by Tom Swyers
“Yes.”
“How many tank cars were involved in the Albany explosion?”
“I think there were five.”
“How many tank cars were on that siding at the time of the explosion?”
“Those five.”
“Were they moving when they exploded?”
“No.”
“Do authorities know the cause of the explosion?”
“Federal Railroad Administration investigators say they were detonated. That’s all I know.”
“Where were the nearest loaded Bakken oil-tank cars to these five at your facility in Albany?”
“I don’t know.”
“But far enough away that they didn’t explode?”
“It turned out that way.”
“Did the explosion impact the main track going to your facility?”
“Yes.”
“How so?”
“We couldn’t use the main track afterward to accept shipments of crude.”
“For how long?”
“One day.”
“Have you been able to use it since then?”
“Yes.”
“So, other than that one day, you’ve been able to receive Bakken crude like nothing had ever happened. Is that correct?”
“I suppose so.”
“I heard you speak at your conference in Williston a few weeks ago. Didn’t you say that Helmsley had a credit line and wasn’t afraid to use it?”
Kincaid didn’t flinch when he learned that David had listened to him address his employees. “I don’t recall exactly what I said.”
“Isn’t it true that banks reassess their credit lines to oil companies twice a year, once in the spring and once in the fall?”
“I don’t know their schedule.”
“But they do reassess their credit lines with you. Correct?”
“Yes.”
“Doesn’t the credit line that banks extend to companies like Helmsley depend on the price of oil?”
“There are other variables, too.”
David said, “I move that the witness’s testimony be stricken as nonresponsive. Please answer the question.”
“Yes, they do consider the price of oil in valuing our holdings.”
“What is Helmsley’s debt-to-EBITA ratio? EBITA is defined as earnings before interest, taxes, and amortization.”
“I’m not sure.”
“Here I have a copy of Helmsley’s Form 10-Q, filed with the SEC last quarter,” David said, pulling a document from his briefcase. “Is this Helmsley’s 10-Q?”
Kincaid thumbed through the pages. “Yes, I believe so.”
David moved to put the document into evidence, and Pottenger didn’t object.
“Can you refer to it and tell us what the ratio is?”
“I’ll need a calculator.”
David pulled one from his briefcase and handed it to Kincaid. After a minute, Kincaid said, “I calculate it as twenty-four.”
“So, as of the end of last quarter, Helmsley had twenty-four times more debt than earnings using EBITA.”
“If you say so—”
“I’d like to refer you to an article from Oil & Gas News. Without objection, I’d like to put it into evidence.”
David handed it to Pottenger, who said, “I don’t have any objection, but I don’t see the point.”
“You will in a second. In this article, one expert says that oil and gas companies that have a ratio greater than four are being referred to a bank’s workout groups as distressed companies. With a ratio of twenty-four, has Helmsley been in discussion with its banks about its debt and credit line?”
“We’re always in discussions with them.”
“Have you talked about filing for bankruptcy with the banks that hold your lines of credit?”
“Objection,” Pottenger said. “Relevancy.”
“Noted. You may answer,” David said.
“I don’t recall if I’ve ever discussed it.”
“Mr. Kincaid, haven’t you been calling for a bottom in oil prices since the price went over ninety dollars per barrel? I have some news articles where you are quoted as saying this, if you’d like to refresh your memory.”
“I’ll take your word for it.”
“Haven’t you been calling for a bottom in oil prices all the way down from the peak of oil prices at one hundred seven dollars per barrel?”
“Objection,” Pottenger said. “Relevancy.”
“Noted. You may answer,” David said.
“I’d have to read the articles to check if I was misquoted.”
“Isn’t it fair to say that Helmsley is dependent on the price of oil?”
“Objection,” Pottenger blasted. “I don’t understand the point of this questioning. I think you’re harassing my client, and I have a good mind to put an end to this deposition and to seek relief from the judge.”
David just ignored Pottenger. It was time to play his hand in front of Julius Moore.
“Here’s the point, Mr. Pottenger,” David said. “Helmsley took on loads of debt to expand its operation by drilling more wells and by buying other producers out. It did this relentlessly all the way down from the peak in oil prices under the mistaken belief that oil prices had bottomed and they were going to recover their losses. When that didn’t happen, it put a great deal of financial stress on the company. The banks pressured Helmsley. They reduced the line of credit and threatened to take it down even more. Helmsley was already financially extended due to having spent wildly. It was on the brink of bankruptcy.”
“You don’t know what you’re talking about!” Kincaid blurted.
David pressed on. “I think Mr. Kincaid panicked and decided to try and do something about the price of oil. So he hired some people to check out targets at various locations across the country. The plan was to trigger a rise in oil prices by disrupting the supply chain. But he discovered at these sites there were people who were monitoring the oil trains. They were in the way, and they had cameras. He was afraid they might see something, so he needed to deal with them.”
“I’ve heard enough,” Pottenger erupted. “This is outrageous. The deposition is over.”
David turned to the court reporter and calmly said, “We are still on the record.”
David turned to Kincaid; the man’s face was almost as red as Amber’s lipstick. “Somewhere along the line,” David continued, “you somehow figured out that these people were part of Harold Salar’s organization—The Killdeer Society. When you traced these people back to Salar, you knew he was using this information to help investors trade oil. You learned that they were counting tank cars, and you believed that this information was being used to drive down the price of oil. You thought that by eliminating Salar, oil prices would rebound and save you from your bankers.”
“That’s ridiculous!” Kincaid said, rubbing his dampening palms on the thighs of his suit pants.
“Enough,” Pottenger growled. “We’re walking out.” He stood up and wheeled toward the safety of the door to the hall with Kincaid in his wake. Amber just sat there, staring silently at David with her arms and legs crossed. One of her black-sheer-clad legs bounced, while her ice-pick high heel dangled off her toes.
David looked at Moore and raised his eyebrows. “Should they leave before I have a chance to finish, Mr. Moore?”
Moore looked at David for just a second. Their eyes met. David shook his head ever so slightly. Moore stood up and announced, “My name is Julius Moore. I’m a special agent with the FBI.”
He pulled out his wallet and flipped it open to reveal his badge and ID. Pottenger’s eyes bulged. The color drained from Kincaid’s face. Amber didn’t budge from her chair, continuing to bob that leg and stare.
“Please sit down,” Moore insisted.
“Do you have a warrant?” Pottenger asked.
“Do I need to obtain one?” Moore asked. “We can either talk right here, or we can go to my office to continue this discussion.”
Kincaid and Pottenger looked at each other. When Pottenger sat down, Kincaid followed his lead.
“Continue,” Moore said to David as he took his seat again.
“Are we still on the record?” the court reporter asked.
“Yes,” David said.
“On top of your desire to see oil prices rise by knocking off Harold Salar, I believe you had another reason to get rid of him. You knew he was an expert witness in Ben Prior’s lawsuit against your company. Further, you knew that his testimony would be groundbreaking and damaging. If it led to calls for stabilizing the oil before shipping via rail, you didn’t have a way to pay for it. You knew that by getting rid of Salar, you’d likely put an end to the lawsuit. That would squash any debate about the dangerous Bakken crude that is snaking its way through poor neighborhoods across the country.
“I saw the empty manila folder in his apartment that held his findings. I suspect you took care of the evidence by shredding Salar’s expert’s report, and then you took care of him, too. After that, you started blowing up trains and waited for the price of oil to pop. But I don’t think you correctly anticipated how the feds would react.
“At first, the feds didn’t attribute the explosions to a terrorist attack. They blamed them on derailments due to track-maintenance issues. They either were inept in their investigation or didn’t want to scare the public. So I believe you blew up more oil trains because you knew the more trains you blew up, the more likely that the feds and the media would be forced to look at the terrorism angle.
“I don’t know how, but your people located me and tracked me in North Dakota. They followed me to Valley City and planned to time a train explosion while I was in town by throwing a couple of detonators on the underbelly of a few tank cars that were stopped or were moving slowly.
“You knew I was a suspect in Salar’s death. After your people pistol-whipped me in the park, they phoned in the terrorist idea to the police and tried to put me in the middle of it, too. I think you hoped the terrorism theory would take root with both the feds and the media, making me the fall guy.
“You also wanted to make sure the lawsuit didn’t go forward. You had already taken care of the expert, and you wanted to take care of the attorney litigating the case, just to make sure. By pointing the feds in my direction, you got the added benefit of deflecting any investigation that might come your way.
“I suspect you blew up trains in Moorhead as an insurance policy, knowing that the more trains you blew up, the more likely terrorism would be blamed and oil prices would go up. You also were able to take out another track route for another producer shipping Bakken crude on that rail line.
“The price of oil did spike after that. I wonder if you or your company placed oil-futures bets that the price would go up and then cashed in on them. But I believe you were still worried that the trail might lead back to you. So I figure you blew up some tank cars at your own facility in Albany to throw off any investigation into your company. I think that about covers it.”
“If I may speak now,” Pottenger said, “what you rattled off is absolute, utter nonsense. You don’t have any proof for this wild theory of yours.”
“The proof is in the outcome,” David calmly said. “You see, Mr. Kincaid is right. The so-called terrorists wanted to disrupt the energy supply chain, but only insofar as they cut off the flow of oil for players other than Helmsley. I think Helmsley is the only oil company that could maintain its operations and capitalize on the explosions. I doubt if that is a coincidence.”
“Absurd,” Pottenger said. “You have us here under false pretenses. You said this was going to be a deposition, but it has turned into an inquisition.”
“Mr. Pottenger, you of all people should know that it’s not what I say that counts. It’s what I think. You should have prepared for what I think, not what I say.”
“Preposterous,” Pottenger blurted.
“Exactly what I thought thirty years ago. ‘Do as I mean, not as I say.’ Now, that’s a preposterous thought, Mr. Pottenger. Only your wife might be able to do that, but even she couldn’t do it consistently.”
David knew Pottenger didn’t have a wife. He had never married. The law was both his wife and a jealous mistress, all rolled into one.
“Now I have some questions to ask you both,” Moore said to Pottenger and Kincaid.
“Are you finished with the court reporter?” David asked.
“Yes,” Moore replied.
“Do you need me anymore today?” David asked.
“No, you can go. I’ll be in touch,” answered the agent.
With that, David stood and shimmied his leg so his pants hem would cover his ankle bracelet. As the skies had grown darker outside, his reflection in the conference-room window had grown sharper. With the aid of that reflection, he straightened his tie. Then he brushed off his suit jacket and picked up the briefcase that Annie had given him years ago when he’d passed the bar. Leaving the door open, he exited the room with his chin up, proud that he’d accomplished his goal of adding someone else to the suspect pool.
David had thrown some chum in the water, and he could hear Moore devouring it with all the avidity of a shark in a feeding frenzy as he strode down the hallway. He believed the agent would pursue the Kincaid lead to good results. But if that didn’t work out, like any good lawyer, David had a plan B. He had his recording and also the deposition. He would find a way to leak them to the press if the feds dropped the ball.
On his way out, he made it a point of acknowledging everyone he saw with a “hello,” “hi,” or “how you doing?” to looks of bewilderment. That sort of thing didn’t happen at Baxter & Chadwick. Silent, stoic reserve was the signature style.
When he walked out the front door of the building, David tried to imagine what his life would have been like if he had worked for the firm after graduation. But he couldn’t imagine being a career lawyer there and ending up like Dick Pottenger. For an instant, David felt pity for Dick Pot. But the emotion quickly passed, and his thoughts turned to Christy and Annie.
David had a real family.
Pottenger only had Baxter & Chadwick. One day, when he died at his desk, they’d assign some first-year associate to draft his obituary. A committee of partners would have to rewrite the lawyer’s life story before its release to the press. Then the firm would reach a deal with some cash-starved university to house his papers as a testament to the firm’s reputation. Once placed there, these cartons of relished victories and astute legal insights would sit forever forgotten in a shrine to posterity.
When David hit the street, he discovered that the snow had turned to sleet. The driving wind made the sleet feel like needles pricking his face. But at least they weren’t lethal-injection needles. That nightmare was all too familiar.
Truth be told, the sleet felt good. As he emerged from the stale air of the conference room, the adrenaline surge of the deposition heightened his senses. Suddenly, he saw things, smelled things, felt things, heard things that had been drowned out lately in an overall feeling of helplessness and despair. Feeling alive for the first time in a long time, he savored the moment.
THIRTY-EIGHT
It was the morning of Christmas Eve at the Thompson household. The shining red Christmas lights glowing beneath last night’s powdered-sugar snow made the shrubs in front of the house look like cherry gumdrops. The air was still and hushed, the way only a fresh snowfall can muffle the sounds of everyday life. It smelled of the sweet applewood burning in the woodstove in their living room. David was outside, getting the presents he’d wrapped for Christy and Annie out of the trunk of his Mustang. He tiptoed into the house and slid them under the Christmas tree that sat framed by the front window. Next to the tree on the fireplace mantel, Annie had placed a menorah.
David had told Annie and Christy that he didn’t need any presents this year. He was feeling increasingly upbeat since the Kincaid deposition a few weeks earlier. His life looked like it was turning around. As
the days rolled off the calendar, he could sense that the criminal-justice system was loosening its grip on him. He counted his blessings and was grateful that he seemed to be edging closer and closer to freedom with each passing day.
After David had left the deposition that day, Dick Pot and Kincaid eventually went into bunker mode. But it didn’t matter. A few days later, Julius Moore personally arrested Ali Rahman Yasin near a Canadian Pacific oil-tanker train just outside the town of Dakota Junction, Minnesota. Yasin had had explosives in his car and was with a woman at the time. When Moore showed David her picture, he recognized her as the same orange-haired dancer who had sat next to him at the Cowboy Bar and Grill in Killdeer.
When the Department of Justice offered her a lifetime sentence behind bars as opposed to a thin mattress on the lethal-injection table, she ratted out Yasin, Helmsley Oil, and Donovan Kincaid. She had been Yasin’s accomplice at Valley City and worked as a consultant for Helmsley Oil. She was the go-between who had helped set up and carry out the terrorism plot, with Yasin acting as the bomber.
It turned out that Ali Rahman Yasin was not a practicing Muslim at all. He was a native-born American of Pakistani descent from New York City. He had no connection with ISIS. His god was the almighty dollar, and that’s what the terrorism plot offered him. It looked like Yasin and Kincaid were going to take the fall for the terrorist bombings, as well as the killings of Harold Salar and the other Killdeer Society members.
At 9:15 a.m., David sat at his kitchen table, sipping juice and working his way through a half-peeled banana. Annie and Christy were still asleep upstairs. He had been awake since 4:00 a.m. It wasn’t that he couldn’t sleep. It was a matter of choice; this was his new outlook on life. After all he’d been through, he planned to treat every day as if it were his last day on Earth. He didn’t want to miss a moment.
The applewood burning in the woodstove crackled at the same time David’s cell phone on the kitchen table vibrated with an incoming call. He picked it up and recognized the 701 area code that flashed on the display. North Dakota was calling—the entire state had just a single area code. That area code had been etched into David’s brain. He felt surge of adrenaline as the tension of fight or flight echoed through his body.
