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.
February 17, 2021 Top Story
Wiretapped Defense Lawyer Convicted of Witness Bribery
Appellate court upholds liberal use of intercepted attorney statements
By Derek Wallen
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.
At Scarpa’s witness-bribery trial in the U.S. District Court for the Eastern District of New York, Scarpa moved to suppress the intercepts on grounds that the crime of which he was ultimately charged was not set forth in the original warrant, which focused on the criminal activities of Gallman—not Scarpa himself. Also, the prosecution relied, in part, on calls and text messages in which Scarpa allegedly sought to intimidate a witness other than Cherry, and Scarpa contended that the district court should exclude such “prior bad acts” evidence under Federal Rule of Evidence 404(b). A jury convicted Scarpa, who received a 30-month prison sentence.
Evidentiary Wins for the Prosecution
On appeal, the U.S. Court of Appeals for the Second Circuit affirmed Scarpa’s conviction. In response to Scarpa’s contention that certain wiretap evidence was outside the scope of the original warrant, the court of appeals held that when a wiretap “incidentally” discovers criminal activity not described in the warrant, the prosecution can rely on those communications, provided that a subsequent application to a judge demonstrates the good faith of the original application. As to the “prior bad acts” evidence that Scarpa challenged, the appellate court explained that while under Rule 404(b), such evidence cannot serve as proof of criminal propensity, it can be used for other purposes. Because Scarpa’s attempts to influence another witness were “substantially similar” to his efforts to bribe Cherry, those communications were admissible under this “inclusionary approach” to prove intent and complete “the story of the crimes” for the jury.
“Akin to the Plain View Doctrine”
The court’s admission of incidentally obtained evidence “is akin to the plain view doctrine,” observes Darryl A. Goldberg, Chicago, IL, chair of the Trial Evidence subcommittee of the Litigation Section Criminal Litigation Committee. Under this doctrine, if officers have a right to be in a particular place and see incriminating evidence, “law enforcement has a right to seize it,” says Goldberg, but “on the other hand, if you can show ulterior motives or bad faith in the application for the wiretap, then policy would support exclusion of the evidence.”
As to the “prior bad acts” evidence, notes Goldberg, “I am not surprised that the court admitted the challenged evidence under the inclusionary rule.” This is because “for all practical purposes, evidence under Rule 404(b) is routinely admitted, despite the prohibition against propensity evidence and the purported balancing test that should exclude evidence that is likely more prejudicial than probative,” he says. “From a defense perspective,” says Goldberg, “lawyers find that the rule is often abused.”
Attorney-Client Privilege at Stake
For other ABA leaders, the most interesting aspect of the case is left unaddressed in the Second Circuit’s order. “It is highly unusual to have defense attorneys being wiretapped in connection with active criminal cases or active representation of parties,” states Warrington S. Parker, San Francisco, CA, cochair of the Section’s Criminal Litigation Committee. “In order to do an investigation of a defense lawyer, you have to have an enormous amount of evidence because you’re invading the attorney-client privilege,” he says. “We have any number of reports where prosecutors run off the rails because they are either listening in on prison calls with clients or doing other things that would be considered to invade the attorney-client privilege,” says Parker. “That does not seem to have been litigated at all in the case.”
The threat to the attorney-client privilege from wiretaps requires unique precautions. According to Parker, the government would typically have two teams responsible for collecting and listening to the intercepts, one “clean” and one “dirty.” The dirty team would be “listening to everything and excising out privileged information” before the intercepts reach the clean team. “Clearly the government did its job correctly,” Parker notes, “because there’s not a peep in any of these papers about the attorney-client privilege.”
Derek Wallen is a contributing editor for Litigation News.
Hashtags: #witnessbribery, #wiretaps, #secondcircuit
Resources
- Howard J. Kaplan, Joseph A. Matteo, and Richard Sillett, “The History and Law of Wiretapping,” ABA Section of Litigation 2012 Section Annual Conference (Apr. 18-20, 2012).
- Sheena Foye and James R. Wyrsch, “Protecting Communications With Incarcerated Clients,” Criminal Litig. (Dec. 3, 2019).
- Michael L. Huggins, “Seventh Circuit Affirms Dismissal as Sanction for Witness Tampering and Highlights Counsel’s Duty of Candor,” Pretrial Prac. & Disc. (Mar. 30, 2017).
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