The tapes

Friends fret over Aisenberg tapes release

On the taped conversations of the Aisenbergs are some who fear embarrassment.

published January 11, 2002

TAMPA -- The two bugs investigators placed in the home of Steve and Marlene Aisenberg four years ago picked up more than 2,600 conversations. While the couple dominate the conversations, dozens of third parties were overheard as well, including friends, family, reporters, lawyers, a rabbi and even a psychic.

Now, all those conversations, some of them potentially embarrassing, could become public, which has made a few of the bystanders a little uneasy.

Last week, federal prosecutors decided not to oppose the release of the audiotapes they used to indict the Aisenbergs in the disappearance of their 5-month-old daughter, Sabrina. The judge agreed, and the Sheriff's Office followed up with a promise to release all the tapes including those not used in the prosecution.

The Aisenbergs wanted the tapes released. They have said all along that they did nothing wrong. The tapes, they said, contained nothing incriminating and, in fact, would help vindicate them.

But also on those tapes are dozens of third parties. The judge has given them until Jan. 22 to give a reason why the tapes shouldn't be released.

The tapes could include potentially embarrassing conversations about marital disputes and everyday household matters that the average person wouldn't want aired publicly.

At least one neighbor, Judy Bailey, has said publicly that she will contest the release of the tapes on which she can be heard. She didn't say anything incriminating, she said, but wonders how the government could bungle a case so badly and then subject bystanders to embarrassment.

The Aisenbergs reported Sabrina missing from their home in Valrico on Nov. 24, 1997. Hillsborough sheriff's investigators quickly came to suspect the Aisenbergs and bugged their home, placing one bug in the kitchen and another in the bedroom. A grand jury indicted the Aisenbergs in 1999 on charges of conspiracy and making false statements.

The charges were dropped in February after a judge recommended the tapes be suppressed. The judge said sheriff's detectives made up facts in getting permission for the bugs, and that the limited number of tapes he listened to did not contain incriminating comments.

Aisenberg lawyer Todd Foster said his clients need the tapes to be released to exonerate them. He said investigators and federal prosecutors abused the bugging process and that has now led to the victimization of the friends, neighbors and others picked up on the tapes.

"It just shows how widespread the fallout can be when the government doesn't follow the rules," Foster said.

Ilene Schwartz, a friend who visited the Aisenbergs' home several times after Sabrina was reported missing, said the tapes could be embarrassing and she'd rather they weren't broadcast all over the radio and television. On the other hand, she said she has complete faith that the Aisenbergs are innocent. Releasing the tapes, she said, could clear that up and refocus the investigation on what happened to Sabrina.

"Whatever I said three years ago I imagine it's been cleared up since then," said Schwartz, who added that it was tough to remember what was said. "It's unfortunate we even have to think about it anymore."

nquiry starts in Sabrina case

As a judge ends the case against the child's parents, the governor names a prosecutor to study the detectives.

published February 23, 2001

TAMPA -- As one investigation into the disappearance of Sabrina Aisenberg came to an end Thursday, another one began.

A federal judge agreed to dismiss all charges against her parents, Steven and Marlene Aisenberg.

The move came a day after federal prosecutors filed a request with U.S. District Judge Steven Merryday, saying they could not go forward knowing they had no reasonable probability of winning a conviction.

Merryday's order ends the criminal prosecution of the Aisenbergs, who were charged with lying about the disappearance of 5-month-old Sabrina.

Now the investigation shifts to the investigators.

Gov. Jeb Bush assigned a special prosecutor Thursday to look into the conduct of two sheriff's detectives accused of lying to a judge when getting permission to bug the couple's home. And defense attorneys have vowed to pursue restitution from the Sheriff's Office and the U.S. Attorney's Office in Tampa.

Local attorneys familiar with the federal court system question how prosecutors could have sought an indictment based on the tapes. And they wonder why the U.S. Justice Department doesn't investigate the federal prosecutors.

"My experience has been that the department has made inquiries in cases much less involved than this," said former federal prosecutor John Fitzgibbons. "I think there are some questions that need to be answered."

Sabrina Aisenberg was reported missing from the Aisenbergs' home in Valrico on Nov. 24, 1997. The Aisenbergs said someone must have crept into the home and snatched the baby. No trace of the child has been found.

Investigators suspected the couple knew what had happened to their child, and sought permission to bug the home.

Based on information detectives and prosecutors said was gleaned from those surveillance tapes, a grand jury indicted the couple in September 1999, charging them with conspiracy and making false statements about their child's disappearance.

Last week, U.S. Magistrate Judge Mark Pizzo released a report that said the tapes were mostly inaudible, and contained none of the incriminating statements that investigators claimed were there. Pizzo recommended the tapes be suppressed from evidence, prompting prosecutors to have the charges dropped.

A Justice Department spokesman said Thursday that Pizzo's report does not accuse prosecutors of misconduct.

However, Pizzo was not asked to address the prosecutors' role, said Todd Foster, one of the Aisenbergs' defense attorneys. The judge was limited to determining how the detectives obtained permission to use the bugs.

"It doesn't take much to read between the lines, though," Foster said. "Judge Pizzo said the statements were inaudible. He found wrongdoing.

"So why did the prosecutors use what no one else could hear on the tapes?"

The two lead prosecutors, Stephen Kunz and Rachelle DesVaux Bedke, used the tapes to get the grand jury to indict. The indictments included quotes they claimed were on the tapes, but that Pizzo said did not exist.

Fitzgibbons said it raises questions about whether prosecutors used information they knew was false or misleading to indict the Aisenbergs, or whether they didn't listen to the tapes and took the detectives' word for what they contained.

Either way, Fitzgibbons thinks the Justice Department should be interested in finding out.

"This is serious stuff," he said. "How did false information get presented to the grand jury and then appear on the indictment?"

By asking to dismiss the case, the government has helped to make answering that question more difficult.

The Aisenbergs' attorneys had filed a motion asking a judge to look into the prosecutors' conduct and to unseal the grand jury records, which would help show whether prosecutors knew the tapes were inaudible.

The motion outlined in great detail the defense attorneys' theories on how the prosecutors must have known that the tapes were inaudible, but went ahead anyway, smearing the reputations of their clients. They accused the prosecutors of subterfuge and using "sham subpoenas," among other things.

They said that Bedke had deliberately misled a federal judge at a bond hearing when she said that Steven Aisenberg talked of being high on cocaine the night Sabrina disappeared. The reference did not show up in the indictment and the defense attorneys claim it does not exist.

The motion also attacked Kunz's "pattern" of misleading grand juries. Appellate judges had criticized Kunz's handling of grand juries in Jacksonville and Volusia County.

But now that the case was been dropped, that motion will not be argued in court. The prosecutors may not have done anything wrong, but now it will be tough to tell, said Rochelle Reback, a Tampa lawyer not involved in the case.

"By procedural finesse they can avoid an inquiry into their role," she said.

The grand jury records could be unsealed as the Aisenberg attorneys pursue civil remedies or restitution using the Hyde Amendment, a law that allows defendants to collect legal fees if a judge determines the prosecution was "frivolous, vexatious or in bad faith."

It's also possible that the judge could use his administrative authority to look into what happened. He could unseal the grand jury records or hold contempt hearings, although that happens only in rare cases.

"So here we are with circumstances that make it difficult to hold prosecutors accountable for what they may or may not have done," Reback said. "These are the same people that hold criminals accountable for their actions."

The truth gets lost in translation

published February 16, 2001


--------------------------------------------------------------------------------

The Aisenberg Tapes
As translated by the Hillsborough County Sheriff's Office

(Original tape in bold)

(Sheriff's translation in normal type)

* * *

January 12, 1998
STEVE AISENBERG: Let's watch television rather than talk about what did or didn't happen.

MARLENE AISENBERG: Okay.

VOICE IN BACKGROUND: I'd like to buy a vowel, Pat.

* * *

STEVE: At this point in our conversation, I would like to declare that my name is Steve Aisenberg, that's A-I-S-E-N-B-E-R-G, and I am confessing to everything. I am very guilty.

MARLENE: I am acknowledging what you are saying, Steve, and in a clear, unmistakable voice, I would like to join you in an audible statement of guilt.

STEVE: Let us cover up our guilt by hiring a lawyer. Furthermore, let us conspire to deceive the investigators by making false statements to them.

MARLENE: In a clear, unambiguous voice that anyone can understand, in the event our words are being recorded, I am agreeing with you.

February 17, 1998
MARLENE: I notice we're out of corn flakes.

STEVE: Okay. I'll put cereal on the list, in addition to paper towels, toilet paper and dishwashing detergent.

MARLENE: I can't decide whether it would be better to go to Target for those other things. Sometimes the prices are better for household products.

STEVE: Whatever you say.

* * *

MARLENE: I hate you, Steve! I hate you for what you did to our daughter! I am saying this in a clear voice, to make sure there is no doubt in case a judge is being asked to extend our wiretap!

STEVE: I admit it all. I did it. I am not sure how I could be any more clear about it. Our guilt knows no bounds.

MARLENE: You and I also have made false statements to the investigators. With these words we clearly admit violating Title 18, U.S. Code, Sections 1001 and 1002.

March 1, 1998
STEVE: (Unintelligible remark that may or may not be incriminating.)

MARLENE: (Unintelligible reply.)

STEVE: (Muffled comment.)

MARLENE: (Unintelligible.)

* * *

STEVE: The jig is up. They are onto us. They have discovered our guilt, which we are now freely discussing in the privacy of our own home.

MARLENE: Then we must conspire further to cover up our despicable crime. We will rely more than ever on our attorney. He will become part of our conspiracy by asserting the fact that we are not guilty.

STEVE: But Marlene, you are forgetting the Rules of Federal Criminal Procedure, which say that if a lawyer defends his clients' interests, he is part of the conspiracy, and should be removed from the case!

MARLENE: That is a risk we must take. We are guilty. We have no choice.

* * *

POSTSCRIPT BY DETECTIVES: At this point, uh, the tape ran out, but you can take our word for it, they confessed, like, a zillion more times and everything, and they also said, "If anybody is listening in via a bug, we just want you to know, that is hunky-dory by us, and you don't need to mess with getting a warrant or any of that."

Look, WE know they're guilty, and YOU know they're guilty, so why sweat the small stuff?

Judge: Suppress Aisenberg tapes

The judge's recommendation comes after a report in which he accuses detectives of lying.
published February 15, 2001

TAMPA -- A federal judge issued a scathing report Wednesday that accuses Hillsborough sheriff's investigators of lying about their case against Steven and Marlene Aisenberg, and recommends pivotal evidence be tossed out of court.

U.S. Magistrate Judge Mark A. Pizzo said investigators acted with reckless disregard for the truth in obtaining warrants to bug the Aisenbergs' home after their 5-month-old daughter, Sabrina, was reported missing in 1997.

Using the words bizarre, baseless, distorted and careless, Pizzo wrote that lead detectives Linda Sue Burton and William Blake deliberately omitted facts and misled the judge who signed the warrants. Pizzo recommended that the secretly taped conversations investigators used to indict the couple be suppressed, a move that would leave the government's case in shambles.

"The detectives' implications (in the applications for the warrants) . . . are pure fiction," Pizzo wrote.

Federal prosecutors have 10 days to respond. U.S. District Judge Steven Merryday will make the final ruling after considering Pizzo's recommendation. District judges generally go along with the recommendations.

Officials with the U.S. Attorney's Office and the Sheriff's Office said they were reviewing the 63-page report and would not comment. Last year, a spokesman for Sheriff Cal Henderson said the sheriff would investigate how his detectives handled the case after it was closed.

The Aisenbergs, hosting a Valentine's Day party for their other daughter at their new home in Maryland, were reluctant to comment. Steven Aisenberg said he hoped authorities would begin looking for his daughter again.

"We think about our daughter every day," he said. "The most important thing to us is her safe return home."

A massive search ensued after Sabrina was reported missing from their former home in Valrico on Nov. 24, 1997. From the start, the Aisenbergs said someone must have crept into their home at night and stolen Sabrina. No trace of the child has been found.

Investigators quickly suspected the Aisenbergs had either murdered or sold their daughter. They applied to bug the home and placed the listening devices inside less than three weeks after the disappearance.

Investigators taped more than 2,600 conversations on 55 tapes over 79 days. Federal prosecutors used those tapes to persuade a grand jury to indict the Aisenbergs in 1999 on charges of conspiracy and making false statements about their child's disappearance.

At the time, authorities released several incriminating statements they said could be heard on the tapes. For instance, Marlene Aisenberg was quoted as telling her husband 29 days after Sabrina's disappearance: "The baby's dead and buried! It was found dead because you did it! The baby's dead no matter what you say -- you just did it!"

And in an application investigators needed to extend the time the listening devices could be used, she is quoted saying: "I hate you, I hate what you did to our tiny daughter."

In a 116-page motion, defense attorneys asked that the tapes be suppressed, arguing that misrepresentations, omissions of fact and outright lies were used in obtaining court orders permitting the surveillance. Attorney Todd Foster argued during a two-week hearing in December that the tapes were largely inaudible, and that the statements attributed to the couple were fabrications of overzealous detectives and prosecutors.

On Wednesday, Pizzo agreed, saying "no reasonably prudent" listener would come to the same conclusions as Burton and Blake.

"Such deductions defy human experience," he wrote. Pizzo said detectives seemed to be guessing what was said on the tapes and misled Hillsborough Circuit Judge F. Dennis Alvarez, who signed the extensions.

Pizzo went further, though, giving reasons why he thought the original application, not just the extensions, should be suppressed.

Pizzo said the defendants were correct in arguing that the investigators acted too quickly in obtaining the original warrant to bug the Aisenberg home. The law requires such surveilence techniques to be used as a last resort, after exhausting most other investigative measures.

Pizzo pointed out that the investigators had not finished an analysis of the Aisenbergs' finances, something that could have helped bolster the theory that they had sold their baby, or paid someone to dispose of the body.

Only a handful of major crimes in Florida can be used as a reason to bug a home, and the judge agreed with the Aisenbergs' attorneys that the original application included offenses not on the list. After a lengthy legal explantion, Pizzo said that this was not a "minor technical mistake" and that the proper sanction was to suppress evidence gathered on all the surveillance tapes, not just the conversations captured after the extensions were granted.

"The (detectives) did not give Judge Alvarez a full and complete statement about their investigative efforts," Pizzo wrote. "Judge Alvarez, unaware, had to fulfill his responsibilities in a vacuum of information."

Local attorneys following the case called the recommendation well-reasoned and a stunning blow that guts the government's case.

So far, the government has produced little evidence against the Aisenbergs other than the taped conversations. Provided they don't have some undisclosed evidence up their sleeve, the prosecutors are left with a dilemma, said Tampa defense attorney Rochelle A. Reback.

They can drop the charges, increasing the likelihood that the Aisenbergs could win significant financial restitution from the government. Or they can stick it out, and suffer through the Aisenbergs' remaining motions, the most significant of which charges prosecutorial misconduct and whether the grand jury had enough truthful evidence on which to base the indictment.

The motion could require the court to examine those secret proceedings, a rare occurrence, Reback said. The U.S. Justice Department also could launch its own investigation into whether prosecutors knowingly presented false evidence to the jurors.

As for the local detectives, Gov. Jeb Bush could assign a special prosecutor to look at how they handled the case, a scenario that wouldn't surprise former federal prosecutor John Fitzgibbons. Judge Pizzo made it clear that he thought the detectives lied to obtain the warrants, a crime under Florida law, Fitzgibbons said.

"That would be crossing the line," he said. "One way or the other, this doesn't look like it's going away any time soon."

-- Times staff writer Amy Herdy contributed to this report, which used information from the Associated Press. Contact Graham Brink at (813) 226-3365 or brink@sptimes.com.

Events since Aisenbergs were indicted

1999

Sept. 9: A federal grand jury indicts Steve and Marlene Aisenberg on charges of making false statements, accusing the couple of fabricating a kidnapping story in November 1997 to explain the disappearance of their 5-month-old daughter, Sabrina.

Oct. 6: The Aisenbergs appear in federal court in Tampa. Their lawyer, Barry Cohen, enters innocent pleas.

2000

Feb. 18: Attorneys for the Aisenbergs file motions to suppress secretly recorded audiotapes from evidence. They say investigators broke the law by secretly taping the couple's conversations about their missing daughter. They also contend that investigators manipulated the grand jury, sicced child abuse investigators on the Aisenbergs and orchestrated media leaks to guarantee they would be charged.

May 15: Former FBI Agent Bruce Koenig, a prominent audiotape expert hired by defense lawyers for the Aisenbergs, states in an affidavit that key portions of the Aisenberg tapes secretly made by investigators are unintelligible.

Oct. 17: U.S. Magistrate Mark A. Pizzo rules that detectives appear to have omitted important evidence that contradicted their claims in order to get court approval to bug the Aisenbergs' home.

Nov. 13: U.S. District Judge Steven Merryday rules that the tapes made by Hillsborough sheriff's detectives of Steve and Marlene Aisenberg are "largely inaudible" and of generally poor quality. Merryday did not refer to specific quotes in his ruling, but said he could not hear at least some of the statements provided in transcripts.

2001

Feb. 14: Magistrate Pizzo recommends that the tapes be thrown out.

Aisenberg spying extension unlawful

An investigator admits his application to continue secret surveillance wasn't legal.
published December 22, 2000

TAMPA -- A supervisor of the investigators who monitored the home where baby Sabrina Aisenberg disappeared testified Thursday that he knew the application he wrote seeking to extend court-ordered surveillance did not comply with Florida law.

Hillsborough sheriff's Sgt. Donald Roman, a veteran of 37 wire intercept operations, said he was well aware that state law permits court-ordered surveillance for 11 crimes, and that three he listed in the Aisenberg application were not among them.

In a February 1998 application to Chief Judge Dennis Alvarez to extend surveillance at the Brandon home of Steve and Marlene Aisenberg, Roman listed four crimes being investigated: homicide, sale of a minor child, child neglect with great bodily harm and aggravated child abuse.

Of the four, only suspected homicide provides legally permissible grounds for court-ordered surveillance in Florida.

Although Roman knew his application did not comport with law, he said he never mentioned it to superiors. "The assistant state attorney had looked at, State Attorney Harry Coe had looked at it, the chief judge had looked at it," said Roman. "Who was I to override them?"

Roman's testimony was offered in the ninth day of a hearing on a motion by the Aisenberg defense team to suppress secret surveillance recordings made following the Nov. 24, 1997, disappearance of the Aisenbergs' daughter.

After investigators turned up no forensic evidence of an intruder at the home, and after Mrs. Aisenberg gave conflicting statements, a federal-state task force developed a theory that the Aisenbergs might have sold or murdered the child.

She has never been found, and no murder charge has been lodged. But in September 1999, a federal grand jury indicted the Aisenbergs on charges of conspiracy and lying to authorities.

That case rests almost entirely on 82 days of surveillance tapes on which the Aisenbergs made numerous incriminating statements, prosecutors say.

The defense says otherwise.

Last week, defense attorneys presented former FBI agent Bruce Koenig, who testified many of the tapes are unintelligible. This week, they have focused on the claim that investigators were sloppy or misrepresented what the Aisenbergs said while being monitored by listening devices in their kitchen and bedroom.

Thurday, Roman was questioned about his application to extend surveillance, which includes portions of a previous recording where Marlene Aisenberg appears to be talking about hair "pulled out" of 5-month-old Sabrina's head. Investigators saw it as evidence that the child may have been abused by her parents.

But Roman acknowledged that no context was given for the remark to explain that an investigator had just stopped by the Aisenberg home to ask Marlene about photos appearing to show a swatch of hair missing from Sabrina.

A written summary of Mrs. Aisenberg's comments shows she was discussing hair being pulled out, but then exclaimed, "Unbelievable," as if incredulous at the allegation. But "unbelievable" was dropped from Roman's affidavit.

In other testimony Thursday, a sheriff's detective who monitored the Aisenbergs appeared to surprise prosecutors and defense attorneys alike with the revelation that he has a hearing problem.

Detective Phillip Dubord, who worked the "midnight shift" monitoring conversations from the Aisenberg home, testified that he has "a slight tone deafness." Dubord said he experienced no listening problems on previous wiretap operations, where he monitored only telephone conversations.

But he said the Aisenberg case was his first try at listening devices, and he explained the household noise and electronic distortion made it difficult for him to understand what the Aisenbergs were saying. The problem forced Dubord to ask other monitors to transcribe tapes of conversations he had listened to, he said.

Tapes leave listeners doubtful

The enhanced tapes of the Aisenbergs sounded unnatural, and the credentials of a government audio expert were questioned.

published December 19, 2000

TAMPA -- A renowned audio expert testified Monday that he could identify a number of critical taped statements suggesting Steve and Marlene Aisenberg lied to authorities about the disappearance of their daughter Sabrina.

Previous Times coverage Anthony J. Pellicano, who owns a trademark on a computer program to analyze recorded sound, said his advanced technology allowed him to "surgically remove" background noise from the Aisenberg tapes and enhance the recordings so incriminating statements allegedly made by the couple could be discerned.

The playing of the enhanced tapes in court Monday, however, had several observers shaking their heads.

The enhanced version sounded unnatural, as if recorded in a chamber or a cave. Few words on the seven-minute tape were intelligible to reporters, even those who followed along on transcripts of the recording secretly made on Christmas Eve 1997, in the master bedroom of the Aisenberg's Brandon home.

In the end, U.S. Magistrate Judge Mark Pizzo listened to Pellicano's enhanced recording, then said he would rely on the original tape investigators first played on a Dictaphone three years ago.

"The enhanced copy heard in court is more difficult to hear than the others," Pizzo said. "I haven't noticed a lot of difference between all these versions, except that some have less background noise."

Monday's court session was the sixth day in a hearing to determine if Pizzo should recommend suppression of the Aisenberg tapes, a move that might cause the collapse of the Aisenberg case.

Five-month-old Sabrina vanished during Thanksgiving week in 1997, an apparent kidnapping victim. Unable to find a trace of any intruder, Hillsborough sheriff's detectives became suspicious of her parents and obtained court orders to install listening devices in the couple's bedroom and kitchen.

Taped conversations of the Aisenbergs purportedly talking about Sabrina's disappearance were later used to get extensions of the court-ordered surveillance.

Sabrina is still missing and presumed by investigators to be dead.

Comments on the surveillance tapes formed the basis for a grand jury indictment of the Aisenbergs on federal charges of conspiracy and making false statements.

The couple have maintained their innocence and were back in court Monday, listening without a hint of emotion to tapes that prosecutors want to use to send them to federal prison.

Defense attorneys claim investigators misrepresented what the couple actually said on tape. Last week, they elicited the testimony of their own audio expert, former FBI agent Bruce Koenig, who said the Aisenberg tapes were "audible but not intelligible."

Monday, defense attorneys spent much of the morning trying to pick apart the credentials of Pellicano, the government expert who says the tapes are intelligible.

Regarded as the celebrity's private eye, the Los Angeles-based Pellicano has testified as an audio expert in state and federal courts more than a hundred times. He analyzed the tape of the Kennedy assassination and the 18-minute gap in the Nixon tapes.

But under persistent questioning, Pellicano acknowledged that he was a high school dropout who earned a GED while in the U.S. Army, and who has no college degree or formal training in engineering or mathematics.

Defense attorney Todd Foster scoffed at Pellicano's assertion in ads and resumes that he is an expert in disciplines ranging from handwriting analysis to the art of finding missing persons.

And Judge Pizzo seemed incredulous when Pellicano, paid $250 an hour by the U.S. government to examine the Aisenberg tapes, testified that he listened to one snippet "500 times" trying to determine if what was said was "fake it" or "David."

"If you had to listen to it 500 times, didn't the conclusion occur to you that you couldn't make heads or tails of it?" Pizzo asked.

The judge admitted Pellicano's testimony and many of his enhanced tapes into evidence, but said he would only give it the weight he deemed proper.

The defense suggests federal authorities might have known the tapes were flawed even as they sought to indict the couple.

published October 31, 2000

TAMPA -- Attorneys for Steven and Marlene Aisenberg want to know what an FBI analyst wrote in 325 pages of notes while reviewing secretly taped conversations of the couple.

The lawyers hope the FBI notes bolster their contention that the tapes -- key evidence implicating the Aisenbergs in an alleged plot to conceal their missing daughter's fate -- are inaudible. In papers filed with the court, and in courtroom arguments Monday, the defense has suggested federal authorities may have known the tapes were flawed even as they sought to indict the couple last year.

"It's very unusual that the government would not want to disclose what the FBI did," Aisenberg attorney Todd Foster said at the Monday hearing before U.S. Magistrate Judge Mark Pizzo.

The Aisenbergs, who have denied wrongdoing, are charged with conspiracy and lying to investigators. The case began when they reported their 5-month-old girl, Sabrina, missing from their Brandon home in November 1997. In the days that followed, investigators bugged their home and claim to have recorded the couple discussing the child's death.

At Monday's hearing, the defense asked the judge to compel the government to release the FBI notes, along with police logs of who entered and left the Aisenberg home while it was being bugged.

Further, the defense asked for "work copy" tapes (presumably even less audible than the originals under attack) used by detectives when they sought a judge's permission to extend the audio surveillance of the Aisenbergs.

Assistant U.S. Attorney Rachelle Bedke told the judge the FBI analyst attempted to enhance the tapes by eliminating background noise but did not draft a report on whether they were audible.

The defense wants the evidence as it prepares for court hearings on whether the tapes are intelligible, and whether Hillsborough detectives lied or misrepresented facts to a circuit judge when they applied for permission to continue the electronic eavesdropping.

Pizzo ordered the government to turn over the tapes by Nov. 6 so a defense expert could review them. The judge said he would review the matter of the FBI notes and the police logs.

published September 30, 2000

TAMPA -- A federal judge said Friday he wants a special hearing to determine whether the government misrepresented the facts or acted recklessly in its handling of the electronic surveillance leading to the indictment of Steve and Marlene Aisenberg.

At issue are 200 taped conversations of the Aisenbergs made secretly at their Brandon home by Hillsborough sheriff's investigators who thought the couple were less than truthful about the disappearance of their 5-month-old daughter, Sabrina.

In a 116-page motion, attorneys for the Aisenbergs have asked that the tapes be suppressed, arguing that misrepresentations and omissions of facts were used to apply for permission to place the devices necessary to obtain the tapes.

Without the tapes, defense attorneys say, the case against the Aisenbergs will collapse.

In a three-hour hearing Friday, defense attorney Todd Foster said the applications for bugging in the Aisenberg case met neither the law nor the intent of Congress regarding electronic surveillance.

"What we have here is 81 days of oral intercepts in the marital bedroom of this couple," said Foster. "I haven't seen anything like it. The invasiveness here is just what Congress was concerned about when it passed these laws."

Sabrina was reported missing by Marlene Aisenberg on Nov. 24, 1997 and hasn't been seen since.

Suspicious of conflicting stories by the Aisenbergs, investigators sought authorization from Chief Circuit Judge Dennis Alvarez on Dec. 12, 1997, and began electronic eavesdropping. Later, two more such applications were made.

On Sept. 9, 1999, a federal grand jury indicted the Aisenbergs on charges of conspiracy and making false statements to investigators. The couple have denied any involvement in their daughter's disappearance.

The quality of the incriminating tapes was challenged in a hearing Thursday before U.S. District Judge Steven Merryday. Defense attorney Barry Cohen said the tapes mostly are unintelligible and should be thrown out, along with the indictments of his clients.

Merryday said he wanted to schedule a hearing to determine the audibility of the tapes. The judge also ordered a sealed transcript of the proceedings of the grand jury that indicted the Aisenbergs.

On Friday, Foster attacked the government's transcription and interpretation of the tapes, saying "inflammatory statements were spun completely from air."

In a section of one of the later applications for surveillance, Foster pointed out, investigators described surveillance in which the Aisenbergs talked of their baby being dead. But a log made by the deputy listening said most of the conversation "was distorted by noise."

In another section of a later eavesdropping application, Marlene Aisenberg is described as mentioning a kidnapping and saying to Steve, "I hate what you did to our little daughter." But the listening log says nothing of this conversation, and an expert hired by the defense said that portion of this particular tape is unintelligible.

Foster even said that a family videotape of Sabrina had been manipulated by the government to suggest abuse at the hands of her parents. One frame of the videotape shows a shadow on Sabrina's face that investigators said was evidence of bruising, but other frames do not show the shadow, and a family babysitter said she knew nothing of bruising, Foster said.

Assistant U.S. Attorney Stephen Kunz denied that any exculpatory material was withheld in the eavesdropping applications, and said the probable cause for later surveillance was derived not from an isolated conversation or two but from "the larger context" of the findings.

The taped conversations of the couple, parents of a missing baby, are at the center of the federal case.

published September 29, 2000

TAMPA -- Ten weeks ago, U.S. District Judge Steven Merryday decided he wanted to listen privately to taped conversations of Steve and Marlene Aisenberg, tapes which federal prosecutors say are proof that the couple lied about the disappearance of their baby girl, Sabrina.

The Aisenbergs' attorney, Barry Cohen, says the tapes are of such poor quality that they are unintelligible.

In a hearing Thursday, Cohen said the tapes, 63 conversations which have now been copied on to 30 compact discs, are too untrustworthy and too unreliable to be permitted as evidence in the case.

Having reviewed all 30 CDs, Merryday provided no clue about his own opinion as to the audibility, and admissibility, of the recordings. Instead, he suggested he will order a new hearing at which every CD can be considered after being played in court.

"I'm certainly considering having a hearing on this matter," Merryday said. "It would be best to play them one at a time and make a ruling on each one."

The tapes, recorded with secret listening devices placed with a court order, were made at the Aisenbergs' Brandon home in the days following Nov. 24, 1997, when the couple reported that 5-month-old Sabrina had been abducted. The bugging was done after investigators failed to find forensic evidence pointing to an intruder and after suspicions arose that Marlene Aisenberg had been untruthful about the infant's disappearance.

Despite a massive search for Sabrina and numerous televised pleas by the Aisenbergs for her safe return, the child has never been located.

Twenty-two months after Marlene Aisenberg dialed 911 to report her baby missing, a federal grand jury indicted the Aisenbergs on charges of conspiracy and making false statements to investigators.

The Aisenbergs have pleaded not guilty to all charges, are free on bail and have moved from Hillsborough County to Bethesda, Md. If convicted, they each face as much as 25 years in prison.

The damning evidence against the couple, prosecutors said, is contained in the secret tapes.

According to government transcripts, Marlene Aisenberg at one point tells her husband, "The baby's dead and buried! It was found dead because you did it!"

Steve Aisenberg replies, "We need to discuss the way that we can beat the charge," and later says, "I wish I hadn't harmed her. It was the cocaine," according to the transcripts.

Thursday, Cohen reiterated his contention that the transcripts should never be given to a jury because the tapes upon which they are based are mostly inaudible.

Cohen also renewed his request to admit testimony from former FBI Agent Bruce Koenig, an expert in audio authenticity who analyzed the Linda Tripp tapes for Special Prosecutor Ken Starr, as well as tapes from the investigation into the John F. Kennedy assassination.

Koenig says in his affidavit that he cannot hear Marlene Aisenberg on tape saying the baby is "dead and buried" or that her husband did it. Nor can he hear Steven Aisenberg talking about cocaine or trying to "beat the charge."

If Merryday does decide to play the Aisenberg CDs in court, there is no assurance the public will learn once and for all what is on the recordings.

Government prosecutors said Thursday that the media should be barred from hearing the CDs, since anything subsequently ruled inadmissible might prove prejudicial to the Aisenbergs.

"We want to make sure we don't run afoul of the defendants' rights," said Assistant U.S. Attorney Rachelle Devaux-Bedke. If inadmissible information is made public, "the defense could say "our clients have been irreparably harmed by this.' "

An indignant Cohen arose to say he welcomed the media listening to the CDs and reporting fully on the recordings.

Damaging statements on tapes made of Steven and Marlene Aisenberg can't be heard, he says.

published May 16, 2000

TAMPA -- A prominent audiotape expert hired by defense lawyers for Steven and Marlene Aisenberg says he cannot hear many of the explosive comments attributed to the couple by federal prosecutors investigating the disappearance of their daughter Sabrina.

Former FBI agent Bruce Koenig, who analyzed the Linda Tripp tapes for Ken Starr, said in an affidavit filed Monday that key portions of the Aisenberg tapes secretly made by investigators are unintelligible.

Among the statements Koenig stated he couldn't hear on the tapes were Steven Aisenberg saying "I wish I hadn't harmed her," "It was the cocaine," and "We need to discuss the way that we can beat the charge." Prosecutors attributed all those comments to Steven Aisenberg when they unsealed charges against the couple last year.

Koenig also stated he couldn't hear Marlene Aisenberg telling her husband that "The baby's dead and buried! It was found dead because you did it!" and "I just can't take the rap for this."

The Aisenbergs' lawyers, Barry Cohen and Todd Foster, filed the affidavit as part of a motion claiming prosecutorial misconduct and a motion for an audibility hearing.

The lawyers want to argue directly to the judge that the tapes are too unintelligible to be presented to a jury and should therefore be thrown out of court. The tapes apparently are the heart of the government's case, because Sabrina was never found.

Defense attorneys and the expert declined comment through a spokesman Monday. A spokesman for the U.S. Attorney's Office also declined comment, saying prosecutors hadn't received the affidavit yet.

Koenig's affidavit does not address all the damaging comments the indictment says the Aisenbergs made. It doesn't address Marlene Aisenberg saying she doesn't like lying to her father about Sabrina's disappearance. It doesn't address her comment about "them f------ pictures, them f------ pictures in that from video Sabrina," apparently in reference to alleged injuries that investigators said were captured on film.

The Aisenbergs are awaiting trial on charges of lying about the disappearance of their 5-month-old daughter in 1997. They said Sabrina was kidnapped. They appeared on national television shows to repeat claims they were innocent of any wrongdoing.

Investigators took a different view, first searching ponds around the former Brandon house for Sabrina's body, then hiding listening devices in the couple's kitchen and bedroom. They suspected the couple of murder, but said they lacked the evidence to file charges stronger than lying.

Trial had been scheduled for July. But defense attorneys are seeking more time.

Former prosecutors now in defense practice in Tampa said the findings by Koenig could spell trouble for the prosecution's case.

"He is probably No. 1 in the world -- he is the man to see with regard to tape authentication," said Ed Page, a former member of Ken Starr's team who worked with Koenig on the Linda Tripp tapes, as well as tapes offered in evidence against HUD Secretary Henry Cisneros. Koenig has analyzed tapes from the investigation into the assassination of John F. Kennedy.

"He is not some Joe off the street saying he can't hear it," Page said. "That's a really big problem."

Page estimated that prosecutors paid Koenig $150 to $200 an hour for his work as a private consultant on the Tripp tapes. Koenig's Aisenberg affidavit states he spent about 30 hours preparing and listening to tapes from the case.

Former prosecutor John Fitzgibbons said: "It's getting to be an interesting game of chicken here. Somebody is just dead wrong."

"Whoever is wrong will have catastrophic consequences for their case," Fitzgibbons said. "Their credibility will be shot."

published February 5, 2000


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TAMPA -- Steven and Marlene Aisenberg were back in federal court Friday, but there was little progress in setting a date for their trial on charges they lied about the disappearance of their infant daughter, Sabrina, in 1997.

Defense attorneys said their preparations have been slowed by difficulties discerning the contents of more than 200 tapes of conversations that investigators secretly recorded of the Aisenbergs. One Aisenberg attorney, Todd Foster, compared listening to them to "trying to interpret an ancient language."

For their part, prosecutors said they had taken pains to identify which portions of the tapes contained the most explosive comments that were recited in an indictment against the Aisenbergs last fall: that Steven Aisenberg harmed his daughter and Marlene Aisenberg helped her husband cover it up.

The couple deny all wrongdoing and say their daughter was kidnapped from their Brandon home. She has never been found, despite an extensive search by sheriff's deputies.

After investigators conceded they had insufficient evidence to charge the couple with the baby's death, they charged them with lying to police about the disappearance.

The couple did not speak during the hearing. It was their first time before U.S. District Judge Steven D. Merryday, who will preside over their trial.

Defense attorneys said a trial date in June would be too early. They cited their difficulties in examining the tapes. They also indicated that they plan to file extensive motions challenging the legal basis for the secret taping of the couple's conversations in their kitchen and bedroom.

The couple's lawyer wants the tape reviewed to dispute prosecutors' claims.
published January 18, 2000


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A taped conversation is the latest battle for Steven and Marlene Aisenberg. [Times photo]

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TAMPA -- Nothing about the criminal case of Steven and Marlene Aisenberg has been routine, and perhaps the best proof was in last week's legal gyrations involving a cassette tape.

Not once but twice, combative Tampa defense lawyer Barry Cohen filed one of the government's own secret tape recordings of the Aisenbergs in an attempt to get the judge to determine whether federal prosecutors were honest about the tape's contents.

The Aisenbergs are accused of lying about the disappearance of their 5-month-old daughter, Sabrina, in 1997.

Cohen claimed the tape did not contain what prosecutors said it did -- Steven Aisenberg admitting he hurt his daughter and blaming cocaine. The cocaine comment was an explosive accusation made by a federal prosecutor in a Maryland courtroom, but it was not included in the indictment.

Cohen and his defense team asked a judge, who already had told prosecutors to be specific about the tape's contents, to listen to the tape and decide for himself. It was an unusual request, local defense lawyers say, because such decisions are usually left to jurors.

But given the impact of pretrial publicity on potential jurors, the lawyers said, it could be a step worth taking.

U.S. Magistrate Judge Mark A. Pizzo balked, ordering the tape returned to Cohen, effectively blocking its public release, even though it had been in a public file, which generally means it would have been open to public inspection. That prompted objections from lawyers representing newspapers and a TV station trying to obtain the tape.

Federal prosecutors, meanwhile, aren't talking.

The debate prompted some intriguing questions. What is on the tape? Who is telling the truth? And why shouldn't the public hear it?

"It's hard to know whom to believe -- it's obvious that one side is inaccurate," said George Tragos, a Clearwater lawyer and a former federal prosecutor.

Attorneys for the Aisenbergs declined to comment. The U.S. Attorney's Office was closed Monday for the Martin Luther King Jr. holiday, and no spokesman could be reached. Federal prosecutors typically refrain from commenting on pending cases.

The question of what one tape contains -- investigators recorded 214 tapes during three months of eavesdropping at the Aisenbergs' Brandon house -- will ultimately be decided by a jury, Tragos said.

In the meantime, a judge's perception of what's on a given tape might not be as important as the public's. People who will one day be jurors are exposed to every bit of pretrial maneuvering.

"Barry (Cohen) is very cognizant of ethical rules that say attorneys can't try their cases in the press," said Steve Crawford, a former federal prosecutor now in private practice in Tampa. "He knows that if he files a pleading in open court, it's fair game, and it can be just as good, if not better, than filing a press release."

Crawford suggested Cohen is responding to a federal system that lets prosecutors release most of the information about a pending criminal case.

"I've been appalled at what I've called press release indictments, which contain surplus language that does nothing other than inflame," Crawford said.

Prosecutors "stand back and say to defense lawyers that you can't say anything about the case other than your clients aren't guilty," Crawford said. "I've always thought that was grossly unfair."

The Aisenbergs are charged with lying to police about such things as their reactions to the news their daughter was missing, and what clothes they were wearing when they learned she was gone.

Yet the indictment quotes secretly recorded conversations that imply Steven Aisenberg harmed his daughter and Marlene Aisenberg helped cover it up.

While it's important to hash these issues out, lawyers said, things shouldn't get out of hand.

"Magistrate Pizzo has to make sure this doesn't become a circus, and that we don't have public discussion and debate over the tapes until the appropriate time, which is trial," Crawford said. "Judge Pizzo, somewhat conservatively, decided to keep the tape out of the public record."

Tragos said it is common in federal court for judges and lawyers to seal sensitive evidence. But Pizzo's decision last week brought protests from lawyers for the St. Petersburg Times, the Tampa Tribune and WFLA Channel 8, who filed unsuccessful motions to make the tape public.

"Ordinarily, such an exhibit becomes public information," said Tom McGowan of the St. Petersburg firm of Rahdert, Anderson, McGowan & Steele, which represents the Times on First Amendment issues. "The Aisenbergs know what's in there. The experts know. The transcript of the tape is reported in the motion. The only thing that is secret is the nuances, and the way things sound. "When you apply the First Amendment test, I don't see how any harm can be done, how justice can be stopped" by unsealing the tape, McGowan said.

published December 4, 1999


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TAMPA -- Federal prosecutors added an explosive twist to the baby Sabrina case in September when they said Steven Aisenberg had admitted to cocaine use on a tape secretly recorded by investigators.

Prosecutors made the announcement the same day they charged Aisenberg and his wife, Marlene, with lying about the disappearance of their 5-month-old daughter, Sabrina, from their Brandon home two years ago. The indictment strongly implied foul play by the couple.


Steven and Marlene Aisenberg are charged with lying about the disappearance of their daughter from their Brandon home.

This week, though, the Aisenbergs' attorneys filed a motion stating they can't find the cocaine comment on audiotapes provided by federal prosecutors. The defense lawyers say some conversations on the tapes are inaudible and unintelligible.

If the government can't provide a tape containing the comment, the lawyers want a judge to modify the conditions of the Aisenbergs' pretrial release bonds, which included a drug screen. In network television appearances, the Aisenbergs have denied wrongdoing in connection with their daughter's disappearance. They have also specifically denied using cocaine.

Besides seeking to loosen the conditions of the Aisenbergs' bond, the defense motion also fulfills lead defense attorney Barry Cohen's announced intention to put investigators' conduct on trial.

The defense motion, filed Thursday, recounts how a federal prosecutor informed a Maryland judge that the government had a taped statement of Steven Aisenberg admitting cocaine use. That comment was not reprinted in the indictment prosecutors filed against the Aisenbergs.

Yet, the motion states, there was no mention of a statement involving cocaine on either wiretap summaries or on selected tapes a federal prosecutor has identified as pertinent to the defense lawyers.

A spokesman for the U.S. Attorney's Office did not return calls seeking comment Friday.

One of the Aisenbergs' attorneys, Todd Foster, declined to say Friday if the defense team had listened to all 214 tapes the government recorded.

For now, the defense's motion appears to be moot. That's because on Wednesday, one day before it was filed, a judge rejected a related motion to modify the Aisenbergs' bond. Thursday's motion was filed as a supplement to the first motion.

Foster, the defense attorney, said Thursday's motion might be refiled when defense lawyers ask the judge to reconsider his decision.

The indictment charges the Aisenbergs with lying to investigators about details of the kidnapping they reported on Nov. 24, 1997 -- the morning they say their daughter was taken from their Brandon house.

The indictment quotes secretly recorded conversations between the couple, in which Marlene Aisenberg allegedly says their baby was "found dead because you did it," and her husband allegedly says, "We need to discuss the way that we can beat the charge." Prosecutors said they didn't have enough evidence to charge the Aisenbergs with murder.

The Aisenbergs now live with their two other children in a house owned by Steven Aisenberg's father in Maryland. Last month, in their original motion to modify conditions of their bonds, the Aisenbergs sought permission to rearrange financial liens on the house.

The house is used as security for Steven and Marlene Aisenberg's appearance bonds -- $25,000 each. Otherwise, it is free and clear of any debt.

To pay the couple's legal bills, the family wants to take out a $200,000 mortgage on the house, which they say was recently appraised for $370,000.

The lender wants to hold the first mortgage on the property, so the Aisenbergs are asking the government to make its bonds subordinate to the first loan.

U.S. Magistrate Judge Mark A. Pizzo denied that motion Wednesday. The Aisenbergs' attorneys filed Thursday's motion as a supplement to the original motion, unaware the judge had already denied it.

No trial date has been set.

A lawyer says it would take about 50 days to listen to all of the couple's conversations taped by authorities.
published November 5, 1999


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TAMPA -- Defense attorneys for Steven and Marlene Aisenberg are asking a judge for more time to review 214 audiotapes that investigators secretly made of the Aisenbergs talking inside their Brandon home, according to a court motion filed Thursday.

The volume of recorded conversations, along with the hundreds of pages of documents accumulated by prosecutors, will prevent defense attorneys from meeting prearranged deadlines, the motion said.

"If an attorney listened to all 214 tapes non-stop, for eight hours a day, it would take approximately 50 work days to review every recorded conversation," the motion said.

Prosecutors provided the tapes to the defense as a routine part of pretrial discovery. The tapes will not be made public until either prosecutors or defense attorneys use them as evidence in a motion or at trial.

The Aisenbergs reported the disappearance of their 5-month-old daughter, Sabrina, in November 1997, saying they believed a stranger had crept into their home and kidnapped the child. State and federal investigators soon suspected the Aisenbergs were involved in the disappearance and planted a listening device in their home.

The Aisenbergs appeared on a number of network news programs to state their innocence and plead for their daughter's return. She has never been found.

In September a federal grand jury indicted the couple on charges of lying to police when they made their kidnapping report. The indictment quoted excerpts from the recorded conversations suggesting Steven Aisenberg had caused his daughter's death and Marlene Aisenberg had helped cover it up.

A trial date has not been set.