U.S. v. Aisenberg, 8:99-CR-324-T23MAP.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Citation247 F.Supp.2d 1272
Docket NumberNo. 8:99-CR-324-T23MAP.,8:99-CR-324-T23MAP.
PartiesUNITED STATES of America v. Steven B. AISENBERG and Marlene J. Aisenberg
Decision Date31 January 2003
247 F.Supp.2d 1272
Steven B. AISENBERG and Marlene J. Aisenberg
No. 8:99-CR-324-T23MAP.
United States District Court, M.D. Florida, Tampa Division.
January 31, 2003.

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Stephen Kunz, Ernest F. Peluso, Rachelle DesVaux-Bedke, John Moran, Terry Zitek, U.S. Attorney's Office, Tampa, FL, for U.S.

Barry A. Cohen, Todd Foster, Michael A. Gold, Stephen L. Romine, Harry M. Cohen, Kevin J. Darken, Cohen, Jayson & Foster, Tampa, FL, for defendants Steven and Marlene Aisenberg.


MERRYDAY, District Judge.

Steven and Marlene Aisenberg (the Aisenbergs) seek recovery of "a reasonable attorney's fee and other litigation expenses" pursuant to Section 617 of Public Law Number 105-119, 111 Stat. 2440, 2519 (1997) (the Hyde Amendment).1 For reasons conspicuous in the record of this extraordinary case, the United States of America concedes liability—apparently the only such concession by the Department of Justice since enactment of the Hyde Amendment—for a prosecution that was either "vexatious, frivolous, or in bad faith" within the meaning of the Hyde Amendment. The United States' unprecedented

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concession leaves for determination only the correct statutory measure of the "reasonable attorney's fee and other litigation expenses" available under the Hyde Amendment.2


By a telephone call to the "911" emergency service, Marlene Aisenberg reported the disappearance of her daughter Sabrina in the early morning on November 24, 1997. Law enforcement responded promptly and in the next days an intense and thorough "manhunt" occurred but failed to recover Sabrina. (The Aisenbergs insist with distinctive force that this search was mainly a search for Sabrina's dead body, rather than a search for a living child. The United States contests this interpretation. In either event, an enormous effort occurred.) Sabrina remains missing.

On December 12, 1997, eighteen days after Sabrina's disappearance and after developing suspicions directed at the Aisenbergs, the Hillsborough County Sheriffs Office applied successfully to the circuit court in Hillsborough County, Florida, for authorization to intercept oral communication, including telephonic communication, in the Aisenbergs' home. Authorities furtively placed electronic interception devices throughout the Aisenbergs' home the next day, December 13, 1997. Owing to extensions of the interception authority, for which law enforcement applied on January 9 and again on February 6, 1998, the surveillance remained active until March 2, 1998, yielding seventy-nine days of surveillance, including approximately 2,600 conversations recorded on fifty-five audio recordings (the interception protocol included minimization at two minutes and cessation of the bedroom interception between midnight and 7:00 a.m.).

On September 9, 1999, about twenty-one months after Sabrina's disappearance and about eighteen months after discontinuation of the state-authorized interception in the Aisenbergs' home, a federal grand jury returned a twenty-seven page, six-count indictment alleging (1) that both in the Aisenbergs' initial report and during the consequent investigation the Aisenbergs

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violated 18 U.S.C. §§ 1001 and 1002 by, among other things, uttering "false, fictitious, or fraudulent statements" to law enforcement respecting Sabrina's disappearance and (2) that the Aisenbergs conspired to effect the deceptions that violated Sections 1001 and 1002.3

The indictment begins in part A, paragraphs one through eight, by alleging some unusual details, including the Aisenbergs' exact street address, the name of the Aisenbergs' pet dog ("Brownie"), the number of bedrooms and bathrooms in the house, the existence of certain physical features at and near the Aisenbergs' home (a cut-de-sac, a wooden fence, a concrete wall, a nearby road, street lights), and the presence of both the Aisenbergs' alarm system and an accompanying exterior sign, which warns prospective intruders and other passersby about the alarm system. In paragraph two the indictment refers for the first time to Sabrina Aisenberg, and the indictment's author elects to designate Sabrina as "Baby Sabrina" (presumably to capture whatever sensational and evocative value attaches to an alleged crime against an innocent infant). Paragraph nine of the indictment alleges that:

In November 1997, Baby Sabrina suffered from ear infections and perforated ear drums, requiring medical treatment. STEVEN B. AISENBERG and MARLENE J. AISENBERG missed two follow-up medical appointments for Baby Sabrina on November 10, 1997 and November 17,1997.

(The obvious thrust of paragraph nine, which eventually proves wholly unjustified and misleading because Sabrina saw the pediatrician during her siblings' appointments and the Aisenbergs canceled Sabrina's

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separate appointments, is to project to the reader an image of parental disregard and disinterest in Sabrina's medical welfare, presumably only days before her disappearance.)

In part B the indictment succinctly charges a conspiracy between the Aisenbergs to violate Section 1001 and continues into part C, which alleges in twelve paragraphs the "manner and means" by which the Aisenbergs implemented the alleged conspiracy, including falsely reporting both the kidnapping and the "circumstances of the disappearance," failing to comply with law enforcement's requests for certain cooperation, providing false and misleading information to law enforcement, agreeing between themselves not to "tell anyone the truth concerning the disappearance of Baby Sabrina," and diverting toward their "personal expenses" the money received from others to assist in the search for Sabrina. (This latter accusation presumably evidences the Aisenbergs' supposed moral laxity rather than an identified federal crime.)

In part D the indictment specifies fifty-nine "overt acts" (counting one per paragraph) allegedly undertaken by the Aisenbergs in furtherance of their conspiracy to deceive law enforcement. The "overt acts" begin with an allegedly false report to police about the time of Sabrina's disappearance and with the allegedly conflicting reports concerning the details. The "overt acts" section of the indictment contains much that has caused controversy and rancor throughout this case. Some of the allegations seem trivial; for example, Brownie's alleged and suspicious failure to bark on the night of Sabrina's disappearance.4 Some of the allegations seem almost gratuitous; for example, the repeated (and undoubtedly embarrassing) reference to Marlene Aisenberg's involuntary urination when she found Sabrina missing. Some of the allegations seem redundant or, at least, unnecessarily elongated; for example, the detailed account of the Aisenbergs' alleged lethargy and disinterest in law enforcement's investigation. In sum, the indictment of the Aisenbergs is unaccountably lengthy and replete with matters that are (at best) mere surplusage and unnecessary to the essential purpose of an indictment, which is to provide a "plain, concise, and definite written statement of the essential facts constituting the offense charged," as prescribed by Rule 7(c)(1), Federal Rules of Criminal Procedure. This purpose is properly accomplished by an orderly and businesslike account

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of "only those facts and elements of the alleged offense necessary to sufficiently inform the accused of the charge and to safeguard the accused from double jeopardy." United States v. Gold, 743 F.2d 800, 812 (11th Cir.1984). An indictment is an instrument designed to fairly notify a defendant of the essential facts comprising an offense against a specified law. An indictment is not an opportunity for the United States to marshal all available details of the inculpatory evidence, to advance arguments (especially tendentious or highly provocative arguments) and promote inferences in support of conviction, or to unnecessarily defame, embarrass, or— more to the particular point of the Hyde Amendment—gratuitously vex the defendant.

Admittedly, no distinct boundary exists distinguishing a merely lengthy or a "speaking" indictment from an indictment purposefully swollen with unduly suggestive detail. The prosecutor enjoys some latitude and, of course, an indictment is neither likely to nor intended to flatter a defendant. However, a fair reading of the Aisenberg indictment (independent of any consideration of the events that follow the indictment, which events adulterate one's view dramatically) leaves the disinterested observer with reinforced skepticism about the intention of the indictment's author. This troubling suspicion is compounded and further reinforced by a series of allegations of dubious relevance, detached context, or questionable veracity, for example, that Marlene Aisenberg "feigned a catatonic state in front of law enforcement agents," that the Aisenbergs "failed to provide the requested lists for law enforcement," that "Marlene J. Aisenberg ... denied that there was a bald spot on Baby Sabrina's head ...," that the Aisenbergs "retreated into their bedroom in the Aisenberg residence and turned the stereo on loudly ...," that Steven Aisenberg told his wife "what happens in this house stays in this house ...," that Marlene Aisenberg told her husband that "she doesn't like lying to her father concerning the disappearance of Baby Sabrina ...," that, as alleged in paragraph thirty-one of the indictment (in its entirety):

On or about December 23, 1997, at approximately 10:00 a.m., STEVEN B. AISENBERG and MARLENE J. AISEBERG conducted a press conference at the office of the attorney, read from a prepared statement, and refused to answer any questions posed by the media. ... or that, as alleged in paragraph forty-one of the indictment (also, in its entirety): On or about January 12, 1998, STEVEN B. AISENBERG...

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