Back to the index
UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE ARTHUR S. WEISSBRODT, JUDGE
In Re: ) Case No. 98-51326-ASW
) Chapter 13
)
HOWARD KEITH HENSON, )
) TRIAL
) Volume II
Debtor. ) Pages 180 to 362
)
)
) Monday, September 30, 2002
) San Jose, California
Appearances:
For the Debtor: Law Offices of Stanley A. Zlotoff
By: Stanley A. Zlotoff, Attorney at Law
300 South First Street, Suite 215
San Jose, California 95113
For Creditor Religious Moxon & Kobrin
Technology Center: By: Helena K. Kobrin, Attorney at Law
3055 Wilshire Boulevard, Suite 900
Los Angeles, California 90010
McPharlin, Sprinkles & Thomas
By: Elaine M. Seid, Attorney at Law
10 Almaden Boulevard, Suite 1460
San Jose, California 95113
Paul, Hastings, Janofsky & Walker LLP
By: Samuel D. Rosen, Attorney at Law
75 East 55th Street
New York, New York 10022-4597
Electronic Court United States Bankruptcy Court
Recorder: Clerk of the Court
LaKeska Blue and Liz Armendariz
280 South First Street, Room 3035
San Jose, California 95113
(408) 535-5003
Certified Electronic Palmer Reporting Services
Transcriber: P. O. Box 30727
Stockton, California 95213-0727
Proceedings recorded by digital recording;
transcript produced by federally-approved transcription
service. I N D E X
Witnesses:
Direct Cross Redirect Recross
Victoria Arel Lucas
By Mr. Zlotoff
(resumed): 183
By Mr. Rosen: 343
Exhibits: Received in Evidence
Creditor's Exhibits 1 - 14, 16 - 18,
20 - 22, 25, 27 - 37, 39 - 44, 46 - 48,
53 - 62, 65 - 69, 72, 73, 75 - 78,
80 - 84, 86, 88 - 100, 104, 107, 109,
111 - 116, 121, 122, 124 - 130,
133 - 135, 140 - 160, 164 - 168, 171,
173, 174, 177 - 180, 182, 183,
186 - 189, 191, 194 - 207, 209 - 213,
215, 216, 221, 222, 224 - 226,
239 - 234, 236, 238, 249 - 251,
253 - 256, 257, 258, 260 - 262,
264 - 270, 272 - 279, and 286: page 248
Debtor's Exhibits A and B: page 286
Debtor's Exhibits C and D: page 287
Debtor's Exhibit F: page 288
Debtor's Exhibits G and H: page 289
Debtor's Exhibit L: page 286
182
1 Monday, September 30, 2002 10:41 o'clock a.m.
2 P R O C E E D I N G S
3 THE CLERK: Please rise. This is the United States
4 Bankruptcy Court for the Northern District of California. Court
5 is now in session.
6 THE COURT: Good morning, ladies and gentlemen.
7 Please be seated.
8 This is the case of Keith Henson. May I have
9 appearances of counsel.
10 MR. ZLOTOFF: Stan Zlotoff for the debtor.
11 MR. ROSEN: For creditor Religious Technology Center,
12 Samuel D. Rosen, Paul, Hastings, Janofsky and Walker.
13 THE COURT: Good morning, counsel.
14 MR. ROSEN: Good morning, Your Honor.
15 MS. SEID: Elaine Seid, McPharlin, Sprinkles and
16 Thomas, also appearing on behalf of the creditor.
17 MR. ROSEN: And, Your Honor, Ms. Kobrin, as you can
18 see is not physically here. She's on her way, so we will note
19 her appearance as well.
20 THE COURT: Yeah.
21 Shall we call Ms. Lucas to the stand?
22 MR. ZLOTOFF: Yes. Why don't we do that, Your Honor.
23 Ms. Lucas.
24 VICTORIA AREL LUCAS, DEBTOR'S WITNESS, PREVIOUSLY SWORN
25 THE COURT: Good morning, Ms. Lucas. You were sworn
183
1 in yesterday. I remind you that you're under oath. You may
2 take the stand.
3 MR. ROSEN: Friday.
4 THE COURT: Oh, it was Friday. That's right.
5 That's fine. Thank you.
6 Go ahead, counsel.
7 MR. ZLOTOFF: Thank you, Your Honor.
8 THE COURT: For the record, it was Friday. Today's
9 Monday morning.
10 DIRECT EXAMINATION, resumed
11 BY MR. ZLOTOFF:
12 Q. Ms. Lucas, were you present with - with Mr. Henson at the
13 moment when he was served with RTC's lawsuit for copyright
14 infringement?
15 A. I don't remember. He was served so many times that I can't
16 remember all the specific instances.
17 Q. Do you know why he filed Chapter 13?
18 MR. ROSEN: Objection.
19 THE COURT: Overruled.
20 MR. ROSEN: Not only is it hearsay, it calls for
21 mind-reading.
22 THE COURT: No. It calls for a yes or no.
23 And you can answer it yes or no.
24 THE WITNESS: Yes.
25 BY MR. ZLOTOFF:
184
1 Q. What - what are the reasons, as you know them, of your own
2 personal knowledge?
3 MR. ROSEN: Objection.
4 THE COURT: Sustained.
5 BY MR. ZLOTOFF:
6 Q. Ms. Lucas, are you aware of someone named Grady Ward?
7 A. Yes.
8 Q. And who is Grady Ward?
9 MR. ROSEN: Objection, irrelevant.
10 MR. ZLOTOFF: Your Honor, it's relevant on the issue
11 of Mr. Henson's perceived need to file a Chapter 13. Grady Ward
12 is an individual similarly situated, we believe.
13 MR. ROSEN: I bet to differ.
14 MR. ZLOTOFF: In - in other words, someone who was
15 sued by RTC, filed bankruptcy.
16 MR. ROSEN: Your Honor, I not only beg to differ but I
17 must object most strenuously to counsel testifying about matters
18 that are not before you. The record in this case before you
19 consists of exhibits and any testimony that's been offered.
20 Counsel's testimony from the counsel table as to who Mr. Ward is
21 or what - that he was sued by RTC is not only irrelevant but it
22 is beyond this record.
23 If counsel wants to make that proposition and he
24 believes it's relevant, he ought to put somebody on the witness
25 stand.
185
1 MR. ZLOTOFF: Your Honor, -
2 THE COURT: The objection is simply does she know who
3 he is, and the objection's overruled.
4 BY MR. ZLOTOFF:
5 Q. Of your own knowledge -
6 THE COURT: Wait.
7 You can answer the question. Do you know who he is?
8 THE WITNESS: Yes.
9 BY MR. ZLOTOFF:
10 Q. Okay. Of your own knowledge, could you explain what you
11 know about Grady Ward and RTC?
12 MR. ROSEN: Objection. Calls for -
13 THE COURT: What's the relevance, counsel?
14 MR. ZLOTOFF: The relevance -
15 THE COURT: He filed for bankruptcy? Many people file
16 for bankruptcy. Why is it relevant to what you're trying to
17 prove in this case?
18 MR. ZLOTOFF: Because one of - because one of -
19 because I read the Eisen case, Your Honor. And one of the - one
20 of the - one of the key things, I think, is going to be why did
21 he file bankruptcy. There's an allegation that he didn't need
22 to file bankruptcy. And - and I'm going to show with this
23 testimony of Grady Ward that there was a legitimate reason to
24 file bankruptcy.
25 THE COURT: You're not showing it with the testimony
186
1 of Grady Ward, are you?
2 MR. ZLOTOFF: No.
3 MR. ROSEN: Nor, Your Honor, is he showing you any
4 bankruptcy filing by Mr. Ward.
5 MR. ZLOTOFF: I don't have to. That's not the point.
6 That's not the point. The point is generally what was known
7 about Grady Ward.
8 MR. ROSEN: Your Honor, with all due respect, what was
9 known about Grady Ward, to the extent it has any relevance, and
10 I see none, the proper inquiry would be what was known about
11 Grady Ward by Mr. Henson; to the extent that had anything to do
12 with the operation of his mind in filing a bankruptcy petition
13 in February of 1998. That's not this witness.
14 And, again, counsel is simply - it is very
15 transparent. Counsel is simply trying to put in through this
16 witness evidence which, if it came in at all, it would be
17 properly offered through Mr. Henson, who is not here.
18 MR. ZLOTOFF: Your Honor, -
19 THE COURT: Well, Mr. Zlotoff, I haven't decided
20 whether to let in any evidence about Grady Ward, but you've
21 established no foundation whatsoever. And on that ground I'm
22 not going to let any testimony in until you establish a
23 foundation. You haven't even established that she knows him.
24 You haven't established anything that would provide a basis for
25 me even to consider the testimony.
187
1 You said from her personal knowledge, which means
2 nothing. You haven't established a foundation. From what
3 people have told her? I have no idea what this is intended to
4 do -
5 MR. ZLOTOFF: Well, -
6 THE COURT: - and therefore the objection's sustained
7 at this point.
8 MR. ZLOTOFF: Well, but may I - may I try to establish
9 foundation, Your Honor?
10 THE COURT: Sure.
11 BY MR. ZLOTOFF:
12 Q. Okay. Of your own personal knowledge what do you know about
13 Grady Moore -
14 MR. ROSEN: Objection.
15 BY MR. ZLOTOFF:
16 Q. - Grady Ward?
17 MR. ROSEN: That's not a foundation.
18 THE COURT: That's not a foundation question.
19 BY MR. ZLOTOFF:
20 Q. Do you have - are you aware of Grady Ward's having been sued
21 by RTC?
22 MR. ROSEN: Objection. Relevance, no foundation,
23 calls for hearsay.
24 THE COURT: Overruled.
25 THE WITNESS: Yes.
188
1 BY MR. ZLOTOFF:
2 Q. Are you aware whether that happened - are you aware of the
3 timeframe when that happened?
4 MR. ROSEN: Objection. The same objection:
5 Relevance, foundation. She hasn't - counsel has not even
6 established were you aware of whether or not this is hearsay.
7 There's no basis - no foundation laid that this witness has any
8 firsthand knowledge even assuming relevance.
9 THE COURT: Sustained.
10 MR. ROSEN: A lot of people were aware of it.
11 THE COURT: Sustained.
12 BY MR. ZLOTOFF:
13 Q. How did you come to know of RTC litigation with Grady Ward?
14 A. I first heard about it from my husband and later I talked
15 with Mr. Ward. I met him and talked with him personally and
16 over the telephone.
17 Q. And what did you find out from Mr. Ward regarding litigation
18 with RTC?
19 MR. ROSEN: Objection. Calls for hearsay.
20 THE COURT: Sustained.
21 BY MR. ZLOTOFF:
22 Q. Did you find out that Mr. Grad- - Mr. Ward filed a
23 bankruptcy petition?
24 MR. ROSEN: Objection. Not only relevance, hearsay
25 and best evidence rule. Rule - Federal Rule of Evidence 1001 to
189
1 1007.
2 THE COURT: Sustained.
3 BY MR. ZLOTOFF:
4 Q. Was - at the point - are you aware of the time when Mr.
5 Henson filed his Chapter 13? Are you aware of the date when
6 that happened?
7 A. I believe the initial filing was in February of '98 and I
8 think it was reinstated in April or June of the same year.
9 THE COURT: If you would back up from the mic just an
10 inch you won't create the static.
11 THE WITNESS: Sorry. Sorry.
12 Is that better?
13 BY MR. ZLOTOFF:
14 Q. Are you aware of what bank accounts Mr. Henson had at the
15 time?
16 MR. ROSEN: Objection. No firsthand - no foundation.
17 This is hearsay, number one.
18 THE COURT: Overruled.
19 MR. ROSEN: And, number two, - Your Honor, may I just
20 state my objection for the record?
21 THE COURT: Sure.
22 MR. ROSEN: The best evidence of what bank accounts
23 Mr. Henson had at the time are the statements from the bank. It
24 doesn't have to coincide with the exact date of filing because
25 it never does, but if the question is what bank accounts Mr.
190
1 Henson had -
2 THE COURT: That wasn't the question.
3 MR. ROSEN: Yeah. He asked whether she was aware of
4 what bank accounts he had.
5 THE COURT: That's right. And the objection's
6 overruled.
7 BY MR. ZLOTOFF:
8 Q. How many bank accounts did he have at the point of
9 commencement of the bankruptcy -
10 MR. ROSEN: Objection.
11 THE COURT: Overruled.
12 THE WITNESS: He had an account at Wells Fargo which
13 was a joint account with me.
14 I'm sorry. How far do I have to get from this thing?
15 Is this good?
16 THE COURT: Probably about - I think that's good.
17 THE WITNESS: This is good? Okay.
18 BY MR. ZLOTOFF:
19 Q. Are you aware of your own recollection at this point how
20 much roughly was in that bank account at that time?
21 THE COURT: Which time, Mr. Zlotoff?
22 MR. ZLOTOFF: At or about the time when he filed, when
23 he commenced his Chapter 13 petition.
24 THE WITNESS: I have seen the papers, so that did
25 refresh my memory, and it seems to be correct to me that it was
191
1 around 1500.
2 MR. ROSEN: Objection. Move to strike it. The
3 witness had no independent knowledge of this on Monday - on
4 Friday.
5 MR. ZLOTOFF: And she refreshed her recollection, Your
6 Honor.
7 THE COURT: Overruled.
8 BY MR. ZLOTOFF:
9 Q. Are you aware of balances - the range of balances subsequent
10 to that date, let's say on through roughly August of that year
11 of 1998?
12 MR. ROSEN: Objection, best evidence rule. The best
13 evidence what the balances were at any given time or at any
14 month end cycle are the documents.
15 Your Honor, I must press this objection. I mean it is
16 so clear under Federal Rule of Evidence 101 to 107, she cannot
17 testify to this. And I - and I have a case right on point which
18 I - which I'm willing to give Your Honor as to what the best
19 evidence rule means. This is absolutely improper for the
20 witness to testify as to what a document - as to information
21 that's contained in a document.
22 MR. ZLOTOFF: First of all, I - I'm not asking about
23 terms of the document. I'm simply asking whether she has
24 independent recollection of balances, rough balances,
25 approximate balances during a certain period of time. I'm not
192
1 asking her to quote line and verse of a what particular balance
2 was.
3 MR. ROSEN: Excuse me, but -
4 MR. ZLOTOFF: Nonetheless I have bank balances and
5 I've given copies to Mr. Rosen. And these were documents he
6 subpoenaed, RTC subpoenaed. I have copies of them. I've given
7 him copies. They were in his book of evidence before, I think,
8 at 187 and 188.
9 And - and I'm prepared to give the witness -
10 THE COURT: You have to give it to my Deputy to mark
11 it the next in line, but then you can proffer it if you want.
12 MR. ZLOTOFF: Okay.
13 MR. ROSEN: Your Honor?
14 THE COURT: Wait a second.
15 MR. ROSEN: Sure.
16 THE COURT: It hasn't been proffered.
17 MR. ZLOTOFF: Yeah.
18 It would be O, I think.
19 THE CLERK: Yes.
20 (Creditor's counsel confer off record.)
21 THE CLERK: Mr. Zlotoff?
22 MR. ZLOTOFF: I'm sorry. What?
23 THE COURT: It's a statement, what do you - the
24 description -
25 MR. ZLOTOFF: A Wells Fargo statement - statements.
193
1 MR. ROSEN: Could we not show it - may I ask it not be
2 shown to the witness yet?
3 THE COURT: No, you may not.
4 Give it to the witness.
5 THE WITNESS: Thank you.
6 THE COURT: Mr. Zlotoff.
7 MR. ROSEN: Your Honor, may I see the original?
8 THE COURT: Do you have the original?
9 MR. ZLOTOFF: Do I have the original of the statement?
10 No, I do not. I believe duplicates are acceptable for Federal
11 Rules of Evidence, though.
12 MR. ROSEN: I object on two grounds to this, and this
13 is going to carry through because apparently from the folder I'm
14 assuming Mr. Zlotoff has other documents he's going to offer.
15 The first ground is that this is not on his witness
16 list. This Court has been extraordinarily gracious, and I can
17 go through every order of the Court respecting pretrial
18 proceedings that Mr. Zlotoff has not complied with. This one is
19 untenable.
20 This witness - this document was supposed to be on the
21 witness list in the joint pretrial order filed in March of 2001;
22 it was not. It was supposed to be on the witness list in
23 August; it was not. It was supposed to be delivered to us, as
24 Your Honor ordered an exchange of exhibits; it was not.
25 Your Honor has before you Mr. Zlotoff's witness list
194
1 of August 1, 2002. It is not on there. That's the first
2 objection.
3 The second objection is contrary to what Mr. Zlotoff
4 just said, that copies are admissible in lieu of originals, I
5 direct Your Honor's attention to Federal Rule of Evidence 1002.
6 I will read it since it's very short. "To prove the content of
7 a writing, recording, or photograph, the original writing,
8 recording, or photograph is required, except as otherwise
9 provided in these Rules or by an act of Congress."
10 I haven't heard anything from Mr. Zlotoff by way of
11 the "except as otherwise required." The rule is exactly
12 contrary to what Mr. Zlotoff just said.
13 THE COURT: First, is it in any of these volumes, this
14 already?
15 MR. ROSEN: Those are ours.
16 THE COURT: I understand. Is it in any of those
17 volumes?
18 MR. ROSEN: I think - I don't know if it was - no, I
19 think it was removed. It was originally - when we filed our
20 exhibit list, Your Honor, in March of 2001, before Mr. Henson
21 fled, we put in documents that we anticipated using if he were
22 on the witness stand. When it thereafter became apparent of
23 recent times that Mr. Henson was not appearing at trial, when
24 Your Honor was not going to let him testify, we then withdrew
25 documents that we did not need. And if - and they - and those
195
1 documents are not part of the exhibits, number one.
2 Number two, and even if they were, they're not on Mr.
3 Zlotoff's witness list. They never were.
4 THE COURT: How about addressing the issue of
5 prejudice?
6 MR. ROSEN: What is the number, by the way, that
7 counsel says is - this is our Exhibit Number 1?
8 MR. ZLOTOFF: It's either 1 - it was formerly 1- -
9 either 186, 187, or 188.
10 MR. ROSEN: Well, if Your Honor will give me a second,
11 I have them, as - as do you.
12 MR. ZLOTOFF: I don't have them in -
13 MR. ROSEN: 186 is a transcript of proceedings before
14 this Court of 1 - of July 10, 2002.
15 MR. ZLOTOFF: No, no, no. The former - in the former
16 trial binder -
17 MR. ROSEN: The former trial binders are withdrawn.
18 THE COURT: Wait a second. Gentlemen, I've told you
19 again. Now it's you, Mr. Zlotoff. You cannot address each
20 other. You can only address the Court.
21 I've asked you to address the question of prejudice.
22 That's to you, Mr. Rosen. What prejudice would - would there be
23 in admitting this bank record subject to a certification from
24 the bank that it's a valid record?
25 MR. ROSEN: Are you asking me, Your Honor?
196
1 THE COURT: Yes.
2 MR. ROSEN: The prejudice is we're in the middle of
3 trial. This is surprise. And I don't believe I have to show
4 prejudice in the face of a series of outstanding orders by this
5 Court which Mr. Zlotoff has not complied with.
6 I will start with the order which preceded the March
7 13, 2001 pretrial con- -
8 THE COURT: But he admits it's not on the exhibit
9 list, Mr. -
10 MR. ROSEN: And he admits that even as of the time he
11 was supposed to give his exhibits, a couple of weeks ago, he
12 didn't give it to us. And -
13 THE COURT: Do you have any prejudice to allege?
14 MR. ROSEN: Yes. Of course I have prejudice to
15 allege.
16 THE COURT: Well, then you should allege it.
17 MR. ROSEN: Okay. I will now have to deal with this
18 additional evidence. And I don't know how quickly I can deal
19 with it. I don't know if I'm going to need witnesses to deal
20 with it. I am prejudiced by the fact I don't have Mr. Henson
21 here to examine.
22 What if I have to call witnesses or offer additional
23 documents to - to refute this statement?
24 I'm also prejudiced by the fact that now I have to
25 deal with this in the context of 20 hours that Your Honor has
197
1 allocated. I have no idea if Your - if Your Honor admits this,
2 what additional time and witnesses and exhibits I am going to
3 have to offer to refute anything that's in there. That is
4 prejudice in the middle of trial and I would respectfully submit
5 that prejudice exists as a matter of law. It's not even an
6 issue when Your Honor has issued a series of specific orders
7 going back to early 2001, one after the other after the other on
8 exhibits, and Mr. Zlotoff has not complied.
9 THE COURT: The objection is overruled. The prejudice
10 - the prejudice that's alleged is purely speculative. This is
11 subject to providing a certified copy, and it should be done
12 promptly.
13 MR. ROSEN: Your Honor, to save ourselves some time on
14 this, is this going to be the same with respect to anything else
15 that Mr. Zlotoff pulls out of his bag that's not on his witness
16 list?
17 THE COURT: I rule on documents as they come in.
18 BY MR. ZLOTOFF:
19 Q. Do you have Exhibit O in front of you, Ms. Lucas?
20 A. Yes.
21 Q. Is this the bank account to which you had previously
22 referred?
23 A. Yes.
24 THE COURT: Do you want to make an offer of proof of
25 how you got this, Mr. Zlotoff?
198
1 MR. ZLOTOFF: I got this from the subpoenaed documents
2 of RTC from Wells Fargo Bank.
3 THE COURT: Do you deny that these were subpoenaed by
4 you from Wells Fargo Bank?
5 MR. ROSEN: I have no recollection. We don't if we
6 got -
7 THE COURT: But Ms. - what about Ms. Kobrin?
8 MR. ROSEN: I just asked her. She doesn't remember
9 either.
10 MR. ZLOTOFF: It was Mr. Hogan who subpoenaed them.
11 MR. ROSEN: Excuse me. I wasn't even involved in the
12 case at the time. But I don't know if these documents were
13 produced by Mr. Henson or by the bank. And I would have -
14 (Creditor's counsel confer briefly off record.)
15 MR. ROSEN: And I would have to make an inquiry. I
16 mean if counsel has a - this - I'm at a distinct disadvantage
17 because this occurred before I entered the case, so if counsel -
18 THE COURT: Not before Ms. Kobrin, who is sitting by
19 your left side, entered the case.
20 Do you want to enter your appearance? Could you enter
21 your appearance?
22 MS. KOBRIN: Your Honor, I have not memorized -
23 THE COURT: Could you enter your appearance, please?
24 MS. KOBRIN: Yes. Helena Kobrin from Religious
25 Technology Center.
199
1 I have not memorized what documents were produced by
2 whom. I can't answer -
3 THE COURT: And you have no recollection?
4 MS. KOBRIN: I've - I - looking at these documents, I
5 don't know which - what the source was.
6 THE COURT: Okay. Do you - do you... Do you know
7 whether they were produced by Wells Fargo or by Mr. Henson?
8 MR. ZLOTOFF: I know that they were produced by Wells
9 Fargo Bank because our - because Mr. Hogan or his office
10 delivered copies to me. Ms. -
11 THE COURT: Okay.
12 MR. ZLOTOFF: You know, -
13 THE COURT: The objection's overruled subject to
14 certification.
15 MR. ZLOTOFF: May I bring in copies of the subpoena
16 with all the documents attached that I received? Would that be
17 sufficient verification, Your Honor?
18 THE COURT: Frankly I would - if you could bring - I
19 think that that's okay, but I would have to look that up, Mr.
20 Zlotoff.
21 MR. ZLOTOFF: Okay.
22 THE COURT: So bring it with a case -
23 MR. ZLOTOFF: All right.
24 THE COURT: - if you're going to bring that.
25 MR. ZLOTOFF: Okay. Thank you, Your Honor.
200
1 Now the offer of proof is that these statements are
2 for the period June '98, July '98, August '98, with each
3 statement bearing a zero balance in the account.
4 BY MR. ZLOTOFF:
5 Q. Do you know why the balance was zero for all those three
6 months?
7 A. I can think of two reasons.
8 MR. ROSEN: I object, Your Honor. This is obviously
9 speculation. The question is does she know why. And if the
10 answer is yes, I'd ask counsel to provide a foundation before
11 the witness provides her speculation as to two reasons.
12 MR. ZLOTOFF: Your Honor, -
13 THE COURT: It does sound like speculation, -
14 MR. ZLOTOFF: Right.
15 THE COURT: - the way she phrases herself. So -
16 MR. ZLOTOFF: Okay.
17 BY MR. ZLOTOFF:
18 Q. Do you - okay.
19 THE COURT: So you need - you need to ask questions.
20 BY MR. ZLOTOFF:
21 Q. Do you know why the balance was zero during those three
22 months?
23 A. Yes. There were a couple of reasons. One was that RTC had
24 confiscated funds from that account and -
25 MR. ROSEN: I object and move to strike it. There's
201
1 no evidence that RTC confiscated funds. This is hearsay. The
2 best evidence of whether RTC confiscated funds is a copy of a
3 notice of levy or execution.
4 I - I must continue to insist that Your Honor note
5 that this is nowhere in this record, it's nowhere in the
6 exhibits. It's not before you. And this is just an attempt to
7 try to load up the record with hearsay and to blatantly violate
8 the best evidence rule.
9 MR. ZLOTOFF: Your Honor, it seems to me that these
10 are all matters that Ms. Lucas could be cross-examined on.
11 It's -
12 THE COURT: But she can't - she's testifying as to
13 something that would be a matter of paper record. If she has an
14 independent knowledge that that was done, she can say what was
15 done, if she knows. That's -
16 MR. ZLOTOFF: That's what she's trying to do, Your
17 Honor.
18 THE COURT: Well, - okay.
19 Do you know in fact that that was done?
20 THE WITNESS: Yes.
21 THE COURT: Yeah, you can testify.
22 BY MR. ZLOTOFF:
23 Q. How do you know it was done?
24 A. We received documents to that effect.
25 MR. ROSEN: I move to strike this. Again, if the
202
1 basis of her knowledge is she received some document, where is
2 the document?
3 MR. ZLOTOFF: We don't need - we're not - we - the
4 doc- -
5 THE COURT: Overruled. It's overruled.
6 MR. ZLOTOFF: Okay.
7 BY MR. ZLOTOFF:
8 Q. And -
9 A. Another reason was that my husband had lost his largest
10 client and had little to no income during that period of time.
11 MR. ROSEN: I object, Your Honor, and move to strike
12 it. There was no question before the witness and this is
13 obviously hearsay. She doesn't know anything about her
14 husband's largest client or that he lost it. This is nothing
15 but an attempt to get through this witness' mouth what Mr.
16 Henson would - might testify to if he were not a fugitive.
17 MR. ZLOTOFF: Your Honor, he - she can be
18 cross-examined about this. She - the - she -
19 MR. ROSEN: That's not a - I'm sorry.
20 MR. ZLOTOFF: Your Honor, they were husband and wife.
21 They lived together for - for - I mean maybe he's right, but he
22 can cross-examine her and rip her to shreds, I guess. But it
23 seems to me that it's - most husbands or most wives would know
24 or would likely know what - what kind of business affairs, if
25 any, their spouses are engaged in.
203
1 MR. ROSEN: Your Honor, -
2 THE COURT: You need to be at the microphone, please.
3 MR. ROSEN: Your Honor, the argument that she can be
4 cross-examined on it is a non sequitur. It has nothing to do
5 with the admissibility of evidence. For that matter then
6 everything is in and we don't need this book. We can throw away
7 the Federal Rules of Evidence and just say, okay, cross-examine.
8 That's the first thing.
9 The second thing is, as we established on Friday, this
10 witness and her husband enjoyed a relationship where they didn't
11 even know where each other worked. And I don't care what
12 counsel says from counsel table and testifying as to husband and
13 wife, this is the relationship between Mr. Henson and this
14 woman.
15 THE WITNESS: Your Honor, -
16 THE COURT: Oh, the object- - no, you can't speak.
17 THE WITNESS: All right.
18 THE COURT: The objection's overruled.
19 And there was a question on the table because she was
20 starting to finish her answer that there were two reasons that
21 the balance was zero, and that was the second reason.
22 BY MR. ZLOTOFF:
23 Q. And -
24 MR. ROSEN: And, Your Honor, by the way, I'm sorry,
25 there's a third objection. And it - perhaps it's inherent in
204
1 it. The statement is, "My husband lost his largest client."
2 That's hearsay. There is no foundation. There is no showing
3 that this witness was - has any firsthand knowledge of the
4 largest clear or her husband having lost it.
5 MR. ZLOTOFF: Let me establish -
6 MR. ROSEN: By definition, anything she says on this
7 subject is not of her personal knowledge. It is blatant
8 hearsay.
9 MR. ZLOTOFF: Can I try to establish, Your Honor?
10 THE COURT: Sure.
11 BY MR. ZLOTOFF:
12 Q. Who opened the letters, the bills, the mail most of the time
13 during -
14 A. I did.
15 Q. - your relationship?
16 Was that true during 1998?
17 A. Yes.
18 Q. Who opened, if you recall, any letters containing W-2 forms
19 or 1099 forms?
20 MR. ROSEN: Objection.
21 THE COURT: Overruled.
22 THE WITNESS: I did.
23 BY MR. ZLOTOFF:
24 Q. Did you open - did you happen to open any envelopes
25 containing 1099 forms in which your husband was the - the named
205
1 party?
2 A. Yes.
3 Q. Do you remember how many such forms you opened -
4 MR. ROSEN: Objection.
5 BY MR. ZLOTOFF:
6 Q. - in 1998?
7 THE COURT: Overruled.
8 MR. ROSEN: Irrelevant as to whether she opened it.
9 The - the question is what the documents says. Where is the
10 document?
11 THE COURT: Overruled.
12 THE WITNESS: I believe there were - and you say in
13 1998?
14 BY MR. ZLOTOFF:
15 Q. Yes. This would be for the prior year.
16 A. For 1998, I remember one or two 1099s.
17 Q. And do you remember the - the amounts and the names of the
18 payors, the employers?
19 A. One was Cubic -
20 THE COURT: No. He's saying -
21 MR. ROSEN: Object- -
22 THE COURT: It's a yes or no question.
23 THE WITNESS: Yes.
24 BY MR. ZLOTOFF:
25 Q. And of your recollection, who were they?
206
1 MR. ROSEN: Objection.
2 THE COURT: Sustained.
3 MR. ZLOTOFF: Your Honor, -
4 THE COURT: It's all hearsay. It is hearsay, what she
5 read months ago. If it's offered for the truth and you're
6 offering it for the truth. You're trying to establish what a
7 document you haven't introduced into evidence, which hasn't been
8 authenticated said, that she remembers it said. Even the
9 document would be hearsay unless you authenticated it. And
10 you're trying to go from her recollection of what the document
11 said, so you have two problems.
12 MR. ZLOTOFF: Well, I -
13 THE COURT: The answer - I don't see how it could be -
14 how her testimony about what she read off some document can be
15 relevant for - I mean can be admitted for the truth. That she -
16 that she opened the document? Fine. And it - and if it's only
17 being offered for the truth, then it is irrelevant because it
18 can't be admitted for the truth. The testimony can't be
19 admitted for the truth. The document if properly authenticated
20 could be admitted.
21 MR. ZLOTOFF: Well, could I just respond briefly, Your
22 Honor?
23 I believe that her opening the letter, the envelope in
24 which the 1099 was located is a proper authentication, because
25 it establishes, essentially like a chain of - a chain of
207
1 possession.
2 THE COURT: That may be. I don't need to rule on
3 that.
4 MR. ZLOTOFF: And I also contend that such a document
5 would be - ought to be an exception to the hearsay rule based -
6 THE COURT: We don't have the document. We have her
7 telling what a document she read years ago, in 197- - '98, said.
8 MR. ZLOTOFF: Well, if I may, Your Honor.
9 Well, may I ask her if she remembers the names on the
10 - on the W- - on the 1099s?
11 THE COURT: Yes. You can ask her if she remembers the
12 names.
13 BY MR. ZLOTOFF:
14 Q. Do you remember the names on the 1099s?
15 THE COURT: It's a yes or no question.
16 THE WITNESS: Yes.
17 BY MR. ZLOTOFF:
18 Q. And can you say what those names - who those names were -
19 MR. ROSEN: Objection.
20 THE COURT: Sustained.
21 If offered to prove that those were the names on it,
22 it's hearsay.
23 BY MR. ZLOTOFF:
24 Q. Do you have personal knowledge of which - which client Mr.
25 Henson lost during 1998?
208
1 A. Yes.
2 Q. Who was that?
3 MR. ROSEN: Objection.
4 THE COURT: Sustained. Lack of foundation.
5 MR. ZLOTOFF: Your Honor, she's testified that the -
6 one of the reasons the bank account dwindled was because Mr.
7 Henson was not making money. She may have knowledge with regard
8 to what happened to one of these particular clients.
9 THE COURT: Absolutely.
10 BY MR. ZLOTOFF:
11 Q. Do you have -
12 MR. ZLOTOFF: May I ask her if she had knowledge on
13 her own of what happened, if anything, to one of the clients
14 that Mr. Henson had during 1997?
15 THE COURT: You can ask her, and it will be a yes or
16 no question.
17 THE WITNESS: Yes.
18 THE COURT: But - well, that's not a - I don't think
19 that was the question, Ms. Lucas.
20 THE WITNESS: I'm sorry.
21 THE COURT: Go ahead and ask.
22 MR. ZLOTOFF: Okay.
23 BY MR. ZLOTOFF:
24 Q. On your -
25 THE COURT: But that's - okay.
209
1 BY MR. ZLOTOFF:
2 Q. Of your own knowledge do you know what happened to any of
3 Mr. - any of the clients Mr. Henson had in 1997?
4 A. Yes.
5 Q. Can you tell us what happened?
6 MR. ROSEN: Objection.
7 THE COURT: Sustained. There's lack of foundation for
8 the basis of her knowledge.
9 BY MR. ZLOTOFF:
10 Q. How do you have knowledge of what happened to one of Mr. -
11 one of Mr. Henson's clients that he had during 1997?
12 A. I knew the people who started the company and who worked for
13 it.
14 Q. And what happened to this particular company?
15 MR. ROSEN: Objection, calls for hearsay.
16 THE COURT: Sustained.
17 BY MR. ZLOTOFF:
18 Q. Do you - were you aware of the location of this particular
19 company in 1997?
20 MR. ROSEN: Objection, relevance.
21 THE COURT: Subject to the relevance.
22 THE WITNESS: Yes.
23 BY MR. ZLOTOFF:
24 Q. And did this particular company have the same location in
25 1998?
210
1 MR. ROSEN: The same objection.
2 THE COURT: The same - still subject to relevance -
3 subject to being brought relevant.
4 THE WITNESS: It had no location in 1998.
5 MR. ROSEN: Objection, witness is not competent to
6 testify to that.
7 BY MR. ZLOTOFF:
8 Q. Did - did -
9 THE COURT: There's a lack of foundation.
10 BY MR. ZLOTOFF:
11 Q. Did you know where the location of this particular client
12 was?
13 A. Yes.
14 Q. Did you personally visit this location sometime in 1998?
15 A. Yes.
16 Q. At all points in 1998 was it still at the same location?
17 A. No.
18 Q. To your knowledge was it at any other location?
19 MR. ROSEN: Objection.
20 THE COURT: Overruled. She's testifying as to her
21 knowledge.
22 THE WITNESS: It had no other location, to my
23 knowledge.
24 BY MR. ZLOTOFF:
25 Q. Thank you.
211
1 In - for 1999 did you also most of the time open the
2 letters and envelopes that came to the house?
3 A. Yes.
4 Q. And in 1999 do you recall who opened any envelopes
5 containing 1099s or W-2s?
6 A. Yes, I did.
7 MR. ROSEN: Point of clarification. Is the - is
8 counsel asking the witness if she opened envelopes addressed to
9 Mr. Henson or just herself?
10 BY MR. ZLOTOFF:
11 Q. To - to Mr. Henson.
12 MR. ROSEN: Thank you.
13 THE WITNESS: Yes, to Mr. Henson.
14 BY MR. ZLOTOFF:
15 Q. And do you recall opening any envelopes containing Mr.
16 Henson's 1099 forms?
17 MR. ROSEN: Objection. We're going down the same
18 route, Judge.
19 THE COURT: I don't know if we're going down the same
20 route. If we're going down the same route, we shouldn't do
21 that, Mr. Zlotoff.
22 MR. ZLOTOFF: Well, for the...
23 THE COURT: If you have the 1099, that's a different
24 question.
25 MR. ZLOTOFF: I - I do have I think the 1099.
212
1 Yes, I do.
2 THE COURT: Do you want it marked - or it is marked?
3 MR. ZLOTOFF: It is already marked.
4 MR. ROSEN: So we're - what number is it, may I ask
5 the Court?
6 THE COURT: But let him handle his own examination, if
7 he's going to refer to it. Now I don't know whether he is.
8 MR. ZLOTOFF: Now I'm going to try.
9 BY MR. ZLOTOFF:
10 Q. Do you recall opening in 1999 - do you recall opening
11 envelopes containing any 1099 forms that were Mr. Henson's 1099
12 forms?
13 A. Yes.
14 Q. Do you recall of your own recollection how many envelopes -
15 A. In 1999?
16 Q. This would have been '99 for 1998.
17 A. For 1998. I think there were two.
18 Q. All right. I'm going to refer you to Exhibit J.
19 MR. ROSEN: Your Honor, -
20 THE COURT: Wait a minute. I haven't even gotten to
21 it yet.
22 MR. ZLOTOFF: We've got the document in.
23 THE COURT: And there's no question on the table.
24 There's no basis to object to.
25 MR. ROSEN: With all due respect, I have an objection
213
1 to showing the witness a document. I don't have to wait for a
2 question to object to the witness being - looking at the
3 document.
4 THE COURT: Okay. What's your objection, Mr. Rosen?
5 MR. ROSEN: This is a document Your Honor ruled
6 already in limine on September 11th is not admissible. If the
7 document is not admissible how could you possibly show the
8 document to the witness other than perhaps in a
9 refreshing-recollection mode? But how do you - I don't
10 understand this. Are we now going back and revisiting motions?
11 Mr. - Mr. Zlotoff argued this among his other
12 exhibits. You ruled expressly on September 11th this document
13 is not admissible. Now what's the basis for showing a witness a
14 document that's already been ruled inadmissible.
15 THE COURT: I just want to make sure we're talking
16 about the same thing. We're talking about a 10- - two 1099s
17 from two companies; is that what we're talking about?
18 MR. ZLOTOFF: That's right.
19 MR. ROSEN: He said Exhibit J.
20 THE COURT: No, but it's multipage.
21 MR. ROSEN: And -
22 THE COURT: And he's only talking about one page;
23 that's what I understand.
24 MR. ROSEN: And you ruled it was inadmissible.
25 THE COURT: Okay. But -
214
1 MR. ZLOTOFF: Your Honor, -
2 THE COURT: Go ahead.
3 MR. ZLOTOFF: My recollection is you ruled it was
4 inadmissible hearsay, but I would like the opportunity to try
5 to...
6 MR. ROSEN: Your Honor, as a matter of law there is no
7 way on God's Earth that this witness could overcome hearsay.
8 Mr. Henson, perhaps. The person who issued, the company that
9 issued a 1099, definitely. But there is no way. No one can -
10 you can not even conjure up testimony that could come out of
11 this witness' mouth which would overcome it.
12 And - and, Your Honor, the entirety of the exhibit was
13 moved in limine by us. We moved in limine to exclude the entire
14 Exhibit J, not a page, not two pages, the entirety of it. Your
15 Honor's ruling was Exhibit J, the motion in limine to exclude,
16 it was granted.
17 If Mr. Zlotoff wanted to argue about a particular
18 page, that should have a different ruling than the - the rest of
19 the exhibit, he had an opportunity on September 11th and did
20 not.
21 We have a transcript that says this exhibit is in
22 limine ruled not admissible. Not certain pages are
23 inadmissible, that the exhibit's not admissible.
24 THE COURT: Okay. Let's go back -
25 MR. ZLOTOFF: Your Honor, -
215
1 THE COURT: - a second.
2 MR. ZLOTOFF: Okay.
3 THE COURT: I'm not ruling that there may not be
4 admissible portions of multipaginated documents that I ruled on
5 in limine. I'm certainly not making that ruling now. It may be
6 that none of it is admissible, but I haven't - it was not my
7 intention necessarily to rule that every sentence in every
8 document is inadmissible for every purpose.
9 Having said that, how do you get over the hearsay
10 objection for this?
11 MR. ZLOTOFF: Rule 80324. The document is, I believe,
12 should qualify as an exception because of its trustworthiness.
13 MR. ROSEN: That requires prior notice. None was
14 given.
15 MR. ZLOTOFF: This document was given -
16 MR. ROSEN: Prior not- - Your Honor, 80324 -
17 THE COURT: Mr. - Mr. Rosen, I need to tell you both,
18 you can't just shout out this stuff to me.
19 You've made your statement. I respond. If I want to
20 hear from you, I'll say, "Mr. Rosen."
21 MR. ROSEN: Thank you.
22 THE COURT: Do you have reason to believe that these
23 are incorrect, Mr. Rosen?
24 MR. ROSEN: I have no idea. I have reason to believe
25 that they are incomplete.
216
1 THE COURT: That that - that's not a complete 1099?
2 MR. ROSEN: I have no idea.
3 THE COURT: Okay.
4 MR. ROSEN: This is a man who has destroyed his
5 records.
6 THE COURT: And -
7 MR. ROSEN: And, by the way, just to respond further,
8 there is no 80324.
9 THE COURT: The 80324 that I have - well, let me see.
10 I may have to get some - I may have to get another book from
11 chambers, but...
12 MR. ZLOTOFF: Well, could be.
13 THE COURT: Do you have 80324 handy?
14 MR. ZLOTOFF: Well, yeah, but it's in a 1987 book that
15 I'm looking at, so maybe I'm not as up to date as Mr. -
16 THE COURT: All right. Go off the record a minute.
17 We'll take five minutes.
18 (Recess taken from 11:21 a.m. to 11:36 a.m.)
19 THE COURT: Thank you. Please be seated.
20 Mr. Rosen, do you have any reason to believe that this
21 is not a correct copy of the 1099 that the Hensons received?
22 MR. ROSEN: I believe -
23 THE COURT: Specifically this document.
24 MR. ROSEN: I haven't seen the document so I don't
25 know.
217
1 THE COURT: Have you not provided a copy?
2 MR. ZLOTOFF: Oh, it's in the trial book, Your Honor.
3 As I said, it's J, four pages in -
4 THE COURT: Yeah, it's -
5 MR. ROSEN: It's J?
6 THE COURT: Right. And you objected to it in your
7 motion in limine, so it must have been something that -
8 MR. ROSEN: And you - and you ruled that the entire
9 exhibit was out, now that we've checked the transcript, Judge.
10 MR. ZLOTOFF: Five pages in. I'm sorry.
11 MR. ROSEN: Your Honor, in answer to your question, I
12 have no reason to know except, here is my concern. And to the
13 extent the Rules of Evidence are discretionary, which I don't
14 believe they are, Mr. Henson - of the documents Mr. Henson
15 purposely - admitted destroying, purposely, in the face of not
16 only a discovery request but an order of this Court to - to
17 produce them, are all of the back-up data for his 1998 tax
18 return.
19 In his July 13, 2000 2004 examination Mr. Henson was
20 questioned concerning the back-up, which would include the
21 original records of how much he received from these companies
22 for his 1998 tax return. He testified that he, quote:
23 Suspected that because of his litigation he decided that
24 hassling with the IRS was less trouble, and threw them away.
25 That is Exhibit 27- - our Trial Exhibit 279 at page
218
1 343.
2 These documents, these very documents that back up to
3 his 1998 tax return were ordered produced by these Court - by
4 this Court. We have - we had a document request, two of them,
5 in October of '99 and May of 2000 for, quote, 1998 tax return,
6 including all attachments, W-2s and 1099s, and worksheets used
7 in preparing them.
8 He never complied. He destroyed them, by his own
9 admission. And that deprives me of the opportunity to answer
10 your question as to whether or not these are accurate, because
11 the only way to know whether they're accurate is to compare the
12 document with Mr. Henson's underlying records, which would be
13 checks and bills, et cetera of - of his payments by these
14 companies. And I don't have them because he threw them in the
15 fireplace, Judge.
16 MR. ZLOTOFF: Your Honor, it's not true. I mean if
17 you look at the first page of Exhibit J, in - on November 22nd,
18 1999 they were given copies of these documents.
19 MR. ROSEN: When - excuse me. I'm not talking about -
20 THE COURT: Wait. Mr. Rosen, please. Let him finish.
21 He let you finish, -
22 MR. ROSEN: Sure.
23 THE COURT: - now let him finish -
24 MR. ROSEN: I thought he was done. I thought he was
25 done, Your Honor.
219
1 THE COURT: Yeah. He said he's had copies of them,
2 Mr. Zlotoff.
3 Let's go back. The -
4 MR. ROSEN: But, Your Honor, that's wrong.
5 THE COURT: But wait a minute. Be quiet, please, Mr.
6 Rosen.
7 The - the 1099 is a business record, but there isn't
8 any foundation for it. And if you had a witness - you don't
9 need to provide every check he ever got, it seems to me. You
10 need to have somebody from Cubic Industries - Enterprises or
11 MediaGate come in and testify that this is a business record and
12 they indeed issued this 1099 to Mr. Henson. You don't have that
13 person here, and so the document can't be admitted without that
14 person here.
15 If - if - frankly if you can obtain such a witness,
16 then I would consider it. But at this point it's excluded.
17 MR. ZLOTOFF: All right, Your Honor.
18 BY MR. ZLOTOFF:
19 Q. Ms. Lucas, can you describe the house that you - you reside
20 in on College Avenue in Palo Alto?
21 A. It was - it's about 64 years old. It is about a thousand
22 square feet. It's a half-size corner lot. It's stucco
23 construction, single-family dwelling. I - I don't know what
24 kind of further description is required.
25 Q. Is it up to code in all respects?
220
1 THE COURT: Is it what?
2 THE WITNESS: No.
3 THE COURT: I didn't hear you.
4 BY MR. ZLOTOFF:
5 Q. Is it up to code in all respects?
6 MR. ROSEN: Objection. That calls for a legal
7 conclusion, doesn't it?
8 THE COURT: Sustained.
9 BY MR. ZLOTOFF:
10 Q. Are there anything that you are aware of that's wrong with
11 the house?
12 A. Yes.
13 Q. Can you name the things that are wrong with the house?
14 MR. ROSEN: Your Honor, may I - may I interpose an
15 objection to this line on relevance? What is the relevance of
16 this whole line to the issue of a motion to dismiss under 1307?
17 This may very well be relevant to a motion on sale of
18 the house or appraisal value, but what does it have to do with
19 today's case?
20 THE COURT: Well, we're talking about confirmation of
21 the plan.
22 MR. ROSEN: Well, how - how does this have anything to
23 do with confirmation?
24 THE COURT: I don't know. I don't know if it does
25 yet.
221
1 MR. ZLOTOFF: Well, -
2 THE COURT: But I don't want you to exclude the issue
3 - the other issue that we're trying.
4 MR. ROSEN: I apologize. We are trying two issues,
5 and I - for the life of me, I can't see how this is relevant to
6 either of the two.
7 It may very well be relevant to the issue of the - of
8 the motion by the debtor to sell - for an order allowing the
9 sale of the house and its appraised value, or whatever. But it
10 has nothing to do with the two issues that we're trying.
11 MR. ZLOTOFF: Well, my - my feeling of it is that it
12 was relevant because Mr. Rosen was painting a picture of the
13 debtor as someone who had the means, the wherewithal to satisfy
14 any judgment of the RTC. And I'm trying to portray his
15 circumstance, and part of the circumstance would be the house
16 that he lived in. I'm trying to show that - or trying to
17 describe whether it was a small house or a mansion, essentially.
18 THE COURT: Yeah, the objection's overruled. She can
19 testify about the house.
20 THE WITNESS: So the question is what's wrong with it?
21 BY MR. ZLOTOFF:
22 Q. Well, any - are there any major defects to the house that
23 you know of, of your own knowledge?
24 MR. ROSEN: Is the question directed as of today?
25 MR. ZLOTOFF: No. As of - I'm sorry -
222
1 MR. ROSEN: Or as of 1998?
2 MR. ZLOTOFF: As of 1998, early 1998.
3 MR. ROSEN: February of '98?
4 MR. ZLOTOFF: Yes.
5 MR. ROSEN: Thank you.
6 THE WITNESS: There was - there is a back room and a
7 renovation of the garage that was not - there is no permit that
8 I have been able to find.
9 And the - all of the agents and appraisers with whom I
10 have talked have told me that there is -
11 MR. ROSEN: Objection, move to strike what they have
12 told her.
13 THE COURT: Sustained.
14 BY MR. ZLOTOFF:
15 Q. Can you -
16 MR. ROSEN: I also move to strike the statement about
17 she hasn't been able to find a permit. That's an issue of law
18 as to whether a permit is even required.
19 THE COURT: Overruled. She said that she hasn't been
20 able to find a permit. It doesn't -
21 MR. ROSEN: Well, -
22 THE COURT: - mean that a permit is required or isn't
23 required.
24 MR. ROSEN: Well, then it's irrelevant, isn't - Your
25 Honor. There's nothing in this record as to whether a permit is
223
1 or is not required, then the statement she hasn't been able to
2 find a permit is a total non sequitur. It has no relevance to
3 the - to this case.
4 BY MR. ZLOTOFF:
5 Q. Do -
6 MR. ZLOTOFF: Your Honor, I would say that it's
7 probably common knowledge that if - if you have to build a
8 structure on a lot in the city, that you're going to need a
9 permit. But I can ask her, if you want.
10 THE COURT: I'll - the objection's overruled.
11 MR. ZLOTOFF: All right.
12 BY MR. ZLOTOFF:
13 Q. Can you describe the household goods and the interior of the
14 house?
15 MR. ROSEN: As of - Your Honor, again may I ask -
16 BY MR. ZLOTOFF:
17 Q. As of 1998.
18 MR. ROSEN: As of February of '98?
19 MR. ZLOTOFF: Right.
20 THE COURT: Okay. Let's make the clear that I haven't
21 ruled on the effect- - on the date for valuation of the house
22 for this plan under these circumstances. So I haven't ruled
23 that it's on the date of the petition. I haven't ruled it would
24 be the date of confirmation. I have not ruled on that issue.
25 MR. ZLOTOFF: I understand. We've stipulated to
224
1 value, so it's - that's not - I'm not going to there - to that
2 issue at all.
3 THE COURT: Yes, you may answer.
4 THE WITNESS: There was used furniture, furniture that
5 we had constructed ourselves. There was - there was a mixture
6 of belongings, belonging to our daughter, belonging to me
7 personally, belonging to Mr. Henson. And some things like some
8 of the furniture that we jointly furnished - jointly paid for,
9 such as the bed, -
10 BY MR. ZLOTOFF:
11 Q. Of the furniture that was purchased, how - how old or how
12 long prior to 1998 had it been purchased?
13 A. We purchased the bed in different components. We purchased
14 the mattress and box spring in '96 or '97, early '97. All of
15 the other items were purchased secondhand, before we moved into
16 that house or they were constructed by us second - by giving -
17 by kits before we moved in.
18 I don't remember any item being purchased after we
19 moved into that house except the mattress and box spring.
20 Q. Can you give - as of that date, in 1998, can you give an
21 estimate of value of household goods owned by yourself and your
22 husband? And this would be, let's say, at a garage-sale type
23 value.
24 MR. ROSEN: Objection.
25 THE COURT: Basis?
225
1 MR. ROSEN: Relevance, garage sale, number one.
2 Number two, witness incompetent to provide any
3 testimony as to her view of the value of property of personlty
4 as of 1998.
5 And, finally, if Your Honor is going to allow this,
6 the witness has already testified that the contents of the house
7 include property which are four different characters: Her
8 personal property - her separate property, Mr. Henson's separate
9 property, their joint property, and her daughter's property.
10 So the answer is - assuming - if Your Honor is going
11 to overrule my - my first two grounds for objection, I would ask
12 that the question be rephrased to specify what property it is,
13 what personal property it is that counsel is eliciting an
14 opinion on as to value.
15 MR. ZLOTOFF: All right. Let me just modify the
16 question then slightly.
17 BY MR. ZLOTOFF:
18 Q. I'm referring now to property owned either by Mr. Henson or
19 jointly by you and Mr. Henson.
20 MR. ROSEN: Objection. No foundation to know what Mr.
21 Henson owns, even in the house.
22 And I repeat my other two objections: Garage sale is
23 not a standard nor is this witness shown to have any basis to be
24 able to estimate what the value of property is.
25 MR. ZLOTOFF: Your Honor, she's an owner. And she's
226
1 competent obviously to know what's hers versus what's her
2 husband's. No, I don't think it needs any special expertise to
3 know what the garage-sale value of furniture is.
4 MR. ROSEN: Your Honor, counsel misunderstands my
5 objection.
6 THE COURT: I understand. His objection is that the
7 garage-sale value is not a value for any legal purpose.
8 Now you may be able to argue that that's the value
9 that should be used, but that's not the standard under any legal
10 test.
11 MR. ZLOTOFF: I would argue that it is, though, Your
12 Honor. I mean that's -
13 THE COURT: So that's the value you're interested in
14 obtaining?
15 MR. ZLOTOFF: Yes. I mean that is -
16 THE COURT: The objection - the other objection -
17 MR. ZLOTOFF: - for bankruptcy purposes.
18 THE COURT: The other objections are overruled.
19 THE WITNESS: I would estimate that his belongings and
20 the belongings that we held jointly might have fetched 500, most
21 of that being for the bed.
22 MR. ROSEN: I didn't hear the answer. Your Honor, may
23 I have the court reporter read back the answer, please?
24 THE COURT: Sure.
25 THE REPORTER: Do you want me to go back?
227
1 THE COURT: Yes, please. Just her last answer.
2 MR. ROSEN: I don't need the question. I just need
3 the answer.
4 THE COURT: Well, you can do the question, too. It
5 will probably be easier.
6 (Pause in the proceedings.)
7 MR. ROSEN: Your Honor, in view of this technology
8 would it be easier to just ask the witness to repeat it?
9 Meaning no disrespect to the court reporter. Would it be
10 quicker?
11 (Comments out of range of microphone pick-up.)
12 (Record playing.)
13 THE COURT: It's a little further, LaKeska.
14 (Record playing.)
15 THE COURT: Turn the sound up, somebody.
16 (Record playing.)
17 THE COURT: This is where it's going to go.)
18 (Record playing.)
19 THE COURT: Turn it up.
20 (Record played: "THE WITNESS: I would estimate that his
21 belongings and the belongings that we held jointly might have
22 fetched 500, most of that being for the bed.")
23 THE COURT: That's fine, LaKeska. That's it.
24 MR. ROSEN: I still didn't get it, 500 most except for
25 the bed?
228
1 MS. KOBRIN: Most of that before the bed.
2 THE COURT: It would fetch $500, most of that would be
3 for the bed.
4 MR. ROSEN: Oh, I - okay. Five hundred -
5 (Comments off the record.)
6 THE COURT: No, it's fine. He's - that's all we need.
7 Thank you very much.
8 MR. ROSEN: Your Honor, may I ask? I have a problem
9 in the sense that I do have a certain difficulty with hearing -
10 THE COURT: Yeah, we're not on the record. I'll let
11 you say it on the record.
12 MR. ROSEN: Is - okay. I have a problem, and as Your
13 Honor may have observed, in terms of hearing in my right ear.
14 If - if we can ask the witness to just keep her voice up, that
15 would alleviate, you know, the need to - for me to ask for
16 question or answer read back?
17 THE COURT: Yeah, to the extent that you can talk a
18 little louder that would be fine. Thank you.
19 BY MR. ZLOTOFF:
20 Q. Ms. Lucas, were you aware of any books owned by Your Honor
21 in or about 1998, located in the residence?
22 A. Yes.
23 Q. And can you - can you give an opinion of value as to the
24 books?
25 MR. ROSEN: Objection. Not only is this improper, not
229
1 only is there no basis for asking this witness what her
2 valuation is of the books, but the worst part of this is, this
3 is an attempt to impeach the sworn schedule signed by Mr. Henson
4 and filed with this Court.
5 He has listed his books specifically on the schedule,
6 which is - which is Debtor's Exhibit A, and he has placed a
7 value on these books. And now counsel is going to elicit from
8 this witness to a different number to contradict a sworn
9 statement in - in his bankruptcy schedule? I just don't get it,
10 Judge. I'm sorry.
11 MR. ZLOTOFF: Your Honor, the - one of the tests with
12 regard to dismissal is whether there has been proper disclosure
13 on the schedules. We went down this road before and the easy
14 way, I thought, was to have her look at the schedules and say
15 was accurate, it wasn't accurate.
16 Mr. Rosen decided we shouldn't go down the road, and
17 so I had her close up her book, and now we're doing it the hard
18 way. I mean I'm happy to go back and do it the easy way, but
19 then I'm going to run into a road block there, too. So it seems
20 to me that this would be an appropriate line of questioning -
21 not my - not by my desire, but by necessity I think.
22 MR. ROSEN: Your Honor, counsel misunderstands my
23 position. Let me make it clear. I have a sworn statement filed
24 in this court. It is part of Exhibit A. It is titled,
25 "Schedule B, Personal Property." It is filed out in the
230
1 debtor's own hand. It is signed by the debtor. It lists his
2 personal property and it lists the value under the last column,
3 "Current Market Value of Debtor's Property," not garage-sale
4 value, current market value. That's the what the form calls
5 for.
6 The debtor has a specific listing of his books. That
7 is estoppel. There is no way that this Court could find, based
8 on the preferred testimony of this witness, that the value of
9 these books are any more or less than what the debtor said.
10 This is estoppel. You cannot contradict this document
11 with the testimony of the woman who comes in now, 'Let me tell
12 you, my husband was wrong. The books are only worth 50 bucks or
13 a hundred dollars.'
14 THE COURT: Overruled. The objection's overruled.
15 MR. ROSEN: May I have a basis for the ruling of
16 impeaching the schedule?
17 MR. ZLOTOFF: Well, you know if Mr. Rosen wants the
18 schedules to come in for the truth of the matter asserted,
19 that's fine.
20 THE COURT: That's - he's not - you don't need to
21 respond to that.
22 If there's - there's an independent person who's
23 presenting a value as to an item in the schedules. And the
24 objection's overruled.
25 MR. ROSEN: Can we have a basis for her valuation
231
1 opinion? Does she have - does she have a list of the books?
2 Has she any expertise in valuing books?
3 THE COURT: Do you want to establish -
4 BY MR. ZLOTOFF:
5 Q. Do you -
6 THE COURT: - any further basis?
7 MR. ZLOTOFF: All right.
8 BY MR. ZLOTOFF:
9 Q. Do you - what's your occupation, Ms. Lucas?
10 A. I'm an archivist.
11 Q. Do you have occasion to be around books?
12 A. Yes.
13 Q. Used books?
14 A. Yes.
15 Q. Do you on occasion buy used books?
16 A. Not currently.
17 Q. Do you have occasion to know values of used books?
18 MR. ROSEN: All used books?
19 THE COURT: Wait. Mr. Rosen, you cannot -
20 MR. ROSEN: Objection.
21 THE COURT: You can cross. You cannot interrupt like
22 that.
23 MR. ROSEN: Objection. All used - is it -
24 THE COURT: He's not finished.
25 MR. ROSEN: Yes, he did. He -
232
1 THE COURT: I don't know whether he has or not. Let's
2 see.
3 Are you finished? Do you have something else to ask?
4 MR. ZLOTOFF: I thought there was a question on the
5 table, but -
6 THE COURT: No. Do you have a -
7 BY MR. ZLOTOFF:
8 Q. Have you - have you had the occasion to go to book sales?
9 MR. ROSEN: Objection.
10 THE COURT: Overruled.
11 THE WITNESS: Yes, I have.
12 BY MR. ZLOTOFF:
13 Q. Do you have an opinion of - do you think you are competent
14 to give an opinion of the value of Mr. Henson's books?
15 MR. ROSEN: Objection. Expert testimony, the witness
16 is not designated as an expert. Under the Federal Rules -
17 THE COURT: She's not testifying as an expert, but the
18 objection is sustained if this is offered as expert testimony.
19 She's just testifying as his wife.
20 I don't have any problem with letting her testify as
21 to the value of the books, Mr. Zlotoff.
22 MR. ZLOTOFF: All right. I think there's a question
23 on the table then. I would - could -
24 THE COURT: I don't remember the question.
25 MR. ZLOTOFF: I don't either, but -
233
1 THE COURT: What's the - what's the question?
2 BY MR. ZLOTOFF:
3 Q. Are there any antique books or rather books, books of, you
4 know, obvious value beyond just used-book type value?
5 MR. ROSEN: Objection. How could a witness possibly
6 testifying without even identifying the books whether there are
7 any books of value. With all due respect, I would value Mr. -
8 Mr. Zlotoff's copy of the Federal Rules of 1987. I don't have a
9 copy from that year.
10 THE COURT: Overruled.
11 THE WITNESS: I did not see anything that I would
12 consider to be rare enough to fetch a large price.
13 MR. ROSEN: Objection, move to strike.
14 THE COURT: Overruled.
15 MR. ROSEN: That's expert testimony as to whether in
16 her opinion anything would be rare or would fetch a, quote,
17 large price. That is clear expert testimony.
18 THE COURT: Overruled.
19 BY MR. ZLOTOFF:
20 Q. Can you - can you give us a value then of Mr. Henson's books
21 at or about 1998?
22 A. I suppose 4- or 500 under the best conditions.
23 Q. Can you describe for us as of 1998 Mr. Henson's wearing
24 apparel?
25 A. He had a couple of old suits. One that he had since before
234
1 we were married -
2 MR. ROSEN: Objection, move to -
3 THE COURT: Overruled.
4 MR. ROSEN: May I have a foun- -
5 THE COURT: He had a couple of old suits, one which he
6 had before they were married, overruled.
7 THE WITNESS: He had slacks, a couple of blazers. His
8 clothing was except for the suits secondhand. I went shopping
9 with him at Goodwill and other places, and he brought back
10 clothing from places when I wasn't with him that still had the
11 tags on them.
12 MR. ROSEN: Objection. That's hearsay.
13 THE COURT: Did you see the tags?
14 THE WITNESS: Yes.
15 THE COURT: Overruled.
16 THE WITNESS: I cut them off -
17 MR. ROSEN: Tags are self-authenticating documents,
18 Your Honor?
19 THE COURT: Pardon me? What did you say?
20 THE WITNESS: I cut the tags off myself.
21 THE COURT: Overruled.
22 BY MR. ZLOTOFF:
23 Q. Ms. Lucas, can you tell us about an insurance policy through
24 Continental General Insurance Company?
25 A. Yes.
235
1 Q. Did you have such an insurance policy?
2 A. Yes.
3 Q. Did your husband?
4 MR. ROSEN: Objection.
5 BY MR. ZLOTOFF:
6 Q. Did -
7 THE COURT: A foundational problem.
8 BY MR. ZLOTOFF:
9 Q. When did you buy your insurance?
10 A. It was a joint policy. And, as I remember, we bought it in
11 about 1983, '84.
12 MR. ROSEN: Your Honor, I move to strike. Best
13 evidence rule. It's a joint policy. Let's see this joint
14 policy.
15 THE COURT: Overruled.
16 BY MR. ZLOTOFF:
17 Q. When you say it was a joint policy, what do you mean by
18 joint policy?
19 A. It covers both of us.
20 MR. ROSEN: A s- -
21 BY MR. ZLOTOFF:
22 Q. What -
23 MR. ROSEN: I'm sorry, Your Honor.
24 BY MR. ZLOTOFF:
25 Q. Does that mean there - were there two premiums or one
236
1 premium?
2 A. One premium.
3 Q. Was - what was the purpose of this insurance?
4 MR. ROSEN: Objection.
5 MR. ZLOTOFF: What's the reas- -
6 THE COURT: Basis, what's the basis of the objection?
7 MR. ROSEN: What is the relevance of the purpose of
8 insurance, of a life insurance policy; and to the extent counsel
9 is asking this witness what Mr. Henson's purpose was, again we
10 are in hearsay, mind-reading, and a blatant attempt to avoid the
11 obvious, which is Mr. Henson's a fugitive.
12 THE COURT: The objection's overruled except insofar
13 as it asks what Mr. Henson's purpose was. And there's no
14 foundation for her answering what his purpose is or was.
15 MR. ZLOTOFF: Right.
16 BY MR. ZLOTOFF:
17 Q. What was your purpose in buying the insurance?
18 A. It was to insure our cryonic suspension at our deaths.
19 THE COURT: I'm sorry. What did you just say?
20 THE WITNESS: It was to insure our cryonic suspension
21 at our deaths. It - we regarded it as burial insurance because
22 it takes care of our complete remains.
23 BY MR. ZLOTOFF:
24 Q. And how - how would the insurance accomplish that, to your
25 knowledge?
237
1 A. We gave it to the Alcor Life Extension Foundation. We
2 assigned it completely to them. It was a gift -
3 MR. ROSEN: Objection, move to strike the "we." If
4 she - if Your Honor sees some relevance in what she did, fine.
5 To the extent she's testifying about what Mr. Henson does or
6 would he, quote, gave, it is improper.
7 MR. ZLOTOFF: It's not, Your Honor. It's not hearsay.
8 It's an act. It's a verbal act. He gave -
9 MR. ROSEN: No, -
10 MR. ZLOTOFF: It's just like a part of a contract.
11 THE COURT: Both did it.
12 MR. ZLOTOFF: They both did it.
13 THE COURT: It's something that they both did.
14 MR. ZLOTOFF: Right.
15 MR. ROSEN: And - and your -
16 THE COURT: Wait a second. Wait a second.
17 Can you just say what you did again?
18 THE WITNESS: We gifted the policy to the Life
19 Extension Foundation.
20 THE COURT: And is that - was that done in writing?
21 THE WITNESS: Yes.
22 MR. ROSEN: Objection, best evidence rule.
23 Can we see the writing, Your Honor?
24 THE COURT: Go ahead, Mr. Zlotoff.
25 MR. ZLOTOFF: Well, Your Honor, I'm sorry. What was -
238
1 what did you say, Your Honor?
2 THE COURT: He objected because you haven't yet
3 introduced the document underlying the gifting.
4 MR. ZLOTOFF: All right. Let me come back to that,
5 Your Honor, if I may.
6 MR. ROSEN: Do you need some help with the number?
7 MR. ZLOTOFF: No, I know the - I know the number. I'm
8 just see whether it's...
9 BY MR. ZLOTOFF:
10 Q. I think my question was how was the insurance going to
11 accomplish what you wanted with regard to taking care of your
12 remains?
13 How was it going to work, in other words, that it
14 would see your purpose to its end?
15 MR. ROSEN: Objection. The best evidence is the
16 document signed with Alcor.
17 THE COURT: Overruled.
18 THE WITNESS: It's a common way that people fund
19 cryonic suspension, that the payments are made into a life
20 insurance policy. And on the patient's death, the money goes to
21 the Alcor Life Extension Foundation to pay for suspension and
22 care until such hypothetical time as the person could be revived
23 using future medical science.
24 MR. ROSEN: Move to strike it. This is all hearsay.
25 There are no documents. And the witness' testimony as to this
239
1 is, quote, a common thing to do, no basis for this.
2 THE COURT: Overruled.
3 BY MR. ZLOTOFF:
4 Q. Was it your understanding that there was a cash value built
5 up in the life insurance?
6 MR. ROSEN: Objection. What she understands or not is
7 irrelevant.
8 MR. ZLOTOFF: All right.
9 BY MR. ZLOTOFF:
10 Q. Could you turn to 191, Exhibit 191, please.
11 THE COURT: 191, they're in the black books. It would
12 be Volume III.
13 BY MR. ZLOTOFF:
14 Q. Do you have it?
15 A. Yes.
16 Q. Can you identify the documents there?
17 A. I see a letter dated September 22nd, 2000 to Mr. Hogan from
18 a corporate services analyst of Continental General.
19 Q. All right. If you turn in - actually just two pages down, I
20 think you can start seeing a - the series of computer printouts?
21 A. Yes.
22 Q. And can you see on the far right?
23 A. Yes.
24 Q. A column entitled, "Cash Surrender Value"?
25 A. Yes.
240
1 Q. And if you flip through the various reports, I think they go
2 chronologically from earliest to latest the more you flip.
3 Do you see that?
4 A. Yes.
5 Q. And can you - can you get to the last of that computer
6 printout?
7 A. Yes.
8 Q. And do you find a cash value there?
9 THE COURT: I'm sorry. What page are you on, Mr.
10 Zlotoff?
11 How do I find that? From -
12 MR. ZLOTOFF: It would be -
13 THE COURT: - the top? I mean going from the back or
14 from the front?
15 MR. ZLOTOFF: Yeah. It would be, it looks like two
16 pages in from a document called "Life Insurance Policy."
17 THE COURT: But I don't know where that is.
18 MR. ZLOTOFF: Oh, okay.
19 THE COURT: Do you want to take my book and find it?
20 MR. ZLOTOFF: All right.
21 THE WITNESS: Are you referring to the date 2000 or to
22 an earlier date?
23 MR. ZLOTOFF: Right before that.
24 THE COURT: Just give it to him.
25 THE WITNESS: '98?
241
1 MR. ZLOTOFF: '99. Year ending, October 22nd, 1999.
2 THE WITNESS: '99.
3 BY MR. ZLOTOFF:
4 Q. You see the document I'm talking about?
5 A. Yes. October 22nd, 1999, the Summary for Year Ending?
6 Q. Right.
7 And as of that date what is the cash surrender value?
8 MR. ROSEN: Objection. What is the point of having a
9 witness read a document that's in evidence?
10 THE COURT: Has this document been admitted?
11 MR. ZLOTOFF: Yes.
12 THE COURT: Right. So then it's admitted for all
13 purposes, including the cash surrender value.
14 MR. ZLOTOFF: Right.
15 BY MR. ZLOTOFF:
16 Q. Am I correct in reading it as 7,802.14 as of the last date
17 entered?
18 A. I see that, yes.
19 Q. And that - does that accord with your recollection as the
20 approximately cash value as of that time?
21 MR. ROSEN: Objection. This is not recollection. The
22 witness - it's a reading test. Why doesn't counsel ask the
23 witness the question before he showed her the document if there
24 was some reason to establish her independent knowledge of it?
25 THE COURT: As of yesterday none of the exhibits were
242
1 admitted, so it's not in evidence.
2 MR. ROSEN: I moved them in evidence and there was no
3 objection. So can Your Honor say admitted?
4 THE COURT: No. There was - there was a reservation
5 of objections -
6 MR. ROSEN: I'm sorry. Let me address that. During -
7 THE COURT: I - I don't want you to address it now. I
8 want to do the - this, but there's nothing in evidence at this
9 point.
10 MR. ROSEN: All right. Well, let me -
11 THE COURT: Sit down, please.
12 MR. ROSEN: Can I address the Court for a moment?
13 Sure, I'll sit down.
14 On Friday Mr. Zlotoff identified certain documents as
15 to which he had relevance objections. On Friday after court Mr.
16 Zlotoff and I agreed that he would go through and see if there
17 were any other ones that he didn't identify on Friday as to
18 which he has relevance objections.
19 Mr. Zlotoff then faxed to us a list of those documents
20 - of those exhibits to which he had relevance objections. And
21 Your Honor will recall, this is the only objection, relevance.
22 And he was good enough to fax that to our hotel on Sunday
23 afternoon.
24 We have that list. It is part of a memorandum I'd
25 like to hand up. This document is not on it.
243
1 I moved for the introduction of all the documents I
2 offered on Friday.
3 THE COURT: Well, why didn't you do that as
4 preliminary matter rather than in the middle of his examination
5 of a witness?
6 MR. ROSEN: Because you just raised it, Judge. I
7 thought that you were receiving documents subject -
8 THE COURT: But how would I know what you had done on
9 Sunday -
10 MR. ROSEN: No, I'm sorry. I thought - not that you
11 knew what happened on Sunday. I thought you had received the
12 documents subject to any relevance objections he has.
13 If I may hand up now, Your Honor. This is a memo -
14 the memo you asked for on ready of relevance in, quote,
15 connecting the dots. And you'll see Exhibit 2 - excuse me -
16 page 2 at the bottom is a list of the exhibits to which Mr. -
17 Mr. Zlotoff has objected on grounds of relevance.
18 I should take a moment to point out what this is.
19 You had asked on Friday that we connect the dots, so
20 to speak, in terms of what exhibits go with which. We've done
21 that. We've not only done it but we've demonstrated the
22 relevance or at least argued relevance.
23 And to make it easier for Your Honor, we have attached
24 to the back of it what is essentially a table of contents. May
25 I hand it up?
244
1 THE COURT: Have you filed this?
2 MR. ROSEN: No. We have - we're going to file it if
3 you want us to in the Clerk's Office, but what we did is this.
4 Just so Your Honor understands it, to make it easier for you.
5 This is like one would have a table of authorities. For every
6 exhibit we identify the page of the brief, of the memorandum on
7 which we - we have addressed that exhibit and described it. And
8 therefore Your Honor will know by going through this the
9 relevance of each exhibits.
10 We obviously have text within the memorandum
11 explaining the - the reason for the exhibits.
12 The only exhibits that are - we've left off here, and
13 you'll see some notations on the list at the back, "No reason to
14 address here," either - and that's either because the document
15 is obvious, what the relevance is. Like, for example, the
16 bankruptcy petition. Or because there is no objection to it and
17 there's no reason to be - and there's no reason to be addressing
18 it. Or that it's already been addressed by Your Honor last
19 Friday.
20 So these are Mr. - if you look at page 2, the
21 footnote, these are Mr. Zlotoff's relevance objections.
22 We move for the introduction of all of the exhibits we
23 tendered last Friday, including those as to which he's objected.
24 He's provided no grounds other relevance. We made it clear on
25 the record, you did, that the only ground - or he did that the
245
1 only ground was relevance. And we've - and we've shown the
2 relevance.
3 More importantly to the issue at hand, this is not a
4 document, 1- - Exhibit 190 even - that he even objected to.
5 THE COURT: Is - Mr. Zlotoff, it's hard to put all
6 this together because there were arguments about specific
7 documents that I excluded.
8 And I don't know how good the minutes are about the
9 exclusion, Tanya. Were doc- - were they written, did she write
10 down which documents were excluded for a particular reason?
11 (Creditor's counsel confer off record.)
12 THE CLERK: I don't have the minutes from Friday.
13 THE COURT: I can't hear you.
14 THE COURT: I don't have the minutes from Friday in
15 here.
16 THE COURT: Okay. So we'll have to deal that once my
17 Deputy has the minutes.
18 In terms of the exhibits we didn't discuss, and I -
19 it's going to be hard for me to make a ruling now until I have
20 the minutes, are you objecting only, Mr. Zlotoff, on relevance
21 ground to the exhibits in footnote 1 of a document - on page 2
22 of a document called "RTC's Memorandum Re Relevance" that has
23 not yet been filed but will be filed during the lunch hour?
24 MR. ROSEN: Yes.
25 MR. ZLOTOFF: Let me just make sure I understand. Mr.
246
1 Rosen is representing that what is reproduced here on the back
2 of his brief is what I -
3 THE COURT: You're referring to -
4 MR. ZLOTOFF: - what I faxed -
5 THE COURT: - to the chart at the back of the brief?
6 MR. ROSEN: No.
7 MR. ZLOTOFF: - is - is what I faxed to him?
8 MR. ROSEN: If I may - may I just show, Mr. Zlotoff,
9 Your Honor?
10 THE COURT: Yeah.
11 Let's go off the record, and you show him. Go off the
12 record, please.
13 (Off the record from 12:17 p.m. to 12:18 p.m.)
14 MR. ZLOTOFF: His footnote accurately represents those
15 items that I faxed to him expressing my objection regarding
16 relevancy. Yeah, that's it. Those are the only objections to
17 anything.
18 THE COURT: Okay. But there were certain exhibits -
19 MR. ZLOTOFF: Yes.
20 THE COURT: - that we discussed yesterday that I did
21 not let in subject to various problems.
22 MR. ZLOTOFF: Right.
23 MS. KOBRIN: Your Honor, there were two.
24 THE COURT: Okay.
25 MS. KOBRIN: I'll tell you which ones they were.
247
1 THE COURT: Mr. Zlotoff, do you have notes of that as
2 well?
3 MR. ZLOTOFF: Yes, I do.
4 MS. KOBRIN: It's Number 87.
5 MR. ZLOTOFF: That's correct.
6 MS. KOBRIN: And -
7 MR. ZLOTOFF: 110 was -
8 MS. KOBRIN: - 185.
9 MR. ZLOTOFF: 110 was withdrawn.
10 MS. KOBRIN: A few were withdrawn, but the two that
11 you excluded were 187 and 185.
12 THE COURT: Okay. And when you say were withdrawn,
13 was the withdrawal subsequent to the withdrawal in the book?
14 MS. KOBRIN: Yes, but we withdrew at the hearing -
15 THE COURT: Okay. Can you tell me - give me a list of
16 the ones that were withdrawn?
17 MS. KOBRIN: Yes. 110, 212, 214, 244, and I believe
18 that's it.
19 THE COURT: Okay.
20 MR. ZLOTOFF: That's what my notes show.
21 THE COURT: Okay. So subject to my checking the Court
22 minutes, double-checking them if there's - my understanding is
23 that we are not admitting at this time all of the exhibits
24 listed on Mr. Zlotoff's list, which now appears as footnote 2 to
25 the RTC's brief, which they will file today at lunch time,
248
1 "Memorandum Re Relevance." We're not admitting 110, 212, 214,
2 or 244. That's 110, 212, 214, and 244. We're not admitting 87
3 and 185. And the RTC has moved in all of its - all of the other
4 exhibits in its binders.
5 Do you have any objection to any of the other exhibits
6 in the RTC binders?
7 MR. ZLOTOFF: No.
8 THE COURT: They are all now hereby admitted.
9 (All Creditor's Exhibits submitted to the Court for
10 admission during day 1 of the trial except for 87, 110, 185,
11 212, 214, and 244 were received in evidence.)
12 MR. ROSEN: Thank you.
13 THE COURT: Now that includes 193.
14 MR. ROSEN: I believe it's 191 which you're on now,
15 Your Honor. Is that - are you referring to the policy? There
16 is 193.
17 THE COURT: Oh, I see. That's confusing. I looked at
18 194 in front of it, and moved back.
19 MR. ROSEN: Right.
20 THE COURT: So - okay. So that - that includes 191,
21 because it's not on this likes -
22 MR. ROSEN: Correct.
23 THE COURT: - and it wasn't otherwise named. So 191
24 is in evidence.
25 And it's true that you don't need to ask her about
249
1 things in - if the information's in evidence except if you need
2 some kind of clarification.
3 MR. ZLOTOFF: All right. Just one more question then
4 on it.
5 BY MR. ZLOTOFF:
6 Q. The last - the next-to-the-last page of the exhibit, if
7 you'd look at that, please.
8 Do you have that - can you identify that document?
9 A. It says, "Request for transfer of ownership or designation
10 of contingent owner."
11 Q. And what did that - what was the purpose of that document?
12 MR. ROSEN: Objection. She didn't even sign the
13 document. How could she possibly testify as to the purpose of a
14 document that her name does not appear on and she didn't sign?
15 BY MR. ZLOTOFF:
16 Q. Was this document a part of all of the other documents that
17 you and your husband looked at and reviewed?
18 MR. ROSEN: Objection. What difference does it make
19 if her husband showed it to her? I just - I apologize, Your
20 Honor. It's very frustrating. I'm used to dealing with the
21 Federal Rules of Evidence.
22 THE COURT: Well, how do you deal with the objections?
23 At the time of the transfer -
24 MR. ZLOTOFF: All right.
25 THE COURT: - did you agree that her husband could
250
1 review - that your husband could sign this?
2 THE WITNESS: Yes.
3 THE COURT: And was he, as far as you were concerned,
4 signing for both of you?
5 THE WITNESS: We - as I remember, we each had to sign
6 a separate document, but they were the same document.
7 MR. ROSEN: Your Honor, if I may, this underscores my
8 objection. This - this exhibit, this insurance policy is not a
9 joint insurance policy. This is not a joint insurance policy
10 that it was - that covered both husband and wife. On the face
11 of it, the owner of this policy is Mr. Henson. And the
12 transfer, which the wit- - the page, the next-to-the-last page
13 of the exhibit, which Mr. Zlotoff just directed our collective
14 attention to, is a designation, transfer of ownership, of a
15 policy which is owned by Howard Keith Henson.
16 And throughout this, Your Honor, if you go back to the
17 beginning of this, this is a policy on the life of Howard Keith
18 Henson. Go to page 2 of the document, after the covering letter
19 for Mr. Hogan, you'll see two inches down on the left-hand side,
20 "Insured: Keith Henson."
21 THE WITNESS: Excuse me -
22 MR. ROSEN: And this witness is - you're allowing this
23 witness to testify presumably on the basis of a statement that
24 this is a jointly-owned policy. This witness' interest in the
25 policy is not as a joint owner. It is as an additional,
251
1 secondary insured, meaning if Mr. Henson dies, then the policy
2 would cover her. It's only - it's one policy. And the only
3 owner and the only, quote, primary insured, as you'll see from
4 the third page and every page after it, is Mr. Henson.
5 And yet this witness sits here and tells us in
6 response to her counsel's questions this is a joint policy
7 which, quote, we gifted. Well, we - there ain't no "we" here.
8 There's a Mr. Henson who gifted.
9 THE COURT: That's fine. You can ask her those
10 questions on cross.
11 BY MR. ZLOTOFF:
12 Q. All right. Ms. Lucas, can you describe what kind of - if
13 any, artwork Mr. Henson owned? This would be as of 1998.
14 MR. ROSEN: Objection -
15 THE COURT: February of 1998?
16 MR. ZLOTOFF: Yes.
17 MR. ROSEN: Judge, -
18 THE COURT: Can you do that every time, please?
19 MR. ZLOTOFF: I'm sorry, Your Honor. Yes, I'll try.
20 MR. ROSEN: Objection, no foundation. And let me be
21 specific. This witness has testified that Mr. Henson was a very
22 private person who maintained his own possessions separately
23 from his wife.
24 She's testified that Mr. Henson keep - kept his
25 personal possessions in a 1,000-pound safe, a 1,000-pound safe
252
1 at or about the house that she did not have access to.
2 He secreted his papers, his -
3 THE COURT: Please get to a microphone.
4 MR. ROSEN: I'm sorry.
5 He secreted his papers, his assets, and this witness -
6 in the 1,000-pound safe on this - at their home. And this
7 witness has testified she had no access. There was only one
8 key; Mr. Henson had the key.
9 MR. ZLOTOFF: Your Honor, he's testifying. Can't he
10 bring this up at cross-examination? I don't know if any of this
11 is true, what he's saying -
12 THE COURT: I understand, but, Mr. Zlotoff, he's
13 established enough, if that's an offer of proof, that that's
14 what she testified, merely to make me say to you: You ought to
15 prove that she's had access to his artwork.
16 MR. ZLOTOFF: All right.
17 THE COURT: It's a foundational -
18 MR. ZLOTOFF: Okay.
19 THE COURT: - objection that went on and on.
20 BY MR. ZLOTOFF:
21 Q. Did you have access to - first of all, do - do you know of
22 this locker that Mr. Rosen is talking about?
23 MR. ROSEN: Objection. I didn't talk about any
24 locker. I talked about a 1,000-pound safe.
25 BY MR. ZLOTOFF:
253
1 Q. Okay. The 1,000-pound safe, are you familiar with that?
2 A. There was a fire safe kept in the backyard that weighed 600
3 pounds, as they told me when they carried it away. It
4 contained -
5 Q. Wait a minute. As of February '98 do you know what it
6 contained?
7 A. Yes. Yes.
8 Q. And how do you know what it contained?
9 A. Well, I don't know that I - I did not know what it contained
10 except I was - as I was granted access to it during certain
11 periods when Mr. Henson wished to keep his matters private
12 because we were being called to 2004 examination.
13 In February '98 I did have access to the safe and I
14 knew what was in it.
15 Q. Okay. And what was in it as of February '98?
16 A. There were mostly memorabilia, photographs. There were some
17 private documents, such as the deed to the house. I certainly
18 couldn't detail it down to the last item, but it was all papers
19 and photographs and memorabilia.
20 Q. All right. Any artwork?
21 A. No.
22 Q. Now this brings up a point because Mr. Rosen keeps
23 interjecting that - he seems to leave the impression that you
24 never knew anything about Mr. Henson's affairs, that you and he
25 always - forever always kept your affairs separate. Is that
254
1 true or did it begin at a certain point in time?
2 A. What he refers to in terms of not knowing where he worked
3 and his not knowing where I worked was something that we did as
4 it became clear that our employers were being harassed and
5 prosecuted -
6 MR. ROSEN: Objection, move to strike this.
7 THE COURT: Overruled.
8 THE WITNESS: We did not begin this practice until it
9 was clear that we needed to protect our employers, our fellow
10 employees, our family and friends.
11 BY MR. ZLOTOFF:
12 Q. Can you give a date to that, when you started that practice?
13 A. It was certainly after the summer of 1998, the 2004
14 examinations that began after we had been picketed privately and
15 at work -
16 MR. ROSEN: Objection, I move to strike this.
17 THE COURT: Overruled.
18 MR. ROSEN: It's not responsive and it's hearsay.
19 THE COURT: Overruled - it is not responsive for that
20 - it is. All you've asked for her is a date, and that - so that
21 is stricken. And she needs to tell you the date if she knows
22 the date.
23 THE WITNESS: I don't remember a specific date.
24 THE COURT: Or an approximate date.
25 THE WITNESS: It was after the summer of '98, possibly
255
1 '99 or even 2000.
2 THE COURT: Pardon me?
3 THE WITNESS: It might even have been as late as 2000
4 that we instituted this practice, I don't remember.
5 BY MR. ZLOTOFF:
6 Q. And so up until the summer of '98 you had full access to Mr.
7 Henson's papers, effects, and possessions?
8 A. I had full access to possessions. There may have been some
9 papers that he reserved from me.
10 Q. With regard to artwork, was there any in the house?
11 A. Yes.
12 Q. Was there any in the house that Mr. Henson owned?
13 A. Yes.
14 THE COURT: Are we talking about the same house, Mr.
15 Zlotoff?
16 MR. ZLOTOFF: The house on 302 College Ave. And this
17 would have been in February of '98 -
18 THE COURT: You said was there any in the house and
19 then you said was there any in the house that Mr. Henson owned.
20 So I was a little confused.
21 MR. ZLOTOFF: Right.
22 THE COURT: She said yes to both. I now want to know
23 if there's one house or two we're talking about.
24 MR. ZLOTOFF: Right.
25 BY MR. ZLOTOFF:
256
1 Q. What artwork was there in this house in February of '98 at
2 302 College Avenue that you both lived in?
3 A. There were prints. There were computer printouts. There
4 were drawings. There were engravings. As I said, these
5 belonged to all three of us, but not jointly.
6 Q. Who lived in the house as of February '98?
7 A. My husband and I and our daughter.
8 Q. Did you each own separate pieces of artwork?
9 A. Yes.
10 Q. If you refer to Exhibit 182.
11 A. That's from Allstate?
12 Q. Yes.
13 Do you recognize the - the pieces identified here on
14 this document?
15 A. Yes, I do.
16 Q. And do you know to whom those were owned?
17 A. Yes. They were belonging to my daughter - our daughter.
18 Q. Now is there a reason why they - these pieces appear on your
19 insurance policy?
20 MR. ROSEN: Objection, no foundation. No foundation
21 that she even knew that they appeared on her insurance policy
22 until her counsel told her.
23 BY MR. ZLOTOFF:
24 Q. Ms. - okay. Let me ask some more questions.
25 Ms. Lucas, can you identify this document?
257
1 A. Yes. It's a schedule from an insurance policy, a home
2 owner's policy.
3 Q. And are you personally - were you personally familiar with
4 this policy as of February of '98?
5 A. Yes. I arranged for it.
6 Q. You personally arranged for it?
7 A. Yes.
8 Q. Were you instrumental in including these pieces in the
9 insurance coverage?
10 A. Yes.
11 Q. And why did you do that?
12 A. Because they were valuable and I wanted to make certain that
13 they would be covered.
14 Q. Now there is no other artwork included, although I think you
15 did say that Mr. Henson owned a print or prints?
16 A. Yes.
17 Q. And why did you not choose to include Mr. Henson's prints in
18 this coverage?
19 A. Because they cost perhaps 20 to $25 each and he just had a
20 few -
21 MR. ROSEN: Objection, move to strike.
22 BY MR. ZLOTOFF:
23 Q. How -
24 MR. ROSEN: There's no foundation for this witness
25 testifying as to what Mr. Henson's prints cost.
258
1 BY MR. ZLOTOFF:
2 Q. Ms. -
3 THE COURT: Go ahead. You want to establish a
4 foundation.
5 MR. ZLOTOFF: Let me - let me try it, Your Honor.
6 BY MR. ZLOTOFF:
7 Q. Ms. Lucas, do you have personal knowledge as to the costs of
8 Mr. Henson's prints?
9 A. I went with him to purchase them.
10 Q. And you were there when the purchase was consummated?
11 A. Yes.
12 Q. Thank you.
13 THE COURT: Tanya.
14 And they were - and they were worth about 20 or $25
15 each; is that what you said?
16 THE WITNESS: Yes.
17 MR. ROSEN: Can we identify what they are, Judge?
18 THE COURT: You will have that on cross.
19 BY MR. ZLOTOFF:
20 Q. Why don't we also look at Exhibit 160. Are you there?
21 A. Yes.
22 Q. Okay.
23 THE COURT: Let me just announce that we're going to
24 break at 12:45 and reconvene at 1:45.
25 MR. ZLOTOFF: All right, Your Honor. I have a two
259
1 o'clock prehearing in Judge Grube's court.
2 THE COURT: Have you arranged for the priority
3 setting?
4 MR. ZLOTOFF: I didn't do that yet, no.
5 THE COURT: Well, you'll do it during lunch.
6 MR. ZLOTOFF: Right.
7 THE CLERK: Millie's taking care of that -
8 MR. ZLOTOFF: Oh, Millie's taking care of - well, she
9 was here, so she heard.
10 THE COURT: She won't know, she won't remember
11 necessarily.
12 MR. ZLOTOFF: All right. Okay. I'll take care of
13 that.
14 THE COURT: You'll be here and they just can call you
15 when they're ready for you.
16 MR. ZLOTOFF: Right. It's usually not a problem.
17 BY MR. ZLOTOFF:
18 Q. All right. Then again we're looking at Exhibit 160. Now
19 can you identify what this - this document purports to
20 represent?
21 A. Yes. I asked for Purple Gallery to give us an appraisal of
22 the art for insurance purposes, and this is the certification
23 that they returned to me.
24 MR. ROSEN: Your Honor, I'm confused. Is this the
25 valuation of the art that is covered by the last exhibit,
260
1 Exhibit 182, the insurance policy?
2 MR. ZLOTOFF: That - that was going to be my next
3 question.
4 MR. ROSEN: Oh, thank you.
5 BY MR. ZLOTOFF:
6 Q. Is it the same art?
7 A. No.
8 Q. It is not the same art, okay.
9 What happened to this - these pieces here that are
10 identified in Exhibit 160?
11 MR. ROSEN: Piece.
12 THE WITNESS: They were traded -
13 BY MR. ZLOTOFF:
14 Q. Piece.
15 A. Well, it's a tryptic, but it is one single piece. It was
16 traded in to the Gallery for other pieces of my daughter's
17 selection.
18 Q. And did she select those that are - that we previously
19 looked at on the Allstate endorsement?
20 A. Yes.
21 MR. ROSEN: That's Exhibit 182, just for the record,
22 that counsel's referring to?
23 BY MR. ZLOTOFF:
24 Q. Is that true, 182 is the -
25 A. That was the -
261
1 MR. ROSEN: Insurance endorsement.
2 THE WITNESS: - Allstate schedule.
3 BY MR. ZLOTOFF:
4 Q. And the ones -
5 MR. ROSEN: Thank you.
6 BY MR. ZLOTOFF:
7 Q. - listed on 182 were the ones that she traded for?
8 A. Yes.
9 Q. Okay. And then if you would look at Exhibit 234.
10 THE COURT: That's in another book.
11 THE WITNESS: Oh.
12 BY MR. ZLOTOFF:
13 Q. Are you there?
14 A. Yes.
15 Q. Can you identify what this document purports to represent?
16 A. This appears to be a document, it says, "Removal of Works,"
17 and so it's basically our receipt received from Purple Gallery.
18 And it is these - I believe it's the same set of artwork that we
19 just saw in whatever that was -
20 Q. 182?
21 A. - 182, yes.
22 Q. Okay. So these were -
23 A. Along with a videotape of how another artwork was produced.
24 Q. Okay. So these again identify the - the pieces that were
25 traded for?
262
1 A. Yes.
2 Q. Okay. If you would please look at Exhibit 221.
3 Are you there?
4 A. Yes.
5 Q. Can you identify that check at all?
6 A. It was a check that I saw -
7 MR. ROSEN: I believe the question is can she identify
8 it.
9 THE COURT: And it's a yes or no question.
10 THE WITNESS: Yes, I can.
11 BY MR. ZLOTOFF:
12 Q. Can you explain what it - what it was for?
13 MR. ROSEN: Objection. This is a check signed by the
14 absent debtor.
15 BY MR. ZLOTOFF:
16 Q. At -
17 MR. ROSEN: I'm not finish. I'm sorry.
18 MR. ZLOTOFF: Okay.
19 MR. ROSEN: I had something in my throat.
20 The absent debtor perhaps might be able to testify as
21 to what his purpose was in writing these checks. Might be able
22 to. This witness cannot.
23 And, gosh, I just hope that if a foundation is sought,
24 that this witness doesn't say, 'Gee, I was there and I heard him
25 say what the purpose was.'
263
1 THE COURT: That's argument.
2 MR. ROSEN: Yeah, I know. Well, -
3 THE COURT: And it's sarcastic and it's inappropriate.
4 MR. ROSEN: It's what?
5 THE COURT: Inappropriate.
6 MR. ROSEN: Yeah, okay. Well, I object.
7 THE COURT: Not, "Yeah, okay." "Yes, Your Honor, I
8 won't do it again."
9 MR. ROSEN: Yes, Your Honor, it's - I - I have heard
10 Your Honor and I purge my objection.
11 MR. ZLOTOFF: I'm sorry. Where - is there an
12 objection on the table -
13 THE COURT: He objects to this on the grounds that she
14 couldn't testify as to what it was for, -
15 MR. ZLOTOFF: Okay.
16 THE COURT: - because it's not signed by her.
17 MR. ZLOTOFF: Right.
18 BY MR. ZLOTOFF:
19 Q. Is - can you make out the name of the - of the payee on the
20 check?
21 A. I believe it says, "WarpNet, Inc."
22 THE COURT: Can you spell it for me?
23 THE WITNESS: It's W-a-r-p, as in Paul, N-, as in
24 Nancy, e-t. And it looks like the "N" was capitalized, Inc.
25 BY MR. ZLOTOFF:
264
1 Q. And can you make out the date of the check?
2 A. 10-7-97.
3 Q. And the amount of the check, can you read it?
4 A. Seventy-five hundred dollars.
5 Q. Does the name WarpNet, Inc. - of your own knowledge, not
6 from anything that Mr. Henson told you, of your own knowledge,
7 does it - as of that date, did it mean anything to you?
8 A. Yes.
9 Q. And of your own knowledge, what did you know of WarpNet,
10 Inc.?
11 A. It was a company with which my husband had worked in - not
12 on a consultant pas- - capacity, maybe an advisory capacity.
13 MR. ROSEN: Objection, no foun- - foundation. Your
14 Honor, counsel asks a questions of the witness, and I believe a
15 proper fashion, "of your own knowledge." This witness ignores
16 it and proceeds to testify as to what's not of her own
17 knowledge.
18 How could she possibly be tes- - be - have her own
19 knowledge? And maybe the problem, Your Honor, is one of
20 linguistics. Maybe Your Honor needs to explain to this witness
21 what the words "of your own personal knowledge" mean as opposed
22 to what her husband told her.
23 MR. ZLOTOFF: Well, Your Honor, she has testified that
24 up into the summer of 1998 she was conversant with Mr. Henson's
25 affairs. And I mean I could ask her some more questions about
265
1 whether she ever saw 1099s or receipts or invoices from WarpNet,
2 Inc. or other documents that would evidence his employment
3 there. If you want, I'll be happy to do that.
4 MR. ROSEN: Your Honor, counsel misunderstands my
5 objection. The problem is not -
6 THE COURT: The -
7 MR. ROSEN: - that she's going - he's going to ask
8 this witness what she knows from her husband about WarpNet, Inc.
9 The problem is that she doesn't - doesn't understand what "of
10 your personal knowledge" means. And by the answers to her
11 questions, obviously she assumes, she is misinterpreting
12 counsel's question "of your own personal knowledge" as including
13 'it's my personal knowledge because my husband told me.' That's
14 what this testimony is about.
15 And I would ask Your Honor to instruct the witness as
16 to what "personal knowledge" means. And it doesn't mean what
17 somebody else told her, whether it's her husband or anyone else.
18 THE COURT: That's the problem, Mr. Zlotoff. Unless
19 you can establish a basis upon which she knows, you know, for
20 example, on a previous one, she was there when they issued the
21 policy. But unless this is something other than -
22 MR. ZLOTOFF: Okay.
23 THE COURT: - what somebody has told her, -
24 MR. ZLOTOFF: All right.
25 THE COURT: - it's not admissible.
266
1 MR. ZLOTOFF: Okay. We'll -
2 THE COURT: If it's something - she has independent
3 knowledge other than what somebody told her, -
4 MR. ZLOTOFF: Okay.
5 THE COURT: - that might be admissible.
6 MR. ZLOTOFF: I'll ask.
7 BY MR. ZLOTOFF:
8 Q. Do you have independent knowledge other than what somebody
9 told you of what WarpNet, Inc. was as of October 7th, 1997?
10 A. I saw paperwork from them.
11 Q. Okay. Well, what kind of paperwork did you see?
12 MR. ROSEN: Objection. Now that calls for hearsay.
13 THE COURT: No. Telling you what kind of paper
14 doesn't - would you please refrain from throwing down your pen
15 every time you don't like something?
16 MR. ROSEN: I don't have a pen, Your Honor. I'm not
17 holding one -
18 THE COURT: You're throwing something down. Your
19 glasses perhaps?
20 MR. ROSEN: No, Your Honor. My glasses are on the
21 table here. Here are my hands in plain sight. I'm not throwing
22 anything down.
23 THE COURT: Good.
24 MR. ROSEN: I leaned back in my chair is what I did.
25 T