How Pittsburgh's former police chief Nate Harper ended up in hands of federal investigators
Personality, policy dictate court choice
March 31, 2013 4:00 AM
FBI agents leave Pittsburgh police headquarters on the North Side on Feb. 12 with cases full of documents as part of a federal investigation.
By Rich Lord Pittsburgh Post-Gazette
The case that brought Nate Harper into a federal courtroom as a defendant in an alleged theft conspiracy had its beginnings in a tip to a county prosecutor about a police bureau contract.
Officials at both the county and federal levels have said little about the origins of the ongoing investigation that led to the March 22 indictment of Pittsburgh's former police chief. Court records and public pronouncements, though, suggest that several considerations likely played into the decision to prosecute Mr. Harper in the U.S. Courthouse, rather than the Allegheny County Courthouse just a few blocks down Grant Street.
"The public corruption cases that the federal government might investigate are based upon a number of factors, including the nature of the target, that target's relationship with state and local authorities, the amount of money involved, the complexity of the investigation," said Fred Thieman, who was Western Pennsylvania's U.S. Attorney, and thus the region's lead federal prosecutor, from 1993 through 1997 and is now president of the Buhl Foundation. "A federal prosecution of a local police agency or its leaders is a fairly typical use of federal investigative resources."
The process of deciding what's a federal case versus a state court matter isn't guided as much by laws as by policies and personalities. There is vast overlap between federal and state criminal law, and everything from drugs to guns to fraud to child pornography can end up in either court.
The difference for defendants -- like Mr. Harper in federal court and state Supreme Court Justice Joan Orie Melvin, whose case has been heard in common pleas -- is often stark.
"The federal [sentencing] guidelines and mandatories are much harsher," said defense attorney William Difenderfer, who works in both the state and federal courts. "If they really want to wipe a guy out, if you will, they go federal."
That may not be the goal of prosecutors, now led by U.S. Attorney David Hickton, in regard to Mr. Harper. The former chief's attorneys have indicated that he's cooperating with investigators. The decision to go federal, though, does give prosecutors options for broadening the case that may not exist in the state judicial system.
Mary Beth Buchanan, who served as U.S. attorney from 2001 through 2009 and is now an ethics and reputational risk officer at the United Nations, said a federal grand jury "is extremely useful in conducting long-term fraud investigations."
How it started
The first public sign of an investigation into Pittsburgh police bureau matters came in a news report on WTAE-TV in 2010. In September 2011, the Post-Gazette reported that a grand jury probe of the city's contract with Esplen-based Alpha Outfitters appeared to be over, according to Marty Dietz, the attorney representing Art Bedway, 63, a Robinson entrepreneur.
Mr. Bedway is now accused in federal court of bribery, conspiracy and mail fraud in relation to the contract.
Mike Manko, the spokesman for District Attorney Stephen A. Zappala Jr., said last week that some time ago, a tip came into the Allegheny County district attorney's office about the contract between the city of Pittsburgh and Alpha Outfitters. Mr. Zappala's office launched an investigation, but a short time later it handed the investigation over to the U.S. Attorney's Office.
Mr. Manko cited an ongoing relationship with federal authorities and the offices' frequent discussion of cases as the reason for the handover.
There is precedent for such a move. The corruption investigation of former Coroner Cyril Wecht began with Mr. Zappala's office, and was then referred to Ms. Buchanan. Dr. Wecht was not convicted.
The FBI first interviewed Mr. Harper in May 2011, according to a court filing, then talked with him again in late 2012, including one or two conversations that occurred very close to Mr. Bedway's indictment. Mr. Bedway has pleaded not guilty to charges related to the accusation that he paid former city systems analyst Christine Kebr $6,000 in bribes. Ms. Kebr, 56, of Castle Shannon, has pleaded guilty to conspiracy, confirming that she helped to steer to Alpha Outfitters the contract to install and maintain radios in city police cars, and faces sentencing May 22.
The IRS interviewed Mr. Harper in December, and among the five counts against him are four for willful failure to file federal tax returns. That charge can only be prosecuted in federal court.
The FBI then talked with Mr. Harper once in February -- a week prior to his forced resignation -- and four times in March. Some former federal prosecutors have said that number of contacts so close to an indictment suggests either a desperate bid to stave off charges, or vigorous cooperation in an investigation.
Great power, limited resources
Federal prosecutors are allowed to take up a case any time there is probable cause to believe that someone has violated federal criminal law. As federal law has broadened over the decades, the jurisdiction of U.S. attorneys has extended to just about any area of criminal enterprise. But because law enforcement is primarily the job of the states, just roughly one in 20 criminal cases is prosecuted federally. So federal prosecutors have to pick their battles.
"Arguably, nothing's more important for the federal Department of Justice than this question," said Harry Litman, who was the U.S. attorney from 1998 through 2001, "especially in the modern day when almost any crime could go either way."
There's nothing unusual, Mr. Litman said, about prosecuting a ranking local official at the federal level.
"Public corruption is a bread and butter matter for the federal government," he said. "It can be pretty tricky for even the most aggressive and impartial district attorney, who is a local elected official, to really clean house in a public corruption matter."
Mr. Harper, when he headed the region's biggest police force, worked closely with Mr. Zappala. That alone wouldn't disqualify the district attorney from handling his investigation or prosecution.
"Steve Zappala, he's arrested police officers," said defense attorney Patrick J. Thomassey, who handles federal and state cases and worked previously as a county prosecutor. "I don't think that the fact that it's the police office really has much to do with it."
U.S. Attorney David J. Hickton's office would not talk about the case against Mr. Harper, nor about how it makes prosecutorial decisions in corruption cases, but Criminal Division Chief Steve Kaufman discussed generally how the region's federal law enforcement arm decides which matters to take up.
"It's possible that a state or local prosecutor will contact our office and ask us to consider taking over an investigation because they are uncomfortable with handling it for some reason," said Mr. Kaufman. "In most cases, if it's a handoff, then the understanding is we'll handle it going forward and there isn't necessarily continued collaboration" between local and federal prosecutors, though there are exceptions, he said.
If a public official commits extortion that affects interstate commerce, uses the mail or interstate communications to commit fraud, or takes from an entity that gets more than $10,000 in federal funds, federal prosecutors can take the case.
The indictment against Mr. Harper cites U.S. criminal code Section 666, on theft or bribery concerning federally funded programs, to justify the federal jurisdiction. Because the city gets roughly $5 million a year from the federal government, and Mr. Harper is accused of diverting for personal use $31,986 in city money -- well above the $5,000 floor set in the law -- the federal shoe fits.
Sometimes more controversial is the federal reach into drug and gun prosecutions.
"The police officers will decide, a former felon, maybe they've been after him, maybe they think he's a problem in the community," said Mr. Thomassey. "They'll set up an interview with [an assistant] U.S. attorney and try to get the feds to intervene."
Mr. Kaufman said that it's uncommon for a police officer to call a federal prosecutor directly, but federal interest is sometimes spurred by the work of joint local-state-federal task forces.
A felon caught with a gun might be facing two to four years if prosecuted on the state level, Mr. Thomassey said. "Right before trial the feds will come in and take that case, and it'll be 10 years."
Mr. Kaufman confirmed that federal prosecutors sometimes take a case because they think a stiff federal sentence would be in the interests of justice.
It's not easy to compare the potential sentences for Mr. Harper -- whose attorneys have said will plead guilty -- and suspended Justice Orie Melvin, who was found guilty of crimes related to the use of state resources in her campaigns.
State sentences in multicount convictions depend on whether the judge opts for concurrent or consecutive punishments, and whether he or she decides whether the circumstances are aggravated or mitigating. For Ms. Orie Melvin, whose resignation takes effect May 1, that could mean guidelines of probation, 3 to 12 months in prison, one to four years or even three to six years.
The maximum term for Mr. Harper would be nine years in prison, but his attorneys have said that they think sentencing guidelines will suggest 10 to 16 months, and they will ask for house arrest.
Secret thresholds, secret proceedings
A drug, gun or even fraud case usually has to meet certain locally set thresholds, called declination limits. If a fraud case isn't six figures or the weight of drugs in a bust is too low, federal prosecutors might not want to give it their attention.
"Every U.S. Attorney's Office has declination guidelines, including us," said Mr. Kaufman. "We don't make those public or reveal anything about them."
In any case, declination limits aren't hard and fast, said Mr. Kaufman.
He noted that Mr. Hickton has outlined priorities including civil rights, cyber crime, large drug and gun networks and public corruption. "There are cases to which our law enforcement tools are particularly well suited," said Mr. Kaufman.
One tool used in nearly every federal case, but in a relatively small minority of state court cases, is the grand jury. Unlike state grand juries that are usually called for a specific case, federal grand juries meet for 18 months and can take on a range of cases at once. That makes them well suited to handling probes that may take twists and turns before a final criminal charge emerges.
Witnesses can be ordered to come before the federal grand jury with all of the information and documentation they have that is relevant to a case. Though the Fifth Amendment applies, prosecutors have tools to get testimony even if it may be self-incriminating.
"If somebody refuses to testify before a [federal] grand jury, the U.S. attorney has authority to provide them with different levels of immunity," said Jerry A. Johnson, who was the region's top federal prosecutor from 1981 through 1989. With the approval of a judge and the Department of Justice in Washington, the U.S. attorney can grant what's called formal immunity, Mr. Johnson said. That means the testimony can't be used against the witness in any proceeding -- but it also obligates the witness to answer all questions truthfully.
"And if you don't comply with it, they can hold you in contempt," and imprison the witness for the duration of the grand jury, he said.
While witnesses in a state grand jury proceeding can have an attorney sit beside them, in the federal system the attorney waits outside.
"You can be much more secretive in federal court" than in state court, said attorney Jerry S. McDevitt, who handled Dr. Wecht's defense. He said that secrecy, the 18-month duration and vast federal resources create an environment in which a probe can grow.
"It's small for now," Mr. McDevitt said of the investigation that led to Mr. Harper's indictment, adding that Mr. Hickton has "been very, very careful to say things are still going on."