Reported By: Marjorie Peters, FAPR, RMR, CRR, RSA

Source document: Reported By: Marjorie Peters, FAPR, RMR, CRR, RSA; document type: Deposition transcript excerpts (7 pages).

Full text

EXHIBIT 107
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
BLUE FLAME :MEDICAL, LLC,
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Plaintiff,
vs.
CHAIN BRIDGE BANK, N.A.,
JOHN J. BROUGH, and DAVID
M. EVINGER,
Defendant.
CHAIN BRIDGE BANK, N.A.,
Third-Party Plaintiff,
vs.
JPMORGAN CHASE BANK, N. A. ,
Third-Party Defendant.
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Civil Action No.
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1: 20-cv-00 658
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(LMB/IDD)
REMOTE VIDEOCONFERENCE
VIDEO-RECORDED DEPOSITION OF DAVID EVINGER
Friday, January 29, 2021, 9:32 a.m.
Oak Hill, Virginia
Reported By: Marjorie Peters, FAPR, RMR, CRR, RSA
Job Number: 4398572
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REMOTE VIDEOCONFERENCE
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VIDEO-RECORDED DEPOSITION OF DAVID EVINGER,
3 a witness herein, called by the Plaintiff Blue Flame
4 Medical, LLC, for examination, taken pursuant to the
5 Notice, and by Stipulated Agreement Regarding Remote
6 Depositions, by and before Marjorie Peters, a
7 Registered Merit Reporter, Certified Realtime
8 Reporter and Notary Public in and for the
9 Commonwealth of Virginia, at Oak Hill, Virginia, on
10 Friday, January 29, 2021, at 9:32 a.m.
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AP P E A R A N C E S
2 For the Plaintiff Blue Flame Medical
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Peter H  White, Esquire
Jason T  Mitchell, Esquire
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Gregory Ketcham-Colwill, Esquire
Kerri E  Ukabiala, Esquire
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SCHUL TE ROTH & ZABEL LLP
901 Fifteenth Street, NW, Suite 800
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Washington, DC 20005
pete  white@srz com
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+ I 202 729 7467
For the Defendant Chain Bridge Banlc
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Gary Orseck, Esquire
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Leslie C  Esbrook, Esquire
ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER &
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SAUBER LLP
2000 K Street, NW
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Washington, DC 20006
gorseck@robbinsrussell com
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lesbrook@robbinsrussell com
202 471 3996
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202 775 4504
15 For the Third-Party Defendant, JPMorgan Chase
16 Alan Schoenfeld, Esquire
Albinas Prizgintas, Esquire
17 Margarita Botero, Esquire
WILMERHALE
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1875 Pennsylvania Avenue, NW
Washington, DC 20006
19 alan schoenfeld@wilmerhale com
+I 212 937 7294
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APPEARANC E S
2 ALSO PRESENT:
3 Scott Forman, legal videographer
4 Betsey Sharon, Chain Bridge Bank
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5 Ethan Bearman, Blue Flame Medical
6 John Brough, Blue Flame Medical
7 Gabriel Torres
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Page 5
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I NDE X
2 EXAMINATION
PAGE
3 DAVID EVINGER
4 By Mr. White
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5 Acknowledgment of Deponent
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6 Certificate of Reporter
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7 Errata Sheet
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I NDEX OF EX H I B I TS
9 PLAINTIFF EXHIBIT
10 Exhibit 64
e-mail 3.25.2020,
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CBB00000779
12 Exhibit 65
e-mail 3.25.2020,
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CBB00002699-2700
14 Exhibit 66
e-mail 3.26.2020,
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CBB00002686
16 Exhibit 67
audio recording,
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CBB00000707
18 Exhibit 68
audio recording,
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CBB00002543
20 Exhibit 69
audio recording,
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CBB00002545
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1 circumstances certainly warranted it, along with the
1 manufacturers was a Chinese company called Great
2 very large size of the money that was coming in.
2 Health Companion?
3
Q.
The records we have seen, Mr. Evinger,
4 indicate that this conversation lasted about 19
5 minutes.
6
Does that accord with your
7 recollection of the length of the conversation that
8 you and Mr. Brough had with Mr. Gula and Mr. Case?
9
A.
Yes, that does.
10
Q.
Did Mr. Gula tell you about Blue Flame
11 Medical during that conversation?
12
A.
He provided us with a brief overview of
13 Blue Flame Medical, and its intended new business.
14
Q.
I take it he told you as well about the
15 contract to supply 100 million N95 masks to the
16 State of California; correct?
17
A.
He reviewed the contract with the State
18 of California with us, and gave us an overview.
19
Q.
I take it he also told you or confirmed,
20 because you had already heard it, that Blue Flame
21 was expecting a wire for over $450 million either
22 that day or the following day from the State of
Page 191
1 California; is that right?
2
MR. ORSECK: Object to form.
3
A.
Mr. Gula was asking us on the call
4 several times whether the wire had arrived yet or
5 not. He had -- he has wanted to know if it had hit
6 our wire room on our call, and asked if we could
7 check.
8
Q.
Did you all check during the call?
9
A.
I do recall checking, and I e-mailed him
10 back. Whether it was during the call or shortly
11 thereafter -- I know we did it after. But I'm not
12 sure if we did it during the call because we were
13 talking to him, but he wanted us to verify whether
14 the wire had already arrived or not.
15
Q.
He disclosed to you the amount of the
16 wire that he was expecting; is that correct?
17
A.
Yes. He told us it was going to be for
18 $450 million, approximately, and it was a down
19 payment towards a larger amount -- contract that
20 they had with the state.
21
Q.
Do you recall him telling you that the
22 manufacturer of the masks -- one of the
3
Do you recall that coming up during
4 the call?
5
A.
He spoke about a company. I believe
6 that was correct. Great Health
Greater Health.
7 I believe he referenced that.
8
Q.
And that they were going to be
9 manufacturing the masks in China; is that correct?
10
A.
Yes. The masks would be manufactured in
11 China.
12
Q.
Did he also tell you the name of the
13 company that was
that was the owner of
14 Great Health Companion, Hakim Unique
I am sorry,
15 Hakim Unique Internet Company?
16
Did he tell you that?
17
A.
I seem to recall that, yes. And it was
18 hard to understand what it
what the name was on
19 the call or to spell it, but that sounds like
20 something
yes, that sounds as if that was said.
21
Q.
And he told you that Blue Flame was
22 going to use the funds wired by California to pay
Page 193
1 the suppliers of the masks for California's order;
2 isn't that right?
3
A.
He gave us rough -- rough details. He
4 was not specific with amounts or -- or dates or
5 times. It was general -- generalizations were
6 provided.
7
Q.
Did he confirm, as you had heard before,
8 that Blue Flame would not be wiring all of the funds
9 that were wired to it out of the account at
10 Chain Bridge Bank?
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Do you recall him saying that?
12
A.
I don't -- I don't -- I don't remember
13 exactly it said that way, but it came across is that
14 there would be money moving out within several dayi
15 or sooner, for purchases of personal protective
16 equipment.
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He was not able to provide us with
18 exact information of that or the timing or the
19 dollar amounts of those outgoing at that point of
20 the call.
21
So I don't know how much would be
22 remaining in the account, if you will.
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1
So I think the conversation probably
1 supplier for masks that they could deliver.
2 had many components to it, and it had elements of
3 what -- what would be money remaining in the bank.
4 But it was a very high-level overview versus a very
5 granular discussion.
6
Q.
Do you recall Mr. Gula offering to
7 answer any questions or provide any documentation
8 that you might request regarding the transaction
9 during this phone call?
10
A.
He offered to provide documentations.
11 We requested documentation to support this large
12 amount, this contract, for a new company.
13
Q.
I take it, it is not your role as
14 bankers for your customer to do diligence for the
15 State of California on their contracting
16 counterparties, is it?
17
Do you view that as part of your
18 role?
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MR. ORSECK: Object to form.
20
A.
So our job is to know our customer and
21 to know their business with respect to new accounts,
22 onboarding of those accounts, any unusual
2
Q.
Tell me about other -- tell me about
3 other instances where you've investigated a customer
4 of yours to that extent, to determine whether they
5 were able to perform in that capacity.
6
Has that ever happened?
7
A.
We have -- we have done other due
8 diligence on clients who have large movements of
9 funds and have business activities that could be
10 outside of the United States or flow into the United
11 States. Absolutely.
12
Q.
Now, Mr. Gula told you that no money was
13 going to be transferred out of the United States
14 from your account. Do you remember that?
15
A.
He sent us an e-mail with the wiring
16 instructions, and he referenced that he would be
17 sending it inside the United States, but purportedly
18 earlier on this call with Heather, or Heather
19 conveyed to us that he would be sending money to
20 China. And I believe his e-mail alerted us to that
21 that could happen.
22
I don't know that it would happen,
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1 circumstances, any red fags that might present
1 but certainly, we hadn't concluded that -- where he
2 themselves, and so that's part of our reason for
3 the call was to obtain additional information, to
4 gather information to make an assessment of how
5 Blue Flame was able to obtain such an award.
6
So we're and more importantly,
7 were they actually able to, you know, transact on
8 this as they have the ability to handle this.
9
Q.
Why is that your responsibility, that
10 last part?
11
A.
Well, I think it would be most
12 unfortunate if there weren't an end product or if
13 somebody was part of a larger issue that occurred.
14 We wouldn't want our client to be involved in any
15 activities that weren't proper, so we we had
16 no we had no information or documentation on how
17 this contract was arrived, or was it actually a
18 contract with the State of California as reported to
19 be.
20
So the documentation was important
21 for us to show they do, in fact, have a contract,
22 that they had a supplier that, in fact, had a
2 would be sending money at this point.
3
Q.
All of the wiring instructions he gave
4 you were for domestic transfers; correct?
5
A.
Mr. White, I was provided with one
6 domestic transfer from Mike Gula.
7
Q.
Were you provided with any foreign
8 transfers?
9
A.
I was not provided with any foreign
10 transfers. The transfer that was given to me was
11 for the bank account, I believe, in California, for
12 Winguard Industries -- Winguard Industrial or
13 Winguard Industries. I'm not sure of the exact
14 name.
15
Q.
Why didn't you or Mr. Brough record this
16 call with Mr. Gula?
17
A.
I initiated this call from my -- my
18 phone, which I alluded to earlier does not have a
19 recording function.
20
Q.
There were other calls from your phone
21 that were recorded; correct?
22
MR. ORSECK: Object to form.
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Q.
You can answer.
A.
Those weren't done using -- using my
3 phone.
4
Q.
Whose phone was used for those?
5
A.
Mr. Brough's cell phone.
6
Q.
Were the calls placed on Mr. Brough's
7 cell phone?
8
A.
Which call -- which call specifically
9 are you referring to, Mr. White?
10
Q.
You mentioned three recorded calls that
11 were recorded on Mr. Brough's cell phone. What I
Page 200
1
A.
I was in my office -- I'm not in my
2 current office right now, just for clarity, and for
3 the record. I'm in a different office that has -- a
4 little quieter, but calls that were made were all
5 made from -- from my office phone out.
6
Q.
Was your concern here for your customer,
7 Mr. Gula, to make sure that he was not the victim of
8 something untoward?
9
A.
That was certainly a concern, and it
10 needed to be vetted.
11
Q.
But as a matter of fact, you found out
12 want to know is whose phone was used to make those 12 from vetting it that the State of California did --
13 calls?
13 had, in fact, vetted Blue Flame Medical. It did, in
14
MR. ORSECK: Object to form.
14 fact, intend to send them over $450 million;
15
A.
I -- I made outbound calls from my desk
16 phone.
17
Q.
Just like -- I'm sorry. Go ahead.
18
A.
His call -- the call in question with
19 Mr. Gula was made outbound from my desk.
20
Q.
The other calls that were --
21
A.
Mr. Brough--
22
Q.
Go ahead. Sorry.
1
A.
Can I finish?
2
Q.
Sorry.
Page 199
3
A.
Mr. Brough was on his -- I dialed him on
4 his cell phone.
5
Q.
Finished?
6
A.
Yes.
7
Q.
So there was -- there were calls made
8 from your office phone, as this one was, that were
9 recorded, in relation to this transaction; isn't
10 that right?
11
A.
Those recordings were not done using my
12 phone, but there were recordings made of calls from
13 my office.
14
Q.
The calls that were recorded were from
15 the same phone you used to make this call with
16 Mr. Gula; correct?
17
A.
Yes. And the same -- I called from my
18 office, my desk phone.
19
Q.
But that device that's probably to your
20 left right now was used for those calls and this
21 call with Mr. Gula; correct?
22
MR. ORSECK: Object to form.
15 correct?
16
MR. ORSECK: Object to form.
17 Foundation.
18
A.
Mr. White, I think where the concern
19 came in is that Mr. Gula didn't have a lot of
20 specifics on how this contract were procured. He
21 mentioned his business partner, Mr. Thomas. But he
22 really couldn't offer much detail on how the
Page 201
1 contract came about and/or how the
2 vendor/manufacturing process was going to work with
3 respect to delivery.
4
So with that, we still had more
5 unanswered questions in terms of you know, we
6 actually asked him, I think, are you are you
7 sure, or conversation around are you, you know
8 how well do you know these people?
9
He made reference to, what he
10 knew I think it was Mr. Wong Henry Huang. I'm
11 sorry ifl pronounced the name wrong. But that's a
12 name that kind of came up, I believe, in the call.
13
And that they knew him, and they
14 trusted him, and we kind of probed, but he was
15 unable to really fulfll and provide any any
16 pertinent details on his vendor, his supplier.
17
Q.
Well, it turned out, Mr. Evinger, that
18 the State of California was satisfed enough with
19 their diligence as to Blue Flame Medical because
20 they sent $456 million to your bank for that
21 account, the very next day; isn't that right?
22
MR. ORSECK: Objection to the
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Page 202
1 testimony by counsel, and foundation.
2
Q.
You can answer.
3
A.
I don't know what process was conducted
4 at the State of California. I only know we had more
5 work to do, more unanswered questions. We needed to
6 get documentation for us to support this.
7
At this point, we haven't received
8 any. We were verbally requesting it. There was a
9 acceptance from Mr. Gula to provide documentation.
10
Q.
What was it that you verbally requested?
11
A.
We asked to see the copies of these
12 contracts, and that would be reference to the State
13 of California, and also his manufacturer.
14
Q.
I know you followed up with Mr. Gula
15 about some other documentation by e mail.
16
Did you follow one about this
17 document that you supposedly requested during that
18 non recorded call by e mail as well?
19
MR. ORSECK: Object to form.
20
Q.
You can answer.
21
A.
The e mail that was a follow up to our
22 conversation, and it just reminded him to send us
Page 203
1
Page 204
MR. WHITE: I think you have to hit
2 the refresh button to get the new one to show up.
3
MR. ORSECK: Right. Thank you.
4
A.
Mr. White, I'm going to go ahead and
5 read it and refresh my memory on this.
6
Q.
Sure. That's fine, Mr. Evinger. For
7 reference, everything after the top two-thirds of
8 the first page is something we've already looked at,
9 but you're welcome to refresh your recollection.
10
A.
Okay.
11
12
13
Q.
A.
Q.
Have you reviewed it, Mr. Evinger?
Yes, I have.
The second e-mail down is from
14 Mr. Brough indicating that you and he had spoken to
15 Mike Gula; do you see where I am?
16
A.
Yes, I do.
17
Q.
Mr. Brough writes, "We called Peter to
18 bring him up to speed. Peter also thinks it's a
19 scam."
Is that Peter Fitzgerald?
A.
That is Peter Fitzgerald.
20
21
22
Q.
What scam did Peter Fitzgerald think it
Page 205
1 the contracts for us. So we did follow up with that
1 was?
2 request. That was shortly after we got off the
3 phone with him.
4
MR. WHITE: Can you go to Tab 3,
5 please. This is March 25 e-mail, BFM13445.
6
I'm sorry, Greg. That's -- in the
7 interest of time, let's skip that and go to what is
8 our Tab 4, March 25 e-mail from Ms. Schoeppe to
9 Mr. Brough with Mr. Evinger copied.
10
I think it's already Plaintiffs
11 Exhibit 17.
12
MR. COLWILL: Yes.
13 (Previously marked Plaintiff Exhibit 17, e-mail
14 3.25.2020, CBB00000761-63, was presented.)
15 BY MR. WHITE:
16
Q.
Mr. Evinger, you should be able to see
17 that now.
18
A.
I'm in the folder. I see it. It's
19 Exhibit 17?
20
Q.
Correct.
21
MR. ORSECK: Sorry. Mine's still
22 just showing the same Exhibit 46.
2
MR. ORSECK: Objection. Foundation.
3
A.
Mr. White, I don't know what Peter was
4 thinking about that. I would surmise that, you
5 know, we all sort of had unanswered questions.
6
MR. ORSECK: No, no, no, no. Don't
7 surmise. The question is do you know. So you need
8 to testify to your own knowledge.
9
A.
Pardon me.
10
MR. WHITE: Allow him to finish his
11 answer.
12
Q.
Go ahead, Mr. Evinger. Go ahead.
13 Finish your --
14
A.
I don't know what Peter Fitzgerald meant
15 by it was a scam.
16
Q.
You were part of the conversation with
17 Mr. Fitzgerald; correct?
18
A.
I was on the phone with him, yes.
19
Q.
Did he -- is Mr. Brough correct here,
20 that Mr. Fitzgerald said he thought it was a scam?
21
A.
I think there were -- all of us had
22 unanswered questions, and I think all of us were
52 (Pages 202 - 205)
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