Estate of Harvey Feinsmith, Deceased, Betty Feinsmith, Executrix - Page 19




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          that Randy Hall’s involvement in the scheme began before that               
          time.  Mr. Perry also testified that Mr. Feinsmith was the only             
          one who dealt with the promoters on behalf of Randy Hall and that           
          Mr. Feinsmith was the only Randy Hall shareholder who actually              
          knew the promoters’ identity.  The record indicates that Randy              
          Hall purchased almost half of the false invoices before Mr.                 
          Feinsmith joined the company and that one of the promoters was              
          wary that either Mr. Perry or Mr. Rosenthal would reveal the                
          promoters’ identity to the authorities.                                     
               We also bear in mind that Mr. Perry is an indicted criminal            
          who pleaded guilty to his part in the scheme.  Given the                    
          additional fact that Mr. Feinsmith was not charged in the scheme            
          and that Mr. Feinsmith cooperated with the investigation of the             
          U.S. Attorney’s Office, including on at least one occasion                  
          secretly recording a conversation with an unidentified                      
          individual, we view Mr. Perry as a biased witness with animosity            
          towards Mr. Feinsmith.  In fact, Mr. Perry even indicated during            
          his testimony that he has ill will towards Mr. Feinsmith and that           
          he has an amiable, longstanding relationship with the other                 
          shareholder, Mr. Rosenthal.5  We also note that Mr. Feinsmith,              
          because he is dead, is unable to rebut personally Mr. Perry’s               
          testimony and that Mr. Perry displayed during his testimony a               
          poor memory as to many facts, even acknowledging on various                 


               5 Mr. Perry even went so far as to testify baldly that Mr.             
          Rosenthal had received none of the cash paid by the promoters.              




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