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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

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

BOB BARR, Georgia

DAN MILLER, Florida

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

DAVE WELDON, Florida

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

C.L. ‘‘BUTCH’’ OTTER, Idaho

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

JANICE D. SCHAKOWSKY, Illinois

WM. LACY CLAY, Missouri

——— ———

——— ———

———

BERNARD SANDERS, Vermont

(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

(III)

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

(1)

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

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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

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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 ConVerDate 11-MAY-2000 11:52 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 C:\DOCS\76596.TXT HGOVREF1 PsN: HGOVREF1
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gress 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, MIAMIDADE 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

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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.

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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.

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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

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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,

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tion 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?

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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

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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:]

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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 trigVerDate 11-MAY-2000 11:52 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00090 Fmt 6633 Sfmt 6633 C:\DOCS\76596.TXT HGOVREF1 PsN: HGOVREF1
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gered 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

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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

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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?

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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.

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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.

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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?

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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.’’

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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.

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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.

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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, Nixonappointed 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?

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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.

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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

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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?

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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

101

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

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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.

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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——

104

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.

105

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——

106

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.

107

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

108

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:]

109

110

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.

111

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.

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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, baldheaded 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,

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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.

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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.

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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.

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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?

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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 MerVerDate 11-MAY-2000 11:52 Dec 13, 2002 Jkt 000000 PO 00000 Frm 00121 Fmt 6633 Sfmt 6633 C:\DOCS\76596.TXT HGOVREF1 PsN: HGOVREF1
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cedes, 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

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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.

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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

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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:]

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123

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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

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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?

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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.

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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.

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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,

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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?

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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:]

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132

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

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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:]

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135

136

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.

137

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.

138

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

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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

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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

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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.

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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

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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——

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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

145

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

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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

147

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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149

150

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:]

151

152

153

154

155

156

157

158

159

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.

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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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