Filed: Sep. 15, 2020
Latest Update: Sep. 15, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ Nos. 20-1150 & 20-1662 _ UNITED STATES OF AMERICA v. JELANI C. SOLOMON, Appellant _ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal Action No. 2-05-cr-00385-001) District Judge: Honorable Arthur J. Schwab _ Submitted Pursuant to Third Circuit LAR 34.1(a) September 15, 2020 Before: SHWARTZ, RESTREPO and GREENBERG, Circuit Judges (Opinion filed: September 15, 2020) _ OPIN
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ Nos. 20-1150 & 20-1662 _ UNITED STATES OF AMERICA v. JELANI C. SOLOMON, Appellant _ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal Action No. 2-05-cr-00385-001) District Judge: Honorable Arthur J. Schwab _ Submitted Pursuant to Third Circuit LAR 34.1(a) September 15, 2020 Before: SHWARTZ, RESTREPO and GREENBERG, Circuit Judges (Opinion filed: September 15, 2020) _ OPINI..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 20-1150 & 20-1662
__________
UNITED STATES OF AMERICA
v.
JELANI C. SOLOMON,
Appellant
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 2-05-cr-00385-001)
District Judge: Honorable Arthur J. Schwab
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 15, 2020
Before: SHWARTZ, RESTREPO and GREENBERG, Circuit Judges
(Opinion filed: September 15, 2020)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Jelani C. Solomon appeals from the orders of the District Court denying (1) his
motion for reconsideration of an order requiring him to return Jencks Act and other
discovery materials, and (2) his “emergency motion” relating to that issue. We will
affirm.
I.
Solomon is a federal prisoner serving a life sentence imposed in 2008 following
his conviction of offenses relating to a cocaine-distribution conspiracy, during which he
arranged the murder of a witness’s father. We affirmed his convictions. See United
States v. Solomon, 387 F. App’x 258 (3d Cir. 2010). Solomon later challenged his
convictions in two motions under 28 U.S.C. § 2255. The District Court denied them, and
we denied certificates of appealability. (C.A. Nos. 19-3221 & 13-2632.) Solomon has
unsuccessfully challenged his convictions in numerous other kinds of filings as well.
Solomon’s repetitive challenges led the District Court to impose two filing injunctions
(ECF Nos. 912 and 946), which Solomon did not appeal.
The orders at issue here concern grand jury transcripts, cooperating witness
statements, and other confidential materials that the Government produced to Solomon
before his trial (in part pursuant to the Jencks Act, 18 U.S.C. § 3500) and that Solomon
agreed to return. Solomon has instead used these material to seek relief on the basis of
alleged grand jury improprieties since at least his first § 2255 motion. Despite his
repeated unsuccessful efforts, and despite the District Court’s filing injunctions, Solomon
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filed in 2019 a “motion to take judicial notice” and a “motion for clarification” in which
he again challenged his convictions on the grounds (inter alia) of alleged grand jury
improprieties. In support, Solomon publicly filed some of the confidential material that
the Government had produced. The District Court denied those motions, and we declined
to disturb its rulings. (C.A. No. 19-3246.)1
Solomon’s filings prompted the Government to file a motion of its own for the
return of the materials in question, which it asserted was necessary for the protection of
cooperating witnesses. (ECF No. 990.) The District Court granted that motion (ECF No.
1003) and later denied Solomon’s motion for reconsideration (ECF No. 1006). Solomon,
who apparently has not complied with the return order, appeals from that ruling at C.A.
No. 20-1150. At about the same time, Solomon filed with the District Court what he
called an “emergency motion pursuant to return of Jencks material” (ECF No. 1007), the
nature of which is discussed below. The District Court denied that motion, and Solomon
appeals from that ruling at C.A. No. 20-1662. These appeals are consolidated.2
II.
1
Specifically, we denied Solomon’s request for a certificate of appealability to the extent
that one was required and summarily affirmed to the extent that one was not. The
District Court also sealed some of Solomon’s filings, but he did not challenge that order.
2
The District Court’s jurisdiction is discussed below, but we have appellate jurisdiction
over the District Court’s final decisions under 28 U.S.C. § 1291.
3
We begin with the District Court’s orders requiring Solomon to return discovery
materials and declining to reconsider that ruling. The District Court did not identify the
source of its jurisdiction to order the return of the materials, but it retained jurisdiction to
order that relief as part of its inherent power over this criminal proceeding. Cf. United
States v. Bein, 214 F.3d 408, 411 (3d Cir. 2000) (“A district court has jurisdiction to
entertain a motion for return of property even after the termination of criminal
proceedings[.]”); United States v. Frank,
763 F.2d 551, 552 (3d Cir. 1985) (noting that “a
court has the inherent power to order evidence returned at the conclusion of criminal
proceedings”); Fed. R. Crim. P. 16(d)(1) (authorizing entry of a discovery related
protective order “[a]t any time”).
We review the District Court’s ruling for abuse of discretion. See United States v.
Morales, 807 F.3d 717, 720 (5th Cir. 2015); United States v. Cordova,
806 F.3d 1085,
1090 (D.C. Cir. 2015). Solomon has not meaningfully challenged the District Court’s
exercise of its discretion. Instead, his sole argument on this issue is that the Government
lost “Article III standing” in 2007 when it informed his counsel that one of its
cooperating witnesses had lied and that, as a result, all orders entered thereafter (as well
as his underlying convictions) are “void.” That argument is frivolous, and the District
Court otherwise acted within its discretion for the reasons that it explained.3
3
The District Court reasoned, inter alia, that Solomon no longer has any legitimate need
for these materials because his trial and direct appeal have concluded. We add that
Solomon has no need of these materials for collateral challenges either. Solomon already
4
III.
We now turn to the District Court’s order denying Solomon’s “emergency
motion.” In that motion, Solomon alleged that prison personnel, at his prosecutor’s
request, searched his cell for the materials in question (unsuccessfully, as it turns out).
He further alleged that the search violated his rights under the Fourth Amendment and the
Eighth Amendment, and he asked the District Court to (1) put the Bureau of Prisons and
his prison staff “on notice” that they should not search his cell without a court order, and
(2) order the disclosure of emails between his prosecutor and his prison. The District
Court denied Solomon’s motion on the merits.
As above, the District Court did not identify the source of its jurisdiction over this
motion. The District Court had subject-matter jurisdiction over Solomon’s constitutional
claims because his underlying prosecution satisfies the Article III “case or controversy”
requirement. See United States v. Thomas, 713 F.3d 165, 169, 174 (3d Cir. 2013). The
injuries of which Solomon complains, however, are not properly remedied in the context
of his criminal case. Solomon challenges his treatment as a prisoner, not as a criminal
defendant, and claims such as his are more appropriately asserted in a civil action
addressed to his treatment in and the conditions of his confinement. Cf. United States v.
Norwood,
602 F.3d 830, 836-37 (7th Cir. 2010) (noting that “a motion in a criminal case
has unsuccessfully challenged his convictions under § 2255 on the basis of information
contained in these materials, and he cannot file another § 2255 motion on the basis of
information previously known to him. See 28 U.S.C. §§ 2244(b)(2)(B) & 2255(h)(1).
5
is not a proper method of commencing a civil suit,” which requires a filing fee and the
naming and service of proper defendants). Thus, we will affirm the denial of Solomon’s
emergency motion on the ground that Solomon should have asserted his claims in an
appropriate civil action. We note, however, that any such civil action would have been
frivolous.4
IV.
For these reasons, we will affirm the orders of the District Court. Solomon’s
motion to “add plain error and fraud upon court claims” is denied.
4
Solomon alleged in his one-page motion that a single search of his cell for the materials
in question violated his Fourth and Eighth Amendment rights. But Solomon, as a
convicted prisoner, did not have any Fourth Amendment expectation of privacy in his
cell. See Hudson v. Palmer, 468 U.S. 517, 525-26 (1984); Parkell v. Danberg,
833 F.3d
313, 325 (3d Cir. 2016); see also Willis v. Artuz,
301 F.3d 65, 67 (2d Cir. 2002)
(applying Hudson to “searches instigated by prosecutors”). Nor did Solomon allege
anything about this single search even arguably approaching an Eighth Amendment
violation. Cf. Scher v. Engelke,
943 F.2d 921, 924 (8th Cir. 1991) (holding that 10
retaliatory searches in 19 days, some of which resulted in “violent dishevelment,” could
constitute an Eighth Amendment injury). We recognize that, if Solomon had asserted
these claims in a civil action, he might have been entitled to leave to amend before any
dismissal on these grounds. Solomon, however, neither argues that the District Court
erred in that regard nor asserts anything suggesting that he could state a nonfrivolous
claim if given another chance. To the contrary, Solomon’s only new contention on
appeal is that the search was illegal because it was based on the return order, which he
further contends is “void” in light of the Government’s alleged lack of Article III
standing as discussed above. Once again, that argument is itself frivolous.
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