By Michael E. Miller
By Allie Conti
By David Villano
By Jose D. Duran
By Michael E. Miller
By Allie Conti
By Kyle Swenson
By Luther Campbell
Assistant U.S. Attorney Patrick White manages to overcome all the starch stiffening his dress shirt, lean back in his chair, and actually appear relaxed for one moment, however brief, of this long April day. He is startled back into bolt-upright position by his own voice, recorded ten months earlier, talking back at him from two speakers on a nearby table in a federal courtroom. It is a tape of White's closing argument in a money-laundering case. "What we are relying on in this case is tapes," White hears himself declare. "Tapes don't lie. Tapes do not lie."
Though that jury agreed the government's clandestine recordings of defendant George Gandelman provided enough evidence to convict Gandelman of four of six counts of federal currency law violations, White is taking little comfort in the July 1993 verdict. Gandelman, a 32-year-old Colombian-born gallery owner, is not in jail but here in the courtroom, making a novel challenge to the conviction: He alleges that federal agents tampered with the tapes that were so central to the government's case.
At the request of Gandelman and his attorney Leonard Sands, technicians have set up sound equipment in the courtroom, which, to White's evident chagrin, they have used to reprise the prosecutor's closing argument. White is even less amused moments later, when that same sound equipment, connected to a computer loaded with Sound Designer tape-editing software, transforms his statement into its antithesis. "What we are relying on in this case is tapes," his voice repeats. "Tapes lie. Tapes do lie."
That is what Gandelman has maintained ever since his conviction. "I know that the tapes used to convict me were tampered with," he says. "And I wonder how many other innocent people have been sent to jail using the same type of bogus evidence." After months of court filings and disputes with federal agents, last November he and Sands were finally able to gain access to nearly every taped conversation between himself and government agents and informers. And now, at this two-day evidentiary hearing, they are being given the chance to make their argument before U.S. Magistrate Linnea Johnson.
If Gandelman and Sands can convince Johnson that the government's tapes were doctored, the magistrate will almost certainly recommend to the judge who tried the case, C. Clyde Atkins, that the defendant be given a new trial. If, on the other hand, Johnson finds no problem with the tapes, Gandelman, who faces a sentence of five to eight years, will go to jail.
On this day Sands will call three witnesses, all of whom possess extensive experience editing audio soundtracks for the movie and television industries. The three men, John Thomas, Rick Raymond, and Lenny Rabinowitz, have independently analyzed the recordings. Each will testify that at least three of four tapes of face-to-face meetings between Gandelman and his accusers are not original recordings. The tapes, they will argue, are edited copies. Each expert will point out apparent splices at precisely the same places. It is at those spots, Gandelman claims, that he made comments -- about the necessity of reporting currency transactions to the U.S. government, for example -- that would have exonerated him at trial.
On one side of the courtroom sit White and three federal agents -- Kurt Hartwell of the IRS and Timothy Shaw of the FBI, who led the Gandelman probe from the fall of 1991 to the following spring, and Bruce Koenig, an FBI audiotape analyst. All smile smugly as the defense's first witness, a ponytailed John Thomas, takes the stand and describes himself as an audio engineer with twelve years of studio experience. "Throughout that time I have been recording, editing, and mixing sound on a daily basis," he says. His mention of some work he just completed for KC and the Sunshine Band draws more smirks from the federal agents.
Before questioning Thomas, Sands hands him a laser pointer he purchased at the Sharper Image, which Thomas will direct across the room from the witness stand to a large-screen television set. The TV screen displays a visual representation of sound waves (or "wave forms") generated by a recorded segment of an April 1992 conversation that took place in Gandelman's car, between the gallery owner and FBI agent Louis Reveiz. Working undercover as the wealthy son of a Latin American businessman, Reveiz is heard complaining about Miami's traffic problem. "The...the United States in general...in general it seems that everything is fucked up," Reveiz's voice says in Spanish. On the television screen, the statement appears as two long horizontal lines, each representing one channel of the stereo recording, that are actually hundreds of bunched vertical lines of different heights.
At Thomas's request, a man operating the system moves a computer mouse, and Reveiz's statement is heard again at a slower speed. At the point between Reveiz's repetition of the phrase "in general," the vertical lines representing the sound wave shorten considerably. The visual representation, Thomas testifies, confirms what he's hearing: a splice. "This is a very bad spot," he says. "If I made an edit like that in my business, I would be fired."
Though Reveiz has never been accused of badly editing tapes, he did resign from the FBI last year in exchange for the dismissal of charges against him. The agent, as Gandelman's attorney will mention to the court at every opportunity, allegedly accepted bribes from a money launderer. The case, as the federal prosecutor will point out in turn, had nothing to do with Gandelman's.
Both Rick Raymond, an independent audio engineer, and Lenny Rabinowitz, who edits audiotapes for television commercials, take the stand to testify that they, too, noticed the "bad spot" in the Gandelman-Reveiz conversation. All three of Gandelman's expert witnesses agree that similar glitches are evident in recordings made in early December 1991 and mid-March 1992.
During a break in the hearing, Patrick White says the defense witnesses' testimony doesn't concern him, deriding them as "Radio Shack employees who have no idea what they're talking about." White promises that they will be "blown away" by his witness, Bruce Koenig, the special agent who heads the FBI's audiotape forensic analysis group, based in Washington, D.C.
In his cross-examination, White devotes far less attention to the experts' analysis than to their backgrounds. Thomas, Raymond, and Rabinowitz all admit under questioning that they never studied "forensic tape analysis," never learned several established methods for authenticating tape recordings, never published any articles on the subject, and never -- until now -- testified in court.
Koenig, by contrast, has done all of those things during his 24-year career with the FBI. The agent exudes relaxed professionalism while testifying, perhaps because he's also done that before A some 230 times by his count. Over the course of his career he has worked on more than 3600 cases involving forensic audio or video analysis and examined more than 9000 tapes.
Koenig tells Magistrate Johnson that while the FBI does employ computer-generated wave-form graphs, such a test is just one of several the bureau performs in order to determine whether a tape is an original or a copy. He mentions "narrow band spectro-analysis" and cites other, simpler methods, such as a physical inspection of the tape to search for visible splices. (Although the defense witnesses were not permitted to actually handle the original tapes -- they worked from exact digital reproductions -- prosecutor White suggests that they could have performed a "physical" test with a special machine that would guard against damage.)
Not only did Gandelman's experts fail to perform vital tests, Koenig goes on to argue, but their wave-form analysis is inadequate. In order to make an edit visible, he explains, the graphs would require at least double the resolution provided by the witnesses' computer software. "This program may be fine in a recording studio," he remarks graciously. "But for any kind of scientific analysis, it's useless."
So sure is Koenig of his counterparts' incompetence, in fact, that he did not bother analyzing the tapes himself. He hasn't even glanced at them. There is no need, he tells Magistrate Johnson; in spite of their claims, Gandelman's witnesses have turned up nothing that suggests there was any tampering.
With little hope of cornering Koenig on specific technical issues, Sands concentrates instead on implying that because Koenig is a federal agent, he cannot be trusted to be unbiased when his colleagues are being accused. When the testimony is finished, Sands will admit that to suggest that the FBI protects its own might not go over well with a federal magistrate. "As a former federal prosecutor, I'm not inclined to believe this kind of thing can happen," he concedes. "But I'm now convinced it did happen."
The missing tape fragments, counters Patrick White, are simply figments of George Gandelman's overactive imagination. "I think [Gandelman] has convinced himself with all this glitter and gold that he's not guilty," White says while awaiting Magistrate Johnson's decision. "He and his attorney came in here and put on a dog-and-pony show to try to impress the court the way they impressed themselves. But analyzing government tapes is not the same as making recordings of the Bee Gees."
So why didn't the government analyze its own tapes to clear up the matter for the court? "There is a minimum threshold that must be met before the government decides to spend a lot of money running a lot of expensive tests," White answers. "In this case it was not met." Gandelman, the prosecutor adds, was convicted by what he said on the tapes, not by what he didn't say. "I mean, we have a conversation where cocaine is mentioned," White boasts. "We've got him explaining exactly how to launder money with bearer bonds. If worst comes to worst and we have to try him again, we'll convict him in a week."
Not surprisingly, Sands disagrees. "Once we prove that any tape recording has been altered, we draw the reliability of all the government's tapes into question," he comments. "That evidence won't be admitted in the next trial. And a jury will have to decide George's fate without it."
As it turns out, neither attorney finds reason to gloat. In what Sands characterizes as "a Solomon-like decision," Magistrate Johnson instructs the defense and the government to choose one tape each. The government's pick will be tested by the FBI; Gandelman and Sands's choice can be analyzed by any independent audio expert they desire, provided the government preapproves that person's credentials. Both sides will report their findings at another hearing, scheduled for July 6.
Until then Gandelman remains free on bond.