Andres F. Cabezas v. Federal Bureau of Investigation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 14, 2024 Decided July 26, 2024
No. 22-5170
ANDRES F. CABEZAS,
APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-00145)
Brian D. Horwitz argued the cause and filed the briefs for
appellant.
Johnny H. Walker III, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Brian P. Hudak
and Jane M. Lyons, Assistant U.S. Attorneys. Kenneth A.
Adebonojo, Assistant U.S. Attorney, entered an appearance.

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Before: PILLARD and WILKINS, Circuit Judges, and
ROGERS, Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge ROGERS.
ROGERS, Senior Circuit Judge: Andres Cabezas appeals
the grant of summary judgment to the Federal Bureau of
Investigation on his motion pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, for records relating
to his conviction of receipt of child pornography, 18 U.S.C.
§ 2252A(a)(2). While his direct appeal of his conviction was
pending, Cabezas submitted FOIA requests for records under
his name or any identifier assigned to his name. When the FBI
failed after six months to produce responsive records in its
possession, he sued. The district court granted summary
judgment to the FBI, finding that it had conducted a reasonable
search, properly withheld documents pursuant to the FOIA and
the Privacy Act, 5 U.S.C. § 552a, and disclosed all segregable
information, and summarily denied Cabezas’s motions for
limited discovery and in camera review. Cabezas appeals,
principally challenging the adequacy of the search. He raises
multiple challenges, some without regard to statutory and
procedural preconditions. For the following reasons, we
affirm.
I.
In 2017, Cabezas was arrested in an FBI sting operation.
Following his indictment for online enticement of a minor to
engage in sexual activity, in violation of 18 U.S.C. § 2422(b),
he pled guilty on October 18, 2017, to receipt of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2). He
appealed his conviction and 151-month sentence to the U.S.
Court of Appeals for the Eleventh Circuit. While his direct
appeal was pending, Cabezas submitted FOIA requests in May

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2018 to the U.S. Attorney General, the United States Marshals
Service, and the FBI (Orlando Resident Agency) for records
under his name or any identifier assigned to his name. His
request extended to arrest reports, investigatory records, video
tapes, telephonic recordings, and photographs. On June 25,
2018, the FBI acknowledged receipt of his request and notified
him of related administrative matters, including copying fees.
After six months had passed and the FBI had not turned over
responsive records in its possession, Cabezas filed suit on
January 22, 2019, in the U.S. District Court for the District of
Columbia. He requested the court to declare that the FBI
violated the FOIA and the Privacy Act, enjoin it from
continued withholding of responsive records and order the
release without delay, expedite the proceedings, and grant
other appropriate relief. Compl. at 3.
On November 22, 2019, the FBI filed a motion for
summary judgment on the grounds that the responsive records
were properly withheld under FOIA Exemption 7(A), which
permits withholding of records that could interfere with
enforcement proceedings, and that Exemptions 3, 5, 6, 7(C),
and 7(E) also applied. Cabezas filed an opposition on April 27,
2020, and a supplemental opposition on June 23, 2020. Six
days later he moved to compel preservation of private email
records that he alleged were generated from non-governmental
email accounts in violation of FBI policy. By sworn
declaration of July 22, 2020, the FBI replied that it had
“followed the records management policies and procedures.”
Seidel Decl. ¶ 9 (July 22, 2020).
After the Eleventh Circuit affirmed Cabezas’s guilty plea
and sentence on December 5, 2019, United States v. Cabezas,
797 F. App’x 415, 417–19 (11th Cir. 2019), the FBI
acknowledged that Exemption 7(A) was inapplicable and that
its “main argument for withholding records [was] moot.”

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Status Report ¶ 3 (July 14, 2020). In total, the FBI released to
Cabezas 176 pages in full, 41 pages and two videos in part, and
withheld 74 pages in full (of which eleven were duplicative)
under the FOIA and Privacy Act exemptions. The FBI also
provided a Vaughn index describing each document withheld
and the applicable FOIA exemption. See Vaughn v. Rosen, 484
F.2d 820, 826–28 (D.C. Cir. 1973).
On April 1, 2021, the FBI renewed its motion for summary
judgment. Cabezas, in turn, filed a motion for summary
judgment on November 15, 2021, and evidentiary motions for
limited discovery and in camera review. The FBI did not
oppose the evidentiary motions and instead conducted another
search. In January and March 2022, the FBI made a
supplemental release of audio recordings and photographs.
The district court granted summary judgment to the FBI.
Cabezas v. FBI, No. 19-cv-145, 2022 WL 898789 (D.D.C.
Mar. 28, 2022). It found that the FBI had conducted a
reasonable search and properly withheld information pursuant
to FOIA Exemptions 5, 6, 7(C), and 7(E), and the Privacy Act,
and that the FBI had disclosed all segregable information. The
court summarily denied the motion for limited discovery and
the motion for in camera review. Order (Mar. 28, 2022).
Thereafter, the court denied Cabezas’s motion to alter or
amend the judgment.
Cabezas appeals the grant of summary judgment,
challenging the district court’s conclusions that the FBI’s
search was adequate and its withholdings justified by FOIA
exemptions, as well as the denial of his motions for limited
discovery and in camera review. This court “review[s] de novo
a district court’s grant of summary judgment in favor of an
agency which claims to have complied with FOIA.” Nation
Mag., Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 889

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(D.C. Cir. 1995). By contrast the court reviews the denial of
the motions for discovery and in camera review for abuse of
discretion. Montgomery v. IRS, 40 F.4th 702, 713 (D.C. Cir.
2022); Cruz v. McAleenan, 931 F.3d 1186, 1191 (D.C. Cir.
2019).
II.
Cabezas challenges the district court’s findings under the
FOIA, not the Privacy Act. Of his multiple challenges, some
are properly preserved for review. Others, however, are
forfeited by failure to be raised in his opening brief. Al-Tamimi
v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019). Still others
improperly attempt to incorporate by reference arguments
presented in the district court, id., and this court will consider
only those addressed in the FBI’s responsive appellate brief,
see id. at 6–7. Our analysis addresses his challenges by subject.
The FOIA “was enacted to facilitate public access to
Government documents” and “was designed ‘to pierce the veil
of administrative secrecy and to open agency action to the light
of public scrutiny.’” U.S. Dep’t of State v. Ray, 502 U.S. 164,
173 (1991) (quoting Dep’t of the Air Force v. Rose, 425 U.S.
352, 361 (1976)). But “[w]hile transparency and government
accountability are at the heart of FOIA’s mandate, Congress
exempted certain . . . records from disclosure to protect
important governmental and private interests in
confidentiality.” Bartko v. U.S. Dep’t of Just., 898 F.3d 51, 61
(D.C. Cir. 2018). The FOIA requires agencies to disclose
records upon request unless the records fall within one of nine
exemptions, which are to be “narrowly construed,” Milner v.
Dep’t of the Navy, 562 U.S. 562, 565 (2011) (quoting FBI v.
Abramson, 456 U.S. 615, 630 (1982)), yet “intended to have

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meaningful reach and application,” John Doe Agency v. John
Doe Corp., 493 U.S. 146, 152 (1989).
A.
To prevail on summary judgment against a challenge to
the adequacy of an agency’s search, “the agency must show
that it made a good faith effort to conduct a search for the
requested records, using methods which can be reasonably
expected to produce the information requested.” Oglesby v.
U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The
agency must also provide a “reasonably detailed affidavit,
setting forth the search terms and the type of search performed,
and averring that all files likely to contain responsive materials
(if such records exist) were searched.” Id. “Agency affidavits
are accorded a presumption of good faith[.]” SafeCard Servs.,
Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). On the
other hand, if the plaintiff provides “‘countervailing evidence’
as to the adequacy of the agency’s search,” Iturralde v.
Comptroller of the Currency, 315 F.3d 311, 314 (D.C. Cir.
2003) (internal citation omitted), or “the record leaves
substantial doubt as to the sufficiency of the search, summary
judgment for the agency is not proper,” Campbell v. U.S. Dep’t
of Just., 164 F.3d 20, 27 (D.C. Cir. 1998) (internal citation
omitted).
The FBI submitted three sworn declarations from Michael
G. Seidel, Section Chief of the Record/Information
Dissemination Section, dated July 22, 2020, March 2, 2021,
and March 11, 2022, and one sworn declaration from David M.
Hardy, the former Section Chief, dated November 20, 2019.
These affidavits were designed to demonstrate that the FBI had
made a good faith effort to conduct a reasonable search for the
records Cabezas requested. The FBI initially searched the
Central Records System index, which is “an extensive system

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of records” consisting of files compiled and maintained by the
“FBI in the course of fulfilling its integrated missions and
functions as a law enforcement, counterterrorism, and
intelligence agency.” Seidel Decl. ¶ 12 (Mar. 2, 2021). The
FBI used Cabezas’s names and identifiers: Andres Fernando
Cabezas, Andres F. Cabezas, and Andres Cabezas, which
resulted in locating material responsive to Cabezas’s FOIA
request.
In response to Cabezas’s argument in moving for
summary judgment that it failed to disclose all relevant records,
the FBI conducted an additional search of the Central Records
System. It also conducted a targeted search of the Tampa Field
Office, contacting the special agent who maintained Cabezas’s
criminal file. These supplemental searches resulted in the
release of additional records to Cabezas. Even though the
FBI’s declaration about the Tampa Field Office search was thin
regarding the identity of the custodian of the records, see Oral
Arg. Rec. at 44:40–47:20 (Feb. 14, 2024), the affidavits
described the FBI’s methodology for its searches, which
databases it searched, and how the search method was
calculated to locate responsive records. See Oglesby, 920 F.2d
at 68.
1.
Incomplete records. To the extent Cabezas contends that
the FBI did not maintain “complete records” in the Central
Records System, he overlooks records released in response to
the supplemental targeted search in the Tampa Field Office and
refers to likely emails on a commercial server and records on
his iPhone. See Appellant’s Br. 13.
Cabezas incorporates by reference his argument in the
district court that emails on a commercial Google email

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account used by FBI agents in his case should have been
released, relying on an affidavit from a digital evidence
forensic expert. His FOIA request was limited to “records
under [his] name and/or any identifier assigned to [his] name.”
FOIA Request at 1 (May 9, 2018). These email messages were
“serialized,” (i.e., “assigned a document number in the order in
which the document is added to the file,” Seidel Decl. ¶ 13
(Mar. 2, 2021)), and released to Cabezas.
With regard to messages exchanged with the undercover
agents and contained on his iPhone that Cabezas argued in the
district court should have been released, the FBI explained that
these too were serialized into Cabezas’s case file. Seidel Decl.
¶¶ 14–15 (Mar. 11, 2022). The FBI uncovered no other records
during its reasonable search relating to Cabezas’s iPhone. Id.
¶ 15. In the district court, Cabezas had relied on the affidavit
of his brother, Luis, who stated in a sworn affidavit after
inspecting Cabezas’s iPhone, which the FBI had seized, that he
was able to access the messaging screen but could not locate
“any of the text message conversations involved in [Cabezas’s]
case, nor the information [Cabezas] was asking for.” Luis F.
Cabezas Aff. ¶ 23. The affidavit did not offer information on
the substantive content. On appeal Cabezas does not develop
the argument why there should be additional records before this
court. “Mentioning an argument ‘in the most skeletal way,
leaving the court to do counsel’s work, create the ossature for
the argument, and put flesh on its bones’ is tantamount to
failing to raise it.” Al-Tamimi, 916 F.3d at 6 (quoting
Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir.
2005)).
2.
Records not uploaded to files. Cabezas renews his
argument that the FBI failed to upload all the responsive

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records to the Central Records System, stating that he “used the
fruits of his discovery in his criminal case to show that the
FBI’s records and record keeping policies were deficient.”
Appellant’s Br. 20. The district court explained that Cabezas
was conflating records in his criminal discovery and those in
the FBI’s possession when it received his FOIA request. On
appeal Cabezas neither explains why the district court erred nor
describes what other locations might contain responsive
records that have not been searched using reasonable means.
B.
The exemptions. Cabezas contends that responsive
records were improperly withheld under FOIA Exemptions.
The FBI relied on Exemptions 5, 6, and 7(C) & (E). Cabezas’s
challenge proves to be unpersuasive as to every exemption.
Exemption 5 protects from disclosure “inter-agency or
intra-agency memorandums or letters that would not be
available by law to a party other than an agency in litigation
with the agency,” 5 U.S.C. § 552(b)(5), and incorporates “the
deliberative process privilege, attorney-client privilege, and
attorney work-product privilege.” U.S. Fish & Wildlife Serv.
v. Sierra Club, Inc., 592 U.S. 261, 267 (2021). The FBI
withheld two passages of a non-public “detailed operational
plan containing information related to [Cabezas’s] arrest”
under Exemption 5: Bates No. 122, for which the FBI invoked
the deliberative process privilege and attorney-client privilege,
and Bates No. 125, for which the FBI invoked the deliberative
process privilege. Seidel Decl. ¶ 20(b) (Mar. 11, 2022).
The deliberative process privilege “covers ‘documents
reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which
governmental decisions and policies are formulated.’” Dep’t

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of the Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 150 (1975)). To fall within its protections, the
document must be predecisional and deliberative. Sierra Club,
Inc., 592 U.S. at 268. A document is predecisional if it was
“generated before the agency’s final decision on the matter,”
and deliberative if it was “prepared to help the agency
formulate its position.” Id. The agency must also demonstrate
that disclosing the records would foreseeably harm an interest
protected under the relevant exemption by “concretely
explain[ing] how disclosure ‘would’ — not ‘could’ —
adversely impair internal deliberations.” Reps. Comm. for
Freedom of the Press v. FBI, 3 F.4th 350, 369–70 (D.C. Cir.
2021) (quoting Machado Amadis v. U.S. Dep’t of State, 971
F.3d 364, 371 (D.C. Cir. 2020)).
The FBI properly relied on the deliberative process
privilege to withhold portions of an “FBI operational plan,”
including material containing “suggestions regarding FBI
operational strategies” and “memorializ[ing] communications
with an Assistant United States Attorney . . . who . . . provided
advice regarding investigative strategy related to [Cabezas’s]
case.” Seidel Decl. ¶ 37 (Mar. 2, 2021). This material is
predecisional. It was prepared prior to the specific operation,
and it does not “reflect final agency decisions.” Id. The
material is also deliberative. The FBI explained that the
Assistant United States Attorney’s “recommendations and
legal analysis were contingent on predicted scenarios that were
only speculated to potentially occur.” Seidel Decl. ¶ 18 (Mar.
11, 2022). The FBI further explained how release of this
information could harm future FBI investigations by creating a
chilling effect on the FBI’s employees’ willingness to share
ideas and would damage the integrity of the FBI’s investigative
plans and strategies. Seidel Decl. ¶ 37 (Mar. 2, 2021).

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Cabezas insists that the FBI improperly invoked the
deliberative process privilege to protect “a fact-based arrest
operations plan,” which has no relation to “agency [policy
oriented] judgment.” Appellant’s Br. 14–16 (internal citation
omitted). He relies on Shapiro v. CIA, 247 F. Supp. 3d 53
(D.D.C. 2017). There the district court suggested that a draft
Operations Plan on preparations for an American delegation to
attend the funeral of South Africa President Nelson Mandela
might not be deliberative. Id. at 63–64. Upon in camera
review the court concluded that the Plan was both
predecisional and deliberative. Shapiro v. CIA, 272 F. Supp.
3d 115, 118 (D.D.C. 2017), vacated as moot, No. 22-5144,
2024 WL 1061322 (D.C. Cir. Mar. 8, 2024). Given the nature
of the sting investigation of Cabezas and others, Cabezas
provides no basis for this court to conclude that the FBI has
mischaracterized the content of the material withheld under
Exemption 5. The FBI’s sworn declarations state how the
withheld records fall within the deliberative process privilege
of Exemption 5. Cabezas points to nothing in the record to the
contrary. See Watkins L. & Advoc., PLLC v. U.S. Dep’t of
Just., 78 F.4th 436, 451 (D.C. Cir. 2023).
The FBI also invoked two other FOIA Exemptions to
justify redaction of personal identifying information for
government employees and various third parties. Exemption 6
protects from disclosure “personnel and medical files and
similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). Because the text of “Exemption 7(C)’s privacy
[provision] is broader than . . . [that] in Exemption 6,” U.S.
Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489
U.S. 749, 756 (1989), the court need not “consider Exemption
6 separately,” Roth v. U.S. Dep’t of Just., 642 F.3d 1161, 1173
(D.C. Cir. 2011).

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Exemption 7(C) protects “records or information
compiled for law enforcement purposes . . . to the extent that
the production of such law enforcement records or information
. . . could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). It
requires the court to “balance the . . . privacy interest against
the public interest in disclosure.” Nat’l Archives & Recs.
Admin. v. Favish, 541 U.S. 157, 171 (2004). The requestor
must show that there is a significant public interest in the
requested information and that the information is “likely to
advance that interest.” Id. at 172.
Cabezas does not challenge that the records at issue were
“compiled for law enforcement purposes,” 5 U.S.C.
§ 552(b)(7). Instead he asserts that the public interest in his
case outweighs the privacy interests of persons whose
information was redacted. Appellant’s Br. 13. In his view, the
multiple instances of alleged misconduct by FBI agents during
his investigation that he has identified would establish a
significant public interest in learning the withheld identities.
Cabezas alleges that (1) FBI case agents “potentially destroyed
iPhone records and evidence” and failed to upload these
records to the Central Records System, Cabezas’s Mem. for
Summ. J. at 18 (citing his brother’s affidavit); (2) in 2013 an
FBI special agent used his home computer in violation of FBI
policy; (3) another agent created a Craigslist posting on an
unauthorized T-Mobile cellphone; and (4) the FBI’s attempt to
return his cellphone while he was in prison constitutes
misconduct because the iPhone was forfeited and in evidence.
The FBI invoked Exemption 7(C) to withhold identifying
information of FBI special agents and professional staff, an
Assistant United States Attorney and other local law
enforcement personnel, third parties mentioned in investigative
records, a third party of investigative interest to the FBI, and

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an individual who provided information to the FBI in the
course of the investigation of Cabezas. Each of these
individuals has a cognizable privacy interest. E.g., Schrecker
v. U.S. Dep’t of Just., 349 F.3d 657, 661 (D.C. Cir. 2003);
Nation Mag., Wash. Bureau, 71 F.3d at 894. Still, “where there
is a privacy interest protected by Exemption 7(C) and the
public interest . . . asserted is to show that responsible officials
acted negligently or otherwise improperly in the performance
of their duties,” information may be released if the requester
“produce[s] evidence that would warrant a belief by a
reasonable person that the alleged Government impropriety
might have occurred.” Favish, 541 U.S. at 174; see SafeCard
Servs., Inc., 926 F.2d at 1206.
Cabezas maintains that the instances of alleged FBI
misconduct were sufficient to overcome the privacy interests
of an unspecified number of these individuals. Appellant’s Br.
13, 18. He did not develop these claims on appeal, opting
instead to incorporate by reference his arguments in the district
court. See Appellee’s Br. 32. Reliance on incorporation by
reference to make arguments on appeal may not forfeit all of
Cabezas’s claims to the extent the FBI has responded to some
in its appellate brief. See Appellees’ Br. 32–34; Al-Tamimi,
916 F.3d at 6–7. But vague allegations and essentially “bare
suspicion[s]” are not “evidence that would warrant a belief by
a reasonable person that the alleged Government impropriety
might have occurred.” Favish, 541 U.S. at 174; see Kowal v.
U.S. Dep’t of Just., No. 22-5231, 2024 WL 3418844, at *5
(D.C. Cir. July 16, 2024); SafeCard Servs., Inc., 926 F.2d at
1206. Cabezas has not proffered such evidence.
Additionally, the FBI invoked Exemption 7(E) to withhold
undercover communications used in the investigation of
Cabezas, the operational plan to which Exemption 5 applies in
part, and the details of investigative databases and their search

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results. Exemption 7(E) provides for the withholding of law
enforcement records that “would disclose techniques and
procedures for law enforcement investigations or prosecutions,
or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.” 5
U.S.C. § 552(b)(7)(E). The exemption “only requires that the
[agency] demonstrate logically how the release of the
requested information might create a risk of circumvention of
the law.” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C.
Cir. 2009) (internal quotation omitted).
Cabezas stated during oral argument in this court that he
had challenged the FBI’s invocation of Exemption 7(E) in the
district court and was now replying to the FBI’s brief. Oral
Arg. Rec. at 6:43–7:40 (Feb. 14, 2024). He did not include an
objection in his opening brief, however, see Al-Tamimi, 916
F.3d at 6, and offers no persuasive explanation for his failure.
On this record, Exemption 7(E) suffices to support the FBI’s
withholding of details about an undercover operation, the
operational plan, and database information and search results.
Cabezas’s other preserved objections to the district court’s
FOIA findings lack merit. For instance, as an example of the
FBI’s inappropriate invocation of Exemptions 6 and 7(C),
Cabezas speculates that the FBI withheld his given alias in
documents concerning the indictment of an unidentified person
in the Eleventh Circuit. Appellant’s Br. 21. The FBI explained
that the redacted name is not that of Cabezas, but of a “third
party of investigative interest.” Seidel Decl. ¶ 19(e) (Mar. 11,
2022); see also Oral Arg. Rec. at 47:40–48:12 (Feb. 14, 2024).

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C.
Change of agency position. Cabezas’s suggestion in his
reply brief that the FBI has changed its position in this court
regarding allegations of misconduct is not well taken. Judicial
estoppel “generally prevents a party from prevailing in one
phase of a case on an argument and then relying on a
contradictory argument to prevail in another phase.” New
Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting
Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000)). The FBI
agreed with the district court that Cabezas “alluded to
government misconduct but he fails to identify any specific
misconduct.” Opp’n to Pl.’s Mot. to Alter or Amend J. at 3
(May 6, 2022) (internal citation omitted).
Cabezas’s view that the FBI “acknowledges that [he]
specified the alleged misconduct,” Reply Br. 8, shows only the
FBI now describes his allegations as unsupported. The FBI has
not conceded that Cabezas’s allegations were of specific
misconduct. The FBI states instead that Cabezas alleged
“purported misconduct” was never developed in this court.
Appellee’s Br. 32. This shows no inconsistency in the FBI’s
position that would warrant application of judicial estoppel.
D.
Remand for findings. Finally, Cabezas seeks a remand for
development of an adequate record on the ground that the
district court abused its discretion by failing to provide any
reasoning for denying his motions for limited discovery and for
in camera review. He relies on Summers v. Department of
Justice, 140 F.3d 1077, 1078 (D.C. Cir. 1998). Appellant’s Br.
10. Unlike there, no such abuse of discretion occurred here.
The reason for summary denial of his discovery and in camera
motions is self-evident in view of the district court’s reasons

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for granting summary judgment to the FBI. See
Pardo-Kronemann v. Donovan, 601 F.3d 599, 612 (D.C. Cir.
2010). Given the evidence of an adequate search, see DiBacco
v. U.S. Army, 795 F.3d 178, 188 (D.C. Cir. 2015), and
Cabezas’s failure to “provide ‘countervailing evidence,’”
Iturralde, 315 F.3d at 314 (internal citation omitted), in the
district court or to proffer such evidence on appeal, a remand
would serve no purpose.
Accordingly, the court affirms the judgment of the district
court granting summary judgment to the FBI and the order
denying Cabezas’s motions for limited discovery and for in
camera review.

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