Trentadue v. FBI, et al

Filing 12

[9615519] Appellee's motion to waive Oral Argument. filed by Mr. Jesse C. Trentadue. Served on 11/30/2008. Manner of Service: US mail.

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 MOTION TO WAIVE ORAL ARGUMENT

Jesse C. Trentadue, Esq., USB #4961
8 East Broadway, Suite 200
Salt Lake City, Utah 841111
Telephone: [phone]
E-mail: [e-mail]

Pro Se Plaintiff/Appellee

On November 26, 2008, the Court granted Defendants/Appellants’ Unopposed
Motion to Expedite Appeal. In that Order, the Court also instructed the parties either to
file (1) a Request for Oral Argument that addresses the issues presented in Federal Rule
of Appellate Procedure 34 and Tenth Circuit Rule 34, or (2) a Motion to Waive Oral
Argument and submit the case on their Briefs. In response to that Order,
Plaintiff/Appellee hereby moves pursuant to Federal Rule of Appellate Procedure 34 and
Tenth Circuit Rule 34 to waive oral argument and submit this case on the Briefs.
Oral argument is unnecessary because the issue on appeal is neither novel nor a
difficult question of law. Rather, the issue is quite simple: Whether the District Court
abused its discretion in granting Plaintiff/Appellee’s Motion to depose several witnesses.
Those depositions were ordered by the District Court so that Plaintiff/Appellee could
probe the adequacy-lawfullness of Defendants/Appellants’ Response to
Plaintiff/Appellee’s request for documents under the “Freedom of Information Act”
(FOIA).
BACKGROUND
On Sunday, April 19, 2009, it will have been fourteen 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 remains the single greatest act of
domestic terrorism committed in the United States during the 20 th Century, and a matter
of great public interest, especially the federal governments prior knowledge of that attack
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as the result of a joint informant-sting operation being run by the FBI and the Southern
Poverty Law Center (“SPLC”).
This joint undercover operation was focused upon a white supremacist
paramilitary training complex in southeastern Oklahoma known as “Elohim City,” and a
group of bank robbers known as the “Mid-West bank Robbery Gang” whose members
frequented Elohim City along with Timothy J. McVeigh. Consequently Plaintiff filed a
request under FOIA for documents-records involving this failed sting operation that
eventually led to the attack upon the Murrah Building. That FOIA Request was filed with
Defendants/Appellants Federal Bureau of Investigation and the Federal Bureau of
Investigation’s Oklahoma City Field Office (collectively “FBI Defendants”).
However, 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. However, FBI Defendants were
eventually exposed as having failed to produce responsive documents, which prompted a
May 5, 2005, Order from the District Court requiring them to search specific files and
produce responsive documents and further providing that Plaintiff would be permitted to
conduct discovery if FBI Defendants failed to produce documents and/or records
responsive to the FOIA requests. A copy of that Order is attached hereto as Exhibit A.
After many months and further disputes between the parties, FBI Defendants
reluctantly produced almost 150 pages of SPLC informant documents which they had
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initially told the Court did not exist. Yet, not one of these documents had a date earlier
than April 19, 1995, even though the evidence before the District Court was undisputed
that this informant sting operation had been in existence since at least the fall of 1994.
Under the facts and history of this case, it is not surprising that the District Court granted
Plaintiff’s Motion to depose Terry Lynn Nichols and David Paul Hammer.1
In granting that Motion, the District Court stated:
The Court had also noted in its May 5, 2005 Order that ‘[u]pon Motion, the
Court will allow Plaintiff to conduct discovery should the FBI fail to
produce documents and/or records responsive to this FOIA request’ in light
of (1) the Court’s previous finding that the FBI’s original search was not
reasonably calculated to locate responsive documents; (2) the troubling
absence of documents to which other documents referred; and (3) the
information that Plaintiff has thus far discovered from Terry Lynn Nichols
and David Paul Hammer, the Court is persuaded that it continues to
maintain jurisdiction of this action and, furthermore, that by allowing the
requested depositions, Plaintiff may be better able to identify the existence
of other records responsive to his FOIA request that have not yet been
produced.
(Order p. 3; Doc. 113.) A copy of that Order is attached hereto as Exhibit B. It is this
Order
and the District Court’s subsequent Order denying FBI Defendants’ Motion to
Reconsider that are the subjects of this appeal. A copy of the Order denying FBI
Defendants’ Motion to Reconsider is attached hereto as Exhibit C.

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Nichols, of course, was the co-conspirator of Timothy McVeigh in the attack on
the Murrah Building. David Paul Hammer, on the other hand, spent almost two years on
death row with Timothy McVeigh who told Hammer all about the Murrah Building
Bombing, including the others involved.
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ISSUE ON APPEAL DOES NOT MERIT ORAL ARGUMENT
The issue presented for appellate review is much narrower than FBI Defendants
would have this Court believe. The issue is not whether discovery, including depositions,
are permitted under FOIA because they clearly are, especially when there is reason to
believe, as in this case, that the agency is either withholding records or did not conduct an
adequate “good faith” search for the materials. See Information Acquisition Corp. v.
Dept. of Justice, 444 F.Supp. 458 (D.C. 1978). See also Murphy v. Fed Bureau of
Investigation, 490 F.Supp. 1134 (D.C. 1980); Giza v. Sec’y of Health, Education and
Welfare, 628 F.2d 748, 751 (lst Cir. 1980); Niren v. INS, 103 F.R.D. 10 (D. Or. 1984);
Reisberg v. Dept. of Justice, 543 F.2d 308 (D.C. Cir. 1976). The discovery permitted
under FOIA also includes depositions designed to disclose the “malfeasance” of the
government. See Judicial Watch, Inc. v. United States Dept. of Commerce, 127 F.Supp.
2d 228 (D.C. 2000); Weisberg v. US DOJ, 627 F.2d 365 (D.C. Cir. 1980)(even after an
agency claims that it has “complied substantially” with its FOIA obligations discovery,
including depositions, it is permissible to test the veracity of that claim).
The issue for appellate review is whether the District Court abused its discretion in
authorizing Plaintiff to depose Nichols and Hammer to explore FBI Defendants’
malfeasance in responding to his FOIA Request? Under the record in this case, the
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District Court certainly did not abuse its discretion in granting Plaintiff’s Motion and in
subsequently denying FBI Defendants’ Motion to Reconsider. And it would be a waste of
judicial resources to require oral argument on this very narrow question.
DATED this 30 th day of November, 2008.
/s/ Jesse C. Trentadue
Jesse C. Trentadue
Pro Se Plaintiff/Appellee

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 30 th day of November, 2008, I caused a true and
correct copies of the foregoing PLAINTIFF/APPELLEE’S MOTION TO WAIVE
ORAL ARGUMENT to be served via first class United States mail, postage prepaid, and
by electronic process, upon:
Nicholas Bagley, Esq.
Assistant U.S. Attorney
950 Pennsylvania Ave. Rm. 7226
Washington, D.C. 20530

Carlie Christensen
Assistant United States Attorney
185 South State Street, Suite 400
Salt Lake City, UT. 84111

/s/ jesse c. trentadue

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CERTIFICATE OF COMPLIANCE
I further certify that (1) all required privacy redactions have been made and, with
the exception of those redactions, every document submitted in Digital Form or scanned
PDF format is an exact copy of the written document filed with the Clerk, and (2) the
digital submissions have been scanned with the most recent version of a commercial
virus scanning program (AVG Anti-Virus 7.1, updated April 10, 2006) and, according to
the program, are free of viruses.

/s/ jesse c. trentadue
Jesse C. Trentadue
Utah Bar Number #4961
Suitter Axland, PLLC
8 East Broadway, Suite 200
Salt Lake City, UT 84111
[phone]
[e-mail]
Pro se

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