Page 1

IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
CASE NO: 09-062943 07
RAZORBACK FUNDING, LLC, et al,
Plaintiffs,
vs.
SCOTT W. ROTHSTEIN, et al,
Defendants.
________________________________/

DAY 6 - P.M. SESSION
DEPOSITION OF SCOTT W. ROTHSTEIN

DATE TAKEN:
TIME:
PLACE:

Thursday, December 19, 2011
12:45 p.m. - 5:00 p.m.
James Lawrence King Federal
Justice Building
99 Northeast Fourth Street
Miami, Florida 33124

Examination of the witness taken before:

Terri Wright
United Reporting, Inc.
1218 Southeast Third Avenue
Fort Lauderdale, Florida 33316
(954)525-2221

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2

IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA

3

CASE NO:

4

EDWARD J. MORSE, CAROL A. MORSE,
and MORSE OPERATIONS, INC.,

10-2411 CACE (19)

5
Plaintiffs,

6
vs.

7
SCOTT W. ROTHSTEIN, et al,

8
9

Defendants.
________________________________/

10
11

AMY ADAMS, ET AL, PLAINTIFF VS. SCOTT ROTHSTEIN, ET AL.
CASE NO: 11-CV-61688-JIC/LSS

12
Case No:

10-03767 RBR

Case No:

10-03802-RBR

Case No:

11-02288-RBR

Case No:

11-02368-RBR

Case No:

11-02473-RBR

Case No:

11-02604-RBR

Case No:

11-02605-RBR

13

STETTIN VS. GIBRALTAR PRIVATE
BANK & TRUST CO.

14
STETTIN VS. CENTURION STRUCTURED
GROWTH LLC, ET AL.

15
16

STETTIN VS. FIDELITY CHARITABLE
GIFT FUND

17
18

STETTIN VS. TD BANK, N.A.

19
20

STETTIN VS. REGENT CAPITAL
PARTNERS, LLC ET AL

21
STETTIN VS. MAPLE LEAF DRILLING
PARTNERS, ET AL

22
23

STETTIN VS. DON KING PRODUCTIONS

24
25

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2
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4
5

APPEARANCES FOR SCOTT ROTHSTEIN:
LAW OFFICE OF MARC S. NURIK
1 East Broward Boulevard
Suite 700
Fort Lauderdale, Florida 33301
BY: MARC S. NURIK, ESQUIRE
APPEARANCES FOR THE CHAPTER 11 TRUSTEE,
HERBERT STETTIN:

6
7
8

BERGER SINGERMAN
350 East Las Olas Boulevard
Suite 1000
Fort Lauderdale, Florida 33301
BY: CHARLES H. LICHTMAN,, ESQUIRE

9
APPEARANCES FOR THE TRUSTEE:

10
11
12
13
14

GENOVESE, JOBLOVE & BATTISTA, P.A.
100 S.E. 2nd Street
Suite 4400
Miami, Florida 33131
By: JOHN. H. GENOVESE, ESQUIRE
DAVID C. CIMO, ESQUIRE
THERESA M.B. VAN VLIET, ESQUIRE
JESUS SUAREZ, ESQUIRE
ROBERT F. ELGIDELY, ESQUIRE

15
APPEARANCES FOR RAZORBACK:

16
17
18
19
20
21
22

CONRAD & SCHERER, LLP
633 South Federal Highway
Eighth Floor
Fort Lauderdale, Florida 33302
By: WILLIAM R. SCHERER, ESQUIRE
ERIC RAYMAN, ESQUIRE
IVAN J. KOPAS, ESQUIRE
and
KOZYAK, TROPIN & THROCKMORTON, P.A.
2525 Ponce de Leon Boulevard
Ninth Floor
Coral Gables, Florida 33134
By: HARLEY S. TROPIN, ESQUIRE

23
24
25

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APPEARANCES FOR PLATINUM PARTNERS VALUE ARBITRAGE
CENTURION STRUCTURED GROWTH, LLC:

2
3
4
5

GOLDSTEIN, TANEN & TRENCH, P.A.
One Biscayne Tower, Suite 3700
Two South Biscayne Boulevard
Miami, Florida 33131
By: SUSAN E. TRENCH, ESQUIRE
and
HARVEY WERBLOWSKY, ESQUIRE

6
APPEARANCES FOR LEVINSON'S JEWELERS:

7
8
9

KOPELOWITZ OSTROW FERGUSON WEISELBERG KEECHL
200 SW 1st Ave
Suite 1200
Fort Lauderdale, Florida 333012073
BY: JAN ATLAS, ESQUIRE

10
11
12
13
14
15
16
17
18

APPEARANCES FOR THE COMMITTEE OF
UNSECURED CREDITORS:
AKERMAN, SENTERFITT
One Southeast Third Avenue
25th Floor
Miami, Florida 33131-1704
By: MICHAEL GOLDBERG, ESQUIRE
APPEARANCES FOR T.D. BANK:
GREENBERG TRAURIG, P.A.
401 E Las Olas Blvd Ste 2000
Fort Lauderdale, Florida 33301
By: HOLLY SKOLNICK, ESQUIRE
DONNA EVANS, ESQUIRE
MARK P. SCHNAPP, ESQUIE

19
20
21
22
23

APPEARANCES FOR RLI ZURICH INSURANCE COMPANY,
COLUMBIA INC. & ZURICH INSURANCE:
CLAUSIN MILLER
One Chase Manhattan Plaza
39th Floor
New York, New York 10005
BY: SCOTT L. SCHMOOKLER, ESQUIRE

24
25

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2
3

APPEARANCES FOR FEDERAL INSURANCE COMPANY:
1430 South Dixie Highway
Suite 204
Coral Gables, Florida 331463127
By: ALEX HOFRICHTER, ESQUIRE

4
APPEARANCES FOR MORSE:

5
6
7

TRIPP SCOTT, P.A.
110 S.E. Sixth Street,15th Floor
Fort Lauderdale, Florida 33301
By: JOHN M. MULLIN, ESQUIRE
GEORGE WALKER, ESQUIRE

8
9
10
11
12
13
14
15

APPEARANCES FOR CAROL MORSE, TED MORSE & MORSE
OPERATIONS:
LAW OFFICES OF ROBERTA DEUTSCH
2499 Glades Road
Suite 110
Boca Raton, Floridan 33431
By: ROBERTA M. DEUTSCH, ESQUIRE
APPEARANCES FOR EMESS CAPITAL, LLC:
KLUGER KAPLAN SILVERMAN, KATZEN & LEVINE, PL
201 S Biscayne Blvd Fl 17
Miami, Florida 331314
BY: CASEY H. CUSICK, ESQUIRE

16
APPEARANCES FOR ST. PAUL FIRE & MARINE:

17
18
19
20
21
22
23

MILLS PASKERT DIVERS P.A.
100 N Tampa St Ste 2010
Tampa, Florida 336025145
BY: JOHN A. BLACK, JR., ESQUIRE
APPEARANCES FOR ROSANNE CARETSKY:
BILLING COCHRAN LYLES
515 E Las Olas Blvd
Floor Six
Fort Lauderdale, Florida 333012296
By: TUCKER CRAIG, ESQUIRE
DANIEL S. GELBER, ESQUIRE

24
25

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2
3

APPEARANCES FOR FEPICT, MS GROUP:
NYSTROM, BECKMAN & PARIS
One Marina Park Dr., 15th Flr.
Boston, MA 02210
By: JACK SEIGAL, ESQUIRE

4
APPEARANCES FOR MICHAEL SZANFRANKSI:

5
6
7
8
9
10
11
12
13
14
15

LYDECKER, DIAZ
1221 Brickell Avenue
Floor 19
Miami, Florida 33131
BY: CHRISTOPHER G. BERGA, ESQUIRE
MIGUEL J. CHAMORRO, ESQUIRE
APPEARANCES FOR GIBRALTAR:
STEARNS WEAVER MILLER, et al.
150 W Flagler St Ste 2200
Miami, Florida 331301545
BY: MARY BARZEE-FLORES, ESQ.
MATTHEW DATES, ESQUIRE
APPEARANCES FOR FRANK PREVE:
PODHURST ORSEK
25 W Flagler St Ste 800
Miami, Florida 331301720
BY: RAMON A. RASCO, ESQUIRE

16
17
18
19

APPEARANCES FOR LEVINSON PEARSON & ASSOCIATES,
WATCH U-WANT, INC.:
KOPELOWITZ OSTROW
200 SW 1st Ave Ste 1200
Fort Lauderdale, Florida 33301
By: BART A. HOUSTON, ESQUIRE

20
APPEARANCES FOR THE US GOVERNMENT:

21
22

99 N.E. 4th Street
Miami, Florida 33132
BY: LAWRENCE LAVECCHIO, ESQUIRE

23
24
25

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2
3
4
5
6

APPEARANCES FOR FRANK SPINOSA:
SCHLESINGER AND COTZEN, P.L.
799 Brickell Plz Ste 700
Miami, Florida 33131
BY: MICHAEL J. SCHLESINGER, ESQUIRE and
MICHAEL COTZEN, ESQUIRE
and
SAMUEL J. RABIN, ESQUIRE
799 Brickell Plaza
Suite 606
Miami, Florida 33131

7
8
9
10
11
12

EXAMINATION INDEX

13
PAGE

14
15
16

SCOTT W. ROTHSTEIN
DIRECT BY MR. RASCO
DIRECT BY MR. CRAIG
FURTHER DIRECT BY MR. GELBER

1545
1605
1681

17
18
19
20
21
22
23
24
25

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EXHIBIT INDEX

2

PAGE
PREVE'S

3
206

Binder of e-mails.

1548

207

E-mail dated 7/27/07.

1606

4
5
6
CARETSKY'S

7
208

Portion of the Third Amended Complaint.

209

Ira Sochet Answers & Objection.

1611

8
1616

9
10
11

210
ROTHSTEINS 001132-11315, Four Still Shots
from TD Bank.
211
TD/Razor 001855-1860, E-mail dated
10/29/08.

1631

1635

13

212
TD/Razor 001841-1851, E-mail dated
12/17/08.

14

213

E-mail dated 8/17/2009.

1650

15

214

E-mail dated 9/15/2009.

1662

16

215

E-mail dated 9/17/2009.

1665

17

216
Trustee/Spinosa 000422-423, E-mail dated
9/17/09.

1624

12

1666

18
217

E-mail dated 9/17/2009.

1668

218

PRODA 018604, Letter dated 10/29/2008.

219

TD/Razor 001863, Letter dated 12/10/2008.

220

12/17 Investor Meeting.

19
1683

20
1686

21
1690

22
23
24

221
Page 30 of Scott Rothsteins's deposition
taken 12/13/2011.
222
Page 1181 and 1182 of Scott Rothstein's
deposition taken 12/16/2011.

1703

1703

25

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2
3

DIRECT EXAMINATION
BY MR. RASCO:
Q

Back on the record.

I'm going to mark as

4

Composite Exhibit 206 the whole binder that I've handed

5

to you, including all the e-mails you signed.

6

A

7

sure?

8

Q

9

Do you want to put a label on it just to make

I think we already did it on one of them or we

can label that one.

10

A

11

(Whereupon, Preve's Exhibit No. 206 was marked

12
13
14
15

Whatever your preference.

for identification.)
BY MR. RASCO:
Q

So, the last e-mail that we were discussing was

in Tab One?

16

A

Yes.

17

Q

The "sit tight" e-mail from October 31, 2009.

18

And my question is brief, it's just the second paragraph

19

of Frank's e-mail to you, the last one from the top

20

says:

21

A

Yes, sir.

22

Q

Do you recall if Frank Preve did indeed call

23
24
25

I will call in 10 minutes.

you 10 minutes after that e-mail?
A

My recollection is is that he may have, but my

recollection is also that I never had a conversation

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with him.

2

Q

3
4
5
6
7

You don't recall having a conversation with

either him or George Levin while you were in Morocco?
A

I don't have any specific recollection of

talking to them.
Q

No phone calls while you were there, just

e-mails and text messages?

8

A

Just e-mails and text messages.

9

Q

If you go back to the beginning of Tab One, the

10

second e-mail there is titled "me and you"?

11

A

Yes, sir.

12

Q

And it's the October 30, 2009 e-mail.

13

states:

14

only by me.

15

as it seems, I love you.

16

to me and I let you down.

17

All my love, forever, Scott.

It

I am at the lowest point in my life, caused
Just know as F'd up as I am and as F'd up
You have been a true brother
I can never be sorry enough.

Do you recall this e-mail?

18
19

A

I do.

20

Q

Were you being sincere when you wrote that

21

e-mail?

22

A

Yes.

23

Q

So, what are you sorry for?

24

A

I let the entire Ponzi scheme blow up.

25

Q

And what do you mean by him being a true

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2

brother to you?
A

He was -- I mean, if you look at all the e-mail

3

traffic you can tell that other than Debra he was

4

probably the person closest to me in the entire Ponzi

5

scheme.

6

us, at least that's what I was led to believe during the

7

course of our relationship.

8

a real relationship.

9
10
11

Q

I mean, it was very little that stood between

I thought we had developed

Did you have any cause to doubt this at any

time in your relationship with Frank Preve?
A

No, not during the course of it.

You know,

12

afterwards, hindsight is always 20/20 when you are privy

13

to e-mails afterwards between other people.

14

simple thing as thinking someone is on board with

15

something like the Ari Glass thing, not knowing where

16

his head was and then learning afterwards by reading

17

e-mails and hearing things that he was actually trying

18

to play me.

19

It's a

The truth is, you never really know who's

20

involved in fraud and at what level until you get to

21

look at everything.

22
23

Q

Are you suggesting that Frank Preve was trying

to play you?

24

A

No.

25

Q

Okay.

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A

No.

I mean to some extent.

Listen, on the

2

business level, even an illegal business level of what

3

we were doing we were all playing each other.

4

what happens in a fraud, I mean, especially a fraud of

5

this magnitude.

6

That's

Szafranski is the perfect example.

When I read his e-mails after I got done, after

7

I came back and I was in the middle of cooperating and

8

read e-mails, he's adding things to this Ponzi scheme

9

that I didn't tell him to add.

He just decided, I

10

suspect, that they were good sales techniques for him.

11

He's lying about being the only person selected by the

12

bar to review these files and talking about his ability

13

to look at things.

14

and doing whatever it takes to bring in investors.

15
16
17
18
19

He's just kind of running with it

And so you see those kind of things.

So

everyone is really playing everybody.
Q

During the course of the Ponzi, do you know if

Frank Preve ever lied to you?
A

I'm pretty sure he did.

I mean, I don't have

20

the specific lies he told me.

21

e-mails and we compare them to what was going on behind

22

the scenes, again, hindsight is 20/20.

23

where he sent an e-mail to me and then forwarded it

24

surreptitiously to somebody else with a comment on it

25

contrary to what he told me.

If you pull out all the

Now I'm seeing

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Yes, that happened from time to time.

2

again, in a fraud of this magnitude, I mean, you have to

3

understand that when you're dealing with people who are

4

lying at the get-go people also tend, fortunately or

5

unfortunately depending on how you look at it, to lie to

6

each other.

7
8
9

Q

But,

It's just what happens.

As you sit here today do you recall a specific

instance where Frank Preve lied to you?
A

Let me think about it for a second.

You're

10

asking me to rehash years and thousands and thousands of

11

e-mails and a specific sentence.

12
13

Q

I understand.

I don't have a specific e-mail

about it, just asking your recollection.

14

A

If I run across one I'll let you know.

15

Q

Turning a little further down Tab One to a

16

November 1, 2009 e-mail from Frank Preve to Frank

17

Spinosa.

18

A

Yes.

19

Q

The subject is R.A.A. trust accounts.

It has some account numbers in it.

It

20

states:

Frank, I'm a little concerned about Scott's

21

well-being at the moment and how that might impact the

22

integrity of the trust accounts whose proceeds have been

23

assigned to Banyon.

24

housekeeping, I think you ought to flag any unusual

25

activity in the following accounts.

Just for the sake of good

He lists them and I

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will have our legal counsel contact you shortly.
You never saw this e-mail, I take it?

2
3

A

Only after the Ponzi scheme exploded.

4

Q

And the statement that he makes about the

5

integrity of the trust accounts, do you disagree with

6

this statement about him being concerned about the

7

integrity of the trust accounts?

8
9

A

I wasn't privy to this e-mail.

what he was honestly concerned about.

I don't know
I think he's

10

writing an e-mail to Spinosa to stop me from taking any

11

more money out of the accounts.

12

would just be guessing.

13

Q

Okay.

Other than that, I

Moving a little further down there we

14

talked about the "sit tight" e-mail that had Exhibit A

15

on the front of it?

16

A

Right.

17

Q

The following one has Exhibit B.

18

A

Sure.

19

Q

And there's an e-mail right after, you know,

20

lower down on that first page, there's the one you said

21

you explained to him that's not the shortage.

22

above that Frank responds to you - it's a November 1,

23

2008 e-mail:

24

tight:"

25

simply because of his lack of knowledge he wasn't very

Right

As you know - and the subject is "sit

As you know we met with Mark last night but

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helpful.

In your opinion, do the investors have much of

2

a case against TD Bank given lock letters, balance

3

reports, et cetera.

4

everyone this morning.

Just trying to give direction to
Hope to see you soon.

I know you've already testified to a certain

5
6

extent about this e-mail, but my first question is:

7

Frank the first person that you're aware of that

8

suggested the possibility of a case against TD Bank?

9

A

To the best of my recollection, yes.

10

Q

Did you have additional follow-up

Was

11

correspondence and e-mails and text messages regarding

12

the possibility of a case against TD Bank?

13

A

I don't have any specific recollection, other

14

than if you have some e-mails that would refresh my

15

recollection, but I don't recall writing to him very

16

much more.

17

believe, after I returned on the 2nd or the 3rd.

18

Q

Certainly I didn't write to him, I don't

Right.

So, on November 1st, the one -- you did

19

respond though, right above it stating:

20

have a case.

21

we meet Tuesday afternoon around three?

22

never occurred, right?

Yes, they do

I will explain how when I get back.

Can

That meeting

23

A

No, sir, it never occurred.

24

Q

And did you ever explain to him at a later date

25

after that e-mail was sent, what case he had against TD

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Bank?

2

A

No, sir.

3

Q

Do you recall sending a text message while you

4

were in Morocco to both George and Frank indicating that

5

you had just completed a list of info that they need to

6

go after TD Bank?

7
8
9

A

It's very possible that I did.

If you have a

copy of it, it would help.
Q

Just assuming that that's what it said, that

10

I've completed a list of what's needed to go after TD

11

Bank .

12

A

Does that sound familiar to you?
I can't -- I may have, I may not have.

You're

13

asking me to assume something, without seeing it I can't

14

tell you for certain.

I need to see it.

15

Q

Okay.

You don't independently recall?

16

A

I don't have an independent recollection, no.

17

Q

But it's not a possibility you rule out?

18

A

I don't rule it out.

19

Q

The next e-mail after that Exhibit B is the

20

November 3rd, exchange between George Levin and Howard

21

Gruverman.

22

that you had confirmed that he had an accomplice at TD

23

Bank.

24
25

The 10:33 p.m. e-mail from George indicates

Do you recall in what manner you would have
informed George of that?

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A

The only thing that I recall writing to George

2

and Frank about at as I sit here today is that e-mail we

3

just looked at.

4

more of it, I would need to see the text message to tell

5

you.

6

Q

If I sent a text message detailing any

You don't recall a specific conversation or

7

anything like that where you may have indicated to

8

George or Frank that you had an accomplice at TD Bank?

9

A

10

them.

11

I remember them being on the list of people that I just

12

did not want to speak to.

There wasn't one.

I don't recall speaking to

As a matter of fact, I recall just the opposite.

When I say list, mental list.

13

Q

Why were they on that list?

14

A

I don't really know, but in my head I didn't

15

want to speak to them.

16

terrible frame of mind and I did not.

17
18
19
20

Q

I just didn't.

I was in a

Do you recall the last time you spoke to either

George or Frank over the phone?
A

To the best of my recollection it was before I

left for Morocco.

21

Q

Do you recall either conversation with the

22

specifics?

23

A

At this moment I do not.

24

Q

If you can turn to Tab Two, please.

25

A

Okay.

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Q

It's six pages in, Tab Two, this is the e-mail

2

we were discussing earlier.

3

said it was April 29th and I was looking for April 29th,

4

but it was an April 20th e-mail from you to Frank with a

5

subject being, Centurion.

6

few, I'm working on another bar response from Adria so I

7

can continue this farce.

And it states:

Give me a

You had indicated on Friday in your testimony

8
9

I didn't -- the transcript

that that was an indication to you that Frank by that

10

time knew that the bar thing was something you had made

11

up; is that right?

12

A

It was one of many indicators.

13

Q

Okay.

14
15
16
17

And the farce that you're referring to

in that e-mail is the Ponzi scheme generally?
A

No, I think the farce I'm referring to is the

nonsense with the bar that didn't exist.
Q

Did you ever have a conversation with Frank

18

telling him that Adria wasn't a real person, that you

19

weren't actually meeting with Adria?

20

A

I didn't have a conversation specifically

21

saying -- well, first of all I never would have said

22

Adria wasn't a real person because she was a real

23

person.

24

kind of business.

25

I just wasn't doing business with her, not this

I had conversations with Mr. Preve regarding --

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I don't know the best way to really relate this to you.

2

I never said to Frank the bar thing is a scam.

3

along after the beginning of it we were kind of in the

4

middle of it, I knew that Frank knew it was a scam.

5

All

Because you have to understand when Frank, and

6

here's how you measure this, when Frank really wants

7

something he didn't know; in other words, he is really

8

chasing a piece of information, the man is far from

9

stupid, he knows how to get it.

10

He knows there are all

kinds of ways.

11

He joked around with me from time to time on,

12

do you think we're ever going to be able to produce any

13

letters about this bar thing to anyone?

14

know.

15

Q

That was a conversation?

16

A

Yeah.

17

I said no, you

He also told me he spoke to George and

then speaking to a guy name Mac Melville or Melvin.

18

Q

Yeah.

19

A

And that Mac wanted to speak to the bar and Mac

20

wanted to jump in.

21

we're not getting anyone else involved.

22

Q

25

I mean,

Well, hold on a second.
Go ahead, you can finish.

23
24

And I said absolutely not.

A

Go ahead.

That's really the end of the

conversation.

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Q

1

Okay.

But based on the various indicators,

2

some of which we've discussed, I'd say middle 2009 or

3

April of 2009 Frank knows the bar thing is not real?

4

A

By April of 2009?

5

Q

Yeah.

6

A

Yes, Frank, I'm confident, knew it was not

7

real.

8

Q

Based on the --

9

A

I don't know what he was telling George.

10

Q

Based on the indicators that we've discussed so

11
12

far?
A

Just based upon his overall knowledge of

13

everything and the fact that he didn't push me for

14

information that would have disclosed whether or not it

15

was or was not real and he just kind of played along

16

with it.

17

Q

Okay.

18

A

Yes.

19

context.

20

sit here today, I don't have a specific recollection of

21

saying the bar thing is a scam.

22

I did during the course of the conversation, but I just

23

don't have, as I sit here with so much in my brain, I

24

just don't have a specific recollection.

25

Q

You have to take the whole thing in

You can't take individual pieces out.

Okay.

As I

It's very possible that

If you could turn - it's quite a few

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pages in - November, sorry, September 22nd, 2009

2

e-mail.

3

A

Same tab?

4

Q

Same tab, yeah.

5

the fan".

6

A

That's descriptive.

7

Q

You joked around a lot in your e-mails with

8

The subject is, "the shit hit

I got it.

Frank, is that fair?

9

A

We joked around all the time.

10

Q

Both of you did.

11

A

With a lot of underlying truthfulness in it.

12

Q

The second page by the bottom e-mail, it's the

13

page marked, FP112310.

14

the e-mail is September 22, 2009, you to Frank:

15

Bro, but I walked into a shit storm of insane magnitude

16

this morning.

17

auditors and they were all over me about the

18

inconsistent funding and they were contemplating

19

shutting me down on the deal funding.

22

The subject is -Sorry,

Adria was waiting for me with two

Why would you send an e-mail like that to Frank

20
21

You state:

if you he knew that it was not a real thing?
A

I sent a lot of e-mails to Frank that were

23

meant for other's eyes.

24

Frank that Frank and I had discussed some of them and

25

some I just sent gratuitously.

I sent a lot of e-mails to

I sent a lot of e-mails

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to Frank that I assumed that he would be passing on to

2

others who were asking a lot of questions.

3

Q

Including George Levin; correct?

4

A

Very possibly George, yes.

5

Q

The next one says, Frank says:

6

have to ask for a meeting with the bar.

7

Broward or Tallahassee?

We're going to

And then you respond that you're going to set

8
9

Should it be

up a conference call with Adria and her boss.
And then Frank mentions Mac.

10

He says:

Can we

11

have Mac Melvin, George's litigator, on the conference

12

call?
Then your response is:

13

Not really a great idea

14

but if you think it will help, sure.

15

not.
I take it it's fair to say you were bluffing

16
17

Don't see why

there?

18

A

Yes.

19

Q

Do you think Frank --

20

A

Bluffing for people other than Frank.

I mean,

21

at this stage it's pretty clear to me that, again, you

22

have to put everything in context, there's clearly a

23

massive fraud going on that Frank is clearly aware of.

24

Go back and look at the e-mails.

25

At this time - and you can see it develops into

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all of a sudden exactly what I thought could happen is

2

happening, Frank is sending this to George.

3

way the e-mail traffic works the second you put George's

4

name on the CC all the prior e-mails go to him.

5

Because the

So, it gives George a picture of, I suspect,

6

the picture that Frank wanted to paint for George or

7

that Frank wanted to paint for the hedge funds, that I

8

wanted to paint for the hedge funds.

9
10
11

Q

Would this be something that would give comfort

to both George and Frank?
A

Give comfort to Frank?

I don't think anything

12

was going to give comfort to Frank at this stage.

13

in September and I'm scrambling for huge money.

14

Q

We're

Then you do respond -- Sorry, then Frank

15

responds, CCing George:

16

pulls this BS about the accounts not being blocked.

17

how she has no nexus to us as the assigned beneficiary

18

of the matured funds.

19

We need an attorney when she

And then you -- sorry, George responds:

20

we don't need Mac.

21

her then we might or might not need Mac?

22

Or

Frank,

What we need is a face-to-face with

By this time, the conference call, the

23

conference call with Adria where there were certain

24

members from the hedge fund group present in your

25

office; do you recall that?

That was from April.

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A

Yes.

2

Q

And Frank and George were both present, right?

3

A

I don't recall who was present.

4

Q

You don't recall whether either of them was

5

present?

6

A

I don't recall who was present.

7

Q

You do know some of the hedge fund guys were

8
9

there?
A

10
11
12
13

I do recall that, yes.
I think at least Frank was on the call.

Q

Okay.

Do you know if he was in your office or

was he on the call itself?
A

You know, I don't recall one way or the other.

14

I recall originating the call from my office, but I

15

don't recall where all the players were.

16
17

Q

And who was the person that was acting as

Adria?

18

A

That, I don't remember.

19

Q

You don't remember?

20

Was it somebody in your

office?

21

A

Oh, yes.

22

Q

But you don't remember specifically the name of

23
24
25

the person?
A

For some reason I do not remember.

It was a

female, more likely than that a lawyer, but I don't

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2

remember who it was.
Q

Is that the only call like that that you had

3

with that person who was pretending to be Adria

4

Quintela?

5

A

To my recollection, yes.

6

Q

When somebody walked into your office was there

7

a sign-in sheet?

8

A

No.

9

Q

There wasn't a sign-in sheet at your office at

10

the front desk?

11

A

No.

12

Q

Was there one downstairs in the lobby of the

13

building where your office was located?

14

A

No.

15

Q

Anything that would indicate and create any

16

sort of paper trail about when somebody went to your

17

office and didn't go to your office other than the

18

e-mails you would get from your secretary or somebody

19

waiting for you in the lobby?

20
21

A

Other than the surveillance video that might

have existed, no.

22

Q

Does that still exist?

23

A

I have no idea.

24

Q

Do you know how long the tapes would be

25

recorded on the surveillance video?

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A

I don't know anything about it.

I heard at one

2

point in time that our surveillance video was saved,

3

then I heard at another point in time it erases over

4

every few days.

5
6

Q

I don't have a clue.

You haven't looked at it since you came back

from Morocco?

7

A

I hadn't even looked at it when I was there.

8

Q

Is that something you had installed yourself,

9

the surveillance video in your office?

10

A

I don't know what you mean by myself.

11

Q

I mean, not yourself, at your direction?

12

A

I'm the one who wanted surveillance in the

13
14
15
16
17
18

office, yes.
Q

You indicated that it was dozens of times that

Frank Preve came to your office; is that right?
A

There were, there were dozens of times that

Frank came to my office.
Q

Dozens.

And in one of those visits it became clear to

19

him that there were no settlements, he looked at

20

unredacted documents.

21

A

I never said it was during one of those visits.

22

Q

It was a meeting in your office?

23

A

No.

24
25

You're thinking about me showing him the

unredacted documents.
Q

Right.

That's what I'm asking about.

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2
3
4
5

A

One thing has nothing to do with the other.

It's just another little notch of the many.
Q

So, was Frank aware that there weren't any

actual settlements?
A

At some point in time, yes.

All you have to do

6

is look at the e-mail traffic to realize that he knew

7

these people didn't exist.

8
9

Q

Do you know -- did you -- can you give me a

little -- I understand what you're saying, can you give

10

me a little more specificity when he was aware there

11

were no settlements?

12

A

When?

13

Q

Yes.

14

A

No.

15

Q

Okay.

16

A

Sometime in '08.

17

Q

Okay.

18

A

Maybe before that.

19

Q

You don't recall what the number was --

20

A

Now that I'm thinking about it, here's the

21

thing with Frank, as I'm recalling his e-mail traffic

22

with me, if you look at it, there are points in time

23

where it's clear to me, and I think clear to anyone

24

reading it, that he was a player.

25

fooling around with things, just a legitimate investment

Okay, because he's

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guy just does not mess around with, balances and things

2

are a little wishy-washy, he's skating on the due

3

diligence, saying things like, I just need to make it

4

look like I'm doing due diligence.

5

on.

6

That's fairly early

So, it would be - as you go through that and

7

you could see things escalating, you should be able to

8

pinpoint a time when it's clear, maybe not the day he

9

knew, but certainly within the 30- or 60-day time frame

10

that he knew that there was a massive fraud going on

11

because things just made no sense.

12

And then you take out - if you make a list for

13

yourself of what you would do if you were investing

14

money, which is one of the things I did when I was

15

evaluating people on whether they would come into the

16

fraud or not - and did they ask for things.

17

difference between, for example, of the AJ Discala group

18

and the Clockwork people were asking for and as opposed

19

to what Frank asked for.

20

no comparison.

21

Q

22

diligence?

23

A

Look at the

It's night and day.

There's

Are you saying that Frank didn't conduct due

Didn't conduct thorough due diligence.

He of

24

all people, because of his closeness to the law firm,

25

should have had access if he wanted it to more telling

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documentation than anyone else and they did very

2

little.

3

In the beginning they talked to me about it.

4

And other than -- after that they basically rode on

5

other people's due diligence.

6

of things that he could have asked me for, if he didn't

7

know what was going on, that would have exposed the

8

entire thing, something as simple as a paper bank

9

statement.

I mean, there were a lot

10

Q

Wasn't he getting bank statements?

11

A

No, sir, he was getting photocopies and scans

12

of screen shots.

13

never asked me for one, and it was one of my big

14

indicators.

15

been very difficult for me to duplicate, and I talked to

16

Mr. Renie and Corte about it, is the bank paper.

17

Because the way the bank has that paper, the way it

18

looks and everything, all he had to do was say, let me

19

just see the last 10 months, the last two months, the

20

last three months, bank statements, I couldn't produce

21

that.

22

Q

23

He never asked me for - early on,

Because one of the things that would have

Did Frank ever ask you to take him on a bank

visit?

24

A

I don't know if I ever took Frank.

25

Q

Did he ever ask you about the bank visits that

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you did go on?

2

A

Only to ask me how they went.

3

Q

And is it fair to say that Frank was concerned

4

and interested in learning -- let me rephrase that.
Is it fair to say that Frank asked about other

5
6

due diligence conducted by third parties such as the

7

hedge funds or Szafranski on a regular basis?

8
9

A

Not in the way that you're intimating.

He

asked more frequently than not with regard to how it

10

went.

11

earlier when he was saying in his testimony - I think we

12

were discussing this before lunch - about him saying

13

that he knew nothing about me going to see those

14

lawyers.

15

It's kind of like what we were talking about

But in reading your packet I found an e-mail

16

where he is actually writing to Brian Jedwab saying to

17

him, you came down here, you did all this due diligence,

18

you went to see several referral sources.

19

Now, if Frank isn't lying in his testimony,

20

then you have to believe he did no due diligence in that

21

regard, but he could have very easily asked me, who are

22

the referral sources you went to see.

23

If I take it the way you're painting this, he

24

didn't ask me that, when I know he did and it makes only

25

sense that he would have.

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Q

Wasn't he asking for the results of their due

2

diligence?

3

A

Wasn't he looking to see what they produced?

Think about how telling this is.

He's only

4

asking Brian Jedwab in that e-mail, he doesn't send me

5

an e-mail because I've already told him if he didn't

6

know at that point in time how it went, really knew, if

7

he didn't know that I had gone and it was all a fraud

8

and that I thought it went well, when he writes to Brian

9

and Brian doesn't give him anything, how about just

10

writing to me and saying, Scott, I want to know who the

11

heck you guys met with; Scott, I want to know what was

12

said; Scott, I want to know how it went out, I can't get

13

this information from the hedge funds.

14

knew so he's not asking.

But he already

15

Q

Did you always respond to Frank's e-mails?

16

A

Always is a big word.

I tried to respond to

17

his e-mails as best as I could.

18

me if it was something I considered ultrasensitive I

19

would call him.

20

Q

Sometimes when he wrote

Now that we're talking about it, I forget

21

exactly -- here it is, it's the Jedwab e-mail, it's at

22

Tab Four, dated January 27, 2009.

23

A

Got it.

24

Q

He's saying in the third sentence, I'm sorry I

25

can't read it.

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You will recall that we

2

stopped all the lending activity because

3

Centurion/Platinum had not done a thorough due

4

diligence.

5

reviewing intake procedures, speaking to referral

6

sources, et cetera, and evidently came away satisfied.

Ari and you then spent two or three days

7

Do you know if he's basing that on the

8

conversation you had with him or on a conversation that

9

he had with Ari?

10

A

I would be guessing and I don't want to guess.

11

Q

But you did call him from one of those

12

attorneys' offices to tell him everything was going

13

fine?

14

A

I may have called him.

You'd have to look at

15

my cell phone records and the office records from the

16

various places, but my recollection is that I called him

17

more than once as the day was progressing.

18
19
20

Q

And do you know if Frank considered the hedge

fund guys to be sophisticated investors?
A

I think he considered most of them to be

21

sophisticated.

22

have some that are sophisticated and some that are not.

23

Q

I think as with any organization you

Let's go back to Tab Three, beginning of Tab

24

Three, there's a variety of e-mails here that I want to

25

go through.

The first one is April 13, 2009 e-mail.

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A

Is it the first page?

2

Q

It's the first page, yes.

3

A

Okay.

4

Q

The title is:

5

Frank says:

"Be careful".

George knows nothing about Regent.

And then you respond:

6

And it's April --

Sorry, I did not think I

7

sent anything to you regarding them.

8

with the bar, so I'm a big upset right now.
Do you know if Frank and you regularly kept

9
10

I am on the phone

things from George Levin?

11

A

I believe we did, yes.

12

Q

And is it fair to say that there's probably

13

quite a few e-mails indicating that George Preve was

14

unaware of certain things that you and Frank

15

acknowledged that George Levin was being kept in the

16

dark on certain things?

17

A

I believe so, yes.

18

Q

And did you indicate earlier in your testimony,

19

I think on Friday or actually earlier last week, that

20

George was monitoring Frank Preve's e-mails?

21

A

What I said was, I believe that George had

22

access to the e-mails.

23

I had access to all of my employees' e-mails, did I read

24

them, no.

25

looking at his e-mails, there were times when I was

Now, I'll give you an example.

Too much traffic.

George may have been

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having conversations with George that he just seemed to

2

be divining things that he couldn't otherwise know.

3
4

But do I know for a fact that he actually read
the e-mails, no, I don't.

5

There were certainly times when Frank

6

intentionally copied him on things and then later on I

7

saw e-mails, after the Ponzi exploded, where it was

8

clear that Frank was sending him things.

9

know what he knew or what he didn't know.

So, I don't
He certainly

10

wrote a lot of e-mails, George, that indicated he didn't

11

know.

12

Q

That he did not know?

13

A

That he did not know certain things.

14

Q

The e-mail that you responded -- the April 13th

15

e-mail where you respond to Frank:

Sorry, I did not

16

think I sent anything to you regarding them and I am the

17

on the phone with the bar so I am a bit upset right

18

now.

19

A

Yes.

20

Q

Who did you intend for that to be seen by other

21

than Frank?

22

A

I didn't know who was going to see it.

23

Q

But at that point you thought there was a

24
25

possibility that George could see it?
A

I think all along I thought that Frank might

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send things to George or George might look.

2

look at the bar thing, you have to get inside my head to

3

do this, okay.

4

that bar thing up to the hilt the entire time this was

5

going on.

6

But if you

If you look at the bar thing, I played

Initially, I wanted to be believed.

Later on

7

with Frank I couldn't have cared less whether he

8

believed it or not.

9

believe it, okay.

After that I was sure he didn't
It was just one of the ministrations

10

going on at the time.

11

money out initially to them and then ultimately to the

12

hedge funds because I was spending too much of the money

13

we were taking into the scam.

14

It was my reason for not paying

So, there's a lot that goes into it.

You can't

15

take one e-mail out of thousands and try to read

16

something into it.

17

Q

You won't get the proper context.

There was questioning on Friday relating to the

18

fake judicial order that was drafted in your office and

19

I believe Mr. Scherer talked about the metadata.

20

don't have any evidence like that that George was

21

looking at Frank's e-mails when you see the metadata -

22

you didn't see any metadata, anything like that, since

23

you've come back from Morocco?

24

A

No, sir.

25

Q

I'm asking.

You

So, what I want to know is whether

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you know for a fact that George was looking at Frank's

2

e-mails?

3

A

4

I believe I already told you no.

I don't know

that for a fact.

5

Q

Okay.

Did you -- you met in August with --

6

A

You know, while I'm thinking about this, one of

7

the other things that always, I guess, led me to believe

8

that he might have access to it, and this is the flip

9

side of it, is that when Frank did certain things to me

10

he wrote to me on that gsteinbauch e-mail.

11

imagine - unless he believed that someone had access to

12

his fpreve e-mails why he would use that for certain

13

nefarious transactions.

14

Now, I can't

But again, I really don't know, you know,

15

there's a lot of e-mails there, sir, that indicate to me

16

that George did not know what was going on at various

17

levels, it's still a question in my mind.

18

Q

The fpreve e-mail is an AOL account; right?

19

A

Yes.

20

Q

And do you know if that was on the Banyon

21

network?

22

A

You're asking the wrong guy, no.

23

Q

When you met in August with the Trustee, is

24

that something that you indicated to the Trustee's

25

Counsel as to George's potential ability to have been

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reviewing Frank's e-mails?

2

A

I have no idea.

3

Q

You don't recall one way or the other?

4

A

I don't recall one way or the other.

5

Q

If you go further down that same tab.

6

A

Yes.

7

Q

A September 30, e-mail 2009, 11:42 am, from

8
9

Frank to you.
A

10

What time?

11

MR. SCHERER:
Q

It's probably the --

12
13

Where are we, Counsel?

MR. SCHERER:
Q

Tab Three?

Tab Three, it's a few pages from the back.

14

September 30, 2009 e-mail.

15

0112310-0189124/1.

The Bates is

Subject is a new Banyon.

16

A

Got it.

17

Q

Did you suggest to Frank that a lock letter

18

could be provided on certain Banyon accounts, trust

19

accounts?

20

A

It came up in conversation.

I don't know if I

21

suggested it to him or we had just talked about the fact

22

that I was utilizing it with other investors.

23

Q

But that's something that you generally, you

24

testified earlier, did not offer to most people or did

25

not want to offer to most people?

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A

I tried not to.

Personally I tried not to have

2

to use it because it was, I believed, a strain on Frank

3

Spinosa and what was going on with him, so I tried not

4

to but where people wanted it I put it into play.

5

Q

Would it be fair to say that Frank and George

6

wanted a lock letter for their Banyon related trust

7

accounts?

8

A

9

At some point in time Frank asked me for a lock

letter for various accounts.

10

Q

Okay.

Okay.

11

A

Frank knew it wasn't going to do anything but I

12

guess for paper purposes and for audit purposes when

13

other people were looking at it I suspect that was

14

something good to have.

15

Q

Did you have a specific conversation with Frank

16

about the lock letters where you indicated that he knew

17

that it wasn't going to have any real effect?

18

A

I think I testified earlier, I don't know if it

19

was last week or earlier with you, but I believe I

20

testified earlier that Frank was one of the people that

21

told me that with all his banking, it's the craziest

22

thing he's ever heard simply because of the wire

23

transfer capabilities.

24

Q

25

bit more?

What do you mean, can you explain that a little

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A

Yes.

The lock letter professed to lock this

2

account so that the funds would be specifically sent to

3

a specific place when only requested by me or Stuart

4

Rosenfeldt.

5
6
7

Q

That was crazy.

You want to know why?

That was crazy because of the ability to get on

it on-line?
A

That was crazy number one because in a wire

8

system, the way Treasury Direct works, as long as I give

9

that little - I used to call it the magic decoder ring,

10

that little T file that gives you the different security

11

numbers, anyone that had our TD Bank sign-on and had

12

that little decoder thing, could go in and wire

13

anything.

14

As a matter of fact, the bulk of the time -

15

actually all of the time, neither Stu nor I, I don't

16

think ever initiated a wire.

17

entire time we were doing this.

18

were never initiated by Stu or I, they were initiated by

19

Irene who had the decoder thing or by Bill Boockvor, who

20

had the decoder thing.

Maybe one or two in the
So, the bulk of them

21

Q

Did you have this conversation with Frank?

22

A

That in depth?

23

Q

No, not in that depth, but about his knowing

24
25

that the lock letters did not have any real effect?
A

I recall conversations with Frank where he was,

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for lack of a better term, he was saying to me, What is

2

this cockamamie lock letter thing you guys were talking

3

about.

4

I explained it to him.

I mean, even if you

5

look at -- It's clear if you look at Mr. Spinosa's

6

e-mails with Ms. Caretsky and Mr. Mejia and all those

7

people, you can see that they didn't even know what the

8

heck to do.

9

e-mail sent that says, This needs to be restricted to

Because at one point in time there's an

10

transfers only made by Scott.

11

someone else tries to transfer the money out of here,

12

you should notify Scott.

13

And then it says, If

There's all kinds of different entries.

14

There's nothing consistent.

15

no process to do this actual thing.

And the reason is there was

16

Q

Okay.

17

A

It's just like the dual signature thing.

If

18

you look at some of them from Preve, I remember seeing

19

an e-mail recently where Mr. Preve is sending an e-mail

20

to some other due diligence person, and they're saying,

21

I hope I never hear this out of Scott's mouth.

22

And it was about some big fraud where an

23

attorney had stolen a bunch of money out of trust

24

accounts.

25

person's inquiring about this is, That's why we require

And Frank's response to that due diligence

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dual signatures.

2
3

There are no dual signatures.
signatures on anything.
Q

4
5

There are no

Do you recall what due diligence person that

was?

6

A

Jim something.

7

Q

Who is he?

8

A

I have no idea, just some due diligence person

9

Headman?

I can get it for you.

they were working with.

10

Q

A potential investor?

11

A

Either a potential investor or one of the many

12
13
14

different funds Frank was talking to.
Q

Okay.

If you turn two pages from the e-mail

that we were just looking at.

15

A

Two pages forward?

16

Q

Two pages forward, yeah, towards Tab Four.

17

There's an e-mail there from you dated September 30,

18

2009, to Frank and --

19

A

What's the time.

20

Q

The time is 10:12 a.m.

21

A

01?

22

Q

01 a.m., exactly

23

A

Got it.

24

Q

On the second paragraph it says:

25

into completing what needs to be completed.

Debra is well
I am

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sitting here papering deals myself for the 40 million as

2

she's having a biopsy today.

Do you recall if Debra was actually having a

3
4
5

biopsy that day?
A

There were many, many occasions where Debra was

6

out on medical visits.

7

problematic medical issues.

8
9
10

She will be in later.

Q

She had some very real

You weren't actually papering any deals that

day, though, were you?
A

Oh, no.

I actually may have been inserting

11

information and getting it as ready as I could for her,

12

sure.

13

Q

14

Do you recall specifically on that day whether

you were papering?

15

A

I have no clue.

16

Q

Did you ever make up excuses for Debra for lack

17

of papering?

18

A

Sure.

19

Q

To Frank and George?

20

A

To Frank, to George, to just about everyone

21

involved in this, yes.

22

Q

Can you turn to Tab Five, please.

23

A

Okay.

24

Q

And I'm looking at, it's the fourth e-mail in

25

there, January 11, 2009, an 11:11 a.m. e-mail from

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Frank.

2

A

Tab Five?

3

Q

Yes, Tab Five.

4

A

I have one e-mail and a bunch of invoices.

5

Q

No, that's Tab Six.

6

A

I have no Tab Six.

7

Q

I'm sorry.

8

MS. TRENCH:

10

12
13

I apologize.

I was

reading the 5 as a 6.

9

11

Tab Four.

I'm sorry.

MR. RASCO:

Can we have the date?
It's January 11, 2009, 11:11 a.m.

BY MR. RASCO:
Q

And there's a table on it with trust balances

on it.

14

A

Yes.

15

Q

Okay.

You were talking earlier about an

16

indication that Frank knew that there were trust

17

issues.

18

where there was a significant amount of money that was

19

not in one of the trust accounts?

20

A

Was this the e-mail you were talking about

It's not the one I was addressing.

It's

21

another one.

22

earlier.

23

I was addressing earlier was one where he said, This is

24

impossible.

25

Q

It's not the one I was addressing

It is pertaining to the same account.

The one

Okay.

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A

This is similar.

2

Q

The 9146 account?

3

A

That's the best of my recollection.

4

Q

You did mention that this morning, so that was

5

the other one then, the "This is impossible" e-mail,

6

which I don't have here with me.

7

A

Yes.

There's an e-mail where it's a more

8

significant shortage.

This only appears to be a

9

$35 million shortage.

The other one was close to a

10

billion dollar shortage.
Q

11

And in this e-mail, if you look at the total

12

balance, 700 -- I can't read that number very well.

13

731 million and required --

14

A

It looks like 751.

15

Q

I'm sorry, 751, and required 516.

Do you

16

recall having a conversation with Frank or anything

17

other than just this e-mail about this trust account

18

issue?

19
20

A

Do I recall having a specific conversation with

him?

21

Q

Yeah.

22

A

No, but it's likely we did.

23

Q

Why do you say that?

24

A

Because normally when there would be problems

25

with this kind of thing I would pick up the phone and

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talk to Frank and ask him what he needed these things to

2

reflect.

3

going to be more money coming in?

4

changing these balance sheets.

5

large deposits coming in, let me know about them now and

6

I'll go ahead and I'll bolster the balance sheets now so

7

I don't have to have Deb and Irene keep changing the

8

thing.

9

Q

Sometimes we'd discuss the fact that, Is there

Okay.

I don't want to keep

If there's going to be

Turning a few e-mails down, it's the

10

second of -- three pages or five pages from the end.

11

April 13, 2009, from Frank to you, 6:17 p.m.

12

A

Hold on.

13

Q

The subject is Banyon wires.

14

A

No.

15

Q

It's like four pages towards Tab Five.

16

A

4?

17

Q

April 13, 2009, 6:17 p.m.

18

A

Hold on.

19

Q

6:17 p.m.

20

A

Okay.

21

Q

The second paragraph in that e-mail Frank to

22

you says:

23

problem with the trust funds; is this the case?

24

is we need to deal with it but don't send me off dealing

25

with Platinum and Centurion if the issue is really the

Got it?

How many pages in?

6:17 p.m.?

The other issue is if there's a cash flow
If it

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trust accounts.
Do you recall that e-mail?

2
3

A

I can't see it on here.

4

Q

Second paragraph.

5

UNKNOWN SPEAKER:

6

MR. RASCO:

7
8
9
10

Where is it?

The Bates number?

The Bates number is

112310-0162270/1, part of the Preve production.
BY MR. RASCO:
Q

It's the paragraph that begins, "The other

issue is" --

11

A

Okay.

12

Q

Okay.

13

A

I recall this.

14

Q

You recall this e-mail?

15

A

I do.

16

Q

And why was Frank inquiring if there was an

17

issue with the trust account funds.

18

disingenuous e-mail on his part?

19

A

No.

Is this an

From time to time Frank would tell me,

20

scold me over the telephone and in person that I was

21

spending too much of the money.

22

whether or not there's a problem with the amount of

23

money.

24

there enough money in here to make our payments?

25

there enough money to keep everything going?

And he's asking me here

Because, again, all we're concerned about is, is
Is

Is there

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enough money to ultimately make sure we're making lots

2

of money, which we were at the time.

3

Q

And --

4

A

But you're misinterpreting, you're saying

5

because he's saying "trust funds," that that means

6

legitimate trust funds.

7

What he's asking me here is basically, Hey,

8

Dummy, have you spent too much money?

Is there enough

9

in there to cover all these payments?

That's what he's

10

asking me.

11

Q

12

And you have conversations by phone or in

person that would back up that statement?

13

A

Yes.

14

Q

And he would tell you that you were spending

15

too much money.

16

in person?

17

A

18

Is that something he actually told you

More than once.

He told me I spent money like

I hated it.

19

Q

He told you you spent money like you hated it?

20

A

Yes.

21

Q

Did he know how much you were spending?

22

A

I spent money like I hated it.

23

Q

Do you know if he had a specific idea of how

24
25

much you were spending or -A

Frank knew probably as well as anybody that I

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was literally out of control.

2

once wrote me a note when I was -- You'll see an e-mail

3

when we were short on money, and Frank was quite

4

aggravated with me that I had drained accounts to the

5

extent that they were drained.

6

money to fund, which was regularly a problem.

As a matter of fact, he

We didn't have enough

7

Q

This is an e-mail relating to that?

8

A

There are all kinds of e-mails like this.

9

Q

But specifically about you having spent too

10
11

much money?
A

I'm getting to it.

His comment was, If you'd

12

stop buying every empty restaurant and bar and some

13

other thing in town, maybe we'd have some money left

14

over to fund some of these things.

15

Q

Do you recall the approximate date that e-mail?

16

A

I don't.

17

Q

There's an e-mail two pages in from the one

18

that -- I'll give you exact.

19

A

When you say in, you mean forward or back?

20

Q

Towards 5.

It's an April 27, 2009, e-mail.

21

It's from Frank to you.

22

Frank and you.

It's an e-mail chain between

23

A

It starts out on the bottom with my e-mail?

24

Q

Correct.

25

A

Okay.

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1

The third paragraph says, "Jack was here with

2

me.

3

bank officer as to the balance.

4

their money is in the bank.

5

their court, I proved that we have their money.

6

they need to step up and do their part to get me out of

7

this mess.

8

the first large deposit as I will not touch their funds

9

until I can represent to the bar that the dispute with

10

Went to the bank and received verification from a
Thus, he knows all

Now that the ball is in
Now

In order to save my ass they need to make

the funding sources is over and settled."
This is an e-mail from April 27th.

11
12

A

Okay.

13

Q

Why would you send an e-mail like this just to

14

Frank if he's aware that the money is not in the bank

15

and that the bar issue doesn't really exist?

16

A

For his use sending it to other people, cutting

17

and pasting it, using the entire e-mail.

18

look at all my e-mail traffic.

19

you'll see that I regularly - with everybody, not just

20

with Frank - I regularly provided people who were

21

clearly involved in the fraud with e-mails providing

22

both myself and others with what I'll call plausible

23

deniability.

24
25

Q

You have to

Put it all together and

But you do know that Jack was with you and that

you did take him in the bank, correct?

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A

I understand that.

But there are things in

2

here, if you look at it, I paid off all outstanding

3

clients.

4

Platinum and Centurion and Level 3 current.

5

Frank, you have the list.

I then bring

To me, as I sit here today, that's something I

6

wrote expecting Frank to forward that or at least pieces

7

of it off to the hedge funds.

8

had no intention at this stage in April of bringing them

9

current.

Because, number one, we

We had too many other things to fund.

But if

10

they didn't believe they were going to be brought

11

current they weren't going to fund anything.

12

We were just trying to get them -- if you look

13

at the e-mail history, you'll see there's plenty of

14

e-mails where we're trying to come up with various ways

15

to put them in a trick box to get them to fund.

16

So, again, you can't take -- unfortunately

17

because of the sheer voluminous nature of the paper in

18

this case, you can make anything look like anything by

19

pulling one e-mail out or pulling a few e-mails out.

20

All the e-mails need to be read all together and you get

21

a pretty clear picture as to who was involved and who

22

wasn't, what they knew, what they didn't know.

23

very telling story.

24
25

Q

It's a

If I told you that you have about over 7,000

e-mails between you and Frank where you and Frank were

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2

both copied, does that sound accurate to you?
A

I would have thought there was more.

I think I

3

was told at one point in time there were over a million

4

e-mails involved in this case in total.

5

Q

6

e-mail --

7

A

8
9

The last e-mail -- sorry, the second to last

Is that the second to last under Tab Five,

meaning the end of the book?
Q

The second to last e-mail in Tab Four.

10

subject is "Unknown."

11

from you to Mike Szafranski.

12

about this e-mail this morning.

13
14

A

It's October 1, 2009, 2:41 p.m.,
I believe you testified

This is me writing one of those fake

verification letters for Mr. Szafranski.

15

Q

16

correct?

17

A

18

Yes.

The

Right.

No.

And this one is addressed to Mr. Preve,

I write it first -- I don't know which one

you're looking at.

At 2:41 I sent it to Mike.

19

Q

Right.

20

A

And then at 2:45 Mike sends it to Frank.

21

Q

Yeah.

I just mean, "Dear, Mr. Preve."

You

22

wrote, Dear Mr. Preve at the 2:41, sent it toke, and

23

then Mike sends it to Frank?

24

A

Yes.

25

Q

I take it that you're suggesting that this

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would be something that Mike is sending to Frank for

2

other people's eyes?

3

A

Well, that's what it's for.

You can tell by

4

the way it's written that it doesn't look anything like

5

what I would write to Frank.

6
7

Q

Well, does Frank know that you're the drafter

of this e-mail?

8

A

Yes.

9

Q

Frank knew that you were the drafter of this

10
11

e-mail when he received it?
A

What had occurred was, if I recall correctly,

12

Szafranski had sent an earlier e-mail, whether this one

13

or it was another one, either to Frank or to some other

14

investor that he did verification for, and Frank did not

15

like the format.

16

Frank.

17

amounts, gave him the deal numbers.

18

and paste it over, change who's signing it and zip it

19

over to Preve.

20
21
22

Q

And I discussed the format with

I formatted the letter for Mike, gave him the
Just said, You cut

Why didn't Frank like the format, if you

recall?
A

I don't recall.

But if this was -- if you look

23

at this, this is going to -- this is BS, BUS V1 and V2.

24

And I recall that we had some pretty heavyweight

25

investors.

I don't recall who they were at the time in

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those two.

2

I think one was Mr. Scherer's investors.

3

and Frank wanted, a very formal verification letter.

4

There was some pretty heavyweight investors,
And I wanted,

A matter of fact, I think this is the most

5

formal verification letter that Szafranski, through me,

6

ever wrote.

7
8
9

Q

Did Frank specifically discuss this

verification letter with you?
A

I recall discussing with him verifications in

10

general regarding the Von Allmen, Clockwork, et cetera,

11

investors.

12

tell you, but it certainly fits Frank's and my mold,

13

that we would have discussed it before it came over

14

because otherwise I wouldn't have known exactly what he

15

wanted into it.

Whether this was the specific one, I can't

16

Q

17

together?

18

A

A few times, yes.

19

Q

Socially or for the investment strategy, let's

20

call it?

21

A

Both.

22

Q

Was Frank ever present at the verifications

23
24
25

Did you, Frank, and Mike Szafranski ever meet

that Szafranski was conducting at your office?
A

He may have been in my office while Mike was

doing that.

But, again, I wouldn't have put them both

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together at any point in time to go pushing through

2

things.

3

Q

You --

4

A

As I told you earlier, I tried to discourage

5

people involved in the fraud from talking to one

6

another.

7

Q

8
9

Again, you said there was never a sign-in sheet

at your office?
A

You testified to that earlier.

There was no sign-in sheet in my office.

Maybe

10

Bova has records of Frank coming over because Frank used

11

to come over - probably a dozen of the times he came

12

over he would come over and he'd just go directly to the

13

bar at Bova and he'd say, Get your ass down here.

14

down at the bar waiting for you.

15
16
17
18

I'm

We would do our business down there.
Q

Would you meet him there more often than you

met in your office?
A

No.

We would generally head there after

19

meeting in the office, but not necessarily starting

20

there more often than not, no.

21
22

Q

Okay.

Do you know if Frank ever drafted any

deal documents for you?

23

A

You have to rephrase the question.

24

Q

Was Frank ever involved in the drafting of deal

25

documents?

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Yes.

2

Q

Can you be more specific as to how he was

3

involved?

4

A

At the time that we were creating the initial

5

packet increased, the look and appeal of our settlement

6

documents, he came up with some ideas along with me

7

regarding the Purchase and Sale Agreements, the Transfer

8

Agreements.

9

I, at one point in time, wanted to do an

10

assignment.

He said, No, the assignment's not going to

11

look right.

Let's do this kind of document.

12

yes, he participated in the drafting and creation of

13

what came to be known as our final deal packet.

14
15
16

Q

And so,

He was doing it from a business deal structure

perspective, though, wasn't he?
A

I don't know what that means.

We were doing

17

everything from a business deal structure perspective.

18

When you're conducting a fraud and you want it to pass

19

muster, you conduct everything as if it's real, as close

20

as possible.

21

Q

I'm just asking whether he was involved in the

22

actual writing of the legal documents, in other words,

23

writing what was --

24
25

A

Yes, I just answered that question.

He was

involved in the -- let me look at the names of the

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documents and I'll tell you specifically.

2

In the contract of employment he was not

3

involved, I don't think he gave me, because we used our

4

standard contract of employment.

5

The Confidential Settlement Agreement and

6

General Release, he gave me some wording to add into

7

that, especially with regard to the financial advisor

8

stuff.

9

The Acknowledgment of Assignment, Purchase of

10

Settlement Proceeds, he and I went back and forth on

11

that document extensively regarding the language, so he

12

was heavily involved in that.

13
14

The Sale and Transfer Agreement, same answer.
He was involved.

15

Q

Was this all in 2007?

16

A

I don't remember when it was.

Whenever the

17

first -- Look at the date we have the first full deal

18

packet that looks like this, that's when it was.

19

Q

20

into it?

21

A

22
23
24
25

Okay.

Do you recall if that was about 13 deals

I don't recall.

Agreement, same answer.
Q

The other Sales and Transfer
So, yes, he was involved.

And at that time was he aware that anything

illegal was going on?
A

Again, you have to look at the entire set of

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e-mails to know what he knew when.

2

Q

Assuming we're talking about 2007.

3

A

What time in 2007?

4

Q

You know, early on when -- let's say early to

5
6

mid 2007, April, March, April.
A

By mid 2007 it's my opinion that Frank had a

7

good idea as to what was going on or at least started to

8

sense it.

9

through the e-mails for you and making a timeline, which

Again, I can't without sitting and going

10

I suggest you do, you're not going to be able to

11

pinpoint it exactly.

12

The way this worked with Frank and everybody

13

else is I kept putting feelers out there.

14

little bit.

15

react.

16

opening the Ponzi door little by little until they are

17

in in whatever role they wish to be involved in.

18
19
20
21
22

They pick up on something.

Take it to the next step.

Give them a

See how they

And, again, keep

As I said, some people didn't take the bait.
Some people took it hook, line, and sinker.
Q

Did Frank ever fill in the blanks as far as the

names of parties on any of these settlement agreements?
A

No.

But he did from time to time call me and

23

tell me that I had the wrong names in there.

24

I had the wrong amounts in there.

25

wrong deal numbers in there.

He told me

He told me I had the

And this is very telling

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because this is after these plaintiffs and defendants

2

have allegedly signed these documents.

3

And one of the other things you should look at

4

is the timing of these documents.

5

that it would be physically impossible, if you look at

6

the turn-around time from the time that we allegedly

7

settled the case to the time that the documents are

8

produced and signed, in many cases it's physically

9

impossible unless I had some kind of transporting

What you realize is

10

machine to transport defendants all over the country

11

into my office.

12
13

Q

Did you ever have that kind of discussion with

Frank?

14

A

No.

15

Q

Okay.

16

A

Not to my knowledge, no.

17

Q

Did you ever tape record any of the meetings in

18

your office?

19

A

No, sir.

20

Q

Do you recall regularly sending Mr. Preve

21

e-mails that you were meeting with clients or working on

22

settling a case in 2008, 2009?

23

A

Especially when I was trying to generate

24

attraction for deal flow, I would send him all kinds of

25

crazy e-mails about negotiating, what was going on.

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Sure.

2

Q

3
4

Explain what you mean by, when you were trying

to generate attraction for deal flow?
A

Well, initially before he knew what was going

5

on I was trying to attract deal flow with him.

6

knew what was going on I wanted him to be able to

7

utilize the e-mails to attract deal flow from others.

8
9

After he

There were times when, if you look at what was
going on, there were times when I actually sent Frank

10

e-mails telling him that I was someplace where it's

11

clear to Frank knew that I wasn't there because, for

12

example, I would say I was out of state handling

13

something, and then an hour later Frank and I were

14

meeting downstairs at Bova.

15

Q

Can you point to a specific date or e-mail?

16

A

Again, I would need to see all the e-mails.

17

could tell you - and we could actually match it to my

18

travel manifest and the like.

19

Coral, Florida, negotiating a big deal with seven

20

plaintiffs or something.

21

a receipt from me being in Bova with Frank for several

22

hours.

I

23

Q

I'm saying I'm in Cape

And then an hour later there's

That's not something that Frank would raise in

24

an e-mail, like, I'm meeting you in a half an hour, I

25

know you're not there?

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A

No, no, no.

2

Q

Is it fair to say that Frank was regularly on

3

your back about the fact that deals weren't always

4

papered on time?

5

A

Yes.

Frank thought that the major weakness in

6

everything we were doing was the fact that he was giving

7

me tens of millions of dollars without paper and he

8

thought that would come back to bite us in the ass some

9

day, and he expressed that on more than several

10

occasions.

11

Q

Did he express that in e-mails?

12

A

Yes.

13

Q

How so?

14

A

Bite in the ass, not of.

15

Q

Is that in an e-mail?

16

A

Yes, it is.

Do you mean the biting of the ass?

As a matter of fact, I think it's

17

the same, turn around and bite us in the ass.

18

all kinds.

19

those e-mail segments where he and I are going back and

20

forth about the lack of paper - well, not going back and

21

forth.

22

documents.

I thought Deb was going to do the old

23

documents.

He keeps putting old documents.

24

kind of stuff there.

25

There's

Look at those e-mail tracks -- excuse me --

He's kind of writing to me saying, Where's my

There's all

If you put the e-mails out, you'll see what I'm

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talking about.

2

back and creating.

3

backdate documents.

4

that he did that indicate the level of his knowledge.
Q

5

He's asking for things that we're going
He asked me at one point how to
There's a whole plethora of things

You talked yesterday or on Friday, I believe it

6

was, about the fact that you were diagnosed in college

7

with acute anxiety disorder; is that right?

8

A

Yes.

9

Q

And since you've returned from Morocco have you

10

had any psychological evaluations?

11

A

No.

12

Q

Have you taken any polygraph exams?

13

A

No.

14

Q

Since you returned --

15

Oh, yes.

MR. LaVECCHIO:

16

Actually I did.

I have to object at this

point.

17

MR. RASCO:

18

Can we take a five minute break,

please?

19

(Thereupon, a short break was taken.)

20

3]

21

BY MR. RASCO:

22

Q

Ready to go?

23

A

I am.

24

Q

Mr. Rothstein, I'm going to hand you an e-mail

25

that was not included in my binder.

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A

Okay.

2

Q

Here's two copies.

3

If anybody wants a copy, I

have copies.
It's a July 27, 2007 e-mail from Frank to you

4
5

and the subject is lunch.

And it states:

I would love

6

to come but I have to do my unlicensed practicing of law

7

for most of today.

8

next Friday as George will be out of town and I will

9

have my feet up on my desk thinking about what kind of

I will take a rain check.

10

problems I can create for him.

11

Get me my documents.

How is

Thanks anyways.

P.S.

Do you remember this e-mail?

12
13

A

Yes.

14

Q

Doesn't this e-mail indicate to you that

15

George - there's no way George Levin would be looking at

16

Frank's e-mails?

17
18

A

What, you think because he's making a joke

about this?

19

Q

You think that's a joke?

20

A

Listen, as I sit here today, again, I don't

21

know if George was looking.

22

read, I think, most of the e-mails indicate that George

23

was not looking at them.

24

had access to; but access and actually doing are two

25

completely different things.

Based upon everything I've

I do recall being told that he

There are better e-mails,

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I think, than this that would indicate that George was

2

not looking at e-mails.

3

believe me, me and George and Frank joked around all the

4

time about who was working, who was not, what Frank did

5

when George was out of town.

6

I understand what you're trying to do, it's not

7

the greatest example.

8

will help you better.

9
10
11
12
13
14
15

This one is just -- I mean,

Q

I think there's other ones that

You agreed there's several e-mails that would

indicate that George was not looking?
A

I testified to that numerous occasions.

There

are a lot of e-mails out there.
Q

You had a conversation, did you say, that

indicated to you that George was looking at his e-mails?
A

There were times when I was talking to George

16

when he seemed to have knowledge about something that he

17

either would have to have devined, gotten directly from

18

Preve, or had been reading the e-mails.

19

something just hits you funny when someone says

20

something and it seems to quote something you said

21

recently?

22

Q

Yes.

23

A

Those kind of things.

24
25

You know how

It wasn't like a crazy

suspicion that I had.
Q

Didn't you say you were joking with Frank about

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that, that the fact that he was looking at his e-mails

2

you were laughing with Frank Preve about that?

3

A

Just now?

4

Q

No, earlier in your testimony last week.

5

A

I certainly may have.

6

Q

Do you recall a specific conversation with

7

Frank where he indicated to you that George was looking

8

at his e-mails?

9
10
11

A

I recall Frank telling me that George had

access to it.
Q

You've talked about the rock-star lifestyle and

12

referencing several people.

13

beneficiaries of the rock-star lifestyle that you've

14

talked about?

15
16

A

George had his own rock-star lifestyle.

didn't need me.

17

Were George and Frank

He

And Frank, not really, no.

No, Frank was getting direct money.

18

Q

Frank was getting direct money from who?

19

A

From me.

20

Q

In the form of cash?

21

A

No, in the form of me pushing through deals

22

that were extraordinary like the 11 million in and 22

23

million out on the Regent deal and some multiple $50,000

24

invoices that we paid to him.

25

Q

And what were those --

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A

He was also being well taken care of by

2

George.

3

million dollars during the course of this.

My understanding was he made well over two

4

Q

From George?

5

A

So, George wasn't -- from George and from me

6
7
8

and from the side deals he was doing, yes.
Q

And the invoices, was that for consulting -

bank consulting work Frank was doing for you?

9

A

That may be what he wrote on it.

10

Q

Do you recall having a discussion with him

11

about that?

12

A

About what to call it?

13

Q

Well, no.

14
15

Was he ever doing any actual bank

consulting work for you?
A

Frank did all kinds of -- I guess you would

16

call it consulting, answering questions for me, I

17

answered questions for him.

18

of what he was doing for George, Centurion, and any

19

other investors he brought in.

20

separately that he was doing for me.

21

But it was part and parcel

It wasn't something

From time to time I may have had a banking

22

question for him, but I can tell you that all of the

23

times that I talked to him, even if he was billing me

24

$10,000 an hour it wouldn't add up to $50,000 worth of

25

work.

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2

Q

All the payments for those invoices, they're

all in Tab Five, I believe.

3

A

I saw that.

4

Q

All those payments were made by check or wire

5
6

to him or -I don't know, you'd have to look.

I don't know

7

which ones were paid, which ones were not.

I don't know

8

how much it was.

9

certain monies that we sent to other investors that he

10

A

I was under the impression that

was getting kickbacks.

11

From what I could tell he was very well

12

compensated.

13

about the amount of money he was making.

14

Q

He never - he rarely complained to me

Were there -- there's never any instance where

15

Frank was getting paid cash directly though; is that

16

right?

17

A

I don't recall giving him any cash directly.

18

Q

Same with George obviously, right?

19

A

I never gave George cash, no, sir.

20

Q

And as far as, you know, women, strip clubs,

21

escorts we talked about, nothing like that with Frank

22

and George; is that right?

23
24
25

A

No.
MR. RASCO:

Okay.

I just want to state on the

record one more time that we don't agree that the

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two and a half hours with Mr. Rothstein is

2

sufficient time to properly cross examine him, but

3

because I've been allotted two and a half hours,

4

I'm going to close now.

5

THE DEPONENT:

6

MR. SCHERER:

8

MR. RASCO:

10
11
12

Thank you, sir.

Would you like

your notebook back?

7

9

Thank you.

That should be made an exhibit?
Yes.

Actually the last one that I

just gave him.
THE WITNESS:

If you want to put stickers on

all this stuff before we get too deep in exhibits.
(Whereupon, Preve's Exhibit No. 207 was marked

13

for identification.)

14

MR. CRAIG:

All the documents I'm using are

15

either from the exhibits that TD circulated or the

16

exhibits that Spinosa circulated or from the

17

750,000 documents that were produced on Thursday,

18

Plaintiff's notice of production, the restored,

19

deleted e-mails.

That's not --

20

UNKNOWN SPEAKER:

21

MR. CRAIG:

We can't hear you too well.

All the documents that I'm going

22

to use today as exhibits either came from TD Bank's

23

exhibits that they circulated, Spinosa's exhibits

24

or there's a single exhibit that I'm going to be

25

using that came from the production on Thursday,

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Plaintiff's production, restored, deleted e-mails.

2

And another, excerpts from your Third Amended

3

Complaint.

4
5

MR. SCHERER:
those.

6

THE WITNESS:

7
8
9

No objection to either one of

Whenever you're ready, sir.

DIRECT EXAMINATION
BY MR. CRAIG:
Q

Good afternoon, Mr. Rothstein.

My name is

10

Tucker Craig and I represent Rosanne Caretsky.

11

along with my co-counsel Mr. Dan Gelber.

I'm here

12

A

Mr. Craig, Mr. Gelber.

13

Q

First of all, I haven't been here every day,

14

but I don't believe anybody has gone over any ground

15

rules with you.

What I'm referring to are ground rules

16

for deposition.

I assume that you're familiar with them

17

from your practice as a lawyer?

18

A

I am.

19

Q

And one of the ground rules that I would like

20

to stress with you before we get started is, it has to

21

do with speculation.

22

you don't want any witness to guess or speculate; is

23

that a fair statement?

You know as a former lawyer that

24

A

Depends upon what you're looking for.

25

Q

Well, I'm looking for the truth and I don't

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want you to guess or speculate, okay?

2

A

Understood.

3

Q

If you don't know the answer to any question I

4

ask, would you just tell me so?

5

A

You got it.

6

Q

If you don't remember or recall the answer to

7

any question I ask you, tell me that also.

Okay?

8

A

Yes, sir.

9

Q

During your responses to Mr. Scherer's

10

questions on direct you prefaced a lot of your answers

11

with I think, I believe, I suspect, perhaps, and then

12

you would follow up with an answer.

13

answer like that in my mind is a guess or a speculative

14

response.

15

A

Yes, sir.

16

Q

Now, what have you reviewed by way of

Built into an

I don't want you to do that.

Okay?

17

deposition transcripts in preparation for your testimony

18

here today?

19

A

I don't recall.

20

Q

Have you reviewed any deposition transcripts?

21

A

Yes.

22

Q

Have you reviewed any deposition transcripts of

23

my client, Ms. Caretsky?

24

A

I don't recall.

25

Q

When was the last time you reviewed a

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deposition?

2

A

Several weeks ago.

3

Q

Prior to the commencement of your deposition

4

last Monday?

5

A

Yes, several weeks prior to that.

6

Q

Have you reviewed, other than during your

7

deposition I just marked as exhibits, have you reviewed

8

any documents since your deposition began on the 12th?

9

A

Yes.

10

Q

What documents have you reviewed since your

11

deposition began?

12

A

A few hundred e-mails.

13

Q

Pertaining to what?

14

A

Pertaining to all sorts of things.

Some of it

15

is pertaining to my continuing cooperation with the

16

government.

17

cooperation with the government.

18

Q

In fact, all of it was with my continuing

Have you reviewed any documents or e-mails or

19

correspondence or pleadings or papers having to do with

20

the Razorback case, Mr. Scherer's case?

21

A

Not in the last several weeks, no, sir.

As I

22

want to make sure, with regard to the big 2000-something

23

page complaint that Mr. Scherer filed, I haven't

24

reviewed that for many weeks.

25

course of my deposition, reviewed parts of a Complaint

I recently, during the

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filed against Ted Morse.
Q

When you say "during the course of your

3

deposition," are you talking about during a break or at

4

night in between segments?

5

A

In the evening.

6

Q

Is that the only thing --

7

A

Some during a break.

8

Q

Is that the only thing that you reviewed since

9
10
11

your deposition started other than what you told me
about the e-mails relating to your cooperation?
A

Other than something that might be

12

attorney/client privilege, I haven't reviewed anything

13

else.

14

Q

15

Do you recall the first time you met my client

Ms. Caretsky?

16

A

I do not.

17

Q

Do you recall what the context was of your

18

initial meeting with her, that is where were you, what

19

did it have to do with?

20

A

I have no specific recollection.

21

Q

Do you recall your initial meeting with meet

22

and greet with TD Bank representatives when your

23

relationship began back in early November of 2007?

24
25

A

My first recollection is a dinner I had with

John Tolomer.

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Q

Is that at Saint Regis?

2

A

No, that was in a restaurant in Boca Raton.

3

Q

Do you ever recall meeting my client during one

4
5
6
7

of those initial meetings?
A

I recall meeting your client, I don't recall

specifically the date.
Q

Let me see if I can help refresh your

8

recollection.

There's been testimony in this case by

9

more than one person that she was present during the

10

initial meeting at your law office in early November.

11

Do you remember that?

12
13
14

A

I don't remember whether it was in November or

not but I do remember her being in my office.
Q

Actually there were two meetings in your law

15

office.

16

walked out; and a couple weeks later there was a meeting

17

when lenders from TD Bank came in and that meeting

18

lasted and you had sat down and attended that meeting,

19

that meeting lasted 30 minutes or less.

20

that meeting?

21

A

One you walked in and said hi to everybody and

Do you recall

I recall being at a lender's meeting.

22

know if it was that lender's meeting.

23

me that was only one.

I don't

If you're telling

24

Q

No, I'm not telling you that.

25

A

Then I don't have a specific recollection of

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attending that meeting.
Q

More specifically you don't have a specific

3

recollection of meeting my client at a meeting such as

4

that?

5

A

I recall seeing your client at the Weston

6

branch.

7

Bova restaurant.

8

times, I have no reason to doubt what you're saying.

9

just don't have a specific recollection of it.

10
11

Q

I recall seeing your client once or twice at
I don't recall seeing her any other

Fair enough.

I

You said you saw my client once

or twice at Bova restaurant?

12

A

That's correct.

13

Q

Was that when she was there having lunch with

14
15

Uncle Bill?
A

I don't recall who she was having lunch with

16

but I was in the restaurant as I was frequently and she

17

was there.

18

Q

19

correct?

20

A

I said hello.

You said a hello from across the restaurant,

I couldn't tell you whether it was across the

21

restaurant or not but I said hello.

22

looking for is there was no further conversation other

23

than hello.

24

Q

That was at lunch, correct?

25

A

I believe it was lunch, yes.

I think what you're

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Q

As far as the other contact or I guess only

2

contact that you do have independent recollection of

3

with my client, were the shows that you've talked about

4

for the past week or so.

5

statement?

6

A

7
8
9
10

Would that be a fair

Yes.
(Whereupon, Caretsky's Exhibit No. 208 was

marked for identification.)
BY MR. CRAIG:
Q

Let me go ahead and show you a couple of

11

documents before we go any further.

Let me show you

12

what's been marked as Defendant's Exhibit 208 for

13

identification.

14

Plaintiff's third amended complaint, it's titled

15

Paragraph Roman Numeral IX:

16

97 of 2210 through 101.

It is an extension certificate from

Devastating Fallout.

Pages

May I approach?

17

A

Thank you.

18

Q

Take a look at that document and tell me if you

19
20
21
22
23
24
25

recognize it and if so, how?
A

I remember seeing this.

I read it at the time

that I was reviewing the original Razorback Complaint.
Q

When you say original Razorback Complaint, are

you talking about an initial complaint?
A

Sorry.

For me, the first time I saw a

Razorback Complaint I think, thankfully, was the Third

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2
3

Amended Complaint.
Q

Thankfully because it has 2210 pages plus a

couple of 1000 pages of exhibits?

4

A

Yes.

5

Q

That was a lot of homework; wasn't it?

6

A

That is the understatement of the millennium

7
8
9

along with some others, yes.
Q

As you sit here today -- Let me ask you, did

you read it cover to cover?

10

A

Not in one sitting but, yes.

11

Q

Over time?

12

A

Over many weeks.

13

Q

And did you find anything inaccurate about the

14

allegations contained in the Third Amended Complaint?

15

A

Some things, yes.

16

Q

Tell me about those.

17

A

I don't remember what they are.

18

Q

Tell me about --

19

A

I can give you a couple examples that pop into

20

my head.

There was a thing in there about Frank Preve

21

having an office with me, he didn't have an office in my

22

offices.

23

Q

24
25

Did you tell anybody about that inaccuracy?
MR. NURIK:

I'm going to object on privilege

grounds.

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MR. CRAIG:

2

THE WITNESS:

3

And instruct?
Yes, obviously.

BY MR. CRAIG:

4

Q

Okay.

5

A

You know what, I don't want to obviously go

6

through 2210 pages.
Q

7
8

Got another example?

I'm not asking you to.

Off the top of your

head --

9

A

Nothing is popping out.

But for some reason

10

that office thing is popping out in my head, probably

11

because we just discussed it and I remember it also

12

being in the Complaint.

13

yes.

14

Q

There were some inaccuracies,

Let's try to speed this up a little.

I want to

15

call your attention to the second page of this exhibit,

16

which is Page 98, which would be Paragraph Roman Numeral

17

IX, A, little "e," period.

18

A

19
20
21

You lost me.
MR. NURIK:

Q

Nine what?

You see the top of the first page it says Roman

Numeral IX Devastating Fallout?

22

A

Yes.

23

Q

The next Subsection is letter A.

24

A

I got that.

25

Q

TD Bank?

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A

Yes, sir.

2

Q

Then 308 is the next paragraph?

3

A

Yes, sir.

4

Q

And then the little letter "e".

5

A

Got it.

6

Q

Could you read that out loud, please?

7

A

E:

"On or about the summer of 2009 Rothstein

8

delivered to Caretsky $25,000 in cash for her continued

9

cooperation and participation in the Ponzi."

10

Q

You maintain that as a true statement?

11

A

Time frame I'm still vague on, but the delivery

12

of the funds, yes, sir.

13

Q

Well --

14

A

And the exact amount I'm a little vague on.

15

Q

I believe there's been testimony about how the

16

allegation regarding a payment, alleged payment, to

17

Mr. Spinosa came about.

18

an interrogatory in this case in which the Plaintiffs,

19

Mr. Scherer and his clients, filed a response indicating

20

that the answer to a question about where and when the

21

payment to Mr. Spinosa was made came from a discussion

22

Mr. Nurik had with you and in turn what he related to

23

Mr. Scherer about his discussion with you.

24

A

I lost you.

25

Q

Okay.

In fact, there's an answer to

Does the allegation contained in

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Paragraph 308e, that you just read, is that information

2

consistent with what you told your attorney who - and

3

authorized him to tell Mr. Scherer with regard to any

4

payment to my client, Ms. Caretsky?

5
6
7
8
9

A

It is consistent with what I've been saying

since the day I returned, so, yes.
Q

Including the time period in which that payment

was allegedly made, that being the summer of 2009?
A

No.

I've never locked in any time period since

10

I've come back for the very specific reason that I don't

11

recall certain specific time frames.

12

narrow it down as best I could but I don't know for

13

certain the exact time frame.

14

Q

I have tried to

Well, the summer of 2009 is not a specific

15

time, that's a period, a three-month period at least,

16

correct?

17

A

Correct.

18

Q

Now, are you saying you weren't the source of

19

the information referencing the time period in which the

20

payment was allegedly made as reflected in Paragraph

21

308e?

22

A

23
24
25

All I'm saying is that it could be incorrect as

to time frame.
(Whereupon, Caretsky's Exhibit No. 209 was
marked for identification.)

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BY MR. CRAIG:
Q

2
3

I'm going to next show you a document marked as

Defendant's 209 for identification.

4

A

Am I done with this exhibit for now?

5

Q

Yeah, you can set that aside.
For the record, this is Plaintiff's, Ira Sochet

6
7

as Trustee of the Ira Sochet Revocable Inter Vivos

8

Trust, Revised Answers and Objections to Defendants'

9

common set of interrogatories, under certificate date

10

February 17, 2011.
Could you take a look through those, please,

11
12

sir?

13

A

You want me to read this whole thing?

14

Q

No.

15

A

Okay.

16

Q

Have you ever seen it before?

17

A

No, sir.

18

Q

We'll speed this up too, turn to Page 19.

19

A

Sure.

20

Q

Up at the top of the page is Interrogatory No.

21

2.

I want you to read the Interrogatory, that single

22

paragraph first.

23

A

You want me to read it out loud?

24

Q

However you would prefer.

25

A

All right.

If you don't want me to read it

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into the record, I prefer to read it to myself.

2

Q

Okay.

Read it to yourself.

3

A

Okay.

4

Q

Turn to the next page.

5

A

Page 20.

6

Q

That would be correct.

7

A

Yes, sir.

8

Q

Could you read that out loud?

9

A

I can.

Third full paragraph.

"Rothstein indicated that there was

10

several hundred million dollars in trust accounts held

11

by TD Bank for the settlements.

12

Szafranski and Sochet in Rothstein's Bentley, one of the

13

many cars he showed to Sochet during his visit, to TD

14

Bank in Weston.

15

advised Sochet that the managers of that branch would

16

help demonstrate the overall safety of the proposed

17

deals by personally handing Sochet an envelope verifying

18

the balances in one of our trust accounts and the wires

19

into the accounts."

Rothstein then drove

Before entering TD Bank, Rothstein

20

Q

Let me stop you there.

21

A

Sure.

22

Q

So far, is what you have read consistent with

23

the protocol for what has been described by you as a

24

show?

25

A

Except for the car, yes.

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Q

2

Bentley?

3

A

4
5

Q

Continue reading aloud, please.
THE WITNESS:

He's cross-examining me, I'm

being careful.

8
9

I don't even recall having a Bentley then, I

think he meant the Rolls Royce.

6
7

You mean sometimes you weren't driving the

MR. SCHERER:
A

10

They look the same.

They don't look the same.
"Rothstein cautioned Sochet not to open the

11

envelope verifying the balances in the RRA trust

12

accounts and the wires into the account until Sochet

13

left the bank as Rothstein did not want the other

14

general employees of that branch knowing his

15

confidential business, because of the confidentiality

16

requirements under the Florida Bar Rules regarding these

17

confidential settlement investments."

18

Q

Was the second part of that paragraph which you

19

just read into the record consistent with the protocol

20

for the shows?

21

A

I'm not certain that that's the exact reason I

22

gave for not opening it but, yes, that is part of the

23

protocol, yes.

24
25

Q

Regardless of the reason the protocol was for

the investors not to open the envelope until he had

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2
3
4
5
6

left - he or she had left the bank, correct?
A

The protocol was to wait until we left the

bank, yes, sir.
Q

Can you continue reading on the following

paragraph out loud, please, sir?
A

Yes.

"Sochet accompanied Rothstein and

7

Szafranski into TD Bank where Rosanne Caretsky, Caretsky

8

and Matthew Brennan, Brennan were waiting for Rothstein,

9

Szafranski, Sochet and Rothstein.

Introduced Sochet as

10

an important client.

11

themselves as officers of the bank and Rothstein asked

12

Caretsky and Brennan whether they had the envelope for

13

Sochet."

14

Q

Caretsky and Brennan introduced

Let me stop you there.

Was that, what you just

15

read from the fourth paragraph, consistent with the

16

protocol for the show?

17
18

A

When you say the "protocol for the show," you

mean the way I wanted it to go?

19

Q

Yes, sir.

20

A

I don't know who Matthew Brennan is.

I

21

actually thought it was someone that worked for

22

Szafranski, I am apparently wrong.

23

as coming in, introducing the people to Caretsky,

24

getting the envelope, yes, that's correct.

25

Q

But it was -- as far

But, there were other TD Bank representatives

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who were involved in these so- called shows other than

2

Ms. Caretsky, correct?

3

A

To my knowledge, it was Caretsky and

4

Kerstetter.

5

Mr. Mejia did it.

There may have been an occasion where

6

Q

How about Mr. Garces in Deerfield Beach?

7

A

Yes, Deerfield.

8

branch, yes.

9

was played by Mr. Caputi.

10
11
12
13
14

Q

I'm thinking just the Weston

Mr. Garces in Deerfield Beach, I believe

Are you sure about that?

You just prefaced

that answer with -A

Yes.

I get what you're saying.

In Deerfield

Beach, Caputi played Garces.
Q

I don't know if you're getting what I'm

15

saying.

16

you at the beginning of the deposition, I don't want --

17

I don't care what you believe, I don't care what you

18

think, I don't care what you surmise, I don't care what

19

you assume.

20

guess.

21

that, sir?

22

What I'm saying is when I tried to go over with

All I want are facts.

I don't want you to

Too much at stake here, wouldn't you agree with

MR. SCHERER:

Objection, form.

23

A

Sure.

24

Q

You wouldn't want -- people's liberty is

25

potentially at stake.

Do you agree with that based on

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what you had to say last week and this?

2

A

To some extent, sure.

3

Q

You wouldn't want a decision about their

4

liberty to be based upon one of your guesses; would you?

5

A

No, sir.

6

Q

That wouldn't be fair; would it?

7

A

Unless my guess leads to information showing

8

the culpability, that would be fair.

9

Q

You mean unless you guessed correctly?

10

A

No.

11
12

I mean that if my --

MR. SCHERER:
A

Object to the form.

-- if my information - whether I'm taking a

13

guess or speculating about something or giving my

14

opinion on something - if that leads investigators to

15

solid information regarding culpability then, yes, that

16

would be helpful and certainly be something upon which

17

their culpability should be based, yes.

18

Q

So, as far as TD Bank representatives other

19

than Ms. Caretsky who you recall as being involved with

20

the so-called shows in which you participated, there

21

would be Ms. Kerstetter, correct?

22

A

Correct.

23

Q

Mr. Mejia?

24

A

I seem to recall him once, but I don't have

25

specific recollection so the answer is, I do not recall

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at this moment.
Q

2

I think you seemed to recall him when

3

Mr. Scherer was asking you questions also; does that

4

ring a bell?

5

A

No, because when I was discussing with

6

Mr. Scherer I was also discussing Caputi.

7

to guess.

8

Q

9

You recall the meeting with Mr. Garces at

Deerfield now?

10
11

I don't want

A

No.

I recall when I went to Deerfield, Caputi

being there.

12

Q

How many times --

13

A

If I met Mr. Garces it would have just been to

14

say hello.

15

Q

Do you recall taking Jack Simony - planning to

16

take Mr. Simony to the Weston branch and Mr. Simony

17

receiving a call from his office in New York and a

18

request was made apparently from up there to go to a

19

different branch and then all of a sudden plans had to

20

be changed and arrangements had to be made for the show

21

to be done at the Deerfield branch; do you recall that

22

occurring?

23

A

I do.

24

Q

And Mr. Caputi had nothing to do with that; did

25

he?

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A

Nothing to do with changing the plans?

2

Q

Nothing to do with that show at Deerfield on

3

that occasion where there were last minute changes at

4

the request of Mr. Simony?

5

A

At this time I don't specifically recall.

6

Q

That portion of the first part of the fourth

7

paragraph that you read where you indicated that you

8

would -- strike that -- where it indicates that you

9

would introduce Mr. Sochet as an important client; is

10

that accurate?

11

A

Yes.

12

Q

Whenever you did these shows you didn't

13

introduce any of the people that you brought with you,

14

the so-called investors as such?

15

A

No, sir.

16

Q

Could you read the last part of that paragraph

17
18

please, sir?
A

"Thereafter, Caretsky and Brennan personally

19

and directly handed Sochet a sealed envelope in front of

20

Scott Rothstein and Mr. Szafranski.

21

TD Bank he opened the envelope and read the balances in

22

the account.

23
24
25

Q

After Sochet left

See attached copies."

Is what you just read in that last portion an

accurate reflection of the protocol for the show?
A

With the exception of Mr. Brennan's

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involvement, yes.

2

(Whereupon, Caretsky's Exhibit No. 210 was

3
4

marked for identification.)
BY MR. CRAIG:
Q

5

Mr. Rothstein, I'm showing you what's been

6

marked as Defendant's Exhibit 210 for identification.

7

And for the record, these four pages are taken from your

8

power point.
You looked at these last week, I believe.

9
10

A

Okay.

11

Q

Do you remember looking at these last week?

12

A

I remember looking at the last two pages, I

13

don't remember seeing the first two.

14

fact, I didn't see the first two pages.

15
16
17
18

As a matter of

Actually, I think, the only one I saw was Page
3.

So no, I saw those last two pages.
Q

We know you saw Page 3.

You said something

about dancing with Ms. Kerstetter?

19

A

Yes.

20

Q

Now, why don't we take a look at Page 1?

21

A

Okay.

22

Q

Do you recognize any of the individuals who are

23

depicted on Page 1 of Exhibit 210?

24

A

Yes, the man off to the left is Bill Boockvor.

25

Q

That would be Uncle Bill?

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A

Uncle Bill, correct.

2

Q

And I believe you identified this series of

3

photographs or they were identified by Mr. Scherer as

4

stills taken from a video depicting one of the shows,

5

that being the show on September 15, 2009 at the

6

Weston - excuse me, at the 17th Street branch of TD

7

Bank?

8

A

9
10

The first two pages I would call pre show, the

second two pages show.
Q

And you call the first two pages pre show

11

because they depict Mr. Brock, Uncle Bill's early

12

arrival with an envelope in his hand before you arrived

13

with the investor, correct?

14
15
16
17
18

A

He should be carrying a manilla folder with the

balance statements in it.
Q

Isn't that what he has in his hand on Page 1,

that being his left hand?
A

I can't tell what it is in his left hand.

It's

19

something sticking out of his left hand but it's

20

sideways, it actually looks like his finger is really

21

long.

22

Q

Two feet long?

23

A

Yes.

24
25

Obviously it's not his finger.

He's holding

something in his hand but I can't tell what it is.

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2

Q

Fair enough.

Do you recognize anybody else in

that photograph?

3

A

In the first photograph?

4

Q

Yes.

5

A

No, I can't make anyone else out.

6

Q

Top right, does that appear to be

7

Ms. Kerstetter?

8

A

I have no idea who that is.

9

Q

Second page, who do you recognize in that

10

photograph?

11

A

Second page I recognize Bill Boockvor.

12

Q

He's in the middle holding a piece of paper?

13

A

He is.

14

Q

Glasses half way down his nose?

15

A

Yes, sir.

16

Q

The third page you've already identified?

17

A

I have.

18

Q

The gentleman standing directly behind you with

19

a sports jacket and looks like a sport shirt on, do you

20

know who that individual is?

21
22

A

I think we figured out it was Chris Padaras but

I don't recognize him specifically.

23

Q

It resembles Mr. Padaras?

24

A

Yes, in the limited extent I can tell from

25

this, yes.

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Q

The last page?

2

A

Yes.

3

Q

Does that photo - does that more clearly depict

4

and enable you to identify that individual as

5

Mr. Padaras?

6

A

No.

7

Q

And who is standing to your left?

8

A

To my left, Ms. Kerstetter.

9

Q

And you have a manilla envelope in your hand?

10

A

Yes, but that's odd.

11

Q

That's odd?

12

A

Yes.

13

Q

What is odd about it?

14

A

Because normally, as I recall, at every show

15

the statements were handed to me in a letter size,

16

meaning the kind you put a letter in and fold it up,

17

white TD Bank envelope.

18

given to me in this envelope.

19

I would normally get from Ms. Caretsky or what I

20

remember getting from Ms. Kerstetter at the other

21

branch.

22

Q

So, I'm not sure why it's being
It's different than what

Again, I'll stand corrected, but as I recall

23

from your testimony last week, you indicated, I guess,

24

initially that you thought there were 24, couple dozen

25

shows and you backed that number down to a dozen and

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then I think you settled on 10 to 12.

2

correct, I'm talking about in total?

3

A

4

12, yes.

5

Q

Does that sound

I would say in total somewhere between six and

Now, how many of those shows did you bring the

6

false balance statement with you and put it in the

7

envelope with the letter?

8

A

My recollection, I don't specifically recall.

9

Q

Did you do that?

10

A

I don't recall ever doing that.

11

Q

Let me see if I can help refresh your

12

recollection.

13

A

Okay.

14

Q

Mr. Nurik, could you hand him the transcript

15

from the Day One afternoon session?

16

A

I have it here.

17

Q

125 beginning Line 6 through Line 15.

18

A

Sure.

20

Q

Six.

21

A

23

Could

you read it out loud, please, sir?

19

22

What page?

Hang on.

Page 125, line what?

"Let me ask you this, do you have a

recollection as to how that statement got there?
Answer:

Well, one of two things happened, or

24

one of several things; either Bill Brock brought it to

25

Ms. Caretsky as the normal process was, that's Boockvor,

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he goes by Brock.

2

Question:

3

Answer:

Right.
As was our normal process when we were

4

doing this - or I brought it with me and put it in the

5

letter, one or the other."

6

Q

Does that help refresh your recollection of you

7

having brought the fake account balance sheet with you

8

and you putting it in the envelope with the letter?

9

A

The only time that I did that, to the best of

10

my recollection, was when I was meeting Mr. Caputi.

11

don't recall doing that any other time.

12
13

Q

I

Have you had an opportunity to review Caputi's

deposition testimony in this case?

14

A

No, sir.

15

Q

Have you had an opportunity to review the

16

transcript of his testimony in the Coquina trial last

17

week?

18

A

No, sir.

19

Q

Are you aware that Mr. Caputi has testified

20

that on all three visits, he identified there being

21

three visits only, which is consistent with the charging

22

documents, I believe, information, the stipulated

23

statement of facts, plea agreement, and the sentencing

24

colloquy, that he went there on three occasions and on

25

each occasion he was handed an envelope by a

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co-conspirator, which he subsequently identified as

2

Mr. Brock.

3

A

I was not aware of that.

4

Q

Is that true?

5

A

It's certainly possible, yes.

6

Q

That would mean that you never handed

7
8
9
10

Are you aware of that?

Mr. Caputi an envelope?
A

That's why I said, "to the best of my

recollection."
Q

So, were you guessing?

11

MR. SCHERER:

Object to form.

12

THE WITNESS:

I was giving you my best

13
14
15
16

recollection.
BY MR. CRAIG:
Q

Well, if your best recollection means you're

not sure or you're guessing, I don't want it.

17

MR. SCHERER:

18

(Whereupon, Caretsky's Exhibit No. 211 was

19
20
21

Objection, form.

marked for identification.)
BY MR. CRAIG:
Q

Mr. Rothstein, let me show you what's been

22

marked as Exhibit 211 for identification.

23

please take a look.

24

numbered TD/Razor 001855 through 1860.

25

A

If you would,

It's a composite exhibit Bates

Yes.

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Q

And the last page of it is a, I think what you

2

previously identified as an account letter, dated

3

October 29, 2008.

4

A

Yes.

5

Q

Could you review these documents and tell me

6

whether you recognize them or have ever seen them

7

before?

8

A

9

Give me one minute.
MR. SCHERER:

10

MR. CRAIG:

11

MR. SCHERER:

Is that marked as an exhibit?

12

to have it, yes.

13
14
15

Yes, 211.

Do you want a copy?

If you have an extra I would like
I'll share it with Chuck.

THE WITNESS:

Okay.

BY MR. CRAIG:
Q

My question or questions regarding this

16

particular exhibit are brief.

17

have already testified to this when Mr. Scherer was

18

examining you.
Was this the October 29, 2008, was that the

19
20

And I believe you may

date of the first show?

21

A

I don't specifically recall.

22

Q

You indicated that there came a point in time

23

when my client was on board, so to speak, or became a

24

player.

25

A

Do you recall that testimony?
There was a point in time when I enlisted her

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assistance, yes.

2

Q

3

that.

And when was that point in time?

Or strike

Was that point in time when you asked

4
5

Mr. Spinosa if he could have Ms. Caretsky sign what's

6

been come to known as an account letter?

7

A

It was subsequent to the three Caputi visits.

8

Q

It was after the three Caputi visits?

9

A

When was the first Caputi visit and the last

10
11
12
13
14
15
16

one?
Q

According to Mr. Caputi he posed as a plaintiff

in your law office on September 25, 2009.
A

No.

My apologies.

I'm not talking about plaintiff visits.

Q
either.

Okay.

I'm talking about bank visits.
I wasn't talking about plaintiff visits

I don't even know what they are.

17

A

You just said one.

18

Q

I'm giving you a point of reference in time.

19

Mr. Caputi has testified and all of the charging

20

documents and documents associated with his plea

21

indicate that he posed as a plaintiff in your office on

22

September 25, 2009.

23

month before that was the third visit that he made to

24

the Weston branch, which would have been August of

25

2009.

He testified that approximately a

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A

When was the first?

2

Q

Somewhere around June or July of 2009.

3

A

I just don't have a specific recollection of

4

the date.

5

Q

6

Okay.

Were there shows that took place before

June of 2009?

7

A

It doesn't seem probable.

8

Q

Why doesn't it seem probable?

9

A

I really need to put it in context.

No, sir.

The very

10

first -- June of 2009 is the first one you're saying

11

Caputi testified to?

12

Q

He had no exact date.

13

A

Well, I'm relying on you giving me an exact

14

date.

15

Q

16

He backed it --

I apologize.
No.

let me finish.

I gave you what I gave you.

You didn't

I'll do it again for you.

17

A

I'm sorry?

18

Q

You don't know when the first show was; is that

19

correct?

20

A

I don't.

21

Q

Do you know what year it was in?

22

A

My recollection is it was in '08 sometime.

23

Q

Does October 29th of 2008 help refresh your

24
25

I don't recall specifically.

recollection?
A

No.

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Q

Do these documents that comprise Composite

2

Exhibit 211, are they consistent with the run up to the

3

show?

4

A

This particular set I don't recall seeing

5

before.

6

seen regarding the run-up to the show, yes.

But it looks like other documents that I've

7

Q

So they are consistent with the run up to the

8

show?

9

A

They seem to be, yes.

10

Q

So, if there was a show -- Strike that.
So, if these in fact are referencing a show,

11
12

there had to be a show on or about October 29th of 2008,

13

correct?

14

A

Yes.

Judging from the fact that there is a

15

letter here signed by Ms. Caretsky dated October 29,

16

2008, there had to be a show on or about that date.

17

Q

And if there was a show on or about that date,

18

that would have been about the time that Ms. Caretsky

19

came on board, in your words?

20

A

I can't say that for certain because of

21

Mr. Brock's involvement and Mr. Caputi's involvement as

22

well, and I'm not certain that they are correct as to

23

their dates.

24
25

Q

Well, didn't you testify last week in response

to Mr. Scherer's questions that the first time

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Ms. Caretsky became involved or a player was when you

2

had Frank - he assured you that you could trust her to

3

write one of these account letters; isn't that a fact?

4
5
6
7
8
9

A

It is a fact that Frank told me I could trust

Ms. Caretsky, yes.
Q

At that point in time that was when you decided

that she was a player, correct?
A

It was subsequent to that call that I

specifically told Ms. Caretsky that I needed to show

10

inflated bank statements to clients to secure additional

11

business.

12

Q

13
14

And that would have been subsequent to the

October 29, 2008 letter that's before you, correct?
A

You're assuming that.

I don't know.

We would

15

have to get exact testimony or documentary evidence as

16

to what date the first show was.

17
18
19
20

I don't want to guess.

(Whereupon, Caretsky's Exhibit No. 212 was
marked for identification.)
BY MR. CRAIG:
Q

I'm showing you what's been marked as

21

Defendant's 212 for identification, it's a composite

22

exhibit TD/Razor 001841 through 1851.

23

look at those documents and tell me if you recognize

24

them, and if so, how?

25

A

Could you take a

I've seen some of these pages before but not

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2
3

the entire set of documents.
Q

Does this appear to be the run up for the show

that took place at the Deerfield branch?

4

A

It does.

5

Q

And I believe you previously testified that it

6

was at this point in time that you believed that

7

Jennifer Kerstetter was participating in these shows?

8
9
10
11
12
13
14

A

I don't recall the date that she got involved

at that level.
Q

You don't recall that you testified to those

facts last week?
A

You are saying, "those facts."

I've been

testifying for six days.
Q

Pertaining to my last -- Did you testify last

15

week that the first time you believed Jennifer

16

Kerstetter was involved in the show to the extent she

17

was replacing real account balances with fake ones that

18

you created or had created was on or about the time that

19

the show took place at the Deerfield branch?

20
21

A

I don't recall saying that.
MR. CRAIG:

I don't have another copy of this.

22

Let me ask you if you recall this exchange.

23

was from on Page 72.

24

the morning, the first day morning?

25

MR. SCHERER:

This

Does anybody have a copy of

Morning or afternoon?

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MR. CRAIG:

2
3

BY MR. CRAIG:
Q

Let me read it to you and see if we can speed

it up, and I'll hand it to you after.

6
7

A

That's fair enough.

MR. SCHERER:

9

MR. CRAIG:

What page?
72.

if it's actually 72.

11

paginated my --

That would be Monday morning

10

12

MR. SCHERER:

13

MR. CRAIG:

15
16
17
18

I trust you to read it to

me.

8

14

Mr. Lichtman got

through more than 72 pages in the morning.

4
5

Morning, I think.

But my co-counsel has not

Which part?
What part?

Morning.

BY MR. CRAIG:
Q

Line one:
Question:

"How about Ms. Kerstetter, did you

have any reason to believe that she was a player?"
Answer:

"No.

Actually the very first time

19

that I heard she was going to be involved I

20

panicked."

21

Question:

22

Answer:

"Tell me why."
"Because I heard that Ms. Caretsky was

23

not going to be at the bank and that we were going

24

to go doing this with someone new.

25

middle of a large criminal conspiracy and you don't

We're in the

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want to inject new players unless you have to.

I

2

was then told by Mr. Spinosa and by Bill Brock that

3

everything was fine.

4

Ms. Kerstetter and that she was all a go, and it

5

went fine."

Ms. Caretsky had talked to

Does that help refresh your recollection as to

6
7

when it was that Ms. Kerstetter became a player, in your

8

words?

9

A

No, because my recollection is that that

10

actually occurred at the Weston branch, not the

11

Deerfield branch.

12

Deerfield incident.

13

That doesn't say anything about the

My recollection is that there was a prior

14

occasion where Ms. Caretsky was not going to be

15

available.

I was very concerned, as I previously

16

testified.

And when I went to the Weston branch it was

17

actually handled by Ms. Kerstetter.

18

my recollection.

19

all - the letter by Mr. Garces and possibly Mr. Caputi's

20

involvement.

21
22

Q

That's the best of

But not Deerfield.

I think that was

Now, during these shows I believe you narrowed

them down to six to 12; is that correct?

23

A

I'm guessing.

24

Q

You have no idea how many shows there were?

25

MR. SCHERER:

I don't want to guess.

Objection, form.

You asked him

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not to guess.

2

THE WITNESS:

You don't need to rely on my

3

testimony that way.

4

the number of letters and the number of fake bank

5

statements.

6

shows there were.

7
8
9

All you need to do is look at

That will tell you exactly how many

BY MR. CRAIG:
Q

How long were you in the presence of the TD

Bank representatives during these shows; that is, from

10

the point you walked in with an investor, greeted them,

11

until the point you were handed an envelope, you turned

12

around and walked out?

13

A

It was very quick, several minutes.

14

Q

Two or three minutes?

15

A

I don't want to guess.

16

Q

And --

17

A

Might have been more sometimes, might have been

18

less.

19

Q

20

Several minutes.

Can you tell me whether my client was involved

in more than 10 shows?

21

A

I would be guessing.

22

Q

More than 20?

23

A

I'd be guessing.

24

Q

More than a 1000?

25

A

That's crazy.

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Q

Twenty is not crazy?

2

A

Given the extent of this crime, I don't

3

believe - I know you don't care what I believe, but I

4

don't believe she did 20 of these things.

5

believe I did 20 of them.

I don't

6

Q

Okay.

7

A

So --

8

Q

Let's assume you did 20 of them with my

9

client.

10

MR. SCHERER:

11

MR. NURIK:

12

15

I thought we weren't going to

assume anything.

13
14

Object to form.

MR. SCHERER:

Or believe.

BY MR. CRAIG:
Q

I want you to assume you did 20 of them.

16

MR. SCHERER:

17

MR. CRAIG:

18

21

Why don't you let me finish my

question?

19
20

Objection.

MR. SCHERER:

You told him you didn't want him

to assume.
BY MR. CRAIG:

22

Q

I'm asking you a hypothetical question.

23

A

Go ahead.

24

Q

You know what they are?

25

A

I do.

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Q

Okay.

Assume, indulge me and Mr. Scherer, that

2

you participated in 20 shows with my client.

3

fact, that's true and they lasted two to three minutes

4

apiece, then you would have spent a total of 60 minutes

5

in the presence of my client; is that a fair statement?

6
7

A

During the actual conduct of criminal activity

where the documents changed hands, fair statement.

8

MR. NURIK:

9

THE WITNESS:

10

If, in

Don't assume anything.
I'm assuming.

The question said

assume.

11

Assuming what you're saying is correct,

12

assuming that I spent that many minutes, assuming

13

that she did it 20 times, your math is assumingly

14

correct, I assume.

15
16

BY MR. CRAIG:
Q

Would it be a fair statement, Mr. Rothstein,

17

that your total contact with Ms. Caretsky over the

18

approximately two years of banking relationship you had

19

with TD was an hour or less?

20

A

I'd be guessing.

21

Q

Ms. Caretsky never knew you were involved in a

22

Ponzi scheme; isn't that true, sir?

23

A

I don't believe she knew that.

24

Q

She didn't know you were involved in any type

25

No, sir.

of fraud, correct?

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A

Well, showing fake bank statements to anybody,

2

even if it's just for the purpose of inducing them to do

3

more business with you and facilitating that by placing

4

it with a TD Bank letter, I believe, and I only believe,

5

constitutes fraud.

6

But if you're asking me, was she aware of the

7

investment scam that I was running?

8

knowledge, no.

9
10

Q

To the best of my

Let's move on to the alleged payment that you

made to her.

11

A

Okay.

12

Q

You claim that you gave her $25,000 on a single

13

occasion; is that correct?

14

A

Between 25 and 30,000, yes.

15

Q

Where did the money come from?

16

A

Me.

17

Q

Where did you keep the money?

18

A

In my office.

19

Q

What denominations?

20

A

Hundreds.

21

Q

All hundreds?

22

A

Always.

23

Q

Where did you get the money from?

24

A

Banks, organized crime, clients, law

25

enforcement.

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Q

What kind of --

2

A

All kinds of different places.

3

Q

What kind of envelope did you place it in?

4

A

It was a large accordion type envelope.

5

kept them in the office.

6

the side.

7

is letter, right?

We

They had a big accordion on

A little bit -- What's that size?

8 1/2 x 11

8

Q

Correct.

9

A

Bigger than that, legal and accordion.

10

Q

And this occurred after a show; is that

11

accurate?

12

A

I don't recall whether it occurred after a show

13

or it was a separate visit out there.

14

it either happening -- I don't recall which one it was.

15

Q

I seem to recall

Didn't you tell me earlier and tell Mr. Scherer

16

last week that the only contact you had with my client

17

was during the course of a show?

18

A

No, that's what you said.

19

Q

Didn't you tell Mr. Scherer that last week?

20
21

It's a question.
A

I thought I testified in the beginning of this

22

that I had contact with her in my office, at Bova, and

23

at the bank.

24

driving out there for any other reason, so --

25

Q

It's very -- you know, I don't recall

That wasn't my question.

My question was,

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didn't you tell Mr. Scherer last week that the only

2

contact that you had with my client ever was in the

3

course of the so-called shows?

4

A

That sounds correct.

5

Q

Are you changing your testimony now?

6

A

No, sir.

7

Q

Well, you made a special visit or an extra

8

visit other than a show to deliver the $25,000.

9

testimony is different than your testimony last week in

10

That

that regard, correct?

11

A

My statement is --

12

Q

Correct?

13

A

-- what my statement is.

I understand what

14

you're trying to do, but I'm not going down that road.

15

My statement is what my statement is.

16

Q

During this visit, whether it was part of a

17

show, after a show, or whatever, you claim you asked my

18

client to step outside for a chat; is that accurate?

19

that what happened?

Is

20

A

I did ask her to come outside, yes.

21

Q

That means you were in the bank when you asked

22

her to step outside?

23

A

Yes.

24

Q

Where were you in the bank when you asked her

25

that?

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A

I don't recall.

2

Q

I believe you testified that you're aware that

3

there were surveillance cameras in the bank?

4

A

Sure.

5

Q

Did you know it at the time or you've come

6

to --

7

A

I knew it before we did the very first show.

8

Q

Had you scouted the bank to see where the

9

cameras were?

10

A

Yes, sir.

11

Q

Where were they located?

12

A

I don't recall.

13

Q

Are you aware that there was a camera located

14

behind the tellers' counter that was trained on the

15

front doors?

16

A

I don't recall.

I assumed every time I went in

17

that bank that every single thing that I did was filmed

18

whether I was walking to the bathroom or walking in and

19

out of the front door or in and out of the conference

20

room or in and out of the back offices.

21

Q

If this occurred in the summer of 2009 --

22

A

No, no.

23

Q

Wait, wait.

24

A

Go ahead.

25

Q

I understand that you're not accepting that

Let me finish my question.

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premise.

But I'm saying, if it occurred --

2

A

Fair enough.

3

Q

-- in the summer of 2009 as you have indicated,

4

that is, you asked her to step outside for a chat while

5

you're inside the bank, then you and her stepping

6

outside together would have been captured by the

7

surveillance camera behind the tellers' counter?

8
9

A

I don't think so because my recollection is

that I went out -- I didn't walk in there with the

10

envelope.

11

car, and she met me outside.

12

through the doors together.
Q

13
14

I walked out, retrieved the envelope from my
I don't recall walking

When you walked outside were you alone with

her?

15

A

Eventually, yes.

16

Q

Eventually as you walked away from the

17

building?

18

A

Yes.

19

Q

Which direction did you walk?

20

A

I don't recall.

21

Q

Did you drive there yourself or did you have a

22

driver drive you there?

23

A

24

me there.

25

Q

My recollection is that I had my driver drive

So this was not part of a show?

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2

A

No.

There were times when I did a show that I

had a driver.

3

Q

I'm talking about this particular occasion.

4

A

I just don't recall.

It's possible that I

5

stayed there, but I don't think so.

6

and I'm trying to recollect it, it seems to me that it

7

was not part of a show and it was a very specific visit

8

for a specific purpose.

9
10

Q

As I'm sitting here

Was there anybody around when you handed her

the envelope?

11

A

No, sir.

12

Q

There are no witnesses to you doing that,

13

correct?

14

A

No, sir.

15

Q

And you indicated that after you handed her the

16

envelope that you told her it was a gift for you taking

17

such good care of us.

18

A

Is that what you told her?

I believe the words I used with her were

19

something to the effect of, Thanks for taking such good

20

care of us.

21

Q

So this was a gift from you?

22

A

It was payment for doing something illegal, but

23

I suppose you could consider it whatever you wish to

24

consider it.

25

Q

She never asked for this money, did she?

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A

No.

Actually I don't recall -- I recall very

2

few people during the entire course of the Ponzi scheme

3

asking me for payoffs.

4

13 million I gave him.

Mike didn't even ask me for the

5

Q

6

did she?

7

A

No, sir.

8

Q

The only thing she ever asked you for was a

9
10
11

She didn't know anything about a Ponzi scheme,

$2,500 donation for the Special Olympics, which I
believe was July of that year; do you remember that?
A

Yes.

She never asked me for money for doing

12

what she was doing.

13

beginning when she did it, she wasn't being paid.

As a matter of fact, in the

14

Q

She was doing it for free then?

15

A

Initially, yes.

16

Q

For the first eight or nine months?

17

A

I don't know the time period.

18

Q

Doesn't that sound silly?

19

A

No, sir.

20

Q

Far fetched?

21

A

No, sir.

Not at all.

Not at all, not given

22

the context of everything that was going on at that

23

bank.

24

Q

25

No, sir.
I believe you mentioned the fact that you were

aware that Rosanne adopted a little girl along the way?

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A

I was.

2

Q

How did you become aware of that?

3

A

Someone in my office told me, and she also

4
5

wrote it to me in an e-mail.
Q

And you thought - you didn't commit to this -

6

that you or your office may have sent her a present.

7

you remember that testimony last week?

Do

8

A

I do.

9

Q

Would you be surprised to find out that you or

10

your office did not send her a present?

11

A

I would be shocked.

12

Q

Were you also aware that she adopted the little

13

girl, Reese (phonetic), towards the end of June of the

14

summer of 2009?

15

A

I don't recall.

16

Q

That she was on maternity leave the rest of the

17

summer, the next nine weeks and wasn't in the office?

18

A

I do recall her being on leave.

19

Q

So you couldn't have had any contact with her

Yes, sir.

20

during the period of time that you recall her being on

21

leave, correct?

22
23

A

No.

I think you can safely rule that out as

the time I paid her.

24

Q

Let's talk a little bit about Uncle Bill.

25

A

Sure.

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2

MR. CRAIG:
another exhibit.

3
4
5
6

Before we do this, let's mark

(Whereupon, Caretsky's Exhibit No. 213 was
marked for identification.)
BY MR. CRAIG:
Q

I'm showing you what's been marked as

7

Defendant's Composite 213 for identification.

This

8

consists of four pages which are not Bates stamped.

9

A

Okay.

10

Q

Could you take a look at that document and tell

11
12
13

me if you recognize it.
A

Is Page 3 supposed to have something on it,

because it doesn't?

14

Q

This is how it was produced to me.

15

A

Okay.

16

Q

A waste of paper, right?

17

A

I do recognize it.

18

Q

What do you recognize it as?

19

A

A series of e-mails between Mr. Damson,

Yes, I recognize it.

20

Mr. Spinosa, and I.

21

of e-mails between Mr. Damson, Spinosa, and I.

22
23

Q

Well, actually no.

Yes, a series

The last page of which is a so-called lock

letter dated August 17, 2009, on RRA letterhead?

24

A

Yes.

25

Q

Signed by yourself?

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A

Yes.

2

Q

Counter-signed purportedly by Mr. Spinosa?

3

A

Yes.

4

Q

Do you recognize that as being the first lock

5

letter?

6
7
8
9
10
11
12

A

I don't recall what date the first lock letter

was.
Q

Do you have reason to doubt that that was the

first lock here?
A

I don't have a reason to think either way.

I

don't recall the first date.
Q

If that was in fact the first lock letter, that

13

would have been the occasion in which you testified that

14

Ms. Caretsky questioned Mr. Spinosa.

15

testified you had a discussion with her about, What's

16

the purpose of this lock letter?

17

view of the fact that you can move the money on-line

18

from Treasury Direct at any time you want.

19

remember that?

And I believe you

I don't get it, in

Do you

20

A

I had a conversation with her about lock

21

letters.

I don't recall which lock letter I was

22

discussing.

But it was our form of lock letter, yes.

23

Q

Okay.

24

A

I think it was more directed towards the ones

25

that Frank was ultimately drafting.

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Q

In fact, if this was the first lock letter,

2

this discussion would have occurred a year to nine

3

months after she was on board as a player, correct?

4
5

A

I don't know when the conversation occurred.

don't want to guess.

6

Q

Getting the hang of it, huh?

7

A

You don't want any guessing.

8
9

I'm not giving

you any guessing.
Q

Let's talk about Uncle Bill.

How is Uncle Bill

10

related to you other than being your uncle?

11

mother's brother?

Is he your

12

A

My mother's brother.

13

Q

Your mother's brother?

14

A

My mother's brother.

15

Q

How old is Uncle Bill?

16

A

Uncle Bill is in his mid 60s.

17

Q

Is he originally from South Florida or did he

18

move down here at some time?

19

A

From New York.

20

Q

When did he move down here?

21

A

I don't recall.

22

Q

Was he married?

23

A

He is married right now, yes.

24

Q

Was he married during the operative period of

25

I

time, 2006 or '07 through 2009?

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A

He was married the entire time, but he may have

been separated from time to time.

3

Q

Tell me about his background.

4

college?

What kind of work did he do?

5

A

6

High school.

He was in the car business for

many years.

7

Q

Used car salesmen?

8

A

Used car salesman?

9

Did he go to

I suppose, yes, at some

point in time he sold used cars.

He was the director of

10

leasing for Braman, for all the Braman car dealerships

11

for many years.

12
13

Q

Did he work in the car sales business all the

way up to the point in time he came to work for you?

14

A

15

that.

16

But the bulk of the time of his employment was always in

17

some form of the car business.

I don't remember if he had jobs in between
He was always involved in one job or another.

18

Q

Okay.

19

A

Except for a time when he owned a night club

20

many years ago in New York.

21

Q

A night club like a gentleman's club or --

22

A

No, no.

23

Q

-- the regular kind?

24

A

A regular night club.

25

Q

When was it that he came to work for you?

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A

You'd have to check the financial records.

I

don't want to guess.

3

Q

Do you know the year he came to work for you?

4

A

No.

5

Q

Do you know the circumstances surrounding how

6

it was he came to work for you?

7

A

I asked him to come to work for me.

8

Q

And at that point in time you asked him to come

9
10

to work for you, did you have a plan to involve him in
your Ponzi scheme?

11

A

Nope.

12

Q

When he came to work for you what was his job

13

title and what were his job duties?

14

A

When he originally came to work for me?

15

Q

Correct.

16

for you?

17

A

It was on and off.

18

Q

Did he have another job during this period of

19

time?

20

A

He may have.

21

Q

During let's say the last year of your Ponzi,

22
23

How many times did he come to work

I don't specifically recall.

what was his title and what were his job duties?
A

He was some type of director.

Director of law

24

office management, director of something.

25

at that point in time was to assist Irene with some

And his job

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basic bookkeeping stuff, just basically help the law

2

firm keep running.

3

Q

Irene Stay was your CFO?

4

A

Yes.

5

Q

And when was it that Uncle Bill first became

6

involved in your Ponzi scheme on any level of illegal

7

activity?

8

A

9

Now you're getting into all the tentacles.

You're including the political stuff, everything else?

10

Q

Yes.

11

A

I don't recall a specific date.

12

Q

What tentacle did he first become involved in?

13

A

I'd be guessing.

14

Q

When did he first become involved in the Ponzi?

15

A

It would have been at the time that money was

16

being moved from account to account and Irene wasn't

17

there.

18
19

Q

Would that be during the time where the

majority of your money was at Gilbraltar or TD or --

20

A

Gilbraltar.

21

Q

Was he actively involved in the Ponzi while the

22

money was at Gilbraltar?

23

A

I don't recall specifically.

24

Q

Was he involved in the Ponzi while the money

25

was at Gilbraltar?

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A

I don't recall.

It's hard to pinpoint because

2

a lot of what he was doing initially was just doing

3

whatever I asked him to do without questioning me.

4

think there came a point in time later on where he

5

realized that what I was doing was illegal and just

6

continued to assist me.

7
8

Q

You emphasized "without questioning you."

A

No.

10

Q

He's a loyal soldier?

11

A

Yeah.

12

Q

You wouldn't have expected him to act as a

That's just the way he was.

He was a good soldier.

Yes, sir.

rogue employee, so to speak?

14

A

No, sir.

15

Q

It would have shocked you for him to do

16

something that you either told him not to do or you

17

disapproved of?

18
19

That

was part of his job duty, to just do as you say?

9

13

So I

A

It wouldn't have shocked me if he had said

something to me about what I was doing, but he didn't.

20

Q

Did you keep him on a short leash?

21

A

No.

22

with Bill.

23

Q

Did he have access to money?

24

A

I'm certain that he did, yes.

25

Q

Large sums of money?

There was no such thing as a short leash

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A

law firm's money or access to -Q

3
4

When you say access, do you mean access to our

Strike that.

I'll get back to that in a

second.

5

A

Okay.

6

Q

What was his salary or what was his wage?

7

A

I don't recall.

8

between a hundred and $150,000 a year.
Q

9
10

Straight salary, no end of the year bonus,

commission?

11
12

I think we were paying him

A

I may have given him a bonus.

The records will

speak to what I gave him exactly.
Q

13

You have spoken on numerous occasions about

14

your stash or stashes; one in your office, one in your

15

credenza?

16

A

My credenza was in my office, yes.

17

Q

Did you have a credenza at home with a stash in

19

A

I didn't keep very much cash at home relatively

20

speaking.

21

Q

That was your stash, correct?

22

A

Which one?

23

Q

The one in your credenza in the office.

24

A

That was, for lack of a better term, Ponzi

18

25

it?

money.

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2

Q

Was it a community stash?

Did more people than

you have access to it?

3

A

No.

4

Q

You're making a face like that's a ridiculous

5

question.

6

A

Given the way - I had some partners that spent

7

money much like I did, well not close to what I did, but

8

in the same vein as I did, and giving them access to

9

that much cash probably would not have been a good idea.

10
11

Q

In addition to your partners, Bill Brock didn't

have access to your stash either, did he?

12

A

No, sir.

13

Q

So, if he ever gave money or claims to have

14

given money to Ms. Caretsky, that would have come from

15

someplace else other than your stash, correct?

16
17
18

A

He would have taken it from -- yeah, it would

have come from someplace else.
Q

And you've already told us the only money

19

you're aware of Ms. Caretsky receiving in connection

20

with your illegal activity in the Ponzi scheme was the

21

$25,000 on that one occasion?

22
23
24
25

A

It was between 25 and $30,000 on one occasion.

She never took anything else from me.
Q

No, sir.

And she never took anything else on your behalf

to your knowledge, correct?

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A

To my knowledge, no.

2

Q

And if Bill had given her a large sum of cash,

3
4

you would have known about it, wouldn't you?
A

No, I wouldn't have known.

Bill was always

5

looking out for me and always looking out for the law

6

firm and looking out for its best interest even on the

7

illegal stuff.

8
9
10

So is it possible that he greased some wheels
somewhere?

Sure.

But the truth is I don't know one way

or the other.

11

Q

Let's talk about the shows some more.

12

A

Okay.

13

Q

I believe you testified, and I may be wrong

14

about this, that the way that you could tell whether any

15

of the account letters, the cover letters that had the

16

account information that accompanied the account balance

17

statements, were fraudulent or had been created by you

18

or on your behalf, was if they had account balances in

19

the letter itself; is that a fair statement?

20

A

That's one of the ways.

21

Q

What was the other way?

22

A

We discussed the other day -- I don't know

23

which day it was.

24

you look at the e-mail traffic surrounding the

25

particular letter, you can see the ones that Deb created

We discussed the other day that if

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for me because you'll see an e-mail from me to Deb

2

generally giving her the contents.

3

creating the whole scan font thing with it, and then her

4

sending it back to me, and then me forwarding it out to

5

whoever I needed to send it to.

6

ways.

7

Q

8

Then you'll see Deb

That's one of the other

Did you ever fraudulently create a so-called

lock letter?

9

A

I may have, sure.

Yeah.

Mr. Spinosa was -- As

10

a matter of fact, I do recall an instance, and if you

11

depose Ms. Villages she'll attest to this, I do recall

12

an instance when I was on the speakerphone with

13

Mr. Spinosa and I needed a lock letter.

14

available and he told me to just sign his name.
Q

15

He was not

Now, would it be a fair statement that since

16

you weren't present at the time when any of the real

17

account balances were printed up in connection with

18

these shows, you had no idea as you sit here today who

19

actually went into the TD Bank computer and printed them

20

up?

21

A

I have no idea who went in there.

22

Q

Prior to the shows, Uncle Bill's job was to get

23

there before you did with an envelope with the fake

24

account balance and ensure that the fake account balance

25

was switched out with the real account balance

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underneath the cover letter, correct?

2

A

He was the deliveryman, yes.

3

Q

Now, I believe you've already testified that as

4

part of this process that the bank representative,

5

whether it be Ms. Caretsky or Ms. Kerstetter, I believe

6

you've indicated that both of them were involved, they

7

would print up a letter, the standard account balance

8

letter, sign it indicating the existence of the account,

9

and initially underneath that place in the envelope the

10

real account balance statement, correct?

11

A

No, sir.

12

Q

They would not print up the real account

13

balance?

14

A

15

There was a lot to that question.

Part of what

you said was inaccurate.

16

Q

What part of what I asked you was inaccurate?

17

A

My understanding is that they printed up the

18

original letter.

19

asked them to keep as a form.

20

the balance statements, the real ones.

21

them.

22

Bill arrived with the fake bank statements.

23
24
25

Q

It was a form that we created that we
That they would print up
They would keep

But nothing would be put in the TD envelope until

Do you recall last week giving testimony

inconsistent with that?
A

If you show me my testimony maybe it will

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refresh my recollection.
Q

Let me ask you this question and see if this

3

refreshes your recollection.

Do you recall in an answer

4

to one of Mr. Scherer's questions or it could have been

5

Mr. Lichtman's questions that the TD Bank

6

representative, whether it be Ms. Caretsky or somebody

7

else as part of this show process, when they printed up

8

the real account balance statements that go along with

9

the cover letter they would put both of them inside an

10

envelope?

11

A

I never testified to that.

12

Q

That did not occur?

13

A

I never testified to that.

I never said they

14

put the fake bank statements in and the real bank

15

statements in the same envelope.

16
17
18
19

No, sir.

(Whereupon, Caretsky's Exhibit No. 214 was
marked for identification.)
BY MR. CRAIG:
Q

Let me show you what's been marked as

20

Defendant's Exhibit 214 for identification.

21

record, this is an e-mail I guess starting on

22

September 15, 2009, at 9:02 a.m.

23

marked as Exhibit 21 to Caretsky's deposition on

24

January 14, 2011.

25

For the

It's previously been

Could you take a look at this e-mail and tell

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me whether you recognize it.

2

A

I do.

3

Q

And how do you recognize it?

4

A

I remember receiving it and responding.

5

Q

The initial e-mail as part of this chain you

6

received was from Mr. Szafranski?

7

A

Yes.

8

Q

Also known as Mikey?

9

A

Yes.

10

Q

And what did this have to do with?

11

A

Ira wanted to go to TD Bank, and I was telling

12

him if Mike has explained the process, because Ira was

13

very lovingly -- he was a motor-mouth and I did not want

14

him to engage Rosanne in significant conversation in the

15

middle of the bank.

16

difficult position, nor did I want her to realize that

17

Mr. Sochet was an investor and not a client.

18

Q

I did not want to put her in a

That was the reason for you indicating in the

19

e-mail -- or Mike indicating in the e-mail to me

20

Mr. Sochet, "Okay.

21

process.

22

A

No, no.

23

Q

I stand corrected.

24

A

-- to Mike, not Mr. Sochet.

25

Q

The top one is from you to Mike.

No problem.

Have you explained the

No freaking Rosanne out.

Love ya."

That's me --

And you are

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indicating that you don't want to freak Rosanne out?

2

A

Yes.

3

Q

That seems a little nonsensical in view of the

4

fact that at that point in time, September 2009,

5

according to you, Rosanne had been on board and been a

6

player for about a year.

7

by anything?

8
9

A

No, no.

Why would she be freaked out

You don't understand.

Rosanne

believed that the phony bank statements that she was

10

providing to the people I walked into the bank with was

11

solely for the

12

that there was more money in the bank than there was so

13

that I could get future business from them.

14

purpose of me convincing these people

She did not know what was going on as far as

15

the investment scam and the like.

16

significant concern that Mr. Sochet, who I lovingly

17

referred to as a motor-mouth might engage her in all

18

kinds of conversation other than what we were

19

specifically going to the bank for.

20

him in.

21

MR. CRAIG:

And I had a

So I had Mike reel

Mr. Scherer, this is an e-mail that

22

I know has a Bates stamp.

23

with a Bates stamp.

24

marked as an exhibit to the deposition.

25

produced as part of the Szafranski Onyx Capital

I could not find a copy

I know it's previously been
And it was

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production without a Bates number.

2

MR. SCHERER:

3

MR. CRAIG:

4

9

I have lots of copies.

It's

(Whereupon, Caretsky's Exhibit No. 215 was
marked for identification.)

7
8

Yes.

being marked as Exhibit 215.

5
6

Do you have a copy?

THE WITNESS:

Thank you.

BY MR. CRAIG:
Q

Could you take a look at that, please,

10

Mr. Rothstein, and tell us whether you can identify it

11

or recognize it.

12

A

I've never seen this before.

13

Q

Do you doubt its authenticity?

14

A

I don't doubt it one way or the other.

15

I've

never seen it before.

16

Q

Could you read it out loud, please?

17

A

From Michael Szafranski, sent Thursday,

18

September 17, 2009, at 9:35 a.m., to Mel E. Lifshitz.

19

Subject:

20

Second 10.
"Apparently I am verifying the other 10mm

21

today.

22

docs.

23

regarding your request.

24

constant activity at the bank, a constant letters are

25

being viewed by the bank with some suspicion, so we are

I have instructed them to have the correct
I am going to the bank today and spoke to Scott
He is a bit concerned about his

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figuring out a way to get it done.

2

President, Onyx Capital Management", with his address.

Michael Szafranski,

3

Q

4

the time?

5

A

I don't understand your question.

6

Q

Okay.

7

that.

That was a bad question.

I'll give you

Is the verbiage that you just read into the

8
9

Is that consistent with what was going on at

record consistent with the concerns that you had about

10

the bank being suspicious of your activities on or about

11

September 17th of 2009?

12

A

No, sir.

13

Q

Did you ever have any concern in September of

14

2009 or any other time that the bank was becoming

15

suspicious of your activities?

16
17

A

20
21

That was a sham we set up to get

people to stop asking for bank visits.

18
19

No, sir.

(Whereupon, Caretsky's Exhibit No. 216 was
marked for identification.)
BY MR. CRAIG:
Q

Showing you what I'm going to mark as

22

Defendant's Exhibit Composite 216 for identification

23

consisting of two pages, Bates Trustees/Spinosa 00422

24

and 423.

25

Mr. Lifshitz dated September 17, 2009.

It's an e-mail exchange between you and

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1
2

A

Give me one second to read it.

3

I do recognize this and recall except for this

4

Grubman, Rita thing across the top.

5

that is.

6

Q

Ignoring the Grubman, Rita up top --

7

A

Yes.

8

Q

-- do you otherwise recognize this e-mail

9

exchange?

I don't know who

10

A

I do.

11

Q

I guess the one at the bottom preceded the one

12

at the top.

13

at the bottom of that page?

14

A

Could you read your e-mail to Mr. Lifshitz

"Looks like I pulled it off.

Spinosa will do

15

the letter.

16

and answer his questions.

17

Rosanne to see if she would do it.

18

later today if she is comfortable with it after I just

19

came in and got statements, but I think she will."

20

Meeting with him in the morning to discuss

Next paragraph.

Also call the bank manager,
She will let me know

"Please wire the 3m in the

21

morning so I can get the rest of the first 10

22

distributed tomorrow.

23

late Monday.

24

Monday...

25

good.

I don't need the second 10m until

So we have tomorrow and most of the day

So long as it hits by 5 p.m. I should be

If you need until Tuesday I can pull it off if

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you can get me half, 5m Monday afternoon, so I can

2

spread some bucks around to the masses.

3

posted.

4

Q

Love ya.

Call me when you can.

Keep me
Scottito."

Mr. Lifshitz responds, "Awesome, buddy.

5

Thanks.

Really appreciate it.

6

back home, but with people.

Just landed and headed

Will call you later."

7

A

Yes.

8

Q

The second line of your e-mail to Mr. Lifshitz

9

after indicating that it looks like you pulled it off.

10

Spinosa will do the letter.

11

bank manager, Rosanne, to see if she will do it.

12

will let me know later today if she's comfortable with

13

it after I just came in and got statements, but I think

14

she will.

17

She

What are you referring to her, you thinking

15
16

You indicate, Also called

that she will do?
A

I have no idea.

I'd need to see the e-mail

18

traffic before this and after it.

19

her to see if she would do something, that's a lie.

20
21

Q

You never talked to her on the phone in

connection --

22

A

23

no, sir.

24

Q

25

But as far as calling

About something connected to Mel E. Lifshitz,

Okay.

Let me see if I can help you out in that

regard.

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A

2
3
4
5

Thank you.
(Whereupon, Caretsky's Exhibit No. 217 was

marked for identification.)
BY MR. CRAIG:
Q

Showing you what's been marked Defendant's

6

Exhibit 217 for identification.

It's a two-page e-mail

7

that's been previously marked as Exhibit 22 to

8

Caretsky's January 14, 2011 deposition marked as an

9

exhibit by the Plaintiffs.

Back page is a September 17,

10

2009 account letter which includes a $60 million

11

balance.

12

yourself and I believe Debra Villegas and also from

13

Mr. Spinosa to you.

And there is an e-mail exchange between

Do you recognize these documents?

14
15

A

I do.

16

Q

What are they?

17

A

The back letter is a fraudulent letter that we

18

created in my office.

19

e-mail sequence that we created to add authenticity to

20

the fraudulent letter.

21

Q

The top section is a fraudulent

Does that help refresh your recollection as to

22

what you were referring to in Exhibit 216 regarding

23

calling Rosanne to see if she would do it?

24

A

It does.

25

Q

That is, create a false account letter with a

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balance?

2

A

No, no.

3

Q

How is that wrong?

4

A

Because Rosanne was not involved in creating

5
6
7

That's wrong.

any false account letters that contained balances.
Q

Then I asked you a bad question or that was not

the intent of my question.

8

A

Okay.

9

Q

I don't doubt that for a second.

10

A

Go ahead.

11

Q

The reference you have to see if Rosanne would

That's what the question was.

It's getting late.

Go ahead.

12

do it, that refers to providing a letter referencing an

13

account.

14

A

Fair enough?
Yes.

What was occurring was, this is more of

15

our sham trying to get investors to stop having us make

16

so many bank visits.

17

would do it, that whole kind of thing is all a lie, to

18

stop Mel and others from regularly asking us to do bank

19

visits.

20

The whole Rosanne, to see if she

I then tell Mel, looks like we pulled it off.

21

And this is what we pulled off.

22

nothing to do with this particular letter.

23
24
25

Q

But Ms. Caretsky had

And the letter you're referring to is the

second page of Exhibit 217?
A

That's correct.

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1

Which is the account letter that contains a 60

2

million dollar balance, which was created by you or on

3

your behalf in your office?

4

A

That's correct.

5

Q

That would have been created by Mr. Corte or

6

Mr. Renie?

7

A

8

No, that would have been created by

Ms. Villegas.
Q

9

Based upon a computer program set up by either

10

Mr. Corte or Mr. Renie or could she have done that

11

without their help?

12

A

13

help.

14

Q

By the way, who are Mr. Corte and Mr. Renie?

15

A

Mr. Renie was the director of information

She probably could have done it without their
I have no recollection one way or the other.

16

technology at the law firm; and Mr. Corte was the

17

assistant director.
Q

18

Was he already an employee for some time before

19

he got involved in creating the false TD website and

20

false documents?

21
22
23
24
25

A

They had been employed for some time before,

yes.
Q

And were you the one that initially approached

them about becoming involved in your illegal activity?
A

Yes.

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Q

Tell me about Mr. Corte?

Did you hire him

2

specifically to come in and assist Mr. Renie in creating

3

a false TD Website?

4

A

No, they weren't hired specifically for the TD

5

thing.

6

information technology work for us.

7

him both to us at separate points in time.

8
9

They were actually hired to really do
Somebody referred

Mr. Corte's main role in the Ponzi scheme was
to create the more sophisticated, like the web page, the

10

fake TD web page.

11

website, that kind of stuff was done by Mr. Renie.

12

although their duties interchanged, there was a

13

particular piece of software we needed to use to create

14

the fake website and Mr. Corte was far better versed at

15

using that software than Mr. Renie was.

16
17

Q

The updates and the like to the
So

How long did you know Mr. Caputi before he

became involved in your illegal activity?

18

A

15, 20 years.

19

Q

You were business partners with him?

20

A

That was during and after the illegal activity.

21

Q

I believe during the first day of your

22

testimony you referenced either also being involved with

23

check kiting or money laundering with him in the past;

24

is that correct?

25

A

Yes, um-hmm.

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2
3

Q

Was he indebted to you at the time that he

became involved in your Ponzi scheme?
A

I don't know if he was indebted to me.

I don't

4

think I made Steve feel like he was indebted to me for

5

anything.

6

relationship.

7
8

Q

We always had a mutually beneficial

Would that be in the legal context or the

illegal context or both?

9

A

Both, both.

10

Q

Was he intimidated by you?

11

A

No.

12

Q

Why did you need him involved?

13

A

Say it again.

14

Q

Why did you need to involve Mr. Caputi in your

15
16

Ponzi scheme?
A

I needed people to play certain roles and I

17

went to the people that I know were willing to do just

18

about anything for money.

19

Q

Well, what specifically was his role?

20

A

Pretend to be a banker, pretend to be a

21

Plaintiff.

22

Q

Let's talk about --

23

A

That's in the direct Ponzi, not the tentacles,

24
25

not the check kiting and not the thing with Silverseas.
Q

Let's talk about the pretend to be a banker

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part; why did you need Mr. Caputi to pretend to be a

2

banker?

3

A

Certain investors wanted to meet a banker at TD

4

Bank , to be able to speak directly with the banker.

5

Caputi was the person I solicited to do that.

6
7

Q

And this was after Ms. Caretsky was already on

board and a player, in your mind?

8

A

I'd be guessing as to the time frame.

9

Q

Well, if that was so, you still wanted to hire

10
11

Mr. Caputi even she was on board at the time?
A

I had -- I only involved Ms. Caretsky to the

12

extent of taking the fake bank statements, putting them

13

with her real letter, and handing it to me or my

14

investor.

15

Q

16
17

That is the full extent of her involvement.
How did that differ from Mr. Caputi's

involvement?
A

Mr. Caputi answered extensive questions

18

regarding banking from investors, completely different,

19

completely different level.

20

Q

Are you aware that's diametrically opposed to

21

his deposition testimony in this case and his sworn

22

testimony in the trial in the Coquina case?

23

A

Are you asking me if that would surprise me?

24

Q

No, I'm asking you are you aware of it?

25

A

I'm not aware of it and it wouldn't surprise

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2

me.
Q

Do you have a specific recollection as you sit

3

here today of any of those bank visits involving

4

Mr. Caputi?

5

A

Sorry, say the question again.

6

Q

Do you have an independent recollection as you

7

sit here today of any of those bank visits involving

8

Mr. Caputi?

9

A

I recall sitting with Mr. Caputi in the Weston

10

branch and discussing accounts with him, but I can't

11

picture who's asking the questions.

12

Q

Okay.

13

A

But I remember him answering questions about

14
15

our account balances.
Q

Do you remember you telling him, Steve, this is

16

what I want you to do, I want you to go home and put a

17

suit on and I want you to meet me at the TD Bank at a

18

certain time, I want you to go inside, there will be an

19

individual, Uncle Bill, who's going to hand you an

20

envelope and a business card.

21

in the conference room.

22

investor and I'm going to ask questions and all I want

23

you to do is follow my lead.

24
25

I want you to go sit down

I'm going to come in with an

Do you recall that happening; you giving him
those instructions?

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A

It sounds incomplete to me.

2

Q

What part of it is incomplete?

3

A

Because I had him actually verify bank balances

4

during the meeting that I can recall speaking to him.

5

And I also recall - and I may have been -- Well, I don't

6

know if it was Jack Simony or not, whoever the investor

7

was that was in the bank with us, they specifically

8

talked to him.

9

And I specifically recall at some point in time

10

the conversation to me appearing to go too long.

11

said, okay, we got to go, as it was putting Caputi in a

12

difficult spot.

13

participation that I had him do when he did the whole

14

Plaintiffs, playing the Plaintiff, but it was more than

15

simply handing an envelope.

16

Q

I

It wasn't near the level of

According to you, when Ms. Caretsky was, who

17

you I believe described as an integral part - piece to

18

the survival of your Ponzi scheme, she didn't just hand

19

an envelope, as you allege, she handed an envelope that

20

contained a fake account balance that she put in there;

21

correct?

22

A

Correct.

23

Q

If she was willing to do that, it doesn't make

24

sense why she wasn't willing to sit in the conference

25

room and tell an investor that there was 60 million

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dollars in an account that didn't exist.

2

nonsensical; doesn't it?

3

A

No, not at all.

That seems

You don't understand the

4

dynamics involved in a fraud of this magnitude.

5

you involve people -- if you look at everyone I

6

involved, okay, there are a tremendous number of people

7

who were involved in tiny little pieces that were

8

integral to the Ponzi survival, but it was still just a

9

tiny little piece, something that they had to do,

When

10

whether it be changing the stock ticker symbol on the TD

11

website, changing one number in a balance, forging a

12

signature, some people simply created plaintiffs' and

13

defendants' names.

14

involved here.

15

not nonsensical at all.

16

All kinds of different players

The answer to your question is, no, it's

You only involve people to a limited extent as

17

you require of that particular purpose, at least that

18

was my rule of thumb.

19

Q

20

strike it.

21

A

Can we take five minutes?

22

Q

Sure.
(Thereupon, a short break was taken.)

23
24
25

Your answer is non responsive and I'm moving to

BY MR. CRAIG:
Q

Back on the record.

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I want to clarify a couple of matters that you

1
2

testified about earlier during my examination.

3

asked you during the shows when the envelope was

4

handed -- strike that.

I just

Who did Ms. Caretsky or Ms. Kerstetter or

5
6

Mr. Mejia or Mr. Garces hand the envelope to during the

7

show; you or your client/investor?

8

A

Either one.

9

Q

You specifically recall as you sit here today

10

the envelope being handed to directly to the

11

client/investor on one or more occasions?

12

A

13

the other.

14

Q

15

I don't have a specific recollection one way or

So, as you sit here today, you don't ever

recall it being handed to the investor/client?

16

A

17

the other.

18

Q

19
20
21

It was either me or them.

I don't have a specific recollection one way or

Wouldn't your answer to that question more

appropriately be, I don't remember or I don't know?
A
don't.

I don't have a specific recollection.

I

That's -- I don't have a specific recollection.

22

Q

Okay.

23

A

It's not that I don't know, I knew at some

24
25

point in time, I just don't recall at this moment.
Q

Didn't you initially answer either/or?

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MR. SCHERER:
A

Objection, form.

To me either/or, it had to have gotten into one

3

of our hands somehow.

4

It either went directly from Ms. Caretsky or whoever was

5

giving it to the investor or to me.

6

I have a specific recollection of it.

7

if I know for certain.

8

handed it to.

9

Q

Ultimately the investor got it.

You're asking me if

I don't know which one they

I just don't remember.

Did you just tell us that you paid Caputi to

10

pose as a TD Bank representative?

11

last question, right before the break.

12

A

You're asking me

That I paid him?

Not in answer to my

I'm not sure -- in my mind I

13

always paid Caputi because I was always giving him

14

money.

15

matter of fact, I think there may be checks to him right

16

around the time that he was doing this.

17

take a look at the bank records to see.

18

Q

Yes, he was paid to do whatever it was -- as a

You have to

Are you aware of the fact that he testified in

19

deposition in this case and in the trial in the Coquina

20

case that you in fact did not pay him --

21

A

Well --

22

Q

-- to pose as a TD Bank representative and a

23

Plaintiff in your Ponzi scheme?

24

A

That he just did it because he loved me?

25

Q

No.

As I recall he said when he questioned you

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about it you responded by saying, just shut up and do

2

it.

3

A

First of all, Steve --

4

Q

Does that sound familiar?

5

A

No. Steve wouldn't have taken that answer from

6

me.

7

but not Steve.

8

enough to understand how that dialogue would have

9

occurred.

Other people may have taken that answer from me,

10

You apparently don't know Steve well

Mr. Caputi and I had a very long-standing

11

business relationship.

12

whether it was legal or illegal, I took care of it.

13

I needed something from him legal or illegal, he would

14

take care of it.

15
16
17

Q

If he needed something from me,
If

No more complicated than that.

I think I'm about finished.

one or two more questions.

I do have at least

This is my last question.

After having a total of no more than an hour,

18

hour and a half total contact - face-to-face contact

19

with my client Ms. Caretsky, over the course of two

20

years, you would have a jury believe and perhaps others

21

believe that Rosanne would sacrifice her job, her career

22

her family, her newly adopted daughter, her freedom, her

23

life for a couple of lunches, a $2,500 campaign

24

contribution - or excuse me, contribution to Special

25

Olympics, a baby gift that you never gave her, and

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$25,000 in cash she never asked for; assuming that ever

2

happened; is that what you want a jury to believe?

3
4

MR. SCHERER:
A

Yes.

Object to form.

And I don't believe that she ever

5

perceived that type of risk from this.

6

was doing what she believed she had to do at that point

7

in time based upon my relationship with TD Bank.

8
9

MR. CRAIG:

I have nothing further

at this time.

10
11

Thank you.

I believe she

FURTHER DIRECT EXAMINATION
BY MR. GELBER:

12

Q

I'm Dan Gelber, Mr. Rothstein.

13

A

All right, sir.

14

MR. GELBER:

How are you?

Mr. Nurik, these are the

15

exhibits.

16

don't have a separate -- I'm going to give him his

17

own, but they are also in there.

18
19

I'm going to give him parts of these.

I

BY MR. GELBER:
Q

Mr. Rothstein, my understanding is that you've

20

worked with the Trustee as part of your cooperation; is

21

that right?

22

A

I was ordered to talk to him.

I don't know if

23

you consider -- my understanding of Rule 35 is that the

24

civil stuff doesn't come in, so --

25

Q

I don't mean cooperation.

You've been little C

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cooperating, you've been helping him make a case;

2

correct?

3

A

Yes.

4

Q

How many times have you met with him and how

5
6
7

many hours?
A

Chuck would be the little C.

It's been a lot?

I met with them over three days, it was really

more like two and a half days.

8

Q

When was that?

9

A

In August.

10

Q

Now, in their complaint, on Paragraph 36 of the

11

Trustee's Complaint it says:

TD Bank then generated a

12

screen shot of RRA's account balance in a specific

13

account, prepared a cover letter verifying and enclosing

14

the account balance, deposited the cover letter and the

15

screen shot into an envelope which was furnished to

16

Rothstein in the presence of one or more investors.
That's not accurate, is it?

17
18

A

Not accurate.

19

Q

That's an absolute falsehood that's in their

20
21
22
23

complaint, right?
A

Well, it's not absolutely false.

It's just

missing pieces.
Q

A critical piece of your Ponzi scheme and your

24

fraud was getting my client Ms. Caretsky, according to

25

you, to take these invoices that you created at

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Rothstein headquarters and -- not invoices, these

2

accounts statements, and put them in a letter, a real

3

letter at the bank.

That was a critical piece, right?

4

A

Yes.

5

Q

And they got that critical piece absolutely

6

wrong in the Trustee's complaint, correct?

7

A

It's not perfectly correct, no, sir.

8

Q

Well, perfectly correct might be a spelling

9

error or a grammar error.

They have TD Bank creating

10

the false account statements and you created the false

11

account statements; is that correct?

12

A

That's correct.

13

Q

That's not a little error.

14

That's a major

error, correct?

15

A

16

occurred.

17

don't know -- I can't explain it any further than that

18

because I wasn't part of drafting that complaint.

19
20
21
22

That is a significant misstatement as to what
It doesn't contain the critical part.

(Whereupon, Caretsky's Exhibit No. 218 was
marked for identification.)
BY MR. GELBER:
Q

Let's go to what these investor meetings or

23

what you and other people have called the shows.

24

first I'm going to ask you to look at 218.

25

I

MR. GELBER:

And at

And you all have that package

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there.

2

meeting.

3
4

218 is going to be the October 29th

BY MR. GELBER:
Q

Okay.

This is the meeting, and it's already

5

been presented to you, on October 29th.

This was the

6

letter.

7

the first investor meeting you had at TD Bank, right?

And it's been said that this might have been

8

A

That's -- we're guessing.

9

Q

Yeah.

And if you look at the second page,

10

Jennifer Kerstetter says to Brock and copies it to

11

Rosanne, Here is a rundown of the accounts and available

12

balances, right?

13

A

Yes.

14

Q

And then attached are the actual balances that

15

are put together with the amounts on them?

16

A

17

balances.

18

blank, and then the next ones are the fake statements.

19

Q

The first page looks like the actual account
The subsequent page -- Well, one is almost

Right.

First of all, at this point Jennifer

20

Kerstetter is asking them to put actual balances

21

together because someone attaches the actual, not the

22

fake balances, right?

23
24
25

A

I don't know what she's asking.

I wasn't

there.
Q

Well, the words are here:

Here's a rundown of

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the accounts and available balances.

2

are the available balances.

3

those balances, is there?

4

A

And attached to it

There's nothing fake about

I don't know what the balances were, but they

5

seem to be correct.

6

to her, so I don't know what anyone was asking for or

7

whether she just provided them.

8

the other.

9

Q

What I don't have is Bill's e-mail

I don't know one way or

First of all, if Jennifer Kerstetter was

10

involved, why would she send them an e-mail with the

11

actual account balances?

12

provide fake balances later that day or Rosanne was

13

going to be presenting fake balances, why would she send

14

them the actual balances?

15

A

If she knew she was going to

Do you want me to go ahead and speculate

16

because that's the only way I can answer that?

17

asking me why, what she's thinking.

18

Q

This was your Ponzi scheme.

You're

This was one of

19

your operators.

20

telling Rosanne to prepare account statements with

21

actual real balances rather than fake ones?

22

A

23

else.

24

opinion, I will.

25

Q

Tell me why Jennifer Kerstetter is

I don't know what anyone is saying to anyone
I'm asking, if you want me to give you my
But --

Let me ask you this way:

Do you think that

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putting the actual balances in the letter, in that

2

e-mail, is consistent with actually doing it the right

3

way and not the way that you might have wanted them to

4

do it?

5

A

No.

It's actually consistent with the way I

6

was under the impression they were doing it the whole

7

time, which was they were always printing the actual

8

account balances for their own internal plausible

9

deniability.

The second thing is, as I've testified

10

over and over again, I don't know specifically what date

11

Ms. Kerstetter became involved.

12

Q

So, her putting the actual balances in an

13

e-mail could either be evidence of innocent conduct or

14

evidence of criminal participation depending when she

15

was involved?

16
17

A

don't know.

18
19
20
21

I can't answer that one way or the other.

I

I'd be guessing.

(Whereupon, Caretsky's Exhibit No. 219 was
marked for identification.)
BY MR. GELBER:
Q

On December 10th, this is the second one and

22

it's marked 219, on this one you have Bill Brock on the

23

second page asking Rosanne Caretsky to print up account

24

numbers and she lists the account numbers.

25

says:

I'm not going to be in the office.

And then she
What accounts

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do you want printed out.
That actually came before it.

2

And then

3

actually early on on the third page it's Bill Brock

4

saying:

5

on a separate page.

I need those DOS reports again.

6

A

Yes.

7

Q

Do you remember all this?

8
9
10

Each account

Does this all look

familiar to you?
A

No.

But this sounds familiar to -- it looks

like what we did on an as needed basis.

11

Q

Now, it makes no sense --

12

A

But I have seen this e-mail string before.

13

Q

Makes no sense for Bill Brock to tell Rosanne

14

Caretsky they're going to need those DOS reports again

15

on a separate page and use of your conference room if he

16

knows she's not going to use the DOS reports she prints

17

up, right?

18

A

No.

19

Q

Tell me why it makes perfect sense.

20

to know.

21

A

It makes perfect sense to me.
I do want

Because we were in the habit of whenever we

22

sent out e-mails, all of us, to make sure that every

23

e-mail comported with what would be, especially with the

24

bank, comported with what we were attempting to appear

25

to be doing.

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Q

2

says:

3

e-mail is full of these participants looking like

4

they're doing something totally innocent.

5

you said the scheme was intending to do?

6

So, what your testimony is, on the next page it
What accounts do you want printed out?

A

The

Is that what

I'd be guessing as to what all these people

7

were trying to do.

8

what I understand occurred or at least know occurred at

9

the bank.

I can only testify factually from

10

Q

I understand.

11

A

I didn't instruct these people to just write

12

e-mails like this.

13

occasion tell certain people, Be careful what you put in

14

e-mails.

15

Q

And it's your guess that --

16

A

I can't imagine -- Just let me finish.

Okay?

But I did on more than one

I can't

17

imagine how Bill would get any of this from these people

18

without asking for these statements.

19

he would write unless he was going to write something

20

about a crime about to be committed.

21

Q

I don't know what

It's interesting, in this actual e-mail he

22

could have just listed the ones he wanted if he just

23

wanted to look like he was covering up or creating a

24

false trail, but he actually said, I need them each on a

25

separate page.

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So, is it your testimony that Bill is trying to

1
2

look like he's asking for something honest even though

3

something dishonest is going on?

4

A

It's my testimony that he's trying to provide

5

backup documentation to what we ultimately are going to

6

provide to an investor, which is statements on separate

7

pages.

8
9
10
11

Q

We want everything to match.
But you would agree with me that at no point

were any of those actual account statements going to be
put in with the letter in the envelope, right?
A

No.

It's my understanding that they took those

12

and placed them along with a copy of the letter in some

13

folder some place.

14

Q

We'll get to that in a second.

But the Ponzi

15

scheme you were running, you had absolutely no use for

16

accurate real account statements?

17

A

Unless we were looking for what the real

18

balances were, and that makes no sense because I could

19

have pulled them up on the screens.

20

Q

You could have pulled them up at Rothstein

21

headquarters and you could print up the ones you wanted

22

at Rothstein headquarters.

23

for Rosanne Caretsky or Kerstetter or anyone else over

24

at TD Bank to print up an actual balance at any time,

25

you never needed it?

You had absolutely no need

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A

What you're saying begs the question because

2

they would also know that I could get these balances in

3

my office.

4

If they don't know what's going on, why not simply send

5

me back an e-mail saying, Why don't you just print the

6

screen shots up.

7

Q

So why bother providing this to me at all.

Well, we'll talk about that in a moment.

But

8

the truth of the matter is, in every one of these -- in

9

fact, let's go to the December 17 one.

10

MR. GELBER:

11

MR. RABIN:

12

THE WITNESS:

What is the number on it?
220.
Just also in the context of the

13

e-mail, you know, I don't recall -- I know that I

14

saw it after the Ponzi scheme exploded.

15

saw Bill calling this "the show" repeatedly, I

16

probably would have told him, Let's stop calling it

17

that because that doesn't match the whole -- Let's

18

try to keep the e-mail -- you know, we don't know

19

who's reading e-mails at a bank.

20

the e-mail businesslike.

21
22
23

But if I

Let's try to keep

(Whereupon, Caretsky's Exhibit No. 220 was
marked for identification.)
BY MR. GELBER:

24

Q

25

meeting.

220, which is the December 17 investor
In fact, there's a string of e-mails before it

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where they're not just talking to Rosanne, I think

2

they're talking to folks at the bank, Jamie Bond, Jose

3

Garces, other people who aren't part, according to your

4

previous testimony, of your conspiracy, right?

5

A

Correct.

6

Q

And, in fact, some of those people actually

7

used in the investor meetings, right?

8

A

I don't know what you mean, "used."

9

Q

Well, they actually were people who had letters

10

created that they wrote that you put account statements

11

in.

12
13
14
15
16

There were other people other than -A

I never put account statements in any of these

that I recall.
Q

People who worked for you did that were part of

this conspiracy, right?
A

I can't tell you for certain, because I was not

17

there, who actually placed the document in with the

18

letter.

19

Q

I wasn't there.
But you agree with me it was important that

20

whoever that person was, according to you, that they

21

were prepared to go along with the conspiracy, whatever

22

part of it they knew?

23

A

All they had to do was ultimately place the

24

fake bank statement in the envelope and hand it to me or

25

allow someone else possession of the envelope, allow

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them to place the fake bank statements in and then take

2

it from that person and still hand it to me.

3

matter which way you slice it, they were doing something

4

they should not have been doing.

5
6

Q

So, no

Matthew Brennan, later in '09 -- you said you

didn't know who that person was.

7

A

As I sit here today I can't remember who he is.

8

Q

He's actually one of the people that handed

9

you, or was in the vicinity, handed you an account

10

statement that was fabricated by your office.

11

no idea who he is?

You have

12

A

I don't know what you mean, "in the vicinity."

13

Q

Well, during his deposition Matthew Brennan

14

said he actually was part of one of these investor

15

meetings.

16

statement in a letter and handed it to you to an

17

investor -- handed it to you or handed it to an

18

investor.

19

A

20

Mr. Brock came to him, and he put an account

Mr. Brennan said he put the statements in

there?

21

Q

Mr. Brennan.

22

A

I didn't know he was involved.

23

Q

Mr. Garces did the same thing, didn't he?

24

A

You're telling me that they placed the fake

25

bank statements in there?

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Q

What I'm telling you is that you relied on a

2

lot of people to commit this fraud, but apparently you

3

relied on some people who weren't in, as they say, the

4

circle of trust.

5

you've said.

6

were receiving some of these account statements and they

7

were the ones that were providing them to you and

8

investors.

9

A

People who had nothing to do with what

They didn't receive bribes.

They actually

If they were putting the fake bank statements

10

in there, then they were involved at some level without

11

my knowledge.

12

Q

Is that possible?

Are you saying that

13

Mr. Brock and others were involving people other than

14

Ms. Caretsky and Ms. Kerstetter without you knowing it?

15

A

To my knowledge, no.

But in viewing e-mails

16

all this time between people that I didn't see prior to

17

the explosion of the Ponzi scheme, there apparently were

18

many things going on I didn't know about.

19

I've never heard that Mr. Brock involved

20

someone else.

21

that these people actually put the fake bank statements

22

in there --

23

Q

Is it possible?

If you're telling me

Actually, what I'm telling you is that they

24

were -- I don't think that any of the TD Bank officers

25

put fake bank statements.

What I think happened is I

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think your guy did a substitution and that's why --

2

A

In their presence?

3

Q

Without them knowing it.

4
5
6

Because by the way, a

couple of these people -A

Think about that.

Does that really make sense

to you?

7

Q

Let me ask you a question.

Let me ask you

8

this:

9

they actually weren't part of your conspiracy, yet you

A couple of the people who you're talking about,

10

actually received things from them.

11

involved?

12

were going to put false statements with their own

13

letters?

Nobody paid them.

How did they get

They just decided they

Jennifer Kerstetter didn't get a single dime

14
15

from you, according to your own testimony, not a single

16

dime.

17

UNKNOWN SPEAKER:

18

THE WITNESS:

Objection to form.

This is what you're missing.

I

19

don't believe that Ms. Kerstetter or Ms. Caretsky

20

had any clue as to the significance of what they

21

were doing.

22

they were, yes, committing a fraud, that they

23

simply believed that they were assisting a valuable

24

TD Bank customer.

25

I believe that despite the fact that

That's my belief.

These other people, this is the first time I'm

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hearing about them giving me envelopes that they

2

may have put fake bank statements in.

3
4

BY MR. GELBER:
Q

In that e-mail series, in a couple of the

5

e-mail series you see Mr. Brock and Ms. Caretsky and

6

Ms. Kerstetter actually saying, Mr. Rothstein is

7

coming.

8

of that is consistent with giving you an actual real

9

bonafide account statement.

Here are the account statements you need.

10

UNKNOWN SPEAKER:

11

THE WITNESS:

All

Objection to form.

Except for the fact that what

12

banker in their right mind, if they're not actually

13

involved in a fraud, is going to allow a letter, an

14

original letter from TD Bank with bank statements,

15

out of their control to the point where someone

16

you're saying could actually walk away, put

17

something unbeknownst to them in it, then stroll

18

back and they're going to take that sealed envelope

19

and pass it off to me?

20

participant in a fraud.

21

it, there's a problem.

22
23

That sounds like a
So either way you slice

BY MR. GELBER:
Q

They have to know that, though.

Is it your

24

assumption that you're a customer of a bank, they give

25

you an envelope with a letter in it, that their customer

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is going to go a switch?

At the time they didn't assume

2

that you were running a Ponzi scheme.

3

were a credible customer.

4

UNKNOWN SPEAKER:

5

THE WITNESS:

They thought you

Object to the form.

I don't want to argue with you

6

about it.

7

understand of any circumstance -- and I wasn't

8

there.

9

they had to substitute in the statements or they

10

allowed someone to substitute in the statements.

11

I'm just telling you that I don't

One of two things had to happen.

Both are problematic.

12

Ponzi scheme.

13

fraud.

14

BY MR. GELBER:

15

Q

Either

Both facilitated the

Both allowed me to carry out the

There are videos of Mr. Brock actually leaving

16

with a letter and doing a switch elsewhere or throwing

17

away the actual account statements that was put in there

18

and then coming back.

19

UNKNOWN SPEAKER:

20

MR. SCHERER:

21
22

Objection.

Object to the form.

BY MR. GELBER:
Q

Why isn't it just as easy an alternative that

23

Mr. Brock during the course of these meetings with the

24

TD Bank folks when he left the room just simply did the

25

switch himself?

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UNKNOWN SPEAKER:

2

THE WITNESS:

Objection, form.

I don't know any banker in their

3

right mind who's not involved in a fraud that would

4

allow a customer to walk out with bank statements

5

so that they could switch something and then bring

6

it back, I suppose sealed, and then hand it back to

7

the person and that person is just going to hand it

8

to them?

9

aided my fraud.

10

If they don't know, either way to me it
I wasn't there.

My understanding was that on the bulk of

11

occasions they, meaning Ms. Caretsky at the very

12

least, substituted in my fraudulent bank statements

13

for the originals.

14

BY MR. GELBER:

15

Q

Now, you --

16

A

But I was not there.

17

Q

You understand some of those e-mail circuits,

18

they're talking to other folks other than Ms. Caretsky

19

and Ms. Kerstetter, who have, from your testimony,

20

absolutely nothing to do with your fraud.

21

understand that they're involved in the e-mail chain,

22

they're involved in the investor shows.

23

evidence from anyone that they've been criminally

24

involved in this.

25

must have happened through other people's actions on

Do you

There's no

And your testimony is that it just

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your behalf?

2

MR. SCHERER:

Objection, form.

3

THE WITNESS:

I'm guessing, but it would have

4

to be someone asking for their assistance, yes.

5

Because it just seems to me to violate every level

6

of smart banking protocol to allow someone to walk

7

away with a balance letter and then bring it back

8

all sealed up and say, Here, hand this off, will

9

you?

That just makes no sense to me one way or the

10

other.

11

BY MR. GELBER:

12

Q

Earlier --

13

A

That's like allowing me behind the teller booth

14
15
16

and allow me to give people balances.
Q

I understand your point.

The point is, at that

point you were a trusted customer of the bank, correct?

17

A

18

the bank.

19

a gazillion red flags going off and I shouldn't have

20

been a trusted anything.

21

Q

I was attempting to be a trusted customer of
I've since learned that apparently there were

At that point you were trying and pretending to

22

be a trusted customer of the bank; can you not answer

23

that yes or no?

24

A

I can.

25

Q

In the community you were a very important

The answer is yes.

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member of the community, correct?

2
3

A

Some people thought I was, and I understand now

other people thought I was up to something.
Q

4

Why would they constantly, according to your

5

testimony, Ms. Caretsky was printing up actual bank

6

statements even though she knew you were substituting

7

out fake ones?

8
9

A

I can only tell you what I was told.

know for certain.
Q

10

Well, I want to go over the explanations that

11

you told us.

12

some questions.

13

It's December 13th in the morning.

14

30.

On December 13th Mr. Scherer asked you
I'm going to show you the transcript.

15

A

Thank you.

16

Q

The question was:

17

I don't

I think it's Page

"Do you have information that every time you

18

would ask for a balance, that Ms. Caretsky or

19

Ms. Kerstetter would actually have the -- what was

20

in the account printed up for them so that there

21

would be a record in the computer at TD Bank of

22

them asking for a --"

23

"Yes"

24

"-- balance statement?"

25

Answer:

"Yes.

I didn't mean to cut you off."

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Question:

2

Answer:

"Yes."
Yes, yes."

Ms. Caretsky actually told

3

me that they needed to do that."

4

A

That's correct.

5

Q

So it's your testimony that Ms. Caretsky told

6

you that the way she was going to create a sort of proof

7

of innocence in this would be by printing up an actual

8

bank statement so that the computer had a record of

9

somewhere that screen shot being printed?

10

A

No.

11

Q

Well, when you said printed up for them so that

12

there would be a record in the computer at TD Bank, what

13

does "there would be a record in the computer at TD

14

Bank" mean?

15

A

It was a very simple conversation.

I said, You

16

know, we don't need the original bank statements because

17

Bill kept bringing them back to the office.

18

don't need these.

19

up for our own records.

20

Q

I said, I

She said, Well, we have to print them
End of conversation.

I understand that was a second time.

That was

21

story number two later in the week.

I'm asking you

22

about this one.

23

beginning of last week was, "so that there would be a

24

record in the computer at TD Bank."

25

those words or didn't she?

The words out of your mouth at the

Did she tell you

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MR. SCHERER:

Object to form.

2

THE WITNESS:

What Ms. Caretsky told me is what

3

my answer is, not what Mr. Scherer was feeding me.

4

Ms. Caretsky actually told me that they needed to

5

do that.

6

That's as much as she told me.

BY MR. GELBER:
Q

7

So, when Mr. Scherer fed you this question, you

8

didn't say, That's not what she said.

9

yes.

You said, "Yes,

Ms. Caretsky actually told me that they needed to

10

do that."

11

A

Well, Mr. Scherer's questions are a lot like

12

some of my answers.

13

have balance information that every time you would ask

14

for a balance that Ms. Caretsky or Ms. Kerstetter would

15

actually have the - what was in the account printed up

16

for them so there would be a record in the computer?

Some of them are very long.

Do you

17

That was my understanding of it.

18

figure out why anyone else would be printing it up.

19

she did tell me that we have to do it anyway for our

20

records.

21
22
23

I couldn't
But

End of conversation.
There wasn't anything further.

There wasn't a

detailed explanation of it.
Q

So, on December 13th when you said yes, as to

24

the question, She was doing it so there would be a

25

record in the computer at TD Bank?

You didn't mean that

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there would be a record in the computer.

2

they were actually printing up hard copies?

3

accurate, is what you're telling me?

4

A

You meant that
This is not

I can't tell you whether it's specifically

5

accurate or not.

6

you're telling me right now that if you have to print up

7

something off your computer, that we have to do it

8

anyway, I would surmise that it's for a record in the

9

computer.

10

The record in the computer -- if

So, yes, what he asked me is accurate.

Okay?

11

But what you're trying to do is twist my words up.

12

You're talking about very lengthy conversations.

13

trying to play a little impeachment game by trying to

14

twist my words up.

15

what she said to me.

16

Q

You're

The point is that she said to me

Listen, I understand you're accusing me of

17

twisting your words, but they happen to be your words.

18

And the term record in the computer means a footprint in

19

the computer.
Is it your testimony here today right now, not

20
21

last week, that when Ms. Caretsky came to you and

22

said -- that Ms. Caretsky did not say to you that she

23

needed to print them up to keep a record in the

24

computer?

25

A

Ms. Caretsky said to me, We need to print them

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up anyway.

2

needed a record of it.

3

that.

4

Q

5

incorrect?

6

A

You have to show me the testimony.

7

Q

You have it right in front of you.

8

A

The piece I'm looking at right now, Page 30?

9

Q

Look, I don't know why this is so problematic.

10
11
12
13

I surmised that that meant because they

Okay.

I surmised that, she did not say

So, what you said last week was

You answered a question, "Ms. Caretsky said that -MR. LICHTMAN:

Objection, the witness is trying

to confirm what document.
THE WITNESS:

Let me do it this way:

On Page

14

30 you handed me, I stand by my answer as it reads

15

from the beginning of the question highlighted to

16

the end of the highlight.

I stand by my answer.

17

MR. SCHERER:

Was that an exhibit?

18

THE WITNESS:

It doesn't have an exhibit number

19

on it, Mr. Scherer.

20

MR. SCHERER:

21

MR. GELBER:

22

proceeding.

Mark that, please.
Oh, it's a transcript of this

All right.

That's fair.

23

What's the next number?

24

MR. RABIN:

25

(Whereupon, Caretsky Exhibit No. 221 was marked

221.

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for identification.)

2

(A discussion was had off the record.)

3

MR. GELBER: That is 222.

4

(Whereupon, Caretsky Exhibit No. 222 was marked

5
6
7

Mark this.

for identification.)
BY MR. GELBER:
Q

On December 16th in the morning you addressed

8

this same issue again.

9

recollection we never faked a cover letter.

10

And you said, "To my
We didn't

need to."
Question:

11

"Yeah.

And is it -- it's your

12

understanding that every time they gave you a fake cover

13

letter they asked the banks - they made a printed screen

14

shot from the bank of the actual balance to go along

15

with the cover letter?"

16

Answer:

17

Question:

18

"Yes, sir."
"So they would have some

deniability?"
Answer:

19

"Yes.

At one point in time I asked

20

Ms. Caretsky, I said, You know, I don't need these.

21

Just stick it in a file.

22

that they were printed out at the time that I wrote this

23

letter so we have a complete record."
Is that actually what you're saying happened?

24
25

She said, No, I need to show

A

To my way of thinking, this is completely

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consistent with the other record you just showed me.

2

It's a completely consistent answer.

3

Q

But this has a printed document, and earlier in

4

the week it was keeping a blueprint in the computer like

5

in the cache or something like that.

6
7
8
9

A

In my mind both answers are completely

consistent.
Q

Let me ask you, What is the reason -- I mean,

are you saying that from your understanding Ms. Caretsky

10

was actually bringing actual account balances, real

11

ones, to the investor meetings that you had set up with

12

your investors?

13

the meetings?

She's actually bringing real ones to

14

A

No.

15

Q

Well, at the actual investor shows that you had

16

been talking about, when she gave you that envelope with

17

the letter on top of it, you know that she was printing

18

up actual account statements at the same time?

19

A

I learned that --

20

UNKNOWN SPEAKER:

21

THE WITNESS:

Objection to form.

-- from speaking to Bill, yes,

22

and from seeing that he kept bringing these

23

original bank statements back with him and leaving

24

them for me and Deb.

25

BY MR. GELBER:

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Q

Other than your claim that she told you this

2

was part of her coverup, it would make no sense for her

3

if she was part of your conspiracy to print up actual

4

account statements and give them to Mr. Brock while they

5

were doing these investor meetings?

6
7
8
9

A

I'm not going to guess what she thought made

sense or didn't.
Q

What possible sense could it have made to print

up the actual account statement and bring it to a

10

meeting where she's going to actually put in the

11

envelope a fake account statement.

12

UNKNOWN SPEAKER:

13

THE WITNESS:

14
15

Objection to form.

I never said she brought it to

the meeting.
BY MR. GELBER:

16

Q

You said you learned that from Mr. Brock?

17

A

My best recollection is that we kept getting

18

the documents in the office.

19

some point it time I said that to Ms. Caretsky.

20

the end of it.

21
22

Q

We didn't need them.

At

That's

It's not complicated.

When did you tell her, Please stop sending us

all these real account statements?

23

A

I didn't say it like that.

24

Q

What did you say?

25

A

I said exactly what's in the record.

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Q

And you said, Just stick them in the file?

2

A

I may have said something to that effect, yes.

3

Q

So what you're saying is that Ms. Caretsky was

4

willing to give somebody she didn't know a fraudulent

5

balance statement - she was willing to give somebody she

6

didn't know a fraudulent balance statement, and her

7

deniability would be that she had printed up the actual

8

one and given it to you?

9
10
11

A

this level.
Q

12
13

I don't think she ever thought it would get to
Again, I'm telling you --

Then why was she creating a -MR. NURIK:

Let him finish the answer.

BY MR. GELBER:

14

Q

Go ahead.

15

A

I already told you what I thought was in her

16

mind.

I don't think she or Ms. Kerstetter understood

17

the gravity what they were getting involved in.

18

think anyone thought it would get that far.

19

thought she was helping me.

20
21
22
23
24
25

MR. SCHNAPP:

I don't

I think she

I'm going to move to strike that

answer on behalf of TD Bank as not responsive.
BY MR. GELBER:
Q

You are saying -MR. LICHTMAN:

Speculation, too.

BY MR. GELBER:

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Q

-- that Ms. Caretsky didn't think this was that

2

big a deal.

3

trail to make it look like otherwise innocent conduct

4

was actually innocent?

5

A

6

thinking.

7
8

But she was creating this sort of false

You're asking me to guess what she was
I don't think.
MR. LICHTMAN:

Objection to form.

BY MR. GELBER:

9

Q

Now --

10

A

She could have avoided this all in the first

11

place by simply not doing any of this, by saying, I'll

12

print up the bank statements.

13

No, Mr. Brock, you can't have these.

14

them to him.

15

that either.

16

I'll hand them to them.
I need to hand

She could have done that.

MR. SCHNAPP:

She didn't do

On behalf of TD Bank I move to

17

strike that answer also as not responsive.

18

request that the witness respond only to those

19

questions that he's asked.

20
21
22

And I

BY MR. GELBER:
Q
right?

Mr. Rothstein, you don't want to go to jail,
I mean, your don't want to stay in jail.

23

A

Excuse me.

24

Q

In fact, though, you think the judge was

25

I was sentenced to 50 years.

actually unfair to you in the sentence, don't you?

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2
3

A

I don't think that he was unfair given the

gravity of what I did, no, sir.
Q

You didn't say previously that you hope you're

4

going to get a reduction in sentence and mention that --

5

Well, let me read you what you said.
"I have to hope that Judge Cohn who has already

6
7

sentenced me to 50 years, which is 10 more than the

8

government was asking for, decides to be fair with me".
Are you not suggesting that the Judge was

9
10
11

unfair with you when you -A

No.

Again, you're trying to put words in my

12

mouth.

13

hopeful that - at the time that the government hopefully

14

asks for the actual reduction, that he is fair with me.

15

That's the best I can hope for.

16

Q

One thing does not mean the other thing.

I am

As part of that you have to - part of what

17

you're trying to do with the Court is you're trying to

18

convince Mr. LaVecchio and the Court that you have made

19

everybody whole in this; have you not?

20

A

I'm trying to convince people --

21

MR. LICHTMAN:

22

MR. GELBER:

23
24
25

Objection to the form.
Let me rephrase that.

BY MR. GELBER:
Q

You promised the Court you are going to make

all legitimate investors whole; have you not

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A

And I will.

2

Q

You've promised him that?

3

from you?

4

A

It's still a promise from me.

5

Q

And you probably spent hundreds of millions of

That's a promise

6

dollars as part of this, that's just to the wind right

7

now?

8

A

Part of this?

9

Q

In the course of your scheme you spent hundreds

10

of millions of dollars?

11

A

Sure.

12

Q

It's going to be very hard to make your

13

investors whole unless you find ways to tag a deep

14

pocket with some liability?

15

A

I believe that if I'm released where I can

16

still be productive that I have the capacity to generate

17

significant amounts of money legally and pay these

18

people back.

19

Q

And you're hoping - my understanding is you're

20

hoping that in fact a Court is going to look at this and

21

give you a substantial sentence reduction, whatever

22

cooperation you give.

23

A

Look at what?

24

Q

Look at all your cooperation and give you a

25

I don't understand.

substantial sentence reduction?

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A

I'm hopeful that Judge Cohn treats me fairly.

2

If that means a substantial sentence reduction -- who

3

sentenced to 50 years wouldn't want a substantial

4

reduction?

5

Q

6

You're expecting, absent that reduction, to

probably die in jail?

7

A

Yes.

8

Q

Now, you understand your cooperation with the

9
10

government that you're not going to get credit for
exonerating people, you know that, right?

11

A

That's not true.

12

Q

So, in other words, if your cooperating does

13

not lead to the investigation or prosecution of

14

somebody, you would get credit for the people that you

15

exonerated?

16

A

It's my understanding that my providing of

17

truthful testimony to them, both inculpatory and

18

exculpatory, aids me in my substantial assistance

19

because by exonerating certain people, it allows them to

20

focus their investigative energies in the proper

21

direction.

22

Q

So, you think if you just exonerated people you

23

would get a reduction in sentence or isn't it really the

24

investigation of people with criminal liability that

25

gets you the reduction?

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A

I don't think I understand your question.

2

Q

When you stand up in Court at some point,

3

you're hoping Mr. LaVecchio stands up and says he's

4

really helped us and he's made a lot of cases for us.

5

You're hoping that he says that?

6

A

I'm hoping that he outlines all my cooperation.

7

Q

You're hoping that Mr. Scherer, the Trustee

8

stand up and say the same things, although he was a

9

horrible guy when he did this, he's really been a

10

stand-up guy now and we got all the money back?

11
12

A

I

don't know how the actual Rule 35 process works.
Q

13
14

I don't know what they are permitted to do.

You've given a lot of thought to this; haven't

you?

15

A

To my Rule 35?

16

Q

You've given a tremendous amount of thought to

17
18

how you're going to get your sentence reduced?
A

My main focus right now is living a healthy

19

life, making sure family is okay, and telling the truth

20

to the government.

21
22
23

Q

I understand that, but I understand what you're

saying what.
A

That's my focus.

I'm asking you --

Actually that's not just what I'm saying.

24

That's what I'm doing.

25

thing, okay, Ms. Caretsky played a very small part in

In the scheme of this total

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this.

2

about what everybody did.

3

Okay, it's part of me telling them the truth

If I could have hid it from them, okay, and not

4

been penalized for it, if I could have said,

5

Mr. LaVecchio, please don't go after this lady, she

6

played a very small part.

7

it to him right now.

8

said, you must tell us everything you did.

9

understand I turned my uncle in?

I would say that.

I'll say

That's not my decision.

They

Do you

I've told them about

10

things that people - all kinds of people close to me

11

did.

12

I've not left anyone out.

13

Family members, very, very close friends, okay,

Q

Okay.

My question was this, you fully -- you're

14

hoping to get the sentence reduction at some point.

15

in order to do that you're going to have to -- you're

16

going to have to find a way to get TD Bank or other

17

folks to pay back all the money that you stole; right?

18

Isn't that --

19

A

No, that's not true.

And

My understanding is that

20

the civil component of it is not part and parcel of the

21

government's Rule 35.

22

prosecution of criminal investigations.

23

understanding.

24
25

Q

That it's the investigation or
That's my

You don't think -- you're not going to have

Mr. Scherer or the Trustee stand up and tell the Judge

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they he should be lenient on you because you helped them

2

get money for the innocent investors?

3
4

A

I would like them to come in and speak on my

behalf.

5

Q

Wasn't Mr. Scherer at the first sentencing?

6

A

Yes.

7

Q

When I ask you that question -- you fully

8

expect and hope that they will be there to tell the

9

Judge how terrifically helpful you were in getting back

10

money for innocent investors and that you will hope that

11

the Judge uses that to reduce your sentence?

12

A

Yes.

13

Q

So, this notion that this has nothing to do

I'm hopeful of that, sure.

14

with your sentence is preposterous, you're hoping it

15

plays a part in your sentence reduction?

16

A

That's two completely different statements.

17

You're trying to twist my words.

18

and what the Court will consider are two completely

19

different things.

20

the Court is supposed to consider pertains to the

21

criminal cases.

22

What I hope they do

It's my understanding that the stuff

Do I still hope that they come in and tell them

23

what I've done in the civil cases?

24

does with that, that's up to the Judge, not me.

25

Q

Yes.

What the Judge

Now, your testimony against my client, your

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testimony against Ms. Kerstetter, your testimony against

2

others, basically says that the e-mails to and from were

3

actually, as you've described it, they were trying to

4

pretend like they were doing something innocent but in

5

fact they were part of something that was guilty.

6

that -- am I misdescribing what you said?

7
8

A

Is

Understanding the parameters of your

questioning I would be guessing to tell you that.

9

Q

Go ahead.

10

A

That's my best guess.

11

Q

Your best guess is yes?

12

A

My best guess is yes.

13

Q

And the only thing that --

14

A

-- that they were creating their own paper

15
16

trail.
Q

But, that explanation which you gave us that

17

came from Ms. Caretsky, nobody else - you're the only

18

person that's told us that at this point?

19

A

20

spoke to.

21

Q

I have no idea.

I have no idea who else you

It's your word that says otherwise innocent

22

behavior is actually evidence of guilt because they are

23

just pretending to be innocent while they're sending

24

those e-mails.

25

It's your word that's saying that?

MR. SCHERER:

Object to the form.

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A

I think the fact that these fraudulent bank

2

statements were handed to investors by TD Bank officials

3

speaks for itself, regardless of how the statements

4

ended up getting in there.
Q

5

I understand that, but the e-mails to and from,

6

we've talked about now - other than your explanation

7

that they are really evidence of a guilty mind, they

8

look like folks are just talking to each other about

9

actual legitimate account statements they have to print

10

up.

11
12

MR. SCHERER:
A

Object to form.

No, it actually looks bizarre to me because if

13

they weren't in on it how about at least one e-mail

14

saying, what do you need this for?

15

Print it up yourself, we can't have you keep coming to

16

the bank.

17

statements with you.

What are you doing?

Or if you'd like to come, bring your own
I don't know what to tell you.

18

Q

So, that's --

19

A

You're arguing the same point with me over and

20

over.

21

Q

Your point seems to be ultimately that well,

22

it's just ridiculous for them to take care of a really

23

important customer; that is what your argument is over

24

and over again and I guess --

25

MR. SCHERER:

Object to form.

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A

No, I think ignoring bright red flags that were

2

going off for a really good customer, that's really what

3

was occurring.

4

Q

At the end of the day that conversation you had

5

with Ms. Caretsky where she says:

6

keep a record, I have to do this to keep a file -- by

7

the way, have you heard of any file anywhere with all of

8

these other account statements that were kept for just

9

this moment, I guess?

10

A

11

I have to do this to

I don't -MR. SCHERER:

Object to form.

12

A

I haven't heard either way, no, sir.

13

Q

So, nobody has produced it from anyone and they

14

didn't produce it from your office, nobody has produced

15

these legitimate account statements that were being

16

produced particularly for the purpose of showing

17

consciousness of innocence?

18
19

MR. SCHERER:
A

Object to the form.

I have seen numerous productions of the real

20

bank statements and numerous productions of the fake

21

bank statements.

22

certainly can't tell you whatever that consciousness of

23

innocence thing is.

24
25

I can't tell you who produced it.

MR. LICHTMAN:

I

I'm just pointing out per the

Court Order calls that we quit at 5:00.

The

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Marshal --

2
3

MR. GELBER:
Q

I have two more minutes.

But at the end of the day, it's going to be

4

your word about Ms. Caretsky's conversation with you;

5

isn't it?

6
7
8
9

MR. SCHERER:
Q

Objection, form.

It's your word that she told you she was

keeping this to create a record of innocence?
A

I think unfortunately for Ms. Caretsky it's

10

going to be my word, her actions, and the statements of

11

other people that interacted with her.

12
13

Q

And it's also going to be your word that you

gave her $25,000?

14

A

That's going to be my word, yes.

15

Q

There's no evidence anywhere of that?

16

A

My word.

17

Q

Okay.

18
19

And you would agree with me that, you

know, your word has extremely little value in the world?
A

I wouldn't agree with that, no.

I agree that's

20

people's perception at this time, but if you take a look

21

at my testimony, which I'm sure you are, and you take a

22

good look through all the e-mails, that you'll see a

23

massive fraud and that a substantial amount of what I'm

24

testifying to is easily corroborated by tons of written

25

documentation --

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Q

Mr. Rothstein --

2

A

-- and by people's actions.

3

Q

You called yourself a liar, a thief and a

4

scumbag?

5

A

Correct.

6

Q

And you were a liar, a thief and a scumbag?

7

A

Correct.

8

Q

And is it your testimony that you're just

9
10
11

simply no longer acting like a liar, a thief and a
scumbag now?
A

I am no longer a liar.

I will always be a

12

thief, not that I will steal anymore, but I will always

13

carry that label.

14

certainly spent, up until the point I decided to come

15

back from Morocco, a good portion of my life as what I

16

would call a scumbag, yes.

17

that I shouldn't have taken advantage of.

18
19

Q

And I spent -- let me finish.

I

I took advantage of people

We are to rely on the word of a liar, a thief,

and a scumbag that

Ms. Caretsky received $25,000?

20

A

Coupled with all the documentary evidence.

21

Q

Is there documentary evidence to that?

22

A

Not to that specific thing, but a lot of

23

documentary evidence that says that people were

24

tremendously stupid, which I don't think they were - she

25

certainly is not a stupid individual, or they were

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engaged in something they shouldn't have been engaged

2

in.

3

MR. GELBER:

4

(The proceedings were concluded at 5:00 p.m.)

I'm done.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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C E R T I F I C A T E

2
3
4

STATE OF FLORIDA

5

COUNTY OF BROWARD )

)

6
7
8

I, TERRI L. WRIGHT, Notary Public in and for

9

the State of Florida at Large, certify that I was

10

authorized to and did stenographically report the

11

foregoing proceedings and that the transcript is a true

12

and complete record of my stenographic notes.

13
14

Dated this 19TH day of December, 2011.

15
16
17
18

______________________________________
Terri L. Wright

19
20
21
22
23
24
25

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ability (3)
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able (5)
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absent (1)
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absolute (1)
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absolutely (6)
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accepting (1)
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access (15)
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36:11 62:24,24
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accompanied (2)
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accomplice (2)
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accordion (3)
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account (70)
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accounts (25)
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accurate (11)
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accusing (1)
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acknowledged (1)
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acknowledgment (1)
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act (1)
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acting (2)
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actions (3)
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actively (1)
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actual (32)
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acute (1)
61:7
adams (1)
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add (4)
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