requests for return of the notes. Suits were filed by the various FOIA requesters against Kissinger, the Library of Congress, the Secretary of State, and the State Department, seeking enforcement of the FOIA requests and a declaratory judgment that the telephone notes were agency records that had been unlawfully removed and were being improperly withheld. The District Court ruled in the plaintiffs' favor as to the notes made while Kissinger was Secretary of State, but denied relief as to the notes made while he was Presidential Assistant, finding that the former notes were "agency records" subject to disclosure under the FOIA, and that Kissinger had wrongfully removed them from the State Department in violation of the Federal Records Disposal Act. An order was entered requiring the Library of Congress to return the Secretary of State notes to the State Department and requiring the Department to determine which of the notes are exempt from disclosure under the FOIA and to provide the required materials to the plaintiffs. The Court of Appeals affirmed.
1. The District Court had no authority to order transfer of the notes, including those made while Kissinger was Secretary of State, from the Library of Congress to the State Department at the behest of the named plaintiffs. Pp. 445 U. S. 146-155.
(a) No provision of either the Federal Records Act of 1950, which establishes a records management program for federal agencies, or the complementary Records Disposal Act, which provides the exclusive means for record disposal, expressly confers a right of action on private parties, nor can such a right of action be implied. The language of these Acts merely "proscribes certain conduct," and does not "create or alter civil liabilities," Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 444 U. S. 19, and the Records Act also expressly provides administrative remedies for violations of the Act. Moreover, the legislative history of the Acts confirms that congressional silence as to a private right of action was purposeful, indicating that their purpose was not to benefit private parties, but solely to benefit the agencies themselves and the Federal Government as a whole. Thus, regardless of whether Kissinger had violated these Acts, Congress has not vested federal courts with jurisdiction to adjudicate that question upon suit by a private party, such responsibility being vested in the administrative authorities. Pp. 445 U. S. 147-150.
records." Here, the State Department, a covered agency, has not "withheld" agency records within the meaning of the FOIA, since Congress did not mean that an agency improperly withholds a document that has been removed from the agency's possession prior to the filing of the FOIA request, the agency in such case having neither the custody nor control necessary to enable it to withhold. And an agency's failure to sue a third party to obtain possession is not a withholding under the Act. This conclusion that possession or control is a prerequisite to FOIA disclosure is reinforced by an examination of the Act's purposes, from which it is apparent that Congress never intended, when it enacted the FOIA, to displace the statutory scheme embodied in the Federal Records and Records Disposal Acts providing for administrative remedies to safeguard against wrongful removal of agency records as well as to retrieve wrongfully removed records. Pp. 445 U. S. 150-154.
(c) Under the circumstances of this case, where Kissinger had refused the Archivist's requests for return of the documents and he and the Library of Congress as his donee are holding the documents in question under a claim of right, the State Department cannot be said to have had possession or control of the documents at the time the requests were received, and therefore it did not withhold any agency records, an indispensable prerequisite to liability in a suit under the FOIA. Pp. 154-155.
2. Safire's request sought disclosure of documents that were not "agency records" within the meaning of the FOIA. While the FOIA makes the "Executive Office of the President" an agency subject to the Act, the legislative history makes it clear that the "Executive Office" does not include the Office of the President. Thus, since Safire's request sought notes made by Kissinger while acting in his capacity as Presidential Assistant, the requested notes were not "agency records" when they were made. Pp. 445 U. S. 155-157.
191 U.S.App.D.C. 213, 589 F.2d 1116, affirmed in part and reversed in part.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and POWELL, JJ., joined. BRENNAN, J., post, p. 445 U. S. 158, and STEVENS, J., post, p. 445 U. S. 161, filed opinions concurring in part and dissenting in part. MARSHALL, J., took no part in the consideration or decision of the cases. BLACKMUN, J., took no part in the decision of the cases.
This litigation arises out of FOIA requests seeking access to various transcriptions of petitioner Kissinger's telephone conversations. The questions presented by the petition necessitate a thorough review of the facts.
to the President for National Security Affairs in January, 1969. In September, 1973, Kissinger was appointed to the office of Secretary of State, but retained his National Security Affairs advisory position until November 3, 1975. After his resignation from the latter position, Kissinger continued to serve as Secretary of State until January 20, 1977. Throughout this period of Government service, Kissinger's secretaries generally monitored his telephone conversations and recorded their contents either by shorthand or on tape. The stenographic notes or tapes were used to prepare detailed summaries, and sometimes verbatim transcripts, of Kissinger's conversations. [Footnote 1] Since Kissinger's secretaries generally monitored all of his conversations, the summaries discussed official business as well as personal matters. The summaries and transcripts prepared from the electronic or stenographic recording of his telephone conversations throughout his entire tenure in Government service were stored in his office at the State Department in personal files.
papers which he would be free to take when he left office. [Footnote 2] After Kissinger effected this physical transfer of the notes, he entered into two agreements with the Library of Congress deeding his private papers. In the first agreement, dated November 12, 1976, Kissinger deeded to the United States, in care of the Library of Congress, one collection of papers. Kissinger's telephone notes were not included in this collection. The agreement established terms obligating Kissinger to comply with certain restrictions on the inclusion of official documents in the collection and obligating the Library to respect restrictions on access. The agreement required that official materials in the collection would consist of "copies of government papers of which there is an original or record copy in government files." It also provided that all such materials must have been "approved for inclusion in the Collection" by "authorized officials."
Public access to the collection, under the terms of the deed, will not begin until 25 years after the transfer or 5 years after Kissinger's death, whichever is later. Until that time, access is restricted to (1) employees of the Library of Congress who have been jointly approved by the Library of Congress and Mr. Kissinger; (2) persons who have received the written permission of Mr. Kissinger; and (3) after Kissinger's death, persons who have received the written permission of a committee to be named in his will. Kissinger and all of his research assistants who have appropriate security clearance retain unrestricted access to the collection.
"surrendered to responsible officials . . . documents or material containing classified or administratively controlled information furnished . . . during the course of [Government] employment or developed as a consequence thereof, including any diaries, memorandums of conversations, or other documents of a personal nature. . . ."
On December 24, 1976, by a second deed, Kissinger donated a second collection consisting of his telephone notes. This second agreement with the Library of Congress incorporated by reference all of the terms and conditions of the first agreement. It provided in addition, however, that public access to the transcripts would be permitted only with the consent, or upon the death, of the other parties to the telephone conversations in question.
On December 28, 1976, the transcripts were transported directly to the Library from the Rockefeller estate. Thus, the transcripts were not reviewed by the Department of State Document and Reference Center with the first collection of donated papers before they were delivered into the possession of the Library of Congress. Several weeks after they were moved to the Library, however, one of Kissinger's personal aides did extract portions of the transcripts for inclusion in the files of the State Department and the National Security Council. Pursuant to the instructions of the State Department Legal Adviser, the aide included in the extracts, "any significant policy decisions or actions not otherwise reflected in the Department's records."
The second FOIA request was filed on December 28 and 29, 1976, by the Military Audit Project (MAP) after Kissinger publicly announced the gift of his telephone notes to the United States and their placement in the Library of Congress. The MAP request, filed with the Department of State, sought records of all Kissinger's conversations made while Secretary of State and National Security Adviser. On January 18, 1977, the Legal Adviser of the Department of State denied the request on two grounds. First, he found that the notes were not agency records. Second, the deposit of the notes with the Library of Congress prior to the request terminated the Department's custody and control. The denial was affirmed on administrative appeal.
Secretary of State. The request was denied for the same reasons given to the MAP requesters.
The United States has taken some action to seek recovery of the notes for record processing. On January 4, 1977, the Government Archivist wrote to Kissinger, requesting that he be permitted to inspect the telephone notes so that he could determine whether they were Department records, and to determine whether Kissinger had authority to remove them from Department custody. The State Department Legal Adviser, however, analyzed the Archivist's request and issued a memorandum concluding that, so long as extracts of the official business contained in the notes were filed as agency records, Kissinger had complied with the Department's regulations. The Legal Adviser also concluded that the inspection procedures suggested by the Archivist would compromise the Department's policy of respecting the privacy of such secretarial notes and would discourage the creation of historical materials in the first instance. On January 18, 1977, Kissinger replied to the Archivist, declining to permit access.
The Archivist renewed his request for an inspection on February 11, 1977, by which time Kissinger was no longer Secretary of State. With the request, he enclosed a memorandum of law prepared by the General Counsel of the GSA concluding that the materials in question might well be records, rather than personal files, and that the Archivist was entitled to inspect them under the Federal Records and Records Disposal Acts, 44 U.S.C. §§ 2901-2909, 3101-3107; 44 U.S.C. §§ 3301-3314 (1976 ed. and Supp. II). Kissinger did not respond to the Archivist's second request.
Kissinger, the Library of Congress, the Secretary of State and the Department of State as defendants. The plaintiffs sought a judgment declaring that the summaries were agency records that had been unlawfully removed and were being improperly withheld. Plaintiffs requested as ultimate relief that the court require the Library to return the transcripts to the Department with directions to process them for disclosure under the FOIA.
Cross-motions for summary judgment were filed by all plaintiffs and by Kissinger. The District Judge ruled in plaintiffs' favor as to transcripts produced while Kissinger was Secretary of State, but denied relief as to transcripts of conversations produced while Kissinger was Special Assistant to the President. The court first found that the transcripts of telephone conversations were "agency records" subject to disclosure under the FOIA. The court also found that Kissinger had wrongfully removed these records by not obtaining the prior approval of the Administrator of General Services. The court recognized that the FOIA did not directly provide for relief, since the records were in the custody of the Library of Congress, which is not an "agency" under the Act. Nevertheless, the court held that the FOIA permitted the court to invoke its equitable powers "to order the return of wrongfully removed agency documents where a statutory retrieval action appears unlikely."
An order was entered requiring the Library to return the documents to the Department of State; requiring the Department of State to determine which of the summaries are exempt from disclosure under the FOIA, and to provide the required materials to the plaintiffs. The court denied the production of summaries made during Kissinger's tenure as National Security Adviser on the basis of a mistaken assumption that plaintiffs had withdrawn their request for these summaries.
affirmed the trial court judgment ordering production of the summaries made while Kissinger was Secretary of State. The Court of Appeals also held that the summaries made during Kissinger's service as National Security Adviser need not be produced. The court found that this request had not been withdrawn, and reasoned that three considerations supported nonproduction: (1) the FOIA does not cover those Presidential advisers "who are so close to him as to be within the White House"; (2) the relocation of the transcripts to the State Department did not bring them within its disclosure responsibilities under the FOIA; and (3) the fact that portions of the transcripts may reflect the affairs of the NSC, an agency to which the FOIA does apply, provided no basis for disclosure in the absence of an FOIA request directed to that agency.
Kissinger filed a petition for certiorari requesting this Court to review the Court of Appeals' determination that the State Department had improperly withheld agency records, thereby permitting their production from the Library of Congress. The RCFP requesters filed a cross-petition seeking review of that court's judgment denying production of the conversations transcribed while Kissinger served as National Security Adviser. We granted both petitions, 441 U.S. 904, and we now affirm in part and reverse in part.
of the Federal Records Disposal Act, 44 U.S.C. § 3303. We need not, and do not, decide whether the telephone notes are agency records, or were wrongfully removed, for even assuming an affirmative answer to each of these questions, the FOIA plaintiffs were not entitled to relief.
The question must be, of course, whether Congress has conferred jurisdiction on the federal courts to impose this remedy. Two statutory schemes are relevant to this inquiry. First, if Congress contemplated a private right of action under the Federal Records Act and the Federal Records Disposal Act, this would, in itself, justify the remedy imposed if Kissinger in fact wrongfully removed the documents. In the alternative, the lower court order could be sustained if authorized by the FOIA.
The Federal Records Act of 1950, 44 U.S.C. § 2901 et seq., authorizes the "head of each Federal agency" to establish a "records management program" and to define the extent to which documents are "appropriate for preservation" as agency records. The records management program requires that adequate documentation of agency policies and procedures be retained. The Records Disposal Act, a complementary records management Act, provides the exclusive means for record disposal. 44 U.S.C. § 3314.
transferring custody to himself and then to the Library of Congress. We assume such a wrongful removal arguendo for the purposes of this opinion.
But the Federal Records Act establishes only one remedy for the improper removal of a "record" from the agency. The head of the agency is required under 44 U.S.C. § 3106 to notify the Attorney General if he determines or "has reason to believe" that records have been improperly removed from the agency. The Administrator of General Services is obligated to assist in such actions. 44 U.S.C. § 2905. At the behest of these administrators, the Attorney General may bring suit to recover the records.
The Archivist did request return of the telephone notes from Kissinger on the basis of his belief that the documents may have been wrongfully removed under the Act. Despite Kissinger's refusal to comply with the Archivist's request, no suit has been instituted against Kissinger to retrieve the records under 44 U.S.C. § 3106.
Plaintiff requesters effectively seek to enforce these requirements of the Acts by seeking the return of the records to State Department custody. No provision of either Act, however, expressly confers a right of action on private parties. Nor do we believe that such a private right of action can be implied.
"an elemental canon of statutory construction that, where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it."
Ibid. Finally, the legislative history does not detract from the inference to be drawn from congressional silence, but rather confirms that such silence is purposeful.
"It is well to emphasize that records come into existence, or should do so, not in order to fill filing cabinets or occupy floor space, or even to satisfy the archival needs of this and future generations, but first of all to serve the administrative and executive purposes of the organization that creates them. There is danger of this simple, self-evident fact being lost for lack of emphasis. The measure of effective records management should be its usefulness to the executives who are responsible for accomplishing the substantive purposes of the organization. . . . [The] first interest is in the establishment of a useful system of documentation that will enable [the executive] to have the information he needs available when he needs it."
The plaintiff requesters contend that, even though the Federal Records and Records Disposal Acts do not contemplate a private right of action, the FOIA nevertheless supplies what was missing from those Acts -- congressional intent to permit private actions to recover records wrongfully removed from Government custody. We are, however, unable to read the FOIA as supplying that congressional intent.
the custody nor control necessary to enable it to withhold. In looking for congressional intent, we quite naturally start with the usual meaning of the word "withhold" itself. The requesters would have us read the "hold" out of "withhold." The act described by this word presupposes the actor's possession or control of the item withheld. A refusal to resort to legal remedies to obtain possession is simply not conduct subsumed by the verb "withhold."
The Act and its legislative history do not purport to define the word. An examination of the structure and purposes of the Act, however, indicates that Congress used the word in its usual sense. An agency's failure to sue a third party to obtain possession is not a withholding under the Act.
Several sources suggest directly that agency possession or control is prerequisite to triggering any duties under the FOIA. In the debates, the Act was described as ensuring "access to the information possessed by [Government] servants." (Emphasis added.) 112 Cong.Rec. 13652 (1966), reprinted in Freedom of Information Act Source Book, S. Doc. No. 93-82, p. 69 (1974) (remarks of Rep. Monagan) (hereinafter Source Book I).
"refers, of course, only to records in being and in the possession or control of an agency. . . . [It] imposes no obligation to compile or procure a record in response to a request."
Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 23-24 (June 1967), Source Book I, pp. 222-223.
to retain possession or control. [Footnote 6] See also NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 437 U. S. 221 (1978), describing the Act as reaching "records and material in the possession of federal agencies. . . ."
The conclusion that possession or control is a prerequisite to FOIA disclosure duties is reinforced by an examination of the purposes of the Act. The Act does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it, in fact, has created and retained. [Footnote 7] It has been settled by decision of this Court that only the Federal Records Act, and not the FOIA, requires an agency to actually create records, even though the agency's failure to do so deprives the public of information which might have otherwise been available to it. NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 421 U. S. 161-162 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U. S. 168, 421 U. S. 192 (1975).
"the need to search for and collect the requested records from field facilities and other establishments that are separate from the office processing the request."
This exception for searching and collecting certainly does not suggest that Congress expected an agency to commence lawsuits in order to obtain possession of documents requested, particularly when it is seen that where an extension is allowable, the period of the extension is only for 10 days. Either Congress was operating under the assumption that lawsuits could be waged and won in 10 days or it was operating under the assumption that agencies would not be obligated to file lawsuits in order to comply with FOIA requests.
the enactment of the 1974 amendments to the FOIA, it was emphasized that agencies generally are not obligated to provide extensive services in fulfilling FOIA requests. S.Rep. No. 93-854, p. 12 (1974), reprinted in House Committee on Government Operations and Senate Committee on the Judiciary, Freedom of Information Act and Amendments of 1974: Source Book, 94th Cong., 1st Sess., 164 (Joint Comm.Print 1975) (hereinafter Source Book II). When agencies do provide additional services in conducting a search, they are clearly authorized to allocate that cost to the requester. Ibid. It is doubtful that Congress intended that a "search" include legal efforts to retrieve wrongfully removed documents, since such an intent would authorize agency assessment to the private requester of its litigation costs in such an endeavor.
It is therefore clear that Congress never intended, when it enacted the FOIA, to displace the statutory scheme embodied in the Federal Records Act and the Federal Records Disposal Act providing for administrative remedies to safeguard against wrongful removal of agency records, as well as to retrieve wrongfully removed records. This result is buttressed by our decisions in Renegotiation Board v. Bannercraft Clothing Co., 415 U. S. 1 (1974), and NLRB v. Robbins Tire & Rubber Co., supra, both demonstrating reluctance to construe the FOIA as silently departing from prior longstanding practice. Bannercraft, supra, of course held that Congress intended federal district courts to retain traditional equitable jurisdiction in adjudicating FOIA actions. But historic equitable practice has long recognized that an individual does not improperly withhold a document sought pursuant to a subpoena by his refusal to sue a third party to obtain or recover possession. Amey v. Long, 9 East 473, 482, 103 Eng.Rep. 653, 657 (K.B. 1808).
of Congress. [Footnote 9] The Government, through the Archivist, has requested return of the documents from Kissinger. The request has been refused. The facts make it apparent that Kissinger, and the Library of Congress as his donee, are holding the documents under a claim of right. Under these circumstances, the State Department cannot be said to have had possession or control of the documents at the time the requests were received. It did not, therefore, withhold any agency records, an indispensable prerequisite to liability in a suit under the FOIA.
The Safire request raises a separate question. At the time when Safire submitted his request for certain notes of Kissinger's telephone conversations, all the notes were still located in Kissinger's office at the State Department. For this reason, we do not rest our resolution of his claim on the grounds that there was no withholding by the State Department. As outlined above, the Act only prohibits the withholding of "agency records." We conclude that the Safire request sought disclosure of documents which were not "agency records" within the meaning of the FOIA.
12, 1971, in which (1) Safire's name appeared; or (2) in which Kissinger discussed the subject of information "leaks" with General Alexander Haig, Attorney General John Mitchell, President Richard Nixon, J. Edgar Hoover, or any other official of the FBI.
The FOIA does render the "Executive Office of the President" an agency subject to the Act. 5 U.S.C. § 552(e). The legislative history is unambiguous, however, in explaining that the "Executive Office" does not include the Office of the President. The Conference Report for the 1974 FOIA Amendments indicates that "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President" are not included within the term "agency" under the FOIA. H.R.Conf.Rep. No. 93-1380, p. 15 (1974), reprinted in Source Book II, p. 232. Safire's request was limited to a period of time in which Kissinger was serving as Assistant to the President. Thus, these telephone notes were not "agency records" when they were made.
The RCFP requesters have argued that, since some of the telephone notes made while Kissinger was adviser to the President may have related to the National Security Council, they may have been National Security Council records, and therefore subject to the Act. See H.R. Rep No. 93-876, p. 8 (1974), Source Book II, p. 128, indicating that the National Security Council is an executive agency to which the FOIA applies. We need not decide when records which, in the words of the RCFP requesters, merely "relate to" the affairs of an FOIA agency become records of that agency. To the extent Safire sought discussions concerning information leaks which threatened the internal secrecy of White House policymaking, he sought conversations in which Kissinger had acted in his capacity as a Presidential adviser only.
the request as implicating any National Security Council records. The request did not mention the National Security Council or any subject relating to the NSC. To the contrary, he requested to see transcripts Kissinger made from his White House office. Moreover, after the State Department denied the request on the grounds that these were White House records, Safire's appeal argued these were State Department records, again never suggesting they were NSC records. The FOIA requires the requester to adequately identify the records which are sought. 5 U.S.C. § 552(a)(3)(A). Safire's request did not describe the records as relating to the NSC or in any way put the agency on notice that it should refer the request to the NSC. See 5 U.S.C. § 552(a)(6)(b)(iii). Therefore, we also need not address the issue of when an agency violates the Act by refusing to produce records of another agency, or failing to refer a request to the appropriate agency.
The RCFP requesters nevertheless contend that, if the transcripts of telephone conversations made while adviser to the President were not their "agency records," they acquired that status under the Act when they were removed from White House files and physically taken to Kissinger's office at the Department of State. We simply decline to hold that the physical location of the notes of telephone conversations renders them "agency records." The papers were not in the control of the State Department at any time. They were not generated in the State Department. They never entered the State Department's files, and they were not used by the Department for any purpose. If mere physical location of papers and materials could confer status as an "agency record," Kissinger's personal books, speeches, and all other memorabilia stored in his office would have been agency records subject to disclosure under the FOIA. It requires little discussion or analysis to conclude that the lower courts correctly resolved this question in favor of Kissinger. See also Forsham v. Harris, post, p. 445 U. S. 169.
Accordingly, we reverse the order of the Court of Appeals compelling production of the telephone manuscripts made by Kissinger while Secretary of State and affirm the order denying the requests for transcripts produced while Kissinger served as National Security Adviser.
* Together with No. 78-1217, Reporters Committee for Freedom of the Press et al. v. Kissinger, also on certiorari to the same court.
Tapes and stenographic notes were always destroyed immediately after they were summarized or transcribed.
This conclusion was premised on the Adviser's finding that the notes were covered by a Department regulation providing that a retiring official may retain papers "explicitly designated or filed as personal at the time of origin or receipt." 5 FAM § 417.1(a) (1974).
Safire filed an administrative appeal from this decision, contending that the notes were agency records by virtue of their relocation to the State Department. The appeal was denied.
See Touche Ross & Co. v. Redington, 442 U. S. 560 (1979); Cannon v. University of Chicago, 441 U. S. 677 (1979).
We need not decide what remedies might be available to private plaintiffs complaining that the administrators and the Attorney General have breached a duty to enforce the Records Act, since no such action was brought here. See 5 U.S.C. §§ 704, 701(a)(2), 706(1).
See Nolen v. Rumsfeld, 535 F.2d 890, 891 (CA5 1976) (suit "seeking production of missing records . . . is not within the purview of the Freedom of Information Act"), cert. denied, 429 U.S. 1104 (1977); Nichols v. United States, 325 F.Supp. 130, 137 (Kan.1971) ("the Court may not require production of records not in [the] custody or control of an agency"), aff'd, 460 F.2d 671 (CA10), cert. denied, 409 U.S. 966 (1972); Ciba-Geigy Corp. v. Mathews, 428 F.Supp. 523, 531 (SDNY 1977) ("[T]he government cannot be compelled to obtain possession of documents not under its control or furnish an opinion when none is written") .
Congress has imposed some very limited record-creating obligations with regard to indexing under the FOIA. See 5 U.S.C. § 552(a)(2).
This is not to suggest that this discretionary determination by the agency relieves it of other obligations imposed by the records management Acts. The observation goes only to the nature of the public right of access provided by the FOIA.
There is no question that a "withholding" must here be gauged by the time at which the request is made, since there is no FOIA obligation to retain records prior to that request. This temporal factor has always governed requests under the subpoena power, Jurney v. MacCracken, 294 U. S. 125 (1935), as well as under other access statutes. See Fed.Rules Civ.Proc. 34, 45. We need not decide whether this standard might be displaced in the event that it was shown that an agency official purposefully routed a document out of agency possession in order to circumvent a FOIA request. No such issue is presented here. We also express no opinion as to whether an agency withholds documents which have been wrongfully removed by an individual after a request is filed.
Today's decision explores hitherto uncharted territory in a complicated statutory scheme. I cannot agree with what is, to me, the Court's crabbed interpretation of "improper withholding" under the Freedom of Information Act (FOIA). At the same time, I am not without some uncertainty about the contours of the "improper withholding" standard. Accordingly, although the result reached by my Brother STEVENS strikes me as the most workable for the present, I write separately to articulate some ideas on this difficult problem.
Although I agree that the Records Acts cannot be neatly interpolated into FOIA, I part company with the Court when it concludes that FOIA does not reach records that have been removed from a federal agency's custody. If FOIA is to be more than a dead letter, it must necessarily incorporate some restraint upon the agency's powers to move documents beyond the reach of the FOIA requester. Even the Court's opinion implies -- as I think it must -- that an agency would be improperly withholding documents if it failed to take steps to recover papers removed from its custody deliberately to evade an FOIA request. Ante at 445 U. S. 155, n. 9. Beyond that minimal rule, I would think it also plainly unacceptable for an agency to devise a records routing system aimed at frustrating FOIA requests in general by moving documents outside agency custody with unseemly haste.
the Court must resolve, the difficulty is where to draw the line. We could hardly assume that Congress intended agencies to be prevented from surrendering all documents that might be of interest to requesters -- so broad a rule would not only swamp the agencies with paper, but would also seem incompatible with the records management goals of the Records Acts. See S.Rep. No. 2140, 81st Cong., 2d Sess., 4 (1950). Perhaps the appropriate test would take into account the importance of specific records; it might also consider the length of time records would be held, and the historical frequency of requests for documents of a particular type. To suggest the elements of such a test, however, is to expose how ill-suited a court is to define them adequately. It is Congress which has the resources and responsibility to fashion a rule about document retention that comports with the objectives of FOIA.
position fairly fits this prescription. While turning an FOIA suit upon the Records Acts is, as I have recognized, conceptually problematic, the records statutes do formulate document retention criteria that are not unduly burdensome and that carry a congressional imprimatur.
Accordingly, I agree with MR. JUSTICE STEVENS' conclusion with respect to the "improper withholding" issue, and therefore dissent from 445 U. S.
For example, a document transfer may comport with the formal requirements of the Records Acts, and yet be motivated by the desire to avoid a pending FOIA request.
This notion is not incompatible with NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 421 U. S. 161-162 (1975), and Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U. S. 168, 421 U. S. 192 (1975), which held that FOIA does not compel agencies to write opinions where not otherwise required. FOIA neither compels the Government to conduct research on behalf of private citizens, nor duplicates administrative law requirements of adequate explanation for Government action, see id. at 421 U. S. 191-192. What the Act does mandate is exposure of the research and explanations which the Government has chosen to memorialize; an agency's obligation to retain records, therefore, may be inferred from FOIA without contradicting the principle that agencies need not create records.
This will not necessarily entail the agency's litigating against the third party in possession of the documents, as the Court suggests. Rather, the third party might be joined in the FOIA suit. Cf. Renegotiation Board v. Bannercraft Clothing Co., 415 U. S. 1, 415 U. S. 18-20 (1974).
of such an incentive, which is directly contrary to the purpose of FOIA, rather than the result in this particular case, [Footnote 3/2] that prompts me to write in dissent.
In my judgment, a "withholding" occurs within the meaning of FOIA whenever an agency declines to produce agency records which it has a legal right to possess or control. A determination that documents have been withheld does not end the inquiry, of course, for a court must still determine whether the withholding was "improper" for purposes of the Act. Thus, in my view, correct analysis requires us to confront three separate questions in the following order: (1) are any of the requested documents "agency records"? (2) if so, have any of them been withheld because they are in the legal custody of the agency? and (3) if so, was the withholding improper?
I cannot accept Dr. Kissinger's argument that the summaries are private papers. As the District Court noted, they were made in the regular course of conducting the agency's business, were the work product of agency personnel and agency assets, and were maintained in the possession and control of the agency prior to their removal by Dr Kissinger.
bring all documents within the legal custody or control of the agency within the purview of FOIA. Thus, if an agency has legal right to regain possession of documents wrongfully removed from its files, it continues to have custody of those documents. If it then refuses to take any steps whatsoever to demand, or even to request, that the documents be returned, then the agency is "withholding" those documents for purposes of FOIA.
Department's failure even to request their return [Footnote 3/8] constituted a "withholding" for purposes of FOIA.
The third and most difficult question is whether the State Department's "withholding" was "improper." In my view, the answer to that question depends on the agency's explanation for its failure to attempt to regain the documents. If the explanation is reasonable, then the withholding is not improper. For example, I would not find an agency's inaction improper in a case in which it simply did not know where the documents were located, or had no interest whatsoever in retrieving them. The FOIA does not require federal agencies to engage in prolonged searches for documents or institute legal proceedings that will not yield any appreciable benefits to the agency.
or had reason to believe that it had a legal right to the documents and that the documents were still valuable for its own internal purposes, and nevertheless did not attempt to regain them, its inaction should be deemed an improper withholding.
In this case, the State Department refused the FOIA requests on the ground that the telephone summaries were not agency records and, in any event, were no longer within the agency's custody or control. By the time the FOIA actions were filed, there was substantial reason for doubting the Department's resolution of the first issue, inasmuch as the General Counsel of GSA had rendered a legal opinion that the documents were probably agency records and should be returned to the Government for proper archival screening. [Footnote 3/10] Because of their very nature, there was also substantial reason for believing that, if they were agency records, the summaries would have to be considered valuable documents. Finally, the fact that the documents had been removed by the head of the agency shortly before the expiration of his term of office raised an inference that the removal had been motivated by a desire to avoid FOIA disclosure.
Under these circumstances, it is at least arguable that the continued inaction of the State Department, contrary to the views of the Archivist, was improper.
Accordingly, I believe the District Court had jurisdiction under FOIA to determine (a) whether the telephone summaries were in fact agency records and (b) if so, whether the State Department's failure to seek return of the documents was improper. The court's disposition of those issues seems to me to have been somewhat premature, however. Once the litigation began, the State Department changed its position and contended that it could not determine whether it should seek return of the summaries without first inspecting them. Pursuant to an agreement with Dr. Kissinger, the Department and the Archivist began the process of sifting through the records. That process had not yet been completed when the District Court handed down its decision. Because the agency's informed opinion of the documents' status and their value was, in my view, relevant to a determination of whether its actions were "improper," I think the court's order was premature. I would therefore remand to give the Government an opportunity to finish its examination of the documents.
The Court states that "[i]n such a case, the agency has neither the custody nor control necessary to enable it to withhold." Ante at 445 U. S. 150-151.
I do not mean to imply that there was any improper motive for Dr. Kissinger's removal of the documents in this case. Nor do I believe that the decision the Court reaches today will necessarily lessen the requesters' access to the information contained in the summaries of Dr. Kissinger's telephone conversations. Many, if not all, of the significant decisions reflected in those summaries are also reflected in other agency records, which are still in the State Department's possession. Also, it is not clear how many of the summaries, even if subject to FOIA, would be exempt from production because they contain either classified or purely personal information. See 5 U.S.C. §§ 552(b)(1) and (b)(6).
I agree with 445 U. S. Kissinger's telephone conversations when he was a Presidential adviser were not "agency records" subject to disclosure under FOIA when they were created, and did not become "agency records" when they were later stored in Dr. Kissinger's files at the State Department.
Because it believes that the degree of duplication between the summaries and records still in the agency's possession cannot be determined from the evidence presented in this case, the Government argues that a remand would be appropriate if the issue of whether the summaries were "agency records" must be decided.
The fact that extracts were not made until after the summaries had been transferred to the Library of Congress indicates that, even under the Government's view, some of the summaries must have been "agency records" at the time they were removed from the State Department. Moreover, during the course of the litigation, Dr. Kissinger granted permission to the Archivist and the State Department to review the summaries in order to determine whether they should seek their return as "agency records" despite the existence of the summaries. Brief for Federal Parties 14, n. 11.
The Court's reference to subpoenas is instructive. See ante at 445 U. S. 154. Under Rule 34 of the Federal Rules of Civil Procedure, a party is required to produce requested documents if they are within his "possession, custody or control." The same standard applies to subpoenas duces tecum issued under Rule 45, see 9 C. Wright & A. Miller, Federal Practice and Procedure § 2454, p. 425 (1971). In construing these Rules, the courts have rejected a narrow physical possession test, focusing instead on whether the subpoenaed party has a legal right to custody or control of the documents in question. See, e.g., United States v. International Business Machines Corp., 71 F.R.D. 88, 91 (SDNY 1976); Buckley v. Vidal, 50 F.R.D. 271 274 (SDNY 1970); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2210 (1970). Thus, if this case involved compliance with a discovery request, rather than an FOIA request, I doubt very much that the agency could justify its failure to produce the documents on the ground that the agency head had wrongfully removed them from the agency's physical possession just before the subpoena was served.
Once Dr. Kissinger's argument that the summaries were private papers is rejected, it becomes clear that the Federal Records Act and Records Disposal Act were violated by the transfer of the papers to the Library of Congress. If the summaries were agency records, as the requesters argue, then the State Department could not properly relinquish them without obtaining the approval of the General Services Administration. Under the Records Disposal Act, GSA's approval would be conditioned on a showing that the documents were no longer needed in the "transaction of its current business," and did not have "sufficient administrative legal, research, or other value to warrant their further preservation by the Government." 44 U.S.C. §§ 3303, 3303a (1976 cd. and Supp. II).
If, on the other hand, the summaries could have been converted from "records" to "non-record materials," as the Government suggests, the State Department still would have been required to take steps prior to relinquishing them to assure itself that all significant information had been properly extracted for inclusion in more formal State Department files. The fact that such steps were not taken until after the summaries had been deeded over to the Library of Congress makes their removal from the agency by Dr. Kissinger unlawful even under the Government's theory.
The Archivist did make several requests for the documents. App. 99a-116a. The fact that Dr. Kissinger refused those requests, however, does not demonstrate that a similar request by the State Department would also have been refused.
The Court recognizes that there might be situations where documents were removed from the agency in order to avoid FOIA requests, and suggests that its strict "physical possession" standard might be "displaced" under these circumstances, ante at 445 U. S. 155, n. 9. As a practical matter, however, the Court's suggestion provides little comfort to the intended beneficiaries of the Act. For if an agency can make a sufficient response to a request by simply denying physical possession, it will be a rare case indeed in which the ordinary citizen can overcome that denial by proof of improper motivation. Moreover, it would be unseemly to invite litigation and discovery into the subjective motivation of agency officials responsible for processing the flood of paper that threatens to engulf today's bureaucracy. Focusing attention on the agency's reason for not reacquiring the documents, rather than on the individual employee's motive for removing them in the first place, seems to me to be a preferable way of eliminating the incentive to transfer documents to avoid disclosure under FOIA.
GSA, and in particular the Archivist, has supervisory responsibility over the various agencies' records management and disposal programs. See, e.g., 44 U.S.C. §§ 2904, 2906, 3102, 3302, and 3303a (1976 ed. and Supp. II). Thus, an opinion by GSA's General Counsel could be expected to give a more authoritative and impartial view of the technical issue of what constitutes an agency record than an opinion by the State Department's legal counsel, given after the documents had already been removed.


text:
In Economic Power and the Corruption of the American Political System, Jeremy Cloward of Diablo Valley College traces the roots of corporate influence in the U.S. political system to the Supreme Court's decision in Dartmouth College v. Woodward, which recognized a corporation's right to have its charter honored as a contract. By extension, the decision granted individual property rights to corporations. Then in Santa Clara County v. Southern Pacific Railroad, the court ruled that the Fourteenth Amendment applied to corporations as well as to people. While Cloward and other observers chalk up this finding to a clerical error, subsequent Supreme Court decisions cemented the legal standing of corporations as people.
What's missing from decisions stretching from Pembina Consolidated Silver Mining Co. v. Pennsylvania (1888) to Citizens United is a clear explanation of the court's rationale for its determination. In some instances when finding liability or criminality, courts distinguish a corporation from its officers/agents (and shareholders), while in others a corporation and its officers, managers, and shareholders appear to be synonymous. Consider who is actually doing the "speaking" when a corporation exercises its Constitutional right to free speech.
 Dartmouth College v. Woodworth (1819) 17 U.S. 518.
 Santa Clara County v. Southern P. R. Co. (1886) 118 U.S. 394.
 Pembina Consol. Silver Mining & Milling Co. v. Pennsylvania (1888) 125 U.S. 181.

matches: v. v. v. v. v. v.


Curtis L. Croy is currently incarcerated pursuant to a conviction of distribution of a controlled dangerous substance, for which he was sentenced to ten years of imprisonment. He began serving this sentence on August 10, 1994.
On February 9, 1996, Mr. Croy was granted parole but, on May 7, 1997, his parole was revoked. He was then reincarcerated to serve the remainder of this ten year sentence and received no credit for his "street time."
On September 22, 1999, Mr. Croy filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. In his petition, he argued that Respondent's failure to credit him with time spent on parole was a violation of the Double Jeopardy Clause of the Constitution. The district court adopted the report and recommendation of the magistrate judge and denied the petition.
Mr. Croy subsequently filed a notice of appeal with the district court, which the district court construed as an application for a certificate of appealability, and a motion for leave to proceed on appeal in forma pauperis. On May 19, 2000, the district court declined to issue a certificate and denied the motion. Mr. Croy is now appealing the district court's order. Because Mr. Croy is proceeding pro se, we liberally construe his pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).The district court addressed Mr. Croy's claims pursuant to 28 U.S.C. § 2254. However, in Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000), we held that a petition filed by a state prisoner challenging the execution of a sentence, rather than the validity of a conviction and sentence, is properly brought under our jurisdiction by 28 U.S.C. § 2241, not § 2254. There is no need, however, to remand to the district court because the merits of Mr. Croy's petition are the same under either statute. Cf. id. at 865 (noting that a remand was not necessary because the claims of the petitioner were without merit). Furthermore, under either statute, Mr. Croy is required to file a motion for certificate of appealability to appeal the denial of his petition. See id. at 869 (holding that a certificate of appealability is needed for any challenge to the incidents and circumstances of a detention under § 2241).
As for Mr. Croy's motion to proceed on appeal in forma pauperis, we hold that Mr. Croy has shown a "financial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal." DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
Accordingly, we GRANT Mr. Croy's motion to proceed in forma pauperis and DISMISS the appeal.
determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, ordered submitted without oral argument.
On appeal, Mr. Croy raises an issue that was not a part of his original petition for a writ of habeas corpus. Following our general rule, we will not decide this issue because it was not raised before the district court. See Tele-Communications, Inc. v. Commissioner, 104 F.3d 1229, 1232 (10th Cir. 1997).


text:
THIS CAUSE came before the court on the defendant's Motion to Suppress #3, filed January 25, 2002, and on the defendant's original and Amended Motion to Suppress #4, filed April 10, 2002 and June 10, 2002, all of which were filed pursuant to Fla. R. Crim. P. 3.190(i). On February 14, 2002, April 18, 2002, and May 10, 2002, the court heard testimony and argument on the matter. At the conclusion of the May 10, 2002 hearing, the court directed the parties to file written closing arguments. The parties have since filed several pleadings, all of which are before the court for consideration at this time: the State's Closing Argument for Motion to Suppress #3, filed June 3, 2002; the Defendant's Closing Argument and Legal Memorandum of Law on Motion to Suppress #3, filed June 3, 2002; the State's Response to Defendant's Closing Arguments on Motion to Suppress #3, filed June 10, 2002; and the Defendant's Reply Brief on Closing Argument and Legal Memorandum of Law on Motion to Suppress #3, filed June 10, 2002.
On December 15, 2000, the defendant filed a Motion to Suppress. On December 19, 2000, the defendant filed a Motion to Suppress #1 (Miranda Violation). Additionally, on December 19, 2000, the defendant filed a Motion to Suppress #2 (Due Process Violation: Failure to Record). On January 17, 2001, the defendant filed an Addendum to Motion to Suppress #1.
On April 2, 2001, Judge Mark I. Shames heard the defendant's Motion to Suppress as it related to the cash on the front seat of the rental car operated by the defendant. This motion to suppress was properly considered a third motion, separate and distinct from Motion #1, which concerned an alleged Miranda violation, and Motion #2, which concerned an alleged due process violation. The court denied the Motion as it related to the cash on the front seat by oral ruling made April 2, 2001 at the close of the hearing.
On May 9, 2001, May 10, 2001, and May 24, 2001, the court, the Honorable Mark I. Shames presiding, heard Defendant's Motion to Suppress #1 (Miranda Violation) and Motion to Suppress #2 (Due Process Violation). The court denied these Motions by oral ruling made May 24, 2001 at the close of the hearing.
On July 31, 2001, the Honorable Mark I. Shames recused himself from the above-styled case. The case was then reassigned to the undersigned judge, the Honorable Richard A. Luce.
On August 9, 2001, the defendant filed a Motion for Rehearing of Motion to Suppress, a Motion for Rehearing of Motion to Suppress #1 (Miranda Violation), and a Motion for Rehearing of Motion to Suppress #2 (Due Process Violation). Each of these motions was filed pursuant to Fla. R. Jud. Admin. 2.160(h), which allows the successor judge to reconsider the rulings made by the predecessor judge.
On August 23, 2001, the undersigned judge signed written orders submitted by the State denying the Motions to Suppress (that were originally heard by the predecessor judge). These orders were dated nunc pro tunc to the date of the oral rulings made by the predecessor judge, and were merely one sentence in length. Entering these orders was a purely ministerial task.
On September 13, 2001, the defendant filed an Amended Motion for Rehearing of Motion to Suppress. On October 3, 2001, the defendant filed a Motion for Full Evidentiary Hearing on Motions to Suppress #1 and #2.
On October 9, 2001, the undersigned judge, after reviewing the complete record (including the three 1" binders) and all of the predecessor judge's findings and rulings pursuant to Fla. R. Jud. Admin. 2.160(h), entered a written order denying the motions and amended motion for rehearing that were originally filed by the defendant on August 9, 2001 and September 13, 2001. Additionally, on October 9, 2001, the undersigned judge denied the defendant's Motion for Full Evidentiary Hearing.
On October 16, 2001, the defendant filed a Motion to Disqualify Trial Judge, which alleged that "since the court denied the defendant's motions [for rehearing] without allowing counsel the opportunity to be heard prior to ruling, that this court is predisposed to deny any motions filed by the defendant and is not inclined to give the defendant due process of law." In the court's prior order, however, which denied the motions and amended motion for rehearing, the court specifically indicated that it had reviewed all of the pleadings and filings in the case thus far, including the several 1" black binders. Accordingly, the court entered an order denying the Motion to Disqualify Trial Judge on October 29, 2001.
The instant Motions are titled Motion to Suppress #3, and Amended Motion to Suppress #4. Just below the title in each of these motions is the heading Miranda Violation, and each includes allegations about the failure of Detective Gibson to record Miranda warnings. These issues related to Miranda, however, were not the focus of the February 14, 2002, April 18, 2002, or May 10, 2002 hearings, nor are they the focus of the written closing arguments recently filed (these issues were already heard by Judge Shames and orally denied by him on May 24, 2001 and denied by the undersigned judge by written order dated August 23, 2001). Instead, allegations of coercive police techniques, including psychological coercion, and whether the defendant's confession was indeed voluntary, forms the basis for the instant Motions. In written form, the Motion to Suppress #3 appears to address the psychologically coercive techniques, whereas the Motion and Amended Motion to Suppress #4 centers on the videotape used at the training seminar, Officer Nave's testimony, and the allegation that the defendant expressed a desire to stop the interview.
The defendant, by and through counsel, contends that his confession was involuntary. He argues, based on the expert testimony of Dr. Richard Ofshe, Ph.D., a sociologist currently employed at the University of California, Berkeley, that his confession was the product of psychological coercion. He maintains that this coercion included the use of evidence ploys and improper motivational techniques, including both high-end and low-end motivators, the repeated introduction of the accident scenario tactic, and the focusing of the defendant's attention on how the system works, all of which was calculated to deluding him into thinking that he had no choice but to confess.
Further, the defendant directs the court's attention to the compilation videotape shown at the training seminar attended by Officer Nave and Officer Barber. The defendant cites the events occurring at this training seminar to argue that the detectives, in the instant case, interrupted and "talked over" the defendant, and changed the subject when the defendant began to request an attorney or indicated a desire to stop the interview.
It is axiomatic that the State bears the burden, whenever an allegation is made that a confession is the product of coercion, to prove that the confession was voluntary and not coerced. Traylor v. State 596 So. 2d 957 (Fla. 1992). The voluntariness of a confession is determined by considering the totality of the circumstances. Vorrhees v. State, 699 So. 2d 602 (Fla. 1997); Bush v. State, 461 So. 2d 936, 939 (Fla. 1984) ("Under the totality of the circumstances, the statements made to [the defendant] did not overcome his will and produce the confession."). "To render a confession inadmissible on grounds of coercion, confusion, and intoxication, 'the delusion or confusion must be visited upon the suspect by his interrogators; if it originates from the suspect's own apprehension, mental state, or lack of factual knowledge, it will not require suppression."' Traylor v. State, 640 So. 2d 1127, 1137 (Fla. lst DCA 1994) (quoting Thomas v. State, 456 So. 2d 454, 458 (Fla. 1984)).
After carefully listening to his testimony offered at the May 10, 2002 hearing, the court specifically declines to adopt any of the expert testimony offered by Dr. Ofshe. As explained below, the court found his testimony to lack credibility.
First, the court specifically finds that Dr. Ofshe's testimony on cross-examination, in a few critical areas, was wholly inconsistent with his testimony on direct-examination. For example, on direct examination, Dr. Ofshe espoused his expert opinion that low-end motivators, defined as an appeal to the presentation of self or one's self-worth, do not elicit false or involuntary confessions from suspects who actually committed the crime.
On direct examination, Dr. Ofshe explained: Examples of low-end motivators would be statements such as, come on, we know you did it, be a man about it, admit that you did it and do the right thing; show us that you are not the kind of person who would not only do something like this, but will also continue to deny it when it's obvious that you did it; I treated you decently; I haven't yelled at you: I have been fair with you; come on play the game essentially. These low-end motivators are appeals to presentation of self, makes yourself look better in my eyes and even perhaps in the eyes of the community in general. Show us that you are upstanding enough to take responsibility for what you already did.
[Transcript from May 10, 2002 Hearing: pages 29-30].
Dr. Ofshe then discussed the likely result of using low-end motivators. Dr. Ofshe explained: Low-end motivators can actually work to elicit that "Okay I did it" statement from someone who knows they committed the crime, believes they are caught, believes their fate is certain and now just needs essentially a little grease to slide them across the line. Low-end motivators are very - are not going to produce false confessions from the innocent. The innocent person still knows I didn't do this. [Transcript from May 10, 2002 Hearing: page 30].
Yet on cross-examination, Dr. Ofshe was questioned concerning the low-end motivators used immediately preceding the defendant's actual confession, which again, according to Dr Ofshe, would not produce a false confession from someone who did not commit the crime. Dr. Ofshe's explanation, however, was that the motivators used immediately preceding the actual confession were actually not low-end motivators, but were merely additional reasons to accept the accident story, which, as he then explained it was the psychologically coercive motivator used throughout the entire interview. Despite Dr. Ofshe's explanation, the court finds, after reading the transcript and watching the videotape, that the motivators used immediately preceding the actual confession were indeed low-end motivators, if one were to subscribe to Dr. Ofshe's theories. Clearly, the motivators introduced immediately preceding the actual confession appealed to the defendant's presentation of self, such as how his family will perceive their father, how he will be written up in the press, and how his son will think of him in the future.
Dr. Ofshe's explanation that the detectives, on 78 different occasions, gave the defendant "bits and pieces" of the accident story, and that the defendant's eventual confession is somehow a product of that, even though the defendant consistently denied his involvement and manufactured stories up and until the point that the low-end motivators were introduced immediately preceding the actual confession, is simply inconsistent with the theory he espoused on direct-examination. A plain-language reading of the transcript, together with a viewing of the videotape, clearly indicates that the questions concerning the defendant's family, and how they would perceive him and his willingness to accept responsibility for the crime, were the factors that evidently prompted the defendant's eventual confession.
Dr Ofshe: But you do remember what you came to understand about what was going on with those different levels of murder and so on?
Defendent: No, not really. He kept saying, you know, different degrees of murder, I was just thinking, you know, that murder is murder, that's you know, I really don't know too much about first, second, manslaughter, all I know is murder is murder; that's all I know. That's why I said murder, murder, it's murder.
[Transcript of Interview at Pinellas County Jail: pages 18-19].
In sum, the motivators Dr. Ofshe cited, which were allegedly used by the detectives to elicit the confession in this case, were clearly rejected (as not understood) by the defendant in his interview at the Pinellas County Jail. Additionally, Dr. Ofshe's explanations as to why he traveled across country to interview the defendant at the Pinellas County Jail, given his firm belief that the transcript is the best indicator of what occurred at the interview, or why it was that he promised the defendant a return visit when he had no intentions of returning, were disingenuous, and frankly, confusing.
Okay. Now I'm catching on to what's going on here.... For hours I was kind of lost before. I know she [defense counsel] told me what you was coming to really do, but, you know, until you get into it, until I get into it, you know, it really then- it's really not dawned on me. [Transcript of Interview at Pinellas County Jail: pages 20-21 ].
That the defendant was ill prepared for the interview does not, in the court's opinion justify a blatant attempt to "coach" the defendant or convince him that he was psychologically coerced. Although this arguably goes to the defendant's theory of the case and the preparation thereof, it is a factor that the court can consider as the fact-finder to determine the expert witness' credibility.
For all of the reasons listed above, the court rejects the testimony of Dr. Ofshe, finding him to lack credibility. In deciding to reject his testimony for purposes of these pretrial motions, the court makes no comment on the admissibility of Dr. Ofshe's testimony at trial or whether he is qualified as an expert to testify at trial. Boyer v. State, 2002 WL 925015, 27 Fla. L. Weekly D 1113 (Fla. 5-th DCA 2002) (holding that the trial court erred in excluding Dr. Ofshe's testimony at trial after finding him qualified to testify as an expert where Dr. Ofshe's testimony went to the defendant's main defense).
On February 14, 2002, the court heard testimony from Officer Tonia Nave. Officer Nave testified that she attended a training, seminar on April 24 and 25, 2001, titled Street Narcotics Investigations, at which time the two detectives involved in this case, Detectives Gibson and Noodwang, taught interrogation techniques and showed a videotape of suspect interviews. Officer Nave testified that the defendant in this case, Nathan Brinkley, was shown on the videotape, and that during the portion of the videotape depicting the defendant, Officer Daniel Barber asked the question "how did you keep that guy from asking for an attorney?" Officer Nave testified that the detectives answered the question by responding "you talk over the guy or interrupt the guy." (Officer Nave paraphrasing answer given by the two detectives).
After hearing Officer Nave's testimony, the court became quite concerned with the substance of the allegations. That is why the court, at the hearing held April 18, 2002, insisted on viewing the videotape shown at the training seminar (even though it required adjourning until the videotape could be obtained). Officer Nave testified that she felt uncomfortable about viewing the videotape because she was a witness in the case, and because the case was still an active, ongoing investigation.
The court has carefully viewed this videotape in its entirety. The videotape shown at the training seminar includes seven segments. The first segment portrays the reenactment of a crime in an unrelated case. The second segment involves an interview with a suspect accused of robbing the Flowers Bakery in an unrelated case. The third segment involves the robbery of a convenience store in an unrelated case. The fourth segment portrays the reenactment of aggravated child abuse by a suspect in an unrelated case. The fifth segment involves an interview with a defendant implicated in the second segment. The sixth segment shows a longer version of the enactment portrayed in the second segment.
The seventh segment involves the defendant in this case, Nathan Brinkley. This segment shows excerpted portions from the four hour videotape of the interview with the defendant, which runs in its entirety from 2:57 p.m. - 7:21 p.m. The seventh segment begins at 2:57 p.m., ends at 3:14 p.m., jumps to 3:41 p.m., ends at 3:53 p.m., begins again at 4:49 p.m., ends at 4:53 p.m., begins again at 5:49 p.m., and finally ends at 6:30 p.m. The defendant does not request counsel, nor does he express a desire to stop the interview during any of these segments. From what the court can glean, it appears that these excerpts were selected merely as an aid to teach interrogation techniques.
The court finds that the training seminar videotape, together with Detective Gibson's testimony at the April 18, 2002 hearing regarding what occurred at the training seminar, although somewhat relevant, does not assist the court in determining how the detectives actually conducted themselves in the interview with the defendant on October 19, 1999. Instead, the transcript of the interview, together with the videotape of the interview, reflect the true circumstances surrounding the defendant's confession in this case. That Detective Gibson recorded most of his other Miranda warnings in the past, or that Detective Gibson may have encouraged interrupting a suspect as an interrogation technique at a training seminar, does not establish that the defendant's confession in this case was involuntary or psychologically coerced.
Finally, as previously mentioned, the court viewed the entire videotape of the defendant's confession, which is nearly four hours in length. In viewing the videotape, the court specifically looked for instances where the detectives interrupted, talked over, or distracted the defendant, or even changed the subject when it seemed as though the defendant was asking for an attorney or indicating a desire to stop the interview. These were the allegations made by defense counsel on several instances.
It is obvious to the court, after watching the videotape, that the confession in this case was indeed voluntary. Owen v. State 560 So.2d 207, 210 (Fla. 1990) (finding that the videotaped confession "show[s] that the confession was entirely voluntary"). It is also obvious to the court, and it should be obvious to anyone who watches the videotape, that the defendant did not manifest a desire to stop the interview, nor did he ever indicate a desire to seek the advice of counsel. Nor did either detective, for that matter, interrupt the defendant, talk over him, or distract him. The most that can be said is that the detectives, on occasion, "redirected" the defendant.
There are many factors which lead the court to conclude that the confession in this case was voluntary. State v. Sawyer, 561 So. 2d 278 (Fla. 2d DCA 1990). The interview was conducted in a controlled, calm setting, and Detective Noodwang was the sole interviewer during the approximate half hour period preceding the actual confession. Drake v. State, 441 So.2d 1079, 1081 (Fla. 1983). The defendant was not subjected to a barrage of questions during predawn hours without an opportunity to eat or sleep (to the contrary, Detective Gibson asked the defendant, on three separate occasions, if he wanted a soda). Spradley v. State, 442 So.2d 102.9, 1043 (Fla. 2d DCA 1983). Several breaks were taken during the interview. Neither of the detectives made any threats of harm (to the contrary, the detectives offered the defendant a blanket to keep warm). Williams v. State 441 SO.2d 653, 655 (Fla. 3d DCA 1983). Neither of the detectives exerted any undue influence or made any direct or implied promise of benefits. Id. Finally, neither of the detectives made any threats or improper promises of leniency. Nelson v. State, 688 So. 2d 971, 972-974 (Fla. 4th DCA 1997) ("[S]statements suggesting leniency if [a] confession is made are only objectionable if they establish an express quid pro quo bargaining for the confession.").
The tactics that were employed by the detectives in this case, such as promising to tell the state attorney that the defendant cooperated or that the crime may have been accidental, are legally permissible. Walker v. State, 707 So.2d 300,311 (Fla. 1997); Magueira v. State, 588 So. 2d 221 (Fla. 1991); Brown v. State 565 So.2d 304, 306 (Fla. 1990). That the detectives represented to the defendant, at some time preceding the taped interview, that they knew, from fingerprint analysis, that the money found in his custody was the money from Chili's Restaurant does not amount to coercion or render the detailed confession involuntary. A misstatement of fact does not, in and of itself, amount to coercion. State v. Wallace, 673 So. 2d 914 (Fla. 2d DCA 1996) ("[p]olice deception does not automatically invalidate a confession especially where there is no doubt that the defendant was read and understood his Miranda rights."); State v. Mallory, 670 So. 2d 103, 107 (Fla. Ist DCA 1996) (citing State v. Manning, 506 So. 2d 1094 (Fla. 3d DCA 1987)); but see State v. Cayward, 552 So. 2d 971 (Fla. 2d DCA 1989) (finding that presentation of false scientific documents overstepped the line of permitted police deception).
In sum, the court concludes that the defendant's confession was voluntary. As explained above, the observable factors certainly do not support a finding of involuntariness. Compare State v. Sawyer 561 So.2d 278, 290-91 (Fla. 2d DCA 1990) (confession involuntary where it was product of enforced sleeplessness, 16-hour serial interrogation with no meaningful breaks, scenario of misleading questions, denial of requests to rest, refusal to honor defendant's Miranda rights and use of defendant's history of blackouts to undermine his reliance on his own memory). Moreover, although the court acknowledges that involuntary confessions can result from psychological coercion, such was not the case here. Walker, 707 So. 2d at 311. As explained above, neither the transcript nor the videotape of the interview suggest that the defendant was coerced by the detectives into making his confession. Owen, 560 So. 2d at 210.
As of the date of this order, the court will not entertain any further motions to suppress on any matters that have been ruled upon in this order or in previous orders.
Accordingly, it is ORDERED AND ADJUDGED that the Defendant's Motion to Suppress #3 and Motion to Suppress #4 are hereby DENIED.
DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this - day of July, 2002. A true and correct copy of the foregoing has been furnished, via U.S. Mail or interoffice mail, to the parties listed below.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
SOLEDAD TRIA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
This is an appeal from the Decision1 dated April 20, 2012 and Resolution2 dated September 18, 2012 of the Court of Appeals (CA) in CA-G.R. CR No. 33529 which affirmed the Decision3 dated July 16, 2010 of the Regional Trial Court (RTC) of Valenzuela City, Branch 172, in Criminal Case No. 970-V-01, finding Soledad Tria (petitioner) guilty beyond reasonable doubt of estafa and sentencing her to suffer the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum.
That on or [about] March 8, 2000 in Valenzuela City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously defraud and deceive SEVEN SPHERE ENTERPRISES represented by one GERTRUDES MENESES in the following manner to wit: the said accused received assorted jewelry from SEVEN SPHERE ENTERPRISES worth P23,375.50 under the express obligation on the part of the said accused to sell the same and to account for and deliver the proceeds of the sale or to return the merchandise, if unsold, to SEVEN SPHERE ENTERPRISES, within six (6) days from receipt thereof, but said accused once in possession of the pieces of jewelry, with abuse of trust and confidence, misappropriate, misapply and convert to her own personal use and benefit the said amount of P23,375.50 and despite repeated demands to her to immediately account for and remit the proceeds of the sale of [sic] to return the goods, refused and failed and still refuses and fails to do so, to the damage and prejudice of SEVEN SPHERE ENTERPRISES in the aforementioned amount of P23,375.50.
WHEREFORE, premises considered, the Court finds the accused SOLEDAD TRIA guilty beyond reasonable doubt as principal of the crime of estafa under Art. 315 subdivision No. 1 paragraph (b) of the Revised Penal Code. She is hereby sentenced to suffer the indeterminate penalty of four (4) years two (2) months of prision correccional as minimum to eight (8) years of prision mayor as maximum. The accused is ordered to indemnify the private complainant of the unremitted amount of P23,370.00.
There being no showing on record that the private complainant paid the legal fees on the civil liability arising from the crime as there was no notice to pay sent to the private complainant, the legal fees shall be considered a lien on the judgment in satisfaction of said lien.
WHEREFORE, the appealed Decision in Criminal Case No. 970-V-01 is hereby AFFIRMED and the instant appeal is DISMISSED for lack of merit.
The petitioner sought reconsideration14 but her motion was denied in the CA Resolution15 dated September 18, 2012. Hence, this petition.
In its Comment,18 filed through the Office of the Solicitor General (OSG), the respondent prays that the petition be denied and the conviction meted by the courts a quo upon the petitioner be sustained for lack of reversible error.
None of these situations are, however, attendant in the present case. Instead, a re-examination of the evidence proffered by the prosecution and all records in the trial proceedings confirm the moral certainty of the petitioner’s guilt for the crime imputed to her.
(b) By misappropriating or converting, to the prejudice of another, money, goods or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.
The first, third and fourth elements are immediately discernible from the prosecution’s evidence. Exhibit “B” which is the ‘Receipt of Goods on Consignment’ shows that on March 8, 2000, the petitioner received pieces of jewelry on consignment from Seven Sphere with the obligation to return the unsold pieces or remit the sale proceeds of the sold items. This documentary evidence was corroborated by the testimony of Meneses, who signed the document in behalf of the consignor at the time of its execution. She identified the petitioner’s signature on the document and she confirmed the contents of the agreement as being a consignment contract, as well as the petitioner’s consequent duties thereunder to remit sale proceeds or return the unsold pieces of jewelry.
It is also indubitable from Meneses’ unrebutted testimony that Seven Sphere was prejudiced in the amount of P23,370.00 after the petitioner failed to return the remaining eleven (11) pieces of jewelry consigned to her or their value. Demand for payment was made upon the petitioner in a letter dated August 21, 2001 but despite receipt thereof, she was unable to return the remaining pieces of jewelry or remit their sale proceeds.
Indeed, misappropriation or conversion is deducible from the petitioner’s failure to return the last eleven (11) pieces of jewelry entrusted to her. She never endeavoured to refute this fact during trial and even until the herein appellate proceedings. Instead, the petitioner anchors her plea for acquittal on the claim that intent to defraud is negated by the established fact that out of the twenty two (22) jewelry items entrusted to her, she was able to return eleven (11) pieces.
The argument fails to convince. The petitioner’s asseveration bolsters rather than weakens the case for the prosecution, as it implies an admission of her receipt of twenty two (22) jewelry items from Seven Sphere and her failure to account for all of them.
The return of eleven (11) pieces of the jewelry items is inconsequential because she received twenty two (22) items on consignment and bound herself to return ALL of them if unsold. The petitioner breached her legal duty under the consignment contract to return or remit the sale proceeds of ALL of such items when she was able to return only half of them while the other eleven (11) pieces remained unreturned and unaccounted for, to the damage and prejudice of the consignor.
And which pieces of Jewelry I received in TRUST ONLY shall remain the property of the consignor until and unless fully paid and for me to sell within a period of six (6) days under the condition that should any or all said pieces of jewelry be sold by me. I am under obligation to remit to __________ the proceeds of the said sale and if the same are not sold, for me to return the remaining unsold goods to the consignor all within six (6) days as previously adverted to.
That finally, the consignee shall have no right or privilege to sell the goods on credit nor to name, appoint, or employ sub-agent(s) without the written authority of the consignor MARICHU REYES. Partial remittance of proceeds and acceptance thereof after the lapse of the period herein mentioned will not alter, modify nor constitute a novation of this receipt/agreement. In case of suit or Litigation, the venue shall be brought before the proper courts of Valenzuela.
Further, her alleged verbal agreement with Seven Sphere that she can render services in exchange for the dismissal of the case, casts no significant bearing to the herein proceedings. “Only the State may validly waive the criminal action against an accused.”28 The consequences of such agreement with Seven Sphere can affect only her civil liability to the former for the value of the misappropriated jewelry items. Such matter can be more properly threshed out during the execution stage of the civil aspect of this case before the trial court where the evidence of such verbal agreement as well as the deductions made on the petitioner’s salary can be received.
In fine, we find no reversible error in the CA decision affirming the findings of the RTC on the petitioner’s criminal liability for estafa. However, the penalty imposed upon her must be corrected.
Under Article 315 (1)(b) of the RPC, the penalty of estafa shall be “prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos. If such amount exceeds 22,000.00 pesos, the penalty so provided shall be imposed in its maximum period, adding one year for each additional 10,000 pesos provided that the total penalty which may be imposed shall not exceed twenty years.
Observing the foregoing guidelines, the Court deems it proper to impose upon the petitioner the indeterminate sentence of six (6) months and one (1) day of prision correccional as minimum to six (6) years, eight (8) months and twenty-one (21) days of prision mayor as maximum.
WHEREFORE, foregoing considered, the Decision dated April 20, 2012 and Resolution dated September 18, 2012 of the Court of Appeals in CA-G.R. CR No. 33529 which affirmed the Decision dated July 16, 2010 of the Regional Trial Court of Valenzuela City, Branch 172, in Criminal Case No. 970-V-01, finding petitioner Soledad Tria, GUILTY beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code, are hereby AFFIRMED with the MODIFICATION that she shall suffer the indeterminate sentence of six (6) months and one (1) day of prision correccional, as minimum to six (6) years, eight (8) months and twenty-one (21) days of prision mayor, as maximum.
Velasco, Jr., (Chairperson), Peralta, Bersamin,* and Villarama, Jr., JJ., concur.
1 Penned by Associate Justice Jane Aurora C. Lantion, with Associate Justices Isaias P. Dicdican and Danton Q. Bueser, concurring; rollo, pp. 24-31.
3 Issued by Judge Nancy Rivas-Palmones; id. at 47-49.
5 Exhibit “B,” Index of Exhibits & Index of Minutes.
22Milla v. People, G.R. No. 188726, January 25, 2012, 664 SCRA 309, 320.
23Pagsibigan v. People, et al., 606 Phil. 233, 241-242 (2009).
24 Pamintuan v. People, G.R. No. 172820, June 23, 2010, 621 SCRA 538, 546-547.
25 Supra note 22, at 319-320.
26 Exhibit “B,” Index of Exhibits & Index of Minutes.
27 Supra note 22, at 319.
28Degaños v. People, G.R. No. 162826, October 14, 2013, 707 SCRA 438, 453.
29 Supra note 24, at 552-553.
31People v. Temporada, G.R. No. 173473, December 17, 2008, 574 SCRA 258, 301-304.
32Lito Corpuz v. People of the Philippines, G.R. No. 180016, April 29, 2014 citing Cosme, Jr. v. People, 538 Phil. 52, 71-72 (2006).
34 Sy v. People, G.R. No. 183879, April 14, 2010, 618 SCRA 264, 273-274.

matches:
v.
Art. 315
In fine
v.
v.
v.
v.
v.
v.
v.
v.