A Conflict of Interest Read online

  On the flight home, it’s business as usual between me and Abby. I’m a little fuzzy on how things precisely ended last night, but I’m sure that there was no inappropriate contact. I recall being in the elevator together, but somehow when I got out, she didn’t. I wonder if Abby would have followed if I’d asked, but now I’m grateful I’ll never know.

  Despite the fact that nothing untoward happened, she has begun calling me “boss.” I’m concerned that it’s an effort to set boundaries, but vaguely recall that the practice began early last night at the bar, and so I conclude she’s just doing it to be funny.

  At least I hope that’s it.

  The flight ends up being delayed and we don’t land until two. As we’re taxiing to the gate, I send an email to the joint defense team, asking them to meet us at Cromwell Altman at three. Even with the short notice, everyone emails back that they’ll be there, a further testament to how beholden this group is to future referral business.

  We hit traffic on the way back from JFK, and all the members of the joint defense team other than Charles Eastman are already in the Cromwell Altman reception area when Abby and I arrive. I make a quip about being late to my own party, and they each chuckle politely, the way I do when Aaron Littman makes a joke, more out of deference to his power over me than because I think it’s funny.

  The receptionist is telling me that we’re in Conference Room E when Eastman comes off the elevator. “Are we going to meet here?” he says with a chuckle, and then looking down at Abby and my luggage, he adds, “This isn’t one of those two-day meetings, is it?”

  The group gives him a more sincere laugh than I got.

  “We just came in from visiting with Michael,” I say. “Follow me to the conference room and we can get started right away.”

  As we assemble, there are the usual gripes about the food (cookies, fruit, soft drinks, and coffee are the Cromwell Altman selections after 2 P.M., but the cookies are oatmeal raisin and the consensus among the joint defense team is that chocolate chip should be included for the next time). When everyone has filled their plates and is seated, I begin the meeting just as I had the previous one, by going around the room asking for any new developments. This time Joe Freeman goes first, and when I call on him he thanks me, as if he’s been given the floor to make a wedding toast.

  “I called Pavin earlier in the week,” he says. “After some phone tag, I reached him on Wednesday. I think we sent an email to everyone about that call.” He turns to his associate, a woman whose head is buried in her legal pad as she scribbles furiously. “Michelle, we sent everyone an email, right?”

  Michelle looks up for a second and nods. “Okay,” Freeman continues. “So you all know what happened. I did the usual dance, telling Pavin that my guy is a Boy Scout and I’d hate for the government to get the wrong idea, so if he had any questions or legal theories that he could discuss with me, I’m all ears. This guy doesn’t just follow the book, I think he’s memorized it. Just like he said to Jane, he told me, quote, It’s a one-way street, closed quote. Then I offered to come in myself and give him the lay of the land. He wasn’t too interested in that either.”

  Matthew Trott breaks into Freeman’s narrative. “Pavin told me that’s now the Office’s policy.” Former AUSAs, as Trott and McMahan both are, refer to the U.S. Attorneys’ Office simply as “the Office.” Sometimes, when the non-AUSAs of the group want to be especially annoying, one of us will ask if they plan on taking the issue up with Michael Scott in the Scranton branch. “They don’t allow attorney proffers anymore,” he adds.

  “Proffers” is one of those terms of art that lawyers bandy about but is almost never used in the real world. It’s about telling the prosecutor what happened. Of course, lawyers prefer that they do the telling, because that way the government can’t use what’s said as evidence later on against the client—which is exactly the reason the government frowns on the practice.

  The group looks to Eastman for confirmation that he, too, was not given permission to make an attorney proffer. “Same here,” he says, realizing we’re going out of turn. “Pavin said he only wanted to hear the client’s story directly from the client’s mouth.” Eastman pauses, chuckling. “Actually, what he said was that I’d be wasting my time with anything else.”

  With that, everyone’s eyes swing back to Freeman for the completion of his report. “So Pavin then tells me I should bring Ruderman in. He was offering the full Queen, and making it sound like it was immunity.”

  We all speak this shorthand, so we know Freeman’s referring to a “Queen for a Day” agreement, the unfortunate nickname given to what the U.S. Attorney’s Office officially refers to as client proffer agreements. A Queen for a Day agreement prohibits the government from using anything said to them in their case in chief; translated into normal-people speak, that means that it forbids testimony about what was said during the meeting when the government puts on its evidence. But as always, there’s a catch: the government reserves the right to use the information any way it wants to during its rebuttal case or in cross-examination. Meaning that if your story at trial differs from the one you told the government during the Queen interview, there’s no stopping Uncle Sam from using what you said in the interview however it pleases. And most importantly for the other members of the joint defense group, a Queen doesn’t at all limit the use of the information against other people—so, if someone starts pointing fingers, which often happens, everyone’s risk of indictment goes up.

  “I told Pavin thanks, but no thanks,” Freeman continues. “Get this—he actually said that if my guy was really as innocent as I claimed, he’d jump at the chance to clear his name. I told him this was my call, not the client’s, and it would be malpractice for me to let him go in if Pavin isn’t willing to show me his first.”

  Freeman looks at Jane McMahan when he says this, not meaning to, I think. He must have belatedly realized his phrasing was less than politically correct.

  “What? You think I’ve never used the expression?” McMahan says. “Let me assure you, I’ve seen a lot more of theirs’ first,” she adds, eliciting laughter from the rest of us, and smiles from the associates, who are too busy scribbling to take time out to laugh.

  “I put it a bit more bluntly,” Eastman says. “When Pavin pulled that crap with me, I told him this isn’t my first rodeo. I just don’t bring clients in anymore. I didn’t tell him this, but about five years ago, an AUSA who shall remain nameless—Larry Ames—screwed me over something fierce. I brought my guy in because I was told he was a witness, nothing to worry about, the whole song and dance. So my guy goes in, everything goes great, and then I get a call two weeks later from the prick Ames that they’re going to indict my guy. I say, ‘What the fuck? He didn’t lie to you guys.’ And Ames tells me that my guy said something that, I swear, he never came close to saying and he’s going to charge with a 1001. So, I said, ‘Look, we have notes of the meeting, that’s not what he said and he never lied to you guys, so there’s no basis for a 1001 charge.’ And Ames says, ‘We don’t rely on defense counsel’s self-serving notes; we’ll use our own, thank you.’ As if his notes aren’t self-serving. Long story short, client fires me, and now he’s a long-term guest of the government. So ever since then, I follow a blanket rule—no client proffers. If the client wants to do one, he’s not doing it with me as his lawyer.”

  This is the greatest danger to agreeing to talk to the prosecutor. It is a federal crime—set forth in section 1001 of the U.S. penal code—to lie to a federal officer, even if that lie is not under oath. The result is that a 1001 charge is the prosecutor’s ace in the hole, a way of imposing criminal liability even if he can’t prove any other criminal conduct. That’s how the government got Martha Stewart and Scooter Libby; when they couldn’t prove the underlying offenses, they alleged a 1001 violation.

  After Eastman’s war story, Trott concurs that he got the same offer to bring his client in, and he makes a point to tell us Pavin also delivered the “o
ne-way street” line to him. And like the others, Trott says he told Pavin to pound sand.

  “I suppose that leaves me,” I say, “and I, unfortunately, have a problem. Our mutual benefactor, Michael Ohlig, is insisting on going in. I keep trying to talk him out of it, but he says he can make this whole thing go away.”

  “If he’s got those powers, maybe he can explain some stuff to my wife,” Trott cracks. “There’s no way. Just no way.”

  “Seriously, Alex,” Eastman says, “I assume you’ve explained the facts of life to him?”

  “I have. He completely believes that, one, he did nothing wrong and, two, he can persuade Pavin of that. I think his exact words were that I was underestimating his ability to be charming.”

  “Look, all of our clients are absolutely one hundred percent not guilty,” Sheffield says, channeling O.J. Simpson with a heavy side of sarcasm. “That doesn’t mean we let them just hand over the defense to the government.”

  “You’re preaching to the choir,” I say. “I told Ohlig I would share his views with the group, and we wouldn’t make a decision until after I’d heard your objections and discussed them with him.”

  “Where should we start?” Eastman says. “Forgive me if I’m out of line here, but I’ve got the most gray hair of the group, so I hope you’ll take this in the spirit with which it’s intended. If your guy goes in, he doesn’t just kill himself, he hurts all of us.”

  “That’s right,” McMahan says quickly. “My gal is the least culpable. She’s a secretary, for God’s sake. But if the head honcho is going in, I’ve got to revisit my thinking on keeping her out.”

  “I’m with Jane,” Trott says.

  “Me too,” is Freeman’s input.

  “Alex,” Eastman says, using his Dutch Uncle voice, “all clients want to go in, and they all want to testify at trial. And although no one likes to tell a client he’s full of it, the quicker you tell Ohlig that, the better—not only for him, but for you, too.”

  12

  Right after the meeting breaks up, I call Ohlig.

  “Counselor,” he says, as he always does when I call, “to what do I owe this pleasure?”

  “Your favorite guys and I just sat down and broke bread.”

  “Let me guess—they think you’re right and I’m wrong about talking to the prosecutor.”

  “That doesn’t even begin to address their feelings on the subject.”

  “Well, forgive me if I’m not surprised that a group of lawyers tend to think alike.”

  “Michael, they were, to a person, adamantly opposed to your going in. When the prosecutor invited their clients in, each one of them told him to screw himself. They all think it’s absolutely crazy for the target of the investigation to talk to the government.”

  “How many times do we have to have the same discussion, Alex? I mean, is that what happens when you get paid by the hour? You feel the need to plow the same ground over and over again?”

  “Michael, you need to listen to me. Going in is a mistake. Period. End of discussion. There’s no way they’re not going to indict you, and so you accomplish nothing by going in except weakening our defense at trial. There’s a reason none of the others are going in, you know.”

  “None of the others are going in because they’re assuming the weight of this is going to fall on me, and they’re hoping to ride this out by hiding in the tall grass. But I’m the guy with a bull’s eye on his back.”

  “If you go in, one of the likely side effects will be that they’ll go in. Otherwise it looks like they’ve got something to hide.”

  “So?”

  “So, whatever they tell the government will be admissible against you at trial. That’s one of the reasons you’re paying for everyone’s defense—so we could get them counsel who are smart enough to keep them away from the U.S. Attorney.”

  “Alex, now you need to listen to me. I’m going in. Period. Call him right now and set it up. End of discussion.”

  And then he hangs up.

  Pavin answers his phone, “Assistant United States Attorney Christopher Pavin.”

  “Christopher, it’s Alex Miller here.”

  “Just the man I was about to call,” he says, which is never a good sign.

  “What about?”

  “Nope, you dialed the phone, you go first.”

  This is only the second time I’ve spoken to Pavin. The first was right after I was retained. During that call, he gave me the same song and dance as he did the other members of the joint defense group—uttering the one-way street line and saying that if my client really had nothing to hide, he’d come in under the Queen for a Day. I told him I’d consider it and get back to him.

  “I actually called you to set up a time for the Queen for a Day,” I say.

  “Is that so?”

  At first I don’t think he expects a response, but his continued silence tells me to say something. “Yeah, that’s so” is what I come up with.

  “The grand jury just handed up a true bill.”

  He means that Michael Ohlig has been indicted for securities fraud.

  Pavin says this as if it should be of no surprise, and on one level it isn’t. The prosecutor’s power to influence the grand jury is so complete that it is a commonly told joke among lawyers that he could get the grand jury to indict a ham sandwich. But Pavin must know I had absolutely no sense an indictment was imminent, and the timing is troubling, indicating that he may just have uncovered new evidence.

  I decide to go fish for the explanation. “What happened to giving my client the option to come in and provide you with evidence of his innocence?”

  “First off, I made the offer to come in more than a month ago. I took your silence as evidence of a lack of interest. But look on the bright side, I’m actually doing you a favor.” The smugness the others had mentioned about Pavin is manifested by his not finishing the thought. He’s going to make me ask.

  “How do you figure?”

  “I’m saving Mr. Ohlig the problem of a thousand one count in the indictment.”

  Translation: he’s preventing Ohlig from lying to his face and getting prosecuted for it afterward.

  “Thanks,” I say, as sarcastically as possible. “I’ll be sure to pass that onto him.”

  “It’s not all bad news. I’m willing to allow your client to surrender voluntarily, so long as he does it by eight tomorrow morning.”

  In this respect, Pavin is being generous, eschewing a splashy arrest with the obligatory perp walk for the media, but that doesn’t mean I shouldn’t try to buy Ohlig some time. “Mr. Ohlig will, of course, be happy to voluntarily surrender, but he’s currently in Florida—”

  Pavin doesn’t let me finish the thought. “Offer expires right now. I need your commitment that he’s showing up at our office at eight tomorrow morning or I’m sending the federal marshals down to his house right now to arrest him, and that’ll guarantee he shows up tomorrow morning at eight. I checked; there are flights out of West Palm until ten, so he’s got plenty of time to get up here tonight.”

  So that’s that. We both know I have no leverage in this fight, and so there’s no point for me to posture.

  “With an offer like that, I’ll make sure my client is on the next flight up here. We’ll surrender tomorrow morning at eight.”

  “Good. And more good news is that I’m not going to kill you on bail. I just need enough so it means something. Fifteen million was the number I had in mind. And I’m going to need a travel restriction, of course.”

  “He’s going to need to go back to Florida, but we can live with a New York-and-Florida-only restriction.”

  “That’s fair. He’ll have to surrender his passport, of course.”

  “That’s not a problem.”

  “What about the money?” Pavin asks.

  I could try to negotiate it down a bit; Pavin probably offered fifteen million thinking that we would agree on ten. In this case, however, I’d prefer not to give Ohlig any unnecessary in
centives to head to Venezuela.

  “Fifteen million is fine, so long as he can put up the bond equivalent.”

  “It sounds like we have a deal then.”

  After hanging up with Assistant United States Attorney Christopher Pavin, I take a deep breath, then call Ohlig.

  “That was fast, counselor.”

  “Bad news, I’m afraid. Pavin said he was just about to call me when I called him. The grand jury just issued an indictment.”

  I expect Ohlig to blame me for not letting him meet with Pavin sooner to head this off, or maybe just for him to curse Pavin’s name. I then flash on Eastman’s story about being fired after a prosecutor bait-and-switched him, and wonder if Ohlig is about to say that he’s going to find new counsel. He doesn’t say anything, however, so I continue. “I told Pavin we wanted to take him up on the Queen for a Day offer, but he said it was a good thing we didn’t because he would have added a count to the indictment for false statements.”

  Ohlig still doesn’t respond. I wonder if he’s in shock, but by this point I know he doesn’t shock this easily. He isn’t saying anything because he knows nothing he’d say would serve any purpose.

  “The good news is that we’ve agreed on a bail package,” I go on. “I can’t guarantee the judge will sign off, but you’ll likely only have to post a bond, and you’ll be spending tomorrow night in your suite at the Pierre.”

  This is the point when clients ask how much money they’ll have to post, or get me to swear that there’s no way they’ll be going to jail. Some inquire what happens if they don’t show up.

  Ohlig is still silent.

  “You need to fly up tonight and be at my office tomorrow by seven A.M. We’ll go down to the FBI together. After you’ve gone through processing, they’ll take you in for arraignment, at which time you’ll enter a not-guilty plea.”