United States v. Koch

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 26, 2024
• Docket: 23-1259
• Status: Unpublished

Opinion

Appellate Case: 23-1259 Document: 010111022086 Date Filed: 03/26/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 26, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-1259 (D.C. No. 1:20-CR-00098-CMA-GPG-2) SHIRLEY KOCH, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, BALDOCK, and MURPHY, Circuit Judges. _________________________________

Defendant Shirley Koch, a former Sunset Mesa funeral home employee, pleaded

guilty to one count of mail fraud and aiding and abetting arising out of a scheme in which

she and her codefendant stole and sold bodies and body parts of hundreds of decedents to

medical research companies. Defendant filed a direct appeal of her sentence that remains

pending. Separately, in the instant appeal, Defendant challenges the district court’s Order

Modifying Protective Order. That order granted the Government’s request to disclose

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-1259 Document: 010111022086 Date Filed: 03/26/2024 Page: 2

limited discovery to the decedents’ attorneys in a related civil case. Defendant’s counsel

filed a brief pursuant to Anders v. California and a motion for leave to withdraw as counsel

from this appeal. 386 U.S. 738 (1967). Defendant and the government elected not to

respond. Upon review of the record, we agree with defense counsel that there are no non-

frivolous grounds for this appeal. Accordingly, we GRANT counsel’s motion to withdraw

in this appeal and DISMISS this appeal.

In June 2021, at the Government’s request, the district court entered a protective

order limiting disclosure of discovery in this case to defense counsel, defendant, and

defendant’s retained experts. Defendant subsequently pleaded guilty. Then, in March

2023, private counsel for the decedent victims (“private litigants”) requested a plethora of

specific documentation from discovery in this criminal case for use in two related civil

cases. In response, the Government moved the district court to disclose two sets of files

for each victim to the private litigants. The Government reasoned that the files were in the

FBI’s possession and would not be available to the private litigants by any other means

without undue hardship. Defendant opposed the motion, arguing (1) her pending

sentencing appeal prevents disclosure and (2) the files are property of decedents and cannot

be turned over by the Government without civil forfeiture proceedings.

The district court rejected Defendant’s arguments and modified the protective

order to allow limited disclosure of the specific files that the Government requested to

the private litigants. First, the district court held it retained jurisdiction despite

Defendant’s pending sentencing appeal because modification of the protective order is

a collateral matter, unrelated to the merits of Defendant’s appeal. R. Vol. I at 38-39

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(citing Garcia v. Burlington N.R. Co., 818 F.2d 713, 721 (10th Cir. 1987)). Second, the

district court noted its broad discretion to modify the protective order and held

Defendant failed to articulate how the modification would prejudice their substantial

rights. The court further explained that Defendant’s potential “desire to make the civil

litigation pending against [her] more burdensome is not legitimate prejudice.” R. Vol.

I at 41 (citing United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1428 (10th Cir.

1990)).

Under Anders, counsel may “request permission to withdraw where counsel

conscientiously examines a case and determines that any appeal would be wholly

frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir.2005) (citing

Anders, 386 U.S. at 744). “The [c]ourt must then conduct a full examination of the

record to determine whether defendant's claims are wholly frivolous. If the court

concludes after such an examination that the appeal is frivolous, it may grant counsel’s

motion to withdraw and may dismiss the appeal.” Id. Defense counsel filed an Anders

brief advising the Court that Defendant’s appeal is wholly frivolous. We agree, grant

counsel’s motion, and dismiss Defendant’s appeal of the protective order.

As a preliminary matter, we find no non-frivolous grounds for appealing the

district court’s holding that it had jurisdiction to modify the protective order despite

Defendant’s sentencing appeal. Defendant’s sentencing appeal challenges the district

court’s calculation of her Guidelines sentence and its decision to impose an upward

variance. See United States v. Shirley Koch, Appeal No. 23-1078. There is no question

that modifying a protective order to grant narrow discovery to different parties in a

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civil case involving different claims is a matter collateral to the substantive issues of

Defendant’s sentence calculation. See Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th

Cir. 1997) (“The modification of the protective order is a matter collateral to the

substantive issues in this litigation.”).

Furthermore, nothing in the record suggests the district court erred by modifying

the protective order. We review the district court’s modification of the protective order

for abuse of discretion. S.E.C. v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271

(10th Cir. 2010). “[W]here an appropriate modification of a protective order can place

private litigants in a position they would otherwise reach only after repetition of

another’s discovery, such modification can be denied only where it would tangibly

prejudice substantial rights of the party opposing modification.” United Nuclear Corp.,

905 F.2d at 1428 (citation omitted). Defendant does not dispute that if the private litigants

proceeded with discovery, they would be able to obtain the requested documents under

Federal Rule of Civil Procedure 26(b)(1). See Fed. R. Civ. P. 26(b)(1) (allowing parties to

“obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim

or defense and proportional to the needs of the case[.]”). Moreover, Defendant did not

argue that modification of the protective order would prejudice her rights, and the Court

cannot identify any potential prejudice. As such, we conclude the district court acted

within its discretion in modifying the order.

***

We agree with counsel that there is no nonfrivolous basis upon which Defendant

can challenge the district court’s modification of the protective order. Accordingly,

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Defendant’s appeal is wholly frivolous. Counsel’s motion to withdraw in this appeal is

GRANTED and this appeal is hereby DISMISSED.

Entered for the Court

Bobby R. Baldock Circuit Judge