United States v. Campbell, Douglas ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1315
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOUGLAS E. CAMPBELL,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 95-CR-63-C—Barbara B. Crabb, Chief Judge.
____________
SUBMITTED MARCH 11, 2003—DECIDED MARCH 27, 2003
____________
Before EASTERBROOK, ROVNER, and EVANS, Circuit
Judges.
PER CURIAM. Douglas Campbell is serving a term of
245 months’ imprisonment following his plea of guilty to
an indictment charging him with conspiracy to distrib-
ute methamphetamine. We affirmed his conviction almost
four years ago, see United States v. Campbell, No. 96-1676
(7th Cir. May 11, 1999) (unpublished order), and like-
wise affirmed the district court’s decision rejecting his
collateral attack under 28 U.S.C. §2255, see Campbell
v. United States, No. 00-3533 (7th Cir. Oct. 16, 2001)
(unpublished order). This has not dissuaded Campbell
from continuing to file motions, however. The one now
2 No. 02-1315
at issue seeks disclosure of testimony before, plus infor-
mation about, the grand jury that indicted him.
Campbell originally sought grand jury material while
his appeal from the denial of collateral relief was pend-
ing. He told the district judge that what he sought—
transcripts of all testimony and the attendance records
of the grand jurors—would (he believed) show not only
that the grand jury heard improper evidence but also
that his sentence under 21 U.S.C. §841(b) is invalid be-
cause the indictment charges a conspiracy in violation
of 21 U.S.C. §846. The district judge denied this motion,
observing that by pleading guilty Campbell waived any
opportunity to challenge the process of his indictment.
After we affirmed the district court’s order denying col-
lateral relief, Campbell renewed his motion, this time
contending that he could use grand jury materials in
seeking review by the Supreme Court. Again the judge
said no. The United States moved to dismiss Campbell’s
appeal from this decision, contending that the request
for grand jury materials amounts to a disguised, and
forbidden, second collateral attack. A motions panel re-
jected this argument, ruling that a prisoner may seek
grand jury materials even when they can not be used
to support collateral relief. See United States v. Campbell,
294 F.3d 824 (7th Cir. 2002). The panel concluded that
the request for grand jury materials initiated a civil case,
for which civil filing and docket fees must be paid. After
a remand so that the district court could assess and col-
lect these fees, Campbell’s appeal is back for decision on
the merits.
To obtain grand jury material, despite the presump-
tive secrecy imposed by Fed. R. Crim. P. 6(e), a litigant
must show that the information “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 [the] request is structured to cover
No. 02-1315 3
only material so needed.” Douglas Oil Co. v. Petrol Stops
Northwest, 441 U.S. 211, 222 (1979). Campbell does not
satisfy these requirements. He pleaded guilty, which
waives any challenge to the indictment or other matters
preceding the plea, see United States v. Broce, 488 U.S.
563 (1989), and at all events has used up the single col-
lateral attack to which a prisoner is entitled. There is
accordingly no other judicial proceeding in which the
grand jury materials could be used to avoid injustice.
What is more, Campbell’s observation that the indict-
ment mentioned §846 and not §841(b) not only comes too
late but also does not require anyone to peer behind
the surface of the charge. Finally, Campbell did not try
to tailor his request; a demand for all transcripts of all
testimony is a fishing expedition, which Rule 6(e) forbids.
The district court’s decision accordingly is
AFFIRMED.
EASTERBROOK, Circuit Judge, concurring. But for the
law of the case, I would vote to vacate the district
court’s decision and remand with instructions to dismiss
for want of jurisdiction. Campbell’s motions are exactly
what the prosecutor called them: poorly disguised suc-
cessive collateral attacks, designed to evade 28 U.S.C.
§§ 2244(b) and 2255 ¶8. The district court accordingly
lacked jurisdiction to entertain them. See Nuñez v. United
States, 96 F.3d 990 (7th Cir. 1996). The only way around
this would be to conclude that, despite the caption on the
pleadings and the request for relief in the criminal case,
Campbell really has initiated a stand-alone civil suit
whose sole objective is a copy of the grand jury mate-
4 No. 02-1315
rials. There are multiple problems with that characteriza-
tion. Campbell has made it pellucid that he thinks that
the information will facilitate a quest for freedom; he
does not want to conduct an academic study of how grand
juries work! Anyway, if this is a stand-alone case, what
is the source of subject-matter jurisdiction? Unless Rule
6(e), like the Freedom of Information Act, permits people
to seek federal documents for their own sake, 28 U.S.C.
§1331 will not serve. Yet no one thinks that Rule 6(e) is
a parallel to the FOIA; it is a rule of secrecy, not a com-
mand of disclosure. A demand for access to grand jury
materials is not an independent claim arising under fed-
eral law; the litigant must want some relief independent
of discovery. That’s one point of Douglas Oil. The only
relief Campbell wants—a shorter term in prison, if not
outright release—requires another collateral attack and
thus is outside the district court’s jurisdiction.
Our motions panel dealt with the jurisdictional problem
by stating flatly that Rule 6(e) is itself a fount of subject-
matter jurisdiction. It did not cite any authority for
that proposition, and there is none to be found. The rule
does not purport to create jurisdiction to conduct stand-
alone civil litigation; like the rest of the criminal rules, it
specifies procedures for use in criminal prosecutions. See
Fed. R. Crim. P. 1(a) (“These rules govern procedure in
all criminal proceedings” in federal court). One might as
well say that Civil Rules 26-37 supply subject-matter
jurisdiction over any suit in which the plaintiff wants
discovery, for these rules go well beyond Criminal Rule 6(e)
in providing for disclosure of information held by one’s
adversary. Yet all of these rules were promulgated by
the Supreme Court under the Rules Enabling Act, which
authorizes “general rules of practice and procedure”. 28
U.S.C. §2072(a). Nothing in the Act suggests that the
federal judiciary may grant itself subject-matter jurisdic-
tion to hear and decide cases under principles (such as
Rule 6) that likewise are of judicial creation.
No. 02-1315 5
Now it is true that Rule 6(e)(3)(E) (formerly Rule
6(e)(3)(C)) permits a district court to authorize disclosure
of grand jury material for use in other judicial proceed-
ings, subject to a long list of restrictions. When a person
wants to employ the grand jury material in other litigation,
then subject-matter jurisdiction for this flavor of third-
party discovery is supplemental to the jurisdiction to
resolve that other suit. Campbell cannot take advantage
of this principle, because there is no pending or impend-
ing litigation; his criminal conviction has been affirmed,
and his collateral attack is over. Nothing remains except
a free-standing request for transcripts, which lacks any
jurisdictional footing. Many decisions hold that there
must be some other proceeding to obtain disclosure un-
der Rule 6(e)(3)(E). See, e.g., United States v. Baggot, 463
U.S. 476 (1983); McDonnell v. United States, 4 F.3d 1227,
1247-48 (3d Cir. 1993); American Friends Service Committee
v. Webster, 720 F.2d 29, 71 (D.C. Cir. 1983); United States
v. Tager, 638 F.2d 167, 171 (10th Cir. 1980); Doe v.
Rosenberry, 255 F.2d 118 (2d Cir. 1958) (L. Hand, J.). See
also Charles Alan Wright & Arthur R. Miller, 1 Federal
Practice & Procedure §109 (1980). Our motions panel cited
Baggot, but apparently without recognizing its signifi-
cance: that if there is no other judicial proceeding in
which the grand jury material is urgently required, Rule
6(e)(3)(E) is inapplicable.
Once a district court enters a final judgment (which in
a criminal case means the sentence) it lacks jurisdiction
to continue hearing related issues, except to the extent
authorized by statute or rule. See, e.g., Carlisle v. United
States, 517 U.S. 416 (1996). Enforcing this norm in crim-
inal cases is vital, we held in Eaton v. United States, 178
F.3d 902 (7th Cir. 1999), in light of changes made by
the Sentencing Reform Act of 1984, which created a sys-
tem of determinate sentences. One fundamental adjust-
ment made by that statute is to curtail the district
6 No. 02-1315
judge’s power to revise a judgment after its entry. Under
Fed. R. Crim. P. 35, revision is proper only within 7 days,
unless the prosecutor files an appropriate motion or the
court of appeals remands. Other avenues of post-judg-
ment relief also have strict time limits, as Carlisle dis-
cusses. Two kinds of motions have longer limitations—
a Rule 33 motion for a new trial based on evidence
calling into question the defendant’s culpability, and
collateral attack under 28 U.S.C. §2255. Campbell has
had his collateral attack, and the time limit for motions
under Rule 33 has passed. The district judge therefore
lacks jurisdiction to continue hearing motions in the
criminal prosecution, and there is no civil case that
could supply supplemental jurisdiction. The next time
a prisoner makes a request such as Campbell’s, we should
take a fresh look at the jurisdictional issue.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-27-03