial records indepe ndently countenanced against t he sealing of the transcript. In an unrestricted or der, the district court denied the CSFC’s motion, concluding the CSFC primarily s ought the transcript for persona l purposes and faulting the CSFC for failing to advance a “less intrusive alte rnative[]” than sealing the entire record. 18-1273 App’x at 84. The CSFC timely appeale d, with Ms. Lawson9 representing the CSFC on appeal . We consolidated the appeals in cases 17-1415 and
18-1273.
II. DISCUSSION Before reaching the merits of the se appeals, we address three p reliminary matters: (1) the identity of the appellant s in case number 17-1415, (2) our jurisdiction over these appeals, and (3) the parties’ mo tions to supplement the record on appeal.
A. Identity of Appellants in Case No. 17–1415 Case No. 17-1415 is an appeal fro m two district court orders: ( 1) Docket Number 1090, which denied Docket Number 1088—the motion to rece ive the transcript of the June 15, 2017 , portion of the § 2255 hearing; and (2) Docket Number 1092, which denied Dock et Number 1091—a motion to receiv e the full transcript of the § 2255 heari ng. The motions identify “Gwendol yn M. Lawson, Attorney at Law and Defendants , Demetrius K. Harper, David A. B anks, Clinton A. Stewart, David A. Zirpolo, and Ke ndrick Barnes, by and through their attorney” as the movants. 17-1415 A pp’x at 26, 31. Further, the notice of ap peal 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 fi led in Mr. Harper’s

case. From this, we conclude that, in addition to Ms. Lawson, Mr. Har per, Mr. Barnes, Mr. Stewart, and Mr . Zirpolo were movants below and are appellants in10 Case Number 17-1415. 5 However, we reach a differen t conclusion with respect to Mr. Banks. In 2011, prior to th e sentencing proceeding, Ms. Law son moved to withdraw from representing Mr. Banks, and a magistrate judge gr anted the motion. Thereafter, for purposes of sent encing and appeal, Mr. Torres r epresented 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 h im as an appellant in Case Number 17-1415.
B. Jurisdiction over Appeal We ordered the parties in both a ppeals to file jurisdictional m emoranda addressing whether Appellants n eed certificates o f appealabilit y (COAs) for this court to possess jurisdiction ove r the appeals. The Government and the Appellants in both appeals argue COAs are not needed because Appellants are n ot § 2255 movants and are not appealing from the di strict court’s order granting in part and denying in part Mr. Walker’s § 2255 motion . Mr. Walker agrees the CSFC doe s not need a COA

5 We acknowledge the docketing stat ement filed by Ms. Lawson in this court identifies only herse lf 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 districtcourt judgment or order, and th eir interests make joinder pract icable, they may file a joint notice of appeal. They may then pr oceed on appeal as a single appellant .” (emphasis added). Thus, where the motions identified Ms. Lawson , Mr. Harper, Mr. Barnes, Mr. Stewart, and Mr. Zir polo 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. Zir polo on the post-notice-of-appe al docketing statement.11 but argues the 17-1415 Appellant s 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 quest ion. See Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (“[U ]ntil a COA has been issued federal courts of appeals lack j urisdiction to rule on the meri ts of appeals from habeas petitioners.”). Thus, alt hough the parties are largely i n agreement that Appellants do not need COAs, we mu st assure ourselves that COAs are not required before considering the me rits of the appeals. See Chavez v. C ity of Albuquerque , 402 F.3d 1039, 1043 (10th Cir. 2005) (“[W]e ha ve a continuing oblig ation to assure ourselves that appellate j urisdiction exists.”); see also Am. Fire & Cas. Co. v. Finn , 341 U.S. 6, 17–18 (1951) (noti ng that parties cannot consent to the expansion of federal court jurisdiction). Section 2253 of Title 28 establis hes when a COA is required: “U nless a circuit justice or judge issues a certif icate of appealability, an appe al may not be taken to the court of appeals from . . . the final order in a proceeding unde r section 2255.” 28 U.S.C. § 2253(c)(1) (emphasis added). Meanwhile, Federal Rule o f Appellate Procedure 22 also addresses th e issuance of a COA, stating: In a habeas corpus proceeding in w hich the detention complained of arises from process issued by . . . a 28 U.S.C. § 2255 proceedi ng, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certific ate of appealability under 28 U .S.C. § 2253(c). If an applicant files a notice of appeal, t he district clerk must send to the court of appeals th e certificate (if any) . . . alo ng 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.12 Fed. R. App. P. 22(b)(1) (emphase s added). Based on the emphasi zed language in 28 U.S.C. § 2253(c)(1) and Federa l Rule of Appellate Procedure 22( b)(1), we conclude Appellants are not required to obtain a COA relative to their c hallenge to the district court’s decision to restrict acce ss to the § 2255 hearing trans cript. 6 First, by its terms, § 2253(c)(1 ) applies when an appeal is ta ken from “ the final order” in a § 2255 pro ceeding; but Appellants appeal from order s other than the final order granting Mr. Walker relief . Second, Rule 22(b)(1) focuses on the “applicant” needing to obtain a COA but doe s not place the same requirement on other individuals, such as Appellants, who might appeal from a collat eral 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 requi re a certificate only in an appeal by an applicant for a writ.”).

6 To the extent the 17-1415 Appe llants seek to challenge the dis trict court’s decision to grant Mr. Walker § 2255 relief, we need not opine o n whether a COA is required because a more apparent jurisdictional defect—a lack o f standing— precludes reaching the merits of their potential argument. Part ies have standing to challenge an action, if they “suff ered ‘some threatened or actu al 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)). W here a party relies on a “threatened injury” the “injury must be ‘certainly impending’” to confer standing, and a speculative or attenua ted 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 Appe llants do not identify any already-sustai ned injury resulting from the district court’s grant of habeas relief and their sugg ested prospective injuries are speculative and attenuated . Thus, the 17-1415 Appellants la ck standing to challenge the district court’s de cision to grant Mr. Walker § 2 255 relief.13 Our conclusion is consistent with the primary purposes of the C OA requirement: “to protect governme nt officials from the need to respond to large numbers of insignificant appeals. ” David G. Knibb, Federal Cour t 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 f ew appeals from § 2255 proceedi ngs involve collateral matters, such as the denial of a motion to access a transcript of a proceeding. Thus, the government would not be floode d with appeals if a COA is no t required before this court can take jurisdicti on over appeals from matters coll ateral to the § 2255 proceeding. Our conclusion is als o consistent with the conclusi on we reached in an unpublished order where we hel d § 2255 applicants appealing fro m 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 th at 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 a nd 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 mo tion to unseal, it follows non-applicants do not need COAs.14 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 b efore analyzing the three motio ns to supplement.
1. Legal Standard A party may supplement the record pursuant to either Federal Ru le of Appellate Procedure 10(e) or the inherent equitable power excep tion to the constraints placed on supplem entation by Rule 10(e). Although “Rule 10(e) allows a par ty 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) (in ternal quotation marks omitted). Under Rule 10(e), a party may modify the record on a ppeal “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 consid er 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. 1 994) (“Although this court may appropriately take judicial notice of developments that are a matter of public rec ord and are relevant to the appeal, our review of a grant of summary judgment is limite d to the record before the trial court at the time it made its ruling.” (citation omit ted)). Apart from Rule 10(e), “under some circumstances, we have an in herent equitable power to supplemen t the record on appeal.” Kennedy , 225 F.3d at 119215 (citing Ross v. Kemp , 785 F.2d 1467 (11th Cir. 1986)). 7 In determining whether proposed supplemental material qualifies for the inherent equit able power exception to Rule 10(e), a court should eval uate factors such as: “1) whe ther ‘acceptance of the proffered material into the reco rd would establis h beyond any d oubt the proper resolution of the pending issue; ’ [and] 2) whether remand for t he district court to consider the additional material would be contrary to the inter ests 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 s upplement the record with two e -mails Ms. Lawson received from her ex- husband, Stanley Solomon, a for mer 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 cann ot be added to the record through Rule 10(e). Furth ermore, 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 gove rning the development of the record are more exacting, see Rules 7 & 8 of the R ules Governing §§ 2254 & 2255 Proceedings, thi s court has cited Kennedy and the inherent equitable power exception in appeals from non-§ 2255 proceedings, see Rio Grande S ilvery 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 specifi c 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 “w hether supplementation is warran ted in light of the ‘unique powers that federal appe llate judges have in the contex t of habeas corpus actions’” (quoting Ross v. Kemp , 785 F.2d 1467, 1475 (11th Cir. 1986))).16 matter dispositive to these appe als such that the factors under lying the inherent equitable power exception to R ule 10(e) counsel against supplem entation. Therefore, we deny the 17-1415 Appellant s’ motion to supplement.
3. The CSFC’s Motion The CSFC moves to supplement th e record with (1) an undated let ter from a CSFC member to Mr. Walker’s pr obation officer detailing Mr. Wal ker’s August 28, 2018, attempted delivery of a bi rthday card to Kyle Walker—Mr. Walker’s son and a member of the CSFC; and (2) an August 28, 2018, letter from Kyl e Walker. As both of these letters were drafted s ubsequent to the district court’ s last order on June 1, 2018, the letters were not part of the district court record an d are not proper materials for supplementation under Rule 10(e). Furthermore, the letters do not prove relevant to the public right of access arg ument upon which we resolve th e CSFC’s appeal. Therefore, the factors underlyin g the inherent equitable power exception to Rule 10(e) counsel against supplementa tion, and we deny the CSFC’s m otion to supplement.
4. Mr. Walker’s Motion Mr. Walker moves to supplement th e record with (1) a June 14, 2 018, e-mail from a CSFC member to Mr. Walker’ s counsel; (2) a radio adverti sement about the district court judge; and (3) a letter from the Colorado Suprem e Court Office of Attorney Regulation Counsel indi cating that the disciplinary ac tion instituted by the district court judge against Ms. Lawson was resolved in Ms. Law son’s favor. The first two items post-date the d istrict court’s June 1, 2018, or der such that17 supplementation is not appropriate under Rule 10(e). Furthermor e, the first two items are neither dispositive nor relev ant to the issues that dominat e this matter. Accordingly, the inherent equita ble 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 Co lorado Supreme Court Office of Attorney Regulation Counsel, matters in state bar disciplinary proceedin gs 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 rec ord reflecting disciplinary proceedi ngs” as documents “appropriate for judicial notice”). And where we may take judicial notice of a matter that occurs s ubsequent to the district court’s ruling, suppl ementation is permissible. See Magnum Foods, Inc. , 36 F.3d at 1502 n.12. Furthermore, t he letter is rel evant to Ms. L awson’s argument that she has a personal interest in the full transcript because she needs it to properly defend against the state discip linary proceeding. Accordingly, we grant Mr. Walker’s motion with respect to the letter from the Colorado Supreme Cou rt Office of Attorney Regulation Counsel. H owever, because Ms. Lawson acknow ledges in her reply brief that the state disci plinary proceeding was resolved in her favor, we see no need to delay issuance of our r uling to allow Mr. Walker to for mally supplement the record. Rather, we accep t as true that the s tate disciplinary p roceeding concluded, but we permit Mr. Walker ten days f rom the issuance of this opinion to supplement the record.18 D. Analysis of Merits of Appeals We state the standard of review a nd the requirements governing preservation of arguments before outlining the la w surrounding the public’s rig ht of access to judicial records. Thereafter, we addre ss the public right of access argu ment in each appeal, concluding the district court abus ed its discretion when it den ied the CSFC’s motion to unseal but that the 17-1415 Appell ants failed to preserve a pub lic right of access argument. Finally, we consider a nd reject the 17-1415 Appellant s’ four additional arguments for vacating or reversi ng 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 re viewed for an abuse of discretion, but any lega l principles the district cour t applied when making its decision are reviewed de novo. Pickard , 733 F.3d at 1302. We apply the overarching abuse of discretion standard becau se the decision whether to se al or unseal is “necessarily fact-bound.” United States v. Hickey , 767 F.2d 705, 708 (10th Cir. 1985). A district court abuses i ts discretion where it “(1) com mits 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] inco rrect legal principl es”).19 2. Preservation Requirement “An appellant can fail to prese rve an appeal point through eith er forfeiture or waiver.” Sprint Nextel Corp. v. Middle Man, Inc. , 822 F.3d 524, 531 (10th Cir. 2016). “A federal appellate cour t will not consider an issue no t passed upon below.”
FDIC v. Noel , 177 F.3d 911, 915 (10t h Cir. 1999) (quoting Singleton v. Wulff , 428 U.S. 106, 120 (1976)). “Conseque ntly, when a litig ant fails to raise an issue below in a timely fashion and the court be low does not address the merit s of the issue, the litigant has not preserved the i ssue for appellate review.” Id. Finally, where a party forfeits an argument by not raisi ng it in district court, we wi ll only overlook the forfeiture if the party advanci ng the argument on appeal presen ts 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 f ailure to argue for plain error and its application on appeal . . . surely marks the end of the road fo r an argument for reversal not first presented to the district court.”).
3. Public Right of Access Argument On appeal, the Appellants argue t he district court, when granti ng Mr. Walker’s motion to restrict the § 2255 he aring transcript and denying th e various motions to gain access to said transcripts , failed to accor d proper weight to the public right of access to inspect judicial recor ds. We outline the prevailing l egal standard before analyzing the issue as t o each appellate case.20 a. Legal standard “It is clear that the courts o f this country recognize a genera l right to inspect and copy public records and docum ents, including judicial recor ds and documents.” Nixon v. Warner Commc’ns, Inc. , 435 U.S. 589, 597 (1978) (footnote omitted). Generally, this right is not cond itioned “on a proprietary inte rest in the document or upon a need for it as e vidence in a lawsuit.” Id. Rather, “[t]he inter est necessary to support the issuance of a wr it compelling access has been found , for example, in the citizen’s desire to k eep a watchful eye on the workings of publ ic agencies.” Id. at 597–98. Likewise, the common la w 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 a dvanced by the parties.” Pickard , 733 F.3d at 1302 (emphasis added) (internal quot ation marks omitted). And at lea st three factors may amplify this strong presumption in favor of public access. Firs t, the purposes behind allowing public access to judici al records are heightened when “the district court used the sealed documents to dete rmine litigants’ substantive l egal rights.” Id. (internal quotation marks omitte d). Second, where a criminal pr oceeding 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) (applyi ng right to access to pr eliminary hearings) ; cf. In re Hearst21 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 t he information sealed has alrea dy been disclosed in a public proceeding, a par ty’s personal intere st in sealing the m aterial 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 infor mation . . . could be unsealed.” ). The right of public access to jud icial records, however, is “no t absolute” as “[e]very court has supe rvisory power over its own records and f iles,” 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 quot ation marks omitted). Put anothe r way, “[t]he party seeking to seal any part of a j udicial record bears the heavy b urden of showing that ‘the material is the kind of information that courts will prote ct’ and that ‘disclosure will work a clearly d efined and serious injury to the party see king 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 stro ng presumption in favor of the public interest here, we do not conclude the CS FC necessarily perfected its arguments on each o f these factors. Nonetheless, these factors are matters the district court m ay need to address on remand.22 Situations where the right to pub lic access is sufficiently sub servient to a party’s interest include where t he records are likely to be use d for “improper purposes,” including “‘to gratify private spite or promote publ ic scandal’” or to “serve as reservoirs of libelous s tatements for press consumpti on.” 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 restr icting 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 cons ider whether supplying a redact ed version of the record would adequately protect t he interests of the party seek ing the seal); cf. Waller v. Georgia , 467 U.S. 39, 48 (19 84) (“[T]he party seeking to close the hea ring 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 c ourt must consider reasonable alternatives to closin g the proceeding.” (emphasis a dded)). 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 b efore it sealed, the court con tinues 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 shoul d closely examine whether circumstances have changed23 sufficiently to allow the pres umption allowing access to court records to prevail.”
Miller , 16 F.3d at 551–52. And, when re viewing a motion to unseal, th e district court must remember that “the party s eeking to keep reco rds sealed be ars 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 n ot continue to “apply the presumption of public access to judicial r ecords” when confront ed with motion to unseal). Finally, in granting a motion to seal, or denying a mo tion to unseal, “[t]he trial court must articulate [the interest warranting sealing] ‘ along with findings specific enough that a reviewing court can determine whether th e closure order was properly entered.’” Phoenix Newspapers, Inc. v. U.S. Dist. Court for the Dist. of
Ariz. , 156 F.3d 940, 949 (9t h Cir. 1998) (quoting Press-Enter. Co. , 478 U.S. at 9– 10). b. Analysis as to the CSFC The CSFC presented a public ri ght of access argument to the dis trict 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, inc luding the transcript of the § 2255 hearing, we conclude t he district court abused its d iscretion by (1) not

10 The CSFC moved to unseal the en tire record in Mr. Walker’s § 2 255 proceeding. The district court, however, only addressed the mot ion relative to the hearing transcript. And, on appe al, the CSFC does not specifica lly argue that the district court’s failure to addr ess its motion re lative to seal ed documents other than the transcript was error. Thus, w e confine our analysis to what the district court did decide—that the transcript of th e hearing would not be unsealed

.24 fully acknowledging the strong pr esumption in favor of the publ ic right of access, including several factors that h eightened the strong presumptio n 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 propo sing an alternative to seali ng the entire record. W e address each abuse of discretion in turn. When granting Mr. Walker’s moti on to restrict and denying the CSFC’s motion to unseal, the district c ourt failed to acknowledge and account for three facts that heightened the already str ong presumption in favor of the public right of access. First, the district court relie d on the § 2255 hearing testimon y to grant Mr. Walker relief. See Pickard , 733 F.3d at 1302. Second, the proceeding , although technically civil, impacted Mr. Walker’s cri minal sentence and occurred in the absence of a jury.
See Press-Enter. Co. , 478 U.S. at 12–13. Third, not only was th e § 2255 hearing not sealed such that the informati on restricted was already exposed to the public but during Mr. Walker’s resentencing hearing, the district court, i n 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 acknowledgi ng and addressing these facts i n its orders restricting the transcript and denying the C SFC’s motion to unseal, the dis trict court either failed to apply the appropriate l egal standard or failed to ade quately articulate its

11 At least one member of the CSFC , Ms. Lawson, was present at th e resentencing hearing, and the tr anscript of the resentencing he aring is not restricted.25 analysis in support of restricti ng the record so as to permit m eaningful appellate review. Next, by restricting access to the entire transcript, the distr ict court failed to narrowly tailor its order to the interest asserted by Mr. Walke r—that he and the former CSFC members that testifie d were likely to face harassme nt if the CSFC gained access to the transcript . It is not apparent why restric ting access to the testimony of Mr. Lowther, who ser ved as counsel for Mr. Walker and four of his codefendants, and of Mr. Gaines , who served process on Ms. Laws on, furthers the personal interest advanced by Mr. Walker. 12 Certainly, the district court did nothing to tie the private interests r aised by Mr. Walker to the need t o restrict access to the testimony of these two witnesses . And, the distric t court also failed to consider whether redacting aspects of the testimony of other witnesses, especially the expert witnesses, would allow for th e unsealing of their testimony. 13 Interestingly, the district cour t, in its order denying the CSF C’s motion to unseal, implicitly acknowledged it had not narrowly tailored it s order granting

12 We observe that, despite not h aving access to the transcript, the CSFC was well aware of Mr. Lowther’s and Mr. Gaines’s identities and rol es in the proceedings. Yet the district court did not c ite any evidence suggesting CSF C members took steps to harass Mr. Lowther or Mr. Gaines. Nor is it apparent from th e 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 o f the need to restrict entire ly access to the testimony of the expert for the standard of a reasonably compet ent criminal defense attorney, as redacting the expe rt’s name and place of employmen t is likely sufficient to mitigate the concerns raised by Mr. Walker.26 Mr. Walker’s motion to restrict wh en it stated: “Because of thi s Court’s need to protect virtually all of the witnesses at the hearing, includi ng Mr. Walker and his reasons for requesting habeas rel ief, which were discussed thro ughout the three-day hearing, sealing the transcript[] in [its] entirety is warrante d.” 18-1273 App’x at 84 (emphasis added). But if the rest riction was necessary to prote ct only “virtually all of the witnesses,” it follows tha t the restriction was not necessa ry for the protection of at least one witness. Yet, the d istrict court did not follow ou r precedent and narrowly tailor its orders restricting acce ss 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 acces s to the entire transcript. See id. (“CSFC presents this Court with no less intrusive alte rnatives, instead requesting c omplete and unfettered access to ‘all documents associate d with and introduced at the hearing, along with the immediate unsealing of the trans cript associated with the proce eding.’” (quoting id. at 67 (CSFC Mot. to Unseal at 3 ))). But the duty was on the dis trict court, not the CSFC, to consider alternatives t o restricting access to the ent ire transcript. See Davis , 890 F.2d at 1110; Waller , 467 U.S. at 48. And placing su ch 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 t he restricted transcript. Thus, the CSFC could not comb th rough the transcript and meanin gfully advance a narrower alternative than uns ealing the entire transcript.27 Where access to Mr. Walke r’s filings was restricted ab initio , the issue of restricting access to the r ecord proceeded in a quasi- ex parte manner, with the individuals and entity against whom Mr. Walker alleged wrongdoi ng 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 stat ed the requirements for restricting access to judicial r ecords nor critically analyzed whether sealing the full transcript was appropriate. And while the record supports the c onclusion that the CSFC is far from the most upsta nding litigant, the court was st ill required to carefully consider the public’s interest in judicial records and craft a narrowly tailored order. In summation, we conclude the dis trict court abused its discret ion when it denied the CSFC’s motion to uns eal. Accordingly, we vacate the district court’s order and remand for further proceedi ngs. On remand, the district cou rt should consider the factors that heighten the public right of access to the transcr ipt of Mr. Walker’s § 2255 hearing, address how the i nterests advanced by Mr. Walke r connect to the restriction placed on public acc ess to the testi mony of each wi tness, and consider whether there exists a narrowe r alternative to restricting acce ss to the full transcript. Finally, because a non-insignifi cant amount of time has elapsed since the district court restricted access to the j udicial records, the district c ourt 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 th e initial sealing was justified , when there is a subsequent motion to r emove such a seal, the district court sho uld closely examine28 whether circumstances have cha nged sufficiently to allow the pr esumption allowing access to court records to prevail.”).

c. Analysis as to th e 17-1415 Appellants Unlike the CSFC’s motion in the d istrict court, neither of the two motions to the district court filed by the 17-1415 Appellants raised a pub lic right of access argument. As such, the argument is forfeited. And although the 17-1415 Appellants raise the argument on appeal, nei ther their opening brief nor t heir reply brief presents the argument through the lens of plain error review. This is tr ue even though Mr. Walker, in his response bri ef, pointed out the forfeiture o f the argument. Accordingly, we do not reach the merits of the 17-1415 Appellan ts’ argument to unseal based on a pub lic 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 b y the 17-1415 Appellants The 17-1415 Appellants raise fo ur additional arguments for vaca ting 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 d istrict court had a duty to p rovide them notice and an opportunity to be heard before granting Mr. Walke r’s motions to restrict access to the records in his § 2255 proceeding. The 17 -1415 Appellants,29 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 a rgument on appeal through the lens of plain erro r review, we do not reach the mer its of the argument.
See id (“[T]he failure to argue for pla in error and its application o n appeal . . . surely marks the end of the road for an argument for reversal not firs t 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 wit hout merit. The relevant portion of 28 U.S.C. § 753 states: The reporter or other individual designated to produce the reco rd shall transcribe and certify such parts of the record of proceedings as may be required by any rule or order of court, including all . . . pro ceedings in connection with the imposition of sentence in criminal cases. . . . He shall also transcribe and certify such other parts of the recor d of proceedings as may be require d by rule or order of court. Upon the request of any party to any proceed ing which has been so recorded who has agreed to pay the fee theref or, or of a judge of the court, the reporter or other individual design ated to produce the record shall promptly transcribe the original reco rds 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 adde d). By its terms, § 753(b) con veys a right of access only to parties to the p roceeding and judges of the cour t. It does not convey any right of access to witnesses such as Ms. Lawson. Furthermor e, while Mr. Harper, Mr. Stewart, Mr. Zirpolo, and Mr. B arnes were parties to the cr iminal trial, they were30 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 obtainin g the full transcript because the transcript contains (1) false statements against her and she cannot defend her name and reputa tion as an attorney without ac cess to the transcript; and (2) statements relevant to t he disciplinary proceedings ins tituted against her in the Colorado Supreme Court and th e District of Colorado. Both o f these personal interest arguments were presente d to the district court. Ms. La wson’s first argument, however, is illogical. To the ext ent the transcript contains st atements against Ms. Lawson’s name and reputation, mai ntaining the restriction of ac cess and keeping the transcript out of the public e ye will protect Ms. Lawson’s name and reputation. Ms. Lawson’s second argument is par tially moot and partially unsupp orted by the record before us. As Ms. Lawson acknowle dges in her reply brief, the d isciplinary proceeding in the Colorado Suprem e Court was resolved in her fa vor. See 17-1415 Reply Br. at 5 (“The Attorney Re gulation has determined that At torney Lawson has not violated any Rules of Profe ssional conduct a nd did not prov ide Mr. Walker ineffective assistance of couns el.”). Thus, any need Ms. Lawson had for the full transcript relative to that pro ceeding evaporated with the term ination of the proceeding. As for the disciplin ary proceeding in the District of Colorado, Ms. Lawson fails to enlighten us as t o the nature of the charge(s) against her. Thus, Ms. Lawson has not demonstrated the district court abused its discr etion when it31 determined that providing her with a transcript of her own test imony was sufficient to permit her to defend against th e allegations levied by the dist rict court judge. d. Violation of Federal Rule of Appellate Procedure 4 Finally, Ms. Lawson argues the di strict court, by denying her a ccess to the full transcript, violated her consti tutional right to appeal, as pro vided by Federal Rule of Appellate Procedure 4. The cont ours of Ms. Lawson’s argument on this point are beyond our powers of comprehensi on given that (1) the district court docketed Ms. Lawson’s notice of appeal; (2) Ms . Lawson presented her appella te 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 t o argue that we cannot effectively consider her argum ents 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 in clude such an argument in the motions to the district c ourt or argue for plain error r eview 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 d ays from the i ssuance of this opinion to submit the letter fro m the Colorado Supreme Court Of fice 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 the32 district court’s orde r denying the CSFC’s motion to unseal and REMAND for further proceedings consistent with t his Order and Judgment. Entered for the Court
Carolyn B. McHugh Circuit Judge