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John Newton v. United States ( 2018 )


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  •      Case: 17-11195      Document: 00514576827         Page: 1    Date Filed: 07/30/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-11195
Fifth Circuit
FILED
July 30, 2018
JOHN PATRICK NEWTON,                                                        Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA,
Defendant-Appellee
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CV-2340
Before DENNIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
John Patrick Newton, federal prisoner # 56067-112, moves for leave to
proceed in forma pauperis (IFP) to appeal the district court’s denial of his
motion to unseal the grand jury transcripts relating to his convictions of
conspiring to distribute marijuana, maintaining a drug-involved premises,
possession of marijuana with intent to distribute, and money laundering
conspiracy. His IFP motion is a challenge to the district court’s certification
that his appeal is not taken in good faith. See Baugh v. Taylor,
    117 F.3d 197
    ,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-11195     Document: 00514576827     Page: 2   Date Filed: 07/30/2018
No. 17-11195
202 (5th Cir. 1997). We review that certification for an abuse of discretion,
Carson v. Polley,
    689 F.2d 562
    , 586 (5th Cir. 1982), inquiring “whether the
appeal involves legal points arguable on their merits,” Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
The “indispensable secrecy of grand jury proceedings must not be broken
except where there is a compelling necessity.”         United States v. Procter
& Gamble Co.,
    356 U.S. 677
    , 682 (1958) (internal quotation marks and citation
omitted); see also FED. R. CRIM. P. 6(e)(3)(E). A party seeking disclosure of
grand jury records must therefore demonstrate that “a particularized need
exists for the [materials] which outweighs the policy of secrecy.” Pittsburgh
Plate Glass Co. v. United States,
    360 U.S. 395
    , 400 (1959) (internal quotation
marks omitted). To make such a showing, the party requesting the materials
must establish 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.” United States v. Miramontez,
    995 F.2d 56
    , 59 (5th
Cir. 1993). We review the denial of a motion for disclosure of grand jury
transcripts for abuse of discretion.
    Id. Newton, who 
    has already pursued a direct appeal and a 28 U.S.C. § 2255
motion, fails to make the necessary showing. He has not demonstrated the
required connection to a judicial proceeding. See FED. R. CRIM. P. 6(e)(3)(E)(i),
(ii); In re McDermott & Co.,
    622 F.2d 166
    , 171-72 (5th Cir. 1980). Further, he
fails to show a particularized need for the grand jury transcripts in light of the
arguments raised in his brief. See Pittsburgh Plate Glass
    Co., 360 U.S. at 400
    .
His general assertions of improprieties in his criminal prosecution, and his
contention that an evidentiary hearing is needed, are reflective of an
impermissible “fishing expedition to see if he can find something in the grand
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No. 17-11195
jury [records] that might support further relief[.]” United States v. Carvajal,
    989 F.2d 170
    , 170 (5th Cir. 1993).
Because Newton fails to present a nonfrivolous legal argument that the
district court abused its discretion by denying his motion to unseal the grand
jury transcripts, he fails to show any error in the court’s certification that his
appeal is not taken in good faith. See
    Carson, 689 F.2d at 586
    . Accordingly,
the motion to proceed IFP on appeal is DENIED. As the merits of Newton’s
appeal “are so intertwined with the certification decision as to constitute the
same issue,” the appeal is DISMISSED AS FRIVOLOUS.
    Baugh, 117 F.3d at 202 
    & n.24; 5TH CIR. R. 42.2.
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