[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
THE USE OF PROSECUTORIAL POWER IN THE INVESTIGATION OF JOSEPH GERSTEN
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JUNE 15, 2001
__________
Serial No. 107-27
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
U.S. GOVERNMENT PRINTING OFFICE
76-596 WASHINGTON : 2002
____________________________________________________________________________
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COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California PATSY T. MINK, Hawaii
JOHN L. MICA, Florida CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia ROD R. BLAGOJEVICH, Illinois
DAN MILLER, Florida DANNY K. DAVIS, Illinois
DOUG OSE, California JOHN F. TIERNEY, Massachusetts
RON LEWIS, Kentucky JIM TURNER, Texas
JO ANN DAVIS, Virginia THOMAS H. ALLEN, Maine
TODD RUSSELL PLATTS, Pennsylvania JANICE D. SCHAKOWSKY, Illinois
DAVE WELDON, Florida WM. LACY CLAY, Missouri
CHRIS CANNON, Utah ------ ------
ADAM H. PUTNAM, Florida ------ ------
C.L. ``BUTCH'' OTTER, Idaho ------
EDWARD L. SCHROCK, Virginia BERNARD SANDERS, Vermont
JOHN J. DUNCAN, Jr., Tennessee (Independent)
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
Robert A. Briggs, Chief Clerk
Phil Schiliro, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on June 15, 2001.................................... 1
Statement of:
Gregorie, Richard, assistant U.S. attorney and former
assistant State attorney, Miami-Dade County; Michael Band,
former assistant State attorney, Miami-Dade County; Mary
Cagle, assistant State Attorney, Miami-Dade County; and
Mike Osborn, retired Miami homicide detective.............. 12
Letters, statements, etc., submitted for the record by:
Band, Michael, former assistant State attorney, Miami-Dade
County, prepared statement of.............................. 54
Cagle, Mary, assistant State Attorney, Miami-Dade County,
prepared statement of...................................... 60
Gregorie, Richard, assistant U.S. attorney and former
assistant State attorney, Miami-Dade County, prepared
statement of............................................... 15
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut:
Exhibit 1................................................ 70
Exhibit 3................................................ 122
Exhibit 13............................................... 131
Exhibit 15............................................... 109
Exhibit 16............................................... 85
Exhibit 17............................................... 134
Prepared statement of.................................... 4
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, prepared statement of................. 9
Wilson, James C., chief counsel, Committee on Government
Reform:
Exhibit 3a............................................... 163
Exhibit 17............................................... 148
Exhibit 20............................................... 151
Exhibit 21............................................... 160
THE USE OF PROSECUTORIAL POWER IN THE INVESTIGATION OF JOSEPH GERSTEN
----------
FRIDAY, JUNE 15, 2001
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 11:05 a.m., in
room 2154, Rayburn House Office Building, Hon. Christopher
Shays (acting chairman of the subcommittee) presiding.
Present: Representatives Shays, Horn, and Waxman.
Staff present: Kevin Binger, staff director; James C.
Wilson, chief counsel; David A. Kass, deputy counsel and
parliamentarian; Mark Corallo, director of communications; M.
Scott Billingsley and Andrew Hollis, counsels; Sarah Anderson,
staff assistant; Robert A. Briggs, chief clerk; Robin Butler,
office manager; Michael Canty, legislative assistant; Josie
Duckett, deputy communications director; John Sare, deputy
chief clerk; Danleigh Halfast, assistant to chief counsel;
Corinne Zaccagnini, systems administrator; Phil Barnett,
minority chief counsel; Sarah Despres, minority counsel;
Michael Yeager, minority deputy chief counsel; Ellen Rayner,
minority chief clerk; and Jean Gosa and Earley Green, minority
assistant clerks.
Mr. Shays. Good morning. A quorum being present, the
Committee on Government Reform will come to order. I ask
unanimous consent that all Members' and witnesses' written
opening statements be included in the record and, without
objection, so ordered.
I ask unanimous consent that all articles, exhibits, and
extraneous or tabular material referred to to be included in
the record and, without objection, so ordered.
I ask unanimous consent that a set of exhibits regarding
the hearing be included in the record. Without objection, so
ordered.
I ask unanimous consent that a staff report regarding this
matter be included in the record and, without objection, so
ordered.
[Note.--The complete set of exhibits and the staff report
may be found at the end of this volume.]
Mr. Shays. I ask further unanimous consent that questioning
under this matter proceed under clause 2(j)(2) of House rule 11
and committee rule 14, in which the chairman and ranking
minority member allocate time to the members of the committee
as they deem appropriate for extended questioning, not to
exceed 60 minutes equally divided between minority and majority
and, without objection, so ordered.
I also ask unanimous consent that questioning in the matter
under consideration proceed under clause 2(j)(2) of House rule
11 and committee rule 14 in which the chairman and ranking
minority member allocate time to committee counsel as they deem
appropriate for extended questioning, not to exceed 60 minutes
divided equally between the majority and minority and, without
objection, so ordered.
I yield myself my time. Last month this committee heard
testimony from Joseph Salvati, a man convicted of a crime he
did not commit. In that case an innocent man went to prison for
30 years because FBI agents, prosecutors, and local law
enforcement officers suppressed exculpatory evidence in a
cynical conspiracy to protect a corrupt informant. His life and
the lives of his wife and children were destroyed by the very
forces of law and justice solemnly sworn to protect and serve.
Another case of alleged official misimprisonment brings us
here this morning. In March the committee staff issued a report
entitled, ``The Joseph Gersten Case: A Study of the Abuse of
Government Power.'' It describes a complex series of events in
south Florida, starting in 1992, during which prosecutorial
zeal to achieve a preordained conclusion appears to have
resulted in the suppression of obviously exculpatory facts.
The committee had hoped to conduct voluntary interviews
with two of today's witnesses, Mr. Gregorie and Mr. Band, but
they declined. Their lawyers informed us their clients would
only appear pursuant to subpoenas, so subpoenas were issued.
Still, despite the more formal forum, our purpose in seeking
their testimony remains the same: Amplify and clarify the
public record on this troubling case.
Bottom line is we're here today because of those subpoenas.
We know the FBI and prosecutors suspected that Joseph
Gersten had done something wrong. They received information
that he had been involved with prostitutes, had smoked crack
cocaine and had filed a false police report. They initiated an
investigation. We certainly don't have a problem with that.
But we all should have a problem with apparent failure to
follow all the relevant evidence discovered by that
investigation. When prosecutors fail to follow potentially
exculpatory evidence, there should be a reason. Today I
sincerely hope we will hear a plausible explanation why it was
ignored in this case.
The committee's investigation has uncovered questions that
should have been asked, questions that bring us here today: A
government witness was trying to frame Mr. Gersten for murder.
According to the FBI, this was one of the government's most
reliable witnesses. The government did not ask a single
question about why their witness was trying to frame Gersten
for a murder. It appears they didn't want to know the answer.
Why?
The FBI paid money to the witness who was trying to frame
Gersten for the murder, after the false allegation had been
made. Why would the FBI pay money to someone who was trying to
put an innocent man in the electric chair?
All government prosecutors and investigators have
maintained that they knew nothing about the false murder
allegation, notwithstanding evidence to the contrary. When the
committee asked an FBI agent why a government witness to an
alleged sex and drugs matter was trying to frame Gersten for
murder, the agent said he had never been told about the false
murder allegation. That's what he said. He said it, ``would
have been important information.'' He also said, ``I don't know
why we weren't given this information.'' Who knew about the
false murder allegation and when did they know it?
The man who was offered money by the government's witness
to make the false murder allegation came to the conclusion
that, ``the FBI is trying to set up the man, Gersten, for
something he didn't do.'' Why did he reach that conclusion and
why did the government never ask him why he had reached that
conclusion?
The man who was offered money to make the false murder
allegation, knew the exact amount involved 2 days before
records show the money being requested. How could he have known
that, and why did no one ask him why the FBI was prepared to
pay a witness who was trying to frame Gersten for a murder?
Someone in the Florida State attorney's office appears to
have attempted to cover up the fact there was a false murder
allegation. When the committee received documents about the
Gersten investigation, the report describing the false
allegation, which we did eventually obtain, was not provided.
Who was responsible and why was it so important to keep the
false murder allegation from coming to the attention of
Congress?
Almost every exculpatory statement or piece of evidence
appears to have been ignored by the government. Why? Why does
this case appear to be a predetermined conclusion in search of
proof, not a search for truth?
The Gersten case is not the Salvati case, and I want to
emphasize that. Nothing could be like the Salvati case. Gersten
was never indicted, never tried. He left the country. He didn't
spend 30 years in prison. But he did pay a price for what he
was only alleged to have done.
The plight of the Salvatis and Mr. Gersten gives us cause
to question presumptions long taken for granted about blind
justice and the power to prosecute. Anyone can be accused of a
crime. The government can tap telephones, record conversations,
obtain bank records and even, as in the Gersten investigation,
go so far as to get supermarket purchase records of the
suspect's fiancee. We must be sure the power to seize the
evidence is wielded objectively, with restraint, and with a
profound respect for rights of the accused.
I now recognize my very distinguished colleague Mr. Waxman,
the ranking member, for his opening statement.
[The prepared statement of Hon. Christopher Shays follows:]
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Mr. Waxman. Thank you very much, Mr. Chairman. In the
interest of time, I have a short statement, but I'd like to ask
unanimous consent to enter my full written statement into the
record.
Mr. Shays. Without objection.
Mr. Waxman. But I do want to make a few points about this
hearing and the case of Joseph Gersten. I believe it's
appropriate for Congress to conduct oversight in any case where
there is credible evidence of prosecutorial misconduct, but I
think, given the thousands of cases we could investigate, the
committee's focus on Mr. Gersten is especially odd.
This morning's hearing provides a window into one of the
most important powers that comes with being in the majority of
the House, the power to choose and set an agenda. There are
many cases of overzealous prosecutions. There are countless
cases worthy of examination, cases where innocent victims were
convicted of capital crimes and even sentenced to death. If the
committee wanted to investigate issues involving the State of
Florida, we could have looked at the voting irregularities in
the 2000 election. We should never be indifferent to any
evidence of misconduct by prosecutors, but I simply don't
understand how the obscure case of Joe Gersten merits an
exhaustive investigation by this committee.
It seems to me that the most important point is that Mr.
Gersten was never indicted by the State attorney's office. And
I want to repeat that. Mr. Gersten was never indicted. Had he
been indicted and prosecuted, the issue of whether he was given
all the information the State attorney's office had might be
relevant, but--and it's worth repeating again--he was never
charged. Instead, despite the fact that he had a grant of
immunity, Mr. Gersten chose to flee the country and defy a
court order compelling him to testify.
That's why the Florida Supreme Court has concluded that Mr.
Gersten's refusal to comply with the court order directly
interfered with the State attorney's criminal investigation.
That's a quote.
And that's why another Florida court has concluded that Mr.
Gersten is a fugitive from justice and not entitled to any
judicial relief.
That alone makes it odd that this committee is championing
Mr. Gersten's cause. But on top of that, we have to consider
the Gersten matter in the context of this committee's work on
the Marc Rich case. Just a few months ago we had a hearing
focused on President Clinton's Presidential pardon to Marc
Rich, and most Members, Republican and Democrat, took a dim
view of Mr. Rich's case precisely because he decided to resolve
his case by fleeing our country and avoiding prosecution.
Fleeing the country seemed to be the decisive factor against
Marc Rich.
This morning, it seems in the eyes of some of my
colleagues, fleeing the country is the decisive factor in
making Mr. Gersten a victim, not a criminal. If the committee
wants to highlight the problems of overzealous prosecutions,
there are countless cases worthy of examination and, as I said
before, the Gersten case is an odd choice by any measure for
our committee.
I appreciate the witnesses being here today. I know they've
been brought before this committee in order to get their
testimony on the record. I know this investigation has amounted
to thousands of dollars spent by the taxpayers, the time of
Members of the Congress and our staffs, the witnesses today and
their attorneys that they had to hire to represent them, the
cost they incurred to come here to Washington. All of this is
factored into expenditure of money, both private and public,
that may or may not produce a conclusion.
I thank all the witnesses for being here and I yield back
the balance of my time.
[The prepared statement of Hon. Henry A. Waxman follows:]
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Mr. Shays. I thank my colleague. We will now recognize our
panel and I will swear them in and we will begin questions.
We have Richard Gregorie, assistant U.S. attorney and
former assistant State attorney, Miami-Dade County; Michael
Band, former assistant State attorney, Miami-Dade County; Mary
Cagle, assistant State attorney, Miami-Dade County; and Michael
Osborn, retired Miami homicide detective. I would invite you to
stand and we'll swear you in. Raise your right hands, please.
[Witnesses sworn.]
Mr. Shays. Note for the record that all of our witnesses
have responded in the affirmative. I'm going to ask all of you
to read your statements in full and then we will proceed with
questions.
We'll start with you Mr. Gregorie.
STATEMENTS OF RICHARD GREGORIE, ASSISTANT U.S. ATTORNEY AND
FORMER ASSISTANT STATE ATTORNEY, MIAMI-DADE COUNTY; MICHAEL
BAND, FORMER ASSISTANT STATE ATTORNEY, MIAMI-DADE COUNTY; MARY
CAGLE, ASSISTANT STATE ATTORNEY, MIAMI-DADE COUNTY; AND MIKE
OSBORN, RETIRED MIAMI HOMICIDE DETECTIVE
Mr. Gregorie. Thank you, Mr. Chairman, members of the
committee. Thank you for having me here this morning. This is
my 30th anniversary of my graduation from Georgetown Law
School, and 26 of the following years after that, and little
more than that actually, I have spent prosecuting cases in the
Federal district and in the State court in Florida, and this is
the first time in that entire career anybody has ever
questioned my discretion in deciding not to prosecute someone.
I'm glad to be here to explain what happened in that case and
why I decided not to prosecute.
Mr. Gersten was a well-known public figure in Miami. He
calls the city manager of the city of Coral Gables on the night
of April 29th, not the police department but the city manager,
and asks for a policeman to come over, and says his car was
stolen from in front of his driveway. He also says some of the
materials that were in it were his personal belongings and they
were taken as well. There's no glass on the driveway, there's
no indication the car was broken into.
The next day, a local policeman, who unfortunately is now
dead, Mr. J.L. Garcia, Mr. Garcia informs the police through an
informant that there are some prostitutes and a pimp riding
around in a blue Mercedes Benz and he decides to stop that car.
He does.
I'm about to tell you something now which I probably will
repeat throughout this proceeding. That is, that in the car the
police officers found not only two prostitutes and a pimp, but
also Mr. Gersten's personal belongings, his briefcase, which
contained in it important legal papers as well as the photos of
a naked man. They also found his gun, which Mr. Gersten carried
with him. They also found a number of other personal
belongings. The prostitute indicated that they had taken Mr.
Gersten's wallet and his credit cards. The police were then
asked to survey the area and they were told that the
prostitutes had told him they had taken Mr. Gersten's gold
chain off his neck. They found that at a pawnshop. And they
said they had taken brand-new clothes that Mr. Gersten had just
bought, and they found those at a tailor shop, which they had
pawned. Why is this so significant?
This is significant because in the report that I've read
for this committee, it indicates they believe there was a
frame-up. It would be impossible for there to be a frame-up and
the prostitutes and pimp to have these goods. The only way that
could have happened was if these prostitutes were in Mr.
Gersten's neighborhood, assuming Mr. Gersten was telling the
truth, one of the most wealthy residential neighborhoods of all
of Miami, and, Mr. Chairman, you had to see these witnesses.
And I have to tell you the allegation is that they were
having crack and Mr. Gersten was using the services of a
prostitute, so the only witnesses to be available would be
prostitutes and crack addicts. They were exactly that. For
these people to be walking in Mr. Gersten's neighborhood of
Coral Gables is almost laughable, and for them to have had
access to Mr. Gersten's car, his keys, his wallet, his
briefcase, the naked pictures in the briefcase, Mr. Gersten's
clothes which we recovered, is almost impossible.
Because these witnesses were so bad, I took it upon myself
to find corroboration for what they were saying. That's why we
subpoenaed the grocery store records of his fiancee. We had to
establish the time period. We know from the Peter Kent clothing
store records, that Mr. Gersten was at the clothing store at
6:30. In order for him to have driven home, it would have taken
him at that time of night at least 40 minutes, so he couldn't
have gotten there until after 7 o'clock. By 8 o'clock his
housekeeper had arrived. When she arrived, Mr. Gersten's car
nor any sign of Mr. Gersten was in the house.
So he had arrived shortly after 7 and his car was stolen
and he was hiding upstairs, or he hadn't come home yet. The
housekeeper was there from 8 until 9, when she went shopping
with Mr. Gersten's fiancee. Mr. Gersten was nowhere in sight,
nor was his car. So that means, then, if his car came home
after that, came after 9, that he didn't get home and report
the car stolen until 10. So there's a 2-hour period, if Mr.
Gersten was telling the truth, when his car could have gotten
there and the prostitutes and the pimp could have meandered
down the most exclusive area of Coral Gables to steal his car
with all his goods in it. He would have had to leave his keys,
his wallet, his briefcase, the naked pictures, the clothes, his
gun, his commissioner's badge all in his car for somebody to
steal, rather than taking them into the house.
I tell juries when I argue to them that they should use
their common sense, not leave it at home. Common sense will
tell you this doesn't make any sense. Mr. Gersten's story
didn't make any sense. And it also told me that this couldn't
be a frame-up. There is no way that anybody could have known
that Mr. Gersten was going to be there that evening, because he
had two appointments. He was supposed to be at a chief of
police dinner and he was supposed to be at another function. He
didn't show up at either. He was not there. His fiancee Carla
wanted him to go to his interior decorator, he said he couldn't
go. So no one knew where he was that evening. To this day we
don't know. And when Mr. Band attempted to ask him those
questions he refused to answer, and it's the reason why he's
now a fugitive.
Congressman, I don't know what to tell you because when I
walked in here it was the first time in my life I've ever met
Detective Osborn. He introduced himself to me. I have never
talked to him before. I have been asked about a report he
wrote. I don't ever remember having seen that report. Now, it's
almost a decade ago and I have probably seen thousands of
police reports and agent reports over that period of time, but
that report wouldn't have been significant to me because I
already knew that Lisa McCann--the prostitutes were--exactly
what they did for a living, they sell their bodies. They were
prostitutes.
Their stories were not significant because they didn't have
a hold of time, they didn't have a hold of anything except the
facts. And the only reason that I followed up and investigated
this case was because they had Mr. Gersten's briefcase, his
gun, his badge, his clothes, his gold necklace off his neck.
They could not have gotten those without Mr. Gersten having
been where they said he was and them having robbed him, as we
believed they did.
I'm glad I investigated it. I used my prosecutorial
discretion and decided not to prosecute it because of the
character of those witnesses. We did everything according to
the law, and in the end Mr. Gersten was given immunity. He
couldn't have been prosecuted for what he said, and despite
that and despite a court order, he refused to testify; and on
top of that, he has litigated this in every court he could
possibly have gone to. Some of the finest judges in our State
and Federal system have said that we handled this case
properly, that he should have answered the questions and that
he must come in and answer those questions, and he refused to
do so and he fled.
Flight, Mr. Chairman and members of the committee, is a
sign of guilt. That presumption is given in instructions to
juries all the time.
I suggest to you that Mr. Salvati is a much different
story. He was here to testify before this committee. He didn't
flee. Mr. Gersten is in Australia, asking for you to find us as
abusing our prosecutorial authority when all we did was not
prosecute him. Thank you, Mr. Chairman.
Mr. Shays. Thank you, Mr. Gregorie.
[The prepared statement of Mr. Gregorie follows:]
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Mr. Shays. Mr. Band. Bring the mic a little closer to you,
if you would.
Mr. Band. Mr. Chairman, let me first thank the Chair for
this opportunity to visit Washington and address this committee
in person and answer questions directly and on the record
without your staff serving as a filter. As a former public
servant and as a citizen, I recognize the importance of having
the decisions and actions undertaken by government employees in
the exercise of their official powers scrutinized. Those who
have undertaken to serve the public should be held accountable
and responsible for their actions.
There is no higher calling than public service, nor is
there anything more insidious than governmental authorities who
abuse their power.
Prior to addressing the issue raised by the committee's
report, I will take a brief moment to put my public service
into context.
I served my community as a prosecutor in State and in
Federal court for approximately 20 years. During my service I
prosecuted cop killers and corrupt public officials, including
a chief of police, a sitting judge and police officers. I
brought to trial a high-profile child killer and tourist
killers whose actions almost destroyed south Florida's economy.
I have served the Florida bar as chair of the criminal law
section, a member of its rules committee and a chair of a bar
grievance committee. I've served the local bar as a member of
its board of directors, chair of its criminal law committee and
judicial poll committee. I have served my city as member of the
Mayor's Blue Ribbon Panel to Ensure Minority Participation in
Government and Government Contracting. And finally, I was
appointed by Florida's Governor to serve on the Judicial
Nominating Commission.
Let me turn to my own involvement with the matter at hand.
In late June 1992, I was requested by the Dade State attorney
to prosecute those responsible for the taking of Mr. Gersten's
vehicle. Parenthetically, this is about a decade old, and I'm
trying to use my best recollection. To that end, I contacted
William Richey, who I knew to be Mr. Gersten's attorney. I
explained to Mr. Richey that I was detailed to bring those
responsible for taking of that automobile to justice. I
inquired of Mr. Richey as to the availability of Mr. Gersten to
appear so that I might conduct a pretrial conference. Mr.
Richey responded that he would require a subpoena for Mr.
Gersten's appearance. Shortly after that conversation, at my
direction, on July 8, 1992, a subpoena was prepared for Mr.
Gersten with a return date of July 20, 1992. Thus began the
unheard of and indeed unprecedented protracted litigation
concerning that subpoena.
A brief history of the litigation: July 1992, a motion to
quash the subpoena was denied by Judge Phillip Knight.
In August 1992, a second motion to quash the subpoena was
denied by Judge Alan Schwartz.
In August 1992, a third motion to quash the subpoena was
denied by Judge Amy Dean.
A petition for cert was filed and denied by the Third
District Court of Appeal in December 1992.
A second petition for cert was filed and denied by the
Third District in March 1993.
An order of contempt was issued by Judge Dean on March 18,
1993.
An order of the Third District of Appeal--Third District
Court of Appeal on April 12, 1993, ordered Mr. Gersten released
from custody pending order of court.
In June 1993, the Third District Court of Appeal affirmed
Judge Dean's order. In July a mandate issued.
U.S. District Judge James Lawrence King entered an order
denying relief to Mr. Gersten on September 14, 1993.
U.S. District Judge Stanley Marcus entered an order denying
a stay for Mr. Gersten September 17, 1993.
Judge Joel Brown, upon review of the file and after
argument of counsel, issued a ``writ of bodily attachment'' for
Mr. Gersten, who apparently had fled the jurisdiction in
October 1993.
And, finally, the U.S. Court of Appeal for the 11th Circuit
affirmed Judge King's order and the U.S. Supreme Court denied
cert. That was in May 1995 and February 1996 respectively.
Mr. Gersten was aided by talented and resourceful counsel
who frustrated the best efforts of the State to take testimony
for over a year. During that year, individual judges--and I'll
submit both Federal judges were Republicans, one appointed by
President Nixon, the second appointed by President Reagan--but
individual judges in State and Federal court reviewed this
matter and consistently ruled against Mr. Gersten. Panels of
judges sitting in an appellate capacity in the State and
Federal systems affirmed the lower courts in denying Mr.
Gersten relief.
Contrary to the assertions of the right of Mr. Gersten--
that the rights of Mr. Gersten--contrary to the committee's
assertions, the ``rights'' of Mr. Gersten was given a full
airing by the court with the courts uniformly vindicating the
State's position. The committee in its report seems to suggest
they had a personal animus toward Mr. Gersten. Nothing could be
further from the truth. The best evidence is provided in the
sworn statement of Mr. Gersten, which is provided in the
documents here before me and before the committee. This
statement reflects the exchange I had between Mr. Gersten and
his attorneys. There is no rancor. There's no evidence of
mistrust or distrust. Indeed the statement reflects a collegial
exchange between myself and Mr. Gersten. He was accompanied by
three lawyers and his aide and was treated professionally,
courteously, and civilly. Indeed, in all my dealings with Mr.
Gersten he was treated with the utmost respect.
As to the comment I made concerning Mr. Gersten as reported
in a newspaper, let me say in retrospect it was a glib and
flippant remark, wholly inappropriate but perhaps
understandable as an expression of the frustration I felt over
a witness'--who was a lawyer and a public servant--deliberate
actions in derailing a prosecution.
The report insinuates that a group of prosecutors
overstepped the boundaries of fair play in pursuit of Mr.
Gersten. With all due respect to the committee, that argument
has been rejected by the courts. The report reflects Mr.
Gersten's and his apologists line that the State was out to get
him. Mr. Gersten reported a crime. The perpetrators of that
crime deserved to be brought before the bar of justice. The
State's efforts in that regard were stymied by Mr. Gersten.
Every court who reviewed this matter without hesitation or
equivocation upheld the State's position. And while I and
others now appear before you--after the issuance of the
report--I stand ready to respond to your questions. Though not
to recognize the irony of Mr. Gersten's continued absence and
wonder whether the committee would be any successful than I in
questioning Mr. Gersten and determining Mr. Gersten's
whereabouts and explanation of his actions and the events of
April 29, 1992--is a puzzlement.
Thank you, Mr. Chairman.
Mr. Shays. Thank you, Mr. Band.
[The prepared statement of Mr. Band follows:]
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Mr. Shays. Ms. Cagle. Move the mic a little closer to you
as well.
Ms. Cagle. Thank you, Mr. Chairman and members of the
Committee on Government Reform. My name is Mary Cagle. I've
been a prosecutor in the State attorney's office in the 11th
Judicial Circuit of Florida since 1981. In June 1984, I joined
the Public Corruption Unit of that office. In May 1990 I was
promoted to the division chief of that unit, and in June 1993 I
was promoted to deputy chief of special prosecutions. That is
the position that I currently hold. I have spent the majority
of my career investigating and prosecuting abuses of government
power.
Because of this experience, I was appointed by Governor
Bush in 1999 to sit on a Public Corruptions Study Commission to
draft legislation regarding public corruption issues. I take
seriously the power entrusted in me by the people of the State
of Florida, and I'm truly committed to using that power to both
protect the innocent and to prosecute the guilty.
With all due respect to the committee, its report was
compiled without giving any of the prosecutors involved an
opportunity to address the committee's concerns. I appreciate
being given the opportunity to respond at this time, and my
hope and expectation is that with a full discussion regarding
the facts and circumstances of the investigation, the committee
will conclude that there was in fact no abuse of government
power in this matter.
Our sole motivation was to conduct a fair investigation
into the allegations. We did so by following the leads where
they took us in attempting to corroborate the testimony of
those involved. At the end of the day, there existed no
reasonable probability of a conviction, and thus Mr. Gersten
was never charged with any crime.
During the Gersten investigation in April and May 1992, I
was the supervisor of Dick Gregorie, who was a prosecutor in
the corruption unit. I was kept apprised of the investigation
and have some recollection of events and meetings. However, I
was not involved in the day-to-day investigation, and
consequently was never intimately familiar with the
investigative file.
The staff report focuses on Mike Osborn's police report
which detailed a statement made by a juvenile alleging and
immediately recanting an accusation that Gersten was involved
in a murder.
In his recantation, the juvenile claimed that Lisa McCann,
one of the prostitutes who was a witness against Gersten in the
false police report investigation, offered him money to falsely
accuse Gersten of murder. Had Gersten been charged with a
crime, this information would have been provided to the
defense. Gersten was never charged. A prosecutor's obligation
to produce exculpatory evidence applies to charged cases.
During an investigation exculpatory evidence is rarely given to
the subject. There is a policy of confidentiality surrounding
an investigation to protect both witnesses and subjects. At no
time during the investigative stage would any of the
prosecutors involved have even considered parceling out to the
subject exculpatory information.
This does not mean that the information regarding Lisa
McCann's attempt to coerce the juvenile into giving false
testimony was ignored by investigators. From the very beginning
of the investigation the credibility of the witnesses was an
issue. Consequently, the investigation focused on whether or
not there existed corroboration to the rendition of events
given by the initial four witnesses. Lisa McCann's attempt at
coercing the juvenile to give false testimony would have been
just one more problem with her, credibility problems that we
already knew about.
The staff report questions why this information was
withheld from the Florida bar and the foreign authorities. When
questioned, neither I nor anyone else involved in the
investigation had any recollection of the reference. Only Mike
Osborn, the city of Miami homicide investigator, recalled this
aspect of the case. Clearly that was because Detective Osborn's
focus was the murder investigation and his only involvement in
the Gersten investigation was the juvenile's statement. No one
at the State attorney's office intentionally withheld this
information from anyone.
The staff report includes the following statement, ``The
Osborn police report was part of the State Attorney's Gersten
case file. The State Attorney's Office made the Osborn document
available to the public for a short period and then apparently
removed it. When Congress received all documents relating to
the Gersten case from the State Attorney's Office, the
information was suspiciously absent.''
I take exception to the insinuation that the State
attorney's office removed this document from the files and
purposefully withheld it from Congress. This did not occur. As
the report itself indicates, ``A copy of what appears to be a
file folder was produced to the committee with the name MPD
Osborn on it. Also included in the State Attorney's Office
production to the committee are three documents that apparently
refer to the Osborn report of investigation.''
Clearly there existed numerous documents in the files that
were produced for Congress that made reference to Mike Osborn's
report. One of the documents contained a synopsis of the very
information that was contained in Osborn's report. Certainly if
someone had intentionally tried to hide the report, the file
folder marked MPD Osborn would have been removed. I do not
believe that anyone at the State attorney's office
intentionally removed the Osborn report from the file. I do not
know why the Osborn document was not in the file. However, I
can state with certainty that neither I nor anyone under my
direction removed it. I have only addressed the portions of the
report that relate directly to my involvement in this matter. I
have addressed them more fully in my written statement which
has been provided.
Since I was Mr. Gregorie's supervisor at the time of the
investigation, I was indirectly responsible for the
investigation. We conducted an honest and thorough
investigation. We were looking for the truth. Hopefully at the
conclusion of the questioning, the committee will have a
complete picture of what occurred during the investigation. I
respect your right to question government employees regarding
their actions and I will attempt to answer any and all of your
questions to the best of my ability.
Mr. Shays. Thank you, Ms. Cagle.
[The prepared statement of Ms. Cagle follows:]
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Mr. Shays. Mr. Osborn.
Mr. Osborn. I don't have any prepared statement. I'm just
here to answer your questions.
Mr. Shays. Let me start my round of questioning. Mr.
Gregorie, you're here because you refused to answer questions
by the staff in Miami, and you basically requested that we do
it by subpoenas; is that correct?
Mr. Gregorie. The problem was I was called on the telephone
and read this committee's staff report before anybody ever
talked to me.
Mr. Shays. That's not an answer to my question.
Mr. Gregorie. Yes, it is. Excuse me, Congressman.
Mr. Shays. Mr. Gregorie, we are going to have some real
rules here and I'm going to be very, very fair. I want you to
know something. I don't know how this hearing is going to turn
out. I have no idea. I don't know ultimately if I'm going to
have tremendous sympathy for your position or are going to find
that you tend to not answer my questions, and then I'm going to
become very suspicious and we can play it any way you want.
Mine is just a simple issue of fact. I will allow you after
you answer the question, to elaborate, I promise you that,
because I'm willing to stay here all day long. So I promise you
that and I am willing to have you tell me if you think I'm out
of line.
But the bottom line is I just want to know the following,
because I'm not thrilled to be here today. And I just want to
know if I'm here because my staff made me be here or I'm here
because we had to subpoena you.
The question I'll ask, again, is were you willing to
voluntarily answer questions by our staff without a subpoena?
Mr. Gregorie. Absolutely.
Mr. Shays. So the allegation that we had to subpoena you is
false.
Mr. Gregorie. No. What happened was, I was informed that
this committee wished to speak to me and I was informed of that
after a report had already been written which indicated that
there was wrongdoing, without anyone having spoken to me. I
then contacted someone who knows the system up here, lawyers
who deal with Senate and Congress Judiciary Committees, and
they told me, Dick, you shouldn't go in and answer questions
where a part of your answer may be taken--you may not be able
to have your full story told. Make sure that you go before the
committee, where there are rules, where everyone will be there
and where the public will be able to hear and see all that is
said to you and all that you answer.
Mr. Shays. So the answer is yes and no. I'm still going to
have to pursue it. There wasn't going to be a full transcript
because we had made arrangements with the Justice Department to
provide a full transcript, and we were going to ask your
permission to do that and did that. So I just need to know if
in fact you're here today because we needed to subpoena you.
Would you have responded voluntarily to the questions of the
staff down in Miami under a full transcript?
Mr. Gregorie. I would have if the committee had not already
written a report arriving at their own conclusions before I was
contacted.
Mr. Shays. OK. The staff wrote a report, and that is
correct. So your testimony is because the staff wrote a report,
you are not willing to respond to questions without a subpoena
and that was your decision, is that correct? I just want to
know the truth, Mr. Gregorie, and we can spend all the time on
you, and I'll take another 30 minutes later, and we'll go back
and forth. This is the silly stuff I just want to know.
Mr. Gregorie. The answer is yes.
Mr. Shays. The answer is yes, you required us to have a
subpoena to bring you here.
Mr. Gregorie. Yes, that's correct. I wanted the rules to be
in place so that I could make sure that the rules were being
followed in this committee.
Mr. Shays. The bottom line is you refused to answer
questions voluntarily with the staff, in spite of the fact that
they would have a transcript, and that could have happened and
I want the record to show that, and that is accurate. Your
attorney seems to nod his head behind you and you seem to be
shaking your head, but you're the one who's under oath, you're
the one who's before this committee.
Mr. Gregorie. My answer is because the committee had
already written a report.
Mr. Shays. The committee staff.
Mr. Gregorie. The committee staff. They--well, they didn't
say the committee staff. If you read the report that was
written, there are seven places in that report that says the
committee finds and the committee didn't find. What the report
says is not really accurate, because it says the committee
finds. The committee didn't have a hearing. That's why I wanted
a hearing where all the rules would be in place.
Mr. Shays. Mr. Gregorie.
Mr. Gregorie. Yes.
Mr. Shays. The bottom line is you wanted this hearing.
Mr. Gregorie. I wanted the rules in place, yes.
Mr. Shays. No, no. The bottom line is you wanted this
hearing.
Mr. Gregorie. Yes, sir, I did.
Mr. Shays. And so we are here because you wanted to be
here.
Mr. Gregorie. Yes, sir.
Mr. Shays. That is the bottom line to this question.
Mr. Gregorie. I agree with you 100 percent.
Mr. Shays. So we are not going to complain about you being
up here because, bottom line, you wanted to be up here.
Now we can go--use all this time to just basically
establish fact. That may be significant; it may not be
significant. I just want to know. And what it's telling me is
it's going to be a very interesting task to have you answer a
question clearly.
Mr. Band, would you have been willing to answer questions
by the staff under oath, under a full transcript--excuse me,
not even under oath, just to respond to the questions?
Mr. Band. My answer--and I don't mean to be any more
difficult than Mr. Gregorie was with the Chair--it's a simple
question. It is a somewhat convoluted answer. Had counsel for
the committee contacted me some 6 months ago, I believe I would
have happily met with him on or off the record. I was not
contacted until after the report was issued. I believed the
report made insinuations which were unfair and I felt, not
knowing the system, not having the experience of Mr. Gregorie,
that given the filter of staff, I'd much rather address my
comments--and in consultation with a lawyer I wound up hiring,
he suggested that we go the route of the subpoena.
Now I tell you, and I don't know if this was communicated
to you, it was my feeling that had Mr. Wilson traveled to Miami
and took our statements under oath with a transcript, and that
would have ended this matter then and there, I would have
happily have answered his questions. But apparently staff was
unwilling to guarantee that it would not end there, that we
might be called before the full committee.
Mr. Shays. Well, they couldn't guarantee that because it's
the decision of the full committee.
Mr. Band. Again----
Mr. Shays. So the bottom line to your response is that
given that there was a staff report on this, which you had an
opportunity to see and therefore have an opportunity to respond
to, you decided that you wanted to be subpoenaed and to come
before the committee.
Mr. Band. That's correct.
Mr. Shays. OK.
OK. Ms. Cagle, you're here because you basically supervised
Mr. Gregorie and Mr. Band; is that correct?
Ms. Cagle. I never supervised Mr. Band, but I was Dick
Gregorie's supervisor when he was in the corruption unit at the
State attorney's office.
Mr. Shays. Let me proceed with the questioning. This deals
with the Pearce interview. Committee staff obtained an
interview of Wayne Pearce just a few weeks ago. The interview
was conducted May 1, 1992, 2 days after the alleged Joseph
Gersten sex and drugs episode occurred.
This document is exhibit 1. On page 12 there is an
interesting exchange. Now I'm assuming that every one of you
has this, is that correct, and it's exhibit 1. On page 12
there, this exchange goes.
Question: ``Okay. As far as you know, that guy''--and we're
putting in Joseph Gersten--``has nothing to do with
Champaign?''--and who is the murder victim.
Answer: ``No. She know the man, Gersten Rich. That's why
she''--this is the government witness--``Lisa McCann want for
rob the man. Like she going--FBI man going to pay her $400 to
call the man. Then the FBI trying to set up the man for
something he didn't do and all she want to do was to get the
money.''
Question: ``And the whole thing is a lie?''
Answer: ``Yeah. The whole thing is a lie that man didn't do
nothing.''
[Exhibit 1 follows:]
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Mr. Shays. Now, let's look at Exhibit 16. This is an
excerpt from the exchange I just read, ``Then the FBI trying to
set up the man for something he didn't do.''
Now let's put the information from the Pearce statement in
order. A person makes an allegation against Gersten that could
have put him in the electric chair. That person recants after
the inconsistencies in his testimony are pointed out to him. He
says his story is a lie. He explains that he told the story
because he was offered money to tell the story. The person that
offered him the money to make the false murder allegation was
one of the main witnesses against Gersten in the sex and drugs
scandal being investigated by the FBI and the State's
attorney's office. He clearly states, ``The FBI trying to set
up the man for something he didn't do.''
Now, given all of these facts, don't you think a fair-
minded investigator would ask why his or her own witness was
trying to frame the target of the investigation for murder? Mr.
Gregorie.
[Exhibit 16 follows:]
[GRAPHIC] [TIFF OMITTED] 76596.059
Mr. Gregorie. I have never seen this statement. I did not
know who Wayne Pearce was, and I don't remember anybody ever
telling me about it. But having looked at it now, 10 years
later, it still wouldn't have changed my mind one bit. This is
a 15-year-old who was hanging around with crack addicts and
prostitutes on the street after we had done a canvass of the
community. The police had gone out and bought back the gold
chain from the jeweler or from the pawnshop. They had gone and
got the clothes out of the shop where they had kept the
clothes. There was money being given to these people to get
these items back. There were police officers canvassing, and we
must have had somewhere between seven or eight different
prostitutes who came in and claimed to have had sex with Joe
Gersten, some of which might have been true, some might not,
none of which contributed to our investigation--with our
investigation, which was to determine where was Joe Gersten
during that small 2-hour period between 7 and 8 or between 9
and 10, and was it true that his car was in front of his
driveway or was it at the prostitute's house.
Mr. Shays. Let me understand. And the whole basic reason
why we're investigating this man is because he made a false
charge?
Mr. Gregorie. The investigation was a public official who
filed a police report which stated that his car was stolen in
front of his driveway.
Mr. Shays. Right. So the bottom line to this whole
incredible investigation is that he said his car was stolen and
there's a question whether you think his car was stolen or not.
Correct?
Mr. Gregorie. Well, that and whether or not he was at a
crack house having sex and smoking crack and buying crack
cocaine from addicts down on Biscayne Boulevard.
Mr. Shays. But the bottom line is what triggered this whole
thing was giving a false statement.
Mr. Gregorie. That's correct.
Mr. Shays. OK. And we have this young man giving a false
statement.
Mr. Gregorie. This young man corrected his false statement
within 20 minutes of the time he gave it.
Mr. Shays. Right. Which is not entirely true. I mean, let
me ask you, how do you know that?
Mr. Gregorie. Because I have been given a copy of the
statement.
Mr. Shays. Yeah, but I don't understand; you don't know
when he made the statement earlier.
Mr. Gregorie. Testimony time I was given on May 7th, Mary
Cagle was mailed by the people in Australia a copy of this
statement. And Mary Cagle said to me, do you know about it and
showed me a copy of it. I have a copy in my bag here.
Mr. Shays. The bottom line is we're investigating a man who
gave a false statement, who is a public official.
Mr. Gregorie. That's correct.
Mr. Shays. Who is alleged by prostitutes and others--and,
frankly, they may be true--of prostitution and crack cocaine
involvement. And so you're investigating, but it was triggered
by the whole issue--and I want to just have this affirmed--it
was triggered by his saying his car was stolen, and you
believed that may have been incorrect.
Mr. Gregorie. I had two conflicting stories. I had Mr.
Gersten's statement that it was stolen from the front of his
driveway, and I had four people on Biscayne Boulevard saying it
was stolen from in front of a crack house where he was smoking
crack and having sex.
Mr. Shays. By reputable people making those allegations.
Mr. Gregorie. No, they were four people who were
unreputable people. However, they had his car, his wallet, his
credit cards, his gun, his badge, his briefcase, and the
clothes he had just bought at 6:30 at a clothing store.
Mr. Shays. Yeah, right.
Mr. Gregorie. That corroboration, together with the fact
that clothing store that he was at at 6:30, is a mere 3-minute
ride from the place where he was supposedly having sex and
drugs, led me to believe that Mr. Gersten was not telling us
the truth.
Mr. Shays. Mr. Band.
Mr. Band. This is the first time I have had an opportunity
to look at this excerpt, I guess, of Mr. Pearce's statement. My
side of the investigation, my side of the wall, had nothing to
do with Mr. Pearce, with Ms. McCann. This was not relevant to
me. My task was to investigate the individuals responsible for
the taking of Mr. Gersten's car. My object in that was to get a
statement from the victim, Mr. Gersten, so I could pursue that
case. This had nothing to do with my investigation and I was
completely--well this is the first time I have seen Mr.
Pearce's statement.
Mr. Shays. So the bottom line is this is the first time
you've seen it. Given that you have seen it, I want you to
react to it. What does it tell you?
Mr. Band. It's not surprising to me in the sense that--and
I'm sure Mr. Osborn will confirm this--I handled literally
hundreds if not thousands of homicide and other investigations.
The suggestion that a witness comes in there initially and
tells story A, retracts it and tells story B, and even retracts
it and tells story C is not surprising to me and is of no
moment because, without corroboration, it had very little if
any value, and certainly to me in my side of the investigation,
this was of no moment and of no value.
Mr. Shays. Ms. Cagle.
Ms. Cagle. I think it's important to put it into context,
because I can understand, like when I read your report, it's
like the focus is the Osborn report there. And even in your
comments, you're talking about a witness who made a murder
allegation, he was looking at the electric chair. From our
perspective, there was no murder investigation ever as it
related to Joe Gersten. It just didn't exist.
Mr. Shays. Doesn't this speak, though, ultimately to the
veracity of the witnesses?
Ms. Cagle. Absolutely.
Mr. Shays. OK. Sure does.
Ms. Cagle. No. I think that's the issue, you know, but as
far as him looking at the electric chair or anything like that,
I mean you folks I think must wonder why none of us remember,
you know, Gersten and a murder investigation. You know, you've
been through all of the documents and you know Joe Rosenblatt,
an assistant in our office, goes to Australia and he says to
us, what do you know about Joe Gersten and a murder
investigation? And we say, nothing.
And the reason for that, 10 years later we didn't remember
anything about Joe Gersten and a murder. The only relevance it
has is to Lisa McCann's credibility. And I guess the point,
from our point of view, was Lisa McCann was one of four people
who told this initial--or made these initial allegations
against Gersten, and Lisa McCann had a rap sheet that was
probably, you know, 20 pages long. She was an incredible
witness. But her statements taken together with the statements
of the other three people initially, and then as Mr. Gregorie
points out all of the--I mean, our job and our sole focus from
the very beginning was, we get this allegation and we take the
testimony of these people, and we begin doing what we do in
every case as prosecutors.
We begin trying to corroborate what they said. And in this
particular case, right from the beginning, there actually was a
lot of corroboration to what these four people said, even
though, as your report correctly points out, there were
inconsistencies in their rendition of events. But there were
many things from the statement of the maid, Gersten's maid to
his----
Mr. Shays. I mean, Ms. Cagle, you're going on and on.
Really, I'm happy to have you go on, but you're going to have
an opportunity to respond to a lot of the things that you're
starting to ask. The bottom line is, we had a 15-year-old
individual who basically accused Gersten of committing a
murder. He was interviewed, and he was then cross-examined
again, reinterviewed, and then he starts to bring the FBI into
this. And it is kind of curious that didn't seem to catch
anybody's fancy.
If you were going to conduct an investigation that relied,
in part, on the testimony of the person who was trying to frame
Gersten for murder, don't you think it is a matter of
fundamental fairness to look into this matter? And I'm asking
you, Mr. Gregorie.
Mr. Gregorie. I'm sorry. Sir, could you repeat that?
Mr. Shays. Sure can. If you were going to conduct an
investigation that relied in part on the testimony of the
person who was trying to frame Gersten for murder, don't you
think it is a matter of fundamental fairness to look into this
matter?
Mr. Gregorie. Well, first I would have had to know about it
and I don't remember ever being told about it. This is the
first time that I had seen this, May 7th of this year.
Mr. Shays. No. I understand and you will not have to keep
saying that again. I believe when you have said that, and I
believe you're saying it under oath. So it's done. The question
is, don't you think as a matter of fairness that this should be
looked into and should have been looked into?
Mr. Gregorie. No, because, first of all--I'm sorry.
Mr. Shays. No. Go on. Go on.
Mr. Gregorie. I didn't mean to interrupt you, sir.
Mr. Shays. No. That's all right.
Mr. Gregorie. No. Because first of all, the person making
the statement, the 15-year-old, had already admitted to being a
liar. The allegation that there was money coming from the FBI,
there had been no money given yet so far. From what I can see
from the statement, nobody gave anybody any money. The FBI had
nothing to do with my investigation. I never saw an FBI agent.
No FBI agent ever sat in with me on any part of the
investigation. I never had anything to do with the FBI in this
case.
So that it's clear to you--and I think you need to
understand this was a State investigation. The FBI was called
in, because in Miami Dade County, if a politician is being
investigated, the local police don't like to be solely involved
in the investigation. They might end up on the night shift
somewhere in the most desolate part of south Florida. So they
usually call the FBI for assistance. The FBI was called in for
assistance, as I understand it. I never talked to an FBI agent.
No FBI agent was present at any sworn statement I took. No FBI
agent ever consulted with me on how this investigation ought to
take place. So as far as I know, the FBI had absolutely nothing
to do with my investigation, and I would have had no reason to
believe that the FBI was doing anything in this case.
Mr. Shays. Mr. Band, do you think it's a matter of
fundamental fairness that if you have an individual accuse your
subject of your investigation of murder and he doesn't
voluntarily, until confronted, acknowledge that he was lying,
points out that he was--that the FBI was trying to get this
man, don't you think he'd just want to find out a little bit
more?
Mr. Band. Well, again, Mr. Gersten was not the focus of my
investigation. As a general principle and as a prosecutor of
long standing, it is clear we want to get ultimately to the
truth and test the veracity of individual witnesses. It, in
effect, was done and accomplished by Mr. Osborne that day. Mr.
Osborne spoke to him a few hours later or a few moments later.
I'm not sure which. He recanted. It speaks volumes about Mr.
Pierce's testimony. The next logical step would be to approach
Ms. McCann and weigh her interest, if you will, in why she put
Mr. Pierce up to this.
Now, the question is, what value does Ms. McCann have, and
as Mr. Gregorie points out, we know who she was. She was a
disreputable individual who practiced a profession that
presumably we all understand as not one of liking, one who will
sell things, will virtually do anything. That aside, how does
her testimony compare with others? Is it corroborated? Is it
not corroborated? So----
Mr. Shays. From what I can gather, if you were aware of
this, you would have been a bit curious and would have wanted
to check into this?
Mr. Band. If that was my side of the investigation, if you
will, if I planned to use Lisa McCann as a witness, obviously
it would be of importance, because I know that later on, had I
made a decision to charge an individual, my obligations under
Brady would be to forward that information.
Mr. Shays. So the answer is yes?
Mr. Band. I guess the answer is yes.
Mr. Shays. Ms. Cagle, should you--are you at least a bit
curious about--did you have knowledge--again, I'm--the answers
have been so long, I have to kind of just get focused again
here. Mr. Gregorie and Mr. Band have both said that they did
not know about this interview, did not know about this murder
allegation. Did you know about the murder allegation?
Ms. Cagle. When I read Mike Osborn's report that was faxed
to me by the lawyers in Australia, it's clear from reading that
report and I----
Mr. Shays. So you didn't know about that till recently?
Ms. Cagle. No. My testimony clearly would be that I have no
reason to disbelieve anything in Mike Osborn's report, but----
Mr. Shays. Are you saying that you did not--you were not
told about this murder allegation?
Ms. Cagle. Mike----
Mr. Shays. At the time of the investigation?
Ms. Cagle. Mike Osborn's report recites that he made me
aware of that at the time the investigation was going on, and I
have absolutely no reason to disbelieve that Mike did that. All
I'm saying is 10 years later----
Mr. Shays. Right.
Ms. Cagle [continuing]. I didn't have a recollection of it.
Mr. Shays. But it's clear that it didn't even make you
curious, because you would have remembered it? In other words,
when it was presented to you, it was something that didn't even
catch your interest in.
Ms. Cagle. I can't really tell you whether 10 years later
it caught my interest at the time or not. I believe when Mike
says he made me aware of it, it certainly would have been one
more thing that made us think Lisa McCann was not credible.
Mr. Shays. You see, the thing is that when you are
investigating, in this case a public official, and you bring in
an FBI agent, it's not plausible to me to have any of you
suggest this is just any case. I believe you have lots of
cases--but this wasn't any case. You know why? I even knew
about the case being up here, because it was a sensationalized
case that was discussed here and around the country. He was a
prominent public official. I think he was running potentially
for mayor of Dade County. One of the extraordinary things about
the transcript of the Pierce statement, at least to me, is that
Pierce told Detective Osborn that the FBI was going to pay Lisa
McCann $400. Look again at page 12. It says, FBI man going to
pay her $400 to call the man. When we interviewed Supervisor
Special Agent Michael Bonner about this, he said he only
considered paying McCann money after Gersten's car was stopped,
and the car thieves were brought in for questioning. It is
important to go back and revisit the chronology of what
happened.
At about 1:15 on April 30, 1992, the three thieves were
taken into custody. According to Bonner, it was only after this
that he thought about paying McCann. At 6 p.m. the next day,
Pierce was in police custody. Between 1:15 and 6 p.m. the next
day, the FBI decided to pay McCann $400, communicated this fact
to her, and she told Pierce. Because McCann was not brought in
until just before Pierce was brought in, it seems likely that
McCann was offered money before she was interviewed.
Do any of you have any information about McCann being
offered $400? Mr. Gregorie.
Mr. Gregorie. No, sir. No one----
Mr. Shays. Mr. Band.
Mr. Band. No.
Mr. Shays. Ms. Cagle.
Ms. Cagle. No.
Mr. Shays. Do you think it odd that there are no records to
the contact when the FBI offered McCann money? Mr. Gregorie.
Mr. Gregorie. I have no way of knowing what the FBI did.
Mr. Shays. Mr. Band.
Mr. Band. I have no clue as to the FBI's----
Mr. Shays. Ms. Cagle.
Ms. Cagle. No.
Mr. Band [continuing]. Procedure.
Mr. Shays. Is this something that in retrospect should have
been checked out?
Mr. Gregorie. Well, since we didn't know that any money was
offered or given, I don't know how we could have checked it
out.
Mr. Shays. Should it have been checked out if you knew?
Mr. Gregorie. Oh, if somebody told me they were giving a
witness money, absolutely I would have wanted to know it.
Mr. Shays. Mr. Band.
Mr. Band. I concur.
Mr. Shays. Ms. Cagle.
Ms. Cagle. If we had charged the case, it's something that
should have gone out in discovery, so we would have needed to
know.
Mr. Shays. You know, when we started looking at this, we
began to say, gosh, there is something kind of interesting
going on here. You didn't know about the $400, and that's what
your testimony is, but evidently $400 was making its way to a
witness, and we want to know why.
Mr. Gregorie. Mr. Chairman, may I add something?
Mr. Shays. Yeah.
Mr. Gregorie. I do know that because these were crack
addicts and prostitutes, we attempted to get them off the
street while we were going to take their testimony. We wanted
to try to make sure that their heads were clear, that they
weren't on crack, that they weren't being used, and I know that
we did put them in a hotel overnight, and we paid for it. My
instructions to our investigators in the State attorney's
office--now, the FBI wasn't there, we didn't talk to them--was
to make sure that they were put up for a night, fed, and make
sure that they didn't get any crack cocaine, and no money was
to be given to them whatsoever. Our investigators paid for
whatever bills there were. So I do know that occurred.
Mr. Shays. OK. Do any of you know when Special Agent Bonner
actually requisitioned the $400 to pay McCann?
Mr. Gregorie. I never talked to the FBI. So I have no idea
what they did.
Mr. Shays. Mr. Band.
Mr. Band. No clue.
Mr. Shays. Ms. Cagle.
Ms. Cagle. No.
Mr. Shays. Does it strike you as curious that the man who
made the false murder allegation against Gersten knew about a
$400 payment to the woman who was putting him up to the false
testimony and that he knew about it 2 days before the money was
actually requested?
Mr. Gregorie.
Mr. Gregorie. Again, I don't know that the FBI gave anybody
any money.
Mr. Shays. No. But I asked you does it strike you as
strange?
Mr. Gregorie. I'm sorry. I----
Mr. Shays. Does it strike you as strange that the gentleman
knew, even before the money was given, that she was getting
$400?
Mr. Gregorie. I don't know what was told her or what she
told him. I have no idea.
Mr. Shays. I know, but if, in fact, it was true that he
said that she was going to get $400 and that's what he did say,
and in fact that he knew 2 days before the money was actually
requisitioned and paid, doesn't that strike you as curious?
Mr. Gregorie. Not under the circumstances in this case.
Again, as I say to you, we had been on the street attempting to
buy back the items that had been sold by the prostitutes, the
witnesses had been talked to----
Mr. Shays. No. I didn't ask whether it was strange about
the $400. We've already covered that. I asked if it's kind of
strange that Pierce knew about the $400 before it was actually
requisitioned.
Mr. Gregorie. These are street hustlers, Congressman. They
look for money anywhere they can get it. This man thought----
Mr. Shays. I didn't ask whether he was looking for money. I
asked this question. I asked the question of whether it was
strange that he knew 2 days before she got the money that she
was going to get $400. That's what I asked.
Mr. Gregorie. What I'm answering to you is, that knowing a
street hustler like this young man, if he believed that there
was money to be had, either from the police or some law
enforcement authority, I'm not surprised at all he thought he
could get money by coming in and telling the police the story.
Mr. Shays. This wasn't money going to him.
Mr. Gregorie. Well, I don't know where he thought the money
was going, because I don't know anything about it. We're
dealing in speculations.
Mr. Shays. Listen to the questions. I want you to listen a
little better, please. I asked the question, he was saying that
McCann was going to get $400 from the FBI. Correct? Isn't that
what this testimony says?
Mr. Gregorie. If that is what is in here, if that's what he
says, I still--you're asking me----
Mr. Shays. That's the question I'm asking. The question I'm
asking is do you find it strange that he would have known 2
days before that the person who was setting him up to say that
Gersten had committed the crime, McCann, actually was going to
get $400? He knew 2 days before she actually got the money. You
can answer yes or no. It's not a difficult question.
Mr. Gregorie. It's speculation, Congressman, and I can't
speculate without a lot more facts than you're giving me.
Mr. Shays. No. Well--so we'll come back to it. The bottom
line is you're not speculating that he made the statement,
because it's in the testimony. Do you agree that he made the
statement? You're looking at it.
Mr. Gregorie. The statement that's in here?
Mr. Shays. Yes. No, we're not debating that, are we?
Mr. Gregorie. No. What we're debating is whether somebody
told him they were getting $400 or that's a number he came up
with out of the top of his head. I have no idea about where he
got that number. I know nothing about any----
Mr. Shays. I didn't ask you how he got the number. I'm just
asking you--excuse me.
I'll be happy to give you your time.
We're going to come back, and we'll have more time. We are
going to go through this page by page by page.
You have a half hour, Mr. Waxman----
Mr. Waxman. Thank you, Mr. Chairman.
Mr. Shays [continuing]. Or more if you need it.
Mr. Waxman. Mr. Gregorie, you're being treated like you're
a simpleton. Now, as I understand, you have a pretty
distinguished record of prosecutions--or am I incorrect? Is
this Joe Gersten case the only one you've been involved with?
Mr. Gregorie. No, sir, not at all. I have two attorney
generals distinguished service awards, one from Attorney
General Meese in 1986, a second from Attorney General Reno in
the year 2000. I have been a Federal prosecutor for 27 years in
six different districts. I've got numerous awards. I have been
chief assistant, chief of the criminal division, chief of the
narcotic section in the U.S. attorney's office in Miami. I have
run the strike force field office in Connecticut. I am very
proud of my Federal record. Thank you, sir.
Mr. Waxman. Well, I want to say to all the witnesses here,
I don't take a back seat to anybody when it comes to questions
of prosecutor misconduct or indiscretion or abuse, and I know
there are people sitting in prison today because of prosecutors
zealousness and abuse of their powers, but I'm mystified why
you're here. I'm mystified why we're holding this hearing. It
just seems to me very, very peculiar.
I have a feeling that you might--the three of you--see
yourself here today as if you're on trial, and I could see why
you'd come to that conclusion, because the committee majority--
the Republicans that run this committee--have already issued a
report with conclusions. And the questions that you've been
asked suggest not that we're trying to get the information from
you--but that the majority knows the answers. Only you're not
saying what the majority wants you to say. And I haven't heard
that you've covered up anything. But I want to talk about this
committee report and give you a chance to talk about some of
the allegations that have been made.
The majority apparently has made up its mind about this
investigation long before it scheduled this hearing, and in
fact, the majority published its finding more than 2 months
ago. In that report, the majority said, ``government law
enforcement officials purposefully ignored significant
exculpatory information,'' that if aspects of investigation
were not brought to the attention of Ms. Reno, then serving as
State attorney, it, ``almost certainly indicates that her
subordinates were involved in improper activities.'' That,
``government officials were not acting in good faith.'' And
that the State attorney's office, ``appears to be engaged in an
ongoing effort to withhold significant information from
Congress.''
Now, these are inflammatory conclusions. They were reached
before the majority interviewed a single prosecutor involved in
Mr. Gersten's case. They were reached before holding a single
hearing to gather facts. And they were published as committee
findings before giving the committee members an opportunity to
deliberate and vote on this report.
Now, let me begin by saying that all our witnesses are
either current or former public servants. Richard Gregorie has
been a State and Federal prosecutor for nearly 30 years. He had
prosecuted a number of high profile narcotics and other cases,
including the prosecution of Manuel Noriega. Mary Cagle has
been a career prosecutor for nearly 20 years. She is now deputy
chief of special prosecutions in the State attorney's office in
Miami Dade County. In 1999, she was appointed by Governor Jeb
Bush of Florida, to serve on the Public Corruptions Study
Commission. Michael Band served as a prosecutor for
approximately 20 years. He served as chair of the criminal law
section and as chair of the bar grievance committee of the
Florida bar. And I understand that Mike Osborn is here to
answer questions. He has had a distinguished career as a
homicide detective.
I want to go through these allegations. The majority states
in its staff report that the vast power of the State was used
to destroy Mr. Gersten. Mr. Gregorie, would you care to
respond, or, Ms. Cagle or Mr. Band, on this allegation?
Mr. Gregorie. Mr. Gersten destroyed himself, Congressman.
We did not prosecute him. We never charged him with any
offense. Mr. Gersten was given use and derivative use immunity.
I think we need to explain this. In the State of Florida, under
Florida law when you were served with a subpoena, you are
automatically under Florida law given use and derivative use
immunity. So that when Mr. Gersten was given a subpoena and
called to testify, it meant that he could not be prosecuted for
anything that he said.
Mr. Gersten refused to testify. He was not sent to jail for
anything that I did or anybody in our office did. Mr. Gersten
held the keys to the prison cell. He could have let himself out
at any time. He chose to come and testify. He was the one who
refused to testify and, therefore, was held in civil contempt.
Rather than do what most people do who decide to be held in
contempt, they find some reason that they feel that they are
going to not answer. He did not report. He turned himself into
a fugitive. He fled the country.
Mr. Waxman. Mr. Band, I'd like you to respond to this
allegation. The vast power of the State was used to destroy Mr.
Gersten. You're part of that vast power of the State. Tell us
about it.
Mr. Band. Yes, and I wither at the thought of the vast
power of the State. The vast power of the State, or indeed of
the government, is often held in check by the judiciary. Often,
as--both as a State prosecutor and indeed as well as a Federal
prosecutor, witnesses have refused to testify. I don't know of
any instance where the individual who was brought before the
judge in that circumstance was not forced by the judge, either
the U.S. district judge or a circuit judge, or indeed a county
judge in Florida, within a day. You're brought in. You're
explained your obligations, immunity, and you testify or you go
to jail.
In this case, as I suggested in my opening statement, it
was unprecedented, unheard of the length of time it took to get
it to the point, to get Mr. Gersten to testify. He appeared or
challenged the subpoena before a number of judges. It was
reviewed by district court of appeals in the State of Florida.
He went to Federal court. It was reviewed by Federal judges and
by Federal courts of appeal, rejected his arguments in its
entirety.
Mr. Waxman. So he had a chance to make his case. He had
lawyers pursuing his interests about refusing to testify? He
went to even the appellate court and lost?
Mr. Band. And lost up and down at every turn.
Mr. Waxman. So, Ms. Cagle, how do you respond, the vast
power of the State being used to persecute Mr. Gersten?
Ms. Cagle. Our sole motivation as prosecutors and at the
State attorney's office was to do a fair, thorough and complete
investigation. I feel we did that. We followed the leads where
they took us. We tried to corroborate the testimony of the
witnesses. At the end of the day, there was no reasonable
probability of a conviction in the case, and so we didn't
charge him. I believe that was the right decision. Had we
charged him, there would have been much exculpatory
information, we would have had to give to the defense. I take
those obligations incredibly serious. I make Brady disclosures
in my cases. Mr. Gersten was never charged, consequently there
was no obligation in this case to give exculpatory information
to the defense.
Mr. Waxman. Well, you've answered the second allegation
made by the Republican staff in their report, because they
concluded that prosecutors purposefully ignored significant
exculpatory information.
Ms. Cagle. I don't believe we did that. I believe we
followed the leads where they took us. You know, we followed up
on the allegations that were made. We created an ethical wall
in this case, which was the right and proper thing to do, and
at the end of the day, you know, our standard is, is there a
reasonable probability of a conviction in this matter, and we
came to the conclusion that there was not. And consequently, we
didn't charge him.
Mr. Waxman. The Republican majority concluded in their
staff report that the investigation into the theft of Mr.
Gersten's car was, ``merely a pretext to obtain statements from
Gersten that would permit an indictment for perjury.''
The three of you want to respond to that?
Mr. Gregorie. Well, I think they're talking about what was
referred to often as a perjury trap. That, Congressman, is a
legal fiction under the law. You can't trap somebody into
lying. They either tell the truth or they lie. But under the
law, if someone is charged with perjury and the questions he is
asked are questions which are not designed to further the
investigation but rather are designed solely, for the purpose
of making him tell a lie, then that is a perjury trap. That is
in the law called an affirmative defense. What that means is
that once you are charged, you can admit your guilt but say I'm
guilty, because the government put me in a position of making
me lie. You can't be put in that position until you've
testified.
Mr. Gersten refused to give any testimony. So they couldn't
have used the perjury trap. There are numerous cases. I've
cited them in the cases in my statement, and you can find them
there. But there was no perjury trap, because Mr. Gersten
repeatedly, throughout this investigation refused to give any
statement or any sworn testimony of any kind.
Mr. Waxman. Do either of the two of you disagree with that?
Mr. Band. No. As a matter of fact, in Judge King's
published opinion, he addressed the perjury trap issue and
rejects it as indeed did the other courts who reviewed this.
Mr. Waxman. So a judge heard evidence that Mr. Gersten's
lawyer presented to the court, indicating there might have been
a perjury trap?
Mr. Band. That's correct.
Mr. Waxman. And rejected that argument?
Mr. Band. That is correct.
Mr. Waxman. But our Republican staffers, nevertheless,
reached the conclusion there was a perjury trap, even though
the judge heard the evidence and reached a different
conclusion?
Mr. Band. I do not know what the staff read, but there are
certainly published opinion. Gersten v. Rundle. I appeared
actually as counsel in that case before, again, a Republican-
appointed, Nixon-appointed U.S. district judge. And there's a
full discussion in there about perjury trap. It was rejected by
that judge.
Mr. Waxman. The majority states that the prosecutors acted
in, ``extreme bad faith by engaging in a head-long rush to
destroy Gersten.'' Any of you want to comment on that?
Mr. Gregorie. Congressman, we never charged him with an
offense. This was a public indecency case because two
prostitutes and a pimp were found in his car with his
briefcase, with his naked man pictures, with his gun, with his
badge, with his clothes that he had just bought from the
clothing store. We didn't create this incident, Congressman.
This was public information. It was put out in the press. We
didn't seek to destroy him. We merely sought to find the truth,
who was telling the truth. And we got statements from the
prostitutes and the pimp, who themselves were facing criminal
charges. So they, too, could have been in some difficulty. They
came in and gave statements. The government then sought to get
a statement from Mr. Gersten. He ran to Australia. That is
where the case stands.
Mr. Waxman. Well, look, these are charges that have been
made against the three of you before any of you were talked to
by our staff; is that correct?
Mr. Gregorie. That is correct, and I----
Mr. Waxman. Charges about your conduct and your
professional integrity, but none of you had been interviewed by
the staff before these allegations were made. Is that correct?
Mr. Band. That's correct, Congressman.
Ms. Cagle. That's correct.
Mr. Waxman. Well, let me just give the last one in the
Republican report. They say that the State attorney's office
appears to be engaged in an ongoing effort to withhold
significant information from Congress.
Ms. Cagle, would you care to respond to that?
Ms. Cagle. That's just not so. A request was made for our
files. The staff at the State attorney's office gathered the
files. I was not personally involved in that, but there were
about five boxes of files that they gathered. All of that was
produced to Congress. It was produced to Congress after
approximately seven groups of individuals from various
agencies, six or seven. I'm not sure--had already made public
records requests, and in a conference room at the State
attorney's office, unsupervised, had been through all of those
records.
Mr. Waxman. Well, maybe the allegation has been made,
because Mr. Gregorie, you didn't agree to an interview without
a subpoena being issued. That seems to me hardly to justify an
allegation that you appear to be engaged in an ongoing effort
to withhold significant information from Congress.
Mr. Gregorie. Well, that's a strange allegation, since I
haven't been in the State attorney's office since 1994. I left
the State attorney's office in March 1994. So for them to say
that I engaged in some sort of effort to keep them from
information in this case, I wasn't even aware where the State
attorney's office records are, and I haven't been in that
office in 7 years.
Mr. Waxman. Ms. Cagle, you're with the State attorney's
office?
Ms. Cagle. I am.
Mr. Waxman. And everything you've been asked for, you've
turned over?
Ms. Cagle. Again, I wasn't involved in the process. Staff
members at the State attorney's office gathered together, when
requests came from a whole wide variety of people, I think
starting with the Channel 7 reporter, Gersten's lawyer, a
friend of Gersten, the Florida bar, the Miami Herald. After an
initial report was made by the TV reporter, all of these
entities asked for--made public records requests. The files
were reviewed by someone other than myself. A decision was made
that they were a public record because the statute of
limitations had run on everything involved, and they were made
available to everyone who asked.
At one point in time, a request for public records was made
from Congress. All of the files were, you know, copied and sent
to Congress. I know there is an allegation that, you know, the
Osborn report was not in the file. I tried to address that in
my opening statement.
Mr. Waxman. I think you've answered it to my satisfaction.
Ms. Cagle. Thank you.
Mr. Waxman. I don't think you need to do anything more to
prove your innocence. Because no one in my mind has even come
close to establishing that you've done anything wrong.
Ms. Cagle. Thank you, Congressman.
Mr. Waxman. For the past 6 months, this committee has been
investigating President Clinton's pardon of fugitive financier
Mark Rich, and both the Republicans and Democrats on this
committee criticized Mr. Rich's decision to flee the country
rather than face the charges against him. For example,
Representative Shays said, ``of all the pardons, the hardest
one for us to understand and justify is the pardon of Mark
Rich, an individual who fled the country and became a 17-year
fugitive from justice.''
Mr. Shays. Finish the sentence.
Mr. Waxman. That's all I have.
Mr. Shays. No. You left out a little bit.
Mr. Waxman. Well, I agree with that statement.
Mr. Shays. A traitor to the country, etc.
Mr. Waxman. Well, but just the fact that he's a fugitive,
to me it's damning enough. Chairman Burton said if Mr. Rich
thought he wasn't guilty, you can bet your bottom dollar he
wouldn't have given up his American citizenship and fled the
country, end quote.
The irony is that the majority is rushing to the defense of
another person who has been found to be a fugitive from
justice.
I have a few questions about the contempt order issued
against Mr. Gersten and the meaning of his departure from the
United States. Ms. Cagle, I understand that Mr. Gersten refused
to answer questions, even under a grant of immunity. Is that
correct?
Ms. Cagle. That's correct.
As in all cases of this nature, you----
Mr. Waxman. Well, I'm just asking that.
Ms. Cagle. Sure.
Mr. Waxman. Now, was he held in contempt of court?
Ms. Cagle. Yes, he was.
Mr. Waxman. Was he eventually thrown in jail?
Ms. Cagle. Yes, he was.
Mr. Waxman. He appealed his contempt order. Is that right?
Ms. Cagle. That's correct.
Mr. Waxman. And how many judges ruled on his various
appeals?
Ms. Cagle. I think about seven.
I wasn't really involved in that litigation. I'll defer
that question to Mr. Band, but I believe it was about seven----
Mr. Waxman. And was Mr. Gersten released from jail during
the pendency of his appeals?
Ms. Cagle. Yes, he was. At one point in time he got out on
bond.
Mr. Waxman. And when the decision came down that Mr.
Gersten had to testify, where was Mr. Gersten?
Ms. Cagle. He had fled the country.
Mr. Waxman. Well, I want to make sure I have all of this
straight. This hearing is about someone who refused to
cooperate in a criminal probe. He hired the best attorneys
possible, and he spared no expense in his defense. And when
faced with a court order, rather than obey the law, he fled the
country. Then he kept trying to get courts to look at his case,
and the courts ruled against him.
Now, it's 10 years later, and this committee has bought Mr.
Gersten's line that he's a victim, hook, line and sinker. Is
that the conclusion that is appropriate to reach when you
looked at the committee staff report and this investigation to
date? Any of you want to respond to that?
Mr. Gregorie. Well, I would like to add a thing to one of
your earlier questions.
I know the report indicates that we didn't examine
exculpatory information. 2 days after this incident occurred,
we received information in the office that the prostitutes and
the pimp were trying to extort Mr. Gersten. We wired a private
investigator, sent him to see Mr. Elswick, the pimp, recorded
his conversation and arrested him for extortion. He has gone to
jail for 8 years on another charge run concurrent with this
extortion charge.
During that tape recording, it's interesting to note,
Congressman, we did this. We examined the exculpatory
information. On that tape recording, although he is extorting
Mr. Gersten, he is also saying, the truth is we were there with
you in the crack house, but I will lie about that and say I
wasn't there if you pay me $10,000. This is an indication of
the character of the witnesses, but it is also an indication of
what the truth was in this situation.
Mr. Waxman. Well, I can't reach any judgment on all of
these facts. This strikes me as just an incredible hearing.
Talk about the abuse of government power. I mean, this
committee has government power. Our committee could just issue
subpoenas. Our staffs can just write reports. They don't have
to talk to witnesses. They don't have to get the facts. They
can reach their conclusions and issue them in the name of the
committee even though they were careful, I guess somewhere, to
have a disclaimer that it is a committee staff reports.
But the great irony to me is not only the connection to Mr.
Rich. The great irony to me is that the Republicans are
defending a man who was a public official and trying to
minimize the fact that not only was it a public official but he
might have been lying to cover up sex. Does any of that sound
familiar? We have the Republicans in this Congress trying to
indict the President of the United States through an
impeachment in this House because they said he was a public
official who lied to cover up sex, and that was wrong, and they
were going to go after him and drive him from office.
And here we have a public official, who may or may not have
lied to cover up sex with a prostitute and using crack
cocaine--that may or may not be true--and they want to bring
him back to the United States and excuse him from any offenses
because he's been charged by people who are out to get him. I
just find the whole thing quite amazing.
That green light is still shining, which means I have more
time, but I can't think of any more to ask you. So I'll yield
back my time, and I guess I'll get a chance later if there's
something else comes up to inquire about.
Mr. Shays. This is going to take a little longer. We're
going to do 5 minutes, 5 minutes. We're going to go back.
But, you know, I heard some laughter and I heard some
amazement. I am eager to give you the opportunity to tell your
story, I am eager to get at the truth, and I am eager to know
why we have information that we will be asking that conflicts
with things that have already been said. You will have your
opportunity to answer those questions, but it necessitates my
going down through these questions. But if we have faith in the
system, of your being able to respond to the questions, we'll
ultimately know where the truth lies.
Mr. Gregorie, I just want to ask you a question that is not
in line with the questions. You have continually brought up
what was found in the car and what the accusations were. Did
you ever, during the course of this investigation, speak to the
press about this case?
Mr. Gregorie. I don't remember any direct action with the
press. It's very possible there may have been times in the
court.
I do remember that I went to examine the crack house where
the prostitution occurred, and when we got there the press was
there, and there were cameras there, and they took pictures of
us examining that crack house. I was there with the police
officers examining the crack house. So I do remember that. Of
course, this is 10 years back; and, to be honest with you,
Congressman, if I am quoted somewhere, please refresh my
recollection.
Mr. Shays. Did you ever provide any information to the
press, leaking information that was--of information that you
had not made available to the press?
Mr. Gregorie. You've used two questions, if you don't mind,
Congressman. One is leaking information and the other is
talking to them. I may well have answered press questions. I
may have seen them. I'm not sure. I don't remember any specific
instance, but I know I've talked to a lot of press.
Mr. Shays. How about the second question?
Mr. Gregorie. Did I leak any information to them? No.
Mr. Shays. Are you aware of anyone else in your office who
leaked information?
Mr. Gregorie. You mean in the State attorney's office?
Mr. Shays. Yes.
Mr. Gregorie. Not that I'm aware of.
Mr. Shays. Did you ever encourage anyone to leak
information?
Mr. Gregorie. Absolutely not.
Mr. Shays. Mr. Band, same questions.
Mr. Band. As to leaking information, no. Again, the side I
was on, I had no information to leak. It was out in--if you
will, out in the public. He refused to answer a subpoena. There
was nothing to leak.
Mr. Shays. No. The subpoena before then, the accusations
were fairly well known early on. Is that just public
information that, you know--can a prostitute and a drug dealer
basically make an accusation against someone and in the process
of your investigating, that's public information?
Mr. Band. I was not privy, prior to my involvement, to any
of the information. You're asking me to speculate. If you want
me to speculate----
Mr. Shays. No. I don't want you to speculate. I want to
know, in your official duties, did you ever have information
that you leaked to the press that was basically still
confidential information? Did you know of anyone who did?
Mr. Band. No, I did not.
Mr. Shays. Have you ever had any discussions with anyone
who did?
Mr. Band. No.
Mr. Shays. Ms. Cagle, the same questions.
Ms. Cagle. I don't recall whether or not I had a
conversation with anybody from the press in my official
capacity, and I didn't leak any information.
Mr. Shays. OK. Mr. Gregorie, you continually make reference
to the fact that, you know, he had a briefcase, he had a
necklace, and that the four individuals had his personal
belongings and so on. You've constantly made reference to that
fact.
First, tell me why that's important, and then I want to ask
you a question.
Mr. Gregorie. Well, because the four individuals by
themselves would have been incredible. If they had walked in my
office by themselves in the condition that they were--and I
have to tell you these were crack addicts. They couldn't stay
more than 30 or 40 minutes without a fix. The women were in
very bad shape. I would never have based an investigation on
those four people walking in and telling me that they had sex
and drugs with Mr. Gersten. However, that put together with
their having his most intimate personal belongings, indicated
to me that there was a good possibility. In fact, there was a
probability that they were with him and took his items from
him, because I could not possibly, in all good common sense,
tell you that there was any other way they could have gotten
those items.
Mr. Shays. In other words, a briefcase wouldn't be left in
a car. What was left in the car that might not have been or
shouldn't--or is absurd to have been left in a car.
Mr. Gregorie. His car keys.
Mr. Shays. OK.
Mr. Gregorie. His briefcase with not only important legal
papers but the naked photos of this man we've never been able
to identify.
Mr. Shays. Let me ask you this. And you know for a fact
those were his photos and not put in there?
Mr. Gregorie. Well, his lawyer said so. His lawyer said
that he would claim a lawyer-client privilege to them except
that he never asserted the privilege. In other words, how----
Mr. Shays. Let me be clear, because it's, you know, on the
record.
Mr. Gregorie. Sure.
Mr. Shays. You're saying that there is no question that
those were his photos?
Mr. Gregorie. Well, his lawyer said that.
Mr. Shays. His lawyer----
Mr. Gregorie. His lawyer said that he would claim--in fact,
she wanted to get the papers back, indicating that he would
assert a lawyer-client privilege.
Mr. Shays. I want to be precise, and you want to be
precise, too.
Mr. Gregorie. Sure.
Mr. Shays. The papers or the pictures?
Mr. Gregorie. The pictures. We're talking about the
pictures of the naked man.
Mr. Shays. OK.
Mr. Gregorie. Yes. His lawyer wanted us to take them out
of--because once these public documents became public, those
pictures are there, the news media can go--I mean, I don't know
if they want to look at them.
Mr. Shays. These were not pictures of him. They were
pictures of someone else?
Mr. Gregorie. No. It's a young man, probably in his early
20's, fully naked, sitting in a chair. There were about three
or four of these pictures. We were concerned that it was a Dade
County employee and that there was a possibility of some
extortion here, and we tried to identify this man.
Unfortunately, nobody has come forward to be able to tell
us who this man was, or did come forward, but his lawyer
indicated to us that these were covered by lawyer-client
privilege. In order to assert that privilege, you have to do
more than just say they're covered. You have to do something to
assert your privilege.
Mr. Shays. Why didn't you prosecute Mr. Gersten?
Mr. Gregorie. Because I would have had to put on the
witness stand four of the most disreputable witnesses probably
that could have been found. And although I felt that the
corroboration was strong, I did not believe I could carry the
case and I could meet my standard of getting a probable
conviction if I had to put those witnesses on the stand.
Mr. Shays. You basically have described that you had people
who couldn't last even hours practically without it, and----
Mr. Gregorie. That's the problem.
Mr. Shays [continuing]. And without--yeah. OK. And so
basically you didn't have credible witnesses to prosecute him
for filing a false statement about his automobile?
Mr. Gregorie. That's correct.
Mr. Shays. Now, what about the drugs, though? They said he
was taking crack.
Mr. Gregorie. Well, the witness for that was a man named
Mr. Maldonado, who was I think, of the four, the most credible.
Unfortunately for Mr. Maldonado, he was convicted of murder in
New York and was on parole from New York and wanted in New York
for those charges. And once I had seen his entire record and
that he was a fugitive from New York and he was the one who
claimed that he was buying the crack for Mr. Gersten, I felt he
was another witness who would, before a jury, not have been a
credible witness; and therefore I did not feel that there was a
probability I could get a conviction.
Mr. Shays. So you had no credible witnesses?
Mr. Gregorie. I had no witnesses--no credible witnesses,
correct.
Mr. Shays. Right. But what about the whole accusation about
him taking drugs? Was he taking drugs?
Mr. Gregorie. I can only tell you what the four witnesses
told me.
Mr. Shays. He wasn't tested?
Mr. Gregorie. He was tested, and the tests came back.
Unfortunately, Mr. Gersten, the day after this event, flew to
Europe and stayed an extra 2 weeks in--or 3 weeks in Europe
before he came back. When the test finally was taken, the FBI
came back and said he was not a regular user of cocaine,
although they could not rule out that he was an occasional one
or two-time----
Mr. Shays. No. This is----
Mr. Waxman. Mr. Chairman.
Mr. Shays. Yeah.
Mr. Waxman. I'd like to pass----
Mr. Shays. Sure.
Mr. Waxman [continuing]. On my first round and proceed with
my questions, the second round of 5 minutes.
Mr. Shays. Let me just say, Mr. Waxman, I want to
religiously protect the 5-minute rule, and if I go over it,
it's just that I am interested in getting answers here, and I
have no problem with you just asserting your right to exercise
your 5 minutes.
I just want to understand something. So is your accusation
that, by being away 5--3 weeks, that the test wouldn't have
been a valid test, or do you acknowledge that in fact when he
took the test it showed that he was not a user of cocaine?
Mr. Gregorie. That he was not a regular user of cocaine.
Mr. Shays. OK. And my understanding is if he used cocaine,
you're either a regular or--you can use cocaine just
periodically, just at will, just show that restraint?
Mr. Gregorie. I am not a scientist. I'll let the report
speak for itself, Congressman. But if you look at the report,
you'll see what it says is, we cannot tell you that he did not
use cocaine. What we can tell you is that he is not a regular
user, that it is possible that he used it once or twice. We
can't tell you that. That's what the report says.
Mr. Shays. They really--and, in fact, they can't tell you
that he did take cocaine, but they can tell you--it's stated a
little differently, I think is accurate. They can tell you
emphatically that he was not a regular user, and they can't
tell you that he took any cocaine.
Mr. Gregorie. That's correct.
Mr. Shays. That's correct. So, you know, from our
standpoint, looking down on this thing, there are three things
that start to raise some real question marks. You've got a
witness who basically comes in and accuses someone you're
prosecuting of committing murder, who says the FBI is paying
$400 to one of your witnesses. You have the accusation that he
was taking crack cocaine, and you have a test that said he
definitely wasn't a regular user, and they can't substantiate
that he took cocaine, and he was willing to take that test.
And--or he did take it. He did take it. And so--and then we
have--we start to ask for this information; and a key document,
whether inadvertently or not, was left out. So we begin to say,
what's going on here.
Mr. Gregorie. What key document? I'm sorry, Congressman,
but what key document was left out?
Mr. Shays. Information that he would have been accused of
murder and that--you don't think it's a key document?
Mr. Gregorie. No.
Mr. Shays. Yeah. That's interesting.
Mr. Gregorie. I don't see at all.
Two things, if I may, in response to what you've said.
Mr. Shays. Sure.
Mr. Gregorie. First, although I couldn't use it as
evidence, shortly after this incident, Mr. Gersten's lawyer
came in to see me and Mary Cagle, and then we took him down to
see Janet Reno. The lawyer said to us, Mr. Gersten's family is
worried about him. We want to see if we can work this thing
out. They think he's sick. They think he has a crack problem.
They'd like to work this thing out. That told me that it wasn't
just----
Mr. Shays. That was family members?
Mr. Gregorie. That was Mr. Gersten's lawyer, Mr. Richey.
Mr. Shays. OK.
Mr. Gregorie. He came in, and what--I can't say it's a plea
bargain, because he wanted to see what we could do to help him.
Mr. Shays. Let me ask you, if it was a plea bargain, would
you be able to talk about this?
Mr. Gregorie. No, I would not--well, I couldn't talk about
it----
Mr. Shays. I just--I'm sorry to interrupt you. But you
know, when Mr. Waxman was asking if I was treating you
respectfully, I just am trying to listen carefully, and so when
you insert the word, you know, it wasn't a plea bargain, it
enables you to say things that if it was a plea bargain maybe
you wouldn't say. That's what I'm asking.
Mr. Gregorie. No. What I'm saying is I couldn't use it as
evidence in court. I can use it here to answer your questions.
It certainly--in fact, we testified to it. I testified and Ray
Havens, who was also present, testified to it in a hearing
before Judge Dean in one of these proceedings in which Joe
Gersten was challenging the initial subpoena. Both of us were
called to testify. So I'm really repeating to you today exactly
what--or close to I hope what was said before the judge. And I
know Ray Havens has testified in that proceeding as well, and I
think you'll find it in his testimony as well.
Mr. Shays. Something you'll know, Mr. Gregorie, I'm not
reluctant to ask a question I don't know, because I am not
trying to prove a case, and hopefully you'll have that
understanding. I don't care if you tell me something that
basically says that Mr. Gersten was--in fact, I care to know.
I'm not here to try to prove or back up a report or anything
else. By the end of the day, though, I hope to God I have the
truth, and I hope this committee does. And all I'm saying to
you is that there are three issues on the table of curiosity to
us and to me, and it is something that we would like to have
more information about, because there's other information that
we haven't shared.
Mr. Gregorie. Congressman, I apologize if I answer
aggressively. It's just that being accused of abusing my
prosecutorial power, when I didn't charge this man, when I used
my prosecutorial discretion not to charge him, somewhat has me
a little charged up here, so to speak. So if I sound
aggressive, I apologize.
Mr. Shays. No. You can be aggressive. I just want you to
understand that I am happy to ask any question and get whatever
is the truth.
In your opinion, should the FBI pay money to cooperating
witnesses without checking out why the witness is committing a
crime involving the target of an investigation? I would like to
ask you that, Ms. Cagle.
Ms. Cagle. Could I ask you to repeat the question?
Mr. Shays. Yeah. In your opinion, should the FBI pay money
to a cooperating witness without checking out why the witness
is committing a crime involving the target of an investigation?
Ms. Cagle. You're asking me to comment on----
Mr. Shays. Yeah. I am. I'm asking you to comment.
Ms. Cagle [continuing]. Whether they should pay money to a
witness?
Mr. Shays. I have no problem asking you your opinion about
the FBI. They got involved in your case, and I have no problem
asking you about that. Do you want to----
Mr. Waxman. Finish this, and then I will.
Mr. Shays. Yeah. So the question I'm asking, in your
opinion, should the FBI pay money to a cooperating witness
without checking out why the witness is committing a crime
involving the target of an investigation?
Ms. Cagle. No. They probably should check it out. Yeah.
They probably should followup. I think, you know, people should
followup and ask questions about----
Mr. Shays. I mean, wouldn't it make sense? Why would you
pay someone $400 when you understand that person is being
accused of having someone come to the police about the same
person who is being investigated and saying that he committed a
murder? Why would we pay them $400? I want to know that.
Ms. Cagle. I don't know why they paid the $400. I don't
know if they paid the $400. I've never had a conversation with
anybody about the $400. If they paid the $400 to put the
witness up in a hotel like we were doing through the State
attorney's office, I guess I could understand that.
Mr. Shays. Let me just say, we have documentation that says
they did pay the $400.
Ms. Cagle. OK.
Mr. Shays. So now--and we'll show that to you. But the
question is, should that happen?
Ms. Cagle. I mean, I would say you should ask the FBI why
they paid the money and what they did it for. Like I say, if
they were using the $400 to dry her out or something like that,
I guess I would think maybe that would be appropriate. Should
they ask followup questions? Sure, I think we should always ask
followup questions.
Mr. Shays. OK. Mr. Waxman, thank you for your patience.
Mr. Waxman. You know, another thing I'm confused about,
Janet Reno. This committee has a long history attacking Janet
Reno, at least the chairman has a long history--not this
chairman but Chairman Burton has a long history of attacking
Janet Reno. How does she fit into all of this? What does Janet
Reno have to do with any of this that we've heard about today?
Ms. Cagle. She was the State attorney at the time that this
case was investigated.
Mr. Waxman. So she was the State attorney. Were you at the
office at that time?
Ms. Cagle. I was.
Mr. Waxman. And was she involved in this case?
Ms. Cagle. She was briefed on this case like she was
briefed on all cases in the corruption unit.
Mr. Waxman. And what role did she play, other than having
been briefed?
Ms. Cagle. Well, she was present at the conversation. When
Mr. Richey contacted us and said that he wanted to come in and
talk to us and we had a meeting and----
Mr. Waxman. Mr. Richey is who again?
Ms. Cagle. Mr. Richey was Mr. Gersten's lawyer at the time,
and we had a meeting with Mr. Richey, somebody else in his
office. And he had called for the meeting, and we had the
meeting in Ms. Reno's office, and there were discussions
regarding the fact that he had a problem.
Mr. Waxman. Mr. Richey had a problem, or Mr. Gersten did?
Ms. Cagle. Mr. Gersten had a drug problem and was there any
way we could resolve all of this, short of going forward with
the investigation.
Mr. Waxman. And what was Ms. Reno's response?
Ms. Cagle. We all listened to Mr. Richey. It wasn't sort of
the setting where any action was going to be immediately taken.
It was just sort of a discussion where he came in and said,
look, Mr. Gersten has a problem. We're concerned about him. You
know, is there some way we can resolve this, you know? It was
just a general discussion where he came in and acknowledged Mr.
Gersten's drug problem.
Mr. Waxman. And what other activities did she personally
have in this whole issue?
Ms. Cagle. That is the only meeting 10 years later that I
have a recollection that she was a part of, but that is not to
say that we didn't brief her as we went along. I just--you
know, it's 10 years ago. It's hard to say, you know, what she
was involved in and what she wasn't, but, you know, I mean, we
did brief her on cases. So she would have had some knowledge,
but----
Mr. Waxman. Did you know of any wrongdoing on her part?
Ms. Cagle. Absolutely not.
Mr. Waxman. Do any of the other witnesses have any
knowledge about any unprofessional conduct or wrongdoing on the
part of Janet Reno?
Mr. Gregorie. I doubt I'd be sitting here today if she
thought I did something wrong.
Mr. Waxman. Why is that?
Mr. Gregorie. She would have fired me so fast that my head
would have spun. I wouldn't be allowed to be a lawyer any
longer if she had anything to do with it if I did something
wrong. If I did what this is saying that we did, Janet Reno
would have fired me and thrown me out of the office so fast
that my head would have spun.
Mr. Waxman. Well, that's if you did something, but do you
know of anything--any information that she did something wrong?
Mr. Gregorie. Absolutely not.
Mr. Waxman. Mr. Band.
Mr. Band. No, Congressman. I don't believe she did anything
wrong.
Mr. Waxman. Well, she was there as the head of the State
attorney's office. Was it----
Ms. Cagle. Correct.
Mr. Waxman [continuing]. At the same time that the State
attorney's office refused to prosecute? Is that right?
Ms. Cagle. That's correct.
Mr. Waxman. Is that prosecutorial abuse?
Ms. Cagle. I don't believe so.
Mr. Waxman. You other gentlemen, you lawyers?
Mr. Gregorie. Absolutely not.
Mr. Band. No, Congressman.
Mr. Waxman. Well, that was the only other reason I hear
that this investigation loomed so large in the minds of those
who--on this committee--have made decisions to use our staff
resources and our committee time.
I have other things I would have liked to have done today,
but it's important that we're all here. We're spending the
taxpayers' dollars, so I thought maybe we knew something that
Ms. Reno did improperly. None of you know anything about that?
Ms. Cagle. No.
Mr. Band. No.
Mr. Waxman. Well, I don't either. I know that she did a
fine job as far as I could tell as Attorney General, but I have
no judgment to make, from my observation. I can't comment on
everything she did one way or the other because I wasn't close
enough to her. When did she complete her job as State attorney
in Florida?
Mr. Band. It would have been spring of 1993, Congressman. I
am sure you will recall the difficulty President Clinton had
finding an Attorney General. My recollection was he settled on
or chose Ms. Reno probably around February or March, and she
would have been confirmed sometime after that.
Mr. Waxman. And the Gersten issue was all in what year?
Mr. Band. It commenced in April 1992 and continued through
its tortured path through the courts. The order of contempt was
March 1993, but it continued to into Federal court.
Mr. Waxman. If there were prosecutorial abuse, what year
would that have been? That's like saying if you had beaten your
wife and stopped, what year would that have been. If the
Republicans were trying to use it for political purposes to go
after Janet Reno because they never liked her anyway, and she
might even run for office, they had to dig pretty far back in
history to find something. And then it turns out they haven't
found anything. It to me is inexplicable.
I yield back the balance of my time.
Mr. Shays. The gentleman's time has expired.
I would like to ask you, Mr. Band and Mr. Gregorie, the
same question I asked Ms. Cagle. In your opinion should the FBI
pay money to a cooperating witness without checking out if and
why the witness is committing a crime involving the target of
an investigation? Mr. Band.
Mr. Band. Again, I was not privy to this, so I'm answering
as a general proposition.
Mr. Shays. We truly understand that.
Mr. Band. I presume that the FBI has administrative
procedures in terms of the payment of money and how it's
documented. The whys and the wherefores as suggested by your
question, I really do not have enough facts to answer the
question appropriately.
Mr. Shays. I asked you this question. I didn't ask you as
it related to any specific person. I asked a hypothetical
question, and I think I have a right to expect an answer. In
your opinion should the FBI pay money to a cooperating witness
without checking out if and why the witness is committing a
crime involving a target of an investigation? It's not a hard
question.
Mr. Band. If we break it down, Congressman, nothing's hard
about the question. The answer, though, I suggest, may be a
little more difficult. One would presume before the expenditure
of any government money there is a justification for it. Should
the FBI spend government money, taxpayer money, to promote an
investigation? The easy answer is obviously yes. Should they
check the witness out? Should they corroborate information?
Where are they going to court? Sometimes they need to make a
decision right away.
Mr. Shays. So what's the answer to that?
Mr. Band. Right away? The individual agent will make a
decision whether or not the money should be expended.
Mr. Shays. So you think that--your answer is you don't have
a problem with that.
Mr. Band. Well, I'm not sure I have a problem because I
don't understand, with all due respect, the Congressman's
question.
Mr. Shays. OK. That's my question. And the question is in
your opinion should the FBI pay money to a cooperating witness
without checking if and why the witness is committing a crime
involving a target of the investigation. So you would, I
presume, say there are conditions in which they should.
Mr. Band. That is correct.
Mr. Shays. Why don't you just say the answer. Good grief.
How about you, Mr. Gregorie?
Mr. Gregorie. You just answered it for me, Congressman.
There are conditions in which they should. I don't know what it
is they are paying for, and so therefore I can't be more
specific than that.
Mr. Shays. Fair enough. These are not trick questions.
Does it strike you as odd that one of two things necessary
had to happen; either McCann was offered money before the
alleged sex and drugs event took place, or McCann found Pearce
after the alleged sex and drug event and offered him money to
frame Gersten for a murder?
Could you put up exhibit 15. And all three of you can
respond.
This is one of your witnesses, Mr. Gregorie. Would you
respond?
[Exhibit 15 follows:]
[GRAPHIC] [TIFF OMITTED] 76596.058
Mr. Gregorie. It's one of whose best witnesses?
Mr. Shays. McCann was one of your witnesses.
Mr. Gregorie. She was one of my witnesses. You said one of
my best witnesses.
Mr. Shays. I didn't say ``best.'' I am happy to clarify. I
said that she was one of your witnesses.
Mr. Gregorie. Yes.
Mr. Shays. This witness was paid $400, she was, and the
question is one of these two things happened. Was either one
acceptable?
Mr. Gregorie. Well, first of all, if I may clear that up, I
don't know that she was paid $400, and I don't think--I would
be amazed if the FBI handed her $400 in cash. If I may,
Congressman, I gave specific instructions to the police
officers I was dealing with not to give any of these people
cash because I was concerned it would go right out on the
street as crack money. These were witnesses who were so
addicted that if they got that money, they would have spent it
on crack immediately. So I can't agree that anybody gave them
cash, and if this woman had cash, believe me, a crack dealer
had it within the next hour.
Mr. Shays. I want to ask staff a question here.
We will come back. We will either assert whether it was
supposed to be paid or was paid, and then we'll ask you that
question. That's a fair response.
Mr. Gregorie. Congressman, can I ask you if there is a
document of some kind----
Mr. Shays. I just made the point. You want to see the
document, and then you will answer the question. I think that's
fair, a document of, one, that it was to be paid and, two, was
it paid.
Mr. Gregorie. You will have to forgive me. Working with the
FBI all the time, I have an advantage over my colleagues
because I am used to FBI procedures.
The FBI cannot give out money without documenting who
received it, and the recipient would sign a receipt of some
sort. So if there is an FBI payment, there is an indication of
who received that money. So that would help me tremendously.
Mr. Shays. One of the helpful pieces of information you
provided is you wouldn't provide that money.
Mr. Gregorie. I would certainly want to know--if somebody
gave her $400, I want to know who gave it to her and how much
she was given and how it was delivered to her.
Mr. Shays. Let me ask you this, and we will come back to
that. I think this is a fair request. When did you first hear
that Joseph Gersten was accused of committing a murder? Mr.
Gregorie, when did you first hear it? When did you first hear?
The question is when did you first hear he was accused of
committing a murder?
Mr. Gregorie. I don't know that he was ever accused of
committing a murder. I know that Wayne Pearce walked in and
gave his false statement.
Mr. Shays. Is that not an accusation? Am I splitting hairs,
or are you splitting hairs?
Mr. Gregorie. Under Florida law if a man recants his
statement in the same proceeding in which he gave it, then the
statement is no longer a false statement.
Mr. Shays. Was he in front of a judge?
Mr. Gregorie. He was giving it to a police officer.
Mr. Waxman. Mr. Chairman, I allow you another 5 minutes. If
you would like the clock started again.
Mr. Shays. Thank you. The question I'm asking is it didn't
happen like that. He gave his testimony, and then a while later
he came back and was confronted a second time. It didn't happen
in the first episode.
Mr. Gregorie. It happened in the same proceeding. So that
I'm clear and I'm looking----
Mr. Shays. How do you define ``proceeding''?
Mr. Gregorie. The same interview. The police officer and he
were sitting in the same interview.
Mr. Shays. Mr. Osborn, maybe we need to bring you in here.
You've been very quiet. Tell us about it. We're talking about
you, and you're right here, and that's the reason why you're
here.
Mr. Osborn. What do you want me to answer?
Mr. Shays. I want to know your interviews with this
individual. I want you to describe the interview, and I want
you to describe what you learned, and then I want you to
describe what you wondered.
Mr. Osborn. I first met Wayne Pearce----
Mr. Shays. Put the mic a little closer, Mr. Osborn. Thank
you.
Mr. Osborn. I first met Wayne Pearce when I did take his
statement. He was brought in by Officer Garcia. Basically I was
called into my office in Homicide and briefed that Internal
Affairs had a witness that was involved in the homicide of
Gregory Wellons. I then met with Sergeant Meeks and Lieutenant
Fleites from Internal Affairs at which time they informed me
that Commissioner Gersten might be involved in this homicide.
Shortly after they briefed me on this----
Mr. Shays. A little louder and put the mic closer.
Mr. Osborn. Shortly after they briefed me on that, we
received a phone call that J.L. Garcia actually had Wayne
Pearce and was bringing him in. I then went to the Office of
Internal Affairs.
Mr. Shays. Let me ask you this. So Mr. Pearce wasn't there.
The Miami/Dade police had heard that this individual was a
witness to a crime.
Mr. Osborn. The information came from Officer Garcia.
Apparently he had contacted this kid on the street.
Mr. Shays. So Mr. Garcia had learned that Mr. Pearce had an
accusation to make, and you went and found him and brought him
in.
Mr. Osborn. That's correct.
When Pearce was brought in basically--well prior to that,
let me back up a hair. I was told that they had stopped
Commissioner Gersten's car, and these people were in it, and
the gun was in the car. So I was given the gun and told that
the witness had information about the homicide. I then asked,
where's the car?
Mr. Shays. Was this your case?
Mr. Osborn. Yes, sir.
Mr. Shays. OK.
Mr. Osborn. I then asked, where's the car, and the car had
been released. That didn't go over too well.
Mr. Shays. That should not have happened?
Mr. Osborn. No, sir.
Mr. Shays. Tell me why that car shouldn't have been
released.
Mr. Osborn. The accusation was that he was shot in the head
while he was in the car. The car would be a key piece of
evidence. We would want to look for blood splatter and things
like that. So once I obtained the information about the car,
and I immediately called down to property and found it had been
released to Mr. Gersten's aide. So then we get back to Mr.
Pearce. I interviewed him, and he gave the story that's in the
documents and on his statement.
Mr. Shays. Let me say I can barely hear your voice. Just
move the mic closer. You can still lean back. This is
interesting testimony. Thank you.
Mr. Osborn. I interviewed Mr. Pearce, and he told me the
story about the homicide, that he observed an argument about
Gregory Wellons--he was known as Champaign--and a heavyset,
bald-headed man in a light blue Mercedes on Biscayne Boulevard
and about 53rd Street. He then stated he heard them arguing
about money and that he was shot and pushed out of the car.
Well, this did not match up with the facts of the case. Mr.
Wellons was dumped several blocks from that area, and he died
on a different day.
Mr. Shays. But he was interrogated, correct?
Mr. Osborn. He was questioned.
Mr. Shays. He was questioned. Is ``interrogated'' a
different word?
Mr. Osborn. With a witness is more of a questioning. He was
offering the information.
Mr. Shays. He volunteered all of this information?
Mr. Osborn. Right. He was brought in by Garcia. He was
offering the information. I was absorbing the information and
comparing it with the facts of the actual case. After he gave
his information, I left the room and I briefed the people in
Internal Affairs, Fleites and the people there, that this was a
crock, that this didn't happen. And eventually we went ahead
and confronted him with the discrepancies in his statement, and
that's when he began to give the version with Lisa McCann. He
referred to her as Lisa, but I understood her to be Lisa
McCann.
Mr. Shays. Did you know her, by any chance?
Mr. Osborn. No, I did not.
Mr. Shays. So how much time between the first interview and
the second interview?
Mr. Osborn. I can't remember exactly. It was probably about
an hour and a half, an hour and 25 minutes, an hour and a half
after I first got his story before I actually took his
statement and confronted him with the----
Mr. Shays. OK. So, Mr. Gregorie, tell me again, are we
arguing over words here when you say he did recant? Your point
was what?
Mr. Gregorie. It's the same proceeding, Congressman. In
other words, when he walked in to give his statement, the fact
that Detective Osborn walked out and came back in doesn't
change the fact that it's the same interview. So when he takes
his statement back, it is no longer a false statement to the
police department. That was merely my point.
Mr. Shays. I can actually make a false statement and then
change it an hour later, and it's not a false statement?
Mr. Gregorie. That's right. You can't be charged for a
false statement. You have corrected it in the same proceeding.
It's like if I told you it's dark outside now, and then I said,
wait, I'm sorry, Congressman, I'm really lying about that it
really is light outside, it would not be a perjurious statement
because I've corrected it in the same proceeding. That's
assuming we're in the State of Florida.
Mr. Waxman. Mr. Chairman.
Mr. Shays. Mr. Waxman, I wanted to apologize to you when I
said your time had ended when you said you yielded back. That
was disingenuous, and I apologize.
Mr. Waxman. No apologies necessary. I almost feel like I
missed part of this movie.
Who was killed, Mr. Osborn?
Mr. Osborn. A man by the name of Gregory Wellons.
Mr. Waxman. He was known as Champaign.
Was he a transvestite?
Mr. Osborn. Yes, sir he was.
Mr. Waxman. So he had been shot?
Mr. Osborn. Yes, in the head.
Mr. Waxman. He had been shot by Mr. Gersten's gun?
Mr. Osborn. No, sir.
Mr. Waxman. Did anybody ever find a weapon?
Mr. Osborn. Yes, we did.
Mr. Waxman. Was that weapon traceable to Mr. Gersten in any
way?
Mr. Osborn. No.
Mr. Waxman. So Mr. Gersten is brought into all of this
because--this is, again, about Mr. Gersten--because someone
accused Mr. Gersten of having done the murder?
Mr. Osborn. Yes.
Mr. Waxman. Who was that?
Mr. Osborn. Wayne Pearce.
Mr. Waxman. Who was Wayne Pearce?
Mr. Osborn. He was a 15-year-old boy that pretty much lived
on Biscayne Boulevard.
Mr. Waxman. So he made this statement and retracted it?
Mr. Osborn. Yes. He said he lied because Lisa sent him in
and was going to give him money.
Mr. Waxman. Lisa is the woman----
Mr. Osborn. Lisa McCann.
Mr. Waxman. Who is she again?
Mr. Osborn. She's a witness in this case.
Mr. Waxman. She was one of people that presumably Mr.
Gersten had sex and cocaine with?
Mr. Osborn. Correct.
Mr. Waxman. So this fellow said that he was going to make
this accusation because she wanted him to make that accusation?
Mr. Waxman. That is correct.
Mr. Waxman. And who got the $400?
Mr. Osborn. Lisa McCann.
Mr. Waxman. Do you know anything about that $400, why she
was given $400?
Mr. Osborn. No, I don't. I just know she was given it.
Mr. Waxman. You know she was given $400?
Mr. Osborn. Yes, sir.
Mr. Waxman. By whom?
Mr. Osborn. Mike Bonner of the FBI.
Mr. Waxman. Did it have anything to do with this accusation
of murder, or is this accusation of murder just out there and
done? Do you take that seriously, the accusation of murder?
Mr. Osborn. Do I take it seriously?
Mr. Waxman. Mr. Osborne; you don't take any of that
seriously, do you?
Mr. Osborn. Well, after he admitted he lied, no, I did not.
Mr. Waxman. After the accuser admitted he lied?
Mr. Osborn. Yes. Wayne Pearce.
Mr. Waxman. It's interesting--Mr. Gregorie, do you want do
say something?
Mr. Gregorie. I think you remember early in my opening
statement I said when you look at facts like this, you have to
use your common sense. For this committee to be considering
that Mike Bonner, who is a former Pennsylvania State trooper, a
good FBI agent, who is now the legatee in Africa, Mr. Bonner,
to pay a witness to come in to say someone committed murder and
then not give him the right location, not give him the right
time of day or even the right date or even the circumstances
under which it was committed--I mean, if the FBI--I understand
maybe some of the Congressmen here don't think the FBI are very
competent, but if they are going to frame somebody, aren't they
at least going to tell them the right day of week the murder
happened on, or the right time of day, or how the murder
occurred or where it occurred?
This allegation of a frame-up, a payment for a man to come
in and say that, I apologize, it is laughable. I mean, for the
FBI to frame the man, at least they should have told him the
right day of the week or the right time of day or the manner in
which the crime was committed. Common sense tells you this is
nonsense.
Mr. Waxman. Maybe they didn't realize they would have this
whole issue before a committee of the U.S. Congress.
Mr. Gregorie. It is 10 years ago.
Mr. Waxman. It is an interesting aspect of the law. Someone
makes an accusation, false statement, to the police, but then
retracts it, they're not guilty of any crime.
Mr. Gregorie. If they do it in the same proceeding, then
under Florida law you are not guilty of giving a false
statement because you have corrected it in the same proceeding.
Even if the interview was continued over 2 or 3 days, but it
was the same interview, then you would not be guilty of a
crime.
Mr. Waxman. We work under different rules here in the
Congress of the United States. A Member of Congress or our
staffs can make false statements or accusations, and nothing
ever happens to us. We never have to say we're sorry, and we
can never be prosecuted, and we can always come up with another
false accusation if it looks like the first one wasn't
substantial enough. I have seen that happen.
So this could be a good dime novel, but it doesn't seem to
me like it is worth 10 cents.
I yield back my time.
Mr. Shays. Thank you.
We have Mr. Osborn testifying that he received the $400.
How do you know that, Mr. Osborn?
Mr. Osborn. I learned it from Mr. Wilson.
Mr. Shays. So you don't have your knowledge that he
received the $400?
Mr. Osborn. No, not at all.
Mr. Shays. OK. Thank you.
What I'm going to do now--Mr. Gregorie, I see you shaking
your head.
Mr. Gregorie. I am amazed that a witness would testify that
the $400 was paid because a member of this staff of this
committee told him 10 years later. That's what they wrote in
the staff report, Congressman.
Mr. Shays. Mr. Gregorie, the reason I asked the question
was to know the answer to the question. So you should have
sense that we're trying to understand this issue.
Now, what I'm going to do, with your permission, is I'm
going to give some of the 30 minutes to staff now to just
introduce some information to the committee, and then we'll
keep exact track of the time and then allow minority to have
that same amount of time or use their 30 minutes if they wish.
Mr. Waxman. Point of inquiry. Do you want to have the staff
take the staff's time now?
Mr. Shays. Some of the staff time now.
Mr. Waxman. But we're still working within the limits of
staff time, 30 minutes on each side.
Mr. Shays. Absolutely. Is that a problem?
Mr. Waxman. I have no problem with that.
Mr. Shays. Thank you.
Let me be very clear that each staff has 30 minutes of
time, and we are giving staff time now. You will not be using
the entire 30 minutes.
Mr. Wilson. I think so.
Mr. Shays. So we're keeping track, and since the staff hit
the clock, it does say 30 minutes.
Let me say before we start, we want to provide a document
to all of the witnesses, so we won't start the 30 minutes
before we give you the document. Please give a copy to Mr.
Waxman, and I would like a copy of it.
We will just give you a second for people to look at the
document so it is not strange to anyone.
I understand counsel is going to ask you on the last page,
and it is very difficult to read, so you may want to read the
last page with a little more attention. I apologize for the
condition of this handwritten note.
Have you all read that? When you're ready, let me know.
Are you prepared to start?
Mr. Gregorie. Congressman, I'm having a real hard time
reading this.
Mr. Shays. The last page has been typed out, and I think
really we should have typed the whole darn letter. We got this
this morning. Let's struggle through it and do the best we can
and go from there.
OK. I am going to have the counsel's time begin, and if you
would hit the button, please.
Mr. Wilson. Good afternoon. It will take a little while to
get through this, but I think I know you have correctly
perceived, for all of your concerns about the staff report,
that our concern was that one of principal witnesses, indeed
the witness deemed to be one of the most reliable by the FBI in
the Gersten case, had apparently, according to Mr. Osborn's
report, been part of an effort to frame Mr. Gersten for a
murder. And one of the things that has been said in the staff
report and that has been communicated today is that we're not
certain why no one would have taken the time to go back to the
witness and, after hearing the story about the many things that
she said, ask her, why are you trying to suborn this young
fellow to come in and tell a story about how Gersten murdered
somebody? So that is a conundrum for us why nobody went back
and did that.
Now, we asked in the committee for the underlying notes of
the FBI 302 of the May 1, 1992, interview of Ms. McCann by
Special Agent Bonner, and this morning we received a copy of
the underlying handwritten notes, and the reason we were
interested in that was because we wanted to receive the time of
the interview, and for reasons that will become apparent later,
that is of some importance. But when we reviewed this document
this morning, we saw something that we had never seen before
because we had received the typed 302 interview of Ms. McCann
prepared by Mr. Bonner, and there's something in the
handwritten notes that was not included in the ultimate FBI
302. And it's on this last page, and it goes to this murder
allegation that was brought against Mr. Gersten, and slightly
offensive in its language, but there's no way around reading
it.
I'll just read what I believe to be Mr. Bonner's
handwritten notes saying--these were notes taken on May 1,
1992. They say, yesterday some kid asked me if I had some
rolling paper.
Mr. Osborn. Speak up.
Mr. Wilson. I'm sorry.
``Yesterday some kid asked me if I had some rolling paper.
I said aren't you kind of young. It turns out he is about 15
years old. He asked me if I know about this faggot got shot
last week. He said the faggot was named Champaign. He said a
guy in a blue Mercedes shot him. He said some how Champaign got
in the car. Champaign got his keys wouldn't give them back and
the guy shot and killed him. He paid the kid $300 to keep his
mouth shut.''
Now, the first thing that was of some interest to us is why
Mr. Bonner would not have in his typed-up notes reflected fully
the information that Ms. McCann brought to him. So recognizing
that Mr. Bonner is not here, I will ask that question of each
of you. Did any of you--and I will start with you, Ms. Cagle--
ever talk to Mr. Bonner about his investigation of this matter,
specifically the murder allegation?
Ms. Cagle. I have no recollection of ever talking to Mr.
Bonner about this.
Mr. Wilson. Now, since relatively recently you had an
opportunity to look at this police report that Mr. Osborn
prepared, did that refresh your recollection in any way as to
people you might have talked to in 1992?
Ms. Cagle. I have no reason to believe anything in
Detective Osborn's report isn't true. I mean, I read it; I
looked at it. There was some reference in the middle of the
report to a conversation I had with Lieutenant Fleites, who I
worked with all the time. It did refresh my recollection as to
that sort of unrelated piece. But my recollection was not
refreshed as to the exchange Mr. Bonner or Detective Osborn and
I had.
But, again, I say it's not to say that we didn't have it.
I'm sure what Detective Obsorn put in his report is accurate. I
have no reason to think that it isn't.
Mr. Wilson. OK. Now, Mr. Band, did you talk to Mr. Bonner
at all about anything to do with the murder allegation?
Mr. Band. No, I did not.
Mr. Wilson. Mr. Gregorie, did you talk to Mr. Bonner at all
about the murder allegation?
Mr. Gregorie. Absolutely not.
Mr. Wilson. I think by your answers--and I think you are
probably going to answer the next question--it's a question we
ask, and you may not be able to answer it, but we're trying to
determine why Mr. Bonner chose to omit this information from
his prepared report of the interview with Lisa McCann. Do you
have any information that would go to that question, Mr.
Gregorie?
Mr. Gregorie. This report does not indicate who it is that
was in the blue Mercedes. If you have been to Miami, there are
an awful lot of blue Mercedes. This doesn't say it is Joe
Gersten.
Mr. Wilson. We're not saying it is. One of the things we're
trying to determine is whether or not any of you have
information as to why this was included in the ultimate report
prepared in the FBI, the typed FD-302. Do you have any
information on that?
Mr. Gregorie. As far as my case is concerned, this would
have absolutely nothing to do with my investigation of Joe
Gersten smoking crack and having sex with prostitutes in a
whorehouse on Biscayne Boulevard.
Mr. Wilson. Is it fair to say you do not have any knowledge
as to why this is not incorporated in the ultimate FD-302?
That's the question.
Mr. Gregorie. I have no idea.
Mr. Wilson. Mr. Band.
Mr. Band. I never saw the 302, and specifically to your
question, I have no idea why Agent Bonner did not include it.
Mr. Wilson. Ms. Cagle, do you have any information as to
why this was not included?
Ms. Cagle. No, I don't know.
Mr. Wilson. Now, one of our concerns is that this
handwritten notation here indicates that Lisa McCann told then
Special Agent Bonner, about the allegation of the murder, and
as Mr. Gregorie pointed out, it does not provide a name of any
individual, but it does provide an indication that a kid saw a
murder in a blue Mercedes, and it tracks fairly closely the
allegation that Mr. Pearce had made to Mr. Bonner. I mean, Mr.
Bonner, does this look like the same type of fact pattern that
Mr. Pearce brought to your attention when he made the
allegation of the Wellons murder?
Mr. Osborn. It's close, but the last part wasn't there, no.
Mr. Wilson. The last part being the part about paying the
kid $300 to keep his mouth shut?
Mr. Osborn. That is correct.
Mr. Wilson. Now, I'm not going to go too much longer on
this because I think you legitimately don't know much about
this, but there is a question that we feel, and feel with some
sincerity, and that is if information had been brought to your
attention, Mr. Osborn, that somebody had paid $300 to have this
kid keep his mouth shut in a murder situation, would you have
wanted to followup on this information?
Mr. Osborn. Yes.
Mr. Wilson. Ms. Cagle, would you have thought this of some
relevance if you had been aware of this at the time?
Ms. Cagle. Can I have some time to respond about what we're
talking about, because you keep referring to this murder
allegation, and in the context of what we were doing, I think
if you're trying to figure out what was in our minds, it's so
important for you to understand that this kid came in, was
interviewed by the homicide detective who was investigating the
homicide. So it was important to Detective Osborn. And he found
out, as he just stated in his own words, that it was all a
crock, right then and there. And so this was never about any
sort of--from our perspective, this was never about a murder in
any way, shape or form.
Mr. Wilson. We understand, but you raise an important
point. I think what Mr. Osborn was referring to, and please
correct me if I'm wrong, is that the facts of the murder made
it appear that Mr. Pearce had not seen what he said he saw. Is
that what you referred to as a crock?
Mr. Osborn. Yes. It would mean that he fabricated the
story.
Mr. Wilson. But, Mr. Osborn, you don't have any knowledge
one way or the other about Mr. Pearce's observations about Lisa
McCann offering him money. You don't know whether that's true
or not true, do you, at this point?
Mr. Osborn. No, I don't.
Mr. Wilson. Ms. Cagle, do you know whether that's true or
not true?
Ms. Cagle. No.
Mr. Wilson. Should you know whether that's true or not
true?
Ms. Cagle. I guess that would be your judgment. I guess
you're saying I should know that. I'm saying I have no
recollection of that.
Mr. Wilson. No, I'm not. It just goes to a question that we
have. And that is you were investigating something in your
office and you spent approximately a year following up leads
and nobody has said anything about what should have been done
in terms of investigating the allegations. But there was a
piece of what may have been exculpatory evidence or interesting
evidence that went toward whether one of the principal
witnesses in this case had been trying to frame somebody for
murder, and so our question I think is boiled down to: With all
of the interviews you conducted, would it not have made sense
for one question to have been asked about Ms. McCann, why are
you involved in an effort to frame Mr. Gersten for murder?
Ms. Cagle. Sure, and the issue would have been McCann,
whether or not she really did solicit Wayne Pearce to commit
perjury, I guess would have been the issue, and should there
have been a followup question to that and was there. I don't
really have any knowledge of that. I have looked at the file. I
don't see anything in the file that shows that there were
followup questions. But I'm not sure that means there weren't.
You know what I'm saying? Very easily some of the people
involved could have followed up on some of that, asked a
question here or there. But if you're asking me whether or not
I know, whether or not the investigator involved did ask any
followup questions to Lisa McCann about that issue, I don't
know.
Mr. Wilson. I understand. But when Mr. Pearce made the
observation, the FBI trying to set up the man for something he
didn't do, do you know what Mr. Pearce meant? I think you said
you don't know much about this, so maybe the answer is no, but
do you know what he meant?
Ms. Cagle. I'm not sure I understand the question.
Mr. Wilson. When Mr. Pearce's statement was taken by Mr.
Osborn, one of the things that Mr. Pearce said was the FBI is
trying to set up the man for something he didn't do.
Ms. Cagle. I don't know anything about that.
Mr. Wilson. And that is one of the things we're looking to
try and understand. If at the time, if you had been standing in
the room with Mr. Osborn and Mr. Pearce and you had heard this
young man make a murder allegation and then recant and then one
of his justifications for that was I was offered money for this
and the FBI is trying to set a man up for something he didn't
do, wouldn't it have been a logical question to ask?
Ms. Cagle. If I thought there was any credibility
whatsoever saying this kid--saying the FBI was trying to set up
Joe Gersten in a murder, I would have definitely followed up.
Mr. Wilson. But even you raise the issue if there was
credibility. But even if you made the statement, would you not
have been curious as to why of all agencies the FBI--this is a
15-year-old street kid who is not--from reading his interview,
not a particularly savvy person, and he makes the observations
unprompted, the words weren't put in his mouth by Mr. Osborn.
He makes the unprompted observation the FBI is trying to set up
the man for something he didn't do. And my first question is
why would he even think of the FBI? And I don't know the
answer. I just legitimately don't know the answer.
Ms. Cagle. Me either.
Mr. Wilson. But if you had been there at the time, would
you have asked the question, what do you mean, Mr. Pearce?
Ms. Cagle. Sure. Detective Osborn may have asked him that.
I don't know.
Mr. Wilson. Mr. Band--and we don't have to go further on
this--would you have asked the question, what do you mean, Mr.
Pearce?
Mr. Band. Perhaps.
Mr. Wilson. Perhaps. Fair enough. That's a fair answer. Mr.
Gregorie, would you ask what did you mean, Mr. Pearce?
Mr. Gregorie. The only thing Mr. Pearce was there to talk
about was the murder. So when he said he was trying to frame
him for something he didn't do, he was clearly talking about a
murder. He wasn't talking about anything else.
Mr. Wilson. So the answer is yes?
Mr. Gregorie. The answer is no. I wouldn't have asked him
any further questions. He said that's what he was doing.
Mr. Wilson. Well, that's interesting. Mr. Osborn, has
anybody ever made an allegation and then recant and you have
doubted their recantation? For example, Mr. Pearce said I saw
something, and then he comes back and says, well, I don't know
about this, I didn't see it. Is that the end of the issue for
you?
Mr. Osborn. After they recant?
Mr. Wilson. Yes.
Mr. Osborn. Not always, no.
Mr. Wilson. Now, one of things, and we'll get to this
perhaps a little bit later, but apparently, Mr. Osborn, you
spoke with Ms. Cagle about the murder allegation, is that
correct?
Mr. Osborn. Yes, I did.
Mr. Wilson. And you wanted to speak to Mr. Gersten about
this allegation, did you not?
Mr. Osborn. I did.
Mr. Wilson. And from your report you have written that Ms.
Cagle asked you not to talk to Mr. Gersten about the murder
allegation, is that correct?
Mr. Osborn. That is correct.
Mr. Wilson. Ms. Cagle, do you remember whether you
instructed Mr. Osborn not to talk to Mr. Gersten about the
murder allegation?
Ms. Cagle. I don't have any current recollection about my
interactions with Detective Osborn. But in reading the report,
it's very likely I would have said something like that, because
if I had a conversation with the detective and he was doing
something and we were involved in an investigation prior to him
going and confronting the subject, references something, it
would be, you know, a normal course of conduct for me to say,
Detective Osborn, we're having a meeting on Monday. Let's not
go talk to him until after we see where we're at and what's
going on.
Mr. Wilson. Thank you. We can resume this a little bit
later. That's half of my time.
Mr. Shays. Do you want to use any of your time now? Let me
say this. I had the opportunity to use the restroom. You all
haven't. I'm going to have a 15-minute break. I'm going to sit
down with Mr. Waxman. We're going to determine when we're going
to conclude this hearing and what other lines of questions
we're going to have. So is the cafeteria open downstairs? I
think it is. There's food downstairs.
Let me say we will be sharp at 2 o'clock. We will be sharp
at 2 o'clock. OK, so we are recessing until 2.
[Recess.]
Mr. Shays. We're back in session, and the witnesses are
under oath. Let me explain to the witnesses that I have gone
through only 5 pages of 23 pages of questions. And I am more
than happy to stay late, but we're not going to do all of those
questions. But what I will be doing is I will be asking you
about the equivalent of probably five more pages of questions
and then what we will be doing is sending you in a week the
remaining questions and having you fill them out. So that's
what we will be doing. The counsel only has 15 minutes left in
his questions. The minority counsel has 30 minutes. I will ask
my questions. We'll have minority counsel. You can interrupt
every 5 minutes if you want or whatever, Mr. Waxman, and we
will have our counsel, I guess, go first. Is that what you
prefer? And then their counsel and then Mr. Waxman, and I will
just conclude with maybe some brief comments and then we'll get
on our way.
So it's not an incentive to try to have you answer shorter
answers but where possible, it would be appreciated if
ultimately we're going to get to a conclusion. I am going to
start and I am going to have counsel wait until I'm done. But
at any rate I have taken about 10 pages out of the questions,
about half. Mr. Band, please take a look at exhibit 3, and I
would like to know is this your handwriting?
[Exhibit 3 follows:]
[GRAPHIC] [TIFF OMITTED] 76596.035
[GRAPHIC] [TIFF OMITTED] 76596.036
Mr. Band. I believe it is, Mr. Chairman.
Mr. Shays. Is this your handwriting?
Mr. Band. Yes, I believe it to be my handwriting.
Mr. Shays. It is a little hard to read here, but Mr. Band,
does the fact you took such copious notes not indicate that you
thought the false allegation was significant?
Mr. Band. I'm sorry, I didn't hear you.
Mr. Shays. I'm sorry, I will speak a little louder. Does
the fact that you took such copious notes not indicate that you
thought the false murder allegation was significant?
Mr. Band. No, I think most of my notes are fairly copious.
I would not attribute anything more than that.
Mr. Shays. But you have taken a look at this document?
Mr. Band. Yes.
Mr. Shays. And now that your memory has been somewhat just
brought up to date, how did you learn that Gersten had falsely
been accused of murder?
Mr. Band. Again after 10 years my recollection is somewhat
refreshed by my notes. Apparently I learned of it through
Detective Osborn's report of May 7, 1992. My estimation is I
did not read that report till either late June or early July of
that year.
Mr. Shays. Mr. Osborn, did you talk to Mr. Band about these
allegations?
Mr. Osborn. I'm not 100 percent sure what the conversation
was with Mr. Band about this case. If we spoke it would have
been very briefly and it was probably, my recollection recalls
that I did see him the same day I talked to Ms. Cagle and I
brought the report.
Mr. Shays. Mr. Band, to whom did you speak about the false
murder allegation? Did you talk to Mr. Gregorie, Ms. Cagle,
Karen Jacobson, Ray Havens, Ron Olson?
Mr. Band. I don't believe I spoke to any of those people
about the homicide allegations.
Mr. Shays. Did you ever have a discussion with Detective
Mike Osborn about the murder allegation?
Mr. Band. I was a homicide prosecutor. I'm sure, and I know
this to be true, that I met with Detective Osborn probably
hundreds of times during the course of our affiliation. I have
no independent recollection of discussing the Gersten homicide
allegation with Detective Osborn.
Mr. Shays. OK. I am going to ask all three of you, so if
you all would listen to this question I will not have to repeat
it three times. When was the FBI first asked to help question
witnesses on this sex and drugs allegation?
Mr. Gregorie. I never asked the FBI to do anything in this
case.
Mr. Band. I have no idea.
Ms. Cagle. I don't know.
Mr. Shays. Ms. Cagle, is yours on?
Ms. Cagle. Hello? Now it is.
Mr. Shays. Sorry. And the answer is?
Ms. Cagle. I don't know.
Mr. Shays. But Mr. Gregorie, you had mentioned that the FBI
is invited in when there is--I think it was you--invited in
when there is a politician involved. So you seemed like you're
surprised you didn't invite them, but yet you're acknowledging
that they get invited. Straighten me out here. You have an
opportunity. Just tell me.
Mr. Gregorie. The local police officers told me that they
had called in the FBI, that they had talked to the FBI. I never
talked to the FBI, the FBI never brought me any information and
they never came to me. If you look at all the sworn statements,
you will see who was present, you will see no FBI agent was
present. The investigation was done by our own internal State
attorney's office investigators. George Ray Havens, who was the
deputy at the Marshals Service and now is at the Federal
Training Center in New Mexico, I think, handled the
investigation. So to my knowledge I never gave any instructions
to the FBI nor did the FBI call and ask me for them.
Mr. Shays. All three of you have testified that none of you
asked, you did not know when the FBI was brought in. Is that
true, all three of you have basically responded?
Ms. Cagle. My recollection is they were called by the local
police initially when it happened.
Mr. Shays. Now, asking again all three of you, did you
coordinate or seek to coordinate with the Federal investigation
of Gersten?
Mr. Gregorie. To my knowledge I had no idea what the
Federal Government at that point was doing.
Mr. Shays. You knew----
Mr. Gregorie. Talking about 1992?
Mr. Shays. Yeah.
Mr. Gregorie. At that point I had no idea what, if any,
investigation the Federal Government had.
Mr. Shays. OK, Mr. Band--so you didn't coordinate or seek
to coordinate with the FBI or the Federal Government?
Mr. Gregorie. No. I think at most somebody may have called
me at one time and asked me something from the U.S. attorney's
office or from the FBI, although I don't have any real
recollection of that. I don't want to say absolutely 100
percent. It's 10 years ago, Congressman, but I have no
recollection of anyone from the Federal side calling me on this
case.
Mr. Shays. Mr. Band.
Mr. Band. Again, Mr. Chairman, I was on the other side of
the law. Mr. Gersten was my witness. Anything going on had to
do with the taking of his car, that the Federal Government to
my knowledge was not involved in my part of this whatsoever,
nor did I really use any agent.
Mr. Shays. How was the FBI involved?
Mr. Band. I don't know. To this day I don't know their
involvement other than what I have learned during the course of
this hearing.
Mr. Shays. Ms. Cagle.
Ms. Cagle. My recollection is that the local police called
the FBI initially and that subsequent to that our investigator
did the investigation.
Mr. Shays. And you didn't coordinate or seek to coordinate
any of this investigation with the FBI?
Ms. Cagle. No. In fact, I think it was more a subsequent
thing. It wasn't that anybody did anything together. I think
they were initially called and then we took it over.
Mr. Shays. Why bring in the FBI, Mr. Gregorie?
Mr. Waxman. We can start a new 5-minute round.
Mr. Shays. Yes, I'm sorry.
Mr. Gregorie. Again, Congressman, when the local police
have a case again a local----
Mr. Shays. Excuse me 1 second.
Mr. Gregorie. I'm sorry.
Mr. Shays. Thank you.
Mr. Gregorie. When the local police have a case against a
local politician, especially one who has control over the
county police department, they get nervous about being directly
responsible for the investigation. So they will often call in
the FBI rather than being the one pointing the finger at a
politician, which may result in their being assigned.
Mr. Shays. Mr. Band.
Mr. Band. The question was? I apologize.
Mr. Shays. These are all for all three of you. And if you
can--I won't try to keep saying them twice and we will get out
sooner. Why bring in the FBI?
Mr. Band. I have no clue. Again on my side of the wall Mr.
Gersten was the victim. I was looking to prosecute Ms. Lira and
Mr. Elswick.
Mr. Shays. OK, Ms. Cagle.
Ms. Cagle. I don't know why they called them.
Mr. Shays. So in all cases none of you know who made that
decision other than you believe it was the local? OK. Did you
discuss the case with any FBI agent? That's to all three of
you.
Mr. Gregorie. I have no recollection of talking with them.
I must tell you that I went from the State attorney's office to
the U.S. attorney's office. So I have talked with an awful lot
of agents over the last 9 years. But to the best of my
recollection no FBI agent that I remember talked to me about
this case.
Mr. Shays. Mr. Band.
Mr. Band. I have no recollection of speaking with any agent
of the Bureau in regard to this case.
Mr. Shays. Ms. Cagle.
Ms. Cagle. I don't remember.
Mr. Gregorie. Congressman, if I may, I want to make it
clear. When I went to the U.S. attorney's office, then there
may have been discussions with the FBI agent. That would have
been 1994, 1995, well beyond this incident.
Mr. Shays. Do you know when Michael Bonner first started
working on any Gersten matter?
Mr. Gregorie. I have no idea.
Mr. Band. No idea.
Ms. Cagle. No idea.
Mr. Shays. Were any of you aware of what he was doing?
Mr. Gregorie. At the time? No.
Mr. Band. No.
Ms. Cagle. No.
Mr. Shays. When we interviewed Mr. Bonner, he told us that
some of those who brought allegations of wrongdoing by Mr.
Gersten were later indicted. Do you know of anyone who brought
derogatory information forward about Mr. Gersten who later got
indicted?
Mr. Gregorie.
Mr. Gregorie. If I may consult just one moment?
Mr. Shays. Sure.
Mr. Gregorie. Congressman, there is a problem with rule
6(e) in the Federal Rules of Criminal Procedure which prohibit
us from discussing grand jury matters. There is a transcript of
a proceeding involving a defendant named Grigsby, who was tried
and acquitted in Miami in two separate cases involving the
port. That's all I can tell you and stay within the Rules of
Criminal Procedure.
Mr. Shays. Mr. Band.
Mr. Band. I prosecuted Ms. Lira and Mr. Elswick for crimes,
for a crime unrelated to Mr. Gersten. However, I did prosecute
Mr. Elswick----
Mr. Shays. Let me just clarify those were two of the people
who were making an allegation against Mr. Gersten.
Mr. Band. That is correct, as I understand it, but I did
prosecute Mr. Elswick for the extortion attempt of Mr. Gersten
and his attorneys.
Mr. Shays. Ms. Cagle.
Ms. Cagle. I don't know.
Mr. Shays. Did you ever see any of the FBI write-ups of
their interviews? Did you ever discuss the FBI interviews of
the sex and drug witness with the FBI?
Ms. Cagle. No.
Mr. Band. No.
Mr. Gregorie. Not that I can recall.
Mr. Shays. We are moving along quite nicely. Thank you. Mr.
Band, could you explain the Chinese wall that was set up during
the Gersten investigation? What is that all about?
Mr. Band. What is now referred to as an ethical wall
referred to in case law and I believe in the Justice Department
as well, for a long time, always the Chinese wall. It is
designed primarily when a governmental agency, a prosecutor's
office has individuals they are prosecuting or investigating
that are both subjects of the investigation as well as----
Mr. Shays. Excuse me. I'll let you finish your answer, I'm
sorry. Please finish your answer.
Mr. Band [continuing]. As well as perhaps victims or
witnesses to an investigation. In this particular case, as I
have put this together in retrospect, Mr. Gregorie had Mr.
Gersten as a subject of his investigation involving the filing
of a false police report. I on the other side of that wall was
engaged in the investigation of the taking of Mr. Gersten's
car. Mr. Gersten therefore was my witness. My targets were Ms.
Lira and Mr. Elswick. It is designed again to preclude what has
become the castigar line of cases of certainly a recent
vintage. I am sure the Chair is--well, the Ollie North
situation is probably the best example of castigar.
Mr. Shays. I remember mostly the potted plant.
Mr. Band. I have a few behind me now.
Mr. Shays. They are doing a fine job.
Mr. Shays. We will go for another 5 minutes. Mr. Gregorie,
is that consistent with your recollection?
Mr. Gregorie. I think what you have to understand is that
Florida has a strange law that in Florida as soon as you
subpoena----
Mr. Shays. You also have strange palates.
Mr. Gregorie. Yes. Under Florida law when you subpoena
somebody you automatically give them use and derivative use
immunity. In this case we had a specific project because we had
both the victim and a witness involved in this case. Mr.
Gersten was either the victim to the car theft or a victim to
an armed robbery, and at the same time the people who were the
defendants in that case were witnesses to Mr. Gersten's false
statements and using crack cocaine and prostitution. In order
to protect against crossing over that line, putting tainted
information into the hand of the investigators and prosecutors
who would try the two different cases, you have to build a
wall. And so I did not disclose to Mr. Band the sworn
statements, immunized statements of the prostitutes, the crack
dealers, etc., and he did not and would not have--unfortunately
Mr. Gersten never testified, but if he had he would not have
disclosed to me what it is that Mr. Gersten said in his
testimony.
Mr. Shays. One of the bizarre things, you brought up this
whole issue of common sense. Help sort out for me why we would
believe the people who stole the car, who were the drug dealers
and the prostitutes, when the person whose car was stolen is
then the target. You talk about him being both the victim and
the target. And it's to me--I have a hard time getting beyond
that. I mean, what would be the logic--and there may be, but
what would be the logic of Mr. Gersten having you arrest people
and find his car if in fact you know he did those things?
Mr. Gregorie. At 10 p.m. on April 29 Mr. Gersten found
himself between a rock and a hard place. His car was gone. His
briefcase with all of his important legal papers and the
pictures we told you about, his wallet with all of his credit
cards, his gun, his commissioner's badge and his brand new
clothes were gone. He had to report them stolen. Otherwise a
number of things could have occurred with those items, and he
knew he couldn't have that happen. In order to do that, he had
to report the car stolen. On the other hand, he did not want to
tell anybody that he was in a crack house smoking dope and
having sex with prostitutes. So in order to do it, he had to
say the car was stolen from in front of his house, and this is
where common sense came into me saying they may be prostitutes
and crack addicts but the likelihood of them being on Hardy
Road in Coral Gables on a late spring evening wandering down
the street and finding Mr. Gersten's car with the keys in the
ignition and all of those items still in the car doesn't make
common sense.
Mr. Shays. Well, there's a lot that doesn't make common
sense here, that's for sure. Mr. Band, what is your
understanding of the reason why a Chinese wall was established?
Were you a participant in the discussions leading to the
creation of the wall?
Mr. Band. The purpose of the wall, as explained by Mr.
Gregorie, was designed to protect the integrity of two separate
investigations, to protect Mr. Gersten's rights and the rights
as well of Mr. Elswick and Ms. Lira.
Mr. Shays. Were you a participant in that discussion?
Mr. Band. No, I was not a participant in that discussion at
all.
Mr. Shays. Whose idea was it?
Mr. Band. To this day I don't know.
Mr. Gregorie. It was my idea, Congressman.
Mr. Shays. Fair enough.
Mr. Gregorie. I will take credit for it or blame for it,
however you wish to look at it. It is a complicated procedure,
one that I had dealt with a lot in the Justice Department. I
was very familiar with it, so I was the one that decided to do
it.
Mr. Shays. Was the Chinese wall erected after any of the
car thieves were told they would not be prosecuted for the
theft of Gersten's car?
Mr. Gregorie. No, it was constituted before that. I think
again this has been 10 years, but if you look back on the
advice of rights I gave them, I may not have done it very
artfully but I'm pretty sure I told all of them although they
couldn't be prosecuted for what they were telling me, there was
a possibility that somebody else who didn't know about their
testimony could use it against them.
Mr. Shays. Mr. Band, did you have any communications with
Richard Gregorie about the Gersten case after the Chinese wall
was established?
Mr. Band. No. Well, just to be clear, no substantive
conversations about the case.
Mr. Shays. OK. What does that mean?
Mr. Band. What that means was I'm sure I had many
conversations with Mr. Gregorie.
Mr. Shays. But the word ``substantive'' about the case; did
you have any about the case?
Mr. Band. No.
Mr. Shays. Did you check with each other on prosecutorial
decisions regarding this?
Mr. Band. No.
Mr. Shays. If there were--OK. So there were no
communications other than other dialog that you had.
Mr. Gregorie, did you make any decisions about how Mr. Band
would run the investigation on his side of the Chinese wall?
Mr. Gregorie. Absolutely not. So it was clear, Congressman,
I was three floors different from Mr. Band. I might see him
walking through the elevator or going through the courthouse,
but other than that we had no contact.
Mr. Shays. OK. I am sorry, I am just going to ask you to
make that comment again. I apologize.
Mr. Gregorie. OK. I was three floors away from Mr. Band and
we were on different units. I was in the Public Corruption and
Organized Crime Unit. He was in the unit Felony as Major
Crimes. We did different kinds of cases. We would have only
seen each other if we passed each other getting on the elevator
or maybe walking through the courthouse.
Mr. Shays. Did you ever offer any input on what he should
do in this investigation, and when and what? And the answer is
no?
Mr. Gregorie. Absolutely not.
Mr. Shays. Mr. Band, did you confer with Mr. Gregorie about
whether to accept Mr. Sharpstein's offer for Gersten to provide
limited testimony about the theft of the car and how do you
explain the notation----
Mr. Band. Mr. Chairman, I apologize. I didn't hear part of
that question.
Mr. Shays. I don't blame you. I ran two sentences in. Let's
put exhibit 13 up. Don't put it up yet. Just answer the
question, which is, Mr. Band, did you confer with Mr. Gregorie
about whether to accept Richard Sharpstein's offer for Gersten
to provide limited testimony about the theft of his car?
Mr. Band. I don't recall any conversation with Mr. Gregorie
at all about any conversation had or any offer made by Mr.
Sharpstein.
Mr. Shays. Let's look at exhibit 13 and let's see what we
see here. Exhibit 13, could you get it for me?
It just says ``spoke with Dick, no.'' what does that mean?
Who is Dick?
[Exhibit 13 follows:]
[GRAPHIC] [TIFF OMITTED] 76596.054
Mr. Band. May well be Mr. Gregorie. There is apparently--I
don't know the context of this. Apparently it's a fax from Mr.
Sharpstein in regard to Mr. Gersten but--oh, actually Ms. Cagle
points this out, and she may be--right, it says I spoke with
Dick. It's Dick Sharpstein. I really don't know the context of
this.
Mr. Shays. Fair enough. Fair enough.
Did the State attorney know of any communications between--
hold on 1 second. Never mind. Was the Special Agent Bonner kept
informed of what was going on in the investigation on both
sides of the wall, Mr. Gregorie?
Mr. Gregorie. Special Agent Bonner?
Mr. Shays. Yes.
Mr. Gregorie. We didn't talk to Bonner.
Mr. Shays. OK.
Mr. Band. I have no recollection nor would I have a need to
talk with Agent Bonner, and I don't recall. I believe I know
Agent Bonner. I may well have worked with him on other cases,
but I have no recollection of speaking to the agent in regard
to this case.
Mr. Gregorie. Again, Congressman, I make clear I have no
recollection of talking to him during this time period. Again I
may have worked with Agent Bonner years ahead of this, but not
at this time.
Mr. Shays. Fair enough. Ms. Cagle, which side of the wall
were you on?
Ms. Cagle. The same side as Dick Gregorie.
Mr. Shays. Pardon me?
Ms. Cagle. The investigation into the filing of the false
police report.
Mr. Shays. Any other questions--who supervised Mr. Band?
Who would have supervised Mr. Band if Ms. Cagle wasn't
supervising?
Mr. Band. I don't believe I had a supervisor in regard to
this. Probably should have but I didn't.
Mr. Shays. All right. Who knows. We have basically got a
page and a half left, two pages at most, and I think we're
making progress here. Mr. Band, Mr. Gersten--and this is in
regards to the perjury issue----
Mr. Band. In regard to what issue, I'm sorry?
Mr. Shays. In regards to the perjury issue.
Mr. Band. All right.
Mr. Shays. If Mr. Gersten had answered your questions and
had denied the account of the events given by the car thieves,
what would you then have done in relation to prosecuting the
car thieves?
Mr. Band. If he gave me a full and complete statement which
I believed to be truthful, I would have prosecuted the thieves.
Again, I don't know if they were thieves or robbers.
Mr. Shays. Yeah. What would you then have done in relation
to the conflict of evidence between Gersten on the one hand,
McCann, Lira, Elswick, and Maldonado.
Mr. Band. Maldenado? I would have done nothing in that
regard, but again that did not reflect upon my targets, Ms.
McCann--I'm sorry, Ms. Lira and Mr. Elswick. I was looking at
prosecuting them for either the robbery or the theft of that
automobile. So in regard to the allegation surrounding the
crack house or the use of the crack or the sex had no never
mind to me. Had I believed him, we would have prosecuted Ms.
Lira. Had he given me cause to believe him, had he given me a
statement, I would have prosecuted Ms. Lira and Mr. Elswick.
Mr. Shays. Would you have considered charging Gersten with
perjury?
Mr. Band. No. Presuming truthful testimony, there would be
no need.
Mr. Shays. In his affidavit Gersten's then lawyer, William
Richey, said that Ray Havens, Richard Gregorie and Karen
Jacobson, ``made it absolutely clear that if Gersten were to
give testimony that deviated in any way from what Mr. Havens
and Mr. Gregorie were positive had happened that evening, then
Mr. Gersten would be charged with perjury.''
Let's look at that. That's exhibit 17. I want to know, is
Mr. Richey's affidavit incorrect, wrong, misleading, what? How
would you characterize it?
[Exhibit 17 follows:]
[GRAPHIC] [TIFF OMITTED] 76596.060
[GRAPHIC] [TIFF OMITTED] 76596.061
Mr. Gregorie. Well, as you see this says, At the meeting
Mr. Gregorie and Mr. Havens, on--regarding April 29th. You'll
see attached to my materials, I provided you a letter. I
invited Mr. Gersten to come in and give us a full statement of
what happened. What I told Mr. Richey is what I tell all
witnesses: You are going to have to come in and tell me the
truth because if you lie to me I'll charge you with perjury. So
I realize you're between a rock and hard place Mr. Richey. Your
client doesn't want to say that he was in a crack house,
smoking coke, but if that's the truth, then he's going to come
in and tell us that. And if he lies, then we'll charge him with
perjury. So I believe that was the initial interview, initial
meeting he had with us, and that's what I told him after I
invited him to come in.
Mr. Shays. I'd like you to take a look at the affidavit.
I'm sorry, I should have thrown that out first and then I'd
like you to comment on it. What he's saying is quite specific,
they made it absolutely clear--on citation 5--they made it
absolutely clear that if Mr. Gersten were to give testimony
that deviated in any way from what Mr. Havens and Mr. Gregorie
were positive had happened that evening, then Mr. Gersten would
be charged with perjury. They very clearly meant exactly what
they said. How would you--just comment on that.
Mr. Gregorie. So if you look at the paragraphs earlier,
that meeting occurred on May 21, 1992. This was merely a couple
of weeks after the incident. We were still in initial
investigation, and in fact Mr. Gersten was still off in Europe
somewhere at the time. My invitation, I was talking to him
about, look, I'd like to have your client come in. Again,
remembering the law in the State of Florida being that if I had
to subpoena him I'd have to give him immunity. I didn't want to
do that.
So I was inviting him to come in, and what I told Mr.
Richey is what I would tell all witnesses. We had done a bit of
investigation up till that point. We had been able to establish
time. We had interviewed the owner of the clothing store and
knew that Mr. Gersten was there at 6:30 at night. We had gotten
a number of other records, so we knew where he was. What I told
Mr. Richey is what I'll tell all witnesses: I'm going to call
him in and ask questions. You don't know how much I know. So if
you're lying to me, I'll charge you with perjury if you lie.
And I advise all witnesses of that in any proceeding in which I
take their testimony.
Mr. Shays. So you don't dispute the affidavit but you put
an interpretation--and I'm not saying misinterpretation but you
are explaining what you meant. But first, you don't dispute
this affidavit basically?
Mr. Gregorie. I dispute it only in the sense that what is
being said is being taken out of context. You have to know the
context of it. Mr. Gersten wasn't there. I was inviting him to
come in to testify without a subpoena, without immunity, and
what I'm saying to Mr. Richey is if he comes in without this
immunity he's going to have to tell us the truth, because if he
lies to me I'll prosecute him for perjury. And I think I told
him, look, we've done some investigation, we know some of the
times, we've talked to a number of people. If he's lying to me,
I'll prosecute him.
Mr. Shays. Let me just ask you, this is an affidavit and
it's under oath? It's under oath. Mr. Havens and Mr. Gregorie
made clear--I'm reading citation 5. Mr. Havens and Mr. Gregorie
made clear their desire for Mr. Gersten to come to Mr. Havens'
office and give a full statement, under oath, confessing to
what they represented to be the true events of that evening.
They made it clear that if Mr. Gersten were to give testimony
deviated in any way from what Mr. Havens and Mr. Gregorie were
positive had happened that evening, then Mr. Gersten would be
charged with perjury. They very clearly meant exactly what they
said.
Now, is this an accurate statement and you want to add to
it or subtract to it, or is there something said here that's
simply not correct?
Mr. Gregorie. Mr. Richey is a very good criminal law.
Mr. Shays. OK.
Mr. Gregorie. He is an advocate. He's writing this as the
advocate for Joe Gersten. What he was told, and I will say to
you again, was we have been doing investigation, we have gotten
records, we've talked to witnesses. If your client comes in and
lies to us and doesn't tell us the truth, we'll prosecute him
for perjury.
Mr. Shays. And you had a pretty good sense of what the
truth was, at least in your mind?
Mr. Gregorie. Well, at that point, I think we had done
enough investigation, so I was satisfied and my common sense
told me that it didn't make sense what he was claiming.
Mr. Shays. But think about it in the sense, I find it a
little curious, you basically chose not to prosecute?
Mr. Gregorie. Yes.
Mr. Shays. So what you thought to be the truth wasn't the
truth.
Mr. Gregorie. Congressman, there are an awful lot of times
that I think somebody is guilty as can be and I still won't
prosecute that case because I'm not satisfied that there's a
good probability that I'll convict that person with proof
beyond a reasonable doubt.
Mr. Shays. So is this wrong; you wouldn't have prosecuted
him?
Mr. Gregorie. I didn't prosecute him.
Mr. Shays. OK. But I just want to know--I want to get back
to No. 5, and it's an important question as far as I'm
concerned. So I don't want to rush.
Mr. Gregorie. Sure. Oh, please.
Mr. Shays. I want to know if No. 5 is accurate, and I think
you have qualified how you interpret it, but is this an
accurate statement?
Mr. Gregorie. I did tell Mr. Richey that if his client came
in and lied and that we had done a good deal of investigation,
if he came in and gave a statement that did not comport with
the evidence I had, that I would charge him with perjury.
Mr. Shays. Well, you're saying it a little different,
because the way I read it is, it says you had a sense of
exactly what happened; and if it deviated from that, then you
would prosecute him.
Mr. Gregorie. Again, Congressman, Mr. Richey's a good
advocate. He's writing it on his client's behalf. I'm telling
you the same thing he's saying. It's just I'm telling you from
what I believe I said, and he's saying it to protect his
client.
Mr. Shays. OK. But the bottom line is you are not saying
that this statement is wrong? You're not saying that this
statement that he's presented is incorrect?
Mr. Gregorie. I'm saying it is put on an interpretation
beneficial to Joe Gersten.
Mr. Shays. All right. I'll live with that.
Mr. Waxman. I think I'll take a few minutes.
Mr. Shays. You can, sure. You can take 10, or whatever you
want. The gentleman has as much time as he'd like.
Mr. Waxman. I'm entitled to 5 minutes and then we'll see
after that. These witnesses, the prostitutes and the pimps and
the 15-year-old kids who make accusations and retract them, is
this an unusual thing to have people like that make these kinds
of statements? In other words, I'm trying to figure out the
context in which you did your work in those days. One would
think this is an isolated case and you should have given more
weight to this, less weight to that. But don't you have--I'll
start with you, Mr. Osborn. Don't you have pimps and
prostitutes and junkies come in all the time and say things,
and sometimes they're true and sometimes not, and you have to
make some evaluations of that?
Mr. Osborn. Well, unfortunately, we do have credibility
problems with a lot of witnesses in the city of Miami, but you
have to corroborate what they say or disprove and followup on
it.
Mr. Waxman. So whatever anybody says, you've got to
evaluate whether it's true or not. Now that's for you. I assume
for prosecutors you've got to decide whether it will hold up in
court.
Ms. Cagle. Absolutely true. In every case we deal with
witnesses, and you have to evaluate the witness and decide
whether or not this piece is credible, are they telling the
truth on this piece. It's an everyday occurrence, evaluating
the credibility of witnesses in your cases.
Mr. Waxman. Mr. Gregorie, you looked at the accusations
against Mr. Gersten and the kinds of people who were making
them and made an evaluation not to prosecute Mr. Gersten, not
because you didn't think he might have been guilty but because
you thought you couldn't get a conviction; is that an
accurate----
Mr. Gregorie. That's correct. Congressman, we are
constantly faced with the problem that if you're investigating
crime, that you're going to have to talk to criminals, and you
have to weigh exactly how bad they are. I have put on some of
the worst criminals in the United States for testimony in some
of the biggest cases tried in the United States. I do that by
corroborating those witnesses, by satisfying myself they're
telling the truth, by determining that what they have to say
comports with the other evidence in the case. And I am
satisfied that these witnesses would not have withstood cross-
examination based on their prior records, their addiction to
narcotics, their occupations, and their other statements in
this case.
These people were on Biscayne Boulevard. You have to be in
Miami to understand this. But Biscayne Boulevard, especially 10
years ago, was a place that was crack cocaine on the corners,
prostitutes standing in the street. It's a little better now,
not a whole heck of a lot, and there are con artists, fraud
artists, people like this on the street all the time. So the
witnesses we were dealing with were people who we knew were
real problems in terms of testimony, and I had to make the
determination would they be believable if I put them before a
jury.
Mr. Waxman. So I'm trying to think to myself, since this
hearing before the House of Representatives of the U.S.
Congress is being held on prosecutorial abuse, what theories to
look at. You didn't prosecute.
Mr. Gregorie. No.
Mr. Waxman. So then the question is, was it prosecutorial
abuse to bring the FBI in this case. You didn't bring the FBI
in the case.
Mr. Gregorie. No.
Mr. Waxman. Mr. Band, you think the FBI was brought in, or
Ms. Cagle, whatever you said, you thought they were brought in
by the local police officials because Mr. Gersten was a county
commissioner; is that correct?
Ms. Cagle. I believe that's what happened.
Mr. Waxman. Mr. Band, do you know anything other than that?
Mr. Band. No, I don't.
Ms. Cagle. But they didn't stay long because I don't think
they really have any jurisdiction. It was a State crime. It was
filing a false police report that was being investigated.
Mr. Gregorie. I have not seen the 302s, but I'd be
interested to see when the 302s end what's the date at the end,
because I don't think the FBI stayed in this case for more than
a few days. I'd be surprised if they did.
Mr. Waxman. So then I thought one theory that the
Republicans were advancing was that because the FBI was brought
in, that just showed how Mr. Gersten was set up to be
persecuted, but that doesn't seem to sound right. So then the
other part of it was the prosecutorial abuse was not giving Mr.
Gersten information that would have been exculpatory; that was
the accusation. And I'm trying to think of what that was. Do
any of you have any idea what the exculpatory information
that----
Mr. Gregorie. Well, I guess it's Detective Osborn's report.
Mr. Waxman. That's the report that was taken of Lisa
McCann; is that right, Mr. Osborn?
Mr. Osborn. No, sir. That's my synopsis of the initial
investigation when Wayne Pearce was first brought in. I did a
chronological breakdown of a chain of events that happened.
Mr. Waxman. Had charges been brought against Mr. Gersten,
he would have been given everything?
Ms. Cagle. Correct.
Mr. Gregorie. Most certainly. If the charges had been
brought, the Brady material that would have had to have been
turned over on those witnesses would have been mountainous.
Mr. Waxman. So he would have gotten all this had he been
prosecuted. But the claim is that he didn't get the exculpatory
information, which is from the garbled statements of witnesses
who were not considered sufficiently credible for their
testimony to stand if used for prosecution--he didn't have the
benefit of what they had to say.
Mr. Gregorie. I guess that's the allegation.
Mr. Waxman. And then we had particularly singled out this
last paragraph of this very long summary by Mr. Osborn where
Lisa McCann said yesterday, ``some kid asked me if I had some
rolling paper. I said, aren't you kind of young? It turns out
he's about 15 years old. He asked me if I knew about this
faggot got shot last week. He said the faggot was named
Champaign. He said a guy in a blue Mercedes shot him. He said
somehow Champaign got in the car. Champaign got his keys,
wouldn't give them back. The guy shot and killed him. He paid
the kid $300 to keep his mouth shut.'' So I'm trying to think,
were they talking about Mr. Gersten?
Mr. Osborn. That's not my report.
Mr. Waxman. Oh that's not your report.
Mr. Osborn. That's Bonner's report.
Mr. Waxman. Oh, I see. Well, it's not clear who they're
talking about, but it could have been Mr. Gersten. It could
have been someone else. We do know that Champaign was murdered,
right?
Mr. Osborn. We do know that; yes, sir.
Mr. Waxman. There was even less of a basis to say that Mr.
Gersten had something to do with that.
Mr. Osborn. Pardon me?
Mr. Waxman. There was even less of a basis to say Mr.
Gersten had anything to do with that murder than there was to
say that Mr. Gersten should be prosecuted for whatever. What
would you have prosecuted him on? What charge would you have
brought him on?
Mr. Gregorie. Solicitation of prostitution, false statement
on a police report.
Mr. Waxman. OK. You didn't have enough to bring a charge of
solicitation and all of that, and there was even less to say
that he might have murdered somebody.
Mr. Osborn. I had nothing to go on with the murder.
Mr. Waxman. So you have something that's so flimsy that
might even connect him to a murder that--it's so flimsy to
start with. And then the question is, not giving Mr. Gersten
the flimsiest of information that somebody said he might have
had connection with the murder was denying him what he should
have had, and therefore proves prosecutorial discretion under
the direction of Janet Reno. But we will leave that part out. I
just am having trouble.
Mr. Gregorie. Congressman, what's worse with that is that
had there really been some sort of conspiracy to frame him, why
wasn't this leaked out that he was involved in a murder
investigation? In fact, if we had made this information public,
had sent a letter to his attorney, it had become public under
the public records law in Florida, the newspapers all would
have had a report. There would have been a headline in the
newspaper the next day saying Joe Gersten suspected of murder.
That didn't happen because nobody credited this
information. I don't even remember it ever coming across my
desk and seeing it, although the report--there is some evidence
that somebody gave me a copy of the report. I don't ever
remember having seen it. I have never talked to Detective
Osborn before today. I'm glad to see him but I never talked to
him before. So it seems to me, again, common sense would tell
you, if this really was a plot to smear Gersten, that this
murder information would have been in the newspaper, leaked out
to somebody, and we would have prosecuted him, except that
nobody even considered this information reliable after
Detective Osborn talked to the man 25 minutes.
Mr. Waxman. But he started the whole business by making a
complaint about his car being stolen, and that turned up all
these sordid events that seemed to have transpired. And then he
was asked to come in and testify, and he refused to do that.
All of this could have been cleared up by his testimony,
couldn't it?
Mr. Gregorie. That's correct.
Mr. Waxman. And then he appealed the decision that he
should testify and be given immunity from whatever he had to
say. And then he fled to Australia, as I understand it, where
he's seeking asylum on the basis that he's being politically
persecuted in the United States.
This is really quite amazing to me. I hope that we make
this transcript available to the officials in Australia who are
looking at whether he ought to be given asylum, because this
might help them further discern whether that's an accusation
that ought to be taken seriously.
But anyway, that's his accusation. But here we have the
accusations in the staff report by the Republican majority that
there's prosecutory abuse. And I still don't see why we should
take this whole matter seriously for a congressional hearing.
There's not even I don't know what--a scintilla of evidence,
nothing credible. And yet we have the U.S. Congress sitting and
holding a hearing all day. Well maybe we'll get more. I'm
rushing to judgment. I'll let the chairman proceed.
Mr. Shays. Thank you, Mr. Waxman. We all find bizarre
things. I find it bizarre that the person, when he makes a
complaint that his car is stolen by some incredibly
questionable people, that they then make a charge not that they
didn't steal the car but that they stole the car somewhere
else, and then everything unfolds there. And I find it
extraordinarily bizarre that the FBI is involved. When I was
growing up, I thought the FBI got involved in cases other than
this. So tell me, what is the legal right for the FBI to get
involved, Mr. Gregorie?
Mr. Gregorie. The FBI will often assist the local police
department in cases of sensitivity where there is a request by
the local police department and they can form a basis for that
assistance.
Mr. Shays. They couldn't come in unless there was that
request?
Mr. Gregorie. They'd have to be requested.
Mr. Shays. And I'm going to conclude my questions with just
asking about the FBI, and I may have some questions after Mr.
Wilson asks his and after minority counsel asks theirs, but I'm
basically coming to a close here. I want to be clear from each
of you as to what the extent was of the FBI involvement.
Mr. Gregorie. What the extent of the FBI participation?
Mr. Shays. Yes.
Mr. Gregorie. I had no dealings with the FBI on this case.
Mr. Shays. Mr. Band.
Mr. Band. I had no dealings with the FBI on my part of this
case.
Mr. Shays. Ms. Cagle.
Ms. Cagle. I believe the local police called the FBI in to
help them the night they first obtained the allegation against
Mr. Gersten.
Mr. Shays. And then disappeared?
Ms. Cagle. Yeah. I don't have any recollection of dealing
with them much after that or at all after that.
Mr. Shays. Did your office, Ms. Cagle, have specific
guidelines on investigations involving public figures; in other
words, to avoid political interference or manipulation?
Ms. Cagle. I don't think we have any written guidelines to
that effect.
Mr. Shays. OK. So the issue with the FBI is just that it's
a casual thing that is up to not the prosecutors but up to the
police to decide whether they invite the FBI in?
Ms. Cagle. Yeah.
Mr. Shays. OK. I want to conclude because there was one
thing left dangling, and that is that basically we do not have
a document in our possession that says the money was paid. The
only document we have was a document that said on--it is
recommended that, and the name is crossed out, be paid $400 on
a one-time payment for information furnished. And this is a
document that we will provide in our questions. We also have
the documentation by the FBI agent that he in fact, to our
staff, paid the $400. But given that I don't have--paid the
$400 to Ms. McCann.
So what we will do is we'll submit that in writing to you
all as a question. And then my question about the
appropriateness will be asked, when we can establish to your
satisfaction that it was paid. So there won't even be a
hypothetical.
Mr. Gregorie. Mr. Congressman, so that it is clear, the FBI
regulations haven't changed. If an informant is given money,
two things have to happen. There have to be two agents present.
They both have to sign the receipt and the witness is given the
money. I would be amazed in this case if Bonner said he gave
that person, this prostitute, the money and there isn't a
receipt signed by the witnessing agent and Agent Bonner when
that money was handed over.
Mr. Shays. Right. And what we need to do is establish that
this document here makes reference to the $400. It says it is
recommended that, then the name is crossed out, be paid $400 on
a one-time payment for information furnished.
So what we will do, and I want the staff to be very clear
on this, when we send you your questions, we will state whether
there is proof, or isn't proof. We'll try to provide that
documentation, and then we want an answer to the question
because it's an answer that we want.
Mr. Waxman. I thank you for yielding to me. I think we
ought to find out more about this money.
Mr. Shays. That's what we've been trying to do, trust me.
Mr. Waxman. OK. So once we find out, to know everything
with as much certainty as we can about these events over 10
years ago, the suggestion here is that the FBI paid $400 to
somebody to frame Mr. Gersten. Is that what one can read into
this whole thing?
Mr. Shays. No, absolutely not. That would be a
mischaracterization. The issue is whether it was appropriate to
pay someone $400 after there was an allegation that she had
asked someone to go to the police and accuse the targeted
figure that he had committed a murder and the appropriateness
of that. That's the only thing that it means.
Mr. Waxman. So are we looking at the misconduct by the FBI?
Mr. Shays. Exactly.
Mr. Waxman. Why aren't they here?
Mr. Shays. I can tell you----
Mr. Waxman. Are we going to have another day of hearing on
this?
Mr. Shays. Well, you know what--possibly, possibly not.
Mr. Waxman. Could I ask Mr. Gregorie, because he seems to
have some knowledge about this.
Mr. Gregorie. Congressman, that was one of my concerns when
I was asked earlier on why I wasn't cooperating. Mr. Bonner
isn't here in public to explain what that $400 was for. Now,
that receipt, what you have there seems to be a withdrawal of
$400 from some fund that the FBI had. It is not an indication
that money was paid to anybody.
Mr. Shays. No, but you know, Mr. Gregorie, I agree with
that, and I agree that it is a question to be answered. And I
also, agree by the intensity of your responding to the
question, that I almost have an answer and that that, in fact,
would not be appropriate under certain circumstances, which was
really the basis for my question in the first place. It wasn't
a question about you, It was a question about the FBI. And it
was a question on whether there was something we needed to look
at here. That's all. It didn't involve you.
Mr. Gregorie. I understand, Congressman.
Mr. Shays. It involved your expertise.
Mr. Waxman. Can I be recognized?
Mr. Shays. Yes. The gentleman has 5 minutes.
Mr. Waxman. What were you going to say?
Mr. Gregorie. Well I'm concerned only insofar as, because I
understand FBI procedure, I would expect that if there was an
informant payment as that indicates then there should be a
receipt witnessed by another agent, and it would say who the
money was given to.
Mr. Waxman. I would hope we could find out how much this
investigation has cost the taxpayers of this country. As I
understand, the Republican staff may have been working on this
issue for a year. They've gone back and forth between
Washington and Florida. They've interviewed witnesses----
Mr. Gregorie [continuing]. It's nice in Florida in the
wintertime.
Mr. Waxman. And if all we're left with is a waste of $400
by the FBI, then I think somebody ought to do an investigation
of why this committee would waste thousands of dollars to try
to find out whether that $400 was used appropriately or not.
Maybe that's all we have left after--of course, if you look
at----
Mr. Shays. Would the gentleman yield just a second, like I
yielded to you?
Mr. Waxman. Sure.
Mr. Shays. I have been noticing you, Mr. Band, for a bit of
time, and there's lots of laughter. Should I misinterpret the
laughter----
Mr. Band. I apologize, Mr. Chairman.
Mr. Shays. Is this a joke to you?
Mr. Band. No, not at all.
Mr. Shays. OK. I misunderstood your laughter, and I'm happy
to know that it isn't that you don't take this seriously. Thank
you. I'm sorry.
Mr. Waxman. I was happy to yield to you and now, to reclaim
my time, I don't see how somebody can't laugh at this whole day
of hearing. I have never seen anything more absurd in my life.
I think the Republican staff has done such a disservice to the
Congress of the United States. I think this whole investigation
has brought into disrepute the idea that Congress can do an
investigation and it serves an important oversight and
investigative purpose. I just can't tell you how absurd this
whole thing is, and it's much healthier to laugh at it than to
cry, and I'm glad no one criticized me for laughing because
there are times during this hearing I can't help but laugh at
the absurdity of the circumstances.
I think we could go through the prison system. We're now
finding out with DNA testing that lots of people have been
convicted improperly, some have been executed for crimes that
were capital offenses, improperly. And what we have is an
investigation of prosecutorial abuse for not prosecuting,
especially not prosecuting a man who fled the country.
I suppose the decorum of the circumstances under which
we're meeting should require all of us to pretend like this is
serious, but I find it very hard to do that. And, again, the
irony of this committee and the Republican staff on this
committee investigating a man who presumably is the victim,
when he's one who's fled prosecution after we investigated the
Marc Rich case, and the irony again of this man being
persecuted because he's a public official who may have lied to
cover up sex and drug use, it really is astonishing to me that
all this money has gone into this investigation.
I'm not going to ask the witnesses to put on the record how
much money they've had to spend because it would be improper.
It's not our business how much money they have had to spend.
They're all here taken away from their employment, their
ordinary activities of the day to answer these questions. I
just think that before we get to a point of investigation there
ought to be more substance. If it turns out you pursue an
investigation and it's not worth pursuing, then you drop it,
but this investigation's been pursued and pursued and pursued
with dollar after dollar after dollar being shovelled after it.
I'm a liberal Democrat, but I don't like the waste of
taxpayers' dollars by those people who call themselves
conservatives. I guess I'm more conservative than they are,
because I don't think tax dollars ought to be wasted.
Mr. Shays. I don't know if I'm a liberal Republican or a
conservative Republican, but I always felt that liberal
Democrats cared about what happened when people were falsely
accused and then not prosecuted. And I've known liberal
Democrats and Republicans as well that sometimes have made the
accusation that you take a public official and you make all
these accusations and then you don't prosecute them, and you
all in a sense feel like you're going through the same thing,
and there is some irony, but that's what Mr. Gersten went
through.
And I heard the laughter. I happen to believe that he's
probably got some really despicable past, but usually what I
hear the ranking member say is you're innocent until proven
guilty, but Mr. Gersten evidently is guilty. He's guilty of one
thing. He's guilty of one thing. He's guilty of contempt of
court. He's not guilty of any of the crimes that he was accused
of by the pimps and prostitutes and everything else. He may
have been guilty, but as Mr. Waxman will point out to me quite
often, you're not guilty until you've been found guilty; and so
I understand that we have a disagreement as to the worth of
this.
I wanted to know why I was going to be here on Friday, and
we're here because two gentlemen here wanted to come and speak
before the full committee. And so you're here, and I'm here,
and I'm not complaining about it. You exercised your right. I
would have preferred that the committee staff could have asked
these questions to you under oath, and that didn't happen and--
--
Mr. Waxman. Would you yield on that?
Mr. Shays. Definitely would yield.
Mr. Waxman. I want to tell you that I'm pleased the
committee staff didn't have a chance to ask you questions under
oath in private and that you insisted on coming before a public
hearing of the committee. And after all, Mr. Gregorie
particularly, you're a very distinguished prosecutor of many
years' duration. You prosecuted Mr. Noriega, and you didn't see
a good enough reason to prosecute Mr. Gersten, and you were
faced with a committee staff report that accused you of
unprofessional conduct. That was an accusation that was made,
and then they wanted you to go into a private room and answer
questions?
I wish more people would insist on a full hearing so the
public can see the absurdity, rather than allow a staff lawyer
to abuse people in a room asking questions, because they don't
want to stand up and fight. Many believe that government is so
powerful, the Congress of the United States acting on the part
of the government has so many resources, that they might as
well just give in and be bullied into doing what those bullies
want them to do. Because that's what it is. It's bullying
people. So I think the best disinfectant is a public hearing,
and this is a very good public hearing to illustrate the
bullying and abusive tactics of this committee.
Mr. Shays. Mr. Gregorie, have we bullied you here today?
Mr. Gregorie. Congressman, I'm always glad to come here
before you and testify anytime you would like information I can
give you.
Mr. Shays. I'm asking you a very sincere question. Have we
been unfair to you today?
Mr. Gregorie. The report bullied me, Congressman. The
report wrote things without talking to me, without hearing the
testimony from other people. And I'm concerned also about poor
Mike Bonner, who is now representing the United States of
America in Africa; and I would hope when this committee is
through that they don't throw allegations at Mike Bonner
without investigating this thing thoroughly and don't make that
man, who is one excellent FBI agent, suffer because he gave the
testimony he gave to staff members, not here in public today.
Mr. Shays. Right. I'm just asking you if you were bullied
today, and your answer was, no, but you felt the report was
unfair to you. Have you been given the opportunity to present
your story here today?
Mr. Gregorie. And I thank you very much for it.
Mr. Shays. And I mean this sincerely.
Mr. Band.
Mr. Band. Mr. Chairman, you were most civil, and I
appreciate that. Was I bullied? I don't know if that's the
proper word. I think it held our office--my former office in
disrepute. I am surrounded by folks who have dedicated their
lives to public service. They were not given an opportunity
prior to the publication of the report to answer any questions,
to assist counsel, to assist this committee. And, as I
indicated preliminarily, had I been contacted by counsel before
the issuance of the report, I would have spoken with him. But
once that report was issued, given the bias, the tilt, the spin
of that document, the only proper place for me to address those
issues, indeed for all of us to address those issues, as
Congressman Waxman points out, is here in the open, in public.
Mr. Shays. Right, and Mr. Band I just make the point to
you, and that's why we need to have this hearing today, whether
or not you are--the one point I just would like to say to my
colleague, Mr. Waxman, who I have tremendous respect for, we
tried to conduct these hearings fair and give you the
opportunity to say whatever you wanted to say.
Ms. Cagle, I want to know if you felt bullied today.
Ms. Cagle. I would concur with Mr. Band. I thought the
staff report was extremely unfair. In fact, it called for I
think a bar investigation of my conduct. That will be the only
bar complaint referral I have had in 20 years of being a public
servant to the people of the State of Florida. So in terms of
the staff report, I felt it was unfair. In terms of this
hearing, I'm more than happy to come and answer your questions
anytime you ask.
Mr. Shays. Thank you.
I want to say something about the staff of this committee.
They work extraordinarily hard. They work hundred hour weeks.
They believed that information was withheld that could not be
explained, and they thought it was purposeful. I might as
chairman have made a decision that a report not be issued until
I was convinced that all sides had been asked questions, and
maybe that should have happened, maybe it shouldn't have. I
reserve judgment still. I know Mr. Waxman doesn't. But I have
never seen my staff or this staff bully anyone. But you may not
agree with their conclusions, and you may think they were
unfair, but as far as bullying I don't think that comes close.
I'd like to give our counsel the 15 minutes that he still
has left, and then the minority has their 15 minutes.
Mr. Waxman. Before you do that, just one observation. All
of these witnesses are here, and none of them fled the country
to avoid coming before Congress and answering questions.
Mr. Shays. And I'd like to say that the gentleman who left
to go to Australia wasn't a spy. He wasn't someone who had
taken $50 million. He wasn't a traitor to our country. He was
probably a man who has a past that he has some questions with,
and I agree with you, that for whatever reason, he's in another
country, and he should be here. So I concur with that.
Mr. Band. Mr. Shays, may I just briefly, because I'm not
sure----
Mr. Shays. Sure.
Mr. Band [continuing]. You understand this. The writ of
bodily attachment issued for Mr. Gersten extends only to the
borders of the State of Florida. He could be on the Georgia
line. Florida would have no jurisdiction, no right to seek help
to get him back within the jurisdiction.
Mr. Shays. For what? Not for stealing, not for murder, for
what?
Mr. Band. For contempt.
Mr. Shays. For contempt of court. Well, I would like to
confess to everyone here, I have been in contempt of court, and
I've even spent 7 days in jail. I think there's a big
difference than some of the other issues we're talking about.
Mr. Wilson.
Mr. Wilson. Mr. Gregorie, if we could just go back very
briefly to exhibit No. 17, and we will not spend long on this,
but Mr. Shays asked you a number of questions about paragraph
five, and I just wanted to ask you about this one sentence as
clearly as possible. Mr. Richey provided this sworn testimony,
said they made it absolutely clear that if Mr. Gersten were
able to give testimony--were to give testimony that deviated in
any way from what Mr. Havens and Mr. Gregorie were positive had
happened that evening then Mr. Gersten would be charged with
perjury. Is this a correct or an incorrect statement of fact?
[Exhibit 17 follows:]
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Mr. Gregorie. That's Mr. Richey's interpretation
representing his client of what was told him.
Mr. Wilson. I understand, but he's testified twice in court
to the same thing, and his interpretation is an incorrect
interpretation?
Mr. Gregorie. Well, now I'm--yes, it is an incorrect
interpretation. Because I do this with all witnesses that come
before grand juries, that come in to give sworn testimony of
any kind. I warn them that if you say something which is untrue
you will be prosecuted for perjury.
Mr. Wilson. That's fine. I was just trying to decide
whether you agreed or disagreed with the statement, and I think
it's fair to characterize you disagree with this statement. You
think it is incorrect.
Mr. Gregorie. I think it is tilted in favor of his client.
He is an advocate. He's a criminal lawyer being paid for by Mr.
Gersten. He is not going to write something that is to my
benefit. If I were to write the same thing about what happened
that day, and I'm telling you again what happened, we told him
we've done extensive investigation. We have subpoenaed
documents. We've subpoenaed other witnesses. We believed that
if your client comes in and says the same thing that is in his
police report, then he may be committing perjury, and we will
prosecute him for perjury. You've got to understand that
perjury is a very difficult crime to prove. You've got to have
a specific statement that says something which we can prove is
absolutely false. It's one of the most difficult crimes on the
books to prove.
Mr. Wilson. Fair enough.
If we could just turn briefly to exhibit No. 20. It's in
the book in front of you. It is a sworn affidavit that was
executed by an investigator, Ron Ohlzen; and we are not--we
don't want to go back and try and determine whether somebody
did or did not do something, but there's a very specific thing
we want to get to here. In the affidavit----
[Exhibit 20 follows:]
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Mr. Gregorie. You talking about 18?
Mr. Wilson. Exhibit No. 20.
Mr. Gregorie. Oh, I'm sorry.
Mr. Wilson. In this affidavit, Mr. Ohlzen states that Lisa
McCann could not have been correct when she said that Gersten
picked her up between 6:16 and 7 p.m. That statement is found
in the middle of the first page. He says, one witness, Lisa
McCann, told me that she was picked up by Joseph M. Gersten on
April 29, 1992, between 6:16 and 7 p.m. This time was estimated
by her and cannot be correct in view of the attached toll
records.
Do you have any reason to dispute Mr. Ohlzen's affidavit
here?
Mr. Gregorie. Oh, none whatsoever.
Mr. Wilson. OK.
Mr. Gregorie. I don't think Lisa McCann knew what time of
day it was at any time.
Mr. Wilson. Fair enough.
Now if you can turn to the second to last page of exhibit
20, please, there's a list of toll records here, and if you go
down four from the top of the telephone calls here, there's a
telephone call listed for 7:13 p.m. It's a number in Perrine in
south Florida. Do any of you here know who was called at 7:13?
Mr. Gregorie. Do you have a telephone number for that?
Mr. Wilson. Well, it's right next to the 7:13, yes.
Mr. Gregorie. I remember reading your report, and I
remember getting information that there is a staff member on
Gersten's staff, you mentioned the name in the report, and I
don't know if this is the same number you're referring to. So I
can't----
Mr. Wilson. Well, the--in exhibit 21, we have Mr. Ohlzen's
handwritten notes; and if you look at the--I believe it's the
fourth entry, 7:13, there's a listing for a Dorsey Desmond.
Now, do any of you know who Dorsey Desmond is?
[Exhibit 21 follows:]
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Mr. Gregorie. I don't.
Ms. Cagle. No.
Mr. Osborn. No.
Mr. Wilson. Did anybody interview Dorsey Desmond?
Mr. Gregorie. We tried to identify all of the people whose
numbers were here. This is 10 years ago. That name doesn't mean
anything to me today, but I would be very surprised if we
didn't determine who she was or somebody didn't go out to that
address and try to find out who she was.
Mr. Wilson. This is something you can help us. Because in
the records of the State attorney's office there's no interview
notes or indication of any interviews with any of these
individuals. It appears from the records, although we can't
tell this, that this was a call made when the car was in the
possession of the individuals who stole the automobile.
Mr. Gregorie. I don't know who she is, but at 7:40 there's
a call to Darlene Alexander, and that was one of the people on
Mr. Gersten's staff. So I--you know, I know we found that one,
but Desiree Davis, you'd have to ask the investigators. It
really is too long ago for me to remember.
Mr. Wilson. OK. Fair enough.
Briefly, we'll just turn to one other issue, and that will
be me finished.
Exhibit 3a is a copy of what Mr. Band indicated were his
handwritten notes.
[Exhibit 3a follows:]
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Mr. Band. I'm sorry.
Mr. Wilson. Mr. Band, if you could turn to exhibit 3a.
Mr. Band. 3a. OK.
Mr. Wilson. And in the first full entry on this page under
May 1 there's an indication that Lisa also in car, Joe at the
Laurel Motel. Do you have any recollection of what this refers
to?
Mr. Band. No, I don't. Again, these notes reflect what I
gleaned from Detective Osborn's report.
Mr. Wilson. Did any of you make any effort to determine
whether any of the witnesses indicated that the events from
April 29 actually took place at the Laurel Motel? I know
there's a lot of testimony that it didn't, but there is
indication that somebody testified that it did.
Mr. Gregorie. When they were first stopped, their first
explanation to the police was, we're just borrowing Joe's car.
He's back at the Laurel Motel. I think that was a lie in an
attempt to convince the police that they hadn't stolen the car,
that it belonged to somebody that they were friends with. I
have no information whatsoever that the Laurel Motel was in any
way involved in this case.
Mr. Wilson. OK. And I ask this question only because the
Laurel Motel is also the site for the allegation that Mr.
Gersten had murdered the transvestite at the Laurel Motel as
well, and so I bring this to you to ask the question whether
anybody wanted to check at the time and see if this was a
coincidence that needed to be thought about more.
Mr. Gregorie. I don't know what the Laurel Motel is, so I
can't help you with that one.
Mr. Wilson. Mr. Band.
Mr. Band. I have no association or knowledge of the
involvement of this Laurel Motel.
Mr. Wilson. Ms. Cagle.
Ms. Cagle. No recollection.
Mr. Wilson. Mr. Osborn, do you have any recollection of any
of the details that include the Laurel Motel?
Mr. Osborn. Well, the Laurel Motel is where Gregory Wellons
was staying along with some other people. So I spent quite a
bit of time there, yes.
Mr. Wilson. OK. Do you have any recollection, though, about
the statement that Mr. Gersten had any connection with the
Laurel Motel?
Mr. Osborn. Just from Wayne Pearce and him--seeing him at
Biscayne and five three, which is where Laurel is.
Mr. Wilson. Thank you very much. Thank you all.
Mr. Shays. Majority counsel has used his time and yields
back the rest; and the minority counsel, if they would like to
use time, has 30 minutes.
Mr. Waxman. We have no questions further to ask.
Mr. Shays. Mr. Waxman, if you'd like to make a concluding
comment, I'll be happy to make one. Then we can adjourn.
Excuse me, I will say this. I would like to--beforehand, I
would like to give each--all four of you--an opportunity to
make any comment you would like before we adjourn.
Mr. Osborn do you have any comment you'd like to make?
Mr. Osborn. No, I'm fine.
Mr. Shays. Appreciate you being here.
Ms. Cagle, any comment that you would like to make?
Ms. Cagle. No, I have no comment.
Mr. Shays. Thank you for being here.
Mr. Band. I appreciate your consideration, but I have no
further comment.
Mr. Shays. Thank you, Mr. Band.
Thank you for being here, Mr. Gregorie.
Mr. Gregorie. Thank you for consideration, Mr. Chairman.
Thank you very much.
Mr. Shays. Thank you.
Thank you for being here. Mr. Waxman.
Mr. Waxman. I have nothing to say that I haven't already
said. I yield back my time, and I'm ready to leave.
Mr. Shays. Thank you gentlemen and lady. We may be sending
you--in fact, will be sending you some questions that we would
like you to answer. We would give you, obviously, ample time to
answer the questions and appreciate you all being here and
appreciate our recorder; and I appreciate the hard work of our
staffs on both sides of the aisle.
This hearing is adjourned.
[Whereupon, at 3:25 p.m., the committee was adjourned.]
[The staff report and the complete set of exhibits follow:]
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