Trentadue v. FBI, et al Doc. 1007577143 ORAL ARGUMENT NOT REQUESTED Case No. 08-4207 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT JESSE C. TRENTADUE, Plaintiff/ Appellee, vs. FEDERAL BUREAU OF INVESTIGATION and FEDERAL BUREAU OF INVESTIGATIONS’ OKLAHOMA CITY FIELD OFFICE, Defendants/Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH HONORABLE DALE A. KIMBALL PLAINTIFF-APPELLEE’S OPENING BRIEF Notice Of Attachment: This Brief Has An Attachment _____________________________ Jesse C. Trentadue, Esq., USB #4961 8 East Broadway, Suite 200 Salt Lake City, Utah 841111 Telephone: (801) 532-7300 E-mail: [email protected] Pro Se Plaintiff/Appellee Dockets.Justia.com TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................. iii STATEMENT OF RELATED CASES ....................................... v I. INTRODUCTION ............................................ 1 II. RECORD ON APPEAL ....................................... 3 III. STATEMENT OF JURISDICTION .............................. 3 IV. STATEMENT OF ISSUES AND STANDARD OF REVIEW ......... 4 V. NATURE OF THE CASE ..................................... 6 VI. COURSE OF PROCEEDINGS BELOW .......................... 8 VII. STATEMENT OF FACTS .................................... 16 A. Morris Dees: The SPLC Warned The FBI About An Attack .... 16 B. Roger Moore: Was A Protected Witness .................... 19 C. McVeigh: Moore Provided Weapons And Explosives .......... 22 D. Richard Guthrie: McCarthy Took Out The Murrah Building .... 24 E. Secret Service: Money From Bank Robberies Financed The Bombing ............................................. 27 F. BATF: Strassmeir Threatened To Blow Up Federal Buildings . 28 G. SPLC: McVeigh Called Strassmeir At Elohim City For Help In The Bombing ................................... 32 H. Congress: McCarthy Is Also A Protected Witness ............ 35 I. Thomas: We Are Going To Hit One Of Their Buildings ........ 38 VIII. SUMMARY OF ARGUMENT ................................. 39 i IX. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ISSUING THE DISCOVERY ORDER AND NEITHER DID THE DISTRICT COURT ABUSE ITS DISCRETION BY REFUSING TO RECONSIDER AND VACATE THAT ORDER . 41 X. AT A MINIMUM, NICHOLS AND HAMMER WILL PROVIDE EVIDENCE ESTABLISHING ROGER MOORE AS THE KEY FBI-SPLC INFORMANT ON THE RUN UP TO THE BOMBING, WHICH MEANS THAT THERE ARE OTHER DOCUMENTS THAT HAVE NOT BEEN PRODUCED ............ 43 XI. SECURITY IS NOT A LEGITIMATE CONCERN ................. 46 XII. CONCLUSION ............................................. 48 XIII. ORAL ARGUMENT NOT REQUESTED ........................ 48 XIV. CERTIFICATE OF SERVICE ................................. 49 XV. CERTIFICATE OF COMPLIANCE ............................. 50 XVI. ADDENDUM .............................................. 51 ii TABLE OF AUTHORITIES CASES: Anderson v. Dept. of Health & Human Services, 3 F.3d 1383 (10th Cir. 1993) ........ 12 Anderson v. Dept. of Health & Human Services, 907 F.2d 936 (10th Cir. 1990) .... 16, 45 Costo v. United States, 922 F.2d 302 (6th Cir. 1990) ............................. 5 Cressler v. Neuenschwander , 170 F.R.D. 20 (D. Kan. 1996) ......................... 46 Giza v. Sec’y of Health, Educ. & Welfare, 628 F.2d 748 (1st Cir. 1980) ............. 41 Goland v. Central Intelligence Agency, 697 F.2d 339 (D.C. Cir. 1978) ............. 45 Info. Acquisitions Corp. v. Dept. of Justice, 444 F.Supp. 458 (D.C. 1978) ........... 41 Kurz-Kasch v. Dept. of Defense, 113 F.R.D. 147 (S.D. Ohio 1986) ............ 12, 13 Lissner v. United States Customs Service, 241 F.3d 1220 (9th Cir. 2001). .......... 16 Murphy v. Fed. Bureau of Investigation, 490 F.Supp. 1134 (D.C. 1980) ............ 41 Niren v. INS , 103 F.R.D. 10 (Or. 1984) ........................................ 41 NLRB v. Robins Tire & Rubber Co., 437 U.S. 214 (1978) ........................... 40 Properties Unlimited, Inc. Realtors v. Sendant Mobility Serv., 384 F.3d 917 (7th Cir. 2004) ................................................ 4 Reagan v. Bankers Trust Co., 863 F.Supp. 1511 (D.Utah 1994). .................... 5, 43 Servants of the Paraclete v. John Does, 204 F.3d 1005 (10th Cir. 2000) ............... 5, 42 Swint v. Chambers County Comm’n , 514 U.S. 35 (1995) ............................ 4 Travelers Indemnity Co. v. Accurate Autobody, Inc., 340 F.3d 1118 (10th Cir. 2003). 5 Turner v. Safley, 482 U.S. 78 (1987). ....................................... 48 iii United States v. Sandoval, 29 F.3d 537 (10th Cir. 1994) .......................... 5 Weisberg v. Dept. of Justice, 543 F.2d 308 (D.C. Cir. 1976) .................. 41, 42 Weisberg v. Webster, 749 F.2d 864 (D.C. Cir. 1984) ............................... 4 Windsor Shirt CO. V. New Jersey Nat. Bank, 793 F. Supp. 589 (E.D. Pa. 1992) ........... 46 Van Strum v. U.S. E.P.A., 680 F.Supp. 349 (D. Or. 1987) ........................... 41 Weir v. Propst, 915 F.2d 283 (7th Cir. 1990) ................................... 4 STATUTES AND RULES: Fed. R. App. Pro. 10, 11 and 30 .............................................. 5 Fed. R. Civ. Pro. 26(b)(1) ................................................. 15 Fed. R. Civ. Pro. 27 ..................................................... 15 10th Cir. Rules 10, 11 and 30. ................................................ 5 43 U.S.C. § 1997e(f) .................................................... 48 OTHER AUTHORITY: 37A Am.Jur. 2nd Freedom of Information Acts §§ 503-508. ..................... 41 Executive Order 13392, 70 F.R. 75373 ...................................... 40 iv STATEMENT OF RELATED CASES There are no related cases. v I. INTRODUCTION On April 19, 2009, it will have been 14 years since 168 people, including 19 toddlers, were killed in the attack upon the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma. It was and still remains the single greatest act of domestic terrorism committed in the United States during the 20th Century. It is also a matter of great public interest, especially the federal governments’ possible prior knowledge of that attack as the result of an informant-sting operation conducted by the FBI and the Southern Poverty Law Center (“SPLC”). This joint undercover operation targeted a white supremacist paramilitary training complex in southeastern Oklahoma named “Elohim City,” and a group of bank robbers known as the “Mid-West Bank Robbery Gang” and/or “Aryan Republican Army” or “ARA,” whose members frequented Elohim City. Timothy J. McVeigh, who was convicted and executed for his role in the Bombing, was a frequent visitor to Elohim City and part time member of the bank robber gang.1 Plaintiff-Appellee, Jesse C. Trentadue, filed a request under the Freedom of Information Act (“FOIA”) for documents-records involving this failed sting operation that 1 This joint operation may have been part of an FBI undercover operation known as “PATCON,” which was an acronym for “Patriot Conspiracy.” PATCON involved the use of undercover operatives to infiltrate-monitor-disrupt the activities of groups the FBI considered to by anti-government. 1 eventually led to the attack upon the Murrah Building. That FOIA Request was filed with the Federal Bureau of Investigation and the Federal Bureau of Investigation’s Oklahoma City Field Office (collectively “FBI Defendants”). Rather than stepping forward and meeting their FOIA obligations in accordance with the law, FBI Defendants’ first response was to claim that there were no documents involving that informant operation. FBI Defendants, however, did not know that Plaintiff had two documents, teletypes, from FBI Director Louis Freeh discussing this operation, which documents Plaintiff subsequently filed with the District Court. Those submissions to the District Court resulted in an Order requiring FBI Defendants to conduct a manual search for additional documents. That search eventually led to the production of almost 150 pages of FBI-SPLC informant documents. The informant documents provided to Plaintiff were redacted. However, unredacted copies were submitted to the District Court for in camera review. Those unredacted FBI-SPLC informant documents, combined with other evidence of FBI Defendants bad faith in responding to Plaintiff’s FOIA request, resulted in a “Discovery Order” from the District Court allowing Plaintiff to depose McVeigh’s accomplice in the bombing, Terry Lynn Nichols, and death row inmate David Paul Hammer, with whom McVeigh had shared the full story of the Bombing, including the presence and activities of informants. The Discovery Order also allowed Plaintiff to videotape those 2 depositions. This appeal is from that Discovery Order and the District Court’s subsequent Order denying FBI Defendants’ Motion to Reconsider the Discovery Order. II. RECORD ON APPEAL The parties are filing a “Joint Appendix.” The evidence and other materials contained in the Joint Appendix will be cited by the reference “J.A.” followed by the page number on which the document or other evidence appears within the Joint Appendix. That Joint Appendix, however, is not complete. Neither is the record complete for purposes of this appeal. Despite Plaintiff’s request that they be made part of the record on appeal, FBI Defendants have not submitted to this Court the unredacted documents provided to the District Court for in camera review.2 III. STATEMENT OF JURISDICTION Plaintiff concurs with FBI Defendant’s Statement of Jurisdiction with respect to this Court’s authority to review the District Court’s Order denying the Motion to