CARLIE CHRISTENSEN, Acting United States Attorney (Utah Bar No. 0633) J ARED C. BENNETT, Assistant United States Attorney (Utah Bar No. 9097) J OHN R. TYLER, Assistant Director, Federal Programs Branch KATHRYN L. WYER (Utah Bar No. 9846) ADAM C. SIPLE kathryn.wyer@usdoj.gov United States Department of J ustice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20530 Tel: (202) 616-8475 Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION
J ESSE C. TRENTADUE,
Plaintiff,
vs.
UNITED STATES CENTRAL INTELLIGENCE AGENCY, FEDERAL BUREAU OF INVESTIGATION, and FEDERAL BUREAU OF INVESTIGATIONS OKLAHOMA CITY FIELD OFFICE,
Defendants.
DEFENDANTS MOTION FOR JUDGMENT PURSUANT TO FED. R. CIV. P. 52(c)
Case No: 2:08-CV-788 CW-DBP
Judge Clark Waddoups
Defendants the Federal Bureau of Investigation (FBI) and FBIs Oklahoma City Field Office (collectively, Defendant or the FBI) hereby respectfully move the Court for judgment on partial findings pursuant to Fed. R. Civ. P. 52(c). Under the standard that applies to a Rule 52(c) motion at a bench trial, the Court as the trier of fact need not consider the evidence in the light most favorable to Plaintiff but may weigh the evidence presented at trial. Nieto v. Kapoor, Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 1 of 7 2 268 F.3d 1208, 1217 (10th Cir. 2001). The FBI is entitled to judgment here because Plaintiff has put forward no credible evidence of any other location or search method likely to yield additional tapes or documents that match the parameters of Plaintiffs request under the Freedom of Information Act (FOIA), 5 U.S.C. 552. Plaintiff bears the burden to make that showing. See Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (once the agency has fulfilled its burden under FOIA of conducting reasonably calculated searches, . . . . the burden is on [plaintiff] to identify specific additional places the agency should now search). His failure to do so therefore dooms his claim and entitles the FBI to judgment as a matter of law. There can be no serious dispute that the FBI searched the locations likely to contain the requested material. Plaintiffs FOIA request sought certain videotapes collected during the 1995 Oklahoma City bombing investigation, as well as documents referencing the collection of those videotapes. The evidence demonstrates that FBI employees searched the OKBOMB Warehouse which is the designated repository for all OKBOMB-related material using a number of different methods. The FBIs witness Linda Vernon described the methods she used, which included searching an evidence database that lists all videotapes that were collected, as well as the ZyIndex and Collected Items, which is the part of the FBIs Automated Case Support system that tracks evidence, including its location and chain of custody. Another FBI witness, Diane Lang, an evidence technician at the Oklahoma City Field Office, also searched Collected Items and personally reviewed every videotape whose contents could not be clearly identified through other means. These witnesses have explained why they believe these searches were the best way to find the tapes and records that Plaintiff requested. The eight FBI employees who testified have also explained that everything they know, as people who work directly with the FBI records systems in question, tells them that there is no other search likely to turn up any more material. Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 2 of 7 3 Plaintiffs response to this testimony has amounted to nothing but rank speculation, grasping at straws, and word games. Plaintiff has attempted to construct an elaborate scheme involving hidden black-site record repositories, so-called restricted files, secret computer drives, and rumors recorded in FBI interview reports. But he has provided no concrete or direct evidence to support any of his wild theories. Nor do any of his theories suggest an actual location that could be searched, other than some unknown place where, Plaintiff and his fellow conspiracy theorist witnesses speculate, the FBI must keep the records that it wants to hide. Despite their speculative nature, the FBI has made repeated efforts to address the possibilities that Plaintiff has raised regarding additional search methods. It has addressed the Oklahoma City Field Offices I and S drives, on-site Evidence Control Room, and valuable evidence vault; it has consulted with the Crime Lab; it has addressed Plaintiffs Washington Field Office/ Q9 & Q10 suggestion; and it has addressed the alleged Los Angeles tape sale theory. Even if the thorough searches that the FBI conducted were not by themselves sufficient to demonstrate the FBIs good faith (particularly given the presumption of good faith to which the FBI is entitled), its efforts to pursue what are essentially nothing but one wild goose chase after another, in the interest of satisfying Plaintiff and this Court, would more than adequately do so. Meeropol v. Meese, 790 F.2d 942, 953 (D.C. Cir. 1986). 9
9 Plaintiffs repeated suggestion at trial, that the timing of the FBIs efforts undermines its good faith, was misguided. Given that the only relief at stake in this proceeding is the possibility that the FBI might be ordered to conduct additional searches, Plaintiff cannot claim to be prejudiced by the FBIs willingness to undertake additional efforts or provide more information to the Court at any point before judgment. See Meeropol, 790 F.2d at 953 (an agencys further efforts to respond to a plaintiffs FOIA request suggest a stronger, rather than a weaker, basis for accepting the integrity of the search); Conti v. U.S. DHS, No. 12-5827, 2014 WL 1274517, at *15 (S.D.N.Y. Mar. 24, 2014) (supplemental searches that uncovered additional records did not suggest bad faith). All the more so where everything the FBI has done since originally providing Plaintiff with the 30 tapes and 200 pages that it found only confirms that the FBIs initial search was reasonable. Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 3 of 7 4 The FBI has even gone so far as to bring six individuals to testify who are either entirely outside the FBI or long since retired. Sheriff Charles Hanger explained that, contrary to Plaintiffs longstanding contention, the videotape that Plaintiff received was in fact a true unedited copy of the tape that then-Trooper Hanger recorded in his dashboard camera, which he did not turn on until Timothy McVeigh was already in custody inside his patrol car. Richard Williams, former GSA employee and building manager for the Murrah Federal Building, testified that the surveillance cameras mounted on that building were not operational for several years prior to the bombing. Mr. Williams testimony must be given far more weight than the passing observations of Plaintiffs witnesses Mr. Browning and Mr. Cooley, particularly when Mr. Browning admitted that the tour he described had taken place four years prior to the bombing, in 1991, Mr. Cooley only claimed to have visited the area once in connection with a bid he did not win, and both admitted they did not know whether any video recording equipment in the Murrah Building was operational on April 19, 1995. Former Special Agents J on Hersley, Larry Tongate, and Walter Lamar were personally involved in the OKBOMB investigation, either as case agents (SAs Hersley and Tongate), who would be familiar with all the evidence in the case, or as an on-the-ground investigator (SA Lamar) who had particular experience with collecting and viewing the videotape surveillance footage, and they all testified that the FBI had never collected or had in its possession footage showing the Ryder truck detonating in front of the Murrah Building which is the other tape, in addition to the unedited Hanger tape, that Plaintiff claims is missing from the response he received. Plaintiff repeatedly suggested at trial that the Court is not allowed to consider the existence of the tapes that Plaintiff is seeking. But he is only half right. Under FOIA law, a plaintiff cannot undermine a search that looked in all the right places just by speculating that Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 4 of 7 5 something is missing, or even by identifying known records that were not included in the response that he received. Trentadue v. FBI, 572 F.3d 794, 797 (10th Cir. 2009) (the issue, in a case challenging an agencys FOIA search, is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate[,] . . . [which is determined under] a standard of reasonableness, and is dependent upon the circumstances of the case (internal quotation omitted)); see id. at 797-98 (Courts inquiry is not [focused] on whether additional documents exist that might satisfy the request); Rodriguez v. U.S. Dept of Army, No. 12-1923, 2014 WL 1245001, at *5 (D.D.C. Mar. 27, 2014) (despite the defendants inability to produce the missing documents, the search was sufficiently thorough and reasonable for the circumstances). 10
But that does not mean that this Court has to ignore evidence that there are no tapes matching Plaintiffs descriptions. When the weight of the evidence shows that there are no other tapes to find, Plaintiff cannot meet his burden to identify an additional search that would be likely to find them. See Weisberg v. U.S. Dept. of Justice, 705 F.2d 1344, 1351-52 (D.C. Cir. 1983) (The FBI's explanations about the possible fate or dubious existence of these documents, though not alone sufficient to relieve the agency of its obligation to prove it has vigorously looked for them, are more than adequate to defend an otherwise reasonable search against the
10 In particular, Plaintiff has suggested that references in newspaper articles and in the unreliable Timeline document to the existence of certain footage should somehow have led the FBI to conduct additional searches simply because that particular footage had not been found. But references in newspaper articles are not obvious leads that an agency is required to pursue, even if it were possible to do so. Physicians for Human Rights v. U.S. Dept of Defense, 675 F. Supp. 2d 149, 162 (D.D.C. 2009) (Finally, the plaintiffs' suggestion that there were obvious leads in the case that would prompt further searches was rejected, as plaintiffs could only rely upon news articles and reports authored by non-governmental sources.). Such sources may be and in this instance appear to be inaccurate. Moreover, as FBI witnesses testified at trial, none of this material provided any clue such as a new search term or identified location that could be used to find additional material. Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 5 of 7 6 charge that a good faith thorough effort would necessarily have uncovered them.); Reyes v. U.S. EPA, No. 10-2030, 2014 WL 2620987, at *4 (D.D.C. J une 13, 2014) (upholding agencys decision not to search for records it had determined did not exist because searches for documents that it never had or no longer possessed would be futile). The Court can certainly take into account that Plaintiff has already received the only Hanger tape that there ever was, and that the individuals in the FBI who would be most likely to know if the FBI had a tape showing the Ryder truck detonation Ms. Vernon and SAs Hersley, Tongate, and Lamar are all in agreement that the FBI never had or knew of such a tape. For the foregoing reasons, Defendant respectfully requests that the Court enter judgment in favor of the FBI.
DATED this August 7, 2014.
Respectfully submitted,
STUART F. DELERY Assistant Attorney General CARLIE CHRISTENSEN Acting United States Attorney (#0633) J ARED C. BENNETT Assistant United States Attorney (#9097) J OHN R. TYLER Assistant Director, Federal Programs Branch
s/ Kathryn L. Wyer KATHRYN L. WYER (#9846) ADAM C. SIPLE kathryn.wyer@usdoj.gov United States Department of J ustice 20 Massachusetts Avenue, NW Washington, D.C. 20530 Tel: (202) 616-8475 Attorneys for Defendants Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 6 of 7 7 CERTIFICATE OF SERVICE
I hereby certify that on August 7, 2014, I caused a true and correct copy of the foregoing document to be served through the Courts electronic filing system on plaintiff, proceeding pro se, at the address listed below:
J esse C. Trentadue Suitter Axland 8 E. Broadway, Suite 200 Salt Lake City, Utah 84111 jesse32@sautah.com
/s/ Kathryn L. Wyer Kathryn L. Wyer Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 7 of 7