In the French punk movie, “Hate,” one kid tells another a joke. A guy falls out the window of a high apartment building. As he’s falling past each successive floor, he tells himself “So far, so good, so far, so good...” When I came back from lunch to resume Cohen’s deposition, I felt like I had fallen off the roof of a 20-story building, and had just passed the 12th floor. Somewhere during the next 12 floors, preferably within the next four, I needed to reverse the force of my downward plunge.
Before lunch, I’d tried my usual approach of starting without documents, to avoid giving the witness a place to rest their eyes to avoid your probing stare. Questions answered in a vacuum, without dates and names and documentary references, are often more honest. But Cohen had given up nothing in two hours of wordplay, and the pavement was getting closer. I had to start using documents to slow my descent. I started with one that was bad for Gary, the Delaware incorporation papers for Online Classifieds, Inc., that Joel Dichter had formed when he was Gary’s lawyer. Dorband had taken control of Dichter’s strategy, but I figured it would help to get Cohen to admit that the incorporation was not fraudulent. I thrust the document at him suddenly, accompanied by a vague, sneering question. Dorband saw the danger of the tactic, which is meant to provoke the witness to speak carelessly in response. Dorband immediately began running interception.
CARREON: I have marked as Exhibit 1... a statement... a designation by foreign corporation. It appears to be signed by my client, Gary Kremen. Have you seen that before?
CARREON: What difference does that... document make to you?
DORBAND: Objection. Vague, ambiguous.
CARREON: Does it make any difference in this lawsuit?
DORBAND: Objection. Calls for a legal conclusion, also.
CARREON: To your knowledge.
DORBAND: If you have -- it would be an impermissible opinion.
CARREON: Do you --
DORBAND: If you have an opinion.
COHEN: If I have an opinion?
CARREON: Yeah, do you have an opinion?
COHEN: My opinion is that the attorneys of Gary Kremen tried to perpetrate a fraud upon the court.
CARREON: How does that document prove it?
COHEN: This is where they tried to back-date the corporation Online Classifieds, back to the date of 1994.
CARREON: Where do you see that attempt to back-date?
COHEN: Taking the reading of the original complaint plus this document plus the other documents.
CARREON: Where do you see on that document any attempt to back-date anything?
DORBAND: I believe that mischaracterizes his testimony.
CARREON: Do you see anything on that document that shows an attempt by my client to back-date anything? Look right on that document, don’t look any place. Don’t look anyplace else.
COHEN: I’ll stick with my last answer.
CARREON: And your last answer is what?
COHEN: Taking all the papers into consideration, that was of my opinion, not of a legal opinion.
CARREON: So you admit there’s nothing on this document at all here which backdates anything?
DORBAND: Objection. Mischaracterizes his testimony.
Okay, I’m falling a little more slowly now, and I’m ready to attack the main issue. I grabbed the corner of the most crucial document, the forged letter itself, and twirled it like a playing card toward Cohen while simultaneously asking him:
CARREON: Here’s what I’ve marked as Exhibit 2. Where did you get that? From the tooth fairy?
Dorband iced me down:
DORBAND: Would you please give the witness the opportunity to read the document, please?
COHEN: Would you read it to me, please?
CARREON: I’ll give it to your counsel.
COHEN: I’m sorry.
CARREON: Where did you get it? From the tooth fairy?
DORBAND: Objection, if you’re going to continue to badger the witness like this we’re going to terminate the witness -- terminate the deposition.
While Bob may have wanted to kill his client on occasion, I don’t think this was one of those moments. The little slip lightened the moment anyway. I started again:
CARREON: Where did you get that document?
COHEN: I got it from Vito Franco.
CARREON: How did he get it?
COHEN: He got it from Sharyn Dimmick.
CARREON: Where did he meet Sharyn Dimmick to get this?
COHEN: Her address in San Francisco.
CARREON: Does Mr. Franco have a criminal record?
COHEN: No, he does not. Or did not.
CARREON: Does he now?
CARREON: Now, where did you meet him?
COHEN: Where did I originally meet him?
COHEN: Through a friend.
CARREON: And where?
COHEN: I think in Los Angeles is where I actually met him.
COHEN: It’s been so many years. 20-some-odd years ago. 20, 25 years ago.
CARREON: When was the last time you saw Vito Franco?
COHEN: The last time I saw him?
CARREON: Yes sir.
COHEN: In November of 1999.
CARREON: What was that occasion?
COHEN: Sitting in a jacuzzi.
CARREON: Where was that?
COHEN: Tijuana, Mexico.
CARREON: Does he work there?
COHEN: At that time, yes.
CARREON: Well, does he work there now?
CARREON: He worked there then?
CARREON: With what?
CARREON: What does he do?
CARREON: Well, what did he do back when -- you know, during the work day before he sat in the jacuzzi?
COHEN: He was building out the brand-new offices for Sandman.
CARREON: What’s his area of expertise?
COHEN: He -- background on him?
CARREON: Yes, please.
COHEN: He is an ex-police officer. He was a movie producer.
CARREON: With which police agency?
COHEN: I’m not sure. I think it was somewhere in Hawaii. He was -- that’s before he moved to California. He is a movie producer, distinguished, and he was also -- he also did building.
At this point, I was close to gold, but somehow got off track. When I reread the deposition, I’m not sure why. Maybe I was just afraid to move too fast. At any rate, for an intervening 70 pages of transcript we engaged in sparring matches, in which Cohen used poor recollection, diversion, the Fifth Amendment, and a private confidentiality agreement to evade, deflect and block meaningful questioning. I was about three floors from the pavement when I returned to the crucial line of questioning:
CARREON: All right. Let’s go back to the Sharyn Dimmick document. So Vito Franco gave this document to you, Exhibit number 2?
COHEN: That is correct.
CARREON: What did he tell you about it when he gave it to you?
COHEN: She signed it.
CARREON: She signed it. Did you send him to get her to sign it?
CARREON: Why...did you send him to get her to sign it?
COHEN: She agreed to transfer the domain name. Vito and I drove up to San Francisco, and Vito got it and he handed it to me.
CARREON: Well let’s put it this way. Did you ever see Sharyn Dimmick’s name on any document that purported to show that she was somebody with respect to Online Classified, Inc.?
CARREON: Did Vito Franco?
COHEN: I don’t know.
CARREON: Was there any other person involved in the production of [the letter]? And I’m not referring to Sharyn Dimmick, you know. I made it pretty clear that I don’t believe Sharyn Dimmick signed it. So besides yourself and Mr. Vito Franco was there anyone else that was involved in producing this document?
CARREON: Where was it typed?
COHEN: On the computer system that Vito had.
At this point, my heart stopped in its chest. I couldn’t believe I was getting this admission. He typed it! As the questioning progressed, I began to feel like I was in a dream. I wanted to pinch myself, because I couldn’t believe the beauty of the things I was hearing. I was afraid that Dorband was going to set Cohen’s chair on fire, or that Cohen himself would realize he was hanging himself. My headlong plummet had completely ceased. I was beginning to float upward as if in a dream. The dream continued:
CARREON: Did Mr. Franco tell you that Online Classifieds, Inc. had its own stationery and it did not look like this?
CARREON: Did Mr. Vito Franco tell you that he had generated this stationery on his computer?
CARREON: Did Mr. Vito Franco tell you why Sharyn Dimmick wasn’t able to type her own letter?
CARREON: You had never spoken to Ms. Dimmick yourself?
COHEN: Not to my knowledge.
CARREON: You have never spoken to anyone who represented themselves to be Ms. Dimmick?
COHEN: Not to my knowledge.
CARREON: You do not think it suspicious that Mr. Franco found it necessary to create the letterhead for the letter to be written on?
CARREON: You did not think it suspicious that a company that has someone called a president did not have its own stationery?
CARREON: Who drafted the text of the letter?
COHEN: The text of the letter?
CARREON: Yes sir.
CARREON: Did you help him?
COHEN: I may have.
CARREON: This is dated October 15, 1995. When was it prepared?
COHEN: I don’t recall.
CARREON: Was it prepared close to that date? Long before?
COHEN: I don’t remember when he actually talked to her before we drove up, so I don’t know what date it was -- that it was -- I know that he had asked me some questions about what should we put into the letter, and I responded to that.
CARREON: Had he interviewed Ms. Dimmick?
By now, it was clear that from any ordinary viewpoint, the letter was a forgery. Only in Cohen’s world do we rely on documents signed by people we haven’t met, printed on our home computer, using letterhead created for that very purpose. Franco, the guy who got the letter signed, would obviously be an important witness. So I asked about him:
CARREON: He located Sharyn Dimmick by what method?
COHEN: I don’t know how he located her. I honestly don’t know.
CARREON: Mr. Franco is still an employee of Sandman Internacional?
CARREON: Is he his own freelance person?
CARREON: Who does he work for?
COHEN: He doesn’t.
CARREON: He’s just chilling, huh?
COHEN: You could say that.
CARREON: Well, he was in a jacuzzi. I figured. Okay. Where is he? How can I get in touch with Mr. Franco?
COHEN: He’s in heaven.
CARREON: He’s in heaven? He’s in heaven?
COHEN: He’s in heaven.
CARREON: Wait. Well, we know that you and I have got a little bit of paperwork to do before we get in. So where can I find him short of there?
COHEN: He passed away.
CARREON: He did?
COHEN: Yes. He just recently passed away.
CARREON: I see. Where are his records?
COHEN: I don’t know.
CARREON: I’m not going to pass away, am I?
COHEN: I hope not.
I added that last question because it just seemed that anyone who had any relevant knowledge about this case ended up dead. Earlier, I had asked Cohen about the French Connection and the Ashton-Tate lawsuit against himself and John Cook. Since then, John Cook had died. Not only that, Cook’s mother had died when she was served with the lawsuit papers by Ashton-Tate’s lawyers. Right on the spot. Cohen also told two different courts on two different occasions that Frank Butler, the attorney, had a heart attack. Cohen even stored some of his financial records with his father, an accountant, also deceased. It was more than coincidence that people who had important things to say about Cohen’s business dealings seemed to be unavailable. Cohen’s witness list was comprised, in equal numbers, of expatriates, foreign nationals, and folks on whom the ticker had just run out. So I continued digging in the graveyard of Cohen’s memories:
CARREON: When did he die?
COHEN: He died -- he died when I was in Comdex in Las Vegas this last, I think it was October. He was supposed to call me -- sat in the jacuzzi the night before when I called his house, because I was upset because he didn’t call me, and then I found out that he had passed away.
CARREON: So you -- he died in Tijuana? Where did he die in Tijuana?
COHEN: He was a very private individual and I didn’t realize that he was as sick as he was, and Vito never told me -- when I was incarcerated, Vito had suffered a heart attack that I wasn’t aware of. And Vito used to go to the hospital, and I thought he was getting blood transfusions. And after he died I found out that they weren’t blood transfusions, they were kidney dialysis, and he went into the hospital for his kidney dialysis in Los Angeles. I believe it was Cedars.
COHEN: Yeah. And he told them he didn’t feel good, from what his kids told me, and he stood up and passed out and died.
CARREON: And that was in October of 1999?
COHEN: I believe so.
Well, Cohen might have believed so, but according to the responses to the subpoenas I sent to Cedars-Sinai, no such person had ever been a patient. But on February 3, 2000, I just dug for more details from Cohen about this invented person.
CARREON: What did he do for you?
COHEN: What did Vito do for me? Vito did all the work. Vito ran and worked in several of the companies back in that day and age.
CARREON: Did he do a lot of private investigating type stuff, hunting people up and --
COHEN: Yes. Yes.
Along with the forged letter, Cohen had submitted a second document with NSI to change the registration of Sex.Com into the name of Sporting Houses Management. In this document, filed online with NSI, Cohen pulled a classic “spoofing” trick. He filled out the form in Kremen’s name, because as the administrative contact, Kremen had the authority to change the registration. But he changed Kremen’s telephone number and email address to his own phone number and a distinctive email address: firstname.lastname@example.org. The liberty.com name was owned by his friend Stephen Grande, married to Barbara Cepinko of Midcom. I wanted to get Cohen to admit that combining information like this had to be done for a fraudulent purpose, but he just wouldn’t go there. Maybe he was beginning to realize he’d given me too much rope already.
CARREON: [I’m going to] ask you to take a look at that document and ask if you’ve ever seen it before and when you saw it?
COHEN: I produced this.
CARREON: You produced that document?
COHEN: Yes, I produced that document.
CARREON: So you typed Gary Kremen’s name on there?
COHEN: That’s correct.
CARREON: Why did you do that?
COHEN: Because the letter authorized me to do it.
CARREON: Now, why didn’t you talk to Gary Kremen?
COHEN: What was the purpose in talking to Gary Kremen?
CARREON: You knew that Gary Kremen was the systems administrator. He was the only person authorized to transfer this domain name.
COHEN: Says who?
CARREON: He was the only person authorized to transfer it according to --
COHEN: According to who?
This last bit of denial didn’t matter much, though. He had lifted the veil quite enough. Maybe he felt the fraud had been declared legitimate for so long that he no longer saw any risk in discussing how the letter came into existence. He admitted he had never met Sharyn Dimmick, even though the letter said they had talked many times. He had written the letter on his own computer using a word processing program. The only person who had ever “met” Sharyn Dimmick was an old, dead friend of his. When he announced the news of Vito’s death, he chided me for showing no respect for the dead. I told him “Mr. Cohen, I refuse to feel sadness at the death of your witnesses.”
At his deposition, Cohen didn’t say that Vito had paid anything for the name, or Dimmick’s signature. Later, before summary judgment, he shifted to the position that he had paid $1,000 for it, but that he had no receipt for the payment and such exchanges would merely be small amounts between himself and Vito, a friendship that couldn’t be burdened with paltry matters like accounting for four-figure sums.
There it was, elegantly simple. The letter was a forgery, Cohen had no reason to believe that it was legitimate, and it was the operative cause for the transfer of Sex.Com. My entire downward momentum had reversed. I was weightless, floating upwards past the balconies. As I passed the rooftop, I kept rising higher. So far, so good.