Leaks Won’t Clear Ex-Congressman’s Convicted Son

PHILADELPHIA (CN) — Affirming the tax-fraud conviction of Chaka Fattah Jr., the son of a former congressman who shares his name and incarcerated status, the Third Circuit said a leak of the investigation to the press did not violate Fattah’s rights.

“Fattah 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,” Chief U.S. Circuit Judge D. Brooks Smith wrote for a three-judge panel.

“Fattah also argues that the agent’s conduct violated his Fifth Amendment right to due process,” the June 2 ruling continues. “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 relief.”

Two years before his 2014 arrest, when Fattah was chief operating officer of the for-profit Delaware Valley High School, the Philadelphia Inquirer reported that the FBI had raided his Ritz-Carlton condominium.

Though the government initially denied informing the press of its investigation, Richard Haag, the lead FBI agent on Fattah’s case, came forward as the leak in 2015 when he was called as a witness at Fattah’s trial.

The trial ended with Fattah’s conviction on 22 of 23 counts. The jury found that Fattah defrauded the School District of Philadelphia, drawing $450,000 from beleaguered city schools through his consulting company at a time the district was closing dozens of sites and laying off thousands of teachers.

With the money generated from his phony consulting business, and from the bank loans he obtained through deceit, Fattah covered gambling debts and fed other expensive tastes, including luxury cars and suits.

The 33-year-old claimed at oral arguments in February, however, that Agent Haag’s leak prejudiced his defense because his 2014 firing left him unable to afford the counsel he preferred.

Tossing this “far-reaching theory” last week, Smith questioned what proof Fattah has that he would used the income he lost from his firing directly and completely on legal fees. Fattah’s spending habits bear consideration as well, the federal appeals court found.

“The evidence adduced at trial revealed that, despite his substantial income through DVHS, Fattah had financial difficulties,” Smith wrote. “He incurred lavish personal expenses, owed exorbitant gambling debts, and owed thousands of dollars in unpaid taxes. He used lines of credit to cover his personal expenses and would take out one line of credit to cover the last. Thus for Fattah to have been able to afford the expensive counsel to which he claims to be entitled, the District Court on remand would be required to speculate that Fattah would have either made alterations to his lifestyle or would have been able to continually circulate lines of credit. Fattah has made no preliminary showing in support of any such finding. Certainly if Fattah had continued his practice of lying in order to obtain new lines of credit, access to those funds would not have been protected by the Sixth Amendment.”

Further undermining Fattah’s claim, the court found, is the evidence that he was planning to leave his job before the press reported on his investigation. At Fattah’s trial, prosecutors produced an email Fattah sent days before the raid to his former school district, suggesting that Fattah planned to reveal his business’s fraud himself to eliminate a competitor and void a noncompete clause in his employment contract.

“When this all comes out I’m basically effectively resigned,” Fattah wrote. “I’m done. I was going to be on my way out the door anyway.”

Agent Haag’s leak may have violated FBI policy and obstructed justice, but Smith said it still lone “does not meet the high bar of outrageous misconduct” necessary to support Fattah’s Fifth Amendment claim.

A due-process claim against a law-enforcement official can succeed only if the officer’s actions are so egregious “that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction,” Smith wrote.

 “Fattah and amicus counsel fail to show ‘an evil intent to obstruct’ the due administration of justice,” the 38-page ruling states.

So high are the standards of outrageousness that the Third Circuit has permitted a Fifth Amendment claim only once before – in the case of a government agent who orchestrated the manufacture of a methamphetamine lab solely to get a conviction.

Smith called Agent Haag’s actions far less extreme by comparison, but added that no act of government misconduct is to be taken lightly.

U.S. Circuit Judges Thomas Hardiman and Cheryl Ann Krause concurred.

While Fattah proceeded pro se on appeal as well, Philadelphia-area attorney Ellen Brotman served as court-appointed amicus curiae on his behalf.

Fattah’s father joined his son as a guest of the federal government earlier this year.

A former Democrat who spent two decades in Congress, Fattah Sr. was given a 10-year sentence for using stolen government and charity funds to pay his son’s debts and buy a vacation home.

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