Marino v. Drug Enforcement Administration , 15 F. Supp. 3d 141 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GRISELLE MARINO,
Plaintiff,
v. Civil Action No. 06-1255 (GK)
DRUG ENFORCEMENT
ADMINISTATION,
Defendant.
MEMORANDUM OPINION
Plaintiff Griselle Marino ("Plaintiff" or "Marino") brings
this action against the United States Drug Enforcement
Administration ("DEA" or "the Government") under the Freedom of
Information Act ( '' FOIA") , 5 u.s.c. § 552. Marino seeks
documents related to a Government cooperator who testified
against her deceased ex-husband, Carlos Marino, at his trial for
drug conspiracy in 1997.
This matter is before the Court on the DEA's Renewed Motion
for Summary Judgment [Dkt. No. 65]. Upon consideration of the
Motion, Opposition, Reply, Sur-reply, oral argument at the
Motion Hearing of February 5, 2014, and the entire record
herein, and for the reasons stated below, the Government's
Motion is denied.
I. BACKGROUND
A. Factual Background1
1. The Criminal Prosecution
In 1997, Carlos Marino was convicted of narcotics
conspiracy in the Northern District of Florida and sentenced to
365 months in prison. The Government's primary witness at his
trial was a co-conspirator named Jose Everth Lopez ("Lopez").
Lopez testified that he and Carlos Marino worked for an
international drug importation and distribution ring known as
the "Company," which was run out of Bogota, Columbia by a man
named Pastor Parafan-Homen. Pl.'s Opp'n Ex. B (Trial Tr.) at
16, 20 [Dkt. No. 66-5 at ECF pp. 6-7].
Lopez stated that his job was to transport cocaine in flat-
``
bed trailer trucks from Texas to South Florida, where he was
paid by Carlos Marino. Id. at 16, 20-27, 31 [Dkt. No. 66-5 at
ECF pp. 6-15]. Lopez further testified that Carlos Marino was
the "banker" or "money man" of the organization, and that
whenever money was spent by the conspiracy whet.her for
1
Unless otherwise noted, the facts are undisputed and drawn
either from the parties' briefs, the Complaint, or the
Government's Statement of Undisputed Material Facts submitted
pursuant to Local Civil Rule 7 (h). For ease of reference, the
Court's citations to the exhibits appended to Plaintiff's
Opposition include, in brackets, the page numbers supplied by
the Court's Electronic Case Filing ("ECF") system.
-2-
drivers, vehicles, warehouse space, or other expenses - it came
from Marino. Id. at 33, 36, 39, 191-92 [Dkt. No. 66-5 at ECF
pp. 3-4, 18, 21-22]; see also Pl.'s Opp'n Ex. F (Order, Report
and Recommendation on § 2255 petition in United States v.
Marino, 3:97cr84/RV (N.D. Fla. Oct. 4, 2002)) ("Report &
Recommendation") at 6 [Dkt. No. 66-9].
The Government relied heavily on Lopez's testimony in its
opening and closing remarks and at sentencing. As Magistrate
Judge M. Casey Rodgers later observed on collateral review,
"Lopez was the government's key witness at trial and was the
primary witness who testified about defendant's involvement in a
conspiracy that actually moved cocaine." Pl.'s Opp' n Ex. F
(Report and Recommendation) at 7 [Dkt. No. 66-9]. Although
evidence from an unrelated investigation revealed that Carlos
Marino had been engaged in separate discussions with a
confidential informant named Edwin Rivas about importing cocaine
into the United States through the Miami airport, this plan was
never carried out, and there was little evidence linking it to
Parafan-Homen's group. See id. ("CI Rivas testified about
discussions he had with the defendant about cocaine importation,
but the importation plans were never realized."),
At sentencing, the trial Judge relied on Lopez's testimony
to conclude that Carlos Marino was a "station manager in Miami"
-3-
who "transfer[red] operations from Mexico and Houston and other
parts of the United States, including a number of major cities,
east coast and west coast." See Pl.'s ·Opp'n Ex. B (Sentencing
Tr.) at 11:20-12:24 [Dkt. No. 66-5 at ECF pp. 29-30]. This
finding provided the basis for the Judge to impose a three-point
sentencing enhancement under the Sentencing Guidelines. Id.
Lopez later admitted at the 1998 trial of Parafan-Homen in
the Eastern District of New York that he lied multiple times at
Carlos Marino's trial. Specifically, at Marino's trial, Lopez
purported to be a low-level participant recruited to work for
the Company in late 1995, whereas he later admitted that he had
been involved in the conspiracy since 1988, had met personally
with Parafan-Homen on several occasions, and had attended a
small meeting of high-level conspirators in Bogota, Columbia in
1994 to discuss reorganizing the criminal enterprise. See Pl.'s
Opp' n Ex. C at 3623-3627, 3665-66. (trial transcript in United
States v. Pastor Parafan-Homen, CR 95-0722) [Dkt. No. 66-6].
2. Collateral Proceedings
After his conviction was affirmed on direct appeal in 1999,
Carlos Marino filed a motion to vacate, set aside or correct his
sentence pursuant to 28 U.S. C. § 2255. See Pl.'s Opp' n Ex. A
(Joint Appendix) at 271 [ Dkt. No. 66-2] . He argued, inter alia,
that the Government committed misconduct by failing to correct
-4-
Lopez's perjured testimony at his trial. Id. at 291-98 [Dkt.
No. 66-3] . He further asserted that the Government violated its
obligations under Brady v. Maryland, 373 U.S. 83 (1963), by
suppressing notes of pre-trial interviews with Lopez, which
could have been used to impeach Lopez at trial and demonstrate
that his involvement in the conspiracy was more extensive than
he depicted. Id. at 277-282, 284-90 [Dkt. No. 66-2]. Carlos
Marino also claimed that the documents suppressed by the
Government would have shown that he (Carlos Marino) was not
involved in any of the operations of the conspiracy outside of
Miami, and that it was Lopez, not Marino, who was a manager of
the Parafen-Homen organization. Id. at 296-298 [Dkt. No. 66-3].
On October 4, 2002, Magistrate Judge Rodgers issued his
Report and Recommendation recommending that Carlos Marino's
motion for collateral relief be denied. While acknowledging
that "Lopez's testimony at the Parafan trial, in particular that
detailing his historical involvement in the conspiracy, was
'vastly different' from that given at the defendant's trial," he
determined that the "differences did not absolve defendant of
any responsibility or involvement in the conspiracy." Pl.'s
Opp'n Ex. F (Report and Recommendation) at 53 [Dkt. No. 66-9].
He further reasoned that "the jury was on notice that Lopez was
not the most credible of witnesses" because there was evidence
-5-
at trial "that Lopez had lied on more than one occasion to
government agents [.]" Id. at 52. He then concluded that the
falsehoods in Lopez's testimony did not warrant collateral
relief because they either were "not central to the jury's
assessment of defendant's role in the offense, or were unknown
to the government at the time of defendant's trial." Id. at 51.
3. The FOIA Request
In May 2004, Carlos Marino, acting pro se, submitted a FOIA
request to the DEA to obtain "a copy of all documents indexed
under No. 3049901 of the [DEA' s] Narcotics and Dangerous Drug
Information System (NADDIS) ." Letter from Marino to DEA FOIA/PA
Unit, dated May 4, 2004 ("FOIA Request") [Dkt. No. 5-l, Ex. A].
NADDIS numbers are unique multi-digit numbers that the DEA
assigns to the subjects of its investigations. They permit the
DEA to "retrieve [] investigative reports and information" from
its investigative database regarding a subject of interest
without searching by name. See First Supplemental Decl. of
Katherine L. Myrick ("First Supp. Myrick Decl.") ! 6 [Dkt. No.
65-2] . It is undisputed that Carlos Marino suspected that
3049901 was the NADDIS number assigned to Lopez, and therefore,
his request effectively sought the DEA' s investigative file on
Lopez.
-6-
The DEA categorically denied Carlos Marino's request. Its
response took the form of a "Glomar response," in which an
agency states that it "can neither confirm nor deny" the
existence of responsive records on the grounds that to do so
would reveal information exempt from disclosure under FOIA. 2
The DEA reasoned that disclosing even the existence of
responsive documents would invade the privacy interest of the
individual assigned to NADDIS number 304 9901 by revealing that
he or she had been the subject of a DEA investigation. The
agency therefore informed Carlos Marino that it would not
process his request unless he provided either proof of death of
the individual assigned to NADDIS number 3049901, or an original
notarized privacy waiver. See Undated Letter from DEA to Marino
[ Dkt . No. 5-1, Ex. D] .
On August 9, 2004, Carlos Marino filed an administrative
appeal with the Department of Justice's ("DOJ"'s) Office of
Information and Privacy ("OIP"), arguing that "no privacy
interest would be invaded by disclosing the information" he
sought because, as he pointed out in his original request, that
information had already been put into the public domain at his
2
The term "Glomar response" is derived from a case in which a
requester sought records relating to an underwater sea craft
called the "Glomar Explorer." Nation Magazine, Wash. Bureau v.
U.S. Customs Serv., 71 F.3d 885, 888 n.2 (D.C. Cir. 1995)
(citing Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)).
-7-
trial and the trial of Parafan-Homen. Letter from Carlos Marino
to OIP, dated Aug. 9, 2004, at 2 [Dkt. No. 5-1, Ex. E]. On
January 18, 2005, the OIP affirmed the denial of the request,
again stating that to confirm or deny the existence of records
"could reasonably be expected to constitute an unwarranted
invasion of personal privacy" under Exemption 7(C). Letter from
OIP to Carlos Marino, dated Jan. 18, 2005 [Dkt. No. 5-1, Ex. G] . 3
B. Procedural Background
On July 12, 2006, Carlos Marino filed this action seeking
judicial review of the DEA's decision. [Dkt. No. 1]. On
October 5, 2 00 6, the DEA filed its first Motion for Summary
Judgment. [Dkt. No. 5]. On March 16, 2007, Judge Ricardo
Urbina, the District Court Judge previously assigned to this
case, summarily granted the Government's first Motion for
Summary Judgment after Carlos Marino failed to file an
opposition. Carlos Marino then moved for reconsideration on
April 17, 2007 [Dkt. No. 12] and for relief from the judgment on
November 30, 2009 [Dkt. No. 16]. Judge Urbina denied both
motions on August 5, 2010. See Marino v. DEA, 729 F. Supp. 2d
237 (D.D.C. 2010) ("Marino I"). Judge Urbina reasoned that
3
The OIP also determined that the requested records were exempt
from disclosure "pursuant to 5 U.S. C. § 552 (b) ( 2) , which
concerns matters that are related solely to internal agency
practices." [Dkt. No. 5-1, Ex. G]. However, the DEA has not
pursued that exemption in this case.
-8-
granting Carlos Marino relief from the judgment would be futile
because he lacked any meritorious counterargument to the DEA' s
Glomar response. Id. at 243-245.
On appeal, the D.C. Circuit reversed. Marino v. DEA, 685
F.3d 1076 (D.C. Cir. 2012) ("Marino II"). The Court of Appeals
emphasized that the only issue under consideration was the
propriety of the agency's Glomar response, which is "an
exception to the general rule that agencies must acknowledge the
existence of information responsive to a FOIA request and
provide specific, non-conclusory justifications for withholding
that information." Id. at 1078 n.1 (citation and internal
quotation marks omitted).
The Court of Appeals held that Carlos Marino's
identification of public records linking NADDIS number 3049901
to Lopez presented a plausible basis to overcome the DEA's
Glomar response because "[u]nder FOIA' s 'public domain'
exception, an agency may not rely on an 'otherwise valid [FOIA]
exemption to justify withholding information that is already in
the 'public domain.'" Id. at 1080 (citing Students Against
Genocide v. Dep't of State, 257 F.3d 828, 836 (D.C. Cir. 2001)).
The panel emphasized· that, "[e]ven if later in litigation the
DEA showed legitimate grounds to withhold every document in
NADDIS file No. 3049901, Marino has raised a meritorious defense
-9-
that the DEA' s justification for refusing even to confirm the
file's existence has been undermined by prior public
disclosure." Id. at 1082.
On remand and reassignment of the case to this Judge, the
Court granted relief from the prior judgment, denied the DEA' s
Motion for Summary Judgment, directed the DEA to file an Answer
to the Complaint, and set a schedule for limited discovery.
[Dkt. No. 49].
The DEA' s Answer, filed on March 25, 2013, continued to
assert Glomar as its sole substantive defense. [Dkt. No. 53].
However, on May 7, 2013, the Court held a status conference at
which the Government informed the Court for the first time that
it was not certain whether it would continue to pursue this
defense. The parties also informed the Court at this time that
Carlos Marino had recently been released from prison due to
terminal cancer. The Court then set deadlines for the
Government to decide on its Glomar response and for summary
judgment briefing.
Thereafter, the Government continued to equivocate on its
Glomar response before finally deciding, on May 29, 2013, that
it would "no longer assert the Glomar response in this case."
[Dkt. No. 62]. The DEA now concedes that its assignment of
NADDIS number 3049901 to Lopez is a matter of public record, but
-10-
has failed to ever explain why it took seven years and a
successful appeal to the Court of Appeals for Marino to prevail
on this issue. See Def.'s Mot. at 7. 4
After withdrawing its Glomar response, the Government
sought an extension of time to file its summary judgment motion,
which the Court initially granted but later modified at Marino's
request in light of his deteriorating health. The result was
that the Government filed its Renewed Motion for Summary
Judgment on May 31, 2013, just two days after it withdrew its
Glomar response, but did not provide the Court with anything
resembling a conventional Vaughn index. [Dkt. No. 65]. On June
14, 2013, Marino filed his Opposition. [ Dkt. No. 66] . On June
24, 2013, the Government filed its Reply [Dkt. No. 68], and on
June 26, 2013, Marino filed a Sur-reply with permission from the
Court. [ Dkt. No 7 0] .
On July 16, 2013, after summary judgment briefing was
complete but before the Court had ruled on the Motion, Carlos
Marino passed away. See Statement Noting Death of Plaintiff
Carlos Marino [Dkt. No. 72]. On December 5, 2013, the Court
4
Although the DEA acknowledges only one public document linking
Lopez to his NADDIS number, there are at least three such
documents on this Court's public docket. See Pl.'s Opp'n, Ex. A
at 256, 261, 262 (DEA-6 Forms dated Aug. 18, 1997 and Sept. 10,
1997) [Dkt. No. 66-2]; Pl.'s Opp'n Ex. L at 4 (DEA-6 Form dated
Aug. 16, 1997) [Dkt. No. 66-15].
-11-
granted Griselle Marino's Motion to substitute on his behalf.
[ Dkt. Nos. 8 9, 90] . On February 5, 2014, the Court held oral
argument on the DEA's Motion. On February 10, 2014, the
Government filed a Notice of Authority, citing an appellate
brief Carlos Marino had filed in 1998 in his criminal case that
the Government purportedly discussed at oral argument in this
case. [Dkt. No. 93].
II. LEGAL STANDARD UNDER FOIA
The purpose of FOIA is to "pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny." Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C.
Cir. 2007) (quoting Dep't of Air Force v. Rose, 425 U.S. 352,
361 (1976)). FOIA "requires agencies to comply with requests to
make their records available to the public, unless the requested
records fit within one or more of nine categories of exempt
material." Oglesby v. Dep't of Army, 79 F.3d 1172, 1176 (D.C.
Cir. 1996) (citing 5 U.S.C. § 552 (a), (b)). Exemption 7 (C),
which is at issue in this case, permits an agency to withhold
law enforcement records when disclosure "could reasonably be
expected to constitute an unwarranted invasion of personal
privacy." 5 U.S.C. § 552 (b) (7) (C).
-12-
FOIA' s "limited exemptions do not obscure the basic policy
that disclosure, not secrecy, is the dominant objective of the
Act." ACLU v. U.S. Dep't of Justice, 655 F.3d 1, 5 (D.C. Cir.
2011) (citing Nat'l Ass'n of Home Builders v. Norton, 309 F.3d
26, 32 (D.C. Cir. 2002)). "If a document contains exempt
information,. the agency must still release 'any reasonably
segregable portion' after deletion of the nondisclosable
portions." Oglesby, 79 F.3d at 1176 (citing 5 U.S.C. § 552(b)).
"At all times, courts must bear in mind that FOIA mandates a
strong presumption in favor of disclosure, and that the
statutory exemptions, which are exclusive, are to be narrowly
construed." ACLU, 655 F.3d at 5 (internal citations and
punctuation marks omitted).
A district court reviews an agency's decision to withhold
responsive documents de novo. 5 U.S.C. § 552 (a) (4) (B). The
agency bears the burden of demonstrating that it has conducted
an adequate search, and that its decision to withhold any
responsive documents is justified. Petroleum Info. Corp. v.
Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)
(citing 5 U.S.C. § 552 (a) (4) (B)).
"FOIA cases are typically and appropriately decided on
motions for summary judgment." Gold Anti -Trust Action Comm.,
Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d
-13-
123, 130 (D.D.C. 2011) (quoting Defenders of Wildlife v. Border
Patrol, 623 F. Supp. 2d 83, 87 (D. D.C. 2009)). The Court may
grant summary judgment on the basis of information provided in
agency affidavits or declarations, but only if such materials
(1) "describe the documents and the justifications for
nondisclosure with reasonably specific detail"; (2) "demonstrate
that the information withheld logically falls within the claimed
exemption"; and ( 3) show that the agency's explanations for
withholding documents "are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith."
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981).
As in any motion for summary judgment, the Court "must view
the evidence in the light most favorable to the nonmoving party,
draw all reasonable inferences in his [or her] favor, and eschew
making credibility determinations or weighing the evidence."
Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008). If the
Court concludes that there are genuine issues of material fact
as to the sufficiency of the agency's response, summary judgment
must be denied. See Fed. R. Civ. P. 56(a).
III. ANALYSIS
The DEA advances two principal arguments as to why it is
entitled to summary judgment. First, it construes Marino's FOIA
-14-
request narrowly and purports to have fully responded to it by
producing a single document. Second, it maintains that, to the
extent Marino's request seeks documents other than the single
document produced, such documents are exempt from disclosure
under FOIA Exemption 7(C). Marino refutes both of these
arguments and asks the Court to enter summary judgment in her
favor pursuant to Fed. R. Civ. P. 56(f) (l).
A. The Scope of the Request
Determination of the scope of the request is the first
issue to be decided. Our Court of Appeals has emphasized that
"[a] l though a requester must 'reasonably describe' the records
sought, 5 U.S.C. § 552 (a) (3), an agency also has a duty to
construe a FOIA request liberally." Nation Magazine, Wash.
Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)
(citations omitted).
In addition, the DOJ's own internal guidance reiterates
that " [ e] ven if the request 'is not a model of clarity,' an
agency should carefully consider the nature of each request and
give a reasonable interpretation to its terms and overall
content." United States Dep't of Justice, Guide to the Freedom
of Information Act, Procedural Requirements, at 25 (2013)'
available at http://www.justice.gov/oip/foia-guide.html (last
visited February 11, 2014).
-15-
Marino's request stated, in relevant part:
Specifically, I request a copy of all documents
indexed under No. 3049901 of [NADDIS]. I am only
requesting information that is already public
information or was required to be made public in
public trials conducted on December 7-10, 1997, in the
Northern District of Florida styled as United States
v. Marino and in June, 1998, in the Eastern
District of New York styled as United Stated [sic] v.
Pastor Parafan-Homen. If any documents indexed
under NADDIS No. 3049901 or portions thereof are
withheld or redacted because of statutory exemptions,
please forward to me the segregable portion of the
document[.]
FOIA Request [Dkt. No. 5-1, Ex. A] (emphasis added).
The Government focuses on the second sentence of the quoted
language and argues that it limits Marino's request to two
categories of documents: ( 1) documents indexed to NADDIS number
3049901 that were "made public" at the trials of Carlos Marino
and Parafan-Homen, and (2) documents indexed to NADDIS number
3049901 that were "required to be made public" at such trials,
but were not. Def.'s Mot. at 9-12.
According to the Government, the second category is not a
proper subject of a FOIA request because "it is a question
disguised as a request for documents: to answer it, one would
need to be totally familiar with the facts of the trials, the
nature of the documents that DEA has concerning Lopez, and .
the government's disclosure obligations[.]" Id. at 12.
Therefore, the Government concludes that the request only
-16-
properly seeks documents actually introduced at the two trials
because a "fundamental axiom of FOIA law is that agencies are
not required to answer questions posed as FOIA requests." Id.
at 11-12 ( citing Zeman s k y v . EPA, 7 67 F . 2d 569, 57 4 ( 9th Ci r .
1985); DiViaio v. Kelly, 571 F.2d 538, 542-43 (lOth Cir. 1978);
Amnesty Int'l v. CIA, No. 07-5435, 2008 WL 2519908, at *12-13
(S.D.N.Y. June 19, 2008)).
Marino rejects the DEA's narrow reading and argues that the
request seeks "all documents indexed under [NADDIS] number
3049901," whether introduced at the trials or not. Pl.'s Opp' n
at 24-26 (emphasis added). Marino also argues that, after seven
years of litigation in which the DEA has never once questioned
the meaning of his request, the DEA has forfeited any objection
that it is ambiguous or improper. Id. at 16-23.
For the following reasons, the Court concludes that Carlos
Marino's request is "reasonably susceptible" to the
interpretation urged by Marino, LaCedra v. Exec. Office for U.S.
Att'ys, 317 F.3d 345, 348 (D.C. Cir. 2003), and therefore, it
need not reach Marino's alternative contention that the
Government has forfeited this argument.
As a preliminary matter, the first sentence of the request
"[s] pecifically" asked for "all documents" indexed under NADDIS
#3049901. FOIA Request [ Dkt. No. 5-l, Ex. A] (emphasis added) .
-17-
Likewise, the third sentence of the request asked that if the
DEA withheld "any documents indexed under NADDIS No. 3049901,"
it send Marino any segregable portion of such documents. Id.(emphasis added) . This expansive language is fully consistent
with Marino's interpretation and inconsistent with the narrow
reading urged by the Government. As our Court of Appeals has
observed:
The drafter of a FOIA request might reasonably seek
all of a certain set of documents while nonetheless
evincing a heightened interest in a specific subset
thereof. We think it improbable, however, that a
person who wanted only the subset would draft a
request that . . first asks for the full set.
LaCedra, 317 F.3d at 348.
The broad language in the first sentence of Marino's
request can be reconciled with the limiting language in the
second because the two sentences appear to have different
purposes. Whereas the first defines the scope of the request,
the second explains why (in Marino's view) such documents are
not exempt. In fact, the second sentence closely tracks the two
theories Carlos Marino repeatedly presented to this Court as to
why Exemption 7 (C) does not apply to the documents in Lopez's
file: first, that the events underlying the requested records
have already been publicly disclosed; and second, that the
Government's obligation to disclose Lopez's false testimony at
-18-
his criminal trial established a public interest in the
requested records sufficient to counterbalance Lopez's privacy
6
interest in withholding them.
This reading of Marino's request is also consistent with
the structure of arguments presented by Marino during his
administrative appeal, in which he again described his request
broadly at the outset as one "for records indexed under NADDIS
#3049~01[.]" Letter from Marino to OIP dated Aug. 9, 2004 [Dkt.
No. 5-1, Ex. E]. He then challenged the DEA' s denial of his
request by quoting from the DOJ' s own FOIA Reference Guide for
the proposition that:
information about a living person can be released
without that person's consent 'when no privacy
interest would be invaded by disclosing the
information, when the information is already public or
required to be made public or where there is such a
strong public interest in the disclosure that it
overrides the individuals' privacy interest.'
Id. (emphasis added) (citing U.S. Dep't of Justice, Freedom of
Information Act Reference Guide, at 4 (November 2003)). Marino
explained that his original request specifically set forth these
bases for release of the requested documents. Id.Finally, the Government itself appears to have read the
second sentence of Marino's request primarily as an effort to
6
The second theory is explained in more detail infra at III.B.2.
-19-
overcome Exemption 7(C) rather than a genuine limitation on the
scope of the request. For example, in its original Motion for
Summary Judgment, the DEA described the second sentence as an
attempt "to end-run the 7(C) exemption." Def.'s [Original] Mot.
for Summary Judgment at 9 [Dkt. No. 5]. Later, in its appellate
brief to the D.C. Circuit, the DEA argued that even if it did
publicly disclose an individual's NADDIS number, that fact
"would still not require DEA to reveal all of the information in
such an individual's files [, ] " indicating that the agency, in
fact, understood Marino to be seeking all such files. Pl.'s
Opp'n Ex. I (DEA's App. Br. to D.C. Cir.) at 11-12 (emphasis
added) [Dkt. No. 66-12].
For all the foregoing reasons, the second sentence of
Marino's request is reasonably read as neither a limitation on
the scope of the request nor a request for the Government to
answer a question, but as an explanation of why, in Marino's
view, the requested documents are not exempt from disclosure.
By contrast, the first sentence does define the scope of the
request, and clearly and specifically seeks all documents
indexed to NADDIS number 3049901. Accordingly, the Court shall
-20-
construe Marino's request as one for all documents indexed to
NADDIS number 3049901. 7
B. The Government Is Not Entitled to Summary Judgment
Under Exemption 7(C)
The Government also argues that even if Marino's request is
construed broadly, the agency is still entitled to summary
judgment because Exemption 7 (C) justifies its categorical
withholding of the requested documents. To prevail on this
argument, the DEA must make two independent showings. First, it
must persuade the Court that it has made a "good faith effort to
conduct a search for the requested records, using methods which
can be reasonably expected to produce the information
requested." Oglesby, 920 F.2d at 68. Second, it must show that
the withheld documents fall "within a FOIA statutory exemption,"
here, Exemption 7(C). Leadership Conf. on Civil Rights v.
Gonzalez, 404 F. Supp. 2d 246, 252 (D.D.C. 2005).
7
The DEA also argues that a "requester who fails to submit a
proper FOIA request has not exhausted his administrative
remedies and an agency is under no obligation to
respond [.]" Reply at 7 (citing Lewis v. Dep' t of Justice, 7 33
F. Supp. 2d 97, 107 (D.D.C. 2010)). However, the DEA did
respond to Marino's request, and never once suggested it did not
understand the meaning of the request. Nor has it explained how
its seven-year long Glomar stance would have differed under the
interpretation Marino advances. Therefore, the Court is
satisfied that Marino properly exhausted his administrative
remedies.
-21-
1. The DEA Has Not Established that It Conducted an
Adequate Search
"To merit summary judgment on the adequacy of a search, an
agency must demonstrate beyond material doubt that its search
was reasonably calculated to uncover all relevant documents."
Students Against Genocide, 257 F.3d at 838 (citing Nation
Magazine, 71 F.3d at 890). "In general, the adequacy of a
search is 'determined not by the fruits of the search, but by
the appropriateness of [its] methods.'" Hodge v. FBI, 703 F.3d
575, 579 (D.C. Cir. 2013) (citation omitted). "The agency must
make a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to
produce the information requested." Students Against Genocide,
257 F.3d at 838.
The DEA has submitted declarations from Assistant United
States Attorney Fred E. Haynes ("Haynes"), the attorney
principally responsible for defending this case, and its FOIA
Chief, Katherine L. Myrick ("Myrick"), describing the extent of
the agency's search.
Haynes attests to obtaining the DOJ's retired case files in
the criminal prosecutions of Marino and Parafan-Homen and
reviewing them for all "documents of significance" that are
"open to the public" and relate to Lopez or NADDIS number
-22-
3049901. See Haynes Decl. CJf 10 [ Dkt. No. 65-1] ; Response to
Pl.'s First Set of Reqs. for Prod. of Docs. Nos. 1, 3, 4. This
search was undertaken during the discovery process in this case,
which was focused solely on publicly-disclosed documents linking
Lopez with NADDIS number 3049901. It did not extend to all DEA
records indexed to NADDIS number 304 9901 and, consequently, it
was not "reasonably calculated to uncover all" responsive
documents. Students Against Genocide, 257 F.3d at 838. 8
Myrick's declaration also falls short. She informs us that
the DEA' s law enforcement records are "reasonably likely to be
found in DEA' s Investigative Reporting and Filing System
(IRFS)." First Supp. Myrick Decl. CJ[ 6. However, she did not
search IRFS for any records because, as she explained, IRFS "is
not indexed, as plaintiff's FOIA request sought, by a court's
case name, by a court's case file number, by information that is
public information, or by information that was required to be
made public in public trials." Id. CJ[ 7. This explanation is
totally unconvincing in light of the Court's ruling that Marino
seeks all documents indexed to NADDIS number 3049901, and not
8
At oral argument, counsel for the Government stated for the
first time that he had searched all DEA records for documents
indexed to NADDIS number 304 9901, but he offered virtually no
detail as to the methods he employed or the results of his
search. See Tr. at 7:16.
-23-
simply those that were made public or required to be made public
at the two trials. Accordingly, the DEA shall be directed to
search IRFS for all such records.
2. Marino Has Demonstrated a Significant Public
Interest in the Documents Under Exemption 7(C)
The DEA also contends that it should not be required to
identify responsive records because the records Marino seeks are
presumptively privileged under Exemption 7(C).
As already noted, Exemption 7 (C) protects law enforcement
records for which disclosure "could reasonably be expected to
constitute an unwarranted invasion of personal privacy." 5
U.S.C. § 552 (b) (7) (C). The Supreme Court has held that once the
Government has shown that the privacy concerns addressed by
Exemption 7 (C) are present, the burden shifts to the requester
to demonstrate that the "public interest sought to be advanced
is a significant one, an interest more specific than having the
information for its own sake." Nat' 1 Archives & Records Admin.
v. Favish, 541 U.S. 157, 172 (2004). To satisfy this burden
where, as here, "the public interest being asserted is to show
that responsible officials acted negligently or otherwise
improperly in the performance of their duties, the
requester must produce evidence that would warrant a belief by a
-24-
reasonable person that the alleged Government impropriety might
have occurred." Id. at 174.
If the requestor meets this burden, the court must, in the
final analysis, "balance the public interest in disclosure
against the [privacy] interest Congress intended the Exemption
to protect'" in order to determine whether the Exemption
applies. ACLU, 655 F.3d at 6 (citing U.S. Dep't of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776
(1989)).
The DEA contends that it is entitled to summary judgment
without any balancing analysis because Marino has not pointed to
facts that would warrant a reasonable belief that Government
misconduct "might have occurred." 9 The Court disagrees. Marino
has presented evidence indicating that the Government "might"
have been negligent in failing to know that its key witness was
lying to the jury and seriously understating his involvement in
the Parafan-Homen conspiracy.
9
At oral argument, the Government misstated the standard
governing Marino's evidentiary burden. While the Government
agreed that Favish is the controlling case, it contended Marino
was required to present "compelling evidence" of Government
misconduct to trigger a balancing under Exemption 7(C). Tr. at
20:3-5. The "compelling evidence" standard does not appear
anywhere in the Favish decision and appears only in D.C. Circuit
case law significantly predating Favish.
-25-
First, between August and November 1997, Lopez gave a
series of interviews to DEA agents in which he told them, inter
alia, that he had met personally with Parafan-Homen and other
high level participants in Columbia on more than one occasion.
See DEA Notes dated October 27, 1997 [Dkt. No. 66-2 at 178-185].
The Government also knew, through its years-long investigation
of the Parafan-Homen organization, that several other co-
conspirators had attempted to meet with Parafan-Homen in
Columbia but were never allowed to physically see him. Pl.'s
Opp'n Ex. D (Gov't's App. Br. in United States v. Parafan-Homen)
at 12 [Dkt. No. 66-7]. 10 The fact that Lopez was able to meet
face-to-face with the conspiracy's leader on more than one
occasion while others were not reasonably suggests Lopez was
part of Parafan-Homen's inner circle and should have led
Government officials to suspect his involvement in the
conspiracy was more extensive than he depicted at Ma~ino's
trial.
Second, despite its discovery obligations under Brady v.
Maryland, 373 U.S. 83 (1963), the Government did not disclose
10
By the time Marino and Lopez were arrested in August 1997, the
DEA had been investigating the Parafan-Homen conspiracy for at
least four years and several of its key members had already been
arrested and extradited to the United States, including Parafan-
Homen himself. See Pl.'s Opp'n Ex. D at 8 (Gov't's App. Br. in
United States v. Parafan-Homen) [Dkt. No. 66-7].
-26-
the notes from its interviews with Lopez to Carlos Marino until
he filed his § 2255 Motion. See Pl.'s Opp' n Ex. E (Gov' t' s
Resp. to Marino's § 2255 Pet.) at 7-8 [Dkt. No. 66-8 at ECF pp.
8-9] . Instead, the prosecutor inaccurately stated at his trial
that the DEA agents had not taken notes during their interviews
with Lopez. See Pl.'s Opp' n Ex. A (Joint Appendix) at 114-15,
223 [Dkt. No. 66-2].
Third, Marino has submitted a list of NADDIS numbers
associated with the Parafan-Homen conspiracy indicating that
Carlos Marino was the last of fifty-eight investigative subjects
to enter the DEA' s database. See Pl.'s Opp' n, Ex. A (List of
Persons Associated with the Company in Numerical Sequence in
Which They Were Entered into the NADDIS Databanks) [Dkt. No. 66-
4 at 124]. In fact, it appears he did not enter the DEA' s
database until Lopez's arrest in August 1997, indicating the
Government was not aware of his existence until that point.
When he did finally enter the database, his NADDIS number was
4210827. By contrast, Lopez's NADDIS number, 3049901, which is
more than one million numbers lower than Marino's and the
twenty-second entry on the list, suggests he was on the DEA' s
radar long before his arrest. These circumstances might have
alerted prosecutors that Lopez's role was more extensive than he
-27-
represented, and prompted them to cross-check his statements
against the accounts of other cooperators. 11
Thus, although the Government had been investigating the
Parafan-Homen organization for years, and although DEA agents
were in possession of information suggesting Lopez's involvement
was more extensive than he led them to believe, the Government
produced only a single Form DEA-6 to Marino prior to trial, did
not alert Marino to many of the inconsistencies between Lopez's
trial testimony and his debriefing statements, and relied
heavily on Lopez's testimony to argue that Marino should receive
a sentencing enhancement based on his purportedly managerial
role in the enterprise. See Pl.'s Opp' n, Ex. B (sentencing
transcript) at 6-10 [Dkt. No. 66-5 at ECF nos. 24-28]. These
circumstances satisfy Marino's evidentiary burden to show that
the Government "might" have fallen below an acceptable standard
of care to ensure the integrity of the proceedings.
Finally, the Court rejects the Government's suggestion that
Lopez's perjury was unimportant because it "was totally
unrelated to the evidence against Mr. Marino." Tr. at 7:4-5.
Lopez's testimony was absolutely critical to any finding that
11
At least two other co-conspirators, William Quintero and
Andres Meneses, were cooperating with the Government and had
been debriefed multiple times before Marino's trial in December
1997. Id. at 9, 13. There is no indication that Lopez's
account was corroborated by their accounts.
-28-
Carlos Marino worked for the Parafan-Homen organization and his
believability was a central component of the Government's case.
Even if his falsehoods related more to his own criminal
activities than Marino's, his readiness to lie under oath
seriously impacted his credibility. The Government's failure to
investigate and disclose evidence indicating that he was lying
potentially deprived the jury of a full opportunity to assess
his trustworthiness as a witness. See Tr. at 6:12-13.
Moreover, credibility aside, unlike in Marino's § 2255
proceeding, the focus in this case is not solely whether the
Government's conduct prejudiced Marino, but whether the public
would want to know about it. It serves the public interest in
fair and carefully investigated criminal trials to know that the
Government built its case on an unreliable witness and ignored
red flags that he was underplaying his role in the conspiracy -
and potentially exaggerating Marino's - in order to win leniency
from the Court and the Government. See ACLU, 655 F. 31d at 14
("matters of substantive law enforcement are properly the
subject of public concern") (citation omitted).
In sum, even if the Government did not definitively know
that Lopez was perjuring himself at Marino's trial, its failure
to investigate and learn all of the facts about its key witness,
and to disclose all exculpatory evidence to Carlos Marino,
-29-
reasonably suggest that it "might" have acted negligently or
otherwise improperly during Marino's prosecution. This low
threshold of proof is all that is required, at this juncture, to
survive summary judgment. Favish, 541 U.S. at 174. 12
3. The DEA Does Not Identify Any Basis for
Categorical Withholding
Third and finally, the DEA argues that even if Marino has
made an evidentiary showing sufficient to trigger Exemption
7(C)'s balancing test under other circumstances, no balancing is
required because the documents in Lopez' file are categorically
exempt.
Our Circuit has acknowledged that FOIA does not necessarily
require a court to "evaluate the revelatory characteristics of
every individual document in each case [.]" Lopez v. Dep' t of
Justice, 393 F.3d 1345, 1349 (D.C. Cir. 2005). Instead, "rules
12
The Government cites Martin v. Dep't of Justice, 488 F.3d 446(D.C. Cir. 2007) for the proposition that Marino is collaterally
estopped from arguing that the Government committed misconduct
in his criminal case. In Martin, our Court of Appeals held that
a FOIA requester who, in an earlier § 2255 proceeding,
unsuccessfully argued that the Government committed misconduct
at his trial, was collaterally estopped from making the same
argument in a FOIA case. However, in Martin, the Magistrate
Judge who denied relief under § 2255 first reviewed, in camera,
the same documents the requester later sought in his FOIA case.
In this case, nobody (other than the Government) has reviewed
the requested documents to determine whether they reveal
Government misconduct. Therefore, unlike in Martin, the factual
matters presented by this FOIA case are different from those
underlying Carlos Marino's § 2255 proceeding.
-30-
exempting certain categories of records from disclosure," are
appropriate "when the range of circumstances included in [the]
category 'characteristically supports an inference' that the
statutory requirements for exemption are satisfied" so long as a
request falls within the category. Nation Magazine, 71 F.3d at893 (citing United States v. Landano, 508 U.S. 165, 176-80
(1993)). At the same time, the Court of Appeals has cautioned
that, "[b]ecause the myriad considerations involved in the
Exemption 7 (C) balance defy rigid compartmentalization, per se
rules of nondisclosure based upon the type of document
requested, the type of individual involved, or the type of
activity inquired into, are generally disfavored." Stern v.
FBI, 737 F.2d 84, 91 (D.C. Cir. 1984) (citation omitted).
The DEA has not come close to showing that categorical
withholding is appropriate in this case. As a preliminary
matter, it has not, as discussed supra, demonstrated that it
conducted an adequate search for responsive records. In the
absence of such a search, the Court is certainly not about to
take it on faith that all responsive records, in their entirety,
implicate Lopez's privacy interests, especially given that
Lopez's identification with a DEA investigation is now a matter
of public record. See Davis v. U.S. Dep't of Justice, 968 F.2d
1276, 1282 n.4 (D.C. Cir. 1992) ("If the only basis for
-31-
nondisclosure is an individual's interest in remaining
anonymous, and an excerpt revealing his identity is disclosed,
there may no longer be any justification for continuing to
withhold [the requested record].").
Even if the DEA had conducted an adequate search, the DEA's
categorical withholding is inappropriate because circumstances
exist that do not "characteristically support" the inference
that Exemption 7(C)'s statutory requirements are satisfied.
First, to the extent the records detail Lopez's own
criminal activities, any privacy interest in such information is
likely to have been greatly diminished by his public testimony
on the same issues and voluntary participation in at least four
public criminal proceedings. 13 See, e.g., Kimberlin v. Dep't of
Justice, 139 F.3d 944, 949 (D.C. Cir. 1998) (privacy interest of
individual "undoubtedly" diminished where "the public already
knows who he is, what he was accused of, and that he received a
relatively mild sanction") . Naturally, it is difficult for the
13
In addition to testifying against Carlos Marino and Parafan-
Homen, Lopez testified at the separate trials of Gustavo Pedraza
and Conrado Luis Lopez in the Northern District of Florida in
1999. See Pl.'s Opp'n Ex. E (Gov't's Resp. to Marino's § 2255
Pet.) at 9 [Dkt. No. 66-8 at ECF p. 10]. Lopez was also
publicly charged with, and pleaded guilty to, one count of
conspiracy, for which he was sentenced to 42 months of
imprisonment. See United States v. Lopez, No. 97-cr-084-RV
(N.D. Fla. June 26, 1998) [Dkt. No. 124-2].
-32-
Court to assess the full extent of Lopez's privacy interest
without knowing anything about the type of records at issue.
Second, as discussed above, Marino has adduced evidence
that DEA agents and prosecuting attorneys acted either
negligently in failing to cross-check Lopez's story against the
Government's broader investigation of Parafan-Homen's
organization, or improperly by presenting his testimony despite
knowing it was false. Marino has also presented evidence that
the Government acted improperly by suppressing or failing to
learn of discoverable and potentially exculpatory material. The
American public has a strong public interest in knowing if a
defendant serving a long sentence (in this case, 30 years) for
the serious crime of conspiracy to import cocaine has been
wrongfully convicted on the basis of perjured testimony that the
Government might well have been able prevent through its own
investigation, compliance with its Brady obligations, or both.
Third, while it is both reasonable and consistent with
this Circuit's case law to assume that some portion of the
responsive records may implicate the privacy interests of Lopez
and others who may be mentioned in them, see, e.g., Davis, 968
F.2d at 1281 (persons involved in law enforcement investigations
"have a substantial interest in seeing that their participation
remains secret"), this does not supply a basis to withhold the
-33-
records in their entirety. The DEA puts forth no reason why
redactions or selective withholding will not suffice to protect
any existing privacy interests. See Nation Magazine, 71 F.3d at
896 (holding that an agency is not permitted "to exempt from
disclosure all of the material in an investigatory record solely
on the grounds that the record includes some information which
identifies a private citizen") (emphasis in original) . 14
In sum, given the centrality of Lopez's testimony at
Marino's trial and sentencing, Lopez's subsequent admission to
perjuring himself on various occasions, and the existence of
evidence indicating that the Government was, at a minimum,
negligent in failing to be aware that Lopez was not telling the
truth, Marino has plausibly demonstrated that Exemption 7 (C)
"might" not apply to at least some of the responsive documents.
For all of these reasons, the Government's assertion of a
categorical exemption is rejected, and the Government's Renewed
Motion for Summary Judgment shall be denied.
However, without knowing more about the records at issue,
and the interests they implicate, the Court cannot make a
determination that the public interest in disclosure outweighs
14
At oral argument, the Government conceded that redactions
would likely suffice to protect the privacy interests of any
individuals other than Lopez who might be mentioned in the
documents. Tr. at 8:4-7.
-34-
the privacy interests at stake. Consequently, Marino's request
for summary judgment in her favor pursuant to Fed. R. Ci v. P.
56(f) shall also be denied.
C. The Government Must File a Vaughn Index
After seven years of litigation, the Government still has
not yet submitted a Vaughn index. Instead, it continues to
assert that it need not do so because information "regarding the
existence or non-existence of law enforcement investigative
records concerning a third party is reasonably likely to
infringe on the third party's privacy." First Supp. Myrick
Decl. 473 F.3d 370, 380
(D.C. Cir. 2007)); see also ACLU v. CIA, 710 F.3d 422, 432 (D.C.
Cir. 2013) ("With the failure of [a] . Glomar response, the
case must proceed to the filing of a Vaughn index or
other description of the kind of documents the Agency possesses,
followed by litigation regarding whether the exemptions apply to
-35-
those documents.") (citing Vaughn v. Rosen, 484 F.2d 820 (D.C.
Cir. 1973)).
After the DEA searches its records ~n compliance with this
Memorandum Opinion and Order, it shall prepare a Vaughn index,
or other reasonably detailed description of the responsive
records and the reasons for withholding them that will permit
the Court to assess any exemptions claimed. The DEA will then
be "entitled to make individualized arguments as to why
particular documents [or portions thereof] might be
appropriately withheld," and Marino will be entitled to rebut
those arguments. Citizens for Responsibility and Ethics in
Washington v. U.S. Dep't of Justice, No. 11-754 (GK), 2013 WL
2549680, at *10 (D.D.C. June 12, 2013).
IV. CONCLUSION
For the foregoing reasons, the DEA' s Renewed Motion for
Summary Judgment will be denied, and Marino's request for
summary judgment in her favor under Rule 56 (f) shall also be
denied. An Order shall accompany this Memorandum Opinion.
February 19, 2014 GladySKeSief
United States District Judge
Copies to: attorneys on record via ECF
-36-