257 F.3d 534 (6th Cir. 2001), 99-1608, Rugiero v United States Dept. of Justice

Docket Nº:99-1608
Citation:257 F.3d 534
Party Name:Patrick Rugiero, Plaintiff-Appellant, v. United States Department of Justice; Department of Treasury, Defendants-Appellees.
Case Date:July 12, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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257 F.3d 534 (6th Cir. 2001)

Patrick Rugiero, Plaintiff-Appellant,


United States Department of Justice; Department of Treasury, Defendants-Appellees.

No. 99-1608

United States Court of Appeals, Sixth Circuit

July 12, 2001

Argued: November 2, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Flint, No. 97-40520, Paul V. Gadola, District Judge.

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David I. Schoen, Montgomery, Alabama, for Appellant.

William L. Woodard, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellees.

Before: KRUPANSKY, BATCHELDER, and GILMAN, Circuit Judges.


BATCHELDER, Circuit Judge.

Patrick Rugiero filed requests with eleven components of the United States Departments of Justice and Treasury under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA" or "Act"), for information regarding himself. Unsatisfied with the responses he received, Rugiero filed a complaint seeking declaratory and injunctive relief against all eleven divisions. Prior to commencement of discovery, the defendants filed motions for summary judgment, which the district court granted as to most of the defendant components. Rugiero v. United States Dep't of Justice, 35 F.Supp.2d 977 (E.D. Mich. 1998). When those remaining processed Rugiero's FOIA request or released particular documents, the district court dismissed these defendants. Rugiero moved for reconsideration, but the district court denied the motion as untimely. For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Statement of Facts

A. Rugiero's Trial and Conviction

On June 19, 1992, a jury convicted Rugiero of distributing cocaine and conspiracy to distribute, or possess with intent to distribute, cocaine and heroin, but returned a verdict of not guilty to charges of distributing heroin, intimidating a witness, and using a firearm during a violent crime. United States v. Rugiero, 804 F.Supp. 925, 928 (E.D. Mich. 1992). On the evening following submission of the case to the jury, local news broadcasts identified Rugiero's defense counsel, N.C. Deday LaRene, as the target of a federal criminal investigation for his alleged ties to organized crime figures. Two days later, a juror passed a note to the court expressing concern about the deliberations. Shortly thereafter, the jury indicated that it had reached a verdict, and the juror who authored the first note sent a second note to the court asking that the first note be disregarded. After receiving the verdicts, the court polled each juror individually and assured itself that, although several jurors had seen or heard about the news report, outside prejudicial information did not influence the verdicts.

The district court denied Rugiero's motion for a new trial based on the prejudice resulting from outside influences on the jury. Id. at 931. We affirmed the conviction on appeal. United States v. Rugiero, 20 F.3d 1387 (6th Cir.) (2-1 decision),cert. denied, 513 U.S. 878 (1994). LaRene represented Rugiero in all phases of his criminal trial and appeal, and Rugiero claims that during

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the course of his criminal trial he never knew--and that the government withheld from him information--that the federal government was preparing to indict LaRene. Viewing his attorney's impending indictment as a conflict of interest that prejudiced his defense at trial and on appeal, Rugiero has filed an action under 28 U.S.C. § 2255 seeking to set aside his conviction. Frustrated by the government's purported obfuscation of his requests for discovery and alleged misconduct in the section 2255 proceeding, Rugiero turned to the FOIA as an alternative means of learning information to use in his efforts to set aside his conviction. The same district court judge has presided over all of these actions, the criminal trial, the section 2255 action, and this FOIA case.

B. Rugiero's FOIA Requests

The complaint in this case identifies the eleven components from which Rugiero requested records in separate counts. The following defendants figure prominently in the discussion in this appeal: the Executive Office of the United States Attorneys ("EOUSA") named in Count IV; the United States Secret Service ("USSS"); the Internal Revenue Service ("IRS"); the Tax Division of the Department of Justice ("DOJ Tax"); and the Drug Enforcement Agency ("DEA") named in Count XI.

Rugiero requested, pursuant to the FOIA, "a copy of any and all records, documents and any type of information that your agency has or had in its possession that is in any way connected to, related to or even remote [sic] in reference to my name." Each defendant responded to the request by searching its records, which resulted in production of over one thousand pages of responsive documents in total, with the vast majority withheld in full or in part pursuant to claims of statutory exemption under the Act. Three defendants, the USSS, IRS, and DOJ Tax, located no responsive documents.

The EOUSA, United States Marshals Service, and the DEA each conducted additional searches either at the administrative appeals level or in response to this suit and identified new documents subject to disclosure in response to Rugiero's FOIA request. The IRS asked Rugiero to narrow the scope of his request, and he identified all "Criminal Investigation Division records that may have been compiled between the years 1984 and 1993 inclusive" as the object of his FOIA query.

During the district court proceedings, DOJ Tax maintained that it never received Rugiero's FOIA request. Rugiero, 35 F.Supp.2d at 986. When Rugiero produced a copy of it, however, the district court ordered DOJ Tax to process the request immediately. Id. Once DOJ Tax complied, the district court granted the division's motion for summary judgment.

Also, Rugiero contested the EOUSA's withholding of several specific documents. Document 2 is a letter from the federal prosecutor in Rugiero's criminal case to LaRene regarding intimidating conduct and threats directed at jurors and other third parties associated with Rugiero's criminal trial. Because the document had already been disclosed to Rugiero's defense counsel, the district court ordered the EOUSA to release the document in its entirety to Rugiero, id. at 984, though the court later modified this order to redact the names of jurors and third parties. The district judge conducted an in camerareview of Document 3, a letter from a federal prosecutor to an FBI agent regarding jury tampering in Rugiero's criminal case, Document 5, a document on which the United States Probation Department relied in preparing Rugiero's presentence report, and Documents 9 and 10,

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allegedly containing correspondence between a federal prosecutor and third parties regarding the investigation of LaRene. Id. at 984-85. Upon review, the court declined to order the EOUSA to produce any of these documents. Id.

II. Standard of Review

An agency's denial of a FOIA request is reviewed by a district court de novo. 5 U.S.C. § 552(a)(4)(B). Similarly, this court reviews the propriety of a district court's grant of summary judgment in a FOIA proceeding de novo. Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1078 (6th Cir. 1998) (citing Detroit Free Press, Inc. v. Department of Justice, 73 F.3d 93, 95 (6th Cir. 1996)). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When reviewing a motion for summary judgment, the evidence, all facts, and any inferences that may be drawn from the facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To prevail, the non-movant must show sufficient evidence to create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990). A mere scintilla of evidence is insufficient; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

III. Applicable Provisions of the FOIA

The FOIA generally provides that every federal agency shall promptly make available upon request records reasonably described. 5 U.S.C. § 552(a)(3)(A). Under the Act, an agency may not withhold or limit the availability of any record, unless one of the FOIA's specific exceptions applies. Id. § 522(d). These exceptions are to be narrowly construed,Department of the Interior v. Klamath Water Users Protective Ass'n, 121 S.Ct. 1060, 1065 (2001) (quoting United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989)), and the burden is on the agency to justify its action. 5 U.S.C. § 552(a)(4)(B). Therefore, the structure of the Act reflects "a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Department of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976) (quotation omitted).

To ensure the breadth of disclosure, the Act authorizes courts to examine documents in camera when reviewing the propriety of an agency's withholdings. 5 U.S.C. §552(a)(4)(B)....

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