United States of America, Plaintiff-appellee, v. Lonnie Schmidt, Defendant-appellant, 5 F.3d 543 (9th Cir. 1993)

Appeal from the United States District Court for the Eastern District of California, D.C. No. CV-92-00320-1kk; Lawrence K. Karlton, District Judge, Presiding.

E.D. Cal.

AFFIRMED.

Before: HUG and LEAVY, Circuit Judges and REAL,^**  Chief District Judge

MEMORANDUM^*** 

Defendant LONNIE SCHMIDT (SCHMIDT) pro-se appeals the denial of his motion pursuant to 28 U.S.C. § 2255 and Rule 60(b), Fed. R. Civ. P. Many of the matters raised by SCHMIDT have been previously disposed of in United States v. Schmidt, 947 F.2d 362 (9th Cir. 1991). The remainder of the matters raised are without merit and we affirm.

SCHMIDT alleges that the prosecutor usurped the function of the grand jury that returned his indictment. We review this claim de novo. SCHMIDT alleges no facts that would indicate any usurpation of the grand jury proceedings. He merely speculates to create the scenario he wished to present to the trial court. That is not sufficient. See United States v. De Tar, 832 F.2d 1110 (9th Cir. 1987), --- U.S. ----, 111 S. Ct. 2811 (1991). His claims of lack of a quorum, fair cross-section of the community, and failure to record individual votes of the grand jurors are without merit. No hearing was necessary to deny this motion.

SCHMIDT'S 60(b) motion raised a number of alleged defects in the exercise of jurisdiction by the district court. We review this ruling de novo. The court clearly had jurisdiction. 31 U.S.C. § 5322, 18 U.S.C. § 3231. See Pub. L. No. 97-258, 96 STAT. 877, 1000 (1982).

The appeal has no merit.

The judgment is affirmed.