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North v. United States Department of Justice

United States District Court, District Circuit

September 9, 2013

JEFFREY NORTH, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

Plaintiff Jeffrey North, proceeding pro se, filed suit against the Drug Enforcement Administration (“DEA”) and several other federal agencies alleging violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The only remaining claim at issue is Count 1 of the Amended Complaint, which challenges the DEA’s Glomar response to the Plaintiff’s FOIA request seeking information regarding a purported DEA informant—Gianpaolo Starita—who testified against the Plaintiff during his criminal trial. The Court previously granted summary judgment in favor of the DEA on this count, but vacated that judgment upon the Plaintiff’s motion to reconsider, and ordered the DEA to conduct a search for responsive records. Presently before the Court are the parties’ renewed cross-motions for summary judgment and the Plaintiff’s motion for a Vaughn index. Upon consideration of the parties’ pleadings, [1] the relevant legal authorities, and the summary judgment record, the Court finds the DEA conducted an adequate search for responsive records, which revealed no records responsive to the Plaintiff’s request. Accordingly, the DEA’s [149] Second Renewed Motion for Summary Judgment is GRANTED and the Plaintiff’s [153] Second Renewed Cross-Motion for Summary Judgment and [164] Motion for Vaughn Index are DENIED.

I. BACKGROUND

A. Plaintiff’s FOIA Requests

Following a jury trial in March 2000, the Plaintiff was convicted of conspiracy to possess with intent to distribute marijuana and various firearm-related offenses. See United States v. North, No. 98-10176, Jury Verdict (D. Mass. Mar. 15, 2000). The Plaintiff is currently serving a combined term of imprisonment of 540 months. United States v. North, No. 98-10176, Judgment (D. Mass. Dec. 26, 2000). Between 2004 and 2008, the Plaintiff submitted six separate Freedom of Information Act requests to the DEA seeking information regarding Gianpaolo Starita, who testified against the Plaintiff during the Plaintiff’s criminal trial. See First Little Decl., ECF No. [19-1], ¶¶ 14-35. The Plaintiff’s Amended Complaint challenges the DEA’s response to the request submitted on July 13, 2007, seeking any and all documents “which contain any debriefing/proffer statements made/given by Gianpaolo Starita in regard to [Plaintiff].” First Little Decl., ECF No. [19-1] Ex. M at 1. The Plaintiff explained that during the Plaintiff’s criminal trial, Starita testified that

[Starita] was a drug dealer in the illegal purchase and sales of marijuana and that his partners in this illegal drug business were Gele Kostovski and Roger Leach, with Robert Ortel-Wortel, Josh Goodman, Michael Papone, Jay Grassis being other persons who assisted [Starita] in his illegal drug business. Additionally, Starita testified in relation to telephone conversations that he had with Regina Monaghan and that he met her at Boston Billiards. Starita also testified that he had met Carla North at the apartment of Roger Leach. Starita testified that he had a relationship with DEA Agent Damian Farley and ATF Agent John Mercer testified at my trial that he debriefed Starita.

Id. The request included an affidavit from the Plaintiff averring that Starita testified to the above information, and further testified that he (Starita) “sold large quantities of marijuana to [Plaintiff].” Id. at 3.

The DEA responded to the Plaintiff’s 2007 request on September 20, 2007, by indicating that the agency would “neither confirm[] nor den[y] the existence of any requested records regarding Gianpaolo Starita.” First Little Decl., Ex. O (9/20/2007 Ltr.) The agency explained that

Without proof of death or an original notarized authorization, to confirm the existence of law enforcement records or information about another person is considered an unwarranted invasion of personal privacy. Such record would be exempt from disclosure pursuant to Exemptions (b)(6) and/or (b)(7)(C) of the Freedom of Information Act (FOIA), Title 5 U.S.C. Section 552. Before DEA can begin processing information related to any alleged criminal background, it will be necessary for you to provide either proof of death or an original notarized authorization (privacy waiver) from that person.

Id. The Plaintiff appealed the DEA’s response to the Office of Information Policy (“OIP”), but the OIP affirmed the DEA’s action. First Little Decl., Exs. P (11/3/2007 Appeal from denial of FOIA request) & R (12/31/2007 Ltr. affirming DEA response).

On May 1, 2008, the Plaintiff submitted a FOIA request to the Drug Enforcement Administration seeking “all documents . . . that contain any debriefing/proffer statements made/given by Gianpaolo Starita, ” and repeating the same summary of Starita’s testimony as set forth in the Plaintiff’s 2007 request. Pl.’s Reply, Ex. A (5/1/2008 FOIA Request). The Plaintiff’s request included an excerpt of the trial transcript of Mr. Starita’s testimony, and an affidavit from the Plaintiff averring that the transcript excerpts “are true and correct copies from the trial transcripts as [the Plaintiff] received them from the court reporter.” Id. at 3. The DEA once again refused to confirm or deny whether any of the requested records exist. Pl.’s Reply, Ex. B (9/18/2008 Ltr.).

B. Litigation History

The Plaintiff filed suit on August 15, 2008, and amended his complaint on September 12. See Compl., ECF No. [1]; Am. Compl., ECF No. [3]. Count I of the Amended Complaint challenges the DEA’s response to the Plaintiff’s 2007 Request. Am. Compl. at 2-3. The Plaintiff has never amended his complaint to include the DEA’s response to his 2008 request. Count II contests the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ response to a FOIA request submitted by the Plaintiff in July 2007 which also sought records relating to Mr. Starita. Id. at 3-4. Counts III and IV challenge responses from the Executive Officer for United States Attorneys to FOIA requests seeking documents concerning Grand Jury proceedings relating to the Plaintiff. The Court granted summary judgment to the Defendants on Count I-II and IV on September 30, 2009. North v. U.S. Dep’t of Justice, 658 F.Supp.2d 163 (D.D.C. 2009). The Court subsequently granted summary judgment on Count III in favor of the Executive Office for the United States Attorneys. North v. U.S. Dep’t of Justice, 774 F.Supp.2d 217 (D.D.C. 2011).

Upon reconsideration, the Court determined that its ruling with respect to Count I was too broad, and thus vacated the grant of summary judgment and ordered the DEA to “search for and produce any responsive records that contain information identical [to] that which has been publicly disclosed” in trial transcripts submitted by the Plaintiff. North v. U.S. Dep’t of Justice, 810 F.Supp.2d 205, 208 (D.D.C. 2011). The DEA sought reconsideration of the Court’s September 2011 order, which the Court denied, setting the ...


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