United States v. Douglas E. Campbell

324 F.3d 497, 2003 U.S. App. LEXIS 5834, 2003 WL 1561943

Opinions

PER CURIAM.

Douglas Campbell is serving a term of 245 months’ imprisonment following his plea of guilty to an indictment charging him with conspiracy to distribute methamphetamine. We affirmed his conviction almost four years ago, see United States v. Campbell, 1999 WL 313767, No. 96-1676 (7th Cir. May 11, 1999) (unpublished order), and likewise affirmed the district court’s decision rejecting his collateral attack under 28 U.S.C. § 2255, see Campbell v. United States, 2001 WL 1246646, No. 00-3533 (7th Cir. Oct. 16, 2001) (unpublished order). This has not dissuaded Campbell from continuing to file motions, however. The one now at issue seeks disclosure of testimony before, plus information about, the grand jury that indicted him.

Campbell originally sought grand jury material while his appeal from the denial of collateral relief was pending. He told the district judge that what he sought— transcripts of all testimony and the attendance records of the grand jurors — would (he believed) show not only that the grand jury heard improper evidence but also that his sentence under 21 U.S.C. § 841(b) is invalid because the indictment charges a conspiracy in violation of 21 U.S.C. § 846. The district judge denied this motion, observing that by pleading guilty Campbell waived any opportunity to challenge the process of his indictment. After we affirmed the district court’s order denying collateral relief, Campbell renewed his motion, this time contending that he could use grand jury materials in seeking review by the Supreme Court. Again the judge said no. The United States moved to dismiss Campbell’s appeal from this decision, contending that the request for grand jury materials amounts to a disguised, and forbidden, second collateral attack. A motions panel rejected this argument, ruling that a prisoner may seek grand jury materials even when they can not be used to support collateral relief. See United States v. Campbell, 294 F.3d 824 (7th Cir. 2002). The panel concluded that the request for grand jury materials initiated a civil case, for which civil filing and docket fees must be paid. After a remand so that the district court could assess and collect these fees, Campbell’s appeal is back for decision on the merits.

To obtain grand jury material, despite the presumptive secrecy imposed by Fed. R.Crim.P. 6(e), a litigant must show that the information “is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that [the] request is structured to cover only material so needed.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). Campbell does not satisfy these requirements. He pleaded guilty, which waives any challenge to the indictment or other matters preceding the plea, see United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), and at all events has used up the single collateral attack to which a prisoner is entitled. There is accordingly no other judicial proceeding in which the grand jury materials could be used to avoid injustice. What is more, Campbell’s observation that the indictment mentioned § 846 and not § 841(b) not only comes too late but also does not require anyone to peer behind the surface of the charge. Finally, Campbell did not try to tailor his request; a demand for all transcripts of all testimony is a fishing expedition, which Rule 6(e) forbids. The district court’s decision accordingly is

AFFIRMED.