Did an alleged mob payoff to GHW Bush help derail a murder case?
Copyright © 1992, 2000 by David Robb and Dan E. Moldea
On December 12, 1992, Los Angeles investigative journalist David Robb and I published the following article, "Murder verdict called into question," in Arizona's Mesa Tribune.
Claims about an alleged payoff to President Bush have cast doubts on the credibility of the prosecution's key witness in the 1982 murder of an eleven-year-old Mesa girl.
The claims were made by Anthony "Tony Limo" Sarivola, a former policeman-turned mob "enforcer"-turned FBI informant whose testimony helped put Oreste Fulminante on death row seven days ago for the execution-style slaying of his stepdaughter, Jeneane Hunt, in the desert east of Mesa.
Sarivola testified that Fulminante confessed to him while they were serving time in a prison in upstate New York.
However, Fulminante's conviction was reversed by the Arizona Supreme Court on grounds that the confession was coerced. The reversal was affirmed last year by the U.S. Supreme Court, which remanded the case for a new trial, expected early next year.
Sarivola's credibility, the cornerstone of the prosecution's case in the first trial, could face a serious challenge in the new trial. That challenge will be based on a claim by Sarivola that he witnessed Bush accept a "payoff" during the 1980 presidential campaign from Michael Franzese, a captain in the Colombo organized crime family. The claim is contained in a 1984 Washington, D.C., Metropolitan Police Department report after Sarivola entered the witness-protection program.
Dennis Jones, the attorney for Fulminante, said he believes the allegation is absurd and plans to use it to discredit Sarivola in the eyes of the jurors. He added that the jury "should have full knowledge of Sarivola's claims. . . . I just think a jury ought to be aware of that."
According to the police report, dated Sept. 10, 1984, an unidentified source close to Franzese, now known to be Sarivola, told investigators Franzese had been "introduced to Bush during the 1980 campaign at the 57th Street Holiday Inn (in New York City). A payoff alleged made upstairs."
In a terse telephone interview on October 5, ten days after being released from a Pennsylvania prison, Sarivola stood by those allegations. He wouldn't go into detail–he said he wanted to talk to his lawyer first–but he responded affirmatively to several questions about the alleged payoff.
Attempts to recontact Sarivola through his lawyer, Baltimore attorney Mary French, and through a family member, have been unsuccessful.
Fulminante's alleged confession to Sarivola came while they were imprisoned in the Ray Brook Federal Correctional Institute in New York in 1983.
The U.S. Supreme Court held that the confession was coerced because Fulminante feared for his life if he didn't confess, and because Sarivola "acted as an agent of the government when he questioned Fulminante about the murder and elicited the confession."
A second confession, however, was allegedly made to Anthony and Donna Sarivola as they drove Fulminante from New York to Pennsylvania the day Fulminante was released from prison in May 1984.
The Arizona Supreme Court and the U.S. Supreme Court held that the second confession could be heard in the retrial because it took place outside of prison and "after Fulminante's need for protection from Sarivola presumably had ended."
Fulminante denies killing the child, and says that he never confessed the crime to Sarivola, according to his attorney. He never took the stand during his first trial.
K.C. Scull, who prosecuted Fulminante in the first murder trial, and who will be the prosecutor in the second trial as well, said he doesn't know anything about Sarivola's allegations against Bush, but said that Sarivola's allegations against Fulminante were good enough to win a conviction and secure the death penalty. "All I know is what he did here," Scull said. "He testified, and the jury, even though he had a past, they believed him. They understood that killers don't confess to your A-Number-One citizens, but that they do confess to people of their own ilk."
Defense attorney Jones initially requested Sarivola's FBI informant file two years ago and now hopes to see whether it contains information about the Bush claim. "We have been trying to get discovery from the government for the last two years," Jones said. "And they have just stonewalled us."
On Sept. 30, Maricopa County Superior Court Judge Susan Bolton gave the government 60 days to "produce all documents for which there is not a specific objection," or face the possibility that the testimony of Sarivola and his wife will be excluded from the trial.
Jones said last week that documents released recently by the FBI contained nothing new. He added that they were "documents they'd already given us or documents that were already in the public record. We're going to ask the judge to prevent the Sarivolas from testifying because the FBI has not been forthcoming with the documents that they promised and the court ordered."
While in prison, Sarivola told authorities that he heard rumors that Fulminante, who had always been the prime suspect in the murder of Hunt, had killed a child. That made Fulminante the target of prison bullies, some of whom were plotting to kill him by throwing him into the prison's trash compactor, he said.
Sarivola told that to Walt Ticano, an FBI agent who was trying to recruit Sarivola as an informant, and Ticano told him to find out more. Knowing that Fulminante feared the other inmates, Sarivola asked him about the rumors, offering to protect him from other inmates.
According to Sarivola, Fulminante said he killed the eleven-year-old girl because "she was in the way," meaning that she was coming between him and the girl's mother, his wife. Sarivola said Fulminante told him hat he'd shot her with a .357 Dan Wesson handgun. Fulminante reported such a gun missing the day his stepdaughter disappeared.
Prosecutor Scull said that Sarivola "had information that could only come from somebody who had access to it–such as the killer–or someone close to the investigation."
Sarivola entered into a written agreement with the U.S. Department of Justice's Organized Crime Strike Force for the Eastern District of New York on Aug. 15, 1984–one day before he made the allegation about Franzese and Bush. That agreement called for him to provide the Justice Department with information about Franzese and the Colombo, Gambino, and Genovese organized-crime families.
In exchange, Sarivola would be placed into the Federal Witness Security Program. The agreement provided for immunity, but it stipulated that if Sarivola were found to be lying about anything, the immunity would be revoked.
Franzese, in his 1992 autobiography, Quitting the Mob, co-written by Chandler author Dary Matera, refers to Sarivola as one of "my men" and as an "enforcer." Matera, who recently wrote a book on Arizona's AzScam political corruption scandal with undercover operative Joseph Stedino, said Franzese told him of the Bush allegations in 1990. He said he had wanted to use the material in the Franzese book but that Franzese refused.
Franzese is serving a five-year prison sentence in California for violating the terms of his probation on a ten-year sentence for racketeering and tax fraud.
Sarivola's credibility had come into question before the Bush allegations surfaced. In 1984, the FBI learned he faked a taped conversation between Franzese and himself. Still, the FBI continued to use Sarivola as an informant, and recommended him highly to Arizona detectives and prosecutors involved in the Fulminante case.
"The FBI told me they had got a lot of good information from him," Scull said. "They thought he was credible. . . . Going in, they pretty much assured me that he had been good to them."
Arizona detectives learned of the faked tape during an interview with Sarivola in New York on Aug. 28, 1984. A twelve-page police report of that interview noted that Sarivola said he faked the tape because the FBI was pressuring him to get Franzese.
"[Sarivola] stated that was the only time he had lied to the police officials about anything concerning his involvement with the FBI cases," the report stated. "He also stated again that he has been totally truthful about the statements concerning Fulminante and the [Jeneane] Hunt homicide."
Frank Koopman, Fulminante's lawyer in his first trial, also knew of the faked tape, and used it in the trial in an unsuccessful attempt to discredit Sarivola.
Scull said that the faked-tape incident had no impact on the jury because "they believed him. He explained it. He said he was under a lot of pressure to produce for the FBI, so he produced."
Sarivola's credibility also got a boost during the trial from Ticano, his FBI contact. Testifying in Maricopa County Superior Court on Dec. 12, 1985, Ticano said: "Information I received from Tony–most of the information–was verified rom independent investigation or from other source information–source information meaning other informants." Ticano, citing the upcoming retrial of Fulminante in Arizona, declined comment for this story. But not everyone in the Justice Department shared Ticano's faith in Sarivola.
The man who negotiated Sarivola's deal with the government, Edward McDonald, attorney-in-charge of the Organized Crime Strike Force for the Eastern District of New York, called Sarivola "a nut job."
"He proved to be totally incredible," McDonald said.
The U.S. Supreme Court never ruled on Sarivola's credibility, but the justices had their doubts. "The inadmissible confession to Anthony Sarivola was itself subject to serious challenge," the high court wrote. "Sarivola's lack of moral integrity was demonstrated by his testimony that he had worked for organized crime during the time he was a uniformed police officer. . . .
"His eagerness to get in and stay in the Federal Witness Protection Program proved a motive for giving detailed information to authorities."
Tony Sarivola did not testify at Fulminante's retrial, and Donna Sarivola failed to appear at three pretrial conferences, forcing the trial judge to forbid the prosecution from using her as a witness. Nevertheless, in 1994, Fulminante was convicted again for the murder of Jeneane Hunt; and, once again, he was sentenced to death.
However, in 1999, the Arizona Supreme Court ruled that Fulminante must be given a third trial because the jury in his second trial had heard inadmissible testimony about Hunt's fears that her stepfather planned to kill her.
Meantime, the allegation about Franzese's payoff to Bush remains unproven.
