PITTSBURGH — An evidence suppression hearing for Pennsylvania Cyber Charter School founder Nick Trombetta will stretch into November after another day of arguments Monday was more notable for who did not testify than for who did.
Beaver County solicitor Joe Askar, who also represents the Rochester-based National Network of Digital Schools, invoked his Fifth Amendment rights against self-incrimination and refused to testify. Askar was subpoenaed by Trombettas defense team in their effort to get recorded conversations with attorneys, including him, tossed out by U.S. District Court Chief Judge Joy Flowers Conti.
Trombetta — who faces 11 federal charges — is claiming that the FBI violated his attorney-client privilege by recording discussions with Askar, former PA Cyber attorney Timothy Barry, and Ralph Monico and Leo Daly, attorneys who also represented NNDS. A Sept. 30 hearing was continued until Monday.
Mr. Askar has neither committed nor been charged with any crime. Nor will he be. As the U.S. Supreme Court has said, the privilege is available not only to protect the guilty, but also the innocent: We have emphasized that one of the Fifth Amendments basic functions is to protect innocent men, who otherwise might be ensnared by ambiguous circumstances, Bruce Teitelbaum, Askars attorney, said in a statement.
The ambiguities inherent in this complex matter and the possibility of misunderstanding compelled me, out of caution, to advise Mr. Askar to invoke his privilege, Teitelbaum said.
Barry was called to the stand by defense attorney Adam Hoffinger later in the day, but was excused after a lengthy off-the-record sidebar involving his attorney, Trombettas lawyers and prosecutors. Hoffinger said Barry would be recalled when the hearing continues next month.
Trombetta attorney Robert Salerno quizzed FBI agent Samantha Bell, the lead investigator, on synopses of calls monitored by agents, instructions to agents on recording calls and minimization, the FBIs name for when agents stop listening to calls that are irrelevant or might be protected by attorney-client privilege.
After Barry was excused, FBI agent Paul Allen took the stand and was questioned by Hoffinger on a June 2012 synopsis of a recorded call on which he noted that Trombetta would be talking to his attorney.
Hoffinger wondered how agents could know when to stop recording privileged communications if they truly did not know whether Trombetta had a personal attorney. Allen said he did not exactly remember, but testified that he might have simply written the note to be cautious.
Im not sure why I used the personal pronoun his, Allen said. I didnt mean anything by it.
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Agents questioned, Askar takes the Fifth in Trombetta hearing