Transcription of Motion Hearing 6th Feb 2019 - regarding the admissibility of testimony of Scott Jay Weitzman, forensic accountant
[13.54]
Judge: And then we have Mr Weitzman.
James McGee: Mr Weitzman – our concern is that
we do have graphs we do not have a report saying the information he reviewed why he did the graphs he did and what his opinions are going to be, again the same thing that we had with Dr Rudin the same thing we have exhibits without an explanation of what went into them and we would like a report, we would like to have something, cos
if they’re going to have a report and they’re going to talk to him about it then we would object as irrelevant with no good faith or they can make no offer of proof as to what he would actually opine to if they don’t know, so what they’re trying to do is present experts without giving us written notes what they’re going to say and that goes against everything about discovery that I listed in detail in my motion.
Melissa Rodriguez: Mr Weitzman reviewed the defendant’s bank accounts, it’s all we got, and his reports are labelled in terms of what each one is, so there’s cash withdrawals, there’s expenditure there’s an analysis of what he believes the defendant spent on materials and things like that, it’s solely the defendant’s money that he received from Joseph. Some of the money that is attributed to his accounts is anything that was written to IDesign which was the defendant’s company, or anything that was written to Charles Merritt.
J: So he’s going to say that there was a cheque that was written to IDesign, there was a cheque that was written to Mr Merritt, there was a cash withdrawal in some casino, there was whatever?
MR: Correct. Each one of the exhibits that he prepared is labelled in terms of what it is.
JM: And
the other aspect of the defense’s objection is the timing as I said in our motion we said to the jury in our opening statement we had our financial accountant reviewed everything – the government doesn’t, and the government then after that, after opening statement, after testimony started, decided that’s probably a good idea and then they started their investigations. They have to establish good cause as to why this was not done before and I will defer to the People to express what good cause they think they had
to wait until after trial started to start this part of the investigation
to where it affected not only our presentation, our plans, and then our defense and then our presentation to the jury during opening statement, and now that’s going to change because they’re adding onto the investigation without being a reason why they didn’t do it before other than inadvertence or oversight, but neither of those are good cause, it has to be newly discovered evidence which I don’t think they have it.
J: I don’t think there’s any requirement of necessity or good cause for additional investigations [] disclosure.
JM: But there is a requirement for good cause to give discovery outside of the 30 days before trial.
J: That’s true if it’s material they had but it’s obviously not true for new material.
JM: And none of it’s new, that’s what I, that’s our point. They’re going based on the financial records that they had since 2014.
MR: If I can be heard briefly on that your honor?
J: Just a second, certainly when Mr Weitzman testifies you can ask him when he was first retained to review information and I’m guessing he’s going to say it was after January 7th 2019, so you know you’ll have that and if that’s something you wanted to argue in closing argument you will be able to do that, um,
MR: I do need to correct the allegation…
J: …
the testimony seems like it’s terribly straightforward as to what it shows or doesn’t show.
Rajan Maline: No your honor I’ll have to weigh in on this, what they’re trying to do is, what they gave us is withdrawals from Merritt from the account, everything that Merritt took out from his account this person Weitzman made a graph a very [] graph
guess what, guess how much of the percentage of withdrawals Mr Merritt takes is attributed to gambling, if we had to guess between zero and 100%? Of course there’s no foundation for it, 100% of what he did he attributes to gambling, of every withdrawal, that’s essentially what they’re trying to do here, it’s not just outlining the withdrawals and payments made to Merritt because the records speak for themselves on that,
what they want Mr Weitzman to say is that all this is gambling money and he only spent a fraction of that on costs of goods for the waterfalls uh out of about you know let’s say 100 thousand he spent 2 thousand on waterfalls. He only looked at the withdrawals or payments to Merritt he doesn’t know that Merritt went out and then bought costs of goods and so forth,
it’s a very misleading presentation that they want to show in front of the jury so that’s really what they want to do.
J: So that would be good for you to be able to expose that right?
RM: It would be and
believe me I plan on exposing it if that’s what he’s going to do but I just think it’s a waste of time because it, if you’re going to give an opinion on use of cash you have to look at all the records you can’t just look at withdrawals and then assume all of it was used for gambling.
MR: Your honor may I be heard?
J: Sure.
[20.04] MR: First of all we actually had contracted with our in-house accountant in June of last year, prior to going to trial. We gave him the defendant’s bank accounts and he started doing a compilation of activity from casinos and things of that nature.
Then in November we received a report from the accountant that the defense hired and that accountant purports to put all of the essential elements and financial incentives to Dan Kavanaugh. And when we started looking at all of the information
which was not actually provided to us I had to call their accountant in order to get the information that he reviewed, then we realised ok this is a bigger job than our in-house accountant can handle because he also has several other things that he does.
So at that point we took the work that he had done and gave it to a financial accountant to look at to determine how reputable is this report from their accountant, and look at the work that our accountant did in-house and come up with your own analysis to determine what his casino withdrawal activity and things of that nature is.
This was well before opening statements so this characterisation that we hadn’t hired him until January 7th is actually incorrect.
J: So is Mr Weitzman, will he be a rebuttal witness in response to their witness or is it someone you’ll put on in your case in chief?
MR: I believe at this point it is somebody we’re going to put on in our case in chief and
his analysis of the bank records is what’s contained in the reports that they have and those are the bank records that they’ve had for several years.
J: Ok so everyone has the bank records everyone has an accountant looking at the bank records and surprisingly different retained experts come up with a different opinion!
RM: No, that’s not what it is, if that’s what it was - no problem, bring it on.
They’re not doing that because our expert used the proper standards, the proper accounting standards. What this person has done is just essentially looked at all the withdrawals and payments to Merritt and then said it’s all spent at the casino. And 2 thousand of whatever the amount – 100 thousand – is spent on costs of goods for waterfalls
with no basis whatsoever behind it. That’s a big difference than what we gave them which is a certified forensic accountant’s statement using CPA standards that are nationally accepted accounting standard.
JM:
Let me correct a couple of things that Mr Maline just said. One,
we’re inferring what they’re going to testify to because they’ve offered no written opinion as to what he’s actually going to say. We’re just guessing at this point, but that may not be right because they didn’t actually write what his opinion is, second, they haven’t provided us they just called us now that Michael Neal (sp.?) with the District Attorney’s Office […] I work with reviewed everything wrote reports provided to their expert – they didn’t provide those to us. So they provided information to their expert that they didn’t provide us. So we would like those. If he made any opinions that were shared with their expert Mr Weitzman we would like those. We would like all the information that his expert relied upon. We haven’t received those yet. The stuff that, the opinions that Mr Maline is inferring from the reports we don’t have anything like that in writing, our expert gave a detailed opinionated report saying what I found and here’s the evidence that supports it. So there’s a distinction between what’s been given and what’s been received. And I don’t want the court getting the impression that we know what their opinions going to be, because they won’t provide it.
J: Will you provide either a report or a summary of the conclusions to be offered by Mr Weitzman?
MR: I will be more than happy to print out the information that we have provided to the defense that details his findings.
He didn’t write a separate report he gave us graphs and then he has charts which I will be more than happy for the court to look at – they are very simple and very explanatory in terms of what they are and they are based solely on the defendant’s bank records.
JM:
We do have the charts and the graphs.
J: Ok so…
JM: What they mean, or what they’re going to say it means?
MR: I’ll be more than happy to print them out because they are...
J: …Well they have them, they have them, so that’s not an issue.
MR: It’s not really anything that’s subject to this grand interpretation your honor, they’re pretty clear.
J: Alright well if you can print them out let me take a look at them and then I’ll see.
MR: Absolutely.
J: And what about the underlying information that was given to Mr Weitzman, that he reviewed?
MR: He reviewed just the same thing, a compilation of bank record information.
J: Did the in-house accountant do any preliminary reports that were given to Mr Weitzman?
MR: He did not do any preliminary reports, what he did was an Excel spreadsheet.
J: Ok. Alright well print out all the charts and graphs and if I can figure out what they say that means anybody can figure out what they say. [laughing] Cos that is definitely NOT my area of expertise so that’s a pretty low threshold. So if you can get that to me.
MR: I can print them out right now.
J: Uh, you can give them to me tomorrow morning.
JM: And if there’s any discussions that they had with the experts they’re talking about what opinions or which direction they’re going we would like that put down into a written form and supplied to the defense as required by law.
J: Well I don’t think they have to detail all of their discussions they’ve had with their expert.
JM: But if they do have the detail
if there are like conclusions of what they will testify to that’s like interview…
J: Oh sure yeah I mean if he says here’s my “report” – it’s all in my charts and graphs – that’s my report, ok then that’s it, but if he says now let me go over these and let me tell you what they mean then yes I would agree you’re entitled to that summary.
JM: That’s all we have.
J: If there is such a summary that would be helpful.
JM: Yes.
J: But I’ll still look at the charts and graphs. [27.13]
