The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff Terrence Battiste commenced the instant action pursuant to section 706 of the Administrative Procedure Act ("APA") challenging the decision of the United States Attorney's Office (USAO) not to produce documents or make Department of Justice employees available to testify in response to a subpoena issued in connection with a state criminal proceeding. Presently before the Court are the parties' cross-motions for summary judgment pursuant to Fed. R. Civ. P. 56.
a. Underlying Criminal Case
In March1998, Plaintiff Terrence Battiste was sentenced to 41 months in federal prison for possession with the intent to distribute cocaine. Approximately three and one-half years later, while on supervised release, Plaintiff was stopped by the Troy Police Department ("TPD") for a traffic violation. On November 9, 2001, Plaintiff advised his probation officer of the charges and that he had unpaid traffic fines. Plaintiff indicated that he could not obtain his driver's license until he paid some of those fines.
Shortly thereafter, Plaintiff encountered his wife's cousin, Wesley Reed. Reed advised Plaintiff that a marijuana dealer owed him money. Reed offered Plaintiff $300 to accompany Reed to assist in retrieving the money. Plaintiff agreed. Reed sent Bryan Berry, Alyson Boyd and Plaintiff to to recover the money. The three men entered the dealer's apartment and took several pounds of marijuana.
On January 26, 2002, Tramaine Hill, the half-brother of Samuel Holly, reported to the TPD that he found the bodies of Holley and Holley's girlfriend, Arica Schneider, in their apartment in Troy, New York.
On March 10, 2005, Plaintiff was arrested by the TPD. Plaintiff contends that the arrest was the result of a warrant issued by Magistrate Judge David Homer and an interrogation earlier that day that may have involved federal law enforcement officers. During an interrogation after his arrest, Plaintiff admitted to the robbery of the marijuana dealer. Plaintiff denied any involvement in the murders of Holley and Schneider.
In a complaint dated March 10, 2005, Plaintiff was charged with violating the Hobbs Act. The complaint was supported by the affidavit of Special Agent Susan Aiken, who stated that she obtained information from a reliable confidential informant that Plaintiff was a member of a criminal gang who, from the summer of 2001 through the winter of 2001-2002, planned and committed a series of robberies of drug dealers in the Albany/Troy areas.
The federal complaint was prosecuted by Assistant United States Attorney William Pericak ("AUSA Pericak"). AUSA Pericak admitted that the primary aim of the investigation was to solve the double murder. According to AUSA Pericak, "the way we set about trying to do that was we looked at people who he had information had committed robberies of drug dealers in Troy, because the double homicide involved a drug dealer. . . ."
The United States entered into a cooperation agreement with Plaintiff. It is alleged that AUSA Pericak was negotiating a plea agreement with Plaintiff in exchange for his cooperation in the investigation of the murders. Ultimately, Plaintiff entered a guilty plea to possessing with the intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(b)(1)(D). The factual basis for the plea was the robbery of the marijuana dealer. In August 2006, Plaintiff was sentenced to 79 months incarceration. Plaintiff was incarcerated when, in July 2007, he was indicted by the State of New York for the murders of Holley and Schneider.
Plaintiff's defense counsel was informed by then Rensselaer County Deputy District Attorney Dan Hanlon that there were three "phases" to the case against Plaintiff: (1) admissions made by Plaintiff to jailhouse informants; (2) non-jailhouse informant information; and (3) eyewitness testimony placing Plaintiff as one of the persons outside the crime scene.
In the New York State criminal case against Plaintiff, the judge granted the request for: (1) a hearing pursuant to People v. Singer, 44 N.Y.2d 241, (1978), inquiring into the delay between the commission of the homicides and the indictment;*fn1 (2) a hearing pursuant to People v. Huntley, 15 N.Y.2d 72 (1965), regarding the admissibility of statements allegedly given by Plaintiff to the police; and (3) an audibility hearing concerning certain audio and videotapes. The court also ordered a hearing to determine whether the jailhouse informants were acting as agents of the state.
b. Procedural History of the Instant Proceedings
On July 22, 2008, Plaintiffs served subpoenas seeking documents and testimony from: (1) the United States Probation Office for the Northern District of New York; (2) AUSA Pericak; and (3) AUSA Daniel Hanlon. The subpoenas were served in connection with a criminal proceeding (murder) against Plaintiff in the State of New York.
By letter dated July 24, 2008, the USAO advised Plaintiff that it could not seek authorization to comply with the subpoenas absent compliance with the applicable regulations found at 28 C.F.R. § 16.21 - 16.29. Accordingly, Plaintiff submitted an application under the applicable regulations. Acting United States Attorney Andrew Baxter reviewed Plaintiff's application and determined that the information sought was not subject to release under applicable Department of Justice regulations. Baxter concluded that:
The subpoenas demand investigatory records complied for law enforcement purposes. The disclosure of such records could interfere with law enforcement proceedings by, e.g. prematurely disclosing the identity of witnesses to conduct of Battiste and Berry that was not within the ambit of the federal charges pursued, or by revealing the investigative techniques pursued, thereby impairing their future effectiveness. . . .
Some of this investigatory information . . . would come under one of the categories set forth in 28 C.F.R. § 16.26(b), and [requires] . . . review from either the Deputy Attorney General or the Associate Attorney General. . . .
Some of the information demanded (e.g. grand jury transcripts) would not be appropriate for disclosure . . . under 28 C.F.R. § 16.26(b)(1) and Fed. R. Crim. P. 6(e). . . . [A] United States Attorney is not authorized to disclose such information . . . without review from either the Deputy Attorney General or the Associate Attorney General. . . . [Plaintiff] received some of those same materials as discovery in connection with [his] federal prosecution. . . .
[T]he witness statements, grand jury transcripts, witness credibility information, and documentary evidence relevant to both the federal and state investigations . . . that were in the custody and control of the U.S. Attorney's Office . . . and the Federal Bureau of Investigation, have been provided by the [U.S. Attorney's Office] to the Rensselaer Coutny District Attorney's Office. I determined that . . . such information was more appropriately disclosed through the DA, pursuant to the rules of procedure ...