Chapter 34

Betrayal

Jim Dandy to the rescue. J.R. stopped by the store the day after the arraignment and I told him the story. When I got to the part about the bail and how it looked like I would be spending some time downtown before I could get that together he said, “No way you’re going to jail. I’ll put my house up for bail.” And he did. J.R.’s house had skyrocketed in value over the last few years, as had every other home in the conurbation known as Los Angeles; his equity was more than enough to satisfy the bail requirement. He spent an entire day getting all the paperwork in order, forgoing all the important things he had to do, and we marched into the Federal Courthouse on a Tuesday morning and I was “bailed out” by early afternoon. How do you thank someone for that? You don’t. You try, but it sounds feeble. A true friend doesn’t need or expect thanks; he does what he has to do.

Over the next couple months I met with Clancy twice to discuss options. I was charged with ten counts of Copyright Infringement; Conspiracy to commit Copyright Infringement (a nice way of tacking on an additional charge that simply amounts to overkill), Mail Fraud, and Interstate Transportation of Stolen Property. The last two had me puzzled: we hadn’t defrauded anyone; we hadn’t stolen anything, what were these about? Clancy said, “You sent flyers through the mail advertising records for sale. You inferred you had the right to sell these records, but you did not. That is fraudulent representation and equals Mail Fraud. As for the other, the government contends that when you converted these tapes to record, it was a fraudulent conversion. You had no right to do so. Fraudulent conversion equals theft. Therefore, all the records you made were “stolen” and when you shipped over $5,000 to Paul across state lines that was Interstate Transportation of Stolen Property.” I’ve heard of convoluted logic before; this was beyond believability. Clancy said we had to live with it. My protests that this was absurd, beyond the pale, something that could be easily overturned, were for naught.

I had three choices: plead guilty and throw myself on the mercy of the court, ask for a trial by judge, ask for a trial by jury. Clancy recommended pleading guilty; the government prevailed in 98% of their cases and this one appeared to him to be a slam–dunk. It would cost far more to go to trial; the penalty could be more severe. This I agreed with; I wanted to get it over with as quickly as possible and get back to running my record store. I wanted it behind me with the kids as young as possible. I didn’t want them going to school and having word get out that their daddy was a convict.

Clancy said to wait until he had all the “discovery” material, then we would decide. That would be the sum total of the government’s case; they weren’t supposed to hold anything back from us so we could mount a proper defense. It was late March when I received a large packet from Clancy with transcripts of testimony from government witnesses. There were only three. The FBI agent who tried to get me to sell him cassette tapes of our records was one; his statement seemed useless no matter what spin was placed upon it. The other two were a shock: Glen and Linda Midcap. Glen had told me the FBI never approached him; it turned out he had been working for them for the last eighteen months we were in business. They got to Glen because I had put our house utilities in his name, if not for that he might never have been questioned. Glen didn’t just tell them the truth, exactly what I asked him to do after he had a lawyer, Glen Midcap did his best to bury me. As I read page after page of five separate interviews conducted over that time span I began to feel sick. The man I’d treated like a brother, the fellow that I helped out repeatedly with extra money whenever he needed it, was the lowest form of vermin imaginable.

Glen’s statements went beyond giving information; he tried his best to hurt others and me. I was stunned when I read, “Sam went outside (Mr. Paperback) one time while we were packing to talk with “Cary.” I wasn’t supposed to hear but I went to the door and listened and they said…” Up until then I though that conversation was between “Cary,” me, and the lamppost. Come to think, it still was; this lamppost had a mouth, but no brain. At one point he said, “Sam has a friend named Felice Lipsky and she sells Beatles bootlegs at swap meets and conventions.” What did poor Felice have to do with any of this? He gave the FBI test pressings of our records before they were released; ones I had given him for his Elvis collection. Slicks of covers, flyers, catalogues, and our entire mailing list were all in the hands of the FBI. Strangely, he forgot to tell them about the film lab and the videotapes, probably because they never asked. Luckily for Eddie and Carl, Glen’s brainpower couldn’t move a marble across a smooth surface.

Glen did us in; it is doubtful there would have ever been a case without him. Not much of one, that’s for sure. He filled in all the missing pieces, gave the government everything they needed. Why? You’ll have to ask him. I suspect he was scared of his own shadow when the big, bad FBI threatened him with some sort of conspiracy charge. Glen was a burly one, powerfully built, but for all his outer strength he came across as the stereotypical ninety-eight pound weakling. What do you do when someone you call a friend turns into a backstabbing, conniving, two–faced, creep? Tarred and feathered, drawn and quartered, and boiled in oil came to mind. Sadly, as popular as those activities once were, they are now frowned upon in civilized society. So, you shake your head and wonder why; that’s what I did. Strong back, mind of a child, an all–too–familiar combination. There’s a Dylan song that makes me think of Glen Midcap every time I hear it: “Just Like a Woman.”

After reading Glen Midcap’s statements I felt hurt, dismayed; I’d just been sucker–punched by someone I regarded as a close friend. Still stunned, I called Linda at Warner Brothers, told her I had just found out that Glen had been working with the FBI for eighteen months and told them many things that were damaging and spiteful. Linda professed to know nothing about any of it. Not ten minutes later I received a call from Clancy O’Brien. He informed me that Linda had called Paul Rochmes, the Assistant U.S. Attorney prosecuting the case, and said that I had threatened her and Glen. I told Clancy this was not the case; I iterated the conversation between Linda and I. Clancy admonished me, telling me to have no contact with these people. Apparently allayed Rochmes’ fears for I never heard another word about it.

I am no stranger to violence, thanks to my tenure in Vietnam. Personally, I detest it and always aim for an amicable solution. Though well trained in the art of offense and self–defense, I have only had to resort to aggressive action twice since I returned from Vietnam. Both times a person pointed a gun at me; both times I was the owner of a shiny new toy seconds later. The evil–doers were busy regaining consciousness; they would awake to find themselves needing extensive medical and dental treatment. Pure defensive reflex thanks to extensive training.

I am also guilty of extensive child abuse. I pointed a finger at Lisa, a stern look on my face, when she was nearing two years old. Tears started rolling down her cheek before I could say a word. I halfheartedly swatted Patrick on his diaper twice, nine months apart, to impress upon him that I would not tolerate defiance, even during the “terrible–twos.” I live with the shame of those transgressions every day of my life. My children, who recall nothing of those incidents, have forgiven me.

Paul faced the same charges and he had his own Judas in the form of Ace. This clown not only sold Paul down the river, he stole all the records Paul had in storage. To this day he sells them on the Internet; somehow immune from FBI intervention. The government takes care of its informants.

Also charged was Richard Minor, but not for Mail Fraud since he never mailed out any of our flyers. Richard just advertised in magazines; that must have saved him. It didn’t save us. Richard couldn’t help himself; his mouth got us all into more trouble than we could have foreseen. Thanks to Richard, the first judge, not a bad sort to my way of thinking, and one who seemed to view the entire proceeding as puffery and not really worth his time, recused himself because Richard wouldn’t stop talking when the judge told him to do so. “Young man, will you please shut up!” “Your honor, this is my day in court, I have some things to say and I’m going to say them.” With that the judge stormed off the bench, never to return. I had already pled guilty, Paul had been found guilty by the judge, and Richard was in the middle of his trial by jury. If only that first judge had sentenced us before Richard set him off…

That original judge showed how serious he thought the whole matter was during my court proceedings. Clancy and the “trout” (U.S. Attorney Paul Rochmes) were arguing over the fine that could be imposed. Rochmes was a pipsqueak, spineless, easily bullied. Clancy was berating him because he was asking for a fine of $25,000. That was the maximum amount under the new felony law; our offense occurred when these acts were a misdemeanor and had to be treated as such. The maximum fine was $10,000. I stood there bored; it must have shown. The judge leaned into his microphone and intoned, “Mr. Theaker. Pay attention. That’s your money they’re talking about.” His honor’s smirk was not well–concealed.

The case was transferred to Manuel Real, head of the Ninth Circuit. The most reversed judge in history. “Insane” and “tyrant” are some of the words used to describe Manny. He is famous for banging his gavel, standing up with arms outspread, robe billowing, and shouting, “I am God.” Just the type of man you know will treat you fairly. He is the only reason I ever bother to check the obituary section in the Los Angeles Times. Nothing like some good news to start your day. But don’t take my word for it, just Google Manuel Real to see for yourself.

Paul and I were sentenced to eighteen months in jail, given suspended sentences of four and one–half years, five years probation, a $10,000 fine, and 300 hours of Community Service. It took the prosecutor and Clancy over an hour to figure out what the sentence actually was after Manny read it off at two hundred miles an hour and got up and walked back to his torture chamber.

And then there was Richard. The jury found him guilty and he paid the price for asking for a trial. He got eight and one–half years! Eleven consecutive terms of six months for the Copyright Infringement and Conspiracy, and three years for the Interstate Transportation of Stolen Property (from the time we trucked him 12,000 of our LPs to cover the titles I mailed back to myself).

One thing Manny did, attempting to cover all bases, was to give Paul and I the same sentences in toto, but the penalties were switched around for the different charges. Paul received one year of his jail time for the Interstate charge; I received a fine for that. Paul decided to fight it. His lawyer took it all the way to the Supreme Court and they prevailed. The Supreme Court ruled that it was not Congress’ intention for the law to be applied in this manner. The conviction was overturned and Paul was sent back to Manny for resentencing.

Manny said, “I don’t care what the Supreme Court said. I sentenced you to a year in jail. Go do it.” Paul had the right to appeal; his appeal would certainly be granted. The catch? By the time the appeal was heard, Paul would have finished his sentence. Manny’s robe is pure Prada. A Federal Judgeship is a lifetime appointment; they can’t be recalled for anything short of murder in front of a dozen witnesses. And only if the witnesses are wearing clerical collars.

Richard rode Paul’s coattails all the way to the Supreme Court. A win for Paul was a win for Richard. He also had to appear for resentencing. Richard’s case was different: if Manny told him what he told Paul, Richard could appeal and win while serving the five and one–half years. The last three years of his sentence would be vacated. Manny realized this, and when Richard appeared before him he received no time for the Interstate charge. The eleven six month sentences were changed to one year each, the maximum. Richard walked into court with eight and one–half years and walked out with eleven.

Why did the government wait nearly two years after we stopped making records to come after us? At various times in their history the FBI has targeted certain groups: The Teamsters, The Mafia, Income Tax Protesters, etc. When Reagan, former Screen Actors Guild president, was elected, the push was to focus on entertainment industry–oriented laws. Congress changed copyright violations from a misdemeanor to a felony; penalties were stiffened dramatically. To impress the boss, the FBI went after bootleggers. We became the subject of their latest purge. Our case had lain in a bottom drawer for over a year; it was resurrected, worked up, and they readied their battering ram. FBI purges were just like those of Uncle Joe. The main difference: people survive to tell the tale.

Paul’s lawyer theorized that one of the government’s problems lay in the fact that most of the material on our albums came from television shows, live concerts, and studio outtakes. This material was not copyrighted (it is now) and RCA, along with the FBI, had to search and search through all our LPs to find a song here and there that fit the definition of copyright infringement. What we were truly guilty of was using the material without permission from RCA, the entity that had an exclusive contract with Elvis Presley. This was a civil matter; the government wanted criminal charges and thus spent countless hours finding ten songs out of the hundreds on our albums that fit their narrow definition of copyright infringement.

When Paul acquired the 16mm print of “Singer Presents Elvis” back in the early days of our career, I noticed when I viewed it that there was no copyright notice. I thought this strange, but didn’t dwell on it. Had we but known the vagaries of the copyright laws and carefully researched things, just maybe…

It is said that things happen in threes. “Uncle Morley” being instrumental in the planning of the Hawaii Benefit Concert was certainly serendipitous, the Million Dollar Quartet actually having existed as an obscure 8–track bootleg for years was material for a Twilight Zone script. The third example of “curiouser and curiouser” appeared when the name Alan Kress surfaced as a major player in the proceedings.

Shortly after Paul made “TV Guide Presents Elvis” he received the obligatory letter telling him to “cease and desist” lest he be hung from the yardarm, forced to walk the plank, or some other nefarious means of suffering. The letter came, not from RCA, but from the legal offices of TV Guide. Such a letter is intimidating; definitely cause for concern. Paul contacted his uncle for advice. The lawyer’s name on the missive was Alan Kress, then one of the head legal counsels for the magazine. Paul’s uncle smiled; Mr. Kress had formerly been counsel for Black & Decker. Paul’s uncle was one of the top executives in that corporation and Alan Kress worked for him. A simple phone call smoothed things out; a favor was called in, and Paul was bothered no more.

Mr. Kress apparently liked the world of entertainment and his next posting was with the RIAA (Recording Industry Association of America). This agency was the one that motivated the FBI to pursue the case. Alan Kress’ next move was to, of all places, RCA. Darned if this man wasn’t following us! Or so one might infer. Alan Kress signed the “cease and desist” letter that I received about the Dorsey LP, and the later one referencing Cuba Gooding. I told Paul about the letters, but apparently never sent them to him. Had I done so, Paul would have picked up on the name immediately. Thus, Alan Kress was active with RCA while we were making our albums. He was aware of our activities and counseled RCA executives on how to proceed. His previous work with the RIAA, coupled with his position at RCA, resulted in his being our arch–nemesis. He went from Black & Decker’s drills to drilling holes in us. Strange days indeed.

We’re nearing the end, and none of this might ever have happened but for an unsung hero in our tale. When “Heartbreak Hotel” began dominating the airwaves in early 1956 I was transfixed. The voice mesmerized, the delivery unlike anything before or since, and Elvis has always been my favorite male vocalist. Not so with Paul. He didn’t pay attention to pop music until 1958. Understandable, since he is over a year my junior. Being at least twelve in 1956, and in seventh grade or above, was crucial to Elvismania. Most fifth– and sixth–graders disdained girls, and what girls went gaga about, they ignored. Thus, by the time the “Top Forty” became a factor in Paul’s life, Elvis was in the Army. He still topped charts, his popularity continued to grow, but that initial surge that tore across the country and flattened the competition like a category five hurricane reaching land had been reduced to a severe tropical storm.

It was the summer of 1962 and a young man named Bruce Marpel, from Hagerstown, MD, was visiting his cousin Susan and Paul’s next–door neighbor in Ruxton, MD. In Paul’s own words, “He got me into Elvis in 1962 when he begged me to go and see “Follow That Dream” with him. I don’t think I was even aware of Elvis that much, but that movie did it for me and kinda changed my life.”

Paul continues, “I have tried to track him down for a LONG time. However, I messed up as I was spelling his name “MARPLE” and, for some reason, two weekends ago (in April 2009) I attempted to find him again and just thought that MAYBE I was misspelling the name. Sure enough I was! If he only knew what he did for me, you, AND for maybe hundreds of thousands of Elvis fans AND even RCA who, thanks to us, I think, realized that “live” concerts, outtakes, and alternate takes would sell!”

Bruce Marpel grew up to become a true American hero. He had a distinguished career in the U.S. Navy and then became a member of one of Washington’s alphabet agencies that safeguards us without our knowing it. Paul concludes with, “Anyway, the bad news is that he died in 2003 and it really made me sad because I never had a chance to thank him. The chances are that without him I may not have ever gotten into Elvis, Elvis collecting, or bootlegging. Therefore, we would have never met!! I owe Bruce Marpel a lot!!”

Okay, we weren’t role models; we impacted people’s lives and made them feel better. I’ll settle for that. We received many letters of praise; we never got a letter that said, “Stop! You’re causing pain and suffering.” The nicest things you’ll ever see and hear are a smile on a child’s face and children laughing. We made Elvis fans smile; that’s somewhere in the top ten. If Manny had to abide by the will of the majority, he would have sentenced us to life—running the Elvis department at RCA. Edmund Burke purportedly said, “All that’s necessary for the triumph of evil is for good men to do nothing.” If it wasn’t downright evil for RCA to sit on their hands and issue nothing of import in the years immediately following Elvis’ death, it was certainly crass and callous. We were the great Libertines in the presence of proper Victorians; we were righting a wrong.

I was later asked why, since I pled guilty, some of the charges weren’t dropped. That is customary with a guilty plea; something Clancy never mentioned. I also followed Clancy’s advice to the letter during my pre–sentencing interview. I told the complete truth. Clancy said, “Don’t tell even the smallest lie. They know everything. If you attempt to hide anything you will only make it worse for yourself.” I wound up saying things that only Paul and I could have known. I only dug a deeper hole and made things worse for myself. I followed my lawyer’s advice. Did I get good representation? You be the judge.

to chapter 35

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