Prosecutors want McGrath barred from using recorded phone calls at trial

Prosecutors in the Roy McGrath fraud trial are asking a federal judge to block the use of recordings of phone conversations allegedly made by Gov. Larry Hogan’s former chief of staff, including recorded calls with Hogan.

McGrath, who is facing more than a half-dozen federal charges and additional state charges, is scheduled to go to trial at the end of the month. Federal prosecutors, in a motion made in U.S. District Court, asked that recorded phone calls that might be used in McGrath’s defense be excluded because they were obtained in violation of Maryland wiretap law, aren’t germane to the federal charges and would serve only to confuse jurors.

“This is a trial about defendant’s actions while at (Maryland Environmental Service) and after joining the governor’s office as the governor’s chief of staff and not about the Coronavirus Response Team,” prosecutors wrote in their motion. “Allowing the jury to hear these conversations or confronting witnesses with snippets of those conversations will confuse the issues and mislead the jury. Because the probative value of the recorded conversations which are unrelated to the charged conduct is substantially outweighed by the need to maintain focus on the charges in the instant case.”

McGrath faces an eight-count federal indictment. Charges include wire fraud, including securing a $233,648 severance payment equal to one year of salary as the head of MES. He also faces fraud and embezzlement charges connected to roughly $170,000 in expenses and failure to take vacation time while vacationing in Florida and on a cruise to Spain, France and Italy. 

A final charge involves allegations that he falsified a memo that purports to show Hogan was informed of  McGrath’s severance arrangement and signed off on the deal.

McGrath faces related state charges, including nine counts violating the Maryland Wiretap Act. Federal prosecutors said the recordings include “high level state government officials including cabinet secretaries, the Governor’s former chief of staff, his former chief legislative officer, his former communications director, various senior advisors and health advisors as well as the governor himself.”

Maryland law requires two-party consent when recording phone calls and other private conversations. Prosecutors acknowledge that federal law allows for one-party consent but note that McGrath is not charged with violating federal laws for the recordings.

“The recorded telephone calls are unrelated to the events charged in the Superseding Indictment, including the Defendant’s 2019 vacations for which he did not take annual leave, the Defendant’s use of MES funds to make contributions to Academy Arts Museum, the Defendant’s $233,648 severance payment from MES, and the Defendant’s use of MES funds to pay for a course at the Harvard Kennedy School which occurred after he no longer worked at MES,” prosecutors argue. “Because the recordings are not ‘of consequence in determining the action,’ evidence contained in the recordings made by the Defendant while head of MES are irrelevant and therefore inadmissible.”

It is unclear how McGrath’s defense might use the recordings in federal court.

McGrath is alleged to have recorded the bulk of the calls between March 11, 2020 and May 22, 2020.

While they are asking a judge to bar McGrath’s attorneys from using recorded calls in the trial, prosecutors are planning to use one recorded phone call to advance their case.

In their motion, prosecutors said they plan to introduce one of the nine calls recorded on Aug. 17, 2020, between McGrath and senior Hogan officials. That call contains statements made by McGrath regarding news stories that broke two days earlier about his severance payments and a scheduled legislative hearing.

Other calls, which prosecutors seek to have ruled out of bounds, “do not pertain to the underlying conduct charged in the Indictment,” they said.

McGrath is represented by attorney Joseph Murtha, who did not respond to a request for comment. In a separate filing with the court, McGrath’s attorney asked a judge to extend a filing deadline for responses to Tuesday. Murtha said the delay was needed because his client, who lives in Naples, Florida, was displaced last week by Hurricane Ian and unable to communicate with his lawyers.

The motion to block the majority of the phone calls comes at the same time Murtha, is asking the trial judge to block prosecutors from telling jurors about the state charges or an investigation and 82-page report by the Joint Committee on Fair Practices and State Personnel Oversight.

In a separate filing, prosecutors opposed Murtha’s motion because it would preclude evidence collected when state investigators served search warrants on McGrath two years ago in which computers, cellphones and other records were seized. Murtha had argued that telling the jurors of the state charges or legislative investigation and report would unfairly prejudice the jury.

Excluding the investigation by the legislative panel would effectively bar prosecutors from using statements and other disclosures made by McGrath, who testified before the committee.

“The legislative hearings and the state’s investigation are essential evidence in the timeline of charges alleged in the indictment,” prosecutors wrote. “Some of the witnesses the government intends to call at trial testified under oath at the joint committee’s hearings. Although the testimony is hearsay unless the declarant testifies in the instant trial, the Government plans to call witnesses from the MES Board of Directors to testify regarding representations made to them by the defendant.”

Prosecutors wrote that cellphones seized from McGrath also show a fictitious memo purportedly indicating Hogan’s approval of McGrath’s severance package. Prosecutors say the memo was created by McGrath and scanned into McGrath’s cellphone less than two hours before witnesses were set to appear before the committee to testify in the investigation of his severance and other payments.