                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         APR 26 2001
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 In re THE MATTER OF THE
 SEARCHES of 462 South Connell
 Avenue, Pitcher, Oklahoma, and Main
 and 2nd Street, Pitcher Oklahoma.
 ____________________________
                                                        No. 00-5114
 MORRISON KNUDSEN                                 (D.C. No. 00-SM-21-K)
 CORPORATION,
                                                     (N.D. Oklahoma)
               Movant - Appellant,
          v.
 UNITED STATES OF AMERICA,

               Respondent - Appellee.


                          ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and MURPHY , Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Morrison Knudsen Corporation (“MK”)             1
                                                           appeals an order of the district

court refusing to unseal informants’ affidavits which were used to support search

warrants of MK’s property. We affirm.



                                     BACKGROUND

       On February 14, 2000, the government, through its Assistant United States

Attorney, Ken Snoke, applied for two search warrants to search the two above-

captioned addresses. The warrants authorized the search of MK’s offices located

at the Tar Creek Superfund site in Pitcher, Oklahoma. The government

simultaneously moved to seal the affidavits supporting the two search warrants.

The magistrate judge issued the search warrants and sealed the affidavits. The

search warrants were executed and a number of items were seized.

       On February 24, 2000, AUSA Snoke went on vacation, leaving AUSA Neal

Kirkpatrick to supervise the MK investigation. On March 14, AUSA Kirkpatrick

filed an application to unseal the affidavits.     2
                                                       The magistrate judge approved the



       Since July 2000 MK has operated under the name “Washington Group
       1

International, Inc.” Because the parties refer to the appellant in this case as MK,
and since it was MK at the times relevant to this lawsuit, we refer to the appellant
as MK.

       The record reveals that there was some discussion between AUSA
       2

Kirkpatrick and MK’s counsel concerning unsealing the affidavits and the terms
and conditions under which they would be unsealed. The record contains no
further information about those terms and conditions.

                                             -2-
motion and unsealed the affidavits. On March 16 a story appeared in the      Grove

Sun Daily newspaper, which described the allegations in the affidavits but did not

disclose the identity of the informants identified in the affidavits. Upon returning

from vacation, AUSA Snoke learned that the affidavits had been unsealed and

promptly filed a motion to reseal the affidavits. The magistrate judge granted the

motion. MK then filed its own motion to unseal the affidavits. The magistrate

judge denied MK’s motion, citing the “informer’s privilege.” MK subsequently

filed what the magistrate judge construed to be a motion for reconsideration,

which the magistrate judge denied. MK brought another motion, styled a motion

for reconsideration or an objection to the magistrate judge’s findings and

recommendations or an appeal to the district court, seeking further review of the

magistrate judge’s decision not to unseal the affidavits.

      Noting that “the sole issue raised by Morrison Knudsen is Magistrate Judge

Joyner’s ruling that the government had not waived the ‘informant’s privilege’

through unsealing of the affidavit,” the district court ruled that “[t]he affidavits

will remain sealed.” Order at 2, Appellant’s App. at 82. This appeal followed.




                                    DISCUSSION




                                          -3-
       Procedurally, this case is unusual. Both parties assert that we have

jurisdiction, although the government raised serious questions below about the

jurisdiction of the magistrate judge and the district court over MK’s motions to

unseal the affidavits. Neither party elaborates on the basis for jurisdiction. We

have therefore undertaken our own independent inquiry, and we are satisfied that

we have jurisdiction over this appeal.       See Lawmaster v. United States , 993 F.2d

773, 774-75 (10th Cir. 1993) (assuming jurisdiction in similar setting, noting that

appellant’s “motion is . . . civil in nature”);         see also In re Eyecare Physicians of

America , 100 F.3d 514 (7th Cir. 1996) (assuming jurisdiction when subject of

search filed motion to have warrant application and affidavit unsealed);            White

Fabricating Co. v. United States      , 903 F.2d 404, 407-08 (6th Cir. 1990)

(concluding court had jurisdiction over appeal of Fed. R. Crim. P. 41(e) motion

for return of property seized even though no criminal prosecution commenced on

theory that “plaintiffs’ motion here is, in effect, a civil action initiated after and

during a criminal investigation”).

       As MK concedes, the only issue on appeal is whether the “informer’s

privilege” was waived or is, for some reason, unavailable. “What is usually

referred to as the informer’s privilege is in reality the Government’s privilege to

withhold from disclosure the identity of persons who furnish information of

violations of law to officers charged with enforcement of that law.”             Rovario v.


                                                  -4-
United States , 353 U.S. 53, 59 (1957). The privilege’s scope is “limited by its

underlying purpose.”     Id. at 60. Accordingly, “where the disclosure of the

contents of a communication will not tend to reveal the identity of an informer,

the contents are not privileged.”      Id. Similarly, “once the identity of the informer

has been disclosed to those who would have cause to resent the communication,

the privilege is no longer applicable.”       Id.

       Fundamental fairness imposes another limitation on the informer’s

privilege: “[w]here the disclosure of an informer’s identity, or of the contents of

his communication, is relevant and helpful to the defense of an accused, or is

essential to a fair determination of a cause, the privilege must give way.”         Id. at

60-61. Thus, we have held that “[t]he party opposing the privilege may overcome

it upon showing his need for the information outweighs the government’s

entitlement to the privilege.”      Lawmaster , 993 F.2d at 774 (quoting      Dole v. Local

1942, IBEW , 870 F.2d 368, 373 (7th Cir. 1989)). We also noted in             Lawmaster

that while the informer’s privilege typically arises in criminal cases like       Rovario ,

it may arise in civil contexts and that, in such cases, “the informer’s privilege is

arguably stronger, because the constitutional guarantees assured to criminal

defendants are inapplicable.”       Id. at 775. 3



       This case is, of course, more like Lawmaster than Rovario in that, although
       3

a criminal investigation is apparently pending, no indictment or other criminal
                                                                      (continued...)

                                               -5-
      We agree with the district court and the magistrate judge that MK has

failed to make a sufficient showing of a need to know the identity of the

informants such that the informer’s privilege must give way or is otherwise no

longer applicable. Despite the brief unsealing of the affidavits and the

publication of the article describing the allegations in the affidavits, the identity

of the informants has never been revealed to MK. The circumstances surrounding

the brief unsealing of the affidavits do not compel a different conclusion than that

reached by the district court–i.e., that MK has simply failed to show a need to

know the identities of the informants sufficient to overcome the privilege.

      We therefore AFFIRM the district court’s order determining that the

affidavits will remain sealed.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




      3
       (...continued)
charge has been brought. However, unlike Lawmaster, the criminal investigation
has, apparently, not been terminated either.

                                          -6-
