by Bryan Denson
Knight noted that Nathan and his Russian handler had talked about the possibility that Russia would fund his education in Mexico, and that the Russians could provide him safe harbor in any of their diplomatic stations.
“Let me ask you about that, Mr. Knight,” Brown said. “The evidence is that the nearest consulate is in San Francisco, and there might be some kind of diplomatic mission, or something to that effect—said Agent Cooney—in Seattle. Yes?”
“Yes.”
“So there’s not any place of diplomatic refuge in the district of Oregon. Is that fair?”
“Not a location, no.”
Brown asked if fitting Nathan with a GPS ankle bracelet, and tracking his movements inside Oregon, would prevent him from heading for a Russian diplomatic establishment in California or Washington, which would take hours by car. If he’s in Oregon, she said, the company monitoring his movements—Satellite Tracking of People—would know if he cut the bracelet off or was on the move.
“I’m assuming,” Brown said, “that the defendant would have to physically get into the boundaries of the Russian sovereign space—that is, the consulate or some other physical space—in order to be beyond the jurisdiction of the United States government while still on U.S. soil?”
“Yes,” Knight said.
“If we can keep him in the District of Oregon, there isn’t any way the Russian Federation or some other foreign government can take him from us, can they?”
“Not if he’s here they can’t.”
Knight reiterated his point that by all appearances, Nathan was an upstanding citizen, going to school, keeping in touch with his family, but that in fact, he’d been traveling the world to meet Russian spies.
“The defendant effectively led two different lives,” he said, “and is now asking the court to be placed back in the same environment where he was, with essentially the same support network that he lied to repeatedly. . . . This is someone without a criminal history, without contact with the system, who now faces a series of offenses with an aggregate maximum sentence of one hundred years. . . . It’s the government’s theory—and laid out quite explicitly in the defendant’s own statement—that he was receiving money, at the very least, for his father’s prior espionage activities, and that the Russian government was now taking care of the family and providing them money.”
Price got one last chance to make the case for Nathan’s freedom.
He told the court that Nathan didn’t flee after learning he might be charged with felony crimes, remained optimistic, assured his family everything would work out, and even considered applying for a VA loan to buy a house in Corvallis so he could transfer from Lane Community College to Oregon State. Price said Nathan was ashamed of himself for putting his family under FBI scrutiny, and that after agents questioned Laurie, she called and chewed him out. What did Nathan do? He wept throughout the call, Price said. Nathan was dejected to learn the FBI had seized Jeremi’s bank account and that his actions had cost his brother the chance to become an officer. And, Price added, the very idea that the Russians would plot an escape for Nathan, who knew nothing of any value to them, was beyond speculation.
“It is,” he said, “fantasy.”
Judge Brown thanked the lawyers for their arguments.
“I want to consider all of the matter you’ve submitted,” she said. “I can’t make a decision right now.”
Deputy marshals cuffed Nathan and handed him over to jailers. It would take Brown a week to sort through the court papers, listen to the wiretapped calls, and weigh in on whether Nathan was safe to release. Nathan learned his fate in jail, by way of a phone call. His defense team gathered around a speakerphone in their downtown office to tell him the news. Brown was cutting him free to prepare for trial.
On April 10, jailers transferred Nathan downtown, where he processed out, collected his wallet, and walked across the street with a court officer to be fitted with a GPS ankle bracelet. Brown ordered that Nathan spend his days at work or in college classes, or a combination of both. He had to spend his nights at the home of his cousin Destiny Fargher, who lived in the lower Willamette Valley with her husband. Destiny was the daughter of Jim’s sister, Tammie. Brown permitted Nathan to meet with his legal team, but he was not to apply for a new passport or contact his dad by any means.
Nathan’s defense team mobbed him when he walked into their fifteenth-floor office later that day wearing his ankle monitor. Kunkel asked him what he might like to eat for his first meal outside of jail. Nathan thought about asking for sushi, but he didn’t want to put them out. He asked for a Big Mac, French fries and a Coke. Kunkel brought him the meal, supersizing it with a Coke big enough to drown a horse.
A brutal heat wave hit the Willamette Valley that summer as Nathan mulled his options. He could take his case to trial, but that felt dishonest. He knew he was guilty of acting as a foreign agent and laundering the proceeds as part of a conspiracy with his dad. Another option was to authorize his lawyers to cut a plea deal on his behalf, which would save the government the expense of putting on a trial; they’d go easier on him, with a reduced prison term. The money-laundering charges each carried up to twenty years’ imprisonment. But federal sentencing guidelines favored Nathan, because he had no criminal record and his take from the Russians—$47,000—scarcely put him in league with the likes of Bernie Madoff, the billionaire king of the Ponzi scheme. Price and Needham calculated that Nathan faced roughly five years in prison. But government prosecutors would surely ask for more.
Nathan agonized over his fate, and his dad’s. Jim’s lawyer was showing no sign of throwing in the towel. In fact, Kauffman filed motion after motion to get the judge to dismiss evidence gathered by the FBI’s surveillance operations and force the government to hand over classified materials. Nathan didn’t know what to do, and he was forbidden from getting advice from members of his family, since they were likely to be called as witnesses.
Nathan’s legal team privately sized him up. He kept telling them how much he loved his dad, but they saw signs he was beginning to second-guess the old man’s motivations. They tried to help Nathan understand the seriousness of the crimes he and Jim had committed. Price and Needham eventually presented Nathan with his best option: If he was willing to cooperate with government prosecutors and the FBI, they told him, he could potentially cut a much better deal for himself. But he would have to help the government build its case against his dad.
Nathan wondered if he was hearing them right. His lawyers wanted him to save himself by betraying his own father to the very government the man accused of ruining his life? Nathan imagined how it might feel to sit in the witness box, day after day, delivering a courtroom crucifixion of his dad.
Facing this dilemma, he often hiked Mount Pisgah, a peak rising more than a thousand feet off the floor of the Willamette Valley. After seventy-two days in cages, he enjoyed the pure movement of trudging up the winding trail to the top, barrel chest heaving, to survey the southern end of the valley. Time after time he hiked the mountain looking for answers. He stood on its crown, named after the summit above Jericho and the Dead Sea, where God showed Moses the Promised Land on which he never set foot. Nathan’s Promised Land lay before him. He saw fields, farm country, and freedom. He tried not to think about what it would be like to leave this place for prison.
By midsummer, he had made up his mind.
On August 4, Nathan and his lawyers sat down in a conference room in the U.S. Attorney’s Office with the government prosecutors who would try him. They were joined by FBI agents Garth, Cooney, and Jensen. Nathan began by telling the agents he had lied about not reading his father’s messages to the Russians. He admitted he had read a couple of them. It had all seemed such a romantic notion, he said. The travels. Russian spies. Money. Now he wanted to make things right.
The government refers to such meetings as proffer sessions. Nathan was proffering th
e truth to barter for a shot at freedom. His lawyers privately explained to him that the prosecutors were now on his side and that he should think of them as the guns and he as their ammo. Their target was Jim. It was during these proffers that Holsinger and Knight got a better sense of Nathan. All they knew about him before was what they heard on wiretaps or surveillance videos. As they talked to him, he seemed to be a very different animal from his dad’s globe-trotting asset. Polite. Helpful. Apologetic. He answered every question they asked.
There was no going back now. The next time Nathan saw his father would be in court. The thought of testifying against his dad made him gut-sick with guilt. All along, he hoped Jim would plead guilty in exchange for a lesser prison sentence. But he knew how his dad felt about the government. The old man had rolled over once, copped the plea; only Jim knew how far he was willing to go this time to fight his criminal charges. Meanwhile, Nathan prayed about his decision nearly every night, asking God for answers.
On August 27, 2009, Nathan took a seat at the defense table in Judge Brown’s courtroom. He wore his only suit, the black one from his first meeting with the Russians in San Francisco. Under one of his pant legs, Nathan wore a GPS ankle monitor.
It was a little after 2 p.m. when Nathan stood, raised his right hand, and promised to tell the truth. The law required Brown to make certain he understood every right he was about to give up by pleading guilty to charges that he conspired with his dad to serve as an agent of a foreign government and launder the proceeds. She wanted him to know that if she found him guilty, he couldn’t vote, hold public office, or keep a gun. She explained that although he signed a plea agreement with the government a few days back, his sentence would ultimately be up to her.
Nathan nodded.
“Do you understand?” she asked.
“Yes I do, your honor.”
She also pointed out that he was forfeiting any claim to the $9,500 the FBI seized from his Bible and wanted to know if he understood.
“Yes, your honor.”
“Has anyone put any pressure on you to plead guilty when you do not want to?” Brown asked.
“No, your honor.”
“Have you considered what it might mean to you if in fact you are called to testify in open court in a proceeding against your father?”
“Very much so, your honor.”
Nathan had spent five months imagining just such a nightmare. The thought of it sometimes left him physically ill. He now understood his dad had put them both at risk, and that they had broken the law together in what Nathan came to regard as a poorly executed plan that brought additional shame to their family. Nathan loved his dad and wished him no malice. He prayed the old man would understand his decision.
Brown then asked Nathan if he understood that his plea agreement obligated him to testify against his dad, should he go to trial, and asked whether he was willing to do that.
“Yes, I am, your honor.”
Brown found Nathan guilty. She would sentence him after Jim’s trial to make certain he made good on his pledge to cooperate with the government.
Nathan left the courtroom feeling like Judas.
Sheridan, Oregon, early 2010
Jim seethed in solitary confinement. He had given six years to the Army, sixteen to the CIA, and thirteen to the U.S. Bureau of Prisons—more than half his life. He felt the full weight of his government’s comeuppance from the bowels of solitary. His keepers held him alone twenty-three hours a day in this concrete bunker. They fed him through a slot in a steel door, dressed him in disciplinary orange, and provided him a stubby toothbrush too short to turn into a shank. On weekdays, they let him out of his cell into an outdoor recreation cage for sixty minutes to catch some rays, lay eyeballs on other humans, and walk laps. The cage, made of Cyclone fence, looked like an outsized dog run.
The first few months of 2010 were sometimes bitterly cold. Jim paced in his cell to stay warm; at night he stuffed his jumpsuit between two cotton blankets, tucking in like a mummy. It was difficult to get up in the mornings, the cold showers brutal. Jim looked hard in those days. He had shaved off his beard and instructed his prison barbers to cut his hair high and tight, Jarhead-style. He took out his frustrations in pull-ups, chin-ups, and push-ups. He heard pops and cracks in his elbows and shoulders. But his spirits were good.
One day after working out in early February 2010, one of Jim’s favorite corrections officers, a former Marine, tapped on his steel door to check on him. Jim got up and walked over to the door. There, as he described it in a letter to Nick and Betty, he told the CO all the things he’d planned for that day. He would drive over to the coast for clam chowder, then down to Eugene to see his family, and then up to Corvallis to have coffee with Nathan between classes. Then he’d drive to Star’s new apartment in Beaverton for pizza.
“He laughed and moved off,” Jim wrote, “before I could ask to borrow his car.”
He’d been locked up in one cage or another so long he could only vaguely recall what it felt like to be free.
On March 12, 2010, Sam Kauffman drove out to Sheridan for a legal visit, which got Jim out of his cell long enough to hear the latest developments in his case. Kauffman had filed motions for disclosure of evidence, and government prosecutors had already turned over roughly twelve thousand pages—much of it copies of Jim’s own correspondence. The haul included a pair of letters Jim sent to the CIA after 9/11 in which he offered his expertise to combat al-Qaeda. Jim’s defense team also got a pile of FBI investigative reports, known as 302s, which summarized interviews with Jim’s family and fellow inmates, plus Nathan’s associates. Now Kauffman waged war with prosecutors over the release of secrets the U.S. government didn’t want to disclose.
National security cases such as Jim’s force federal judges into procedural thickets. They must weigh defendants’ constitutional rights to properly defend themselves and the government’s need to protect its investigative methods and sources. The FBI does not part easily with classified files, and its lawyers zealously guard the identity of assets—including the Russian mole whose betrayals in the 1990s helped put Jim in the FBI’s crosshairs.
Kauffman had learned that the FBI shot a video of Nathan talking to his dad before he flew to Cyprus. He wrote in court papers that the Foreign Intelligence Surveillance Court’s order that permitted the videotaping violated Jim’s Fourth Amendment protections against unlawfully gathered evidence. Kauffman wasn’t the first lawyer to challenge the constitutionality of the court’s secret surveillance orders. But no lawyer had ever won that battle. And neither would he.
The best footage the FBI gathered in the visiting room wasn’t obtained under FISA. It was captured by a wall-mounted surveillance camera operated by the prison. Nathan is sitting next to his dad in a blue shirt, the old man leaning in, conspiratorially, holding his hand in front of his mouth to prevent being overheard. A man with rakish hair streaked with gray sits in a seat directly across from the Nicholsons—the undercover FBI agent who had befriended Nathan on the way through the metal detectors. The agent is sitting with an inmate, who served as a prop as the FBI man tried in vain to overhear the Nicholsons’ conversation. A camera mounted on the agent’s midsection captured audio and video, but it was of poor quality. The FBI never got close enough to capture Jim or Nathan’s voices in the visiting room.
The prosecution’s better footage was shot in Nicosia, and included the dramatic scene of Nathan running his recognition dialogue with the Russian he knew as George outside the T.G.I. Friday’s. Kauffman sought those tapes, too, along with government reports chronicling surveillance operations in Cyprus.
Holsinger and Knight fought against such disclosure. They filed a response that asked Judge Brown to bar Kauffman from questioning witnesses about the names, job descriptions, or employers of those running the surveillance. They didn’t want anyone knowing FBI teams were active on foreign soil, with a little
help from their friends in the CIA. The United States and Russian Federation both enjoy cozy relations with Cyprus. Their embassies sit ninety yards apart, an eight-minute drive from T.G.I. Friday’s.
Jim didn’t attend motion hearings in his case, apparently preferring to stay in the hole rather than be hauled fifty miles into Portland in chains. He had no TV or radio, just magazines, letters, paperback books, and a whole lot of time on his hands. He spent many hours scratching out letters with golf pencils (the only writing implement allowed in the hole). He penciled a note to Star after his visit with Kauffman.
“Sam came to see me today,” he wrote. “Gave me the update on how the government keeps dragging their feet and throwing up obstacles to the discovery we’ve asked for. Typical. Hiding behind veils and smokescreens of that tired excuse of national security. I’m not even charged with any violation of ‘national security.’ Nevertheless, once it is shown how scandalous the government has been in this case . . . not only will they likely lose their case, they will end up very possibly with an investigation and charges against them as a result. Of course, even if they try to cover up for themselves, the jury and public will see it for what it is and accountability likely will be sought against elements of the government through popular demand.
“Once I was feeling like I was tied to the railroad tracks while the government’s locomotive bore down on me. Now it’s more like two locomotives coming at each other and I’m no longer tied to the tracks. Plus, I’m not even on one of the locomotives, but I am controlling it by remote means. There is no way the government’s locomotive is going to come away undamaged. I don’t want to go on and on but I would like you to know that the big bully who always seems to get his way, has some weak spots and I know where a few key ones are. He has no fear of me because I didn’t fight back last time. This time he gives me no choice. It could be very embarassing [sic] to the bully to be shown for what he really is in public.