United States v. Moreno

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 15, 2022
• Docket: 21-6096
• Status: Unpublished

Opinion

Appellate Case: 21-6096 Document: 010110657127 Date Filed: 03/15/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 15, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-6096 (D.C. No. 5:12-CR-00297-R-13) BANI MORENO, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, BALDOCK, and McHUGH, Circuit Judges. _________________________________

Defendant Bani Moreno appeals the district court’s dismissal of his motion to

compel production of certain trial exhibits and plea agreement supplements from his

2013 criminal trial. The narrow issue before us is whether the district court properly

concluded it lacked jurisdiction to rule on a motion to compel production filed in a

long-since closed criminal case unaccompanied by any motion to reopen the

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-6096 Document: 010110657127 Date Filed: 03/15/2022 Page: 2

proceedings—like a motion for new trial or a 28 U.S.C. § 2255 motion. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

“Federal courts are courts of limited jurisdiction, possessing only that power

authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013)

(cleaned up). As the movant, Defendant bears the burden of establishing jurisdiction.

See United States v. Garcia-Herrera, 894 F.3d 1219, 1220–21 (10th Cir. 2018).

Defendant fails to meet that burden. Absent a motion sufficient to reopen jurisdiction,

such as the one provided under 28 U.S.C. § 2255, any jurisdiction in Defendant’s

criminal case ended long ago. Because the following circumstances show the district

court’s criminal jurisdiction terminated years ago, we need not decide exactly when

that jurisdiction ceased: (1) the district court’s final judgment of conviction was

entered on September 23, 2013; (2) Defendant’s direct appeal was denied on April 15,

2015, United States v. Moreno, 607 F. App’x 775 (10th Cir. 2015) (unpublished)

(Moreno I), and his petition for post-conviction relief under 28 U.S.C. § 2255 was

denied on July 21, 2016, United States v. Moreno, 655 F. App’x 708 (10th Cir. 2016)

(unpublished) (Moreno II); (3) we reviewed and affirmed Defendant’s sentencing

reduction proceedings on October 24, 2019, United States v. Moreno, 793 F. App’x

705 (10th Cir. 2019) (unpublished) (Moreno III); and (4) none of Defendant’s

subsequent motions were sufficient to reopen jurisdiction in his criminal case, United

States v. Moreno, 781 F. App’x 803 (10th Cir. 2019) (unpublished) (Moreno IV).

A motion to compel production is not a motion independently sufficient to

reopen a district court’s criminal jurisdiction. See Garcia-Herrera, 894 F.3d at 1220.

2 Appellate Case: 21-6096 Document: 010110657127 Date Filed: 03/15/2022 Page: 3

Defendant nevertheless argues his motion still has an independent jurisdictional basis.

He contends there is civil jurisdiction in this case because “there is a federal common

law right to access to federal judicial records which can be enforced by means of an

ordinary suit under 28 U.S.C. § 1331 (the federal-question jurisdiction).” Smith v. U.S.

Dist. Court Officers, 203 F.3d 440, 441 (7th Cir. 2000) (Posner, C.J.). Whatever the

merit of Defendant’s argument, he must pursue it in a civil suit. Our prior precedent

prevents us from asserting civil jurisdiction over a motion filed in a closed criminal

case. In Garcia-Herrera, the defendant similarly sought documents through a motion

to compel in a since-closed criminal case. We held the district court lacked jurisdiction

under 28 U.S.C. § 1331—the civil federal-question jurisdiction statute—because we

could “not see how this statute would give a district court jurisdiction over a motion to

compel filed in a criminal case.” Garcia-Herrera, 894 F.3d at 1220. Because “[w]e

are bound by the precedent of prior panels absent en banc reconsideration or a

superseding contrary decision by the Supreme Court,” we cannot reach a different

result here. In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam).

Nothing in this order and judgment, however, should be construed to prejudge

or prohibit Defendant from asserting his federal common law right to access federal

judicial records in a proper civil action.1 Our analysis is necessarily limited to the

discrete issue presented by this appeal. Defendant cannot circumvent the filing of a

civil case by filing a motion to compel production in his stale criminal case. We hope

1 We cannot predict the success of such an action or any other alternative actions like a Freedom of Information Act request. 3 Appellate Case: 21-6096 Document: 010110657127 Date Filed: 03/15/2022 Page: 4

the Government and the Defendant can quickly and painlessly resolve their disputes.

For the reasons stated herein, we GRANT Defendant’s motion for leave to proceed in

forma pauperis and AFFIRM the district court’s judgment.

Entered for the Court

Bobby R. Baldock Circuit Judge