“They’re one and the same. The Vegas case.”
“What about his arrest in Ventura County eleven months before his death?”
Drucker looked down at the open murder book in front of him.
“I have nothing on that,” he said.
I opened the file Maggie had given me. The moment was precious. I knew I was about to put another hit on the house—a big hit—and it was a moment any trial lawyer would savor.
“Your Honor, may I approach the witness?” I asked.
The judge granted permission and I walked forward with the arrest report that had been anonymously slipped under my front door. I handed a copy to the clerk and then one to Dana Berg before putting a third copy down in front of Drucker. As I made my way back to the lectern, I casually checked the gallery, nodded surreptitiously to my daughter, and looked beyond her to the back row. I saw Agent Dawn Ruth. We locked eyes for a moment before I turned back to face Drucker. I knew I had to move quickly because as soon as Berg confirmed that a copy of the arrest report was not in the defense’s discovery file, she would raise holy hell.
“What is that, Detective Drucker?” I asked.
“It looks like an arrest report from the Ventura County Sheriff’s Office,” he said.
“And who is the arrestee?”
“Sam Scales.”
“Arrested when and for what?”
“December first, 2018, for operating a fraudulent online fundraiser for victims of a mass shooting in a bar in Thousand Oaks.”
“This is a standard arrest form, correct?”
“Yes.”
“At the bottom of the form, there are a series of boxes that are checked. What do they indicate?”
I checked the prosecution table. Berg’s bow-tied second was looking through files.
“One is marked ‘interstate fraud,’” Drucker said.
“And what does the reference to ‘FBI-LA’ mean?” I asked quickly.
“That the FBI’s office in L.A. was notified of the arrest.”
“Why did this arrest not come up on your search of Sam Scales’s criminal record?”
“He probably wasn’t charged and the arrest wasn’t put into the computer.”
“Why would that happen?”
“You’ll have to ask the Ventura sheriffs about that.”
“Is this what you would see when someone who is arrested agrees to cooperate with the authorities in some way?”
“Like I said, you’d have to ask Ventura about that.”
I checked the prosecutors again. Bow-tie was whispering to Berg now.
“Isn’t this standard operating procedure for law enforcement?” I asked. “To arrest someone for one crime in order to leverage their cooperation in a bigger investigation of a bigger fish?”
“I don’t know anything about this arrest,” Drucker said in an annoyed tone. “You have to ask Ventura. It was their case.”
In my peripheral vision I saw Berg start to stand to object.
“Sam Scales was an FBI informant, wasn’t he, Detective Drucker?” I asked.
Before Drucker could reply, Berg made the objection and asked for a sidebar. The judge checked the clock on the back wall and decided to take the midmorning break. She said she would hear Berg’s objection in chambers during the break.
As the jurors filed out, I returned to the defense table and sat down. Maggie leaned toward me.
“You got it in,” she whispered. “No matter what happens now, the jury knows he was an informant.”
I nodded. That was the big finish. That was the hit on the house.
48
Judge Warfield was upset and Dana Berg was livid. Neither bought my explanation for the discovery violation. That was when Maggie McFierce stepped up, willing to take the fall so the defense—my defense—could move on unscathed.
“Judge, this is my fault,” she said. “I dropped the ball on this.”
Warfield looked at her suspiciously.
“Do tell, Ms. McPherson.”
“As you know, Mr. Haller lost his co-counsel and I agreed to step in. It was late in the game and I have been playing catch-up, familiarizing myself with the evidence, the defense theory, and the prosecution’s case. Things have fallen through the cracks. As Mr. Haller has explained, the origin of the police report in question is unknown. It was slipped—”
“I don’t believe that for a second,” Berg cut in. “And if that is what you’re going to spin, you should never come back to the office and they should never take you.”
“Ms. Berg, let her finish,” Warfield said. “And don’t make it personal when you have the opportunity to respond. Continue, Ms. McPherson.”
“As I was saying,” Maggie said. “The origin of this document was unknown and, frankly, questionable. It had to be confirmed and we had an investigator on it. He confirmed it and it was moved into the case presentation file at the beginning of the week. I have been in court all week and organizing the defense presentation at night. There was a miscommunication between Mr. Haller and myself. It didn’t help that he is incarcerated and not available to me at a moment’s notice. It was my understanding that we were not going to introduce the arrest report until later in the week and that would give me time to turn copies over to the state and the court today. All of that changed this morning when we learned from our investigator that Detective Rountree from the Ventura County Sheriff’s Department was in town today and could testify.”
There was a slight pause as we waited for the judge to react to the explanation. But Berg reacted first.
“This is such bullshit,” she said. “They planned it this way from the start so my detective would be blindsided in front of the jury.”
“He wouldn’t have been blindsided if his investigation was as thorough as he claimed,” I said.
“Hold it right there,” Warfield said. “We’re not going to turn this into a boxing match. And Ms. Berg, I would check that language unless you want to be the only one who leaves here with sanctions.”
“Your Honor, you can’t be serious,” Berg erupted. “You’re giving them a pass on this?”
The outrage was clear in her voice.
“What would you have me do, Ms. Berg?” the judge asked. “The document is clearly of importance to this case. What’s your solution? Withhold it from the jury because of the defense’s misdeeds, intentional or not? That is not going to happen. Not in my courtroom. This is a search for truth, and there is no way on God’s green earth that I am keeping the document or the defense’s investigation of it from the jury. Look at yourself, Ms. Berg—this is evidence that should have been brought forward by the state. And if I find out that this is something the D.A.’s Office did have and deep-sixed, then we will really see some sanctions.”
Berg seemed to shrink two sizes in her seat under the judge’s withering comeback. She dropped off the offensive and immediately moved to her own defense.
“I can assure you, Judge, that neither I nor the D.A.’s Office knew a thing about this until it was brought up in court by the defense,” she said.
“That is good to hear,” Warfield said. “And let the court remind you that there have been multiple violations of discovery by the People resulting in no sanctions and just one instruction to the jury. I am willing to make an instruction in this matter but would be concerned that it would accentuate the cause of the defense in bringing this document forward.”
The judge was saying she was willing to tell the jury that the defense broke the rules, but that admonishment might serve to simply underline the importance of the arrest report.
“That won’t be necessary,” Berg said. “But, Your Honor, once again, rules have been intentionally broken and the defense should not simply be allowed to walk away. There should be consequences.”
Warfield looked at Berg for a long moment before speaking.
“Again, what would you have me do, Ms. Berg?” she asked. “You want counsel cited for contempt? You want them fined? What is
the appropriate financial penalty for this?”
“No, Your Honor,” Berg said. “I think the penalty should be the witness. Counsel mentioned that the Ventura County detective was in town and would testify. I request that the court disallow his testimony as—”
“The defense objects to that,” Maggie said. “At minimum, we need Detective Rountree to authenticate the report. He also needs to explain what happened with the FBI. He has driven down all the way from—”
“Thank you, Ms. McPherson,” Warfield cut in. “But I think Ms. Berg has come up with an equitable solution to this trespass on the rules of discovery. The report comes in as a defense exhibit but not the witness.”
“Your Honor,” Maggie pressed. “How do we explain to the jury the significance of what happened?”
“You’re a smart lawyer,” Warfield said. “You’ll find a way.”
The answer left Maggie speechless.
“I think we are finished here,” Warfield said. “Let’s go back out and, Mr. Haller, you can continue your examination of the detective.”
“Your Honor,” I said, “I think I am finished with the detective and ready to move on.”
“Very well,” Warfield said. “Ms. Berg can cross-examine if she wishes. Court will resume in ten minutes.”
We filed out of chambers and headed to the courtroom, Berg sullenly following Maggie, me, and Deputy Chan, a required part of the procession since I was in custody.
“I hope you can live with yourself after this,” Berg said to Maggie’s back.
Maggie turned to her without breaking stride.
“I just hope you can,” she said.
When court resumed, Berg had a handful of questions for Drucker but she stayed away from the Ventura County arrest and did little more than some clarification work on the detective’s previous answers. In the meantime, Maggie went out into the hallway to tell Detective Rountree that he had driven a long way from Ventura for nothing, and to prep Art Schultz and bring him in when Drucker finally stepped down.
By prior agreement, Schultz was to be Maggie’s witness. I wanted her to play it like a prosecutor and use Schultz to bring out the details of the crime that I believed were at the heart of the case.
Schultz was a Trojan horse. He had been added to our witness list as a retired biologist with the Environmental Protection Agency who would discuss the material found beneath the victim’s fingernails. This was to make him appear inconsequential. The hope was that Berg’s investigators wouldn’t bother or would be stretched too thin with other case priorities to speak to him in advance of his testimony. That had worked and now he was going to take the stand, where Maggie would use him to plant the tent pole that would hold up the defense theory and case.
Schultz looked like he had retired early, possibly to move into a career as an expert witness on all things EPA-related. He was early to mid fifties, trim and fit, with a deep tan. He wore steel-rimmed glasses and a wedding band.
“Good morning, Mr. Schultz,” Maggie began. “Can we begin with you telling the jury who you are and what you do for a living?”
“I’m retired now but I spent thirty years with the Environmental Protection Agency,” Schultz said. “I was in the enforcement division and primarily worked in the West, my last office being in Salt Lake. I stayed there when I retired three years ago.”
“Are you a biologist by training?”
“Yes, I am. Have degrees from UNLV and the University of San Francisco.”
“And you were asked to analyze the material found under the fingernails of the victim in this case, is that correct?”
“Yes, it is.”
“And what did you identify the material as?”
“I agreed with the findings of the medical examiner that is was a mixture of materials. There was chicken fat and vegetable oil. A small percentage of sugarcane. It was what we called feedstock. Restaurant grease is basically what it is.”
“When you say ‘we,’ Mr. Schultz, whom do you mean?”
“My colleagues in EPA enforcement.”
“And you dealt with feedstock—restaurant grease—in EPA enforcement?”
“Yes. I was assigned to enforcement of regulations regarding the EPA’s biofuel program. That program is about renewable fuel—recycling feedstock into biodiesel fuel. It is a program designed to reduce our national dependence on oil from the Middle East.”
“And so, why was there a need for enforcement?”
Berg stood and objected, spreading her hands and expressing her puzzlement at what this line of questioning had to do with the case at hand.
“Your Honor,” Maggie responded. “I’m asking for the court’s indulgence. It will become critically clear very soon what this has to do with the killing of Sam Scales.”
“Proceed, Ms. McPherson, but get there soon,” Warfield said. “The witness may answer the question.”
Maggie repeated the question. I had positioned myself so I could watch most of the jurors. So far no one appeared bored, but we were moving into a stage where the leaps between the steps of the defense case were getting wider. We needed their full attention and patience.
“Enforcement was needed because where there is money, there is always going to be fraud,” Schultz said.
“Are you talking about government money?” Maggie asked.
“Yes. Government subsidies.”
“How did that work? The fraud, I mean.”
“It’s a costly process. Waste fuel, feedstock, whatever you want to call it, has to be collected before it even gets to the refinery. You don’t pump it out of the ground like crude oil. It is collected through recycling centers, trucked to the refinery, then processed, sold, and shipped back out. To encourage the conversion of refineries to biofuel, the government started a subsidy program. Basically, the government pays the manufacturer two dollars a barrel for manufacturing biofuel.”
“What would that mean in terms of, say, a tanker truck full of renewable fuel?”
“A tanker truck carries about two hundred barrels. So that would be four hundred dollars paid to the refinery every time the truck leaves with its payload.”
“And that’s where the fraud is?”
“Yes. My last big case was in Ely, Nevada. A refinery up there. They were running a scheme, running the same oil in and out of the plant. They had a fleet of tankers that were going in and out with the same cargo. They would change the labeling only. In basic terms, it would say ‘feedstock’ coming in and ‘biodiesel’ going out. But it was the same stuff, and they were collecting four hundred dollars a pop. They were running twenty-five trucks and were taking a hundred thousand dollars a week off the government.”
“How long did that go on?”
“About two years before we got onto them. The U.S. government lost about nine million on the deal.”
“Were there arrests and a prosecution?”
“The FBI came into it and shut it down. There were arrests and people went to prison, but they never caught the main guy.”
“And who was that?”
“Unknown. The FBI told me it was run by the mob out of Vegas. They used somebody as a front to buy into the refinery and then the fraud started.”
“Did this scam have a name?”
“The scammers called it ‘bleeding the beast.’”
“Do you know why it was called that?”
“They said that the U.S. government was the beast. And it was so big and had so much money that it would never notice what was being bled off in the scam.”
Berg stood again.
“Objection, Your Honor,” she said. “This is an interesting story, but how does it tie into Sam Scales being found shot to death in the defendant’s garage and then found in the trunk of the defendant’s car?”
I had to admire Berg for mentioning the two key elements of her case in her objection, reminding the jurors to keep their eyes on the prize.
“That is the question, Ms. McPherson,” Warfield said. “I have to
admit I am growing a bit weary, waiting for things to connect here.”
“Your Honor, just a few more questions and we will be there,” Maggie said.
“Very well,” Warfield said. “Proceed.”
I heard the soft bump of the courtroom door closing and turned to check the gallery. Agent Ruth was gone. I guessed that she knew what at least one of the two last questions to Schultz was going to be.
“Mr. Schultz, you called this the last big case you were involved in,” Maggie said. “When was it?”
“Well,” Schultz said, after pausing to remember the details, “as far as we know, the fraud started in 2015, and we caught on and closed it down two years later. The prosecutions of some of the lower-level players came after I retired.”
“Okay, and you said that when the fraud was discovered, you notified the FBI. Correct?”
“Yes, the FBI took it over.”
“Do you remember the names of the case agents who handled the investigation?”
“There were a lot of agents but the two they put in charge of it were from here in L.A. Their names were Rick Aiello and Dawn Ruth.”
“And did they tell you the case you were involved in was unique?”
“No, they said it was happening at refineries all over the country.”
“Thank you, Mr. Schultz. I have no further questions.”
49
The testimony from Art Schultz was key to our case, but more than anything, it was his last few answers that really put us in play. The mention of the FBI agents by name gave us some leverage and we intended to use it. With Opparizio dead, it might be my only way to an NG.
While I watched Dana Berg complete a perfunctory cross-examination of the retired EPA biologist, Maggie McFierce went out into the hallway with her laptop to compose a court order that we would submit to the judge for consideration. She was back by the time Berg was finished with Schultz. I stood and said the defense needed to address the judge outside the presence of the jury and the media. Judge Warfield considered the request, then reluctantly sent the jurors off to an early lunch and invited the lawyers to her chambers.
The Law of Innocence Page 33
