“I can’t say I’m sorry to hear that,” Jenkins said.
Federov laughed. “No. I did not think you would be. I never had the chance to congratulate you on your escape. You are a formidable foe, one I think I might like to know under other circumstances. Maybe someday I will come to United States and we will have a toast.”
Jenkins gave Sloane a puzzled look. “Did you call just to congratulate me, Viktor?”
“No. I did not. I called to tell you that in Russia the government is direct. In your country, not so much. I would let bygones be bygones, but what I think does not matter. There are those in your country who do not want to see you go to trial. It would be . . . embarrassment to them. I thought you should know.”
“Are you referring to Carl Emerson?” Jenkins said.
“Me, I am not referring to anyone. To do so would not be so good for my health.”
“Why are you telling me this, Viktor?”
Federov sighed. “I say again, we are not so different, Mr. Jenkins. We work for bureaucracies that do not always appreciate what we do, but that are swift to punish us when we fail.”
Jenkins gave that comment a moment of thought. Then he said, “Thanks for the heads-up.”
“Is no problem.”
“What will you do?” Jenkins asked.
“Me? My brother runs a concrete business and does much work for the government. I will make more money working for him, though not nearly as much as others have made at our expense, Mr. Jenkins.”
Jenkins again looked to Sloane. He interpreted the comment to confirm what he had suspected, that someone, possibly Carl Emerson, had made millions of dollars. “I understand.”
“Then it is good that I called. Until we meet again, Mr. Jenkins. Za zdaróvye! ”
Federov disconnected the call. Jake pressed a button on his phone. He had recorded the conversation. “I have it,” Jake said. “We can take this to Harden and play it for him.”
Sloane shook his head. “It would never come into evidence. You taped it without Federov’s knowledge, and the government will argue they had no ability to cross-examine Federov on what he said.”
“That’s not the biggest problem,” Jenkins said. “It also confirms my relationship with a Russian FSB agent, and it makes us sound like we’re friends. The government could spin it and use it to convict me.”
No one spoke for a moment. Then Jake said, “Do you think he was trying to set you up somehow?”
“No,” Jenkins said. “He has no stake in this game anymore. I think his warning was from one agent to another. I think he also wanted me to know that someone made millions of dollars at both our expense. He’s pissed. It’s why he called. He wants me to win.”
“Why? What’s in it for him?” Jake asked.
Jenkins smiled, thinking of Federov, and of the respect he had developed for the man’s counterespionage skills. It appeared Federov had developed a similar respect for Jenkins.
“Absolutely nothing,” Jenkins said, “which is why I believe him. He and I are the same in one respect—his government screwed him and mine is trying to screw me. This is his way of helping.”
“But if you believe there are people who could try to kill you, why are you so calm?” Jake said.
“Because no contract killer will honor that contract, if one exists. It’s a small fraternity, and I’m sure they sense what has happened. They’ll want to find out the result. Because they know that if this can happen to me, it can happen to them.”
The appeal resulted in a four-month delay of the trial. Jenkins spent that time with Alex and the kids. School was out for the summer, which caused CJ to scale back his request to go back to his school. Alex was working part-time at a supermarket. Jenkins, however, was unemployable because of the publicity surrounding his arrest and the pre-trial activities. He was dipping into what retirement they had to make ends meet. Sloane would not take any money, either for rent or for food. “What good is my money if I can’t use it to take care of my family?” he’d said one night.
Midweek on a warm July afternoon, Sloane called Jenkins to tell him that three Ninth Circuit judges had unanimously agreed with Judge Harden’s decision and rejected the government’s appeal to classify the documents under CIPA. Jenkins hung up the phone and let out a contented yell. He was more confident than ever the government would either let the case go or offer another plea agreement, one that did not require Jenkins to plead insanity.
Jenkins’s euphoria, however, was short-lived. Sloane called back at the end of the day to tell him the government had again appealed, this time seeking an expedited decision from the full panel of twelve Ninth Circuit judges. Sloane explained that it was highly unlikely the full panel would overturn a unanimous decision of three of their colleagues, but when it came to the power of the CIA and the FBI, Jenkins was not so naïve.
On the eve of the new trial date, the Ninth Circuit ruled seven to five to reverse Judge Harden’s decision, as well as the affirmation by the three-judge panel. All of the LSR&C documents Jake had gathered were deemed classified under CIPA, and therefore inadmissible. Sloane tried to console Jenkins by pointing out that Judge Harden, at least, knew the contents of those documents.
The jury, however, would not.
Not surprisingly, the government did not offer another plea deal.
That evening Jenkins walked down to the water’s edge. He now knew that those in power would never let the truth come out, never allow him to have a fair chance, never allow him to be free. He stared across Puget Sound. The sun had started its descent, coloring the sky in ominous hues of red and orange, and it reminded him of the sky over Moscow on his first trip to Russia.
He faced three life sentences, and he could offer virtually nothing to substantiate his defense.
Late in the evening before the start of trial, Jenkins sat on Sloane’s covered porch listening to the waves from a passing cargo ship pound the shore, like bursts of thunder. He understood now why the government had never lost an espionage case. It was like playing blackjack in Las Vegas. The odds of winning were not favorable, especially when the house controlled the cards.
Sloane stepped onto the porch, letting the screen door slap shut behind him. He carried two bottles of beer and handed one to Jenkins. They sat in rocking chairs, looking out at Puget Sound’s darkened waters. Jenkins knew Sloane had bought the two chairs before Tina’s death, and that he had anticipated sitting on this porch with her, admiring this view, well into his old age. How quickly and dramatically life can change.
Jenkins sipped his beer. “You get everything done?”
Sloane had spent all day in court, arguing pre-trial motions. If Judge Harden was pissed off at the government for lying about the LSR&C documents, or for being reversed by the court of appeals, he didn’t show it. He’d been efficient and professional. The defense won and lost the pre-trial motions pretty much as Sloane had predicted.
“Did the government produce Emerson’s last-known address?” Jenkins asked.
“Nope,” Sloane said. “And I’m not holding my breath they will. If they do, they’ll likely produce an address to a PO box in some town in the middle of nowhere. And if he’s out of state, he won’t come willingly, and I doubt we could get an order to force him. If we could even find him.”
Jenkins considered that for a moment. Then he said, “Might be for the best, especially if he knows you now have no documents to impeach him. We have to assume he won’t have anything positive to say about me, and if he’s the leak, or a mole, he’s had plenty of time to cover his tracks. Emerson has always been smart. He’s played this game for forty years. He could burn me if we put him on the stand.”
Sloane sipped his beer, then said, “I want it on the record that we tried to get him, and we asked the government to provide his address. It could be grounds for an appeal.”
Jenkins knew an appeal would only be necessary if he lost. “Did they produce a witness list?”
Sloane smirked. “
Not a minute before five this afternoon. Twenty-seven names, and no information what any of the twenty-seven will say.”
Flying blind, Jenkins thought, not for the first time. The runners of Jenkins’s chair caused the planks of the old porch to creak and moan. It sounded like the sound of a man hung from the gallows in an old Western, his body twisting in a breeze.
“I won’t ask you to look after Alex and my kids,” he said, keeping his view on the darkened landscape. “Just to be there for them, if they need help.”
“I’ll take care of them as if they were my own,” Sloane said. “You know that. But we’re not giving up just yet.”
“I’ll never give up, David, but some things are not in our control.”
Inside the house, Lizzie cried. Jenkins looked at his watch. “She’s nothing if not punctual.” He handed Sloane his beer. “I told Alex I’d feed her so she could get some rest. Didn’t figure I’d sleep much anyway, and I’m not sure how many more of these opportunities I’ll have to hold her.”
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The following morning, the government brought a motion asking Judge Harden to recuse himself because he had been made privy to the documents protected by CIPA. Harden rejected the motion, asserting that the documents would not prejudice his handling of the trial.
Sloane told Jenkins the motion was a good move, that he suspected the government filed it intending the motion to hang over Harden’s head to ensure his rulings followed the law.
After Harden denied the motion, the selection of jurors was as efficient as the pre-trial motions. In federal court, the judge asked most of the questions of prospective jurors. Sloane and the government were each limited to three questions. Sloane told Jenkins that most jurors entered a courtroom assuming that if a case had made it to trial, the allegations were likely true. Therefore, his first question had to cause jurors to rethink, or at least reconsider, their preconceived opinions about Charles Jenkins, the spy.
At the lectern, Sloane said, “By a show of hands, how many of you believe the United States has in its employ spies who work behind the scenes and in the shadows to protect our country’s national interests and national security?”
In an era of daily terrorist threats, almost everyone on the panel raised his or her hand. Jenkins noted on a legal pad those who did not. “And how many of you believe, by a show of hands, that in order to protect our country’s national interests, the government doesn’t always provide the public with information about where their spies are working and what they are doing?”
Again, nearly every prospective juror raised his or her hand.
“How many of you would agree that sometimes the government makes mistakes?”
This time everyone in the jury pool raised a hand. Sloane sat, and Jenkins felt that the tide had, at least, turned slightly before the government had the chance to brand him a traitor.
Velasquez did just that.
“How many of you, by a show of hands,” she said, “believe that persons who sell classified information to a foreign government should be punished?”
The show of hands was unanimous. Velasquez’s two follow-up questions were equally stinging and equally persuasive.
In the end, Sloane utilized eighteen of his twenty preemptory challenges to dismiss certain jurors. Velasquez used seventeen. Just two hours after starting the voir dire process, they had a jury of nine women and three men. Most were well educated and held positions of responsibility. Sloane told Jenkins he was pleased with the group.
Harden wasted no time moving the case forward. “Is the government prepared to give its opening statement?”
It wasn’t a question. Velasquez slid back her chair and stood. If she wasn’t prepared, she didn’t show it. Confident and poised in a navy-blue, single-breasted jacket and skirt, she placed a laptop on the lectern but abandoned it to face the jury.
Emphasizing the theme that she had first raised in voir dire, Velasquez said, “The Justice Department doesn’t move forward on a case of this nature unless there is full consultation and evidence to support it.”
Jenkins saw Sloane move as if to stand, but he remained seated. The statement was argumentative, but he deduced from the jurors’ expressions that they didn’t believe it, at least not all of them.
“During the course of this trial you will hear evidence that the defendant, Charles Jenkins, was facing both personal and professional setbacks. His security company, CJ Security, was teetering on the edge of bankruptcy, and so was he. Mr. Jenkins’s company was in debt to its security contractors and to various vendors. He was also on the verge of personal financial collapse. He had used his family farm on Camano Island as collateral for business loans to get his company off the ground. In simple terms, he needed money or he’d lose his home.”
Velasquez took small paces to her left and told the jury of Alex’s complicated pregnancy and her preeclampsia. She paced to her right. “So, what could Mr. Jenkins do? How could he save his family?” Velasquez paused as if expecting a juror to answer. “He could rely on a skill he’d once possessed, against a foe he had once combatted, a foe he knew would be very anxious to receive the type of unique information Mr. Jenkins could deliver. You see, Mr. Jenkins was once a spy for the Central Intelligence Agency. In the late 1970s, he worked out of the CIA’s Mexico City field office for a man named Carl Emerson. Mr. Jenkins ran operations against the Soviet Union and its KGB officers stationed in Mexico City. Mr. Jenkins therefore had access to confidential information on American agents working in Russia, and on double agents—Russians spying for America.”
Velasquez discussed Jenkins’s abrupt departure from the CIA and his admitted dissatisfaction with the agency. She then turned toward Jenkins and raised a finger. “And so, facing both a personal and a professional catastrophe, what did Mr. Jenkins do? He had a perfect cover to travel to Russia. LSR&C had opened an office in Moscow and it was CJ Security’s job to provide security to the workers and investors there.”
Velasquez went through the trips Jenkins had made to Moscow, the information he had allegedly disclosed, and how that information had first originated in Mexico City. “Those two agents who Mr. Jenkins disclosed to the FSB,” she said, “paid for Mr. Jenkins’s betrayal with their lives.”
Jenkins could feel the eyes of the jurors boring into him and fought not to react.
Velasquez explained how, upon Jenkins’s first return from Moscow, his company received a $50,000 wire transfer from somewhere in Switzerland. “It was a straight trade—money for information. He was debt ridden and he was desperate.”
Fluctuating between being outraged and being pragmatic, Velasquez explained to the jurors Jenkins’s mysterious return to the United States after a second trip to Russia, seemingly without the use of his passport. She told them about his interactions with FBI agent Chris Daugherty, insinuating the meetings had been motivated by a fear of being caught. Then she said, “And he made up a story.”
Velasquez explained what she called “Mr. Jenkins’s fantasy.” Then she asked, “Would this great nation—the United States of America—leave one of its own agents out in the cold if he were truly in the service of his country?”
She scowled. “Ask yourself, where is the evidence, any evidence, to support his story? Ask yourself, is it likely that during his personal and professional hardship a CIA agent would materialize on his farm carrying a pot of gold? That’s the sort of story one reads in poorly written mysteries, what any discerning reader would laugh at and toss aside as pure, unadulterated fantasy.”
After just twenty minutes, Velasquez had left a strong impression on the jury. As she turned for the government’s table, the only sound in the room was the rocking of jurors’ chairs as they swiveled toward the defense table.
Sloane was already walking to the lectern when Harden said, “Mr. Sloane, do you wish to give an opening statement at this time or defer?”
“The defense very much wishes to be heard,” he said.
Sloane had explaine
d to Jenkins that he had about thirty words, maximum, to change the impression Velasquez would create before the jurors tuned him out, and that he had to involve the jurors in Jenkins’s case.
He didn’t even bother to greet the jurors. Instead, he pointed his finger at Jenkins. “Is this man a spy?” He looked each juror in the eyes. Then he said, “You bet he is. He’s a spy for the United States of America. He was a spy in the 1970s, and he was reactivated November 2017. Is it coincidence, as the government contends, that we are here? Absolutely not. We are here because Mr. Jenkins is the victim of a rogue CIA agent who was bilking an investment firm.”
Sloane paced as he spoke. He told the jurors what Velasquez had not, that Carl Emerson had worked as Richard Peterson for TBT Investments, a subsidiary of LSR&C, which served as a CIA front for agents all over the country. It was a risk. Opening statements were not facts. Facts came in through evidence. Without the documents to support the opening statement, it could be a risk that would backfire, but it was a risk he and Jenkins agreed they had to take.
“Was it coincidence that Mr. Jenkins’s company was going bankrupt? Of course not. Mr. Jenkins couldn’t pay CJ Security’s bills because LSR&C had stopped paying CJ Security. Was it coincidence that Carl Emerson showed up on Charles Jenkins’s farm at this critical financial moment? Of course not. Carl Emerson showed up at this critical moment because Carl Emerson had been Mr. Jenkins’s superior officer in the CIA, knew why Mr. Jenkins had quit, and knew he would not agree to be reactivated unless something mandated it—something catastrophic, as counsel said—something like his business going bankrupt and his family losing their home.”
Sloane paused to let his outrage and the significant amount of information sink in. Did he care whether each juror absorbed each nuance? Not at this moment—especially if he couldn’t get in information to support it. What he wanted to convey was the government’s disloyalty and dirty dealing. Things, he hoped, each juror could understand.
The Eighth Sister Page 32
