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Judge grants delay in Aisenberg transcripts

Federal prosecutors had asked for more time to review the ruling and decide whether to appeal.

By GRAHAM BRINK, Times Staff Writer
© St. Petersburg Times
published February 6, 2003

TAMPA -- The grand jury transcripts in the case of Steve and Marlene Aisenberg will remain under wraps at least until mid March.

After an hourlong hearing Wednesday that included some name-calling by the lawyers, U.S. District Judge Steven Merryday granted a request from the U.S. Attorney's Office to stay his order to release the transcripts early next week.

Last week, Merryday ordered the government to pay $2.9-million toward the Aisenbergs' legal fees. The judge's order also directed the clerk of courts to release by Monday all the normally secret grand jury transcripts from the case.

Federal prosecutor Ernest "Tony" Peluso argued Wednesday that his office needed more time to study Merryday's 94-page ruling and make a decision on whether to appeal. Merryday agreed to give them more time, delaying the release of the transcripts until March 18.

The transcripts still might not be released at that time if the prosecutors decide to appeal to keep them from becoming public. Merryday said he would keep the transcripts sealed until the outcome of such an appeal.

Peluso said the Solicitor General's Office in Washington would make the decision on whether to appeal any aspect of Merryday's order. He wasn't sure if an appeal was in the works.

"I cannot read the mind of the Solicitor General," he said.

The case began in November 1997, when the Aisenbergs' 5-month-old daughter, Sabrina, went missing from the Aisenbergs' home in Valrico. She was never found.

After a long investigation, the Aisenbergs were indicted on federal charges of conspiracy and making false statements. The case crumbled after a federal magistrate judge questioned the government's evidence and the way law enforcement went about collecting it.

The Aisenbergs' lawyers filed a motion citing the Hyde Amendment, a law that protects against prosecutorial abuses by allowing defendants to collect attorneys fees from the government if the case was frivolous, vexatious or brought in bad faith. They also asked for the transcripts to be unsealed to allow the public to see what went wrong in the case.

Complete transcripts of grand jury testimony almost never become public. Prosecutors present evidence to grand jurors, who decide whether an indictment is warranted.

Aisenberg attorney Barry Cohen did not object to the stay. He told the judge, however, that he was tired of the prosecutors saying the transcripts shouldn't be released because the Aisenbergs were still subjects of an ongoing investigation. He said the prosecutors were trying to hide the truth from coming out by keeping the transcripts under wraps.

"There is no legitimate investigation going on," he said. "We believe people have a right to know the truth in this case."

Peluso told the judge that Cohen's argument was "demagoguery" and said he was "grandstanding" for the reporters in the courtroom.

-- Graham Brink can be reached at (813)226-3365 or brink@sptimes.com .

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