A Conflict of Interest

by Adam Mitzner

  “What’s that, Mr. Paylin?” Judge Liebman squeaks.

  Pavin doesn’t correct the judge’s mispronunciation of his name, and instead goes through the same speech as before, nearly word for word, which tells me he’s the kind of lawyer who doesn’t leave much to chance in the courtroom, right down to scripting what he’s going to say. I don’t say that as a criticism; I do the same thing.

  “Is that acceptable to the defense?” the judge asks in my direction after Pavin finishes his repeat performance.

  “It is.” I deliberately leave off calling him your Honor to make Pavin’s sucking up seem more pronounced.

  “If you’re both happy, then I’m happy. Thank you, gentlemen.”

  I look over at Pavin and he’s looking at me. I make a gesture to indicate that he should be the one to tell Judge Liebman that he’s forgotten to pull a name from the wheel, and he either understands it or reaches that conclusion on his own, because he’s standing again.

  “Your Honor, I believe you need to assign a trial judge,” Pavin says.

  “Oh, I thought we’d done that. We haven’t? Okay.” Liebman looks over to his deputy. “Rod, could you please spin the wheel?”

  I’m sure no one intended for the selection of a United States district judge to resemble the lottery drawings on television before the evening news, but that’s exactly what it looks like. There’s a big wire mesh case with a crank on the side and inside are thirty-six white tiles, each about the size of a domino, with a judge’s name written in black.

  The wire mesh case makes several turns around before coming to a stop. Rod reaches in and pulls out a single tile. “The Honorable Nicole Sullivan,” he calls out, and holds out the tile for everyone to see.

  “Good or bad?” Ohlig asks in a loud whisper.

  “Bad,” I whisper back, much more quietly. “Very bad.”

  Part 3

  15

  Just like the dormancy between the convening of the grand jury and the indictment, the month after the indictment has also resembled a calm before the storm. Nothing of note happened until the date the government was ordered to turn over its Brady material.

  So named for the Supreme Court decision, Brady v. Maryland, Brady material is the evidence the government has collected that could be considered exculpatory, plus any statements given by witnesses who the government intends to call at trial. As with all procedural rules, there are ways to end-run it so that it’s quite often the case that the Brady material contains very little the defense doesn’t already know.

  Had that been the case here, I would have been supremely relieved.

  No such luck, however. That’s why I summoned Ohlig up to New York to meet with us. He’s perfected his Mr. Cool persona to such an extent that he didn’t even ask why.

  “I can’t believe the Four Seasons in this city charges eight hundred bucks a night and the rooms are like shoeboxes,” Ohlig says. “You know who I blame for this, don’t you?”

  I know the answer—he blames me. After the indictment, I told him to sell the three vacation homes he owned. He protested, of course, but ultimately relented when I explained that a jury would not feel any sympathy for a guy who owns homes all over the world. He found a buyer for the pied-à-terre at the Pierre Hotel almost immediately, but claims the market is such that he can’t give away the ski chalet in Vail or the villa in Turks and Caicos.

  “I.M. Pei?” I say with a straight face.

  “Who?” he asks, momentarily thrown from his punch line.

  “I.M. Pei. He’s the architect who designed the Manhattan Four Seasons. I’m assuming that if you have a problem with your room’s proportions, he would be the guy to blame.”

  Ohlig laughs, the good laugh, the one that says he means it. “Very good. Okay. Yes, I blame I.M. Pei. And I’ll tell you another thing, I’m not too happy with what he did with the Louvre either.”

  This causes me to laugh with him. “Why don’t we continue our discussion of modern architecture in a conference room,” I say, reaching over to dial Abby’s extension. “That way Abby can join us.”

  “Sure.” Ohlig wears a wide grin, his usual reaction whenever he’s told Abby will be joining us.

  I pick up the receiver to take Abby off speakerphone before she can say anything I wouldn’t want Ohlig to hear. “Abby, it’s Alex. Michael is here and I thought we could meet in the conference room on 57 to talk about the tapes.”

  “Tapes?” Ohlig says as I put down the phone. “Are we going to listen to some Tony Bennett today?” His quip notwithstanding, I can tell by the obvious effort it takes him to hold his smile that he knows this is no joking matter.

  “Sorry, no such luck. It’s going to be your greatest hits, I’m afraid.” Now I’ve got his undivided attention. “For the last three months of OPM’s existence, the government had wiretaps on your brokers.”

  Ohlig’s only response is to narrow his eyes, as if he’s running through his mind what he’s about to hear. After a few moments of thought, he says, “Shall we?” with his trademark grin, and begins to rise.

  Abby is already in the conference room when we arrive. A yellow legal pad sits on the table in front of her and she’s wearing her game face.

  In the past month, I’ve spent, on average, sixty hours a week in Abby’s company. Although I’ve managed to stay true to my marriage vows, I’ve done so only in the most literal sense. In every other way I’m engaged in a full-fledged affair. Abby and I are in each other’s offices three to four times a day, and our IM exchanges are virtually non-stop. We have all of our meals together in the “war room” (which is actually a windowless conference room filled with boxes that is now the command center for our battle against the government), but once a week or so we go out to dinner somewhere expensive, which also means romantic, on Ohlig’s tab. And I begin and end my day dialing into my voicemail, where there is almost always a message from Abby, more often than not having nothing to do with work.

  At first I thought I could compartmentalize Abby separately from Elizabeth, the way I do one case from another. Of course, that has turned out to be impossible. My time with Elizabeth is spent counting the hours until I can go back to the office.

  Elizabeth hasn’t mentioned anything, at least not directly. From time to time she’ll make a comment about how I seem distracted, and I’ll tell her I’m thinking about the case or about my father, which is sometimes true, but more often than not is a lie. She accepts my explanation without further inquiry. She’s seen me work non-stop before, so that may be the reason she hasn’t cross-examined me further, but if I were a betting man, I’d wager she knows that my distance is the result of something else entirely, and that she hasn’t asked about it because she doesn’t want to confirm her suspicion.

  “Michael, help yourself to some coffee or breakfast,” I say when we enter the conference room. “You too, Abby.”

  A buffet of coffee, pastries, and fresh fruit lines the back of the conference room. Ohlig makes a beeline for the food. Abby stays put.

  “I figure if I eat enough pastry, I can break even on your bill. How many of these guys do you think I need to put down?” He holds up a mini chocolate croissant.

  I don’t respond. By now I’m more surprised when he doesn’t make a joke about the bill. When Ohlig returns to the table, his plate full of food, I say to Abby, “I’ve told Michael that the government has produced some audio tapes.”

  “Give it to me straight, Abby,” Ohlig says, leaning into her and locking onto her eyes.

  This is something else I’m quite used to. When we meet one-on-one, I’m the recipient of Ohlig’s charm, but as soon as Abby enters the room, it’s as if I don’t exist anymore.

  “Most are defensible,” Abby says. “The same type of hyperbole all brokers use. We’ve got a problem with one guy, though. His name is Kevin Gates.”

  Ohlig shows no hint that he recognizes the name. “What’s this Gates-guy saying?” he asks.

  “Take a listen,” she says
and then reaches over to her laptop. A couple of clicks later we hear static, followed by an authoritative voice.

  “This is Special Agent Gregory McNiven of the Federal Bureau of Investigation. The conversations on this tape will be from the phone number area code 561-555-7597. This tape recording is pursuant to warrant.”

  “Hello,” says a man’s faint voice on the tape. You can tell instantly he’s over eighty.

  “Mrs., oh I’m sorry, Mr. Rudintsky.” From the sound of his voice, Kevin Gates’s age clearly falls on the other end of the spectrum; he sounds barely old enough to have a job.

  “Rudnitsky,” the old man corrects.

  “Rudnitsky. Sorry. Listen, I know your time is valuable, as is my own.” Gates runs his words together, indicating that he might be working off a script, even though Ohlig swears that wasn’t the way OPM’s business was conducted and, so far at least, we haven’t seen anything to contradict him. “Allow me to introduce myself. My name is Kevin Gates. I’m a Senior Vice President in the wealth management department at OPM Securities, located right here in beautiful Palm Beach, Florida. I was provided your name by a colleague who told me you were an experienced enough investor to know that when an opportunity comes along, you either grab it or wish you had. So, let me give it to you straight.

  “My company has permitted me to offer to a select few qualified investors a stock called Salminol at a very attractive price. Salminol is a publicly traded security, and the company holds a certified United States patent for completely eliminating salmonella in eggs. Now I’m sure you’re aware that salmonella is one of the leading causes of death in certain parts of the world, and a major problem here at home too. And you must have heard about the dangers of eggs. I mean, it was all over the news; about a billion of them had to be recalled. Well, this company is going to make all of that a thing of the past. Imagine, you go into your grocery store and sitting there on the shelf are two boxes of eggs. One is the regular kind, you have no idea where it comes from, and right next to it is a box that says right on the box, in big bold letters, 100% salmonella-free—guaranteed. I mean, it’s a no-brainer, right? Everyone’s going to buy the salmonella-free one.

  “I know what you’re thinking. There’s a catch, right? Like my daddy always told me, if it sounds too good to be true, it is. So, here’s the catch. These eggs are being sold in parts of Canada and sales there are through the roof. But the company needs to expand its distribution and its market penetration. They’ve got to be global, right? It’s a global economy out there. So here’s why their problem is good news for you. To raise money so they can go global, the company is selling—for a short time only—a limited amount of its stock in a private offering. Now, I’m sure you’ve heard of IPOs and you know that usually only the big shots get in on them—CEOs, hedge fund managers, Hollywood types—and they clean up. But my company does its bread and butter with sophisticated but lower net-worth investors such as yourself, and so this time we decided to share the wealth a little and let our investors get in on something big. I mean, the stock’s gotta go to the moon, between the product being can’t-miss and with the company likely going to buy back some stock at a premium—hold on, I’m not sure I’m allowed to say that, so forget I said that, okay?

  “Anyway, the bottom line is, I can put aside seven thousand shares. The current ask is a buck, but it might end up being a little more because this thing is on the uptick even as we speak. But if you put up, let’s say, ten grand, I guarantee you triple it in less than a month.”

  During this pitch, for the most part, Abby, Ohlig, and I have been staring at the computer, as if there was a person actually inside it delivering these words. Hearing Gates make a guarantee—which results in an immediate license revocation by the SEC—causes me to look up at Ohlig. His expression back doesn’t contain even the slightest bit of concern.

  “What’s your name again?” the old man on the tape asks.

  “It’s Kevin, Kevin Gates. Hey, hold on for a second, I’m on an important call with Mr. Rudnitsky, the man I told you about.” Gates must have said this pulling his mouth away from the phone, as if he’s talking to someone else, because this part sounds more muted. “Yes, yes, I’ll call him right back. I understand he’s about to get on the jet, but I have another client on the phone now. I promise, three minutes. No, I can’t guarantee it’s going to be the same price as I quoted this morning. Yes, I know he wants to buy a million shares, but it’s going up every minute. I’m very sorry about that, Mr. Rudnitsky,” Gates says, now more loudly. “Can I put you down for fifteen thousand?”

  “I don’t know. I normally discuss any type of investment with my wife. You know, we’re on a fixed budget and—”

  “I totally understand where you’re coming from, and if your wife makes all the decisions in your house, that’s fine. But here’s the thing. When you call back, I’m not going to be able to offer you the same deal. Look, even though I shouldn’t be telling you this, I’m sure you’ve already figured it out. My other client is going to buy a million shares as soon as I get off the phone with you. That’s going to move the price at least a buck. So, you can pretty much double your money just by getting in ahead of him. If after that your wife wants to sell, God bless, and you’ll have enough in profits to take her on a cruise around the world. Not bad for ten minutes’ work, right? And, if you want to keep going, who knows how much you’ll make. Imagine if I was calling you about Microsoft before anybody had heard of it. What would your wife be saying if you told her you passed?”

  “Well—”

  “Yes, yes, I know,” Gates says to whom I imagine to be the pretend person standing in his office. “I’m going to do this right now. Tell Mr. Windsor to hold. I’m sorry, Mr. Rudnitsky, I have to take this other call. The guy simply can’t wait when money’s on the line, and he’s afraid it’s going to cost him another million because it’s ticking up. But, look, I live by the credo that a client is a client, and I’m not judging based on how fat their wallets are. So, you’re the client I have on the phone now, and if you give me the go-ahead, you’re in.”

  “Okay, I suppose I can swing—”

  “Great, I’m going to transfer you to one of my assistants, and she’ll do the paper work. For twenty thou. If you have any questions, just give me a call. You’ve made a great decision. Gotta run now—”

  The tape goes silent.

  I’m about to say something, when Abby interrupts. “Hold on, this is the part I really wanted you to hear.”

  Gates’s voice comes back on the tape. “Thanks B-man, I thought he was going to croak before I could wrest the fucking twenty grand out of his hand. Wait till he tells the wife he invested twenty grand in a steaming pile of dog shit. Ohlig better give me that bonus he promised for selling out of this mofo before it hits zero.”

  “Gates apparently didn’t realize he hadn’t disconnected the line after transferring the client to ops,” Abby says, stating the obvious.

  She and I now wait, looking at Ohlig to provide some explanation. Apparently, Ohlig doesn’t think he has to add anything to what we’ve heard, even though he’s smart enough to know that this is a major problem.

  “We need to find Gates,” I say when it’s clear Ohlig isn’t going to say anything.

  “Gates isn’t even the guy’s real name,” Ohlig says. “It’s Popowski. He thought customers would be more trusting if they thought he was rich, so the idiot decided to call himself Gates. Anyway, the guy worked for me for less than three weeks. I found out that he was pulling this crap and he was out on his ass.”

  “That makes it pretty clear he’s not going to be helpful to us on the stand,” I say.

  “Look, I can see that you’re troubled by this, so let me put you at ease. I never said that I thought it was going to zero. That’s just him blowing smoke.” Ohlig shakes his head. “But it’s all beside the point because there’s no way they’re going to put him on the stand.” Ohlig says this with an authoritative air, as if he’s fully ve
rsed in prosecutorial decision making. “The guy’s a known liar. At least ten people will testify to that.”

  “They’ve got to put him on the stand,” Abby responds. “Without Gates, or Popowski, or whoever he is, they won’t be able to get the tape into evidence.”

  “Really?” Ohlig asks.

  “Don’t kill him yet,” I joke, “but Abby’s right. The tape would be inadmissible. They might be able to figure out some other way to authenticate it, but usually you do it by having the person on the tape testify.”

  “What about the FBI guy?” he asks.

  “That wouldn’t work. Maybe Judge Sullivan lets in the sales pitch through the agent, but she’d never allow him to testify about the part where he says you knew it would go to zero. That’s Hearsay 101.” I turn toward Abby. “Have you heard any other pitches like this?”

  “No,” she says.

  “Like I’ve been telling you guys,” Ohlig says, “it’s all legit. You know, we’re salesmen, so we sell. That’s what we do all day. But I tell my guys, it’s got to be the truth, and if I find out differently, you’re gone. No second chance. Zero tolerance. I mean, how many calls did they tape and all they got is this one guy. Doesn’t that say something?”

  He has a point, but I know that it will be lost on the jury. “It doesn’t work like that, I’m afraid,” I tell him. “Unfortunately, for most jurors, a single incriminating statement on a thousand hours of tape isn’t much different than if the statement stood alone. Either way, it shows a crime has been committed.”

  He shakes his head, as if the act itself repudiates my opinion. “Abby,” he says with the lascivious cadence that usually accompanies his invocation of her name, “did they tape any of my phones?”