United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, District Judge.
This coram nobis matter is before the Court on petitioner Keith Baranski's Motion to Compel the Bureau of Alcohol, Tobacco, Firearms and Explosive to Produce Records Responsive to a Subpoena, and for Sanctions. The United States opposes the motion and it is fully briefed. For the following reasons, petitioner's motion to compel will be granted and his motion for sanctions will be denied without prejudice.
The background of this action has been set forth in detail previously and will not be repeated here. See, e.g., Memorandum and Order of Oct. 7, 2014 (Doc. 177). At some point, petitioner made a Freedom of Information Act ("FOIA") request to the ATF and obtained "only a portion of Reports of Investigations that had been prepared by ATF agents." Pet.'s Mem. Supp. Mot. Compel at 3. After a FOIA administrative appeal, ATF claimed to have released all but two ATF Reports of Investigations. After unsuccessfully attempting to obtain ATF materials through discovery directed to the United States Attorney's Office in St. Louis, petitioner issued a subpoena duces tecum to the Custodian of Records of the ATF's St. Louis Field Office III ("ATF-STL") on January 3, 2013. Attached to the subpoena was a list of the categories of records and documents to be produced, and a U.S. Department of Justice Certification of Identity form completed by James M. Carmi authorizing the release of documents to petitioner and his attorney. The following records and documents were sought:
1) Interviews, proffers, and communications with, or concerning, James Michael Carmi (DOB 10/18/1961).
2) Notes, Reports Of Investigations, memoranda, letters, movement/transfer documents (including requests made to the U.S. Marshal's Service), photographs, and any audio or video recordings, concerning James Michael Carmi (DOB 10/18/1961) from October 17, 2000 through December 31, 2009.
3) Interviews, proffers, and communications with, or concerning, Keith Byron Baranski (DOB 12/5/70).
4) Notes, Reports Of Investigations, memoranda, letters, photographs, and any audio or video recordings, concerning Keith Byron Baranski (aka Keith Bryan Baranski) (DOB 12/5/70) from October 17, 2000 through December 31, 2009.
Pet.'s Ex. 1, Subpoena in a Civil Case (Doc. 155-3).
Petitioner's motion to compel seeks an order requiring the ATF-STL to produce for his inspection "all material identified by the subpoena." Mot. Compel at 1. Petitioner contends that "ATF is selectively disclosing the responsive material to hamper discovery and prevent disclosure of embarrassing tactics employed in securing and upholding [his] conviction." Mem. Supp. Mot. Compel at 1. Petitioner also contends that ATF "systematically destroyed crucial exculpatory and impeachment evidence" while his prior action under 28 U.S.C. § 2255 was pending, "under the guise of the agency's records retention policy." Id. at 2.
Petitioner states that the ATF's initial response to his subpoena was that all responsive records had been produced in response to his FOIA requests. After discussions between counsel, the U.S. Attorney's Office ("USAO") released approximately 7, 500 pages of ATF material on May 29, 2013. Petitioner's review of this material "pointed to other material that could not be located within the disclosed records, and led to the conclusion that the disclosure was incomplete." Id. at 5. Petitioner informed the USAO that disclosure was incomplete and Assistant U.S. Attorney Matthew Drake advised petitioner that he would contact ATF and make an inquiry. In the meantime, petitioner obtained portions of James Carmi's case file from Carmi's former defense attorneys, which included discovery material released by the government prior to petitioner's prosecution in 2000 or 2001. Included in this material were numerous ATF undercover surveillance audio and videotapes of Carmi's investigation prepared by government agents including Carmi's ATF case agent, Michael Johnson. Petitioner claims these surveillance recordings contain exculpatory and impeachment material that were never furnished to his defense team in the underlying criminal case.
Petitioner asserts that on November 26, 2013, AUSA Drake represented that the USAO did not know of any audio or video recordings made of either Carmi or Baranski's investigations, but that if such audio and video recordings did exist of Carmi's investigation, Baranski should already possess them through the original discovery production from the government in 2002, as those recordings would clearly be Jencks material and exculpatory evidence to which Baranski was entitled. Petitioner confirmed with his former criminal defense team, however, that "nearly all of the material" was never provided to them. Despite further conferences with AUSA Drake, petitioner was informed on April 14, 2014 that ATF had released all material subject to discovery and no additional records would be forthcoming. On April 25, 2014, AUSA Drake advised petitioner's counsel that he had spoken with ATF Agent Johnson, who was in charge of both the Carmi and Baranski investigations, and Agent Johnson stated he was unaware of any video recordings of Carmi's ATF investigation and none could be located. Agent Johnson also stated any pertinent information that may have been contained in any records was "thoroughly detailed" in the ATF Reports of Investigations. Later, petitioner was informed that surveillance recording had been destroyed in accordance with ATF's Document Retention Policy. In May 2014, AUSA Drake confirmed that ATF had no remaining audio or video evidence from the Carmi or Baranski cases, but there was some "video from search warrants" that would be provided to petitioner.
With respect to ATF-STL's destruction of records, petitioner states that one of the records produced was an ATF Destruction Report dated July 22, 2008 that covers some of the audio/video surveillance recordings never disclosed to his defense team, which reflects that the materials were destroyed while his petition for writ of certiorari on his § 2255 motion was pending before the U.S. Supreme Court. In support of his assertion that other ATF records have not been disclosed, petitioner states that discovery has revealed Carmi had at least seven and as many as ten proffer interviews with the government, but ATF-STL has only produced four Reports of Investigations from interviews with Carmi. Petitioner also identifies a Secret Service letter of August 30, 2002 that he asserts was clearly exculpatory evidence and exculpatory impeachment evidence, which also references prior communications yet to be disclosed. Petitioner filed with the Court copies of recordings he received from Carmi's former defense attorney, which he asserts contain "extensive material exculpatory impeachment evidence" that were never produced to petitioner's criminal defense team, and further asserts that the recordings are "only a few of many, believed to have been created and/or possessed by ATF." Id. at 9.
A significant portion of petitioner's Memorandum in Support argues the merits of his claims and seeks to show how the allegedly withheld documents are material and exculpatory, as opposed to focusing on the issue of whether documents and records exist and ...