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Lewis-Bey v. United States Department of Justice

February 5, 2009

JERRY LEWIS-BEY, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

This matter is before the Court on Defendant's Second Motion for Summary Judgment.*fn1 Upon consideration of the Motion, Plaintiff's Opposition, the Reply and the record herein, the Motion will be granted.

I. BACKGROUND

Plaintiff brings this civil action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, against the United States Department of Justice ("DOJ") "to order the production of Bureau of Alcohol, Tobacco, Firearms and Explosives ["ATF"] records on [P]laintiff and his organization, the Moorish Science Temple of America (MSTA)." Compl. ¶ 1. He indicated that the requested records "can be located in [ATF] file 7665 0683 1501 (01), which . . . originated out of the [ATF's] St. Louis field office." Id. For convenience, the Court refers to the responsive records as the "1983 investigation file."*fn2

Plaintiff's quest for ATF records extends back to 1997, see Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. [#14], Declaration of Averill P. Graham ("Graham I Decl.") ¶¶ 3-58 & Ex. A (July 4, 1997 FOIA Request). The particulars of the request have changed over time, and the ATF has disclosed records in the past. The FOIA request relevant to this action, see Graham I Decl., Ex. M (July 17, 2000 FOIA Request), is essentially, Plaintiff's response to the disclosure of records responsive to his original July 4, 1997 request by the ATF on June 2, 2000. See Graham Decl., Ex. J (June 2, 2000 letter from A.P. Graham, Disclosure Specialist, ATF); Compl. ¶ 5. Plaintiff acknowledges receipt of the June 2000 disclosure, explains that the "ATF was the lead agency in [an] investigation which began in 1983 and was terminated in March or April 1987," and specifically requests information pertaining to himself and to the MSTA, particularly "all pen registers, surveillance logs, and toll records" at a particular address, 11882 San Remo, between April 1986 and July 1986, as the ATF "only sent . . . documents from 1988 to 1997." Id., Ex. M (July 17, 2000 FOIA Request).

As Plaintiff indicated, the records in the 1983 investigation file were compiled in the course of "an investigation conducted by multiple law enforcement agencies, including ATF, regarding [P]laintiff's large-scale criminal drug organization." Graham I Decl. ¶ 65; see id. ¶¶ 62, 66-69. The United States Court of Appeals for the Eighth Circuit summarized the criminal proceedings against Plaintiff and his co-defendants as follows:

The United States presented evidence at the . . . trial tending to show that Jerry Lee Lewis participated in and became the leader of a powerful criminal racketeering enterprise that for over ten years controlled a large percentage of the market for T's and Blues (a heroin substitute), heroin, and cocaine in north St. Louis. Lewis obtained and maintained his position by murdering competitors and others who threatened his organization (the Jerry Lewis Organization or JLO). The profitable but bloody activities of the appellants in this case, all members of the JLO, were described by other JLO members who eventually cooperated with the government[.] In essence, the investigation and prosecution of Jerry Lee Lewis and his associates produced evidence of a long-term, violent drug-trafficking enterprise operating behind a facade known as Subordinate Temple No. 1 of the Moorish Science Temple of America (MSTA) . . ..

After a trial lasting almost nine months, one of the longest criminal trials in the history of the Eastern District of Missouri, a jury returned guilty verdicts against all seven appellants on one count of conducting a criminal racketeering enterprise . . ., against six appellants . . . on one count of conspiring to conduct and participate in the same criminal racketeering enterprise . . ., [and] Jerry Lee Lewis on six counts of committing violent crimes (murder, conspiracy to commit murder, and attempted murder) in aid of a racketeering enterprise.

United States v. Darden, 70 F.3d 1507, 1516-17 (8th Cir. 1995) (footnote omitted), cert. denied, 517 U.S. 1149 (1996). The Eighth Circuit expressly rejected Plaintiff's arguments regarding the sufficiency of the evidence against him, concluding that "[t]he evidence overwhelmingly support[ed] the jury's findings that [Plaintiff] . . . conspired and attempted to murder Rochelle Bartlett; conspired and attempted to murder 'Bud' Green; conspired to murder and murdered Deputy Sheriff Antar Tiari; conspired to murder and murdered Bruce 'Hat' Henry; conspired to murder and murdered Count Johnson; and conspired to murder and murdered David 'Kiki' Grady. Id. at 1526. Among the murder victims was a Grand Jury witness. Graham I Decl. ¶ 64. Plaintiff was sentenced to life in prison. United States v. Darden, 70 F.3d at 1517.

Plaintiff's history of violent crime is relevant to this FOIA action. At this point, it is helpful to recall the ATF declarant's description of Plaintiff's activities and background:

[P]laintiff collects intelligence about himself, his co-racketeers, his competitors and law enforcement personnel (an exhibit at his trial was a seized massive compilation of news clippings, police reports/excerpts and like materials that his enterprise relied upon to help advance their crimes). The information [P]laintiff collects is used either to further criminal acts or circumvent the criminal discovery process. Plaintiff has been linked to criminal behavior outside of prison despite his being imprisoned since 1991. For example, [the declarant has] been advised that narcotics investigators developed information . . . that [P]laintiff was involved in a narcotics distribution conspiracy while incarcerated at Leavenworth Federal prison, that allegedly influenced and conducted narcotics sales in the Kansas City and St. Louis areas. Testimony at [P]laintiff's trial indicated the investigation missed some $400,000 in drug proceeds which have never been found and which were removed from a hiding place by his associates; thus, his control over these funds, or the indebtedness of any who have benefit[t]ed from them since his conviction, helps provide [P]laintiff influence which could enable him to retaliate against witnesses, informants, police and others who he merely believes are responsible for his conviction, whether or not his belief is accurate. For example, he is known to have caused the killing of person(s) he believed to be an informant(s). [The declarant has] been informed by the [prosecutor] that plaintiff's transparent efforts to serve as a clearing house for information he has previously been provided under the FOIA is misused to the extent that he or his imprisoned peers (and/or his street loyalists) can misuse the information, and not just in his, or their, ill-fated legal proceedings, comports with his proven history of "counterintelligence" gathering to the detriment of his victims and public order. [She] was advised by the [United States Attorney's Office for the Eastern District of Missouri] that Plaintiff was known to conduct preincarceration meetings with his co-racketeers in which they went over what was known or suspected, regarding, for example, who might be "snitches" or how a recent assassination had been conducted and what might be learned from the process, as assessed against other collected information, for future use.

Graham I Decl. ¶ 67.

In the March 30, 2007 Memorandum Order [#19] ("Mem. Order"), the Court concluded that, based on "the unique set of circumstances" presented in this case, id. at 15, the ATF's decision to withhold the 1983 investigation file was proper under FOIA Exemption 7(A), which protects law enforcement records "to the extent that production of such . . . records . . . could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). At that time, Plaintiff's petition seeking to overturn his criminal convictions was pending before the United States Court of Appeals for the Eighth Circuit. Graham I Decl. ¶ 64. The Court found that release of information in the 1983 investigation file, particularly the "summaries of agents' activities, witness names and other identification, witness background information, [and] information provided by witnesses," id., could reasonably be expected to interfere with prospective enforcement proceedings in light of Plaintiff's convictions for the murder of a Grand Jury witness, a Deputy Sheriff, and a person who Plaintiff believed to be an informant. See Mem. Order at 16.*fn3 Plaintiff's background strongly suggests that release of this information "would have a chilling effect on witness testimony at a subsequent retrial." Id. at 17.

Defendant's Second Motion for Summary Judgment pertains to the portions of the 1983 investigation file previously withheld under Exemption 7(A). Based on Plaintiff's representation "that there were no longer any pending criminal appeals," Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s 2d Mot."), Second Declaration of Averill P. Graham ("Graham II Decl.") ¶ 6, the ATF then "dropped the Exemption," id. ¶ 24, "reviewed 337 pages of material responsive to [Plaintiff's] FOIA request," id. ¶ 6, and on August 8, 2007 released "approximately 300 pages . . . and withheld four documents (consisting of 7 pages) in full pursuant to FOIA [E]xemption 7(C) and Fed. R. Crim. P. 6(e)."*fn4 Defendants' Status Report Regarding Its Disclosure of Segregable Records to Plaintiff [#24] ¶ 4. In addition, the ATF released three additional pages when it was discovered that Plaintiff's name appeared at the top of each page, and it re-released two pages of records on August 13, 2008 from which Plaintiff's name mistakenly had been redacted.*fn5 Graham II Decl. ¶¶ 7, 9.

II. DISCUSSION

A. Summary Judgment Standard

The Court grants a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

In a FOIA case, the Court may grant summary judgment based on the information provided in affidavits or declarations when these submissions describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

B. Plaintiff's Response to the August 8, 2007 Release*fn6

Plaintiff responded to the ATF's August 8, 2007 release of records by pointing out records that were not disclosed. These items included copies of surveillance photos, toll records of his residence (12654 Stoneridge), his apartment (11882 San Remo in St. Louis) and two MSTA locations (4408 Marcus and 3600 Grand), pager records from Gencom Pager Company, and pen register records from his residence (12654 Stoneridge) and the MSTA's locations (4408 Marcus and 3600 Grand). See Plaintiff's Motion in Opposition to Dismiss as Moot [#25] ¶¶ 5-10; Reply to Defendant's "Second Motion" to Dismiss as Moot [#27] ¶ 3.

In response to these assertions, ATF staff "conducted another thorough review of the file," and found no surveillance photographs. Reply to Plaintiff's "Motion in Opposition to Dismiss as Moot" [#26], Declaration of Marilyn R. LaBrie ("LaBrie Decl.") ΒΆ 4. A subsequent "review[] [of] the 1983 file which was retrieved pursuant to [Plaintiff's] FOIA request and this litigation" located "no pen-register or telephone toll records listing the Moorish Science Temple, or [Plaintiff], or any of the addresses ...


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