Willis Carto archive

Including information about his associates

Legion v Carto, Trial transcript, Volume 5


Previous | Next

page 539
 
 
 
 1           COURT OF APPEAL OF THE STATE OF CALIFORNIA
 
 2                    FOURTH APPELLATE DISTRICT
 
 3                          DIVISION ONE
 
 4  ______________________________
                                  )
 5  LEGION FOR THE SURVIVAL OF    )
    FREEDOM, INC.,                )    DCA. NO. DO27959
 6                                )
                   PLAINTIFF AND  )    FROM SAN DIEGO COUNTY
 7                 RESPONDENT,    )
                                  )    HON. RUNSTON G. MAINO
 8       VS.                      )
                                  )
 9  WILLIS CARTO, HENRY FISCHER,  )
    VIBET, INC., LIBERTY LOBBY,   )
10  INC., ET. AL.,                )
                                  )
11                 DEFENDANTS AND )
                   APPELLANTS.    )
12  ______________________________)
 
13
                     REPORTER’s APPEAL TRANSCRIPT
14
                          NOVEMBER 6, 1996
15
                              VOLUME 5
16
                            PAGES 539-611
17
 
18
    APPEARANCES:
19
         FOR THE PLAINTIFF AND    JACQUES BEUGELMANS AND
20       RESPONDENT:              THOMAS MUSSELMAN
                                  1901 AVENUE OF THE STARS
21                                CENTURY CITY, CA 90067
 
22       FOR THE DEFENDANTS AND   PETER J. PFUND
         APPELLANTS:              2382 S.E. BRISTOL
23                                SUITE A
                                  NEWPORT BEACH, CA 92660
24
 
25
 
26
                                  BARBARA J. SCHULTZ, CSR, RPR
27                                CSR NO. 8021
                                  OFFICIAL REPORTER
28                                VISTA, CALIFORNIA
			
			

page 540
 
 
 
 1        IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
 
 2                IN AND FOR THE COUNTY OF SAN DIEGO
 
 3  DEPARTMENT 11                    HON. RUNSTON G. MAINO
 
 4
    _____________________________
 5                               )
    LEGION FOR THE SURVIVAL OF   )
 6  FREEDOM, INC.,               )
                                 )
 7                  PLAINTIFF,   )           NO. N64584
                                 )
 8           VS.                 )
                                 )
 9  WILLIS CARTO, HENRY FISCHER, )
    VIBET, INC., LIBERTY LOBBY   )
10  INC., ET. AL.,               )
                                 )
11              DEFENDANTS.      )
    _____________________________)
12
 
13                       REPORTER’s TRANSCRIPT
 
14                        NOVEMBER 6, 1996
 
15
    APPEARANCES:
16
        FOR THE PLAINTIFF:       JACQUES BEUGELMANS AND
17                               THOMAS MUSSELMAN
                                 1901 AVENUE OF THE STARS
18                               CENTURY CITY, CA 90067
 
19
 
20      FOR THE DEFENDANTS:      WAIER AND URTNOWSKI
                                 BY:  RANDALL S. WAIER
21                               1301 DOVE STREET
                                 NEWPORT BEACH, CA 92660
22
 
23
        FOR THE DEFENDANT        MARK LANE
24      LIBERTY LOBBY, INC.:     300 INDEPENDENCE AVENUE, S.E.
                                 WASHINGTON, D.C. 20003
25
 
26
                                 BARBARA J. SCHULTZ, CSR, RPR
27                               CSR NO. 8021
                                 OFFICIAL REPORTER
28                               VISTA, CALIFORNIA
			
			

page 541
 
 
 
 1  VISTA, CALIFORNIA, NOVEMBER 6, 1996, DEPARTMENT 11:
 
 2
 
 3       THE COURT:  ON THE RECORD.  MR. WAIER IS NOT PRESENT.
 
 4  WE CAN PROCEED WITHOUT HIM BECAUSE MR. LANE IS HERE.
 
 5       MR. LANE:  I AM HERE.  I DON'T THINK WE CAN PROCEED
 
 6  WITHOUT HIM.  I'M HERE PRO HAC VICE, ONLY ON BEHALF OF
 
 7  LIBERTY LOBBY.  I HAVE TO BE HERE WITH LOCAL COUNSEL.
 
 8  THAT’s ONLY FOR ONE CLIENT.
 
 9       THE COURT:  YOU ARE A SMART MAN.  YOU ARE RIGHT.
 
10            MR. WAIER’s SECRETARY SAID WE COULD START WITHOUT
 
11  HIM.  I GUESS SHE CAN'T CONTROL.
 
12       MR. LANE:  I DOUBT THAT’s WHAT HE — I DON'T DOUBT
 
13  THAT’s WHAT HE SAID, BUT I DON'T THINK THAT’s THE LAW.
 
14       MR. BEUGELMANS:  10 MORE MINUTES.
 
15       THE COURT:  COUNSEL, HE’s RIGHT.  GO OFF THE RECORD.
 
16                     (PROCEEDINGS RECESSED.)
 
17       THE COURT:  ON THE RECORD.  BACK IN SESSION.  ALL
 
18  PARTIES ARE PRESENT.
 
19            WOULD PLAINTIFF LIKE TO CALL A WITNESS?
 
20       MR. BEUGELMANS:  YES.  THE PLAINTIFF CALLS MR. HARVEY
 
21  TAYLOR TO THE STAND.
 
22
 
23                         HARVEY TAYLOR,
 
24  CALLED AS A WITNESS ON BEHALF OF THE PLAINTIFF, HAVING BEEN
 
25  FIRST DULY SWORN, TESTIFIED AS FOLLOWS:
 
26                       DIRECT EXAMINATION
 
27       THE CLERK:  WOULD YOU PLEASE STATE YOUR FULL NAME AND
 
28  SPELL YOUR LAST NAME.
			
			

page 542
 
 
 
 1       THE WITNESS:  HARVEY TAYLOR.  T-A-Y-L-O-R.
 
 2
 
 3  BY MR. BEUGELMANS:
 
 4       Q    MR. TAYLOR, WHERE DO YOU RESIDE?
 
 5       A    EAST NICOLAUS, CALIFORNIA.
 
 6       Q    AND IS THAT IN NORTHERN CALIFORNIA?
 
 7       A    YES, SIR.
 
 8       Q    WHAT IS YOUR AGE, SIR?
 
 9       A    62.
 
10       Q    ARE YOU CURRENTLY EMPLOYED?
 
11       A    RETIRED.
 
12       Q    AND WHAT WAS YOUR LAST EMPLOYMENT BEFORE YOU
 
13  RETIRED?
 
14       A    I'M A COMMERCIAL PILOT.
 
15       Q    FOR WHICH COMPANY?
 
16       A    UNITED AIRLINES.
 
17       Q    MR. TAYLOR, ARE YOU CURRENTLY ON THE BOARD OF
 
18  DIRECTORS OF THE LEGION FOR THE SURVIVAL OF FREEDOM, INC.?
 
19       A    I AM.
 
20       Q    AND SINCE WHAT DATE HAVE YOU BEEN A DIRECTOR OF
 
21  THE LEGION, SIR?
 
22       A    I FUNCTIONED AS A DIRECTOR SINCE THE RETIREMENT OF
 
23  MR. CARTO.
 
24       Q    WAS THAT SOMETIME SUBSEQUENT TO SEPTEMBER, 1993?
 
25       A    YES, SIR.
 
26       Q    PRIOR TO THAT DATE DO YOU — DID YOU BELIEVE THAT
 
27  YOU WERE A DIRECTOR OF PRIOR TO THAT DATE?
 
28       A    I HAD BEEN REQUESTED TO FUNCTION AS A DIRECTOR BY
			
			

page 543
 
 
 
 1  MR. CARTO PRIOR TO THAT DATE, HOWEVER, I HAD NEVER BEEN
 
 2  CONTACTED OR PROVIDED WITH ANY INFORMATION.
 
 3       MR. WAIER:  OBJECTION.  MOVE TO STRIKE.
 
 4  NONRESPONSIVE.
 
 5       THE COURT:  SUSTAINED.
 
 6
 
 7  BY MR. BEUGELMANS:
 
 8       Q    WHEN WERE YOU FIRST CONTACTED BY MR. CARTO
 
 9  CONCERNING BECOMING A DIRECTOR OF THE LEGION?
 
10       A    AT THE CONCLUSION OF AN I.H.R. CONFERENCE SEVERAL
 
11  YEARS AGO.
 
12       Q    WHEN YOU SAY “SEVERAL,” MORE THAN FIVE?  MORE THAN
 
13  TEN?
 
14       A    PROBABLY MORE THAN 5 YEARS AGO.
 
15       Q    DID YOU AGREE TO BECOME A DIRECTOR WHEN MR. CARTO
 
16  ASKED YOU BACK MORE THAN FIVE YEARS AGO WHETHER OR NOT YOU
 
17  WOULD?
 
18       A    I AGREED TO BECOME A DIRECTOR AT THAT TIME.  I
 
19  DID.
 
20       Q    SUBSEQUENT TO YOUR AGREEING TO BECOME A DIRECTOR
 
21  AT MR. Carto’s REQUEST, AND PRIOR TO SEPTEMBER 1993, DID YOU
 
22  EVER ATTEND ANY MEETINGS WITH THE BOARD OF DIRECTORS OF THE
 
23  LEGION, EITHER IN PERSON, OR IN A TELEPHONE CONFERENCE CALL?
 
24       A    I DID NOT.
 
25       Q    PRIOR TO SEPTEMBER 1993 WERE YOU EVER PROVIDED
 
26  WITH MINUTES OF ALLEGED MEETINGS OF THE BOARD OF DIRECTORS
 
27  FOR THE LEGION OF THE SURVIVAL OF FREEDOM, INC.?
 
28       A    I WAS NOT.
			
			

page 544
 
 
 
 1       Q    PRIOR TO SEPTEMBER 1993 HAD YOU EVER HEARD OF THE
 
 2  FARREL BEQUEATH?
 
 3       A    I HAD NEVER HEARD OF THE FARREL BEQUEST PRIOR TO
 
 4  1993, SEPTEMBER 1993.
 
 5       Q    SIR, ON OR ABOUT MARCH 5, 1991, DID YOU ATTEND A
 
 6  MEETING OF THE BOARD OF DIRECTORS TOGETHER WITH MR. AND
 
 7  MRS. FURR, MR. KERR, AND ANYBODY ELSE?
 
 8       A    I DID NOT.
 
 9       Q    PRIOR TO 1993 WERE YOU ADVISED THAT THE LEGION FOR
 
10  THE SURVIVAL OF FREEDOM, INC. HAD ALLEGEDLY VOTED AND
 
11  RESOLVED THROUGH ITS DIRECTORS NOT TO ACCEPT THE FARREL
 
12  BEQUEST?
 
13       A    NO.  I HAD — I WAS NOT AWARE OF THAT.
 
14       MR. BEUGELMANS:  NOTHING FURTHER.  THANK YOU, SIR.
 
15       THE COURT:  YOU MAY CROSS.
 
16       MR. LANE: MAY WE HAVE A MOMENT?
 
17       THE COURT:  YES.  WE'RE OFF THE RECORD.
 
18
 
19            (MR. LANE AND MR. AND MRS. CARTO LEFT AND
 
20            SUBSEQUENTLY RETURNED. )
 
21
 
22                        CROSS-EXAMINATION
 
23  BY MR. WAIER:
 
24       Q    GOOD MORNING, MR. TAYLOR.
 
25       A    GOOD MORNING, SIR.
 
26       Q    I'M RANDALL WAIER.
 
27       A    HOW DO YOU DO, SIR.
 
28       Q    I REPRESENT THE DEFENDANTS IN THIS MATTER, AS WELL
			
			

page 545
 
 
 
 1  AS MARK LANE.
 
 2            NOW SIR, IT IS YOUR TESTIMONY THAT YOU NEVER
 
 3  DISCUSSED WITH EITHER ELISABETH OR WILLIS CARTO ANYTHING
 
 4  CONCERNING THE RECOVERY OF ASSETS FROM THE FARREL-EDISON
 
 5  ESTATE?
 
 6       A    PRIOR TO 1993 WHEN MR. CARTO WAS DEPOSED?
 
 7       Q    YES.
 
 8       A    I RECEIVED NO INFORMATION ABOUT THE FARREL
 
 9  BEQUEST.
 
10       Q    HAVE YOU EVER STAYED AT THE HACIENDA HOTEL IN
 
11  LOS ANGELES?
 
12       A    I HAVE, SIR.
 
13       Q    ISN'T THAT WHERE YOU AS A PILOT YOU HAVE LAYOVERS?
 
14       A    THAT’s CORRECT.
 
15       Q    ISN'T IT TRUE THAT YOU MET WITH ELISABETH AND
 
16  WILLIS CARTO SOMETIME IN LATE 1989 OR EARLY 1990 AT THE
 
17  HACIENDA HOTEL?
 
18       A    I MET ELISABETH CARTO ONE TIME, YES.
 
19       Q    FOR ABOUT AN HOUR?
 
20       A    YES.  WE HAD EITHER LUNCH OR DINNER TOGETHER.
 
21       Q    IN FACT, DIDN'T SHE TELL YOU AT THAT TIME THE
 
22  REASON SHE WAS IN L.A. SHE JUST ARRIVED FROM SWITZERLAND BY
 
23  AIRPLANE?
 
24       A    SHE MAY HAVE SAID SO AT THAT TIME.
 
25       Q    DIDN'T SHE TELL YOU SHE WAS IN SWITZERLAND BECAUSE
 
26  THE FARREL-EDISON ESTATE, AND THERE’s A POSSIBILITY THAT
 
27  THERE WOULD BE SOME MONEY COMING?
 
28       A    NO.
			
			

page 546
 
 
 
 1       Q    YOU DON'T RECALL THAT OR YOU SPECIFICALLY
 
 2  RECOLLECT THAT IT DID NOT RECALL?
 
 3       A    NO, I SPECIFICALLY RECOLLECT NEVER HEARD OF A
 
 4  FARREL BEQUEST PRIOR TO '93.
 
 5       Q    DID YOU HEAR ABOUT ANY MONEY COMING FROM OVERSEAS
 
 6  FROM ELISABETH DURING THAT MEETING?
 
 7       A    NO, I DID NOT.
 
 8       Q    WHAT WAS DISCUSSED BETWEEN THE TWO OF YOU AT THAT
 
 9  MEETING THEN?
 
10       A    I RECALL IT BEING A CASUAL CONVERSATION.
 
11       Q    WAS ANYTHING DISCUSSED ABOUT THE LEGION?
 
12       A    I DON'T BELIEVE THERE WAS.
 
13       Q    BUT YOU DON'T KNOW FOR SURE?
 
14       A    NO.
 
15       Q    AND IN FACT, ISN'T IT TRUE THAT WHILE YOU WERE AT
 
16  THE HACIENDA HOTEL AT THAT TIME THAT YOU RECEIVED A
 
17  TELEPHONE CALL FROM WILLIS CARTO?
 
18       A    I DON'T RECALL HAVING RECEIVED A TELEPHONE CALL
 
19  FROM CARTO AT THIS POINT.
 
20       Q    THAT MEANS YOU COULD HAVE BUT YOU CAN'T RECALL IT
 
21  NOW?
 
22       A    HAD I RECEIVED IT, I PROBABLY WOULD HAVE
 
23  REMEMBERED IT.
 
24       Q    IN FACT, DIDN'T THAT TELEPHONE CALL GET YOU OUT OF
 
25  BED?  WEREN'T YOU SLEEPING WHEN HE CALLED?
 
26       A    I DON'T RECALL HAVING BEEN AROUSED FROM A SLEEP
 
27  WITH A TELEPHONE CALL FROM MR. CARTO, NO.
 
28       Q    DURING — PRIOR TO 1993, BESIDES MR. CARTO
			
			

page 547
 
 
 
 1  REQUESTING AND YOU AGREEING TO BECOME A BOARD MEMBER FOR THE
 
 2  LEGION — THAT’s YOUR TESTIMONY, ISN'T IT?
 
 3       A    I TESTIFIED THAT PRIOR TO 1993 AT THE CONCLUSION
 
 4  OF AN I.H.R. CONFERENCE MR. CARTO REQUESTED THAT I SERVE AS
 
 5  A MEMBER OF THE BOARD OF DIRECTORS, AND I CONSENTED.  THAT'S
 
 6  MY TESTIMONY.
 
 7       Q    AND SO YOU CONSENTED TO BECOME A BOARD MEMBER;
 
 8  ISN'T THAT CORRECT?
 
 9       A    THAT’s CORRECT.
 
10       Q    THAT APPROXIMATELY HAPPENED SOMEWHERE AROUND 7
 
11  YEARS AGO, 1989 OR SO?
 
12       A    I'M NOT POSITIVE.  I SAID IN EXCESS — POSSIBLY IN
 
13  EXCESS OF 5 YEARS.
 
14       Q    WELL, IN FACT, DIDN'T YOU TELL MR. WEBER ON
 
15  SEPTEMBER 27 IN A TELEPHONE CONVERSATION WITH MR. WEBER ON
 
16  SEPTEMBER 27, 1993, THAT IT HAPPENED WITHIN THE LAST 7 YEARS
 
17  FROM THAT DATE?
 
18       A    I STATE SPECIFICALLY NOW I DO NOT RECALL WHETHER
 
19  IT WAS WITHIN 5 YEARS.  IT’s BEEN MORE THAN 5 YEARS.  MAY
 
20  HAVE BEEN PRETTY CLOSE TO 10 YEARS.  I'VE BEEN ACTIVE WITH
 
21  THIS PARTICULAR ORGANIZATION SINCE 1979.
 
22       Q    THE I.H.R. CONFERENCE YOU ATTENDED DID YOU ATTEND
 
23  ONE EACH YEAR?
 
24       A    I ATTENDED ALL OF THE I.H.R. CONFERENCES.
 
25       Q    THAT’s AN ANNUAL CONFERENCE?
 
26       A    IT HAS — THERE HAVE BEEN YEARS SKIPPED.  THAT'S
 
27  CORRECT.
 
28       Q    YOU ARE FAMILIAR WITH LAVONNE AND LEWIS FURR?
			
			

page 548
 
 
 
 1       A    I DON'T BELIEVE THAT I EVER MET THEM PERSONALLY.
 
 2  I CAN'T RECALL FOR SURE.
 
 3       Q    YOU HAVE SPOKEN TO THEM ON THE TELEPHONE, HAVEN'T
 
 4  YOU?
 
 5       A    I DON'T BELIEVE I HAVE.
 
 6       Q    NOW, SIR, ISN'T IT TRUE THAT YOU HAVE GIVEN A
 
 7  LARGE DONATION TO ATTORNEYS REPRESENTING THE LEGION AGAINST
 
 8  WILLIS CARTO IN TEXAS?
 
 9       MR. BEUGELMANS:  OBJECTION.  RELEVANCE.
 
10       MR. WAIER:  BIAS.
 
11       THE COURT:  WHY DON'T WE WAIT, COUNSEL, UNTIL I ASK YOU
 
12  IF I NEED YOUR ASSISTANCE.
 
13       MR. WAIER:  I'M SORRY.
 
14       THE COURT:  OVERRULED.
 
15       THE WITNESS:  WOULD YOU REPEAT THE QUESTION?
 
16
 
17  BY MR. WAIER:
 
18       Q    ISN'T IT TRUE THAT YOU HAVE PAID FOR SOME OF THE
 
19  ATTORNEYS' SERVICES ON BEHALF OF THE LEGION FOR ATTORNEYS IN
 
20  TEXAS IN A LITIGATION WHERE THE LEGION IS A PARTY AGAINST
 
21  WILLIS CARTO?
 
22       A    THAT’s CORRECT, SIR.  YES, SIR.
 
23       Q    ISN'T IT TRUE IT’s ABOUT $10,000?
 
24       A    NO, SIR.  IT’s $5,000 TO BE SPECIFIC.
 
25       Q    HAVE YOU CONTRIBUTED ANY MONEY TOWARDS THE
 
26  ATTORNEYS IN THIS LITIGATION?
 
27       A    NO, I HAVE NOT.
 
28       Q    NOW YOU INDICATED THAT YOU ARE A DIRECTOR OF THE
			
			

page 549
 
 
 
 1  LEGION PRESENTLY?
 
 2       A    THAT’s CORRECT, SIR.
 
 3       Q    AND YOU HAVE BEEN ELECTED EACH AND EVERY YEAR?
 
 4       A    THAT’s CORRECT.
 
 5       Q    HOW MANY ACTUAL MEETINGS OF THE BOARD OF DIRECTORS
 
 6  HAVE YOU ATTENDED SINCE 1993?
 
 7       A    ALL OF THEM.
 
 8       Q    HAVE YOU ATTENDED THEM IN PERSON?
 
 9       A    THEY HAVE BEEN TELECONFERENCED BOARD OF DIRECTORS
 
10  MEETINGS.
 
11       Q    IN OTHER WORDS, THEY WOULD — SOMEONE WOULD CALL
 
12  YOU UP AND TELL YOU WHAT WAS HAPPENING; IS THAT CORRECT?
 
13       A    THAT IS NOT CORRECT.  NO, SIR.  I WOULD RECEIVE
 
14  NOTIFICATION THAT WE WOULD HAVE A TELEPHONE CONFERENCE
 
15  MEETING ON SUCH AND SUCH A DATE AT SUCH AND SUCH A TIME.  I
 
16  WOULD BE BY THE TELEPHONE.  WE WOULD ALL PARTICIPATE IN THE
 
17  CONFERENCE.
 
18       Q    WHO IS  “WE ALL"?
 
19       A    ALL MEMBERS OF THE BOARD OF DIRECTORS.
 
20       Q    WHO ARE THE PRESENT BOARD OF DIRECTORS OF THE
 
21  LEGION?
 
22       A    THEY'RE ON FILE, SIR.
 
23       Q    SIR, WHO ARE THE PRESENT BOARD OF DIRECTORS OF THE
 
24  LEGION?
 
25       A    THEY'RE ON FILE, SIR.
 
26       Q    I'M ASKING YOU, PLEASE.  YOU ARE A BOARD OF
 
27  DIRECTOR WHO HAS KNOWLEDGE OF THE OTHER DIRECTORS.  WHO ARE
 
28  THE NAMES OF THE OTHERS?
			
			

page 550
 
 
 
 1       A    MARK WEBER IS ONE.
 
 2       Q    WHO ELSE?
 
 3       A    I'M ANOTHER.
 
 4       Q    WHO ELSE?
 
 5       A    GENTLEMAN FROM MONTGOMERY, ALABAMA IS ANOTHER.
 
 6       Q    WHAT’s HIS NAME?
 
 7       A    BOB.  I DON'T HAVE HIS LAST NAME ON THE TIP OF MY
 
 8  TONGUE.  IT’s A QUESTION OF — IT’s — THE NAMES OF THE
 
 9  BOARD OF DIRECTORS ARE ON THE TIP OF MY TONGUE.  IT IS NOT
 
10  RELEVANT AT THIS PARTICULAR POINT.  I DON'T SEE THE
 
11  RELEVANCY OF IT.
 
12       Q    WELL, SIR --
 
13       A    WHAT IS THE RELEVANCY OF IT?  I KNOW THEY — I GOT
 
14  THEIR NAMES ON A PIECE OF PAPER AT MY HOME.  I DON'T HAVE
 
15  THEIR TELEPHONE NUMBERS IN MY HEAD EITHER.
 
16       Q    SIR, WHEN IS THE LAST TIME YOU ATTENDED A MEETING
 
17  WITH THESE NO NAME DIRECTORS?
 
18       MR. BEUGELMANS:  OBJECTION.  ARGUMENTATIVE, YOUR
 
19  HONOR.
 
20       THE WITNESS:  I DIDN'T SAY NO NAME.
 
21
 
22  BY MR. WAIER:
 
23       Q    WELL, TO THOSE DIRECTORS?
 
24       THE COURT:  MAYBE WE CAN WAIT UNTIL I RULE.  I DON'T
 
25  THINK YOU NEED ME IF YOU WANT TO SIT AND CHAT.
 
26            OVERRULE THE OBJECTION.
 
27  BY MR. WAIER:
 
28       Q    WHEN IS THE LAST TIME YOU HAD A MEETING WITH THE
			
			

page 551
 
 
 
 1  NAMED DIRECTORS?
 
 2       A    RECENTLY.  I DON'T HAVE THE DATE HERE.  JUST
 
 3  RECENTLY.  NOT TOO LONG AGO WE HAD A BOARD OF DIRECTORS
 
 4  MEETING.
 
 5       Q    YOU CAN'T RECALL WHO YOU SPOKE WITH DURING THAT
 
 6  CONVERSATION?
 
 7       A    WELL, ALL THE DIRECTORS — ALL THE DIRECTORS WERE
 
 8  PRESENT.  I WAS PRESENT.  MR. MARK WEBER WAS PRESENT.  WE
 
 9  ALL PARTICIPATED IN THE MEETING, AND IT WAS A VERY
 
10  PRODUCTIVE MEETING.
 
11       Q    DID YOU EVER SEE ANY MINUTES OF THE MEETING?
 
12       A    THE MINUTES?  WE HAD PUBLISHED MINUTES OF EVERY
 
13  MEETING.
 
14       Q    SIR, THAT’s NOT MY QUESTION.  DID YOU SEE ANY
 
15  MINUTES OF THIS MEETING THAT YOU RECENTLY HAD?
 
16       A    I CAN'T RECALL WHETHER I RECEIVED THE MINUTES OF
 
17  THE LAST MEETING OR NOT.
 
18       Q    HOW MANY DIRECTORS WERE THERE THAT YOU HAD THE
 
19  LAST TELEPHONE CONFERENCE WITH, THE NUMBER?
 
20       A    I BELIEVE THAT WE HAVE ABOUT 5 ACTIVE DIRECTORS.
 
21       Q    DO YOU BELIEVE OR DO YOU KNOW?
 
22       A    I'M NOT POSITIVE.  I'M NOT PREPARED TO ANSWER
 
23  THESE PARTICULAR QUESTIONS HERE.  I AM PREPARED TO ANSWER
 
24  QUESTIONS RELATIVE TO THE OPERATION OF THE LEGION FOR
 
25  SURVIVAL OF FREEDOM PRIOR TO 1993, FALL OF 1993.  I GOT THE
 
26  NAMES OF THE BOARD OF DIRECTORS AT MY HOME, THEIR TELEPHONE
 
27  NUMBERS AND ADDRESSES AND MINUTES OF THE PAST MEETINGS.
 
28       Q    ARE YOU AWARE OF THE INCORPORATORS OF THE LEGION?
			
			

page 552
 
 
 
 1       A    I HEARD THE TERM USED BEFORE, YES, SIR.
 
 2       Q    AND ARE YOU AWARE THAT LAVONNE FURR IS AN
 
 3  INCORPORATOR?
 
 4       A    I HEARD OF THIS.
 
 5       MR. BEUGELMANS:  OBJECTION.
 
 6       THE COURT:  OVERRULED BECAUSE OF THE ARGUMENT YOU MADE,
 
 7  WHICH YOU HAVEN'T GIVEN ME ANY LEGAL AUTHORITY FOR, THAT THE
 
 8  INCORPORATORS HAVE THE AUTHORITY OVER THE BOARD OF
 
 9  DIRECTORS.  ASSUMING YOU ARE GOING TO DEVELOP THIS IN A
 
10  LEGAL ARGUMENT, I'LL LET YOU ASK THE QUESTION.
 
11
 
12  BY MR. WAIER:
 
13       Q    YOU ARE AWARE THAT LAVONNE FURR IS AN INCORPORATOR
 
14  OF THE LEGION?
 
15       A    NOT SPECIFICALLY, REALLY.  NO.
 
16       Q    YOU DON'T KNOW THAT OR YOU HEARD THAT?
 
17       A    I DON'T KNOW THAT FOR SURE.
 
18       Q    HAVE YOU HEARD WILLIS CARTO WAS AN INCORPORATOR?
 
19       A    I HEARD THE TERM USED BEFORE, YES.
 
20       Q    WHEN YOU WERE APPOINTED TO THE BOARD OF DIRECTORS
 
21  IN SEPTEMBER OF 1993, TELL ME WHO ELSE WAS APPOINTED WITH
 
22  YOU?
 
23       A    SIR, I HAVE ALL THAT INFORMATION AT HOME.  I DON'T
 
24  HAVE IT WITH ME NOW.
 
25       Q    WHEN YOU SAID YOU WERE APPOINTED IN 1993, WHAT
 
26  DATE WERE YOU APPOINTED IN 1993, AS BEST YOU CAN RECALL?
 
27       A    I DON'T HAVE THAT WITH ME.
 
28       Q    WERE YOU THE FIRST DIRECTOR, ONE OF THE FIRST
			
			

page 553
 
 
 
 1  DIRECTORS APPOINTED AFTER WILLIS CARTO WAS AS YOU CALLED THE
 
 2  DEPOSED?
 
 3       A    YES.  I WOULD IMAGINE SO.  I'M NOT POSITIVE ABOUT
 
 4  THAT EITHER.
 
 5       Q    HAVE YOU SEEN ANY MINUTES REFERENCING THAT?
 
 6       A    I PROBABLY HAVE THOSE MINUTES AT MY HOME.
 
 7       Q    SO IS IT YOUR TESTIMONY THAT AFTER LEWIS AND
 
 8  LAVONNE FURR RESIGNED YOU BECAME A DIRECTOR?
 
 9       A    I DON'T KNOW WHAT THE PURPOSE OF YOUR QUESTION IS,
 
10  SIR.  I REALLY DON'T UNDERSTAND THE PURPOSE OF THE
 
11  QUESTION.  ALL I KNOW IS I WAS ASKED TO BE A DIRECTOR OF
 
12  I.H.R. BY WILLIS CARTO YEARS AGO.  I ACCEPTED.  I RECEIVED
 
13  NO COMMUNICATIONS FROM MR. CARTO ABOUT ANY BOARD MEETINGS.
 
14  NO MINUTES FROM MR. CARTO ABOUT BOARD MEETINGS.  I WAS NOT
 
15  ADVISED AS TO — WHETHER ABOUT ANY FINANCIAL --
 
16       MR. WAIER:  MOVE TO STRIKE AS NONRESPONSIVE.
 
17       THE COURT:  OVERRULED.
 
18
 
19  BY MR. WAIER:
 
20       Q    SIR, MY QUESTION WAS --
 
21       MR. WAIER:  COULD YOU READ BACK THE QUESTION, PLEASE?
 
22                       (RECORD WAS READ.)
 
23       THE WITNESS:  MY TESTIMONY IS THAT I WAS APPOINTED A
 
24  DIRECTOR BY WILLIS CARTO YEARS AGO.  THAT I RECEIVED NO
 
25  COMMUNICATION FROM MR. CARTO PRIOR TO 1993.
 
26
 
27  BY MR. WAIER:
 
28       Q    DID YOU BELIEVE YOU WERE A DIRECTOR?
			
			

page 554
 
 
 
 1       A    I WASN'T EVEN POSITIVE ABOUT THAT AT THAT
 
 2  PARTICULAR TIME, NO.
 
 3       Q    WELL, IN FACT, DIDN'T AT THE POINT IN TIME WHEN
 
 4  WILLIS AND ELISABETH CARTO OR WHEN WILLIS CARTO, AS YOU PUT
 
 5  IT, WAS DEPOSED FROM THE LEGION, DIDN'T MARK WEBER TELEPHONE
 
 6  YOU AND TELL YOU THAT YOU WERE A DIRECTOR?
 
 7       A    THIS I DON'T RECALL THAT AT ALL.  MANY
 
 8  COMMUNICATIONS BETWEEN — OVER THE YEARS, LAST FEW YEARS
 
 9  ABOUT THIS SUBJECT, BUT I DON'T RECALL IT.
 
10       Q    IT’s DIFFICULT FOR YOU TO RECALL ANY OF THOSE
 
11  CONVERSATIONS, ISN'T IT?
 
12       A    I RECALL QUITE A FEW.  I'LL RECALL THE ONE I'M
 
13  HAVING RIGHT NOW.
 
14       Q    SIR, DURING A PERIOD OF TIME AFTER YOU AGREED AND
 
15  ACCEPTED TO BECOME A DIRECTOR, YOU HAD MANY CONVERSATIONS
 
16  WITH WILLIS CARTO AFTER THAT POINT IN TIME, DIDN'T YOU?
 
17       A    I HAD TWO OR THREE CONVERSATIONS WITH WILLIS CARTO
 
18  AFTER THE 1993 DEPOSITION AFTER THE TIME WHEN HE WAS
 
19  DEPOSED, YES.
 
20       Q    PRIOR TO THAT TIME AND AFTER HE HAD ASKED YOU TO
 
21  BECOME A DIRECTOR SOME 5 YEARS AGO OR 7 YEARS AGO, WHATEVER
 
22  THE CASE MAY BE, YOU HAD CONVERSATIONS WITH LEWIS CARTO ON A
 
23  NUMBER OF OCCASIONS, DIDN'T YOU?
 
24       A    I USUALLY SPOKE WITH MR. CARTO WHEN WE HAD AN
 
25  I.H.R. CONFERENCE, YES, BUT WE HAD NO COMMUNICATION OTHER
 
26  THAN THAT.
 
27       Q    YOU NEVER HAD TELEPHONE CONVERSATIONS WITH
 
28  MR. CARTO?
			
			

page 555
 
 
 
 1       A    I DON'T RECALL ANY.
 
 2       Q    DOES THAT MEAN YOU COULD BUT YOU DON'T RECALL THEM
 
 3  NOW?
 
 4       A    I RECALL SIGNIFICANT TELEPHONE CONVERSATIONS.  I
 
 5  WOULD DEFINITELY RECALL A CONVERSATION WHICH INDICATED THAT
 
 6  I HAD — THAT THE LEGION HAD COME INTO SOME SEVEN AND A HALF
 
 7  MILLION DOLLARS.
 
 8       Q    WOULD YOU RECALL WHAT WAS DISCUSSED IN YOUR
 
 9  CONFERENCE CALL — WHAT WAS THE AGENDA THAT WAS DISCUSSED AT
 
10  THE RECENT BOARD OF DIRECTORS MEETINGS WHERE YOU
 
11  TELECONFERENCED?
 
12       A    OH, WE HAD A NUMBER OF ITEMS TO BE DISCUSSED.
 
13       Q    TELL US TODAY WHAT THE ITEMS WERE.
 
14       MR. BEUGELMANS:  OBJECTION.  RELEVANCE.
 
15       THE COURT:  SUSTAINED.
 
16       MR. WAIER:  YOUR HONOR, IT GOES TO — MAY I BE HEARD?
 
17  IT GOES TO THE MEMORY.
 
18       THE COURT:  YES, MEMORY ONLY AS TO THE LAST MEETING.
 
19       MR. WAIER:  THAT’s WHAT I ASKED HIM.
 
20       THE COURT:  I KNOW THAT.  I JUST DON'T THINK IT'S
 
21  RELEVANT.  HE SAYS HE WOULD REMEMBER A CONVERSATION ABOUT
 
22  SEVEN AND A HALF MILLION DOLLARS MAKES SENSE TO ME.  WHETHER
 
23  HE CAN REMEMBER OR NOT REMEMBER WHAT THEY TALKED ABOUT AT
 
24  THE LAST BOARD MEETING DOESN'T MAKE ANY DIFFERENCE TO ME
 
25  WHETHER HE REMEMBERS OR DOESN'T REMEMBER.  THAT I DON'T
 
26  CARE.
 
27       MR. WAIER:  NOTHING FURTHER.
 
28       THE COURT:  ANY REDIRECT?
			
			

page 556
 
 
 
 1                      REDIRECT EXAMINATION
 
 2  BY MR. BEUGELMANS:
 
 3       Q    MR. TAYLOR, DO YOU PERSONALLY HAVE ANY FINANCIAL
 
 4  INTEREST IN THE OUTCOME OF THIS LITIGATION?
 
 5       A    NONE.  ALL IT HAS DONE IS COST ME MONEY.
 
 6       MR. BEUGELMANS:  THANK YOU, SIR.
 
 7       THE COURT:  RECROSS?
 
 8
 
 9                        RECROSS EXAMINATION
 
10  BY MR. WAIER:
 
11       Q    HOW HAS IT COST YOU MONEY, MR. TAYLOR?
 
12       A    YOU BROUGHT IT UP.  I PAID $5,000 TO SUPPORT LEGAL
 
13  ACTIVITY AND USED IN TEXAS IN SUPPORT OF IT.
 
14       Q    DO YOU CONSIDER THE MONEY YOU PAID OVER THERE TO
 
15  BE SUPPORTIVE OF THIS LITIGATION?
 
16       A    NO.  NO.  SEPARATE.
 
17       MR. WAIER:  NOTHING FURTHER.
 
18
 
19                      REDIRECT EXAMINATION
 
20  BY MR. BEUGELMANS:
 
21       Q    THE LITIGATION USED IN TEXAS IS LITIGATION BROUGHT
 
22  BY WILLIS CARTO AND ELISABETH CARTO AGAINST THE SUBSEQUENT
 
23  DIRECTORS OF THE LEGION AFTER 1993, CORRECT?
 
24       A    THAT’s CORRECT.
 
25       MR. BEUGELMANS:  NOTHING FURTHER.
 
26       THE COURT:  ANYTHING ELSE?
 
27       MR. WAIER:  NO.
 
28       THE COURT:  MR. LANE, ANY QUESTIONS?
			
			

page 557
 
 
 
 1       MR. LANE:  NO.
 
 2       THE COURT:  THANK YOU, MR. TAYLOR, FOR YOUR TESTIMONY.
 
 3  THERE’s A STEP THERE.  BE CAREFUL.  YOU ARE WELCOME TO STAY
 
 4  OR LEAVE.
 
 5       THE WITNESS:  THANK YOU.
 
 6       THE COURT:  ANY OTHER WITNESSES?
 
 7       MR. BEUGELMANS:  NO LIVE WITNESSES UNLESS LAVONNE AND
 
 8  LEWIS FURR ARE OUTSIDE.
 
 9       THE COURT:  UNLESS WHO?
 
10       MR. BEUGELMANS:  LEWIS AND LAVONNE FURR ARE WAITING
 
11  OUTSIDE.  THERE ARE NO OTHER LIVE WITNESSES.
 
12       THE COURT:  IF YOU WANT TO CHECK.  I DON'T THINK
 
13  THEY'RE THERE.
 
14       MR. MUSSELMAN:  I'LL CHECK FOR THE RECORD.
 
15       THE COURT:  WE'RE OFF THE RECORD.  (PAUSE)  GO ON THE
 
16  RECORD.  THE FURRS ARE NOT THERE.
 
17       MR. MUSSELMAN:  JUST I DON'T KNOW WHAT THE FURRS LOOK
 
18  LIKE.  THERE’s ONE MAN UNDER AGE 40 OUT THERE.  TESTIMONY
 
19  WAS THE FURRS WERE ELDERLY.  THAT’s SAFE TO SAY.
 
20       MR. WAIER:  MR. BEUGELMANS WILL KNOW.  HE WAS IN
 
21  ARKANSAS AT THE TIME THE DEPOSITION WAS TAKEN.
 
22       THE COURT:  TO KEEP THE CASE MOVING ALONG, I WOULD LIKE
 
23  TO PROCEED.  PLAINTIFF WANT TO PRESENT ANY EVIDENCE?  ANY
 
24  WITNESSES?
 
25       MR. WAIER:  WELL, IS HE RESTING?
 
26       THE COURT:  YES.
 
27       MR. BEUGELMANS:  YOUR HONOR — WELL, WE'RE NOT RESTING,
 
28  YOUR HONOR.
			
			

page 558
 
 
 
 1            THE PLAINTIFF RENEWS ITS REQUEST TO BE PERMITTED
 
 2  TO READ INTO EVIDENCE PORTIONS OF THE DEPOSITION OF LAVONNE
 
 3  FURR AND LEWIS FURR.
 
 4            WE ALSO LIKE TO MARK A FEW EXHIBITS AND THEN LIKE
 
 5  TO HAVE AN OPPORTUNITY TO MOVE THE EXHIBITS, WHICH I HAVE
 
 6  BEEN MARKED INTO EVIDENCE.  SO BEFORE WE REST, THAT'S
 
 7  TECHNICALITY.
 
 8       THE COURT:  MR. WAIER, WHILE YOU WERE IN TRAFFIC WE
 
 9  DISCUSSED A NUMBER OF ISSUES.  ONE OF THE ISSUES WAS TAKING
 
10  JUDICIAL NOTICE OF THINGS.  THERE WERE TWO THINGS THAT THE
 
11  PLAINTIFF WOULD TAKE JUDICIAL NOTICE OF, REQUESTING THAT IT
 
12  BE DONE.  ONE WAS A LETTER TO THE ATTORNEY FROM THE ATTORNEY
 
13  GENERAL SAYING THAT A RECORD DOES NOT EXIST.  THEY HAVE THAT
 
14  HERE.
 
15       MR. WAIER:  MAY I SEE THAT?  I NEVER SEEN THAT
 
16  DOCUMENT.
 
17       THE COURT:  AND THEN A COPY OF AN OPINION, WHICH IS
 
18  UNPUBLISHED, FROM THE 4TH APPELLATE DISTRICT, DIVISION 3.
 
19       MR. WAIER:  UNPUBLISHED OPINIONS CANNOT BE USED FOR ANY
 
20  PURPOSE, YOUR HONOR.
 
21       THE COURT:  THEY WANTED ME TO TAKE JUDICIAL NOTICE OF
 
22  THOSE TWO THINGS.
 
23       MR. WAIER:  YOU CAN'T TAKE JUDICIAL NOTICE OF AN
 
24  UNPUBLISHED OPINION.  THAT’s THE LAW.
 
25       THE COURT:  IT CAN'T BE USED FOR ANY PURPOSE.  THAT'S
 
26  TRUE UNDER RULES OF COURT 944.
 
27            WHAT ABOUT THE ATTORNEY GENERAL’s THING?  DO YOU
 
28  WANT TO LOOK AT THAT?
			
			

page 559
 
 
 
 1       MR. WAIER: I'M NOT SURE WHAT THIS SAYS.  I DON'T SEE A
 
 2  DECLARATION.  I'M SORRY.
 
 3       MR. BEUGELMANS:  YOUR HONOR, ON THE ISSUE OF THE USE OF
 
 4  THE UNPUBLISHED OPINION OF THE COURT OF APPEAL, THE FOURTH
 
 5  DISTRICT, DIVISION 3, I BELIEVE THAT THE COURT CAN
 
 6  NONETHELESS TAKE JUDICIAL NOTICE OF THE OPINION.  AND
 
 7  INSOFAR AS SOME ISSUES THAT HAVE BEEN RAISED BY THE DEFENSE
 
 8  IN THIS MATTER HAVE BEEN DECIDED BY THE COURT OF APPEAL, I
 
 9  BELIEVE THEY WOULD BE THE LAW OF THE CASE.
 
10       MR. WAIER:  THAT’s NOT CORRECT.  AN UNPUBLISHED OPINION
 
11  ONE MORE TIME CANNOT BE USED FOR ANY OPINION.  THAT’s WHY
 
12  IT’s UNPUBLISHED.
 
13       MR. BEUGELMANS:  I BELIEVE THAT’s INCORRECT.  THE
 
14  DOCTRINE OF RES JUDICATA DOES APPLY WHETHER OR NOT AN
 
15  OPINION IS PUBLISHED.  OTHERWISE THERE WOULD BE NO RES
 
16  JUDICATA.  COUNSEL CAN LITIGATE IT.  SINCE THE FINAL OPINION
 
17  IS NOT PUBLISHED, IT’s RES JUDICATA.  THAT’s NONSENSICAL
 
18  WHAT COUNSEL IS SAYING.  A PUBLISHED AS OPPOSED TO AN
 
19  UNPUBLISHED OPINION IS VASTLY OVERBROAD.
 
20            IT’s THE POSITION OF THE PLAINTIFFS THIS
 
21  UNPUBLISHED OPINION IS RES JUDICATA TO ALL THE ISSUES THAT
 
22  WERE BEFORE THE COURT, BOTH THE TRIAL COURT AND THE COURT OF
 
23  APPEAL.  HOWEVER, IT CANNOT BE CITED AS LEGAL PRECEDENT IN
 
24  ANOTHER PROCEEDING.
 
25       THE COURT:  WHAT ABOUT THE ATTORNEY GENERAL'S?
 
26       MR. WAIER:  I DON'T BELIEVE THAT THE COURT CAN TAKE
 
27  JUDICIAL NOTICE OF A DECLARATION OF A PARTY NO MATTER WHO IT
 
28  IS.  FOR PURPOSES OF THIS WE WERE GIVEN NO OPPORTUNITY TO
			
			

page 560
 
 
 
 1  CROSS-EXAMINE THIS WITNESS.  YOU MAY TAKE JUDICIAL NOTICE OF
 
 2  OFFICIAL ACTS CERTAINLY, BUT THIS IS NOT IN THE CAPACITY OF
 
 3  AN OFFICIAL ACT.  THERE’s NO FOUNDATION LAID.
 
 4            EVEN IN THIS PARTICULAR DECLARATION THAT I SEE
 
 5  THAT IT IS AN OFFICIAL ACT OF ANYBODY.  IN OTHER WORDS, THE
 
 6  OFFICIAL ACTS THAT YOU CAN TAKE, FOR EXAMPLE, SECRETARY OF
 
 7  STATE.  FILE STAMP, FOR EXAMPLE, IT HAS TO BE FILE-STAMPED
 
 8  TO — FOR EXAMPLE, FILE-STAMPED COPY OF ARTICLES OF
 
 9  INCORPORATION.  OFFICIAL ACTS OF THAT NATURE CAN BE DONE,
 
10  BUT A DECLARATION BROUGHT INTO EVIDENCE IS NOT PROPER UNLESS
 
11  YOU CONTACT THIS PERSON.
 
12            THIS IS NOT ONE OF THE OFFICIAL ACTS YOU CAN TAKE
 
13  JUDICIAL NOTICE OF IT.
 
14       THE COURT:  WHAT WERE THE OTHER ISSUES?  THE IDEA OF
 
15  THE SPOUSAL PRIVILEGE?  IT’s UNFORTUNATE I'M NOT PROVIDED
 
16  WITH LOTS OF THINGS I HAVE IN A NORMAL COURTROOM, BUT I DO
 
17  HAVE A COPY OF JEFFERSON.  THIS EXCEPTION UNDER EVIDENCE
 
18  CODE 981 I DON'T THINK THAT THAT ALLOWS — EVEN THAT
 
19  EXCEPTION ALLOWS MRS. CARTO TO BE ASKED ABOUT SOMETHING THAT
 
20  MR. CARTO HAS DONE.  IF YOU GO DOWN IN THE SECTIONS YOU WILL
 
21  SEE THAT IF MR. CARTO WOULD HIT MRS. CARTO THERE WOULD BE NO
 
22  SUCH EXCEPTION.  THE ONLY DISCUSSION BY JEFFERSON SAYS THE
 
23  ONE PURPOSE OF THE COMMUNICATION IS TO HELP SOMEONE.  WHAT
 
24  HE MEANS BY THAT I DON'T KNOW.  IT WOULD SEEM TO WRITE
 
25  OUT THE — IF I EXPAND IT THAT WAY, IT WRITES OUT THE
 
26  FOLLOWING EXCEPTIONS.  THAT DOESN'T MAKE SENSE TO ME.
 
27       MR. LANE:  YOUR HONOR, I HAVEN'T READ THE CASE EITHER.
 
28  I HAVE SEEN THIS.  I HAVE SEEN ALREADY SIMILAR STATUTES IN
			
			

page 561
 
 
 
 1  OTHER STATES.  THIS STATUTE SEEMS TO ME IS TALKING ABOUT A
 
 2  PLAN TO COMMIT A CRIME OR PLAN TO THE OBLIGATION AT THAT
 
 3  POINT BEFORE ANYTHING HAPPENS.  I BELIEVE THAT’s WHAT THE
 
 4  STATUTE IS REFERRING TO.
 
 5       THE COURT:  I THINK IT DOES TOO.  UNLESS I FIND A CASE
 
 6  RIGHT ON POINT THAT SAYS THAT MRS. CARTO CAN BE COMPELLED TO
 
 7  TESTIFY AGAINST HER HUSBAND, I'M GOING TO SUSTAIN THE
 
 8  PRIVILEGE.
 
 9            WHAT OTHER ISSUES DID WE TALK ABOUT?
 
10       MR. BEUGELMANS:  JUST ON THE RECORD, IF I COULD, I
 
11  WOULD LIKE TO CITE EVIDENCE CODE SECTION 1284, 1284.
 
12            IT’s VERY CLEAR, YOUR HONOR, THAT EVIDENCE OF A
 
13  SEARCH OF PUBLIC RECORDS AND THE FAILURE TO FIND A RECORD IS
 
14  AN EXCEPTION TO THE HEARSAY RULE.
 
15            WE HAVE A CERTIFIED COPY, A DECLARATION OF A
 
16  PUBLIC ENTITY — I BELIEVE THE DECLARATION OF THE ATTORNEY
 
17  GENERAL BEFORE THE COURT, WHICH I WOULD ASK THE COURT TO
 
18  KINDLY MARK AS EXHIBIT 200.  IT DOES COME WITHIN 1284.
 
19       THE COURT:  LET’s MARK IT 200.  WE CAN ACCOMPLISH THAT
 
20  TASK.
 
21       MR. BEUGELMANS:  CAN WE ALSO MARK THE APPELLATE OPINION
 
22  IN KERR VERSUS LEGION CASE, G.O. 16137, AS EXHIBIT 201.
 
23  MARK IT UNTIL YOUR HONOR HAS RULED.
 
24       THE COURT:  THEN I THINK THE --
 
25       MR. BEUGELMANS:  ALSO, JUST AS A POINT OF HOUSEKEEPING,
 
26  IF WE COULD MARK THE REMITTITUR THAT ACCOMPANIES EXHIBIT 201
 
27  AS EXHIBIT 202.
 
28       MR. LANE:  I'M HAVING DIFFICULTY FINDING SOME OF THE
			
			

page 562
 
 
 
 1  SECTIONS MR. BEUGELMANS HAS MADE REFERENCE TO, ESPECIALLY
 
 2  C.C.P. 18, PARAGRAPH 6.  THE ONLY VOLUME I HAVE IS A 1993
 
 3  VOLUME, WHICH IS UP-TO-DATE.  THERE’s AN 18 BUT NO
 
 4  SUBDIVISIONS, CERTAINLY NOT PARAGRAPH 6 I CAN FIND.
 
 5            YOU ARE TALKING ABOUT 17.  NOW HE’s TALKING ABOUT
 
 6  17, AND HE MADE A CROSS ON THE BOOK.
 
 7       MR. BEUGELMANS:  I APOLOGIZE.  SECTION 17.
 
 8       MR. LANE:  I DON'T THINK YOU SHOULD WRITE ON THE BOOK.
 
 9       MR. BEUGELMANS:  IT’s MY BOOK.
 
10       THE COURT:  SPEAKING OF SECTIONS IN THE COMPLAINT
 
11  THERE.
 
12       MR. LANE:  I'LL LOOK AT 17.
 
13       THE COURT:  SPEAKING OF SECTIONS, THERE’s — IN THE
 
14  COMPLAINT THERE’s A SECTION CITED 6517 OF THE CIVIL CODE, OR
 
15  SOMETHING LIKE THAT.  ONE OF THE CAUSES OF ACTION I COULDN'T
 
16  FIND THAT.  WHAT IS THAT ALL ABOUT?
 
17       MR. WAIER:  THAT’s GOING TO BE PART OF THE NONSUIT
 
18  MOTION I BROUGHT WITH US OR MOTION FOR JUDGMENT UNDER 631.8
 
19  I BROUGHT WITH US TODAY.  THERE’s NO SUCH SECTION.  THAT'S
 
20  ONE OF THE EIGHTH CAUSES OF ACTION.
 
21       MR. BEUGELMANS:  YOUR HONOR, IF THERE’s A MISCITE,
 
22  DURING LUNCH TIME I'LL MOVE TO AMEND THE COMPLAINT TO
 
23  CONFORM TO PROOF.
 
24       THE COURT:  HERE IS WHAT I THINK I WILL HAVE YOU DO.  I
 
25  GOT SOME THINGS I GOT TO LOOK UP.  YOU CAN TALK TO EACH
 
26  OTHER.  I KNOW THAT YOU CAN AND TRY TO RESOLVE WHAT YOU
 
27  THINK SHOULD COME INTO EVIDENCE; WHAT YOU HAVE A
 
28  DISAGREEMENT ABOUT.  THEN IF YOU AGREE, I'LL BRING IT IN.
			
			

page 563
 
 
 
 1  IF YOU DON'T AGREE, I'LL MAKE A RULING ON IT.
 
 2            THEN IF YOU HAVE SOME PAPERS THAT YOU FILED FOR
 
 3  THE MOTION FOR NONSUIT UNDER 631.8 I'LL BE GLAD TO READ
 
 4  THOSE.
 
 5            I ALREADY TOLD YOUR MR. LANE THAT I AM INCLINED TO
 
 6  USE MY DISCRETION UNDER THAT SECTION AND WAIT UNTIL ALL THE
 
 7  EVIDENCE COMES IN BEFORE I RULE.
 
 8       MR. WAIER:  THIS IS NOT — ARE YOU TALKING ABOUT --
 
 9  IT’s ACTUALLY A MOTION FOR JUDGMENT.  SINCE IT’s NOT A JURY
 
10  TRIAL, A MOTION, YOU KNOW, HAS BEEN DRAFTED BY THE
 
11  LEGISLATURE FOR BENCH TRIALS.  AND I'M NOT SURE — BASED ON
 
12  MY UNDERSTANDING OF THE STATUTE, I'M NOT QUITE SURE OF THE
 
13  DISCRETIONARY ASPECT — THERE IS A DISCRETIONARY ASPECT IN
 
14  THE COURT TO ALLOW THE PLAINTIFF TO REOPEN IF IN FACT
 
15  ADDITIONAL TESTIMONY IS NECESSARY WITH RESPECT TO ANY ISSUE
 
16  RAISED BY THE MOTION.  I'M NOT SURE OF THAT.
 
17       THE COURT:  HERE IS THE SECTION.  I'M READING FROM
 
18  631.8:  “THE COURT AS TRIER OF THE FACTS SHALL WEIGH THE
 
19  EVIDENCE AND MAY RENDER A JUDGMENT IN FAVOR OF THE MOVING
 
20  PARTY, IN WHICH CASE THE COURT SHALL MAKE A STATEMENT OF
 
21  DECISION AS PROVIDED FOR IN SECTION 632 AND 634, OR MAY
 
22  DECLINE TO RENDER ANY JUDGMENT UNTIL THE CLOSE OF ALL THE
 
23  EVIDENCE."
 
24       MR. WAIER:  THAT IS CORRECT.
 
25       THE COURT:  THAT’s WHERE I SAID I WAS LIKELY TO FOLLOW
 
26  THE “OR” PART OF THE SECTION.
 
27       MR. WAIER:  THE ONLY REASON WHY I — IF I MAY ADDRESS
 
28  THE COURT BRIEFLY ON THIS.  THE ONLY REASON WHY I WOULD LIKE
			
			

page 564
 
 
 
 1  THE COURT TO CONSIDER IT AS OPPOSED TO EXERCISING ITS
 
 2  DISCRETION AND NOT TO HEAR IT UNTIL ALL THE EVIDENCE IS IN
 
 3  IS WE NOW ARE LEFT WITHOUT SOME SORT OF TENTATIVE FROM YOU,
 
 4  YOUR HONOR, LEFT WITH PUTTING ON EVIDENCE WHICH MAY
 
 5  ESTABLISH SOME EVIDENCE ON THE PART OF THE PLAINTIFF, WHICH
 
 6  I DON'T BELIEVE THEY HAVE SHOWN IN THE CASE IN CHIEF.
 
 7            THE BURDEN IS ON THEM UNDER THE COMPLAINT, AND
 
 8  THAT’s THE REASON WHY WE'RE LEFT IN A DILEMMA TO WHETHER WE
 
 9  SHOULD CALL SOMEBODY WITHOUT SOME SORT OF A TENTATIVE
 
10  FEELING.  I SPENT ALL NIGHT WORKING ON THIS THING.
 
11       THE COURT:  THAT CERTAINLY IS A REASON FOR ME TO GRANT
 
12  IT.  WHY DON'T I READ IT.
 
13       MR. WAIER:  CAN WE LOOK THIS OVER?  I HAVEN'T SHOWN THE
 
14  CLIENTS AND GIVE US 15 MINUTES.  I'LL SIGN IT AND FILE IT.
 
15       THE COURT:  SURE.  MAKE SURE THEY SEE A COPY OF IT.
 
16
 
17                   (PROCEEDINGS RECESSED.)
 
18
 
19       THE COURT:  BRIEFLY ON THE RECORD.  MR. WAIER IS NOT
 
20  PRESENT.  ALL THE OTHER ATTORNEYS ARE.  YOU WANT TO TRAIL TO
 
21  1:30, IT’s FINE.  IT’s 10 TO 12. I DID GIVE OPPOSING COUNSEL
 
22  C.C.P. 2025, WHICH MAYBE ANSWERS QUESTIONS AS TO WHETHER OR
 
23  NOT THE FURR DEPOSITION CAN BE READ.
 
24            I GAVE YOU ALSO THE RULE OF COURT 977, I BELIEVE,
 
25  RELATIVE TO UNPUBLISHED OPINIONS.  THERE ARE FEW CASES UNDER
 
26  THAT.  I AM LOOKING AT THE OPINION THAT THE PLAINTIFF WAS
 
27  TRYING TO GET IN.  IT’s TITLED TOM KERR, ET AL. VERSUS
 
28  LEGION FOR THE SURVIVAL OF FREEDOM.  THE ONLY THING I CAN
			
			

page 565
 
 
 
 1  FIND FROM THAT OPINION IS THAT MRS. CARTO IS NOT MENTIONED.
 
 2  I DON'T KNOW IF MR. KERR WAS A PLAINTIFF IN THAT ONE OR NOT.
 
 3       MR. BEUGELMANS:  YES, HE WAS THE PLAINTIFF.  HE DID
 
 4  RESIGN FROM THE BOARD BEFORE THE NOTICE OF APPEAL BEING
 
 5  FILED.
 
 6       THE COURT:  I MIGHT BE ABLE TO TAKE JUDICIAL NOTICE OF
 
 7  THIS OPINION ONLY AS TO MR. KERR, BUT NOT AS TO MRS. KERR
 
 8  BECAUSE THE APPELLATE OPINION SAYS SHE’s ABANDONED THE
 
 9  ISSUE.  IF SHE’s ABANDONED IT, I THINK PERHAPS YOU CAN'T USE
 
10  IT AGAINST HER.
 
11       MR. BEUGELMANS:  WE DO HAVE THE TRIAL COURT RULING
 
12  THOUGH IN WHICH THERE WAS A FINAL DECISION.  IT WAS NOT
 
13  APPEALED.  THEREFORE, WHATEVER JUDGE POLIS FOUND AT TRIAL IS
 
14  RES JUDICATA TO HER.  SHE CHOSE NOT TO APPEAL IT.  MR. KERR
 
15  DID APPEAL, AND WE HAVE A FINAL COURT OF APPEAL BEFORE THE
 
16  COURT AS TO MR. KERR.  I BELIEVE BOTH AS TO MRS. CARTO AND
 
17  KERR WE HAVE THE FINAL DECISIONS.
 
18       MR. LANE:  THIS IS THE ONE AREA I'M NOT FAMILIAR WITH.
 
19       THE COURT:  WE DIDN'T WANT TO ARGUE IT.  I WANT TO TELL
 
20  YOU WHAT I HAD DONE.  THEN TALK ABOUT THE RIGHT OF THE
 
21  MARITAL PRIVILEGE.  YOU CAN LOOK, BUT I HAVE HERE JEFFERSON
 
22  AND WITKIN, AND I LOOKED UP THE ANNOTATIONS UNDER 981 OF THE
 
23  EVIDENCE CODE.  I DON'T THINK THIS CAN COME IN.  THE
 
24  LEGISLATIVE NOTES ON THE SECTION WAS YOU HAVE TO READ THAT
 
25  SECTION IN A LIMITED FASHION.  THAT ONE I'M — I DON'T THINK
 
26  I'M GOING TO ALLOW HER TO BE QUESTIONED AS TO MR. CARTO AND
 
27  WHAT HE SAID TO HER, IF SHE DOESN'T WISH TO, AND I KNOW SHE
 
28  DOESN'T WISH TO.
			
			

page 566
 
 
 
 1       MR. BEUGELMANS:  PLAINTIFF WILL SUBMIT TO THE COURT'S
 
 2  RULING ON THAT ISSUE.
 
 3       THE COURT:  SEE YOU AT 1:30 THEN.  I WAS TOLD THAT
 
 4  THERE’s SOME PAPERS FILED ON THE NONSUIT UNDER 631.8.  IF
 
 5  EVERYONE HAS A COPY, I WOULD LIKE A COPY TOO.
 
 6       MR. LANE:  I WOULD LIKE ONE TOO.  WE'LL DO THAT OVER
 
 7  LUNCH.
 
 8       THE COURT:  OKAY.
 
 9       MR. BEUGELMANS:  I HAVE PREPARED OR MR. MUSSELMAN
 
10  PREPARED A MEMO OF LAW GIVING MR. LANE A COPY.  IF I COULD
 
11  GIVE THE COURT AN ORIGINAL.
 
12            THERE’s A COUPLE OF CASES, YOUR HONOR, WE PULLED
 
13  ON THE STATUTE OF LIMITATIONS.  I APOLOGIZE.  WE'VE WRITTEN
 
14  ON THEM.
 
15       THE COURT:  THAT’s ALL RIGHT.  DON'T NEED IT.  SEE YOU
 
16  AT 1:30.
 
17       MR. BEUGELMANS:  WOULD THE COURT OPEN AT 1 SO COUNSEL
 
18  CAN LOOK AT THE EXHIBITS TOGETHER?  IT MIGHT BE EASIER.
 
19       THE COURT:  I HAVE TO GET THE STAFF TO DO THAT.  I LIKE
 
20  TO GIVE THEM LUNCH.  SEE YOU AT 1:30.  BESIDES, YOU HAVE A
 
21  LOT OF WORK TO DO.
 
22
 
23                   (PROCEEDINGS RECESSED.)
 
24
 
25       THE COURT:  BACK IN SESSION.  WHAT IS THE STATUS OF THE
 
26  CASE, AS FAR AS THE PLAINTIFF IS CONCERNED?
 
27       MR. BEUGELMANS:  YOUR HONOR, IT DEPENDS ON THE COURT'S
 
28  INTENTION WITH RESPECT TO THE DEPOSITIONS OF THE FURRS.
			
			

page 567
 
 
 
 1       THE COURT:  I GAVE YOU A CODE SECTION.  SINCE THE
 
 2  PLAINTIFF IS THE ONE TRYING TO GET THIS IN, I THINK IT'S
 
 3  YOUR BURDEN TO SHOW IT SHOULD COME IN.  DOES THE CODE
 
 4  SECTION APPLY?
 
 5       MR. BEUGELMANS: CCP SECTION 2025(U)(3)(A)IS THE
 
 6  APPROPRIATE CODE SECTION.
 
 7            BOTH MR. AND MRS. FURR’s DEPOSITION WERE TAKEN IN
 
 8  THE STATE OF ARKANSAS IN THIS ACTION.  BOTH MR. AND
 
 9  MRS. FURR RESIDE IN THE STATE OF ARKANSAS.  THE DEPOSITION
 
10  OF MR. AND MRS. FURR WAS ESTABLISHED BY RANDALL WAIER,
 
11  COUNSEL FOR THE DEFENDANTS IN THIS ACTION.
 
12       THE COURT:  WHAT IS THE POSITION OF THE DEFENSE ON
 
13  ADMITTING THE FURR DEPOSITION?
 
14       MR. WAIER:  YOUR HONOR, FIRST OF ALL, THERE’s A
 
15  THRESHOLD ISSUE.  I DO AGREE WITH THE COURT IN ITS
 
16  RECITATION OF CCP 2025(U) AS BEING THE EFFECTIVE STATUTE IN
 
17  THIS AREA.  HOWEVER, THERE HAS TO BE A THRESHOLD SHOWING BY
 
18  THE PLAINTIFF, WHICH HAVE NOT BEEN SHOWN BY ANY EVIDENCE,
 
19  ONE: THE VERY FIRST THING IS THAT THERE’s A CONDITION BEFORE
 
20  YOU GET INTO THIS 150 MILE RADIUS, AND THAT IS THAT ALL
 
21  PARTIES WERE EITHER PRESENT AND/OR REPRESENTED AT THE
 
22  PARTICULAR DEPOSITION.
 
23            THERE’s BEEN NO EVIDENCE PLACED BEFORE THIS COURT
 
24  THAT ALL PARTIES WERE REPRESENTED.  I WILL ADMIT TO THIS
 
25  COURT THAT I WAS THERE, BUT I WAS APPEARING ON BEHALF OF THE
 
26  FURRS, AS WELL WITH RESPECT TO A SPECIAL PROCEEDING IN WHICH
 
27  WE'RE TRYING TO SET ASIDE A MOTION, OR WE'RE TRYING TO SET
 
28  ASIDE A DEFAULT WE FELT WAS IMPROPERLY TAKEN AGAINST THEM.
			
			

page 568
 
 
 
 1  THERE’s A THRESHOLD ISSUE.
 
 2            THE SECOND THRESHOLD ISSUE IS THAT THERE’s BEEN NO
 
 3  EVIDENCE PER SE THAT THEY ACTUALLY RESIDE IN ARKANSAS; AND
 
 4  ALTHOUGH THAT MAY BE FORM OVER SUBSTANCE, BEFORE YOU CAN
 
 5  READ A DEPOSITION, YOU MUST SHOW THAT THEY ACTUALLY RESIDED
 
 6  IN THAT STATE.
 
 7       THE COURT:  HOW WOULD YOU PROVE THAT UNLESS YOU GOT
 
 8  THEM IN HERE?  THERE’s NO SUCH THING AS A NATIONAL I.D. CARD
 
 9  WHERE IT SHOWS WHERE YOU LIVE.
 
10       MR. WAIER:  RESIDENCE IS A LEGAL DEFINITION.  THERE’s A
 
11  DEFINITION OF RESIDENCE.  FOR EXAMPLE, I CAN BE IN ARKANSAS
 
12  AND RESIDE IN CALIFORNIA.  IN FACT, I MAY EVEN HAVE A HOUSE
 
13  IN ARKANSAS AND STILL RESIDE AND HAVE MY RESIDENCE IN
 
14  CALIFORNIA.  THAT MEANS I HAVE TWO RESIDENCES.  AND IF IN
 
15  FACT MY RESIDENCE HERE IN CALIFORNIA HAPPENS TO BE WITHIN
 
16  THE 150 MILE RADIUS OF THIS COURT, I SUSPECT THIS COURT
 
17  WOULD HAVE — CAN COMPEL ME BY PROCESS BECAUSE OF A
 
18  RESIDENCE HERE.  THE MERE FACT I'M OUT OF STATE, WHETHER I'M
 
19  TEMPORARILY OR FROM ONE POINT OF VIEW EVEN PERMANENT,
 
20  DOESN'T NECESSARILY TAKE AWAY THE RESIDENCE.  THAT BURDEN
 
21  HAS NOT BEEN MET BY THE PLAINTIFF.
 
22            FINALLY, UNLESS THEY CAN LODGE THE ORIGINAL OF THE
 
23  DEPOSITION TRANSCRIPT, AND THEY HAVE NOT REQUESTED THE
 
24  ORIGINAL TO BE LODGED WITH THIS COURT, A COPY CANNOT BE
 
25  USED, AND THEY HAVE A BURDEN OF SHOWING THAT AN ORIGINAL --
 
26  THEY WENT AND SOUGHT AN ORIGINAL TO BE LODGED AND READ FROM,
 
27  AND THAT ORIGINAL WAS MADE UNAVAILABLE.  THEY HAVEN'T DONE
 
28  THAT.  THAT’s A WHOLE DIFFERENT BALL GAME BEFORE YOU GET
			
			

page 569
 
 
 
 1  UNDER — THE ISSUES UNDER CCP 2052.  YOU HAVE THE THRESHOLD
 
 2  REQUIREMENT OF THE ORIGINAL DEPOSITION TRANSCRIPT.  THERE'S
 
 3  BEEN NO EVIDENCE NOR HAS THERE BEEN ANY TESTIMONY THEY MADE
 
 4  A DEMAND FOR THE ORIGINAL.  THERE’s NOTHING IN WRITING FOR
 
 5  THE DEMAND FOR THE ORIGINAL.
 
 6            INDEED I MIGHT ADD THERE’s BEEN NO EFFORT OR
 
 7  DILIGENCE ON THEIR PART TO GET THE ORIGINAL.  THE ORIGINAL
 
 8  WAS PLACED ON — THE STIPULATION OF THE PARTIES WERE TO BE
 
 9  HELD BY THE COURT REPORTER.  THERE’s NO INDICATION BY
 
10  MR. BEUGELMANS THAT HE ACTUALLY WROTE TO THAT COURT REPORTER
 
11  TO ASK FOR THOSE ORIGINALS OR THAT HE SOUGHT TO GET THE
 
12  ORIGINALS FROM THE COURT REPORTER.
 
13       THE COURT:  MR. BEUGELMANS.
 
14       MR. BEUGELMANS:  I BELIEVE, YOUR HONOR, IT WILL BE 20
 
15  YEARS AGO TOMORROW THAT I WAS SWORN IN AS A MEMBER OF THE
 
16  BAR OF CALIFORNIA.  AND IN THE 20 YEARS I NEVER BEEN
 
17  CONFRONTED WITH THE CHICANERY OF THE TYPE MR. WAIER
 
18  PROPOUNDED BEFORE THE COURT.
 
19            IF I MAY MAKE THE FOLLOWING OFFER OF PROOF.  THE
 
20  DEPOSITIONS OF MR. AND MRS. FURR WERE TAKEN IN THE ACTION
 
21  MARCH 22, 1996.  THE DEPOSITIONS WERE NOTICED BY RANDALL
 
22  WAIER, ESQUIRE, OF THE LAW FIRM OF WAIER AND URTNOWSKI.
 
23            ATTACHED AS EXHIBIT 1 TO THE DEPOSITION TRANSCRIPT
 
24  IS THE NOTICE OF TAKING DEPOSITION.  THE NOTICE WAS NOT
 
25  SERVED UPON MR. LANE OR ANYBODY ALSO OTHER THAN MYSELF AND
 
26  MR. MUSSELMAN.  AT THE DEPOSITION, YOUR HONOR, MR. WAIER
 
27  STATED HE WAS APPEARING ON BEHALF OF ALL DEFENDANTS.  IN
 
28  FACT, THE CAPTION OF BOTH DEPOSITIONS OF MR. AND MRS. FURR
			
			

page 570
 
 
 
 1  SHOWED HIM APPEARING ON BEHALF OF THE DEFENDANTS.
 
 2            IN THE PAST, YOUR HONOR, THE COURT WILL NOTE FROM
 
 3  LOOKING AT THE 8 VOLUMES MR. WAIER HAS APPEARED EXCLUSIVELY
 
 4  ON BEHALF OF ALL THE DEFENDANTS WITH THE EXCEPTION OF
 
 5  MR. LANE APPEARING TODAY — MR. LANE — EXCUSE ME,
 
 6  MR. URTNOWSKI AND WAIER HAVE APPEARED CONSISTENTLY ON BEHALF
 
 7  OF ALL DEFENDANTS, INCLUDING THE LAST PARTIES BEFORE JUDGE
 
 8  MURPHY IN THE MATTER.
 
 9            YOUR HONOR, THE VERY FIRST PAGE OF THE DEPOSITION
 
10  OF MRS. FURR UNDER QUESTIONING BY MR. — MY ESTEEM
 
11  COLLEAGUE, MR. WAIER:
 
12            “QUESTION:  WHERE DO YOU RESIDE?
 
13            “ANSWER:  260 MORPHEW ROAD, HOT SPRINGS,
 
14  ARKANSAS."
 
15            LAST, I DON'T WANT TO BELABOR AND WASTE THE
 
16  COURT’s TIME, MR. WAIER HAS STATED IN OPEN COURT THAT HE IS
 
17  THE ATTORNEY FOR THE FURRS.  HE WAS OUTRAGED THE OTHER DAY I
 
18  ATTEMPTED TO CONTACT THE FURRS.  HE ALLEGED I ATTEMPTED TO
 
19  CONTACT THE FURRS, WHICH I HAVE NEVER DONE, EX PARTE.
 
20            I HAVE MADE REPEATED REQUESTS OF THIS COURT IN THE
 
21  PRESENCE OF THIS COURT THAT MR. WAIER LODGE MR. AND MRS.
 
22  FURR’s TRANSCRIPT, BECAUSE I WAS ANTICIPATING THE TYPE OF
 
23  NONSENSE THAT THE COURT IS CONFRONTED WITH NOW WHEN IT SAYS
 
24  THERE WAS NO LODGING OF THE TRANSCRIPT.
 
25            AS AN OFFICER OF THE COURT, LET ME REPRESENT TO
 
26  YOU THAT THERE IS A DEMAND FOR LODGMENT THAT WAS FILED IN
 
27  THE RECORDS OF THE COURT, ORIGINAL.  I HAVE A DATE-STAMPED
 
28  COPY I CAN PRODUCE AT THE BREAK.  AND FURTHERMORE, YOU WERE
			
			

page 571
 
 
 
 1  PRESENT AS FAR BACK AS LAST WEDNESDAY, I BELIEVE, WHEN I
 
 2  MADE A REQUEST TO THE COURT THAT MR. WAIER LODGE THESE
 
 3  TRANSCRIPTS WITH THE COURT.
 
 4            I DO HAVE CERTIFIED COPIES.  I HAVE A LETTER, AS
 
 5  MR. WAIER DOES, BECAUSE HE SENT IT TO ME FROM THE COURT
 
 6  REPORTER CORROBORATING SIGNATURE AND CORRECTIONS TO BOTH
 
 7  DEPOSITIONS, YOUR HONOR.
 
 8       THE COURT:  MR. WAIER, ANYTHING NEW?
 
 9       MR. WAIER:  WELL, FIRST OF ALL, I WOULD LIKE TO THIS
 
10  STATEMENT OF CHICANNERY I PERSONALLY DISLIKE ON THE COURT
 
11  RECORD.  THAT IS IMPROPER FOR AN ATTORNEY TO MAKE STATEMENTS
 
12  LIKE THAT ABOUT ANOTHER ATTORNEY.  BUT TALKING ABOUT
 
13  CHICANNERY, I DIDN'T SAY TO THIS COURT ABOUT
 
14  MR. BEUGELMANS’s ACTIVITIES AND CONTACT WITH THE FURRS.  IT
 
15  HAD TO BE WITH TOM KERR.  I NEVER MADE A STATEMENT WITH
 
16  RESPECT TO THE FURRS.  MAYBE THAT WILL HELP REFRESH HIS
 
17  RECOLLECTION OR HIS FEEBLE RECOLLECTION OF EXACTLY WHAT TOOK
 
18  PLACE.
 
19            SECOND OF ALL, YOUR HONOR, THE DEPOSITIONS
 
20  PURSUANT TO COUNSEL REMAIN WITH THE COURT REPORTER AS SUCH
 
21  THE ORIGINAL, AND THAT WAS WITH RESPECT TO MR. BEUGELMANS
 
22  AND MYSELF WHEN WE WERE THERE, AND THE ORIGINAL MUST BE
 
23  PRODUCED.  THERE HAS BEEN NO EFFORT TO SHOW IT'S
 
24  UNAVAILABLE.  THERE’s NO EFFORT TO SHOW WHAT ACTIONS HE TOOK
 
25  TO GET IT.  HE COULD HAVE CONTACTED THE COURT REPORTER,
 
26  WHICH WAS A RIGHT TO DO AND AT THAT POINT IN TIME IF SOMEONE
 
27  WAS REFUSED THE ORIGINAL, HE THEN AND THEREAFTER COULD
 
28  REQUEST THE COURT USE A CERTIFIED COPY.  THAT’s NOT WHAT
			
			

page 572
 
 
 
 1  OCCURRED HERE.
 
 2            YOUR HONOR, RULINGS OF PROCEDURE AND RULES OF
 
 3  EVIDENCE WERE ENACTED BY THE LEGISLATURE NOT FOR
 
 4  MR. BEUGELMANS TO CHANGE, NOT FOR MR. BEUGELMANS TO SOMEHOW
 
 5  BELIEVE HE CAN CHANGE HIS JUDGMENT OR YOURS AND/OR THE
 
 6  LEGISLATURE.  THEREFORE, YOUR HONOR HE HAS NOT MET THE
 
 7  THRESHOLD WHY THE ORIGINAL IS NOT HERE.  HE HAD TO GO TO THE
 
 8  COURT REPORTER TO GET IT.  HE HAS NOT SHOWN ANY DILIGENCE ON
 
 9  THAT ASPECT.
 
10       THE COURT:  ANYTHING ELSE?
 
11       MR. BEUGELMANS:  NO.
 
12       THE COURT:  THE DEPOSITION WILL BE ADMITTED OVER THE
 
13  DEFENSE OBJECTION.
 
14            WHAT IS THE NEXT ISSUE BEFORE YOU REST?
 
15       MR. LANE:  IS THAT DEPOSITION FOR BOTH MR. AND MRS.
 
16  FURR?
 
17       THE COURT:  YOU ONLY WANTED MRS. FURR, RIGHT?
 
18       MR. BEUGELMANS:  ONE DEPOSITION.  TWO VOLUMES AND ONE
 
19  VERY BRIEF DEPOSITION OF MR. FURR.
 
20            WHAT I WAS THINKING I WOULD DO IS I SELECTED WHAT
 
21  MR. MUSSELMAN AND I BELIEVE ARE THE SALIENT PORTIONS OF THE
 
22  DEPOSITION TO READ IN THE RECORD, IF THE COURT WOULD PERMIT
 
23  THAT.  IT WOULD PROBABLY TAKE HALF AN HOUR, MAYBE 45
 
24  MINUTES.
 
25       THE COURT:  I THINK IF I ADMIT IT YOU ADMIT THE WHOLE
 
26  THING.
 
27       MR. WAIER:  THAT’s CORRECT.
 
28       MR. LANE:  THAT’s WHAT WE PREFER, AND THE COURT CAN
			
			

page 573
 
 
 
 1  READ IT WITHOUT US PRESENT.
 
 2       MR. BEUGELMANS:  I APOLOGIZE.  I MADE NOTES, BUT I WILL
 
 3  TAKE AWAY MY POST-ITS AND NOTES AND GIVE TO THE COURT FOR
 
 4  FILING.
 
 5       THE COURT:  GO TO THE NEXT ISSUE.  I LEFT MY NOTES IN
 
 6  MY OFFICE.  I WILL USE MY MEMORY HERE.
 
 7       MR. LANE:  SPOUSAL QUESTION.
 
 8       MR. BEUGELMANS:  YOUR HONOR, THE PLAINTIFF WILL SUBMIT
 
 9  TO THE COURT’s JUDGMENT ON THAT ISSUE.
 
10       THE COURT:  MRS. CARTO CAN BE EXAMINED TO WHAT
 
11  MR. CARTO SAID TO HER.  WHAT SHE SAID TO HIM, AND LIKEWISE
 
12  WHAT MR. CARTO — WHAT HE SAID TO HER, AND SHE SAID TO HIM,
 
13  THAT’s ALL MARITAL PRIVILEGE AS I SEE IT.
 
14       MR. LANE:  THE LAST MATTER WAS THE QUESTION OF JUDICIAL
 
15  MATTER REGARDING THE KERR SECTION.
 
16       THE COURT:  I GAVE YOU SOME SECTIONS TO READ.  MY
 
17  INCLINATION AS TO THAT I — THAT THE CITED OPINION COULD BE
 
18  USED ONLY FOR WHATEVER IT’s WORTH AS TO MR. CARTO NOT AS TO
 
19  MRS. CARTO.  SHE GAVE UP HER APPEAL.  I CAN TAKE JUDICIAL
 
20  NOTICE FOR THAT PURPOSE.
 
21       MR. LANE:  YOUR HONOR, I DON'T BELIEVE THAT LIBERTY
 
22  LOBBY WAS A PARTY IN THAT MATTER.
 
23       THE COURT:  I WAS WONDERING ABOUT THAT.
 
24       MR. LANE:  IF NOT, I DON'T SEE HOW THAT CAN COME IN IN
 
25  THIS CASE.
 
26       MR. WAIER:  NOR WAS HENRY FISCHER.
 
27       THE COURT:  THEY WEREN'T.  I SAID ONLY MR. CARTO COULD
 
28  HAVE THIS USED AGAINST HIM FOR WHATEVER IT’s WORTH.
			
			

page 574
 
 
 
 1       MR. WAIER:  MR. CARTO WAS NEITHER A PARTY IN THAT
 
 2  ACTION EITHER.
 
 3       THE COURT:  THAT’s WHAT I WAS — WHY I ASKED YOU.  I
 
 4  SAID THE OPINION.  I HAVE SAID TOM KERR, ET AL.
 
 5       MR. WAIER:  THAT’s CORRECT.  IT REFERS TO TOM KERR.
 
 6  TOM KERR WAS THE PARTY IN THE ACTION, NOT WILLIS CARTO, NOT
 
 7  ELISABETH CARTO, ELISABETH, NEITHER LIBERTY LOBBY OR HENRY
 
 8  FISCHER OR VIBET OR ANY OTHER OTHER THAN MR. KERR.
 
 9       MR. BEUGELMANS: IF I CAN GET TO THE HEART OF IT.  THE
 
10  PLAINTIFF IS INTRODUCING THIS FOR THE SIMPLE PURPOSE OF
 
11  SHOWING AS A MATTER OF LAW IT’s BEEN ESTABLISH BY THE COURTS
 
12  AS OF SEPTEMBER 1993 THE ONLY DIRECTOR — AS OF SEPTEMBER, I
 
13  BELIEVE, 16, 1993, THE ONLY DIRECTOR OF THE CORPORATION WAS
 
14  MR. KERR.  THAT’s THE GIST OF IT.  AND THAT HE THEREAFTER,
 
15  AS TESTIFIED, THERE WERE NEW DIRECTORS APPOINTED THEREAFTER.
 
16       THE COURT:  I KNOW THAT’s WHAT YOU WANT TO DO.  THAT
 
17  MAY BE WHAT I FIND TO BE THE FACTS AFTER LISTENING TO THE
 
18  EVIDENCE; BUT YOU WANT ME TO SAY I'M BOUND BY THIS OPINION
 
19  BY TAKING JUDICIAL NOTICE OF IT.  IT’s A FACTUAL QUESTION.
 
20  WAS MR. CARTO A PLAINTIFF IN THAT CASE OR NOT?
 
21       MR. WAIER:  NO, HE WAS NOT.
 
22       MR. BEUGELMANS:  HE WAS NOT.
 
23       THE COURT:  THEN I WON'T TAKE JUDICIAL NOTICE.
 
24       MR. BEUGELMANS:  THE RELEVANCE OF THE DOCUMENT IS AS A
 
25  MATTER OF LAW MRS. CARTO HAS NOT AND IS NOT LEGALLY A
 
26  DIRECTOR OF LEGION SINCE SEPTEMBER 1993.  THANK YOU.
 
27       THE COURT:  OVER THE PLAINTIFFS' OBJECTION, I WON'T
 
28  ADMIT EXHIBIT 201.  THAT IS, I WON'T TAKE JUDICIAL NOTICE OF
			
			

page 575
 
 
 
 1  THAT.  I READ IT.  I WON'T TAKE JUDICIAL NOTICE, THOUGH.
 
 2       THE CLERK:  IT’s ADMITTED?
 
 3       THE COURT:  IT’s NOT ADMITTED.  I'M NOT GOING TO
 
 4  CONSIDER IT.  I WON'T TAKE JUDICIAL NOTICE OF THAT
 
 5  PARTICULAR COURT OF APPEALS OPINION.
 
 6            THE NEXT THING WAS JUDICIAL NOTICE AS TO THE LACK
 
 7  OF A RECORD.  THE OBJECTION TO THAT WAS WHAT?
 
 8       MR. WAIER:  FIRST OF ALL, THERE’s NO OFFICIAL SEAL ON
 
 9  THAT PARTICULAR DOCUMENT.
 
10            SECOND OF YOU ALL, IT IS NOT AN OFFICIAL ACT THAT
 
11  HAS BEEN — AT LEAST THE BURDEN HAS NOT BEEN SHOWN THERE'S
 
12  AN OFFICIAL ACT.  THE OFFICIAL ACT DOCTRINE TALKS ABOUT
 
13  SOMEBODY LIKE A CLERK STAMPING THINGS COMING INTO THE
 
14  SECRETARY OF STATE’s OFFICE.  THIS IS NOT AN OFFICIAL ACT.
 
15  IF YOU TAKE A LOOK AT WHAT YOU MAY TAKE JUDICIAL NOTICE OF,
 
16  IT DOESN'T COME UNDER ANY OF THOSE CATEGORIES.  AND THERE'S
 
17  BEEN NO EVIDENCE THAT THAT CONSTITUTES AN OFFICIAL ACT DONE
 
18  AT OR ABOUT THE TIME AND SO FORTH.  THERE’s NO FOUNDATION
 
19  FOR THAT DOCUMENT.
 
20       THE COURT:  ANY ARGUMENT BY THE PLAINTIFF ON THIS
 
21  ISSUE?
 
22       MR. BEUGELMANS:  YOUR HONOR, THE DECLARATION OF THE
 
23  ATTORNEY GENERAL IN THIS MATTER COMES INTO EVIDENCE UNDER
 
24  EVIDENCE CODE SECTION 1284.  IT’s AN OFFICIAL DOCUMENT.
 
25  CERTIFIES THERE’s NO RECORD.  I BELIEVE THAT’s WHY THE
 
26  LEGISLATURE ENACTED SUCH TO PERMIT THIS EVIDENCE TO COME
 
27  IN.  IF THE RECORD EXISTED, WE WOULD ADMIT THE RECORD.  IN
 
28  THE ABSENCE OF A RECORD, WE HAVE TO GET SOME KIND OF AN
			
			

page 576
 
 
 
 1  OFFICIAL CORROBORATION OF THAT IN THE FORM OF A
 
 2  DECLARATION.
 
 3            AND IT’s NOT HEARSAY.  THIS WAS — THIS CODE
 
 4  SECTION WAS ENACTED TO FACILITATE THE PROOF THAT SUCH
 
 5  DOCUMENTS DO NOT EXIST IN THE PUBLIC RECORD.
 
 6       THE COURT:  HOLD ON A MINUTE.  I'LL GET SOME STUFF.
 
 7                            (PAUSE)
 
 8       THE COURT:  WHY DOESN'T 1284 CONTROL IN THIS CASE?
 
 9       MR. WAIER:  BECAUSE, YOUR HONOR, SHE DOES NOT TESTIFY,
 
10  FIRST OF ALL, THAT SHE’s THE OFFICIAL CUSTODIAN OF THE
 
11  RECORDS.  THAT’s THE FIRST INSTANCE.
 
12            AND IF YOU TAKE — YES, SHE DOES.  I TAKE THAT
 
13  BACK.  SHE DOES STATE THAT.  I APOLOGIZE.
 
14            YOUR HONOR, I WOULD OBJECT ON ONE PORTION OF IT.
 
15  I HATE TO BE HYPERTECHNICAL.  IF YOU LOOK AT PARAGRAPH 4,
 
16  PAGE 2, IT REFERS NOT ONLY TO THIS CASE DECLARANT.  SHE IS
 
17  RECITING HEARSAY WHEN SHE SAYS THE RECORDS REFERRED TO ABOVE
 
18  WERE PREPARED BY PERSONNEL IN THE ABOVE-NAMED BUSINESS IN
 
19  THE ORDINARY COURSE OF BUSINESS AT OR NEAR THE TIME OF THE
 
20  CONDITIONS OR EVENTS WERE RECORDED.  THAT’s HEARSAY.  AND I
 
21  UNDERSTAND THIS MAY GET AROUND THE HEARSAY RULE IN AND OF
 
22  ITSELF.  WHAT SHE SAYS IN THIS DECLARATION, WHAT SHE SAYS,
 
23  SHE SAYS SHE DOESN'T HAVE TO APPEAR AND TESTIFY.  IF YOU ARE
 
24  SAYING THAT UNDER 1284 CERTAINLY SHE CAN NOT TESTIFY WITHIN
 
25  A DOCUMENT.  THIS IS NOT AN OFFICIAL ACT.  THE RECORDS
 
26  REFERRED TO ABOVE WERE REFERRED TO IN THE ABOVE-NAMED
 
27  BUSINESS.
 
28       THE COURT:  ANYTHING BY THE PLAINTIFF OR DEFENSE?
			
			

page 577
 
 
 
 1       MR. LANE:  I HAVE SOMETHING.
 
 2       MR. BEUGELMANS: NO.
 
 3       MR. LANE:  OBJECTION ON THE GROUNDS OF RELEVANCY.
 
 4  THERE IS NO CLAIM THAT HE DISPOSED OF SUBSTANTIALLY ALL OF
 
 5  THE ASSETS.  THE CLAIM IS THAT THE AGREEMENT WAS MADE WHEN
 
 6  THERE WERE NO ASSETS, MERELY A CLAIM.  THE LEGION DID NOT
 
 7  HAVE ASSETS.  WHAT THE LEGION HAD AT BEST WAS A DOUBTFUL
 
 8  CLAIM THAT SOMEONE WOULD HAVE TO INVEST SEVERAL HUNDRED
 
 9  THOUSAND DOLLARS TO SEE IF THEY CAN SECURE SOMETHING.
 
10  THEREFORE, THERE WOULD BE NO NEED TO FILE A DOCUMENT SAYING
 
11  WE ARE DISPOSING OF OUR ASSETS.  THERE WERE NO ASSETS.
 
12       THE COURT:  WELL, ONE OF THE ARGUMENTS I HAVE HEARD,
 
13  EVEN IF THE ASSETS CAME INTO THE POSSESSION OF THE LEGION,
 
14  THE LEGION, I THINK THE MARCH 5TH MEETING, SAID THAT WE
 
15  DON'T WANT THE ASSETS, AND THEY CAN BE DISTRIBUTED
 
16  ELSEWHERE.  AS I UNDERSTAND THE LAW, IN ORDER TO DO THAT YOU
 
17  HAVE TO FILE A STATEMENT WITH THE ATTORNEY GENERAL TO DO
 
18  THAT.
 
19            I THINK IT’s RELEVANT.  I'LL OVERRULE THE
 
20  OBJECTION BY THE DEFENSE ON EXHIBIT NUMBER 200, AND THAT
 
21  WILL BE ADMITTED.
 
22
 
23            (COURT’s EXHIBIT NO. 200 RECEIVED IN EVIDENCE.)
 
24
 
25       MR. WAIER:  YOUR HONOR, I ALSO — I UNDERSTAND YOU MADE
 
26  YOUR RULING, BUT I'M NOT CLEAR THAT THIS SECTION APPLIES TO
 
27  A FOREIGN NONPROFIT CORPORATION.  THE EVIDENCE IS THAT THE
 
28  LEGION IS A FOREIGN NONPROFIT CORPORATION, A TEXAS NONPROFIT
			
			

page 578
 
 
 
 1  CORPORATION.  I'M NOT SURE THEY'RE REQUIRED UNDER CALIFORNIA
 
 2  LAW TO DO THIS.  I KNOW THAT CERTAIN SECTIONS OF THE
 
 3  NONPROFIT PUBLIC BENEFIT CODE OR CORPORATIONS CODE DOES GO
 
 4  TO CERTAIN THINGS THAT FOREIGN CORPORATIONS NONPROFIT MUST
 
 5  NOT DO.  I'M NOT SURE THIS IS ONE OF THEM.
 
 6            I WOULD LIKE FURTHER ADDITIONAL — BE ABLE TO DO
 
 7  FURTHER RESEARCH ON THAT ISSUE TO SHOW THE RELEVANCY WITH
 
 8  THIS.
 
 9       THE COURT:  YOU COME UP WITH SOMETHING, BRING IT TO MY
 
10  ATTENTION.  I DON'T WANT TO MAKE AN ERROR; BUT AS I
 
11  UNDERSTAND THE LAW, IF YOU DO BUSINESS IN THE STATE OF
 
12  CALIFORNIA, THE PRINCIPAL PLACE OF BUSINESS, YOU ARE
 
13  CONTROLLED BY THE LAWS OF THE STATE OF CALIFORNIA, EVEN IF
 
14  YOU ARE INCORPORATED OUTSIDE THE STATE OF CALIFORNIA.
 
15       MR. MUSSELMAN:  LAW DIRECTLY ON POINT ON THAT, PAGE 2
 
16  OF THE BRIEF THAT WE SUBMITTED TO OPPOSE THE MOTION SEEKING
 
17  A JUDGMENT.
 
18       THE COURT:  THERE’s A DISCUSSION OF THAT IN WITKIN
 
19  ALSO.  GO TO THE WITKIN CORPORATIONS, AND THEY HAVE A WHOLE
 
20  SECTION ON THIS TYPE OF A CORPORATION.
 
21            OVERRULE THE OBJECTION.  IF THERE’s SOMETHING I
 
22  MISSED, BRING IT TO MY ATTENTION.
 
23            I THINK THAT TAKES CARE OF THOSE MATTERS.  HOW ARE
 
24  WE DOING ON THE EVIDENCE?
 
25       MR. BEUGELMANS:  YOUR HONOR, THERE’s ONLY ONE OTHER
 
26  POINT.  WITH RESPECT TO HENRY FISCHER, I WOULD LIKE — I ASK
 
27  THE COURT FOR PERMISSION TO RECALL MR. CARTO TO THE STAND
 
28  BRIEFLY ONLY TO ASK HIM HOW AND HOW MUCH MR. FISCHER WAS
			
			

page 579
 
 
 
 1  COMPENSATED FROM THE FARREL ESTATE.  I OMITTED THAT WHEN I
 
 2  QUESTIONED HIM.  I BELIEVE IT’s RELEVANT.  AT THAT POINT WE
 
 3  WOULD REST SUBJECT TO THE EXHIBITS.
 
 4       THE COURT:  ANY OBJECTION TO THAT?
 
 5       MR. LANE:  MAY WE HAVE A MOMENT?
 
 6       THE COURT:  SURE.  IF IT HELPS AT ALL, I NORMALLY WILL
 
 7  ALLOW PEOPLE TO REOPEN BECAUSE THEY JUST FORGOTTEN
 
 8  SOMETHING.  THE WHOLE IDEA IS --
 
 9       MR. LANE:  THAT DOESN'T HELP US A LOT.
 
10       MR. WAIER:  WE STILL HAVE TO PRESERVE A RECORD.
 
11       THE COURT:  THAT’s TRUE.  YOU DO.  GO OFF THE RECORD
 
12  WHILE THEY TALK.
 
13
 
14            (MR. LANE, MR. WAIER AND MR. CARTO LEFT THE
 
15            COURTROOM AND SUBSEQUENTLY RETURNED.)
 
16
 
17       THE COURT:  BACK ON THE RECORD.  ANY OBJECTION TO
 
18  MR. CARTO TAKING THE STAND AGAIN?
 
19       MR. WAIER:  YOUR HONOR, I HATE TO DO THIS.  IF I CAN,
 
20  I'M GOING TO — ACTUALLY, I GOT A BUM LEG.  I NEED TO GO OUT
 
21  TO THE CAR TO GET HIS DEPOSITION AND BRING IT BACK.  CAN I
 
22  DO THAT?
 
23       THE COURT:  WHOSE DEPOSITION?
 
24       MR. WAIER:  WILLIS Carto’s.  TAKE ME TWO SECONDS.
 
25       THE COURT:  IT WON'T TAKE TWO SECONDS.
 
26                            (PAUSE)
 
27            BACK ON THE RECORD.  ANY OBJECTION TO MR. CARTO
 
28  TAKING THE STAND?
			
			

page 580
 
 
 
 1       MR. WAIER:  NO OBJECTION TO REOPENING, YOUR HONOR.
 
 2       THE COURT:  SIR, IF YOU WOULD HAVE A SEAT THERE,
 
 3  PLEASE.
 
 4
 
 5                          WILLIS CARTO,
 
 6  CALLED AS A WITNESS ON BEHALF OF THE PLAINTIFF, HAVING BEEN
 
 7  PREVIOUSLY SWORN, TESTIFIED AS FOLLOWS:
 
 8                        DIRECT EXAMINATION
 
 9  BY MR. BEUGELMANS:
 
10       Q    MR. CARTO, DO YOU UNDERSTAND THAT YOU ARE STILL
 
11  UNDER OATH, SIR?
 
12       A    YES.
 
13       Q    MR. CARTO, DID HENRY FISCHER ASSIST YOU IN THE
 
14  RECOVERY OF THE FARREL ASSETS — STRIKE THAT — OF THE NECA
 
15  ASSETS?
 
16       A    I BELIEVE I TESTIFIED THAT HE HAS.
 
17       Q    AND DID MR. FISCHER HAVE SIGNATURE POWER ON ONE OR
 
18  MORE ACCOUNTS OPENED BY EITHER VIBET, INC. OR THE
 
19  INTERNATIONAL LEGION FOR THE SURVIVAL OF FREEDOM, INC.?
 
20       A    HE WAS ISSUED A POWER OF ATTORNEY BY THE BOARD AND
 
21  ENABLING HIM TO DO CERTAIN THINGS, TAKE CERTAIN ACTIONS.  I
 
22  BELIEVE THAT OPENING UP A BANK ACCOUNT WAS INCLUDED WITHIN
 
23  THOSE POWERS.
 
24       Q    AND WAS HE ALSO GIVEN PERMISSION TO SIGN CHECKS ON
 
25  ANY BANK ACCOUNTS THAT WERE OPENED IN CONNECTION WITH THE
 
26  FARREL RECOVERY?
 
27       A    I'M NOT SURE HE WAS.  I COULDN'T SAY FOR SURE.
 
28       Q    DID MR. FISCHER ADVANCE ANY COSTS IN CONNECTION
			
			

page 581
 
 
 
 1  WITH THE LITIGATION INVOLVING THE FARREL BEQUEST?
 
 2       A    CERTAINLY DID.
 
 3       Q    DID HE EVER PROVIDE YOU WITH AN ACCOUNTING OF THE
 
 4  COSTS THAT HE ALLEGEDLY ADVANCED?
 
 5       A    NOT IN WRITING.
 
 6       Q    DID HE KEEP A RECORD OF HIS ALLEGED EXPENSES?
 
 7       A    I THINK SO.  I COULDN'T TESTIFY DIRECTLY ON THAT
 
 8  POINT.
 
 9       Q    I WOULD LIKE TO READ FROM THE DEPOSITION, SIR,
 
10  STARTING AT PAGE 152, LINE 8 THROUGH 14.
 
11       MR. WAIER:  LINE 8?
 
12       MR. BEUGELMANS:  THROUGH 14.
 
13       MR. WAIER:  I'M GOING TO OBJECT AND MOVE TO STRIKE A
 
14  PORTION OF IT BASED ON HEARSAY.  LACKS FOUNDATION.
 
15       THE COURT:  I WON'T KNOW UNTIL I HEAR IT.  THAT’s THE
 
16  PROBLEM.  IF AFTER HEARING IT SHOULDN'T BE THERE, I WON'T
 
17  CONSIDER IT.
 
18       MR. WAIER:  OKAY.  I CAN SHOW YOU A COPY.  MAY I SHOW
 
19  THE DEPOSITION TO MR. CARTO IF HE’s GOING TO BE READING IT?
 
20       THE COURT:  THAT’s FINE.
 
21
 
22  BY MR. BEUGELMANS:
 
23       Q   “QUESTION:  WAS MR. FISCHER COMPENSATED FOR HIS
 
24  TIME?  WAS IT SOME KIND OF AN AGREEMENT BASED ON RECORDS HE
 
25  KEPT OR A FLAT FEE FOR ALL THE HELP HE PUT INTO IT?
 
26            “ANSWER:  WELL, IT WAS JUST A — IT WAS A PAYMENT
 
27  TO REIMBURSE HIM FOR WHAT HE DID.  IT WAS ROUGH.  HE DID NOT
 
28  KEEP A RECORD OF HIS EXPENSES."
			
			

page 582
 
 
 
 1       MR. WAIER:  MY OBJECTION WAS I MOVE TO STRIKE AS BEING
 
 2  NONRESPONSIVE.  ALSO, IT LACKS FOUNDATION.
 
 3       THE COURT:  OVERRULED.  I'M NOT SURE IT IMPEACHES HIM,
 
 4  THOUGH.  IN FACT, I DON'T THINK IT DOES.
 
 5       THE WITNESS:  I DON'T UNDERSTAND.  WHAT I TESTIFIED
 
 6  HERE SEEMS TO BE IN CONFORMITY WITH WHAT I JUST SAID.
 
 7
 
 8  BY MR. BEUGELMANS:
 
 9       Q    MR. CARTO, HOW MUCH DID MR. FISCHER RECEIVE FROM
 
10  THE MONIES THAT WENT INTO VIBET AND INTO THE INTERNATIONAL
 
11  LEGION ACCOUNTS FROM THE ESTATE OF JEAN FARREL?
 
12       A    AS TO A SPECIFIC AMOUNT I CANNOT SAY.  AS I
 
13  TESTIFIED IN THE DEPOSITION HERE THAT YOU CITED, HE ADVANCED
 
14  ALL OF THE MONEY NECESSARY TO KEEP — FOR HIM TO DO THE WORK
 
15  HE DID, WHICH WAS CONSIDERABLE.
 
16            DO YOU WANT ME TO EXPLAIN IT TO YOU,
 
17  MR. BEUGELMANS?
 
18       Q    SIR, THE QUESTION IS — LET ME ASK THE QUESTION
 
19  THIS WAY.
 
20            MR. CARTO, YOU DON'T KNOW WHAT HIS EXPENSES WERE,
 
21  DO YOU?
 
22       A    TO THE PENNY, OF COURSE NOT.
 
23       Q    YOU NEVER SAW AN ACCOUNTING OF THE ALLEGED
 
24  EXPENSES, DID YOU?
 
25       A    NO.
 
26       Q    HIS EXPENSES WERE REIMBURSED FROM FUNDS THAT CAME
 
27  FROM THE FARREL RECOVERY, CORRECT?
 
28       A    CORRECT.
			
			

page 583
 
 
 
 1       Q    NOW OVER AND ABOVE HIS ALLEGED EXPENSES, HOW MUCH
 
 2  DID MR. FISCHER RECEIVE FROM THE MONIES THAT WERE PUT IN
 
 3  EITHER THE VIBET ACCOUNTS OR THE INTERNATIONAL LEGION
 
 4  ACCOUNTS OR ANY OTHER ACCOUNTS THAT CAME FROM THE FARREL
 
 5  SETTLEMENT?
 
 6       MR. WAIER:  OBJECTION.  ASSUMES FACTS.  THERE’s NO
 
 7  TESTIMONY THAT ANY MONEY WENT IN THE INTERNATIONAL LEGION.
 
 8       THE COURT:  OVERRULED.
 
 9       THE WITNESS:  HE WAS — AFTER REIMBURSEMENT FOR HIS
 
10  EXPENSES — MIND YOU THIS WAS FROM 1985 AFTER MISS FARREL
 
11  DIED THROUGH 1970 (SIC) HE LITERALLY TRAVELED AROUND THE
 
12  WORLD TALKING TO THE BANKS AND THE — AND THE LAWYERS, ETC.
 
13  HE WAS THE ONE RESPONSIBLE FOR PUTTING ME INTO TOUCH WITH
 
14  ALL OF THE ATTORNEYS THAT WE USED.
 
15       MR. BEUGELMANS:  YOUR HONOR, MAY I INTERRUPT AND MOVE
 
16  TO STRIKE AS NONRESPONSIVE?
 
17       THE COURT:  SUSTAINED.
 
18       THE WITNESS:  WHAT IS THE QUESTION AGAIN, PLEASE?
 
19       MR. BEUGELMANS:  WOULD YOU READ THE QUESTION BACK?
 
20                     (THE RECORD WAS READ.)
 
21       THE WITNESS:  HE WAS PAID SOMEWHERE IN THE
 
22  NEIGHBORHOOD, I WOULD SAY, PROBABLY ABOUT $200,000 FOR THE 7
 
23  YEARS THAT HE WORKED ON THIS WITH NO EXPECTATION OF REALLY
 
24  OF GETTING ANYTHING OUTSIDE OF IT IN ADDITION TO HIS
 
25  EXPENSES.  BUT I CAN'T SAY THE FIGURE EXACTLY.  IT COULD BE,
 
26  I WOULD SAY, IT’s AROUND 200,000, MAYBE 300.
 
27
 
28
			
			

page 584
 
 
 
 1  BY MR. BEUGELMANS:
 
 2       Q    MR. FISCHER NEVER PRESENTED YOU WITH ANY TIME
 
 3  SHEETS, DID HE?
 
 4       A    FOR THE THIRD TIME, SIR, NO.
 
 5       MR. BEUGELMANS:  THANK YOU, SIR.
 
 6       THE WITNESS:  I KNOW HIS EXPENSES.
 
 7
 
 8  BY MR. BEUGELMANS:
 
 9       Q    THE QUESTION WAS TIME SHEETS FOR THE TIME HE
 
10  SPENT?
 
11       A    CERTAINLY NOT.
 
12       MR. BEUGELMANS: NO FURTHER QUESTIONS.
 
13       THE COURT:  ANY CROSS-EXAMINATION?
 
14       MR. WAIER:  WE WERE GOING TO RESERVE OUR
 
15  CROSS-EXAMINATION.
 
16       THE COURT:  FINE.  THANK YOU FOR YOUR TESTIMONY.
 
17  REMEMBER THE STEP.
 
18            DOES THE PLAINTIFF HAVE ANY OTHER EVIDENCE OR
 
19  WITNESSES?
 
20       MR. BEUGELMANS:  NO.
 
21       THE COURT:  WHAT ABOUT THE ITEMS OF EVIDENCE?  HAVE YOU
 
22  BEEN ABLE TO RESOLVE THAT:  WHAT COMES IN; WHAT DOES NOT?
 
23       MR. BEUGELMANS:  WE'RE READY TO MEET WITH MR. WAIER AND
 
24  LANE.  WE HAVE GONE THROUGH IT ALL.
 
25       THE COURT:  YOU HAVE GONE THROUGH IT BUT NOT CONSULTED
 
26  WITH THEM?
 
27       MR. BEUGELMANS:  HAVEN'T HAD A CHANCE.
 
28       THE COURT:  I'LL LET YOU REST SUBJECT TO THE ADMISSION
			
			

page 585
 
 
 
 1  OF EVIDENCE LATER ON IN THE TRIAL.  LET’s PROCEED TO ANY
 
 2  EVIDENCE THE DEFENSE WANTS TO PUT ON.
 
 3       MR. WAIER:  YOUR HONOR, AT THIS JUNCTURE WE WOULD
 
 4  REQUEST, AND I UNDERSTAND THE COURT’s PREELECTION TO ALLOW
 
 5  ALL THE EVIDENCE IN BEFORE IT DECIDES OUR MOTION FOR CODE OF
 
 6  CIVIL PROCEDURE SECTION 631.8.  I WOULD LIKE TO ARGUE IT.
 
 7            THE REASON WE HAVEN'T PROVIDED THE COMPLETED
 
 8  VERSION WAS BECAUSE OF THE — WE DON'T KNOW WHAT EVIDENCE IN
 
 9  THE FORM OF DOCUMENTS ARE GOING TO COME IN.  YOU RESERVED
 
10  THAT RIGHT UNTIL THE CONCLUSION OF THE PLAINTIFFS' CASE TO
 
11  DETERMINE WHAT DOCUMENTS WERE TO COME IN, WHETHER THEY LAID
 
12  FOUNDATION FOR IT.
 
13            IT IS CRITICAL AT THIS JUNCTURE WE ARE ENTITLED
 
14  UNDER THE CODE TO PRESENT THAT MOTION AT THIS POINT BASED ON
 
15  THE EVIDENCE THAT’s BEEN ADDUCED.
 
16       THE COURT:  WELL, IN THAT CASE, I WOULD LET YOU DO
 
17  THIS.  YOU TWO CAN TALK.  THOSE ITEMS YOU AGREE WILL COME
 
18  INTO EVIDENCE.  THOSE WILL COME IN.  THOSE ITEMS YOU HAVE A
 
19  DISAGREEMENT ABOUT I WILL RULE ON, AND THEN WE'LL PROCEED ON
 
20  WITH ANY MOTION ITSELF THAT YOU WANT TO BRING.
 
21            DO YOU WANT ME TO GO OFF THE RECORD?
 
22       MR. WAIER:  SURE.  THEN I CAN FILL IN NUMBERS ON MY
 
23  TAGS.
 
24       MR. BEUGELMANS:  A POINT OF HOUSEKEEPING.  WE HAVEN'T
 
25  BEEN SERVED WITH A MOTION.  HAS ONE BEEN FILED WITH THE
 
26  COURT?
 
27       MR. WAIER:  NOTHING HAS BEEN FILED.  I'M WAITING TO
 
28  FIND OUT WHICH EXHIBITS WILL GO IN.  I DON'T WANT TO BRING
			
			

page 586
 
 
 
 1  EVIDENCE TO THE COURT THAT DOESN'T COME INTO EVIDENCE.
 
 2       THE COURT:  OKAY.  GO OFF THE RECORD THEN.
 
 3
 
 4                   (PROCEEDINGS RECESSED.)
 
 5
 
 6       THE COURT:  ON THE RECORD.  THE PARTIES HAVE TRIED TO
 
 7  RESOLVE THE ISSUE TO WHAT COMES INTO EVIDENCE AND WHAT DOES
 
 8  NOT.  I HAVE A STACK OF EXHIBITS THAT ARE COMING INTO
 
 9  EVIDENCE.  THE WAY I HAVE DONE THIS BEFORE IS TO HAVE ONE OF
 
10  THE PARTIES READ THEM OR I'LL READ THEM.
 
11       MR. MUSSELMAN:  I WILL READ THEM.  IT INCLUDES — THE
 
12  BLUE BINDER INCLUDES SOME THAT ARE OBJECTED TO AND SOME THAT
 
13  AREN'T.  WE DIDN'T PULL THEM OUT.  I'LL RUN THROUGH THEM.
 
14  THE DEFENDANTS CAN TELL ME.
 
15            THERE’s NO OBJECTION TO THE INTRODUCTION OF
 
16  EXHIBITS 1 AND 2.
 
17            DEFENDANTS ARE OBJECTING TO EXHIBIT 3.
 
18            THERE’s NO OBJECTION TO THE INTRODUCTION OF 4
 
19  THROUGH 11.
 
20            THE PARTIES ARE GOING TO STIPULATE THAT EXHIBIT 8
 
21  IS THE ENGLISH TRANSLATION OF EXHIBIT 7.
 
22            DEFENDANTS ARE OBJECTING TO THE INTRODUCTION OF
 
23  EXHIBIT 13.
 
24            NO ONE IS MOVING FOR THE INTRODUCTION OF 12.  NO
 
25  ONE IS MOVING FOR THE INTRODUCTION OF 14.
 
26            15 AND 16 ARE DUPLICATES OF ANOTHER.  NO ONE IS
 
27  MOVING FOR THEIR INTRODUCTION.
 
28            NO ONE IS MOVING FOR THE INTRODUCTION OF EXHIBITS
			
			

page 587
 
 
 
 1  18 AND 19, WHICH MAY BE DUPLICATES AS WELL.
 
 2            DEFENDANTS ARE OBJECTING TO THE INTRODUCTION OF
 
 3  EXHIBIT 20.
 
 4            NO OBJECTION TO THE INTRODUCTION OF EXHIBIT 21.
 
 5            NO ONE IS MOVING FOR THE INTRODUCTION OF EXHIBIT
 
 6  22.
 
 7            DEFENDANT IS OBJECTING TO THE INTRODUCTION OF
 
 8  EXHIBIT 23.
 
 9            NO ONE IS MOVING FOR THE INTRODUCTION OF EXHIBIT
 
10  24.
 
11            DEFENDANTS ARE MOVING FOR THE INTRODUCTION OF
 
12  EXHIBIT 25 AND PLAINTIFFS ARE OBJECTING.
 
13       MR. LANE:  25, I DON'T THINK SO.
 
14       MR. MUSSELMAN:  YOU DON'T THINK YOU ARE OBJECTING?
 
15            NO ONE IS MOVING FOR THE INTRODUCTION OF EXHIBIT
 
16  26.
 
17       MR. LANE:  YOU DIDN'T SAY THAT.  YOU ARE OBJECTING TO
 
18  25.
 
19       MR. MUSSELMAN:  I STATED PLAINTIFF IS OBJECTING TO THE
 
20  INTRODUCTION OF EXHIBIT 25.
 
21            NO ONE IS MOVING FOR THE INTRODUCTION OF EXHIBIT
 
22  26.
 
23            NO OBJECTION TO THE INTRODUCTION OF EXHIBIT 27.
 
24            DEFENDANTS ARE OBJECTING TO THE INTRODUCTION OF
 
25  EXHIBIT 28, 29, I THINK, 30 AND 31.  IS THAT CORRECT?  YOU
 
26  ARE OBJECTING TO THOSE ALSO?
 
27       MR. WAIER:  WHICH ONE?
 
28       MR. LANE:  29, 30 AND 31.  THAT’s CORRECT.  WE'RE
			
			

page 588
 
 
 
 1  OBJECTING.
 
 2       MR. MUSSELMAN:  NO ONE MOVING PRESENTLY FOR THE
 
 3  INTRODUCTION OF EXHIBITS 32, 33 OR 34.
 
 4            THERE’s NO OBJECTION TO THE INTRODUCTION OF
 
 5  EXHIBITS 35 AND 36.
 
 6            DEFENDANTS ARE OBJECTING TO INTRODUCTION OF
 
 7  EXHIBIT 37, ALSO TO 38, ALSO TO 39, AND ALSO TO 40.
 
 8            THERE’s NO OBJECTION TO THE INTRODUCTION OF
 
 9  EXHIBIT 41.
 
10            DEFENDANTS ARE OBJECTING TO THE INTRODUCTION OF
 
11  EXHIBIT 42.
 
12            NO ONE IS MOVING FOR THE INTRODUCTION OF 43.
 
13            THERE’s NO OBJECTION TO THE INTRODUCTION OF
 
14  EXHIBITS 44, 45, 46.
 
15            NO ONE IS MOVING FOR THE INTRODUCTION OF EXHIBIT
 
16  47.
 
17            DEFENDANTS ARE OBJECTING TO THE INTRODUCTION OF
 
18  48.
 
19            NO ONE IS OBJECTING TO 49.
 
20            NO ONE IS MOVING FOR INTRODUCTION OF EXHIBIT 50.
 
21            NO ONE IS OBJECTING TO 51.
 
22            DEFENDANT IS OBJECTING TO 52, 53, 54, 55, 56, 57,
 
23  58, 59, AND 60.
 
24            NO ONE IS MOVING FOR THE INTRODUCTION OF
 
25  EXHIBIT 61 OR 62.
 
26            DEFENDANT IS OBJECTING TO 63 AND 64.
 
27            NO ONE IS MOVING FOR 65 OR 66 OR 67.
 
28            DEFENDANTS ARE OBJECTING TO 68.
			
			

page 589
 
 
 
 1            NO ONE IS MOVING FOR 69.
 
 2            IT’s THE PLAINTIFFS' UNDERSTANDING THAT THE JUDGE
 
 3  TOOK JUDICIAL NOTICE OF 70, THE POLIS JUDGMENT.  IF THAT'S
 
 4  NOT THE CASE, WE MOVE FOR THE INTRODUCTION.  ASK FOR
 
 5  CLARIFICATION ON THAT.
 
 6            I THINK DEFENDANTS ARE MOVING FOR THE INTRODUCTION
 
 7  OF 71; IS THAT RIGHT?  IS THAT SOMETHING YOU WANTED?
 
 8       MR. WAIER:  WHICH ONE?  NO.
 
 9       MR. MUSSELMAN:  NO ONE IS MOVING FOR 71, 72 OR 73.
 
10            DEFENDANT IS OBJECTING TO 74 AND 75.
 
11            NO ONE IS MOVING FOR 76, 77, 78, 79, 80, 81, 82 OR
 
12  83.
 
13            DEFENDANTS HAVE OBJECTED TO 84.
 
14            NO ONE MOVED FOR 85, 86, 87 OR 88.
 
15            DEFENDANTS ARE OBJECTING TO 89.
 
16            NO ONE IS MOVING FOR ANY EXHIBIT NUMBER 90, 91, 92
 
17  OR 93, NOR 94 OR 95, WHICH ARE PROBABLY DUPLICATES.
 
18            NO ONE IS MOVING FOR 96, WHICH IS PROBABLY
 
19  DUPLICATE, NOR 97, NOR 98, NOR 99, NOR 100.
 
20            THERE WERE SOME OTHERS BETWEEN 174 AND 180 THAT
 
21  MAY BE LISTED AS EXHIBITS.  NO ONE IS MOVING FOR THE
 
22  INTRODUCTION OF THEM.
 
23            THE COURT:  174 AND WHAT?
 
24       MR. BEUGELMANS:  TO AND INCLUDING 180.
 
25       MR. LANE:  NO ONE IS MOVING FOR THEM.
 
26       MR. MUSSELMAN:  THERE ARE NO SUCH EXHIBITS.
 
27       MR. LANE:  DID WE SKIP 146?
 
28       MR. MUSSELMAN:  I THINK YOUR FIRST EXHIBIT IS 146.  NO
			
			

page 590
 
 
 
 1  OBJECTION.
 
 2       THE CLERK:  NO OBJECTION?
 
 3       MR. MUSSELMAN:  DEFENDANT IS MOVING FOR THE ADMISSION
 
 4  OF THAT EXHIBIT.  DEFENDANT IS MOVING FOR THE ADMISSION OF
 
 5  162.
 
 6       THE CLERK:  147?  COUNSEL, I'M SORRY.
 
 7       MR. MUSSELMAN:  I THINK THERE ARE OTHER EXHIBITS THEY
 
 8  PUT ON THE EXHIBIT LIST THEY MAY USE LATER BUT HAVEN'T BEEN
 
 9  IDENTIFIED.
 
10       THE CLERK:  FROM 146?  YOU ARE GOING --
 
11       THE COURT:  WHY DON'T WE WAIT FOR THE DEFENSE UNTIL
 
12  THEY COMPLETE THEIR CASE.  THAT’s EASIER TO DO IT THAT WAY.
 
13  WE CAN STOP AT 180.
 
14       MR. MUSSELMAN:  A COUPLE OF MORE PLAINTIFFS' EXHIBITS
 
15  HIGHER THAN NUMBER 180, 181, AND 182.  THERE’s NO
 
16  OBJECTION.
 
17            183 IS THE NORTH CAROLINA FILINGS.  I BELIEVE THE
 
18  COURT TOOK JUDICIAL NOTICE OF THAT.  IF THAT WEREN'T THE
 
19  CASE, WE MOVE FOR THE INTRODUCTION OF THAT.
 
20            THAT’s IT FOR — I'M SORRY.  SO THE RECORD IS
 
21  CLEAR, THERE WERE SOME EXHIBITS DEALING WITH MR. KERR. NO
 
22  ONE IS MOVING NOW FOR THEIR INTRODUCTION OR THE PLAINTIFF IS
 
23  NOT MOVING FOR THE INTRODUCTION.  I THINK 187 THROUGH 193.
 
24            DEFENDANTS WILL PRESUMABLY BE MOVING LATER FOR
 
25  OTHER EXHIBITS BETWEEN THAT AND EXHIBIT 200, BUT EXHIBIT 200
 
26  HAS ALREADY BEEN ADMITTED, THE DECLARATION OF THE ATTORNEY
 
27  GENERAL.
 
28            EXHIBIT 201 WAS ALREADY NOT ADMITTED BY A COURT
			
			

page 591
 
 
 
 1  RULING.
 
 2            202 WAS A RELATED REMITTITUR, WHICH WAS WITHDRAWN
 
 3  BY THE PLAINTIFF.
 
 4       THE COURT:  WE PROBABLY HAVE A RECORD OF THAT ALREADY.
 
 5       MR. MUSSELMAN:  203 AND 204 ARE THE FURR DEPOSITION,
 
 6  WHICH HAVE BEEN ADMITTED.
 
 7       THE COURT:  I'LL TAKE A BRIEF BREAK AND BE BACK.
 
 8
 
 9            (COURT’s EXHIBITS NOS. 1-2, 4-11, 21, 27, 35-36,
 
10            41, 44-46, 49, 51, 180-182 RECEIVED IN EVIDENCE.)
 
11
 
12       MR. LANE:  YOUR HONOR, IF I CAN ADDRESS THE COURT.  WE
 
13  HAD AN AGREEMENT AS TO WHAT WE HAD AGREED TO, AND
 
14  MR. MUSSELMAN THEN READ AN AGREEMENT, WHICH VIOLATED OUR
 
15  AGREEMENT.  I WOULD LIKE TO SUPPLEMENT THIS.  I THINK
 
16  MR. BEUGELMANS WILL AGREE THIS WAS OUR AGREEMENT.
 
17            IN ADDITION TO WHAT — LET ME FINISH, PLEASE.  IN
 
18  ADDITION TO WHAT MR. MUSSELMAN READ TO THE COURT, WE AGREED,
 
19  AND I THINK THE CLERK HAS A STATEMENT, WHICH SAYS ALL
 
20  PARTIES AGREE TO ADMIT — THAT’s BECAUSE WE ALL AGREE --
 
21  172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182.
 
22
 
23            (COURT’s EXHIBITS NOS. 172-182 RECEIVED IN
 
24            EVIDENCE.)
 
25
 
26       MR. LANE:  THERE WAS A QUESTION ABOUT 183, WHICH I
 
27  THINK IS A JUDGMENT.  184.
 
28       THE COURT:  182 AND 183 YOU SAY THERE’s A PROBLEM
			
			

page 592
 
 
 
 1  WITH?
 
 2       MR. LANE:  I'M NOT SURE.  THERE’s A QUESTION WHETHER
 
 3  YOU HAD TAKEN JUDICIAL NOTICE OF IT.  I HAVE A QUESTION
 
 4  MARK.
 
 5       THE COURT:  ALL RIGHT.
 
 6       MR. LANE:  184 WE AGREED TO.  185, 186, 194, 195,
 
 7  196 --
 
 8       THE COURT:  I LOST YOU IN THE 90'S.
 
 9       MR. LANE:  194 THROUGH 199.
 
10       THE CLERK:  THERE’s NO OBJECTION TO THOSE?
 
11       MR. BEUGELMANS:  NO OBJECTION TO THOSE.
 
12       MR. LANE:  THANK YOU.
 
13
 
14            (COURT’s EXHIBITS NOS. 184-186, 194-199 RECEIVED
 
15            IN EVIDENCE.)
 
16
 
17       THE COURT:  LET ME GO BACK THEN AND TAKE CARE OF THE
 
18  EXHIBITS JUST IN ORDER.
 
19            HOW ABOUT THERE’s AN OBJECTION BY THE DEFENSE TO
 
20  NUMBER 3?  NUMBER 3 IS A COPY OF THE BYLAWS SUPPOSEDLY
 
21  SIGNED BY MISS FURR, DATED 16 JUNE 1966.
 
22            WHAT IS THE BASIS FOR THE OBJECTION?
 
23       MR. WAIER:  ACTUALLY, THREE BASES.  FIRST OF ALL, IT'S
 
24  NOT BEEN PROPERLY AUTHENTICATED.  IT HAS NOT BEEN
 
25  AUTHENTICATED AS A BUSINESS RECORD BY ANYONE.
 
26            THEN THE FOUNDATIONAL ASPECTS OF THE BUSINESS
 
27  RECORD HAVE BEEN LAID OUT.  THE MERE FACT THAT SOMEBODY
 
28  RECOGNIZES A SIGNATURE DOESN'T MAKE IT SO.  FOR PURPOSES OF
			
			

page 593
 
 
 
 1  THE CORPORATION, THERE IS NO TESTIMONY OR FOUNDATION THAT
 
 2  THESE CONSTITUTE THE PRESENT BYLAWS OR EVEN PAST BYLAWS OF
 
 3  THE LEGION.  THERE’s BEEN NO TESTIMONY TO THAT EFFECT,
 
 4  MERELY AN IDENTIFICATION OF SIGNATURES.  IDENTIFICATION WAS
 
 5  MERELY SOMEBODY RECOGNIZES SOMEBODY’s SIGNATURE.
 
 6       THE COURT:  I DON'T NEED EVERYTHING REPEATED TWICE.
 
 7  PLOW THE GROUND ONCE.  I CAN LISTEN TO ARGUMENT.
 
 8            MY NOTES INDICATE THAT MR. MARCELLUS SAW IT 1993.
 
 9  IT WAS NOT THE LEGION FILES.  HE HAD NO CONVERSATIONS WITH
 
10  CARTO ABOUT IT.
 
11            I THINK IT GOES TO THE WEIGHT YOU GIVE IT RATHER
 
12  THAN THE ADMISSIBILITY.
 
13       MR. BEUGELMANS:  YES. I ALSO SAY THAT MR. CARTO
 
14  TESTIFIED THAT IT WAS HIS SIGNATURE.  AND IN THE DEPOSITION
 
15  OF LAVONNE FURR SHE TESTIFIED THAT MR. CARTO DID PREPARE
 
16  EXHIBIT 3, AND SHE SIGNED IT.
 
17            AND UNDER 1237 OF THE EVIDENCE CODE A WRITING
 
18  PREVIOUSLY MADE BY A WITNESS IS HEARSAY — IS NOT HEARSAY.
 
19  IT’s ADMISSIBLE.
 
20       THE COURT:  I KNOW NOTHING IN THE LAW SAYS IT HAS TO BE
 
21  AUTHENTICATED.
 
22       MR. WAIER:  IT HAS TO BE PROPERLY AUTHENTICATED FOR
 
23  PURPOSES OF FOUNDATION.  AND I MIGHT ADD THAT MR. MARCELLUS
 
24  TESTIFIED — I HAVE NO NOTES SPECIFICALLY — HE DOESN'T EVEN
 
25  RECALL WHERE THE DOCUMENT CAME FROM.  SO IN AND OF ITSELF
 
26  THERE’s NO AUTHENTICATION OR RELEVANCY IN THAT REGARD WITH
 
27  RESPECT TO THE MINUTES.
 
28       THE COURT:  MY JOB IS TO MAKE DECISIONS, NOT
			
			

page 594
 
 
 
 1  NECESSARILY BE ALWAYS RIGHT.  I'M GOING TO MOVE THROUGH THIS
 
 2  PRETTY RAPIDLY.  IF I'M HEARING AN OBJECTION, IT WILL BE
 
 3  OVERRULED.  OVER YOUR OBJECTION 3 WILL COME IN.
 
 4
 
 5            (COURT’s EXHIBIT NO. 3 RECEIVED IN EVIDENCE.)
 
 6
 
 7       THE COURT:  HOW ABOUT 13?  13 IS A MARCH 4TH, 1986
 
 8  STATEMENT ABOUT AN ANNUAL MEETING.
 
 9       MR. WAIER:  WE OBJECT TO THIS.  THIS HAS NOT BEEN
 
10  PROPERLY AUTHENTICATED.  THERE’s NO SIGNATURE ON THERE.
 
11  IT’s NEVER BEEN TESTIFIED THAT A SIGNATURE WAS ON THERE.
 
12            YOU DON'T HAVE LAVONNE FURR TESTIFYING.  IT’s NOT
 
13  IN THE DEPOSITION.
 
14       THE COURT:  AGAIN, I THINK IT GOES TO WEIGHT.  I'M NOT
 
15  SO SURE HERE.  WHAT IS THE POSITION OF THE PLAINTIFF ON THIS
 
16  ONE?
 
17       MR. BEUGELMANS:  YOUR HONOR, THE PLAINTIFF WOULD
 
18  RESPECTFULLY CITE EVIDENCE CODE SECTION 662 — I'M SORRY 622
 
19  AND 623.  THE FACTS RECITED IN THE WRITTEN INSTRUMENT ARE
 
20  CONCLUSIVELY PRESUMED TO BE TRUE AS BETWEEN THE PARTIES
 
21  THERETO.
 
22            THIS IS MINUTES OF THE LEGION THAT WERE DELIVERED
 
23  IN DISCOVERY TO THE PLAINTIFFS IN THIS ACTION.  I BELIEVE
 
24  IT’s ALSO — STRIKE THAT.
 
25            YOUR HONOR, THERE’s BEEN A DEMAND MADE BY THE
 
26  PLAINTIFF UPON THE DEFENDANTS IN THIS ACTION TO PRODUCE
 
27  ORIGINAL DOCUMENTS THAT WERE PRODUCED IN DISCOVERY.  WE
 
28  DON'T HAVE THE ORIGINALS TODAY.  I WILL REPRESENT TO THE
			
			

page 595
 
 
 
 1  COURT THIS DOCUMENT WAS OBTAINED THROUGH DISCOVERY.  ALSO
 
 2  MR. WEBER TESTIFIED TO THAT FACT.
 
 3       THE COURT:  DID ANYONE --
 
 4       MR. WAIER:  I DON'T HAVE ANYBODY TESTIFYING TO THIS
 
 5  DOCUMENT.
 
 6       THE COURT:  I DON'T THINK SO.  OVER THE PLAINTIFF'S
 
 7  OBJECTION, I WON'T ADMIT THIS.
 
 8            LET ME GO TO NUMBER 20.
 
 9       THE CLERK:  WAS 13 RECEIVED?
 
10       THE COURT:  13 WAS NOT ADMITTED OVER THE PLAINTIFF'S
 
11  OBJECTION.
 
12            THIS IS ENTITLED DISTRIBUTION AGREEMENT.
 
13       MR. WAIER:  WHICH ONE?
 
14       THE COURT:  NUMBER 20 I HAVE AS BEING OBJECTED TO BY
 
15  THE DEFENSE.
 
16       MR. WAIER:  YES, BECAUSE IT’s NOT BEEN AUTHENTICATED.
 
17  IN FACT TO THE CONTRARY, THE SIGNATURE OF MR. CARTO HAS
 
18  NEVER BEEN IDENTIFIED.  IN FACT, IT EVEN SEEMS LIKE IT’s AN
 
19  ALTERED DOCUMENT.  EVEN MR. WEBER TESTIFIED THAT IT WASN'T
 
20  MR. Carto’s SIGNATURE.  MR. CARTO TESTIFIED TO IT.  THERE IS
 
21  NO AUTHENTICATION FOR THIS DOCUMENT IN ANY WAY, SHAPE OR
 
22  FORM.  IT LACKS FOUNDATION.
 
23       THE COURT:  THE DEPOSITION I'M READING OF MISS FURR
 
24  SAYS THAT SHE DOESN'T SAY IT’s NOT HIS SIGNATURE.  SHE SAYS
 
25  IT MAY BE HIS SIGNATURE.
 
26       MR. WAIER:  WHAT SHE TESTIFIED TO — I RECALL THIS
 
27  SPECIFICALLY.  I WAS THERE.  THAT THAT WAS PROVIDED TO HER
 
28  BEFORE IT WAS SIGNED AND SHE APPROVED IT.
			
			

page 596
 
 
 
 1       THE COURT:  WHAT IS THE POSITION OF THE PLAINTIFF?
 
 2       MR. BEUGELMANS:  YOUR HONOR, THE PLAINTIFF’s POSITION
 
 3  IS THAT IN TESTIMONY IN COURT MR. CARTO STATED THAT HE
 
 4  AUTHORIZED WHOEVER SIGNED TO SIGN ON HIS BEHALF.  HE DOESN'T
 
 5  KNOW WHO SIGNED, BUT IT WAS SIGNED ON HIS BEHALF.
 
 6            LAVONNE FURR STATED IN THE DEPOSITION SHE WAS
 
 7  PRESENTED A COPY OF THIS BY MR. CARTO WHO TOLD YOU IT HAD
 
 8  BEEN SIGNED ON HIS BEHALF.  AND I THINK, YOUR HONOR, THAT
 
 9  AGAIN THIS IS A STATEMENT, WHICH HAS BEEN — THE DEFENDANTS
 
10  HAVE MANIFESTED THEY HAVE ADOPTED THE STATEMENT BY THE
 
11  CONDUCT.  THEY COME TO COURT NOW AND SAY THIS IS NOT — THAT
 
12  THE CONTENTS OF THIS DOCUMENT ARE NOT TRUE AND CORRECT.  I
 
13  BELIEVE IT WOULD VIOLATE THE INTENT OF EVIDENCE CODE SECTION
 
14  1221.  IT’s BASICALLY BY CONDUCT THE PARTIES ESTOPPED FROM
 
15  DENYING THE TRUTH OF THE DOCUMENT.
 
16       THE COURT:  OVER THE DEFENSE OBJECTION, 20 WILL BE
 
17  ADMITTED.
 
18
 
19            (COURT’s EXHIBIT NO. 20 RECEIVED IN EVIDENCE.)
 
20
 
21       THE COURT:  GO TO 23.  23 IS A MARCH 1, 1988 --
 
22       MR. WAIER:  OBJECTION.  THIS ONE HAS NOT BEEN
 
23  AUTHENTICATED BY ANYONE.  IT’s NOT BEEN PROPERLY
 
24  AUTHENTICATED.  IT’s NOT A BUSINESS RECORD.  IT’s NEVER BEEN
 
25  IDENTIFIED AS A BUSINESS RECORD.
 
26            AND FURTHER GROUND, RELEVANCY.
 
27       THE COURT:  I WAS WONDERING ABOUT THE RELEVANCY OF IT.
 
28       MR. BEUGELMANS:  WELL, IT’s RELEVANT.  IT SHOWS THE
			
			

page 597
 
 
 
 1  MULTIPLE DIRECTORS AT THE TIME IN THE PAST BEFORE THE
 
 2  REPRESENTATIVES OF THE LEGION WHO CURRENTLY ARE CONTROL IN
 
 3  THE LEGION HAD SUCH CONTROL.
 
 4            I BELIEVE, YOUR HONOR, THAT AGAIN THIS IS A
 
 5  STATEMENT BY A PARTY, LAVONNE FURR.
 
 6       THE COURT:  THE ONLY RELEVANCY I CAN SEE IS A DIRECTOR
 
 7  LISTED AS MR. HARVEY TAYLOR.  HE’s OF COURSE TESTIFIED HE
 
 8  WASN'T A DIRECTOR IN 1988.
 
 9       MR. BEUGELMANS:  I BELIEVE IT IS RELEVANT.  IT SHOULD
 
10  COME IN.  AND MR. WEBER AGAIN TESTIFIED THAT IT WAS PRODUCED
 
11  TO THE PLAINTIFF DURING THE COURSE OF DISCOVERY IN THIS
 
12  ACTION.
 
13       MR. WAIER:  UNFORTUNATELY THAT DOES NOT AUTHENTICATE
 
14  ANYTHING WHETHER IT WAS PRODUCED THROUGH DISCOVERY.
 
15       THE COURT:  I'M GOING TO, OVER THE PLAINTIFF'S
 
16  OBJECTION, NOT ADMIT 23.
 
17            28 IS THE NEXT ONE.  THAT’s A MARCH 6, 1990
 
18  MEETING.
 
19       THE CLERK:  I ALSO SHOW 25.  I'M NOT SURE.
 
20       MR. BEUGELMANS:  25 HAS BEEN WITHDRAWN.
 
21       THE COURT:  WAIT A SECOND.
 
22       MR. WAIER:  WE'RE ON 25.
 
23       THE COURT:  WE HAVE TO KEEP ORGANIZED A BIT.  25 I HAVE
 
24  IN A GROUP THAT THE PLAINTIFF WANTED IN BUT THE — OR THE
 
25  DEFENSE WANTED IN BUT THE PLAINTIFF WAS OBJECTING.
 
26       MR. LANE:  IT HASN'T BEEN WITHDRAWN BY US.
 
27       THE COURT:  AM I WRONG?
 
28       MR. BEUGELMANS:  THAT’s CORRECT.  THE PLAINTIFF IS
			
			

page 598
 
 
 
 1  WITHDRAWING IT.  THE DEFENDANT IS NOT MOVING TO HAVE IT
 
 2  INTRODUCED, YOUR HONOR.
 
 3       THE COURT:  I'LL PUT IT IN THE WITHDRAWN CATEGORY.
 
 4  DOES THE DEFENSE WISH TO HAVE IT IN?
 
 5       MR. LANE:  YES.
 
 6       THE COURT:  LET ME COVER IT RIGHT NOW THEN.  WHAT IS
 
 7  THE REASON FOR KEEPING IT OUT?
 
 8       MR. BEUGELMANS:  YOUR HONOR, IT’s HEARSAY.  NO
 
 9  AUTHENTICATION.  NOT A CERTIFIED COPY, A DUPLICATE ORIGINAL.
 
10       THE COURT:  I HEARD THAT ARGUMENT BEFORE.  WHAT DOES
 
11  THE DEFENSE SAY?  WHY DO THEY WANT THIS IN FOR AND HAS IT
 
12  BEEN AUTHENTICATED?
 
13       MR. WAIER:  ARE YOU GOING TO GIVE HIM MORE WEIGHT THAN
 
14  YOU HAVE GIVEN MY ARGUMENT AND I WILL ARGUE IT.
 
15            THE PURPOSE OF THIS IS TO SHOW THAT THE LEGION
 
16  DIRECTORS MADE — EVEN MR. MARCELLUS TESTIFIED TO THIS
 
17  DOCUMENT THAT HE COULD HAVE VERY WELL BEEN AWARE OF THE
 
18  DIRECTORS AT THE POINT IN TIME IT WAS BEING FILED BY THE
 
19  STATEMENT AS A STATEMENT OF FOREIGN CORPORATION.  IT GOES TO
 
20  CONSTRUCTIVE NOTICE AMONG OTHER ISSUES.
 
21       THE COURT:  OVER THE PLAINTIFF’s OBJECTION, I WILL
 
22  ADMIT IT.
 
23
 
24            (COURT’s EXHIBIT NO. 25 RECEIVED IN EVIDENCE.)
 
25
 
26            THE COURT:  GO TO 28, THE NEXT ONE.
 
27       MR. WAIER:  FOR SOME REASON I DON'T HAVE 28.
 
28       THE COURT:  A MARCH 6, 1990 MEETING.
			
			

page 599
 
 
 
 1       MR. WAIER:  WE OBJECT TO THIS BECAUSE IT HAS NOT BEEN
 
 2  AUTHENTICATED.  THERE IS NO SIGNATURE ON THIS DOCUMENT, AND
 
 3  THIS DOESN'T GO TO A HEARSAY RULE, YOUR HONOR.  THERE’s NO
 
 4  SIGNATURE ON THIS DOCUMENT.  IT’s NOT BEEN AUTHENTICATED.
 
 5  THERE’s NO FOUNDATION FOR THE DOCUMENT, AND IT’s NOT BEEN
 
 6  AUTHENTICATED BY ANYBODY.
 
 7       THE COURT:  MR. MARCELLUS TALKED ABOUT THIS ONE.  HE
 
 8  SAW IT.
 
 9       MR. WAIER:  MR. MARCELLUS SAID HE SAW THIS DOCUMENT
 
10  SOMETIME IN 1994, BUT THAT DOESN'T AUTHENTICATE A DOCUMENT.
 
11  I COULD GIVE HIM A PIECE OF FLY PAPER AND SAY, HERE.  THAT
 
12  DOESN'T NECESSARILY MEAN I MANUFACTURE THAT FLY PAPER; THAT
 
13  I'M THE PATENTEE OF THE FLY PAPER.  THAT DOESN'T MEAN
 
14  ANYTHING THAT HE SAW IT.  YOU STILL HAVE TO AUTHENTICATE
 
15  IT.  YOU CAN'T BY JUST SAYING I SEEN THE DOCUMENT.
 
16       THE COURT:  WHAT IS THE POSITION OF THE PLAINTIFF ON
 
17  THIS ONE?
 
18       MR. BEUGELMANS:  WELL, AGAIN, THIS IS A DOCUMENT THAT
 
19  WAS PRODUCED BY THE DEFENDANTS DURING THE COURSE OF
 
20  DISCOVERY IN THIS ACTION.  I WOULD BE MORE THAN HAPPY TO
 
21  TAKE THE STAND AND TESTIFY TO THAT MYSELF.  WE HAD NO ACCESS
 
22  TO THE DOCUMENTS OTHER THAN THROUGH DISCOVERY.
 
23            MR. MARCELLUS — MR. WEBER TESTIFIED THAT THE TIME
 
24  SEPTEMBER 1993 WHEN THEY TOOK OVER AS DIRECTORS THERE ARE
 
25  ONE OR TWO MINUTES IN THEIR POSSESSION.
 
26            IN TERMS OF AUTHENTICATION, THE 1500 SECTIONS OF
 
27  THE EVIDENCE CODE TALK ABOUT AUTHENTICATION COPIES ARE NOT
 
28  PROCURABLE BY A PARTY ATTEMPTING TO ADMIT THEM.  COPIES OF
			
			

page 600
 
 
 
 1  WRITINGS THAT ARE PROPERLY IN THE POSSESSION OF THE ADVERSE
 
 2  PARTY WHO HAD NOTICE.  THEY BROUGHT THE ORIGINALS TO TRY.
 
 3  WE DON'T HAVE THE ORIGINALS.  WE ONLY HAVE THE DOCUMENT
 
 4  OBTAINED DURING DISCOVERY.
 
 5       THE COURT:  OVER THE PLAINTIFF’s OBJECTION, I WON'T
 
 6  ADMIT 29.
 
 7            HOW ABOUT 30?
 
 8       MR. LANE:  I THINK IT WAS 28.
 
 9       THE COURT:  I'M SORRY.  28.
 
10            29 IS THE SETTLEMENT AGREEMENT.
 
11       MR. WAIER:  THE SAME INFIRMITIES WITH THIS AGREEMENT.
 
12  I DON'T BELIEVE THIS AGREEMENT WAS EVEN TESTIFIED TO LET
 
13  ALONE BEEN AUTHENTICATED.  AND IN FACT, TO THE CONTRARY IT
 
14  WAS AGAIN POINTED OUT THAT THIS IS NOT EVEN MR. Carto’s
 
15  SIGNATURE ON HERE.  IT SEEMS TO BE AN ALTERED DOCUMENT.
 
16  THERE’s NO AUTHENTICATION FOR IT.  NO FOUNDATION FOR THE
 
17  DOCUMENT.  IT HAS TO BE MORE THAN THAT.  IT DOESN'T GO TO
 
18  HEARSAY.  IT GOES TO THE ACTUAL AGREEMENT.  IT’s NOT A
 
19  HEARSAY QUESTION.
 
20       THE COURT:  THE POSITION OF THE PLAINTIFF ON THIS ONE
 
21  IS WHAT?
 
22       MR. BEUGELMANS:  YOUR HONOR, MR. CARTO AUTHENTICATED.
 
23  HE RECOGNIZED THIS DOCUMENT.
 
24       THE COURT:  OVER THE DEFENSE OBJECTION, I WILL ADMIT
 
25  29.
 
26
 
27            (COURT’s EXHIBIT NO. 29 RECEIVED IN EVIDENCE.)
 
28
			
			

page 601
 
 
 
 1       THE COURT:  NUMBER 30 IS THE MANDATE AGREEMENT.  IF THE
 
 2  ARGUMENTS ARE THE SAME.
 
 3       MR. WAIER:  I DON'T THINK ANYBODY HAS BEEN SHOWN THIS
 
 4  DOCUMENT.
 
 5       THE COURT:  WHAT IS THE POSITION OF THE PLAINTIFF?
 
 6       MR. BEUGELMANS:  YOUR HONOR, I DON'T BELIEVE ANYBODY
 
 7  TESTIFIED TO THIS.
 
 8       THE COURT:  VERY WELL.  I THINK I WILL NOT ADMIT IT AT
 
 9  THIS TIME OVER THE PLAINTIFF’s OBJECTION.
 
10            31.
 
11       MR. BEUGELMANS:  THIS WAS TESTIFIED TO BY MR. CARTO.
 
12       THE COURT:  I BELIEVE IT WAS.  OVER THE DEFENSE
 
13  OBJECTION, I'LL ADMIT 31.
 
14
 
15            (COURT’s EXHIBIT NO. 31 RECEIVED IN EVIDENCE.)
 
16
 
17       THE COURT:  37.
 
18       MR. BEUGELMANS:  NUMBER 37 WAS AUTHENTICATED BY LAVONNE
 
19  FURR IN THE DEPOSITION, EXHIBIT J. TO THE DEPOSITION.
 
20       MR. WAIER:  WE WILL WITHDRAW OUR OBJECTION.
 
21       THE COURT:  OKAY.  37 WILL GO IN THE NO OBJECTION
 
22  COLUMN.
 
23
 
24            (COURT’s EXHIBIT NO. 37 RECEIVED IN EVIDENCE.)
 
25
 
26       THE COURT:  HOW ABOUT 38?
 
27       MR. BEUGELMANS:  MR. CARTO TESTIFIED THAT HE RECOGNIZED
 
28  THIS DOCUMENT AS HAVING BEEN A DOCUMENT THAT WAS SENT TO
			
			

page 602
 
 
 
 1  HIM.
 
 2       MR. WAIER:  THAT STILL DOESN'T GET AROUND THE
 
 3  INFIRMITIES OF THE HEARSAY RULE.  IT HASN'T BEEN LAID AS A
 
 4  BUSINESS RECORD.  THERE’s NO EXCEPTION TO THIS AND NO
 
 5  FOUNDATION WAS LAID FOR AN EXCEPTION WITH RESPECT TO THIS
 
 6  DOCUMENT.
 
 7       THE COURT:  OBJECTION WILL BE OVERRULED ON THE DEFENSE
 
 8  ON 38.
 
 9
 
10            (COURT’s EXHIBIT NO. 38 RECEIVED IN EVIDENCE.)
 
11
 
12       THE COURT:  39.
 
13       MR. WAIER: THE SAME, YOUR HONOR.  MY SAME OBJECTIONS,
 
14  YOUR HONOR.  THERE’s BEEN NO AUTHENTICATION FOR THIS.
 
15  AGAIN, IT CONTAINS HEARSAY WITH NO EXCEPTION.
 
16       THE COURT:  39 WILL BE ADMITTED OVER DEFENSE
 
17  OBJECTION.
 
18
 
19            (COURT’s EXHIBIT NO. 39 RECEIVED IN EVIDENCE.)
 
20
 
21       THE COURT:  40.
 
22       MR. BEUGELMANS:  I BELIEVE THE SAME THING.  A DOCUMENT
 
23  THAT MR. CARTO RECOGNIZED AS HAVING BEEN RECEIVED.
 
24       MR. WAIER:  I DON'T BELIEVE THAT HE TESTIFIED TO THAT,
 
25  YOUR HONOR.  I DON'T BELIEVE THAT WAS TESTIFIED TO AT ALL.
 
26       MR. BEUGELMANS:  ACTUALLY, I BELIEVE THAT’s A
 
27  MISSTATEMENT.  I DON'T BELIEVE WE WENT OVER THIS EXHIBIT.
 
28       THE COURT:  I DON'T THINK YOU DID EITHER.  I CAN'T FIND
			
			

page 603
 
 
 
 1  IT LISTED AS ONE OF THE ONES THAT WAS TALKED ABOUT.
 
 2       MR. BEUGELMANS:  PLAINTIFF WILL WITHDRAW.
 
 3       THE COURT:  PUT THAT IN THE WITHDRAWN CATEGORY AT THIS
 
 4  TIME.
 
 5            42.
 
 6       THE CLERK:  42 I SHOW RECEIVED.
 
 7       THE COURT:  I HAVE THAT THE DEFENSE IS OBJECTING TO
 
 8  42.
 
 9       MR. BEUGELMANS:  THIS ALSO IS AN EXHIBIT TO LAVONNE
 
10  FURR’s DEPOSITION AND ALSO LEWIS FURR’s DEPOSITION.
 
11       MR. WAIER:  THAT DOESN'T GET IT IN.  THIS IS FROM LEWIS
 
12  FURR, YOUR HONOR, AND I WOULD LIKE TO — LEWIS FURR'S
 
13  DEPOSITION I DO NOT BELIEVE WAS LODGED WITH THIS COURT.  I
 
14  THOUGHT LAVONNE FURR'S.
 
15       THE COURT:  BOTH WERE.
 
16       MR. WAIER:  THEN I STAND CORRECTED.  I WOULD LIKE TO --
 
17  I WAS UNDER THE MISUNDERSTANDING.
 
18       MR. BEUGELMANS:  THIS IS THE LAST EXHIBIT TO THE
 
19  DEPOSITION.  HE RECOGNIZED IT AND SAID THAT’s HIS SIGNATURE
 
20  TO IT.
 
21       THE COURT:  ONE AT A TIME.
 
22       MR. WAIER:  I WILL NOT TAKE THAT REPRESENTATION AT FACE
 
23  VALUE.  LET ME TAKE A LOOK.  LET ME SEE WHAT AUTHENTICATION
 
24  THERE WAS.  IT WILL TAKE ME TWO SECONDS OR LONGER THAN TWO
 
25  SECONDS.
 
26       MR. BEUGELMANS:  EXHIBIT “B” TO MR. LEWIS FURR'S
 
27  DEPOSITION.
 
28       MR. WAIER:  NO OBJECTION TO IT.
			
			

page 604
 
 
 
 1       THE COURT:  42 COMES IN WITHOUT OBJECTION.
 
 2
 
 3            (COURT’s EXHIBIT NO. 42 RECEIVED IN EVIDENCE.)
 
 4
 
 5       THE COURT:  NUMBER 48.
 
 6       MR. BEUGELMANS:  48 IS EXHIBIT “L” TO THE DEPOSITION OF
 
 7  LAVONNE FURR.  SHE AUTHENTICATED IT AND RECOGNIZED HER
 
 8  SIGNATURE.
 
 9       MR. WAIER:  WHICH ONE?  48?  AGAIN, YOUR HONOR, WHICH
 
10  EXHIBIT IS THAT?  IN LAVONNE FURR’s SAME EXHIBIT?  YOUR
 
11  HONOR, I'M OBJECTING AS TO RELEVANCY.
 
12       THE COURT:  I'M GOING TO OVERRULE IT.  ONE OF THE
 
13  REASONS I THINK IT’s RELEVANT IS MR. HARVEY TAYLOR’s NAME
 
14  DOWN HERE, AND MR. TOM KERR’s NAME, AND THE FACT THIS ONE
 
15  SAYS THEY'RE ALL WITH — THEY'RE PRESENT.  MR. KERR WAS
 
16  PRESENT.  MR. KERR’s TESTIMONY WAS HE WAS NOT PRESENT.  OVER
 
17  OBJECTION, 48 WILL BE ADMITTED.
 
18
 
19            (COURT’s EXHIBIT NO. 48 RECEIVED IN EVIDENCE.)
 
20
 
21       THE COURT:  52.  THESE ARE — THIS IS A MEMO BY
 
22  MR. MARCELLUS, WHICH IS HIS OPINION MEMORIALIZING SOME
 
23  CONVERSATIONS THAT HE HAD.
 
24       MR. BEUGELMANS:  PAST RECOLLECTION, YOUR HONOR.
 
25       MR. WAIER:  OBJECTION.  MY OBJECTION IS THAT HIS
 
26  RECOLLECTION DIDN'T NEED TO BE REFRESHED.  HE TESTIFIED TO
 
27  WHAT HE DID.  IT CONTAINS MULTIPLE HEARSAY, SELF-SERVING AND
 
28  IMPROPER OPINION.
			
			

page 605
 
 
 
 1       THE COURT:  IT’s PAST RECOLLECTION RECORDED.  I REALIZE
 
 2  THAT THAT DOESN'T NECESSARILY BRING IT IN.  IT’s ONLY IF A
 
 3  PERSON HAS NO PRESENT RECOLLECTION OF SOMETHING DO YOU BRING
 
 4  IN THIS SORT OF A THING.  HE CAN USE IT, OF COURSE, AND HE
 
 5  DID USE IT TO REFRESH HIS RECOLLECTION; BUT NORMALLY THE
 
 6  PARTY THAT IS PROPOUNDING THE EVIDENCE DOESN'T GET A PAST
 
 7  RECOLLECTION — I MEAN, A REFRESHING THE RECOLLECTION.  IF
 
 8  THE DEFENSE WANTS IT IN, THEY GET IT.  I THINK IF THE
 
 9  PLAINTIFF WANTS IT IN, I DON'T THINK THEY DO.
 
10       MR. BEUGELMANS:  PLAINTIFF SUBMITS.
 
11       THE COURT:  I WON'T ADMIT.  I WILL NOT ADMIT 52.
 
12            53 IS PROBABLY — THAT’s THE, I THINK, THE SAME
 
13  TYPE OF THING.  SAME RULING.  NOT IN.  54, I THINK THAT'S
 
14  THE SAME RULING.  55, SAME RULING.  56, SAME RULING.
 
15            57 IS A — WHAT IS THE OBJECTION BY THE DEFENSE TO
 
16  57?
 
17       MR. WAIER:  THERE’s BEEN NO AUTHENTICATION WITH RESPECT
 
18  TO THIS DOCUMENT.  IN FACT, THERE’s NO AUTHENTICATION TO
 
19  THIS DOCUMENT WHATSOEVER.
 
20       MR. BEUGELMANS:  MR. MARCELLUS TESTIFIED HE FOUND THIS
 
21  IN THE RECORD.  IT’s A BUSINESS RECORD OF THE LEGION.
 
22       MR. WAIER:  THAT DOESN'T GET YOU OVER THE BUSINESS
 
23  RECORD EXCEPTION.  THERE’s MORE FOUNDATION THAN THAT TO
 
24  BRING A BUSINESS IN THAN JUST STATING HE SEEN IT IN SOME
 
25  FILES.  THAT DOESN'T GET YOU THERE.  HE HAS TO TALK ABOUT
 
26  THE MODE OF PREPARATION.  HE HAS TO TALK ABOUT THE
 
27  CIRCUMSTANCES.
 
28       THE COURT:  CALM DOWN.
			
			

page 606
 
 
 
 1       MR. WAIER:  THERE’s BEEN NO FOUNDATION FOR THE
 
 2  DOCUMENT.
 
 3       MR. BEUGELMANS:  I THINK THE PLAINTIFF WOULD RELY ON
 
 4  EVIDENCE CODE SECTION 1502.  THIS IS A DOCUMENT NOT
 
 5  PROCURABLE BY THE PLAINTIFF.  I DON'T THINK THERE’s ANY
 
 6  QUESTION THAT THE PLAINTIFF WAS FORCED.  IT’s NOT AUTHENTIC
 
 7  OR A TRUE COPY OF THE DOCUMENT.
 
 8       MR. WAIER:  THAT’s WHY WE HAVE RULES OF EVIDENCE.  AND
 
 9  THEY DID NOT EVEN PROVIDE THIS COURT WITH THAT FOUNDATION.
 
10       THE COURT:  OVER THE PLAINTIFF’s OBJECTION, I WON'T
 
11  ADMIT THIS.  I WILL NOT.
 
12            58, NOT ADMITTED.
 
13            59.
 
14       MR. BEUGELMANS:  MR. MARCELLUS TESTIFIED HE RECEIVED
 
15  THESE FROM THE FURRS.
 
16       MR. WAIER:  MY OBJECTION IS RELEVANCY.
 
17       THE COURT:  OVERRULED.  ADMITTED OVER THE DEFENSE
 
18  OBJECTION.
 
19
 
20            (COURT’s EXHIBIT NO. 59 RECEIVED IN EVIDENCE.)
 
21
 
22       THE COURT:  NUMBER 60.  WHAT’s THE OBJECTION BY THE
 
23  DEFENSE?
 
24       MR. WAIER:  MY OBJECTION, YOUR HONOR, IS FIRST, I DON'T
 
25  BELIEVE THIS HAS BEEN AUTHENTICATED BY ANYONE, AND IT LACKS
 
26  FOUNDATION.
 
27       THE COURT:  ANYTHING ELSE BY THE PLAINTIFF?
 
28       MR. BEUGELMANS:  NO.
			
			

page 607
 
 
 
 1       THE COURT:  NOT ADMITTED THEN.
 
 2            63, MR. CARTO BEEN ASKED ABOUT THAT ONE.
 
 3       MR. BEUGELMANS:  NO.  WE WERE RESERVING THAT FOR
 
 4  REDIRECT OR CROSS-EXAMINATION.
 
 5       THE COURT:  SO RIGHT NOW IT SHOULD NOT BE ADMITTED?
 
 6       MR. BEUGELMANS:  CORRECT.  WE'LL RESERVE IT FOR A LATER
 
 7  TIME.
 
 8       THE COURT:  RIGHT NOW I'LL SHOW IT’s NOT ADMITTED.  YOU
 
 9  CAN MAKE A MOTION LATER ON.  I'M TALKING ABOUT 63.
 
10       MR. WAIER:  I'M SORRY.  OKAY.
 
11       THE COURT:  NUMBER 64.
 
12       MR. WAIER:  WHAT IS 64?
 
13       THE COURT:  A LETTER, DATED 1 OCTOBER 1993, SIGNED BY
 
14  MR. MARCELLUS, MR. RAVEN AND MR. WEBER AND MR. O’Keefe
 
15  TELLING MR. AND MRS. CARTO THAT THEIR CONTINUED RELATIONSHIP
 
16  IS NO LONGER REQUIRED IN THE LEGION’s AFFAIRS.
 
17       MR. WAIER:  TO THE EXTENT THAT YOU LIMIT IT TO RESTRICT
 
18  IT TO WHAT MR. MARCELLUS TESTIFIED TO AS TO HIS OWN — WHAT
 
19  HE GENERATED.  I DON'T BELIEVE YOU CAN TESTIFY AS TO
 
20  MR. RAVEN OR ANY OF THE OTHERS THAT ARE LISTED ON THAT OTHER
 
21  THAN MR. WEBER WHO I DID BELIEVE DID TESTIFY TO THE LETTER.
 
22       THE COURT:  OVER THE DEFENSE OBJECTION I WILL ADMIT
 
23  64.
 
24
 
25            (COURT’s EXHIBIT NO. 64 RECEIVED IN EVIDENCE.)
 
26
 
27       THE COURT:  68, I BELIEVE MR. MARCELLUS TESTIFIED THEY
 
28  GOT THIS OVER THE FAX MACHINE.  AM I RIGHT ON THAT?  YEAH,
			
			

page 608
 
 
 
 1  CAME THROUGH THE FAX MACHINE.
 
 2       MR. WAIER:  AGAIN, YOUR HONOR, THAT STILL DOESN'T
 
 3  AUTHENTICATE THE DOCUMENT.  WE'LL WITHDRAW THE OBJECTION.
 
 4       THE COURT:  OKAY.  I THOUGHT YOU PROBABLY WOULD.  68
 
 5  WILL COME IN WITHOUT OBJECTION.
 
 6
 
 7            (COURT’s EXHIBIT NO. 68 RECEIVED IN EVIDENCE.)
 
 8
 
 9       THE COURT:  74.
 
10       MR. WAIER:  YOUR HONOR, THERE’s — WHAT I SEE HERE,
 
11  THERE’s NO RELEVANCY.  IT CONTAINS HEARSAY, SELF-SERVING
 
12  STATEMENT, AND IT’s NOT SIGNED.  BUT MR. WEBER DID TESTIFY
 
13  TO IT, BUT THERE’s NO RELEVANCY IN MY OPINION TO THIS
 
14  LETTER.
 
15       THE COURT:  USUALLY I DON'T LET A WITNESS PUT THEIR
 
16  TESTIMONY IN A WRITTEN FORM AND THEN SUBMIT IT AS AN ITEM OF
 
17  EVIDENCE.  HE TESTIFIED THAT MANY OF THE THINGS IN HERE --
 
18  HE, MEANING MR. TAYLOR AND MR. WEBER.  MR. TAYLOR IS
 
19  MENTIONED TOO.  I DON'T THINK IT SHOULD PROBABLY COME IN.
 
20            ANY COMMENTS BY THE PLAINTIFF?
 
21       MR. BEUGELMANS:  YOUR HONOR, THE RELEVANCE OF THIS IS
 
22  NOT FOR THE TRUTH OF THE MATTER ASSERTED BUT FOR THE FACT
 
23  THAT NOTICE WAS GIVEN TO THE PARTY TO WHOM THE
 
24  CORRESPONDENCE WAS ADDRESSED.
 
25       MR. WAIER:  HE TESTIFIED TO THAT, YOUR HONOR.
 
26       THE COURT:  OVER THE DEFENSE OBJECTION — I MEAN,
 
27  PLAINTIFF’s OBJECTION, I WON'T ADMIT 74.
 
28            HOW ABOUT 75?
			
			

page 609
 
 
 
 1       MR. WAIER:  SAME OBJECTIONS.
 
 2       MR. BEUGELMANS:  SAME, YOUR HONOR.
 
 3       THE COURT:  SAME RULING, NOT ADMITTED OVER PLAINTIFF'S
 
 4  OBJECTION.  NUMBER 84.
 
 5       MR. WAIER:  YOUR HONOR, WE OBJECT TO THIS.  THIS IS A
 
 6  DOCUMENT THAT IS A LETTER FROM MY PARTNER.  THERE’s NO
 
 7  FOUNDATION FOR THE LETTER.  WHAT MR. BEUGELMANS MY
 
 8  UNDERSTANDING WANTS TO DO IS BRING IN ALL THE DOCUMENTS
 
 9  BECAUSE MY PARTNER PRODUCED THEM PURSUANT TO A DOCUMENT
 
10  REQUEST.  THAT DOESN'T LAY A FOUNDATION FOR ANY OF THE
 
11  DOCUMENTS.
 
12       THE COURT:  WHAT IS 84?  IT’s NOT IN MY BOOK.  HERE IT
 
13  IS.
 
14            I THINK HE’s RIGHT SO FAR.  ANY COMMENT WHY
 
15  THIS — ON THIS BY THE PLAINTIFF?
 
16       MR. BEUGELMANS:  YES.  FIRST OF ALL IN TOTO THIS IS AN
 
17  ADMISSION BY A PARTY THAT WAS PRODUCED IN DISCOVERY.
 
18            SECOND, A NUMBER OF THE DOCUMENTS WITHIN THIS WE
 
19  REFER TO IN THE EXAMINATION OF MR. CARTO, SPECIFICALLY
 
20  WITHIN — THERE’s PAGE 1, PAGE 2, PAGE 3, PAGE 4, 5, 6, 7,
 
21  8, 9, 10, 13, 14, 15, 16, 17, 18, 19, WHICH I ASKED
 
22  MR. CARTO IF THEY WERE TRUE COPIES OF THE ORIGINAL DOCUMENTS
 
23  IN THE POSSESSION OF LIBERTY LOBBY, WHICH HE AGREED THEY
 
24  WERE AND HAD SEEN THEM BEFORE.  THEN SKIP TO --
 
25       THE COURT:  HERE IS WHAT WE SHOULD DO WITH THIS
 
26  EXHIBIT.  IT’s — THIS EXHIBIT IS SUCH A BIG GENERAL
 
27  EXHIBIT.  SOME THINGS ARE ADMISSIBLE AND SOME ARE NOT.  SO I
 
28  THINK I'LL RESERVE ON 84, AND THOSE THINGS MR. CARTO
			
			

page 610
 
 
 
 1  TESTIFIED TO I THINK CAN BE ADMITTED.  THOSE THINGS IN THE
 
 2  PACKET THAT HE’s NOT TESTIFIED TO I DON'T THINK CAN BE.
 
 3       MR. WAIER:  AGAIN, I'M NOT PREPARED BECAUSE HE ASKED
 
 4  FOR THE ENTIRE DOCUMENT BASED ON --
 
 5       THE COURT:  I WOULD BE ADMITTING THE VARIOUS CHECKS
 
 6  THAT MR. Carto’s IDENTIFIED.  I HAVEN'T ADDED THEM UP.
 
 7  THERE ARE LOTS OF CHECKS AND AUTHENTICATED THEM.  IF YOU
 
 8  WANT TO PUT 84 ASIDE, WE'LL COVER THAT SOME OTHER TIME.
 
 9            I WANT TO GET THIS DONE BY 4:30 AND GET OUT OF
 
10  HERE AT 4:30 TODAY.
 
11            89, I DON'T HAVE THAT EXHIBIT IN MY BOOK.  WHAT IS
 
12  IT?
 
13       MR. BEUGELMANS:  MR. MARCELLUS’s AFFIDAVIT OF AUGUST
 
14  21, 1986.
 
15       MR. WAIER:  THE AFFIDAVIT THAT HE MADE.  I'M NOT SURE
 
16  WHAT CONNECTION HE MADE THAT AFFIDAVIT, BUT AGAIN, HE
 
17  TESTIFIED TO ITS CONTENT.  IT WOULD BE CUMULATIVE AT BEST
 
18  AND SELF-SERVING.
 
19       THE COURT:  I USUALLY WON'T ADMIT THAT.  ANY COMMENT BY
 
20  THE PLAINTIFF?
 
21       MR. BEUGELMANS:  NO.
 
22       THE COURT:  NOT ADMITTED THEN.  I THINK THAT TAKES CARE
 
23  OF IT.
 
24       MR. LANE:  I THINK THERE WAS A REFERENCE TO 200 THROUGH
 
25  204.  I DON'T KNOW WHAT THE STATUS IS.  THAT WE WEREN'T
 
26  SHOWN THE DOCUMENT.
 
27       THE COURT:  WHAT I DID IS I STOPPED COUNSEL AT THAT
 
28  TIME SAYING THOSE WERE YOUR EXHIBITS.  I WOULD WAIT UNTIL
			
			

page 611
 
 
 
 1  YOU FINISHED, AND WE WOULD GO THROUGH THE SAME PROCESS WITH
 
 2  YOUR EXHIBITS.
 
 3       MR. WAIER:  SO WE'RE CLEAR, THOUGH, EXHIBIT — I
 
 4  BELIEVE IT IS — MAYBE YOU HAVE IT.  YOU DIDN'T DISAGREE
 
 5  WITH IT.  I WANT TO MAKE SURE THE NUMBER IS IN THERE.  THAT
 
 6  IS EXHIBIT 146.  146 IS A DOCUMENT THAT MR. MARCELLUS
 
 7  TESTIFIED TO.
 
 8       MR. BEUGELMANS:  AGAIN, WHAT IS GOOD FOR THE GOOSE IS
 
 9  GOOD FOR THE GANDER.  IF THE OTHER LETTER DON'T COME IN,
 
10  THIS SHOULDN'T EITHER.
 
11       THE COURT:  I DON'T HAVE IN MY LIST 146 AT ALL.
 
12       MR. LANE:  WE DID AGREE:
 
13       MR. WAIER:  I CAN SHOW THIS.  IT’s THE SAME DOCUMENT I
 
14  RAISED ON THAT.
 
15       THE COURT:  WHO IS PROPOSING 146?
 
16       MR. BEUGELMANS:  NOT PLAINTIFF.
 
17       THE COURT:  THEN WAIT UNTIL YOUR CASE IS DONE.  WE'LL
 
18  DO ALL OF YOUR EXHIBITS AT ONE TIME.
 
19       MR. WAIER:  I DO KNOW THIS EXHIBIT WAS INTRODUCED TO
 
20  MR. MARCELLUS.  I DON'T KNOW IF IT’s 146 BUT VERY SIMILAR.
 
21       THE COURT:  I DON'T KNOW.  I'M GOING TO WAIT UNTIL YOU
 
22  HAVE CONCLUDED YOUR CASE BEFORE I GO THROUGH THE PROCEDURE
 
23  WITH YOUR EXHIBITS.
 
24            ANYTHING ELSE ON THE EXHIBITS THAT THE PLAINTIFF
 
25  WANTED IN?
 
26       MR. BEUGELMANS:  NO.
 
27       THE COURT:  THANK YOU.  OFF THE RECORD.
 
28                   (PROCEEDINGS RECESSED.)
			
			

Previous | Next