“Zvi Goffer, You’re Fired!” Is that a line from an upcoming episode of Celebrity Apprentice uttered by Donald Trump? No, actually this was the dramatic opening line delivered to the jury by William R. Barzee, counsel to Zvi Goffer, as day one of the trial of Zvi, his brother Emanuel Goffer and Michael Kimelman began. I nearly fell out of my seat. Mr. Barzee, a rather colorful florida-based criminal lawyer who began the day arguing with Judge Sullivan over the ability of a juror with some medical appointments to be fair, displayed both his pugnacious style and perhaps certain telltale signs of being afflicted with “legal ADD”. In this regard, Mr. Barzee even told the jury before beginning his cross examination of the lead FBI agent that he may be a bit “all over the place”. He was right. Barzee certainly gets an “A” for theatrics, calling his client Zvi a “gold miner” panning for gold along the “river of gossip”, and acknowledging that his client did in fact receive tips (perhaps in exchange for cash) from a lawyer known as the “Gossip Queen”. Octopussy and the Gossip Queen, the next great Elton John song? You really can not make this stuff up.
Entertaining courtroom theater, perhaps, but strategically sound legal representation? In my opinion, it is awfully dangerous to repeatedly call your client a fabricator, an exaggerator, a fibber, and even perhaps a bit of a liar. Who knows, perhaps Mr. Barzee has a sound rationale for telling the jury that Mr. Goffer was fired by Raj Rajaratnam for lying and losing boatloads of money trading, but if Zvi were to testify, I can just imagine the cross examination by prosecutor Andrew Fish: “So Mr. Goffer, your own lawyer has called you a liar, and a guy who lives in the land of make believe. Mr. Goffer, why exactly are we are supposed to believe your testimony now?” Hmmm.
As far as Emanuel Goffer is concerned (his attorney Michael Ross calls him “Manny”), his involvement in this case seems the least interesting, at least from a legal perspective. Emanuel (or “Nu” as those of us who actually know him refer to him) seems to be a bit of a legal pawn here, with his fortunes tied inextricably to his brother’s defense. Mr. Ross eloquently portrayed Nu as a hardworking and successful trader, and a wonderful family man. What is clear already is that the brothers Goffer are clearly on the same team, fighting the same fight against the government.
The same can not be said of Mr. Kimelman, who is being represented by Michael Sommer and his team from Wilson, Sonsini, Goodrich & Rosati. From the moment Mr. Sommer took the stand to address the jury it was obvious that the “A” team had arrived. From his opening remarks it was apparent to all in the courtroom that Mr. Sommer is a heavy hitter, and that Mr. Kimelman’s team views the government’s case against him as a third and separate trial: The United States vs. Kimelman. Outlining his case for the jury, Mr. Summer expertly utilized a white board and some props to clearly set forth exactly how his client’s case differs from the case against the Goffers.
This does not necessarily mean, however, that the Goffers and Kimelman are legal adversaries, but they will clearly have seperate defenses, with different evidence presented both for and against them. Mr. Kimelman’s strategy, it seems, will be rooted in the law, and based upon his legal team’s overriding belief that, while the Goffers and Mr. Kimelman were in fact business partners, there is no credible evidence whatsoever that demonstrates that Kimelman either knowingly traded on material non-public information (eg, insider information), or conspired to do so with the Goffers. As Summer said repeatedly, there are no emails, no instant messages, no wiretaps, no secret phones, no cash exchanges and no informant testimony that will be presented to the jury that will link Mr. Kimelman to the alleged crimes. The government’s case, he argued, is based on pure supposition and circumstance.
Accordingly, Mr. Sommer and his team will challenge the prosecution to prove to the jury beyond a reasonable doubt, as is its burden, that Michael Kimelman is guilty of anything more than simply ”guilt by association“. They will invoke constitutionally based legal principles such as the presumption of innocence, and attack the governments strategy that appears aimed at asking the jurors to come to legal conclusions by ”using your common sense” to fill in the gaping evidentiary holes. Mr. Summer will remind the jury that their job is not to guess, speculate or assume. Their job is to evaluate the facts and evidence presented to them.
I like the strategy, and I like Mike’s chances. Stay tuned to HedgeFund Live for more coverage of the Goffer trial.
This blog originally posted on www.ClearandPresent.com