United States of America v. Gerald O. Jackson, a/k/a Jerry Lnu Gerald O. Jackson

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CLD-292 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2843
___________
UNITED STATES OF AMERICA
v.
GERALD O. JACKSON, a/k/a Jerry Lnu
Gerald O. Jackson,
Appellant
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 00-cr-00138-001)
District Judge: Honorable Garrett E. Brown, Jr.
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
August 20, 2009
Before: RENDELL, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: February 1, 2010 )
_________
OPINION
_________
PER CURIAM
Gerald O. Jackson appeals pro se from the order of the District Court denying his

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request to disclose the transcript of grand jury proceedings. We will summarily affirm.
See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
I.
Because Jackson’s appeal raises an issue regarding his previous appearances
before this Court, we will recount them in some detail. A federal jury found Jackson
guilty of conspiring to distribute and possess with the intent to distribute more than 100
grams of heroin in violation of 21 U.S.C. § 846. The District Court sentenced him to 262
months of imprisonment. Jackson challenged both his conviction and sentence on direct
appeal, and we affirmed. See United States v. Jackson, 39 Fed. Appx. 720 (3d Cir. 2002).
Jackson sought rehearing, which we denied on July 18, 2002. He has filed nothing
further in that appeal.
Jackson then filed a motion under 28 U.S.C. § 2255, raising allegations of
ineffective assistance of counsel and later adding a claim under Blakely v. Washington,
542 U.S. 296 (2004). The District Court denied the motion, and Jackson filed a motion
for reconsideration, purportedly under Rule 59(e). The District Court denied that motion
as well. Jackson appealed too late to challenge the District Court’s initial denial of his
§ 2255 motion, and his Rule 59(e) motion too had been untimely. Thus, for purposes of
appellate jurisdiction, we construed Jackson’s motion for reconsideration as one under
Rule 60(b) and declined to issue a certificate of appealability. United States v. Jackson,
C.A. No. 04-4622 (May 9, 2005 order). Jackson did not seek rehearing, but, on January

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12, 2007, he filed a “supplemental jurisdictional statement and answer to the procedural
question of timeliness.” By Clerk’s order issued June 21, 2007, we explained that no
action would be taken on that filing because it did not address the substance of our denial
of his request for a certificate of appealability and because the time for seeking rehearing
long had expired. Jackson has filed nothing further in that appeal.
After we declined to issue a certificate of appealability, Jackson filed a petition for
a writ of mandamus seeking to compel the District Court to rule on the Blakely claim he
had asserted in his initial § 2255 proceeding. We denied that petition. See In re Jackson,
C.A. No. 05-3046, 140 Fed. Appx. 367 (3d Cir. 2005). Jackson did not seek rehearing,
and has filed nothing further in that matter. Jackson then filed a Rule 60(b) motion,
challenging the regularity of his § 2255 proceeding and again challenging his conviction,
this time under Crawford v. Washington, 541 U.S. 36 (2004). The District Court denied
that motion, and we again declined to issue a certificate of appealability. United States v.
Jackson, C.A. No. 06-2833 (December 11, 2006 order). Jackson sought rehearing, which
we denied on March 7, 2007. Jackson has filed nothing further in that appeal either.
Finally, Jackson filed the motion at issue here under Rule 6(e)(3)(E)(i) of the
Federal Rules of Criminal Procedure. That rule authorizes the disclosure of otherwise-
secret grand jury material “preliminary to or in connection with a judicial proceeding.”
Fed. R. Crim. P. 6(e)(3)(E)(i). According to Jackson, he requires certain grand jury
materials to “supplement” a “Petition for Hearing currently pending before the Third

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The District Court’s denial of Jackson’s post-judgment Rule 6(e)(3)(E)(i) motion is a1
final civil order, and we have jurisdiction under 28 U.S.C. § 1291. See United States v.
Miramontez, 995 F.2d 56, 58-59 (5th Cir. 1993). We review the District Court’s ruling
for abuse of discretion. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211,
223 (1979); United States v. McDowell, 888 F.2d 285, 289 (3d Cir. 1989).
Jackson has never before raised any issue regarding these witnesses’ grand jury2
testimony, and has never claimed, and does not claim now, that his counsel rendered
ineffective assistance in that regard.
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Circuit Court of Appeals.” The District Court denied the motion by opinion and order
entered June 4, 2009, and Jackson appeals.1
II.
Jackson seeks disclosure of the grand jury testimony of two witnesses who
testified at his trial, Orlando Caprio and Sunny Mbonu-Ike, as well as “any other
witnesses relied upon to secure the indictment.” Jackson may have been entitled to
review Caprio’s and Mbonu-Ike’s grand jury testimony after they testified on direct
examination at trial if their grand jury testimony was related to the subject matter of their
trial testimony. See 18 U.S.C. § 3500(e); United States v. Wong, 78 F.3d 73, 83 (2d Cir.
1996); United States v. Budzanoski, 462 F.2d 443, 454 (3d Cir. 1972). At this stage,
however, he may seek disclosure of their grand jury testimony only under Rule
6(e)(3)(E)(i). See Wong, 78 F.3d at 83.2
“As a matter of public policy, grand jury proceedings generally must remain secret
except where there is a compelling necessity.” McDowell, 888 F.2d at 289. Thus, “[t]o
support a motion for a judicially ordered disclosure of grand jury testimony, a party must

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show a particularized need for that information which outweighs the public interest in
secrecy.” Id. The District Court concluded that Jackson had failed to show a
particularized need for the transcripts. We cannot say that it abused its discretion.
In particular, Jackson has not shown the need for this information in connection
with any pending or potential proceeding. He asserted in the District Court that he
requires it to supplement a “Petition for Hearing” pending in this Court, but, as explained
above, no such petition is pending and all of his previous matters are closed. In his
summary action response, Jackson now insists that “[f]ull briefing of this case will show
that Jackson’s case remains open,” apparently in the District Court. Jackson’s criminal
proceeding, however, has long been closed, and he has raised no colorable argument to
the contrary. Jackson also does not assert that he requires the transcripts to file any
particular proceeding in the future.
Moreover, as the District Court noted, Jackson’s explanation for why he needs
these materials is wholly conclusory. Before the District Court, Jackson asserted merely
that “there are inherent inconsistencies between the Mbonu-Ike and Caprio sworn
testimonies given at direct and at the Grand Jury,” and that, as a result, his sentence was
improperly enhanced and his trial was unfair because he was unable effectively to cross-
examine them. Jackson, however, never specified the alleged inconsistencies or why he
believed they existed. Thus, Jackson did not show any particularized need for these

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In his response on the issue of summary action in this Court, Jackson claims for the3
first time that a fellow inmate told him that “Mbonu-Ike told him that he told the grand
jury that he was the only one who went to New York with u/c task force officer Orlando
Caprio and that the drugs procured were actually his.” Jackson did not raise that
allegation before the District Court, so we do not consider in our disposition of this
appeal. The allegation does raise the issue of whether we should construe his response as
an application under 28 U.S.C. §§ 2244 and 2255 for authorization to file another § 2255
motion on the basis of newly-discovered evidence. We decline to do so, however,
because Jackson has not requested that relief and the response does not satisfy the
§§ 2244 and 2255 standard. In particular, Jackson has alleged no reason why he could
not have sought copies of the transcripts in the exercise of reasonable diligence before
now, perhaps in connection with one of his multiple prior proceedings. See
§§ 2244(b)(2)(B)(1), 2255(h)(1).
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materials.3
We acknowledge that the public interest in the secrecy of these witnesses’ grand
jury testimony is comparatively low because they testified at trial. See Dennis v. United
States, 384 U.S. 855, 869-72 (1966). Nevertheless, Rule 6 still requires a showing of a
particularized need before the grand jury testimony may be disclosed. The District Court
concluded that Jackson failed to show such a need, and we cannot say that it abused its
discretion. Accordingly, we will affirm the judgment of the District Court. Jackson’s
motion for the appointment of counsel in this Court is denied.

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