By Steve Miller
Las Vegas Tribune
October 16, 2002
LAS VEGAS - On September 30, attorneys J. Tony Serra and Shari L. Greenburger
of San Francisco acting on behalf of Plaintiff Richard Tabish filed a Writ of
Mandamus in Federal Court to compel the Department of Justice to order that
the FBI produce evidence that has up until now been unavailable to lawyers
representing the appeal of the accused murderers of Lonnie "Ted" Binion.
Tabish's attorneys took this action in Federal Court following Clark County
District Court Judge Joseph Bonaventure's refusal on five occasions to turn
over the exculpatory evidence.
The Writ states, "We are informed and believe that the FBI and other federal
defendants in this case actively investigated the alleged homicide of Ted
Binion, and have possession or control of exculpatory information which is
essential to Mr. Tabish's defense, which cannot be obtained from any other
source."
Tabish's attorneys contend that Ted Binion was the subject of a twelve-year
investigation beginning in 1981, in which the former casino executive was the
target of at least three RICO investigations by the FBI.
"In December 1999, FBI Special Agent Gerald McIntosh sought and obtained a
warrant for a wiretap, seeking to intercept the communications of various
members of a criminal enterprise, which allegedly included Mr. Binion before
his death in September 1998. The affidavit surfaced in October 2001, in the
course of criminal proceedings against Robert Marshall, one of the wiretap
targets. According to affiant McIntosh, one of the express purposes of the
wiretap was to investigate the alleged murder of "Teddy" Binion -- even
though Mr. Tabish and co-defendant Sandra Murphy had already been charged ten
months earlier for Mr. Binion's alleged murder," states the Writ.
At the time Agent McIntosh submitted his affidavit, Clark County District
Attorney prosecutors and Las Vegas Metro Police detectives were still
actively investigating Binion's death.
According to Agent McIntosh's affidavit, the FBI had developed information
from a confidential source that Chad and George Muse, and a man named Kirby,
had information about Binion's death. The informant had described the Muses
as former employees of Binion's casino, "who had assisted others in hiding
money belonging to Teddy Binion." And the informant had described Kirby as
someone who had "information about Binion's death and may have been
personally involved in digging up money in the desert."
Serra and Greenburger contend; "According to Agent McIntosh's affidavit,
these three individuals evidently knew that a pillow may have been used to
suffocate Ted Binion, before a coroner even testified in the case against Mr.
Tabish that Binion had died from asphyxiation rather than a drug overdose, as
first thought. Similarly, Exhibit B concludes by stating that 'information
was furnished that Teddy Binion was smothered with a pillow while passed out
on a couch. Since the Court issued Agent McIntosh's requested wiretap
warrant, we are informed and believe that the FBI developed significantly
more information about Ted Binion's death, and witnesses thereto, which is
certain to be exculpatory to Mr. Tabish."
On August 15, 2000, following his conviction, Tabish filed a motion for a new
trial based in part on the state's failure to disclose exculpatory evidence.
In support of the motion, numerous FBI witnesses were called to testify. FBI
Special Agent Charles Maurer testified: "Arthur Mauriello, an FBI informant,
had provided information to the FBI that the same individuals who killed
Herbie Blitzstein had talked about robbing Ted Binion. Antone Davi and
Richard Friedman were charged and convicted of murdering Herbie Blitzstein.
Antone Davi, a cooperating witness, provided information that Ted Binion
offered $50,000 to kill his sister Becky. Ted Binion later changed his mind
and withdrew this offer. However, in that time period, a plot was hatched to
kill Ted Binion instead. Mobster Pete Caruso had ordered a hit on Ted Binion,
and Teddy Binion didn't know that the 'crew' was going to kill Teddy and his
sister," according to Mauriello's statement.
The Writ also names former Las Vegas Metro police officer Ron Mortenson
stating he provided the FBI with copies of his notes after he was indicted in
May 1997 for a shooting. The notes, which were introduced through Agent
Maurer, summarize Mortenson's jailhouse conversations with Antone Davi and
detail the mob plot to kill Binion and steal millions in cash believed to be
stashed in his home. These same notes also make clear that the state and
federal agencies worked together to investigate Binion's death.
FBI Special Agent John Plunkett also testified at the hearing on Tabish's
motion for a new trial. Plunkett said that beginning in February 1997, he
learned of an intended mob hit on Ted Binion, as well as a plot to rob him,
and passed this information on to Las Vegas Metro Police detective Mike
Franks. Agent Plunkett testified that he believed it was more appropriate for
Las Vegas police to tell Binion of the threat.
Plunkett stated, "In an intercepted communication on January 29, 1997, two
individuals identified as Pete and Johnny Branco discuss silver dollars in
Ted Binion's garage, stating 'he has them in barrels in the garage ... they
are brand new.' Pete tells Johnny that he is looking into getting the silver
dollars. Notably, there is 'talk of whacking him (Binion) and how much money
he has in his drawers.'"
Serra and Greenburger 's Motion continues, "Then, in another intercepted
conversation on January 30, 1997, between Pete and Johnny, John says he wants
Pete with him because he is a good burglar guy. John says he can help Pete
with that thing with Binion, and that John can get him in there as long as he
knows that Pete will be loyal. They discuss the layout of Binion's house.
They say they can do it without whacking the guy, but will do whatever is
necessary."
The Writ then states, "In an intercepted communication on February 6, 1997,
John Branco, Joe DeLuca, and Pete Caruso discuss what Ted Binion likes to
drink, and the value and location of riches hidden in his house, including
silver dollars, gold bars, jewelry, and diamonds. Further, Joe discusses his
knowledge about how much is buried on Binion's ranch in Pahrump, Nevada, and
the fact that Binion has marked it but forgotten. They discuss 'the thing in
the garage that even the cop's won't be able to find things in.'"
The Writ tells about a hiding place in a vent in Binion's kitchen containing
$80,000 worth of gold coins.
When Binion's body was discovered on September 17, 1998, it was also
discovered that all of his valuables were missing including a ten million
dollar check which he is believed to have received that day for his share of
the proceeds from the sale of a casino game called "Caribbean Stud" to Mikohn
Gaming. This last fact is confirmed in FBI Agent McIntosh's wiretap affidavit.
A synopsis of an FBI Investigation Report dated March 24, 1999, is further
evidence of the FBI's participation in the Binion investigation according to
Serra and Greenburger. It describes information the FBI received from a
private investigator on June 3, 1996, regarding a possible plot by an
ex-employee of Binion's casino to kidnap (Ted's sister) Becky Binion for
ransom. "Throughout all of the information described in the report involving
other suspect evidence, there is absolutely no connection or nexus to Rick
Tabish of any kind," stated Serra and Greenburger.
The Writ concluded, "Plaintiff Richard B. Tabish seeks only to obtain from
defendants the release of information to which he is fundamentally entitled,
and which he argues will reveal his innocence, as he has so ardently
maintained since the moment of his arrest. Defendants have not denied that
they possess such information. Instead, they stand on exalted form and
exaggerated privilege, where instead they should have volunteered the
information they possess, not just because it is their duty, but because they
respect the search for truth."
In a parallel cause of action brought on October 2, by attorneys for Sandra
Murphy, Judge Bonaventure took what many have described as a "tantrum" in the
courtroom. He threatened Murphy's attorney Herb Sachs with contempt of court
and stated, "It is contempt of court when you willfully ... willful
disobedience of the lawful process or mandate of a court. You should be
guilty of a misdemeanor."
After his tirade, Bonaventure said he guessed he could hear Sachs' motions
although he believes they are not collateral issues as Sachs contended. "It's
taking my time, your time and the state's time. If you earn a fee that way
and you want to do that, I guess I'll hear it," Bonaventure said.
This was the first time in five attempts that Bonaventure acknowledged that
there may be exculpatory evidence and that he "guessed" he is in authority to
hear Motions for its' release. However, attorneys have now taken action
above his jurisdiction with this Writ of Mandamus. In the meantime, the
Nevada Supreme Court is considering whether to grant Tabish and Murphy new
trials.
Since the highly publicized trial that convicted Tabish and Murphy of first
degree murder, DA prosecutors David Roger and David Wall are both running for
higher office. Meanwhile, Judge Bonaventure is being considered for a part on
a TV program. Courthouse observers speculate that Judge Bonaventure is
avoiding ruling on the five exculpatory evidence motions as a favor to Roger
and Wall who are using their court victory as a basis for their campaigns and
could be damaged politically if new evidence surfaces before election day.
Judge Bonaventure and prosecutor David Roger, on August 11, 2001, attended a
book signing party held at the Horseshoe and autographed dozens of paperback
books that favored the prosecution and vilified Tabish and Murphy. After the
book signing, the judge and prosecutors were accused of bias because the
Binion case is still active in Bonaventure's court.
©1997-2002 Las Vegas Tribune
email Steve Miller at: Stevemiller4lv@aol.com
