Gutierrez v. Executive Office for U.S. Attorneys ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTONIO GUTIERREZ, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-1524 (BAH)
)
EXECUTIVE OFFICE FOR )
UNITED STATES ATTORNEYS, )
)
Defendant. )
MEMORANDUM OPINION
Antonio Gutierrez (“plaintiff”) brings this action under the Freedom of Information Act
(“FOIA”), see 5 U.S.C. § 552, to obtain records allegedly maintained by the Executive Office for
United States Attorneys (“EOUSA”), a component of the United States Department of Justice
(“DOJ” or “defendant”). Pending before the Court is Defendant’s Motion for Summary
Judgment, ECF No. 14, which, for the reasons discussed below, is granted.
I. BACKGROUND
Plaintiff was convicted in the United States District Court for the District of New Mexico
on three charges of production of child pornography and sentenced to thirty years in prison.
Def.’s Mem. of P. & A. in Support of Mot. for Summ. J. (“Def.’s Mem.”) at 2 n.1, ECF No. 14-
1; Def.’s Mot, Ex. 2, Decl. of Marisa Ong (“Ong Decl.”) ¶ 1, ECF No. 14-4; see Gutierrez v.
United States, No. 14-2129 (10th Cir. Sept. 14, 2015) (affirming conviction of three counts of
producing child pornography pursuant to 18 U.S.C. §§ 2251(a) and 2256 and 360-month prison
sentence). Thereafter, by letter dated October 2, 2019, plaintiff sent a request to EOUSA listing
the following nine items of interest:
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1. INFORMATION OF WHERE MY “COMPUTER” WAS
MADE (LAP TOP) SUCH AS CHINA, INDIA, ETC.
2. INFORMATION OF WHERE MY “CELL PHONE” WAS
MADE SUCH AS CHINA, INDIA ETC.
3. INFORMATION OF WHERE VICTIMS CELL PHONE WAS
MADE SUCH AS CHINA, INDIA ETC.
4. INFORMATION OF “COMPUTER FORENSIC ANALYSIS”
REPORT, IN REGARDS TO DELETED FILES IN MY
COMPUTER (LAP TOP)
5. TYPED TRANSCRIPT OF “TEXTING MESSAGES”
BETWEEN MYSELF AND JANE DOE FROM AUGUST 1,
2011 THRU NOVEMBER 7, 2011
6. NAME OF LOCATIONS OF PICTURES OF VICTIM
CROSSING INTERSTATE AND FOREIGN COMMERCE.
7. TYPED TRANSCRIPT OF VIDEO TAPED INTERVIEWS OF
VICTIM BY APD AND CPS
8. TYPED TRANSCRIPT OF VIDEO TAPED INTERVIEW OF
ELENA PICKUP BY APD AND CPS
9. LISTING OF ALL EVIDENCE SEIZED UNDER VAUGHN
INDEX
Def.’s Statement of Undisputed Material Facts (“Def.’s SMF”), Attach. A at 2-3 (emphasis in
original), ECF No. 14-2. EOUSA acknowledged, by letter dated October 22, 2019, receipt of
plaintiff’s request, which was assigned tracking number EOUSA 2020-000170. Def.’s SMF ¶ 2;
see id., Attach. B. EOUSA’s letter alerted plaintiff to the possibility that he may incur fees
associated with processing his request, but that the agency would provide two hours of search
time and 100 pages of records at no cost to plaintiff.1 See id., Attach. B at 1. EOUSA suggested
that plaintiff modify his request to narrow its scope, thereby reducing any potential fees. See id.1
“No fee may be charged . . . for the first two hours of search time or for the first one hundred
pages of duplication.” 5 U.S.C. § 552(a)(4)(A)(iv)(II).
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Since plaintiff had been tried and convicted in the District of New Mexico, EOUSA staff
referred the matter to the United States Attorney’s Office for the District of New Mexico
(“USAO-NM”). See Def.’s SMF ¶¶ 3-4. Marisa Ong, the Assistant United States Attorney who
prosecuted plaintiff’s criminal case, see id. ¶¶ 5-6, conducted a search for records responsive to
plaintiff’s FOIA request and supplied EOUSA’s supporting declaration, see Ong Decl. ¶ 1;
Def.’s SMF ¶¶ 5-6. The declarant was “familiar with the gathering and handling of certain items
of evidence . . . obtained from the Federal Bureau of Investigation (‘FBI’) during its
investigation and [the USAO-NM’s] prosecution of [p]laintiff, as well as the disposition of the
evidence following the trial.” Ong Decl. ¶ 1.
The declarant reviewed the criminal case’s docket entries on the Court’s Public Access
Computer Electronic Records System (“PACER”) and ordered the closed trial file. Def.’s SMF ¶
8; Ong Decl. ¶ 4. Next, she determined that USAO-MN did not have information responsive to
Items One, Four, Five, Six, Seven and Eight of plaintiff’s FOIA request.
As to Item One, which asked where plaintiff’s computer was made, see SMF ¶ 7, the
declarant determined that this “computer, which was seized by the FBI during [its] investigation,
was returned to the FBI because it contained contraband (e.g., images of child pornography),” id.
¶ 12. Similarly, the “Computer Forensic Analysis Report” plaintiff sought in Item Four, believed
to be “the original Forensic Too[l] Kit report,” “would have been returned . . . to the FBI for
safekeeping and/or destruction, as is the common practice in the District of New Mexico.” Ong
Decl. ¶ 9; see Def.’s SMF ¶¶ 9, 18.
Items Five, Seven and Eight sought transcripts of a videotaped interview. See SMF ¶ 7.
The declarant “did not recall receiving those transcripts, and they were not introduced into
evidence at Plaintiff’s trial.” Id. ¶ 10. She did locate a portion of the trial transcript containing
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testimony of a case agent responsive to Items Two and Three of the request. Id. ¶ 13. “[S]he
printed that portion of the transcript,” id., and provided two pages of records to the agency’s
FOIA contact, id. ¶ 21.
Meanwhile, by letter dated November 4, 2019, plaintiff modified his FOIA request, see
id. ¶ 14, limited to the following items:
Request 1: Exculpatory evidence negates defendant’s specific
intent, 18 U.S.C. § 2251(a), -- defendant acted for purpose of
producing . . . Request 2: Computer Forensic Evidence Lab Report,
of Ms. Doe photo description between May 2nd to Aug. 3rd, of
2011, sending Selfies from phone to defendant. Photo 1 – Doe in
bathroom standing in underwear garments. Photo 2 – Doe in
bathroom, partially nude. Photo 3 – Doe in bathroom, fully nude.
All Selfies were dome [sic] alone.
Id., Attach. D. Plaintiff also instructed that EOUSA “not search beyond two hours [or] duplicate
beyond 100 pages.” Id.Request 2 of the modified request corresponded with Item Four of the original FOIA
request. Def.’s SMF ¶ 17. The “Computer Forensic Evidence Lab Report” plaintiff requested
was “a record generated by the Regional Computer Forensic Laboratory which assists the FBI
with investigations dealing with computer forensic evidence.” Id. As stated above, the report
had been returned to the FBI. Id. ¶ 18. Likewise, the photographs plaintiff requested originated
from and were returned to the FBI “after the expiration of time for [p]laintiff to file a notice for
direct appeal and motions for collateral attacks on his convictions.” Id. ¶ 19.
Lastly, the index to which plaintiff referred in Item Nine of the original request was a list
of items seized by the FBI prepared by FBI Special Agent Victoria Vaughn. Def.’s SMF ¶ 11. It
“most likely could be found in [the] criminal case file.” Ong Decl. ¶ 16. By the time the
declarant received the closed criminal case file, however, the two-hour search time had expired.
See id.4
The only responsive record located was the “portion of the trial transcript . . . obtained
from PACER” addressing Items Two and Three of the original FOIA request. Id. ¶ 15. EOUSA
released this portion of the transcript to plaintiff on January 30, 2020. See Def.’s SMF ¶¶ 21-22;
see id., Attach. E.
The declarant averred that there are no “other locations within the USAO-NM where
records that might be responsive to [p]laintiff’s requests are likely to be located,” and she knows
of no “other method or means by which a further search could be conducted that would likely
uncover additional responsive records.” Ong Decl. ¶ 17.
II. LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings, . . .
together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks
omitted). An agency may meet its burden solely on the basis of affidavits or declarations, see
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999), as long as they
“describe the documents and the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record [or] by evidence of agency bad faith,”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (footnote omitted).
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III. DISCUSSION
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was reasonably calculated to uncover all relevant documents.” Valencia-
Lucena, 180 F.3d at 325 (citations and internal quotation marks omitted). To this end, the
agency may present and “[t]he court may rely on a ‘reasonably detailed affidavit, setting forth
the search terms and the type of search performed, and averring that all files likely to contain
responsive materials (if such records exist) were searched.’” Mobley v. CIA, 806 F.3d 568, 580-
81 (D.C. Cir. 2015) (quoting Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). A
search need not be exhaustive, see Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir.
1995), and it need not be perfect, see DiBacco v. U.S. Army, 795 F.3d 178, 191 (D.C. Cir. 2015)
(“[A]dequacy – not perfection – is the standard that FOIA sets.”). Rather, the search must be
reasonable depending on the circumstances of a particular case. See Weisberg v. U.S. Dep’t of
Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).
Plaintiff argues that the search was inadequate because EOUSA failed to produce three
items. See generally Pl.’s Response to Doc. #14 (“Pl.’s Opp’n”) at 1-2, ECF No. 16. He
complains that the EOUSA did not respond to Items Seven and Eight of the original request for
transcripts of videotaped interviews, id. at 1, even though the videos “were introduced at trial in
form of a video having no sound or audio, for the jury to watch (Sound deliberately turned off by
prosecution),” id. at 2. Nor did EOUSA respond to Request 1 of the modified request for
“[e]xculpatory evidence” to “negate[] . . . specific intent” to commit a crime, under 18 U.S.C.
§ 2251(a), which provides:
Any person who employs, uses, persuades, induces, entices, or coerces any minor
to engage in, or who has a minor assist any other person to engage in, or who
transports any minor in or affecting interstate or foreign commerce, or in any
Territory or Possession of the United States, with the intent that such minor engage
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in, any sexually explicit conduct for the purpose of producing any visual depiction
of such conduct or for the purpose of transmitting a live visual depiction of such
conduct, shall be punished . . . , if such person knows or has reason to know that
such visual depiction will be transported or transmitted using any means or facility
of interstate or foreign commerce or in or affecting interstate or foreign commerce
or mailed, if that visual depiction was produced or transmitted using materials that
have been mailed, shipped, or transported in or affecting interstate or foreign
commerce by any means, including by computer, or if such visual depiction has
actually been transported or transmitted using any means or facility of interstate or
foreign commerce or in or affecting interstate or foreign commerce or mailed.
Id. Neither challenge has merit.
EOUSA no longer is obligated to respond to plaintiff’s original FOIA request, which
included Items Seven and Eight for transcripts of videotaped interviews, because plaintiff
modified the request and eliminated these items. See Dillon v. Dep’t of Justice, 444 F. Supp. 3d
67, 84 (D.D.C. 2020) (concluding that plaintiff who narrowed the scope of initial FOIA request
could not “revert back” to the “initial, broader scope” of initial request). In any event, EOUSA
adequately explains why it did not, and could not, produce transcripts.
“Agencies must read FOIA requests ‘as drafted.’” Amadis v. U.S. Dep’t of State, 971
F.3d 364, 370 (D.C. Cir. 2020) (quoting Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984)).
Here, plaintiff did not request videotapes, he requested transcripts of the videotaped interviews
which, according to EOUSA’s declarant, “were not introduced into evidence at trial.” Ong Decl.
¶ 6. Further, the declarant explained, she did not “believe transcripts of the records [p]laintiff
requested for Items . . . Seven and Eight were ever obtained by” USAO-MN. Id. “[W]hen an
agency does not possess or control the records a requester seeks, the agency’s non-disclosure
does not violate FOIA because it has not ‘withheld’ anything.” DiBacco, 795 F.3d at 192 (citing
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980)).
Plaintiff is no more successful in challenging EOUSA’s failure to respond to Request 1 of
the modified FOIA request. “The plain language of FOIA makes clear that the agency’s
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obligation to search for responsive records is triggered when the records sought are ‘reasonably
describe[d].’” Ecological Rights Found. v. EPA, No. 19-CV-980, 2021 U.S. Dist. LEXIS 27748,
at *22 (D.D.C. Feb. 13, 2021) (quoting 5 U.S.C. § 552(a)(3)(A)). As defendant observes,
Request 1 “does not identify a document or category of documents that EOUSA could easily
discern from this request.” Def.’s Reply in Support of Mot. for Summ. J. at 3 n.4, ECF No. 17.
EOUSA must “construe a FOIA request liberally,” Nation Magazine v. U.S. Customs Serv., 71
F.3d 885, 890 (D.C. Cir. 1995) (citing Truitt v. U.S. Dep’t of State, 897 F.2d 540, 544-45 (D.C.
Cir. 1990)) (additional citations omitted), but EOUSA cannot be expected to divine which
records in its possession, if any, would qualify as “exculpatory evidence.”
“The fact that the search failed to locate . . . responsive records did not automatically
render the search inadequate.” Francis v. U.S. Dep’t of Justice, Office of Info. Policy, No. 17-
5233, 2018 U.S. App. LEXIS 17036, at *2 (D.C. Cir. June 20, 2018) (per curiam) (citing
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)). Moreover, plaintiff
cannot fault EOUSA for discontinuing its search efforts when, at plaintiff’s request, it ceased its
efforts after having expended the two-hour limit on searches provided at no charge.
IV. CONCLUSION
The record demonstrates that EOUSA conducted a reasonable search for records
responsive to plaintiff’s FOIA request, as modified, and complied with its FOIA obligations.
EOUSA is therefore entitled to summary judgment. An Order consistent with this
Memorandum Opinion will be issued contemporaneously.
DATE: April 27, 2021 /s/ Beryl A. Howell
BERYL A. HOWELL
Chief Judge
United States District Court for the District of Columbia
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