____________________________________________________________________________ UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________________________________ Docket Nos. 15-1260, 15-1336 ___________________________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. CHAKA FATTAH, JR., Defendant-Appellant. ____________________________________ Appeal From the United States District Court For the Eastern District of Pennsylvania Case No. 2-14-cr-00409-001 The Honorable Judge Harvey Bartle, III. ____________________________________ OPENING BRIEF FOR APPELLANT CHAKA FATTAH, JR. ____________________________________ Chaka Fattah, Jr., Pro Se 5783 Nassau Road PHILA. PA, 19131 Telephone: 215-301-8125 E-mail: [email protected]Attorney for Defendant-Appellant Chaka Fattah, Jr. Dated: March 24, 2015 ____________________________________________________________________________ Case: 15-1260 Document: 003111912138 Page: 1 Date Filed: 03/24/2015
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A. Motion to dismiss, filed 12/10/14 …………………………………… DDE 34
B. Response in opposition, filed 12/24/14 …………………………..…. DDE 53 C. Reply brief in support, filed 12/27/14 ………………………………. DDE 60 D. District Court Order and Memorandum, filed 1/22/15 ………..… DDE 98, 99
A. Motion to dismiss, filed 12/30/14 …………………………………… DDE 63 B. Response in opposition, filed 1/12/15 .…….………………………… DDE 88 C. Reply brief in support, filed 1/20/15 ………………………..………. DDE 96 D. District Court Order, filed 1/23/15 ………………………………… DDE 103
E. Motion to dismiss, filed 1/11/15 …….….…………………………… DDE 85 F. Response in opposition, filed 1/22/15 ……………………………… DDE 100 G. District Court Order, filed 2/2/15 ………………………………….. DDE 119
H. Motion to compel, filed 1/1/15 ………………………………..…….. DDE 69 I. Response in opposition, filed 1/16/15 ……………..………………… DDE 94 J. Reply brief in support, filed 1/18/15 ………………………………… DDE 95
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TABLE OF AUTHORITIES (continued)
K. District Court Order, filed 1/21/15 …………………………………… DDE 97
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INTRODUCTION
An American Citizen’s constitutional rights were violated in the
government’s zeal to chase headlines. Chaka Fattah, Jr., a small business owner
and management consultant, is the appellant in this case. On February 29, 2012,
nearly two-and-a-half years before the charges were brought in this matter, a
significant amount of negative press coverage was garnered because the
government notified media outlets that plainclothes FBI and IRS agents were going
to execute a search warrant and serve grand jury subpoenas at Mr. Fattah’s
residence. The agents arrived before 7:00 a.m., and Mr. Fattah’s address was not
public information. The only party with the information given to the media
concerning the timing, location and subject matter of the FBI and IRS’s activities,
was the government. Mr. Fattah was, of course, not given advance notice. Pictures
of the federal agents, entering Mr. Fattah’s apartment building before 7:00 a.m. on
a cold weekday morning, appeared in news stories portraying Mr. Fattah several
hours later. This led to additional prominent news stories which further confirmed
that Mr. Fattah was under criminal investigation by the IRS and FBI. This
reputational harm, with other tangible interests such as employment and operating
a business were impacted.
This occurred in violation of Mr. Fattah’s right to due process, that is without
notice and a hearing. See, e.g., Zinermon v. Burch, 494 U.S. 113, 127 (1990). Mr.
Fattah immediately thereafter lost a contract valued at $144,000 per year, plus
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significant bonus opportunities, and suffered devastating damage to his finances,
reputation, employment and business prospects. Mr. Fattah also lost his apartment
within months of the media disclosure, due to the resulting impact on his finances.
As one Philadelphia Inquirer story said “[Chaka] Fattah Jr.’s image crumbled for
good on Wednesday, when agents raided the Ritz-Carlton apartment and [his]
space at a law office, seizing a computer and records. ” The effect the media 1
disclosures had on Mr. Fattah’s reputation, employment, and business prospects
continues to this day. This has caused Mr. Fattah to be unable to hire his counsel of
choice and has severely restricted his ability to mount a defense under the Sixth
Amendment. Without the interference by the government, in the form of the media
disclosure, Mr. Fattah would have earned more than $432,000 ($144,000 per year)
prior to the trial date. Those funds could have been used to pay for the counsel of
choice, and to hire forensic accountants, expert witnesses and other professionals
to assist with trial preparation and defense investigation.
This Court has recognized that “[i]nterfering with a defendant’s efforts to
secure counsel and thereby forcing on him representation by an undesired court-
appointed attorney may amount to denial of a constitutional right.” United States v.
Rankin, 779 F.2d 956, 958 (3d Cir. 1986); United States v. Romano, 849 F.2d 812,
at 76 (3d Cir. 1988). This Court has recognized that “the most important decision a
Behind the facade, troubles rose for Fattah son, The Philadelphia Inquirer (Mar. 1
I certify that on March 24, 2015, the foregoing Opening Brief and any
accompanying document was served upon counsel for the appellee, the United
States, who are Registered Users, via the Court’s the CM/ECF system, addressed
as follows:
Paul L. Gray, Esq. Eric L. Gibson, Esq. Robert A. Zauzmer, Esq. Assistant United States Attorneys 615 Chestnut Street - 12th Floor Philadelphia, PA 19106
I further certify that the foregoing Opening Brief was served upon The
Honorable Harvey Bartle, III. pursuant to Fed. R. App. P. 21(a) directing that “[t]he
party must also provide a copy to the trial-court judge.” The copy was delivered
via hand delivery to the Clerk’s Office of the district court on March 24, 2015
addressed as follows:
The Honorable Harvey Bartle, III Judge, United States District Court 16614 United States Courthouse 601 Market Street Philadelphia, PA 19106-1752
/s/ Chaka Fattah, Jr. CHAKA FATTAH JR. Pro Se for Appellant 5783 Nassau Road Philadelphia, PA 19131 Phone: 215-301-8125 Email: [email protected]
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v. CHAKA FATTAH, JR.
: : : : :
CRIMINAL ACTION
NO. 14-409
ORDER
AND NOW, this 22nd day of January, 2015, for the reasons
set forth in the accompanying Memorandum, it is hereby ORDERED that
the motion of defendant Chaka Fattah, Jr. to “Quash the Indictment
with Prejudice for Perjury Before the Grand Jury and Due to Repeated
and Intentional Government Misconduct” (Doc. # 34) is DENIED.
BY THE COURT:
/s/ Harvey Bartle III J.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v. CHAKA FATTAH, JR.
: : : : :
CRIMINAL ACTION
NO. 14-409
MEMORANDUM
Bartle, J. January 22, 2015
Before the court is the motion of defendant Chaka Fattah,
Jr. (“Fattah”) to dismiss the indictment, improperly styled as a
motion to quash.1
Fattah has been charged with twenty-three counts of fraud,
theft, and tax-related offenses. According to the indictment,
between approximately 2005 and 2012, Fattah held himself out as the
founder and owner of a number of business entities. He allegedly
used those entities as a front to obtain business lines of credit
that he then improperly used for personal expenses. After
defaulting on several of these loans, some of which were insured by
the U.S. Small Business Administration (“SBA”), the indictment
charges that Fattah submitted materially false statements to that
agency and others for the purpose of settling some of the debts. He
is additionally charged with bank fraud, making false statements as
1 We treat Fattah’s motion as one for dismissal of the indictment under Rule 12 of the Federal Rules of Criminal Procedure. The adoption of Rule 12 “abolishe[d] ... motions to quash. A motion to dismiss or for other appropriate relief is substituted for the purpose of raising all defenses and objections heretofore interposed.” Advisory Committee’s Note.
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to a personal line of credit, several tax offenses, and federal
program theft and wire fraud arising out of a scheme to defraud the
School District of Philadelphia while employed as a contractor
operating a school for students with disciplinary issues.
Fattah now seeks to dismiss the indictment on a myriad of
grounds. Specifically, he asserts that the Government submitted
perjured testimony to the grand jury. He also contends that a
search warrant executed in February 2012 was obtained through
misrepresentations to the magistrate judge and was in any event
either impermissibly general or overbroad. In addition, Fattah
takes issue with several of the Government’s investigatory tactics,
including the manner in which he was interviewed by agents of the
SBA and the Federal Bureau of Investigation (“FBI”), the review of
emails between him and his attorney, and the purported violation by
the Government of grand jury secrecy.
I.
We begin with Fattah’s position that the indictment must
be dismissed because numerous witnesses gave perjured testimony
which the Government deliberately offered to the grand jury. He
also contends that false representations by the Government to the
court in a separate but related criminal matter are further evidence
of pervasive prosecutorial misconduct in these proceedings against
him.
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Dismissal of an indictment is a “drastic remedy.” United
States v. Bansal, 663 F.3d 634, 660 (3d Cir. 2011) (quoting United
States v. Morrison, 449 U.S. 361, 365 n.2 (1981)). Ordinarily, a
court may dismiss an indictment only if there is a showing that the
defendant has been prejudiced by an irregularity in the grand jury
proceedings. Bank of Nova Scotia v. United States, 487 U.S. 250,
256 (1988). The indictment is subject to dismissal “only ‘if it is
established that the violation substantially influenced the grand
jury’s decision to indict,’ or if there is ‘grave doubt’ that the
decision to indict was free from the substantial influence of such
violations.” Id. (quoting United States v. Mechanik, 475 U.S. 66,
78 (1986) (O’Connor, J., concurring)).
However, in certain circumstances in which the error is
“fundamental,” no showing of prejudice is required. Id. at 256-57.
Fundamental errors “are ones in which the structural protections of
the grand jury have been so compromised as to render the proceedings
fundamentally unfair, allowing the presumption of prejudice.” Id.
at 257. The Supreme Court has reached such a conclusion in cases
where the grand jurors were selected on the basis of race or gender.
Id. On the other hand, our Court of Appeals has held that “the
presentation of ... allegedly perjured testimony to the grand jury
does not fall into the narrow category of cases in which dismissal
of charges without a showing of prejudice is warranted.” United
States v. Soberon, 929 F.2d 935, 940 (3d Cir. 1991).
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In this case, Fattah first attacks the grand jury
testimony of Matthew Amato. Amato was a friend of Fattah during the
relevant time period and was involved with one or more of the
business entities that the defendant is alleged to have used to
obtain lines of credit. According to Fattah, Amato testified to a
number of misleading facts, including the level of income that
Fattah-owned businesses had earned, the amount of money he and
Fattah spent on various business and personal expenses, the
circumstances surrounding the sale of a car, and whether a certain
business entity was in existence in 2005, among many other things.
In challenging Amato’s grand jury testimony, Fattah relies
mainly on his own version of events. He also questions the veracity
of this witness’s testimony on the basis of Amato’s prior statements
in his personal bankruptcy proceeding and in the investigation which
led to the present indictment.
Our Court of Appeals has made it clear that a motion to
dismiss is not “a permissible vehicle for addressing the sufficiency
of the government’s evidence.” United States v. Bergrin, 650 F.3d
257, 265 (3d Cir. 2011) (quoting United States v. DeLaurentis, 230
F.3d 659, 660–61 (3d Cir. 2000)). As the court explained,
“‘Evidentiary questions’ -- such as credibility determinations and
the weighing of proof -- ‘should not be determined at th[is]
stage.’” Id. (quoting United States v. Gallagher, 602 F.2d 1139,
1142 (3d Cir. 1979)) (alterations in original). The accuracy of
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Amato’s testimony vis-à-vis statements he may have made in the past
is a question for the jury to decide at trial. Simply because
Amato’s testimony was purportedly inconsistent with his prior
statements does not mean that the Government suborned perjury. Nor
do these supposed inconsistencies engender any “grave doubt” that
the grand jury’s decision to indict was free from error. Bank of
Nova Scotia, 487 U.S. at 256.
Fattah next contests the grand jury testimony of a certain
FBI agent. The agent stated, among other things, that Fattah’s 2004
tax return was fictitious and designed only to establish the
existence of Fattah’s business on paper so that he could then apply
for business lines of credit. He also repeated many of Amato’s
statements that Fattah believes are false. Here again, Fattah
relies principally upon his own version of the story to call into
question the agent’s testimony. In the absence any reasonable basis
to conclude that the agent intentionally misled the grand jury, the
weight and credibility of the agent’s testimony are determinations
reserved for the trial jury.
Fattah challenges the testimony of other grand jury
witnesses as well. They include a former loan officer for one of
the banks that allegedly lent him money and an attorney for the
School District of Philadelphia. Fattah maintains, for example,
that the loan officer lied to the grand jury when he explained that
a loan application document did not “reveal the existence of any
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loans over $15,000 to credit cards” when it in fact reflected
$15,000 in such debt. Also included in Fattah’s motion is a lengthy
explication of the School District of Philadelphia’s methods for
overseeing its alternative education contractors, which differs in
certain respects from the testimony of the school district attorney.
Fattah’s position simply rests on a contrary recollection
of the facts and on contrary inferences that may be drawn from the
documentary evidence. Again this is insufficient to support a
conclusion that the Government suborned perjury that was prejudicial
to the defendant. Fattah has failed to establish any grave doubt in
the soundness of the grand jury proceedings on the basis of perjury.2
Bank of Nova Scotia, 487 U.S. at 256. The motion of Fattah will be
denied as it relates to perjury before the grand jury.
II.
We next address Fattah’s challenges to a search warrant
executed at Fattah’s home and business addresses on February 29,
2012. According to Fattah, “[t]he search warrant affidavit contains
false statements, material omissions and misleading statements” that
2 In addition to grand jury witnesses, Fattah also takes issue with a number of statements the Government made in connection with Amato’s recent guilty plea in his own criminal prosecution. Once again, Fattah predominantly rests his arguments on his own version of the facts. He has cited no authority to suggest that the Government’s statements in one criminal case can, without more, serve as the basis for dismissing an indictment in another action when the statements do nothing to call into question the record before the grand jury. Fattah’s position is without merit.
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amount to prosecutorial misconduct. He also argues that the warrant
was an impermissible general warrant or, in the alternative, that it
was overbroad and thus in need of redaction.
According to Fattah, the search warrant affidavit failed
to inform the magistrate judge of a number of key facts about the
ownership and sale of the car referenced in Amato’s grand jury
testimony. It allegedly did not explain, among other things, that
the car had been registered in Amato’s name rather than Fattah’s.
The agent submitting the warrant also purportedly made false
statements mischaracterizing the financial records that he had
reviewed. In the aggregate, Fattah urges that these and other
missteps show that the Government made intentional, material
misrepresentations to the magistrate judge that undermined the
validity of the warrant.
Our Court of Appeals has explained that “a defendant may
not challenge an indictment on the ground that illegally obtained
evidence was presented to the grand jury.” United States v. Kenny,
and other written instruments concerning the Communist Party of
Texas,’ ‘illegally obtained films,’ and ‘stolen property.’” Id.
(quoting Christine, 687 F.3d at 753) (some quotation marks omitted).
Christine reasoned that the complexity of the crimes for
which there is probable cause informs the level of specificity
required in a search warrant:
[T]he use of generic classifications in a warrant is acceptable when a more precise description is not feasible.... Likewise, in searches for papers, it is certain that some innocuous documents will be at least cursorily perused in order to determine whether they are among those papers to be seized. But no tenet of the Fourth Amendment prohibits a search merely because it cannot be performed with surgical precision. Nor does the Fourth Amendment prohibit seizure of an item, such as a single ledger, merely because it happens to contain other information not covered by the terms of the warrant. This flexibility is especially appropriate in cases involving complex schemes spanning many years that can be uncovered only by exacting scrutiny of intricate financial records.
Christine, 687 F.2d at 760 (emphasis added) (citations omitted).
The Supreme Court has likewise observed that “[t]he complexity of an
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illegal scheme may not be used as a shield to avoid detection when
the State has demonstrated probable cause to believe that a crime
has been committed and probable cause to believe that evidence of
this crime is in the suspect’s possession.” Andresen v. Maryland,
427 U.S. 463, 480 n.10 (1976).
In this case, the search warrant affidavit gave a lengthy
account of the crimes for which the Government sought to establish
probable cause, including five years of a wide range of alleged
financial improprieties. The search warrant sought authorization to
seize, among other things, “[a]ll financial records” at Fattah’s
residence and business address, “[a]ll checks paid to employees for
wages,” “[a]ll records of cash payments made to entities and
individuals,” “[a]ll records of money and any other assets sent
numbers of business associates ... and other individuals or
businesses with whom a financial relationship exists,” “[a]ll tax
records,” “[a]ll corporate and/or business bookkeeping records,”
“[a]ll financial statements,” and “electronic equipment” used to
store the information listed above.
These categories of items might initially appear to be
similar to those prohibited general warrants described in Christine.
However, the Government here sought a search warrant relating to
suspected financial crimes running from 2005 to the date of the
warrant application in February 2012. The investigation involved
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allegations of false statements concerning several different lines
of credit, the mischaracterization of personal purchases as business
expenses, income tax violations that implicated “income [Fattah]
obtained from 2005 to the present,” and other finance-related
misrepresentations, all thought to have been facilitated by an
intricate web of bank transfers between accounts held in the name of
Fattah’s businesses and in his own name.
This is the sort of “complex scheme[] spanning many years”
for which our Court of Appeals prescribed flexibility in Christine.
Christine, 687 F.2d at 760. Fattah may not use the complexity of
his alleged crimes as a “shield to avoid detection.” Andresen, 427
U.S. at 480 n.10. The categories of information authorized to be
searched or seized did not permit law enforcement to go on an
unrestrained search, and they were consistent with the scope of
probable cause established by the Government in the search warrant
affidavit. We conclude that the warrant was not impermissibly
general.
Fattah argues in the alternative that the warrant should
be redacted as overbroad. See Ninety-Two Thousand Four Hundred
Twenty-Two Dollars, 307 F.3d at 149. He claims that the warrant
“seized 7 years of documents, without any particularity or
separating documents or computer equipment necessary to operate the
business.” Even assuming that Fattah is correct that the warrant is
overbroad, he does not propose any redactions. Nor does he identify
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any specific items of evidence he seeks to exclude from admission at
trial. As a result, even if his present motion were to be
considered a motion to suppress, it must be denied.
For these reasons, we conclude that the search warrant
executed on February 29, 2012 was free from prosecutorial
misconduct. Nor was it a general or overly broad warrant requiring
suppression.
III.
Fattah also challenges the manner in which the SBA and FBI
undertook their investigations of him. Specifically, Fattah urges
that secretly recorded interviews between him and an SBA agent and
later conversations involving him, officials from the School
District of Philadelphia, and an undercover FBI agent were improper.
According to Fattah, these investigation practices violated his
rights under Miranda v. Arizona, 384 U.S. 436 (1966), were
involuntary as a matter of due process, and departed from the proper
administration of justice through the improper commingling of
separate investigations. See United States v. Scrushy, 366 F. Supp.
2d 1134 (N.D. Ala. 2005).
We first address Fattah’s argument that the indictment
should be dismissed because the Government violated Miranda and the
Fourteenth Amendment’s prohibition on the use of involuntary
statements. As noted above, an indictment may not be dismissed on
the ground that the Government obtained evidence illegally. United
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States v. Kenny, 462 F.2d 1205, 1213 (3d Cir.), cert. denied, 409
U.S. 914 (1972). As such Fattah’s reliance on Miranda and the Due
Process Clause as it relates to involuntary statements is misplaced.
However, even if we interpret his motion as a motion to
suppress on these grounds, Fattah’s position that evidence was
obtained through unconstitutional means is untenable. The Supreme
Court held in Miranda that the Government may not introduce
statements of a person arising out of a custodial interrogation
unless it takes certain steps to safeguard that person’s
constitutional rights. Miranda, 384 U.S. at 444-45. A defendant is
in “custody” for Miranda purposes when a reasonable person in his or
her position would feel that “he or she was not at liberty to
terminate the interrogation and leave.” Thompson v. Keohane, 516
U.S. 99, 112 (1995). In this case, Fattah makes no argument that
his liberty was constrained when he met with agents of the
Government. Indeed, he presents no facts from which to conclude
that a reasonable person in Fattah’s shoes would have felt unable to
terminate these encounters. He has therefore failed to establish
that any interrogation was custodial. Miranda is not implicated.
He also contends that his statements to an SBA agent and
to an undercover FBI agent were not voluntary. Under the Due
Process Clause of the Fourteenth Amendment, incriminating statements
may not be used when they are involuntary. Lam v. Kelchner, 304
F.3d 256, 264 (3d Cir. 2002). A statement is involuntary when,
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under the totality of the circumstances, “the suspect’s ‘will was
overborne in such a way as to render his confession the product of
coercion.’” Id. (quoting Arizona v. Fulminante, 499 U.S. 279, 288
(1991)). Relevant factors include any level of police coercion, the
“length of the interrogation, its location, its continuity, the
defendant’s maturity, education, physical condition, and mental
health.” Id. (quoting Withrow v. Williams, 507 U.S. 680, 693
(1993)). The Government must prove voluntariness by a preponderance
of the evidence. United States v. Jacobs, 431 F.3d 99, 108 (3d Cir.
2005).
Even assuming the truth of Fattah’s description of what
occurred, it does not serve as a credible basis to conclude that his
will was overborne. In the main, Fattah takes issue with the manner
in which an undercover FBI agent deceived him by posing as an
official of the School District of Philadelphia at several meetings
at the offices of the school district.3 However, undercover
investigations do not violate the Constitution per se. “A necessary
predicate to a finding of involuntariness is coercive police
activity.” Id. Deception, without more, is not coercion. Fattah
additionally contends that school district representatives who were
also in the room with the FBI agent stated that the conversation
would be kept confidential and that they were evaluating whether to
3 He gives no argument of any kind with respect to the voluntariness of his conversations with an SBA agent.
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give Fattah a monetary reward. There is no evidence that Fattah was
reluctant to speak at these meetings or that his will was otherwise
overborne by these promises. Lam, 304 F.3d at 264. The defendant’s
statements made at a school district office to an undercover FBI
agent were voluntary. Even if his motion were interpreted as one to
suppress evidence, it is without merit.
Fattah also submits that the fruits of simultaneous
investigations of him by the SBA, FBI, and School District of
Philadelphia must be suppressed because they were “inextricably
intertwined.” He relies on United States v. Scrushy, 366 F. Supp.
2d 1134 (N.D. Ala. 2005), to make this argument. The defendant in
Scrushy was to be deposed in Atlanta, Georgia by the U.S. Securities
and Exchange Commission (“SEC”) as part of a civil investigation
into accounting irregularities at the defendant’s company. Before
the deposition took place, the U.S. Attorney’s office in Birmingham,
Alabama received information that a billion-dollar accounting fraud
was in fact taking place at the firm. The U.S. Attorney’s office
prevailed upon the SEC to alter its questioning in significant ways
and to change the location of the deposition from Atlanta to
Birmingham for purposes of venue over any future perjury charges.
During the deposition, the SEC questioner did not advise the
defendant of the existence of any criminal investigation.
The district court held that this commandeering of the
civil deposition in service of an undisclosed criminal investigation
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was a departure from the “proper administration of criminal
justice.” Id. at 1137. In doing so the court emphasized the danger
to a defendant of attending an ostensibly civil deposition when the
Government is secretly investigating criminal charges at the same
time. Id. at 1139. Thus, the court agreed that there was a
“special danger that the government can effectively undermine rights
that would exist in a criminal investigation by concluding a de
facto criminal investigation using nominally civil means.” Id. at
1140 (quoting Sec. & Exch. Comm’n v. Healthsouth Corp., 261 F. Supp.
2d 1298, 1326 (N.D. Ala. 2003)). Exercising its supervisory
authority over the conduct of federal agencies, the court suppressed
the testimony of the SEC official who conducted the deposition. Id.
at 1137, 1140.
In the present matter, Fattah maintains that the reasoning
in Scrushy requires the suppression of Fattah’s conversations with
an SBA agent. In support of this argument, Fattah urges that “the
SBA was not actually conducting a civil investigation into the three
SBA guaranteed loans issued to Fattah... but was working with the
FBI to get Fattah to make recorded statements that could be used
against him at this current criminal trial.” The Government agrees
that no independent SBA civil investigation existed at the time of
the conversation at issue. The reasoning in Scrushy is inapplicable
to this case where there was no civil proceeding that was
commandeered in furtherance of a criminal investigation.
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Fattah also seeks the suppression under Scrushy of his
interviews with an undercover FBI agent and school district
representatives previously discussed above. The conversations
should be suppressed, according to Fattah, because the Government
coopted a civil investigation by the School District of Philadelphia
in furtherance of its own criminal investigation. The Government
responds that there was no separate inquiry by the school district
which was simply cooperating with federal investigators.
Assuming the truth of Fattah’s assertion that the school
district had undertaken a civil investigation, we do not agree that
the federal Government can be held responsible for the actions of
the School District of Philadelphia, a local agency. It was key to
the reasoning in Scrushy that the SEC and U.S. Attorney’s office are
both organs of the federal Government. Scrushy, 366 F. Supp. 2d at
1138-39. As the court explained, the taking of a civil deposition
could be imputed to law enforcement because the SEC official who
questioned the defendant “is employed by the United States
Government -- the same United States Government whose Department of
Justice is prosecuting this case.” Id. In the present matter the
Government cannot be said to have “manipulated simultaneous criminal
and civil proceedings” when it had control over only one. Fattah’s
reliance on Scrushy is unavailing.
For these reasons, we conclude that the Government’s
investigation was free from the errors that Fattah has asserted.
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The interviews of him by an SBA agent and FBI agent did not violate
Miranda or the Due Process Clause. Nor were they a departure from
the proper administration of criminal justice as outlined in
Scrushy.
IV.
We next turn to Fattah’s contention that the Government
improperly reviewed email communications between him and his lawyer.
Seeking no particular relief with respect to this activity by the
Government, he “submits that this is just another issue that shows
the governments [sic] conduct in this matter” because the action
“deliberately interfered with the attorney-client privilege.” We
note that Fattah has identified no specific email communications
that may fall under the umbrella of the attorney-client privilege.
The burden is on the party seeking the protection of the privilege
to establish that it exists. In re Grand Jury, 705 F.3d 133, 160
(3d Cir. 2012). Fattah having made no attempt to meet this burden,
his position that the Government committed misconduct in its review
of his email communications based on the violations of the attorney-
client privilege does not carry the day. Nor does it inject any
grave doubt into the validity of the grand jury proceedings. Bank
of Nova Scotia v. United States, 487 U.S. 250, 256 (1988).
V.
Finally, we still have before us Fattah’s position that
the Government committed misconduct by leaking information related
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to the grand jury to the media. He also maintains that a
conversation between the Assistant U.S. Attorney and an attorney for
Fattah’s father inappropriately included grand jury information.
Fattah asserts that this is additional prosecutorial misconduct
warranting dismissal of the indictment. We are also asked to hold a
show cause hearing to determine whether the Government should be
held in contempt.
Rule 6(e)(2) of the Federal Rules of Criminal Procedure
prohibits “an attorney for the government” from “disclos[ing] a
matter occurring before the grand jury.” The ordinary remedy for
such a disclosure is a finding of contempt. Fed. R. Crim. P.
6(e)(7); see Finn v. Schiller, 72 F.3d 1182, 1189 (4th Cir. 1996).
To make a prima facie showing of a Rule 6 violation sufficient to
institute contempt proceedings, a complainant must show that
“information was knowingly disclosed about ‘matters occurring before
the grand jury’” by a person subject to Rule 6(e). Finn, 72 F.3d at
1189 n.7.
The news articles that Fattah cites in support of his
motion make no mention of an agent for the Government supplying
information that could be considered a matter “occurring before the
grand jury.” Indeed, there are only two statements by the
Government shown in the articles. The first is from a spokeswoman
for the U.S. Attorney’s Office who stated: “we don’t confirm or
deny investigations.” The second was made by an IRS spokeswoman,
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who explained “only that IRS criminal investigators were at the
Residences at the Ritz-Carlton [where Fattah lived at the time] on
Wednesday on official business.” While at certain points these news
stories state, for example, that the grand jury had subpoenaed
certain records or that “sources familiar with the probe” discussed
the object of the investigation, these statements, without more, are
a thin reed on which to base a conclusion that the Government made
knowing disclosures of grand jury information.4 Fattah has not made
a prima facie claim of a violation of grand jury secrecy sufficient
to warrant a contempt hearing. Finn, 72 F.3d at 1189 n.7. Nor has
he made any argument that any such violation substantially
influenced the grand jury’s decision to indict. Bank of Nova Scotia
v. United States, 487 U.S. 250, 256 (1988). His motion will
therefore be denied on this ground.
VI.
In sum, we conclude that the grand jury proceedings and
the Government’s investigation were free from the errors Fattah
ascribes to them. He has not come forward with any plausible basis
4 With respect to the alleged conversation between the Assistant U.S. Attorney and an attorney for the defendant’s father, Fattah states in his brief that the U.S. Attorney “spoke of specific charges, such as ‘bank fraud’ and concerns about the statute of limitations on some charges” and stated that the charges would “embarrass” Fattah’s father. We note that Fattah’s version of this conversation relies on hearsay that we may not consider. Furthermore, nowhere does Fattah detail any harm that redounded to him from this conversation. In short, Fattah’s position that the Assistant U.S. Attorney violated Rule 6 through a purported conversation with his father’s attorney is meritless.
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to conclude that the Government suborned any prejudicial perjury
before the grand jury. Furthermore, the search warrant executed on
February 29, 2012 was sufficient to pass constitutional muster. The
conversations that Fattah had with agents for the Government did not
violate Fattah’s rights under Miranda or contain any involuntary
statements prohibited under the Due Process Clause, nor were these
conversations the result of improperly intertwined civil and
criminal proceedings. He has additionally not met his burden of
proof that the attorney-client privilege applies to any email
communications that the Government has reviewed as part of its
investigation. Finally, Fattah has made no colorable showing that
the Government improperly disclosed any matters occurring before the
grand jury. Accordingly, the motion of Fattah will be denied.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
v. CRIMINAL NO. 14-409 (HB)
CHAKAFATTAH, JR.
NOTICE OF APPEAL
Notice is hereby given that CHAKAFATTAH, JR., defendant in the above captioned
case, hereby appeals to the United States Court of Appeals for the Third Circuit from: (1) this
Honorable Court's Order (Document No. 119) dated February 2, 2015; (2) the Court's Order
(Document No. 103) dated January 23, 2015 ; and (3) the Court's Order (Document No. 97)
dated January 21, 2015.
Respectfully submitted, this 3rd day of February, 2015.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v. CHAKA FATTAH, JR.
: : : : :
CRIMINAL ACTION
NO. 14-409
ORDER
AND NOW, this 21st day of January, 2015, it is hereby
ORDERED that the motion of defendant Chaka Fattah, Jr. to compel
disclosure of grand jury number, deliberation time, and session
dates and times (Doc. # 69) is DENIED.
_____________________
On December 22, 2014, the court granted defendant’s motion
to compel the Government to disclose the commencement, extension,
and termination dates of the grand jury which indicted him. The
Government promptly complied. We note that the Government has also
provided defendant with various transcripts of testimony before the
grand jury.
The defendant has now moved to obtain additional details
about the grand jury which, of course, meets and deliberates in
secret. In its response to the motion, the Government has
voluntarily supplied some of what he requests (Doc. # 94).
Defendant has shown no valid reason why further information about
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the grand jury should be disclosed. The motion of the defendant is
therefore being denied.
BY THE COURT:
/s/ Harvey Bartle III J.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v. CHAKA FATTAH, JR.
: : : : :
CRIMINAL ACTION
NO. 14-409
ORDER
AND NOW, this 23rd day of January, 2015, it is hereby
ORDERED that the motion of defendant Chaka Fattah, Jr. to “Quash
Counts 14-18 of the Indictment for Improper Vouching, Grand Jury
Perjury and Prosecutorial Misconduct” (Doc. # 63) is DENIED.
_____________________
Defendant Chaka Fattah, Jr. (“Fattah”) has been indicted
on twenty-three counts of fraud, theft, and tax-related offenses.
In his instant motion Fattah seeks the dismissal of Counts Fourteen
through Eighteen of the indictment which charge various tax
offenses.1 According to Fattah, dismissal is warranted because the
Government improperly vouched for the credibility of certain grand
jury witnesses, introduced perjured testimony to the grand jury, and
committed other misconduct.
1 Although it is titled a “Motion to Quash,” we treat Fattah’s motion as one for dismissal under Rule 12 of the Federal Rules of Criminal Procedure. The adoption of Rule 12 “abolishe[d] ... motions to quash. A motion to dismiss or for other appropriate relief is substituted for the purpose of raising all defenses and objections heretofore interposed.” Advisory Committee’s Note.
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Fattah’s motion is largely predicated on his own version
of events. This is similar to his previous motion to quash the
indictment (Doc. # 34). As we explained in denying that motion
(Doc. # 98), it is for the jury to decide at trial which party’s
story is correct. United States v. Bergrin, 650 F.3d 257, 265 (3d
Cir. 2011).
In addition, Fattah contests the Government’s use of
hearsay testimony and leading questions before the grand jury,
which, he urges, improperly allowed the Government itself to testify
through its witnesses. However, hearsay evidence and leading
questions are permitted in the grand jury setting. United States v.
Ismaili, 828 F.2d 153, 164 (3d Cir. 1987); see United States v.
Pantone, 634 F.2d 716, 722 (3d Cir. 1980).
Finally, Fattah claims the Government should have told the
grand jury that he made a mistake on his 2011 tax return which
resulted in his owing more taxes than he should have. Fattah faces
no charges concerning his 2011 taxes. Any information regarding
them is irrelevant. The Government committed no misconduct in
failing to present this information to the grand jury.
Accordingly, the motion of Fattah is being denied.
BY THE COURT:
/s/ Harvey Bartle III J.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v. CHAKA FATTAH, JR.
: : : : :
CRIMINAL ACTION
NO. 14-409
ORDER
AND NOW, this 2nd day of February, 2015, it is hereby
ORDERED that the motion of defendant Chaka Fattah, Jr. “to Quash the
Indictment for Interfering with Grand Jury Questions, Grand Jury
Perjury, and Other Prosecutorial Misconduct” (Doc. # 85) is DENIED.
_____________________
Defendant Chaka Fattah, Jr. (“Fattah”) has been indicted
on twenty-three counts of fraud, theft, and tax-related offenses.
In his instant motion Fattah seeks to quash the indictment.1
Fattah argues that dismissal is appropriate because the
Government improperly interfered with the grand jury’s questioning
of witnesses, elicited perjured and prejudicial testimony before the
grand jury, and committed other prosecutorial misconduct.
Fattah’s motion is largely predicated on his own version
of events. This is similar to his previous motions to quash the
indictment (Doc. # 34) and to quash Counts Fourteen through Eighteen
1 As we have previously noted, See United States v. Fattah, Criminal Action No. 14-409, 2015 WL 289983, at *1 n.1 (E.D. Pa. Jan. 22, 2015), we treat a motion to “quash” an indictment as a motion to dismiss under Rule 12 of the Federal Rules of Criminal Procedure.
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(Doc. # 63). As we explained in denying those motions, it is for
the jury to decide at trial which party’s story is correct. United
States v. Bergrin, 650 F.3d 257, 265 (3d Cir. 2011). Moreover,
Fattah has failed to make any showing that the irregularities he
contests had any substantial influence over the grand jury’s
decision to indict. Bank of Nova Scotia v. United States, 487 U.S.
250, 256 (1988). Nor does his motion introduce any “‘grave doubt’
that the decision to indict was free from the substantial influence
of such violations.” Id. (quoting United States v. Mechanik, 475
U.S. 66, 78 (1986) (O’Connor, J., concurring)).
Accordingly, the motion of Fattah is being denied.
BY THE COURT:
/s/ Harvey Bartle III J.
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