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                  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             THE COURT:  Go ahead.  You can ask her the last

 

                                                           267

 

 1   question you asked her.  I think it was what papers she saw.

 

 2             MR. ZLOTOFF:  Right.

 

 3   BY MR. ZLOTOFF:

 

 4   Q.  What papers did you see?

 

 5   A.  I saw - the only thing I remember right now is that I saw a

 

 6   check come back from WarpNet -

 

 7   Q.  Oh, okay.

 

 8   A.  - in this same amount.

 

 9   Q.  Okay. 

 

10             MR. ROSEN:  I object, move to strike it.  That is

 

11   hearsay.

 

12             MR. ZLOTOFF:  It's not -

 

13             MR. ROSEN:  As to what the amount of the check was or

 

14   if there was a check.

 

15             MR. ZLOTOFF:  But, wait, -

 

16             THE COURT:  If the check isn't here -

 

17             MR. ZLOTOFF:  - it's not hearsay.

 

18             THE COURT:  - and she's testifying she saw a check

 

19   from WarpNet come to her house, that's not hearsay.  Overruled -

 

20             MR. ROSEN:  Should just testified to the amount of the

 

21   check.

 

22             THE COURT:  I understand.  The objection's -

 

23             MR. ROSEN:  That's what I'm arguing is hearsay, Your

 

24   Honor.

 

25             THE COURT:  That she - that they received - she saw a

 

                                                           268

 

 1   check in the amount of $7500?

 

 2             MR. ROSEN:  Yes, that's the objection.  Where's the

 

 3   check?

 

 4             THE COURT:  But the check isn't being sought to be

 

 5   introduced for the truth, she's just recalling her recollection

 

 6   that she saw a check.  So there's no - there's no check here

 

 7   that she's talking -

 

 8             MR. ROSEN:  Your Honor, are you accepting as for the

 

 9   truth the testimony that - that there was a check from WarpNet

 

10   back to Mr. Henson in the amount of $7500?  Is that being

 

11   accepted for the truth that such a document existed?

 

12             MR. ZLOTOFF:  No, it's -

 

13             MR. ROSEN:  Because that's my problem.

 

14             MR. ZLOTOFF:  It's not being offered for the truth.

 

15   It's being offered, I would say, to show - I would call it a

 

16   verbal act.  I would - I would say that what it shows is that

 

17   this check was really in the nature of a loan, and the money

 

18   that she got back was the repayment of a loan.

 

19             MR. ROSEN:  And how do we - how are we going to prove

 

20   that other than you saying it, counsel?

 

21             THE COURT:  I don't understand that at all.  I agree

 

22   with that.  I agree that that's all inadmissible with that -

 

23   unless you have some evidence for it.  This -

 

24             MR. ZLOTOFF:  Well, Your Honor, this is, with all due

 

25   respect, this is her bank account.  Are we here - are we going

 

                                                           269

 

 1   to say that she is ignorant of when there is a check coming into

 

 2   her bank account of $7500?  I mean that is -

 

 3             THE COURT:  This is a check going out.

 

 4             MR. ZLOTOFF:  No, no, no.  She's being barred from

 

 5   testifying that she got a check from WarpNet, Inc. in the amount

 

 6   of $7500 that was deposited in her bank account.  I mean I -

 

 7   maybe we need to flesh that out more, but it seems to me that's

 

 8   what Mr. Rosen is trying to exclude, is the fact of her receipt

 

 9   of money.  And it's - I mean to say that she didn't know that

 

10   she got money is beyond -

 

11             THE COURT:  And why don't you have -

 

12             MR. ZLOTOFF:  - the pale -

 

13             THE COURT:  - the bank account showing a $7500

 

14   deposit?  If she got $7500 why doesn't - why don't you have the

 

15   check?

 

16             MR. ZLOTOFF:  I - I don't know why I don't have the

 

17   check, Your Honor.  I don't make a thousand dollars an hour on

 

18   this case.  I - there are lots of things that if - if I were

 

19   paid the way a case like this should be paid, then I'm sure I

 

20   would - I would have more here.  I'd have more witnesses.  I'd

 

21   have more evidence, but that's, you know, - that's just the way

 

22   - the way -

 

23             MR. ROSEN:  With all due respect, -

 

24             THE COURT:  Be quiet, please.

 

25             The objection's sustained.

 

                                                           270

 

 1             MR. ZLOTOFF:  And that was the objection to the

 

 2   question of her testifying that she got a check back of $7500?

 

 3   That's what's being objected to?

 

 4             THE COURT:  Without the check.

 

 5             MR. ZLOTOFF:  Without the check.

 

 6             THE COURT:  When that would be reasonably within your

 

 7   control.

 

 8   BY MR. ZLOTOFF:

 

 9   Q.  Was - to your knowledge, did Mr. Henson - is it possible

 

10   that Mr. Henson bought stocks on his own without -

 

11             MR. ROSEN:  Objection.

 

12   BY MR. ZLOTOFF:

 

13   Q.  - your knowledge -

 

14             THE COURT:  Let him finish.  Do not interrupt him or

 

15   her, please.

 

16             Finish your question, and you - because I produce a

 

17   terrible record.  You overlap his question, and the record is

 

18   terrible every time.

 

19             MR. ROSEN:  With all due respect, Your Honor, after

 

20   the first three words it was obvious that anything that came

 

21   after it was going to be objectionable.

 

22             THE COURT:  I happen to agree with you -

 

23             MR. ROSEN:  Any question which begins with, "is it

 

24   possible," to -

 

25             THE COURT:  I agree.

 

                                                           271

 

 1             MR. ROSEN:  I don't mean to be rude to Mr. Zlotoff,

 

 2   but he could save us the time for - that it takes to complete

 

 3   the question because we know the answer to the objection once we

 

 4   hear the opening three words.

 

 5             THE COURT:  I agree, but I will instruct you never to

 

 6   interrupt his question, even if you think you're right.

 

 7   BY MR. ZLOTOFF:

 

 8   Q.  Did - did you and Mr. Henson jointly purchase any stocks?

 

 9   This would be - or did you - I'm sorry.  Let me ask that

 

10   differently.

 

11             Did you and Mr. Henson jointly own shares of stock as

 

12   of February of 1998?

 

13   A.  No.

 

14   Q.  Are you aware of any stock purchases made through your bank

 

15   account, this Wells Fargo Bank account, during - any time during

 

16   1997 or up through February 1998?

 

17   A.  No.

 

18             THE COURT:  That - that takes us to a little after

 

19   1:45.  So we'll meet at 2:20 - I'm sorry, 2:50 in - and I would

 

20   ask you to quickly leave the courtroom so - I'm sorry.  We're

 

21   now 12:50.  1:50, yes.  So my staff can have its lunch.

 

22        (Luncheon recess taken from 12:50 p.m. to 2:13 p.m.)

 

23             THE COURT:  Please remain seated.  Thank you.

 

24             Are you finished with Judge Grube, Mr. Zlotoff?

 

25             MR. ZLOTOFF:  Yes, I am.

 

                                                           272

 

 1             THE COURT:  All right.  You may proceed.

 

 2             MR. ROSEN:  Your Honor, before Ms. Lucas resumes her

 

 3   testimony I was hopeful that Your Honor could clarify something

 

 4   for us.  We have a little bit of disagreement as to what Your

 

 5   Honor said.

 

 6             With respect to the exhibits we offered before the

 

 7   lunch break, did Your Honor say that you were admitting only

 

 8   those that Mr. Zlotoff did not object to?

 

 9             THE COURT:  Yes.

 

10             MR. ROSEN:  Is it Your Honor's intention to rule on

 

11   those before we rest?  I would like to know what exhibits are in

 

12   or not in before we - before it comes back to us and we rest our

 

13   case, and is that Your Honor's intention?

 

14             THE COURT:  Unless you're not going to rest until

 

15   after the briefing.  I'd hate to have that happen.

 

16             MR. ROSEN:  Well, -

 

17             THE COURT:  You're going to just - I assume you're

 

18   each going to take a few days and file a brief that will tell me

 

19   the basis for the relevance objection.  Mr. - Mr. Zlotoff is

 

20   going to give you his response to the brief you filed and then

 

21   you're going to reply to it if you want to reply.  If you give

 

22   up a reply, not that you're necessarily entitled to a reply, but

 

23   if there's an agreement that Mr. Zlotoff's paper is the last

 

24   paper, then I would rule after I'd had a chance to review it.

 

25   But I can't rule on relevance objections until I've seen what

 

                                                           273

 

 1   Mr. Zlotoff has to say.

 

 2             MR. ROSEN:  Well, my problem is that that would mean

 

 3   that I would be resting probably tomorrow or the next day

 

 4   without knowing what the rulings are, unless Mr. Zlotoff will

 

 5   get his brief in tomorrow morning and we can - and we can

 

 6   address it and Your Honor can rule.

 

 7             But I don't really feel comfortable, and I've never, I

 

 8   must tell you, -

 

 9             THE COURT:  Why can't -

 

10             MR. ROSEN:  - I've never rested, you know, without

 

11   knowing what exhibits are received into evidence and which ones

 

12   are rejected.

 

13             THE COURT:  Well, you're going to have an opportunity

 

14   for rebuttal after he's finished his case.  The timing, you and

 

15   Mr. Zlotoff should work out, in the first instance.  If you

 

16   can't agree I'll have to resolve any outstanding dispute.  But

 

17   you know where we are.  And there's no way that I can rule

 

18   without knowing Mr. Zlotoff's objection.

 

19             MR. ROSEN:  All right.  Well, since it's obvious we're

 

20   not going to finish today, my - my request then is for Mr.

 

21   Zlotoff to present to you whatever he wants by way of in support

 

22   of his relevance objections when we resume tomorrow.  And if he

 

23   does that, I will waive any right to file a reply brief.  And,

 

24   instead, if there's anything I feel impelled to reply to in his

 

25   papers, I will do so orally.

 

                                                           274

 

 1             But the alternative of resting without knowing what

 

 2   the - what exhibits have been received into evidence is

 

 3   something which is anathema.

 

 4             THE COURT:  But I'm not going to be able to review Mr.

 

 5   Zlotoff's objections and your oral response on the bench.

 

 6   There's - there are, what, five volumes, 286 exhibits.  There

 

 7   are about 50 or 60 at issue.

 

 8             MR. ROSEN:  Yeah.  I think they basically fall into

 

 9   categories.  For example, Mr. -

 

10             THE COURT:  I don't want to argue the exhibits.

 

11             MR. ROSEN:  Okay.

 

12             THE COURT:  I don't think it's - I don't think that

 

13   that procedure is going to work.

 

14             MR. ROSEN:  All right.  Well, I'd just like the record

 

15   to reflect, you know, my desire that I - I think it's

 

16   appropriate that I know the rulings before I rest.

 

17             The other thing I wanted to raise is yes- - is on

 

18   Friday, Your Honor, I handed you a copy of Judge Whyte's order

 

19   of September 26th and asked for your permission that either you

 

20   or we file it under seal in accordance with Judge Whyte's

 

21   expressed desires in that order.

 

22             I need a Court order in order to do that, and I don't

 

23   know if Your Honor is - will file it or whether you want us to

 

24   file it, but my understanding is that in order for us to file it

 

25   with the Bankruptcy Court's office, we need Your Honor to issue

 

                                                           275

 

 1   an order allowing us to do so.

 

 2             THE COURT:  Do you have any objection to Judge Whyte's

 

 3   decision being filed under seal?

 

 4             MR. ROSEN:  Can we assign that Exhibit - just so it'll

 

 5   need a number - 288, Your Honor?

 

 6             THE COURT:  That's fine.  But we have - we have

 

 7   special procedures as far as filing a sealed document.  And the

 

 8   best - and you have my permission to file it under seal.  The

 

 9   best person to work with is Valeria Barbour in the Clerk's

 

10   Office, who will help you with the mechanics of filing it under

 

11   seal.

 

12             MR. ROSEN:  Okay.  Your Honor, on the same subject we

 

13   have and we've marked and I've given Mr. Zlotoff a copy, we've

 

14   marked as Exhibit 287.  This is a posting respecting that

 

15   September 26th order by Judge Whyte, which I will also ask that

 

16   be filed under seal, because it violates Judge Whyte's order.

 

17   So that to file this without - I'm handing up two copies - to

 

18   file it without a seal would, in effect, compound the - the

 

19   violation of it.

 

20             And my I have permission to file that as Exhibit 287

 

21   under seal, Your Honor?

 

22             THE COURT:  Have you seen it?

 

23             MR. ZLOTOFF:  I've seen it.  It really - to my mind

 

24   it's objectionable -

 

25             THE COURT:  Well, I'm not admitting it.

 

                                                           276

 

 1             MR. ZLOTOFF:  I -

 

 2             THE COURT:  It's just being marked as an exhibit for

 

 3   identification under seal.

 

 4             MR. ROSEN:  I'll -

 

 5             THE COURT:  But I need a copy of it for my use at -

 

 6             MR. ROSEN:  I've handed two copies to your Clerk.

 

 7             And, Your Honor, I do move the admission of both 287

 

 8   and 288.

 

 9             THE COURT:  Okay.  But we're not going to do this in

 

10   the middle of Ms. Lucas' testimony.

 

11             MR. ROSEN:  Okay.  Your Honor, may I - may I just -

 

12             THE REPORTER:  Excuse me.  Mr. Zlotoff's binder is on

 

13   top of the bar.

 

14             THE COURT:  Oh, do you see, you've got the binder on

 

15   top of the bar, and the bar on the microphone has a function.

 

16   See, look under the microphone.

 

17             MR. ZLOTOFF:  Oh, okay.

 

18             THE COURT:  You're okay, just keep papers off of that

 

19   bottom of the microphone.

 

20             MR. ROSEN:  Your Honor, the last item of housekeeping,

 

21   if you will, before Ms. Lucas resumes her testimony, is I made

 

22   reference prior to the lunch break to a case on the best

 

23   evidence rule.  And I just want the record to reflect that

 

24   these -

 

25             THE COURT:  Do you have copies for Mr. Zlotoff and me?

 

                                                           277

 

 1             MR. ROSEN:  I think we gave it -

 

 2             MR. ZLOTOFF:  That was on the Lucas- -

 

 3             MR. ROSEN:  No, I don't have copies.  I'm sorry.  We

 

 4   gave him the cite on Friday.

 

 5             The case is entitled, Seiler, S-e-i-l-e-r, v.

 

 6   Lucasfilm, one word, L-u-c-a-s-f-i-l-m, LTD.  And it is a

 

 7   decision of the Ninth Circuit Court of Appeals of 1987.  And the

 

 8   only part I would bring to Your Honor's attention on the

 

 9   subject, it contains an extensive discussion of the history of

 

10   Federal Rules of Evidence 1001 to what then was 1008, now is

 

11   1007.

 

12             And the one part I would bring to Your Honor's

 

13   attention is as follows, quote:  -

 

14             THE COURT:  What page?

 

15             MR. ROSEN:  This is on page 1319 of the Official

 

16   Reporter, of the F.2d Reporter, and the - the couple of lines I

 

17   would urge Your Honor to, is that as follows:  "When the

 

18   contents of a writing are at issue, oral testimony is that to

 

19   the terms of the writing is subject to a greater risk of error

 

20   than oral testimony as to events or other situations.  The human

 

21   memory is not often capable of reciting the precise terms of a

 

22   writing.  And when the terms are in dispute, only the writing

 

23   itself or a true copy provides reliable evidence."

 

24             That is only one part of the discussion, but this is

 

25   the Ninth Circuit's principal articulation following the

 

                                                           278

 

 1   adoption of Federal Rules 1001 to 1000- - what was then 1008.

 

 2   And it goes on for quite a while, including the Advisory

 

 3   Committee note, and the analysis of what is the history of the

 

 4   rule and what the purpose of the rule is.

 

 5             And - and that's my last item, Your Honor.

 

 6             THE COURT:  Mr. Zlotoff.

 

 7             MR. ZLOTOFF:  Yes, Your Honor.  I - yeah, why don't we

 

 8   call Ms. Lucas again.

 

 9             THE COURT:  Ms. Lucas, if you would please retake the

 

10   stand.  I remind you that you're under oath.

 

11   BY MR. ZLOTOFF:

 

12   Q.  Ms. Lucas, are you aware of any patents held by - of your

 

13   own personal knowledge now, are you aware of - and by this I

 

14   mean would you have, because you looked at the patents and you

 

15   know of your own knowledge what the patents are about, would you

 

16   happen to know as of February 1998 whether Mr. Henson had any

 

17   patents?

 

18             MR. ROSEN:  Several objections, Your Honor.  One is

 

19   the best evidence rule.  The best evidence of whether Mr. Henson

 

20   has a patent is a certified copy - is a certified copy from the

 

21   United States Patent and Trademark Office, number one.

 

22             And, number two, the def- - the question itself

 

23   elicits hearsay, "would you... know" from looking at a document.

 

24   Under that standard this witness would be competent to testify

 

25   as to anything.  She could go out and read the Rubaiyat this

 

                                                           279

 

 1   afternoon and come back and testify from her, quote, personal

 

 2   knowledge, close quote, as to what it says.

 

 3             MR. ZLOTOFF:  Let me withdraw the question.

 

 4   BY MR. ZLOTOFF:

 

 5   Q.  Are you aware of any moneys deposited into your Wells Fargo

 

 6   Bank during 1987 [sic] to February 1998 from any source with

 

 7   respect to royalties or moneys from patents?

 

 8             MR. ROSEN:  Objection, no foundation that she would be

 

 9   aware of what a check is for, if the check is made out to Mr.

 

10   Henson, number one.

 

11             Number two, again best evidence rule.  The best

 

12   evidence is the check or some document which shows it is for

 

13   royalties on a patent.

 

14             MR. ZLOTOFF:  Your Honor, I'm not asking about any

 

15   patent or document at this point.  I'm simply asking whether she

 

16   is aware of any moneys.  She could say no.  If she's not aware,

 

17   that's fine.  If she's -

 

18             MR. ROSEN:  Well, he's asking about a check, and

 

19   that's a document.

 

20             THE COURT:  Yeah.  She can testify as to whether she

 

21   is aware that Mr. Henson - whether Mr. Henson received any

 

22   royalties during - what period did you say, Mr. Zlotoff?

 

23             MR. ZLOTOFF:  1997 through February '98.

 

24             THE WITNESS:  I am not aware that Mr. Henson received

 

25   any money from any patent - patents.

 

                                                           280

 

 1   BY MR. ZLOTOFF:

 

 2   Q.  What cars are there owned either by you or Mr. Henson?  This

 

 3   would be during 1997 and 1998.

 

 4   A.  At that time he had an '86 Oldsmobile stationwagon that I'm

 

 5   still driving.  I had a 1987 Ford Escort that I was - that I

 

 6   owned at that time.

 

 7   Q.  And what happened to the Escort?

 

 8             MR. ROSEN:  Objection, -

 

 9             THE WITNESS:  It died last year.

 

10             MR. ROSEN:  - what difference does it make?

 

11             THE COURT:  Wait.  Wait, wait.  Wait a second.

 

12             When there's an objection, you stop.

 

13             THE WITNESS:  Sorry.  Sorry.

 

14             THE COURT:  The question was what happened to the

 

15   Escort and the objection is what?

 

16             MR. ROSEN:  Relevance.  What difference does it make

 

17   what happened to it?  We're not alleging -

 

18             THE COURT:  Overruled.

 

19             Go ahead, you may answer.

 

20             THE WITNESS:  It died last year.

 

21   BY MR. ZLOTOFF:

 

22   Q.  Can you give us the - again based on your knowledge, the

 

23   condition of the - as best you can.  I don't expect you to

 

24   testify as a mechanic or an expert or anything, just based on

 

25   your perception, the condition of the '86 Oldsmobile in or about

 

                                                           281

 

 1   February of '98.

 

 2   A.  It had been purchased as a salvage vehicle and it needed a

 

 3   lot of work.  It was not driven very much because it was in very

 

 4   bad shape.

 

 5   Q.  Can you describe any kind of office - office equipment or

 

 6   computers that was located in the house or at February of '98?

 

 7   A.  I believe at that time there was a PC which was running an

 

 8   old operating system, Windows 3.0.  He had been lent a laptop

 

 9   which died I think during that time.

 

10             MR. ROSEN:  Objection, Your Honor.  The content of the

 

11   testimony is obviously - shows it's hearsay.

 

12             MR. ZLOTOFF:  I'm sorry.  She's testifying about what

 

13   is in the house in the way of computers or equipment.

 

14             MR. ROSEN:  No, excuse me, -

 

15             MR. ZLOTOFF:  She's testifying based on perception.

 

16             MR. ROSEN:  Your Honor, my - my -

 

17             THE COURT:  Mr. Zlotoff, let's go back a second.  Some

 

18   of this, there was a PC running on 3.0 isn't hearsay unless she

 

19   didn't know that it was 3.0, she relied on somebody to tell her

 

20   that.

 

21             Where he received this laptop may be hearsay or may

 

22   not, and you haven't established a foundation that it is or

 

23   isn't.  And it's not clear how she knows.  She could have

 

24   watched the transaction of the lending or not watched the

 

25   transaction of the lending.  So there is a foundational problem

 

                                                           282

 

 1   with some of this.  There's mostly not a foundational problem.

 

 2             MR. ZLOTOFF:  All right.  It's - I don't think it's

 

 3   really important, so we can just - we can strike that part of it

 

 4   then.  I don't - I don't care.

 

 5             THE COURT:  Okay.  The part which said he was lent a

 

 6   laptop goes out, but not that he had a laptop and that it died.

 

 7   BY MR. ZLOTOFF:

 

 8   Q.  Could you turn to Exhibit A and look at three pages in.  We

 

 9   looked at that the other day.

 

10   A.  Page 3?

 

11   Q.  On the top it will say, "Schedule B, Personal Property."

 

12   And the first entry was the Wells Fargo Bank.

 

13   A.  Oh, yes.

 

14   Q.  You see on the right-hand side there are some numbers?

 

15   A.  Yes.

 

16   Q.  Starting from the third from the bottom, can you read those

 

17   numbers?

 

18   A.  From the third from the bottom?

 

19   Q.  Right.

 

20   A.  The "Books located at debtor's residence"?

 

21   Q.  Yeah.  And then just go over to the far right column and

 

22   read the numbers.

 

23   A.  That's $500.  It's got a peculiar comma in there that looks

 

24   - makes it look like 5,000, but I -

 

25             MR. ROSEN:  I object, Your Honor.  There is no basis

 

                                                           283

 

 1   for this witness to testify as to what a document says.

 

 2             MR. ZLOTOFF:  Can I ask her some questions, Your

 

 3   Honor?

 

 4             THE COURT:  Sure.

 

 5   BY MR. ZLOTOFF:

 

 6   Q.  Can you identify the handwriting on this document?

 

 7   A.  Yes.

 

 8   Q.  And whose handwriting is it?

 

 9   A.  It's my husband's handwriting.

 

10   Q.  Are you familiar with the way that he normally writes

 

11   numbers?

 

12   A.  Yes.

 

13   Q.  Is this the normal way he writes numbers?

 

14             MR. ROSEN:  Objection, totally irrelevant.  Attempting

 

15   to impeach a court filing filed under oath.

 

16             THE COURT:  Not necessarily to impeach; overruled.

 

17   BY MR. ZLOTOFF:

 

18   Q.  Were you with him when he filled out the documents, the

 

19   schedules, the Schedule B?

 

20   A.  He came in and out of where I was working with the documents

 

21   and asked me questions.

 

22   Q.  Can you describe his state of mind at the time that he was

 

23   filling out the documents?

 

24             MR. ROSEN:  Objection, no, she can't.

 

25             MR. ZLOTOFF:  Why?  Why can't she describe a

 

                                                           284

 

 1   perception?

 

 2             THE COURT:  She can describe behavior.  She can't

 

 3   describe his state of mind.

 

 4             THE WITNESS:  He appeared to be agitated, exhausted,

 

 5   and very worried.

 

 6             MR. ROSEN:  I move to strike this, Your Honor.

 

 7             THE COURT:  You have to ask him - her - the way this

 

 8   works, gentlemen, is that you can describe behavior.  You can

 

 9   describe what he was doing with his hands, what he was doing

 

10   physically, not interpret his innerself.

 

11             MR. ZLOTOFF:  I understand, but I thought that's what

 

12   she did.

 

13   BY MR. ZLOTOFF:

 

14   Q.  Can you describe his behavior?  And, again, don't look into

 

15   his mind, just describe to us what you perceived, the physical

 

16   manifestations of what you perceived?

 

17   A.  He was moving jerkily.  He was moving hurriedly.  He tended

 

18   to thrust things in my direction and to disappear.  And he would

 

19   skip from one topic to another.  His face was drawn.  I did not

 

20   notice that he was - he did not come to bed to sleep until late,

 

21   and he got up early.

 

22   Q.  In or about February of 1998 can you state what your house

 

23   payment was?

 

24   A.  1998?

 

25   Q.  Right.

 

                                                           285

 

 1   A.  It's not a fixed mortgage, it's an adjustable, and so it

 

 2   fluctuated between 17- something and almost 1900 a month.  And I

 

 3   don't remember without looking what it was at that specific

 

 4   time.

 

 5   Q.  Why don't you look at Exhibit L.

 

 6             MR. ROSEN:  Your Honor, the document Exhibit L

 

 7   reflects what the house payment is.  It's already in evidence.

 

 8   We didn't -

 

 9             MR. ZLOTOFF:  Did we -

 

10             MR. ROSEN:  We don't have any objection to it.  Is it

 

11   necessary to have the witness reading the document to us?

 

12             MR. ZLOTOFF:  All right.  Well, let me - let me just -

 

13             THE COURT:  Have we admitted -

 

14             MR. ZLOTOFF:  I don't -

 

15             THE COURT:  - Mr. Zlotoff's exhibits?

 

16             MR. ZLOTOFF:  I don't remember.  I don't think we did,

 

17   but let's - let's go through it -

 

18             MR. ROSEN:  Well, it -

 

19             THE COURT:  Wait, wait.  Be quiet, gentlemen.

 

20             Tanya, what has been in off of Mr. Zlotoff's exhibits?

 

21             THE CLERK:  I have -

 

22             THE COURT:  I need to hear you.  I can't hear you.

 

23             THE CLERK:  I have nothing. 

 

24             J is excluded; is that correct?  O is - the objection

 

25   to it was overruled subject to certification.  And then I don't

 

                                                           286

 

 1   have any of the others in.

 

 2             THE COURT:  Okay.  Make sure the microphone is close

 

 3   to you so we have -

 

 4             MR. ROSEN:  I apologize.  What I meant to say was is

 

 5   as follows.  Exhibit L came up in the September 11th hearing on

 

 6   in limine motions.  And if recollection serves, I know that he

 

 7   had no objection to it because I think we have the same exhibit

 

 8   in ours.  So whether it has been formally received into evidence

 

 9   in this hearing I can tell you from our records of September

 

10   11th and the transcript, that we didn't have any objection to

 

11   the receipt of that document.

 

12             THE COURT:  Mr. Zlotoff, do you want to admit L?

 

13             MR. ZLOTOFF:  Yes.  May we move - I move to admit

 

14   Exhibit L.

 

15             MR. ROSEN:  No - no objection.

 

16             THE COURT:  L is admitted.

 

17        (Debtor's Exhibit L received in evidence.)

 

18             MR. ZLOTOFF:  All right.  Let me take of a couple of

 

19   other ones that I think we agreed on.

 

20             A and B I think we agreed could be admitted but not

 

21   for the truth of the matter -

 

22             MR. ROSEN:  Correct.

 

23             MR. ZLOTOFF:  - asserted.

 

24             THE COURT:  A and B admitted, but not for the truth.

 

25        (Debtor's Exhibits A and B, admitted not for the truth,

 

                                                           287

 

 1   received in evidence.)

 

 2             MR. ZLOTOFF:  And then I believe C was okay.

 

 3             MR. ROSEN:  No.

 

 4             MR. ZLOTOFF:  No?

 

 5             MR. ROSEN:  C's the same thing.  It's a proposed

 

 6   amended plan, -

 

 7             MR. ZLOTOFF:  Okay.

 

 8             MR. ROSEN:  - admitted solely for the purposes of

 

 9   showing that this is what was filed with the Court, and not -

 

10             MR. ZLOTOFF:  All right.

 

11             MR. ROSEN:  - for the truth.

 

12             MR. ZLOTOFF:  All right.  D I believe was -

 

13             THE COURT:  Wait.  Do you want it admitted for that

 

14   purpose?

 

15             MR. ZLOTOFF:  Yes, that's fine.

 

16             THE COURT:  Okay.  C is admitted showing that this was

 

17   filed, but not for the truth.

 

18        (Debtor's Exhibit C, admitted not for the truth, received

 

19   in evidence.)

 

20             MR. ZLOTOFF:  And D I believe was admitted.  I move to

 

21   admit Exhibit D.

 

22             MR. ROSEN:  No objection.

 

23             THE COURT:  D is admitted.

 

24        (Debtor's Exhibit D received in evidence.)

 

25             MR. ZLOTOFF:  I think F was - I move to admit F.

 

                                                           288

 

 1             MR. ROSEN:  No objection.

 

 2             THE COURT:  F is admitted.

 

 3        (Debtor's Exhibit F received in evidence.)

 

 4             THE CLERK:  What about E?

 

 5             THE COURT:  We don't have to go in order.  He's doing

 

 6   whatever he's doing.

 

 7             THE CLERK:  Okay.

 

 8             MR. ZLOTOFF:  E was not admitted.

 

 9             THE CLERK:  Now F is admitted.

 

10             THE COURT:  F is admitted.

 

11             THE CLERK:  Oh, thank you.

 

12             MR. ZLOTOFF:  G, just record judgment and order.

 

13             Did you have a problem with that?

 

14             MR. ROSEN:  The ruling on September 11th was as

 

15   follows -

 

16             THE COURT:  Wait a second.  You're telling me what the

 

17   ruling was?  He's asking whether G is admitted.

 

18             MR. ZLOTOFF:  This was -

 

19             MR. ROSEN:  Well, he just asked me -

 

20             MR. ZLOTOFF:  No, this was subject to -

 

21             MR. ROSEN:  - if I objected to it.

 

22             THE COURT:  Right.

 

23             MR. ROSEN:  I'm responding to you to his question.

 

24             THE COURT:  But it's either yes or no.

 

25             MR. ROSEN:  No, it's not yes or no.

 

                                                           289

 

 1             THE COURT:  It's not?

 

 2             MR. ROSEN:  No.

 

 3             THE COURT:  All right.

 

 4             MR. ROSEN:  Because what happened on September 11th,

 

 5   my recollection, and we have the transcript, is as follows:  The

 

 6   fee - the portion of the exhibit which was the fee order was

 

 7   out.  That's the one that was reversed by the Ninth Circuit.

 

 8             The portion of the exhibit which constitutes the

 

 9   District Court's judgment was in on consent, so it's not yes or

 

10   no.  It's half and half.

 

11             THE COURT:  Do you agree?

 

12             MR. ZLOTOFF:  I - yes, he's right.

 

13             THE COURT:  G admitted except for the fee award.

 

14        (Debtor's Exhibit G, excluding fee award, received in

 

15   evidence.)

 

16             MR. ROSEN:  The fee order, right.

 

17             MR. ZLOTOFF:  All right.  And then the jury

 

18   instruction, H, I believe was okay.

 

19             MR. ROSEN:  Yes, no objection.

 

20             MR. ZLOTOFF:  Okay.  I move for that admittance.

 

21             THE COURT:  G is admitted for the purpose I said.  And

 

22   H is admitted.

 

23        (Debtor's Exhibit H received in evidence.)

 

24             MR. ZLOTOFF:  I was out.  J and K were out.  M was

 

25   out, N was out.

 

                                                           290

 

 1             MR. ROSEN:  Right.

 

 2             MR. ZLOTOFF:  Now that leaves us with O, Your Honor,

 

 3   and I - you asked me to bring some verification.  What I brought

 

 4   was copies of the subpoena.  I gave - I served Mr. Rosen a copy

 

 5   of that.  And I could -

 

 6             THE COURT:  It's subpoena on the bank?

 

 7             MR. ZLOTOFF:  Yes.  But it was done by RTC.  So - oh,

 

 8   I'll lodge that with the Clerk.

 

 9             THE CLERK:  Did you say M and N were out?

 

10             THE COURT:  Let me see what he has there for the O.

 

11             MR. ZLOTOFF:  Right, M and N are out.

 

12             THE CLERK:  Okay.

 

13             THE COURT:  Go ahead, Mr. Rosen.

 

14             MR. ROSEN:  I wasn't saying anything, Judge.  I'm

 

15   sorry.

 

16             THE COURT:  Well, are you going to respond, because -

 

17   to my taking this in?

 

18             MR. ROSEN:  Yeah, I already did - I believe I objected

 

19   earlier.

 

20             THE COURT:  I understand, but now what we have is a

 

21   subpoena with Wells Fargo apparently sending to you or your

 

22   client, another lawyer of your client, a certification that

 

23   these are true copies of bank records in the custodian's

 

24   possession as described in the above-referenced legal order, and

 

25   they include the documents which are the bank statements.

 

                                                           291

 

 1             MR. ROSEN:  Here's my problem, and perhaps Mr. Zlotoff

 

 2   can clarify it or relieve my problem by representation.  You

 

 3   have before you as Exhibit O a document of World Savings Bank -

 

 4             THE COURT:  Wells Fargo.

 

 5             MR. ROSEN:  I'm sorry.  - Wells Fargo's statements for

 

 6   certain months that Mr. Zlotoff offered - excuse me - marked for

 

 7   identification and offered as Exhibit O.

 

 8             The document that you're holding now, the subpoena and

 

 9   the compliance with the subpoena by the bank, I have not

 

10   compared that to Exhibit O.  If Mr. Zlotoff is representing that

 

11   the documents sent to Mr. Hogan before my time, by the way, are

 

12   exactly the same as what he's offered as Exhibit O, I don't have

 

13   any objection.  But I don't know that without having to sit down

 

14   and compare them, and Mr. Zlotoff just gave me the subpoena.

 

15             THE COURT:  Okay.  Well, during our next break you can

 

16   sit down and compare them, and that'll work fine.

 

17             MR. ROSEN:  I'll take Mr. Zlotoff's representation if

 

18   he's done that.

 

19             THE COURT:  Yeah.  I don't know if he's had the time

 

20   to do it either.

 

21             MR. ROSEN:  Okay.

 

22             MR. ZLOTOFF:  All right.  Finally, Your Honor, -

 

23             THE COURT:  So O isn't admitted it.  It's admitted

 

24   subject to them getting together on this.

 

25             MR. ZLOTOFF:  Right.

 

                                                           292

 

 1             P was - I augmented the list.  P is a Court docket or

 

 2   a Court calendar.

 

 3             THE COURT:  Yeah.  It's a Court calendar for September

 

 4   9 at 2:00 p.m. with a - is that okay, Mr. Rosen?

 

 5             MR. ROSEN:  Well, other than my objection that I've

 

 6   expressed earlier, that -

 

 7             THE COURT:  I don't remember what you're talking

 

 8   about.

 

 9             MR. ROSEN:  Well, -

 

10             THE COURT:  This is just a calendar.  What - what was

 

11   the objection you expressed earlier vis-a-vis the calendar?

 

12             MR. ROSEN:  It's not on the exhibit list.

 

13             THE COURT:  Oh, are you prejudiced in the slightest by

 

14   this?

 

15             MR. ROSEN:  I have no idea.  I don't know what the

 

16   argument that Mr. Zlotoff intends to make from it.  All it is is

 

17   a - is Your Honor's posting of a docket as to what you're

 

18   hearing on a particular day.  I haven't got the slightest idea

 

19   what argument he's going to make, and therefore I cannot respond

 

20   to a question of whether I'm prejudiced.

 

21             And I might say one other thing, Your Honor, because

 

22   you asked me that before.  There is no - in my view,

 

23   respectfully, there is no basis to turn to me and ask if I'm

 

24   prejudiced.  My prejudice would only occur if Mr. Zlotoff

 

25   demonstrated good cause for why a document he's now offering was

 

                                                           293

 

 1   not tendered to us in compliance with Your Honor's order.  I

 

 2   would understand at that point, Your Honor, turning to me.  But

 

 3   you've now reversed the cart and the horse, and you put the

 

 4   burden on me.

 

 5             There's been no showing of good cause with respect to

 

 6   any document, O or P, that was not in Mr. Zlotoff's original

 

 7   exhibit list.

 

 8             MR. ZLOTOFF:  Well, let me explain this document P.  I

 

 9   actually offer it simply that the Court take judicial notice of

 

10   the fact that the trustee withdrew her objection to

 

11   confirmation.  That's - it's noted there on the Court's

 

12   calendar.  I offer it because I think it's pertinent to the

 

13   hearing today.

 

14             THE COURT:  Yeah.  That must be a written objection

 

15   that was submitted on September 1st, see, and it would be part

 

16   of the Court's file of which you've asked me to take judicial

 

17   notice, because it says "Withdrawn with oral amendment on

 

18   September 1st."  So the trustee must have done some on September

 

19   1st and then done something on the record on that day.

 

20             MR. ZLOTOFF:  Right.

 

21             THE COURT:  And I don't know what that is.

 

22             MR. ROSEN:  Your Honor, I have another problem.  I

 

23   don't know what plan it refers to.  As the test- - as the

 

24   argument before you on Friday has already demonstrated, I think

 

25   we're up to plan number four, starting with the very first one

 

                                                           294

 

 1   that the debtor filed on his own, and then there was an

 

 2   amendment, then there was one that Mr. Zlotoff was involved in,

 

 3   then there was a fourth one.

 

 4             So to look at something and say the trustee had

 

 5   withdrawn an objection to a plan, I haven't got the slightest

 

 6   idea what plan it is.

 

 7             MR. ZLOTOFF:  Yeah.  All right.  We - this is part for

 

 8   argument because the fact of the matter is the trustee on the

 

 9   record withdrew her objection.  That's the only reason I'm

 

10   offering it.  And it's -

 

11             THE COURT:  But something must have happened.  Was it

 

12   the objection of September 1st that she withdrew?

 

13             MR. ZLOTOFF:  She - she withdrew an objection to

 

14   confirmation.  That's all.

 

15             THE COURT:  I know, but do you see the reference to

 

16   the September 1st date?

 

17             MR. ZLOTOFF:  Right.  That's when it happened several

 

18   years ago.

 

19             THE COURT:  No.  The calendar was on September 9.

 

20             MR. ZLOTOFF:  Right.

 

21             THE COURT:  Right?

 

22             MR. ZLOTOFF:  I don't know.  What did I do with it.

 

23             THE COURT:  Oh, I see, the objection - I guess the

 

24   objection was the previous year.

 

25             MR. ZLOTOFF:  Right.

 

                                                           295

 

 1             THE COURT:  Because - okay.  I don't know what the

 

 2   objection refers to, so without the help of the transcript of

 

 3   that hearing, it would be hard to know what she was withdrawing

 

 4   her objection to.  But I agree that it was whatever plan was on

 

 5   the table at that time, -

 

 6             MR. ZLOTOFF:  Right.

 

 7             THE COURT:  - and I don't know what that was.

 

 8             MR. ZLOTOFF:  Okay.  The plans haven't changed

 

 9   substantially since then.

 

10             All right.  And then Q was a copy of a transcript and

 

11   a copy of an order made by this Court.

 

12             THE COURT:  Any objection?

 

13             MR. ROSEN:  I have two objections to Q.

 

14             MR. ZLOTOFF:  I can explain the relevancy of that and

 

15   why it wasn't provided earlier.

 

16             THE COURT:  Yes, that would be good.

 

17             MR. ROSEN:  Well, -

 

18             MR. ZLOTOFF:  Okay.

 

19             MR. ROSEN:  - why don't I defer to -

 

20             THE COURT:  If he has no objection, then there would

 

21   be no problem.

 

22             But go ahead.

 

23             MR. ROSEN:  I have an objection, but if Mr. Zlotoff

 

24   wants to tell you the relevance, I'm all ears, Judge.

 

25             MR. ZLOTOFF:  All right.  The reason is that RTC in

 

                                                           296

 

 1   its claims, both the original and its amended claim filed not

 

 2   too long, continues to assert an unsecured claim notwithstanding

 

 3   the fact that it also apparently asserts a secured claim.

 

 4             And so there's a quandary and I felt a need to delve

 

 5   into the record in order to try to sort of the quandary.  And

 

 6   this transcript helps because it is at the point when the - the

 

 7   unsecured claim may have become secured.

 

 8             MR. ROSEN:  Your Honor, my objections are as follows.

 

 9   This is a portion, an excerpt of a transcript of the proceedings

 

10   before Your Honor on July 13th, 1998 on, among other things, the

 

11   debtor's request to reinstate a previously-withdrawn/dismissed

 

12   petition of February of 1998.

 

13             Mr. Zlotoff mentioned this on Friday and he offers

 

14   this, I presume, and in particular page 52 to suggest that Your

 

15   Honor was reinstating the petition retroactively so as to suck

 

16   up, if you will, under the automatic stay provision the judgment

 

17   and lien that we filed between the dismissal of the petition and

 

18   Your Honor's order of reinstatement.

 

19             As Your Honor may recall when Mr. Zlotoff made this

 

20   pitch on Friday, I specifically advised him that he is offering

 

21   exhibits which are - an exhibit which is incomplete and that the

 

22   rest of the transcript conforms to Your Honor's order which is -

 

23   which is - it specifically says that it operates perspective

 

24   only.

 

25             So my first objection is that this is incomplete and

 

                                                           297

 

 1   Mr. Zlotoff has offered a snippet out of context of what Your

 

 2   Honor said on July 13th.

 

 3             Applying Rule 32, if it were a deposition, we would

 

 4   have the right to put in the entirety of the transcript to show

 

 5   in context what Your Honor said.

 

 6             My second objection goes to relevance and that is the

 

 7   issue of whether we filed a lien which Your Honor retroactively

 

 8   invalidated is not an issue in these hearings.  It's not an

 

 9   issue on the motion to dismiss nor is it an issue on the motion

 

10   to confirm.  No motion has been filed with Your Honor to set

 

11   aside the lien.  And any - any argument that the lien is invalid

 

12   is not one properly made in this proceeding.

 

13             I objected to it last time because if Mr. Zlotoff is

 

14   going to take the position that our lien - our judgment lien

 

15   ought be vacated for any reason, I don't care if the reason is

 

16   362 or any other reason, we're entitled to notice and

 

17   opportunity to be heard.  There is no motion pending.  And,

 

18   quite frankly, I cannot see any possible relevance to either of

 

19   the two matters before Your Honor in this trial on that subject.

 

20             It may very well be relevant when we get to a

 

21   sale-of-the-house issue in October, but even that motion doesn't

 

22   ask for a determination to vacate the lien.  It only asks to

 

23   transfer the lien to - to proceeds.  So there's been nothing

 

24   before the Court which would - by way of Mr. Zlotoff - a motion

 

25   by Mr. Zlotoff to vacate the lien.

 

                                                           298

 

 1             And I would only add one last thing, and I don't want

 

 2   to keep saying this because I'm starting to feel like I'm a

 

 3   broken record.  Mr. Zlotoff keeps saying what he said on Friday

 

 4   and that is some - some confusion in his mind as to whether

 

 5   we're a secured or unsecured creditor.  I made it quite clear on

 

 6   Friday that we are both.

 

 7             And as to the time that this - of this hearing on July

 

 8   13th, 1998, I believe the only judgment we had was the judgment

 

 9   for on the jury verdict, as to which we were secured.  However,

 

10   as our notice of claim shows, we have additional judgments which

 

11   are arguably prepetition, including the attorneys' fee award,

 

12   because it arose out of facts prepetition, that make us an

 

13   unsecured creditor.

 

14             So I don't understand Mr. Zlotoff's confusion.  We are

 

15   a secured creditor to the extent of $75,000, subject to any

 

16   motion to vacate our lien or security interest respecting the

 

17   judgment of the - entered on the jury verdict for damages.

 

18   We're an unsecured creditor for other matters, including the

 

19   award of attorneys' fees that was granted by Judge Whyte, after

 

20   July 13th, 1998.

 

21             And I just don't understand what the confusion is.

 

22             MR. ZLOTOFF:  All right, Your Honor.  I'm not going to

 

23   belabor it.  I - I understand what he's saying, and that's fine.

 

24   I don't need it in at this point in time.

 

25             THE COURT:  Are you ready to go back to Ms. Lucas?

 

                                                           299

 

 1             MR. ZLOTOFF:  I am.  I'm going to try, though, I

 

 2   probably won't succeed, because it's going to bore me to tears

 

 3   to do this otherwise, but I'm going to see if I can't have -

 

 4             THE COURT:  What exhibit book are we in?

 

 5             MR. ZLOTOFF:  We're at exhibit -

 

 6             THE COURT:  What exhibit book are we in?

 

 7             MR. ZLOTOFF:  The blue one.

 

 8             THE COURT:  Thank you.

 

 9             MR. ZLOTOFF:  Exhibit B.

 

10             And I'm going to - I'm going to see whether it's - I'm

 

11   going to ask if Ms. Lucas can look at this schedule and see if

 

12   this seems within the range of values for various expenses as

 

13   noted.

 

14             MR. ROSEN:  I'm sorry.  Exhibit B?

 

15             MR. ZLOTOFF:  I'm sorry.  Exhibit - Exhibit B,

 

16   Schedule J.  That would be one, two, three, four, five pages in.

 

17             MR. ROSEN:  Just give me a second to get it, Your

 

18   Honor.

 

19             I object.  This - you've already ruled on this.  You

 

20   ruled in limine, and we just repeated it on this record, this

 

21   exhibit comes in only to show that this is what was filed with

 

22   the Court, not for the truth.  And now counsel is going to ask

 

23   this witness to say whether these items are correct?

 

24             MR. ZLOTOFF:  Of her own opinion, right.  I'm not

 

25   asking her to affirm under penalty of perjury that these are

 

                                                           300

 

 1   accurate.  I'm saying are they within a range of - of numbers

 

 2   that are - that approximate the expense categories for each item

 

 3   indicated.

 

 4             MR. ROSEN:  How would she even know that?

 

 5             MR. ZLOTOFF:  Because she lives in the house in which

 

 6   the expenses are incurred.

 

 7             THE COURT:  Look, you have to establish a foundation

 

 8   that she would know it.

 

 9             MR. ZLOTOFF:  Okay.

 

10             THE COURT:  And then I'll consider the objection.

 

11             MR. ROSEN:  And, Your Honor, can we have - it looks to

 

12   me from where I'm sitting that the witness has the exhibit open.

 

13             MR. ZLOTOFF:  All right.

 

14             MR. ROSEN:  We went through this on Friday.  This is

 

15   not a reading test.  May we ask that the exhibit be closed?

 

16             THE COURT:  Please close the book, Ms. - Ms. Lucas,

 

17   for now.

 

18   BY MR. ZLOTOFF:

 

19   Q.  All right.  Ms. Lucas, can you give us the range as of

 

20   February of '98 for your electricity and heating bill?

 

21   A.  I don't have a specific recollection for that year.  It

 

22   usually ranged between about $60 in the summer and a hundred and

 

23   something in the winter.

 

24   Q.  And can you give us - how would you know this?  How would

 

25   you know anything about your utility bills?

 

                                                           301

 

 1   A.  I paid the bills.

 

 2             MR. ROSEN:  Objection, best evidence rule.  The best

 

 3   evidence of what the actual expenditure is, is the bills.

 

 4             THE COURT:  Overruled.

 

 5   BY MR. ZLOTOFF:

 

 6   Q.  And do you have knowledge with regard to the range of water

 

 7   and sewer bills for 1998?

 

 8   A.  The - the utilities in Palo Alto are actually all in one

 

 9   bill, so the water and sewer and trash collection and

 

10   electricity and gas are a single entity still.  And the figure

 

11   that I gave is - is actually the whole of all of those services.

 

12   Q.  All right.  And of your own personal knowledge, do you know

 

13   how many household telephone - telephones there were, telephone

 

14   numbers, telephone accounts?

 

15             MR. ROSEN:  Objection, Your Honor.

 

16             THE WITNESS:  There -

 

17             MR. ROSEN:  May I just state my objection, my

 

18   additional objection to this?

 

19             The debtor filed Exhibit B with this Court.  It is not

 

20   only sworn to, it is certified by his counsel.  This is

 

21   supposedly an accurate representation of what the expenses of

 

22   the household and of the debtor were at the time this was filed.

 

23             To offer - to allow any evidence by this witness to

 

24   contradict any figure here is to allow - is to - is to ignore

 

25   the estoppel effect of the debtor and his counsel's signature on

 

                                                           302

 

 1   this document.  You simply cannot - indeed, Your Honor, you

 

 2   wouldn't even let the debtor do it if he were here.

 

 3             You can't have a debtor get up on the stand and say,

 

 4   'You know, I swore that my electricity bill was x.  I signed it.

 

 5   I swore to it.  My counsel filed it and he swore and he

 

 6   certified to its accuracy, and now I'm going to get up here and

 

 7   tell you something else.'  That is estoppel.

 

 8             THE COURT:  We don't have the debtor here.  And if I

 

 9   find that I'm incorrect in some of these rulings along the way,

 

10   then I will be in a position where I will have to not rely on

 

11   the information.  And so we have a situation in which the person

 

12   who signed this is not available for trial.  They could be not

 

13   available for the reason that this person is not available or

 

14   not available for some other reason.

 

15             But at this point there's a challenge to the numbers.

 

16   And the debtor's wife is a reasonable person to testify as to

 

17   the range of figures that estimate the correct numbers.  If that

 

18   turns out to be incorrect upon further research, then the Court

 

19   won't rely on it.

 

20             MR. ROSEN:  Your Honor, I -

 

21             THE COURT:  I'm going to take the testimony.

 

22             MR. ROSEN:  I accept the ruling.  I don't want to

 

23   argue with you further except I ask Your Honor to please note if

 

24   it was an inartful choice of words.  You said, quote:  The

 

25   debtor is not available.  "Not available" under law doesn't -

 

                                                           303

 

 1             THE COURT:  No, I don't mean that.  He's not here.

 

 2             MR. ROSEN:  Yeah, he's not here because he's a

 

 3   fugitive.

 

 4             THE COURT:  I know you've said that over and over and

 

 5   over again, Mr. Rosen.

 

 6             MR. ROSEN:  Well, is there any dispute about it?

 

 7             THE COURT:  And you like to say, and I have no problem

 

 8   with - with - nobody's arguing that point.

 

 9             MR. ROSEN:  All right.  Because I - I didn't want the

 

10   record to reflect "not available."  As Your Honor knows, "not

 

11   available" is a term of art under Rule 32.  It means that the -

 

12   it excludes the - the debtor having procured the absence from

 

13   the jurisdiction of, in this case, himself.  And that does not

 

14   qualify as "not available."

 

15             So I just wanted to make sure Your Honor was not using

 

16   the term in the legal sense that it's used under the Federal

 

17   Rules, including Rule 32.

 

18             THE COURT:  I simply meant that he wasn't here.

 

19             MR. ROSEN:  And, Your Honor, my point is you cannot -

 

20             THE COURT:  I know.  I've heard it already.  You've

 

21   said it several times.  Unless you're going to say something you

 

22   haven't said before, I don't want to hear it -

 

23             MR. ROSEN:  Yeah.  I - I was about to.  I was about to

 

24   say, Your Honor, you cannot get away from the fact as to why the

 

25   debtor is not here.  To allow this witness to testify because

 

                                                           304

 

 1   the debtor is improperly not here is simply wrong.

 

 2             THE COURT:  Okay.  Thank you for that.

 

 3             MR. ROSEN:  Okay.

 

 4   BY MR. ZLOTOFF:

 

 5   Q.  Ms. Lucas, did - did you pay telephone bills in or about

 

 6   1998?

 

 7   A.  Yes.

 

 8   Q.  And can you recall the range of charges for telephone bills

 

 9   monthly during that period of time?

 

10             MR. ROSEN:  Your Honor, may we have a specification as

 

11   to whether she's talking about the home phone, Mr. Henson's

 

12   separate phone, her separate phone?

 

13             THE COURT:  Mr. Zlotoff, -

 

14             MR. ZLOTOFF:  Right.

 

15             THE COURT:  - you'll clarify that.

 

16             MR. ZLOTOFF:  Right.

 

17   BY MR. ZLOTOFF:

 

18   Q.  What - what phone bills do you recall paying during that

 

19   period of time?

 

20   A.  The bills were from Pacific Bell and there - they were for

 

21   two lines that came into the house and the area used as an

 

22   office in the back of the office.  One was basically for use

 

23   with the computer modem.  And there were very few calls made for

 

24   that.  It was mostly just the monthly fee.  The other was a

 

25   phone used for both long distance and for local distance.

 

                                                           305

 

 1             MR. ROSEN:  The same objection, Your Honor, on best

 

 2   evidence.

 

 3             THE COURT:  The objection's overruled.  We don't have

 

 4   a number yet.

 

 5             MR. ZLOTOFF:  Right.

 

 6   BY MR. ZLOTOFF:

 

 7   Q.  Do you have a recollection at all about what the combined

 

 8   amount of those phone bills was - on the average.  I don't want

 

 9   you to - in fact, I'm not even asking about a specific bill,

 

10   because it's - I'm asking about a range that may have occurred

 

11   over a whole year.

 

12             MR. ROSEN:  I object to "over a whole year."  The

 

13   issue is the date that this document was filed.  And it was

 

14   filed on August, looks like, 4th, signed by Mr. Zlotoff.  And if

 

15   he wants to ask her about what the telephone bill was at that

 

16   time, subject to my other objections, let him do so.

 

17             But to talk about a year which would include a period

 

18   of time before the petition and a period of time well after the

 

19   petition and well after this document was filed with the Court I

 

20   think is inappropriate.

 

21             MR. ZLOTOFF:  Well, -

 

22             MR. ROSEN:  And I don't see any relevance to asking

 

23   for a range over a year.  If the issue is whether these entries

 

24   on this document filed with this Court are true, then anything

 

25   the witness can say about a range or what the bill is over the

 

                                                           306

 

 1   course of a year is irrelevant.

 

 2             MR. ZLOTOFF:  I disagree because of the fact that

 

 3   we're talking about households here and we're talking about

 

 4   people who generally will not have the same bills for

 

 5   necessities one month versus the next.  I think it would be

 

 6   highly inappropriate and inaccurate and not to the spirit of

 

 7   what's requested by the schedule to simply give the last or the

 

 8   most recent statement and say that's what my expense is.  I

 

 9   think that might be bad faith, quite frankly, if it was not

 

10   typical -

 

11             THE COURT:  Look, I disagree with most of what Mr.

 

12   Rosen said.  People generally try to figure out what their

 

13   monthly bills approximately on average when they file.  They

 

14   don't just figure the prior month.

 

15             But if she's relying on knowledge she obtained after

 

16   this was filed, that probably - well, that has to be excluded.

 

17             MR. ZLOTOFF:  Right.

 

18             THE COURT:  It has to be -

 

19             MR. ZLOTOFF:  Right.

 

20             THE COURT:  - from the period that he signed this and

 

21   before, obviously.

 

22             MR. ZLOTOFF:  Right, right, right.  I misspoke.  So

 

23   actually -

 

24             MR. ROSEN:  I did too.  I meant to say from the date

 

25   it was filed, August 4th, '98, and going backwards.

 

                                                           307

 

 1             THE COURT:  Right.  And that's okay.  She can testify.

 

 2   And I disagree about a range as well.

 

 3             We're not - the goal is not necessarily to find

 

 4   whether this exact number is right by the penny, because it's an

 

 5   estimate in any event.

 

 6   BY MR. ZLOTOFF:

 

 7   Q.  All right.  I think the question was whether you - you have

 

 8   any recollection at all about the combined amount of those bills

 

 9   for that period of time.  This would have been around February

 

10   of '98 or before that for a period of several months.

 

11   A.  I remember that the bills would tend to range from somewhere

 

12   between 80 and $90 to 3- or $400 a month depending on the

 

13   long-distance fees of - of all of us, all three of us.

 

14             MR. ROSEN:  The same objection as to best evidence,

 

15   Your Honor.

 

16             THE COURT:  Overruled.

 

17   BY MR. ZLOTOFF:

 

18   Q.  Who paid for food, groceries during the period of time in or

 

19   about February of '98 - 1998?

 

20   A.  We both did.  We both shopped.

 

21   Q.  And were purchases made by check or credit card, or what was

 

22   the manner of purchase?

 

23   A.  Usually cash or ATM.

 

24   Q.  Was there ever a month when you yourself made all of the

 

25   purchases for food?

 

                                                           308

 

 1   A.  In 1998?

 

 2   Q.  In or about 1998 or before that.

 

 3             MR. ROSEN:  Object to the "before that," unspecified.

 

 4   BY MR. ZLOTOFF:

 

 5   Q.  It could have been, let's say, a few months before 1998, to

 

 6   a few months after 1998.

 

 7             MR. ROSEN:  I object to the timeframe.

 

 8   BY MR. ZLOTOFF:

 

 9   Q.  Were you living with - did your household change at all in

 

10   any manner in terms of who's living there or your needs at any

 

11   point during 1997 and 1998?

 

12   A.  Not as to who was living there, but it changed quite a bit

 

13   in my work schedule and ability to shop; and in the habits of

 

14   our daughter, who was in high school at the time.

 

15   Q.  Okay.  So you may not have a recollection then as far as to

 

16   how much was spent for food right about 199- - February '98?

 

17   A.  I think we worked out that it was at maximum maybe 400 a

 

18   week, depending -

 

19             MR. ROSEN:  Objection, -

 

20             THE WITNESS:  - on how many teenagers were there.

 

21             MR. ROSEN:  Objection, move to strike.  "we worked

 

22   out" discloses that this is some conversion that she had with

 

23   somebody, whether it was Mr. Zlotoff or the debtor, number one.

 

24             Number two, she's already testify that she didn't make

 

25   the purchases during this period.  So what she's now testifying

 

                                                           309

 

 1   to is the amount of money that Mr. Henson separately paid for

 

 2   food, as to which this is blatant hearsay, apart from best

 

 3   evidence.

 

 4             MR. ZLOTOFF:  All right.  Let me try to ask it a

 

 5   different way.

 

 6   BY MR. ZLOTOFF:

 

 7   Q.  Do you remember how much you yourself, just yourself, not

 

 8   Mr. Henson paid for food, groceries in or about February 1998?

 

 9   A.  No.  It was probably very little because I was trying to get

 

10   into my last months of my master's degree.  I did see all of the

 

11   grocery receipts.

 

12             THE COURT:  I need to take a five-minute break and

 

13   then we'll come back.

 

14        (Recess taken from 3:03 p.m. to 3:15 p.m.)

 

15             THE CLERK:  Please rise.

 

16             THE COURT:  Please be seated.

 

17             Counsel, when you came in here on Friday and - is that

 

18   when we started - and Mr. Rosen announced that he didn't have

 

19   any witnesses, I didn't time you, because it didn't seem like

 

20   timing was going to be necessary.  It looked like we were going

 

21   to finish that day, but things have moved on, so I'm going to

 

22   start timing you.  And I just want to let you know that.

 

23             MR. ZLOTOFF:  How much more time do I have, Your

 

24   Honor?

 

25        (Laughter.)

 

                                                           310

 

 1             THE COURT:  I don't know, Mr. Zlotoff.

 

 2             MR. ROSEN:  The answer is 20 hours minus what you

 

 3   used.

 

 4             THE COURT:  Right.

 

 5             MR. ZLOTOFF:  All right.  I hope to be not needing all

 

 6   that time.

 

 7             THE COURT:  I honestly thought you were going to

 

 8   finish today.

 

 9             MR. ZLOTOFF:  That's what I thought.

 

10             THE COURT:  I thought you were going to finish Friday

 

11   and then I thought you were going to finish today.

 

12             MR. ZLOTOFF:  I could have sworn that - in fact, if I

 

13   were betting, I would have bet that it would have been finished

 

14   by now.

 

15             We're on the record?

 

16             THE COURT:  Yes, please proceed.

 

17   BY MR. ZLOTOFF:

 

18   Q.  Okay.  Ms. Lucas, in or about February of 1998, explain

 

19   again who was - who your household consisted of.

 

20   A.  Our - my husband, myself, and our daughter.

 

21   Q.  Okay.  And your daughter was how old at that time?

 

22   A.  1998, 16 and 17.

 

23   Q.  Was she a dependent of yours at that time?

 

24   A.  Yes.

 

25   Q.  Can you describe the health of the persons in your family?

 

                                                           311

 

 1             MR. ROSEN:  Objection.

 

 2             THE COURT:  Overruled.

 

 3             THE WITNESS:  We were in generally good health.  I

 

 4   remember we had some illnesses and accidents.

 

 5   BY MR. ZLOTOFF:

 

 6   Q.  For - let's go back even to the year of 1997.  Was there any

 

 7   extraordinary - well, first of all, who - who paid medical

 

 8   bills?  Who paid prescriptions in the family, for the family,

 

 9   during 1997 up to 19- - up to February 1998.

 

10   A.  '97, '98.  We had health insurance.  We had a health

 

11   insurance policy which covered all three of us.  We had a health

 

12   - health insurance policies that came and went with my

 

13   employment.  And, in general, I purchased prescriptions except

 

14   that Keith also purchased prescriptions.  For himself,

 

15   generally.

 

16   Q.  Okay.  One second.

 

17   A.  I don't remember if that was the time during which we had

 

18   orthodontic work done on our daughter.  It may have been.  That

 

19   was an expensive business.

 

20   Q.  Can you recall of your own recollection how much in total

 

21   was spent during 1997 for medical expenses and prescriptions?

 

22   A.  Not anything specific.  I know it was several thousand.

 

23   Q.  I'm going to -

 

24             MR. ROSEN:  The same objection, by the way, Your

 

25   Honor.  Hearsay and best evidence.

 

                                                           312

 

 1             THE COURT:  Overruled.

 

 2             MR. ROSEN:  Your Honor, I apologize.  I don't want to

 

 3   sound like a broken record.  I just want to make sure that my

 

 4   objections are noted.

 

 5   BY MR. ZLOTOFF:

 

 6   Q.  I'm going to request you turn to - to Exhibit I, the fourth

 

 7   page in.

 

 8             MR. ZLOTOFF:  I'm not intending to introduce this for

 

 9   - for anything, really.

 

10   BY MR. ZLOTOFF:

 

11   Q.  I just want you to look at this document, Schedule A of the

 

12   199- - what purports to be a 1997 income tax return, 1040.

 

13   A.  Yes.

 

14   Q.  Did you prepare this form, this -

 

15   A.  Yes.

 

16   Q.  And if you look on the Schedule A?

 

17   A.  Yes.

 

18   Q.  Under "Medical and Dental Expenses," does that refresh your

 

19   recollection with respect to medical and dental for that year?

 

20             MR. ROSEN:  Objection.  The witness didn't testify her

 

21   recollection needed refreshing.  The last answer was she

 

22   provided an answer as to what the expenses were.

 

23             THE COURT:  Overruled.  She told us she didn't

 

24   remember what the - when the orthodontic hit.

 

25             MR. ROSEN:  That was two questions ago, Judge.  It

 

                                                           313

 

 1   wasn't the last question.

 

 2             THE COURT:  The ruling stands.

 

 3             THE WITNESS:  I'm sorry.  What was the question?

 

 4   BY MR. ZLOTOFF:

 

 5   Q.  The question was in the Medical and Dental expense column on

 

 6   Schedule A, does that refresh your - there are numbers there.

 

 7   A.  Yes.

 

 8   Q.  Did you prepare the numbers?

 

 9   A.  Yes.

 

10   Q.  Does this refresh your recollection with regard to how much

 

11   was spent during that year and for what?

 

12   A.  Yes.

 

13   Q.  And can you, of your own recollection now, can you tell us

 

14   now what...

 

15   A.  Given the amount, it probably did include dental work for

 

16   our daughter.  In 1997 I can't remember specifically what

 

17   accidents we sustained.  I do have - on Friday I brought our

 

18   1997 expenses, and I have all the medical receipts in there.  It

 

19   included both preventive visits, vaccinations, physical

 

20   examinations.  I can't remember if that was one of the years I

 

21   broke a bone.  My husband's hypertension medications.  Both

 

22   ordinary and extraordinary prescriptions and medical travel

 

23   and -

 

24   Q.  Would it have included - did you have -

 

25             MR. ROSEN:  Excuse me, Your Honor.  I'm sorry, Mr.

 

                                                           314

 

 1   Zlotoff.  I move to strike this on several grounds.  Number one,

 

 2   you've already ruled this document is not in evidence.  The

 

 3   witness is now just reading from the document, number one.

 

 4             Number two, this is an attempt to impeach the schedule

 

 5   signed and sworn to by the debtor, which is again collateral

 

 6   attack on - on what the debtor told the Court.

 

 7             Number three, these are the very documents that the

 

 8   witness has now testified that she's recently reviewed which we

 

 9   were told by Mr. Henson he destroyed.  And I will read it to you

 

10   again if Your Honor wants, but when we deposed him in the year

 

11   2000 in a 2004 examination, his testimony was the underlying

 

12   documents of the tax return, he said, "I'll take my chances with

 

13   the IRS.  I'm going to destroy them."

 

14             And my fourth - so to allow this witness to now

 

15   testify as to what these expenditures were, it strikes me as

 

16   just being absolutely improper.  And the last objection -

 

17             THE COURT:  Haven't you had this - haven't you had

 

18   this exhibit for a long time?

 

19             MR. ROSEN:  What exhibit?  The one she's talking

 

20   about, the underlying records?

 

21             THE COURT:  No.  The exhibit from which she's

 

22   testified.

 

23             MR. ROSEN:  The tax return?

 

24             THE COURT:  Yes.

 

25             MR. ROSEN:  Yes, but the tax return is not admitted

 

                                                           315

 

 1   for the truth of what's in there.  She's testifying that she

 

 2   went back recently and reviewed the underlying records of the

 

 3   medical expenses.  And I'm saying how can you possibly do that

 

 4   when - when Mr. Henson testified in 2004 that they had been

 

 5   destroyed?

 

 6             And my last objection, Your Honor, is I'm - I must be

 

 7   missing something, but I am looking at this exhibit, Schedule A,

 

 8   and there is no differentiation here, as near as I can see,

 

 9   between Mr. Henson's expenses versus the expenses of Ms. Lucas,

 

10   who paid what expenses, how much of this is insurance, how much

 

11   of this was reimbursed.  I have no idea.

 

12             THE COURT:  Well, I -

 

13             MR. ZLOTOFF:  Your Honor, -

 

14             THE COURT:  Okay.  Go ahead.

 

15             MR. ZLOTOFF:  Well, all of this is great for

 

16   cross-examination.  I simply gave her a document that had just

 

17   some bare numbers on it.  There wasn't any underlying

 

18   documentation or - that she's testifying about.  This is just

 

19   used to jog her memory.

 

20             And based on the - the magnitude, she was able to, for

 

21   example, remember about the dental and other things.

 

22             THE WITNESS:  Excuse me,, Your Honor.  I did bring

 

23   with me on Friday -

 

24             THE COURT:  You need to - you need to get to the

 

25   microphone.  I can't -

 

                                                           316

 

 1             THE WITNESS:  I did bring with me on Friday the 1997

 

 2   records that Mr. Rosen is saying were destroyed.  I can bring

 

 3   them back with me tomorrow.  I'll be glad to.  They were not

 

 4   destroyed.

 

 5             MR. ROSEN:  I didn't say they were destroyed.  I said

 

 6   Mr. Henson testified they were.

 

 7   BY MR. ZLOTOFF:

 

 8   Q.  Okay.  Oh, I was going to ask you when you were -

 

 9             THE COURT:  Wait a second.  So you're testifying from

 

10   exhibits that weren't provided to the other side?

 

11             THE WITNESS:  I -

 

12             THE COURT:  From documents that weren't provided to

 

13   the other side?

 

14             THE WITNESS:  I thought they were provided.

 

15             MR. ZLOTOFF:  Your Honor, I - honestly I don't know

 

16   what Mr. Rosen is referring to.  I honestly don't.

 

17             And I thought that all documents were provided as

 

18   well.  So I - I don't know -

 

19             THE COURT:  Okay.  So I'll take the testimony.  If he

 

20   wants to make a motion to strike, he can include it in a

 

21   posttrial brief, because there's no way to deal with all this

 

22   instantaneously.

 

23   BY MR. ZLOTOFF:

 

24   Q.  All right.  I was going to ask you with regard to the

 

25   medical whether that included health insurance premiums?

 

                                                           317

 

 1             THE COURT:  And, by the way, for the tax purposes -

 

 2   well, that's all right.  I - I can deal with that in this issue.

 

 3   Never mind.

 

 4             Go ahead.

 

 5             THE WITNESS:  As I remember, a portion of the tax,

 

 6   because it was for self-employed purposes, was included here and

 

 7   a portion was included on a previous page, where it's allowed to

 

 8   take it off the top, more or less.  We were self-insured except

 

 9   where my - I had insurance of my own and covered my family when

 

10   I could from my own employment.

 

11             THE COURT:  I just have a question to clarify

 

12   something in response to something Mr. Rosen said.

 

13             When you list medical - and I'm not asking you about

 

14   any particular document.  When you would list medical and dental

 

15   expenses on a tax form, do you include those that were

 

16   reimbursed as well as those that were unreimbursed?

 

17             THE WITNESS:  No.

 

18             THE COURT:  What do you include?

 

19             THE WITNESS:  Everything that we actually paid.  And

 

20   if - I subtract out what was reimbursed.

 

21   BY MR. ZLOTOFF:

 

22   Q.  Ms. Lucas, did you make the mortgage payments in or about

 

23   February of '98?

 

24   A.  Yes.

 

25   Q.  Did the mortgage payments include property tax and

 

                                                           318

 

 1   insurance, home insurance?

 

 2   A.  No.

 

 3   Q.  Those were separate payments?

 

 4   A.  Yes.

 

 5   Q.  Do you remember how much a year those were at that time?

 

 6   A.  They've gone up considerably.  I think then they were 2,- or

 

 7   3,000 a year.

 

 8             MR. ROSEN:  Objection, Your Honor.  Hearsay, best

 

 9   evidence rule.  The question is how much the tax payments were,

 

10   real estate tax payments were.  At this point in time the best

 

11   evidence is the tax bill.

 

12             MR. ZLOTOFF:  Let me - let me see if I can address

 

13   that.

 

14   BY MR. ZLOTOFF:

 

15   Q.  Do you -

 

16             THE COURT:  If we were seeking the exact number, that

 

17   would be the case.  If we're - if we're satisfied for this

 

18   purpose with a range, and Mr. Zlotoff apparent is, then the

 

19   objection's overruled.

 

20             MR. ROSEN:  Well, Your Honor, if - my objection to the

 

21   range is that a range is irrelevant.  The issue is whether or

 

22   not the statement contained in the debtor's schedules is

 

23   accurate.  And a range leaves us nowhere.

 

24             For example, if the debtor says that his particular

 

25   expense was a thousand dollars a month and the witness says the

 

                                                           319

 

 1   range for that expense was 500 to $1500, that is irrelevant to

 

 2   whether or not the - the debtor's statement of a thousand

 

 3   dollars a month is accurate.  So again I mean if we're talking

 

 4   about a range, it's irrelevant.

 

 5             THE COURT:  I hear you, Mr. Rosen.  I'm not convinced

 

 6   that it's irrelevant, but it may be on a - answers to particular

 

 7   questions may be irrelevant.

 

 8   BY MR. ZLOTOFF:

 

 9   Q.  I'm sorry.  Did we get an answer as far as what - what you

 

10   recall paying in or about that time per year for taxes and

 

11   insurance?

 

12   A.  I have -

 

13   Q.  If you recall.

 

14   A.  - remembered that it was around 2,- or 3,000.

 

15   Q.  Okay.  Were you involved in - this again refers to 1997,

 

16   1998, up until I guess the summer of '98, were you involved in -

 

17   in assisting your husband with any kind of tax payments that

 

18   were required?

 

19   A.  How do you mean, "assisting"?

 

20   Q.  Well, was - did you assist him with regard to any quarterly

 

21   tax payments?

 

22   A.  Oh, yes.  I figured them out.  Usually up through '97, at

 

23   least '97 if not '98, I used software to figure the quarterly

 

24   tax payments.

 

25   Q.  Now do you have any recollection now as to what those

 

                                                           320

 

 1   quarterlies amounted to, if you remember, in 1998, I guess the

 

 2   quarterly next nearest the filing would have been, what, that

 

 3   March, the end of March of '98?

 

 4             MR. ROSEN:  Objection.  Not only is it best evidence -

 

 5             THE COURT:  Yes or no first.  Let's see what she says.

 

 6             THE WITNESS:  Yes.

 

 7   BY MR. ZLOTOFF:

 

 8   Q.  Okay.  Can you recall what - what the amount of the

 

 9   quarterlies were that - for that time?

 

10             MR. ROSEN:  Objection.  Your Honor, not only best

 

11   evidence rule, but this witness - there's no foundation laid

 

12   that this witness knows anything about Mr. Henson's earnings,

 

13   which would supposedly be required to be reflected in quarterly

 

14   tax payments to the IRS or the State of California.

 

15             She's testifying that she wrote down what he told her.

 

16   That hasn't - that's not proof that - of the fact of what - of

 

17   what his earnings were.

 

18             MR. ZLOTOFF:  No.  She said she used a program.  I

 

19   don't - I mean I'm not asking her -

 

20             THE COURT:  Ms. - Ms. Lucas, did you learn what the

 

21   quarterly tax payments were because Mr. Henson told you?

 

22             THE WITNESS:  No.  I estimated on the basis of

 

23   invoices that I saw and checks coming in.  And then I asked him

 

24   what he might estimate, whether this was going to be a

 

25   reasonable projection based on what I had seen.

 

                                                           321

 

 1             MR. ROSEN:  All right.  That's hearsay, Judge.

 

 2             THE COURT:  The latter part is.

 

 3             MR. ROSEN:  What she saw in documents as well as what

 

 4   he told her is hearsay.

 

 5             She's now testifying that she prepared a quarterly tax

 

 6   statement based on some, quote, documents, unspecified documents

 

 7   that she saw.

 

 8             THE COURT:  Right.

 

 9             MR. ZLOTOFF:  Well, -

 

10             THE COURT:  But the amount that she paid for quarterly

 

11   tax payments, whether they were right or wrong, she can testify

 

12   to.

 

13             MR. ROSEN:  That's all.  And -

 

14             THE COURT:  Right.

 

15             MR. ROSEN:  - and I don't have any objection to that.

 

16             THE COURT:  Right.

 

17   BY MR. ZLOTOFF:

 

18   Q.  Okay.  Yeah.  So do you have a recollection of - just a

 

19   number?

 

20   A.  I remember that in that year, for the first time in - in

 

21   several years since he had his large - worked regularly for

 

22   large clients, that it fell below a thousand dollars a quarter.

 

23             MR. ROSEN:  Objection.  Move to strike comments about

 

24   large clients, not responsive to the question.  The question is

 

25   what he reported, she reported is that - as the quarterly tax

 

                                                           322

 

 1   payment.  If she wants to say a thousand dollars, I don't have

 

 2   any objection to that.

 

 3             THE COURT:  Is that the way you remember?

 

 4             THE WITNESS:  Yes.

 

 5             THE COURT:  Overruled.

 

 6   BY MR. ZLOTOFF:

 

 7   Q.  Ms. Henson, - Ms. Lucas, do you recall, again during 1997,

 

 8   1998, whether Mr. - Mr. - well, you and Mr. Henson in connection

 

 9   with your tax returns took any kind of write-offs for travel

 

10   expenses?

 

11   A.  In 1997, 1998?

 

12   Q.  Let's say 1997.  I'm sorry.

 

13   A.  '97.

 

14   Q.  1997.

 

15   A.  He -

 

16             THE COURT:  But he's not asking you what happened.

 

17   It's a yes or no question.

 

18             THE WITNESS:  Yes.  I'm sorry.

 

19             Yes.

 

20   BY MR. ZLOTOFF:

 

21   Q.  And again who - for purposes of figuring out at the year end

 

22   what amounts were used for travel expenses, whose job was that,

 

23   yours -

 

24   A.  That was -

 

25   Q.  - or Mr. - or Mr. Henson?

 

                                                           323

 

 1   A.  Sorry.  That was mine.

 

 2   Q.  And in doing that job what did you - what did you look at?

 

 3   What did you - how did you put together that information?

 

 4   A.  Receipts.

 

 5   Q.  And where did you get the receipts?

 

 6   A.  I had either obtained receipts, for instance airline

 

 7   receipts, tickets through the mail, credit card bills that I

 

 8   opened and recorded, or receipt slips that I obtained from my

 

 9   husband.

 

10             MR. ROSEN:  Your Honor, can I ask for clarification?

 

11             They -

 

12             THE COURT:  You can ask me.

 

13             MR. ROSEN:  Yes.  That's what I am.  I said Your

 

14   Honor.

 

15             THE COURT:  You're looking at her, so I'm afraid she's

 

16   going to answer you.

 

17             MR. ROSEN:  No, no.

 

18             THE COURT:  Go ahead.

 

19             MR. ROSEN:  Your Honor, may I ask that the witness be

 

20   asked for clarification, and I don't understand the answer as to

 

21   whether the travel expenses she's talking about are expenses of

 

22   Mr. Henson or of her.

 

23             And the second clarification I would ask Your Honor to

 

24   have the witness provide is she said she opened credit card

 

25   bills.  Is she talking about her credit card bills or Mr.

 

                                                           324

 

 1   Henson's?

 

 2             THE COURT:  Or both.

 

 3             MR. ROSEN:  Or both.

 

 4             THE COURT:  Do you want to provide clarification, Mr.

 

 5   Zlotoff?

 

 6             MR. ZLOTOFF:  Yeah.  I think she testified that she -

 

 7   well, go ahead.  I - are we -

 

 8             THE COURT:  No, that's fine.  Say whatever you want.

 

 9   I'm sorry.

 

10   BY MR. ZLOTOFF:

 

11   Q.  Were you compiling information for the year 1997 for just

 

12   you or for you and Mr. Henson or either of your or...

 

13   A.  I filed out Schedule C which is for an owner-run business,

 

14   self-employment form.  And so I separated out my expenses and

 

15   Mr. Henson's expenses according to the promptings on the

 

16   software.

 

17   Q.  Okay.  And do you - do you recall - of your own

 

18   recollection, do you recall - let me ask you this.

 

19             Was the amount that you recall having spent for

 

20   travel-related work expense in 1997 greater or less than what

 

21   was spent in 1998 for travel-related work -

 

22   A.  Great-

 

23             MR. ROSEN:  Objection.

 

24             THE WITNESS:  Excuse me.

 

25             MR. ROSEN:  Is - is counsel talking only about the

 

                                                           325

 

 1   witness' own travel expense for business or is she talking about

 

 2   Mr. Henson's?

 

 3             MR. ZLOTOFF:  I'm talking about both.

 

 4             THE WITNESS:  As to Mr. Henson's expenses, I remember

 

 5   that it was less for business purposes.  As to mine, I remember

 

 6   that it was - 1998 - that it was more.

 

 7             MR. ROSEN:  Move to strike, best evidence rule.

 

 8             THE COURT:  Overruled.

 

 9             MR. ROSEN:  I should also say no foundation and

 

10   hearsay, just to complete my objection, Your Honor.

 

11   BY MR. ZLOTOFF:

 

12   Q.  Were - Ms. Lucas, in or about February of - actually in or

 

13   about - well, let's say February of '98, were you employed?

 

14   A.  February.

 

15   Q.  '98.

 

16   A.  Yes.

 

17   Q.  And where was that?

 

18   A.  Stanford University.

 

19   Q.  Okay.  And at some point later on that year in '98 did - did

 

20   you seek other employment?

 

21   A.  Yes.

 

22   Q.  And somewhere around, let's say, August of '98 were you at a

 

23   different employment?

 

24   A.  Yes.

 

25   Q.  And where were you employed then?

 

                                                           326

 

 1   A.  I - in August of 1998 I was employed by EBSCO, EBSCO doc.

 

 2   And -

 

 3             THE COURT:  EBSCO what?

 

 4             THE WITNESS:  It's called EBSCO.  E- - it's all

 

 5   capitals, E-B-S-C-O and then small letters d-o-c.  They are no

 

 6   longer in business.  They went out of business that year.

 

 7             I believe in August I also sought employment and

 

 8   received employment back at Stanford University in another

 

 9   capacity in another department.

 

10   BY MR. ZLOTOFF:

 

11   Q.  All right.  For how many months were you at EBSCO?

 

12   A.  I believe it was three.

 

13   Q.  All right.  And where was EBSCO located?

 

14   A.  Burlingame, California.

 

15   Q.  Were you paid a salary or an hourly wage?

 

16             MR. ROSEN:  Objection, Your Honor.  What possible

 

17   relevance does this have to anything?  She's not the debtor.

 

18             THE COURT:  Are we talking about family income?

 

19             MR. ZLOTOFF:  Right.

 

20             MR. ROSEN:  Family income at the time the petition was

 

21   filed?

 

22             MR. ZLOTOFF:  No.  At the time -

 

23             THE COURT:  Why is her income in August relevant?

 

24             MR. ZLOTOFF:  Because that's when the schedule was

 

25   filed, an amended schedule.

 

                                                           327

 

 1             THE COURT:  You can answer.

 

 2             THE WITNESS:  I'm sorry.  I lost the question.  What

 

 3   was it again?

 

 4   BY MR. ZLOTOFF:

 

 5   Q.  Do -

 

 6             THE COURT:  Were you paid a salary -

 

 7             THE WITNESS:  Oh.  Oh.

 

 8             THE COURT:  - or were you paid an hourly at EBSCO?

 

 9             THE WITNESS:  Hourly wage.

 

10   BY MR. ZLOTOFF:

 

11   Q.  All right.  And do you recall roughly your gross and net per

 

12   month, on the average, if you recall -

 

13             MR. ROSEN:  At what point in time is this, Your Honor?

 

14             MR. ZLOTOFF:  This - when - she only worked there for

 

15   three months, so.

 

16             THE WITNESS:  It was, I believe, $12 an hour.

 

17   BY MR. ZLOTOFF:

 

18   Q.  Do you remember any paychecks?

 

19   A.  Not - I remember getting them, but I don't remember the

 

20   exact amounts.

 

21   Q.  Do you remember approximately?

 

22   A.  I'd just have to multiply it out.  I began working in August

 

23   two jobs, and that kept on going up to three jobs, and so that's

 

24   a very blurry period for me, as I eventually worked 72 hours a

 

25   week.

 

                                                           328

 

 1   Q.  Is there a reason you worked so often - so much?

 

 2             MR. ROSEN:  Objection.  What does this have -

 

 3             THE COURT:  Overruled.

 

 4             MR. ROSEN:  - to do with anything?

 

 5             This is long after any period of relevance.

 

 6             THE COURT:  It's approximately during when the

 

 7   schedule were being filed -

 

 8             MR. ZLOTOFF:  The schedule - the amended schedules

 

 9   were filed August of 1998.

 

10             MR. ROSEN:  August 4th.  And she's testifying to a

 

11   period which she did after August 4th.

 

12             THE COURT:  Is that true, are you testifying for the

 

13   period after August 4th?

 

14             THE WITNESS:  As far as the third job was concerned,

 

15   yes.

 

16             THE COURT:  Were you working two jobs as of August 4?

 

17             THE WITNESS:  Yes.

 

18             THE COURT:  It seems to me that - I don't see any

 

19   relevance to anything that happened after the schedule was

 

20   filed -

 

21             MR. ZLOTOFF:  I withdraw the question, Your Honor.

 

22   BY MR. ZLOTOFF:

 

23   Q.  Did you work 40-hour weeks?

 

24   A.  I worked more than 40 hours.

 

25   Q.  Okay.  Did your daughter attend private school or public

 

                                                           329

 

 1   school?

 

 2   A.  Public school.

 

 3   Q.  Were there, as you recall, any school-related expenses you

 

 4   had to pay, fees or whatnot that she incurred or you had to pay

 

 5   for her?

 

 6   A.  Yes.

 

 7             MR. ROSEN:  Objection - objection, best evidence.

 

 8   Also can we have a time?  I assume, and perhaps I just want to

 

 9   make sure that we're talking about the period in 1998 up till

 

10   August 4th of '98.  That's what the question, -

 

11             MR. ZLOTOFF:  Yes.

 

12             MR. ROSEN:  - the time referenced in the question and

 

13   the answer?

 

14             MR. ZLOTOFF:  Yes.

 

15             MR. ROSEN:  Okay.

 

16   BY MR. ZLOTOFF:

 

17   Q.  Do you recall handling or paying - again this would be as

 

18   of, let's say, August of '98, automobile insurance, did you take

 

19   care of paying that bill?

 

20   A.  Yes.

 

21   Q.  Do you recall what that was at that time?

 

22   A.  I seem to remember it was something like $800 a year.

 

23             MR. ROSEN:  The same objection, Your Honor -

 

24   objections I should say.  Best evidence, hearsay, and attempt to

 

25   impeach the sworn statement of Mr. Henson.

 

                                                           330

 

 1             MR. ZLOTOFF:  I'm not trying to impeach anything.

 

 2   She's giving her impression based upon her having paid bills,

 

 3   what she recalls as being an average amount, not this specific

 

 4   amount, but an average amount at - at the period of time.

 

 5   That's all that the law requires as far as I'm concerned with

 

 6   regard -

 

 7             THE COURT:  The objection's overruled.

 

 8   BY MR. ZLOTOFF:

 

 9   Q.  I don't recall, but can you refresh our recollection as far

 

10   - as far as the life insurance, the Al- - the Alcor -

 

11             THE COURT:  The witness is now refreshing the lawyer's

 

12   recollection.

 

13   BY MR. ZLOTOFF:

 

14   Q.  As far as the Alcor, was that - did you have to pay a

 

15   premium on that or was that - was the premium paid by the cash -

 

16   the cash value that was built up?

 

17   A.  It was paid each month.

 

18   Q.  You had to pay it?

 

19   A.  Yes.

 

20   Q.  I see.  And do you remember - did you handle that payment to

 

21   those?

 

22   A.  Yes.

 

23   Q.  Okay.  And that - did you notice that on the schedule, or do

 

24   you remember off your own recollection what the amounts were?

 

25             MR. ROSEN:  Objection.  Is the question how much the

 

                                                           331

 

 1   premium was for the witness or how much the premium was for Mr.

 

 2   Henson?

 

 3             MR. ZLOTOFF:  Both.  What the premiums were - they

 

 4   were the same.

 

 5   BY MR. ZLOTOFF:

 

 6   Q.  You had - you had a policy; is that right?  You had your

 

 7   insurance and Mr. Henson had a similar one; is that right?

 

 8   A.  I had thought of them as being separate at that time.  I

 

 9   knew that they were billed together.  I learned later that

 

10   apparently they're the same policy, which surprised me.

 

11   Q.  Okay. 

 

12             THE COURT:  Do you remember how much it was?

 

13             THE WITNESS:  Yes.  Seventy dollars a month.

 

14             THE COURT:  Is that for - covering both you and Mr.

 

15   Henson?

 

16             THE WITNESS:  Yes, that's right.

 

17   BY MR. ZLOTOFF:

 

18   Q.  Do you recall having - again this would be during 1998,

 

19   specifically in or around February - February '98 - I'm sorry -

 

20   March - August '98, having to outlay funds at all for upkeep or

 

21   maintenance of the house?

 

22   A.  Yes.

 

23   Q.  And do you remember any specific projects or things that

 

24   were required with regard to that type of expense -

 

25             MR. ROSEN:  In - in August of '98; is that the

 

                                                           332

 

 1   question?

 

 2             MR. ZLOTOFF:  Yes.

 

 3             THE WITNESS:  I don't remember any specific outlays.

 

 4   There were constant maintenance problems.

 

 5   BY MR. ZLOTOFF:

 

 6   Q.  Okay.  Did Keith have - again, in or around August of '98,

 

 7   did Keith have an office in the house, in your house there at

 

 8   College Avenue?

 

 9   A.  Yes.

 

10   Q.  Did he do a lot of his work there in the house?

 

11             MR. ROSEN:  Objection.  No basis for this witness to

 

12   testify.  She's out working two jobs, according to her own

 

13   testimony.  How would she possibly know how much her work does

 

14   in the house versus out of the house?

 

15             THE COURT:  Overruled.

 

16             THE WITNESS:  Yes.  He did a lot of work in the house.

 

17   He also did work outside the house.

 

18             MR. ZLOTOFF:  I'm - I'm going to see if I can do it

 

19   again.  I'll probably not succeed.  But I'm going to ask based

 

20   upon her clearly having a close connection with the invoices,

 

21   the receipts, the bills, the computer, the tax returns, his

 

22   having an office in the house, I'm going to ask whether she -

 

23             THE COURT:  Ask.

 

24             MR. ZLOTOFF:  - whether she knew -

 

25             THE COURT:  Are you - who are you talking to?

 

                                                           333

 

 1             MR. ZLOTOFF:  Whether she knew what - what -

 

 2   approximately what his income was in or about August of 1998.

 

 3             MR. ROSEN:  Objection.  This has already been ruled

 

 4   on.

 

 5             THE COURT:  Wait, the question wasn't finished even

 

 6   before you said your objection.

 

 7             In or - what?  In or about -

 

 8   BY MR. ZLOTOFF:

 

 9   Q.  In or about August of 1998, what -

 

10             THE COURT:  What Mr. Henson's was or what Mrs.

 

11   Henson's was or what -

 

12             MR. ZLOTOFF:  What Ms. - Ms. -

 

13             THE COURT:  - the combined income of the family -

 

14             MR. ZLOTOFF:  No, no.

 

15             THE COURT:  - was?

 

16             MR. ZLOTOFF:  No, no.  Mr. Henson, what his income

 

17   was.

 

18             MR. ROSEN:  Objection.  The question was already

 

19   answered.  Your Honor sustained the objection to it.

 

20             MR. ZLOTOFF:  That was before there was a good deal of

 

21   foundation laid by -

 

22             MR. ROSEN:  There's no foundation laid to show that

 

23   this witness has any firsthand knowledge of what her husband

 

24   made.  There's no documents, there's nothing.  And if she has

 

25   any knowledge at all it is solely based on what her husband told

 

                                                           334

 

 1   her, which is hearsay.

 

 2             THE COURT:  Did - wait.

 

 3             MR. ZLOTOFF:  No, she -

 

 4             THE COURT:  Wait a second.

 

 5             I'm not - I don't want you to answer anything about

 

 6   how much your husband made or didn't make.  But do you have

 

 7   knowledge of what your husband made?

 

 8             THE WITNESS:  Yes.

 

 9             THE COURT:  Okay.  And what is that based?

 

10             THE WITNESS:  The fact that he didn't go to work

 

11   during August of that year.

 

12             THE COURT:  At all?

 

13             THE WITNESS:  He was -

 

14             THE COURT:  No, we're talking about for the year,

 

15   right?  Or you want to know -

 

16             THE WITNESS:  No, in August -

 

17             THE COURT:  - just about August?

 

18             MR. ZLOTOFF:  Just August.

 

19             THE COURT:  What do you want to know, just August?

 

20   BY MR. ZLOTOFF:

 

21   Q.  Let's start with August.

 

22             THE COURT:  Okay.

 

23             THE WITNESS:  He was looking for work.

 

24             THE COURT:  So he was unemployed in August?

 

25             THE WITNESS:  Yes.

 

                                                           335

 

 1             MR. ROSEN:  I object and ask to strike "He was looking

 

 2   for work."  That's hearsay.  This witness doesn't have any

 

 3   firsthand knowledge of whether her husband was looking for work

 

 4   or not.

 

 5             MR. ZLOTOFF:  How could she not - how could you say

 

 6   that?

 

 7   BY MR. ZLOTOFF:

 

 8   Q.  I mean did you perceive him looking for work?

 

 9   A.  Yes.  I saw him at the computer sending out email to

 

10   employers.  I helped him remember his appointments with

 

11   prospective employers.  I assisted him in every way I could to

 

12   get his résumé together, anything that he needed.

 

13   Q.  Did you have any direct knowledge of any - on your own,

 

14   without having discussions with Mr. Henson, with regard to any

 

15   employment engagements that he next obtained after August?

 

16             MR. ROSEN:  Hearsay.

 

17             MR. ZLOTOFF:  I'm saying not hearsay.  I don't want

 

18   her to tell me any hearsay.  It's either yes or no.  She either

 

19   knows or she doesn't, of her own.

 

20             For all I know, she could have been -

 

21             THE COURT:  Let's not give her suggestions.

 

22             MR. ZLOTOFF:  All right.

 

23             THE WITNESS:  I did -

 

24             THE COURT:  It's a yes or no, right?

 

25             THE WITNESS:  Yes.

 

                                                           336

 

 1   BY MR. ZLOTOFF:

 

 2   Q.  And -

 

 3             THE COURT:  Say it again because our voices

 

 4   overlapped.

 

 5             THE WITNESS:  Yes.

 

 6   BY MR. ZLOTOFF:

 

 7   Q.  And just - don't tell me what it is.  Just tell me what the

 

 8   basis is for having personal knowledge, what facts, what

 

 9   perceptions did you personally witness with regard to any

 

10   employment?

 

11   A.  I saw his invoices and I talked with his employers when he

 

12   had them.

 

13             MR. ROSEN:  I move to strike that on the grounds that

 

14   it's hearsay and not best evidence.  How could this witness

 

15   possibly be allowed to testify that she saw invoices that have

 

16   not been produced?

 

17             THE COURT:  Because she hasn't testified anything from

 

18   the invoices.

 

19             MR. ROSEN:  Yes, she does.  She has.

 

20             THE COURT:  She hasn't testified as to what invoices

 

21   said.

 

22             MR. ROSEN:  She's testified -

 

23             THE COURT:  She's just said that he was looking for

 

24   work before.

 

25             MR. ROSEN:  She testified the - the truth of the - of

 

                                                           337

 

 1   the testimony, which has already been offered is that he was

 

 2   working, as evidenced by the fact that she saw invoices from his

 

 3   employers.  That testimony that she saw invoices is offered for

 

 4   the truth, to support her testimony that she is - that he was

 

 5   working.

 

 6             THE COURT:  Yeah, but her perception that he was

 

 7   working, I understand.  It's overruled.

 

 8   BY MR. ZLOTOFF:

 

 9   Q.  Ms. - Ms. Lucas, -

 

10             THE COURT:  Was he - okay.  That's fine.  Go ahead.

 

11   BY MR. ZLOTOFF:

 

12   Q.  Ms. Lucas, again you prepared the 1997 income tax return.

 

13   Do you recall what the total gross income was for both of you

 

14   for that year?

 

15   A.  Not with -

 

16             MR. ROSEN:  I object.  This is a backdoor way of

 

17   avoiding an in limine motion.  The in limine ruling was this

 

18   docket.  The tax return does not come in for the truth, and this

 

19   is just a backdoor way of putting in in the exact same

 

20   information.

 

21             MR. ZLOTOFF:  I'm - Your Honor, I'm - we don't have to

 

22   have the document.  She can tes- - she filled out her tax

 

23   return.  It was an event that she did at the time and it happens

 

24   to have relevance, I think.

 

25             THE COURT:  If she signed a tax return she can testify

 

                                                           338

 

 1   that she signed a tax return that went in.  That's not a

 

 2   problem.  If - if he's not here, then he obviously can't - the

 

 3   document cannot come in without supporting testimony.  But if

 

 4   she says, 'This is the tax return that I sent to the IRS,' that

 

 5   can come in.

 

 6             MR. ROSEN:  And it can't come in for the truth of

 

 7   what's in it.  If there's some relevance to showing she sent it

 

 8   to the IRS, yes.  But it's being offered - being offered in

 

 9   contradiction to the in limine ruling presumably to show how

 

10   much income was reported.

 

11             THE COURT:  I understand, but how much income was

 

12   reported is - also can come in, because it was reported, how

 

13   much income was reported because she sent it in and she's here.

 

14             Your in limine motion presumed that the document by

 

15   itself could not come in, and that's true.  There was nobody who

 

16   sent it in.  But if she says, 'This is my tax return and this is

 

17   what I sent to the IRS,' it does show what was reported to the

 

18   IRS by her.

 

19             MR. ROSEN:  Your Honor, I - you're absolutely correct.

 

20   If the issue is and if it has any relevance what she reported to

 

21   the IRS as opposed to what the truth is then the tax return

 

22   comes in to show what she reported.  I don't think what she

 

23   reported to the IRS has any relevance to the issues before you

 

24   because, as Your Honor just said, even if you let the tax return

 

25   in or her testimony in as showing what she reported to the IRS,

 

                                                           339

 

 1   that does not show what the truth is respecting Mr. Henson's

 

 2   earnings.

 

 3             So if we understand that, that it cannot come in for

 

 4   the - neither the return nor her testimony, for the truth of how

 

 5   much Mr. Henson made that year, then I respectfully suggest

 

 6   there is no relevance to the proposition of what was reported to

 

 7   the IRS.  And - and -

 

 8             THE COURT:  We'll see whether -

 

 9             MR. ROSEN:  And my -

 

10             THE COURT:  - whether it's relevant or not from what

 

11   comes later, but in terms of the document itself, if she - I've

 

12   already what I said what I think about the document itself.

 

13             MR. ROSEN:  Well, I just want Your Honor to note this

 

14   because what's going to happen at this end of this proceeding is

 

15   Mr. Zlotoff is going to argue that the document, you can find

 

16   from the document what Mr. Henson's true income was.  And I

 

17   wanted to make - to make this perfectly clear, if the issue is

 

18   what she told the IRS in the document and Your Honor sees some

 

19   relevance to that, that's fine.  But I'm telling you that that's

 

20   not what's going on here.

 

21             This is - this is an attempt to get around the - the

 

22   in limine ruling, and I suspect you will hear Mr. Zlotoff argue

 

23   at the end of this case, 'Look at the tax return.  That shows

 

24   Mr. Henson's income.'  And it does not come in for the truth of

 

25   what that income is.

 

                                                           340

 

 1             MR. ZLOTOFF:  I don't even think I've asked her to

 

 2   look at the tax return.  I've asked her, I think, -

 

 3             MR. ROSEN:  What to say what it is.  I'm sorry.

 

 4             MR. ZLOTOFF:  - just ask - I know I asked her what of

 

 5   her own recollection she remembers reporting to the IRS for that

 

 6   tax return for total gross family income.

 

 7             THE WITNESS:  I guess it was somewhere around 85,- or

 

 8   90,000.

 

 9   BY MR. ZLOTOFF:

 

10   Q.  All right.  Do you remember how much you made for 1997?

 

11   A.  It wasn't very much of that.  I was working half-time and I

 

12   think it was under 10,000.

 

13             THE COURT:  How much longer do you have with this

 

14   witness approximately?

 

15             MR. ZLOTOFF:  I may - I may almost be done, Your

 

16   Honor, to tell you the truth.

 

17             THE COURT:  You wouldn't tell me anything but the

 

18   truth, would you?

 

19             MR. ZLOTOFF:  I'm going to hedge my bet here.

 

20   BY MR. ZLOTOFF:

 

21   Q.  Ms. Lucas, outside of - we've talked about the house and

 

22   we've gone over some personal possessions.  Is there - was there

 

23   anything else that you can recall that you saw in the house of

 

24   value that we haven't discussed that was in the house in or

 

25   about February of 1998?  Something tangible that had some kind

 

                                                           341

 

 1   of value that we haven't talked about.

 

 2   A.  I can't think of anything.

 

 3             MR. ZLOTOFF:  Okay.  No further questions, Your Honor.

 

 4             THE COURT:  Okay.  I just have a couple of

 

 5   housekeeping matters.  First, as you recall, I have a morning

 

 6   calendar tomorrow, so we'll start at 1:30.

 

 7             Secondly, is she the only witness you intend to

 

 8   produce?  I'm just trying to figure out where we are, and Mr.

 

 9   Rosen originally said he might need as much as four hours to

 

10   cross -

 

11             MR. ROSEN:  More.  More.

 

12             THE COURT:  Okay.  You want a hundred, Mr. Rosen?  Two

 

13   hundred?

 

14             MR. ZLOTOFF:  Is he -

 

15             MR. ROSEN:  You know, every time you - she's allowed

 

16   to testify to something, that one answer may require four or

 

17   five questions on cross.

 

18             MR. ZLOTOFF:  Does he get to use some of my hours,

 

19   Your Honor?

 

20             THE COURT:  I - I don't know.

 

21             MR. ZLOTOFF:  I hope not.

 

22             THE COURT:  Are you offering, Mr. Zlotoff?

 

23             MR. ZLOTOFF:  No, I'm not offering.

 

24             THE COURT:  Okay.  So - so - okay.  So we don't know.

 

25             Would you like a little break before we go back on?

 

                                                           342

 

 1             THE WITNESS:  Sure.

 

 2             THE COURT:  Okay.  Is 10 minutes sufficient?

 

 3             Okay.  So we'll take a 10-minute break and then we'll

 

 4   go till 4:30 and then we'll reconvene tomorrow at 1:30.

 

 5             MR. ZLOTOFF:  Can -

 

 6             MR. ROSEN:  Before we go off the record, Your Honor,

 

 7   you started to ask Mr. Zlotoff a question and I don't think you

 

 8   or I heard an answer.

 

 9             THE COURT:  He didn't give me an answer, Mr. Rosen.

 

10             MR. ROSEN:  Is this his only witness.

 

11             THE COURT:  Yeah, I know.  He didn't give me an

 

12   answer.

 

13             MR. ROSEN:  Well, Your Honor required a disclosure,

 

14   unless this comes under the category of another thing that you

 

15   don't hold attorneys to -

 

16             THE COURT:  Well, you walked in and told me you had

 

17   all these witnesses and you needed, I don't know, 20 days or

 

18   something for - then you -

 

19             MR. ROSEN:  I'm talking about a month -

 

20             THE COURT:  And then -

 

21             MR. ROSEN:  - ago Your Honor required a witness list.

 

22   This is the only witness on the list.  Mr. Zlotoff removed,

 

23   withdrew all of his other witnesses on his original list.  So if

 

24   he's got somebody that he's planning on calling despite having

 

25   told us and you that this is the only witness, I'd sure like to

 

                                                           343

 

 1   know about it.

 

 2             THE COURT:  I understand.

 

 3             MR. ZLOTOFF:  Right now I don't have anybody else that

 

 4   I have an intention of calling.  I mean I might toss and turn at

 

 5   night at 2:00 a.m. and have a brainstorm -

 

 6             THE COURT:  Call us immediately, Mr. Zlotoff, -

 

 7             MR. ZLOTOFF:  - and then - and then I'll waltz in -

 

 8   waltz in with -

 

 9             THE COURT:  - if that happens.  And we'll look forward

 

10   to the call.

 

11             Thank you.  We're in recess until five after 4:00.

 

12        (Recess taken from 3:58 p.m. to 4:12 p.m.)

 

13             THE CLERK:  Please rise.

 

14             THE COURT:  Thank you.  Please be seated.

 

15             Ms. Lucas, could you retake the stand, please?  And

 

16   you can't bring anything with you.

 

17             You're finished with this witness, Mr. Zlotoff, and

 

18   you turn the witness over?

 

19             MR. ZLOTOFF:  Yes.

 

20             THE COURT:  Thank you.

 

21             Go ahead, Mr. Rosen.

 

22                      CROSS-EXAMINATION

 

23   BY MR. ROSEN:

 

24   Q.  Ms. Lucas, you have in front of you a series of books with

 

25   exhibits including the blue-covered one, the smaller one of Mr.

 

                                                           344

 

 1   Henson - Mr. Zlotoff's exhibits, right?

 

 2   A.  Yes.

 

 3   Q.  I'm going to ask you to do me a favor.  Do not look at those

 

 4   unless I ask you to.  And if I ask you to look at a particular

 

 5   page, look just at that page and don't thumb through the folder.

 

 6   Can you do that for me, ma'am?

 

 7   A.  Yes.

 

 8   Q.  Okay.  I'd like to start with - I'd like to direct your

 

 9   attention to Exhibit A in the small folder, the third page.  The

 

10   one that says, "Schedule B, Personal Property."  Could you turn

 

11   to that, please?

 

12   A.  The third page or the one marked page 3?

 

13   Q.  It's - I believe it's the third page in the exhibit after

 

14   the tab.  It is headed, "Schedule B, Personal Property."

 

15   A.  Okay. 

 

16   Q.  Now I believe you testified in response to Mr. Zlotoff's

 

17   questions that this is the handwriting of your husband

 

18   throughout this page?

 

19   A.  Yes.

 

20   Q.  And of course you've been - you and Mr. Henson have been

 

21   married since 1982, is it?

 

22   A.  Yes.

 

23   Q.  So during the course of that time you would have had many,

 

24   many opportunities to observe your husband's handwriting?

 

25   A.  Yes.

 

                                                           345

 

 1   Q.  And it is your sworn testimony that this is your husband's

 

 2   handwriting?

 

 3   A.  It looks like it to me.

 

 4   Q.  It looks like it to you, okay.

 

 5             Now Mr. Zlotoff asked you a question that involved

 

 6   putting a comma in the wrong place.  And I - I don't remember

 

 7   which entry it was, but let's take the one that's the third one

 

 8   down as "Books."  And it looks like $5100, 5-1-O-O point zero.

 

 9             Is it your testimony that - that the second writing

 

10   character after the 5 is a comma?

 

11   A.  It - that's what it looks like to me.

 

12   Q.  And I believe you testified that your husband has this habit

 

13   of putting commas in the wrong places in numbers, right?

 

14   A.  I don't think so.  I just think it's in the wrong place

 

15   here.

 

16   Q.  Have you known your husband in the 20-odd years that you've

 

17   been married to have in other instances put commas in the wrong

 

18   place, namely between the first and the second digit in a

 

19   three-digit number?

 

20   A.  I've known him to make a lot of mistakes of different kinds.

 

21   Q.  Have you - I'll repeat my question.  Have you ever known

 

22   your husband to erroneously place a comma after the first digit

 

23   in a three-digit number?

 

24   A.  I don't remember.

 

25   Q.  Well, if you look at the top entry on that page, "Savings

 

                                                           346

 

 1   and Checking Accounts, Wells Fargo," the comma is in the right

 

 2   place, isn't it?

 

 3   A.  Apparently.

 

 4   Q.  Uh-huh.  And if you look at the second entry, "Household

 

 5   Goods and Furnishings," the comma is in the right place?

 

 6   A.  Apparently.

 

 7   Q.  Well, is it or isn't it, Mrs. Lucas?

 

 8   A.  I assume it's in the right place.

 

 9   Q.  Okay.  But it's your testimony that with respect to the next

 

10   entry, the "Books," that your husband somehow put the comma in

 

11   the wrong place?  There shouldn't be any comma at all if the

 

12   figure is $500, right?

 

13   A.  That's correct.

 

14   Q.  And, sir, - excuse me, not sir.  Ma'am, we're talking about

 

15   a gentleman, your husband, who has how many degrees?

 

16   A.  One.

 

17   Q.  College degree?

 

18   A.  Yes.

 

19   Q.  Educated?

 

20   A.  Yes.

 

21   Q.  Writes numbers all the time?

 

22   A.  Yes.  Mainly on the computer.

 

23   Q.  This isn't written on a computer, is it?

 

24   A.  No, but he is -

 

25   Q.  Okay.

 

                                                           347

 

 1   A.  - more accurate on the computer.

 

 2   Q.  All right.  Now you testified in response to Mr. Zlotoff's

 

 3   questions that you were there when your husband physically

 

 4   filled out this - this schedule; do you recall that?

 

 5   A.  I was in and out.  He came in and out of where I was working

 

 6   to show it to me.

 

 7   Q.  Okay.  And is that where - is the "where" in your answer

 

 8   your home?

 

 9   A.  Yes.

 

10   Q.  And can you recall what time of day this was?

 

11   A.  Evening.

 

12   Q.  Can you do any better than that?

 

13   A.  Late at night.

 

14   Q.  Okay.  Now where were you working in the house at that time?

 

15   A.  In the office which is an out building.

 

16   Q.  And Mr. Henson was working in some other part of the - of

 

17   the home?

 

18   A.  I believe at the dining room table.

 

19   Q.  And from time to time he would come in as he was filling out

 

20   these documents and you would have occasion to observe what he

 

21   was writing?

 

22   A.  Mostly he would ask me questions.  I didn't always see what

 

23   he was actually writing.

 

24   Q.  During any of this period of time that he was coming in and

 

25   going back and forth, did you have an occasion to observe in

 

                                                           348

 

 1   Exhibit B that he was writing on it?  Schedule B.  I'm sorry.

 

 2   A.  I don't remember the specific page.

 

 3   Q.  Do you recall whether during any of this period of time on

 

 4   this evening that he was going back and forth between the dining

 

 5   room and the office that you were working at, whether you

 

 6   observed any portion of Exhibit A, which begins with the bank- -

 

 7   the first page with the bankruptcy petition and continues on

 

 8   through a series of schedules?  Did you see any of these?

 

 9   A.  I think so.

 

10   Q.  Can you tell us which ones you saw?

 

11   A.  I don't remember.

 

12   Q.  Can you tell us any one that you saw?  Forget about all of

 

13   them.  Can you testify to any single one that you saw?

 

14   A.  I remember seeing the blacks ones, but I don't remember

 

15   seeing the ones after he filled them out.

 

16   Q.  All right.  If I can ask you to turn back to the third page,

 

17   the one that's headed "Schedule B, Personal Property"; have you

 

18   done that, ma'am?

 

19   A.  Yes.

 

20   Q.  Now with respect to the questions he was coming in and

 

21   asking you that evening, did any of them include any of the item

 

22   so Schedule B, on page 1 of Schedule B?

 

23   A.  I believe so because we consulted about how much was in - I

 

24   usually kept track of the - in fact, I always kept track of the

 

25   checkbook, so he would have asked me what the balance was and

 

                                                           349

 

 1   what checks had been written.

 

 2   Q.  That refers to the first entry respecting Wells Fargo?

 

 3   A.  Yes.

 

 4   Q.  Okay.  So if I understand your testimony, Ms. Lucas, and

 

 5   please tell me if I'm wrong, on this particular evening your

 

 6   husband is busily filling out these bankruptcy schedules,

 

 7   including Exhibit B and from time to time he comes to you when

 

 8   he asks you for information to include on it, right?

 

 9   A.  Yes.

 

10   Q.  And then he fills all of these schedules out in his own

 

11   hand?

 

12   A.  Yes.  I don't remember that he did it all in a single

 

13   evening.  I remember one evening in particular; I think it took

 

14   him several days.

 

15   Q.  Okay.  And then he filled out all of these schedules in his

 

16   own hand?

 

17   A.  Yes.

 

18   Q.  And his handwriting is familiar to you and you're swearing

 

19   under oath that's his handwriting, including on Schedule B,

 

20   right?

 

21   A.  Yes.

 

22   Q.  Okay.  Can you tell me, ma'am, what date was this?

 

23   A.  I believe it was over a series of days.  I can't remember

 

24   the specific day.

 

25   Q.  Well, when you say a series of days, what you described

 

                                                           350

 

 1   before in response to Mr. Zlotoff's question and my question

 

 2   about you being out in the office and he working at the table in

 

 3   the dining room and coming out periodically to ask you

 

 4   questions, are you telling me this happened more than one day,

 

 5   more than one evening?

 

 6   A.  Either that or there were other times when I was working in

 

 7   the house and he was in the office and we would exchange

 

 8   positions.

 

 9   Q.  Are you saying that it was more than one day on which he was

 

10   filling this out and in the course of doing so came into you and

 

11   asked you for information?

 

12   A.  Yes.

 

13   Q.  It happened - how many different days did that happen on?

 

14   A.  I don't remember, several.

 

15   Q.  Can you tell me any of the dates?

 

16   A.  I think it was January, February '98.

 

17   Q.  I see.  Is that the best you could do for us, ma'am - ma'am,

 

18   sometime in January or February of '98?

 

19   A.  Without looking at the dates on the - on the -

 

20   Q.  Um-hum.  And if I understand correctly then, how many days -

 

21   different days were there that he was working on filling out

 

22   this schedule and periodically coming to you, whether you were

 

23   in the dining room or you were in the office, and getting

 

24   information from you to include on these schedules?  How many

 

25   different days?

 

                                                           351

 

 1   A.  Three or four.

 

 2   Q.  Were they in the same week or different weeks?

 

 3   A.  The same week, I think, unless it was over a weekend.

 

 4   Q.  Uh-huh.  And what - do you recall what day of this week this

 

 5   started on?

 

 6   A.  No.

 

 7   Q.  Well, was it on the weekend, was it during the week?  How

 

 8   about just that.  Help me out.  Was it a workday or was it a

 

 9   weekend?

 

10   A.  I seem to remember it starting on a weekday.

 

11   Q.  And continued for four - about four consecutive days?

 

12   A.  I don't remember the days even being consecutive.

 

13   Q.  Were they within - were they within a one-week period?

 

14   A.  I believe so.

 

15   Q.  Okay.  If I can ask you to turn to the first page of the

 

16   exhibit, there is handwriting on this exhibit.  The exhibit is

 

17   labeled "Summary of Schedules."  You see that?

 

18             THE COURT:  Are we -

 

19             THE WITNESS:  Yes.

 

20             THE COURT:  Okay.

 

21   BY MR. ROSEN:

 

22   Q.  And is all of the handwriting including the numbers written

 

23   on that one, on that page, to your testimony, based on your 20

 

24   years over having observed your husband's handwriting, is that

 

25   all his?

 

                                                           352

 

 1   A.  I believe so.  His handwriting changed.  It looks to me as

 

 2   though he is being very careful here.  I mean it's not his usual

 

 3   scribbling.

 

 4   Q.  And you'll notice of the four dollar amounts appearing on

 

 5   this page, the comma's not in the wrong place on any one of

 

 6   them, is it?

 

 7             THE COURT:  I'm - I've lost you.  Can you tell me

 

 8   exactly what page you're on?

 

 9             MR. ROSEN:  The first page of Exhibit A, Your Honor.

 

10             THE COURT:  That's what I was on.

 

11             MR. ROSEN:  Headed, "Summary of Schedules."

 

12             THE COURT:  Okay.  I'm with you.

 

13   BY MR. ROSEN:

 

14   Q.  The one that's headed, by the way, "Central District of

 

15   California."  So you notice there are four different dollar

 

16   amounts there, each over a thousand dollars, and the comma is in

 

17   the right place on every one, isn't it?

 

18   A.  Apparently.

 

19   Q.  Yeah.  And turn to the second page, ma'am, and I will ask

 

20   you the same question as to this page:  Is this the entirety of

 

21   - in your husband's hand, words and numbers?

 

22   A.  I believe so.

 

23   Q.  And the third page, you've already testified to that, right?

 

24   Everything on the third page is your husband's hand?

 

25   A.  As far as I can tell.

 

                                                           353

 

 1   Q.  And turn to the fourth page.  Is everything on there your

 

 2   husband's hand, numbers and words?

 

 3   A.  Yes.

 

 4   Q.  And you'll notice there are no commas misplaced on this

 

 5   page, right?

 

 6   A.  There's just one comma, yes, it looks to be in the right

 

 7   place -

 

 8   Q.  And it's in the right place?  Okay.

 

 9             Let's turn to the next page.

 

10             THE COURT:  For the record, could you identify the

 

11   heading on the page as we go through so it's -

 

12             MR. ROSEN:  Sure.

 

13             THE COURT:  - clear what we're doing?

 

14             MR. ROSEN:  Page 3 is Schedule B, Personal Property.

 

15   Page 4 of the exhibit is Schedule B, Personal Property

 

16   Continuation Sheet.

 

17             I'm now on the next page which is Schedule B, Personal

 

18   Property Continuation Sheet.  It has a Bates number on the

 

19   bottom of 336.

 

20   BY MR. ROSEN:

 

21   Q.  Okay.  Is this also entirely in your husband's hand?

 

22   A.  Yes.

 

23   Q.  Okay.  And the next page, "Schedule C, Property Claimed as

 

24   Exempt."

 

25   A.  Yes.

 

                                                           354

 

 1   Q.  So all of the - all of the entries on this one are words and

 

 2   numbers in your husband's hand?

 

 3   A.  They appear to be, yes.

 

 4   Q.  And the next one, "Schedule D, Creditors Holding Secured

 

 5   Claims," is that all in your husband's hand, both words and

 

 6   numbers?

 

 7   A.  Yes.

 

 8   Q.  And the next one is "Schedule E," not much on there, but

 

 9   there is something.  Is that all in your husband's hand?

 

10   A.  Yes.

 

11   Q.  And the next one is "Schedule E, Creditors Holding Unsecured

 

12   Priority Claims," is that all in your husband's hand?

 

13   A.  Yes.

 

14   Q.  And the next one is "Schedule F," all the entries on that,

 

15   handwritten entries, in your husband's hand?

 

16   A.  Yes.

 

17   Q.  The next one is "Schedule G," that's all in your husband's

 

18   hand, all of the entries?

 

19   A.  Yes.

 

20   Q.  The next one is "Schedule H," that's all in your husband's

 

21   hand?

 

22   A.  Yes.

 

23   Q.  The next is "Schedule I," the same question?

 

24   A.  Looks like it to me.

 

25   Q.  Okay.  Next is "Declaration Concerning Debtor's Schedules."

 

                                                           355

 

 1   Is that all in your husband's hand?

 

 2   A.  Yes.

 

 3   Q.  Take a moment, so we don't have to go through this page by

 

 4   page, just look through the remainder of the documents, the

 

 5   pages that constitute Exhibit A, at the end of which I will ask

 

 6   you if they're all in your husband's hand or if anybody other

 

 7   than your husband has made any entry on any of these pages,

 

 8   whether it be words or numbers.

 

 9   A.  (Pause.)  It appears to me to be - it's - it's a little

 

10   strange.

 

11   Q.  Will you explain what you mean by it's a little strange?

 

12   A.  Well, just that the - I'm looking at the - the Bates number

 

13   346, the number at the top of the page is more typical of his

 

14   handwriting.  I - and - and the federal taxes and so on.  It's

 

15   just the right of it looks a little labored or possibly as

 

16   though he had put things down in pencil and then gone over them

 

17   laboriously in pen.

 

18   Q.  Okay.  Other than that one exception is the answer to my

 

19   question then that the entirety of the remaining pages of this

 

20   document are all in your husband's hand?

 

21   A.  Yes.

 

22   Q.  Now, Ms. Lucas, you have sworn under oath that based on 20

 

23   years of knowing your husband's handwriting that all of the

 

24   entries on these - on this document are your husband's.  You

 

25   understand you're swearing to that under oath?

 

 &nbs