Dead Man's Rule

by Rick Acker

  When court convened the next afternoon, Ben opened by calling Pavel Voronin, the Brothers’ accountant, to the stand.

  “Do you go to many monster-truck rallies, Mr. Voronin?” asked Ben.

  Pavel’s appearance fit the cruelest stereotypes of his profession: bottle-bottom glasses, thin shoulders, ultraconservative three-piece suit, and a bald head with a bad comb-over. “What?” he asked after a few seconds of silence.

  “Do you attend many monster-truck rallies?” Ben repeated.

  “No.”

  “Do you like to go deer hunting?”

  “No. I . . . uh . . . I have never gone deer hunting.”

  “How about bass fishing?”

  “I have never done that either.”

  Anthony Simeon stood up. Judge Harris looked at him. “I assume you’re going to object on relevance grounds.”

  “I am indeed,” replied Simeon.

  Ben had, of course, expected this. “I’ll tie all this up in the next couple of minutes.”

  “You’d better,” said the judge. “Objection overruled without prejudice.”

  Ben turned back to the witness. “What I’m trying to figure out, Mr. Voronin, is why every couple of months or so you make weeklong road trips through small towns in Iowa, Wisconsin, and Illinois. I thought maybe you had some hobby that took you out there, but I guess not.” Ben reached over and picked up a stack of documents from the counsel table. “Those were business trips, weren’t they?”

  Pavel’s face turned pasty white. Ben obviously knew things that hadn’t been disclosed in discovery. But you don’t know how much I know, do you? thought Ben. And you can’t make up your mind whether to tell the whole truth now. Since you’re a cautious little geek, I’m going to guess you’ll decide truth is the safest option.

  Pavel swallowed, his Adam’s apple bobbing in his reedy neck. “Maybe partially.”

  “The Brothers LLC maintains accounts at banks in each of the towns you visit. Isn’t that true?”

  He hesitated, now seeing clearly where Ben was going. “We try not to put all our assets in one place.”

  “And on these trips, you make deposits into each of those accounts. Isn’t that also true?”

  “I think that’s right.”

  “And the deposits are always less than $10,000 per account?”

  “I don’t remember every deposit I’ve ever made for the company.”

  “That’s okay. I’ve got the bank statements right here. These are collectively marked for identification as Plaintiff’s Exhibit Four. May I approach the witness?”

  The judge nodded.

  Ben handed copies to the judge, the witness, and Simeon. “Please look through these, Mr. Voronin, and tell me if you see a single deposit of $10,000 or over.”

  Simeon stood again. “I renew my relevance objection. Opposing counsel is obviously trying to establish that the witness has violated US currency-transaction-reporting laws. While that may pique Mr. Corbin’s curiosity, it has no bearing whatever on the issue before this Court.”

  Judge Harris turned to Ben. “For purposes of this case”—he looked ominously at Pavel—“why should I care whether the witness has been smurfing?” Smurfing is the illegal practice of evading federal reporting requirements on currency transactions of $10,000 or more by making multiple transactions of less than $10,000.

  “Two reasons, Your Honor,” replied Ben. “First, it impeaches the credibility of the witness by establishing that he engaged in criminally dishonest conduct. The second reason will become clear when I am through with this line of questioning.”

  The judge considered for a moment. “You may proceed, but I’m not going to let this go on for much longer.”

  “Thank you, Your Honor,” said Ben. Turning back to Pavel, he continued, “Did the Brothers authorize you to open these accounts and make these deposits, or is that something you did on your own?”

  “They authorized me to do all these things,” said Pavel. “And we were breaking no laws.”

  “How did they authorize you?”

  “We had a meeting and passed a resolution.”

  “Is it this resolution?” Ben pulled out his next exhibit and handed around copies.

  Pavel looked at it briefly. “Yes, this is the one.”

  “And the four of you passed that resolution because this was a significant business decision, correct?”

  “Yes.”

  “In fact, you told me during your deposition that your company passes resolutions authorizing all significant business decisions, didn’t you?”

  “I think so.”

  Now let’s see if you’ll tell the truth one more time. Ben pointed to the minutes on the easel. “And there’s the resolution authorizing the contract with Mr. Zinoviev, right?”

  Pavel sat silently for several seconds, his eyes darting furtively between the other Brothers and Ben. “I . . . No, that is a fake.”

  “But there was a resolution authorizing the contract with Mr. Zinoviev?”

  “I think so.”

  “Do you know why that resolution wasn’t produced in discovery?”

  “I do not know.”

  “Was it because you didn’t want my client and me to see it?” asked Ben, again pointing to the blowup.

  “No! I told you, that is a fake!”

  “Is that your signature on it?”

  “It looks like my signature, but I never signed it.”

  “No further questions.”

  Ben picked up his witness outline and sat down. That had gone as well as he could have hoped—or almost as well, anyway. The accountant had been on the brink of telling the truth about the minutes, but he backed away at the last second. Ben wished he could think of a way to push him that last step, but he’d used up all the ammo he had. Oh, well.

  Anthony Simeon took Ben’s place at the podium. “Mr. Voronin, did you ever hear Nicki Zinoviev and Dr. Ivanovsky agree to a contract for the sale of the contents of safe-deposit box 4613 at the LaSalle Street building of American Union Bank?”

  “No.”

  “Did you ever hear them agree to any contract at all?”

  “No.”

  “Have you ever heard them speak to each other at all?”

  “No.”

  “No further questions.”

  “Any rebuttal, Mr. Corbin?” asked the judge.

  “Yes, Your Honor,” said Ben as he approached the podium. “Mr. Voronin, do those minutes say that Mr. Zinoviev and Dr. Ivanovsky came to a meeting of the Brothers and agreed to a contract in front of you?”

  He looked at the minutes for a few seconds. “No.”

  “It says that Mr. Zinoviev ‘disclosed to the Members of the Company that he had entered into a prior agreement to sell the contents of the box to a third party.’” Ben picked up a sheaf of papers. “Did he do that?”

  Pavel looked anxiously at the documents in Ben’s hand, obviously worrying that Ben had another unpleasant surprise for him—which was precisely why Ben had picked them up. “I don’t remember.”

  “The Brothers entered into a $100,000 contract to buy the contents of a safe-deposit box—a contract that would completely evaporate if Nikolai Zinoviev had already sold those contents to someone else. And you don’t remember whether he told you he had done that?”

  “No.”

  Nuts. “No further questions.”

  The upstairs dining room at the Italian Village was decorated to resemble a quaint outdoor Italian piazza at night. It was almost entirely dark, lit only by strings of small lights along the walls, a faint glow coming from the starry dark-blue ceiling and the candles on each table. Ben could barely make out Irina Ivanovsky smiling quietly in the shadows, but her husband leaned forward into the candlelight. His face was clearly lit and seemed to float disembodied over the dinner table.<
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  “You are winning very well, Ben,” remarked an ebullient Dr. Ivanovsky, who had insisted on treating the Corbins to dinner. “And the judge is very, very angry with them because Josef Fedorov does not appear. I was worried when the trial started, but now I think this judge will give us the victory.” He nodded in agreement with himself. “Yes. I think we will win.”

  Ben took a cautious sip of the top-shelf vodka his client had ordered for them. “Thanks. I hope we win, but . . . Well, don’t get your hopes set on it.”

  “I thought things were going pretty well,” said Noelle, who sat beside Ben. “Is there some problem?”

  “The same basic problem we’ve had since Nicki Zinoviev died: Dr. Ivanovsky can’t testify under the Dead Man’s Rule, and without his testimony we don’t have any evidence that there was a contract.”

  “But we have these minutes that speak of the contract,” protested Dr. Ivanovsky around a mouthful of veal.

  “Yes, but we don’t have any evidence proving that the minutes are genuine,” explained Ben. “Both of the witnesses so far have claimed that the minutes are fake.”

  “But they were lying,” said Noelle. “And you caught both of them at it. Did you see the look on the judge’s face when he realized that Voronin guy had been smurfing? He also wasn’t real pleased by Brodsky’s new signature.”

  Ben smiled. “No, he wasn’t. And yes, they were lying. The problem is that their lies don’t prove the authenticity of the minutes. I’m having great fun beating these guys up on the witness stand, but so far I haven’t been able to make much progress in proving that there was a contract.”

  “I see,” said Dr. Ivanovsky, his wizened face now thoughtful and slightly downcast. “Is this why Mr. Simeon does not say many things?”

  Ben nodded. “He just sits back and watches while I put on my show. Then he gets up and says a few words to remind the judge that it’s only a show and that I haven’t really proven anything. Then he sits down again and waits for the next act.”

  “So when does the show stop?” asked Noelle. “When do you think you’ll be able to start proving there was a contract?”

  Ben took a deep breath and let it out slowly, gazing up at the faux Italian night sky. “My best hopes were these first two witnesses. There was a chance that I would be able to trick or pressure them into admitting that those minutes were real. But it didn’t work. I got in some good shots, but neither of them cracked.

  “Presuming Josef Fedorov doesn’t magically appear, the only two witnesses I’ve got left are Dmitry Kolesnikov and you.” He nodded to Dr. Ivanovsky. “Kolesnikov is a clever, slippery guy. I got nothing useful from him at his deposition, and I doubt I’ll get any more tomorrow. As for you, I’m expecting the judge to cut me off before you can say anything useful.”

  “If the judge cuts you, then what happens?” asked Dr. Ivanovsky, his face anxious and drawn in the flickering light from the candle.

  Ben gave a small shrug. “Then the show’s over and we go home.”

  CHAPTER ELEVEN

  A MATTER OF LAW

  Shamil watched the target park his car and go into the building. The night-vision binoculars gave the man’s face a strange greenish glow, but Shamil was used to it and had no trouble making a positive identification. He watched until the man’s light went out, then handed the binoculars to his subordinate, Umar, before clambering into the back of the windowless delivery van to get a few hours of sleep. “Let me know if he comes out. Otherwise, wake me at five thirty.”

  “Yes, sir.”

  The floor of the van was cold and uncomfortable, but no worse than the caves of the Chechen highlands. Still, Shamil had trouble sleeping. He never could relax on the night before an operation, and this time was no different. He lay awake for more than an hour, mentally rehearsing the plans for the morning. He finally forced himself to sleep by reciting over and over the specifications for the AK-104 assault rifle, which a deranged drill instructor had forced him to memorize in boot camp.

  It seemed only a moment later when Umar shook him awake. He quickly assembled his gear in the dark, not risking a light that might be visible from the building. He swallowed a couple of ration bars and some lukewarm coffee from a thermos, then quietly opened the rear door of the van. That was when he got his first unpleasant surprise: a carpet of new snow lay on the ground.

  He briefly considered aborting the mission, but decided against it. He could mask his footprints well enough by keeping to the edge of the alley, where the snow was thinnest.

  He ran lightly along the narrow strip of nearly bare concrete beside the retaining wall that formed one side of the alley, then crouched down between the wall and the target’s car.

  Then he waited. More snow fell, covering the faint prints he had left and turning his black commando coat a dusty gray.

  The sky began to lighten, and the everyday noises of a waking city increased. Car and truck engines coughed to life, followed by the wet whiz of vehicles driving through the slushy street at the end of the alley. A jet roared overhead. Tires squealed and two irate male voices held a brief but pointed conversation. Another jet thundered into the sky.

  Still, Shamil waited. He stretched and kneaded his cold arms and legs as best he could to keep the muscles loose, but it wasn’t easy.

  Then he heard the sound he had been waiting for. The door on the building opened and feet carefully descended the snowy steps, making soft scrunching noises as they went. Just a few seconds more. He took off his right glove and pulled his pistol out of its holster inside his jacket, where he had kept it warm and dry for maximum reliability.

  The steps reached the car and stopped. He heard the sound of car keys, meaning the target’s hands would be busy.

  Now. He stood up from behind the car and pointed his gun across the vehicle. He had meant to explode to his feet, but his muscles were cold and stiff and he moved a bit more slowly than he had intended. Too slowly. By the time he reached his feet and had his gun ready, the target had ducked behind the car and had pulled out his own gun, which was pointing at Shamil’s chest through the car windows.

  “Bang, you’re dead,” said the target.

  Shamil put away his gun and cursed as Umar got out of the van and several more men emerged from the building. General Shishani, his left arm in a sling, gave a black-eyed frown from the steps. “Let’s go inside and talk about what went wrong.”

  “Yes, sir,” Shamil said glumly.

  The men all trooped back inside and gathered in the cafeteria, where they sat around small tables and looked toward their leader. Umar got some hot tea for himself and made a cup for Shamil, who accepted it with a nod and a tight smile.

  “Shamil, tell us what happened,” said the general.

  “I was stiff from the cold and squatting for so long. I couldn’t move fast enough.”

  “Yes. And?”

  Shamil’s frustration boiled over. “And he knew I would be waiting for him.”

  “You think the test of your plan was unfair?”

  “Permission to speak freely?”

  “Of course.”

  “It was not fair,” Shamil said in a tightly controlled voice. “The Russian will be wary, but he will not know the time and place where we will strike. Arzu did, and that made the test unfair.”

  There was murmuring in the room, but General Shishani showed no emotion. “Your plan must be good enough to pass unfair tests. If you can capture a man who knows when you will strike, you can capture a man who does not. There will be unexpected problems when you execute your plan, and it must have a sufficient margin for error to account for them. My plan did not.” He held up his four-fingered hand, then pointed to his wounded arm. “You must do better, and I know you will. We will test you again tonight.”

  Ben arranged his notes on the courtroom podium and looked up at Dmitry Kolesnikov, who sat waiting in the witne
ss box. “Mr. Kolesnikov, is that your signature on Plaintiff’s Exhibit One?” Ben asked, pointing to the minutes.

  Dmitry studied the document briefly. “Yes, I believe it is.”

  “I . . . Thank you,” said Ben, a little stunned.

  “As you pointed out in examining my friend, Mr. Brodsky, we use the same signature block for all company documents. It would be easy—”

  “Excuse me, Mr. Kolesnikov,” Ben interrupted, trying to maintain control of the witness. “I haven’t asked you another question yet.”

  “I was finishing my answer to the last one.”

  “This is all going to come out on direct anyway,” Judge Harris interjected. “I see no reason why we shouldn’t hear it now. You may complete your answer, Mr. Kolesnikov.”

  “Thank you, Your Honor.” Dmitry’s English was flawless and had only a slight, urbane accent. “As I was saying, it would be easy for someone to cut the signature block off any of our documents, attach it to these fake minutes, and then make a photocopy to hide what has been done. In fact, that is what I believe has been done here. If you look at the area between the end of the text and the signatures, you will see a faint line. Your Honor, may I leave the witness box so I can be closer to counsel’s blowup of Exhibit One?”

  The judge nodded. “You realize that you’re still under oath.”

  “Of course. Thank you, Your Honor.” He stepped down from the box and walked over to the easel. “Here is where the real signatures end and the false minutes begin,” he continued, pointing to a faint, intermittent line that Ben had not noticed before. “So yes, I believe my signature on this document is genuine, but the document itself is not. Thank you for allowing me to complete my response to Mr. Corbin’s question.” He returned to the witness box.

  “Do you see this line here in the middle of the text?” asked Ben, pointing to the top portion of the blowup.

  “I do.”