                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
HOWARD BLOOMGARDEN,                       )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )                  Civil Action No. 15-0298 (ESH)
                                          )
UNITED STATES DEPARTMENT                  )
OF JUSTICE,                               )
                                          )
      Defendant.                          )
_________________________________________ )


                          MEMORANDUM OPINION AND ORDER

       Howard Bloomgarden was tried and convicted in 2014 by a California jury of two counts

of first-degree murder and two counts of kidnapping for extortion. (See Pl.’s Mot. for Summ. J.

[ECF No. 17] at 9.) In his quest for a new trial, plaintiff asserts that Los Angeles County

prosecutors used evidence that he was fraudulently induced to proffer, and that documents

supporting this assertion may be in the possession of the Department of Justice (“DOJ”). (See id.

at 15 n.43, 34-36.) Plaintiff’s administrative demand for the documents—filed pursuant to

DOJ’s Touhy regulations, 28 C.F.R. §§ 16.21 et seq.—was formally denied by DOJ in April

2015. (See Ex. VV to Pl.’s Mot. for Summ. J. [ECF No. 16] at 2.) Plaintiff has thus filed this

suit under the Administrative Procedure Act, 5 U.S.C. § 706, arguing that the Touhy denial was

both arbitrary and capricious and contrary to plaintiff’s constitutional rights under Brady v.

Maryland, 373 U.S. 83 (1963). (See Compl. [ECF No. 1] ¶¶ 18-22.)

       Before the Court is plaintiff’s response to a show cause order as to why judgment should

not be entered against him. (See Pl.’s Show Cause Response [ECF No. 49].) The show cause
was issued after this Court reviewed the documents that were in any way relevant to the

Bloomgarden case—and also provided these same documents to the judge in the California

proceedings—but neither court found that the documents constituted Brady material. In his

response, plaintiff asks this Court to either (1) transmit the remaining undisclosed documents

(approximately 1,800 pages) to the California trial court, where they will be kept under seal

pending appellate proceedings, or (2) administratively close this action to allow the Court to

intervene in the event that the California courts seek additional documents in aid of the

resolution of Bloomgarden’s motion for a new trial. (See id. ¶¶ 8-9.) For the reasons that

follow, the Court will not transfer the remaining documents, but it will administratively close the

case and retain jurisdiction in the event that the California court wants to review additional

documents.


                                            ANALYSIS

       Plaintiff seeks to acquire documents from the disciplinary file of a former Assistant

United States Attorney (the “former AUSA”), who worked for DOJ in the Eastern District of

New York (“EDNY”) in the mid-1990s. (See Pl.’s Mot. for Summ. J. at 1, 10-11.) The

disciplinary file relates to his proposed termination, and it consists of a thirty-five page

disciplinary letter (the “Letter”), a table of contents, and 3,649 pages of supporting

documentation. (See Def.’s Mot. for Summ. J. [ECF No. 29-1] at 5.)

       Beginning in January 1995, the former AUSA was the lead prosecutor in a state / federal

investigation into certain drug-related crimes, including the kidnapping and murder of Peter

Kovach and Ted Gould, which eventually led to plaintiff accepting a guilty plea in the EDNY.

(Pl.’s Mot. for Summ. J. at 1, 7.) During the course of that investigation, plaintiff agreed with


                                                  2
the former AUSA to engage in proffer sessions with prosecutors, but only after being assured

that L.A. County prosecutors were “on board” with the agreement. (See id. at 2.) As such, the

proffer agreements included both the AUSA’s signature and a “/s/” symbol preceding the L.A.

prosecutor’s name, to indicate that the AUSA had signed on her behalf. (See Ex. G to Pl.’s Mot.

for Summ. J.) In relevant part, the proffer agreements read:

        (1) In any prosecution brought against [Bloomgarden] by the EDNY or the Los
        Angeles County District Attorney’s Office (“LACDA”), neither the EDNY nor
        the LACDA will offer into evidence in its case-in-chief or at sentencing any
        statements made by [Bloomgarden] at the meeting, except in a prosecution for
        false statements, obstruction of justice, or perjury.

        (2) Notwithstanding item (1) above: (a) the EDNY and the LACDA may use
        information derived directly or indirectly from the meeting for the purpose of
        obtaining leads to other evidence that may be used in any prosecution and
        sentencing of [Bloomgarden] by the EDNY or the LACDA . . . .

(Id.)

        Pursuant to these agreements, plaintiff offered inculpatory information, but later he was

told that the former AUSA lacked authorization to sign the agreements on behalf of the L.A.

County prosecutor. (See Pl.’s Mot. for Summ. J. at 3, 5.) 1 By this time, the former AUSA had

been removed from plaintiff’s case, and the EDNY U.S. Attorney’s Office had initiated

termination proceedings against him. (See id. at 4.) Upon taking over the case, the former

AUSA’s replacement repudiated any possible federal plea agreement or use of Bloomgarden as a

cooperating witness. (Id.) Plaintiff’s expectation of a plea agreement with L.A. County

prosecutors also never came to fruition—he ultimately pled guilty to federal charges and was




1
 The L.A. County prosecutor has since stated that she can no longer remember whether she
authorized the signature. (See Ex. FF to Pl.’s Mot. for Summ. J. [ECF No. 13] at 9.)

                                                 3
later transferred to an L.A. County jail in 2005 to face charges in the Kovach-Gould murders.

(See id. at 4, 7-8.)

        In pretrial proceedings in Los Angeles Superior Court before the Honorable Curtis

Rappe, Bloomgarden successfully argued for suppression of his federal plea agreement and

allocution, in which he had implicated himself in the Kovach-Gould murders. (See id. at 7-8.)

Judge Rappe found that Bloomgarden’s lawyers had rendered ineffective assistance of counsel

by failing to apprise him of his continued exposure to state murder charges. (See id. at 8; Ex. Y

to Pl.’s Mot. for Summ. J. [ECF No. 12] at 872, 947-48.) He also argued that the former

AUSA’s unauthorized signature warranted suppression of all evidence of prior bad acts that had

been derived from the proffer sessions. (See Pl.’s Mot. for Summ. J. at 8; Ex. FF to Pl.’s Mot.

for Summ. J. at 4-5.) Judge Rappe agreed in part, ruling that the prosecutors would be held to

the terms of the agreements that prohibited direct use of plaintiff’s statements against him, just as

if their predecessor’s signature had been authorized. (See id. at 17.) In other words, Judge

Rappe assumed that the former AUSA signed without authorization, and he gave plaintiff the

“benefit of [his] bargain” as a remedy. (See id.) Judge Rappe did leave open the possibility that

greater relief might be warranted if Bloomgarden could show a “scam operation” or “nefarious

plot” by state and federal prosecutors to defraud him. 2 (See id. at 17-18.) He also suggested that

if the AUSA’s disciplinary file showed that DOJ terminated him “because, voila, they had

evidence that he just scammed Mr. Bloomgarden,” then that could constitute Brady material.

(See id. at 16.)


2
 In effect, plaintiff seeks to be restored to the status quo ante, arguing that the government’s
alleged fraud vitiates the proffer agreements entirely, thus warranting suppression of even
derivative evidence that would have otherwise been admissible under the agreements. (See Ex.
FF to Pl.’s Mot. for Summ. J. at 15-18.)
                                                    4
       Given that opening, plaintiff now presses his claims before this Court. He filed a FOIA

case (12-cv-843) seeking the former AUSA’s disciplinary file, and this administrative Touhy

action seeking “[a]ll favorable, impeaching, mitigating, or exculpatory materials . . . including

under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and

their progeny, contained within” the same file. 3 (See Ex. SS to Pl.’s Mot. for Summ. J.) In an

accompanying letter, plaintiff clarified that he sought “evidence of prosecutorial misconduct or

fraud on the part of state or federal prosecutors” who investigated him, for use in defending

against the California charges. 4 (See id.) DOJ denied the Touhy request, citing the former

AUSA’s right to privacy under the Federal Privacy Act of 1974, 5 U.S.C. § 552a, and noting that

plaintiff had made “no showing that any statutory exceptions to the prohibition against disclosure

apply here.” (See Ex. VV to Pl.’s Mot. for Summ. J.) In response, plaintiff has argued that this

denial was both arbitrary and capricious and contrary to his constitutional rights under Brady.

(See Pl.’s Mot. for Summ. J. at 33-39.)

       The Court has already ruled that plaintiff can rely on Touhy procedures—and judicial

review of any Touhy denial under the APA—to seek Brady material. (See Nov. 4, 2015 Hearing

Tr. [ECF No. 37] at 11:2-10; see also Kasi v. Angelone, 300 F.3d 487, 506 (4th Cir. 2002)

(“[T]he Administrative Procedure Act provides an appropriate procedure for judicial review of a


3
  The so-called Touhy action derives from the Supreme Court’s decision in United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951). That decision affirmed DOJ’s authority under the federal
Housekeeping Statute, now codified at 5 U.S.C. § 301, to promulgate regulations governing
requests for the disclosure of documents within DOJ’s custody. See Touhy, 340 U.S. at 468-69.
When an agency denies an administrative demand made pursuant to these Touhy regulations, the
denial is reviewable under the APA. See Houston Bus. Journal, Inc. v. Office of Comptroller of
Currency, U.S. Dep’t of Treasury, 86 F.3d 1208, 1212 (D.C. Cir. 1996).
4
 For purposes of this discussion, the Court assumes that evidence of prosecutorial misconduct is
producible under Brady.
                                                5
decision by a federal agency to withhold investigation materials from a state criminal defendant,

in which the state criminal defendant can proffer any perceived rights to the file materials under

the constitutional principles set forth in Brady and its progeny.”). It also ruled that the Privacy

Act would be no impediment to disclosure if plaintiff could show a constitutional right to the

material under Brady. (See Nov. 4, 2015 Hearing Tr. at 10:14-15.) However, the Court also

recognized the inherent difficulty of a federal court making Brady determinations with regard to

a state trial over which it did not preside. (See id. at 6:22-7:3.)

        The Court reviewed in camera the Letter, the table of contents, and any supporting

exhibit that mentioned any of Bloomgarden’s co-defendants, but it did not find any documents

that implicated Brady. (See Mar. 4, 2015 Hearing Tr. [ECF No. 45, Case No. 12-cv-843] at

37:21-22; Nov. 4, 2015 Hearing Tr. at 14:24-15:20; 16:24-17:10.) Nevertheless, out of an

abundance of caution, the Court obtained the parties’ agreement to send all conceivably relevant

documents to Judge Rappe under seal, so that he could determine whether any should be

produced to Bloomgarden. (See Nov. 4, 2015 Hearing Tr. at 20:18-21:10; 24:16.) As part of

that agreement, Judge Rappe would disclose to plaintiff any Brady material he identified (see id.

at 10:20-11:1), and in return, plaintiff agreed, among other things, to forego his remaining Touhy

claims. (See id. at 20:18-21:10; see also Pl.’s Show Cause Reply [ECF No. 51] ¶ 2). Plaintiff

also agreed to seek return of the documents to this Court at the close of proceedings in

California. (See Jan. 5, 2016 Hearing Tr. at 5:10-19.) Finally, when mailing the documents to

California, the Court informed Judge Rappe that it was willing to send him any other documents

listed in the table of contents that he wanted to review. (See Ex. A to Def.’s Mot. for

Clarification [ECF No. 84-1, Case No. 12-cv-843].) However, no such request has been

received.
                                                   6
       At a January 22, 2016 hearing, Judge Rappe stated that the documents he reviewed were

“very general and conclusory and [he] find[s] no Brady material in that.” (Ex. A to Pl.’s Show

Cause Response [ECF No. 49-1] at 6210:23-24; see id. at 6215:15-16 (Judge Rappe: “No, I’m

not going to release anything from the 35-page letter or the exhibits.”).) This finding confirmed

the Court’s tentative ruling, particularly because plaintiff’s name was not mentioned anywhere in

the disciplinary file. (See Nov. 4, 2015 Hearing Tr. at 19:21-20:11; see also Luczynski/Gerson

Aff. [ECF No. 102-1, Case No. 12-cv-843] ¶ 3 (affirming that any document relating to plaintiff

or any of his co-defendants has been produced either to plaintiff or the Court).) Moreover, the

Court has reviewed in camera every document that makes any mention of Bloomgarden’s co-

defendants, and there is no suggestion of prosecutorial misconduct in these documents either. 5

However, Judge Rappe did allow that his ruling could change if Bloomgarden’s forthcoming

motion for a new trial were to persuade him that Bloomgarden is entitled to greater relief than he

has already received. (See Ex. A to Pl.’s Show Cause Response at 6211:18-26, 6217:12-22.)

       Accordingly, this Court ordered plaintiff to show cause as to why judgment should not be

entered against him. (See Feb. 3, 2016 Minute Order.) Plaintiff’s response emphasizes that

Judge Rappe’s ruling is only tentative. (See Pl.’s Show Cause Response ¶ 4.) He also argues

that, even if the tentative Brady ruling is not reversed, the Court should transmit to Judge Rappe

the approximately 1,800 pages of documents in the disciplinary file that were not produced to




5
  In total, the Court and Judge Rappe have reviewed the Letter, the table of contents, and six
supporting documents from the disciplinary file. (See Nov. 4, 2015 Hearing Tr. at 26:3-8.) DOJ
later submitted for in camera review seven additional pages that mentioned in passing
Bloomgarden’s co-defendants. As the Court informed the parties in a January 11, 2016 email,
none of the later-submitted pages could even remotely be considered Brady material in plaintiff’s
California trial.
                                                7
plaintiff in his related FOIA case in order to preserve them for a potential California appeal. 6

(See id. ¶¶ 4-5, 8.) In the alternative, he asks the Court to administratively close this action but

allow it to be re-opened in the event that a California court requests further documents. (See id. ¶

9.) DOJ objects to both requests and argues that judgment should now be entered in its favor.

(See Def.’s Objection [ECF No. 50] at 1-2.) Bloomgarden responds that DOJ is not entitled to

judgment in its favor, arguing primarily that Judge Rappe has not definitively ruled and has left

open the possibility of seeking additional documents. (See Pl.’s Reply Br. ¶¶ 2-3.) He also

seems to argue that he did not waive his other Touhy argument—that the denial was arbitrary and

capricious—as part of the agreement that was reached with the Court at the hearing on

November 4, 2015. (See id. ¶ 2.)

       While the Court does not necessarily agree with Bloomgarden’s interpretation of the

agreement that was reached in open court, especially with respect to what issues remain to be

decided and by which court, it does agree that it is not appropriate at this time to enter final

judgment on defendant’s behalf given Judge Rappe’s reservation of a final ruling. (See Ex. A to

Pl.’s Show Cause Response at 6210:25-26.) Nor is it necessary or sensible to transfer to Judge

Rappe the 1,800 pages of documents that have not been produced to plaintiff or reviewed by this

Court or the California court. This case can only be ultimately determined by a federal court in

this jurisdiction, and it was never this Court’s intent to burden the state court with voluminous



6
 In the FOIA case, the Court has already ruled that the Letter is protected from disclosure under
5 U.S.C. § 552(b)(6) (see Feb. 5, 2016 Mem. Op. [ECF No. 106, Case No. 12-cv-843]), but it
ordered production of all public documents (approximately 1,800 pages) including those
originally filed under seal. (See Nov. 4, 2015 Minute Order; Jan. 5, 2016 Order [ECF No. 100,
Case No. 12-cv-843]). Furthermore, the Court has ordered DOJ to provide a Vaughn Index
detailing the remaining 1,800 undisclosed pages on or before April 1, 2016. (See Feb. 17, 2016
Order [ECF No. 110, Case No. 12-cv-843].)
                                                8
records. As correctly observed by Judge Rappe, “I’m not going to start delving into additional

documents. That's really not my role.” (See id. at 6226:5-6.)

        At this time, however, the Court is willing to administratively close this case but retain

jurisdiction in the event that Judge Rappe is persuaded to change his mind and request additional

material relevant to either the motion for new trial or to sentencing. Defendant will retain all

documents from the disciplinary file that have not been produced to plaintiff pending further

order of this Court, and plaintiff shall notify this Court as soon as Bloomgarden has been

sentenced in California. At that time, it will be determined what further action, if any, is

necessary in order to terminate this case.

        In light of the foregoing, it is hereby

        ORDERED that plaintiff’s request to transfer the remaining undisclosed documents to

Judge Rappe is DENIED. It is further

        ORDERED that plaintiff’s request that the Court administratively close this action is

GRANTED IN PART, to the extent that this Court will retain jurisdiction at least until such

time as Mr. Bloomgarden is sentenced. This will ensure that any arguably Brady documents that

are requested by Judge Rappe will be provided accordingly. It is further

        ORDERED that plaintiff shall notify the Court as soon as he has been sentenced in

California. It is further

        ORDERED that defendant shall retain all remaining undisclosed documents in the

disciplinary file pending further order of the Court. It is further

        ORDERED that the Clerk shall administratively close this case forthwith pending further

order of the Court.



                                                  9
                                       /s/
                           ELLEN SEGAL HUVELLE
                           United States District Judge

Date: March 2, 2016




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