United States v. Marvin Ewart , 259 F. App'x 235 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 14, 2007
No. 06-16073 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60130-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN EWART,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 14, 2007)
Before BIRCH, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Marvin Ewart, proceeding pro se, appeals the district court’s denial of his
post-conviction motion for disclosure of all government witnesses’ grand jury
testimony in support of the indictment against him and his co-defendants.1 Ewart
filed his post-conviction motion pursuant to Federal Rule of Criminal Procedure
6(e)(3)(E)(i), which provides: “The court may authorize disclosure -- at a time, in a
manner, and subject to any other conditions that it directs -- of a grand-jury matter:
. . . preliminarily to or in connection with a judicial proceeding[.]” Fed. R. Crim.
P. 6(e)(3)(E)(i). On appeal, Ewart contends that the district court erred by denying
his motion, because he demonstrated the particularized need required for disclosure
of the requested testimony. We review the denial of a motion for disclosure of
grand jury materials under Rule 6(e) for abuse of discretion. See United States v.
Burke, 856 F.2d 1492, 1496 (11th Cir. 1988). After careful review, we affirm.2
1
We previously affirmed Ewart’s convictions for conspiracy to possess with intent to
distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), and 846,
and possession of a firearm in relation to a drug trafficking crime, in violation of 21 U.S.C. §
924(c)(1)(A). See United States v. Ewart, 164 Fed. Appx. 925 (11th Cir. 2006) (unpublished).
2
We are unpersuaded by the government’s suggestion that the motion should have been
dismissed, rather than denied. The case on which the government relies, United States v. Scott, 414
F.3d 815 (7th Cir. 2005), is distinguishable. In that case, when the defendant filed his motion for
disclosure of grand jury materials, pursuant to Rule 6(e)(3)(E), he had already filed a motion for
relief under § 2255, which had been denied. The Seventh Circuit held that the request for disclosure,
in which the defendant stated that he was “challenging the legality, constitutionality and authenticity
of the instant indictment,” constituted a second, or successive, collateral attack for which Scott did
not have permission to proceed. Id. at 817. Accordingly, the Seventh Circuit said the district court
should have dismissed the motion based on a lack of jurisdiction, rather than denying it on the
merits. By contrast, in the instant case, when he filed his Rule 6(e)(3)(E) motion, Ewart had not
sought relief on a collateral basis, under § 2255, or on any other basis for that matter. And in his
motion for disclosure, Ewart made no showing that the requested materials -- which involved no
newly discovered evidence and implicated no new rule of constitutional law -- could make available
to him permission to file a second or successive habeas petition. Accordingly, we find
Scott inapposite to our analysis.
2
The general rule is that grand jury proceedings are to be kept secret. See
United States v. Aisenberg, 358 F.3d 1327, 1346 (11th Cir. 2004). Limited
exception to the general rule may apply when the grand jury matter is sought
“preliminarily to or in connection with a judicial proceeding,” under Fed. R. Crim.
P. 6(e)(3)(E)(i). In United States v. Baggot, 463 U.S. 476 (1983), the Supreme
Court held that Rule 6(e)(3)(E)(i):
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. . . . If the
primary purpose of disclosure is not to assist in preparation or conduct
of a judicial proceeding, disclosure under (C)(i) is not permitted.
Baggot, 463 U.S. at 480 (emphasis added). Moreover, a defendant’s effort to
obtain grand jury materials can only succeed with a showing of “particularized
need.” United States v. Procter & Gamble Co., 356 U.S. 677, 683 (1958). The
“particularized need” standard is not satisfied by bare, unsubstantiated allegations.
Cf. United States v. Cole, 755 F.2d 748, 759 (11th Cir. 1985) (unsubstantiated
allegations do not satisfy particularized need standard); United States v. Warren,
16 F.3d 247, 253 (8th Cir. 1994) (bare allegation that grand jury records are
necessary did not satisfy “particularized need” requirement).
3
Here, when he filed his motion for disclosure, Ewart’s criminal case had
concluded and no other judicial proceedings were pending.3 Nor did Ewart
enumerate, in the motion, any “identifiable litigation, pending or otherwise,” to
which the requested materials “fairly directly” related. Id. Moreover, to the extent
Ewart suggested the materials would undermine the credibility of certain
government witnesses, his claims were unsubstantiated and nothing more than bare
allegations. On this record, we discern no abuse of the district court’s discretion in
its denial of the motion for disclosure of the grand jury materials.
AFFIRMED.
3
After the district court denied the Rule 6(e)(3)(E) motion, Ewart filed a motion to vacate
his sentence, pursuant to 28 U.S.C. § 2255, on a wholly unrelated basis -- the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005).
4