IN RE THEOKARY

The Plaintiff's claims against the fourth defendant, Gaitway Farm, Inc. were dismissed after the completion of the Plaintiff's case-in-chief, pursuant to Fed.R.Bankr.P. 7052 (incorporating Fed.R.Civ.P. 52(c)).

Eisenhower testified that in an earlier conversation with the Plaintiff in September 2009, he told the Plaintiff, unequivocally, that the horses were at Magical Acres in February 2007. He testified that on November 29, 2009, the Plaintiff put him on the telephone with Sandler because he was willing to testify that horses could be "turned out" in a paddock in the winter. Eisenhower claimed that, at the outset of that telephone conversation, before discussing the Winter Issue, he told Sandler that he knew the horses were at Magical Acres in February 2007. Eisenhower then testified that after he concluded his telephone conversation with Sandler, the Plaintiff offered him money to testify falsely that the horses were not at Magical Acres on February 19, 2007.
The Plaintiff told a different version. He testified that on November 29th, Eisenhower told him that he (Eisenhower) was aware that the 2 Horses were not stabled at Magical Acres until the spring of 2007 (i.e., after February 19, 2007), which was one (1) reason he asked Eisenhower to speak with Sandler about the possibility of testifying the next day (the other reason being Eisenhower's supportive opinion on the Winter Issue). The Plaintiff denied offering Eisenhower any money for false testimony. He acknowledged that money was discussed, but suggested that the discussion referred only to reimbursement of travel expenses if Eisenhower testified as a fact witness on the Whereabouts Issue and perhaps a higher payment for expert testimony on the Winter Issue.
As for Sandler, while he did not recall precisely the details of his conversation with Eisenhower, he seemed certain that Eisenhower did not tell him specifically that the horses were at Magical Acres on February 19, 2007 (as Eisenhower testified). Sandler also testified that whatever the precise content of the information Eisenhower claimed to have regarding the horses' whereabouts, Sandler concluded quickly that the information was not based on personal knowledge, making Eisenhower unsuitable as a witness with respect to the Whereabouts Issue.
It is obvious that Eisenhower's testimony the Plaintiff's testimony are contradictory. It also is impossible reconcile Eisenhower's testimony with Sandler's. Eisenhower testified that he personally saw the 2 Horses at Magical Farms in February 2007. If, as he claims, he told that to Sandler during their telephone conversation, Sandler could not have concluded (as he testified) that Eisenhower's information was not based on personal knowledge; rather, Sandler would have concluded simply that Eisenhower's testimony would not be helpful (and, in fact, would be harmful) to the Plaintiff's case and, for that reason, would have made the decision not to call him as a witness.

While, neither witness is directly involved in the underlying events that gave rise to this litigation, I resolve this conflict, in large part (but not exclusively), based on the witnesses' relative potential for bias.
Sandler, of course, is involved in this litigation as counsel for the Plaintiff. Naturally, his role as counsel may create a potential for bias. However, Sandler is a professional who is bound by the rules of professional conduct governing attorneys. Based upon my observation of his demeanor during his testimony, I found him credible. I consider it unlikely that he would have purposely provided false testimony in violation of his ethical obligations. Further, apart from the potential for bias, his explanation for not calling Eisenhower as a witness (i.e., lack of personal knowledge) is consistent with common practice; trial attorneys routinely decide not to call witnesses that lack personal knowledge of the facts at issue. Finally, while Sandler did not remember many details regarding his telephone conversation with Eisenhower, I consider likely that he would remember why he decided not to call Eisenhower — a potential witness brought to his attention by his client on the eve of trial, while he was in the midst of his final trial preparations.
In comparison, I find that Eisenhower's testimony may have been influenced by his relationship with Howard Taylor. Taylor is an attorney who is deeply involved in various capacities in the horse racing industry. Eisenhower expressed admiration for Taylor as a "a horseman's advocate for many [in] my lifetime." (N.T. at 38). Taylor also has served as Eisenhower's attorney. Taylor represented the Defendants in this proceeding, before withdrawing as counsel and appearing as a witness at trial. While Taylor was in the courthouse during one of the trial dates in this proceeding, he and the Plaintiff were involved in an incident that agitated Taylor and left him furious with the Plaintiff. (The incident, which occurred outside of the courtroom, but was brought to the court's attention on the record, was resolved after the intervention of the U.S. Marshal service). The incident came to Eisenhower's attention when he read an emotional description of it that Taylor posted on an internet website. That description painted the Plaintiff in an extremely negative light and left no doubt that Taylor was hoping to obtain some form of retribution against the Plaintiff from the wrongdoing he believed occurred during the courthouse incident. After Eisenhower read the internet posting, he contacted Taylor. Taylor put Eisenhower in touch with the Defendants' counsel, which resulted in his testimony at the Consolidated Hearing.
Based on the considerations described above, I consider it more likely that Eisenhower's testimony was colored by his allegiance to Taylor than that Sandler's testimony was either purposely false or otherwise in error.

While neither Eisenhower nor the Plaintiff seemed certain as to what payments a witness may permissibly receive, they both seemed to understand that a fact witness can receive travel reimbursement and that an expert can be paid a fee. Thus, the fact that they discussed payment, by itself, does not convince me that the Plaintiff proposed to make the payment to induce false testimony. In these circumstances, it would have been easy for Eisenhower to have misunderstood the Plaintiff's statements and motivations. Further, for the reasons stated earlier, see n. 4supra, Eisenhower's credibility is sufficiently suspect that I am unwilling, based on his testimony alone, to conclude that the Plaintiff would commit the crime of suborning perjury in order to prevail in this litigation.
Finally, I note that in resolving this disputed factual issue in the Plaintiff's favor, I draw no further conclusions at this time regarding the Plaintiff's credibility with respect to the various other subjects in which his credibility was disputed by the Defendants during the course of the liability phase of this adversary proceeding. Undoubtedly, I will return to that subject when I resolve the merits of the parties' dispute after they have filed their post-trial written submissions.