United States v. Campbell, Douglas ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1315
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOUGLAS CAMPBELL,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 95-CR-0063-C-07—Barbara B. Crabb, Chief Judge.
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DECIDED JUNE 20, 2002
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Before BAUER, RIPPLE, and EVANS, Circuit Judges.
PER CURIAM. Although styled as a motion to dismiss this
appeal, the government requests that we summarily va-
cate the judgment of the district court and remand with
instructions to dismiss for lack of jurisdiction. As we ex-
plain in this opinion, we deny the government’s motion, but
remand to the district court for the limited purpose of as-
sessing an initial partial appellate filing fee for the appel-
lant.
In 1995, appellant Douglas Campbell pleaded guilty to
conspiracy to distribute methamphetamine in violation
of 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to a 245-
month prison term. His written plea agreement preserved
2 No. 02-1315
only his right to challenge his sentence on appeal, which he
did, but unsuccessfully. See United States v. Campbell, No.
96-1676, 1999 WL 313767 (7th Cir. May 11, 1999) (unpub-
lished). After we affirmed his sentence, Campbell moved
to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, arguing that it violated the rule announced in
Apprendi v. New Jersey, 530 U.S. 466 (2000). The district
court denied relief, and we affirmed. See Campbell v. United
States, No. 00-3533, 2001 WL 1246646 (7th Cir. Oct. 16,
2001) (unpublished), cert. denied, 122 S. Ct. 851 (2002).
While his appeal from the denial of his § 2255 motion
was pending in this court, Campbell moved the district
court for an order directing disclosure of matters occur-
ring before the grand jury that indicted him. The district
court denied the motion on the grounds that Campbell
failed to demonstrate sufficient need for the information
and had waived any possible challenges to his indictment
by pleading guilty. Three weeks later, after we affirmed
the denial of his § 2255 motion, Campbell moved the dis-
trict court to alter or amend its order denying disclosure
of grand jury information. Campbell stated that he needed
the grand jury information to demonstrate purported ille-
gal acts committed by the government before the grand
jury, and that he intended to use this information in sup-
port of a petition for a writ of certiorari in the Supreme
Court. The district court denied the motion, concluding
again that Campbell had long since waived any error in his
indictment.
Campbell filed a notice of appeal along with requests for
a certificate of appealability and to proceed on appeal in
forma pauperis. The district court denied the certificate of
appealability as unnecessary because Campbell was not ap-
pealing from an order denying a motion to vacate his con-
viction and sentence. The district court granted Campbell’s
application to proceed in forma pauperis, however. The
court stated that he had established his indigence in ear-
No. 02-1315 3
lier proceedings and was not subject to the restrictions on
in forma pauperis proceedings in civil actions and appeals
by prisoners enacted as part of the Prison Litigation Re-
form Act because “he is not appealing a judgment in a
civil action . . . but an order in a criminal proceeding.”
The government asserts that the district court lacked
jurisdiction to entertain Campbell’s motion for disclosure
of grand jury matters on two grounds. First, the govern-
ment argues that the motion was closely related to Camp-
bell’s § 2255 proceedings and thus should have been
construed as an unauthorized second or successive collat-
eral attack and dismissed. See 28 U.S.C. § 2244(c)(3); Nuñez
v. United States, 96 F.3d 990, 991 (7th Cir. 1996). Second,
the government argues that there existed no jurisdictional
basis for bringing such a motion in the district court. In the
government’s view, Campbell’s motion was simply a tardy
request for discovery under Federal Rule of Criminal Pro-
cedure 16 that Campbell waived by not making it before
trial. See Fed. R. Crim. P. 12(b)(4).
We disagree. First, Campbell’s motion did not request
any relief from his criminal conviction or sentence—his
motion requested only disclosure of what took place before
the grand jury that indicted him. It was not an attack on
the fact or duration of his confinement. See Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973) (“the essence of habeas
corpus is an attack by a person in custody upon the legality
of that custody, and that the traditional function of the writ
is to secure release from illegal custody”); cf. Johnson v.
United States, 196 F.3d 802, 805 (7th Cir. 1999) (filings in
the first collateral attack may be treated as “second or suc-
cessive” petitions when the first has been fully adjudicated,
a final judgment has been entered, and the prisoner ad-
vances new theories of relief). Although the government
is correct that Campbell may well intend to use the grand
jury disclosure in support of his collateral attacks, the re-
quest itself does not seek relief from his conviction or sen-
tence.
4 No. 02-1315
Second, there exists a jurisdictional basis for request-
ing disclosure of grand jury matters. Rule 6(e)(3)(C)(i)(I)
of the Federal Rules of Criminal Procedure provides that
matters occurring before the grand jury may be disclosed
“when so directed by a court preliminarily or in connection
with a judicial proceeding.” The rule allows motions for dis-
closure of grand jury matters after the conclusion of crim-
inal proceedings to be filed in the district court where the
grand jury convened—although disclosure is available only
where the material is related directly to identifiable liti-
gation, pending or anticipated, and the party requesting the
information demonstrates a compelling need for the mate-
rial.1 See United States v. Baggot, 463 U.S. 476, 480 n.4
(1983); Illinois v. Abbott & Associates, Inc., 460 U.S. 557,
564-67 & n.9 (1983); Douglas Oil Company of California
v. Petrol Stops Northwest, 441 U.S. 211, 222-25 (1979);
Dennis v. United States, 384 U.S. 855, 870 (1966); United
States v. Puglia, 8 F.3d 478, 480 (7th Cir. 1993). Orders de-
nying motions for disclosure under Rule 6(e) are appealable
as final decisions under 28 U.S.C. § 1291. Wisconsin v.
1
We emphasize “compelling” because disclosure under Rule 6(e)
is a rare exception to the rule that grand jury proceedings are
closed to the public. Disclosure is appropriate only where the par-
ty seeking disclosure demonstrates that his need for the informa-
tion outweighs the public interest in grand jury secrecy, and the
public interest in the sanctity of the grand jury is strong, indeed.
See Matter of Grand Jury Proceedings, Special September 1986,
942 F.2d 1195, 1198 (7th Cir. 1991) (“to overcome these interests,
the standard for determining when the traditional secrecy of the
grand jury may be broken is deliberately stringent: parties seek-
ing disclosure of grand jury transcripts must show that the ma-
terial they seek is needed to avoid a possible injustice in another
judicial proceeding, that the need for disclosure is greater than
the need for continued secrecy, and that their request is struc-
tured to cover only material so needed”); In re Sealed Case, 199
F.3d 522, 526 (D.C. Cir. 2000) (citing cases).
No. 02-1315 5
Schaffer, 565 F.2d 961, 965 n.1 (7th Cir. 1977); In re Grand
Jury 95-1, 118 F.3d 1433, 1436 (10th Cir. 1997); United
States v. Miramontez, 995 F.2d 56, 59 n.4 (5th Cir. 1993).
Although we deny the government’s motion, we observe
that the district court applied an incorrect standard in
granting Campbell permission to proceed without prepay-
ment of filing fees on appeal. The district court concluded
that this matter was a criminal proceeding, and as such
was not subject to the restrictions on in forma pauperis
proceedings by prisoners. See 28 U.S.C. § 1915(a)(2); Rob-
bins v. Switzer, 104 F.3d 895, 896 (7th Cir. 1997). We have
recognized, however, that proceedings such as this one are
not criminal, see United States v. Viereckl, No. 94-1960,
1995 WL 150583, at *1 (7th Cir. Apr. 6, 1995) (unpub-
lished), and one court of appeals has affirmatively held
in a published opinion that motions under Rule 6(e) are
civil, not criminal, and thus are subject to the procedural
rules governing civil cases. See Miramontez, 995 F.2d at 58;
see also United States v. Calleja, No. 01-7674, 2002 WL
24034, at *1 (4th Cir. Jan. 9, 2002) (holding same in unpub-
lished order).
Prisoners seeking to appeal judgments in civil actions
must pay the full amount of the appellate filing fees. 28
U.S.C. § 1915(b)(1); Newlin v. Helman, 123 F.3d 429, 432
(7th Cir. 1997). If a prisoner is granted permission to pro-
ceed in forma pauperis on appeal, the district court must
assess and, when possible, collect an initial partial filing fee
as well as monthly payments on the balance until the entire
fee is paid. 28 U.S.C. § 1915(b)(1), (2).
Accordingly,
IT IS ORDERED that the motion to vacate and remand with
instructions to dismiss is DENIED.
IT IS FURTHER ORDERED that this case is REMANDED to
the district court for the limited purpose of assessing an
6 No. 02-1315
initial partial filing fee for the appeal. The clerk of the
district court shall notify this court when the partial fee has
been collected.
IT IS FINALLY ORDERED that the clerk of this court shall
transmit the record on appeal to the clerk of the district
court, and we request that the clerk of the district court
retransmit the record on appeal to this court upon the
issuance of the district court’s order in response to our lim-
ited remand.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-20-02