Case 5:12-cv-00836-DEP Document 98-26 Filed 09/30/15 Page 1 of 10 EXHIBIT 23 tothe DECLARATION OF NATHAN SIEGEL IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.Case 5:12-cv-00836-DEP Document 98-26 Filed 09/90/15 Page 2 of 10 DEFENDANTS’ EXHIBIT JUXTAPOSING EXCERPTS OF THE, TAPE AND PLAINTIFF'S TESTIMONY ABOUT WHAT SHE ASSERTS THEY MEAN The following sets forth some examples that justapose the words ofthe tape with Plaintf's assertions about what they supposedly mean: The Tape: AM agrecing with Davis that her husband "doesn't think he does anything “wrong,” she eds, "You know, Berne is also in denial. 1 dhink that he did the things he 4d but somehow through his own mental telepathy has erased them out of his ming, MIP Ex, C=3 at 52-6103, Eat 6 Plaintiff: She claims Bernie was in denial about “t]he money situation.” Siegel Decl Ex. at 153:15-19, When asked what were “the things he did” that he “erased”, she sad “'m confused with that, but i too somehow “was about money and the loaning ofthe money.” Jd, at 1544-9. “TheTape:_ When Davis asks whether “e's [Bemie'] doing anything anymore” she responds dan’tknow what he’s upto, Tmean, whats the point? Team find anybody T ‘want to serew or do whatever I want with them, I don't need Berne for that" MIP Ex, CB SA2-6:14, Eat $6 Plaintiff: When asked why, if this conversation was supposedly about loaning money, Mis. Fine answered by talking about sex, she testified, “I could not answer that” and suggested perhaps she was distracted because "I had one ear tothe phone and three litle Kids” Siegel Decl Ex. 1 at 156:8-22. She also claims her comments about extr-marital ‘sexual relationships meant “tT looked, didn’t, but I could’ ve" ever have any sex with anyone other than her husband since wedding, 1d at 185:13-16. ‘TheTapar When Davis said he tld her husband, “Ber, leave mealone oF Pm going to, {you know, tell some people about what happened, what you di ta me,” Mrs. Fine ‘responded, I don’ even thnk that he acknowledges what happened. ‘You know . I think that he did it and ke might have been, I don't know, in another..." MIP Exs. C3 at 6:50-7:10, Bat 6 Plaintiff: When asked “What sit that you think he di’, Plinif testified “I coul’t even tell you rightthere.” Siegel Decl Ex. I at 159:23-24 ink Pm the only one that he's ever done that 7 fanather minor who used to spend time a their 1case 5:12-cv-00896-DEP Document 98-26 Filed 09/3015 Page 3 of 10 ‘home| disappear off the face ofthe earth,” She then confines, “I think thete’s got to bea lt of instances oft, you know? 1 really do.” MIP xs. C3 at 7:17-33, Eat 7 The Tape: When Davis says that Mike Lang “told his girliend, but he won't admit it to ine,” PainfT responded, “[r]iht, and he kind of fel off ofthe face ofthe earth.” MJP xs, C3 at 733-8 05, Bat ‘Plaintif: Plantiffclaims that this response also refered to Lang seeking loans, though she didnot know whether her husband had ever loaned Lang any money. Siegel Deel x, 1 at 165:20.166%6 The Tape: Mrs. Fine tells Davis, “knew what was going on and it was uncomfortable Tor everybody involved,” and then adds, “And the kids that came over were young ids, snd you kaow, whon you're young you eally don't speak your mind. You just think that maybe i's right, whats going on” MIP Exs. C3 at 8:17-8:28, Eat 7, Plaintiff: Mes. Fine claimed that what “was going on” that was “uncomfortable” all sgoes back tothe money agin.” Siegsl Decl Ex. I at 160:6-R, 167:4-0. She also claimed that whenshe used the word "young kids", she meant “anybody younger than mo" so she was reall talking about adults in their 20s. I. at 168:11-21. Finally, she claimed that what hese supposed adults in thet 20s “really [didn’t] speak [hee] mind” ‘about Was hee hushand’s insistence chat they show him their repor cards so he could ‘monitor their perfermance in school, as well as “not paying back the money.” I. at 22-170:19, “The Tape: When Davis says, "Maybe, ike, | Tel bad because of allthat stuT he did ime, like, you know, and wen Iwas younger... and if he were capable right now he'd sly to do something, you know? He'd try t grab me,” she responds: “He doesn't Fearn,” MIP Exs, €-3 at 11:58-12:08, Eat 10, ff: Plaintiff acknowledged that what her husband “doesn’t... lear” i that “Bobby ‘ida’t want tobe grabbed,” but claimed that it was nothing sexual because "I didn't know ‘where he was grating him” and suggested Bobby was talking about Bernie “taking] {your knee and squeezing it eal hard” as a form of corporal punishment. Siegel Decl. Ex. at 1768-22.Case 5:12-cv-00836-DEP Document 98.26 Filed 09/90/15 Page 4 of 10 “The Tape: Aor Davis tells er, T call hiv a pedophile and allthis and thea I stl got Manley (a Syracuse athletic facility] and he stil ied to grab me inthe office,” she responds: “Becaus | think he thinks that maybe you accepted it beeause you sil went ‘back up thee, You know what I mean? You know how sometimes, lke, I ean call you, “Thate you, Thate you, I hate you,” andthe nex thing I'm in bed with you... So you ean say whatever you wanted, bu in the end you still went up. So I mean not you personaly ‘Anybody can say no, no, no, but in their hed they're going, yes, ye, yes.” MIP Fx. 3. 12530 -13.05, Sat 11 ‘Plaintift: Pliniffacknovledges that the word “pedophile” refers to alleged sexual sbuse, but when she responded“ think he thinks that maybe you accepted it” she “was ‘only alt istening” and did not think they were taking about sex. Siegel Decl. Ex. 1 at 184:10-185:11. She also said that when sh sud “the next thing I'm in bed with you” she vas “not talking about sex,” but was just “talking about nobody.” 1d at 185:16-186:6 ‘She likewise maintined that when she said “no, no, no” she “didn't mean sexually,” but rather “it was about money and Bernie was grabbing." Id. at 186:21-187°9. “ThelTaper Alter avis asks her, "Vou don’t think anything ever happened with David ithe Fines son}, do You?” she says, “no,” and after Davis responds, “See, I worry about that, 100. I'm ike —because David's a great kid and everything,” Mrs. Fine again says, No, no, I don’t. Ljust think it as —[ dhink that chere might have been others, but it was. geared toward ~ thao was something about you." Davis then responds, “I'm wondering ‘why Twas ike, the worst one to which Mis. Fine answers, “I don't know.” MIP Eas. C3 at 15:05-16, Bat U1 Plains: Mrs, Fine testified that she did understand Davis to ask whether she thought her Inusband had sexually molested her son David, but that when she sai “think that there ‘might have been ofers, but it was geared toward... you" she was not talking about sex, but rather that her husband “loved Bobby” and “totaly felt sorry for the kid.” Stegel Decl, Ex. [at 189:9-191:1, She likewise claimed thatthe exchange about Davis being “the worst one” sho “was not talking about sex" and ‘I have no idea what [the worst one] means.” fd. at 1911-20, “The Taper Mis Fe responded wo Davis's observation that “the only thing [her husband] ‘ever eared about was one thing, and that was, like, touching me or whatever,” not by disagreeing with Davis's characterization, but by telling a series of aneedotes about her husband meant to illustrate her husband's selfishness. MUP Exs. C-3at H:14-1601, Fat 2, Plsiff: Mrs, Fine claims she “didn't now” whether she understood Davis to be | refering to sexual “touching” because “there was so much going on with the kids.” Siegel Decl. Ex. La 19638-1979,Case 5:12-cv-00836-DEP Document 98-26 Filed 09/30/15 Page 5 of 10 The Tape: Davis ays, “one ofthe reasons I would never give W back [the money loaned] iw him is because of what happened when he gave it tome. Like, mean, he gave itto me for ane reason.” Mrs. Fine responds, “Oh, [understand that” MJP Exs. C-3 at 16:00-16:15, E ati. Plaintiff: Plaintiff claims that the “one reason” they discussed was that “Bobby said he ‘was going to pay Fim back" and “there's no sexual tlk” inthis conversation at all Siepel Decl Ex. Lat 198:15-200:10. “The Tape: Mis: Fie recounts that her husband "said to me, “Oh, you Know, you slept ‘with Bobby. I said, ‘Oh, really? How do you know that? Oh, because Lknow. He told me. I said, “No kidding. Oh, yeah, he told me everything that you did together. Tsai, “Oh, cally?” Davis asks, “Wien did he tell you that?" and she responds, “Oh, last {yeat.” MIP Exs. €-3 at 16:23-16:35, Ea 13. Plaintiff Plaintiff eeknovledges that her husband sui this to her, but denies that she slept with Davis. Siege! Decl, Fx. | at 200:13-22, “The Taps After Davis observes that her husband “needs help” and that “ho Mikes boys,” ahe responds [he docsn’t think he neds help” and then says ae told her husband “Tobby and I aked, and T know some things about you tat, if you keep pushing, are going to be let out” adding, in that egard, “he [Bemie] thinks he's above the law." MJP xs, C3 at 17:30-18:24, Eat 15. Plaintiff: Plainffclaims that she “[id not] respond to ‘he likes boys.” Instead, she aims that what “Bobby and [she] talked” about were NCAA recruiting violations her Inusband had committed, which Davis puportedly knew about. Siegel Decl. Ex. 1 at 208:21-209:20. Ske further eleims she did not mean “above the la in the sense of the lawiaw,” but rahe meant NCAA rules. Hat 209:23-210:23. “The Tape: Davie ells her that when Bern Fine Toaned him money'a fow years ealier, Terie would “mace me do Something, you know." When Mas. Fine responds, "Well, ‘what did he want you to do?", Davis esponded “well, what do you thnk, what he always oes.” Mes Fine responds by demanding explicit details: What? He wants you to grab him, of blow him?” When Davis responds, "no, he tied to make me grab him ... but at Fits when he would grab me and start, you know, touching me,” she replies: “Right” MIP Exs, C-3 at 28:32-47,E at 20,Case 5:12-cv-00836-DEP Document 98-26 Filed 09/30/15 Page 6 of 10 ‘Plant: Mis. Fie claims this proves she “knew nothing about” any sexual relationship between Davis and her husband because “I'm fishing” and “I'm asking him all ofthese, just fo see what he was talking about” Siegel Decl Ex. 1 at 215:7-215:21, ‘When asked why she voluntered the word “grab, since she had earlier denied she understood Davis use that word ina sexual way she responded “I sometimes say something just beause it's a word.” Ld. at 216:16 ‘So when he ~ whea he gave you the money, what does he ‘want for tha? He wants you to grab him, or he wanted to do you?” Davis replies, "He wanted to do me... Yeah, he wanted me to touch him, 100. He tried to make me touch him couple times. He would grab my hand, and then I would pull away, and then he"d put me in your bed and then, you know, pin me down, And I would ty to go away, and he'd put his arm o top of my chest, and he goes, “I you want this money, then stay right here," you know?" To this, she replies: “Right” MIP Exs. C-3 at 23:49-24-08, Eat 2. ‘Plaintif: Mrs. Fine claims “it could be” that Davis was aking about her husband trabbing his penisbut “I know nothing about this,” and “I'm just asking questions.” Siegel Decl Ex. lat 216: The Tape: Davis ays, “And I old you about this before. He'd grb you if you were ‘eying to walk avy, he would say, “Oh, You know, Il pul it off she responds "Right, Fight. but You nver had any’ orl sex with him?” Davis replies, “No. 1 think he would ‘want 1," to whichshe exclaims in response, “Oh, of course he would! Why wouldn't he?” MIP Exs. C3 at 24:12-27, Eat 20-21 BI ff: Mes, Fine elim “I was being sarcastic thw." Siegel Dee. Ex. [at 21735 The Tape: Mrs, Fine says to Davis, “Te hired you withthe money" and “The isue at ian is that he had no business doing what he did with you. And you know what? [Neither di I beca.se I really helped screw you up litle more too.” MIP Exs.C-3 at 24:50-25:20, Ea 21 | Plain: Mrs, Fine claims she meant by this that “when Bernie wouldn't give hima ‘money, L would give him money.” Siogel Decl, Ex. 1 at 225:3-225:7 | “The Tape: Davis lls her,“ retrospect know he didnt care about the money. He was | Just rying t0 get one thing.” Mrs. Fine’s response, “You know, once didn't he ever think | ‘guy nis psitin, that he could possibly be blackmailed?” MIP Exs.C-3 at25:23- | 25:37, Bat 22,(Case 5:12-cv-00886-DEP Document 98-26 Filed 09/30/15 Page 7 of 10 Pint: Mes. Fire claims she is “not sure™ what “one thing” Davis refers o, but that her {query about blacks fered to Davis's knowledge of NCAA recruiting violations. Siegel Decl Ex. 1 at 226: “Thi Tape: Davis espond to her question about blakanal by saying don think “ould have [come forward) because it would be so embarassing". Mrs Fine responds, “Ips embarrassing for everybody... He knows that you probebly won't come forward because you'd be horsfied too ... when L was with you, it wasn’ because ofthe money, | Teas because I wanted to." MIP Exs. C3 at 26:30-26:50, Fat 22, Plaintiff: Mrs, Fire denies that she was refeering to any sexual relationship between her nd Davis. Siegel Decl Ex. 1 at 2916-230: Te Tape: Davis aks, am Tie one who was inthe wrong ike, when was younger? Lite you know, sould have si something o =” Mi, Fine apo, “Nov you didnt do anything =I mean, you were @ki.” MIP Exs. C23 at 33:08-33:17, Ea 30, ‘Plaintif: Mrs. Fine denis this relates to when Davis was a minor, claiming “He was a kid because anyone younger than me is wkd” and “it could have been wien he was in his 20s and Bernie lomed him money.” Siege! Deel. x. 1 at 33:1-15. The Tape: Mis. Fine continues, "care about you, and I didn't want to ses you being ‘seated thet way... And i's hard for ~if it was enother gel, like [old you it would be easy forme to step in because you know what you're up against. But when someone is nother guy, you cant compete with that, I just weong, and you were a kid. You're a ‘man now but you were skid then.” MIP Exs. C-3 at 33:20433045, Eat 29. Plaintiff: Mrs. Fine claims “it had nothing to do with any sexual thing” and she mean “it Toaned money toa girl or he loaned money [to git] it's easier to talk to gi”, whereas “a guy I couldn't compete to come up and ask you forthe money.” Siegel Decl Ex. | at 2344-23515. As for what was “wrong” when Davis was “a kd”, she again ‘claimed it was “net anything sexual”, but ather she meant “Bobby couldn't pay him back.” Fel a 235:14-23633. The Tape: Mrs, Fine says, "Seott Ave. is gone ,.. s0 realy there's no place forhim to runand dag peopl. “Lets go over Seat Ave inaudible)” Davis responds, Oh, it Seat Avene” eer tots home the Fines ona fora few yours ater they moved fom the Wilson set residence.Case 5:12-cv-00936-DEP Document 98-26 Filed 09/30/15 Page 8 of 10 doesnt matter. He would doit downstairs when you were upstairs cooking sometimes. 1 1nd he would be, like, at Manley, “Shut the door,” she then explain that, when Davis was living with them, her husband used to try to get her to go upstairs fo check on their young son David, and she says, “Td come down, He'd be out ofthe living room in the basement. Heused to think of ways to get me out ofthe room. Like, 'm not an idiot, Bobby.” MUP Ex, C-3 at 34:48-35:11, Eat 30 Plainff: Mes. Fite initially elsimed, “I don’t even know what that means. [just kind of threw it in there” Siegel Decl. Ex. I at 238:8-15. When pressed, however, she acknowledged tha “I understand i's not about him lending him money [inthe basement!” and “al this point” Davis was talking about sex. But“ don't know anything ‘that’s taking place, obviously, because I'm cooking.” Kd. at 239:8-25. She aso claimed “I don't have any idea" why her husband tried "to get me out ofthe room” but “I dida't find it suspicious inthe least.” fd at 240:3-248:12, “The Tape: Davis ells Mrs Fine, “when I stayed therein your basement, he would come “down there every sight, 'm, ike, ‘What the heck? What's Laure thinking?” she cep, “Wha i tink? 11 de was ding the same hig i another miner who used to spend time at their home}, and then he got asnerested iD ‘And then he'd come down to where you were every night and he'd say to me, ‘Go cheek David"... anything to get me out of the room. And I knew ... when Iwas walking down the sir at night Pl say to myself, guaranteed he's notin there. And ‘when I'd lookin, his papers would be spread out allover and he'd be gone. ... Right down othe basement, door closed” MIP Exs, C3 at 38:11-38:41, Bat 30-31 Plaintiff: Mes. Fine claims there was nothing sexual about her husband trying to get her ‘out ofthe oom soe could talk to these boys and she assumed he just preferred privacy. [Siegel Deck Ex, 1 at 244:21-2473. ‘The Tape: After Davis then responds, “Te did that everynight, though, fora Tong time,” ‘he continues: "I sid, "You know what? Go toa place where there's gay boys. Find yourselfa gay boy and nail the shit out ofhim. Get your—yeu know, get your rocks off and have itbe over with. You know, e just needs a ~ that male companionship tha can't give him. Nor she interested in me and vice versa” MIP Exs. C-3 at 34:45-34:54 Eat3l fF: Mrs. Fine claims the reference to “gay boys” was purely “sarcastic Jimply any suspicien of sexual activity with Davi. Siegel Decl Ex, 1 at 247:10-289:3 She acknowledged thatthe reference to her husband's lak of interest inher was about sex, but maintained that her reference to “male companionship” did not mean anything Sonal el a 24722(Case 5:12-cv-00836-DEP Document 98-26 Filed 09/30/15 Page 9 of 10 ‘TheTape: Davis wmninds Mis, Fine, “And [always told you about, like, how he'd “always try and getme inthe shower,” she says, “Yea, Ill have graphic memory of that. Thank you.” Davis esponded, “Well like, he would like, you know, just, Whenever you weren't there, you know, he'd would always ty and, like - you know, in the Jacuzzi, in Your Iacuz, 0 % to which she added, “Oh, You know, he'd say, you ‘know, “Bobby and ae going to go inte Jacu," and, ike, go to the bathroom. And I'd ty to come in, and the door would be locked.” MJP Exs.C-3 at 36:02:23, Eat 31 Plaintiff: Mes. Fine claims she had no suspicion of anything improper occurring inthe shower or Jacuzzi and her “graphic memory" was of Davis once alleging to her that her hhusband groped him there. Siegel Decl. Ex. 1 at 250:13-258:11 The Tape She tes Davis, “Vou did nothing wrong and you were a child, and he rook advantage ofthat” MIP Exs. C-3 at 36:50-56,E a 32 Plains; Mrs, Pie says that “taking advantage” was pethaps “a poor choice of words” because she really just meant hat Davis preferred more privacy when in the bathroom, She also again claimed that Davis was not really “a child” i the sense of being « minor at the time frame she was diseussing. Siegel Decl. Ex. | at 253:14-285:18 ‘The Tape: Mis, Fine says that "as fr as having any sexual love relationship [with her inusband? That isnonexistont. Totally" and adds “I have nothing.” NIP Exe 3742-53, Bat 34 Plaintiff; Plainielaims tht he remark that “Ihave nothing” di not refer to her lack of any current “sexual love relationship,” but rather meant “I have nothing more to add.” Siegel Decl. Ex. | at 260:21-262:12. “The Tape: Mis. Fie immediately follows tat exchange about her current sex ie by ‘saying, “I'm kind of stuk in, you knows, & had place. But when you came averto see me, bho was abandoning you... And then we tried to keep i separate, without him — just, never." 0 whien Davis responds, “And that's why itnever worked.” MIP Exs, C-3 at 37:53-38:10, Eat 4 Plsinff: Plaintidenies this refers to prior sexual relationship with Davis. Siegel, Decl, Ex. I at 26217-26655. The Tape Ths convertion thn uns ler boys fe aband took, and is Fine Says that AB on in and oto re ea. You know he's fucked up, nd you 8‘Case 5:12-cv-00896-DEP Document 98-26 Filed 09/30/15 Page 10 of 10, ‘wonder: What didhe [Bernie] do to him?" She then says, “I asked him if Bernie ever 4id anything, and be told me no... DoT believe it? No.” Davis agrees. MIP Exs, C3 at 38:49-39:20, Bat 33-34 | Plain: Plains’ first claimed that she was not refering to “anything sexual” but was talking about the ict hat “Bere gave him money”, that Mas having sex with some girl that we found out about, and that Bernie may havempraPbed” Lady onthe shoulder, but not ssxually. Siegel Decl Ex. | at 267:3-24.270:1S. She then reversed herself and said he did est whether anything sexual occurred, 1 at 271:10- ‘The Tape: Discusting Mr Fine's demands for sex in exchange for loans to Davis, she responds to Davis's statement that “it's not just the money” forher husband by saying, “Yes about the dich.” MIP Exs, C-3 at 42:24-26, Eat 37. Plains; Plaintffelaims she was being “facetious” and just “the}w it in there, Decl. Ex. fat 2748-2754 Siegel