Opinion
No. 3:15-CV-243(MPS)
06-04-2018
UNITED STATES OF AMERICA, Plaintiff, v. DIANE M. GARRITY, PAUL G. GARRITY, JR., and PAUL M. STERCZALA, as fiduciaries of the Estate of Paul G. Garrity, Sr., Defendants.
RULING ON OBJECTIONS TO PROPOSED TRIAL EXHIBITS
Following the pretrial conference, the parties submitted revised lists of proposed exhibits and objections. (See ECF Nos. 155 and 156.) I have set forth rulings on these objections below, beginning with a general discussion followed by rulings as to each proposed exhibit.
I. General Principles and Observations About the Parties' Objections to Exhibits
A. Defendants' Objections to Plaintiffs' Proposed Exhibits
The Defendants object to virtually all of Plaintiff's proposed exhibits on four grounds: authenticity, hearsay, that they are "selective and not complete," and relevance.
1. Authenticity
"To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). "Rule 901 does not erect a particularly high hurdle, and that hurdle may be cleared by circumstantial evidence." United States v. Tin Yat Chin, 371 F.3d 31, 37 (2d Cir. 2004) (citation and internal quotation marks omitted). Rule 901's requirements are "satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification." Crawford v. Tribeca Lending Corp., 815 F.3d 121, 126 (2d Cir. 2016) (internal quotations and citation omitted). "Once Rule 901's requirements are satisfied, the evidence's persuasive force is left to the jury." Tin Yat Chin, 371 F.3d at 38. (internal quotation marks omitted). Indeed, once the threshold for authenticity is met, "the other party . . . remains free to challenge the reliability of the evidence to minimize its importance, or to argue alternative interpretations of its meaning, but these and similar other challenges go to the weight of the evidence—not to its admissibility." Id. (citation omitted) (emphasis in original).
Rule 901 provides a non-exhaustive list of ways to authenticate evidence. For example, a party may use a "comparison with an authenticated specimen by . . . the trier of fact" to establish authenticity. Fed. R. Evid. 901(b)(3). Under this provision, fact-finders may compare signatures among documents to determine authenticity. See, e.g., Stiles Mach., Inc. v. Lestorti, No. 3:05 CV 397 (JGM), 2007 WL 2099218, at *7 (D. Conn. July 17, 2007) (noting that the "persuasive force of the signature above [defendant]'s name is a decision that lies with the trier of fact" but that "the trier of fact may authenticate the handwriting by comparing the specimens of his writing which have been authenticated").
"The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances," may also satisfy the authentication requirement. Fed. R. Evid. 901(b)(4). Under this provision, courts have made preliminary determinations of authenticity based on the appearance of records, including foreign records. See, e.g., McQueeney v. Wilmington Tr. Co., 779 F.2d 916, 928-29 (3d Cir. 1985) (holding that the "contents of the documents tend[ed] to support their claim to authenticity" as plaintiff's "Sea Service Records," as they "appear[ed] to be copies of standard official forms," "each [was] signed and dated by the plaintiff," and each included the plaintiff's personal official identification number); United States v. Prevezon Holdings, Ltd., 319 F.R.D. 459, 463 (S.D.N.Y. 2017) (holding that arbitration files obtained from unavailable Russian lawyers could be authenticated because they had distinctive characteristics similar to other records that could be authenticated, such as pages of nonpublic information regarding contracts and bank account numbers). "The specificity, regularity, and official appearance of . . . documents increase the likelihood of their being authentic." McQueeney, 779 F.2d at 929.
Finally, courts have held that the fact that the records were produced by a party in response to a discovery request, "while not dispositive of the issue of authentication, is surely probative." McQueeney, 779 F.2d at 929. See also Burgess v. Premier Corp., 727 F.2d 826, 835-36 (9th Cir. 1984) (holding that "the district court could properly have found that all of the exhibits were adequately authenticated by the fact of being found in [defendant's] warehouse").
In this case, as noted below in the specific rulings, the documents whose authenticity defendants challenge include records bearing the signature and/or initials of Mr. Garrity, Sr., and/or his sons—and those signatures, which appear to be by the same person(s), are also contained in other records to which Defendants do not object. See, e.g., Exs. 25 (signed by Kevin Garrity, and to which Defendants do not object), 61 (will signed by Mr. Garrity and submitted to the Court at ECF No. 115-13), and 99 (promissory notes signed by Mr. Garrity and submitted to the Court at ECF No. 115-11). Other documents include the same bank account number and appear to be records of the same bank as to which Defendants have made judicial admissions in their answer; appear to be records of the same foundation, and bear the same dates, about which Defendants have made judicial admissions in their answer; and provide evidence of the same "shared signature authority" about which defendants have made judicial admissions in their answer. See ECF No. 9 ¶¶ 7, 8, and 21. Further, Plaintiff has represented that all of these documents were produced by Defendants after the documents were obtained from the foundation or "after Defendants' counsel travelled to Liechtenstein and obtained it directly from" the bank that served as the foundation's agent. See ECF No. 155 at 1-2. Defendants have not contested this representation.
2. Hearsay
Defendants have also made hearsay objections to several of the exhibits. The following general principles inform the Court's specific ruling on each of the hearsay objections. Hearsay is defined as an out-of-court statement that "a party offers in evidence to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c). Many of the documents to which Defendants have lodged hearsay objections consist of statements that are offered not to prove their truth but to prove other things, such as whether Paul Garrity, Sr. had an interest in or authority over a foreign financial account or whether he acted willfully in failing to report that account. (Should either party request in writing a limiting instruction as to any such documents indicating that the jury may not consider the statements within the document for their truth but only for some other limited purpose, the Court will give such an instruction.) Further, other documents consist of statements that are directions or requests and thus are not hearsay. See, e.g., United States v. Kuthuru, 665 Fed. Appx. 34, 38 (2d Cir. Nov. 3, 2016) ("Questions and commands are ordinarily not hearsay because they are not offered for the truth of the matter asserted . . . .").
3. "Selective and Not Complete"
Defendants have also objected to some of the exhibits on the ground that they "are selective and not complete." To the extent this is an evidentiary objection, it appears to invoke the "rule of completeness" set forth in Rule 106 of the Federal Rules of Evidence, which states that "[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time."
The common-law doctrine of completeness, on which Rule 106 is based, likewise requires that a full document or set of documents be introduced: [W]hen one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible. We have interpreted Rule 106 to require that a document be admitted when it is essential to explain an already admitted document, to place the admitted document in context, or to avoid misleading the trier of fact. Underlying Rule 106, then, is a principle of fairness requiring the introduction of an entire or related document if necessary for the fair and impartial understanding of the admitted portion or document.Phoenix Assocs. III v. Stone, 60 F.3d 95, 102 (2d Cir. 1995) (internal citations and quotation marks omitted).
As Plaintiff points out, however, Defendants fail to elaborate on what they mean by "selective" or "not complete" and, more pointedly, fail to identify what other documents or portions of documents "in fairness ought to be considered at the same time." Defendants were aware that Plaintiff had identified these failures in an earlier version of the lists of exhibits and objections filed on the docket, and have still declined to elaborate on this objection. Accordingly, because the Court cannot sustain an objection the grounds for which are not adequately specified, this objection is overruled in its entirety—and no specific ruling will be set forth in the table below—unless the document itself makes it apparent to the Court that it is incomplete. As explained in the table below, however, the Court has admitted certain of Defendants' proposed exhibits based on the rule of completeness.
4. Relevance
Defendants do not explain their relevance objections and some of them—for example, objections to tax filings by the Estate acknowledging that Mr. Garrity was the owner of the same foreign entity that is the subject of the Government's allegations—appear to be without an arguable basis in law or fact. In any event, and keeping in mind that "Rule 401 sets a very low standard for relevance," United States v. Shkreli, 15-CR-637 (KAM), 2017 WL 3623626, at *2 (E.D.N.Y. June 24, 2017) (internal quotation marks omitted), the Court sets forth specific rulings as to Defendants' relevance objections below.
B. Plaintiff's Objections to Defendants' Proposed Exhibits
In the specific rulings below, the Court has sustained several of Plaintiff's objections for reasons explained more fully in its rulings on the motions in limine, familiarity with which is assumed. The Court has also taken into account that the Government is seeking to introduce documents concerning the Liechtenstein entity and account, as well as the distributions from that account, and has overruled some of the Plaintiff's objections on completeness grounds. Other rulings as to specific documents are set forth below.
II. The Court's Rulings on Specific Proposed Exhibits
The following rulings are informed by the principles set forth above and respond to the parties' updated lists of exhibits and objections entered on the docket as ECF Nos. 155 and 156.
| Rulings on Objections to Proposed Exhibits | |
|---|---|
| Plaintiff's Proposed Exhibits | |
| Exhibit Number | Ruling |
| 2 | OVERRULED - Authenticity: Signature of Mr. Garrity, produced byDefendants, Answer para. 8 (Lion Rock became client of BIL AG inNovember 1989, consistent with information on this document), Answerpara. 21 (Mr. Garrity had an interest in and shared signatory authority overLion Rock); Hearsay - not offered for truth, instructions |
| 3 | OVERRULED - Authenticity: Signature and initials of Mr. Garrity,produced by Defendants, Answer paras. 7 & 8 (Lion Rock established inNovember 1989, consistent with date shown on document; upon Mr.Garrity's death, assets distributed to Kevin, Paul, Jr., and Sean Garrity),Answer para. 21; Hearsay - not offered for truth (and, to the extent it is,constitutes admission by party's predecessor, as Mr. Garrity signed andinitialed); ancient documents exception also applies, FRE 803(16) |
| 4 | OVERRULED - Authenticity: Initials of Mr. Garrity, produced byDefendants, Answer para. 7 (Lion Rock established in November 1989, |
| consistent with date shown on document), Answer para. 21; Hearsay - notoffered for truth (and, to the extent it is, constitutes admission by party'spredecessor, as Mr. Garrity initialed); ancient documents exception alsoapplies, FRE 803(16) | |
| 6 | OVERRULED - Authenticity: signature of Mr. Garrity, produced byDefendants, Answer para. 8 (Lion Rock became client of BIL AG inNovember 1989, consistent with the information on document), Answerpara. 21; Hearsay - not offered for truth (and, to the extent it is, constitutesadmission by party's predecessor, as Mr. Garrity signed); ancientdocuments exception also applies, FRE 803(16) |
| 7 | OVERRULED - Authenticity: signature of Mr. Garrity, produced byDefendants, Answer paras.7, 8, and 21; Hearsay - not offered for truth;ancient documents exception also applies, FRE 803(16) |
| 8 | OVERRULED - Authenticity: signature of Mr. Garrity, produced byDefendants, Answer paras. 7, 8, and 21; Hearsay - not offered for truth;signed by party's predecessor; ancient documents exception also applies,FRE 803(16) |
| 11 | OVERRULED - Authenticity: signature & initials of Mr. Garrity,produced by Defendants, Answer paras. 7, 8, and 21, Exhibit #3; Hearsay -not offered for truth; signed by party's predecessor; ancient documentsexception also applies, FRE 803(16) |
| 14 | OVERRULED - Authenticity: signature & initials of Mr. Garrity,produced by Defendants, Answer paras. 7, 8, and 21, Exhibit #11; Hearsay- not offered for truth; signed by party's predecessor; ancient documentsexception also applies, FRE 803(16) |
| 17 | OVERRULED - Authenticity: signature of Mr. Garrity, produced byDefendants, Answer paras. 8 and 21; Hearsay - not offered for truth;signed by party's predecessor |
| 18 | OVERRULED - Authenticity: signature of Mr. Garrity, produced byDefendants, Answer para. 21; Hearsay - not offered for truth; signed byparty's predecessor |
| 19 | OVERRULED - Authenticity: signature of Mr. Garrity, produced byDefendants, Answer paras. 7, 8, and 21; Hearsay - not offered for truth;signed by party's predecessor; ancient documents exception also applies,FRE 803(16) |
| 20 | OVERRULED - Authenticity: signature & initials of Mr. Garrity,produced by Defendants, Answer paras. 7 & 8 (including reference indocument to same account number admitted in answer); Hearsay - notoffered for truth; ancient documents exception also applies, FRE 803(16) |
| 21 | OVERRULED - Authenticity: signature of Mr. Garrity, produced byDefendants, Answer paras. 8 (including reference in document to same |
| account number admitted in answer) and 21; Hearsay - not offered fortruth; ancient documents exception also applies, FRE 803(16) | |
| 22 | OVERRULED - Authenticity: signature of Mr. Garrity, produced byDefendants, Answer para. 21; Hearsay - not offered for truth; signed byparty's predecessor; ancient documents exception also applies, FRE803(16) |
| 23 | OVERRULED - Authenticity: signatures of Kevin and Sean Garrity;produced by Defendants, Answer para. 8 (including reference in documentto same account number admitted in answer); Hearsay - not offered fortruth; ancient documents exception also applies, FRE 803(16) |
| 24 | OVERRULED - Authenticity: signatures of Kevin and Sean Garrity;produced by Defendants, Answer para. 8 (reference to BIL), ex. 23;Hearsay - not offered for truth; ancient documents exception also applies,FRE 803(16) |
| 26 | OVERRULED - Authenticity: signature of Mr. Garrity, produced byDefendants, Answer paras. 8 & 21; Hearsay - not offered for truth; signedby party's predecessor |
| 27 | OVERRULED - Authenticity: signature of Mr. Garrity, produced byDefendants, Answer paras. 8 & 21; Hearsay - not offered for truth; signedby party's predecessor |
| 28 | OVERRULED - Authenticity: signature of Mr. Garrity, produced byDefendants, Answer paras. 8 & 21; Hearsay - not offered for truth; signedby party's predecessor; ancient document rule also applies, FRE 803(16) |
| 29 | OVERRULED - Authenticity: signature and initials of Mr. Garrity,produced by Defendants, Answer para. 21; Hearsay - not offered for truth;signed by party's predecessor; ancient document rule also applies, FRE803(16) |
| 31 | OVERRULED - Authenticity: produced by Defendants, Exhibits 27-29(invoices correspond to trust agreement and letters of instruction); Hearsay- not offered for truth; signed by party's predecessor; ancient documentrule also applies, FRE 803(16) (except as to last page of exhibit) |
| 32 | OVERRULED - Authenticity: produced by Defendants, Answer para. 8(including account number); Hearsay - not offered for truth; ancientdocument rule also applies, FRE 803(16) |
| 34 | OVERRULED - Authenticity: signature of Mr. Garrity, produced byDefendants, Answer para. 21; Hearsay - signed by party's predecessor(and first sentence is not offered for truth) |
| 35 | OVERRULED - Authenticity: produced by Defendants, Answer para. 21,Exhibit 34; Hearsay - statements by agents of Mr. Garrity (party'spredecessor) within the scope of the agency (considering, for example,Exhibits 2, 8, and 34), FRE 801(d)(2)(D) |
| 36 | OVERRULED - Authenticity: signed by Mr. Garrity, produced byDefendants, Answer paras. 8 (Account No.) & 21, Exhibits 34 & 35;Hearsay - signed by party's predecessor |
| 37 | OVERRULED - Authenticity: signed by Mr. Garrity & sons, produced byDefendants, Answer para. 21; Hearsay - not offered for truth; signed byparty's predecessor |
| 38 | OVERRULED - Authenticity: signed by Mr. Garrity, produced byDefendants, Answer para. 21; Hearsay - not offered for truth, signed byparty's predecessor, statements by agents of Mr. Garrity (party'spredecessor) within the scope of the agency |
| 39 | OVERRULED - Authenticity: signed by Mr. Garrity, produced byDefendants, Answer para. 21; Hearsay - not offered for truth, signed byparty's predecessor |
| 40 | OVERRULED - Authenticity: produced by Defendants, Answer para 8(Account No.); Hearsay - not offered for truth, statements by agents of Mr.Garrity (party's predecessor) within the scope of the agency (considering,for example, Exhibits 2, 8, and 14), FRE 801(d)(2)(D) |
| 41 | OVERRULED - Authenticity: signed by Mr. Garrity, produced byDefendants, Answer paras. 8 (account no.) and 21; Hearsay - not offeredfor truth, signed by party's predecessor, statements by agents of Mr.Garrity (party's predecessor) within the scope of the agency (considering,for example, Exhibits 2, 8, and 14), FRE 801(d)(2)(D); but, to the extentthat the attached "Statement of Assets" document is being offered, theCourt SUSTAINS the hearsay objection as to the narratives set forth in"general information" and the historical narrative under "Total Securities",inasmuch as it is not clear that reporting that historical information waswithin the scope of the agency. Plaintiff may offer a redacted version ofthis document. |
| 42 | OVERRULED - Authenticity: produced by Defendants, Answer para 21;Hearsay - statements that may be offered for truth are by party'spredecessor; statements under "declaration of acceptances" are not offeredfor truth and are made by agents of Mr. Garrity (party's predecessor)within the scope of the agency (considering, for example, Exhibits 2, 8,and 14), FRE 801(d)(2)(D) |
| 45 | OVERRULED - Authenticity: produced by Defendants, Answer paras. 7(reference to year in which Lion Rock established) and 8 (account number,bank), ex. 41; Hearsay - not offered for truth, statements by agents of Mr.Garrity (party's predecessor) within the scope of the agency (considering,for example, Exhibits 2, 8, and 14), FRE 801(d)(2)(D); to the extent thatthe attached "Statement of Assets" document is being offered, the CourtSUSTAINS the hearsay objection as to the narratives set forth in "generalinformation" and the historical narrative under "Total Securities",inasmuch as it is not clear that reporting that historical information waswithin the scope of the agency and that information may be considered fortruth. Plaintiff may offer a redacted version of this document. |
| 46 | OVERRULED - Authenticity: produced by Defendants, Answer paras. 7(reference to year in which Lion Rock established) and 8 (account number,bank); Hearsay - statements by agents of Mr. Garrity (party's predecessor)within the scope of the agency (considering, for example, Exhibits 2, 8, |
| and 14), FRE 801(d)(2)(D); to the extent that the attached "Statement ofAssets" document is being offered, the Court SUSTAINS the hearsayobjection as to the narratives set forth in "general information" and thehistorical narrative under "Total Securities", inasmuch as it is not clear thatreporting that historical information was within the scope of the agencyand that information may be considered for truth. Plaintiff may offer aredacted version of this document. | |
| 47 | OVERRULED - Authenticity: produced by Defendants, Answers paras. 7(reference to year in which Lion Rock established) and 8 (account number,bank); Hearsay - statements by agents of Mr. Garrity (party's predecessor)within the scope of the agency (considering, for example, Exhibits 2, 8,and 14), FRE 801(d)(2)(D); to the extent that the attached "Statement ofAssets" document is being offered, the Court SUSTAINS the hearsayobjection as to the narratives set forth in "general information" and thehistorical narrative under "Total Securities", inasmuch as it is not clear thatreporting that historical information was within the scope of the agencyand that information may be considered for truth. Plaintiff may offer aredacted version of this document. |
| 48 | OVERRULED - Authenticity: produced by Defendants, Answers paras. 7(reference to year in which Lion Rock established) and 8 (account number,bank); Hearsay - statements by agents of party within the scope of theagency (considering, for example, Exhibits 2, 8, and 14), FRE801(d)(2)(D); to the extent that the attached "Statement of Assets"document is being offered, the Court SUSTAINS the hearsay objection asto the narratives set forth in "general information" and the historicalnarrative under "Total Securities", inasmuch as it is not clear that reportingthat historical information was within the scope of the agency and thatinformation may be considered for truth. Plaintiff may offer a redactedversion of this document. |
| 50 | OVERRULED - Authenticity: produced by Defendants, Answer para. 8(account number, bank), Ex. 14 (beneficial owners); Hearsay - not offeredfor truth, statements by agents of party within the scope of the agency(considering, for example, Exhibits 2, 8, and 14), FRE 801(d)(2)(D). |
| 51 | OVERRULED - Authenticity: produced by Defendants, Answer para. 8(bank, account no.), Ex. 14 (beneficial owners); Hearsay - not offered fortruth, statements by agents of party within the scope of the agency(considering, for example, Exhibits 2, 8, and 14), FRE 801(d)(2)(D). |
| 52 | OVERRULED - Authenticity: produced by Defendants, Answer para. 8(bank, liquidation after death of Paul Garrity and distribution to sons), Ex.14 (beneficial owners); Hearsay - not offered for truth (because defendantsalready judicially admitted that the funds were liquidated and distributed tothe sons after Mr. Garrity's death), statements by agents of party within thescope of the agency (considering, for example, Exhibits 2, 8, and 14), FRE801(d)(2)(D). |
| 53 | OVERRULED - Authenticity: produced by Defendants, Answer para. 8(bank, account number, liquidation after death of Paul Garrity and |
| distribution to sons), Ex. 14 (beneficial owners); Hearsay - not offered fortruth (because defendants already judicially admitted that the funds wereliquidated and distributed to the sons after Mr. Garrity's death), statementsby agents of party within the scope of the agency (considering, forexample, Exhibits 2, 8, and 14), FRE 801(d)(2)(D). | |
| 54 | OVERRULED - same as ruling as to Exhibit 53 |
| 56 | OVERRULED - Relevance: Goes to Mr. Garrity's mental capacity todispose of his property in the period leading up to his death; Hearsay: notoffered for truth, signed by party's predecessor |
| 57 | OVERRULED - Relevance: Goes to Mr. Garrity's mental capacity todispose of his property in the period leading up to his death |
| 63 | The Court will reserve ruling on this document until the time of trial as itsrelevance depends on some foundational evidence that Mr. Garrity hadsome role in reviewing, preparing, signing or authorizing the filing of thisdocument. |
| 64 | The Court will reserve ruling on this document until the time of trial as itsrelevance depends on some foundational evidence that Mr. Garrity hadsome role in reviewing, preparing, signing, authorizing or otherwiseparticipating in the filing of FBAR reports on behalf of Garrity Industriesin the years in question or in general. |
| 65 | OVERRULED - Relevance: goes to Mr. Garrity's knowledge of FBARrequirement for foreign accounts. |
| 66 | OVERRULED - Relevance: goes to willfulness for the reasons describedin the Government's response to Defendants' objection (ECF No. 155 at25). |
| 67 | OVERRULED - Relevance: Shows the return in Exhibit 66 was deliveredto Mr. Garrity and is thus relevant for the same reasons as Exhibit 66. |
| 70 | OVERRULED - This document is obviously relevant, as it shows Mr.Garrity e-filed his 2005 tax return, the very tax year at issue in this case. |
| 74 | OVERRULED - Relevance: The document is relevant for the reasonsstated in the Plaintiff's response to the Defendants' objection. See ECFNo. 155 at 26. |
| 75 | OVERRULED - Relevance: Defendants have asserted that they intend tocontest the issue whether Paul Garrity had a reportable interest or authorityin a foreign financial account in 2005. This document is an admission byhis estate - a party in this action - that he and/or his estate did have suchan interest or authority in 2008. It is therefore relevant, especially becauseit appears to identify the same account that is the subject of the Plaintiff'sallegations concerning 2005. |
| 78 | OVERRULED - Relevance: The document is relevant for the reasonsstated in the Plaintiff's response to the Defendants' objection, includingbecause Defendants are contesting that Mr. Garrity had an interest in orauthority over a foreign financial account. See ECF No. 155 at 27. |
| 79 | OVERRULED - Relevance: The document is relevant for the reasonsstated in the Plaintiff's response to the Defendants' objection, including |
| because Defendants are contesting that Mr. Garrity had an interest in orauthority over a foreign financial account. See ECF No. 155 at 27-30. | |
| 80-94 | OVERRULED - see ruling as to #79 |
| 95 | OVERRULED - Relevance: The document goes to Mr. Garrity's mentalcapacity and ability to dispose of his property and manage his affairs at therelevant time and thus, ultimately, willfulness. |
| 101-02 | OVERRULED - Relevance: As long as a foundation is laid that Mr.Sterczala in fact prepared these documents, they are relevant to Mr.Garrity's mental capacity and ability to dispose of his property and managehis affairs at the relevant time and thus, ultimately, willfulness. |
| 103 | OVERRULED - Relevance: The document is relevant for the reasonsstated in the Plaintiff's response to Defendants' objection. ECF No. 155 at31. |
| 104 | OVERRULED - Relevance: The document is relevant to Mr. Garrity'smental capacity and ability to dispose of his property and manage hisaffairs at the relevant time and thus, ultimately, willfulness. |
| Defendants' Proposed Exhibits | |
|---|---|
| Exhibit Number | Ruling |
| 502 | SUSTAINED in part - Relevance and 403: An expert may rely oninformation not itself admissible in evidence if other experts in the fieldwould rely on the same type of information. That is, Dr. Fenstermakermay rely on and refer to the records without the entire document - which isextremely large and includes records relating to, among other things, Mr.Garrity's knee - coming in to evidence. If there are relevant portions ofthe document Defendants wish to introduce into evidence that pertain tothe issues in the case - for example, whether Mr. Garrity's health conditionshows that he did not act willfully - Defendants may designate thoseportions, no later than 24 hours before they are introduced into evidence,and introduce only those portions designated as being Exhibit 502A. |
| 507 | SUSTAINED - Hearsay: The document is written by Mr. Garrity andbeing offered by his estate and describes his background, his business, hissons' roles in the business, and sources of discord between him and his sonKevin concerning the business. Relevance: Some of this background maybe relevant (for example, his level of business sophistication may havesome relevance to his understanding of tax issues and his role as chairmanof Garrity industries may be have some relevance to understandinginvoices being offered by the Government) - but other parts, such as hismilitary background and the details to changes to the family's insurancepolicies, are not relevant. That said, it is possible that the Court will haveto revisit some or all of this ruling should it conclude that Kevin musttestify and that the jury may draw an adverse inference from anyinvocation by him of the Fifth Amendment. |
| 508 | SUSTAINED - Hearsay - parts of the document, including that Mr.Garrity refused to speak with his son Kevin about the family business,appear to be offered for the truth of the statements made, although parts do |
| not appear to be offered for truth. Relevance: A dispute between Mr.Garrity and his son Kevin about who would have the title andresponsibilities of CEO of Garrity Industries is not relevant to the issues inthis case and, to the extent it is, its minimal probative value is substantiallyoutweighed by the danger of misleading the jury. As noted with respect to#507, however, it is possible the Court will revisit this ruling if itconcludes that Kevin must testify and if he invokes the Fifth Amendment. | |
| 509 | SUSTAINED - Hearsay: An expert report is not admissible as it is hearsayand should in any event not be necessary because the expert will testify. |
| 518 | SUSTAINED - Relevance/403: The form indicates that it was revised inJanuary 2012, years after Mr. Garrity died. The arguments raised byDefendants in ECF No. 156 are similar to those raised in support of thetestimony of Howard Epstein, and are rejected for reasons similar to thoseset forth in the Court's ruling excluding Mr. Epstein's testimony, i.e.,wrong state-of-mind standard, no evidence connecting published IRSguidance (or lack thereof or changes thereto) to Mr. Garrity, legalconclusions, confusing to the jury, etc. |
| 519 | SUSTAINED - Hearsay/Court's ruling on Epstein testimony |
| 520 | SUSTAINED - Relevance/403/Court's ruling on Epstein testimony; this islegal material; also, this document does not appear to address the reportingrequirement at issue in this case |
| 527 | SUSTAINED - Relevance/403/Court's ruling on Epstein testimony; this islegal material |
| 529 | SUSTAINED - Relevance/403/Court's ruling on Epstein testimony |
| 531 | SUSTAINED - Relevance/403/Court's ruling on Epstein testimony |
| 532 | SUSTAINED - Relevance/403/Court's ruling on Epstein testimony |
| 533 | SUSTAINED - Relevance/403/Court's ruling on Epstein testimony |
| 534 | SUSTAINED - Relevance/403/Court's ruling on Epstein testimony; also,this is just a web cover page and does not say anything substantive aboutFBAR reporting requirements |
| 536 | SUSTAINED - Relevance/403/Court's ruling on Epstein testimony (and,especially, no evidence connecting the document to Mr. Garrity) |
| 541 | OVERRULED - Unless the Plaintiff can show that the document waswrongly withheld in response to a discovery request - which it has notdone to date - the fact that it was not previously produced is not a basis toexclude it. Relevance: The document appears to have some relevance toMr. Garrity's role at Garrity Industries, his sophistication about businessand tax matters, and, to the extent this becomes relevant at trial (if, forexample, Kevin and Sean testify and take the Fifth and the Court gives anadverse inference instruction), the relationships with family members |
| 543 | OVERRULED - Unless the Plaintiff can show that the document waswrongly withheld in response to a discovery request - which it has notdone to date - the fact that it was not previously produced is not a basis toexclude it. The document is relevant because it provides some evidenceabout Mr. Garrity's mental capacities in 2005. |
| 544 | SUSTAINED - Relevance: Defendants fail to explain how the documentrelates to this case. With regard to the Eighth Amendment issue, which theparties agree the Court will decide, the Court assumes that the Plaintiff willnot object to the Court's taking judicial notice of this document, as well asfilings in the related trust case, for purposes of deciding the EighthAmendment issue. Although the Defendants suggest in ECF No. 156 thatthis document also somehow relates to Lion Rock and distributions fromLion Rock, the document makes no mention of Lion Rock or any suchdistributions and thus Defendants have thus failed to sustain their burdenof showing why the document is relevant. To the extent the document hassome relevance, its minimal probative value is outweighed by the dangersof confusing the issues and misleading the jury, as the dollar figures it setsforth do not appear to relate to the FBAR penalties. |
| 549 | SUSTAINED - Hearsay: The former testimony exception for unavailabledeclarants does not appear to apply because, among other reasons, thestatements do not appear to have been "testimony," i.e., there is noindication on the document that Mr. Garrity was under oath and thedocument itself and defendants' exhibit list refer to the discussion as an"interview." |
| 550 | SUSTAINED - Hearsay: The former testimony exception for unavailabledeclarants does not appear to apply because, among other reasons, thestatements do not appear to have been "testimony," i.e., there is noindication on the document that Mr. Garrity was under oath and thedocument itself and defendants' exhibit list refer to the discussion as an"interview." |
| 551 | SUSTAINED - Relevance/403: This material is excluded for reasonssimilar to those for which the Court granted the Government's motion inlimine concerning the pre-suit IRS examination. This is a de novoproceeding at which the Government will have to prove that Mr. Garritywillfully failed to disclose a foreign financial account. The notes of theRevenue Agent during the IRS's pre-suit investigation (or assessmentexamination) are simply not relevant and, to the extent they have someminimal probative value, pose a substantial danger of confusing the issuesand misleading the jury. The document also reflects statements by othersand thus includes inadmissible hearsay. |
| 563 | SUSTAINED - Relevance/403 - see ruling as to Exhibit 551 - also, thisdocument speaks mainly to the foreign trust issues and does not show, asdefendants suggest, that the revenue agent has devised a "false inference" |
| 564 | SUSTAINED - see ruling on Exhibit 563 |
| 572 | SUSTAINED - 403 - The document is in German. Nonetheless, if thedefendants can procure a certified translation and the document isotherwise relevant and admissible, the Court will admit it. |
| 575 | OVERRULED - In the interests of completeness (and because Plaintiffhas offered so many documents from the Liechtenstein bank), the Courtwill admit this document with a limiting instruction (assuming Plaintiff |
| requests one) that the statements set forth in the document may not beconsidered for their truth. | |
| 576 | OVERRULED - see ruling on Exhibit 575 |
| 580 | SUSTAINED - 403 - The document is in German. Defendants point outthat there are a few English words on the document, but the meaning ofthose words is difficult to decipher (and thus confusing) absent anunderstanding of German. |
| 584 | OVERRULED - Although part of the document is in German, enough of itis in English that it may have some probative value. The Court will notadmit Defendants' proposed translation of the German text unless it iscertified. |
| 585 | SUSTAINED - Hearsay/403: The document contains out-of-courtstatements that are plainly offered for their truth. Worse, it does not evenidentify the speaker of the critical statement (on the version presented tothe Court, the name of the recipient of the first email and sender of thesecond is redacted or otherwise not shown), depriving the factfinder of anyability at all to assess the credibility of the statement. |
| 590 | SUSTAINED - see ruling as to Exhibit 551 |
| 596 | OVERRULED in part/SUSTAINED in part - Relevance: The distributionto the sons of Mr. Garrity is described in the complaint and therefore hassome relevance (for example, in showing that the distribution occurred asMr. Garrity contemplated in the original Lion Rock documents, whichdescribe the three sons as "second beneficiaries" upon the death of Mr.Garrity). (See Compl. Para. 8). Hearsay: As for the hearsay objection,many of the statements consist of instructions and requests, which are nothearsay because they are not offered for truth. Nonetheless, some of thestatements in Kevin Garrity's 1/26/09 email (e.g., "As you know, youdrafted ...") are historical and appear to be offered for truth, and theobjection is sustained as to those statements and other similar historicalstatements in the document. Defendants may redact the document andoffer it accordingly. |
| 600 | SUSTAINED - Relevance/403 - The photo of Mr. Garrity and his wife isundated and includes no writing or other information to show when it wastaken, where it was taken, or the circumstances. The Defendants in theirresponse to the Plaintiff's objection (ECF No. 156) have not suggestedthat, for example, their medical expert relied on the photo to formulate hisopinions or that the photo is otherwise relevant to any issue the jury will bedeciding. In short, the Court is unaware of any fact that is of consequencein determining the action and that would be made more or less probablewith the photo. For example, there does not appear to be any question ordispute in the case about Mr. Garrity's identity or his appearance. Finally,even if it were dated, the photo by itself would not shed light on Mr.Garrity's mental competence when it was taken - at least in the absence ofexpert testimony explaining why. |
| 601 | SUSTAINED - see ruling on Exhibit #600. |
| 602 | SUSTAINED - A matter admitted in a Request to Admit is deemed"conclusively established," Fed. R. Civ. P. 36(b), and thus it is notnecessary or helpful to present the admissions themselves, which aredrafted by lawyers during the pendency of a lawsuit and would thus nototherwise be admissible evidence. To the extent the Defendants identify tothe Court before trial the portions of this document they consider relevant,the Court will consider instructing the jury that any pertinent admissions insuch portions are to be treated as conclusively established. |
"Mr. Garrity" in these rulings refers to Paul Garrity, Sr.
The Court will refer to this judicial admission by the defendants, together with the other admissions in paragraph 21 of the Answer, as "Answer para. 21" in the rulings below. The fact that the answer admits only that Mr. Garrity had an interest in and shared signature authority over Lion Rock in 2005 affects the weight rather than the admissibility of this evidence.
The Court will refer to this judicial admission by the defendants as "Answer para. 7" in the rulings below.
The Court will refer to this judicial admission by the defendants, together with the other admissions in paragraph 8 of the Answer, as "Answer para. 8" in the rulings below. --------
IT IS SO ORDERED.
/s/_________
Michael P. Shea, U.S.D.J. Dated: Hartford, Connecticut
June 4, 2018