He flipped from one page to the other, and then back. He sat down, laid the open binder on his desk, and reached for the phone. “Have a seat.”
I was too excited to sit and listen to him talk on the phone. After pacing for a moment while he reviewed the documents, I reluctantly sat.
“Yes, sir,” he said into the phone. “This is Al Lori.”
His eyes drifted to the binder. “I’ll be filing a motion to this effect, but I wanted to bring the matter to the Honorable Judge Vincent’s attention prior to the motion being filed. I take exception to the search warrant, the fruits of the search warrant being used as evidence, and to the arrest of my client based on the evidence listed in the indictment. I’ll be filing a motion in limine to dismiss said evidence, and doubted the judge would want such a surprise to cross his desk without warning.” He chuckled. “Consider this my warning.
“It will be listed in the motion. ... No, I’ll have it to you in a matter of minutes. ... Yes. ... Immediately, if not sooner. ... That is correct. I didn’t write the rules, I’m simply forced to abide by them. ... I certainly will. Give him my best. ... Very well. ... Yes.” He looked at his watch. “Within the hour.”
He hung up the phone.
“Does this mean what I think it means?” I asked.
He fought to hide a smirk. “As we speak, it means nothing. Give me a few minutes to type this motion.”
I began to pace the floor in front of his desk. After fifteen nervous minutes of me wearing the carpet down and staring out the window, he printed a document.
“Let me fax this, and then we’ll discuss it.”
“Who uses a fax machine?”
“The judicial system,” he said with a muted laugh. “They require it, along with filing it electronically.”
He faxed the document, walked to the bookcase beside his desk, and pulled out a bottle. “Want a swallow?”
It was 10:00 a.m., but my internal clock was a disastrous mess. A drink sounded good. I gave a slight nod. “Sure.”
He poured two glasses and then slid one across his desk. “Have a seat.”
I picked up the glass, lifted it to my nose, and took a shallow breath. My mouth salivated in response. I took a sip and lowered myself into the chair. Eager to find out his thoughts on the botched date on the report, I met his gaze.
“Well, I heard your end of the conversation,” I said. “Care to explain what all of that meant?”
He grinned, took another sip of his scotch, and then lowered the glass. “Federal agents date their reports no differently than most military personnel. The numerical day, the abbreviation of the month, and then the year. It saves any guessing on where the date and the month are positioned. Their doing so in that manner is to keep what has happened here from happening. I suspect we have an agent who is new and slightly dyslexic. He listed the date as 11-10 instead of 10-11. As luck would have it, the remainder of his dates appear to be correct. He’s also dated all his reports the same—numerically. His consistency shows a pattern, and that pattern will make attacking the report in question rather easy.”
“That’s what you’re going to do? Attack the report? Attempt to get it tossed out?”
“I’m not going to attempt to do anything,” he said. “I’m going to have it and the teeth removed from evidence. The federal rules of evidence are clear. Inconsistencies on the part of federal agents aren’t looked upon lightly. There’s no doubt that they know about the date being transposed.”
“Why do you say that? They might have missed it.”
He shook his head. “I seriously doubt it.”
“Why?”
“A grand jury wouldn’t have accepted that report as evidence to support a search warrant, nor would a judge. That means the ATF provided an alternate report of some sort with the correct date to the grand jury, or to the judge. I haven’t seen such a report.” He raised his glass. “Have you?”
“No.”
“That’s because they didn’t provide it. And, they didn’t provide it because they knew if we had both reports, one with the wrong date and one with the right date, that we’d find the discrepancy for sure. They gave what they had to, and hoped we’d miss it.”
He raised his index finger, reached for the phone, and then dialed.
“Al Lori again. ... Yes, sir. You did? ... I have not, but I certainly will. ... It goes without saying, but I’ll say it anyway. If the judge is going to make a decision, I’d like to see it at his best and earliest convenience. If there will be a hearing, I would prefer that it be placed at the front of the docket. ... Very well. I’ll anxiously wait for the response.”
He hung up the phone, tapped his fingertips against his keyboard, smiled, and then looked at me. “Well, we’ve got their attention, that’s for sure.”
“They sound nervous?”
He shook his head. “The judges are pretty impartial. If the agents fucked up on their reports and falsified one to obtain a search warrant, the judge will want the evidence thrown out. The US Attorney’s office won’t, but the judge will.”
“How long until you find out?”
“A day or so.”
I took a sip of my scotch and nodded. I felt like the wind had been let out of my sails. The two-hundred-mile mad dash to his office had been done with my heart in my throat. His acknowledgment of the botched report, and his immediate filing of the motion filled me with false hope. To have to wait and see if they would consider eliminating the report was going to be nothing short of torture.
“So, for now, that’s it?”
“I’m afraid so.”
I finished my drink, set the glass on the corner of his desk, and met his gaze. “I’ll get back to work, then.”
He lowered his chin slightly. “Good work finding that.”
Originally, I was excited about it. Now, it seemed insignificant. I forced a smile. “Thanks.”
“I mean it,” he said.
Unless it was enough to free Anthony from incarceration, it really didn’t matter. I stepped to the front of his desk, reached for my binder, and extended my right hand. “Call me if you find anything out.”
He shook my hand. “You’ll be my first call.”
“I’ll hold my breath,” I said in a sarcastic tone.
I took the elevator to the parking garage, feeling as if my research was all for naught. An hour into my drive home, the phone rang.
I pressed the button on the steering wheel, answering the phone. “Well?”
“Hearing tomorrow at 10:00 a.m.”
“No shit?”
“No shit.”
“Your thoughts?”
“I think I’d hate to be the US Attorney about now.”
“Chances of actually getting him out of jail?”
He cleared his throat. “Getting results out of a motion in limine is like getting pussy on a prom date. It’s a roll of the dice.”
“Fifty-fifty?”
“Roughly.”
I was excited for the hearing nonetheless, but decided telling Terra anything about the proceeding wouldn’t be wise. “I guess we’ll find out in the morning.”
“I wouldn’t celebrate,” he said. “Not yet.”
“Understood,” I said.
He didn’t have to worry about me celebrating.
I was going to be too busy praying.
Chapter Twelve
Terra
The wedding was fast approaching, and there were decisions that had to be made. Doing so, however, wasn’t easy.
After agreeing to meet my mother for lunch, we decided to have a cup of coffee at her home instead. Eating was something that had become infrequent for us both, and coffee was something we were both still able to enjoy.
I lifted my cup of espr
esso from the machine, stirred in a little sugar, and then sat down. “I’ve decided what I want to do.”
Seated across from me with her hands wrapped around her coffee cup, she looked up. Her eyes were tired, and her face was expressionless.
She looked like the rest of the family. We were all exhausted, mentally and emotionally drained, and incapable of expressing any emotion other than sadness.
“About the wedding?”
I nodded. “I think it’s best that we...” I took a sip of the espresso, hoping a little courage came with it. “I think we need to proceed with it. If we don’t, we’ll never reach a point that we’re comfortable doing it. With the trial, appeals, hearings, it could go on for years and years.”
She began to cry.
At any other time in my life, if I had seen my mother cry, I would have jumped from my seat and attempted to comfort her. Seeing her cry now was commonplace, and I knew in a moment it would pass.
She wiped the tears across her cheek with her index fingers and then shook her head. “I don’t like... I don’t like it. But, I’m afraid you’re right. Years will pass. We can keep the date that you’ve chosen, and...”
She lowered her head. In a few seconds the crying turned into a light sob. Incapable of crying any more than I already had before leaving my house, I stood, walked to her side, and knelt beside her.
I reached for her hand, pulled it away from her cheek, and held it in mine. Seeing my mother in such a state wasn’t easy. She’d always been the one person who remained constant in my life. My father was either emotionless or angry, but never expressed sadness. My mother, on the other hand, was always joyful.
Her outlook on matters, regardless of what life presented her, was optimistic. She saw the bright side of everything, always.
Her failure to present other options for my wedding meant there weren’t any.
She looked up. “We’ll keep the date and pray for a miracle.”
Slowly, the reality of it all began to seep through my veins like a sickness. Michael and I would be married amidst family and friends, all of whom would feel no differently than my mother and I were now feeling.
The tone of the wedding would be one of sadness, and there would be nothing we could do to prevent it.
My father would sit in prison during the event, knowing what we were doing, but incapable of enjoying it even in the slightest.
Along with my mother’s, my hand began to tremble.
I bit against my lower lip. After a moment, my legs began to shake.
My mother was right. I needed to pray.
I closed my eyes and lowered my head.
Dear Heart of Jesus: In the past, I have asked for many favors. This time, I ask You this very special one.
I let out a sigh.
Help me find a way to find joy in this time of terrible sorrow. And, if you can find it in Your heart, allow that joy to extend to the day that I am so fortunate to become Michael’s wife.
Only if You approve of this union, and only if it is Your will.
Take what I ask You, dear Jesus, and place it within Your own broken heart, where Your Father sees it. Then, in Your merciful eyes, it will become Your favor, not mine.
Amen.
I opened my eyes.
“We need to pray for a miracle,” my mother said.
I realized I was still holding her hand. I turned toward her, nodded, and closed my eyes.
Together, in silence, we prayed for a miracle.
Chapter Thirteen
Michael
I sat on one side of Anthony and Al sat on the other. I felt slight pride for finding the discrepancy in the dates of the documents, but had my doubts that the hearing would provide anything in Anthony’s favor.
Expecting the judge to order a written clarification, or the presentation of another report, I refused to allow myself to fill with anything but a little hope.
I glanced to my left.
Anthony’s deadpan stare toward the door of the judge’s chamber let me know his feelings mirrored mine.
The bailiff’s voice brought me out of the slight trance.
“All rise!”
We stood.
The judge entered, walked to his seat, and sat down.
“You may be seated.”
In unison, we sat.
The judge lifted a document, studied it, and then looked up. “In the matter of the United States versus Agrioli, defense has presented a motion in limine, asking that several items of evidence presented during discovery be excluded. Furthermore, if said evidence is excluded, defense further asks that the search warrant be declared wrongfully filed for, and subsequently, that the charges against the defendant be dropped, as there is insufficient evidence to proceed with trial. First, I will say this...”
He fixed his eyes on Al. “The decision to exclude the evidence has been brought before the court in the form of a motion, to which the court is bound to respond. Dropping the charges is another matter altogether, a decision that will be made based on the evidence to support proceeding with a trial, all of which may or may not have been presented. My decision will come after this hearing, and will depend on the outcome of this proceeding. Is this understood?”
Al stood. “Yes, Your Honor.”
The judge looked at the prosecutor.
The prosecutor stood. “Yes, Your Honor.”
“Furthermore, the United States is not on trial, nor is the prosecutor’s office. The defendant is. I will not hear arguments regarding this motion, nor will I allow the questioning of witnesses. In consideration of the motion, I have reviewed the evidence in question, and I have spent the last eight hours reviewing other evidence in this case, all of which has allowed me to compile the following.”
He alternated glances between the prosecutor and Al. “Agent Black’s reports are clearly marked by his signature, and with a date. The dates on his daily reports match the dates on his Confidential Informant statements, with exception to the date in question. I have found no daily report from agent Black for the day, or for the week in question.”
He looked at the prosecutor. “Does such a report exist?”
The prosecutor glanced to his right, whispered something, and then stood. “Your Honor, there is a report signed by agent Whistler for the week in question, but—”
The judge cleared his throat. “Is there a report signed by agent Black? Yes, or no?”
“No, Your Honor.”
The judge nodded, lifted another document, and then peered over the top of it. “What document was used in obtaining the search warrant?”
“Agent Whistler’s statement, Your Honor.”
The judge sorted through the paperwork on his desk, lifted a piece of paper, and studied it.
“Signed 10 October, 2016?” he asked.
“Yes, Your Honor.”
“I have presided on trials presented by the prosecutor’s office long enough to know, but for the record,” the judge said, “is the agent who conducted the interview with the informant required to file the report?”
“Yes, Your Honor.”
“Yet, in this case, there are two reports.” He lifted one sheet of paper in each hand and shook them. “One with the correct date, and one with the incorrect date. Is that an accurate statement?”
“Yes, Your Honor.”
“And, the report with the correct date was used to obtain the search warrant?”
“Yes, Your Honor.”
“And, it was filled out contrary to your office’s policy and contrary to the policies of the ATF?”
The prosecutor let out an audible sigh. “Yes, Your Honor.”
“Was a copy of this report provided to defense counsel’s office?”
The room fell silen
t.
“Was a copy of the report dated 10 October, and signed by agent Whistler, provided to defense counsel?” the judge asked in a stern tone.
“No, Your Honor.”
The judge nodded. “For the record, when the report was signed by agent Whistler isn’t relevant in my decision-making. One would assume, and I certainly have, that the report was signed and dated at a date later than the date listed on the report. I take exception that the policies set forth by the bureau, and by your office, were not followed in the preparation of this report. I find the fact that it was presented to the court for consideration of the search warrant to be appalling. Procedures, counsel, are in place not only to preserve evidence, but to protect the constitutional rights of the defendant. I have one remaining question. Was the report filed by agent Black presented, at any time, to the court in support of the search warrant?”
“No, Your Honor.”
The judge’s jaw clenched. “Was agent Whistler present during the interview in question? The interview dated 10 October?”
“No, Your Honor.”
The judge lowered his chin. “The report used, by your own admission, was falsified?”
The prosecutor cleared his throat. “Yes, Your Honor.”
The judge looked at Al. “In response to item one in your motion, I decide in favor of the defense, and now exclude the report in question from evidence. I further exclude the report that was not provided to defense, but signed by agent Whistler on 10 October, 2016.”
My heart rose into my throat. I realized there was still a mountain of evidence to hurdle, but if I understood correctly, a huge piece of it was just eliminated.
He shifted his focus to the prosecutor. “This now brings me to the search warrant, which is item three as listed in the motion. It saddens me, counsel, that your office appears to have no regard for the very constitution that this court is bound to uphold and protect. It further saddens me to advise you, but provides slight satisfaction to advise defense counsel, that I have no alternative but to find that the search warrant was wrongfully obtained, and therefore find that any evidence obtained in said search warrant as being inadmissible in court.”
The Good Boss Page 5