22-226 Jabar v. U.S. Department of Justice

In the United States Court of Appeals For the Second Circuit

August Term, 2022 No. 22-226

STEVE SATAR JABAR, Plaintiff-Appellant,

v.

UNITED STATES DEPARTMENT OF JUSTICE, Defendant-Appellee.

On Appeal from a Judgment of the United States District Court for the Western District of New York.

SUBMITTED: JANUARY 23, 2023 DECIDED: FEBRUARY 23, 2023

Before: CABRANES and NARDINI, Circuit Judges, and RAKOFF, District Judge. *

* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. Plaintiff-Appellant Steve Satar Jabar appeals from a decision by the United States District Court for the Western District of New York (John Sinatra, Jr., J.) granting summary judgment to the United States Department of Justice. Jabar sued the Department of Justice under the Freedom of Information Act (“FOIA”),

, seeking documents from the Federal Bureau of Investigation related to himself, speculating that they might include exculpatory information that the government had not disclosed in his recent criminal trial. The government produced 21 sets of responsive documents and an index detailing FOIA exemptions under which it withheld other responsive documents, and the district court granted summary judgment for the government. On appeal, Jabar argues (1) that summary judgment was improperly granted because his FOIA action is an effort to vindicate his rights under Brady v. Maryland,

(1963), and (2) that, in the alternative, the district court erred in not conducting an in camera inspection of withheld documents. We hold otherwise. As we explained in Brown v. Federal Bureau of Investigation,

(2d Cir. 1981), FOIA and the criminal discovery process provide distinct tracks for seeking disclosure from the government. That a FOIA action might lead to the discovery of documents useful to a particular criminal defendant changes neither the government’s statutorily defined obligations under FOIA, nor the government’s burden at summary judgment. We therefore AFFIRM the district court.

Michael Kuzma, Law Office of Michael Kuzma, Buffalo, NY, for Plaintiff-Appellant.

Daniel Tenny and David L. Peters, for Brian M. Boynton, Principal Deputy Assistant Attorney General, Washington, D.C., and

2 for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY, for Defendant-Appellee.

PER CURIAM:

In 2016, a federal jury found Steve Satar Jabar guilty of wire

fraud and related charges stemming from his misuse of thousands of

dollars from a United Nations grant. One month after the guilty

verdict, Jabar asked the Federal Bureau of Investigation to turn over

all documents related to him under the Freedom of Information Act

(“FOIA”),

, speculating that they might include

exculpatory information that the government had not disclosed in his

criminal trial. While awaiting a response, Jabar filed this FOIA action

against the United States Department of Justice, of which the FBI is a

part. The government eventually produced 21 sets of responsive

documents and an index detailing FOIA exemptions under which it

withheld other responsive documents. The government then moved

for summary judgment, including with its motion an affidavit

3 detailing its search methodologies, the FOIA exemptions under

which it withheld documents, and its efforts to redact and produce

segregable portions of exempt documents. The district court declined

to review the withheld documents in camera and granted the

government’s motion for summary judgment. Jabar now appeals,

arguing (1) that summary judgment was improperly granted because

his FOIA action is an effort to vindicate his rights under Brady v.

Maryland,

(1963), and (2) that, in the alternative, the district

court erred in not conducting an in camera inspection of withheld

documents.

We hold otherwise. As we explained in Brown v. Federal Bureau

of Investigation,

(2d Cir. 1981), FOIA and the criminal

discovery process provide distinct tracks for seeking disclosure from

the government. That a FOIA action might help a particular criminal

defendant discover documents useful to his defense changes neither

the government’s statutory obligations under FOIA, nor the

4 government’s burden at summary judgment. Accordingly, the

district court properly granted summary judgment to the

government. Further, the district court acted well within its

discretion in declining to conduct in camera review of the withheld

documents, as the government’s affidavit described its efforts to

search, review, and redact documents with sufficient particularity for

the court to decline in camera review, and Jabar failed to challenge the

veracity of the government’s declaration. We therefore AFFIRM the

judgment of the district court.

I. Background

Plaintiff-Appellant Steve Satar Jabar moved to the United

States from Iraq in 1989 and became a United States citizen in 1996.

In 1995, Jabar and Deborah Bowers founded a non-profit organization

called Opportunities for Kids International (“OKI”) to assist refugees

in New York. See United States v. Jabar,

(2d Cir. 2021),

cert. denied sub nom. Bowers v. United States,

(2022)

(mem.).

5 In June 2004, Jabar and Bowers applied on behalf of OKI to the

United Nations Development Fund for Women for a $500,474 grant

to establish a radio station in Iraq called Voice of Women, intended to

broadcast educational programming to women.

at 72–73. On

December 15, 2004, OKI received the first $350,000 disbursement of

that grant.

. Jabar and Bowers, however, did not comply with

the grant’s financial reporting requirements, and converted more

than $65,000 of those funds to personal use.

at 73–74. In 2005, the

Internal Revenue Service began investigating OKI based on multiple

suspicious activity reports from financial institutions, and on May 21,

2009, a grand jury in the Western District of New York indicted Jabar

and Bowers on fraud, money laundering, and false statement charges.

at 74–75.

On September 2, 2016, at a trial before Judge Lawrence J.

Vilardo, a jury convicted Jabar and Bowers of conspiring to commit

wire fraud, wire fraud, and making false statements.

. Jabar

6 moved for a judgment of acquittal under Rule 29 and, in the

alternative, for a new trial under Rule 33 of the Federal Rules of

Criminal Procedure.

On September 27, 2017, the district court,

citing insufficient evidence, granted his post-verdict motion for

acquittal as to the conspiracy and wire fraud charges.

The

government appealed and, on November 19, 2021, our Court reversed

the acquittal and remanded the case to the district court for

consideration of Jabar’s new trial motion.

. Jabar’s motion for

a new trial remains pending before Judge Vilardo.

By letter dated October 10, 2016, Jabar submitted a request to

the FBI under FOIA and the Privacy Act, 5 U.S.C § 552a, seeking all

documents pertaining to him held by the Bureau. 1 On April 10, 2017,

while awaiting a response to his FOIA request, Jabar filed his

1 Although Jabar’s FOIA request was submitted under both FOIA and the Privacy Act, on appeal Jabar contends only that summary judgment was improperly granted because “FOIA may be used to remedy [Brady] violations and the District Court erred by not conducting an in camera inspection of the records withheld in full to determine if there were any segregable portions.” Appellant Br. at 2. We therefore confine our analysis to FOIA.

7 complaint in this case in the United States District Court for the

Western District of New York.

The FBI has since processed 5,368 pages of documents

responsive to Jabar’s FOIA request. Across 21 interim releases of

records, the government released 154 pages in full, released 632 pages

in part, and withheld 4,582 pages in full. On March 13, 2020,

following its search and productions, the Department of Justice filed

an index containing documents withheld in whole or part, alongside

justifications for the asserted disclosure exemptions, fulfilling its

obligation under Vaughn v. Rosen,

, 826–27 (D.C. Cir.

1973). Upon the agreement of the parties, the government’s Vaughn

index covered only a 503-document sample of the responsive

documents.

On November 30, 2020, the government moved for summary

judgment. In support of that motion, the government filed an

affidavit from Michael G. Seidel, Section Chief of the

8 Record/Information Dissemination Section of the Information

Management Division at the FBI (the “Seidel Declaration”). Seidel

described the FBI’s filing system, its search methodology, and its

justifications for refusing to release the withheld documents.

On November 24, 2021, United States Magistrate Judge Leslie

G. Foschio issued a Report and Recommendation recommending that

the government’s summary judgment motion be granted and that in

camera review of the withheld documents be denied. On January 12,

2022, United States District Judge John L. Sinatra, Jr., adopted the

Report and Recommendation in full and entered judgment for the

Department of Justice. Jabar now appeals.

II. Discussion

We review the grant of summary judgment de novo, see Long v.

Off. of Pers. Mgmt.,

(2d Cir. 2012), and a district

court’s decision about whether to conduct in camera review of

documents withheld under FOIA for abuse of discretion, see

Associated Press v. U.S. Dep’t of Justice,

(2d Cir. 2008).

9 On appeal, Jabar argues that summary judgment was

improperly granted because FOIA may be used to remedy violations

of the government’s obligations to disclose exculpatory evidence as

articulated in Brady v. Maryland,

(1963), and its progeny.

In the alternative, Jabar contends that the district court erred in

declining to conduct an in camera inspection of the withheld records

to determine if any portions were segregable.

A. Background legal frameworks

Congress enacted FOIA to “facilitate public access to

Government documents.” U.S. Dep’t of State v. Ray,

(1991). The statute requires that agencies search for and promptly

make available records in response to requests that reasonably

describe the records sought. See

(a)(3). FOIA is

premised on “a policy strongly favoring public disclosure of

information in the possession of federal agencies.” Halpern v. Fed.

Bureau of Investigation,

(2d Cir. 1999). Accordingly,

“[a]gencies are required to disclose requested documents unless they

10 fall within an enumerated exemption.” Knight First Amend. Inst. at

Columbia Univ. v. U.S. Citizenship & Immigr. Servs.,

, 327

(2d Cir. 2022). FOIA authorizes courts “to enjoin the agency from

withholding agency records and to order the production of any

agency records improperly withheld from the complainant.”

(a)(4)(B); see also N.Y. Legal Assistance Grp. v. Bd. of Immigr.

Appeals,

, 215–25 (2d Cir. 2021) (construing FOIA’s

remedial provision).

In a criminal prosecution, such as Jabar’s, the government has

independent disclosure obligations, including under Rule 16 of the

Federal Rules of Criminal Procedure and Brady v. Maryland,

. Brady and its progeny have identified “an affirmative duty” on

the part of the government “under the Due Process Clause ‘to disclose

favorable evidence known to it, even if no specific disclosure request

is made by the defense.’” United States v. Hunter,

(2d

Cir. 2022) (quoting United States v. Payne,

(2d Cir.

11 1995)). A Brady violation occurs where the evidence at issue was

favorable to the defendant, the evidence was suppressed by the

government, and the defendant was prejudiced by the suppression of

that evidence. See Strickler v. Greene,

, 281–82 (1999).

“[T]he remedy for a Brady violation is vacatur of the judgment of

conviction and a new trial in which the defendant now has the Brady

material available to her.” Poventud v. City of New York,

(2d Cir. 2014).

B. Summary judgment

With these principles in mind, we turn to Jabar’s argument that

the district court improperly granted summary judgment to the

Department of Justice. He argues that the government’s disclosure

obligations under FOIA are expanded, or in some manner altered, by

12 his rights under Brady, and thus the district court erred in granting

summary judgment. 2 We disagree.

We begin with the principle that FOIA and Brady give rise to

distinct government disclosure obligations. FOIA involves a

statutorily created process that requires a government agency to

disclose properly requested agency records to anyone making the

request, unless one of the enumerated exemptions within the statute

applies. See

(a)–(b); Carney v. U.S. Dep’t of Just.,

(2d Cir. 1994). In contrast, Brady and its progeny articulate

an affirmative duty of disclosure, implicit in the Due Process Clause

2 Jabar describes his argument as a claim that “Brady violations may be remedied by FOIA.” Appellant Br. at 2 (cleaned up). This phrasing, however, turns the substance of his argument around, because Jabar has no evidence of a Brady violation for which he seeks a remedy. If he had such evidence, the proper remedy would be to file a Rule 33 motion for a new trial in his criminal case. See Poventud,

. Jabar instead filed his FOIA action seeking records that he contends might assist him either in his criminal trial if the district court grants his pending motion for a new one, or in prevailing on that pending motion. His argument, in other words, is that he suspects a Brady violation might have occurred and wants to use FOIA to see if there is evidence of such a violation. Thus, this case presents the question of whether Brady expands or alters the government’s FOIA obligations when the requester is seeking documents in the hope of demonstrating a Brady violation. As we explain here, it does not.

13 of the Constitution, that requires prosecutors to turn over certain

materials to a defendant in a criminal case. See Hunter,

.

In Brown v. Federal Bureau of Investigation, we affirmed summary

judgment in favor of the government on a FOIA claim despite the

plaintiff’s hope “to obtain evidence sufficient to mount a collateral

attack on his kidnapping conviction.”

. In that case, the

government had withheld the requested documents pursuant to

FOIA Exemptions 6 and 7,

, both of which “require a balancing

of the individual’s right of privacy against the preservation of the

basic purpose of the Freedom of Information Act to open agency

action to the light of public scrutiny.” 3 Dep’t of the Air Force v. Rose,

3FOIA Exemption 6 covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

(b)(6). And FOIA Exemption 7 covers

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of

14

(1976) (internal quotation marks omitted). Brown

did not contend that the withheld documents fell outside those FOIA

exemptions; rather, he argued that he needed the documents to

overturn his criminal conviction. See Brown,

. We

rejected that argument, holding that a plaintiff’s personal interest in

obtaining evidence “cannot . . . enter into the weighing or balancing

process[, because] FOIA is not intended to be an administrative

discovery statute for the benefit of private parties.” 4

(internal

quotation marks omitted).

personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, . . . , (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, . . . , or (F) could reasonably be expected to endanger the life or physical safety of any individual[.]

at § 552(b)(7). 4 Brown also asserted that disclosure pursuant to his FOIA request would

serve the public interest in “the fair and even-handed administration of our criminal justice system.” Id. at 75 (internal quotation marks omitted). We found, however, that “[a]ny benefits accruing to the public by virtue of the possibility that [Brown] may win a new trial are too uncertain, indirect, and remote” to warrant disclosure of otherwise exempt documents under a public interest balancing. Id. at 76. Indeed, “the only relevant public interest in the FOIA balancing analysis” is “the extent to which disclosure of the information sought would ‘she[d] light on

15 Our holding in Brown defeats Jabar’s argument here. Jabar filed

his FOIA request seeking documents to attack his criminal conviction

(and, if his pending new trial motion is granted, to defend himself in

further proceedings in that criminal case). But as we held in Brown,

FOIA has no special rules or exceptions that apply when the

documents sought relate to a criminal case. It is certainly conceivable

that a FOIA request could elicit documents that would undermine a

requester’s criminal conviction, including by demonstrating a Brady

violation. But that possibility does not alter the government’s

obligations under FOIA. Jabar’s effort to conflate these two doctrines

defies both the statutory structure of FOIA and our case law, and the

district court properly rejected his argument. See Brown,

; see also Williams & Connolly v. Sec. & Exch. Comm’n,

,

an agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’” U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth.,

(1994) (quoting U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press,

(1989)). Jabar does not argue that an interest balancing analysis was warranted here, much less does he articulate a properly defined public interest in disclosure.

16 1245 (D.C. Cir. 2011) (explaining that “disclosure in criminal trials is

based on different legal standards than disclosure under FOIA” and

that “FOIA is neither a substitute for criminal discovery, nor an

appropriate means to vindicate discovery abuses”); Boyd v. U.S. Dep’t

of Justice,

(D.C. Cir. 2007) (“Amicus’s suggestion that

an agency’s compliance with FOIA is nonetheless deficient where the

agency may allegedly have failed to make the trial prosecutor aware

of Brady material conflates two separate procedures by which a

defendant may obtain information from the government.”).

The out-of-circuit cases Jabar cites for support are inapposite.

He points to United States v. Murdock,

(5th Cir. 1977),

to suggest that information discovered through FOIA may be used at

a criminal trial. True enough, but as the Fifth Circuit wrote in

Murdock:

the discovery provisions of the Federal Rules of Criminal Procedure and the FOIA provide two independent schemes for obtaining information through the judicial process. Although information obtained through the FOIA may

17 be useful in a criminal trial, we find that the FOIA was not intended as a device to delay ongoing litigation or to enlarge the scope of discovery beyond that already provided by the Federal Rules of Criminal Procedure.

(emphasis added). Likewise, in Price v. U.S. Dep’t of

Justice Attorney Office, the D.C. Circuit suggested that FOIA can

uncover undisclosed Brady material and other evidence relevant to a

criminal case.

(D.C. Cir. 2017). But the court made

this general observation only by way of background, in the course of

holding that a waiver of FOIA rights included in a defendant’s plea

agreement was, in that specific instance, contrary to public policy.

. Nowhere in Price did the D.C. Circuit suggest that Brady, or

other government disclosure obligations in criminal matters, such as

through Rule 16 of the Federal Rules of Criminal Procedure, altered

FOIA’s explicit statutory scheme. See

at 679–83. 5 And, of course,

5 Jabar also cites Ferri v. Bell, in which the Third Circuit overturned a grant of summary judgment for the government in a FOIA action. See

, 1218 (3d Cir. 1981), modified by

(3d Cir. 1982). He is correct that Ferri found the defendant’s interest in overturning his conviction might constitute a public interest for the purposes of balancing public and private interests under FOIA

18 even if these other Circuits had intimated to the contrary, we would

still be bound by our decision in Brown.

With Jabar’s Brady argument squarely foreclosed, the merits of

the summary judgment motion are straightforward. The government

can “prevail on a motion for summary judgment in a FOIA case” by

“showing that its search was adequate,” “that any withheld

documents fall within an exemption to the FOIA,” Carney, 19 F.3d at

Exemption 6. See id. at 1218 (“[A] FOIA request for material implicating the Brady rule simultaneously advances an ‘indirect public [interest] purpose’ satisfying the second prong of the test for disclosure under one of the privacy-based exemptions.” (quoting Wine Hobby USA, Inc. v. U.S. Internal Revenue Serv.,

(3d Cir. 1974))). Ferri, however, does not advance Jabar’s argument. First, since Ferri, the Supreme Court has clarified that “the only relevant ‘public interest in disclosure’ to be weighed” against an individual’s privacy interest “is the extent to which disclosure would serve the ‘core purpose of the FOIA,’ which is ‘contribut[ing] significantly to public understanding of the operations or activities of the government.’” Fed. Lab. Rels. Auth.,

(emphasis added) (quoting Reps. Comm. for Freedom of the Press,

). Second, most courts to rule on the issue—and most pointedly ours in Brown—have “sensibly refused to recognize, for purposes of FOIA, a public interest in nothing more than the fairness of a criminal defendant’s own trial.” Neely v. FBI,

(4th Cir. 2000); see also Brown,

(“Any benefits accruing to the public by virtue of the possibility that [the defendant] may win a new trial are too uncertain, indirect, and remote to mandate an abrogation of” an individual’s right to privacy). Third, in any event, Jabar fails to argue that those documents withheld under FOIA Exemption 7 ought to be released under a weighing of public and government interests, and thus has waived any argument that Ferri, 645 F.2d at 1218, bears on—or ought to bear on—this case.

19 812, and that “any reasonably segregable non-exempt portion of an

agency record [was] released,” Lead Indus. Ass’n v. Occupational Safety

& Health Admin.,

(2d Cir. 1979). Agency declarations

are sufficient to carry the government’s burden where they “describe

the justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within the

claimed exemption, and are not controverted by either contrary

evidence in the record or by evidence of agency bad faith.” Knight, 30

F.4th at 327 (internal quotation marks omitted). Agency affidavits

“are accorded a presumption of good faith.” Carney,

(internal quotation marks omitted). “[O]nce the agency has satisfied

its burden,” the requester “must make a showing of bad faith on the

part of the agency sufficient to impugn the agency’s affidavits or

declarations or provide some tangible evidence that an exemption

claimed by the agency should not apply or summary judgment is

otherwise inappropriate.”

(citation omitted); see also

at 813

20 (concluding that “something more than . . . bare allegations is

needed” to rebut an agency’s affidavits in support of summary

judgment).

Summary judgment was properly granted here. As the district

court determined, the Seidel Declaration describes the nature of the

government’s search, the various justifications for the documents

withheld, and the government’s efforts to provide Jabar with all

reasonably segregable non-exempt information. Jabar has provided

no basis to call the Seidel Declaration into question, and that

declaration is therefore sufficient to carry the government’s burden.

See

. Accordingly, the district court properly granted

summary judgment to the government.

C. In camera review

Jabar also contends that the district court erred in declining to

conduct an in camera review of documents withheld in full to

determine if any portions of those documents were segregable. But

the decision whether to conduct an in camera review of documents

21 withheld in response to a FOIA request is one that falls within the

informed discretion of the district court, which we will not disturb

lightly. See Associated Press,

. “Under

(a)(4)(B), district courts are authorized to conduct in camera

review of disputed documents to determine whether the documents,

in whole or part, are properly withheld under a FOIA exemption.”

Id.; see also In re City of New York,

(2d Cir. 2010)

(observing that a “district court may, in the exercise of its informed

discretion and on the basis of the circumstances presented, require

that the party possessing the [potentially privileged] documents

appear ex parte in chambers to submit the documents for in camera

review by the judge”); In re Grand Jury Subpoenas Dated March 19, 2002

& August 2, 2002,

(2d Cir. 2003) (describing in camera

review as a “practice both long-standing and routine in cases

involving claims of privilege”). It is appropriate

where the government seeks to exempt entire documents but provides only vague or sweeping claims as to why

22 those documents should be withheld. Only if the government’s affidavits make it effectively impossible for the court to conduct de novo review of the applicability of FOIA exemptions is in camera review necessary.

Associated Press,

(citation omitted).

Here, the magistrate judge’s report and recommendation,

adopted in full by the district court, considered the Seidel

Declaration’s detailed justifications for withholding documents in

full. It further noted that Jabar had not provided any basis to question

Seidel’s affirmation that documents withheld in full were either

entirely subject to a FOIA exemption or included only information “so

intertwined with exempt material” that “no information could be

reasonably segregated for release.” Seidel Declaration ¶ 163. Because

the Seidel Declaration was sufficiently detailed, and because Jabar has

failed to present any argument or justification for questioning that

declaration, the district court acted well within its discretion in

declining to conduct in camera review of those documents withheld in

23 full. See Halpern,

(“In camera review is considered the

exception, not the rule, and the propriety of such review is a matter

entrusted to the district court’s discretion.” (internal quotation marks

omitted)); Armstrong v. Exec. Off. of the President,

(D.C.

Cir. 1996) (finding no abuse of discretion in declining to conduct in

camera review where the government’s explanations were legally

adequate on their face).

III. Conclusion

In sum, we hold as follows:

1. The district court did not err in granting summary

judgment to the government in this FOIA action because

Brady v. Maryland,

(1963), does not alter the

government’s statutory obligations under FOIA, and

because Jabar has not challenged the government’s

otherwise sufficient declaration.

24 2. The district court acted within its discretion in declining to

conduct in camera review of documents the FBI withheld in

full pursuant to FOIA exemptions.

We therefore AFFIRM the judgment of the district court.

25