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Sheppard v. United States Department of Justice

United States District Court, W.D. Missouri, Western Division

August 6, 2019

BRYAN E. SHEPPARD, Plaintiff,
v.
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

          ORTRIE D. SMITH, SENIOR JUDGE.

         Pending 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 prejudice.

         I. BACKGROUND [1]

         A. The 1988 Fires

         In 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.

         In 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 life imprisonment.

         B. The Star's Articles

         Beginning 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.[2] 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.

         C. The Criminal Division's Investigation

         In July 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.

         From 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.[3] 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.

         At the conclusion of the investigation, a twenty-page memorandum[4] (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.

         The 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 memorandum.

         In 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.

         Section 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.

         Although 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.

         In 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.” Id.

         D. The DOJ's FOIA/PA Unit

         The 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.

         E. The Star's FOIA Requests

         In July 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.

         In 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.” Id.

         Regarding 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.

         Another 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.

         The 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.

         F. Sheppard's FOIA Requests

         On 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.

         In 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.

         In 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.[5] 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. at 69-70.

         In 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. at 82.

         G. Sheppard's Release from Prison

         In 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, ...


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