07/15 08:34
00:00:02 Case NUMBER 3AN20-08622CIVIL PARTIES IN COUNCIL ARE PRESENT.
00:00:09 JURY IS OUT, BUT ALL ASSEMBLED WITH ONE EXCEPTION.
00:00:11 WE LOST ONE.
00:00:25 We had a call from Ms.
00:00:27 Kuen this morning.
00:00:28 She was ill at the emergency room, so I have dismissed her at this point.
00:00:34 Juror number 10, back left.
00:00:38 So we are down to 13, but we have the remaining 13 are all here.
00:00:46 Madam Clerk said parties don't have any housekeeping matters.
00:00:49 I just want to touch bases on a couple of quick issues.
00:00:53 I have new jury instructions from each of you the one on recording sounds like it's agreed so no issue there I'll simply insert that in the packet that you all have given me there are a couple of procedural instructions that I will probably add particularly if we wind up with I'm assuming we're going to do video or zoom testimony today is that still the plan yes it is and any any inkling in terms of whether any deposition testimony is going to be read to the jury still
00:01:23 I believe so, yes, Your Honor.
00:01:24 Speaking of Zoom, Direct, and Cross, just to make sure that we don't create any difficulty for the court, how are we going to be able to show documents?
00:01:38 Do they have all the documents?
00:01:39 Do they have copies of their depositions?
00:01:42 I just don't know.
00:01:43 That's entirely up to you all.
00:01:48 Court doesn't provide them with copies of exhibits, so I don't know.
00:01:51 Right.
00:01:52 These are Mr. Campion's witnesses, so I don't know what he's given them or what he's not given them.
00:01:57 I have no control.
00:02:02 I think if you want to cross-examine a witness with a document, you have to make arrangements to show it to them.
00:02:06 Now, how you do that technically with somebody who's on Zoom or remote
00:02:12 There are ways that typically can be done, but that's done in advance.
00:02:16 You've got to get them the documents in some fashion if you want to question a juror about a document.
00:02:21 I don't know whether they have copies of their depositions.
00:02:39 If I understand, Your Honor, when the witness is on the Zoom testimony today, they're going to be on these screens in front of us?
00:02:48 They'll be on those screens.
00:02:50 We can put them on those screens in front of you, but I would put them on the big screen.
00:02:54 They're going to be on the big screen as well?
00:02:56 Yes.
00:02:58 When we do Zoom depositions and we have a computer, we're able to show a document by sharing our screen with the witness?
00:03:08 If you've got the documents on your screen and you're logged into the Zoom, you can share screen to show the witness, assuming the witness has a screen on their end.
00:03:19 I mean, that's done on a regular basis.
00:03:24 But you have to be able to show the witness the document in some fashion if you're going to question them about it.
00:03:29 Should we e-mail them?
00:03:33 We can e-mail them.
00:03:35 Clint, do you have e-mail addresses for these witnesses?
00:03:39 We can email them deposition transcripts.
00:03:42 I have an email address for Mr. Widom.
00:03:45 I don't have an email address for Ms.
00:03:46 Luna.
00:03:47 How is she going to receive a Zoom invite if she doesn't have an email address?
00:03:52 With all due respect, we shouldn't be doing this right now.
00:03:54 I notified the opposing party we were going to call them by Zoom several days ago.
00:03:58 Ms.
00:03:58 Luna is going to testify at the Widom's residence.
00:04:01 I checked this morning to confirm that the Zoom link is available to them.
00:04:04 I did a Zoom call with the Widoms this morning.
00:04:07 Ms.
00:04:07 Luna is going to come down to their house.
00:04:09 and she's going to access Zoom through the WIDMS computer.
00:04:12 The WIDMS have been instructed to leave the room so that when Ms.
00:04:15 Luna testifies, she's the only person in the room.
00:04:16 Okay.
00:04:18 So then if they're all going to be at the WIDMS, perhaps we can just have an email address for the WIDMS and send the deposition transcripts to that one email and they can share it?
00:04:30 Let's do this.
00:04:31 Let's finish up with Mr. Elliott.
00:04:33 You all figure out what you need to do.
00:04:35 I mean, I don't know what you plan to do with the depositions other than cross-examine them.
00:04:43 That's going to be challenging if you're trying to send an entire deposition and somebody's looking at it on a phone.
00:04:49 But I leave that to you all.
00:04:51 Give some thought to what you want to question them about.
00:04:53 If it's just inconsistent, if you're just doing it for impeachment...
00:04:58 You're not going to be reading the deposition pages to them and asking them to comment, right?
00:05:05 Well, normally in impeachment I would ask a question, was the car red?
00:05:10 And they say yes.
00:05:12 Did you previously testify that it was blue?
00:05:14 Did you give a deposition?
00:05:15 Do you remember it was under oath?
00:05:16 And then I read question and answer from the deposition and move on.
00:05:22 All right, so I don't know whether we're going to have inconsistent statements or not at this point so in any event But these are the kinds of arrangements that you all should have addressed in advance, but we'll take it up as it comes Okay
00:05:42 Going back to instructions for a moment, Mr. Campy and I have your proposed instruction on punitives.
00:05:47 Obviously, I'm not going to give that at all unless we get to that stage.
00:05:52 That's the second piece of the case.
00:05:58 Still planning to finish up evidence today?
00:06:00 Is that the plan?
00:06:01 Yes, sir.
00:06:02 Mr. Campion, that's your plan as well?
00:06:04 Yes, it is.
00:06:05 Mr. Elliott will finish his testimony, then we have the two Zoom witnesses, and then we'll rest.
00:06:08 And then it's a question of whether you have any rebuttal.
00:06:11 Yes, we do, Judge.
00:06:11 It's going to be a relatively short rebuttal of Mr. Kroenke.
00:06:14 Okay.
00:06:15 All right.
00:06:17 What I would propose is this, then, that once we get done with the evidence, that we go ahead and dismiss the jurors for the day that we plan to do closing tomorrow morning.
00:06:27 I would suggest that we
00:06:30 Tell the jurors to come in and plan on closing at 9 have you all get here get set up at 830 if there's any preliminary Issues that we need to deal with I'll have the instruction packet ready for you at that point So you can review it make sure it's ready to go before we get to closing You each get an hour for closing.
00:06:47 It'll take me an hour or so to give them instructions We'll get all that done and then they can have lunch Any question about that plan
00:06:58 That plan sounds fine, Your Honor, just to give the court advance notice.
00:07:02 When the defense rests today, I think it's very likely that the plaintiff will decide not to pursue its count for implied contract.
00:07:16 We had pleaded that in the alternative, so we have breach of contract, breach of covenant, good faith and fair dealing, and implied contract.
00:07:23 There hasn't been an argument that these contracts aren't enforceable, that the parties aren't entitled to recover under them, and so we're very likely to dismiss that count, and I say that now because I'd be happy to draft a new special
00:07:36 for the jury taking out that count from our case in chief and then removing the implied contract instructions from the packet.
00:07:42 I'm actually glad you raised that issue because I have a note it was next on my list is are they alternative counts?
00:07:49 It seems to me the way the instructions and the verdict form were worded they could be cumulative.
00:07:54 So it sounds like they're alternative counts and that would be appropriate if you dismiss it.
00:07:59 So thanks for raising that.
00:08:02 Very quickly, Judge, for closing, since we have first and last closing, does the court have any particular rule of how we need to reserve time?
00:08:10 Do we need to tell you in advance?
00:08:13 Do we do 50-50, 75-25, 5?
00:08:15 Reserve what portion of your hour you want for the last portion of it.
00:08:21 Each side is going to get an hour.
00:08:22 If you want to reserve 15 minutes, 10 minutes, whatever you want for rebuttal.
00:08:28 I'll let you do that, but just let me know in advance.
00:08:30 Great, so I can do any portion thereof, either way.
00:08:33 Yes.
00:08:37 Okay, that's all I had in terms of my list.
00:08:40 Anything further, Mr. Kroenke?
00:08:43 I just had a question.
00:08:44 I haven't done a trial with you, Your Honor.
00:08:46 When you do the instructions, will the jurors have a hard copy to read along with you when you give the instructions, or will you display them, or will they just be listening to you?
00:08:55 My practice is to give them a hard copy so that they can read along.
00:08:59 They will each get a set.
00:09:01 We'll make sure they've got it.
00:09:03 That way, if they want to make notes on their own copy while they're going, they can do that and they can follow along.
00:09:08 I just think it's easier.
00:09:10 Thank you.
00:09:10 That's helpful.
00:09:14 Okay.
00:09:16 I intend to tell them, at least explain to them that we're down to 13, and that's why we have alternates.
00:09:23 Thank them all for being here.
00:09:24 We'll do that right off the bat.
00:09:26 Again, remind them, probably tell them that our plan is to finish the evidence today.
00:09:30 They should make arrangements for tomorrow to be here all day because they'll be deliberating once they get the case.
00:09:36 We'll let him know.
00:09:37 I think that answers my next question, Judge.
00:09:39 So when jury deliberates, they go until 5, not 1.30?
00:09:43 4.30, or they can go later, but yeah, it's all day once they start deliberating.
00:09:47 Very good, sir.
00:09:48 Thank you.
00:09:50 Okay.
00:10:41 gentlemen just make sure I'm clear we left off with a little bit across left to go yesterday glad you did okay all right folks let's see what we've got okay one's an easy one this is from
00:11:05 A juror whose wife has an appointment this afternoon needs to leave no later than 2, so that's an easy one.
00:11:26 The other one is a little less easy.
00:11:29 This one is, I'll read you the question.
00:11:31 It says, does Mr. Elliott have federal tax returns from the year 2020?
00:11:36 If so, could the jury see them?
00:11:39 Second question from the same juror.
00:11:41 Likewise, could we see the gold ledger book that was referred to in trial?
00:11:45 I just have it in my hand.
00:11:48 Go ahead.
00:11:51 I think the answer to both questions is the exhibits that they get are the evidence that they're allowed to consider and so we're not going to be adding additional exhibits there are a variety of reasons strategic and otherwise that the parties may not present documents that they want
00:12:23 So I will address both issues with the jury when they come in.
00:14:16 Good morning, everybody.
00:14:17 Please have a seat.
00:14:18 Thank you.
00:14:18 Welcome back.
00:14:26 While you're getting settled, let me take up a couple of quick matters for you.
00:14:29 First of all, you'll notice we have an empty chair this morning.
00:14:32 One of your members is ill, which is why we have
00:14:37 alternate jurors is precisely for that possibility so Ms.
00:14:41 Kuen who was our 14th juror at this point because she's not here to hear the remaining evidence has been dismissed so there are going to be 13 of you at this point going forward as a reminder once we get to the close of the case if we still have 13 of you we're going to randomly select one of you and say thank you you were an alternate and let you go and there will be 12 that actually deliberate once we get to that
00:15:08 For scheduling purposes, we are running ahead of where I thought we would be.
00:15:12 We expect that we're going to finish up with the evidence today, which means we'll hear closing arguments, and I'll give you instructions tomorrow, and you should begin deliberating tomorrow as well.
00:15:24 So for your planning purposes, once you get to deliberations, you'll go all day.
00:15:29 So if you need to make arrangements with employers, childcare, spouses, significant others, tomorrow's the day.
00:15:37 I did have a question from one of you, Mr. Susi.
00:15:41 You've got an appointment with your wife this afternoon, I think.
00:15:45 I shouldn't have any problem getting you out of here on time to make sure that that gets taken care of.
00:15:50 Any issues with deliberating?
00:15:51 You're fine tomorrow.
00:15:54 Okay.
00:15:56 Second question that one of you asked, there were a couple of questions.
00:16:00 They both go to documents that were of interest.
00:16:04 So, folks,
00:16:06 The parties present written exhibits and documents as part of the case.
00:16:10 There are some documents that you may be curious about that you may not see.
00:16:14 There are a variety of reasons for that.
00:16:16 But the documents that are admissible that you're allowed to view by court rule, by law, by the parties selection, that's what you will get tomorrow when you go to deliberate.
00:16:28 You'll have copies of all the documents that are admitted as exhibits in the case.
00:16:33 don't speculate about what may be contained in documents that you don't have in front of you so we can we can ask questions throughout this process I appreciate them shows you're all engaged but there may be things that you wish you had that for a variety of different reasons we simply don't have for you so with that we're going to pick back up with mr. Elliott's testimony mr. Elliott if you want to come forward
00:17:03 Sir, I'll just remind you, you're still under oath.
00:17:11 You understand you're still under oath?
00:17:12 I do.
00:17:13 Okay, thank you.
00:17:13 Have a seat.
00:17:18 Mr. Brzezinski, you may continue when you're ready.
00:17:21 Thank you.
00:17:28 Make yourself comfortable, Mr. Chairman.
00:17:29 I'm not close enough.
00:17:32 You have a glass of water?
00:17:33 You're all set?
00:17:34 I'm good.
00:17:34 All right.
00:17:36 So on Friday, we ended with the last question where you agreed that there was not a single document received or proof of expense from you in 2020.
00:17:45 So I'd like to move on to a new topic.
00:17:49 You do have a cell phone, right?
00:17:51 I do.
00:17:52 And it's a smartphone.
00:17:53 It is.
00:17:55 And I know this because I've seen you use it in court.
00:17:59 That phone has reception at Dan Creek?
00:18:02 It does.
00:18:03 And I understand there is internet reception at Dan Creek.
00:18:06 There is.
00:18:09 And I believe that even today we're going to have some people testify by Zoom from Dan Creek, right?
00:18:15 Yes.
00:18:17 One of them has a new Starlink.
00:18:18 We're going to try that out.
00:18:20 And therefore, somebody's got a computer at Dan Creek?
00:18:22 Yes, they do.
00:18:26 And of course, we can agree that computers have a number of programs that keep track of things, right?
00:18:34 That's true.
00:18:35 And they can keep track of things like bills.
00:18:39 That's very true.
00:18:40 And receipts.
00:18:42 Yep.
00:18:42 And expenses.
00:18:44 Exactly.
00:18:44 And create spreadsheets.
00:18:48 Then we can also agree that your smartphone has a camera.
00:18:51 It does.
00:18:55 And you've taken a number of pictures with it.
00:18:58 I have taken a lot of pictures.
00:19:00 And of course, there's nothing stopping you from taking photos of receipts, invoices, or bills.
00:19:05 That's right.
00:19:08 And if I remember correctly, and please correct me if I'm wrong, Mr. Campion stated that you have an old-fashioned notebook.
00:19:17 I do.
00:19:19 And you keep that with you?
00:19:21 No, we're referring to the gold notebook that stays in my house.
00:19:28 And nothing stopss you from making notes, journal entries in that notebook?
00:19:33 No, and I do.
00:19:36 So nothing prevents you from keeping notes of your expenses?
00:19:41 No, I keep notes of my expenses.
00:19:50 So I don't think you're disputing that records can be easily kept at Dan Creek.
00:19:56 That's correct.
00:20:02 You just choose not to use those computer systems to keep track of records.
00:20:06 No, Mr. Brzezinski.
00:20:08 It's not needed.
00:20:09 I'm sorry?
00:20:10 It's not needed.
00:20:11 Okay.
00:20:14 And without exact records, and using your term anecdote, there's really no limit to how big or small an anecdotal fish can be, right?
00:20:26 There has to be a fish.
00:20:29 But not its size.
00:20:30 Not the size.
00:20:31 You're also a pilot, right?
00:20:33 I am a pilot.
00:20:34 And you, in fact, own a plane.
00:20:36 I do have a plane.
00:20:38 And you've been flying for five years.
00:20:41 I'm sorry?
00:20:41 And you've been flying for years.
00:20:44 Since 1982.
00:20:51 But you don't have the required FAA annual inspections.
00:20:55 Can you re-approach me?
00:20:56 You may.
00:20:56 Sure.
00:21:06 I think that's a live question about Mr. Elliott's certification as a pilot and the records related to that.
00:21:12 It's not a claim.
00:21:13 It's not a cause of action here.
00:21:14 I'm not seeking any reimbursement for any flights that Mr. Elliott provided either directly or indirectly to Mr. Kroenke or to RAS.
00:21:21 I think it's irrelevant.
00:21:23 It's prejudicial.
00:21:24 Mr. Brzezinski, why is it relevant?
00:21:27 One of our line items on the spreadsheet for expenses is for Mr. Kroenke's flights and reimbursement of his flights.
00:21:36 We ask for $24,000 for those flights.
00:21:38 In order to recover expenses, we have to prove that they are reasonable and necessary for this project.
00:21:47 Mr. Kroenke and Mr. Elliott have previously testified that at least once Mr. Elliott brought RIS employees out there
00:21:56 And so we need to prove why Mr. Kroenke incurred his own flight expenses when Mr. Elliott is apparently offering free ones.
00:22:08 And the reason that he wouldn't accept the free flights is because the plane isn't safe.
00:22:13 Any further, Mr. Campion?
00:22:14 All right.
00:22:16 So what you've argued about is Mr. Kroenke's expenses.
00:22:19 You've said nothing here about Mr. Elliott's expenses or Mr. Elliott's airplane
00:22:23 The testimony that you're listening here about Mr. Elliott's certification on his airplane, other than the fact that he provided perhaps a free flight, I don't think this line of questioning is relevant.
00:22:35 It's certainly more prejudicial than probative under Rule 403, so I'm going to exclude it.
00:22:40 Objection sustained.
00:22:42 May I add just one little bit?
00:22:44 Okay.
00:22:51 In the future, counsel, one person argues objections, okay?
00:22:54 I'll hear it.
00:23:01 The amount of flights that Mr. Kroenke incurred is directly related to the fact that Mr. Elliott is not legally allowed to fly a plane and allowed to transport people.
00:23:12 So we're going to have to show the jury why he had to fly out for a long time to put these people out, but Mr. Elliott hasn't testified that he could do it.
00:23:20 I don't want the jury to think that a necessary expense was just incurring additional costs and notice
00:23:29 But the argument hasn't been made that Mr. Elliott, um, that Mr. Kroenke did flights because Mr. Elliott was unable to do them.
00:23:42 That question came up, and as Mr. Elliott, as Mr. Kroenke started answering that he was not, that Mr. Elliott was not licensed, Mr. Kroenke was stopped, right?
00:23:52 So, and
00:23:53 But Mr. Elliott isn't making a claim for any expenses relating to flights.
00:23:56 You're making a claim for flights by Mr. Kroenke.
00:24:01 And you're saying that those are reasonable because Mr. Kroenke had to transport crew members.
00:24:08 While free services offered.
00:24:10 Free services weren't offered.
00:24:13 He did testify that he took an RS employee out there for free and needed free flights.
00:24:22 Are you arguing that Mr. Kroenke only incurred expenses because Mr. Elliott refused to provide free flights?
00:24:39 No, it's the opposite.
00:24:40 He offered to provide free flights, but he said he couldn't do it, and therefore it put Mr. Kroenke's personnel at great risk, and therefore Mr. Kroenke had to step in and do more flights.
00:24:50 Okay, alright, so my ruling stands.
00:24:52 Under 403, it's certainly more prejudicial than probative.
00:24:56 You're making the argument that Mr. Kroenke provided flights because Mr. Elliott was unable to do so, period.
00:25:03 That's a reasonable argument, but you don't need to get into why he couldn't provide the flights.
00:25:08 It's still more prejudicial than probative and I don't find it relevant.
00:25:36 Mr. Brzezinski, you may continue.
00:25:38 Thank you, sir.
00:25:42 Mr. Elliott, we can agree that both contracts called for expenses to be split evenly.
00:25:48 Is that correct?
00:25:53 Yeah, that's the language.
00:25:54 I have to say the intention was that we would each put up the same amount.
00:25:59 That's what that meant.
00:26:00 The language in the contract says that expenses would be split evenly.
00:26:03 Yeah, it would put up and he would put up.
00:26:05 That's what it meant.
00:26:08 But the language in the contract states clearly that expenses were to be split evenly.
00:26:13 That's correct.
00:26:14 Okay.
00:26:16 And the language in the contract also states that any recovered gold would be split evenly.
00:26:22 Is that correct?
00:26:22 That's correct.
00:26:23 Okay.
00:26:28 And then you would agree in opening
00:26:30 that Mr. Campion said nobody gets to keep half their gold, right?
00:26:36 I'm sorry?
00:26:37 Mr. Campion said in opening that no one, let's see if I can quote it correctly, no one gets half the gold.
00:26:45 He's referring to my relationship to people who work there.
00:26:49 That's correct.
00:26:50 They never keep half.
00:26:52 And you would agree that FUBAR only keeps 20% of their gold, right?
00:26:59 The first year.
00:27:00 And then you get 80% of their gold.
00:27:02 That's a normal arrangement, yeah.
00:27:04 Okay.
00:27:05 And just to be clear, so I'm not mumbling, that's 80%, right?
00:27:09 I keep 80%.
00:27:10 Okay.
00:27:13 So if Seth and Fubar could mine the same amount of gold from the same piece of land, you would get more gold from Fubar, wouldn't you?
00:27:24 Yes, no?
00:27:25 My expenses are much higher.
00:27:26 But you'll get more gold from FUBAR.
00:27:28 That's correct.
00:27:29 I have more risk.
00:27:30 And you get 80% from FUBAR.
00:27:32 Right.
00:27:32 For more risk.
00:27:33 Thank you.
00:27:38 Are you done?
00:27:38 Did that conclude your question?
00:27:40 I'm sorry, Judge.
00:27:40 I just had a very bad habit.
00:27:42 Yes, Your Honor.
00:27:43 I concluded my cross.
00:27:45 All right.
00:27:45 Thank you.
00:27:45 Mr. Campion, redirect.
00:27:47 Thank you.
00:27:47 Mr. Elliott, I'm going to start with what Mr. Brzezinski covered today, and then we'll go back to some of the things that were covered on Friday.
00:27:53 Okay.
00:27:53 Thank you.
00:27:59 I just want to touch briefly on what you started to say.
00:28:03 Could you describe to the jury why it is that you keep 80% of the gold recovered, or why you kept 80% of the gold recovered from FUBAR in 2020?
00:28:12 Why you set it up that way?
00:28:15 These people are providing labor only.
00:28:19 They have to bring their own housing, they'll live in tents or whatever, and they bring their own food, comes in on an airplane.
00:28:26 every other expense all the machines all the planning the years of accumulation of spare parts the fuel i have to pay for cash in may they don't have any risk they just show up and they work they also keep one option when they work for as as labor they can quit at any time with a contract and they became contractors later the same company they're not allowed to quit we had a fixed amount which amounts to i roughly i roughly get 15
00:28:55 It didn't work out exactly right, but now they are working today.
00:28:58 I was out this weekend.
00:28:59 I have no risk.
00:29:00 They're running their equipment.
00:29:01 They fix everything.
00:29:02 They give me a royalty, basically 15%.
00:29:16 But all of the other arrangements I had with people, they came out.
00:29:19 Any of you would come out and work for me.
00:29:20 It's somewhere between 1% and 20% for your labor.
00:29:24 But you don't have to worry about buying parts or anything like that.
00:29:27 You don't have to worry about supplying things.
00:29:29 That would be my responsibility, including the flying that I do for the mine.
00:29:35 I don't fly you or your guests or your food or anything.
00:29:38 It's all on you.
00:29:39 There's a commercial operator that does that.
00:29:42 I only flew for my own purposes.
00:29:45 All right, Mr. Elliott.
00:29:45 Okay, sorry.
00:29:46 So let me go back to the testimony on Friday.
00:29:56 There's been a lot of testimony during this trial about what testing means versus mining.
00:30:02 Could you describe to the jury what the difference is between those two terms in your mind?
00:30:08 When you're doing an evaluation or testing, and Mr. Rutherford alluded to this, he's tested 10,000.
00:30:17 Just so the jury understands the question I asked,
00:30:40 I believe you were beginning to answer about Mr. Rutherford's testimony last week but what I asked you was could you describe the difference between testing versus mining and I think within the definition of testing we've heard testimony about the use of the term exploring or exploration and valuation so I guess do you see those words like are they all the same or if they're not let me know what the differences are these are description words for a level
00:31:09 of intensity and experience.
00:31:12 You can be exploring with, you know, the old picture of the burrow and a steel pan and a shovel and not know anything about mining.
00:31:18 You're exploring.
00:31:20 When you're testing, somebody that's exploring found gold and now they want to see how much might be there
00:31:26 There are three methods.
00:31:28 You can do open pit.
00:31:30 They dig a hole and they wash that.
00:31:32 You can use a pan again if it's rich enough.
00:31:34 You'll test little spots.
00:31:36 But now you know there's gold in the area.
00:31:38 You're focused on that as opposed to just, you know, we could go outside and test with a pan in the street.
00:31:44 But if you went to Dan Creek, there's gold there.
00:31:46 You're going to really be serious.
00:31:47 So you might take a little backpack dredge or, you know, a tent you're going to spend a week or so.
00:31:53 Evaluation is very expensive depending on what.
00:31:57 If it's hard rock, they have to drill.
00:31:58 It takes years.
00:32:00 Iliadma, they famously have drilled 40 years there.
00:32:03 They're still not done.
00:32:05 Dancric is a small placer.
00:32:06 You would, for a test there, you would take a machine small enough to dig up, say, five yards of gravel, wash it, and you see how much gold you have.
00:32:14 That's an evaluation.
00:32:15 But you're moving constantly.
00:32:17 You're not interested in just making money.
00:32:19 When you go mining, you've determined there's enough ground there
00:32:23 that you could invest $10,000, $15,000 for the first day to put the plant, bring the water pump, put the fuel together, get the guys there, the big excavators, and you're expecting to get that $15,000 back in a week or some reasonable amount of time.
00:32:39 That's mining.
00:32:39 You're mining because you want to make a profit.
00:32:41 Evaluation is just to find out if it's worth mining for a profit.
00:32:47 Mr. Elliott, during the summer of 2020
00:32:52 Once the blue plant was set up down on that trench, and if the jury may remember, there was exhibits B and C. There's the left trench and the right trench.
00:33:01 Once that blue plant was set up there, what type of personnel would have been necessary for Mr. Kroenke's crew to effectively mine in that location?
00:33:11 You have to have an exceptionally gifted excavator operator in the trench.
00:33:17 This was Frank.
00:33:19 Very, very good at it.
00:33:20 There's a lot going on down there.
00:33:22 You can fall in.
00:33:23 You have to take the right material.
00:33:24 You can't put big rocks in the truck.
00:33:27 Then you need a truck driver.
00:33:29 He has to drive up and dump in front of the plant, the blue plant.
00:33:33 And there has to be someone on an excavator at the blue plant putting gravel in continuously.
00:33:38 You want to feed that plant as evenly as you can, almost like a conveyor.
00:33:41 If you put in too much,
00:33:44 It overloads the sluice box.
00:33:45 If you put in too little, the water blows the gold out of the sluice box.
00:33:48 You don't ever want to let it run with no gravel.
00:33:51 So you can't have that person do anything else.
00:33:54 We call it feeding the baby.
00:33:56 If you've ever had babies, you know, you've got to feed them regular.
00:33:59 And if you don't, they fuss.
00:34:00 And if you don't, if you feed them too much, they spit it out.
00:34:03 So that's what we call it.
00:34:06 So what you've described is a crew of three people
00:34:11 3 is minimum, and you need a fourth guy that's the mechanic who just continually tunes it.
00:34:23 Mr. Brzezinski asked you a lot of questions about whether or not you believe that the work that Mr. Frank Martin, in particular, but also Mr. Travis Turnbull, whether that work that they did benefited the Dan Creek property
00:34:38 And you began to describe that when you were asked about the dikes in particular, you described that it was like a seatbelt.
00:34:43 Could you explain to the jury what you mean by that?
00:34:46 We built one dike.
00:34:47 I don't know where the plural came from, but one.
00:34:51 I showed you from the video that Dan Creek was running very close to where they were mining.
00:34:56 It's also elevation was higher.
00:34:58 And the problem is that it can cut the bank and go into the hole that we just dug.
00:35:03 It takes us probably two or three months to completely excavate the trench that you saw.
00:35:07 We don't have big equipment.
00:35:09 The processing is slow.
00:35:11 In that entire period we go from June until say August or September.
00:35:17 It rains up in the valley up there.
00:35:19 Dancrete can come up a couple of feet in just a matter of minutes.
00:35:21 It's a high velocity stream, very dangerous.
00:35:25 And here we are below the grade.
00:35:27 It's come in twice before and we spent
00:35:31 2 days fighting it trying to keep it from flooding out our works and one time we didn't get that done and it buried that big excavated big red and white one right up to the top of the CAD took 15 minutes and then we had to re excavate the whole thing and I lost the use of that machine for over a year so that had happened to me seven or eight years before
00:35:52 And they're down in there.
00:35:53 They're all trenching.
00:35:54 None of them has any experience.
00:35:55 Not FUBAR, not RAS None of them knew one single thing about the flood and how that happens and how fast it happens.
00:36:03 And I was adamant I'm not going to lose any more equipment and I definitely don't want anybody down in there.
00:36:08 So we had a chance to retain that wall.
00:36:10 We dug a trench.
00:36:11 We had all the rocks there.
00:36:13 And that was what I was doing at the time.
00:36:16 But they wanted to go and test and they wanted to do their thing.
00:36:18 They'd strip that out in May when there's no flood danger.
00:36:22 And we were in June, first part of June.
00:36:24 At that point, I insisted.
00:36:28 Frank helped.
00:36:29 He made the top of that correct.
00:36:31 But I had six other people working.
00:36:33 I loaded the rocks myself on the other end.
00:36:35 It's very difficult to do.
00:36:36 They're big and they're dangerous.
00:36:38 I had two drivers and two marookas full-time.
00:36:41 And we had a fourth person adding, we needed debris, I can't explain this, but we needed wood and things to put in there so it's not just rocks.
00:36:50 So that day, and we spent one day, and for me it was peace of mind.
00:36:55 I'm not going to wake up with the stuff flooded and everybody saying, oh, we just didn't know that would happen.
00:37:01 This is the responsibility.
00:37:02 Why I get 80%, it's nerve-wracking to see people doing things that are super dangerous they don't even know.
00:37:08 They don't realize they're in danger.
00:37:11 and FUBAR has been out there five years they have fought the river three times now and it is 48 hours nobody sleeps and I'm even down there even though it's not my responsibility I just can't bear to see their entire works flooded again it's so expensive then they have to excavate all that gravel back out the next day it's heartbreaking Mr Elliott you were asked by Mr Brzezinski on Friday whether or not you gave instructions to Mr Kroenke's crew
00:37:37 And I think you testified that, especially in the beginning you did, and that it was two to three times a week.
00:37:42 What type of instructions were you giving to Mr. Kroenke's crew during the 2020 mining season?
00:37:48 They would ask me, for example, they'd never seen the gold plant running.
00:37:52 They'd never seen one.
00:37:53 And they said, so how do you set this up?
00:37:55 That's a basic question.
00:37:56 If I asked any of you, let's go mining.
00:37:59 I'd just set the plan up over there.
00:38:01 Your first question would be, well,
00:38:04 How do you do that?
00:38:05 So I showed them.
00:38:06 We built a pad.
00:38:07 We put the blue plant up.
00:38:08 The sluice box has to go here.
00:38:10 Your aluminum line goes here.
00:38:11 You can't drive on that.
00:38:12 And you don't want your tails coming back, washing in to your, you have a pit with the good pay and the tails here.
00:38:19 They're both wet and they're both moving.
00:38:21 So it has to be a divider of rocks in between so they don't blend.
00:38:24 You don't want to run the same stuff over.
00:38:26 That's what we did.
00:38:27 And then, in Travis's case, he's a phenomenal fabricator.
00:38:31 I don't know how to explain it.
00:38:32 He's an artist.
00:38:34 I said, you know, we need a sluice box underneath of the screen and it has to be shaped this way and that way and it should probably be 18 inches wide and the sides probably 6 inches.
00:38:42 That's the experience that you want.
00:38:44 I was working from what I'd done before.
00:38:48 My intention was that they not waste time finding out that, oh, if you put the plant here, the tails wash into the front end.
00:38:55 I just wanted it to go faster.
00:38:56 We couldn't recover our money unless that plant ran.
00:38:59 I had no way to get the $50,000 back.
00:39:02 Let me ask you the next question.
00:39:05 Mr. Brzezinski asked you about some contracts that you had with the Dallas Mining Brothers and then the subsequent contract you had with Joe Ward, who's one of the
00:39:17 TEAM MEMBERS OF THE FUBAR TEAM.
00:39:18 AND DO YOU RECALL THAT YOU TESTIFIED THAT THESE WERE 15-PAGE CONTRACTS?
00:39:22 THEY MAY HAVE BEEN THAT LONG.
00:39:23 I DON'T KNOW.
00:39:24 A LOT OF PAGES.
00:39:25 WERE YOU INVOLVED IN DRAFTING THOSE CONTRACTS?
00:39:27 I DON'T DRAFT CONTRACTS EVER.
00:39:30 I WANT TO END HERE.
00:39:31 IN 2020, THE CONTRACT THAT YOU HAD WITH MR. KROENKE WAS TO DEVELOP AN EXIT STRATEGY FOR YOU.
00:39:37 THAT'S RIGHT.
00:39:38 AND WAS IT YOUR INTENT IN 2020 TO TRY TO SELL THE MINE?
00:39:42 YES.
00:39:43 AND WERE YOU WILLING TO SELL IT TO MR. KROENKE?
00:39:46 And is it still your intent to try to sell the mine?
00:39:48 It still is.
00:39:55 Just a moment, please.
00:39:58 Those are my questions for Mr. Elliott.
00:39:59 Thank you.
00:40:00 All right.
00:40:00 Thank you, Mr. Elliott.
00:40:01 You can step down.
00:40:02 Thank you.
00:40:10 Sir Campion, what's next?
00:40:12 So this went faster than I anticipated.
00:40:14 My next witness, I told her to be available at 10.
00:40:16 I'm going to ask for a short break to contact her, make sure she can log into the Zoom.
00:40:20 Once that's done, I'll let the court know so that we're not waiting for her to log in while the jury's here.
00:40:24 So I should go pretty fast.
00:40:25 I should be able to contact her right away.
00:40:27 So ladies and gentlemen, we're going to take another short break, but let me explain.
00:40:31 So our next couple of witnesses are going to be appearing
00:40:36 from Dan Creek our hope is that with modern technologies as we've all learned we're going to do it by zoom we'll put them up on the video screen it may take us a little while just to make sure that we've got everything set up right so that it runs smoothly so we'll give you a break and come get you as soon as we're ready probably going to be 15 20 minutes at least I would guess so
00:41:32 You may, but I just got a note from one of the jurors, so let me deal with that and then you can decide.
00:41:38 The question is, do purchaseses for Dan Creek mine i.e.
00:41:42 fuel, materials, and goods get written off on taxes?
00:41:48 If so, how are they documented and reported?
00:41:52 Must be an accountant.
00:41:56 Anybody want to be heard on the question?
00:42:07 Mr. Brzezinski?
00:42:08 MR. No, sir.
00:42:08 MR. Anybody want me to get it – well, are we likely to have information that's going to answer that question?
00:42:17 MR. No.
00:42:19 Not at this stage.
00:42:21 MR. Okay.
00:42:21 MR. I mean, I guess you could take that under advisement if Mr. Brzezinski want – I don't know what he wants to do, but if Mr. Elliott wanted it to be recalled, we could certainly address that question.
00:42:31 I'm not opposed to that, but I'm also not advocating for it.
00:42:33 MR. I'm not advocating for that either.
00:42:36 MR. Okay.
00:42:38 Okay.
00:42:38 If nobody is advocating for me to have this question asked of a specific witness, then I'm going to set it aside and I think it's a curiosity as much as anything.
00:42:50 It probably could apply to both sides, quite frankly, and maybe nobody wants to wander into that.
00:42:56 So I'll leave it there.
00:42:58 Thank you.
00:42:58 Thank you, sir.
00:42:59 All right.
00:42:59 We'll be off record.