07/15 09:43
00:00:00 All right, folks, we are back on record on the Kroenke v Treasure Chest matter 3 a.m.
00:00:13 20-0862 Civil Parties and Council are present.
00:00:16 Looks like we have a witness present on Zoom also.
00:00:21 Can you hear me okay?
00:00:24 And you're on mute.
00:00:26 So
00:00:31 That's much better.
00:00:32 Thank you so much.
00:00:33 Okay.
00:00:34 All right.
00:00:34 So I'm going to go ahead and let you go ahead and mute yourself again.
00:00:38 Let me just finish up just making sure we're set to go with the lawyers and then we'll bring the jury back in.
00:00:44 Mr. Campion, any issues?
00:00:47 No, thank you.
00:00:48 And we're all set.
00:00:49 Mr. Bedinger on share screen.
00:00:52 Could I try once?
00:00:54 Let's do that now.
00:00:54 I think would be a good idea.
00:00:56 Thank you.
00:00:56 Here we go.
00:00:57 Ms.
00:00:57 Luna.
00:01:00 Do you see a long list of PDFs, Ms.
00:01:04 Luna?
00:01:06 Yes, I do.
00:01:07 Great.
00:01:08 Thank you.
00:01:11 All right.
00:01:11 And let me make sure that I'm clear on what you intend to do when it comes time for CROSS so that we're squaring this away before the jury comes in.
00:01:19 So you're talking about CROSS with potential exhibits that are on Sheriff's Green.
00:01:24 Are these admitted exhibits?
00:01:26 Any issue over exhibits that we anticipate?
00:01:29 The only exhibit that we'd be using is her transcript of her deposition.
00:01:31 Okay.
00:01:33 And that would be, if necessary, because of an inconsistent statement.
00:01:37 That's correct, sir.
00:01:38 Hopefully, we won't have to use that at all, sir.
00:01:40 Okay.
00:01:41 All right.
00:01:43 Sounds like we're ready to go then.
00:01:44 Yes.
00:01:45 Do you want to get the jury?
00:01:48 And this is Ms.
00:01:49 Luna that's on Zoom.
00:01:51 Yes, Your Honor.
00:01:53 So I'll get you sworn in here in a moment when we get the jury back in front of you, okay?
00:01:57 Just sit tight.
00:01:58 Your Honor, since we can't see what's going around Ms.
00:02:09 Luna, maybe you could ask Ms.
00:02:10 Luna just to take a video of the room to make sure she's alone and there's no props or a big board telling her what to say or what not to say.
00:02:23 All right.
00:02:31 Thank you, Ms.
00:02:32 Luna.
00:02:32 Thank you.
00:02:35 Satisfied, Mr. Brzezinski?
00:02:36 I am.
00:02:38 And I would just counsel you all have been very nice about standing up each time because we've got you on video for her benefit.
00:02:45 Go ahead and stay seated when you're doing your questioning because that way you're visible on the screen as opposed to seeing your belt or something else.
00:02:54 I might fail at that.
00:02:56 It's just habit.
00:02:57 I understand, but I'm going to tell the jury that that's why I've got you sitting down for questioning.
00:03:29 Yeah, and I have to listen to my girlfriend speaking to me.
00:03:38 No, no, no.
00:03:38 Spent the night at the Airbnb three miles from our house.
00:03:43 This is where they'll share expenses.
00:03:44 If we had joint expenses, that would be a non-event.
00:04:10 There's the joys of Zoom.
00:04:39 I hear a familiar language in the background, Ms.
00:04:41 Luna.
00:04:43 I put her outside.
00:04:44 She doesn't like it.
00:04:48 No, she does not.
00:04:53 Well, we'd have to get an interpreter out and swear her in if she's going to stay.
00:04:56 Right, they're trying to get her now.
00:05:01 No worries.
00:05:04 We have all learned to be patient through the age of Zoom.
00:06:59 Welcome back, everybody.
00:07:00 Please have a seat.
00:07:06 All right, ladies and gentlemen, we have our next witness who is appearing by Zoom.
00:07:11 Mr. Campion, do you want to introduce your witness?
00:07:13 Yes, and I may remain seated?
00:07:15 You may.
00:07:15 Thank you.
00:07:17 The defense calls Raquel Luna as its next witness.
00:07:21 So, Ms.
00:07:22 Luna, I'm going to give you an oath, but before I do that, ladies and gentlemen of the jury, let me explain, because we have this on camera.
00:07:28 I have asked both lawyers to remain seated during questioning instead of standing up at the podium today, so that way everybody is seeing faces and not, you know, middle of the body and belts and things like that, so it'll be a little bit easier for everybody to manage.
00:07:44 So, Ms.
00:07:45 Luna, if you'd raise your right hand, I'm going to give you an oath.
00:07:49 Do you solemnly swear or affirm the testimony you're about to give before the court today will be the truth, the whole truth, and nothing but the truth?
00:07:55 Thank you.
00:07:57 Thank you.
00:07:57 You can put your hand down if you'd please tell us your name for the record.
00:08:02 Raquel Luna.
00:08:03 Can you spell that for me?
00:08:06 R-A-Q-U-E-L Luna, L-U-N-A.
00:08:11 Thank you, Ms.
00:08:11 Luna.
00:08:12 And for the record, where are you located today?
00:08:15 Dan Creek, Alaska.
00:08:16 All right.
00:08:17 Thank you.
00:08:17 Mr. Campion, go ahead.
00:08:20 Thank you, Ms.
00:08:21 Luna.
00:08:22 Good morning.
00:08:23 Good morning.
00:08:25 During this trial, the jury has heard significant testimony about the FUBAR crew.
00:08:30 Could you tell us what the FUBAR crew is and where that name came from?
00:08:32 The FUBAR crew is me and my business partner, Charlie Armstrong, and my son, Joseph Ford, and our family and friends.
00:08:45 FUBAR came from Charles Armstrong, my business partner,
00:08:49 He had it for years as a diesel mechanic and we were married at one time and we were divorced in 2015 and we opened up the mechanic business together and that's where the name came from.
00:09:03 Could you describe to the jury how you first got involved with the Dan Creek operation of Mr. Elliott in 2019?
00:09:11 Charles Armstrong came up here to do some mechanic work with Josh Merrick
00:09:18 and that's how he was introduced to Randy and that same summer I was introduced to Randy and came up to help Charlie and learn how to do some gold mining.
00:09:31 Had you or Charlie Armstrong ever done any gold mining before 2019?
00:09:34 No.
00:09:39 What type of work was Charlie Armstrong doing for Mr. Elliott in the summer of 2019?
00:09:45 Mechanic work at the time.
00:09:50 And were you able to do some gold mining at the end of the 2019 season at Dan Creek?
00:09:57 Yes.
00:09:58 Did you make a decision along with Mr. Armstrong and Mr. Ward to return for the 2020 mining season?
00:10:06 Yes.
00:10:07 Could you tell the jury what your arrangement with Mr. Elliott was for the 2020 season?
00:10:13 We worked for Randy.
00:10:15 He taught us how to find the gold, what dirt to look for,
00:10:27 Mr. Elliott testified that you and your team provided labor in 2020.
00:10:31 Is that accurate?
00:10:33 Correct.
00:10:35 What did Mr. Elliott provide to your team in the 2020 season?
00:10:40 All the equipment, the fuel, everything.
00:10:43 It all belonged to Randy.
00:10:47 Do you recall how much gold the FUBAR team recovered in the 2020 mining season?
00:10:54 If I remember correctly, it was somewhere around 650 ounces, thereabouts.
00:10:59 And what was the split between you and Mr. Elliott?
00:11:03 We received 20%.
00:11:08 We'll come back to the 2020 season, but I just want to ask, after the 2020 season, did you enter into a more formal contract with Mr. Elliott?
00:11:18 Yes, we did.
00:11:19 Have you continued to mine with your crew every summer since the 2020 season?
00:11:24 Yes, sir.
00:11:28 Could you tell the jury what your annual gold recovery has been since the 2020 season?
00:11:31 In 2021, it was around 750 ounces.
00:11:34 The following season was around 950 ounces.
00:11:35 And this last season was just under 1100 ounces.
00:11:49 In those seasons, what was the split between the FUBAR crew and Mr. Elliott for the goal that you just described you recovered?
00:11:56 We paid Randy, I want to say it was 250 ounces per season for our lease.
00:12:08 All right.
00:12:09 I want to go back to 2020.
00:12:12 The jury has been shown video evidence and photo evidence as well as testimony of two trenches that were dug along Dan Creek on the lower part of Mr. Elliott's claims.
00:12:23 Do you recall those trenches in 2020?
00:12:27 Now are you talking trenches as far as what he did to secure the pits or are you talking the pits themselves?
00:12:34 I'm talking the pits where each crew was mining.
00:12:37 Okay.
00:12:39 All right.
00:12:42 The jury was shown photographs of what I would call a left side, we could call it a trench or a pit, and then a right side trench or pit.
00:12:49 Do you recall those two separate pits?
00:12:53 Yes, we had one and Seth Kroenke's crew had one.
00:12:57 Which one did your team have?
00:12:59 We were the cross pit.
00:13:04 Seth Kroenke's crew had the pit that ran along with the river.
00:13:09 Okay, just so it's clear to the jury, you're describing that your pit was the one that was across, could we call it perpendicular to the river?
00:13:17 Yes.
00:13:18 And Mr. Kroenke's pit was the one that was parallel to the river?
00:13:22 Correct.
00:13:23 There's been testimony presented to the jury that your team mined in Mr. Kroenke's pit during the 2020 season.
00:13:31 Was that true?
00:13:33 No, it is not true.
00:13:34 Why are you so sure?
00:13:36 Because I was the lead excavator Randy taught me how to be the lead excavator and load the trucks and pull the pay and I would be down in our pit at the far end and Frank who was on Seth's crew was next to me pulling dirt going up the canyon for his crew Was there ever a time that you or your team mined in what you described as Seth's pit in 2020?
00:14:03 No sir
00:14:09 Do you recall the blue plant?
00:14:12 Yes, sir.
00:14:13 Was there a point in the 2020 season that you and your team basically took over that plant?
00:14:20 Yes, sir.
00:14:21 What do you recall about that?
00:14:24 After Seth Kroenke's team left and they pulled out of Dan Creek, removed all their equipment and everything off of Randy's property, Randy told us we could use the blue plant
00:14:37 because we were using a much smaller plant than that one and he said we could now use their plant as well because they were gone they had left the grounds and we started working on it we spent 10 days modifying it and working on it and then we started using it when you say we were working on it who was involved in working on that plant me and Charles Armstrong
00:15:03 And could you describe again for the jury, what is your background and Mr. Armstrong's background as it relates to fixing something like a plant?
00:15:12 Mr. Armstrong is a very good welder.
00:15:15 He's been welding since he was 12 years old and he's been doing mechanics.
00:15:20 Started out at Kenworth, Alaska when he was 14.
00:15:22 So we pretty much had cut the deck off where the rocks hit the platform.
00:15:32 had to do some welding put some more braces in it because they shake so it needed some sturdiness done to it and I helped him in that process and lining the grates and everything with rubber to keep the rocks from damaging the plant so much and were you able to get it running after those 10 days yes sir all right I want to talk a little bit about the size of your crew in particular in the 2020 season how many people were working with you and Mr Armstrong
00:16:01 in 2020 out at Dan Creek we had nine to ten people is what we use every season and what are generally your hours of operation during the season how many hours a day we work two 12-hour shifts it takes four to five people per shift the plant actually runs material for roughly 20 hours a day and the other four is clean out and maintenance on the equipment
00:16:30 How many days a week does your crew normally run those 24-hour operations?
00:16:35 We run seven days a week.
00:16:37 We take off the 4th of July and we take off Labor Day.
00:16:41 And if equipment breaks down to where we can't mind, we get a day off.
00:16:44 But other than that, we run seven days a week, 24 hours a day.
00:16:48 And in the 2020 season, were you using Mr. Elliott's equipment to operate?
00:16:55 Yes, we were.
00:16:57 You've described the size of your crew and the hours of operation.
00:17:03 Roughly what are your annual expenses to operate?
00:17:05 What were they in particular out at Dan Creek?
00:17:10 This year alone our fuel bill is 120 ounces which is roughly $240,000 give or take.
00:17:18 This year alone in just food and freight to get our freight here we roughly have $30,000
00:17:28 In the 2020 season, were you able to observe the operations of Mr. Kroenke's crew, also known as the RAS crew?
00:17:52 Yes, sir.
00:17:53 Do you recall roughly what their operations were, particularly in comparison to the 24-hour operations you've described?
00:18:02 They didn't work the hours that we worked.
00:18:05 What do you mean by that, Ms.
00:18:06 Luna?
00:18:10 Some days they would be out there and put in an eight-hour day for like a week, and then they would take off and they wouldn't be doing anything.
00:18:18 Sometimes they would put in a couple of hours.
00:18:22 The longest time I ever seen them wash material through that wash plant was four hours.
00:18:29 Which individuals do you recall being out at Dan Creek in the 2020 season?
00:18:34 There was Frank, there was Travis, there was Travis' son Blake, and then they had a carpenter, but I don't recall his name.
00:18:45 Do you recall a time when Travis had to leave Dan Creek for a medical reason?
00:18:50 Yes, I do.
00:18:51 What happened with his son when Travis had to leave?
00:18:55 He was left here.
00:18:57 Meaning left at Dan Creek?
00:18:59 Yes, sir.
00:19:00 Did you look after him?
00:19:03 I didn't know, sir.
00:19:04 Who did?
00:19:06 My son kept an eye on him, but he hung out.
00:19:09 But that was it.
00:19:13 When Mr Cranky and his team left Dan Creek, did you purchase anything from him or from his team?
00:19:21 Yes, I did.
00:19:22 What is it that you purchased?
00:19:24 I purchased their Connex box and all their supplies to do with the gold cleaning, the sink they had set up, the shower they had set up, the plumbing pieces, everything in that aspect of mining, what they were using.
00:19:41 And then my son purchased their 600 Polaris.
00:19:46 Was that while you were still mining in the 2020 season?
00:19:47 Yes, sir.
00:19:53 The last thing I want to ask you about has to do with what we were talking about earlier, the perpendicular and parallel trenches that you described to the jury.
00:20:01 Do you remember some effort made to reinforce, whether you call it a berm or a dike, along the creek that summer?
00:20:10 Yes, sir.
00:20:11 Could you describe to the jury what was involved with that from your perspective?
00:20:16 Randy had explained to us that because we were going into the river and the river likes to flood
00:20:23 which I had experienced with Randy we started hauling the bigger rocks that we were pulling up out of our pit and started lining them along the river's edge just a few feet away because Randy said we needed to build that wall to help keep the river from coming over into our pits and flicking us out so when Raz's team was there Frank had experience with reclamation so we all started made a group effort
00:20:52 their trucks are Randy trucks randy's excavators and loader and we started hauling rocks and they dug a trench and we started throwing all the rocks into a trench along the river so we wouldn't get flooded out raz wouldn't get flooded out and we wouldn't get flooded out and then once we had it all full of rocks frank went over it and cleaned it all up and made it look like it was natural and then randy proceeded to
00:21:20 Frank was in an excavator
00:21:50 Blake was in the dump truck the Travis and was in a dump truck and my team my son me you know we were all together working as one team to get this wall built to secure safety for everybody do you recall how long it took to get that work done a couple of days all right
00:22:20 Those are my questions for you, Ms.
00:22:21 Luna.
00:22:21 At this time, I'll pass you to Mr. Brzezinski.
00:22:23 He's on the screen.
00:22:24 He's adjusting his glasses right now, and then he'll have questions for you, and then I'll have an opportunity to ask a few follow-up, okay?
00:22:30 Okay.
00:22:31 Thank you, Mr. Campion.
00:22:32 Mr. Brzezinski, cross.
00:22:33 Just one second, Your Honor.
00:22:43 Ms.
00:22:43 Luna, can you hear me?
00:22:46 Yes, I can.
00:22:47 And can you actually see me too?
00:22:50 Yes, sir.
00:22:52 I know we did this once before on video and once in person.
00:22:56 It's a little harder.
00:22:58 If at any time you can't hear me, just go ahead and wave or do something to catch my attention.
00:23:04 Okay.
00:23:06 So I understand that you started your gold mining adventure in 2019.
00:23:12 With Randy.
00:23:15 Yes, sir.
00:23:17 And before 2019, you didn't have any gold mining experience, right?
00:23:23 No, sir.
00:23:26 And you're not a heavy equipment operator by trade, right?
00:23:30 No, sir.
00:23:31 I'm a mechanic and a truck driver and equipment operator.
00:23:37 And it's safe to say you've gotten pretty good at gold mining.
00:23:41 Yes, sir.
00:23:42 You've gotten to be quite successful.
00:23:45 Yes, sir.
00:23:47 So, if I understood your testimony correctly, and if I didn't, please correct me.
00:23:54 You pulled out 750 ounces, and then 950, and then 1100.
00:23:58 Yes, sir.
00:24:02 I think the last time we spoke, you were hoping for 1500.
00:24:04 So it was a little bit less than you hoped for.
00:24:07 Yes, sir.
00:24:08 What went wrong?
00:24:10 Just the ground.
00:24:12 You can't determine what's there.
00:24:14 You could be in one spot one day and hit a nice little honey hole or something and come out with 20 ounces in that shift, and some days, like now, we're getting three to four.
00:24:26 Okay.
00:24:29 Now, last time we spoke, I believe you told me it cost you about $300,000 a year to run your operation?
00:24:35 Yes, sir.
00:24:38 And you don't pay yourself a wage, right?
00:24:41 nope i take what i need to pay our bills so does my son and so does charles and you've got your own equipment out there right yes sir we have bought and purchased equipment what kind of equipment do you have out there we have 450 excavators 400 excavators a 580 link belt the 200 hatachi we have a deuce on we have two rock trucks
00:25:11 We have some marocas.
00:25:12 And would it be fair that that investment's about $750,000 or a little bit more?
00:25:22 I would say it's close, maybe a little bit more.
00:25:24 Okay.
00:25:26 So it's north of $750,000.
00:25:31 I would say less than $750,000 if you counted everything we've bought in the last three years.
00:25:36 It's close to right around $750,000.
00:25:43 So, since you own all this, you don't have to rent any equipment, right?
00:25:48 No, sir.
00:25:52 And I imagine that there's really no other reason for you to be a Dan Kree except to mine gold.
00:26:03 Correct.
00:26:03 That's not a vacation, is it?
00:26:06 Oh, I love it up here.
00:26:10 You're putting in 12-hour days, right?
00:26:13 Yes, sir.
00:26:14 And you're working seven days a week.
00:26:17 Yes, sir.
00:26:17 And that's hard work.
00:26:20 It's hard, but not hard.
00:26:23 I worked harder at home in the mechanic shop than I do here.
00:26:26 Okay.
00:26:28 And you're the one who keeps track of all the expenses for FUBAR?
00:26:34 Yes, sir.
00:26:35 Okay.
00:26:36 And I think you also pay the bills?
00:26:39 Yes, sir.
00:26:41 And you keep track of your goal, right?
00:26:44 Yes, sir.
00:26:46 And I imagine that you are pretty accurate in what you spend and what you take in.
00:26:53 I try to be.
00:26:55 Everybody makes mistakes.
00:26:58 But you wouldn't be off by, I don't know, a couple hundred ounces?
00:27:03 I don't think so.
00:27:07 That's a big number, isn't it?
00:27:10 Yeah.
00:27:19 And you testified that in 2020, your split with Mr. Elliott was you kept 20 and he got 80.
00:27:25 That's right?
00:27:27 Yes, we got 20%.
00:27:28 Okay.
00:27:30 And I believe previously you testified that during the 2020 season, Seth's crew didn't interfere with you in any way, right?
00:27:41 No, sir.
00:27:42 They had their own crew, their own spot to mine, and we had ours.
00:27:47 And you guys were
00:27:49 About 300 yards apart?
00:27:54 Yeah, give or take.
00:27:57 If that hard.
00:28:00 And since you're working 12-hour days, you're not spending a lot of time socializing and looking at anybody else.
00:28:08 Well, it depends.
00:28:10 If I'm in the lead excavator, I made eye contact with Frank because Frank was digging their pay.
00:28:15 If my son was in the lead excavator, I was up at camp.
00:28:18 Okay.
00:28:22 And was your testimony that you took over the blue plant, or as it's known, Big Blue, right around August, right, of 2020?
00:28:32 Correct.
00:28:36 And you used that for a couple years, right?
00:28:40 We used it up until two years ago.
00:28:44 I couldn't hear you.
00:28:45 Could you repeat that?
00:28:47 We used the blue plant up until two years ago.
00:28:51 So you used it through the 2022 season?
00:28:54 Yes, sir.
00:28:56 And then you bought a fancy new one.
00:29:00 Yes, we did.
00:29:01 And what did the fancy new one cost you?
00:29:05 It wasn't just the plant.
00:29:07 It was also an excavator.
00:29:08 It was also a generator, water pump, dump truck, and extra screens for the plant.
00:29:14 And everything was roughly $325,000.
00:29:20 So out of that three and a quarter, how much was the plant?
00:29:26 I'm not sure exactly because we bought it as a package deal.
00:29:42 And you bought this in 2022?
00:29:43 Yes, sir.
00:29:44 I want to say it was 22.
00:29:48 Okay.
00:29:50 So obviously, 2021 were successful years that you could afford a huge capital investment like this one.
00:29:58 We actually had a couple of months to pay, or a couple of years to pay him.
00:30:02 Okay.
00:30:02 So you're making payments on it?
00:30:05 We finished our last payment last year.
00:30:07 Okay.
00:30:09 So last year, so we're in 24, so you finished your last payment in 23.
00:30:14 Correct.
00:30:18 So you paid it off
00:30:19 between 22 and 23, so a year.
00:30:21 Yes, sir.
00:30:21 Okay.
00:30:21 Now
00:30:50 You said that you didn't mind that piece of land that Frank cleared in 2020, right?
00:30:59 No, sir.
00:30:59 But you did mind it next year.
00:31:03 Not the land that Frank cleared.
00:31:05 No, sir.
00:31:06 Randy started a pit with us at the end of his property where it meets another gentleman's piece of property.
00:31:14 We started our pit there in 20.
00:31:17 And again, they were crossed from us.
00:31:20 And then we started coming up the canyon after 20.
00:31:27 We did not touch their land at all until the following season when we started a new pit.
00:31:49 That's all I have for you.
00:31:50 Thank you for coming, Ms.
00:31:50 Luna, or thank you for making yourself available, I guess, electronically.
00:31:55 Thank you, Mr. Brzezinski.
00:31:56 Mr. Campion, any follow-up?
00:31:58 No questions, thank you, Your Honor.
00:32:00 All right, Ms.
00:32:01 Luna, that concludes your testimony.
00:32:02 We appreciate it.
00:32:03 Let me pause for a moment.
00:32:06 Counsel, I think you said the other witness by Zoom is also in the same building?
00:32:11 He's in the same location, so they're going to need to swap out.
00:32:14 Okay.
00:32:17 Go get Ron.
00:32:18 Is he close by?
00:32:18 Yeah, he's just right out the door in the other camper.
00:32:23 Okay.
00:32:26 I'll let you go do that.
00:32:27 Let me just double check with our jurors.
00:32:29 Anybody need a break?
00:32:31 Or we'll just roll right into the next one if everybody's content.
00:32:34 Thank you, Ms.
00:32:35 Luna.
00:32:35 If you could go get the next witness and send him over.
00:32:39 Thank you very much.
00:32:41 Thank you.
00:32:50 For the record, the defense calls Ron Whittem.
00:32:53 Ron Whittem?
00:32:53 Whittem, yes, sir.
00:32:54 Thank you.
00:33:25 Good morning, sir.
00:33:26 Is this Mr. Widom?
00:33:28 Yes, it is.
00:33:29 Good morning, sir.
00:33:29 My name is Judge Tom Matthews.
00:33:31 We're here in the courtroom in Anchorage.
00:33:33 You've been called as a witness in this case.
00:33:35 Are you ready to give us some testimony?
00:33:37 Yes, I am.
00:33:38 All right.
00:33:38 If you'll raise your right hand, sir, I'm going to give you an oath.
00:33:42 Do you solemnly swear or affirm the testimony you're about to give before the court today will be the truth, the whole truth, and nothing but the truth?
00:33:50 I do.
00:33:50 Thank you.
00:33:51 You can put your hand down.
00:33:52 If you'd please tell us your name for the record and spell first and last.
00:33:57 I'm Ron Whittem Jr.
00:33:59 So it's R-O-N-W-H-I-T-T-O-M Jr.
00:34:05 J-R.
00:34:06 Thank you, Mr. Whittem.
00:34:07 And for the record, where are you located today?
00:34:10 I'm in Dan Creek, Alaska.
00:34:12 Very good.
00:34:13 Thank you.
00:34:13 Mr. Campion's going to ask you some questions.
00:34:15 Then Mr. Brzezinski may have some questions for you as well.
00:34:18 Mr. Campion, go ahead.
00:34:20 Good morning, Mr. Whittem.
00:34:20 Can you hear me okay?
00:34:25 Can you tell us a little bit about your background?
00:34:30 I've worked my whole life.
00:34:31 I've worked since I was 13.
00:34:32 I'm a heavy equipment operator.
00:34:35 I'm a landlord.
00:34:37 I've worked in every industry.
00:34:39 That's all I've ever done in my life is work.
00:34:42 I'm a heavy equipment operator, heavy equipment mechanic.
00:34:46 Lived in the bush my whole life.
00:34:47 Lived in Bethel for 28 years.
00:34:49 I'm just kind of a bush guy.
00:34:52 How long have you been out at Dan Creek?
00:34:56 About 10 years.
00:34:57 About 10 years.
00:34:59 How did you first get involved with either mining out at Diane Creek or owning property out there?
00:35:09 Mr. Elliott and I have a mutual friend, and our mutual friend said we should meet each other because we kind of had the same interests.
00:35:16 And I met Mr. Elliott in Fairbanks 10 years ago, and we just hit it off.
00:35:21 We're just best friends from the beginning.
00:35:25 And he said, why don't you come on out here and take a look at this?
00:35:28 And I'm always up for an adventure.
00:35:30 So I started coming out here and visiting a week at a time.
00:35:33 And then it looked like I could buy property out here.
00:35:36 So that's what I did.
00:35:38 When did you buy property, Mr. Woodham, out in Dan Creek?
00:35:44 Probably, I'm going to guess now, five or six years.
00:35:49 We bought a 70-acre tract.
00:35:53 down here in a subdivision, so the subdivision that joins the real estate that Mr. Elliott owns.
00:36:00 And then since then, we bought another 50 acres in the subdivision.
00:36:06 And have you had a gold mining operation of your own since you've owned property out at Dan Creek?
00:36:13 Yes.
00:36:13 We tried to mine the 70 acres, the floodplain down here on our tract A, and it's
00:36:23 It appears to be deeper than we can mine.
00:36:27 So we have had various leases with Mr. Elliott over the last five years up on his real estate.
00:36:37 So we lease property from Mr. Elliott.
00:36:40 And then do you pay him a percentage of the gold that you recover as a payment for the lease?
00:36:44 Is that how it works?
00:36:47 Yes, up until a couple of years ago, now we make a yearly fee and a percentage.
00:36:57 Roughly, what have been the sizes of the crews that you've run for gold mining at Dan Creek in the five or six years you've operated?
00:37:06 We've kind of lean and mean, so there's been three of us, and then we had a crew here two years ago of six.
00:37:16 When you have a crew of three, roughly what are your operating expenses annually?
00:37:25 In my deposition, I told everybody and I tell everybody that if you're going to mine in Dan Creek, you need to have about $250,000 to come out here and mine.
00:37:35 But we're buying newer equipment, we're buying parts for the equipment, we do a lot of maintenance on our equipment, we maintain everything that we own.
00:37:45 we have multiple vehicles and multiple side-by-side multiple multiple pieces of equipment so we buy and I'm a maintenance guy so you know we like to keep everything top-notch but if I'm minus out if I take out the capital expenditures we're building the house out here on a I guess we got the camera turned around backwards but there's a kitchen right in front of me a stainless steel kitchen in front of me so if I backed out those expenses
00:38:16 With three people, it averages around $50,000.
00:38:20 That includes fuel.
00:38:22 That includes expendable parts, oil, grease, filters that only last for one season.
00:38:31 So about $50,000.
00:38:34 I want to direct your attention to the 2020 mining season, all right?
00:38:38 Okay.
00:38:40 Were you present out at Dan Creek during the 2020 mining season?
00:38:45 Yes.
00:38:45 Were you there all summer?
00:38:50 Were you there intermittently?
00:38:50 How would you describe your presence out there?
00:38:56 We live out here in the summertime, so we showed up May 15th, as soon as we could land our airplane on the runway down here, May 15th, and more or less we probably left September 15th, September 30th, something like that.
00:39:08 About the first snowfall, we have to get out of here.
00:39:12 During that season, were you aware of and did you have the opportunity to observe Seth Kroenke's crew, sometimes referred to as the RAS crew, during the 2020 season?
00:39:23 Yes.
00:39:24 Yeah, they were working on the floodplain and we were driving on the runway.
00:39:28 So, yeah, every day we went to work, we could see them.
00:39:31 We could look across, you know, a little bit nosy, so look across there and see that, you know, they were still here or they were still working or they still weren't or whatever.
00:39:39 Yeah.
00:39:39 And then at the end of the day, when we come back down from the valley, we're working up the valley from them, oh, half a mile, three-quarters of a mile, so every day we have to drive up and we have to drive back.
00:39:51 Do you recall Travis Turnbull as a member of the RASC crew?
00:39:56 Yes.
00:39:59 During that 2020 season, would you interact with or speak with Mr. Turnbull when you would see him?
00:40:06 Not every day, but, yeah, occasionally.
00:40:09 I've known Travis from Bethel.
00:40:11 I know his parents from Bethel.
00:40:13 I know his grandparents from Bethel.
00:40:14 So when I heard Travis was coming out, I thought, oh, that's somebody that I know.
00:40:19 Do you recall a time when you went by the rest camp to borrow a mat?
00:40:26 Yes.
00:40:27 We were doing a cleanup, and the cleanup mat that we had was damaged.
00:40:35 And we didn't have a spare.
00:40:38 On my way back down from our mine, I thought, well, I just, you know, the raft crew, Travis, may have something that we could borrow.
00:40:46 And if he didn't, then we just stopped over at the Kelly crew.
00:40:49 I think you were talking to them earlier today.
00:40:52 But Travis was the first camp that I drove by, so I pulled in and asked Travis, you know, if he had a mat I could borrow, and asked him why he wasn't working.
00:41:01 It didn't look like they were working.
00:41:06 Why weren't they mining?
00:41:07 What did Mr. Turnbull say to you when you asked him why they weren't mining that day?
00:41:12 He just kind of got a smirk on his face, a smile on his face and said they were mining the miner.
00:41:19 Objection, Mr. Campion, to hearsay.
00:41:22 Your honor, it's not hearsay because under 801D1, it's a prior statement of a witness.
00:41:27 Mr. Turnbull was given the opportunity to explain or deny whether he made this statement.
00:41:30 Further, I would say under 801D2, it's a statement of a party opponent or representative of a party opponent, so I believe it's not hearsay.
00:41:37 Maintaining the objection.
00:41:39 Your honor, Mr. Turnbull was never asked to explain and never given an opportunity to explain why he didn't make that statement.
00:41:47 All right.
00:41:47 Approach, please, counsel.
00:41:51 So you're talking about direct testimony of Travis when he was here and he was either asked the question or wasn't asked the question, right?
00:42:15 So your position is he was not asked the question.
00:42:19 But he went on and said not only did he not make the statement, he said he never heard anyone use that statement at all during the 2009 season.
00:42:36 So why doesn't he get to ask it?
00:42:43 Mr. Kroenke is asking if he made the statement he didn't hear anybody else make it.
00:42:55 Restate your question, Mr. Kroenke.
00:42:57 I was asking Mr. Wooden about a conversation he had with Mr. Turnbull, and I had just asked him, he had said, Mr. Wooden testified, he had asked Mr. Turnbull why they weren't lining, and the question was, did Mr. Turnbull explain why they weren't lining?
00:43:13 That's where the objection came from.
00:43:16 He was going to say, Mr. Turnbull said defilement.
00:43:23 Right.
00:43:30 May I proceed?
00:43:30 You may.
00:44:00 Mr. Woodham, can you still hear me?
00:44:02 Yes, I can.
00:44:03 Just to reset the stage for the jury, you were just testifying about asking Mr. Turnbull a question about why they weren't mining?
00:44:13 Yes.
00:44:14 Why did you ask that question?
00:44:15 Because it was during the mining season, and it seemed like they'd been there for a little while, and it seemed like they should be mining.
00:44:27 They were either going to
00:44:28 And he said it to me.
00:44:29 He said it to me.
00:44:29 I was standing there within six feet of him.
00:44:33 He said it to me.
00:44:56 You know, I could tell by the look on his face that it might be some kind of a conversation in the background with Rass and himself that it didn't have anything to do with Randy.
00:45:07 It was a conversation that was someplace else, was the impression that I got.
00:45:11 All right, I want to talk to you about later on in the summer.
00:45:15 Do you recall transporting Mr. Turnbull out of Dan Creek?
00:45:19 Yes, I do.
00:45:20 Why did you do that?
00:45:23 Well, I got an airplane, and Randy probably wasn't there.
00:45:26 Mr. Elliott probably wasn't at the mine site because otherwise it seemed like they would have just walked up there.
00:45:31 They had a business deal with Mr. Elliott, not with me.
00:45:34 But Frank, one of the guys who was working there with Travis, had come down to the camp, down to my camp, and asked,
00:45:42 If I could fly Travis out because Travis hadn't been out of their camp in a couple of days two or three days wasn't eating it wasn't drinking and would I be willing to medevac him out to McCarthy and I told him yeah don't even have to ask twice just get him down here let's get him in the airplane if he's not cohesive if he's not coherent Frank I'll have to take you with me too and you'll have to drive him into town
00:46:09 But he can't stay here.
00:46:11 He can't stay in Dan Creek if he's not going to survive.
00:46:17 If you're not drinking water, you don't survive long.
00:46:22 Long time.
00:46:23 Not drinking water, you can't survive.
00:46:25 Did you ever send a bill to Mr. Turnbull or Mr. Kroenke for transporting Mr. Turnbull and Mr. Martin out of Dan Creek?
00:46:32 No.
00:46:32 No.
00:46:33 I'm a part 91 guy.
00:46:34 I'm just a private pilot guy.
00:46:37 The rules don't allow me to charge for those kind of flights.
00:46:41 The rule allows me to charge a small amount for those kind of flights, but it's half of whatever it costs me.
00:46:47 So it takes eight gallons of gasoline to drive over that.
00:46:51 I can charge you $8 for the gas or $32 for the gas.
00:46:55 It's not worth my time to even do it, and I'm trying to be helpful and get those guys out of here so that nobody would be harmed, especially Travis would be harmed out here because he was sick.
00:47:06 There was no mention that he had a history of migraines.
00:47:09 There was no mention, nobody knows that he has a history of migraines until two or three days later when Travis called and thanked me for doing that.
00:47:15 But Seth never called and offered to pay anything for it, and I never asked for any money.
00:47:21 You mentioned Seth.
00:47:22 Did you have conversations with Mr. Kroenke during the 2020 mining season?
00:47:27 Occasionally, but not very often.
00:47:30 Whatever Mr. Elliott was doing or Mr. Kroenke was doing was their business, and I wasn't in the middle of it.
00:47:36 towards the end of the season, did you offer directly to Mr. Kroenke that he could stage or store his equipment on your property?
00:47:44 Yes, I did.
00:47:46 I did have his phone number.
00:47:47 So when Frank and Travis, when I medevaced them out and they left, it was my understanding that they weren't coming back.
00:47:58 They were just not going to come back.
00:48:00 I was never told that they couldn't come back I was never told that they were thrown off the property and they weren't welcome back I was never told that but the impression that I got from them talking to Frank actually talking to Frank the impression was that they weren't coming back so as soon as they were gone I called Seth back would have been within one or two days I called Seth and said look if you're not going to be here uh Mr Kroenke if you're not going to be here
00:48:25 You're welcome to bring your equipment down here and get it off of Mr. Elliott's property.
00:48:30 If it's down here, and I don't have the keys for it, and Mr. Elliott doesn't have the keys for it, and it's just safe.
00:48:36 It's safe.
00:48:37 We don't need to use it.
00:48:38 There's nothing there to use for us.
00:48:40 Just put it down here on track A, out of sight, out of mind.
00:48:44 You're welcome to park the stuff down here.
00:48:48 Why were you willing to do that, to let Mr. Kroenke stage or store his equipment on your property?
00:48:55 Well, for a couple of different things.
00:48:57 I am from the bush, and I realize that Mr. Kroenke is from the bush also.
00:49:01 So when you leave stuff in the bush unattended, everybody can use it.
00:49:08 Everybody can use it.
00:49:09 So when you come back to get it, is it going to be broken or tore up, or is it going to be unused?
00:49:14 Nobody knows.
00:49:15 So my first motive was to
00:49:19 have Mr. Kroenke get possession of his equipment again and put it down here where nobody was going to use it and the second part of that was I rent equipment in Wasilla and when I call a rental company and rent a piece of equipment that shows up at my job site
00:49:33 And I use it, and when I'm done with it, I call the rental company and say, I'm all done.
00:49:37 And if it's a Monday afternoon and I'm done, then the rent stops at that moment.
00:49:42 They might not come and pick it up for a week.
00:49:44 It might sit in my yard for three weeks.
00:49:45 It doesn't make any difference because I'm not paying the rent.
00:49:48 It's their transportation whenever they want to come pick it up.
00:49:51 So my second motive was to, if Seth was to take possession of his rental equipment and put it on my property down here, that the rent would stop.
00:50:02 So, I was trying to protect his equipment, and I was also trying to get the rent to stop.
00:50:07 My last question for you, Mr. Whittem, was in your conversation or conversations with Mr. Kroenke about storing and staging his equipment, did he ever tell you that Mr. Elliott had kicked him and his crew off of the property at Dane Creek?
00:50:21 No, I was never led to believe that.
00:50:25 Seth never said that.
00:50:26 I don't remember that.
00:50:28 Just like what I said about mining the miner, that's one of those things that sticks out in your head.
00:50:32 Wow, I've never heard that saying before.
00:50:34 That sticks out in my head.
00:50:35 If I had ever heard Seth say, well, you know, we got kicked off.
00:50:39 Thank you for calling, Ron, because we got kicked off.
00:50:41 I didn't know where to store my product.
00:50:43 He never said that.
00:50:44 And same with Frank.
00:50:45 When I took Frank and Travis out of here, Frank never said, well, we got kicked off, so I don't know what we're going to do with our equipment.
00:50:50 And then a couple of times that we've had coffee with Mr. Elliott.
00:50:53 Mr. Elliott never said, you know, I kicked those guys off.
00:50:56 I never heard that and I was never led to believe that they got kicked off the property.
00:51:01 My understanding and my belief by talking to Frank was that they left.
00:51:06 They just just left.
00:51:09 I also understand that they also had another job in Valdez.
00:51:13 Oh, and another job in up on the Willow Fire that Mr. Kroenke had other jobs going also.
00:51:20 So
00:51:21 It kind of doesn't make any sense.
00:51:22 If you're not making money out here, why would you stay out here when you have other jobs going on?
00:51:25 All right, Mr. Widom, those are my questions.
00:51:27 I'm going to pass you as a witness over to Mr. Brzezinski.
00:51:29 He'll have questions for you, and I may have a couple follow-up, okay?
00:51:33 Very good.
00:51:34 Thank you.
00:51:34 Thank you, Mr. Campion.
00:51:35 Mr. Brzezinski.
00:51:36 Thank you, Judge.
00:51:43 Sir, you're friends with Ms.
00:51:47 Jalliot, right?
00:51:50 Yes, I am.
00:51:51 You're friends from day one, right?
00:51:53 Yeah, we hit it off day one.
00:51:55 Ten years ago, we hit it right off.
00:51:57 And you're best friends?
00:52:00 And today, I would call us best friends, yes.
00:52:04 And you've got a house right near Mr. Elliott, right?
00:52:11 I have a house on, I'm two miles, I'm one mile away, 1400-2400.
00:52:17 I'm about a mile away from Mr. Elliott's house, yes.
00:52:20 I'm in another subdivision, approximately one mile away from Mr. Elliott.
00:52:25 And you spend your whole summer at Dan Creek, which is Mr. Elliott's property, right?
00:52:32 I spend a whole summer in Dan Creek, yes.
00:52:36 And then we do lease a piece of property from Mr. Elliott.
00:52:39 It's up the canyon a ways.
00:52:44 And it's important to you to maintain a good relationship with Mr. Elliott, right?
00:52:49 It's important for me to have a relationship with my best friend, yes.
00:52:53 It's very important that I don't lie to the court system.
00:52:56 It's very important that I just tell my story and tell the truth.
00:53:02 If it damages my relationship with Mr. Elliott, then I'll repair that.
00:53:06 Okay.
00:53:07 So you said that, if I remember correctly, that it cost you $50,000 to operate at Dan Creek every year?
00:53:19 correct to mine the actual cost so when I had the deposition with you I told you about $250,000 that we bring $250,000 with us out here and we do we do we buy rock truck tires we buy hydraulic cylinders we buy stuff that lasts five to seven years so when I took those figures out of my accounting system and I just use actual stuff stuff expendable stuff oil filters grease
00:53:54 And we can agree that Miss Luna does the accounting for your company, right?
00:54:05 No, we can't.
00:54:06 No, the Kelly crew, Miss Luna, they have their own organization.
00:54:10 No, I do my own accounting.
00:54:13 So you spend $250,000 a year out there, right?
00:54:20 That's correct, and that includes housing.
00:54:23 You know, we're building a house out here.
00:54:24 That includes capital expenditures that would last for five to seven years.
00:54:31 So when I buy a new rock truck, I might buy that this year for $140,000, but obviously I'm not going to expend it.
00:54:39 It doesn't wear out in one year.
00:54:41 Well, it wears out in seven years.
00:54:43 What's the total capital expenditure you have in your equipment out there?
00:54:50 Oh, my gosh.
00:54:51 Oh, man, we got a lot of equipment out here.
00:55:03 Pretty close to
00:55:06 Probably pretty close to a million dollars, and that's a guess.
00:55:09 I'm adding them up really quick.
00:55:11 We've got three gigantic excavators.
00:55:13 We've got a medium-sized excavator.
00:55:14 We've got a big rock truck, biggest Parker Schnabel's rock truck.
00:55:17 We've got a D6 cat.
00:55:19 We've got multiple pickups.
00:55:21 We've got a camp trailer.
00:55:22 We've got a generator.
00:55:23 We've got a wash plant.
00:55:25 Probably close to a million dollars.
00:55:26 Don't, you know, close.
00:55:33 Did you pay close attention to the work that the ROSCO is doing in 2020?
00:55:40 Well, yeah, I mean, we drive by at nine miles an hour, and then I can look over there, you know, I glance over there, okay, yeah, they're there or they're not there.
00:55:48 And then I come back at nine miles an hour and I glance over there and I see that they're there and they're not there.
00:55:52 But in the summertime, the summer is so short that we pay close attention to what we're doing.
00:56:00 So you're about, what, 300 or so yards from Remote Alaska Solutions back in 2020?
00:56:09 We are on the runway, and they're on the floodplain.
00:56:12 300 yards is 900 feet.
00:56:15 I think I testified that that might be 900 feet in a deposition.
00:56:20 It's somewhere between 300 and 900 feet.
00:56:22 I'd have to think about it.
00:56:24 It's probably closer to 300 feet than 900 feet, but somewhere between those two numbers.
00:56:30 We didn't drive by 25 feet away.
00:56:32 I mean, we are looking across an area where there were.
00:56:59 That's everything I have.
00:57:00 Thank you.
00:57:01 Thank you, Mr. Brzezinski.
00:57:02 Mr. Campion, follow-up?
00:57:04 I don't have any other questions for Mr. Widom.
00:57:05 Thank you.
00:57:05 Mr. Widom, thank you.
00:57:07 That concludes your testimony.
00:57:08 We appreciate your time this morning.
00:57:09 We'll let you go.
00:57:11 Thank you.
00:57:12 Is there anybody else?
00:57:13 Nobody else out in Dan Creek?
00:57:15 No, that's it.
00:57:15 Thank you, Mr. Widom.
00:57:16 We're going to disconnect the Zoom link and let you go.
00:57:18 Thank you very much, Mr. Widom.
00:57:32 Thank you, Mr. Campion.
00:57:32 Mr. Brzezinski, Mr. Dettinger, do you have rebuttal?
00:57:37 MR. Yes, we do, Judge.
00:57:40 We have a – if we could take a quick break, there's probably some things we need to address with the court prior to rebuttal.
00:57:45 All right.
00:57:46 Fair enough.
00:57:47 So, folks, we're going to take a short recess here.
00:57:49 Looks like we're moving right along, so maybe 10, 15 minutes or so.
00:57:53 MR. And we'll be done well within a time frame.
00:58:27 And the jury is out, so have a seat, folks.
00:58:29 Issues to address, Mr. Brzezinski, Mr. Bettinger.
00:58:33 As the defense has rested, the plaintiff would move for a directed verdict on the counterclaim for abuse of process on the request for human damages.
00:58:43 I have a brief written motion for the record, if I could serve that and hand it to the court.
00:58:49 You may.
00:59:01 First of all, the file is definitely with customer service for the file.
01:00:01 Let me ask this question, Mr. Bedinger.
01:00:07 Do you need a ruling on this motion for directed verdict before addressing rebuttal?
01:00:12 No, we do not.
01:00:13 All right.
01:00:13 Then why don't we do this?
01:00:15 Let's take up your rebuttal case, and then given the pace at which we're going, we can take up your motion after we've – essentially this is – we can address this before you go to closing argument, it sounds like.
01:00:29 Is that fair?
01:00:30 Yes, I think so.
01:00:30 Okay, Mr. Campion?
01:00:32 That sounds good, thank you.
01:00:34 All right, so let's go ahead and take that.
01:00:36 Do you know what you've got in terms of rebuttal?
01:00:37 Are you going to put Mr. Kroenke back on, live testimony, depositions?
01:00:42 What's your plan?
01:00:43 We intend to recall Mr. Kroenke, and then we intend to very briefly use a deposition of Mr. Charles Armstrong, as previously designated.
01:00:55 Okay.
01:00:56 And that's the portion of the deposition that was specifically designated.
01:00:59 I believe so.
01:01:02 I designated a number of lines and then mentioned in there, as we always do, that those lines are the minimum and we may alter them based on the defense case presented in their case.
01:01:15 And anybody other than Mr. Armstrong?
01:01:21 No, Your Honor.
01:01:25 And that, for the record, is Exhibit 22 is Mr. Armstrong's deposition transcript.
01:01:34 Yeah, I was just looking for your designations.
01:01:48 Actually, I don't have, did you do specific page and line designations?
01:01:53 I did.
01:01:55 I don't have them here.
01:01:56 Do you have a copy there by chance?
01:02:00 I can pull up one on my computer.
01:02:01 I don't have a hard copy.
01:02:02 That's all right.
01:02:08 All right.
01:02:08 So in terms of then just from the practical standpoint, you're going to ask the questions and somebody's going to read the answers?
01:02:14 Do you want to do it that way, Martin?
01:02:16 Sure.
01:02:17 We can role play.
01:02:17 Sure.
01:02:18 We can role play.
01:02:20 At least that's the way I have done it in the past, but that's old school, I recognize.
01:02:28 I wasn't clear about Mr. Benninger's answer if he intends to go beyond what was designated and if so I would ask to know in advance.
01:02:40 Mr. Armstrong could be available to testify via Zoom if there's a question about his availability and if they intend to go beyond that I'd like to know that Your Honor.
01:02:50 I should say if they intend to go beyond what they designate I'd like to know that.
01:02:54 I could pull that up in about two minutes.
01:02:56 I'm not sure if you have a copy, Mr. Campion, of the designations.
01:02:58 I set my notes.
01:02:59 I have the tick page numbers and the lines.
01:03:02 If you could pull it up and shoot a copy of that to Miyoko, I'm not sure that I saw that.
01:03:09 It may be that it is somewhere.
01:03:13 May I take a short comfort break?
01:03:15 Yes, absolutely.
01:03:17 While you're doing that, Mr. Bedinger, we'll go ahead and take a short break here and then we'll pick back up.