UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALBERT THROWER,

Defendant - Appellant.	No. 98-2253 and 98-2313

(D.C. No. CR-88-466-JC)

(District of New Mexico)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and LUCERO, Circuit Judges.

Albert Thrower, appearing pro se, presents two separate appeals of the district court's denial of his motion to preserve records and to produce copies of grand jury transcripts, allegedly exculpatory evidence, and telephone tape recordings, at his own expense. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm No. 98-2253, the only appeal over which we have jurisdiction, and refuse to consider No. 98-2313, which is untimely.1

Appellant was initially indicted in federal district court in New Mexico in 1988 for conspiracy and use of communications facilities to distribute marijuana. That indictment was later dismissed without prejudice on the government's motion because of state law charges for the same alleged criminal acts filed against appellant by the State of Ohio. In 1989, appellant pled guilty in Ohio and is currently serving his term in an Ohio state prison. He has made numerous unsuccessful attempts in state court to withdraw his guilty plea. The appeals before us concern the denial of a motion that appellant filed in federal district court in New Mexico attempting to show that evidence relating to his withdrawn federal indictment would void his Ohio conviction.

The district court found in its order dated August 7, 1998, that appellant failed to make a particularized showing of his need for the materials he requests, and that none of the materials requested from the government is exculpatory as defined by Brady v. Maryland, 373 U.S. 83 (1963). Furthermore, the court found that appellant failed to make the requisite showing of a particularized, compelling need for the disclosure of grand jury transcripts necessary to warrant a violation of the secrecy of grand jury proceedings. See In re Grand Jury 95-1, 118 F.3d 1433, 1437 (10th Cir. 1997); In re Lynde, 922 F.2d 1448, 1452 (10th Cir. 1991). As the district court noted, the fact that the grand jury has concluded its operations does not affect the standard for considering appellant's motion. See In re Lynde, 922 F.2d at 1454.

Appellant's briefs and supporting materials are filled with nothing more than conclusory speculation. He fails to satisfy the "demanding requirements" that he show a particularized need for grand jury materials that outweighs the need to protect the grand jury's secrecy. In re Grand Jury 95-1, 118 F.3d at 1437 (citations omitted). As to the remaining materials appellant seeks, the district court performed an in camera review of transcripts of tape recorded conversations and investigative reports for exculpatory evidence under Brady and concluded that the materials contain no evidence requiring disclosure. After reviewing the materials ourselves, we reach the same conclusion.

Appellant presents us with nothing, beyond speculative allegations of official perfidy, that would lead us to question the district court's careful conclusion that appellant failed to meet his burden for obtaining disclosure of the requested materials.

AFFIRMED.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge