Expert Witness Report
Koutsovasilis v. Carreira
(e) The Forensic Accounting Expert Evidence
[65] Alexandra tendered the expert opinion evidence of David Michael Oswald, an expert in the field of forensic accounting and computer forensics who was admitted to testify on the veracity of the banking records and the veracity of the Impugned Spreadsheet. Alexandra also proposed that Mr. Oswald’s permissible scope of testimony include the provision of opinions on the veracity of the parties’ pleaded claims, but I declined to admit Mr. Oswald for this purpose because the weighing of evidence and determination of the viability of pleaded claims is not within the role of the expert but rather the court.
[66] Paul tendered the expert opinion evidence of Alessandra Leggio, an expert in forensic accounting, forensic investigation, and fund tracing who was admitted to provide an analysis and critique of the limited opinion evidence that Mr. Oswald as was permitted to provide.
[67] Mr. Oswald testified that the data recorded in the Impugned Spreadsheet was unreliable because the source documents in support of its contents were not produced or available. This was not contentious because Ms. Leggio agreed that the impugned Spreadsheet was not reliable and, in any event, Paul’s counsel did not tender this document into evidence at trial. Mr. Oswald testified that the BMO Mortgage records relied on by Alexandra regarding the Mortgage Extension Period were verifiable and authentic, but this was established by Mr. Haer, the custodian of the BMO records.
[68] Ms. Leggio stated, and Mr. Oswald conceded that the evidence presented by the parties does not allow for the tracing of the payments made at the time of the 1994 acquisition of the Property or during the five-year term of the BMO Mortgage. Regarding the Mortgage Extension Period, Ms. Leggio testified that the banking records produced by Alexandra do not show the source of the mortgage payments but rather only that the BMO Mortgage was paid, and that there was insufficient evidence to trace the payments for the Property to the payor.
She testified that the tracing of the payments would require both the bank account statements from which the payments were made and the MortgageLoan Ledgershowing the payments. Mr. Oswald agreed that the bank records for the Mortgage Extension Period do not show the source of the payment.
[69]Both experts stated that Paul and Bessie’s income,as set out in their income tax returns, showed that they have sufficient after-tax income in the years 1996 to 2001 to contribute toward payment of the BMO Mortgage. Mr. Oswald testified that Alexandra could have managed the BMO Mortgage payments during its five-year term presuming acceptance of Alexandra’s evidence that she earned $19.20 per hour, with an estimatedannualgross income from 1994-1999 in the amount of $34,099.00. This is consistent with Alexandra’s evidence that she earned about $36,000.00 annually.
[70]The expert evidence of Mr. Oswald and Ms. Leggio did not diverge on the material points that the parties did not produce sufficient banking records to allow for attribution of Property payments, and that the only available banking records were for the Mortgage Extension Period,and they did not show the source of payments. The experts’ evidence was also consistent that if I accept the parties’ evidence of their income levels from 1994 to 2001, they each had sufficient funds to contribute to payment of the BMO Mortgage.
B.Analysis of Alexandra’s Evidence on Payment of the Property
(a)Were the Huntingdale Condo Funds a Gift to Bessie or a Loan?
[71]The cornerstone of Alexandra’s case regarding the payment on acquisition of the Property in 1994 was that Alexandra had the financial means to pay the down payment and the BMO Mortgage and Bessie did not. Alexandra and Peter both say that the proceeds received by Bessie from the sale of the Huntingdale Condo ($34,786.33) were applied to payment of the down payment ($48,225.00). Alexandra contended that this constitutes her contribution to the down payment, as the funds were returned to her by Bessie in repayment of a loan,and Paul maintained that these funds represent Bessie’s contribution to the down payment. This calls for a determination of whether the funds provided by Alexandra and John to Bessie for use in the purchase of the HuntingdaleCondo were a gift from Alexandra to Bessie or a loan.
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UNITED STATES v. CORNELSEN (2018)
In January 2016, a grand jury indicted Cornelsen on ve counts of wire fraud. The indictment charged Cornelsen with defrauding MVT of $297,985.13 through unauthorized wire transfers made between January 2013 and February 2015.
At trial, David Oswald, a forensic accounting expert, testied regarding an audit of Cornelsen's corporate activities. The audit estimated Cornelsen defraudedMVT of a total of $1,453,025.42. Accordingly, the government presented evidence of uncharged, yet related conduct, including unauthorized, non-businessexpenditures made using manual checks and a company credit card. In November 2016, a jury found Cornelsen guilty on all ve counts of wire fraud.
The Presentence Investigative Report recommended the court nd an actual loss amount of $1,150,320.09 for purposes of determining the base offense levelunder United States Sentencing Guidelines § 2B1.1. At sentencing, Special Agent Kevin Kohler, a certied public accountant, testied to the calculations. Kohlerused the E & Y audit's $1,453,025.42 calculation as a baseline and recommended the court (1) remove a $206,250.00 personal loan that did not appear to befraudulent, (2) remove $321,846.75 in potentially ambiguous vehicle expenditures, and (3) include a $225,391.42 unauthorized cash bonus from November 2012.After making certain credibility ndings and determining the audit to be a “very conservative” estimate of the actual losses, the district court adopted therecommended loss calculation of $1,150,320.09.
The court then turned to restitution, awarding $1,150,320.09 in losses, as well as $250,000.00 in attorney andaccountant fees, for a total restitution award of $1,400,320.09.Cornelsen appeals the district court's calculation of the loss amount and restitution award, arguing any amount over the $297,985.13 stated in the indictment,and any conduct outside of the time period stated in the indictment, cannot be included in either calculation.
Cornelsen also argues MVT is not a “victim” underthe Guidelines or the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A(a)(2).Turning rst to the calculation of the loss amount, we review the district court's interpretation of the term “loss” under the Guidelines de novo, United States v.Fazio, 487 F.3d 646, 657 (8th Cir. 2007), and its factual ndings for clear error, United States v. Bolt, 782 F.3d 388, 390 (8th Cir. 2015).
We grant “deference to thedistrict court's loss calculations because of its unique ability to assess the evidence and estimate the loss,” Fazio, 487 F.3d at 659 (citations omitted), and requirea “reasonable estimate of loss rather than a precise determination,” United States v. Farrington, 499 F.3d 854, 860 (8th Cir. 2007). The government must establishthe loss amount by a preponderance of the evidence. Id. at 859.
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Justice Doi Galea v Galea Endorsement (2022)
Mr. Oswald’s Expert Report
As set out below, I am satisfied that Mr. Oswald’s expert report dated May 20,2022 should be admitted to assist the court in determining the Applicant’s income forchild and spousal support on the motionDuring the May 17, 2022 attendance, the Respondent advised through counselthat her expert, Mr. Douglas, was on vacation until May 15, 2022 and thus had beenunable to review the new disclosure which the Applicant had produced on April 28, 2022.Following his vacation, Mr. Douglas was unable to review the new disclosure and updatehis draft report with substantive content due to his other work obligations.
As a result,Mr. Douglas could only “finalize” his expert report by signing the final version and an acknowledgement of his duty as an expert by May 21, 2022 when the Respondent’s sur-reply evidence was due. In turn, the Respondent quickly retained another expert witness, David Oswald, a CPA and forensic accountant, for an analysis of the Applicant’s 2019-2021 bank and credit card statements in the new materials disclosed on April 28, 2022.As part of her sur-reply evidence, the Respondent delivered Mr. Oswald’s expert reportdated May 20, 2022 with his resume and signed acknowledgement of his expert duty.
There are two (2) steps in assessing the admissibility of expert evidence. The first step considers whether the proposed expert evidence will satisfy the following thresholdr equirements: a) the evidence must be logically relevant, b) the evidence must be necessary to assist the trier of fact, c) the evidence must not be subject to any other exclusionary rule, and d) the expert must be property qualified, which includes the requirement that the expert be willing and able to fulfill the expert’s duty to the court to provide evidence that is,i) impartial,ii) independent, andiii) unbiased.If the proponent of the evidence establishes the threshold for admissibility, the second stepis for the court to determine whether the potential benefits of admitting the evidenceoutweigh its potential risks, considering such factors as:a) Legal relevanceb) Necessity;c) Reliability; andd) Absence of bias.Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888 at paras82-83; R. v. Abbey, 2017 ONCA 640 at paras 48-49; White Burgess Langelle Inman v.Abbott and Haliburton Co., 2015 SCC 23 at paras 23-24 and 53.From the record, I am satisfied that
Mr. Oswald’s evidence regarding theApplicant’s income meets the threshold for admissibility. It is quite apparent from hisevidence that Mr. Oswald is an experienced Chartered Professional Accountant (Canada)and Chartered Accountant (South Africa) who has worked with leading accounting firmsand is well-positioned to discuss the nature and character of financial records and relatedinformation that should be considered in determining a person’s income.
Having regard to the content of Mr. Oswald’s May 20, 2022 report, I am satisfied that it is logically relevant to the key issue in dispute relating to the Applicant’s income for support, isnecessary to help the court to properly understand the financial evidence adduced by the parties, is not otherwise subject to an exclusionary rule, and is provided by a properly qualified expert witness in the field who is impartial, independent and unbiased as stated in his signed acknowledgment of expert’s duty dated May 20, 2022.
Accordingly, I am satisfied that Mr. Oswald’s evidence should be properly admitted as expert evidence.
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