Authors: James B. Stewart
Tags: #History, #United States, #General, #Law, #Ethics & Professional Responsibility
Tangled Webs (19 page)
“Peter Bacanovic never specifically told you to lie to anyone, isn’t that true, sir?”
“Not explicitly.”
“He never point-blank told you you should lie to anybody, isn’t that correct, sir?”
“That’s correct.”
“He never told you to lie to the SEC, true?”
“True. . . . He never explicitly said lie.”
“He never explicitly told you to lie to anybody, correct, sir?”
“That is correct.”
Faneuil thought Apfel was being so aggressive and such a jerk that everyone, including the jurors, would recognize it. Oddly, he felt more relaxed, more at ease.
Apfel made what he could of the drug use issue.
“And what illegal drugs did you tell the government that you used . . .”
“Marijuana.”
“Anything else?”
“No.”
“That was simply a lie, was it not, sir?”
“Did you say a lie?”
“A lie.”
“Was that a lie? No, of course not . . .”
“On December 3 of 2001, you acknowledge having used Ecstasy, right?”
“That is correct. Can I explain why I answered that way?”
“I will give you a chance. Just answer my questions.”
“Okay.”
“When you spoke this morning under oath and you were given an opportunity to say any other drugs you ever used or told the government about, you limited it to marijuana, isn’t that right, sir? Wasn’t that your answer?”
“That was my answer.”
“And it was only moments or minutes later, when confronted with an FBI interview report, that you acknowledged having used Ecstasy . . .”
Seymour objected, and the judge terminated the line of questioning. But Faneuil never got his chance to explain his answer, which would have been that during the time period he was questioned about, he answered accurately that the only drug he’d used was marijuana.
W
hen Apfel resumed his questioning on Thursday, he dropped the sledgehammer approach. He worked methodically through the critical events and Faneuil’s motives to lie, but never demonstrated that Faneuil had actually lied in his direct testimony. Morvillo began his questioning for Stewart on Monday morning. By now, having survived round one of cross-examination, Faneuil had gained confidence. Morvillo adopted a more avuncular tone. He established (and Faneuil readily agreed) that Martha Stewart had never asked him to lie. Otherwise, he covered many of the same themes. But again, he uncovered nothing new, nothing that cast doubt on the truth of Faneuil’s earlier testimony. Faneuil could hardly believe it when, just after lunch, he heard the words “No further questions.”
hen Apfel resumed his questioning on Thursday, he dropped the sledgehammer approach. He worked methodically through the critical events and Faneuil’s motives to lie, but never demonstrated that Faneuil had actually lied in his direct testimony. Morvillo began his questioning for Stewart on Monday morning. By now, having survived round one of cross-examination, Faneuil had gained confidence. Morvillo adopted a more avuncular tone. He established (and Faneuil readily agreed) that Martha Stewart had never asked him to lie. Otherwise, he covered many of the same themes. But again, he uncovered nothing new, nothing that cast doubt on the truth of Faneuil’s earlier testimony. Faneuil could hardly believe it when, just after lunch, he heard the words “No further questions.”
“Very well, Mr. Faneuil. You may step down.”
Michael Schachter handled the direct examination of Ann Armstrong. He’d just gotten to the critical events of December 27 when he asked her to describe the first phone call from Stewart that day.
“It was the first time I talked to her since Christmas, and we talked about the holidays. She had been up in Maine. I thanked her for the plum pudding that she had sent home.”
Mention of the plum pudding caused Armstrong to pause. Tears welled up.
“Now I’m going to cry.” She started to sob quietly, then pulled herself together. “I thanked her for the plum pudding that she sent home.” Then Armstrong broke down again.
The judge called a recess.
The next morning she had fully regained her composure. She testified in meticulous detail about the call from Bacanovic and the fateful message “ImClone is going to start trading downward.” But her most electrifying testimony was the account of Stewart’s attempt to erase the message, just moments after a lengthy conversation with her lawyer John Savarese.
Armstrong had provided crucial evidence for the government and damaging testimony for Stewart. Bacanovic had called and left an incriminating message that neither he nor Stewart had disclosed. In fact, Stewart had tried to erase it, and the message had been produced
after
Stewart’s testimony in which she claimed not to remember whether such a message even existed. Armstrong’s touching display of emotion on the stand also undermined any idea that she disliked her demanding boss and might be trying to incriminate her.
after
Stewart’s testimony in which she claimed not to remember whether such a message even existed. Armstrong’s touching display of emotion on the stand also undermined any idea that she disliked her demanding boss and might be trying to incriminate her.
A
s Stewart’s self-described best friend, Mariana Pasternak was obviously a risk for the government. She hadn’t wanted to testify. She had to be immunized, her testimony compelled. Still, Schachter had been elated by her grand jury testimony, however grudging. Schachter handled the questioning.
s Stewart’s self-described best friend, Mariana Pasternak was obviously a risk for the government. She hadn’t wanted to testify. She had to be immunized, her testimony compelled. Still, Schachter had been elated by her grand jury testimony, however grudging. Schachter handled the questioning.
After establishing that at the end of 2001 they’d traveled together to Mexico, Pasternak volunteered, “I remember a conversation we had, we were on a terrace, which was part of the suite, adjacent to the suite . . . we did not go down for dinner, and we were tired, and I believe it was the day when we took a hike.
“We were talking about what our friends were doing for the end of the year, and we named a few friends. I asked Martha about her friends, Martha asked me about my friends, and I said, ‘What is Sam doing?’ ”
“What did Ms. Stewart say?”
“He disappeared . . . He disappeared again. . . . I remember Martha saying that Sam was–that Sam was walking funny at a Christmas party, that he was selling or trying to sell his stock, that his daughter was selling or trying to sell her stock, and Merrill Lynch didn’t sell. That’s how I recall it.”
“What if anything do you recall Ms. Stewart saying about her own stock?”
“I recall Martha saying that his stock is going down, or went down, and I sold mine.”
“Do you have any other recollection of speaking with Ms. Stewart on the subject of brokers while you were in Mexico?”
“I remember one brief statement, which was, ‘Isn’t it nice to have brokers who tell you these things?’ ”
The judge interrupted. “I’m sorry, I didn’t hear you.”
“ ‘Isn’t it nice to have brokers who tell you these things?’ ”
“ ‘Who tell you these things?’ ”
“Yes.”
Morvillo jumped up. “Your Honor, I am going to move to strike. . . . That conversation is absolutely meaningless. It could mean anything. Therefore, it is not relevant. I move to strike it.”
“Overruled.”
The defense lawyers were apoplectic. They’d been told specifically by Pasternak’s lawyer that she wasn’t sure whether Stewart had said, “brokers who tell you things.” Now she had attributed it to Stewart–twice–without any qualification. They confronted him after trial adjourned that day, and he suggested they ask her again on cross-examination. Morvillo did his best:
“Can you tell me anything about the context of that conversation, how that one remark came up?”
“I do not remember anything about the context. I just see a scene that was somewhere on the grounds of that hotel.”
“Now, is it fair to say you are not even sure that that statement was made or whether it was just a thought in your mind?”
“It is fair to say. I don’t know if that statement was made by Martha or just was a thought in my mind.”
“And you have previously told that to the government, have you not?”
“Yes, I have. . . .”
“But you don’t remember whether that statement–‘Isn’t it nice to have a broker tell you things?’–was actually something that was said to you by Martha Stewart?”
“A statement is just a way of defining that. I would [be] much more comfortable defining that as words than a statement. It is just a string of words that I recall. . . .”
“You are not sure that the words were actually spoken by Martha Stewart or whether they were words that just are somehow embedded in your mind as one of your thoughts?”
“Exactly. I do not know if Martha said that or it’s me who thought those words.”
Morvillo moved again to strike the testimony.
“Mr. Morvillo, I think you should ask the witness what her best recollection is on the subject,” the judge suggested.
But Morvillo didn’t want to take the risk. “I am not going to ask that. If they want to ask that on redirect, they will ask that,” he replied.
Which is precisely what Schachter did. “Ms. Pasternak, you stated that you were not precisely sure whether this was something that Martha Stewart said or something that you thought.”
“Yes.”
“You said that your belief was that Ms. Stewart said it?”
“Yes.”
“What is your best belief, sitting here today?”
“That Martha said it.”
“I have no further questions, Your Honor.”
Morvillo jumped up. “Is that a guess?”
“The recollection is extremely vague. All I remember are–a string of words. I remember looking at Martha. While those words appeared, I do not know if Martha said them or I said them, but I believe Martha is the one who said them.”
“Still, as you sit here now . . .”
“Yes.”
“You really can’t remember precisely whether she said it or whether you just thought it?”
“I cannot remember precisely. My best guess–my best belief is that she said it.”
But whether Stewart said the statement, or whether Pasternak thought it, hardly mattered. If Pasternak had such a thought, what could have prompted it other than an admission from Stewart? Far more incriminating was the evidence–uncontested by the defense–that Stewart told Pasternak that ImClone was going down and the Waksals had sold or were trying to sell their shares. On the date of that conversation in late December 2001, the Waksals’ ImClone trading was not public knowledge. Unless Faneuil told Stewart, and Stewart told Pasternak, how could Pasternak know that?
Schachter tried to avoid looking at the spectators in the courtroom, but one day he noticed that Rosie O’Donnell was glaring at him, and later waved her finger, motioning him over. He shook her hand. “Do you have children?” she asked him.
“Yes.”
“Do you want them to grow up knowing you as the man who took down Martha Stewart?”
O
f Faneuil’s many friends, the prosecution settled on two: Zeva Bellel and Eden Werring. Rob Haskell was on deck if necessary, but never called, even though he could corroborate almost everything Faneuil had said. Seymour didn’t want the jurors distracted by a gay relationship, and also worried about how they would interpret Haskell’s own involvement. His phone call to Bacanovic urging him to “do something for Doug” as well as his advice to Faneuil to keep silent brought him perilously close to the conspiracy himself.
f Faneuil’s many friends, the prosecution settled on two: Zeva Bellel and Eden Werring. Rob Haskell was on deck if necessary, but never called, even though he could corroborate almost everything Faneuil had said. Seymour didn’t want the jurors distracted by a gay relationship, and also worried about how they would interpret Haskell’s own involvement. His phone call to Bacanovic urging him to “do something for Doug” as well as his advice to Faneuil to keep silent brought him perilously close to the conspiracy himself.
Bellel and Werring were young, attractive, articulate, and well educated, Bellel at Vassar and Werring at Yale. Like Seymour, they also helped redress any perception that a group of men had ganged up on an attractive, successful woman defendant.
Bellel described her visit to Faneuil over New Year’s 2002 and described him as “obviously very upset about something that had taken place at work.”
“He said that he had a very busy morning and that it was very stressful, that he, you know, was fielding all these calls, and that he succeeded in getting his boss on the phone and asked him what he should do at that point. And his boss said, ‘Please call Martha Stewart and let her know about Sam Waksal’s family and himself selling their shares in ImClone.’ ”
“Did he tell you anything–did Mr. Faneuil tell you anything else in that conversation?”
“He said he asked his boss, ‘Can I do that? Is that OK?’ And his boss responded by saying, ‘It is not a question of whether or not you can do it or not, just do it.’ ”
In a second conversation, several days later, just before she returned to Paris, Faneuil told her “that he had a conversation with his boss, Peter, basically trying to elicit some kind of direction from him about how to handle himself during the SEC investigation, and he was looking for advice, he was looking for support, and said, you know, what–what happened? What’s going on? Why are they interested in the sale? And Peter responded very firmly and very forcefully and said: ‘Listen, nothing happened. There was nothing wrong with the sale. This is how it all happened. End of story.’ And he told me he was at a loss. He felt totally abandoned, betrayed and frightened, because he knew very well that what Peter had just described as the sequence of events that took place that day leading up to this sale was totally inaccurate.”
Apfel made no headway on cross-examination and Morvillo asked no questions.
Werring was even more succinct.
“What, if anything, did Mr. Faneuil tell you about his job?” Seymour asked.
“He was–I remember I was in the apartment and he came in with Rob and he was very stressed out and he said that something had happened at work. And that he had had to lie for his boss.”
“No further questions, Your Honor.”
Richard Strassberg attempted to shake her memory in cross-examination until the judge stepped in.
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