IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10005
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
versus
JOHN PATRICK ACORD
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:95-CR-121-1-P
February 22, 1999
Before HIGGINBOTHAM, JONES, AND DENNIS, Circuit Judges.
PER CURIAM:*
Acord appeals the district court’s denial of his motion to
discover the transcripts of the grand jury whose indictment led to
his conviction on securities fraud charges. As a threshold matter,
we reject the government’s contention that the motion is moot. The
case the government principally relies on, Amar v. Whitley, 100
F.3d 22 (5th Cir. 1996), finds mootness only because a party
seeking monetary damages has already received those damages. The
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
government here claims mootness because this court has already
affirmed the denial of Acord’s habeas action. See United States v.
Acord, No. 97-10643 (5th Cir. Apr. 6 1998). The present discovery
action, however, is independent of the habeas action. Even if the
substantive law allowed the discovery of grand jury transcripts
only where a habeas petition remains pending, the proper
disposition would be to dismiss on the merits, not to find a
jurisdictional bar.
The basis for Acord’s request is Federal Rule of Criminal
Procedure 6(e)(3)(C)(i), which allows disclosure of matters
occurring before the grand jury “when so directed by a court
preliminarily to or in connection with a judicial proceeding.” The
word “preliminarily” indicates that such a request does not depend
on the pendency of such a judicial proceeding. Acord indicates
that he plans to use the grand jury evidence in filing a second
habeas petition. See 28 U.S.C. § 2244(B)(i) (allowing for a second
habeas petition where “the factual predicate for the claim could
not have been discovered previously through the exercise of due
diligence”).
To succeed on his discovery motion, Acord must demonstrate the
need for grand jury materials “with particularity.” See, e.g.,
United States v. Proctor & Gamble Co., 356 U.S. 677, 682 (1958).
The district court’s decision must balance competing interests, and
“secrecy will not be broken absent a compelling necessity for the
materials.” In re Special Grand Jury 89-2, 143 F.3d 565, 569 (10th
Cir. 1998). Acord’s petition identifies several inconsistencies
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between the indictment and a security prospectus that would have
been used as evidence against him and to which he claims he did not
have access prior to pleading guilty.
Acord does not, however, identify a legal theory that would
make his second habeas petition likely to succeed given the factual
predicate of inconsistencies between the indictment and the
prospectus. Moreover, this is not a situation in which alleged
grand jury violations “strike at the fundamental values of our
judicial system and our society as a whole,” and thus necessarily
make grand jury improprieties cognizable in habeas corpus. Rose v.
Mitchell, 443 U.S. 545, 556 (1979).
The decision to disclose grand jury proceedings is a matter
within the district court’s discretion. See, e.g., United States
v. Benton, 637 F.2d 1052, 1059 (5th Cir. Unit B 1981). While Acord
has done more than make bare allegations of a need for grand jury
materials, we do not find that his need for them is so clear as to
make the district court’s denial of his request an abuse of
discretion.
AFFIRMED.
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