Leonard Peltier v. FBI ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1745
___________
Leonard Peltier, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Federal Bureau of Investigation, *
* [PUBLISHED]
Appellee. *
___________
Submitted: March 11, 2008
Filed: April 29, 2009 (corrected 5/01/09)
___________
Before BYE, SMITH, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Leonard Peltier was convicted by a jury in 1977 on two counts of first-degree
murder for his participation in the murder of two Special Agents of the Federal Bureau
of Investigation in 1975. He was sentenced to two consecutive terms of life
imprisonment, and this court affirmed the convictions and sentence. United States v.
Peltier, 585 F.2d 314 (8th Cir. 1978) (Peltier I). This court later considered several
appeals arising from Peltier’s collateral attacks on the judgment. United States v.
Peltier, 731 F.2d 550, 555 (8th Cir. 1984) (per curiam) (Peltier II); United States v.
Peltier, 800 F.2d 772 (8th Cir. 1986) (Peltier III); Peltier v. Henman, 997 F.2d 461
(8th Cir. 1993); United States v. Peltier, 446 F.3d 911 (8th Cir. 2006) (Peltier IV).
The convictions and sentence ultimately have withstood each challenge.
In 2001, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
Peltier requested from the Minneapolis and Chicago field offices of the FBI all records
pertaining to himself. In November 2002, dissatisfied with the FBI’s response, he
filed an action against the FBI seeking an order requiring disclosure of the requested
records. The FBI eventually disclosed 70,419 pages of records, but withheld 10,557
pages on the ground that these records were exempt from disclosure under FOIA. The
FBI cited, among others, the statutory provisions that exempt disclosure of law
enforcement records that “could reasonably be expected to constitute an unwarranted
invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C), or “could reasonably be
expected to disclose the identity of a confidential source.” 5 U.S.C. § 552(b)(7)(D).
The FBI moved for summary judgment on the ground that the records withheld
were properly exempt from disclosure under FOIA. After considering affidavits
submitted by the FBI, and a sample of approximately 500 withheld documents
submitted pursuant to an agreement of the parties, the district court1 concluded that
the FBI had properly supported its claimed exemptions under FOIA, and granted the
motion for summary judgment with respect to all but one category of documents. The
court ordered the FBI to disclose to Peltier any responsive documents regarding Anna
Mae Aquash that the FBI previously had disclosed to any other requester under FOIA.
As to all other withheld documents, the court ruled in favor of the FBI and dismissed
Peltier’s complaint. Peltier appeals, and we affirm.
1
The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota, adopting with elaboration the report and recommendation of the
Honorable Susan Richard Nelson, United States Magistrate Judge for the District of
Minnesota.
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I.
The background for this appeal is chronicled in prior opinions of this court. In
brief, on June 26, 1975, two Special Agents of the FBI, Jack Coler and Ronald
Williams, were murdered on the Pine Ridge Indian Reservation in South Dakota. At
the time, Peltier was on the reservation with a group from the American Indian
Movement (“AIM”), which was engaged in a political struggle with members of the
reservation over the form of government on the reservation. The FBI agents were
attempting to locate and arrest four individuals who were charged with armed robbery
and assault with a deadly weapon in a matter unrelated to Peltier. On June 26, after
the agents followed a vehicle in which they believed one suspect was riding, Williams
advised Coler by radio that the occupants of the vehicle were about to fire on the
agents. Firing commenced, and both agents were wounded by bullets fired from a
distance. The agents were then killed with a high-velocity, small-caliber weapon fired
at point blank range. Peltier I, 585 F.2d at 318.
Four persons, including Peltier, were charged with first-degree murder of the
FBI agents. Darrell Dean Butler and Robert Eugene Robideau were acquitted by a
jury, and the government dismissed charges against James Theodore Eagle. After
Peltier was extradited from Canada, he was tried and convicted by a jury on both
counts of murder. The government’s case was presented on alternative theories that
Peltier personally fired the fatal shots, and that he aided and abetted the murders.
Henman, 997 F.2d at 465, 469-70. In affirming the convictions, this court observed
that the case against Peltier was “primarily circumstantial,” Peltier I, 585 F.2d at 319,
but that the evidence of Peltier’s guilt was “strong.” Id. at 325.
Peltier’s defense theory at trial was that agents of the FBI had “conspired to
manufacture evidence against him, resorting to threats, intimidation, and subornation
in an effort to secure his conviction.” Id. at 328. The jury nonetheless convicted, and
this court held that the trial court’s rulings on evidence and jury instructions did not
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deprive Peltier of his rights to compulsory process and a fair trial as he sought to
pursue his theory of defense. This court stated that the use of affidavits of Myrtle
Poor Bear in the Canadian extradition proceedings was “a clear abuse of the
investigative process by the F.B.I,” id. at 335 n.18, but observed that Peltier did not
claim that he was extradited solely on the basis of Poor Bear’s affidavits, or that the
other substantial evidence presented was insufficient to warrant extradition. Id. at
335. With respect to Peltier’s contention that the FBI attempted to manufacture
evidence against Jimmy Eagle by concocting witness statements and soliciting
assistance from jailhouse informants who had contact with Eagle, this court concluded
that “there was no real proof that the F.B.I. solicited statements from the four
cellmates.” Id. at 333. Peltier later sought to raise other allegations of government
misconduct in a second motion to vacate his convictions under 28 U.S.C. § 2255, but
these claims were dismissed as an abuse of the writ, because they could have been
raised in a previous proceeding and did not tend to establish innocence. Henman, 997
F.2d at 472-74.
After the convictions were affirmed, Peltier obtained through the Freedom of
Information Act thousands of documents regarding the government’s investigation of
his case. Based on these documents, Peltier moved to vacate the judgment and for a
new trial pursuant to 28 U.S.C. § 2255, alleging primarily that the government
violated his right to due process of law by failing to disclose exculpatory evidence.
Most allegations of prejudicial concealment were dismissed without a hearing, but this
court directed an evidentiary hearing with respect to one FBI teletype that was not
available to Peltier until his post-conviction FOIA action. Peltier II, 731 F.2d at 555.
The trial court denied relief, and this court ultimately concluded that while the FBI
teletype was favorable to Peltier and would have allowed him to cross-examine certain
witnesses more effectively, there was no reasonable probability that the jury would
have acquitted Peltier if the new evidence had been available at trial. Peltier III, 800
F.2d at 775-80.
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In recent years, Peltier has requested documents pertaining to himself from
various FBI field offices. In correspondence with the Department of Justice, Peltier’s
counsel has asserted, among other things, that “the public has a strong interest in
determining whether the FBI used wrongful investigative techniques and framed Mr.
Peltier.” J.A. 41. This litigation arises from two of those FOIA requests, directed to
the Minneapolis and Chicago field offices.
In the district court, Peltier objected to the FBI’s withholding of certain
documents from sub-file N of the main file in Minneapolis regarding the investigation
of the murders. This sub-file included twenty-one volumes of what the FBI described
as “informant information.” J.A. 30. The district court considered Peltier’s objections
in light of affidavits submitted by the FBI’s Section Chief of the Record/Information
Dissemination Section, Records Management Division, and a sample of documents
that the court reviewed in camera. In a joint status report and proposed summary
judgment briefing schedule, the parties stipulated that “[g]iven the voluminous
number of responsive records released to plaintiff, the parties have agreed that a
representative sample of approximately 500 pages of records would be submitted to
the Court for review in conjunction with defendant’s [affidavits].” R. Doc. 47. The
parties agreed that ninety percent of these sample documents would be obtained from
sub-file N at the Minneapolis field office, and ten percent would be obtained from a
file pertaining to the ongoing investigation of the murder of Anna Mae Aquash, a
member of the American Indian Movement in the 1970s. See United States v. Looking
Cloud, 419 F.3d 781 (8th Cir. 2005) (affirming conviction for the first-degree murder
of Ann Mae Aquash).
After examining these materials, the district court concluded that the FBI’s
claims of exemptions were adequately supported, and that the agency properly
withheld documents from sub-file N. In particular, the court ruled that the FBI
properly withheld documents based on Exemption 1 relating to classified information,
5 U.S.C. § 552(b)(1), Exemption 2 for information related to internal personnel rules
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and practices of the FBI, id. § 552(b)(2), Exemption 3 for grand jury materials
protected by statute, id. § 552(b)(3), Exemption 7(C) for law enforcement records that
“could reasonably be expected to constitute an unwarranted invasion of personal
privacy,” id. § 552(b)(7)(C), Exemption 7(D) for law enforcement records that could
reasonably be expected to disclose the identity of a confidential source, id.
§ 552(b)(7)(D), and Exemption 7(F) for law enforcement records that could
reasonably be expected to endanger the life or physical safety of any individual, id.
§ 552(b)(7)(F).
II.
A.
Peltier’s lead argument on appeal is that the district court erred by failing to
review in camera all of the 10,557 pages withheld by the FBI to determine whether
they are exempt from disclosure under FOIA. The statute provides that the court “may
examine the contents of agency records in camera.” 5 U.S.C. § 552(a)(4)(B)
(emphasis added). This provision is “discretionary by its terms, and is designed to be
invoked when the issue before the District Court could not otherwise be resolved; it
thus does not mandate that the documents be individually examined in every case.”
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). We review the
district court’s decision on in camera review for abuse of discretion. See Juarez v.
Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008).
We have said that “[t]he role of in camera inspection . . . should be limited, for
it is contrary to the traditional judicial role of deciding issues in an adversarial context
upon evidence produced openly in court.” Cox v. Dep’t of Justice, 576 F.2d 1302,
1311 (8th Cir. 1978). The district court’s “primary role” is “to review the adequacy
of the affidavits and other evidence presented by the Government in support of its
position, utilizing in camera examination of the [documents] as an aid in determining
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whether the government’s affidavits are accurate and made in good faith.” Id. at 1312.
So long as the court has no reason to question the good faith of the agency, the court
is entitled to accept the credibility of the affidavits. Id.
Peltier’s position is that evidence of the FBI’s “bad faith” in connection with
the investigation and prosecution of the underlying murder case, rather than evidence
of bad faith in connection with the response to these FOIA requests, required the
district court to examine all of the withheld documents in camera. He relies on a
decision of the Sixth Circuit in Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1994), which
reasoned that “[e]ven where there is no evidence that the agency acted in bad faith
with regard to the FOIA action itself there may be evidence of bad faith or illegality
with regard to the underlying activities which generated the documents at issue.” Id.
at 242 (emphasis added). The Jones court indicated that in camera review is
warranted where “it becomes apparent that the subject matter of a request involves
activities which, if disclosed, would publicly embarrass the agency or that a so-called
‘cover-up’ is presented,” such that “government affidavits lose credibility.” Id. at 243.
Citing this court’s statement that the FBI’s use of Myrtle Poor Bear’s affidavits to
support extradition was a “clear abuse of the investigative process,” Peltier I, 585 F.2d
at 335 n.18, and that the government “improperly withheld” an FBI teletype that was
favorable to Peltier, Peltier III, 800 F.2d at 775, 779-80, Peltier contends that this case
fits the Jones model.2
2
Peltier also cites a statement of the Tenth Circuit in an appeal from a decision
of the United States Parole Commission: “Much of the government’s behavior at the
Pine Ridge Reservation and in its prosecution of Mr. Peltier is to be condemned. The
government withheld evidence. It intimidated witnesses. These facts are not
disputed.” Peltier v. Booker, 348 F.3d 888, 896 (10th Cir. 2003) (per curiam).
Elsewhere, the Tenth Circuit explained that all of the facts relied upon by the Parole
Commission could be found in previous decisions of the Eighth Circuit. Id. at 893.
The decisions of this court cited improper government conduct in the use of the Poor
Bear affidavits and the withholding of the FBI teletype. In post-conviction
proceedings, Peltier raised other allegations of government misconduct, but this court
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For several reasons, we are not persuaded that in camera review of all withheld
documents was necessary. First, Peltier did not argue directly to the district court that
in camera review of nearly 11,000 documents was required, and we are disinclined
to find that the district court abused its discretion by failing to adopt an unusual
procedure that was never advocated by the requester. Peltier stipulated that a
representative sample of approximately 500 pages of records would be submitted to
the court for review in conjunction with the FBI’s affidavits. He now says that his
agreement to have the court review 500 pages did not foreclose a contention that the
court should also conduct in camera review of the other approximately 10,000 pages.
That may technically be true, but the stipulation certainly could lead a reasonable
judge to believe that the parties had reached an accommodation about the degree of
in camera review that was warranted in the case. In response to the FBI’s argument
of waiver, Peltier quotes his counsel’s oral argument to the district court that it should
“set up a briefing schedule and take – and if appropriate, the Court deems it
appropriate, review these documents in camera.” Reply Br. 12. This statement,
however, came prior to the joint stipulation for in camera review of 500 pages, and
it merely asked the court to review the documents in camera if the court “deem[ed]
it appropriate.” Any suggestion that the district court was required to adopt the
extraordinary review procedure advocated here should have been urged directly to the
district court, so the court would have had an opportunity to consider the proposal and
explain its reasons for accepting or rejecting it.
Second, even were we to consider this argument for the first time on appeal, we
are satisfied that the district court’s procedure was adequate. Peltier points to nothing
about the FBI’s response to the instant FOIA requests that calls into question the good
did not reach the merits of those allegations, because they could have been presented
earlier and did not tend to show innocence. Henman, 997 F.2d at 472-74. The
specific instances of government misconduct cited in Peltier’s brief on this appeal are
the use of the Poor Bear affidavits in extradition proceedings and the withholding of
the FBI teletype.
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faith of the agency. Moreover, accepting the Sixth Circuit’s approach in Jones for
purposes of analysis,3 we are not persuaded that there is a strong inference that the
agency in this case is likely to withhold documents improperly to avoid
embarrassment for actions taken in the 1970s. To be sure, this court has identified
certain improper actions by the government in connection with Peltier’s case, and this
history is not irrelevant to the analysis under FOIA. But it should be recalled that one
of the two actions declared improper by this court – the withholding of the FBI
teletype that could have been used at trial to cross-examine the FBI’s ballistics expert
– was itself disclosed in response to a previous FOIA request by Peltier. Peltier II,
731 F.2d at 552-53. It would be odd to rely on an incident discovered only through
the FBI’s response to a FOIA request as the basis for a presumption that the FBI is
likely to respond in bad faith to this FOIA request, some twenty-five years later.4
3
Jones presented “an unusual case” that defined the “collateral nature of bad
faith in FOIA actions according to a very high standard that would infrequently be
met.” Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 546-47 (6th Cir. 2001). The
Jones court required in camera review of a sample of withheld documents only after
the requester’s conviction was vacated on the ground that the prosecution had
withheld exculpatory evidence that was material to the defense. See Jones v. A.R.
Jago, 575 F.2d 1164, 1168 (6th Cir. 1978).
4
Peltier argues that the FBI’s present-day “bad faith” is demonstrated by its
public statements on the FBI website concerning his case. Peltier asserts that the
website includes “demonstrably false” assertions that “Peltier’s extradition was based
on evidence other than Poor Bear’s affidavits,” and that “Poor Bear was never called
to testify at trial, and therefore, her information had nothing whatsoever to do with
Peltier’s conviction.” Appellant’s Br. 18-19. Peltier states that this court “found
differently” when it concluded that “[t]he use of the affidavits of Myrtle Poor Bear in
the extradition process was, to say the least, a clear abuse of the investigative process
by the F.B.I.” Appellant’s Br. 18-19 (quoting Peltier I, 585 F.2d at 335 n.18).
The quoted statements from the FBI’s website, however, are not at odds with
the opinions of this court. It is correct that Poor Bear was not a witness at Peltier’s
trial. Henman, 997 F.2d at 473. With respect to the extradition process, this court
explained that while two of Poor Bear’s affidavits “were considered by Canadian
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Third, the district court did employ in camera review of more than 500 pages
of withheld documents to aid in determining whether the FBI’s claims of exemptions
were supported and its affidavits made in good faith. The Jones case itself, on which
Peltier principally relies, did not mandate in camera review of all documents withheld
by the FBI, even though Jones’s request “clearly involve[d] activities which, if
disclosed, would publicly embarrass the agency.” Jones, 41 F.3d at 243 (internal
quotation omitted). Rather, the court in Jones concluded that in camera review of a
sample comprising 553 pages out of approximately 10,000 pages withheld or redacted,
together with the agency’s affidavits, provided “sufficient information” to decide
whether the FBI properly withheld responsive material. Id. at 244. Likewise, we
believe that the stipulated sample of approximately 500 pages, which resulted in the
submission of 569 pages out of 10,557 withheld, J.A. 69-70, was sufficient to create
an adequate record for decision by the district court in this case. We therefore find no
reversible error in the district court’s failure to conduct an in camera review of all
withheld documents.
B.
With respect to the specific exemptions at issue, Peltier argues that the district
court erred by upholding the FBI’s claim under Exemption 7(D), because many
informants “waived” their right to confidentiality by testifying in public proceedings.
Peltier did not present this argument to the district court. A party may not raise an
issue for the first time on appeal as a basis for reversal, except in narrow
circumstances, such as where the “obvious result of following the rule would be a
officials in the extradition proceedings,” Peltier I, 585 F.3d at 331, “Peltier [did] not
claim that he was extradited solely on the basis of Myrtle Poor Bear’s affidavits or that
the other evidence presented to the Canadian tribunal was insufficient to warrant
extradition.” Id. at 335. This court further observed that “other substantial evidence
of Peltier’s involvement in the murders was presented in the extradition proceedings.”
Id.
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plain miscarriage of justice or would be inconsistent with substantial justice.”
Seniority Research Group v. Chrysler Motor Corp., 976 F.2d 1185, 1187 (8th Cir.
1992). Although the Supreme Court has not decided the waiver issue raised by
Peltier, see U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 173-74 (1993), several
courts of appeals have held that public testimony does not “waive” the applicability
of Exemption 7(D) to information provided to the FBI by a confidential source, or to
information that would disclose the identity of a confidential source. Neely v. FBI,
208 F.3d 461, 466 (4th Cir. 2000); Ferguson v. FBI, 957 F.2d 1059, 1068 (2d Cir.
1992); Parker v. Dep’t of Justice, 934 F.2d 375, 379-81 (D.C. Cir. 1991); Irons v.
FBI, 880 F.2d 1446, 1455-56 (1st Cir. 1989) (en banc) (Breyer, J.); Kimberlin v. Dep’t
of Treasury, 774 F.2d 204, 208-09 (7th Cir. 1985) (per curiam); Lame v. Dep’t of
Justice, 654 F.2d 917, 925 (3d Cir. 1981). In view of these authorities, we see no
basis to conclude that entertaining Peltier’s new argument on appeal is necessary to
avert a plain miscarriage of justice. We therefore discern no reversible error in the
district court’s treatment of Exemption 7(D).
C.
Peltier also contends that the district court erred in applying Exemption 7(C),
which exempts the production of law enforcement records when it “could reasonably
be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C). As summarized by the district court, the FBI withheld names or other
data that would identify the following: “(1) third parties [who were] merely
mentioned within the records released to plaintiff; (2) persons ‘of investigative
interest’ to law enforcement agencies; (3) persons who assisted in the investigation of
[Peltier] with an express assurance of confidentiality; (4) persons who assisted in the
investigation of [Peltier] with an implied assurance of confidentiality; and (5) state
and local law enforcement personnel.” J.A. 190. These persons have “well-
recognized and substantial privacy interests in the withheld information.” Neely, 208
F.3d at 464; see Kuehnert v. FBI, 620 F.2d 662, 667 (8th Cir. 1980). The district court
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concluded that the privacy interests affected by release of this information outweighed
any alleged public interest in disclosure. We accept the district court’s factual
findings unless they are clearly erroneous, and we review the applicability of the
FOIA exemption de novo. See Wickwire Gavin P.C. v. U.S. Postal Serv., 356 F.3d
588, 591 (4th Cir. 2004).
Exemption 7(C) “requires the courts to balance the competing interests in
privacy and disclosure,” Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157,
172 (2004). In this balancing process, “the usual rule that the citizen need not offer
a reason for requesting the information must be inapplicable.” Id. To overcome a
legitimate claim of privacy interests under Exemption 7(C), a requester must show
that “the public interest sought to be advanced is a significant one,” and that “the
information is likely to advance that interest.” Id. “Public interest” in the context of
Exemption 7(C) means an interest in “[o]fficial information that sheds light on an
agency’s performance of its statutory duties,” U.S. Dep’t of Justice v. Reporters
Comm. for Freedom of Press, 489 U.S. 749, 773 (1989), and
“contribute[s] significantly to public understanding of the operations or activities of
the government.” Id. at 775. Where the requester asserts a public interest in improper
actions by responsible officials, “the requester must produce evidence that would
warrant a belief by a reasonable person that the alleged Government impropriety
might have occurred.” Favish, 541 U.S. at 174. If he does so, then there will exist “a
counterweight on the FOIA scale for the court to balance against the cognizable
privacy interests in the requested records.” Id. at 174-75. At that point, the court must
make a determination regarding “the significance of the public interest and the
historical importance of the events in question,” which may involve an evaluation of
the nexus between the requested documents and the purported public interest served
by disclosure.” See id. at 175.
In his communications with the Department of Justice about these FOIA
requests, Peltier urged through counsel that “[t]he public has a strong interest in
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determining whether the FBI used wrongful investigative techniques and framed Mr.
Peltier,” and that “[t]he documents encompassed by Mr. Peltier’s current FOIA
request could very well exonerate him and ultimately result in his release from
prison.” J.A. 41-42. The district court – like a district court in New York evaluating
Peltier’s FOIA request for FBI records from the Buffalo field office – thought it was
“clear” that Peltier’s “real interest in seeking disclosure is to gain information to
further attack his conviction.” J.A. 191 (quoting Peltier v. FBI, No. 03-CV-905S,
2005 WL 735964, at *15 (W.D.N.Y. Mar. 31, 2005), aff’d, 218 F. App’x 30 (2d Cir.
2007)). The district court further agreed with the New York district court, as affirmed
by the Second Circuit, that “[t]here is no public purpose, however, in disclosing
information to assist a prisoner in challenging his conviction.” Id.
Our court has not addressed whether there is a public purpose under FOIA in
the disclosure of information that might aid a prisoner in attacking his conviction.
The strongest support for the district court’s conclusion is the Fourth Circuit’s
decision in Neely, where the court reasoned “[t]he innocence of a particular defendant
in a particular case tells us nothing about matters of substantive law enforcement
policy that are properly the subject of public concern,” 208 F.3d at 464 (internal
quotation omitted), and cited the Supreme Court’s declaration that “FOIA was not
intended to supplement or displace rules of discovery.” Id. (quoting John Doe Agency
v. John Doe Corp., 493 U.S. 146, 153 (1989)). On this basis, the Fourth Circuit
concluded that “courts have sensibly refused to recognize, for purposes of FOIA, a
public interest in nothing more than the fairness of a criminal defendant’s own trial.”
Neely, 208 F.3d at 464.
The Seventh Circuit followed similar logic in Antonelli v. FBI, 721 F.2d 615
(7th Cir. 1983), saying “[t]he contention that the public shares Antonelli’s interest in
ensuring that his convictions were not obtained as a result of a violation of the
Constitution is insufficient” to identify a “viable public interest against which the
court could weigh the asserted privacy and agency interests at stake.” Id. at 619
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(internal quotation and citation omitted). And the Fifth Circuit in Burge v. Eastburn,
934 F.2d 577 (5th Cir. 1991), concluded that “[a]lthough there is undoubtedly a public
interest in fair trials and perhaps, more specifically, in the contents of the alleged
statements to the FBI, this is not the kind of public interest that compels disclosure.”
Id. at 580.
Other decisions are more nuanced. The Tenth Circuit, upon which Neely relied,
did say that “public interest in the fairness of a particular trial is not the kind of public
interest that compels disclosure under FOIA,” Hale v. U.S. Dep’t of Justice, 973 F.2d
894, 901 (10th Cir. 1992) (emphasis in original), vacated on other grounds, 509 U.S.
918 (1993), and observed that “[t]he weight of the public interest often will be
influenced by the degree to which the governmental conduct has general
applicability.” Id. (emphasis added). The court, however, said that it did not “mean
to imply that a matter of singular applicability can never be of substantial interest to
the public,” suggesting that such a situation may exist when “high ranking offices are
involved or when the asserted governmental misconduct has unique intrinsic public
significance.” Id. at 901 n.8. The Second Circuit, in a decision cited by the court in
Peltier’s action involving the Buffalo field office, said that a requester’s primary
purpose of attacking a conviction “will not necessarily prevent disclosure if there is
a coincidental public purpose sufficient to overcome” the asserted privacy interests.
Brown v. FBI, 658 F.2d 71, 75 (2d Cir. 1981). Because the requester in Brown failed
to show how disclosures concerning a witness in his criminal case would promote the
public interest in the “fair and even-handed administration” of the criminal justice
system, the court held that any benefits to the public were “too uncertain, indirect, and
remote” to overcome the witness’s privacy interests. Id. at 76 (internal quotation
omitted). The First Circuit in Carpenter v. U.S. Dep’t of Justice, 470 F.3d 434 (1st
Cir. 2006), said there is no public interest in supplementing an individual’s request for
discovery in a criminal case, but remarked that if “any of the requested material would
reveal how the government responded to informants and others who offer information,
a public interest might be served.” Id. at 441.
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We agree that a prisoner may not override legitimate privacy interests
recognized in Exemption 7(C) simply by pointing to the public’s interest in fair
criminal trials or the even-handed administration of justice. If that were true, then
“virtually every criminal defendant or target of an FBI investigation would be entitled
to FOIA disclosure by insinuating that the government had acted on false
information.” Id. FOIA would be employed as a supplemental discovery mechanism
in criminal cases, and the protection of privacy interests in Exemption 7(C) would be
virtually eliminated. Nor do we think that the magnitude of public interest in a
particular conviction alters the analysis under FOIA. Although Peltier lists various
celebrities and public officials who have expressed interest in his case, the “public
interest” under FOIA does not depend on the number of persons who are interested
in disclosures about a specific conviction.
Peltier contends that disclosure in this case, however, would advance a more
general public purpose, given the “gross abuse of power” by the FBI and the
“outrageous manufacturing of evidence and flagrant impropriety of the government
in producing false affidavits to secure Peltier’s extradition.” Appellant’s Br. 26, 27.
Specifically, Peltier argues that release of the records requested under FOIA would
“disclose to the public the FBI’s unconstitutional and utterly unethical efforts to
compromise attorney-client communications of AIM members by using informants.”
Reply Br. 19. He refers to counterintelligence tactics used by the FBI against AIM
in the 1970s, and cites in particular the activities of Douglass Frank Durham, a
“confidential source who infiltrated the highest levels of AIM,” id. at 20, including
the circle of AIM leader Dennis Banks. See United States v. Dodge, 538 F.2d 770,
777-78 (8th Cir. 1976); United States v. Crow Dog, 532 F.2d 1182, 1197-98 (8th Cir.
1976). Peltier quotes Durham’s testimony before the United States Senate that
although he was advised by the FBI not to engage in any activity that would violate
confidences of the defense, “[i]f Dennis [Banks] and I were sitting in a room and an
attorney would walk in and start taking, I couldn’t jump up and say, ‘I can’t be here,
the FBI won’t allow it.’” Reply Br. 20. This argument is consistent with other aspects
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of Peltier’s FOIA requests, where he adverted to the public’s interest in “scrutinizing
government intrusions into the rights of its citizens during its investigation of AIM
and the excesses engaged in by the FBI during the period in question.” J.A. 41.
Accepting, for purposes of analysis, that a public interest might be served by
disclosures about a particular conviction where the records also relate to matters of
“general applicability” or “unique intrinsic public significance,” Hale, 973 F.2d at 901
& n.8, we are not persuaded that the interests in disclosure asserted by Peltier are
sufficient to outweigh the recognized privacy interests at issue in this case. Peltier
interprets the Supreme Court’s decision in Favish to mean that once a requester
produces evidence that government improprieties might have occurred, then the public
interest in disclosure outweighs the privacy interests otherwise protected by
Exemption 7(C). The Court in Favish, however, said only that such a showing by a
requester establishes a public interest that must be weighed in the balance. 541 U.S.
at 174. Whether disclosure is required still depends on the significance of the asserted
public interest and the nexus between the requested documents and the purported
public interest. See id. at 175.
While improper actions by the government in Peltier’s case are a major theme
of his appeal, we think that his brief overstates that which has been established and its
legal significance in the analysis of Exemption 7(C). The use of the Poor Bear
affidavits in the extradition process was found by this court to be a clear abuse of the
investigative process. Peltier I, 585 F.2d at 335 n.18. But it is also true that Peltier
never argued that the other substantial evidence of his involvement in the murders was
insufficient to warrant his extradition. Id. at 335. The record does not establish that
the FBI engineered an extradition for which there was no evidentiary basis. While this
court concluded that the FBI teletype disclosed under FOIA after Peltier’s conviction
was “favorable to Peltier” and “improperly withheld from the defense,” Peltier III,
800 F.2d at 775, 779, the court also determined that the information was not material
to the defense, because there was no reasonable probability that its availability at trial
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would have affected the outcome. Id. at 779-80. So while this court has found certain
improprieties on the part of the government, they are not so severe and extensive as
to create a general public interest in disclosure regarding all matters related to Peltier’s
case that overrides the privacy interests of third parties recognized by Exemption 7(C).
We are also not convinced that there is a substantial nexus between Peltier’s
FOIA request and the specific public interest asserted by Peltier – namely, the
potential for disclosure of records that would disclose deliberate interference with
Peltier’s confidential attorney-client relationship. Peltier is in a position to know
whether third parties attended meetings between him and his counsel relating to his
criminal trial, but he has presented no evidence of any such infiltration. Any benefits
to the public from disclosure on the grounds asserted by Peltier are too uncertain and
remote to overcome the privacy interests of third parties, confidential sources, and law
enforcement personnel. Accordingly, we conclude that the district court committed
no error in determining that the FBI’s withholding of records under Exemption 7(C)
was properly supported.
We note, moreover, that the records to which Peltier directs most of his
attention – those including information that could reasonably be expected to disclose
the identity of a confidential source and information furnished by a confidential source
– are also protected by Exemption 7(D), which does not entail a balancing of public
and private interests. See McDonnell Douglas v. United States, 4 F.3d 1227, 1257 (3d
Cir. 1993). We see no reason to believe that other documents withheld under
Exemption 7(C) – i.e., those that would identify law enforcement personnel, persons
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of investigative interest, or third parties who were merely mentioned by the FBI
during the investigation – would shed light on allegations of deliberate interference
with attorney-client communications through the use of confidential informants.
* * *
The judgment of the district court is affirmed.
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