Opening Brief, Third Circuit

____________________________________________________________________________

UNITED STATES COURT OF APPEALSFOR 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 CourtFor the Eastern District of Pennsylvania

Case No. 2-14-cr-00409-001The Honorable Judge Harvey Bartle, III.

____________________________________

OPENING BRIEF FOR APPELLANT CHAKA FATTAH, JR.____________________________________

Chaka Fattah, Jr., Pro Se5783 Nassau Road PHILA. PA, 19131

Telephone: 215-301-8125E-mail: [email protected]

Attorney for Defendant-AppellantChaka Fattah, Jr.

Dated: March 24, 2015____________________________________________________________________________

Case: 15-1260 Document: 003111912138 Page: 1 Date Filed: 03/24/2015

mailto:[email protected]

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES …………………………………………………… iii

INTRODUCTION ……………………………………………………………… 1

JURISDICTIONAL STATEMENT …………………………………………….. 5

I. THE COLLATERAL-ORDER DOCTRINE ………………. 6

A. PENDANT APPELLATE JURISDICTION ………………… 6

II. WRIT OF MANDAMUS ………………………………….. 6

III. SUPERVISORY AUTHORITY ……………………………. 7

ISSUES PRESENTED …………………………………………………………… 9

STATEMENT OF RELATED CASES ………………………………………….. 11

STATEMENT OF THE CASE ………………………………………………….. 12

SUMMARY OF ARGUMENT …………………………………………………. 12

ARGUMENT ………………………………………………………………. 14

I. THE ORDERS DENYING DISMISSAL OF THE INDICTMENT SHOULD BE REVERSED ……………….. 14

A. Mr. Fattah’s Due Process Rights Were Violated Twenty Nine Months Prior To The Indictment on February 29, 2012 …………………………………… 15

B. Mr. Fattah’s Sixth Amendment Rights To Choice of Counsel & Ability To Mount A Defense Were Violated ………………………………………………. 24

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C. The Prosecutor Was An Unsworn Witness Before The Grand Jury & Interfered With The Independence Of The Grand Jury Investigation……… 33

D. Mr. Fattah’s Fifth Amendment Right To An Unbiased Grand Jury Was Violated ………………….. 38

E. The Indictment Is A Product Of the Prosecutor, Not the Grand Jury …………………………………..…… 45

II. THE ORDER DENYING DISCLOSURE OF INFORMATION RELATED TO THE GRAND JURY SHOULD BE REVERSED ………………………………… 48

III. DUE PROCESS REQUIRES MUCH MORE THAN THE DISTRICT COURT DID IN THIS CASE IN RESPONSE TO MR. FATTAH’S PARTICULARIZED CLAIMS ..….….. 51

A. The Fundamental Requirement Of Due Process Is The Opportunity To Be Heard At A Meaningful Time & In A Meaningful Manner ………………………….. 51

B. This Court Should, In The Alternative, Remand To A Different District Judge Under 28 U.S.C. § 2106 …… 52

CONCLUSION ……………………………………………………………..….. 57

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENT AND TYPE STYLE REQUIREMENT … 58

CERTIFICATE OF SERVICE ………………………………………………….. 59

ii


TABLE OF AUTHORITIES

Page Andersen v. Treat,

172 U.S. 24 (1898) …………..………………………….…………………….. 3

Arizona v. Fulminante, 499 U.S. 279 (1991) ……………………………………………..……………. 4

Armstrong v. Manzo, 380 U.S. 545 (1965) ………………………………..…………………….…. 51

Barry v. United States, 865 F.2d 1317 (D.C. Cir. 1989) ……………………………………………... 23

Beecher v. Alabama, 389 U.S. 35 (1967) …..…………………………………………………..….. 14

Berger v. United States, 295 U.S. 78 (1935) .………………………………………………….….. 29, 32

Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va. 1986) …………………………………………… 16

Brady v. Maryland, 373 U.S. 83 (1963) …………………………………………………….…….. 29

Bram v. United States, 168 U.S. 532 (1897) ……………………………………………………….… 14

California v. Trombetta, 467 U.S. 479 (1984) ……………………………………………………….… 15

Caplin Drysdale, Chartered v. United States, 491 U.S. 617 (1989) .…………………………………………………..……. 30

Cheyney v. U.S. Dist. Ct. D.C., 542 U.S. 367 (2004) ………………………………………………..………… 7

iii


TABLE OF AUTHORITIES (continued)

Page Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) ..……………………….. 6

Comstock Oil & Gas Inc. v. Ala. & Coushatta Indian Tribes of Tex., 261 F.3d 567 (5th Cir. 2001) ……………………………………………….. 6–7

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ………………………………………………………….. 6

Coppedge v. United States, 369 U.S. 438 (1962) …………………………………………………………. 15

Costello v. United States, 350 U.S. 359 (1956) …………………………………………………………. 36

County of Sacramento v. Lewis, 523 U.S. 833 (1998) …..…………………………………………………….. 24

Dluhos v. Strasberg, 321 F.3d 365 (3d Cir. 2003) ………………………………………………….. 5

Douglas v. California, 372 U.S. 353 (1963)………………………………………………………..… 15

Fattah v. United States, 14 Civ. 1092, 2014 U.S. Dist. LEXIS 120021 (E.D. Pa. Aug. 27, 2014) .. 11, 26

Fuller v. Diesslin, 868 F.2d 604 (3d Cir. 1989) ………………………………………………….. 27

Gov. of the Virgin Islands v. Fahie, 419 F.3d 249 (3d Cir. 2005) ……………………………………………….… 31

Gov’t of the V.I. v. Walker, 261 F.3d 370 (3d Cir. 2001) ……………………………………………….…. 51

iv



Page Grannis v. Ordean,

234 U.S. 385 (1914) ……………………………………………………….… 51

Hampton v. United States, 425 U.S. 484 (1976) ……..……………………………………………….…. 23

Herring v. New York, 422 U.S. 853 (1975) ………………………………………………………… 30

Higgs v. Att’y Gen., 655 F.3d 333 (3d Cir. 2011) ………………………………………………….. 5

In re Grand Jury Investigation (DiLoreto), 903 F.2d 180 (3d Cir. 1990) ……………………………….…………………. 49

In re Grand Jury Proceedings, 580 F.2d 13 (1st Cir. 1978) ….……………………………………………….. 50

In re Melvin, 546 F.2d 1 (1st Cir. 1976) ……………………………………………….…… 50

In re United States, 565 F.2d 173 (1st Cir. 1977) ………………………………………….……… 50

John Roe, Inc. v. United States (In re: Grand Jury Proceedings), 142 F.3d 1416, 1425 (11th Cir. 1998) ……………………………………….. 36

Kamara v. Att’y Gen., 420 F.3d 202 (3d Cir. 2005) ……………………………… 14, 24, 33, 38, 44, 49

Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ………………… 43–44

Lainfiesta v. Artuz, 253 F.3d 151 (2d Cir. 2001) …………………………………..……………… 30

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Page

Malinski v. New York, 324 U.S. 401 (1945) ……………………………………………..……… 23–24

Midland Asphalt Co. v. United States, 489 U.S. 794 (1989) ..………………………………………..……… 38, 47, 50

Mooney v. Holohan, 294 U.S. 103 (1935) …………………………………………..…………….. 43

Nat. Hockey League v. Met. Hockey Club, Inc., 427 U.S. 639 (1976) …………………………………………………………. 31

Northern Mariana Islands v. Bowie, 243 F.3d 1109 (9th Cir. 2001) ………………………………………………. 43

Offutt v. United States, 348 U.S. 11 (1954) …………………………..………………………………. 32

Palcko v. Airborne Express, Inc., 372 F.3d 588 (3d Cir. 2004) …………………………………………………… 6

Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) …..………………… 9, 21

Provident Mut. Life. Ins. Co. of Philadelphia v. City of Atlanta, 864 F. Supp. 1274 (N.D. Ga. 1994) ………………………………………….. 16

Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996) ………………………………………….……. 15–16

Rochin v. California, 342 U.S. 165 (1952) …………………………………………..…………. 23–24

Ryder v. Freeman, 918 F. Supp. 157 (W.D.N.C. 1996) ………………………………………..… 16

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Page Sample v. Diecks,

885 F.2d 1099 (3d Cir. 1989) ………………………………………………… 31

Schneckloth v. Bustamante, 412 U.S. 218 (1973) ……………………………………………………….… 53

Strickland v. Washington, 466 U.S. 668 (1984) ……………………………………………………….. 4–5

Sullivan v. Louisiana, 508 U.S. 275 (1993) ………………………………………………………….. 3

Swint v. Chambers County Commission, 514 U.S. 35 (1995) …………………………………………………………… 6

United States ex. rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) …………………………………………………………. 32

United States ex rel. Williams v. Twomey, 510 F.2d 634 (7th Cir. 1975) …………………………………………….…… 30

United States v. Bergrin, 682 F.3d 261 (3d Cir. 2012) ………………………………………………….. 52

United States v. Bertoli, 994 F.2d 1002 (3d Cir. 1993) ………………………………………………… 52

United States v. Birdman, 602 F.2d 547 (3d Cir. 1979) ………………………………………….. 35, 37, 38

United States v. Conley, 859 F. Supp. 830 (W.D. Pa. 1994) …………………………………..……….. 54

United States v. Cronic, 466 U.S. 648 (1984) …………………………………………..…………….. 30

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Page United States v. Dionisio,

410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) ………..…………………… 36

United States v. Eastern Med. Billing, Inc., 230 F.3d 600 (3d Cir. 2000) ………………………………………………….. 8

United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972) .……………………………………………… 39

United States v. Flanagan, 679 F.2d 1072 (3d Cir. 1982) ………………………………………………… 27

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) …………………………………..……….…… 3–5, 28, 32

United States v. Higdon, 638 F.3d 233 (3d Cir. 2011) …………………………………………………… 7

United States v. Jacobs, 431 F.3d 99 (3d Cir. 2005) …………………………………………… 14, 52–56

United States v. Kim, 292 F.3d 969 (9th Cir. 2002) ………………………………………..…… 55–56

United States v. Larrazolo, 869 F.2d 1354 (9th Cir. 1989) ………………………………….…………….. 37

United States v. Laura, 607 F.2d 52 (3d Cir. 1979) …………………………………………..… 3, 26–27

United States v. McKenzie, 678 F.2d 629 (5th Cir. 1982) …………………………………………….. 37, 45

United States v. Olis, H-03-217-01, 2008 WL 5046342 (S.D. Tex. Nov. 21, 2008) ……………..… 26

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Page United States v. Rankin,

779 F.2d 956 (3d Cir. 1986) …………………..…………………… 2–3, 27–28

United States v. Romano, 849 F.2d 812 (3d Cir. 1988) …………………………………………….. 2, 27

United States v. Samango, 607 F.2d 877 (9th Cir. 1979) ……………………………………………….. 44

United States v. Santtini, 963 F.2d 585 (3d Cir. 1992) ………………………………………………….. 7

United States v. Serubo, 604 F.2d 807 (3d Cir. 1979) …………………..………………….. 38–39, 47–48

United States v. Stein, 435 F. Supp. 2d 330 (S.D.N.Y. 2006) ……………………………….. 15, 29, 32

United States v. Stein, 488 F. Supp. 2d 371 (S.D.N.Y. 2007) ………………………..……………… 29

United States v. Stein, 495 F. Supp. 2d 390 (S.D.N.Y. 2007) ……………………………………….. 24

United States v. Stein, 541 F.3d 130 (2d Cir. 2008) ……………………………………….. 24, 27–28

United States v. Swint, 15 F.3d 286 (3d Cir. 1994) ………………………………………..…………. 53

United States v. U.S. Dist. Ct., 444 F.2d 651 (6th Cir. 1971) …………………………………………………. 50

United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996) ………………………………………………..… 27

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Page United States v. Walton,

10 F.3d 1024 (3d Cir. 1993) ……………………………………………… 53–54

United States v. Wecht, 484 F.3d 194 (3d Cir. 2007) ……………………………..………………… 8, 54

United States v. Wexler, 31 F.3d 117 (3d Cir. 1994) …………………………………………………… 7

United States v. Williams, 504 U.S. 36 (1992) ………………………………………………..………… 36

United States v. Wright, No. 13-1766, 2015 WL 106198, — F.3d — (3d Cir. Jan 8, 2015) .…..… 38, 47

Valle v. Stengel, 176 F.2d 697 (3d Cir. 1949)……………………………………………… 22–23

Ward v. Maryland, 12 Wall. 163, 79 U.S. 418 (1870) ………………………………………..….. 22

Washington v. Glucksberg, 521 U.S. 702 (1997) ……………………………………………………….… 15

Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir. 1980) ……………………………………..…..………. 31

Wheat v. United States, 486 U.S. 153 (1988) ………………………………………………….…… 3, 30

Wisconsin v. Constantineau, 400 U.S. 433 (1971) …………………………………..………………….….. 21

Wood v. Georgia, 370 U.S. 375 (1962) ………………………………………………….……… 36

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Page Young v. United States ex rel. Vuitton et Fils S.A.,

481 U.S. 787 (1987) ……………………………………………………….… 32

Zinermon v. Burch, 494 U.S. 113 (1990) ..………………………………………………………… 1

STATUTES & RULES

15 Pa.C.S. §8901 et. seq. ……………………………………………………..…. 22

18 U.S.C. § 3231 ……………………………………………………………….… 5

28 U.S.C. § 1291 …………………………………………………………………. 6

28 U.S.C. § 1651 …………………………………………………………..… 7, 10

28 U.S.C. § 2106 ……………………………………………………………….. 52

3d Cir. L.A.R. 28.1 …………………………………………………………. 9–10

Fed. R. Crim. P. 6(e) ……………………………………………… 9, 13, 22–23, 50

Fed. R. App. P. 21(a) …………………………………………………………. 8, 59

Fed. R. App. P. 32(a) …………………………………………………………….. 58

Local Criminal Rule 6.1 ………………………………………………………… 49

OTHER AUTHORITIES

U.S. CONST. amend I …………………..……………………………………39, 40

U.S. CONST. amend V …..………………………… 1, 8, 9, 10, 13, 23, 30, 40, 48

U.S. CONST. amend VI …………………………… 2, 7, 9, 13, 24, 25, 30, 35, 46

U.S. CONST. Article IV, Section 2 ………………………………………… 22, 23

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8 Moore’s Federal Practice ¶ 6.03[2] (2d ed. 1978) …………………….………. 44

ABA Standard 3.5(b) …………………………………………………….… 38, 47

Federal Judicial Center, Bench Book for United States District Court Judges § 3.02 (3d ed.1986) ……………………………………………………… 35

Sara Sun Beale & William C. Bryson, Grand Jury Law and Practice, § 10.04 (1986) …………………………………………………………………… 35

KEY DISTRICT COURT DOCUMENTS

1. Notice of Appeal re: DDE 98, 99, filed 1/23/15 …….……………… DDE 101

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

2. Notice of Appeal re: DDE 97, 103, 119, filed 2/3/15 ………………. DDE 123

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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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

4, 2012) http://articles.philly.com/2012-03-04/news/31121573_1_gift-cards-loan-officers-school-firm

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http://articles.philly.com/2012-03-04/news/31121573_1_gift-cards-loan-officers-school-firm

defendant makes in shaping his defense is his selection of an attorney.” United

States v. Laura, 607 F.2d 52, 56 (3d Cir. 1979). This Court explained that

“[a]ttorneys are not fungible … [and] may differ as to their trial strategy, their

oratory style, or the importance they give to particular legal issues. These

differences … may be important in the development of a defense…Given this

reality, a defendant’s decision to select a particular attorney becomes critical to the

type of defense he will make and thus falls within the ambit of the sixth

amendment.” Id.

This Court recognized in Rankin that a defendant’s “sixth amendment right

to counsel of choice, [is] a right so fundamental that any interference cannot be

deemed harmless error.” Id. at 76.

The Supreme Court has recently clarified that the Sixth Amendment right to

counsel of choice “has been regarded as the root meaning of the constitutional

guarantee.” United States v. Gonzalez-Lopez, 548 U.S. 140, 147–48 (2006) (citing

Wheat v. United States, 486 U.S. 153, 159 (1988); Andersen v. Treat, 172 U.S. 24

(1898)). The Supreme Court further said that the “erroneous deprivation of the

right to counsel of choice, with consequences that are necessarily unquantifiable

and indeterminate, unquestionably qualifies as ‘structural error.’ ” Id., 548 U.S.

140, 150. (citing Sullivan v. Louisiana 508 U.S. 275, 282 (1993)). Using analogous

reasoning to this Court’s analysis in Laura, the Supreme Court said “[d]ifferent

attorneys will pursue different strategies with regard to investigation and discovery,

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development of the theory of defense, selection of the jury, presentation of the

witnesses, and style of witness examination and jury argument … In light of these

myriad aspects of representation, the erroneous denial of counsel bears directly on

the ‘framework within which the trial proceeds,” (citing Arizona v. Fulminante,

499 U.S. 279, 310 (1991))—or indeed on whether it proceeds at all.” Gonzalez-

Lopez, 548 U.S. 140, 150.

Before the district court, the United States did not suggest that they were not

responsible for the media disclosure in 2012, which also included a statement by

an IRS Spokeswoman. The United States simply responded that “improper

disclosure of ‘matters occurring before the grand jury’ is ordinarily punishable as a

contempt of court.” DDE 53, p.23. 2

Arguing against the emergency stay before this Court on February 18, 2015,

the United States suggested that the right to effective counsel and the right to

counsel of choice are not distinct rights. Gov. Response to Stay, p.2, footnote 1.

The United States’s theory is incorrect. As the Supreme Court made clear in

Gonzalez-Lopez, the “right to counsel of choice” has nothing to do with the

“competency” of the replacement counsel. Justice Scalia, writing for the Supreme

Court, rejected the government’s argument that the Sixth Amendment is not

violated unless a defendant’s lawyer is ineffective within the meaning of Strickland

“DDE” refers to District Court Docket Entry. DDE [number] refers to the docket 2

number.

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v. Washington, 466 U.S. 668 (1984). Instead, the Court concluded that denial of

counsel of choice is a structural error even if substitute counsel’s performance was

neither deficient nor prejudicial to the defendant. The Supreme Court would not

require proof of prejudice, therefore, because doing so would substitute a general

“fairness” standard for the specific procedural protection guaranteed by the

Counsel Clause. Gonzalez-Lopez, 548 U.S. 140, 146, 126 S.Ct. at 2562.

The government’s underlying theme in this case before the district court is

that they can do anything to secure a conviction. That would include violations of

the basic rights guaranteed by the Constitution. If accepted, the government’s

theory would ride roughshod over the well established rights of Due Process and

the right to counsel of choice and the ability to mount a defense. Further, the

government has engaged in other improper conduct before the grand jury which

will be discussed in depth below.

The district court’s order denying the dismissal of the indictment should be

reversed. Mr. Fattah respectfully asks this Court to construe this pleading liberally,

as he is proceeding pro se. See, e.g., Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir.

2011); Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003).

JURISDICTIONAL STATEMENT

The district court had jurisdiction under 18 U.S.C. § 3231. The orders

denying dismissal of the indictment and disclosure of information were entered on

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January 21, 2015 (DDE 97), January 22, 2015 (DDE 98, 99), January 23, 2015

(DDE 103), and February 2, 2015 (DDE 119). Mr. Fattah filed a notice of appeal

on January 23, 2015 (DDE 101). Mr. Fattah filed a second notice of appeal on

February 3, 2015 (DDE 123). The two appeals were consolidated by Order of this

Court on March 4, 2015. The collateral-order doctrine is a practical construction of

the final judgment rule of 28 U.S.C. § 1291, which gives this Court jurisdiction.

Mr. Fattah is proceeding on three alternative jurisdictional theories. First,

Mr. Fattah contends that this appeal raises claims that confer on this Court

jurisdiction based on the argument that the district court’s denial of the specific

motions violates his constitutional right not to be tried, thereby triggering a right to

interlocutory appeal under the collateral-order doctrine. Coopers & Lybrand v.

Livesay, 437 U.S. 463, 468 (1978); Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541 (1949). This Court also has pendent appellate jurisdiction over claims not

covered by the collateral-order doctrine. Swint v. Chambers County Commission,

514 U.S. 35, 42 (1995); Palcko v. Airborne Express, Inc., 372 F.3d 588, 594 (3d

Cir. 2004). This Court can exercise pendant appellate jurisdiction when “sufficient

overlap of facts exist[s] to warrant plenary review,” Palcko, 372 F.3d at 594, and

one of the Swint criteria is met. See Comstock Oil & Gas Inc. v. Ala. & Coushatta

Indian Tribes of Tex., 261 F.3d 567, 570–71 (5th Cir. 2001) (where some issues that

were not appealable under the collateral order doctrine were intertwined with other

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issues over which there was appellate jurisdiction, the court found the “rare

circumstances present” to justify exercise of pendent appellate jurisdiction.).

In the alternative, Mr. Fattah asks this Court to consider this appeal as a

petition for a writ of mandamus. 26 U.S.C. § 1651. See, e.g., United States v.

Wexler, 31 F.3d 117, 128 (3d Cir. 1994); United States v. Santtini, 968 F.2d 585 (3d

Cir. 1992) (“[T]he parties are free to proceed alternatively on application for a writ

of by appeal, with the court determining which, if any, procedure is more

appropriate.” Id. at 19.). The writ is proper when the district court committed a

“clear abuse of discretion” or a “clear error of law.” Wexler, 31 F.3d at 128. See

also United States v. Higdon, 638 F.3d 233, 245 (3d Cir. 2011) (citing Cheyney v.

U.S. Dist. Ct. D.C., 542 U.S. 367, 380–81 (2004), for a two element test. Although

this Court may issue a writ of mandamus when a district court either exceeded its

lawful jurisdiction or declined to exercise a non-discretionary power, those are not

the exclusive reasons to issue a writ. “Mandamus may issue to correct clear abuses

of discretion, to further supervisory and instructional goals, or to resolve unsettled

and important issues.” Wexler, 31 F.3d at 128–129. Mr. Fattah submits that this

present case meets all the prerequisites that would justify a writ of mandamus to

issue in this case. The district court’s order simply disregarded several

constitutional issues, without any analysis whatsoever. The district court simply

declined to exercise its power with regard to the Fifth Amendment and Sixth

Amendment issues discussed in detail below. Under this Court’s precedent and

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Supreme Court precedent, the district court simply had no discretion to exercise.

Mr. Fattah has no other adequate means to obtain the relief sought, the dismissal of

the indictment due to constitutional errors. Because of the nature of the Sixth

Amendment violation of the right to counsel of choice and ability to mount a

defense, Mr. Fattah may never have the opportunity to vindicate his rights on direct

appeal. Specifically, without the counsel of choice at each critical stage of the

proceedings, certain issues may not be adequately raised on direct appeal. The

issuance of a writ of mandamus can also further supervisory and instructional goals

in this case because the district court disregarded several constitutional arguments,

without the benefit of an evidentiary hearing. Certain claims will be likely

impossible to raise on direct appeal without the benefit of the requested hearing,

and the full opportunity to develop the record. Mr. Fattah submits that the rare,

exceptional circumstances exist in this case to justify the issuance of a writ of

mandamus. Mr. Fattah has served this brief in compliance with Fed. R. App. P.

21(a), with respect to the writ of mandamus.

Further, this Court may assert jurisdiction under its supervisory authority.

See, e.g., United States v. Eastern Med. Billing, Inc., 230 F.3d 600, 607–12 (3d Cir.

2000) (discussing invocation of supervisory authority to prohibit certain jury

instructions); United States v. Wecht, 484 F.3d 194, 197–98 (3d Cir. 2007)

(declining to address constitutional questions because of availability of invoking

!8


supervisory authority over speech by attorneys during ongoing criminal

proceedings).

ISSUES PRESENTED

1. Whether Mr. Fattah’s right to Due Process was violated based on the

Supreme Court’s stigma-plus doctrine in Paul v. Davis, 424 U.S. 693 (1976),

Fed.R.Crim.P. 6(e) and the requirement of notice and a hearing in Zinermon

v. Burch. Whether or not Mr. Fattah’s right to substantive due process was

violated, or Fed.R.Crim.P. 6(e) was violated. (Raised: DDE 34, p.93, 85-93.

DDE 60, p.49-50) (Objected to: DDE 53, p.23) (Ruled upon: DDE 98 p.

18-21, 99). Pursuant to 3d Cir. L.A.R. 28.1(a)(1).

2. Whether Mr. Fattah’s Sixth Amendment rights to counsel of choice or

ability to mount a defense were violated. If so, whether Mr. Fattah is entitled

to dismissal of the indictment based on the structural error. (Raised: DDE

34, p.94-98. DDE 60, p.46-48) (Objected to: DDE 53) (Ruled upon: DDE

98).

3. Whether the AUSA’s actions before the grand jury (a) constituted

unsworn testimony, (b) interfered with the independence of the grand jury,

(c) were a fundamental technical or procedural defect that caused the grand

jury no longer to be a grand jury, or the indictment no longer to be an

indictment. (Raised: DDE 34, p.27, 53, 110. DDE 60, p.54-58) (Objected to:

DDE 53) (Ruled upon: DDE 98).

!9


4. Whether Mr. Fattah’s Fifth Amendment right to an unbiased grand

jury was violated. (Raised: DDE 34, p.7-8. DDE 60, p.43.) (Objected to:

DDE 53) (Ruled upon: DDE 98, 99).

5. Whether the district court Order denying the motion to compel

disclosure of information related to the grand jury should be reversed.

(Raised: DDE 69, p.1) (Objected to: DDE 94, p.2) (Ruled upon: DDE 97).

6. Whether the district court should have granted an evidentiary hearing

based on the particularized claims in Mr. Fattah’s motions to dismiss on

appeal. Whether certain aspects of the upcoming trial would have violated

Mr. Fattah’s due process rights. (Raised: DDE 34, DDE 60) (Objected to:

DDE 53) (Ruled upon: DDE 98, 99).

7. Whether a writ of mandamus or prohibition should issue under the

facts and circumstances of this case. 26 U.S.C. § 1651

!10


STATEMENT OF RELATED CASES

Pursuant to 3d Cir. L.A.R. 28.1(2) (2011), this case or proceeding has not

been before this Court previously. There is a pending civil action related to this

case, as stated below.

On February 21, 2014, Mr. Fattah filed, pro se, a civil action seeking

monetary damages in the Eastern District of Pennsylvania against the United States

for the media disclosures and the resulting damage to his reputation, employment

and business activities. That civil matter, by Order of the district court, will

proceed to a jury trial at some point in the future, with the primary claim above

surviving the government’s motion to dismiss. Fattah v. United States, 14 Civ.

1092, 2014 U.S. Dist. LEXIS 120021 (E.D. Pa. August 27, 2014) (Savage, J.). The

district court, after extensive briefing, said “[t]he allegations that an IRS official

confirmed to news reporters that criminal investigators were at Fattah’s residence

are sufficient to raise an inference that his information was disclosed . . . One could

reasonably infer that the media showing up at Fattah’s residence before 7 a.m. was

not fortuitous and was instead the result of advance notice.” Id., slip. op. at *30—

*32.

!11


STATEMENT OF THE CASE

The appellant, Mr. Fattah, was indicted on July 29, 2014 in the Eastern

District of Pennsylvania on a 23-count indictment alleging tax, bank, and fraud

related violations. The United States requested that the district court designate this

matter complex in August, 2014, despite the presumption of readiness after

bringing formal charges. Further, Mr. Fattah’s previous counsel filed a request for a

continuance due to incomplete discovery by the United States on September 26,

2014. The United States did not oppose this request.

The United States provided Mr. Fattah’s previous counsel at the Federal

Defender’s Office over 120,000 pages of discovery. The charges involve

allegations of financial transactions spanning a seven year period, extending back

more than ten year’s from today’s date.

SUMMARY OF ARGUMENT

I. Mr. Fattah contends that the government started this process on February 29,

2012 without any concern or deference to the constitutional and procedural

rights guaranteed to every defendant. The media leak on February 29, 2012 led

to a significant amount of negative media stories which led to Mr. Fattah losing

at least $432,000 over the past three years, under his then-existing contract.

Further, it is impossible to know what other business or employment

opportunities would have been completed without the government’s disclosure

of the investigation which led to the present charges. Moreover, Mr. Fattah

!12


may have secured a more valuable contract without the government’s media

disclosure.

II. The government’s interference with Mr. Fattah’s business and employment

opportunities led to Mr. Fattah going from someone with a six-figure income,

to becoming someone who needed an attorney appointed to represent him.

Without the government’s interference Mr. Fattah would have been able to hire

his counsel of choice. Mr. Fattah could have easily chosen to be represented by

a reputable white-collar law firm, such as Skadden Arps Slate Meager & Flom,

or Drinker Biddle and Reath LLP, without the government’s improper media

disclosure. Mr. Fattah demonstrated to the district court the status of his

finances, specifically his lack of assets and income.

III. The prosecutor acted as an unsworn witness before the grand jury, answering

questions posed to witnesses, and preventing questions from being directly

asked to certain witnesses. Mr. Fattah contends that is improper under this

Court’s precedent and the Grand Jury Clause.

IV. The prosecutor interfered with the independence of the grand jury. It is well-

established that the grand jury must be independent of the prosecuting attorney.

Mr. Fattah further contends that his right to an unbiased grand jury was

violated.

V. Mr. Fattah asserts that the district court either misinterpreted the limits under

Rule 6(e) or plainly abused its discretion in denying the motion to compel

!13


disclosure. The motion requested a copy of the order which purportedly

extended the grand jury beyond the 18 month limitation. Further, the motion to

compel requested the grand jury number to confirm the empanelment date.

Depending on the information that was not disclosed, the grand jury may not

have been properly sitting on July 29, 2014.

VI. The district court should have granted Mr. Fattah an evidentiary hearing to

give Mr. Fattah the opportunity to firmly establish his particularized claims.

The upcoming trial would have allowed perjured testimony to be given by

government witnesses, with no recourse for Mr. Fattah, other than appeal if the

testimony results in a conviction. Further, the upcoming trial would have

allowed involuntary recorded statements to be played before the jury, in

violation of this Court and the Supreme Court’s precedent excluding

statements given based on implied or direct promises, however slight. Beecher

v. Alabama, 389 U.S. 35 at 7, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967) (citing Bram

v. United States, 168 U.S. 532, 542–43, 18 S.Ct. 183, 186–87, 42 L.Ed. 568

(1897); See also United States v. Jacobs, 431 F.3d 99 (3d Cir. 2005).

ARGUMENT

I. THE ORDERS DENYING DISMISSAL OF THE INDICTMENT SHOULD BE REVERSED

STANDARD OF REVIEW

This Court reviews constitutional issues and questions of law de novo. Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir. 2005).

!14


A. Mr. Fattah’s Due Process rights were violated twenty-nine months prior to the indictment on February 29, 2012.

Mr. Fattah contends that his substantive Due Process right to fairness in the

criminal process was violated on February 29, 2012 through the government’s

media disclosure. The Supreme Court has said “[u]nder the Due Process Clause . . .

criminal prosecutions must comport with the prevailing notions of fundamental

fairness.” California v. Trombetta, 467 U.S. 479 (1984). The Supreme Court has

further said “[n]o general respect for, nor adherence to, the law as a whole can well

be expected without judicial recognition of the paramount need for prompt,

eminently fair and sober criminal law procedures. The methods we employ in the

enforcement of our criminal law have aptly been called the measures by which the

quality of our civilization may be judged.” Douglas v. California, 372 U.S. 353,

358 n.2 (1963) (quoting Coppedge v. United States, 369 U.S. 438, 449 (1962))

(emphasis added).

The “Due Process Clause has been interpreted to provide not only

procedural protection for deprivations of life, liberty, and property, but also

substantive protection for fundamental rights those that are so essential to

individual liberty that they cannot be infringed by the government unless the

infringement is narrowly tailored to serve a compelling state interest.” United

States v. Stein, 435 F. Supp. 2d 330, 360 (S.D.N.Y. 2006) (citing See, e.g.,

Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). See also Quill v. Vacco, 80

!15


F.3d 716, 724 (2d Cir. 1996) (recognizing the right to fairness in a criminal

proceeding as a fundamental liberty interest subject to substantive due process

analysis), rev’d on other grounds, 521 U.S. 793 (1997); Ryder v. Freeman, 918 F.

Supp. 157, 161 (W.D.N.C. 1996) (“fundamental fairness in the criminal process”);

Boyd v. Bulala, 647 F. Supp. 781, 787 (W.D. Va. 1986) (“right to fairness in the

criminal process”), rev’d in part on other grounds, 877 F.2d 1191 (4th Cir. 1989);

cf. Provident Mut. Life Ins. Co. of Philadelphia v. City of Atlanta, 864 F. Supp.

1274, 1291 (N.D. Ga. 1994) (noting in equal protection analysis “the right to

fairness in the criminal process”).

On February 29, 2012 the United States executed a search warrant at Mr.

Fattah’s residence, his office, and served subpoenas on Mr. Fattah. The agents

arrived at Mr. Fattah’s residence before 7:00 a.m. on a Wednesday morning. The

agents, wearing plainclothes and using unmarked cars would not normally attract

the attention of the media. In general terms, the media does not spend much time

paying photographers to wait outside of buildings when they have no idea if

anything will or will not happen that day, which is newsworthy. In this case, the

Philadelphia Inquirer paid photographer Ed Hille to stand outside of Mr. Fattah’s

residence to capture the agents entering and exiting Mr. Fattah’s residence. A short

time after the agents visit, the first news story appeared online, “FBI seizes records

!16


of Rep. Fattah’s son. ” The story says, in part, “[f]ederal authorities are 3

investigating why a company owned by the son of U.S. Rep. Chaka Fattah was

paid $450,000 by an education firm that has received millions in contracts from the

Philadelphia School District, according to sources familiar with the probe. Agents

from the FBI and U.S. Treasury Department served two search warrants early

Wednesday for Chaka Fattah Jr.’s records, the first at his apartment at the

Residences at the Ritz-Carlton. They also seized Fattah’s records and a computer

from the Logan Square law office of David T. Shulick.” Further, the story states

that “[f]ederal agents arrived about 6:40 a.m. Wednesday outside Fattah’s home,

and at Shulick’s office shortly after 10 a.m. They left the law office about 50

minutes later, carrying a Dell desktop computer and boxes of records.” Another

media outlet, the Washington Times, ran a story the same day “Lawmaker’s son

FBI Seizes Record of Rep. Fattah’s Son, The Philadelphia Inquirer (Feb. 29, 3

2012) http://articles.philly.com/2012-02-29/news/31111091_1_agents-fbi-investigation

!17


http://articles.philly.com/2012-02-29/news/31111091_1_agents-fbi-investigation

target of federal search. ” There were many additional news stories . The 4 56789101112

local television station, 6ABC did a report . In the Washington Times story, it 13

states that “IRS Spokeswoman Shauna Frye said only that IRS criminal

Lawmaker’s son target of federal search, Washington Times. http://4

www.washingtontimes.com/news/2012/feb/29/lawmakers-son-target-of-federal-search/

Feds Raid Home of Congressman Fattah’s Son, Philadelphia Magazine (Feb. 29, 5

2012) http://www.phillymag.com/news/2012/02/29/feds-raid-home-congressman-chaka-fattahs-son/

U.S. Rep. Chaka Fattah’s son luxury home raided, Metro Newspaper (Feb. 29, 6

2012) http://www.metro.us/local/u-s-rep-chaka-fattah-s-son-s-luxury-home-raided/tmWlbC---91ZpdjBT0u2o/

Feds raid home of Rep. Fattah’s son, Politico (Feb. 29, 2012) http://7

www.politico.com/blogs/on-congress/2012/02/feds-raid-home-of-rep-fattahs-son-115975.html

FBI Investigating Pennsylvania congressman’s son, Fox News (Mar. 1, 2012) 8

http://www.foxnews.com/politics/2012/03/01/fbi-investigating-pennsylvania-congressmans-son/

FBI investigates son of Pa. congressman Fattah, Associated Press (Feb. 29, 2012) 9

http://cumberlink.com/news/state-and-regional/fbi-investigates-son...gressman-fattah/article_bf135da4-633a-11e1-af05-0019bb2963f4.html

FBI conducts raid at home of Chaka Fattah’s son, Newsworks (Feb. 29, 2012) 10

http://www.newsworks.org/index.php/local/the-latest/34691-fbi-conducts-raid-at-home-of-chaka-fattahs-son

FBI Investigates Congressman Fattah’s Son, NBC 10 (Mar. 1, 2012) http://11

www.nbcphiladelphia.com/news/local/FBI-Investigates-Congressman-Fattahs-Son-141031923.html

Feds pay visit to Fattah son, lawyer, Philadelphia Daily News (Mar. 1, 2012) 12

http://articles.philly.com/2012-03-01/news/31114158_1_firm-inquirer-investigators

Rep. Fattah’s Son Possible Target of FBI Raid, ABC (Feb. 29, 2012) (transcript) 13

http://freebeacon.com/issues/pa-congressman-chaka-fattahs-son-suspect-of-a-fbi-raid/

!18


http://articles.philly.com/2012-03-01/news/31114158_1_firm-inquirer-investigators

http://cumberlink.com/news/state-and-regional/fbi-investigates-son...gressman-fattah/article_bf135da4-633a-11e1-af05-0019bb2963f4.html

http://www.politico.com/blogs/on-congress/2012/02/feds-raid-home-of-rep-fattahs-son-115975.html

http://www.phillymag.com/news/2012/02/29/feds-raid-home-congressman-chaka-fattahs-son/

http://www.nbcphiladelphia.com/news/local/FBI-Investigates-Congressman-Fattahs-Son-141031923.html

http://www.washingtontimes.com/news/2012/feb/29/lawmakers-son-target-of-federal-search/

http://www.foxnews.com/politics/2012/03/01/fbi-investigating-pennsylvania-congressmans-son/

http://freebeacon.com/issues/pa-congressman-chaka-fattahs-son-suspect-of-a-fbi-raid/

http://www.newsworks.org/index.php/local/the-latest/34691-fbi-conducts-raid-at-home-of-chaka-fattahs-son

http://www.metro.us/local/u-s-rep-chaka-fattah-s-son-s-luxury-home-raided/tmWlbC---91ZpdjBT0u2o/

investigators were at the Residences at the Ritz-Carlton on Wednesday on official

business.” That communication by Ms. Frye allowed anyone with access to Google

to determine Mr. Fattah’s home address. There were many additional news stories

in 2012 and 2013. For instance, one story says that “Shulick and DVHS are also

involved in an ongoing federal investigation that also reportedly targets Chaka[]

Fattah, Jr., the son of Philadelphia U.S. Rep. Chaka Fattah. the younger Fattah has

done consulting work for DVHS. A federal grand jury has subpoenaed DVHS’s

records and investigators are reportedly looking into… ” Another story says “a 14

for-profit education firm whose records were recently subpoenaed by a federal

grand jury. ” Further, a story says “the FBI was secretly digging into his finances - 15

even recording his conversations as he talked about his work as a budding political

consultant”, and “Fattah Jr.’s image crumbled for good on Wednesday, when agents

raided the Ritz-Carlton apartment and Fattah Jr.’s space at a law office, seizing a

computer and records. ” 16

The final blow? District severs ties with disciplinary school in East Falls, 14

Newsworks (Aug. 22, 2012) http://www.newsworks.org/index.php/local/roxborough-weekly-newsletter/43278-dvhs-update

Education firm linked to Fattah’s son…, The Philadelphia Inquirer (Jul. 24, 15

2012) http://articles.philly.com/2012-07-24/news/32805662_1_chaka-chip-fattah-disciplinary-school-alternative-schools

Behind the facade, troubles rose for Fattah son, The Philadelphia Inquirer (Mar. 16

4, 2012) (Sunday cover story) http://articles.philly.com/2012-03-04/news/31121573_1_gift-cards-loan-officers-school-firm

!19


http://articles.philly.com/2012-07-24/news/32805662_1_chaka-chip-fattah-disciplinary-school-alternative-schools

http://articles.philly.com/2012-03-04/news/31121573_1_gift-cards-loan-officers-school-firm

http://www.newsworks.org/index.php/local/roxborough-weekly-newsletter/43278-dvhs-update

Pictures (above) of federal agents entering Mr. Fattah’s residence, and office

on February 29, 2012 taken by Ed Hille, and Mark Swanson. Mr. Hille and Mr.

Swanson are staff photographers for the Philadelphia Inquirer.

Mr. Fattah contends that the above news stories objectively account for more

than 10 million media impressions, including national outlets such as Fox News,

Politico, and the Associated Press. The United States had the responsibility of

lawfully executing a search warrant without informing the media of their arrival

times.

Mr. Fattah contends that his substantive Due Process rights was violated by

the media disclosure shown above. Mr. Fattah lost significant income, at least

$144,000 per year, based on the above media disclosure. Before the district court,

the United States did not suggest that they were not responsible for the media leak

in 2012. The United States simply responded that “improper disclosure of ‘matters

occurring before the grand jury’ is ordinarily punishable as a contempt of court.”

!20


DDE 53, p.23. Mr. Fattah also submits that his right to procedural due process was

violated under the Supreme Court’s stigma-plus doctrine.

Mr. Fattah argued to the district court that “the United States violated his

Due Process rights on February 29, 2012, which caused him to lose substantial

income over the past 2.5 years.” DDE 34, p.93–94. That statement is supported by

a sworn affidavit. DDE 60, p.360 (“I, through reference, affirm that I can

competently testify as to all matters stated and referenced in the Motion to Quash

(DDE 34), and the Reply Brief [DDE 60].”)

The Supreme Court held in Wisconsin v. Constantineau, 400 U.S. 433, 91

S.Ct. 507, 27 L.Ed.2d 515 (1971) that an individual has a protectable interest in

reputation. “Where a person’s good name, reputation, honor, or integrity is at stake

because of what the government is doing to him, notice and an opportunity to be

heard are essential.” Id. at 437, 91 S.Ct. 507. Subsequently it was clarified that the

loss of personal reputation, standing alone, does not implicate procedural due

process. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).

However, Mr. Fattah contends his constitutional right to procedural due process

was violated based on the stigma-plus theory (reputation, plus another tangible

harm). The “plus” here, Mr. Fattah contends, is that he suffered a loss of

employment and business income due to the disclosure by the government of the

criminal investigation in February 2012. This is the “some more tangible

interest[],” as required by Paul, 424 U.S. at 701, 96 S.Ct. at 1161.

!21


This Court has said, in 1949, that “[i]t is clear that the Supreme Court had

held that the words ‘Privileges and Immunities’ of Article IV, Section 2, protect the

right of a citizen to engage in lawful commerce, trade or business without

molestation or harassment.” Valle v. Stengel, 176 F.2d 697, 703 (3d Cir. 1949)

(citing Ward v. Maryland, 12 Wall. 163, 79 U.S. 418, 430, 20 L.Ed. 260 (1870)).

Mr. Fattah also has a right or status under state law to operate his business, which

is a limited liability company. 15 Pa.C.S. §8901 et. seq. Those rights were denied

with the disclosure of the criminal investigation to the media. This Court has

further said that “[t]he ‘Privileges and Immunities’ clause also guarantees the right

of the individual citizen to engage in the pursuit of happiness.” Valle v. Stengel,

176 F.2d 697, 703 (3d Cir. 1949). Mr. Fattah contends that the government

improperly interfered with the right to the pursuit of happiness.

The news stories referenced above overall created and disseminated a false

and defamatory impression that Mr. Fattah had violated the law. Mr. Fattah was not

charged with any crime until August 5, 2014, however, these stories ran in 2012

because the United States wanted headlines and national media attention associated

with this investigation. Mr. Fattah has not been convicted of any crime. Mr. Fattah

contends that any statement made to a news reporter satisfies the requirement that

the statement be made publicly.

Mr. Fattah argued before the district court that in addition to violating his

right to Due Process, that the media disclosures violated Federal Rule of Criminal

!22


Procedure 6(e). DDE 34, p.85–92. The district court’s order (DDE 98, p.18–20)

fails to consider or distinguish the case of Barry v. United States, 865 F.2d 1317,

1325 (D.C. Cir. 1989), which said “[i]t is not necessary for [an] article to expressly

implicate the Justice Department [or other governmental entity] as the source of

the disclosures if the nature of the information disclosed furnished the connection.”

Id. This case was cited in the motion, which was denied. DDE 34, p.88–89.

The information disclosed included the time of the agents arrival. The

specific federal entity they worked for, namely the FBI and IRS, and other details

about the investigation. The United States did not deny giving any information to

the media, and the district court should have ordered a contempt hearing. The

government’s actions exposed Mr. Fattah and his business to public obloquy,

without any hearing, notice, or other opportunity to clear his name in 2012.

The government’s conduct violated the fundamental “ ‘canons of decency

and fairness,’ ” Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96

L.Ed. 183 (1952) (quoting Malinski v. New York, 324 U.S. 401, 417, 65 S.Ct. 781,

789, 89 L.Ed. 1029 (1945) (opinion of Frankfurter, J.). The “[g]overnment activity

in question violate[d] [two] protected right[s] of the defendant,” Hampton v. United

States, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650 (1976). Mr. Fattah has the right to

fairness in the criminal process and the right to “engage in lawful commerce, trade

or business” without molestation or harassment. Valle, 176 F.2d 697, 703 (3d Cir.

1949). The canons of decency and fairness “express the notions of justice of

!23


English-speaking peoples even toward those charged with the most heinous

offenses.” Rochin, 342 U.S. at 169 (quoting Malinski, 324 U.S. at 416–417, 65

S.Ct. 789). Dismissal of the indictment is an appropriate remedy for a substantive

due process violation. United States v. Stein, 495 F. Supp. 2d 390 (S.D.N.Y. 2007).

This Court should find that the government’s conduct “shocks the conscience.”

County of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998).

Accordingly, this Court should find that there was a substantive, or

procedural Due Process violation in this case.

STANDARD OF REVIEW


B. Mr. Fattah’s Sixth Amendment rights to choice of counsel and ability to mount a defense were violated as of August 5, 2014.

The government’s pre-indictment conduct was of a kind that would, and did

in this case, have post-indictment effects of Sixth Amendment significance. As the

Second Circuit said “[w]e endorse this analysis. Although defendants’ Sixth

Amendment rights attached only upon indictment, the district court properly

considered pre-indictment state action that affected defendants post-indictment.

When the government acts prior to indictment so as to impair the suspect’s

relationship with counsel post-indictment, the pre-indictment actions ripen into

cognizable Sixth Amendment deprivations upon indictment.” United States v.

Stein, 541 F.3d 130, 147 (2d Cir. 2008).

!24


The media disclosure above destroyed Mr. Fattah’s income. Immediately

following the disclosure of a criminal investigation by the government, Mr. Fattah

lost a contract valued at $144,000 per year, with significant bonus opportunities.

Mr. Fattah argued to the district court that the loss of income due to the media leak

caused a violation of his right to choice of counsel and the ability to mount a

defense. DDE 34, p.86. (“Finally, the government’s violation of [Mr.] Fattah’s Due

Process rights on February 29, 2012, led to him losing hundreds of thousands of

dollars of income, income which would have been available to fund his defense.

This pre-indictment conduct, which effects carried over into post-indictment is a

violation of the Sixth Amendment right to counsel of choice and to mount the best

defense using your own resources.”). That statement is supported by a sworn

affidavit. DDE 60, p.360.

Mr. Fattah’s finances pre-media leak on February 29, 2012 and since are

clearly disparate. In 2010, Mr. Fattah’s business had revenue of $295,392, with a

corresponding income to Mr. Fattah of $160,580. Mr. Fattah had a 2011 income

from business of $174,634, and an adjusted gross income of $315,675. Mr. Fattah

had a 2012 income of $16,891, representing earnings from the business prior to the

raid. There were no other receipts or income earned in 2012 after the February 29,

2012 news media disclosures and the viral media stories. In 2013, Mr. Fattah’s

business had revenue of $5,750. Mr. Fattah earned no income in 2013, since his

business expenses exceeded the revenue by approximately $819. In 2014, Mr.

!25


Fattah had an adjusted gross income of $804, including a loss from business

revenue of $2,350. Mr. Fattah provided a financial affidavit to the district court on

August 5, 2014, showing no income, or assets to otherwise pay for counsel. Mr.

Fattah was also granted in forma pauperis status for his civil suit on March 19,

2014 after a hearing. See Statement of Related Cases. That is to say, this is not a

case where “[the defendant] has failed to present any evidence showing [] that he

lacked funds needed to mount the defense of his choosing…” United States v. Olis,

H-03-217-01, 2008 WL 5046342, at *13 (S.D. Tex. Nov. 21, 2008). It is also a

distinct possibility that without the media disclosure Mr. Fattah’s finances may

actually have improved from the $144,000 per year he was earning at the time. The

right to counsel of choice and the ability to mount a defense are important rights

that were simply ignored by the district court.

This Court recognized 36 years ago, as explained by late Circuit Judge A.

Leon Higginbotham, that “the most important decision a defendant makes in

shaping his defense is his selection of an attorney.” United States v. Laura, 607

F.F2d 52, 55 (3d Cir. 1979). Further this Court noted that “[a]ttorneys are not

fungible,” and “[t]he ability of a defendant to select his own counsel permits him to

choose an individual in whom he has confidence.” Id. at 56.

The Third Circuit has stated that “[a]lthough the right of representation by

chosen counsel is subject to limitations it may not be hindered unnecessarily.

Interfering with a defendant’s efforts to secure counsel and thereby forcing on him

!26


representation by an undesired court-appointed attorney may amount to denial of a

constitutional right.” (emphasis added) United States v. Rankin, 779 F.2d 956, 958

(3d Cir. 1986). As written by late Circuit Judge Weis, “[f]or that reason, ‘[a]

defendant’s choice of counsel is not to be dealt with lightly or arbitrarily.’ ” Id.

(citing United States v. Flanagan, 679 F.2d 1072, 1076 (3d Cir. 1982), rev’d on

other grounds, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984); See also

United States v. Romano, 849 F.2d 812, at 76 (3d Cir. 1988) (quoting Rankin and

Laura); United States v. Voigt, 89 F.3d 1050 (“Under current circuit precedent,

arbitrary denials of the right to counsel of choice mandate per se reversal.” Id at

87.) (citing Fuller v. Diesslin, 868 F.2d 604, 607–608 (3d Cir.), cert. denied, 493

U.S. 873, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989)).

In Rankin, this Court held that a defendant’s “sixth amendment right to

counsel of choice, [is] a right so fundamental that any interference cannot be

deemed harmless error.” Id. at 76.

The Second Circuit has said “[i]n a nutshell, the Sixth Amendment protects

against unjustified government interference with the right to defend oneself using

whatever assets one has or might reasonably and lawfully obtain.” United States v.

Stein, 541 F.3d 130, 156 (2d Cir. 2008). Further, the Stein Court said “[t]he

government conceded that it is in the government’s interest that every defendant

receive the best possible representation he or she can obtain … But if it is in the

government’s interest that every defendant receive the best possible representation,

!27


it cannot also be in the government’s interest to leave defendant’s naked to their

enemies.” (emphasis added) Id. at 157.

The Stein Court held, consistent with this Court’s opinion in Rankin, that the

error could not be harmless. “A defendant who is deprived of counsel of choice

(without justification) need not show how his or her defense was impacted; such

errors are structural and are not subject to harmless error review.” Stein, 541 F.3d at

157. (citing Gonzalez-Lopez, 548 U.S. at 144, 148–52, 126 S.Ct. 2557. ‘[T]he right

at stake here is the right to counsel of choice, … and that right was violated

because the deprivation of counsel was erroneous. No additional showing of

prejudice is required to make the violation ‘complete’ Id. at 146, 126 S.Ct. 2557.)

The Second Circuit in Stein, reasoned that “[t]herefore, the government deprived

[four defendants] of their Sixth Amendment right to counsel of choice. The

remaining [nine] defendants … assert that the government unjustifiably interfered

with their relationship with counsel and their ability to defend themselves. We

agree: these defendants can easily demonstrate interference in their relationships

with counsel and impairment of their ability to mount a defense [] [which] ‘caused

them to restrict the activities of their counsel,’ and thus to limit the scope of their

pre-trial investigation and preparation.” United States v. Stein, 541 F.3d 130, 150

(2d Cir. 2008).

The same is true here. Mr. Fattah can easily show he has limited the scope of

his pre-trial investigation preparation, and has been unable to obtain his counsel of

!28


choice due to the media disclosure in February 2012 and its devastating impact on

his finances. The present case has more than 120,000 pages of discovery, and

allegations covering financial transaction spanning a seven year period, extending

back more than ten years from the present date. There can be no meaningful debate

that financial resources are relevant to pre-trial preparation and defense

investigation. Certainly, an individual with significant funds, i.e. hundreds of

thousands of dollars, can hire investigators, forensic accountants, expert witnesses,

and other professional to assist with trial-preparation, defense investigation, and

the trial itself. Mr. Fattah is in an analogous financial position to at least three of

the defendants in Stein. The district court found that Mr. Hasting was insolvent.

United States v. Stein, 488 F. Supp. 2d 371-72, 2007 WL 1765613, at *1–2

(S.D.N.Y. 2007). Further, two other defendants in Stein, Mr. Bickham and Mr.

Watson had less assets than their debts.

The district court in Stein said “[i]f those whom the government suspects are

culpable in fact are guilty, they should pay the price. But the determination of guilt

or innocence must be made fairly — not in a proceeding in which the government

has obtained an unfair advantage long before the trial even has begun.” United

States v. Stein, 435 F. Supp. 2d 330, 381 (S.D.N.Y. 2006.) (citing Berger v. United

States, 295 U.S. 78, 88 (1935); see also, e.g., Brady, 373 U.S. 83, 87 (1963))

(“Society wins not only when the guilty are convicted but when criminal trials are

fair; our system of the administration of justice suffers when any accused is treated

!29


unfairly. An inscription on the walls of the Department of Justice states the

proposition candidly under the federal domain: ‘The United States wins a point

whenever justice is done its citizens in the courts.’ ”). As the late Circuit Judge

Wyzanski explained, while “a criminal trial is not a game in which participants are

expected to enter the ring with a near match in skills, neither is it a sacrifice of

unarmed prisoners to gladiators.” United States v. Cronic, 466 U.S. 648, 657

(1984) (quoting United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th

Cir. 1975).

The purpose of a trial is to establish the truth, beyond a reasonable doubt.

The Supreme Court has noted that “[t]ruth…is best discovered by powerful

statements on both sides of the question.” Cronic, 466 U.S. at 655. The

government’s actions in this case prevented Mr. Fattah from being able to hire a

reputable white-collar law firm, and instead forced him to be represented by the

Federal Defender’s Office. Mr. Fattah has a constitutional right “to control the

presentation of his defense.” Lainfiesta v. Artuz, 253 F.3d 151, 154 (2d Cir. 2001)

(citing Herring v. New York, 422 U.S. 853, 857 (1975)), cert. denied, Lainfesta v.

Greiner, 535 U.S. 1019 (2002). See also Caplin Drysdale, Chartered v. United

States, 491 U.S. 617, 624 (1989) (acknowledging “defendant’s right ‘to select and

be represented by one’s preferred attorney’ ”) (quoting Wheat v. United States, 486

U.S. 153, 159). The issue is that without the government disclosing to the media

that Mr. Fattah was under criminal investigation, Mr. Fattah would not have

!30


suffered devastating financial losses over the past three years totaling at least

$432,000 ($144,000 annual contract). Those funds could have been used to pay for

the counsel of “choice.”

This Court has said “[d]eliberate misconduct is targeted for extra deterrence

because we expect willful misbehavior to be the most effectively deterred by

enhanced penalties.” Gov. of the Virgin Islands v. Fahie, 419 F.3d 249, 254 (3d Cir.

2005) (citing Nat. Hockey League v. Met. Hockey Club, Inc., 427 U.S. 639, 643, 96

S.Ct. 2778, 49 L.Ed.2d 747 (1976) (“[T]he most severe in the spectrum of

sanctions provided by statute or rule must be available to the district court in

appropriate cases, not merely to penalize those whose conduct may be deemed to

warrant such a sanction, but to deter those who might be tempted to such conduct

in the absence of a deterrent”). Further, this Court said “[a] pattern of constitutional

violations may be used to show recklessness on the part of the prosecutor” (citing

Sample v. Diecks, 885 F.2d 1099, 1117 (3d Cir. 1989) (“The existence of a pattern

of constitutional violations may provide a basis for implying deliberate

indifference.”) See Wehr v. Burroughs Corp., 619 F.2d 276, 282 (3d Cir. 1980)

(“only three degrees of culpability are associate with the term ‘willful’: intentional,

knowing, or reckless”). Mr. Fattah contends that the government’s conduct in this

case — namely the violations of Mr. Fattah’s Fifth and Sixth Amendment rights

amounts to a pattern of constitutional violations — at the very least shows reckless

if not knowing and intentional action by the United States. Mr. Fattah notes that the

!31


right to choice of counsel and the ability to mount a defense are distinct rights

under the Sixth Amendment.

The district court for the southern district of New York said “[f]urther, the

government’s interference in the KPMG Defendants’ ability to mount a defense

‘creates an appearance of impropriety that diminishes faith in the fairness of the

criminal justice system in general.” United States v. Stein, 435 F. Supp. 2d 330, 372

(S.D.N.Y. 2006) (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S.

787, 811 (1987); see also Offutt v. United States, 348 U.S. 11, 14 (1954))

(“[J]ustice must specify the appearance of justice.”). The same is true here, the

government’s actions were improper and damage the criminal justice system as a

whole, not just in this case. The Supreme Court made clear 80 years ago that “our

system of administration suffers when any accused is treated unfairly.” Berger v.

United States, 295 U.S. 78, 88 (1935). Mr. Fattah was treated unfairly in this case,

and denied the specific procedural protection guaranteed under the Counsel Clause.

Gonzalez-Lopez, 126 S.Ct. at 2562. This Court should take appropriate action.

Accordingly, this Court should find that there was a violation of the Sixth

Amendment right to choice of counsel and the ability to mount a defense in this

case. This Court should exercise pendant appellate jurisdiction over the Due

Process and Sixth Amendment claims above, in conjunction with the portions of

this appeal properly under review through the collateral-order doctrine. In the

!32


alternative, this Court should review the claims as a writ of mandamus or exercise

its supervisory authority.

The Court’s exercise of pendant appellate jurisdiction would be proper

because Mr. Fattah contends there is a pattern of constitutional violations by the

government. This includes the claims below under the Grand Jury Clause.

STANDARD OF REVIEW


C. The prosecutor was an unsworn witness before the grand jury and interfered with the independence of the grand jury investigation.

The grand jury in this matter was interfered with while attempting to ask

witnesses questions. A witness, Ms. Thompson, was told by the prosecutor “Why

don’t you step out the door, please, so I can listen to their questions and then I will

ask you to come back in?” DDE 85, p.4. No grand jury testimony excerpt was

disputed below by the government. The prosecutor then asked Ms. Thompson 15

questions in his own words, rather than letting the grand jurors ask the specific

questions they wanted. The few direct questions the prosecutor allowed Ms.

Thompson to ask, the prosecutor interrupted the questions and answered others.

After one grand juror asked Ms. Thompson two questions, the prosecutor stated

“Wait a second. That question assumes that there was a budget created by [Person

1] and passed out to all of the employees.” That was unsworn testimony by the

prosecutor.

!33


After the grand juror limited the scope of the question, by stating “No, not to

all of the employees; just to folks like yourself,” the prosecutor again answered the

jurors question posed to Ms. Thompson by stating “She was an employee.” DDE

85, p.5. AUSA Paul L. Gray, acted before the grand jury as both the prosecutor, and

as an unsworn witness. Further, the grand jury should have been able to directly

ask any question of Ms. Thompson, or any grand jury witness, as part of the

traditional functioning of the grand jury as an independent body separate from the

prosecutor.

When a grand juror was questioning Mr. Braxton, a former bank official, the

prosecutor said “Hold on. Let’s take a step back.” DDE 34, p.269. This interfered

with the line of questioning by the grand jury. Further, the prosecutor interrupted a

grand juror’s question to Mr. Braxton, stating “[y]our question assumes that he

learned everything that we talked about here in the Grand Jury about how the

money went. Do you understand?” DDE 34, p.271.

Another grand jury witness, Dr. Bean, was asked by AUSA Gray to “step

outside” after testifying before the grand jury for nearly an hour. When Dr. Bean

returned, AUSA Gray asked him the questions, instead of allowing the grand jurors

to ask questions in their own words and about any material subject matter pertinent

to the investigation. As argued before the district court, “[i]t is unclear from the

[grand jury] transcript whether the grand jurors informed AUSA Gray that they had

5 questions, or 25 questions. AUSA Gray was then able to characterize those

!34


questions however he saw fit. AUSA Gray was further able to omit any questions

or rephrase any questions he though would not help him secure the indictment by

leading to favorable testimony about [Mr.] Fattah. That conduct was

inappropriate.” DDE 85, p.6. Mr. Fattah submits that the grand jury, as a

investigative body, has the unequivocal right to ask questions to witnesses before

the grand jury without hinderance or interference by the prosecutor.

The unsworn statements by AUSA Gray before the grand jury constitutes

unsworn testimony. Such testimony from an AUSA is generally disfavored because

it has a tendency to “unduly influence the grand jury.” Sara Sun Beale & William

C. Bryson, Grand Jury Law and Practice § 10.04 (1986); See also United States v.

Birdman, 602 F.2d 547, 551 (3d Cir. 1979) (“[W]e condemn in principle this

practice of serving as both prosecutor and witness.”). The grand jurors would be

prone to accept the AUSA’s testimony without question both because of his

professional expertise, see Birdman, 602 F.2d at 533, and because of the charge the

jurors receive before they serve. Notably the grand jurors are told by the judge that

“[i]f past experience is any indication of what to expect in the future, then you can

expect candor, honesty and good faith in matters presented by the government

attorneys.” Federal Judicial Center, Bench Book for United States District Court

Judges § 3.02 at 13–14 (3d ed.1986). An AUSA testifying informally and unsworn

to a grand jury therefore has the potential of overbearing the grand jury.

!35


The fundamental concept underlying the Fifth Amendment guarantee is that

in order for an indictment to be recognized as actually issuing from a grand jury, it

must be the product of an investigative body that is independent of the prosecuting

attorney. See United States v. Williams, 504 U.S. 36, 49, 112 S.Ct. 1735, 1743, 118

L.Ed.2d 352 (1992) (“recognizing [the] tradition of independence [of the grand

jury], we have said that the Fifth Amendment’s constitutional guarantee

presupposes an investigative body acting independently of either prosecuting

attorney or judge.”) (emphasis in original) (internal quotation marks and citations

omitted); United States v. Dionisio, 410 U.S. 1, 18, 93 S.Ct. 764, 773, 35 L.Ed.2d

67 (1973) (finding that a grand jury “must be free to pursue its investigations

unhindered by external influence”); Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct.

1364, 1373, 8 L.Ed.2d 569 (1962) (recognizing “[t]he necessity to society of an

independent and informed grand jury”); John Roe, Inc. v. United States (In re:

Grand Jury Proceedings), 142 F.3d 1416, 1425 (11th Cir. 1998) (explaining that

although a grand jury relies on the judiciary when it seeks subpoenas or contempt

sanctions, it “performs its investigative and deliberative functions independently”).

Without a guarantee of independence to investigate, for instance, by asking

witnesses questions, the indictment would not be the genuine issue of a grand jury

within the meaning of the Constitution. Further, under the authority of the

Constitution, a Court may dismiss an indictment if the Court finds government

conduct “significantly infringe[d] upon the grand jury’s ability to render

!36


independent judgement” so that the indictment is not, in reality, that of the grand

jury, and, thus, a constitutionally mandated indictment is absent. United States v.

Larrazolo, 869 F.2d 1354, 1357 (9th Cir. 1989); See also United States v.

McKenzie, 678 F.2d 629, 631 (5th Cir. 1982).

In Birdman, this Court said “…defendants have not shown that the conduct

of which they complain added substantive matters or was anything but an isolated

incident unmotivated by sinister ends. A later case might require a different result.”

(emphasis added) Id., 602 F.2d 547, at 55. Mr. Fattah contends that this is the later

case which suggests a different result is appropriate. In Birdman, this Court

determined that there was only procedural testimony, not related to the substance

of the grand jury investigation. That is not the case here.

As this Court said in Birdman, “[t]he professional impropriety of assuming a

dual role as advocate and witness has long been acknowledged by both the English

and American bars. . . . While the above-cited reasons for the advocate-witness rule

all reflect a policy of avoiding the slightest risk of prejudice to defendants, the

most frequently cited justification for the rule reflects a broader concern for public

confidence in the process of justice . . . Particularly where the lawyer in question

represents the prosecuting arm of the Government, the ethical rule serves to

implement the maxim that ‘justice must satisfy the appearance of justice.’ This

function of preserving public trust may be especially necessary in proceedings of

the grand jury, which more than a few critics have characterized as a mere tool of

!37


prosecutors.” Id. at 24–36. This Court said “[f]urthermore, the justifications cited

for the rule are as pertinent to grand jury proceedings as they are to trail before

petit juries, where the rule is most often visible . . .[citing Commentary to ABA

3.5(b)] ‘A prosecutor should not, however, take advantage of his role as the ex

parte representative of the state before the grand jury to unduly or unfairly

influence it in voting upon charges brought before it. In general, he should be

guided by the standards governing and defining the proper presentation of the

states’s case in an adversary trial before a petit jury.” Id. at 37–40.

Mr. Fattah respectfully submits that the above is one issue which implicates

the “right not to be tried” under the Grand Jury Clause. This issue allows for an

interlocutory appeal under the collateral order doctrine because it is “so

fundamental that it causes the grand jury no longer to be a grand jury, or the

indictment no longer to be an indictment . . . .” Midland Asphalt Co. v. United

States, 489 U.S. 794, 802 (1989); United States v. Wright, No. 13-1766, 2015 WL

106198, — F.3d — (3d Cir. Jan. 8, 2015).

STANDARD OF REVIEW


D. Mr. Fattah’s Fifth Amendment right to an unbiased grand jury was violated.

This Court, in United States v. Serubo, 604 F.2d 807 (3d Cir. 1979), said “In

federal criminal proceedings, the right to indictment by an unbiased grand jury is

!38


guaranteed by the fifth amendment. (citing Costello v. United States, 350 U.S. 359

(1956)). When the framers of the Bill of Rights placed that requirement in the fifth

amendment, ‘they were not engaging in a mere verbal exercise.’ (citing United

States v. Estepa, 471 F.2d 1132, 1136 (2d Cir. 1972). The fact that grand jury

proceedings are secret, Ex parte and largely under the control of the federal

prosecutor, magnifies this concern. Aware of the potential for abuse inherent in

grand jury proceedings, this court and others have increasingly exercised our

supervisory power over the administration of justice to regulate the manner in

which grand jury investigations are conducted.’ ” Id. at 60.

Mr. Fattah argued before the district court that he has the right, under this

Court and “Supreme Court precedent to an ‘unbiased grand jury.’ ” DDE 60, p.43–

46. The prosecutor asked a grand jury witness, Ms. Smith, about an interview Mr.

Fattah gave to Forbes and his civil lawsuit against the IRS and United States. DDE

60, p. 44. (“AUSA: Let me step back. He sent you a media clip? Ms. Smith: Yes;

AUSA: What is that? Ms. Smith: A copy of the Forbes article that he did, the

Forbes interview that he did regarding the case and him suing the IRS. It was a

media clip, just a copy of the interview.”).

As argued before the district court, on the same day before the grand jury, a

grand juror asked another witness the following: “Can you give a brief time line of

when the investigation began, the Search Warrants, and the time that [Mr. Fattah]

!39


filed the suit against the IRS?” DDE 60, p.44. See DDE 60, p.293 (grand jury

transcript).

Mr. Fattah contends that it is possible the grand jury was biased due to the

pending lawsuit against the United States seeking millions of dollars in damages.

Mr. Fattah noted in the district court filing that “the grand jurors pay taxes and

hence, the government’s potential taxpayer funded losses against [Mr.] Fattah in

the civil suit could reasonably have inflamed and biased the grand jury to be

prejudiced against [Mr.]Fattah . . . [Mr.] Fattah also notes that the government’s

defense costs in that lawsuit are paid by taxpayer money. This is another reason the

grand jury should have been polled, as an example, about whether they could

separate any biased concerns they may hold from their obligation to evaluate the,

at the time, proposed indictment.” DDE 60 p.44–45.

Mr. Fattah noted “that he has a First Amendment right to file a lawsuit in

Federal Court seeking damages for losses against any entity, including the United

States, and its agencies. [Mr.] Fattah has the right to ‘petition the government for a

redress of grievances’ . . . [Mr.] Fattah also notes that he has a First Amendment

right in the freedom of speech to write [or speak to] a publication such as Forbes.”

DDE 60, p.45.

The district court’s memorandum opinion denying the motion raising this

issue, DDE 98, did not address the First Amendment right to petition the

government for a redress of grievances or freedom of speech arguments.

!40


Second, the government further biased the grand jury against Mr. Fattah by

referencing media stories that did not occur prior to the media leak on February 29,

2012. As argued before the district court, the prosecutor elicited false testimony

before the grand jury about purported media stories between 2009–2011. DDE 85,

p.7. The prosecutor asked Ms. Salter “[w]ere you aware at the time you weren’t

available to do that [accounting service] that Mr. Fattah had problems with banks,

not paying loans back and had credit card problems, not paying credit cards back,

that kind of thing?,” to which Ms. Salter responded “[w]ell, it was on the news. I

don’t know - - Again, I’m not sure of the time frame, but it did hit the news.” DDE

85, p.7.

The news stories Ms. Salter was referencing occurred after the media leak in

February 2012, however, she is being asked about accounting services in 2010–

2011. By giving the grand jury the impression that news stories had run detailing

Mr. Fattah’s purported financial issues, it left the grand jury with the false notion

that independent investigations had been performed by credible news

organizations. This was irrelevant and highly prejudicial testimony. The prosecutor

and witness lead the jurors to believe that a respectable news investigation had

been conducted and had reached the conclusion that Mr. Fattah was potentially

engaged in fraudulent activity. For instance, Mr. Fattah is not facing any charges

related to not paying a credit card bill, but the prosecutor’s question suggests that

Mr. Fattah has done something improper related to credit cards.

!41


Third, the government biased the grand jury against Mr. Fattah by

suggesting incorrectly that Mr. Fattah has been sued by SugarHouse casino. DDE

85, p.13. Mr. Fattah was, in fact, never a party to any lawsuit by the casino. Mr.

Fattah argued that other testimony and questions by the prosecutor were prejudicial

and may have biased the grand jury in this matter. DDE 85, p. 10–16. This

included false testimony about a purported $40,000 debt to Drexel University, for

example. This further includes irrelevant questions about whether Mr. Fattah ever

received a complimentary service (“comp”) at SugarHouse and whether or not Mr.

Fattah was counting cards, in other words cheating, at casino table games.

Moreover, the government presented perjured testimony of at least four

witnesses to the grand jury which infringed upon the grand jury’s independent

judgment. Mr. Amato, Mr. Braxton, FBI Agent Haag, and IRS Agent Scheffer

perjured themselves before the grand jury. DDE 34. Mr. Fattah presented

documentary evidence firmly establishing the perjured statements. DDE 34,

exhibits. Further, Mr. Amato gave sworn testimony before the bankruptcy court of

the Eastern District of Pennsylvania which directly contradicted his testimony

before the grand jury in this matter. Mr. Fattah provided a website link in his filing,

allowing the Court to access the file to listen to Mr. Amato’s testimony. DDE 34, p.

15 (dropbox link). Mr. Fattah also provided as an exhibit before the district court,

the grand jury testimony of Mr. Amato and Mr. Braxton. DDE 34, exhibits.

!42


As the Ninth Circuit said in Northern Mariana Islands v. Bowie, 243 F.3d

1109, 1114 (9th Cir. 2001), “[b]ecause of the gravity of depriving a person of

liberty on the basis of false testimony, the Supreme Court and U.S. Courts of

Appeals have fashioned over the years a workable set of precise rules designed not

only to remedy egregious wrongs that have already occurred, but also

prophylactically to prevent damaging false testimony from happening in the first

place.” (emphasis added) Id. (cited in DDE 60, footnote 24). “The [Supreme]

Court rejected this cramped view of the guarantee, saying that due process: ‘cannot

be deemed to be satisfied by mere notice and hearing if a state has contrived a

conviction through the pretense of a trial which in truth is but used as a means of

depriving a defendant of liberty through a deliberate deception of court and jury by

the presentation of testimony known to be perjured. Such a contrivance by a state

to procure the conviction and imprisonment of a defendant is inconsistent with the

rudimentary demands of justice…And the action of prosecuting officers on behalf

of the state … may constitute state action within the purview of the Fourteenth

Amendment.’ ” Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1115 (9th Cir.

2001) (citing Mooney v. Holohan, 294 U.S. 103, 112–13, 55 S.Ct.340, 79 L.Ed.

791) (1935).

The Supreme Court has said an individual prosecutor has “a duty to learn of

any favorable evidence known to the others acting on the government’s behalf in

the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct.

!43


1555, 131 L.Ed.2d 490 (1995). The documents supporting the notion there was

perjured testimony are documents provided by the government during the

discovery process, so there is no dispute about their authenticity. Since the

documents were in the government’s possession prior to the charges being filed on

July 29, 2014, the prosecutor cannot suggest that he was unaware of the facts

shown by those documents. See United States v. Samango, 607 F.2d 877, 883

(“The [grand jury testimony] transcript consisted of testimony given nearly two

years earlier…Since his testimony was in written form, the prosecutor obviously

knew before he presented it exactly what it contained.”). Further, the Ninth Circuit

in Samango said “[i]f evidence exists, however, which casts serious doubt on the

credibility of testimony which the [grand] jurors are asked to rely upon in finding

an indictment, the prosecutor has an ethical duty to bring it to their attention.” Id.

at 885 n.8. (citing 8 Moore’s Federal Practice ¶ 6.03[2], at 6–41 (2d ed. 1978).

The government had significant evidence, in the form of Mr. Amato’s sworn

testimony, and other documentary evidence such as application related documents

concerning Mr. Braxton and United Bank, which casted “serious doubt on the

credibility” of the witnesses testimony. However, in this case the prosecutor

ignored their ethical obligation to inform the grand jury.

STANDARD OF REVIEW


!44


E. The indictment is a product of the prosecutor, not the grand jury.

In United States v. McKenzie, 678 F.2d 629, 631 (5th Cir. 1982), the Fifth

Circuit said “we will dismiss an indictment only when prosecutorial misconduct

amounts to overbearing the will of the grand jury so that the indictment is, in

effect, that of the prosecutor rather than the grand jury.” (emphasis added) Id. at 3.

It is for the grand jury to decide what facts the evidence would support, and

what type of charge, if any, the evidence would support. In this case, the prosecutor

elicited testimony of an FBI Agent on the final session day before the grand jury

suggesting that the grand jury was not given proper time to consider the evidence

in this matter.

On July 29, 2014, FBI Agent Richard J. Haag was the final witness before

the grand jury.

Prosecutor: “All right. Agent Haag, first, in preparing the proposed

indictment we determined, am I correct, that we would propose some wire fraud

counts concerning Chaka Fattah, Jr.?”

Agent Haag: “Correct.”

Mr. Fattah argued to the district court that “the grand jury did not determine

they wanted to add wire fraud counts, but that AUSA Gray and FBI Agent Haag

made that determination ‘in preparing the proposed indictment’. As AUSA Gray

said ‘we determined, am I correct’. Of course, [the AUSA] did not say the grand

jury ‘determined’ or asked the United States to include those charges. Since this

!45


was the United States last opportunity before the grand jury expired, the[] [AUSA]

decided to add these charges when the grand jury would have the least amount of

time to review the evidence to independently determine probably cause,

independent of the prosecutor. The “wire fraud” charges were discussed with the

grand jury for the first and only time on July 29, 2014, which was the last day

before the grand jury. The discovery shows as much. Fattah has thirty-two (32)

transcripts from testimony before the grand jury. Only the Agent Haag transcript

from July 29, 2014 says “wire fraud” in the 847 pages of transcripts.” DDE 85, p.

16–17. The accuracy of this grand jury testimony was not disputed by the

government.

Further, the Grand Jury was encouraged to accept the FBI Agent’s

determination of the accuracy of the indictment, instead of completing their own

investigation.

On July 29, 2014, FBI Agent Richard J. Haag was the final witness before

the grand jury.

Prosecutor: “There’s substantial information in here concerning the times

and dates of a variety of bank loans, business lines of credit, information

concerning both DVHS, Unique Educational Experience, and Chaka Fattah [Jr.]’s

business entities. To the best of your view of the evidence we presented to the

Grand Jury, does this indictment correctly portray the evidence the Grand Jurors

have heard concerning the various proposed counts in the indictment?”

!46


Agent Haag: “Yes, it does.”

Mr. Fattah argued to the district court that “the grand jury has a duty to

review all the evidence and ensure that the evidence matches up to the charges in

the proposed indictment. The above question by AUSA Gray and answer by FBI

Agent Haag is suggesting that the grand jury should take Agent Haag’s word for

the idea that the language in the indictment is accurate, instead of conducting its

own careful investigation.” DDE 85, p.8–9.

Mr. Fattah respectfully submits that the above is one issue which implicates

the “right not to be tried” under the Grand Jury Clause. This issue allows for an

interlocutory appeal under the collateral order doctrine because it is “so

fundamental that it causes the grand jury no longer to be a grand jury, or the

indictment no longer to be an indictment . . . .” Midland Asphalt Co. v. United

States, 489 U.S. 794, 802 (1989); United States v. Wright, No. 13-1766, 2015 WL

106198, — F.3d — (3d Cir. Jan. 8, 2015).

This Court made clear in United States v. Serubo, 604 F.2d 807 (3d Cir.

1979) that prosecutorial conduct before the grand jury must adhere to the American

Bar Association Standards Relating to the Prosecution Function. “In particular, [the

prosecutor] acted inconsistently with Standard 3.5(b), Relations with Grand Jury,

admonishing that ‘[the prosecutor] should give due deference to (the grand jury’s)

status as an independent legal body,’ and that he ‘should not make statements or

!47


arguments in an effort to influence the grand jury action in a manner which would

be inadmissible at trial before a petit jury.’ ” Id. at 66.

The prosecutor in this matter made several statements and arguments that

would be inadmissible at trial before the grand jury. For example, the prosecutor

asked IRS Agent Scheffer to speculate before the grand jury about how much

income Mr. Fattah allegedly received. DDE 63, p. 6, 16.

As argued to the district court, even if Mr. Fattah received a bank transfer,

that, standing alone, does not constitute income. Taxable income does not include

gifts, loans, business income that is refunded to the customer, or used to reimburse

expenses paid on behalf of the customer. However, the IRS Agent did not inform

the grand jury of the various forms of receipt of money that do not qualify as

income. The prosecutor’s leading question was “Okay. Explain to the Grand Jurors

what income we believe [Mr.] Fattah[] had in 2005 which should have been

reported.” Further, the word “income” means profit, not revenue as it relates to a

business. The taxable income is calculated after business expenses are first

deducted from any sales revenue.

II. THE ORDER DENYING DISCLOSURE OF INFORMATION RELATED TO THE GRAND JURY SHOULD BE REVERSED

The district court clearly abused its discretion in denying the motion to

compel disclosure of information related to the grand jury. DDE 97. The order

denied the release of a copy of the grand jury extension document and a request for

!48


the grand jury number from the United States. Since the grand jury number was

used for more than two years by the United States, specifically in subpoenas in

May 2012, and May 2014, Mr. Fattah suggested that the grand jury number was

necessary to determine if the grand jury existed beyond the 18 months a grand jury

may exist, even considering a six month extension. DDE 69, 95. This argument

was made in the motion to compel disclosure. DDE 69. The government did not

oppose a copy of the order being provided by the Court, but appeared to not follow

local rules regarding the use of a grand jury number. DDE 94. Specifically, the

government suggested that there is no identifying grand jury number. DDE 94, p.

3–4. ([Mr.] “Fattah also requests additional information which, apparently, comes

from a misunderstanding of the grand jury system.).

As argued before the district court, Local Criminal Rule 6.1 appears to

require a “numerical designation of the matter” before the grand jury, with samples

such as “80-4”, and “In:Re: Grand Jury Matter (Calendar Year); (Numerical

Designation of the matter).” DDE 95, p.2, 14. The district court order also ignores

this Court’s precedent permitting disclosure in the absence of “specific or

substantive reasons [that] militate against disclosure.” In re Grand Jury

Investigation (DiLoreto), 903 F.2d 180, 182, 184 (3d Cir. 1990). Mr. Fattah also

offered to enter into a protective order regarding any aspects of the extension order.

DDE 95, p.1.

!49


Mr. Fattah cites the following for the proposition that an order denying

disclosure of information related to the grand jury can be addresses as a writ of

mandamus.

The First Circuit has said “[w]ere a district court clearly to misinterpret the

limitation of Rule 6(e) or plainly abuse its discretion thereunder either in ordering

or denying disclosure[], mandamus is likely to lie.” In re Grand Jury Proceedings,

580 F.2d 13, at 11 (1st Cir. 1978) (citing In re United States, 565 F.2d 173 (1st Cir.

1977); In re Melvin, 546 F.2d 1 (1st Cir. 1976); United States v. U.S. Dist. Ct., 444

F.2d 651 (6th Cir. 1971), Aff’d, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752

(1972).

Accordingly, Mr. Fattah requests this Court reverse the district court’s order

denying the motion to compel disclosure of information under collateral-order

jurisdiction. Midland Asphalt Co., 489 U.S. at 802. The grand jury would “no

longer [] be a grand jury” as meant in the constitution, depending on whether it

was properly sitting on July 29, 2014. In the alternative, this Court can review this

issue under either a writ of mandamus, or this Court’s supervisory authority over a

local rule of practice and procedure.

STANDARD OF REVIEW


!50


III. DUE PROCESS REQUIRES MUCH MORE THAN THE DISTRICT COURT DID IN THIS CASE IN RESPONSE TO MR. FATTAH’S PARTICULARIZED CLAIMS

A. The fundamental requirement of due process is the opportunity to be

heard at a meaningful time and in a meaningful manner.

It is well-established that the “fundamental requisite of due process of law is

the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394 (1914)

(citations omitted). The hearing must be “at a meaningful time and in a meaningful

manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Mr. Fattah submits that

an evidentiary hearing should have been granted in this case, after the filing of the

motion to dismiss and reply brief. DDE 34, 60. Mr. Fattah contends that the denial

of an evidentiary hearing in this case amounted to a denial of due process. Simply,

without the opportunity to present all evidence related to the claims that were

made, the district court’s ruling (DDE 98) was not based on all the evidence that

was available. Further, certain testimonial evidence could not be obtained without

an evidentiary hearing.

Mr. Fattah created genuine issues of material fact with respect to the

perjured testimony by Mr. Braxton, Mr. Amato, FBI Agent Haag and Mr.

McCarthy. DDE 34, DDE 98, p.4–6. The district court’s order says Mr. “Fattah’s

position simply rests on a contrary recollection of the facts and on contrary

inferences that may be drawn from the documentary evidence.” DDE 98, p.6.

!51


Further, the order says “[i]n challenging Amato’s grand jury testimony, [Mr.]

Fattah relied mainly on his own version of events.” DDE 98, p.4.

B. This Court should, in the alternative, remand to a different district judge

under 28 U.S.C. § 2106.

This Court has authority under 28 U.S.C. § 2106 to reassign this case to

another district judge. Mr. Fattah respectfully requests that if this Court does not

order the indictment to be dismissed, that this Court exercise its authority for

reassignment. This Court has recognized that the supervisory power of

reassignment under § 2106 is not “necessarily constrained” by the limitation

lending against reassignment based on alleged bias in judicial rulings. United

States v. Bergrin, 682 F.3d 261, 282 (3d Cir. 2012). This Court “ha[s] typically

reviewed requests for reassignment under § 2106 ‘under an ‘appearance of

impartiality’ standard’ like that applicable in the § 455(a) context. Id., F.3d at 282.

(citing United States v. Bertoli, 40 F.3d 1384, 1414). This Court has further

recognized that exercising supervisory power to reassign a case is appropriate

when “the conduct and comments of the trial judge … ma[d]e it exceedingly

difficult to resurrect an appearance of impartiality.” Gov’t of the V.I. v. Walker, 261

F.3d 370, 376 (3d Cir. 2001) (cited in Bergrin at 282.).

The district court had no discretion to disregard the “totality of

circumstances” test required by this Court’s precedent as it relates to the

voluntariness of a statement under the Due Process Clause. “A statement is given

!52


voluntarily if, when viewed in the totality of the circumstances, it is the product of

an essentially free and unconstrained choice by its maker.” United States v. Jacobs

, 431 F.3d 99, 108 (3d Cir. 2005) (citing Schneckloth v. Bustamante, 412 U.S. 218,

225 (1973), and United States v. Swint, 15 F.3d 286, 289 (3d Cir. 1994)). The

district court’s ruling (DDE 98) does not explain how the “totality of the

circumstances” balanced in the government’s favor in this case, even though Mr.

Fattah contended that he was promised both prior to and during the meetings that

all conversations would be kept confidential. DDE 98, p.14 (“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…”). The district

court was unaware that Mr. Fattah was told the FBI agent was a school district

employee. Hence, the school district’s other employees told Mr. Fattah the

conversations would be kept confidential and used to determine a whistleblower

award. Further, this Court said in Jacobs that “a promise may often be ‘the most

significant factor in assessing the voluntariness of an accused’s confession in light

of the totality of the circumstances.’ ” Id. (citing United States v. Walton, 10 F.3d

1024, 1030 (3d Cir. 1993)). Moreover, Mr. Fattah’s averments were supported by a

sworn affidavit. DDE 60, p. 360. (“I, through reference, affirm that I can

competently testify as to all matter stated and referenced in the Motion[] [DDE]

34, and the Reply Brief [DDE 60].”). The government proffered no affidavit and

no other evidence.

!53


The district court’s ruling (DDE 98) says that “[r]elevant factors include any

level of police coercion, its location, its continuity, the defendant’s maturity,

education, physical condition, and mental health.” DDE 98, p.14. However, the

district court’s ruling makes no mention of how these other factors weigh in the

government’s favor. It was undisputed that the school district interviews took place

in their building and lasted several hours. There was no argument or showing

whatsoever by the government about the defendant’s education, or maturity

weighing in the government’s favor.

In Jacobs, this Court said “[a] promise by a law enforcement officer may

qualify as coercion.” Id., 431 F.3d at 109. (citing United States v. Walton, 10 F.3d

1024, 1030 (3d Cir. 1993); United States v. Conley, 859 F. Supp. 830, 836 (W.D.

Pa. 1994)). The district court does not explain why the promises in this case did not

qualify as coercion.

The district court correctly acknowledged that the “Government must prove

voluntariness by a preponderance of the evidence.” DDE 98, p. 14. The district

court, without taking any evidence, in the form of testimony or affidavits by the

government completely failed to hold the government to its burden of proof. As

Judge Bright said in a concurring and dissenting opinion in United States v. Wecht,

484 F.3d 194 (3d Cir. 2007) “[i]t is a hallmark of partiality for one party not to be

put to its burden.” Wecht, 484 F.3d at 231. The government was not put to its

!54


burden on the issue of voluntariness, which is an issue of constitutional

significance.

For similar reasons, the district court’s ruling does not consider this Court’s

precedent as it relates to a potential Miranda violation as it relates to the school

district statements. The Third Circuit said “this does not necessarily mean that

Jacobs knew she was the target of a criminal investigation and subject to possible

prosecution at the time of the April statements. That Jacobs continued to act as an

informant rather than a suspect throughout that meeting and during the next day

(when she retrieved the suitcases from her home and led Agent Duffey to the safe

house) suggests that she did not know she was the target of a criminal investigation

and subject to possible prosecution at the time of her April statements.” Jacobs,

431 F.3d at 112.

Mr. Fattah argued to the district court that this factor weighed in favor of

concluding that the school district statements violated Miranda, in the alternative

to voluntariness. DDE 34, p.79–80. Mr. Fattah noted that he was sent an email by a

school district employee, Mr. Brennan, requesting documents related tot the

investigation and “[s]hortly thereafter, the documents Mr. Brennan requests were

provided by Fattah.” DDE 34, p.79.

Mr. Fattah noted that this Court in Jacobs, cited United States v. Kim, 292 F.

3d 969, 974 (9th Cir. 2002), for the proposition that “[i]n determining whether

suspects were ‘in custody’ for Miranda purposes, the Supreme Court has

!55


considered whether they voluntarily approached or accompanied law officers

understanding that questioning would ensue.” (emphasis in original) Jacobs, 431

F.3d at 106. DDE 34, p.80. The same is true here. The undisputed fact that Mr.

Fattah did not know he would be speaking with any FBI agent whatsoever

certainly would eliminate any doubt that this was a “voluntary approach” to a law

enforcement officer, under the Ninth Circuit case cited above in Kim.

!56


CONCLUSION

The order denying dismissal of the indictment should be reversed or this

case should be remanded with instructions to dismiss the indictment with

prejudice. As stated above, this Court should grant the Petition and grant a writ of

mandamus on the appropriate issues. In the alternative, the case should be

remanded with an order that: (1) the case be randomly reassigned to a different

district court judge; and (2) an evidentiary hearing be held on the claims set forth

in the motions on appeal.

Respectfully submitted,

/s/ Chaka Fattah, Jr. CHAKA FATTAH JR. Pro Se for Appellant 5783 Nassau Road Philadelphia, PA 19131 Phone: 215-301-8125 Email: [email protected]

!57



CERTIFICATE OF COMPLIANCE WITH RULE 32(a) and 31.1(c)

I certify that this brief complies with the type-volume limitation of Fed. R.

App. P. 32(a) allowing the appellant to file an opening brief of not more than

14,000 words. This brief is written in Times News Roman, a proportionally spaced

font, has a typeface of 14 points, and contains 13,999 words (as counted by Apple

Pages 5.5.2), excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)

(B)(iii).

I certify pursuant to LAR 31.1(c) that the text of the electronically filed

version of this brief is identical to the text in the paper copies of the brief as filed

with the Clerk. The antivirus program built into Google Gmail has been run against

the electronic (PDF) version of this brief before submitting it to this Court’s CM/

ECF system, and no virus was detected.


!58



CERTIFICATE OF SERVICE

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


!59



____________________________________________________________________________

UNITED STATES COURT OF APPEALSFOR 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 CourtFor the Eastern District of Pennsylvania

Case No. 2-14-cr-00409-001The Honorable Judge Harvey Bartle, III.

____________________________________

VOLUME ONE JOINT APPENDIX 3d Cir. L.A.R. 32.2(c) (2011)

____________________________________

Chaka Fattah, Jr., Pro Se5783 Nassau Road PHILA. PA, 19131

Telephone: 215-301-8125E-mail: [email protected]

Attorney for Defendant-AppellantChaka Fattah, Jr.

Dated: March 24, 2015____________________________________________________________________________


APPENDIX DOCUMENT LIST

1. Notice of Appeal, filed January 23, 2015 - DDE 101 - (2 pages) 2. Court Order, entered on January 22, 2015 - DDE 99 - (1 page) 3. Supporting Memorandum, entered on January 22, 2015 - DDE 98 - (21 pages)

4. Notice of Appeal, filed February 3, 2015 - DDE 123 - (2 pages) 5. Court Order, entered on January 21, 2015 - DDE 97 - (2 pages) 6. Court Order, entered on January 23, 2015 - DDE 103 - (2 pages) 7. Court Order, entered on February 2, 2015 - DDE 119 - (2 pages)


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 CHAKA FATTAH, JR., defendant in the above captioned

case, hereby appeals to the United States Court of Appeals for the Third Circuit from this

Honorable Court's Memorandum Opinion (Document No. 98) and accompanying Order

(Document No. 99) dated January 22, 2015.

Respectfully submitted, this 23rd day of January, 2015.

/s/ Chaka Fattah, Jr ..

CHAKA FATTAH, JR., PRO SE 5783 Nassau Road

Philadelphia, PA 19131 Phone:215-301-8125

Email: [email protected]

Case 2:14-cr-00409-HB Document 101 Filed 01/23/15 Page 1 of 2Case: 15-1260 Document: 003111912138 Page: 76 Date Filed: 03/24/2015





CHAKA FATTAH, JR.


IT IS HEREBY CERTIFIED that the foregoing NOTICE OF APPEAL this 23rd day

of January 2015, by filing the same via the Court's ECF system, which will send a notice of

filing to counsel of record:

AUSA Paul L. Gray Special AUSA Eric L. Gibson U.S. Attorney's Office 615 Chestnut St., Ste. 1250 Philadelphia, PA 19106

/s/ Chaka Fattah. Jr ..





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.





: : : : :

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.


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.

-2-


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).

-3-


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

-4-


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

-5-


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.

-6-


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,

462 F.2d 1205, 1213 (3d Cir.), cert. denied, 409 U.S. 914 (1972);

see also 24 Moore’s Federal Practice § 606.04[3] (3d ed. 2014).

Although Fattah cites Fourth Amendment cases relating to the

validity of warrants in arguing that the agent’s misstatements to

the magistrate judge were misconduct, see, e.g., Franks v. Delaware,

438 U.S. 154, 155-56 (1978), nowhere does he move the court to

suppress the evidence obtained from the execution of the warrant in

-7-


question. Fattah’s arguments with regard to the February 2012

search warrant are misplaced in this motion to dismiss the

indictment.

Even if we were to interpret Fattah’s motion as one to

suppress evidence illegally obtained on the basis of

misrepresentations made in the search warrant affidavit, his motion

would still be denied. Evidence must be suppressed when it is

seized pursuant to a warrant obtained through a material falsehood

made “either knowingly and intentionally or with reckless disregard

for the truth.” United States v. Brown, 631 F.3d 638, 641-42 (3d

Cir. 2011). Here, Fattah largely relies upon his own disagreement

with various assertions made in the supporting affidavit. Moreover,

what references Fattah does make to documentary record are merely

disagreements as to the inferences that are to be drawn from that

evidence. In short, there is simply no basis to conclude that the

Government improperly obtained the warrant through knowing,

intentional, or reckless misrepresentations to the magistrate judge.

Fattah also argues that the warrant is impermissibly

general. The Fourth Amendment requires that a warrant must

“particularly describ[e] the place to be searched, and the persons

or things to be seized.” U.S. Const. amend. IV; United States v.

Christine, 687 F.2d 749, 752 (3d Cir. 1982). A general warrant

violates this requirement by giving law enforcement license to go on

an unbridled search through a person’s home or property. United

-8-


States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and

Fifty-Seven Cents, 307 F.3d 137, 149 (3d Cir. 2002). Our Court of

Appeals has stated: “Examples of general warrants are those

authorizing searches for and seizures of such vague categories of

items as ‘smuggled goods,’ ‘obscene materials,’ ‘books, records,

pamphlets, cards, receipts, lists, memoranda, pictures, recordings

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

-9-


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

abroad,” “any papers reflecting names, addresses ... and/or telex

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

-10-


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

-11-


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,

-13-


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.

-14-


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

-15-


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.

-16-


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.

-17-


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

-18-


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,

-19-


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.

-20-


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.

-21-






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.

CHAKAFATDUi,JR., PRO SE 5783 Nassau Road








CHAKA FATTAH, JR.


IT IS HEREBY CERTIFIED that the foregoing NOTICE OF APPEAL this 3rd day of

February 2015, by filing the same via the Court's ECF system, which will send a notice of

filing to counsel of record:

AUSA Paul L. Gray Special AUSA Eric L. Gibson U.S. Attorney's Office 615 Chestnut St., Ste. 1250 Philadelphia, PA 19106


Philadelphia, PA 19131 Phone: 215-301-8125






: : : : :

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


the grand jury should be disclosed. The motion of the defendant is

therefore being denied.

BY THE COURT:


-2-





: : : : :

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.


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:


-2-





: : : : :

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.


(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:


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Opening Brief, Third Circuit

Documents

Transcript of Opening Brief, Third Circuit