McRae v. U.S. Dep't of Justice

869 F.Supp.2d 151

Andre L. McRAE, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 09–2052 (RJL).

United States District Court, District of Columbia.

June 27, 2012.

Andre L. McRae, Tucson, AZ, pro se.

Benjamin Cory Schwartz, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

This matter is before the Court on Defendants' Motion for Summary Judgment [Dkt. # 12] and Defendants' Supplemental Motion for Summary Judgment [Dkt. # 27].¹ For the reasons discussed below, the former is GRANTED in part and DENIED in part, and the latter is GRANTED.

I. BACKGROUND

Pursuant to the Freedom of Information Act (“FOIA”), see5 U.S.C. § 552, plaintiff submitted requests for information to two components of the United States Department of Justice (“DOJ”): the Executive Office for the United States Attorneys (“EOUSA”) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). Compl. ¶ 1 [Dkt. # 1]. In relevant part, the plaintiff requested:

1. Any and all investigative reports on file with ATF in refere[n]ce to docket number 3:04 CR 157.

2. Any and all agent field note[s] on file in reference to docket number 3:04 CR 157.

3. Any and all wire-tap recordings and transcripts in reference to docket number 3:04 CR 157.

4. The April 16, 2004, government 302, drug transaction report and agent field notes generated by Detective Ortiz of the Charlotte–Mecklenburg Police Dipartment [sic], in reference to docket number 3:04 CR 157.

Ex. 1 to Compl. at 2. Plaintiff also requested a waiver of fees associated with the search for and copying of any responsive records. Id. at 1.

A. Request to the EOUSA (No. 08–3671)

The EOUSA acknowledged receipt of plaintiff's request (No. 08–3671), notified plaintiff that “[s]ome of the information you requested originate[d] with another federal agency,” the ATF, and instructed plaintiff to contact ATF directly. See Ex. 2 to Compl. at 1. The EOUSA also informed plaintiff that it would “continu[e] to process those portions of your request which pertain[ed] to records in the possession of the EOUSA.” Id.

At the time plaintiff filed his complaint, he had received no records from the EOUSA. Compl. ¶ 20. Subsequently, the EOUSA released seventeen pages in full, released one page in part, and withheld no records in full, having redacted certain information under Exemption 7(C). Ex. (Letter to plaintiff from W.G. Stewart II dated Apr. 27, 2010) to Pl.'s Mot. for Summ. J. at 1. Plaintiff clearly was dissatisfied with this response, and asserted that “[t]he government has failed to provide justification for nondisclosure.” Pl.'s Mot. for Summ. J. at 3. Plaintiff described the requested records as “trial props” which had been introduced as evidence in his criminal case, and he asserted that they could be “found in the government's case file, in the care and custody of the United States Attorne's [sic] Office ... [for] the Western District of North Carolina, Charlotte Division.” Id.

B. Requests to the ATF

1. Request No. 09–0196

The ATF acknowledged receipt of plaintiff's FOIA request (Request No. 09–0196) by letter dated November 20, 2008. Decl. of Marilyn R. LaBrie (“LaBrie Decl.”) [Dkt. # 12–1], Attach. to Mem. of P. & A. in Supp. of Defs.' Mot. for Summ. J. (“Defs.' Mem.”), ¶ 4. In addition, the ATF denied plaintiff's request for a fee waiver and advised him of his right to appeal this determination to the DOJ's Office of Information Policy (“OIP”).²Id.; see Ex. B to LaBrie Decl.

2. Request No. 09–0246

Apparently acting on the EOUSA's suggestion, plaintiff submitted a FOIA request directly to the ATF. LaBrie Decl. ¶ 6; see Exs. D & E to LaBrie Decl. The ATF assigned this request a new tracking number, No. 09–0246. Ex. F to LaBrie Decl. Before processing the request, the ATF asked plaintiff to “clarify his secondary identifiers, i.e., other social security numbers that he used,” and to confirm his “agreement to pay for any costs associated with the processing of his request.” LaBrie Decl. ¶ 8; see Ex. F to LaBrie Decl. Plaintiff responded and expressed his understanding that he was entitled to two hours of search time and 100 pages of records at no cost. LaBrie Decl. ¶ 9; Ex. G to LaBrie Decl.

3. Request Nos. 09–0304, 09–523, and 09–0756

Plaintiff sent a second letter which asked the ATF to devote its time to a search for ATF “Special Agent Terrell Tadeo (ATF, Charlotte, N.C.) final investigatory notes regarding Count 1, Conspiracy to possess 50 grams or more and 5 kilos of cocaine[,] and the actual police report, and wire recording/transcript of the April 16th 2004, drug transaction involving Detective Rolando Ortiz, of the Charlotte–Mecklenburg Police Dept., and any other notes regarding this transaction which is Count 2 on the indictment.” Ex. H to LaBrie Decl. at 1 (emphasis removed). The ATF initially denied plaintiff's FOIA request (No. 09–0304) in full pursuant to Exemption 7(A). LaBrie Decl. ¶ 13. “[T]he field office ... advised that the case ha[d] not been closed,” and that “release of this information could reasonably be expected to interfere with enforcement proceedings.” Ex. K to LaBrie Decl.

Plaintiff sent a written response to the ATF. LaBrie Decl. ¶ 14. He explained that his criminal “case ha[d] been closed since December 11, 2007, the day of [his] sentencing,” and argued that, “when a case goes into the appellate stages, ... the release of information pertaining to that case can not alter or change the results of the jurors['] verdicts.” Ex. L to LaBrie Decl. at 1. Apparently the ATF assigned this matter yet another tracking number, No. 09–523, upon receipt of plaintiff's correspondence. See Ex. N to LaBrie Decl.

Plaintiff challenged the decision to withhold records under Exemption 7(A) by pursuing an appeal (No. 09–0989) to the OIP. LaBrie Decl. ¶ 15; see Ex. M to LaBrie Decl. While the appeal was pending, the ATF granted in part plaintiff's request No. 09–0304, presumably on reconsideration of the applicability of Exemption 7(A). LaBrie Decl. ¶ 18. On March 18, 2009, the ATF released 155 pages of records after having redacted certain information under Exemptions 2, 3, and 7(C), and withheld four documents (eight pages) of records in full under Exemption 7(C). Defs.' Mem. at 4–5; LaBrie Decl. ¶ 18; see Ex. P to LaBrie Decl. at 2. In light of these releases, the OIP informed plaintiff that he could appeal any future determination made by the ATF. Ex. Q to LaBrie Decl.

Plaintiff's next correspondence to the ATF explained that the records he received did not contain the information he sought.³See generally Ex. R to LaBrie Decl. He asked to “resubmit [his] F.O.I.A. request” in order to “obtain specific information/documents from Agent Terrell Tadeo.” Ex. R to LaBrie Decl. at 4. The ATF assigned this re-submitted request a separate tracking number (No. 09–0756). See Ex. U to LaBrie Decl. Further “review of all of the documents for litigation” led the ATF to identify and release eight pages of records “which were withheld in full, but which contained further segregable information.” LaBrie Decl. ¶ 25; Ex. W to LaBrie Decl.⁴

C. Plaintiff's Criminal History

In order to place certain of plaintiff's arguments in context, it is useful to review his criminal history:

Following his Spring 2004 guilty plea to federal charges unrelated to this case, McRae's best friend, Damon Chamberlain (Chamberlain), began cooperating with ATF Special Agent Terrell Tadeo (Agent Tadeo), who was investigating drug and firearm activity in the Charlotte, North Carolina area. Through information provided by Chamberlain, Agent Tadeo learned that McRae regularly carried a .40 caliber firearm and sold both cocaine and cocaine base (crack).

On April 15, 2004, Chamberlain placed a recorded call to McRae to set up a drug deal with an undercover police officer, Detective Rolando Ortiz (Ortiz), from the Charlotte–Mecklenburg Police Department (CMPD). In the call, McRae discussed selling marijuana and cocaine and a debt McRae owed to a drug source from the Dominican Republic.

On April 16, 2004, Ortiz contacted McRae and arranged to purchase an ounce of crack later that day at a Bi–Lo grocery store (Bi–Lo) parking lot. Prior to the sale, Agent Tadeo and CMPD officers set up a surveillance of the parking lot. Ortiz and Chamberlain arrived at the Bi–Lo parking lot in Ortiz's unmarked vehicle. McRae entered Ortiz's vehicle and sold an ounce of crack to Ortiz.

Instead of arresting McRae at that time, Agent Tadeo decided to try to arrange a drug deal involving a larger amount of drugs. His attempt to arrange a larger drug deal failed, so Agent Tadeo decided to see if Chamberlain could arrange a deal involving the sale of a firearm.

On May 17, 2004, Chamberlain placed a recorded call to McRae. In the call, Chamberlain asked McRae to get him a “three pound” or .357 magnum firearm. McRae agreed to do so and proposed meeting nearby at “Shauna's house” within an hour.

At this point, Agent Tadeo gathered some CMPD street unit officers with the intention of directing these officers to stop McRae en route to Shauna's house. Agent Tadeo decided not to stop McRae himself because he did not want McRae to know that a federal investigation of his drug activities was underway. Agent Tadeo told the CMPD officers that: (1) McRae was a convicted felon; (2) he had monitored that day a conversation between McRae and Chamberlain wherein McRae agreed to furnish Chamberlain a .357 magnum firearm; (3) McRae regularly carried a .40 caliber firearm; and (4) there may be drugs in McRae's vehicle, as McRae sold crack to an undercover officer on April 16.

Two CMPD officers present at the meeting stopped McRae on his way to Shauna's house. During a search of McRae's vehicle, the officers recovered a .357 magnum firearm, a .40 caliber firearm, and a quantity of crack in excess of five grams. Marijuana was found on McRae's person....

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