PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 16-1265

_____________

UNITED STATES OF AMERICA

v.

CHAKA FATTAH, JR.,

 Appellant 

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-14-cr-00409-001

District Judge: The Honorable Harvey Bartle, III 

_____________ 

Argued March 7, 2017

Before: SMITH, Chief Judge, HARDIMAN, and 

KRAUSE, Circuit Judges

(Opinion Filed: June 2, 2017)
2

Eric L. Gibson [ARGUED]

Paul L. Gray

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

Chaka Fattah, Jr. [ARGUED]

Philadelphia FDC

700 Arch Street

P.O. Box 562

Philadelphia, PA 19105

Pro Se Appellant

Ellen C. Brotman1[ARGUED]

Suite F200

150 North Radnor Chester Road

Radnor, PA 19087

Counsel for Court Appointed Amicus Curiae

 

1 Ms. Brotman was appointed by the Court to serve 

as Amicus Curiae on behalf of the defendant. We thank 

Ms. Brotman for her excellent advocacy, which she 

provided on an expedited basis.
3

________________

OPINION

________________

SMITH, Chief Judge.

On February 29, 2012, law enforcement officers 

executed sealed search warrants at the home and office of 

defendant Chaka Fattah, Jr. The search occurred more 

than two years before Fattah was indicted, but members 

of the press had somehow learned about the 

investigation; several reporters waited at Fattah’s home

to report the story. How did they find out? At Fattah’s

trial, an FBI agent admitted that he had, over the course 

of several months, disclosed confidential information to a 

reporter in exchange for information pertinent to the 

investigation.

Fattah argues that the FBI agent’s conduct violated 

the Sixth Amendment because the pre-indictment press 

caused him to lose his job, which in turn rendered him

unable to retain the counsel of his choice. Fattah also 

argues that the agent’s conduct violated his Fifth 

Amendment right to due process. We conclude that 

neither argument prevails. As the Government concedes, 

the agent’s conduct was wrongful. We are unable, 

however, to conclude that Fattah is entitled to relief.

Fattah also raises a number of additional claims

regarding the sufficiency of the indictment, constructive 

amendment of the indictment, improper joinder of 
4

counts, and the particularity of the search warrants. We 

reject those arguments as well. Accordingly, we will 

affirm the judgment of the District Court.

I

On July 29, 2014, more than two years after the 

searches and media coverage described above, a grand 

jury returned an indictment charging defendant Chaka 

Fattah, Jr. with twenty-three counts: one count of bank 

fraud, in violation of 18 U.S.C. § 1344; eight counts of 

making false statements to obtain loans, in violation of 

18 U.S.C. § 1014; one count of making false statements 

to settle a loan, in violation of 18 U.S.C. § 1014; three 

counts of making false statements concerning loans 

insured by the Small Business Administration, in 

violation of 18 U.S.C. § 1001; four counts of filing false 

federal income tax returns, in violation of 26 U.S.C. 

§ 7206; one count of failing to pay federal income tax, in 

violation of 26 U.S.C. § 7203; one count of theft from a 

program receiving federal funds, in violation of 18 

U.S.C. § 666(a)(1)(A); four counts of wire fraud, in 

violation of 18 U.S.C. § 1343; and aiding and abetting, in 

violation of 18 U.S.C. § 2. A grand jury returned a 

Superseding Indictment with minor amendments on 

March 3, 2015.

The charges fall into three basic categories.

The first set of charges relate to Fattah’s

fraudulently obtaining and failing to repay lines of credit.

In applying for lines of credit, Fattah represented to 
5

various banks that his company, 259 Strategies, LLC, 

would use the money for business purposes when in fact 

Fattah intended to use the money for personal expenses 

like gambling debts, clothing, jewelry, a BMW, and 

liquor. Fattah also failed to disclose his outstanding debts 

and misrepresented facts about his company’s 

operational status and financials. Fattah recruited his 

roommate, Matthew Amato, to make similar 

misrepresentations to obtain additional lines of credit. 

The Superseding Indictment also charges Fattah with 

making false statements to avoid repaying some of the

banks.

Second, the Superseding Indictment charged

Fattah with tax evasion. Specifically, Fattah failed to 

report certain income from his other businesses, 

including income from his sham concierge service,

American Royalty. For example, Fattah accepted $10,000 

from an eighteen-year-old after promising that American 

Royalty would obtain an American Express black card 

for the teenager. Fattah never did so; instead, he kept the 

money and failed to report it as income.

And third, the Superseding Indictment charged

Fattah with defrauding the Philadelphia School District 

(“PSD”). Fattah’s company, 259 Strategies, contracted 

with Delaware Valley High School (“DVHS”), a forprofit educational provider. Fattah thereafter became 

DVHS’s Chief Operating Officer. DVHS, in turn, signed 

a $2.1 million contract with the PSD to run the 

“Southwest” school for troubled students. Through his 
6

position at DVHS, Fattah submitted fraudulent budgets to 

the PSD that requested funding for nonexistent jobs and 

unperformed services. All told, the PSD overpaid 

$940,000 over a two-year period, and Fattah personally 

pocketed part of that sum.

Fattah declined representation from the Federal 

Community Defender Office for the Eastern District of 

Pennsylvania and has proceeded throughout this 

litigation pro se. Before trial began, Fattah filed a motion 

to dismiss the indictment. Among other accusations, 

Fattah alleged that the Government had leaked 

confidential information about the investigation to the 

press. Fattah argued, inter alia, that the Government’s 

conduct violated his Fifth and Sixth Amendment rights. 

The District Court denied the motion, concluding that 

there was no evidence of a leak.

Trial commenced on October 15, 2015. On 

October 27, the FBI agent in charge of the investigation 

testified that he did in fact leak confidential information 

to a reporter in exchange for background information 

about the PSD. The agent explained that he had revealed 

the existence of sealed search warrants, provided the time 

and location of the search, discussed the content of 

undercover recordings, and gave specific information 

about Fattah’s business dealings, including the amount of 

money he had been paid through his work.

After the agent’s testimony, Fattah (through 

standby counsel) moved for a hearing to determine 

whether the Government violated grand jury secrecy or 
7

its obligations under Brady v. Maryland, 373 U.S. 83 

(1963). The District Court denied the motion.

2

On November 5, 2015, a jury found Fattah guilty 

on all counts except one (Count 17, filing a false income 

tax return for the year 2009). On February 2, 2016, the 

District Court sentenced Fattah to serve sixty months’

imprisonment and five years’ supervised release, and to 

pay $1,172,157 in restitution plus a special assessment 

fee of $2,125. Fattah timely appealed. By Order dated 

January 23, 2017, the Court appointed Ellen C. Brotman

as Amicus Curiae on behalf of Fattah.

II3

We begin with Fattah’s claims that the FBI agent’s 

conduct violated Fattah’s Sixth Amendment right to the 

counsel of his choice and violated his Fifth Amendment 

right to due process. We reject both arguments.

A

Before reaching the merits of the Fifth and Sixth 

Amendment issues, we must first address the issue of 

 

2 Fattah does not challenge that denial on appeal.

3 The District Court had jurisdiction pursuant to 18 

U.S.C. § 3231. We have jurisdiction pursuant to 28 

U.S.C. § 1291.
8

waiver.

4 We will not enforce waiver against either party.

“[I]t is well settled that arguments asserted for the 

first time on appeal are deemed to be waived and 

consequently are not susceptible to review in this Court 

absent exceptional circumstances.” United States v. Rose,

538 F.3d 175, 179 (3d Cir. 2008) (quoting United States 

v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005)). When 

reviewing a district court’s ruling on a pretrial motion, 

including a motion alleging “a defect in instituting the 

prosecution,” Fed. R. Crim. P. 12(b)(3)(A), we will not 

consider any unpreserved arguments absent “good 

cause,” Fed. R. Crim. P. 12(c)(3); see United States v. 

Joseph, 730 F.3d 336 (3d Cir. 2013); Rose, 538 F.3d at 

182. This rule applies to criminal defendants and to the 

Government alike. See, e.g., United States v. Tracey, 597 

F.3d 140, 149 (3d Cir. 2010) (“[T]he Government waived 

 

4

In criminal procedure, the term “waiver” 

ordinarily refers to the intentional relinquishment of a 

known right, as distinct from “forfeiture.” See United 

States v. Olano, 507 U.S. 725, 733 (1993). However, an 

earlier version of Rule 12 provided that a party “waives” 

a defense by simply failing to timely raise it. The 

reference to waiver was deleted in the 2014 Amendments 

to “avoid possible confusion.” Fed. R. Crim. P. 12 

advisory committee’s note. To the extent that we repeat 

that terminology here, we use it in the sense embodied in

the earlier version of Rule 12 and our case law—to refer 

to a party’s failure to raise an argument—not in the sense 

of intentional relinquishment.
9

this argument by failing to raise it before the District 

Court.”).

This case reaches us in an unusual posture. Fattah 

properly raised both his Fifth and Sixth Amendment 

claims in a pretrial motion. But at that time, the 

Government did not know about the leaks. It defended 

against Fattah’s pretrial motion by arguing that the 

presence of reporters was insufficient evidence to justify

an evidentiary hearing. The District Court agreed. But at 

trial, the agent’s testimony confirmed Fattah’s suspicion. 

With the assistance of standby counsel, Fattah filed a 

new motion for a hearing. But the new motion did not 

reraise the Fifth and Sixth Amendment issues. As a 

result, neither the Government nor the District Court 

substantively addressed those arguments.

Although the Government does not explicitly 

argue waiver, it still complains that Fattah relies on 

“arguments that were not presented to the district court at 

the appropriate time and were never addressed by the 

district court.” Resp. to Amicus Br. 15. We nevertheless

decline to enforce waiver against Fattah because 

“requiring a defendant to re-raise the issue[s] . . . would 

be an exercise in wasteful formality.” United States v. 

Sanders, 485 F.3d 654, 657 (D.C. Cir. 2007). And given 

the late-breaking revelation of the agent’s conduct, 

combined with Fattah’s failure to reraise the arguments, 

we conclude that any waiver by the Government is 

excusable for good cause.

We proceed, then, to the merits.
10

B

Fattah’s Sixth Amendment claim is premised on a 

novel theory and a long causal chain. The theory is that, 

even where the government’s misconduct was

undisputedly not directed towards attorneys’ fees or 

intended to interfere with the defendant’s right to 

counsel, a defendant may establish a Sixth Amendment 

violation by proving that the misconduct reduced his preindictment income and thereby impaired his ability postindictment to hire the counsel of his choice. As for the 

causal chain, Fattah asserts that the FBI agent spoke to a 

reporter, which caused the publication of news stories 

about Fattah, which in turn caused DVHS to terminate 

Fattah’s employment. According to Fattah, the unrealized 

income from that employment—allegedly $432,000 (plus 

bonus)—was necessary for him to afford counsel of his 

choice. Even if we were to accept Fattah’s far-reaching 

theory, we decline to remand for an evidentiary hearing 

because Fattah’s claim to unrealized income is 

contradicted by his own undisputed statements and 

actions.

1

The Sixth Amendment to the United States 

Constitution provides, “In all criminal prosecutions, the 

accused shall enjoy the right . . . to have the Assistance of 

Counsel for his defence.” U.S. Const. amend. VI. The 

Sixth Amendment guarantees not only the right to 

effective assistance of counsel, see, e.g., Buck v. Davis, 

137 S. Ct. 759, 775 (2017), but also the “fair opportunity 
11

to secure counsel of [one’s] own choice,” Powell v. 

Alabama, 287 U.S. 45, 53 (1932). “The right to select 

counsel of one’s choice . . . has been regarded as the root 

meaning of the constitutional guarantee.” United States v. 

Gonzalez-Lopez, 548 U.S. 140, 147–48 (2006). The Sixth 

Amendment protects the “fundamental” right “to be 

represented by an otherwise qualified attorney whom that 

defendant can afford to hire.” Luis v. United States, 136 

S. Ct. 1083, 1089 (2016) (plurality opinion) (citation 

omitted).

To argue that the deprivation of income constitutes 

a Sixth Amendment violation, Fattah principally relies on 

United States v. Stein, 541 F.3d 130 (2d Cir. 2008). In 

Stein, the accounting firm KPMG and several of its 

employees were under federal investigation for allegedly 

creating tax shelters for their clients. At the time, the 

Department of Justice had a stated policy of considering 

whether a corporation “appears to be protecting its 

culpable employees” when deciding whether to bring 

criminal charges against the corporation. Id. at 136. In a 

meeting with KPMG’s counsel, the prosecutors stated 

that they would take this policy “into account” regarding 

KPMG’s decision to pay its employees’ legal fees. Id. at 

137. The prosecutors’ statements pressured KPMG into 

withdrawing financial support for employees who were 

indicted. Id. at 139–40.

The district court in Stein found that the 

Government pressured KPMG into modifying its policy 

in order to “minimize the involvement of defense 
12

attorneys,” and, but for that conduct, “KPMG would have 

paid defendants’ legal fees and expenses without 

consideration of cost.” Id. at 141 (citation omitted). The

district court ruled that the Government violated the 

defendants’ Sixth Amendment rights, and the Second 

Circuit affirmed. The Second Circuit held that “the Sixth 

Amendment protects against unjustified governmental 

interference with the right to defend oneself using 

whatever assets one has or might reasonably and lawfully 

obtain.” Id. at 156. The Second Circuit also held that the 

Government’s pre-indictment conduct had “postindictment effects,” and therefore implicated the Sixth 

Amendment even though the right to counsel attaches 

upon indictment. Id. at 153.

Stein tested the outer limits of the Sixth 

Amendment’s protection. Fattah would have us extend 

those boundaries even further. Unlike Stein, the 

Government here undisputedly lacked any “desire” or 

“purpose” to “deliberately interfere” with counsel. Id. at 

141, 153, 155. Any alleged loss of income would have 

been an unintended and incidental consequence of the 

agent’s conduct. Also unlike Stein, DVHS decided to 

terminate Fattah’s employment5independent of any 

influence from prosecutors. There was no “close nexus” 

between DVHS and the Government with regard to the 

 

5 The Government states that it is in possession of 

evidence that Fattah was never fired from DVHS, but 

instead decided not to return to work. We will, however,

consider only evidence of record.
13

termination. See id. at 146–51. But we need not resolve 

the case on that basis. Based on the unique facts of this 

case, Fattah’s claim fails for a more fundamental reason.

Fattah’s claim depends on the factual assertion that the 

Government deprived him of income that he otherwise 

would have “reasonably and lawfully obtain[ed],” id. at 

156, but Fattah has failed to make an adequate 

preliminary showing to support that assertion. As such, 

he would not be entitled to an evidentiary hearing on his 

Sixth Amendment claim even if his broad-sweeping legal 

theory were cognizable.

6

 

6 On May 17, 2017, a district court denied the 

Government’s motion for summary judgment in a 

parallel civil matter, Fattah v. United States, No. 14-cv1092, 2017 WL 2152171 (E.D. Pa. May 17, 2017). The 

court held that “conflicting versions of why and how 

Fattah’s business relationship with [DVHS] ended 

preclude summary judgment” because “[r]esolution of 

the conflict turns on a credibility determination to be 

made by the fact finder.” Id. at *9. Our decision in this 

case is unrelated to that holding. Our conclusion is based 

on the minimal preliminary showing advanced in this 

criminal action, combined with gaps in Fattah’s proffer

specific to the Sixth Amendment context. Even if Fattah 

ultimately succeeds in his civil action, that would not 

mend the many inadequacies in his Sixth Amendment 

claim as presented to the District Court in this case. We 

describe those inadequacies in greater detail below.
14

2

Because of the procedural posture of this case, the 

District Court did not consider whether to hold an 

evidentiary hearing on Fattah’s Sixth Amendment claim 

after the FBI agent testified. We conclude that, even if 

the issue had been reraised and considered by the District 

Court, Fattah would not have been entitled to a hearing.

To be entitled to an evidentiary hearing, the 

defendant’s moving papers must be “sufficiently specific, 

non-conjectural, and detailed to enable the court to

conclude that (1) the defendant has presented a colorable 

constitutional claim, and (2) there are disputed issues of 

material fact that will affect the outcome of the motion.” 

United States v. Hines, 628 F.3d 101, 105 (3d Cir. 2010); 

see also United States v. Voigt, 89 F.3d 1050, 1067 (3d 

Cir. 1996).

To support his request for an evidentiary hearing, 

Fattah relies on an affidavit he filed in the District Court 

that attests to the truth of the representations presented in 

his pretrial Motion to Quash and Reply Brief. Those

filings, in turn, assert that the Government “caused him 

to be without funds he would have earned which 

undoubtedly affect[ed] his choice of counsel and ability 

to mount a defense.” DDE 34, at 98. Fattah claims that he 

“reasonably expected to continually receiv[e] his contract 

payments” in the amount of “more than $432,000 

($144,000 per year), plus a bonus of $117,000, prior to 

trial.” Fattah Br. 15. (internal quotation marks omitted).
15

But as the Government argues, Fattah was 

preparing to leave DVHS on his own accord. The record 

discloses that Fattah sent an email to the school system

mere days before the searches. The email asked whether 

a whistleblower would be entitled to a reward for 

revealing fraud. Meanwhile, Fattah had prepared a 

business plan to begin his own competing school, called 

Dreamchasers. Based on these facts, the Government 

argues that Fattah planned to reveal DVHS’s fraud to 

eliminate a competitor and void a noncompete clause in 

his employment contract. In Fattah’s own words, “when 

this all comes out I’m basically effectively resigned. I’m 

done. I was going to be on my way out the door anyway. 

I wanted to start my own thing and go after some 

opportunities.” Supp. App. 89.

Fattah does not dispute that he prepared a business 

plan and sent the email. Nor does he deny making the 

foregoing statement. Thus, by his own account, Fattah 

was “going to be on [his] way out,” id., of the very job 

which he now claims he would have remained in for 

more than two years. Moreover, by sending the email,

Fattah took a concrete step to undermine DVHS and his 

prospects of continued employment at the company.

Accordingly, the undisputed record contradicts Fattah’s

claimed expectation of “continually receiving his 

contract payments” from DVHS. Fattah Br. 15.

Fattah attempts to resolve this contradiction by 

arguing that there is a material dispute of fact as to when

he would have left DVHS. “My plan was to raise money
16

[for Dreamchasers], and if I didn’t raise that money I 

would have stayed at Delaware Valley High School.” 

Oral Arg. 9:29; see also Reply Br. 5–6. But according to

that argument, Fattah’s continued employment would be

contingent on whether a hypothetical investor would 

have taken an interest in a hypothetical business. For 

Fattah’s claim of $432,000 (plus bonus) in lost income to 

succeed, the District Court would have been required to 

speculate that no investor would have taken an interest in 

Dreamchasers over more than two years. Alternatively, 

the District Court would have been required to speculate

that, if Fattah had succeeded in raising capital for 

Dreamchasers, the FBI agent’s conduct thwarted what 

would have otherwise been a comparably successful 

business.

Fattah has not claimed to be in possession of any 

evidence that would enable the District Court to 

determine what contracts, if any, Fattah’s nonexistent 

business might have won, or what income, if any, Fattah 

might have otherwise earned. Because there is no dispute 

that Fattah was going to leave DVHS, and the question of 

timing is speculative, Fattah has failed to show the 

existence of a material dispute of fact capable of 

resolution at an evidentiary hearing. Fattah’s 

counterfactual ability to afford counsel is purely 

conjectural.

Fattah’s claim is speculative for an additional

reason. The Government executed a search warrant not 

only at Fattah’s apartment, but also at his office located 
17

in DVHS’s headquarters. DVHS, therefore, did not learn 

about the investigation from the news media. The case 

agent testified that he thought David Shulick, DVHS’s

CEO, possessed a copy of the warrant, or at least 

“discussed receiving copies of the search warrant from 

whomever it was served at -- on DVHS.” Supp. App. 

370; see Fed. R. Crim. P. 41(f)(1)(B)–(C). Fattah did not 

proffer any testimony or other evidence to suggest that 

DVHS’s decision to cut ties with Fattah was motivated 

by the news reports rather than by DVHS’s independent 

knowledge of the investigation.

Finally, the money at issue in Stein would have 

directly funded the defendants’ litigation expenses. Here, 

Fattah claims that he was deprived of general, fungible 

income. Thus, whether the Government in fact 

“imped[ed] the supply of defense resources,” Stein, 541 

F.3d at 156, turns on both Fattah’s income and his 

expenses. The evidence adduced at trial revealed that, 

despite his substantial income through DVHS, Fattah had 

financial difficulties. He incurred lavish personal 

expenses, owed exorbitant gambling debts, and owed 

thousands of dollars in unpaid taxes. He used lines of 

credit to cover his personal expenses and would take out 

one line of credit to cover the last. Thus for Fattah to 

have been able to afford the expensive counsel to which 

he claims to be entitled, the District Court on remand 

would be required to speculate that Fattah would have 

either made alterations to his lifestyle or would have been 

able to continually circulate lines of credit. Fattah has 

made no preliminary showing in support of any such 
18

finding. Certainly if Fattah had continued his practice of 

lying in order to obtain new lines of credit, access to 

those funds would not have been protected by the Sixth 

Amendment. See Luis, 136 S. Ct. at 1088 (holding that 

the Sixth Amendment protects against “the pretrial 

restraint of legitimate, untainted assets”).

We are far from the facts of Stein, where the 

Government directly interfered with an employer’s 

unconditional payment of legal expenses. Even if we 

were prepared to entertain the notion that incidentally 

reducing a defendant’s pre-indictment income might 

violate the Sixth Amendment—itself a dubious 

proposition—the attenuated causal chain alleged in this 

case must be supported by a “sufficiently specific, nonconjectural, and detailed” preliminary showing of a 

material dispute of fact. Hines, 628 F.3d at 105. Far from 

meeting that standard, Fattah’s undisputed statements and 

actions directly contradict the facts proffered in support 

of his Sixth Amendment claim. His efforts to resolve the 

contradiction rely entirely on “[]conjectur[e].” Id.

Accordingly, we decline to remand for an evidentiary 

hearing or otherwise grant relief on Fattah’s Sixth 

Amendment claim.

C

Second, Fattah argues that the FBI agent’s conduct

violated his right to due process guaranteed by the Fifth 

Amendment. Although the agent’s conduct was 

unquestionably wrongful, it does not meet the high bar of
19

outrageous misconduct that would entitle Fattah to relief 

under the Fifth Amendment.

1

The Fifth Amendment to the Constitution of the 

United States provides that “No person shall be . . . 

deprived of life, liberty, or property, without due process 

of law.” U.S. Const. amend. V. The Supreme Court has 

emphasized that the “touchstone of due process” is 

protection against arbitrary government action. Cty. of 

Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (citation 

omitted). Government action is “arbitrary in the 

constitutional sense” when it is “so egregious, so 

outrageous, that it may fairly be said to shock the 

contemporary conscience.” Id. at 846, 847 n.8 (citation 

omitted). “While the measure of what is conscience 

shocking is no calibrated yard stick, it does, as Judge 

Friendly put it, ‘poin[t] the way.’” Id. at 848 (alteration in 

original) (citation omitted).

The conduct of a law-enforcement officer may

violate the Fifth Amendment if it is “so outrageous that 

due process principles would absolutely bar the 

government from invoking judicial processes to obtain a 

conviction.” United States v. Russell, 411 U.S. 423, 431–

32 (1973). For example, in Rochin v. California the 

Supreme Court held that an officer violated the Fifth 

Amendment when, in order to preserve evidence that the 

suspect had swallowed, he ordered a doctor to pump the

suspect’s stomach—a practice the Supreme Court 

considered “brutal” and “offensive.” 342 U.S. 165, 174
20

(1952). But “the judiciary is extremely hesitant to find 

law enforcement conduct so offensive that it violates the 

Due Process Clause.” Voigt, 89 F.3d at 1065. “We must 

necessarily exercise scrupulous restraint before we 

denounce law enforcement conduct as constitutionally 

unacceptable; the ramifications are wider and more 

permanent than when only a statutory defense is 

implicated.” United States v. Jannotti, 673 F.2d 578, 607

(3d Cir. 1982) (en banc).

This Court has considered, but rejected, Fifth 

Amendment challenges to law enforcement conduct in a 

variety of contexts, such as where the Government 

allegedly used an undercover agent’s sexual relationship 

with a suspect to obtain inculpatory information, see 

United States v. Nolan-Cooper, 155 F.3d 221, 232 (3d 

Cir. 1998), and where the Government allegedly 

interfered with the defendant’s attorney-client privilege, 

see United States v. Hoffecker, 530 F.3d 137, 156 (3d 

Cir. 2008); Voigt, 89 F.3d at 1066. Claims of outrageous 

government misconduct are commonly asserted where an 

undercover officer allegedly aided or participated in the 

criminal activity charged against the defendant. See, e.g.,

Hampton v. United States, 425 U.S. 484 (1976) (plurality 

opinion); Russell, 411 U.S. 423.

This Court has granted relief on a claim of 

outrageous government misconduct only once. In United 

States v. Twigg, 588 F.2d 373 (3d Cir. 1978), this Court 

held that the Government violated the Due Process 

Clause when an agent was “completely in charge and 
21

furnished all of the [relevant] expertise” to create a 

methamphetamine laboratory. Id. at 380–81. In short, the 

Government “created the crime for the sole purpose of 

obtaining a conviction.” United States v. Dennis, 826 

F.3d 683, 695 (3d Cir. 2016) (citation omitted). Since 

Twigg was decided, this Court has repeatedly 

distinguished,

7

and even questioned, its holding. See, 

e.g., United States v. Beverly, 723 F.2d 11, 12 (3d Cir. 

1983).

2

This is not a case like Twigg, where the 

Government’s conduct was intertwined with the 

defendant’s. Instead, Fattah and amicus counsel argue 

that, because the FBI agent violated (or may have 

violated) certain laws, his conduct is so outrageous that it 

bars conviction. See Russell, 411 U.S. at 430. We 

conclude, however, that the agent’s conduct “is distinctly 

not of that breed.” Id. at 432.

First, Fattah and amicus counsel argue that a Fifth 

Amendment violation was predicated on a separate 

 

7 See, e.g., United States v. Lakhani, 480 F.3d 171, 

182 (3d Cir. 2007); United States v. Pitt, 193 F.3d 751, 

761 (3d Cir. 1999); United States v. Driscoll, 852 F.2d 

84, 86 (3d Cir. 1988); United States v. Martino, 825 F.2d 

754, 762–63 (3d Cir. 1987); United States v. Ward, 793 

F.2d 551, 555 (3d Cir. 1986); Jannotti, 673 F.2d at 608–

09.
22

violation of the Sixth Amendment. But as we have 

already held, Fattah failed to establish a Sixth 

Amendment violation.

Second, amicus counsel argues that the agent 

violated Rule 6(e) of the Federal Rules of Criminal 

Procedure by disclosing Fattah’s identity as the target of 

a grand jury investigation. But the District Court found 

that Fattah failed to make a preliminary showing of such 

a violation, and Fattah does not challenge that finding on 

appeal.8

Third, amicus counsel argues that the officer may 

have committed obstruction of justice in violation of 18 

U.S.C. § 1503(a). But Fattah and amicus counsel fail to 

show an “evil intent to obstruct” the due administration 

of justice. United States v. Aguilar, 515 U.S. 593, 599 

(1995). See generally United States v. Sussman, 709 F.3d 

155, 168 (3d Cir. 2013). On the limited record before us, 

we cannot prejudge the commission of this alleged

 

8 Even if that finding were challenged on appeal, 

we note a defendant must show prejudice to win 

dismissal of the indictment for a breach of grand jury 

secrecy; showing a simple violation of Rule 6(e) is 

insufficient. Bank of Nova Scotia v. United States, 487 

U.S. 250, 255 (1988). But if defendants could simply 

reframe a violation of Rule 6(e) as a violation of the Fifth 

Amendment, they could evade Nova Scotia’s prejudice 

requirement entirely.
23

offense.9 Such a determination is better left to the 

prosecutorial process following a full investigation.

Fourth, amicus counsel argues that the agent may 

have violated FBI policy. But the violation of internal 

policy alone does not amount to a violation of 

constitutional due process. See United States v. Christie, 

624 F.3d 558, 573 (3d Cir. 2010) (rejecting a claim of 

outrageous misconduct where the Government allegedly 

violated guidelines that “do not themselves create rights 

for criminal defendants”).

Finally, we are left with the arguments that the FBI 

agent disclosed certain confidential information 

contained in Fattah’s tax returns in violation of 26 U.S.C. 

§ 6103.10 According to Fattah’s opening brief, the 

 

9 Amicus counsel relies on out-of-circuit dicta. See 

N.Y. Times Co. v. Gonzales, 459 F.3d 160, 163 (2d Cir. 

2006). Regardless, it is not settled that such a violation

would entitle Fattah to relief. See United States v. 

Payner, 447 U.S. 727, 737 n.9 (1980) (“[T]he limitations 

of the Due Process Clause . . . come into play only when 

the Government activity in question violates some 

protected right of the defendant.” (quoting Hampton, 425 

U.S. at 490)).

10 Amicus counsel adds that the agent may have 

committed a misdemeanor under 18 U.S.C. § 1905, and 

also declares that the agent lied to the Magistrate Judge 

about the importance of confidentiality when he sought

an order placing the search warrants under seal. These 
24

Government conceded that violation in a parallel civil

matter. But we are unable to conclude that the disclosure 

of this financial information, standing alone or in 

combination with any of the above considerations, is “so 

outrageous that due process principles would absolutely 

bar the government from invoking judicial processes to

obtain a conviction.” Russell, 411 U.S. at 431–32. “[T]he 

remedy lies, not in freeing the equally culpable 

defendant, but in prosecuting the police” if such a 

violation occurred. Hampton, 425 U.S. at 490; see 

Jannotti, 673 F.2d at 609; United States v. Walters, 16-

cr-338, slip op. at 18–19 (S.D.N.Y. Mar. 1, 2017).

Accordingly, we conclude that the FBI agent’s 

conduct did not violate Fattah’s Fifth or Sixth 

Amendment rights. That said, our opinion in this case

should by no means “be construed as an approval of the 

government’s conduct.” Beverly, 723 F.2d at 13. To 

ensure the public trust, the Government bears a serious 

responsibility to investigate any malfeasance and take 

appropriate action. We hope that the FBI and 

prosecutorial authorities have done just that.

III

We now turn to Fattah’s four remaining arguments 

that (A) various counts of the indictment fail to state an 

offense, (B) the Government constructively amended the 

 

additional considerations do not alter our constitutional 

analysis.
25

indictment at trial, (C) the Superseding Indictment 

improperly joins unrelated charges, and (D) the 

Government’s search warrants were impermissibly 

broad. We reject each argument.

A

First, Fattah argues that various counts in the 

indictment fail to state an offense. See Fed. R. Crim. P. 

7(c)(1). Reviewing de novo, we reject Fattah’s argument.

“[A]n indictment is facially sufficient if it (1) 

contains the elements of the offense intended to be 

charged, (2) sufficiently apprises the defendant of what 

he must be prepared to meet, and (3) allows the 

defendant to show with accuracy to what extent he may 

plead a former acquittal or conviction in the event of a 

subsequent prosecution.” United States v. Stevenson, 832 

F.3d 412, 423 (3d Cir. 2016) (quoting United States v. 

Huet, 665 F.3d 588, 595 (3d Cir. 2012)). We address the 

Counts in the same order as Fattah’s brief.

1. Count 12 (Bank Fraud in violation of 18 U.S.C. 

§ 1344). Count 12 charged Fattah with misrepresenting to 

United Bank that he would use a line of credit for 

business expenses when he meant to use the money for 

personal expenses. Fattah argues that Count 12 merely 

charged breach of contract, not a criminal offense. 

According to Fattah, the conduct charged in the 

Superseding Indictment is consistent with making 

truthful representations at the time he applied for the loan

but later failing to use the funds as promised.
26

But Count 12 properly charged that Fattah 

employed “false and fraudulent pretenses, representations 

or promises” in order “to obtain” a loan. Supp. App. 18; 

18 U.S.C. § 1344. In other words, the Superseding 

Indictment plainly charged Fattah with making 

representations that he knew to be false or fraudulent at 

the time he made them. It then supported that allegation 

with specific facts about Fattah’s representations, his 

subsequent conduct, and the timing in between.

Fattah relies on several inapposite cases that 

address a defendant’s failure to disclose information to a 

bank. For example, in United States v. Steffen, 687 F.3d 

1104, 1116 (8th Cir. 2012), the Eighth Circuit held that a 

charge of bank fraud alleged mere breach of contract 

where, after obtaining approval for a loan, the defendant 

sold collateral without notifying the bank as required by 

the loan agreement. The Eighth Circuit concluded that 

the indictment failed to state an offense, in part, because 

the “breach of the security agreement was not 

accompanied or preceded by express 

misrepresentations.” Id.

Here, by contrast, the Superseding Indictment

properly charged that Fattah made express 

misrepresentations “to obtain” the loan. Supp. App. 18. 

Whether Fattah’s statements were knowing 

misrepresentations (as opposed to sincere, unfulfilled 

promises) was a question of fact for the jury. The jury, 
27

properly instructed, found beyond a reasonable doubt that 

Fattah made knowing misrepresentations.11

 

11 Fattah argues that the Government failed to 

prove intent to defraud beyond a reasonable doubt. 

Reviewing the evidence in a light most favorable to the 

prosecution, Jackson v. Virginia, 443 U.S. 307, 319 

(1979), we reject this argument because the Government 

introduced ample circumstantial evidence of intent. For 

example, within two days of receiving approval for the 

loan, Fattah withdrew substantial funds from United 

Bank, deposited the funds in his personal checking 

account, and then began using the funds for personal 

expenses such as paying down gambling debts. The close 

timing of events, combined with Fattah moving the funds 

in an apparent effort to prevent United Bank from 

learning the funds’ true uses, permit an inference that 

Fattah never intended to use the loan as promised. That 

conclusion is further supported by Fattah’s own 

statements, which demonstrate a cavalier disregard for 

the funds’ appropriate uses. See, e.g., Supp. App. 82 

(“F*** the credit lines; it’s not about credit lines it’s 

about figuring out how to make money and having fun 

. . . .”); Supp. App. 188 (United Bank lending officer 

testifying that Fattah stated “something to the effect of 

that it’s his business, his company that he’s entitled to 

utilize the funds as he determined”). Thus, based on the 

evidence presented, a “rational trier of fact could have 

found the essential elements of the crime beyond a 

reasonable doubt.” Jackson, 443 U.S. at 319.
28

2. Counts 20–23 (Wire Fraud in violation of 18 

U.S.C. § 1343). The wire fraud Counts charge Fattah 

with requesting excess funds for DVHS’s budgets and 

pocketing the surplus. Fattah repeats his breach-ofcontract argument that the Superseding Indictment 

merely charged that he failed to perform all of the 

services identified in the budgets, not that he lied to 

obtain those funds. We reject this argument for the 

reasons provided above.12

3. Count 19 (Theft from a Program Receiving 

Federal Funds in violation of 18 U.S.C. § 666(a)(1)(A)). 

This Count alleged that Fattah’s scheme to manipulate 

DVHS’s budgets defrauded the PSD, an organization that 

received more than $10,000 in federal assistance. Supp. 

App. 29. Fattah relies on United States v. Copeland, 143 

F.3d 1439, 1441 (11th Cir. 1998), and other similar cases

for the proposition that a company does not receive 

“Federal assistance,” 18 U.S.C. § 666(b), if it is “engaged 

in purely commercial transactions with the federal 

 

12 On Counts 20–23, Fattah’s argument based on 

sufficiency of the evidence likewise fails. The 

Government introduced sufficient circumstantial 

evidence from which a reasonable jury could conclude 

that Fattah knew the budgets were false at the time he 

submitted them. The evidence included Fattah’s own 

tape-recorded statements, records from his computers, 

wire transactions from DVHS to 259 Strategies, and 

statements from DVHS employees questioning the 

veracity of the budgets.
29

government,” Copeland, 143 F.3d at 1441. On that basis, 

Fattah argues that DVHS’s contractual relationship with 

the PSD was “purely commercial” and therefore outside 

the scope of § 666. But DVHS’s contract with the PSD is 

irrelevant. The applicability of § 666 turns on the PSD’s 

relationship with the federal government, not on its 

relationship with DVHS. Fattah does not dispute that the

PSD received sufficient federal assistance to place it 

within the ambit of § 666(b). Therefore, defrauding the

PSD amounted to a violation of § 666(a)(1)(A).

4. Counts 1–7 (False Statements to Obtain Bank 

Loans in violation of 18 U.S.C. § 1014). Counts 1–4 

charge Fattah with making false statements to four 

different banks in order to obtain loans. Fattah reiterates 

his breach-of-contract argument, which we reject for the 

reasons provided above. Counts 5–7 charge that Fattah 

aided and abetted false statements by his friend, Matthew 

Amato. According to Fattah, the indictment charges him 

with merely knowing Amato would lie to the bank, 

which is not a crime. But the Counts properly alleged that 

Fattah “knowingly induced and procured” Amato to 

commit the offenses. Supp. App. 9–11.

Fattah also raises an argument specific to Count 1. 

Count 1 alleges that Fattah used a false tax return to 

misrepresent financial information about 259 Strategies

to a bank. Fattah argues that this is improper because the 

Government did not separately charge him with filing a 

false tax return for that year; such a charge would be 

time-barred. But a false tax return plainly constitutes a
30

“false statement or report.” 18 U.S.C. § 1014; see United 

States v. Nash, 115 F.3d 1431, 1439 (9th Cir. 1997) 

(“[T]he 1985 and 1986 false tax returns were separate 

documents that could independently support separate 

counts under section 1014.”). The fact that the statute of 

limitations lapsed on a separate tax offense does not, as 

Fattah argues, render the return “true and correct,” Fattah 

Br. 33, for purposes of the charged offense. Cf. United 

States v. Forsythe, 560 F.2d 1127, 1135 (3d Cir. 1977)

(holding that the federal statute of limitations governs 

RICO charges even if the predicate offenses were timebarred); United States v. Guerrero, 882 F. Supp. 2d 463, 

495 (S.D.N.Y. 2011) (holding that charges for drugrelated murders “are not subject to a statute of 

limitations, regardless of whether the underlying 

narcotics conspiracy, if charged separately, would be 

time-barred” (citation omitted)), aff’d, 560 F. App’x 110 

(2d Cir. 2014).

5. Count 8 (False Statements Concerning a Loan 

Insured by the Small Business Administration in violation 

of 18 U.S.C. § 1001). The indictment charged that Fattah 

told a bank that he had an “inability to earn substantial 

income.” Supp. App. 12. Though Fattah calls this a 

“statement of opinion,” Fattah Br. 34, whether that 

statement was a knowing misrepresentation was likewise 

a question of fact for the jury. Nor was that statement the 

only misrepresentation charged; the indictment also 

charged Fattah with misrepresenting the dollar figure of 

his income and the operational status of 259 Strategies.
31

Fattah also argues that his statement was protected 

by the First Amendment, but it is well established that 

“the First Amendment does not shield fraud.” Illinois, ex 

rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 

600, 612 (2003).

6. Count 11 (False Statements to Settle a Bank 

Loan in violation of 18 U.S.C. § 1014). Count 11 charges 

Fattah with lying in a civil deposition in an effort to 

evade repaying one of his creditors. Fattah argues that the 

statute does not cover lying in depositions because, 

otherwise, “no individual would ever sit for a civil 

deposition in state court without invoking their rights to 

remain silent.” Fattah Br. 34.

A false statement taken in a deposition is no less a 

“false statement or report.” 18 U.S.C. § 1014; see United 

States v. Todosijevic, 161 F.3d 479, 483 (7th Cir. 1998). 

Nor is it particularly unusual that a statement made in 

civil litigation could have criminal consequences. That is 

precisely why litigants in civil matters are permitted to 

invoke their Fifth Amendment rights. See, e.g., Lefkowitz 

v. Cunningham, 431 U.S. 801, 805 (1977) (“[S]ince the 

test is whether the testimony might later subject the 

witness to criminal prosecution, the privilege is available 

to a witness in a civil proceeding . . . .”).

7. Count 13 (False Statements to Obtain a Bank 

Loan in violation of 18 U.S.C. § 1014). This Count 

charges Fattah with failing to disclose to a bank, inter 

alia, his other sources of indebtedness. Fattah argues that 

the loan application did not ask for that information. But 
32

the loan application did ask for that information, which 

Fattah omitted. Supp. App. 434. Fattah insists that he was 

not obligated to disclose that information because his 

only outstanding loans were in his sham business’s name,

not his own. Even accepting that distinction arguendo, 

that argument goes to the sufficiency of the evidence, not 

a failure to state an offense. As the Count offers an 

alternative theory of conviction (lies about monthly rent 

and car payments), we will “assume that the jury 

convicted on the factually sufficient theory.” United 

States v. Syme, 276 F.3d 131, 144 (3d Cir. 2002).

Accordingly, we conclude that the Superseding 

Indictment stated offenses on all Counts.

B

Fattah next argues that the Government 

constructively amended the Superseding Indictment by 

introducing certain evidence or making certain arguments 

that “do not appear in the indictment.” Fattah Br. 35. We 

conclude that the Superseding Indictment was not 

constructively amended.

An indictment is constructively amended when 

“the evidence and jury instructions at trial modify 

essential terms of the charged offense” such that “there is 

a substantial likelihood that the jury may have convicted 

the defendant for an offense differing from the offense 

. . . actually charged.” United States v. Repak, 852 F.3d 

230, 257–58 (3d Cir. 2017) (quoting United States v. 

Daraio, 445 F.3d 253, 259–60 (3d Cir. 2006)). “If a 
33

defendant is convicted of the same offense that was 

charged in the indictment, there is no constructive 

amendment.” United States v. Vosburgh, 602 F.3d 512, 

532 (3d Cir. 2010).

First, Fattah identifies certain factual allegations

that were not specifically enumerated in the Superseding 

Indictment. For example, the prosecutor said in his 

opening statement that Fattah “told Sun Bank that 259 

Strategies had one employee. He told Bank of America 

they had three employees.” Fattah Br. 35. While the

Superseding Indictment does not specifically allege that 

Fattah misrepresented the number of employees at 259

Strategies, at most this constitutes a “variance” from the 

facts alleged. Vosburgh, 602 F.3d at 532. Such a variance 

constitutes reversible error “only if it is likely to have 

surprised or has otherwise prejudiced the defense.” Id. 

(quoting Daraio, 445 F.3d at 262). Here, there is no risk 

of surprise because the indictment identified a nonexhaustive list of statements on a single loan 

application—statements that would be well known to 

their author, Fattah.

Second, Fattah identifies arguments and evidence 

that he claims to be irrelevant or prejudicial. For 

example, Fattah complains that the Government 

introduced evidence “intended to inflame the jury” by, 

inter alia, highlighting his $15,000 bill at the Capital 

Grille restaurant (Br. 36, 40), highlighting his gambling 

losses of $125,280 (Br. 37), referring to Fattah as a “son 

of privilege” and as “Congressman Fattah’s son” (Br. 
34

38), referencing Fattah’s condominium at the Ritz 

Carlton (Br. 40, 43), and calling Fattah an “unqualified 

[college] dropout” (Br. 41). Fattah also argued that the 

Government adduced evidence irrelevant to the crime 

charged. For example, he asserts that any evidence about 

how he used the lines of credit is irrelevant because the 

crime was completed at the time Fattah made the 

misrepresentation (Br. 35–36, 38, 44). But these 

objections to relevance and prejudice are quintessentially 

evidentiary arguments governed by Rules 401, 402, and 

403 of the Federal Rules of Evidence. The time to object 

to and appeal the admissibility of that evidence has 

passed. Far from constructively amending the 

Superseding Indictment, the evidence at issue (and the 

Government’s fair commentary on that evidence) provide 

circumstantial illustration of Fattah’s motive, 

opportunity, intent, and knowledge regarding the crimes 

charged.

And third, Fattah argues that the Government 

amended the Superseding Indictment by introducing 

evidence of uncharged crimes. For example, the 

Government introduced evidence that Fattah stole money 

from clients of his sham concierge service, American 

Royalty. That theft was not charged in the Superseding 

Indictment; instead, the evidence was offered to show the 

existence of income that Fattah failed to report on his tax 

return and to his creditors. See Fed. R. Evid. 404(b). 

Again, this did not change the theory of the prosecution 

or modify essential terms of a charged offense. As we 

have held, introducing evidence of other crimes does not 
35

constructively amend the indictment when the jury is 

properly instructed. See Daraio, 445 F.3d at 260 

(“Although we agree with Daraio that the government 

presented a significant amount of evidence concerning 

her prior tax non-compliance beyond that charged in the

indictment, the district court’s instructions ensured that 

the jury would convict her, if at all, for a crime based on 

conduct charged in the indictment.”).

Accordingly, we conclude that the Superseding 

Indictment was not constructively amended.

C

Next, Fattah argues that the indictment improperly 

joins three distinct categories of crime: bank fraud, tax 

fraud, and fraud on the Philadelphia School District. We 

reject this argument as well.

Under Rule 8(a) of the Federal Rules of Criminal 

Procedure, an indictment may include multiple counts 

that “are of the same or similar character, or are based on

the same act or transaction, or are connected with or 

constitute parts of a common scheme or plan.” Fed. R. 

Crim. P. 8(a). “If the reviewing court determines that 

counts have been improperly joined, it must then apply a 

harmless error analysis, reversing the trial court if the 

misjoinder resulted in actual prejudice to the defendant.” 

United States v. McGill, 964 F.2d 222, 241 (3d Cir. 

1992).
36

Reviewing de novo, we conclude that the charges 

were properly joined for three reasons. First, the offenses 

were of a “similar character.” Fed. R. Crim. P. 8(a). Each 

involved a series of false representations about business 

entities owned or represented by Fattah. Those 

misrepresentations were calculated to either steal or 

avoid paying certain funds. Second, the charged offenses 

were interrelated “parts of a common scheme or plan.” 

Id. For example, Fattah would use false tax information 

to convince banks to offer him loans. Similarly, both the 

fraud on the PSD and the bank fraud had the effect of 

transferring ill-gotten gains to 259 Strategies, which 

Fattah used as his personal bank account. Thus, the 

different offenses represent different components of a 

single “enrichment scheme,” and “[j]oinder under this 

rationale is acceptable.” McGill, 964 F.2d at 241. And 

third, this circuit does not have a per se prohibition on 

joining tax and non-tax charges. See id. (“Joinder of tax 

and non-tax claims is not unusual.”).

Nor was Fattah prejudiced. Fattah has not 

explained how the joinder of these counts impaired the 

fairness of his trial, nor has he argued that the jury would 

be unable to “compartmentalize the evidence.” United 

States v. Walker, 657 F.3d 160, 170 (3d Cir. 2011)

(citation omitted). The District Court instructed the jury 

that “[e]ach count and the evidence pertaining to it must 

be considered separately,” Supp. App. 254, and “juries 

are presumed to follow their instructions,” Richardson v. 

Marsh, 481 U.S. 200, 211 (1987).
37

We therefore conclude that the joinder of counts 

was not improper.

D

Finally, Fattah argues that the search warrants 

executed at his home and office were overly broad. 

Specifically, he asserts that the search warrants were not 

particularized because they permitted the Government to 

seize business records spanning time periods not covered 

by the indictment. Reviewing de novo, we reject this 

argument.

Under the Fourth Amendment, “a warrant may not 

be issued unless . . . the scope of the authorized search is 

set out with particularity.” Kentucky v. King, 563 U.S. 

452, 459 (2011). But the particularity requirement “must 

be applied with a practical margin of flexibility.” United 

States v. Sawyer, 799 F.2d 1494, 1508 (11th Cir. 1986). 

“This flexibility is especially appropriate in cases 

involving complex schemes spanning many years that 

can be uncovered only by exacting scrutiny of intricate 

financial records.” United States v. Christine, 687 F.2d 

749, 760 (3d Cir. 1982).

In this case, the warrant authorized the seizure of a 

number of document types, including “[a]ll financial 

records,” [a]ll checks paid to employees for wages,”

“[a]ll tax records,” and other similar documents. Supp. 

App. 74–75. That level of particularity is consistent with

what we approved in Christine: “all folders . . . all checks 

. . . all general ledgers (and) all correspondence . . . .”
38

687 F.2d at 753 (alterations in original). “By directing the 

searching officers to seize all of these items, the 

magistrate, rather than the officer, determined what was 

to be seized.” Id.

Thus, based on the complex nature of the crime 

charged and appropriate direction provided by the 

Magistrate Judge, we conclude that the warrants satisfied 

the particularity requirement.

IV

For the foregoing reasons, we will affirm the 

judgment of the District Court.