The Federal Case Is Opened
In mid-2000, FBI agent Henry Schlumpf, with whom I had worked a major case – the Harrah’s casino robbery – came to me with a cold case; an atypical federal matter. Major police departments have squads dedicated to pursuing investigations which remain unsolved years after the crime is committed, but this was new to me.
I never asked whose idea it was, but Henry had spent considerable time going through old files from what he described as the biggest case in Las Vegas history, in terms of resources dedicated to it. He came to me, in my capacity as the Violent Crime Chief, and asked me to approve the use of, and payment to, a confidential informant (“CI”) referred to only by a code name: Baxter.
The AUSA sign off is largely a formality, as long as the prosecutors trust the agent. I trusted Henry. We had worked together on a major case that involved a criminal enterprise by Los Angeles Crips and Bloods. who terrorized casinos and banks for two years before we sent the leaders/organizers away and stopped it cold.
He gave me the rundown. 22 years earlier, when I was still in law school, Sol Sayegh was a Vegas millionaire-businessman. In the fall of 1978, he had also been indicted by Organized Strike Force prosecutor Lawrence Leavitt in a political corruption case. Sayegh had allegedly tried to bribe the head of the Nevada Gaming Commission, future Majority Leader of the U.S Senate Harry Reid.
A rather strange 40-year old, gnome-like man, the product of a large old school Mormon clan, Jerald Burgess bragged that his “Grandaddy settled Moapa” and had sired 54 offspring. Burgess had apparently had some involvement in the jewelry business, but by 2000 his true work history was fuzzy. According to old friends he was a tough guy who liked women and guns, and didn’t like to pay federal taxes
Burgess had a girlfriend who worked as a teacher at the Einstein school. Her son was about the same age as Carey. For some reason, Jerald Burgess got it in his head that he would intervene in Sol Sayegh’s case. He visited Sol at his home, and offered to “take care of” Harry Reid – the alleged victim in his bribery case – for him.
Sayegh thought Burgess, who had nothing to do with the matter, was crazy, and had his wife throw Burgess out of the house. Thus was apparently borne a grudge in the twisted mind of Jerald Burgess, a grudge that would have dire consequences for Sol Sayegh and his family.
Shortly thereafter, Burgess started bringing lunch to his girlfriend’s son at the Einstein School. Wednesday, October 25, was the occasion of one such lunchtime visit to the school. After recess, the girlfriend’s son returned to class; little Carey did not. A frantic search resulted. It was learned that Jerald Burgess had been seen talking to Carey in the school playground. In fact, he was the last person seen with Carey. The school, and then the police who were summoned, tried to contact Burgess. They could not locate him. Little Carey had vanished, and the adult last seen with him was mysteriously out-of-pocket.
A horrific criminal episode had begun. No trace of Carey was found that afternoon. After several hours, however, Burgess was located, at around 6:30 p.m. He offered no helpful information, nor anyone who could confirm his whereabouts for the previous six hours.
Then his behavior took an even more bizarre twist. He began to demonstrate an incongruous concern for the boy. He began to “investigate” Carey’s disappearance himself. He said he was “working” the streets, “spreading money around”, in the hope of gaining information about the boy’s whereabouts. It was all rather strange, particularly in light of the hostility he bore toward Sol. Add the fact that he was the last person seen with Carey, and it became more than odd.
Things got even more bizarre. Burgess contacted Sol’s lawyer, Oscar Goodman, and claimed he had been contacted by kidnappers who had abducted Carey. The circumstances of the contact strained credulity. According to Burgess, he had been pounding the pavement up on the Strip, Las Vegas Boulevard, seeking leads in the case, when a payphone he was passing on the street rang. A stranger picked it up, answered the call, and asked, are you Jerry Burgess?
Burgess took the phone, and a man informed him that he had kidnapped Carey and was holding him for ransom. For some inexplicable reason, Burgess would have the authorities believe that the perpetrators of this despicable crime had chosen him to be the middleman between themselves and Sol Sayegh.
Burgess said he had provided the kidnappers with the ransom they demanded, using $25,000 of his own money, and he wanted reimbursement. The desperate family obliged; Burgess would later put their money down on a house.
The authorities allowed Burgess to play it out. At one point, he said the kidnappers had called and told him where one of Carey’s shoes could be found. Subsequently – horrifically – one of the shoes Carey had been wearing the day he’d disappeared was indeed recovered – just where Burgess said it would be. This was not merely a shakedown; Burgess’ connection to this abomination was as plain as day.
The investigation continued. What was not known at the time, because it had yet to be reported by his teacher girlfriend, was the following chilling fact: Burgess had sexually assaulted her – a crime for which he would eventually be charged with and convicted – a week before the disappearance of Cary. Burgess had invited her to take a ride with him one day after school. He took her from the Einstein School to the desert, where he brutally raped her. In hindsight, it seems as if Burgess was suffering a meltdown of some kind.
The FBI’s Behavioral Science Unit characterized Burgess as a psychopath.
In 1981, Jerald Burgess was charged with Carey’s kidnapping. In addition to the rape, he had been convicted, in 1979, of federal fraud and tax charges, unrelated to the kidnapping, and was doing a 10 year sentence. Mel Harmon, a legendary prosecutor with the Clark County District Attorneys Office, tried the kidnapping case. It resulted in one of the few acquittals in Harmon’s long career. The result, I’ve been told, was due in no small part to Burgess’ calculated misconduct during the trial (like yelling out that he had passed a polygraph, evidence which is inadmissible, so the jury could hear it).
For humanitarian reasons, the bribery case against Sol Sayegh would be dismissed by prosecutor Leavitt; the bribery allegations were insignificant compared to the loss of Sayegh’s child.
In 1989, Burgess was released from prison and married his old girlfriend Phyliss. They moved into her home and he’d lived quietly, by all accounts almost reclusively since.
Henry Schlumpf’s Plan: a Worthy Cause
Henry Schlumpf’s curiosity and interest as an investigator were piqued by the Carey Sayegh case. But to me, a father, it was much more than that. As I’ve said this case immediately brought to my mind the tragic Adam Walsh case. Both were 6. Adam went missing in 1981, and a gut wrenching made for television movie about him came out in 1983, when I was a still a cop. I remember sobbing during the scene when Daniel J. Travanti, portraying John Walsh, learns that his son is dead, beheaded by some demon. His 1997 book Tears of Rage had also led me to tears, and rage, over a bungled investigation that must have been nearly unbearable for he and his wife.
I have always admired how John Walsh turned that unspeakable event into something good: his television show America’s Most Wanted, which regularly resulted in the apprehension of the scum of the earth. A few of my “clients” were featured on AMW and Unsolved Myteries as well.
In any event, the Walsh case was a factor in my decision to become a prosecutor. The image of little Adam, his smile revealing missing front baby teeth, with his baseball cap on, clutching a little bat, can still cause me to choke up. The image of Carey Sayegh reminded me of Adam.
No one with a heart, and certainly no one with kids, could be unmoved by the story of this innocent child. It didn’t take much convincing on my part, this was a worthy endeavor. Remember, Burgess had been charged, prudently, only with kidnapping in state court. Because the elements of murder were not the same as those for kidnapping, double jeopardy would not prohibit a murder charge; nor was there a statute of limitations for murder. We both felt that even if no case against Burgess was ever brought, just recovering Cary’s remains might bring some degree of comfort to his family.
Henry decided he needed to get someone close to Burgess, someone who could gain his confidence, maybe get him to make some admission regarding what he had done with Carey’s body. Henry recruited a career confidence man, Franklyn Perry.
I knew Perry’s name well, although in a slightly different context. A very competent paralegal in our office used to handle most of the post conviction habeas matters, “2255s” as per the applicable federal statute. Perry filed many. Whenever a new one came in, I would hear her bellowing from down the hall, “Another 2255 from Franklin Fucking Perry!’ It got to the point that when speaking to her about him, I began jokingly using his initials – FFP.
She would later be convicted of embezzling over a million dollars from the U.S. Marshall’s Service, by dummying up our office’s vouchers, in order to pay witnesses who didn’t exist. She forged several Supervisory AUSA’s names, including mine. Sadly, she ended up spending several years in federal prison herself. Her motive: gambling. Vegas.
She was represented by Frannie Forsman, Nevada’s Federal Public Defender, who later reminded me that I has made an appearance in one of Perry’s many post conviction matters which in which he was represented by “True Believer” Tony Serra (see movie starring James Woods). I would have a major case with Tony and several other “Pier 5” San Francisco lawyers many years later.
Confidential Informants – A Necessary Evil
I knew him only as “Baxter” at first. Agent’s like to use the code names so they don’t slip and mention the CI’s true name at an inopportune moment. I’m sure he was unaware that I knew anything about Perry, so this was understandable. Not knowing who the CI was, I still urged Henry to do the usual careful monitoring. Defendants routinely claim entrapment when the government uses a CI. In a case like this, where there would be many, many undercover meetings between the CI and the target, it would be critical to be able to show that the target’s will was not overborne (a legal standard) by the CI, i.e. entrapped. In an ideal world, recording every contact would ensure that. However, resources and circumstances rarely make that possible, particularly in such an open ended and protracted investigation as this. In any event none of “Handling Informant’s 101” was done.
The next best thing would be pen registers and traps and traces on all relevant phones. These are devices that generate a record of the phone numbers called from a phone as well as the numbers from which a call was received by the phone. This would, to some degree, allow us to monitor the number of telephonic contacts between CI and target. (A target claiming entrapment will invariably claim the CI called him all day, every day, badgering, cajoling, and threatening the target to commit the crime he would not otherwise have even considered).
It is best not to even let the CI know his phone usage is being monitored, for obvious reasons. Another good integrity test for the CI is the occasional “pop in” visit to search his home, just to make sure everything’s kosher.
Of course, none of these methods is fool proof, but as a prosecutor you want to at least be able to argue at trial that your agents took reasonable measures, made his best good faith effort, to ensure their CI was on the up and up. You want to be able to tell the jury that you agree this person is not to be trusted, and you would never ask them to trust him without strict handling by the case agent as well as corroboration.
In this case, I particularly wanted a pen on the CI’s cell phone because I had been told Burgess did not have one, and all contacts were made by him using various payphones. A trap and trace on the CI’s cell phone, would show all incoming calls from Burgess, and demonstrate that he was reaching out to the CI, and not the other way around.
Little of what I requested was done, CI-wise. Few conversations were recorded, no pens or traps were put up, no surprise visits to his apartment were conducted. Every case has problems, but I had no idea what a monumental problem Perry would become. Ultimately, we were constrained not to even call our own CI as a witness.
As the investigation played out, and Perry gained Burgess’ confidence, Burgess began talking about killing people and disposing of their bodies in acid filled metal barrels which would be hidden away forever, and about guns. He even made veiled references to Carey, one of which was recorded. Henry instructed Perry to encourage such talk, but not to create it. The difference between giving a criminal the opportunity to commit a crime and causing him to commit one he wasn’t inclined to otherwise is the difference between conviction and acquittal.
Eventually Burgess provided a gun to Perry, a 22 equipped with a rudimentary silencer. We could have stopped and charged Burgess, but our focus remained Carey. Perry was instructed to play it out, and a brilliant new scenario was introduced into the mix.
A Brilliant Scenario Is Born
Henry came up with it. Burgess would be visited by an FBI agent who would claim he was investigating Perry, our CI. Perry would later confirm to Burgess that he was, in fact, under investigation by the FBI. In addition, he was being threatened by his partner’s nephew, one Devon McGillicuddy.
Perry would then confide to Burgess that he had killed McGillicuddy. He would show Burgess a photo of the body, staged and depicting a deceased version of “Devon McGillicuddy”.
Subsequently, Henry would visit Burgess, to inquire about the agent who was investigating Perry, who was now missing. Burgess would be shown the agent’s credentials. It was “Devon McGillicuddy”, his UC name.
Perry would explain that, using the .22 pistol and silencer that Burgess had provided him, he had murdered McGillicuddy, then placed the gun, silencer, and his body in a barrel with acid, using the very method Burgess had detailed with respect to Carey. Now, Perry would need Burgess to place the barrel containing the agent’s body and the evidence typing Burgess to it where it would never be found, as he had with Carey.
If Burgess didn’t play along, he would run the risk of law enforcement finding a barrel like the one he talked about with Perry, containing a dead FBI agent and a murder weapon bearing his fingerprints.
A fanatastic plan. But would Burgess bite?
The answer is upcoming, including a television appearance by yours truly.
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