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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 IV
Debtor. ) Pages 493 to 725
)
)
) Wednesday, October 2, 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
For Witness Lucas: Howard Hibbard, Attorney at Law
Electronic Court United States Bankruptcy Court
Recorder: Clerk of the Court
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
Debtor's Objections to Creditor's Exhibits: page 495
Court's Decision on Debtor's Objections and
Creditor's Exhibits: page 506
Agreements of the Parties: page 595
Witnesses:
Direct Cross Redirect Recross
Victoria Arel Lucas
By Mr. Rosen:
(Resumed): 540
605
By Mr. Hibbard: 689
By Mr. Zlotoff: 689
By Mr. Rosen: 709
Exhibits: Received in Evidence
Creditor's Exhibit 290: page 523
Creditor's Exhibit 292: page 671
Debtor's Exhibit R: page 534
Debtor's Exhibit S: page 535
Debtor's Exhibit O: page 536
Debtor's Exhibit P: page 536
Debtor's Exhibit Q: page 537
495
1 Wednesday, October 2, 2002 9:13 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 session.
6 THE COURT: Good morning, ladies and gentlemen. Sorry
7 for the brief delay. I had something I had to take care of.
8 This is the case of Keith Henson.
9 May I have appearances of counsel?
10 MR. ZLOTOFF: Stan Zlotoff for debtor.
11 MR. ROSEN: For Religious Technology Center, Samuel D.
12 Rosen, Paul, Hastings, Janofsky and Walker.
13 MS. KOBRIN: Also for Religious Technology Center,
14 Helena Kobrin, Moxon and Kobrin.
15 MS. SEID: Elaine Seid of McFarland, Sprinkles and
16 Thomas, also for Religious Technology Center.
17 THE COURT: Good morning.
18 Are you ready to present your argument?
19 MR. ZLOTOFF: Yes, Your Honor. I think the easiest
20 way to do this would be if you - if you have a copy of Mr.
21 Rosen's brief.
22 THE COURT: I do.
23 MR. ZLOTOFF: Okay. And then we have certain
24 headings. And so the first headings is at page 6. And actually
25 the first exhibits of interest are on page 7. There's nothing
496
1 that's really stated before page 7 that's of any pertinence at
2 all to the exhibits.
3 On page 7, these are - these are all objectionable
4 with the exception of 168. They're - all of these references,
5 that is Exhibits 121, 124, 140, 142, 159, 230, 231, 232, 266,
6 267, 268, those of the ones that I had objected to. And all of
7 those represent postings at one time or another by Mr. Henson.
8 And you can gather from certain quotations set forth here the
9 general tenor of those postings.
10 For example 140: The excerpt is "Killing the
11 organization off entirely is the best way to change the future
12 of Scientology."
13 Number 230, Exhibit 230: "Activities of Henson and
14 his cronies will only end when Scientology is ground into the
15 dirt or spent its last dollar on lawyers."
16 266: "We are out to break the COS."
17 268: "The annihilation of COS and all its fronts is a
18 worthy goal."
19 All those to my mind are free speech. I mean they
20 might be cartoonish. To my mind it's a bit like the Wiley
21 Coyote complaining that the Roadrunner - or I guess the reverse
22 - the Roadrunner complaining the Wiley Coyote's after him, but
23 it's cartoonish.
24 I mean to me it makes no difference; except the only
25 way it could possibly be relevant is if these are supposed to be
497
1 bad acts and based upon these bad somehow we're supposed to
2 infer some kind of what? Bad faith Chapter 13 character that is
3 somehow relevant to the issue of confirmation.
4 In other words, none of these postings have anything
5 to do with the debt that RTC holds. None of them have to do
6 with any kind of budgetary analysis. None of them have to do
7 with any net worth. They're just ramblings by somebody on the
8 Internet.
9 168 was also objectionable, but that's not a posting.
10 That's the protective order. And again it was a protective
11 order entered in either the District Court case or related
12 District Court case. And the protective order was granted, I
13 believe, to exclude Mr. Henson from the deposition because of
14 some alleged threats that someone had perceived had been made.
15 And again to the extent it has any interest it's to
16 approve an alleged bad act or conduct on behalf of Henson at
17 some time in the past, utterly unrelated to either the debt
18 that's before the Court or anything having to do with the
19 Chapter 13. And it's totally irrelevant for that purpose.
20 THE COURT: Why don't you complete your argument as to
21 all the exhibits?
22 MR. ZLOTOFF: Okay. I'm going forward.
23 Number 257. If you down the page under the next
24 heading, "Contempt and threatened contempts." 257 is just
25 another internet posting, which to me is nothing other than free
498
1 speech and not objectionable for the same reasons I indicated.
2 I didn't have - a lot of these I didn't have any
3 objection to. Can I just state the ones I have objection to?
4 THE COURT: Sure.
5 MR. ZLOTOFF: Because they pretty much wrote out a
6 trial brief rather than just limiting their objections to the
7 ones that I had a problem with.
8 Number 22. At the bottom, Exhibit 22, I withdraw - I
9 withdraw any objection for that.
10 THE COURT: What page of their brief is Exhibit 22?
11 MR. ZLOTOFF: I'm sorry. What page of their brief?
12 It's page 7.
13 THE COURT: Yeah. You're asking me to follow their
14 brief, and I'm trying -
15 MR. ZLOTOFF: Yeah, I'm sorry.
16 THE COURT: - trying to follow.
17 MR. ZLOTOFF: That's page 7 at the bottom.
18 THE COURT: Oh, yes, I see it. Excuse me a second.
19 Ms. Lucas, I noticed that you just came into the
20 courtroom. We are going to be dealing with these legal issues
21 about the exhibits for at least another 20, 25 minutes. So if
22 you need to make calls or do anything, we can come out in the
23 hall and find you.
24 MR. ROSEN: Your Honor, may I refer you to the back of
25 the brief which has the equivalent of the table of authorities -
499
1 THE COURT: You need your mic, to be at your mic.
2 MR. ROSEN: - which has the equivalent of a table of
3 authorities, functionally. So, for example, on the question you
4 just asked, obviously if after - when you consider these in your
5 chambers, if you have any questions of the kind that was just
6 asked, you'll see that Exhibit Number 22 appears on page 7.
7 That's what the table in the back is for. So Your Honor can
8 locate it in the brief.
9 MR. ZLOTOFF: Your Honor, actually you don't even know
10 the ones that I made objection to. So it's - why don't I just
11 not even mention 22 and you just assume that there's no issue on
12 that. I think that would be easiest way to proceed.
13 THE COURT: I do know from a footnote.
14 MR. ZLOTOFF: Oh, that's right, you're right. Okay.
15 I withdraw any objection to 22.
16 On the next page, page 8, Exhibit 80 - I'm sorry
17 Exhibit 25 is withdrawn. No objection as to 25.
18 Exhibit 80, Exhibit 269, 270, 274 are still
19 objectionable on relevance grounds. They're postings. And
20 again to me they just evidence free speech. Or if they suggest
21 bad conduct, it's irrelevant to prove some kind of character
22 that's wrongful with regard to Chapter 13.
23 Exhibit 274. I have no objection to 274. I'm not
24 sure whether that was one of the ones I objected to or not.
25 MR. ROSEN: Yeah.
500
1 MR. ZLOTOFF: It was? I withdraw objection to 274.
2 Then the next batch is Number 3 on page 8: "Henson's
3 repeated efforts to derail the copyright trial." I don't have
4 any objections in that category - in that - under that heading.
5 So either I didn't make objections as to the ones indicated or I
6 withdraw whatever objections I may have had.
7 Is that clear, Your Honor?
8 THE COURT: I guess so. It's 9 and 4.
9 MR. ROSEN: And 6, Judge.
10 THE COURT: Yes.
11 MR. ROSEN: He didn't object to any of those. And
12 also 7, I see. It's on line 14 under - in that heading. No
13 objection to that one either. And 8 on line 16, no objection to
14 that one either.
15 MR. ZLOTOFF: The next heading, Number 4, on page 8.
16 No objections in that category. So I did have an objection to
17 256 earlier; that's withdrawn. And the other exhibits indicate
18 I never objected to in the first place.
19 The next heading on page 9 is Heading Number 5. And
20 this gets into - the first paragraph Exhibits 5 and 258 are
21 exhibits pertaining to other trials or orders made in other
22 cases. And to me for that reason they lack relevance to this
23 particular case.
24 Exhibit 96 is a posting that to me again is nothing
25 other than free speech posting and doesn't suggest one thing or
501
1 the other. And for that reason it is irrelevant, as with the
2 next paragraph on page 9. So that would include Exhibits 94,
3 93, 81 and Exhibits 147 to 158. They're all free speech
4 postings. And, you know, he's talking about the amusement value
5 of the litigation and explaining his picketing activities and so
6 forth. And it's, you know, it's - it's irrelevant. I don't see
7 any point to - it has to the trial.
8 The last paragraph are a series of exhibits that
9 pertain to the criminal trial. And, remember, the criminal
10 trial happened postpetition. I think a couple of years
11 postpetition, regarding postpetition conduct. Mr. Henson at
12 some kind of a Scientology or RTC headquarters, I think, in
13 Riverside. It's irrelevant.
14 I don't understand why any kind of - it was a
15 misdemeanor conviction, as I recall. So, in the first place, I
16 don't think misdemeanor convictions are admissible. It's
17 irrelevant because it doesn't bear on either the debt or assets
18 or any pertinent confirmation standard. To the extent that it
19 shows anything that RTC is trying to squeeze into a relevancy
20 category, it's that he was a bad person, he committed a bad act,
21 therefore he again has some kind of character flaw that carries
22 into Chapter 13. And so he must be doing bad things while in
23 Chapter 13. To me it just doesn't follow.
24 And you - as a matter of law, as I recall - Mr. Rosen
25 I'm sure will correct me on my evidence, but I don't think you
502
1 can prove character from an instance of bad conduct.
2 So, anyway, we were talking here about again the last
3 paragraph on page 9. This will be Exhibit 183, misdemeanor
4 complaint; 129 a docket sheet; 260, again having to do with the
5 criminal trial. And also 134. I'm on page 10 now.
6 THE COURT: Um-hum.
7 MR. ZLOTOFF: Exhibits 133, 134, 135, 141, they're all
8 postings. And to me, looking at them without any narrative
9 supplied by RTC, they're just postings, again free speech. RTC
10 tries to tie them in by saying, 'Well, they were part of the
11 criminal trial.' And again I say so what. They were a part of
12 the criminal trial, not relevant.
13 On that line, line 8, page 10, 164 to 167 and 261 to
14 262. Again I read them and I - I just see free speech. I don't
15 even see context to them. I mean they're just - some of are
16 just two sentences long that don't have any significance to me
17 at all - except RTC supplies a context and says they were used
18 in the criminal trial. And I say, okay, if they were used in a
19 criminal trial, so what, they're still irrelevant.
20 The next line down, 273, is the dismissal of his
21 criminal appeal. And I say so what. It's irrelevant. I don't
22 care about the criminal appeal or that it was dismissed based on
23 the fugitive disentitlement doctrine. We've already talked
24 about fugitive disentitlement in the Degan case and how that's
25 not - it's not relevant in our circumstance here.
503
1 The next paragraph, again Exhibit 250. It's something
2 from the criminal case. Not relevant for that reason.
3 Exhibit 249, the next sentence again, that's from the
4 criminal case and not relevant to this proceeding.
5 The next paragraph at line 15 of page 10, Exhibit 114
6 pertains to a tax case that Mr. Henson filed against RTC. It
7 may be interesting, but I don't see the relevance at all. I
8 mean certainly someone has got a constitutional right to file a
9 lawsuit, rightly or wrongly. I don't see what it proves one way
10 or the other.
11 Exhibit 233, the same thing. It has to do with R- -
12 with Henson's action against the RTC.
13 The next batch is headed Number 6, "Inaccurate
14 Schedules." I have no objection to anything in that category -
15 I'm sorry - on that page. On page 10, on that category, I don't
16 have any objection. In fact, I don't have anything in that
17 whole heading except for Number - this is on line 6 of page 11,
18 215 and 216 just appear to be postings without free - again free
19 speech postings without any particular context that makes any
20 significance, so far as I can see.
21 But except for those two, the remainder of the
22 exhibits noted, if I had an objection I withdraw the objection,
23 otherwise I didn't have objection. And RTC just chose to ramble
24 on about the - about these exhibits.
25 THE COURT: Okay.
504
1 MR. ZLOTOFF: Turning to page 12, the next heading is
2 Number 7. I have no objection to anything - any evidence or any
3 exhibit mentioned in that heading, nor did I ever.
4 Down the page on heading 8, there's nothing on page
5 12.
6 On page 13, there's a footnote, which is footnote 11,
7 in which is noted Exhibit 95. I withdraw the objection I had to
8 Exhibit 95. I didn't - I don't think I ever had an objection to
9 Exhibit 98 mentioned right next to it. Nor did I to the other
10 exhibits noted.
11 Back to the top of the page on page 13 -
12 THE COURT: 14?
13 MR. ROSEN: No, page 13, the top of the page 13.
14 Again, we're on -
15 THE COURT: I see. Yeah, because you went to the
16 footnote.
17 MR. ROSEN: - Heading 8. Exhibits 125 and 126 pertain
18 to model plans. And to me those are irrelevant. And they're
19 irrelevant because I could take a model plan, I could cross out
20 lines and add lines. And, you know what, I'd end up with our
21 model plan. And what difference does it make? What does it
22 prove? What does it show?
23 You could do anything with the plan and the issue is
24 what's in a plan and was it objected to? And that's all. I
25 mean the fact that somebody uses one form or another doesn't
505
1 mean you can't add or delete to a model plan. And so the issue
2 is really what's before the Court; and the others are utterly
3 irrelevant. They don't prove anything. The other exhibits
4 noted I had no objection to, in any event.
5 Going to the next heading, Number 9, "Misconduct." No
6 objections to anything in that batch. I had objected to 222 and
7 224 to 226. I withdraw my objections to those. The others
8 noted, I don't think I had any objection to, to begin with.
9 Page 14, the next heading, Heading 10. No objections.
10 Again, I don't think I had any to begin with in that - in that
11 series. Oh, I'm sorry, except for again at the bottom, 215 and
12 216. I previously noted as they were in another - another
13 heading. So except for Exhibits 215 and 216, which are noted at
14 the bottom of page 14, I don't have any objection to any of the
15 other exhibits noted. And the 215 and 216 were postings,
16 Internet postings which I contend are just free speech.
17 Page 15, Heading 11, I have no objections to anything
18 in that. If I objected to 272, I withdraw that. The others I
19 don't think I objected to, to begin with.
20 Heading Number 12, I had no objection, to begin with,
21 with anything in that column.
22 Heading 13 on page 15, the last one. Again, all of
23 these indicated here have to do with - I think almost all of -
24 are more recent postings. And to me they're just free speech
25 postings. We're talking about 2- - Exhibit 253, 254, 188, 238,
506
1 251, 255, and 265. And those are all again free speech postings
2 and not relevant. And that's...
3 THE COURT: I know you are ready to argue, Mr. Rosen.
4 Are you finished, Mr. Zlotoff?
5 MR. ZLOTOFF: I think so, yes.
6 THE COURT: But I intended to admit almost all of
7 these documents. Maybe you ought to hear my decision before you
8 make an argument.
9 Essentially all of the exhibits - and I'm not able to
10 switch back and forth between what was in the footnote, what
11 RTC's brief says, and what you just said. So I'm going to have
12 to do this more broad brush. But essentially they're almost all
13 admitted.
14 I'm faced with the totality-of-the-circumstances test
15 which I have to apply. And that includes Mr. Henson's alleged
16 motive for filing bankruptcy. RTC says it's not to reorganize
17 but to continue to harass the creditor and to try to destroy the
18 creditor by stopping the District Court trial, and running up
19 the creditor's expenses, et cetera, et cetera, is alleged
20 manipulation of the bankruptcy law to suit his own alleged
21 purposes of destroying the church, his alleged overall disregard
22 of the law.
23 And so essentially all of this comes in under the
24 totality-of-the-circumstances test, both the prepetition conduct
25 and the postpetition conduct, under the caselaw.
507
1 Mr. Zlotoff has alleged that certain, especially
2 postings, but perhaps other documents are free speech. And I
3 make no ruling on Mr. Henson's free speech. The fact that it
4 may be - Mr. Henson may be entitled under the free speech
5 doctrine to write something really is not what I'm focusing on.
6 What I'm focusing on is whether or not, under the
7 totality-of-circumstances test, a statement, a posting, a
8 writing, essentially any - any of these documents come in under
9 the totality-of-the-circumstances test, and I think that they
10 do.
11 There - and I can go through some of these, but
12 certainly what happened vis-a-vis the criminal trial, what
13 happened in these postings, and what happened in the District
14 Court are admissible under the totality-of-the-circumstances
15 test. The weight is a different matter, but I'm not going to
16 the weight at this point. I'm only talking about what's
17 admissible.
18 Exhibits 125 and 126 are model plans from other
19 districts and information regarding those model plans. Those
20 aren't relevant to whether the debtor acted in bad faith by
21 using the model plan that he's required to use in this district.
22 And efforts to avoid a lien as an impairment of a homestead
23 objection - homestead exemption, which the Bankruptcy Code
24 specifically permits, is not relevant to whether bankruptcy was
25 filed in bad faith. So those don't come in. In fact, there's
508
1 no knowledge that Mr. Henson even knew about the model plans in
2 any other district.
3 MR. ROSEN: What exhibit are you referring to?
4 THE COURT: I think they're 125 and 126.
5 MR. ROSEN: No, I know those as the model plans. But
6 you then said efforts to avoid a lien. Do you have an exhibit
7 that you are referring to, Your Honor?
8 THE COURT: I don't have a number. I think it's 122
9 and 187, and the claims filed by the creditor, 194 and 195. But
10 I believe 122 and 187 involve efforts to avoid the creditor's
11 lien.
12 MR. ROSEN: I don't - I don't believe so, Judge.
13 THE COURT: Well, we'll check.
14 MR. ROSEN: Okay.
15 THE COURT: We'll check. But, in any event, the - and
16 again, Mr. Zlotoff, I'm not able to go through all of the ones
17 that you've withdrawn. So I may discuss some of the ones that
18 you've withdrawn an objection to, or which were not listed in
19 your footnote but were referred to in RTC's brief. But under
20 the time I did the best that could.
21 The - Exhibit 275, page - is submitted to show the
22 debtor allegedly knew before publishing the creditor's work,
23 that it was copyrighted, and someone else had been enjoined from
24 publishing it, but went ahead and published it anyway.
25 Exhibit 1 is a de- - cease-and-desist letter to the
509
1 debtor. 2 is his refusal to stop. 99 is the District Court
2 summary judgment for the creditor. 3 is the June '97 permanent
3 injunction.
4 The District Court trial was May 5th, '98. Exhibit 20
5 are trial excerpts of a tape played for the jury. 213 is a tape
6 and transcript of excerpts played.
7 21 is debtor's answer to his attorney's question as to
8 whether he had been deterred from doing it again, "At least I
9 wouldn't do it openly."
10 36 is jury instruction regarding willfulness. 18 is
11 the jury's special verdict finding, willfulness. 173 is the
12 District Court judgment. 115 is the Ninth Circuit order
13 affirming.
14 100 is the Ninth Circuit order awarding creditor fees
15 for deterrence purposes.
16 Exhibits 112, 113, 116, 121, 124, 140, 142, 159, 168,
17 184, 213, 229, 230, 231, 232, 266, 267, 268, 275, and 279 are
18 statements by the debtor introduced to demonstrate his desire to
19 destroy the Scientology religion by various means.
20 107, 257, and 10 are debtor's alleged threats to
21 violate the injunction. Exhibit 109 is the District Court's
22 order expanding the injunction.
23 210 is this Court's order of relief from stay to allow
24 the creditor to go to state court regarding debtor's alleged
25 contempt of the injunction.
510
1 12 is the District Court order granting emergency
2 relief to stop threatened violation. 111 are findings of fact
3 by the District Court regarding contempt.
4 22 is the District Court contempt order. 25 is the
5 Ninth Circuit Court order affirming. 80 is debtor's statement
6 blaming other parties for those orders.
7 269, 270, and 274 are recent statements by the debtor
8 allegedly showing violation of injunction and intent to drive up
9 creditor's cost to enforce.
10 Exhibit 4 allegedly shows the District Court trial was
11 originally set for 12-97. And the debtor originally dated his
12 bankruptcy petition 12-1-97.
13 Exhibit 4 is the District Court's continuation of
14 trial due to its own schedule. Exhibit 6, 7, and 8 are debtor's
15 attempts to continue the trial again. 9 is the bankruptcy
16 petition filed after the continued efforts - the efforts to
17 continue failed.
18 256, the debtor's Bankruptcy Court notice to the
19 District Court within a very short time after filing bankruptcy.
20 209 is the Bankruptcy Court's March 23, 1998 relief-from-stay
21 order permitting the District Court to proceed.
22 211 is the debtor's notice of voluntary dismissal of
23 the bankruptcy case on March 24, '98.
24 5 and 28 - 5 and 258 are restraining orders issued
25 October '97 and December '97 to prevent the debtor from
511
1 harassing and picketing.
2 96 and 91 are the debtor's expression of appreciation
3 to those who supported picketing, and requests for additional
4 help.
5 94 and 93 are debtor's statements about amusing
6 himself and others at creditor's expense.
7 Exhibits 279 is his deposition about his picketing.
8 Exhibits 147 through 158 are statements by the debtor about his
9 picketing.
10 Exhibit 183 is a misdemeanor complaint which, of
11 course, isn't for the truth, but is relevant. 129 is a docket
12 sheet from that criminal case.
13 269 is part of the trial transcript from that case of
14 what the debtor did and why he did it. Exhibits 133, 34, 35 and
15 141, and 164 through 167 and 261 and 262 are published
16 statements by the debtor that were exhibits at the criminal
17 trial.
18 273 is a dismissal of the debtor's appeal from
19 conviction. 250 and 264 showed jury conviction of a hate crime.
20 249 shows sentencing.
21 114 is the District Court's dismissal of the debtor's
22 suit against IRS seeking to revoke Scientology Church tax-exempt
23 status. 233 is the Ninth Circuit's order affirming.
24 Exhibit 16 is the debtor's original schedules. 2 - 27
25 are amended schedules. Other information - other exhibits
512
1 attack the information in the schedules.
2 Exhibit 16 and 277 allegedly show that the house - the
3 value of the house is the purchase price. 91 is an appraisal
4 purporting to show it to be worth less - I'm sorry - more on the
5 date of bankruptcy.
6 81 through 83 and 93, 94, 96, 189, 215, 216, 276, 277,
7 278, and 279 are statements by the debtor that he's received
8 money from others that allegedly were not scheduled as assets.
9 279 and 179 allegedly show that the daughter's school
10 expenses are much higher than scheduled, which - and which were
11 paid by a credit card.
12 98, 278 - 98 and 278 are offered to show that the
13 scheduled phone expense is 50 percent of what it really is.
14 Exhibits 35, 47, 56, 67, 177, 178, 191, 286, 278
15 allegedly show that he denied having a life insurance policy
16 with cash value.
17 Exhibit 276 is allegedly his denial that he owns
18 artwork, but Exhibit 89, 160, 234 allegedly show that he does.
19 Exhibit 221, 89 show - allegedly show that he owns
20 stock bought shortly prepetition that isn't scheduled. 276 and
21 279 are his admissions that he had a credit card or credit cards
22 when he filed - or credit card. And allegedly shows that he
23 purposely didn't disclose it.
24 Exhibit 278 and 279 are tax returns, allegedly without
25 certain information. 171 is his effort to explain.
513
1 174 is an application to the District Court for pauper
2 status. 277 is - allegedly is Mr. Henson's admission that the
3 information - that it isn't correct.
4 Exhibit 187 shows the debtor suffered to sell his
5 house without marketing it, without notice to creditors, the
6 trustee, or the Court. That's what it's intended to show.
7 Exhibit 18, 28, 92 are proposed plans allegedly
8 offering nothing to the creditor after administrative expenses
9 are provided for.
10 122 and 187 are the ones, I believe - and we'll check
11 those - reflecting efforts to avoid the creditor's lien under
12 the Bankruptcy Code. And we should check those.
13 And then I talked about 125 and 126.
14 The debtor's conduct in discovery is part of the
15 circumstances alleged to show his bad faith. And that's 13, 14,
16 29, 35, 37, 39 to 44, 46 to 48, 53, 59, 61, 62, 64, 65, 66, 67,
17 68, 69, 72, 73, 75, 86, 222, 224, 225, 226, 276, 277, 278, 279,
18 30, 31, 32, 33, 34, 59, 61, 78, 97, 122.
19 He allegedly admitted he destroyed relevant records
20 rather than produce them in discovery and/or to the IRS, Exhibit
21 279, 58, 60, 61, 75, 81, 83, 93, 94, 96, 215, 216, 279.
22 He allegedly caused himself to be under unemployed,
23 and that's relevant, 84, 275, 272, 278, 279, 76, 77, 278.
24 279 shows the debtor making what is characterized by
25 the creditor as an extortionate - extortionate demand on the
514
1 creditor.
2 253 is debtor's statement from Canada regarding
3 whether he will return or not.
4 254 is his statement complaining about his criminal
5 case.
6 188 is his statement about being in Canada.
7 238 is a letter saying he won't appear for sentencing.
8 251 shows that he didn't appear.
9 255 and 265 are his statement that he was arrested in
10 Canada for having entered without revealing his fugitive status.
11 And they are introduced to attempt to show that he continues to
12 mock the law.
13 Now let's turned to 125 and 126 -
14 MR. ROSEN: Your Honor, I think I can save you some
15 time. The first two that you are not - I gather from your
16 comments, are not admitting because you don't believe they're
17 relevant, are 125 and 126, those are the model plans. Let me -
18 those are a matter of public record. But let me just -
19 THE COURT: Sure.
20 MR. ROSEN: - tell you why they were offered.
21 It was our recollection that Your Honor, not in a
22 ruling but in rumination, in comments from the bench a long time
23 ago in this case, had indicated that under the model plan of
24 this district the valuation date for the house, which under the
25 statute is the effective date of the plan, is the date of the
515
1 filing of the petition. Your Honor is going to have to decide
2 that issue at some point. I don't know necessarily in this one
3 or in the next motion.
4 But assuming Your Honor needs to decide, we put this
5 in only to show the model plans of other districts in the
6 following way: If Your Honor were to write a decision which
7 says the model plan of this district says this and therefore I'm
8 going to follow it, we would want the record to show that the
9 model plans of other districts don't follow it. If Your Honor
10 has no intention of doing that, and saying as you just did, the
11 model plan is a model plan, and both debtors and the Court are
12 free to ignore it, to follow it, do whatever they want, then the
13 other plans in the other districts are indeed irrelevant.
14 But we put it in only because it appeared to us that
15 Your Honor's nonbinding comments, if you will, of observations
16 on the subject in the past, were that this is what your - the
17 model plan in this district says.
18 So with that understanding, if Your Honor wants to
19 exclude them, they're matters of public record anyway. But
20 that's the only purpose that we put them in for. That's 125 and
21 126.
22 Respecting 122, Your Honor, it's a transcript -
23 THE COURT: I need to get it before you start talking.
24 (Pause in the proceedings.)
25 THE COURT: Had you objected to 122 and 187?
516
1 MR. ROSEN: He objected to neither.
2 THE COURT: Okay. So there's no issue, they come in.
3 MR. ROSEN: Okay. Takes care
4 Okay. So, if I understand correctly, that all of our
5 exhibits are now -
6 THE COURT: Except the model plan.
7 MR. ROSEN: - received, except for the 125 and 126.
8 (Creditor's counsel confer briefly off record.)
9 MR. ROSEN: And, Your Honor, if I may, we have one
10 more exhibit. May I hand up what's been marked as Plaintiff's
11 Exhibit 290? And I will have only a brief word on this exhibit.
12 THE COURT: Do we have the whole exhibit, the whole
13 deposition here?
14 MR. ROSEN: No. No.
15 THE COURT: Well, so if I want to read this in context
16 how do I do that?
17 MR. ROSEN: You can't.
18 Exhibit 290 and the purpose of offering it is as
19 follows. Yesterday Mr. Zlotoff suggested to the Court that the
20 bankruptcy schedules, Exhibit - Schedule B, "A personal
21 property," et cetera, that Ms. Lucas had testified Mr. Henson
22 was frantically filling out and running to her for information,
23 were not necessarily the same one as was filed. And that there
24 was some bankruptcy schedules prepared by Mr. Henson earlier in
25 December. That was the representation by counsel.
517
1 This is the second time in this relatively short trial
2 we have had to deal with a representation by counsel that has no
3 basis in fact and the second time we've had to put in an exhibit
4 to disprove it.
5 This is the witness' testimony. There were no papers
6 filed in December. There were no papers prepared in December.
7 And the only thing which he has testified, he prepared in
8 December, is the petition itself, the two pages. And it bears
9 the date, December 1, which he then put in his pocket after
10 Judge Whyte postponed the trial. And then re- - and then filed
11 it in February.
12 So this is second time I've had to spend time
13 responding to these statements by opposing counsel that have no
14 basis in fact. I would hope that in the remainder of this
15 trial, if counsel is going to represent something as a fact,
16 that he has some evidence to support it.
17 THE COURT: Do you object to this document?
18 MR. ZLOTOFF: Right. I object. It's not complete,
19 not a complete transcript. I - you know, when I wanted to admit
20 an exhibit the other day about a transcript that was actually in
21 the court file, I got an objection that, well, you have to pay
22 50 cents a copy and copy all hundred pages, or whatever, because
23 it's not in context, even though it was plainly clear what I was
24 trying to admit - admit it for; and the pith of what I wanted
25 was in the two pages. So I'm going to object for the same
518
1 reason.
2 MR. ROSEN: Counsel mis- - misunderstands the
3 objection. When he tried to offer a page, I believe it was page
4 52 from the hearing before Your Honor in July of '98, to
5 represent to the Court that Your Honor had made the
6 reinstatement of the bankruptcy petition retroactive. I said
7 that representation is false.
8 And in fact we have, already marked in our exhibits,
9 the relevant portions of the transcript of that very hearing, in
10 which Your Honor said exactly to the contrary. I didn't object
11 on the grounds that he wasn't putting the whole thing in. I
12 objected on the grounds that he was misrepresenting what
13 happened at that hearing by offering a one snippet out of
14 context. And I approved it by putting in the portions of that
15 transcript which show that that's not what Your Honor said.
16 There is no grounds for objection, as was just stated
17 and as Your Honor had inquired, that you have to put in the
18 whole transcript. Never has.
19 MR. ZLOTOFF: Well, Your Honor, here's the problem -
20 MR. ROSEN: There's no basis.
21 THE COURT: Let me tell you what I think.
22 MR. ROSEN: I'm sorry. He interrupted me.
23 THE COURT: I thought you were finished. Go ahead.
24 MR. ROSEN: I forgot where I was.
25 THE COURT: You said there is no basis.
519
1 MR. ROSEN: Oh.
2 THE COURT: It sounded like you were repeating
3 yourself.
4 MR. ROSEN: There's - there's no basis in the Federal
5 Rules of Evidence. And if counsel believes there is I would
6 invite him to point us to where in the Federal Rules of Evidence
7 it is even suggested that to offer a part of a deposition you
8 need to offer all of it.
9 And, in fact, let me help counsel out. Rule 32 says
10 we can offer any part of a deposition of a party. And if you
11 think it's out of context, it's your job to offer what's called
12 the fairness designations. It's your job, meaning the debtor,
13 not Your Honor of course. And debtor can certainly offer any
14 fairness designations he wants that go with this exhibit.
15 That's his prerogative.
16 THE COURT: The problem is that all exhibits were
17 supposed to be to me by a certain time. You may well have a
18 reason to want to introduce this late. But without the whole
19 transcript, it's prejudicial. And so at this point I'm not
20 going to introduce it until you have produced the whole
21 transcript for everybody to review. And then he can - he can at
22 least have an opportunity to decide, in the middle trial,
23 whether or not he wants to introduce other excerpts. So at this
24 point it's excluded.
25 MR. ROSEN: Your Honor, may I just say in view of your
520
1 comments, number one, we didn't delay the offer of this. This
2 issue came up yesterday.
3 THE COURT: I - I didn't say you did. I just said
4 that it otherwise means prejudice if he doesn't have an
5 opportunity to review the whole -
6 MR. ROSEN: It's not prejudice. He had the
7 opportunity to get the transcript three years ago.
8 THE COURT: But maybe he didn't need it three years
9 ago. And now all of a sudden you're seeking to introduce it.
10 And it becomes prejudicial in the -
11 MR. ROSEN: Excuse me, Your Honor, -
12 THE COURT: - middle of trial.
13 MR. ROSEN: Your Honor, you're making arguments for
14 Mr. Zlotoff, which he will not make himself. Don't -
15 THE COURT: I'm not making an argument for anybody.
16 MR. ROSEN: You are.
17 THE COURT: He objected because it's not the whole
18 transcript.
19 MR. ROSEN: And, Your Honor, you just offer, as an
20 excuse for Mr. Zlotoff, that maybe he didn't need the whole
21 transcript three years ago.
22 THE COURT: I don't know whether he did or didn't -
23 MR. ROSEN: Well, I'm telling you that -
24 THE COURT: - Mr. Rosen. You try to take me on as if
25 - as if I'm your colleague.
521
1 MR. ROSEN: What -
2 THE COURT: I'm not.
3 MR. ROSEN: Your Honor, -
4 THE COURT: And I'm telling you I've ruled. And I'd
5 like you to be quiet.
6 MR. ROSEN: Your Honor, I'd like to make a record,
7 just if I may have the privilege of speaking for 30 seconds on
8 this. You just offered as an additional ground that perhaps Mr.
9 Zlotoff is prejudiced because he didn't know he had to get it to
10 before now. Our trial exhibits, which he's had a long time
11 include excerpts from this very same deposition. There is no
12 basis for Your Honor suggesting - and indeed Mr. Zlotoff is not
13 claiming - that his need to get this transcript arose just now.
14 That's number one.
15 Number two - and it's my last comment - I find it
16 extremely disheartening that Your Honor would say to me this is
17 being offered late. Mr. Zlotoff yesterday has offered documents
18 which he didn't comply with, he had before. He didn't comply
19 with your order. And that's okay.
20 THE COURT: No. The standard is prejudice.
21 MR. ROSEN: No. The standard is good cause, Your
22 Honor, for not complying.
23 THE COURT: Yes, that is good cause -
24 MR. ROSEN: That's not prejudice.
25 THE COURT: - and prejudice. Anyway, if there's - if
522
1 there's no prejudice then there's a different - well, anyway.
2 Here there is possible prejudice. And all you have to do is let
3 him see the transcript.
4 MR. ROSEN: Your Honor already ruled on a motion he
5 made before trial. He asked that we'd be required to produce
6 the transcripts to him. We said no. Your Honor ruled in our
7 favor.
8 We have a transcript that says - in which you said to
9 Mr. Zlotoff he doesn't have any obligation to produce them to
10 you.
11 THE COURT: I understand, but that's not in the middle
12 of trial.
13 MR. ROSEN: Well, I don't understand the difference.
14 THE COURT: It's a new - it's a new excerpt that
15 you're seeking to introduce in the middle trial.
16 MR. ROSEN: Okay. Well, Your Honor, now that we know
17 that new excerpts cannot be offered during trial, -
18 THE COURT: I didn't say that.
19 MR. ROSEN: Yeah.
20 THE COURT: They can. All you have to do is let him
21 read the -
22 MR. ROSEN: Excuse me.
23 THE COURT: - transcript.
24 MR. ROSEN: Now that we know -
25 THE COURT: You can do it during the break.
523
1 MR. ROSEN: - I can't offer it without doing something
2 that I have no obligation to do, does Your Honor have any
3 authority, I would beg the Court to give me so I can argue
4 against it, for the proposition I have to show him a transcript
5 in order to introduce this?
6 THE COURT: Or I would -
7 MR. ROSEN: I would love to have -
8 THE COURT: - adjourn the trial for him to go read the
9 transcript. I'm going to avoid prejudice.
10 MR. ROSEN: He doesn't have the transcript.
11 MR. ZLOTOFF: Your Honor, I'm going to withdraw it.
12 It's not worth the argument to me.
13 THE COURT: I see. All right.
14 MR. ZLOTOFF: I'm sorry - I'm sorry for the problem.
15 He just - he set me off and I probably shouldn't have objected
16 in the first place, because it's - it's not that meaningful.
17 MR. ROSEN: But - and that -
18 MR. ZLOTOFF: Because it doesn't go to anything that
19 he said, in the first place, because it - nothing here rebuts
20 the fact that Mr. Henson could have had a worksheet, a separate
21 worksheet, that Ms. Lucas testified she saw him waving around.
22 Nothing -
23 THE COURT: 290 is admitted.
24 MR. ZLOTOFF: - in here is contrary to that.
25 (Creditor's Exhibit 290 received in evidence.)
524
1 MR. ROSEN: Your Honor, there is now, as long as
2 you're on the subject of late-offered exhibits, I was handed two
3 exhibits by Mr. - by Mr. Zlotoff yesterday. So perhaps - and
4 they are - he marked them Exhibits R and S. I assume he wants
5 to for them, so let him do so I would suppose at this time
6 before we put Ms. Lucas back on the stand.
7 And, by the way, my opening objection is these were
8 never produced earlier. And the prejudice is there's no good
9 cause. There is no such thing as prejudice. The burden is on
10 the party who is moving the exhibits in in violation of an order
11 to show good cause why he didn't comply. I don't ever have to
12 show prejudice until he satisfies the burden of good cause.
13 That's the law in the Ninth Circuit and it's the law in every
14 court in this country.
15 THE COURT: I don't have R and S.
16 MR. ZLOTOFF: All right.
17 THE COURT: And so you don't have to - in any event,
18 you don't have to introduce R and S now because he tells you to.
19 You have - you decide -
20 MR. ZLOTOFF: Well, -
21 THE COURT: - when you want to introduce R and S.
22 MR. ZLOTOFF: If it's appropriate we could do it now.
23 It doesn't matter to me. Or, in fact, I'm -
24 THE COURT: Wait a second. I haven't - I didn't even
25 know I had it.
525
1 MR. ZLOTOFF: Okay.
2 THE COURT: This is a complaint by RTC against Mr.
3 Henson?
4 MR. ZLOTOFF: It's a certified complaint, and I just
5 request that the Court take judicial notice of it.
6 THE COURT: And what's the S?
7 MR. ZLOTOFF: S?
8 THE COURT: S.
9 MR. ZLOTOFF: Oh, Exhibit S. Oh, that's the notice of
10 amendment to motion to sell that was filed 9-25-02, and I asked
11 the Court to take judicial notice of that.
12 THE COURT: Is there -
13 MR. ZLOTOFF: It's simply a one-sentence statement
14 that - do you want me to read it, Your Honor?
15 THE COURT: I understand what the notice is. It says,
16 "Debtor hereby amends the prayer of his motion to sell free and
17 clear to provide that his plan shall be paid off from the
18 proceeds of such sale." I understand what it is.
19 Why are we getting this at this time?
20 MR. ZLOTOFF: Just housekeeping, Your Honor. There's
21 no - no special reason why now - oh, why as opposed to why not -
22 THE COURT: Well, this is after -
23 MR. ZLOTOFF: - a month - a month ago.
24 THE COURT: I mean this is dated a few days ago.
25 MR. ZLOTOFF: That's right.
526
1 THE COURT: Okay. So -
2 MR. ZLOTOFF: So I couldn't possibly have put it in my
3 trial binder because it's a new document.
4 THE COURT: And what about this other thing? This -
5 why is this being offered, this verified complaint?
6 MR. ZLOTOFF: The verified complaint goes to - to the
7 issue that Your Honor brought up, I thought, with regard to
8 Eisen, for - with regard to the reason for filing the Chapter
9 13. There was -
10 THE COURT: What does it say that's relevant, in your
11 view?
12 MR. ZLOTOFF: That there wasn't a prayer for damages.
13 I think at some point during the trial Your Honor asked whether
14 Mr. Henson was aware of - that there were - there was a
15 potential for a large damage award against him. And Mr. Rosen
16 said, 'Well, you know, statutory. Could be 50 cents,' or
17 whatever he said, which he could have paid out of his own
18 pocket. Well, it's not true. If you read this, you can see
19 that the damage request is for I think a hundred thousand
20 dollars per bad act or something like that.
21 So he was put on notice, if you look at the prayer.
22 For example, the prayer on the second claim for relief on page
23 10 for an award of statutory - statutory damages of a hundred
24 thousand dollars for each of the works infringed, so - and
25 there's a request further down as well for attorneys' fees. So
527
1 I think that it's relevant for that purpose, Your Honor.
2 MR. ROSEN: I have three objections. I'll start with
3 the complaint.
4 The complaint is dated April 4th, 1996. I haven't
5 heard anything that even approaches good cause for noncompliance
6 with Your Honor's order. I assume that you're going to ask me
7 what the prejudice is. And my prejudice is I comply with Court
8 orders, Mr. Zlotoff doesn't. That's prejudice, in addition to
9 everything else I've said yesterday -
10 THE COURT: How about on the merits?
11 MR. ROSEN: On the merits, of course it's -
12 THE COURT: What's the prejudice?
13 MR. ROSEN: Of course it's prejudicial on the merits.
14 This is being - the critical issue here is as follows. And it's
15 the same - and there are two cases that we talk about in our
16 brief.
17 At the point in time when the debtor filed the
18 petition in February of 1998 what was he facing. Was there a
19 reason, a legitimate reason that he conceived that he's facing a
20 claim that he was going to be unable to pay. To the extent -
21 and I think that that probably is of course the standard.
22 That's what I argued in my opening argument.
23 The fact that a complaint demands the maximum in a
24 statutory range of 500 to a hundred thousand dollars does not
25 mean that the creditor believed - that it could reasonably
528
1 believe that he was exposed for a hundred thousand dollars when
2 the creditor is - is fiercely contesting the fact that he, A,
3 infringed; B, that the infringement was willful. So you can't
4 just take and damages from a complaint.
5 But let me tell you the part that really offends me
6 about this. This is being offered to you as the pleading I
7 presume which is before - which the debtor is faced with in
8 February of 1998, about 22 months after this action was filed,
9 and which caused him to file the bankruptcy petition. If that
10 is the proposition that Mr. Zlotoff is presenting to you, it is
11 a fraud on the Court.
12 This is the first complaint in the case. Long before
13 February of 1998, we withdrew portions of this pleading. When
14 the Judge - when Judge Whyte granted us permanent injunction in
15 June of 1997 on a copyright claim, at or about that same time we
16 withdrew portions of this, including, by the way, if I remember
17 correctly, and we do have a record, the entirety of claim 3.
18 And for counsel to stand here and offer you this and
19 say this is what the debtor was faced with in February of 1998 -
20 because what he was faced with in '96 is meaningless. He didn't
21 file a bankruptcy petition in '96. What we was faced with in
22 '97 is meaningless.
23 If there is anything that's relevant it's what he was
24 faced with in February of 1998. And for counsel to offer this
25 knowing that it is - it is false, knowing that the - that
529
1 portions of this complaint were withdrawn, and including the
2 entirety of - of the third claim for relief constitutes a fraud
3 on the Court.
4 MR. ZLOTOFF: Your Honor, I don't know anything. All
5 I know is I went upstairs - or downstairs to the District Court
6 Clerk's Office and I said, 'Gee, what I can figure out from this
7 file with regard to what kind of action in the District Court
8 Mr. Henson had knowledge of or constructive knowledge of,' and
9 this is what I pulled out, the first document of the file.
10 MR. ROSEN: And may I respond to that as follows.
11 Counsel as an attorney is charged with the knowledge of what is
12 in the District Court file. He went to the District Court
13 Clerk's Office, he pulled out this document. If he had bothered
14 to read the Docket he would have seen the withdrawal, for
15 example, of the third claim for relief.
16 Counsel cannot say, 'Gee, I didn't do my job. I saw
17 June of '96' - 'April of '96, and I didn't go further.' He's
18 charged with knowledge of what's in that Docket. He went to the
19 Clerk to get it, and he should have looked at it, and I don't
20 know whether he did or not. But he's certainly responsible for
21 doing so, because he's made a representation to this Court that
22 it's false.
23 THE COURT: What about S -
24 MR. ROSEN: I don't have any objection to this
25 document because it is in the Court's - it's a public record in
530
1 the - in the Clerk of the District Court's file -
2 THE COURT: Wait. S we're talking about.
3 MR. ROSEN: R.
4 THE COURT: R, you have no objection?
5 MR. ROSEN: No, you interrupted me. I have no
6 objection to Your Honor seeing this document per se. What I
7 object to, as I said, is the lateness of it. It wasn't on the
8 list, number one.
9 If Your Honor believes it's relevant, then Mr. Zlotoff
10 should be directed to produce the rest of the Docket showing the
11 withdrawal of claim 3.
12 THE COURT: Or just the amended complaint. Was there
13 an amended complaint -
14 MR. ROSEN: No. There's not an amended complaint
15 because when you withdraw a cause of action you don't have to
16 file an amended complaint. You file a notice of withdrawal of
17 the Court's -
18 THE COURT: That's all you did, is to file a
19 withdrawal -
20 MR. ROSEN: Isn't that right, hm?
21 (Creditor's counsel confer briefly off record.)
22 THE COURT: There was no amended complaint?
23 MR. ROSEN: Of course not.
24 THE COURT: Well, I don't know what you did. It's not
25 "Of course not." Sometimes you do more than just withdraw. You
531
1 do something else. So now here I'm asking you was there an
2 amended complaint?
3 MR. ROSEN: No.
4 THE COURT: Thank you.
5 MR. ROSEN: There was a notice of withdrawal of the
6 third claim for relief.
7 THE COURT: That's fine.
8 MR. ROSEN: That's on the Docket.
9 With respect to Exhibit S, this is being put in,
10 according to Mr. Zlotoff, to show something, I have no idea what
11 it is. This purports to be a notice of amendment to a motion
12 that had already been set on the 10th of September for the 10th
13 of October, that we filed our opposing papers. We - we asked
14 for it, and Your Honor gave us a total of nine days to respond,
15 despite the fact that the Bankruptcy Rules, the Local Bankruptcy
16 Rules require 28-days notice for a motion to sell free and
17 clear.
18 THE COURT: Why are we - why are you arguing that now?
19 MR. ROSEN: I don't want - because I want to go a step
20 further.
21 I don't have any idea what Mr. Zlotoff used as the
22 relevance of this motion. I view it as relevant for one reason.
23 This is a continuation of - I don't want to say bad faith on the
24 part of Mr. Zlotoff. There is no such as a notice of amendment
25 to a motion. It is unknown in federal practice. It is not in
532
1 the Federal Rules, it's not in the Bankruptcy Rules.
2 You want to amend a motion, you withdraw the motion
3 and you file a new one. You start over again. You cannot just
4 with - with the - the aid of a pencil and a piece of paper
5 create a document called "notice of amendment to motion."
6 THE COURT: The legal sufficiency of the notice is not
7 before me.
8 MR. ROSEN: No. I'm saying if Mr. Zlotoff -
9 THE COURT: Then why are you going through this? I
10 don't understand -
11 MR. ROSEN: I'll say - I'll say it again.
12 THE COURT: - why you're - why you're - you're - why
13 are you objecting to the admission of the document, because the
14 document is legally deficient?
15 MR. ROSEN: No. To the contrary, I just said to you,
16 I don't know why Mr. Zlotoff is offering it, but if you admit it
17 into evidence it's okay with me because I will argue from it, -
18 THE COURT: Okay. That's fine.
19 MR. ROSEN: - as I just have, -
20 THE COURT: Then that's it.
21 MR. ROSEN: - that it is improper.
22 THE COURT: Then the answer is no objection.
23 MR. ROSEN: Other than the fact that it wasn't timely
24 produced, which I said earlier -
25 THE COURT: Well, it couldn't have been timely
533
1 produced. It occurred the month after the deadline, right?
2 MR. ROSEN: It's dated September 24th. It could have
3 been presented to us before this trial started.
4 THE COURT: Oh, I see. Okay. That's fine.
5 The - was RTC served with this document?
6 MR. ZLOTOFF: Which one, Your Honor?
7 THE COURT: With 20 - with S.
8 MR. ZLOTOFF: Yes.
9 THE COURT: Okay.
10 MR. ZLOTOFF: Yes.
11 THE COURT: And after that long lecture, I - or
12 whatever it was by Mr. Rosen, I understand that he doesn't
13 object to the introduction of R on the merits other than he
14 wants you to correct it, and I think that's correct. So that to
15 the extent you want to accept - if he'll make an offer of proof
16 that this was amended, in essence, by withdrawal of the third
17 claim for relief and that's the only way in which it was
18 changed, and you want to accept that, then there's no reason to
19 go to the District Court. If you want to go to the District
20 Court and check it, you can check it. But otherwise I would -
21 if you won't accept what he's saying, then I would order you to
22 go to the District Court.
23 MR. ZLOTOFF: No. You know, I spent about an hour
24 looking at the Docket, and I don't remember seeing a withdrawal.
25 I remember seeing an order, I think by Judge Whyte, denying a
534
1 claim for trade secrets, or something like that. But I didn't
2 read from the third cause of action, which was the trade
3 secrets.
4 THE COURT: Did -
5 MR. ZLOTOFF: It was the - it was the second cause of
6 action for copyright infringement. So, yeah, I accept what he
7 says, and - but I still don't understand why -
8 THE COURT: Do we have the Docket here, Tanya?
9 THE CLERK: For District Court?
10 THE COURT: Do we have anything that shows regarding
11 claim 3?
12 (The Court and Clerk confer off record.)
13 THE COURT: Okay. Fine. You make an offer of proof
14 that you withdrew claim 3 or that it was denied?
15 MR. ROSEN: Not an offer of proof. I made a
16 representation.
17 THE COURT: Right. Okay. That's fine.
18 Then you withdrew it voluntarily?
19 MR. ROSEN: Yes, I'm told -
20 THE COURT: Thank you. That's fine.
21 MR. ROSEN: I wasn't there. My - that's why, I'm not
22 being impolite. I had to lean over and ask Ms. Kobrin. I
23 wasn't at the - involved in the case at that time.
24 THE COURT: That's fine. R is admitted.
25 (Debtor's Exhibit R received in evidence.)
535
1 MR. ZLOTOFF: Shall I go through one other
2 housekeeping matter or -
3 THE COURT: Sure.
4 MR. ZLOTOFF: There was -
5 THE COURT: What do you need, Tanya?
6 THE CLERK: I just wondered about S.
7 THE COURT: S is admitted.
8 THE CLERK: Okay.
9 (Debtor's Exhibit S received in evidence.)
10 MR. ZLOTOFF: Wells Fargo statements. That was O.
11 And I think that is hanging on a thread. I was supposed to
12 represent that those were true copies of the subpoena that I
13 got, and they are. And so I think they have actually been
14 referred to by Mr. - by Mr. Rosen as cross-examination of Ms.
15 Lucas. So I would move for their admission as well.
16 THE COURT: Any opposition now?
17 MR. ROSEN: Yeah, but I think you already ruled on it.
18 You overruled my opposition. You allowed it in.
19 MR. ZLOTOFF: Oh, okay.
20 THE COURT: What does it show, Tanya? O.
21 THE CLERK: Objection overruled subject to
22 certification.
23 MR. ROSEN: You overruled my objection. You told Mr.
24 Zlotoff he had to get certification for the subpoena.
25 THE COURT: Okay. It's admitted now.
536
1 (Debtor's Exhibit O received in evidence.)
2 THE COURT: Are we ready for Ms. Lucas?
3 MR. ROSEN: Yes, I am.
4 THE CLERK: I still show P and Q out there. P and Q,
5 Exhibits P and Q -
6 MR. ZLOTOFF: P and Q? Both - Q Mr. Rosen objected
7 to. That was the transcript that we had talked about.
8 THE CLERK: It was a copy of the Court's calendar.
9 THE COURT: Yeah, Q -
10 THE CLERK: Oh. Q. Excuse me.
11 MR. ZLOTOFF: That was Q -
12 THE COURT: P. I'll take P if it's my calendar. It's
13 not a problem. I don't see why that would be a problem. But -
14 so P, if you want it, can come in.
15 MR. ZLOTOFF: Yes, I do.
16 THE COURT: Okay. P is in. It's the Court's
17 calendar.
18 (Debtor's Exhibit P received in evidence.)
19 THE COURT: And what about Q?
20 MR. ZLOTOFF: That was the - a part of the Court
21 transcript of a proceeding that Mr. Rosen said was out of
22 context and so inaccurate. And so we objected to it.
23 THE COURT: Okay. So do we have the whole transcript?
24 MR. ZLOTOFF: The whole transcript is in - is in a
25 court file. That's where I copied it from, from a court file.
537
1 So I don't know why the Court can't take judicial notice of it,
2 but -
3 THE COURT: I could take judicial notice of the
4 transcript before me - in my file. And if you're agreeable that
5 the whole transcript comes in or that you want to do counter
6 excerpts, what do you want to do?
7 MR. ROSEN: We've already offered the portions of that
8 very transcript. They're in our books.
9 THE COURT: So is there any problem with admitting
10 this portion as well?
11 MR. ROSEN: Yes, of course.
12 THE COURT: And what is that, because it's late? What
13 is the reason?
14 MR. ROSEN: Yeah. Because it's not in compliance with
15 your order, of a transcript of a hearing that goes back four
16 years, number one. And, number two, because the portion of the
17 transcript which is offered is deceptive.
18 THE COURT: But your excerpts clear up the deception,
19 you say?
20 MR. ROSEN: Yes.
21 THE COURT: Okay. I'll take Q.
22 (Debtor's Exhibit Q received in evidence.)
23 THE CLERK: I show E still out there too.
24 MR. ZLOTOFF: No, no, no. That was out.
25 THE CLERK: Out? Okay. Thank you.
538
1 MR. ZLOTOFF: That was in limine excluded.
2 THE CLERK: Okay.
3 THE COURT: Okay. Yeah. Why don't we see if Ms.
4 Lucas is available.
5 Go off the record, please.
6 (Off the record at 10:57 a.m.)
7 THE COURT: Yeah. In ruling on any of these exhibits
8 that RTC claimed were relevant and Mr. Zlotoff on behalf of the
9 debtor claimed that he didn't think they were relevant, I'm not
10 limited to whether something bears on a debt or assets.
11 Obviously I'm not determining any free speech issues and I'm
12 determining anybody is a good or a bad person, character flaw.
13 It has to do with relationship between two parties,
14 and that is the debtor and the RTC.
15 MR. ZLOTOFF: I understand. I appreciate all the work
16 you put into that, Your Honor. Thank you.
17 THE COURT: Ms. Lucas, are you ready to step forward
18 and testify? But you need to be at a microphone?
19 MS. LUCAS: I have been trying to reach attorneys,
20 Your Honor. My attorney, who had appeared before in this case,
21 is not available. And he referred me to another attorney in
22 Palo Alto and I was just waiting for a call back from him.
23 I feel as if I've gotten in over my head and I would
24 prefer not to testify further if there is any way that can be
25 postponed until my attorney can help me.
539
1 THE COURT: Yeah. But we need to know when, Ms.
2 Lucas.
3 MS. LUCAS: Yes. If - if I can find out him from him
4 when he is available, then I - I can tell you.
5 THE COURT: What have you done? Have you called -
6 MS. LUCAS: I called several attorneys.
7 THE COURT: No, I know. But -
8 MS. LUCAS: Yes.
9 THE COURT: - you say you're waiting for somebody in
10 Palo Alto?
11 MS. LUCAS: Yes. I -
12 THE COURT: Or - but what -
13 MS. LUCAS: I reached somebody about 15 minutes ago
14 who is supposed to call me right back, but he was on the phone,
15 and I don't know what his situation is.
16 THE COURT: I'll give you permission to leave your
17 cell phone on and then we're going to go forward. Mr. Rosen has
18 agreed to try not to deal with anything dealing with joint
19 tenancy, that issue, and then I'll break again if I need to.
20 But you can leave your cell phone on if you've given
21 him your cell phone to call you back.
22 MS. LUCAS: Thank you.
23 THE COURT: I remind you that you're under oath.
24 Could you say that on the record?
25 VICTORIA AREL LUCAS, DEBTOR'S WITNESS, PREVIOUSLY SWORN
540
1 THE WITNESS: Yes, Your Honor.
2 THE COURT: Mr. Rosen, your witness.
3 MR. ROSEN: Thank you, Your Honor.
4 CROSS-EXAMINATION, resumed
5 BY MR. ROSEN:
6 Q. Ms. Lucas, yesterday we were talking about your check book
7 register. And I was about to ask you a question. I think we
8 got sidetracked, so let me come back to it.
9 If you wanted to know how much money you had in an
10 account as of any given time, like today, you could open your
11 checkbook register and see how much is available, meaning that
12 there may be checks that you've written which albeit not yet
13 been presented, but you could open your checkbook register and
14 tell us that, couldn't you?
15 A. Not really.
16 Q. Why not?
17 A. Because I don't always write everything down and because I
18 have different accounts. And my - the joint account I have with
19 my husband, he has expenses that he tells me about or that he
20 emails me about. And I don't always know at the moment what the
21 commitments are.
22 Q. Ms. Lucas, didn't you testify yesterday afternoon that you
23 could open the checkbook, and assuming the math was correct, you
24 could tell us what the balance was in the household account, the
25 Wells Fargo account? Didn't you say that yesterday?
541
1 A. I may have. That assumed that the math was correct.
2 Q. Right, okay. So now tell me something, Ms. Lucas. As I
3 read Exhibit A, the third page, Schedule B - and you can
4 certainly open to it, ma'am. The page that's headed "Schedule
5 B, Personal Property." This account is identified with a
6 balance of $1500.
7 A. It's exhibit - excuse me. It's Exhibit A?
8 Q. Exhibit A, third page of the exhibit.
9 A. And what was the question?
10 Q. The - the account you've identified is the household account
11 at Wells Fargo.
12 A. Yes.
13 Q. It's shown on here as having a balance of precisely $1500.
14 A. Yes.
15 Q. Now we know from your testimony yesterday, even though your
16 husband described it as, quote, savings and checking accounts,
17 that the savings account balance at that time in March of 1998
18 was zero, right?
19 A. That's what I recollect.
20 Q. So are you - is it your recollection, as you sit here today,
21 that the balance in your checking account at Wells Fargo on
22 March 10th of 1998 was $1500?
23 A. I'm not sure. It looks right, but without actually looking
24 at any records I can't be sure.
25 Q. But if you wanted to, to make sure it was right, ma'am, you
542
1 could have before taking the witness stand in this case, and
2 after conferring with Mr. Zlotoff, you could have gone back to
3 your checkbooks and found a checkbook that covered this period
4 of time, couldn't you?
5 A. I -
6 Q. And then you wouldn't have to guess, right?
7 A. I don't know where - whether my current - my current
8 checkbook doesn't cover this period. And I don't know whether
9 that checkbook is in Canada or where it physically is.
10 Q. So, in other words, if you don't have it, it's because you
11 shipped it to Canada when?
12 A. Possibly a couple of weeks ago or I might have left it with
13 my husband earlier.
14 Q. You left your 1998 checkbook up in Canada with your husband?
15 A. It's possible. I'm not sure.
16 Q. Ms. Lucas, please, this is a court of law. Anything is
17 possible, okay? And to use the example from the textbook, it's
18 possible that a dog ate the exhibit. But we only deal in
19 probability, so if I might ask you, ma'am, is it likely, do you
20 believe it is more likely than not, meaning 51 percent
21 certainty, that you took this document out of the United States
22 and gave it to your husband in Canada?
23 A. All I can tell you is that I think it is unlikely that I
24 have it in my possession at the moment.
25 Q. Yeah, I know. My question is when did you last have it in
543
1 your possession, ma'am?
2 A. I don't know.
3 Q. All right. Now let me see if I understand something. Apart
4 from the separate accounts that you have, your testimony
5 yesterday was that your husband maintained no separate bank
6 accounts of any kind, not savings or checking, right?
7 A. That's correct.
8 Q. And again we're in this period of 1998. Unless I say
9 differently, please understand my questions relate to this
10 period of time.
11 Well, if I'm understanding you correctly, ma'am, then
12 putting aside whatever money you had in your separate account,
13 the grand total of the amount of cash you and your husband had,
14 total cash you and your husband had on March 10th, 1998 is
15 $1500, right?
16 A. It seems correct.
17 Q. Okay. All right. Now you testified that you opened all of
18 the correspondence, including the credit card bills and the like
19 and invoices that came to your husband, that were addressed to
20 him, right?
21 A. During that period of time.
22 Q. What was - what credit cards did your husband have as of
23 March of 1998?
24 A. I think he may have had an American Express, but I'm not
25 sure. At some point, I - I think it was an American Express.
544
1 There was a - I believe there was a card from Wells Fargo.
2 There was a card which at that time may have been
3 called a More Card. I think the company that owned it has been
4 bought and sold several times since then.
5 THE COURT: I didn't understand the word.
6 MR. ROSEN: M-o-r-e.
7 THE WITNESS: More. It was called - at that time it
8 was called M-o-r-e, More Card.
9 BY MR. ROSEN:
10 Q. Now these are all credit cards you're -
11 A. Yes.
12 Q. - talking about, right?
13 A. Yes.
14 Q. Because when you said a Wells Fargo card, you're not talking
15 about a card that allows you to access an ATM. You're talking
16 about a card that you can give to a merchant and charge a
17 purchase and then you have to pay the bank?
18 A. Yes.
19 Q. Like a Visa or MasterCard, right?
20 A. Yes.
21 Q. Okay. So we got three cards so far. More, Wells Fargo, and
22 American Express, right?
23 A. Yes.
24 Q. Is the American Express a green, was it a green or gold?
25 A. Green.
545
1 Q. Green. Any other credit cards your husband had at that
2 time?
3 A. He may have had some gasoline credit cards. I think he was
4 listed on my - what used to be called Beacon, Ultamar Diamond,
5 whatever they are these days -
6 Q. Ma'am, I'm only - I've only asked you for the credit cards
7 that your husband had -
8 A. Not joint.
9 Q. I'm not interested in joint credit cards.
10 A. Okay.
11 Q. I'll ask you that separately. The only - these are only
12 credit cards that are in your husband's name, not yours.
13 They're not joint cards. So of any others that he had?
14 THE COURT: Was that clear to you? Are these other
15 cards solely his?
16 THE WITNESS: Yes. Thank you, Your Honor.
17 I don't remember if he had gasoline cards. I don't
18 think of anything else.
19 BY MR. ROSEN:
20 Q. Okay.
21 A. Oh, he had a Sears card I think.
22 Q. Okay. So we have - let me see if I've got this right now.
23 At this time in February, March of 1998 your husband had
24 separately not a joint card, a credit - the following credit
25 cards: Sears, More, Wells Fargo, American Express green, and
546
1 possibly a gasoline credit card, like a Mobil or an Exxon card?
2 A. Well, - well, wait. Now the Wells card was joint, so that -
3 you said -
4 Q. Okay.
5 A. - you would ask me that separately.
6 Q. Okay. So we have four: Sears, More, American Express
7 green, and possibly a gas - gasoline company credit card, like a
8 Mobil card or a Gulf card or something?
9 A. Maybe - I know at one point he had a Shell -
10 Q. Oh, that's fine. I don't care what gas company it was.
11 A. I think -
12 Q. I'll accept Shell.
13 A. I think he may have had a card with Montgomery Ward.
14 Q. Okay. That's another one, Montgomery Ward.
15 Okay. If that taxes your recollection, that's fine.
16 If as we go through this you remember any other cards that your
17 husband had alone, not joint cards, you let me know and we can
18 ad did it.
19 Okay. Let's start with the Montgomery Ward credit
20 card. What was the balance owed on that credit card by your
21 husband in February of 1998?
22 A. I don't know.
23 Q. What was the balance in March of 1998?
24 A. I don't know. The best I could do is an estimate.
25 Q. Well, when you say estimate are you just guessing and
547
1 plucking a number out of the air or do you have a basis to
2 believe that it is more likely or not to be correct?
3 A. I know that for a number of years, but I don't know if it
4 was during this period, our balances ran about a hundred
5 dollars.
6 Q. But you don't know what your balance - the balance on your
7 husband's Montgomery Ward card was in February or March of '98,
8 right?
9 A. That's correct.
10 Q. What was the balance due on your husband's More credit card
11 in February of 1998?
12 A. I don't know.
13 Q. How about his American Express card?
14 A. He had to pay that off every month. So any balance that he
15 might have had would have just been until the next bill was
16 paid, so I - I don't know.
17 Q. So, in other words, he paid all the American Express cards
18 bills - bills on time?
19 A. He had to. With the - that was the terms. Of the terms of
20 the green card are that you have to pay them, -
21 Q. No. I - I -
22 A. - they're due when paid. They are due -
23 Q. I understand. And that's American Express' stated terms.
24 I'm asking you whether your husband complied with those stated
25 terms?
548
1 A. If he could.
2 Q. Okay. Now - now let's talk about joint cards. And you
3 mentioned one card that is a joint account, meaning that one
4 bill comes to the house for charges placed on the card either by
5 you or your husband, right?
6 A. Yes.
7 Q. And that's a Wells Fargo card. What other credit cards were
8 there that were joint in the sense of both you and your husband
9 had access to them?
10 Again, remember my period of time we're focusing on,
11 ma'am, is March - February, March of 1998.
12 THE COURT: Are you including gas cards?
13 MR. ROSEN: If there is one, sure.
14 THE WITNESS: The only one I remember is the gas card,
15 the Ultramar.
16 BY MR. ROSEN:
17 Q. So two credit cards in joint name, Wells Fargo and a gas
18 company card, right?
19 A. That's all I remember right now.
20 Q. Okay. And you have records of these credit card charges,
21 right?
22 A. Yes.
23 Q. So if you wanted to know exactly what they were you could
24 have brought them in or you could have looked at the records
25 before you testified, right?
549
1 Or are they in Canada, too, ma'am?
2 A. I believe that - I don't believe I'm in possession of 1998
3 records at this time.
4 Q. Is that because you threw them out?
5 A. No.
6 Q. Then tell me how you came to be dispossessed, that's - I
7 don't think that's a word - out of possession of?
8 A. I'm in the process of moving. I'm trying to move back East
9 to get closer to my husband.
10 Q. So does that mean in the process of moving you threw out
11 some of these records?
12 A. No.
13 Q. Does it mean in the process of moving you sent them to your
14 husband or gave them to him in Canada?
15 A. I sent some of them to him.
16 Q. What about the rest of them?
17 A. They went on a truck or I sent them by - by shipment, by box
18 shipment.
19 Q. Okay. So you didn't throw any out. All of these -
20 A. I - I haven't -
21 Q. - records that you don't have, to your knowledge, are now in
22 the possession of your husband in Canada, right?
23 A. Or they're in storage just where I have sent some of my
24 records.
25 Q. And where is that?
550
1 A. It's in the United States.
2 Q. Can you tell me what state it's in?
3 A. New York.
4 Q. So you have sent some of the records from your home for - to
5 some storage facility or some person to store for you in the
6 state of New York?
7 A. Yes.
8 Q. And those include records of the financial affairs of you
9 and your husband covering the period of time that includes
10 February, March of 1998?
11 A. They might be. I don't know, I was just packing and sending
12 it. I don't remember what went in which box.
13 Q. Got you. Okay. What was - in February of '98 what was the
14 balance due on the Wells Fargo card?
15 A. I don't remember.
16 Q. What was the balance due on the gasoline card in February of
17 '98?
18 A. I don't remember specifically. I know what it tended to run
19 from month to month.
20 Q. Now I'm asking you for a recollection of what it was that
21 month.
22 A. I don't remember.
23 Q. What was the balance due on the Wells Fargo credit card for
24 - in the month of March 1998?
25 A. I don't remember.
551
1 Q. What's the balance due today on that card?
2 A. On the Wells card?
3 Q. On the Wells Fargo card, what's the balance due today?
4 A. I couldn't tell you exactly, but it may be $10,000.
5 Q. Now when was the last - when did you last get your statement
6 from Wells Fargo?
7 A. Two or three weeks.
8 Q. And I assume you opened the statement and looked at it,
9 right?
10 A. Yes.
11 Q. Did you make a payment on that - on that statement, that
12 credit card statement?
13 A. It's a complex question because they have had the wrong
14 address and they called me up and told me what the balance was.
15 I didn't get the statement until after they told me, so I made
16 the payment by transferring funds at their request over the
17 phone. I didn't pay the - I didn't pay for the bill.
18 Q. The bank had the wrong address.
19 A. Um-hum.
20 Q. I thought your address was the same addresses of the house
21 that you and Mr. Henson had been living in since 1996?
22 A. No.
23 Q. You have a different address?
24 A. Yes.
25 Q. Since when have you had a different address?
552
1 A. Since almost two - two months after we moved to the house.
2 Q. You've had a different residence address from your husband
3 since 1996?
4 A. No.
5 Q. You've had a different mailing address?
6 A. We have had -
7 THE COURT: Excuse me. This sounds like it's going to
8 go into the joint tenancy issue.
9 MR. ROSEN: No, it's not. No, it has - I think the
10 witness has just said, she's lived in the house. It's not a
11 question of abandonment of her residence.
12 But I think what she's saying is she had a different
13 mailing address.
14 BY MR. ROSEN:
15 Q. Is that what you're saying?
16 THE COURT: Well, let's - I don't - I don't think you
17 should ask her about the house, I've just decided myself.
18 BY MR. ROSEN:
19 Q. Okay. All right. You say the bank sent this bill to the
20 wrong address. Is the address that the bank sent the bill to,
21 Wells Fargo, the same address it had been sending the bill to
22 all along?
23 A. No.
24 Q. It - it changed and sent to a different address?
25 THE COURT: Stop with the addresses, please. I'm
553
1 serious, Mr. Rosen. Don't ask her about addresses and mailing
2 and living, because I'm concerned that that may be used in the
3 context of the joint -
4 MR. ROSEN: All right. I'll just make a note and ask
5 it in the afternoon, okay.
6 THE COURT: Right.
7 MR. ROSEN: Okay. I don't see how, Your Honor, but
8 I'll defer to your -
9 THE COURT: I don't - I don't know -
10 MR. ROSEN: - your concern.
11 THE COURT: - for sure either.
12 MR. ROSEN: Yeah, okay.
13 THE COURT: I'm being extra cautious.
14 BY MR. ROSEN:
15 Q. Okay. Let's go onto something else.
16 Ms. - Ms. Lucas, is it correct that whatever credit
17 card balance you and your husband had as of February of 1998,
18 you know, the amount that you owed in total on all credit cards,
19 that subsequent to that that balance increased, yes or no?
20 THE COURT: From when to when?
21 MR. ROSEN: After February of '98.
22 THE COURT: To today? I mean compared -
23 MR. ROSEN: Yeah, to today.
24 THE COURT: - February '98 to today?
25 MR. ROSEN: To today.
554
1 THE WITNESS: I believe that the balance went up and
2 down.
3 BY MR. ROSEN:
4 Q. Let me ask the question this way. Do you and your husband
5 owe more money on credit cards today than you did in February of
6 1998?
7 A. I owe more on my credit cards.
8 (Witness' cell phone ringing.)
9 THE WITNESS: Please excuse me.
10 THE COURT: Okay. Go ahead. If you want to take it
11 outside, you can.
12 THE WITNESS: Thank you, sir.
13 THE COURT: If it's a personal call, come right back.
14 THE COURT: Go off the record.
15 (Recess taken from 11:18 a.m. to 11:36 a.m.)
16 THE COURT: Ms. Lucas.
17 THE WITNESS: Your Honor, I found an attorney who says
18 he can appear and that he will meet me this afternoon at 12:30.
19 I'll require a little time to try to bring him up to speed.
20 THE COURT: Okay. And you understand - are we on the
21 record, Liz? Yeah.
22 You understand I don't know that you need an attorney
23 for this. You have to decide with him whether or not - or her
24 whether you need anybody for this. I just want you to know that
25 the issues, because Mr. Rosen has said there are issues that are
555
1 going go into - that may be relevant to whether or not RTC
2 thinks that you have a joint interest in the Palo Alto property.
3 THE WITNESS: Yes, Your Honor. Thank you.
4 THE COURT: That's fine.
5 Can you go into a totally unrelated area for a while?
6 MR. ROSEN: Yeah.
7 THE COURT: And then we'll break for lunch.
8 MR. ROSEN: Well, I was going to suggest that I think
9 I can be close to finishing by 12:30. So if that would be a
10 good time to break for lunch and at the same time per what Ms.
11 Lucas said, she can meet with her counsel, and then we can
12 resume at 1:30 and finish. As I say, I'm - I expect we're going
13 to finish today.
14 THE COURT: Why don't you go ahead.
15 MR. ROSEN: Okay.
16 BY MR. ROSEN:
17 Q. Ms. Lucas, a moment ago, before the break when I asked you
18 about the credit card balances, you said, quote, they went up
19 and down. I just want to make sure I understand what you mean
20 by that.
21 The - you get a bill for - on a credit card. And
22 let's say for argument's sake it says you owe $5,000. But you
23 have an option of paying a minimum amount. Whatever it might
24 be, a hundred dollars. You don't have to pay the entire thing.
25 And you can carry that balance forward month to month as long as
556
1 you make the minimum payments.
2 So is that what you're referring to when you say the
3 balances went up and down?
4 A. That's part of it, yes.
5 Q. Okay. And the practice of paying less than a hundred
6 percent of what is due on the credit card, of carrying a balance
7 from month to month and paying either a minimum or something
8 less than the entire amount due, is that a practice that existed
9 with respect to you and your husband's credit cards in February,
10 March of 1998?
11 A. 1998. At that time, yes, I believe it was.
12 Q. Okay. And, in fact, that practice existed going back to at
13 least the middle of '97, that you and your husband were making
14 payments of less than the entire bill on your credit cards;
15 isn't that true?
16 A. During some period, I don't remember when, but when we had
17 money we paid them off every month.
18 Q. Yeah. But I'm saying the practice - your not having money
19 and paying something less than the entire amount of the bill,
20 that practice dated back to some time in the summer of '97,
21 didn't it?
22 A. It seems likely because I believe it was in early '97 that
23 he lost his - his main client.
24 Q. Okay. Now yesterday, ma'am, you testified that you engaged
25 the movers, this moving truck to move, among other things,
557
1 papers, files respecting the litigation your husband was engaged
2 in, and some family memorabilia that I believe you said you and
3 your husband are the respective family members in charge of
4 maintaining that. Do you recall that testimony?
5 A. Yes.
6 Q. Okay. Let me - I don't want to go into the contents of it,
7 but I would like you to try and help me out. What I'm holding
8 up here is what lawyers call a transfile box or a banker's box.
9 Do you see it?
10 A. Yes.
11 Q. And you see the capacity of this box?
12 A. Yes.
13 MR. ROSEN: And the let the record reflect it is I
14 believe the standard of sizes of 18 inches by 12 inches with a
15 depth of 18 inches.
16 BY MR. ROSEN:
17 Q. How many - approximately how many of these boxes by way of
18 trying to get an idea of the content of files and papers and
19 family memorabilia did you pack up to put - and put on the
20 moving truck to go to Canada, roughly?
21 A. I - this is such a stressful period and other people were
22 moving the boxes.
23 Q. I'm only asking for the boxes that went on the truck. The
24 truck -
25 A. I understand that.
558
1 Q. - that was loaded about 10 days or two weeks ago.
2 A. I understand that. I'm just - like I say, it's a very
3 stressful period and I had other - I had friends moving boxes
4 from different places at different times.
5 Q. No. I'm not asking about moving boxes from different
6 places. I'm only asking for the ones the went on this U-Pack.
7 A. Yes. But they came from different places -
8 Q. Okay.
9 A. - at different times over three days.
10 Q. All right. And as they went on the U-Pack, how many of
11 these size boxes were the equivalent content was there in these
12 files and papers and personal papers and memorabilia, family
13 memorabilia, what's the total here?
14 A. I don't know. I - I'd estimate maybe three dozen.
15 Q. Okay. How much does it cost to mail a box like this Parcel
16 Post to Canada?
17 A. I don't know.
18 Q. Well, you have mailed packages to your husband in Canada?
19 A. I haven't used Parcel Post, and where any large box was
20 concerned, I haven't used mail.
21 Q. Okay. What manner have you used in terms of sending
22 materials to your husband, things like papers from his cases and
23 books? What have you used, if not Parcel Post?
24 A. I've only mailed smaller packages to him. Small packages.
25 Anything larger than that I've sent to my own facility. I've
559
1 sent to another facility inside the United States.
2 Q. Okay. So of the larger ones that go in a box, let's say of
3 this size, that you sent to your facility in New York, what does
4 it cost to mail that, a box like this?
5 A. I don't know about mail, but FedEx Ground, if it weighs 30,
6 30, 40 pounds, 15 or $20 maybe.
7 Q. Is that how you sent it, FedEx?
8 A. Ground.
9 Q. Is that how you sent it?
10 A. That's how I've been -
11 Q. FedEx Ground?
12 A. - sending papers that did not make it onto the truck, except
13 for small packages.
14 Q. The papers that you're talking about you sent FedEx Ground
15 were ones that you sent to this other person or storage facility
16 in New York?
17 A. That I sent FedEx Ground, yes.
18 Q. Okay. How many packages would you say, small - whether
19 they're small or large, you sent to your husband in Canada? And
20 I'm not talking about what was on the moving truck, but
21 separately, how many packages?
22 You testified, for example, yesterday about there were
23 some books that you sent to him, some magazines, some papers
24 from the files, the litigation files. How many packages did you
25 send to him?
560
1 A. I mailed him small packages, perhaps once a week since he
2 left. And I went to Canada, I would take him papers and
3 anything that was - that I thought he should have.
4 Q. Okay. Did you take him money?
5 Ma'am, did you take him money?
6 A. Yes.
7 Q. And did you also send him money?
8 A. No.
9 Q. Okay. How many times have you been to Canada to see your
10 husband since he left the United States in May of 9- - of 2001?
11 A. About eight times.
12 Q. And would it be your intention then, ma'am, that you would
13 continue to either send or take him money as - as he needed it?
14 That would be your intention?
15 A. I don't have any money to take him.
16 Q. If you were to have money and he needed it, -
17 MR. ZLOTOFF: I'm going to object. It's speculation.
18 THE COURT: Sustained.
19 BY MR. ROSEN:
20 Q. You don't have any money at the moment; is that what you
21 mean?
22 A. I'm unemployed.
23 Q. How long have you been unemployed, ma'am?
24 A. Since August 30.
25 Q. Okay. How many times have you taken money to your husband?
561
1 A. Possibly twice.
2 Q. And if - if you were to receive money by virtue of the sale
3 of the house, would you then take that money to Canada?
4 A. There would be a separate transfer of our differing funds.
5 Q. My question is would you take that money to Canada?
6 MR. ZLOTOFF: Whoa, whoa. Objection.
7 THE COURT: Sustained.
8 BY MR. ROSEN:
9 Q. If you were allowed to enter Canada - I think you testified
10 yesterday you've applied for some - to immigration or some sort,
11 would you take that money to Canada?
12 MR. ZLOTOFF: Which money? Objection.
13 THE COURT: Sustained.
14 MR. ROSEN: The money that she would get -
15 THE COURT: The problem is that you're not making a
16 differentiation between her separate money that she would get
17 and his money that he would get.
18 MR. ROSEN: Of course I did. It's - it's inherent in
19 the question.
20 THE COURT: Well, it wasn't -
21 MR. ROSEN: It's money she would get.
22 THE COURT: - and it was ambiguous. And I am
23 therefore sustaining the objection. And you should rephrase the
24 question rather than arguing with me.
25 BY MR. ROSEN:
562
1 Q. Okay. With respect to the portion of the money that you
2 would get from the sale of the house, would it be your intention
3 then to take the money to Canada?
4 A. In the first place, I have made no application for status in
5 Canada.
6 In the second, it's my intention to take money
7 wherever I will be moving. If I get a job somewhere, then that
8 is where I will take it.
9 Q. But your present intention and desire is to move to Canada
10 to be with your husband, right?
11 A. That's my desire, but immediately all I can do is visit him.
12 Q. Right. And if you do move to Canada or if you just go to
13 visit him, would it be your intention to take the money of your
14 share of the sale of the house to Canada?
15 A. I don't have any plans about the money at this point.
16 Q. And if Mr. Henson were to receive any money from the sale of
17 the house and for some reason it was entrusted to you, would you
18 then get - bring it to him or send it to him?
19 MR. ZLOTOFF: Objection, speculation.
20 THE COURT: Sustained.
21 MR. ROSEN: Speculation?
22 THE COURT: And "if...some reason," "for some reason
23 it was entrusted to you," that's speculation.
24 MR. ROSEN: Okay.
25 THE COURT: That's based on facts not in evidence.
563
1 BY MR. ROSEN:
2 Q. If - if Mr. Henson receives what he has claimed by way of
3 funds from the sale of the house, that he has already claimed by
4 way of his exemption, if that money were given to you, would you
5 take it to Canada for him?
6 MR. ZLOTOFF: Objection.
7 THE COURT: Sustained.
8 MR. ZLOTOFF: Why would the money be given to her?
9 THE COURT: Sustained. Sustained. Sustained.
10 Speculative.
11 BY MR. ROSEN:
12 Q. Other than the box -
13 MR. ROSEN: I'm sorry. Did you say something?
14 THE COURT: Speculative, based on facts not in
15 evidence.
16 BY MR. ROSEN:
17 Q. Other than the three dozen boxes you said of papers and
18 files and memorabilia that went on the moving truck, the - for
19 Canada, can you describe what else was on that truck?
20 A. I described some of it yesterday. There is a chest of
21 drawers with personal items in the drawers to - to give a
22 structural - it's by linear foot, so it's nine feet tall, so
23 it's good to stack it as high as you can.
24 There was a mattress and box springs, two portions of
25 the bottom of the bed to hold them. A tool chest, a large tool
564
1 chest. Tools. Computers. Various electronic bits and pieces,
2 electronic test equipment.
3 There was flatware, kitchen utensils, clothing, a
4 couple of small rugs, bedding, a telephone.
5 There were books and magazines.
6 Q. Mr. Henson's books and magazines?
7 A. There were some of mine.
8 Q. Okay. Have you finished describing the contents of the
9 moving van?
10 A. I'm just trying to remember as I speak. I'm -
11 Q. Okay. If you think of anything else you can let me know.
12 What would you say is the total fair market value of
13 the entirety of what you've just described as being on the
14 moving van? And I'm excluding the box - the three dozen boxes
15 of paper and files and family memorabilia? What is the fair
16 market value of everything else, tools and tool boxes and pieces
17 of a bed?
18 A. I don't know what is meant by fair market value.
19 Q. Fair market value as I mean it, ma'am, if I can clarify my
20 question is what a willing buyer is willing to pay a willing
21 seller.
22 THE COURT: Do you - under nonpressured circumstances,
23 right?
24 MR. ROSEN: Arm's-length transaction.
25 THE COURT: Right. So it's under nonpressured
565
1 circumstances.
2 MR. ROSEN: It's not a fire sale.
3 THE COURT: And we're not talking about a store
4 selling. We're talking about somebody in your position selling.
5 THE WITNESS: Thank you, Your Honor.
6 We did make an estimate of the goods for Customs
7 purposes, and I'm trying to remember what that estimate was.
8 BY MR. ROSEN:
9 Q. And, in fact, the estimate you were required to pay for
10 Customs is fair market value, isn't it?
11 A. I don't know.
12 Q. Well, did you make it?
13 A. I conferred with my husband about it -
14 Q. And -
15 A. - and with friends.
16 Q. And you filled out the form for Customs?
17 A. I filled out a list of what was on the truck.
18 Q. And you also filled out a form that says, 'The fair market
19 value of these items listed is' blank, and you wrote in a dollar
20 amount, right?
21 A. I didn't fill out the Customs form.
22 Q. Who did?
23 A. Mr. Henson did.
24 Q. Did you see the Customs form?
25 A. Yes.
566
1 Q. How much was the amount of money written on there as the
2 fair market value of these items that were enumerated as being
3 in the truck?
4 A. I don't recollect. I would have to look at it.
5 Q. When did you see it, ma'am?
6 A. The last time that I looked at - well, the - the - I didn't
7 keep a copy of the form, it went with the truck, but the last
8 time that I looked at the list of items was - and looked at the
9 total was the day that it went, the truck went, -
10 Q. And what day was that?
11 A. - which was September - that was September 15th.
12 Q. So on September 15th, take your mind back to September 15,
13 two weeks ago. At that time you saw the Customs form with the
14 list of - excuse me - with the fair market value of the items on
15 the truck shown on the form, right?
16 A. Yes.
17 Q. What was that number?
18 A. I don't recollect.
19 Q. Well, ma'am, please help me out. Try to think. Was it -
20 did it have a comma in it?
21 A. Probably - yes, it was -
22 Q. Probably.
23 A. - it was over a thousand, but - but I don't remember -
24 Q. Okay. It was over a thousand. Was it over 3,000?
25 A. No.
567
1 Q. Okay. So it's somewhere between a thousand and 3,000?
2 A. I think so.
3 Q. And that includes all of your personal effects that are on
4 that truck, right?
5 A. It included the personal effects of mine that were on the
6 truck, yes.
7 Q. And do you have any personal effects that have any value?
8 A. Not really.
9 Q. You have - I don't - I don't want to be personal, and I will
10 try to be very delicate. Your tastes and your attire in
11 purchasing clothes, is it the same as Mr. Henson's, as you've
12 described in buying secondhand clothes?
13 A. Yes.
14 Q. That's the way you - that's what you purchase for yourself?
15 A. When I do. I haven't purchased any clothes in three years,
16 but yes.
17 Q. When you purchased clothes back in February - in the period
18 of February, March 1998, is that the way you purchased clothes?
19 A. Yes.
20 Q. Okay. Ms. Lucas, are you aware that your husband has
21 received money in the way of, let's call them contributions,
22 from people who are, let me see, more sympathetic to his view of
23 life than they are the Scientology?
24 A. He has received some contributions, I believe.
25 Q. And has he received contributions by mail?
568
1 A. I believe so.
2 Q. Well, you opened the mail, so you tell me. How much has he
3 received since February of 1998?
4 A. I wasn't keeping track.
5 Q. Okay. What do you remember?
6 A. I remember seeing - opening an envelope that had a $20 bill
7 in it. I remember opening an envelope that had a check in it,
8 maybe a hundred dollars. Generally when I saw that an envelope
9 was a contribution to him, I turned - it just gave it to him and
10 I didn't take any note of it.
11 Q. But you opened it?
12 A. Yes.
13 Q. Uh-huh. Now in addition to mail I assume that Mr. Henson
14 informed you when he received contributions from another source
15 other than mail?
16 A. No.
17 Q. Well, you - you're aware that Mr. Henson received
18 contributions other than by mail? Are you aware of that?
19 A. I think people might have given him cash, but I don't know.
20 Q. And are you aware that he has received contributions by way
21 of payment to Paypal or another internet commerce repository?
22 A. He has mentioned that.
23 Q. How much has he mentioned he's received?
24 A. He hasn't told me any amounts.
25 Q. And have you not asked him?
569
1 A. No.
2 Q. You don't have any interest in how much?
3 A. No.
4 Q. Your husband recently was the beneficiary of an award, a
5 grant by some people in Germany for fighting Scientology, wasn't
6 he?
7 A. Yes, I saw the press release.
8 Q. How much did he get for that?
9 A. I don't know.
10 Q. Is that because you haven't bothered to ask him, that you
11 don't know?
12 A. I haven't asked him.
13 Q. And he's not mentioned it to you, his wife, how much he
14 received by way of this grant; is that right?
15 A. Mr. Henson does not tell me information that I might -
16 THE COURT: You should just -
17 THE WITNESS: - be required -
18 THE COURT: You should just answer yes or no, because
19 he told you how much of the grant and - answer yes or no,
20 otherwise he'll object. See, you have to answer yes or no,
21 unless you can't answer yes or no.
22 All he asked you was did he tell you how much the
23 grant was. Did Mr. Henson tell you how much the grant was?
24 THE WITNESS: No, he did them.
25 BY MR. ROSEN:
570
1 Q. All right. Ms. Lucas, before the Judge stopped you, you
2 were about to say something. Could I ask you to complete your
3 answer?
4 A. Mr. Henson tends to not tell me things that I might be
5 forced to divulge in testimony, deposition, or whatever, before
6 OSA.
7 Q. And he tends to do that - he has tended to do that from what
8 point in time, ma'am?
9 A. Some time in possibly '99 when we began to be picketed,
10 harassed, abused, persecuted, sued, et cetera, and deposed.
11 Q. You were used in 1996, not 1999, ma'am. Does that help
12 refresh your memory?
13 A. It helps me refresh my memory in that we were picketed. And
14 it came to our attention that our employers were being picketed
15 and that our neighbors -
16 MR. ROSEN: I move to strike. It's not responsive.
17 THE COURT: Your -
18 MR. ROSEN: The question was, was she - was Mr. Henson
19 sued in 1996.
20 THE COURT: No. Then there was a subsequent question.
21 MR. ROSEN: No. There - that's my pending question:
22 Would it help refresh your memory if I told you Mr. Henson was
23 sued in 1996.
24 THE COURT: Something came after that.
25 MR. ROSEN: I don't believe so. This witness is
571
1 making soapbox speeches again. I ask to strike it.
2 THE COURT: Wait, wait, wait.
3 Go back, Liz. Play it.
4 (Record played.)
5 THE COURT: Motion to strike is granted.
6 As I understand it, you were explaining why you and
7 Mr. Henson - Mr. Henson weren't disclosing information to you -
8 Mr. Henson wasn't disclosing information to you that could be
9 the subject of your having to testify about; is that right? Is
10 that what you said?
11 THE WITNESS: Yes, Your Honor.
12 BY MR. ROSEN:
13 Q. Ms. Lucas, how long has it been that back in - to what point
14 in time that you were responsible, as you've described to this
15 Court, for opening the mail, opening the bills, paying the
16 bills, maintaining the household account? How long?
17 A. Since about the time we were married.
18 Q. Okay. Ms. Lucas, do you remember being deposed on December
19 17th, 1998?
20 A. How could I forget.
21 Q. Good. Do you remember where it was?
22 A. I thought I was deposed only in the offices of Mr. Hogan.
23 Q. Do you remember who questioned you at that time?
24 A. 1998?
25 Q. Yeah.
572
1 A. I -
2 THE COURT: What month was it?
3 What month was it?
4 MR. ROSEN: I said December 17th.
5 THE WITNESS: If that was the first deposition or the
6 first 2004 examination, it was Ms. Kobrin and Mr. Cartwright,
7 but I don't remember if that was the date.
8 BY MR. ROSEN:
9 Q. Ms. Lucas, do you recall at that examination being shown
10 your bank records from this joint account, this household
11 account from 1995, and being asked the following question,
12 giving the following question, starting on the first page of
13 these, and the "these" refers to Exhibit 5, which I'll be happy
14 to hand up, the bank records from Wells Fargo, it reflects
15 deposits that say "NDMA" next to them.
16 "Are those payroll deposits?
17 "ANSWER: I don't know what that means."
18 Do you remember giving that answer?
19 A. Not that particular answer, no.
20 Q. It doesn't sound at all familiar to you?
21 A. Well, I remember that there were several acronyms that I
22 couldn't figure out what they were, I didn't know what they
23 were.
24 Q. Acronyms by way of letters that appeared on your bank
25 statements for the household account that was under your
573
1 control, right?
2 A. Yes.
3 Q. And continuing on in that deposition you were then asked for
4 an entry on the bank statement of November 15 - November 18,
5 1995. An entry at the bottom of the checking account that says,
6 quote, deposit AD, close quote.
7 Do you recall testifying you didn't know what that
8 was?
9 A. I probably did because I don't know what it is now.
10 Q. Okay. Do you recall - let's go - let's get more closer to
11 the filing date.
12 Do you recall being asked the following question and
13 giving the following answer:
14 "QUESTION: The next statement, April 16th, '97 to
15 20th of May '97 in the liquid assets section there's a 17 April
16 withdrawal of - it's the same account - of $3500. Do you know
17 what that was for?
18 "ANSWER: Not without - I don't remember what it was
19 for specifically. It may have gone into housekeeping account to
20 reimburse the payments my husband had made."
21 Do you remember giving that answer?
22 A. I don't remember that answer specifically.
23 Q. Remember being asked this question and giving this answer:
24 "Then below in the checking account box there's an
25 item, 5-95, $3,000 deposit on 25 of April. Do you know what
574
1 that was for
2 "ANSWER: Is that a deposit or a check? It must be a
3 check.
4 "QUESTION: It's a check. Do you know what that was
5 for?
6 "Well, I would guess that the money from the liquid
7 asset went into the checking account."
8 THE COURT: You know, I can't follow this at all. I
9 don't have a copy of this. I don't know what you're reading
10 from.
11 MR. ROSEN: I told you what I was reading from.
12 THE COURT: But I don't have it. So there's no way I
13 know whether what you're asking her is an accurate
14 representation of anything.
15 MR. ROSEN: Oh, I'm sorry, Your Honor. I represent it
16 as accurate if I'm purporting to read from a transcript. That's
17 inherent in what I'm doing.
18 THE COURT: Yeah, the -
19 MR. ROSEN: Okay.
20 THE COURT: The whole process is inappropriate.
21 BY MR. ROSEN:
22 Q. Okay. Let's go on. Let me take you up and I'm -
23 MR. ROSEN: I'm at 69. If Your Honor wants a copy
24 I'll be happy to photostat it during the lunch break.
25 BY MR. ROSEN:
575
1 Q. You now ask Ms. Henson about Mr. - excuse me, Ms. Lucas -
2 about Mr. Henson's bankruptcy schedule.
3 "QUESTION: Now Mr. Henson put in this, on this
4 document that his regular income from operation of business
5 Professional of Farm [phonetic], is $4200 a month. Do you know
6 if that's an accurate number?
7 "ANSWER: No.
8 "QUESTION: Does that mean, 'No, I don't know.'
9 "ANSWER: It means, 'No, I don't know.'
10 "QUESTION: Do you know what he was making at the time
11 he filed this August 1998 - this is the amended schedule?
12 "ANSWER: No, he did not tell me."
13 Do you remember giving those answers, ma'am?
14 A. I don't remember them particularly.
15 Q. Well, I'm confused now because you've testified in this
16 court that you knew what your husband was making, that you
17 looked at the invoices, that you opened the envelopes, that you
18 saw the invoices he sent out, you saw the checks he received and
19 the 1099 forms. You testified to all of that, right?
20 A. Yes, for different time periods.
21 Q. Well, let's look at the time period of August 1998. Here
22 you don't have any idea what your husband's making?
23 A. Didn't you say that deposition was in December?
24 Q. Right. And you were asked about events of August '98, the
25 August 4th, 1998 Schedule in Bankruptcy.
576
1 So are you saying in August of 1998 you weren't
2 opening the mail, you weren't checking your husband's invoices,
3 you weren't looking - seeing the checks that he was being paid;
4 is that what you're saying?
5 MR. ZLOTOFF: Your Honor, I'm going to - I'm going to
6 object because I thought that deposition transcripts except for
7 rebuttal were supposed to be marked and provided as part of
8 the -
9 THE COURT: The whole thing is inappropriate, what
10 he's doing. You have to ask a question and then if you want to
11 use it for impeachment, you have to provide the witness with a
12 copy of it. And - and then ask, when you're impeaching, ask
13 whether that was her testimony and whether she - she agrees that
14 it's the correct thing now. Nobody has copies of any of this,
15 and it hasn't been shown to impeach.
16 MR. ROSEN: Your Honor, I'm - I must beg Your Honor's
17 indulgence, since this is the first time I've ever appeared in
18 this court. I have appeared in 56 federal district courts of
19 the United States. I've never shown a witness an impeachment
20 testimony transcript.
21 I can certainly do it the way you want which is first
22 elicit the testimony and then read her the testimony, which is
23 inconsistent. Certainly I could do that.
24 THE COURT: And then I could follow along to find out
25 whether or not it was real or not.
577
1 MR. ROSEN: Yeah. Well, except Your Honor is now
2 telling me a rule that you apparently have that I must say is
3 foreign to the entire federal practice of my 34 years.
4 So let's try it this way.
5 BY MR. ROSEN:
6 Q. Ms. Henson - excuse me. Ms. Lucas, did you know how much
7 your husband was making in August of 1998? Yes or no.
8 A. I don't know.
9 Q. Did you know how much income your husband was receiving in
10 August of 1998?
11 A. I don't know.
12 Q. As of August of 1998 did you know what your husband's
13 monthly income was for the seven or eight months of that year?
14 You know, so much per month. Did you know that then?
15 A. I probably -
16 THE COURT: Did she know it then, in August of '98; is
17 that the question -
18 MR. ROSEN: In August of '98.
19 THE COURT: Not whether she knows it now, if she knows
20 it then.
21 BY MR. ROSEN:
22 Q. I'm sorry. Do you know it now?
23 THE COURT: Well, I just want to know what the
24 question is. You can ask whatever question you want. I just
25 want to know -
578
1 MR. ROSEN: I thank you. You corrected me.
2 BY MR. ROSEN:
3 Q. Do you know today as you're sitting here the amount, the
4 monthly income your husband had been received in the - in the
5 year 1998 as of August of '98 - up to August?
6 A. I don't remember.
7 Q. Ms. - Ms. Lucas, were you opening the mail addressed to your
8 husband in August of '98?
9 A. Yes.
10 Q. Were you examining the invoices your husband sent to clients
11 in 1998?
12 A. I occas- -
13 Q. Yes or no, ma'am.
14 A. I can't answer it yes or no.
15 Q. Well, I think the question can be answered yes or no.
16 THE COURT: If you'll let her explain why she can't
17 answer yes or no, you may get an answer.
18 MR. ROSEN: Okay.
19 THE COURT: I'm not going to direct her unless you ask
20 her that.
21 BY MR. ROSEN:
22 Q. The question is were - in August of '98 were you looking at,
23 did you have an opportunity to see invoices that your husband
24 sent to clients?
25 A. My husband sometimes made copies of his invoices. He
579
1 generally sent them by electronic mail. He also received checks
2 not through the mail, as a general rule. So I can't tell you
3 when I saw an invoice and when I didn't because he was
4 inconsistent about showing me copies.
5 If I asked him, because I was having to make a
6 quarterly report for income tax purpose, "What are you making,"
7 "What's" - you know, "What" - "What kind of estimate can we give
8 them," then he would sometimes produce some copies of invoices.
9 I would usually know approximately what he was making at any one
10 time.
11 There are certainly times when he did not - he
12 purposely did not tell me where he was working or what he was
13 making so that his employers would not be harassed.
14 MR. ROSEN: Objection, move to strike that.
15 THE COURT: Overruled.
16 MR. ROSEN: The question was whether she knew in
17 August of '98, had she seen the invoices her husband sent. It
18 was a simple question. It could have been answered yes or no.
19 THE COURT: Overruled.
20 MR. ROSEN: Your Honor, do I have to deal with - I'm
21 confused about something. You have allowed over my objection
22 testimony from this witness about harassment of some
23 unidentified sort - kind. Are you taking that for the truth of
24 it, that I have to rebut this? Because that's the reason I move
25 to strike it.
580
1 THE COURT: I don't tell you what's in my mind during
2 a trial. I make evidentiary rulings.
3 MR. ROSEN: But, Your Honor, I'm entitled to have
4 notice of whether or not you are taking these speeches about
5 harassment as for the truth.
6 THE COURT: No, you're not. You're not ent