Friday, December 15, 2017
‘Acid King’ Won’t Get Information on Informant
Ninth Circuit Finds Applicable FOIA Exemption Where Records Would Disclose Identity Of the Source of Information Even Though the Man’s Name Has Been Made Public
By a MetNews Staff Writer
Hearing argument are Ninth U.S. Circuit Court of Appeals Judges N. Randy Smith and Susan P. Graber, along with U.S. District Court Judge Jennifer G. Zipps of the District of Arizona, sitting by designation.
A man serving a life sentence without possibility of parole in a federal prison, who has been popularly dubbed the “Acid King”—having run the most massive operation in history of manufacturing the illicit psychedelic drug LSD—has lost his bid in the Ninth U.S. Circuit Court of Appeals to gain information relating to the confidante-turned-informer who caused his arrest in 2000.
William Leonard Pickard, 72, a Harvard-educated researcher/poet/writer, who had been deputy director of UCLA’s’ Drug Policy Research Program, was turned down Wednesday by a three-judge panel in a memorandum opinion, following 10 years of litigation over his Freedom of Information Act (“FOIA”) request.
The identity of the confidential informant, Gordon Todd Skinner, became known when he testified, under compulsion, at Pickard’s trial on a felony drug charge. Skinner owned a former missile silo in Kansas where the laboratory equipment for making LSD had been temporarily stored prior to the on-the-road arrests of him and Pickard as they were moving the apparatus.
Skinner was not prosecuted because, at the time of the arrest, he was already acting as a government informant, though he had previously been a participant in the wrongdoing.
DEA Press Release
Pickard and co-conspirator Clyde Apperson were found guilty on March 31, 2003, following an 11-week jury trial. The Drug Enforcement Agency (“DEA”), in a press release, quoted the agent-in-charge as saying:
“These defendants were proven, by overwhelming evidence, to be responsible for the illicit manufacture of the majority of the LSD sold in this nation. The proof of the significance of these prosecutions and convictions lies in the fact that LSD availability in the United States was reduced by 95% in the two years following their arrest.”
How Pickard expects DEA records relating to Skinner to help him at this point is unclear, but the government has steadfastly opposed any glimpses at those records.
Content of Opinion
Wednesday’s memorandum opinion cites an exemption in the FOIA from disclosure where matter “could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis….”
The opinion says:
“The question for decision is whether Skinner spoke, at the time he spoke, on the understanding that his communication to the government would remain confidential….One way for a source to be confidential is for the government to give an express assurance of confidentiality….An express promise is essentially unassailable and is easy to prove….Here, a senior lawyer for the DEA swore in a declaration that the DEA gives express assurances of confidentiality to its informants in Skinner’s position, and his written agreement confirms that the assurance was given to him. The fact that the government stated that it could not ‘guarantee’ that Skinner’s identity would never be divulged merely describes the reality that the future cannot be known, but does not undermine the assurance of confidentiality at the time Skinner gave information to the DEA.”
Identity Already Revealed
Pickard’s lawyer, Mark Thomas Rumold of the Electronic Frontier Foundation, argued that the exemption is inapplicable because Skinner’s identity was revealed at trial.
“We disagree,” the panel responded.
It pointed to the 2011 opinion in Pickard v. Department of Justice, and said:
“[W[e ruled that an agency is not precluded from withholding information pursuant to an exemption that otherwise applies, even if that information is officially acknowledged or officially confirmed.”
The opinion in that case, by Judge (now Senior Judge) Barry G. Silverman, says:
“We hold today that because the government officially confirmed Skinner’s status as an informant in open court in the course of official proceedings, the government cannot continue to “neither admit nor deny” Skinner’s informant status in response to a FOIA request. This is not to say that all documents related to Skinner are subject to disclosure. We simply hold that since Skinner has already been officially identified as an informant by government counsel and agents, the cat is out of the bag and the government must proceed to the next step—provide an index of the documents it has and make whatever additional objections to disclosure it deems appropriate.”
Vaughn Index Submitted
Following issuance of that opinion, the government did provide a 113-page Vaughn Index (which derives its name from the 1973 D.C. Circuit opinion in Vaughn v. Rosen), accompanied by a declaration. Such an index is a privilege log with a description of each document withheld, the FOIA exemption that applies, and the need for nondisclosure.
District Judge Charles R. Breyer of the Central District of California declared the index to be “supremely unhelpful,” ordering that a new one be submitted for review by Magistrate Judge Nathanael M. Cousins.
Cousins said in a Feb. 19, 2015 order rejecting the index and declaration:
“Put simply, by using boilerplate language throughout the declaration—both to describe the contents of the document and to describe what exemptions apply—the government failed to sufficiently describe the information in the documents, and provide a “particularized explanation” of how disclosure would damage the interest protected by the claimed exemption….Consequently, Pickard has not had a meaningful opportunity to challenge the Vaughn Index exemptions.”
The government tried again, and Wednesday’s opinion observes:
“The most recent Vaughn index gave sufficient detail.”
At oral argument on Dec. 6, Judge Susan P. Graber expressed bewilderment as to what it is that Pickard is after. She said noted that Pickard knows the name of the informant, and commented:
“To say, ‘Well, I know his name, but tell me his name’ seems a bit odd. That’s just me, speaking about my own kind of reaction to it.”
“My client requested this information a decade ago. He has been stonewalled at every step of the way.”
(According to a Feb. 13 order by Breyer, Pickard sought “(1) Skinner’s criminal history (including records of arrests, convictions, warrants, or other pending cases), (2) records of all case names, numbers, and judicial districts where he testified under oath, (3) records of all monies paid in his capacity as a federal government informant, (4) all records of instances where the DEA intervened on his behalf to assist him in avoiding criminal prosecution, (5) all records of administrative sanctions imposed for dishonesty, false claims, or other deceit, (6) all records of any benefits of any nature conferred, (7) all records of deactivation as a confidential informant and the reasons for deactivation, and (8) all records concerning Skinner’s participation in criminal investigations.”)
Waiver of Contentions
Deputy Attorney General Ellen London of the Northern District of California expressed the view that Breyer correctly discerned other claims by Pickard to have been waived when he did not include them in a motion for partial summary judgment. Graber told her that seeking an adjudication of only some claims “happens a lot in civil litigation—and it doesn’t mean you’ve abandoned all your other claims.”
Wednesday’s opinion says:
“We conclude that the district court abused its discretion. The mere failure to seek summary judgment on all claims does not mean that a party abandons the remaining claims. Rather, it means (in the absence of some other indicator of failure to prosecute) simply that the party intends to go to trial on those claims because issues of fact remain.”
Also on the panel were Circuit Judge N. Randy Smith and District Judge Jennifer G. Zipps of the District of Arizona, sitting by designation.
The case is Pickard v. Department of Justice, No. 17-15945.
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