United States District Court, District of Columbia
S. CHUTKAN UNITED STATES DISTRICT JUDGE
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.
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).
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
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).
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).
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.
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