United States v. DiBernardo

• Decision Date: 18 March 1983
• Docket Number: No. 80-56-Cr-EPS (S1-S8) (S10-S16).,80-56-Cr-EPS (S1-S8) (S10-S16).
• Citation: 561 F. Supp. 783
• Parties: UNITED STATES of America, Plaintiff, v. Robert "Debe" DiBERNARDO, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

561 F. Supp. 783

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

No. 80-56-Cr-EPS (S1-S8) (S10-S16).

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

March 18, 1983.

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., J. 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 ON MOTION FOR RECONSIDERATION

SPELLMAN, District Judge.

The Government has filed a Motion for Reconsideration relating to this Court's opinion of December 20, 1982 with regard to the dismissal without prejudice of the Miporn indictments (552 F.Supp. 1315). The Motion for Reconsideration in essence asserts four grounds:

"First, (it is asserted that) it appears that the Court found the Government attorneys were aware of Special Agent Livingston's psychological problems (at the time the matter was originally presented to the Grand Jury or at the time of the superseding indictments) and that they had an obligation to so inform the Grand Jury." The simple answer to that assertion is that the Court made no such finding.

Secondly, the Government appears to assert a lack of understanding by this Court of the grand jury process and proceeds to devote three pages of educational material in that regard. Although the Court appreciates the dissertation, the Court is fully aware of the function of a grand jury and the distinction between grand and petit juries.

Thirdly, the Government states that this Court's findings did not warrant dismissal of the indictments. This contention is basically broken up into two parts. First, the Government asserts that it was essential that this Court find either perjury or the strong probability of perjury before a dismissal would have been warranted. The second contention is that since the grand jury in question did in fact return three racketeering indictments which charge some of the original forty-five defendants with racketeering, that that justifies the evidence pertaining to violence, extortion, mafia dealing and organized crime. In addition, the Government states that the testimony pertaining to child pornography was justified because it was being investigated by that grand jury although the indictment was returned in Honolulu, Hawaii.

The Government fails to understand this Court's opinion as pertains to these contentions for three separate and distinct reasons. The assertion that it was necessary to dismissal for the Court to find actual perjury or strong probability thereof totally overlooks the duality of reasons upon which this Court's decision was based. If this Court's decision was based solely on Livingston's credibility, the assertion of the Government might be correct; but this Court found that the grand jury was tainted for two reasons. The Livingston liability did not stand alone. Coupled with the obvious psychological problems casting doubt on Agent Livingston's ability to testify truthfully before the grand jury was the extraneous evidence which is the subject matter of the Government's second assertion.¹ That second issue would have been of no concern whatever to this Court had this matter proceeded on the original indictment charging forty-five defendants with one conspiracy since some of the thirteen defendants in question would have been included in those forty-five and might have had some bearing on the single nationwide conspiracy alleged in the original indictment. Such was not the case. The Government, at its own choosing, elected to file sixteen superseding indictments. There is no contention made that any of the defendants in question were included in all sixteen superseding indictments and a review of the three indictments in question clearly indicates the contrary.

Likewise there is no contention that such evidence, however, admissible for consideration by the grand jury in returning the original indictment, was in any way to be considered by the grand jury as pertains to those defendants not so labeled. Certainly such evidence had no bearing on the issue of obscenity as pertains to any of the defendants. This simple fact was never communicated to the grand jury in considering the superseding indictments. That was a mistake.

Last but not least is the underlying reason for dismissal. From neither of the above conclusions, standing alone, could there flow the determination by this Court that the indictments in question must be dismissed. Such was not the case. This Court's action in dismissing without prejudice these indictments was based on the realization that the issues could not be separated and that the "mistake" was coupled with the far more significant concern regarding Mr. Livingston's total credibility as a witness whether before the grand jury or otherwise.

The use by this Court of the heading "ABUSE OF THE GRAND JURY PROCESS" as the heading for the discussion under IIB of this Court's opinion of December 20, 1982 might in hindsight have been inappropriate and misleading. The heading for the entire analysis under Section II should have simply read "The Grand Jury was Tainted." The bottom line of the Court's opinion was that the grand jury had been "tainted".

Clearly, the uppermost concern in this Court's mind was Patrick J. Livingston, the witness. Having personally observed the witness, having heard the testimony and read the reports of the numerous medical experts and the conflicts spawned by the inconsistent statements of the "witness", this Court knew that it was confronted with problems seldom visited by any United States District Judge since the advent of the judiciary. A dedicated member of one of this country's finest law enforcement agencies, the F.B.I., had been reduced to a finding by this Court "that at present, Patrick J. Livingston would lie...