Case 2:08-cv-00788-CW-SA Document 110 Filed 07/03/12 Page 1 of 23

Jesse C. Trentadue (#4961) 8 East Broadway, Suite 200 Salt Lake City, UT 84111 Telephone: (801) 532-7300 Facsimile: (801) 532-7355 jesse32@sautah.com Pro Se Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION JESSE C. TRENTADUE, Plaintiff, vs. FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF INFORMATION AND PRIVACY, and UNITED STATES CENTRAL INTELLIGENCE AGENCY, Defendants. : : : : PLAINTIFFS MEMORANDUM IN : SUPPORT OF MOTION TO STRIKE PORTIONS OF DAVID M. : : HARDYS FIFTH SUPPLEMENTAL DECLARATION : : Case No.: 2:08cv788 CW : Judge Clark Waddoups : : : : :

Plaintiff hereby submits this Memorandum in support of his Motion to Strike Portions Of David M. Hardys Fifth Supplemental Declaration.1

Doc. 109.

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STATEMENT OF FACTS Below are examples of the contradictions of previous sworn statements, misleading statements and/or evidentiary deficiencies that form the basis of Plaintiffs Motion to Strike paragraphs 10 through 21 Mr. Hardys Fifth Supplemental Declaration: A. 1. Paragraphs 10 Through 14. Paragraphs 10 through 14 of Mr. Hardys Fifth Supplemental

Declaration are directed at paragraph 2 of the Courts May 13, 2011, Order, which required the FBI to search the I-Drive and S-Drive for evidence as to the location of the missing videotapes and, if no search was conducted, to explain why such a search would not be reasonably calculated to locate the requested videotapes and other materials.2 2. In his Third Supplemental Declaration,3 Mr. Hardy stated that the

I-Drive was where the FBI temporarily stored electronic media prior to its final approval and that [o]nce final approval was received, the material was added to the official investigative case file, which includes indexing the material in the

Doc. 82 2. Doc. 83-1. 2

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ACS, the FBIs automated system, and at the same time deleted from the I-Drive.4 3. Mr. Hardy also stated in his Third Supplemental Declaration that

the I-Drive in use during OKBOMB no longer exists, and that the FBI currently has an S-Drive, known as a common drive or shared drive.5 The S-Drive apparently replaced the I-Drive in 2001. 4. Mr. Hardy also stated in his Third Supplemental Declaration that

no search was conducted of either the I-Drive or the S-Drive because, among other things, the S-Drive was not in use until after 2001, so there was no reason to believe the S-Drive would contain any responsive OKBOMB documents and, as previously noted, beginning in 2001 the I-Drive was phased out as a repository for OKBOMB documents.6 5. In his Fifth Supplemental Declaration, however, Mr. Hardy says

that the S-Drive is not a shared drive. According to Mr. Hardys latest

Doc. 83-1, 15. Id. at 16.(emphasis added). Doc. 83-1, 15 and 16. 3

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Declaration, there is no single S-Drive in existence today that would contain all information that may have been migrated from the I-Drive system . . . . 7 6. Thus, Mr. Hardy represents to the Court in his Fifth Supplemental

Declaration that in order to comply with the Courts May 13, 2011, Order the FBI would have to conduct a nationwide search of the S-Drives in every Field Office and that could take several months to complete.8 Mr. Hardy further states that should the Court consider a search of [all] the S-Drives in use today, we would respectfully submit that it would be so burdensome that a reasonable estimate of the time necessary to do so is unavailable.9 7. The information about the I-Drive and S-Drive which Mr. Hardy

provided in paragraph 10 through 14 of his Fifth Supplemental Declaration came from unidentified members of his staff and/or from unidentified personnel in the FBIs Oklahoma City Field Office with whom Mr. Hardys staff had allegedly discussed the I-Drive and S-Drive.10 Mr. Hardy had no personal knowledge of

Doc. 104-2, 13.(emphasis added). Doc. 104-2, 14.(emphasis added). Id . at 14. See Doc. 104-2, s 10-14. 4

10

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these matters,11 which is why he has given so many misleading statements to the Court about the I-Drive and the S-Drive, such as the need to search and burdens associated with a search of every FBI Field Office in the Country. 8. Contrary to what Mr. Hardy was told by his staff and an

unidentified person in the Oklahoma City Field Office, a nationwide search is not necessary. There are only two locations that need to have searches done of the IDrive and S-Drive for the videotapes and related documents that Plaintiff is seeking in the instant case. 9. The first and most obvious location for an I-Drive and/or S-Drive

search would be the FBIs Oklahoma City Field Office because the chain of custody records and/or evidence control documents for those surveillance camera videotapes would have been prepared by FBI agents from that Field Office. In other words, it would have been agents from the Oklahoma City Field Office who took possession of this evidence, not agents from the FBIs Seattle Washington Field Office or any other FBI Field Office.

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10.

The same would be true with respect to chain of custody records

and/or evidence control documents for the Hanger videotape of McVeighs arrest. In fact, the two chain of custody records that the FBI has already produced concerning the Hanger videotape came from the Oklahoma City Field Office.12 11. The Oklahoma City Field Office was also where an agent was

reported to have been under investigation for making copies of a videotape showing the bomb being delivered to the Murrah Building on the morning of April 19, 1995. That agent is reported as have made those copies to give to friends and co-workers.13 It is certainly not unreasonable to conclude that, if this is true, there should be some records of this event still remaining in the Oklahoma City Field Office. 12. The second location to search would be the FBIs Los Angeles

Field Office. That is the Field Office out of which several agents are reported to have been under investigation for trying to sell to the media a videotape of the bomb being delivered to the Murrah Building on the morning of April 19, 1995.

12

See Doc. 91, pp. 37-41, 45 and 46. Doc. 107-5, p. 35. 6

13

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These FBI agents were reportedly asking $1 million for that videotape.14 If this story about trying to sell that videotape is true, one would think that an I-Drive and/or S-Drive search of the Los Angeles Field Office might produce results since this is the type of sensitive (embarrassing to the FBI) information that Mr. Hardy has said is typically not up loaded into the FBIs computerized evidence record tracing system. According to Mr. Hardy, [m]any documents are not uploaded for various reasons, including the records level of classification, security reasons, or privacy concerns.15 Since they are not uploaded, these documents would presumably remain in either an I-Drive or the S-Drive system. 13. Equally misleading is the statement by Mr. Hardy in his

Fifth Supplemental Declaration that it was not possible to do a search of the IDrive since that system is no longer in existence and the Oklahoma City Field Office did not possess any I-Drive backup tapes.16 This statement is misleading because in an earlier related case, also captioned Trentadue v. FBI,17

14

15

Doc. 98-2, p. 4, 10. Doc. 104-2, 12.(emphasis added). Case No. 2:04-CV-772-DAK. 7

16

17

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Plaintiff had asked for documents related to the Southern Poverty Law Centers possible involvement with or connection to OKBOMB and OKBOMB suspects. 14. And in response to that FOIA request, the FBI submitted a

December 9, 2004, Declaration from Mr. Hardy in which he stated that a search, including a search of the I and S drives at the Oklahoma City Field Office produced no responsive documents.18 It is obvious, therefore, that contrary to what Mr. Hardy states in his Fifth Supplemental Declaration, the I-Drive at the Oklahoma City Field Office was still active and being searched for OKBOMB material as recently as December of 2009; and the S-Drive must also have been a shared drive as well as a potential repository for OKBOMB documents, otherwise why was it searched? B. 1. Paragraphs 15 Through 18. Paragraphs 15 through 18 of Mr. Hardys Fifth Supplemental

Declaration are directed at paragraphs 3 and 4 of the Courts May 13, 2011, Order

Trentadue v. FBI, Case No. 2:04-CV-772-DAK, Doc. 21, p. 21, 16. (emphasis added). For the Courts ease of reference, a copy of that 2004 Declaration is attached hereto as Exhibit 1. Nevertheless, the Court in that case ordered the FBI to conduct another search (Doc. 31), which resulted in the discovery and production to Plaintiff of 17 documents, when Mr. Hardy had previously told the Court that there were no responsive documents. Doc.44, pp. 17-24. 8

18

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which, respectively, required the FBI to advise the Court whether the Evidence Control Centers or ECCs located at FBI Headquarters, the Oklahoma City Field Office and the FBI Crime Lab had been manually searched and, if not, explain why there was no reasonable likelihood that the requested materials would not be found in any of those locations;19 and to either manually search OKBOMB physical files at FBI Headquarters, the FBI Oklahoma City Field Office and the FBI Crime Lab for the requested videotapes and other materials that were collected during the first 14 days following the Oklahoma City Bombing, or provide evidence as to why such a search would be too burdensome to undertake.20 2. With respect to the Courts order to search the ECCs,Mr. Hardy

stated in his Fourth Supplemental Declaration that the ECC at the FBI Crime Lab was searched but not the ECC at the Oklahoma City Filed Office. According to Mr. Hardy, instead of searching the Oklahoma City Field Offices ECC a search was done instead of the Evidence Control Room in the Oklahoma City

19

Id . 3. Id . 4. 9

20

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warehouse where all OKBOMB materials are currently located.21 Mr. Hardy stated that both searches failed to locate the missing videotapes.22 3. Mr. Hardy also stated in his Fourth Supplemental Declaration

that no search was conducted at FBI Headquarters because there is no ECC at FBI Headquarters or any similar repository of physical evidence called by any other name at FBI Headquarters.23 Mr. Hardy makes this statement when it is clear from the Hoffman case that evidence in the OKBOMB case was being kept somewhere at FBI Headquarters. 4. In his Fifth Supplemental Declaration, Mr. Hardy tells the

Court that the Oklahoma City Field Office has its own ECC.24 He then goes on to say that since all of the OKBOMB evidence is in the Oklahoma City Warehouse, the Oklahoma City Field Offices ECC was not searched because there would be

21

Doc. 97-12, 6.

Doc. 83-1, 7-9. Mr. Hardy had earlier told the Court that a manual search for the missing videotapes would be extremely burdensome . Doc. 66-1, 7 (emphasis added).
23

22

83-1, 6. Doc. 104-2, 17. 10

24

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no reason to expect any OKBOMB materials to be located in the on-site ECC.25 5. Mr. Hardys representation to the Court that all of the OKBOMB

evidence and records made their way to the OKBOMB warehouse is certainly contradicted by an earlier sworn statement by him. In his Third Supplemental Declaration, Mr. Hardy told the Court that: While it is always a possibility that responsive documents might have been misfiled and thus could be located some where other than in the OKBOMB file (though it would be impossible to know where). I am not aware that this is the case, and a reasonable search did not and would not locate any such documents (if they exist) because they would not be in a location likely to contain responsive documents. 26 Obviously, despite Mr. Hardys statement to the contrary, a location highly likely to contain OKBOMB materials not in the OKBOMB evidence warehouse would be the ECC at the Oklahoma City Field Office, which is where the evidence and evidence control records were originally stored before being transferred to the OKBOMB warehouse. 6.
25

With respect to the Courts order for a manual search, Mr. Hardy

Id.(emphasis added). Doc. 83-1, 20.(emphasis added). 11

26

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told the Court in his Third Supplemental Declaration that no manual search was done because it would take an employee 18 months to review the 450,000 pages of documents gathered during the two week period immediately following the Bombing.27 7. Thereafter, Plaintiff showed that a manual search of the

OKBOMB files only needed to be done in Sub-file D of the official case file, which contained a much smaller number of documents; several thousand at most. Mr. Hardy then submitted a Fourth Supplemental Declaration, in which he stated that because a manual search of Sub-file D is not likely to produce any responsive documents, he had not made any effort to determine how burdensome it would be to conduct a manual search of Sub-file D.28 8. In his Fifth Supplemental Declaration, Mr. Hardy now claims that

a manual search for documents related to the evidence collected by the FBI during the first 14 days of the OKBOMB investigation would be virtually impossible

27

Doc. 83-1, 11.

Doc. 97-1, 8. The FBI further stated that it hasnot specifically determined the burdens that would be involved in a manual search of Sub-file D, but that the likely benefit of such as search are too low to justify imposing any additional burdens upon them. Doc. 97, p. 19. With the Courts permission, Plaintiff is willing to conduct the searches that he has requested and that the Court has ordered be done. 12

28

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because those records could be anywhere in the paper files in the OKBOMB Warehouse.29 Mr. Hardy says that this is so because paper versions of records gathered from outside the Oklahoma City Field Office (i.e., evidence collected by other FBI Field Offices) are stored in boxes and have not been arranged in chronological order.30 9. Mr. Hardy is again being misleading when he speaks about the

paper version of evidence records not being in chronological order because the records being stored in boxes are clearly the records from other FBI Field Offices, which evidence records would have had nothing to do with videotapes and documents Plaintiff has requested and for which the FBI was ordered by the Court to search. The videotapes and related documents requested by Plaintiff would have been taken into evidence and/or prepared by the Oklahoma City Field Office; such as the Hanger videotape for which the FBI has produced two chain of custody records.31

29

Doc. 104-2, 18. Id. Doc. 91, pp. 42-43. 13

30

31

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10.

It is likewise obvious that the evidence control and chain of

custody documents prepared by agents out of the Oklahoma City Field Office are in chronological order. If they were not, how could Mr. Hardy have earlier represented to the Court that it would take one of his staff 18 months to review the 450,000 pages of documents gathered during this 14 day window following the bombing? C. 1. Paragraphs 19 Through 21. Paragraphs 19 through 21 of Mr. Hardys Fifth Supplemental

Declaration are directed at paragraph 5 of the Courts May 13, 2011, Order, which required Mr. Hardy to submit a Declaration stating that he does not know of either the existence or likely locations of the missing videotapes, and that he is otherwise unaware of anyone else who may know of the existence of likely locations of the videotapes.32 2. In his Third Supplemental Declaration, Mr. Hardy stated that I

am unaware of the existence or likely location of additional tapes responsive to the plaintiffs FOIA request, including tapes from the Murrah Building or any

32

Id. 5. 14

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additional Hanger tape other than the tape that plaintiff already received, and do not know of anyone who would know where additional tapes would be located.33 3. In his Fifth Supplemental Declaration, Mr. Hardy mysteriously

revises his earlier statement about the Murrah Building tapes to say: I also neither know, myself, nor know of anyone else who may know where any such videotape footage might be found within the custody, control, or possession of the FBI.34 Mr. Hardy inserts the same qualifier, within the custody, control, or possession of the FBI, into his statement about his the whereabouts of the original Hanger videotape.35 4. Mr. Hardys sudden attempt to limit his knowledge about the

location of the missing videotapes and other records to those persons or places within the custody, control or possession of the FBI is both contrary to the Courts Order, and illuminating. It is contrary to Courts May 13, 2011, Order because that Order did not confine Mr. Hardys knowledge to the FBI. It is illuminating because it would appear from this parsing of words that now perhaps

33

Doc. 83-1, 20. Doc. 104-2, 20.(emphasis added). Id. at 19. 15

34

35

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Mr. Hardy and/or his staff may very well have located that tape in the possession of another Federal Agency. 5. And Mr. Hardys statement about not knowing where else to look

for the missing videotapes and documents is deceptive, too. As the Court is aware, during the Hoffman case in which the same videotapes and documents were the subject of a FOIA request by a reporter by the name of David Hoffman,36 it came to light that one videotape and 300 responsive documents were being kept at FBI Headquarters and NOT in the Oklahoma City Field Offices EEC along with other OKBOMB evidence.37 That information was provided to the Hoffman Court by way of an Affidavit from Mr. Hardys predecessor, Mr. Hodes. Surely then, Mr. Hardys Office must have records and/or documents in the Hoffman matter that describe and/or identify this evidence and, perhaps, reveal its current location. Mr. Hardy has also known about the Hoffman case for some time, yet he has not mentioned his Offices records in that matter, which certainly exists and would be

Hoffman v. United States Department of Justice , Western District of Oklahoma, 5:98CV1773.

37

36

Doc. 70-15, p.4. 16

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a reasonable place to look for evidence about the missing videotapes and related chain of custody-evidence control documents! 6. Likewise illuminating is Mr. Hardys statement in his Fifth

Supplemental Declaration that some unidentified member of his staff recalls that another unidentified person at the Oklahoma City Field Office said that the original videotape from Trooper Hangers car was returned to the Oklahoma Highway Patrol . . . and that the Oklahoma Highway Patrol had given the original tape to Trooper Hanger himself for his personal use, and that Trooper Hanger may have donated the tape to a library or museum collection,38 when there is no evidence of that happening. 7. It is apparent from Mr. Hardys Fifth Supplemental Declaration,

that his representations to the Court are without any foundation and based upon multi-layers of hearsay and speculation, which is troubling. It is troubling because Mr. Hardy was ordered by the Court to affirm whether had misrepresented information or provided incomplete or otherwise misleading information to the Court under an asserted right to protect the interests of the United States,39 which

38

Id . at p. 11, 19 and fn. 5. Id . 1. 17

39

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he did in his Third Supplemental Declaration.40 But how could Mr. Hardy possibly have done so when he had no personal knowledge as to the truth, falsity or completeness of the factual statements that he has made to the Court in this case, all of which were under oath? Yet, he has done so. 8. In paragraph 19 of his Fifth Supplemental Declaration,

Mr. Hardy again tries to mislead the Court by insisting that the only matters at issue in this dispute are the original Hanger tape and the Murrah tapes.41 Plaintiffs FOIA request was much broader than that and included not only surveillance cameras tapes from specific buildings, including the Murrah, Regency Towers and YMCA Buildings, but also any other tapes showing the bomb being delivered on the morning of April 19, 1995, as well as the chain of custody or evidence control records for these tapes.42
40

Doc. 83-1, 5. Doc. 104-2, 19.

41

Plaintiff asked for the videotapes taken on the morning of April 19, 1995 by security or surveillance cameras located on the Murrah Building and ten other near by buildings. Doc. 61-2, pp.33-36,and 44-45. Plaintiff also made clear in that his FOIA request included the surveillance tape or tapes showing the Ryder truck pulling up to the Federal Building and the pausing (7-10 seconds) before resuming into a slot in the front of the building and the truck detonation 3 minutes and 6 seconds after the suspects exited the truck that was described in the Secret Service Time line : To repeat myself for emphasis, I would like copies of these tapes showing McVeigh and 18

42

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9.

The FBI, however, only provided Plaintiff with 164 pages of

documents,43 which was a much smaller number of documents than those identified as being at FBI headquarters in the Hoffman case. Likewise, the FBI produced 29 videotapes to Plaintiff,44 but no videotapes from the Murrah Building cameras, the YMCA Building cameras, Regency Tower exterior surveillance cameras, Regency Tower ATM camera tape of the bomb being delivered, although these videotapes had been specifically requested by Plaintiff,45and Plaintiff has provided the Court with evidence showing that they do exist.46

another person delivering the bomb to the Murrah Building on the morning of April 19, 1995, and the detonation of that bomb. I want these videotapes even if they are not among those [specific] videotapes I have asked for in paragraphs 1 through 11 above. Doc. 61-2, pp. 44-45(emphasis in original). See also Doc. 61-2, p. 36 containing the same request. Furthermore, because FOIA requests are to be liberally and broadly construed, it cannot be disputed that Plaintiffs request for the bomb delivery videotapes would cover all such tapes, regardless of whether they were from ATMs or surveillance cameras. See Anderson v. Dept. of Health and Human Services , 907 F.2d 936,1 (10 th Cir. 1990).
43

See Doc. 61-2, p.56. Doc, 61-2 pp. 63 and 66. See Doc. 61-2, pp. 43 through 45.

44

45

See Doc. 107, s 9 through 14, and exhibits sited therein: Doc. 107-3, 4, 5, 6, 7, 8, 9, and 10. 19

46

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MR. HARDYS FIFTH SUPPLEMENTAL DECLARATION IS UNRELIABLE, MISLEADING, AND NOT EVIDENCE In order to be consider by the Court, Mr. Hardys Fifth Supplemental Declaration must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.47 However, paragraphs 10 through 21 of Mr. Hardys most recent and hopefully last Declaration do not meet this standard. To begin with, the statements contained in these paragraph are not based upon Mr. Hardys personal knowledge. Hence, they should be stricken.48 These paragraphs are also rife with multiple layers of hearsay, conclusory factual assertions and speculation, which are additional grounds for the Court to strike them.49 Admittedly, with in the context of a FOIA suit, the Court may award summary judgment solely on the basis of information provided by the agency in
47

Federal Rule of Civil Procedure 56(B)(4). See Leidig v. Honeywell, Inc., 850 F.Supp. 796, 799-800 fn. 1 (D. Mn. 1994).

48

See e.g. Falls Riverway Realty, Inc. v. Niagra Falls, 754 F.2d 49 (2 nd Cir. 1985); Koclanakis v. Merrimack Mutual Fire Insurance Co., 899 F.2d 673, 675 (7 th Cir. 1990); First Pacific Networks, Inc. V. Atlantic Mut. Ins. Co., 891 F. Supp. 510, 514 (N.D. Cal. 1995)..
49

20

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affidavits or declarations, provided the affidavit or declaration is not controverted by either contrary evidence in the record nor by evidence of agency bad faith.50 But the affidavits or declarations must be more than a conclusory assessment of the Federal Agencys actions.51 It is also true that in an ordinary FOIA case, the Federal Agencys declarant may include in his or her Declaration hearsay and information obtained from third parties to describe the search conducted and/or the good faith effort of that search. But this is not an ordinary FOIA case especially given the fact that [i]n the case of Islamic Shura Council of Southern California v. Federal Bureau of Investigation, No. SAC07-1088-CJC, 2011 WL 156476 (S.D. Cal. April, 2011), the court found the Government, and Mr. Hardy specifically, to have provided false and misleading information to the court through sworn statement.52 Neither is Mr. Hardys Fifth Supplemental Declaration particularly trustworthy or otherwise reliable due to its contradiction of previous sworn statements by Mr.

United America Financial, Incorporated v. Post Master General, 513 F. Supp. 2d 29, 38 (D. D.C. 2008).
51

50

See id. at 47. Doc. 82, p. 2.(emphasis added). 21

52

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Hardy, misleading statements and/or the depth of hearsay and speculation contained therein. It is very much on the order of a sham affidavit of the type Courts disregard.53 CONCLUSION It is very clear that the statements made by Mr. Hardy in paragraphs 10 through and including 21 of his Fifth Supplemental Declaration are not only conclusory, but they are likewise unreliable and misleading not only because of Mr. Hardys lack of candor, but also because they are not based upon Mr. Hardys personal knowledge, they contain multiple layers of hearsay and speculation and/or Mr. Hardy lacks the necessary foundation to make those statements, much less to make them under oath. It is respectfully requested, therefore, that these paragraphs be stricken and not considered by the Court. DATED this 3rd day of July, 2012. /s/ jesse c. trentadue Jesse C. Trentadue Pro Se Plaintiff

T:\6000\6201\1\FOIA Appeal\CIA\MEMO MOTION TO STRIKE FIFTH SUPPLEMENTAL DECLARATION.wpd

53

See Maddy v. Vulcan Matterials Co., 737 F. Supp. 1528, 1532 (D. C. Kan.

1990). 22

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CERTIFICATE OF SERVICE I hereby certify that this 3rd day of July, 2012, I electronically filed the foregoing MEMORANDUM with the U.S. District Court. Notice will automatically be electronically mailed to the following individuals who are registered with the U.S. District Court CM/ECF System:

KATHRYN L. WYER United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20530 Tel: (202) 616-8475 JARED C. BENNETT, Assistant United States Attorney 185 South State Street, #300 Salt Lake City, Utah 84111 Tel: (801) 524-5682 Attorneys for Defendants

/s/ jesse c. trentadue