By SUSAN THURSTON
© St. Petersburg Times, published March 18, 2001
TAMPA -- A U.S. appeals court has accused a federal prosecutor in Tampa of misconduct and has overturned the 1996 convictions he won against a seafood company and its top officials.
The ruling Friday came about a month after a federal judge issued a report blasting federal prosecutors and police involved in the botched prosecution of Steven and Marlene Aisenberg, who were accused of lying to investigators about the 1997 disappearance of their 5-month-old daughter, Sabrina.
The 11th U.S. Circuit Court of Appeals said Assistant U.S. Attorney Michael Rubinstein misled and biased a grand jury and rushed members to return an indictment against Sigma International Inc., a seafood importer based in St. Petersburg. The ruling on the indictment resulted in the overturned convictions of two Sigma officials who had been fined and sentenced to prison but were free pending their appeals.
"The significant pressure put on the . . . grand jury to rubber stamp the indictment . . . was improper," the three-judge panel said.
The decision was another blow to the U.S. Attorney's Office in Tampa, which has come under increasing scrutiny for the conduct of its prosecutors.
"It's exceptionally rare . . . in the federal system for an appellate court to dismiss an indictment entirely because of prosecutorial misconduct in the grand jury," said John Fitzgibbons, a Tampa lawyer who defended Sigma Vice President William Andrew Walton.
Fitzgibbons, a former federal prosecutor, said the ruling should serve as a wake-up call that courts will not tolerate such practices. His client was "relieved, happy and shell-shocked" upon hearing the news of the reversal.
Walton and plant manager Charles Sternisha, both of St. Petersburg, were convicted in 1996 of selling thousands of pounds of rancid shrimp as fresh. The company soaked the shrimp in chlorine and lemon juice to hide the smell, investigators said, and sold it to distributors.
Prosecutors said the shrimp ended up in grocery stores and restaurants, but it is unknown whether anyone got sick from it.
A judge fined the company more than $1-million. If it prevails, the company will get a refund.
It was unknown Saturday whether the U.S. Attorney's Office will appeal the latest ruling. Neither Rubinstein nor the local spokesman for the U.S. Attorney's Office was available for comment.
The ruling was the appeals court's second involving Sigma International. In late 1999, the court affirmed the convictions but said Rubinstein's conduct before the grand jury was "unacceptable." Rubinstein had commented on other crimes he thought the defendants had committed and opined that one defendant should be indicted because he had lied. The appeals court also found that Rubinstein rushed jurors' vote. The same conduct was cited in the latest ruling.
Prosecutors and defense lawyers asked the appeals court to reconsider the 1999 ruling. That review resulted in the latest ruling.
Charles Wolfram, a legal ethics professor at Cornell University who is a leading expert in his field, said this type of dismissal is rare.
"The federal court of appeals is just sick to death of prosecutorial misconduct and not being able to do anything about it," Wolfram said. "This is a shot across the prosecution's bow."
As is customary for allegations of prosecutorial misconduct, the matter has been turned over to the U.S. Department of Justice's Office of Professional Responsibility for review, department spokeswoman Chris Watney said.
In the past year, federal prosecutors have seen other major criminal cases crumble.
Prosecutors dropped an indictment of former Tampa City Council member Ronnie Mason and have faced scorn from a federal magistrate for bringing a case against a supporter of former City Council member Perry Harvey Jr.
Judges also criticized a federal prosecutor for inappropriately trying to influence a grand jury and concluded that another prosecutor committed intentional misconduct during a trial.
The office faces financial hits if the Aisenbergs, who were accused of lying to investigators in the 1997 disappearance of their 5-month-old daughter, ask a judge to order the government to pay for the cost of their defense.
- Information from the Associated Press and Times files was used in this report.