DELERY, Assistant Attorney General
CARLIE CHRISTENSEN, Acting United States Attorney (Utah Bar No. 0633)
J ARED C. BENNETT, Assistant United States Attorney (Utah Bar No. 9097)
J OHN R. TYLER, Assistant Director, Federal Programs Branch
KATHRYN L. WYER (Utah Bar No. 9846)
United States Department of J ustice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Tel: (202) 616-8475
Attorneys for Defendants







FED. R. CIV. P. 52(c)

Case No: 2:08-CV-788 CW-DBP

Judge Clark Waddoups

Defendants the Federal Bureau of Investigation (“FBI”) and FBI’s Oklahoma City Field
Office (collectively, “Defendant” or the “FBI”) hereby respectfully move the Court for judgment
on partial findings pursuant to Fed. R. Civ. P. 52(c). Under the standard that applies to a Rule
52(c) motion at a bench trial, the Court as the trier of fact need not consider the evidence in the
light most favorable to Plaintiff but may weigh the evidence presented at trial. Nieto v. Kapoor,
Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 1 of 7
268 F.3d 1208, 1217 (10th Cir. 2001). The FBI is entitled to judgment here because Plaintiff has
put forward no credible evidence of any other location or search method likely to yield additional
tapes or documents that match the parameters of Plaintiff’s request under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiff bears the burden to make that showing. See
Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (“once the agency has fulfilled its burden
under FOIA of conducting ‘reasonably calculated searches, . . . . the burden is on [plaintiff] to
identify specific additional places the agency should now search”). His failure to do so therefore
dooms his claim and entitles the FBI to judgment as a matter of law.
There can be no serious dispute that the FBI searched the locations likely to contain the
requested material. Plaintiff’s FOIA request sought certain videotapes collected during the 1995
Oklahoma City bombing investigation, as well as documents referencing the collection of those
videotapes. The evidence demonstrates that FBI employees searched the OKBOMB Warehouse
– which is the designated repository for all OKBOMB-related material – using a number of
different methods. The FBI’s witness Linda Vernon described the methods she used, which
included searching an evidence database that lists all videotapes that were collected, as well as
the ZyIndex and Collected Items, which is the part of the FBI’s Automated Case Support system
that tracks evidence, including its location and chain of custody. Another FBI witness, Diane
Lang, an evidence technician at the Oklahoma City Field Office, also searched Collected Items
and personally reviewed every videotape whose contents could not be clearly identified through
other means. These witnesses have explained why they believe these searches were the best way
to find the tapes and records that Plaintiff requested. The eight FBI employees who testified have
also explained that everything they know, as people who work directly with the FBI records
systems in question, tells them that there is no other search likely to turn up any more material.
Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 2 of 7
Plaintiff’s response to this testimony has amounted to nothing but rank speculation,
grasping at straws, and word games. Plaintiff has attempted to construct an elaborate scheme
involving hidden “black-site” record repositories, so-called “restricted” files, “secret” computer
drives, and rumors recorded in FBI interview reports. But he has provided no concrete or direct
evidence to support any of his wild theories. Nor do any of his theories suggest an actual location
that could be searched, other than some unknown place where, Plaintiff and his fellow
conspiracy theorist witnesses speculate, the FBI must keep the records that it wants to hide.
Despite their speculative nature, the FBI has made repeated efforts to address the
possibilities that Plaintiff has raised regarding additional search methods. It has addressed the
Oklahoma City Field Office’s I and S drives, on-site Evidence Control Room, and valuable
evidence vault; it has consulted with the Crime Lab; it has addressed Plaintiff’s “Washington
Field Office/ Q9 & Q10” suggestion; and it has addressed the “alleged Los Angeles tape sale”
theory. Even if the thorough searches that the FBI conducted were not by themselves sufficient
to demonstrate the FBI’s good faith (particularly given the presumption of good faith to which
the FBI is entitled), its efforts to pursue what are essentially nothing but one wild goose chase
after another, in the interest of satisfying Plaintiff and this Court, would more than adequately do
so. Meeropol v. Meese, 790 F.2d 942, 953 (D.C. Cir. 1986).

Plaintiff’s repeated suggestion at trial, that the timing of the FBI’s efforts undermines its good
faith, was misguided. Given that the only relief at stake in this proceeding is the possibility that
the FBI might be ordered to conduct additional searches, Plaintiff cannot claim to be prejudiced
by the FBI’s willingness to undertake additional efforts or provide more information to the Court
at any point before judgment. See Meeropol, 790 F.2d at 953 (an agency’s further efforts to
respond to a plaintiff’s FOIA request “suggest a stronger, rather than a weaker, basis for
accepting the integrity of the search”); Conti v. U.S. DHS, No. 12-5827, 2014 WL 1274517, at
*15 (S.D.N.Y. Mar. 24, 2014) (supplemental searches that uncovered additional records did not
suggest bad faith). All the more so where everything the FBI has done since originally providing
Plaintiff with the 30 tapes and 200 pages that it found only confirms that the FBI’s initial search
was reasonable.
Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 3 of 7
The FBI has even gone so far as to bring six individuals to testify who are either entirely
outside the FBI or long since retired. Sheriff Charles Hanger explained that, contrary to
Plaintiff’s longstanding contention, the videotape that Plaintiff received was in fact a true
unedited copy of the tape that then-Trooper Hanger recorded in his dashboard camera, which he
did not turn on until Timothy McVeigh was already in custody inside his patrol car. Richard
Williams, former GSA employee and building manager for the Murrah Federal Building,
testified that the surveillance cameras mounted on that building were not operational for several
years prior to the bombing. Mr. Williams’ testimony must be given far more weight than the
passing observations of Plaintiff’s witnesses Mr. Browning and Mr. Cooley, particularly when
Mr. Browning admitted that the “tour” he described had taken place four years prior to the
bombing, in 1991, Mr. Cooley only claimed to have visited the area once in connection with a
bid he did not win, and both admitted they did not know whether any video recording equipment
in the Murrah Building was operational on April 19, 1995. Former Special Agents J on Hersley,
Larry Tongate, and Walter Lamar were personally involved in the OKBOMB investigation,
either as case agents (SAs Hersley and Tongate), who would be familiar with all the evidence in
the case, or as an on-the-ground investigator (SA Lamar) who had particular experience with
collecting and viewing the videotape surveillance footage, and they all testified that the FBI had
never collected or had in its possession footage showing the Ryder truck detonating in front of
the Murrah Building – which is the other tape, in addition to the “unedited” Hanger tape, that
Plaintiff claims is “missing” from the response he received.
Plaintiff repeatedly suggested at trial that the Court is not allowed to consider the
existence of the tapes that Plaintiff is seeking. But he is only half right. Under FOIA law, a
plaintiff cannot undermine a search that looked in all the right places just by speculating that
Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 4 of 7
something is missing, or even by identifying known records that were not included in the
response that he received. Trentadue v. FBI, 572 F.3d 794, 797 (10th Cir. 2009) (the issue, in a
case challenging an agency’s FOIA search, “is not whether any further documents might
conceivably exist but rather whether the government's search for responsive documents was
adequate[,] . . . [which is determined under] a standard of reasonableness, and is dependent upon
the circumstances of the case” (internal quotation omitted)); see id. at 797-98 (Court’s inquiry is
“not [focused] on whether additional documents exist that might satisfy the request”); Rodriguez
v. U.S. Dep’t of Army, No. 12-1923, 2014 WL 1245001, at *5 (D.D.C. Mar. 27, 2014) (“despite
the defendant’s inability to produce the missing documents, the search was sufficiently thorough
and reasonable for the circumstances”).

But that does not mean that this Court has to ignore evidence that there are no tapes
matching Plaintiff’s descriptions. When the weight of the evidence shows that there are no other
tapes to find, Plaintiff cannot meet his burden to identify an additional search that would be
likely to find them. See Weisberg v. U.S. Dept. of Justice, 705 F.2d 1344, 1351-52 (D.C. Cir.
1983) (“The FBI's explanations about the possible fate or dubious existence of these documents,
though not alone sufficient to relieve the agency of its obligation to prove it has vigorously
looked for them, are more than adequate to defend an otherwise reasonable search against the

In particular, Plaintiff has suggested that references in newspaper articles and in the unreliable
Timeline document to the existence of certain footage should somehow have led the FBI to
conduct additional searches simply because that particular footage had not been found. But
references in newspaper articles are not “obvious leads” that an agency is required to pursue,
even if it were possible to do so. Physicians for Human Rights v. U.S. Dep’t of Defense, 675 F.
Supp. 2d 149, 162 (D.D.C. 2009) (“Finally, the plaintiffs' suggestion that there were obvious
‘leads’ in the case that would prompt further searches was rejected, as plaintiffs could only rely
upon news articles and reports authored by non-governmental sources.”). Such sources may be –
and in this instance appear to be – inaccurate. Moreover, as FBI witnesses testified at trial, none
of this material provided any clue – such as a new search term or identified location – that could
be used to find additional material.
Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 5 of 7
charge that a good faith thorough effort would necessarily have uncovered them.”); Reyes v. U.S.
EPA, No. 10-2030, 2014 WL 2620987, at *4 (D.D.C. J une 13, 2014) (upholding agency’s
decision not to search for records it had determined did not exist because “searches for
documents that it never had or no longer possessed would be futile”). The Court can certainly
take into account that Plaintiff has already received the only Hanger tape that there ever was, and
that the individuals in the FBI who would be most likely to know if the FBI had a tape showing
the Ryder truck detonation – Ms. Vernon and SAs Hersley, Tongate, and Lamar – are all in
agreement that the FBI never had or knew of such a tape.
For the foregoing reasons, Defendant respectfully requests that the Court enter judgment
in favor of the FBI.

DATED this August 7, 2014.

Respectfully submitted,

Assistant Attorney General
Acting United States Attorney (#0633)
Assistant United States Attorney (#9097)
Assistant Director, Federal Programs Branch

s/ Kathryn L. Wyer
United States Department of J ustice
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Tel: (202) 616-8475
Attorneys for Defendants
Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 6 of 7

I hereby certify that on August 7, 2014, I caused a true and correct copy of the
foregoing document to be served through the Court’s electronic filing system on plaintiff,
proceeding pro se, at the address listed below:

J esse C. Trentadue
Suitter Axland
8 E. Broadway, Suite 200
Salt Lake City, Utah 84111

/s/ Kathryn L. Wyer
Kathryn L. Wyer
Case 2:08-cv-00788-CW-DBP Document 199 Filed 08/07/14 Page 7 of 7

Sign up to vote on this title
UsefulNot useful