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The lawyer for a man about to go on trial for extortion must respond to a subpoena concerning the source of legal fees in the case, a federal judge has ruled. Southern District of New York Judge Lewis Kaplan refused the motion to quash a subpoena served by federal prosecutors on attorney Bruce A. Barket because a check cashed by the lawyer was written by one of his client’s alleged extortion victims. Salvatore Scala and co-defendant Thomas Sassano, allegedly of the Gambino crime family, were charged in U.S. v. Scala, S1 04 Crim 0070, with extortion and conspiracy to commit extortion. Scala was also charged with tax evasion. Barket said the subpoena was an effort by the government to have him removed from the case. “Three weeks before the scheduled start of trial they have tried to convert Sal Scala’s lawyer into a witness for the prosecution,” Barket said yesterday. “They will do so over my dead body.” The prosecutor who was handling the case, which involves the alleged extortion of individuals connected to the owners and operators of the VIP Club, a Manhattan strip club, left the U.S. Attorney’s Office this spring. The new prosecutors assigned to the case, Assistant U.S. Attorneys Eric Snyder and Jonathan S. Kolodner, were reviewing files in the matter when they discovered a $750 check written to “cash” by an alleged extortion victim. The check was endorsed by Barket’s law office. The prosecutors also interviewed another alleged extortion victim and learned that the amount of extortion payments he was making increased in 2001 because Scala had to pay legal fees — supposedly fees to Barket for representing Scala in an extortion case in the Eastern District. Scala was convicted in 2001 in Brooklyn federal court on one count of conspiracy to commit extortion. He was sentenced to 5 years and 3 months in prison. As the scheduled June 12 trial date for the Manhattan case neared, the prosecutors served Barket with a subpoena for records on the “source, amounts, and forms in which payment was made for legal, investigative and other fees for services provided” in connection with the Eastern District case. Kaplan denied the motion to quash under Federal Rule of Criminal Procedure 17(c) last Thursday and then followed with a written opinion. Barket said enforcement of the subpoena would make him a witness and lead to his disqualification as counsel for Scala. He also claimed the subpoena was served too close to trial, that it was unduly burdensome and oppressive, and that the government failed to meet the test for issuing a subpoena to a third-party witness outlined by the U.S. Supreme Court in U.S. v. Nixon, 418 U.S. 683 (1974). Nixon requires a party seeking to require production before trial to show that documents are evidentiary and relevant, “that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence,” that the “party cannot properly prepare for trial without such production and inspection in advance of trial” and that “the failure to obtain such inspection may tend to unreasonably delay the trial.” Nixon also requires that the application be made in good faith and is not intended to be party of a general “fishing expedition.” Kaplan held a hearing on May 19. One week later, Barket submitted a memorandum in which he relied “on the Fifth Amendment for his refusal to respond to the subpoena.” The government argued that this assertion should disqualify Barket because it raised an actual, non-waivable conflict of interest between him and Scala. Barket went on to invoke his privilege against self-incrimination at a hearing before the judge on June 1. Kaplan said the information sought by the government was relevant to the case against Scala. He also said it was “far from clear that the government properly may be faulted for first realizing the need for this evidence so recently.” He said, “While the government had the check months ago, it was in a conference room full of documents, including checks for all sorts of mundane expenses. The possible relevance of this particular check became apparent only when a new Assistant U.S. Attorney happened to notice that it was endorsed by Mr. Barket and that it bore the legend ‘legal fees.’” And that only became significant when the prosecutors interviewed the two victims, he said. Barket also argued that the subpoena would violate Scala’s Sixth Amendment right to counsel and the right to counsel of his choice. But Kaplan said that “whatever validity there originally may have been in the argument that the enforcement of the subpoena improperly would deprive Scala of counsel of his choice by making his lawyer a witness became academic, or at least probably so, as soon as Mr. Barket threatened to invoke the Fifth Amendment because that threat manifested at least a potential conflict of interest between Mr. Barket and Scala. “That conflict may have come to light due to the subpoena controversy, but it exists independent of it.” The judge also said it was “not at all clear that enforcement of the subpoena and any consequent disqualification of Mr. Barket as a witness would contravene Scala’s Sixth Amendment right.” Daniel Arshack of Arshack & Hajek, who represented Barket, said he plans to appeal the decision. “There is a significant body of law that demands that the judge quash this subpoena,” Arshack said. Arshack said Monday he planned to submit papers to the judge arguing why Barket has the right to assert the Fifth Amendment in resisting the production of the documents.

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