Rule 35 of the Federal Rules of Criminal Procedure provides the only mechanism for the commutation of a prison sentence. Its logic is brilliant and fits my situation perfectly. If an inmate can solve another crime, one that the Feds have an interest in, then the inmate's sentence can be reduced. Of course, this takes the cooperation of the investigating authorities - FBI, DEA, CIA, ATF, and so on - and of the court from which the inmate was sentenced.
If all goes as planned, I may soon have the privilege of seeing the Honorable Judge Slater, and it will be on my terms.
The Feds are back.
The warden is much nicer to me these days. He figures he has a prize that some big people desire, and he needs to be in the thick of things. I take a seat at his desk and he asks if I want coffee. This offer is almost too surreal to comprehend - the almighty warden offering coffee to an inmate.
"Sure," I say. "Black."
He punches a button and relays our wishes to a secretary. I notice he's wearing cuff links today, a good sign.
"Got the big boys here today, Mal," he informs me smugly, as if he's coordinating all efforts to find the murderer. Since we are such good pals now, he's using my first name. Until now it's been Bannister this and Bannister that.
"Who?" I ask.
"The director of the task force, Victor Westlake, from Washington, and a bunch of lawyers. I'd say you have their attention."
I cannot keep from smiling, but only for a second.
"This guy who killed Judge Fawcett, was he ever here, at Frostburg?" the warden asks.
"Sorry, Warden, I can't answer that."
"Either here or Louisville, I take it."
"Maybe, or maybe I knew him before prison."
He frowns and rubs his chin. "I see," he mumbles.
The coffee arrives, on a tray, and for the first time in years I drink from a cup not made of plastic or paper. We kill a few minutes talking about nothing. At 11:05, his secretary informs him through the intercom on his desk, "They are in place." I follow him through the door and into the same conference room.
Five men in the same dark suits, same white shirts with button-down collars, same bland ties. If I had seen them in a crowd from half a mile away, I could have said, "Yep, Feds."
We go through the usual stiff introductions and the warden reluctantly excuses himself. I sit on one side of the table and my five new buddies sit on the other. Victor Westlake is in the middle, and to his right are Agent Hanski and a new face, Agent Sasswater. Neither of these two will say a word. To the left of Westlake are the two assistant U.S. Attorneys - Mangrum from the Southern District of Virginia and Craddock from the Northern. The rookie Dunleavy got left behind.
Thunderstorms had rolled through just after midnight, and Westlake begins by saying, "Quite a storm last night, huh?"
I narrow my eyes and stare at him. "Seriously? You want to talk about the weather?"
This really pisses him off, but he's a pro. A smile, a grunt, then, "No, Mr. Bannister, I'm not here to talk about the weather. My boss thinks we should make a deal with you, so that's why I'm here."
"Great. And, yes, it was quite a storm."
"We'd like to hear your terms."
"I think you know them. We use Rule 35. We sign an agreement, all of us, in which I give you the name of the man who killed Judge Fawcett. You pick him up, investigate him, do your thing, and when a federal grand jury indicts him, I walk. That very day. I transfer out of Frostburg and disappear into witness protection. No more time; no more criminal record; no more Malcolm Bannister. The deal is confidential, locked away, buried, and signed by the Attorney General."
"The AG?"
"Yes sir. I don't trust you or anyone in this room. I don't trust Judge Slater or any other federal judge, prosecutor, assistant prosecutor, FBI agent, or anybody else working for the federal government. The paperwork must be perfect; the deal unbreakable. When the killer is indicted, I walk. Period."
"Will you use an attorney?"
"No sir. I can handle that."
"Fair enough."
Mangrum suddenly produces a file and removes several copies of a document. He slides one across the table, and it comes to a rest in front of me, in perfect position. I glance at it and my heart begins to pound. The heading is the same as all of the motions and orders filed in my case: "In the United States District Court of Washington, D.C.; United States of America versus Malcolm W. Bannister." In the center of the page, in all caps, are the words "RULE 35 MOTION."
"This is a proposed court order," Mangrum says. "It's just a starting point, but we've spent some time on it."
Two days later, I am placed in the rear seat of a Ford SUV and driven away from Frostburg, my first exit from the camp since the day I arrived three years earlier. No leg chains today, but my wrists are cuffed in front of me. My two buddies are U.S. Marshals, names withheld, but they are nice enough. After we get through the weather, one of them asks if I've heard any good jokes. Lock away six hundred men and give them plenty of idle time, and the jokes come in waves.
"Clean or dirty?" I ask, though there are few clean jokes in prison.
"Oh, dirty of course," the driver says.
I tell a couple and get some good laughs as the miles fly by. We're on Interstate 68, zipping through Hagerstown, and the feeling of freedom is exhilarating. In spite of the handcuffs, I can almost taste the life out there. I watch the traffic and dream of owning and driving a car again, of going anywhere. I see fast-food restaurants at the interchanges and I salivate at the thought of a burger and fries. I see a couple walking hand in hand into a store, and I can almost feel the touch of her flesh. A beer sign in the window of a bar makes me thirsty. A billboard advertising Caribbean cruises takes me to another world. I feel as if I've been locked up for a century.
We turn south on Interstate 70 and are soon in the Washington-Baltimore sprawl. Three hours after we leave Frostburg, we arrive in the basement of the federal courthouse in downtown D.C. Inside the building, the handcuffs are removed; I proceed with one marshal in front of me, the other behind.
The meeting takes place in the chambers of Judge Slater, who's as prickly as ever and seems to have aged twenty years in the past five. He considers me a criminal and barely acknowledges my presence. Fine, I don't care. It is evident that a lot of conversations have taken place between his office, the U.S. Attorney's Office, the FBI, and the Attorney General of the United States. At one point, I count eleven people around the table. The Rule 35 motion, with the attached agreement, has increased in size and runs for twenty-two pages. I have read every word five times. I even demanded some of my own language.
The agreement, in short, gives me everything I want. Freedom, a new identity, government protection, and the reward money of $150,000.
After the usual throat clearing, Judge Slater takes charge. "We will now go on the record," he says, and his court reporter begins her stenography. "Even though this is a confidential matter and the court's order will be sealed, I want a record of this hearing." A pause as he shuffles papers. "This is a motion by the United States for Rule 35 relief. Bannister, have you read this entire motion, agreement, and proposed order?"
"I have, Your Honor."
"And I believe you are an attorney, or, shall I say, were an attorney."
"That's correct, Your Honor."
"Does the motion, agreement, and order meet your approval?"
Damn right it does, old boy. "Yes sir."
He goes around the table and asks the same questions. It's all a formality because everyone has already agreed. And, most important, the Attorney General has signed the agreement.
Slater looks at me and says, "You understand, Mr. Bannister, that if the name you provide does not lead to an indictment, then the agreement is null and void after twelve months, your sentence will not be commuted, and you will serve the remaining time in full?"
"Yes sir."
"And that until there is an indictment you will remain in the custody of the Bureau of Prisons?"
"Yes sir."
After more discussion about the terms of the agreement, Judge Slater signs the order and the hearing is over. He does not say farewell and I do not curse him the way I'd like to. Again, it's a miracle that more federal judges are not whacked.
I am swarmed by an entourage and led down the stairs to a room where more dark suits are waiting. A video camera has been set up for my benefit, and Mr. Victor Westlake is pacing. I am asked to sit at the end of the table, face the camera, and offered something to drink. It's a very nervous bunch, desperate to hear me utter the name.
