Podcast - Trust Is Key

Dan Small: If you went out to a nearby park, sat on a park bench next to a complete stranger, and started asking tough questions about their work, their lives, their finances and their mistakes, what would happen? If you're lucky, they'd just think you were crazy and walk away. Why are we as lawyers so arrogant that we think we can do exactly that with someone just because they wear the hat of a witness? Ask strangers tough questions and expect them to tell us the truth? You can't! You can't. You have to develop a bond with a witness, to develop trust. Because without trust, we're flying blind. 

That can be a tough challenge in the best of circumstances. But what if the witness has left the country? In the Frank Wallen corruption investigation that we've been talking about in prior episodes, Domenic D'Allesandro had come to this country at age 17 and succeeded through hard work. Not only had he and Cardelli built Charm Construction into a large and successful company, but he had also married and started a family. America had delivered everything he had hoped for. But the lure of home and family — of Italy — remained strong.

So before our investigation became known to him, he sold his half of the business to Cardelli, sold his house, and moved back to the little village on Italy's Adriatic Coast where he had grown up.

Meanwhile, our investigation moved forward. We indicted both Cardelli and D'Alessandro for tax evasion. Cardelli pled guilty and cooperated, but D'Alessandro was gone. There was no way to bring him back. No one, the IRS folks assured me, had ever been extradited to the United States from Italy for tax evasion. Even if we tried it, the process would be dragged out for years. It just wasn't going to happen. And without D'Alessandro, Wallen would likely get away with it.

So I decided to go to Italy. At first, no one was buying it, and they would tell me things like: "You're never going to get it approved in D.C." "You're never going to get the budget for it." "He's never going to agree to come back." "It's a waste of time and money. This is stupid." None of this was irrational. All true, I said, but if we didn't try, then Wallen walks, and that's just not acceptable. I persisted. I was a pain in the butt, believe me. And eventually, I got the OK.

Of course, nothing is that simple. I needed lots of things from lots of people:

• From the Department of Justice, I had to get agreement on what I could offer Domenic over there: a guilty plea to tax evasion and a recommendation of probation if he testified truthfully. But only a recommendation, they said. The judge could still send him to jail.

• From the State Department, I had to get permission to go and a diplomatic passport. I was, after all, traveling on official business.

• From the IRS, I received insistence that the case agent go with me. Well, that was OK, because I had a great case agent, but he had never traveled abroad, so he was going to be of limited help.
• And from Domenic, I had to get his agreement to see me at all. When I was finally able to communicate my interest to him, he hired a lawyer in Boston to represent him, and we negotiated the date, time and place of our meeting.

So Vince, the IRS case agent, and I flew from Boston to Rome, and then made our way by train across Italy to the Adriatic Coast. From there we got to the little town where Domenic was living and met him and his lawyer for dinner. In Italy, as in other parts of the world, no serious business gets transacted until you have broken bread together. Food and wine come first. 

We met for dinner in a small restaurant in the center of the town. Everyone — owner, staff and patrons — everyone knew Domenic. He assured us that this was the best food in town and then disappeared into the kitchen. We never saw a menu. Domenic spent 10 to 15 minutes back in the kitchen, talking with the chef, and then for the next four hours or more, we were treated to a procession of some of the best food and wine I've ever tasted.

There we were, four of us at the table. Domenic and I were directly across from each other, his lawyer on one side, the IRS agent on the other side. All of us enjoying the meal with the unwritten, unspoken but absolute rule: No business at the dinner table. We spoke of everything, except what we were really there to speak about, and that was fine. It was a great dinner with great conversation. Slowly but surely, though, it evolved into a contest.

In my younger days, I confess, I had the blessing and curse of an extraordinarily high tolerance for alcohol. I could generally outlast most of my friends. Although that tolerance has diminished over the years, at the time of this dinner, it was still pretty high. Thank goodness. Slowly but surely, without a word being said about it, Domenic and I started matching each other on wine, glass for glass. Good food, good conversation, good wine — glass for glass. It was personal. We knew we would be asking a lot of each other down the road, so we had to challenge each other, learn about each other and trust each other.

I have no idea how many bottles of wine we drank that night, but it was a lot. Not only did we never see a menu, but we also never saw a bill — fortunately, because I'm quite sure we went exponentially beyond my government meal allowance. At some point, Domenic's lawyer and the IRS agent stopped trying to keep up, but Domenic and I kept at it. When we finally closed the restaurant after this four- to five-hour dinner, the two of us were not just drinking companions but comrades in arms and trusted friends.

The next morning, the four of us met at Domenic's house. It was a wonderful farmhouse: a large, beautiful house on a working farm. Domenic gave us a brief tour of the grounds, showing us all the work he had been doing, and then we went inside for coffee, which we badly needed after the night before, and to talk. My colleagues back in the U.S. Attorney's Office, the IRS agent and I had spent many hours strategizing about this negotiation. We knew that it was going to be a long and difficult process, probably over several days, with an uncertain outcome.

Domenic's U.S. lawyer had told me before we went that he had explained to his client what his options were and what we wanted, and he didn't know if Domenic would agree. He doubted it. So I drank some coffee, settled into my chair, opened my file and cleared my throat to begin.

Domenic interrupted me. Negotiations, after all, are for strangers. Friends don't need those formalities. They work together based on trust. So he turned to his lawyer and he said simply, "I trust Dan, work it out." And it was over. Two or three days of expected negotiations were over in an hour. And [he] did. Domenic would return to the United States, plead guilty to tax evasion and testify, and I would recommend probation. It all happened so fast that Domenic's lawyer and I got back to Rome several days before our scheduled flights home and became fast friends enjoying two glorious days in Rome.

To everyone's surprise, Domenic came back to the United States, pled guilty and testified. At his sentencing hearing, the judge pointedly asked Domenic, "Do you understand that Mr. Small's recommendation of probation was only a recommendation and that if you plead guilty, I could still sentence you to jail?" Domenic said, "Yes." He understood. The judge went on to say, in terms of rehabilitation, how impressed he was that Domenic had returned voluntarily. In terms of the seriousness of the offense, it got a little funny because he said, "I have in mind that tax evasion is somewhat of a national sport in Italy." He also considered the importance of Domenic's testimony to the interests of justice. He agreed with our recommendation and sentenced Domenic to probation, even allowing him to return to Italy after the trial.

Why did Domenic come back? I was asked that question a lot before, during and after the trial. Certainly, there were some specific reasons. He didn't want to have this hanging over him. He didn't want to be a "fugitive," even if in name only. He wanted to be able to bring his kids to visit family and friends in the United States without fear of being arrested. But I think the real answers were more profound.

First, he truly wanted to do the right thing. He told me once: "I should never have let Frank Wallen do this to me. If he did it to me, he could do it to others." Second, he was not putting his fate in the hands of a distant government bureaucrat, but with someone he believed in and trusted, me. Hour by hour, glass by glass, we had forged a bond that carried us through that very challenging process together.

You don't have to let every witness try to drink you under the table. In fact, I strongly recommend against it. But in every case, you do have to find ways — and time — to forge a bond of trust with each witness.

Don't just try to sit down on that park bench and ask questions of a stranger. If you want the truth, work to develop a relationship that will bring it out. Thank you, Domenic, for your trust.