Markel Trial Day 7: The bump, money drops, cash deposits and wiretaps

Katherine Magbanua looks over her shoulder towards the gallery to see who is in attendance in the courtroom in the trial for Dan Markel's 2014 murder.

Judge Robert Wheeler delivered a major opinion Tuesday morning before the jury entered the room. He will allow the jury to hear audio of three phone calls captured on wiretap between Donna Adelson and Charlie Adelson immediately after the bump.

This is huge.

Wheeler explained that the State is not trying to prove what was said between the mother and son, but rather what was not said — which was the name of the defendant. Wheeler clarified that the purpose of allowing the jury to hear these recordings is to establish “the fact that Katherine Magbanua was not mentioned in the calls.”

Defense attorney Christopher DeCoste argued vehemently to exclude these. And as Magbanua’s lawyer, he should. These recordings prove a major aspect of the State’s case — that when confronted by a stranger about Dan Markel’s murder, Donna and Charlie knew exactly who to call — their middleman, Magbanua. DeCoste argued with Wheeler even past the judge’s ruling on the matter, to no avail.

“They’re admissible,” Wheeler schooled DeCoste, “and I’ve already made myself clear a number of times.”

Wheeler will also allow the jury to hear Charlie speaking with Erika Johnson regarding Magbanua’s Adelson Institute employment records or, rather, the lack thereof.

“I don’t think it would take a brain scientist” … 

Jessica Rodriguez, the mother of Luis Rivera’s daughter, appeared publicly for the first time to provide testimony in this case. Assistant State Attorney Georgia Cappleman conducted direct examination, introducing the witness as a friend of Magbanua. The two had known each other for some time but became closer in 2013. Their husbands were best friends, and they bonded over being new mothers.

But Rodriguez said that the two had a falling out after Garcia’s arrest, when news blew up about the case, and Magbanua ghosted her friend — never replying to Rodriguez’s messages and keeping her in the dark about what was happening.

At the time this was going down, Rivera and Rodriguez were living in a modest apartment on 16^th Avenue and 135^th Street. It wasn’t lavish and money was a problem, Rodriguez said. She described Rivera (“Tato”) and Garcia (“Tuto”) as “brothers, inseparable,” but described the relationship between Garcia and Magbanua as “toxic — they would on and off a lot.”

Rodriguez’s recollections of events with her friends surrounding Markel’s murder were indistinct to her at the time. It was life as usual. Nobody told Rodriguez what had happened, not even Rivera — who she said, “doesn’t keep secrets” and would share all types of “bad” things with the woman he called his wife.

To Rodriguez, Charlie Adelson was simply “the dentist” that Magbanua was dating while on one of her more serious separations from Garcia. Rodriguez testified that she didn’t believe Rivera or Garcia knew Charlie’s actual name. Garcia hated that Magbanua was dating Charlie, and Magbanua hated that Garcia had a new relationship of his own with a stripper/prostitute who Rodriguez knew only as “Shrimp.”

Rodriguez and Rivera welcomed a daughter in late June 2014, and moved to a different home shortly thereafter, creating a number of milestones in her memory to base recollections around. In this, she shared a few notable things:

— A short time after their daughter was born, Rivera told Rodriguez he was going out of town for a few days “with Tuto” but didn’t say where to. Rodriguez didn’t know what car they took on this trip, but she does recall seeing the men in a green Prius, perhaps around that time.

— Garcia and Magbanua had an erratic relationship with a particularly serious separation in 2014. They didn’t truly reconcile until May 2015 — the night of the Mayweather vs. Pacquiao fight, at which point they remained together until arrests began.

— There was only one time that Rodriguez recalls a “drop” of any money or drugs ever happening in front of her. It occurred when her daughter was only about a month old, which would have been in mid-July 2014. In this account, she says, “Tuto came knocking on the door.” He had a package for Tato — a plastic bag containing what appeared to be a 12” x 8” paper bag wrapped tight. Magbanua was waiting in the car, but Rodriguez called down to her, inviting her up to see “her niece,” the baby. Rodriguez says that “Katie acknowledged the package,” asking her if they had given it to Tato. To Rodriguez, Magbanua appeared “fidgety” and “in a rush.” Tuto called Tato to say they were there, and Tato recommended that his friend not give the package to Rodriguez. This didn’t offend her. “I would have taken the money and left, no questions asked,” she said.

— Rodriguez confirmed something she told investigators in a 2019 deposition: “Katie knew everything that Tuto did when it came to bad stuff,” she had said. “Everything.”

— Rodriguez acknowledged that she does “have Rivera’s back” as he is the father of her daughter, but that she is not with him today and is “definitely not” planning to resume a relationship with him upon his release.

“Are you willing to lie under oath for him?” Cappleman asked.

“No,” said Rodriguez.

“Did anybody — I or anybody — tell you what you should say here today?” Cappleman continued.

“No, not at all,” Rodriguez replied.

While Rodriguez’s direct examination was underway, defense attorney Tara Kawass could be seen next to her client, smiling and shaking her head throughout. It appeared she couldn’t wait for a chance to invalidate this key witness and on cross-examination, she surely tried.

Kawass hammered Rodriguez to affirm what a bad partner Garcia was, noting his binge drinking and cocaine use, and how he was unreliable in helping Magbanua with their children. Kawass asked the witness about Magbanua’s “boss, Charlie” — an interesting phrasing that may have been uttered to plant validation about her alleged employment. But when Kawass asked Rodriguez if Garcia had known the name of Magbanua’s “boss” — her boyfriend, the dentist — Rodriguez said, “not to my knowledge.”

“The whole time prior, we only knew him as the dentist,” she said.

Kawass tried to poke holes in Rodriguez’s memory, such as the time frame when the alleged package drop took place, and about whether Rivera himself had been present when Garcia and Magbanua were there that day. She also wanted Rodriguez to agree that Rivera “was always lying,” citing infidelity as an example, perhaps to discredit Rivera’s testimony, but Jessica disagreed.

“He would never say yes or no,” Rodriguez replied.

Kawass asked Rodriguez to share more with the jury on how she came to know about Markel’s murder. Rodriguez said she didn’t know about it until Garcia’s arrest, on May 25, 2016. Rivera was in custody for a separate crime and Rodriguez didn’t know that it had anything to do with Rivera until June 2, when information about his involvement was released. At that point, Rodriguez began researching the case online, even buying a subscription to the Tallahassee Democrat.

To Kawass, this research may have altered Rodriguez’s memory, and she pushed the witness hard about prior statements made to law enforcement.

“You didn’t tell them about Katie and Sigfredo coming to your house with a package?” Kawass asked Rodriguez, referring to a conversation the witness had previously with FBI agent Patrick Sanford and TPD investigator Sherrie Bennett.

“They didn’t ask,” Rodriguez explained. “It never stuck out to me until my mind was recollected.”

“But you never contacted the detective …” Kawass began.

“Why would I contact them?” Rodriguez snapped back.

Kawass then inferred Rodriguez was only saying what she’s been told to say by law enforcement — the same approach the defense used in their attempt to discredit Rivera. But Rodriguez’s response — just like Rivera — was clear, almost defiant.

“The truth is the truth,” Rodriguez said, later adding, “I said the whole story.”

Kawass questioned why or how Rodriguez came to believe that “Katie and Sigfredo were involved” in this crime.

“I don’t think (it would take) brain scientist (to know),” Rodriguez answered.

Huge spikes in cash deposits, and sequential checks paid in advance

The next witness, Mary Hull, a forensic financial analyst, shifted the tone away from dramatic accounts of turbulent relationships to dramatic accounts — literally.

Under direct examination by prosecutor Sarah Kathryn Dugan, Hull reviewed the banking records of Charlie Adelson, the Adelson Institute, Rivera, Garcia and Magbanua. This revealed a number of consistent patterns.

For example, Hull noted that before Markel’s murder, Rivera’s bank account would receive a direct deposit from his job that he’d quickly withdraw as cash, often followed by overdraft charges that would hit due to autopayments.

But after the murder, Rivera stopped pulling substantial amounts of cash out of his account immediately when checks would clear and the overdrafts stopped, too. This was consistent with having access to alternative cash sources during that time, and his prior pattern didn’t resume until November 2014 — consistent with the amount of cash Rivera admitted being paid for his role in the killing.

Hull quickly touched on a few other findings from Magbanua’s accounts — such as Charlie paying for her trip to Santo Domingo in March 2015, totaling over $900 for the flight, a record of the Lexus that she received from the Adelson family, and records from her breast augmentation that showed it had been paid in cash, with no equivalent cash withdrawals noted from her bank accounts.

But what Hull presented next was far more pointed. Using spreadsheets and charts, Hull showed the jury evidence of significant shifts in Magbanua’s cash deposits before and after Markel’s murder. Some findings include:

— Cash deposits accounted for 23% of Magbanua’s income in 2013, jumping to nearly three times that amount — 64% — in 2014. More specifically, the biggest spikes in cash deposits were seen in July and August of that year, just after Markel’s murder. Another 4% of Magbanua’s income in 2014 came from Adelson Institute checks, meaning that nearly 7 in 10 of her dollars earned that year can be attributed to the Adelson practice or cash.

— Adelson Institute paychecks to Magbanua continued throughout 2015, ceasing in the spring of 2016, right after the FBI bump happened. In 2015, cash accounted for half (51%) of Magbanua’s earnings, with another 20% coming from the Adelson Institute.

— In the 12 months before the murder, Magbanua’s cash deposits summed to $15,600. In the 12 months after the murder, this spiked to $44,963 — about three times as much. The most dramatic sum of cash was $17,300, deposited within a six-week period after Markel’s murder.

“Is there any record, bank records that show she was employed at that time?” Dugan asked.

Hull denied seeing evidence of that, pointing to a gap in known employment between July 31, 2014, when Magbanua stopped working with Sofi Dental Care and October 7, when she got her first check signed by Donna Adelson.

DeCoste then handled Hull’s cross-examination.

“We can agree there was a spike in 2014 in cash,” DeCoste began, stating something that the witness could actually agree with. DeCoste often begins questions with the phrase, “You’d agree with me that …” which wouldn’t be considered a proper question by Jeopardy! standards.

DeCoste pressed Hull on whether her analysis included records of cash that weren’t deposited to accounts, or on whether she could know where any given cash came from, before being deposited.

“I wouldn’t,” Hull said.

Then, DeCoste threw out a number of possible cash sources that could have accounted for the spikes Hull showed in deposits — Dr. Jerome Obed, a later employer; Optimar Realty, where she worked years later; Club Fate; Hollywood Live; or Sigfredo Garcia himself.

“We just don’t know,” DeCoste said of these.

“Correct,” Hull replied.

One YouTuber commented on the Tallahassee Democrat trial live feed, pretending to ask DeCoste’s next question, underscoring the repetition of these questions and the obvious impossibility of making such determinations: “Ms. Hull, can you account for the cash Ms. Magbanua found in the pot at the end of the rainbow during 2014 through 2016?”

But to the jury, the actual DeCoste continued, “Have you ever worked in the nightlife industry?” And “would you know how much a person doing VIP Bottle Service in Miami should be making?”

“No,” said Hull.

DeCoste pointed out a few technical errors Hull had made in her presentation, including a misspelling of his co-counsel’s last name before moving onto Magbanua’s payments from the Adelson Institute. DeCoste noted a few things had been flagged in the spreadsheets.

“You saw sequential checks, you saw advance pay,” he said to Hull, which she acknowledged. DeCoste then pressed whether they had looked at Clariza Lebredo or Erika Johnson’s pay histories, to see if their patterns were similar. Hull said she had not.

“How many times out of these 44 checks did she cash the check before the pay period ended?” DeCoste asked, following that Magbanua could have been receiving the checks early and holding onto them, as the State suggests, or not receiving them at all until after the pay period ended.

Hull conceded that was possible.

“You don’t know what Ms. Magbanua’s work hours were at the Adelson Institute or what her work actually was,” DeCoste asked in statement form — basically laying out the State’s theory for them.

Which left little for Dugan to do on redirect.

In this, the steady, focused prosecutor asked whether other Adelson Institute employees like Lebredo or Johnson could provide insights about how Donna managed payroll, even if Donna would not do so herself.

“Yes,” Hull answered.

Dugan then asked Hull to elaborate on how employment and payment records received from the Adelson Institute were “sparse” compared to what they usually receive, and on whether the financial analyst had seen equivalent cash spikes during other periods of time when Magbanua was known to work at nightclubs.

“No,” Hull replied.

“If you were hired by the defense, instead of the state, would your analysis of these records be any different?”

“No,” said Hull, and was excused.

The Bump, at last

The initial encounter between Donna Adelson and an undercover FBI agent has been talked about since 2016, and the video of their exchange has become familiar to those following the case over the years.

That undercover, Oscar Jimenez Jr., appeared as a witness today, and jurors got to see the recording for themselves — likely for the very first time.

Jimenez had been a Special Agent with the FBI for over 22 years. At the time of the bump, he was working in the violent crimes squad. Under direct examination by Cappleman, Jimenez shared how “bumps” are used by law enforcement to solicit information or generate discussion for wiretaps.

“On April 19, 2016, what specifically were you asked to do?” Cappleman asked.

The seasoned agent replied he had been instructed to approach Donna on the street and hand her a flyer that included a photo of Dan Markel within a newspaper article about his murder. Handwritten on the flyer was a request for $5,000 and a phone number, his undercover line.

Upon approaching Donna, Jimenez presented himself as a “brother” of Rivera and says that Rivera needs the Adelson family’s help, saying he knows they have been helping Katie and Tuto in exchange for their role in Markel’s murder.

While the testimony by Jimenez was straightforward, the sequence of events that ultimately followed the 2016 bump were lively and significant. Perhaps that’s why DeCoste’s cross-examination was so captious.

“You’d agree with me, right? The Federal Bureau of Investigation, it was an oversight not to make a copy of the flyer,” DeCoste said.

“Yes,” the agent conceded.

But on DeCoste’s next question, no ground was gained.

“You’d agree with me, though, it could have been more effective to not name names,” he said, “To not give a roadmap.”

“I just did as I was instructed,” Jimenez replied.

Dolce Vita, captured and clarified

Louis Bronstein, another Special Agent with the FBI, was called as the next witness, sharing how he was tasked with surveilling Charlie and Magbanua after the bump. Specifically, he captured their conversation at Dolce Vita, “a small restaurant in a strip mall” north of Miami Beach, which took place the day after the bump.

“When I entered the restaurant, I saw they were seated toward the back, about as far back as you could go,” Bronstein said. “I saw there was a vacant table … and sat as close as I could get to them without looking suspicious.”

“It was a noisy restaurant, right?” Cappleman asked him, “Lots of background noise.”

“Yes,” Bronstein replied.

A second agent had entered the restaurant and sat with him, equipped with another recording device. But even with two recordings, the audio proved difficult to hear.

“Charlie Adelson was louder,” Bronstein offered. And, when asked, he offered his impression of how the two were acting. “They seemed to be engaged with one another based on body language.”

During a brief cross-examination, DeCoste asked Bronstein to explain the relationship between the FBI and the Department of Justice, followed by questions on DOJ protocols on dealing with “in-custody” people. It seemed DeCoste was using this witness to lay the foundation for challenging why Rivera’s proffers weren’t all recorded. This question had nothing to do with Dolce Vita at all.

The next witness, James Keith McElveen, is a forensic engineer who over his 35-year career, he has developed a specific expertise to “take audio, video, computer data, and try to restore it or enhance it.”

That’s what he was called on to do for the Dolce Vita recording. He was provided with audio and video data from the two devices, and shared how one had clearer video, but the other had clearer audio.

McElveen attributed the poor audio quality to a few factors: distance, noise, and the configuration of the equipment. One device had been propped against a bench, creating interference. Music was playing in the restaurant, and kitchen noises were intruding.

To adjust for that, McElveen’s methodology was designed to get a “lock” on a particular voice and learn to read for those rather than other sounds.

“The male voice was stronger,” McElveen said, “He (Charlie) was talking toward the general direction of the device that was capturing the audio” compared with Magbanua who was talking softly and away from the device.

It wasn’t only the agents who had trouble hearing Magbanua’s voice. McElveen pointed out that at multiple times in their encounter, Charlie asked her, “What?” suggesting that even right next to Magbanua, he was straining to hear.

On cross-examination, DeCoste insinuated that McElveen was put up to this task too late, and was forced to rush the job. McElveen disagreed, replying, “I can’t say I felt pressure to meet any specific date.”

DeCoste also wanted McElveen to agree that the recording device was intentionally “focused” on Charlie, not Magbanua. But McElveen again disagreed.

“The device was turned toward that table,” he said.

Special Agent Sanford in the spotlight

FBI Special Agent Patrick Sanford was initially brought in to help TPD with leads on the Markel case, and some other things here and there. But as the investigation became more involved and increasingly focused outside of Tallahassee, Sanford’s role quickly grew to “co-lead” alongside TPD detective Craig Isom.

Cappleman wasted no time in getting to the point.

She asked if Sanford was aware of the defense allegation that there must have been some direct connection between the Adelson family, Garcia, and Rivera. He was. She then asked, “Did you investigate that possibility?”

“Yes,” Sanford replied, “We absolutely did.”

Cappleman shared something that was not previously revealed. Although Rivera was not under wiretap for his involvement in this case, there was a wiretap on his phone for his other federal charges. His phone was listened to as part of that, and Cappleman asked Sanford if these recordings provide any evidence of communication between Rivera and any member of the Adelson family.

Sanford said they had “scrubbed that thoroughly” in coordination with the DEA and ATF and found no connections between any of these parties.

DeCoste was visibly upset during this question. And it didn’t get any better for the defense from there.

“When we acquire a cooperating witness, we bring in law enforcement,” Cappleman said before asking Sanford if there was anything unusual about how Rivera’s proffer in September 2016 occurred.

“Did anyone spoon-feed information to Rivera?” she asked.

“No, if anything the opposite,” Sanford explained, “We tried to listen. We want him to tell him the truth.”

And Sanford had plenty of time to get there. Over the course of multiple interviews and a trip south in the attempt to find the murder weapon, Sanford says he spent “a good 30-40 hours” with Rivera.

“At any point in this, did he refer to his paperwork or police reports to answer questions law enforcement had?” Cappleman asked.

“No, not at all,” Sanford answered.

“If you learn something new from a subject,” she continued, “Is that something you would check out?”

“Yes,” Sanford said, and then gave a few examples of information Rivera provided that was unknown to law enforcement at that time, but then investigated and confirmed. These included the shooting of the hole in the Prius and contact with a local cocaine dealer that he and Garcia had met on their two trips to Tallahassee.

Perhaps even more importantly, though, is how Sanford explained the choice by investigators to include “Katie’s” name in the bump.

DeCoste had asked Jimenez if it would have been better to leave all names out of the exchange, to see what Donna would do unprompted. Sanford provided context to this question, saying that the Adelson family was “already in the public eye because of the divorce” and that if the undercover had passed along a note essentially saying, “we know what you did last summer,” the family may not be taken seriously.

“We had to create the idea that it was Mr. Rivera who was part of it, who was telling people what had happened, to give it legitimacy,” Sanford continued, “If it seemed like detailed information, they would take the threat seriously and information would travel through” as it did during the conspiracy.

That’s precisely what happened.

With Sanford still on the stand, Cappleman played four calls for the jury — all of which happened just after the bump.

The first three calls were between Donna and Charlie. In these, Donna tells Charlie she was approached by someone on the street and given “paperwork” with a request for $5,000. Through largely coded language that included peculiar references to a “TV,” she assures Charlie that it was not a process server or the IRS, narrowing down that it was something that had to do with “the two of us” and “an ex-girlfriend.”

Donna never says “Katie” or “Magbanua” to her son, but that’s the only ex-girlfriend Charlie called next. Cappleman asked Sanford whether Magbanua was Charlie’s only ex-girlfriend, which she clearly was not.

And his “most recent ex-girlfriend?”

“No.”

In Charlie’s subsequent call with Magbanua, though, he says a few things that had never been uttered by his mother. For example, Donna never said that the undercover said, “Charlie” or “your son” — but Charlie tells Magbanua this had happened.

Sanford described the next few meetings that occurred in person between Charlie and Donna, all in places that were difficult or impossible to surveil. Charlie had already told Donna not to “talk” anywhere, not even in their apartment, and the two made successful efforts to avoid being overheard. Following his conversations with Donna, however, Charlie calls Katie.

The jury got to hear a few of these calls, and there’s a lot more to come.

Tomorrow …

Cappleman will continue her direct examination of Agent Sanford, followed by what DeCoste warned Wheeler will be a lengthy cross-examination. The State says they are likely to rest their case tomorrow, making way for the defense to begin calling their own witnesses.

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Florida Politics is providing daily coverage of Magbanua’s retrial for the 2014 murder-for-hire of FSU law professor Markel. The case has drawn international media attention to Florida’s capital city, and we’ll share with readers the top things to watch for and discuss as proceedings unfold. Our reporting will draw from many sources, including contributor Karen Cyphers of Sachs Media, who with attorney Jason Solomon advocate with the grassroots group, Justice for Dan, to draw attention to this case and provide analysis of relevance to Florida’s political, advocacy, and legal communities.