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Marino v. Department of Justice

United States District Court, District Circuit

November 12, 2013

DEPARTMENT OF JUSTICE, et al., Defendants.


ROSEMARY M. COLLYER, District Judge.

On May 29, 2012, Vincent M. Marino filed a pro se lawsuit against several agencies within the Department of Justice for allegedly violating the Freedom of Information Act, Privacy Act, and Sunshine Act. Currently incarcerated in federal prison on racketeering and drug-related convictions, Mr. Marino requests a variety of records that he believes will both exonerate him and show government misconduct. Specifically, Mr. Marino claims that the records will show that Angelo "Sonny" Mercurio, James "Whitey" Bulger, and Stephen Flemmi set him up with false charges, aided and abetted by rogue federal agents and prosecutors. The defending federal agencies move to dismiss, or in the alternative for summary judgment. The Court finds that the motion largely is premature. While Mr. Marino's Sunshine Act claim is facially frivolous, his other causes of action are not so clearly without merit. Some agencies did not conduct any search for responsive records while others performed searches only partially responsive to Mr. Marino's requests. Unable to find that the defending federal agencies conducted adequate searches, reasonably calculated to identify responsive records, the Court will deny without prejudice the motion to dismiss, or in the alternative, motion for summary judgment.


A. Background

Mr. Marino is imprisoned at Federal Correctional Institution (FCI) McDowell in West Virginia, Compl. [Dkt. 1] at 2, after convictions for racketeering, conspiracy to murder in aid of racketeering, and drug possession in the District Court for the District of Massachusetts, see United States v. Marino, 277 F.3d 11 (1st Cir. 2002); Mot. to Dismiss or Summ. J. [Dkt. 14] at 2-3. A repeat litigator, [1] Mr. Marino now sues several components of DOJ (collectively, Defendants) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, Privacy Act of 1974, id. § 552a, and Sunshine Act, id. § 552b. Specifically, Mr. Marino names: the Office of the Attorney General (OAG); the Criminal Division of the Department of Justice (CRIM); the Executive Office of the U.S. Attorneys (EOUSA); the Federal Bureau of Investigation (FBI); the Office of Enforcement Operations (OEO); the Office of Information and Policy (OIP); the U.S. Attorney's Office for the District of Columbia (USAO-DC); and the U.S. Attorney's Office for the District of Massachusetts (USAO-MA). Compl. at 2. Mr. Marino seeks records that allegedly demonstrate his actual and legal innocence of the "Salemme attempted murder, " racketeering convictions, and drug convictions, including records from meetings allegedly held by Assistant U.S. Attorneys (AUSAs) to achieve a "potential out of court settlement" that "facilitated FRAUD [sic] upon the Federal Grand Jury [sic]." Id. at 3-4. Mr. Marino claims that these records show "egregious governmental misconduct, due process violations, ... governmental impediments, " and violations of his rights to exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963). Id. at 3.

B. Mr. Marino's Records Requests

From 2011 to 2012, Mr. Marino sent numerous letters to Defendants requesting multiple records. Defendants designated these letters as follows: FOIA Request No. CRM-201200185P; FOIA Request No. 2011-2085; FOIA Request No. 2011-2968; FOIA Request No. 2011-2969; and FOIA Request No. 2011-3089. Many of the requests overlapped and nearly all sought at least one of the following types of records: sealed documents from United States v. Salemme, 91 F.Supp.2d 141 (D. Mass. 1999), rev'd in part, United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000), a criminal matter not involving Mr. Marino; FBI recordings regarding the Salemme attempted murder; verdict forms from Mr. Marino's criminal prosecutions; and records relating to Mr. Marino generally.

1. FOIA Request No. CRM-201200185P

On March 2, 2012, CRIM received a letter from Mr. Marino dated February 20, 2012. Defs.' Statement of Facts [14-1] ¶¶ 1-2; Courter Decl. [Dkt. 14-4] ¶¶ 5-6. As relevant, the letter requested:

any & all records, documents, memoranda, statements, reports, & other information or data in whatever form, maintained by your agency that relates to and/or makes reference to [Mr. Marino], directly or indirectly, more specifically [Mr. Marino], requests the (Under Seal Documents) described in U.S. v. Salemme, 91 F.Supp.2d [sic] pages 267-269 (D.Mass.1999) [sic] which shows that FBI publicly known informants Angelo "Sonny" Mercurio, James "Whitey" Bulger & Stephen "The Rifleman" Flemmi called Salemme to a location in June 16, 1989 to be shot while all three informants worked for convicted FBI agent Connolly.

Courter Decl., Ex. 1 [Dkt. 14-4] at 1. Mr. Marino also asked that any queries for responsive documents include his aliases, which he listed as "Vincent Michael Portalla" and "Gigi." Id. at 2. These requests were made pursuant to FOIA and the Privacy Act. CRIM construed the letter as a request for records relating to Mr. Marino's District Court for the District of Massachusetts criminal matter, Case No. 4:97-40009. Defs.' Statement of Facts ¶ 1; Courter Decl. ¶ 5. CRIM designated the letter as FOIA Request No. CRM-201200185P and performed a search for responsive records using the terms "Marino, Vincent Michael" and "Marino, Vincent." Defs.' Statement of Facts ¶¶ 1, 4; Courter Decl. ¶¶ 5, 7. No responsive records were found and CRIM notified Mr. Marino of the search results on May 14, 2012. Defs.' Statement of Facts ¶ 5; Courter Decl. ¶ 8; see id., Ex. 2 [Dkt. 14-4].

After the instant litigation commenced, CRIM conducted additional searches for records responsive to Mr. Marino's February 20, 2012 request. CRIM searched the records of the Electronic Surveillance Unit of OEO and the Organized Crime and Gang Section (OCGS). Defs.' Statement of Facts ¶ 6; Courter Decl. ¶ 9. Using Mr. Marino's last name and, this time, his aliases, CRIM searched one of ESU's electronic databases and one of its shared computer drives. Defs.' Statement of Facts ¶¶ 7-8, 10; Courter Decl. ¶¶ 10-11, 13-14. Similarly, CRIM searched OCGS's four electronic databases with a query using the search terms "Vincent Marino, " "Vincent Michael Marino, " "Vincent Portalla, " "Vincent Michael Portalla, " and "Gigi." Defs.' Statement of Facts ¶¶ 11-13; Courter Decl. ¶¶ 15-17. It also searched the physical files of ESU and OCGC. Defs.' Statement of Facts ¶¶ 9, 14; Courter Decl. ¶¶ 12, 18. In these searches, CRIM located a total of seventeen pages of records. Defs.' Statement of Facts ¶¶ 8, 10, 13; Courter Decl. ¶¶ 11, 14, 17.

CRIM processed the responsive records found in its second search, and on March 15, 2013, sent a letter to Mr. Marino informing him of the search results. Defs.' Statement of Facts ¶ 15; Courter Decl. ¶ 19; see id., Ex. 3 [Dkt. 14-4]. Out of the seventeen pages of responsive records, CRIM released to Mr. Marino one page in full and seven pages in part, and withheld nine pages in full pursuant to FOIA Exemptions 5, 6, and 7(C). Courter Decl. ¶ 19.

2. Records Request to FBI

Mr. Marino sent a letter to FBI dated February 20, 2012. Defs.' Statement of Facts ¶ 33; Hardy Decl. [14-3] ¶ 5. As with his request to CRIM, Mr. Marino relied on FOIA and the Privacy Act to ask for the sealed documents from the Salemme prosecution and records generally relating to Mr. Marino and his aliases. Hardy Decl., Ex. A [Dkt. 14-3] at 2-3. Construing Mr. Marino's letter only as a request for sealed court documents, FBI responded on April 12, 2012, that it did not maintain the records Mr. Marino sought. FBI advised Mr. Marino to direct his requests for sealed records to EOUSA. Defs.' Statement of Facts ¶ 34; see Hardy Decl., Ex. B [Dkt. 14-3].

3. FOIA Request Nos. 2011-2085, 2011-2968, 2011-2969, XXXX-XXXX

Over the course of approximately ten months, OAG, OEO, FBI, EOUSA, USAO-MA, USAO-DC, [2] and OIP received a combined total of ten letters from Mr. Marino. EOUSA grouped these letters under four FOIA numbers. The letters dated May 16, 2011, June 16, 2011, June 22, 2011, July 6, 2011, July 7, 2011, and March 6, 2012, were designated as FOIA Request No. 2011-2085. The letter dated May 31, 2011, and the two letters both dated July 12, 2011, were designated as FOIA Request No. 2011-3089. Finally, EOUSA split the letter dated August 15, ...

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