[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 19, 2011
No. 10-14168 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 8:05-cr-00044-SCB-AEP-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TONY L. FORD,
a.k.a. BoBo,
a.k.a. BO,
a.k.a. Big Head,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 19, 2011)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Tony Ford, a federal prisoner proceeding pro se, appeals the denials of his
motion to compel disclosure of grand jury proceedings and his motion for
reconsideration. No reversible error has been shown; we affirm.
In his motion to compel, Ford sought disclosure of grand jury testimony
related to his second superseding indictment. Ford argued that he needed the
records -- in pertinent part, the testimony of Detective Richard Mills, Jr., from the
third grand jury proceeding -- to aid him in pursuing a 28 U.S.C. § 2255 motion to
vacate and sought disclosure “to prevent a fundamental miscarriage of justice.”
On appeal, Ford argues that the government violated the Jencks Act by failing to
provide him with the testimony and also argues that Fed.R.Crim.P. 6(e) authorized
disclosure of the testimony.
A district court’s grant or denial of a motion to disclose grand jury materials
is reviewed for abuse of discretion. United States v Aisenberg, 358 F.3d 1327,
1338 (11th Cir. 2004). In addition, we construe liberally pro se pleadings. Miller
v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008). After review, we conclude that
Ford has shown no basis for disclosure of the testimony.
The Jencks Act requires the government to disclose certain statements of its
trial witnesses -- including statements by the witness to a grand jury -- following
their direct examination. See 18 U.S.C. § 3500(b), (e)(3). But disclosure under
the Act must occur during trial to allow defendant to obtain information to use in
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cross-examining the government’s witness. The remedy for the government’s
failure to comply is for the testimony of the witness to be stricken from the record.
See 18 U.S.C. § 3500(d). Because Ford’s convictions are final, these remedies are
unavailable; and the Jencks Act provides Ford with no post-conviction basis to
seek disclosure of the disputed testimony.
Rule 6(e) -- under which Ford also seeks relief -- codifies the expectation of
secrecy of grand jury proceedings, except in limited circumstances. See
Fed.R.Crim.P. 6(e)(3). And here, Ford’s motion to compel does not fit within the
relevant exception to Rule 6(e)(3). Ford did not seek disclosure “preliminarily to
or in connection with a judicial proceeding.” Fed.R.Crim.P. 6(e)(3)(E)(i). For a
request to be “in connection with” a judicial proceeding, a proceeding must
already be pending. United States v. Baggot, 103 S.Ct. 3164, 3166-67 (1983).
Ford’s criminal conviction already is final, and he has not yet filed a section 2255
motion to vacate. And Ford failed to identify any actual use of the grand jury
transcripts to support anticipated litigation: not preliminary to a judicial
proceeding. See Baggot, 103 S.Ct. at 3167.
Because Ford’s motion did not meet the relevant exception of Rule 6(e)(3),
the district court had inherent authority to consider the merits of his request only if
there were “exceptional circumstances.” See Aisenberg, 358 F.3d at 1347. But the
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record shows that the government met its obligation pursuant to the Jencks Act on
the third day of trial when it provided Ford’s lawyer with copies of Mills’s
testimony from the third grand jury proceedings. So, given that Ford earlier
received the disputed transcripts from the government, his request did not
constitute exceptional circumstances to trigger the district court’s inherent
authority to disclose the testimony. And the court abused no discretion in denying
Ford’s motion to compel.
The district court also abused no discretion in denying Ford’s motion for
reconsideration because the motion repeated arguments raised in his motion to
compel. He identified no factual or legal error underlying the district court’s
denial of his motion. See Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir.
2010) (explaining that a motion for reconsideration cannot be used to relitigate old
matters).
AFFIRMED.
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