by Rick Acker
Ben whistled. “That’s quite a list. I hadn’t thought of the tax-evasion angle, and I didn’t know about the drug dealing, but the rest of it is pretty much what I expected. It sounds like he’d need immunity from more people than just the feds. Are the state and the Norwegians part of the deal?”
“I can confirm that this is a multijurisdiction agreement.”
“And can you confirm that the ‘certain dealer’ you mentioned is named Cleverlad?”
Grunwald was silent for a moment. “Why do you ask?”
“Because there were some odd accounting entries about them in Bjornsen Pharmaceuticals’ books. I crossed Karl about them at the preliminary-injunction hearing.”
“I need to start monitoring your case more closely. I can’t answer your question, but I’d appreciate it if you didn’t tie the cooperation agreement too closely to Cleverlad.”
“I . . . Well, that may be hard. But I’ll do what I can. By the way, do you plan to tell Bert Siwell about our conversation tonight?”
“Not unless he asks,” Grunwald said drily. “He seems to like surprises.”
Ben laughed. “Yes, he does, though I’m not sure he’s as keen on getting them as he is on giving them.”
“I’ll call you first thing tomorrow morning to hammer out the wording of the stip,” Grunwald said.
“Sounds good. I’ll be in my office at eight and I’ll be heading to court at nine fifteen.” He clicked off his phone and gave Noelle his first unforced smile of the evening. Then he lifted his glass and said, “To Curt Grunwald!”
At ten fifteen in the morning, half an hour after the regular start time, the jurors filed into the jury box and sat down in their accustomed seats. Judge Reilly cleared his throat. “Good morning, ladies and gentlemen. I’m sorry that we kept you waiting today. This morning we have a little something to take care of before you hear from the next witness. Shortly before you came in, the lawyers informed me that they had reached an agreement on a statement that they thought should be read to you. I needed to talk to them about it for a few minutes to find out what they wanted read and why. I’ve decided that you should hear their agreed statement, which is technically called a stipulation.”
The judge picked up a sheet of paper and read, “Plaintiff and counter-defendant Bjornsen Pharmaceuticals, counter-defendant Karl Bjornsen, and defendant and counter-plaintiff Gunnar Bjornsen stipulate to the following fact: Law-enforcement authorities have concluded that Karl Bjornsen and Bjornsen Pharmaceuticals were not directly or indirectly responsible for the fire that occurred at Bjornsen Norge AS on July twenty-third of this year. They also were not responsible for the shooting of Noelle Corbin and Einar Haugeland that took place on that same day. You should disregard any evidence that may have implied the contrary.” The jurors looked surprised, and Ben saw several of them scribbling in their notebooks.
The judge put down the stipulation and turned to Ben. “All right. Mr. Corbin, are you ready to call your next witness?”
Ben stood. “Yes, Your Honor. We call Karl Bjornsen.”
The bailiff swore Karl in and he took the stand. As at the preliminary-injunction hearing, he was well dressed and exuded poise and confidence. “Good morning, Mr. Bjornsen,” began Ben. “You are the president and CEO of Bjornsen Pharmaceuticals, correct?”
“Yes. I’m also chairman of the board of directors.”
“Thank you. That was going to be my next question. You are the ultimate decision-maker at Bjornsen Pharmaceuticals, right?”
“I answer to our directors, and ultimately to our shareholders, but certainly that’s true on a day-to-day basis.”
“Would it be fair to say that no major decision is made at the company without your input?”
“That would depend on exactly what you’re calling a ‘major decision,’ but in principle that’s accurate.”
“Your Honor, could we have a sidebar conference?” asked Ben.
Judge Reilly looked surprised, but he motioned Ben and Siwell up to the bench on the side opposite the jury. He leaned over and whispered, “Okay, what is it?”
“I’m about to start on a line of questioning that Mr. Siwell may object to,” Ben replied, “so I thought I’d get an advance ruling rather than have my questions interrupted.”
“All right,” said the judge. “What do you want to ask about?”
“Mr. Bjornsen has an immunity deal with the feds and other authorities. I want to ask him about what crimes are covered by that immunity grant.”
“That is totally inappropriate!” exploded Siwell in a voice loud enough that several jurors reacted. “The whole purpose of the stipulation this morning was to prevent my client from having to talk about his cooperation with the US Attorney’s Office and other authorities.”
“I don’t plan to ask about his cooperation with the authorities,” countered Ben. “I plan to ask about their cooperation with him. In order to get him to cooperate, they had to agree to give him immunity for crimes unrelated to what happened in Norway, but directly related to this lawsuit. That’s a completely different subject and is not covered by our stipulation, Your Honor.”
“This is incredibly irresponsible of Mr. Corbin!” Siwell said through gritted teeth. “If the defendants in the government’s investigation found out about the terms of Mr. Bjornsen’s cooperation agreement, they could use that to undermine the government’s case at trial.”
Ben suppressed a smile. His gambit had clearly rattled opposing counsel, enough so that Siwell was now making a rare tactical blunder.
The judge stared at Siwell for several seconds, and then said, “Counsel, unless the law has changed drastically since my days as a prosecutor, the defendants will find out about any witness-cooperation agreements in any event. They have a constitutional right to know.” He brushed his fingers across his lips and continued, “Okay, here’s my ruling: any objection to Mr. Corbin’s proposed questioning based on the grounds described so far is overruled. Do you have any other objections you want to raise?”
“Not now,” said Siwell, “though I may when I hear the actual questions.”
“Fair enough,” said the judge. “Go ahead, Mr. Corbin.”
Ben returned to the podium. He now had the full attention of every juror, of course. Nothing arouses a jury’s curiosity like a sidebar conference. “Mr. Bjornsen, you have been cooperating with the government in its investigation of the shooting and fire in Norway, isn’t that correct?”
“Yes.”
“And in return for your cooperation, the government has given you and Bjornsen Pharmaceuticals immunity for certain crimes, correct?”
Karl blinked, and for just an instant he looked terrified. But he recovered almost immediately. “Not quite. Your question assumes that my company or I committed crimes. That isn’t the case, to the best of my knowledge.”
“Well, did you ask for the immunity grant, or was that something the government volunteered to give?”
“We asked for it.”
“In fact, you asked for it from several different governmental entities, didn’t you? You wanted immunity not just from the federal government, but from the Illinois and Norwegian governments too, right?”
“Yes.”
“And you had specific items you wanted immunity for, correct?”
Karl nodded. “That’s also true.”
Ben looked down at his notes from his conversation with Curt Grunwald. “And those items were ‘any crimes arising out of the sale of drugs to a certain dealer in illegal drugs, the failure to report income from those sales on your or Bjornsen Pharmaceuticals’ tax returns, embezzlement of the sale proceeds, and use of the sale proceeds for bribery.’ Is that true?”
“Essentially, yes.”
“And yet your testimony is that you did all of that despite the fact that neither you nor Bjornsen Pharmaceuticals committed any of those crimes?”
“Yes, because there could very well be evidence of those crimes, even if they had not been committed.�
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Ben paused for a moment, uncertain what to do next. On the one hand, he did not want to ask a ‘why’ question on cross-examination, particularly when he had no idea what the answer would be. On the other hand, he couldn’t leave a loose end that large hanging out there for Bert Siwell to start tugging on during his questioning. That could unravel all of Ben’s work. “Would you agree with me that evidence of a crime often means that the crime has in fact been committed?”
“Yes, unless there is reason to believe that the evidence was planted. I had reason to believe that evidence of the crimes you mentioned had been planted in my company.”
“But you couldn’t prove it, could you?”
“No. We could prove—”
“I didn’t ask whether there was something else you could prove,” said Ben. “You couldn’t prove that evidence had been planted at your company, correct?”
A flash of anger showed in Karl’s eyes, but he concealed it quickly and smiled. “Now that you mention it, we could prove that some evidence had been planted. The problem was that, after the fire at our Norwegian facility, we could not prove that other troubling documents had been planted. We strongly suspected it, but we couldn’t prove it. That’s why we needed immunity.”
Ben decided to play his last card. “Could you prove that documents had been planted in your own personal files?”
“Yes. In fact, you helped us do it. During an earlier hearing, you showed me two different financial statements for our Norwegian subsidiary, one that was marked ‘Internal Use Only’ and one that wasn’t. The numbers in the two statements did not match, which caused us to worry, of course.”
Karl spoke smoothly and energetically, warming to his story. “Just as we started to investigate the mystery financial statements, I began to receive blackmail threats claiming that the company and I were engaging in bribery, embezzlement, and so on.
“We put two and two together and started looking into our Norwegian operation. We discovered that a junior accountant there was working with an outsider on the extortion scheme. Among other things, she—the accountant—had for some time been sending fraudulent financial statements to my secretary, with notes saying ‘For Mr. Bjornsen’s files.’ The presence of those documents in my files would, of course, implicate me and make me easier to blackmail.”
“So you’re saying that these extortionists were actually sending you the documents they would later use to blackmail you,” remarked Ben. “Wouldn’t you agree that that was a high-risk—almost suicidal—gamble on their part?”
Karl shrugged and smiled. “Oh, I don’t know. It worked, until you discovered one of those documents and surprised me with it the last time I sat in this chair. To tell you the truth, if you send something to a senior executive and tell him it’s for his files, there’s not a very great risk that he’ll actually read it. If you send it to his secretary and tell her that it’s for his files, there’s virtually no risk at all.
“In retrospect, though, you’re right. As I believe you know, the individuals responsible are in custody now and are charged with extortion and other crimes. Unfortunately, I can’t go into detail because—as I believe you also know—this matter is the subject of an ongoing confidential law-enforcement investigation.”
Siwell stood up. “At this point, I’m going to object to any further questioning on these topics until Mr. Corbin has gotten approval from the US Attorney’s Office.”
The judge looked at Ben. “Mr. Corbin, do you . . . How much further questioning do you have along this line?”
Ben thought for a moment. Karl was proving to be a much more nimble witness than he had been at the preliminary-injunction hearing. He was lying, of course, but he was lying exceptionally well. Also, he was lying about a topic he knew better than Ben. Questioning him further was unlikely to be productive and could well prove dangerous. Maybe a talk with the USAO wasn’t such a bad idea. “Your Honor, I discussed these topics with the US Attorney’s Office last night, but I’m willing to suspend this line of questioning for today so that they can review a rough transcript of today’s proceedings and make a judgment regarding the propriety of my questions and Mr. Bjornsen’s answers.”
Ben dropped the highlighted transcript on his desk and rubbed his eyes. “Are you sure about that, Curt?” he said into the Bluetooth headset clipped to his right ear. “He said a lot of stuff that sounded an awful lot like lies to me.”
“He may be lying,” Grunwald replied, “but he hasn’t said anything that directly contradicts what’s in our file. We’ve always operated under the assumption that he was guilty of the crimes he got immunity for, but he’s been cagey about exactly what he admitted under oath or in writing.”
“I thought witnesses had to make full confessions in order to get immunity.”
“As a general rule, they do,” Grunwald agreed. “And Karl insists that he has made a full confession. I can’t give you the specifics, but he has always said, in effect, ‘I didn’t commit any of these crimes, but there may be documents showing that I did.’ I think he’s full of it, but most of the relevant evidence burned up. Besides, what he had to offer us made the deal worthwhile, even if he was lying. I know the whole corporate-fraud angle is central to your case, but it’s pretty secondary to ours.”
“Okay, thanks anyway.”
“Sorry I couldn’t be more help.”
Ben hung up the phone and walked down the hall to the conference room. Sergei was on his laptop, searching for useful information on the remaining witnesses listed by Bert Siwell on his witness disclosure. Noelle was at the table, sifting through stacks of financial documents produced by Bjornsen Pharmaceuticals, hoping to discover something that would disprove Karl’s lies. Eric was in a corner, lying in his combination car seat and carrier and making random baby noises.
“I just got off the phone with Curt Grunwald,” Ben announced from the doorway.
Noelle and Sergei looked up at him. “What did he have to say?” asked Noelle.
“That he doesn’t think Karl told the truth, but that he doesn’t see any provable lies in his testimony.”
“So he doesn’t plan to go after him for perjury?” asked Noelle.
Ben shook his head. “That was always a long shot. Curt probably plans to use Karl as a witness during any prosecutions that come out of this investigation he’s doing. It would be kind of awkward to do that if he was simultaneously prosecuting Karl for perjury. No, the most I was realistically hoping for was that he might give me some sort of hint if he saw something in the transcript that he knew was a lie.”
Noelle raised her eyebrows. “Oh, I hadn’t really thought about it from his perspective before. I guess he wouldn’t want to destroy Karl’s credibility, would he? I’m surprised you thought he would help you at all.”
Ben shrugged. “Curt’s a straight shooter and doesn’t like it when people lie under oath. I also don’t think he likes Bert and Karl much now that he’s figured out they were using him to set an ambush for us. So I had hoped he might tell me if he knew Karl was lying, or at least react in a way that would make it pretty clear. But no such luck. How’s your document hunt going?”
“Not so well. I’ve found a couple more examples of double sets of financials—one set listing the Cleverlad account and marked ‘Kun Internt Bruk,” and another set that doesn’t have the marking or the account. But I haven’t found anything that’s inconsistent with Karl’s new story. I even found a couple of notes from Bjornsen Norge saying ‘Financial documents for Mr. Bjornsen’s files’ and things like that.”
Ben’s forehead wrinkled and he was silent for a moment. “Let me throw you a curveball. If all the documents we have are consistent with Karl’s story, is it possible he’s telling the truth?”
Noelle shook her head, and Sergei said, “Are you serious?”
“I am,” said Ben. “I was so convinced that Karl was behind the fire and shooting that I didn’t see any of the signs that the law-enforcement agencies thought he was
n’t guilty—the lack of security; the lack of information from Kripos, the FBI, and DOJ; the fact that Karl wasn’t under arrest. I missed it all because it didn’t fit my view of what happened. I should have seen Bert Siwell’s trap a mile away, but I didn’t. I don’t want that to happen again. So let’s at least think about the possibility that we may be wrong about this too.”
Noelle shook her head again. “I think you’re right to be careful, honey, but that’s just not possible.”
“Why not?” asked Ben.
“Because the documents Henrik and I saw looked and felt genuine. They weren’t all in one place in the files; they didn’t all look like they had ink from the same pen; they didn’t all have the same handwriting. I’ve been involved in audits where there were forged documents, and it was pretty easy to tell. These didn’t look forged.”
“Do you think Noelle should testify?” asked Sergei. “She’s on our list.”
“I’m sure she’d be great on direct,” said Ben, “but the cross is pretty obvious. Imagine I’m Bert Siwell up there at the podium, wearing my sucking-up-to-the-jury smile. Ms. Corbin, is it possible for criminals to file forged documents in more than one location?”
“It is.”
“Is it also possible for them to use more than one color of ink?”
“Yes.”
“And is it possible for them to use more than one handwriting, particularly if there are two or more of them?”
“Yes.”
“And in fact, wouldn’t you expect reasonably intelligent criminals to take all of those steps if they could, particularly if one of them was a trained accountant?”
“I guess so.”
