Source: Pittsburgh Post-Gazette (PA)
Copyright: 1998 PG Publishing 
Pubdate: Mon, 7 Dec 1998 
Contact:  
Website: http://www.post-gazette.com/ 
Author: Bill Moushey, Post-Gazette Staff Writer 
Note: This is the eighth of a 10 part series, "Win At All Costs" being
published in the Post-Gazette.  The part is composed of five items (posted
separately).  The series is also being printed in The Blade, Toledo, OH
email: CALCULATED ABUSES

With Their Backs Against The Wall, Prosecutors Bring Out Their Dirtiest Tricks

Federal prosecutors frequently rely on promises of leniency when they use
criminals to snare other criminals, but the government’s word isn’t
necessarily its bond.

In 1990, Mary Ann Rounsavall pleaded guilty to helping her brother deal
drugs and was sentenced to five years in prison. Then in 1994, as she
awaited her release from prison, prosecutors brought new charges against
her in connection with the same drug ring that the government said her
brother James was still operating.

She and her brother were charged with bringing millions of dollars worth of
drugs from Southern California to Nebraska and laundering the proceeds of
the drug sales. She was even accused of selling drugs over the telephone
while she was locked up.

But the government’s case was thin.

A judge declared two mistrials based on prejudicial testimony by government
witnesses. So prosecutors pressed Mary Ann Rounsavall to snitch on her
brother in exchange for a lenient sentence for herself.

She refused.

Prosecutors told her they might go after other members of her family unless
she testified.

She still refused.

Then they arranged for her to see her brother, who had been taken from the
prison where they both were being held and placed in a hospital intensive
care unit, suffering from viral pneumonia and a recurrence of his
rheumatoid arthritis. They told her he did not have long to live, and his
grave condition at the hospital gave credence to their claims.

Mary Ann Rounsavall talked to her mother, Gladys Rounsavall. She told Mary
Ann it would be best to testify against James. If he was dying, then Gladys
would at least know her daughter wouldn’t risk a long prison term.

So Mary Ann Rounsavall testified. Her statements sent James Rounsavall to
prison for life. In return, Mary Ann Rounsavall had been promised about
eight years.

But the prosecutors in her case reneged on their pledge. They made no
request that her sentence be reduced based on her cooperation, and the
judge had no choice under federal mandatory sentencing guidelines but to
give her a 20-year sentence based on her own confession.

U.S. District Judge Richard Kopf, a hard-liner in drug cases, denounced the
prosecutor for failing to live up to his promise. He called the action
"horribly wrong."

Mary Ann Rounsavall also learned that her brother was healthy -- he isn’t
dying at all. She was tricked.

Disregarding Ethics

The Pittsburgh Post-Gazette’s two-year investigation found hundreds of
cases in which federal agents and prosecutors violated rules and laws to
make cases.

Some incidents went beyond treading across the line of ethical or legal
guidelines. These cases involved actions where the abuse of power was
cynically calculated to inflict harm well beyond the limits of the law.

Marvin Miller, ethics committee chairman for the National Association of
Criminal Defense Lawyers, admits he is a harsh critic of federal
prosecutors and their actions.He said there is no question prosecutors over
the past decade have increasingly subscribed to an anything-goes mentality,
often pushing the limits of the law to the point that their conduct becomes
unethical.

"These guys are unconcerned about misconduct," he said.

Thomas Dillard, a former U.S. Attorney for the Northern District of Florida
and currently a criminal defense lawyer in Knoxville, Tenn., said
prosecutors have free rein in such matters because the power judges once
wielded to mitigate their conduct has been taken away.

"They don’t have any authority in the charging, they have no authority in
the sentencing," Dillard said. They have really no way of checks and
balances like there used to be.

"We’ve slowly conceded any oversight of federal prosecutions. There is
nobody who is in charge that has any oversight. It’s been slow in coming
and gradual in its appearance, but by golly, it’s here now."

Arnold I. Burns, deputy attorney general under President Reagan, said the
problem is not with the majority of federal prosecutors, but with an
overzealous fringe element.

"Every so often, you wind up with [a federal prosecutor] who is some sort
of a crazy zealot, no background, no experience, no frame of reference,
uncontrolled, unfettered, very dangerous, particularly with the sentencing
guidelines," he said. "With them, the prosecutor has more and more power.
In fact, he has all the power."

Piling It On

Another variation of sentencing misconduct is called sentencing entrapment
— one of the most insidious forms of misconduct found in this investigation.

Sentencing guidelines approved by Congress in 1987 require a specific
penalty for every federal crime. Judges can’t consider most extenuating
circumstances -- a provision set up so defense attorneys can’t shop for
lenient judges.

A person’s sentence -- and prison time -- is determined by the charge
brought by agents and prosecutors. They can easily manipulate those
charges, especially in drug cases, where the amount of illegal substances
sold is translated into the amount of prison time a convict faces.

For example, in 1992, Lorenzo Naranjo was sentenced to 10 years in prison
for buying 5 kilograms of cocaine from a government informant in the San
Francisco Bay area.

The informant had pressured Naranjo for months about a drug deal and was
turned down. Naranjo finally agreed to buy some cocaine, but not nearly
enough to suit DEA agents, who told their informant to badger Naranjo to
buy more, according to an opinion rendered by the 9th U.S. Court of Appeals.

The informant finally succeeded, effectively doubling Naranjo’s prison
sentence.

Martin Parrilla of Butte, Mont., was also a small-time dealer who agreed to
sell a government informant less than $200 worth of cocaine in 1996.

Agents for the U.S. Bureau of Alcohol, Tobacco and Firearms told the
informant to set up another deal and offer Parrilla a handgun in exchange
for cocaine. That would also hook him on a federal firearms charge.
Parrilla agreed to the deal, and was arrested on both federal drug and
firearms charges.

He agreed to plead guilty after federal agents dropped the firearms charge.
But his pre-sentence report showed a gun was involved in the deal, even
though Parrilla argued it was the result of entrapment. A judge said his
hands were tied and doubled Parrilla’s sentence, as required by federal
guidelines.

Both Naranjo and Parrilla were lucky. Appeals courts agreed they’d been
entrapped, and cut their sentences. That doesn’t always happen.

In 1992, John Behler, a 49-year-old Vietnam veteran who lived in Dunbar,
Neb., was sentenced to 19 years in federal prison for supervising a drug
conspiracy in which he was the only person to go to prison.

He’d never been charged with a crime before.

According to the government, for three years Behler had traveled to
Colorado, where he bought methamphetamine, which he then brought back to
Nebraska and sold.

Behler admitted frequently buying the drug in Colorado. But he said he used
it himself. And 400 taped conversations made by federal agents on Behler’s
phone disclosed only one instance where he sold the drug, providing a small
amount to a friend of his wife.

When Behler was arrested, he was carrying less than one-half of a gram of
methamphetamine. Based on that amount alone, Behler would have faced only
minor drug charges.

But federal prosecutors found two former girlfriends to testify against
him. One had been arrested on drug charges herself, and received leniency
for testifying against Behler, though she denied any such deal in court.
Prosecutors are supposed to correct such lies, but did not in this case.
The other girlfriend said she testified because he repeatedly threatened
her. Both said he’d sold the drugs he’d bought in Colorado.

Agents found no drugs in his house when he was arrested, only $200 in cash,
and no other assets to suggest he was a drug kingpin. Yet the testimony of
his two former girlfriends prevailed.

But prosecutors had only gotten started.

The government arbitrarily decided Behler had transported one ounce of
methamphetamine on every trip he made to Colorado -- 14 ounces total. Under
the sentencing enhancement provisions of mandatory federal sentencing
guidelines, that ensured Behler a sentence of at least 10 years.
Prosecutors then used the wrong guidelines to add four more years based on
the drug’s purity -- a mistake the judge in the case failed to catch.

Behler didn’t have a gun when he was arrested, but his former girlfriends
testified that he used to carry one. So prosecutors added a weapons
possession charge, which added another five years to his sentence.

Then they added more time for intimidating a witness, even though the
testimony of the witness who claimed intimidation had been impeached in court.

Had Behler faced state charges, he might have gotten probation.

Had he been sentenced for bringing in 14 ounces of methamphetamine, he
would have gotten five years in prison.

But because of the manipulation of mandatory sentencing guidelines by
prosecutors, he ended up being sentenced to 19 years as a drug supervisor.

An appeal he filed in prison had some success -- a judge agreed to cut 7
1/2 years from his sentence based on the government’s arbitrary
determination of the purity of the drugs he’d purchased. He has filed other
appeals on what he considers other sentencing guideline errors, as well as
discovery violations and perjury.

Behler worked as a welder and a bouncer before he was arrested. He admitted
he used lots of drugs.

But by no stretch of the imagination could he have been considered the
kingpin of a drug conspiracy.

If there were a drug conspiracy, he said, "wouldn’t it look good if you had
two people in jail, instead of one guy getting 19 years?"

Helping Him ‘Jump’

In the fifth part of this series, the Post-Gazette reported on a scam by
prisoners called "jumping on the bus," in which inmates buy inside
information about a crime they had no part in, often purchasing it from
government informants. They memorize it and offer to testify against people
charged with the crime. In return, prosecutors promise to cut their sentences.

John Pree’s ticket to freedom went beyond that. He said federal agents
approached him and asked him to lie to help win indictments against more
than a dozen reputed Detroit-area gangsters. The agents promised to provide
the information he’d need.

Federal agents had long sought to put Vito Giacalone, boss of the Detroit
organized crime family, and several of his accomplices behind bars.

Pree was a long-time criminal facing a life sentence after being arrested
following his armed robbery of a home in 1992. Federal agents told him they
could make that sentence disappear.

In court filings, here’s how Pree described the deal: Federal agents
provided him information about a number of crimes, including the torture
and murder of Detroit gangster Peter Cavataio. Pree would plead guilty to
these crimes, testifying that he’d been acting on the orders of Giacalone
and his associates, who would face life sentences.

In exchange, the life sentence Pree was facing for the armed robbery and
being a career offender would be dropped, he’d be sentenced to 20 years for
the murder he didn’t commit, then federal agents would quietly arrange for
that 20-year sentence to be reduced to less than a decade behind bars.

Pree said they also promised him a new identity and cash to begin his life
anew.

Pree said he agreed to the deal, even though he’d never met Giacalone.
"[Federal agents] would bring me police reports to read, photographs, then
their rendition of things that happened," he said in a recent telephone
interview.

Pree told the fabricated testimony of the Cavataio murder to a grand jury,
and more. Yes, he’d burned down Giacalone’s girlfriend’s house in suburban
Detroit so Giacalone could collect the insurance, he told the grand jurors.
There were mob-ordered fire bombings, hidden business interests in
brothels, intimidation of witnesses, political corruption and more, Pree
testified.

There were a few hitches. He testified that he’d murdered the gangster in
1986, when the killing actually occurred in 1985. And he failed when asked
to pick his victim out of a photo lineup.

"That’s because I didn’t know him," Pree said from prison.

Pree said he repeatedly failed a polygraph test before testifying.

Nonetheless, Pree’s grand jury testimony in March 1997 helped indict 17
suspected mobsters in the federal government’s largest crackdown of
organized crime figures in Michigan.

Agents placed Pree in the federal witness protection program and sent him
to a prison in Minnesota to await his call to testify at the trials of
Giacalone and others.

Pree said he soon began to get nervous about the deal. There was no word on
the promise to cut his prison time. Several of the men he’d testified
against had agreed to plea bargains, so his testimony wouldn’t be needed at
trial. And if the federal prosecutors didn’t fulfill their part of the
deal, he feared he might be sentenced to life in prison for a murder he
didn’t commit. And aside from that, he had found some things in his armed
robbery conviction that he believed might help him get the verdict reversed
on appeal.

His misgivings intensified after federal agents stopped responding to his
calls and letters.

So in 1997, he withdrew his guilty plea in the murder.

He told the court he’d lied in linking crimes to Giacalone and underlings.
He said his FBI contacts had cautioned him to keep that information to
himself.

Even though he still faced life in prison on the home invasion charge, Pree
said in an interview that the charade had worn on him. "I’m not going to
lie for these guys [federal agents] anymore."

Without Pree’s testimony, two suspects he’d implicated were acquitted,
while others were convicted after prosecutors were able to convince another
gangster to become a government witness. Giacalone, who was facing life in
prison based on Pree’s statements, agreed to a 6 1/2-year sentence in
exchange for pleading guilty to one charge of conspiracy.

As for Pree, he has appealed his conviction on the armed robbery charge.
And after withdrawing his guilty plea in Cavataio’s slaying, federal
prosecutors quietly dropped murder charges against him.

Keith Corbett, chief of the organized crime and racketeering section for
the U.S. Attorney’s Office in the Eastern District of Michigan,
characterized Pree as an admitted perjurer and said the government has
contested each issue Pree has broached.

As for his planned testimony, Corbett said, "We would not have attempted to
use Mr. Pree as a witness unless we believed what he was telling us."

Corbett said all of the matters regarding Pree are still under review.

Pree has been removed from the witness program and is now imprisoned in
Michigan.

Jury Disregarded

Sometimes prosecutors won’t take no for an answer. Even when the no comes
from a jury.

Federal agents in South Florida said Sal Magluta was the largest cocaine
supplier they’d ever caught when they heralded his arrest and that of his
partner, Willy Falcon, in 1991.

They were in prison for 52 months before their trial finally got under way.

In February 1996, Magluta and Falcon were acquitted on all counts.

Defense attorneys were able to show that virtually every witness called to
testify against them was lying or had been given freedom in exchange for
their testimony. Jurors said afterward the testimony was not believable.

Prosecutors weren’t ready to give up, though.

Only a few days after his acquittal, they released information to the media
showing Magluta and Falcon had attempted to negotiate a plea agreement in
which they would plead guilty and turn over to the U.S. government vast
quantities of cash, real property and cocaine in exchange for a lesser
sentence.

Such negotiations are supposed to be confidential.

Then, only three weeks later, the government indicted Magluta with yet
another crime -- perjury -- based on a statement he had made before he was
indicted on the drug charges.

Magluta’s attorneys were outraged. Their client had been acquitted and now
federal prosecutors were trying to find another way to put him in prison.

"The best evidence of actual prosecutorial vindictiveness is the release of
information about the negotiations for a plea agreement in direct
contravention to (federal court rules and their) requirement of
confidentiality," wrote attorney Roy Black. "The only purpose for
disclosing this information was to prejudice Magluta in the eyes of the
public. The disclosure would stand as justification for the government
continuing to seek indictments against him."

Among the points made in their appeal: The 52 months Magluta had been
imprisoned awaiting his first trial would cover any penalty that might be
imposed on the perjury charges, which stemmed from statements he’d
supposedly made 6 1/2 years earlier.

Magluta’s attorneys also argued the government was simply trying to re-try
a case it had lost.

Magluta remains in prison, awaiting action from an appeals court. It has
been almost seven years since his initial arrest. He has yet to be
convicted of even one crime.

Last summer, his problems got worse. The foreman of the jury that found
Magluta not guilty was charged with accepting a $500,000 bribe to fix the
case. That case is still pending.

Bowing To Pressure

Mary Ann Rounsavall has filed an appeal seeking a reduced sentence based on
the government’s promises to her. In addition to accusing the government of
breaking its promise, the appeal also says some of the testimony she gave
in her brother’s case was provided by federal agents.

During a telephone interview, she described how she finally relented to
government pressure and agreed to testify against her brother.

She remembers the fateful meeting with Assistant U.S. Attorney Bruce Gillen
after weeks of negotiations about whether she would tell on her brother.
Gillen didn’t respond to a Post-Gazette request for comment.

"I said, ‘If I sign this plea agreement, how much time am I going to do?’
Bruce Gillen told me seven to 10 years. At the time, I was so upset with
everything that I just said yes," she said.

At a hearing in October, the government argued she had not fully cooperated
in return for leniency, an argument her sentencing judge had earlier rejected.

During the course of her research into the appeal, Rounsavall said she
found another case where the same U.S. Attorney’s office did not fulfill
promises it made on a deal. In that case, Roderick Pipes and LaSalle N.
Waldrip, two Nebraska men caught in a cocaine case, had cooperated with the
government.

In September 1997, the 8th U.S. Court of Appeals reversed the sentences
they received after the government refused to give them reduced prison
time. In that case, Nebraska agents said the two men had been forthright in
their assistance, while agents in Oklahoma said they had not.

The re-sentencing of the two men has not been resolved.

As for Rounsavall, on Friday a judge granted her motion to compel the
government to abide by its agreement. She will be resentenced Jan. 6.
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Checked-by: Richard Lake