       DLD-106                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2255
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                    JAMES MURPHY,
                             a/k/a Jimmy Murphy, a/k/a Black

                                            James Murphy,
                                                    Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                           (D.C. Crim. No. 1-08-cr-00433-001)
                     District Judge: Honorable William W. Caldwell
                      ____________________________________

               Submitted for a Decision on the Issuance of a Certificate
                 of Appealability and for Possible Summary Action
                 Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  January 14, 2016
      Before: CHAGARES, GREENAWAY, JR. and SLOVITER, Circuit Judges

                              (Opinion filed: April 11, 2016)
                                       _________

                                        OPINION*
                                        _________


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             1
PER CURIAM

       James Murphy appeals from the order of the District Court denying his motion for

the disclosure of grand jury material. We will affirm.

                                              I.

       Murphy is a federal prisoner serving a sentence of 360 months of imprisonment

for drug trafficking crimes. See United States v. Murphy, 460 F. App’x 122 (3d Cir.

2012). This appeal arises from the latest in his series of attempts to obtain grand jury

material. After Murphy was convicted, he filed a motion seeking the disclosure of certain

grand jury material, including “all of the ministerial grand jury material” relating to his

indictment. The District Court denied that motion, and we affirmed. See United States v.

Murphy, 479 F. App’x 418, 420 (3d Cir. 2012). In doing so, we noted that Murphy

already had been provided with certain grand jury transcripts and “has not shown any

rationale for disclosing additional grand jury proceedings, let alone [made] the strong

showing generally required.” Id. at 419 (quotation marks omitted).

       Murphy later filed a motion for relief from his sentence under 28 U.S.C. § 2255

and raised claims based on his grand jury proceeding and indictment (among other

things). The District Court denied the motion, and we denied a certificate of

appealability (“COA”). (C.A. No. 13-4016, Feb. 12, 2014.)

       Shortly after that ruling, Murphy filed suit in the United States District Court for

the District of Columbia regarding a request under the Freedom of Information Act

(“FOIA”). In that request, Murphy sought certain information regarding the grand jury
                                              2
proceeding that led to his indictment and a grand jury proceeding involving his co-

conspirator Richard Byrd. He filed the request with the Executive Office for United

States Attorneys, which provided most of the requested information and declined to

provide only the dates and times during which the grand jury met to hear testimony and

deliberate. The District of Columbia court entered summary judgment against Murphy,

and the United States Court of Appeals for the District of Columbia Circuit affirmed. See

Murphy v. Exec. Office for U.S. Attorneys, 789 F.3d 204, 213 (D.C. Cir. 2015).

       While that appeal was pending, Murphy filed the motion at issue here with his

sentencing court. Murphy titled his motion as a “motion for disclosure of grand jury

records pursuant to common law, and the First Amendment,” and he sought records

regarding his and Byrd’s grand jury proceedings that are similar in some respects to the

information he requested and obtained under FOIA. Murphy did not claim to require the

records for any particular purpose and instead disclaimed any intent to raise any

challenge to his grand jury proceeding.

       After directing the Government to respond to Murphy’s motion, the District Court

denied it. In doing so, the District Court accepted the Government’s representation that it

did not possess and thus could not produce certain of the records. The District Court

further concluded that one of Murphy’s requests was moot because the Government

provided the information in its response and that the remainder of his requests sought

records that are protected from disclosure by Fed. R. Crim. P. 6, which governs the


                                             3
secrecy and disclosure of grand jury material. Murphy appeals.1

                                             II.

       Murphy raises several challenges to the District Court’s ruling. He argues, for

example, that the District Court erred in applying Rule 6 to his requests because he

requested only “ministerial” records that do not implicate grand jury secrecy and that he

has both a common law and a First Amendment right to those records. See In re Grand

Jury Investigation (DiLoreto), 903 F.2d 180, 182 (3d Cir. 1990). He further argues that

the District Court itself should have provided records instead of denying certain of his

requests on the basis of the Government’s asserted inability to satisfy them. We need not

address these arguments as presented because, even if we agreed with Murphy in part

(which we do not decide), we ultimately conclude that the District Court did not abuse its

discretion in declining to disclose the records that Murphy sought. We will address

Murphy’s eight specific requests in three categories.

       First, Murphy sought disclosure of: (1) the judge’s instructions to the grand juries;

(2) the transcript of Byrd’s grand jury testimony; and (3) a copy of the grand jury records

maintained pursuant to Rule 6(c).2 Rule 6 and its rule of grand jury secrecy apply to


1
 The District Court’s denial of Murphy’s post-judgment motion for the disclosure of
grand jury records is a final civil order. See United States v. Miramontez, 995 F.2d 56,
58-59 (5th Cir. 1993). Murphy does not require a COA to appeal that order because it is
not related to any § 2255 proceeding and is not “the final order in a proceeding under
section 2255.” 28 U.S.C. § 2253(c)(1)(B). We thus have jurisdiction under 28 U.S.C. §
1291. We review the District Court’s ruling for abuse of discretion. See Douglas Oil Co.
v. Petrol Stops N.W., 441 U.S. 211, 223 (1979); United States v. McDowell, 888 F.2d
285, 289 (3d Cir. 1989).
                                             4
“anything which may reveal what occurred before the grand jury.” United States v.

Smith, 123 F.3d 140, 148 (3d Cir. 1997) (quotation marks omitted). These categories of

records clearly qualify. Thus, Murphy has no common law or First Amendment right to

these records and may obtain them only if disclosure is authorized by Rule 6. See id. at

148, 156. Murphy has not argued that the disclosure of these records is authorized by

Rule 6, and it is not. See Fed. R. Crim. P. 6(e)(3)(E); see also McDowell, 888 F.2d at

289 (“To support a motion for a judicially ordered disclosure of grand jury testimony, a

party must show a particularized need for that information which outweighs the public

interest in secrecy.”).

       Second, Murphy requested a copy of the captions of both his and Byrd’s

indictments. The Government responded that the indictments were publicly available,

but it reproduced the captions in its response for Murphy’s benefit and the District Court

deemed this request moot for that reason. Murphy argues that the accuracy of the

captions is “in dispute,” but he has not specified how or why he disputes it or how he

believes the purported dispute may be resolved. We thus agree that this request is moot.

       Finally, Murphy requested: (1) the court orders empaneling the grand juries; (2)

orders returning the indictments; (3) orders extending the grand juries’ periods of service;

and (4) orders discharging the grand juries. It would appear that the Government already


2
  That rule requires the grand jury foreperson to “record the number of jurors concurring
in every indictment” and provides that “the record may not be made public unless the
court so orders.” Fed. R. Crim. P. 6(c).

                                             5
has provided Murphy with all non-secret information that may be contained in these

orders. See Murphy, 789 F.3d at 207 (noting that Murphy was provided with, inter alia,

“the date the grand jury was impaneled and expired; the name of the judge who

supervised the grand jury; and the date on which the grand jury was convened and

returned an indictment for each particular criminal case”). Thus, it would further appear

that any other information that might be contained in these orders could reveal what

transpired before the grand jury and would be subject to the same analysis as the first

category of documents discussed above.3 Moreover, Murphy previously requested all

“ministerial grand jury material,” and we affirmed the District Court’s denial of that

request. Murphy, 479 F. App’x at 419. We further note that Murphy has not shown—

and in fact has expressly disclaimed—any conceivable need for whatever information

may be contained in these orders. Under the circumstances, we cannot say that the

District Court abused its discretion in declining to provide these orders, assuming that

they even exist.

                                            III.

       For these reasons, we will affirm the judgment of the District Court.




3
  In particular, it appears that this request may be designed to circumvent the District of
Columbia court’s ruling that Murphy is not entitled to know the dates and times of the
day that the grand juries met to receive evidence because that information might tend to
reveal the identity of grand jury witnesses. The District of Columbia Circuit has since
affirmed that ruling, see Murphy, 789 F.3d at 209-13, and we would not second guess its
decision even if we were at liberty to do so.
                                             6
