Mark’s phone beeped. Text message: "Go." He picked up his newspaper, shouldered his backpack and walked out of the Starbucks, joining the other Newark commuters streaming to Manhattan. The station was three blocks away, departure in five minutes.
Shuffling through the turnstile, he scanned the platform. No transit cops in sight. He boarded the train looking left and right, once each. He took a seat and occupied himself with his newspaper, pretending to read about the mayor’s latest public safety concern, a new Homeland Security program, the UN’s current global warming consensus. He left his backpack untouched on the seat beside him.
Entering the tunnel, he began to relax. The riskiest part of the journey–boarding the train–was behind him. Maybe the feeling of dread that had dogged him since the middle of the night had just been nerves.
Twenty-five minutes later the train came to a stop at Penn Station. Passengers stood in anticipation of disembarking, but there was a delay. That happens sometimes, he thought. Doesn’t it? He strained to see beyond the windows onto the platform, but the interior lights were reflecting off the glass. His dread returned.
The doors opened, and the passengers filed off the train. But instead of scattering, they were funneled in one direction by metal barriers and a phalanx of police officers wearing a variety of uniforms. This was a joint operation involving several agencies and jurisdictions.
At about mid-train, the metal barriers gave way to a security checkpoint consisting of three lanes with descending levels of scrutiny. Those assigned to the left lane went through a metal detector and their bags were x-rayed to reveal all contents. In the middle lane, the commuters were subjected to a pat down, and a few were pulled aside for a search of their bags. Those in the third lane were walking out scot free–no search of any kind. The bulk of the commuters were directed to this last line, maybe in the interest of expediency.
Mark’s head began to pound. What could he do? He had already stepped off the train carrying the backpack. There was nowhere to stash it. Asking someone else to carry it was out of the question.
He willed himself to remain calm and reviewed the facts: First, the odds were in his favor; only a fraction of the bags were being searched. Second, his appearance was calculated to ward off suspicion. Third, there were always distractions.
His concentration was broken by the voice of a disgruntled woman ahead of him in the crowd.
"What’s going on?"
"Just a routine security inspection, ma’am," answered the TSA agent in charge of sorting people into lanes. He smiled tightly at the woman.
She wasn’t satisfied. "But we’re not getting on a plane. We’re not even getting on a train." He directed her to the first lane: pat down and bag search.
A man spoke up. "This is a free country," he asserted feebly. The sorting officer sent him to the first lane.
A young man started videotaping the scene. Three city police officers surrounded him, seized his camera and hustled him off to a more private location. Mark never saw him again.
The nascent grumbling quieted. There was a pause. Then another woman spoke up. "Search me. I don’t have anything to hide. I appreciate the government’s efforts to keep us safe." She stepped to the first lane of her own accord. Light applause rippled across the crowd, encouraging two others to volunteer for the most intrusive search. Mark nodded judiciously.
The officer in charge raised his hands and patted the air in front of him.
"Settle down," he said indulgently, head tilted, eyes half closed. Now his smile was relaxed. Mark relaxed, too, recognizing that between the dissenters and the volunteers, his odds were improving.
The line advanced. Mark kept his eyes directed to the middle distance. He neither smiled nor frowned. He did not speak. He made no eye contact until glancing at the sorting officer just before he pointed him to the third lane: scot free. Outwardly stoic, inwardly ecstatic, the adrenaline rush made him giddy. But he maintained his composure, walking neither quickly nor slowly through the checkpoint. He passed the last officer, and his whole being hummed with joy.
As he ascended the steps to the street, a cool, brisk breeze caressed his dark beard, tugged at his kaffiyeh, and flapped his baggy, white cotton trousers. His backpack was secure, and his heart sang, "Allahu akbar!"
Three weeks later, Mark was back in Manhattan. Except for a trim moustache, he now was clean-shaven, wearing a pink Oxford shirt, crisp khakis and loafers. He was meeting for the second time with his attorney, a federal public defender. The first time had been at a bail hearing right after his arrest. The lawyer looked young, and Mark wondered for the umpteenth time whether he should have hired a private attorney. Reminding himself again that he could not have afforded a good one, Mark tried to set his doubts aside. At least Robert had gotten him a pretrial release bond.
Robert began by outlining the likely development of the case. Assuming Mark was indicted, a probation officer would write a report with a sentencing recommendation. That recommendation would depend on such factors as whether this was an isolated incident and how much he had cooperated with the authorities.
Mark knew this wasn’t an isolated incident. There was a soaring demand for this product, and prices were climbing. He had a big stash in New Jersey and had become something of a cult figure among interior decorators and boutique owners in the Tri-State area, thanks to his foresight and investment a couple of years ago, before the supply had dried up in the face of tightening governmental regulations. His product gave a soft, warm glow with no toxic side effects. As much as he liked making money on the contraband, he also believed in the utility of his product. This stuff shouldn’t be illegal, he thought bitterly. But he kept that to himself, suspecting that his government-paid lawyer would favor the official policy of de facto prohibition.
Knowing that the isolated incident factor was a dead end, Mark asked about cooperation.
"That means giving useful information that leads to prosecution of others. For example, if you were a middle man, you could reveal your supplier."
"Somebody must have cooperated for them to have caught me," Mark observed.
"Yes. A confidential informant told the EPA about the deal." Almost reading Mark’s mind, Robert added, "The government can keep those sources confidential except in very limited circumstances."
Mark found that hard to believe. Maybe a private lawyer would be worth it after all. "How many of these cases have you handled?" he asked in the politest tone he could muster.
Robert outlined his impressive resume for Mark–five years as a public defender, three years as an assistant US attorney, two years clerking for a federal district court. But in the end he had to admit that he had not handled a case like Mark’s. No one had. This prosecution was based on a new law that banned the interstate trafficking of this product.
"Are you saying that it’s only a crime if I cross state lines with it?"
"It’s only a federal crime if you"–Robert held up one finger–"cross state lines with it"–now he held up two fingers–"with the intent to put it into the stream of commerce. Some states have outlawed intrastate sale, and some jurisdictions are looking to prohibit possession, but this is a federal action based on interstate trafficking."
Mark thought he’d have to start dealing closer to home.
"Tell me about your arrest," Robert prompted. Mark sighed and concluded he might as well cooperate with his lawyer if not the government.
"I was heading to Penn Plaza Park from the station." He saw no need to admit that he had traveled from New Jersey to New York. "I was crossing the street, and I saw my contact at the park. At least, I thought he was my contact. We had never met. I started to text him. But before I could send the message, this cop started yelling at me about texting while walking. I thought he was joking. But before I knew it, I was swarmed by an army of cops. Is that why I got caught – because I was texting? Is that a crime now?"
"You know how dangerous it is to text and drive, right? Well, some jurisdictions have expanded that to texting while biking or while crossing the street. The city officer who stopped you was enforcing a new ordinance. He didn’t know you were the subject of an investigation. The undercover officers were waiting for you in the park. The man you thought was your contact was actually EPA/OCEA."
Mark’s blank look prompted Robert to spell it out. "Environmental Protection Agency/Office of Code Enforcement and Administration."
Mark nodded.
"The city officer botched the investigation before you made the delivery. Your text messages up to that point were so cryptic that they’ll have a hard time proving intent to distribute. They needed you to finish the deal. Thanks to the city officer, you didn’t."
Hoping that this good news would encourage Mark to be more forthcoming, Robert pursued his questioning.
"Did you see anyone you know on the train?"
"Did you talk to anyone or see anything unusual?"
Mark described the security operation at the train station.
"Must have been VIPR, " Robert concluded. "Visible Intermodal Prevention and Response. It’s a TSA program."
"Why do they search people getting off trains?"
"You know how terrorists might strike anywhere that large numbers of people gather in public, right? Sporting events, train stations, cities. Well, Homeland Security has developed a random matrix of searches designed to interdict any terrorist plots they happen to run into."
Mark was momentarily troubled by the idea of random government searches based on the fact that people gather in crowds, but he had to concentrate on his immediate problem. Robert was still talking about VIPR.
"They usually videotape VIPR operations, so if you came in on a train from another state, they’ll probably be able to prove it."
Robert wrapped up the meeting by telling Mark to keep a low profile and hope that the city cop had indeed botched the investigation or that the Feds would not link him to an interstate train. The government’s case would sink unless it could prove both interstate travel and intent to deliver.
But it couldn’t. His public defender, it turned out, had evaluated the case correctly. The government’s investigators found the relevant footage of Mark getting off the train with the backpack. But due to the city police officer’s zealous enforcement of the mayor’s safety initiative, Mark had not made the crucial handoff. Case dismissed.
Learning from his experience, Mark geared up with extra precautions to unload his inventory. No more interstate deliveries. No more unknown couriers. He would only deal with people he personally knew. Customers would have to meet him at previously unspecified locations with last minute changes communicated via disposable cell phones.
And they would do it; they would jump through any hoops and pay almost any price he named. Demand was higher than ever due to the hiatus resulting from his arrest. And since New Jersey had not yet outlawed possession of incandescent light bulbs, Mark was back in business.
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