INNOCENT BYSTANDERS

@body:The page-one headline in the Arizona Republic was a doozie: "Two held in kidnap-maiming plot. Ring threatened to cut off boy's arms. More arrests likely."

The February 21, 1992, story described how FBI agents had arrested two men supposedly linked to a vicious, $250,000 extortion scheme involving the son of a Paradise Valley businessman. Earlier, Marc Kaplan had received an anonymous letter saying that a team of three ex-Green Berets would kidnap MDRVhisMDNM 12-year-old son if Kaplan didn't comply with their demands. The letter included a threat to amputate the boy's limbs if Kaplan failed to follow instructions.

The arrested men were Mark Nelson, 31, of Scottsdale and Michael Miller, 24, of Mesa. As evidence, the FBI cited Miller's fingerprints on a Chandler pay phone used by the extortionists to direct Kaplan's moves. Nelson had been seen with Miller near Saguaro Lake at the same time Marc Kaplan had gone there to get further instructions.

Four days after the Republic story broke, the FBI arrested Frank Alber, a 36-year-old Mesa man who had once worked for Kaplan. The feds considered Alber the "mastermind" of the failed plot, because they found a draft of the extortion letter during a search of his home.

The third arrest seemed to wrap things up neatly: The Phoenix daily lauded the FBI for breaking the case and itself for breaking the story in an editorial published shortly after the arrests. Headlined "FBI to the Rescue," the editorial said the quick arrests proved that "one of the best-trained police agencies in the world is quietly doing its job. . . ."

The media and the public moved on to other cases, other headlines. Nelson and Miller each spent about a week behind bars, then were released pending trial on federal charges of conspiracy and of mailing the threatening letter.

That lawyers for Miller and Nelson insisted on going to trial should have been a tip-off that something was amiss with the government's conspiracy case. Something was. On the eve of trial last January 20--11 months after the celebrated arrests--mastermind" Frank Alber pleaded guilty to attempting to extort $250,000 from Kaplan. That same week, however, assistant United States attorney Chuck Hyder abruptly dropped all charges against Mike Miller and Mark Nelson.

But it had been chillingly clear months earlier that Nelson and Miller had had nothing to do with Alber's twisted extortion plot. Instead, the two were the victims of tunnel-visioned agents with overactive imaginations, of a bullheaded prosecutor with a controversial track record, and of some remarkably unlucky coincidences.

The government persisted in its case against the two innocent men, even though it developed no evidence that Mike Miller and Mark Nelson had known each other before speaking at Saguaro Lake.

The FBI likewise had no evidence that "mastermind" Frank Alber knew his alleged co-conspirators. The FBI, in fact, had a tape of a conversation in which Frank Alber told a friend he'd never heard of Miller and Nelson before their arrests. But prosecutor Hyder never informed a federal grand jury about that key admission, a violation of federal rules under which prosecutors must present evidence of a suspect's innocence. MDRVInstead, MDNMChuck Hyder played hardball with Miller and Nelson, even as his case against them unraveled and as it became increasingly apparent that Alber had acted alone.

Prosecutor Hyder maintained for almost a year that the trio was "a highly sophisticated and dangerous group of criminals." Miller is a 24-year-old East Valley construction worker; Alber is a 36-year-old, nerdy-looking computer jock; and Nelson is a 31-year-old house painter and wanna-be concert promoter.

Recalls Nelson, "After they busted me, I'd tell my friends, 'You know me. I couldn't do anything like this.' They'd say, 'The government obviously knows something we didn't. Would you really cut off a little boy's arms?' One day at the lake caused me 11 months of bullshit."

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@body:The four-page missive to Marc Kaplan got right to the point.
"IF YOU VALUE YOUR SON'S LIFE . . . READ THE REST OF THIS LETTER!" it began. "You will pay us $250,000 in cash in one week or we will remove your son's arm or leg. We use $250,000 as the base because this amount usually equates to the value of our client's cars. The correlation here is a simple one: Do you value your son's life or limbs more than your cars?"
The anonymous writer added, "We don't really like to hurt children, but our government let us do it before so we feel we can do it now." The letter told Kaplan to expect a telephone call six days later at his Phoenix office.

"LET THE GAME BEGIN!" the letter concluded.
The frightened Kaplan notified the FBI. The feds put a tap on the businessman's telephones and waited for the extortionists' next contact. The call came at 2:17 on the rainy afternoon of February 13, 1992. The male caller ordered Kaplan to drive by himself to a bank parking lot at the intersection of Tatum and Shea boulevards. There, Kaplan would find a note attached to a pole.

Kaplan did exactly as he was told. The note ordered him to a boat ramp at Saguaro Lake, where more instructions awaited. A team of FBI agents tried to remain inconspicuous nearby as Kaplan drove in his Mercedes to the manmade lake, located in the far northeast Valley, near Fountain Hills.

A handful of feds checked out the lake ahead of Kaplan's arrival. About one-quarter mile from the boat ramp, the agents saw two cars parked side by side--a red Corvette and a Mercury sedan. A computer told them the Corvette was registered to a Mark A. Nelson, the Mercury to a Michael G. Miller.

Four men engaged in what appeared to be casual conversation near the cars. The driver of the Corvette, who was wearing his long hair in a ponytail, was using a cellular telephone.

Down at the ramp, Marc Kaplan found a suitcase and another written note. This message told Kaplan to take his shirt off and to turn around slowly, then to place the $250,000 in the suitcase. Kaplan was to drive across the Valley to west Phoenix and bury the cache at a predetermined location near the remote Estrella Parkway.

Kaplan again did as he was told. The FBI agents noted that the Corvette and the Mercury left the lake immediately after Kaplan. The Mercury went in one direction, but the driver of the Corvette--according to an FBI report--tailed" Kaplan as he headed toward Phoenix.

The agents watched as Mark Nelson pulled his Corvette alongside Kaplan's Mercedes. Kaplan later told the feds how the longhaired man had stared at him balefully for what had seemed like a long time. The FBI would take this as a sign of Nelson's participation in the scheme. The agents became even more convinced of Nelson's involvement when Kaplan stopped at a McDonald's restaurant on his way to the Estrella drop-off site.

There, according to the feds, the passenger in the Corvette--later identified as a friend of Nelson's from California named Jeff--walked within a few feet of Kaplan's car and looked in at him. A worried agent approached Kaplan on foot from the other direction. Jeff returned to the Corvette and the driver immediately left the area, the FBI said.

The FBI followed the Corvette into Scottsdale. In the Dragnet-style language of FBI Special Agent Keith Tolhurst, Nelson "engaged in maneuvers which appeared to be attempts to prevent others from following him."

Nelson parked at a Scottsdale apartment complex and walked into his residence of two years.

Other agents trailed Marc Kaplan to Estrella Parkway, where he buried the suitcase at the assigned location. Kaplan then returned to his Paradise Valley home and awaited the next move.

No one came by the Estrella money-drop site that night, but the feds were convinced they were close to breaking the case. Through fingerprint analysis, they had tied Mike Miller--the man in the Mercury sedan at Saguaro Lake--to the pay phone from which Kaplan had gotten his verbal orders earlier that day.

The feds also came up with what they considered a motive for Mark Nelson's alleged involvement. Their preliminary investigation revealed that Nelson was a big talker who dreamed of buying a Tempe rock n' roll nightclub. All he lacked was front money, Nelson would tell anyone within earshot. Was there a better motive for a quick-buck extortion scheme?

On February 18, five days after Kaplan had buried the $250,000 in the desert, the FBI struck pay dirt. That morning, as agents looked on from hiding places near Estrella Parkway, a man parked his car, took out a mountain bicycle and pedaled to within a few yards of where Marc Kaplan had dropped off the extortion money.

The agents completed a computer run on the man's car while he was gone. It came back as registered to a Frank Alber of Mesa.

Bingo! The FBI already knew who Alber was. Marc Kaplan had suspected him from the start. In 1991, Kaplan had fired the computer programmer from Kaplan's mail-order marketing company, Health and Nutrition Laboratories. The extortion letter had been prepared by someone who knew how to produce a professional-looking document on a computer.

The feds weren't quite ready to swoop down on Frank Alber just yet. Instead, they continued to focus their investigation on Mark Nelson and Mike Miller.

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@body:To the FBI, Mark Nelson looked and acted the part of a guy who would get involved in a stupid, but potentially dangerous, plot. Even his friends call Nelson a man who has thrived on his dreams, not his accomplishments.

A former rock n' roll singer, Nelson is notable for his long, long hair, his plethora of gold chains and his ever-present cellular telephone. The Maryvale High School graduate is an incessant name-dropper--Donald Trump often pops up in conversation about possible investors in his nightclub venture--whose favorite subject is himself.

But his actions in the week after his trip with Jeff to Saguaro Lake didn't seem like those of a hardened criminal. All that week, Nelson had suspected someone was following him. He says he dredged his mind for possible reasons--a jealous boyfriend of an ex-girlfriend, someone he may have owed money to--but he couldn't figure it out. Finally, Nelson decided to take action.

On February 19, he dialed 911 from his car phone at Pima and Indian School roads in Scottsdale.

"I'm calling because I am being followed," a worried-sounding Nelson told the police dispatcher from his Corvette. The next day, Nelson was painting on a patio in Scottsdale when the men who'd been following him materialized. A dozen FBI agents swept in and arrested him on charges of conspiring to extort money from Marc Kaplan.

At FBI headquarters in Phoenix, agents stuck Nelson in a room with blown-up field photographs of himself, his girlfriend, Mike Miller, Marc Kaplan and others.

"They tell me if I cooperate, they'll go easy on me," Nelson recalls. "If I pass a lie-detector test, I can go home. I say, 'Great. I've got a date tonight.'"
But the interrogation continued for hours. A nervous type, Nelson blabbed and blabbed. Yes, he had heard of Marc Kaplan, because his current boss had built Kaplan's home in Paradise Valley a few years earlier. But, no, he didn't even know where Kaplan lived or what he looked like. And he had had nothing to do with any extortion plot.

Nelson told the FBI he'd never met Mike Miller before the brief meeting at Saguaro Lake. He had taken the day off because of the inclement weather, he insisted, and he and Jeff had gone to the lake just to hang out for a while.

Yes, he had pulled up alongside Kaplan's Mercedes on the highway, Nelson said. "I told them the truth about what had gone down," he says. "I told Jeff, 'Look at that sweet car. Give me five months with my nightclub and I'll be driving one of those.' Jeff says to me, 'That dude looked scared.' I said, 'Screw him. All I'm doing is looking at his damn car.'"

But things got worse for Nelson as the interrogation wore on. "Now they tell me I'm going to jail, no matter what," Nelson says. "I was getting confused. At about 10 p.m., they put me on the machine. I don't know if I'm comin' or goin'. Then they tell me I flunked. Even my name was wrong."

One of the test questions was, "Did you plan with anyone in a scheme to get money from a guy called Marc Kaplan?"

"No," Nelson answered.
The FBI's polygraph operator told him he was lying.
The operator soon administered a second test. Again, Nelson failed.
"The guy looks across at me and says, 'Are you a Christian?'" Nelson says. "He says, 'Hey, even Christians make mistakes sometimes. You're trying to open a nightclub and you don't have money. Why don't you just tell us you did it? Our machines don't lie.' I say, 'You're full of shit. Take me to jail.' So they did."
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@body:In another room at FBI headquarters, Mike Miller, too, was pleading innocence. The construction worker had also been off work that day because of the rain. He repeated that he and a pal named Bennett had decided to go somewhere and drink beer. On the road, Miller said he had suggested they follow a huge rain cloud to Saguaro Lake. Really.

At the lake, Miller and his friend had struck up a conversation with two guys in a Corvette. They chatted about their jobs and listened to Nelson brag about his connections. Nelson had handed Miller a business card, and he and Bennett had gone off to their boss's home. That was about all he knew, Miller told the feds.

Miller then tried to explain away the crucial matter of his fingerprints on the pay phone in Chandler. He had used the pay phones in that mall before, he said, because it was near his home. But there was no way in hell he would have participated in a plot to kidnap and cut up a child.

The FBI arrested Miller on the same charges as Mark Nelson.
On February 21, Nelson and Mike Miller--whose photograph in handcuffs had been plastered in the Republic that morning--made their way to a federal court for an initial appearance before a magistrate.

FBI agents overheard Nelson say to Miller as they headed to court, "I don't even know you. I've never even met you, except for the one time at the lake." Miller didn't respond. The feds later implied in a report that Nelson had been telling his partner in crime to stick to their story.

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@body:The same day the Republic's big headlines about the two arrests hit the streets, the FBI heard from a friend of "mastermind" Frank Alber.

Rick Fair said he had read that more arrests were forthcoming and that he was scared to death. He nervously told the feds he had made the call to Marc Kaplan on February 13 from the pay phone in Chandler. Fair explained that he and Alber had been drinking and that Alber asked him to read a brief note to the person who answered as some kind of joke.

Under questioning, Fair said he'd never heard of Mark Nelson or Mike Miller until he'd read their names in the newspaper. The feds soon offered Fair immunity from prosecution if he would help them nail Frank Alber.

On the morning of February 24--one year ago, today--the feds wired Fair for sound and sent him to Alber's home in Mesa. A transcript of the conversation reveals Fair berating Alber from the outset for involving him unknowingly in the extortion plot.

"I have stomach pains," Fair says. "I mean, Jesus Christ, Frank, I thought we were friends."
Alber tries to smooth things over, but Fair won't bite.
"You don't think a freakin' 100 [FBI agents] are gonna find something out?" Fair continues.

In another attempt to calm Fair down, Frank Alber brings up the arrests of Miller and Nelson.

"They had one set of prints, and they have the guy who was there and also out at Saguaro Lake," he says.

"Do you know those guys?" Fair asks.
"I swear to God, I never heard of em," Alber says. "Never saw em. Never heard of em."
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@body:The FBI had more than enough evidence to arrest Frank Alber on February 25. In a search of his home, federal agents found a draft of the extortion letter to Kaplan and other incriminating items.

They also found something they considered critical at the time to their conspiracy theory: a canceled check from Frank Alber to a Mike Miller.

Things were coming together.
Alber waived his right to an attorney down at FBI headquarters after his arrest. At first he denied wrongdoing, admitting little more than that he had fallen on financial hard times and was working nights at a 7-Eleven store.

He told the agents he didn't know a Mark Nelson. But he did know a Mike Miller, he said. Did he write a check to that Miller recently? the feds asked him. Sure did, Alber said. That's the name of my divorce lawyer.

The agents then told Alber they had a tape recording of his recent conversation with Rick Fair. Alber admitted he had asked Fair to make the extortion call, because he'd feared Marc Kaplan would recognize his voice.

Alber swore, however, he hadn't sent the extortion note and "had no idea" how a draft of the letter had gotten into his home.

Despite many, many unresolved questions about the involvement of Mark Nelson and Mike Miller, prosecutor Chuck Hyder felt comfortable enough on February 26, 1992, to present the conspiracy case to a federal grand jury.

Keith Tolhurst, the FBI special agent in charge, testified that Mike Miller had not made the extortion call, though Miller's fingerprints were on the pay phone. The agent admitted he hadn't been able to link Nelson and Miller except for the single meeting at Saguaro Lake.

As for a prior relationship between Nelson and Frank Alber, Tolhurst testified it wasn't "conclusive, but we do know that Mr. Alber was attempting to promote a concert with some large-name musical acts . . . and we also know that Mark Nelson claims to be a music promoter of some type."

And what about Alber and Mike Miller? "The only connection that we really have at this time is that they both seem to live in the Chandler area," the agent replied. The government neglected to tell the grand jury about the secretly taped discussion between Frank Alber and his friend Rick Fair.

That conversation--I swear to God, I never heard of em"--certainly favored the suspects. Under federal law, Hyder was obliged to present any exculpatory evidence--that is, evidence that might clear the suspects.

MDRV"I knew of the tape," Hyder says, "but I hadn't read the transcript or heard it before we went to the grand jury. You have to understand, the investigation wasn't completed when we presented the case. We feared for the safety of the boy and we had to go early. The grand jury heard everything that I knew at the time."

But there were other oddities. Although there were four men at Saguaro Lake that day, Hyder brought charges only against Miller and Nelson. Hyder won't say why he didn't prosecute MDNMthe two other men who had been at the lakeMDRV.MDNM MDRVBut it appears tMDNMhe feds had as muchMDRV, MDNMor as littleMDRV, MDNMevidenceMDRVon the other two men as they had on Nelson.MDNM

MDRVLast February 26, MDNMthe federal grand jury indicted Alber, Nelson and Miller on charges of conspiracy and of mailing threatening communications.

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@body:The FBI interviewed dozens of people in the days after the indictments against the three men. But the government's case kept getting weaker and weaker.

"We try to gather as much information as possible during our investigation," FBI Special Agent Al Davidson tells New Times, "and then let the prosecutor make the decisions about where to go from there. Sometimes, there may be enough evidence to show 'probable cause' that a person has committed a crime, but there isn't enough to convict that person. That may be what happened in this case."
Mike Miller's boss told the feds Miller hadn't worked that day because of the rain, but had dropped by his house late that afternoon with his friend and co-worker, Bennett. Miller told him he and Bennett had met two other men at the lake. One of them, the longhaired one, had given him a business card, which he showed the boss.

The boss added that he couldn't fathom Miller being part of an extortion plot. Why, the kid didn't plan for more than a few hours ahead, and even then, it concerned only when and where he was going to party.

Miller's friend corroborated, in a separate FBI interview, Miller's goofy story about following a rain cloud to Saguaro Lake. Bennett, too, said he didn't know Mark Nelson or Nelson's friend.

A search of Miller's home produced a marijuana plant, but absolutely nothing that connected him to a conspiracy. For unexplained reasons, the feds didn't search Nelson's apartment or his car for evidence.

Nelson's friend Jeff told the FBI he had been the one who had started the infamous lakeside conversation with Mike Miller and the other fellow. And what about that stop at the McDonald's restaurant on the way from the lake?

Jeff said he had had to go to the bathroom. He knew nothing about the man in the green Mercedes--Marc Kaplan--other than that Nelson had said something nice about the man's car on the way from the lake.

As weeks, then months, wore on, the feds tried diligently to prove the Republic was on-target when it called the Kaplan investigation a shining example of "how the FBI performs on a regular basis." But the investigation that had drawn such raves seemed to be going south faster than Mark Nelson's little red Corvette.

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@body:Phoenix attorney Dan Maynard normally handles corporate matters, not criminal cases like the would-be kidnaping and maiming of a child. How Maynard got into the case last fall as Nelson's second attorney is a story in itself.

One of Maynard's major corporate clients had heard Mark Nelson's tale of woe while Nelson was painting his house. The client asked Maynard to take a look at the strange case as a favor. Maynard did so, and was immediately intrigued.

"I spent the weekend with the file," Maynard says, "and I thought that it was one of the craziest stories I had ever seen. I couldn't believe that the government hadn't dropped the case against Nelson. Instead, Hyder strung us out and kept getting tougher and tougher on the kid."
Nelson remembers one of the first comments Dan Maynard made to him.
"He told me, 'You're either Sir Lawrence of Olivier or you've been framed,'" Nelson says.

But Chuck Hyder wouldn't ease up on Nelson, despite the thin case against him. In May, Hyder had asked Judge Robert Broomfield to place Nelson under house arrest. Nelson had been ordered to stay away from the East Valley, but volunteered to authorities that he had spent a few minutes in Scottsdale visiting his girlfriend, who had just miscarried their child.

House arrest meant Nelson had to wear a homing device on his ankle that told authorities where he was at all times. He also was to stay at his parents' home in west Phoenix and to abide by a strict curfew.

"I thought the case against Nelson was pure chickenshit," says attorney Maynard, "and so was the manner in which Mr. Hyder was dealing with him."
MDRVResponds Hyder, "I want you to know from a personal standpoint that I don't play these kinds of games. I'm satisfied with what I've done with the case."MDNM

MDRVBut tMDNMhis was not the first time Hyder's ethics had been questioned; he had been accused of "prosecutorial misconduct" a few years ago in a highly publicized murder case. A former Maricopa County attorney, Hyder is a career prosecutor respected by many for his successes in putting bad guys behind bars. But last year, his reputation was tarnished--some say ruined--after defense attorneys accused him of concealing key evidence in a 1970s arson-murder case.

Hyder prosecuted John Henry Knapp on charges of intentionally setting the fire that killed his two young daughters. The first trial ended in a hung jury, the second trial in a conviction that landed Knapp on death row for 12 years.

But Knapp then won the right to a third trial. His new lawyers reinvestigated, and a Maricopa County Superior Court judge considered Hyder's alleged wrongdoing at a pretrial hearing.

"The horror of the dark heart of this case," defense attorney Larry Hammond argued, "is that the prosecutor himself, and those who assisted him in the prosecution, chose to hide from view the evidence of Mr. Knapp's innocence."
Hyder denied any wrongdoing, testifying only that he had made some "honest mistakes."

After a hearing that lasted five weeks, Judge Frederick Martone concluded, "There may be some evidence in this case that could support a finding of prosecutorial misconduct. . . ." Martone declined to dismiss the case against Knapp, but suggested the State Bar investigate Hyder. The results of that investigation are pending.

(With a new prosecutor, the third Knapp trial ended last year in a hung jury. Knapp finally plea-bargained in the case--while maintaining his innocence to the end--and was sentenced to time served.)

"I started to think I was dealing with a guy who is a zealot when it comes to his cases," Dan Maynard says. "The only way out of this was to go to trial."
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@body:A few days before the latest trial date for the alleged conspirators last month, Chuck Hyder mailed letters to Mark Nelson and Mike Miller's attorneys.

"I hadn't heard from him since the last time we saw him in court," Dan Maynard says of Hyder. "The guy was stringing us out. The letter was simple: He was dismissing the case against my client and Michael Miller."
That week, "mastermind" Frank Alber pleaded guilty. He faces a prison term of undetermined length at his upcoming sentencing.

The government dismissed the case against Nelson and Miller in such a way that charges may be refiled at a later date. But everyone familiar with the caseMDRV--except Hyder--MDNMagrees that is highly unlikely.

MDRV"I still think they're involved," Hyder tells New Times, "though I'm not 100 percent confident with the evidence. Something nagged at my gut and still nags at my gut.MDNM

MDRV"To say the case is concluded would be inaccurate."MDNM
Mark Nelson says the first thing he did upon hearing the news was to go to the federal Pretrial Services Office and have his ankle device cut off.

"The people there were really happy for me," he says. "They said they knew I was innocent."
But life hasn't been peachy for Nelson in the month or so since charges against him were dropped. He says he's hurting for money and that many people still won't have anything to do with him.

"It's like they think I got off on a technicality, that I'm guilty," he says. "It sucks.