"Mooney said after the hearing that the defense team has yet to decide whether to offer Collins’ testimony at trial.
“We expected it,” he said of Collins’ revelation in court. “The issue of the case is going to be who counterfeited these wines. There were huge amounts of counterfeit wine circulating in this case. It’s a little bit of a game of musical chairs. When the music stopped, Rudy was the last one standing.”"
OK, good luck with that “musical chairs” theory.
Bruce
Ahhh, the fabled SODDI defense. Now it’s down to jury selection. Get a couple of jurors who think like the commenters on the story in the British press I post a couple of weeks ago, “Who cares if a bunch of rich guys got cheated etc.” and Rudy just might get a hung jury.
The musical chairs defense resulted in a $12 million judgment in Koch’s civil case against Greenberg. Somehow, this defense seems to me to be grasping at straws, or at best, at very thin reeds.
Is the defense going to claim that all those bottles being labelled in Rudy’s cellar were for personal consumption only?
I did find it fascinating that Bob averred that he had been hired to carefully vet old wine in the 70’s and 80’s. Values were much lower, and counterfeits much less frequent, so hiring someone to perform this service was unknown to me at the time. Certainly, if you were experienced n the trade, people would ask for advice about a bottle they were looking at.
But I cannot recall anyone hiring a paid expert to evaluate bottles in this era. But I did not enter the wine business until 1979. Any of you with longer memories on the board, who is aware of such expert engagement back in this era? I hardly think standards ahve slipped. They just have not increased as much as they need to.
I think that some of you may be oversimplifying what Rudy’s defense is going to be and what Bob Collins’ role is supposed to be in that defense. The following are excerpts from the letter of Rudy’s attorney, Jerome Mooney, to Jason Hernandez the Assistant US Attorney in charge of the prosecution, dated November 8, 2013 which describe Rudy’s defense and Collins’ intended testimony:
He has reviewed a list of the wines identified in the Complaint and the Superseding Indictment including, but not limited to those from Domaine Romanee-Conti, Domaine G. Roumier, Chateau Cheval Blanc, Domaine Ponsot, Domaine Comte Georges de Vogue, and Chateau Marguax and has familiarity with each of these domains and the particulars that should be found in bottles identified as well as the prevalence of counterfeiting of similar bottles.
He will testify that many of the above wines are commonly the subject of counterfeiting and that he has seen suspect and clearly false bottles purporting to be many of these wines throughout his years of work. He will testify that he has even seen what appear to be the same counterfeit bottles, not necessarily the above specific bottles, but similar domains and years in auction catalogues and at auction over and over again.
To the extent that Mr. Egan, or some other government witness, testifies at trial that specific bottles alleged to have been sold, or placed for sale, by Mr. Kurniawan were counterfeit, Mr. Collins may testify that some, if not all, of such bottles are completely consistent with prior counterfeits of those same wines that he has seen prior to Mr. Kurniawan’s appearance on the scene, and may thus be from sources other than Mr. Kurniawan. Accordingly, Mr. Collins has not formed any opinion as to whether Mr. Kurniawan did, in fact, counterfeit any wine, but rather, that based upon general availability of counterfeit bottles of the same wine Mr. Kurniawan may not have been the counterfeiter. (Emphasis added)
In other words, Mr. Collins will testify that there were essentially identical counterfeits out there even before Rudy arrived on the scene, and that thus the various counterfeits that Rudy sold could have been created by someone else. Collins will also blame the auction houses for failing to detect and stop counterfeits from being sold. Rudy’s lawyers are going to claim that Rudy was the victim because he purchased other people’s counterfeits, not the counterfeiter.
There are four big problems with this theory: (1) First, to the extent that the government has direct evidence of counterfeiting by Rudy (i.e. the counterfeiting factory found in Rudy’s house, complete with thousands of fake labels, blank paper for labels, rubber stamps, buckets full of capsules, blank corks, corking machine, menus for producing fake burgundies, etc.), it doesn’t wash; (2) At least Laurent Ponsot and Christophe Roumier will provide testimony that Rudy sold bottles of wine that were never made by those two domaines – and I would defy Mr. Collins to come up with any evidence that those particular non-existent bottles were ever offered and sold by anybody else; (3) Rudy repeatedly described himself to others as being an “expert” on detecting fakes. If Rudy’s defense is based on him unknowingly re-selling counterfeit wines he purchased from others, again it doesn’t wash. By his own admission, Rudy knew enough to avoid buying counterfeits. At the same time, if he was “expert” in authentication as claimed, then he would have known the bottles he was selling were counterfeit; and (4) there is no way that Bob Collins could testify that he has previously seen bottles identical to Rudy’s counterfeits that were sold before Rudy arrived on the scene in the year 2001. For any authentication expert to offer such an opinion based on fact the expert would have to do a detailed side-by-side comparison of counterfeit bottle A vs. counterfeit bottle B. Without having made such a comparison, and being able to produce such evidence for presentation to the court and cross-examination, I don’t see how a judge could allow a purported expert to testify to such a conclusion.
I didn’t attend the hearing yesterday, but I understand from Peter Hellman that it lasted for three hours. I’m told that the fourth point I raised above never came up during the hearing. I’m actually surprised by that, because Daubert hearings are not just limited to the expert’s qualifications to testify but most often are based upon whether the testimony that the expert intends to offer to the jury is sufficiently rooted in scientifically recognized fact to be credible and thus admissible. Opining that X number of the bottles that Rudy sold or tried to sell supposedly match other unspecified counterfeit bottles that were sold before Rudy appeared on the scene shouldn’t be admissible unless it’s based on side-by-side comparisons of the bottles in question or is based on other evidence (e.g. auction catalogs or dated photographic evidence) that would establish that there were in fact identical counterfeits that were sold previously.
It’s going to be an interesting trial. I will be there next week and will report on what’s happening here.
Nice work as usual, Don. So Rudy is adopting the Unwitting Dupe defense? No wonder he’s evidently had difficulties with his lawyers. It must be tremendously hard for a man who sees himself as the smartest guy in the room, and the connoisseur who conned dozens of wine lovers, to argue in court that he’s actually stupid and gullible.
Don, et. al.
How is the defense going to explain this one?
Phil
I’m assuming you’re referring to the unlabeled bottles found in Rudy’s home? I don’t think those can be explained, or the corking machine, stacks of labels, capsules, etc. But bear in mind we are all wine collectors and have a degree of knowledge that the typical juror won’t. I think the defense is hoping for a lot of people who don’t have the faintest clue about wine that might be more easily confused.
We have all been wrong. Rudy doesn’t collect wines but labels; he pours the wine down the sink, then removes the labels to mount (figuratively and literally) on his trophy wall.
Don,
I agree with Phillip. Those labels are extremely problematic.
I am not an attorney but this is a pretty crazy way to do this. Maybe there is some hung jury angle they are searching the weeds to find.
If the prosecutor is smart, he will pull out the corking machine and labels as one of his props and show the jurors. Really make a good presentation as to their actual function.
I know this will be a technical type of case but the Feds are VERY good at making these kinds of arguments. This is the bread and butter. Just hope they don’t have some Johnny Cochran move on the other side to discredit the machine and labels. i.e. they belonged to his girlfriend etc.
“Mr. Kurniawan, could you please cork this wine bottle using the corking machine labeled as Exhibit A.”
Kurniawan struggles with the machine and throws up his hands in frustration.
“If the cork doesn’t fit, you must acquit!”
After the OJ trial. nothing would surprise me:
What has 200 teeth and an IQ of 400?
A jury
The OJ trial was an LA thing. This is the feds. Completely different ballgame.
So instead of the SODDI defense it’s going to be the *ATODDI defense. Or the *ITDDTHDI defense.
*All Those Other Dudes Did It
or
*I’m Too Damn Dumb To Have Done It.
I heard it as the front row of a Willie Nelson concert.
If I’m the defense attorney, I try to confuse the hell out of the jury by throwing around a lot of technical terms and making it seem that this all involves a lot of rich people seeking status through wine and not really knowing what they are doing.
Many non-wine geeks think it’s ridiculous that bottles of wine can be sold for so much money. Some of them will be on this jury and will resent having to sift through a lot of complicated information to reach a decision about a crime that has nil impact on their everyday lives.
In terms of juror’s potential biases about a trial over pricy counterfeit wine, that topic should be covered in some depth in voir dire.
In terms of the evidence and the technical terms, we shall see how this all plays out. But given the physical evidence AND the email trails, along with the expected testimony from certain wine producers, I don’t think the prosecution’s case needs to be that complex.
Bruce
So who are the defense witnesses who will verify they sold some of the very wines in question to him?
Surely, a man who was buying that much wine has a long list of witnesses who will verify those purchases…surely…