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Dixon v. U.S. Department of Justice

United States District Court, District of Columbia

August 22, 2017

DANIEL DIXON, Plaintiff,



         This matter is before the court on Defendant U.S. Department of Justice's Motion for Summary Judgment, ECF No. 17. For the reasons discussed below, the court will GRANT the motion.

         I. BACKGROUND

         Plaintiff Daniel Steve Dixon is a California state prisoner. (Compl. ¶ 1). It appears that his criminal conviction was based in part on expert testimony regarding compositional bullet lead analysis (“CBLA”) introduced at Plaintiff's trial on February 18, 1981. (See id. ¶¶ 1, 7; Mem. of P. & A. in Support of Def. U.S. Dep't of Justice's Mot. for Summ. J., Decl. of David M. Hardy (“Hardy Decl.”), Ex. A at 1). The Federal Bureau of Investigation (“FBI”) “no longer conduct[s] the examination of bullet lead” since concerns arose “relating to the interpretation of the results of bullet lead examinations.” (Compl., Ex. A5, Attach. 2). Notwithstanding reports that CBLA is a “discredited and abandoned forensic technique, ” (id. ¶ 7), “it is the opinion of the FBI Laboratory that [FBI Examiner John Kilty] properly testified” at Plaintiff's trial as a rebuttal witness. (Id., Ex. C at 1).

         On December 29, 2015, Plaintiff submitted a request to the FBI under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, for “information and/or copies of the discredited and abandoned comparative (sometimes called compositional) bullet lead analysis (CBLA) which the [FBI] previously used prior to determining its unreliability in 2004.” (Hardy Decl., Ex. A at 1). Specifically, Plaintiff sought:

1. Comparative Bullet-Lead Analysis (CBLA) report, also known as Compositional Bullet-Lead Analysis by Rochelle F.H. Bohaty, March 2, 2009[;]
2. The FBI September 1, 2005 memorandum and/or letter regarding Discontinuation of Bullet Lead Examinations[;]
3. Information, e.g., letter or memorandums, from the prosecution's office (prisoners['] or ex-prisoners['] names redacted) who “used the bullet evidence at trial” to gain conviction, specifically of those charged with cases where CBLA was used, and later lead to reversal[;]
4. FBI letter to the state, city and county agencies, including district attorney offices[, ] declaring the FBI abandonment of CBLA use in approximately 2, 000 criminal cases, and;
5. Any further information relevant to my case, including information from the San Joaquin County District Attorney Office related to CBLA matters.

(Id., Ex. A at 1).

         Among the attachments to Plaintiff's FOIA request was a copy of the FBI's September 1, 2005 press release titled “FBI Laboratory Announces Discontinuation of Bullet Lead Examinations.” (Compl., Ex. A5, Attach. 2).

         The FBI divided Plaintiff's FOIA request into three parts and assigned each a tracking number. (See Hardy Decl. ¶¶ 7-10). Request Number 52976 corresponded with the third item in Plaintiff's request. (Id. ¶ 8). The FBI determined that Plaintiff's request for “information from the prosecution's office who used bullet evidence which later lead to a conviction reversal . . . did not contain enough descriptive information to permit a search of FBI records.” (Id.). It provided Plaintiff “[e]xamples of specific information which could assist” FBI staff in conducting a search, such as “names of specific individuals, [or the] date, time and locations of events, or a specific time frame and/or location.” (Id.). Further, it provided Plaintiff instructions for filing an administrative appeal of this determination. (See id., Ex. B at 1). Nothing in the record suggests that Plaintiff either perfected his request or pursued an administrative appeal.

         FOIPA Request Number 1343144-000 corresponded with the second and fourth items of Plaintiff's FOIA request for “Reports, Memorandum, etc[.] for CBLA letters of abandonment[.]” (Id. ¶ 9). FOIPA Request Number 1343107-001 corresponded to the fifth item of Plaintiff's FOIA request for information about himself. (Id. ¶ 16). An initial search of the Central Records System yielded five pages of records which the FBI released in full or in part on August 22, 2016. (Id. ¶ 17). With this release the FBI responded to the other items of his FOIA request:

In response to item 1 of your December 29, 2015 FOIA request, the requested document . . . is not a document prepared by the FBI nor has the FBI incorporated the report into its files . . . . In response to item 2 of your request, there are no additional records responsive to this item aside from the memo . . . you attach[ed] to your request. In regard to item 3, this item is too vague in order to permit the FBI to conduct a reasonable search for responsive records. In response to item 4, enclosed is a processed copy of the standard FBI form letter regarding the discontinuation of Bullet Lead Examinations that was sent to prosecutor's ...

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