07/10 08:52
00:00:33 The airline's gone, but I still don't remember who I am.
00:00:36 Alzheimer's hasn't started.
00:01:17 Thank you very much.
00:02:18 Good morning everyone.
00:02:19 Please have a seat and welcome back.
00:02:29 Okay, so welcome back.
00:02:30 We now have our jury of 14 people, 12 jurors and two alternates.
00:02:37 You all hopefully had a chance to at least meet each other back in the jury room this morning.
00:02:41 We did you in two panels yesterday.
00:02:43 I'm going to give you instructions in a moment and then we're going to get started on things.
00:02:48 One issue that I did not do yesterday, and I apologize, but the second group learned about this during the questioning of one of our jurors.
00:02:55 I did not go through the list of witnesses who may testify
00:02:59 in this trial I want to make sure that I've given you those names in case somebody by some chance is related to one of the witnesses we can deal with it now before we get you seated and keep you so I'm gonna read off the list of witnesses if you recognize any of the names please raise your hand for the record Seth Kroenke Randy Elliott Kevin Clark Travis Turnbull
00:03:31 Frank Martin Charles Armstrong Raquel Luna Deborah Whittem Ron Whittem Douglas Baker Robert Rutherford and Joe Ward I didn't see any hands go up I see some people shaking your heads looks like we're clear council did I miss anybody
00:04:02 No, sir.
00:04:02 All right.
00:04:03 So we now have our jury folks.
00:04:04 Thank you for your patience in that process.
00:04:06 Ordinarily, we do that at the beginning of jury selection.
00:04:09 I just forgot.
00:04:11 So my apologies, but at least now we've got that squared away.
00:04:16 So in a moment, I'm going to give you some preliminary jury instructions.
00:04:21 But let me start with this.
00:04:23 So you have each been chosen as a juror in this case.
00:04:26 Before you take the juror's oath,
00:04:28 I want to impress upon you the seriousness and importance of being a member of the jury.
00:04:33 Trial by jury is a fundamental right in Alaska.
00:04:36 Each case is to be decided by citizens who are fairly selected, who act without bias, and who render a fair verdict based upon the evidence presented at trial.
00:04:46 You took one oath before you were questioned about your qualifications to be a juror.
00:04:50 Now you will take a second oath.
00:04:53 By this oath you swear or affirm that you will decide the case on the evidence presented and according to the law as explained by me.
00:05:00 When you take the oath you accept serious and important obligations.
00:05:05 The jury system depends on the honesty and integrity of each individual juror.
00:05:10 By this oath you affirm that the answers you have given concerning your qualifications to sit on this jury were complete and correct.
00:05:18 You affirm that you are truly impartial in this case.
00:05:22 You affirm that you have told the parties and me everything we should know about your ability to sit as a juror in this case.
00:05:29 If you believe you should not take this oath or that there is something else that the parties or I should know, please raise your hand.
00:05:39 Seeing none, you can give the information to me privately if necessary.
00:05:44 All right, we're now ready to administer the oath.
00:05:46 Madam Clerk?
00:05:47 Can you please stand and raise your right hand?
00:05:58 Thank you everyone please be seated and welcome once again my thanks to each and every one of you for serving on this jury I hope that you will find it a rewarding experience we're going to try and move through as efficiently as we can so that we can get the case in your hands I'm going to give you some
00:06:22 Housekeeping instructions first and then we're going to begin with opening statements here in a little bit.
00:06:28 So our trial day will start at 830 in the morning.
00:06:31 You must be here each morning ready to go by that time.
00:06:34 We can't begin until all of you are here.
00:06:37 The trial will continue until 130 each day except on Fridays where we'll stop at noon.
00:06:43 We don't take a lunch break so you should plan to bring a snack or something to eat during recess.
00:06:50 Alexis Robertson is is our in court deputy and from time to time we may have somebody else filling in to substitute for her during the recesses we take during the trial day you will retire to the jury room together coffee and restrooms are available in the jury room when we recess at the end of each trial day you don't have to remain together this is not a sequestered jury however you must obey the following instructions during each and every recess of the court
00:07:20 First, please do not discuss the case either among yourselves or with anyone else until the end of trial.
00:07:27 In fairness to the parties to this lawsuit, you must keep an open mind throughout the trial.
00:07:32 You must not reach your conclusion until final deliberations, which will be after all of the evidence is in, after you have heard the attorney's closing arguments, and after my instructions to you on the law.
00:07:44 During deliberations, you should reach your conclusion only after an exchange of views with the other members of the jury.
00:07:51 Second, do not permit anyone to discuss the case in your presence.
00:07:55 If anyone tries to do so, you should tell him or her to stop.
00:07:59 If they persist, report that fact to the in-court deputy as soon as you are able.
00:08:05 You should not, however, discuss with your fellow jurors either the fact that someone tried to talk to you about this case or any other fact that you feel necessary to bring to the attention of the court.
00:08:19 Third, although it is a normal human tendency to talk with people with whom one is thrown into contact, during the time that you serve on the jury, please do not talk in or out of the courtroom with any of the parties, their attorneys, or any witnesses.
00:08:33 By this I mean not only don't talk to them about the case, but please don't talk to them at all, even to pass the time of day.
00:08:40 The parties and the attorneys have been instructed likewise.
00:08:43 In no other way can all parties be assured of the absolute impartiality they are entitled to expect from you as the jurors.
00:08:51 This means, in part, if you see somebody in the hallway, even the day-to-day morning greetings of Good Morning may be returned with simple silence by one of the parties.
00:09:00 So please understand, nobody intends to be rude, but we need to make sure that the information that you get about the case comes solely from the courtroom.
00:09:09 And so that's why we give you this instruction.
00:09:12 Fourth, and this is really important, please do not conduct any investigations on your own or do any research concerning the case outside of the courtroom.
00:09:21 Please don't visit any locations where any of the events in this case have occurred.
00:09:25 Do not do any online, internet, or other independent research or investigation.
00:09:30 You must decide this case based only on the evidence presented here in court.
00:09:35 I'm going to pause there for a moment because ordinarily I give this instruction before you leave at the end of the first day.
00:09:42 I'm hoping that nobody was off on Google trying to figure out things about gold mines in Dan Creek.
00:09:50 I also want to give you some important instructions about your conduct as jurors.
00:10:01 You as the jurors must decide this case based only on the evidence presented here, and that means that during the trial you must not obtain any outside information from any source about this case or the people involved in it.
00:10:14 The reason for this instruction is that the parties, the court, and the public have a right to know what evidence you as the jurors are using to decide this case.
00:10:22 If you decide based on information you find on the internet or communicating with friends, this right will be violated.
00:10:29 In recent years, because of the growth in electronic communications, an increasing number of cases have had to be retried at significant expense because of juror misconduct in obtaining outside information
00:10:41 through the internet, blogs, email, electronic messaging, social networking sites, and other sources.
00:10:47 I need to be assured that each of you will do everything you can to prevent such an unfortunate outcome from happening in this case.
00:10:54 So once again, please do not look up any information about the case or the people, places, or subjects involved from any source, including public databases, dictionary, the internet, or other reference material.
00:11:06 Please don't look for information online or use a search engine like Google to obtain information.
00:11:12 Please don't read, listen to, or watch any newspaper, television, or radio report or commentary about the case.
00:11:18 Please let me or my staff know immediately if you or any of the jurors see or hear news reports or other reports, comments, or information about the case.
00:11:29 Please don't discuss with anyone, including friends, family, or coworkers, any subject connected with this case.
00:11:36 no discussion also means no electronic communication no emailing, texting, instant messaging, tweeting, blogging, chatting or posting on Facebook or other social networking sites you may tell people who need to know that you've been picked for the jury and how long the case may take but please don't discuss the case in any other way again if anyone tries to talk to you about the case tell that person you can't discuss the case because you are a juror
00:12:03 If the person won't stop, walk away and report the incident to me, the in-court clerk or bailiff.
00:12:10 As I mentioned earlier, special rules apply to the attorneys, parties, and witnesses in this case.
00:12:14 You must not talk about any subject with any of these people while you are serving on this jury.
00:12:19 They are not allowed to talk to you except during court proceedings.
00:12:24 Please don't discuss this case with other jurors until you begin your deliberations at the end of the case.
00:12:29 Please do not form any or express any opinion on the case
00:12:32 until you begin your deliberations.
00:12:35 A case can only be presented one piece at a time, and it is important that you keep an open mind until you have heard all the evidence, the arguments of counsel, and the court's instructions on the law.
00:12:45 When you talk about things, you start to make decisions about them, and it is extremely important that you not make any decisions about the case until you have heard all the evidence and all the rules for making your decisions.
00:12:58 Please don't conduct any tests or experiments, do any research or visit the places discussed in this case.
00:13:04 If you happen to pass by any of these places, do not stop or investigate.
00:13:08 Do not communicate any private or special knowledge about any of the facts of this case to your fellow jurors.
00:13:15 Please remember this instruction throughout the trial.
00:13:17 I will try to remind you of it whenever we take a break at the end of the day.
00:13:21 At the end of the trial, I will let you know when you are released from this instruction and how you may communicate with other people about the case if you wish to do so.
00:13:32 Now that you've taken your oath, you are ready to serve as jurors.
00:13:35 To assist you in that task, I'm going to explain how the trial is conducted.
00:13:39 There are five parts to a trial.
00:13:41 The first will be opening statements.
00:13:44 Each party will make an opening statement outlining their case.
00:13:47 What is said in opening statements is not evidence.
00:13:50 The purpose of opening statements is to provide you with a preview of the evidence the party intends to present.
00:13:56 Second part of the trial is the longest part of the trial because it is the presentation of evidence by each party.
00:14:03 Most of the evidence will be either testimony by witnesses or exhibits.
00:14:08 third part of the trial will be the closing arguments during closing arguments the parties will tell you what they believe the evidence has proved and urge you to draw conclusions from the evidence what is said in closing arguments is not evidence in the fourth part of the trial I will instruct you about the law which you must apply to reach your decision fifth part of the trial will be jury deliberations this is the time when you meet together to discuss the evidence to decide what the facts are to apply the law
00:14:36 and to make decisions required to arrive at a verdict.
00:14:40 We will now hear opening arguments from counsel, Mr. Brzezinski.
00:14:44 Thank you, Your Honor.
00:14:45 May I please the court, counsel?
00:14:57 Ladies and gentlemen, Alaska's history is rich with stories about the search of gold.
00:15:06 and its accompanying deceit and greed.
00:15:10 Today, we find ourselves connected to this legacy through the story of Seth Kroenke and his pursuit to purchase the Dan Creek mine owned by Mr. Elliott.
00:15:23 This case is about trust, deceit, and the blatant breach of good faith.
00:15:32 We are here to seek justice.
00:15:35 Justice for Seth Kroenke.
00:15:38 Mr. Kroenke is a contractor.
00:15:40 He's an expert in construction and land development.
00:15:44 And he signed a contract with Mr. Elliott, the owner of Dane Creek Mine.
00:15:52 Mr. Elliott for years has been looking for somebody to purchase his mine.
00:15:57 And in Seth, he found an ideal buyer.
00:16:02 mostly because of Seth's expertise in construction and land development.
00:16:10 Before you buy something, you have to know its price.
00:16:14 Mr. Elliott's price fluctuated, changed from $5 million, $11 million, $50 million.
00:16:23 So in order to determine the value, Mr. Kroenke had to test the soil and see
00:16:31 what deposits the mine held.
00:16:35 Testing, as you will hear, is an extremely expensive process.
00:16:41 So in order to conduct testing, Seth and Mr. Elliott signed an agreement.
00:16:48 You will see that agreement.
00:16:51 That contract, among some other things, required that Mr. Elliott provide the heavy equipment, which is already on site,
00:17:00 was necessary to conduct testing and evaluation.
00:17:06 Mr. Elliott would give Mr. Kroenke unrestricted access to explore, test, sample and mine anywhere he wanted to on the property.
00:17:22 Mr. Kroenke would provide an experienced crew that would use Mr. Elliott's equipment and conduct testing.
00:17:31 This contract was extraordinarily fair as, and you will see, it splits the expenses of this project equally between both parties.
00:17:44 And more importantly, or equally as importantly, the gold that the sampling and mining process that Mr. Kroenke would be engaged in would be split evenly as well.
00:17:57 Therefore, the risks or the expense
00:18:01 of testing and the reward of recovery would be equally shared between both individuals.
00:18:11 So Seth put together a highly skilled team.
00:18:14 They'll be here and you'll hear from them.
00:18:18 He provided top-notch equipment and full support.
00:18:23 However, when Seth's team arrived at the mine, they found the equipment
00:18:31 that they were supposed to be using in complete disrepair.
00:18:36 It was nonoperable.
00:18:38 It was a shade above junk.
00:18:40 So, instead of conducting what they were there to do, explore, test, and mine, they spent hours, weeks, repairing equipment that should have been working.
00:18:58 Moreover,
00:19:01 Mr. Elliott took it upon himself to direct Seth's crew to do things other than mine test and evaluate.
00:19:12 He had them build roads, access different parts of the mine.
00:19:18 He had them fix years of poor dirt work.
00:19:23 He had them build dikes to prevent flooding that was continuous at that mine.
00:19:30 All of this time and equipment was paid by Seth.
00:19:34 It only benefited Mr. Elliott.
00:19:37 All it did was increase the value of the mine and provide no value to Seth.
00:19:45 Well, Seth's crew is pretty determined, and in between fixing equipment and building infrastructure for Mr. Elliott, they got some testing done, and the perseverance payoff.
00:20:00 In the everlasting words of gold miners everywhere, they struggled.
00:20:04 They found the spot.
00:20:06 They cleared it, they dug down through topsoil, and they got down to what they call pay dirt.
00:20:13 It was great.
00:20:15 They set up the equipment, and they start doing what they're there to do.
00:20:20 Mine.
00:20:23 First day, three to six ounces.
00:20:25 Every day, it's getting better and better.
00:20:29 They were so excited.
00:20:31 Everybody was beyond thrilled.
00:20:34 This was it.
00:20:36 They were going to have their expenses covered very shortly and they were going to extract enough gold to have a sizable profit that would be equally split between Mr. Elliott and Seth.
00:20:52 Unfortunately, that triumph was very short lived.
00:20:59 About seven days into this exuberance, Mr. Elliott came down to the camp and told Seth's team that they would no longer have access to this piece of land.
00:21:15 They were instructed to go away and build more roads.
00:21:28 Nobody understood why, but Mr. Elliott's the owner of the land.
00:21:34 And to add insult to that injury, after forcing Seth's crew off the piece of land that they were so excited about, Mr. Elliott had his own subcontractors move in and start extracting gold from that exact spot.
00:21:56 And in short order, they extracted 2300 ounces of gold.
00:22:01 Gold that was discovered by Seth's crew and rightfully, half of which belonged to Seth.
00:22:09 Throughout this process, Mr. Elliott continuously
00:22:17 In writing, and verbally, reassured Seth that, don't worry, your expenses will be covered, I'll take care of you, there'll be plenty of time to mine, it's all going to work out.
00:22:28 This isn't once or twice.
00:22:30 This is continuous over months.
00:22:34 However, his promises proved to be empty.
00:22:39 Continuously, systematically, and methodically, Mr. Elliott redirected Seth's crew to his own project.
00:22:48 The projects that only benefited him at Seth's expense and did not allow Seth's team to do what they were there to do.
00:22:57 Those two.
00:22:58 Explore, test, and extract.
00:23:02 Mine.
00:23:08 You will hear from Seth.
00:23:09 He will tell you.
00:23:10 He's trying to reestablish this relationship.
00:23:13 Make it work.
00:23:14 Get his team back on track.
00:23:18 nope more promises all empty and nothing changes his guys at his expense are building infrastructure for the mine increasing the value of the mine and increasing Seth's expense Elliott basically hijacked Seth's crew as his own personal workforce for his sole benefit at the end of this trial
00:23:48 We will ask you to hold Mr. Elliott responsible for his deceitful conduct.
00:23:54 Once you hear and see all the evidence, there will be no question in your minds that we have proven our case, met our burden, and proved that Mr. Elliott breached his contract and that Seth is entitled to recover half
00:24:16 Well, I'm about to tell you a different story, and that's why you're here, is to help resolve this.
00:24:37 There's a lot of things Mr. Brzezinski said I agree with, and you'll hear me repeat some of them.
00:24:42 One thing that won't be in dispute is that Randy Elliott's life's work has been mining for gold at Dan Creek He spent four decades doing that.
00:24:49 It's all he knows.
00:24:50 It's all he's ever done and he's supported himself and his family through that work Mr.. Elliott is a sophisticated businessman you'll hear him testify about his business degree about the four businesses He's created in Alaska the extensive projects.
00:25:05 He's done all over the state of Alaska including in rural, Alaska
00:25:10 He's got a strong support system.
00:25:11 You'll hear from Kevin Clark, who's an engineer and a project manager.
00:25:16 There's a strong team that supports what Seth Kroenke does for a living.
00:25:22 Randy Elliott and his 40-plus years of mining at Dan Creek understands how hard it is.
00:25:28 It's really hard to mine out there.
00:25:30 It's hard for all the reasons we talked about in jury selection.
00:25:32 It's hard to get there.
00:25:33 It's hard to get equipment out there.
00:25:34 It's hard to get parts out there.
00:25:35 It's hard to get people out there.
00:25:37 Once you're out there, there's no way to resupply yourself unless you're
00:25:40 You've planned in advance.
00:25:42 There's an immense number of challenges.
00:25:44 And the reason that Mr. Elliott has been successful is because of his patience, his perseverance, and his careful planning.
00:25:51 Now, you could imagine Mr. Brzezinski and Mr. Kroenke chuckling a little bit at Mr. Elliott and the concept of careful planning.
00:25:58 But what you'll hear is that Mr. Elliott's whole life, 12 months a year, is thinking about mining at Dan Creek.
00:26:03 Now he doesn't have an office, he doesn't have a secretary, he doesn't have admin support, he doesn't have a computer, he doesn't have any of that stuff.
00:26:09 He's got a notebook he carries around and all the things that he's learned over 40 plus years of mining in Dan Creek.
00:26:15 He knows how to mine there, he knows how to get there, he knows how to mobilize, and he knows how to operate equipment.
00:26:22 He also has done most of the business over those 40 plus years based on handshakes, based on mutual trust.
00:26:28 That's how it's worked.
00:26:29 If you're going out to Dan Creek and you're mining with Randy Elliott, you've got to trust that he has your best interests at heart.
00:26:34 Not just your business interests, but your personal safety and your ability to come back at the end of the season.
00:26:39 And Mr. Elliott has delivered that over 40 plus years.
00:26:44 But he's getting older.
00:26:45 He's older than you probably think.
00:26:47 He's in his late 60s.
00:26:49 And he's been looking for a way out because he knows he can't mine at Dan Creek forever.
00:26:53 The risks are too significant and at some point he wants to be able to enjoy the fruits of his labor.
00:26:59 So what we need to think about as you think about this case is something that seems almost like a historical artifact, which is the rise of COVID in 2020.
00:27:07 And we can all remember what we were going through at that time.
00:27:11 But it's relevant to this case because in April 2020, Seth Kroenke was
00:27:16 Thank you for joining us.
00:27:31 construction projects like many of us wasn't sure what was going to happen and so where do you find some comfort economically it's probably not in the dollar it's probably not in your 401k it's probably not in your business but gold is pretty nice right gold is one of the things that you can count on that's probably going to hold its value and Mr. Kroenke understood he wanted gold and that's what brought Mr. Elliott and Mr. Kroenke together was through a mutual acquaintance Mr. Kroenke wanted to buy gold as an investment which makes sense and Mr. Elliott had gold
00:28:02 In April 2020, they met.
00:28:06 When they first met, Mr. Elliott wanted to sell some gold.
00:28:08 That's the business that he's in.
00:28:10 Mr. Kroenke wanted to buy some gold.
00:28:12 Mr. Kroenke invited Mr. Elliott to his home, and they discussed a purchase of gold.
00:28:16 Mr. Elliott had gold.
00:28:18 Mr. Kroenke had cash.
00:28:19 And I'll tell you, Mr. Elliott was really impressed with Mr. Kroenke.
00:28:23 Really impressed.
00:28:24 Why was he impressed?
00:28:25 He's this young guy with a business, with a beautiful family, a beautiful home.
00:28:29 He had a motor home.
00:28:29 He had a plane.
00:28:30 He's got a safe with $36,000 in cash.
00:28:33 He pulls it out and he hands it to Mr. Elliott for the gold.
00:28:35 Mr. Elliott thought that Mr. Kroenke was a player.
00:28:38 He's a guy that could buy that mine and provide an exit strategy.
00:28:42 That's what he thought.
00:28:44 But there's a saying that desperate times lead to desperate measures, right?
00:28:48 So you've got Mr. Elliott thinking about getting out of gold mining.
00:28:50 He's got his own uncertainty about what's going to happen with his future.
00:28:53 You've got Mr. Kroenke with uncertainty about what's happening with his business and our whole world economy.
00:28:59 And they're both certainly anxious.
00:29:00 They might even be somewhat desperate to try to make a business deal happen, right?
00:29:05 Mr. Elliott's a guy that's been mining for 40 years, and all of a sudden he finds a guy that might be able to buy the mine, who might be interested and might be willing to do it on a short timeline.
00:29:14 And Mr. Kroenke says, holy cow.
00:29:16 I've got a guy who's got a gold mine.
00:29:18 He's just given me a bunch of gold, so he knows it's real, and maybe this is my opportunity to get into gold mining.
00:29:24 So what do they do?
00:29:25 They rush in.
00:29:26 There's an old proverb that says, fools rush in where angels fear to tread, right?
00:29:32 So I'm not calling these guys fools, but they did rush into this deal, right?
00:29:36 Because they meet in April, and by, well,
00:29:39 Within about a month, they've decided they're going into business together.
00:29:42 And they're going into business in May 2020.
00:29:45 And you'll hear testimony from Mr. Elliott and Mr. Kroenke.
00:29:47 You'll see their text messages over that time period.
00:29:49 It's going to be an exhibit presented to you.
00:29:52 And they reach this agreement where after Mr. Kroenke goes out to Dan Creek for one day, he does a one-day site visit and says, I want to do this.
00:30:00 And on May 2nd, he texts Mr. Elliott and says, we're in.
00:30:02 We're mining.
00:30:03 So now they're rocking and rolling.
00:30:05 They're going to mine together, and they really haven't had time to really think through what it's going to really take.
00:30:10 But Mr. Elliott knows what it's going to take because he's gone out there every year and he's mined.
00:30:13 He knows exactly what it's going to take, and he knows what the challenges are.
00:30:16 Mr. Kroenke rushed into this situation.
00:30:18 There's no way he could have known what it would take to mobilize equipment and personnel out to Dan Creek.
00:30:23 There's no way he could have known it because he's never done it before.
00:30:26 He's been in construction, he's been in land development, but he hasn't been in a gold mining business in Dan Creek.
00:30:34 So you will see that they reached a one-page agreement.
00:30:37 Mr. Kroenke drafted that agreement.
00:30:39 He put the information in there.
00:30:40 Mr. Elliott will say, I read it.
00:30:42 I signed it.
00:30:43 I got myself into this.
00:30:45 But the express purpose of that agreement was to create an exit strategy for Mr. Elliott and to provide Mr. Kroenke the opportunity to test and evaluate the property at Dan Craig to see if he wanted to buy it.
00:30:57 What Mr. Elliott got out of this was the opportunity for an exit strategy.
00:31:01 That's all he got out of this.
00:31:02 He doesn't receive any benefit from Mr. Kroenke coming out there, bringing his personnel out there and Mr. Elliott having to train them.
00:31:09 His incentive, Mr. Elliott's incentive is to have someone that can be comfortable with the idea of purchasing the property.
00:31:15 And again, Mr. Elliott believes that Mr. Kroenke has the money to do it.
00:31:19 Mr. Kroenke tells him he's got money, he demonstrates that he has money, and he tells him he's got investors that are interested.
00:31:26 So in May 2020, Mr. Elliott helps Mr. Kroenke's team mobilize.
00:31:31 Now you'll hear that term, and what you'll understand that term to mean is mobilization means getting equipment and personnel, supplies, equipment, parts, etc., everything you need to operate self-sufficiently out at Dan Creek.
00:31:42 So over several weeks, Mr. Elliott primarily directs, leads, and mobilizes Mr. Kroenke's team.
00:31:50 Now you will hear evidence that there's another team that's out there operating.
00:31:53 And I think it's important for me to note right now that Mr. Brzezinski misstated or omitted that in the agreement that Mr. Kroenke wrote, both the parties expressly agreed that Mr. Kroenke's team would not interfere with that other team.
00:32:05 That's important for you to understand for two reasons.
00:32:07 Number one, Mr. Kroenke knew there were other contractors on the property, and number two, he agreed that they wouldn't interfere with that team.
00:32:13 So that was in writing as of May 5th.
00:32:18 Mr. Elliott
00:32:20 helps Mr. Kroenke's team get out there, and certainly the equipment is not in great condition.
00:32:24 It's been sitting out all winter, it had been operating last year, and you'll hear testimony from Mr. Elliott that at the end of a season,
00:32:30 His guys and he aren't the best about doing all the end of the year maintenance and repair that needs to happen, right?
00:32:36 You're rushing to finish the mining season and you don't leave yourself enough time to make sure the equipment is ready to operate.
00:32:41 So every year when you mobilize, you got to get the equipment running again.
00:32:44 Again, Mr. Elliott knows how to get that equipment running and knows how to extract gold from the property because he's done it for four decades.
00:32:52 But Mr. Kroenke, again, not fully contemplating what's really going to happen realizes, holy cow, I got guys out there working.
00:32:59 I've got equipment out there and I'm not seeing any gold yet.
00:33:01 So he gets anxious, right?
00:33:03 Because again, we're talking about the beginning of COVID and Mr. Kroenke is not seeing any return on his investment, right?
00:33:08 He gets really anxious.
00:33:09 And by the end of May, early June, he says to Mr. Elliott, this ain't working.
00:33:13 My guys are out there.
00:33:14 We're not really seeing much gold.
00:33:16 I need to be able to cover my expenses.
00:33:17 And Mr. Elliott says, the way we do that is we mine for the season.
00:33:21 So you'll see that there was an agreement, that the agreement was modified.
00:33:25 So they execute a second agreement.
00:33:27 And the primary difference is really
00:33:29 that they want to memorialize that Mr. Kroenke is going to have the opportunity to mine all year, and that's a critical word in this case.
00:33:35 He had the opportunity to mine.
00:33:37 Basically, what he gets out of it is he shares expenses with Mr. Elliott, and then he gets half the gold that's recovered.
00:33:43 Pretty good deal.
00:33:44 Mr. Elliott gives him half the gold, and you'll hear Mr. Elliott say, I don't give anybody half the gold.
00:33:48 That's a really favorable deal that I gave to Mr. Kroenke.
00:33:56 Under this new agreement, they start operating, and there's going to be
00:33:59 There's going to be a disagreement about what Mr. Elliott did, what he didn't do.
00:34:03 Mr. Elliott has a very significant incentive to have Mr. Kroenke's team recover gold, right, because he's getting half of it.
00:34:10 And he doesn't have to do much other than make sure that he's providing access subject to the other team that's out there and that he makes his equipment available.
00:34:19 You'll hear Mr. Elliott talk about how much time he spends trying to help Mr. Kroenke's team sort of understand where the gold might be and how they can better test and evaluate and
00:34:28 There'll be a disagreement.
00:34:30 You'll have to resolve this, but Mr. Elliott will tell you that there was no interference and there really wasn't any direction.
00:34:37 Again, if the purpose of the agreement was to allow Mr. Kroenke to evaluate the property to buy it, then it doesn't make sense for him to only mine and test in one location, but rather Mr. Elliott wanted to make sure that they had the opportunity to test the full property because if you're going to buy the full property, you want to know there's some gold there.
00:34:55 But Mr. Kroenke is not happy with the way things are going because he's not seeing the type of gold recovery that he wants to see.
00:35:00 He's spending money.
00:35:02 We'll hear from Mr. Kroenke what's going on with his business and what kind of construction projects are going on that summer.
00:35:07 But Mr. Elliott says, I understand, Mr. Kroenke.
00:35:08 It's not going quite the way you want.
00:35:10 So he gives him 43.6 ounces of gold.
00:35:13 He gives him $69,000 worth of gold to say, hey, I know you've had a lot of expenses.
00:35:17 I'll help cover your costs for this time, but we need to keep mining.
00:35:21 And in late July...
00:35:22 Mr. Kroenke is still unhappy, and that's where the dispute really starts.
00:35:25 There's a series of text messages.
00:35:27 You'll hear these two gentlemen testify about what was happening.
00:35:30 But there's a recognition through the text messages and through their conversations that things aren't going well.
00:35:35 And they begin to negotiate whether or not they can sell the property.
00:35:38 And Mr. Kroenke becomes uncomfortable.
00:35:42 He becomes anxious about it.
00:35:44 And ultimately, they can't reach a purchase price.
00:35:48 And in August, Mr. Kroenke just pulls all of his equipment and pulls his personnel out of the mine.
00:35:53 And that's important because the mining season typically goes through September and October.
00:35:56 So Mr. Kroenke consciously deprived himself of the opportunity to continue to mine and recover his expenses.
00:36:02 He made that decision unilaterally.
00:36:04 Mr. Elliott continued to mine that year with the subcontractors that were out there.
00:36:11 And then you'll hear testimony that Mr. Kroenke made several demands to have his expenses paid.
00:36:16 Mr. Elliott didn't meet those demands other than the gold he paid earlier in the summer.
00:36:20 And Mr. Elliott's intent was to wait till the end of the season, kind of like farming.
00:36:24 You got to know how the whole season goes.
00:36:25 Then you figure out what you spent, you figure out what you made, and you divvy up expenses.
00:36:29 Mr. Kroenke was too anxious.
00:36:31 What he did is he filed a lien against Mr. Elliott's property.
00:36:34 Then he said, pay me or I'm going to sue you.
00:36:37 And here we are.
00:36:37 Here's the lawsuit.
00:36:41 Mr. Elliott will testify.
00:36:42 You may hear testimony from other minors.
00:36:44 If you hear from them, it would be via Zoom because they're all out at Dan Creek.
00:36:48 You'll also hear that Mr. Elliott, after being sued, brought a claim against Mr. Kroenke for breaching the contract as well, as well as abusive process for the liens that were filed.
00:37:00 Like Mr. Brzezinski, he wants you to return a verdict for his client, and I'm going to ask you at the end of this case to return a verdict for Mr. Elliott.
00:37:07 I believe Mr. Elliott and Mr. Kroenke rushed into an agreement
00:37:11 They hadn't thought through all the implications of it and unfortunately here we are four years later trying to resolve that.
00:37:18 Mr. Elliott has waited patiently for this trial and I believe the evidence will show that he demonstrated patience, perseverance, and sufficient planning for the 2020 season to be successful for both Mr. Kroenke and Mr. Elliott.
00:37:31 I thank you for your attention.
00:37:34 Thank you, Mr. Campion.
00:37:36 So ladies and gentlemen, I'm going to read you some further instructions and then we're going to get into the evidence in this case.
00:37:42 So you've now heard the opening statements.
00:37:44 We will proceed to the second part of the trial.
00:37:47 This is your opportunity to see and hear evidence upon which you will decide the case.
00:37:52 Each side will have an opportunity to present evidence.
00:37:55 In our system, the plaintiff is entitled to present evidence first.
00:37:58 The defendant presents its evidence second.
00:38:01 Then each party may have an additional opportunity to present rebuttal evidence.
00:38:05 Some of the evidence may be sworn testimony by witnesses.
00:38:08 This testimony may be presented in person, by telephone, by video, or read to you from a sworn statement.
00:38:15 You must evaluate all sworn testimony regardless of how it is presented.
00:38:20 Each side will have an opportunity to question each witness.
00:38:24 This process is why we call our system an adversarial system.
00:38:29 We begin with direct examination, followed by cross-examination, then at times redirect and recross.
00:38:35 The party who calls the witness will start the questioning.
00:38:39 Some of the evidence may be presented as exhibits, such as documents, pictures, or objects.
00:38:45 The exhibits will be identified for you by number or by letter.
00:38:49 There are three other kinds of evidence that may be presented during the trial.
00:38:53 The parties may agree that certain facts are true.
00:38:56 This is called a stipulation.
00:38:57 There are also certain facts that the law requires you to accept as true.
00:39:02 This is called judicial notice.
00:39:04 The court will clearly identify stipulations and any facts of which the court takes judicial notice.
00:39:10 Finally, there may be facts that the law requires you to accept as true unless the other party proves that they are not true.
00:39:17 These facts are called presumptions.
00:39:19 The court will identify any presumptions for you.
00:39:23 I've told you about the sources of evidence and I will now tell you what is not evidence.
00:39:28 Nothing the attorneys say is evidence and nothing the court says is evidence.
00:39:33 If there are any exceptions to this during the trial, I will clearly identify them for you.
00:39:39 Remember, you must decide this case based only on the evidence presented here in court.
00:39:45 I've just described the way evidence may be presented.
00:39:48 Regardless of the way it is presented, evidence is either direct or circumstantial.
00:39:53 Direct evidence, if you accept it as true, proves a fact.
00:39:57 Circumstantial evidence, if you accept it as true, proves a fact from which you may infer that another fact is also true.
00:40:05 Let me give you an example.
00:40:07 Let us pretend that as a juror you are asked to decide the following question.
00:40:12 Did snow fall on a particular night?
00:40:15 Direct evidence would be a witness testifying that the witness woke up during the night, went to the window, and saw snow falling.
00:40:22 From this evidence, you could conclude that snow fell during the night.
00:40:26 circumstantial evidence would be a witness testifying that the ground was bare when the witness went to sleep at 10 p.m.
00:40:32 but the next morning when the witness awoke and looked out the window the witness saw that the ground was covered with snow from this evidence you could also conclude that snow fell during the night facts may be proved by either direct or circumstantial evidence the law accepts each as reasonable method of proof
00:40:54 Every person who testifies under oath is a witness.
00:40:58 You, as jurors, are the sole judges of credibility of the witnesses.
00:41:02 In deciding whether to believe a witness and how much weight to give a witness's testimony, you may consider anything that reasonably helps you to evaluate the testimony.
00:41:11 Among the things that you should consider are the following.
00:41:15 The witness's attitude, excuse me, appearance, attitude, and behavior on the stand and the way the witness testifies.
00:41:22 The witness's age, intelligence, and experience The witness's opportunity and ability to see or hear the things the witness testifies about The accuracy of the witness's memory Any motive of the witness not to tell the truth Any interest that the witness has in the outcome of the case Any bias of the witness Any opinion or reputation evidence about the witness's truthfulness
00:41:47 any prior criminal convictions of the witness which relate to honesty and veracity.
00:41:53 The testimony of the witness, sorry, the consistency of the witnesses testimony and whether it is supported or contradicted by other evidence.
00:42:02 You should bear in mind that inconsistencies and contradictions in a witnesses testimony or between a witnesses testimony and that of others do not necessarily mean that you should disbelieve the witness.
00:42:14 It is not uncommon for people to forget or remember things incorrectly, and this may explain some inconsistencies and contradictions.
00:42:22 It is not uncommon for two honest people to witness the same event or see or hear things differently.
00:42:31 It may be helpful when you evaluate inconsistencies and contradictions to consider whether they relate to important or unimportant facts.
00:42:39 If you believe that part of a witness's testimony is false, you may choose to distrust other parts also, but you are not required to do so.
00:42:47 You may believe all, part, or none of the testimony of any witness.
00:42:52 You need not believe a witness even if the witness's testimony is uncontradicted.
00:42:57 However, you should act reasonably in deciding whether you believe a witness and how much weight to give the witness's testimony.
00:43:06 Expert witnesses may testify in this case.
00:43:09 Experts have special training, education, skills, or knowledge that may be helpful to you.
00:43:14 In deciding whether to believe an expert and how much weight to give expert testimony, you should consider the same things that you would when any other witness testifies.
00:43:24 In addition, you should consider the following things.
00:43:28 1.
00:43:28 The special qualifications of the expert.
00:43:31 2.
00:43:31 The expert's knowledge of the subject matter involved in the case.
00:43:35 3.
00:43:35 The source of information considered by the expert
00:43:39 and number four, the reasons given for the expert's opinion.
00:43:43 As with other witnesses, you must decide whether or not to believe an expert and how much weight to give expert testimony.
00:43:50 You may believe all, part, or none of the testimony of an expert witness.
00:43:55 You need not believe an expert even if the testimony is uncontradicted.
00:43:59 However, you should act reasonably in deciding whether you believe an expert witness and how much weight to give expert testimony.
00:44:08 You may have exhibits such as documents, pictures or objects to consider as evidence.
00:44:12 In deciding how much to rely on an exhibit in reaching a verdict, you should examine its contents and consider how it relates to other evidence in the case.
00:44:21 Keep in mind that exhibits are not necessarily better evidence than testimony from witnesses.
00:44:32 You may take notes during the trial, but you are not required to do so.
00:44:36 If you decide to take notes, do not let your note-taking distract you from hearing and seeing all the evidence.
00:44:43 Your notes are to be used only by you to refresh your own recollection during deliberations.
00:44:52 Do not read your notes aloud or show them to other jurors.
00:44:55 During deliberations, the recollection of a juror who took notes is not necessarily more accurate than the recollection of another juror who did not take notes.
00:45:05 During each recess, you must leave your notepads and pencils on your chairs.
00:45:09 Your notes are kept confidential by being locked up overnight and placed on your chairs each morning.
00:45:15 After you have completed your deliberations, your notes will be collected by the court and shredded.
00:45:23 After a witness has testified, you may propose questions to the witness, but you are not required to do so.
00:45:28 The purpose of allowing you to submit questions is to help you understand the evidence.
00:45:33 You should not become aligned with any party or attempt to help or respond to any party with your questions.
00:45:39 You must remain neutral and impartial throughout this trial and you must not assume the role of an investigator or advocate.
00:45:46 Please write down the questions you want to ask.
00:45:49 Add your jury member number or your initials and pass questions to me.
00:45:53 I will then review them and show them to the parties.
00:45:56 I may ask your questions or I may allow the parties to ask them.
00:46:01 You must decide independently whether to ask any questions.
00:46:04 Do not discuss questions with anyone else or including other members of the jury.
00:46:09 I can only allow questions that comply with the rules of evidence.
00:46:13 Please don't hold it against either party if I decide not to ask your questions.
00:46:17 The decision whether to ask questions is one for the court, not for the parties.
00:46:23 You should consider answers to juror questions the same way that you consider answers to questions posed by the parties.
00:46:29 You should not give an answer to a juror question special weight or consideration.
00:46:37 The law prevents some types of information from being presented as evidence in a court of law.
00:46:41 This helps you focus on important and reliable evidence by excluding irrelevant, improper, or unreliable information.
00:46:50 An attorney has a duty to object when the other side offers evidence that the attorney believes is not admissible.
00:46:57 You should not be influenced by the fact that objections are made to certain questions or certain evidence.
00:47:02 You should also not be influenced by the number of objections that are made.
00:47:07 When an objection is made, the court will decide whether the evidence should be excluded.
00:47:11 The court may overrule an objection and permit the evidence to be considered.
00:47:15 That does not indicate any opinion of the court as to the weight or effect of that evidence.
00:47:20 The decision will be based only on whether the law permits you to consider such evidence.
00:47:26 If the court sustains an objection, you must disregard the question and any answer entirely.
00:47:32 You may not draw any inference from the question or speculate what the witness would have said if permitted to finish answering the question.
00:47:39 I may direct that certain evidence be stricken from the record and instruct you to disregard that evidence.
00:47:47 If that happens, you must not consider any evidence which the court has instructed you to disregard.
00:47:53 Your verdict must be based solely on legally admissible evidence.
00:47:58 My rulings on these matters will be determined by the law and are not based on my views as to the merits of the case, the evidence, the witnesses, or the attorneys.
00:48:09 If at any time during the trial you cannot see or hear a witness or an attorney, please raise your hand and I will correct the situation.
00:48:16 If you have another problem that you would like to bring to my attention or if you feel ill or need to go to the restroom, please give a note to the in-court clerk who will deliver it to me.
00:48:26 I want you to be comfortable as you carry out your important duties, so please don't hesitate to inform me of any problem that you have.
00:48:34 So let me emphasize this last point.
00:48:37 I don't want to see jurors squirming in your chair because you're uncomfortable and are embarrassed to say you want to go to the bathroom.
00:48:45 This comes up in every trial, and I really want to emphasize, put a hand up if you need to go.
00:48:51 We'll take a break and make sure you're comfortable.
00:48:53 That's of paramount importance to me.
00:48:56 to the lawyers from time to time the lawyers are going to have the same issue so please be comfortable everybody don't hesitate when you need that break and so based on that last point what I'm going to do now is give everybody a quick break now get yourself settled ready to hear evidence we're going to come back and hear
00:49:14 witness testimony here in a moment.
00:49:16 I'm also going to get notepads and pencils for each of you and we'll put those on your chair so that you can use those and then we'll come back and get started with the rest of the trial.
00:49:26 So we'll give you about a 10 minute break.
00:49:27 Thank you everybody.
00:50:01 Okay, folks, jury is out.
00:50:03 Any issues to address before we get started?
00:50:05 It looks like we're ready to go.
00:50:07 Just for my heads up, who's your first witness, Mr.?
00:50:10 Mr. Kroenke.
00:50:10 Okay, very good.
00:50:11 I expect about two hours, six minutes.
00:50:15 Okay, that's very precise.
00:50:18 Given that timing, I may break in between, and so if you find you're at a spot where you think it's an appropriate break point, let me know, give me a hint, and we'll try to do that.
00:50:29 I want everybody to be comfortable.
00:50:31 All right, we'll go off record and we'll get started in a moment.
00:50:34 May I move the book?
00:50:35 Yeah, please do.
00:50:35 Thank you.