No. 10-5068.United States Court of Appeals, District of Columbia Circuit.
Filed On: September 3, 2010.
BEFORE: Henderson, Tatel, and Kavanaugh, Circuit Judges
Per Curiam
ORDER
Upon consideration of the motion for appointment of counsel; appellant’s brief; the motion for summary affirmance, and the opposition thereto, it is
ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED that the motion for summary affirmance be granted. The merits of the parties’ positions are so clear as to warrant summary action. SeeTaxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The district court properly relied on the agencies’ affidavits and Vaughn index in awarding summary judgment to the Department of Justice and Drug Enforcement Administration on the adequacy of the searches conducted pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and on the decision to withhold specific information pursuant to several FOIA exemptions. SeeMorley v. Central Intelligence Agency, 508 F.3d 1108, 1114-16 (D.C. Cir. 2007). Contrary to appellant’s assertions, an in camera inspection of withheld records is not necessary where, as here, “a district court finds that a law enforcement agency’s affidavits sufficiently describe the documents and set forth proper reasons for invoking an exemption.” Juarez v.Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008). The failure of the agencies to produce
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reports prior to January 29, 2003, does not demonstrate that the searches were inadequate, because the failure of a search to produce particular documents, or “mere speculation that as yet uncovered documents might exist,” does not undermine the adequacy of a search. See Wilburv. Central Intelligence Agency, 355 F.3d 675, 678
(D.C. Cir. 2004). The district court did not abuse its discretion in limiting discovery because appellant offered no evidence of bad faith to rebut the agencies’ affidavits. SeeBaker Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). Although appellant claims the agencies withheld exculpatory evidence during his criminal proceedings, it is not sufficient to make unsubstantiated assertions of government wrongdoing in claiming that the public interest outweighs the interest in protecting exempt information from disclosure; he must “produce evidence that would warrant a belief by a reasonable person that the alleged [wrongdoing] might have occurred.” Boyd v. CriminalDiv. of the Dep’t of Justice, 475 F.3d 381, 387-88 (D.C. Cir. 2007).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc.See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.
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