Drug War Prisoners

CoUS Advisories for Attorneys, Defendants, Journalists and Media

This advisory, prepared for the Committee on Unjust Sentencing, is the first in a series describing new litigation tactics that may be utilized by defense attorneys, by pro se litigants who are on direct or collateral appeals, and by journalists and media seeking access to agency records. Discussed in the series are novel methods of a. obtaining records of confidential informants who testified at trial; b. identifying government misconduct that may have occurred involving the informant; c. identifying government improprieties during trial or the appeal process; and d. in certain cases where collateral relief is still available, using the records for purposes of appeal. Finally, the recent -- and rapidly evolving -- matter of Alleyne v. United States (No. 11-9335)(S.Ct. June 17, 2013) and sequelae will be discussed, concerning the requirement that any fact that increases the mandatory minimum must be proven to a jury. These advisories will be revised periodically as case law develops on these issues.

CoUS Advisory 1 -- Background on Obtaining Informant Records

Prosecutors not infrequently are disinclined to release informant records that could undermine the informant's credibility and testimony at trial. Federal agencies, in response to Freedom of Information Act (FOIA) requests for records of confidential informants, require either a waiver signed by the informant or proof of death of the individual. Prior to 2011, those defendants whose cases involved an informant's testimony had little or no recourse through FOIA in acquiring agency records of the informant's interviews, agency assessment of the informant's background and reliability, and records of deactivations for cause including unsatisfactory behavior.

Importantly, a FOIA section -- 5 USC 552(c)(2) -- requires that agencies release records of an informant who has been "officially confirmed" by a federal agency. However, since the enactment of FOIA in 1976 and through 2011, no federal agency or court had determined the means by which a domestic criminal informant may be officially confirmed.

In 2011, as a matter of first impression in any circuit, the 9th Circuit in Pickard v. DOJ, 653 F.3d 782 (July 27, 2011) concluded that when an informant testifies at trial and their identity as an informant is purposely elicited by a prosecutor or confirmed by an agent, then the individual has been "officially confirmed" by the agency as an informant in accord with 5 USC 552(c)(2) and their records must be produced. This decision broadly affects all cases in which attorneys and defendants seek to obtain through FOIA the informant's records. The 9th Circuit remanded Pickard v. DOJ to the district court with instructions that DEA release an index of the records of career informant Gordon Todd Skinner.

However, DEA refused for over a year to comply with the 9th Circuit's order until -- only upon threat of contempt and sanctions -- it provided a partial index that still was non-compliant with 9th Circuit standards. The matter of Pickard v. DOJ continues, as federal agencies react to the outcomes of the decision.

Meanwhile, Pickard v. DOJ was cited as one basis for a similar decision in the D.C. district court to release, in response to a FOIA request by media, the records of the deceased and presumed FBI informant Ernest Withers in the investigation of Martin Luther King. In Memphis Publishing v. FBI, 879 F. Supp. 1 (D.D.C. January 31, 2013), the agency released voluminous records but inadvertently included an abbreviation within one line that indicated the individual was an FBI informant. The district court nevertheless concluded FBI had "officially confirmed" the individual as an informant in accord with 5 USC 552(c)(2). The proceedings in Pickard v. DOJ and Memphis Publishing v. FBI are helpful not only to defense attorneys and incarcerated pro se litigants but also to journalists and media who seek records in a broad spectrum of criminal cases involving common domestic criminal informants, excluding foreign intelligence sources and foreign terrorism cases.

Recently, in Cobar v. DOJ, 2013 U.S. Dist. LX 80456 (D.D.C. June 6, 2013), in response to a FOIA request to DEA by an incarcerated defendant seeking records of the informant who testified at his trial, the D.C. district court adopted Pickard v. DOJ and ordered DEA to produce the requested documents.

However, one district court in Louisiana has attempted to narrow the scope of Pickard v. DOJ by interpreting the 9th Circuit's ruling as limiting the records accessible through FOIA only to those requesters in whose trial the informant testified. In Rahim v. FBI, 2013 U.S. Dist. LX 71818 (May 31, 2013), records were requested of the activities of FBI informant Brandon Darby involving the Hurricane Katrina relief organization Common Ground Relief in New Orleans. The requester had included records of Darby's testimony at the domestic terrorism trial of David McKay concerning the 2008 Republican National Convention. However, it appears the matter of Rahim v. FBI was incorrectly decided. Official confirmation in public proceedings makes records available to any requester, as demonstrated in Memphis Publishing v. FBI, where a news agency sought records. The 9th Circuit in Pickard v. DOJ did not limit the scope of the parties who may obtain records after an informant has been officially confirmed by government actions.

In accord with Pickard v. DOJ, Memphis Publishing v. FBI, and Cobar v. DOJ, those attorneys, defendants, journalists and media representatives who seek informant records in a criminal case where the informant testified may obtain those records by submitting a FOIA request to the relevant agency, citing the aforementioned cases and including as exhibits transcripts of the informant's testimony and/or statements of the prosecutor and agent(s) who publicly confirmed at trial the informant's activities. FOIA requesters may contact CoUS with questions on any issues involving the FOIA process.

Procedures for Requesting Informant Records from Agencies

1. To initiate the process, using DEA as an example, those seeking records should request by letter "any and all records pertaining to (the informant's full name), including but not limited to all records in the Confidential Source System (CSS)." It is not necessary to provide any reason for the request. FOIA request letters should be mailed by certified mail to the Drug Enforcement Administration, FOIA/PA Unit (SARO), 8701 Morrisette Drive, Springfield, VA 22152-1080. To verify for subsequent legal proceedings that DEA received the request, a copy of the letter should be faxed to DEA at 202.307.8556. Copies of the certified mail receipt, letter, and fax should be retained for litigation.

2. Upon denial by DEA, an appeal should be made within 60 days to the DOJ Office of Information and Privacy, 1425 NYAV Building, N.W. Suite 11050, Washington, D.C. 20530-0001, stating simply "I hereby appeal the DEA decision in FOIA Request Number (enter tracking number)." As with the request to DEA, the appeal to OIP also should be faxed to OIP at 202.514.1009 and the mailing and fax records retained.

3. Upon denial by OIP, the requester has exhausted the requisite administrative remedies and is prepared to litigate in federal district court. Requesters who have exhausted administrative remedies are requested to contact CoUS for further suggestions on filing the complaint in federal court.

Records of Deceased Parties

DEA's records on deceased parties routinely are released. The requester is required to submit proof of death, e.g. in the form of an obituary or news article. In that voluminous printed records may be costly, the records can be requested to be provided by DEA in CD format.

Incarcerated individuals who are serving lengthy sentences under the mandatory minimums are encouraged to investigate the circumstances of their incarceration, as well as the background of federal informants whose testimony supported their conviction. Please contact CoUS with any questions.


Prepared by: William Leonard Pickard



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