by Marc Rainer
Just a legal term for rats, Beretta thought. But that seals the deal. I’m out of the States for the duration.
He told himself that it wasn’t really a bad thing. He was in a beautiful place. The skiing was good, and his money was safe. He’d had no difficulty getting by with the language, either. The Italian he’d learned from his parents and grandparents was very close to the Catalan spoken in Andorra. He thought about trying to find a woman to settle down with, maybe even having some kids.
He shook himself out of the good vibrations. He had always had trouble with one thing, and that was losing. All the planning that he’d carefully done, all the actions he’d taken, had been done with the goal of becoming the don in Kansas City. He told himself that he’d been so close.
Smarten up, Paulie.
The realistic side of his head was speaking to him again. He knew it was correct, and that he needed to heed the advice it was offering. There’d be no going back now. Even if he did find a way to beat the case the feds had on him—which was not going to happen—and even if he found a way to get rid of Minelli—which could certainly be arranged—there was the problem of the Commission.
The same American Mafia controlling entity which had first been exposed at the Apalachin, New York meeting in the late fifties—when the family bosses were trying to carve up the bones of Albert Anastasia’s businesses after they’d whacked him—had to have their pounds of flesh from any business under their umbrella. The ruling families controlled everything in the States. If you ran a sanctioned scam, the don got his cut, and he passed a percentage up the line to the real bosses, either in Chicago or in New York.
If you ran a non-sanctioned deal—like Beretta’s heroin business had been—then the bosses got pissed, and when the bosses got pissed, people died. In Beretta’s case, there were multiple reasons for the bosses to want his head. First, it would be obvious by now that he was running a non-sanctioned scam; he had violated the rules even more by dealing dope, and whether that had been allowed at times in the past didn’t matter. His don—Minelli—would not have blessed it. Second, once aware of the heroin scheme, Minelli would have also smelled the power play that Beretta was planning to replace Fat Tony as the don of Kansas City. Finally, none of the bosses were getting their cuts.
Yeah, I’m here for the duration. I have to accept it, make the best of it, be happy that I thought about this far enough in advance to plan for the contingency.
A voice from the other side of his hotel room door interrupted his deliberations.
“Sr. Beretta? Servei d’habitacions.” (Mr. Beretta? Room service.)
He smiled. There was another plus to his new existence. The food was great, and he didn’t have to cook it. He could make this work. It wasn’t so bad.
Lee’s Summit, Missouri
Trask opened the garage door to the expected greeting from the three furry faces.
“How are our little ones tonight?” he asked Lynn after he kissed her.
“I had a little trouble getting Boo to eat her dinner. She just picked at it for a while. I had to sprinkle some magic dust on it to get her to eat.”
Trask smiled. “Magic Dust” was Lynn’s term for the crumbs of a variety of dog treats that came from various containers of dog biscuits and soft treats. When the containers were otherwise empty, the residue was always dumped into a sandwich baggie, and became “magic dust,” a usually reliable cure for lagging puppy appetites.
“Did you make it to the dog park today?” Trask asked her.
“Yes.”
“How’d she do out there?”
“A little slower than normal. She just seems to be a little depressed today.”
“Let’s hope she comes out it. We’ll see how she does with her school after dinner.”
After his meal—a more reasonably portioned one than his lunch—Trask sat on the couch and called the pups over. Boo performed all her tricks as usual, but she spit out the reward treats instead of eating them. After a lot of cajoling, Trask finally got her to swallow a couple of the biscuits.
“I’m worried about her,” Lynn said with tears in her eyes.
“Me, too,” Trask said. “Did she get her shot yet?”
“Yes. Right after her dinner.”
“Let’s see how she’s doing tomorrow, then. Maybe she just has an upset stomach or something. I have the suppression hearing in the morning. Once that’s done, I’ll head home, and we can take her to the vet if things haven’t improved.”
Lynn just nodded.
“I won’t let her go into a downward spiral,” she finally said after a moment, her voice quivering. “The vet has always told us that dogs live in the moment. I can’t let her final moments be all bad ones.”
Trask nodded. “Let’s hope we’re not there yet.”
Kansas City, Missouri
“All rise.”
The clerk called the courtroom to order. Magistrate Judge Hamilton entered from the door behind her bench and climbed into her throne.
“Judge Hamilton again?” John Foote asked in a whisper. He was standing to Trask’s right at the prosecution’s counsel table. Cam Turner was standing across the table.
“She and Judge Brooks had the earlier, related case,” Trask explained, “so anything that follows that first case with the same or related facts goes back to them.”
Foote shrugged. “This should be fun, then,” he said.
Trask knew what he was thinking: two high-speed, high-intensity New Yorkers about to go at it, and we draw the rookie magistrate with control freak issues.
Yeah. Lots of fun.
He had spent the previous afternoon getting Joe Perina’s story committed to his own memory and trying to get Perina’s temper down to a dull roar. All you had to do to light the fire under the big man was to mention Larry Bernstein’s name. Bernstein had apparently accused Perina of lying on the stand on multiple occasions, and Perina had taken those accusations very personally. Worst of all, Trask figured that Bernstein knew he could get inside Joe’s head by making the same kind of accusation again.
Trask had spent at least an hour reminding the postal inspector that his demeanor on the stand and how he said something could be even more important than what he testified about, especially with a rookie magistrate on the bench. He had told Perina that Heidi Hamilton had probably never seen justice played out in New York style before, and that she might not know what to do with it when she saw it.
“Speak a little more slowly so that the judge and court reporter—and I—can understand what you’re saying. Okay?”
“Okay, Jeff. I gotcha. No worries. We’ll keep it nice and slow and calm and gentle-like,” Perina had assured him.
Trask looked across the room to the defense table. Bernstein—a corpulent slob of a man in an ill-fitting, off-the-rack discount suit—was pulling stacks of folders out of a briefcase. His client, Victor Fontana, a capo de regime in what was left of the Genovese-Gotti crime family, stood next to Bernstein.
All that for a credibility motion? Trask asked himself as he watched Bernstein continue to shuffle the stacks of papers. Am I missing something?
“Mr. Bernstein, I understand that you are moving to suppress the search of your client’s—Mr. Fontana’s—residence. Is that correct?” Judge Hamilton asked.
“That is correct, Your Honor.”
“And the basis of your motion is that false information was intentionally provided and then used as the basis for the application for the search warrant, in violation of Franks v. Delaware?”
“Yes, Your Honor.” Bernstein started to gather some of his folders together. “I understand from conferring with some local defense counsel that the Court is fairly new to the bench, and may not be completely familiar with the applicable lahr—”
“Lahr?” Trask asked in a whisper, turning to Foote.
“He means ‘law.’ I was posted in New York for a while, like I told you. I can translate for you,” Foote said, smiling.
“I am n
ot new to the legal profession, nor am I new to the ability to read, Mr. Bernstein,” Hamilton snapped. “So, if those papers you are shuffling are just lower court interpretations of the Supreme Court’s Franks decision, you are free to write a supplemental brief. Otherwise, you can assume that this Court is familiar with the applicable legal precedents.”
“I understand, Your Honor,” Bernstein said, putting the folders back down on his table.
You really don’t have a clue, Bernstein, Trask thought. You seriously misread and offended the judge who’s going to be ruling on your motion. You’ve just taken two steps back, and we haven’t even started yet.
“If I can summarize the basis of your motion, then,” Hamilton said, “it is that you believe the postal inspector—Inspector Perina, I believe—provided false information which led the court in the Eastern District of New York to issue the warrant for the search of Mr. Fontana’s house. Correct?”
“Yes, Your Honor. And—after that unlawful search—everything that came later is the proverbial fruit of the poisonous tree.” Bernstein attempted to throw out his chest with pride while making his proclamation, an action that—given his shape—would have caused his trousers to fall to the floor had they not been secured by a pair of industrial strength suspenders.
“Mr. Trask, are you prepared to present evidence?” Hamilton asked.
“We are, Your Honor. The United States calls Postal Inspector Joseph Perina.”
Foote walked to the back of the courtroom and opened the door to one of the witness rooms. He nodded, and the massive figure of Joe Perina strode down the aisle toward the judge’s bench. Perina stopped and raised his right hand to take the oath from the clerk, then circled around to the witness stand.
Trask looked up from the counsel’s lectern and had to pause for a moment to keep from laughing. Even though the chair in the witness stand—just to Trask’s right of the judge’s bench—was set a full eighteen inches lower than the seat for Judge Hamilton, Joe Perina’s height was more than enough to offset that difference, and Judge Hamilton’s diminutive size contributed to the anomaly. It was the only time in decades of practice that Trask had seen the witness sitting with his head higher than the judge’s. Trask also noticed that the situation had not been lost on Judge Hamilton, who scowled briefly as she looked up at the witness beside her.
“State your name, please,” Trask requested.
“Joseph T. Perina. I’m a postal inspector with the United States Postal Service, and my office is in Brooklyn, New Yawok.”
Trask stole a glance at Foote, who was silently forming the words “New York” on his lips.
“Thank you, sir.”
I can’t look at Foote again. I might lose it and crack up.
“Inspector Perina, I’d like to direct your attention to the evening of the second day of this month. Did you participate in a surveillance, and then a search, of the residence of the defendant in this matter, Victor Fontana?”
“Yes, I did.”
“Please tell us first about your role in the surveillance that evening.”
“Shuwah.”
“Sure,” I think, Trask said to himself.
“We had several officers and agents out on the street, and a delivery was made by an informant to Mr. Fontana’s place of business,” Perina said. “That delivery consisted of a couple of kilos of heroin in a small, blue duffel bag, which was placed by the informant behind a dumpster at the business. Other officers on the scene radioed that they had seen Mr. Fontana pick up the duffel and take it toward his vehicle. He then drove to his house.”
“Were those other officers able to see the defendant actually put the bag into his vehicle?” Trask asked.
“They were not able to see that,” Perina answered, “which is why I was requested to confirm that the drugs had actually been taken into the house. We had arranged with our federal magistrate judge in Brooklyn—Judge DeSantis—to issue an anticipatory search warrant. We had a federal agent in the judge’s chambers. The arrangement was that if I was able to confirm that the drugs were inside the house, I was to give a signal, agents on the scene would contact our agent in chambers by radio, he would give the information to the judge, and the judge would give us a verbal authorization to search the house immediately.”
“Why was it necessary to go in immediately?” Trask asked.
It’s not really an issue in the motion, but this will help focus Judge Hamilton’s mind on the danger of the situation and the importance of upholding the search.
“Our prior operations with Mr. Fontana’s crew had included controlled buys of heroin on multiple occasions. The heroin was laced with fentanyl. We were able to connect three fatal overdoses to this conspiracy, and we didn’t want any of the heroin inside the house to hit the street.”
“Tell us about the role you played at that point.”
“I got a call from my task force supervisor, FBI Agent Hillman. He told me that I needed to put my delivery ruse into motion. We had it pre-arranged that if we couldn’t put eyes on the duffel bag going into Mr. Fontana’s cah—”
“Car,” Trask said to himself.
“—that I was to deliver a package to the front doah. Our informant had told us that I would probably see the bag or the dope on a table in the front room once the doah was opened.”
“Door.” Trask made the mental translation.
“And did you make this ruse delivery?”
“Yes. I was dressed in a mail carrier’s uniform, and I was driving a mail truck.”
I didn’t know they made those suits in size 4XXX, Trask thought.
“I walked up to the front doah with a package that was addressed to Mr. Fontana, and I rang the doahbell.”
“What was in this package?” Trask asked.
“A couple of polo shirts.”
“Had Mr. Fontana actually ordered those shirts?” Trask asked.
“No. Like I said, this was a ruse delivery.”
“Please continue.”
“I rang the doahbell and Mr. Fontana answered the doah. When he opened the inner doah, I could see a coffee table to the left of the room. On that table I could see both the duffel bag, and two kilogram-sized packages wrapped in plastic.”
“Had you seen the packages of heroin in the duffel bag earlier that evening?” Trask asked.
“Yes, they were shown to me at our rendezvous point before they were delivered by the informant to Mr. Fontana’s gas station.”
“And what happened after you saw the bag and the packages on the table?”
“I handed the bogus package to Mr. Fontana, and after he shut the doah, I gave a signal to Mr. Hillman. He gave me the thumbs up to help with the entry about thirty seconds later. I went back and rang the doahbell again. When Fontana opened the doah this time, I told him that I had forgot to ask him to sign for the package. I had a clipboard with me. He pushed the screen doah open to get the clipboard, and when he did that, I grabbed him to pull him out of the house and clear the way for the entry team, which was hiding around the corner of the house.”
“What happened when you grabbed him?”
“He kind of lunged backward. I was a little off-balance, so he pulled my head and shoulders inside the doorway.”
He weighs about a buck-sixty, Trask thought. Fontana and what football team pulled you into the ‘doahway?’ That’s where I’d attack if I was Bernstein. Wonder if that’s where we’re headed?
“What did you see that time?”
“The bag and the drugs were still on the table, and there were three other guys in the room.”
“Do you see the person who answered the door that night in the courtroom here today?”
“Yeah. Vic Fontana. Sitting there beside Mr. Bernstein. He’s wearing a dark blue suit.”
“May the record reflect a correct identification of the defendant, Your Honor?” Trask asked.
“The record will so reflect,” Judge Hamilton said.
“I have no further direct examina
tion,” Trask said, returning to his table.
“Cross examination?” Hamilton asked.
“Yes, Your Honor.”
Bernstein walked to the lectern with two folders.
One for his notes. I wonder what the other one is for? Trask thought.
“Good morning, Inspector Perina,” Bernstein began.
“Counsel,” Perina answered, his voice guarded and cool.
“We’ve met before, haven’t we?”
“We have,” Perina said.
“And that’s because your work in other cases has generated several motions similar to this one?”
“Only the ones that you’ve filed, as I recall,” Perina answered.
“Are you saying that I am the only defense counsel to ever accuse you of manipulating the facts to get where you wanted to go?”
“You’re the only one that I remember making such an accusation.”
“Mr. Bernstein, do you actually have evidence of Franks motions by other counsel involving Inspector Perina?” Judge Hamilton asked.
“Not with me, Your Honor,” Bernstein quibbled.
“Any judgments by any other courts reflecting adverse findings regarding this witness’s credibility?”
“Again, not with me.”
“Then let’s move on to the facts of this case,” Hamilton said.
“Very well,” Bernstein said.
Trask watched as Bernstein peeked inside his second folder.
It looks like he’s got photographs of something.
“Inspector, I’d like for you to describe—if you could—the front doah to Mr. Fontana’s home.”
Trask looked at Foote.
“Door,” Foote whispered.
“That’s what I thought,” Trask whispered back.
That’s got to be what the photos are about. I hope Joe remembered what we told him: beware of the fact trap. If you don’t remember something—it could be something otherwise unimportant—don’t make anything up to fill in the holes. Don’t be afraid to say, “I don’t remember.”