In a federal prosecution, wiretap evidence is admissible to prove guilt even if law enforcement obtained it from defense counsel “incidentally” while investigating a different crime. In United States v. Brettschneider, a federal appeals court upheld the conviction of a lawyer for witness bribery based on such evidence, rejecting the defendant’s contentions that his wiretapped statements fell outside the state’s warrant and were inadmissible to prove criminal propensity. According to ABA Litigation Section leaders, the case is unusual in its reliance on evidence obtained from a wiretap of defense counsel, a rare practice that can threaten the attorney-client privilege.
Bargaining for False Testimony
Attorney John Scarpa was charged with use of interstate facilities in aid of racketeering based on allegations that he procured false testimony while defending Reginald Ross in a murder trial in New York state court. The government initially focused its wiretap investigation on Charles Gallman, a felon who allegedly had used his “connections in the criminal underworld” to assist defense lawyers with various cases. According to the government, the wiretap revealed that Scarpa conspired with Gallman to bribe Luis Cherry, a witness in the Ross trial, into falsely testifying to Ross’s innocence. Cherry so testified in the Ross trial, but the jury nonetheless convicted Ross of murder.
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