United States District Court, District of Columbia
GLADY KESSLER, District Judge.
Plaintiff Griselle Marino ("Plaintiff" or "Marino") brings this action against the United States Drug Enforcement Administration ("DEA" or "the Government") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Marino seeks documents related to a Government cooperator who testified against her deceased ex-husband, Carlos Marino, at his trial for drug conspiracy in 1997.
This matter is before the Court on the DEA's Renewed Motion for Summary Judgment [Dkt. No. 65]. Upon consideration of the Motion, Opposition, Reply, Sur-reply, oral argument at the Motion Hearing of February 5, 2014, and the entire record herein, and for the reasons stated below, the Government's Motion is denied.
A. Factual Background
1. The Criminal Prosecution
In 1997, Carlos Marino was convicted of narcotics conspiracy in the Northern District of Florida and sentenced to 365 months in prison. The Government's primary witness at his trial was a co-conspirator named Jose Everth Lopez ("Lopez"). Lopez testified that he and Carlos Marino worked for an international drug importation and distribution ring known as the "Company, " which was run out of Bogota, Columbia by a man named Pastor Parafan-Homen. Pl.'s Opp'n Ex. B (Trial Tr.) at 16, 20 [Dkt. No. 66-5 at ECF pp. 6-7].
Lopez stated that his job was to transport cocaine in flat-bed trailer trucks from Texas to South Florida, where he was paid by Carlos Marino. Id . at 16, 20-27, 31 [Dkt. No. 66-5 at ECF pp. 6-15]. Lopez further testified that Carlos Marino was the "banker" or "money man" of the organization, and that whenever money was spent by the conspiracy - whether for drivers, vehicles, warehouse space, or other expenses - it came from Marino. Id . at 33, 36, 39, 191-92 [Dkt. No. 66-5 at ECF pp. 3-4, 18, 21-22]; see also Pl.'s Opp'n Ex. F (Order, Report and Recommendation on § 2255 petition in United States v. Marino, 3:97cr84/RV (N.D. Fla. Oct. 4, 2002)) ("Report & Recommendation") at 6 [Dkt. No. 66-9].
The Government relied heavily on Lopez's testimony in its opening and closing remarks and at sentencing. As Magistrate Judge M. Casey Rodgers later observed on collateral review, "Lopez was the government's key witness at trial and was the primary witness who testified about defendant's involvement in a conspiracy that actually moved cocaine." Pl.'s Opp'n Ex. F (Report and Recommendation) at 7 [Dkt. No. 66-9]. Although evidence from an unrelated investigation revealed that Carlos Marino had been engaged in separate discussions with a confidential informant named Edwin Rivas about importing cocaine into the United States through the Miami airport, this plan was never carried out, and there was little evidence linking it to Parafan-Homen's group. See id. ("CI Rivas testified about discussions he had with the defendant about cocaine importation, but the importation plans were never realized."),
At sentencing, the trial Judge relied on Lopez's testimony to conclude that Carlos Marino was a "station manager in Miami" who "transfer[red] operations from Mexico and Houston and other parts of the United States, including a number of major cities, east coast and west coast." See Pl.'s Opp'n Ex. B (Sentencing Tr.) at 11:20-12:24 [Dkt. No. 66-5 at ECF pp. 29-30]. This finding provided the basis for the Judge to impose a three-point sentencing enhancement under the Sentencing Guidelines. Id.
Lopez later admitted at the 1998 trial of Parafan-Homen in the Eastern District of New York that he lied multiple times at Carlos Marino's trial. Specifically, at Marino's trial, Lopez purported to be a low-level participant recruited to work for the Company in late 1995, whereas he later admitted that he had been involved in the conspiracy since 1988, had met personally with Parafan-Homen on several occasions, and had attended a small meeting of high-level conspirators in Bogota, Columbia in 1994 to discuss reorganizing the criminal enterprise. See Pl.'s Opp'n Ex. C at 3623-3627, 3665-66. (trial transcript in United States v. Pastor Parafan-Homen, CR 95-0722) [Dkt. No. 66-6].
2. Collateral Proceedings
After his conviction was affirmed on direct appeal in 1999, Carlos Marino filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. See Pl.'s Opp'n Ex. A (Joint Appendix) at 271 [Dkt. No. 66-2]. He argued, inter alia, that the Government committed misconduct by failing to correct Lopez's perjured testimony at his trial. Id . at 291-98 [Dkt. No. 66-3]. He further asserted that the Government violated its obligations under Brady v. Maryland , 373 U.S. 83 (1963), by suppressing notes of pre-trial interviews with Lopez, which could have been used to impeach Lopez at trial and demonstrate that his involvement in the conspiracy was more extensive than he depicted. Id . at 277-282, 284-90 [Dkt. No. 66-2]. Carlos Marino also claimed that the documents suppressed by the Government would have shown that he (Carlos Marino) was not involved in any of the operations of the conspiracy outside of Miami, and that it was Lopez, not Marino, who was a manager of the Parafen-Homen organization. Id . at 296-298 [Dkt. No. 66-3].
On October 4, 2002, Magistrate Judge Rodgers issued his Report and Recommendation recommending that Carlos Marino's motion for collateral relief be denied. While acknowledging that "Lopez's testimony at the Parafan trial, in particular that detailing his historical involvement in the conspiracy, was 'vastly different' from that given at the defendant's trial, " he determined that the "differences did not absolve defendant of any responsibility or involvement in the conspiracy." Pl.'s Opp'n Ex. F (Report and Recommendation) at 53 [Dkt. No. 66-9]. He further reasoned that "the jury was on notice that Lopez was not the most credible of witnesses" because there was evidence at trial "that Lopez had lied on more than one occasion to government agents[.]" Id . at 52. He then concluded that the falsehoods in Lopez's testimony did not warrant collateral relief because they either were "not central to the jury's assessment of defendant's role in the offense, or were unknown to the government at the time of defendant's trial." Id . at 51.
3. The FOIA Request
In May 2004, Carlos Marino, acting pro se, submitted a FOIA request to the DEA to obtain "a copy of all documents indexed under No. 3049901 of the [DEA's] Narcotics and Dangerous Drug Information System (NADDIS)." Letter from Marino to DEA FOIA/PA Unit, dated May 4, 2004 ("FOIA Request") [Dkt. No. 5-1, Ex. A]. NADDIS numbers are unique multi-digit numbers that the DEA assigns to the subjects of its investigations. They permit the DEA to "retrieve  investigative reports and information" from its investigative database regarding a subject of interest without searching by name. See First Supplemental Decl. of Katherine L. Myrick ("First Supp. Myrick Decl.") ¶ 6 [Dkt. No. 65-2]. It is undisputed that Carlos Marino suspected that 3049901 was the NADDIS number assigned to Lopez, and therefore, his request effectively sought the DEA's investigative file on Lopez.
The DEA categorically denied Carlos Marino's request. Its response took the form of a "Glomar response, " in which an agency states that it "can neither confirm nor deny" the existence of responsive records on the grounds that to do so would reveal information exempt from disclosure under FOIA.
The DEA reasoned that disclosing even the existence of responsive documents would invade the privacy interest of the individual assigned to NADDIS number 3049901 by revealing that he or she had been the subject of a DEA investigation. The agency therefore informed Carlos Marino that it would not process his request unless he provided either proof of death of the individual assigned to NADDIS number 3049901, or an original notarized privacy waiver. See Undated Letter from DEA to Marino [Dkt. No. 5-1, Ex. D].
On August 9, 2004, Carlos Marino filed an administrative appeal with the Department of Justice's ("DOJ"'s) Office of Information and Privacy ("OIP"), arguing that "no privacy interest would be invaded by disclosing the information" he sought because, as he pointed out in his original request, that information had already been put into the public domain at his trial and the trial of Parafan-Homen. Letter from Carlos Marino to OIP, dated Aug. 9, 2004, at 2 [Dkt. No. 5-1, Ex. E]. On January 18, 2005, the OIP affirmed the denial of the request, again stating that to confirm or deny the existence of records "could reasonably be expected to constitute an unwarranted invasion of personal privacy" under Exemption 7(C). Letter from OIP to Carlos Marino, dated Jan. 18, 2005 [Dkt. No. 5-1, Ex. G].
B. Procedural Background
On July 12, 2006, Carlos Marino filed this action seeking judicial review of the DEA's decision. [Dkt. No. 1]. On October 5, 2006, the DEA filed its first Motion for Summary Judgment. [Dkt. No. 5]. On March 16, 2007, Judge Ricardo Urbina, the District Court Judge previously assigned to this case, summarily granted the Government's first Motion for Summary Judgment after Carlos Marino failed to file an opposition. Carlos Marino then moved for reconsideration on April 17, 2007 [Dkt. No. 12] and for relief from the judgment on November 30, 2009 [Dkt. No. 16]. Judge Urbina denied both motions on August 5, 2010. See Marino v. DEA , 729 F.Supp.2d 237 (D.D.C. 2010) ("Marino I"). Judge Urbina reasoned that granting Carlos Marino relief from the judgment would be futile because he lacked any meritorious counterargument to the DEA's Glomar response. Id . at 243-245.
On appeal, the D.C. Circuit reversed. Marino v. DEA , 685 F.3d 1076 (D.C. Cir. 2012) ("Marino II"). The Court of Appeals emphasized that the only issue under consideration was the propriety of the agency's Glomar response, which is "an exception to the general rule that agencies must acknowledge the existence of information responsive to a FOIA request and provide specific, non-conclusory justifications for withholding that information." Id . at 1078 n.1 (citation and internal quotation marks omitted).
The Court of Appeals held that Carlos Marino's identification of public records linking NADDIS number 3049901 to Lopez presented a plausible basis to overcome the DEA's Glomar response because "[u]nder FOIA's public domain' exception, an agency may not rely on an otherwise valid [FOIA] exemption to justify withholding information that is already in the public domain.'" Id . at 1080 (citing Students Against Genocide v. Dep't of State , 257 F.3d 828, 836 (D.C. Cir. 2001)). The panel emphasized that, "[e]ven if later in litigation the DEA showed legitimate grounds to withhold every document in NADDIS file No. 3049901, Marino has raised a meritorious defense that the DEA's justification for refusing even to confirm the file's existence has been undermined by prior public disclosure." Id . at 1082.
On remand and reassignment of the case to this Judge, the Court granted relief from the prior judgment, denied the DEA's Motion for Summary Judgment, directed the DEA to file an Answer to the Complaint, and set a schedule for limited discovery. [Dkt. No. 49].
The DEA's Answer, filed on March 25, 2013, continued to assert Glomar as its sole substantive defense. [Dkt. No. 53]. However, on May 7, 2013, the Court held a status conference at which the Government informed the Court for the first time that it was not certain whether it would continue to pursue this defense. The parties also informed the Court at this time that Carlos Marino had recently been released from prison due to terminal cancer. The Court then set deadlines for the Government to decide on its Glomar response and for summary judgment briefing.
Thereafter, the Government continued to equivocate on its Glomar response before finally deciding, on May 29, 2013, that it would "no longer assert the Glomar response in this case." [Dkt. No. 62]. The DEA now concedes that its assignment of NADDIS number 3049901 to Lopez is a matter of public record, but has failed to ever explain why it took seven years and a ...