Court filing
Jury Trial Transcript, Day 2 (October 26, 2022) — United States v. Adedayo Ilori
Summary
A jury trial transcript in United States of America v. Adedayo Ilori, 21 Cr. 746 (MKV), in the U.S. District Court for the Southern District of New York, for proceedings held in New York on October 26, 2022 beginning at 10:16 a.m. before District Judge Mary Kay Vyskocil. The opening records the case being re-called, appearances by the Government and by counsel for the defendant, and counsel raising with the court the food the defendant is given at the jail during trial. The transcript also records a stipulation about business records, read into the record with the institution and the corresponding Government Exhibit numbers, including Exhibits 201-203, 231 through 234 and 410-434. The closing pages list examinations by page and a table of Government exhibits received. The transcript is 218 pages, filed November 18, 2022 as Document 94.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
No. 1:21-cr-00746-MKV · Doc. 94 · Docket on CourtListener
Full text
Case 1:21-cr-00746-MKV
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Document 94
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
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v.
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ADEDAYO ILORI,
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Defendant.
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Filed 11/18/22
Page 1 of 218
21 Cr. 746 (MKV)
Jury Trial
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New York, N.Y.
October 26, 2022
10:16 a.m.
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Before:
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HON. MARY KAY VYSKOCIL,
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District Judge
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APPEARANCES
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DAMIAN WILLIAMS
United States Attorney for the
Southern District of New York
BY: JULIANA N. MURRAY, ESQ.
DAVID R. FELTON, ESQ.
Assistant United States Attorneys
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BRILL LEGAL GROUP, P.C.
Attorneys for Defendant
BY: PETER E. BRILL, ESQ.
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ALSO PRESENT:
ISABEL LOFTUS, Paralegal Specialist, USAO
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SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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(Trial resumed; case re-called)
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THE DEPUTY CLERK:
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THE COURT:
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Please be
seated, everyone.
Good morning to our court reporter.
Thank you for
being here.
THE REPORTER:
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THE DEPUTY CLERK:
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Good morning.
Starting with the government,
please state your name for the record.
MS. MURRAY:
Good morning, your Honor.
Juliana Murray
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and David Felton on behalf of the United States, joined by
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paralegal specialist Isabel Loftus.
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THE COURT:
All right.
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MR. BRILL:
Good morning, your Honor.
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Mr. Ilori, who is present.
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THE COURT:
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Good morning, your Honor.
Good morning, Ms. Dempsey.
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Page 2 of 218
Good morning to all of you.
Peter Brill for
Good morning, Mr. Brill, and good morning,
Mr. Ilori.
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THE DEFENDANT:
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THE COURT:
Good morning.
All right.
Mr. Brill, I understand there
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was something you wanted to raise with the Court before we have
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the jurors join us.
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MR. BRILL:
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Mr. Ilori informed me this morning that at lunch
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yesterday—-I believe meals are sent from the jail—-he was
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provided with some crackers, some peanut butter, a very small
Yes.
Thank you, your Honor.
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bag of pretzels, and that was all for lunch.
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back to the jail -- as we discussed last week, they still have
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these manpower and COVID issues where they're locked down, so
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by the time he got back, he got pretty much the exact same
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thing for dinner.
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had some food issues in the past with MDC, but I'm not sure
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that's sustainable.
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he's been told that they're locked down at least for the rest
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of the week.
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And when he got
Not sure how to address that.
THE COURT:
I know they
And Mr. Ilori informs me that that's --
Okay.
So I'm not sure what the solution
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is either.
I mean, one thought that occurs to me is, I guess
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you could perhaps bring lunch for him, but you might have to
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clear that with the Marshals.
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THE MARSHAL:
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THE COURT:
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THE MARSHAL:
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MR. BRILL:
Do we have Marshals here today?
Yes, your Honor.
Is that acceptable or do you not know?
That's fine.
And it would have to be downstairs.
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have to get it, I suppose bring it to the cell.
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never done that before either, your Honor.
I'd
Again, I've
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THE COURT:
I'm just trying to be creative here.
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MR. BRILL:
No, I get it.
What I wound up doing
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yesterday is just going over to Foley, there's some premade
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sandwiches in the case, and there's not much there either
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because they didn't have someone manning the grill, I guess
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because -SOUTHERN DISTRICT REPORTERS, P.C.
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THE COURT:
There's Civic Deli right around the
MR. BRILL:
I know one of the delis just went out of
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corner.
business.
I don't know what's still open.
THE COURT:
There is one.
Just go buy a sandwich.
MR. BRILL:
Civic Deli on Worth Street.
I mean, really.
I guess we'd have to check if they would
let me go in to the Marshals downstairs.
THE COURT:
I just asked the Marshals and they said
they didn't think it's a problem.
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MR. BRILL:
I can try.
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THE COURT:
And I will reach out to the contact that
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we have at the jail and just tell them that Mr. Ilori is on
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trial and it's just not acceptable for him not to get adequate
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food, all right?
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break today.
I will do that when we adjourn for the lunch
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MR. BRILL:
Thank you, your Honor.
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THE COURT:
Okay?
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All right.
Anything else we should
talk about?
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MS. MURRAY:
Nothing from the government, your Honor.
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MR. BRILL:
No, your Honor.
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THE COURT:
All right.
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jurors then, please.
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Ms. Dempsey will bring in our
I do intend to say to the jurors, by the way, that
this just isn't acceptable for them to be this late.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
We knew
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the one juror had a medical appointment.
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that's holding us up.
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going forward.
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It was not that juror
I hope it doesn't represent what will be
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(Jury present)
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THE COURT:
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Page 5 of 218
Jurors, you may be seated.
We're standing
out of respect for you.
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Please be seated, everyone.
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All right.
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much for being here.
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Good morning, everyone.
Thank you very
I just want to say a word or two.
I'm not going to belabor the point, but we are roughly
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20 minutes past the start time that we had talked about
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yesterday.
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of something that we talked about during selection of the jury,
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and that's why we started or slated a 10:00 start time, but by
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being late like this, you are risking whether we're going to
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finish on the timetable that I told everybody, and frankly,
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it's disrespectful to all the parties that are involved
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here—-to the Court, I have other matters that are scheduled; to
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our court reporter, who's trying to juggle multiple different
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responsibilities; and most importantly, to your fellow jurors.
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So please, I have to ask you, going forward, to try to stick to
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the timetables that we talked about, all right?
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things sometimes happen and there are unavoidable things.
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did have one person call, and so I understand sometimes things
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happen.
We knew we'd have to be a little bit late because
I understand
We
But please, I would ask for your diligence in being
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here on time.
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Document 94
All right.
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witness?
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With that, we're ready to begin the
evidence in this case.
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Page 6 of 218
Okay?
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Filed 11/18/22
MS. MURRAY:
Does the government have its first
Yes, your Honor.
The government is going
to begin by offering stipulations between the parties.
THE COURT:
Okay.
And as the jurors will recall, I
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did tell you yesterday that a stipulation is an agreement
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between both sides, both parties, as to whatever it is that's
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contained in that stipulation.
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and the parties have agreed that it is accurate and factual.
It is evidence in this case,
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MS. MURRAY:
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First, this is marked for identification as Government
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Thank you, your Honor.
Exhibit 1.
It is hereby stipulated and agreed by and between the
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United States of America, by Damian Williams, United States
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Attorney for the Southern District of New York, Juliana N.
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Murray and David R. Felton, assistant United States attorneys,
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and Adedayo Ilori, by his attorney Peter Brill, that:
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If called as a witness at trial, a representative of
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each of the following producing banks ("the banks") would
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testify that the following exhibits consist of true and
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accurate copies of records of the banks, the originals of which
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were made at or near the time by, or from information
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transmitted by, a person with knowledge, that they were kept in
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the course of a regularly conducted business activity of the
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banks, it being the regular practice of that business activity
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to make such records.
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the requirements of Federal Rules of Evidence 803(6) and
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902(11):
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Accordingly, the following exhibits meet
For bank Capital One, N.A. ("Capital One"), Government
Exhibits 101, 102, 154, and 155;
For bank JPMorgan Chase Bank, N.A. ("Chase"),
Government Exhibits 111-117, 158, 803, and 804;
For Citibank N.A. ("Citibank"), Government
Exhibit 121;
For HSBC Bank USA, N.A. ("HSBC"), Government
Exhibits 131-133;
For Manufacturers & Traders Trust Company ("M&T")
Government Exhibits 141, 156, and 157;
For Cross River Bank ("Cross River"), Government
Exhibits 150 and 151;
For Customers Bank ("Customers"), Government
Exhibits 152 and 153.
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If called as a witness at trial, representatives of
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the banks would testify that each bank—-Capital One, Chase,
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Citibank, HSBC, M&T, Cross River, and Customers—-is insured by
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the Federal Deposit Insurance Corporation ("FDIC").
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If called as a witness at trial, representatives of
the banks would testify that Government Exhibits 101, 102,
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111-117, 121, 131-133, 141, 150-158, 803, and 804 were executed
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using interstate wires that passed through the Southern
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District of New York.
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If called as a witness at trial, a representative of
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Cross River would testify that Government Exhibits 150 and 151
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consist of the approved loan, loan application, and supporting
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documents for a Paycheck Protection Program ("PPP") loan in the
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name of Twinway Air Charter and Nathanal Salnick.
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If called as a witness at trial, a representative of
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Customers would testify that Government Exhibits 152 and 153
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consist of the approved loan, loan application, and supporting
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documents for a PPP loan in the name of M2 Goldjet, LLC, and
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Christopher Potash.
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If called as a witness at trial, a representative of
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Capital One would testify that Government Exhibits 154 and 155
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consist of the approved loan, loan application, and supporting
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documents for a PPP loan in the name of BRS Consulting Corp.
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and Jonathan Herttua.
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If called as a witness at trial, a representative of
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M&T would testify that Government Exhibits 141, 156, and 157
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consist of the loan application, supporting documents, and risk
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review records for a PPP loan in the name of Appserd, Inc., and
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Jonathan Herttua.
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If called as a witness at trial, a representative of
Chase would testify that Government Exhibit 158 consists of the
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loan application and supporting documents for a PPP loan in the
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name of Appsensible, LLC, and Jonathan Herttua.
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It is further stipulated and agreed that this
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stipulation, which is marked as Government Exhibit 1, and
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Government Exhibits 101, 102, 111-117, 121, 131-133, 141,
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150-158, 803, and 804 may be received into evidence as
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Government Exhibits at trial.
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Your Honor, pursuant to the stipulation, the
government offers those exhibits as evidence.
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THE COURT:
And are you offering the stipulation as
MS. MURRAY:
Yes, your Honor, and that's Government
well?
Exhibit 1.
THE COURT:
All right.
So the stipulation itself,
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which is Government Exhibit 1, is now in evidence, meaning the
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facts that the parties stipulated to in the stipulation are
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evidence and are admitted as being true.
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the exhibits referenced in the final paragraph of the
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stipulation are received into evidence and may be considered by
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you as evidence in this case.
In addition, each of
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(Government's Exhibits 1, 101, 102, 111-117, 121,
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131-133, 141, 150-158, 803, and 804 received in evidence)
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MS. MURRAY:
Thank you, your Honor.
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THE COURT:
Are you displaying this?
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MS. MURRAY:
I don't believe we published it to the
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jury yet, just to the parties -- or the attorneys and the
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Court.
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Your Honor, we would offer another stipulation between
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the parties.
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Exhibit 2.
This is marked for identification as Government
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Government Exhibit 2 reads:
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It is hereby stipulated and agreed by and between the
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United States of America, by Damian Williams, United States
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Attorney for the Southern District of New York, Juliana N.
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Murray and David R. Felton, assistant United States attorneys,
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and Adedayo Ilori, by his attorney Peter Brill, that:
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If called as a witness at trial, a representative of
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each of the following producing institutions ("the
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institutions") would testify that the following exhibits
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consist of true and accurate copies of records of the
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institutions, the originals of which were made at or near the
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time by, or from information transmitted by, a person with
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knowledge that they were kept in the course of a regularly
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conducted business activity of the institutions, it being the
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regular practice of that business activity to make such
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records.
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requirements of Federal Rules of Evidence 803(6) and 902(11):
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And I will read the institution and then the
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Accordingly, the following exhibits meet the
corresponding Government Exhibit.
For Apple, Inc., Government Exhibits 201-203;
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For AT&T Corporation, Government Exhibits 211-213;
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For Avis Budget Group, Government Exhibits 221-228;
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For Charles Schwab & Co., Inc., Government
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Exhibits 231 through 234;
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For Charter Communications, Government Exhibit 241;
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For Coinbase, Inc., Government Exhibits 251-253;
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For Enterprise Holding, Inc., Government
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Exhibits 261-264;
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For Gemini Trust Company, LLC, Government
Exhibits 271-274;
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For ManageGo, LLC, Government Exhibits 301-328;
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For Mercedes-Benz, Government Exhibit 331;
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For MySpace NYC Real Estate, Government
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Exhibits 341-344;
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For Robinhood, Government Exhibits 351-354;
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For TD Ameritrade, Government Exhibits 361 and 362;
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For T-Mobile Inc., US, Government Exhibits 371-399;
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For Verizon Communications, Government Exhibits 401
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and 402;
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And for Google, Government Exhibits 410-434.
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It is further stipulated and agreed that this
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stipulation, which is marked as Government Exhibit 2, and
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Government Exhibits 201-203, 211-213, 221-228, 231-234, 241,
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251-253, 261-264, 271-274, 301-328, 331, 341-344, 351-354, 361,
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362, 371-399, 401, 402, and 410-434 may be received into
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evidence as Government Exhibits at trial.
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Your Honor, at this time the government offers this
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stipulation, Government Exhibit 2, and the exhibits I just
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cited.
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THE COURT:
All right.
Government Exhibit 2, which is
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the stipulation, is received in evidence, as are all of the
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exhibits listed and stipulated to therein.
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(Government's Exhibits 2, 201-203, 211-213, 221-228,
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231-234, 241, 251-253, 261-264, 271-274, 301-328, 331, 341-344,
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351-354, 361, 362, 371-399, 401, 402, and 410-434 received in
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evidence)
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MS. MURRAY:
Thank you, your Honor.
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I have one more stipulation at this time between the
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parties I would like to offer.
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Government Exhibit 3 reads:
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This is Government Exhibit 3.
It is hereby stipulated and agreed by and between the
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United States of America, by Damian Williams, United States
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Attorney for the Southern District of New York, Juliana N.
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Murray and David R. Felton, assistant United States attorneys,
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and Adedayo Ilori, by his attorney Peter Brill, that if called
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as a witness at trial, a representative of United States Small
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Business Administration ("SBA") would testify that Government
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Exhibits 160-168 consist of true and accurate copies of records
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of the SBA, the originals of which were made at or near the
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time by, or from information transmitted by, a person with
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knowledge, that they were kept in the course of a regularly
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conducted business activity of the SBA, it being the regular
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practice of that activity to make such records.
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these exhibits meet the requirements of Federal Rules of
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Evidence 803(6) and 902(1).
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Accordingly,
It is further stipulated and agreed that this
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stipulation, which is Government Exhibit 3, and Government
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Exhibits 160-168 may be received into evidence as Government
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Exhibits at trial.
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Your Honor, at this time the government offers
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Government Exhibit 3, which is the stipulation, and Government
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Exhibits 160-168.
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THE COURT:
All right.
Government Exhibit 3 is
received in evidence, as are Exhibits 160-168.
(Government's Exhibits 3, 160-168 received in
evidence)
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MS. MURRAY:
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The government at this time would call Gerald Hanson.
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THE COURT:
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Thank you, your Honor.
Good morning, Mr. Hanson.
please take the witness stand here and remain standing.
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Thank you.
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THE WITNESS:
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THE DEPUTY CLERK:
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Would you
Good morning, sir.
Good morning.
Good morning.
Please raise your
right hand.
(Witness sworn)
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THE DEPUTY CLERK:
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THE WITNESS:
Please state and spell your name
Gerald, G-E-R-A-L-D, M, Hanson.
H-A-N-S-O-N.
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THE DEPUTY CLERK:
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THE COURT:
Thank you.
All right.
Please be seated.
Sir, good morning.
You have a
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microphone there.
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into the microphone so that our jurors who are seated to your
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left can hear you.
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for the record.
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Document 94 Filed 11/18/22
Hanson - Direct
If you would, please make sure you speak
THE WITNESS:
All right.
GERALD M. HANSON,
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called as a witness by the Government,
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having been duly sworn, testified as follows:
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DIRECT EXAMINATION
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BY MR. FELTON:
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Q.
Good morning, Mr. Hanson.
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A.
Good morning.
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Q.
How old are you?
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A.
66.
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Q.
Where do you currently live?
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A.
I live in York, South Carolina.
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Q.
Who do you live with?
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A.
My wife.
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Q.
How long have you been married?
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A.
40 years, sir.
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Q.
Do you have any children?
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A.
Yes, I have two boys.
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Q.
What are their ages?
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A.
40 and 34.
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Q.
Do you have any grandchildren?
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A.
Yes, I've got three and one on the way.
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Q.
How far did you go in school?
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A.
Two years of college.
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Q.
What do you do?
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A.
Currently I am -- my only function really is I work for the
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Red Cross.
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retired.
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Q.
What sorts of things do you do for the Red Cross?
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A.
Well, I just got back from two weeks down in Florida for
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disaster response for the Hurricane Ian down there.
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sheltering, basically, for about 100-and-some-odd clients,
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giving them a place, you know, keeping them fed and giving them
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a place to sleep and stuff like that.
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Q.
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Red Cross, did you do work for anybody else?
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A.
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volunteer fireman most of my life, firefighter, EMT and
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paramedic.
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Q.
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firefighter?
I do disaster relief for the Red Cross.
I'm
I did
Before you worked for the Red Cross, or did work for the
Yeah.
Aside from my day job, working in foundries, I was a
What did you do in that capacity as a volunteer
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A.
Started off young putting out fires and going to car
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wrecks, things like that, then I became an EMT later, a
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paramedic, you know, doing medical assists and those type of
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things.
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Q.
For approximately how long did you do those things?
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A.
I started when I was like 17 years old, and pretty much
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throughout my life, whenever I moved to a new area, I'd always
8
want to hook up with a fire company.
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Q.
What did you do professionally, if anything?
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A.
My career, I worked in iron foundries my whole life.
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the last 20 years was in Riceville, PA, in an iron foundry
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there.
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six years I was what they call compliance manager,
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environmental health and safety.
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Q.
What did you do as a compliance manager?
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A.
Basically I was responsible for the health and safety of
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not quite 500 employees in three different locations, you know,
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compliance with all the OSHA regulations, trying to keep my
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guys safe, and gals, and also responsible for all the -- making
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sure we're in compliance with all the environmental
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regulations, you know, the EPA and the Department of
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Environmental Protection and all those type things.
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Q.
Mr. Hanson, what is your full name?
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A.
Gerald M. Hanson.
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Q.
And what is your date of birth?
I,
Started off in maintenance in this area, and the last
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Hanson - Direct
1
A.
XXXXXXXX X, XXXX.
2
Q.
And what is your Social Security number?
3
A.
XXX-XX-XXXX.
4
5
THE COURT:
All right.
Excuse me.
Page 17 of 218
48
Can you please
make sure that stays under seal, the Social Security number.
6
THE REPORTER:
Yes.
7
THE COURT:
Thank you.
8
MR. FELTON:
Thank you, your Honor.
9
Q.
Mr. Hanson, did there come a time where you learned that
10
you were the victim of identity theft?
11
A.
12
from Chase when my credit card accounts -- there had been some
13
unusual activity on my credit rating.
14
Q.
What did you do in response?
15
A.
Reached out to them and found out, yes, there was a lot
16
going on.
17
whole bunch of bank accounts that I had nothing to do with.
18
I researched it on the internet, found that I had to file a
19
state police report, I had to contact the FTC—-they've got a
20
site for identity theft—-and I spent countless hours on the
21
phone with all three credit bureaus, all the banks and
22
everything, trying to get it all resolved.
23
Q.
You mentioned filing complaints.
24
A.
Oh, yes.
25
State Police; and then the FTC, I think I ended up having to
Yes.
September of 2020, I got an alert for -- I believe
I contacted all three credit bureaus and found a
So
Did you in fact do that?
Yeah, there's a state police report for the PA
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO1
Document 94 Filed 11/18/22
Hanson - Direct
Page 18 of 218
49
1
file two different ones because I thought they were all done on
2
the first one and then another one popped up, so I had to file
3
another FTC complaint.
4
Q.
How did that experience affect you financially?
5
A.
Financially, it actually wasn't all that egregious.
6
know, I had to file -- send some certified mail, you know, with
7
all the -- the stuff to prove that I am who I say I am to the
8
credit bureaus and to the banks and all that kind of stuff, so
9
it really was, you know -- I couldn't afford a lawyer, so I had
10
to do it all myself.
11
Q.
How did the experience affect you mentally, if at all?
12
A.
It was trying, to say the least.
13
know -- if you've ever had to use -- go through all the
14
computerized answering things, trying to get ahold of somebody
15
at the bank that can actually talk to you, you know, you get
16
transferred from one to another and then they get hung up --
17
you get hung up on and call back and go through it all again.
18
Like I said, it was lots of hours.
19
Q.
20
of this identity theft?
21
A.
22
in the foundries, you know, it's not easy work, and our intent
23
was, when I turned 65 and I can get Medicare, I was going to go
24
and get out and we were going to move down close to my second
25
son, but trying to get credit to buy, you know, to purchase,
I, you
It was just very, you
It was very, very tiring.
What, if any, consequences did you experience as a result
Well, we had hoped, you know, after working 40-some years
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Hanson - Direct?
Page 19 of 218
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1
you know -- sell my house and purchase another house and
2
everything with all that going on with my credit rating, it was
3
going to be pretty much impossible, so basically I had to put
4
off my retirement for a year because of all of it.
5
Q.
Were you able to eventually retire?
6
A.
Yes, sir.
7
Q.
How, if at all, did the experience of being an identity
8
theft victim affect your credit rating, if at all?
9
A.
10
point.
11
recover, get it back up over 800 so I could get a really good
12
rate on mortgage.
13
Q.
You said that was after a year and a half?
14
A.
Correct.
15
Q.
During that year and a half, how, if at all, was your
16
credit rating affected?
17
A.
18
it was in the 600s, I believe, or something like that, and that
19
would have made -- made a loan very expensive if I could have
20
got one at all.
I am in South Carolina now.
Well, I don't recall exactly how low it got at any one
I know year and a half later I was actually able to
You know, I don't recall.
I know it was well under like --
21
(Continued on next page)
22
MR. FELTON:
Ms. Loftus, could you please publish
23
Government Exhibit 168, which is in evidence, and please turn
24
to page one.
25
THE COURT:
Mr. Felton, can you make the mic point
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Hanson - Direct?
Page 20 of 218
51
1
more towards your mouth and keep the end of your questions up?
2
You're dropping off at the ends.
3
Q.
Mr. Hanson, do you see the exhibit in front of you?
4
A.
Yes, sir.
5
Q.
Do you see the top --
Thank you.
6
THE COURT:
Hold on one second.
7
Is it working for each of the jurors?
8
JURORS:
9
THE COURT:
10
JURORS:
11
THE COURT:
12
JURORS:
(Nodding)
You can see it on each of your screens?
(Nodding)
Has it zoomed in for you all?
(Nodding)
13
Q.
Mr. Hanson, do you see in the top left it has the logo for
14
the Small Business Administration?
15
A.
Yes, sir.
16
Q.
And do you see in the right corner it has an EIDL
17
application number?
18
A.
Yes, sir.
19
MR. FELTON:
Ms. Loftus, can we scroll down a little
20
bit.
21
Q.
22
Twinway Air Charter Corp?
23
A.
Yes, sir.
24
Q.
Are you familiar with that company?
25
A.
Only -- I got notification from the SBA that my home
Do you see that the business' legal name is listed as
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Hanson - Direct?
Page 21 of 218
52
1
address via U.S. Mail, that there was something to do with
2
Twinway Air Charter Corp at some point.
3
Q.
4
with that company?
5
A.
No.
6
Q.
Do you see where it says gross revenues for the 12 months
7
prior to the date of the disaster?
8
A.
Yes, sir.
9
Q.
Could you read the number that follows that entry?
10
A.
$2,918,564.
11
Q.
Do you see where it says a business address?
12
A.
Yes, sir.
13
Q.
Could you read that into the -- or read that for the jury,
14
please?
15
A.
97 Oliver Avenue, Valley Stream, New York.
16
Q.
Are you familiar with that address?
17
A.
Only that it showed up at the credit bureaus as being my
18
address, and when I corrected it, you know, with like Equifax
19
and -- I corrected it, and two days later it was changed back
20
to that one again.
21
Q.
22
familiar with that address?
23
A.
Negative.
24
Q.
Have you ever been to Valley Stream, New York?
25
A.
No.
Before you received that notification, were you familiar
Prior to that notification from a credit bureau, were you
I'd never heard of Valley Stream, New York.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Hanson - Direct?
Page 22 of 218
1
Q.
Do you see there's a business email address listed?
2
A.
Yes, sir.
3
MR. FELTON:
4
you.
5
read it.
6
Q.
Are we able to highlight this?
Thank
And just make it a little bigger so I and the jurors can
You, too, sir.
7
MR. FELTON:
Thank you.
8
Q.
9
listed?
10
A.
Yes, sir.
11
Q.
Could you read that business address?
12
A.
Geraldmhanson@gmail.com.
13
Q.
Are you familiar with that email address?
14
A.
No.
15
addresses ever.
16
Q.
17
email address?
18
A.
No.
19
Q.
Thank you.
20
53
Mr. Hanson, do you see that there's a business address
I have never used my given name on any of my email
Even though that sounds like your name, that's not your
No, sir.
MR. FELTON:
Ms. Loftus, turning down to the owner
21
information at the bottom of the page, if we could please zoom
22
in on that.
23
Thank you.
24
Q.
Mr. Hanson, do you see a name under the business owner's
25
information?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Hanson - Direct?
Page 23 of 218
54
1
A.
Yes, sir.
2
Q.
Do you recognize that name?
3
A.
Oh, yes, sir.
4
Q.
A few lines down on the next page, sir, do you recognize
5
that Social Security that's listed?
6
A.
Yes, sir.
7
Q.
That's your Social Security number?
8
A.
Yes, it is.
9
Q.
Looking at the next line now, do you see a birthdate?
10
A.
Yes, sir.
11
Q.
Is that your birthdate?
12
A.
Yes, it is.
13
Q.
Turning now to the bottom third of that next page, page two
14
of the exhibit, do you see --
15
MR. FELTON:
16
banking information, please.
17
Q.
18
Citibank account?
19
A.
Yes, sir.
20
Q.
Do you recognize that banking information?
21
A.
No.
22
Q.
You've never banked at Citibank?
23
A.
No.
24
Q.
Mr. Hanson --
25
That's mine.
I've had it all my life.
And, Ms. Loftus, if you could blow in the
Thank you.
Mr. Hanson, do you see where there's a reference to a
I've never had any dealings with Citibank in my life.
MR. FELTON:
Thank you, Ms. Loftus.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Hanson - Direct?
Page 24 of 218
55
1
Q.
2
loan under the EIDL program, or EIDL program that we've been
3
using in that previous exhibit, Government Exhibit 168?
4
A.
Absolutely none.
5
Q.
Did you authorize anyone to use your identity in this way?
6
A.
Heck no.
7
What, if any, involvement did you have in applying for the
MR. FELTON:
Ms. Loftus, if we could please publish
8
Government Exhibit 121, please, which is in evidence.
9
we could just blow up the top third of the page, please,
10
including the logo up top.
11
Q.
12
document?
13
A.
Business deposit account application.
14
Q.
At what financial institution does this document appear to
15
relate to?
16
A.
Looks like Citibank.
17
Q.
What makes you say that?
18
A.
The logo in the upper right-hand corner.
19
Q.
Mr. Hanson, do you see that this same exhibit refers to
20
that same company, Twinway Air Charter Corp?
21
A.
22
And if
I'm sorry, Ms. Loftus.
Mr. Hanson, could you please read the title of this
Yes, sir.
MR. FELTON:
23
second page.
24
Q.
25
information?
Ms. Loftus, if you could now turn to the
And do you see where it has in the top-third signer
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Hanson - Direct?
Page 25 of 218
56
1
A.
(Nodding)
2
Q.
Mr. Hanson, do you see there the information listed under
3
signer one?
4
A.
Yes, sir.
5
Q.
Is that your name?
6
A.
Yes, it is.
7
Q.
Do you see where it lists a date of birth on the right
8
side?
9
A.
Yes, sir.
10
Q.
Do you see where it lists a Social Security number two
11
lines down from the date of birth?
12
A.
Yes, sir.
13
Q.
How about the telephone number one line above, is that your
14
telephone number?
15
A.
No, it is not.
16
Q.
Has that ever been your telephone number?
17
A.
No.
18
Q.
How about on the left side of that row where it says
19
business title, president; do you see that?
20
A.
Yes, sir.
21
Q.
Have you ever been the president of any entity?
22
A.
No.
23
Q.
What, if any, involvement did you have in opening the
24
Citibank bank account that we're looking at?
25
A.
That's my date of birth.
That's mine, also.
Absolutely none.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Hanson - Direct?
Page 26 of 218
57
1
Q.
Did you authorize anyone to use your identity in this way?
2
A.
No, never.
3
MR. FELTON:
Ms. Loftus, if we could now please
4
publish Government Exhibit 272, which is in evidence.
5
a Gemini Trust Company LLC record.
6
And, Ms. Loftus --
7
Q.
8
heard of Gemini Trust Company?
9
A.
Negative.
10
Q.
Do you have any cryptocurrency investments?
11
A.
No.
This is
Or before we blow anything up, Mr. Hanson, have you ever
12
MR. FELTON:
Let's zoom in to the user section about
13
midway down on the left side.
14
Q.
Do you see where it lists a legal name?
15
A.
Yes.
16
Q.
Do you see that entry?
17
A.
Yes, sir, minus the middle initial.
18
Q.
Do you see where it lists an address a few lines down?
19
A.
Yes, sir.
20
living in Wrightsville.
21
Q.
22
that?
23
A.
Yes, sir.
24
Q.
Is that, in fact, your Social Security number?
25
A.
It is.
Thank you, Ms. Loftus.
Is that your name?
That is, in fact, where I lived when I was
Do you see a Social Security number a few lines down from
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Hanson - Direct?
Page 27 of 218
58
1
Q.
How about the date of birth two lines down?
2
A.
That's also mine.
3
Q.
Mr. Hanson, did you create this Gemini account?
4
A.
No, sir.
5
Q.
Did you authorize anyone to use your identity in this way?
6
A.
Negative.
7
MR. FELTON:
Ms. Loftus, could you please publish
8
Government Exhibit 274, which is also a Gemini record which is
9
also in evidence.
10
the page for now.
11
Q.
12
associated with a Gerald Hanson account, if you look at the
13
user provided information?
14
A.
Yes, sir.
15
Q.
Mr. Hanson, do you see about halfway down --
16
Could we just zoom in on the top third of
Mr. Hanson, do you see at the top that this document is
MR. FELTON:
Ms. Loftus, if you could zoom out and
17
then zoom in just the text on the middle right and blow that
18
up.
Thank you very much.
19
Q.
Mr. Hanson, do you see where it says "user provided
20
information" at the top of this zoom in?
21
A.
Correct.
22
Q.
And do you see where it then lists the name?
23
A.
Yes, sir.
24
Q.
And do you see where it lists the date of birth?
25
A.
Yes, sir.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Hanson - Direct?
1
Q.
Is that your date of birth?
2
A.
Yes, it is.
3
Q.
And is that your name?
4
A.
Yes, sir.
Page 28 of 218
59
5
MR. FELTON:
If we can now zoom out and then zoom into
6
the top photo there.
7
Q.
Mr. Hanson, could you please read the name on this ID?
8
A.
Hanson, Gerald M.
9
Q.
Could you read the address on the ID?
10
A.
Yeah.
11
Q.
And the date of birth?
12
A.
February 1st, 1956.
13
Q.
Is that information accurate?
14
A.
It's accurate for me.
15
Q.
Did you submit this information to Gemini?
16
A.
Negative.
17
Q.
Did you authorize anyone to use your identity in this way?
18
A.
No.
19
Q.
Did you take this picture?
20
A.
No.
21
Q.
Is that your face on the ID card?
22
A.
No.
23
Q.
Is this your driver's license?
24
A.
Negative.
25
Q.
Did you authorize anyone to use your identity in this way?
410 Stone Heath, Wrightsville, Pennsylvania 17368.
Is that your name?
I don't know about that guy.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
1
A.
Document 94 Filed 11/18/22
Hanson - Cross
Page 29 of 218
60
No.
2
MR. FELTON:
And, Ms. Loftus, if we could just zoom
3
out of this, and then just directly above that, the green row,
4
if you could blow that up quickly.
5
Q.
6
"user uploaded image" in green?
7
A.
Yes, sir.
8
Q.
In light green on the bottom?
9
A.
Yes, sir.
Do you see on the bottom there, Mr. Hanson, where it says
10
MR. FELTON:
And, Ms. Loftus, could you please zoom
11
out.
12
Q.
13
were just viewing --
14
A.
Yes, sir.
15
Q.
-- did you upload that image to Gemini?
16
A.
Negative.
And then below the computer uploaded images, the images we
17
MR. FELTON:
One moment, your Honor.
18
THE COURT:
Sure.
19
MR. FELTON:
No further questions.
20
THE COURT:
Mr. Brill.
21
MR. BRILL:
Thank you, your Honor.
22
CROSS-EXAMINATION
23
MR. BRILL:
Ms. Loftus, if you could bring that
24
exhibit up again and highlight the driver's license.
25
Q.
Good morning, sir.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Hanson - Cross
1
A.
Good morning.
2
Q.
Thank you for being here.
3
Page 30 of 218
61
I'm sorry what you went through.
Mr. Hanson, do you recognize the individual who is
4
associated with your name on this driver's license?
5
A.
No, I do not.
6
Q.
Have you ever heard the name Chris or Christopher Recamier?
7
A.
I don't recall so.
8
Q.
Okay.
9
Ilori?
10
A.
It's on the email I got from DOJ saying this case --
11
Q.
Okay.
12
this case, had you ever been familiar with that name?
13
A.
Negative.
14
Q.
And in terms of both of those names I mentioned to you,
15
Christopher Recamier or Adedayo Ilori, you've never encountered
16
individuals to your knowledge that have those names, right?
17
A.
Have you ever heard the name Brian Ilori or Adedayo
But beyond the -- but before you got involved in
No.
18
MR. BRILL:
Thank you very much.
19
THE COURT:
All right.
20
Any redirect?
21
MR. FELTON:
No, your Honor.
22
THE COURT:
Okay.
23
THE WITNESS:
24
THE COURT:
25
(Witness excused)
Nothing further.
Thank you.
Thank you very much for being here.
You're welcome, your Honor.
You may step down.
Be safe and be well.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Herttua - Direct
Page 31 of 218
1
THE COURT:
Who's the government's next witness?
2
MS. MURRAY:
Yes, your Honor.
3
The government calls
Jonathan Herttua.
4
THE COURT:
Someone is retrieving the witness?
5
MS. MURRAY:
Yes, your Honor.
6
THE COURT:
Okay.
7
Good morning, sir.
9
THE WITNESS:
10
THE COURT:
witness stand.
12
13
You're all looking and the stand is
empty.
8
11
62
Good morning.
If you would please come stand here in the
Thank you.
Thank you, Ms. Dempsey.
JONATHAN HERTTUA,
14
called as a witness by the Government,
15
having been duly sworn, testified as follows:
16
DIRECT EXAMINATION
17
BY MS. MURRAY:
18
Q.
Good morning, Mr. Herttua.
19
A.
Good morning.
20
Q.
Could you please tell us your date of birth.
21
A.
Yes.
22
MS. MURRAY:
And I ask the court reporter to place
23
this next question and answer under seal.
24
Q.
What is your Social Security number?
25
A.
XXX-XX-XXXX.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Herttua - Direct
1
Q.
Mr. Herttua, how old are you?
2
A.
Sixty-five.
3
Q.
Where do you currently live?
4
A.
In Stuart, FL.
5
Q.
With whom do you live?
6
A.
My wife.
7
Q.
Do you have any children?
8
A.
I do.
9
Q.
How many?
10
A.
Two.
11
Q.
What are their ages?
12
A.
Thirty-five and 38.
13
Q.
And do you have any grandchildren?
14
A.
I do.
15
Q.
How many?
16
A.
Four.
17
Q.
What are their ages?
18
A.
One, three, four, and six.
19
Q.
Mr. Herttua, how far did you go in school?
20
A.
I graduated college.
21
Q.
Do you work for a living?
22
A.
I do.
23
Q.
What do you do for work?
24
A.
I am in technology sales.
25
Q.
Do you work for a particular company?
Page 32 of 218
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
63
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Herttua - Direct
Page 33 of 218
64
1
A.
I do.
2
Q.
What company is that?
3
A.
Iconectiv.
4
Q.
How long have you worked in technology sales?
5
A.
For my entire career, over 40 years.
6
Q.
What is the title of your company?
7
A.
Senior director.
8
Q.
Now, Mr. Herttua, you mentioned you currently live in
9
Florida; is that correct?
10
A.
Yes.
11
Q.
How long have you lived in Florida?
12
A.
About a year and a half now.
13
Q.
Where did you live before you were in Florida?
14
A.
Mountainside, New Jersey.
15
Q.
Mr. Herttua, did there come a time where you learned you
16
were the victim of identity theft?
17
A.
Yes.
18
Q.
Approximately when was that?
19
A.
October of '21.
20
Q.
And how did you learn that you were the victim of identity
21
theft?
22
A.
23
said he was from the Department of Justice.
24
Q.
What reaction, if any, did you have to that phone call?
25
A.
I kind of laughed at him and hung up the phone.
I was -- I received a phone call from an individual who
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
Q.
And why is that?
2
A.
Because I'm very suspect of fraudulent calls coming in to
3
steal identity and personal information for fraudulent
4
purposes.
5
Q.
6
when you were contacted again by somebody regarding your
7
identity theft?
8
A.
Yes.
9
Q.
Can you explain to the jury what happened next?
10
A.
Yes.
11
Department of Justice who identified himself, offered a
12
government email address and phone number, explaining that he
13
understands I would be skeptical of receiving a phone call
14
unsolicited from someone claiming to be from the Department of
15
Justice.
16
Q.
17
did you do?
18
A.
19
that's kind of peculiar.
20
individual's name to see if that in case was an individual who
21
worked for the Department of Justice to see if I could find
22
him.
23
Q.
24
employee?
25
A.
Did there come a time after you hung up that phone call
I received a text message from an individual from the
And after receiving that text message, what, if anything,
I thought about it and scratched my head and said, well,
I did do a Google search on the
And were you able to find that individual as a government
Yes.
I found him as a government employee.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
Q.
Did there come a time you spoke with or talked with that
2
government employee?
3
A.
4
always warn everyone in the family not to fall victim to fraud.
5
So I called from a different phone number that I didn't --
6
because I received the first phone call on my personal cell
7
phone, so I called from -- I carry two cell phones, one for
8
work and one for personal, because our company wants to make
9
sure we have no chance of fraud to our work phone.
10
to have a personal cell phone.
Yes.
After that, I was skeptical or nervous because I
So I have
11
So I called from my work cell phone, and this
12
individual from the Department of Justice identified me when I
13
called in already.
14
confidence that I was really speaking with the Department of
15
Justice.
16
show his badge, to show that he was in the Department of
17
Justice in Washington, D.C., to calm my nerves a little bit.
18
Q.
19
if anything, did you learn about your identity having been
20
stolen?
21
A.
22
first all, he asked me -- told me he would not ask for any
23
personal information.
24
I'm not going to tell you anything."
25
believing that this was really happening to me.
So that gave me a little bit more
At which time he offered to do a Facetime with me to
And once you connected with that government employee, what,
Well, I -- he asked me if I had thought -- seen anything --
I joked.
I said "that's good, because
Because I was still not
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
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So at that point he started to explain what they had
2
done and asked me if I had any experiences that made me believe
3
I may have had something stolen from me or any event.
4
said no, I hadn't, I hadn't noticed anything.
5
And so I
And then at that point he started to explain and
6
reveal more information about what had happened, and then I had
7
an ah-hah moment.
8
when you say, gosh, how could I have not recognized that.
9
had gone to rent a car, and when I got to rent a car -- I've
10
rented cars from Avis, and I've been an Avis preferred member
11
for 40 years, because I travel all around the world on business
12
and sales.
13
If anyone's ever had an ah-hah moment, it's
I
And when I went to rent the car, showed up, they
14
declined me at the counter and said, I'm sorry, we -- you are
15
on the "do not rent" list.
16
moment with the special investigator from the Department of
17
Justice, when I said -- that's when I realized maybe someone
18
had taken a car out in my name.
19
Q.
20
experience of being declined a rental, around when did that
21
happen?
22
A.
That was June of 2022 -- or 2021.
23
Q.
And where, geographically, were you attempting to rent that
24
car?
25
A.
And that's when I had the ah-hah
And focusing on that experience in particular, the
That was in Florida.
I'm sorry.
In the Stuart area.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MAQDILO2
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1
Q.
And were you, in fact, able to rent a car on that date?
2
A.
No.
3
the phone.
4
identification.
5
rented a car at JFK, and it had never been returned.
6
68
I spent over an hour discussing with this person on
We called Avis headquarters.
I showed my
And then they explained to me that I had
And I said, that's impossible.
I was in Florida when
7
-- what's the date of it?
8
refused to take my side of the story and said, I'm sorry, we --
9
the car hasn't been returned and you signed it out.
10
said, maybe someone made the mistake.
11
said, are you sure somebody didn't fat finger in the computer
12
and type in the information?
13
I went back and forth, and they
And I
Pardon the expression, I
And they said no.
And I went back and forth.
You need to call the fraud
14
department.
15
hours on the phone with Avis trying to resolve it, and then I
16
gave up.
17
left it and tried to rent a car somewhere else.
18
Q.
19
2021, correct?
20
A.
Correct.
21
Q.
And the agent from the government advised you that your
22
identity had been stolen months later in October 2021; is that
23
right?
24
A.
25
So I left after an hour, hour and a half.
I spent
And I just -- this is crazy, and that was just -- I
And Mr. Herttua, you said that was in or around June of
That's correct.
MS. MURRAY:
Ms. Loftus, can you please publish what's
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
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69
1
in evidence as Government Exhibit 223, and zoom in on the top
2
portion.
3
Q.
4
evidence.
5
A.
Oh, there it is.
6
Q.
Can you see this document, Mr. Herttua?
7
A.
Yes, I can.
8
Q.
Now, looking at the top of the page, do you see a customer
9
name that's listed?
10
A.
Yes.
11
Q.
Do you recognize that name?
12
A.
That is my name.
13
Q.
And in looking at the line below that, there's a slightly
14
anonymized driver's license number, but looking at the first
15
four letters, can you read the state and the -- the country and
16
the state that that signifies for that driver's license?
17
A.
Yes.
18
Q.
And there are four final digits on that license number.
19
Can you read that, please?
20
A.
6073.
21
Q.
Do you recognize those last four digits of a driver's
22
license?
23
A.
I do not.
24
Q.
And then looking down two lines below, Mr. Herttua, there's
25
a method of payment listed with a visa and last four digits.
Mr. Herttua, this is an Avis business record that's in
U.S., New Jersey.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
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70
Can you read those, please?
2
A.
9815.
3
Q.
Do you recognize those last four digits as belonging to any
4
bank or credit cards that you've ever used?
5
A.
6
of auto-fill on all your online purchases for all your credit
7
cards, and it's not one of my credit cards that I recognize.
8
No.
I typically recognize all my last four digits because
MS. MURRAY:
Ms. Loftus, can you please zoom out and
9
then zoom in on the bottom portion of the document.
10
Q.
11
right, do you see what appears to be some type of a signature,
12
some type of a written indication?
13
A.
Yes, I do.
14
Q.
Do you recognize that signature?
15
A.
I do not.
16
Q.
Is that your signature?
17
A.
That's definitely not my signature.
18
Mr. Herttua, on the bottom of this page on the bottom
MS. MURRAY:
And, Ms. Loftus, if you could zoom out.
19
And please zoom in on the pick-up date, time and location,
20
which is near the top.
21
Q.
22
picked up on May 20, 2021, in the location of Jamaica, New
23
York, and with a return date of May 31, 2021, at the same
24
location.
25
Mr. Herttua, this Avis record relates to a rental that was
Do you recall if you were in Jamaica, New York, in May
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MAQDILO2
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1
of 2021?
2
A.
I was definitely not in Jamaica, New York, in May of 2021.
3
Q.
Where were you at that time?
4
A.
I was in Stuart, Florida.
5
MS. MURRAY:
Ms. Loftus, could you please take that
6
down and publish Government Exhibit 224, which is in evidence.
7
And if you could zoom in at the top portion, starting with
8
rental agreement through to the line.
9
Q.
10
at the top portion of this document a few lines down, do you
11
see the renter name listed?
12
A.
I do.
13
Q.
Do you recognize that name?
14
A.
That is my name.
15
Q.
And what about the date of birth listed on the line below?
16
A.
That is not my date of birth.
17
Q.
What is your date of birth?
18
A.
August 18th, 1957.
19
Q.
So this same year and the same date, but a different month;
20
is that correct?
21
A.
That's correct.
22
Q.
Now, looking at billing address here, do you recognize the
23
address that's listed?
24
A.
Yes.
25
Q.
When did you live at that address?
Mr. Herttua, this is another Avis business record.
Looking
That's my address of my residence in New Jersey.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
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72
1
A.
I lived in that house until -- I owned that house until
2
late June of 2021.
3
to move to Florida, and the house was still on -- I still owned
4
the house, but I hadn't closed on the closing.
5
Q.
6
point up until at least 2021, and you owned the house through
7
to June of 2021?
8
A.
That is correct.
9
Q.
So that was an accurate address for you for a period of
10
time?
11
A.
Yes, it was.
12
Q.
Mr. Herttua --
I had moved out in roughly January of 2021
So is it correct that you lived at that address at some
13
MS. MURRAY:
Thank you, Ms. Loftus.
You can take that
14
down.
15
Q.
16
Avis contact you?
17
A.
18
which are not identifying who they're representing.
19
get calls almost every couple weeks.
20
Q.
21
communications is?
22
A.
23
Mr. Herttua, Mr. Herttua, whatever.
24
And I ask who's calling, and they state their name and company,
25
calling on a recorded line, and we have some questions for you,
At some point after you were declined the Avis rental, did
I've been repeatedly contacted by collection agencies,
I still
Can you describe what the nature of those calls or
They typically start, you know, asking, is this
They try different ways.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
and -- about some payments due or collections or a collection
2
agency is all they'd tell me.
3
Q.
4
of whether the overdue bills or whatever they're trying to
5
collect on are debts that you yourself had created?
6
A.
7
bill or I've been a victim of an identity theft.
8
contacted creditors to try to clear this up, please call them
9
back, but the calls continue to come in to this day.
10
73
Based on those communications, do you have an understanding
I believe at -- recently I've been saying that's not my
MS. MURRAY:
I've
Ms. Loftus, can you please publish
11
Government Exhibit 231, which is in evidence, and zoom in on
12
the top portion with the address through to the date.
13
Q.
14
Looking at the top portion of this document, do you see who
15
this document is addressed to?
16
A.
Jonathan Herttua.
17
Q.
Do you recognize that name?
18
A.
That is my name.
19
Q.
Can you read the address that this document to Mr. Herttua
20
was sent to?
21
A.
64 Bleeker Street, Suite 188, New York, New York 10012.
22
Q.
Do you recognize that address?
23
A.
I do not.
24
Q.
Have you ever been to that address?
25
A.
I've never been to that address.
Mr. Herttua, this is a Charles Schwab business record.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
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1
Q.
Have you ever been associated with that address?
2
A.
I've never been associated with that address.
3
MS. MURRAY:
Ms. Loftus, if you could please take this
4
down and turn to the second page where the account profile is
5
listed and zoom in on that portion.
6
Q.
7
address listed?
8
A.
Yes.
9
Q.
What is that e-mail address?
10
A.
Herttuajonathan1957@gmail.com.
11
Q.
Do you recognize that email address?
12
A.
I do not.
13
Q.
Have you ever used that email address?
14
A.
I've never used that email address.
15
existed.
16
Q.
17
year of your birth?
18
A.
19
74
Mr. Herttua, under the account profile, do you see an email
I didn't know it
Does that email address appear to reflect your name and
Yes, it does.
MS. MURRAY:
Ms. Loftus, can you turn to page 9 now of
20
this exhibit, and focusing now on the personal information, the
21
top couple of lines all the way through to the side.
22
me, Ms. Loftus.
23
Q.
24
this page of this Schwab document?
25
A.
Excuse
Mr. Herttua, do you see the personal information listed on
Yes, I do.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MAQDILO2
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75
1
Q.
What is the name?
2
A.
Jonathan Herttua.
3
Q.
And that is your name, correct?
4
A.
That is my name.
5
Q.
There's a Social Security number listed to the right.
6
you recognize that?
7
A.
Yes.
8
Q.
And below that is a date of birth.
9
A.
That is my date of birth.
10
Q.
And this is your accurate date of birth; is that correct?
11
A.
That is correct.
12
Q.
All right.
13
the left, can you read that address?
14
A.
74 East Seventh Street, Brooklyn, New York 11218.
15
Q.
Do you recognize that address?
16
A.
I do not know that address.
17
Q.
Have you ever been associated with that address?
18
A.
I've never been associated with that address.
19
Q.
Mr. Herttua, I'd like to now play an audio recording for
20
you.
21
Do
That is my Social Security number.
Do you recognize that?
Now, looking at the home or legal address to
That is a Charles Schwab record.
MS. MURRAY:
Ms. Loftus, if you could please publish
22
Government Exhibit 233, and begin playing that exhibit for the
23
jury through 45 seconds.
24
THE COURT:
This is in evidence, right?
25
MS. MURRAY:
That's correct, your Honor.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
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Page 45 of 218
1
THE COURT:
Pursuant to the stipulation?
2
MS. MURRAY:
That's correct, your Honor.
3
THE COURT:
Thank you.
4
MS. MURRAY:
Let's take a moment to work through the
76
5
technical difficulties.
Thank you, your Honor.
6
Q.
7
account at Charles Schwab?
8
A.
I've never held a Charles Schwab account.
9
Q.
Have you ever had a Gmail address?
10
A.
I have had a Gmail account address.
11
Q.
Have you ever had a Gmail address that matches the account
12
we just looked at?
13
A.
Mr. Herttua, while we're waiting, have you ever held an
I never had a Gmail account address with my name on it.
14
MS. MURRAY:
Just a moment, your Honor.
15
THE COURT:
All right.
16
Are you having an issue with
the technology?
17
MS. MURRAY:
18
Honor, and try to work it out.
19
THE COURT:
We are, your Honor.
Okay.
We can go on, your
Why don't you go on.
I was aiming
20
to take the morning break at about 11:30.
21
with what you have, let me know.
22
then, and you can try to deal with the technology issue.
23
24
25
MS. MURRAY:
you.
So when you finish
We'll take the morning break
That would be great, your Honor.
I appreciate it.
THE COURT:
Thank you.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Thank
Case 1:21-cr-00746-MKV
MAQDILO2
1
MS. MURRAY:
Document 94 Filed 11/18/22
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Page 46 of 218
77
Ms. Loftus, can you publish Government
2
Exhibit 251, which is in evidence.
3
Q.
4
holdings?
5
A.
I've never had any cryptocurrency holdings.
6
Q.
Have you ever invested in cryptocurrency even if you didn't
7
hold it in your name?
8
A.
I've never invested any cryptocurrency.
9
Q.
This is a Coinbase record.
Mr. Herttua, have you ever had any cryptocurrency currency
10
MS. MURRAY:
11
attributes of this.
12
Q.
13
account?
14
A.
Jonathan Herttua.
15
Q.
Do you recognize that name?
16
A.
That is my name.
17
Q.
On the next line, do you see an email address?
18
A.
That is the same email address you asked me about before.
19
That is not my Gmail account.
20
MS. MURRAY:
Ms. Loftus, if you could zoom in on the
Could you please read the name associated with this
Ms. Loftus, could you zoom out, please,
21
now to scroll down a few lines and zoom in to the ID number
22
there through to the end of the address, please.
23
Q.
24
with the Jonathan Herttua on this record?
25
A.
Mr. Herttua, do you see first a date of birth associated
August 18, 1957.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
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Herttua - Direct
Page 47 of 218
1
Q.
Is that your date of birth?
2
A.
That is my date of birth.
3
Q.
And what is the address?
4
A.
23 Tanglewood Lane, Mountainside, New Jersey.
5
Q.
Is that your former address?
6
A.
That's my former address.
7
MS. MURRAY:
78
Ms. Loftus, if you could take that down
8
and publish Exhibit 253 which is in evidence, another Coinbase
9
record.
10
that's depicted in this photograph, please.
11
Q.
12
see a name on this driver's license?
13
A.
I see my name on that driver's license.
14
Q.
On the next few lines, do you see an address?
15
A.
That 23 Tanglewood Lane, Mountainside, New Jersey was my
16
address in New Jersey.
17
Q.
18
right.
19
A.
20
it says, but it's not my signature.
21
Q.
And what does it say?
22
A.
Jonathan Herttua.
23
Q.
And looking at this New Jersey driver's license that's
24
depicted in this photo, do you recognize any other identifiers
25
on this license as belonging to you?
And if you could zoom in on the driver's license
Mr. Herttua, looking at the image in front of you, do you
And there appears to be a signature just below on the
Do you recognize that signature?
I do not recognize that signature -- well, I can read what
Who does it purport to be signed by?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
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79
1
A.
Nothing on there that belongs to me.
2
Q.
And just to draw your attention to the date of birth, it's
3
the second line in red up above?
4
A.
Yes.
5
Q.
Is that your true date of birth?
6
A.
That is my true date of birth.
7
Q.
Now, looking at the photo on this driver's license, is that
8
a photograph of you?
9
A.
10
Sorry.
11
Q.
12
photo aside from any notification about your identity having
13
been stolen?
14
A.
No, I've never seen this gentleman before.
15
Q.
Do you know who this individual is?
16
A.
I've never seen him before, don't know who he is.
That is not my photograph.
I've not had a hair transplant.
Have you ever seen the individual who is reflected in this
17
MS. MURRAY:
Ms. Loftus, if you could please take that
18
down now, and if you could please publish what's in evidence as
19
Government Exhibit 262.
20
record.
21
Thank you.
22
Q.
23
can you please read the name of the renter listed for this
24
record?
25
A.
This is an Enterprise Rental Car
And if you could zoom in on the top portion, please.
Mr. Herttua, looking at the top lines here, rental summary,
Jonathan Herttua.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
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80
1
Q.
Is that your name?
2
A.
That is my name.
3
Q.
Now, the details of this particular record indicated that
4
it was rented on January 3rd, 2021, at LaGuardia Airport in New
5
York, and it was due to be returned on January 17, 2021, at
6
LaGuardia Airport.
7
Were you in New York in January of 2021?
8
A.
I was not in New York in January of 2021.
9
Q.
Did you authorize anyone to rent a car in your name in
10
January 2021 in New York?
11
A.
12
I did not authorize anyone to rent a car in my name.
MS. MURRAY:
Ms. Loftus, if you could please go to
13
page 2 of this exhibit now, and zooming in on the top right
14
portion, please, Ms. Loftus.
15
Q.
16
this Enterprise Rental agreement?
17
A.
I do.
18
Q.
Are you able to read what that signature purports to say?
19
A.
It appears to spell my last name.
20
Q.
Do you recognize that signature?
21
A.
I do not recognize that signature.
22
Q.
Is that your signature?
23
A.
That is definitely not my signature.
24
25
Mr. Herttua, do you see what appears to be a signature on
MS. MURRAY:
Ms. Loftus, if you could take that down
please and publish what is in evidence as Government Exhibit
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Herttua - Direct
Page 50 of 218
81
1
154.
And if you could please zoom in on the header through to
2
the first paragraph of that document to begin.
3
Q.
4
Paycheck Protection Program document from Capital One Bank.
5
Could you please read the first line in bold, which begins with
6
"your SBA?"
Mr. Herttua, this is a Small Business Administration
7
MS. MURRAY:
If you could zoom in.
8
A.
The DocuSign you mean?
9
Q.
No.
10
A.
That.
11
application has been approved and successfully submitted to the
12
SBA.
13
Just below.
Oh.
Your SBA loan.
MS. MURRAY:
Okay.
Your SBA PPP loan
And, Ms. Loftus, if you could please turn
14
to page 3 and zoom in on the table portion of that document,
15
please.
16
Q.
17
particular Capital One PPP loan?
18
A.
Yes.
19
Q.
What is it?
20
A.
$531,218.
21
Q.
Do you recognize the name of the borrower listed for this
22
loan two lines down?
23
A.
24
25
Mr. Herttua, do you see the listed loan amount for this
I do not.
MS. MURRAY:
6?
Ms. Loftus, can you please turn to page
And if you could zoom in on the borrower's signature
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Herttua - Direct
Page 51 of 218
82
1
portion of this document, please.
2
Q.
3
the signature page of this PPP loan document?
4
A.
Yes, I see it.
5
Q.
What is it?
6
A.
BRS Consulting Corp.
7
Q.
Do you see the name of an individual listed two lines down?
8
A.
Yes.
9
Q.
What is that name?
10
A.
That is my name.
11
Q.
There's a title below that.
12
A.
CEO.
13
Q.
Mr. Herttua, have you ever heard of a company called BRS
14
Consulting Corporation?
15
A.
I've never heard of BRS Consulting Corp.
16
Q.
Have you ever been the CEO of any company?
17
A.
I've never been the CEO of a company.
18
Q.
Now, there's a DocuSign signature, so what appears to be an
19
electronic signature above the typed name of Jonathan Herttua.
20
Do you recognize who purported to sign this document?
Mr. Herttua, do you see the borrower name that's listed on
Can you read that, please?
21
A.
Well, it's a DocuSign, so whoever's on the computer types
22
in that.
That's their signature.
23
worked.
So it's a computer designated signature.
24
Q.
And what name was typed into this particular DocuSign?
25
A.
That's my name.
And that's the way DocuSign
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
1
MS. MURRAY:
2
Q.
3
from the SBA?
4
A.
5
6
Document 94 Filed 11/18/22
Herttua - Direct
Page 52 of 218
83
Ms. Loftus, you can take that down.
Mr. Herttua, have you ever applied for any type of loan
I've never applied for an SBA loan.
MS. MURRAY:
Your Honor, I think this is a good time
to take a break.
7
THE COURT:
This is the perfect time, because our AV
8
consultant is here to help.
9
Ladies and gentlemen, please leave your notepads on
10
your seat, and please do not discuss anything relating to the
11
participants or evidence while you're on your break.
12
see you in ten minutes, all right?
13
retrieve you.
14
(Jury not present)
15
(Continued next page)
And we'll
Ms. Dempsey will come
16
17
18
19
20
21
22
THE COURT:
Mr. Herttua, you're excused, but you
23
remain under oath, so please do not discuss your testimony with
24
anyone during the break.
25
THE WITNESS:
Okay?
Thank you.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Herttua - Direct
Page 53 of 218
1
THE COURT:
Thank you.
2
All right.
Is there anything we need to discuss?
3
MS. MURRAY:
Not from the government, your Honor.
4
MR. BRILL:
No, your Honor.
5
THE COURT:
All right.
6
minutes.
84
I'll see you all in about ten
Thank you.
7
MS. MURRAY:
8
(Recess)
9
THE COURT:
Thank you.
Okay.
Before we go back to the jury,
10
Ms. Murray and Mr. Brill, I did reach out to the supervising
11
attorney at MDC and asked that --
12
When you are transported each day, a sandwich be sent
13
for the Marshals to bring for you and for you to have a proper
14
dinner when you return.
15
16
So hopefully I will hear back.
confirm receipt and that they will take care of the program.
17
MR. BRILL:
18
THE DEFENDANT:
19
THE COURT:
20
Thank you, your Honor.
Thank you.
Okay.
Anything we need to discuss before
we bring the jurors out?
21
MS. MURRAY:
No, your Honor.
22
THE COURT:
Okay.
23
24
25
I asked that they
The witness may return to the
witness stand.
And, Ms. Dempsey, once he is here, you may retrieve
our jurors, please.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Herttua - Direct
1
Thank you, sir.
2
THE DEPUTY CLERK:
3
(Continued next page)
Page 54 of 218
Rise for the jury.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
85
Case 1:21-cr-00746-MKV
MAQDILO2
Document 94 Filed 11/18/22
Herttua - Direct
1
(Jury present)
2
THE COURT:
3
(Continued on next page)
Page 55 of 218
Please be seated, ladies and gentlemen.
4
5
6
7
8
9
10
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12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
86
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Herttua - Direct
1
(In open court; jury present)
2
THE COURT:
All right.
3
MS. MURRAY:
Thank you, your Honor.
Page 56 of 218
Ms. Murray?
4
Q.
5
through some business records.
6
Schwab record.
7
A.
Yes, I do.
8
Q.
I'd like to play you another Charles Schwab record.
9
is in the form of an audio file.
Mr. Herttua, before we took the break, we were talking
10
11
One of those was a Charles
Do you recall that?
MS. MURRAY:
This
Ms. Loftus, can you please publish
Government Exhibit 231, which is in evidence.
12
Oh, sorry, Ms. Loftus.
13
(Audio played)
14
MS. MURRAY:
15
87
233, which is in evidence.
Ms. Loftus, if we can try to play that
again from the beginning.
16
(Audio played)
17
MS. MURRAY:
Ms. Loftus, we can pause that.
18
you.
19
BY MS. MURRAY:
20
Q.
21
accounts that you had there?
22
A.
23
any information or account information, ever.
24
Q.
25
at Charles Schwab?
Thank
Mr. Herttua, have you ever called Charles Schwab about any
I've never made a phone call to call Charles Schwab's for
And just to clarify, again, have you ever held any accounts
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Herttua - Direct
Page 57 of 218
88
1
A.
I've never held an account with Charles Schwab.
2
Q.
Mr. Herttua, we've talked about a couple of different
3
companies and we've looked at your name being associated with
4
records with those companies, in particular Charles Schwab and
5
Coinbase.
6
personal information in the ways that we've discussed?
7
A.
8
information for any transactions.
9
Q.
10
looked at, understanding that you have rented cars from those
11
companies before, did you ever authorize anyone to use your
12
information for the particular rentals that we looked at
13
records for?
14
A.
15
a car, for Avis or Enterprise.
16
Q.
17
result of your identity theft?
18
A.
19
all my credit cards, changing all my bank accounts, changing
20
all my passwords, trying to get Avis and Enterprise to clear my
21
record.
22
showed—-I can show credit card transactions where I live,
23
everything—-that I was in Florida at the time of both rentals,
24
and they still haven't accepted my proof that it wasn't me
25
renting the car, so I continually get calls on that.
Did you ever authorize anyone to use any of your
I've never authorized anyone to use any personal
And with respect to the Avis and Enterprise records that we
I've never authorized anyone to use my information to rent
Mr. Herttua, what consequences did you experience as a
Well, I can't tell you how many hours I've spent changing
I provided in both cases information that stated, that
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
1
Document 94 Filed 11/18/22
Herttua - Cross
Page 58 of 218
89
And my son actually gets calls as well, because he has
2
the same name as I do, but he's a junior.
3
Q.
4
communications from credit reporting agencies or creditors; is
5
that correct?
6
A.
That is correct.
7
Q.
Can you describe any personal impact that the theft of your
8
identity has had on you.
9
A.
10
that, you know, all your information has been, you know -- I --
11
if someone asked me, it's kind of like if you've ever had your
12
house burglarized or your car burglarized, that's that feeling
13
of helplessness and did I do something wrong to bring this on.
14
But it's taken a lot of time in trying to clear my -- my credit
15
rating has dropped from basically a very good credit score to
16
fair at this point, based on the credit cards that have been
17
opened up in my name.
18
MR. FELTON:
Thank you, your Honor.
20
THE COURT:
All right.
21
Mr. Brill, any cross?
22
MR. BRILL:
Briefly.
23
THE COURT:
Sure.
19
And Mr. Herttua, you said that you continue to get calls or
It's -- it's pretty stressful when you -- when you find out
I have nothing
further.
24
CROSS EXAMINATION
25
BY MR. BRILL:
Thank you.
Thank you, your Honor.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
1
Q.
Good morning, Mr. Herttua.
2
you had to go through all this.
Page 59 of 218
Thanks for being here.
90
Sorry
3
MR. BRILL:
I just wanted to pull up Exhibit 231,
4
briefly, Ms. Loftus.
5
Q.
6
said you did not do any -- you didn't set up any account with
7
Schwab, correct?
8
A.
That's correct.
9
Q.
Okay.
10
uploaded, that was for Coinbase, was that 251?
11
sorry.
Thank you.
Now with regard to the Schwab account, Mr. Herttua, you
And then I believe that the drivers license that was
Or 253?
I'm
253.
12
THE COURT:
Are you asking that it be --
13
MR. BRILL:
Yes.
14
Could we just zoom in on that a little bit,
Could we publish 253.
Thank you.
15
Ms. Loftus.
Thank you.
16
Q.
17
person, correct?
18
A.
That's correct.
19
Q.
And have you ever heard the name Chris or Christopher
20
Recamier?
21
A.
And Mr. Herttua, you indicated you did not recognize this
I have not, no.
22
MR. BRILL:
I have nothing further.
23
THE COURT:
Thank you.
24
Any redirect?
25
MS. MURRAY:
No, your Honor.
Thank you.
Thank you.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
1
THE COURT:
2
Thank you very much, sir, for being here.
3
THE WITNESS:
4
THE COURT:
5
THE WITNESS:
6
(Witness excused )
7
THE COURT:
And the government's next witness?
8
MS. MURRAY:
Yes, your Honor.
The government calls
Good morning, sir.
If you would please
9
All right.
Page 60 of 218
91
Thank you.
Thank you.
You're excused.
Thank you.
Please be well, be safe.
Thank you, everyone.
John Piarulli.
10
THE COURT:
11
come to the witness stand here and stand there while my deputy
12
administers the oath.
Thank you.
13
THE DEPUTY CLERK:
14
(Witness sworn)
15
THE DEPUTY CLERK:
16
THE WITNESS:
John Piarulli.
J-O-H-N,
P-I-A-R-U-L-L-I.
19
20
Please spell and state your name
for the record.
17
18
Raise your right hand.
THE DEPUTY CLERK:
Thank you.
Please be seated.
JOHN PIARULLI,
21
called as a witness by the Government,
22
having been duly sworn, testified as follows:
23
DIRECT EXAMINATION
24
BY MS. MURRAY:
25
Q.
Good afternoon, Mr. Piarulli.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
Page 61 of 218
1
A.
Good afternoon.
2
Q.
Where do you work?
3
A.
Avis Budget Rent-A-Car.
4
Q.
What kind of company is Avis Budget?
5
A.
They rent vehicles.
6
Q.
I'm going to refer to that company generally as Avis
7
Budget.
8
A.
Over 15 years.
9
Q.
What is your current title?
10
A.
I am the regional security manager.
11
Q.
How long have you worked in that capacity?
12
A.
Close to seven years.
13
Q.
What rental car companies does Avis Budget oversee?
14
A.
Avis, Budget, Payless, and Zipcar.
15
Q.
Mr. Piarulli, are you familiar with the recordkeeping
16
practices of Avis Budget?
17
A.
Yes.
18
Q.
Generally speaking, does Avis Budget maintain the same
19
types of records for each of the rental car companies that it
20
operates?
21
A.
Yes.
22
Q.
Can you describe, prior to your current position, what
23
other positions you've held at Avis.
24
A.
25
was a fleet distribution manager.
How long have you been with Avis Budget?
I was the airport manager, I was a station manager, and I
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
92
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
Page 62 of 218
93
1
Q.
In your current position what are your general
2
responsibilities as a regional security manager?
3
A.
4
vehicles.
5
Q.
6
experience at Avis Budget, are you familiar with the types of
7
records that Avis maintains with regards to car rentals?
8
A.
Yes.
9
Q.
Generally speaking, what documents are required from an
10
individual in order to rent a car from Avis Budget?
11
A.
License and valid credit card in matching names.
12
Q.
And can you explain what you mean by matching names,
13
please.
14
A.
The name on the credit card and the license must match.
15
Q.
Does Avis Budget maintain records of information for people
16
who rent from the company?
17
A.
Yes.
18
Q.
What kind of records does Avis Budget maintain?
19
A.
Rental agreements and vehicle history.
20
Q.
Mr. Piarulli, I'd like to turn your attention to 2021.
21
there come a time when you received a request from law
22
enforcement for records regarding certain Avis car rentals?
23
A.
Yes.
24
Q.
What, if anything, do you recall about the status of the
25
rentals for which records were requested?
Oversee security processes and asset control on our
In your capacity as a regional security manager and in your
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Did
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
Page 63 of 218
94
1
A.
They were overdue vehicles.
2
Q.
And when you say overdue, can you explain what that means.
3
A.
When a vehicle is failure to return on the date due under a
4
contract.
5
MS. MURRAY:
Ms. Loftus, can you please publish what
6
is in evidence as Government Exhibit 223.
7
Q.
8
Mr. Piarulli, do you recognize this document?
Just looking at the broader document for a moment,
9
THE COURT:
It's on your screen, sir, or it should be.
10
THE WITNESS:
It's not there yet.
11
MS. MURRAY:
Sorry.
Oh.
Ms. Loftus, can you please show
12
that to the witness and the jury as well.
13
A.
Yes.
14
THE COURT:
Do the jurors all have it now?
15
THE JURORS:
Yes.
16
THE COURT:
Okay.
Thank you.
17
Q.
Do you recognize this document?
18
A.
Yes.
19
Q.
Generally speaking, what is this?
20
A.
It's a rental agreement.
21
Q.
I'd like to review some of the information on this
22
particular rental agreement with you.
23
MS. MURRAY:
Ms. Loftus, if you could please zoom in
24
on the first couple lines on this page through to the end of
25
pickup location, and all the way to the right.
Thank you.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
Page 64 of 218
95
1
Q.
Mr. Piarulli, do you see a rental agreement number on the
2
top of this document?
3
A.
Yes.
4
Q.
Do you know how, if at all, rental agreement numbers are
5
assigned to particular Avis Budget rentals?
6
A.
They're generated in a batch form per location.
7
Q.
So does each Avis Budget rental have a rental agreement
8
number associated with it?
9
A.
Yes.
10
Q.
Looking at this particular rental agreement, can you read
11
the customer name.
12
A.
Last name is Herttua, first name Jonathan.
13
Q.
And what is the country and state of the renter's driver's
14
license as reflected on this agreement?
15
A.
United States, New Jersey, ending in 6073.
16
Q.
Looking on the right on Vehicle Description, what type of
17
car was rented under this agreement?
18
A.
Silver Toyota 4Runner.
19
Q.
And in looking again on the left side, what, if anything,
20
are you able to determine about the payment for this particular
21
rental based on this rental agreement?
22
A.
The method of payment was a Visa ending in 9815.
23
Q.
Now above that line there is a field titled Avis Worldwide
24
Disc.
25
A.
Can you describe what that reflects.
When booking, the booking chat online, which in this case
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
Page 65 of 218
96
1
is Priceline web mobile.
2
Q.
3
particular rental, when was this rental taken out from Avis
4
Budget?
5
A.
On May 20, 2021, at 8:27 p.m.
6
Q.
Do you recognize the listed pickup location?
7
A.
Yes, that's our JFK Avis location.
8
Q.
So that address in Jamaica, New York, is the Avis location
9
in JFK Airport; is that correct?
10
A.
That's correct.
11
Q.
And what is the return date that is listed on this rental
12
agreement?
13
A.
May 31, 2021, at 12 p.m.
14
Q.
For what location?
15
A.
The same location, JFK, Building 305, Federal Circle.
And looking at the pickup date and time listed for this
16
MS. MURRAY:
Thank you, Ms. Loftus.
You can zoom out.
17
And if you could please zoom in at the bottom portion
18
of this document.
19
Q.
20
of marking on the right side.
21
A.
Yes.
22
Q.
Can you describe who would sign this document on an Avis
23
Budget rental agreement.
24
A.
The customer would.
25
Q.
How is a renter's signature collected for a rental
Mr. Piarulli, there appears to be a signature or some kind
Do you see that?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
Page 66 of 218
1
agreement?
2
A.
Physically on the signature cap.
3
Q.
Physically, can you describe what kind of signature cap
4
you're referring to?
5
A.
On the screen, written.
6
Q.
So is that an electronic signature?
7
A.
Yes.
8
9
MS. MURRAY:
97
Ms. Loftus, can you please take this down
and turn to page 2 of Government Exhibit 223.
10
Zoom in on the top portion through the bullets,
11
please.
12
Q.
Mr. Piarulli, what is the heading of this document?
13
A.
Addendum to Rental Agreement.
14
Q.
So is this an addendum to the rental agreement we just
15
reviewed on page 1?
16
A.
Yes.
17
Q.
Generally speaking, what information does an addendum to a
18
rental agreement contain?
19
A.
That their license is in good standing.
20
Q.
And looking at the lead-in to the bullet points, can you
21
please read the text listed on the top of this page.
22
A.
23
driver application to Avis Rent-A-Car System, LLC, I certify
24
that:"
25
Q.
"In connection with my rental application, additional
You can pause there.
Thank you.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
1
Document 94 Filed 11/18/22
Piarulli - Direct
Page 67 of 218
98
So do you then see a number of bullet points?
2
A.
Yes.
3
Q.
And are those certifications of the renter of an Avis
4
Budget rental?
5
A.
6
Yes.
MS. MURRAY:
Ms. Loftus, I'd like to zoom in, please,
7
or highlight, please, the first certification under those
8
renter certifications.
9
Q.
Can you please read that renter certification for the jury.
10
A.
"I have a currently valid driver's license, not suspended,
11
revoked, expired, canceled, surrendered, or improperly
12
altered."
13
MS. MURRAY:
And Ms. Loftus, you can zoom out, and can
14
we please zoom in on the next paragraph of this addendum.
15
Q.
16
of the renter's agreement addendum reflect?
17
A.
18
failure to comply would falsify or would false the agreement.
19
Mr. Piarulli, generally speaking, what does this paragraph
That they understand the parameters of the addendum and
MS. MURRAY:
And Ms. Loftus, can you please highlight
20
the second sentence of this portion that begins with, "I
21
further understand," in the middle of the page, carries over to
22
the next line.
23
Q.
24
addendum to the jury.
25
A.
Mr. Piarulli, can you please read that portion of the
"I further understand and agree that if I provide false or
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
Page 68 of 218
99
1
misleading information, my use of the vehicle is prohibited and
2
unauthorized."
3
MS. MURRAY:
And Ms. Loftus, if you could zoom out,
4
please, and just zoom in on the bottom portion where there
5
appears to be renter's signature.
6
Q.
7
name --
8
A.
Yes.
9
Q.
-- on this document?
10
A.
In the same -- same manner as the rental agreement,
11
electronic signature cap.
Mr. Piarulli, do you see a signature next to the renter's
12
MS. MURRAY:
And how is that signature collected?
Ms. Loftus, you can take that down.
And
13
please publish Government Exhibit 224, which is in evidence.
14
Q.
Mr. Piarulli, do you recognize this type of document?
15
A.
Yes.
16
It's a -- also a rental agreement.
MS. MURRAY:
And if we could zoom in on the top
17
portion, starting with Rental Agreement through to the bottom
18
line, please, Ms. Loftus.
19
Q.
20
relates to the rental we were just looking at?
21
A.
Yes.
22
Q.
And generally speaking, what additional information, if
23
any, is reflected in this particular rental document?
24
A.
25
information and license plate number.
Is this a Avis Budget rental agreement document that
This would have the customer's address, also vehicle
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
1
Q.
Document 94 Filed 11/18/22
Piarulli - Direct
Page 69 of 218
100
I want to walk through just a few of these fields, please.
2
Looking at the renter's name again, can you please let
3
us know what that says.
4
A.
Last name is Herttua, first name Jonathan.
5
Q.
And looking above, there's a Vehicle Owner line.
6
the make and model of this particular rental again?
7
A.
Toyota 4Runner.
8
Q.
And there's a particular billing address listed.
9
please read that.
10
A.
23 Tanglewood Lane, Mountainside, New Jersey 07092.
11
Q.
And then Mr. Piarulli, looking a couple lines down, there's
12
a checkout STN and on the right, check-in STN.
13
information do those fields reflect?
14
A.
15
check-in location.
16
Q.
17
check-in and checkout location?
18
A.
Our JFK Avis location.
19
Q.
Now there's also a field that's listed Driver's License, or
20
DR License, on the bottom right.
21
A.
Yes.
22
Q.
What are the last four digits of this particular driver's
23
license?
24
A.
25
What is
Can you
What
That would be the checkout station, the location, and the
And for this particular rental, again, what was the
Do you see that?
6073.
MS. MURRAY:
If you could zoom out on that,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
Page 70 of 218
1
Ms. Loftus.
2
document.
3
Q.
4
reflected in this document for the rental of the Toyota
5
4Runner?
6
A.
7
and the cost of the vehicle.
8
Q.
9
this portion, there's a section that says Amount Due.
101
And please zoom in on the second section of this
Mr. Piarulli, generally speaking, what information is
The rental parameters as well as the customer information
So looking on the right side, about 2/3 of the way down
10
MS. MURRAY:
Ms. Loftus, if you could please highlight
11
that.
12
Q.
What were the total charges for this rental?
13
A.
$1,045.63.
14
Q.
And looking at this rental document, are you able to
15
determine how much was paid of that $1,045.63 at the time of
16
the rental?
17
A.
18
made.
19
Q.
So can you describe for the jury what that means.
20
A.
Well, we put a hold on the vehicle -- on the credit card
21
for a percentage of the rental.
22
of rental.
23
Q.
24
there's a field that's labeled N/C.
25
A.
There was a hold on the credit card.
There's no payment
We don't get paid at the time
We just put a small hold.
Now on the third line on the top left of this portion,
Do you see that?
Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
Page 71 of 218
102
1
Q.
What information is reflected there?
2
A.
Notes that we requested a repossession on the vehicle on
3
6/18.
4
Q.
And can you describe what you mean by repossession.
5
A.
If a vehicle is a failure to return, we take parameters to
6
get back our vehicle, and one of those is try to -- a
7
repossession company to obtain the vehicle.
8
Q.
9
determine whether the vehicle was overdue for return?
10
A.
By the notes.
11
Q.
And what does DNR at the end of that entry reflect?
12
A.
That would be "do not rent."
And so for this particular rental record, are you able to
13
MS. MURRAY:
So, thank you, Ms. Loftus.
You can take
14
that down.
15
Q.
16
line Avis Budget takes if a renter fails to return a rental as
17
scheduled.
18
A.
19
department will start looking for the vehicle, making phone
20
calls, text messages, and after seven days, email and letter of
21
demand.
22
that, we'll put it into repossession, attempt to try to get the
23
vehicle back.
24
will end up reporting the vehicle stolen.
25
Q.
Can you describe for the jury what steps and on what time
Three days after the due date, our loss prevention
We'll do that twice for two weeks, and then after
After -- if we do fail on the repossession, we
With respect to the letter of demand, what address or what
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
Page 72 of 218
103
1
form of distribution is that letter sent?
2
A.
3
on the rental agreement, we'll send a certified letter to that
4
address.
5
Q.
6
rental.
7
Avis Budget rental?
8
A.
Yes.
9
Q.
What, if anything, do you recall about the details of that
10
second rental?
11
A.
To the address that is given to us at the point of rental,
Mr. Piarulli, I'd like to focus on a second Avis Budget
Did law enforcement request information for another
It was an overdue vehicle.
12
MS. MURRAY:
Ms. Loftus, can you please publish
13
Government Exhibit 222, which is in evidence.
14
Q.
15
Budget?
16
A.
Yes, it is.
17
Q.
Is this the same type of rental agreement that we reviewed
18
in Government Exhibit 224 for the Avis 4Runner rental?
19
A.
Mr. Piarulli, is this another rental document from Avis
Yes.
20
MS. MURRAY:
If you could zoom in on the top portion,
21
Ms. Loftus, through to the bottom of Pickup Location.
22
you.
23
Q.
24
this car rented from?
25
A.
Thank
Mr. Piarulli, first, which of Avis Budget's companies was
Budget.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
Page 73 of 218
104
1
Q.
And how are you able to determine that?
2
A.
The Budget car number.
3
Q.
And what was the customer name for this particular rental?
4
A.
Last name is Brown, first name Gerald.
5
Q.
What type of car was rented under this rental agreement?
6
A.
A white Jeep Grand Cherokee.
7
Q.
What was the pickup date and time of this rental?
8
A.
Pickup, August 18, 2021, at 5:04 p.m.; due to return
9
September 3, 2021, at 12 p.m.
10
Q.
11
on this rental document?
12
A.
13
Elmhurst.
14
Q.
15
on the other rental agreement, there appears to be payment
16
information listed.
17
A.
Method of payment is Visa, ending in 8865.
18
Q.
And again, are you able to determine how or by what means
19
this rental was booked?
20
A.
21
22
And do you recognize the listed pickup and return location
Yes.
It would be our La Guardia Budget location, in East
And looking again at the top left portion here, as before
Yes.
Online, Priceline, web mobile.
MS. MURRAY:
Ms. Loftus, if you could please take that
back and look at the next portion of the agreement.
23
Or actually, excuse me, the bottom portion of this
24
agreement.
25
Q.
Mr. Piarulli, again, there's a line for a signature.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
And
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
Page 74 of 218
105
1
whose signature is that intended to collect?
2
A.
The customer.
3
Q.
Do you see any markings or any apparent signature on this
4
document?
5
A.
I do.
6
Q.
Are you able to determine what name was purportedly signed
7
there for this rental?
8
A.
No.
9
MS. MURRAY:
Ms. Loftus, if you could please turn to
10
page 2 of Government Exhibit 222.
11
Q.
12
agreement.
13
reflected in the addendum we looked at for the Avis rental
14
agreement?
15
A.
Yes, it is.
16
Q.
In particular, does this addendum for the Budget Jeep Grand
17
Cherokee rental contain the same renter's certification of
18
certain information?
19
A.
Mr. Piarulli, again, this is an addendum to a rental
Is this the same general information that was
Yes.
20
MS. MURRAY:
And Ms. Loftus, if you could zoom in on
21
the bottom portion starting with, "I understand," please.
22
Q.
Does this addendum appear to be signed, Mr. Piarulli?
23
A.
Yes.
24
Q.
Are you able to determine what the name that appears to
25
have signed it reads?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
1
A.
Yes.
2
Document 94 Filed 11/18/22
Piarulli - Direct
Page 75 of 218
106
Brown.
MS. MURRAY:
Ms. Loftus, we could take this down, and
3
if you could please publish Government Exhibit 221, which is in
4
evidence.
5
Q.
Mr. Piarulli, do you recognize this type of document?
6
A.
Rental agreement.
7
Q.
And as before, the same type of Avis Budget business record
8
that we looked at for the 4Runner?
9
A.
10
Yes.
MS. MURRAY:
Ms. Loftus, if you could zoom in on the
11
top portion starting from the top line, please, or even in
12
advance of that, please.
13
Q.
Looking at the top right in the bold, what does this read?
14
A.
"Vehicle overdue for return."
15
Q.
And if we could look at the renter name again on the
16
bottom -- or excuse me -- in the middle left portion here, what
17
is the name of this renter?
18
A.
Last name is Brown, first name Gerald.
19
Q.
What is the listed date of birth?
20
A.
28 of January '53.
21
Q.
And the listed billing address, please.
22
A.
4 Locust Hollow, Carlisle, PA 17015.
23
Q.
And looking down to the right, again, a DR license or
24
driver's license field, can you let us know, please, what state
25
was this driver's license purportedly from and what were the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
1
last four digits?
2
A.
Document 94 Filed 11/18/22
Piarulli - Direct
Page 76 of 218
Thank you, Ms. Loftus.
You can take that
107
New York, 7072.
3
MS. MURRAY:
4
down.
And please publish Government Exhibit 227, which is in
5
evidence.
6
Q.
Mr. Piarulli, do you recognize this document?
7
A.
Yes.
8
Q.
What is it?
9
A.
It's our letter of demand.
10
MS. MURRAY:
Ms. Loftus, if you could zoom in on the
11
top portion starting with the date this letter was sent through
12
to the Due to Return line.
13
Q.
14
to the rental we were just discussing, the rental of the white
15
Jeep Grand Cherokee?
16
A.
Yes.
17
Q.
What date was this letter sent?
18
A.
September 10, 2021.
19
Q.
And looking at the last line on this portion of the letter,
20
what date was this rental due to be returned?
21
A.
September 3, 2021.
22
Q.
So this letter was sent approximately one week after the
23
rental was due; is that right?
24
A.
Correct.
25
Q.
And as you stated before, to the address that's listed on
Mr. Piarulli, does this particular letter of demand relate
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Direct
1
the rental agreement; is that correct?
2
A.
Page 77 of 218
108
Correct.
3
MS. MURRAY:
Thank you, Ms. Loftus.
You can take that
4
down.
And now please publish Government Exhibit 228, which is
5
in evidence.
6
Q.
7
in Government Exhibit 228?
8
A.
Yes.
9
Q.
What information does this reflect?
10
A.
Our repossession attempt notes.
11
Q.
And can you describe what you mean by your repossession
12
attempt notes.
13
A.
14
one of the companies we use, to put notes on their website of
15
any attempts to locate the vehicle, any other notes, and if
16
they've recovered or if they haven't.
17
Q.
18
name listed as the renter for the entry for this rental?
19
A.
First name Gerald, last name Brown.
20
Q.
And looking at the status information, what date was the
21
status information entered?
22
A.
September 17, 2021.
23
Q.
So approximately one week after the letter of demand that
24
we just looked at was dated; is that right?
25
A.
Mr. Piarulli, do you recognize the image that's reflected
When we set out to repossess a vehicle, we ask the company,
And so looking at this particular entry, first, what is the
Correct.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Cross
1
Q.
2
want to focus in particular on the third line.
3
where it begins with "Driver unknown"?
4
sentence, please.
5
A.
"Driver unknown, fraud/stolen ID rental."
6
Q.
Thank you.
Page 78 of 218
And looking at the description of the status information, I
Do you see
Can you read that
7
MS. MURRAY:
If I may have a moment, your Honor?
8
THE COURT:
Sure.
9
MS. MURRAY:
And Ms. Loftus, you can take that down.
10
Nothing further, your Honor.
11
THE COURT:
12
Is there any cross, Mr. Brill?
13
MR. BRILL:
All right.
Thank you.
Yes, your Honor.
14
CROSS EXAMINATION
15
BY MR. BRILL:
16
Q.
Good afternoon, Mr. Piarulli.
17
A.
Good afternoon.
18
Q.
Just a couple of questions.
19
109
Thank you.
You've worked at some point during your career with
20
this company at the actual rental kiosks?
21
A.
At the rental counters, yes.
22
Q.
Yeah, at both JFK and at La Guardia?
23
A.
Not at those locations.
24
Avis and Budget; I worked at all the locations in Manhattan;
25
and the fleet distribution center.
I worked at Newark Airport, both
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Cross
Page 79 of 218
110
1
Q.
During the course of your career with the company, have you
2
familiarized yourself, at least, with those other locations,
3
JFK and La Guardia?
4
A.
Absolutely.
5
Q.
Okay.
6
ask you this way.
7
locations?
8
A.
Yes.
9
Q.
All right.
10
specifically how an employee identifies the renter and how they
11
go about that process?
12
A.
13
along with their license in matching names.
14
will take both the items and process that into a computer.
15
Q.
16
really is, but is there a visual verification that the person
17
on the license is the person standing in front of them?
18
A.
Yes, there is.
19
Q.
Is there a policy that the person standing in front of them
20
has to match the picture on the license?
21
A.
Yes.
22
Q.
With respect to both locations, if they're the same, is
23
there some sort of, that you're aware of, video or still
24
surveillance that would indicate who was actually at the desk
25
at that moment doing the rental?
And so what is the rental process at -- well, let me
Is the rental process similar at both
And what is that rental process in terms of
Renter will present -- renter will present a credit card
The rental agent
And is there -- it's going to sound more technical than it
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Piarulli - Cross
There would be video at certain locations.
Page 80 of 218
111
1
A.
At those two I
2
believe there was at the time, yeah.
3
Q.
4
video or still surveillance from those locations?
5
A.
6
that point I didn't, no.
7
Q.
8
were asked to check the records, the video would already have
9
been erased.
10
A.
I was not able to view it.
11
Q.
Okay.
12
discussed where you would be able to determine who was actually
13
standing at the rental counter, other than the person giving
14
the license?
15
A.
At the time, no.
16
Q.
Okay.
17
your belief that the individual or individuals that rented
18
these vehicles were not the individuals named in the ID?
19
rephrase that if that was unclear.
20
A.
Yes, please do.
21
Q.
When the -- let's just take them separately.
22
belief through your investigation that the actual Mr. Brown was
23
present to rent the Jeep?
24
A.
I believe he was not.
25
Q.
Okay.
And at any point did you have the opportunity to review
I was not -- video usually retains for about 30 days, so at
Okay.
Meaning that, just to be clear, that by the time you
Is there any other process other than what we just
As we sit here today, would it be fair to say it's
Is it your
And just similarly, is it your belief that the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
I can
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Littwin - Direct
Page 81 of 218
112
1
actual Mr. Herttua was the one actually renting the Jeep?
2
A.
Same, yes.
3
Q.
Okay.
4
you have, would it be a fair conclusion from what you have that
5
the individual who presented the ID at those counters -- I
6
mean, the person whose picture was on the driver's license --
7
was the person who rented the vehicle, not by name but just by
8
picture?
9
A.
Yes.
10
Q.
Okay.
11
an image capture of the driver's license of the person who
12
rents the vehicle?
13
A.
No, there is not.
14
Q.
Okay.
15
what the picture was on the license of the person in either
16
rental, right?
17
A.
That would be correct.
18
Q.
Okay.
19
no way to retrieve video or photo evidence of the person who
20
showed up at the desk, right?
21
A.
Is there -- based upon what you -- the information
And in your rental system, is there a photo capture,
So there's no way, as we sit here today, to know
And there's no -- just to dot all the i's, there's
That's correct.
22
MR. BRILL:
Okay.
Just give me one second.
23
Thank you, Mr. Piarulli.
24
THE COURT:
25
Anything on redirect?
All right.
I have nothing further.
Thank you, Mr. Brill.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Littwin - Direct
1
MS. MURRAY:
No, your Honor.
2
THE COURT:
All right.
3
are excused.
4
and be safe.
Page 82 of 218
113
No redirect.
Thank you very much, sir.
Thank you for being here today.
You
Please be well
5
THE WITNESS:
6
(Witness excused)
7
THE COURT:
And the government's next witness?
8
MR. FELTON:
Your Honor, the government calls Kathleen
THE COURT:
Ms. Littwin, good afternoon.
9
Thank you.
Littwin.
10
11
please stand here in the witness box.
12
courtroom deputy will administer the oath.
13
THE DEPUTY CLERK:
14
(Witness sworn)
15
THE DEPUTY CLERK:
16
your name for the record.
17
18
THE WITNESS:
And my
Please raise your right hand.
Thank you.
Please spell and say
Kathleen Littwin, K-A-T-H-L-E-E-N,
L-I-T-T-W-I-N.
19
20
Thank you.
If you would
THE DEPUTY CLERK:
Thank you.
Please be seated.
KATHLEEN LITTWIN,
21
called as a witness by the Government,
22
having been duly sworn, testified as follows:
23
DIRECT EXAMINATION
24
BY MR. FELTON:
25
Q.
Good afternoon, Ms. Littwin.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Littwin - Direct
Page 83 of 218
114
1
A.
Good afternoon.
2
Q.
Where do you work?
3
A.
The United States Small Business Administration.
4
Q.
How long have you been with the Small Business
5
Administration?
6
A.
17 years.
7
Q.
Is the Small Business Administration sometimes known as the
8
SBA?
9
A.
Yes.
10
Q.
What is the SBA?
11
A.
We are a federal government agency that assists businesses
12
with obtaining capital to grow or start their business, but
13
there's also a component that involves assisting businesses
14
with disaster recovery.
15
Q.
You said the word capital.
16
A.
Funding or -- funds to assist the business with its
17
operations or with its growth.
18
Q.
What is your current title at the SBA?
19
A.
I'm center counsel for the COVID EIDL Servicing Office.
20
Q.
What does that position entail?
21
A.
I oversee the legal department for all servicing,
22
liquidation, collections of all COVID EIDL loans.
23
Q.
And how long have you been in that position?
24
A.
This position is new.
25
Q.
What did you do before you were in your current position at
What does that mean?
It's only been about a month.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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the SBA?
2
A.
3
Inspector General.
4
Q.
What does that mean?
5
A.
I oversaw the fraud department, and that included reviewing
6
files suspected of fraud or misuse, referring those files to
7
the Office of Inspector General, assisting with review of files
8
for prosecution or testimony at trial.
9
Q.
How long were you in that position, approximately?
10
A.
About 12 years.
11
Q.
And you said you'd been at the SBA for about 17 years
12
total?
13
A.
Yes.
14
Q.
What about the five or so years before that?
15
A.
I served as an attorney and I reviewed loans for closing,
16
compliance, training, kind of a jack of all trades the first
17
few years.
18
Q.
19
Disaster Loan program?
20
A.
Yes.
21
Q.
Is that sometimes known shorthand as something else?
22
A.
Yes, it's known as the EIDL program.
23
Q.
And how do you spell EIDL, as you're referring to it?
24
A.
E-I-D-L, and so it's the first letter of each word for
25
Economic Injury Disaster Loan.
I served as an attorney advisor, liaison to the Office of
Ms. Littwin, are you familiar with the Economic Injury
SOUTHERN DISTRICT REPORTERS, P.C.
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Q.
At a general level, what is the EIDL program?
2
A.
It is a program to assist businesses who have had economic
3
injury caused by a declared disaster.
4
Q.
When was it established?
5
A.
The SBA program was established in 1953.
6
Q.
What is the general purpose of EIDL?
7
A.
It is to provide working capital to a business to assist
8
with their recovery from a disaster, so to assist with meeting
9
their ongoing obligations so that they don't have to close
10
their doors.
11
temporarily close, and it assists with meeting those
12
obligations during that time period.
13
Q.
Who, if anyone, administers the EIDL program?
14
A.
The SBA.
15
SBA.
16
Q.
When you say direct lending, what do you mean by that?
17
A.
So SBA is actually the one who receives the applications,
18
reviews those applications, approves them, and provides the
19
funding.
20
application directly to SBA.
21
Q.
How are the funds distributed?
22
A.
Once SBA has approved the loan and the decision is made to
23
disburse, we send a notification to the Treasury Department,
24
who issues those funds to the borrower.
25
Q.
For example, during COVID, many businesses had to
It's a direct lending program provided by the
As opposed to going to a bank, you would submit your
Geographically, if you know, where do SBA EIDL payments
SOUTHERN DISTRICT REPORTERS, P.C.
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come from?
2
A.
3
office in Denver, Colorado, sends a message to the Treasury
4
Department in Kansas City, Missouri, and the server that they
5
use to send that message is located in Sterling, Virginia.
6
Q.
Generally, what allows a business to seek EIDL funds?
7
A.
There must be a declared disaster, and then the business
8
must meet certain eligibility requirements.
9
is open, they would submit the application, and they must be --
10
for example, a small business, they must be under 500 employees
11
for the COVID program.
12
Q.
13
requirements?
14
A.
15
they cannot be involved in business that is sexual in nature;
16
we look at back child support, criminal history, credit.
17
Q.
18
available for, historically?
19
A.
20
it could also be the BP oil spill, but it can also be in
21
conjunction with a physical disaster.
22
Hurricane Sandy, a business could obtain assistance both to
23
rebuild their -- their property or for physical damages, but
24
they could also have assistance for economic injury—-for
25
example, if a business was -- a restaurant, let's say, was
So once the decision has been made to disburse, the SBA
Once the program
Are there any other examples of some of the eligibility
They must be operating lawfully within the United States;
What types of situations have EIDL funds been made
So the program in general could be for things such as 9/11,
So for example, during
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damaged and they were closed while they were making repairs—-so
2
the same economic injury can be available in both situations.
3
Q.
4
for?
5
A.
6
specifically because of COVID-19, but again, 9/11 or the BP oil
7
spill.
8
Q.
9
EIDL program as it related to the COVID-19 pandemic.
10
A.
11
happened in early March of 2020 for the state of New York.
12
that allowed businesses to submit an application for
13
assistance.
What recent disasters, if any, have EIDL funds been used
So for COVID EIDL, in particular, a disaster was declared
Could you please walk the jury through the rollout of the
So the first step was the disaster declaration, which
And
14
Shortly after, there was a change or an enhancement to
15
the standard program under the CARES Act, and that expanded who
16
could apply.
17
to -- independent contractors were eligible, agriculture-based
18
businesses were also eligible, and it provided additional
19
funding for the program, for the COVID EIDL program.
20
Q.
21
disbursed to businesses through the EIDL program during the
22
entirety of the COVID pandemic?
23
A.
24
year, it was approximately $391 billion.
25
Q.
So for example, now contractors were eligible
To your knowledge approximately how much money has the SBA
For this specific disaster, through May of '22, May of this
And that's billion with a B?
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A.
Yes.
2
Q.
Between August 2020 and October 2021, what were some of the
3
qualifications for applying for EIDL funds?
4
A.
5
business or that the owner had appropriate credit.
6
used to look at repayment ability for the loan.
7
at the criminal history, character, as well as back child
8
support.
9
someone was submitting the application, they would be answering
10
those questions on the application itself.
11
Q.
12
the items that was under consideration?
13
A.
Yes.
14
Q.
Could you help the jury understand what you mean by that.
15
A.
So under the standard program, the -- there would be a
16
calculation to determine how much could the business afford to
17
repay each month, and under the COVID program in particular, we
18
looked at the credit score to make that determination.
19
there was a analysis that was done to check for repayment
20
ability.
21
required additional documentation on repayment ability.
22
Q.
What were the maximum funds available?
23
A.
So for most of 2020, the maximum was $150,000 for a loan.
24
There may have also been eligibility for a grant of up to
25
$10,000.
So SBA would do an initial credit check to ensure that the
Those were several of the key items.
It was also
We also looked
But when
I think I heard you mention the repayment history is one of
So
Loans over a certain amount, over 500,000 may have
In 2021, in April, the loan limit increased to
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500,000, and in September of 2021, it increased to 2 million
2
per business, and if you had more than one business, you could
3
be eligible for up to 10 million.
4
businesses, you could have up to 2 million per business, for a
5
total of 10.
6
Q.
How were EIDL applications assessed?
7
A.
So the initial step was the receipt of the application with
8
an identity validation check.
9
would determine whether the loan would move forward.
10
the credit check to determine if they met the minimum credit
11
threshold.
12
on the answers on the application.
13
requirements, it would -- a notification would be sent to the
14
applicant to log in and accept a loan offer.
15
based off of what we calculated from their answers.
16
accepted that offer, it would have a loan officer review, a
17
two-step loan officer review.
18
would be a notification to sign the closing documents, and upon
19
the signing of the closing documents, the loan would be funded.
20
Q.
21
EIDL program?
22
A.
SBA.
23
Q.
What are some of the important considerations that the SBA
24
keeps in mind when considering whether to approve a loan under
25
the EIDL program?
So if you had five
There were then two steps that
One was
The other was calculating the eligible amount based
If those items met our
And that would be
After they
If it was approved, then there
Just so I'm clear, who ultimately approves a loan under the
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(212) 805-0300
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A.
So we are asking certain questions on the application that
2
are important to eligibility.
3
credit history as well as back child support.
4
the credit score.
5
application in order to make our determination.
6
Q.
7
certifications in processing EIDL applications?
8
A.
9
assistance as quickly as possible.
10
without timely assistance, they may not be able to reopen.
11
so we were trying to get funds in their hands as quickly as
12
possible to keep them operating and allow them to -- to
13
continue and not have an impact on the economy.
14
Q.
15
application one of the important considerations to the SBA in
16
considering whether to approve a loan under the EIDL program?
17
A.
Yes.
18
Q.
What, if any, are some of the factors that might be
19
disqualifying for a business seeking EIDL funds?
20
A.
21
particular program, if it had more than 500 employees; if it
22
wasn't operating legally under the laws of the United States,
23
so, for example, a marijuana-based business; if it was sexual
24
in nature; if the credit score did not meet the minimum
25
requirement; if there was a criminal history, a recent criminal
I've mentioned, for example, the
There are also
But we're relying on their answers on the
To your knowledge why does the SBA rely on the
For this particular disaster, there was a need to provide
Businesses were closed, and
And
Is the truthfulness of the representations in an EIDL
If it wasn't a small business; if it had -- for this
SOUTHERN DISTRICT REPORTERS, P.C.
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history, or back child support.
Those are just some of the
2
factors.
3
Q.
4
extended under the EIDL program during the COVID pandemic?
5
A.
They're generous terms.
So they're a 30-year repayment.
6
They're low interest rate.
If the loan has collateral, there
7
would be, depending on the type, a $100 recording fee, but
8
other than that, there are no other fees, costs associated with
9
the loan.
10
a program that's been established to help those businesses
11
recover as quickly as possible.
12
Q.
13
under the EIDL program?
14
A.
15
security interest in the business assets, and SBA would record
16
a UCC filing to evidence that, that collateral.
Generally speaking, what are the loan terms for loans
There's no prepayment penalties, no late fees.
It's
What, if any, collateral does the SBA collect on loans
So for a loan of more than 25,000, SBA would take a
17
For loans of over 500,000, SBA may have taken real
18
property as collateral, such as a mortgage on the business
19
location.
20
Q.
21
the jury understand what you mean by that.
22
A.
23
when it is not a piece of real property, where you would have a
24
mortgage recorded, you would file your interest to prove to
25
others that you have an interest in that property with the
In lay terms -- you mentioned a UCC filing.
Yes.
Could you help
So when the property is not titled, like a car, or
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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secretary of state, and so it would include information about
2
the business assets you're taking; so for example, the
3
machinery equipment for the business, their accounts
4
receivable, inventory, those types of assets that are not fixed
5
real property or titled.
6
Q.
7
consequences, if any?
8
A.
9
collections process, which may include referring the borrower
10
to the Treasury.
11
taking of tax returns -- tax refunds.
12
additional steps if the loan is not repaid to recoup those
13
funds.
If the listed borrower doesn't repay the loan, what are the
If there is no repayment, it may be routed through the
14
15
It could include garnishing of wages or
MR. FELTON:
And so there are
Ms. Loftus, I'd ask you to please publish
Government Exhibit 160, which is in evidence.
16
If you could just blow up the text portion of this
17
exhibit, please.
18
Q.
Ms. Littwin, do you recognize this document?
19
A.
Yes.
20
Q.
What is it?
21
A.
This is the loan authorization and agreement.
22
contract between SBA and the borrower, and it outlines the
23
terms and conditions of the loan.
24
25
MR. FELTON:
It's the
Ms. Loftus, could you please turn to the
next page of the exhibit.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
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And if you could blow up that first text paragraph,
2
please.
3
Q.
Ms. Littwin, who are the parties to this loan?
4
A.
SBA and Mula Apps Corp.
5
Q.
Do you see where an address is listed for Mula Apps Corp.?
6
A.
Yes.
7
Q.
Could you please read that for the jury.
8
A.
244 Fifth Avenue, Suite T251, New York, New York 10001.
9
Q.
Do you see an amount of the loan in this document?
10
A.
$150,000.
11
MR. FELTON:
Ms. Loftus, could you please turn to
12
page 3.
Ms. Loftus, could you blow up that second section, Use
13
of Loan Proceeds, and the bullet underneath it.
14
Q.
Ms. Littwin, what does this section mean?
15
A.
This outlines how the borrower should use the loan funds,
16
and it indicates that they're supposed to use them to alleviate
17
economic injury caused by the disaster, and that this loan in
18
particular indicates there is a $100 recording fee for the
19
collateral.
20
Q.
21
program?
22
A.
23
agreement.
24
collateral, it would not have the $100, and if there was real
25
property as collateral, it would have a different statement
Thank you.
How common is that provision in loans under the EIDL
The use of loan proceeds is in every loan authorization and
The only difference would be if there was no
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about that collateral.
2
Q.
3
under the EIDL program?
4
A.
5
certain amount of time, that they must carry insurance on the
6
collateral, that they must notify SBA if they receive recovery
7
funds from another source for the same disaster.
What are some of the other standard requirements for loans
That the closing documents must be returned within a
8
9
MR. FELTON:
Ms. Loftus, could you please turn to
page 5.
10
And I'd ask you to just blow up the text Borrower's
11
Certifications and the first three bullets underneath those,
12
please.
13
Q.
Ms. Littwin, what are the Borrower's Certifications here?
14
A.
The borrower is certifying that there's been no adverse
15
change in their financial condition since the application was
16
submitted, which could include things like filing for
17
bankruptcy or having a -- an arrest or a conviction.
18
they're also certifying that all of the information they've
19
provided with the application and any supplementary
20
applications are true, correct, and complete, and that SBA is
21
relying on that information to approve and disburse the loan.
22
Q.
23
on the screen?
24
A.
25
And
And that last statement you made, is that the third bullet
Yes.
MR. FELTON:
Ms. Loftus, let's turn to page 7, please.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
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Now if you could just blow up the signature on the
2
bottom.
3
Q.
4
signed this loan?
5
A.
Jonathan Lipow.
6
Q.
Who is this person at Mula Apps?
7
A.
Owner or officer.
8
Q.
What's the date of the signature?
9
A.
November 4th of 2020.
10
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Ms. Littwin, what is the name of the person who supposedly
(Continued on next page)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
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MR. FELTON:
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Ms. Loftus, let's please turn to page 30.
2
If you could just blow up the header, the bank, and the entity
3
name.
4
Q.
Ms. Littwin, what does this document appear to be?
5
A.
It appears to be a Chase Bank statement.
6
Q.
Is that a bank statement that's provided by the SBA or
7
provided by the loan applicant?
8
A.
The loan applicant.
9
MR. FELTON:
Ms. Loftus, please turn to page 43.
And,
10
Ms. Loftus, if you could just blow that up, please.
11
Q.
Ms. Littwin, what does this document appear to be?
12
A.
It appears to be a New York State driver's license.
13
Q.
What's the listed name of the person on this identification
14
card?
15
A.
16
Jonathan Lipow.
MR. FELTON:
Ms. Loftus, please turn to page 45.
And
17
if we could zoom in on business information and the first maybe
18
eight or nine rows.
19
Q.
What is this document, Ms. Littwin?
20
A.
It's the original intake application.
21
answers that the applicant provided at the time that they
22
submitted the application.
23
Q.
24
application?
25
A.
That's good.
So it represents the
And what, again, is the business legal name of this
Mula Apps Corp.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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Q.
2
revenues for the 12 months prior to the date of the disaster?
3
A.
Yes.
4
Q.
What is the figure provided by the applicant in this
5
document?
6
A.
Do you see where there's an inquiry regarding the gross
$2,706,852.
7
MR. FELTON:
Ms. Loftus, if we could zoom out here,
8
and then blowup the top right corner of this document.
9
Q.
10
number listed on the right?
11
A.
Yes.
12
Q.
Based on this information, where electronically did this
13
electronic SBA EIDL application get sent to?
14
A.
Ms. Littwin, do you see where there's an EIDL application
It went to a server located in West Des Moines, Iowa.
15
MR. FELTON:
Ms. Loftus, if we could please turn to
16
page 48 and blowup the bottom portion where it says funding,
17
please.
18
Q.
19
mean?
20
A.
21
loan file that indicates that funding was successful on
22
November 7th of 2020 for $150,000.
23
Q.
And was this note added by the SBA?
24
A.
Yes.
25
128
Thank you.
Ms. Littwin, what does this bottom position of the document
This is a system generated note that had been added to the
MR. FELTON:
And, Ms. Loftus, if we could please turn
SOUTHERN DISTRICT REPORTERS, P.C.
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to page 54 and blowup the entire related applications portion
2
of this document.
3
Q.
4
document?
5
A.
6
the case manager who's working on the loan or reviewing the
7
loan, and it tells them if there are any other applications
8
that are related to this particular application.
9
tell them that it could be related, for example, by a device,
10
an address, a phone number.
11
It could be a Social Security number or a tax ID number.
12
it will indicate what piece of information matched with another
13
application.
14
Q.
15
matched according to this document?
16
A.
By device, phone number and address.
17
Q.
And if you could take the first row and just read the row
18
horizontally across to the jury, please.
19
A.
20
a doing business as name of Twinway Air, with the business
21
contact as Gerald Hanson; a date of October 23 of 2020.
22
application was declined, and the matching field was "devices."
Ms. Littwin, what does related applications mean in this
So the system provides information to the loan officer or
And it will
It could also be an email address.
And
And in this document, what are some of the fields that
The legal name is Twinway Air Charter Corp, with a d/b/a or
23
MR. FELTON:
That
Ms. Loftus, if we could now display
24
Government Exhibit 162 for the jury, which is in evidence as
25
well.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
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2
THE COURT:
Okay.
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Mr. Felton, when you find a
convenient breaking point, we'll take our lunch break.
3
4
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MR. FELTON:
Your Honor, I have less than five minutes
THE COURT:
Okay.
left.
5
Fine.
Let's push through.
6
Q.
Ms. Littwin, looking at Government Exhibit 162, do you
7
recognize this document?
8
A.
Yes.
9
Q.
What is it?
10
A.
It's an original intake application submitted by an
11
applicant with their answers as they submitted it.
12
MR. FELTON:
And, Ms. Loftus, if you could blowup the
13
top right corner again.
14
Q.
15
here?
16
A.
Yes.
17
Q.
Based on this information, where did this SBA EIDL
18
application get sent to?
19
A.
West Des Moines, Iowa.
20
Q.
And when, if you know, was this application submitted to
21
the SBA?
22
A.
December 8 of 2020.
23
Q.
So the date created field means when the SBA received it?
24
A.
It means when the applicant hit the submit button to send
25
it to SBA.
Ms. Littwin, do you see an identical application number
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MR. FELTON:
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If we could zoom out, please, Ms. Loftus
2
and blowup the business information, first few rows.
3
you.
4
Q.
Ms. Littwin, what's the name of the applicant here?
5
A.
Jetaway Jets Corp.
6
Q.
How much does this applicant claim in gross revenues for
7
the 12 months prior to the date of the disaster?
8
A.
$3,120,156.
9
Q.
And what is your understanding of the term gross revenues?
10
A.
That is the business' income, so what they would have
11
reported on their taxes as their income for that 12-month
12
period.
13
Q.
14
employees?
15
A.
Yes.
16
Q.
What is that?
17
A.
Eleven.
18
Thank
You see on the bottom here it lists the number of
MR. FELTON:
And if we could zoom out, Ms. Loftus, and
19
then blowup the bottom portion of this page.
20
Q.
Ms. Littwin, who is listed as the owner of this business?
21
A.
William Jamison.
22
MR. FELTON:
Let's turn to page 9, please, Ms. Loftus.
23
And could you please blowup the related applications.
24
Q.
25
of this document?
Again, what do the related applications mean in the context
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
Littwin - Direct
Page 101 of 218
1
A.
2
particular factor that -- to this specific application.
3
Q.
What are the matching fields in this document?
4
A.
Devices and IP addresses.
5
Q.
Could you please read the fourth row, the Mula Apps Corp
6
row to the jury?
7
A.
8
of Jonathan Lipow, with a date of July 27 of 2021.
9
was declined, and the matching field was devices.
132
These are other applications that are related by a
Mula Apps Corp, with a d/b/a of Mula Apps, with a contact
10
MR. FELTON:
Application
Ms. Loftus, could you please turn to the
11
next page and just blowup the related applications here as
12
well.
13
Q.
14
related applications portion of the document?
15
A.
All of these applications are also related by device.
16
Q.
And could you just read the contacts, just vertically down
17
on this page?
18
A.
19
Krokes, Gregg Gerken.
20
MR. FELTON:
Thank you.
Ms. Littwin, what is the -- what's happening here on the
Thomas Allen, Nathanal Salnick, Christopher Potash, John
One moment, your Honor.
21
Q.
Regarding the related applications that you were just
22
discussing, Ms. Littwin, what is the relevance of this related
23
application analysis to the SBA's review?
24
A.
25
to approve the loan.
So it relates to the loan officer's determination whether
So, for example, if we have multiple
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
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1
applications by the same business, they would only be eligible
2
for one loan.
3
they would decline the second application in time, if one of
4
the other factors is looking for indications of potential
5
fraud.
6
And so if they saw an additional application,
So, for example, if you saw an application that was
7
related by bank account but it was for a different person or a
8
different business, that would indicate to the loan officer
9
that they should do an additional review.
10
Q.
What does it mean to be related by device in this document?
11
A.
So when the application is submitted, there is a capturing
12
of the browser and the operating system, and that creates a
13
unique device ID that is stored within the system.
14
that same ID number is -- comes up on another application, it
15
would indicate a link by device.
16
17
MR. FELTON:
And once
Ms. Loftus, could you please publish
Government Exhibit 162 for the jury, which is in evidence.
18
And this is the last document for the witness.
19
If you could just blowup the email address and the
20
owner name on the bottom of the exhibit, please.
21
Q.
What is the business email on this exhibit?
22
A.
WJamison758@gmail.com.
23
Q.
And what is listed as the business activity and detailed
24
business activity?
25
A.
Transportation and airlines.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
1
Document 94 Filed 11/18/22
Littwin - Direct
MR. FELTON:
Page 103 of 218
And, Ms. Loftus, if we could just blowup
2
again the actual business owner, the last three lines of this
3
exhibit, please.
4
Q.
Ms. Littwin, who is the business owner?
5
A.
William Jamison.
6
MR. FELTON:
No further questions, your Honor.
7
THE COURT:
All right.
8
We're going to take our lunch break now, ladies and
9
134
Thank you.
gentlemen.
10
So, Ms. Littwin, you are still under oath, and we'll
11
pick up with your cross-examination by Mr. Brill after lunch.
12
So please do not discuss the case or your testimony with anyone
13
over the lunch break.
14
THE WITNESS:
15
THE COURT:
16
17
18
19
20
All right.
Okay.
And, ladies and gentlemen of the jury,
please enjoy your lunch.
Leave your notebooks here.
I remind you again, please don't talk about the case
over the lunch break.
All right?
I will see everyone back here at roughly 2:00 at the
very latest.
All right.
Thank you.
21
THE DEPUTY CLERK:
22
(Jury not present)
23
(Continued on next page)
All rise for the jury, please.
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
2
THE COURT:
Ms. Littwin.
Document 94 Filed 11/18/22
Littwin - Direct
All right.
Page 104 of 218
135
You may step down,
Thank you.
3
Everyone else, you can be seated.
4
Is there anything for the record from the government?
5
MS. MURRAY:
6
of scheduling.
7
today?
8
Your Honor, just a question for purposes
How late do you anticipate that we will go to
THE COURT:
I had said roughly 4:30 each day unless
9
you're right in the middle of a witness.
10
more minutes with a witness, I would go a little further, but
11
--
12
MS. MURRAY:
Understood.
Like if you had five
I was just curious in light
13
of the start time today, so I could anticipate how the schedule
14
is going now.
15
Lidsky when we do break for the day.
We will likely be in the middle of Special Agent
16
THE COURT:
Today?
17
MS. MURRAY:
Today.
Yes, your Honor.
So he is the
18
case agent, and if he is on direct examination, I just wanted
19
to inquire of the Court whether we would be permitted to meet
20
with him tonight in connection with trial-related matters
21
independent of his testimony, what the Court's view is on that.
22
THE COURT:
Mr. Brill.
23
MR. BRILL:
Given his designation as the case agent,
24
the government certainly has a lot of leeway.
Obviously,
25
should Agent Lidsky say something today and come in tomorrow
SOUTHERN DISTRICT REPORTERS, P.C.
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1
and say something different, I would have a different view, but
2
other than that, I think the government is within its rights to
3
confer.
4
THE COURT:
All right.
I don't disagree with that.
5
It's fine for you to confer, but I also think it's fair grounds
6
for cross-examination should there be an issue that gets
7
presented, as Mr. Brill is suggesting.
8
9
MS. MURRAY:
Thank you, your Honor.
understand, and we appreciate that clarification.
10
THE COURT:
Okay.
11
MR. BRILL:
No.
12
THE COURT:
All right.
13
stand in recess.
14
go at 2:00.
15
16
Completely
Anything from you Mr. Brill?
Thank you, your Honor.
Thank you, everybody.
We'll
Please be back before two o'clock, ready to
Okay?
I do have a Board of Judges' lunch I need to get to
the right now.
17
MS. MURRAY:
18
(Luncheon recess)
Thank you, your Honor.
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
Document 94 Filed 11/18/22
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1
AFTERNOON SESSION
2
2:25 p.m.
3
4
THE COURT:
All right.
Page 106 of 218
137
Are we ready to resume with
the jury?
5
MS. MURRAY:
Yes, your Honor.
6
THE COURT:
We have our witness -- Mr. Brill, did you
MR. BRILL:
Just an update on the food situation, your
7
have --
8
9
Honor.
10
informed me MDC did not send food this morning.
11
12
There was no sandwich.
THE COURT:
Crackers again.
The Marshals
You told me already they did not send food
this morning.
13
MR. BRILL:
That was yesterday.
14
THE COURT:
Well, I mean, I sent the note when we
15
talked early this morning.
16
do something --
17
18
19
MR. BRILL:
I didn't expect they'd be able to
The Marshals at that point didn't know if
they had a sandwich this morning -THE COURT:
Afterwards, if the Marshals could speak to
20
me, maybe they can do something, but I do know that our contact
21
at MDC was actually tied up because a group of judges went to
22
MDC today.
23
of those judges, and, in fact, our Board of Judges' meeting was
24
delayed waiting for the judges to get back.
25
certain she hasn't even seen my email yet.
So while I sent the email, she was meeting with all
So I'm quite
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO3
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1
MR. BRILL:
All right.
2
THE COURT:
But you'll let me know if it continues to
3
4
5
6
7
8
be a problem.
I apologize, Mr. Ilori.
I don't really understand the
situation -But if the Marshals can think about is there any way
you can facilitate getting food for Mr. Ilori -U.S. MARSHAL:
Your Honor, I can talk to management
9
and see what they can do.
10
sending sandwiches or a meal.
11
as he described.
To my understanding, MDC has quit
They do the crackers or pretzels
I can see what management can do.
12
THE COURT:
13
cafeteria for him?
You can't get a sandwich out of the
14
U.S. MARSHAL:
15
THE COURT:
16
Thank you.
I can't.
Okay.
It's policy.
I can't change BOP policy.
But I
did send an email, and I should get a response.
17
All right.
Is there anything else we need to take up?
18
MR. BRILL:
No, your Honor.
19
THE COURT:
Do we have the witness?
20
MS. MURRAY:
Yes, your Honor.
21
THE COURT:
Good afternoon, Ms. Littwin.
22
All right.
And, Ms. Dempsey, you can retrieve our
23
jurors, please.
24
(Jurors present)
25
THE COURT:
You're all allowed to sit.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MAQDILO5
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1
All right.
2
Good afternoon, ladies and gentlemen.
139
Please be seated, everyone.
Thank you for
3
your patience.
4
judges' meeting we had ran a little delayed, so I apologize to
5
all of you.
I'm sorry that I was a few minutes late.
6
Ms. Littwin, you remain under oath.
7
Counsel.
8
MR. BRILL:
The
Thank you, your Honor.
9
CROSS-EXAMINATION
10
BY MR. BRILL:
11
Q.
Good afternoon, Ms. Littwin.
12
A.
Good afternoon.
13
Q.
So I was looking through Exhibit 160, 161, 162.
14
like there are a couple of different matching fields.
15
You had mentioned one being devices, correct?
It looks
16
A.
Yes.
17
Q.
Okay.
18
snapshot of the operating system and the browser?
19
A.
Yes.
20
Q.
Okay.
21
to give that computer a unique fingerprint?
22
A.
No, I do not.
23
Q.
Okay.
24
helps refresh your memory, but looking at Exhibit 162, there's
25
a separate matching field for a company called Splendor Air
And devices, as you explained it, was some sort of
And do you know technically what is being captured
Looking at -- and obviously we can put this up if it
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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140
1
Charters, LLC, that indicates that a matching field was devices
2
-- it looks like there might be a comma there -- IP addresses.
3
So the -- that is page 7482 of Exhibit 162.
4
THE COURT:
Is there a question?
5
MS. MURRAY:
We're trying to identify the page
6
Mr. Brill is discussing for the witness.
7
8
MR. BRILL:
easier.
9
10
So if we could put it up, it might be
There we go.
And maybe we could just highlight that
bottom pink part.
11
THE COURT:
All right.
12
find what you're looking for.
The government is trying to
13
Do we have it?
14
MR. BRILL:
Yeah.
15
THE COURT:
They have it.
16
MR. BRILL:
They have it.
We've got it.
17
Q.
So see "devices, IP addresses" there in the second line?
18
A.
Yes.
19
Q.
So it appears at least the data being collected to identify
20
a device is separate from the IP address of the device?
21
A.
That's correct.
22
Q.
Okay.
23
but when the system identified the device that is in the first
24
line, the third, fourth, and fifth line, without the IP
25
address, how unique, if you know, is the fingerprint that is
And I don't know if this is too technical for you,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MAQDILO5
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LITTWIN - CROSS
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1
being captured of those devices without the IP address?
2
A.
I do not know.
3
Q.
Okay.
4
Mula Apps application --
Looking at Exhibit 160, you had indicated that the
5
THE COURT:
6
Let me ask the government, could you call that up,
7
141
Could you hold on one minute?
please, as well so the witness has the document.
8
Thank you very much.
9
Q.
10
approved in the amount of $150,000, correct?
11
A.
This particular application that ends in 3341, yes.
12
Q.
Okay.
13
that was declined?
14
A.
15
compare it, but I believe it was a modification of this
16
application.
17
that match, but I would have to compare the number on that
18
file.
19
Q.
20
the existing EIDL tasks part?
21
here.
You had indicated that the Mula Apps application had been
And then later on there was a separate application
That you're aware?
Based on the related fields there was.
I would need to
There was an increase request.
I believe it was
Can you take a look on this exhibit, page 6726, which is
22
MR. BRILL:
Do you see that?
This page
If you could pull up that page.
23
you.
24
Q.
25
so it's easier to look at.
Thank
So under application history, we can blow that part up just
It looks like the first -- is that
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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LITTWIN - CROSS
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1
what you indicated, that there was an application funded and
2
then a few months later --
3
A.
4
500,000, and that increase request was declined.
5
Q.
6
applications section, just down the page from there.
Yes.
There was a loan increase request to go up to
Okay.
7
142
And then if we could just look at the related
So here the related application that is flagged as
8
declined is the Twinway Air Charter Corp, right?
9
A.
Yes.
10
Q.
And that's based upon the device matching, right?
11
A.
Correct.
12
Q.
The other applications that are flagged as related were not
13
declined, at least at the stage that it is on this page,
14
correct?
15
A.
Correct.
16
Q.
And is that because, for example, with regard to the
17
address, if these are coming from buildings in New York City,
18
there might be multiple businesses at the same address?
19
MR. FELTON:
Objection, Your Honor, form.
20
THE COURT:
Do you know?
21
THE WITNESS:
22
THE COURT:
23
THE WITNESS:
24
THE COURT:
25
THE WITNESS:
Just yes or no.
Yes.
Do you know the answer?
Yes.
You can answer.
The match would be based on the address
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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143
1
field.
So if it did not include, for example, a suite or an
2
apartment number, it would match off of the basic field.
3
Q.
4
one has a match based upon phone number, right?
5
A.
Yes.
6
Q.
And that would be, again, the phone number that's placed in
7
an application field for phone number?
8
A.
9
sorry, multiple phone numbers requested on the application.
10
Q.
11
application, what does that mean?
12
A.
13
pulled the credit, and a notification would have been sent to
14
the applicant to log into the portal and to accept the offer
15
and submit it back to SBA.
16
submit it -- to accept and submit it back to SBA yet, so it did
17
not proceed with the processing.
18
Q.
19
ID required or is it just part of the process?
20
A.
21
there was a problem with the loan, a reconsideration request
22
for a previously declined loan, but it's not part of the
23
original filing requirements.
24
Q.
25
one we're looking at now --
Okay.
Yes.
Okay.
And then looking at A&M Superior Consulting, this
And there are multiple application numbers -- or, I'm
And when it says "credit pulled" for that
That means the application has been submitted, we have
Okay.
This applicant had not logged in to
Now, in order to get one of these loans, is a photo
It is not a standard requirement.
Okay.
It may be required if
And with regard to the Mula Apps application, the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MAQDILO5
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LITTWIN - CROSS
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1
MR. BRILL:
2
license, please, Ms. Loftus.
I have it as page 6715, but I
3
know that may not match up.
There we go.
4
Q.
5
was required as part of the initial application for this
6
application?
7
A.
8
a decline process, and a loan officer requested additional
9
information, including the identification.
10
Q.
11
the legitimacy of the photo IDs that were sent in?
12
A.
13
of alteration or fabrication.
14
plugged in to a verification system.
15
inspected.
16
Q.
17
SBA's case would not be plugged into a database to
18
independently verify it, correct?
19
A.
Correct.
20
Q.
All right.
21
there was or was not an actual person named Jonathan Lipow?
22
A.
I do not know.
23
Q.
Okay.
24
was an actual person, if that was actually him in the photo?
25
A.
144
If we could just pull up that driver's
Thank you.
Was this -- do you know after a review of this file if this
It was requested as part of the -- the application started
What type of process was used at SBA at that time to verify
The assigned loan officer would review it for indications
Okay.
The number, for example, was not
It was visually
So the ID number at the top, starting in 412, in the
Any indication if there -- if you know, if
I do not know.
And any indication that SBA had that -- if Mr. Lipow
No, I do not know.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
Document 94 Filed 11/18/22
LITTWIN - REDIRECT
1
Q.
I don't have anything further.
2
A.
Thank you.
Page 114 of 218
145
Thank you.
3
THE COURT:
4
Redirect?
5
MR. FELTON:
Very briefly, your Honor.
6
THE COURT:
Okay.
7
REDIRECT EXAMINATION
8
BY MR. FELTON:
9
Q.
10
licenses as part of SBA applications?
11
A.
Yes.
12
Q.
When drivers' licenses are submitted by an applicant for an
13
EIDL loan, do they submit photos or a scan of the document or
14
an actual hard copy or the photo itself?
15
A.
A photo, a scan, it could be emailed, a fax.
16
Q.
Not the actual driver's license?
17
A.
Correct.
Thank you, Mr. Brill.
Ms. Littwin, do you recall being asked about drivers'
18
THE COURT:
19
I assume no recross?
20
MR. BRILL:
No, your Honor.
21
THE COURT:
All right.
22
Thank you.
You are excused --
Thank you.
You are excused.
very much.
23
THE WITNESS:
24
THE COURT:
25
(Witness excused.)
Thank you.
Thank you for being here.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Thank you
Case 1:21-cr-00746-MKV
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1
2
Document 94 Filed 11/18/22
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MS. MURRAY:
Your Honor, the government calls Kandace
THE COURT:
Good afternoon, ma'am.
Zelaya.
3
If you would,
4
please stand here at the witness box, and once you're settled,
5
my courtroom deputy will administer the oath.
6
KANDACE ZELAYA,
Thank you.
7
called as a witness by the Government,
8
having been duly sworn, testified as follows:
9
DIRECT EXAMINATION
10
BY MS. MURRAY:
11
Q.
Good afternoon, Ms. Zelaya.
12
A.
Good afternoon.
13
Q.
Where do you work?
14
A.
The United States Small Business Administration.
15
Q.
Is that also referred to as the SBA?
16
A.
Yes, it is.
17
Q.
What is the SBA?
18
A.
The SBA is an independent agency of the Federal Government
19
that provides financial assistance, technical and managerial
20
assistance, entrepreneurial assistance and government
21
contracting assistance to small businesses throughout the
22
country.
23
Q.
Do you work in a particular division of the SBA?
24
A.
I work in the office of general counsel.
25
Q.
What is your current title?
SOUTHERN DISTRICT REPORTERS, P.C.
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1
A.
My current title is trial attorney in the office of
2
litigation.
3
Q.
How long have you worked in that role?
4
A.
I just moved into that role in April of this year.
5
Q.
Prior to your current position, what other positions, if
6
any, have you held at SBA?
7
A.
8
oversight division in the office before I moved to litigation.
9
Q.
And in your current role, what are your responsibilities?
10
A.
I provide support to our offices.
11
litigation that is pending either when someone has sued the
12
agency or when we have had to file suit against generally one
13
of our lenders.
14
those litigation matters.
15
Q.
16
funding programs that are available to small businesses from
17
the SBA?
18
A.
19
programs.
20
and the 504 program.
21
section of the Small Business Act that authorizes it, and it's
22
a general business loan for small businesses that you can use
23
either to get into business, acquire a business, expand your
24
business, and for most general business purposes, such as
25
working capital, purchasing your building, land to build a
I was a senior attorney in the financial law and lender
I also work on
And I work with our U.S. Attorney's Office on
Ms. Zelaya, generally speaking, what are some of the
We have business loan programs.
We have disaster loan
Our main business loan programs are the 7(a) program
The 7(a) program is named after the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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building, et cetera.
2
Our 504 program is a long-term fixed asset financing
3
program generally for the construction of the business's
4
location or really large long-term equipment.
5
Q.
6
and the 504 loan program, what guarantee, if any, does the SBA
7
offer with respect to any funds that are lent under those
8
programs?
9
A.
10
that the applicant goes to the bank and applies for the loan
11
from the bank, and the bank requests a guarantee from us.
12
the event that the borrower defaults and doesn't pay the loan
13
back, we would pay a percentage of the outstanding balance at
14
the time of default.
15
to 90 percent.
16
Q.
17
the loan amount, what does that mean?
18
A.
19
funds directly.
20
the funds, and we provide the bank with a guarantee which is
21
similar to an insurance policy.
And focusing on those two programs, the 7(a) loan program
The 7(a) program is a guaranteed loan program, which means
In
That can be anywhere from 50 percent up
And just to be clear, when you say that the SBA guarantees
That means that we don't make -- we don't disburse the
22
The bank makes the loan.
The bank disburses
So, again, if that borrower defaults, then we would
23
pay the bank the percentage of the guarantee on that particular
24
loan.
25
Q.
Did there come a time when the SBA offered certain services
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related to relief from the COVID-19 pandemic?
2
A.
Yes.
3
Q.
Was one of those COVID relief programs the Paycheck
4
Protection Program or PPP?
5
A.
Yes, it was.
6
Q.
And when was PPP established?
7
A.
It was established in the CARES Act, which was passed on
8
March 27 of 2020, and we began accepting applications on
9
April 3rd of 2020.
10
Q.
11
CARES Act?
12
A.
13
Securities Act -- or Security Act.
14
passed.
15
relief programs available to help businesses, and individuals,
16
and health care workers deal with the immediate aftermath of
17
the COVID-19 pandemic.
18
Q.
What was the purpose of the PPP?
19
A.
As the name suggests, the purpose was to protect the
20
paychecks of employees of small businesses trying to help those
21
employers who were very limited in their revenues, and because
22
of all of the shutdown orders, et cetera, trying to help them
23
be able to keep those workers paid, so those workers could then
24
pay their bills.
25
Q.
In March of 2020.
And can you describe what you mean when you refer to the
The CARES Act is the Coronavirus Aid Relief Act -- and
Excuse me.
And it was
It's a large encompassing bill that has many COVID
I'd like you to walk us through details of the Paycheck
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Protection Program.
What role, if any, did you have in the
2
implementation of PPP?
3
A.
4
documents for PPP, whether it was the interim final rules that
5
were published setting the parameters of the program, the
6
application forms for the borrower and the lender, the
7
frequently asked questions, and the policy and procedural
8
notices we issue to provide additional guidance.
9
Q.
10
prior to your current role; is that correct?
11
A.
Correct.
12
Q.
What were the eligibility requirements to apply for PPP
13
funds at a high level?
14
A.
15
Traditionally, the small businesses that are already eligible
16
for our 7(a) and 504 programs; in addition, the CARES Act
17
expanded the eligibility to include non-profit organizations,
18
veterans' organizations, tribal organizations, and sole
19
proprietors, qualified self-employed individuals, and
20
independent contractors.
21
standards.
22
eligible for financial assistance from the Small Business
23
Administration, but the size standards were increased for the
24
CARES Act.
25
Q.
150
I was directly involved in PPP for drafting the guidance
And that was in your then role as a lawyer within the SBA
There were numerous entities that were eligible.
And there were expanded size
Normally, businesses have to be small to be
What were the maximum funds available to a particular small
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business under PPP?
2
A.
The maximum loan amount was ten million dollars.
3
Q.
How did the SBA calculate an available PPP loan amount for
4
a specific applicant?
5
A.
6
loan amount by first calculating their average monthly payroll
7
for either the prior 12 months or 2019, and then multiplying
8
that by two and a half.
9
for that particular business.
10
Q.
11
which I believe you just clarified, it's the loan applicant who
12
calculates the loan amount that they're requesting; is that
13
correct?
14
A.
That is correct.
15
Q.
Okay.
16
A.
The SBA administers the PPP in consultation with the
17
Department of Treasury.
18
Q.
19
What is the source of the money that guarantees those loans?
20
A.
21
provide the guarantee.
22
Q.
What percentage of PPP loans did the SBA guarantee?
23
A.
The guarantee on a PPP loan was a hundred percent.
24
Q.
Can you briefly explain the time line of PPP, starting with
25
the March 27, 2020, CARES Act that established the program?
The specific applicant calculates their individual maximum
And that was the maximum loan amount
And just to clarify something that was in my question,
And who administers the PPP?
And you mentioned that SBA loan programs are guaranteed.
Congress appropriates money in order for us to be able to
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A.
The CARES Act was enacted on March 27, and we began
2
accepting applications on April 3rd of 2020.
3
originally included an appropriation of $349 billion, and that
4
money was exhausted by April 14 of 2020.
5
legislation was enacted shortly thereafter to provide
6
additional funds, and there were three or four other subsequent
7
acts that either made changes to the program, extended it.
8
Originally through -- the CARES Act originally set a deadline
9
of June 30 of 2020.
10
that extended it to August 8 of 2020.
11
And the CARES Act
And then subsequent
There was another act passed in early July
And then the Economic Aid Act was passed in December
12
of 2020 that reauthorized first draw PPP loans and then created
13
second draw PPP loans and extended it through March 31st of
14
2021.
15
made additional changes.
16
act in 2021 that extended the program ultimately to June 30 of
17
2021, and that's when the program authority ended to stop
18
making any new loans.
19
Q.
20
loans that were accepted in early April of 2020 and mid April
21
of 2020, approximately 349 billion was disbursed through PPP,
22
correct?
23
A.
Correct.
24
Q.
In total, over the lifetime of PPP, what is the approximate
25
amount of funds that went out to loan applicants?
And then there was the American Rescue Plan Act, which
And, finally, there was an extension
Ms. Zelaya you just mentioned that between the initial
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A.
It was just over $800 billion.
2
Q.
Now, did the SBA provide prospective borrowers of small
3
businesses and the like with information about PPP?
4
A.
5
issued it on our website, and it was also available on the
6
Department of Treasury's website.
7
Q.
8
publish relating to PPP?
9
A.
10
our website and published in the Federal Register, and those
11
would set the program parameters and any time any changes were
12
made.
13
borrower and the lender, a set of frequently asked questions,
14
which was continually updated throughout the life of the
15
program, and, again, various policy and procedural notices.
16
Q.
17
referring to a particular type of institution?
18
A.
19
banks, but there are also non-bank lenders and other financial
20
service providers who are eligible to participate in making PPP
21
loans.
22
Q.
23
process.
24
A.
Yes.
25
Q.
What type of information would a prospective borrower need
Yes.
We posted all of the information we issued as we
What type of information, generally speaking, did the SBA
We published interim final rules that were both posted on
And we also posted the application forms for the
Now, when you use the world lender or lenders, are you
There were banks that are typically federally regulated
Ms. Zelaya, I want to talk about the PPP loan application
Are you familiar with that process?
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to provide in applying for a PPP loan?
2
A.
3
form the SBA created or a lenders' equivalent that collects the
4
same information and certifications.
5
various information about the business, their name, primary
6
contact, the type of business, what they were planning to use
7
the proceeds for.
They would need to complete the application form either the
And it would collect
8
And there are certain questions relating to the
9
eligibility of the applicant, and they would also need to
10
provide supporting documentation to show that they had
11
employees that they paid salary and payroll taxes as of
12
February 15, 2020, because that was required in order to be
13
eligible for a PPP loan under the CARES Act.
14
provide supporting payroll documentation to show how they
15
calculated their average monthly payroll and how they
16
calculated their loan amount.
17
Q.
18
documentation directly to the SBA?
19
A.
No.
20
Q.
And what, if anything, did PPP require a lender to do with
21
information that was submitted by a prospective borrower?
22
A.
23
program was designed to get the money out the door as fast as
24
possible, there was a very streamlined process, so the
25
borrowers were allowed -- they self certified their eligibility
And they had to
Did the borrower submit that application and any supporting
That information went to the lender.
Because the purpose of the program -- purpose of the
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to the program when they submitted all the documentation to the
2
lender, and the lenders were able to rely on those
3
certifications made by the borrower.
4
They had minimal underwriting obligations, which
5
included confirming that the borrower had made all the
6
certifications required in the application, that the borrower
7
had provided the supporting information for their calculation
8
of average monthly payroll, and they were supposed to review
9
that to make sure that they had employees for whom they paid
10
salaries and payroll taxes as of February 15 of 2020.
11
had to comply with their Bank Secrecy Act requirements that
12
they normally comply with for their usual loans.
13
Q.
14
application from a potential borrower, how, if at all, did the
15
lender convey that information to the SBA?
16
A.
17
faith review of it, they entered certain information into our
18
electronic system in order to get the SBA loan number that
19
general -- that reflected the fact that the loan was now
20
guaranteed.
21
And they
Now, once the lender received information and an
Once they received the information and performed their good
So they would only enter certain information,
22
basically the business name, the type of business structure
23
that it was, whether it was a corporation or a partnership, and
24
the loan amount, and the terms of the loan.
25
they had to enter into the system in order for the system to
And that was all
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generate a loan number.
2
Q.
3
what the significance from the SBA's prospective is from
4
generating a loan number?
5
A.
6
to the loan.
7
Q.
8
application information prior to issuing a loan number?
9
A.
10
supporting documentation.
11
that the lender entered into the system electronically.
12
Q.
13
with respect to a particular borrower?
14
A.
15
have a role until the borrower would finish using the proceeds
16
and apply for forgiveness.
17
loan number, the lender was supposed to disburse the loan to
18
the borrower.
19
that borrower would then submit a forgiveness application to
20
their lender.
21
decision to us.
22
Q.
23
are you familiar with the lenders' obligations or the banks' or
24
financial institutions' obligations under PPP?
25
A.
And I believe you just said it, but can you remind us again
Once the loan number was generated, the guarantee attached
Did the SBA undertake any substantive review of PPP loan
No, we did not receive any of the applications or the
We only received the limited field
After the SBA issued a loan number, what was the SBA's role
After the loan number was issued, we didn't necessarily
The lender -- once we issued the
And then we didn't have a role unless and until
And then the lender submitted a forgiveness
Focusing again on the process of the PPP loan application,
Yes.
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Q.
How are you familiar with those applications?
2
A.
We had to include those when we were drafting the interim
3
final rules to set the parameters for the program.
4
MS. MURRAY:
Ms. Loftus, can you please publish
5
Government Exhibit 155, which is in evidence.
6
Q.
Ms. Zelaya, do you recognize Government Exhibit 155?
7
A.
I don't see it yet.
8
Q.
Thank you.
9
A.
There it is.
Yes, I do.
10
MS. MURRAY:
11
JURORS:
12
MS. MURRAY:
And can the jurors all see it?
(Nodding)
Thank you.
13
Q.
And what do you recognize it to be?
14
A.
That is the PPP lender's application for guarantee.
15
157
MS. MURRAY:
Ms. Loftus, if you could zoom in on
16
sections A through C of this particular application.
17
Q.
18
particular PPP application?
19
A.
Capital One.
20
Q.
And looking at section B, what is the name of the borrower?
21
A.
The borrower's name is BRS Consulting Corp.
22
Q.
A few lines below that there's listed an applicant primary
23
contact.
24
A.
Jonathan Herttua.
25
Q.
And then to the right of that entry there is a phone number
Ms. Zelaya, what is the name of the lender for this
Can you read that?
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or a contact number for Jonathan Herttua.
2
that phone number is?
3
A.
646-575-0642.
4
Q.
And then, Ms. Zelaya, in section C there's an amount of the
5
loan that's being requested here.
6
A.
$531,218.
7
Q.
And next to that the guarantee percentage is listed as one
8
hundred percent; is that right?
9
A.
That is correct.
10
Q.
And was that standard based on what you've described about
11
the guarantee rate for PPP loans?
12
A.
Yes.
13
Q.
On all PPP applications?
14
A.
Yes.
15
Q.
What about the interest rate two lines below that, was that
16
also for all PPP loans?
17
A.
18
Can you read what
What is that amount?
All PPP loans were guaranteed one hundred percent.
Yes.
All loans had a one percent fixed interest rate.
MS. MURRAY:
Ms. Loftus, can you turn to page 2 of the
19
agreement, and if you can zoom in on sections E and F, please,
20
together.
21
Q.
22
application, the lender's application reflect?
23
A.
24
has provided the necessary certifications that they were
25
eligible for the loan, either as the type that they were in
Ms. Zelaya, generally speaking, what does section E of this
This is where the lender is telling SBA that the applicant
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operation on February 15 of 2020 and had employees for whom
2
they paid salaries and payroll taxes, or they paid independent
3
contractors and that they're an eligible type of entity.
4
Q.
5
we're looking at, section E reflects that the lender is
6
certifying that it's reviewing information provided by the
7
borrower?
8
A.
9
certification from the applicant that the applicant is
10
eligible.
11
Q.
12
What information does that reflect?
13
A.
14
has provided the certification to the lender that they were, in
15
fact, eligible under the PPP rules in effect when they applied
16
for the loan.
17
Q.
So is it correct that on the lender's application which
Correct.
It's certifying that they have obtained the
And I'm looking at section F at the bottom of this portion.
That, again, is a final certification that the applicant
Thank you.
18
MS. MURRAY:
Ms. Loftus, you can take that down.
19
Q.
Ms. Zelaya, I'd now like to talk about the borrower's
20
obligations under PPP.
21
obligations with respect to the information it submits with a
22
PPP loan application?
23
A.
24
and it has numerous certifications that they have to make, and
25
also several of them have to be individually signed in order to
Yes.
Can you describe the borrower's
Again, they have to complete the application form,
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certify that they have definitely read those and are making
2
those certifications.
3
supporting documentation to support that they had the
4
employees, that they were paying salaries and wages as of
5
February 15 of 2020, and how they calculated their average
6
monthly payroll.
7
Q.
8
certifications were made under the penalty of perjury on a PPP
9
loan application?
10
A.
And then they have to provide the
Ms. Zelaya, do you know whether the borrower's self
Yes, they were.
11
MS. MURRAY:
Ms. Loftus, can you publish Government
12
Exhibit 150, which is in evidence, at page three.
13
Q.
Ms. Zelaya, do you recognize this document?
14
A.
Yes.
15
It is the PPP borrower application form.
MS. MURRAY:
Ms. Loftus, if you could zoom in at the
16
top portion of this document through to the end of applicant
17
ownership.
18
Q.
And we can highlight as we go along for you, Ms. Zelaya.
19
What is the name of the borrower for this PPP loan?
20
A.
The business' legal name is M2 Gold Jet, LLC.
21
Q.
And looking above and to the right is there another name
22
associated with the business applying for this loan?
23
A.
Yes.
24
Q.
Looking below the business name, can you read the
25
particular address that was provided for M2 Gold Jet, LLC?
The d/b/a or trade name is M2 Gold Jet.
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A.
347 7th Avenue, Brooklyn, New York 11215.
2
Q.
And reading right from there, who was listed as the primary
3
contact individual for this business PPP loan application?
4
A.
Christopher Potash.
5
Q.
And the email address next to that?
6
A.
Christopherpotash@gmail.com.
7
Q.
And, finally, what is the loan amount being requested on
8
this borrower's PPP loan application?
9
A.
$172,573.75.
10
MS. MURRAY:
Ms. Loftus, can you please turn to page 4
11
of this exhibit and zoom in on the content of that page.
12
Q.
13
reflected on this portion of the borrower's application form?
14
A.
15
its owners are actually eligible for the PPP, making sure
16
they're not in bankruptcy or have any delinquent federal debt
17
or have defaulted on a previous loan and caused a prior loss
18
for the government, and a few other questions.
19
Q.
20
6 on this list.
21
you explain to us why those two questions required a signature?
22
A.
23
related to the current or past criminal history of the
24
applicant and its owners.
25
in order to make sure that the authorized representative of the
Ms. Zelaya, generally speaking, what information is
These questions are getting to whether the applicant and
Now, there appears to be a digital signature on items 5 and
Yes.
It is covering the text a bit, but, first, can
Those questions require signatures because they are
And it had to be individually signed
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business or the individual, if they're an independent
2
contractor applying for the loan for themselves, actually made
3
that certification, answered that question.
4
MS. MURRAY:
Ms. Loftus, can we please turn to page 5?
5
Q.
6
reflected on this page of the borrower's application?
7
A.
8
certifications that the applicant is making to both the lender
9
and SBA when they're applying for this PPP loan.
10
Q.
11
every PPP loan application?
12
A.
Yes, they were.
13
Q.
How do you know that?
14
A.
Because I was involved in drafting every version of the
15
application.
16
Ms. Zelaya, generally speaking, what information is
This page has the numerous representations and
Were these particular borrower certifications included in
MS. MURRAY:
Ms. Loftus, if you could zoom in on the
17
bottom portion of this document through to the end of the
18
signature lines.
19
slightly cut off again, the language in the second to last
20
paragraph.
21
Q.
22
paragraph of the borrower's certification relate to?
23
A.
24
authorized representative of the applicant acknowledging that
25
they understand that any false statement made to obtain a loan
And if you could please highlight, it's
Ms. Zelaya, generally speaking, what does this particular
This certification is a direct acknowledgment from the
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guaranteed by SBA has consequences under federal statutes that
2
-- including imprisonment and/or fines.
3
Q.
4
certifications made by a borrower on a PPP loan application are
5
made under what we call the penalty of perjury?
6
A.
Yes.
7
Q.
Thank you.
And does this generally reflect that any statements or any
8
MS. MURRAY:
Ms. Loftus, you can take that down.
9
Q.
10
loans?
11
A.
12
to submit.
13
report is as soon as the loan was fully disbursed, the lender
14
needed to report that to us so that way we would know to pay
15
their processing fee.
Ms. Zelaya, did the SBA monitor or track the status of PPP
There was a monthly report that the lenders were required
The main purpose or the initial purpose of the
16
And then after, if the -- as the program went on, they
17
would have to continue to report on the status of all the loans
18
in their portfolio on a monthly basis, and, ultimately, once
19
the borrower applied for forgiveness, if there was forgiveness,
20
for example, if forgiveness was made in full, then the loan
21
would be paid in full and they would reflect that on their
22
status report to us.
23
Q.
24
explain to me what you mean by processing fee?
25
A.
Ms. Zelaya, you just mentioned a processing fee.
Yes.
Can you
The CARES Act mandated that SBA would pay all of the
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lenders a processing fee for each PPP loan they made, so once
2
the loan was fully disbursed, we would pay a percentage of the
3
loan amount as a processing fee to lenders.
4
Q.
5
processing fee for PPP loans they processed?
6
A.
Yes.
7
Q.
What was the repayment period for a PPP loan?
8
A.
Initially, the loan has a two-year maturity.
9
Flexibility Act was passed on June 5th of 2020, that was
10
extended to five years.
11
Q.
12
have to repay the loan?
13
A.
14
not -- they did not receive forgiveness in full, whatever
15
amount was outstanding, they would have to make payments on,
16
just as you would a regular loan, in accordance with the terms
17
of the note.
18
two-year or five-year period.
19
Q.
20
process for those loans?
21
A.
22
payroll and the other eligible non-payroll costs, such as
23
mortgage interest or rent or lease payments on their building,
24
the applicant could then apply to their bank for forgiveness.
25
And, again, they would have to fill out a different form and
Was there a rule or law that entitled lenders to a
It's set forth in the CARES Act itself.
After the PPP
Now, once a loan matured, how much time would a borrower
Well, after -- if they apply for forgiveness and they were
And it would be either the remainder of that
Focusing on the PPP loans, can you describe the forgiveness
Yes.
After the borrower used the proceeds to pay their
SOUTHERN DISTRICT REPORTERS, P.C.
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1
provide supporting documentation depending on the loan amount
2
that showed that they used it for payroll and other eligible
3
expenses.
4
165
And they had to use a minimum of 60 percent on payroll
5
costs in order to get forgiveness.
6
again, review all of that information, the application, and the
7
certifications, and the supporting documentation.
8
lender would submit a forgiveness decision to SBA, and in that,
9
they would request payment for whatever amount they deem the
10
borrower eligible to be -- eligible for forgiveness.
11
And the lender would,
And then the
So, again, that could be up to the full loan amount
12
plus any accrued interest.
13
Q.
14
a PPP loan forgiveness, what, if anything, was the SBA's role
15
with respect to that loan?
16
A.
17
selected the loan for loan review, we would review it and make
18
sure the borrower was eligible, the loan amount was calculated
19
properly, they used the proceeds in accordance with the rules,
20
which meant, again, a minimum of 60 percent for payroll, and
21
then we would remit the payment to the lender.
22
Q.
23
ultimately were forgiven?
24
A.
I believe right now the percentage is close to 90 percent.
25
Q.
Ms. Zelaya, with respect to the forgiveness process, you've
After the SBA received a lender's recommendation regarding
We would either pay what the lender requested or, if we
Do you know approximately what percentage of PPP loans
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1
mentioned there was an evaluation of eligible payroll expenses.
2
What are some of the types of expenses that would be considered
3
eligible expenses under PPP?
4
A.
5
employees, and health benefits, medical benefits, family leave
6
and employment retirement benefits, all of those things were
7
eligible.
8
payroll costs, and it's typically all of those things.
9
Q.
And can you remind us what the goal and purpose was of PPP?
10
A.
Again, the purpose of the Paycheck Protection Program was
11
to protect the paychecks and salaries of these employees, to
12
keep them employed, and so they can in turn pay their bills.
The wages, commissions, tips that were paid to the
Set forth in the CARES Act, it defined eligible
13
MS. MURRAY:
May I have a moment please, your Honor?
14
THE COURT:
Of course.
15
Q.
Ms. Zelaya, you mentioned that the PPP program has now
16
terminated; is that correct?
17
A.
Correct.
18
Q.
And I think you also mentioned the amount of money that had
19
been spent in guaranteeing PPP loans; is that right?
20
A.
Yes.
21
Q.
Did there come a time when the money that the government
22
had set aside for purposes of paycheck protection ran out
23
essentially?
24
A.
25
and that money was disbursed between August 3 and August 4 --
Yes.
Originally, the CARES Act appropriated $349 billion,
SOUTHERN DISTRICT REPORTERS, P.C.
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I'm sorry, April 3 and April 14 of 2020.
2
MS. MURRAY:
Nothing further, your Honor.
3
THE COURT:
All right.
Thank you.
4
Any cross?
5
MR. BRILL:
No cross.
Thank you, your Honor.
6
THE COURT:
All right.
You are excused then.
7
you very much for being here.
8
THE WITNESS:
9
(Witness excused)
10
THE COURT:
11
Thank you.
Thank
Thank you.
Your next witness, Ms. Murray or
Mr. Felton.
12
13
MR. FELTON:
Your Honor, the government calls Josh
THE COURT:
Good afternoon, Mr. Sarver.
Sarver.
14
If you would
15
please stand here, and once you're comfortable, settled,
16
Ms. Dempsey will administer the oath.
17
(Witness sworn)
18
THE COURT:
All right.
Sir, and when you are
19
speaking, if you would please make sure the microphone is
20
pointed towards your mouth --
21
THE WITNESS:
22
THE COURT:
Okay.
-- so the jury seated over to our left and
23
our court reporter and all of us can hear you, please.
24
you.
25
167
Mr. Felton.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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Document 94 Filed 11/18/22
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JOSHUA SARVER,
2
called as a witness by the Government,
3
having been duly sworn, testified as follows:
4
DIRECT EXAMINATION
5
BY MR. FELTON:
6
Q.
Good afternoon, Mr. Sarver.
7
A.
Hello.
8
Q.
Let's talk a little bit about yourself.
9
employed?
10
A.
La Colombe Coffee.
11
Q.
At a particular branch?
12
A.
Yes.
13
Q.
In Manhattan?
14
A.
Yes.
15
Q.
How long have you worked there?
16
A.
About four years.
17
Q.
Do you have a title?
18
A.
I've been managing that cafe for four years, yeah.
19
Q.
What does that entail?
20
A.
You know, doing the schedule, managing the day-to-day,
21
putting out fires.
22
Q.
23
kind of thing you're talking about.
24
A.
25
day, things break, fixed -- today, fixed our brewer for
Where are you
It's the NoHo branch on Lafayette and Fourth.
When you say putting out fires, give us an example of the
Oh, you know, just the crises that emerge throughout the
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1
example.
2
Q.
Do any other people work at that branch of La Colombe?
3
A.
Yeah.
4
Q.
Did you have a position before you were the manager?
5
A.
Yeah.
6
Q.
Does the La Colombe branch you managed have any video
7
surveillance?
8
A.
Yes.
9
Q.
Can you describe that video surveillance system?
10
A.
We have six cameras situated various places in the cafe,
11
and it's called Eagle Eye.
12
Q.
13
of your job?
14
A.
Yeah.
15
Q.
How do you access that surveillance footage?
16
A.
Through the web portal.
17
Q.
Is that surveillance footage in the web portal stored on
18
the cloud?
19
A.
Yes.
20
Q.
Do you know what the retention period is of any of the
21
surveillance video footage?
22
A.
Two weeks.
23
Q.
With respect to financial payments for coffee and other
24
goods at the store, do you know if the La Colombe branch uses a
25
payment system?
I have 14 employees.
I was a barista there.
Do you generally have access to Eagle Eye footage as part
SOUTHERN DISTRICT REPORTERS, P.C.
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170
1
A.
Yes.
We use Square.
2
Q.
What is Square, if you know?
3
A.
It's also like a cloud-based payment system.
4
Q.
Between 2020 and 2021, how many sales registers did your
5
branch at La Colombe have?
6
A.
Two.
7
Q.
Do you have access to the branch's Square records as part
8
of your job?
9
A.
Yes.
10
Q.
Generally speaking, what sorts of information is reflected
11
in the Square records?
12
A.
13
information, you know, what was purchased.
14
you know, the time and date and stuff.
15
Q.
16
records?
17
A.
Whatever is attached to the credit card.
18
Q.
Did there come a time when you were asked to produce
19
certain records to law enforcement?
20
A.
Yes.
21
Q.
Approximately when was that?
22
A.
A little over a year ago.
23
Q.
What kinds of records did law enforcement request?
24
A.
I was given some credit card numbers, and so, you know, I
25
checked to see if those were in the system and, you know,
So the transaction information, the credit card
Usually a name and,
Do you know how a number is populated in the Square
SOUTHERN DISTRICT REPORTERS, P.C.
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looking for transactions that were attached to those credit
2
cards.
3
Q.
4
into the record responsive to law enforcement's request?
5
A.
I'm a little unclear on the question.
6
Q.
Let me rephrase.
171
Did you look for financial records as part of your inquiry
7
Did you look into La Colombe's financial records as
8
part of your work responding to the law enforcement request?
9
A.
Yes.
10
Q.
Did you look into video footage as part of your efforts to
11
respond to the law enforcement request?
12
A.
Yes.
13
Q.
Did you ultimately produce records?
14
A.
Yes.
15
Q.
Did you produce everything in stages or all at once?
16
A.
It was in stages.
17
Q.
Before your testimony here today, did you review the La
18
Colombe records that you had provided to law enforcement?
19
A.
Yes.
20
21
22
23
MR. FELTON:
Your Honor, may I approach the witness to
THE COURT:
Approach the bench first so I know what
show --
you're --
24
MR. FELTON:
It's a flash drive.
25
THE COURT:
All right.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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2
MR. FELTON:
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172
For the record, it's marked for
identification as Government Exhibit 24.
3
THE COURT:
Okay.
4
Q.
Mr. Sarver I've handed you what's been previously marked as
5
Government Exhibit 24 just for identification.
6
electronic versions of the files that you produced to law
7
enforcement which have been marked also for identification as
8
Government Exhibits 291 through 298.
9
It contains
First, do you recognize the flash drive, Government
10
Exhibit 24?
11
A.
Yes.
12
Q.
Did you review Government Exhibit 24 and its contents
13
before your testimony today?
14
A.
Yes.
15
Q.
How do you recognize Government Exhibit 24 as the flash
16
drive that you previously reviewed?
17
A.
I put the date and my initials on it.
18
Q.
Did you sign and date the -- or did you put your initials
19
on it and the date after you reviewed its contents?
20
A.
Yes.
21
Q.
When you reviewed the files saved on Government Exhibit 24,
22
did you recognize them as the same files that you had
23
previously provided to law enforcement?
24
A.
Yes.
25
Q.
Did those files marked for identification as Government
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1
Exhibits 291 through 298 consist of images, videos, and a
2
spreadsheet?
3
A.
Yes.
4
Q.
Were those records kept in the regular course of La
5
Colombe's business?
6
A.
Yes.
7
Q.
Is it the regular practice of La Colombe to make or keep
8
such records?
9
A.
Yeah.
10
Q.
Were they made at or near the dates that are reflected on
11
the record?
12
A.
Yes.
13
Q.
Were those records created by or based on information from
14
someone with knowledge of the transactions?
15
A.
Yes.
16
Q.
For preparation for court today did you confirm that all
17
these files contained on Government Exhibit 24 were retrieved
18
from La Colombe's records?
19
A.
Yes.
20
MR. FELTON:
Your Honor, the government offers into
21
evidence Government Exhibit 24, as well as its contents,
22
Government Exhibits 291 through 298.
23
THE COURT:
Mr. Brill.
24
MR. BRILL:
Your Honor, could I have a brief voir dire
25
on that?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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THE COURT:
At sidebar you mean?
2
MR. BRILL:
I'd like to voir dire the witness.
3
THE COURT:
You didn't say that.
4
MR. BRILL:
I'm sorry.
5
THE COURT:
Yes.
6
MR. BRILL:
Thank you.
174
Go ahead.
7
VOIR DIRE EXAMINATION
8
BY MR. BRILL:
9
Q.
Good afternoon, sir.
10
A.
Hi.
11
Q.
You said you have a security system called Eagle Eye?
12
A.
Yes.
13
Q.
And are you responsible for the maintenance of that system?
14
A.
No.
15
Q.
Is there an outside contractor that does that?
16
A.
Yes.
17
Q.
Around the time of the videos that are on the flash drive
18
that you have in front of you, when was the last time that you
19
compared -- withdrawn.
20
Are there date stamps on the videos on the flash
21
drive?
22
A.
Yeah, I believe so.
23
Q.
All right.
24
videos?
25
A.
When was the last time you looked at the
On the flash drive?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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175
1
Q.
Yes.
2
A.
This morning.
3
Q.
Okay.
4
looked at them?
5
A.
Yes.
6
Q.
Okay.
7
time -- well, do you have an individual recollection separate
8
from the videos of the events that are on those videos?
9
A.
No.
10
Q.
All right.
11
recorded, at any point up until the date of the last video, did
12
you compare the date stamps in the system to the day when the
13
video was recorded so that you could confirm that the video was
14
actually recorded on the day that the system stamped it?
15
And did you see date stamps on those videos when you
And when you looked at those videos prior to the
So prior to the date that those videos were
You follow what I'm asking?
16
A.
I'm not sure.
17
Q.
Okay.
18
Let me try again.
You said there was a date stamp on each video, right?
19
A.
Yeah.
20
Q.
Okay.
21
video that's on the card --
22
A.
Okay.
23
Q.
-- up to the last date of the video on the card, so in that
24
time frame, at any point did you confirm that the date stamp
25
that the system was putting on those videos was the actual date
And at some point prior to that date of the first
SOUTHERN DISTRICT REPORTERS, P.C.
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that that specific footage was taken?
2
A.
3
because it's -- you know, it's continuous footage, so I
4
wouldn't have to like specifically go to the date on the
5
footage and the time.
6
Q.
7
date that Eagle Eye has placed on the footage, right?
8
A.
Yeah, but it's a continuous stream of video.
9
Q.
Understood.
10
176
Well, the process of finding -- just finding those clips --
Right.
So you go to the date of the footage.
That's the
Did you at any point confirm that the date Eagle Eye
11
was putting on the footage was the actual date that the footage
12
was taken?
13
A.
I'm not sure how I would do that.
14
Q.
Okay.
15
16
17
18
MR. BRILL:
Your Honor, at this point I would maintain
an objection to the authenticity of the video records.
THE COURT:
You're not maintaining it.
You are
asserting it.
19
MR. BRILL:
I'm asserting it.
20
THE COURT:
All right.
21
(Continued next page)
Thank you, your Honor.
Let me see counsel at sidebar.
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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(At sidebar)
2
THE COURT:
3
4
Page 146 of 218
177
Mr. Felton, these appear to be routine
business records.
MR. FELTON:
The witness also -- I can proffer
5
additional information where the witness compared the financial
6
transactions from Square and they aligned with the video files.
7
8
THE COURT:
Well, you need to make a record of that.
You're free to make a record of that.
9
MR. BRILL:
If I could --
10
THE COURT:
Then I'll hear the objection again.
11
MR. BRILL:
Let me just give you a preview, though,
12
your Honor.
13
in to La Colombe almost every day.
14
you're going to hear testimony as part of this objection that
15
if he comes in every day, it's going to be extremely hard for
16
him to pinpoint which receipt matches up to which video,
17
because, like I said, he's there almost every day.
18
obviously that's the government's --
19
The witness will also testify that Mr. Ilori came
MR. FELTON:
And so I would submit that
But
In the terms of the reliability of time
20
stamping, one of the videos in particular occurs two minutes
21
after -- approximately two minutes after closing time.
22
conduct in the video where the shop is being closed down,
23
customers are escorted out --
24
THE COURT:
25
And the
Yes, but I think the question is is the
date accurate, and the question I have is is that material to
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what you're offering?
2
MR. FELTON:
3
4
5
6
Page 147 of 218
178
The date is material, your Honor, and
there is additional evidence that -THE COURT:
Then you need to lay a foundation with
respect to -- the date is the issue that's being raised.
MS. MURRAY:
Your Honor, if I may clarify, Mr. Brill's
7
objection -- so I understand Mr. Brill to be objecting to the
8
authenticity of the video files.
9
THE COURT:
10
Right, Mr. Brill?
11
MR. BRILL:
Yes, your Honor.
12
MS. MURRAY:
Right.
13
With respect to Mr. Brill's questions to this
14
particular witness, I understood him to be asking whether Eagle
15
Eye assigns a date to the video.
16
17
18
19
THE COURT:
Insofar as you're requesting the date.
We are happy to clarify that.
I think it's fair to say he assumed Eagle
Eye assigned a date and nobody objected.
MR. BRILL:
Your Honor, the videos that I have don't
appear to have any time stamp on them.
20
THE COURT:
Are we sure these have time stamps?
21
MS. MURRAY:
Your Honor, we were still in the process
22
of laying foundation when Mr. Brill called for a voir dire on
23
this particular point.
24
25
THE COURT:
Yes.
That's why I said you can continue
your questioning.
SOUTHERN DISTRICT REPORTERS, P.C.
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MS. MURRAY:
So we would ask to do that.
2
MR. FELTON:
Yes, your Honor.
3
THE COURT:
Thank you.
4
(Continued on next page)
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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(In open court)
2
THE COURT:
All right.
Page 149 of 218
Ladies and gentlemen, what we
3
just had is counsel for the defendant is allowed to ask -- he
4
asked to voir dire the witness, meaning he has some questions
5
that he wants to ask that may relate to an objection that he
6
wants to assert.
7
180
He's finished his voir dire.
He's asserted an
8
objection.
I'm not admitting the documents just yet.
9
who was questioning is going to resume his questioning.
10
All right.
Mr. Felton.
11
MR. FELTON:
Thank you, your Honor.
Counsel
12
BY MR. FELTON:
13
Q.
14
the financial records, and then I'm going to ask you about the
15
video records.
16
A.
Okay.
17
Q.
With respect to the financial records, can you describe how
18
you queried the La Colombe system to find information?
19
A.
In this case, entered in the credit card numbers.
20
Q.
And what did you see in response?
21
A.
They came up.
22
Q.
And did they list a date and time?
23
A.
Yes.
24
Q.
With respect to the video files, can you describe how you
25
generated the video files that you provided to law enforcement?
Mr. Sarver, I'm going to ask you a couple questions about
Okay?
There was a list of transactions.
SOUTHERN DISTRICT REPORTERS, P.C.
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181
1
A.
So there's a block of -- a video stream, and you can
2
type in the time.
3
transactions and kind of carved out 30 seconds to a minute
4
around it.
5
Q.
6
the credit card transactions that you collected?
7
A.
Yeah.
8
Q.
Once you identified the relevant segments and clipped the
9
video files, did the Eagle Eye system generate new files of the
10
clips?
11
A.
Yes.
12
Q.
Are those the files you downloaded and provided to law
13
enforcement?
14
A.
Yes.
15
Q.
Did those file names contain the date and time of the video
16
surveillance footage?
17
A.
Yes.
18
Q.
And did that date and time align with the financial records
19
indicating the date and time of certain transactions?
20
A.
Yes.
21
Q.
Did your observations of the video files with respect to
22
the time of the videos appear consistent with the time stamps
23
on the file names of the videos?
24
A.
Yes.
25
Q.
Did you compare the file names of the files you produced to
I typed in the time that was on the
Did those time stamps match with the general time stamps of
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1
the government with the file names of Government Exhibits 293
2
to 298, which are the video files?
3
A.
Yes.
4
Q.
Did the file names that you provided include the date and
5
time?
6
A.
Yes.
7
Q.
Did the government exhibits, and by those I mean Government
8
Exhibits 293 through 298 include --
9
THE COURT:
291, right?
10
MR. FELTON:
Your Honor, 291 and 292 are images and a
11
spreadsheet.
12
THE COURT:
I see.
13
MR. FELTON:
I'm trying to focus the witness on video
THE COURT:
Okay.
14
files.
15
16
Q.
17
293 to 298 contain the identifying date and time next to the
18
government exhibit number.
19
A.
Yes.
20
Q.
And they match with the date and time of the files you
21
produced to the government?
22
A.
Yes.
23
Q.
And that date and time comes straight from the Eagle Eye
24
video system?
25
A.
And I'm asking if the video files in Government Exhibits
Correct.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
Document 94 Filed 11/18/22
Sarver - Direct
Page 152 of 218
1
Q.
Which otherwise appears reliable to you?
2
A.
Yes.
3
Q.
Were there blocks of time missing when you searched the
4
Eagle Eye system for video footage?
5
A.
No.
6
Q.
Did it appear reliable to you?
7
A.
Yeah.
8
MR. FELTON:
Your Honor, the government moves to admit
9
Government Exhibits 291 to 298, as well as the file -- the
10
drive, sorry, Government Exhibit 24.
11
THE COURT:
Containing those --
12
MR. FELTON:
Containing those exhibits.
13
MR. BRILL:
I have another voir dire of the witness,
14
your Honor.
15
THE COURT:
Sure.
16
MR. BRILL:
Thank you.
17
VOIR DIRE EXAMINATION
18
BY MR. BRILL:
19
Q.
20
receive a request about the use of a specific credit card.
21
That's the first step, right?
22
A.
All right.
183
So, if I can understand this correctly, you
Uh-huh.
23
THE COURT:
24
THE WITNESS:
25
THE COURT:
You have to say yes or no, sir.
Yes.
I'm sorry.
That's all right.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
Document 94 Filed 11/18/22
Sarver - Direct
Page 153 of 218
184
1
Q.
2
the Square system, and you get a - it spits out a list of the
3
transactions, correct?
4
A.
Correct.
5
Q.
Okay.
6
video side, right?
7
A.
Correct.
8
Q.
So you can only -- and the original request, would it be
9
accurate to say, comes in at approximately September 22, 2021?
10
A.
I'm honestly not sure of the date.
11
Q.
Okay.
12
that would mean you could go back to about September 8,
13
correct?
14
15
And you take that credit card number, and you put it into
The system only goes back about two weeks on the
Assuming that, for the sake of just this discussion,
MR. FELTON:
Your Honor, objection.
Calls for
speculation.
16
THE COURT:
Sustained.
17
Q.
18
fair to say that there are other individuals engaging in
19
transactions at the same cash register that Mr. Ilori was
20
engaging in transactions?
When you ran these dates against the video, would it be
21
THE COURT:
Do you understand the question?
22
MS. MURRAY:
Objection, Your Honor.
23
information not in evidence.
24
THE COURT:
25
All right.
Calls for
It's not sustained on that
ground, but the objection -- the question is objectionable.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
1
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Page 154 of 218
185
One other thing, who's handling this witness?
2
MS. MURRAY:
Apologies.
3
THE COURT:
All right.
4
MR. BRILL:
I will rephrase.
5
THE COURT:
Thank you.
Thank you, your Honor.
6
Q.
When reviewing the videos, were there other individuals --
7
how many individuals in each video appeared, if you recall?
8
MR. FELTON:
Objection, Your Honor.
9
THE COURT:
Sustained.
10
Q.
11
individual engaging in transactions at the -- on the -- at the
12
time that each video was extracted?
Do you know how many -- if there was more than one
13
MR. FELTON:
Objection.
14
THE COURT:
Sustained.
15
MR. BRILL:
Just one moment, your Honor.
16
THE COURT:
Sure.
17
MR. BRILL:
Nothing further at this time.
18
THE COURT:
All right.
19
MR. FELTON:
Your Honor, the government offers the
Mr. Felton.
20
exhibits we've been discussing, Government Exhibit 24, which is
21
the drive, and Government Exhibits 291 through 298.
22
MR. BRILL:
Maintain our prior objection, Your Honor.
23
THE COURT:
All right.
24
The exhibits are received.
25
The objection is overruled.
(Government Exhibits 24 and 291 through 298 received
SOUTHERN DISTRICT REPORTERS, P.C.
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Case 1:21-cr-00746-MKV
MAQDILO5
1
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Page 155 of 218
186
in evidence)
2
MR. FELTON:
Ms. Loftus, I'd like you to publish
3
Government Exhibit 291 for the jury, please.
4
BY MR. FELTON:
5
Q.
6
Colombe records we've been discussing.
Mr. Sarver, I'm going to walk through a couple of the La
7
Do you recognize this document, Mr. Sarver?
8
A.
Yes.
9
Q.
What is it?
10
A.
That is a receipt from Square.
11
Q.
The top like -- the payment, what is that?
12
A.
So that was the amount charged to the credit card.
13
Q.
What's the line beneath that?
14
A.
That is the date and time of the transaction.
15
Q.
The collected at entry, what does that refer to in your
16
experience?
17
A.
18
that's the neighborhood.
19
Q.
And that's in Manhattan?
20
A.
Yes.
21
Q.
The source information, what is that?
22
A.
It's the register.
23
Q.
Is that referring to the cash register --
24
A.
Register, yeah.
25
Q.
-- used to pay?
What is that?
201 is my cafe number, and, you know, New York City.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
NoHo,
Case 1:21-cr-00746-MKV
MAQDILO5
1
A.
Document 94 Filed 11/18/22
Sarver - Direct
Page 156 of 218
187
Yeah.
2
THE COURT:
Okay.
Can I just caution you, sir, let
3
Mr. Felton finish the question and then give an answer, because
4
we have a court reporter who's taking down everything people
5
are saying.
6
want to have a clear record here.
7
And you're stepping all over each other, and we
MR. FELTON:
Thank you, your Honor.
I apologize.
8
Q.
The paid by wrote -- do you see that on Government Exhibit
9
291?
10
A.
Yes.
11
Q.
What does that say?
12
A.
Jonathan Herttua.
13
Q.
And to your knowledge how is that populated?
14
A.
That's pulled from the credit card.
15
Q.
What is the order in this record?
16
THE COURT:
Are you asking what the person bought?
17
MR. FELTON:
What the person bought.
18
A.
PB draft.
That's a pure black draft.
That's a cold brew
19
with an extra shot, an extra single.
20
Q.
The extra single is an extra shot of what?
21
A.
Expresso.
22
Q.
And how is this order paid for?
23
A.
With the credit card listed at the bottom.
24
Q.
What were the last four digits of that credit card?
25
A.
5953.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
Document 94 Filed 11/18/22
Sarver - Direct
Page 157 of 218
1
Q.
What brand of credit card?
2
A.
Mastercard.
3
Q.
And what is the name of the credit card holder?
4
A.
Jonathan A. Herttua.
5
MR. FELTON:
188
Ms. Loftus, I'd like to turn to page 7 of
6
the same exhibit.
7
Q.
What is the date of this record?
8
A.
September 22.
9
Q.
What time?
10
A.
9:57 AM.
11
Q.
What store?
12
A.
201, New York City, NoHo.
13
Q.
What was ordered?
14
A.
PB draft, with an extra shot.
15
Q.
How was it paid for?
16
A.
With a Mastercard.
17
Q.
What are the last four digits of that Mastercard?
18
A.
5953.
19
Q.
What is the customer name?
20
A.
Jonathan A. Herttua.
21
Q.
Is that the same credit card as the previous page we showed
22
you?
23
A.
Yes.
24
Q.
I'd now like to look at one of the video files you
25
provided.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
1
2
THE COURT:
you, sir.
Document 94 Filed 11/18/22
Sarver - Direct
This is Exhibit 291.
THE WITNESS:
4
THE COURT:
Yes, your Honor.
Mr. Brill, was your objection to this as
well, to 291?
6
MR. BRILL:
To the -- no.
7
THE COURT:
All right.
8
189
Before you do that, I have a question for
3
5
Page 158 of 218
No, your Honor.
291 was admitted without
objection.
9
You were objecting to what then?
10
MR. BRILL:
I was objecting to --
11
THE COURT:
To the videos, right?
12
MR. BRILL:
I was objecting to the videos based on our
13
conversation at the bench.
14
THE COURT:
15
Exhibits 293 through 298 are admitted over
objection, but the others are unobjected to.
16
MR. BRILL:
Thank you, your Honor.
17
THE COURT:
That's just really for the record.
18
don't need to be concerned.
19
MR. FELTON:
You
Ms. Loftus, can you publish Government
20
Exhibit 293.
And, Ms. Loftus, before you play it, I'd like you
21
to just pull up the exhibit on the screen so that Mr. Sarver
22
can see the file name.
23
Q.
24
293?
25
A.
Mr. Sarver, do you see the file name for Government Exhibit
Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
Document 94 Filed 11/18/22
Sarver - Direct
Page 159 of 218
190
1
Q.
Can you explain to the jury the date and time of this
2
transaction as you understand it?
3
A.
So the 9th of September, 2021, 17:10, so 5:10 p.m.
4
Q.
And is that date and time -- does that come from the video
5
system?
6
A.
Yeah.
7
Q.
You didn't manually enter that?
8
A.
No.
9
Q.
When you clipped the video file, that automatically came
10
out from the video system?
11
A.
Yeah.
12
13
That's --
I just sent it as is.
MR. FELTON:
Ms. Loftus, could you please play
Government Exhibit 293 for the jury, please?
14
(Video played)
15
MR. FELTON:
And, Ms. Loftus, could you please pause
16
the video?
17
Q.
18
293?
19
A.
Yes.
20
Q.
What is it?
21
A.
That's the NoHo cafe that I manage.
22
Q.
Do you recognize any customers in the video?
23
A.
Yeah.
24
Q.
Who -- could you identify an article of clothing the man at
25
the register is wearing?
First, do you recognize the store of Government Exhibit
Yes.
The man at the register.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
Document 94 Filed 11/18/22
Sarver - Direct
Page 160 of 218
191
1
A.
White t-shirt.
2
Q.
How do you recognize that individual?
3
A.
He was a regular.
4
Q.
Did you ever know him by any name?
5
A.
No.
6
Q.
Did you ever speak with him?
7
A.
A little bit here and there, small talk.
8
Q.
What did you discuss?
9
A.
I can't really be sure, you know.
10
talk cafe stuff.
11
Q.
Do you remember anything about what he would usually order?
12
A.
Yeah.
13
shot, and, you know, simple syrup.
14
15
He came in often.
The weather.
Just small
You know, he always got the cold brew with the extra
MR. FELTON:
Ms. Loftus, could you please play the
rest of the video?
16
(Video played)
17
Q.
18
question at the end.
Mr. Sarver, please watch the video, and I'll ask you a
19
Mr. Sarver, did you observe the person at the register
20
pay for an order during the video clip?
21
A.
Yes.
22
Q.
And is that payment what ultimately gets reflected in the
23
Square records that you discussed?
24
A.
25
Correct.
MR. FELTON:
Ms. Loftus, could you please pull up
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
Document 94 Filed 11/18/22
Sarver - Direct
Page 161 of 218
1
Government Exhibit 296, which is another video file in
2
evidence.
3
Q.
4
296?
5
A.
September 20, 2021, 6:32 p.m.
6
Q.
What, if any, is the suggestion of a 6:32 time of the
7
video?
8
A.
And before -- sorry.
Mr. Sarver, what is the date and time of Government Exhibit
That's I mean two minutes after we close.
9
10
192
MR. FELTON:
Ms. Loftus, could you please play the
video?
11
(Video played)
12
MR. FELTON:
Can we pause the video, please?
13
Q.
14
with what the store would look like during closing time?
15
A.
Yes.
16
Q.
What makes you say that?
17
A.
So the guy in the hat there is, you know, running water
18
through the draft system, which you only do after we're closed.
19
The person in the back is soaking the expresso filters, which
20
is also after we close.
21
22
MR. FELTON:
25
You know, the cafe is pretty empty.
Ms. Loftus, can you play the rest of the
video, please.
23
24
Based on what you've seen so far, is this video consistent
(Video played)
Q.
Can we just pause again here?
Do you recognize the individual at the cash register,
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
Document 94 Filed 11/18/22
Sarver - Direct
Page 162 of 218
1
the customer?
2
A.
Yes.
3
Q.
Is that the same customer you discussed earlier?
4
A.
Yes.
5
Q.
In the paused clip right now, what, if anything, is that
6
individual doing?
7
A.
Paying for his coffee.
8
Q.
What makes you say that?
9
A.
He inserted the card into the screen, and it prompts you,
10
you have the option of tipping.
11
MR. FELTON:
12
video, please?
13
193
Ms. Loftus, can you play the rest of the
Thank you.
(Video played)
14
Q.
15
Government Exhibit 296, how if at all does your earlier
16
testimony about the timing of the video clip change?
17
A.
It doesn't.
18
Q.
Did anything else you observed strike you as consistent or
19
inconsistent with it being around closing time?
20
A.
21
they're taking milks away from the bar.
22
Q.
Does that appear to be consistent with closing time?
23
A.
Yeah.
24
25
Mr. Sarver, having watched the rest of this exhibit,
Yeah, the rest of the people left the cafe, and, you know,
MR. FELTON:
Ms. Loftus, could you please play
Government Exhibit 298.
And before you click it --
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
Document 94 Filed 11/18/22
Sarver - Direct
Page 163 of 218
1
Q.
Mr. Sarver, what is the date and time of this video?
2
A.
September 22, 2021, 9:56 a.m.
3
Q.
Thank you.
4
MR. FELTON:
5
(Video played)
6
MR. FELTON:
194
Ms. Loftus, please play that video.
Can we just pause here, Ms. Loftus.
7
Q.
Mr. Sarver, the customer we've discussed from the previous
8
two video clips, do you recognize the individual in this video?
9
A.
Yes.
10
Q.
What does that individual appear to be wearing?
11
A.
Like a light gray t-shirt.
12
Q.
Where in the video is he, if you could identify him for the
13
jury, please?
14
A.
Second line.
15
Q.
And what does he appear to be doing so far?
16
A.
Looking out the window.
17
Q.
If you know, do you have any knowledge about what he might
18
be doing?
19
A.
20
like ticketing the vehicle parked.
21
Q.
Do you know what kind of car he drove?
22
A.
I believe it was like a SUV.
23
Q.
What makes you say that?
24
A.
Just, you know, he -- that's just what I remember him
25
parking out there.
He would drive and park, so watching for a police officer
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
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Sarver - Direct
Page 164 of 218
1
Q.
2
the manager of the store?
3
A.
Yeah.
4
Q.
And you mention looking outside at the car.
5
be looking at?
6
A.
7
gotten a parking ticket out there before.
8
Q.
What makes you say that?
9
A.
We probably had a conversation about it at some point.
10
Q.
Who had this conversation?
11
A.
He and I.
You personally have observed that car in your dealings as
I mean, I would think just for the car.
12
13
MR. FELTON:
What would he
I believe he had
Ms. Loftus, could you please play the
rest of the video.
14
(Video played)
15
MR. FELTON:
Ms. Loftus, can you pause, please?
16
Q.
17
customer's doing in the video?
18
A.
He's paying for his drink.
19
Q.
What makes you say that?
20
A.
He's interacting with the screen, you know, dipped his
21
card, pressing the buttons on the screen afterwards.
22
Q.
23
Square records?
24
A.
25
195
What, if anything, did you observe about what the
And would the dipping of his card then be reflected in the
Yes.
MR. FELTON:
Ms. Loftus, please continue playing the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
1
Document 94 Filed 11/18/22
Sarver - Cross
Page 165 of 218
196
video.
2
(Video played)
3
Q.
Mr. Sarver, do you remember discussing the customer's car?
4
A.
With the customer?
5
Q.
Or with -- on direct examination earlier today.
6
A.
Oh, yes.
7
Q.
Do you recall what color that car was?
8
A.
I believe it was white or, you know, close to that.
9
MR. FELTON:
No further questions, your Honor.
10
THE COURT:
Mr. Brill.
11
MR. BRILL:
Thank you, your Honor.
12
CROSS-EXAMINATION
13
BY MR. BRILL:
14
Q.
15
the list of individual orders --
Just a couple.
Mr. Sarver, with respect to Government's Exhibit 291, just
16
MR. BRILL:
Can we just pull that up, please?
17
THE COURT:
You mean the receipts we looked at
19
MR. BRILL:
Yes.
20
THE COURT:
Okay.
18
earlier?
21
Q.
When was the last time you looked through these?
22
A.
These specific receipts?
23
Q.
Yeah.
24
A.
This morning.
25
Q.
Okay.
Would it be fair to say that there were non-cold
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
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Sarver - Cross
Page 166 of 218
197
1
brew drafts with an extra single within this group of receipts?
2
A.
I'm honestly not sure.
3
Q.
Okay.
4
There you go.
5
A.
Okay.
6
Q.
Would that be fair?
7
A.
Yeah.
8
Q.
Okay.
9
A.
Yes.
10
Q.
Okay.
Let's just look at September 20 as one example.
So there's a cappuccino order at that point?
And that would be the closing time video, right?
11
MR. BRILL:
Can we just pull up 296 and leave it right
12
at the beginning of the video.
13
please.
14
Q.
15
purchasing process works.
16
employee behind the counter has the cash drawer open?
17
A.
Yes.
18
Q.
When you make a debit or credit card purchase, does the
19
cash drawer open during that process?
20
A.
No.
21
Q.
That's his process at the end of the shift I guess?
22
A.
Yeah.
23
Q.
The terminal that's facing the camera, that's right above
24
the employee's head near his hat, you see what I'm talking
25
about?
Just pause it right there,
So I'd just like to get a better idea from you how the
Would it be fair to say that the
He was counting the register.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
Document 94 Filed 11/18/22
Sarver - Cross
Page 167 of 218
198
1
A.
Yes.
2
Q.
That's the cash register terminal?
3
A.
Yes.
4
Q.
Okay.
5
that's the -- I guess the credit card terminal for the
6
customers, right?
7
A.
Yes.
8
Q.
Okay.
9
Where does that go on that little terminal?
10
A.
So sort of near the top there's a place to do that in.
11
Q.
So you put it into the top of the unit, to the side, do you
12
recall?
13
A.
So directly in -- if this were the screen, I'd be doing it.
14
Q.
So basically head on to the screen, push it in?
15
A.
Yeah.
16
Q.
Okay.
17
wanted to clarify that.
And the little thing facing the -- right above that,
How do you -- where do you swipe or insert a card?
And then -- okay.
That's what -- I just
Thank you.
18
Give me one second.
19
MR. BRILL:
20
All right.
Can we just run this forward for a few
seconds, please?
21
(Video played)
22
Q.
Just taking a look at that screen where the individual is
23
using his finger on it, what process would that be based upon
24
your understanding of how the system works?
25
A.
I'm not sure I understand the question.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQDILO5
1
Q.
Yes.
2
Document 94 Filed 11/18/22
SARVER - REDIRECT
Page 168 of 218
199
I'll rephrase.
MR. BRILL:
We can pause it.
Thank you.
3
Q.
4
the transaction was dipping a card based on what you saw?
5
A.
Yes.
6
Q.
And what happens after that in that system, in that screen?
7
What does a customer do at that point?
8
A.
9
You're prompted to tip.
10
Q.
11
they're given?
12
A.
Yes.
13
Q.
All right.
14
would be in a separate receipt?
15
A.
Same receipt.
16
Q.
All right.
Did it appear to you that the individual who just completed
You're prompted. It might ask you if you want a receipt.
Okay.
And do the tips appear separately on the receipt if
And those would be on the same receipt or those
Thank you.
I have nothing further.
17
THE COURT:
Redirect?
18
MR. FELTON:
Yes, your Honor.
19
REDIRECT EXAMINATION
20
BY MR. FELTON:
21
Q.
22
regular?
23
A.
Yes.
24
Q.
Do you recognize that person in this courtroom today?
25
A.
Yes.
Mr. Sarver, was the customer in those video clips a
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Q.
2
clothing they're wearing?
Page 169 of 218
200
Could you identify that individual with an article of
3
THE COURT:
Why don't you tell us where he's sitting.
4
MR. FELTON:
Fair enough, your Honor.
5
A.
Next to the gentleman who was questioning me earlier.
6
THE COURT:
7
THE WITNESS:
8
Q.
Next to Mr. Brill?
Correct.
No further questions.
9
THE COURT:
Anything else, Mr. Brill?
10
MR. BRILL:
No.
11
THE COURT:
All right.
12
coming in.
13
Thank you.
Thank you, your Honor.
Sir, thank you very much for
We appreciate your helping us with this trial.
14
(Witness excused)
15
THE COURT:
Government's next witness.
16
MS. MURRAY:
Yes, your Honor.
17
Special Agent Harry Lidsky.
18
THE COURT:
19
before we begin --
The government calls
I think we should take the afternoon break
20
MS. MURRAY:
Okay.
21
THE COURT:
-- the special agent's testimony.
22
All right.
We'll take our afternoon break now.
23
I'm sorry.
I shouldn't have dragged you in.
24
25
I
apologize.
So if we can keep it to about ten minutes, that would
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be great.
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Page 170 of 218
All right?
2
(Jury not present)
3
(Continued on next page)
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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22
23
24
25
THE COURT:
I need one moment, please.
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All right.
Please just be seated for one moment.
2
Mr. Brill, I just want to confirm on the record -- you
3
can stay.
4
I do have a response back and the person in the -- our legal
5
contact is looking into the issue that we talked about.
6
did say she thought sandwiches came over, but that they are
7
generally the type that you're telling me Mr. Ilori has gotten.
8
But that she will confirm with his return in the evening and
9
get back to me.
We're not talking about anything testimonial -- that
She
Okay.
10
MR. BRILL:
Thank you.
11
THE COURT:
All right.
12
Anything else that we should talk about.
13
MS. MURRAY:
Thank you.
Your Honor, for Special Agent Lidsky, we
14
will have both physical exhibits similar to the prior witness.
15
These will consist of physical evidence, and we have marked
16
those for identification.
17
then we will ask to approach the witness.
18
We'll show them to Mr. Brill, and
In addition, we do have a witness binder that contains
19
a subset of already marked government exhibits.
Just for the
20
sake of efficiency, we're going to have that in front of Agent
21
Lidsky so he can flip through and authenticate, and then we
22
will seek to move exhibits in in groups.
23
THE COURT:
Do you have a binder for me and Mr. Brill?
24
MS. MURRAY:
It is a subset of the exhibits that are
25
in the Court's exhibit binder, so we did not create three
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THE COURT:
So I have to go through these as you're
MS. MURRAY:
Your Honor, we're happy instead to pull
going --
4
5
the document up on -- exhibit up on the screen and have the
6
witness and Mr. Brill look at them that way.
7
8
THE COURT:
Let's see.
Do it the way you propose and
see how it goes.
9
10
Somebody should retrieve that flash drive and maintain
custody of it.
11
MR. FELTON:
Will do.
12
THE COURT:
Anything further, Mr. Brill?
13
MR. BRILL:
No, your Honor.
14
THE COURT:
All right.
15
minutes at this point.
(Recess taken.)
17
THE COURT:
18
bring the jurors in.
19
Thank you.
I'll see you soon in about 8
Thank you.
16
20
203
separate exhibit binders.
2
3
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All right.
You may be seated, and we'll
Sir, would you please stand up here on the witness
stand.
21
THE WITNESS:
22
THE COURT:
23
(Continued on next page)
Sure.
Thanks.
24
25
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(Jury present)
2
THE COURT:
3
Good afternoon.
All right.
Page 173 of 218
204
Please be seated, everyone.
Ms. Dempsey, would you swear the
4
witness who has been called?
5
HARRY LIDSKY,
6
called as a witness by the Government,
7
having been duly sworn, testified as follows:
8
DIRECT EXAMINATION
9
BY MS. MURRAY:
10
Q.
Good afternoon, Special Agent Lidsky.
11
A.
Good afternoon.
12
Q.
Where do you work?
13
A.
At the Department of Justice Office of the Inspector
14
General.
15
Q.
Is that also referred to as DOJ OIG?
16
A.
It is.
17
Q.
What is DOJ OIG?
18
A.
The Inspector General's Office is -- DOJ's in particular
19
mission is to combat misconduct, waste, fraud and abuse, mostly
20
conducted by employees of the department itself, but can also
21
extend to contractors or outside entities affecting the
22
department's business as well.
23
Q.
How long have you been with DOJ OIG?
24
A.
Twelve years.
25
Q.
What is your title?
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1
A.
I am now an assistant special agent in charge.
2
Q.
What are your duties and responsibilities as an assistant
3
special agent in charge?
4
A.
5
allegations of misconduct, waste, fraud, abuse.
6
Q.
7
any cyber investigations?
8
A.
I have.
9
Q.
And can you describe what a cyber investigation is?
10
A.
Our purview generally revolves around misconduct
11
allegations or criminal investigations that centralize with
12
digital devices, so if the -- if a crime is committed in the
13
cyber sphere, email is a heavy component, or a phone is used or
14
a computer is used to facilitate the crime, that's something
15
that would probably fall into our office's responsibility.
16
Q.
And where is your office located?
17
A.
I'm located in Arlington, Virginia.
18
Q.
How many years have you spent working in law enforcement?
19
A.
Nineteen and a half total.
20
Q.
Over that time, approximately how many investigations have
21
you been involved in?
22
A.
Hundreds of investigations.
23
Q.
Did there come a time when you became involved in the
24
investigation into COVID-19 relief fraud?
25
A.
I oversee a team of six special agents who investigate
In connection with your work at DOJ OIG, have you conducted
I am assigned to the cyber investigations office.
Yes.
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1
Q.
Generally speaking, what is COVID-19 relief fraud?
2
A.
Fraud associated with the CARES Act and funds that were
3
made available as part of the COVID-19 pandemic, mostly in the
4
form of PPP, Paycheck Protection Program loans, and EIDL,
5
Employment -- or Economic Injury Disaster Loan I think, which
6
in my understanding is not specific to COVID-19 or unique to it
7
but was applied because of the -- of the pandemic and the
8
resulting economy issues.
9
Q.
10
particular become involved in a COVID-19 fraud related
11
investigation?
12
A.
13
Administration OIG -- the OIG community sort of works together
14
in a lot of overlapping areas.
15
with the amount of pandemic relief fraud investigations that
16
they -- that just started raining down I guess about a year
17
after the PPP loans began going out.
18
in investigating these types of fraud allegations from all of
19
the other OIGs and even extending out beyond the inspector
20
general community.
21
Now, in light of your work at DOJ OIG, how did you in
I believe it was early 2021.
The Small Business
The SBA OIG became overwhelmed
They requested assistance
So based on their request, the Department of Justice
22
Office of the Inspector General volunteered our time, our
23
agents to help out and assist them with some of their
24
investigations.
25
take on a few as well.
And my office in particular volunteered to
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1
Q.
2
this trial, when did you first become involved in this
3
investigation?
4
A.
This one started in July of 2021.
5
Q.
And can you describe for us how this investigation began?
6
A.
We received a lead from -- there was an intermediary office
7
that was stood up to sort of handout, for lack of a better
8
term, the investigative leads that SBA needed -- wanted
9
disseminated to the participating agencies.
10
the PRAC, the Pandemic Response Accountability Committee, PRAC.
11
So focusing your attention on the investigation involved in
So I was contacted.
And it's known as
Once we volunteered to take on a
12
few cases, in July of 2021, I was contacted by the PRAC, and
13
they provided us a lead, which amounts to just a summary of the
14
facts at hand that they believed there might be fraud
15
associated with a particular loan that was identified within
16
the information they provided.
17
Q.
18
detail, but before we get there, did you end up arresting
19
anyone in connection with this investigation?
20
A.
I did.
21
Q.
Who did you arrest?
22
A.
Adedayo Ilori and Chris Recamier.
23
Q.
Do you see anyone in the courtroom today that you arrested
24
in the course of this investigation?
25
A.
And we're going to talk about this investigation in some
I arrested two people.
I do.
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1
Q.
Can you identify that person by where he or she is sitting?
2
A.
I recognize Mr. Ilori sitting to Mr. Brill's left.
3
4
MS. MURRAY:
Let the record reflect that Special Agent
Lidsky has identified the defendant, Adedayo Ilori.
5
Ms. Loftus, can you just show for the witness, the
6
Court, and the parties what's been marked for identification as
7
Government Exhibit 50 alongside what's been marked for
8
identification as Government's Exhibit 51.
9
Q.
10
screen in front of you?
11
A.
Special Agent Lidsky, do you have those two files on the
I do.
12
THE COURT:
Excuse me just a second.
13
Mr. Brill, you have them, right?
14
MR. BRILL:
Yes, your Honor.
15
THE COURT:
Thank you.
16
Q.
17
Government Exhibits 50 and 51?
18
A.
I do.
19
Q.
Are those fair --
20
Go ahead.
Do you recognize what are marked for identification as
THE COURT:
You're not supposed to have them, ladies
21
and gentlemen, just yet.
She's asking the witness so he can do
22
what's called authenticating them.
23
Q.
24
individuals you arrested in connection with this investigation?
25
A.
Are those fair and accurate representations of the
They are.
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MS. MURRAY:
2
Government Exhibits 50 and 51.
3
THE COURT:
Mr. Brill?
4
MR. BRILL:
No objection.
5
THE COURT:
They'll be received into evidence.
6
(Government Exhibits 50 and 51 received in evidence)
7
THE COURT:
Now you may publish them to the jury.
8
MS. MURRAY:
Thank you.
9
Ms. Loftus, can you publish those to the jury?
10
THE COURT:
Thank you, everyone, for your attention.
11
MS. MURRAY:
Is the jury able to see those now?
12
JURORS:
209
Your Honor, the government offers
(Nodding)
13
Q.
Special Agent Lidsky, starting with Exhibit 50, which is on
14
the left, who is depicted?
15
A.
Adedayo Ilori.
16
Q.
And looking at Exhibit 51 on the right, who is in
17
Government Exhibit 51?
18
A.
Chris Recamier.
19
Q.
Thank you.
20
MS. MURRAY:
Ms. Loftus, you can take those down.
21
I'd like to turn now to the loan application that
22
initiated this investigation.
Ms. Loftus, can you publish what
23
is in evidence as Government Exhibit 155.
24
Q.
Special Agent Lidsky, do you recognize this document?
25
A.
I do.
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1
Q.
What is it?
2
A.
This is a copy of a Paycheck Protection Program lender
3
application.
4
MS. MURRAY:
210
Ms. Loftus, if you could zoom in on
5
sections A and B of this document for now.
6
Q.
7
application?
8
A.
Capital One Bank.
9
Q.
And what is the name of the business applying for this
10
loan?
11
A.
BRS Consulting Corp.
12
Q.
Who is purported to be the person applying for the loan on
13
behalf of BRS Consulting Corp?
14
A.
Jonathan Herttua.
15
Q.
And what is the contact number or phone number that is
16
provided for Jonathan Herttua on this document?
17
A.
646-575-0642.
18
Q.
And in looking a few lines above that, do you see a field
19
that is labeled "number of employees?"
20
A.
I do.
21
Q.
How many employees are listed on this document for BRS
22
Consulting Corp?
23
A.
24
25
Special Agent Lidsky, what lender received this
Seventy.
MS. MURRAY:
And, Ms. Loftus, if you could please zoom
out and zoom in for the next section that includes the loan
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amount that's requested.
2
Q.
3
Consulting Corp application request?
4
A.
Page 180 of 218
211
Special Agent Lidsky, how much in funds did this BRS
$531,218.
5
MS. MURRAY:
Ms. Loftus, if you could please now go to
6
page 14 of this exhibit, and if you could zoom in on the bottom
7
half, personal information.
8
Q.
9
the personal contact for this loan application?
10
A.
Jonathan Herttua.
11
Q.
What is listed as the title for Mr. Herttua at BRS
12
Consulting Corp?
13
A.
CEO.
14
Q.
And looking at the mobile phone contact information, is
15
that the same number we just saw on page 1 of this application?
16
A.
It is.
17
Q.
A number ending in 0642?
18
A.
That's correct.
19
Q.
Now, looking at the payroll calculation portion of this
20
loan document, can you read for us the total monthly payroll
21
from January 1 to February 29 that's listed?
22
A.
$557,198.42.
23
Q.
Thank you.
Special Agent Lidsky, looking here, again, who is listed as
24
25
MS. MURRAY:
Thank you, Ms. Loftus.
You can take that
down.
SOUTHERN DISTRICT REPORTERS, P.C.
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1
Q.
2
BRS Consulting loan was approved?
3
A.
It was.
4
Q.
How do you know that?
5
A.
I received -- well, part of the reason -- part of the
6
original lead, investigative lead that was provided to us
7
included the fact that the loan had been funded, had been
8
disbursed, and that questionable transactional activity had
9
been observed subsequent to the loan being funded.
10
212
Now, Special Agent Lidsky, do you know if this loan, this
In addition, I eventually got paperwork from the SBA
11
which included a certification of funding.
12
Q.
13
investigation, after this BRS Consulting PPP loan was referred
14
to you, what, if anything, did you do next?
15
A.
16
assumption that there might be fraudulent activity associated
17
with the funds that had been disbursed.
18
two-fold.
19
been committed, whether or not -- we don't just assume because
20
of a lead that a crime has been committed.
21
there is suspicious activity associated with the funds, and
22
then we aim to find out who did it, who's behind it.
23
Q.
24
submitted by purportedly Jonathan Herttua, what investigative
25
steps did you take to begin investigating the applicant who had
So, again, focusing on the initiation of your
The first part was to determine -- to operate on the
The objective became
Number one, confirming whether or not a crime had
So we confirm that
So with respect to this application we just looked at
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1
submitted this request?
2
A.
3
the application of the loan, Jonathan Herttua, looking into him
4
and his background, seeing what I could find.
5
Q.
And what, if anything, did you find?
6
A.
I found inconsistencies between what I was able to find on
7
who I call the real Jonathan Herttua, and some of the
8
information that was listed on the bank application or the loan
9
application.
10
Q.
11
observed when you began researching Mr. Herttua?
12
A.
13
or Social Security number that I came across.
14
legit.
15
associated with either the business or Mr. Herttua's purported
16
residence on the loans -- so Mr. Herttua had a fairly open and
17
public profile that I was able to find online.
18
was a salesperson.
19
him on LinkedIn.
So I started performing an analysis on the name listed on
Can you describe generally what type of inconsistencies you
Pretty much everything aside from the name, date of birth
Those were all
But the business name, his title as CEO, the addresses
I saw where he worked.
I saw that he
I believe I found
So I had a pretty overt profile.
20
And you'd think somebody who was a CEO of another
21
business called BRS Consulting would have another profile
22
saying I'm also the CEO of BRS Consulting, and I couldn't find
23
that anywhere, so I chalked that up as an inconsistency.
24
25
Additionally, with law enforcement database checks and
the information that's available to us to help us research
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1
these type of things, I couldn't find the address associated
2
with this anywhere, associated prior with Mr. Herttua.
3
Conversely, I could find all of his addresses in New Jersey,
4
upstate New York, summer home, recent move to Florida, things
5
like that.
6
Q.
7
experience and your early investigation into Mr. Herttua, did
8
there come a time when you came to believe that you were
9
dealing with a case of possible identity theft?
10
A.
11
associate saying either something's not adding up or
12
something's not right about this based on those observations,
13
the inconsistencies that I was finding with Mr. Herttua and the
14
one purported to have taken this loan.
15
Q.
And, generally speaking, what is identity theft?
16
A.
Identity theft simply is somebody else assuming the
17
likeness, usually by name, date of birth, Social Security
18
number, of a different person, and then using that information
19
to conduct some kind of crime.
20
Q.
21
identity theft situation inform subsequent steps that you took
22
during your investigation?
23
A.
24
victim of identity theft, it's pointless to follow the real
25
person.
Now, Special Agent Lidsky, based on your training and
Yes.
Pretty early on I remember sending a note to an
How, if at all, did the belief that this was a potential
Well, as soon as -- obviously, if we think somebody's a
You know, we -- there's no crime associated -- that
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1
person's not going to have any information that's helpful to
2
guide our investigation further.
3
end out of the gate.
4
215
So that's pretty much a dead
So I discounted Mr. Herttua fairly early on.
I didn't
5
rule him out until I could rule him out, but for the first
6
steps I focused on other potential investigative leads
7
contained with the information that was provided to me.
8
Q.
9
what did you discount him as, if anything?
10
A.
11
diverting the funds to other purposes.
12
Q.
13
potential identity theft situation, what type of leads, if any,
14
did you focus your investigation on to try to identify the
15
people behind these fraudulent loans or person?
16
A.
17
work, because you don't have a real address, you don't have a
18
real name, you don't have a real person.
19
that jumped out at me as possible paths that I could follow to
20
ultimately get to -- to finding who's responsible for this were
21
the phone number -- and of course with any financial crime or
22
any crime that involves a financial component, what we do is --
23
what we say in law enforcement is "follow the money."
24
25
And to be clear, when you say you discounted Mr. Herttua,
Oh, as a responsible party for obtaining this loan and
Now, in light of the fact that this was a likely or
So identity theft is, you know, extra tough in my line of
So the two things
So those were the two things that jumped out as
potential avenues of progress I can make on this.
SOUTHERN DISTRICT REPORTERS, P.C.
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216
1
Q.
2
money, can you explain at a high level how you would follow the
3
money in a financial related investigation?
4
A.
5
guess, but it involves tracing the money from its origin to
6
whoever owns it, whoever controls it at the end.
7
that may not be from A to B.
8
And focusing first on what you described as following the
Sure.
That simply involves -- well, it's not simple I
Obviously,
In complex financial conspiracies, money will be moved
9
laterally from accounts to accounts, but following it to its
10
end, its ownership, is the goal.
11
money from a loan that's ultimately used to purchase a thing, a
12
car, a boat, a house, following money that goes into an account
13
which is then represented by something like a checkbook or a
14
credit card or a debit card.
15
somebody's pocket.
16
And that could be following
Sometimes it ends up with cash in
So it's taking it from its source and following it
17
through to whoever -- follow it to the end of the line.
18
Whoever owns it generally is the person I'm looking for.
19
Q.
20
Thank you.
(Continued on next page)
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MAQ1ILO5
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217
1
BY MS. MURRAY:
2
Q.
3
this BRS Consulting Corp. loan, what was the money that you
4
began to follow?
5
began to follow?
6
A.
7
deposited into a Capital One bank account.
8
go.
That's the starting point.
9
Q.
And what, if anything, were you able to determine about the
10
flow of those loan funds from that Capital One bank account?
11
A.
12
other bank accounts, some investment platforms as well, but
13
it -- I believe it dissipated rather quickly out of the Capital
14
One account.
15
Q.
16
went to was a Coinbase account?
17
A.
18
funds went to Coinbase.
19
Q.
What is Coinbase?
20
A.
Coinbase is a cryptocurrency exchange platform, so it's a
21
financial institution, domestic, I believe, that specializes in
22
cryptocurrency investment, trading, exchanges, things like
23
that.
24
25
Special Agent Lidsky, in this particular instance, with
What was the source of the money that you
So it began with the PPP loan funds, the $531,218 that was
That's, you know,
That it flowed fairly quickly into a number of different
Do you recall whether one of those accounts that the funds
It was.
A majority -- I think almost 80 percent of the
MS. MURRAY:
Ms. Loftus, can you please publish what's
in evidence as Government Exhibit 251.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MAQ1ILO5
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1
Are the witness and the jury able to see that?
2
THE WITNESS:
I am.
3
THE JURORS:
Yes.
218
4
Q.
Special Agent Lidsky, what is this?
5
A.
This is a document that Coinbase provided in response to a
6
subpoena that I sent to them.
7
MS. MURRAY:
And Ms. Loftus, if we could zoom in at
8
first on the top portion, please.
9
Q.
10
user ID?
11
A.
Jonathan Herttua.
12
Q.
And what email address is listed for this account holder?
13
A.
Herttuajonathan1957@gmail.com.
14
Q.
On what date was this Coinbase account created?
15
A.
January 8, 2021.
16
What is the name associated with this Coinbase account, or
MS. MURRAY:
Thank you, Ms. Loftus.
If we could now
17
pull up, please, what's in evidence as Government Exhibit 253,
18
which is another Coinbase record.
19
And if you could scroll through the pages of this
20
particular Coinbase record.
21
Q.
22
records from Coinbase?
23
A.
I do.
24
Q.
Generally speaking, what is reflected in Government
25
Exhibit 253?
Special Agent Lidsky, do you recognize these additional
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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219
1
A.
2
as part of their response to my subpoena.
3
Q.
4
records such as those reflected in Government Exhibit 253 in
5
connection with a Coinbase account?
6
A.
7
this when any customer opens an account, and they maintain this
8
in their business records, and they do provide it to law
9
enforcement upon request.
10
These are images, photographs that Coinbase provided also
Do you have an understanding of why Coinbase collects
I do.
From previous experience with Coinbase, they ask
MS. MURRAY:
And Ms. Loftus, if you could please go up
11
a few pages in this exhibit, just to one of the photographs of
12
the individual.
13
Thank you.
If you could pause there, please.
14
Q.
Special Agent Lidsky, generally speaking, how, if at all,
15
were these Coinbase records that we're looking at here in
16
Government Exhibit 253 relevant to your investigation and to a
17
potential identity theft?
18
A.
19
which is pretty early on -- Coinbase has responded quickly to
20
the subpoena -- this pretty much confirmed my suspicions about
21
the identity theft, and part of -- part of my research into
22
trying to evaluate whether or not the real Mr. Herttua was
23
involved in this, I pulled his New Jersey driver's license,
24
which included his New Jersey driver's photo.
25
immediately tell that these are not the two men -- same two
In more than one way.
So this -- when I received this,
And I could
SOUTHERN DISTRICT REPORTERS, P.C.
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1
men.
2
98 percent to a hundred percent that we were dealing with
3
identity theft.
4
220
So this -- this pretty much confirmed, took me to -- from
MS. MURRAY:
Thank you, Ms. Loftus.
You can take that
5
down.
6
Q.
7
beginning to follow the money for this particular loan, you
8
also were interested in the phone number that was listed on the
9
loan application; is that correct?
10
A.
I was.
11
Q.
Can you explain to the jury why that phone number was of
12
interest to your investigation.
13
A.
14
item that gives us great insight into what people do,
15
potentially where they go each day, who they call.
16
for me is a solid lead, especially if I'm trying to figure out
17
whose, you know -- who's using the phone, whose pocket is it --
18
is it in right now, which, you know -- so when I find the
19
pocket, I'm able to identify the person wearing the pocket.
20
Q.
21
listed on the BRS Consulting Corp. application ending in 0642,
22
what were the initial steps, if any, that you took to begin to
23
investigate that phone?
24
A.
25
lot of times with crimes like this, people will use what's
Special Agent Lidsky, you mentioned that in addition to
Phones give us an opportunity to identify people.
It's an
So a phone
With respect to this particular phone number that was
So I wanted to know if it was an actual live phone line.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
A
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1
called burner phones, where they'll use it for a short time, as
2
soon as they're done with it, throw it away, and we encounter
3
that a lot in law enforcement.
4
if it was active, if it was live.
5
subpoena to T-Mobile, who I had identified as the carrier,
6
while waiting for that, I simply called it from a blocked
7
number just to see if it rang, it went to voicemail.
8
answered, I would just hang up.
9
more importantly, what I didn't get, thankfully, was the, you
10
know, the automated system message saying this number is no
11
longer in service.
12
confirming that the phone is still active.
13
Q.
14
determine whether it was active, do you recall whether anyone
15
answered the phone?
16
A.
Nobody answered the phone.
17
Q.
Do you recall whether there was a voicemail box set up for
18
the phone?
19
A.
20
beeped with no message, or if it was a simple, you know, you've
21
reached 646-575-0642.
22
MS. MURRAY:
So I wanted to see if it was -In addition to sending a
If it
We're all used to that.
And
So that is a, you know, informal way of
When you made that call to this phone number to try to
I don't recall if there was a voicemail box, if it just
Ms. Loftus, can you please publish what's
23
in evidence as Government Exhibit 372.
24
Q.
Are you able to see that, Special Agent Lidsky?
25
A.
I don't have anything yet.
It's coming up now.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO5
Document 94 Filed 11/18/22
Lidsky - Direct
1
Yes.
2
MS. MURRAY:
Okay.
3
THE JURORS:
Yes.
4
MS. MURRAY:
Yes.
Page 191 of 218
Do you all have it?
Okay.
Thank you.
5
Q.
What is this document?
6
A.
This is part of the responsive documents I received from
7
T-Mobile pursuant to my subpoena for this phone number.
8
Q.
9
you had requested records for?
10
A.
11
is in response to your subpoena," they list the number; and
12
then down in the bottom on the device details in the center,
13
you see the number again.
14
Q.
15
this number, which I'm going to refer to for ease as the 0642
16
number, who is the listed subscriber of the 0642 number?
17
A.
Jonathan Herttua.
18
Q.
And what is the address that's associated with that
19
subscriber Jonathan Herttua in these T-Mobile records?
20
A.
74 East Seventh Street, Brooklyn, New York 11218.
21
Q.
As of what date was that subscriber name active, which is
22
to say, as of what date was the 0642 number associated with
23
Jonathan Herttua?
24
A.
25
222
And where on this document do you see the phone number that
Up towards the top, in T-Mobile's just notification, "This
So looking at the subscriber name that's associated with
On August 26, 2020.
MS. MURRAY:
Thank you, Ms. Loftus.
You can take that
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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223
1
down.
2
Q.
3
where else, if anywhere, did you encounter the 0642 number?
4
A.
5
would come in, I saw this number associated with other bank
6
accounts, other -- other accounts generally; a pretty wide
7
swath of -- of places where this number was attached.
8
Q.
9
to your investigation?
10
A.
Absolutely.
11
Q.
I'd like to go through just a few of those as examples with
12
you.
13
14
As your investigation continued, Special Agent Lidsky,
As we continued to expand the investigation and records
And was this number attached to records that were relevant
MS. MURRAY:
Ms. Loftus, if you could publish please
what's in evidence as Government Exhibit 112.
15
Just give it a moment.
16
Is everyone able to see that?
17
THE JURORS:
Yes.
18
MS. MURRAY:
Thank you.
19
BY MS. MURRAY:
20
Q.
Special Agent Lidsky, what is this?
21
A.
This is one of the other records that I was referencing.
22
This is a Chase signature card statement.
23
Q.
24
does this business signature card relate to?
25
A.
And looking at the top of this document, what Chase account
Appsensible.com, LLC.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO5
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224
1
Q.
That's on the top left; is that correct?
2
A.
That is correct.
3
Q.
And looking at the business address listed for
4
Appsensible.com, LLC, in these bank records, can you read that
5
for us, please.
6
A.
74 East Seventh Street, Brooklyn, New York 11218.
7
Q.
Now looking at the printed name for the individual contact
8
associated with this business bank account, what is the name
9
associated with this account?
10
A.
Jonathan Herttua.
11
Q.
And then to the right there are three phone numbers listed.
12
Can you read for us the middle phone number, please.
13
A.
646-575-0642.
14
Q.
And that's our same 0642 number; is that correct?
15
A.
It is.
16
MS. MURRAY:
Ms. Loftus, can you please take that down
17
and publish what's in evidence as Government Exhibit 351.
18
Q.
Special Agent Lidsky, do you recognize this document?
19
A.
I do.
20
Q.
What type of record is it?
21
A.
This is a responsive document I received from Robinhood.
22
Q.
Can you explain what Robinhood is.
23
A.
Robinhood is a financial investment -- I guess it's bank.
24
I want to say they're focused primarily online.
25
for stock and also cryptocurrency digital currency exchange and
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
But they allow
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MAQ1ILO5
1
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Page 194 of 218
225
trading.
2
MS. MURRAY:
Ms. Loftus, if you could please focus
3
first on the portion Contact Information down through Last
4
Name, all the way to the right side of the page.
5
Q.
6
customer for this particular Robinhood account?
7
A.
Jonathan Herttua.
8
Q.
And then looking to the right, what is the date of birth
9
listed for this individual?
10
A.
August 18, 1957.
11
Q.
And the address?
12
A.
74 East Seventh Street in Brooklyn, New York 11218.
13
Q.
Taking you back over to the left side, on what date was
14
this particular Robinhood account approved?
15
A.
What is the first name and last name listed for the
February 2, 2021.
16
MS. MURRAY:
Ms. Loftus, if you could zoom out on that
17
and then zoom in, please, on the very bottom portion of this
18
document which lists email, phone number, and Social Security
19
number.
20
Q.
21
name of Jonathan Herttua, what is the email address that's
22
listed for this account?
23
A.
Herttuajonathan1957@gmail.com.
24
Q.
And the phone number?
25
A.
646-575-0642.
Special Agent Lidsky, for this Robinhood account in the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO5
Document 94 Filed 11/18/22
Lidsky - Direct
Page 195 of 218
1
Q.
Again, is that our same 0642 number?
2
A.
It is.
3
Q.
And what are the last four digits of the Social Security
4
number listed here, please?
5
A.
1091.
6
Q.
I'd like to look at one more.
7
MS. MURRAY:
226
Ms. Loftus, if you could please take this
8
down and publish Government Exhibit 264 at page 3.
9
Q.
Special Agent Lidsky, do you recognize this document?
10
A.
I do.
11
Q.
What type of record is this?
12
A.
This is a responsive record I received from Enterprise
13
Rental Car.
14
Q.
15
this record, first, starting on the top, there is some text
16
that appears to be black in kind of a teal bar.
17
that?
18
A.
I do.
19
Q.
What does that read?
20
A.
"Driver on do not rent."
21
Q.
Now looking down at the second line of the substantive text
22
here, what is the first name and last name of this renter, for
23
this Enterprise record?
24
A.
Jonathan Herttua.
25
Q.
And the date of birth listed to the right?
Just walking through a few of the items that are listed on
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Do you see
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Page 196 of 218
1
A.
18 August 1957.
2
Q.
What is the address that is listed for this renter?
3
A.
74 East Seventh Street, Brooklyn, New York 11218.
4
Q.
And looking at the next line, which is titled Main Phone,
5
what is the main phone number that's associated with this
6
renter?
7
A.
646-575-0642.
8
Q.
Looking to the right and a line down, can you please read
9
us the email address that's associated with this Jonathan
10
Herttua in Enterprise's system.
11
A.
Herttuajonathan1957@gmail.com.
12
MS. MURRAY:
Thank you, Ms. Loftus.
You can take that
13
down.
14
Q.
15
those the only records that you collected or reviewed in the
16
course of your investigation that listed the 0642 number?
17
A.
18
227
Special Agent Lidsky, the documents we just looked at, were
No.
MS. MURRAY:
Ms. Loftus, if you could please show just
19
for the witness, defense counsel, and the Court what's been
20
marked for identification as Government Exhibit 740.
21
Q.
22
marked for identification as Government Exhibit 740?
23
A.
I am.
24
Q.
Do you recognize it?
25
A.
I do.
Special Agent Lidsky, are you able to see what's been
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MAQ1ILO5
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Page 197 of 218
228
1
Q.
What is it?
2
A.
This is a chart.
3
Q.
Does this chart, which is marked Government Exhibit 740,
4
summarize certain information that is contained within
5
voluminous records?
6
A.
It does.
7
Q.
This chart, which is marked Government Exhibit 740, is this
8
chart accurate?
9
A.
It is.
10
Q.
How do you know that it's accurate?
11
A.
I've reviewed all of these records, I obtained all of these
12
records, and I've associated each one of these with the 0642
13
number.
14
Q.
15
the information as reflected in this summary chart is accurate?
16
A.
Yes.
17
Q.
Are the source documents that this summary chart relied on
18
cited in Government Exhibit 740 by their own Government Exhibit
19
numbers?
20
A.
21
22
And were you able to, based on that review, verify that all
Yes.
MS. MURRAY:
Your Honor, the government offers
Government Exhibit 740 as a summary chart.
23
THE COURT:
Mr. Brill?
24
MR. BRILL:
No objection.
25
THE COURT:
It will be received as a summary of
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO5
1
Document 94 Filed 11/18/22
Lidsky - Direct
Page 198 of 218
documents that are in evidence.
2
(Government's Exhibit 740 received in evidence)
3
MS. MURRAY:
Thank you, your Honor.
5
THE COURT:
Yes.
6
MS. MURRAY:
Ms. Loftus, if you could please publish
4
229
And may we
publish.
7
Government Exhibit 740 to the jury.
8
BY MS. MURRAY:
9
Q.
10
a high level what we're looking at in this exhibit.
11
A.
12
that had this phone number, the 0642 phone number, associated
13
with it.
14
that's the document we looked at just a few minutes ago, and
15
the rest of these -- the Enterprise record is on here as well.
16
And the others we didn't look at are listed here.
17
Q.
18
is the phone number.
19
A.
Correct.
20
Q.
On the rightmost column is the company record.
21
company that was the source of the information that is cited in
22
this chart?
23
A.
It was.
24
Q.
And then looking at the middle two columns, Associated Name
25
and Record Type, first, with Associated Name, does that reflect
Special Agent Lidsky, can you just describe for the jury at
This -- this lists all of the different records we received
So, an Appsensible.com signature card at Chase Bank,
So just looking at a few examples here, on the left column
That's our 0642 number, correct?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Is that the
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230
1
what information in those company records was tied to the 0642
2
number?
3
A.
That's correct.
4
Q.
And then Record Type identifies for us what the source
5
document purported to be, what type of record it was from those
6
companies; is that right?
7
A.
Also correct.
8
Q.
So looking through this, Special Agent Lidsky, in addition
9
to seeing the 0642 number associated with Jonathan Herttua and
10
variations on that name, looking at the fourth line, do you
11
also see this phone number associated with a different
12
individual's name?
13
A.
I do.
14
Q.
What name is that?
15
A.
Jonathan Lipow.
16
Q.
And what company does Jonathan Lipow -- is Jonathan Lipow
17
associated with for purposes of this 0642 number?
18
A.
Mula Apps Corp.
19
Q.
And looking at the line above, there's a Chase Bank record
20
that we just looked at a short time ago.
21
the individual who was listed for this phone number at Mula
22
Apps Corp. in the Chase Bank records?
23
A.
Jonathan Herttua.
24
25
What was the name of
MS. MURRAY:
Thank you, Ms. Loftus.
You can take this
down.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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231
1
Q.
Special Agent Lidsky, what, if anything, did the frequency
2
with which you encountered the 0642 number during your
3
investigation indicate to you?
4
A.
5
I was investigating; that it was -- usually with a bank
6
application, from my experience, and in talking to witnesses in
7
this case, there might be follow-up from the bank, setting
8
appointments, things like that, so the fact that this number
9
was being used and associated with applications that were
10
central to the fraud itself or to enabling the fraud, I
11
inferred that it was -- it was actively being used and
12
essential for the person or persons using it.
13
Q.
14
your investigation into the person or persons behind this
15
fraud, what, if anything, did you do next to follow that lead
16
of that phone?
17
A.
18
analysis, both historical data-type analytics but also adding
19
on electronic surveillance investigative techniques as well.
20
Q.
Can you describe what you mean by electronic surveillance.
21
A.
So there are a variety of electronic surveillance
22
techniques that can be applied to cellphones.
23
most interested in in this case, because I wanted to find the
24
person who was using the phone, was to do location-type
25
tracking, GPS and cell tower-type location tracking.
That it was important to whoever was behind the fraud that
Now once you had identified the 0642 number as essential to
I expanded my investigative steps with the phone to include
The one I was
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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232
1
Q.
How, if at all, are you able to track the location of the
2
cellphone?
3
A.
4
were GPS tracking of the phone.
5
phone company can ping their device and the location and, you
6
know, a smartphone -- this happened to be a smartphone -- it
7
will work -- the phone will report back to the network, you
8
know, where it is, with ranging degrees of accuracy.
So there are a few ways.
9
The two that I employed initially
That is a function where the
The other way is through cell tower analysis.
The
10
phone companies can tell with, again, varying degrees of
11
accuracy where a phone is on its network based on where it is
12
in relation to one of its towers.
13
there's a T-Mobile tower somewhere that says, Lidsky's over
14
here to my right in the courthouse.
15
Q.
16
include obtaining any warrants relating to that phone?
17
A.
18
a Fourth Amendment search.
19
search warrants for -- for a variety of location tracking on
20
the device.
21
Q.
Did that include what is referred to as a GPS warrant?
22
A.
It did.
23
Q.
What information, if any, were you able to collect about
24
the 0642 phone as a result of that GPS warrant?
25
A.
So right now, my phone,
Now did your electronic surveillance on the 0642 number
Yes.
So location tracking requires a search warrant.
So I did.
It's
I obtained multiple
It -- I was able to get thousands of data points
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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233
1
referencing -- with reference to the phone and its physical or
2
geographical location over the course of a year.
3
stored by network providers, allows us to go back in time and
4
visualize this data or get these location points going back for
5
an extended period, and I believe in this I went back about 12
6
or 13 months.
7
Q.
8
the 0642 phone, what, if anything, were you able to learn from
9
that data about the movements or the activity of this phone?
10
A.
11
establish, again, what we call as a pattern of life.
12
you look at somebody's movements over time, you get a -- you
13
can infer a pretty -- I can infer or I did infer a pretty good
14
sense of where somebody goes on a regular basis.
15
know -- we all start the day at our house.
16
us go to work, some of us go to school.
17
around, over time, those, you know -- a lot of us are creatures
18
of habits, and that's what I hope to see when I -- when I
19
reach -- when I get this type of data, and then from there, I
20
can try to figure out, again, who -- who is this person that
21
has this phone, where does he or she live, where does he or she
22
work, where does he or she shop, and it's -- from that I can
23
draw further leads, investigative leads.
24
Q.
25
the GPS warrant for the 0642 phone, did you conduct additional
The data,
Focusing on that GPS location data that you obtained for
So one of the things we -- we obtained the data for is to
So when
You can, you
We all -- a lot of
And so as we move
And based on the data that you were provided pursuant to
SOUTHERN DISTRICT REPORTERS, P.C.
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1
analysis to try to determine what, if anything, the data showed
2
about the location of the phone?
3
A.
4
into a special specialized mapping software that allows me to
5
visualize the data in relation to, you know, to New York City
6
in this case.
7
I did.
I plotted the points I'd received from T-Mobile
MS. MURRAY:
Ms. Loftus, can you please show the
8
witness, the Court, and the defense what's been marked for
9
identification as Government Exhibit 570.
10
Q.
11
please, Special Agent Lidsky.
12
A.
I have it.
13
Q.
Special Agent Lidsky, do you recognize what's been marked
14
for identification as Government Exhibit 570?
15
A.
I do.
16
Q.
What is it?
17
A.
This is a map that -- with analytical points that I made.
18
Q.
Does Government Exhibit 570 reflect your plotting of the
19
location data that you collected pursuant to that warrant for
20
the 0642 phone?
21
A.
Yes, it does.
22
Q.
How was Government Exhibit 570 created?
23
A.
So with the data that was provided by T-Mobile pursuant to
24
the warrant I obtained, I simply plotted all of those points
25
into the software; the software is just a spreadsheet of those
If you could just look up when that's on your screen,
SOUTHERN DISTRICT REPORTERS, P.C.
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1
points and visually displays each one of them on a map like
2
this, and in fact on this map.
3
Q.
4
representation of your plotting using that tool of the location
5
data for the 0642 phone?
6
A.
Yes, it is.
7
Q.
And over what time period of data -- what time period of
8
data is reflected on Government Exhibit 570?
9
A.
10
11
Is Government Exhibit 570 a fair and accurate
I believe this was approximately a year.
MS. MURRAY:
Your Honor, the government offers
Government Exhibit 570.
12
THE COURT:
Mr. Brill?
13
MR. BRILL:
Could I have just a very brief voir dire
14
of the witness to clarify one thing.
15
16
THE COURT:
Is it related to an objection or is this
in the nature of cross-examination, which you'll do?
17
MR. BRILL:
It's related to a possible objection.
18
THE COURT:
Go ahead.
19
VOIR DIRE EXAMINATION.
20
BY MR. BRILL:
21
Q.
Good afternoon, Agent Lidsky.
22
A.
Good afternoon, sir.
23
Q.
The plot points came from data that was derived from GPS
24
and cell tower analysis or just from the GPS returns?
25
A.
These were just points from I believe GPS, from T-Mobile.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MAQ1ILO5
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MR. BRILL:
No objection.
2
THE COURT:
All right.
3
(Government's Exhibit 570 received in evidence)
4
THE COURT:
5
236
It will be received.
And then, Ms. Murray, if you would let me
know a convenient breaking point.
6
MS. MURRAY:
Yes, your Honor.
Thank you.
7
just a few questions on this topic.
8
finishing this before we wrap up for the day.
Sure.
There are
I would appreciate
9
THE COURT:
Are our court reporters okay?
10
THE REPORTER:
11
THE COURT:
And the jurors?
12
THE JURORS:
Yes.
13
THE COURT:
Okay.
14
MS. MURRAY:
Thank you.
15
Ms. Loftus, can you please publish Government
I'm good, Judge.
Thank you for asking.
Go ahead.
16
Exhibit 570, which is now admitted into evidence.
17
Are the jurors able to see that?
18
THE JURORS:
Yes.
19
BY MS. MURRAY:
20
Q.
21
first of all, what geographical area is represented, generally
22
speaking, on the map that we see in Government Exhibit 570.
23
A.
24
Brooklyn towards the right.
25
Q.
Special Agent Lidsky, can you please describe for the jury,
So this covers Manhattan on the left, and then Queens and
And now looking at this map, Government Exhibit 570, can
SOUTHERN DISTRICT REPORTERS, P.C.
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1
you please describe for us what is depicted by the red circles
2
or dots, generally.
3
A.
4
represents a GPS point that was provided by T-Mobile.
5
of the circle, the diameter of the circle, is -- relates to the
6
accuracy as T-Mobile gauged its response.
7
send me a GPS point, they provide a degree of accuracy.
8
smaller the number, the smaller the circle, the more accurate
9
their read was.
10
outside than it's inside.
11
their GPS will go out.
12
the circles reflect.
So the circles, each circle, the pink opaque circles,
The size
So every time they
The
Generally, phones, GPS works better when it's
If anyone drives through a tunnel,
So that's -- that's what the size of
13
And the coloring, where you see the deeper, darker
14
pinks or red, the way this software works is so if I drop a
15
point and drop a point on top of it, each one is just the
16
normal shade of pink, but as they start stacking up on top of
17
one another, the system darkens the red.
18
deeper shades of red or the darkest red means there are more
19
points there; where you see just a single opaque circle in
20
places, it means that's probably just a single point over the
21
span of the data that was analyzed.
22
Q.
23
screen and it will make an indication for the jury.
24
could, just draw or circle for us the areas based on this data
25
that you determined were of interest in terms of the frequency
So where we see the
Special Agent Lidsky, you should be able to draw on your
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
If you
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238
1
that the 0642 phone appeared.
2
A.
So that one jumped out.
3
Q.
That's on the right in a teal color.
4
A.
Correct.
5
circling around lower Manhattan.
6
this area in here and this area down here were the ones of -- I
7
mean, there are some other spots of deep red, but, you know,
8
I -- I was looking for the -- the larger patterns to me.
9
equated those to more volume and the places -- I have to start
10
somewhere.
11
Q.
12
And then I'm moving towards the left.
I'm
The phone was very busy in
I
Thank you.
MS. MURRAY:
Ms. Loftus, you can take that down, and
13
could you please now show the witness -- and if we could erase
14
the circles.
15
Thank you.
Ms. Loftus, if you can please show the witness, the
16
Court, and the parties what's been marked for identification as
17
Government Exhibit 571.
18
BY MS. MURRAY:
19
Q.
Special Agent Lidsky, do you recognize this?
20
A.
I do.
21
Q.
What is it?
22
A.
This is another map with an analytical point or points that
23
I created.
24
Q.
25
of the same data we just discussed?
Did you create or prepare Government Exhibit 571 using some
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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Document 94 Filed 11/18/22
Lidsky - Direct
Page 208 of 218
1
A.
I did.
2
Q.
Is Government Exhibit 571 a fair and accurate
3
representation of certain location data for the 0642 phone?
4
A.
5
6
239
It is.
MS. MURRAY:
Your Honor, the government offers
Government Exhibit 571.
7
THE COURT:
Mr. Brill?
8
MR. BRILL:
No objection.
9
THE COURT:
It will be received.
10
MS. MURRAY:
Thank you, your Honor.
11
(Government's Exhibit 571 received in evidence)
12
MS. MURRAY:
You may publish it.
Ms. Loftus, if you could please publish.
13
BY MS. MURRAY:
14
Q.
15
time period or date range the information reflected in
16
Government 571 represents.
17
A.
18
previous map over the same amount of time, only with a filter
19
added onto it.
20
Q.
And what filter was that?
21
A.
This is filter to show just those GPS points that occurred
22
between the hours of midnight and 5 a.m. Eastern time.
23
Q.
24
the 0642 phone between midnight and 5 a.m.?
25
A.
Special Agent Lidsky, first, could you please describe what
So this shows the same day that we looked at in the
And why, if at all, did you analyze the location data for
So I realize it doesn't apply to everybody, but a lot of
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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Filed 11/18/22
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1
people, a fair amount of people, maybe most people, are at home
2
between the hours of midnight and 5 a.m.
3
work goofy schedules, and I do as well from time to time.
4
I always do this as a first step to see -- as I said earlier, I
5
want to use the map to find the pattern of life, where somebody
6
is at home midnight to 5 a.m., where they work, 9 to 5, things
7
like that.
8
between midnight and 5, and I have only one point on this map,
9
which is good for me for what I'm trying to do.
10
consistent over -- over -- over an extended amount of time.
11
Q.
12
the analysis returned a single point on the map for the
13
location of the 0642 phone between the hours of midnight and
14
5 a.m.?
15
A.
16
chasing -- I don't know who I'm chasing.
17
chasing a phone in a pocket somewhere.
18
the phone is in a different place, I may never find out who it
19
is.
20
this one consistently went to a place every night gave me hope,
21
gave me optimism, that I might be able to solve this crime.
22
23
24
25
I know many of us
But
So I filtered the map to show me only the points
It's
What do you mean when you say that it's good for you that
Well, I'm chasing a ghost, for lack of a better term.
All I know is I'm
So if I see every night
I know a lot of these cases I don't.
MS. MURRAY:
So the fact that
Your Honor, this is a good place to stop
for the day.
THE COURT:
I'm
All right.
We will break for the
afternoon then.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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Document 94
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So I just remind you, ladies and gentlemen, please
2
leave your notebooks on the chair or in the jury room.
3
take them home with you.
4
the case either among yourselves or with anybody else, and
5
don't do any research related to the case.
6
All right.
Don't
And please remember, don't talk about
And I will see everyone back here tomorrow
7
morning at 9:30 start time, please.
8
a little bit before that so we're ready to go at 9:30.
9
you.
10
All rise for the jury.
11
(Jury not present)
12
THE COURT:
All right.
Okay?
So if you'd arrive
Thank
Special Agent Lidsky, you're
13
excused.
14
will resume tomorrow morning with your testimony.
I just remind you that you remain under oath, and we
15
THE WITNESS:
16
THE COURT:
17
THE WITNESS:
18
THE COURT:
19
Is there anything from the government?
20
MS. MURRAY:
Thank you, your Honor.
Thank you.
Have a good evening.
Thank you.
You as well.
And counsel, you may be seated.
Yes, your Honor.
Just one matter.
The
21
defense has indicated, as your Honor knows, that it wants to
22
call Mr. Recamier --
23
THE COURT:
I was going to ask about that.
24
MS. MURRAY:
-- on his case.
25
241
Given the timing of how
the evidence is coming in and just in light of the schedule, we
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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MAQ1ILO5
Document 94
Filed 11/18/22
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1
will not be in a position to rest the government's case
2
tomorrow.
3
on Friday.
We anticipate doing so relatively early in the day
4
THE COURT:
Really?
5
MS. MURRAY:
No, your Honor.
Isn't this your last witness?
No.
We have Elizabeth
6
Palmer, Samantha Aaron and Randy Martin, Robert Bateman,
7
William Jamieson, and Damjan Hezir.
8
9
10
242
THE COURT:
I was not aware of that.
When you gave me
the list the other day, you stopped at Special Agent Lidsky.
MS. MURRAY:
I'm sorry, your Honor.
I thought you
11
were talking about the witnesses anticipated today.
12
witness list is everybody who is listed in the government's
13
list of names and places and the addition, obviously, of the La
14
Colombe witness.
15
tomorrow, because we had hoped we'd be in a position to be
16
further along.
17
order his production on Friday.
18
may have had conversations with Mr. Recamier's counsel just
19
about their availability and timing, so I just wanted to flag
20
that for the Court.
21
THE COURT:
22
23
The full
We had ordered Mr. Recamier for production
It's a question for the Court.
All right.
We're happy to
I understand that Mr. Brill
Mr. Brill, what do you think?
Have you had conversations and -MR. BRILL:
Yes.
I had told them Thursday, based upon
24
the government's estimate, and I told them I'd get back to them
25
whether it was the morning or afternoon.
I then told them the
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case 1:21-cr-00746-MKV
MAQ1ILO5
Document 94
Filed 11/18/22
That's where we left it.
Page 212 of 218
1
afternoon.
2
stopped by at some point today just to stick his head in, but
3
we were in the middle of things so --
4
THE COURT:
5
to BOP for tomorrow?
6
MS. MURRAY:
All right.
Apparently counsel had
And the request has been made
Yes, your Honor.
My understanding—-and I
7
can confirm with the Marshals—-is we could also submit a
8
request for Friday.
9
THE COURT:
10
243
Do we think it's not a problem to change
it to Friday?
11
MS. MURRAY:
The Marshals have been extremely
12
accommodating, particularly in light of the fact that we're on
13
trial.
14
don't think it would be an issue if we put the request in today
15
for Friday, and I do have an understanding that they're
16
typically able to cancel requests on relatively short notice.
17
18
They did request typically 24 hours' notice.
THE COURT:
So I
Do you know, though, Mr. Brill, if that
will work for Mr. Recamier's counsel?
19
MR. BRILL:
No, I don't.
20
THE COURT:
All right.
So why don't I leave it to the
21
two of you to talk about that, and if it works to move it to
22
Friday and that's the consensus view, then move it to Friday.
23
Otherwise we can just take a break wherever you're at, we'll
24
find a convenient breaking point, excuse the jurors.
25
we're going to begin outside the presence of the jury, right?
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Because
Case 1:21-cr-00746-MKV
MAQ1ILO5
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1
Have you been advised, is Mr. Recamier still intending to
2
assert his Fifth Amendment right?
3
MR. BRILL:
I can say, to be as clear as I can, that
4
the answer, the direct answer to your question is yes, but
5
there's a caveat that's also been communicated to me.
6
seems unclear.
7
THE COURT:
8
witness to step out.
9
If you wouldn't mind, just step out.
10
244
All right.
So it
Maybe we'd better ask the
Is Special Agent Lidsky still back there?
Thank you.
Is the caveat a question about whether the government
11
will immunize him?
12
MR. BRILL:
No, your Honor.
13
THE COURT:
Oh, okay.
14
MR. BRILL:
It's -- as I would probably communicate to
15
another attorney in this situation, it was fairly vague, but
16
the way I interpreted it is that it's not a hundred percent
17
clear to counsel that he will actually invoke.
18
that he will invoke.
19
THE COURT:
20
21
22
23
I see.
Okay.
It's likely
And has the government
considered and is there a potential for immunizing him?
MS. MURRAY:
We have considered it, your Honor, and
there is not.
THE COURT:
Okay.
All right.
Then why don't you talk
24
to his counsel, Mr. Brill, since it's you who wish to call him
25
as part of the defense case, and if it can come in the normal
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
sequence of things, I think that works best from your point of
2
view, but if it can't be rearranged, it can't, then we'll just
3
take a break, all right?
4
notice of this, and I was operating under the false impression
5
that we were getting to the end of things.
6
jurors think they're going to be done this week.
7
MS. MURRAY:
Because obviously you've given ample
Yes, your Honor.
I mean, these
And I completely
8
understand.
9
that it will rest early in the day Friday.
10
occasioned by the morning and the addition of another witness
11
who was, frankly, significantly more time, substantially, than
12
many of our other witnesses, threw off our scheduling.
13
would just note for the Court, the addition of the La Colombe
14
witness today was as a result of what we flagged for the Court
15
at the final pretrial conference.
16
a stipulation.
17
18
19
As I said, the government certainly anticipates
The delay
And I
We were attempting to reach
THE COURT:
What do you mean by that, what you had
MS. MURRAY:
So during the final pretrial conference
flagged?
20
your Honor asked whether we had any agreements as to the
21
evidence.
22
THE COURT:
Yes.
23
MS. MURRAY:
And I indicated to your Honor that we had
24
stipulations and there was one additional that we were trying
25
to work through, and you gave us the offer that if the Court
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
could be of any assistance, we should come to you.
2
determined through speaking with Mr. Brill that there was
3
simply no path forward, so we were in a position that we did
4
need to identify and then bring another witness forward for
5
evidence.
6
THE COURT:
Okay.
246
We
But, I mean, you did know that when
7
we were picking the jury and when we were over here and we had
8
somebody who has graduate school on Monday and I looked at you
9
and you said, "We will finish this week."
10
are.
So, we are where we
Hopefully we won't run into any problems.
11
MS. MURRAY:
Understood, your Honor.
12
THE COURT:
But everybody should try to move things
14
MS. MURRAY:
Yes.
15
THE COURT:
And I'll let the jurors know where we're
16
at, you know, tomorrow, okay?
17
All right.
Anything else from you, Mr. Brill?
18
MR. BRILL:
I will communicate with the government as
19
soon as I hear from counsel.
20
THE COURT:
13
along.
Understood, your Honor.
All right.
And then if you would, one of
21
you let chambers know, please, just so we know what the
22
scheduling is, I'd appreciate it.
23
contact information?
24
MR. BRILL:
Yes, your Honor.
25
THE COURT:
All right.
You have Ms. Dempsey's
So you could let her know and
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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1
she'll let me know.
All right?
2
All right.
3
Filed 11/18/22
247
So nothing we need to take up tomorrow
morning then.
4
MS. MURRAY:
No, your Honor.
5
MR. BRILL:
No, your Honor.
6
THE COURT:
All right.
7
Page 216 of 218
Thank you very much then.
And
I thank our reporters, both of you, very much.
8
We'll stand adjourned for the day then.
9
(Adjourned to October 27, 2022, at 9:30 a.m.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Thank you.
Case 1:21-cr-00746-MKV
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Page 217 of 218
INDEX OF EXAMINATION
2
Examination of:
3
GERALD M. HANSON
4
Direct By Mr. Felton . . . . . . . . . . . . . .45
5
Cross Mr. Brill
6
JONATHAN HERTTUA
7
Direct By Ms. Murray . . . . . . . . . . . . . .62
8
Cross By Mr. Brill . . . . . . . . . . . . . . .89
9
JOHN PIARULLI
10
Direct By Ms. Murray . . . . . . . . . . . . . .91
11
Cross By Mr. Brill . . . . . . . . . . . . . . 109
12
KATHLEEN LITTWIN
13
Direct By Mr. Felton . . . . . . . . . . . . . 113
14
Cross By Mr. Brill . . . . . . . . . . . . . . 139
15
Redirect By Mr. Felton . . . . . . . . . . . . 145
16
KANDACE ZELAYA
17
Direct By Ms. Murray . . . . . . . . . . . . . 146
18
JOSHUA SARVER
19
Direct By Mr. Felton . . . . . . . . . . . . . 168
20
Cross By Mr. Brill . . . . . . . . . . . . . . 196
21
Redirect By Mr. Felton . . . . . . . . . . . . 199
22
HARRY LIDSKY
23
Direct By Ms. Murray . . . . . . . . . . . . . 204
Page
. . . . . . . . . . . . . . . .60
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
248
Case 1:21-cr-00746-MKV
1
Document 94
Filed 11/18/22
GOVERNMENT EXHIBITS
2
Exhibit No.
3
1, 101, 102, 111-117, 121,
Received
. . . . . . . . . .40
4
131-133, 141, 150-158, 803,
5
and 804
6
Page 218 of 218
2, 201-203, 211-213, 221-228, . . . . . . . . .43
7
231-234, 241, 251-253,
8
261-264, 271-274, 301-328,
9
331, 341-344, 351-354, 361,
10
362, 371-399, 401, 402, and
11
410-434
12
3, 160-168
. . . . . . . . . . . . . . . . . .44
13
24 and 291 through 298
14
50 and 51
15
570
. . . . . . . . . . . . . . . . . . . . 236
16
571
. . . . . . . . . . . . . . . . . . . . 239
17
740
. . . . . . . . . . . . . . . . . . . . 229
. . . . . . . . . . . 185
. . . . . . . . . . . . . . . . . 209
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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