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Bloomgarden v. United States Department of Justice

United States District Court, District of Columbia

March 2, 2016



ELLEN SEGAL HUVELLE United States District Judge

Howard Bloomgarden was tried and convicted in 2014 by a California jury of two counts of first-degree murder and two counts of kidnapping for extortion. (See Pl.’s Mot. for Summ. J. [ECF No. 17] at 9.) In his quest for a new trial, plaintiff asserts that Los Angeles County prosecutors used evidence that he was fraudulently induced to proffer, and that documents supporting this assertion may be in the possession of the Department of Justice (“DOJ”). (See Id. at 15 n.43, 34-36.) Plaintiff’s administrative demand for the documents-filed pursuant to DOJ’s Touhy regulations, 28 C.F.R. §§ 16.21 et seq.-was formally denied by DOJ in April 2015. (See Ex. VV to Pl.’s Mot. for Summ. J. [ECF No. 16] at 2.) Plaintiff has thus filed this suit under the Administrative Procedure Act, 5 U.S.C. § 706, arguing that the Touhy denial was both arbitrary and capricious and contrary to plaintiff’s constitutional rights under Brady v. Maryland, 373 U.S. 83 (1963). (See Compl. [ECF No. 1] ¶¶ 18-22.)

Before the Court is plaintiff’s response to a show cause order as to why judgment should not be entered against him. (See Pl.’s Show Cause Response [ECF No. 49].) The show cause was issued after this Court reviewed the documents that were in any way relevant to the Bloomgarden case-and also provided these same documents to the judge in the California proceedings-but neither court found that the documents constituted Brady material. In his response, plaintiff asks this Court to either (1) transmit the remaining undisclosed documents (approximately 1, 800 pages) to the California trial court, where they will be kept under seal pending appellate proceedings, or (2) administratively close this action to allow the Court to intervene in the event that the California courts seek additional documents in aid of the resolution of Bloomgarden’s motion for a new trial. (See Id. ¶¶ 8-9.) For the reasons that follow, the Court will not transfer the remaining documents, but it will administratively close the case and retain jurisdiction in the event that the California court wants to review additional documents.


Plaintiff seeks to acquire documents from the disciplinary file of a former Assistant United States Attorney (the “former AUSA”), who worked for DOJ in the Eastern District of New York (“EDNY”) in the mid-1990s. (See Pl.’s Mot. for Summ. J. at 1, 10-11.) The disciplinary file relates to his proposed termination, and it consists of a thirty-five page disciplinary letter (the “Letter”), a table of contents, and 3, 649 pages of supporting documentation. (See Def.’s Mot. for Summ. J. [ECF No. 29-1] at 5.)

Beginning in January 1995, the former AUSA was the lead prosecutor in a state / federal investigation into certain drug-related crimes, including the kidnapping and murder of Peter Kovach and Ted Gould, which eventually led to plaintiff accepting a guilty plea in the EDNY. (Pl.’s Mot. for Summ. J. at 1, 7.) During the course of that investigation, plaintiff agreed with the former AUSA to engage in proffer sessions with prosecutors, but only after being assured that L.A. County prosecutors were “on board” with the agreement. (See Id. at 2.) As such, the proffer agreements included both the AUSA’s signature and a “” symbol preceding the L.A. prosecutor’s name, to indicate that the AUSA had Dated: her behalf. (See Ex. G to Pl.’s Mot. for Summ. J.) In relevant part, the proffer agreements read:

(1) In any prosecution brought against [Bloomgarden] by the EDNY or the Los Angeles County District Attorney’s Office (“LACDA”), neither the EDNY nor the LACDA will offer into evidence in its case-in-chief or at sentencing any statements made by [Bloomgarden] at the meeting, except in a prosecution for false statements, obstruction of justice, or perjury.
(2) Notwithstanding item (1) above: (a) the EDNY and the LACDA may use information derived directly or indirectly from the meeting for the purpose of obtaining leads to other evidence that may be used in any prosecution and sentencing of [Bloomgarden] by the EDNY or the LACDA . . . .


Pursuant to these agreements, plaintiff offered inculpatory information, but later he was told that the former AUSA lacked authorization to sign the agreements on behalf of the L.A. County prosecutor. (See Pl.’s Mot. for Summ. J. at 3, 5.)[1] By this time, the former AUSA had been removed from plaintiff’s case, and the EDNY U.S. Attorney’s Office had initiated termination proceedings against him. (See Id. at 4.) Upon taking over the case, the former AUSA’s replacement repudiated any possible federal plea agreement or use of Bloomgarden as a cooperating witness. (Id.) Plaintiff’s expectation of a plea agreement with L.A. County prosecutors also never came to fruition-he ultimately pled guilty to federal charges and was later transferred to an L.A. County jail in 2005 to face charges in the Kovach-Gould murders. (See Id. at 4, 7-8.)

In pretrial proceedings in Los Angeles Superior Court before the Honorable Curtis Rappe, Bloomgarden successfully argued for suppression of his federal plea agreement and allocution, in which he had implicated himself in the Kovach-Gould murders. (See Id. at 7-8.) Judge Rappe found that Bloomgarden’s lawyers had rendered ineffective assistance of counsel by failing to apprise him of his continued exposure to state murder charges. (See Id. at 8; Ex. Y to Pl.’s Mot. for Summ. J. [ECF No. 12] at 872, 947-48.) He also argued that the former AUSA’s unauthorized signature warranted suppression of all evidence of prior bad acts that had been derived from the proffer sessions. (See Pl.’s Mot. for Summ. J. at 8; Ex. FF to Pl.’s Mot. for Summ. J. at 4-5.) Judge Rappe agreed in part, ruling that the prosecutors would be held to the terms of the agreements that prohibited direct use of plaintiff’s statements against him, just as if their predecessor’s signature had been authorized. (See id. at 17.) In other words, Judge Rappe assumed that the former AUSA signed without authorization, and he gave plaintiff the “benefit of [his] bargain” as a remedy. (See id.) Judge Rappe did leave open the possibility that greater relief might be warranted if Bloomgarden could show a “scam operation” or “nefarious plot” by state and federal prosecutors to defraud him.[2] (See Id. at 17-18.) He also suggested that if the AUSA’s disciplinary file showed that DOJ terminated him “because, voila, they had evidence that he just scammed Mr. Bloomgarden, ” then that could constitute Brady material. (See Id. at 16.)

Given that opening, plaintiff now presses his claims before this Court. He filed a FOIA case (12-cv-843) seeking the former AUSA’s disciplinary file, and this administrative Touhy action seeking “[a]ll favorable, impeaching, mitigating, or exculpatory materials . . . including under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny, contained within” the same file.[3] (See Ex. SS to Pl.’s Mot. for Summ. J.) In an accompanying letter, plaintiff clarified that he sought “evidence of prosecutorial misconduct or fraud on the part of state or federal prosecutors” who investigated him, for use in defending against the California charges.[4] (See id.) DOJ denied the Touhy request, citing the former AUSA’s right to privacy under the Federal Privacy Act of 1974, 5 U.S.C. § 552a, and noting that plaintiff had made “no showing that any statutory exceptions to the prohibition against disclosure apply here.” (See Ex. VV to Pl.’s Mot. for Summ. J.) In response, plaintiff has argued that this denial was both arbitrary and capricious and contrary to his constitutional rights under Brady. (See Pl.’s Mot. for Summ. J. at 33-39.)

The Court has already ruled that plaintiff can rely on Touhy procedures-and judicial review of any Touhy denial under the APA-to seek Brady material. (See Nov. 4, 2015 Hearing Tr. [ECF No. 37] at 11:2-10; see also Kasi v. Angelone, 300 F.3d 487, 506 (4th Cir. 2002) (“[T]he Administrative Procedure Act provides an appropriate procedure for judicial review of a decision by a federal agency to withhold investigation materials from a state criminal defendant, in which the state criminal defendant can proffer any perceived rights to the file materials under the constitutional principles set forth in Brady and its progeny.”). It also ruled that the Privacy Act would be no impediment to disclosure if plaintiff could show a constitutional right to the material under Brady. (See Nov. 4, 2015 Hearing Tr. at 10:14-15.) However, the Court also recognized the inherent difficulty of a federal court making Brady determinations with regard to a state trial over which it did not preside. (See id. at 6:22-7:3.)

The Court reviewed in camera the Letter, the table of contents, and any supporting exhibit that mentioned any of Bloomgarden’s co-defendants, but it did not find any documents that implicated Brady. (See Mar. 4, 2015 Hearing Tr. [ECF No. 45, Case No. 12-cv-843] at 37:21-22; Nov. 4, 2015 Hearing Tr. at 14:24-15:20; 16:24-17:10.) Nevertheless, out of an abundance of caution, the Court obtained the parties’ agreement to send all conceivably relevant documents to Judge Rappe under seal, so that he could determine whether any should be produced to Bloomgarden. (See Nov. 4, 2015 Hearing Tr. at 20:18-21:10; 24:16.) As part of that agreement, Judge Rappe would disclose to plaintiff any Brady material he identified (see Id. at 10:20-11:1), and in return, plaintiff agreed, among other things, to forego his remaining Touhy claims. (See Id. at 20:18-21:10; see also Pl.’s Show Cause Reply [ECF No. 51] ¶ 2). Plaintiff also agreed to seek return of the documents to this Court at the close of proceedings in California. (See Jan. 5, 2016 Hearing Tr. at 5:10-19.) Finally, when mailing the documents ...

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