by David Ellis
“Cimino’s no idiot,” said Tucker. “You guys at the PCB—you can’t even call him on the phone. Or email or fax or text him. Everything’s in person. Right?”
I nodded. Cimino was avoiding all the ways that the feds like to catch people these days. The wire-fraud statute—committing any kind of fraud by way of telephone or electronic communication—was their bread-and-butter nowadays. It was how the feds were able to grab any number of state crimes or other wrongdoing and get federal jurisdiction.
“Christ, he’s not even a state employee.” Tucker shook his head. “He does everything out of a private office. A guy who’s not even on the state payroll is directing traffic.”
“Then what’s his angle here?” I asked. “He must be getting a cut somehow.”
“Oh, yeah.” Tucker nodded. In one fell swoop, he scooped tobacco out of the tin in his pocket and deposited it inside his cheek. It seemed to cheer him up. “He has all kinds of companies set up for consulting, things like that. Some company gets a big fat contract from the state, you can bet that company will suddenly hire one of Cimino’s companies for some bogus consulting work. It adds up quick. He could make over a million a year this way.”
“Let me guess,” I said. “On paper, all of those side contracts with Cimino’s companies are legit. Actual work is performed. Grossly overpaid work, but work nonetheless.”
I could see from their expressions that I’d hit the nail on the head. That would be the smart way to play it. If Cimino were shaking down contract bidders to shoot some consulting work his way, he’d make sure that the contracts held up to superficial scrutiny—that he provided at least some minimal consulting work, albeit for an exorbitant fee.
“Look, we think Cimino is all over the place in the Snow administration,” Tucker said. “We think he has a say in almost every significant decision they make. But it’s hard to prove.”
That explained why they needed me. The tapes they played for me were probably enough to warrant an indictment against Cimino. But they wanted to play the string out. They were expecting, hoping that they could put a lot more on Cimino. And they were betting that I could deliver it.
“He sees you as a potential asset,” Tucker told me. “You’re not just the everyday lawyer they get. You have a lot more experience. You come from a major law firm. And most of all, you got Hector out of a huge jam. You navigated Almundo through the very same kind of stuff these guys are doing, and Hector never spent a day in prison. You’re valuable.”
Tucker only seemed to realize after the fact that Hector’s prosecutor was sitting in the room while he glorified Hector’s acquittal. I like the impolitic, bull-in-a-china-shop types myself. Tucker might not be so bad to work with.
“You heard Greg Connolly on the tape,” Moody added. “He said you could be ‘useful.’ These guys like to keep their circle small and tight, but you could penetrate it, Kolarich. We’re counting on your well-earned reputation as a bullshit artist.”
I didn’t get the sense that Moody meant it as a compliment. But that didn’t make him wrong. If there is one thing I learned when Talia died, it’s that I am my father’s son—I can become another person altogether. I can pretend. I can smile at you and keep my hand steady while I am doing somersaults internally.
I was, in many ways, the perfect person for this job.
And then, over the space of a handful of days, it all came together. Chris Moody and I met with the state supreme court’s Division of Attorney Discipline—DAD—to get their blessing for my undercover role as a corrupt lawyer, a necessary protection given that I was going to be breaking laws right and left and didn’t want to lose my law license for doing so. For Moody’s part, he didn’t want my cross-examination at trial to begin with an assault on my professional ethics. And even more fundamentally, Moody needed to be sure that my testimony would be admissible. The first thing any defense attorney would do is try to exclude every recording made by me as a flagrant breach of the attorney-client privilege. We wanted to be sure that my role was clearly defined, limited as much as possible to committing fraudulent acts with Charlie Cimino, Greg Connolly, etc.—which would allow us to invoke the crime-fraud exception to the attorney-client privilege.
“Well, Kolarich, I guess you’re out of excuses,” said Moody, his way of telling me the supreme court had signed off on my undercover role.
And he was right. The federal government and I had agreed that I’d cooperate with them without an immunity deal, and the state supreme court had given the green light. The idea hit me as if it were a fresh notion, despite having dominated my thoughts for the last four days: I was actually going to do this. I was going to be a snitch for the federal government.
31
THE NEXT MORNING, I MET SPECIAL AGENT LEE Tucker in an “employees only” lounge at a hotel that was midway between my office and Charlie Cimino’s. Tucker was dressed pretty much the same as I’d last seen him, a white button-down under a blue sport coat and blue jeans. I’d told him I typically wore a suit when I went to work, and he said that would work fine, so that’s what I was wearing.
Tucker looked at his watch. “You’re late,” he said. “It’s almost eight-thirty. Okay.” He sized me up. “How you doing?”
How was I doing? I was about to wear a wire for the federal government. These guys were sinking their hooks in me and threatening me and my best friend if I didn’t play ball. Whether his question was small talk or sincere, it deserved a sincere response.
“Fuck you,” I said.
He looked at me for a moment. He was appraising me, the entire situation. What kind of a witness would I be? I didn’t doubt my importance to the operation. A lawyer could take them places they couldn’t otherwise infiltrate. He had two choices: Come on strong, with continued threats, or go easy. I figured he’d choose the latter.
Tucker opened his palm and showed me the recording device, which looked like one of those pagers people used to wear, before everyone had cell phones, only it was even thinner; it was about the size of three AA batteries strapped together with black tape. “This is an F-Bird,” he said. “Put it inside your suit pocket.”
It was even lighter than the weight of three batteries. I dropped it inside my suit pocket and didn’t even know it was there.
“This is audio only?” I asked.
He nodded. “A simple recording device. No eyes. No transmission signal.”
I didn’t know what that meant.
“I won’t be listening in, real time,” he explained. “It’s not transmitting any signal to me. I won’t know what’s said until you bring it back when you’re done.”
“And then you’ll grade my performance.”
“Don’t think of it as a performance, Jason. Just be yourself. Act like the recorder isn’t even there.”
I shot him a look.
“I’m serious. If you think about it, it’ll make you edgy. Just relax. Don’t force the conversation. Let him come to you. It might take a long time, Jason. That’s okay.”
“How do I turn it on?”
“You don’t.”
“How do I turn it off?”
“You don’t. We do those things. We start letting CI’s turn those things on and off—”
“Right.” The government couldn’t trust the cooperator to turn the recorder on and off; it would lead to claims of selective editing by defense lawyers at trial: You turned it off when my client said something that exonerated him; you turned it on, out of context, to capture something damning. It made sense. Better to have the thing running all the time.
Tucker looked at his watch again. “Now you better get going. And next time we’re supposed to meet at eight, make it eight you show up.”
Tucker was worried about my showing up late to the meeting with Cimino, but that was already my intention. I’d been late every time I’d visited him, and I didn’t want to stray from character.
I arrived at his posh offices at a quarter past nine. One of the supermodel receptionist
s made me wait a good twenty minutes before she showed me back. As I followed behind her, I thought that Tucker should regret not wiring me for video.
Cimino, as always, was pacing in his airplane hangar of an office and talking on the phone. He pointed to a chair when I walked in, and I planted myself. The tiny recorder felt like a hundred pounds in my jacket pocket. I felt like a siren was going off. Every word that he and I were about to say would become part of a record. It was like having your mother in the room with you.
“When I say I’m tired of excuses, do you think I’m speaking another fucking language?” he said, as always abusing whoever was on the other end of the call. “What’s this thing you have with tardiness? I say eight-thirty, you be here at eight-thirty.”
It took me a minute to realize that he had segued from rebuking some poor building contractor to scolding me. He snapped his fingers at me. “Hey, am I talking to you?”
“Are you?”
“Yeah, I’m—okay, listen, Arthur. Are you listening? No ... more . . . excuses. Get it done by the end of the week or I find someone else.” He tore off his earpiece and sat down behind his desk. “And you,” he said. “You’re very aggravating, kid, you know that? People say you’re fucking smart, but you can’t tell time so good, can you?”
I had a few responses in mind, but none of them seemed appropriate.
“And I tell you to do something, you fucking do it. Are you working for me or are you working for me?”
He was referring, I thought, to my refusal to write that memo disqualifying the two bidders on the prison contract, but he hadn’t said so explicitly. I was hoping he’d elaborate. I’d love to have Charlie Cimino admit, on tape, that he’d had someone doctor the memo I had written.
I handed him the document I’d worked on yesterday at the state office. It was a memo on the prison contract with the conclusion Cimino wanted, but written by me.
He looked at it for two seconds. “What’s this?” he asked.
“That,” I said, “is a memorandum I wrote yesterday, detailing why the two bidders who beat out Higgins Sanitation for the prison contract were not ‘responsible’ bidders, and therefore Higgins should get the contract.”
“We already have one—”
“Yeah, you already had one, whoever wrote it. Who did write it, by the way?”
Cimino just stared at me, looking annoyed. Strike two for me. He wasn’t going to help me out. Listening to this tape later, Tucker and Chris Moody would probably have a nice chuckle as I flailed away.
“Well, whoever did it—it was crap,” I said. “It wasn’t convincing. You want to disqualify the bidders, that is how you do it. That’s the memo you want.”
He stared a hole through me for a while. I admit it occurred to me, a flash of panic—he knows—but there was nothing I could do but sit still, and eventually his eyes moved down to the document. He read it over, skipping to the good part. “Okay. Yeah. Yeah, this is better.” He looked up at me. “This looks better.”
“Jack Hauser came by the other day,” I said. “I signed him up on a lawsuit with the city.”
He looked at me, his eyes narrowing. “Yeah?”
“I think maybe you and I have had a communication breakdown,” I said.
We were dancing around it. I couldn’t imagine another way to do it. I couldn’t rush in here and be direct. I had to let him know that we were on the same page without saying so explicitly. And he needed to see that there was a reason for my sudden change of heart, a reason why my stubborn refusal to do what he wanted was suddenly replaced with eager compliance. That reason was his referral of Hauser Construction to my law office. A guy like Cimino, I figured, would willingly believe that I’d want in, that I’d do what he asked, if there were sweeteners involved. It’s how he operated, so it was psychologically soothing for him to believe it motivated others, too. He’d sent me that legal business to get me on board, and I was telling him that it had worked.
“Yeah?” he said. He was being noncommittal, which was smart of him.
I pointed to the document. “There are a couple of companies there that might not be so happy, losing out on that prison contract. They might sue. They might make a lot of noise. They might talk to other people. Reporters. Politicians. Maybe—shit, maybe law enforcement. People will want to know, what’s the reason?”
He was stoic, listening to me. “You telling me something I don’t know?”
“No, I think you know. But that other memo—the one bearing my name, that I didn’t write—that memo’s garbage. It wouldn’t hold up. Look,” I said, leaning forward, “if an action of the PCB comes under scrutiny of any kind, you need to be able to say you relied on advice of counsel. But the advice of counsel has to be somewhat convincing, Charlie. That other memo—it wasn’t persuasive. I think this one I prepared, on the other hand, is.”
He looked back down at the memo, but he wasn’t reading it. He was thinking.
“You need an advocate,” I said. “Someone who argues for a living. Someone who can take facts that smell like shit and convince everyone they’re perfume. Or at least, someone who can muddy up the water enough to make our position plausible.”
He made a thoughtful noise. “And I suppose that’s you?”
“Ask Hector Almundo if that’s me.”
Judging from the taped conversations the feds had played for me, these guys already seemed to have a favorable opinion of my skills. It was probably why I had lasted this long on the job, despite my stubbornness—Hector, and what I had done for him.
“Or not,” I said. “I don’t care. But I’m not a transactional lawyer, Charlie. You want someone who will read a thirty-page document and robotically apply the law—honestly, you don’t want me. I’m not interested. But the good stuff—where you need someone to make an argument, a convincing one—I’m your man.”
He slowly nodded his head.
“And I still have a full-service law firm,” I said. “Open for business, if the occasional customer wants to drop by. I’m always grateful for new clients.”
His expression seemed to soften. This, I thought, was making sense to him. I was presenting the world in exactly the way he, himself, viewed it. And I was being as tactful as I could. I wasn’t using words like “fraud” and “collusion.” But I was telling him, in so many words, that I now understood the rules, and I liked the game.
Cimino reached into a candy dish on his desk and threw a couple of jelly beans into his mouth. He cupped a few more, like he was guessing their weight, and considered me. “What was it with Hector?” he asked. “How’d you pull that off?”
“Plausible deniability,” I said, without hesitation. “But with Hector, it was tougher, because the feds had him on tape. We had to work after-the-fact. We had to dissect every sentence uttered by him and by Espinoza and show that Hector didn’t take Espinoza seriously. The jury thought it was plausible.”
He kept nodding his head. I thought it was nervous energy more than agreement.
“Now, hypothetically, if I have the luxury of counseling a client beforehand, not after the other shoe has dropped,” I said, “it’s easier. I make a convincing case for a particular position, and all the client has to do is say, ‘Okay, I accept your advice.’ The client can always utter the three magical words—‘advice of counsel’—and me, I can just say that I stand by my legal reasoning. That’s the great thing about the law, right? There’s no concrete answer. It’s all about opinions.”
“It’s all bullshit, if you ask me.”
I didn’t respond to that. I wasn’t going to convince Charlie Cimino that he should respect the legal profession, much less the law itself.
“Okay. Well.” I got out of my chair. “If this is the last time we talk, then—that Hauser Construction case? Thank you. I hadn’t expected that. I think I understand the world a little better now. If you want me for the—for the more complicated issues, let’s say, I’ll be around.”
Cimino was still playing with the j
elly beans in his hand when I showed myself out. I got into the elevator and waited for the doors to close. Then I let out a long exhale, what felt like twenty minutes’ worth of breath.
32
I STOPPED AT A COFFEE SHOP A FEW BLOCKS FROM MY office. I ordered a large coffee, black, and left the small recording device—the F-Bird—on a paper napkin as I paid the guy. The next guy in line, Lee Tucker, snatched up the recording device as I walked away. I felt instant relief when that thing was out of my possession.
I went back to my office and collapsed in my chair, feeling utterly exhausted from the affair. I’d never done anything like this before, and I underestimated how draining it would be to perform on camera, so to speak. The conversation with Cimino was no more than twenty minutes, but I felt like I’d lost five pounds in the process.
Late in the afternoon, Shauna walked into my office and dropped down on the couch in the corner. We actually had pretty spacious offices, and my brother had given me the couch, which I thought added something to the space, though I wasn’t sure what. Early-nineties-college-slacker, maybe.
“I have a date,” she said. “A guy named Roger. Opposing counsel on a breach-of-contract thing. We settled it last week. Now he wants to take me to dinner.”
I felt something swim around inside me. I wasn’t sure what it was, but it seemed like I wasn’t happy to hear this news.
“Coolio,” I said, like an absolute moron. Coolio? I’d never said that word in my life.
“You think I should go?”
I busied myself with some papers and made a face. “Sure, if you want to.”
I avoided her eye contact and felt a bit of tension form between us. Then I was saved by the bell—by the phone, actually. Marie, our assistant, on the intercom.
“David Hamlin for you?”
“Put him through.”
“Who’s David Hamlin?” Shauna asked.
“David Hamlin” was Lee Tucker.
