United States District Court, W.D. Missouri, Western Division
BRYAN E. SHEPPARD, Plaintiff,
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
ORDER AND OPINION (1) DENYING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT, AND (2) DENYING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT
D. SMITH, SENIOR JUDGE.
are Defendant United States Department of Justice's
Motion for Summary Judgment (Doc. #18), and Plaintiff Bryan
Sheppard's Cross Motion for Summary Judgment (Doc. #27).
For the following reasons, both motions are denied without
The 1988 Fires
November 1988, two fires occurred in southeast Kansas City.
The firefighters who arrived on the scene extinguished the
first fire. A second fire began in a trailer containing 25,
000 pounds of ammonium nitrate and fuel oil, which were used
by a construction company to blast through bedrock. As the
firefighters began trying to extinguish the second fire, the
trailer exploded, immediately killing all six firefighters. A
fire truck parked next to the trailer disintegrated. State
and federal investigations followed. But the state
investigation was later abandoned, and the federal
investigation became dormant.
1994, the federal investigation was revived. In 1996, Darlene
Edwards, Richard Brown, Earl “Skip” Sheppard,
George “Frank” Sheppard, and Bryan Sheppard were
indicted in this Court on arson charges for the 1988 fires.
United States v. Sheppard, No. 96-CR-0085-FJG (W.D.
Mo.) (“the Sheppard criminal case”). The trial
began on January 13, 1997. During trial, the government did
not present eyewitness testimony or physical evidence
directly linking the defendants to the fires. Each defendant
maintained his or her innocence throughout the trial. On
February 26, 1997, the jury found all defendants guilty of
aiding and abetting an act of arson which resulted in the
deaths of six firefighters. Each defendant was sentenced to
The Star's Articles
in 2007 and continuing through 2009, The Kansas City
Star (“the Star”) newspaper
published a series of investigative articles alleging
government misconduct in the Sheppard criminal case. Doc.
#21-1, at 26. According to the Department of Justice
(“the DOJ”), the Star's
“articles asserted that several government witnesses
lied at trial, ” “government representatives used
coercive tactics…to fabricate inculpatory evidence or
to dissuade witnesses from testifying about exculpatory
evidence, ” and “suppressed and/or
newly-discovered evidence indicated that persons other than
the convicted defendants carried out the arson.”
Id. at 26.
The Criminal Division's Investigation
2008, the United States Attorney for the Western District of
Missouri asked the DOJ to review the Star's
allegations “to avoid any appearance of
partiality.” Id. The Office of the Deputy
Attorney General assigned the DOJ's Criminal Division to
review the Star's allegations. Id. The
Criminal Division assembled a team, which included a Criminal
Division prosecutor and a Special Agent from the DOJ's
Office of Inspector General, to conduct the investigation
(hereinafter, “the review team”). Id. at
30. A Special Agent from the Bureau of Alcohol, Tobacco, and
Firearms (“ATF”) “was assigned to act as a
liaison with the ATF, providing assistance in obtaining
relevant reports and information.” Id.
2008 to 2011, the review team “conducted an extensive
investigation.” Id. The review team
interviewed individuals identified in the Star's
articles as well as other civilians and law enforcement
officers. Id. They “secured the files of the
assigned AUSA Paul Becker, and reviewed those materials along
with the 4, 000 page trial transcript.” Id.
They also “located three tapes in [John] Barchers'
ATF file, which appear to be conversations between Barchers
[who was a witness for the government] and [REDACTED].”
Id. at 37 n.8. The review team “was unable to
determine whether the tapes and/or transcripts were provided
to the defense, and…was unable to interview Barchers
before his death.” Id. The review team
determined a written statement from Barchers, which recounted
admissions by Frank Sheppard, Earl Sheppard and [REDACTED]
and statements by [REDACTED] that she thought Frank Sheppard
and Earl Sheppard “had something to do with the
explosion, ” and his grand jury testimony were provided
in discovery. Id. Finally, the review team obtained
and reviewed several post-trial affidavits by individuals who
recanted their trial testimonies or asserted they had other
information related to the arson. Id. at 31.
conclusion of the investigation, a twenty-page
memorandum (hereinafter, “the
memorandum”) was sent to Lanny Breuer, Assistant
Attorney General, from Kevin Carwile, Chief, Capital Case
Unit; James Trusty, Acting Chief, Organized Crime and Gang
Section; and John Cox, Trial Attorney, Organized Crime and
Gang Section. Id. at 25. The memorandum went
“through” Jason Weinstein, Deputy Assistant
Attorney General. Id. According to the memorandum,
“[t]he review was not, and was not intended to be, a
re-investigation of the arsons.” Id. at 26.
“Rather, the review was intended to address the
Star's assertions that the defendants may have
legitimate claims of actual innocence.” Id.
memorandum was divided into five sections. Id. at
26-27, 31-44. Section One addressed the Star's
allegation that five individuals allegedly gave false trial
testimony. Id. at 31-32. The review team interviewed
two witnesses, although their names and identifying
information were redacted from the memorandum. Id.
The review team reported both witnesses confirmed they
testified truthfully. Id. at 31. The memorandum
indicated one witness recanted when talking with the
Star because the witness feared retaliation and did
it “out of sympathy for [REDACTED].” Id.
at 32. The review team noted there was some information it
did “not consider material to claims of actual
innocence” that was not provided to defense counsel.
Id. That information was redacted from the
Section Two, the review team discussed the allegations of
undue pressure or coercion. Id. at 33-37. The
Star reported the government, and more specifically,
Special Agent True, attempted to coerce twelve individuals
who did not testify, allegedly for the purpose of persuading
them to falsely implicate the defendants or dissuade them
from exculpating the defendants. Id. at 33. The
review team interviewed eight of the twelve individuals, but
the identities of those interviewed were redacted in the
memorandum. Id. at 33-37. The review team also
“interviewed numerous current and former law
enforcement officers who had worked at various times on the
investigation - all of whom reported that neither Special
Agent True nor AUSA Becker placed undue pressure on witnesses
or otherwise strayed from the bounds of professional conduct
during the investigation and prosecution.” Id.
at 33. The review team stated that “[o]f the four
individuals who purported to offer facts underlying their
claims of coercion -[REDACTED] - three provided stories that
were contradicted by the particular agents involved, as well
as by statements of other agents and officers involved, as
well as by statements of other agents and officers about the
manner in which the investigation was conducted.”
Id. at 36. One individual “provided an account
that [was] unsupported and simply unbelievable.”
Id. Another individual “was so lacking in
credibility that [REDACTED].” Id. at 36.
Three discussed exculpatory evidence that was allegedly
withheld. Id. at 37-40. The memorandum stated the
Star reported the government may have ignored or
suppressed information favorable to the defense provided by
Debra Cearley, Ella Hutton, Patti Smith, and another
individual whose name was redacted. Id. at 37. The
review team interviewed some of the individuals, but the
number and identities of the witnesses interviewed was
redacted. Id. The review team concluded some
information “does not appear to have been produced
prior to trial.” Id.
Section Four's heading was partially redacted (i.e.,
“Allegations Regarding Information [REDACTED]”),
the memorandum's introduction, which summarized each
section, indicated this section referred to the Star
uncovering evidence. Id. at 27. The summary
continues, “[t]he review team found that the government
disclosed substantial potentially exculpatory information
prior to trial, including information suggesting that
[REDACTED] others may have been involved in the
arson….” Id. Nevertheless, the review
team “concluded...the information provided by these
witnesses would not have called into question the
defendants' guilt of the crimes charged.”
Id. at 41.
Section Five, the review team stated that, during its
investigation, it “identified several newly-developed
pieces of information that were not previously known to the
prosecution.” Id. at 43. According to the
review team, “this newly-developed information suggests
that [REDACTED] may have been involved in the arsons in
addition to - and not to the exclusion of - the
defendants.” Id. The review team determined
this information “would not have called into question
the defendants' guilt of the crimes charged.”
The DOJ's FOIA/PA Unit
DOJ's Freedom of Information Act and Privacy Act Unit
(“FOIA/PA Unit”) is responsible for processing
FOIA and Privacy Act requests seeking information from the
Criminal Division. Doc. #21-1, at 1. When initiating a search
for records responsive to a FOIA request, the FOIA/PA
Unit's “standard practice...is to send out to the
Criminal Division section or component most likely to
maintain records a form memorandum concerning the
request” accompanied by the FOIA request. Id.
at 4. The receiving section is instructed to review the
request, “[s]earch all records and file systems in
[the] Section, ” and “[r]espond on the attached
sheet advising [the FOIA/PA Unit] of any files located
pertaining to the subject matter of the request, including
records stored at the Federal Records Center(s).”
Id. at 4-5. The receiving section is also directed
to copy all records located and attach the copies to its
response. Id. at 5.
The Star's FOIA Requests
2011, the Star made a FOIA request for “the
entire investigative report authored by John Cox...and Pam
McCabe…into the 1995-1997 prosecution of five
defendants convicted in a 1988 explosion in Kansas City that
killed six firefighters.” Doc. #21-1, at 3. In
response, the Criminal Division informed the Star
that it located one responsive file - i.e., the memorandum.
Id. The Criminal Division informed the Star
that it was withholding portions of the final version of the
memorandum subject to Exemptions 6, 7(C), and 7(D) of the
FOIA. Id. The Criminal Division released three pages
in full, fifteen pages in part, and withheld two pages of the
final version of the memorandum. Id. at 3-4, 23-44.
August 2011, the Star submitted another FOIA
request. Id. at 4, 46-47. This time, the
Star asked for “copies of all the underlying
documents, such as field documents and/or reports of
interviews, created by John Cox...and Pam McCabe...to produce
their investigative report into the 1995-1997 prosecution of
five defendants….”; “the original request
for the investigation from former U.S. Attorney John
Wood”; “memoranda created within the DOJ as to
the scope and/or nature of the investigation”;
“documents or memo[randa] relating to whether the
investigators should have subpoena power as part of their
probe”; “logs or listings of tape-recorded
interviews of witnesses from the original investigation by
the ATF that were turned over to McCabe and Cox for their
review[;] and “any memoranda relating to the Cox/McCabe
report during the editing stage of the process.”
the Star's second FOIA request, the FOIA/PA Unit
sent search requests to three sections in September 2011.
Id. 5-6. One request was sent to the Organized Crime
and Gang Squad (“OCGS”) of the Criminal Division.
Id. at 5. OCGS was responsible for reviewing the
Star's allegations, and according to the FOIA/PA
Unit, OCGS was the section most likely to maintain responsive
records. Id. In response to the search request, OCGS
sent three boxes of records to the FOIA/PA Unit. Id.
request was sent to the Capital Case Unit (“CCU”)
“to search for potentially responsive records of one
former OCGS staff member.” Id. More
specifically, the Information and Technology Management Team
(“ITM”) searched a CCU custodian's email and
hard drive for certain search terms (i.e., “Kansas
City, ” “KC, ” “Sheppard, ” and
“Firefighters”) during the timeframe of June 2011
to February 2012. Id. The search yielded no
responsive records. Id.
third request was sent to the Office of the Assistant
Attorney General. Id. at 6. A search of one Deputy
Assistant Attorney General custodian's hard-copy files
was conducted. Id. This custodian's emails were
not searched because he was not employed by the Criminal
Division during the request's date range. Id.
ITM also searched one former Deputy Assistant General
custodian's emails for specific terms (i.e.,
“Kansas City, ” “KC, ”
“Firefighters Case, ” “United States v.
Sheppard, ” and “subpoena”) between
June 1, 2008, and October 31, 2001. Id. According to
the DOJ, the search resulted in one document that was not
responsive to the request. Id.
Sheppard's FOIA Requests
February 2, 2012, Sheppard made a FOIA request. Doc. #21-1,
at 6, 52-53. He sought an unredacted copy of the memorandum
dated July 9, 2011, and “[a]ny and all additional
reports, addendums, tapes, notes or other materials
associated with this investigation by the Office of Inspector
General or the Department of Justice….”
Id. According to the DOJ, because the FOIA/PA Unit
was already in possession of the responsive records, a search
for responsive records was not initiated. Id. at 6.
April 2016, Sheppard, through his counsel, made another FOIA
request, asking for “the opportunity to copy and
inspect public records including and related to the July 8,
2011 Department of Justice - Criminal Division
Memorandum...regarding ‘Review of Kansas City
Star Allegations Regarding the Prosecution of United
States v. Sheppard'” as well as “all
notes, recordings, and transcripts pertaining to the
Inspector General's investigation that produced that
memorandum.” Id. at 7, 55. According to the
DOJ, “[b]ased upon the three prior FOIA requests, the
records being sought by [Sheppard] were already searched for,
collected, and in the possession of the FOIA/PA Unit.”
Id. at 7.
November 2016, the DOJ informed Sheppard's counsel that
“a search has been conducted in the appropriate
section” and 450 pages responsive to his FOIA request
were located. Id. at 7, 69-70. The DOJ informed
Sheppard that three pages were appropriate for full release,
thirty-five pages were appropriate for partial release, and
412 pages were exempt from disclosure pursuant to the
FOIA's Exemptions 5, 6, 7(C), and/or 7(D). Id.
December 2016, Sheppard administratively appealed the
DOJ's decision related to his FOIA request. Doc. #21-1,
at 72-75. In February 2017, Sean O'Neill, Chief of the
Administrative Appeals Staff for the DOJ's Office of
Information Policy, sent a letter to Sheppard's counsel
stating he received and reviewed the appeal. Id. at
81. O'Neill determined the records responsive to
Sheppard's request were exempt from the access provision
of the Privacy Act. Id. at 81. Pursuant to the FOIA,
O'Neill concluded the Criminal Division properly withheld
certain information because the information was protected
from disclosure by Exemptions 5, 6, and 7(C). Id. at
81-82. He also determined “it is reasonably foreseeable
that disclosure of the information withheld would harm the
interests protected by these exemptions.” Id.
Sheppard's Release from Prison
2012, the United States Supreme Court held “mandatory
life without parole for those under the age of 18 at the time
of their crimes violates the Eighth Amendment's
prohibition on ‘cruel and unusual
punishments.'” Miller v. Alabama, 567 U.S.
460, 465 (2012). In 2016, the Supreme Court concluded
Miller applied retroactively on collateral review.
Montgomery v. Louisiana, 136 S.Ct. 718, 732-37
(2016). Sheppard was a minor at the time of the arson in
1988. Pursuant to Miller and Montgomery, in
March 2017, ...