Free Motion to Alter Judgment - District Court of Colorado - Colorado

Case 1:03-cv-01041-PSF-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01041-PSF-BNB UNITED STATES OF AMERICA, Plaintiff, v. DAVID B. ST. GERMAIN, and RANDY OVERLEY, Defendants.

Defendant Overley's Amended1 Motion to Alter or Amend the Judgment
The defendant Randy Overley, through his attorneys, Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., moves under Federal Rule of Civil Procedure 59(e) to alter or amend the judgment. 1. On September 21, 2005, the Court entered judgment against

This Amended Motion is being filed subject to the Court's disposition of Mr. Overley's simultaneously filed "Motion for Leave to File Amended Motion to Alter or Amend the Judgment." This Amended Motion contains these changes: Paragraph 15 was amended to include additional information bearing on the issues raised in this Motion.

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Mr. Overley in the amount of $75,397 plus interest. 2. Mr. Overley contends that not all of the items on which the judgment was based is properly creditable to Mr. St. Germain or, conversely, properly chargeable to Mr. Overley as unjust enrichment. 3. Plaintiff failed to carry its burden of proof; accordingly, the judgment should be amended to bar any relief to it. Plaintiff had the burden of proving that all the payments Mr. St. Germain claimed he made were in fact made by him. Specifically, plaintiff's unjust enrichment claim required that it prove that "`(1) at [his or her] expense, (2) the defendant received a benefit (3) under circumstances that would make it unjust for the defendant to retain the benefit without paying.'" Donchez v. Coors Brewing Co., 392 F.3d 1211, 1221 (10th Cir. 2005) (quoting Martinez v. Colorado Dep't of Human Servs., 97 P.3d 152, 159 (Colo. Ct. App. 2003)). 4. The evidence at trial was at best unclear about whether Mr. St. Germain paid for anything with money he owned or legally (or equitably) was entitled to spend. Most of the payments he made were in the form of checks drawn on a Dyman Properties, Inc., account. He admitted he had no right to use the Dyman Properties account. He admitted he forged Mr. Lambert's name or

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used Mr. Lambert's signature stamp on all the Dyman Properties checks at issue. Mr. Lambert testified that he had no idea why or how Mr. St. Germain used the account, which belonged to one William Pierce, and that Mr. St. Germain was not authorized to use the account or his signature. For his part, Mr. St. Germain testified that his alleged "share" of monies from Parker Place were placed in this account. Yet, Mr. Lambert testified that Mr. St. Germain had no ownership interest--and never had an ownership interest--in Parker Place. 5. As a matter of law, this evidence could not establish that Mr. Overley received a benefit at Mr. St. Germain's or plaintiff's (or Mr. St. Germain's crime victim's) "expense," Donchez, 392 F.3d at 1221. 6. Mr. St. Germain has no credibility when it comes to construction expenses he claims he paid for. No discussion of the construction expenses Mr. St. Germain claimed he paid should begin without recognition of his total lack of credibility on this subject. 7. As an initial matter, as this Court found, Mr. St. Germain "prevaricated numerous times" when he found it to his benefit to claim that facts existed when those facts would "support a finding that . . . additional payments were made toward the construction of the house by him or that the payments directly benefited defendant Overley." Transcript of Ruling, at 55. As the evidence
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demonstrated, Mr. Overley was largely unaware of what construction expenses Mr. St. Germain allegedly was incurring. Unless plaintiff is required strictly to carry its burden of proof, the prejudice to Mr. Overley is plain: Mr. St. Germain, a proven prevaricator, is permitted to testify in unrestrained fashion about tens of thousands of dollars he allegedly paid, all while knowing that every dollar he claims he paid is one dollar he will not be required to pay toward the restitution order, which he must pay fully before his probation can end. There is a plethora of evidence that, unrestrained, Mr. St. Germain has no hesitation about fabricating amounts he paid by (a) checks drawn on an account he doesn't own and on which he admittedly forged another's signature, (b) "cash" and (c) unknown credit cards. 8. Mr. St. Germain claimed that he paid Larry Overley more than $15,000 in "cash." Larry Overley disputed that, and this Court specifically found that Mr. St. Germain could not be believed with regard to the amounts he claimed to have paid Larry Overley. See Transcript of Ruling, at 53. The Court noted that even the receipts Mr. St. Germain submitted did not show a charge of greater than $11,221. Id. 9. Mr. St. Germain claimed that he paid Craig Mundt "$12,000" in the form of the notorious black Corvette. Yet, during cross-examination, Mr. St.
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Germain admitted that the title work for the Corvette did not show a 2001 sale to Mr. Mundt but to a couple in Loveland, Colorado, for "$8,000." Mr. St. Germain initially testified that it was his signature on the title work; then, realizing that the title work was wholly contradictory of his testimony that he sold the car to Mr. Mundt, Mr. St. Germain claimed that someone had "forged" his signature on the title. See generally id. at 54-55. 10. As the Court noted, Mr. St. Germain's own alleged "accountings," made under oath, were self-contradictory. See id. at 55. 11. As the Court's ruling suggests, Mr. St. Germain cannot be trusted to recall reliably who paid for what, and the Court should properly insist that the plaintiff carry its burden as to each amount Mr. St. Germain claimed. See generally at 53-55. 12. There is also the matter of plaintiff's delay in bringing this action. The government knew about the existence of the log home and Mr. St. Germain's and Mr. Overley's respective roles in its finance and construction no later than January 2000, after any conspiracy had "ended," id. at 63. Yet, plaintiff waited another three and a half years to bring an action. Even assuming laches is not a viable defense to avoid liability, the consequences of plaintiff's delay--e.g., loss of evidence or fading memories--should be chargeable to plaintiff.
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13. The judgment should be amended by subtracting $2,850 for the alleged reimbursement to Mr. Overley for "land purchase costs." The Court awarded this amount to plaintiff based solely on Mr. St. Germain's testimony that he paid Mr. Overley $475 for, Mr. St. Germain estimated, 6 months before the October 1, 1999, closing on the construction loan. See Transcript of Ruling, at 52. Nowhere did plaintiff or Mr. St. Germain make such an allegation in any of Mr. St. Germain's alleged "accountings" of his claimed expenditures. See Trial Exhibit 7, attached as EXHIBIT A 2 ; Trial Exhibit 55, attached as EXHIBIT B. Nor is there such an allegation in plaintiff's Fed. R. Civ. P. 26(a)(1)(C) mandatory computation.3 Since Mr. St. Germain was not shy about claiming expenses, including expenses paid by others, his virgin trial testimony that he "believed" he "reimbursed" Mr. Overley $475 "cash" for a period of, he thought, six months is simply not credible. 14. Mr. St. Germain's undocumented, self-serving testimony that he thought he reimbursed $2,850 falls into the same category as his

Mr. Overley is attaching the trial exhibits because it is the defense's understanding that the Court did not retain any of the trial exhibits.
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See Nieto v. Kapoor, 268 F.3d 1208, 1220 (10th Cir. 2001).

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allu[sion] to other payments [he] claims to have made in cash or by check, [where] there was no explicit or credible testimony as to such payments or sufficient documentary evidence offered to demonstrate these payments. And in some instances Mr. Overley testified that he, rather than St. Germain, made those payments. Transcript of Ruling, at 53-54. As to this category of claimed, unsubstantiated payments, this Court rejected plaintiff's claim of unjust enrichment. The Court should do so with respect to the $2,850 as well. 15. The Court stated that Mr. Overley "did not deny" that he had received the $2,850 cash payments from St. Germain." Id. at 52. Defense counsel's and Mr. Overley's recollection of his testimony, however, is that he either denied receiving any such reimbursements or testified he could recall no such payments. In fact, Mr. Overley made four--and only four--payments on the land loan in amounts ranging between $400 and $500. Proof of two of the checks is set forth in Trial Exhibit 70, which was stipulated into evidence. In any event, it was plaintiff's dual burden to disclose affirmatively under the Federal Rules that it was seeking the $2,850 and to prove that Mr. St. Germain paid that amount to Mr. Overley. Plaintiff failed to carry either burden. 16. The judgment should be amended to subtract these amounts: Home Depot charges for $187.78 (Trial Ex. 7, at 17), $976.27 (Trial Ex. 7, at

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18), $896.48 (Trial Ex. 7, at 21-22). There was inadequate evidence as to each of these charges. 17. As to the $187.78 charge, the documentary evidence shows that Mr. St. Germain was the party ordering dimensional lumber, but there is no evidence $187.78 was ever paid. On the Home Depot "receipt," the word "card" is handwritten, but Mr. St. Germain testified that he wrote that on the "receipt." Otherwise, there is no evidence not only of any method of payment, but also of any payment at all. In fact, the "receipt" is not a receipt of any payment; it appears only to be an acknowledgment of a "customer agreement." See Trial Exhibit 7, at 17. 18. The same arguments are applicable with regard to the $976.27 amount, except that there is not even any handwriting indicating the method of payment, let alone the fact of payment. See id. at 18. 19. With regard to the $896.48 Home Depot charge (Trial Ex. 7, at 2122), a cash payment is reflected on the Home Depot receipt. However, the Customer Agreement shows that "Overley Randy" was the customer, and that the materials would be delivered to "St. Germain, David." Trial Exhibit 7, at 21. The Court will recall that Mr. St. Germain gave false trial testimony that he was present with Mr. Overley at Home Depot when Mr. Overley paid the $8044.37
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Home Depot charge (Trial Ex. 7, at 19-20) with Mr. Overley's credit card. It was proven during Mr. St. Germain's testimony and Mr. Overley's testimony that the construction loan paid the $8044.37. This adds to the considerable doubt already clouding all of Mr. St. Germain's undocumented claims of "payment" for construction expenses. There simply is insufficient evidence that Mr. St. Germain paid $976.27 "cash" to Home Depot. WHEREFORE, Mr. Overley respectfully requests that this Court alter or amend the judgment as requested in this Motion. Dated: October 5, 2005. Respectfully submitted, HADDON, M ORGAN, M UELLER, JORDAN, M ACKEY & FOREMAN, P.C.

s/ Ty Gee Ty Gee 150 East 10th Avenue Denver, CO 80203 (303) 831-7364 facsimile (303) 832-2628 Attorneys for Defendant Randy Overley

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Certificate of Service I hereby certify that on October 5, 2005, I electronically filed the foregoing Defendant Overley's Amended Motion to Alter or Amend the Judgment with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following: Christopher Alberto, Esq. Special Attorney for the United States United States Attorney's Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 [email protected] s/ Jennifer Bell I hereby certify that on October 5, 2005, I served Defendant Overley's Amended Motion to Alter or Amend the Judgment to the following non-CM/ECF participant via U.S. Mail: David B. St. Germain 16300 Ledgemont Lane, Unit 2504 Addison, TX 75001 s/ Jennifer Bell

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