United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 2004 Decided January 11, 2005
No. 03-5192
Ramon Lopez
Appellant
v.
Department of Justice,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 99cv01722)
Sidney A. Rosenzweig, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on the
brief was Robert S. Litt.
Ramon Lopez, pro se, was on the brief for appellant.
Michael J. Ryan, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Robin M. Earnest, Assistant U.S. Attorney.
R. Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
Before: GINSBURG, Chief Judge, and SENTELLE and
RANDOLPH, Circuit Judges.
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Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE , Circuit Judge: Ramon Lopez appeals the
District Court’s decision in which the court held that he was not
entitled to certain documents related to a grand jury
investigation under the Freedom of Information Act (“FOIA”).
Specifically, the court held that the documents requested by
Lopez fell within the third class of documents exempted from
FOIA: documents protected by other statutes (in this case,
documents covered by Rule 6(e) of the Federal Rules of
Criminal Procedure). See Memorandum Opinion, Lopez v. U.S.
Dep’t of Justice, No. 99-1722, slip op. at 4-5 (D.D.C. filed Mar.
19, 2001) (“Memo Order”). See also Memorandum Denying
Reconsideration, Lopez v. U.S. Dep’t of Justice, No. 99-1722,
slip op. at 6-7 (D.D.C. filed Jan. 21, 2003) (“Denial of
Reconsideration”). Lopez contends that the documents
requested do not fall under the purview of Rule 6(e), and
therefore are not covered by FOIA Exemption 3. Because we
agree with the District Court’s conclusion that dates on which
grand jury subpoenas and requests for production, writs of
testificandum and witness debriefings are all items that
inherently reveal secret matters occurring before the grand jury,
we affirm in part the court’s grant of summary judgment. But
because dates on which prosecutors interviewed prospective
grand jury witnesses do not inherently reveal secret matters
occurring before a grand jury, and because the Government has
failed to demonstrate how disclosing the date of any particular
witness interview would reveal a protected aspect of the grand
jury, we remand this case to the District Court, instructing it to
order the Department of Justice to release the dates on which it
interviewed grand jury witnesses prior to testimony.
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I. Background
On June 19, 1990, Appellant Lopez (“Lopez”) was charged
in District Court with possession of cocaine with intent to
distribute, and conspiracy to possess cocaine. In September
1991 he was tried and convicted on all counts; he was sentenced
in January of the following year. Throughout the trial and
sentencing, Lopez was represented by A. Scott Miller
(“Miller”). With new counsel, Lopez appealed. The conviction
was affirmed.
Lopez later learned that the grand jury investigating him
had also investigated Miller. On January 12, 1994, Miller
pleaded guilty to money laundering and other charges. Lopez
moved to vacate his own sentence pursuant to 28 U.S.C. § 2255
(permitting collateral attack on convictions).
Beginning in 1997, Lopez began to file FOIA requests
seeking information regarding the grand jury investigation from
the U.S. Department of Justice (“DOJ”). In June 1999, Lopez
commenced, pro se, a civil action under FOIA, 5 U.S.C. § 552,
and the Privacy Act of 1974, 5 U.S.C. § 552a, to secure the
documents requested. On February 23, 2000, in response to an
order of the District Court, Lopez clarified and limited the scope
of his requests. The requests were revised over the course of the
litigation. By the time the District Court issued its Memo Order,
they had taken the following form:
1) “All reports of investigations (or segregable portions)
during civil or criminal investigations of A. Scott Miller
from 1988 through January 13, 1994, including dated
handwritten notes, interviews and surveillance by agents of
the United States Customs Service.” [“Request One”]
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2) “Copies of any and all subpoenas, or segregable portions
of it, writs of testificandum, or requests for production of
federal or state prisoners before Grand Jury 91-7 or any
other grand jury investigating Miller as a target or subject,
or for interviews or debriefings.” [“Request Two”]
3) “Copies of the Report of Investigation closing the first
investigation against Miller, opening the second
investigation against him, and a report as a result of an
interview between Miller and Customs agents in or around
May, 1991, which resulted in a false statement charge
against Miller.” [“Request Three”]
Lopez, Memo Order, slip op. at 3.
With regard to Request Two, Lopez requested that the
District Court order the DOJ to produce a Vaughn index of the
documents being withheld. See Vaughn v. Rosen, 484 F.2d 820,
827-29 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). He
made that request in April 2000; two months later, in his June
12, 2000 opposition to DOJ’s motion to dismiss the case, he
asserted that he was not “requesting any name of witness [sic],
or jurors . . . but the dates that those documents were issued.”
Memorandum of Points and Authorities in Opposition to
Defendant’s Motion to Dismiss or in the Alternative for
Summary Jugment [sic], and in Support of Plaintiff’s Cross
Motion for Summary Judgment at 12 (emphasis in original).
In support of its motion for summary judgment, the DOJ
cited as a reason for its failure to disclose the sought-after
documents: those matters were “specifically exempted from
disclosure by statute.” 5 U.S.C. § 552(b)(3) (“Exemption 3”).
The “statute” invoked here was Rule 6(e) of the Federal Rules
of Criminal Procedure (secrecy of grand jury proceedings). In
March 2001, the District Court granted DOJ’s motion for
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summary judgment regarding the request for grand jury
information, per Exemption 3. The court did not address the
issue of segregability of dates or other information. Lopez filed
a motion for reconsideration, in which he agreed that
disclosure of the subpoenas and writs of testificandum,
which would reveal the identities of the witness before the
grand jury is prohibited under Rule 6(e) . . . . However,
disclosure of segregable portions of those documents, e.g.,
the dates of the documents were prepared, issued, etc., are
not prohibit [sic], does not violated [sic] the core of the
Rule.
Plaintiff’s Motion for Reconsideration, Clarification of March
19, 2001 Order at 4 (emphasis in original).
On March 11, 2002, the Court granted Lopez’s renewed
motion requiring DOJ to file an unredacted Vaughn index listing
the dates of 15 reports of investigation, but not dates on which
subpoenas were issued. The DOJ filed the Vaughn index a few
weeks later.
Finally, in January 2003, the District Court granted the DOJ
summary judgment with respect to FOIA Requests One and
Three, per FOIA’s Exemption 7(C) (unwarranted invasion of
personal privacy). Denial of Reconsideration at 14 (citing 5
U.S.C. § 552(b)(7)(C)).
Lopez timely filed this appeal. On March 29, 2004, this
Court granted the DOJ’s motion for summary affirmance on the
issues other than the dates in the grand jury documents. Lopez
v. U.S. Dep’t of Justice, No. 03-5192 (D.C. Cir. Mar. 29, 2004)
(order granting partial summary affirmance). Attorneys
Rosenzweig and Litt were appointed amicus curiae to present
arguments in favor of Lopez’s position. Id.
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II. Analysis
The standard governing a grant of summary judgment in
favor of an agency that claims it has fully discharged its
FOIA disclosure obligations is well established. . . . [T]he
agency must show, viewing the facts in the light most
favorable to the requester, that there is no genuine issue of
material fact. . . . We review the issue de novo on the
district court record.
Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994).
This Court recognized long ago that requests for documents
related to grand jury investigations implicate FOIA’s third
exemption, because Rule 6(e) of the Federal Rules of Criminal
Procedure prohibits government attorneys and others from
“disclos[ing] a matter occurring before the grand jury.” FED. R.
CRIM . P. 6(e)(2)(B). This is not to say that Rule 6(e) draws “a
veil of secrecy . . . over all matters occurring in the world that
happen to be investigated by a grand jury.” SEC v. Dresser
Industries, Inc., 628 F.2d 1368, 1382 (D.C. Cir.) (en banc), cert.
denied, 449 U.S. 993 (1980). Quite the contrary: “[t]here is no
per se rule against disclosure of any and all information which
has reached the grand jury chambers.” Senate of the
Commonwealth of Puerto Rico v. DOJ, 823 F.2d 574, 582 (D.C.
Cir. 1987) (“SCPR”). The relevant inquiry for this Court is
whether disclosure of the information requested would “tend to
reveal some secret aspect of the grand jury’s investigation, such
matters as the identities of witnesses or jurors, the substance of
testimony, the strategy or direction of the investigation, the
deliberations or questions of jurors, and the like.” Id. (internal
quotation marks omitted).
This Court need not evaluate the revelatory characteristics
of every individual document in each case before it. As the
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Supreme Court suggested, “categorical decisions may be
appropriate and individual circumstances disregarded when a
case fits into a genus in which the balance characteristically tips
in one direction.” DOJ v. Reporters Committee for the Freedom
of the Press, 489 U.S. 749, 776 (1989). See also Maydak v.
DOJ, 218 F.3d 760, 766 (D.C. Cir. 2000). We find such a
categorical approach appropriate on the facts before us in this
case. Lopez has requested a specific set of classes of
documents: grand jury subpoenas, writs of testificandum,
requests for production, pre-testimonial interviews, and post-
testimonial debriefings. We examine each of those classes of
documents in turn.
Grand Jury Subpoenas: This Court has recognized that the
term “grand jury subpoena” is in some respects a misnomer,
because the grand jury itself does not decide whether to issue the
subpoena; the prosecuting attorney does. Doe v. DiGenova, 779
F.2d 74, 80 & n.11 (D.C. Cir. 1985). But the grand jury’s
limited role in the formal issuance of a grand jury subpoena is
immaterial to the question before us today. On this point there
can be no dispute: The date on which a grand jury subpoena was
issued inherently tends to “reveal” the “direction of the
investigation.” The prosecutor may issue the subpoena without
the knowledge of the grand jury, but his authority to do so is
grounded in the grand jury investigation, not the prosecutor’s
own inquiry. Federal prosecutors have no authority to issue
grand jury subpoenas independent of the grand jury. See SARA
S U N BEALE ET AL., 1 GRAND JURY LAW AND PRACTICE 6-11 to
6-12 & n.13 (2d ed. 2004). See also Durbin v. United States,
221 F.2d 520, 522 (D.C. Cir. 1954) (“It was clearly an improper
use of the District Court’s process for the Assistant United
States Attorney to issue a grand jury subpoena for the purpose
of conducting his own inquisition.”). DiGenova may have noted
that the grand jury itself does not decide to issue the subpoena,
but it also noted that “a grand jury subpoena gets its name from
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the intended use of the testimony.” 779 F.2d at 80 n.11
(emphasis added). Because the evidence and testimony
subpoenaed is that which is intended to be used by the grand
jury, the subpoenas and the dates on which they are issued tend
to reveal the direction of the relevant investigation. All grand
jury subpoenas (be they ad testificandum or duces tecum) and
therefore their dates of issuance fall within FOIA’s third
exemption.
“Writs of Testificandum” and Requests for Production of
Prisoners: Lopez’s Request Two is ambiguous to the extent that
it does not specify whether “writs of testificandum” refers to the
aforementioned “subpoenas ad testificandum” or “writs of
habeas corpus ad testificandum.” But because the following
item in Request Two is “requests for production of federal or
state prisoners,” the ambiguity need not be resolved here.
Writs of habeas corpus ad testificandum, when submitted by
federal prosecutors to secure the presence of prisoners before the
grand jury, are governed by the same rules that govern the
issuance of subpoenas: Rule 17 of the Federal Rules of Criminal
Procedure. U.S. v. Garrard, 83 F.3d 889, 893 (7th Cir. 1996);
U.S. v. Rinchack, 820 F.2d 1557, 1567 & n.13 (11th Cir. 1987).
When these writs are submitted by prosecutors, they are meant
to serve the same purposes as subpoenas; they simply obligate
a different party (i.e., the custodian of the would-be witness
rather than the would-be witness himself). Garrard, 83 F.3d at
893. For that reason, the foregoing discussion of subpoenas
applies to writs of habeas corpus ad testificandum and “requests
for production of federal or state prisoners” submitted by the
prosecutor for the purpose of securing testimony before the
grand jury, and any such writs and requests fall within FOIA’s
third exemption.
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Preliminary Witness Interviews: Prosecutors often
interview witnesses in advance of grand jury testimony. In
considering whether the dates of such interviews tend to reveal
the inner workings of a grand jury, we must “differentiate
between . . . [the prosecutor’s] own investigation, and . . . a
grand jury’s investigation, a distinction of the utmost
significance.” In re Sealed Case No. 99-3091, 192 F.3d 995,
1002 (D.C. Cir. 1999) (emphasis in original). A prosecutor may
interview a potential grand jury witness either as part of a
“screening” process in advance of actual grand jury testimony,
or as part of the prosecution’s own investigation. See United
States v. Burke, 856 F.2d 1492, 1495 (11th Cir. 1988), cert.
denied sub nom. Greeson v. United States, 492 U.S. 908 (1989).
Because a preliminary interview may serve the distinct
interests of the prosecutor qua prosecutor or of the prosecutor
qua “grand jury facilitator,” the date of a preliminary interview
does not on its face convey any information about “some secret
aspect of the grand jury’s investigation.” In many cases,
revealing the dates of preliminary interviews conducted for the
purposes of “screening” potential witnesses may in fact “tend to
reveal some secret aspect of the grand jury,” but we cannot, on
the record before this Court, make such a finding on a
categorical basis. The Government has failed to meet its burden
of demonstrating some “nexus between disclosure and
revelation of a protected aspect of the grand jury’s
investigation.” SCPR, 823 F.2d at 584. Unless the Government
can demonstrate that disclosure of the date of a particular
preliminary interview would tend to reveal the inner workings
of the grand jury investigation, that date is not exempt from
disclosure under FOIA’s third exemption.
Subsequent Witness Debriefings: Just as preliminary
interviews may serve the purposes of the prosecutor’s own
investigation or the purposes of the prosecutor’s role with
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respect to the grand jury, post-testimony debriefings may also
serve dual purposes. But pre-testimony interviews and post-
testimony debriefings differ in one material respect: a post-
testimony debriefing of a witness inherently indicates that the
witness did, in fact, testify before the grand jury. In this respect,
a post-testimony debriefing is much more akin to a grand jury
subpoena than to a pre-testimony interview: just as a subpoena
indicates that the grand jury wants a witness to testify, a
debriefing indicates that the grand jury wanted a witness to
testify (and that the witness did, in fact, testify). In either case,
there is a nexus between disclosure of the information and
revelation of the grand jury’s strategy or direction in the past.
Therefore, just as we hold that the issuance dates of grand jury
subpoenas fall within the third exemption to FOIA, we hold that
the dates of post-testimony witness debriefings categorically fall
within the third exemption to FOIA.
III. Conclusion
Because we hold that FOIA’s Exemption 3, incorporating
Rule 6(e) of the Federal Rules of Criminal Procedure,
categorically exempts (i) issuance dates of grand jury
subpoenas, (ii) writs of habeas corpus ad testificandum and any
other type of request of production of prisoners for the purposes
of grand jury testimony, and (iii) the dates of post-testimony
debriefings of grand jury witnesses, we affirm in part the
District Court’s grant of summary judgment. But because we
hold that the exemption does not include all preliminary
interviews conducted by prosecutors supervising grand jury
investigations, and because the Government has failed to prove
an exemption should be given in the circumstances of this case,
we reverse in part the District Court’s grant of summary
judgment and remand the case for further proceedings consistent
with this opinion. We instruct the District Court, upon remand,
to order the Government to release the dates it interviewed grand
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jury witnesses.