March 7, 2017
Appeal from the United States District Court for the Eastern
District of Pennsylvania District Court No. 2-14-cr-00409-001
District Judge: The Honorable Harvey Bartle, III
L. Gibson [ARGUED] Paul L. Gray Office of United States
Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA
19106 Counsel for Appellee.
Fattah, Jr. [ARGUED] Philadelphia FDC 700 Arch Street P.O.
Box 562 Philadelphia, PA 19105 Pro Se Appellant.
C. Brotman  [ARGUED] Suite F200 150 North Radnor
Chester Road Radnor, PA 19087 Counsel for Court Appointed
Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit
February 29, 2012, law enforcement officers executed sealed
search warrants at the home and office of defendant Chaka
Fattah, Jr. The search occurred more than two years before
Fattah was indicted, but members of the press had somehow
learned about the investigation; several reporters waited at
Fattah's home to report the story. How did they find out?
At Fattah's trial, an FBI agent admitted that he had,
over the course of several months, disclosed confidential
information to a reporter in exchange for information
pertinent to the investigation.
argues that the FBI agent's conduct violated the Sixth
Amendment because the pre-indictment press caused him to lose
his job, which in turn rendered him unable to retain the
counsel of his choice. Fattah also argues that the
agent's conduct violated his Fifth Amendment right to due
process. We conclude that neither argument prevails. As the
Government concedes, the agent's conduct was wrongful. We
are unable, however, to conclude that Fattah is entitled to
also raises a number of additional claims regarding the
sufficiency of the indictment, constructive amendment of the
indictment, improper joinder of counts, and the particularity
of the search warrants. We reject those arguments as well.
Accordingly, we will affirm the judgment of the District
29, 2014, more than two years after the searches and media
coverage described above, a grand jury returned an indictment
charging defendant Chaka Fattah, Jr. with twenty-three
counts: one count of bank fraud, in violation of 18 U.S.C.
§ 1344; eight counts of making false statements to
obtain loans, in violation of 18 U.S.C. § 1014; one
count of making false statements to settle a loan, in
violation of 18 U.S.C. § 1014; three counts of making
false statements concerning loans insured by the Small
Business Administration, in violation of 18 U.S.C. §
1001; four counts of filing false federal income tax returns,
in violation of 26 U.S.C. § 7206; one count of failing
to pay federal income tax, in violation of 26 U.S.C. §
7203; one count of theft from a program receiving federal
funds, in violation of 18 U.S.C. § 666(a)(1)(A); four
counts of wire fraud, in violation of 18 U.S.C. § 1343;
and aiding and abetting, in violation of 18 U.S.C. § 2.
A grand jury returned a Superseding Indictment with minor
amendments on March 3, 2015.
charges fall into three basic categories.
first set of charges relate to Fattah's fraudulently
obtaining and failing to repay lines of credit. In applying
for lines of credit, Fattah represented to various banks that
his company, 259 Strategies, LLC, would use the money for
business purposes when in fact Fattah intended to use the
money for personal expenses like gambling debts, clothing,
jewelry, a BMW, and liquor. Fattah also failed to disclose
his outstanding debts and misrepresented facts about his
company's operational status and financials. Fattah
recruited his roommate, Matthew Amato, to make similar
misrepresentations to obtain additional lines of credit. The
Superseding Indictment also charges Fattah with making false
statements to avoid repaying some of the banks.
the Superseding Indictment charged Fattah with tax evasion.
Specifically, Fattah failed to report certain income from his
other businesses, including income from his sham concierge
service, American Royalty. For example, Fattah accepted $10,
000 from an eighteen-year-old after promising that American
Royalty would obtain an American Express black card for the
teenager. Fattah never did so; instead, he kept the money and
failed to report it as income.
third, the Superseding Indictment charged Fattah with
defrauding the Philadelphia School District
("PSD"). Fattah's company, 259 Strategies,
contracted with Delaware Valley High School
("DVHS"), a for-profit educational provider. Fattah
thereafter became DVHS's Chief Operating Officer. DVHS,
in turn, signed a $2.1 million contract with the PSD to run
the "Southwest" school for troubled students.
Through his position at DVHS, Fattah submitted fraudulent
budgets to the PSD that requested funding for nonexistent
jobs and unperformed services. All told, the PSD overpaid
$940, 000 over a two-year period, and Fattah personally
pocketed part of that sum.
declined representation from the Federal Community Defender
Office for the Eastern District of Pennsylvania and has
proceeded throughout this litigation pro se. Before
trial began, Fattah filed a motion to dismiss the indictment.
Among other accusations, Fattah alleged that the Government
had leaked confidential information about the investigation
to the press. Fattah argued, inter alia, that the
Government's conduct violated his Fifth and Sixth
Amendment rights. The District Court denied the motion,
concluding that there was no evidence of a leak.
commenced on October 15, 2015. On October 27, the FBI agent
in charge of the investigation testified that he did in fact
leak confidential information to a reporter in exchange for
background information about the PSD. The agent explained
that he had revealed the existence of sealed search warrants,
provided the time and location of the search, discussed the
content of undercover recordings, and gave specific
information about Fattah's business dealings, including
the amount of money he had been paid through his work.
the agent's testimony, Fattah (through standby counsel)
moved for a hearing to determine whether the Government
violated grand jury secrecy or its obligations under
Brady v. Maryland, 373 U.S. 83 (1963). The District
Court denied the motion.
November 5, 2015, a jury found Fattah guilty on all counts
except one (Count 17, filing a false income tax return for
the year 2009). On February 2, 2016, the District Court
sentenced Fattah to serve sixty months' imprisonment and
five years' supervised release, and to pay $1, 172, 157
in restitution plus a special assessment fee of $2, 125.
Fattah timely appealed. By Order dated January 23, 2017, the
Court appointed Ellen C. Brotman as Amicus Curiae on behalf
begin with Fattah's claims that the FBI agent's
conduct violated Fattah's Sixth Amendment right to the
counsel of his choice and violated his Fifth Amendment right
to due process. We reject both arguments.
reaching the merits of the Fifth and Sixth Amendment issues,
we must first address the issue of waiver. We will not
enforce waiver against either party.
is well settled that arguments asserted for the first time on
appeal are deemed to be waived and consequently are not
susceptible to review in this Court absent exceptional
circumstances." United States v. Rose, 538 F.3d
175, 179 (3d Cir. 2008) (quoting United States v.
Lockett, 406 F.3d 207, 212 (3d Cir. 2005)). When
reviewing a district court's ruling on a pretrial motion,
including a motion alleging "a defect in instituting the
prosecution, " Fed. R. Crim. P. 12(b)(3)(A), we will not
consider any unpreserved arguments absent "good cause,
" Fed. R. Crim. P. 12(c)(3); see United States v.
Joseph, 730 F.3d 336 (3d Cir. 2013); Rose, 538
F.3d at 182. This rule applies to criminal defendants and to
the Government alike. See, e.g., United States
v. Tracey, 597 F.3d 140, 149 (3d Cir. 2010) ("[T]he
Government waived this argument by failing to raise it before
the District Court.").
case reaches us in an unusual posture. Fattah properly raised
both his Fifth and Sixth Amendment claims in a pretrial
motion. But at that time, the Government did not know about
the leaks. It defended against Fattah's pretrial motion
by arguing that the presence of reporters was insufficient
evidence to justify an evidentiary hearing. The District
Court agreed. But at trial, the agent's testimony
confirmed Fattah's suspicion. With the assistance of
standby counsel, Fattah filed a new motion for a hearing. But
the new motion did not reraise the Fifth and Sixth Amendment
issues. As a result, neither the Government nor the District
Court substantively addressed those arguments.
the Government does not explicitly argue waiver, it still
complains that Fattah relies on "arguments that were not
presented to the district court at the appropriate time and
were never addressed by the district court." Resp. to
Amicus Br. 15. We nevertheless decline to enforce waiver
against Fattah because "requiring a defendant to
re-raise the issue[s] . . . would be an exercise in wasteful
formality." United States v. Sanders, 485 F.3d
654, 657 (D.C. Cir. 2007). And given the late-breaking
revelation of the agent's conduct, combined with
Fattah's failure to reraise the arguments, we conclude
that any waiver by the Government is excusable for good
proceed, then, to the merits.
Sixth Amendment claim is premised on a novel theory and a
long causal chain. The theory is that, even where the
government's misconduct was undisputedly not directed
towards attorneys' fees or intended to interfere with the
defendant's right to counsel, a defendant may establish a
Sixth Amendment violation by proving that the misconduct
reduced his pre-indictment income and thereby impaired his
ability post-indictment to hire the counsel of his choice. As
for the causal chain, Fattah asserts that the FBI agent spoke
to a reporter, which caused the publication of news stories
about Fattah, which in turn caused DVHS to terminate
Fattah's employment. According to Fattah, the unrealized
income from that employment-allegedly $432, 000 (plus
bonus)-was necessary for him to afford counsel of his choice.
Even if we were to accept Fattah's far-reaching theory,
we decline to remand for an evidentiary hearing because
Fattah's claim to unrealized income is contradicted by
his own undisputed statements and actions.
Sixth Amendment to the United States Constitution provides,
"In all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his
defence." U.S. Const. amend. VI. The Sixth Amendment
guarantees not only the right to effective assistance of
counsel, see, e.g., Buck v. Davis, 137
S.Ct. 759, 775 (2017), but also the "fair opportunity to
secure counsel of [one's] own choice, " Powell
v. Alabama, 287 U.S. 45, 53 (1932). "The right to
select counsel of one's choice . . . has been regarded as
the root meaning of the constitutional guarantee."
United States v. Gonzalez-Lopez, 548 U.S. 140,
147-48 (2006). The Sixth Amendment protects the
"fundamental" right "to be represented by an
otherwise qualified attorney whom that defendant can afford
to hire." Luis v. United States, 136 S.Ct.
1083, 1089 (2016) (plurality opinion) (citation omitted).
argue that the deprivation of income constitutes a Sixth
Amendment violation, Fattah principally relies on United
States v. Stein, 541 F.3d 130 (2d Cir. 2008). In
Stein, the accounting firm KPMG and several of its
employees were under federal investigation for allegedly
creating tax shelters for their clients. At the time, the
Department of Justice had a stated policy of considering
whether a corporation "appears to be protecting its
culpable employees" when deciding whether to bring
criminal charges against the corporation. Id. at
136. In a meeting with KPMG's counsel, the prosecutors
stated that they would take this policy "into
account" regarding KPMG's decision to pay its