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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ANTONIO GUTIERREZ, )

)

Plaintiff, )

)

v. ) Civil Action No. 20-1524 (BAH)

)

EXECUTIVE OFFICE FOR )

UNITED STATES ATTORNEYS, )

)

Defendant. )

MEMORANDUM OPINION

Antonio Gutierrez (“plaintiff”) brings this action under the Freedom of Information Act 

(“FOIA”), see 5 U.S.C. § 552, to obtain records allegedly maintained by the Executive Office for 

United States Attorneys (“EOUSA”), a component of the United States Department of Justice 

(“DOJ” or “defendant”). Pending before the Court is Defendant’s Motion for Summary 

Judgment, ECF No. 14, which, for the reasons discussed below, is granted.

I. BACKGROUND

Plaintiff was convicted in the United States District Court for the District of New Mexico 

on three charges of production of child pornography and sentenced to thirty years in prison.

Def.’s Mem. of P. & A. in Support of Mot. for Summ. J. (“Def.’s Mem.”) at 2 n.1, ECF No. 14-

1; Def.’s Mot, Ex. 2, Decl. of Marisa Ong (“Ong Decl.”) ¶ 1, ECF No. 14-4; see Gutierrez v. 

United States, No. 14-2129 (10th Cir. Sept. 14, 2015) (affirming conviction of three counts of 

producing child pornography pursuant to 18 U.S.C. §§ 2251(a) and 2256 and 360-month prison 

sentence). Thereafter, by letter dated October 2, 2019, plaintiff sent a request to EOUSA listing 

the following nine items of interest: 
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1. INFORMATION OF WHERE MY “COMPUTER” WAS 

MADE (LAP TOP) SUCH AS CHINA, INDIA, ETC.

2. INFORMATION OF WHERE MY “CELL PHONE” WAS 

MADE SUCH AS CHINA, INDIA ETC.

3. INFORMATION OF WHERE VICTIMS CELL PHONE WAS 

MADE SUCH AS CHINA, INDIA ETC.

4. INFORMATION OF “COMPUTER FORENSIC ANALYSIS” 

REPORT, IN REGARDS TO DELETED FILES IN MY 

COMPUTER (LAP TOP)

5. TYPED TRANSCRIPT OF “TEXTING MESSAGES” 

BETWEEN MYSELF AND JANE DOE FROM AUGUST 1, 

2011 THRU NOVEMBER 7, 2011

6. NAME OF LOCATIONS OF PICTURES OF VICTIM 

CROSSING INTERSTATE AND FOREIGN COMMERCE.

7. TYPED TRANSCRIPT OF VIDEO TAPED INTERVIEWS OF 

VICTIM BY APD AND CPS

8. TYPED TRANSCRIPT OF VIDEO TAPED INTERVIEW OF 

ELENA PICKUP BY APD AND CPS

9. LISTING OF ALL EVIDENCE SEIZED UNDER VAUGHN 

INDEX

Def.’s Statement of Undisputed Material Facts (“Def.’s SMF”), Attach. A at 2-3 (emphasis in 

original), ECF No. 14-2. EOUSA acknowledged, by letter dated October 22, 2019, receipt of 

plaintiff’s request, which was assigned tracking number EOUSA 2020-000170. Def.’s SMF ¶ 2; 

see id., Attach. B. EOUSA’s letter alerted plaintiff to the possibility that he may incur fees 

associated with processing his request, but that the agency would provide two hours of search 

time and 100 pages of records at no cost to plaintiff.

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 See id., Attach. B at 1. EOUSA suggested 

that plaintiff modify his request to narrow its scope, thereby reducing any potential fees. See id.

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 “No fee may be charged . . . for the first two hours of search time or for the first one hundred 

pages of duplication.” 5 U.S.C. § 552(a)(4)(A)(iv)(II).
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Since plaintiff had been tried and convicted in the District of New Mexico, EOUSA staff 

referred the matter to the United States Attorney’s Office for the District of New Mexico

(“USAO-NM”). See Def.’s SMF ¶¶ 3-4. Marisa Ong, the Assistant United States Attorney who 

prosecuted plaintiff’s criminal case, see id. ¶¶ 5-6, conducted a search for records responsive to 

plaintiff’s FOIA request and supplied EOUSA’s supporting declaration, see Ong Decl. ¶ 1; 

Def.’s SMF ¶¶ 5-6. The declarant was “familiar with the gathering and handling of certain items 

of evidence . . . obtained from the Federal Bureau of Investigation (‘FBI’) during its 

investigation and [the USAO-NM’s] prosecution of [p]laintiff, as well as the disposition of the 

evidence following the trial.” Ong Decl. ¶ 1. 

The declarant reviewed the criminal case’s docket entries on the Court’s Public Access 

Computer Electronic Records System (“PACER”) and ordered the closed trial file. Def.’s SMF ¶ 

8; Ong Decl. ¶ 4. Next, she determined that USAO-MN did not have information responsive to 

Items One, Four, Five, Six, Seven and Eight of plaintiff’s FOIA request.

As to Item One, which asked where plaintiff’s computer was made, see SMF ¶ 7, the 

declarant determined that this “computer, which was seized by the FBI during [its] investigation, 

was returned to the FBI because it contained contraband (e.g., images of child pornography),” id.

¶ 12. Similarly, the “Computer Forensic Analysis Report” plaintiff sought in Item Four, believed 

to be “the original Forensic Too[l] Kit report,” “would have been returned . . . to the FBI for 

safekeeping and/or destruction, as is the common practice in the District of New Mexico.” Ong 

Decl. ¶ 9; see Def.’s SMF ¶¶ 9, 18.

Items Five, Seven and Eight sought transcripts of a videotaped interview. See SMF ¶ 7. 

The declarant “did not recall receiving those transcripts, and they were not introduced into 

evidence at Plaintiff’s trial.” Id. ¶ 10. She did locate a portion of the trial transcript containing 
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testimony of a case agent responsive to Items Two and Three of the request. Id. ¶ 13. “[S]he 

printed that portion of the transcript,” id., and provided two pages of records to the agency’s 

FOIA contact, id. ¶ 21. 

Meanwhile, by letter dated November 4, 2019, plaintiff modified his FOIA request, see 

id. ¶ 14, limited to the following items:

Request 1: Exculpatory evidence negates defendant’s specific 

intent, 18 U.S.C. § 2251(a), -- defendant acted for purpose of 

producing . . . Request 2: Computer Forensic Evidence Lab Report, 

of Ms. Doe photo description between May 2nd to Aug. 3rd, of 

2011, sending Selfies from phone to defendant. Photo 1 – Doe in 

bathroom standing in underwear garments. Photo 2 – Doe in 

bathroom, partially nude. Photo 3 – Doe in bathroom, fully nude. 

All Selfies were dome [sic] alone.

Id., Attach. D. Plaintiff also instructed that EOUSA “not search beyond two hours [or] duplicate 

beyond 100 pages.” Id.

Request 2 of the modified request corresponded with Item Four of the original FOIA 

request. Def.’s SMF ¶ 17. The “Computer Forensic Evidence Lab Report” plaintiff requested 

was “a record generated by the Regional Computer Forensic Laboratory which assists the FBI 

with investigations dealing with computer forensic evidence.” Id. As stated above, the report 

had been returned to the FBI. Id. ¶ 18. Likewise, the photographs plaintiff requested originated 

from and were returned to the FBI “after the expiration of time for [p]laintiff to file a notice for 

direct appeal and motions for collateral attacks on his convictions.” Id. ¶ 19. 

Lastly, the index to which plaintiff referred in Item Nine of the original request was a list 

of items seized by the FBI prepared by FBI Special Agent Victoria Vaughn. Def.’s SMF ¶ 11. It 

“most likely could be found in [the] criminal case file.” Ong Decl. ¶ 16. By the time the 

declarant received the closed criminal case file, however, the two-hour search time had expired. 

See id. 
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The only responsive record located was the “portion of the trial transcript . . . obtained 

from PACER” addressing Items Two and Three of the original FOIA request. Id. ¶ 15. EOUSA 

released this portion of the transcript to plaintiff on January 30, 2020. See Def.’s SMF ¶¶ 21-22; 

see id., Attach. E.

The declarant averred that there are no “other locations within the USAO-NM where 

records that might be responsive to [p]laintiff’s requests are likely to be located,” and she knows 

of no “other method or means by which a further search could be conducted that would likely 

uncover additional responsive records.” Ong Decl. ¶ 17.

II. LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). The party seeking summary judgment “bears the initial responsibility of informing the 

district court of the basis for its motion, and identifying those portions of the pleadings, . . . 

together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue 

of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks 

omitted). An agency may meet its burden solely on the basis of affidavits or declarations, see 

Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999), as long as they 

“describe the documents and the justifications for nondisclosure with reasonably specific detail, 

demonstrate that the information withheld logically falls within the claimed exemption, and are 

not controverted by either contrary evidence in the record [or] by evidence of agency bad faith,” 

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (footnote omitted). 
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III. DISCUSSION

“An agency fulfills its obligations under FOIA if it can demonstrate beyond material 

doubt that its search was reasonably calculated to uncover all relevant documents.” ValenciaLucena, 180 F.3d at 325 (citations and internal quotation marks omitted). To this end, the 

agency may present and “[t]he court may rely on a ‘reasonably detailed affidavit, setting forth 

the search terms and the type of search performed, and averring that all files likely to contain

responsive materials (if such records exist) were searched.’” Mobley v. CIA, 806 F.3d 568, 580-

81 (D.C. Cir. 2015) (quoting Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). A 

search need not be exhaustive, see Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 

1995), and it need not be perfect, see DiBacco v. U.S. Army, 795 F.3d 178, 191 (D.C. Cir. 2015) 

(“[A]dequacy – not perfection – is the standard that FOIA sets.”). Rather, the search must be 

reasonable depending on the circumstances of a particular case. See Weisberg v. U.S. Dep’t of 

Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). 

Plaintiff argues that the search was inadequate because EOUSA failed to produce three 

items. See generally Pl.’s Response to Doc. #14 (“Pl.’s Opp’n”) at 1-2, ECF No. 16. He 

complains that the EOUSA did not respond to Items Seven and Eight of the original request for 

transcripts of videotaped interviews, id. at 1, even though the videos “were introduced at trial in 

form of a video having no sound or audio, for the jury to watch (Sound deliberately turned off by 

prosecution),” id. at 2. Nor did EOUSA respond to Request 1 of the modified request for 

“[e]xculpatory evidence” to “negate[] . . . specific intent” to commit a crime, under 18 U.S.C. 

§ 2251(a), which provides:

Any person who employs, uses, persuades, induces, entices, or coerces any minor 

to engage in, or who has a minor assist any other person to engage in, or who 

transports any minor in or affecting interstate or foreign commerce, or in any 

Territory or Possession of the United States, with the intent that such minor engage 
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in, any sexually explicit conduct for the purpose of producing any visual depiction 

of such conduct or for the purpose of transmitting a live visual depiction of such 

conduct, shall be punished . . . , if such person knows or has reason to know that 

such visual depiction will be transported or transmitted using any means or facility 

of interstate or foreign commerce or in or affecting interstate or foreign commerce 

or mailed, if that visual depiction was produced or transmitted using materials that 

have been mailed, shipped, or transported in or affecting interstate or foreign 

commerce by any means, including by computer, or if such visual depiction has 

actually been transported or transmitted using any means or facility of interstate or 

foreign commerce or in or affecting interstate or foreign commerce or mailed.

Id. Neither challenge has merit.

EOUSA no longer is obligated to respond to plaintiff’s original FOIA request, which 

included Items Seven and Eight for transcripts of videotaped interviews, because plaintiff 

modified the request and eliminated these items. See Dillon v. Dep’t of Justice, 444 F. Supp. 3d 

67, 84 (D.D.C. 2020) (concluding that plaintiff who narrowed the scope of initial FOIA request 

could not “revert back” to the “initial, broader scope” of initial request). In any event, EOUSA 

adequately explains why it did not, and could not, produce transcripts. 

“Agencies must read FOIA requests ‘as drafted.’” Amadis v. U.S. Dep’t of State, 971 

F.3d 364, 370 (D.C. Cir. 2020) (quoting Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984)). 

Here, plaintiff did not request videotapes, he requested transcripts of the videotaped interviews

which, according to EOUSA’s declarant, “were not introduced into evidence at trial.” Ong Decl. 

¶ 6. Further, the declarant explained, she did not “believe transcripts of the records [p]laintiff 

requested for Items . . . Seven and Eight were ever obtained by” USAO-MN. Id. “[W]hen an 

agency does not possess or control the records a requester seeks, the agency’s non-disclosure 

does not violate FOIA because it has not ‘withheld’ anything.” DiBacco, 795 F.3d at 192 (citing 

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980)).

Plaintiff is no more successful in challenging EOUSA’s failure to respond to Request 1 of 

the modified FOIA request. “The plain language of FOIA makes clear that the agency’s 
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obligation to search for responsive records is triggered when the records sought are ‘reasonably 

describe[d].’” Ecological Rights Found. v. EPA, No. 19-CV-980, 2021 U.S. Dist. LEXIS 27748, 

at *22 (D.D.C. Feb. 13, 2021) (quoting 5 U.S.C. § 552(a)(3)(A)). As defendant observes, 

Request 1 “does not identify a document or category of documents that EOUSA could easily 

discern from this request.” Def.’s Reply in Support of Mot. for Summ. J. at 3 n.4, ECF No. 17. 

EOUSA must “construe a FOIA request liberally,” Nation Magazine v. U.S. Customs Serv., 71 

F.3d 885, 890 (D.C. Cir. 1995) (citing Truitt v. U.S. Dep’t of State, 897 F.2d 540, 544-45 (D.C. 

Cir. 1990)) (additional citations omitted), but EOUSA cannot be expected to divine which 

records in its possession, if any, would qualify as “exculpatory evidence.” 

“The fact that the search failed to locate . . . responsive records did not automatically 

render the search inadequate.” Francis v. U.S. Dep’t of Justice, Office of Info. Policy, No. 17-

5233, 2018 U.S. App. LEXIS 17036, at *2 (D.C. Cir. June 20, 2018) (per curiam) (citing 

Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)). Moreover, plaintiff 

cannot fault EOUSA for discontinuing its search efforts when, at plaintiff’s request, it ceased its 

efforts after having expended the two-hour limit on searches provided at no charge. 

IV. CONCLUSION

The record demonstrates that EOUSA conducted a reasonable search for records 

responsive to plaintiff’s FOIA request, as modified, and complied with its FOIA obligations. 

EOUSA is therefore entitled to summary judgment. An Order consistent with this 

Memorandum Opinion will be issued contemporaneously. 

DATE: April 27, 2021 /s/ Beryl A. Howell

BERYL A. HOWELL

Chief Judge

United States District Court for the District of Columbia