“Your Honor,” Velasquez started.
Harden cut her off. “Do not, Ms. Velasquez, give me the same song and dance about the government having no authority over Mr. Emerson. I’m willing to accept that the envelope that appeared under Mr. Sloane’s office door did so by magic, as opposed to the other possibilities, such as the government deliberately misleading this court from the outset, but my suspension of disbelief will only go so far. Have Mr. Emerson here tomorrow morning, or I will hold the government in contempt.”
“I’m not sure he did us any favors,” Jenkins said to Sloane as they walked from the courtroom. “Emerson could admit he was working for the CIA, even go so far as to say that LSR&C was set up to provide funds to operatives and operations, but deny that he met with me, which will bolster the government’s argument that my defense is nothing more than a convenient excuse I fabricated, after Mitchell Goldstone and LSR&C were indicted, to keep my ass out of jail.”
“If Emerson is going to be here, the jury is going to expect me to put him on,” Sloane said. “My thought is we keep his testimony short, establish that he worked for TBT Investments, and that he came to Seattle at roughly the same time you claim to have met with him. If he lies, I can argue to the judge that I should be able to use the documents to impeach him, that he can clear the courtroom of all but the jurors, but I’m not sure he’ll allow it.”
They worked late into the night, until everyone started to fade. Jenkins followed Sloane into his office to wait while Sloane checked his e-mail.
Sloane did so and groaned. Then he swore under his breath and said, “Maybe we won’t have to worry about questioning Emerson after all.”
66
The following morning, Judge Harden’s clerk entered the courtroom and advised that Harden wished to see counsel in his chambers. Sloane looked to Jenkins and nodded. Both knew the reason.
Jenkins and Sloane followed Velasquez and the other government attorneys down a narrow hall to the judge’s chamber. The court reporter was tucked into a corner of the room with her machine. Judge Harden stood behind his desk. His judicial robe hung from his coatrack, along with his suit jacket. At the side of his desk he’d placed the four boxes containing the LSR&C documents.
Harden held a document, reading as the attorneys entered. He brought the proceeding to order, asked counsel to state their presence in his chambers for the court reporter, then said, “Mr. Sloane, I assume you have not seen Judge Pence’s order, which I received early this morning?”
Pence was the Ninth Circuit Court judge who had written the order reversing Harden’s decision to allow the use of the LSR&C documents. Sloane had not seen an order, though he had read the government’s interlocutory appeal to keep Sloane from calling Carl Emerson.
“I saw the appeal. I have not seen the judge’s order.”
Harden handed Sloane the order across his desk. “Judge Pence apparently works late nights.” He looked to Velasquez when he said this, but she remained stone-faced and impassive. “In any event, Judge Pence’s order prevents the defense from asking questions of Mr. Emerson that pertain to subjects covered in the documents the Ninth Circuit has already held to be classified under CIPA. He also has issued a number of other restrictions with respect to questions the defense may ask of Mr. Emerson. I don’t expect you to make a decision at this time regarding what you intend to do, whether you still intend to call Mr. Emerson. But if you do, these restrictions would apply.”
Sloane and Jenkins quickly flipped through the two-page order, reading the restrictions. They would prevent Sloane from asking Emerson much of anything. Emerson would have a green light to lie, knowing Sloane could not impeach him. On the other hand, if Emerson was present in court and the defense did not call him, the jurors would wonder why not. It could be fatal to Jenkins’s defense.
“We will let you know, Judge,” Sloane said in as confident a voice as he could muster.
Velasquez, now imbued with confidence bordering on arrogance, said, “The government requests a decision now. We need to let Mr. Emerson know whether he is free to go, so as not to inconvenience him, or we need to prepare him for questioning.”
Harden rubbed his chin as if he’d just taken a right cross and the impact had surprised him. “Counsel,” he said to Velasquez. “You can tell Mr. Emerson that if the defense decides to call him today, tomorrow, or the next day, or the day after that, I expect him to be in that hallway. Do I make myself clear?”
“You do, Your Honor,” Velasquez said.
“Your Honor,” Sloane said, thinking on the fly. “If the defense opts not to call Mr. Emerson, I would request an order preventing the government from commenting on Mr. Emerson’s presence here, or on the defense’s decision not to call him. It would be highly prejudicial, especially because the defense could not comment that it had been forbidden to use LSR&C documents to impeach Mr. Emerson, were he to lie.”
“That motion, I will grant,” Harden said, and quickly added, “We’re finished in here, counsel.”
After Harden went through preliminary matters, the jurors returned and took their seats. Sloane called Mitchell Goldstone, LSR&C’s chief operating officer. Goldstone had been driven to the courthouse that morning from the Federal Detention Center at SeaTac, and his wife had provided him a suit, a tie, and appropriate shoes to wear in court.
Jenkins thought Goldstone looked at ease on the stand, perhaps because the trial subpoena had both compelled and freed him to testify. He told the court that LSR&C had been run as a CIA proprietary from the start of its existence, and that LSR&C had been paid by the CIA to provide cover stories for its field operatives, including providing them with “legitimate” employment. He testified that Carl Emerson had initially been employed as an officer of LSR&C, but that it was subsequently decided at CIA headquarters in Langley, Virginia, that it would be more prudent if he was an officer of a subsidiary, TBT Investments, to keep the money separated from investor funds. Goldstone said CIA money was funneled through TBT Investments to fund agents and their operations. He also testified that he’d met Emerson when Emerson came to the offices in November 2017. That piece of information would allow Sloane to argue in closing argument that Emerson was in Seattle at the same time Jenkins said he met Emerson on Camano Island.
Goldstone answered Sloane’s questions without hesitation and appeared calm and confident. But Jenkins and Sloane both knew that, because of the plea agreement he’d signed, Goldstone was easy pickings for Velasquez, and she wasted little time shoving that agreement down Goldstone’s throat.
“Mr. Goldstone,” Velasquez said. “It’s true, isn’t it, that you pled guilty to ninety-four counts of perjury, fraud, and tax evasion?”
“Yes,” he said. “I did.”
“You pled guilty to lying under oath nearly one hundred times, correct?”
“That is correct.”
“And your lies pertained to statements you had made that your company was a CIA proprietary, correct?”
“Yes,” Goldstone said.
“You also pled guilty to defrauding investors in LSR&C, didn’t you?”
“Yes,” Goldstone said.
“You pled guilty to running a Ponzi scheme, didn’t you?”
“I did.”
“After your arrest, for fraud, you didn’t call the CIA and ask someone to bail you out, did you?”
“I guess I just thought they would.”
“You didn’t call the CIA and ask someone to bail you out, did you?” Velasquez asked again, this time a little more forceful.
“No, I didn’t.”
“And nowhere in the plea agreement you signed does it say you were working for the CIA or that LSR&C was a CIA proprietary, does it?”
“No,” Goldstone conceded.
Velasquez was more than happy to sit down. Sloane looked to Jenkins. They both knew that any attempt to rehabilitate Goldstone would just make the defense look desperate. They dismissed him.
During the lunch recess, the defens
e sat at a restaurant table staring at their food. “That went a lot worse than I anticipated,” Sloane said.
“Not your fault,” Jenkins said. “Without the ability to introduce documents, Goldstone does look like a liar. But we had to put him on. What do we do about Emerson?”
They talked in detail about Judge Pence’s ruling, and decided it was too risky to call Emerson as a witness. “He’d carve you into little chunks,” Sloane said. “And the documents to prove he’s lying will be sitting in boxes in Judge Harden’s chambers. They might as well be somewhere on the moon, given the restrictions Judge Pence has placed on us.”
“Put me on the stand,” Jenkins said. He knew the risks, but he’d talked it over with Alex. If he was going down, it would be with a fight. He didn’t want to be convicted without ever getting the chance to look the jury in the eyes before they called him a liar.
Sloane turned to him. “Without the documents—” Sloane started.
“I know the ramifications and the risks, David. This isn’t on you. It’s on me. Put me on the stand. Let me talk directly to the jury. If the government is going to call me a liar, let them do it to my face.”
“It could backfire,” Sloane said. “The jury could see it as a desperate act—”
“Of a condemned man,” Jenkins said. “I know. And maybe I am, but I prefer to go down swinging.”
67
In the courtroom, as Jenkins had requested, Sloane stood and called him to the stand. Jenkins saw Velasquez look at Sloane as if he was crazy, but she also flipped through her binder. She had prepared for this possibility.
Jenkins felt his anxiety rise as he walked to the witness chair, but he managed to keep his right hand from quivering when he took the oath to tell the truth.
Sloane and Jenkins had agreed that it was important, as it had been in voir dire and in Sloane’s opening statement, to immediately alter the negative connotation of the word “spy” and to get the jury to acknowledge that America uses spies to protect national security.
“Are you a spy?” he asked.
Jenkins spoke to the jury. “Yes.”
“What country did you spy for?”
“The United States of America.”
“What agency were you working for?”
“The Central Intelligence Agency of the United States of America.”
“Did you at any time provide to a Russian FSB officer, or to anyone else, any information that you were not authorized to provide?”
“No. All of the information I gave was authorized.”
“Did you do anything other than follow CIA orders?”
“No.”
“Who was your case officer in the CIA?”
“Carl Emerson.”
“And you followed Mr. Emerson’s orders and instructions?”
“Yes.”
Sloane then asked, and Jenkins answered, questions concerning Vietnam, his initial recruitment by the CIA, and his time in Mexico City. Jenkins answered each question in about twenty-five words or less, to prevent the government from asking questions about subjects outside the scope of his answers. “Can you tell the court why you left the employ of the CIA?”
“Again, I can’t provide specifics. I left because I felt that the government had not been truthful with me about the intentions of a certain operation, and that operation had resulted in unnecessary deaths. I decided to leave.”
“Did you kill anyone?”
“No. But I provided intelligence.”
“Were you upset when you left the CIA?”
“No. I was saddened.”
“Why?”
“I thought I had found a career, something I was good at and loved. But I didn’t want to be a part of anything like what had happened.”
“When you left your employ with the CIA, did you tell anyone you were leaving?”
“No.”
“Why not?”
“In hindsight I wish I had. I wish I’d done a lot of things differently when I was in my early twenties. Now that I’m older and have a better perspective I would do things differently, but I can’t change the past. I just wanted to get out and get as far away as I could.”
“Did you go back to your childhood home in New Jersey?”
“No. I wanted a fresh start, so I went to Camano Island in Washington State.”
“Were you hiding from the government?”
“Pretty hard to hide when your name is on a deed to a ten-acre parcel of land and you pay income tax every year.”
Sloane asked why Jenkins had started CJ Security.
“I was looking for something that would give my son opportunities in life to be whatever he wanted to be. He’s smart. He takes after his mother.”
Several of the jurors smiled.
Jenkins told the jury of Randy Traeger’s proposal.
“Did you consider it an odd coincidence that Traeger would have a job seemingly right up your alley?”
“Not at the time, no.”
“What about now?”
“Now I wonder.”
“Did you have any suspicion that LSR&C was a CIA front for agents and their operations overseas, as Mitchell Goldstone testified?”
“No.”
“Did you know Carl Emerson was running TBT Investments as Mitchell Goldstone testified?”
“No. I hadn’t seen Carl Emerson or heard his name since I’d left Mexico City. He just showed up on my farm one day in November, after Alex had taken CJ to school.”
Jenkins told the details of his meetings with Emerson and what Emerson asked him to do.
“Did you think it an odd coincidence for Mr. Emerson to show up on your farm?”
“Not then, but I do now.”
Jenkins answered Sloane’s questions about the financial difficulties CJ Security endured, about the personal guaranties, and about the business loans the company owed.
“Is that why you accepted the job?”
“It’s one of the reasons, certainly,” he said. “But there was another reason.”
“And what was that?”
“Carl Emerson said agents’ lives were in danger. He said they would likely die if the operation wasn’t successful.”
“What was your cover supposed to be?”
“The best cover is one closest to the truth. I was a former CIA field officer, disillusioned and upset at the agency, and I had classified information to sell. I was told by Carl Emerson that I would go in, set the hook, and get certain things to occur. Then other agents would take over the operation.”
“How were you to contact Mr. Emerson, if needed?”
“He gave me a business card with a number on it.”
Sloane projected that card on the court’s computer monitors and Jenkins confirmed it to be the one Carl Emerson gave him.
“Did Emerson say anything to you about what would happen if the operation fell apart?”
“I was told that if anything went wrong, the agency would not acknowledge the operation.”
“Did you think they would acknowledge that you had been reactivated?”
“Not publicly, but yes, in private.”
“Is that why you voluntarily went to the FBI and spoke to Agent Daugherty?”
“Yes. I asked him to look into the matter. I thought the CIA would acknowledge my reactivation and would investigate what I was telling Daugherty.”
Sloane and Jenkins got out the basic story. It was time to finish up.
“Did you at any time, give to the FSB, or to anyone else, any information that was not authorized?”
“No. I hadn’t been a field officer for decades. I didn’t have any information that wasn’t authorized.” They had discussed this the night before and considered it a strong argument.
“Did you do anything other than follow CIA orders?”
“No.”
The final two questions were designed to impress to the jury that Jenkins was one of the good guys.
“Are you loyal to the United States of Amer
ica?”
“I always have been. I love my country.”
Sloane let that answer linger, turned, and sat down.
Velasquez stood and approached the lectern. “That’s quite a story, Mr. Jenkins. It dovetails nicely with Mr. Goldstone’s story, doesn’t it?”
“It’s the truth.”
“You knew, didn’t you, Mr. Goldstone’s allegation that he, too, had been working for the Central Intelligence Agency?”
“I learned of it. I’m not sure when, but I learned of it.”
“Mr. Sloane asked you about coincidences. I’d like to ask you about that as well. It’s quite a coincidence, isn’t it, that Carl Emerson, whom you hadn’t seen in some forty years, just happened to show up on your farm at the same time your business was on the verge of financial collapse, isn’t it?”
Jenkins had to be careful here. If he said no, he would have to testify, without the documents to support him, that Emerson, or someone else, had orchestrated withholding payment to CJ Security to put Jenkins under duress. It might be too much for a jury to believe. Instead, he piggybacked on Goldstone’s testimony that he had met Emerson at LSR&C in November. “I didn’t think so at the time because I didn’t think the two were related. Now that I know Mr. Emerson was working at LSR&C, no, I don’t think it was a coincidence.”
“You were a trained CIA field officer and you didn’t question your former station chief showing up, unannounced, decades after you left, offering you a job when you just happened to need money?”
“I didn’t question his motives at that time. But I did question why he was there. You bet I did.”
“Isn’t it true, Mr. Jenkins, that when you met with FBI agents, you didn’t ask for a CIA representative to be present at those interrogations?”
“That is true.”
“You told Agent Daugherty that you had disclosed information to a Russian FSB agent.”
“I told Agent Daugherty that I had not disclosed any unauthorized information.”
The Eighth Sister Page 35
