Free Response to Motion - District Court of Federal Claims - federal

Case 1:06-cv-00407-ECH

Document 75-7

Filed 10/15/2007

Page 1 of 3

wi tness:

Brian Czerwinski
Page 1

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UNITED STATES COURT OF FEDERAL CLAIMS

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ALPHA I, L. P. ,
BY AND THROUGH
ROBERT SANDS,

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) CONDENSED ) TRANSCRIPT
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A NOTICE PARTNER,
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Plaintiffs,
V.
UNITED STATES OF AMERICA,

) No. 06-407-T
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Defendant.

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10 ** * ** * * ** * ** * * * * * ** *** * * * * * *** *** ******* * *** * * * * * * * * * * * *
ORAL DEPOSITION OF 11 BRIAN CZERWINSKI

12 VOLUME I
13

AUGUST 28, 2007

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14 ORAL DEPOSITION OF BRIAN CZERWINSKI, produced
15 as a witness at the instance of the Defendant, and duly

16 sworn, was taken in the above-styled and numered cause

17 on the 28th day of August, 2007, from 9:06 a.m. to 2:49
18 p.m., before Stacey R. Cruz, CSR in and for the State of

19 Texas, reported by machine shorthand, at the offices of

20 Department of Justice, Tax Division, located at 717
21 North Harwood Street, Suite 400, Dallas, Texas, in
22 accordance with the United States Court of Federal

23 Claims and the provisions stated on the record or
2 4 at tached hereto.
25

.. GOVERNMENT

i EXHIBIT
HUNDT REPORTING

L -APP-A-00034

214-220-1122

Case 1:06-cv-00407-ECH

Document 75-7

Filed 10/15/2007

Page 2 of 3

wi tness:

Brian Czerwinski

Page 6 Page 8 1 BRIAN CZERWISKI, 1 3 BY MS. JOHNS: 3 EXAATION 4 4
then they've left two voice messages; one yesterday, and

3 (Pages 6 to 9)

2 having been fITst duly sworn, testified as follows: 2 one Friday or over the weekend.

6 please. 6 7 A. Brian Czerwinski. 7

Q. And did you return those messages, return -with return phone calls?
A. No.

5 Q. Wil you state your name for the record, 5

Q. Okay. So you -- have you had any substantive conversations with them regarding the Sands case?
A. No.

8 Q. And wil you spell that for the cour reporter. 8

10 E-R-W-I-N-S-K-I. 10
11 Q. Now, Brian, we've met before when you came here 11

9 A. Czerwinski, C as in cat, Z as in zebra, 9

Q. Okay. What is your home address? A. 3572 Corkwood Drive, Frisco, 75034.
Q. Can you briefly give me a description of

your

12 to do a deposition in the Coldon Producer case 12 educational background from high school on?
A. From high school on, I went to Austin College 13 (phonetic), but my name's Michelle Johns. I'm with the 13 14 Deparent of Justice Tax Division, and we've discussed 14 in Sherman, Texas, and I have a bachelor of arts in and business administration, and then after 1 5 a few minutes before the deposition got stared, that 1 5 economics

17 A. Yes, ma'am. 17

16 you've had some experience giving depositions. 16

that, I went to work.

Q. And where did you work out of college? What 18 Q. SO you understand the rules; answer audibly so 18 was your first job out of college? A. With Hancock Financial Services, and that was 19 the court reporter can get your answer down, and we'll 19 2 0 tr to not talk over each other, and wait for me to 2 0 briefly; I don't think I ever actually made any money,

21 finish asking my question, and I'll wait for you to 21 and I waited tables at a couple of restaurants, and then

2 3 thatOkay. 2 3 24 A. okay? 24
22 finish answering the question before we speak again; is 22
25 Q. Have you prepared in anticipation of

in March of 1995, went to work for Heritage.
Q. Okay. And what was your job title when you went to work with Heritage in March of 1995? A. Just a member of the analytical department.

your 25
Page 7
1 2 3

Page 9
Q. And how long did your employment last with Heritage? 2004. A. Through April of

1 2 3 4 5
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testimony today in anyway?
A. No.

Q. Have you spoken with any of the attorneys for the Sands Family -A. Yes.

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5 6

Q. And did you resign from Heritage in April 2004? A. No, my employment was temiinated.

Q. -- prior to this deposition? And who was that? A. I don't even recall -- there's been three 8 different guys who've called, and I only spoke to them 9 briefly. And i don't -- i don't know, specifically, 10 which one i spoke to. There's three of them that have 11 called, Tom Cullinan. 12 Q. Okay. And this is Mr. Cullinan, by the way. 13 don't know if you got introduced. 14 A. Right. Joe -- Joe Du- -15 Q. DePuet (phonetic). 16 A. -- DePuet, and I think there was a third guy. 17 Q. Ken Jones, maybe? 18 A. That name doesn't sound familiar. 19 the Q. Okay. And what was the topic of
7

7
8

Q. Okay. Was there a specific reason why your employment was terminated? A. I think everyone at the company was let go.

20 conversations that you've had? 21 A. Well, originally, they called to see if i would 22 speak to them in advance of the deposition that was
23 previously scheduled, and I had arranged a time to speak
24 to them the following Monday, and then when the

9 Q. Okay. And then what happened in April 2004, as 10 far as employment? Did you find another job, at that 11 point? 12 A. I was unemployed until beginning of July of 13 '04. 14 Q. Uh-huh. And then what happened in July of'04? 15 A. I went to work for Mr. Kornman, Gary Komman -16 Q. Uh-huh. his. 17 A. -- for another company of 18 Q. And what was the name of that company? 19 A. Eagleview Capital Management. 20 Q. And how long did your employment last with 21 Eagleview Capital Management? 22 A. I think, including -- I think it changed its

23 name somewhere in the interim, but that lasted until

24 February or March of '06.
25 Q. And then what happened in February or March of

25 deposition was moved, i didn't hear back from them, and

HUNDT REPORTING

214-220-1122

APP-A-00035

Case 1:06-cv-00407-ECH

Document 75-7

Filed 10/15/2007

Page 3 of 3

wi tness :

Brian Czerwinski

Page 86 Page 88
1 A. I don't know. 1 Q. Okay. I'm going to ask you one last question, 2 Q. Generally, what was your understading 2 and then I think I'll be finished with you.

23 (Pages 86 to 89)

4 recorded? 4 Q. Was the strategy that Heritage implemented for
5 A. Typically, the only time that I would have 5 the Sands that we've just been discussing in this
6 recorded a conversation on my own would have been if 6 deposition, was it designed to eliminate capital gains

3 regarding what conversations would or would not be 3 A. Okay.

7 the conversation was going to be discussing, in some 7 ta?
8 way, the fee that would be paid to Heritage, because I 8 A. It was designed to give the opportnity to
9 never wanted to be, i guess -- since I wasn't authorized 9 potentially eliminate capital gains ta.

10 to establish the fee to Heritage, i didn't want to be in 10 MS. JOHNS: Okay. We'll pass the witness. 11 a situation where someone could say, Well, Brian told us 11 MR. CULLINAN: Great. Thans. 12 the fee $2 million, in reality, it should have been $2 12 MR. HERRN: Tom, i assume you'd rather not
13 and-a-half, and so I just wanted to the make sure that 13 break for lunch? I doubt if he wants to stay here, but

i 4 Heritage, and specifically Gary and the principals, knew 14 I thought I'd thow it out there.
15 that I wasn't telling the client that a fee was xis MR. CULLINAN: Well, let's go off

the

16 dollars. It was -- whatever the fee was going to be, 16 record for a minute. the record for one minute.) 17 was what the fee was from the agreement. 17 (Off

18 Q. Okay. And what about, not specifically with 18 EXAMIATION
19 respect to you, but generally, the Heritage policy? 19 BY MR. CULLINAN: 20 What was your understanding about the Heritage policy 20 Q. Good morning, Mr. Czerwinski. 21 regarding what conversations would be recorded and what 21 Have you ever been interviewed before by

22 conversations would not be recorded? 22 the IRS?
23 A. i mean, I guess I don't -- i mean, again, i 23 A. Interviewed or deposed?
24 don't know what -- I don't know what the policy was for 24 Q. Interviewed.

..__._._.........._-_._---_.........__._-_._---_.__..--------_._--_._....__.._._--_._.._-_.__.........-........__..Page 87
1 analytical department, I'm not surc if we were supposed
2 to be recording all these calls and we just never did,

25 every given department, and with respect to the 25 A. i don't think so.

Page 89
1 Q. Okay. Have you ever been deposed by the
2 Department of Justice?

3 because we didn't, or if, you know, there was a specific
4 policy with respect to -- to us. i just don't remember.
5 i just not that, typically, i never recorded phone

3 A. Yes.
4 Q. How many times?

5 A. Once.
6 Q. And that was the Comb case?

6 calls.
7 In my normal day-to-day functioning and my
8 responsibilities at Heritage, I didn't record many

7 A. Yes.
8 Q. Have you ever been deposed in any other

9 conversations at all over the six or seven years this
1 0 was going on.

9 proceeding?

10 A. Yes.
11 Q. And what were those proceedings?
12 A. Let's see if I can remember them alL There

11 Q. Did you, at the me- -- you said you attended 12 some face-to-face meetings with the Sands.

13 A. Yes.
14 Q. Do you know whether those meetings were
15 recorded by someone at Heritage?

13 was, I think, Carl Berg suing Heritage.

14 Q. B-E-R-G?

15 A. B-E-R-G. Penske versus Lewis, Rice & Fingersh,
16 Penske, P-E-N-S-K-E. Give me just a second. i mean, the
17 there's several, so -- I can't remember right now.

16 A. I don't know.
17 Q. Do you know what use Heritage would make of

18 transcriptions?

18 They'll -- they'll come to me, but there's mul- h
19 there's multiple depositions that I've given.
2 0 Q. Any other depositions taken by the government?

19 A. Well, the transcriptions that -- that -- you
2 a know, I tyically would see would be in the -- in the
21 marketing file that would be for meetings, you know,
22 before the client signed and you could use it to get --

21 A. I don't think so.
22 Q. You testified you worked at the analytical
23 departent at the Heritage organization; is that
24 accurate?

23 to get information out, you know, that was being
24 communicated back and fourth between the contractor,

25 whoever was there, and the -- the potential client.

2 5 A. Yes.

HUNDT REPORTING

214-220-1122

APP-A-00036