United States v. Fattah, CRIMINAL ACTION NO. 15-346-1

• Decision Date: 16 March 2016
• Docket Number: CRIMINAL ACTION NO. 15-346-1
• Citation: 170 F.Supp.3d 761
• Parties: United States of America v. Chaka Fattah, Sr.
• Court: U.S. District Court — Eastern District of Pennsylvania

170 F.Supp.3d 761

United States of America

v.Chaka Fattah, Sr.

CRIMINAL ACTION NO. 15-346-1

United States District Court, E.D. Pennsylvania.

Signed March 16, 2016

Paul L. Gray, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

MEMORANDUM

Bartle

, District Judge.

The defendant Chaka Fattah, Sr., a United States Representative elected from the Second Congressional District of Pennsylvania, has been indicted in a 29-count indictment along with four other defendants: Herbert Vederman (“Vederman”), Robert Brand (“Brand”), Karen Nicholas, and Bonnie Bowser (“Bowser”). The indictment also references two unindicted co-conspirators, Thomas Lindenfeld (“Lindenfeld”) and Gregory Naylor.

All five defendants are charged in Count One with conspiracy under the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1962(d)

. Fattah is also named in sixteen additional counts while the other four defendants are also named in multiple counts, including some with Fattah.

Fattah has now moved to dismiss Count Three (conspiracy to commit honest services wire fraud, 18 U.S.C. §§ 1343

, 1346, and 1349 ), Count Sixteen (conspiracy to commit bribery, 18 U.S.C. § 371 ) and Count Seventeen (bribery, 18 U.S.C. § 201(b)(2) ) of the indictment on the ground that they infringe upon his rights under the Speech or Debate Clause of the Constitution.¹ That provision states that “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const. art. I, § 6, ¶ 1.

The Speech or Debate Clause is rooted in English history and the struggles of the House of Commons to protect its members from intimidation by the King. The Crown in times past used both the criminal and civil process against members who displeased it. United States v. Johnson, 383 U.S. 169, 177–78, 180–83, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966)

. The Clause was engrafted into our Constitution to protect the independence of the Legislative Branch from improper encroachment by a potentially hostile Executive Branch or Judiciary. Id. at 177–83, 86 S.Ct. 749.

The Supreme Court has stressed in United States v. Brewster, 408 U.S. 501, 512, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972)

, that the Clause immunizes the members of Congress only to the extent of having to answer in either a criminal or civil proceeding for their “legislative acts or the motivation for legislative acts.” The Court explained:

A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or Senate in the performance of official duties and into the motivation for those acts.”

Id.

Legislative acts also include activities at committee hearings. Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 504–06, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975) ; Grav el v. United States, 408 U.S. 606, 624, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972)

. Nonetheless, “some nexus to legislative functions” without more is not enough to trigger the privilege. Brewster, 408 U.S. at 528, 92 S.Ct. 2531.

While “performing legislative activities” is protected, the Supreme Court has recognized that the duties of members of Congress are much more expansive. Constituent services; making appointments with Government agencies; assisting in securing government contracts, news letters, and news releases; speeches outside of the halls of Congress; and other similar political activities, for example, are all legitimate aspects of the job of a representative or senator. These activities, however, do not constitute legislative acts encompassed by the Speech or Debate Clause. Brewster, 408 U.S. at 512, 92 S.Ct. 2531

.

The Speech or Debate Clause was not designed “to make Members of Congress super-citizens, immune from criminal responsibility.” Brewster, 408 U.S. at 576, 92 S.Ct. 2531. For example, it does not shield them from indictment for accepting a bribe as a quid pro quo for a promise related to an official act. It is the taking of a thing of value in return for making the promise that is the crime. Whether the member of Congress fulfills his promise, reneges on his promise, or does nothing is irrelevant. Even if the promise was related to legislation, the bribery charge may proceed because it is unnecessary for the government to introduce any evidence of a legislative act as part of its proof. Evidence of the acceptance of the bribe tied simply to the promise to undertake a legislative act is sufficient. Significantly, the protection of the Speech or Debate Clause does not reach a promise to perform a legislative act in the future. Brewster, 408 U.S. at 526–27, 92 S.Ct. 2531

; United States v. McDade, 28 F.3d 283, 293 (3d Cir.1994).

It is also well settled that the efforts to lobby or influence the Executive branch to take certain action is “in no wise related to the due functioning of the legislative process,” at least when legislative oversight or fact-finding is not involved. Brewster, 408 U.S. at 513, 92 S.Ct. 2531

(quoting Johnson, 383 U.S. at 172, 86 S.Ct. 749 ); McDade, 28 F.3d at 299–300 ; Virgin Islands v. Lee, 775 F.2d 514, 521 (3d Cir.1985).²

With this background, we turn to the specific counts and allegations in the indictment which Fattah challenges as violating the Speech or Debate Clause.

Count Three of the indictment, as noted above, charges Fattah and Bowser with conspiracy to commit honest services wire fraud in violation of 18 U.S.C. §§ 1343

, 1346, and 1349. Unindicted co-conspirator Lindenfeld is also implicated. This conspiracy relates to Fattah's promise to Lindenfeld to obtain a congressional earmark, that is an appropriation, for a non-profit organization known as “Blue Guardians,” formed by Lindenfeld. In return for this promise, Lindenfeld is alleged to have agreed to forgive a campaign debt owed to him and his company, LSG, by Fattah for Fattah's unsuccessful run for mayor of Philadelphia in 2007.

Count Three, which describes this offense in detail, incorporates by reference a number of paragraphs found in Count One on pages 7 and 12-14 of the indictment:

16. The manner and means by which the defendants and their coconspirators agreed to conduct the affairs of the Enterprise included the following, among others:

...

c. engaging in a corrupt exchange in which FATTAH promised to use his position as a United States Congressman to obtain federal funds in the form of a questionable earmark for a non-profit entity that did not yet exist, in order to pay off another mayoral campaign debt[.]

...

27. After FATTAH lost the mayoral primary in May 2007, FATTAH's mayoral campaign owed Lindenfeld and LSG a substantial sum of money for the work Lindenfeld and LSG had done on FATTAH's campaign, which included compensating Lindenfeld for his role in funneling the $1 million campaign contribution from Person D into the mayoral race and repaying that loan using the stolen charitable and grant funds. In 2008, FATTAH met with Lindenfeld to discuss the outstanding sum owed to LSG by FATTAH's mayoral campaign. During the meeting, FATTAH told Lindenfeld that FATTAH could not legitimately raise the funds necessary to pay Lindenfeld and LSG within the constraints of the campaign finance laws. FATTAH also told Lindenfeld that FATTAH and his campaign, FFM, needed to write down the debt to LSG publicly on its Campaign Finance Reports. In addition to being required under the Pennsylvania Election Code and the City of Philadelphia's Campaign Finance Law, the Campaign Finance Reports are used in the political arena as a measure of a candidate's political strength and viability because the disclosures show how much money a political candidate raised, how much the candidate has spent, and whether the candidate satisfies his campaign's financial obligations. If the candidate appears to ignore his campaign's creditors, that makes it more difficult to raise future funds, hire campaign staff, and obtain services from vendors during future campaigns while also creating issues related to the candidate's public perception and rendering the candidate vulnerable to attack from political opponents. To resolve the debt to Lindenfeld's satisfaction and publicly erase the debt, FATTAH proposed using his status as a public official to instead obtain a federal grant for Lindenfeld's benefit.

28. FATTAH proposed that Lindenfeld create a nonprofit organization called “Blue Guardians.” Despite the fact that Lindenfeld was in the business of political consulting, FATTAH suggested that “Blue Guardians” could obtain federal funding for vaguely defined efforts concerning coastal environmental conservation. Lindenfeld proceeded to create his organization, although it never engaged in any activity. FATTAH instructed Lindenfeld to use a Philadelphia address for “Blue Guardians,” and at FATTAH's direction, Lindenfeld obtained BRAND's agreement to provide BRAND's own Philadelphia business address as a mail drop for the not yet established “Blue Guardians.”

29. In exchange for FATTAH's promise of federal funds, FATTAH sought and received Lindenfeld's agreement to reduce the approximate $130,000 of reported debt owed by FATTAH to Lindenfeld's LSG and also to report the debt reduction on FFM's publicly filed Campaign Finance Reports. FATTAH and BOWSER then began to record reductions to the debt owed to Lindenfeld and LSG on FFM's Campaign Finance Reports annually.

30. To conceal the corrupt arrangement to settle FATTAH's mayoral campaign debt to Lindenfeld and LSG, FATTAH, BOWSER, and Lindenfeld, and others, known and unknown, agreed to falsify FATTAH's Campaign Finance Reports from the mayoral race. FATTAH and BOWSER disguised the bribery scheme while at the same time publicly reducing the debt by falsely reporting annually that Lindenfeld had “forgiven” FFM's obligation to his firm in $20,000 increments each year. In early 2010, FATTAH and BOWSER began falsely

...