Attorneys for Anthony Pellicano are mounting a new legal attack to strip the prosecution of its most potent evidence, contending that an FBI agent concealed information and then lied about it to convince a judge to let him search the Hollywood private eye's office.
That search five years ago, the government said, turned up thousands of hours of tapes of celebrities and attorneys -- the basis for wiretapping and racketeering charges against Pellicano and a dozen others.
A trial judge and a federal appeals court earlier refused to throw out the search, saying that even if the warrant was invalid, it was executed in "good faith." But Pellicano's new legal team says new evidence that U.S. District Judge Dale S. Fischer recently ordered the government to turn over undermines the good faith argument.
Specifically, the defense, in discovery demands, has accused Special Agent Stanley E. Ornellas of failing to tell Chief Magistrate Judge Robert N. Block that an informant tried to sell to a reputed mobster an FBI tape he made of an ex-convict as part of the investigation.
Ornellas also failed to disclose significant discrepancies in the ex-convict's account, they said in discovery demands. And they accused Ornellas of rigging a photo lineup.
"These are things that are beyond mere suspicion, things that are part and parcel of showing that there was a reckless disregard for the truth," defense lawyer Steven F. Gruel told the judge during a recent hearing. "What did Agent Ornellas really know and why is it coming out in piecemeal in some sort of protracted fashion that hides the ball as it progresses?"
FOR THE RECORD:
Pellicano investigation: An article in the June 7 California
section about defense efforts to challenge the search that led to
wiretapping charges against Hollywood private eye Anthony Pellicano
referred to New York film producer Julius Nasso as a reputed Gambino
crime family member. In a federal indictment charging Nasso with
conspiring with members of the Gambino crime family to extort
millions of dollars from actor Steven Seagal, Nasso was named an
associate of the crime family, not a member. He pleaded guilty in
2003 and was sentenced to one year in prison. The article also said
the case had yet to live up to its billing as a major Hollywood
scandal, netting so far several guilty pleas to perjury charges. It
should have said the case so far has netted guilty pleas for perjury,
lying, wiretapping, computer fraud and other charges, but has not led
to convictions of any Hollywood powerhouses.
Ornellas did not return calls. The FBI declined to comment, referring questions to a spokesman for the U.S. attorney's office, who provided a filing from the earlier legal battle over the search warrant, asserting that Ornellas did nothing reckless or dishonest.
Ornellas' search warrant affidavit went through multiple levels of review at the U.S. attorney's office in Los Angeles as well as at the Department of Justice's Office of Enforcement Operations in Washington, D.C., the filing says.
The Pellicano wiretapping and racketeering case shook the entertainment industry with its intimations of eavesdropping on the secrets of industry powerhouses. But it has yet to live up to its billing as a major Hollywood scandal, netting so far several guilty pleas to perjury charges.
Energized by the new evidence -- FBI reports and confidential documents -- the defense is shifting to the offensive, trying to take the heart out of the prosecution's case
Defense lawyers have been previewing their new tack in discovery demands that will be pulled together in a motion to be filed in July, requesting a new hearing on the warrant. Donald Re, the attorney who filed the original unsuccessful challenge, said things could have turned out differently if the government had disclosed more swiftly everything it knew.
"What bothers me most about these revelations is that the decision against Anthony was very close," Re said in an interview. "If the government had previously disclosed any one of these problems with the affidavit, the decision could have been reversed."
Laurie L. Levenson, a professor at Loyola Law School in Los Angeles, said Pellicano faces a difficult "but not impossible" challenge.
"This is a key moment in this case," said Levenson, a former federal prosecutor. "It comes down to whether the defense can show that it was deliberately or recklessly false as opposed to just sloppy police work. You don't win these motions just because the police made a mistake."
The Pellicano case began with an act of intimidation against a Times reporter who was researching actor Steven Seagal's ties to organized crime, the government has said. Anita M. Busch awoke in June 2002 to find a dead fish and a red rose on the punctured windshield of her car below a note that read: "Stop!"
The next morning, a man telephoned the Times newsroom and left six "urgent" voicemails for Busch warning that "ruthless" people "back East" were behind the threat, Ornellas said in his affidavit for a search warrant.
The caller phoned the paper because "he did not want to see anybody get hurt," the affidavit said. In reality, the caller was a confidential witness who had been working as an FBI informant for nearly a year, prosecutors acknowledged recently in court.
Pellicano lawyers target FBI agent
They aim to show Stanley Ornellas concealed evidence, then lied about it in an effort to search the PI's office.
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