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When the Devil Whistles

Abingdon Press

Connor Norman loved a good fireworks show. He especially liked the ones that took place once or twice a year in the conference rooms at the California Department of Justice. Some executive or general counsel whose company was under investigation would come in for a witness interview, would lie, and would get caught. Then Deputy Attorney General Max Volusca would go off and the show would start. DAG Volusca did not suffer liars gladly. Fools he would tolerate, often longer than Connor. But if Max felt he was being misled, he soon lived up to his nickname, "Max Volume."

Connor didn't mind it when Max got loud. In fact, he liked the DAG's outbursts because they usually rattled whoever was sitting across the table from him. And that usually meant more money for Connor and his qui tam clients. A qui tam plaintiff is a whistleblower who sues on behalf of the government and gets a cut (generally 15-20 percent) of whatever the government recovers. Better yet, if the Department of Justice likes a case, it takes on the lion's share of the work. Envious defense counsel sometimes complained to Connor that he wasn't really litigating these cases, just riding a gravy train driven by DOJ. Though Connor never told opposing lawyers, the real fun wasn't the train ride so much as tying corporate criminals to the tracks in front of the engine.

Today, Connor's client was Devil to Pay, Inc., a shell company he had created to bring qui tam lawsuits while protecting the identity of its owner. Most contractors assumed that Connor was the force behind Devil to Pay and that he recruited new whistleblowers for every lawsuit. In fact, all those suits were the work of a single woman: a professional whistleblower named Allie Whitman.

The corners of Connor's mouth twitched. Allie was probably the most widely hated and feared woman in California's government contracting industry, even though no one knew she existed.

The person who probably hated Allie most at this particular moment was Hiram Hamilton, the CEO of Hamilton Construction. He was sitting at a cheap wood table in conference room 11436 at the San Francisco office of the California Department of Justice, where he was being grilled by Max Volusca.

Connor sat next to Volusca and let him do all the talking. While the DAG asked questions, Connor watched Hamilton and the brace of lawyers who flanked him. One of the lawyers was Joe Johnston, Hamilton Construction's general counsel. The other was Carlos Alvarez, a high-priced defense lawyer with a reputation for playing hardball with the government.

Hiram Hamilton was a gregarious, open-faced man of about fifty-five who smiled a lot when he spoke. But Connor suspected those traits were the result of practice rather than character, and that raised warning flags. In his experience, men who tried to appear candid rarely were.

"So, how many cost-plus state contracts has your company bid on over the past ten years, Mr. Hamilton?" Max asked.

"I don't remember — at least two dozen."

"And you do know what cost-plus means, right?"

"Sure," Hamilton said with a nod and a genial smile. "It means the contract price is my cost plus an agreed percentage of profit."

"Has your company ever inflated its costs in order to get a higher profit percentage than your contract allows?"

"No, of course not," the witness replied without letting his smile waver.

Max stared at him in silence for several seconds. "Do you or do you not realize that you're under oath, Mr. Hamilton?"

Alvarez grimaced and stirred. "Look, Max, we're trying to be cooperative and give you the information you want. There's no reason to badger my client."

Max kept his eyes on Hamilton. "Are you trying to be cooperative, Mr. Hamilton?"

"I ... uh, sure."

"And provide the information requested in the state's subpoena?"

"Absolutely. We gave you everything you asked for."

Here we go. Connor glanced at Max. The DAG's face had darkened and his bull neck swelled against the collar of his white dress shirt.

"Then WHY didn't you give me these?" Max demanded, his voice rising several decibels as he thrust a stack of photocopied documents at the witness.

Hamilton's grin vanished and his eyes widened. "I, I ... I'm not sure what these are."

"Really? Take a good look at them." Max leaned forward and pointed at the stack with an accusatory finger.

Hamilton flipped through the documents in silence for half a minute as Alvarez engaged in a staring contest with Max. Hamilton looked up again. "These look like the invoices backing up our costs for the work on the DMV building in Oakland," he said with strained nonchalance. "We gave you all of these already."

"No, you gave me FAKE invoices for that project! Invoices that had been doctored to make the numbers in them match the numbers you reported to the state," Max shot back. "These are the REAL invoices."

Alvarez put a hand on his client's arm to signal him not to respond. "I object to this harassment, and I'm not going to let it go on any longer. We came here in good faith to answer questions, not listen to you shout at Mr. Hamilton. If you can't behave civilly, we're leaving."

"Before you do, make sure to write down Mr. Hamilton's shirt and pants size."

"What? Why?"

"So we can have an orange jumpsuit waiting for him the next time we meet."

"This is outrageous!" Alvarez stood up and his client and the company's general counsel followed suit. Max also hefted his sizable bulk upright, his face now beet red. Connor stayed seated, letting his body language say that he was staying out of the fight. At some point, he might need to play "good cop," and it didn't hurt to start telegraphing his reasonableness now.

"It's outrageous alright!" Max rejoined, his voice now at near-bullhorn level. "This is a civil investigation right now, but if you and your client aren't real careful, there's going to be a criminal referral. Giving false evidence during an investigation by the Attorney General is a felony under Penal Code section 132."

Connor fought back the urge to smile as his ears rang. Max Volusca only hauled out section 132 when he was really mad. It was the legal equivalent of the old belt Connor's father had kept in the back of the hall closet to threaten particularly incorrigible sons. He almost never used it, but its mere appearance worked wonders of attitude adjustment.

Alvarez jammed papers into his briefcase. "I'm not going to dignify that with a response!"

Max put his fists on the table and leaned forward. "Yeah, well I'm going to dignify it with an indictment!"

Hamilton and his lawyers packed in frosty silence for half a minute. Then Alvarez grabbed the stack of photocopied invoices.

"What do you think you're doing?" demanded the DAG.

"These are company property," said Alvarez as he shoved the invoices into his briefcase. "And I am reclaiming them."

"No they aren't, and no you're not!"

Alvarez ignored Max and walked toward the door, trailed by Hamilton and Johnston. Max pushed a button on the speakerphone on the conference room table. "Ruby, there are three men leaving conference room 11436. Ask security to arrest them and search them for stolen state property."

"Yes, Mr. Volusca," said the receptionist in a bored voice.

Hamilton and his lawyers stopped in the conference room doorway. "You can't be serious," said Alvarez.

"Go downstairs and find out," said the DAG. "I hope you brought your toothbrushes."

Alvarez's face turned the same shade of crimson as Max's, but he reached into his briefcase, pulled out the documents, and slammed them down on the conference room table. "You are nothing but a schoolyard bully," he said through clenched teeth.

"No, I am the state of California," Max thundered, "and I hit a lot harder than any bully you ever met! And I promise you that I will absolutely DESTROY you and your client unless I start getting REAL cooperation REAL fast!"

Alvarez opened his mouth, but Johnston spoke first. "Look, let's all take a deep breath and try this again. You've got questions about Hamilton Construction's billing practices and we want to answer them. If there's a problem with the documents, just send us a letter and we'll look into it. You mentioned the Oakland DMV project — were there any other contracts you'd like us to, um, take a second look at?"

"ALL of them!" The DAG turned his glower to the company's general counsel.

"Okay. All right. We'll do that," replied Johnston in the placating let's- fix-this tone Connor had come to expect from GCs caught in a fraud investigation. "Did you have any more questions for Mr. Hamilton? He is the company CEO and doesn't spend much time with the accounting paperwork, so I don't think he'll be able to help you much on this point. Was there anything else you'd like to ask him about?"

"Yes," said the DAG in a calmer tone, "but let's wait until this document problem has been solved. I also strongly suggest that you talk to your client about the importance of being completely candid in his dealings with DOJ. I wasn't kidding about the criminal referral."

"I understand." Johnston nodded as he spoke. "Hopefully once we've got this document issue nailed down, there won't be any need to discuss referrals."

Hiram Hamilton and his lawyers packed up and left a few minutes later. Hamilton had begun to recover his composure and had forced his habitual smile back onto his face. But large rings of sweat adorned each armpit of his suit coat and he wiped his palms on his pants at least once a minute.

Once they were alone, Max stretched, sat down, and turned to Connor. "So, what did you think?"

"I was watching Hamilton, and he didn't look angry or surprised when you brought up orange jumpsuits. He just turned pale. And when you put that stack of invoices in front of him, I got the impression that he was shocked to see them but not shocked by your description of what was in them."

Max nodded. "He was in on it. I went into this thinking we might be looking at some low-level guy trying to boost his revenue numbers by ripping off the government on one or two contracts. But if the CEO is in the loop, it goes way beyond that."

Connor nodded. "And they're desperate to know what we know. First, Alvarez tried to walk out of here with your documents. Then Johnston tried to get you to give him a list of the projects you're looking at."

Max leaned back in his chair and stroked his jowls. "Good point. That's another reason to think this isn't limited to the Oakland DMV building. Plus, this guy Hamilton really ticks me off — sitting there grinning and making noises about how cooperative he's being, and the whole time he's lying through his teeth. I love hammering guys like that."

Connor smiled. "And we're happy to help in any way we can, Max. Any way at all."

Allie Whitman coasted her snowboard to the end of the Gunbarrel run at the Heavenly resort in Tahoe. She rode the board until it came to a dead stop. She sighed and popped it off. The last run of the day was always a little bittersweet.

But by the time she was on the bus she had stopped missing the snow and started looking forward to the casino. She wasn't much of a gambler, but the casino had a great nightclub and cheap drinks. Plus, Erik would be there waiting for her. She smiled and leaned back into her seat as the bus pulled out of the parking lot.

Twenty minutes later, she walked into her room and was greeted by the sight of Erik dressed for a night out — though that was more or less how he always dressed in the evening. After all, he was the lead singer in a band that was "on the edge of a big breakthrough" (and had been for five years) and needed to keep up appearances.

His handsome, angular face broke into his trademark brilliant smile. "Hey, babe, how were the slopes?" he asked as she stowed her gear in the closet.

"Sweet — best boarding of the season." She eyed the outfits hanging in the closet. Erik had on black pinstripe pants with sharp creases, a white shirt, and a black silk vest, so she needed to be a little more dressed-up than she had anticipated. The best she had was a gold minidress. She held it up. "What do you think?"

"Perfect. I managed to get us a VIP booth at Vex, so you'll want to wear something with a little flash and hot sauce."

She paused for a heartbeat. A VIP booth at Vex was not going to be cheap. "Wow, are we celebrating something?"

His smile broadened. "Just that Alex called to say that he's added more gigs to the tour. We're going to be playing two more dates in Kansas. One is at Kansas State and another one's at a town near there — Salinas or something like that."

"Hey, that's great! Let me get ready and then let's grab something to eat and hit Vex."

She showered, redid her hair and makeup, put on the dress, and evaluated the results. Not bad. She'd picked up a little color on the slopes, and it worked well with her shoulder-length blond hair and the shimmery gold fabric. She also liked the way her black cat tattoo peaked out over the neckline of the dress. Just the right look — what had Erik said? A little flash and hot sauce.

Something on the top of the toilet tank caught her eye. She walked over for a closer look. It was a glass pipe half-hidden by a towel. She picked it up and sniffed. The scent of fresh meth smoke assaulted her nose. She frowned and tapped the bowl of the pipe against her palm. Erik knew how she felt about meth, and he had promised not to get high while they were on vacation. She wanted to smash the pipe on the counter or walk out and throw it at him.

But she didn't. What would it accomplish? Nothing, except to ruin what was looking like a great night out. Why focus on the negative? That only caused problems.

She put the pipe in the glass that held his toothbrush. Maybe he'd get — and take — the hint.

He was lying on one of the beds and watching TV when she came out of the bathroom. "Okay, let's go," she said, hearing a cold tone in her voice.

"Cool." He got up and was walking toward the door when her cell phone started playing "Sympathy for the Devil."

"Hey, it's my lawyer," she exclaimed as she grabbed the phone out of her purse. Sure enough, Connor's slender face smiled back at her from the cell phone screen. She liked this picture of him: he had the same intelligent, confident expression that had made her trust him almost immediately at their first meeting. It was something about his brown eyes and the way he always seemed to know exactly what he was supposed to do or say. "I was wondering when he'd call."

Erik frowned. "Just let it go into voicemail. I'm starved."

She ignored him and answered the phone. "Hi, Connor. So, how did it go? Did we have a good day?"

"A very good day. I tried calling you earlier, but you must have still been up at Heavenly. What did you think of Killebrew Canyon?"

"Loved it — perfect snow and it scared me half to death, just like you promised." She imagined being on those slopes with him, but then pushed the thought away. It could never happen, so why think about it?

"I'm glad to hear it. And glad you made it back off the mountain. When I couldn't reach you earlier, I was a little worried that you might have done some involuntary tree hugging at sixty miles an hour."

She laughed. "Yeah, I did come close to splattering myself a couple of times, but that's all part of the fun." Erik caught her eye. He pointed at his watch and glared. She realized she was getting too friendly and pulled back to safer ground. "But give me the skinny on what happened. Is DOJ going to intervene?"

Connor paused before going on in a slightly cooler tone. "They haven't made a decision yet. All that happened today was that Max Volusca and I interviewed the CEO of Hamilton Construction. He had some credibility issues that both Max and I noticed, and that seemed to irritate Max. The CEO also didn't have an immediate explanation for the discrepancy between the invoices you found and the ones they sent to the state. Also, by the end of the interview Max and I both thought that there might be more to this case than the Oakland DMV building contract. It's still early in the investigation, but overall today was certainly positive."

"Connor, is that all hypercautious lawyer-speak for 'yeah, they're probably going to intervene and it looks like there's serious money here, but I don't want to get your hopes up?'"

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Excerpted from When the Devil Whistles by Rick Acker. Copyright © 2010 Rick Acker. Excerpted by permission of Abingdon Press.
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