                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                      FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               December 14, 2007
                               No. 06-16073                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 04-60130-CR-JIC

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

MARVIN EWART,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                             (December 14, 2007)

Before BIRCH, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

     Marvin Ewart, proceeding pro se, appeals the district court’s denial of his

post-conviction motion for disclosure of all government witnesses’ grand jury
testimony in support of the indictment against him and his co-defendants.1 Ewart

filed his post-conviction motion pursuant to Federal Rule of Criminal Procedure

6(e)(3)(E)(i), which provides: “The court may authorize disclosure -- at a time, in a

manner, and subject to any other conditions that it directs -- of a grand-jury matter:

. . . preliminarily to or in connection with a judicial proceeding[.]” Fed. R. Crim.

P. 6(e)(3)(E)(i). On appeal, Ewart contends that the district court erred by denying

his motion, because he demonstrated the particularized need required for disclosure

of the requested testimony. We review the denial of a motion for disclosure of

grand jury materials under Rule 6(e) for abuse of discretion. See United States v.

Burke, 856 F.2d 1492, 1496 (11th Cir. 1988). After careful review, we affirm.2


       1
           We previously affirmed Ewart’s convictions for conspiracy to possess with intent to
distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), and 846,
and possession of a firearm in relation to a drug trafficking crime, in violation of 21 U.S.C. §
924(c)(1)(A). See United States v. Ewart, 164 Fed. Appx. 925 (11th Cir. 2006) (unpublished).
       2
           We are unpersuaded by the government’s suggestion that the motion should have been
dismissed, rather than denied. The case on which the government relies, United States v. Scott, 414
F.3d 815 (7th Cir. 2005), is distinguishable. In that case, when the defendant filed his motion for
disclosure of grand jury materials, pursuant to Rule 6(e)(3)(E), he had already filed a motion for
relief under § 2255, which had been denied. The Seventh Circuit held that the request for disclosure,
in which the defendant stated that he was “challenging the legality, constitutionality and authenticity
of the instant indictment,” constituted a second, or successive, collateral attack for which Scott did
not have permission to proceed. Id. at 817. Accordingly, the Seventh Circuit said the district court
should have dismissed the motion based on a lack of jurisdiction, rather than denying it on the
merits. By contrast, in the instant case, when he filed his Rule 6(e)(3)(E) motion, Ewart had not
sought relief on a collateral basis, under § 2255, or on any other basis for that matter. And in his
motion for disclosure, Ewart made no showing that the requested materials -- which involved no
newly discovered evidence and implicated no new rule of constitutional law -- could make available
to him permission to file a second or successive habeas petition. Accordingly, we find
Scott inapposite to our analysis.

                                                  2
      The general rule is that grand jury proceedings are to be kept secret. See

United States v. Aisenberg, 358 F.3d 1327, 1346 (11th Cir. 2004). Limited

exception to the general rule may apply when the grand jury matter is sought

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

P. 6(e)(3)(E)(i). In United States v. Baggot, 463 U.S. 476 (1983), the Supreme

Court held that Rule 6(e)(3)(E)(i):

      contemplates only uses related fairly directly to some identifiable
      litigation, pending or anticipated. Thus, it is not enough to show that
      some litigation may emerge from the matter in which the material is to
      be used, or even that litigation is factually likely to emerge. . . . If the
      primary purpose of disclosure is not to assist in preparation or conduct
      of a judicial proceeding, disclosure under (C)(i) is not permitted.

Baggot, 463 U.S. at 480 (emphasis added).          Moreover, a defendant’s effort to

obtain grand jury materials can only succeed with a showing of “particularized

need.” United States v. Procter & Gamble Co., 356 U.S. 677, 683 (1958). The

“particularized need” standard is not satisfied by bare, unsubstantiated allegations.

Cf. United States v. Cole, 755 F.2d 748, 759 (11th Cir. 1985) (unsubstantiated

allegations do not satisfy particularized need standard); United States v. Warren,

16 F.3d 247, 253 (8th Cir. 1994) (bare allegation that grand jury records are

necessary did not satisfy “particularized need” requirement).




                                           3
       Here, when he filed his motion for disclosure, Ewart’s criminal case had

concluded and no other judicial proceedings were pending.3                     Nor did Ewart

enumerate, in the motion, any “identifiable litigation, pending or otherwise,” to

which the requested materials “fairly directly” related. Id. Moreover, to the extent

Ewart suggested the materials would undermine the credibility of certain

government witnesses, his claims were unsubstantiated and nothing more than bare

allegations. On this record, we discern no abuse of the district court’s discretion in

its denial of the motion for disclosure of the grand jury materials.

       AFFIRMED.




       3
        After the district court denied the Rule 6(e)(3)(E) motion, Ewart filed a motion to vacate
his sentence, pursuant to 28 U.S.C. § 2255, on a wholly unrelated basis -- the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005).

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