Steelers subpoena shows long reach of grand jury over Pittsburgh's mayor
September 22, 2013 8:00 AM
Darrell Sapp / Post-Gazette
By Rich Lord / Pittsburgh Post-Gazette
There are few defenses that can stop a federal grand jury subpoena.
That's why when the Pittsburgh Steelers recently received a request for information on Mayor Luke Ravenstahl's payment for tickets, their lawyers scoured years of records and turned over cancelled checks from the mayor covering the costs of the coveted seats.
The Steelers declined to provide details this month.
"It's an ongoing investigation, and we won't be commenting on it," said Steelers spokesman Burt Lauten, when asked for comment on the federal document demand and the team's response.
Experts said that if prosecutors and the grand jury they run are interested in the mayor's spending, there is no way he, or any business he has used, can stop them from scouring available records.
"In terms of trying to fight a subpoena, to quash it, you are just so very rarely going to see that granted," said Bruce Antkowiak, a former federal prosecutor and now law professor at Saint Vincent College in Latrobe. "We have come to accept the breadth of the grand jury power and jurisdiction to have a wide range of investigative authority."
That power often frustrates probe targets and their attorneys.
"Federal grand juries are the most abused prosecutorial tool that there is because there are no real restraints on them," said defense attorney Jerry S. McDevitt, who successfully defended former Allegheny County coroner Cyril Wecht against a federal grand jury indictment. "There is no judge present. There is no limit on what they can do. They are allowed to drag any rumor and innuendo they want in."
Usually, the grand jury's power is balanced, somewhat, by the secrecy of the process. Private materials seen by the panel of up to 23 members won't be leaked or discussed outside of its soundproof suite. Federal prosecutors and investigators are scrupulous in their refusal to talk about grand jury probes.
In the case of the probe of city dealings, reporters have watched as witnesses come and go from the U.S. Courthouse, and have approached people who they believe have received subpoenas.
"We are curiously watching while they explore his personal life, apparently," said Charles Porter Jr., who is the mayor's private attorney, earlier this month. He declined to elaborate Friday.
State Sen. Jim Ferlo, D-Highland Park, has questioned the probe's focus.
"I still think it is a fishing expedition, but I don't know what their expedition is about," Mr. Ferlo said on Thursday. He added that he wanted to "respect the private grand jury process."
At least two female acquaintances of the mayor -- Ashley Barna and Ashlee Olivo -- have testified before the grand jury.
So have the three men who ensured his personal security. One of them, former city Detective Fred Crawford Jr., told the grand jury about the mayor's use of his nightly bodyguard as "a designated driver ... while he went out to bars," according to Mr. Crawford's attorney, Robert Stewart.
The secretary who handled Mr. Ravenstahl's schedule has also testified, as have Chief of Staff Yarone Zober and former Stadium Authority board chair Debbie Lestitian.
In May, prosecutors obtained documents reflecting a contract and payments for renovations to his Fineview home, Mr. Porter confirmed.
Federal agencies now have cancelled checks for Steelers tickets, the Post-Gazette has learned.
The mayor has made no secret of his Steelers mania. In January 2009, he filed faux paperwork to change his last name to "Steelerstahl" in the run-up to a playoff battle with the Baltimore Ravens.
The Steelers went to the Super Bowl that February, and that May the mayor's campaign committee paid the team $5,732 to cover the costs of the trip. Two years later, the mayor's campaign paid the team $5,066 for Super Bowl trip expenses, and footed the $5,970 bill for an Embassy Suites room.
The administration has said that attending the Super Bowl when the Steelers are in the game is both a governmental and political function, and that it is better for taxpayers if the campaign foots the bill. The mayor's spokeswomen have maintained that he has abided by all rules restricting public officials' receipt of gifts, including tickets.
A city ethics code that was meant to ensure public disclosure of gifts, including tickets, worth more than $100, has fallen into abeyance, the Post-Gazette will report in a story Monday.
Asked if the Pirates had been approached by the IRS, the FBI or the federal prosecutors, team spokesman Brian Warecki said, "To the best of my knowledge, we have not been approached by any of those parties."
Mr. Warecki said it's the organization's policy that "any and all public officials need to pay for any benefits/tickets they receive."
He said that if approached, the team "obviously would cooperate as much as we possibly could."
It is not certain that prosecutors have probable cause to believe that the mayor's acquisition of Steelers tickets was connected to wrongdoing.
"A grand jury basically can subpoena almost anyone," said David Harris, a University of Pittsburgh law professor who has authored books about evidentiary rules. "They don't need to feel that this will give them probable cause that there's evidence of a crime, or anything like that."
If a police officer wants to compel you to stop and answer questions, they need to have reasonable suspicion that you've been involved in a crime. A federal probe, by contrast, can reach into your finances and personal life without reaching any such threshold.
It typically starts with an agent of the FBI or another investigative agency receiving a tip. The agency can then start asking questions and using online or public records to determine whether there's any evidence of a crime, according to former federal prosecutors.
If the agency concludes that a crime may have been committed, it brings the matter to the U.S. attorney -- locally, David Hickton.
In the case of a public corruption allegation, Department of Justice rules require that the U.S. attorney get input from Washington before taking certain steps.
Before starting a grand jury probe to look at alleged purchase or sale of public office, the prosecutor needs to consult with the department's Public Integrity Section, Criminal Division. That division must also be in the loop on all probes of officials covered by the Ethics in Government Act -- which applies to high-level federal officials -- and on cases focused on violations of federal or state campaign finance laws, patronage or electoral corruption.
Once they've overleaped those hurdles, federal prosecutors can provide the grand jury with a broad outline of their theory, and then start issuing subpoenas. The jurors don't vote on subpoenas, and typically find out about them when the prosecutor reads off a log of materials received in response. No judicial approval is required.
Subpoenas can demand documents or compel presence before the grand jury. They are often directed to the target of the probe, their associates, potential witnesses and businesses with which they've had dealings, including their bank. There are complex limits on subpoenas to phone companies.
A recipient can file a motion to quash a subpoena, which would likely be sealed and decided by a judge without public disclosure. Then prosecutors have to justify a challenged subpoena with "a very simple affidavit" saying that the information sought is pertinent to the investigation, but typically not providing details, said Mr. Antkowiak.
Unless the subpoena targets communications between an attorney and client, or between spouses, or is so broad that complying would be a crushing burden, a judge isn't likely to quash it, experts said.
This month the grand jury subpoenaed the city's Urban Redevelopment Authority. As of Friday, that agency had not finished compiling the requested records, and would not disclose the nature of the records sought.
Warrants to search a premises, seize a computer or tap a phone must be backed by agents' affidavits, and signed by a magistrate judge. At that point, the judge has to agree that there is probable cause that a federal crime has been committed and that evidence can be found through the search of the location, seizure or tap.
Most judges will give investigators "a certain amount of leeway," said Mr. Antkowiak, as long as they can show that they're not on "a complete fishing expedition."
That leeway, combined with the unfettered power to subpoena, ask questions under oath and even grant immunity, makes the federal grand jury so powerful that some have called it a fourth branch of government.
"They are empowered to investigate on suspicion, whim, whatever," said Mr. McDevitt, the defense attorney.
"The reason for that is the sophistication of certain types of criminal activity," said Mr. Antkowiak, "and the degree to which that type of criminal activity would otherwise be very, very difficult to investigate, without the authority to gather records, without the authority to gather testimony from people."