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Videotape Deposition of Sean O'Malley — Blue Flame Medical LLC v. Chain Bridge Bank, N.A. (Dkt. 131-9)

Summary

Case 1:20-cv-00658, Document 131-9, is Exhibit 74, the transcript of the remote videotape deposition of Sean O'Malley, taken by Zoom on Tuesday, April 6, 2021, in Blue Flame Medical LLC v. Chain Bridge Bank, N.A. In the pages shown, Mr. Madden questions the witness about anti-money laundering review of the account, including the expected activity Mr. Gula reported in DX-48 and a California wire transfer of just over $450 million. The witness agrees that the wire was six times larger than the monthly total of incoming domestic wires Mr. Gula had reported before account opening. The witness testifies that advance notice the day before the wire is less suspicious, since money laundering typically involves concealment, and calls it speculative to say whether the bank would have opened the account.

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“Videotape Deposition of Sean O'Malley — Blue Flame Medical LLC v. Chain Bridge Bank, N.A. (Dkt. 131-9).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-20-cv-00658-dkt-131-9-e-d-va-04e9a95845/, SHA-256 70bdb869d9fa0f68950a86c2562955f75afcb8fb1a923b918d9921bc60101fbf.

Full text

Case 1:20-cv-00658-LMB-IDD   Document 131-9   Filed 05/07/21   Page 1 of 6 PageID#
                                    2039




                        EXHIBIT 74
Sean O’Malley                     CONFIDENTIAL                                  4/6/2021
 Case 1:20-cv-00658-LMB-IDD   Document 131-9 Filed 05/07/21    Page 2 of 6 PageID#
                                                                              Page 1 (1)
                                     2040

  1                IN THE UNITED STATES DISTRICT COURT

  2                FOR THE EASTERN DISTRICT OF VIRGINIA

  3                           (Alexandria Division)

  4     - - - - - - - - - - - - - - -                 X

  5     BLUE FLAME MEDICAL LLC,                       :

  6          Plaintiff,                               :

  7                   v.                              :    Civil Action No.

  8     CHAIN BRIDGE BANK, N.A.,                      :    1:20-cv-00658

  9     JOHN J. BROUGH and DAVID M.                   :

 10     EVINGER,                                      :

 11          Defendants.                              :      CONFIDENTIAL

 12     _____________________________                 :

 13     CHAIN BRIDGE BANK, N.A.,                      :

 14          Third-Party Plaintiff,                   :

 15                   v.                              :

 16     JPMORGAN CHASE BANK, N.A.,                    :

 17          Third-Party Defendant.                   :

 18     - - - - - - - - - - - - - - -                 X

 19                                      Remote Deposition

 20                                      Tuesday, April 6, 2021

 21                   Videotape deposition via Zoom of SEAN

 22   O'MALLEY, a witness herein, called for examination by

                                 www.trustpoint.one                      800.FOR.DEPO
                               www.aldersonreporting.com                  (800.367.3376)
Sean O’Malley                                           CONFIDENTIAL                                          4/6/2021
 Case 1:20-cv-00658-LMB-IDD                         Document 131-9 Filed 05/07/21            Page 3 of 6 PageID#
                                                                                                          Page 2 (2 - 5)
                                                           2041
                                                           Page 2                                                   Page 4
 1 counsel for Defendants/Third-Party Plaintiff in the               1
                                                                         APPEARANCES (Continued):
 2 above-entitled matter, pursuant to notice, the                    2

 3 witness being duly sworn by MARY GRACE CASTLEBERRY, a             3
                                                                           On behalf of the Defendants/Third-Party
 4 Notary Public in and for the State of Maryland, taken             4
                                                                           Plaintiff Chain Bridge Bank, N.A.:
 5 at 9:32 a.m. EDT, Tuesday, April 6, 2021, and the                 5
                                                                               MATTHEW M. MADDEN, ESQ.
 6 proceedings being taken down by Stenotype by MARY                 6
                                                                               LESLIE ESBROOK, ESQ.
 7 GRACE CASTLEBERRY, RPR, and transcribed under her                 7
                                                                               Robbins Russell Englert, Orseck,
 8 direction.                                                        8
                                                                                Untereiner & Sauber
 9                                                                   9
                                                                               2000 K Street, N.W., 4th Floor
10                                                                  10
                                                                               Washington, D.C. 20006
11                                                                  11
                                                                               (202) 775-4500
12                                                                  12
                                                                               mmadden@robbinsrussell.com
13                                                                  13
                                                                               lesbrook@robbinsrussell.com
14                                                                  14

15                                                                  15

16                                                                  16

17                                                                  17

18                                                                  18

19                                                                  19

20                                                                  20

21                                                                  21

22                                                                  22
                                                           Page 3                                                   Page 5
 1                                                                   1 APPEARANCES (Continued):
     APPEARANCES:
 2                                                                   2

 3                                                                   3    On behalf of the Third-Party Defendant JPMorgan
       On behalf of the Plaintiff Blue Flame Medical
 4                                                                   4    Chase Bank:
       LLC and Mr. O'Malley:
 5                                                                   5       ALBINAS PRIZGINTAS, ESQ.
          JASON MITCHELL, ESQ.
 6                                                                   6       Wilmer Cutler Pickering Hale & Dorr LLP
          ANGIE GARCIA, ESQ.
 7                                                                   7       1875 Pennsylvania Avenue, N.W.
          Schulte Roth & Zabel
 8                                                                   8       Washington, D.C. 20006
          901 15th Street, N.W., Suite 800
 9                                                                   9       (212) 663-6981
          Washington, D.C. 20005
10                                                                  10       albinas.prizgintas@wilmerhale.com
          (202) 729-7476
11                                                                  11          and
          jason.mitchell@srz.com
12                                                                  12       GABRIEL TORRES, ESQ.
          angela.garcia@srz.com
13                                                                  13       JPMorgan Chase
14                                                                  14       Assistant General Counsel
15                                                                  15       383 Madison Avenue
16                                                                  16       New York, New York 10179
17                                                                  17       (212) 270-6000
18                                                                  18

19                                                                  19    ALSO PRESENT:
20                                                                  20      JASON AQUI, Videographer
21                                                                  21

22                                                                  22


                                                      www.trustpoint.one                                  800.FOR.DEPO
                                                    www.aldersonreporting.com                              (800.367.3376)
Sean O’Malley                                  CONFIDENTIAL                                                    4/6/2021
 Case 1:20-cv-00658-LMB-IDD                Document 131-9 Filed 05/07/21                     Page 4 of Page
                                                                                                       6 PageID#
                                                                                                            24 (90 - 93)
                                                  2042
                                                     Page 90                                                         Page 92
 1 hey, we're going to have this wire come in, you              1   THE WITNESS: Expected activity is
 2 should tell the bank in advance, did so.               2 essentially what it states itself to be, what the

 3 BY MR. MADDEN:                                         3 customer expects the general activity to be. And

 4    Q. Do you agree with me that, given the             4 based on my experience, in many instances, there are

 5 expected activity reported by Mr. Gula and reflected   5 circumstances that occur that change that when you're

 6 in DX-48, that Mr. Gula -- you would have expected     6 dealing with actual activity versus expected.

 7 Mr. Gula to promptly inform Chain Bridge Bank as soon  7 BY MR. MADDEN:

 8 as he knew that a $450 million wire -- domestic wire   8    Q. Okay. But my question is whether, when a
 9 transfer was coming into the account; is that fair to  9 bank asks a customer to report its expected activity

10 say?                                                  10 during a due diligence process, it expects that

11        MR. MITCHELL: Object to the form.              11 customer to report only absolute certain activity.

12        THE WITNESS: I would expect him to             12    A. Well, it's reporting what they expect the
13 provide advance notice of the wire transfer coming    13 activity to be. If they do not have certitude about

14 in. Based on the facts I've reviewed, I believe that  14 something happening, they probably won't report it as

15 prior notice was provided being that it was the day   15 expected activity. That would not be surprising to

16 before the wire transfer arrived.                     16 me at all.

17 BY MR. MADDEN:                                        17    Q. Do you agree as a general principle that a
18    Q. And if Mr. Gula knew about the incoming         18 difference in actual activity versus expected
19 $450 million wire transfer at the time he reported to 19 activity can raise red flags under certain

20 Chain Bridge Bank the expected activity that's        20 circumstances?

21 described in Defense Exhibit 48, would that concern   21         MR. MITCHELL: Object to the form.
22 you from an anti-money laundering/BSA perspective?    22         THE WITNESS: Differences in actual
                                                     Page 91                                                         Page 93
 1         MR. MITCHELL: Object to the form.                    1 activity versus expected activity are typically,

 2         THE WITNESS: If Mr. Gula had confirmation            2 based on my experience, evaluated as part of the

 3 that the wire transfer was definitely coming from the        3 periodic review process for customer risk rating and,

 4 state of California, that -- you know, that should           4 upon review, it may or may not impact the risk rating

 5 have been provided when it was an absolute certainty.        5 of the customer profile.

 6 BY MR. MADDEN:                                               6 BY MR. MADDEN:

 7     Q. But not before that?                                  7    Q.   Okay. My question, though, was whether
 8     A. Well, otherwise it's a prospective                    8 you agree that a difference in actual activity versus

 9 transaction. You don't know if it's going to happen.         9 expected activity can raise red flags under certain

10 It's potential business. Nothing is confirmed.              10 circumstances.

11     Q. Well, what Mr. Gula is reporting that's              11         MR. MITCHELL: Object to the form.
12 reflected in Defense Exhibit 48 is expected --              12         THE WITNESS: And the answer I provided
13 expected activity, is he not?                               13 was within the context of my experience. Expected

14         MR. MITCHELL: Object to the form.                   14 activity -- the way that you're phrasing the question

15         THE WITNESS: That is an expected activity           15 appears to be that expected activity will be known

16 form, yes.                                                  16 instantly.

17 BY MR. MADDEN:                                              17         In the vast majority of cases, when you're
18     Q. Right. And it's not your understanding               18 conducting ongoing customer due diligence, you

19 that when a customer reports expected activity, it          19 evaluate the actual activity versus expected activity

20 reports only transactions that have -- that are an          20 at a certain point in time in the future. It is not

21 absolute certainty, is it?                                  21 something that is evaluated instantaneously, you

22         MR. MITCHELL: Object to the form.                   22 know, for each and every customer, you know, as --


                                              www.trustpoint.one                                         800.FOR.DEPO
                                            www.aldersonreporting.com                                     (800.367.3376)
Sean O’Malley                                 CONFIDENTIAL                                                     4/6/2021
 Case 1:20-cv-00658-LMB-IDD               Document 131-9 Filed 05/07/21                      Page 5 of Page
                                                                                                       6 PageID#
                                                                                                            25 (94 - 97)
                                                 2043
                                                    Page 94                                                             Page 96
 1 you know, as it happens.   It's part of the periodic        1 it's larger, much larger.

 2 review process.                                             2    Q.    And earlier we calculated, based on
 3 BY MR. MADDEN:                                              3 Defense Exhibit 48, an average incoming domestic wire

 4    Q. Just a second. Turn if you will to page               4 of $3 million.   Do you recall that?
 5 12 of your rebuttal report, DX-117.                         5    A.    Yes.
 6    A. Yes.                                                  6    Q.    You agree with me that the California wire
 7    Q. I'm reading from the second sentence of               7 transfer was more than 150 times that average

 8 the first full paragraph on that page, the beginning.       8 domestic incoming wire transfer, correct?

 9         MR. MITCHELL: If anyone can hear me,                9    A.    Mathematically, you are correct.
10 my --                                                      10    Q.    Okay. Is that a significant enough
11         MR. MADDEN: I heard somebody. Let's                11 difference in actual activity versus reported

12 go --                                                      12 expected activity to raise red flags in your

13         MR. MITCHELL: Yeah, I think it's okay              13 experience?

14 now. I froze momentarily, but I seem to be back.           14    A.    Looking at the size of the wire transfer
15         MR. MADDEN: Okay. All right.                       15 versus the total activity expected, that's enough to

16 BY MR. MADDEN:                                             16 raise questions that you'd want to get answered.

17    Q. The beginning of that sentence reads,                17    Q.    As you sit here today, do you know for a
18 "While a difference in actual activity versus              18 fact one way or the other whether Chain Bridge Bank

19 expected activity can raise red flags under certain        19 would have opened an account for Blue Flame Medical

20 circumstances."                                            20 if Mr. Gula had disclosed beforehand that he was

21         Do you see that?                                   21 expecting a $450 million-plus wire transfer?

22    A. Yes.                                                 22         MR. MITCHELL: Object to the form.
                                                    Page 95                                                             Page 97
 1     Q. I've been trying to ask you, sir, whether            1        THE WITNESS: That -- to answer would be
 2 it is in fact your opinion that a difference in             2 speculative.

 3 actual activity versus expected activity can raise          3 BY MR. MADDEN:

 4 red flags under certain circumstances. Can you              4     Q. And so you don't know, correct?
 5 answer that question?                                       5     A. I'm not purporting to know what Chain
 6     A. Yes. If it's -- if it's substantial                  6 Bridge Bank would or would not have done regarding

 7 enough, it can raise a red flag, yeah.                      7 opening the account.

 8     Q. Okay. Thank you. You agree with me that              8     Q. If you turn to page 12 of your rebuttal
 9 the California wire transfer of just over $450              9 report, which is Defense Exhibit 117.

10 million was six times larger than what Mr. Gula had        10     A. Isn't that where we are now?
11 told Chain Bridge Bank prior to account opening that       11     Q. Oh, maybe it was. I apologize.
12 he expected to be Blue Flame Medical's average             12     A. That's okay. I just want to make sure
13 monthly total of incoming domestic wires, correct?         13 we're on the same page quite literally.

14          MR. MITCHELL: Object to the form.                 14     Q. Exactly. In any case, page 12 of your
15          THE WITNESS: Yes. The actual wire --              15 rebuttal report that is Defense Exhibit 117. Just

16 size of the wire transfer from California was much         16 let me know when you're there.

17 larger than the expected activity.                         17     A. Yeah. Uh-huh.
18 BY MR. MADDEN:                                             18     Q. Great. Excuse me. I lost my place. Let
19     Q. And you agree with me that when you say             19 me come back to that. I can't find the passage I was

20 much larger, it was six times larger, correct?             20 looking for, so I'll direct you somewhere else.

21     A. Well, for domestic wires. For total                 21        Is it your opinion that Mr. Gula's
22 activity, it's a different ratio. But let's just say       22 disclosure of the size of the California wire the


                                             www.trustpoint.one                                           800.FOR.DEPO
                                           www.aldersonreporting.com                                       (800.367.3376)
Sean O’Malley                                 CONFIDENTIAL                                                    4/6/2021
 Case 1:20-cv-00658-LMB-IDD               Document 131-9 Filed 05/07/21                     Page 6 ofPage
                                                                                                      6 PageID#
                                                                                                          26 (98 - 101)
                                                 2044
                                                   Page 98                                                         Page 100
 1 afternoon of March 25th diffused any red flag that           1 what -- is part of the facts surrounding those

 2 otherwise might have arisen from the difference              2 typologies of money laundering.

 3 between the size of that wire on the one hand and the        3 BY MR. MADDEN:

 4 expected account activity that Mr. Gula had disclosed        4    Q.   Do those typologies of money laundering
 5 that morning before account opening on the other             5 have a name or a category that you refer to in your

 6 hand?                                                        6 profession?

 7    A. As an anti-money laundering professional,              7    A.   Well, the one I'm thinking of in
 8 yes, the fact that Mr. Gula came forth the day before        8 particularly are -- are funnel accounts where an

 9 informing Chain Bridge Bank of the expected wire             9 account will be opened and then left dormant for a

10 transfer means that, okay, if any questions that            10 period of time and then a large wire transfer will be

11 would have come up regarding, hey, why is your              11 sent in typically internationally.

12 expected activity so much larger than your actual           12         These are used primarily by drug kingpins
13 activity, have been addressed.                              13 and transnational crime organizations.    And then once
14        Frequently, in money laundering, the                 14 that one wire hits, it will quickly be sent off in,

15 objective is concealment or obfuscation. That is not        15 you know, various directions and so the effect is

16 the case here. He was forthcoming about the                 16 that the account will be filled and then emptied very

17 transaction in advance.                                     17 rapidly, often before the bank knows really what's

18    Q. But not at account opening, correct?                  18 going on.

19        MR. MITCHELL: Object to the form.                    19    Q. And am I right that a part of that
20        THE WITNESS: Clearly based on the                    20 typology that you're referring to involves not

21 expected transaction amounts, the wire transfer from        21 alerting the bank to the incoming filling transfers

22 California is not included in those numbers.                22 prior to them occurring?
                                                     Page 99                                                       Page 101
 1 BY MR. MADDEN:                                               1
                                                                A. Correct. It's the very fact that the bank
 2     Q. Okay. Why isn't it more suspicious from         2 is unaware and, for all intents and purposes, prior
 3 an anti-money laundering/Bank Secrecy Act              3 to the filling action, as you describe it, it seems

 4 perspective, not less suspicious, that Mr. Gula        4 to be a very sleepy account. There is actually

 5 changed his account activity expectation so            5 little or no -- frequently no transaction activity

 6 significantly in only just a few hours?                6 whatsoever for quite some time.

 7         MR. MITCHELL: Object to the form.              7     Q. Would it increase your level of concern
 8         THE WITNESS: It's less suspicious again        8 from an AML perspective if, hypothetically, at the
 9 because one of the primary objectives in money         9 time Mr. Gula informed the bank of the California

10 laundering is concealment, obfuscation. Anonymity is 10 wire transfer, he had reason to believe that the wire

11 another factor. And if someone was trying to engage   11 transfer was already in process?

12 in activity that I would regard as suspect for money  12         MR. MITCHELL: Objection to the form.
13 laundering, I would expect, based on my professional  13         THE WITNESS: I'm sorry, can you repeat
14 experience, that they would not disclose the fact     14 that again?

15 that they're expecting a very large wire transfer to  15 BY MR. MADDEN:

16 come in.                                              16     Q. Sure can. Would it increase your level of
17         In fact, there are specific typologies of     17 concern from an AML perspective if, at the time
18 money laundering where that very fact is exploited,   18 Mr. Gula informed the bank -- informed the bank of

19 the fact that an account will be open with certain    19 the California wire transfer, he had reason to

20 information and then, without informing the bank, the 20 believe that the wire transfer was already in

21 actual activity will be very different. But it is     21 process?

22 the fact that they don't inform the bank that is      22         MR. MITCHELL: Object to the form.
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