United States v. DiBernardo

• Decision Date: 20 December 1982
• Docket Number: No. 80-56-Cr-EPS (S1-S16).,80-56-Cr-EPS (S1-S16).
• Citation: 552 F. Supp. 1315
• Parties: UNITED STATES of America, Plaintiff, v. Robert "Debe" DiBERNARDO, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

552 F. Supp. 1315

UNITED STATES of America, Plaintiff, v. Robert "Debe" DiBERNARDO, et al., Defendants.

No. 80-56-Cr-EPS (S1-S16).

United States District Court, S.D. Florida, Criminal Division.

December 20, 1982.

Fred A. Schwartz, Marcella S. Cohen, Miami, Fla., for plaintiff.

Todd Lyster, Chicago, Ill., Arthur M. Schwartz, Denver, Colo., Burton Sandler, Towson, Md., Elliott J. Abelson, Beverly Hills, Cal., Rebekah J. Poston, Miami, Fla., John F. Sheehan, Providence, R.I., William E. Seekford, Towson, Md., Robert M. Leen, Hollywood, Fla., Bernard Berkman, Cleveland, Ohio, Roger Jon Diamond, Pacific Palisades, Cal., Jeffrey M. Cohen, Miami, Fla., Anthony M. Glassman, Beverly Hills, Cal., David Bogenschutz, Hollywood, Fla., Robert Smith, Encino, Cal., Theodore Klein, Corey E. Hoffman, Miami, Fla., Michael Klein, Los Angeles, Cal., John H. Weston, Beverly Hills, Cal., Herald Price Fahringer, New York City, Henry J. Boitel, Rockville Centre, N.Y., Joel Kaplan, Miami, Fla., Stephen J. Finta, Fort Lauderdale, Fla., Humberto Aguilar, Miami, Fla., Ralph J. Schwarz, Jr., New York City, Gerald M. Werksman, Chicago, Ill., Phillip E. Kuhn, Memphis, Tenn., A. Matthew Miller, Hollywood, Fla., Joel Hirschhorn, Miami, Fla., for defendants.

MEMORANDUM OPINION AND ORDER DISMISSING INDICTMENTS WITHOUT PREJUDICE

SPELLMAN, District Judge.

THIS CAUSE is before the Court on several motions by various Defendants to dismiss the indictments and motions to adopt and join in the same. Basically, there are two convincing arguments for dismissing the indictments in these cases: tainted grand jury testimony and abuse of the grand jury process.

I. BACKGROUND

In the summer of 1977, the F.B.I. commenced an undercover investigation of major national distributors of sexually explicit films and magazines. Two F.B.I. agents were chosen to pose as pornographers. Special Agent Patrick Livingston played the role of Pat Salamone and Special Agent Bruce Ellavsky posed as Bruce Wakerley.

Together the two undercover agents made contacts throughout the country with national distributors of pornography and arranged to have the merchandise shipped to them in Miami, Florida. The operation was known as "Miporn".

On June 19, 1979, the Government began to present its case to Grand Jury 79-4. For approximately eight months (June 19, 1979 to February 11, 1980), the Grand Jury heard testimony regarding an alleged nationwide conspiracy to knowingly transport in interstate commerce for the purpose of sale and distribution obscene, lewd and lascivious material in violation of Title 18, United States Code, Section 1465.

On February 12, 1980, the Grand Jury returned an indictment charging forty-five (45) Defendants in one count of conspiracy to commit interstate transportation of obscene material. The indictment listed seventy-nine (79) separately numbered paragraphs of alleged overt acts, all in violation of Title 18, United States Code, Section 371, and seventeen (17) substantive counts involving small groups of Defendants, all in violation of Title 18, United States Code, Section 1465 and Section 2.

As part of the conspiracy, it was alleged that the Defendants would facilitate the collection of debts within the obscenity industry and enforce the prohibition against unauthorized duplication of obscene films and motion pictures which are owned, manufactured, and distributed by members of the conspiracy through use of boycotts, threats of force and force. To substantiate the above, the Government presented evidence that it assumed would establish a nationwide conspiracy of organized crime individuals who used violence to control the "pornography industry". This evidence included repeated references to mafia control and policies of using violence and extortion. In addition, contemporaneously with the presentation of the evidence relating to this "national" conspiracy to distribute obscene material across state lines, the grand jury heard evidence regarding additional conspiracies to pirate copyrighted films. In fact, the same jury that returned the indictment in this case, United States v. DiBernardo, et al., 80-56-Cr-EPS, involving the alleged national pornography conspiracy, also simultaneously returned the indictments in United States v. Bernstene, et al., Case No. 80-57, and United States v. Gottesman, et al., Case No. 80-59.

On February 14, 1980, nationwide arrests and searches were conducted. The Defendants were arraigned during the period of March 5th through the 14th, 1980.

The Government dismissed the original indictment. On October 15, 1980, the Government filed superseding indictments, effectively severing the various groups of Defendants into separate conspiracies unrelated to the conspiracies alleged in the other indictments.

At this time, four of the sixteen cases have been tried. The trials have resulted in three convictions, United States v. DiBernardo, et al., 80-56-Cr-EPS (S12), United States v. Peraino, et al., 80-56-Cr-EPS (S3) and United States v. Bagnell, 80-56-Cr-EPS (S14) and one acquittal, United States v. Bernstene, 80-56-Cr-EPS (S9).

With twelve of the sixteen cases remaining to be tried, a most unexpected turn of events transpired. On January 21, 1982, the prosecutor in charge of the Miporn prosecutions advised this Court that Special Agent Patrick Livingston had been arrested for shoplifting. After discussions with the Court, the prosecutor by letter dated February 12, 1982, advised all Miporn counsel of the Livingston arrest. In this letter, the prosecutor explained that Agent Livingston had been arrested for shoplifting and at that time, identified himself as Pat Salamone. Moreover, the prosecution indicated that Livingston had psychiatric problems which made it difficult for him to distinguish between his real identity and his undercover identity.

Following the above disclosure, several Miporn defense counsel made discovery motions requesting Special Agent Livingston's personnel files, administrative file, and any other file arising out of disciplinary or other proceedings relative to Special Agent Livingston's arrest in November, 1981. Defense counsel also requested the disclosure of all grand jury testimony given by Special Agent Livingston and urged this Court for an evidentiary hearing regarding the entire shoplifting incident.

This Court ordered the Government to produce the requested material for in camera inspection. The Court reviewed all files produced and made the determination to disclose all the relevant material including Special Agent Livingston's grand jury testimony. In addition, the Court appointed several psychiatrists to examine Special Agent Livingston to determine whether within reasonable psychiatric certainty a diagnosis can be made as to Special Agent Livingston and how long and to what degree his present condition existed and whether this condition would affect his past, present and future testimony in this case.

To determine what happened, why it happened, and in an effort to discover the truth, this Court granted defense counsel's motion for an evidentiary hearing. For thirteen days, this Court heard testimony from some fourteen witnesses including several psychiatrists who examined Special Agent Livingston, and numerous F.B.I. supervisors and agents who worked with him.¹ The Court even heard testimony from Special Agent Livingston's close friend, Bill Brown, Esq. In fact, as the hearing progressed, it became apparent that a delicate situation was developing with regard to when the prosecutors discovered the Livingston incident. As a result, the Miporn prosecutor, Fred Schwartz, was relieved of his position for purposes of the remainder of the evidentiary hearing, and he and Marcella Cohen were called as witnesses.²

At the hearing, a multitude of exhibits were offered and admitted into evidence. These exhibits included depositions of other psychiatrists who examined Special Agent Livingston, F.B.I. reports, memoranda, airtels and other correspondence and reports relevant to the proceedings. On September 30, 1982, this Court concluded the evidentiary hearings.

II. ANALYSIS

The Court now has pending before it: Motions For New Trials, Motions to Dismiss the Indictments, Motion to Exclude the Testimony of Special Agent Livingston, and Motion for an Evidentiary Hearing and For Discovery on the Issue of Selective Prosecution. Counsel for the defense and prosecution have extensively briefed the legal and factual issues relative to their respective Motions. Moreover on November 12, 1982, this Court heard oral argument with regard to all pending Motions involving Special Agent Livingston. Therefore, at this time, the Court finds itself in an excellent posture to rule on the pending Motions.

After closely examining all the evidence, this Court concludes that Special Agent Livingston has a serious credibility problem. Although this Court does not comment on whether former testimony given by Special Agent Livingston was true or false, it does clearly find that his testimony before the grand jury is tainted. Without attempting to catalog all the varied lies and indiscretions on the part of Special Agent Livingston, the Court does find the following facts as supportive of its opinion.

A. TAINTED GRAND JURY TESTIMONY

On or about March 17, 1980, SAC Nehrbass, who was the F.B.I. Agent in charge of the Miami Office at the time, contacted a psychiatrist, Dr. Alfredo Balasini, expressing concern for the mental health of Special Agent Livingston. On Wednesday, March 26, 1980, SAC Nehrbass wrote a letter to Dr. Balasini. In pertinent part the letter states:

The Agent that I am concerned about is Patrick J. Livingston, who has exhibited indications of abnormal intensity respecting his continuing role in a particular investigation into organized crime involvement in pornography in the United States. He fulfilled an undercover assignment for two and a half years posing as a pornographer. The perception of

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