by Dave Gerard
Ashley looked at me pointedly. She motioned to my pocket. It took a minute, but I got the hint. I took out my wallet and withdrew a fat stack of Colombian pesos.
“Appreciate your help, amigo,” I said, handing them to the guard.
At this, he relaxed, and finally smiled for the first time in this surreal encounter. I suppose that was the way it worked down here.
“Good night,” I said.
“Buenas noches,” replied the guard.
Ashley waved goodbye as well and stepped out of the shack. We walked calmly, and I tried to hide the shaking in my arms and legs. As soon as we were out of view, we broke into a dead run toward the cluster of palm trees that was hiding our boat. My heart was pumping with adrenaline. I kept waiting for the guard to burst out and try to stop us, but he didn’t.
Curacao was still there, waiting for us. We jumped into the boat, ignoring his urgent recriminations. Ashley told him to get the hell out of there as fast as he could. Curacao gunned the engine and we sped away from the island, and toward the shore.
“That was fucking amazing,” Ashley told me, as we stood there in the moonlight, her hair waving in the wind, the ocean spray kicking up all around us. She was breathing hard. And she was looking at me a different light now. There was admiration in her eyes. Or maybe something else.
“You were great too,” I said. “Teamwork.”
Back on the shore, I doubled the money we’d given to Curacao. He thanked us and bid us good night, no doubt wishing he’d never met these gringos, despite the payday. After that, we walked back to the hotel and went to bed.
I lay awake for a little while, staring at the ceiling. I thought about the surreal encounter we’d just had. About the treasure flight that morning. About Ashley, and the way she had looked at me, and whether I should have done something before the night had ended. But I was tired, and I soon fell asleep. The next morning, we woke up early and caught a flight back to Texas.
THIRTEEN
Dear Mr. Carver,
Pursuant to your subpoena, please find enclosed David Marcum’s banking records for the last five years. We trust this will assist with your claim.
Sincerely,
Travis Scott
Senior Counsel, Bank of America
I grinned as I tore open the package. I had been waiting for these.
Early in the case, we had contacted David Marcum’s bank, his cell phone company, his internet service provider, and others to get records. With his bank and cell phone records, we would be able to trace what he was doing, where he was going, and who he was talking to. With his internet search history, we would almost be able to tell what he was thinking. By then, the court had appointed Ashley as executrix of the estate, and she called to get the records some time ago.
Unfortunately, it wasn’t that easy. The first problem was that we didn’t have a death certificate. Companies like Apple or Google would defend their users’ privacy to the death, and sometimes beyond. It was hard enough to get records when you did have a death certificate. Without one, it was almost impossible. I tried to explain that we couldn’t get a death certificate until we knew how he died, but we couldn’t know how he died unless we got the records. But they were not interested in my catch-22, and politely told me to pound sand.
I asked Remington about it, and he told me to subpoena them. In a civil case, an attorney can subpoena just about anyone he or she wants and make them give up information about the case.
So we subpoenaed everyone we could think of, including David’s email provider, his apartment complex, his Amazon account, and more. I even subpoenaed his dry-cleaner, on the off chance that his shirt choices might tell us something about where he had gone. A slew of responses came back over the next few weeks and months. Some of the companies fought us, and we had to threaten them with all manner of legal action if they didn’t comply. Eventually, most of them agreed to cooperate.
Unfortunately, what we got was not very useful. That was because of the second problem, which Ashley had warned me about: David was a privacy nut. He was one of those conspiracy theorists who thought the government spied on everything he did. He had no social media, used burner phones, and refused to call or text except on an encrypted messaging app called Signal.
Signal stored virtually no data about its users. It erased conversations after a certain period of time. The last time that David had wished Ashley a happy birthday, the message had disappeared six minutes later. The government hated Signal, which could be used by terrorists, protestors, Edward Snowden, or the average American who didn’t want the government spying on their conversations. So although we sent a subpoena to Signal, we were not surprised when it came back empty handed.
Our subpoena to David’s email provider was equally unhelpful. David used ProtonMail, an encrypted email service based in Geneva. It was founded by a team of scientists who met at the CERN research facility. Our subpoena to Switzerland was met with a brusque communique, written in Swiss, which, when decoded via the auspices of Google Translate, told us to eat shit. Remington said that we could try to serve Letters Rogatory under the Hague Convention for something or other, but that it probably wasn’t worth the trouble.
Luckily, some of the other companies were easier to persuade. We caught a break with Bank of America. I served them with a flurry of record requests, and hit upon the notion of subpoenaing their high-ranking executives, including their CEO, to testify under oath. I probably couldn’t have actually made them testify. But rather than fight about it, they caved and agreed to let us see the records.
I picked up the phone and called Ashley. “I’ve got the bank records. Opening them as we speak. You want in?”
“Yes! I’ll come by this afternoon before work. Don’t peek without me.”
“See you then.”
The records were a welcome respite from everything else that was going on. It was three weeks after our return from Colombia. After we had gotten back, I had fessed up to Remington about our little excursion to Rockweiller’s island, and about my treasure hunting flight.
Remington had been furious. He asked whether I was an imbecile, or whether I really thought I could go around breaking into private property like some gumshoe in a detective novel. He said that when Rockweiller found out—when, not if, because they surely would—this could seriously jeopardize not only my legal career but also our credibility with the judge, and therefore our ability to prosecute the case. Then he yelled at me for chasing fairy tales when we had a dead man on our hands and no clue how he had died. If I wanted to be a treasure hunter, I ought to take a vacation and do it on my own time, he said.
I hung my head and apologized profusely. I think Remington felt bad for me, because after that he let it go and didn’t bring it up again. I should have told Kruckemeyer at the same time, because when I did, I got a second tongue-lashing, this one so loud that half the office heard. Thereafter, I was relegated to document review for the next couple of weeks, which I did with my head down and no complaints.
It was a good thing I’d come clean about it, though, because Rockweiller did find out. A week after my return, Badden & Bock filed a motion for sanctions, ethical censure, and disbarment with our new judge. The motion recounted my trespass, complete with video footage and an affidavit from the guard. I guess there had been cameras after all.
Rockweiller’s motion chilled me to the marrow. It put me in the worst possible light. I didn’t sleep for days after reading it. Remington thought disbarment was unlikely. But as to the rest, he admitted he didn’t know. Cindy and Harder responded to the motion, because I was in no condition to do it. They put their backs into it, which further eased my ill-feeling toward Harder.
Remington himself put the finishing touches on our brief. I almost felt good about the final draft. But I knew that, because of me, we were going into our first hearing in front of Judge Graves on the
back foot. Instead of the hearing being about Rockweiller’s discovery tactics, it was also going to be about me. It was set for one week’s time, and I was scared half to death over it.
I put all of that aside for the moment and turned to the records we had gotten from Bank of America. A few hours later, Ashley and I were posted up in a conference room with a sheaf of papers spread out in front of us. We had David’s bank records for the last five years, including credit and debit card statements.
From the bank statements, we traced David’s spending over the last couple of years. Two years ago, he had been living in Houston. He paid 1,200 dollars a month in rent for a small apartment in Montrose. Montrose was a quaint, hipster neighborhood with a lot of bars, restaurants, and tattoo parlors. Most of Marcum’s daily charges were typical living expenses like groceries, gas, food, and drinks. And most were within twenty miles of Montrose. David had also traveled to a handful of places in the last year. Credit card activity showed that he’d flown to Colorado in the winter (to ski) California in the summer (to surf) and Mexico once, although those days were mostly done with cash. Marcum kept his monthly expenditures impressively low, and his only streaming subscription was HBO, which I thought showed class.
About a year ago, his rent payments stopped, but the other expenses continued. I matched up the dates with a lawsuit against him for unpaid rent.
Then, about seven or eight months ago, David had moved to Key West, Florida. We saw the same type of charges at coffee shops, bars, etc., but now at different locations in Key West. This would have been during his time at Aqua Ray.
We also noticed withdrawals, weeks or months apart, for hundreds of dollars at a time. Altogether, these added up to thousands of dollars over the course of about six months. David had used cash to buy things he didn’t want to attract attention to. It was part of the whole privacy, conspiracy theory mentality. So it was possible that the very records we most wanted to see weren’t in these statements at all.
Two months ago, all activity cut off. The final charge was for $8.77 at Pollo Tropical, a Caribbean fast-food chain in Florida. After that, it was blank. We scanned backward, looking for anything unusual.
“There,” Ashley said suddenly, stabbing her fingers at the sheet.
I looked. And there it was. Two flights, bought several months apart, on American Airlines. One of them was a couple months before his disappearance. The other one, mere weeks before.
The charges didn’t say where he was flying to. But from the prices, I was sure they were international. The first flight cost about thirteen hundred dollars. The second one was closer to eighteen hundred. It didn’t cost that much to fly anywhere in the U.S., except maybe first class. I tried to guess where he was going based on the fares, but I couldn’t. The price seemed a little high for Colombia. But I wasn’t sure.
Luckily, I knew just how to find out. The next day, Cindy and I drew up subpoenas to American Airlines. We demanded a response within fourteen days, and I set a calendar notification to tell us when the day came. Then we hired a process server to send them out. I had done enough of these subpoenas by now to know what I was doing. I’d probably have to fight a little with American Airlines, but they would give it up.
Harder also had the idiotic idea to try and subpoena the Transportation Security Administration, in case American Airlines wouldn’t play ball. I thought this was a waste of paper. A gnat had a better chance at taking down a human being than we did at getting the attention of a government behemoth like the TSA. But it was easier to serve the subpoena than to argue with Harder, so I did it to shut him up.
Once we got David Marcum’s flight records, we would know where he had gone during the last few weeks of his life. And I had a feeling that wherever it was, that was where he had disappeared.
But before that, I would have to face my fate before Judge Nathaniel Graves in Galveston, Texas.
FOURTEEN
The federal courthouse in Galveston was built in the 1930s in the Art Deco style. I thought it looked like a cinderblock with windows. The courthouse shared space with the post office, and ran what business you’d expect from a sleepy beach town an hour south of Houston.
The federal judge in this courthouse was anything but sleepy, though. The Honorable Nathaniel L. Graves had strong opinions and dispensed justice with a heavy hand. As the lone federal judge in Galveston, he was essentially the lord of all he surveyed, and acted like it. Graves was famous for dragging warring litigants into court, telling them what he thought their cases were worth, and forcing them to settle. Later, the lawyers would grudgingly admit that the settlements were fair and saved them years of litigation. But never to their clients, and never in public. Graves also had a brilliant legal mind, and his sharp and often humorous opinions were read by judges around the state.
Graves was well-liked in the Galveston community. He raised sums for local charities and leaned on lawyers to donate, which invariably they did. He appointed lawyers to handle criminal cases for those who couldn’t pay. Graves was not afraid to take on powerful interests, either. He had once presided over a corruption case involving half a dozen local officials accused of embezzling funds. When party heavyweights visited him privately and suggested that he lay off, he hauled them into open court, clapped them in irons, and told them that he would lay off “when I get impeached by Congress and convicted by two-thirds of the U.S. Senate—and not a goddamn day before!”
So it was with trepidation that any lawyer filed into the United States District Court for the Southern District of Texas, Galveston Division. Especially me.
I arrived in Galveston early, and spent the extra time driving down Seawall Boulevard, enjoying the salty tang of the sea air. The weather was overcast. I watched the seagulls wheel and caw as the gray surf of the Gulf pounded sand into muddied water below. I parked for a few minutes and just stood by the ocean, letting the rhythmic sound of the waves soothe my anxieties.
An hour later, Remington and I walked into the courtroom. Judge Graves was sitting on his high bench as we walked in. He had a big face and a jutting jaw under a thick mop of hair that was shot through with gray. Graves was flanked by his law clerks and staff. He was sitting there as calm as you please, reviewing some papers through his thick reading glasses.
One of the young law clerks stood up, straight as a spear, and called out loudly. “The United States District Court for the Southern District of Texas, Galveston Division, is now in session. God save these United States and this Honorable Court!” He said it with such gusto that it echoed around the chamber once he had finished. Then he sat down, satisfied. The other clerk called the case number, and the proceedings began.
Graves looked up. “Good morning, counselors,” he boomed. “You may be seated. I see that this case was re-filed from state court, and that there are a number of outstanding discovery issues.”
“That is correct, Your Honor,” said Bock with his trademark arrogance.
“Very well,” said Judge Graves. “Why don’t we deal with those issues now.”
“I’m afraid those issues aren’t ripe for decision yet,” Bock demurred. “We haven’t yet had the Rule 26 scheduling conference. That means that the plaintiff’s discovery issues cannot be addressed for another thirty days at least.” Loudamire and Quinto shook their heads sorrowfully at this thorny bit of procedure that was preventing the wheels of justice from turning.
It was a ploy. Under Federal Rule of Civil Procedure 26, attorneys are supposed to meet for a “conference” before serving any discovery requests. I had tried to set up such a conference about five times. But Loudamire kept dodging my calls or claiming that they were “otherwise occupied.” I glared at her. She smirked.
“Well,” said Judge Graves, “we’ll call this a Rule 16 scheduling conference then, so we can get it out of the way.”
“Your Honor, unfortunately, I must object. This was not formally noti
ced as a Rule 16 conference. Accordingly—”
“Accordingly what, Mr. Bock?,” said Graves, interrupting Bock mid-sentence. “Shall we reconvene in thirty days, and waste everyone’s time, in order to be in compliance with the letter of the Rule?”
Bock shrugged as if to say, I didn’t draft the Federal Rules of Civil Procedure.
Remington stood up and spoke in a monotone voice. “As Your Honor knows, Rule 16 also gives the Court discretion to hear discovery matters prior to a Rule 26 conference if it deems it appropriate.”
“Indeed so. How do you say to that, Mr. Bock?” Graves asked.
Bock hedged. “Technically yes, Your Honor. But that discretion should not be applied here. If you’ve read pages sixteen through twenty of our brief—”
“I have read pages sixteen through twenty of your brief, Mr. Bock,” Graves said, “and I am not persuaded. So we will take up this issue now. Understood?”
“Yes, Your Honor.”
Loudamire’s smirk withered, and now it was me suppressing a grin. I liked this judge.
“Good,” said Graves. “First, I see that there is a dispute over the res. A set of ancient gold coins, if it can be believed. I verily shiver with excitement. Now, explain to me why the plaintiff shouldn’t have a chance to analyze them.”
I knew what was coming. Bock reached his hand back, and Quinto slapped the PowerPoint remote into his hand like a football. The courtroom’s screen powered on, and I saw Bock’s latest masterpiece load. It had forty-four slides.
But Graves was not interested. “Mr. Bock, I would like an answer, and not in the form of a PowerPoint presentation. I have read the briefs and assure you that I am familiar with the issues. Spending another hour with the same arguments, gussied up with what I have no doubt are pretty graphics and animations, will not assist me in making a decision. So why don’t you simply explain to me, in your own words, why the plaintiff shouldn’t have a chance to analyze the coins.”