A third week of testimony that only a Scottish banker could follow without falling asleep was lowlighted by close scrutiny of the many checks and other documents defendant Chris Mulcahy may or may not have written on the Brutacao account to benefit himself.
The Brutacaos allege Mulcahy, their former chief financial guy, was stealing from them. Mulcahy says he was authorized by the Brutacaos to spend the money.
As Mulcahy's defense attorney, Justin Petersen, explained to Judge John Behnke last week, the reason this case took so long to go to trial was the massive amount of paperwork that had to be gone through to prepare his client’s case. Records from Bank of America covering nearly a four-year period, for instance, were subpoenaed, and a 15% sampling of this mound of financial transactions was brought into court as evidence to prove whatever it can be made to prove.
Court Clerk Bonnie Miller’s desk, already laden with an intimidating pile of paper, groaned under the addition of countless reams of cancelled checks. The jury looked on hollow-eyed, knowing they were in for major tedium. Spectators not involved in the proceedings gathered up their belongings and fled the room.
Judge Behnke, aware that the jury already seemed to consider themselves hostages, surveyed the twelve martyrs over the top of his glasses and freed them for their mid-morning break. Like children liberated for the playground after hours in a stuffy classroom, the jurors seemed to sprint for the door.
“Counsel,” the judge said, as he sternly turned his full attention on Petersen, “I am trying to make the best use of the jury’s time here, and this… this is… well, it’s not helping matters any.”
“It’s only a 15% sampling, your honor.”
“I object, judge,” DA Eyster who is prosecuting the cae himself said, not having to point out that close examination of 15% of a million cancelled checks would amount to slow-baking the jury over a low fire.
“In fairness to my client, your honor…” Petersen tried, and darned if fairness, chloroform type, won out, and when the jury returned, fortified by coffee and pastries from Schat’s Bakery next door, the torturous droning resumed its ponderous pace, with defendant Christopher Mulcahy on the stand.
Petersen: “Did Len Brutocao or Steve Brutocao ever ask you financial questions?”
Mulcahy: “No.”
Petersen: “Did that strike you as unusual?”
Mulcahy: “No.”
Petersen: “Why not?”
Mulcahy: “When I worked at Coca Cola I signed lots of checks and things and was used to working on my own.”
Petersen: “Did Len ever talk to you about filings?”
Mulcahy: “No. He didn’t want to be bothered with small details.”
Petersen: “Ever talk to Steve about signing checks?”
Mulcahy: “Yes. I had some checks that had to go out, so I asked Steve if I should sign them and he said, Yeah.”
Petersen: “Did you ever pose on-line as any one in the family?”
Mulcahy: “Yes.”
Petersen: “With Steve’s permission?”
Mulcahy: “Yes. He gave me the password.”
Petersen: “Did you sign invoices in Steve’s name?”
Mulcahy: “Yes.”
Petersen: “Permits?”
Mulcahy: “Yes.”
Petersen: “Certificates of analysis?”
Mulcahy: “Yes.”
Petersen: “Was any of this of any benefit to you?”
Mulcahy: “No.”
Petersen: “Was it of any benefit to Brutocao?”
Mulcahy: “Yes, the sales could not be completed without doing so.”
Petersen: “I’m going to show you page three of a document and ask if you recognize it.”
Eyster: “Objection.”
Behnke: “I’m going to let him answer as to what it is.”
Mulcahy: “It is a business document regarding an expansion of the vineyard in Anderson Valley.”
Petersen: “What is this on page four?”
Eyster: “Objection.”
Behnke: “He can answer.”
Mulcahy: “It’s a summary of the expansion where we talked about planting zinfandel, various clones, an estimated $1.8 million project.”
Petersen: “Any reason why you signed it?”
Mulcahy: “I got a loan for the project.”
Petersen: “Wasn’t there hundreds of pages?”
Mulcahy: “Yes.”
Eyster: “Objection.”
Mulcahy was doing pretty well. He seemed to have plausible answers for everything, and he continued to have plausible answers as the day grew longer and warmer, and the paper became virtual contrails.
Petersen: “If we had a stack of all the paperwork involved in this expansion, how high would it be?”
Mulcahy: “Over eight feet tall.”
Eyster: “Objection, calls for speculation.”
Behenke: “I’m gonna let it stand.”
The thought of eight feet of documents being hauled into the courtroom caused a collective shudder in the jury box.
Petersen: “Did you get bank statements at Brutocao?”
Mulcahy: “Yes, they’d hand ‘em to me and I’d file ‘em.”
Petersen: “Did these statements include the fronts and backs of checks?”
Mulcahy: “The fronts, yes. After a few years we would…”
Eyster: “Objection.”
Behnke: “Who do you mean by ‘we’?”
Mulcahy: “Me and the forklift driver.”
Petersen: “Did that include every check you signed Steve’s name to?”
Mulcahy: “Yes.”
Petersen: “Did you ever suggest Steve should look at ‘em?”
Mulcahy: “Yes.”
Petersen: “Why?”
Mulcahy: “There were particular vendors I thought should be reconsidered.”
Petersen: “Ever try to conceal the checks you signed?”
Mulcahy: “No.”
Petersen: “Could anyone who wanted to get into the system?”
Mulcahy: “Not anyone.”
Petersen: “Aside from looking at the bank statements, was there a way to see who signed the checks?”
Mulcahy: “No.”
Petersen: “Let’s move on to ’09. You were no longer an employee, but as an independent contractor, were you still signing checks and other documents for Brutocao as part of your normal CFO duties?”
Mulcahy: “Yes.”
Petersen: “Did your duties change?”
Mulcahy: “No.”
Petersen: “Did your hours change?”
Mulcahy: “No.”
Petersen: “So aside from the label ‘contractor’ you were still an employee?”
Mulcahy: “Yes.”
Petersen: “So you were still signing documents and checks for Steve?”
Mulcahey: “Yes.”
Petersen: “Was there ever anything you signed Steve’s name to where you tried to cheat Brutocao?”
Eyster: “Objection, leading the witness.”
Behnke: “Ask it a different way.”
Petersen: “Did you ever cheat Brutocao?”
Mulcahy: “No.”
Petersen was just getting warmed up. It would be two more long, hot days before defense even got to the checks in question. No one but myself and two women — closely related to the defendant — were left in the gallery.
From time to time, an idle lawyer would drop by and listen in momentarily, for instructive purposes, ostensibly, then, patting down an incipient yawn, pressing engagement elsewhere, scurry away. The jurors regarded these flights with an envy bordering on resentment. Two other jury trials were in progress, one a pot case across the hall in Judge Ann Moorman’s court, and a DUI upstairs in Judge Jeanine Nadel’s traffic court. Mendo pot cases and DUIs are as interesting as watching the monks meditate at the Buddhist Temple east of Ukiah, but they were absolutely enthralling compared to the Mulcahy matter.
Judge Behnke told the jury to stand up and stretch a while, as some of them appeared lost in dreamland. The judge seemed as much in need of the exercise himself, and the two Mulcahy women — who had also been taking notes assiduously — did so, as well.
It was looking better for Mulcahy. Changing his status from employee to contractor was a financial boon to Brutocao, but meant more work and more expense for Mulcahy because Mulcahy had to put the printing costs of labels for the shiners (unlabeled bottles) on his own credit card; had to pick up the workload for three departed workers for the same pay, absorbing a total of five extra jobs. Exports had gone up 500% and invoices had increased by 600%, and just maybe the eight feet of documents would exonerate him.
There turned out to be 120 checks in the 15% sampling that Mulcahy had signed Steve Brutocao’s name to. But only seven of these were of interest to the prosecution, the ones that had allegedly been forged. These checks were said — by Steven Brutocao — to be “missing” or “hidden” in the bookkeeping system at Brutocao. (Keep in mind that Steven Brutocao had said that Mulcahy never had permission or authority to sign any checks in Brutocao’s name.)
Petersen: “I’m showing you People’s exhibit No. 33. Is that a check you signed?”
Mulcahy: “Yes.”
Petersen: “And was it on the missing list?”
Mulcahy: “Yes.”
Petersen: “So they were unable to find it?”
Mulcahy: “So they said.”
Petersen: “Were you able to find it?”
Mulcahy: “Yes.”
Petersen: “How did you find it?”
Mulcahy: “I found another check written at the same time to the same amount and compared the check numbers. The check I found was check number 14165 and the “missing” check was number 17165. Now, on the keypad the seven is right next to the four, and it sometimes happens that somebody will hit the seven instead of the four. It’s what we call ‘fat-fingering’.”
Petersen: “So People’s 33 actually is in the system?”
Mulcahy: “Yes. Someone fat-fingered the number in the computer system.”
Petersen: “How did you have access to the system, since you’d been fired?’
Mulcahy: “I had downloaded that information — up until I was fired in February — for my own records.”
Petersen and Mulcahy were able to account for the mystery checks.
DA Eyster rose, peering over his glasses with his well known “The bullshit stops here” look. The DA stepped toward the witness stand and exclaimed, “Judge, he’s looking at something!”
Behnke: “Mr. Mulcahy, you have to testify from memory. If you have something before you, please turn it over.”
Which he did, and the question of a few “hidden” or “missing” checks resumed.
The checks didn't seem to be “missing” or suspiciously “hidden.”
The DA didn’t appear to be dismayed. The next morning he began his cross and things got interesting.
Eyster (waving a document): “This is your contract with Bruatacao?”
Mulcahy: “Yes.”
Eyster: “Show me where it says you are taking on employees for Brutocao.”
Mulcahy: “It’s not in that section.”
Eyster: “You wrote this?”
Mulcahy: “Yes.”
Eyster: “I thought you said North Coast Vineyard Services was formed for that purpose.”
Mulcahy: “We had not taken that step yet.”
Eyster: “We? Who is we?”
Mulcahy: “North Coast Vineyard Services.”
Mr. Mulcahy apparently subscribes to the controversial notions that corporations are people.
Eyster: “So when you say ‘we,’ what you really mean is you?”
Mulcahy: “Yes, me. We — I mean me — were working to establish a working relationship in ’09 so that when we — me, I mean — did decide to move workers into this, we would have a history of”—
Eyster: “Judge, I’m gonna object to the witness’s use of the word ‘we’.”
Behnke: “I think he’s referring to conversations he had with Len Brutocao.”
Eyster: “Ah, yes. You said you had conversations with Len about Obamacare and how that would affect employees. You claimed to know all about Obamacare well in advance.”
Mulcahy: “I had conversations with Len, and we wanted to show a long term working relationship with Brutocao.”
Eyster: “You understand, don’t you Mr. Mulcahy, that Obamacare didn’t even get to the House [of Representatives] until ’09?”
Mulcahy: “We saw it coming and wanted to get out in front of it. But then Len Sr. had a terrible fall and moved South and never came back.”
Eyster: “You were having discussions on Obamacare before the elections in ’08?! How did you know Clinton [sic] wasn’t going to win?”
Mulcahy: “Obama looked like he had a good chance.”
Eyster: “What about Romney? Did you have a contingency plan if Romney won?”
Mulcahy: “There was no contingency plan, no.”
Eyster: “The elections were in November, weren’t they?
Mulcahy: “They may have been in November, I don’t recall.”
The DA lost interest in Mulcahy’s political prescience, and moved back onto the signing of contracts.
Eyster: “This document I’m showing you has to do with your claim for hours worked on weekends. There’s no way to tell when this document was created, is there?”
Mulcahy: “No.”
Eyster: “Do you know what contemporaneously means?”
Mulcahy: “At the same time?”
Eyster: “Close enough. Do you have any memos, or anything that was created contemporaneously with this document?”
Mulcahy: “No.”
Eyster: “So we have to take your word for it, and the Brutocaos had to trust you, didn’t they?”
Mulcahy: “Yep.”
Eyster: “By the way, the mileage log, for your trips to Ukiah, there is no way to tell when that was created, is there?”
Mulcahy: “No.”
Eyster: “And these receipts from Staples and Costco, is there any way to tell where those items went, whether they were for yourself or for the Brutocaos?’
Mulcahy: “The computer monitor — I gave Jill Derwinsky a sales goal and said I’d buy her a new monitor if she met it.”
Eyster: “Again, we have to trust you on that, don’t we?”
Mulcahy: “Not on the monitor.”
Eyster: “Well, how about the jury? They have to trust you, don’t they?”
Mulcahy (eagerly): “Yes.”
Perhaps we’ll find out next week when the trial resumes if the jury trusts Mr. Mulcahy. Judge Behnke gave them and himself a five-day weekend to recuperate from the torture of listening to the “check evidence” — pages and pages and pages of check evidence.
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