Wiretapped Defense Lawyer Convicted of Witness Bribery

• Pages: 8-8
• Date: 01 October 2022
• Author: Derek Wallen
• Subject Matter: Civil Law

In a federal prosecution, wiretap evi-

dence is admissible to prove guilt

even if law enforcement obtained it

from defense counsel “incidentally”

while investigating a dierent crime.

In United States v. Brettschneider, a

federal appeals court upheld the con-

viction 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 inadmis-

sible to prove criminal propensity.

According to ABA Litigation Section

leaders, the case is unusual in its reli-

ance on evidence obtained from a

wiretap of defense counsel, a rare

practice that can threaten the attor-

ney-client privilege.

Attorney John Sc arpa was charged

with use of interstate fa cilities in aid

of racketeering ba sed on allegations

that he procured f alse testimony while

defending Reg inald Ross in a mur-

der trial in New York state cou rt. The

government initia lly focused its wire-

tap investigation on C harles Gallman.

According to the governm ent, the

wiretap revealed that S carpa con-

spired with Gallm an to bribe Luis

Cherry, a witness in t he Ross trial, into

falsely testif ying to Ross’s innocence.

Cherry so testi f‌ied in the Ross trial,

but the jury no netheless 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 wiretap intercepts

on grounds that the original warrant

focused on the criminal activities of

Gallman—not Scarpa himself. Also, the

prosecution relied, in part, on calls and

text messages in which Scarpa alleg-

edly sought to intimidate a witness

other than Cherry, and Scarpa con-

tended 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.

Wiretapped Defense Lawyer

Convicted of Witness Bribery

On appeal, the U.S. Court of

Appeals for the Second Circuit

armed Scarpa’s conviction. In

response to Scarpa’s contention that

certain wiretap evidence was out-

side 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, 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 eorts to bribe Cherry, those com-

munications were admissible under

this “inclusionary approach” to prove

intent and complete “the story of the

crimes” for the jury.

The court’s admission of inciden-

tally obtained evidence “is akin to the

plain view doctrine,” observes Darryl

A. Goldberg, Chicago, IL, chair of the

Trial Subcommittee of the Litigation

Section’s White Collar & Criminal

Litigation Committee. Under this doc-

trine, if ocers have a right to be in

a particular place and see incriminat-

ing evidence, “law enforcement has a

right to seize it,” explains 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 excluding 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 pur-

poses, evidence under Rule 404(b) is

routinely admitted, despite the pro-

hibition against propensity evidence

and the purported balancing test that

By Derek Wallen, Litigation News Contributing Editor

should exclude evidence that is likely

more prejudicial than probative,” he

says. “From a defense perspective,”

continues Goldberg, “lawyers f‌ind that

the rule is often abused.”

For other Section 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 par-

ties,” states Warrington S. Parker, San

Francisco, CA, cochair of the Section’s

White Collar & Criminal Litigation

Committee. “In order to do an inves-

tigation of a defense lawyer, you have

to have an enormous amount of evi-

dence because you’re invading the

attorney-client privilege,” he elabo-

rates. “We have any number of reports

where prosecutors run o 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,”

details 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 typi-

cally have two teams responsible for

collecting and listening to the inter-

cepts, 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 gov-

ernment did its job correctly,” Parker

concludes, “because there’s not a

peep in any of these papers about the

attorney-client privilege.

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