U.S. v. Miramontez ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-5612
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUSEBIO MIRAMONTEZ, JR.,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
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(June 28, 1993)
Before GOLDBERG, GARWOOD and WIENER, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Eusebio Miramontez, Jr. (Miramontez),
proceeding pro se, appeals from the district court's order denying
his request for disclosure of grand jury transcripts. Because the
district court did not abuse its discretion in determining that
Miramontez failed to show a particularized need for such
disclosure, we affirm.
Facts and Proceedings Below
In 1987, Miramontez pleaded guilty to one count of engaging in
a continuing criminal enterprise in violation of 21 U.S.C. § 848.
He was sentenced to a term of imprisonment of thirty years. In
1988 this Court dismissed his direct appeal. Miramontez then filed
two motions to correct or reduce his sentence, pursuant to FED. R.
CRIM. P. 35, and two motions to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. The district court denied
all four motions. Miramontez appealed only the denial of his
second section 2255 motion; in 1991, this Court affirmed that
denial.
At issue here is Miramontez's petition for disclosure of grand
jury transcripts, which he filed pro se on April 2, 1992. The
government responded on April 21, 1992. The district court,
construing the motion both as a request for disclosure under the
federal Freedom of Information Act (FOIA), 5 U.S.C. §§ 551, et
seq., and as a request under FED. R. CRIM. P. 6(e),1 denied the
motion in an order dated April 24, 1992.
On April 27, Miramontez served a reply to the government's
response to his motion for disclosure of grand jury transcripts; on
May 26, he filed a "Brief in support of Petitioner(s) [sic] Motion
to Set Aside ``Order' of Dismissal," which was, in essence, a motion
for reconsideration pursuant to FED. R. CIV. P. 60(b), asking that
the district court reconsider its April 24 ruling. The district
court entered an order on June 3, 1992, denying all relief
requested in the two pleadings.
1
FED. R. CRIM. P. 6(e)(3)(C)(i) provides that "[d]isclosure
otherwise prohibited by this rule of matters occurring before the
grand jury may also be madeSQ(i) when so directed by a court
preliminarily to or in connection with a judicial proceeding."
2
On June 12, Miramontez filed a notice of appeal, dated June 7,
1992.
Discussion
I. Jurisdiction
This Court may raise, sua sponte, the issue of its own
jurisdiction. Tijerina v. Plentl, 984 F.2d 148, 150 (5th Cir.
1993). There is a question as to whether Miramontez's notice of
appeal was timely. This turns on whether the action for disclosure
of the grand jury transcripts is civil, in which case Miramontez
had sixty days to appeal from the April 24 order of the district
court, pursuant to FED. R. APP. P. 4(a), as this is a case in which
the United States is a party, or whether it is a criminal action,
in which Miramontez had only ten days to file his notice of appeal
under FED. R. APP. P. 4(b).
The district court denied the motion for disclosure of the
grand jury transcripts on April 24, 1992. Miramontez filed his
notice of appeal on June 12, 1992, within sixty days of the
district court's April 24 ruling. Because we determine that
Miramontez's petition for grand jury transcripts is civil in
nature, this appeal is timely under Rule 4(a).2
2
Were we to conclude that this action is criminal, the appeal
would be untimely, and we would lack jurisdiction to consider it.
In criminal proceedings, motions for reconsideration, such as
Miramontez's motion to set aside the order of dismissal, "are
timely filed if made within the period allotted for the noticing
of an appeal." United States v. Cook, 670 F.2d 46, 48 (5th
Cir.), cert. denied, 102 S. Ct. 2255 (1982). Here, if we treat
this case as criminal, the motion for reconsideration is timely
only if filed within ten days of the district court's order
denying his petition for disclosure of grand jury materials.
Filed on May 26, the motion followed the district court's order
by thirty-two days. Because Miramontez's motion for
3
There are several factors supporting our conclusion that this
action is civil. When Miramontez filed his request for the grand
jury transcripts, his criminal conviction had long been final: he
had pleaded guilty, the district court had sentenced him, and this
Court had dismissed his direct appeal years previously. He had
filed two Rule 35 motions and two habeas proceedings, all of which
the district court had denied; we had affirmed the dismissal of the
last habeas petition the preceding year. Further, the district
court construed his petition, in part, as a request under the FOIA.
Although Miramontez claims on appeal that he did not intend his
petition as a FOIA request, the district court's interpretation
emphasizes the civil aspect of these proceedings. In addition,
Miramontez's petition for disclosure of the grand jury transcripts
states that it is filed for the purpose of obtaining information to
support the filing of a petition for a writ of habeas corpus under
28 U.S.C. § 2241, a civil action. Finally, although he filed the
petition for disclosure in the same court and under the same docket
number as his earlier criminal proceeding, this does not require
that his petition for grand jury disclosure be treated as a
criminal action. In fact, filing the petition in the same district
court was proper as that court supervised the grand jury's
proceedings. Douglas Oil Co. v. Petrol Stops Northwest, 99 S. Ct.
1667, 1676 (1979) (requests for disclosure of grand jury testimony
must, as a general rule, be directed to the court that supervised
reconsideration was untimely, the district court lacked
jurisdiction to consider it. Id. The time allowed for appeal of
the April 24 order lapsed.
4
the grand jury's proceedings, even when required for a civil
proceeding in another judicial district).
II. Denial of Request for Grand Jury Transcripts
In his motion for disclosure of grand jury transcripts,
Miramontez sought to obtain access to the transcripts of all grand
jury proceedings related to his criminal case. The district court
analyzed this motion both under the FOIA and under FED. R. CRIM. P.
6(e). Miramontez now disavows any FOIA aspect to his request for
the grand jury materials.3
A district court's denial of a motion for disclosure of grand
jury transcripts under Rule 6(e) is reviewed for an abuse of
discretion.4 Douglas Oil, 99 S. Ct. at 1675; In re Grand Jury
Testimony, 832 F.2d 60, 62 (5th Cir. 1987).
The proper functioning of the grand jury system depends upon
the secrecy of the grand jury proceedings. Douglas Oil, 99 S. Ct.
at 1672. The burden is on the party seeking disclosure to show
that "a particularized need" exists for the materials that
outweighs the policy of secrecy. Pittsburgh Plate Glass Co. v.
3
Even if Miramontez were asserting the FOIA as grounds for
disclosure, he would not prevail. The FOIA directs agencies of
the federal government to make certain information available to
the public. 5 U.S.C. §§ 552, et seq. Federal courts, however,
are expressly excluded from the definition of "agency" for
purposes of FOIA disclosure requirements. 5 U.S.C. § 551(1)(B).
"The cases which have considered the question [of whether FOIA
requires disclosure of grand jury materials], by one route or
another, have uniformly concluded that grand jury information
within the scope of [FED. R. CRIM. P.] 6(e) is exempt from FOIA
disclosure." Fund for Constitutional Gov't v. Nat'l Archives and
Records Service, 656 F.2d 856, 868, n.28 (D.C. Cir. 1981).
4
Orders granting or denying disclosure of grand jury
materials for use in civil actions are appealable. 15B WRIGHT,
MILLER, & COOPER, FEDERAL PRACTICE & PROCEDURE, § 3914.24, p.181 (1992).
5
United States, 79 S. Ct. 1237, 1241 (1959).
In order to meet this burden, Miramontez must demonstrate that
(1) the material he seeks is needed to avoid a possible injustice
in another judicial proceeding, (2) the need for disclosure is
greater than the need for continued secrecy, and (3) his request is
structured to cover only material so needed. Douglas Oil, 99 S. Ct.
at 1674. This showing "must be made even when the grand jury whose
transcripts are sought has concluded its operations." Id. The
district court found that Miramontez had made no effort to satisfy
any of these conditions and denied his request.
It is clear that Miramontez did not show a "particularized
need" under any of the three elements set forth in Douglas Oil.
Even construing his pleadings liberally, as the district court was
required to do because of his pro se status, Wesson v. Oglesby, 910
F.2d 278, 281 (5th Cir. 1990), he has not furnished reason
sufficient to require disclosure of his grand jury proceedings.
His petition is wholly general and does not request any specific
portion of the proceedings for disclosure. Miramontez claims a
general "right" to disclosure of the transcripts. The mere
contention that the party seeking transcripts has a "right" to the
transcripts, without a proper showing of need, will not suffice to
justify disclosure. Pittsburgh Plate Glass Co., 79 S. Ct. at 1241.
In his pleadings before the district court, as well as in his
briefs on appeal, Miramontez describes errors or defects in grand
jury proceedings, such as perjury, misleading hearsay evidence,
bias, prosecutorial misconduct, and racial discrimination, and
cites cases in which such matters have provided grounds for
6
disclosure of the proceedings. He does not, however, assert that
any of these errors or defects occurred in his own grand jury
proceedings, nor does he hint at any evidence in the grand jury
materials that might reveal the presence of such an error or
defect.
In support of his claim on appeal that the district court
abused its discretion in refusing to grant him access to the grand
jury materials, Miramontez relies on Dennis v. United States, 86
S. Ct. 1840 (1966). This case, however, is not applicable here.
There, the Supreme Court held that it was an abuse of discretion
for a district court to refuse to disclose, in a criminal trial,
the grand jury testimony of witnesses who also testified at trial.
The Court noted that the traditional reasons justifying
nondisclosure were not significant in those circumstances. Dennis,
86 S. Ct. at 1850, n.18. The defendants in that case had
demonstrated a "particularized need" for the disclosure and had
shown a likelihood that the witnesses' testimony at trial was
inconsistent with their earlier grand jury testimony. Id. at 1850.
In contrast, Miramontez does not specifically request the
grand jury testimony of any witnesses who were called at trial. In
the only instance of alleged impropriety he mentions in his briefs
on appeal, Texas Department of Public Safety Officer Art Casarez
showed the photograph of a skull with a bullet hole in it to the
grand jury and suggested that Miramontez was responsible for
ordering the victim's death.5 Officer Casarez repeated his
5
According to Officer Casarez, the victim had provided
information to law enforcement authorities concerning
7
testimony at Miramontez's bond hearing, a transcript of which is
included in the record before us in this appeal. Miramontez does
not assert any inconsistency between Officer Casarez's testimony at
the bond hearing and that which he gave before the grand jury.
There is no need to disclose grand jury testimony if the same
witness gave the same testimony at a nonsecret bond hearing.
Finally, by pleading guilty Miramontez has waived all
nonjurisdictional defects in the grand jury proceedings. United
States v. Diaz, 733 F.2d 371, 376 (5th Cir. 1984) ("[W]e need only
point out that a valid guilty plea waives all nonjurisdictional
defects in the proceedings against a defendant"). Miramontez does
not contend here that his guilty plea was not voluntary or
informed.
Conclusion
Even under a liberal construction of Miramontez's pleadings,
the district court did not abuse its discretion in refusing to
disclose the grand jury transcripts. Accordingly, the district
court's order denying his request for disclosure of grand jury
materials is
AFFIRMED.
Miramontez's drug operation.
8