Criminal Case (Center) 6040-07-20 State of Israel v. Arkadi Shkovitzky - part 92

The defendant did not report the threat he received and the fact that Biton boasted of bribing an IPS officer (p. 554).

771. The defendant explicitly stated that Amos had threatened him. He explained that Amos thought that he (the defendant) had not paid for the work done for the IPS, and for this reason he threatened him (p. 556). However, to the question of what exactly was Amos' threat or extortion against the defendant according to this explanation, the defendant replied that perhaps Amos and Biton had "an affair between them," and that Amos did not threaten him (the defendant) (p. 556).
772. Only a few minutes after conversation No. 2547 above (a long conversation), the defendant called Amos and asked to hold a conference call with him and Biton (call no. 2552). The defendant denied the plaintiff's claim that he had called Amos under pressure that Amos would continue to spread his claims regarding a bribery relationship between Biton and the defendant (p. 557). The defendant refused to confirm that he had sounded nervous during the conversation, and claimed that he had tried to explain to Amos that he was not the payer (p. 557).
773. Later in the evening, in call No. 2554, the defendant spoke with Biton and asked him to "remove me from ... all your affairs", noting the phone call he received from Amos, in which he threatened to sue the plaintiffs under various laws (referring to the National Unit for the Investigation of Prison Guards - p. 558).

In relation to this conversation, the defendant again claimed that Amos thought that the defendant did not pay Biton and that for this reason Biton did not pay Amos. The defendant claimed that he asked Biton to explain to Amos that he (the defendant) was not the party paying him (p. 558). The defendant rejected the argument that if it were not for the subject of the bribe, he would not have been interested in all this (pp. 558-559).

774. Later that evening, in call number 2562, Simon Gridish called the defendant, reassured him and asked him to ignore the call he had received from his brother Amos. Shortly afterwards, in call number 2564, Biton spoke with the defendant and asked to make sure that Simon had spoken to him and calmed him down. In this conversation, Biton told the defendant, "Everything is closed, everything is fine, be calm," and later on: "What is between you and me is to bury." The defendant reiterated in his testimony that he did not know what Amos' threat was to him. When the prosecutor said that the threat was that Amos would complain about the defendant to the MBS, the defendant replied, "Maybe it's their business, it's not what I'm connected to" (p. 560). When asked by the prosecutor whether Biton intended that he would take the bribe relationship between them to the grave, the defendant denied receiving a bribe or a gift, let alone from Biton, "who also has no money to bring to the family" (p. 560).
775. In conversation No. 3128 of May 3, 2018, Biton and the defendant talked about the fact that the contractor. Michaeli, the main contractor, was delaying the check, which in any case is also a postponed check - current plus 90. According to the conversation, the defendant planned to travel to Eilat on Sunday afterwards. Later in the conversation, Biton said that he would detail the check, and that "no matter where you are in Eilat, I will arrange it for you..." The defendant confirmed in his testimony that he had spoken to a subcontractor about a check he had received from the main contractor, but claimed that he had done so on a specific basis in that case because Commander Abu Kabir had called and complained that the contractor had not been coming for several days and had not finished the work. Since it was a security matter, the defendant tried to call the main contractor. The main contractor was abroad, so the defendant called Biton (the subcontractor), asked why they had stopped working, and Biton replied that he had no money to buy materials because the contractor had not paid him.

The defendant called the brother of the main contractor, asked to promote the project, to replace a subcontractor or to give him materials, and the matter worked out, since the main contractor gave him a check. The defendant insisted in his testimony that he wanted to promote the project and did not deal with financial matters for no reason (p. 561).

776. The defendant confirmed that the conversation took place shortly before his trip with the defendant to Eilat (p. 562). When asked what Biton meant when he said about the shredding of the check and "no matter where you are in Eilat, I will arrange for you what needs to be arranged," he replied that he did not remember, and added that the problem was that the check was rejected and the defendant also had to sign the check, and therefore he asked his assistant, who took his place, to sign the check (p. 562). The prosecutor confronted the defendant with his previous statements, according to which he did not talk to subcontractors. The defendant replied that Biton spoke to him because Morris was abroad. When the prosecutor noted that the defendant had conversations with Morris and Morris and also testified, the defendant replied that Morris had apparently returned, but when he, the defendant, came to the scene and saw that the project was not being carried out, Morris did not answer the phone (p. 563). The defendant rejected the argument that Biton intended that the defendant would make sure that he would receive the check and Biton would obtain cash, and that no matter where the defendant was, even in Eilat, Biton would arrange the bribe for the defendant (p. 564).
777. In conversation No. 3477 of May 16, 2018, Biton told the defendant that he had met with Morris the day before and had received a check from him that was due a month and a half later. Biton said in the conversation that he would try to break out the check the next day. In his testimony, the defendant denied the claim that in this conversation Biton informed him about the payment of the defendant's part – the bribe (p. 564).
778. In conversation No. 3550 of May 27, 2018, Biton promised the defendant that the matter of the check would be sorted out the next day. This is the third time that the two have discussed this. Regarding the fact that the defendant repeatedly talks to a subcontractor about a check he receives and details it, when a construction officer in the IPS is not supposed to talk to subcontractors about cashing checks, the defendant replied that Biton explained to him that he had no money and that as soon as he had money he would purchase the material (p. 565).
779. In call No. 4335 of June 13, 2018 at 21:51, Biton and the defendant coordinate to meet. The defendant is at home and Biton leaves Tel Aviv in his direction and promises to call him. To the question of whether it is customary for subcontractors to come to him at night, the defendant replied that Biton came not as a subcontractor, but because he needed his help in filling out forms for a TAMA 38 project. The defendant claimed that the day before, Biton had asked him to go to Tel Aviv to see the project (p. 565). In conversation No. 4336 at 10:15 p.m., Biton informed the defendant that he was "downstairs," and the defendant replied that he was going down to him. Regarding this conversation as well, the defendant claimed that the context was the help he had provided to Biton on the subject of TAMA 38 (p. 566).

Charge 14 - The accuser's summaries

780. The accuser referred to Biton's testimony in his main interrogation, according to which he brought the defendant the tax invoice after he finished his work, received the money at the end of the month, and transferred NIS 7,000 to the defendant in cash. Biton did retract his testimony in the main interrogation and his confession in court, but he was declared a hostile witness and a number of exhibits were submitted in his case under section 10A of the Evidence Ordinance. The accuser argued that Biton's statement, which he confessed at his trial and also confirmed what was stated in his main interrogation, should be preferred to his version that was changed in the cross-examination.
781. The accuser also referred to the sequence of conversations between the Gridish brothers, who were employed under Biton, and the defendant. During the conversations, Amos Gridish threatened the defendant that he would expose the corrupt relations between Biton and the defendant. In response, the defendant became nervous, called Biton and threatened him that if he did not deal with and calm the situation with Amos, he (Biton) would no longer work in the IPS. The accuser noted that the defendant was also on the line in the conversation, and from the conversation it was clear that she was aware of the corruption of her accused husband.
782. The accuser also referred to the conversations between the defendant and Biton, regarding the coordination of the receipt of Biton's check and then the payment of the bribe (after the check was deducted).
783. According to the accuser, the inflating of the bill of quantities and the price quote began with the defendant's demand from Morris, the main contractor (both on behalf of Bitolite and on behalf of M. Michaeli). In his testimony, Morris referred to the issue of the defendant's status and influence in relation to Morris in the IPS and explained that if he had not listened to the defendant, it might have harmed him in the course of his work in the IPS. Morris noted in his testimony that he had indeed increased the price quote as the defendant had instructed him to do. The defendant did not deny that he had dictated to Morris to increase the bill of quantities, contrary to his general claim that he had no ability to dictate to contractors price quotes and bills of quantities.

It was further claimed that this balance enabled the defendant to then contact the subcontractor Biton and demand from him his share of the inflating accordingly.

784. The accuser referred to Morris' statement in his testimony that he did not choose Biton, but that the defendant chose the subcontractor for him. Biton also testified that the defendant arranged the work for him. The defendant denied this, but did not cross-examine Biton on this point.

Charge 14 - Defense Summaries

785. The defense denied everything attributed to the defendant. It was argued that a subcontractor does not give price quotes. In addition, an order for the execution of a project is opened according to the criteria of a tender and on the basis of bills of quantities and not on the basis of a price quote from a subcontractor to a main contractor. In addition, a construction officer cannot influence the bids of a subcontractor to a main contractor, and there is no relationship of dependency and control between a construction officer and a subcontractor.
786. It was argued that the defendant had no ability to know what was going on between the main contractor and the subcontractor. It was noted that Bitolit was the main contractor, but not Bitolite, but M. It was Michaeli who received an invoice from Biton and issued Biton a check. According to the defense, this matter raises questions.
787. During a routine visit to the project in Abu Kabir, the defendant saw that the project was not progressing and that the contractor and the workers were not in the field. The defendant called the main contractor to find out, and the latter replied that he had no idea and that Biton was supposed to carry out the project.

The defendant called Biton and understood that Biton lacked money to purchase raw materials and pay the workers, and that Biton had agreed with the main contractor that he would give him a down payment. The defendant called the main contractor again and made it clear to him that the project had to be completed on time. When the defendant arrived in Eilat for a family vacation, Biton called him, thanked him for talking to Morris, and told him that Morris wanted to meet with him (Biton) and pay him by check. The defendant told Biton that he was with his family on vacation in Eilat. While he was in Eilat, Biton called him several more times, and in one of the conversations Biton told him that he also wanted to come to Eilat. The defendant ended the call and did not answer any further calls from Biton. The defendant has no idea about the check Biton received.

788. One day, Biton called the defendant, and the defendant told him that he was on vacation, was renovating the kitchen in his house, and was getting into trouble with two tiles that he was unable to replace. Biton came to the defendant's house and helped him arrange the tiles.

Charge 14 - Hearing

789. Biton, who is, as stated, defendant 5 in the indictment before me, pleaded guilty to the aforementioned in Charge 14, on December 8, 2020, in a hearing held before the Honorable Judge A. Kobo, as part of a plea bargain and an amended indictment in his case (in which the charge of theft together was dropped). Biton was convicted of the offense of bribery to the defendant. As can be seen, in the course of his testimony before me, in the main interrogation, Biton approved the payment of NIS 7,000 to the defendant (even though he claimed that it was a gift and not a bribe). However, later on, at the cross-examination stage, Biton categorically denied everything attributed to him and the defendant. In the circumstances of the case, I am of the opinion that Biton's confession of December 8, 2020, meets the conditions set forth in section 10a(a) of the Evidence Ordinance: there is no dispute that Biton gave the statement (the confession) before the Honorable Judge Kobo; Biton is a witness in the defendant's trial and the parties were given an opportunity to cross-examine him; Biton denied the content of the statement in his testimony before me. Regarding the admission of a witness's confession in his own trial as an "external statement" under section 10a(a) of the Evidence Ordinance, see Criminal Appeal 5905/04 Solomon v. State of Israel (October 9, 2007, paragraph 16) and the references appearing therein).
790. I am of the opinion that Biton's foreign statement (his confession of December 8, 2020) should be preferred to his testimony in the cross-examination before me, in accordance with section 10(c) of the Evidence Ordinance. From the very beginning of his testimony, in the main interrogation, although he did not deny the transfer of the money to the defendant, it was possible to get the impression that Biton wished to refrain from giving incriminating testimony against the defendant. He claimed that he closed a plea bargain only because of his and his wife's health condition, and also claimed a mistake in the plea bargain itself, in that the payment to the defendant was supposed to be indicated as a gift, but at the end of the day it was noted as a bribe. Thus, he also refused to explain why he said to the defendant: "What is between me and you is to bury." Biton's testimony in the main interrogation included both confirmation of the transfer of the funds and an expression of his reluctance to testify about the defendant's obligation, and this taught me that the statement of the outside party should be preferred to the testimony in the cross-examination, in which, as stated, he chose to deny everything attributed to him, including the transfer of the funds to the defendant, and was declared a hostile witness.
791. There is additional evidence that strengthens what was stated in Biton's confession, as I will detail below, so that our case also deals with section 10a(d), according to which a person will not be convicted on the basis of a statement that was accepted under this section unless there is something in the evidence to support it. The telephone conversations (Nos. 3128 and No. 3477) in which Biton informed the defendant of his intention to detail the check that he was going to receive from Mem. Michaeli and said to the defendant, "No matter where you are in Eilat, I will arrange for you there" and "I will arrange for you what is necessary", while in his testimony he explained that he intended to give the defendant NIS 7,000, constitute clear reinforcement. Similarly, call No. 4335 and call No. 4336 from the evening hours of June 13, 2018, in which Biton and the defendant arranged to meet late in the evening under the defendant's home, strengthen the claim that Biton came to deliver a sum of money to the defendant. Various explanations were given in relation to this meeting – Biton claimed that he had come to deliver tiles to the defendant, while the defendant stated that Biton had called him and asked him for a bill of quantities as part of a TAMA 38 project, but the defendant explained to him that he was busy renovating the kitchen and that Biton finally helped him cut and lay tiles in the kitchen. It should be noted that these contents did not come up in the conversations themselves, and Biton was not even cross-examined in relation to the defendant's version regarding his assistance in the TAMA 38 project (a subject that did not come up in Biton's testimony at all).

The comparison between the explanation given by Biton that in this meeting he gave the defendant nothing but tiles, and the defendant's statements, which indicate that he already had the tiles in his hand, whereas Biton happened to go up to his house and helped him cut and lay them, raises clear question marks, certainly when it comes to a meeting that took place late in the evening (after 10:00 P.M.) and when the defendant goes down to meet Biton under the house.