Michael D. Beiter, Jr. v. United States

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12282
Non-Argument Calendar
____________________
MICHAEL D. BEITER, JR.,
Defendant-Appellant,
versus
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:09-cr-60202-JIC-1
____________________
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2 Opinion of the Court 22-12282
Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges.
PER CURIAM:
Michael David Beiter, Jr., a federal prisoner proceeding pro
se, appeals the District Court’s order denying his post-judgment
motion for disclosure of grand jury materials in his underlying
criminal case. The government, in turn, has moved for summary
affirmance and to stay the briefing schedule.
I.
A grand jury originally charged Beiter with multiple felonies
in 2009. In a second superseding indictment, it charged him with
one count of corruptly endeavoring to impede the due administra-
tion of the Internal Revenue laws, 26 U.S.C. §§ 2, 7212(a); three
counts of willful attempt to evade income taxes, 26 U.S.C. §§ 2,
7201; and six counts of security instrument fraud, 18 U.S.C. §§ 2,
514. A jury found him guilty of all 10 counts. The District Court
for the Southern District of Florida sentenced him to a total of 120
months’ imprisonment, followed by 5 years’ supervised release, in
2011, later entering an amended judgment with a modification re-
lated to restitution.
Beiter appealed, but we affirmed shortly thereafter. United
States v. Beiter, 448 F. App’x 900 (11th Cir. 2011) (unpublished).
Following a series of events not relevant to the current ap-
peal, in March 2022, Beiter moved, pro se, to receive “a copy of any
and all grand jury transcripts for each and every grand jury hearing”
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22-12282 Opinion of the Court 3
against him, including all the hearings leading to the second super-
seding indictment. 1 He asserted that the government committed
perjury before the grand jury to secure a fraudulent indictment
against him.
The District Court denied the motion, finding that Beiter
had not shown a particularized need for the grand jury materials as
he had not shown how they would help grant him relief in any
forthcoming 28 U.S.C. § 2255 motion. The District Court further
found that a petit jury finding him guilty meant that there was
probable cause to believe he was guilty as charged, and any error
in the grand jury proceeding connected with the charging decision
was harmless beyond a reasonable doubt.
Beiter did not immediately appeal; he instead moved for re-
consideration, largely raising arguments he had raised previously.
The District Court denied the motion, and Beiter appealed. The
government, in turn, moved for summary affirmance.
II.
1 Beiter’s motion for disclosure of grand jury materials was made under Fed.
R. Crim. P. 6(e)(3)(E)(i) and (ii). According to Rule 6(e)(3)(E), “[t]he court may
authorize disclosure—at a time, in a manner, and subject to any other condi-
tions that it directs—of a grand-jury matter: (i) preliminarily to or in connec-
tion with a judicial proceeding; [or] (ii) at the request of a defendant who
shows that a ground may exist to dismiss the indictment because of a mater
that occurred before the grand jury.”
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On appeal, Beiter, who is still pro se, argues that the District
Court abused its discretion in denying his motion for grand jury
transcripts based on the government committing perjury to
achieve an unconstitutional indictment for what would otherwise
be legal conduct. Beiter asserts that he needs the grand jury mate-
rials to prepare a future 28 U.S.C. § 2255 motion that will show his
actual innocence. Beiter does not expressly refer to his motion for
reconsideration in his brief.
Rather than responding, the government moves for sum-
mary affirmance and to stay the briefing schedule. It argues that
Beiter had not identified a pending judicial proceeding or any ac-
tual use of grand jury material to support anticipated litigation. It
asserts that his request for all grand jury transcripts does not
demonstrate a particularized need, instead it represented “an unau-
thorized fishing expedition” based on broad speculation. It con-
tends that Beiter’s conviction by a petit jury meant that any error
in the grand jury proceeding connected with the charging decision
was harmless beyond a reasonable doubt. The government also
argued that the District Court correctly denied Beiter’s motion for
reconsideration.
Summary disposition is appropriate, in part, where “the po-
sition of one of the parties is clearly right as a matter of law so that
there can be no substantial question as to the outcome of the
case . . . .” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162
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22-12282 Opinion of the Court 5
(5th Cir. 1969). 2 A motion for summary affirmance or summary
reversal shall postpone the due date for the filing of any remaining
brief until we rule on such motion. 11th Cir. R. 31-1(c).
We review a district court’s decision denying disclosure of
grand jury transcripts for an abuse of discretion, keeping in mind
that the district court has substantial discretion in determining
whether grand jury materials should be released. United States v.
Aisenberg, 358 F.3d 1327, 1338, 1349 (11th Cir. 2004). A district
court abuses its discretion if it applies an incorrect legal standard,
follows improper procedures in making the determination, or
makes findings that are clearly erroneous. United States v. Barring-
ton, 648 F.3d 1178, 1194 (11th Cir. 2011).
Pro se pleadings are liberally construed. Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998). We “may af-
firm for any reason supported by the record, even if not relied upon
by the district court.” United States v. Al-Arian, 514 F.3d 1184, 1189
(11th Cir. 2008) (quotation marks omitted). A party abandons a
claim when he fails to raise it plainly and prominently in his initial
brief. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014).
It has been a long-standing policy of the law that grand jury
proceedings should be kept secret and only disclosed in limited
2 The decisions of the United States Court of Appeals for the Fifth Circuit
handed down prior to September 30, 1981, are binding precedent in the Elev-
enth Circuit. Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981).
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circumstances. Aisenberg, 358 F.3d at 1346. However, a district
court may authorize disclosure of a grand jury matter preliminarily
to or in connection with a judicial proceeding. Fed. R. Crim. P.
6(e)(3)(E)(i). This exception only applies when a party seeking ma-
terial shows a particularized need for that material. See Douglas
Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222–24, 99 S. Ct.
1667, 1674–75 (1979). A party meets that standard when he shows
that he needs the material he seeks to avoid a possible injustice in
another judicial proceeding, that the need for disclosure is greater
than the need for continued secrecy, and that his request is struc-
tured to cover only material so needed. Id. at 222, 99 S. Ct. at 1674.
We have held that a party meets a particular need standard
when he shows that circumstances created certain difficulties pe-
culiar to his case which could be alleviated by access to specific
grand jury material, without doing disproportionate harm to the
statutory purpose embodied in the grand jury process. Aisenberg,
358 F.3d at 1348–49. Unsubstantiated allegations do not satisfy the
particularized need standard, however. United States v. Cole,
755 F.2d 748, 759 (11th Cir. 1985). Additionally, a blanket request
for all grand jury materials cannot be described as the kind of par-
ticularized request required for the production of otherwise secret
information. Aisenberg, 358 F.3d at 1349. The breadth of a request
for all materials makes it virtually impossible for a defendant to
demonstrate that each of the hundreds of sought-after grand jury
items is likely to be exculpatory as he suggests. United Kingdom v.
United States, 238 F.3d 1312, 1321 (11th Cir. 2001).
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Any error in a grand jury proceeding is harmless beyond a
reasonable doubt when a petit jury enters a guilty verdict, as the
guilty verdict means that there was probable cause to believe that
the defendant was guilty, and that the defendant was in fact guilty
as charged beyond a reasonable doubt. United States v. Mechanik,
475 U.S. 66, 70, 106 S. Ct. 938, 942 (1986).
Though the rules of criminal procedure do not explicitly
provide for motions for reconsideration in criminal cases, both this
Court and the Supreme Court have permitted such motions. See
United States v. Phillips, 597 F.3d 1190, 1199 (11th Cir. 2010) (col-
lecting cases). However, a motion for reconsideration cannot be
used “to relitigate old matters, raise argument or present evidence
that could have been raised prior to the entry of judgment.” Mi-
chael Linet, Inc. v. Vill. of Wellington, 408 F.3d 757, 763 (11th Cir.
2005).
Here, we grant the government’s motion, as the District
Court did not abuse its discretion by denying Beiter’s post-judg-
ment motion for grand jury transcripts. Beiter’s request for grand
jury transcripts is for “a copy of any and all grand jury transcripts
for each and every grand jury hearing” against him. Although he
asserted a need for the documents based on allegations of perjury
by the government, his request was fundamentally a blanket re-
quest for the production of otherwise secret information. Such a
request does not demonstrate a particularized need. Aisenberg,
358 F.3d at 1349.
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8 Opinion of the Court 22-12282
Additionally, the breadth of Beiter’s request for “any and all”
grand jury materials made it virtually impossible for all the items
he requested to be exculpatory. United Kingdom, 238 F.3d at 1321.
He did not structure his request for the entire grand jury record to
demonstrate why he needed those particular documents, instead
arguing that he needed the entire record to isolate instances where
he claimed there was perjury. See Douglas Oil Co. of Cal., 441 U.S.
at 222, 99 S. Ct. at 1674. Additionally, Beiter argues that he needs
the material to correct an injustice in a future § 2255 proceeding,
but he did not show how his demand for the entire grand jury pro-
ceeding would not disproportionately harm the purpose of the stat-
utory secrecy of the grand jury proceedings. Aisenberg at 1348–49.
Additionally, to the extent Beiter argues that he needs these
documents to show that he was indicted improperly, since he was
convicted by a petit jury, any such errors with the indictment,
should they exist, are considered harmless error. Mechanik,
475 U.S. at 70, 106 S. Ct. at 942.
As for his motion for reconsideration, Beiter does not explic-
itly refer to it in his initial brief, so any issue in that respect is aban-
doned. Sapuppo, 739 F.3d at 681. However, even if we liberally
construe his arguments to include his motion for reconsideration,
he argues broadly the same issues in his motion for reconsideration
as he does in the original motion. Tannenbaum, 148 F.3d at 1263.
Thus, the District Court still correctly denied the motion, because
he used the motion for reconsideration to relitigate old matters.
Michael Linet, Inc., 408 F.3d at 763.
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22-12282 Opinion of the Court 9
Accordingly, because the government’s position is clearly
correct as a matter of law, we GRANT the government’s motion
for summary affirmance and DENY its motion to stay the briefing
schedule as moot per 11th Cir. R. 31-1(c). Groendyke Transp., Inc.,
406 F.2d at 1162.