Roth v. United States Dep't of Justice

• Decision Date: 28 June 2011
• Docket Number: No. 09–5428.,09–5428.
• Citation: 395 U.S.App.D.C. 340,642 F.3d 1161
• Parties: Anthony C. ROTH, on behalf of Lester L. Bower, Jr., Appellantv.UNITED STATES DEPARTMENT OF JUSTICE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

642 F.3d 1161

395 U.S.App.D.C. 340

Anthony C. ROTH, on behalf of Lester L. Bower, Jr., Appellant

v.UNITED STATES DEPARTMENT OF JUSTICE, Appellee.

No. 09–5428.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 25, 2011.Decided June 28, 2011.

Appeal from the United States District Court for the District of Columbia (No. 1:08–cv–00822).Peter Buscemi argued the cause for appellant. With him on the briefs were Grace E. Speights and Anthony C. Roth.Rhonda C. Fields, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.Before: ROGERS, TATEL, and KAVANAUGH, Circuit Judges.Opinion for the Court filed by Circuit Judge TATEL.Opinion concurring in part and dissenting in part filed by Circuit Judge KAVANAUGH.TATEL, Circuit Judge:

In this Freedom of Information Act case, a Texas death-row inmate seeks information from the Federal Bureau of Investigation that he alleges might corroborate his claim that four other men actually committed the quadruple homicide for which he was convicted. The FBI provided a so-called Glomar response, neither confirming nor denying whether it has records regarding three of the four men (the fourth has died). The FBI defends this response under FOIA Exemption 7(C), which permits agencies to withhold information contained in law-enforcement records to protect against unwarranted invasions of personal privacy. Applying the Supreme Court's decision in National Archives & Records Administration v. Favish, we conclude that (1) the public has an interest in knowing whether the federal government is withholding information that could corroborate a death-row inmate's claim of innocence, and (2) that interest outweighs the three men's privacy interest in having the FBI not disclose whether it possesses any information linking them to the murders. We thus reverse the district court's approval of the FBI's Glomar response. And with only minor exceptions, we affirm the district court's rejection of appellant's other arguments.

I.

Appellant Anthony Roth represents Lester Leroy Bower, Jr., who is on death row in Texas for four murders committed over a quarter century ago. In January 2008, Roth filed FOIA requests with the FBI and the Executive Office for United States Attorneys seeking information concerning the FBI's investigation of the murders and about four individuals who Bower claims are the real killers. Although Bower was prosecuted by the state of Texas, the FBI, believing that the murders implicated various federal laws, jointly investigated the crime with local authorities. An Assistant United States Attorney served as a member of the prosecution team.

“FOIA requires every federal agency, upon request, to make ‘promptly available to any person’ any ‘records' so long as the request ‘reasonably describes such records.’ ” Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C.Cir.2003) (quoting 5 U.S.C. § 552(a)(3)(A)). Although the Act “reflects a general philosophy of full agency disclosure,” it “provides for several exemptions under which an agency may deny disclosure of the requested records.” Id. (internal quotation marks omitted). The agency “bears the burden of establishing the applicability” of any exemption it invokes, and “even if [the] agency establishes an exemption, it must nonetheless disclose all reasonably segregable, nonexempt portions of the requested record(s).” Id. at 57–58; see also 5 U.S.C. § 552(a)(4)(B), (b). In this case, we must consider whether the FBI properly withheld information responsive to Roth's FOIA requests under three statutory exemptions: Exemption 6, covering “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”; Exemption 7(C), covering “records or information compiled for law enforcement purposes,” the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy”; and Exemption 7(D), covering (among other things) records or information “compiled by criminal law enforcement authorit[ies] in the course of a criminal investigation” that “could reasonably be expected to disclose the identity of a confidential source” or “information furnished by” such a source. 5 U.S.C. § 552(b)(6), (7)(C)-(D).

Understanding the FOIA issues in this case requires fairly detailed knowledge of the facts underlying Bower's capital-murder convictions. On the evening of October 8, 1983, law enforcement authorities discovered the bodies of Bobby Glen Tate, Ronald Mays, Philip Good, and Jerry Mack Brown at Tate's ranch near Sherman, Texas. Bower v. State, 769 S.W.2d 887, 889–90 (Tex.Crim.App.1989), overruled in part by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). From the victims' bodies, investigators retrieved eleven .22–caliber, subsonic, hollow-point bullets manufactured by Julio Fiocchi. Id. at 890. Tests run on those bullets and their shell casings indicated that “the shots were fired from either an AR–7 .22 caliber rifle, a Ruger .22 caliber semi-automatic pistol, or a High Standard .22 caliber semiautomatic pistol.” Id. Markings on the bullets and other forensic evidence revealed that a silencer had been used. Id.

The victims' bodies were found in a hangar where Tate stored ultralight aircraft. Id. at 889. Although an ultralight owned by another person was in the hangar when the bodies were discovered, Tate's ultralight was missing. Id. at 889–90. Before the shootings, Philip Good had been assisting Tate in his effort to sell his ultralight. Id. at 889. Good's widow testified that shortly before the murders, Good had told her that he thought he had found a buyer and that the buyer was planning to pick up Tate's ultralight on October 8. Id.

Records showed that Bower made three calls to the Good residence in the days leading up to the murders. Id. at 891. Although Bower admitted calling to inquire about an advertisement Good had placed in Glider Rider magazine, he told FBI investigators that “he had never bought an ultra light, that he had not been in Sherman on the day of the murders, that he had not met Philip Good on the day of the murders and had never met him in person, that he did not know where the missing ultra light was, and that he had never seen the missing ultra light.” Id. at 891–92. Bower also admitted to owning a number of firearms but denied owning a .22–caliber handgun. Id. at 891. At the time, Bower was licensed to sell firearms and ammunition. Id. at 892.

Searching Bower's home, law enforcement officers found, among other things, an instruction manual for a Ruger .22–caliber pistol; information on silencers; a form letter from Catawba Enterprises, a company that dealt primarily in silencer parts; and a record of the firearms that Bower had acquired and sold, which showed that he had purchased a Ruger RST–6 .22–caliber pistol on February 12, 1982, and then sold it to himself on March 1, 1982. Id. In Bower's garage, authorities discovered two ultralight tires and rims with the name “Tate” scratched into each rim. Id. They also seized ultralight tubing that later tests revealed bore a fingerprint from one of the murder victims. Id. In addition, authorities discovered a pair of rubber boots and a blue nylon bag, both of which were stained with blood. Id. at 892–93.

The investigation also revealed that the .22–caliber subsonic Julio Fiocchi bullets used in the murders were “specialty item[s]” not sold “over the counter” at sporting-goods stores. Id. at 893. Records of Bingham Limited, the sole United States distributor of Julio Fiocchi ammunition, indicated that the company “had shipped three boxes of Fiocchi .22 long rifle sub-sonic hollow point ammunition to [Bower] on February 12, 1982 and five more boxes on December 10, 1982.” Id.

Bower was convicted of the four murders and sentenced to death in April 1984. After Bower's efforts to overturn his sentence and conviction on direct appeal and through a state habeas petition failed, he filed a federal habeas petition under 28 U.S.C. § 2254 in the U.S. District Court for the Eastern District of Texas. See Bower v. Quarterman, 497 F.3d 459, 465–66 (5th Cir.2007). Among other things, Bower argued that his trial attorney was ineffective and that the government had withheld material, exculpatory evidence in violation of its obligations under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In June 2000, the district court held an evidentiary hearing on Bower's claim of ineffective assistance of counsel at which Bower testified—something he had not done at his criminal trial. Bower v. Director, Tex. Dep't of Crim. Justice–Inst'l Div., No. 1:92cv182, slip op. at 1, 25, 28–29 (E.D.Tex. Sept. 6, 2002) (“ Bower Habeas Op.”). Bower explained that he contacted Philip Good in the fall of 1983 because he was interested in purchasing an ultralight airplane. Id. at 25. Good then introduced Bower to Tate, who wanted to sell his ultralight. Id. at 25–27. According to Bower, he met Good and Tate at Tate's ranch around 3:00 p.m. on October 8. Id. at 26. After agreeing to buy the ultralight, Bower gave Tate $3000 and wrote an IOU for $1500 on a business card. Id. at 26–27. Bower testified that he then left the ranch with the ultralight at approximately 4:00 p.m. Id. at 27.

Bower's testimony in the habeas proceedings contradicted his earlier statements to FBI investigators—that he had not gone to Sherman to meet Good and had not purchased Tate's ultralight. Bower, 769 S.W.2d at 891–92. Nevertheless, Roth—Bower's attorney and appellant in this case—contends that “[c]ritical components of ... Bower's account are corroborated” by evidence in the prosecution's investigative files. Appellant's Opening Br. 6. Specifically, he points to evidence that soon after the shootings, Tate's widow called the local...