by Marc Rainer
"My topic for today is joint trials and conspiracy cases. My hope is that the kings of JAG-dom will someday realize that the best and brightest of our JAG Corps—those assembled here today—are completely capable of trying cases in which multiple defendants are tried and, of course, convicted together." There was more laughter.
"We do this every day in federal court, and many of those cases are prosecuted by attorneys who are far less capable than some of you in this room. I used to work for a gifted attorney in our office who had a saying: 'Governments never react very well, but they over-react superbly.'" More laughter. "When I checked into the VOQ today I almost broke a toe kicking a table leg that I thought was a bit out of place. Had I been a general officer, I might have made a remark about my toe to an aide, and I'm sure that by noon the next day, there would have been a published base regulation on proper furniture arrangement in all visiting officers' quarters." The laughter was a bit longer this time.
"Unfortunately, at some point in the distant past, someone screwed up a joint court-martial, it got reversed on appeal, and those in command naturally inferred that because one of their hand-picked superstars had been incapable of trying such a case correctly, nobody could handle the job, and joint trials essentially became forbidden in the Air Force as a matter of JAG policy. At some probably not-too-distant point in the future, some of you will hold positions of authority. I'm hoping that you'll remember my little talk today, and that we can begin saving hundreds of hours and thousands of dollars by doing what other federal courts in the nation do on an everyday basis. Let's get to the meat of this."
Trask stepped aside so that the screen was unobstructed. "As a practical matter, co-conspirators tend to bond together in fairly tight groups. As we say in today's slang, they tend to hang together." He pressed a button, and a photo of the Surratt conspiracy executions following the Lincoln assassination appeared on the screen, the conspirators' bodies dangling side by side from nooses. A chorus of groans erupted at his pun. "Just a little gallows humor," Trask said, and the groans grew louder.
"As you all know, most of the issues surrounding joint trials stem from a failure to understand the mandate of the Supreme Court in the 1968 case of Bruton v. United States, which forbids using the out-of-court statement or confession of a non-testifying co-defendant against his or her co-defendants at trial. That violates the rule against hearsay because the defendant who confessed and dirtied up his fellow defendants isn't on the stand and isn't subject to cross-examination. Does anyone here have a suggestion as to how we might deal with that complex issue?"
Captain Castle raised his hand from the front row.
"Yes, Josh?"
"Have the confessing defendant testify?"
"You're a legal scholar and a genius," Trask said. "That is exactly how simple the matter is. If you want to use the confession and your confessor is cooperating, have him plead guilty first and then testify at the trial of his co-defendants. If he's not cooperative and wants to recant his confession, then you do need to try him separately in order to use his confession against him—if it is essential to your case—so that the jury will hear the confession. If you don't need the confession because your other proof is overwhelming, don't use the confession and try him with the others. It's that simple. There are, of course, some cases in which it is possible to use part of a confession—by removing any reference in it to the other defendants—even if the confessing defendant refuses to testify. Let's talk about that for a while."
At the end of the hour, which seemed to fly by, Trask dismissed the group and waited to entertain any individual questions that might be pertinent.
"What if none of the conspirators want to cooperate, and you need one to cross the line?" Captain Castle asked. "I have a case pending trial here at Randolph where four guys—we think they're drug dealers—kidnapped another guy who's probably a member of their competition and threw him out of a car going seventy-five on the beltway. They're holding firm, not breaking ranks."
"Was the rival dealer killed?" Trask asked. He saw that Major Aguilar was standing a few feet away, listening intently. "No state secrets here, Major. Feel free to join in."
"He survived," Castle said. "He's not being fully cooperative either. After being nearly flayed on the highway, he managed to reach a home in an adjacent subdivision, and got the owner to call an ambulance. He identified the four airmen who did it, but claims he has no idea of why they sent him body surfing on the concrete."
Trask saw the puzzled look on Aguilar's face. "Our uniformed services are microcosms of our society, Major. We unfortunately have drug dealers in uniform from time to time, even some rapists and murderers. That's why the ladies and gentlemen in this room have their current assignments. You don't have similar problems in Mexico?"
"On a more limited scale," Aguilar replied. "When our men go bad, they join the cartels. When that happens, we don't court-martial them. We shoot them."
"Understandable," Trask responded. "Fortunately we haven't reached that point. Not yet anyway." He returned his attention to Castle. "Josh, are these four locked up?"
"Yes, sir. Pretrial detention was ordered for all of them."
"Are they detained here at Randolph?"
"Yes, sir."
"Let's take a ride then. Major, you're welcome to come if you like."
"Yes. I'd like that."
They got into a staff car that Captain Castle had reserved for the conference, and drove to the base detention facility.
"I just want to take a look, Josh," Trask said. "More often than not, the solution to something like this can't be found in a law book."
A security police sergeant at the desk stood up and ordered the room to attention when they entered.
"At ease," Trask said. He's the only one in the room. I wonder who he was calling to attention. "Just want to do a quick walk-through." He saw the sergeant's curious glance at Aguilar. "He's with us, sergeant. We just want to see the facility. We'll be out of your hair in five minutes."
"Yes, Colonel."
The sergeant grabbed a ring of keys and opened a metal door on the rear wall. Trask and the others entered a hall that had four large cells, two on each side of the hallway. Each cell contained four bunk beds, a stack of two bunks lining each cell wall. In the first cell on the left, Trask noticed four men in fatigue uniforms, each lying on one of the bunks. The detainees jumped down and stood at attention when they saw the officers in the hallway.
They’re getting good advice from their defense counsel, Trask thought. Behave like good little airmen prior to trial. Act like military men, not pushers in uniform. Even the confinement NCO might end up testifying for you as a character witness if you can pull the wool over his eyes for a few weeks. Trask and the others returned to the front area and waited for the sergeant to lock the door to the cell hallway.
"Josh, has your investigation indicated which one of those guys is your least culpable defendant?"
"Yes, sir. Airman Moore, the driver. The victim said Moore looked surprised when the others were trying to push him out of the vehicle. He may not have known it was going to happen."
"Good," Trask said. "Sergeant, could you do us a favor and take Airman Moore out of his current cell and move him to one down the hall? And one more thing. For dinner tonight, make Moore's portions just slightly larger—just enough to be noticeable. He showers alone, too. Any problem with those requests?"
"Not at all, Colonel. I can handle that."
"Great. Thank you."
They returned to the staff car and headed back to the conference room.
"Any questions, Major?" Trask asked.
"Divide et impera?" Aguilar asked. "Divide et impera"
"Precisely." Trask saw the puzzled look on Castle's face. "The good major quotes Julius Caesar in Caesar's native tongue, Josh. Latin for 'Divide and Conquer.' Your three most culpable dopers will now think Airman Moore has crossed the line to become one of your witnesses. He's in a cell by himself, getting m
ore grub and private bath time. Even though he's actually done nothing to cross his buddies yet, they are—at this very minute unless I'm way off base—calling him every name in the book and threatening him with every evil under the sun. His protests to the contrary will not be believed. He will sit on his bunk tonight and come to the conclusion that—since they already believe he's a rat—he might as well become one and get something out of it. He will also need and ask for your protection against them, and you will assure him you'll do everything you can, in return for his truthful testimony."
"Got it," Castle said, shaking his head. "I should have thought of that myself."
"You will, in time. It takes times to learn the tricks of the trade in any job. Oh, and your semi-cooperative victim—"
"Yes, sir?"
"Order him to report at 0730 every morning to your office. If, at the end of the fourth day he still sticks to this story about having no idea why it happened to him, tell him that you're going to have to release those four clowns and dismiss their charges because you have nothing to explain their motives for trying to kill him, and it just looks like an accident. I know that's not true, but we're still allowed to use ruses in this business. We'll see who he's most afraid of—you or the guys that already tried to off him once."
Castle smiled. "I don't think it will take four days. He'll have to come clean about his own dealings and the others' motives or they'll be out looking to finish what they started. Got it."
"Good." Trask turned toward Aguilar. "What are you speaking on tomorrow, Major?"
"Something closely related to your topic of this afternoon, Colonel. Just a different solution."
San Antonio, Texas
March 8, 2011, 7:21 p.m.
"That was Torres." Aguilar explained to his wife, laying his cell phone on JL the table. "Sorry to interrupt our dinner, Colonel. One of my officers. My company has been ordered to move to Abasolo in Tamaulipas state. There've been several deaths as the result of an ongoing feud between two of the cartels. The Zetas and Guzman's Sinaloans have been shooting the town up again."
"No need to apologize for one's duty, Major," Trask said. "The food is wonderful, and I always enjoy the Riverwalk." He looked around at the tables all lit with candles, and smelled the aroma of an order of fajitas being delivered to a nearby party. A barge full of waving tourists floated by on the river. Trask cut another bite of his enchilada with his fork, and was about to raise it when a trumpet blared behind him. He dropped the fork onto his plate, managing to catch it on the bounce to prevent it from falling off the table.
"Damn." Aguilar stood and walked over to the Mariachi band. Trask heard him say something in Spanish, after which the band members scowled and scurried away.
"Thanks," Trask said. "A bit too loud and close, I'm afraid. How did you get them to leave?"
"I must apologize for that, Colonel. I love my country, but not all of her exports. I have never been a fan of Mariachi music myself. The band leader wanted to know if I had a request, so I asked him if he knew the 'Ballad of Davy Crockett.' Apparently his band did not know the song."
"Or appreciate your request," Trask said, laughing.
"I thought it was appropriate," Aguilar replied. "After all, we're just a couple of blocks from the Alamo, and just under the street named for Crockett himself. At any rate, it's simply rude to sneak up on a dinner party like that."
"What kind of music do you enjoy?" Trask asked.
"He likes the newer classical composers," Linda Aguilar said. "Especially Aaron Copeland."
"Really?" Trask asked. "One of my favorites as well. 'Rodeo,' 'Billy the Kid,' 'Appalachian Spring.' By the way, Major, you don't have to call me 'Colonel' the rest of the evening. Please call me 'Jeff.' I'm just a reservist now anyway, and all the formality makes me almost as uncomfortable as that trumpet in my ear. Even if you don't, I'm going to start using your first name, my friend, so we might as well be even."
"Very well, Jeff," Aguilar said, smiling and lifting his glass.
"Thank you, Luis. By the way, I found your presentation today to be fascinating, and troubling. I had no idea things were that bad in Mexico. I'd like to know more about your cartel problems."
"Good." Aguilar was not smiling anymore. "My country is falling apart, Jeff. My wife is an American. I attended university in California. I have many friends on your side of the Rio Grande, and I do not wish to see your country suffer as mine has. You need to be very much aware of the threats our enemies—and they are our enemies—pose. That is one reason we invited you to dinner tonight. I was impressed with your talk as well, and with the way you handled Captain Castle's problem."
"Josh is a sharp man. He'll pick it up in time. He just needed to get his head out of the law books for a minute or two."
Aguilar nodded. "He reminds me a lot of Torres, the Captain who called a moment ago." He adjusted his left arm in the sling.
"Healing up as expected, I hope?" Trask asked.
"Yes, I've been lucky."
"Lucky enough to have been wounded twice in the last year, you mean," Linda snorted.
"I was very disturbed to hear that you believe your law enforcement agencies have essentially collapsed, Luis," Trask said, trying to deflect what was obviously a subject of tension between Aguilar and the major's wife. "How do you hope to restore any rule of law with your police and courts so compromised?"
"I'm afraid we are beyond that in Mexico for now." Aguilar tossed back the last bit of Tequila in his glass. "You see, I do enjoy some of my country's products." He looked at Trask for what seemed to be a full minute before speaking again.
"You are both a military man and a man of the law, Jeff. The corruption of my country's legal and law enforcement communities has forced me to assume one of those roles as well as my normal military mission. My marines are now the closest thing to a police force that our people know—the only police they can trust, anyway. For a time, we tried to work with our police, but any intelligence we shared with them went straight to the cartels. We've had to assume that all the local police forces have been compromised by the money that Guzman's Federation Cartel and Lazcano's Zetas have been offering. Those that refuse the money die."
"In your talk today, you seemed to be emphasizing more of a military solution than a legal one," Trask said.
"That is exactly my point when I say we are beyond any rule of law for now. Let me ask you, Jeff. What did you think at the moment that you heard your President Bush, after the planes struck the World Trade Center, talk about bringing your enemies 'to justice?'"
Trask nodded. "I see your point. I admired his resolve, but not his choice of words. War is not a law enforcement initiative, and combat isn't a 'police action.' Our politicians seem to have lost the distinction ever since World War II."
Aguilar smiled. "I knew that you would realize the difference. We in Mexico are in the combat phase now. Our legal system was not up to the task, and so we are at war within our own borders. Only when we reach a military victory can we have real trials again, with real consequences. One must have stability and control before laws can have any meaning."
"Here's to Mexico's victory, then," Trask lifted his glass. "I hope it comes soon, for the sake of both our countries. I'd still like to pick your brain some more about the cartels, since they do seem to be a common enemy for both of us."
"You're here for two weeks?" Linda asked Trask.
"Yes, the duration of the conference. I have that active duty commitment every year so that they'll pay me some kind of retirement when I turn sixty."
"What are your plans for the weekend?" she asked him.
"The usual San Antonio sights. The Alamo—"
"Nonsense. We have a house in Zapata on Falcon Lake." She looked at her husband.
"Linda is way ahead of me as usual," Aguilar said. "There is plenty of room. We'd love for you to join us."
"If I'm not imposing."
"Not at all. We'll pick you up after the conference session on Frida
y."
Laredo, Texas
March 11, 2011, 2:14 p.m.
"I am concerned about something, my friend." Dominguez' looked down at the duffel bag, then stared hard at the broker.
They stood on the front porch of the ranch house. The Bronco was pulled in front of the house with its engine running.
"What's that, Ramón? It's all there—less my cut and the expenses. Same as always."
"It's the expenses, amigo. Surely you have noticed that they've been going up."
"Gas has been going up, Ramón. I make my driver turn in his expense receipts so he won't gouge us. I add them up and that's the figure I give to you. I just finished them before you got here."
"Do you still have them?"
"No, I shred them as soon as I'm done with the totals. Don't want to leave a paper trail in case anyone comes looking."
"The expenses are up more than the gas prices, amigo."
"I told him to take different routes going north and east. Sometimes he drives more miles. Maybe something's going on with the truck."
"Maybe. We'll check it out. Save the receipts for me next time, okay?"
"Sure, Ramón. No problem."
Zapata, Texas
4A3 p.m.
Trask and Aguilar sat on the deck of the house and looked out over Falcon Lake.
"Zapata, Texas." Trask took a sip of the cold Dos Equis. "Named for your General Emiliano?"
"Actually, no," Aguilar replied. "Another revolutionary hero, but less well known. The place is named for Colonel José Antonio de Zapata, a cavalry commander in the Republic of the Rio Grande. When Santa Anna seized central power in the 1830s, your Texicans at the Alamo weren't the only ones who tried to secede from Mexico. There were also secession efforts in Zacatecas and the Yucatán, and here along the river. Colonel Zapata was unfortunate enough to suffer the same fate as your Colonels Crockett and Travis. He was defeated by Santa Anna's forces. He actually survived the battle, but was executed afterward."