“Basically, I was going to put a thousand dollars on the budget toward pills. Then Peter denied that, said he would only pay five hundred dollars, half of it,” Caruso said.
“When you wrote out your budget, did the budget explicitly say ‘Ecstasy Punch’ on it?” Friedberg asked.
“No.”
“What did it say?”
“‘Special promotion,’ ‘goodies,’ ‘birthday parties,’ ‘favors.’ We used a number of different things.”
Defense attorney Brafman suggested that Gatien thought the club-goers were lining up for Gatorade, because the punch was sometimes served from Gatorade jars—and what else would hot, sweaty kids who had been dancing all night want but free Gatorade?
Friedberg showed the jury party flyers, marked with the initials “PG,” which made reference to the drugs that would be available that night—all the E‘s, K‘s and X‘s in the flyers were set off in distinctive colors and fonts.
Caruso claimed that Gatien had had concerns about the brazen-ness of the ramped-up dealing in the clubs.
“[He] said, ‘Hey, you know, you guys, you are going to get me locked up, you keep printing stuff like this on the invites. You can't do things like that,’” Caruso said.
“Did you continue to print them?”
“Yes.”
“Did they continue to go out?”
“Yes.”
“Did you pay for these invitations personally?”
“No.”
“Who paid for them?”
“The club did.”
Caruso claimed that Gatien knew about the house dealers he was bringing into the clubs.
“I had come into the office one day and basically Peter said to me, ‘Do you have a crew of guys in here selling drugs for you in the club, in the Limelight?’ I said, ‘Yes, I do.’ “
“What happened?” Friedberg asked.
“He then said to me, ‘Well, you know, they're boasting and saying, “Hey, X, X, X, coke!” in the hallways. They can't be boasting out loud and yelling these things in the hallways to make their sales.’ He said, ‘Keep them, calm them down, and make sure they keep it to that crew, keep it to the crew of those guys.’ “
Caruso's testimony seemed to bolster the government's claim that Gatien was focused on the money.
“There was a lot of competition with other clubs,” Caruso testified. “Peter was talking about, ‘Can you get some of your guys, Paul or somebody, to go up to Tavern on the Green, any of these clubs, and sort of sabotage their night,’ whether they would beat the walls, clog the toilets so they flood out, so that people aren't comfortable and want to leave.
“And then within that conversation, I believe it was Michael Alig that came into the office and the subject of Ecstasy came up, how big our supply was and how what a great quality of drug that we had, and Peter stated, ‘Can you make sure that Rob [Gordon] doesn't work any other clubs, that he only attends Limelight and works at this club and sells that X at this club?’ and I said, ‘That's no problem, I'll just tell Rob.’ “
Rob Gordon was called to the stand as part of his cooperation deal with the government. The former drug dealer known by the club nickname “Stacy” testified that he had first met Gatien after Caruso had him deliver a pepper grinder (to pulverize rock cocaine) to his room at the Four Seasons.
Gordon told jurors he and Gatien had become friendly after that, and he described the Christmas gifts he'd bought the club owner: a $200 pair of Jean-Paul Gaultier leather gloves one year, a silver box containing ten Ecstasy hits the next. Gordon said he once watched Gatien pick up the phone to call a fire department contact to get a rival club raided. He described writing up “86 lists” for Gatien—naming rogue dealers who were impinging on the house dealers’ business—and then watching security run around the club on Gatien's command, kicking out everyone on the 86 list.
Gordon testified that he and Gatien bonded over hockey, and he gave Gatien a special code, 88, to use when paging him. It was the number of Gordon's favorite hockey player, Eric Lindros, of the Philadelphia Flyers.
Former club promoter Baby Joe Uzzardi told the jury that he had been drug-free until he began working at Tunnel. Then he'd begun taking massive doses of Ecstasy and LSD and heeding club director Steve Lewis's advice that “good music and good drugs” would make his parties more successful.
Uzzardi testified that in the summer of 1995, he told Gatien that they needed to organize the drug dealing because it was starting to get out of control. Uzzardi claimed Gatien replied, “I don't want to hear about drugs,” and walked away.
Six different house dealers would testify to their experiences working for the clubs. Gatien was painted as the controller and financier of the drug dealing by virtue of the fact that he controlled the club budgets. However, they also testified that Gatien never spoke about drugs on the phone, collected money for drugs, or did drugs in his clubs. The government argued that it was a calculated self-protective measure on Gatien's part.
Clubland author Frank Owen sat through the monthlong trial listening to days of tedious evidence about the club layout and secret drug messages in the party invitations. But like many reporters, he was waiting for some kind of startling admission or “freak show” fireworks.
“As the prosecution droned on I kept thinking ‘Where's the beef? Where's the substance, the smoking gun, the missing part of the puzzle that will put Peter Gatien in prison for the rest of his life?’ The odd thing was it should have been an open-and-shut case for the government,” Owen wrote.
“Plus, Gatien's defense—that he was so screwed up on cocaine most of the time that he didn't know what was going on at his clubs—seemed less than compelling, even if it was true.”
Gagne and Germanowski had convinced about thirty suspects to plead guilty for their roles in the drug-dealing conspiracy and to cooperate in the case against Gatien. It should have been a slam dunk. But they had underestimated the skill of Gatien's defense attorney—a five-foot-six-inch forty-nine-year-old bulldog in designer suits.
Defense attorney Benjamin Brafman had started out in 1976 as an assistant DA in the Rackets Bureau, handling political corruption, white-collar, and organized-crime cases. He lost one case in four years, and decided to hang out his own shingle in 1980. He quickly built a name for himself winning acquittals for members of the Gam-bino crime family—the kind of defendants he used to prosecute—and his former bosses at the DA's office were irked to see their protégé in a front-page photo in the New York Post in 1985, paying his respects at the funeral of Paul Castellano, the mob boss gunned down in front of the Sparks steakhouse.
In 1991, Brafman had represented Salvatore “Sammy the Bull” Gravano, the underboss who teamed with John Gotti to kill Castellano, securing Gotti's position as the new don. But when Gravano decided to cooperate with the feds against Gotti, Brafman distanced himself from his client-turned-rat, making sure to state in open court that he had nothing to do with Gravano's decision. In 1997, as Brafman was preparing for Gatien's trial, New York magazine named him the number one criminal defense attorney in the state.
On the opposite side of the courtroom, federal prosecutor Eric Friedberg was going on nine years with the U.S. attorney's office and was known for doing clean cases, no tricks up his sleeve. It infuriated Gagne and Germanowski. Every day after court they would meet to recap and discuss the next day's witnesses. Sometimes Brafman would call Friedberg and make a case for why the prosecution shouldn't call certain witnesses—including Michael Alig and Sean Bradley. He promised to vigorously cross-examine witnesses about their troubled pasts and to bring up the myriad allegations of government wrongdoing. Gagne and Germanowski would listen quietly as Brafman planted the seeds of doubt.
“Well, he does have a point…,” Friedberg would say, dropping another witness from the list.
The agents urged Friedberg to push back.
“Look, Brafman's a dirty street fighter,” Gagne argued. “If he gets the chance, he'll kick you i
n the balls and run away. He's fighting like he's in an alley, you're fighting like we're in an Olympic boxing match, and we're gonna get clobbered.”
“No,” Friedberg would say. “We're the U.S. government. People expect more from us.”
Friedberg had reason for his apprehensiveness. Brafman had brilliantly maneuvered every angle behind the scenes in the lead-up to trial. In 1997, Brafman filed court papers accusing Gagne and Germanowski of fabricating evidence. In his filing was a ten-page “Dear Judge” letter from Sean Bradley—the original informant who was arrested for an illegal Ecstasy buy. After being sent to jail, Bradley switched sides and claimed the agents had coerced his statements, taken drugs, and given him a secret recipe to beat his own drug urine test.
“Bradley accused us of having sex with his girlfriend. His attorney basically called me a Gestapo agent, a homophobe, and gay-basher,” Germanowski later said. “I tried to help the kid as much as I could. Until he screwed me over. Then he can burn in hell like everybody else.”
Bradley ultimately refused to testify to his allegations for fear of perjury charges.
Sean Kirkham, the con man with the fake tapes, also came back to throw another barb at the feds: Kirkham claimed he and prosecutor Friedberg had been engaged in a secret sexual relationship. Brafman wrote up Kirkham's salacious allegations in a pretrial motion requesting that the judge force the government to turn over Kirkham's confidential informant file.
“It is disheartening,” Friedberg wrote in his legal response, “that you have used this meritless request as a way to publicly air what I am sure you know are false and potentially libelous allegations.”
An investigation by the DOJ's Office of Professional Responsibility found Kirkham's claims to be false, again.
That was all just a preview. When they got to trial, Brafman was in full force, masterfully drawing out the criminal pasts of the prosecution's witnesses and marring their credibility during forceful cross-examinations. Michael Caruso, who had been stoic through nearly four days of testimony, broke down in tears when Brafman suggested he had murdered his roommate Damon Burrett.
In March 1993, Caruso had come home to find Burrett shot in the head in their loft apartment. Burrett had tried to commit suicide before, and police believed he had succeeded this time. Still, Caruso's shifty past played into rumors that he was somehow responsible for Burrett's death.
Brafman was a deft showman who injected Law & Order—style gotchas into the proceedings, and Rob Gordon fell into the same trap when he was cross-examined about his history of credit card theft and identity fraud.
“Now, the cloned phone—the fraud with the phone—same thing, right? You talk and talk and someone else pays.”
“Yes,” Gordon said.
“That was sort of your way of life? You commit the crime, and someone else pays?”
“Objection!” the prosecutor shouted. But the jury heard Brafman's message loud and clear: the bad guy was the one on the witness stand, not the one at the defense table.
Gagne sat at the prosecution table measuring the increasing fatigue in the jurors’ faces and watching the case slip away from them. Every witness told the same story: the drug dealing in Gatien's clubs was open, obvious, and encouraged by upper management. But on cross-examination, their criminal misdeeds were easy fodder for Brafman. These witnesses had lied in the past, went the argument, so there was no reason to believe them now. Gagne wanted to scream: Of course these witnesses had criminal pasts! Who employs Boy Scouts to be drug dealers?
“We lost them,” he said to Germanowski. “They're not even listening anymore. It's like they're thinking to themselves, ‘Oh, shit, did I turn off the coffeepot this morning? God, I gotta pick my daughter up at four’—I mean, this is what they're thinking about.”
At the same time, Friedberg was starting to worry about putting the agents on the stand. Brafman was threatening to trot out the misconduct affidavits. It wasn't going to look good.
“Are you kidding?” Gagne said. “The affidavits are crap. And we've got the tape of Alig's mother—you could even bring her in as a rebuttal witness.
“Look, we're gonna take some dings, but that's it,” Gagne said. “You get us talking about how we interviewed all these guys for two years and independently they all say the same story—you can't preclude us from doing this.”
Germanowski tried to stay positive, convincing Friedberg that they could bring it all back around once they got a chance to tell their side.
One evening, as the two attorneys were having a typical end-of-day call about the following day's witnesses and the agents were silently listening on speakerphone, Brafman made an unusual request.
If you rest right now and don't call your agents, Brafman told Friedberg, then I won't put on a defense. And I won't have to dirty up your agents with those misconduct allegations.
Oh, my God. He's really going to do this, Gagne thought.
Friedberg asked Brafman for his personal guarantee that in his closing arguments he would not say anything negative about the DEA agents.
Germanowski was furiously writing on sticky notes:
Mistake.
Mistake.
Mistake.
Brafman said he'd give it to him in a stipulation in writing. They struck a deal. (Brafman would neither confirm nor deny the characterization of their conversation. Eric Friedberg did not respond to repeated attempts for comment.)
Up until that point, whenever Brafman would call to bully their AUSA, Gagne would bite his tongue and leave the room. But now, he was so worn down, he felt like he was floating through a bad dream. The fire left him.
The government rested its case without a word from Gagne, Ger-manowski, or Flaherty. Brafman kept his promise and did not call a single witness or put on a defense. It was an incredibly risky move.
Eric Friedberg delivered his closing argument with a workmanlike pitch. “For every person that came in to get a pill of Ecstasy thrown in their mouth by Michael Caruso or a glass of Ecstasy punch … for every person that came in and bought a bag of cocaine … a little bump of ketamine or Rohypnol at the ‘Emergency Room’ party, handed out to them for free … what did Peter Gatien get? He got twenty dollars at the door for every person that came in,” Friedberg told the jurors.
“Having made millions of dollars off all these kids that are coming in and buying drugs—not directly through the drug sales, but through the gate, through the bar—now having made that money, Peter Gatien wants to walk away from this and say, ‘I don't know about this. I didn't have anything to do with it. What they were doing they were doing despite management's best efforts,’ “ Friedberg said. “This is just absolutely not true.”
As Brafman began his closing, he told the jury he was “mad as hell,” sitting there for the past three and a half hours listening to Friedberg “try and pull a fast one” on the jury. He penned giant X's over the faces of the government's witnesses on their Velcro board, slaughtering their credibility one by one: “involved in suicide,” “drug dealer,” “armed robbery.”
He asked the jurors to show “courage and integrity.”
“We live in a time when everything is driven by the media: by television, by the movies. Everything is a problem. Everything is a concern. There is a concern about drugs. There is a concern about regulating them, whether they should be legalized or not. That's a debate we can have until the cows come home. That's not what this trial is about. It's not a referendum. Don't let the current that's out there affect your decision,” Brafman pleaded with jurors. “I'm asking you to help me because you know and I know, and you heard the testimony and I heard the testimony. There isn't a juror here who I believe honestly can go home tonight and say, ‘Brafman is wrong.’ “
On February 11, 1998, after seven hours of deliberations, the jury reached a verdict: not guilty.
“In my heart, I felt I couldn't convict him on the evidence that was brought out,” one juror, a sixty-two-year-old tractor-trailer driver, told th
e Daily News. “I really didn't get anything out of the government witnesses. I didn't think their testimony was credible.”
When the judge adjourned and left the courtroom, dozens of Club Kids in the gallery, many who worked for Gatien, jumped out of their seats, overcome with joy, and danced in the aisles as they cried and hugged one another.
The prosecutors wanted to head out the back door of the courthouse, but the agents insisted on walking out the front.
“I got nothing to hang my head about,” Germanowski said.
The agents passed Gatien and Brafman on their way out, past a horde of reporters, brandishing notebooks, microphones, and TV cameras.
“They went out for me any way they could,” Gatien said. “This was an evil, mean-spirited prosecution. Right now, I'm just grateful to God. I want to go to church.”
Brafman called the verdict a “categorical rejection” of the prosecution's case and the “sweetest victory” of his career.
“It was crystal clear to us that Peter Gatien knowingly allowed the dealing to go on and profited from it,” Flaherty would later say about the case. “But the jury just didn't see it. I'd like to bring the jury to the clubs.”
The bosses at DEA were supportive of the agents despite the loss—after all, they had succeeded in bringing attention to a class of drugs that specifically targeted youth and had previously been ignored by DEA and the press—the so-called club drugs Ecstasy, Rohypnol, GHB, and ketamine. More Ecstasy investigation cases were being opened as a result, and Gagne and Germanowski had become the resident experts, getting calls from across the country from reporters and drug cops who wanted to understand MDMA.
After the Gatien trial, Gagne returned to his cubicle at Intel, back to analysis and paper pushing and lending desk support to the street agents who were doing what he loved and missed the most—chasing bad guys. It was a bitter end to a case that had taken nearly three years of his life. He had fought so long and so hard that the verdict felt like a body blow—an affront to his sense of right and wrong. He would stop trying to make sense of it. Just close the door. Try to forget.
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