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United States v. Calabrese

September 8, 2010


The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge


Petitioner, Anthony Calabrese, has filed a motion ("Motion") seeking the records and transcripts of proceedings related to the grand jury that indicted him, purportedly for "academic and research studies." For the following reasons, the Court denies the Motion for want of subject-matter jurisdiction.


To obtain grand-jury materials, one must make a strong showing of particularized need 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.'" United States v. Campbell (Campbell II), 324 F.3d 497, 498-99 (7th Cir. 2003) (quoting Douglas Oil Co. v. Petrol Stops N.W., 441 U.S. 211, 222, 99 S.Ct. 1667 (1979)); United States v. Sells Eng'g, Inc., 463 U.S. 418, 443, 103 S.Ct. 3133, 3148 (1983). In deciding whether a party has made such a showing, "the district court has 'substantial discretion.'" Hernly v. United States, 832 F.2d 980, 984 (7th Cir. 1987) (quoting Douglas Oil, 441 U.S. at 222-23, 99 S.Ct. at 1674-75).


A grand jury returned a second superseding indictment against Petitioner Calabrese and others on September 14, 2006, charging Petitioner with three counts of robbery in violation of 18 U.S.C. § 1951(b)(1) and three counts of brandishing a firearm in furtherance of those robberies in violation of 18 U.S.C. § 924(c)(1)(A)(ii). (R. 56, Second Superseding Indictment; R. 230, Renumbered Indictment.) After a trial, a jury found Petitioner guilty on all counts, and he was sentenced on July 18, 2008. (R. 233, 2/8/08 Minute Order; R. 293, Judgment.)

On appeal, the Seventh Circuit affirmed his conviction and sentence. See United States v. Calabrese, 572 F.3d 362 (7th Cir. 2009). Petitioner has filed a writ of certiorari with the Supreme Court and has not sought to collaterally attack his conviction. In his one-page Motion, Petitioner seeks "for the purpose of academic and research studies" the "records/transcripts of the SPECIAL FEBRUARY 2005-2 GRAND JURY which issued the indictment." (R. 363, Mot. at 1.)


While neither party raises the issue, the Court must address whether it has subject-matter jurisdiction over this matter. See CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 447 (7th Cir. 2010). "A post-judgment motion needs a source of authority for the judge to act, and Fed. R. Crim. P. 6(e), which authorizes motions to inspect grand-jury materials in criminal cases, does not purport to authorize judges to act after the litigation has concluded." United States v. Scott, 414 F.3d 815, 816 (7th Cir. 2005) (emphasis in original and noting that "once a criminal case ends in a sentence the judge's power lapses"). Petitioner Calabrese does not seek to use the requested materials in relation to his criminal case, a collateral attack, or any other litigation, and his request does not fall within any of the authorized-disclosure provisions of Federal Rule of Criminal Procedure 6(e)(3)(E). As such, the Court lacks subject-matter jurisdiction to entertain the Motion. See Scott, 414 F.3d at 816; Campbell II, 324 F.3d at 499-500 (Easterbrook, J., concurring) (in addressing a request for grand-jury materials, asking: "if this is a stand-alone 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."). Even if the Court did have jurisdiction, however, the Court would deny Petitioner's request because he has not satisfied any of the requirements for obtaining grand-jury materials.*fn1

I. The Grand Jury

"The grand jury has always occupied a high place as an instrument of justice in our system of criminal law-so much so that it is enshrined in the Constitution." Sells Eng'g, 463 U.S. at 423, 103 S.Ct. at 3137. "Its establishment in the Constitution 'as the sole method for preferring charges in serious criminal cases' indeed 'shows the high place it holds'" in the criminal-justice system. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1241 (1959) (quoting Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408 (1956)). "Although the English forerunner of the modern grand jury served primarily as a prosecutorial and investigative arm of the Crown and was designed to enhance the government's authority, by the 17th century the grand jury had developed an equally important function-to safeguard citizens against an overreaching Crown and unfounded accusations." Butterworth v. Smith, 494 U.S. 624, 629, 110 S.Ct. 1376, 1380 (1990).

Ever since the Founding Fathers provided for it in the Constitution, "the American grand jury, like that of England, 'has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.'" Pittsburgh Plate Glass, 360 U.S. at 400, 79 S.Ct. at 1241 (quoting Costello, 350 U.S. at 362, 76 S.Ct. at 408). Ultimately, the grand jury "serves the 'dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.'" Sells Eng'g, 463 U.S. at 423, 103 S.Ct. at 3137 (quoting Brazenburg v. Hayes, 408 U.S. 665, 686-87, 92 S.Ct. 2646, 2659 (1972)).

II. Grand-Jury Secrecy

The Supreme Court "consistently ha[s] recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." Douglas Oil, 441 U.S. at 218, 99 S.Ct. at 1672. Indeed, the strong policy of grand-jury secrecy is "older than our Nation itself." Pittsburgh Plate Glass, 360 U.S. at 399, 79 S.Ct. at 1241. "Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye." Douglas Oil, 441 U.S. at 219 n.9, 99 S.Ct. at ...

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