U.S.

Department of Justice

United States Attorney

Eastern District of New York
271 Cadman Plaza East-7th Floor
Brooklyn, New York 11201
October 13, 2015
By Email and First-Class Certified Mail
Louis Flores
34-21 77th Street, Apt. #406
Jackson Heights, New York 11372
Re:

Louis Flores v. United States Department of Justice

No. 15-CV-2627 (Gleeson, J.) (Mann, M.J.)

Dear Mr. Flores:

On behalf of Defendant United States Department of Justice (DOJ or Defendant), we
write in furtherance of Judge Manns having encouraged Defendant during the September 16,
2015 conference to voluntarily search the files of Main Justice and to produce any written
guidelines for prosecution of activists, and to consider voluntarily producing at least some of
the documents listed on the index served on defense counsel today by Plaintiff, although such
documents are not responsive to your Freedom of Information Act (FOIA) request that is the
subject of this action. (See Dkt. No. 14).
First, as discussed during the September 16, 2015 conference, enclosed please find the
Declarations of Karin Kelly and Princina Stone, describing the searches for records responsive to
your April 30, 2013 FOIA request.
Second, as you are aware, the DOJ Executive Office for the United States Attorneys
(EOUSA) responded to your April 30, 2013 FOIA request and informed you that a search at
the United States Attorneys Office for the District of Columbia (USAO-DC) did not locate any
documents responsive to your request. Nevertheless, because your FOIA request specifically
sought information relating to the prosecution of Daniel Choi, EOUSA made a discretionary
release of certain documents publicly available relating to the Choi prosecution. EOUSA has not
withheld any records that are responsive to your request.
Third, in regard to the Courts encouraging Defendant to voluntarily search the files of
Main Justice for any written guidelines for prosecution of activists[,] the DOJ Criminal
Division in Washington, D.C., has voluntarily agreed to search the Office of the Assistant
Attorney General for any written guidelines concerning the prosecution of activists for the
limited purpose of this litigation. 1 We will inform you of the results of that search once it is
1

The Criminal Division is a component of DOJ and is tasked with, among other
responsibilities, formulating and implementing criminal enforcement policy. For more
information, please see: http://www.justice.gov/criminal.

Louis Flores
October 13, 2015
Page 2
completed. However, DOJ expressly reserves its arguments that your April 30, 2013 FOIA
request was directed solely to EOUSA, which is the component of DOJ responsible for
responding to FOIA requests on behalf of itself and the USAOs, and that EOUSA properly
searched for records responsive to your request in the files of USAO-DC, the Office that
prosecuted Daniel Choi. 2 Consequently, any guidelines that may be located by the DOJ
Criminal Division would not be responsive to your FOIA request that is the subject of this
action.
Fourth, in regard to your September 16, 2015 Index of discovery demands,
Defendant maintains its objections to the conducting of discovery (which were sustained by the
Court) and to any attempt to expand the scope of your FOIA request that is the subject of this
action. Nonetheless, in an effort to accommodate the Courts concerns about the potential for
unnecessary motion practice, Defendant states that it is able to provide the documents and
information listed below. The documents provided are based on a good faith effort to construe
your requests (some of which are ambiguous) as broadly as possible.

Your Index Reference Nos. 5 & 6 Requests for the Myers memo (email) and
Government Exhibit 25. The email (Government Exhibit 25), which was
referenced in memoranda provided in EOUSAs discretionary release, was
publicly filed with both the United States District Court for the District of
Columbia and the United States Court of Appeals for the District of Columbia and
would have been provided to you following the parties telephone conference on
September 1, 2015 had you not declined the undersigneds offer to provide the
appendices referenced in the discretionary release. Defendant notes that this
document is correspondence between an individual at the Solicitors Office of the
United States Department of the Interior and individuals at the National Park
Service (NPS) and is not DOJ guidance and, thus, not responsive to your FOIA
request. Nevertheless, enclosed please find, at Tab A, a copy of the Myers
memo (email), which was labeled as Government Exhibit 25 during the Choi
prosecution.

Your Index Reference Nos. 5 & 6 Requests for the Capt. Guddemis
November 22 email and Government Exhibit 24. This email (Government

As discussed during the September 16, 2015 conference, DOJ is comprised of multiple
components, which processes its own records in response to FOIA requests. A FOIA request to
components of DOJ must be made to the FOIA office of that component. See 28 C.F.R. 16.3;
Appx. 1 of Part 16; see also 5 U.S.C. 522(a)(3) (A FOIA request to an agency must be in
accordance with published rules stating the time, place, fees (if any) and procedures to be
followed.). There are different FOIA contacts for each component of DOJ and their contact
information may be found at: http://www.justice.gov/oip/find-foia-contact-doj/list. For further
information on submitting FOIA requests to DOJ and its components, please see
http://www.justice.gov/oip/make-foia-request-doj#2. Please note that DOJ cannot respond to
FOIA requests or provide information as to local law enforcement entities. (See, e.g., Your
Index Reference No. 20).

Louis Flores
October 13, 2015
Page 3
Exhibit 24) referenced in memoranda provided in EOUSAs discretionary release,
was publicly filed with the United States District Court for the District of
Columbia and would have been provided to you following the parties telephone
conference on September 1, 2015 had you not declined the undersigneds offer to
provide the appendices referenced in the discretionary release. Defendant notes
that this document consists of a forwarded email chain, involving individuals at
the NPS, the United States Park Police, the United States Secret Service, and the
United States Capitol Police. This document is not DOJ guidance and, thus, it is
not responsive to your FOIA request. Nevertheless, enclosed please find, at Tab
B, a copy of the Capt. Guddemis November 22 email, which was labeled as
Government Exhibit 24 during the Choi prosecution.

Your Index Reference No. 5 Request for pages 19, 22, and 24 of the Amicus
Curaie Brief of James E. Pietrangelo, II. On October 18, 2012, James E.
Pietrangelo, II, filed a brief with the United States District Court for the District of
Columbia in the Choi Prosecution. (See 1:10-mj-739-JMF at Dkt. No. 136
(D.D.C. Oct. 18, 2012)). The brief submitted to the Court on that date does not
include pages 19, 22, and 24. Rather, the document consisted only of 22 pages
and all 22 pages have been provided. (Pietrangelo refiled the brief on the same
dayat docket entry number 137and that version also does not have pages 19,
22, and 24.) Defendant notes that the brief is not responsive to your FOIA
request. Nonetheless, enclosed please find, at Tab C, copies of the two filed
versions of the brief, which have pages 19, 22, and 24 missing.

Your Index Reference Nos. 10 & 11 Requests for guidelines, if any, where the
USAO must seek approval by DOJ to prosecute activists and DOJ guidelines
that document the DOJs discretion to prosecute activists. This request, which is
beyond the scope of your April 30, 2013 FOIA request, is ambiguous.
Nevertheless, enclosed please find, at Tab D, a copy of Sections 2.000 and 65.000
of Title 9 of the United States Attorneys Manual, which are also available at:
http://www.justice.gov/usam/usam-9-2000-authority-us-attorney-criminaldivision-mattersprior-approvals; and http://www.justice.gov/usam/usam-9-65000protection-government-officials. Sections 9-65.880, -65.881, and -65.882 address
demonstrations involving foreign governments and foreign officials and section 965.811 discusses when a United States Attorney must involve the Criminal
Division of DOJ. Section 9-2.000, which does not address the prosecution of
activists or demonstrators, addresses the Authority Of The U.S. Attorney In
Criminal Division Matters/Prior Approvals. Thus, these documents are not
responsive to your FOIA request.

Your Index Reference Nos. 13 & 29 Requests for guidelines that inform how
the DOJ can investigate and prosecute journalists, even though activities of
protesters are protected by the First Amendment and guidelines that show how
the government balances the First Amendment rights, other Constitutional rights,
civil liberties, and other civil rights of activists against charges that the

Louis Flores
October 13, 2015
Page 4
government brings against activists. These requests, which are beyond the scope
of your April 30, 2013 FOIA request, are ambiguous. Nevertheless, enclosed
please find, at Tab E, copies of the following:
o Section 13.400 of Title 9 of the United States Attorneys Manual, also
available
at
http://www.justice.gov/usam/usam-9-13000-obtainingevidence#9-13.400;
o Section 1089 of the Criminal Resource Manual to the United States
Attorneys Manual regarding First Amendment Implications for 18
U.S.C. 373, 3 also available at http://www.justice.gov/usam/criminalresource-manual-1089-first-amendment-implications;
o Section 1105 of the Criminal Resource Manual to the United States
Attorneys Manual regarding The First Amendment Problems of Son of
Sam Laws, also available at http://www.justice.gov/usam/criminalresource-manual-1105-first-amendment-problems-son-sam-laws;
o Section 1625 of the Criminal Resource Manual to the United States
Attorneys Manual regarding First Amendment 18 U.S.C. 112, 4 also
available at http://www.justice.gov/usam/criminal-resource-manual-1625first-amendment-18-usc-112; and
o Memorandum from the Attorney General, dated January 14, 2015, the
subject of which is Updated Policy Regarding Obtaining Information
From, or Records of, Members of the News Media; and Regarding
Questioning, Arresting, or Charging Member of the News Media, also
available
at
http://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/01/14/revised_media_guidelines_0.pdf.
These documents do not concern protesters, activists, or demonstrators, but do
address the prosecution of members of the news media and/or implications of the
First Amendment in the prosecution of certain crimes. Thus, these documents are
not responsive to your FOIA request.

Your Index Reference No. 17 Request for DOJ guidelines that explain
surveillance of activists in the face of ban on racial profiling. This request,
which is beyond the scope of the April 30, 2015 FOIA request, is ambiguous.
Nevertheless, enclosed please find, at Tab F, copies of the following:
o U.S. Department of Justice, Guidance for Federal Law Enforcement
Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin,
Religion, Sexual Orientation, or Gender Identity, dated December 2014,
also
available
at
http://www.justice.gov/sites/default/files/ag/pages/attachments/2014/12/08

18 U.S.C. 373 governs the solicitation to commit a crime of violence.

18 U.S.C. 112 governs the protection of foreign officials, official guests, and
internationally protected persons.
4

Louis Flores
October 13, 2015
Page 5
/use-of-race-policy.pdf;
o Section 7.000 of Title 9 of the United States Attorneys Manual, also
available
at
http://www.justice.gov/usam/usam-9-7000-electronicsurveillance; and
o Section 1077 of the Criminal Resource Manual to the United States
Attorneys Manual regarding Electronic Surveillance, also available at
http://www.justice.gov/usam/criminal-resource-manual-1077-electronicsurveillance.
These documents do not concern protesters, activists, or demonstrators, but do
address racial profiling and/or electronic surveillance of individuals. Thus, these
documents are not responsive to your FOIA request.

Your Index Reference No. 19 Request for agency law that governs situations
where grand jury subpoenas are obtained. This request is beyond the scope of
your April 30, 2013 FOIA request and is ambiguous. Nevertheless, enclosed
please find, at Tab G, a copy of Section 11.000 of Title 9 of the United States
Attorneys Manual, also available at http://www.justice.gov/usam/usam-9-11000grand-jury. Section 9-11.000 discusses the DOJs policy on grand jury practice,
including the use of grand jury subpoenas, but makes no mention of activists or
protesters. This document is not responsive to your FOIA request.

Your Index Reference No. 21 Request for DOJ guidelines that show that law
enforcement have the authority to use force on activists, generally, leading up to
their arrests. This request is beyond the scope of your April 30, 2013 FOIA
request and is ambiguous. Nevertheless, we refer you to the website of the
National Institute of Justice, Office of Justice Programs, for further information
regarding police use of force: http://www.nij.gov/topics/law-enforcement/officersafety/use-of-force/Pages/welcome.aspx.

Your Index Reference No. 23 Request for any agency law or binding DOJ
legal opinion issued in respect of the prosecution of Lt. Choi based on
allegations that the DOJ mounts vindictive prosecution of activists, such as in
the case of Lt. Daniel Choi. With the EOUSAs discretionary release, certain
documents relating to the prosecution of Lt. Choi were provided to you, including
briefing on Chois attempt to assert as a defense selective/vindictive prosecution.
Please clarify if you would like a reproduction of all documents filed with the
Court that relate to Chois attempt to assert that defense.

Your Index Reference No. 28 Request for guidelines that show that the powers
of the USAOs and/or the DOJ to prosecute activists cannot be biased or
influenced by political overtones. This request is beyond the scope of your April
30, 2013 FOIA request and is ambiguous. Nevertheless, enclosed please find, at
Tab H, a copy of section 45.2 of Title 28 of the Code of Federal Regulations
governing Disqualification arising from personal or political relationship. This

Louis Flores
October 13, 2015
Page 6
document does not address the prosecution of activists, but sets forth when a DOJ
employee may not participate in a criminal investigation or prosecution due to a
personal or political relationship. Thus, it is not responsive to your FOIA request.
The information and documents discussed above are being provided in a good faith effort
to confer further with you, as the Court requested. Defendant expressly preserves any and all
objections to discovery in this matter and to each and every request made in your September 16,
2016 Index. Defendant further preserves any and all arguments to be raised in defense of this
litigation.
Thank you for your attention to this matter.
Very truly yours,
KELLY T. CURRIE
Acting United States Attorney
By:

Enclosures [by certified first-class mail only]

s/Rukhsanah L. Singh
RUKHSANAH L. SINGH
Assistant U.S. Attorney
(718) 254-6498
rukhsanah.singh@usdoj.gov