         Case: 15-12987   Date Filed: 02/23/2017   Page: 1 of 10


                                                    [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                            No. 15-12987
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 9:98-cr-08050-DMM-1

UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

versus

ELWOOD COOPER,

                                            Interested Party - Appellant,

BRIAN BETHEL,
a.k.a. Brian Rolle,
WENDELL SAUNDERS,

                                         Defendants.
                      ________________________

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


                          (February 23, 2017)
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Before MARCUS, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM:

        Elwood Cooper, proceeding pro se, is a federal prisoner serving a life

sentence. He appeals from the district court’s order in a separate, but related,

criminal case denying his motions seeking to unseal the transcript of certain grand

jury testimony. On appeal, he argues that he should have been given access to the

grand jury testimony because it would show that (1) his sentence should be

reduced under Amendment 782 to the Sentencing Guidelines and (2) he is entitled

to money that his co-conspirators forfeited to the government. Because the district

court did not abuse its discretion in denying Cooper’s motions, we affirm.

                          I.    FACTUAL BACKGROUND

        This case is one of several appeals by Cooper. Because Cooper argues that

the district court should have unsealed grand jury testimony so that he could use it

in two related cases, we give a brief history of Cooper’s criminal conviction and

his recent challenges to his life sentence and the forfeiture of his co-conspirators’

currency to the government.

   A.      Cooper’s Criminal Conviction

        Cooper was convicted in 1998 in federal court for his role in an ongoing

conspiracy to import cocaine into the United States. He is currently serving a life

sentence. In May 2015, Cooper filed a motion for a sentence reduction pursuant to


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18 U.S.C. § 3582(c)(2) based on Amendment 782 to the Sentencing Guidelines,

which reduced the base offense level for most drug offenses. The government

opposed the motion, arguing that based on the finding at Cooper’s sentencing

hearing about the quantity of drugs attributable to him, his sentence remained the

same under the new drug quantity tables set forth in Amendment 782. The district

court agreed and denied Cooper’s motion. Cooper has appealed, and his appeal is

currently pending before the Court in another case.

   B.      Bethel’s and Saunders’s Indictment

        In this case, Cooper’s co-conspirators, Brian Bethel and Wendell Saunders,

were indicted in 1998 for their role in the drug smuggling conspiracy. In 2001, the

district court dismissed the indictment against Bethel on the government’s motion.

In 2014, the district court dismissed the indictment against Saunders on the

government’s motion.

   C.      Bethel’s and Cartwright’s Conviction

        Bethel and Frank Cartwright were indicted in 2000 in a separate case related

to the same conspiracy. The indictments against Bethel and Cartwright sought

forfeiture of property and proceeds obtained as a result of the charged criminal

activity. Both Bethel and Cartwright pled guilty to the charges against them and

consented to the forfeiture of $2.4 million and $2.5 million, respectively, in U.S.

currency that the government had seized.


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      In 2001, after the district court entered judgment against Bethel and a

preliminary order of forfeiture, the government filed proof of publication of notice

regarding Bethel’s forfeited interest in the $2.4 million. In 2006, after the district

court entered judgment against Cartwright and a preliminary order of forfeiture,

the government filed proof of publication of notice regarding Cartwright’s

forfeited interest in the $2.5 million. No ancillary petitions challenging the

forfeitures were filed within 30 days of the publication of notice.

      Years later, Cooper filed petitions challenging the forfeiture. In the

petitions, Cooper argued that because he was the de facto leader of the drug

conspiracy, he had a superior legal interest in the currency as compared to Bethel

and Cartwright and that the seizure that gave rise to the forfeiture was illegal. The

government moved to dismiss the petitions, arguing, among other reasons, that

they were untimely. The district court denied Cooper’s petitions. Cooper

appealed.

      While the appeal of the denial of the forfeiture petitions was pending,

Cooper filed an emergency motion in the district court to unseal the transcripts

from Bethel’s and Cartwright’s sentencing hearings, claiming that the information

would assist him in his appeal. The district court denied the motion, and Cooper

appealed that decision as well. We consolidated these two appeals and affirmed

the district court’s orders denying the petition and refusing to unseal the sentencing


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hearing transcripts. See United States v. Cooper, Nos. 14-13683, 15-12049, 2017

WL 491148 (11th Cir. Feb. 7, 2017).

   D.       Procedural History

        In this case, in which Bethel and Saunders were indicted and the indictments

subsequently were dismissed, Cooper filed two emergency motions in 2015

seeking to unseal the transcript of grand jury testimony from DEA Agent Raymond

Cantena. In the first motion, Cooper claimed that Cantena’s grand jury testimony

was relevant to Cooper’s appeal of the denial of his forfeiture petitions. While the

first motion was pending, Cooper filed the second motion, asserting that Cantena’s

testimony would assist him in showing that the district court should resentence him

pursuant to Amendment 782 of the Sentencing Guidelines.1

        The government opposed Cooper’s motions but addressed only why Cooper

had no need for Cantena’s grand jury transcript with regard to the resentencing and

overlooked that Cooper also claimed he needed the testimony for the forfeiture

appeal. Before the time elapsed for Cooper to file a reply brief, the district court

entered an order summarily denying Cooper’s motions. This is Cooper’s appeal.




        1
      When Cooper filed the second motion, his motion seeking a resentencing pursuant to
Amendment 782 was pending before the district court.
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                          II.    STANDARD OF REVIEW

      We review for abuse of discretion a district court’s order governing the

disclosure of grand jury documents. United States v. Aisenberg, 358 F.3d 1327,

1338 (11th Cir. 2004).

                                   III.   ANALYSIS

      In this appeal, Cooper seeks access to a sealed transcript of testimony

presented to a grand jury. In general, grand jury materials are secret, even after the

grand jury has concluded its operations. See Douglas Oil Co. of Cal. v. Petrol

Stops Nw., 441 U.S. 211, 218 (1979) (“[T]he proper functioning of our grand jury

system depends upon the secrecy of grand jury proceedings.”). Federal Rule of

Criminal Procedure 6(e) codifies this secrecy principle and generally prohibits the

disclosure of grand jury material. See Aisenberg, 358 F.3d at 1346-47. To pierce

grand jury secrecy, the party seeking disclosure must demonstrate, among other

things, that “the need for disclosure outweighs the need for, and public interest in,

secrecy.” Id. at 1348. To carry this burden, “the party seeking disclosure of grand

jury material must show a compelling and particularized need for disclosure.” Id.

“To show a compelling and particularized need, the private party must show

circumstances had created certain difficulties peculiar to this case, which could be

alleviated by access to specific grand jury materials, without doing

disproportionate harm to the salutary purpose of secrecy embodied in the grand


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jury process.” Id. (internal quotation marks omitted). We must also keep in mind

that the district court “has substantial discretion in determining whether grand jury

materials should be released.” Id. (internal quotation marks omitted).

      The district court did not abuse its discretion in denying Cooper’s motions

because he failed to carry his burden of showing a particularized need for

disclosure of Cantena’s grand jury testimony. Cooper argues that he needed the

testimony to show that (1) he should have been resentenced under 18 U.S.C.

§ 3582(c)(2) and Amendment 782 to the Sentencing Guidelines and (2) he was

entitled to the forfeited currency. We reject both arguments.

      We cannot say that Cooper had a particularized need for the grand jury

materials to support his motion seeking a sentence reduction. A district court has

discretion under 18 U.S.C. § 3582(c)(2) “to reduce the term of imprisonment of an

already incarcerated defendant when that defendant was sentenced based on a

sentencing range that was subsequently lowered by the Sentencing Commission.”

United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). But “a sentencing

adjustment undertaken pursuant to [§] 3582(c)(2) does not constitute a de novo

resentencing.” Id. at 781.

      Here, Cooper sought a sentence reduction under § 3582(c)(2) based on

Amendment 782, which reduced the base offense level for most drug offenses. See

United States v. Maiello, 805 F.3d 992, 994 (11th Cir. 2015). Cooper argues that


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the grand jury testimony would show that the wrong quantity of drugs had been

attributed to him at his original sentencing and that he should have received a

lower sentence considering the correct quantity of drugs. But the question of

whether the correct amount of drugs was attributed to a defendant is not at issue in

a resentencing pursuant to § 3582(c)(2) and Amendment 782 because the

resentencing is limited solely to calculation of the defendant’s offense level under

the new drug quantity tables using the quantity of drugs previously attributed to the

defendant. Accordingly, we reject Cooper’s argument that he had a compelling

and particularized need for the grand jury testimony in connection with his

§ 3582(c)(2) motion for a sentence reduction based on Amendment 782.

       Cooper also failed to demonstrate a particularized need for the grand jury

material to support his appeal of the denial of his forfeiture petitions.2 He claims

that the grand jury testimony would show that he was entitled to the forfeited

property. But Cooper filed a motion in the district court seeking to unseal the

grand jury transcript after the district court dismissed and denied his petitions for

forfeiture. Normally an appellant cannot rely on evidence that he did not present to

the district court, see generally Ross v. Kemp, 785 F.2d 1467, 1474 (11th Cir.



       2
          Cooper argues that because the government failed to address this argument before the
district court, it abandoned any opposition, and we must grant him access to the sealed grand jury
testimony. Not so. We may affirm the district court for any reason supported by the record. See
United States v. Barsoum, 763 F.3d 1321, 1338 (11th Cir. 2014).
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1986), and there are no extenuating circumstances here that would justify a

departure from that rule.

       Furthermore, Cooper’s petitions were dismissed as untimely rather than on

the merits. Cooper has offered no explanation how anything in the transcript

would render his petitions timely. A third party is required to file a petition within

30 days of the final publication of notice or his receipt of direct written notice,

whichever is earlier. See 21 U.S.C. § 853(n)(2); United States v. Davenport, 668

F.3d 1316, 1320 (11th Cir. 2012) (“If a third party fails to file a petition within the

prescribed 30-day deadline, her interests are forfeited.”). Here, Cooper’s petitions

were too late because he waited years after final publication of notice. Cooper

cannot demonstrate a particularized need for the grand jury transcript, as he has

offered no explanation how the transcript could show that his petitions were

timely. 3




       3
          Cooper also argues that the district court erred because it denied his motions for access
to the grand jury transcripts before he had an opportunity to file his reply brief. Under the
district court’s local rules, Cooper had seven days to file a reply brief, see S.D. Fla. Local Rule
7.1(c), but the district court denied Cooper’s motions before the time period for his reply had
expired. Even assuming that the district court erred by ruling before receiving Cooper’s reply,
we see no reversible error because Cooper has not shown that the error affected his substantial
rights. See Fed. R. Crim. P. 52(a) (“Any error . . . that does not affect substantial rights must be
disregarded.”). We cannot say that the error affected Cooper’s substantial rights because he has
not shown that his reply brief would have changed the outcome.
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                                IV.    CONCLUSION

      The district court did not abuse its discretion by denying Cooper’s motions

because he failed to show a particularized need for the grand jury transcript.

Accordingly, we affirm.

      AFFIRMED.




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