United States v. Nissenbaum ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
10-30-2002
USA v. Nissenbaum
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-2599
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"USA v. Nissenbaum" (2002). 2002 Decisions. Paper 691.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 01-2599
_______________
UNITED STATES OF AMERICA
v.
ROBERT M. NISSENBAUM,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 00-cr-00570)
District Judge: Honorable Jay C. Waldman
Submitted Under Third Circuit LAR 34.1(a)
on June 13, 2002
Before: ROTH, RENDELL
and ROSENN, Circuit Judges
(Opinion filed October 30, 2002)
OPINION
ROTH, Circuit Judge:
This appeal follows a jury trial at which the appellant, Robert Nissenbaum, was
convicted on 19 counts of mail fraud under 18 U.S.C. § 1341 and sentenced to 21 months
in prison. Nissenbaum contends on appeal that (1) the District Court abused its discretion
in declining to hold a hearing on Nissenbaum’s pretrial motion to dismiss the indictment
for prosecutorial misconduct, and (2) Nissenbaum is entitled to a new trial because the
indictment was based on an allegedly legally invalid theory of mail fraud, which error was
allegedly compounded by the instructions given to the jury.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a denial of
a hearing on a pretrial motion for an abuse of discretion, see United States v. Voigt, 89 F.3d
1050, 1066-1068 (3d Cir.), cert. denied, 519 U.S. 1047 (1996), and review for plain error
jury instructions to which no objection was preserved at trial. See United States v. Antico,
275 F.3d 245, 265 (3d Cir. 2001).
The facts of this case will not be recited here as they are well known to the parties.
Nissenbaum claims that the District Court abused its discretion in declining to hold
a pretrial hearing on his allegation that the government investigation involved prosecutorial
misconduct. He contends that the government acted impermissibly by allowing him to
submit to a deposition without informing him that he was the subject of a criminal
investigation.
A defendant seeking a hearing on the prosecutor’s alleged investigative misconduct
must make a prima facie showing of the alleged wrongdoing. See generally United States v.
Armstrong, 517 U.S. 456, 463-468 (1996). Nissenbaum failed to demonstrate
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unconstitutional conduct by the government. The District Court gave Nissenbaum the
opportunity to renew his motion for a hearing by filing affidavits which would support his
allegations of collusion. Nissenbaum failed, however, to effectively support these
allegations. Thus, we hold that the District Court did not abuse its discretion in denying
Nissenbaum’s motion without a hearing.
Nissenbaum also alleges that he is entitled to a new trial because the indictment was
based on a legally invalid theory of mail fraud1 and that this error was compounded by the
instructions given to the jury. He agues that the jury instruction was insufficient because it
permitted the jury to find concealment if it found Nissenbaum had stated “half-truths, or
failed to disclose facts.” He urges instead that we should hold that a duty to disclose is
required in order for nondisclosure to fall within the scope of the mail fraud statute. The
indictment against Nissenbaum charged, however, that he made communications which
included material omissions or at best, half-truths. Thus, the allegations against
Nissenbaum were more than a simple failure to disclose. Mail fraud “must involve some
sort of fraudulent misrepresentations or omissions reasonably calculated to deceive . . ..”
United States v. Pearlstein, 576 F.2d 531, 535 (3d Cir. 1978). Such “‘fraudulent
representations’ [under § 1341] may be effected by deceitful statements of half-truths or
the concealment of material facts . . ..” United States v. Olatunji, 872 F.2d 1161, 1167 (3d
1
Nissenbaum did not raise this objection in the District Court and thus we can
construe the indictment liberally in favor of validity. See United States v. Cefaratti, 221
F.3d 502, 507 (3d Cir. 2000).
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Cir. 1989) (quoting United States v. Allen, 554 F.2d 398, 410 (10th Cir.1977)).
Nissenbaum made false statements concealing material facts to Provident in describing his
daily routine and he failed to make any reference to the bookstore he owned. We conclude
that the indictment properly charged false statements and material misrepresentations and
omissions. Thus, it did not rest on an invalid theory. Further, the District Court properly
charged the jury on the elements of a fraudulent scheme; indeed, it did so along the lines
suggested by Nissenbaum.
For the aforementioned reasons, we will affirm the order of judgment of the District
Court.
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TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge
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