UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 92-5612

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EUSEBIO MIRAMONTEZ, JR.,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the

Western District of Texas

______________________________________________

(June 28, 1993)

Before GOLDBERG, GARWOOD and WIENER, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Eusebio Mira montez, Jr. (Miramontez),

proceeding pro se

, appeals from the district court's order denying

his request for disclosure of grand jury transcripts. Because the

district co urt did not abuse its discretion in determining that

Miramontez failed to show a particularized need for such

disclosure, we affirm.

Facts and Proceedings Below

In 1987, Miramontez pleaded guilty to one count of engaging in

a continuing criminal enterprise in violation of 21 U.S.C. § 848.1 F ED

. R. C RIM

. P. 6(e)(3)(C)(i) provides that "[d]isclosure

otherwise prohibited by this rule of matters occurring before the

grand jury may also be made SQ (i) when so directed by a court

preliminarily to or in connection with a judicial proceeding."

2 He was sentenced to a term of imprisonment of thirty years. In

1988 this Court dismissed his direct appeal. Miramontez then filed

two motions to correct or reduce his sentence, pursuant to F ED

. R.

C RIM

. P. 35, and two motions to vacate, set aside, or correct his

sentence, pursuant to 28 U.S.C. § 2255. The district court denied

all four motions. Miramontez appealed only the denial of his

second sectio n 2255 motion; in 1991, this Court affirmed that

denial.

At issue here is Miramontez's petition for disclosure of grand

jury transcripts, which he filed pro se on Ap ril 2, 1992. The

government re sponded on April 21, 1992. The district court,

construing the motion both as a request for disclosure under the

federal Freedom of Information Act (FOIA), 5 U.S.C. §§ 551, et

seq.

, and as a request under F ED

. R. C RIM

. P. 6(e), 1 denied the

motion in an order dated April 24, 1992.

On April 27, Miramontez served a reply to the government's

response to his motion for disclosure of grand jury transcripts; on

May 26, he filed a "Brief in support of Petitioner(s) [sic] Motion

to Set Aside `Order' of Dismissal," which was, in essence, a motion

for reconsideration pursu ant to F E D

. R. C IV

. P. 60(b), asking that

the district court reconsider its April 24 ruling. The district

court entered an order on June 3, 1992, denying all relief

requested in the two pleadings.2 Were we to conclude that this action is criminal, the appeal

would be untimely, and we would lack jurisdiction to consider it.

In criminal proceedings, motions for reconsideration, such as

Miramontez's motion to set aside the order of dismissal, "are

timely filed if made within the period allotted for the noticing

of an appeal." United States v. Cook , 670 F.2d 46, 48 (5th

Cir.), cert. denied , 102 S.Ct. 2255 (1982). Here, if we treat

this case as criminal, the motion for reconsideration is timely

only if filed within ten days of the district court's order

denying his petition for disclosure of grand jury materials.

Filed on May 26, the motion followed the district court's order

by thirty-two days. Because Miramontez's motion for

3 On June 12, Miramontez filed a notice of appeal, dated June 7,

1992.

Discussion

I. Jurisdiction

This Court may raise, sua sponte

, the issue of its own

jurisdiction. T ijerina v. Plentl

, 984 F.2d 148, 150 (5th Cir.

1993). There is a question as to whether Miramontez's notice of

appeal was timely. This turns on whether the action for disclosure

of the grand jury transcripts is civil, in which case Miramontez

had sixty days to appeal from the April 24 order of the district

court, pursuant to F ED

. R. A PP

. P. 4(a), as this is a case in which

the United States is a party, or whether it is a criminal action,

in which Miramontez had only ten days to file his notice of appeal

under F ED

. R. A PP

. P. 4(b).

The district court denied the motion for disclosure of the

grand jury transcripts on April 24, 1992. Miramontez filed his

notice of appeal on June 12, 1992, within sixty da ys of the

district court's April 24 ruling. Because we determine that

Miramontez's petition for grand j ury transcripts is civil in

nature, this appeal is timely under Rule 4(a). 2reconsideration was untimely, the district court lacked

jurisdiction to consider it. Id . The time allowed for appeal of

the April 24 order lapsed.

4 There are several factors supporting our conclusion that this

action is civil. When Miramontez filed his request for the grand

jury transcripts, his criminal conviction had long been final: he

had pleaded guilty, the district court had sentenced him, and this

Court had dismissed his direct appeal years previously. He had

filed two Rule 35 motions and two habeas proceedings, all of which

the district court had denied; we had affirmed the dismissal of the

last habea s petition the preceding year. Further, the district

court construed his petition, in part, as a request under the FOIA.

Although Miramontez claims on appeal that he did not intend his

petition as a FOIA request, the district court's interpret ation

emphasizes the civil aspect of t hese proceedings. In addition,

Miramontez's petition for disclosure of the grand jury transcripts

states that it is filed for the purpose of obtaining information to

support the filing of a petition for a writ of habeas corpus under

28 U.S.C. § 2241, a civil action. Finally, although he filed the

petition for disclosure in the same court and under the same docket

number as his earlier crimina l proceeding, this does not require

that his petition for grand jury disclosure be treated as a

criminal action. In fact, filing the petition in the same district

court was proper as tha t court supervised the grand jury's

proceedings. Douglas Oil Co. v. Petrol Stops Northwest , 99 S.Ct.

1667, 1676 (1979) (requests for disclosure of grand jury testimony

must, as a general rule, be directed to the court that supervised3 Even if Miramontez were asserting the FOIA as grounds for

disclosure, he would not prevail. The FOIA directs agencies of

the federal government to make certain information available to

the public. 5 U.S.C. §§ 552, et seq . Federal courts, however,

are expressly excluded from the definition of "agency" for

purposes of FOIA disclosure requirements. 5 U.S.C. § 551(1)(B).

"The cases which have considered the question [of whether FOIA

requires disclosure of grand jury materials], by one route or

another, have uniformly concluded that grand jury information

within the scope of [F ED

. R. C RIM

. P.] 6(e) is exempt from FOIA

disclosure." Fund for Constitutional Gov't v. Nat'l Archives and

Records Service , 656 F.2d 856, 868, n.28 (D.C. Cir. 1981).

4 Orders granting or denying disclosure of grand jury

materials for use in civil actions are appealable. 15B W RIGHT

, M ILLER

, & C OOPER

, F EDERAL P RACTICE & P ROCEDURE , § 3914.24, p.181 (1992).

5 the grand jury's proceedings, eve n when required for a civil

proceeding in another judicial district).

II. Denial of Request for Grand Jury Transcripts

In his motion for disclosure of grand jury transcripts,

Miramontez sought to obtain access to the transcripts of all grand

jury proceedings related to his criminal case. The district court

analyzed this motion both under the FOIA and under F ED

. R. C RIM

. P.

6(e). Miramontez now disavows any FOIA aspect to his request for

the grand jury materials. 3

A district court's denial of a motion for disclosure of grand

jury transcripts under Rule 6(e) is reviewed for an abuse of

discretion. 4 D ouglas Oil

, 99 S.Ct. at 1675; In re Grand Jury

Testimony , 832 F.2d 60, 62 (5th Cir. 1987).

The proper functioning of the grand jury system depends upon

the secrecy of the grand jury proceedings. Douglas Oil , 99 S.Ct.

at 1672. The burden is on the party seeking disclosure to show

that "a particularized need" exists for the materials that

outweighs the policy of secrecy. P ittsburgh Plate Glass Co. v.6

United States , 79 S.Ct. 1237, 1241 (1959).

In order to meet this burden, Miramontez must demonstrate that

(1) the material he seeks is needed to avoid a possible injustice

in another judicial proceeding, (2) the need for disclosure is

greater than the need for continued secrecy, and (3) his request is

structured to cover only material so needed. D ouglas Oil

, 99 S.Ct.

at 1674. This showing "must be made even when the grand jury whose

transcripts are sought has concluded its operations." I d

. The

district court found that Miramontez had made no effort to satisfy

any of these conditions and denied his request.

It is cle ar that Miramontez did not show a "particularized

need" under any of the three ele ments set forth in D ouglas Oil

.

Even construing his pleadings liberally, as the district court was

required to do because of his pro se status, Wesson v. Oglesby

, 910

F.2d 278, 281 (5th Cir. 1990), he has not furnished reason

sufficient to require disclosure of his grand jury pro ceedings.

His petition is wholly general and does not request any specific

po rtion of the proceedings for disclosure. Miramontez claims a

general "right" to disclosure of the transcripts. The mere

contention that the party seeking transcripts has a "right" to the

transcripts, without a proper showing of need, will not suffice to

justify disclosure. P ittsburgh Plate Glass Co.

, 79 S.Ct. at 1241.

In his pleadings before the district court, as well as in his

briefs on appeal, Miramontez describes errors or defects in grand

jury proc eedings, such as perjury, misleading hearsay evidence,

bias, prosecutorial misconduct, and racial discrimination, and

cites cases in which such matters have provided grounds for5 According to Officer Casarez, the victim had provided

information to law enforcement authorities concerning

7 disclosure of the proceedings. He does not, however, assert that

a ny of these errors or defects occurred in his own grand jury

proceedings, n or does he hint at any evidence in the grand jury

materials that might reveal the presence of such an error or

defect.

In support of his claim on appeal that the district court

abused its discretion in refusing to grant him access to the grand

jury materials, Miramontez relies on Dennis v. United States , 86

S.Ct. 1840 (1966). This case, however, is not applicable here.

There, the Supreme Court held that it was an abuse of discretion

for a district court to refuse to disclose, in a criminal trial,

the grand jury testimony of witnesses who also testified at trial.

The Court noted th at the traditional reasons justifying

nondisclosure were not significant in those circumstances. D ennis

,

86 S.Ct. at 1850, n.18. The defendants in that case had

demonstrated a "particularized need" for the disclosur e and had

shown a likelihood that the witnesses ' testimony at trial was

inconsistent with their earlier grand jury testimony. I d

. at 1850.

I n contrast, Miramontez does not specif ically request the

grand jury testimony of any witnesses who were called at trial. In

the only instance of alleged impropriety he mentions in his briefs

on appeal, Texas Department of Public Safety Officer Art Casarez

showed the photog raph of a skull with a bullet hole in it to the

grand jury and suggested that Miramontez was responsi ble for

ordering the victim's death. 5 Officer Casarez repeated hisMiramontez's drug operation.

8

testimony at Miramontez's bond hearing, a transcript of w hich is

included in the record before us in this appeal. Miramontez does

not assert any inconsistency between Officer Casarez's testimony at

the bond hearing and that which he gave before the grand jury.

There is no need to disclose grand jury testimony if the same

witness gave the same testimony at a nonsecret bond hearing.

Finally, by pleading guilty Miramontez has waived all

nonjurisdictional defects in the grand jury proceedin gs. U nited

States v. Diaz

, 733 F.2d 371, 376 (5th Cir. 1984) ("[W]e need only

point out that a vali d guilty plea waives all nonjurisdictional

defects in the proceedings against a defendant"). Miramontez does

not contend here that his guilty plea was not voluntary or

informed.

Conclusion

Even under a liberal construction of Miramontez's pleadings,

the district court did not abuse its discretion in refusing to

disclose the grand jury tran scripts. Accordingly, the district

court's order denying his request for disclosure of grand jury

materials is

AFFIRMED.