United States v. Payne

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 6, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50862
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THURMAN D. PAYNE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:01-CR-899-3
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Thurman D. Payne, prisoner number 16992-180, moves this
court for authorization to proceed in forma pauperis (IFP) in his
appeal from the district court’s denial of his motions to view
grand jury materials and for production of audiotapes. Payne
argues that he should be permitted to proceed IFP due to his
poverty. Payne further argues that he should be granted access
to grand jury materials because these items might show
irregularities in his grand jury proceedings. Payne will not be

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No. 05-50862
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permitted to proceed IFP unless he shows that he is impecunious
and that his appeal is taken in good faith. See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983); Carson v. Polley, 689 F.2d
562, 586 (5th Cir. 1982). To establish good faith, Payne must
show that he will raise a nonfrivolous appellate claim. See
Howard, 707 F.2d at 220.
The record does not support Payne’s assertion of
improprieties in relation to his grand jury proceedings and
indictment. Payne’s arguments on this issue amount to no more
than a thinly veiled request for authorization to conduct a
fishing expedition in relation to grand jury materials. This is
an improper use of these materials, and Payne has not shown that
he should be permitted to examine them or that the district court
erred in denying his request for such an examination. See United
States v. Miramontez, 995 F.2d 56, 59 (5th Cir. 1993); United
States v. Carvajal, 989 F.2d 170 (5th Cir. 1993). Payne likewise
has not shown that he will raise a nonfrivolous issue on appeal.
Payne’s request to proceed IFP is DENIED, and this appeal is
DISMISSED as FRIVOLOUS. See 5TH CIR. R. 42.2.
We note that Payne has presented his claim concerning the
purported problems with his indictment in several filings with
both the district court and this court, and there is no
indication that he intends to cease his attempts to relitigate
this frivolous claim. Payne is WARNED that he could receive
sanctions if he files any other pleadings challenging the

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purported irregularities in his grand jury proceedings and
indictment in either the district court or this court. See
Coughlan v. Starkey, 852 F.2d 806, 817 (5th Cir. 1988); Farguson
v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986). IFP
MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
ISSUED.

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