A Conflict of Interest (11 page)

Pavin walks over to our table and hands me a sheaf of papers. “The indictment,” he says casually.

This is the first time I’ve actually seen Christopher Pavin. Based on the fact that no one had heard of him, I’d assumed he was only a few years out of law school, but he’s clearly older than me, and likely more than forty. He moves with a military bearing, and I seize upon that as the explanation for where he spent the period between college and law school, even though I know that’s probably not the case. Nevertheless, he certainly looks like a former military man—broad shoulders, short-cropped sandy colored hair, and a strong chin. He’s handsome, which is never good for the defense, with clear blue eyes and an easy smile.

“Thanks,” I tell him, and immediately regret it, like you do when you thank a cop for handing you a speeding ticket.

The indictment is over twenty single-spaced pages. From my quick perusal, it seems that aside from listing the statutes the government claims Ohlig violated—which are the same seven counts that I would have guessed they’d go for—the indictment doesn’t give any clues as to the evidence they have on him. It’s based solely on Agent McNiven’s “information and belief” that the criminal statutes listed have been violated, which means that, based on the evidence McNiven’s reviewed—which is likely limited to the documents we produced and interviews with low-level OPM employees—he’s concluded Ohlig violated the law.

Out of the corner of my eye, I see Ohlig enter the courtroom. Agent McNiven is a half step behind him, but because his head barely reaches
Ohlig’s shoulder blades, I don’t realize he’s there until they’re both well inside the room.

I’ve always thought you can tell a lot about a man by the way he wears handcuffs, especially in public. Some appear like snarling animals, as if the moment they’re unshackled they’re going to go right for the throat of their captor. Others look exactly the opposite, like broken men; restrained or not, they couldn’t muster the strength to be dangerous.

Ohlig acts as if he’s entering a charity benefit with the handcuffs as some exotic yet elegant accessory.

As promised, McNiven uncuffs Ohlig as soon as he delivers him to counsel table. A second FBI agent—one much younger and much larger—is going to stand behind us during the proceeding. He’s the one charged with making sure Ohlig doesn’t try to escape. McNiven takes his place next to Pavin at the government’s table.

The judge’s courtroom deputy, a man who looks a little like Eddie Murphy, knocks hard three times on the wood molding of the door leading to the judge’s chambers. “All rise,” he commands.

I had forgotten just what a little man Judge Liebman is. In his robe, he looks like a kid wearing a Halloween ghost costume, except for the fact that he’s cloaked in black and as wrinkled as a sharpei. It takes him longer than I can ever recall a judge taking to walk the fifteen feet from the doorway to his chair. When he’s finally sitting, he allows everyone else to do the same.

The deputy bellows: “The United States of America v. Michael Louis Ohlig. Counsel, please state your appearances, starting with the government.”

“If it pleases the court, Assistant United States Attorney Christopher G. Pavin for the United States of America. With me at counsel table, your Honor, is Special Agent Gregory McNiven of the Federal Bureau of Investigation. Thank you, your Honor.”

Judge Liebman nods in my direction, signaling it’s my turn to rise. “Good morning. My name is Alexander Miller of the law firm Cromwell Altman Rosenthal and White. I am joined here today by my colleague, Abigail Sloane. We represent Michael Ohlig.”

“Very good counsel. Please, both of you be seated. And welcome,
Mr. Ohlig.” Judge Liebman speaks in a squeak that makes him almost impossible to hear. “Waive reading?” is what I think he says next.

The defendant has the right to have his charges publicly aired, but all defendants waive reading of the indictment as a matter of course. The very idea of sitting through the clerk reading aloud a five-thousand word document is about as unbearable as any torture I can imagine.

“The defense is willing to waive reading of the indictment,” I say.

“Mr. Miller, would your client like to enter a plea at this time?” Judge Liebman asks next.

Ohlig rises and we’re standing shoulder to shoulder. It’s time for him to say the only words I told him he could utter at this proceeding.

“Your Honor,” Ohlig says in a strong voice. “I am not guilty.”

Judge Liebman shows no reaction to this, nor would I expect him to. “Would the government like to be heard on the question of bail?”

“We would, your Honor.” Pavin has a very formal way about him in court, which is not surprising given he’s very formal out of court too. He ends nearly every statement with the phrase
your Honor,
which is just as annoying as ending every phrase with the name of the person you’re addressing.
I agree, Bill. We’ll meet at two, Bill. At that restaurant on Madison, Bill
.

“The government has discussed the issue of bail with defendant’s counsel, your Honor, and we jointly make the following recommendation: that your Honor impose bail in the amount of $15 million, to be satisfied by a bond of at least ten percent cash or its equivalent in real estate. Mr. Ohlig has agreed to surrender his passport and we request your Honor impose, as a condition of bail, that he not be permitted to travel outside his home state of Florida, other than to come to New York to meet with his counsel. Thank you, your Honor.”

“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.”

J
ust 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.