Jihad Ibn Barnes v. Federal Bureau of Investigation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2021 Decided June 3, 2022
No. 20-5139
J IHAD I BN B ARNES ,
APPELLANT
v.
FEDERAL BUREAU OF I NVESTIGATION ,
APPELLEE
Consolidated with 20-5167
Appeals from the United States District Court
for the District of Columbia
(No. 1:16-cv-00205)
Evan D. Miller argued the cause for appellant. With him
on the briefs was Joshua S. Johnson.
Diana Valdivia, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief was R. Craig Lawrence,
Assistant U.S. Attorney.

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Before: SRINIVASAN , Chief Judge, KATSAS , Circuit Judge,
and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KATSAS .
KATSAS , Circuit Judge: This appeal turns on when a
criminal defendant, as part of a plea agreement, may waive the
right under the Freedom of Information Act to seek
government records related to his case. In Price v. U.S.
Department of Justice Attorney Office, 865 F.3d 676 (D.C. Cir.
2017), we held that such waivers must serve a legitimate
criminal-justice interest to be enforceable. In this case, we hold
that the waiver at issue is enforceable because it advances an
interest in protecting the safety of a confidential informant. We
further hold that the waiver extends to all the disputed records.
I
Upon receiving information that appellant Jihad Barnes
posed a threat to national security, the Federal Bureau of
Investigation opened a terrorism investigation against him.
During the investigation, Barnes proposed to a confidential
informant that they rob and possibly murder a diamond dealer
in Northern Virginia. After Barnes provided two loaded
semiautomatic handguns for use in the robbery, the FBI
arrested him. At that time, Barnes had already been convicted
of manslaughter and two armed robberies. A grand jury
charged him with possessing a firearm as a felon.
While in pretrial detention, Barnes orchestrated a plot to
prevent the informant from testifying against him. According
to the government, Barnes told Rasheda Savoy, his common-
law wife, that an informant was responsible for his arrest.
Through Savoy and other associates, Barnes sought to persuade
or coerce the informant to testify falsely at his trial. At

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Barnes’s direction, Savoy used an online tracing service to
connect the informant’s phone number to a name and city. On
Facebook, she also discovered that the informant had a son and
daughter. Barnes and Savoy planned to obtain the informant’s
home address by reaching out to his family through a
fraudulent Facebook account. Savoy showed Barnes a
photograph of the person she had identified. After Barnes
confirmed that this individual was the informant, they asked
various confederates to hunt him down. The FBI uncovered
the plot before Barnes learned of his address.
A grand jury issued a superseding indictment against
Barnes, which set forth these allegations and added charges for
conspiracy to commit witness tampering and attempt to
obstruct an official proceeding. The government produced
extensive discovery to Barnes, including over 200 pages of
redacted FBI reports, cell-phone subscriber records, and audio
recordings from meetings between Barnes and the informant.
Barnes eventually pleaded guilty to the felon-in-
possession count, and the government agreed to drop the
tampering and obstruction charges. As part of the plea deal,
Barnes waived all rights “to request or receive from any
department or agency of the United States any records
pertaining to the investigation or prosecution of this case,
including without limitation any records that may be sought
under the Freedom of Information Act.” J.A. 542–43. For her
part, Savoy pleaded guilty to conspiring with Barnes to tamper
with a witness, and she signed a statement admitting the
government’s various allegations about her plot with Barnes to
intimidate or threaten the informant.
In 2015, Barnes filed a FOIA request for all FBI records
containing his name, as well as FBI records containing

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allegations of terrorism by him or by a particular mosque. The
FBI declined to provide the requested documents.
Barnes sued, and the FBI moved for summary judgment
based on the waiver in Barnes’s plea bargain. The district court
granted the motion as to documents relating to the terrorism
investigation into Barnes. The court concluded that the waiver
was enforceable because it served the government’s legitimate
interest in protecting the informant. After Barnes voluntarily
dismissed his claims for the other documents, the district court
closed the case. Barnes appealed, and we have jurisdiction
under 28 U.S.C. § 1291.
II
In FOIA cases, we review de novo summary judgments for
the government. Schrecker v. DOJ, 349 F.3d 657, 661–62
(D.C. Cir. 2003). We also interpret the terms of a plea
agreement de novo. United States v. Moreno-Membache, 995
F.3d 249, 254 (D.C. Cir. 2021).
A
As a general matter, plea bargains may waive the “most
basic rights of criminal defendants,” including a wide range of
Fourth, Fifth, and Sixth Amendment rights. Peretz v. United
States, 501 U.S. 923, 936 (1991); see United States v. Ruiz, 536
U.S. 622, 629–30 (2002). Likewise, statutory rights are
waivable absent some affirmative indication to the contrary.
United States v. Mezzanatto, 513 U.S. 196, 201 (1995).
Despite these background principles, and despite FOIA’s
silence about waiver, Price took a more exacting approach to
plea bargains that waive a defendant’s right to seek records
related to his case. In FOIA, we perceived a “public policy” to
facilitate the disclosure of exculpatory evidence and the
development of ineffective-assistance claims. 865 F.3d at 682–

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83. We therefore held that plea-bargain waivers of a FOIA
right to seek records about the case must advance a “legitimate
criminal-justice interest” to be enforceable. Id. at 681. On
Price’s facts, we found this standard not met because the
government had failed to identify any such interest served by
the waiver at issue. Id. at 678. Instead, the government had
merely asserted an interest in “efficient and effective
prosecution,” but failed to explain how a FOIA waiver served
that interest. Id. at 681–82. The government further asserted
an interest in avoiding FOIA litigation by prisoners with “a lot
of time on their hands,” but we found that argument
unpreserved. Id. at 682.
In this case, the FBI asserts an interest in protecting the life
and safety of its confidential informant. That is obviously a
legitimate criminal-justice interest. FOIA itself recognizes the
importance of protecting informants, in exempting from
disclosure records that “could reasonably be expected to
disclose the identity of a confidential source,” 5 U.S.C.
§ 552(b)(7)(D), or “could reasonably be expected to endanger
the life or physical safety of any individual,” id. § 552(b)(7)(F).
The Witness Security Reform Act of 1984 requires the Justice
Department to protect potential witnesses and their families,
such as by helping them establish a new identity, find housing
and employment, and meet basic living needs. 18 U.S.C.
§ 3521(b). Likewise, the Department’s prosecution manual
states that “[t]he safety/security of an informant assisting in an
investigation is the responsibility of the investigative agency
utilizing the informant.” U.S. Dep’t of Justice, Justice Manual,
§ 9-21.110 (2018), https://www.justice.gov/jm/jm-9-21000-
witness-security. And in many contexts, the Supreme Court
has recognized the importance of protecting informants. See,
e.g., CIA v. Sims, 471 U.S. 159, 172 (1985) (intelligence
informants will “close up like a clam” unless government can
protect their identities (cleaned up)); Roviaro v. United States,

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353 U.S. 53, 59 (1957) (recognizing “Government’s privilege
to withhold from disclosure the identity of persons who furnish
information of violations of law to officers charged with
enforcement of that law”).
The FOIA waiver in Barnes’s plea agreement furthers the
government’s interest in witness security, so it is enforceable.
Before the FBI even began its investigation, Barnes had served
long sentences for manslaughter and two armed robberies. In
preparing for another robbery, he procured semiautomatic
weapons and contemplated killing or harming the intended
victim. The government also reasonably feared that Barnes
posed a threat to the informant, as reflected in Barnes’s
superseding indictment and Savoy’s admissions. Specifically,
the government believed that Barnes, based on only a phone
number, had used online resources to discover the name of the
informant, a photograph of him, and the identity of his family
members. It believed that Barnes wished to “confront” the
informant to secure perjured testimony. J.A. 334. And it
believed he was able to accomplish all of this from prison. In
short, the government had good reason to insist on a FOIA
waiver to make it harder for Barnes to learn more sensitive
information about the informant.
Despite all of this, Barnes responds that the waiver was
unnecessary because FOIA itself already protects informants.
Barnes invokes Exemptions 7(D) and 7(F), which permit the
government to withhold documents if their release “could
reasonably be expected to disclose the identity of a confidential
source” or “to endanger the life or physical safety of any
individual.” 5 U.S.C. § 552(b)(7)(D), (F). But FOIA
processors are hardly infallible in determining whether these
provisions apply to specific records. Moreover, Barnes himself
has unique knowledge about the informant from their
interactions, which Barnes augmented through criminal

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discovery and the tampering conspiracy. For these reasons, the
FBI could worry that disclosing some nugget of information
might not seem to put its informant at greater risk, but that
Barnes nonetheless could exploit the information for that
purpose. And given that concern, the FBI had a legitimate
interest in seeking a waiver despite the protection afforded by
the exemptions.
The FBI documented its concerns in this case. A section
chief in its Information Management Division noted that
release of information provided by informants often may reveal
their identities. J.A. 384. An attorney involved in Barnes’s
prosecution explained that Barnes’s “intimate knowledge of his
own conduct” makes him “uniquely positioned” to deduce
from any released records the location of the informant, and
that FOIA staff, “who necessarily do not share Barnes’
personal knowledge of the circumstances giving rise to the
prosecution,” could not be expected to spot all potentially
revealing information. J.A. 336. The Bureau provided at least
one example where an inmate with a history of witness
intimidation managed to piece together facially innocuous
information provided under FOIA to determine an informant’s
identity. See United States v. White, No. 08-cr-0054 (W.D. Va.
Oct. 5, 2020), ECF No. 411-1. And it noted that, over a recent
three-year period, close to 700 government witnesses and
informants have been threatened, while over 60 have been
murdered. Gershman, Why Life for ‘Snitches’ Has Never Been
More Dangerous, Wall St. J. (June 20, 2017). For these
reasons, we conclude that the FOIA waiver advances the
government’s legitimate interest in protecting an informant.
Barnes further responds that we must weigh that interest
against the harms of enforcing the waiver. He objects that the
waiver disables him from gathering hypothetical evidence of
law-enforcement misconduct. We are hard-pressed to imagine

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what that might be, given the vague and unsupported nature of
Barnes’s misconduct allegations. In any event, although Price
recognized the reduced ability to gather evidence as a harm, we
declined to enforce a FOIA waiver only because the
government had “failed to identify any legitimate criminal-
justice interest served by the waiver.” 865 F.3d at 678
(emphasis added); see also id. at 681 (“the government has not
pointed us to any legitimate criminal-justice interest served by
allowing for FOIA waivers in plea agreements”). Here, by
contrast, the FBI has explained that this waiver advances its
interest in protecting the safety of a confidential informant.
Nothing more is required for us to enforce it.1
B
Barnes finally contends that the waiver does not cover all
the records that he requested. In his plea agreement, Barnes
waived the right to make a FOIA request for “any records
pertaining to the investigation or prosecution of this case.” J.A.
542–43. In Barnes’s view, this waiver covers only documents
that pertain to the firearms, tampering, and obstruction charges
ultimately filed against him. And since the government never
filed any terrorism charges, Barnes believes that the waiver
does not apply to the FBI’s terrorism investigation into him.
We disagree. By its terms, the waiver covers all records
pertaining to the FBI’s “investigation” of the “case” against
Barnes. The terrorism investigation was part of this
investigation because it culminated in the charges filed against
Barnes. The investigation began as one focused on terrorism,
1 Given our disposition, we need not consider the FBI’s
additional argument that the waiver is enforceable because it furthers
efficient prosecutions and protects information about how the FBI
conducts investigations into national security.

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but it developed into a firearms case when the FBI arrested
Barnes for possessing two loaded handguns. The investigation
further developed into a tampering and obstruction case when
Barnes, while detained on the firearms charge, sought to
prevent an informant from testifying against him. During this
time, the FBI viewed itself as conducting “one coherent
investigation” against Barnes, so it organized all its records
about Barnes into “a single investigatory file.” J.A. 385.
Because the investigation of the case against Barnes
encompassed the terrorism investigation, the FOIA waiver
covers records relating to it.2
III
The district court correctly granted summary judgment to
the FBI.
Affirmed.
2 The parties dispute whether Virginia contract law or general
principles of contract law govern the interpretation of the plea
agreement. We need not decide that issue because both bodies of
law would instruct us to begin with the plain text of the agreement,
which is decisive in this case. Compare PMA Capital Ins. Co. v. US
Airways, Inc., 626 S.E.2d 369, 372 (Va. 2006), with Moreno-
Membache, 995 F.3d at 257.

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