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?”
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.
The witness, who has not been publicly identified, has yet to be sentenced in a 2000 gold fraud case, which, like the Pellicano indictment, is being prosecuted by Assistant U.S. Atty. Daniel A. Saunders.
A month after the threat, the confidential witness secretly recorded an ex-convict named Alexander Proctor saying Pellicano had paid him to intimidate Busch on Seagal’s behalf.
Seagal had been in a film partnership with reputed Gambino crime family member Julius Nasso. By this point, their relationship had deteriorated, with Nasso suing Seagal for ending their partnership, and later going to prison, along with several reputed Gambino family members, for trying to extort money from the movie star.
A week after he made the FBI tape, the confidential witness offered to sell it to Nasso’s attorneys, saying it might be useful to “dirty up Seagal,” according to sworn declarations that lawyers Barry Levin and Jack Litman filed in court. The attorneys turned down the offer, which was for $14,000, later upped to $30,000.
Nasso’s investigators notified Ornellas several times about the witness’ attempt to sell them the tape, according to sworn declarations they filed in connection with Nasso’s sentencing. But Ornellas did not tell the magistrate judge about the solicitation, which would have damaged the informant’s credibility and thus raised doubts about the basis for the warrant, the defense has argued.
Additionally, the defense contends that Ornellas lied in a subsequent court filing when he said he did not learn about the offer until three months after he wrote the affidavit.
The defense also has argued that Ornellas did not reveal discrepancies between Proctor’s taped account and the actual threat.
On the tape on which Proctor blamed Pellicano, he also bragged about firing a weapon at Busch’s vehicle, according to a transcript of the tape quoted in a recent defense motion. But the LAPD, in a police report, found no bullet holes in the car or shell casings at the crime scene.
“I put a bullet hole. [I] shot the car up, you know, so she’d see the bullet hole right there,” Proctor said in the transcript.
Proctor described the tray placed over the fish and rose as a “plastic container.” The LAPD said it was an aluminum cooking pan.
Proctor said he planned to set the car on fire but didn’t because Busch lived on a street with no escape route. The street intersects a major thoroughfare.
Defense lawyers also have questioned whether Ornellas doctored a photo lineup to link Pellicano to a second threat against a reporter who was researching Seagal.
Vanity Fair writer Ned Zeman told police that a white man in his early 20s, about 5 feet 10, with a thin build, dark complexion and short brown hair, drove up beside him, pointed a handgun and said: “Stop,” according to a LAPD report quoted in a defense motion.
Three weeks later, the affidavit says, a New York private investigator told Ornellas that the man who pointed the gun was “John Rottger, an active Navy SEAL and a very good friend of Seagal’s” who had appeared in the star’s action movies.
Ornellas showed Zeman a photo lineup of six men, including “John Rottger Jr.” According to the affidavit, the Vanity Fair writer said [John Rottger Jr.] looked like the man who had pointed the gun at him and asked to view a profile photo of the suspect.
But Ornellas failed to tell the magistrate judge that “John Rottger Jr.” was not the tall, blond Navy SEAL in his late 40s whom he had met and interviewed weeks earlier. It was his brown-haired, 24-year-old son, who was not a close friend of Seagal’s and had never appeared in his movies.
“Did Agent Ornellas know that John Rottger did not match the description Ned Zeman gave of his assailant?” Pellicano investigator Lynda Larsen asked in a sworn court declaration. “Did he include a false identification of John Rottger Jr. in the affidavit?”