                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"USA v. Nissenbaum" (2002). 2002 Decisions. Paper 691.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/691


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                                                                      NOT PRECEDENTIAL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

                                                     2
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).

                                                      3
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.




                                                     4
TO THE CLERK:

     Please file the foregoing Opinion.




                                          By the Court,




                                          /s/ Jane R. Roth
                                              Circuit Judge




                                             5
