I was, in many ways, the perfect person for this job.
And then, over the space of a handful of days, it all came together. Chris Moody and I met with the state supreme court’s Division of Attorney Discipline-DAD-to get their blessing for my undercover role as a corrupt lawyer, a necessary protection given that I was going to be breaking laws right and left and didn’t want to lose my law license for doing so. For Moody’s part, he didn’t want my cross-examination at trial to begin with an assault on my professional ethics. And even more fundamentally, Moody needed to be sure that my testimony would be admissible. The first thing any defense attorney would do is try to exclude every recording made by me as a flagrant breach of the attorney-client privilege. We wanted to be sure that my role was clearly defined, limited as much as possible to committing fraudulent acts with Charlie Cimino, Greg Connolly, etc.-which would allow us to invoke the crime-fraud exception to the attorney-client privilege.
“Well, Kolarich, I guess you’re out of excuses,” said Moody, his way of telling me the supreme court had signed off on my undercover role.
And he was right. The federal government and I had agreed that I’d cooperate with them without an immunity deal, and the state supreme court had given the green light. The idea hit me as if it were a fresh notion, despite having dominated my thoughts for the last four days: I was actually going to do this. I was going to be a snitch for the federal government.
31
The next morning, I met Special Agent Lee Tucker in an “employees only” lounge at a hotel that was midway between my office and Charlie Cimino’s. Tucker was dressed pretty much the same as I’d last seen him, a white button-down under a blue sport coat and blue jeans. I’d told him I typically wore a suit when I went to work, and he said that would work fine, so that’s what I was wearing.
Tucker looked at his watch. “You’re late,” he said. “It’s almost eight-thirty. Okay.” He sized me up. “How you doing?”
How was I doing? I was about to wear a wire for the federal government. These guys were sinking their hooks in me and threatening me and my best friend if I didn’t play ball. Whether his question was small talk or sincere, it deserved a sincere response.
“Fuck you,” I said.
He looked at me for a moment. He was appraising me, the entire situation. What kind of a witness would I be? I didn’t doubt my importance to the operation. A lawyer could take them places they couldn’t otherwise infiltrate. He had two choices: Come on strong, with continued threats, or go easy. I figured he’d choose the latter.
Tucker opened his palm and showed me the recording device, which looked like one of those pagers people used to wear, before everyone had cell phones, only it was even thinner; it was about the size of three AA batteries strapped together with black tape. “This is an F-Bird,” he said. “Put it inside your suit pocket.”
It was even lighter than the weight of three batteries. I dropped it inside my suit pocket and didn’t even know it was there.
“This is audio only?” I asked.
He nodded. “A simple recording device. No eyes. No transmission signal.”
I didn’t know what that meant.
“I won’t be listening in, real time,” he explained. “It’s not transmitting any signal to me. I won’t know what’s said until you bring it back when you’re done.”
“And then you’ll grade my performance.”
“Don’t think of it as a performance, Jason. Just be yourself. Act like the recorder isn’t even there.”
I shot him a look.
“I’m serious. If you think about it, it’ll make you edgy. Just relax. Don’t force the conversation. Let him come to you. It might take a long time, Jason. That’s okay.”
“How do I turn it on?”
“You don’t.”
“How do I turn it off?”
“You don’t. We do those things. We start letting CI’s turn those things on and off-”
“Right.” The government couldn’t trust the cooperator to turn the recorder on and off; it would lead to claims of selective editing by defense lawyers at triaclass="underline" You turned it off when my client said something that exonerated him; you turned it on, out of context, to capture something damning. It made sense. Better to have the thing running all the time.
Tucker looked at his watch again. “Now you better get going. And next time we’re supposed to meet at eight, make it eight you show up.”
Tucker was worried about my showing up late to the meeting with Cimino, but that was already my intention. I’d been late every time I’d visited him, and I didn’t want to stray from character.
I arrived at his posh offices at a quarter past nine. One of the supermodel receptionists made me wait a good twenty minutes before she showed me back. As I followed behind her, I thought that Tucker should regret not wiring me for video.
Cimino, as always, was pacing in his airplane hangar of an office and talking on the phone. He pointed to a chair when I walked in, and I planted myself. The tiny recorder felt like a hundred pounds in my jacket pocket. I felt like a siren was going off. Every word that he and I were about to say would become part of a record. It was like having your mother in the room with you.
“When I say I’m tired of excuses, do you think I’m speaking another fucking language?” he said, as always abusing whoever was on the other end of the call. “What’s this thing you have with tardiness? I say eight-thirty, you be here at eight-thirty.”
It took me a minute to realize that he had segued from rebuking some poor building contractor to scolding me. He snapped his fingers at me. “Hey, am I talking to you?”
“Are you?”
“Yeah, I’m-okay, listen, Arthur. Are you listening? No … more. . excuses. Get it done by the end of the week or I find someone else.” He tore off his earpiece and sat down behind his desk. “And you,” he said. “You’re very aggravating, kid, you know that? People say you’re fucking smart, but you can’t tell time so good, can you?”
I had a few responses in mind, but none of them seemed appropriate.
“And I tell you to do something, you fucking do it. Are you working for me or are you working for me?”
He was referring, I thought, to my refusal to write that memo disqualifying the two bidders on the prison contract, but he hadn’t said so explicitly. I was hoping he’d elaborate. I’d love to have Charlie Cimino admit, on tape, that he’d had someone doctor the memo I had written.
I handed him the document I’d worked on yesterday at the state office. It was a memo on the prison contract with the conclusion Cimino wanted, but written by me.
He looked at it for two seconds. “What’s this?” he asked.
“That,” I said, “is a memorandum I wrote yesterday, detailing why the two bidders who beat out Higgins Sanitation for the prison contract were not ‘responsible’ bidders, and therefore Higgins should get the contract.”
“We already have one-”
“Yeah, you already had one, whoever wrote it. Who did write it, by the way?”
Cimino just stared at me, looking annoyed. Strike two for me. He wasn’t going to help me out. Listening to this tape later, Tucker and Chris Moody would probably have a nice chuckle as I flailed away.
“Well, whoever did it-it was crap,” I said. “It wasn’t convincing. You want to disqualify the bidders, that is how you do it. That’s the memo you want.”
He stared a hole through me for a while. I admit it occurred to me, a flash of panic-he knows-but there was nothing I could do but sit still, and eventually his eyes moved down to the document. He read it over, skipping to the good part. “Okay. Yeah. Yeah, this is better.” He looked up at me. “This looks better.”