By JEFF TESTERMAN
© St. Petersburg Times, published September 30, 2000
TAMPA -- A federal judge said Friday he wants a special hearing to determine whether the government misrepresented the facts or acted recklessly in its handling of the electronic surveillance leading to the indictment of Steve and Marlene Aisenberg.
At issue are 200 taped conversations of the Aisenbergs made secretly at their Brandon home by Hillsborough sheriff's investigators who thought the couple were less than truthful about the disappearance of their 5-month-old daughter, Sabrina.
In a 116-page motion, attorneys for the Aisenbergs have asked that the tapes be suppressed, arguing that misrepresentations and omissions of facts were used to apply for permission to place the devices necessary to obtain the tapes.
Without the tapes, defense attorneys say, the case against the Aisenbergs will collapse.
In a three-hour hearing Friday, defense attorney Todd Foster said the applications for bugging in the Aisenberg case met neither the law nor the intent of Congress regarding electronic surveillance.
"What we have here is 81 days of oral intercepts in the marital bedroom of this couple," said Foster. "I haven't seen anything like it. The invasiveness here is just what Congress was concerned about when it passed these laws."
Sabrina was reported missing by Marlene Aisenberg on Nov. 24, 1997 and hasn't been seen since.
Suspicious of conflicting stories by the Aisenbergs, investigators sought authorization from Chief Circuit Judge Dennis Alvarez on Dec. 12, 1997, and began electronic eavesdropping. Later, two more such applications were made.
On Sept. 9, 1999, a federal grand jury indicted the Aisenbergs on charges of conspiracy and making false statements to investigators. The couple have denied any involvement in their daughter's disappearance.
The quality of the incriminating tapes was challenged in a hearing Thursday before U.S. District Judge Steven Merryday. Defense attorney Barry Cohen said the tapes mostly are unintelligible and should be thrown out, along with the indictments of his clients.
Merryday said he wanted to schedule a hearing to determine the audibility of the tapes. The judge also ordered a sealed transcript of the proceedings of the grand jury that indicted the Aisenbergs.
On Friday, Foster attacked the government's transcription and interpretation of the tapes, saying "inflammatory statements were spun completely from air."
In a section of one of the later applications for surveillance, Foster pointed out, investigators described surveillance in which the Aisenbergs talked of their baby being dead. But a log made by the deputy listening said most of the conversation "was distorted by noise."
In another section of a later eavesdropping application, Marlene Aisenberg is described as mentioning a kidnapping and saying to Steve, "I hate what you did to our little daughter." But the listening log says nothing of this conversation, and an expert hired by the defense said that portion of this particular tape is unintelligible.
Foster even said that a family videotape of Sabrina had been manipulated by the government to suggest abuse at the hands of her parents. One frame of the videotape shows a shadow on Sabrina's face that investigators said was evidence of bruising, but other frames do not show the shadow, and a family babysitter said she knew nothing of bruising, Foster said.
Assistant U.S. Attorney Stephen Kunz denied that any exculpatory material was withheld in the eavesdropping applications, and said the probable cause for later surveillance was derived not from an isolated conversation or two but from "the larger context" of the findings.