United States v. Douglas E. Campbell

EASTERBROOK, Circuit Judge,

concurring.

But for the law of the case, I would vote to vacate the district court’s decision and remand with instructions to dismiss for want of jurisdiction. Campbell’s motions are exactly what the prosecutor called them: poorly disguised successive collateral attacks, designed to evade 28 U.S.C. §§ 2244(b) and 2255 ¶ 8. The district court accordingly lacked jurisdiction to entertain them. See Nuñez v. United States, 96 F.3d 990 (7th Cir.1996). The only way around this would be to conclude that, despite the caption on the pleadings and the request for relief in the criminal case, Campbell really has initiated a stand-alone civil suit whose sole objective is a copy of the grand jury materials. There are multiple problems with that characterization. Campbell has made it pellucid that he thinks that the information will facilitate a quest for freedom; he does not want to conduct an academic study of how grand juries work! Anyway, if this is a standalone case, what is the source of subject-matter jurisdiction? Unless Rule 6(e), like the Freedom of Information Act, permits people to seek federal documents for their own sake, 28 U.S.C. § 1331 will not serve. Yet no one thinks that Rule 6(e) is a parallel to the foia; it is a rule of secrecy, not a command of disclosure. A demand for access to grand jury materials is not an independent claim arising under federal law; the litigant must want some relief independent of discovery. That’s one point of Douglas Oil. The only relief Campbell wants — a shorter term in prison, if not outright release — requires another collateral attack and thus is outside the district court’s jurisdiction.

Our motions panel dealt with the jurisdictional problem by stating flatly that Rule 6(e) is itself a fount of subject-matter jurisdiction. It did not cite any authority for that proposition, and there is none to be found. The rule does not purport to create jurisdiction to conduct stand-alone civil litigation; like the rest of the criminal rules, it specifies procedures for use in criminal prosecutions. See Fed.R.Crim.P. 1(a) (“These rules govern procedure in all criminal proceedings” in federal court). One might as well say that Civil Rules 26-37 supply subject-matter jurisdiction over any suit in which the plaintiff wants discovery, for these rules go well beyond Criminal Rule 6(e) in providing for disclosure of information held by one’s adversary. Yet all of these rules were promulgated by the Supreme Court under the *500Rules Enabling Act, which authorizes “general rules of practice and procedure”. 28 U.S.C. § 2072(a). Nothing in the Act suggests that the federal judiciary may grant itself subject-matter jurisdiction to hear and decide cases under principles (such as Rule 6) that likewise are of judicial creation.

Now it is true that Rule 6(e)(3)(E) (formerly Rule 6(e)(3)(C)) permits a district court to authorize disclosure of grand jury material for use in other judicial proceedings, subject to a long list of restrictions. When a person wants to employ the grand jury material in other litigation, then subject-matter jurisdiction for this flavor of third-party discovery is supplemental to the jurisdiction to resolve that other suit. Campbell cannot take advantage of this principle, because there is no pending or impending litigation; his criminal conviction has been affirmed, and his collateral attack is over. Nothing remains except a free-standing request for transcripts, which lacks any jurisdictional footing. Many decisions hold that there must be some other proceeding to obtain disclosure under Rule 6(e)(3)(E). See, e.g., United States v. Baggot, 463 U.S. 476, 103 S.Ct. 3164, 77 L.Ed.2d 785 (1983); McDonnell v. United States, 4 F.3d 1227, 1247-48 (3d Cir.1993); American Friends Service Committee v. Webster, 720 F.2d 29, 71 (D.C.Cir.1983); United States v. Tager, 638 F.2d 167, 171 (10th Cir.1980); Doe v. Rosenberry, 255 F.2d 118 (2d Cir.1958) (L.Hand, J.). See also Charles Alan Wright & Arthur R. Miller, 1 Federal Practice & Procedure § 109 (1980). Our motions panel cited Baggot, but apparently without recognizing its significance: that if there is no other judicial proceeding in which the grand jury material is urgently required, Rule 6(e)(3)(E) is inapplicable.

Once a district court enters a final judgment (which in a criminal case means the sentence) it lacks jurisdiction to continue hearing related issues, except to the extent authorized by statute or rule. See, e.g., Carlisle v. United States, 517 U.S. 416, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996). Enforcing this norm in criminal cases is vital, we held in Eaton v. United States, 178 F.3d 902 (7th Cir.1999), in light of changes made by the Sentencing Reform Act of 1984, which created a system of determinate sentences. One fundamental adjustment made by that statute is to curtail the district judge’s power to revise a judgment after its entry. Under Fed.R.Crim.P. 35, revision is proper only within 7 days, unless the prosecutor files an appropriate motion or the court of appeals remands. Other avenues of post-judgment relief also have strict time limits, as Carlisle discusses. Two kinds of motions have longer limitations — a Rule 33 motion for a new trial based on evidence calling into question the defendant’s culpability, and collateral attack under 28 U.S.C. § 2255. Campbell has had his collateral attack, and the time limit for motions under Rule 33 has passed. The district judge therefore lacks jurisdiction to continue hearing motions in the criminal prosecution, and there is no civil case that could supply supplemental jurisdiction. The next time a prisoner makes a request such as Campbell’s, we should take a fresh look at the jurisdictional issue.