By Ralph Cipriano
A court-appointed lawyer for Chaka Fattah Jr. argues that the federal indictment against him should be dismissed because of an "improper and corrupt" relationship between the lead FBI agent on the case and a reporter for The Philadelphia Inquirer.
In a friend-of-the-court brief filed Feb. 17th, Ellen C. Brotman contended that FBI Agent Richard Haag struck a quid-pro-quo deal with Martha Woodall, an Inquirer reporter, that amounted to "outrageous government conduct."
In the 26-page brief filed in the U.S. Third Circuit of Court of Appeals, Brotman claimed that FBI agent Haag agreed to illegally divulge confidential information about the federal grand jury investigation of Fattah to Woodall. In exchange, the reporter supposedly helped the government's case by supplying background information on Fattah's business dealings with the Philadelphia school district.
Brotman contended that the alleged deal between the FBI agent and the reporter had dire consequences for Fattah Jr. -- a blast of embarrassing negative publicity that cost him his job with the school district and made him unemployable.
As a result, Brotman contends, Fattah didn't have money to hire the lawyer of his choice, so he wound up defending himself in court, with disastrous results.
On Tuesday, Chaka "Chip" Fattah Jr. showed up in handcuffs and an olive green jumpsuit to personally argue his appeal before a three-judge panel from the Third Circuit Court of Appeals. According to the Inquirer, Fattah told the panel of judges that "the issue caused by the government created a situation where I no longer could do my job."
"I was fired," Fattah Jr. said, after a story about an early-morning search warrant that targeted his home and office hit the Inquirer. "I was told my services were no longer needed."
In appeals court, Brotman told the panel of judges that because of the publicity, Fattah lost a $12,000 a-month contract with Delaware Valley High School. Brotman, appointed by the Third Circuit to aid Fattah in his appeal, told the judges that negative publicity not only ruined Fattah's reputation, but made it impossible for him to find another job.
Fattah has already served a year of the five-year prison sentence he received as a result of his 2015 conviction on bank and tax fraud charges. He was also fined $1.1 million.
In appeals court, Assistant U.S. Attorney Eric L. Gibson conceded that FBI Agent Haag's leaks were "regrettable" and "inappropriate." But the prosecutor didn't think that the agent's misconduct led to Fattah's diminished financial situation. Gibson also described the relief sought on behalf of Fattah as a stretch.
"There is simply no authority for the remedy Mr. Fattah is seeking here -- the dismissal of the indictment," Gibson told the judges, according to the Inquirer.
In a 26-page response brief filed Feb. 24th, Acting U.S. Attorney Louis D. Lappen and Assistant U.S. Attorneys Gibson, Robert Zauzmer, and Paul Gray went even further, describing Brotman's argument as "meritless as a matter of law."
The prosecution pointed out that in previous cases, the appeals court has decided that far more outrageous conduct by government agents didn't necessitate the relief sought on Fattah's behalf, namely dismissal of the indictment.
Based on the U.S. Attorney's brief, when it comes to outrageous conduct, the government can be pretty outrageous and get away with it.
In their brief, the U.S. Attorney's office cited one case where a government agent had sex with a defendant. And another case involved a government agent who solicited a defendant to burn down a building. The agent in question drove the defendant to the site, and provided him with gasoline and matches, the U.S. Attorneys wrote. The U.S. Attorney's office cited a third case where the government induced a defendant to swallow one kilogram of heroin in order to smuggle the drugs into the country. But in all three cases cited by the feds, no indictments got tossed.
When it comes to conduct in the case of Fattah Jr., "Nothing remotely comparable happened here," the U.S. Attorney's office argued. "No case supports such an extraordinary result."
In their reply brief, the government contended that Agent Haag's disclosure "did not result in 'real economic harm' to Fattah." And that Fattah had voluntarily resigned from his job with the school district where he was providing "transition services and accelerated learning" to "at-risk" students because he was planning to go off on his own and start a similar business venture.
The prosecutors also argued that Fattah was not remotely qualified for the position he held with the school district, and didn't even have a college degree. As far as the government was concerned, Fattah Jr. was grossly overpaid. At trial, the U.S. Attorneys wrote, the jury convicted Fattah Jr. of defrauding the school district out of more than $900,000.
In her court filing, Brotman described the allegedly corrupt bargain between the FBI agent and the reporter, who did not respond to a request for comment.
Marty Woodall is a former colleague of mine who happens to not only be a fine reporter, but a good person. Maybe she decided not to look a gift horse in the mouth when FBI Agent Haag came calling.
Brotman began her brief by detailing the history of the allegations of impropriety in the case, as raised by Fattah Jr. And the government's original denials regarding the leak to the Inquirer about the details of the search warrants targeting Fattah.
"Neither the prosecutors nor the investigators assigned to this investigation played any role in alerting the press to the impending execution of the search warrants," the prosecution responded when Fattah Jr. originally raised the charge of improper conduct by the FBI agent. "There is no evidence in the record regarding how the press came to be present" when the warrants were served, the prosecutors had claimed.
But on Oct. 27, 2015, FBI Agent Haag admitted at the end of his testimony winding up the prosecution's case that he had struck a bargain with the reporter, Brotman wrote.
"In exchange for the reporter's assistance with background information relating to the Philadelphia School District, the agent would provide the reporter with confidential information about the investigation," Brotman wrote.
The FBI agent testified in court that he wanted the reporter "to feel as though she had a vested interest, that we had information that could eventually lead to a potential story for her. I mean, she has to have a reason to provide me with information."
"To provide her with that reason, the agent told the reporter that Fattah was a target of the investigation," Brotman wrote. The FBI agent also advised the reporter about "the existence of search warrants 'months in advance,'" Brotman wrote.
FBI agent Haag "provided the time and location of the search as soon as that information was available (despite the facts that the warrants were sealed), advised that Treasury Department agents were assisting in the investigation, discussed the content of undercover recordings, and gave her [Woodall] specific information about Fattah's business dealings," Brotman wrote. That information included "amounts [Fattah Jr.] had been paid under contracts with the Philadelphia school district, where Fattah worked, and who his partners were."
"The agent also lied to Magistrate Timothy Rice at the time of the issuance of the warrants when he affirmed the need for secrecy and sought a sealing order," Brotman wrote, arguing falsely that the ongoing federal investigation of Fattah Jr. "would be jeopardized by premature disclosure of information."
The FBI agent, Brotman wrote, provided Woodall with "information concerning the focus of the government's investigation, the context of FBI recordings between Fattah and Matthew Amato, [Fattah's former business partner turned cooperating witness for the government], the address of Fattah's home and the extant date and time when a sealed search warrant would be executed."
But at trial, Judge Harvey Bartle III determined that the "wrongful conduct of Agent Haag" had not "risen to the level to justify dismissal of the indictment" because there was "no evidence that the grand jury was influenced by the disclosures in the press," Brotman wrote.
In her brief, however, Brotman repeatedly attacked the conduct of FBI Agent Haag as corrupt.
"In this prosecution, the lead case agent repeatedly violated the law, ignored Department of Justice policy, and lied to a judge in order to employ an investigation technique that was unnecessary and resulted in the widespread exposure of a grand jury target years before charges were filed," Brotman wrote.
According to Brotman, Judge Bartle erred by concluding that the misconduct by the FBI agent "did not violate Fattah's Due Process and Sixth Amendment rights."
By leaking to the Inquirer, Brotman wrote, the FBI agent knew "it would lead to widespread publicity of the search, thus exposing Fattah to humiliation and consequently eradicating his ability to gain employment."
"The intentional violation of law and policy is not an investigative technique which can be condoned by this Court as an acceptable crime fighting tool," Brotman wrote. "Instead, it must be soundly rejected."
Not only is such conduct illegal, Brotman wrote, but "this type of 'collaboration' between the press and government creates a serious risk that the government will use the press to improperly disadvantage and pressure targets or witnesses of investigations long before the grand jury has an opportunity to review the evidence. Because this improper and corrupt relationship must be strongly discouraged, the remedy for this violation is dismissal of the indictment."
"This negative publicity affected Fattah's financial status to the point where he was unable to hire a lawyer during the investigation and have the layer of his choice at trial," Brotman wrote. "This government interference with Fattah's right to the counsel of his choice violates the Sixth Amendment" right to a speedy trial by an impartial jury, with the assistance of counsel.
In her brief, Brotman wrote that FBI Agent Haag began his investigation of Fattah Jr. by seeking information about minority contracting in the Philadelphia school district. The agent identified a reporter, Woodall, who had "written extensively on the subject," Brotman wrote.
"The agent hatched a plan to further his investigation by offering the reporter confidential investigation information," Brotman wrote. "In exchange for background information on a general legal topic, which should have been readily available from a number of other sources, (including the United State's Attorney's Office, the Philadelphia City Solicitor's Office, or a library) the agent was willing to violate the law, FBI policy, and the court's order sealing the search warrant."
"This creation of a quid pro quo relationship was also based on the agent's spurious and cynical assumption that only by providing the reporter with the promise of a 'scoop' would she be willing to assist a legitimate government investigation into crime," Brotman wrote.
"In holding up his part of the bargain," Brotman wrote, "the agent told the reporter that Fattah was a target of the investigation, in itself, a violation of grand jury secrecy."
The agent also divulged the time and location of search warrants "months in advance," "discussed the content of undercover recordings, and provided specific information about Fattah's business dealings," with the school district, Brotman wrote.
The FBI agent knew that by leaking to the Inquirer, he would expose Fattah Jr. to "negative, humiliating and harmfully publicity, months or even years before charges were publicly filed," Brotman wrote. The agent knew that to keep his end of the bargain with the reporter "would require lying to the federal magistrate about the need for sealing and privacy; he [also] knew he would be violating the sealing order that arose from that lie."
The agent "never considered appealing to the reporter's sense of civic duty in asking the reporter for help, but cynically assumed that she would only assist him if he offered a quid pro quo," Brotman wrote. "The agent's conduct corrupted both the process and the reporter."
"This needlessly lawless behavior by a government agent entrusted with confidential information and the public shocks the conscience and establishes a Due Process violation that must be met with a sanction that sets a bright line and a clear message: dismissal of the indictment," Brotman wrote.
"This sanction is necessary to remedy the violation here and prevent the government from using the press to improperly pressure targets of investigations."