zeekrewardsWith Paul Burks’ criminal trial just three days away and trial briefs field by both parties, objections have been raised regarding proposed expert witnesses.

Paul Burks is objecting to Tucker Greer of Price Waterhouse Coopers. The DOJ are objecting to John White and Morris Aaron.

Paul Burks identifies Tucker Greer as a “computer examiner”.

In his objection, Burks seeks to ‘preclude or limit aspects of Mr. Greer’s anticipated testimony‘ that might fall outside of this scope.

It is readily apparent from Mr. Greer’s background and information provided by the government that he does not have expertise in the areas of finance, mathematics, or predictions.

Nonetheless, the government has stated its intention to have Mr. Greer, among other things, “analyze” dollars paid into the program and testify about the “number of victim-investors.”

The prosecution has also suggested to undersigned counsel that the government may seek to have Mr. Greer testify about “modeling/forecasting” with respect to the ZeekRewards program.

Despite the aforementioned limitations on Mr. Greer’s anticipated testimony to that of a “computer examiner” who reconstructed the company’s databases, the prosecution appears to be intent on having Mr. Greer provide expert testimony on matters that concern financial or mathematical analyses and forecasting.

These types of analyses and forecasting fall well outside of the scope of Mr. Greer’s noticed expertise as a “computer examiner.”

Accordingly, Mr. Burks, through undersigned counsel, moves this Court in limine to preclude or limit Mr. Greer from testifying beyond the scope of a “computer examiner” and about the aforementioned “subject areas.”

In what might be another example of a fishing expedition, Burks is asking for a pre-trial “written summary” of Tucker Greer’s testimony.

The handful of charts and graphs provided by the prosecution, which apparently consist of Mr. Greer’s analyses and predictions about the data in question, are not accompanied by anything resembling his actual opinion.

Rule 16 requires more.

to the extent that the prosecution intends to elicit testimony from Mr. Greer concerning matters beyond how “certain evidence was located and recreated,” Mr. Burks, through undersigned counsel, requests that the Court direct the prosecution to provide Mr. Greer’s actual opinion(s) and bases for his opinion(s) regarding those “subject areas,” as well as any additional background or experience to support his putative expert testimony.

He’s also asked the court to prohibit Greer from using the terms “investment” and “interest”, ‘based on the anticipated scope of his testimony as a “computer examiner”‘.

Burks wants the terms “victim-investors”, “winners” and “losers” off-limits too.

These are not terms or labels found in the company data that Mr. Greer was tasked with analyzing.

Instead, these are terms and labels that the prosecution has applied to matters that are for the jury to decide.

I will say that they might indeed not be terms found in “company data”, however they do accurately describe the different classes of affiliates who participated in Zeek Rewards.

Not that substitutes aren’t readily available. Greer could replace “victim-investor” with “Zeek Rewards affiliates”, “winners” with “affiliates who made money” and “losers” with “affiliates who lost money”.

The statistics these terms would be used present should be damning enough.

Finally, Burks also wants clarified the specific role in which Greer will deliver his expert testimony.

It is not entirely clear how the prosecution intends to use Mr. Greer.

However that is resolved, the potential dangers that exist when a witness’ role is conflated can prejudice a defendant’s right to a fair trial and result in reversible error.

Accordingly, Mr. Burks, through undersigned counsel, respectfully requests that the Court order the prosecution to clearly identify whether it intends to introduce Mr. Greer as a fact or expert witness—or both.

A hearing on the matter has been requested. I’m not sure if that would have to be on Monday or whether a separate hearing can be held while the actual trial is taking place.

As per a June 22nd report purportedly filed by John White, the DOJ asserts he

intends to offer two opinions on behalf of Burks.

In particular, White intends to offer:

(1) An “Opinion regarding Zeekrewards not being a Ponzi Scheme;” and

(2) An “Opinion regarding Determination of the Daily RPP Award.”

The DOJ argue that ‘neither opinion should be permitted‘.

White’s first opinion – his recitation of the definition of a Ponzi Scheme from Black’s Law Dictionary and then a comparison of the “characteristics” in that definition to Defendant’s scheme – is a clear effort to usurp the role of the Judge in instructing the jury on the relevant law and the jury in deciding the applicability of the law to the facts of this case.

It is well established that “[t]his type of expert testimony is not permitted.”

Such testimony is also irrelevant as Defendant is not charged with securities fraud or with operating a Ponzi scheme.

He is charged with conspiracy to commit mail and wire fraud, as well as substantive counts of mail fraud and wire fraud.

Interesting play by the DOJ.

And if you’re stuck trying to get your head around it: Zeek Rewards was a Ponzi scheme, Paul Burks has been indicted for wire fraud.

Further, to suggest that the Government must prove the elements of a Ponzi scheme (as defined by Defendant’s expert) is not only legally incorrect and unhelpful to the jury, but would also be confusing, mislead the jury, and be a waste of time and judicial resources under Rule 403.

And, even if such an opinion was proper, White is not qualified to offer such opinion, as he is not an attorney.

There’s a disconnect between reading the definition of a Ponzi scheme and arguing differences, versus sticking to the facts of Burks’ actual indictment.

The DOJ have also objected to the inherent speculative nature of White’s testimony.

White’s second opinion is an improper attempt to offer testimony of the mental state of the Defendant in calculating the RPP by speculating as to what Defendant might have reviewed or might have considered in making the calculation.

Such testimony is unhelpful to the jury as well as wholly irrelevant – unless or until there is evidence that Defendant did in fact review and consider the information White used in calculating the RPP.

The DOJ’s objection to Morris Aaron’s testimony is narrower, with the DOJ seeking to limit his first opinion and preclude two others out of six.

A portion of Aaron’s first opinion and his third opinion relate to what records were available to calculate the daily RPP and whether those records could have been used or would have been sufficient to calculate the RPP.

These opinions should be excluded for the same reasons as Mr. White’s similar opinions – they are an improper attempt to use an expert to “invite the jury to speculate a non-existent defense into existence.”

They are also an improper attempt to offer testimony of the mental state of
Defendant without laying any foundation that Defendant actually considered or used the records and methodology described in calculating the RPP.

Simply put, speculative testimony as to what Defendant could have or might have done is irrelevant, unhelpful to the jury, and likely to be confusing, mislead the jury, and be a waste of time.

Aaron’s fifth opinion purports, without any foundation or support, to offer an explanation of “internal policies and regulations of the banks and merchants” and summarily asserts that the banks and merchants did not conclude “that the Company had conducted criminal or fraudulent activities.”

These “opinions” should be precluded as they are not proper topics for expert testimony, but instead an improper attempt to have an expert speculate about what fact witnesses did and why.

It does seem a bit strange to have an expert witness speculate on why banks and merchants did what they did, rather than just ask them.

If Defendant wishes to present evidence regarding the internal policies and regulations of the banks and merchants and/or why they were unwilling and/or prohibited from providing services to Defendant, he is welcome call representatives from the banks and merchants – who have personal knowledge of those facts – to testify as to those facts, and then argue whatever is supported by the evidence in closing.

But he should be precluded from offering that testimony and argument through a paid expert.

Unless you’re not trying to construct a convenient defense based on speculation, I suppose.

A decision on either motion has yet to be made. I suspect one will be filed this Monday, with Burks’ trial still scheduled to kick off on Tuesday the 5th.

Stay tuned…


Footnote: Our thanks to Don@ASDUpdates for providing a copy of Paul Burks’ and the DOJ’s respective expert testimony objections (filed June 30th and July 1st).