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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
------------------------------------
RICHARD E. GRAHAM, 91-CV-800
Plaintiff,
Buffalo, New York
-vs-
LARRY E. JAMES, October 14, l993
Defendant.
------------------------------------
TRIAL
BEFORE THE HONORABLE JOHN T. ELFVIN
UNITED STATES DISTRICT COURT JUDGE
APPEARANCES:
For the Plaintiff: DENIS A. KITCHEN, ESQ.
8340 Main Street
Williamsville, New York 14221
For the Defendant: JAMES OSTROWSKI, ESQ.
384 Ellicott Square Building
Buffalo, New York 14203
Court Recorder: JEANNE B. SCHULER
Transcription Service: ASSOCIATED REPORTING SERVICE
Lower Level One
120 Delaware Avenue
Buffalo, New York 14202
716-856-2328
Proceedings recorded by electronic sound recording. Transcript
produced by transcription service.
P R O C E E D I N G S
MR. OSTROWSKI: Your Honor, I'd like to call Mr.
Kenneth Helinski as our next witness.
(KENNETH C. HELINSKI, Defendant's Witness, Sworn)
THE COURT: You are.
THE WITNESS: Kenneth C. Helinski.
THE COURT: Spell the last name.
THE WITNESS: H-E-L-I-N-S-K-I.
THE COURT: H-E-L-I-N --
THE WITNESS: -- N-S-K-I.
THE COURT: Thank you. Take the witness chair.
Speak right into the microphone.
DIRECT EXAMINATION
BY MR. OSTROWSKI:
Q. Mr. Helinski, what do you do for a living now?
A. I publish CD Rom software.
Q. Under what company name?
A. Phoenix Publishing.
Q. Is it your --
THE COURT: Excuse me. What?
THE WITNESS: Phoenix Publishing.
BY MR. OSTROWSKI:
Q. Is that a D/B/A or a corporation?
A. A D/B/A.
Q. Do you know Richard Graham?
A. Yes, I do.
Q. And how do you know him?
A. I was introduced to him through Chuck Morgan about three
years ago. Richard was supposed to help me out developing some
CD Rom software that we were going to work on together.
Q. And did you actually reach an agreement with him as far as
working on that software?
A. Yes, I did.
Q. And what was the agreement?
A. Well, I was owning the business and Richard was going to
be my employee, and he would be responsible for development of
a search and retrieval front-end program. He would be running
a BBS to accumulate programs for the CD.
Q. When was that now that you reached that agreement?
A. That would be in October of 1990.
Q. And after the agreement was signed -- was it signed?
A. Yes, it was.
MR. KITCHEN: Well, Your Honor, I have an objection
to raise that's similar to the previous one. I mean, up until
this time we've had an agreement referred to as if it were an
oral agreement.
Now, suddenly we're faced with the question that's
answered in the affirmative, that an agreement was signed. So
obviously we've heard essentially a description of the contents
of an agreement, and yet we don't have the agreement itself.
MR. OSTROWSKI: I have it right here, Your Honor.
I'll just mark it as an Exhibit.
THE COURT: Objection withdrawn?
MR. KITCHEN: Pardon me, sir?
THE COURT: Objection withdrawn?
MR. KITCHEN: Yes, if he's going to --
THE COURT: Without prejudice.
MR. KITCHEN: Without prejudice
MR. OSTROWSKI: Mr. Wagner is in the courtroom.
Subject to any objection of Mr. Kitchen, I don't anticipate any
further testimony --
THE COURT: So what's wrong with his being here?
MR. OSTROWSKI: I just wanted to let Mr. Kitchen know --
THE COURT: Public proceeding.
(Agreement was marked Defendant Exhibit 14 for
identification.)
BY MR. OSTROWSKI:
Q. Showing you Defendant's Exhibit 14, can you identify that?
A. Yes, I can.
Q. And what is that?
A. That's the Employer-Employee Contract I had signed with
Mr. Graham.
Q. Does the Contract contain a restrictive covenant?
MR. KITCHEN: I'll object to --
THE WITNESS: Yes, it does.
MR. KITCHEN: -- utilizing the agreement unless it's
introduced into evidence, Your Honor.
MR. OSTROWSKI: I'm just asking him what's in it.
It's here. I'm not introducing it into evidence. If he wants
to.
THE COURT: Why would you not introduce it?
MR. OSTROWSKI: Because there's essentially -- that's
the only particular clause I'm interested in. I mean, I'll
offer it into evidence.
THE COURT: It doesn't seem to be very voluminous.
We've had --
MR. OSTROWSKI: No, it's not.
THE COURT: -- much more voluminous Exhibits received
in evidence.
MR. OSTROWSKI: I'll offer it into evidence.
MR. KITCHEN: Well, then, I will object, unless I
have an opportunity to see it.
THE COURT: Well, see it. Take a look at it.
MR. KITCHEN: May I have some voir dire, Your Honor,
on this?
THE COURT: Sure.
VOIR DIRE EXAMINATION
BY MR. KITCHEN:
Q. Mr. Helinski, this Exhibit 14 is seven pieces of paper
stapled together. When did you last see this particular set of
pieces of paper?
A. Those were signed in October --
Q. I didn't ask you when they were signed. What I
specifically asked you is, when was the last time, other than
a few moments ago when Mr. Ostrowski showed them to you, did
you see these pieces of paper?
A. I had those in my possession.
Q. Okay.
THE COURT: Excuse me? You had them in your
possession?
THE WITNESS: Yes.
THE COURT: In a file someplace?
THE WITNESS: Yes.
THE COURT: When did you dig them out for this
purpose?
THE WITNESS: When I was asked to come here as a
witness.
THE COURT: When was that?
THE WITNESS: About a week, a week and a half ago.
THE COURT: Then you dug it out of your file?
THE WITNESS: Yes.
THE COURT: What did you do with it then?
THE WITNESS: Well, then, I had an appointment to see
Mr. Ostrowski and I brought my papers with me at that time.
THE COURT: Did you leave them with him?
THE WITNESS: Yes.
BY MR. KITCHEN:
Q. And that was about a week ago?
A. Yes.
Q. And these particular six pieces of paper were the exact,
or excuse me, seven pieces of paper, were the exact same pieces
of paper that you left with Mr. Ostrowski?
A. Yes.
Q. Okay. Was that the only copy you had of the Employment
Agreement?
A. Yes.
Q. Okay. So I take it then you do not have a copy with any
original signatures?
A. Not in my possession.
Q. Okay. Well, who has a copy with original signatures in
your possession?
A. The attorney that drew up the original Contract.
Q. Who might that be?
A. It was the attorney in the Cathedral Park Tower,
Vincennes, I believe.
Q. Who?
A. Mr. Vincennes.
Q. Vincennes?
A. I believe that's his name.
Q. And he's the one who actually drafted the contract?
A. Yes.
Q. And the particular copy you had, did it have a staple here
in the corner, like this one?
A. Yes.
Q. Okay. And --
MR. OSTROWSKI: Your Honor, I don't mean to
interrupt, but at this time I'd like to withdraw the question
and withdraw the motion to enter the Exhibit, as this is
seemingly going to go on forever. I'm simply withdrawing my
motion -- I'm withdrawing the question about the restrictive
covenant and I'm withdrawing the motion to enter it as an
Exhibit.
MR. KITCHEN: Well, the only request I would have
then is to strike any questions and answers regarding the
contents of the agreement.
THE COURT: Of which there hasn't been any yet.
MR. KITCHEN: Well, I think there was preliminary to
its offering, but they were limited.
MR. OSTROWSKI: Well --
THE COURT: All I have is, there is an Employer-
Employee Agreement between Mr. Helinski and Mr. Graham.
MR. KITCHEN: All right.
THE COURT: I don't even have a date or anything
about the contents. All right. Offer withdrawn.
CONTINUED DIRECT EXAMINATION
BY MR. OSTROWSKI:
Q. When did you reach the agreement with Mr. Graham?
THE COURT: Now you're going back into the agreement.
MR. OSTROWSKI: Is there an objection to --
MR. KITCHEN: Yes, there is an objection.
MR. OSTROWSKI: On what grounds?
THE COURT: Well, it seems to me if you're going to
talk about an agreement and you have a copy of it, admittedly
not the signed copy, that that's the best evidence, or at least
better evidence than somebody remembering what is in it. Isn't
it?
MR. KITCHEN: Well, yeah. Right.
MR. OSTROWSKI: Well, why don't we continue then.
I'll re-offer it into evidence then. I was just trying to save
a little time.
THE COURT: All right. And then we'll go back on --
MR. OSTROWSKI: I was only going to ask one question.
THE COURT: -- re-voir dire.
0 MR. OSTROWSKI: I was only going to ask one question
explicitly about the contents of the contract. That's why I
shifted gears a little bit. But let's continue.
VOIR DIRE EXAMINATION
BY MR. KITCHEN:
Q. I think the last question here is, we were asking whether
this particular set of seven pieces of paper were stapled
together when you kept it, and I believe your answer was that
they were?
A. Yes.
Q. Didn't you notice though when Mr. Ostrowski approached
you, and before he handed you this Exhibit 14 that he in fact
stapled this document in the corner, didn't he?
A. Yes.
Q. And if you'll closely examine Exhibit 14 and look not only
on the front but also on the back, doesn't it appear that that
staple is the only staple that's been through those seven
sheets of paper, wouldn't you agree?
A. Yes, I would.
Q. So therefore, since your particular copy, your particular
seven sheets of paper had a staple in it, and we know that the
staple that's in this Defendant's Exhibit 14 is a new staple
just inserted by Mr. Ostrowski, isn't it correct that these
particular seven pieces of paper, although they look a great
deal like what you brought in to Mr. Ostrowski, are not in fact
0the same seven pieces of paper that you did bring him, isn't
that true?
A. Well, they could be copies of them.
Q. They could be.
THE COURT: In other words, he might have made a copy
of what you brought in and then today stapled the copy --
MR. KITCHEN: Right.
THE WITNESS: Yes.
THE COURT: -- together.
BY MR. KITCHEN:
Q. And in fact when --
THE COURT: And in which case, where is what he
brought in, but --
MR. KITCHEN: Yes.
BY MR. KITCHEN:
Q. Where is the, where are the seven pieces of paper that you
brought to Mr. Ostrowski, Mr. Helinski?
A. I have a copy in my folder that I had with me.
Q. Oh, so there is another copy. Can we see the folder that
you brought with you?
A. Yes.
Q. Where is your folder? Could you get your folder?
MR. KITCHEN: I'll mark this, Your Honor.
THE COURT: The folder.
MR. KITCHEN: I'm marking a manila folder, Your
Honor, as Plaintiff's Exhibit number 52, and I'll ask the
witness --
BY MR. KITCHEN:
Q. -- is this manila folder the folder that you brought to
Court with you?
A. Yes, it is.
MR. OSTROWSKI: Well, I object to the marking of a
folder. We're talking about a document here.
THE COURT: How can you object to the marking of a
folder?
MR. OSTROWSKI: Because he's -- I object to the
examination of any contents of the witness, who's my witness,
as to anything except the contract. He's rummaging through
personal papers of Mr. Helinski. It's a red herring, I might
add. The whole thing is a red herring.
MR. KITCHEN: Now, Mr. Ostrowski is representing Mr.
Helinski, I take it.
THE COURT: Go ahead.
BY MR. KITCHEN:
Q. Well, Mr. Helinski, the document just inside the folder,
which is Plaintiff's Exhibit 52, is a copy of this employment
agreement?
A. Yes, it is.
Q. Now, this particular copy of the employment agreement
that's contained in this folder, Plaintiff's Exhibit 52, has
been stapled?
A. Yes, it has.
Q. Okay. And it previously was apparently stapled or it has
other holes in it, too?
A. Yes. Well, this was a copy that I had gotten from the
attorney when the agreement was signed.
Q. This particular copy?
A. Yes.
Q. Well, how about the copy that you gave to Mr. Ostrowski,
was the copy that you gave to Mr. Ostrowski the one you got
from the attorney, or is it this particular copy that we've
taken out of the folder, Plaintiff's Exhibit 52?
THE COURT: Well, let's see. What, Mr. Helinski, do
you remember at all whether or not you made a copy of what was
in your file and gave that copy to Mr. Ostrowski?
THE WITNESS: Yes, I did make a copy.
THE COURT: All right. And had your copy in the file
been stapled before you took it apart to make --
THE WITNESS: Yes.
THE COURT: All right.
THE WITNESS: I took the staple out to make the copy
so I wouldn't fold the corners over.
THE COURT: Right. Because that would show that you
were making a copy of something.
THE WITNESS: Right.
THE COURT: And as a matter of fact, the copy itself
then should show staple holes.
THE WITNESS: Yes. It does appear in the upper
corner.
THE COURT: Right.
MR. KITCHEN: Okay.
BY MR. KITCHEN:
Q. As a matter of fact, Exhibit 14, the employment agreement
then, is a copy that was made from the copy you provided?
A. Yes.
Q. And when you provided it, you made a copy first, right?
A. Yes.
Q. And you took the staple out?
A. Yes.
Q. That's why there are more staple holes in this particular
copy?
A. Yes.
Q. Okay.
THE COURT: Pictures of staple holes.
MR. KITCHEN: Yes.
BY MR. KITCHEN:
Q. Then perhaps, Mr. Helinski, you can explain to me if you
took the staple out before you copied it, why Exhibit 14
contains a clear photocopy of a staple that was still in the
document?
A. Because I photocopied the first page, and then when I
folded the corner over, I realized that I would be bending the
corner, and at that point, it's when I took the staples out,
the staple out rather.
Q. Okay. And can you explain why page 2 has some
discoloration up in the upper corner.
THE COURT: Which upper corner?
MR. KITCHEN: Up in the upper left hand corner, that
doesn't appear on the other copy that you have.
THE WITNESS: Because the copies were laying flat in
the machine, and when I was reading through the agreement I had
been folding the previous pages over. Therefore, it wouldn't
be laying flat against the glass when you make your photocopy.
BY MR. KITCHEN:
Q. Do you have any other copies of any other agreements or
writings that were created by this particular attorney who
created this document at about the same time?
MR. OSTROWSKI: Objection to relevance.
THE COURT: He may answer.
MR. OSTROWSKI: Particularly on voir dire.
THE WITNESS: No, I do not.
BY MR. KITCHEN:
Q. Did -- was there more than one version of the employment
agreement prior to its being signed?
A. There was no previous copy. I had spoken with Richard
about what our relationship would be, responsibilities,
compensation, and then I took those notes to the attorney, and
from that, that's what he drafted the contract from.
Q. Well, I guess what I'm asking, is there, was there, was
there any disagreement about the terms of the agreement between
you and Richard?
A. No, not up until that point.
Q. Not up until that point. Up until the point of signing?
A. No. The only thing that Richard had objected to is when,
in the contract there is a mention to use a BBS that would be
maintained for company use. And at that time he was running
his own personal BBS, and that was the only point that was
mentioned.
Q. Well, how about the amount of the gross profit that he was
supposed to be receiving, the percentage?
A. The 15%, that was a pre-agreed upon amount.
Q. That was a point of discussion between yourself and
Richard?
A. Yes.
Q. And --
A. Because he wanted it on a gross basis, and I wanted to go
on net, but being that I had, you know, I wanted to be fair
with him. I settled to give him a gross percentage.
Q. Wasn't there a discussion of the percentage of being 25%?
A. No, there wasn't.
Q. There was no discussion of 25%?
MR. OSTROWSKI: Objection. This is beyond the scope
of voir dire on an admission into evidence.
MR. KITCHEN: Well --
MR. OSTROWSKI: He's cross examining the witness now.
MR. KITCHEN: Your Honor, I -- the reason for such an
extensive voir dire is because there is some dispute about the
authenticity of this particular document. I'm not just trying
to be obstructionist about documents in general.
THE COURT: Is there any question about whether what
has been marked as being a true copy of what is in Mr.
Helinski's file?
MR. KITCHEN: Well, there does not appear to be an
issue of whether or not Exhibit 14 is, appears to be --
THE COURT: Exhibit 52?
MR. KITCHEN: -- appears to --
THE COURT: Or, Exhibit 14. I'm sorry.
MR. KITCHEN: Right. It appears to be consistent
with what, without reading it line by line, but it appears to
be consistent what, with what the copy was in Exhibit 52, the
folder brought here by Mr. Helinski.
THE COURT: Well, I suppose we could handle it by
reserving to you the right to, as we end today, if Mr. Helinski
would lend himself to five minutes dallying here while you went
through the thing page by page. We could receive it on that
basis and if there's any problem we could iron it out.
MR. KITCHEN: We could, we could do that, Your Honor,
yeah.
THE COURT: All right. I'll receive it subject to
that.
(Defendant's Exhibit 14 received
in evidence.)
CONTINUED DIRECT EXAMINATION
BY MR. OSTROWSKI:
Q. Okay. What happened -- and what was the date of that
agreement?
A. October 26th, 1990.
Q. And what happened with the employer-employee relationship
after that?
A. Well, we were getting ready to go to a Comdex show in Las
Vegas. Comdex is a very large computer show. And I had made
arrangements to be an exhibitor out there. I had paid for a
booth. I paid for transportation out there, a hotel, and you
know, meals.
THE COURT: You mean for both of you?
THE WITNESS: Yes.
THE COURT: Yes.
THE WITNESS: The total expenses --
THE COURT: How does this respond to the question,
what if anything happened to the relationship?
THE WITNESS: Oh, I'm getting to that, Your Honor.
BY MR. OSTROWSKI:
Q. What did -- well, I guess what I'm asking, Your Honor, is,
what, what did the two of you do together in furtherance of
this enterprise?
A. Well, we were trying to get the business developed, and
then during the last day of the trade show, you know, Mr.
Graham had left the exhibit early and went back to the hotel
and taken leads that we had accumulated from the whole week, I
would say maybe 800 to 900 leads, and approximately $7,000 cash
that was taken out of the hotel room. And he had come back to
Buffalo on his own and pretty much taken the whole business
that I had been trying to establish up until that point.
Q. What about equipment that -- was there equipment in the
company?
A. Yes, there was.
Q. What kind of equipment?
A. There was a Northgate computer system, a 486 25 megahirt
system, a Micropolis 675 meg full height hard drive.
Q. Was -- okay. Slow down. With respect to the computer,
whose computer was that?
A. That was paid for by the company.
Q. Okay. With whose funds?
A. The company's funds.
Q. Well, and who owned the company?
A. I did.
Q. Okay. And that was your computer?
A. Yes. I had paid for it, and I agreed to let Richard use
it to develop the CD Rom software.
Q. And where is the computer today?
A. I do not know. I believe it's in Richard's possession.
MR. KITCHEN: Objection.
BY MR. OSTROWSKI:
Q. Why do you believe that?
THE COURT: If you don't know, you don't know.
BY MR. OSTROWSKI:
Q. Well, when is the last time you saw the computer?
A. In October of 1990.
Q. Where?
A. At Richard Graham's house at 219 Potomac Avenue.
Q. Okay. Did the relation -- business relationship terminate
after the Comdex show?
A. Yes, it is.
Q. When -- did you identify the date of that show, by the
way?
A. It was like the first week of November 1990.
Q. Was there any other equipment that was owned by the
company that was in Mr. Graham's hands at that time?
A. Yes. We had two CD Rom drives and a high speed 14.4 bond
modem, and there was a four color 24 pin dot matrix printer.
Q. And were those in Mr. Graham's custody?
A. Yes.
Q. And did you ever get them back?
A. No, I did not.
Q. Did you fail to pay Mr. Graham any wages or profits that
were due to him during the time he worked?
A. Well, I was trying to get the business started.
MR. KITCHEN: Objection. Not responsive.
THE COURT: Just yes or no.
THE WITNESS: No, I did not pay him.
BY MR. OSTROWSKI:
Q. Are you familiar with Mr. Graham's reputation?
A. Yes, I am.
Q. And how are you familiar with that?
A. Well, just from my own personal experience, I found him to
be very deceitful.
THE COURT: That's not his -- that's not having any
knowledge of his reputation.
BY MR. OSTROWSKI:
Q. Well, what I'm asking you is, have you spoken to people
about Mr. Graham?
A. Yes, I have.
Q. And his reputation?
A. Yes.
Q. Okay. And have you become familiar with his reputation?
And what kinds of people are these? Are these members of the
general public? Are they --
THE COURT: Wait a minute. Just let him answer the
question.
MR. OSTROWSKI: I'm sorry. Members of --
THE COURT: Let him answer the question.
THE WITNESS: Yes, they are.
MR. OSTROWSKI: Okay.
THE COURT: Well, the question was, what kind of
people were they? He started putting words in your mouth, and
I tried to bring them back out of his mouth, and then you
answered that question. What kind of people were they?
THE WITNESS: Just general friends that I had met
that had at one time or another been friends with or had known
Mr. Graham.
BY MR. OSTROWSKI:
Q. Okay. And what is Mr. Graham's reputation in the business
community?
MR. KITCHEN: I'll object, Your Honor. There's not
an adequate foundation laid to, to establish that. We don't
know who these people are. We don't know how many of these
people are, and --
THE COURT: I'm satisfied. He may answer.
BY MR. OSTROWSKI:
Q. What is Mr. Graham's reputation in the business community?
A. He doesn't have any business ethics.
THE COURT: Any what?
THE WITNESS: No business ethics.
THE COURT: Now, everybody has business ethics. Some
are bad ethics. Some are good ethics.
THE WITNESS: Well, in Mr. Graham's case they would
be bad.
BY MR. OSTROWSKI:
Q. Is there anything else about his reputation that you can
tell us?
A. He's been known to be underhanded in his dealings with
people. He's a back stabber. He uses people for his own
benefit. Yeah, he's basically out for himself. He doesn't
care, you know, who he has to step on or use or abuse, as long
as he gets what he wants out of them, and then he throws them
away.
Q. I want to show you Plaintiff's Exhibit 1, and can you
identify this as anything you've seen before?
A. Yes, I can.
Q. And what can you tell us about that document from -- that
Exhibit, what is it?
A. It's our first CD Rom product that we were jointly
working on together.
Q. Okay. And --
MR. KITCHEN: Which Exhibit was that?
THE COURT: Plaintiff's 1.
MR. OSTROWSKI: It's Plaintiff's 1.
BY MR. OSTROWSKI:
Q. And when you say we, who do you mean?
A. Myself and Mr. Graham.
Q. Okay. And who is the owner of the CD Rom, Plaintiff's
Exhibit 1?
A. That would be a Company Exhibit from CARRS. That was our
joint venture that we were working on together.
THE COURT: Now, there wasn't any company as such,
was there?
THE WITNESS: I had a D/B/A.
THE COURT: D/B/A.
THE WITNESS: Yes.
THE COURT: This means an individual, or two
individuals, doing business as.
THE WITNESS: Yes.
THE COURT: It was you then.
THE WITNESS: Yes.
THE COURT: All right.
THE WITNESS: I was in the process of incorporating
at that time.
THE COURT: But you weren't incorporated.
THE WITNESS: No.
THE COURT: Okay.
BY MR. OSTROWSKI:
Q. You were the owner of the D/B/A?
A. Yes.
Q. Okay. And can you identify Plaintiff's Exhibit number 2?
A. Yes. That would be our second release.
Q. When you say our, you mean the -- what do you mean?
A. That would be our project between Mr. Graham and myself
that we were working on.
Q. In the company owned by you?
A. Yes. Because I have ownership of this post office box
here.
Q. Yeah. I was going to ask you.
A. Box 257. I do have, I still retain ownership of that box
number.
Q. Okay. That's your P.O. Box listed on there?
A. Yes.
Q. Now, let me show you -- let me show you Plaintiff's
Exhibit 3 and ask you if you can identify that, and feel free
to open it up if you want, take the disk out.
A. Well, just looking at the address on it, it would be Mr.
Graham's first disk that he did on his own, using my company
name.
Q. You said that's Mr. Graham's product?
`A. Yes. It has his residential address on there of 219
Potomac.
Q. Okay. How is the -- what's the company name on
Plaintiff's 3?
A. CARRS, C-A-R-R-S.
Q. Is there any difference between that name and the name on
Plaintiff's 1 and 2?
A. All he did on the name was eliminate the periods between
the letters. CARRS was an acronym I had established for
Computer Assisted Records Retrieval System.
Q. Do you know Larry James?
A. Yes, I do.
Q. How have you known him, how long -- I'm sorry. How long
have you known him?
A. About two weeks.
Q. Two weeks?
A. Total. He had contacted me regarding proceedings with
this trial.
Q. Okay.
MR. OSTROWSKI: No further questions.
CROSS EXAMINATION
BY MR. KITCHEN:
Q. Mr. Helinski, have you been known by any other names?
A. I use a business name of Ken Anderson.
THE COURT: Of what? Kenny Anderson?
THE WITNESS: Yes.
BY MR. KITCHEN:
Q. When do you use that?
A. It's a business name that I use as a way of just being in
contact with people.
Q. I see. So you've filed a business certificate, a D/B/A
for that name?
A. No, I did not.
Q. So there is no, there's no public record that indicates
that Kenneth Anderson is in fact Kenneth C. Helinski?
A. Correct.
Q. So somebody dealing with you as Kenneth Anderson might not
know that's your real identity, right?
A. That's correct.
Q. Have you ever been convicted of a crime?
A. No, I haven't.
Q. Okay. Even in the State of Florida?
A. No, I have not.
Q. When did you incorporate?
A. I was in the process of incorporating --
THE COURT: Did you ever incorporate?
THE WITNESS: I had started the proceedings to, yes.
THE COURT: Never incorporated?
THE WITNESS: No.
THE COURT: All right.
BY MR. KITCHEN:
Q. Do you -- are you an officer in any corporation?
THE COURT: He had never incorporated he said.
MR. KITCHEN: I see.
THE COURT: Started to, but never did.
BY MR. KITCHEN:
Q. Have you ever represented yourself as being an officer of
a corporation?
A. No, I did not.
Q. Okay. Have you ever held out your business as being an
incorporated business?
A. No, I did not.
Q. Are you acquainted with Computer Assisted Records
Retrieval Systems, Inc.?
A. Yes, I was.
Q. And that is a corporation, right?
A. That's a business I had started the corporation filing as.
Q. So you did incorporate.
THE COURT: Wait a minute. That was the one -- was
that a name you intended to incorporate under?
THE WITNESS: Yes. I had started filing for it as a
corporation.
BY MR. KITCHEN:
Q. When did you do that?
A. That was at the beginning of October 1990.
Q. But you never incorporated?
A. I never finished the prodject no, because of what happened
in Las Vegas, I decided to withdraw my filing --
Q. Never mind what happened in Las Vegas. I just asked you
whether --
MR. OSTROWSKI: Excuse -- I object to interrupting
the witness.
MR. KITCHEN: Well, I --
THE COURT: It's not responsive. I'll allow the
interruption.
BY MR. KITCHEN:
Q. Well, didn't you indicate to other people that in fact you
had incorporated?
A. I had indicated that I was in the process of
incorporating.
Q. Well, didn't you identify yourself from time to time as an
officer of a corporation?
A. Well, if I'm going to be incorporating, I would be a sole
stockholder, yes.
Q. Well, that's a yes or no kind of question. So the answer
is yes?
A. Yes.
Q. Okay. And what office did you represent yourself as
having?
A. As the president.
Q. Okay. And that would be president of what?
A. Of Computer Assisted Record Retrieval Systems.
Q. Okay. Now, who would have been the owner of that
corporation if the corporation had been incorporated?
A. I would have been the owner of it, and had things worked
out. I was considering giving Mr. Graham a partnership on it.
Q. You were going to give him a partnership?
A. Yes.
Q. What -- were there any other officers to be in this
corporation?
A. Not at the time that I was incorporating.
Q. And were you going to be the sole stockholder of the
corporation?
A. Yes. Up until the time that I would have made a partner
with Mr. Graham.
Q. And were you going to be the sole director of the
corporation?
A. Yes.
Q. Okay. And was there anybody else who had a financial
interest in this corporation that was going to be formed?
A. I had taken out two personal bank loans that I was
responsible for paying, and I wasn't able to pay for them, on
account of that the money that we were trying to make in Las
Vegas was stolen from me.
Q. Which bank?
A. M&T.
Q. How much were those loans?
A. Approximately $35,000.
Q. Now, you indicated that you spoke to a number of people
and, to make yourself aware of the reputation of Mr. Graham.
Who did you speak to?
A. I had spoken with Patrick Michalek. I had spoken with a
number of business dealers that I have contact with.
Q. Who would that be?
A. One would be Chris Young at Super Computer Products in
Tampa, Florida, Steve Peskiatis at S&S Publishing in LaMont,
Illinois.
Q. What was that name again?
COURT RECORDER: Spell that first name, please?
THE WITNESS: M-I-C-H-A-L-E-K.
BY MR. KITCHEN:
Q. Where is he located?
A. He's in Depew, New York.
Q. And how was he acquainted with Mr. Graham?
A. Patrick had mentioned that he had spoken with Mr. Graham
a couple of times during telephone conversations.
Q. All right. And after Chris Young you had the name of
somebody else?
A. Yes. Steve Peskiatis.
COURT RECORDER: How do you spell that?
THE WITNESS: P-E-S-K-I-A-T-I-S.
BY MR. KITCHEN:
Q. Okay. And who else?
A. Let's see, Jeff Timmey, T-I-M-M-E-Y.
Q. And, and what's Jeff Timmey?
A. He's the purchasing director for Megahouse Drives in
Houston, Texas.
Q. And who else?
A. Those are the names that come to mind first.
Q. Okay. So those are the people with whom you had
conversations?
A. Yes.
Q. And these were directly between you and these people?
A. Yes.
Q. And those people are the ones who told you that Mr. Graham
had no business ethics or that his business ethics were bad?
A. Yes.
Q. And they also told you he was a back stabber and out for
himself?
A. Yes.
Q. And at some time did you resign or give up your office as
the president of this corporation that was not yet
incorporated?
A. No, I didn't --
MR. OSTROWSKI: Objection to the question. There's
no corporation and you're asking about a corporation. He's
trying to confuse the witness, Your Honor.
THE COURT: I know, but sometimes a lay person
doesn't quite all understand that. He may answer on the basis
of his misunderstanding.
MR. KITCHEN: You can answer.
THE WITNESS: Oh. No, I did not.
BY MR. KITCHEN:
Q. Do you recall -- well, you were at the Comdex in November
of 1990?
A. Yes.
Q. Do you remember if that was the beginning or the end of
November?
A. It was in the early part, about the first week, I believe.
Q. And when did you return back from Las Vegas?
A. The trade show was Monday through Friday, and we came back
Friday evening.
Q. Okay.
A. We returned back to Buffalo.
Q. When you say we, did you all go to Las Vegas together?
A. Yes -- well, no. Mr. Graham went on his own. I had a
previous appointment, but I did meet him in Las Vegas.
Q. How did you get to Las Vegas?
A. Airplane.
Q. And how did Mr. Graham get to Las Vegas, if you know?
A. Airplane.
Q. And did you go back the same way?
A. Yes. We both flew back, but we were on two different
flights.
Q. Okay. Did you leave at or about the same time?
A. Well, it was Friday night, and we both left at
approximately the same time.
Q. So you went to Las Vegas unaccompanied, correct?
A. Yes.
Q. And Mr. Graham went to Las Vegas unaccompanied?
A. Yes.
Q. Did you stay in the same hotel?
A. Yes.
Q. Did you stay in the same hotel room?
A. Yes.
Q. And there was no one else there with you?
A. Not that time, no.
Q. Okay. How many times did you go -- did you and Mr. Graham
go to the Comdex in Las Vegas?
A. Well, we were there every day for the five days that the
show was in progress.
Q. Okay. Yes, but I asked about whether you were accompanied
or not. You said, not that time. So I'm asking for other
times when you and Mr. Graham had gone to Las Vegas to go to
the Comdex.
THE WITNESS: I don't understand the question, Your
Honor.
THE COURT: Don't know it, don't answer it then.
BY MR. KITCHEN:
Q. Well, my previous question to you then, that, were you
there, were you and Mr. Graham there just alone, or just the
two of you?
A. Yes.
Q. And your answer was yes, that time?
A. Yes.
Q. Was there another time when you were there and somebody
else was there?
A. Yes, there was.
Q. And when was that?
A. That would have been, let's see, a couple of evenings was
another party that had come up to the room to discuss business
with us.
Q. And who was that?
A. I don't recall the name of that individual.
Q. Okay. And where was he from?
A. He was one of the dealers that we had been trying to put
together a business relationship with.
Q. Okay. Was there anybody else there during the period of
time that you were there that was from, from Buffalo?
A. Yes, there was.
Q. There was?
A. Yes.
Q. Were they there at the same time you were there?
A. They were there for the show, yes.
Q. Okay. And were they there in connection with your
business?
A. I believe they were working with us at that time, yes.
Q. Oh, you think they were?
A. Yes.
Q. But you're not sure?
A. No, I'm not.
Q. Okay. So --
A. He was not actually working actually at our exhibit that
we had set up there.
Q. Oh, he was working at some other exhibit?
A. Yes.
Q. Okay. What exhibit was he at?
A. He was going around the floor trying to pick up business
contacts for our product.
Q. Oh.
A. So he actually wasn't in any one spot at any time.
Q. Well, let me ask you, why was he there at the Comdex? Was
he there for the benefit of your business?
A. Yes. He was there to help try to get leads for us.
Q. Oh. Now, are you sure that that's why he was there or,
because you seemed very unsure before, whether he was even
there or not?
A. Well, I believe that's what his intent was. I wasn't
babysitting him the whole week that I was there.
Q. Okay. And how long was he there?
A. I believe he was there a full week.
Q. And how did he get there?
A. That I don't know.
Q. So he just appeared?
A. Yes.
Q. And how did he leave?
A. That I don't know.
Q. He just disappeared. And what was this strange
individual's name?
A. Louis Manze.
Q. Who?
THE COURT: Excuse me?
THE WITNESS: Louis Manze.
BY MR. KITCHEN:
Q. Louis Manze?
A. Yes.
Q. And is Louis Manze from Buffalo?
A. East Aurora.
Q. East Aurora. And did --
THE COURT: One more minute today.
MR. KITCHEN: Well, I've got a lot more minutes to
ask.
THE COURT: I understand you have. I'm just warning
you.
MR. KITCHEN: All right.
BY MR. KITCHEN:
Q. Did you know Mr. Manze was going to be there, or did he
just appear unannounced?
A. I had informed him prior to the show that I would be in
Las Vegas.
Q. I see. So you had no indication then that he was going to
be there?
A. No, I did not.
Q. He just appeared?
A. Yes. He -- we ran into each other at the show.
Q. All right. And you just bumped into each other?
A. Yes.
Q. Okay. And did he indicate to you his purpose for being
there?
A. Well, he had mentioned that he would like to help out
getting the business started by distributing business cards and
telling people about the product.
Q. Now, was there any particular reason why he might have an
interest in your business?
A. Well, he wanted to become a partner in it because I had
discussed it with him.
Q. I see.
A. And that was part of my, one of my reasons for making a
corporation, so that we could all, you know, have people work
to help out in different ways, that there would be something
tangible that we all could benefit from.
Q. I see. That, that who would benefit from?
A. Well, from the people that would be involved with the
corporation.
Q. No. Did you --
A. Myself and Mr. Graham.
Q. Did you use the name of an individual? Did I hear the
name Ralph mentioned?
A. No, I did not say Ralph.
Q. I'm sorry. I misunderstood. Did, did Mr. Manze -- so,
are you trying to say --
THE COURT: Whenever you hit a breaking point, and I
hope it's soon.
BY MR. KITCHEN:
Q. Did -- so Mr. Manze was essentially like kind of looking
for a job?
A. Yes. He was in between jobs at the time that he was in
Las Vegas.
Q. I see. So his only connection with your company then was
that he was out there trying to work himself into a job with
your company making contacts for you, is that right?
A. Yes.
Q. Okay. He had no --
THE COURT: All right. We have to end, gentlemen.
MR. KITCHEN: All right.
THE COURT: I don't know what your convenience is.
We'll work it out. We're going to resume tomorrow morning.
What time, Mr. Ostrowski?
MR. OSTROWSKI: Your Honor, I was unable to resolve
that matter. What time is the Court's conference?
THE COURT: Right now.
MR. OSTROWSKI: I mean tomorrow morning.
THE COURT: Well, you got this problem, you said you
hadn't worked out or something. Ordinarily, I would resume at
9:00 o'clock.
MR. KITCHEN: Well, if you just name another time.
10:00, 10:30. I don't know. Whatever.
MR. OSTROWSKI: Is there, does the Court have a
conference at 9:30?
THE COURT: Pardon me?
MR. OSTROWSKI: Does the Court have a conference at
9:30?
THE COURT: Ten minutes, yeah.
MR. OSTROWSKI: Well, what I'll try to do is, I'll
try to get another attorney to appear for me.
THE COURT: All right. Jeanne, thank you.
(Trial adjourned at 5:16 p.m. to 10-15-93 at 9:00 a.m.
2
I N D E X
Witness Dir Cross Redir Recr
Kenneth C. Helinski 3 27
Exhibit Ident. Evidence
Plaintiffs:
1 First CD ROM 25
2 Project 26
3 Disk 26
Defendants:
14 19
