Already, as I continue my cerebration, I am roughing out and then fine-tuning a scenario for my new, improved defense. This one is a whopper.
“You think this is funny?” Smog Monster says to me when I share my plan.
“No,” I say, “not funny. Amusing.”
“STRATTON! LAWYER VISIT!” the hack shouts and hands me a pass.
I walk in the attorney visiting room expecting to see Irving Berlin and hopeful for a liaison with sweet Frin. Instead, a tall, very tall, maybe six-foot-five-inch impeccably dressed criminal defense attorney greets me. I recognize him as one of the top trial lawyers in the city, maybe even in the country—certainly in the area of criminal law.
“Richard Stratton,” he says and offers me his large hand. “Ivan Fisher.”
“I’m honored.”
“Likewise.”
He turns and whisks me into one of the private cubicles.
Fisher’s hair is fashionably long and perfectly groomed, tucked behind his large, pendulously lobed ears—a sign of wisdom. Every accouterment of his wardrobe speaks of sartorial elegance, more Brooks Brothers than Brioni. The shoes are English leather. The tie is silk, muted, tied to perfection in a slim, casual knot. Intelligence bubbles from his brain in short, succinct sentences.
“You are in a heap of shit here. You know that?”
“I kind of figured.”
“My first bit of advice to you is don’t discuss your case with anyone. And I mean anyone. Other than your lawyer.”
“Got it,” I say, though I have already been sharing my plans with the Smog Monster, whom I will soon refer to Fisher.
Fisher smiles and nods. “Here’s how I fit in. That scumbag, if I may use the word, that idiot, Biff—I represent him! Thankfully, he is now a co-defendant. Previously, before I was his lawyer, he was a cooperating witness.”
“No shit.”
“Yes. DEA set him up in a phony cocaine transaction. Hammoud, Mohammed Bero’s lackey, contacted Biff once you were in custody in California, and he introduced Biff to an undercover DEA agent named McNeil, who posed as a wealthy dope dealer hoping to buy quantities of hashish, which Biff claimed to have access to.”
“Yes, I know. I met McNeil.”
“You did? When?” Fisher asks.
“Weeks, maybe a month ago. They offered me a deal, which I declined.”
“Then you know there was no hashish,” Fisher continues. “I’m not sure what Biff had in mind. He’s not saying. Perhaps he thought he could swindle this guy for some down payment cash and then rip him off. He was playing drug dealer. Biff and the agent were both posing as drug dealers. Absurd, but true. In any case, the agent offered to front him kilos of cocaine, which turned out to be harmless white powder. The moment Biff took delivery of the package, McNeil identified himself as a DEA agent. Other agents appeared and Biff was arrested. They immediately took him up to his apartment and told him, ‘Call your friend, Norman Mailer.’”
“This fucking asshole.”
“Biff did call Norman. He made a lunch date with him. And to that luncheon, Biff came wearing a wire.”
“You’re kidding me.”
“No. But here’s where it gets even more interesting. Norman said nothing during that taped conversation that would give the government any basis to charge him as a participant in the conspiracy. He admitted to knowing you, of course. He called you his good friend of many years, but said he never totally understood where and how you got your money, said he never asked and didn’t want to know. He admitted to meeting Mohammed, but said he got an unpleasant vibe from the man and left the party early. The tape of that lunch meeting, for the prosecution’s purposes, is useless; it probably has more value to the defense. The government’s reaction was to accuse Biff of tipping Norman off that he was wired. And they terminated him as a cooperator.”
Fisher’s eyes light up. He grins. Shakes his head. His hair comes unglued and falls from behind his ears. “Yes!” he practically shouts. “He failed as a rat! Can you imagine? And that’s where I come in. I am now this failed rat’s attorney.”
I love this guy. He’s a showman in a Brooks Brothers suit. He’s Perry Mason on speed.
“Now, here’s the bad … possibly good news. Your pals have all been arrested. Sammy Silver—they found him in Amsterdam, his father, and Bobby. They all made bail and are represented by outstanding lawyers with whom I am in close contact. So there are now five defendants in this case including you. And that is not a random number the government pulled out of a hat. There are undoubtedly more people they could arrest and bring into this case, and perhaps they will. But for now, for their purposes, five is the magic number. Five.” Fisher holds up five long fingers, and then points his trigger finger at me.
“Five conspirators, with you singled out as the organizer, the manager—in other words, the boss, or the kingpin. In the indictment that has just been unsealed, you have been charged under the continuing criminal enterprise statute, also referred to as 848, or CCE. Do you know what that means?”
“I’m familiar with it. Berlin seemed to think that’s where they were headed. I’ve been reading up on it.”
“Then you know there are various elements to this statute which the government must prove in order to secure a conviction. The good news is I don’t think they have ever charged a marijuana smuggler with this statute, at least not in this district. Ordinarily, it’s reserved for organized crime heroin kingpins. But all that is changing daily as the government gets more aggressive in these big marijuana cases. Nevertheless, given the circumstances, to me it smacks of prosecutorial overreaching,” Fisher surmises, and he becomes quite serious. “You do know what you’re facing? A minimum of ten years, and up to life with no possibility of parole. As well as forfeiture of all your assets.”
I nod.
He combs his fingers through his long hair. “It doesn’t get any heavier than this, Richard,” he says. “Unless, I suppose, you were facing a death sentence.”
I take a breath. It’s one thing to contemplate serving fifteen years with a parole eligibility date after serving one third of that time. But it’s a whole other world of pain to conceive of doing life with no possibility of parole. Especially when the message is delivered by someone who knows intimately the lengths and expense to which the government is willing to go to make their charges stick.
“Fuck. Life. For smuggling pot—or hash …”
“Yes, I know. It’s excessive. It’s doubtful they will go there. But you never know. So much will depend on what judge we get.”
“What about double jeopardy?” I ask. “Isn’t this like trying me twice for the same criminal activity?”
“Precisely!” Fisher yelps and practically leaps out of his seat. “I haven’t had the benefit of reading the transcripts of the Maine trial yet,” he goes on. “But this is exactly my thinking. From what I have been able to gather, you were charged with conspiracy to import and distribute marijuana.”
“No, charged only with conspiracy to possess with intent to distribute marijuana. Tried and convicted,” I say. “Sentenced to fifteen years. The maximum. No importation. No hashish.”
“Hmmm, that does add a different wrinkle. Here they are charging importation of hashish as well as possession with intent to distribute. But hashish is also cannabis, and in fact a by-product of marijuana, correct? A condensed form of the same substance?”
“It is, yes. Absolutely.”
“And we are talking about the same period of time when all this alleged criminal activity took place, are we not?”
“Yes, it was all going on simultaneously,” I concur.
“Excellent. Therefore, I believe, you should argue that the government is precluded from bringing this new indictment on the grounds that you have already been tried and convicted of in essence the same offense. The double jeopardy clause of the United States Constitution bars the government from trying a defendant—you—twice for what is essentially the same crime.”
“I’ll speak to Berlin. He is still your lawyer?”
“He was as of yesterday, though he’s looking for more money to try the new case.”
A moment of silence as we both contemplate the subject of money.
“Of course. This could be a lengthy, difficult, and expensive trial. But you seem to know what you’re doing,” Fisher says. “You could prepare and file the double jeopardy motion yourself. You really don’t need Berlin or anyone else. That might be a wise tactic. You file your motion to dismiss right after you are arraigned on the new indictment, which will probably happen as soon as next week. File your motion pro se before the district court judge assigned to preside over the case. We don’t know who that person is yet. But there will be ample time to file your motion in district court. Ask for an evidentiary hearing. Lay out the facts of both cases showing how they are all part of one overall conspiracy. Back that up with any and all case law you can find to support your argument. In particular, look for case law out of the Second Circuit, which is the appellate court for the Southern District. And any Supreme Court rulings you may find that are on point. I’ll have my office send you some citations. As I mentioned, this is fairly new legal territory we are venturing into. The CCE statute has been on the books less than a decade. And again, it’s not commonly used to prosecute marijuana smugglers. The government is using it more and more these days. In particular, they love the forfeiture clause.”
I have already been doing all of what Fisher advises. In fact, I have been drafting a double jeopardy motion and editing it with help from some of the resident jailhouse lawyers. Carmine Persico, alleged boss of the Colombo Crime Family, and himself a jailhouse lawyer of some repute, has read my draft motion and offered his suggestions.
Fisher stands. He towers over me and offers me his hand once again.
“I’m happy to help you and to advise you in any way I can,” the lawyer assures me. “I will have my assistant send you copies of similar motions for you to reference.” Fisher’s eyes light up. “This could be very interesting.”
Fisher scans the outer area of the conference room. “Now, I must confer with my paying clients,” he says and starts for the door. “Of course, you know who the real target is here?”
“They made that very clear.”
“Norman.”
A pause as we both consider the stakes.
“If we get a sympathetic judge,” Fisher concludes, “he may just throw it out.”
“Let’s hope so.”
“It’s certainly worth a try,” Fisher says and leads me from the cubicle. “Norman sends his regards. He wants to come see you. But under the circumstances, I have advised he wait until after we see how this shakes out. The government would certainly make an issue of his coming to visit with you.”
I make my way back to my cell on Mafia Row. So much to think about: continuing criminal enterprise, the kingpin statute—it’s insidiously flattering. I have never thought of myself as a kingpin. Life with no parole. For pot? That doesn’t seem possible. I never imagined such a fate. Double jeopardy. I like the sound of that, and working under the auspices of renowned criminal defense attorney Ivan Fisher. Now there is new purpose and direction to my study of the law.
AS SOON AS the 4:00 p.m. count clears, the evening-shift hack comes to my cell and unlocks the door. We call this cop Sly Stone. He’s a hyperactive wild man with greasy Jheri curls and lots of gold jewelry. It’s going to be a festive night in the rock’n’ roll jail with this hack on duty. Anything goes. Anything can happen.
I take the bed board and make my rounds, never knowing what I’m going to find as I peer in through the rectangular windows in the cell doors. One morning I came upon a humping beast of two backs, some big black guy mounting his white cellmate. Another day on my post-count rounds I found a young Dominican kid hanging by the neck from a bedsheet tied to the post of the upper bunk bed. I ran to get the CO to unlock the door, but the kid was already dead by the time we cut him down.
Sly opens the kitchen workers’ cells, and they begin setting up for the evening meal. I make sure to be hanging out near the sally port when the food cart arrives. Frin and the Colombian girl wheel the cart onto the unit. The girls look sexy in their kitchen whites altered to show off their figures. Sly escorts them in and then ducks back into the hack’s office—a closet really, just off the kitchen. I suspect he’s in there doing lines of coke. I get a quick hug and a kiss as Frin slips me a bundle.
Once Sly has opened all the cells and the convicts are lined up to get their food trays, he withdraws back into his office. He’s the ideal guard—a cocaine addict wholly owned by Ernie Boy, a big-time, mob-connected junk dealer with the East Harlem Purple Gang. There is another count at 9:00 p.m. Sly doesn’t even bother to lock us up. I make the count for him and he calls it in. He’s sweating, agitated. I don’t know what’s wrong until Ernie Boy pulls him aside, calls me, and the three of us huddle in the hack’s closet.
“What the fuck, Sly?” Ernie demands. “Where’s my fuckin’ package? You holding out on me?”
“No, no, hell no, Ernie. You know me better than that. The guy never showed!” Sly says and throws up his hands.
“What d’you mean he never showed?”
“I was there,” Sly pleads. “I waited half an hour. I couldn’t wait any longer or I’d be late for work. He never came, honest.”
“Stay right here. Let me call this fucking guy,” Ernie says and charges from the office.
Ernie makes a collect call from one of the pay phones. He comes back and tells Sly the guy got held up, but he’s on his way—now. We go down to D tier, outside Ernie Boy’s cell. Through the barred window at the end of the tier, Ernie points to a phone booth on the corner of an intersection nine floors below. “See, there he is,” Ernie says as a guy gets out of a car and enters the phone booth.
Sly’s blinking, quivering. “Wha’ da ya’ want me to do?”
“Go down there and get my fuckin’ package.”
“Ernie, you know I’d do anything for you. But I can’t leave my post. If the lieutenant comes up here and I’m gone, that’s it. It’s all over. I’m fucked. I’ll lose my job.”
“Listen to me. Lock the fuckin’ unit down and run across the street and get my package. It’ll take you five minutes.”
“No, no, I can’t.”
“C’mon, Sly. Wha’ da ya’ mean you can’t? Don’t fuck with me. I’ll give you a thousand bucks plus what I already gave you.”
“Shit, Ernie boy, what if I get caught?” Sly protests. “What’m I gonna tell ’em downstairs?”
“I don’t give a fuck what you tell ’em. Just go get my fuckin’ package. I don’t want to hear no more about it.”
Sly is tongue-tied, practically gagging.
“I’ll give you fifteen hundred,” Ernie says and turns to me. “Richie, go get the bag.”
I retrieve the bundle Frin slipped me from the food cart. It contains a pint of Courvoisier, half a dozen Cuban cigars, and fifty $100 bills—Ernie Boy’s money with which to pay Sly.
Sly shakes his head. “I can’t do it Ernie. There’s no way—”
“I’ll give you two thousand.” Ernie takes the wad of bills out of the swag bag and starts counting. “And a couple a’ grams for your head.”
“Oh, shit, Ernie, please. Don’t do this to me! You know I want to help you. But I can’t leave my post! What if the lieutenant comes up here?”
“Fuck the lieutenant. He’s a moron, too. Lock the fuckin’ unit down. Leave Richie out here. If the phone rings, Richie’ll answer and tell ’em you had to take a shit.”
I have to laugh at this. Ernie laughs, too. Locking the unit down and leaving me out to deal with any calls that might come from control or the duty officer is taking my position as unit clerk and elevating me to a whole new level.
“I can’t do it, Ernie! You know me, if there was any way—”
&nbs
p; “Okay, listen to me, you greedy fuck. Twenty-five hundred! And an eighth! My final offer!”
Sly swallows, wipes the sweat dripping from his brow. Then he bellows, “LOCK DOWN! LOCK DOWN! Everybody in the cells! NOW!”
He runs around locking the doors. “If the lieutenant comes, tell ’em … you know … I’m takin’ a shit,” he says and leaves my door unlocked.
This is insane. What, I’m supposed to just come wandering out of my cell, answer the cop’s phone, which is a shot in and of itself, a violation of the rules and regulations of the institution, as the cops like to say, and then tell the lieutenant that Sly has gone to use the bathroom? And he left me unlocked, a prisoner in charge of the unit? That won’t work. No way. I’m staying in my cell no matter what happens.
Through the barred window, I see Sly leave the building. He runs across the street to the phone booth, meets Ernie Boy’s connection, and then nips back to the jail. A few minutes later he delivers Ernie’s package: two ounces of un-stepped-on blow and a bag of Valium pills. Ernie pays Sly $2,500 cash, and we whack up the coke in my cell before Sly unlocks the unit. Ernie gives me five hundred bucks and half the coke to hold. He gives Sly an envelope with a few grams of blow and dismisses him.
“All right. Now unlock the cells and go back to your office and shut the fuck up.” Ernie pats Sly on the back. “You’re a good cop. You got a future in this business.”
Ernie laughs, shakes his head, and looks at me. “Richie boy,” he says, “do you believe this? It’s the fuckin’ Criminal Hilton all right.” And he snorts up two little mounds of cocaine.
I don’t understand why anyone would choose to do coke in jail. This is MCC, not Studio 54. Hardly a party atmosphere. I didn’t much care for coke when I was on the street. After the first couple of lines, it’s all downhill. But Ernie loves it. And then, on the other hand, there is something to be said for pretending we are somewhere else. When in the Criminal Hilton, I have come to believe, it’s best to go with the flow. When Ernie offers me the bag, I do a couple of hits. You never know what might develop.
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