CINCINNATI — The first witness called by the defense in the federal embezzlement trial of a 41-year-old regional accounts manager opened his testimony Tuesday morning by leaning into the courtroom microphone, exhaling slowly, and telling the jury, “Okay so first of all, he wasn’t even the worst one of us,” a statement that defense counsel later characterized as “not what we had rehearsed.”
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The witness, a 42-year-old commercial HVAC estimator who has been a friend of the defendant since high school, had been called to provide testimony to the defendant’s character, integrity, and standing in the community. He had been prepared by defense counsel over the course of three separate two-hour sessions, including a final walkthrough Monday evening during which, sources confirmed, the estimator was specifically instructed not to “bring up other people,” not to “go off-script,” and not to “say the phrase first of all under any circumstance.”
The witness took the stand at 10:14 a.m.
He said the phrase at 10:14 a.m.
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“Okay so first of all,” he began, after taking the oath, “he wasn’t even the worst one of us. I want to put that out there. I want the jury to know that. There were, like, six of us. He was — I’d say middle of the pack. Honestly, more on the cleaner side of middle. If you knew the guy with the boat, you would not be here right now.”
Defense counsel, a veteran federal defense attorney in her sixteenth year of practice, who was at that moment seated at the defense table reviewing her notes for the morning’s testimony, was observed by courtroom sketch artists to “stop reviewing her notes” and “place both palms flat on the table.”
The estimator, undeterred, continued.
“I just feel like, before we get into all of, you know, this,” he said, gesturing broadly at the courtroom, the prosecution, the federal seal, the American flag, the federal judge, “I think it’s important for the jury to have context. Because he’s a good guy. He’s a good guy. He was, I would say, the third or fourth most law-abiding member of our friend group, and that’s accounting for the fact that two of those guys are now dead and one of them is currently in Wyoming, which I’m not going to get into.”
The presiding judge, a former prosecutor appointed to the bench in 2011, leaned forward slightly.
“Sir,” she said. “Are you going to answer the question?”
“What was the question,” the witness said.
“The question was whether you have known the defendant for a long time,” the judge said.
“Oh,” he said. “Yes. Twenty-eight years. We met in tenth grade. He sat behind me in geometry. I had a substitute teacher one day who I’m pretty sure wasn’t actually a teacher and he was the one who figured it out, which I think speaks to his character. He’s observant. He’s aware. He’s, like, engaged. That’s the kind of guy he is.”
“Thank you, sir,” the judge said.
“I just don’t want the jury to think he’s, like, the mastermind,” the estimator added. “Because he’s not. He couldn’t mastermind a sandwich. I love him. He’s my best friend. But the idea that he orchestrated, like, an embezzlement scheme? That’s, like, funny to me. That’s, like, comedy. If you knew him you’d be laughing right now. He once forgot how to drive.”
Defense counsel, who had by this point risen approximately halfway from her seat, requested a brief recess.
The recess was granted.
What followed, according to two sources present in the courthouse hallway during the next eleven minutes, was a “sustained whisper-conversation” between the attorney and her witness, conducted near a water fountain, during which she reportedly used the phrase “what are you doing” four times and the phrase “sir, please” three times.
The estimator, sources confirmed, listened attentively and nodded throughout.
He returned to the stand at 10:38 a.m.
“Okay,” he began. “First of all, I want to apologize to the court.”
“Sir,” the judge said.
“I think I came in a little hot,” he said. “I think I was, like, defending him in a way that maybe wasn’t, like, helpful. I just want everyone to know I think he’s a great guy. He’s been my best friend since geometry. He’s the godfather of my son. He coached my son’s little league team for two years and they almost made the playoffs. He volunteers. He goes to church. He’s a good guy. I just want that on the record.”
Defense counsel closed her eyes briefly and exhaled.
“Also,” the estimator added, “I want to clarify something I said earlier. About the guy with the boat. I don’t want to leave the jury with, like, a wrong impression of him. He is also a great guy. He has gone through some stuff. He has been working on himself. The thing with the boat was a long time ago. He has changed. I don’t want anyone walking out of here thinking he is the worst person they ever heard of. He’s not. He’s, like, top fifteen percent.”
“Sir,” the judge said.
“I’m just saying,” he said.
“Sir, I am instructing you to limit your testimony to the defendant,” the judge said.
“Right,” he said. “Right. Sorry. Got it. Him only. He is great. I just feel like in order to understand him, you have to understand the context in which he operates, which includes the boat guy, and also includes a guy from the old crew who is no longer with us in any official capacity, and I think —”
“Sir.”
“Yes.”
“Stop.”
The estimator stopped.
The prosecution, sources confirmed, had at this point ceased taking notes and was simply sitting still. The lead prosecutor, a career federal litigator, was observed making sustained eye contact with the ceiling. His co-counsel, a younger associate, was visibly trying not to laugh.
Defense counsel, moving with what one observer described as “the careful precision of someone defusing a homemade device,” redirected.
“Sir,” she said, “in your years of friendship with my client, did you ever know him to be involved in any conduct that you would characterize as dishonest?”
The witness thought about this for a long moment.
“Define dishonest,” he said.
The courtroom went, for the first time since 10:14 a.m., genuinely silent.
“Sir,” the attorney said carefully, “have you ever known the defendant, in his personal or professional life, to engage in any conduct involving the misrepresentation of facts or the misappropriation of funds?”
He thought about this for an even longer moment.
“I’d rather not speculate,” he said.
A 2019 study published in the Beauchamp Review of Trial Advocacy found that approximately 23% of character witnesses called by the defense in federal criminal proceedings produce testimony that is, on net, “harmful or actively damaging to the defendant’s case,” with the majority of such damage occurring in the first sixty seconds of direct examination. The study’s authors concluded that the most reliable predictor of a damaging character witness was “the witness’s preexisting confidence that he, personally, is a natural communicator and a people person.”
The estimator, when asked during a recess whether he believed he was a natural communicator, smiled broadly.
“Oh yeah,” he said. “I always have been. I read the room. I just — I get people. I always have.”
Defense counsel, asked at the end of Tuesday’s session whether she would be calling him back to the stand for any further testimony, paused for a long time before answering.
“We are reviewing our witness list,” she said carefully. “We are taking a fresh look. We are open to all options. We are evaluating.”
She was asked whether the words fresh look meant the witness would not be returning.
“He did his best,” the attorney said. “He was, in his own way, trying to help. He has been my client’s best friend for twenty-eight years. He has known my client longer than I have known my own husband. His testimony reflected the depth of his affection for my client.”
She was asked again whether the witness would be returning.
“He will not be returning to the stand,” she said.
The defendant was observed throughout Tuesday’s testimony to maintain a fixed expression that one courtroom observer described as “the expression of a man being slowly buried by a friend who genuinely loves him.”
At one point, during the witness’s direct mention of “the thing with the boat,” the accounts manager reportedly leaned forward and whispered something to his attorney. The attorney whispered something back. He nodded slowly. He then placed his face in his hands for what court reporters timed at “approximately fourteen seconds.”
When he looked up, he was smiling.
Reporters were unable to determine the source of the smile. One theory, advanced by a court watcher who has attended every day of the trial, is that the defendant had at that moment realized that his oldest friend in the world had just walked into a federal courtroom and, in front of a jury, opened his testimony with a sentence that, while disastrous in every legal sense, was also “the most him thing that man had ever done,” and that this realization had produced in the defendant a feeling that no defense attorney, no judge, no prosecutor, no jury, and no possible verdict could ever take away from him.
The trial continues Thursday.
The boat guy, sources confirm, has been instructed by his own lawyer not to attend.
At press time, the estimator was outside the courthouse speaking to a local news crew, telling them that he felt his testimony had “gone really well, all things considered,” and that he believed his old friend had “a really strong shot here.”
He was asked, by the reporter, whether he had any final thoughts.
“First of all,” he said.
The reporter ended the interview.