United States v. Jeffrey Smith , 449 F. App'x 791 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11734 NOVEMBER 2, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:00-cr-00199-FAM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 2, 2011)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
In United States v. Mosley, 103 F. App’x 665 (11th Cir. 2004), aff’d on
remand, 143 F. App’x 297 (11th Cir. 2005), we affirmed Jeffrey Smith’s
convictions with carjacking resulting in death and use of a firearm in connection
with that crime. On February 7, 2011, Smith, proceeding pro se, moved the district
court pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E)(ii) for disclosure
of all grand jury transcripts relevant to his indictment for those offenses. He
argued that such disclosure was necessary because of the lack of direct evidence
linking him to the carjacking or death. The court denied his motion, and he
appeals.
On appeal, Smith argues that the district court abused its discretion in
denying his motion to compel disclosure because he demonstrated a “particularized
need” for the grand jury transcripts. He asserts that the transcripts may show that a
Government witness or codefendant admitted to the murder that took place in the
carjacking.
We review a district court’s denial of a motion to disclose grand jury
materials for abuse of discretion. See United States v. Aisenberg, 358 F.3d 1327,
1338 (11th Cir. 2004) (reviewing the grant of disclosure of grand jury transcripts
for abuse of discretion). Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will be liberally construed. Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
2
Generally, the policy of the law is to keep grand jury proceedings secret.
Aisenberg, 358 F.3d at 1346-47. Rule 6(e) of the Federal Rules of Criminal
Procedure codifies the expectation of secrecy for grand jury proceedings, except in
limited circumstances. See Fed.R.Crim.P. 6(e). In pertinent part, a district court
has express authority, pursuant to Rule 6(e), to authorize the disclosure of grand
jury matters: (i) if such disclosure is “preliminarily to or in connection 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 matter that occurred before the
grand jury.” Fed.R.Crim.P. 6(e)(3)(E)(i), (ii).1 For a request to be “preliminary to”
a judicial proceeding, the Supreme Court has held that this exception:
contemplates only uses related fairly directly to some identifiable
litigation, pending or anticipated. Thus, it is not enough to show that
some litigation may emerge from the matter in which the material is to
be used, or even that litigation is factually likely to emerge. The focus
is on the actual use to be made of the material. If the primary purpose
of disclosure is not to assist in preparation or conduct of a judicial
proceeding, disclosure [ ] is not permitted.
United States v. Baggot, 463 U.S. 476, 480, 103 S.Ct. 3164, 3167, 77 L.E.2d 785(1983). For a request to be “in connection with” a judicial proceeding, a
proceeding must already be pending. Id. at 479, 103 S.Ct. at 3166.
1
Sub-sections (iii)-(v) of Rule 6(e)(3)(E) also provide authority for a district court to disclose
grand jury matters, but these sub-sections refer only to disclosure made at the request of the
government, and thus, are not pertinent here. See Fed.R.Crim.P. 6(e)(3)(E)(iii)-(v).
3
In addition, any party seeking grand jury matters under Rule 6(e) must show
that: (1) the material sought is needed to avoid possible injustice in another judicial
proceeding; (2) the need for disclosure is greater than the need for continued
secrecy; and (3) the request is structured to embrace only necessary material.
Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct.
1667, 1674, 60 L.E.2d 156 (1979); Aisenberg, 358 F.3d at 1348. This court has
held that general allegations are insufficient, and that a party seeking grand jury
matters must instead show a “particularized need” for the material. United States
v. Burke, 856 F.2d 1492, 1496 (11th Cir. 1988).
We have also recognized that “district courts have inherent power beyond
the literal wording of Rule 6(e)(3) to disclose grand jury material,” but noted that
such inherent authority is “exceedingly narrow and exists only in exceptional
circumstances.” Aisenberg, 358 F.3d at 1347.
Here, Smith’s request for disclosure was not made in connection with a
pending judicial proceeding, nor does Smith identify any actual use of the
transcripts to support litigation he may commence. Therefore, his motion does not
satisfy the first exception contained in Rule 6(e). See Fed.R.Crim.P. 6(e)(3)(E)(i);
Baggot, 463 U.S. at 479-80, 103 S.Ct. at 3166-67.
4
Additionally, even if we assume that Smith had met the basic requirements
of Rule 6(e)(3)(E), he has failed to show a “particularized need” for the requested
transcripts. See Burke, 856 F.2d at 1496. Here, he has provided nothing more than
unsubstantiated claims and bare allegations to support his request. Moreover, even
if the grand jury transcripts contained testimony of a witness or codefendant
admitting to a murder, this would not avoid “a possible injustice” as to Smith
because his convictions were for carjacking with intent to cause death and serious
bodily harm, and for using a firearm during a crime of violence, not for murder.
See Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1674.
AFFIRMED.
5