UNITED STATES of America v. Chaka FATTAH, Jr., Appellant
No. 16-1265
United States Court of Appeals, Third Circuit.
Argued March 7, 2017. Opinion Filed: June 2, 2017. Amended June 12, 2017
858 F.3d 801
SMITH, Chief Judge.
Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges
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
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 counts, and the particularity of the search war-
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
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 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 for-profit 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 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
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 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 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,
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.
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 pre-indictment income and thereby impaired his ability post-indictment 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.
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 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 post-indictment 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 employment5 independent of any influence from prosecutors. There was no close nexus between DVHS and the Government with regard to the 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
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).
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 [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
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 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
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 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, non-conjectural, and detailed prelim-
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 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.
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 (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) (plu-
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 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 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
Third, amicus counsel argues that the officer may have committed obstruction of justice in violation of
Fourth, amicus counsel argues that the agent may have violated FBI policy. But
Finally, we are left with the arguments that the FBI agent disclosed certain confidential information contained in Fattah‘s tax returns in violation of
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 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
[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
But Count 12 properly charged that Fattah employed false and fraudulent pretenses, representations or promises in order to obtain a loan. Supp. App. 18;
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, properly instructed, found beyond a reasonable doubt that Fattah made knowing misrepresentations.11
2. Counts 20-23 (Wire Fraud in violation of
4. Counts 1-7 (False Statements to Obtain Bank Loans in violation of
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 false statement or report.
5. Count 8 (False Statements Concerning a Loan Insured by the Small Business Administration in violation of
6. Count 11 (False Statements to Settle a Bank Loan in violation of
A false statement taken in a deposition is no less a false statement or report.
7. Count 13 (False Statements to Obtain a Bank Loan in violation of
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 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
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. 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
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
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
Reviewing de novo, we conclude that the charges were properly joined for three reasons. First, the offenses were of a similar character.
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).
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 search warrant affidavit. 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.... Christine, 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.
IV
For the foregoing reasons, we will affirm the judgment of the District Court.