The Cornbread Mafia: A Homegrown Syndicate's Code of Silence and the Biggest Marijuana Bust in American History (58 page)

"You want to go get a cup of coffee around the corner?" I ask.

"No, I'm just here to give you this," he says and hands me several folded pages stapled together on US District Court letterhead: a subpoena.

I take it, look it over. He stands there casually.

"So, you're not from the Kentucky office?"

"No, I'm from the Eastern Division," of New York, he means. Brooklyn. "I have a few of these to give out today. I don't even know what it's for."

"Oh," I say, trying to engage him, "it's because I'm a journalist and a known associate of a federal fugitive."

He nods, shrugs and leaves, completely uninterested.

That same morning, an ice storm of historic proportions encases the Commonwealth of Kentucky like that Alberta Clipper did once to Johnny Boone's Minnesota marijuana crop. By the end of the day, 700,000 Kentucky households are without power, more than three-quarters of the commonwealth's 120 counties are declared disaster areas, and twenty-six lives are lost in the worst natural disaster in modern Kentucky history. Marion County is one of the worst hit, with nearly 90 percent of the residents without electricity in the blistering cold; Lebanon's water supply shuts down because the pumping station at the reservoir freezes over. Meanwhile, I need an attorney, a good one, in Kentucky, on short notice.

So, Wednesday morning I call Jack Smith. Even though it has been more than a year since we last spoke, he recognizes me immediately. He knows my family. His mother had been a long-time customer at my father's grocery store; she would come in every morning for a copy of the When she died, my father brought a final copy of the newspaper to the funeral home. Touched by the gesture, one of her sons put the newspaper on the closed casket for the funeral the following day.

When Jack Smith took his seat at the front row at the cemetery, he saw the newspaper tucked under a spray of flowers on the casket lid and leaned over to his brother to ask, "Why the hell is that newspaper there?" His brother told him that Jimmy Higdon had brought it the day before.

So, that's why Jack Smith knows who I am when I call and why he sounds sincere when he asks how I'm doing, even though at that moment he is staying in a hotel with his wife, son, pregnant daughter-in-law and two grandchildren because the ice storm has cut power to his house.

"I got subpoenaed yesterday,"I say. I don't need to tell him about what or regarding whom.

"When's your court date?"

"Next Tuesday."

"OK, I'll go there with you. If any more law enforcement talk to you, don't answer anything and tell them that you've retained counsel."

I relax a little. He tells me he will make some calls and see what's going on and tells me to check in with him in a few days, but it's Sunday before we speak again. I tell him I'll see him in his office tomorrow.

The next morning, Monday, February 2, I wake up at 5 a.m., take a taxi to LaGuardia and board a nonstop flight to Louisville, paid for by the taxpayers of the United States. At 10:00, I land and go to the Brown Hotel, one of the most exclusive hotels in Louisville. The Gilded Age lobby is crowded with utility workers-men in hard hats and work boots, with gear slung over the shoulders of their Day-Glo hoodies. These emergency work crews have overtaken several floors of the Brown because the upscale hotel is one of the few places in town left with vacancies. I check in at the desk, and the clerk hands me a key-card for a club-level room with a king-sized bed and terrycloth bathrobes in the closet. Thanks, taxpayers.

The US marshals and the US Attorney's Office have photos of Johnny Boone in a tropical location, and they know that I took them. They want me to tell them where that location is, but doing so will reveal the identity of a confidential source, so I prepare to not answer those questions, which will result in a contempt of court citation and up to eighteen months in federal prison. But wait! Don't journalists have a right to protect their sources? Nope, not in federal court they don't. In 1972, the Supreme Court ruled against reporters protecting their sources in court in Branzburg v. Hayes.

Paul Branzburg worked for the the late 1960s and wrote two stories about marijuana in Kentucky-one about two hippies making hash in Louisville and another about cannabis use in Frankfort, including allegations of a pot deal inside the state capitol building itself. When a local prosecutor subpoenaed Branzburg to identify his sources, Branzburg refused. When the Supreme Court ruled against him, Branzburg never returned to Kentucky. After the Branzburg ruling, each of the eleven federal appeals courts set its own precedents for reporters' rights. I discover that the Sixth Circuit, which includes Kentucky, has a long history of being unfriendly to members of the press, which therefore grants me little if any protection against this sort of subpoena.

The Bush administration subpoenaed sixty-five journalists between 2001 and 2006, at a rate of about one per month, but the Bush administration is over. How will this game play out under Obama? Because I am the first journalist subpoenaed during the new administration, a fact confirmed to me by the Society of Professional Journalists Legal Defense Fund committee chairperson, to find out Obama's policy toward freedom of the press will be to discover my own fate.

I leave the Brown Hotel and head for Jack Smith's office on the north side of downtown, where I meet with Jack and his son, Trevor, who became an associate in his father's law practice after a punk-rock phase left a tattoo on his knuckle. The following day, Trevor's wife is due to deliver their third child, but Monday is a day for discussing strategy and potential outcomes of my current situation. First Jack Smith wants to know if I plan on pleading the Fifth, and I wave him off.

"I haven't witnessed any criminal activity," I tell him. "And I certainly haven't participated in any."

"Good," Smith says, leaning back in his chair. I tell him I want to plea the reporter's privilege of the First Amendment, and he nods supportively.

"We're going to have to do some research on this," Smith tells me from his side of the conference table.

"It's OK," I say. "I have it for you right here," as I hand him a twelvepage digest of the Sixth Circuit's opinions and precedents regarding cases that cite the First Amendment, not that any of them do my case any favors.

"Let me take a look at that subpoena," Smith says, and I hand that over, too.

He looks to see what they are charging Johnny Boone with. Jack Smith knows that the government has already indicted Boone once in absentia for the plants, so this indictment is for what? According to the subpoena, "Title 18, United States Code, Section 1073."

"We'll have to look that up," Smith says.

"You don't have to. I already did," I say. "It's `unlawful flight to avoid prosecution."'

"Yeah, that's what I thought," Smith says. "UFTAP, we used to call it. You see, when I came back to Louisville from Washington, D.C., in the late seventies, I was the first assistant US attorney. The US attorney was about to retire, and I was going to take his place as US attorney for Carter's second term. So, there was this cop-killer loose down in Nelson County, in New Hope, who they ended up killing over in Indiana . . . "

"Graham," I say, remembering the cop-killer's surname from my research into the seventies-era criminal history of Kentucky.

"Yeah, that's right," Smith says. "Anyway, the FBI agent came up from Elizabethtown, and he and my boss went out to lunch. Before he went out, my boss handed me an indictment against Graham that he intended to file after lunch and asked me to look it over for him. So, that's what I did.

"The indictment was for an UFTAP charge, and when I looked it up, it said that charging UFTAP for alleged crimes required the direct approval of the attorney general. So, when they came back from lunch, my boss asked me if I looked over it.

"`Did you look over this?' he asked me.

"`Yessir,'I said. `But do you know that this charge requires the approval of the attorney general?'

"`Yeah.' He didn't want to admit it, but he did.

"`Well, did you ask for it?'

"`No,' he said. `If I did that, he wouldn't have given it to me!

The point of Smith's story is that the basis for this second indictment against Johnny Boone is weak, even unlawful. We don't plan any tactics based on this information just yet, but it's something we have on our side. Smith calls the assistant US attorney assigned to the case, John Kuhn, to tell him we want a hearing with the judge before my scheduled grand jury appearance tomorrow.

"John, listen," Smith says. "We're going to file a motion to quash this thing based on-"

"the Fifth?" Kuhn says, interrupting. "Is he going to plea the Fifth?"

"No, we're going to be pleading the First, John," Jack tells him in a calm and reassuring tone.

The conversation goes back and forth, and I hear Kuhn say "obstructing," which I'm getting accused of a lot lately. After the phone call, Jack asks me what I want to do if it looks as if I am headed toward a contempt citation and looming jail time.

"Let's go all the way then," I say, managing a smile. "If they want to throw me into the briar patch, it'll do wonders for my career."

"Good. I'm glad you feel that way," Jack says. Trevor talks to me a bit about how federal prisoners get processed and which facilities I am likely to end up in. These are details I can't focus on, and I let them wash over me without listening too closely. At the end of our meeting, Jack tells me that he and Trevor will draft a motion to quash and tells me to meet them at the courthouse in the morning.

With my legal needs taken care of, I meet my mother, sister and nephews-David, five, and Dawson, three-for lunch at Lynn's Paradise Cafe, a southern-style comfort food restaurant with mismatched lamps and plastic animals on the tables. My mother and sister talk on one side of our table while I play with plastic butterflies and horses with Dawson on the other.

As we wait for our food, Dawson talks to me.

"You're going to miss your plane tomorrow," the three-year-old tells me.

"What did you say?" I ask him.

"You're going to miss your plane tomorrow," he repeats for me, his big eyes looking straight into mine, a broad smile on his round face. I look over at his mother and at mine to see if either heard him.

"Did you hear what Dawson just said to me?" I ask them; they haven't. "What did you tell them about why I was down here?"

"Just that you were coming in for a meeting," my sister says, "and flying out tomorrow."

"Well, Dawson doesn't think I'm flying out tomorrow," I say while thinking to myself. This toddler just predicted my imprisonment. How am I supposed to feel about something like that?

That night, from my club-floor room at the Brown Hotel, I e-mail friends and former classmates from journalism school to prepare a phone tree and a system of communication in the near-certain event that I will be in federal custody within twenty-four hours. I write the telephone numbers for Jack Smith and the switchboard on my right forearm with a Sharpie.

Across the street from the Brown, I discover that the bartender at the Bluegrass Brewing Company is Gordon Bramel, son of John Bramel, former editor of the Lebanon Enterprise, and younger brother of Zachary Bramel, my friend since sixth grade. I tell Gordon I might be going to federal prison for eighteen months tomorrow, and he pours me a few pints.

The next morning I put on a white shirt, a black necktie and a gray suit, to which I affix an American flag lapel pin, the post-9/11 symbol of authoritarian obedience, in an attempt to thwart any first impressions of me as some sort of fugitive-loving obstructionist. I eat breakfast at the hotel, then walk the two blocks in the cold past the office to the courthouse, where I meet Jack and Trevor Smith in the lobby. Jack tells me that our judge will be Charles R. Simpson III, which Jack says is "good news" because the magistrate judge they originally scheduled us to see is a retired police officer.

"But, Jack," I say. "Isn't Judge Simpson the one who sent the Bicketts away?"

"Yeah,"Jack says. "I think that's right."

If this were a novel, I think, it would make sense that all these characters come together at the end. As I think about being at the mercy of the judge who sentenced the Bickett brothers to fifty-five years of prison between them, I remember that Johnny Boone once told me that Judge Simpson had been good to him. Not long after Jeff Boone's suicide in 2001, police caught Johnny at a gas station with a bagful of joints and a handgun in his truck-clear parole violations, which sent him before Judge Simpson. But Boone says that Simpson got him in and out as quickly as possible. Boone often cussed certain sorts of police officers, but he just as quickly acknowledged when good officers of the law did things the right way, and he approved of Judge Simpson.

When the elevator opens on the sixth floor, we pass a security checkpoint manned by two relaxed marshals.

"You don't have to give us your cell phones," one tells us, "as long as you turn them off."

We walk through the metal detectors and down the marble corridor to a door with a ten-pound brass plaque that reads JUDGE SIMPSON. Inside the green carpeted room sits the receptionist behind her desk, a flat-topped marshal leaning against it and John Kuhn: a federal prosecutor of average height with a neatly trimmed brown beard flecked with gray, glasses and a double-breasted navy blue pin-stripe suit. Kuhn seems anxious as we enter; he won't make eye contact with me.

Kuhn grabs his boxy briefcase and waves Jack and Trevor Smith back into Judge Simpson's inner sanctum, where they stay for what seems like an hour. At some point a court reporter dashes in with her little typing machine on a tripod. Meanwhile, I sit outside on a leather chair, making small talk with the receptionist and flat-topped marshal. I hear a burst of laughter coming from Judge Simpson's chambers-the result, I later learn, of Jack telling his UFTAP story.

Inside the judge's chambers, Kuhn dismisses as absurd the notion that I qualify as a journalist or for protection under the First Amendment. Jack and Trevor, capable as they are, don't have a precise knowledge of my work history and education, so they aren't prepared to answer that threshold question. In any event, Judge Simpson shuts the door on it, saying that even if I do qualify as a member of the news media, I still am not protected from testifying before the grand jury. Therefore, he denies my motion to quash.