Gamboa v. Executive Office for United States Attorneys , 126 F. Supp. 3d 13 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EDGAR MOSQUERA GAMBOA, )
)
Plaintiff, )
)
V. ) Civil Action No. 12-1220 (RJL)
)
EXECUTIVE OFFICE FOR UNITED )
STATES ATTORNEYS, et al., ) E E L E D
) A
Defendants. ) SEP 0 l 2015
Clark, U.S. District & Bankruptcy
g—v Courts for the District of Columbia
MEMORANDUM OPINION
(August , 2015) [Dkt. #45]
Plaintiff Edgar Mosquera Gamboa (“plaintiff”) commenced this action under the
Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, seeking records pertaining to
a joint task force investigation by the Executive Office of the United States Attorneys
(“EOUSA”), the Federal Bureau of Investigation (“FBI”) (together, “defendants”), and
the Drug Enforcement Administration (“DEA”), into money laundering and cocaine
trafficking offenses for which plaintiff was ultimately convicted. See Compl. [Dkt. #1].
On August 26, 2014, the Court denied in part defendants’ first Motion for Summary
Judgment [Dkt. #26] on the grounds that: (1) the DEA did not demonstrate that its search
for records responsive to plaintiff‘s FOIA request was adequate; (2) the FBI did not
demonstrate that informant(s) provided information under an implied assurance of
confidentiality for purposes ofFOIA Exemption 7(D); and (3) neither the FBI nor the
Executive Office for Organized Crime Drug Enforcement Task Forces (“OCDETF”)
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demonstrated that the withholding of information under FOIA Exemption 7(F) was
appropriate. See generally Gamboa v. Exec. Office for US. Attorneys, 65 F. Supp. 3d
157 (D.D.C. 2014). The Court assumes familiarity with the factual and procedural
background of this case and, in the interest of judicial economy, addresses only the legal
issues now at hand in Defendants’ Renewed Motion for Summary Judgment [Dkt #45]
pertaining to the remaining three issues. Upon consideration of the parties’ pleadings, the
relevant law, and the entire record herein, the Court GRANTS defendants’ Motion and
DISMISSES the case.
STANDARD OF REVIEW
F OIA cases are typically resolved on motions for summary judgment. See Petit—
Frere v. US. Attny’s Oflicefor the S. Dist. 0fFlor., 800 F. Supp. 2d 276, 279 (D.D.C.
2011) (citations omitted), aff’a’per curiam, No. 11-5285, 2012 WL 4774807, at *1 (DC.
Cir. Sept. 19, 2012). A court will grant summary judgment 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 oflaw.” Fed. R. Civ. P. 56(a). In the FOIA context, an agency may meet its
burden solely on the basis of affidavits or declarations, see Valencia-Lucena v. US.
Coast Guard, 180 F.3d 321, 326 (DC. 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 (DC. Cir. 1981)
(footnote omitted).
exercising their duties, and/or during the course of undercover operations.” Id. The
FBI’s declarant further states that “[t]hese sources were in . . . position[s with] ready
access to and/or knowledge about the plaintiffs and his associates’ involvement in drug
trafficking and/or other violent crimes,” and that they routinely “provided information at
great risk to their safety and the safety of their families.” Id. The Court, for the reasons
articulated by the FBI’s declarant, agrees, and finds that defendants properly asserted
FOIA Exemption 7(D) to protect the identities of informants who proffered information
under circumstances of implied confidentiality.
11]. Exemption 7(F)l
‘ The DEA referred a three-page document to the OCDETF, Defs.’ First Mem., Decl. of Jill
Aronica (“First Aronica Decl.”) 1] 2 [Dkt. #26-7], an entity described as “a multi-agency program in the
Department of Justice that provides policy direction and funding to drug enforcement agencies for the
investigation and prosecution of high level drug trafficking organizations,” id. 11 8. The document was
“an administrative case initiation form that was required for OCDETF designation and funding of an
investigation targeting the Plaintiff.” Id. 11 14. Among other information, the form included “data
regarding the nature of the targeted organization, the special investigative techniques used or intended to
be used to disrupt and dismantle the organization, the goals ofthe investigation, and the
manpower/resource requirements anticipated,” id. fl 8, as well as relevant “names, personal identifying
information, [and] agency contacts and phone numbers,” id. 11 12. The OCDETF relied on Exemption
7(F) in conjunction with Exemption 7(C), Defs.’ Second Mem., Decl. of Jill Aronica (“Second Aronica
Decl.”) $111 2—3 [Dkt. #453], to withhold “the names and contact information of Special Agents employed
by the Drug Enforcement Administration (DEA) and the Department of Homeland Security (DHS), which
are two of OCDETF’s component investigative agencies involved on OCDETF task forces,” id. 11 2.
The Court has already found that the OCDETF case initiation form was compiled for law
enforcement purposes within the scope of Exemption 7, Gamboa, 65 F. Supp. 3d at 169, and that plaintiff
conceded the OCDETF’s argument with respect to Exemption 7(C), id. at 168. Because this information
properly is withheld under Exemption 7(C), a discussion ofthe applicability of Exemption 7(F) is not
warranted. See Roth v. US. Dep ’t of Justice, 642 F.3d at 1173 (restricting its analysis to the broader of
two potentially applicable FOIA Exemptions); Simon v. Dep ’t ofJustice, 980 F.2d 782, 785 (DC. Cir.
1994) (declining to address the applicability of FOIA Exemption 7(C) where another FOIA Exemption
applied).
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Exemption 7(F) protects from disclosure information contained in law
enforcement records that “could reasonably be expected to endanger the life or physical
safety of any individual.” 5 U.S.C. § 552(b)(7)(F). “In reviewing claims under [FOIA]
[E]xemption 7(F), courts have inquired whether there is some nexus between disclosure
and possible harm and whether the [ensuing document redactions] were narrowly made to
avert the possibility of such harm.” Antonelli v. Fed. Bureau ofPrisons, 623 F. Supp. 2d
55, 58 (D.D.C. 2009) (citing Albuquerque Publ’g Co. v. US. Dep ’t ofJusll'ce, 726 F.
Supp. 851, 858 (D.D.C. 1989)); see Linn v. Dep’t ofJustice, No. 92-1406, 1995 WL
631847, at *8 (D.D.C. Aug. 22, 1995) (noting court’s inquiry as to “whether there is
some nexus between disclosure and possible harm”). “Within limits, the Court defers to
the agency’s assessment of danger.” Amuso v. US. Dep ’t ofJusrice, 600 F. Supp. 2d 78,
101 (D.D.C. 2009). The Court here will so defer.
The FBI relies on Exemption 7(F) to withhold from two pages of records “specific
dates, time[s], details of drug transactions, such as place, individuals involved, modus
operandi, etc,” on the ground that release “would clearly reveal the identit[ies] of the
individuals referenced in these records,” and in this way “would endanger their [lives]
and/or physical safety.” Second Hardy Decl. fi 14. In support ofthis position, the FBI’s
declarant cites plaintiff” 5 status as “the leader of a drug trafficking enterprise which
involved money laundering and other criminal activities of a violent nature,” and the
multi-national breadth of the trafficking enterprise. Id. For example, the declarant
explains, “there were allegations that the plaintiff had been known to arrange murders to
avenge his operation.” Id. “Given the propensity of violence in the trade of illicit
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substances and the conviction of the plaintiff,” the FBI asserts that “there is a reasonable
expectation that the release of the identifying information of such individuals would pose
a danger to their life or physical safety.” Id.
Plaintiff, for his part, does little to assuage these fears. Rather, as stated
previously, plaintiff's opposition focuses on the seizure and forfeiture of currency, see,
e. g, Pl.’s Opp’n at 2-3, and on defendants’ alleged failure to produce information in
support of the claimed forfeiture, see, e. g., id. at 5. Aside from his broad, and
unsupported, assertions that defendants” FOIA Withholdings were inappropriate, see id. at
2, plaintiff fails to show that defendants’ reliance on Exemption 7(F) is improper. Nor,
for that matter, does plaintiff rebut defendants’ credible assertions that the release of the
requested information could pose a substantial safety risk to the individuals involved.
For these reasons, the Court concludes that the FBI adequately justified its decision to
withhold information under Exemption 7(F).
IV. Segregability
The Court turns, then, to the final issue of segregability. If a record contains some
information that is exempt from disclosure, any reasonably segregable information must
be released after deleting the exempt portions, unless the non-exempt portions are
inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see T ram-Pacific
Policing Agreement v. US. Customs Serv., 177 F.3d 1022, 1026-27 (DC. Cir. 1999). A
court errs if it “simply approve[s] the withholding of an entire document without entering
a finding on segregability, or the lack thereof.” Powell v. US. Bureau of Prisons, 927
13
F.2d 1239, 1242 n.4 (DC. Cir. 1991) (quoting Church ofScientology ofCaZ. v. US.
Dep ’l oft/2e Army, 611 F.2d 738, 744 (9th Cir. 1979)).
Based on all the supporting declarations and Vaughn indices filed in this case, the
Court concludes that the agencies adequately specify “which portions of the document[s]
are disclosable and which are . . . exempt.” See Vaughn v. Rosen, 484 F.2d 820, 827
(DC. Cir. 1973).
CONCLUSION
Accordingly, for the foregoing reasons, the Court concludes that the DEA has
shown that its search for records responsive to plaintiffs FOIA request was reasonable,
and that the FBI has shown that it properly withheld information under Exemptions 7(D)
and 7(F). Defendants’ Motion therefore will be GRANTED. In light of this decision,
and because no additional matters are outstanding, final judgment will be entered in
defendants’ favor and this case will be DISMISSED. An Order is issued separately.
I
K 1
l
RICHARD J. L
United States District Judge
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DISCUSSION
I. The Adequacy of the DEA’s Search for Responsive Records
I begin by addressing the adequacy of the DEA’s search for records responsive to
plaintiffs FOIA request. “It is elementary that an agency responding to a FOIA request
must conduct a search reasonably calculated to uncover all relevant documents, and, if
challenged, must demonstrate beyond material doubt that the search was reasonable.”
Truitt v. Dep ’t ofState, 897 F.2d 540, 542 (DC. Cir. 1990) (footnotes, brackets, and
internal quotation marks omitted). Unfortunately for plaintiff, I conclude that the DEA’s
search was appropriate.
In July 2010, plaintiff submitted a FOIA request to the DEA that read in relevant part:
“I would like to have the two (2) lab report for the case # CR—
H-82-3
1) Lab report F3806
2) Lab report F3808
Requested information will consist of the dates from 1993- to
the Present Date
A Vaughn Index is requested and also expected
Mem. of P. & A. in Support ofDefs.’ Mot. for Summ. J., (“Defs’ First Mem.”) [Dkt.
#26-1], Decl. of William C. Little, Jr., (“Little Decl.”), Ex. A (Freedom of
Information/Privacy Act Request for Records dated July 29. 2010) [Dkt. #26-6]. DEA
staff construed plaintiffs request as one “seeking two (2) laboratory reports associated
with Criminal Case Docket No. CR-H—9382-3 for Lab Report No. F3806 and F3 808.”
Mem. of P. & A. in Support of Defs.’ Renewed Mot. for Summ. J. (“‘Defs.’ Second
Mem.”) [Dkt. #45], Supplemental Decl. of William C. Little, Jr., (“‘Supp. Little Decl.”) ]
3 [Dkt #45—1]. Based on the limited information contained in plaintiff’s request,
defendants determined that “information responsive to the plaintiff’s request is criminal
investigatory data compiled for law enforcement purposes that would be contained in a
criminal investigative file maintained in the DEA Investigative Reporting and Filing
System (‘IRFS’) and/or the files of the DEA laboratory that conducted the testing.”
Supp. Little Decl. 1] 4.
As defendants have made clear, however, “[a] criminal case name or docket
number is of no use in locating records contained [within] DEA investigative or
laboratory records systems.” Id. ]] 8. In order to retrieve a laboratory report, one must
determine “the ‘Laboratory Number’ and the location of the specific DEA laboratory that
performed the analysis, or the investigative file number, the exhibit number and the
laboratory that conducted the testing[.]” Id. Investigative case files in IRFS are
organized “according to the name of the principal suspect violator or entity known to
DEA at the time the file is opened[; the DEA] does not maintain a separate dossier . . . on
every individual or entity that is of investigative interest.” Id. 1] 10. To search IRFS for
investigative case files, one must use NADDIS, “the index and the practical means by
which DEA retrieves investigative reports and information from IRFS.” Id. 1] l l. A
NADDIS search then yields “a list of the investigative file number(s) and particular
[reports of investigations] or other documents by date, that contain information regarding
a particular individual or subject of an investigation.” Id.
The DEA’s declarant explains that, even though the agency had “insufficient
information to locate the requested records, a FOIA information specialist conducted a
NADDIS query using plaintiff’s name, date of birth and social security number[.]” Id. $1
13. The search and its results are described as follows:
The NADDIS query resulted in the identification of 22
investigative files in which plaintiff was mentioned and two
(2) files in which an arrest was indicated. Given that only one
ofthe files was opened in 1993 and the office opening the file
was located in Houston, Texas, the DEA South Central
Laboratory was chosen as the laboratory most likely to [have
received] requests for forensic testing.
A request was made to the South Central Laboratory to
provide a copy of FBI lab reports for Lab No. F3806 and
F3808 associated with DEA Investigative File No. M3-93-
2002.
The South Central Laboratory forwarded two (2) completed
DEA Form 75 identified with FBI File No. 245B-HO-29416
for Lab No. F3806 and 3808.
Id. W 14-16.
DEA staff located two pages of records and referred both pages to the FBI for
review. Little Decl. W 15-16; see id., Ex. D (Letter to plaintiff from Katherine L.
Myrick, Chief, Freedom of Information/Privacy Act Unit, POI/Records Management
Section, DEA, dated August 29, 2011). Thereafter, by letter dated October 18, 201 1, “the
FBI released to plaintiff the two pages referred by the DEA” in redacted form. Defs.’
First Mem., Decl. of David M. Hardy 1] 20 [Dkt. #26-4].
Rather than respond directly to defendants’ arguments about the adequacy of their
search, plaintiff alleges that defendants collectively failed to release information
pertaining to property seized by government agents at the time of his arrest. including
$2,495,733 from a vehicle, $255,710 from his residence, and $522 from his person on the
day. See Pl.’s Opp’n and Cross-Mot. for Partial Summ. Default J. of Defs.’ Renewed
Mot. for Summ. J. and Extension of Time 1]] 3, 8 [Dkt. #46]; Aff. Accompanying Claim
of Ownership of Property W 4, 8 [ECF No. 46]; Pl.’s Opp’n to Defs.’ Renewed Mot. for
Summ. J. (“Pl.’s Opp’n”) at 2-3 [Dkt #51]. Plaintiff argues, for example, that defendants
“do[] not claim that the funds seized . . . are contraband, were forfeited, or [were needed]
as evidence[.]” Pl.’s Opp’n at 5. He faults the government for its failure to mention the
criminal forfeiture statute in the indictment, see id, for its failure to give adequate notice
of its intention to forfeit the property, see id, and for its failure to maintain adequate
records regarding the property it seized, see id. at 6. He calls on this Court to “determine
what in fact[] happen[ed] to the records along with the seized funds,” id. at 7, and, if
appropriate, to return the funds to their “rightful owner,” id. at 8. This confuses the issue.
The propriety of the alleged seizure and forfeiture of currency are not matters within the
scope of the FOIA. More importantly, none of plaintiffs submissions addresses, let
alone undermines, the DEA’s showing that its search for the two lab reports plaintiff
originally requested was reasonable. Presented with no arguments to the contrary, the
Court therefore concludes that the DEA conducted a reasonable search for the material
contained within plaintiff’s FOIA request.
II. Exemption 7(D)
The Court next turns to the propriety of defendants’ decision to withhold
documents pursuant to FOIA Exemption 7(D). FOIA Exemption 7(D) protects from
disclosure records or information compiled for law enforcement purposes that
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could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency
or authority or any private institution which furnished
information on a confidential basis, and, in the case of a
record or information compiled by a criminal law
enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source.
5 U.S.C. § 552(b)(7)(D). There is no general “presumption that a source is confidential
within the meaning of [F OIA] Exemption 7(D) whenever [a] source provides information
[to a law enforcement agency] in the course ofa criminal investigation.” US. Dep ’t of
Justice v. Landano, 508 US. 165, 181 (1993); see Campbell v. Dep’t ofJustice, 164 F.3d
20, 34 (DC. Cir. 1998) (“The mere fact that a person or institution provides information
to a law enforcement agency does not render that person a ‘confidential source’ within
the meaning of exemption 7(D)”). Rather, “[a] source is [only] confidential within the
meaning of [F 01A] [E]xemption 7(D) if the source ‘provided information under an
express assurance of confidentiality or in circumstances from which such an assurance
could be reasonably inferred.” Williams v. Fed. Bureau oflnvestl'gation, 69 F.3d 1155,
1159 (DC. Cir. 1995) (per curiam) (quoting Landano, 508 US. at 170—74). “When
no express assurance of confidentiality exists, courts consider a number of factors to
determine whether the source nonetheless spoke with an understanding that the
communication would remain confidential." Roth v. US. Dep ’t ofJustice, 642 F.3d
1161, 1 184 (DC. Cir. 201 1) (internal quotation marks and citation omitted). Chief
among these factors are “[t]he nature of the crime that was investigated and the source’s
relation to it.” Landano, 508 US. at 179. If these factors support an inference of
confidentiality, then “the Government is entitled to [such] a presumption” for the purpose
ofExemption 7(D). Id. at 181.
Defendants argues that they are entitled to this inference. As the FBI’s declarant
explains at length, in the course of a given investigation, certain individuals may be
“interviewed under circumstances from which an assurance of confidentiality can
reasonably be inferred.” Defs.’ First Mem., Decl. of David M. Hardy (“First Hardy
Decl.”) 1] 58 [Dkt #26-4]. In such circumstances, these sources provide “detailed
information that is singular in nature concerning a specific investigation” that they might
not otherwise divulge. See id. ]] 62. Disclosure of their identities “could have disastrous
consequences” for these individuals, id., and could, moreover. impair the FBI’s ability to
obtain the cooperation of sources in future investigations, id. 1] 63.
Confidential informants were vital to the FBI’s criminal investigation of plaintiff.
As described by the FBI’s declarant,
[Plaintiff] Edgar Mosquera Gamboa along with his associates
was the subject of a joint task force law enforcement
investigation for criminal activities including money
laundering and [a] cocaine . . . trafficking enterprise.
Gamboa, the leader of this criminal enterprise[,] participated
in criminal activities of a violent nature which spanned across
several states i.e., Texas, Missouri, and California as well as
across several borders i.e., Col[o]mbia, South America, and
the Caribbean. Gamboa was eventually tried, convicted and
sentenced to life in prison; he is currently serving his sentence
at a United States Prison in Victorville, CA.
Defs.’ Second Mem., Second Decl. of David M. Hardy (“Second Hardy Decl.”) 1] 5 [Dkt.
#45-2]. The declaration further explains that, “[d]uring the course of [the FBI’s
investigation of plaintiff’s activities, the FBI] solicited and received information from a
variety of sources,” and “relied heavily on the collected information in the successful
prosecution ofplaintiff and his associates.” Id. fl 8. Unsurprisingly, some ofthe
information encompassed by plaintiffs FOIA request contains, or references,
confidential information that the FBI received during the course of its investigation. To
preserve the safety of its informants, the FBI withheld this information under Exemption
7(D). At the Court’s urging, defendants provided additional information about the basis
for its withholdings, which, for the reasons discussed below, amply supports a finding
that Exemption 7(D) applies.
First, the FBI withheld “the identity of a specific business entity/service provider”
which, in response to an administrative subpoena, supplied “the FBI specific information
pertaining to a business transaction executed by plaintif .” Id. ll 9. The FBI’s declarant
states that, “[a]lthough the business transaction in this . . . instance was not illegal, the
money used in the transaction was suspected to be the proceeds of an illegal business.”
Id. Not only was “[i]t is highly unlikely that this source would have provided this
information to the FBI voluntarily[] without the issuance of the subpoena,” id., but it was
“reasonable for these sources to fear retaliation from the companies’ employees and/or
the commercial establishment because [the] investigation involved drug trafficking and
other violent criminal behavior of plaintiff and his associates.” Id. After considering the
need for the subpoena and the sources entitlement to compensation for having produced
the information, the FBI deemed it “reasonable to infer that these sources provided the
information with an expectation of confidentiality.” Id.
Second, the FBI withheld “the names [of], identifying information [about], [and]
information provided by third party individuals who were interviewed under
circumstances in which an assurance of confidentiality may be inferred.” Id. 11 10. These
individuals, the declarant explains, “had direct access to and/or knowledge about
plaintiff s and his associates’ criminal activities pertaining to drug trafficking and other
criminal activity of a violent nature.” Id. These are sources with whom FBI agents
developed relationships and with whom they met “periodically” and “in private
locations” “in order to conceal the interaction[s].” Id. Information furnished by these
sources “includes specific details about drug transactions including time, place,
individuals involved and their participation, modus operandi, etc.” Id. Because only “a
very limited group of individuals” could know the information obtained by FBI officials,
the release of their identities or the information they provided “would allow plaintiff and
other individuals involved[] the opportunity to figure out their true identities.” Id. In
light of their “direct connection to the criminal activities of plaintiff and his associates,”
exposure of their identities “could place them, as well as their families, in danger should
their association and/or cooperation with the FBI and/or other law enforcement agencies
be publicly disclosed.” Id.
Lastly, the FBI withheld “the identity [of] and/or information provided by local
law enforcement personnel and/or agency." Id. 1i 1 l. The F BI’s declarant explains that
the FBI routinely obtained information from law enforcement investigating drug
trafficking in the Houston, Texas area, and from their “own confidential sources, during
the course of personal interaction with some member of the organization, while
10