UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Case No. 04-cr-379-RCL-6 AL VIN M. GASKINS,

Defendant.

MEMORANDUM ORDER

The Court and the parties met recently to discuss next steps in potential discovery regarding

Defendant Alvin Gaskins' pending certificate of innocence. During the status conference, the

Court stated that an order addressing such discovery would be forthcoming. This is that order.

Specifically, the Court will order the government to produce unredacted copies of certain Federal

Bureau of Investigation ("FBI") records and bank records related to Dream Team Investigations

("DTI"). Additionally, Gaskins will be permitted to submit limited interrogatories and document

requests in accordance with the Federal Rules of Civil Procedure.

I. BACKGROUND

In 2004, Alvin Gaskins and twenty other defendants were charged with various crimes

related to a narcotics-distribution conspiracy that operated in the District of Columbia, Maryland,

and Virginia between 1999 and 2004. United States v. Gaskins ("Gaskins I"),

(D.C. Cir. 2012). In 2006, Gaskins and three codefendants-Gerald Eiland, Frederick Miller, and

Robert Bryant-went to trial.

. The jury found Gaskins guilty of conspiracy to distribute

more than 100 grams but less than one kilogram of heroin.

. In 2008, this Court sentenced

Gaskins to 262 months ofincarceration. See

Gaskins appealed and, in 2012, the Circuit reversed

the conviction after finding that it was not supported by sufficient evidence.

. In

1 total, Gaskins served almost eight years of his nearly twenty-two-year sentence before his release.

United States v. Gaskins ("Gaskins II"), No. l:04-cr-379 (RCL),

, at *1 (D.D.C.

Dec. 13, 2019).

In 2017, Gaskins moved in this Court for a certificate of innocence, pursuant to

. Def.'s Mot. for Certificate oflnnocence, ECF No. 1237. The government opposed. Gov't

Opp'n, ECF No. 1242. Nearly a year later, Gaskins moved for the Court to open limited discovery

and set an evidentiary hearing on the motion. Mot. for Disc. & for Evidentiary Hr'g, ECF No.

1257. The Court denied Gaskins' motion for certificate of innocence without ruling on his

discovery or evidentiary hearing requests. See generally Gaskins II,

. Gaskins

appealed and, in 2021, the Circuit vacated this Court's order and remanded the case for this Court

to address Gaskins' procedural motion. 1 United States v. Gaskins ("Gaskins III"),

(D.C. Cir. 2021). According to the Circuit, "Gaskins' requests aimed at developing the key factual

issue of his own state of mind," even though the Circuit acknowledged that "with 'an inchoate

crime like conspiracy, ... your best evidence' is '[w]hat is in Mr. Gaskins' mind."'

at 1362-

63 (citing Oral Arg. Tr. at 24:21-22, 36:14-15).

On February 2, 2023, the Court and the parties met for a status conference to discuss next

steps on remand. Minute Entry (02/07/2023). The Court ordered the parties to meet and confer

regarding a proposed scheduling order for discovery. On March 22, 2023, the parties jointly

submitted an update detailing their conversations regarding, and disagreements about, the content

and scope of the limited discovery. ECF No. 1308. On March 24, 2023, the Court and the parties

1 Key to the Circuit's reasoning appears to be the fact that the government did not oppose Gaskins' discovery request either in their briefing or at oral argument. See, e.g., United States v. Gaskins ("Gaskins III"),

(D.C. Cir. 2021) ("The government never opposed Gaskins' motion for limited discovery and an evidentiary hearing");

("The government's acquiescence to Gaskins' procedural requests naturally raises the prospect of their being granted"). At oral argument, the government explained that it did not respond to Gaskins' motion because the Court had not ordered a response. See Oral Arg. Rec. at 27 :50- 28:05 .

2 met again for a status conference and to discuss their disagreements and proposed next steps.

Minute Entry (03/24/2023). Among the topics discussed at that status conference were the

applicability of the Federal Rules of Civil Procedure and whether the documents that Gaskins

requests, if any, are discoverable.

II. DISCUSSION

The Court will lay out the legal standards applying to discovery in certificate of innocence

proceedings and provide the parties guidance on moving forward with discovery in this case.

A. Civil Discovery Rules Apply to This Case

As a threshold matter, the Court must address what standards govern discovery here. In

Gaskins' procedural motion, he asked the Court to apply the "rules and legal theories applicable

to civil discovery principles." Mot. for Disc. & for Evidentiary Hr'g at 3. The case that Gaskins

cites for this proposition, Pulungan v. United States,

(7th Cir. 2013), does not

specifically state that the traditional civil discovery rules apply to a certificate of innocence

proceeding. At the March 24, 2023 status conference, the government stated that it did not believe

that the civil discovery rules apply to this case. Status Conference Tr. (Draft) at 5:5-7. This is a

novel issue, with no case resolving the matter.

The Federal Rules of Civil Procedure plainly control here because (1) the petition for a

certificate of innocence is a civil proceeding and (2) the Federal Rules of Civil Procedure apply to

all civil actions and proceedings unless Congress or the Supreme Court has made a specific

exception, and no exception has been made for this type of proceeding. For the first point, this

Court previously remarked, "[a] petition for a certificate of innocence is civil in nature" and that

"[u ]nlike in a criminal action, the party seeking the certificate bears the burden of proof and must

prove his case by a preponderance of the evidence." Gasldns II,

, at *1 (citing

3 Betts v. United States,

(7th Cir. 1993) and United States v. Grubbs,

(6th Cir. 2014)); see Abu-Shawish v. United States,

(7th Cir. 2018)

("A petition [for a certificate of innocence] starts what is, in essence, a civil proceeding within the

closed criminal case."). The Circuit indicated that it shares this view. See Gaskins III,

("A petition for a judicial certificate of innocence may be filed under the existing criminal

docket number or as a separate, miscellaneous civil case" (internal quotation marks and citation

omitted));

(using the phrase "civil proceeding" to describe the nature of a proceeding

"for a certificate of innocence");

(favorably citing Seventh Circuit cases describing the

applicability of civil procedure principles to proceedings for certificates of innocence). For the

second point, Federal Rule of Civil Procedure 1 states that the federal rules "govern the procedure

in all civil actions and proceedings in the United States district courts, except as stated in Rule

81." Fed. R. Civ. P. 1 (emphasis added). Neither Congress nor the Supreme Court has established

an exception to that basic rule for certificates of innocence. Consequently, the Federal Rules of

Civil Procedure apply.

Next, discovery is governed by Federal Rules of Civil Procedure 26 through 37. See Doe

1 v. George Washington Univ.,

, 97 (D.D.C. 2021). In general, "[p]arties may

obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense

and proportional to the needs of the case, considering the importance of the issues at stake in the

action, the amount in controversy, the parties' relative access to relevant information, the parties'

resources, the importance of the discovery in resolving the issues, and whether the burden or

expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b){l). The

Court "must limit the frequency or extent of discovery otherwise allowed" if the Court determines,

among other things, that "the discovery sought is unreasonably cumulative or duplicative" or that

4 "the proposed discovery is outside the scope permitted by Rule 26(b)(l)." Fed. R. Civ. P.

26(b )(2)(C). "Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and

to dictate the sequence of discovery." Crawford-El v. Britton,

(1998).

Though the Court concludes that the civil discovery rules apply to this case, the Court

acknowledges that this is not a typical civil case. Usually, discovery is essential to build a record

of evidence for a court to adjudicate an issue. However, a substantial record already exists here.

Over the course of Gaskins' three-month trial, the government presented evidence in the form of

"eight cooperating witnesses, more than 14,000 intercepted telephone conversations, visual and

video surveillance and evidence seized during the execution of search warrants." Gaskins I,

. The defense presented evidence its own in the form of witnesses and recorded

phone conversations.

. In other words, the parties start with far from a blank slate.

Therefore, more limited discovery is required to rule on Gaskins' motion than in a typical case.

B. The Court Will Grant Limited Discovery

According to the Circuit, "[Gaskins'] position all along-in the criminal case and in

seeking a certificate of innocence-has been that he never joined a narcotics conspiracy, but

worked as a 'gofer' for Frederick Miller, a since-convicted leader of the conspiracy, running

personal errands for Miller and carrying out various administrative tasks for Dream Team

Investigations (DTI), Miller's private investigations company." Gaskins III,

(internal citations omitted). Thus, "[t]he key issue bearing on whether Gaskins is entitled to the

certificate concerns his state of mind, that is, whether he agreed to work with co-conspirators with

the specific intent to distribute drugs."

. The Court interprets this instruction to mean

that all discovery should bear some reasonable relation to this question.

5 In his original motion, Gaskins asked for discovery limited to the following pieces of

evidence: (1) an unredacted version of Federal Bureau of Investigation ("FBI") records from a

search of the conspiracy's stash house (an apartment in Maryland) that he received in response to

a 2014 Freedom of Information Act ("FOIA") request (including an interview with Miller,

inventories of the apartment, and the results of a fingerprint analysis), id. at 3-4; (2) the lease

application paperwork for the stash house, id. at 4-5; (3) bank records for DTI, id. at 5; (4) notes

from interviews with government informants, id.; and (5) that he be permitted to extend document

requests and interrogatories, id.

In the recent joint proposed scheduling order, Gaskins expanded upon his original

discovery request by asking for the following: "1) All notes from witness interviews where the

investigator or interviewee mentions Mr. Gaskins by name or implication .... If a transcript or

recording of the interviews exist, those should be produced as well; 2) All reports/records from the

searches of Mr. Gaskins' residence and the stash house; 3) All records referring or relating to

Dream Team Investigations, including investigative notes, inventories, bank records, and notes

from interviews; 4) Any documents from 2000-2004 that contain Mr. Gaskins' handwriting; and

5) Any documents the government intends to introduce at the hearing." Joint Proposed Scheduling

Order at 3.

The government opposes all of Gaskins' discovery requests, both past and present, except

for perhaps an unredacted version of the FBI records. Id. At the March 24, 2023 status conference,

the government stated that, though it has not been in contact with the FBI FOIA office, it is possible

that the office no longer has a copy of the unredacted records because such records are normally

destroyed after six years in accordance with that office's retention policy. Status Conference Tr.

6 (Draft) at 3: 18-22. The government further indicated that an original copy of the records may exist

in one or several of the more than one hundred case files pertaining to this case. Id. at 3:25-4:3.

i. The Unredacted Version of the FBI Records Is Discoverable

The Circuit already indicated that it is necessary to review unredacted vers10ns of

documents obtained by Gaskins' FOIA request-and particularly the interview with Miller-prior

to ruling on his certificate of innocence. See Gaskins III,

("[T]he unredacted

summary [of the Miller interview], as a contemporaneous account, could be a source of valuable

information, beyond any recollection of the interview that Miller might provide (assuming the

document reflected an interview of Miller and not someone else)."). The Court agrees that an

interview with Miller from the time of the raid on the stash house, where Miller purportedly

mentions Gaskins, could be relevant in determining the truthfulness of Gaskins' assertion that he

was unaware ofDTI's illicit activities and simply followed Miller's commands without question.

The Court recognizes that locating these records may impose some burden on the

government. However, the Court concludes that the 'importance of such information for the case

and Gaskins' inability to access the information, among other factors, outweigh any burden to the

government. That said, the Court understands that law enforcement documents must be treated

with special sensitivity. Thus, the Court will order production of the FBI records directly to the

Court for in camera review. See Mobley v. CIA,

(D.D.C. 2013). If Gaskins

and his counsel believe that in camera review would be insufficient, they should attempt to

negotiate an appropriate protective order with the government so that they may review the

document directly.

ii. The DTI Bank Records Are Discoverable

Similarly, the Court will grant Gaskins' request for production of the DTI bank records.

Since trial, Gaskins has maintained that DTI was a private investigations firm, that he "did not 7 know about the existence of the drug conspiracy being operated [Miller] and others at DTI, did

not share in its proceeds, and [that he] performed only legal acts that he believed were in service

of DTI, a seemingly legitimate business venture with clients and staffl:.]" Mot. for Certificate of

Innocence at 8, 10-11.

The existing record contains conflicting information regarding DTI's legitimacy. On the

one hand, "the government established at trial that DTI did not receive funds from the federal

district court nor the superior court," Gaskins II,

, at*3, even though

approximately ninety percent of defendants qualify for court-appointed counsel and related

services, Gov't Opp'n at 16. However, the trial record did not establish "why payments from

federal or local courts were a necessary or expected incident to a legitimate private investigations

business" or from what legitimate sources, if any, DTI did receive fonds. Gaskins III,

. On the other hand, the defense established that Miller held a valid private investigator's

license and that DTI maintained a valid business license and valid D.C. tax registration

certificate during the relevant period. See Gaskins I,

. For his part, Gaskins

claims that his duties for DTI included managing the company's bank account, depositing

checks, preparing checks for Miller's signature, handling payroll, preparing tax returns, Miller

Aff., ECF No. 1237-3, ,r,r 10-11, and "arrang[ing] for quick-turnaround flights for Miller's

cousin, Charles Brown," for DTI business. 2 Gaskins III,

. Finally, Gaskins

maintains that private parties hired DTI to serve process and conduct investigative services,

among other tasks. See Williams Aff., ECF No. 1237-2, ,r 2; Clennon Aff., ECF No. 1237-4, ,r 2.

While the government's trial evidence about DTI presented a possible negative inference

that the company was a fa9ade for the conspiracy, in the Circuit's view, this evidence was

2 Brown later "pleaded guilty to working as a cash courier" for the conspiracy. Gaskins Ill,

(citing Gaskins I,

).

8 "hardly substantial." Gaskins I,

. Given this gap in the trial evidence and

Gaskins' purported role managing various DTI finances, information from DTI's bank records is

necessary for the Court to determine the credibility of Gaskins' claim of DTI's legitimacy.

iii. The Court Will Allow a Limited Number ofInterrogatories and Document Requests

Gaskins asks for "[a] limited set of document requests and interrogatories" to "provide

clarity on" the arguments he raises. Mot. for Disc. & for Evidentiary Hr'g at 5. The Circuit has

indicated that the record in this case is not quite complete. See Gaskins III,

. In this

proceeding, Gaskins bears the burden to demonstrate his innocence. See

. Thus, the

Court sees no reason that Gaskins cannot be permitted to submit a limited set of interrogatories

and document requests. See Edmond v. US. Postal Serv. Gen. Counsel,

(J?.C.

Cir. 1991) ("[D]iscovery under the Federal Rules of Civil Procedure should be freely

permitted[.]"). Such interrogatories and document requests, to which the government may object,

must be submitted in accordance with Federal Rules of Civil Procedure 33 and 34. Gaskins is

reminded that he may not request information or documentation that is already present in the trial

record, as such information would be duplicative. See In re Navy Chaplaincy,

(D.D.C. 2018).

iv. The Rest of the Information Gaskins Requests Is Outside the Scope ofDiscovery

The Court will not order the rest of the production Gaskins requests because such

information is either duplicative or irrelevant and thus outside the scope of discovery.

Gaskins requests the lease and application for the stash house to conduct handwriting and

fingerprint analyses. But, as the government stated at the oral argument on Gaskins' appeal of

this Court's previous order, these documents are already part of the trial record and therefore

discovery is not required. See Oral Arg. Rec. at 29:20-38. Moreover, the Circuit indicated on

direct appeal that any handwriting analysis would not bear on Gaskins' state of mind. See

9 Gaskins I,

("[E]ven if the government had proven that the handwriting [on the

lease] was Gaskins', that would still be insufficient to establish that he knowingly participated in

the conspiracy with the specific intent to further its objective of distributing narcotics."). Of

course, there the Circuit examined the trial evidence under the standard of whether "a reasonable

jury could have found, beyond a reasonable doubt, that [Gaskins] knowingly entered into the

Eiland/Miller conspiracy with the specific intent to further its objective of distributing narcotics."

. "On a motion for a certificate of innocence," on the other hand, "the burden is on the

claimant to prove his innocence 1fy a preponderance of the evidence." Gaskins III,

. That said, the Court is confident that handwriting analysis would not help Gaskins meet

his burden to establish innocence in this proceeding for the same reason that the Circuit stated

that such evidence would have been unavailing on direct appeal.

Gaskins further requests records related to searches of the stash house and his home.

Regarding Gaskins' request for stash-house records, the Circuit noted that there was "no

evidence that he was ever present at or near" that site, including the fact that his fingerprints

were not found there. Gaskins I,

. Furthermore, the Circuit described how

the search of Gaskins' home "yielded neither drugs, nor records, nor any other evidence linking

Gaskins to the conspiracy. Nor did it (or any other search) yield evidence that Gaskins had

expensive jewelry, clothes, cars, or homes-as searches did uncover with respect to other

conspirators."

. The Circuit emphasized that "[t]he government's only evidence was

that Gaskins lived in his mother's modest apartment."

In other words, the record already

extensively details the absence of evidence linking Gaskins to the stash house or linking

Gaskins' residence to the conspiracy. Gaskins is free to point to this lack of evidence in support

of his demonstration of evidence. Therefore, any additional evidence would be duplicative.

10 Likewise, Gaskins' request for notes, transcripts, and/or recordings of investigators'

conversations with informants or witnesses who mentioned Gaskins, to the extent that such

information is not already present in the trial record, is duplicative or irrelevant. At trial, the

government presented eight cooperating witnesses. See

. "All but one were facing life

in prison if they did not obtain a downward sentencing departure in consideration for cooperating

with the government."

Even with these incentives, "none testified about any connection

between Gaskins and a narcotics conspiracy."

These witnesses, who "[a]ll were deeply

involved in the drug trafficking conspiracy," were presumably the government's strongest

witnesses in support of the charges against Gaskins.

Because even these witnesses' testimony

did not establish that Gaskins participated in the conspiracy, notes from interviews with these

witnesses or others would not aid in answering the question of what Gaskins knew or did not

know about the conspiracy. See Alexander v. FBI,

(D.D.C. 2000) ("This court

will not compel further testimony to allow plaintiffl:] to continue to rehash old topics of

discovery that have already been extensively covered."). Moreover, any marginal helpfulness the

notes may provide to Gaskins' claim is significantly outweighed by, and not proportional to, the

burden of production on the government to locate such notes amidst the more than one hundred

boxes of case files. "In contrast to the thin relevance of the requested discovery," namely as

potential evidence that more witnesses were not aware of Gaskins, "the burden it would impose

on the [government] is substantial." In re Ord. ofHulley Enters. Pursuant to 28 US.C. § 1782,

No. l 7-mc-1466 (BAH),

, at *5 (D.D.C. Aug. 18, 2017). For this reason, the

Court will deny this discovery request as well.

11 III. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that the government provide to the

Court unredacted versions of the documents attached as exhibits to Gaskins' Motion for Discovery

and Evidentiary Hearing [1257-1 and 1257-2] for in camera review. Specifically, those documents

are: 1) records dated July 20, 2004 and labeled with the file number 166E-WF-226414 SUB 302;

and 2) documents labeled 040615003 PO NB detailing the results of fingerprint examinations.

It is further ORDERED that the government provide to Gaskins bank records for Dream

Team Investigations that are in the government's possession.

It is further ORDERED that Gaskins may submit interrogatories and document requests

m accordance with Federal Rules of Civil Procedure 33 and 34 to the extent that such

interrogatories and requests seek information not already present in the record.

The parties are ORDERED to meet and confer on a proposed discovery timeline and

tentative date for an evidentiary hearing. The parties shall submit to the Court their proposed

timeline and hearing date by May 5, 2023.

IT IS SO ORDERED.

11-~ SIGNED this _ _ _ day of April, 2023. Royce C. Lamberth United States District Judge

12