United States v. Aisenberg, Case No. 8:99-CR-324-T-23A (M.D. Fla. 2/14/2001)
| Decision Date | 14 February 2001 |
| Docket Number | Case No. 8:99-CR-324-T-23A. |
| Parties | UNITED STATES OF AMERICA v. STEVEN B. AISENBERG MARLENE J. AISENBERG. |
| Court | U.S. District Court — Middle District of Florida |
The Defendants, who are charged with conspiracy and making false statements to law enforcement in violation of 18 U.S.C. §§ 371 and 1001, move to suppress a state authorized intercept and claim that applying agents deliberately made false statements and omissions and that the surveillance violated Florida's statutory scheme (doc. 90). United States District Judge Steven D. Merryday referred the matter to me for a report and recommendation with directions to conduct such hearings as are necessary (doc. 119). See 28 U.S.C. § 636(b)(1); Local Rule 6.01(c)(14). After a suppression hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), I recommend the district court grant the motion for the following reasons.
At 6:42 a.m. on November 24, 1997, Marlene Aisenberg called 911 and frantically reported someone had kidnapped her five-month old daughter, Sabrina Aisenberg. Within minutes, a Hillsborough County deputy sheriff arrived at the Aisenbergs' Valrico home. Teams of detectives, deputies, Florida Department of Law Enforcement agents, and FBI agents eventually scoured a four-mile radius for clues. Their exhaustive efforts, combined with massive media attention, yielded no promising leads. Authorities for the next two weeks maintained a twenty-four hour vigil at the Defendants' residence waiting for a ransom demand. No one called.
Agents suspected the Defendants' account from the start. Several reasons fueled this: the lack of any physical evidence at the crime scene or reports of unusual activity in the neighborhood, the presence of a dog in the house which reportedly barks at strangers but did not bark the night of the baby's disappearance, the rarity of a crime like this occurring in the manner the Defendants described, the failure of mass publicity to draw meaningful leads, Marlene Aisenberg's peculiar comments to interviewing detectives, and the Defendants' behavior toward investigating agents. The Defendants likely surmised they were suspects too; they hired present defense counsel within days after reporting their daughter missing.
On December 12, 1997, Hillsborough County Sheriff detectives Linda Sue Burton and William Blake, the two lead detectives, applied to a state court judge for an order authorizing the interception of the Defendants' communications at their residence.1 Although neither one had applied for a wire before, they met with a superior, Corporal Knowles, to decide what facts and information should be included in their affidavit. Knowles then drafted the application, the proposed order, and the authorization using forms maintained by the Hillsborough County Sheriff's Office (HCSO).2 Burton and Blake then reviewed Knowles's work for factual accuracy. Thus, the two affiants claimed probable cause existed to believe the Defendants "and others as yet unknown, have been committing, are committing and are about to commit" certain offenses against the State of Florida, namely: homicide, sale of a minor child, child neglect with great bodily harm, and aggravated child abuse in violation of FLA. STAT. §§ 782.04, 63.212(1)(d), 827.03(3), and 827.03(2). An intercept, the affiants reasoned, would likely uncover evidence of these crimes.
Burton and Blake presented their joint application to Assistant State Attorney Eric Myers who presumably reviewed the documents and presented them to State Attorney Harry Lee Coe for his approval. The same day, Chief Circuit Judge F. Dennis Alvarez authorized the request. That order permitted agents to monitor the Defendants' home for thirty days and required the state attorney (or a designated representative) to submit reports every ten days "showing what progress ha[d] been made toward achievement of the authorized objective and the need for continued interception."
On December 13, 1997, authorities placed intercepts in the Aisenbergs' kitchen and bedroom. Per instructions, monitors minimized conversations every two minutes, unless they were recording a pertinent conversation, and shut down the bedroom intercept from midnight to 7:00 a.m. Three tape decks controlled by a master switch operated simultaneously. Two decks recorded the tapes to be submitted to the state attorney and the court. Monitors continuously inserted and removed tapes from the third deck (the workcopy deck) as they identified pertinent calls. The monitor who identified a relevant call later transcribed that conversation usually within twenty-four hours (although sometimes other personnel transcribed the call). Corporal Knowles then retrieved these handwritten transcripts, summarized them, and prepared the state attorney's ten-day progress reports to the court.3 At some point in this process, Burton and Blake listened to the pertinent calls (known as P-calls) with the aid of the monitors' transcripts. When they or others made changes to the transcripts after Knowles made his summaries, Knowles did not correct his draft summaries for the ten-day progress reports.
On January 9, 1998, and again on February 6, 1998, Burton and Blake applied for thirty-day extensions of the intercept. Again, while neither detective prepared these documents, they met with superiors and discussed what should be included. Knowles, who authored the first extension, and Sergeant Roman, who drafted the second, decided what information to include and simply pasted the pertinent progress report summaries from the previous thirty days of surveillance to show the intercept's progress and the need to continue it.4 Each drafter attached transcripts of the summarized conversations as exhibits, but neither one checked to see if the transcripts matched the summaries nor if any updated transcripts rendered the summaries inaccurate.
Burton and Blake, like they did for the initial intercept application, reviewed the extensions for factual accuracy. Like Knowles and Roman, neither took the time to determine if a transcript supported the summary. Although Burton now admits she spotted some differences, she said nothing. Assistant State Attorney Myers also did not note any inconsistencies, and he did not question the detectives about the applications. Eventually, Judge Alvarez approved the extensions.5
State authorities terminated the wire on March 2, 1998. The 79 days of surveillance generated fifty-five audio cassettes recording over 2,600 conversations. More than seventeen months later, a federal grand jury returned a seven-count indictment charging the Defendants with conspiracy and making false statements to investigators regarding the disappearance of their daughter.6
The Defendants essentially give four reasons to suppress the evidence derived from the electronic surveillance. First, they argue detectives Burton and Blake, in violation of the Fourth Amendment, intentionally, or with reckless disregard for the truth, made materially false statements or omitted material facts in each application. See Franks v. Delaware, 438 U.S. 154 (1978). More particularly, the Defendants contend the detectives misled the reviewing judge about their behavior, their affection for their daughter, the evidence at the crime scene, their interviews by law enforcement, potential leads, and the content and context of their intercepted conversations. Second, the surveillance orders, contrary to Florida law, authorized the interception of communications about crimes outside the wiretap scheme, namely, sale of a minor child, child neglect with great bodily harm, and aggravated child abuse. Accordingly, the warrants are invalid and all surveillance evidence should be suppressed. Third, agents monitoring the wire failed to adequately minimize communications protected by the marital and attorney-client privileges. Fourth, Burton and Blake failed to show an investigative need for electronic eavesdropping, a statutory prerequisite (doc. 90).7
The government, in response, denies Burton and Blake misled the reviewing judge. If the detectives did make any misstatement or omitted any information, they did not do so deliberately, and their misstatements or omissions were immaterial to the probable cause findings. Thus, the government urges a Franks hearing is unnecessary. It also rejects the Defendants' other reasons for suppressing the evidence (doc. 170).8
On October 16, 2000, after the benefit of oral argument, I issued an order (doc. 257) finding the Defendants had made a substantial preliminary showing warranting a limited Franks hearing as to certain paragraphs of the first and second extensions (first extension: ¶¶ V5-6, V8-11, V13, V17, V20-24; second extension: ¶¶ V10, V17-19). Notably, most of these paragraphs concern issues pertaining to the audibility of the intercepted conversations.
This report first addresses the Franks issues. It explains the standards for evaluating a Franks challenge, continues with my reasons for deciding a Franks hearing is unnecessary as to the initial intercept application, and follows with my findings regarding the first and second extensions. The remainder of the report outlines Florida's electronic surveillance scheme, analyzes the Defendants' and government's arguments pertaining to the consequences of conducting surveillance on unauthorized predicate crimes, and addresses the Defendants' claims about lack of proper minimization during the surveillance and the investigative need for the surveillance.
In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held a defendant has the right under the Fourth Amendment to challenge the truthfulness of a police officer's sworn statements in support of a search warrant. But this right is limited and prescribed. Accordingly, the Court outlined a three-stage analysis for evaluating Franks claims.
First, the...
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