United States v. Julian Omidi

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2018
• Docket: 16-50252
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50252

Plaintiff-Appellee, D.C. No. 2:13-cr-00739-SVW-1 v.

CINDY OMIDI, MEMORANDUM* and Defendant, ORDER

JULIAN OMIDI,

Intervenor-Appellant.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Submitted March 5, 2018** Pasadena, California

Before: GRABER and OWENS, Circuit Judges, and MAHAN,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable James C. Mahan, United States District Judge for the District of Nevada, sitting by designation. Julian Omidi appeals from the district court’s denial of his motion to

partially unseal documents uncovered during the prosecution of Cindy Omidi.

Appellant made this motion in his capacity as Intervenor at Cindy Omidi’s trial.

We affirm.

1. The district court did not err in denying Appellant’s motion to unseal

memoranda of government interviews that were taken in connection with a grand

jury investigation, as well as a hearing transcript and court order that referenced

the memoranda at length (collectively “documents”). These documents were

records “relating to grand-jury proceedings” that “must be kept under seal to the

extent and as long as necessary to prevent the unauthorized disclosure of a matter

occurring before a grand jury.” Fed. R. Crim. P. 6(e)(6); see also United States v.

Index Newspapers LLC, 766 F.3d 1072, 1085–86 (9th Cir. 2014); U.S. Indus., Inc.

v. U.S. Dist. Court, 345 F.2d 18, 20–21 (9th Cir. 1965).

These documents were not subject to any exception under Federal Rule of

Criminal Procedure 6(e)(3)(E). Appellant’s motion to unseal was not a “request of

the government,” Fed. R. Crim. P. 6(e)(3)(E)(iii)–(v), nor was it made by a

defendant seeking to dismiss an indictment, see Fed. R. Crim. P. 6(e)(3)(E)(ii).

We also decline to grant the motion under the exception for disclosure requests

made “preliminarily to or in connection with a judicial proceeding.” Fed. R. Crim.

P. 6(e)(3)(E)(i). Insofar as Appellant seeks to share the documents with Senators

2 Mike Lee and Charles Grassley in their alleged government misconduct

investigation, such an investigation does not constitute a “judicial proceeding.”

See id.

As to Appellant’s request to share the documents with potential amici, the

American Bar Association and California Attorneys for Criminal Justice, in In re

Grand Jury Investigation, 668 F. App’x 792 (9th Cir. 2016) (unpublished), his

request has been mooted by the conclusion of that case. See W. Coast Seafood

Processors Ass’n v. Nat. Res. Def. Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011)

(“An appeal is moot if there exists no present controversy as to which effective

relief can be granted.” (internal quotation marks omitted)). Appellant’s argument

that this issue is capable of repetition yet escaping review fails because there is no

“reasonable expectation” that the issue will repeat itself. In re Grand Jury

Proceedings, 863 F.2d 667, 669 (9th Cir. 1988). We do not ask how likely it is

that any controversy between the government and Appellant will arise again;

instead, we ask how likely it is that potential amici will request these documents

again. See W. Coast Seafood, 643 F.3d at 704–05 (evaluating whether the specific

issue of timeliness was likely to repeat itself, not the larger controversy between

the parties). Appellant has made no showing that potential amici will request the

documents in the future.

3 2. Appellant has not established a First Amendment right to unseal the

documents. He argues that the First Amendment right “to petition the Government

for a redress of grievances,” U.S. Const. amend I, entitles him to share the

documents with Senators Lee and Grassley, and that Bursey v. United States, 466

F.2d 1059 (9th Cir. 1972), “is the controlling case.” Bursey concerned the First

Amendment rights of a witness compelled to testify at a grand jury. Id. at 1081–

86. It is wholly irrelevant to the First Amendment concerns implicated by

Appellant’s request to share the documents with Senators Lee and Grassley.

Moreover, the Supreme Court does not recognize a First Amendment right

to unseal all documents pertaining to grand jury matters. Rather, it has developed

a two-step test that seeks to balance the competing goals of the First Amendment

with the secrecy needs inherent to grand jury proceedings. See Press-Enter. Co. v.

Superior Court, 478 U.S. 1, 8–9 (1986). Appellant has provided no reason or

authority to suggest that the First Amendment gives him an absolute right to share

these documents with senators.

3. We lack jurisdiction over the rest of Appellant’s claims that allege

government misconduct and grand jury abuse. In criminal proceedings, the final

judgment rule “normally requires a defendant to wait until the end of the trial to

obtain appellate review of a pretrial order.” Sell v. United States, 539 U.S. 166,

176 (2003); see also 28 U.S.C. § 1291. Appellant has not yet been indicted, let

4 alone tried. The final judgment rule precludes us from asserting jurisdiction over

these claims.

4. We deny all of Appellant’s pending motions.

AFFIRMED.