Dead Man's Rule

by Rick Acker

  Fortunately, the busboy had found Sergei’s briefcase and it was waiting for him at the front desk, its contents undisturbed. As expected, Sergei didn’t see the tail again as he walked back to his office. The man’s employers wouldn’t use him for street surveillance anymore, at least not on foot.

  And just who might those employers be? he wondered as he unlocked his office door. He could think of half a dozen candidates off the top of his head, but none was more likely than any of the others. The only way to know would be to put the tail under surveillance, which would have been hard half an hour ago. Now it would be virtually impossible.

  Ben stared blankly at his computer screen, lost in thought. The “paper” Dr. Ivanovsky had received from Nicki Zinoviev was a badly typed letter that stated in its entirety:

  To Wom It May Concern:

  I am Nikolai P. Zinoviev. I am the hair and executor of Alexei Zinoviev (a/k/a Vladimir Nikolaev, Ivan Kuzmin, Peter Romanov, Yuri Sokolov), who is dead since 16 November 1985. If you have things belonging to Alexei Zinoviev, you can tell Mikhail Ivanovsky.

  Very Truely Yours,

  Nikolai Zinoviev

  Dr. Ivanovsky had also sent a form order from Alexei’s long-closed probate estate appointing Nicki executor of the estate, which banks had no doubt required before they would accept the letter.

  Ben was trying to think of a good argument for why the letter and order helped prove that there was an oral contract between Nikolai Zinoviev and Dr. Ivanovsky. It was hard work. So far, the best he could come up with was that the letter showed that Dr. Ivanovsky had been prospecting for lost assets belonging to Alexei. In that context, the $5,000 transfer from Dr. Ivanovsky to Nikolai only made sense as a payment for an asset Dr. Ivanovsky had located—and the only asset fitting that description was the safe-deposit box.

  “Pretty thin,” Ben admitted to himself as he scrolled through the draft motion for reconsideration. All he had really shown was that a contract for the sale of the box was consistent with the known facts, but so was a loan or a contract for the sale of some other object. Without the seller’s or the buyer’s testimony, Ben couldn’t actually prove that Zinoviev had sold the box to Dr. Ivanovsky, a fact that Anthony Simeon would be sure to point out.

  “How’s it going?” Noelle asked from behind him.

  Ben swiveled his chair around and saw her leaning against the jamb of his office door. “Okay. This Ivanovsky motion is going pretty slow.”

  “Is he still calling every hour?”

  Ben grinned. “You’ve been out of the office all day; how did you know?”

  “Lucky guess.”

  “I explained to him that the less time I spend on the phone with him, the more I can spend on this motion. I’m also having Susan screen my calls. That’s helped, but I’m still having a rough time.”

  Her face grew serious. “Are you going to win?”

  He leaned back, stretched, and ran his fingers through his hair. “Maybe.”

  “Not probably?”

  “Nope.” He didn’t really want to talk about it anymore and changed the subject. “Sergei Spassky was here this afternoon. He checked the office, and we’re bug free.”

  “Did he find anything on Zinoviev’s brother?”

  “It looks like he was a smuggler, but not a CIA agent. They don’t have any record of him.”

  “How’d Sergei find that out?”

  “He didn’t give me the details, but I think he managed to have someone search the CIA’s database.”

  “Pretty impressive.” She paused as she considered the implications. “So what is that? Good news? Bad news?”

  “Yes,” Ben said with a wry smile. “The good news is that it looks like Dr. Ivanovsky might not have been telling the truth about Variant D.”

  “And the bad news is that he might not have been telling the truth at all.”

  “Right. That doesn’t necessarily make him a liar. There might be a bug in the CIA database. Or Dr. Ivanovsky could’ve been mistaken about the picture in the paper. Or he might be delusional.”

  “Or he might be a liar.”

  “Yeah, he might,” admitted Ben. “I kind of doubt it, though.”

  “Why?”

  “He doesn’t lie well, for one thing. And I just can’t believe that the display he put on was fake. If it was, he deserves an Oscar.”

  “He has turned out to be full of surprises, hasn’t he?” said Noelle.

  “He has, but I really think he believed what he was telling me,” Ben said with a shrug. “Whether he was right or not is another question.”

  “Well, what do you think?”

  “For one thing, I think there’s not much point in going to the FBI, at least not until I’ve got something more reliable than a completely unsupported secondhand story. Beyond that . . . well, I don’t know what to think. Which is part of the reason I’m having trouble writing this motion. Here I am in the middle of the case, and I don’t know what’s really going on. In fact, I know a lot less than I thought I knew the day after I took the case. It’s frustrating.”

  “But does that directly affect this motion you’re writing?” asked Noelle.

  Ben thought for a moment. “I guess not. The motion will be the same whether the box holds fake watches or real bioweapons. I suppose I can only do what I have in front of me, and today that’s this motion. If I win, then I can worry about what’s in the box and who exactly is after it.” He paused. “Actually, I’d probably worry about that more if I lost.”

  “Me too. Don’t lose.”

  “So you think you’re being followed?” Auntie Olga asked as she wiped down the long Formica counter.

  “I know I was yesterday,” Sergei replied, lifting up his coffee cup and saucer as she reached him. “The tail is compromised, though, and he knows it. I haven’t seen him since, so my guess is that there’s someone new and more careful out there today.”

  “Why are you sure your tail knew he was compromised?”

  He didn’t want to talk about his stupid stunt, so he gave a nonchalant shrug and said, “Well, after years of FBI experience, I could just tell.”

  Olga looked at him oddly, but all she said was, “All right. So how can I help?”

  “I’ll arrange to walk past here three or four times over the next day, and each time I’ll let you know I’m coming. Just look out your window for a minute or so after I pass. If you see the same person each time, that’s my new tail. I’ll stop in for lunch tomorrow, and you can tell me what you saw, okay?”

  “Okay.”

  That afternoon, Sergei went to his barber, an elderly gentleman who did one style (the flattop) well and therefore gave it to anyone who sat in his chair unless they specifically instructed him otherwise. On the way back to his office, Sergei took a route that went past the Petrograd. He also went to an indoor shooting range about a half mile away, to keep from getting rusty with his nine millimeter. The L or the bus would have been faster, but his walk took him past Olga Yanayev’s window going both ways. The next morning, for good measure, he went to a Russian bakery a block and a half from the Petrograd and bought some fresh, but overpriced, prianik medoviy, a type of honey cookie he had loved since childhood.

  A few minutes after noon, he walked into the Petrograd and sat down on a stool at the end of the counter, where he could see out of the restaurant’s large plate-glass window but couldn’t easily be seen from the street. Olga came over half a minute later with water and silverware. “Thanks,” said Sergei. “Did you spot my friend?”

  “He just went into the Starbucks across the street,” she said as she arranged his place setting. “White guy, maybe forty or forty-five, black hair, a little on the short side.”

  Sergei studied the customers at Starbucks. “Hat and a tan overcoat?”

  “That’s the one. By the way, don’t count on tracking him base
d on what he’s wearing: he changed clothes at least once yesterday.”

  “So he’s more professional than the last guy,” Sergei said, nodding approvingly. “Good. This should be fun.” It had been years since he’d done countersurveillance, and he relished the challenge. “He must have someone to cover for him while he’s changing. Did you see anyone else?”

  She shook her head. “Just him.” She put her hand on Sergei’s arm and looked him in the eye. “And this isn’t ‘fun.’ This is business. I have seen men dead because they played games in situations like this and lost.”

  He patted her hand affectionately. “So have I. Don’t worry, I know what I’m doing. I’ll be careful.”

  Ben slouched in a chair at one of the little tables at the Mud Hole, drowning his sorrows in espresso. Noelle sat across from him, listening as he explained what had just happened in Judge Harris’s courtroom.

  “So wait, why did the judge throw out that letter?” she asked.

  “Because we never produced it in discovery and we didn’t have a good reason for withholding it. I was afraid this would happen. Judges hate it when parties hide stuff.”

  “But was Dr. Ivanovsky really hiding it from them? This Zinoviev guy signed it, after all, right? Wouldn’t he have a copy?”

  “You’d think so,” said Ben. “But Nicki’s dead, and if he had a copy, he didn’t give it to his lawyers or tell them about it—or so Tony Simeon says. I don’t think it really mattered to Judge Harris, though. He kept coming back to the fact that we were obligated to produce that letter and didn’t do it. He said that the law doesn’t permit litigants to play hide-the-ball, even if their opponents happen to know where the ball is.” He took a sip of his coffee. “Actually, he’s probably right.”

  “So what does this mean?” asked Noelle. “Can you still win the case?”

  “Theoretically, yes. This was only a motion to strike; the motion to reconsider isn’t up until day after tomorrow. But the judge struck the only new evidence I’ve got and everything in my motion that refers to it. All that’s left is a rehash of the arguments and evidence I used in opposing Tony’s summary-judgment motion. Judge Harris didn’t buy it then, and I’m not really optimistic that he’ll buy it the day after tomorrow.”

  “Have you committed it into God’s hands?”

  “Of course—just like I did with the motion I lost today.”

  Sergei’s apartment building had a fire escape in back, which proved useful. When he arrived home that evening, he quickly changed into a black sweatshirt and black jeans and grabbed his compact camera and telephoto lens. He unlocked his gun cabinet and took out his Beretta 92 Elite nine millimeter (the best general-purpose handgun in his armory) and his quick-release belt holster. Then he slipped out his back window and slid down the fire escape—acutely aware of the noise he was making—and dropped to the ground. He ran around the side of the building just in time to see his tail’s car pulling away from the curb a block and a half away.

  The tail would probably recognize Sergei’s customized black Mustang, which his friends had dubbed “the Black Russian.” So he had asked a friend to rent a car and park it behind the building. He ran back to it, found the keys hidden under a tire, and drove down the alley leading to the street. The alley was a maze of dumpsters and parked cars. It took time to navigate in the day and was impassible to the uninitiated at night. Sergei drove as quickly as he dared, nearly killing a neighbor’s cat in the process.

  When he reached the street and looked down it, he saw what looked like the tail’s car almost five blocks away. That was too great a distance to do reliable surveillance, but the streets were empty and well lit, and he didn’t want to risk getting caught. Besides, if he lost the car, he could always try again tomorrow. At the next stoplight, he pulled out his telephoto lens and trained it on the distant car’s license plate. He could only pick out the first three characters because a delivery truck partially blocked his view, but they matched the plates on his tail’s car. He also confirmed that the make, model, and year of the car were the same. Satisfied, he put away the lens as the light changed.

  He felt familiar butterflies beginning to flutter in his stomach, and he smiled. He had done this at least a dozen times before, but it still made him nervous—and it probably always would. A touch of nerves wasn’t necessarily bad; it kept him on his toes and prevented him from getting careless. And, as had been repeatedly drilled into his head during his FBI training, “Carelessness kills.”

  He followed the tail’s car into a brightly lit strip mall just outside the city limits. It parked near one end of the long, half-full lot in front of the stores. Sergei drove through the parking lot, turned into the delivery lane that ran behind the stores, and continued along until he reached an alley leading back to the storefront side.

  He parked his car and carefully made his way down the short, shadowy alley until he could see the tail’s car. It was empty. Sergei froze and the hair on the back of his neck stood up.

  Where are you? He glanced around quickly but saw nothing except dark asphalt and the blank walls of the buildings on either side. Great spot for an ambush. He took his pistol out of its holster.

  Staying in the shadows, he walked cautiously to the end of the alley, then stopped and crouched behind a dumpster. He snuck a quick glimpse around the edge of the dumpster and got a better look at the tail’s car. It wasn’t empty after all. A man leaned back in the passenger seat, apparently asleep. So where was the driver?

  Sergei heard a man’s voice talking in muffled tones, probably five or ten yards from his hiding spot. He peeked around the corner and caught a glimpse of a man standing at a pay phone about twenty feet away. He was facing Sergei, but the phone was between them. All Sergei could see were the man’s legs, but he had no doubt that it was his tail. Cell phones, even digital ones, could be monitored with the right equipment. Pay phones could not, unless they were bugged in advance. Professionals in search of an easily accessible and relatively secure line therefore often used randomly selected pay phones.

  The man seemed to be leaning into the little half-booth for privacy. Behind him, a steady stream of customers flowed in and out of a store’s entrance. His view was completely blocked by the walls of the booth, which gave Sergei an idea. He thought about it for a moment and decided it was worth the risk.

  Putting his pistol away, Sergei walked out of the alley and joined the shoppers on the sidewalk. His gaze flicked back and forth between the car and the man on the phone. It looked like the tail, though Sergei couldn’t be sure without seeing his face. If the man turned around, he couldn’t help seeing Sergei. But if he didn’t, Sergei might be able to eavesdrop on him for several seconds as he walked into the store.

  The man remained intent on his conversation as Sergei walked behind him. He was speaking quietly, but the curved walls of the phone enclosure reflected his voice outward. Sergei could almost, but not quite, make out what the man was saying. He slowed his pace and listened intently. The man wasn’t speaking English, Russian, or any language that Sergei recognized, but the general tone and cadence of his speech sounded vaguely familiar. Sergei was intensely curious now. He wanted to stop and listen, but he knew he couldn’t. The automatic doors of the store opened and he reluctantly walked through. Just before they closed behind him, he caught the word ghaskhi. He’d heard that before—but where?

  As soon as he was inside the store, Sergei turned left so that the tail couldn’t see him through the glass doors. He glanced back to make sure no one was behind him, then ducked down an aisle of discount cookware. Slowing his pace, he stared blankly at rows of different-sized Teflon pans as he tried to place the man’s language. Ghaskhi wasn’t Russian, but it reminded him of a trip he’d made to Russia a few years ago. But why?

  Then it hit him—he’d heard it on TV while watching coverage of the Chechen war. It was the Chechen word for “Russian.” He stopped and a chill r
an through him. Chechens? Why on earth would Chechens be following him?

  “The bugs can go back now that they’re done sweeping,” the man said into the pay phone. “We don’t want to miss more than we have to.”

  “Yes, sir. They’ll be back in when the cleaning service is done tonight.”

  “Good. How is the surveillance of the scientist going?”

  “He is a difficult subject,” the voice at the other end admitted wearily, “but at least he hasn’t spotted me.”

  “Yes. We have already lost one good soldier. We cannot afford to lose another.” He had regretted the necessity of young Alikhan’s fate, but a shadow soldier cannot have a face. If he does, he is compromised. Worse, he risks compromising every other soldier he comes in contact with, and they in turn become dangers to everyone they contact. A fighter whose identity is known is like a plague bearer, spreading his lethal infection wherever he goes.

  Unfortunately, there was only one way to stop such an infection. They all knew this; Alikhan had known it before he volunteered. He had accepted his transfer to the martyrdom unit bravely and calmly, and even now he was probably preparing for his mission against the Russian occupiers in Grozny.

  The man at the pay phone was sure Alikhan would carry out this task honorably and successfully, but he could have done so much more. A surge of fury rose in his throat as he thought of the loss of his fine young comrade. He wished he could put a knife through the heart of that arrogant Russian detective who had, in effect, killed Alikhan. That day will come, he thought, calming himself. Soon all our dead will be avenged.

  Ben lay in bed, staring at the blank ceiling and listening to Noelle snoring softly beside him. He turned his head and looked at the display on the alarm clock. 1:33 a.m. He closed his eyes and tried to relax his body and mind. He was dead tired, but somehow he just couldn’t force himself to sleep. He opened his eyes again and peered at the green digital readout. 1:46.