Lawyers move to seal FBI affidavit in Binion slaying

Thursday, Oct. 25, 2001 | 9:46 a.m.

Just hours after it was made public, defense and government attorneys moved Wednesday to seal a 1999 FBI affidavit that obtained permission to conduct wiretaps on possible "co-conspirators" in the slaying of Ted Binion.

A stipulation asking a federal judge to keep the 62-page affidavit under wraps was signed by Assistant U.S. Attorney Eric Johnson and Assistant Federal Public Defender Michael Kennedy, who represents Robert Marshall, one of the targets of the affidavit.

The action followed a Sun report Wednesday disclosing the existence of the affidavit and the FBI's secret probe into Binion's Sept. 17, 1998, slaying.

For now, the affidavit remains a public document. A federal judge would have to approve the attorneys' motion for the affidavit to be sealed.

The affidavit, which also refers to a wide range of other alleged criminal matters unrelated to the Binion case, contains the names of several well-known Las Vegans who have not been charged with a crime.

Kennedy had attached the affidavit, written by FBI Agent Gerald McIntosh, to a motion Tuesday seeking to prohibit the government from using it against Marshall, who is behind bars on federal drug charges. Marshall, a four-time convicted felon, never was considered a suspect by local prosecutors in Binion's death. Neither were others named in the affidavit.

On Wednesday Kennedy said he changed his position and wanted the affidavit kept secret to protect the interests of his client.

"I determined it would be in his best interest to enter into the stipulation now so we can preserve our best case in court," Kennedy said.

Johnson, a member of the U.S. attorney's Organized Crime Strike Force, acknowledged signing the stipulation, but he declined comment.

The affidavit sought permission to wiretap members of a local "criminal organization" allegedly linked to Marshall to see whether any of them participated in Binion's slaying.

Wiretaps were conducted from December 1999 through March of this year, but there was no word on whether any of the secretly monitored conversations picked up information about the murder case.

Chief Deputy District Attorney David Roger, the lead Binion prosecutor, said he never was informed of the FBI's interest in the homicide investigation. He said if anything substantive had been gleaned from the wiretaps, FBI agents likely would have passed it along to him.

Herb Sachs, a lawyer for Sandy Murphy, who later was convicted with Montana businessman Rick Tabish of killing Binion, said he expected to use the newly discovered affidavit to help his client win a new trial.

The wiretaps were authorized on Dec. 13, 1999, by then U.S. District Judge Johnnie Rawlinson after McIntosh alleged among other things that he was looking for evidence of "co-conspirators involved in the conspiracy to kill Teddy Binion."

McIntosh said he also wanted to monitor conversations about alleged drug trafficking, money laundering and illegal gambling as part of a wide-ranging racketeering probe of the criminal organization.

The FBI, McIntosh said, had a confidential source who was providing agents with information about the 55-year-old Binion's "suspicious death."

At the time, Murphy and Tabish already had been charged by local authorities with killing the wealthy gambling figure. Both were convicted on May 19, 2000, and later ordered to spend more than 20 years in prison before being eligible for parole.