On 18 January 2023 the trustee in a related civil case sat for a deposition. She was an adverse witness. She had conducted an extensive investigation with outside professionals. Under oath, she was asked what evidence she had.

In October 2022, in his own separate case (No. 22-cr-80157), the attorney who was the company’s Chief Operating Officer and General Counsel admitted in a signed factual basis that he submitted PPP applications and provided falsified bank statements.

The trustee had every reason to establish otherwise. She was the opposing party. She had retained outside professionals and, in her counsel’s words at the deposition, conducted the investigation “after many hours and at great expense.” Asked document by document what she had found, she gave the same answer.

The EIDL application

Transcript page 55

Q. Are you aware of any evidence that shows Mr. Keough is the individual who prepared this application?
A. No.

Q. Are you aware of any evidence that Mr. Keough is the individual who submitted this application?
A. No.

Q. Are you aware of any evidence that Mr. Keough ever even saw this application?
A. No.

The signature page

Transcript pages 57 to 58

Q. Now, let’s turn to the signature page of this document which is on Page 7. Mr. Keough did not sign this document, correct?
A. Correct.

Q. It was signed by [the attorney].
A. Correct.

Q. There’s no evidence that Mr. Keough signed this, correct?
A. Correct.

Q. No evidence that Mr. Keough was involved in preparing this, correct?
A. Correct.

Counsel then pressed the point against the scale of her own investigation.

Transcript page 58

Q. I’m asking whether you, as a representative for the Debtor Estate in this action, the person responsible for the extensive investigation that you personally conducted with the assistance of outside counsel after many hours and at great expense, are you aware of any evidence that Mr. Keough ever reviewed this document?
A. No.

Q. Are you aware of any evidence that Mr. Keough submitted this document to the SBA?
A. No.

Q. Are you aware of any evidence that Mr. Keough has ever seen this document before?
A. No.

The promissory note

Transcript pages 59 to 60

Q. Following your extensive investigation, you’ve identified no evidence that Mr. Keough signed this document, correct?
A. Correct.

Q. No evidence that Mr. Keough prepared this?
A. Correct.

Q. No information that Mr. Keough reviewed this?
A. Correct.

Q. No information that Mr. Keough submitted this to the SBA?
A. Correct.

Q. No evidence that Mr. Keough has even seen this document before, correct?
A. Correct.

The dates do not work either

One document she was taken through was dated 20 April 2020, roughly three weeks after the electronic application had already been submitted. The attorney signed it.

Transcript pages 61 to 62

Q. Three weeks, approximately, after the electronic application had been submitted.
A. Yes.

Q. And [the attorney] signed Page 5 of the document.
A. Yes.

Q. And after your extensive investigation, you’re aware of no evidence that Mr. Keough signed this?
A. Correct.

Q. You have no evidence that Mr. Keough prepared this?
A. Correct.

Q. No evidence that Mr. Keough reviewed this?
A. Correct.

Q. No evidence that Mr. Keough submitted this to the SBA?
A. Correct.

Q. No evidence that Mr. Keough has even seen this document before, correct?
A. Correct.

The PPP application

The same sequence was put to her about the bank loan application, after she had already agreed the attorney’s answers on it were untruthful.

Transcript page 77

Q. And it’s your belief that [the attorney] provided answers to those questions which were untruthful?
A. Yes.

Q. Following the results of your intensive investigation, including your retention of outside professionals, have you identified any evidence that Mr. Keough signed this?
A. No.

Q. Any evidence that Mr. Keough prepared this?
A. No.

Q. Any evidence that Mr. Keough reviewed this?
A. No.

Q. Any evidence that Mr. Keough approved this?
A. No.

Q. Any evidence that Mr. Keough submitted this to First Home or any other bank?
A. No.

Q. Any evidence that Mr. Keough even saw this document before?
A. No.

What she had told the court

The trustee had earlier filed a sworn declaration with the court. At the deposition she was taken through it paragraph by paragraph and asked what each assertion rested on.

Transcript page 84

Q. Now would you agree with me that to the extent your declaration suggested to Judge Mora that there was actual evidence suggesting Mr. Keough was involved in submitting false bank statements to First Home Bank, that that was not accurate?
A. My answer is the same as the previous paragraph.

Q. Which is that it was based upon an assumption instead of evidence?
A. Correct.

Q. And in paragraph 20, you made reference to a falsified 2018 federal income tax return, that you stated was submitted to First Home Bank through Mr. Keough, correct? But that was based upon your assumption, correct?
A. Correct.

Q. That was not based on any actual evidence, correct?
A. Correct.