Expert Witness Report
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.
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
