U.S. v. Susskind

• Decision Date: 28 May 1992
• Docket Number: Nos. 91-1003,s. 91-1003
• Citation: 965 F.2d 80
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerome SUSSKIND (91-1003); James Rumler (91-1004); and Scott Nickerson (91-1005), Defendants-Appellants. to 91-1005.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 80

965 F.2d 80

UNITED STATES of America, Plaintiff-Appellee, v. Jerome SUSSKIND (91-1003); James Rumler (91-1004); and Scott Nickerson (91-1005), Defendants-Appellants.

Nos. 91-1003 to 91-1005.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 27, 1992.

Decided May 28, 1992.

Gary Felder, Office of U.S. Atty., Detroit, Mich. (argued and briefed), for U.S.

David I. Goldstein, Ann Arbor, Mich. (argued and briefed), for Jerome A. Susskind.

James J. Rumler, pro se.

Melvin Houston, Detroit, Mich. (briefed), Leslie R. Seeligson, Seeligson & Jordan, Ann Arbor, Mich. (argued), for James J. Rumler.

Robert M. Morgan, Detroit, Mich. (argued and briefed), for Scott Nickerson.

Before: JONES and NELSON, Circuit Judges; and LIVELY, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Defendants, Jerome Susskind, James Rumler, and Scott Nickerson, appeal their convictions and sentences for conspiracy to obstruct and impede justice and other related counts. For the reasons that follow, we reverse.

I

The charges in the instant action arose out of a prior case. In that prior case ("Rumler I "), defendant Rumler was convicted of engaging in a conspiracy to import over 15,000 pounds of marijuana into the United States from July through September of 1986. The government contended that, as part of the conspiracy, Rumler and Jessie E. Harget, an alleged coconspirator, purchased a 1961 Aero Commander aircraft for approximately $59,000 in cash and used the aircraft to facilitate the importation of marijuana.

Susskind, as counsel for Rumler in Rumler I, contended during his opening statement that the airplane was used for legitimate purposes rather than for the charged conspiracy. Susskind also stated that Rumler had not obtained the money to purchase the airplane from Harget, but rather from Nickerson, who was a friend or business associate.

After hearing that opening statement, the prosecutor, Stanley Janice, decided to subpoena Nickerson to testify at the trial. The subpoena was served on November 28, 1988. It ordered Nickerson to bring with him all documents relating to the alleged loan to Rumler and all documents relating to his financial condition at the time of the alleged loan. At the time Nickerson was served with the subpoena, he advised the process server that there was not enough time to obtain the records, and that he would have to obtain them from his tax attorney.

After receiving the subpoena, Nickerson telephoned Susskind. Following their conversation, Susskind dictated to his secretary by telephone, some promissory notes relating to Rumler and Nickerson, which he needed prepared for the following day. Susskind's secretary, Karen Olds, typed the three requested documents the following day at Susskind's office. At the trial of the instant action, which the parties refer to as "Rumler II," Olds testified that she remembered back-dating at least one of the documents by placing the date of August 5 on it, although she was unsure of the year.

On November 29, 1988, Nickerson informed the Rumler I prosecutor that he was having difficulty obtaining the documents requested by the subpoena. The following day, however, Nickerson gave the prosecutor the following documents: a promissory note dated June 3, 1986, referencing an alleged loan of $60,000 from Nickerson to Rumler; a promissory note dated August 5, 1986, referencing an alleged loan of $25,000 from Nickerson to Rumler; a discount note dated December 5, 1986, referencing Nickerson's alleged interest in the subject airplane; and a single sheet of paper containing a copy of a 1986 IRS form 1099 and a copy of a 1984 W-2 form. When the prosecutor asked about the other requested documentation, Nickerson allegedly responded that the other records had been stolen from the trunk of an automobile that belonged to a friend named Bob. The prosecutor maintains that Nickerson said that he did not know Bob's last name or whereabouts and admitted that he had not filed a police report regarding the alleged theft of records.

On December 6, 1988, federal agents seized physical items of evidence from Susskind's law office in Jackson, Michigan. These items included a Sharp typewriter, a print wheel, and a correction ribbon. Each of these items, along with expert testimony concerning them, was later presented by the government at trial in order to prove the charges against Susskind. The government obtained these items pursuant to a "forthwith" grand jury subpoena duces tecum rather than through the use of a warrant. The forthwith subpoena was addressed to Susskind and "any and all Office Personnel," Br. of Susskind app., and commanded production of various typewriters, word processors, and related materials. On its face, the subpoena ordered the recipient to "[f]orthwith, [p]rovide all requested items immediately to S/A Timothy Bethel of the grand jury." Id. Four federal agents executed the subpoena and seized the evidence in this case: Timothy Bethel and William Carroll, U.S. Customs Service; Ed Fontanive, Internal Revenue Service; and Michael Yasenchak, Drug Enforcement Administration. Each agent was armed.

On October 19, 1989, the grand jury returned a fifteen-count indictment against the defendants, charging various counts of obstruction of justice and giving false information to a court. Counts one to fourteen related to allegations of falsified documentation and testimony in Rumler I. Count fifteen, against Susskind, involved his later attempt to obtain a new trial for Rumler by use of an affidavit that he allegedly knew to contain false information.

Susskind filed a pre-trial motion for an evidentiary hearing and to suppress evidence, with regard to the government's evidence attained through the use of the forthwith grand jury subpoena. On March 2, 1990, the district court held an evidentiary hearing, during which Susskind and the agents serving the subpoena testified as to the circumstances surrounding the service of the subpoena.

Special Agent Bethel testified that he entered Susskind's office in Jackson, Michigan and served upon Susskind the forthwith subpoena. After Susskind read the subpoena, he asked Bethel when he wanted the items. Bethel replied, "[I]t says on the subpoena forthwith, so I guess we'd like them now." Br. of United States at 51; Br. of Susskind at 13. The agents proceeded to seize the items listed on the subpoena. Susskind did not sign a form waiving his appearance before the grand jury, nor did he sign a consent to search form or its equivalent.

Susskind also testified at the evidentiary hearing. He stated that he had never seen a forthwith subpoena in his twenty-nine years as an attorney. Susskind further testified that he was not informed and did not believe that he had a right to refuse the command of the subpoena. In fact, Susskind thought that, if he refused to obey it, he could be held in criminal contempt. Finally, Susskind testified that, had he been presented with a consent to search form, he would not have consented.

On cross-examination, Susskind testified, when questioned as to the possibility of making a motion to quash the subpoena, that he did not believe there was any way for him to make such a motion at that time. Susskind reiterated his testimony that he thought it would be contemptuous behavior to disobey the command of the forthwith subpoena that he immediately provide the requested items to Agent Bethel.

On June 14, 1990, the district court denied Susskind's motion to suppress, and the case proceeded to trial. Rumler and Nickerson testified at trial. Both of them maintained that the two promissory notes and the discount note were the actual documentation created with regard to the alleged loan that Rumler received to purchase the plane. Furthermore, Nickerson denied ever telling the prosecutor the story about "Bob"; he testified that he told the prosecutor only that the records had been misplaced. The prosecution, on the other hand, offered expert examination of the promissory and discount notes and the testimony of the seller of the airplane to prove that Susskind, Rumler, and Nickerson were engaged in a scheme to hide the truth.

On September 10, 1990, the jury found the defendants guilty of all counts charged in the indictment. On December 13, 1991, Rumler was sentenced to a total term of imprisonment of 168 months, a $5,000 fine, and a total special assessment of $300. Nickerson was sentenced to a total term of imprisonment of 84 months, a $5,000 fine, and a total special assessment of $250. On December 14, 1991, Susskind was sentenced to a total term of imprisonment of 120 months, a $5,000 fine, and a total special assessment of $400. Defendants now bring this appeal.

II

All three defendants claim that the district court erred in refusing their request for discovery of certain documents. During Rumler I, Rumler wrote a letter to the United States Department of Justice, Public Integrity Section, complaining about the prosecutor's conduct during trial. The prosecutor wrote a letter in response. Janice also conducted the grand jury proceeding in the instant action. Defendants sought to discover both the prosecutor's letter in response to Rumler's complaint and a transcript of the prosecutor's statements during the grand jury proceeding. Our review of this issue involves statutory interpretation and is, accordingly, de novo. See Trustees for Mich. Carpenters Council Health & Welfare Fund v. C.J. Rogers, Inc. (In re Michigan Carpenters Council Health & Welfare Fund), 933 F.2d 376, 388 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 585, 116 L.Ed.2d 610 (1991).

The Jencks Act provides, in relevant part, as follows:

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject...