Former Representative Chaka Fattah’s Bribery Conviction Overturned By Third Circuit
The Third Circuit overturned former Pennsylvania representative Chaka Fattah’s bribery conviction.
Fattah was convicted in June 2016 of multiple charges based on his involvement in various schemes to raise money for his unsuccessful 2006 campaign for Philadelphia Mayor and subsequent activities designed to conceal the repayment of unlawful funds and to remedy his personal and political financial problems. The jury convicted Fattah along with multiple associates, including Herbert Vederman, a successful businessman who had served prominent roles in the administrations of Ed Rendell when he was Mayor or Philadelphia and Governor of Pennsylvania.
Just six days after the jury returned its verdicts, the Supreme Court issued its opinion in McDonnell v. United States, which limited the definition of “official acts” used in the honest services fraud and bribery statutes under which the jury convicted Fattah and Vederman. Fattah’s bribery convictions were based on three “official acts” taken on Vederman’s behalf in exchange for things of value: setting up a meeting between Vederman and U.S. Trade Representative Ron Kirk; attempting to secure Vederman an ambassadorship; and hiring Vederman’s girlfriend Alexandra Zionts.
A three-judge panel of the Third Circuit Court of Appeals found that McDonnell’s interpretation of the meaning of “official acts” rendered the instructions Fattah’s jury received erroneous, and reversed and remanded his bribery convictions. In reaching this decision, the panel first reiterated McDonnell’s multistep definition of an “official act:”
- Step 1(A) requires the government to identify a question, matter, cause, suit proceeding or controversy (the “Question”) that is a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. Typical meetings, calls, or events arranged by the public official do not qualify as the required formal exercise of government power.
- Step 1(B) then requires the government to show that the qualifying Question is one that may at any time be pending or may be brought before a public official. This element requires that the item be one that can be put on an agenda, tracked for progress, or checked off as complete.
- Step 2 requires the government to prove that the public official made a decision or took an action with respect to the Question. Setting up a meeting or phone call, showing general support, or hosting an event cannot prove this element unless the public official intends to exert pressure on another public official or provides advice, knowing or intending the advice to form the basis for an official act.
Applying these requirements to Fattah’s conduct, the Third Circuit concluded that Fattah’s arranging of the meeting between Vederman and Kirk clearly did not qualify as an official act under McDonnell.
Whether Fattah’s efforts to secure Vederman an ambassadorship, which included three emails, two letters, and one phone call, constituted an “official act” in light of McDonnell was a closer call. The Third Circuit concluded that the formal appointment of a particular person to a specific position would qualify as a matter that may be pending under Step 1 of the McDonnell analysis. With respect to Step 2, because the trial court did not instruct the jury that they could only consider Fattah’s efforts “official acts” if they were impermissible attempts to pressure or advise another official, it could not assume that the jury’s verdict was proper.
The Third Circuit found that though Fattah’s decision to hire Zionts was clearly an official act because it was pending before Fattah himself and was a focused and concrete action within Fattah’s specific duties of his official position, remand of the bribery counts was still necessary because the court could not rule out that the jury erroneously convicted Fattah and Vederman based on other actions that were not official acts under McDonnell.
What Happens Next?
The Third Circuit’s decision upheld Fattah’s racketeering conspiracy, fraud, and money laundering convictions and reinstated two convictions for bank fraud and making false statements to financial institutions that the District Court had overturned under Rule 29. Thus though the decision today is somewhat of a win for Fattah, he still faces a significant criminal sentence. Moreover, the Third Circuit rejected the argument that there was insufficient evidence to support a bribery conviction at all, and noted that a properly instructed jury on remand could find more than a single official act.