A U.S. district judge asks a magistrate to reconsider a motion to dismiss all charges.
By GRAHAM BRINK
© St. Petersburg Times, published February 17, 2001
TAMPA -- The crumbling case against Steven and Marlene Aisenberg took another blow Friday.
Two days after a magistrate judge issued a scathing report denouncing the government's evidence against the Aisenbergs, a U.S. district judge asked him to take another look at the case. This time, the judge said, he wanted the magistrate to address whether the case should be tossed out altogether.
In a report released Wednesday, U.S. Magistrate Judge Mark Pizzo said the lead detectives lied and acted with reckless disregard in obtaining permission to bug the Aisenbergs' Valrico home after their 5-month-old daughter, Sabrina, disappeared in 1997.
In light of the revelations, U.S. District Judge Steven Merryday issued an order Friday asking Pizzo to reconsider a defense motion to dismiss all the charges, which Pizzo previously denied.
It's rare that a district judge asks the magistrate to consider a motion he already denied, said former federal prosecutor Steven Crawford.
"I see this as another victory for the Aisenbergs," Crawford said. "It's a very strong hint that the case is going down the tubes."
When Sabrina disappeared on Nov. 24, 1997, the Aisenbergs said someone must have crept into their eastern Hillsborough home at night and abducted the infant. Investigators suspected the Aisenbergs had played a role and got permission to bug the home. Over 79 days, the investigators taped more than 2,600 conversations. No trace of Sabrina has been found.
Federal prosecutors used the secretly taped conversations to persuade a grand jury to indict the Aisenbergs in 1999 on charges of conspiracy and lying about their child's disappearance. Those charges, however, did not appear on the warrant to bug the home. It contained four other crimes including murder and child neglect.
Given the invasive nature of a wire tap or bug, the rules for using them are strict. The law requires that prosecutors ask the judge who signed the warrant for permission to use the taped conversations to persuade a grand jury to indict on the new charges.
The rule is a safeguard against authorities claiming they are after information about one crime when they know that they intend to charge the suspect with a different one. Bugs and wire taps can be used to investigate only a handful of serious crimes like murder.
The federal prosecutors in the Aisenberg case failed to ask the judge for permission. In April, Pizzo conceded they should have made the request but said the failure to do so was not a big enough error to warrant dismissing the charges.
Merryday wants Pizzo to consider that decision again, but he did not specifically state what it is in the 63-page report that prompted him to ask.
In his report, Pizzo recommended that all the taped conversations be suppressed. He pulled few punches, calling parts of the investigative work "strikingly poor" and the detectives' interpretation of the largely inaudible recorded conversations "pure fiction." Pizzo said that the detectives purposefully misled the judge who gave permission for the bugs and that the prosecutors used that information to obtain the indictment.
If the warrants were obtained illegally, then Merryday might want Pizzo to explore whether the prosecutors' error in failing to ask permission to pursue different charges was more than a technicality, defense attorneys say.
If the judge who signed the warrants had known he was misled or that the tapes were largely inaudible, he certainly never would have agreed, if asked, to allow the prosecutors to use the tapes to seek a grand jury indictment on the different charges. If the indictment was based on illegally obtained evidence, then the case crumbles.
And if the order indeed hints that Merryday is leaning toward dismissing the charges, the prosecutors' error becomes another piece of ammunition to back up a dismissal, defense attorneys say. Also, the more reasons Merryday can give for tossing the charges, the less likely his decision would be successfully appealed.
Magistrate judges like Pizzo are often assigned the task of hearing motions filed in a felony case. The magistrate makes independent recommendations to the presiding district judge, who makes the final rulings.
Merryday wrote in his order that Pizzo can schedule evidentiary hearings as he deems necessary to prepare any further report and recommendation. Merryday did not give Pizzo any time limit.
"Whatever the reason for the order," said Tampa defense attorney Eddie Suarez, "it undeniably signals that the court has concerns about the case."
Steve Cole, a spokesman for the U.S. Attorney's Office, said it would not be appropriate to make a comment on any aspect of the Aisenberg case.
- Contact Graham Brink at (813) 226-3365 or firstname.lastname@example.org.
Missing Sabrina: The Aisenberg Odyssey