FBI Report Says Vince's Spy May Have Worked for Free
Courtroom Buzz
Beasley News Service
November 04, 2008
Did the private investigator who spied on Vince Fumo’s former girlfriend and ex-wife, as well as the senator’s political enemies, perform those tasks as freebies?
That’s what two FBI agents wrote in a 2006 report, after interviewing the private investigator, Frank D. Wallace. The FBI agents reported that the private investigator had said he did not bill the state senate whenever he performed personal and political surveillance on behalf of Fumo. The implication was that Wallace was doing favors for Fumo, to stay on the senator’s good side, and keep a lucrative contract with the state senate.
Fumo’s defense lawyers pounced on the FBI report in federal court today, in an attempt to show the jury that Vince may have been a louse as far as the domestic spying was concerned, but at least the taxpayers didn’t pay for it. But on cross-examination, when defense attorney Dennis Cogan handed the FBI report to Wallace, the private investigator insisted the FBI agents got it wrong.
"It’s a misinterpretation of what I said," Wallace told the jury. "It’s not my report. I never saw it before, and I didn’t sign it."
The freebie story also contradicted what Wallace had previously said on the witness stand. On Monday, Wallace told the jury how he was paid $235,000 over six years under a contract with the state Senate, and that the vast majority of the work was for personal and political investigations done at Fumo’s request. Wallace also previously told the jury that as far as he was concerned, all the work he was asked to do fell under the state contract, whether it was personal, or political, or actual Senate business.
Wallace also refused to be pinned down by Cogan on how many hours of the investigatory work he performed for the state senator was for state senate business, and how many hours were for personal and political investigations on behalf of the senator.
"I can’t say," he told Cogan. "I was not required to keep track of my time."
When Cogan kept trying to quantify the work done, Wallace replied, "Mr. Cogan, you’re a good lawyer and you know I’m not gonna adopt your numbers."
Fumo, a politican titan in Pennsylvania for three decades as a state senator, has been accused in a 139-count federal indictment of using state employees and contractors such as Wallace as servants to cater to his personal and political needs, allowing Fumo to lead a lavish lifestyle and bilk the taxpayers out of $3.5 million. The former state senator has pleaded not guilty to federal charges of fraud, conspiracy to obstruct justice and filing false tax returns.
The defense lawyers also questioned Wallace about a $5,000 check he had received in 2004 from a Fumo for Senate committee, after it became known that the feds were investigating Fumo. Wallace told the jury he viewed the check as "an attempt to cover up" the political surveillance that he had previously done for Fumo.
Wallace said that the intention behind the check was to show that state funds had never been used to pay for political surveillance done at the behest of the senator, but the private investigator insisted he did much more than $5,000 worth of political spying for Fumo.
When Cogan attempted to portray Wallace as a guy who accepted a grant of immunity because he was worried about being nailed for breaking the law, Wallace replied he didn’t think he did anything wrong.
"They (federal officials) never accused me of anything," Wallace told Cogan. He did say "I had some misgivings about whether it was proper to do personal and political" surveillance, but he added that "I thought Senator Fumo’s an attorney. Senator Fumo’s a member of Mensa. Senator Fumo’s been a legislator in Harrisburg for 30 years. I thought he knew what he was doing."
Wallace also asked Cogan if he knew that in his opening statement to the jury, Cogan said that the feds threatened to indict the private investigator for perjury if he didn’t recant the freebie story about not billing the state senate for the political surveillance done on behalf of Fumo. Wallace replied that he didn’t know what Cogan told the jury. He also denied being threatened.
Legal commentary by Maxwell S. Kennerly:
While you were making up your mind or worrying about the election, the United States Attorneys in Senator Fumo's public corruption trial were building a house.
To many reporters, the first week of the Fumo trial appeared the most interesting, as the prosecution called Christopher Marrone, the former staffer and current estranged son-in-law of Fumo. Moreover, he was reportedly the most important source in the entire investigation, retaining years worth of e-mails, which he voluntarily provided to the FBI and the US Attorneys' office. As such, he has a salacious story that was not only the genesis of the whole trial but is also directly relevant to many of the charged crimes.
The US attorneys decision to call him first, however, raised two big questions:
Why pad your already months-long, 139-count case with testimony that, though embarrassing, may not have been criminal even if proven true?
and
Why begin your case with a clearly unobjective witness with an easily-proven bias against the defendant?
Fact is, of all the charges in Fumo's indictment, the charges supported by Marrone's testimony are the weakest, and Marrone himself may be the least credible witness (or at least the witness most open to attacks on credibility) to testify in the entire trial. So why start with him?
The answer comes down to a timeless debate in the annals of trial advocacy, going back to ancient Athens and before. Most every advocate believes you should end strong, whether you are trying a case, giving a speech, or hanging up the phone ("have a nice day!").
But how should you start? Do you start with a bang, putting on some of your best evidence to make a good first impression and quickly align the jurors with your theory of the case? Or do move slowly, putting on weaker evidence to lay a foundation upon which you can enhance the impact of the stronger evidence?
The above are but two of the innumerable concerns that go into a trial lawyer's decision to set the order in which evidence will be presented, to decide the level of detail for a given part of the case and to assess whether certain claims or evidence should be presented to the jury at all. There is no right answer. On the one hand, many trial lawyers believe that juries in the era of television and movies have come to expect a lot of drama at trial and will be disappointed if you do not deliver it early on, while on the other hand you never want to reveal a smoking gun if the jury does not have enough context to understand its full meaning and importance.
Here, it is not in initially clear why the prosecutors would threaten the credibility of their entire case by spending a week on potentially legal conduct supported by a biased witness. Indeed, one experienced white collar criminal defense attorney who has been following the case told me that, in his opinion, the US attorneys should not have even raised most of the Senate staff misuse allegations at all. In his analysis, there were simply too many risks, such as opening Christopher Marrone to extensive attacks on his credibility (attacks which both defense lawyers were happy to launch), or ending up making the trial about whether it was criminal at all to use staffers this way given Fumo's 24-hour workaholic habits.
Wrong? Sure. Criminal? That requires a different mindset from merely "wrong." Worse, it can distract from other issues in the case. One wonders if the testimony of Frank Wallace, the Senate-paid investigator who allegedly spent most of his time doing personal and political dirty work for Fumo, had the same impact given how it immediately followed Marrone's cross-examination.
That said, the white collar criminal defense attorney continued, it appeared the US attorneys intended "to build a house brick, by brick, by brick, and when it's done there will be no mistaking what it looks like."
I agree. I believe the US Attorneys realized that, despite the weight of the evidence here on the whole, there were few smoking guns -- no explicit bribes, no fraud on innocent parties, and no clear embezzlement -- so they eschewed dramatic effect, instead attempting to prove that Fumo lived in a house of corruption. That is, the work on his house may not have been paid for by taxpayers, but the oversight was. He may have been working hard 24 hours a day to promote the Citizens Alliance for Better Neighborhoods, but he did so at an office they renovated at their expense. All of which, when put together, enhances the impact of the worst evidence by creating a contrast with the ordinary corruption the US Attorneys allege surrounded Fumo day and night.
Viewed that way, we can see that perhaps the prosecutors called Christopher Marrone not to prove his time was abused on personal errands, but to shed light on the ordinary corruption in the Fumo's day-to-daily activities, which they will later contrast to more explicit corruption.
