Drama unfolded Friday as another chapter in the ongoing George Guldi trial commenced before Judge James F.X. Doyle at the in Riverside.
The Westhampton Beach resident and former Suffolk County legislator is facing four charges including fraud, grand larceny, forgery and criminal possession of a forged instrument.
Highlights of the day included a decision by Doyle that Suffolk County Executive Steve Levy would not be required to testify.
As reported in Newsday, Levy was subpoenaed to testify in the Guldi case regarding an alleged “bribe,” in the form of campaign contributions that related to county work given to Ethan Ellner, a key witness.
A projection screen was set up.
The Guldi case was called and witness John Paul Osborn was called to the stand out of order. Osborn is a forensic document examiner based in Middlesex, New Jersey. His great grandfather worked on the missing Lindburgh baby case.
The jury was shown a projected image on a screen of an IBM Personal Wheelwriter typewriter and of the words “Countrywide Home Loans.” It was a display of what allegedly appeared as a typed endorsement on a check made out to both George Guldi and Countrywide Loans.
Assistant District Attorney Thalia Stavrides asked Osborn about the typeface.
Osborn said it is “probable” the typeface is Prestige Pica and he described seraphs on certain typefaces.
Osborn went on to say that when copies are made of a check, “certain distortions” occur. He discussed components of the IBM Personal Wheelwriter and described keys and a daisy wheel element, which is interchangeable and allows a user to purchase other typefaces.
Osborn said “defects” are necessary to identify if a particular machine typed a document.
Without the actual check or something to make a comparison, he said, “It is not possible to determine if the machine in the photo is capable of using the typeface.”
Stavrides asked if Osborn saw the original check, would he be able to possibly “go further?”
An objection was made and sustained.
Stavrides asked Osborn about a payment from the Suffolk County district attorney’s office.
He testified he has been paid $2,125 so far.
“Will you be paid for today?” Stavrides asked.
“I hope so,” Osborn answered.
The ADA said she had nothing further and a short break is taken.
The jury enters and is seated.
Guldi begins his cross-examination of Osborn and asks if his qualifications include photocopied documents.
“I believe it does,” Osborn said.
Guldi asks that a document be shown to Osborn, who identifies it as a reproduction of his professional resume. Guldi asks where it refers to photocopies.
“I don’t know that this portion of my qualifications does,” he said.
Guldi asks Osborn, if, as a forensic expert, it is possible to examine handwriting or photocopies and come to “certain” conclusions.
Osborn said the issue concerned the word “certain.” He said, “It’s not appropriate to render definite conclusions based on reproductions of handwriting.”
Guldi asked if Osborn had examined the handwriting on the document; Osborn said he had. Guldi then asked if he had compared the handwriting to the initials next to the Countrywide endorsement. Osborn said he had not.
Testimony ensued with a discussion of Osborn’s credentials and past experience.
Guldi said a critical issue was the point about defects on the original check. Because the document shown to Osborn was a copy, Guldi said, “You were unable to read defects because of the poor copy.”
Osborn said he could take that “one step further.”
“I was unable to identify defects because I was shown a copy,” he said.
Guldi asked if it was true that modern computer printers could generate any typeface that a Haas directory has.
Osborn said it is possible, but in the case of Prestige Pica, it “has not been done.” And with that, Osborn said he had come to the conclusion that it was “probable” that the typeface in question was Prestige Pica.
Testimony continued regarding how long it had been since Osborn used the Haas catalogue; he said it had been at least two years.
Guldi asked Osborn if the “handwriting on my signature goes one way” and discussed the initials by Countrywide’s endorsement.
Osborn said handwriting slant wasn’t the subject of his examination.
Osborn said, “The slant of writing is one question considered but doesn’t in any way eliminate the person. How easy would it be for someone to change the slant of their writing?”
Guldi asked Osborn how many IBM Personal Wheelwriters have been made and distributed in the United States.
Osborn responded that since 1988, it is estimated that several hundred thousand have been made and distributed in the United States.
Guild asked how many machines, made by IBM, used the Prestige Pica font.
Osborn said the Prestige Pica wheel fit more than just the IBM Personal Wheelwriter.
“How many did it fit?” Guldi asked.
“Many,” replied Osborn. “There were about a million of those Prestige Pica wheels around for different machines.”
“So you are saying any one of a million typewriters could have produced this?”
“Correct. You’ve got a one in a million,” he said.
Guldi asked if Osborn was aware that the district attorney’s office had searched Guldi’s law office.
“Not specifically, but I gleaned that. From the photograph, I made an assumption,” Osborn said.
“Would it matter to know that more than 20 file boxes” were removed from the office, but not the typewriter,” Guldi asked. “Would it matter to know that the search warrant allowed them to take the typewriter, but they didn’t?”
The assistant district attorney’s objection was sustained.
“Would it have been helpful if you had seen the actual typewriter?” Guldi asked.
“Yes,” replied Osborn.
Guldi then asked if he’d had the typewriter, would he have been able to read the ribbon for its history.
Osborn said yes, he would have been able to do so, if the ribbon was the same, with a recording of the history in question and had not been replaced.
Guldi asked if Osborn had the typewriter, could he have examined the wheel?
“Yes,” Osborn said.
Guldi asked if Osborn could have been able to discern how often the wheel and ribbon had been changed.
“No,” Osborn said.
Osborn said that if he had the typewriter and the original check, “it would have made it easier to reach conclusions.”
Guldi asked if it would have made it easier to know that requests had been made to AIG for the check as early as February of 2009 and again in March and June, but that the check was never requested until late June.
“Would it have affected your decision?” Guldi asked.
Stavrides’ objection was sustained.
Guldi asked if it would have affected Osborn’s judgment to have known all of this.
“My opinion is based on physical evidence,” Osborn said. “I would have liked to have seen the check. I would say there was a missed opportunity to take a look at it.”
Guldi asked what if Osborn were to learn that the “destruction of the check was willful and deliberate — “would that have affected your judgment?” asked Guldi.
The question was struck from the record.
Guldi said he had no further questions.
Judge Doyle announced a break for lunch and instructed the jury to return at 2 p.m.
Outside the courtroom, Christopher Brocato, Guldi’s court-appointed legal adviser, said there were key points made in favor of the defense so far.
He said, “Countrywide did not own the mortgage and all they’ve got is that it is a one in a million chance that it was the type from the typewriter” in Guldi’s office.
He added that during previous testimony, the Bank of America representative “admitted that Countrywide did not own the loan” and that a witness from Chase testified, “that the check was endorsed and drawn as it was supposed to have been.”
Witness Ethan Ellner once again took the stand.
Judge Doyle repeated his instructions from the previous day.
“I realize it’s a little difficult under the circumstances. You have a long-term relationship but this is a courtroom and you are going to follow the rules of the courtroom. I’m not going to allow sidebars every five or 10 minutes,” Doyle said.
The judge told counsel that they would have time to put their objections on the record, but not in front of the jury because it might confuse them as to the issues at hand. Judge Doyle then told Ellner that if he felt there was an unfair inference.
“You are not here as an attorney. You are here as a witness. You’re not to ask questions of counsel or to interject,” said Doyle.
Guldi began his questioning by asking Ellner, if he remembered the day before, when he was shown a deed from Dortha Coakley to Mel Ray Cards & Gifts dated Nov. 15, 2008.
He said he did.
Guldi asked if there was another closing between Mel Ray Cards & Gifts and Dortha Coakley.
An ADA’s objection to relevancy was sustained.
Guldi then had the witness shown a document and asked, “Isn’t this your plea agreement?”
“Yes,” Ellner said.
Guldi directed Ellner to look at a schedule, a list of real estate properties, which he is not facing charges, if he successfully completes the terms of his plea agreement?
“I see the schedule, but I need to read it,” said Ellner.
Guldi told Ellner to read it and “tell us what you believe it means.”
Ellner said it involved criminal activity he was engaged in that would be covered by the plea agreement.
Guldi asked about an address, 40 Broome Street and asked if it was covered by the agreement.
Stavrides objected due to relevancy and the objection was sustained.
Guldi asked for a sidebar.
“It’s critical, Your Honor,” said Guldi.
The judge refused.
“We’ll talk about it later. Move on,” the judge replied.
Guldi sighed heavily, brought a sheaf of papers to Brocato and told the judge that he would have to prepare a different line of questioning.
Guldi resumed his questioning, directing the witness to examine a number of documents and asking him if he recognized them.
Ellner said he recognized what they are, but said, “I don’t think I’ve seen them before.”
“Isn’t it your handwriting and isn’t it prepared by you?” asked Guldi.
“No,” said Ellner.
Guldi asked if Ellner had recorded assignment of a mortgage to DB Central and to UM Central.
Ellner said he did not recall.
Guldi asked if Ellner had testified that he had recorded the assignment.
An ADA’s objection was sustained.
Guldi asked if, on June 23, 2009, Ellner recalled testifying before a grand jury.
“Yes,” said Ellner.
The ADA told the judge that she was going to object to this line of questioning.
Judge Doyle overruled the objection and said he wanted to hear what was going to be said.
Guldi directed to a specific line of grand jury testimony regarding a property, located at 2027 Deerfield Road in Water Mill. Guldi said that a mortgage was taken by assignment and money was paid to the holder of the mortgage. Guldi also mentioned DB Central and asked if Ellner did anything to assist with the assignment.
Stavrides objected on relevancy; the objection was sustained.
Guldi once again asked for a sidebar.
“This is relevant. I want a sidebar,” Guldi said.
Stavrides objected and told the judge, “This line of questioning has opened the door fully to the mortgage fraud in the first indictment.”
As a note: Guldi and Ellner are both defendants in an over-$80 million mortgage fraud case. Guldi and Ellner, an operator of Suburban Abstract, a title company in Stony Brook, were arrested after allegedly defrauding lending institutions millions by using forged documents, false employment and income information on applications, straw buyers, false powers of attorney, deed flipping, and mortgage stacking. Also arrested were Donald MacPherson and Carrie Coakley, both Westhampton business owners.
“The door is open now,” said Stavrides, explaining to the judge that the house located at 2027 Deerfield Road is one of the main counts in the other case Guldi is facing.
The judge said the plea agreement has been entered into evidence and the jury has a right to know, but Guldi can refer to it in his closing argument.
“I’d like to be heard before you sustain the objection,” said Guldi.
Guldi told the judge that in February of 2009, Ellner took proceeds from a mortgage he closed and used $350,000 to purchase a second mortgage. He then went on say Ellner committed “perjury” in his grand jury testimony regarding Guldi’s indictment
It is, said Guldi a “bad act that is in violation of his agreement with the district attorney.”
“We’re not trying those cases here. It’s totally irrelevant,” said Judge Doyle.
Brocato said that if “this is proof of a bad act and untruthfulness, then it’s a matter of credibility and always relevant to a jury’s decision.”
Brocato said he believed Guldi’s point was that the witness “has been untruthful to the DA in his agreement with the DA.”
“It’s a collateral issue,” said the judge.
“This is perjury in the mind of Guldi, the defendant,” countered Stavrides, adding it opened the door to discuss Guldi’s alleged “theft” of millions from Wachovia Bank.
“Stealing property from little old ladies is not relevant?” Guldi asked.
“She has pled guilty,” snapped Stavrides. “And she’s not an old lady.”
Guldi became angry and told the judge, for the record, that his inability to name certain names of parties involved, including the high level county official who allegedly took a “bribe” from Ellner for county work, makes it totally impossible to defend himself.
He said, “The inability to name the vast array of criminals involved is depriving me of the ability to defend myself. I can’t conduct a coherent defense. The jury has a right to the truth.”
“They have a right to the truth in the case before them,” said the judge. “If you don’t want to purse a cross-examination, you can rest,” Doyle said.
Doyle added that Guldi could get a stay and pursue the case with another judge.
Talk has been brewing that Guldi could call for a stay and pursue an appeal based on violation of his constitutional rights.
In court, Guldi said he had a right to argue.
“Let’s move on or I’ll cut our cross examination off,” said the judge.
“It’s within my constitutional rights,” said Guldi.
“You will follow the rules or I will cut your cross examination off,” repeated the judge. “I would prefer not to.”
Guldi asked for a moment to reconstruct his line of questioning.
When he resumed questioning, Guldi asked Ellner if, when he testified before the grand jury, he testified about the fire at his house.
“Did you bring it up?” Guldi asked.
“I don’t believe so, no,” said Ellner.
Guldi then referred to a specific line from that testimony.
The ADA objected and said there was no reason for Guldi to be reading from prior testimony, then explained to Guldi the procedure involved with asking the question.
Guldi rephrased his question and asked Ellner if it refreshed his recollection.
“It does,” Ellner said.
“What is your recollection?”
“My recollection is I did offer some testimony to the grand jury about the fire.”
“Did you offer any testimony about whether or not you ever saw me altering, by cutting or pasting or whiting out, any document,” asked Guldi.
Stavrides offered an objection, which was sustained.
Guldi asked if it were true that Ellner testified to the grand jury that he never saw him cutting, pasting or whiting anything out.
The ADA objected due to relevancy; her objection was sustained.
“Did you ever see me sign anybody else’s name besides my own to any document?” asked Guldi.
“Yes,” said Ellner.
“Other than pursuant to power of attorney?” Guldi asked.
“Not that I can recall,” said Ellner.
Guldi asked if he had ever testified on that issue.
“No,” he said.
An ADA objection was sustained.
Guldi asked Ellner, if in testimony he gave in June, when he testified about the fire and about never seeing Guldi sign anyone else’s name, did he bring up anything about an alleged conversation that happened on a two mile, five minute drive from Guldi’s office to his house.
Stavrides objected based on improper use of prior testimony; the objection was sustained.
“You never brought this up to the grand jury?” asked Guldi.
Another objection was sustained.
“When was the first time you brought it up?” Guldi asked.
Ellner said he believed it was on Feb. 10, 2009.
Guldi asked about the next time.
“I don’t recall,” said Ellner.
“Isn’t it true it didn’t happen until July?” asked Guldi.
“No, it is not true,” said Ellner.
“What are we talking about here?” the judge asked.
Guldi said he was referring to the story about the check. He asked Ellner about the statement Ellner allegedly gave about the check. Ellner said Guldi told him about receiving a check that was made out to both him and Countrywide and that Guldi told him he was going to add Countrywide’s endorsement and deposit the check in the city.
“Did you ever see me do any of these acts?” asked Guldi.
“No,” said Ellner.
“So you have no knowledge of any of these events occurring?” asked Guldi.
“I only know what you told me,” said Ellner.
“So what you know of is a thought crime?” asked Guldi.
Stavrides’ objection was sustained.
Guldi reminded Ellner that he had testified that he had never seen Guldi sign anyone else’s name.
“Does that include checks?” asked Guldi.
“To the best of my recollection,” said Ellner.
Next, Guldi reminded Ellner of his testimony in which he stated that Guldi was “broke,” and asked if he had any understanding of the numerous properties Guldi owns in New York City and Vermont.
An objection by the ADA was sustained.
“Isn’t it true that this complaint was based upon our confidential informant statement?” asked Guldi.
Ellner said he did not understand the question.
Guldi said the charges filed by ADA Stavrides were based on information received from a confidential informant and asked if Ellner was the informant.
Ellner said the information was the basis of an investigation.
Guldi asked if it were true that the paperwork was not filed until July 2009.
Stavrides’ objection was sustained.
Guldi asked Ellner if he had testified that his chief motivation for cooperating with the DA’s office was to protect his mother.
“My chief motivation, yes,” said Ellner.
“Is it true that you testified to the grand jury that your mother was fully aware of your alteration of documents for Suburban Abstract?” asked Guldi.
Ellner said he did not recall.
“Counsel, you’re going to have to move along here,” advised the judge.
The judge calls for a five-minute break.
After the jury returns to the courtroom, the judge said, “issues have come up” and court would recess for the day and reconvene on Monday at 10 a.m. Turns out that Guldi told the judge that he was not feeling well.
The judge thanked the jury for their patience and said it has been a long trial, due in part to weather conditions.
“There are some things you have no control over. I’m trying to control the things we can control,” he said.
After the jury filed out, the judge told counsel that the jury seemed to agree that things were moving slowly.
“Try to move things along,” he said.
Outside the courtroom, Brocato confirmed that Levy’s subpoena to testify had been quashed.
“Mr. Guldi feels if the jury knew the types of things Mr. Ellner was involved in and who he was involved with, their view of him would be lower. He has no credibility,” said Brocato.
Guldi, he said, “knows he has no credibility” and has trying to illustrate to the jury what Ellner “has been doing, and whom he’s been doing it with.”
Mounding a defense, he said has been difficult, based on the ruling that names cannot be revealed and that the judge quashed of the subpoena.
“He’s having a hard time defending himself,” said Brocato.
Of the judge’s rulings, Brocato said, “We obviously disagree with him.”
Looking ahead, said Brocato, “Our strategy is to keep moving forward.”
Testimony is expected to wrap up this week, he said, but at least five more witnesses are still expected to take the stand.