United States v. Julian Omidi ( 2018 )

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 3 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 16-50252
Plaintiff-Appellee, D.C. No.
2:13-cr-00739-SVW-1
v. Central District of California,
Los Angeles
CINDY OMIDI,
ORDER
Defendant,
JULIAN OMIDI,
Intervenor-Appellant.
Before: GRABER and OWENS, Circuit Judges, and MAHAN,* District Judge.
The memorandum disposition filed on March 23, 2018 is hereby amended.
The amended memorandum disposition will be filed concurrently with this order.
The panel has voted to deny the petition for panel rehearing. Judges Graber
and Owens voted to deny the petition for rehearing en banc, and Judge Mahan so
recommends.
The full court has been advised of the suggestion for rehearing en banc, and
no judge has requested a vote on whether to rehear the matter en banc. Fed. R.
App. P. 35.
*
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
The petition for panel rehearing and rehearing en banc is DENIED.
No further petitions for panel rehearing or petitions for rehearing en banc
will be entertained.
2
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 3 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50252
Plaintiff-Appellee, D.C. No.
2:13-cr-00739-SVW-1
v.
CINDY OMIDI, ORDER and
AMENDED MEMORANDUM*
Defendant,
JULIAN OMIDI,
Intervenor-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted March 5, 2018**
Pasadena, California
Before: GRABER and OWENS, Circuit Judges, and MAHAN,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
Julian Omidi appeals from the district court’s denial of his motion to
partially unseal documents uncovered during the prosecution of Cindy Omidi.
Appellant made this motion in his capacity as Intervenor at Cindy Omidi’s trial.
We affirm.
1. The district court did not err in denying Appellant’s motion to unseal
memoranda of government interviews that were taken in connection with a grand
jury investigation, as well as a hearing transcript and court order that referenced
the memoranda at length (collectively “documents”). These documents were
records “relating to grand-jury proceedings” that “must be kept under seal to the
extent and as long as necessary to prevent the unauthorized disclosure of a matter
occurring before a grand jury.” Fed. R. Crim. P. 6(e)(6); see also United States v.
Index Newspapers LLC, 766 F.3d 1072, 1085–86 (9th Cir. 2014); U.S. Indus., Inc.
v. U.S. Dist. Court, 345 F.2d 18, 20–21 (9th Cir. 1965).
These documents were not subject to any exception under Federal Rule of
Criminal Procedure 6(e)(3)(E). Appellant’s motion to unseal was not a “request of
the government,” Fed. R. Crim. P. 6(e)(3)(E)(iii)–(v), nor was it made by a
defendant seeking to dismiss an indictment, see Fed. R. Crim. P. 6(e)(3)(E)(ii).
We also decline to grant the motion under the exception for disclosure requests
made “preliminarily to or in connection with a judicial proceeding.” Fed. R. Crim.
P. 6(e)(3)(E)(i). Insofar as Appellant seeks to share the documents with Senators
2
Mike Lee and Charles Grassley in their alleged government misconduct
investigation, such an investigation does not constitute a “judicial proceeding.”
See id.As to Appellant’s request to share the documents with potential amici, the
American Bar Association and California Attorneys for Criminal Justice, in In re
Grand Jury Investigation, 668 F. App’x 792 (9th Cir. 2016) (unpublished), his
request has been mooted by the conclusion of that case. See W. Coast Seafood
Processors Ass’n v. Nat. Res. Def. Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011)
(“An appeal is moot if there exists no present controversy as to which effective
relief can be granted.” (internal quotation marks omitted)). Appellant’s argument
that this issue is capable of repetition yet escaping review fails because there is no
“reasonable expectation” that the issue will repeat itself. In re Grand Jury
Proceedings, 863 F.2d 667, 669 (9th Cir. 1988). We do not ask how likely it is
that any controversy between the government and Appellant will arise again;
instead, we ask how likely it is that potential amici will request these documents
again. See W. Coast Seafood, 643 F.3d at 704–05 (evaluating whether the specific
issue of timeliness was likely to repeat itself, not the larger controversy between
the parties). Appellant has made no showing that potential amici will request the
documents in the future.
3
2. Appellant has not established a First Amendment right to unseal the
documents. He argues that the First Amendment right “to petition the Government
for a redress of grievances,” U.S. Const. amend I, entitles him to share the
documents with Senators Lee and Grassley, and that Bursey v. United States, 466
F.2d 1059 (9th Cir. 1972), “is the controlling case.” Bursey concerned the First
Amendment rights of a witness compelled to testify at a grand jury. Id. at 1081–
86. It is wholly irrelevant to the First Amendment concerns implicated by
Appellant’s request to share the documents with Senators Lee and Grassley.
Moreover, the Supreme Court does not recognize a First Amendment right
to unseal all documents pertaining to grand jury matters. Rather, it has developed
a two-step test that seeks to balance the competing goals of the First Amendment
with the secrecy needs inherent to grand jury proceedings. See Press-Enter. Co. v.
Superior Court, 478 U.S. 1, 8–9 (1986). Appellant has provided no reason or
authority to suggest that the First Amendment gives him an absolute right to share
these documents with senators.
3. We lack jurisdiction over the rest of Appellant’s claims that allege
government misconduct and grand jury abuse. In criminal proceedings, the final
judgment rule “normally requires a defendant to wait until the end of the trial to
obtain appellate review of a pretrial order.” Sell v. United States, 539 U.S. 166,
4
176 (2003); see also 28 U.S.C. § 1291. Appellant has not yet been tried. The final
judgment rule precludes us from asserting jurisdiction over these claims.
4. We deny all of Appellant’s pending motions.
AFFIRMED.
5