U.S. v. Collis

• Citation: 128 F.3d 313
• Decision Date: 07 July 1997
• Docket Number: No. 96-1127,96-1127
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald COLLIS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 313

128 F.3d 313

UNITED STATES of America, Plaintiff-Appellee, v. Ronald COLLIS, Defendant-Appellant.

No. 96-1127.

United States Court of Appeals Sixth Circuit.

Argued May 2, 1997.

Decided July 7, 1997. ^*

Patricia G. Blake, David Debold (briefed), Stephen L. Hiyama, Asst. U.S. Attorney (argued), Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.

David C. Tholen (argued), Stacey M. Studnicki (briefed), Federal Public Defenders Office, Detroit, MI, for Defendant-Appellant.

Before: BROWN, KENNEDY, and BOGGS, Circuit Judges.

BOGGS, Circuit Judge.

Ronald Collis was convicted of obstructing justice when he submitted a forged letter to a district court in support of leniency at a supervised release violation hearing. Collis appeals both his conviction and sentence, arguing that (1) the forged letter he submitted to the district court in support of leniency could not have formed the basis of an obstruction of justice charge because there was no evidence that the letter affected the court's sentencing determination; (2) the district court erred in finding that the attorney-client privilege did not apply to Collis's counsel's testimony regarding the forged letter; and (3) the district court erred in enhancing his sentence pursuant to U.S.S.G. § 2J1.2(b)(2). Because we find no error, we affirm.

I

This appeal stems from a parole violation after an earlier conviction. In 1990, Collis pled guilty to embezzling over $200,000 from a pension fund. As a result of this guilty plea, Collis was sentenced in federal court to a term of 12 months in a half-way house and three years of supervised release. The stay at the half-way house, however, did not stem Collis's predilection for embezzlement. About six months after being released, Collis began embezzling funds from Perfection Industries, where he was working at the time as the in-house accountant. This resulted in state criminal proceedings beginning against him and ultimately resulted in his pleading guilty in Detroit Recorder's Court to the lesser charge of attempted embezzlement.

Collis's probation officer, Charlene Minor, learned of the Recorder's Court case and also learned that Collis had left the state without seeking permission. As a result, she prepared a supervised release violation petition alleging that Collis had committed a new offense while on release and that he had left the district without permission. A revocation hearing was held and United States District Court Judge Zatkoff found that Collis had committed both of the alleged violations. He then invited Collis's counsel, Noel Lippman, to address the court before imposing sentence. In response, Lippman handed the judge three letters, all of which had been given to Lippman by Collis.

One of the letters was forged. ¹ The letter appeared to be signed by Thomas P. Schwanitz, the principal owner of the firm where Collis had been working and was on the firm's letterhead. It is this letter that forms the basis for the obstruction of justice charge:

I am writing to you on behalf of my employee, tax manager, Ronald Collis. He will be in your courtroom on May 12, 1994.

Mr. Collis has been my employee since January 17, 1994, however, I have known Mr. Collis since 1974. As an employer Mr. Collis has been an ideal employee. He comes to work everyday [sic] with a smile on his face, producing to his ability, puts in long hours, and is very helpful to the staff. Most of all, he is very much client oriented, and always is putting the clients [sic] needs ahead of his or the firms [sic]. One would never know the problems he faces, and the vast amount of tragedy he is [sic] and has faced over the last five years.

On a personal level, our office was quite skeptical of employing him, however, the skepticism has been replaced. Mr. Collis is a man trying to rehabilitate himself through many facets. He has for the last year and a half been under the care of a psychologist. He meets on a weekly basis, and has also been under medication proscribed by the doctor, and takes the medication religiously.

In addition, Mr. Collis has been doing community service work without any recognition. He has devoted many evenings since January, 1994 to help the accounting students of Mount Clemens's High School for their national evaluations. He has also written, developed, and presented six half-hour cable programs for governmental access regarding Proposal A, how to avoid an IRS audit, What to do for an IRS audit, and the last two shows were on how to start a small business. These programs were broadcast over Metrovision, and Mr. Collis was asked and has produced similar shows for Clinton Township, and Shelby Township.

Mr. Collis last month wrote and was published in the California Medical Journal an article on "How to Help Avoid Employee Embezzlement and Fraud". He would not accept any remuneration for the article, as he felt it was part of his recovery.

Currently, the Michigan Association of CPA's has asked our firm to represent them at career day for Farmington High School, and Ferndale High School. We are currently awaiting your decision on Mr. Collis since he would be the employee we would have represent the MACPA because of his motivational speaking.

In his personal life, Mr. Collis is striving to improve himself. It is quite evident in the workplace. In his family life, he and his wife and [sic] trying to work out their various problems caused by Mr. Collis' mistake, and one can see great strides have been made. Financially, things have been very difficult for Mr. Collis, since he is the sole support of his wife and child, plus he is supporting a second family.

However, as you are aware, Mr. Collis agreed to make restitution to Perfection Industries, Inc. at the rate of $555.55 per month for the next 36 months. Mr. Collis has made all of his payments to date. Also, Chief Justice Robeson has delayed entering a guilty plea and may be placed [sic] Mr. Collis on probation in the future next to insure all restitution payments are being made.

I would very much like Mr. Collis to be given a second chance in this case. Judge Robeson too thought so in going along with the agreement made with the prosecutor.

If you find Mr. Collis is in violation of his supervised release, I would ask that you consider other alternatives than that of sending him to jail. These alternatives could include; extending Mr. Collis' supervised release until all payments have be [sic] met, community service, whereby the community would benefit, place Mr. Collis on a tether or home confinement so he could maintain income for his family and continue to make his required payments, or at very worst, send Mr. Collis to a half-way house, which there again he could maintain his income. In addition, by implementing any of the alternatives, Mr. Collis could attend his weekly meetings with his psychologist, Dr. Halberstadt to help him continue his rehabilitation.

I thank you for the time in reading this letter, and hope that you will take this into account at Mr. Collis' hearing.

Joint Appendix at 116-17.

After receiving the three letters, Judge Zatkoff sentenced Collis to eight months in prison. No additional supervised release or fine was imposed.

Sometime after the revocation sentence had become final, a member of Judge Zatkoff's staff learned that the Schwanitz letter was a fabrication. The matter was then referred to the United States Attorney's Office and resulted in a two-count indictment, including the obstruction of justice charge. ²

During trial, Lippman was called to testify. He testified that he received the Schwanitz letter from Collis before the hearing and that the letter had originally been furnished to him unsigned. After making some suggested changes to the letter, Lippman returned it to Collis. The signed version was subsequently presented to Lippman by Collis, along with a letter from Collis's brother and a letter from his psychiatrist.

Schwanitz also testified at trial. He testified that he did not draft, sign or even see the letter. He also testified that the letter contained several other falsehoods. For one, he testified that Collis was not going to represent the Michigan Association of CPAs at career day. He was also unaware that Collis's CPA license was inactive and he was unaware of the supervised release violation proceeding. In addition, it was shown at trial that Collis had never submitted the embezzlement article for publication.

Judge Zatkoff testified at trial as well. He indicated that the letters submitted by Collis are the type he normally receives and relies on and that he had read the forged letter submitted by Collis before he imposed sentence. Collis did not testify at trial and continues to maintain that he did not provide the Schwanitz letter to his attorney.

II

Collis argues first that the Schwanitz letter could not have formed the basis of an obstruction of justice charge because there was no evidence the letter affected the court's determination of guilt or the sentence imposed. While Collis's argument is styled as a challenge to the sufficiency of the indictment, it is more appropriately viewed as a challenge to the sufficiency of the evidence at trial. ³ Under either analysis, however, Collis's argument lacks merit.

A. Sufficiency of the indictment

Collis argues that the indictment did not set forth all of the elements of § 1503 or give notice of the charges he faced. We disagree. The charged offense fully tracks the relevant language of § 1503.

We review a challenge to the sufficiency of an indictment de novo. United States v. Superior Growers Supply, Inc., 982 F.2d 173, 177 (6th Cir.1992).

To pass constitutional muster, an indictment must meet a two-prong test: first, the indictment must set out all of the elements of the charged offense and must give notice to the defendant of the charges he faces; second, the indictment must be sufficiently specific to enable the defendant to plead double...