United States v. Kenner (272 F. Supp. 3d 342, 2017)

MEMORANDUM AND ORDER

Joseph F. Bianco, District Judge:

On July 9, 2015, following a nine-week trial, a jury convicted -defendant Phillip Kenner (“Kenner”) of one count of conspiring to commit,wire-fraud, in violation of 18 U.S.C. § 1349 (Count One of the superseding indictment); four counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Counts Two, Three, Four, - and Seven); and one count 'of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Nine). (ECF No. 324.) In addition, the jury convicted defendant Tommy C. Constantine (“Constantine,” and together with Kenner, “defendants”) of one count of conspiring to commit, wire fraud (Count One); .five counts of wire fraud (Counts Two. through Six); and one count of conspiracy to commit money laundering (Count Nine). Now pending before the- Court is (1) Constantine’s motion for a judgment of acquittal as to all counts or, in the alternative, for. a new trial (ECF No. 346); and (2) Kenner’s motion for a new trial (ECF No. 416). For the reasons set forth below, the Court denies both motions.

First, with respect to his motion for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Pro-cédure, Constantine argues that there was insufficient evidence to convict him of either conspiracy charge because the government did not prove, beyond a reasonable doubt, that Constantine was a participant in any of three conspiracy objects — namely, defrauding investors in (1) a Hawaii land development project (“the Hawaii Project”); (2) Eufora LLC (“Eu-fora”), a prepaid credit card company run by Constantine; and (3) a fund for litigation against developer Ken Jowdy (“Jow-dy”) (the “Global Settlement Fund” or “GSF”). In addition, Constantine contends that there was no evidence connecting him with the wire transfers charged in Counts Two through Four of the superseding indictment, and he asserts that the Court should acquit him of the wire fraud charges in Counts Five and Six because the jury acquitted Kenner of those crimes and the evidence at trial showed that Constantine attempted to return the money at issue.

The Court finds all of these arguments unpersuasive. As set forth in greater detail below, the witness testimony and documentary evidence adduced at trial sufficiently established that Constantine agreed with Kenner to participate in all of the objectives of the conspiracy. In particular, bank records show that both defendants routinely diverted third-party funds intended to finance the Hawaii Project, Eufora, and the GSF to pay for undisclosed personal expenditures, such as — in Constantine’s case — race cars, rent, and lawsuits unrelated to those investments. Although Constantine argues, with respect to the Hawaii Project and Eufora, that he did not directly solicit money from the victims of those schemes, a reasonable juror could find — after viewing the record in a light most favorable to the government and drawing all inferences in its favor— that Constantine’s conversion of the proceeds from those endeavors, coupled with evidence that defendants attempted to conceal their fraud, proved beyond a reasonable doubt that • Constantine knowingly participated in those objectives of the conspiracy.

As for the Global Settlement Fund, Constantine contends that the alleged victims authorized all of the contested payments and that a defense witness testified that he permitted Constantine to use his GSF contributions for Constantine’s personal expenses. However, although there was evidence at trial that the Global Settlement Fund’s purposive ambit was broad and encompassed goals beyond financing litigation against Jowdy, none of the government’s witnesses testified that they approved using the GSF for defendants’ individual gain. Moreover, financial statements show that Constantine’s personal expenditures from the GSF exceeded the defense witness’s investments.

With respect to the wire fraud convictions, Counts Two through Four of the superseding indictment involved money transfers between Kenner and third parties. However, although Constantine did not directly participate in those transactions, a rational juror could find that he was culpable as a co-conspirator based on evidence that (1) the funds came from Eufora investments, and (2) they were a reasonably foreseeable consequence of Constantine and Kenner’s unlawful agreement to convert Eufora funds to their personal benefit.

Counts Five and Six also pertain to a Eufora investment, and insofar as Constantine argues that he is entitled to a judgment of acquittal based on the jury’s determination that Kenner was not guilty on those charges, an inconsistent verdict for two co-defendants does not provide grounds for Rule 29 relief. Further, a rational juror could conclude that Constantine had the requisite intent to defraud based on evidence that (1) he subsequently used the underlying funds for an undisclosed personal expenditure, and (2) the investor who wired that money never received the Eufora equity that Constantine had promised him. Constantine’s contention that he subsequently attempted to return that investment is not a basis for Rule 29 relief because it is well-established Second Circuit case law that, for federal wire fraud charges, scienter is measured at the time of the transaction, and the crime is complete once the fraudulent communication has been sent. Although a juror can consider later actions- to determine intent at the time of- the transaction, a rational juror could certainly have concluded that Constantine had the intent to defraud at the time of the investment at issue and only offered to return the money once the fraud was disclosed.

Accordingly, the Court denies Constantine’s Rule 29 motion in its entirety because the government proved his guilt beyond a reasonable doubt as to all charges.

Second, Constantine also moves, in the alternative, for a new trial pursuant 'to Federal Rule of Criminal Procedure 33 on the grounds of jury confusion and newly-discovered evidence.

Constantine argues that the Court should have provided the jury with a special verdict form that would have required them to specify which of the three conspiracy objects provided the basis for Constantine’s conviction. However, Constantine waived this argument at trial because he affirmatively withdrew his request for special interrogatories. In addition, assuming arguendo that he had not forfeited'that claim, there was no error — much less plain error — by the Court because Supreme Court and Second Circuit precedent make clear that a special verdict form is not required in a multi-object conspiracy prosecution. Moreover, the newly-discovered evidence proffered by Constantine does not warrant Rule 33 relief because it existed prior to the trial, and Constantine could have discovered it with due diligence. In any event, it is highly improbable that use of those materials at trial ’would have affected the jury’s verdict. Thus, Constantine’s Rule 33 motion is also denied.

Third, Kenner separately moves for a new trial under Rule 33, asserting that (1) the government withheld exculpatory evidence; (2) there is newly-discovered evidence; ■ and (3) the government committed prosecutorial misconduct. All of these arguments lack merit.

There was no violation of Kenner’s due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because all of the materials at issue were disclosed to Kenner, are cumulative of impeachment evidence that was introduced at trial, or were not in the government’s possession prior to trial. Further, there is no likelihood that any of those records would have altered the jury’s findings of guilt.

In addition, the newly-discovered evidence encompasses financial documents that Kenner obtained via subpoena during the trial and that he introduced as evidence during his own testimony. Thus, they were fully available to the jury. The remaining documents were either in Ken-ner’s possession or could have been discovered with due diligence before trial, and to the extent he did not have those records, introducing them as evidence would not have led to acquittal given the government’s substantial proof of guilt.

Kenner also alleges that the government made inappropriate statements during its cross-examination of him and during its rebuttal summation, and he asserts that the government suborned perjury from several of its witnesses. However, the contested remarks were not so egregious as to deprive Kenner of a fair' trial, the Court minimized any prejudice by sustaining contemporaneous objections and properly instructing the jury that questions and summations by counsel do not constitute evidence, and it is unlikely that the verdict would have been different, absent those remarks. Further, Kenner’s perjury claims merely reiterate the same credibility issues that his counsel vigorously explored at trial on cross-examination of the government’s witnesses and during his opening statement and summation. Kenner also testified in great detail as to these issues during the defense case. Therefore, any purported perjury was fully considered by the jury, which — after nine weeks of testimony and the introduction of more than 1,000 exhibits — had ample opportunity to fully evaluate the veracity of each witness in this case, including Kenner.

Finally, with respect to both Constantine’s and Kenner’s Rule 33 motions, the Court concludes, in its discretion, that a new trial is not warranted because there is no real possibility that an innocent person has been convicted.

Thus, for these reasons and those that follow, and after careful consideration of the parties' submissions, contentions at oral argument, and the extensive trial record, the Court denies defendants’ motions in their entirety.

I. Background

A. The Trial Evidence

As noted, the trial in this action lasted approximately nine weeks, and the evidence consisted of testimony from over 40 witnesses and more than 1,000 exhibits. In light of this voluminous record, the Court will limit its factual summary to the evidence that is relevant to the instant motions.

In brief, the government advanced three theories of fraud at trial pertaining to the Hawaii Project, Eufora, and the Global Settlement Fund.- With respect to the Hawaii Project, the government introduced evidence demonstrating that Kenner defrauded several professional hockey players who were clients of his. Those witnesses testified. that they contributed money to that endeavor based on Kenner’s representations that their investments would finance a real estate development in Hawaii; however, Kenner subsequently diverted his clients’ money — without their authorization — to another property development in Mexico that involved Jowdy. In addition,-. witnesses testified that Kenner used several lines of credit in their name to divert money in an unauthorized manner, and when Kenner failed to make interest payments, those accounts were closed, and his clients lost the collateral used to, secure those lines of credit. Further, and unbeknownst to Kenner’s clients, bank records introduced at trial showed that Constantine received money intended for the Hawaii Project. The government also adduced evidence of forged consulting agreements that purportedly justified those payments, as well as an audio recording of a conversation between Ken-ner and Constantine indicating that they colluded to conceal their fraud.

Similarly, with respect to Eufora objective, the government demonstrated at trial that Kenner solicited funds from several investors who believed that their money would be used to finance that company. Howeyer, bank records and testimony indicated.that Constantine converted those investments to cover his personal expenses, such as legal fees, without the investors’ authorization. Specifically,'the government showed at trial that the transactions underlying the wire fraud,charges in Counts Two through Six of the superseding indictment were derived from Eufora investments, and that Kenner and Constantine used that money for unapproved expenditures. Contemporaneous text messages between Kenner and Constantine from the relevant period also evinced an agreement by defendants to use Eufora money for their personal benefit.

Finally, several government. witnesses testified at trial that Kenner and Constantine convinced them to invest in the Global Settlement Fund because they believed that their contributions would principally finance litigation against Jowdy. However, bank records and testimony again demonstrated that both defendants used GSF funds for personal expenses. In particular, the evidence showed that Constantine paid his rent, various legal expenses, and for automotive work with money from the GSF.

1. Defendants’ Background

Kenner was a financial advisor to several investors, including professional hockey players. (See, e.g., Tr. at 130, 2913-14.) He attended Rensselaer Polytechnic Institute (“RPI”) for college, where he roomed and played hockey with government witness Joe Juneau (“Juneau”). (Id. at 124-26.)

Constantine was the founder and Chief Executive Officer of Eufora, a prepaid credit card company. (See, e.g., Government Exhibit (“GX”)-8021-R.) Constantine was also a professional race car driver. (See, e.g., id.; Tr. at 3667.) He and Kenner were longtime business partners, since at least 2002, when, they both held positions as officers of Eufora. (Defs.’ Exh. C-265.)

2. Relevant Witness Testimony and Other,Evidence

a. The Government’s Case

i. Joe Juneau

1. Direct Testimony

On direct examination, Juneau testified that, after graduating from RPI, he joined the National Hockey League (“NHL”) in ,1992. (Tr. at 124, 127.) Juneau introduced Kenner to Derek Sanderson, an NHL connection of his who worked at Boston Capital, a financial firm, and Kenner was hired to work at Boston Capital. (Id. at 128-29.) Juneau testified that Kenner then went on to work at other .financial investment companies and eventually started his own company, Standard Advisors, in 2002. (Id. at 132-33.)

Kenner served as Juneau’s financial adviser from 1994 through 2007 or 2008. (Id. at 130.) Juneau testified that, during this period, Kenner often sent him faxes of investment-related documents to sign that only contained the signature page. (Id. at 141-42.) Juneau also said that Kenner did not send him regular summaries of the status of Juneau’s various investments. (Id. at 142-43.) In or around 2002 or 2003, Kenner spoke with Juneau about investing in the Hawaii Project. (Id. at 137-38). A May 2005 exchange between Kenner and Juneau indicated that Juneau had invested $100,000 in that enterprise. (Id. at 145-46; GX-728.) In or around 2006, Kenner informed Juneau of the need to renew a line of credit with Northern Trust Bank (“Northern Trust”). (Tr. at 139.) However, despite being presented at trial with a Northern Trust document dated December 18, 2003 appearing to contain his signature and indicating that Juneau had agreed to open a line of credit with Northern Trust, Juneau testified that he could not recall ever authorizing that account. (Id. at 139-JO; GX-2152.) Juneau sent Kenner an email asking why the Northern Trust renewal document indicated that he had a $750,000 line of credit when Juneau was under the impression that his Hawaii Project investment was valued at $100,000. (Tr. at 162-67; GX-733.) Juneau said that he never authorized Kenner to invest more than $100,000 in the Hawaii Project on his behalf. (Tr. at 170-71.) Juneau further testified that he never received any return on his investment in the Hawaii Project. (Id. at 22-24.)

2. Cross-Examination

On cross-examination, Juneau testified that he had lost money on other investments. (Id. at 231-36.) He also testified that he could not remember whether he told investigators from the Federal Bureau of Investigation (“FBI”) about the Northern Trust line of credit when he met with them in 2009. (Id. 245-46.) Juneau further said that Kenner never prohibited him from contacting Northern Trust and that Juneau did in fact speak with a bank official named Aaron Mascarella (“Mascarel-la”) to inquire about the credit line. (Id. at 251-52; Defs.’ Exh. Kenner-3.) In addition, Juneau said that he had received an e-mail from Mascarella confirming that the Northern Trust line of credit had been paid off, and he also testified that he had signed a form authorizing the line of credit. (Tr. at 253-55; Defs.’ Exhs. Kenner-3 and Kenner-2152.) However, notwithstanding that repayment, Juneau said that he terminated his relationship with Kenner in or around the summer of 2005 because Kenner was unresponsive to Juneau’s attempts to communicate with him, and Juneau had lost more than $2 million in investments based on what he “belive[d] was getting out of [his] portfolio for different private deals that never came back.” (Tr. at 258-60.) Juneau admitted that Ken-ner never guaranteed any sort of financial return and that he understood the risks associated with investing. (Id. at 261-62.) He further acknowledged that he received a communication dated July 21, 2006 that indicated that there were positive developments regarding his Hawaii Project investment. (Id. at 296-97; Defs.’ Exh. Kenner-20

In addition, on cross-examination, Juneau testified that he had met Constantine only once, in or around December 2004. (Id. at 298-99.) Juneau had an approximately hour-long lunch with Constantine and Kenner, but did not recall what they discussed. (Id. at 299.) He also admitted that he had no contact with Constantine after that meal until Juneau sued Constantine in or around 2008 or 2009. (Id. 307-10.) That lawsuit, which Juneau filed to recoup financial losses on his various investments, was subsequently dismissed. (Id. at 311.) During settlement discussions involving that lawsuit, Constantine sent Juneau an e-mail stating that Juneau had “been grossly ill-advised by [his] attorneys and their so-called experts; as well as by a couple of disgruntled former colleagues of [Kenner’s], who know absolutely nothing about [Constantine] or his business.” (Id. at 322-23; Defs.’ Exh. C-2.) Juneau admitted that, although he never made a profit on any of his investments with Constantine, Constantine did return all of Juneau’s money (id. at 339), including a refund of his $100,000 investment in’Eufora on or around July 7, 2005 via a check sent to him by Kenner (id. at 302-07).

ii. Michael Peca

1. Direct Testimony

Michael Peca (“Peca”) is a retired professional-hockey player. (Tr. at 370.) He met Kenner in or around 1996 while Peca was playing for the Buffalo.Sabers. (Id. at 374.) Peca was introduced to Kenner because he was looking for a financial adviser to help him save money. (Id.) Their business relationship ended in 2009 after eroding over the preceding two years. (Id. at 375.)

On direct examination, Peca testified that Kenner at first pursued a conservative investment strategy, but that changed in or around 2001 after Pena signed a contract with the New York Islanders. (Id. at 378.) Peca then began to invest in land development properties and spoke with Kenner about the Hawaii Project in or around 2003. (Id. at 378-79.) Peca said he understood that the purpose of the Hawaii Project was to purchase agricultural land to build residential housing. (Id. at 379.) He further testified that he did not view the property at issue before agreeing to the investment, but he instead relied on Kenner’s description of the Hawaii Project. (Id. at 381.)

Peca said that Kénner created an investment company called Little Isle IV LLC (“Little Isle IV”) to manage the Hawaii Project, and Peca invested $100,000 in cash and $1.775 million in funding obtained through a line of credit. (Id. at 381-82.) Peca opened the line of credit with Northern Trust and secured it via bonds that Peca transferred to Northern Trust from his Charles Schwab -investment account, which represented an important part of his family’s financial savings. (Id. at 383-85.) Peca also testified that Kenner told him to obtain the line of credit from ■ Northern Trust, which Kenner said would have a six-to-nine-month lifespan and then be repaid in-full. (Id. at 384-85.) In addition, Peca testified that Kenner represented that the Northern Trust line of credit would, only be used to finance vertical construction as part of the Hawaii Project. (Id. at 386-87.) Peca also signed a document on or about March 11, 2005, allowing Kenner to access his line of credit with Northern Trust. (Id. at 387-88; GX-2142.) On April 4, 2005, Northern Trust bank records show that $1.25 million was drawn on the line of credit, and Peca testified that Kenner never informed him of that transaction. (Tr. 431; GX-2001.) Those funds were used to pay off the line of credit belonging to Owen Nolan (“Nolan”), another former NHL player, and Peca said that he never authorized Kenner to use his line of credit to remunerate Nolan. (Tr. at 431-32.)

After the line of credit became active, Peca received monthly activity reports pertaining to his bond account, but not for the line of credit itself. (Id. at 388-89.) On direct testimony, Peca reviewed a Northern Trust bank statement, covering the period from October 1, 2006 through October 31, 2006 for an account held by Little Isle IV. (Id. at 414-15; GX-2002.) That statement showed that, on October 19, 2006, Little Isle IV received a wire in the amount of $395,000 from Peca’s line of credit account with Northern Trust. (Tr. at 415-417; GX-2002.) Other Northern Trust bank account statements reflect that, on that same day, $395,000 was transferred from Little Isle IV to Ula Makika LLC (“Ula Makika”), and from. Ula Makika to Led Better Development Company LLC (“Led Better”). (Id. at 417-18; GX-2003.) Peca testified that he never authorized Kenner to transfer funds from his Northern Trust account to Led Better and believed that his line of credit would only be used to finance the Hawaii Project, (Tr. at 418-19.) He also said that he later learned from Kenner “well after the fact,” in or around 2010, that a portion of that line of credit was-used'to loan money to Jowdy. (Id. at 423-25.)

Moreover, on or around February 9, 2009, Peca received a letter from Northern Trust indicating that his line of credit was near default. (Tr. at 433-34; GX-716.) Peca said that he immediately contacted Kenner, who assured him not to worry. (Tr,' at 435.) However, Peca testified that Northern Trust' subsequently held his account in default; as a result, his collateral-ized bonds were “pretty much completely wiped out,” and Peca lost over $1,8 million. (Id. at 435-36.) Peca further said that Ken-ner never explained to him whát. had caused the default, and Peca did not know what had happened to that money. (Id. at 436.) Peca testified that, in or around August 2009, he asked Northern Trust to send all documents pertaining to his line of credit account to Kenner, but when Peca subsequently attempted to review those materials, Kenner told him that someone had broken into his home and stolen them. (Id. at 439-40.)

With respect to Eufora, Peca'testified that he first heard of that company in 2004 from Kenner. (Id. at 441.) He later met Constantine in 2009. (Id. at 442-43.) Peca said that he made several investments in Eufora in 2004 and 2008 for a total of $366,000. (Id. at 443; see also GX-751 and GX-762.) He wired those funds from his Charles Schwab account to Eufora, and Peca said that Kenner executed those transactions, (Id.)

For instance, on or.about April 4, 2008, Kenner sent a letter instruction, directing that $100,000 be wired from Peca’s Charles Schwab account to Constantine Management Group Ltd. (“CMG”). (Id. at 444-45; GX-753.) At trial, Peca testified that he did not know whether CMG had any connection with Eufora. (Tr, at 445-46.) Peca said that, after he discovered that wire instruction, he asked Kenner in or around 2011 or 2012 about the purpose of that funds transfer, but Kenner did not provide an explanation. (Id, at 446-47,452.)

•In addition, Peca testified that he was familiar with the Global Settlement Fund, which he said was “a legal 'fund designed for a-civil action against Ken Jowdy, with the hopes of the end game being acquiring the northwestern parcel of beach front property in” a real ¿state development in Mexico. (Id. at 420.) Peca said that, in or about 2009, he met with Constantine and Kenner to discuss strategy for the litigation, against Jowdy. (Id. at 452.) He testified that, at that time, he had not received a return' on his investment in. the Hawaii Project, (Id. at 463.) Constantine began that conversation by introducing himself and explaining the purpose of the Global Settlement Fund. (Id. at 453-54.) Peca further testified that Constantine promised that he would “make [Peca] whole in every investment [Peca] ever made to Phil Ken-ner and” Constantine, although Peca said at trial that Jowdy had no connection to Peca’s losses in the Hawaii Project, (Id. at 455-57.)

Peca said that he contributed $250,000 to the Global Settlement Fund through a lawyer named Ronald Richards (“Richards”), whom Kenner introduced to Peca. (Id. at 421, 459; GX-754.) Peca further testified that he did not know what happened to that money, and he said that Richards informed him, in or around 2011, that the Global . Settlement Fund was “gone.” (Tr. at 422, 460.) On or about May 18, 2009, Kenner sent Peca and his wife Kristin an e-mail indicating that Richards had received the $250,000 intended for the Global Settlement Fund and that, in return for that contribution, Peca would also receive additional equity in, inter alia, Eu-fora. (Id. at 468-65; GX-757.) Specifically, the e-mail stated that:-

In addition to the [GSF] paying for various legal fees, PR Agency fees, as well as other protective advances and settlement costs, you will be receiving transfer of membership agreements from [Constantine] for your acquisition of additional interest in Eufora, LLC, as well as your new LLC and operating agreements reflecting your ownership interest in the Avalon Airpark Real Estate Project, the Falcon-10 aircraft, and the two Palms Place condominium units.

You may not -recall [Constantine] or I mentioning the Palms units in=2 Oour [sic] conversation. In any case, because Moreau and [Constantine] settled that case as part of the Global Settlement, he has graciously elected to include you as a beneficiary in the significant equity that exists in those two units as part of this transaction.

As we discussed, rather than throwing money away only on legal fees, this strategy which effectively acquires significant assets, while providing a legal remedy, is by far our best solution.

(GX-757.)

Peca testified that he never received a return on any investment in Eufora, nor did he receive an explanation from Kenner or Constantine as to how Peca’s $250,000 contribution to the Global Settlement Fund was spent. (Tr. at 470-71.) In addition, Peca said that he contributed to the Global Settlement Fund because of his “desperation” to recover his other investments, as Constantine had promised. (Id. at 471-72.)'

2. Cross-Examination

On cross-examination, Peca testified that he never saw Kenner forge another person’s signature. (Id. at 488-89.) He also said that he never saw the operating agreement or any books and records for Little Isle IV. (Id. at 494.) Peca further testified at trial that he was never aware that the line of credit he obtained to fund the Hawaii Project was the source óf a loan to Jowdy for a development in Mexico. (Id. at 496.) However;- he admitted that he had testified before the grand jury that he was aware of a short-term loan made to Jowdy using Little Isle TVs capital account. (Id. at 499.) Peca also acknowledged that he never requested records from Northern Trust pertaining to his line of credit account and also did not challenge Kenner when he refused to explain why $100,000 of Peca’s funds were wired to CMG. (Id. at 504-07.) Moreover, Peca said that Kenner would often just send him the signature page for a document that he needed to sign. (Id. at 512-13, 615-17.) He explained that, from to time, he asked Kenner to send the remainder of a document, but said that he generally trusted that everything was in order. (Id. at 517.)

Moreover, Peca testified on cross-examination that, on or about November 9, 2009, he received an e-mail from Constantine sent to a group of investors indicating that a buyer had agreed to invest in a Mexico real estate development project and provide the $15 million needed for “settlement costs.” (Id. at 533-34; Defs.’ Exh. C-24.) Peca agreed at trial that this information was consistent with achieving the purpose of the Global Settlement Fund. (Tr. at 534-35.) However, Peca said that this deal with an individual named Robert Sonnen-blick (“Sonnenblick”) was ■ never consummated. (Id. at 536.) In addition, Peca testified that, when he met with Constantine and Kenner in 2009 to discuss the Global Settlement Fund, Kenner said that he needed money from Peca and the other NHL investors to fight Jowdy or else he risked losing everything. (Id. at 538-39.) Nevertheless, he said that it was his understanding from Kenner and Richards that Constantine was in charge of the Global Settlement Fund. (Id. at 540.) Peca further testified that he received several emails from Constantine in 2009 setting up conference calls to discuss management of the Global Settlement Fund. (Id. at 564-69; Defs.’ Exhs. C-32, C-33, C-34, C-35, and C-36.) Likewise, Peca said that Constantine kept him and other investors apprised of developments with the Global Settlement Fund through group e-mails. (Tr. at 580.)

3. Re-Direct Testimony

On re-direct, Peca testified that he never met Sonnenblick and did not know whether he actually exists, and he also said that he has no records indicating that he holds an interest in Eufora. (Id. at 608-09.) In addition, Peca testified that the lawsuit commenced against Jowdy to recoup a loan related to a Mexico development project was dismissed at Richards’ request without prejudice, and he said that he never received an accounting of how the Global Settlement Fund legal fees were- spent. (Id. at 613-15.)

iii. Shimon Betesh

Shimon Betesh (“Betesh”) is a real estate attorney who resides in Queens, New York. (Tr. at 634.) He testified that, in or around October 2006, he was involved in a transaction pertaining to Led Better. (Id. at 635.) He said that he was retained by Kenner, who was a member of that company, and that Kenner told him that Led Better was going to buy land for property development. (Id. at 635-37.) Led Better wired Betesh $769,000, on or about October 25, 2006, to facilitate that purchase. (Id. at 637-38; GX-1401.) Betesh testified that, on or about that date, Led Better closed on a property at 18 North Haven Way in Sag Harbor, New York (the “Sag Harbor Property”) that had a purchase price of $750,000. (Id. at 641-43, 649.) He also said that Led Better’s organizational documents show that Peca was neither a managing member nor an equity owner of Led Better. (Id. at 646-47; GX-703.) Be-tesh also affirmed that the Sag Harbor Property was located in New York, and not in Hawaii. (Tr. at 649.)

iv. Kristin Peca

1. Direct Testimony

Kristin Peca (“Mrs. Peca”) is the wife of Michael Peca. (Tr. at 660.) She met him in or around 1995 at approximately the time he met Kenner. (Id.) Mrs. Peca testified that she and her husband jointly make investment decisions for their family. (Id. at 662.)

She further testified that Kenner told her about the Hawaii Project, and she said that she and her husband invested $100,000 that they thought would confer 12 to 13 percent of a 35 percent stake in a company Kenner organized to facilitate that deal. (Id. at 666-67.) In addition, Ken-ner told her that he needed to get a line of credit from a bank that would be collater-alized with a bond account that Mrs. Peca and her husband set up. (Id. at 667.) Mrs. Peca further testified that Kenner said that none of the bond funds would “ever go missing.” (Id.) She also said that the bonds used to secure the line of credit was her family’s “safety net” in the event of financial hardship. (Id. at 668.) Moreover, Mrs. Peca said that she was initially reluctant to use the bonds in this way, but Kenner convinced her otherwise because she believed that he was looking out for family’s best interests. (Id. at 668-69.) Mrs. Peca further testified that she believed that the line of credit would be used to fund construction for the Hawaii Project and said that Kenner never told her that it would be used to buy land in Sag Harbor. (Id. at 669-70.) She also said that she believed that she would get her money back from the line of credit within six months, but that did not happen. (Id. at 670.)

Mrs. Peca said that, when she saw the letter from Northern Trust indicating that the line of credit account was in default, she panicked. {Id. at 679-80.) She further testified that her husband contacted Ken-ner to inquire as to what had happened, and that Kenner told him that the investment in the Hawaii Project was safe. {Id. at 680-81.) However, Mrs. Peca said that Kenner stopped returning her phone calls in or around 2009 and was slow in responding to other communications. {Id. at 682.)

With respect to Eufora, Mrs. Peca testified that Kenner told her about that investment opportunity and that his friend Constantine was involved, and she said that Kenner represented that Constantine held exclusive patents that allowed individuals with poor credit ratings to build better credit histories. {Id. at 671.) Mrs. Peca further testified that she and her husband made two investments in Eufora in 2004 and 2008, and that the latter investment occurred after Kenner told her that Eu-fora was about to “explode” and needed extra funding to “get us over the last little legal bit.” {Id. ■ at 672.) She also said that she would not have supported investing in Eufora if she knew that the patents Constantine held were being used as collateral for a loan because that would indicate that the company was in debt. {Id. at 673.) In addition, Mrs. Peca said that Kenner never told her that the Eufora investment would go to CMG. (Id. at 676.) At trial, she reviewed a statement for a bank account belonging to Constantine and said that it showed that the account received a $100,000 wire from Peca to CMG on or about April 7, 2008, and that, on the same day, an outgoing wire went from that account to Kenner for the same amount of money. (Id. at 676-77; GX-1706.) Mrs. Peca testified that she never authorized Kenner to receive investment funds intended for Eufora. (Tr. at 677.) She also said that she never received any official documentation reflecting the ownership interest that she and her husband held in Eufora and never received a return on that investment. (Id. at 678-79.)

In addition, Mrs. Peca testified that she met Constantine in 2009 when he and Ken-ner came to her home. (Id. at 683.) She said that Constantine told her that he had a plan to recoup the Hawaii Project investment through the Global Settlement- Fund. (Id. at 684.) Mrs: Peca said that Constantine explained that the line of credit was used to make loans to Jowdy and that filing a lawsuit against Jowdy would enable recovery of that money. (Id. at 684-85.) Kenner reportedly told her that he did not have the funds to finance that litigation himself and, therefore, needed funding from the Pecas, as well as other investors. (Id. at 685.) Mrs. Peca also said that Ken-ner and Constantine told her that every investor needed to contribute $250,000, or else the Global Settlement Fund would be unsuccessful. (Id. at 686.) They also reportedly told her that the money would be kept in an escrow account controlled by Richards (the “Richards Escrow Account”). (Id.) Mrs. Peca testified that she told Constantine and Kenner that she was not interested in investing in any other development projects and only wanted the Global Settlement Fund investment to be used for litigation against Jowdy. (Id. at 687.) Constantine did not tell her that he would be m charge of the Global Settlement Fund. (Id. at 688.)

Mrs. Peca also said that she was never informed that the Global Settlement Fund would be used to pay for. Constantine’s rent; for race cars or a home that- he purchased; or for a personal lawsuit pertaining to Constantine and race cars. (Id, at 694-95.) She testified that- she would never have authorized her Global Settlement Fund contribution to be used for those purposes. (Id. at 696.)

'Further; Mrs. Peca testified that Ken-ner eventually told her that all of the money in the Global Settlement Fund had been used up and that he did not receive any money from that endeavor. (Id. at 696, 709.) However, at trial, Mrs, Peca reviewed account statements for the Richards Escrow Account and said that they showed a $250,000 incoming wire transfer from the Pecas received on May 8, ?009 and a $22,425.02 outgoing wire transfer to Kenner on July 80, 2009. (Id. at 710-11; GX-1102 and GX-754.)

2. Cross-Examination

On cross-examination, Mrs. Peca said that she did not initially contact Northern Trust to inquire about the line of credit default because she believed that Kenner had the necessary information. (Tr. at 713.) She said that, eventually, the Pecas withdrew the power of attorney they had conferred on Kenner so that he could no longer- process financial transactions on their behalf. (Id. at 715.) Mrs. Peca testified that Kenner told her that someone had stolen the financial documents pertaining to the line of credit account from his home. (Id. at 716.) She said that she did not believe him because that explanation “seemed like another one of his conspiracy theory stories.” (Id. at 717.) Mrs. Peca further testified that she-received a packet of information from Kenner pertaining to Little Isle IV, but did not know what had happened to those materials. (Id. at 719-21.) In addition, she acknowledged that she thought that Kenner’s advice to begin investing in real estate developments i like the Hawaii Project was reasonable at the time it was given, and she did not think that he was being deceitful (Id. at 725-26.) Mrs. Peca said that she thought that she did receive some Northern Trust documents from Kenner, but they did not contain the information that the Pecas were looking for. (Id, at 752.) She also acknowledged that Kenner had told her that it may .take five to twenty years for a real estate 'investment to become profitable. (Id. at 757.)

Mrs. Peca further testified on cross-examination that she believed that'Constantine played a role in the -Eufora investment. (Id. at 729.) She also affirmed that the purpose of the May 2009 meeting involving Kenner, Constantine, and the Pe-cas was 'to discuss making a contribution to the Global Settlement Fund. (Id. at 770.) Mrs. Peca further testified that she recalled a discussion of how proceeding with the Global Settlement Fund would benefit the Pecas’ investment in Eufora. (Id. at 771.) She also acknowledged that, approximately ten days after making a $250,000 contribution to the. Global Settlement Fund, the Pecas received an e-mail from Kenner requesting permission to use those funds for purposes other than litigation against Jowdy, such as public relations agency fees. (Id. at 773-75.)

Likewise, Mrs. Peck admitted that, based on that e-mail, she understood that the Global Settlement Fund had multiple objectives beyond, litigation against Jowdy, including acquiring assets. (Id. at 777.) She testified that her husband responded to Kenner’s email and asked how much equity the Pecas had-obtained in Eufora with their contribution to the. Global Settlement Fund. (Id. at 778-79; Defs.’ Exh. C-26.) Moreover, Mrs, Peca said that she and her husband received an e-mail from Constantine that discussed other uses of the Global Settlement Fund besides litigation against Jowdy. (Tr. at 781-84; Defs.’ Exh. C-27.) She also acknowledged that her husband sent an email to Kenner.on May 22, 2009 that stated that he understood and accepted the terms of the settlement plan. (Tr. at 785; Defs.’ Exh. C-28.) Mrs. Peca said that Constantine set up conference calls to discuss management of-.the Global Settlement Fund in which she participated. (Tr. at 787-91.) She also testified that,' at some point, she requested that Richards return the Pecas’ Global Settlement Fund contribution, but she did' not recall the exact date' of that communication. (Id, at 792-93.) Finally, on cross-examination, Mrs. Peca testified that' Constantine was' not involved in managing the Pecas’ investment portfolio and never provided them with any advice regarding the Northern Trust line of credit. (Id. at 811.)'

3. Re-Direct Testimony

On re-direct, Mrs. Peca said that her understanding was that the Global Settlement Fund would be used for litigation against Jowdy and that conversations with Kenner and Constantine confirmed that belief. (Id. at 816-17.) She said that she would never have authorized them to spend the Pecas’ contribution on personal projects. (Id. at 818-19.)-. -

' v. Aaron Mascarella

1. Direct Testimony

Aaron Mascarella worked in the Scottsdale, Arizona office of Northern Trust from : 1994 to 2011. (Tr.. at 837.) He was assigned to the banking division from 1994 to 2005 and then transitioned to the lending division. (Id. at 838.)

Mascarella testified that he met Kenner in or around 2003. (Id. at 838-39.) ‘He said that a- client of his introduced ■ the two of them and identified Kenner as a financial advisor to several NHL players. (Id. at 839.) Mascarella further testified that Ken-ner had lunch with him -and a couple of colleagues from Northern Trust, and that Kenner said that he. was seeking financing for a project in Hawaii. (Id. at 839-40.) In addition, Mascarella said that Kenner proposed moving several of his clients’ investment accounts to Northern Trust to use as collateral for a loan. (Id. at 840.) He also said that he- created several bank accounts for Kenner, including one for Little Isle IV, which were to be used for the Hawaii Project. (Id. at 841; see also GX-2081-A and GX-2081-B.) In addition, he said, that, as- the sole member and manager of Little Isle iy,. only Kenner was authorized to transfer money into and out of that entity’s bank account. (Tr. at 844; see also GX-2081-C.) Mascarella testified that Kenner had the same authority with respect to Northern Trust bank accounts for several other companies. (Id. at 844-49.)

At trial, Mascarella reviewed a chart prepared by the government that summar rized all of the accounts pertaining to Hawaii entities and said that Kenner opened all of those accounts. (Id. at 849.) He further testified" that he was responsible for managing the lines of credit opened by Kenner with Northern Trust and said that they were secured by individual investment accounts that contained “conservatively invested” bonds and cash. (Id, at 850-52.) In addition, Mascarella said that Northern Trust would, not have provided loans to Kenner without that' collateral. (Id. at 851.)

Mascarella further testified that Kenner opened individual lines of credit with Northern' Trust for Peca, Nolan, Bryan Berard, Darryl Sydor, Steven Rucchin, Glenn Murray, Mattias Norstrom, and Sergei Gonchar; and he said that Kenner also obtained a corporate line of credit for Little Isle IV, which was secured by Nolan’s .and Juneau’s investment accounts. (Id. at 853-54.) He also said that Kenner was the only person who directed every transfer of money into and. out of those lines of credit, and that Kenner said that Northern Trust should only communicate with him regarding the lines of credit. (Id. at 856, 859.) Mascarella also said that Ken-ner told him that the NHL players were too busy to be bothered with decisions pertaining to the lines of credit and instructed Mascarella to send monthly statements for those accounts to Kenner’s personal residence. (Id. at 859.)

Mascarella also reviewed a March 23, 2007 e-mail from Juneau to Kenner inquiring as to why he had received a notice that his Northern Trust line of credit was in default, as well as Kenner’s response saying that he had paid off the line of credit and that everything was in order. (Id. at 860-61; Defs.’ Exh. Kenner-3.) In addition, Mascarella reviewed a series of Northern Trust account statements that he said indicated that, on March 23, 2007, Kenner had advanced $638,488.76 from Nolan’s individual line of credit to pay down $636,603.63 in the Little Isle IV corporate account secured by Juneau’s investments. (Tr. at 862-63; GX-2158, GX-2101, and GX-2133.)

Mascarella said that any time an interest payment for a line of credit was past due, he would inform Kenner of that fact, and Kenner would typically ask Mascarella to advance a loan on another line of credit to make the interest payment out of Little Isle IVs account. (Tr. at 864.) For instance, Mascarella said that on April 23, 2007, Kenner took out a $60,000 advance on Peca’s line of credit and used it to pay off an $11,000 interest payment due on Peca’s account, as well as interest payments for several other lines of credit. (Id. at 867-68; GX-22.)

Mascarella also summarized similar transactions that occurred with respect to Peca’s line of credit and other lines of credit. In sum, on several occasions, when an interest payment or payments were due for one or more lines of credit, Kenner advanced a loan on a line of credit that had availability (ie., a line of credit that had not reached its credit cap) and used that loan to pay off the interest due through Little Isle IVs corporate account. (Tr. at 868-75; GX-23-GX-35.)

Mascarella further testified that, in or around 2008, he met with Kenner at Ken-ner’s request to discuss increasing the credit available for the lines of credit. (Tr. at 875-76.) He also said that he did not meet with or contact any of the NHL players about this request. (Id. at 876-77.) In addition, Mascarella testified that a senior lender at Northern Trust informed Kenner that the bank needed a full accounting of all advances that had been made on the lines of credit, as well as tax paperwork, before extending the loan limits, and although Kenner said that he would provide that information, he never did. (Id. at 877.)

At trial, Mascarella said that, on or around October 16, 2008, the lines of credit were fully drawn, and accordingly, in or around July 2008, Kenner began making interest payments on those accounts by transferring funds from Northern Trust checking accounts for other entities that he controlled, such as Ula Makika, as well as from his personal bank account at Wells Fargo. (Id. at 878-79; GX-36, GX-38-40.) In addition, Mascarella said that the line of credits eventually entered default because interest payments were no longer being made. (Tr. at 881-84; GX-20.) In or around February and March 2009, Mascar-ella sent letters notifying the NHL players that their lines of credit accounts were in default for failure to make interest payments. (Tr. at 886-88; see also, e.g., GX-2112.) He further testified that, accordingly, Northern Trust seized control of the NHL players’ investment accounts and sold the investments therein. (Tr. at 888.)

For instance, on or about March 31, 2009, $1,794,392 from. Peca’s investment account was used to pay off his line of credit. (Id. at 891-92; GX-2162.) Mascar-ella said that Peca’s investment account was valued at a little over $1.8 million prior to that transaction. (Tr. at 892; GX-2162.) Similarly, Mascarella testified that, on March 31, 2009, $596,000 from Bryan Berard’s investment account and $1,010,645 from Steve Rucchin’s investment account'were used to pay off their respective lines of credit. (Tr. at 893-94; GX-2165 and GX-2173.) Finally, Mascarel-la said that Kenner never secured any line of credit with his own investment account. (Tr. at 894.)

2. Cross-Examination

On cross-examination, Mascarella testified that some of the default letters sent by Northern Trust were returned as undeliverable because of incorrect addresses. (Id. at 898-99.)-He said that neither he nor the bank did anything to obtain the correct addresses. (Id. at 899.) Mascarella further testified that using one line of credit to pay off another was not in and of itself worrisome. (Id. at 901.) He also said that he never saw Kenner forge another person’s signature and said, that he never told any of the NHL .players that Kenner had prohibited Mascarella from speaking with them directly. (Id. at 916, 918.) Finally, Mascarella testified on cross-examination that he never met or -communicated with Constantine prior to the trial and said that, to his knowledge, Constantine did not have anything to-do with the Northern Trust lines of credit that Mascarella had discussed. (Id. at 922-23.)

3. Re-Direct Testimony

On re-direct, Mascarella testified that he exchanged e-mails with Kenner on or about February 18, 2009 indicating that Kenner had received the Northern Trust default letters and promised to pay the-outstanding interest payments, but he said that Kenner never did so. (Id. at 925-27; GX-6514.)

vi. Ethel Kaiser

1. Direct Testimony

Ethel Kaiser (“Mrs. Kaiser”) is the mother of John Kaiser (“Kaiser”), and through him, she met Kenner. (Tr. at 932.) In or around 2005, Kenner and Kaiser asked Mrs. Kaiser to make a loan of $390,000 to the Hawaii Project. (Id. at 932-33.) Mrs. Kaiser said that she withdrew that loan from her savings account, and that it was supposed to be re-paid within 30 days with about 12 percent interest. (Id. at 933.) Mrs. Kaiser testified that neither the principal nor the interest on that loan were re-paid within 30 days, but she said that her son eventually reimbursed her “[d]own the line.” (Id. at 934.)

In addition, Mrs. Kaiser testified that she invested $70,000 from her savings in Eufora after speaking with Constantine. (Id. at 935-36.) She said that Constantine told her that Eufora “was going to be very, very big” and that she would “make a lot of money.” (Id. at 936.) However, Mrs. Kaiser testified that she lost that entire investment and never received any explanation as to what had happened to that money. (Id.)

2. Cross-Examination

On cross-examination, Mrs.’ Kaiser said that Kaiser advised her that the Hawaii Project was a good investment, but she said that he did not originate the idea for that endeavor. (Id. at 937-38.) She further testified that Kaiser repaid her Hawaii Project investment with 12 percent interest and that he had asked her for money to make other investments. (Id. at 939.) Mrs. Kaiser said that she always gave her son money when he asked, for it with the understanding that it would be re-paid with interest. (Id, at 940.) ■

In addition, Mrs. Kaiser testified that Kenner did not discuss, Eufora with her. (Id, at 944.) She said that she met Constantine for the first time in or around 2009, when she and her son traveled to Mexico. (Id, at 946.) Mrs. Kaiser testified that she spoke with Constantine on the phone about Eufora, but could not recall if that was before or after the Mexico meeting. (Id, at 947-48.) She said that only she, Constantine, and Kaiser were on that phone call and that Kaiser did all of the talking. (Id. at 948-49.) Mrs. Kaiser further testified that she Wired the $70,000 investment to her son in or around 2009. (Id. at 960.) In addition, she said that her son would never be involved in an effort to take over Eufora from Constantine. (Id, at 961-52.)

vii. John Kaiser

1. Direct Testimony

Kaiser served as a Suffolk County police officer. (Tr. at 954.) He testified that, in or around March 2002, he traveled to the big island of Hawaii with his friend Chris Manfredi (“Manfredi”)> and while they were there, they stopped by a real estate office to look at properties, including a 258-acre vacant tract of land. (Id. at 955-56, 960.) Kaiser said that the sale price for that land was $750,000. (Id, at 956.) He further testified that he and'Manfredi put down $10,000 on that property with the intention of buying and sub-dividing it into residential lots for sale or development. (Id. at 957, -960.)

In addition, Kaiser s'aid that he met Kenner in or around 2003 in Hawaii through a friend of Manfredi’s. (Id. at 960-61.) Kaiser-testified that Kenner ¡told him that he was “a financial advisor to a lot of different celebrities .., and a bunch, of hockey players,” was worth $500 million, and was interested in purchasing additional acreage for the purpose of real estate development. (Id. at 962,969.)

Kaiser further testified that, from 2003 to approximately 2006, he and Manfredi closed on the purchase of the initial 258-acre parcel and were conducting due diligence with respect to residential development. (Id. at 973.) He also said that, in or around the summer of 2005, Kenner contacted him to ask for a $1 million loan for the Hawaii Project. (Id. at 975-76.) Kaiser testified that he did not have all. of the money needed for this loan, so he solicited funds from family and friends. (Id. at 976-77.) Kaiser said that he wired the funds to Kau Holding Company and that Kenner told him that, at the end of 30 days, he would receive $1.1 million in -repayment with interest. (Id, at 977-78.) However, Kaiser said that he did not receive those funds at: the 30-day mark and asked Ken-ner for the money, who told him to wait, but Kenner never re-paid any portion of that loan. (Id. at 978-80.) As -a result, Kaiser used $1.2 million in proceeds from the sale of his personal residence to reimburse his family and friends who had contributed to that loan. (Id. at 980.) Kaiser further testified that, in or around April 2006, he and Manfredi met with' Kenner to discuss the status of the Hawaii Project, and he learned from Kenner that the $1 million- loan was used to fund a development project in Cabo San Lucas, Mexico, rather than in Hawaii. (Id. at-983.) He said that he learned'that the money went to fund a Jowdy-led development called Diamante Del Mar (“Diamante”). (Id. at 986.)

On direct testimony, Kaiser also reviewed two consulting agreements between Little Isle IV and CMG dated December 15, 2004 and June 1, 2005 that he purportedly signed, but he said that.his signatures on those documents were not--authentic. (Id. at 992-94; GX-5104.) He also said that he did not meet Constantine until late 2007 or early 2008 when Kenner introduced the two of them. (Tr. at 996-97.) Kaiser also testified that-he and others sold a 50 percent stake in -the Sag Harbor property to Kenner and Led Better in or around 2006 for $750,000. (Id. at 998-1004; GX-1602.)

In addition, Kaiser said that he was familiar with a man named Timothy Gaarn (“Gaarn”), who he said was involved with Eufora. (Tr. at 1046.) Kaiser testified that he received' á $30,000 wire transfer on February 12, 2009 from Gaarn, which he said constituted payment for a construction projéct in Paradise Valley, Arizona (the “Paradise Valley property”) that Kaiser worked on with Kenner. (Id. at 1045-47; GX-2303.) With respect to that transaction, Kaiser testified as follows:

Q. Why are you getting $30,000, do you recall, from Timothy Gaarn, manager at Eufora at this juncture?

A. Because I was in the process of a build for the [Paradise Valley property]; and Phil Kenner said that Tim Gaarn owed him money and he would send it to me.

Q. Why did you need money for that particular home? Were you developing the [Paradise Valley property]?

A. Because it was under construction. I was getting the materials and labor.

(Tr. at 1047.) However, Kaiser said that, on that same day, he sent $30,000 to Ken-ner because “Kenner said it was a-mistake, that he needed that money. It should have been sent to him directly.” (Id. at 1047-48; GX-1603 and'GX-1721.)

Similarly, Kaiser said that, on February 26, 2009, he transferred $40,300 to Kenner following an equivalent incoming transfer from Gaarn “[b]ecause [Kaiser] was directed from Phil Kenner that was — those funds weren’t supposed to be, used for the [Paradise Valley property]. It was an incorrect wire from Timothy Gaarn.” (Tr. at 1049-50; GX-1724 and GX-1604.) In addition, Kaiser testified that, on May 22, 2009, he received $25,000 from Kenner.. (Tr. at 1050-51; GX-1727.)

With respect to Eufora, Kaiser testified that he learned about that company through Kenner, in or around 2007, when Kenner told him that it “was going to be a huge company making millions and millions of dollars” because Constantine owned an important patent. (Id. at 1010-11.) He also said that he met with Constantine, who told him that this patent was valuable and that he was looking for 'investors. (Id. at 1013-15.) Kaiser said that he decided to invest $200,000 in Eufora via two wires sent to the Richards - Escrow Account in or around December 2009. (Id. at 1015, 1057-58; GX-1101.) He said that' Constantine solicited those funds from other-individuals, including Mrs. Kaiser, and Kaiser said that he relied on Constantine’s representations about Eufora to tell them that the investment was a great opportunity. (Id. at 1059-60.) In addition, Kaiser testified that Constantine told him that the funds had to be sent to Richards, rather than Eufora, and insisted that the funds would be used for the company. (Id. at 1064; GX-JK-1.)

Kaiser further testified that he heard Constantine call several NHL players to offer to buy back their shares in Eufora at half their value and said that they agreed to do so, but Kaiser said that he then spoke with NHL players himself after their conversation with Constantine and advised them not to sell their Eufora equity because Kaiser had seen documents indicating that the company was poised for financial success. (Id. at 1065-67.) Kaiser, along with others, later commenced a lawsuit against Constantine to try to recoup the value of their shares in Eufora. (Id. at 1069-70.) He said that he never recovered his $200,000 investment. (Id. at 1070.)

2. Cross-Examination

On cross-examination, Kaiser said that he spoke with Kenner in or around 2006 about lending money to Jowdy with a 15 percent interest rate that was separate from the $1 million loan that Kaiser provided to Kenner and that Kenner subsequently gave to Jowdy. (Id. at 1104-05.) He also said that he and Kenner stopped speaking for some time because of a dispute between them and that he believed that Kenner sent him a box of documents related to the Hawaii Project in or around 2010. (Id. at 1128-30.) In addition, Kaiser said that between 2003, when he first met Kenner, and August 2006, when Lehman Brothers lent money to the Hawaii Project, he was not aware of any individuals who contributed financing to the Hawaii Project other than Kenner. (Id. at 1187— 88.) He further testified that, in 2011, he learned from reviewing a “phony” consulting agreement that Kenner had sent to him that a man named Robert Gaudet, a golf professional employed at the Diamante resort in Mexico, was involved in obtaining funding for the Hawaii Project. (Id. at 1191-92.) Kaiser also testified that, from 2002 to 2006, Manfredi was involved in developing the Hawaii Project through collecting data necessary to obtain funding that he shared with Kenner. (Id. at 1198-1200.) He further said that Constantine and James Grdina (“Grdina”) were involved in financing a portion of the Hawaii Project known as the Waikapuna property, the purchase of which closed in or around 2005 or 2006. (Id. at 1207-09.)

In addition, Kaiser testified that Lehman Brothers provided a $105 million loan to the Hawaii Project in or around August 2006 and said that there was an approximate payout of $14 to $16 million, approximately $700,000 to $800,000 of which he received via wires to a bank account in the name of Na’alehu Ventures. (Id. at 1206, 1217-20; GX-2103.) Kaiser further reiterated that, prior to the 2