     Case: 14-10496      Document: 00512774431         Page: 1    Date Filed: 09/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 14-10496                                FILED
                                  Summary Calendar                      September 18, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE JUAN MONTELONGO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CR-45


Before DeMOSS, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Jose Juan Montelongo, federal prisoner # 43986-177, was convicted by a
jury in May 2012 of conspiracy and distribution and possession with intent to
distribute a controlled substance. His conviction was affirmed on direct appeal
in September 2013. In March 2014, Montelongo moved pursuant to 28 U.S.C.
§§ 1867 and 1868 to inspect grand and petit jury selection records. The district
court denied the motion, and Montelongo now appeals.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-10496

      According to Montelongo, § 1867(f) and § 1868 afford him the right to
inspect the jury selection records, and the district court thus erred in denying
his motion. He contends that he must inspect those records to determine
whether he can find support for a potential claim that trial counsel rendered
ineffective assistance in failing to move to dismiss his indictment because the
grand jury was biased or prejudiced. According to Montelongo, Mexicans were
not fairly represented in his jury pool.
      The court affirms the district court’s denial of Montelongo’s motion under
§ 1867(f) because it was filed almost six months after Montelongo’s conviction
was affirmed on direct appeal. See United States v. Hawkins, 566 F.2d 1006,
1013–14 (5th Cir. 1978). The relief Montelongo seeks is not appropriately
brought in a posttrial motion. See id. at 1013-14 & n.13. Moreover, § 1867 will
not serve “as a ‘fishing expedition’ . . . to uncover possible grounds for
additional claims.’” United States v. Bearden, 659 F.2d 590, 597 (5th Cir.
1981).
      The court also affirms the district court’s denial of Montelongo’s motion
under § 1868. Montelongo moved the court for copies of jury records and
papers. See R. 314 (stating that Montelongo “[sought] to inspect a copy of the
master jury selection wheel and records”). The district court explained that
while defendant had a right to inspect jury records and papers under § 1868,
the statute “includes no provision for copying those materials.” Thus the court
held that “[u]nless defendant is able physically to appear at the place where
the records and papers are maintained in order to inspect them, section 1868
affords him no relief.” The district court’s order was correct because § 1868
merely requires a court clerk to make jury records and papers available to the
public and does not impose a duty on the court, a court clerk, or any other
public official to copy and distribute such documents. See 28 U.S.C. § 1868; cf.



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                                  No. 14-10496

id. § 1867(f) (providing that parties filing specified motion “shall be allowed to
inspect, reproduce, and copy [jury] records or papers”).
      In his motion for reconsideration, Montelongo asked the court under
§ 1868 to permit a family member to inspect the jury records and papers or to
pay for copies. The court denied Montelongo’s motion without specifically
addressing this request. The court did not err in denying the motion for
reconsideration because Montelongo’s representatives, as members of the
“public,” do not need a court order to inspect jury records and papers so long as
they do so “for the purpose of determining the validity of the selection of any
jury.” 28 U.S.C. § 1868.
      In the event a court clerk denies a request by Montelongo’s family
member to inspect jury records and papers for the purpose specified in § 1868,
this opinion does not prevent that family member from petitioning the district
court to inspect the records under § 1868. See United States v. Robinson, 243
F. Supp. 2d 868, 872 & n. 3 (C.D. Ill. 2003).
      AFFIRMED.




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