Sunday, December 4, 2016

As Sentencing Nears, Debate Continues Over Chaka Fattah

Matt Rourke/Associated Press
By Ralph Cipriano
for BigTrial.net

On Dec. 12th, former U.S. Congressman Chaka Fattah, convicted of corruption last June, is scheduled to be sentenced by Judge Harvey Bartle III.

Fattah is facing as much as 20 years in prison. But a group of the congressman's former staffers say he got a bum deal.

In a detailed analysis of more than 300 pages obtained by Big Trial, the staffers, who are anonymous, assert that the congressman who served 11 terms was convicted on non-existent evidence. To prove their point, the former staffers rely on excerpts from 3,000 pages of trial transcripts.

At 6 p.m. Monday on radio station 900AM-WURD, Barbara Grant, a former TV and radio reporter, and former director of communications for Mayor John Street, plans to delve into the issues raised by this analysis. Why?

"I've known Chaka for a long time," Grant said. "I don't think he deserves to go to jail, I've seen other people walk away having done more."

Grant said that her problems with the Fattah case began with all the pre-trial publicity, and "the assumption that he was already guilty."

It's a typical problem defendants in Philadelphia face in high-profile criminal cases. That's because the city's paper of record usually functions as press agents for the prosecutors, typically portraying allegations and accusations as facts, and the defendants as already convicted by the indictment, and/or numerous prosecution leaks to that same paper of record.

By the time the trial rolls around, the jury pool is tainted, and in the minds of many people, the defendant is, as Barbara Grant noted, already guilty.

Any politician in this town who is on the wrong end of a criminal indictment is always up against two enemies, the prosecutors and the media, where the agenda is set by the pro-prosecution Inquirer.

It happened in the Vince Fumo case. It happened in the city Traffic Court judges corruption case. It happened in two Archdiocese of Philadelphia sex abuse cases. It happened with the rogue cops case. And it happened in Chaka Fattah's case.

Fattah may end up going to jail soon, but the controversy over his case isn't going away.

On June 21st, a jury convicted Chaka Fattah of 22 counts, including conspiracy to commit racketeering, as well as conspiracy to commit mail fraud, mail fraud, conspiracy to commit wire fraud, conspiracy to commit bank fraud, conspiracy to commit bribery, bribery, conspiracy to commit honest services fraud, conspiracy to commit money laundering, money laundering, making false statements to a financial institution, and falsification of records.

A co-defendant, Herb Vederman, was convicted on seven counts, including conspiracy to commit racketeering, conspiracy to commit bribery, bribery, bank fraud, making false statements to a credit union, falsification of records, money laundering, and money laundering.

Three other Fattah associates were convicted in the case, including Bonnie Bowser, Fattah's former chief of staff; Karen Nicholas, a former Fattah aide and CEO of a nonprofit started by Fattah; and Robert Brand, a consultant who ran a nonprofit.

The critics of the Fattah case include former Gov. Ed Rendell.

Rendell, a former Philadelphia District Attorney, has described the indictment of Vederman, a former Rendell aide, as "a horrible prosecutorial overreach."

Another critic is Judge Bartle, who didn't think the jury got the verdict right.

In October, Bartle overturned some of the convictions on various charges in the case, but upheld the remaining convictions. Specifically, the judge overturned four counts of fraud against Fattah, and a racketeering conspiracy charge against Vederman.

The biggest issue on appeal, at the top of the staffers' analysis, is the dismissal in the case of Juror No. 12, a subject I've previously written about. In an interview, the 12th juror, who sought anonymity, said that after two days of deliberation, he had been on the short end of eight straight 11-1 votes.

"It was 11-1 for five hours straight waiting for me to change my mind," the juror said. "I said, 'I'll hang the jury. I'm not gonna change my mind."

The jury foreman responded by sending a note to Judge Bartle, accusing Juror No. 12 of refusing to deliberate. The next day, on June 17th, the judge dismissed Juror No. 12, appointed an alternate juror, and instructed the jury to start its deliberations all over again.

The jury came back four days later and convicted Fattah and his co-defendants. Juror No. 12, however, insisted that he didn't refuse to deliberate, he just refused to change his mind.

In an interview, J.C. Lore, a professor and director of trial advocacy at Rutgers Law School, said that "simply being a holdout is not a reason to dismiss."

"If a juror says, I don't believe the government's case," the professor said, "that's the role of a juror."

The central allegation in the Fattah corruption case was that the congressman had overseen a plot to borrow $1 million from a wealthy donor and used it to pay for the campaign expenses of Fattah's unsuccessful 2007 campaign for Philadelphia mayor.

But as far as Juror No. 12 was concerned, "I didn't believe there was any evidence for a conviction," the juror said, because, "there was nothing directly tying him [Fattah] to the money."

The juror in question is a white Lancaster County businessman who said he was a former paratrooper for the U.S. Army's elite 82nd Airborne Division. But nearly six months after the verdict in the Fattah case, the circumstances surrounding Judge Bartle's dismissal of Juror No. 12 remain shrouded in secrecy.

A transcript from a hearing on the juror's dismissal remains under seal, at the judge's request. A gag order imposed by the judge also remains in place that prevents lawyers in the case from discussing the dismissal of Juror No. 12. Even though, it could be argued, with the verdict in and the jurors having been dismissed back in June, there's no real reason to keep the full story behind Juror No. 12's departure a secret.

The questions about the Fattah case raised by former staffers cover many subjects. Why at this late date are the congressman's former staffers raising these issues?

Vederman the racketeer
"We know first-hand -- up close and personal if you will -- what kind of a man he is, his true character," one of the staffers wrote about Fattah. "We want to see justice carried out fairly and this is something we think we can do to help."

A big issue the staffers raised was the use by the prosecutors in the Fattah case of the Racketeer Influenced and Corrupt Organizations Act. The federal law, commonly known as RICO, provides for extended criminal penalties for acts performed on the part of an ongoing criminal organization.

RICO is normally used for prosecutions of the mob, typically involving murder, extortion, etc. In contrast, the most the Fattah crime syndicate was accused of was laundering a $1 million campaign loan, as well as lobbying unsuccessfully to get Vederman appointed as an ambassador, and paying some of the educational expenses of a woman who used to be Fattah's au pair.

Not exactly typical RICO material. And, as anyone who knows Herb Vederman can attest, the mild-mannered, affable former clothing magnate doesn't exactly fit anyone's image of a racketeer.

That's why former Gov. Rendell, who was a witness for Vederman during the Fattah trial, complained about a "horrible prosecutorial overreach." Dennis Cogan, a prominent criminal defense lawyer who is also a former assistant Philadelphia district attorney, agreed, describing the bribery charges against Vederman as a "bogus RICO case."

If Vederman was guilty of bribery for the relatively petty donations he was accused of making, Cogan said, such as a $3,000 check toward the educational expenses of Fattah's former au pair, "Nobody is safe."

In their analysis, the staffers point out that the RICO Act wasn't used in other political corruption cases such as the prosecutions of former state Senator Vincent J. Fumo, and current U.S. Senator Robert Menendez of New Jersey. Using RICO against Fattah, former staffers say, raises "a question of fundamental fairness."

The staffers also point out that Judge Bartle presided over the trial of the congressman's son, Chaka Fattah Jr. who was sentenced by Bartle to five years in prison after a jury convicted him in November 2015 of 22 counts of bank and tax fraud.

In the case of Chaka Fattah Jr., during a sidebar conference, the prosecutors made statements that were "false and extremely prejudicial" about the congressman regarding Fattah's alleged involvement in the awarding of school district contracts, the staffers wrote. Richard J. Haag, the lead FBI agent on both cases, subsequently admitted leaking information in the son's case about the congressman to The Philadelphia Inquirer.

On philly.com, a story reported that "agents are now asking about Fattah Jr.'s ties with politicians, including his father, Chaka Sr., the ranking Democrat on the house appropriations committee." The FBI agent later admitted that he was the source for the story.

The staffers want to know how the judge could have heard false allegations about the congressman in his son's trial, and then fairly preside over the trial of Fattah Sr.

At the congressman's trial, the judge also ruled the defense could not make any reference to the FBI agent's misbehavior during the trial of Fattah Jr..

The former Fattah staffers also questioned why the defense wasn't allowed to obtain medical records of a key prosecution witness, political consultant Thomas Lindenfeld.

It was Lidenfeld who testified about the alleged laundering of the $1 million campaign loan to pay for Fattah's unsuccessful campaign for Philadelphia mayor.

Lindenfeld said he talked to the congressman about the scheme, which left Lindenfeld on the hook to repay some $600,000. When it came time to repay the loan, Lindenfeld testified, he talked to the congressman again about the loan and, according to Lindenfeld, the congressman replied, "No problem."

Lindenfeld, however, "suffers from a bipolar disorder," the congressman's staffers wrote, and may have experienced "delusions or hallucinations."

The staffers' analysis also describes an "inexplicable reversal" by Judge Bartle regarding that $1 million dollar loan.

In a pre-trial ruling, the judge ruled that the $1 million loan made from Albert Lord II to Lindenfeld's firm was not illegal under federal law because it involved a mayoral race, although, the judge said, the loan could have been illegal under state and local law.

But in a  post-verdict memorandum, the judge ruled that the $1 million loan was illegal under federal law, even though "there is nothing in the trial record to support this," the staffers wrote.

The loan was a sticking point for the defense because both the wealthy donor making the loan, Albert Lord II, former CEO of Sallie Mae, and his son, Albert Lord III, who tried to collect on the loan, testified that they never had any conversations with Fattah about the loan.

On the witness stand, Albert Lord II, a government witness with immunity, stated repeatedly that he never had a conversation with Fattah about the loan, both before and after the 2007 mayoral campaign that Fattah lost.

The following exchange is between Samuel Silver, Fattah's lawyer, and Albert Lord II:

Q. OK, just so to understand your testimony correctly, you never had a conversation with Congressman Fattah about the note; isn't that a fact?

A. I did not.

Q. Ok, In fact you never had a conversation with Congressman Fattah about the loan . . .

A. I did not.

Q. As you sit here today you cannot remember one time that you talked to Congressman Fattah about that loan, isn't that a fact, sir?

A. That's a fact.

Albert Lord III, also testified that when his father asked him to take over his business affairs, and try to collect on the father's loans, the son only dealt with Lindenfeld and never with Fattah. And that only Lindenfeld's name was on the promissory note.

In addition, there was no email or written statement tying Fattah to the loan. That's why Juror No. 12 kept insisting to his fellow jurors that there was no evidence tying Fattah to the loan, other than the word of Lindenfeld, whom Juror No. 12 found to be not credible.

That's because it was Lindenfeld's own testimony that he lied about the alleged schemes in the Fattah case to his family, his business colleagues and the feds. So why wouldn't he lie to me, Juror No. 12 figured.

Another flip-flop by the judge flagged by the former Fattah staffers: in a pre-trial motion, the judge disagreed with Vederman's contention that wasn't a participant in the RICO conspiracy. But in a  post-trial memorandum, the judge changed his mind.

"The record contains no evidence that Vederman agreed to play a role or even knew about the events surrounding the illegal $1 million loan," the judge wrote, "or any other criminal scheme in which other defendants were involved except for the bribery scheme."

Regarding the bribery scheme, the judge wrote, the Court Appeals has ruled it "is insufficient to connect a defendant to a RICO enterprise."

The judge's post-trial memorandum also stated that Fattah had hand-delivered a letter to President Obama, urging the appointment of Vederman to the position of an unpaid ambassador. In the eyes of the prosecutors, it was an official act, even though Fattah had no power to appoint ambassadors.

The sole witness at trial, however, regarding that incident was Maisha Leek, a former chief of staff for Fattah. When questioned about whether Fattah hand-delivered the letter to the president, Leek did some back-tracking, testifying, "It was a long time ago," and, "I'm not certain."

The judge's memorandum also states that Fattah used his status as a member of the house appropriations committee to pressure President Obama to appoint Vederman as an ambassador.

However, Jim Messina, a White House deputy chief, testified during the trial that the Fattah letter to the president urging the appointment of Vederman was "very routine." Messina also agreed with characterizations that there was "nothing inappropriate" and "nothing unusual" about the congressman's recommendation of Vederman to the president.

It's the kind of things politicians do every day.

The Bartle memorandum also does not take into account the recent overturning of the corruption case of former Virginia Gov. Bob McDonnell, where the U.S. Supreme Court redefined what constitutes an official act.

"The mere expression of support to another public official for an action to be taken by that other public official is not an official act," the Supreme Court wrote.

The high court's ruling, Fattah staffers say, was ignored by Judge Bartle in the Fattah case.

Update: Fattah's former staffers have set up a website, thefattahcase.com, where all of their material can be read online.


1 comments:

  1. Fake news is making headlines these days, news meant to sway our political outcome is holding center stage in a lot of news rooms. Most reporters and the public are, and rightly so, concerned that outside entities were able to convince unsuspecting individuals that news reports were true and from a reliable news outlet.

    We need also to be very concerned about what our own judicial system has been doing to defendants for decades to sway the outcome of trials. Planting stories is a calculated tactic used by prosecutors that has been very successful, hence the high rate of plea bargains. No reasonable defendant would take a chance with a jury that has already been contaminated by the media.
    Using the same reporters continually to cover the courtroom scene, working with the same prosecutors and agents is incestuous indeed. There can be no objective reporting when one is familiar with the same people day in a day out. Reporters need to be rotated, like bank tellers.
    As equally alarming is the media to date has not seen any harm in taking a one sided position on an indictment,of course the defendant is guilty, end of story,very irresponsible journalism. If one thinks about what we have accepted as responsible reporting over the course of years on judicial matters its almost embarrassing, to say the least. I would expect this type of propaganda in a less free societies but never having experienced any other sort of coverage we have fallen into accepting this less than adequate style of reporting .
    It seems laughable to think the media would give as much print to a defendant as a prosecutor.

    Its fair to say that no defendant has ever had equal coverage from the media as a prosecutor had in condemning them. Let prosecutors try their own cases, the media needs to stay out until a trail has been concluded. Shaming defendants,ruining their reputations had been the job of the media. Team prosecution consists of the media, prosecutors, FBI and IRS agents and the judges.
    How many innocents have gone to jail aided by the media and how many would have had a fighting chance at freedom had there had been no publicity on their case. Journalist feel free to dig in the mud and produce every other conviction or indictment that was every publicized since the turn of the century when aiding the prosecution.
    If as much work was put into showcasing exonerations or listening to those unjustly accused we may have had a very different justicial system. Instead we treat politicians and those indicted by the government as vermin.
    In America you are guilty if a prosecutor says you are guilty and your doomed if the media runs with the story, tarnishing what is left of their life.
    In an age of social media shaming people is acceptable, we need to depend on those who call journalism their profession to get the facts correct,to spare lives and families and to move the criminal justice system forward.

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