- Developer suing invokes his right against self-incrimination
- Billionaire says case must be dropped if questions are ducked
Mark Zuckerberg is aiming to deliver a knockout punch on the eve of a trial over a property deal gone bad amid a revelation that the developer suing him is under criminal investigation.
Developer Mircea Voskerician faces a criminal probe by the Internal Revenue Service over his $1.8 million sale to the Facebook Inc. co-founder of rights to the property behind his home in Palo Alto, California, his lawyer, Guyton Jinkerson, said in a court filing.
On advice from attorneys in that matter, the developer is invoking his constitutional right against self-incrimination to shield himself from answering whether he falsified a bank statement as evidence in his lawsuit against Zuckerberg, Jinkerson told California Superior Court Judge Beth McGowen at a hearing Tuesday in San Jose.
Zuckerberg has steadily pushed to chip away at the credibility of his adversary in the two years since Voskerician accused him of not keeping his end of a deal to protect his backyard privacy. The billionaire has been trying to show that the developer was bluffing him with a plan to build a 9,600-square-foot house on the lot behind his because Voskerician didn’t have the financial resources to follow through on it.
Zuckerberg’s attorneys are arguing that Voskerician must drop his case if he refuses to answer questions about a discrepancy in different versions of a bank statement he used to support his cash offer for the property.
"This is a core issue in this case," Zuckerberg’s lawyer, Patrick Gunn, told McGowen. "What I need to know, and need to have, are verified answers. I want to know whether or not Mr. Voskerician doctored the bank statement."
Legal experts watching the case say Voskerician now faces the prospect that the lawsuit set for an April 25 trial in state court in San Jose, California, may fall apart -- or worse, invite scrutiny into possible criminal conduct.
Voskerician is “trying to walk a fine line” in a “very last ditch effort” to save the lawsuit, said Marcia McCormick, a professor at the St. Louis University School of Law. Even if the developer is allowed to rely on the Fifth Amendment of the U.S. Constitution to duck questions about the bank statement, it may not help him, McCormick said.
“At the very least, Voskerician is going to have to sit there on the stand and say ‘I can’t talk about this document I produced,’ which will look bad to any jury," she said.
The court battle grew out of Zuckerberg’s agreement in 2012 to pay Voskerician for rights to buy the house behind the CEO’s home. Voskerician claims he gave Zuckerberg a 40 percent discount based on promised introductions and referrals in Silicon Valley that never materialized.
As the case heads to trial, Zuckerberg’s lawyers are challenging the authenticity of a bank statement showing Voskerician had $3.9 million to support his cash offer for the property.
Another version of the statement, disclosed by a lender who worked with Voskerician, shows a balance of $79,522.05 on the same date in 2012, according to Zuckerberg’s lawyers.
Gunn argues that leaves Voskerician with two paths. He can "avoid incriminating himself by dismissing this lawsuit," Gunn wrote in the filing. Or, because he has relied on the bank statement, can proceed with case but has "waived his right to assert the privilege against self-incrimination," Gunn wrote.
In asserting his client’s Fifth Amendment rights, Jinkerson cited California Penal Code sections that make it a felony to prepare forged documents and submit them as evidence in court proceedings.
At Tuesday’s hearing, McGowen said Voskerician had “put this conduct at issue" by submitting the bank statement and asked if he wasn’t “trying to have his cake and eat it, too.”
Jinkerson said what’s at issue is Voskerician’s conduct since the lawsuit was filed in 2014. The bank statement is dated September 2012.
“The conduct I’m focusing on is responding to what happened after the lawsuit was filed," Jinkerson told the judge. “I think in terms of responding to that, he has a privilege."
Voskerician’s case almost collapsed after his first lawyer, David Draper, quit in October, citing California’s ethics rules for lawyers without providing details about the conflict between him and his client.
Jinkerson is trying to “very carefully distance himself” from Voskerician’s previous lawyer who turned over a document that Jinkerson “seems to acknowledge isn’t authentic -- without saying that explicitly," McCormick said. "The thing is out there, and he produced it, even if it was his lawyer, so it’s hard to see how he didn’t waive his Fifth Amendment."
Jinkerson declined to comment after Tuesday’s hearing. Draper declined to comment on the bank statement.
Leland Altschuler, a lawyer who Jinkerson said is representing Voskerician in the criminal investigation, declined to comment on the IRS probe.
The case is Voskerician v. Zuckerberg, 114CV264667, Superior Court of California, County of Santa Clara (San Jose).