United States District Court, D. Columbia.
[Copyrighted Material Omitted]
DAVID WILSON, Plaintiff, Pro se, Pine Knot, KY.
For UNITED STATES DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, Defendants: Timothy E. Broomhead, LEAD ATTORNEY, Kevin Michael Laden, U.S. ATTORNEY'S OFFICE, Washington, DC.
JAMES E. BOASBERG, United States District Judge.
Plaintiff David Wilson claims that he is an innocent man. Convicted in 2007 of aiding and abetting a double murder, Wilson is currently serving a term of imprisonment that will last for over forty years. While in prison, he penned a Freedom of Information Act request for evidence that he believes will help to exonerate him. In particular, he asked for a recording of a conversation between a " Confidential Source" and the principal perpetrator of the murders, a man named Antonio Roberson. The existence of the tape -- albeit not its contents -- was disclosed at Wilson's trial. So, Wilson says, was the name of the " Confidential Source" on the tape, whom he identified in his FOIA request as Bobby Capies, a known informant who testified against him.
In answer to Wilson's request for the tape, the Department of Justice issued a so-called " Glomar response," refusing to confirm or deny the recording's existence. DOJ cited privacy concerns relating to Roberson and (if he happened to be the " Source" ) Capies. Wilson then brought this suit, and DOJ has now moved for summary judgment, contending that its actions comply with FOIA's demands.
The Court disagrees. It is already public knowledge that Roberson was captured on the recording, thanks to DOJ's own prior disclosures. It is also public knowledge -- again, thanks to DOJ's disclosures -- that Capies served as an informant in Wilson's case. As a result, DOJ has already vitiated any privacy interest that Roberson and Capies might have had in concealing the tape's existence. The Department must, at the very least, confirm or deny that it has a copy of the requested recording. The Court therefore denies summary judgment and will allow Wilson's case to proceed.
Testimony at Wilson's trial -- apparently believed by the jury -- painted the following picture: During the 1990s, the Congress Park neighborhood in Southeast Washington was the site of a sometimes-bloody turf war between rival gangs. See United States v. Wilson (Wilson I), 720 F.Supp.2d 51, 56 (D.D.C. 2010) (denying motions for judgment of acquittal and new trial). Wilson was allegedly a member of one of those gangs, the Congress Park Crew. See id. Early one morning in August 1998, Wilson and two of his associates were in the neighborhood and spotted a man named Ronnie Middleton sitting in his Ford Bronco. See id. Middleton, a member of the rival 1-5 Mob, had purportedly shot one of Wilson's friends some years before. See id. Wilson and his two companions left the scene to pick up a gun. See id. As Wilson drove the crew back past Middleton's Bronco, one of Wilson's associates, Roberson, opened fire on the
car. See id. The shots killed Middleton and his companion Sabrina Bradley, who was also in the vehicle. See id.
By the time of Wilson's trial in 2007, both Roberson and his other associate, Antoine Draine, were dead. See Jim McElhatton, D.C. Man Gets More than 40 Years in Congress Park Killings, Wash. Times, Mar. 13, 2011, available at http://goo.gl/ttrCen. Wilson thus stood alone to answer for the killings. He was convicted of the double homicide, among other offenses, on the theory that he was the driver and thus aided and abetted the murders. See United States v. Wilson (Wilson II), 766 F.Supp.2d 106, 107 (D.D.C. 2011) (denying motion for new trial). His conviction was based in part on the testimony of Bobby Capies, whom the Government identified as an informant in at least one submission on the trial docket. See Wilson I,
720 F.Supp.2d at 62; Reply, Exh. 1 (Custodial Interview of Bobby Capies) at 1. At trial, Capies testified that he had spoken with Wilson, who had admitted to driving the car out of which Roberson fired the fatal shots. See Wilson I, 720 F.Supp.2d at 62.
Despite his conviction, Wilson staunchly maintains his innocence. In 2008, he moved for a retrial, partially based on the Government's withholding of information that could have been used to impeach Capies. See id. at 68-69. That motion was denied. See id. at 70-71. He moved for a retrial yet again in 2010, when one of his fellow prisoners submitted an affidavit claiming that he -- not Wilson -- drove the car on the night of the murders. Wilson II, 766 F.Supp.2d at 107. That motion, too, was denied. See id. at 108-09.
Wilson still believes that the Government is concealing evidence that would prove his innocence. Specifically, he claims that DOJ possesses a recording of a conversation between Capies and Roberson in which the two discuss the Congress Park murders. See Surreply at 2-4. Wilson believes that Roberson names his accomplices on the tape and that the recording will prove that he was not one of them. See id. at 3-4.
The existence of the tape is not a matter of mere speculation. Rather, two documents disclosed in the wake of Wilson's trial indicate that such a record is likely to have been created. The first document describes a May 1999 police interview with Capies. See Capies Interview at 1-3. In the interview, he states that he spoke with Roberson and Draine on the phone the day after the killings. See id. at 2. On that call, Roberson bragged that he had used his Glock to shoot up Middleton's Bronco. See id. Draine also boasted that he had been involved with the Middleton-Bradley shooting, and, apparently, Wilson's name was mentioned. See id. The second document, which was compiled a month later, describes a recording made by the Government and a " Confidential Source." Reply, Exh. 2 (Controlled Operation Involving a Confidential Source) at 1. In that document, the Government notes that the Source -- just like Capies -- allegedly spoke with Roberson around the date of the murder. See id. During that conversation, the Source confided, Roberson admitted to shooting up Middleton and Bradley's Bronco with a Glock nine millimeter -- just as he had to Capies. See id. The Source noted that Roberson still bragged about the killings, and that it would not be difficult to record him talking about the shooting. See id. The Source was then wired up and did manage to capture a brief conversation with Roberson about the murders on tape. See id. at 1-2.
Although it is not crystal clear, Wilson has reached the logical conclusion that Capies was the Source mentioned in the second document. Armed with such reasonable
belief, in January 2013, he filed a FOIA request with the Executive Office for U.S. Attorneys requesting a recording of the conversation that he believes took place between Capies and Roberson in June 1999. See Compl., ¶ 1. He claimed that the recording was Brady information that the Government should have disclosed during his trial, and, in any event, that the recording would help to exonerate him. See, e.g., id., ¶ ¶ 2-5, 7; see also Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (requiring government to disclose " evidence favorable to an accused ...