Or Maybe Not

As I pointed out a month ago, Judge Christian N. (“Speedy”) Weiler likes it live. See my blogpost “Live From Honolulu,” 4/2/25. Nothing out of court goes into evidence for the truth thereof except the cross-examined trial testimony of the dead and disabled and explicit FRE-sanctioned stuff. So the trusty attorneys for Bank Cove Capital, LLC, Gene Larson, Tax Matters Partner, Docket No. 12074-20, filed 5/1/25, get a Taishoff “Good Try, Second Class” but the expert opinion of the appraiser what brung them to the dance doesn’t get in, at least on a motion in limine.

Said appraiser, hereinafter designated as “Dubyuh” (name omitted to protect the innocent), beat the rap in USDCNDGA four years back, but goes in mortal dread that DOJ will seek an indictment in another jurisdiction. Hence if put on the stand for cross on the trial, he will take the Fifth. So let in his statement “for all purposes including the ‘Truth of the matter asserted.’” Order, at p. 1. It’s a FRE 803 business record, they claim.

That’s a thrashing bashing great negatory, good buddy, says Judge Speedy Weiler, although a lot more elegantly after a review of caselaw.

“While we accept petitioner’s contention that the appraisal in question was prepared as part of petitioner’s tax return and in compliance of its statutory tax reporting obligation; we do not accept petitioner’s contention that the appraisal becomes a component part of its tax return, and therefore is a business record itself.” Order, at p. 5.

 IRS moves to preclude, but that doesn’t fly, either. If Dubyuh chooses to testify, he’ll be treated as a percipient witness, not one retained specially to provide an expert opinion, and IRS can cross-examine him. Then Judge Speedy Weiler can see what his story is.

Once again, the immortal words of Colonel John Henry (“Wiggy”) Wigmore: “Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth.”