Incarcerated former Congressman Chaka Fattah of Pennsylvania deserves a new trial on five of the 29 charges a jury convicted him of two years ago, a federal appeals court ruled Thursday.
In justifying its reversal of the five bribery-related counts, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit cited a U.S. Supreme Court case in which the corruption conviction of former Virginia Gov. Bob McDonnell was thrown out because the jury did not receive a complete explanation of what constituted an “official act.”
“The jury was not properly instructed on this point,” the panel wrote. “Without the benefit of the principles laid down in McDonnell, the jury was free to conclude” that meetings Fattah set up with a U.S. trade representative were official acts, when perhaps they were not.
“The District Court’s erroneous jury instructions, therefore, cannot survive harmless error review.”
Both sides in the case found something to celebrate. Fattah’s legal team is hoping the tossed charges could expose the convictions to additional review by the U.S. Supreme Court. Yet prosecutors said the fact that the appeals court left most of the conviction untouched shows that the evidence marshaled at trial has survived an important test, especially in light of the McDonnell ruling that has unraveled several high-profile public corruption cases since it was handed down in 2016.
Attorneys for the 11-term congressman had seen the landmark decision as a tool to dismantle some of convictions of Fattah and an affluent benefactor, Herbert Vederman, who was convicted alongside Fattah.
Fattah is now serving a decade-long prison term. Legal experts say it is unlikely that he will win his release ahead of a potential retrial on the five charges that the appeals court tossed on Thursday.
Federal prosecutors could choose not to retry Fattah on those counts, according to some legal observers.
“I don’t think it makes sense from a prosecutor’s standpoint to retry this,” said Philadelphia lawyer Jim Lloyd, a former prosecutor. “The sentence is going to stand on all of the other counts that were affirmed. It would be tough to justify another monthlong trial.”
In a statement, prosecutors would not reveal which direction they are leaning.
“The government will carefully study the matter and determine whether the interests of justice warrant a retrial,” said Bill McSwain, U.S. attorney for the Eastern District of Pennsylvania.
McSwain said it is also possible that government lawyers will dismiss the five charges the appeals court knocked down “in light of the fact that both Fattah and Vederman remain convicted of serious federal crimes that in our view warrant the full sentences that were previously imposed.”
Legal observers said retrying Fattah on the bribery-related charges may not even affect his 10-year prison term.
“They needed a total victory here, and they didn’t get that. They got a partial victory,” said Adam Bonin, a Philadelphia lawyer who specializes in political law. “The things that he was convicted on, which stuck, are sufficient to keep him in jail for the length of his sentence.”
Question of ‘official acts’
Prosecutors alleged during Fattah’s trial that he used Vederman, a wealthy businessman from Florida, as a “human ATM machine,” showering him with tens of thousands of dollars in money and gifts. Authorities said Fattah, in exchange, sought a coveted U.S. ambassadorship for Vederman.
Fattah first tapped Vederman, a government lobbyist, to help pay down the thousands of dollars in debt Fattah had accrued following a failed 2007 mayoral bid in Philadelphia.
After successfully working on settlement agreements with a number of creditors, Fattah thought Vederman deserved something in return, such as “serving his country in an international capacity,” as he wrote to White House officials in 2010.
Later that year, Fattah hand-delivered a letter to President Barack Obama recommending Vederman for an ambassadorship.
When that effort fizzled, Fattah worked connections to try to land Vederman a spot on a federal trade committee, which also never materialized.
And there was the sham sale of a 1989 Porsche, owned by Fattah’s wife, former NBC10 news anchor Renee Chenault-Fattah. Vederman wired $18,000 to the Fattahs for the car, but Vederman never picked it up. The Fattahs continued to have it serviced and insured. Federal Bureau of Investigation agents discovered the Porsche in the Fattahs’ garage during a 2014 raid. Meanwhile, the $18,000 Vederman paid for the car was devoted to a Fattah getaway home in the Poconos.
In reviewing the case, the three-judge appeals panel concluded that not all of these actions were “official acts” to establish criminal bribery. And in order to discern that, a jury would need to hear the new definition of an “official act” set by the U.S. Supreme Court.
“Nor can we, on the cold record before us, determine whether Fattah’s efforts to secure Vederman an ambassadorship crossed the line,” the panel wrote in the Thursday opinion. “Determining, for example, just how forceful a strongly worded letter of recommendation must be before it becomes impermissible ‘pressure or advice’ is a fact-intensive inquiry that falls within the domain of a properly instructed jury.”
Jurors rejected Fattah’s defense that the swapping of favors was nothing more than two friends thanking each other for a strong friendship. Instead, the jury unanimously convicted Fattah of 23 corruption-related charges, torpedoing the political career of a politician who was once one of the Philadelphia area’s most dominant elected officials.
Lawyer Sam Silver, who is representing Fattah, said he was reviewing the 142-page opinion. He declined to comment Thursday.
McSwain, meanwhile, said the court’s ruling keeps largely intact the justice government investigators had sought in the case.
“Today’s decision ensures that Fattah will remain behind bars,” McSwain said. “Which is where he belongs.”
Correction: An earlier version of this story incorrectly stated the number of counts a jury convicted Fattah of in 2016. The jury convicted Fattah of 29 corruption-related charges.