37

At the Miami Outboard Club, Mayor Clark advised Mr. Gordon that he had learned from an authoritative source that Mr. Gordon was using his name in Hialeah. According to the mayor, Mr. Gordon denied that he was using the mayor's name and denied that he was doing anything wrong. Mr. Gordon then pressed Mayor Clark to identify his source, and the mayor eventually stated that the source was Judge Hastings.37

On September 9, 1985, the FBI became aware that confidential information had been leaked, when Mr. Gordon told an acquaintance about his meeting with Mayor Clark in a conversation that was monitored. Representatives of the FBI, the Public Integrity Section of the Criminal Division of the United States Department of Justice, and the United States Attorney's Office met to determine whether the undercover investigations could continue. It was decided that both the investigation into union corruption and the zoning investigation would have to be terminated because of Mr. Gordon's involvement. The union investigation had become too risky for the undercover source, Johnny Rivero. The zoning investigation was no longer viable because Mr. Gordon had immediately suspected Gino, and had asked Mr. Rivero to check out Gino. He also launched his own investigation of Gino. The cocaine deal involving corrupt police officers was considered to be sufficiently isolated from Mr. Gordon to be safe, and, in fact, that operation was successfully completed and resulted in arrests and convictions. 5. Investigation of the Disclosure

In an effort to determine whether Judge Hastings had in fact disclosed confidential information to Mayor Clark, the Department of Justice focused its investigation on Kevin "Waxy" Gordon. Mr. Gordon had on several occasions offered to obtain drugs for Mr. Rivero, an offer which Mr. Rivero had been instructed to avoid in the past in order to keep the investigation from being sidetracked. Now Mr. Rivero was instructed to accept Mr. Gordon's offer, and in October 1985 two undercover buys were arranged. Mr. Gordon was arrested and on November 20, 1985 he executed a plea agreement in which he agreed to cooperate with authorities.

37 There are numerous accounts of the conversation between Mayor Clark and Mr. Gordon on that day. On September 9, 1985, three days later, Mr. Gordon recounted the meeting to an attorney in a conversation that was monitored by the FBI. On September 10, 1985, Mr. Gordon met Mr. Rivero and told him about the meeting with Mayor Clark, and on September 11, 1985, Mr. Gordon and Mr. Rivero discussed it again in a monitored telephone conversation. Mayor Clark described the meeting in a conversation with Mr. Gordon on January 17, 1986, whi corded without his knowledge in his statement to the FBI on March 13, 1986 and in his testimony before the grand jury on March 20, 1986. All of the accounts are generally consistent.

was re

On several occasions, Mr. Gordon stated that Mayor Clark said that the judge had warned the mayor that Mr. Gordon was using both Mayor Clark's name and Mr. Ferguson's name while putting together a deal with a councilman in Hialeah. Mayor Clark does not say that the judge mentioned either Mr. Ferguson or a councilman from Hialeah.

When Mr. Gordon recounted the meeting to Mr. Rivero, he stated that Mayor Clark had told him that Judge Hastings said the phones at the Surfside City Hall and at Mr. Gordon's home were wired and there was an investigation going on in Hialeah. In that account the judge is reported to have said, "If Kevin is a friend of yours, tell him not to do anything in Hialeah." Mayor Clark denied that Judge Hastings had said anything specifically about the wiretap or about the FBI investigation. According to Special Agent Santini, when Mr. Gordon was arrested and debriefed he stated that Mayor Clark did not say anything about the wiretap or the FBI investigation. Similarly, in a September 1985 conversation with Mr. Rivero, Mr. Gordon stated that it was Mayor Clark, not the judge, who had said that if Mr. Gordon was doing anything in Hialeah, he should "back off."

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A plan was developed whereby Mr. Gordon would wear a body recorder and attempt to engage Mayor Clark in a conversation in which Judge Hastings' disclosure would be discussed. Mr. Gordon was successful in obtaining body recordings of two of the participants in the September 6, 1985 conversation at the Miami Outboard Club. On December 18, 1985 he recorded a conversation with Mr. Ferguson in which Mr. Ferguson suggested that Johnny Rivero was an undercover narcotics agent. On January 17, 1986, Mr. Gordon spoke with Mayor Clark, who again recounted Judge Hastings' statement to him at the MMAP annual meeting.

Mr. Gordon died in February 1986. The FBI then approached Mayor Clark directly. The mayor admitted that Judge Hastings had spoken to him at the MMAP meeting and had warned him to stay away from Mr. Gordon because Mr. Gordon was "hot" and was using the mayor's name in Hialeah. Mayor Clark passed a polygraph test in which he was asked whether Judge Hastings had disclosed the information.38

In March 1986, both Mayor Clark and Special Agent Christopher Mazzella 39 testified before the grand jury about Judge Hastings' disclosure. Shortly after their testimony, a Miami Herald reporter learned of the fact of the testimony and the subject of the inquiry. The reporter confronted Mayor Clark and Judge Hastings, both of whom initially said that they had no comment. Judge Hastings called the reporter back the following day and stated that he had "searched his mind" the night before and his only recollection of seeing Mayor Clark was at occasional speaking engagements and that he was sure that he had not revealed any confidential information to the mayor. Judge Hastings did not contact either the FBI or the United States Attorney's Office about the leak.

In May of 1986, the Department of Justice decided to attempt to interview Judge Hastings. Special Agent Mazzella spoke with Judge Hastings on May 19, 1986. After obtaining Agent Mazzella's permission to have a court reporter make a record of their conversations, Judge Hastings did not think it was appropriate for him to discuss a Title III wiretap with Agent Mazzella. Judge Hastings stated that he would be willing to talk with representatives of the Public Integrity Section of the Department of Justice. On May 20, 1986, Eric Holder of the Public Integrity Section spoke with Judge Hastings. At that time the judge declined to be interviewed, stating that Mr. Holder would have to do whatever he planned to do without Judge Hastings' assistance and that he knew how the Department of Justice worked. Judge Hastings also asked Mr. Holder if he knew who Judge Hastings was.

Ultimately the Department of Justice decided not to prosecute Judge Hastings, in spite of its conclusion that Judge Hastings had disclosed the confidential information and had violated the law in

38 The Committee is aware of the controversy surrounding the use of polygraphs and recognizes their limited utility. The Committee is not suggesting that it condones their use as a substitute for traditional investigative techniques particularly in wide ranging, unfocused investigations. They have been shown to have some utility in answering specific questions once an investigation is already underway and clearly focused. In this case, the evidence as a whole is sufficiently persuasive that the Committee is confident in the conclusion it has reached.

39 Mr. Mazzella was the FBI supervisor of the investigation of the disclosure of confidential information.

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doing so. According to a Department of Justice memorandum, the ultimate decision not to prosecute "was not easy to reach" and was reached only after changing their minds "numerous times." 40 The Department of Justice perceived certain factual weaknesses in the case as a criminal prosecution, primarily because the encounter with Mayor Clark was one-on-one, albeit bolstered by circumstantial evidence corroborating Mayor Clark. Another difficulty was the lack of an obvious motive for Judge Hastings' disclosure to Mayor Clark. A significant factor in the decision not to pursue the matter as a criminal prosecution was the fact that any such prosecution in light of the acquittal of Judge Hastings on the bribery conspiracy charge would be "vastly complicated by charges of a prosecution motivated by race, politics and institutional vindictiveness." 41 The Department of Justice chose instead to initiate a complaint with the Eleventh Circuit under 28 U.S.C. 372(c).

Two additional issues which the Committee investigated, were the precise timing of the disclosure and the possibility of an alternative source of the information to Mayor Clark. Mayor Clark testified before the grand jury (and subsequently before the 1987 Investigating Committee and the Subcommittee) that at the MMAP meeting on September 6, 1985, at the conclusion of his speech, Judge Hastings approached him. While shaking his hand, Judge Hastings took him aside and before Mayor Clark could even say "Good morning," the judge warned him to stay away from Kevin "Waxy" Gordon. Mayor Clark tesuñed that he then left the meeting, returned to his office and called Mr. Ferguson to arrange a meeting with Mr. Gordon. The FBI monitored a call from Mr. Ferguson to Mr. Gordon at 8:58 a.m. that day which set up such a meeting. Judge Hastings, however, was not scheduled to speak until 9:05 a.m. By all accounts the program was running late and the speech was not concluded until after 10:00 a.m. Therefore, Judge Hastings could not have made the disclosure to Mayor Clark after the speech.

The Subcommittee heard evidence, however, that before the speech Judge Hastings spoke with Mayor Clark in the company of a third person, Monsignor Bryan Walsh. Testifying before the 1987 Investigating Committee Judge Hastings admitted such a meeting but denied that he had had a private conversation with the mayor before the program began or that he had made any improper disclosure. Monsignor Walsh testified before the Subcommittee that he, Mayor Clark, and Judge Hastings had exchanged greetings on the morning of September 6, 1985 before the speeches, but he did not know whether Mayor Clark and Judge Hastings had had a private conversation after the three of them separated. There are no witnesses to such a private conversation, and Mayor Clark testified that he had no recollection of meeting Judge Hastings and the monsignor before the speech.

A second issue investigated by the Committee was the possibility of an alternative source for Mayor Clark's information. This issue arose because of a telephone conversation on July 23, 1985 between

40 The Department of Justice memorandum is reprinted in Appendix IV of the Subcommittee Hearings.

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FBI Special Agent Tom Dowd of Miami and Glen Whittle, an aide of Mayor Clark. Mr. Whittle asked Special Agent Dowd to verify that the FBI had an investigation into the activities of "the man who married you" and Mr. Ferguson. Mr. Whittle said he had gotten this information from Special Agent Dowd's wife's boss. The man who married Special Agent Dowd was Mayor Clark, and his wife's boss was H. Paul Rico, the retired FBI agent who had posed as Frank Romano in the bribery conspiracy investigation. In addition, Special Agent Dowd was a friend of both Mr. Ferguson and Mr. Whittle.

Special Agent Dowd checked with his supervisors and was told to return the call and state that the requested information was confidential and that he "took exception" with the fact that Mr. Whittle would ask him for such information. Special Agent Dowd then called Mr. Whittle back, at which time Mr. Whittle said, “your wife's boss is a great kidder." Mr. Whittle was advised that he could interpret the call however he wanted but the call was not to be construed as a confirmation or denial of his suspicions.

In addition to whatever contacts Mayor Clark had with the FBI through Mr. Rico and Special Agent Dowd, the mayor also testified before the Subcommittee that he played golf with two FBI agents, Anthony Amoroso (who had been involved in the bribery conspiracy investigation) and Jerry Forrester.

The FBI and the United States Attorney's Office concluded that the inquiry by Mr. Whittle was of no significance because it did not affect the actions of the various participants in the ILA or the zoning schemes. Mr. Whittle called Special Agent Dowd approximately one week after the wiretap was instituted. At that date, there was no basis for concluding that Mayor Clark had anything to do with the investigation. Moreover, there were no conversations intercepted thereafter in which concerns about an FBI investigation were expressed. In fact, both Mr. Ferguson and Mayor Clark talked to Kevin "Waxy" Gordon about ILA and zoning matters subsequent to the July 23, 1985, inquiry by Mr. Whittle.

In comparison, the disclosure by Judge Hastings resulted in a dramatic change in conduct by Mr. Gordon after September 6, 1985. He immediately started questioning numerous friends about who might be the source of the "leaked" information. He devoted time to investigating Gino for himself-including visiting the office address Gino had given to him, asking someone at AT&T to find out if the telephone number for Gino's office actually rang at the office address, giving Gino's card to a banker friend to check, and reassessing the economics of Gino's business proposition to try to determine if it was an FBI operation.

The Committee concludes that no plausible basis exists for finding that someone other than Judge Hastings tipped off Mayor Clark.

6. Impact of the Disclosure

In early September 1985, the investigation into Local 1922 was stalled because various members of the ILA local were suspicious of the informant, Mr. Rivero. Prior to Judge Hastings' disclosure, however, representatives of the FBI and United States Attorney's Office had taken steps to enlist the aid of an ILA official who was

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coming to Miami to vouch for Mr. Rivero. Assistant United States Attorney Martinez and Special Agent Santini believed that person to be of such stature that his word would be sufficient to persuade Local 1922 to admit Mr. Rivero. When Mr. Martinez and Special Agent Santini learned about the disclosure, they immediately called off the official for fear of compromising him. At the time of the disclosure, the FBI and United States Attorney's Office believed they were very close to actually getting Mr. Rivero on the docks.

When Judge Hastings' disclosure was confirmed, two of three very important undercover operations had to be terminated. The waterfront investigation of Local 1922 was terminated because Kevin "Waxy" Gordon was in the center of the attempts to get Mr. Rivero into the union. Because Mr. Gordon had connections with a number of the union officials, as well as with Mr. Ferguson, who was not only Mayor Clark's campaign manager but also the marketing director for Fiscal Operations at the Port of Miami. This operation was now too risky to pursue. The investigation of the waterfront was approximately a year old, and it had to be abandoned before sufficient information was obtained to make any arrests.

The Hialeah zoning operation was also terminated. Mr. Gordon had immediately suspected Gino, the undercover agent who was posing as the businessman who wanted to set up the amusement center. Although that investigation had only begun in July 1985, the FBI had the cooperation of an amusement company to set up an amusement franchise, and extensive resources and personnel had been invested in the operation. In the opinion of law enforcement officials, the undercover operation was very promising until the leak. To the extent that any further operations dependent on Mr. Gordon were contemplated, they also had to be abandoned.

Because the United States Attorney's Office and law enforcement agencies feel they can no longer trust Judge Hastings, authorization for wiretaps is not sought during the months when he is the duty judge.

VI. ANALYSIS OF ARTICLES OF IMPEACHMENT

Article I

The Committee determined, based on an independent and thorough review of the evidence, that Judge Hastings participated in the 1981 bribery conspiracy with William Borders. Judge Hastings put the administration of justice up for sale, thereby undermining the integrity of the federal judiciary and the public's faith in the federal courts. For this reason alone, impeachment is warranted.

There is abundant evidence supporting the Committee's conclusion. As a threshold matter, the chronology of events (set forth in Part A of the Statement of Facts) presents in detail the correlation of events in the Romano case with the implementation of the bribery conspiracy. The chronology reveals a pattern of contact between Judge Hastings and William Borders that strongly suggests Judge Hastings' involvement. The evidence is circumstantial; however, one event after another ts to Judge Hastings' participation in the bribery scheme