United States v. Steele ( 2001 )


Menu:
  •                                                                                                                            Opinions of the United
    2001 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    2-21-2001
    United States v. Steele
    Precedential or Non-Precedential:
    Docket 99-3567
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001
    Recommended Citation
    "United States v. Steele" (2001). 2001 Decisions. Paper 28.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2001/28
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    Filed February 21, 2001
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 99-3567
    UNITED STATES OF AMERICA
    v.
    CHARLES E. STEELE,
    Appellant
    ON APPEAL FROM THE
    UNITED STATES DISTRICT COURT
    FOR THE WESTERN DISTRICT OF PENNSYLVANIA
    D.C. Crim. No. 96-cr-67
    District Judge: The Honorable Maurice B. Cohill, Jr .
    Argued: January 18, 2001
    Before: ROTH, BARRY, Cir cuit Judges and
    SHADUR,* District Judge
    (Opinion Filed: February 21, 2001)
    Thomas W. Patton, Esquire (Argued)
    Office of Federal Public Defender
    113 West 9th Street
    Erie, Pennsylvania 16501
    Attorney for Appellant
    _________________________________________________________________
    * The Honorable Milton I. Shadur, United States District Judge for the
    Northern District of Illinois, sitting by designation.
    Bonnie R. Schlueter, Esquire
    (Argued)
    Assistant United States Attorney
    Office of United States Attorney
    633 United States Post Office
    & Courthouse
    Pittsburgh, Pennsylvania 15219
    Attorneys for Appellees
    OPINION OF THE COURT
    BARRY, Circuit Judge.
    Charles Steele was indicted in April 1996 for mail fraud
    stemming from a scheme to overbill his lawfirm's clients
    and for obstruction of justice for submitting alter ed
    documents in response to a March 15, 1994 grand jury
    subpoena. Following an eight-day jury trial, Steele was
    found guilty of mail fraud and four of five obstruction
    counts. The District Court sentenced Steele to 33 months
    imprisonment, three years of supervised r elease, and
    restitution. Steele appealed to this Court, and we affirmed
    his conviction. United States v. Steele, 
    135 F.3d 768
    (3d
    Cir. 1997), reh'g denied, (unpublished 1/7/98), cert.
    denied, 
    118 S. Ct. 2356
    , reh'g denied , 
    119 S. Ct. 287
    (1998).
    On January 13, 1999, Steele filed a motion to vacate his
    sentence pursuant to 28 U.S.C. S 2255. He contended that
    the evidence supporting the obstruction of justice counts
    was insufficient to meet the standard set forth in United
    States v. Nelson, 
    852 F.2d 706
    (3d Cir . 1988), and that his
    attorney had provided ineffective assistance in not making
    an argument based on Nelson at trial. The basis of Steele's
    claim was that the government did not pr ove that the
    March 15 subpoena had been issued as part of an actual
    grand jury investigation. The District Court denied the
    motion, holding that the sufficiency of the evidence had
    previously been litigated. As to the inef fective assistance
    claim, the Court noted that trial counsel had moved to
    dismiss the obstruction charge citing, inter alia, Nelson. The
    2
    Court stated that Steele's counsel had raised the issue in a
    trial brief, in a Motion for Judgment of Acquittal, before and
    at the charge conference, and on appeal.
    The District Court denied Steele's request for a certificate
    of appealability, but this Court granted the r equest and
    certified for appeal two questions: "(1) whether appellant is
    entitled to an evidentiary hearing on his section 2255
    motion" in light of Nelson's mandate that a defendant "be
    afforded an opportunity to question whether the United
    States Attorney secured the subpoena in furtherance of a
    then present contemplation that the subpoenaed evidence
    would be presented to a grand jury," and"(2) if so, and if
    the facts in this case ultimately show that the subpoena
    was not secured in furtherance of a then pr esent
    contemplation that the subpoenaed evidence would be
    presented to a grand jury, whether appellant is``actually
    innocent' of the four counts of obstruction of justice." App.
    III at 731. It is those questions only which we answer.1
    Because we conclude that the motion, files, and r ecord of
    the case conclusively show that the subpoena at issue was
    "secured in furtherance of a then pr esent contemplation
    that the subpoenaed evidence would be presented to a
    grand jury," Steele is not entitled to an evidentiary hearing
    on his S 2255 motion. See United States v. Day, 
    969 F.2d 39
    , 41-42 (3d Cir. 1992). We, thus, answer the first
    question in the negative and do not reach the second.
    A grand jury investigation can be a pending judicial
    proceeding for purposes of 18 U.S.C. S 1503, but "[n]ot
    every investigation in which grand jury subpoenas ar e used
    ripens into a pending grand jury investigation." 
    Nelson, 852 F.2d at 710
    . As we explained in Nelson , grand jury
    subpoenas often are issued by Assistant U.S. Attorneys
    _________________________________________________________________
    1. The government has argued, among other things, that certification
    should not have been granted and that the doctrine of law of the case
    prohibits reconsideration of the Nelson issue. Without pausing to decide
    whether the government is right or wrong as to one or both of its
    arguments, we will move immediately to the certified questions. We note
    that in considering these questions, we need not consider whether Steele
    raised his specific claim in haec verba at trial or on appeal and, if not,
    whether he has shown the cause and prejudice r equired in the
    traditional S 2255 case for failing to do so.
    3
    acting under Fed. Rule Crim. Pro. 17(a) without meaningful
    judicial oversight. Subpoenas can, therefor e, be used to
    facilitate a prosecutor's or other law enfor cement agency's
    investigation rather than the grand jury's investigation. 
    Id. at 710.
    On the other hand, rigid rules marking the start of
    a grand jury investigation "can be easily cir cumvented by
    the government and offer the guilty a sanctuary among
    empty technicalities." 
    Id. (quotation omitted).
    Therefore, we
    have "counselled a case by case inquiry into whether the
    subpoenas were issued in furtherance of an actual grand
    jury investigation, i.e., whether they were issued ``to secure
    a presently contemplated presentation of evidence before
    the grand jury.' " 
    Id. (quoting United
    States v. Walasek, 
    527 F.2d 676
    , 678 (3d Cir. 1975)).
    By definition, the rejection of rigid rules leaves courts
    with a rather vague standard by which to deter mine
    whether a grand jury investigation was pending at the
    relevant time. At a minimum, S 1503 r equires that a grand
    jury be sitting at the time the subpoena issues, although
    the mere existence of a potentially unr elated grand jury
    sitting in the same district is not enough. United States v.
    Davis, 
    183 F.3d 231
    , 241 (3d Cir. 1999). No formal act is
    required to establish a pending investigation, however.
    
    Walasek, 527 F.2d at 678
    . Indeed, this Court has rejected
    suggestions "that an investigation be deemed pending only
    if (1) the grand jury actually hears testimony, (2) the grand
    jury plays an active role in the decision to issue the
    subpoena, or (3) the grand jury is aware of the subpoena at
    the time of the alleged obstruction of justice." 
    Nelson, 852 F.2d at 710
    (citations and quotations omitted). "[A]dding
    such a gloss to the test laid down in Walasek would
    frustrate the purpose of the obstruction of justice statute."
    United States v. Simmons, 
    591 F.2d 206
    , 209 (3d Cir. 1979).
    The evidence before the trial jury showed that Steele
    produced documents which were received by the grand jury
    and signed for by the grand jury deputy foreperson about
    one month after the issuance of the March 15 subpoena.
    One of the documents in evidence is the receipt signed by
    the deputy foreperson, which states that the grand jury was
    empaneled on March 15, 1994, the same date the
    subpoena was issued. The subpoena gave Steele's lawfirm
    4
    the option to send a representative to appear personally
    before the grand jury to present the r ecords. Steele's
    partner, Matthew Hoffman, waived that right in an affidavit
    admitted into evidence. Moreover, Julia Rhyner, Steele's
    secretary, testified at trial that postal inspectors interviewed
    her on February 17, 1994 and advised her that she would
    be a "witness" rather than a "defendant," indicating that the
    decision to prosecute Steele was contemplated before the
    issuance of the grand jury subpoena.
    Steele may be correct that none of these facts alone is
    enough. However, the facts together show that (1) a grand
    jury existed concurrently with the issuance of the subpoena
    and either had begun or was prepared to begin an
    investigation upon receipt of the evidence; (2) the grand
    jury would have been available for Steele, Hof fman or a
    representative of the firm to appear before in person had
    any of them so desired; (3) the evidence was, in fact, given
    to the grand jury and given in a timely fashion; and (4)
    there was a then-present contemplation not merely of
    presenting the subpoenaed evidence to the grand jury but
    of prosecution. This is more than enough to establish that
    the subpoena was issued as part of a grand jury
    investigation and is at least as much as was found
    sufficient in Nelson. Indeed, in Nelson, the subpoenaed
    evidence was not received by the grand jury for months, yet
    we held that "we cannot say that the subpoenas could not
    have been issued in furtherance of a present contemplation
    to present evidence to a grand jury." 
    Nelson, 852 F.2d at 711
    .
    One final note. To the extent Steele ar gues that Nelson
    stands for the proposition that every obstruction case
    requires testimony from the attor ney who issued the first
    subpoena, he is incorrect. Nelson actually states that:
    A party on trial for obstruction of a grand jury
    investigation alleged to have begun upon the issuance
    of a grand jury subpoena must be affor ded an
    opportunity to question whether the United States
    Attorney or his or her representative secured the
    subpoena in furtherance of a then present
    contemplation that the subpoenaed evidence would be
    presented to a grand jury.
    5
    
    Id. (emphasis added).
    Read in context, this passage from
    Nelson merely reiterates our r eluctance to establish some
    technicality as proof of the existence of a pending
    proceeding. We specified that a defendant must be allowed
    to question "whether" the Assistant U.S. Attor ney
    contemplated presentation to a grand jury, not that the
    defendant must be able to actually question the Assistant
    himself or herself.
    Given that we find, as a matter of law, that the evidence
    warrants rejection of Steele's Nelson claim, we also reject
    his suggestion that the jury instructions for eclosed inquiry
    into whether the government met its Nelson burden. We
    find, in any event, that they did no such thing.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    6