Quinon v. F.B.I.

• Decision Date: 28 June 1996
• Docket Number: No. 94-5261,94-5261
• Citation: 86 F.3d 1222
• Parties: Jose M. QUINON and G. Richard Strafer, Appellants, v. FEDERAL BUREAU OF INVESTIGATION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1222

86 F.3d 1222

318 U.S.App.D.C. 228

Jose M. QUINON and G. Richard Strafer, Appellants, v. FEDERAL BUREAU OF INVESTIGATION, Appellee.

No. 94-5261.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 23, 1995.

Decided June 28, 1996.

As Amended Aug. 20, 1996.

Appeal from the United States District Court for the District of Columbia (No. 93cv00763).

Ronald R. Massumi, with whom G. Richard Strafer was on the briefs, Washington, DC, argued the cause for appellants.

Marina U. Braswell, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on the brief, argued the cause for appellee. John D. Bates, Assistant United States Attorney, entered an appearance.

Sharon Kegerreis, Miami, FL, was on the brief for amicus curiae National Association of Criminal Defense Lawyers, Inc.

William C. Walsh, James K. Green, and Arthur B. Spitzer, Washington, DC, were on the brief for amicus curiae American Civil Liberties Union Foundation of Florida, Inc. Elliot H. Scherker, Miami, FL, was on the brief for amici curiae Florida Association of Criminal Defense Lawyers and Florida Association of Criminal Defense Lawyers--Miami Chapter.

Before BUCKLEY, WILLIAMS, and SENTELLE, Circuit Judges.

BUCKLEY, Circuit Judge:

Appellant Jose Quinon, along with two other criminal defense lawyers, were the subject of a brief obstruction of justice investigation by the Federal Bureau of Investigation ("FBI" or "Bureau"). Quinon and his law partner, G. Richard Strafer, seek the production, under the Freedom of Information Act ("FOIA"), of documents acquired by the FBI during the course of that investigation. The FBI withheld many of the documents requested by Quinon and Strafer pursuant to FOIA exemptions relating to records and information compiled for law enforcement purposes. The district court granted the FBI's motion for summary judgment on the basis of affidavits filed by FBI special agents. We reverse and remand so that the district court may conduct an in camera review of the withheld documents to verify that there was a legitimate law enforcement basis to the investigation and that the FBI's sources provided information with an expectation of confidentiality.

I. BACKGROUND

This case springs from an FBI investigation into a possible obstruction of justice. Specifically, in August-September 1991, the FBI investigated three criminal defense lawyers, including appellant Jose Quinon, to determine whether they had conspired to disqualify the entire Eleventh Circuit from hearing the appeal of the former head of the Medellin cocaine cartel, Carlos Lehder.

Lehder was convicted in 1988 of various drug trafficking charges in the District Court for the Middle District of Florida. After sentencing, Lehder's trial counsel, Quinon and Edward Shohat, informed the trial judge that Lehder did not have immediate access to funds with which he could retain appellate counsel; they argued that because Lehder was "indigent, although ... not truly indigent," he was entitled to court-appointed counsel. Transcript of Sentencing Proceedings, United States v. Lehder-Rivas, No. 81-82-Cr-J-12 (M.D. Fla. July 20, 1988), at 208. The trial judge was skeptical of this plea of quasi-indigence from a man who was purportedly a billionaire, see Mary Thornton, Reputed Top Cocaine Trafficker Arrested in Colombia Faces U.S. Trial, Washington Post, Feb. 5, 1987, at A18; and he instructed a magistrate judge to conduct a hearing on the matter. The magistrate confronted counsel with published, though unconfirmed, reports, see Dave Von Drehle, Ohhhhh Miami!, A.B.A. Journal, April 1, 1988, at 66, that Lehder had paid his lawyers millions of dollars. Quinon and Shohat responded that reports of their fees had been exaggerated, and they have since filed affidavits to that effect. The magistrate then appointed counsel to represent Lehder on appeal.

Prompted by concerns about the quickly mounting costs of the Lehder appeal, in January 1989, the Circuit Executive for the Eleventh Circuit instructed Lehder's court-appointed counsel to "temporarily cease work" on the case. Joint Appendix ("J.A.") at 211. On March 17, 1989, the Eleventh Circuit designated Judge (now Chief Judge) Tjoflat, who was not on the panel hearing the Lehder appeal, to determine whether Shohat and Quinon should be relieved of their responsibility to represent Lehder in his appeal. Judge Tjoflat presided over a meeting of all the interested parties in April 1989, in which Quinon announced his willingness to re-enter the case. Quinon was eventually joined by Strafer as co-counsel.

The following year, on March 6, 1990, now-Chief Judge Tjoflat wrote a letter to several other judges on the Eleventh Circuit questioning the propriety of having a court-appointed counsel represent a defendant on appeal if that defendant had been represented by privately retained counsel at trial. He noted that the problem "came to a head in the celebrated Carlos Lehder case," in which he suggested that the trial attorneys may have been overpaid, held the excess funds in trust, and re-entered the case only when it became clear that they would be required to inform the court how much money they had received. J.A. at 237-38. In his letter, Chief Judge Tjoflat proposed that the circuit rules be amended to prohibit criminal defense attorneys from declining representation after trial. On April 1, 1991, the Eleventh Circuit promulgated Rule 46-1(d)(1) ("Rule 46"), which provides that retained counsel for a criminal defendant cannot abandon representation except by order of the court.

Rule 46 was not well received in the Florida legal community. See Mary Hiadky, A bitter clash over criminal law fees, Miami Review, Aug. 9, 1991, at 10A (hereinafter "Miami Review"). On July 22, 1991, the Chief Judge sent a letter to John W. Thornton, Jr., a representative of the Board of Governors of the Florida Bar, in which he explained the rationale underlying the rule. This letter did not refer to the Lehder case; instead, it discussed a hypothetical that involved a low-level drug courier whose lawyer was paid by a higher-up. A number of Florida criminal defense lawyers were unpersuaded by the Chief Judge's defense of Rule 46. For example, at the Florida Bar's July 1991 Board of Governors meeting, Stephen Bronis, a spokesman for the Florida Association of Criminal Defense Lawyers, harshly criticized the rule, reportedly terming it "judicial murder of the Sixth Amendment right to counsel." Miami Review, at 10A.

Appellants learned of Chief Judge Tjoflat's March 6, 1990, letter and, on August 6, 1991, they filed a motion to disqualify the Eleventh Circuit from hearing the Lehder appeal. They alleged that the letter had falsely accused Lehder's trial counsel of being overpaid and of holding the excess funds in trust for him and that Chief Judge Tjoflat had made similarly false statements in his correspondence with Thornton. Appellants asserted, finally, that the Eleventh Circuit had been tainted by Chief Judge Tjoflat's ex parte statements and, as a consequence, the entire Circuit should be disqualified from hearing the Lehder appeal.

Shortly thereafter, a complainant informed the FBI of an alleged violation of federal law; and on or about August 9, 1991, at the instigation of the lead prosecutor in the Lehder case, Assistant United States Attorney ("AUSA") Ernst Mueller, the FBI began investigating "possible obstruction of justice by [Quinon] and two others for possibly acting in concert in an attempt to cause the entire Eleventh Circuit Court of Appeals to recuse themselves from the [Lehder] case." Declaration of FBI Special Agent James Felix dated Aug. 2, 1993, p 36 ("Felix Declaration").

The investigation was short-lived. On September 11, 1991, barely a month after its inception, Mueller advised the Bureau that he no longer needed its assistance in the matter and filed his answer to the August 6 motion to disqualify the Eleventh Circuit. He contended that the motion was part of an effort by Quinon and others, to discredit Rule 46. The motion to disqualify the Eleventh Circuit was denied, and Lehder's sentence was ultimately affirmed. See United States v. Lehder-Rivas, 955 F.2d 1510 (11th Cir.1992).

On November 21, 1991, appellants Quinon and Strafer filed a FOIA request for the documents compiled during the FBI's brief obstruction of justice investigation. The FBI located 77 pages, but ultimately released only sixteen, and those in redacted form. The documents were withheld pursuant to Exemptions 7(C) and (D) of FOIA, 5 U.S.C. § 552(b)(7)(C) & (D), "and/or" Exemption (j)(2) of the Privacy Act, 5 U.S.C. § 552a(j)(2). J.A. at 424. FOIA Exemptions 7(C) and (D) apply to

records or information compiled for law enforcement purposes, but only to the extent that [their] production ... (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, [or] (D) could reasonably be expected to disclose the identity of a confidential source ... [and] information furnished by a confidential source....

5 U.S.C. § 552(b)(7)(C), (D). Appellants filed suit in the district court to obtain the remaining pages. Both parties moved for summary judgment.

By Memorandum Opinion and Order dated August 4, 1994, the district court granted the FBI's motion for summary judgment and denied appellant's cross-motion. Quinon v. FBI, Civ. No. 93-0763 (D.D.C. Aug. 4, 1994) ("Mem. op."). Based on the information contained in the affidavits of two FBI special agents, the court held that the Bureau had demonstrated that the records were compiled for legitimate law enforcement purposes and it dismissed, as "mere speculation," allegations that the investigation was retaliatory in design. Id. at 2-3. The district court further concluded that Exemptions 7(C) and (D) of FOIA provided a sound basis for the FBI to withhold the information at...