United States v. Gregory Poor , 488 F. App'x 183 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1283
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Gregory Poor
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: September 17, 2012
Filed: September 28, 2012
[Unpublished]
____________
Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Gregory Poor appeals the district court's1 order denying his motion to produce
grand jury transcripts. Poor contends the district court erred in denying his request
without first holding an evidentiary hearing. We affirm.
On March 10, 2000, Poor pleaded guilty to Count I of an indictment charging
him with conspiring to violate the Federal Food, Drug, and Cosmetic Act (FFDCA)
in violation of 18 U.S.C. § 371. Poor admitted to misbranding and adulterating a
substance known as Gamma Hydroxy Butyrate (GHB). The district court sentenced
him to four months in prison to be followed by three years of supervised release.
Poor appealed his conviction and sentence, and both were affirmed. See United
States v. Poor, 230 F.3d 1365 (8th Cir. 2000) (unpublished table disposition).
Over eleven years later, after having discharged his term of imprisonment and
having completed his term of supervised release, Poor filed a motion to produce the
transcripts from the grand jury proceedings which led to his indictment. Poor
claimed the substance he possessed was an unregulated substance known as gamma-
Butyrolactone (GBL), a precursor to GHB. Poor alleged the grand jury transcripts
will show the substance he had was GBL, and that three persons who testified before
the grand jury were intimidated into making false statements.
The district court denied the motion, observing that the three affidavits Poor
filed in support of his motion did not state Poor was involved with GBL rather than
GHB.2 In addition, the district court noted Poor had not objected to his presentence
report's references to GHB, pleaded guilty to a conspiracy involving GHB, and
testified under oath that he was involved with GHB. The district court concluded
1
The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
2
The three affidavits were purportedly dated and signed in May 2000, shortly
after Poor pleaded guilty and prior to the date he was sentenced.
-2-
Poor failed to make a showing of a "particularized need" for the grand jury transcripts
which would outweigh the need to protect the secrecy of the grand jury proceedings.
United States v. Broyles, 37 F.3d 1314, 1318 (8th Cir. 1994); see also United States
v. Warren, 16 F.3d 247, 253 (8th Cir. 1994) (indicating "a bare allegation that the
records are necessary to determine if there may be a defect in the grand jury process
does not satisfy the 'particularized need' requirement").
On appeal, the government contends Poor waived the issue of producing his
grand jury transcripts by not raising it in his direct appeal, and by not seeking relief
in a timely manner under 28 U.S.C. § 2255. See, e.g., United States v. Kress, 58 F.3d
370, 373 (8th Cir. 1995) ("Where a party could have raised an issue in a prior appeal
but did not, a court later hearing the same case need not consider the matter."). The
government argues in the alternative that the district court did not abuse its discretion
in denying Poor's request without holding an evidentiary hearing because Poor failed
to show a particularized need for the grand jury transcripts. See In re Grand Jury
Subpoenas Duces Tecum, 904 F.2d 466, 468 (8th Cir. 1990) ("The decision to
disclose grand jury material is left to the sound discretion of the district court and will
not be reversed in the absence of an abuse of discretion.").
We agree Poor waived this claim by not raising it in his direct appeal. We
therefore affirm the district court.
______________________________
-3-