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    Part of Aisenberg response is sealed

    The prosecutors' response includes enhanced versions of four recorded conversations.

    By GRAHAM BRINK

    © St. Petersburg Times, published November 23, 2000


    TAMPA -- Federal prosecutors fired their latest salvo Wednesday in their battle to persuade a judge to allow a jury to hear tapes they claim include Steven and Marlene Aisenberg discussing the death of their missing 5-month-old daughter.

    The 14-page response comes the week after U.S. District Judge Steven Merryday said he found the tapes largely inaudible and of generally poor quaility and asked prosecutors how they intented to use the tapes and in what context.

    The prosecutors filed part of their response under seal, saying it included much of their theory as to what happened and confidential grand jury information. As long as the judge agrees that the information should be sealed, it will likely become public only at trial.

    The sealed response included enhanced versions of four of the taped conversations. Prosecutors wrote that the new tapes are clearer and contain the incriminating statements outlined by the investigating agents.

    At issue are the tapes made by Hillsborough sheriff's detectives investigating the disappearance of Sabrina Aisenberg from her home in Brandon on Nov. 24, 1997. The Aisenbergs said someone must have crept into their home at night and stolen the child. Investigators obtained a court order to bug the home after they turned up no evidence of an intruder. No trace of the child has been found.

    In indicting the Aisenbergs last year on charges of conspiracy and making false statements, prosecutors released partial transcripts they had made from the tapes. The tapes are the main evidence against the Aisenbergs that prosecutors have revealed so far.

    Merryday, however, said he could not hear some of the statements or, if he could, there was no context for which they were made. Merryday said he would not let jurors simply speculate as to what was said. They must be able to reasonably determine the context, he said.

    In the response, prosecutors reiterated that case law states that any ambiguity in a recorded conversation is an issue for the jury to resolve, not the judge. The judge does not need to be able to determine the definitive meaning of the conversations for them to be admitted as evidence, they wrote.

    "The (judge) should not invade the province of the jury by excluding that tape from evidence simply because the defendants proffer an innocent explanation for the statement," they stated in the response. The defense attorneys would be free to rebut the allegations, or provide their own explantions for the meaning of the taped statements, they wrote.

    The Aisenbergs' attorneys, who did not want to comment, could respond to the prosecution's response or simply wait for Merryday's reaction.

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

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