4184 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 2 - - - - - - - - - - - - - - X 3 UNITED STATES OF AMERICA, : CR 96 1016(S-1) 4 v. : U.S. Courthouse 5 Uniondale, New York BRUCE W. GORDON, WHO'S WHO 6 WORLD WIDE REGISTRY, INC., : STERLING WHO'S WHO, INC., 7 TARA GARBOSKI, ORAL FRANK : OSMAN, LAURA WEITZ, ANNETTE 8 HALEY, SCOTT MICHAELSON, : STEVE RUBIN, and MARTIN 9 REFFSIN, : TRANSCRIPT OF TRIAL 10 Defendants. :February 13, 1998 11 - - - - - - - - - - - - - - X 1:30 o'clock p.m.
12 BEFORE:
13 HONORABLE ARTHUR D. SPATT, U.S.D.J. and a jury 14 APPEARANCES: 15 For the Government: ZACHARY W. CARTER 16 United States Attorney One Pierrepont Plaza 17 Brooklyn, New York 11201 By: RONALD G. WHITE, ESQ. 18 CECIL SCOTT, ESQ. Assistant U.S. Attorneys 19 For the Defendants: NORM
AN TRABULUS, ESQ. 20 For Bruce W. Gordon 170 Old Country Road, Suite 600 21 Mineola, New York 11501
22 EDWARD P. JENKS, ESQ. For Who's Who Worldwide 23 Registry, Inc. and Sterling Who's, Who, Inc. 24 332 Willis Avenue Mineola, New York 11501 25 (cont'd)
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4185
1 APPEARANCES (cont'd):
2 GARY SCHOER, ESQ. For Tara Garboski 3 6800 Jericho Turnpike Syosset, New York 11791 4 ALAN M. NELSON, ESQ. 5 For Oral Frank Osman 3000 Marcus Avenue 6 Lake Success, New York 11042
7 WINSTON LEE, ESQ. For Laura Weitz 8 319 Broadway New York, New York 10007 9 MARTIN GEDULDIG, ESQ. 10 For Annette Haley 400 South Oyster Bay Road 11 Hicksville, New York 11801
12 JAMES C. NEVILLE, ESQ. For Scott Michaelson 13 225 Broadway New York, New York 10007 14 THOMAS F.X. DUNN, ESQ. 15 For Steve Rubin 150 Nassau Street 16 New York, New York 10038
17 JOHN S. WALLENSTEIN, ESQ. For Martin Reffsin 18 215 Hilton Avenue Hempstead, New York 11551 19
20 Court Reporter: HARRY RAPAPORT, CSR United States District Court 21 Two Uniondale Avenue Uniondale, New York 11553 22 (516) 485-6558
23 Proceedings recorded by mechanical stenography, transcript 24 produced by Computer-Assisted Transcription 25
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4186
1 A F T E R N O O N S E S S I O N
2
3 (The following takes place in the absence of the
4 jury.)
5 THE COURT: I see that Mr. Nelson and
6 Mr. Trabulus got here all right?
7 You were taken care of promptly?
8 MR. NELSON: Yes.
9 THE COURT: There has been a waiver by
10 Mr. Reffsin and Mr. Wallenstein; is that correct?
11 MR. GEDULDIG: Yes.
12 THE COURT: And you are representing Mr. Reffsin 13 today; is that correct, Mr. Geduldig?
14 MR. GEDULDIG: That's correct.
15 MR. NEVILLE: There are some people back there
16 who are having too much fun.
17 THE COURT: Since they are my people I better get
18 back there.
19 (Whereupon, the jury at this time entered the
20 courtroom.)
21 THE COURT: Good afternoon, members of the jury.
22 Please be seated.
23 Again my compliments. I timed it, 1:27, you were 24 all here, not 1:30, 1:27. 25 You may proceed.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4187
1
2 D E B R A B E N J A M I N ,
3 called as a witness, having been previously
4 duly sworn, was examined and testified as
5 follows:
6
7 REDIRECT EXAMINATION (cont'd)
8 BY MR. WHITE:
9 Q Now, Ms. Benjamin, do you
recall yesterday you were
10 asked questions by Mr. Nelson about the four levels of
11 review of customer's qualifications?
12 A Yes.
13 Q Now, I want to go over with you those levels of
14 review.
15 The first one that Mr. Nelson talked about was
16 the selection of the mailing lists themselves; do you
17 remember that?
18 A That's right.
19 Q And you were deeply involved in that; is that
20 correct?
21 A Yes.
22 Q Now, you also said yesterday in response to a
23 question from Mr. Trabulus, that except for unusual -- let 24 me rephrase the question. 25 Except in certain infrequent occasions, the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4188 Benjamin-redirect/White
1 actual tapes that had the names on the mailing list were
2 not usually at the Who's Who offices; is that right?
3 A That's rig
ht.
4 Q And they would go from the mailing list broker to the
5 mailing house; is that correct?
6 A That is correct.
7 Q Now, at the time that you were selecting the lists,
8 did you know even a single name on that list?
9 A Do you mean have knowledge of it? No.
10 Q So, if you bought a list of 50,000 names, how many of
11 those individual person's names would you know?
12 A None in advance.
13 Q And when you selected a list, would you know whether
14 any person whose name was on that list had any career
15 achievements?
16 A In some cases yes, and in some cases no.
17 Q Okay.
18 Tell us the cases where you would know the career
19 achievements?
20 A Well, when you segmented a list -- by segment, it is
21 broken down into different portions -- there were lists
22 selectable by title.
23 Q Now, aside from the title, just the person's
title, 24 would you know any other career achievements that they 25 had?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4189 Benjamin-redirect/White
1 A No.
2 Q Now, do you recall yesterday we looked at a list that
3 was purchased or rented of American Bar Association
4 members; do you remember that?
5 A That's correct.
6 Q Using that as an example, when you rented the ABA
7 list, would you know how long a member on that -- a person
8 on that list had been an attorney?
9 A No.
10 Q Would you know if they had just passed the bar?
11 A No.
12 Q Would you know if they were new in practice or were a
13 federal judge?
14 A No.
15 Q Would you know if they were respected by their peers?
16 A No.
17 Q Would you know if they ever won any case?
18 A No.
19 Q Would you know if they ever che
ated their clients?
20 A No.
21 Q Is that correct, the one fact you would know, and the
22 one fact only, is that they belong to the ABA?
23 A That's correct. 24 Q Now, you recall we also looked at mailing list rental 25 invoices that related to magazines; is that right?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4190 Benjamin-redirect/White
1 A That's correct.
2 Q And in that case would you know anything about the
3 job of the person other than perhaps the title?
4 A No.
5 Q Do you know their age?
6 A No.
7 Q Would you know their education?
8 A No.
9 Q Again, you would know one fact and only one fact
10 only, the fact that they subscribed to that magazine; is
11 that right?
12 A That's right.
13 Q Now, let's talk about the second level of screening
14 that Mr. Nelson asked you about.
What he identified as
15 the second level of screening is when the cards were
16 returned and they were sorted by members of the
17 administrative department; is that right?
18 A That's correct.
19 Q Now, who did this in administration?
20 A Well, people that worked under Liz Sautter.
21 Q And are those the people you referred to earlier as
22 the data entry girls?
23 A Yes. 24 Q And where did they do this? 25 A In the conference room.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4191 Benjamin-redirect/White
1 Q You said in response to Mr. Schoer's questions, that
2 they did this behind closed doors, right?
3 A Yes.
4 Q And after they finished sorting it, what did they do
5 with it?
6 A From my recollection they were put into decks of
7 cards and then were turned over to Liz. They were counted
8
and sorted.
9 Q And Liz put them in the administrative office under
10 lock and key, right?
11 A Yes.
12 Q And you weren't in the conference room when they were
13 sorting them regularly, were you?
14 A No.
15 Q And in fact, you weren't usually there, were you?
16 A No, not usually.
17 Q Do you recall several days ago Judge Spatt asked you
18 how long you were there, how often you were there and you
19 said once every couple of weeks you would maybe stick your
20 head in; is that right?
21 A That's right.
22 Q Mr. Schoer asked you, that insofar as you knew those
23 girls simply perused them; is that right? 24 A That's right. 25 Q And you said in response to Mr. Schoer's questions
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4192 Benjamin-redirect/White
1 you don't know if they pulled out unqualified peopl
e, do
2 you?
3 A No, I don't know for a fact.
4 Q So that is the second level of review. Let's talk
5 about the third level of review that Mr. Nelson
6 mentioned. That's the salesperson and what they did with
7 the card in the sales departments.
8 Now, were you involved in the telemarketing and
9 sales end of the business?
10 A No.
11 Q Did you ever walk up and down the aisles where the
12 salespeople were, listening to them on a regular basis?
13 MR. TRABULUS: Objection to form.
14 THE COURT: Leading?
15 MR. TRABULUS: Yes, and the term is
16 contradictory, did you ever, and then on a regular basis.
17 MR. WHITE: I will take out the "ever".
18 THE COURT: That's good, Mr. Trabulus. I didn't
19 pick that up. Sustained.
20 Q Ms. Benjamin, did you on a regular basis walk up and
21 down the aisles listening to what the salespeople did?
22 A Not on a regular basis, no.
23 Q Now, do you know of personal knowledge as to whether 24 a salesperson ever disqualified someone -- let me not fall 25 into the same trap I fell into before.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4193 Benjamin-redirect/White
1 Do you know if on a regular basis salespeople
2 disqualified members because of their qualifications, of
3 your own personal knowledge?
4 MR. TRABULUS: Objection to form, your Honor.
5 THE COURT: Overruled.
6 Q You can answer?
7 A I would like to just understand what you mean by
8 regular. I mean, there were sales people who went through
9 their decks and would eliminate cards.
10 Q Do you know of your own knowledge if they did that of
11 your own personal knowledge?
12 A Yes.
13 Q Now, did the sales people have a quota that they had
14 to
meet?
15 A That I wasn't a hundred percent sure of.
16 Q Well, did the salespeople work on commission?
17 A Yes.
18 Q So, the more salespeople made, the more money they
19 made, correct?
20 MR. JENKS: Objection, your Honor.
21 THE COURT: Overruled.
22 MR. GEDULDIG: I have an objection.
23 THE COURT: Since two have an objection, I will 24 listen now. Not that I didn't listen to you, Mr. Jenks, 25 of course.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4194 Benjamin-redirect/White
1 MR. GEDULDIG: Mr. White is asking a whole series
2 of questions regarding salespeople's job responsibilities,
3 and he is asking if she has knowledge of them having a
4 quota. That is precisely something she cannot answer.
5 MR. WHITE: Precisely my point, your Honor, they
6 went into this yesterday and she has no knowledge of
7
this.
8 MR. GEDULDIG: I didn't open any doors on behalf
9 of Ms. Haley. And I am objecting about Mr. White asking
10 Ms. Benjamin about job responsibilities of my client. I
11 didn't open any doors.
12 THE COURT: I don't know if you opened any doors
13 or not. I will let her answer the questions. If she
14 doesn't know, she will testify she doesn't know. She is
15 third in command of the operation, and I think she can
16 answer some of these questions. If she doesn't know, she
17 will say so.
18 MR. TRABULUS: I will object that it is beyond
19 the scope of the cross.
20 THE COURT: Not in my view. I think it is
21 precisely within the exact scope of the cross. Because I
22 recalled her being asked all these questions about certain
23 screening apparatus in place. 24 MR. TRABULUS: Yes. But not quotas and 25 commissions.
HARRY RAPAPOR
T, CSR, CP, CM OFFICIAL COURT REPORTER 4195 Benjamin-redirect/White
1 THE COURT: Well, that's part of the screening
2 apparatus.
3 MR. JENKS: I will ask you to instruct Mr. White
4 not to lead the witness. The last couple of questions
5 were leading in nature and they call for a one word
6 answer.
7 THE COURT: You are right. I have been letting
8 it go because I wanted to move it along. But you are
9 quite right.
10 MR. WHITE: I will try not to lead, your Honor.
11 THE COURT: And I also believed that those
12 leading questions were harmless.
13 Go ahead, but don't lead the question.
14 Q The last question was: If the salespeople were
15 working on commission, if they made more sales, they made
16 more money, correct?
17 A That's correct.
18 Q Now, the fourth level of review that Mr. Nelson
19 talked about is after the sal
e was made, there were the
20 same data entry girls who were supposed to put them, input
21 them into the computer; is that right?
22 A That's correct.
23 Q Were you in charge of those data entry girls? 24 A No, I was not. 25 Q Were they in a different department than you?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4196 Benjamin-redirect/White
1 A Yes.
2 Q Who at the company had primary responsibility for
3 reviewing the order forms after the sale was made?
4 A Primarily responsibility? Well, I believe it was the
5 group leaders and then it would go into administration.
6 Q Do you know who in administration?
7 A Well, Liz and Wendi Springer.
8 Q Now were you in the administration department?
9 A No, I was not.
10 Q Was Wendi in the administration department?
11 A Yes, she was.
12 Q Between you and Wendi
Springer, who would be in a
13 better position to know what screening was done at this
14 point?
15 MR. SCHOER: Objection.
16 THE COURT: Overruled.
17 A Could you repeat the question? I am sorry.
18 Q As between you in your position and Wendi Springer in
19 her position, who would be in a better position to know
20 just what screening went on after the sale was made?
21 A Wendi Springer, I presume.
22 Q I will ask you now about some of the benefits you
23 raised with respect to the members. 24 When was the first issue of Tribute Magazine? 25 A The end of 1993, the beginning of 1994.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4197 Benjamin-redirect/White
1 Q So, in 1990, 1991, 1992, and most of 1993, there was
2 no such thing, correct?
3 A I wasn't there in '90 and '91. I came at the very
4 end, the latter porti
on of '92.
5 Q While you were there, it wasn't there before the end
6 of '93, the beginning of '94; is that correct?
7 A Yes.
8 Q If you can look at the book in front of you at
9 Exhibit 288 in evidence.
10 Now, you identified that the other day as the
11 contract with Transnational related to the Airborne
12 Express; is that right?
13 A That's right.
14 Q Tell us, looking at the last page, what the date of
15 that contract is?
16 A January 31st, 1994.
17 Q Was that the inauguration of the Airborne Express
18 benefit program?
19 A I would presume it was.
20 Q So, that benefit was not available in 1993, correct?
21 A No.
22 Q It wasn't available in 1992, correct?
23 A No. 24 Q And before that you weren't at the company; is that 25 right?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4198
Benjamin-redirect/White
1 A All right.
2 Q Look at 289.
3 What benefit does that relate to?
4 A The auto insurance.
5 Q And looking at the front page of that document, when
6 was that contract signed?
7 A April 27th, 1994.
8 Q And the Airborne Express program wasn't available
9 prior to that date, was it?
10 A No. Excuse me, you mean --
11 Q The date on the contract?
12 A The auto insurance?
13 Q I am sorry, the auto insurance.
14 A No.
15 Q Do you remember when the postal inspectors executed
16 the search warrant at Who's Who's offices?
17 A It was March of 1995.
18 Q So, the Tribute, the Airborne Express, and the auto
19 insurance, were operative for about a year, maybe a little
20 more, a little less -- let me back up. They were in place
21 in the last year, approximately, of the company's
22 operation;
is that right?
23 A That is correct. 24 Q Do you know how long the company had been in 25 operation prior to 1994?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4199 Benjamin-redirect/White
1 A No, I don't.
2 Q If you can look in that book on page 324.
3 Now, that is a purchase order, correct?
4 A That is correct.
5 Q And that the one we reviewed two days ago when you
6 were ordering a series of lists and there was a letter
7 attached; is that right?
8 A That's right.
9 Q How much on that one occasion was Who's Who paying
10 for their mailing list?
11 MR. SCHOER: Objection. This was asked on direct
12 examination.
13 THE COURT: Sustained.
14 MR. WHITE: Your Honor, I am getting to a point.
15 Q Can you give us an idea, even in approximation, of
16 how much money was spent by Who's Who Worldwide and
17 Sterling on mailings per year?
18 A I would be afraid to make an approximation.
19 Q Well, that one order is over $100,000; is that right?
20 A That's right.
21 Q Do you recall testifying yesterday about what the
22 company's refund policy was?
23 A Yes. 24 Q Tell us your understanding of the company's refund 25 policy?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4200 Benjamin-redirect/White
1 A My understanding is if a member is displeased with
2 everything, then a refund is supposed to have been issued
3 very expediently.
4 Q Take a look at Government's Exhibit 54-G, like in
5 George, for Identification, and read it to yourself.
6 (Handed to the witness.)
7 Q Now, does that refresh your recollection that the
8 company did not always give refunds when a customer was
9 dissatisfied?
10 MR. T
RABULUS: Objection, your Honor.
11 THE COURT: Sustained.
12 Does that refresh your recollection with regard
13 to the refund policy of the company?
14 THE WITNESS: Well, I don't think there is enough
15 information in this letter. I mean this person may have
16 been a member for two years. Based on this letter, I
17 don't know.
18 THE COURT: In addition, I didn't think that your
19 memory needed to be refreshed, did it?
20 Are you familiar with the refund policy without
21 looking at any document?
22 THE WITNESS: My only understanding of it is that
23 it was handled through administration or sales, that's 24 it. My information is when people were displeased they 25 were issued a refund.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4201 Benjamin-redirect/White
1 THE COURT: All right.
2 MR. WHITE: That's my point, y
our Honor.
3 Q Were you in the department that handled a refund?
4 A No.
5 Q Did you ever handle one single refund yourself to a
6 customer?
7 A No.
8 Q Do you know if there were any restrictions as to when
9 a customer can get a refund or not?
10 A No.
11 Q So, you don't know that of your personal knowledge?
12 A No. If there was a time restraint, no.
13 Q Now, Mr. Trabulus asked you questions about the
14 conversation you had with Mr. Gordon where you told him
15 you thought the word nominee was misleading; do you recall
16 that?
17 A Yes.
18 Q And do you recall Mr. Gordon trying to convince you
19 that it was an accurate term?
20 A Yes.
21 Q And was he trying to do that at the meeting?
22 A Yes.
23 Q And did he make reference to a dictionary definition 24 of the word? 25 A Yes.
HARRY
RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4202 Benjamin-redirect/White
1 Q And Mr. Trabulus showed you a letter that he made
2 reference to?
3 A Yes.
4 Q After showing him those things and having the
5 conversation with him, were you convinced that it was an
6 accurate term?
7 MR. TRABULUS: Objection, your Honor.
8 THE COURT: Sustained as to form.
9 Q After that meeting, and after you were shown those
10 things by Mr. Gordon, did you have another meeting where
11 you expressed a similar concern after that?
12 A Yes.
13 Q And were you convinced by what he told you?
14 A No, not 100 percent.
15 Q Now, in March of 1995, you had a meeting with
16 Inspector Biegelman, Mr. Gordon and Inspector Pagano; is
17 that right?
18 A Yes.
19 Q And Mr. Schoer asked you if Inspector Biegelman told
20 you that you weren't doing
anything -- I am sorry.
21 Mr. Schoer asked you, indicated to you if you
22 were -- that Inspector Biegelman indicated to you if you
23 were doing anything wrong; do you recall that? 24 A Yes. 25 Q Did Inspector Biegelman indicate to you that Who's
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4203 Benjamin-redirect/White
1 Who Worldwide was doing anything wrong?
2 A No.
3 Q And at that meeting you were present; is that right?
4 A Yes.
5 Q And at that meeting did you tell Inspector Biegelman
6 that you thought that the company used mailing lists, but
7 told people they were nominated?
8 THE COURT: Overruled.
9 A I don't recall.
10 Q At that meeting did you tell Inspector Biegelman that
11 you personally thought the use of the word "nomination"
12 was misleading?
13 A I don't recall.
14 MR. TRABUL
US: Objection. There was no testimony
15 that that was subject to discussion.
16 MR. WHITE: That's my point.
17 THE COURT: Excuse me. From now on just the word
18 "objection". Overruled.
19 Q Let me ask Mr. Trabulus' question.
20 Was there any discussion whatsoever of the fact
21 that the company told people that they were nominated, but
22 they really used mailing lists?
23 A Off the top of my head, I don't recall. But to me, 24 what I am remembering is for me telling them what had 25 happened with Mr. Parks.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4204 Benjamin-redirect/White
1 Q You were asked by my count almost 20 times yesterday
2 whether you had any intent to deceive the members of Who's
3 Who. Do you recall those kind of questions?
4 A Yes.
5 Q The letters you sent out had a term in it that you
6 consi
dered misleading; is that right?
7 MR. JENKS: Objection.
8 THE COURT: Sustained as to form.
9 Q Did the letters you sent out have a term in it that
10 you considered misleading?
11 A That's a difficult thing to answer. Yes and no.
12 Q Explain what you mean.
13 A You asked me before if I was convinced or not
14 convinced by the word "nominated" and I said to you not
15 100 percent either way. It was shown to me it means
16 chosen or selected in the dictionary. If Mr. Gordon was
17 comfortable with that, so be it. That's how it was done.
18 Q Even if you were uncomfortable with it?
19 MR. DUNN: Objection.
20 MR. JENKS: Objection.
21 THE COURT: Overruled.
22 Q And after that meeting -- what was your answer?
23 A Yes. 24 Q And after that meeting you were sufficiently 25 uncomfortable that you had another meeting with it; is
H
ARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4205 Benjamin-redirect/White
1 that right?
2 A At a later date, yes.
3 Q What sort of concerns did you express at that
4 meeting?
5 A I just felt it caused confusions at some times.
6 Q And then even after -- let me back up.
7 So, what did Mr. Gordon say to you in that
8 meeting?
9 A If my memory serves me correctly, I believe we did
10 try letters with other forms in it.
11 Q Then did you have a conversation with Mr. Gordon
12 about the response rate to those letters?
13 A They didn't pull as well as the letters that had the
14 word "nominate" in it.
15 Q When you say it didn't pull, did someone say that?
16 A Yes.
17 Q Who?
18 A Mr. Gordon.
19 Q Were the words "nominated" subsequently reinserted
20 into letters at some point after that?
21 A Yes.
22 Q At some subsequent time did you send a letter to the
23 company's attorney? 24 A Yes, I did. 25 MR. WHITE: Your Honor, may I just have one
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4206 Benjamin-redirect/White
1 moment?
2 THE COURT: Surely.
3 (Whereupon, at this time there was a pause in the
4 proceedings.)
5 Q Now, Mr. Schoer asked you yesterday, if you believe
6 you deceived any members into joining Who's Who; do you
7 remember that?
8 A Yes.
9 Q Do you believe that you deceived members into
10 joining?
11 A I don't believe that I did.
12 Q Now, do you recall meeting with the government in
13 approximately the fall of 1997, at the postal inspector's
14 office in Hicksville with your attorney?
15 A Yes.
16 Q At that time did you tell the government that you
17 thought that c
ustomers would never buy memberships, if
18 they were told they came from mailing lists?
19 MR. NELSON: Objection.
20 MR. JENKS: Objection.
21 A Yes.
22 THE COURT: What grounds?
23 MR. NELSON: One, she indicated she hadn't 24 recalled making such a statement. Two, he is impeaching 25 his own witness here.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4207 Benjamin-redirect/White
1 THE COURT: Overruled on both grounds.
2 Mr. Jenks, you have an objection?
3 MR. JENKS: I will adopt Mr. Nelson's
4 objections.
5 THE COURT: All right.
6 MR. WHITE: Your Honor, I have no further
7 questions.
8
9 RECROSS-EXAMINATION
10 BY MR. TRABULUS:
11 Q Good afternoon, Ms. Benjamin.
12 A Good afternoon.
13 Q I think you indicated in response to a question by
14 Mr. White just now that with re
gard to the use of the word
15 nominate, it was Mr. Gordon -- Mr. Gordon said it was
16 correct by him, and, therefore, you regarded it as
17 correct, something to that effect?
18 A More or less.
19 Q Now, Mr. Gordon doesn't say, didn't say it was only
20 okay with him, but it was being utilized by Marquis Who's
21 Who, when he showed you that letter.
22 A Yes.
23 Q And he explained it wasn't just his letter, but that 24 reflected by Marquis Who's Who, using the word "nominate" 25 without at the same time mentioning the word "mailing
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4208 Benjamin-recross/Trabulus
1 list"; is that correct?
2 A Yes.
3 Q Now, you were asked by Mr. White -- withdrawn.
4 You indicated you were not 100 percent convinced
5 that the use of the word "nominate" was correct; is that
6 correct?
7 A Yes.
8 Q And you also say you were not convinced 100 percent
9 convinced the other way; is that correct?
10 A Yes.
11 Q And certainly Mr. Gordon seemed to have been
12 convinced 100 percent that it was okay; is that correct?
13 A Yes.
14 Q And you weren't convinced 100 percent beyond a
15 reasonable doubt that it was not correct, were you?
16 MR. WHITE: Objection.
17 THE COURT: Sustained.
18 Q Now, you testified that you couldn't recall whether
19 or not the subject matter came up in your that you
20 requested at Mr. Gordon's request with Inspector
21 Biegelman, you couldn't remember whether you had mentioned
22 that your company used mailing lists; is that correct?
23 A Yes. 24 Q Do you recall if any time during the conversation 25 with Inspector Biegelman you said anything false to him?
HARRY RAPAPORT, CSR, CP, CM OFFI
CIAL COURT REPORTER 4209 Benjamin-recross/Trabulus
1 Did you say anything false to Inspector Biegelman?
2 A At that meeting?
3 Q That's correct.
4 A No.
5 Q Did you hear Mr. Gordon speak to Inspector Biegelman?
6 A Yes.
7 Q Did you hear Mr. Gordon say anything that was false?
8 A No.
9 Q Was there any question that Inspector Biegelman asked
10 that you refused to answer?
11 A No.
12 Q Was there --
13 THE COURT: You are picking up speed rapidly,
14 Mr. Trabulus. I am back about two questions.
15 MR. TRABULUS: I will repeat.
16 THE COURT: As I said, I am sure the jury kept up
17 with you. I am just the one having the trouble.
18 Q Ms. Benjamin, is it correct that you did not refuse
19 to answer any question that Inspector Biegelman asked?
20 A That's correct.
21 Q Is it correct that you did not hear Mr. Go
rdon refuse
22 to answer any question that Inspector Biegelman asked?
23 A That's correct. 24 Q You didn't hear Mr. Gordon evade any question, did 25 you?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4210 Benjamin-recross/Trabulus
1 A No.
2 Q You didn't evade any question, did you?
3 A No.
4 Q And you had invited them to come to the offices of
5 Who's Who Worldwide to discuss with them the operation of
6 a competitor or another company, or also to discuss Who's
7 Who Worldwide's operation; is that correct?
8 A Correct, but except the meeting took place at
9 Sterling Who's Who.
10 Q I meant to say Sterling. I am sorry.
11 You were asked some questions concerning benefits
12 and when they first came into existence.
13 Is it correct that the Master Card benefit first
14 came into existence in 1993 at some po
int?
15 A Yes.
16 Q And arranging for these benefits was not simply like
17 going to the Airborne Freight office and dropping an
18 Airborne Freight envelope, was it?
19 A No, not at all.
20 Q It was a complicated process that took a period of
21 time, did it not?
22 A Yes, it did.
23 Q It involved credit checks and things of that sort; is 24 that correct? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4211 Benjamin-recross/Trabulus
1 Q And do you recall how long these things were in the
2 works before each one actually materialized?
3 A Not off the top of my head, but it was quite a few
4 months.
5 Q To clarify one point, with respect to the
6 administration, besides Liz Sautter and Wendi Springer,
7 were there others who reviewed the group cards -- the
8 cards after the group leaders re
viewed them?
9 A I imagine it would be anybody in that department.
10 Q Was that your understanding?
11 A Yes.
12 Q You were asked as to whether you personally knew
13 whether or not the data entry people pulled inappropriate
14 cards before they were distributed to the salespeople, and
15 I think you said you of your own personal knowledge did
16 not see that; is that correct?
17 A Yes, that's correct.
18 Q But was it your understanding that they were supposed
19 to?
20 A Yes.
21 Q Did Mr. Gordon ever complain to you that they weren't
22 doing that?
23 A Not that I recall. 24 Q Did Mr. Gordon ever complain to you -- did you hear 25 him complain that other people weren't doing their job
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4212 Benjamin-recross/Trabulus
1 appropriately?
2 A Yes.
3 Q You have been asked by quite a few people about the
4 fact that the cards and related materials were kept behind
5 the door, and sometimes were kept locked; do you recall
6 that?
7 A Yes.
8 Q And the cards were considered to be a valuable asset
9 of the company, were they not?
10 A Yes, they were.
11 Q Indeed, Mr. Gordon would sometimes talk about how
12 much it would cost him for each card on a per card basis;
13 is that correct?
14 A Yes.
15 Q When Joe Parks left and started a competing business,
16 did he take information with him?
17 A Yes. I believe he did.
18 Q And he took valuable information and contacted
19 customers himself and basically stole that business?
20 A That's correct.
21 Q Is that a major reason why things in administration
22 were kept separate from salespeople, so if someone wanted
23 to do something like
what Joe Parks did, they couldn't do 24 it? 25 A That would make sense.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4213 Benjamin-recross/Trabulus
1 Q There was some conversation concerning nomination
2 ballots, and I wanted to qualify something. There was
3 actually places on the nomination ballots where the member
4 making the nomination could check off that they wanted to
5 remain anonymous; is that correct?
6 A That's correct.
7 Q And so, if a salesperson were to tell somebody that
8 somebody had nominated them, but they wished to be
9 anonymous, that could well be true?
10 A Yes, it could be.
11 Q Now, you were asked whether or not a salesperson
12 would make more money through his or her commission by
13 making additional sales; is that correct?
14 A That is correct.
15 Q Now, if a salesperson made a sale -
- I am putting the
16 word "sale" in quotes, to somebody's card who would later
17 be pulled by the group leaders or Wendi Springer or
18 someone working in administration because they weren't
19 appropriate, that salesperson wouldn't make money on that
20 sale; is that correct?
21 A I would presume that would be the way it would be
22 handled.
23 Q In fact, that salesperson would have wasted his or 24 her time in making the sale to the person, when they could 25 have appropriately put the card back and making the sale
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4214 Benjamin-recross/Trabulus
1 from an appropriate person; is that correct?
2 A Yes.
3 MR. TRABULUS: No further questions.
4
5 RECROSS-EXAMINATION
6 BY MR. SCHOER:
7 Q Ms. Benjamin, I think Mr. White asked you -- good
8 afternoon, I'm sorry.
9 A Good afternoon.
10 Q I think Mr. White asked you about a meeting you had
11 with the government in the fall of 1997?
12 A In '97, yes.
13 Q And do you remember when that was in '97?
14 A It was -- I am not sure if it was in '97. I don't
15 think it was in '97. I am sorry.
16 Q You remember the conversation?
17 A Yes.
18 Q You remember the question that Mr. White asked you
19 concerning -- the very last question he asked you?
20 A Yes.
21 Q And he talked about a conversation you had with the
22 government?
23 A Yes. 24 Q Do you remember when that was? 25 A I believe he was referring to the meeting that we had
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4215 Benjamin-recross/Schoer
1 in the post office in Manhattan, if I am correct.
2 Q The post office in Manhattan?
3 A Uh-huh.
4 Q Was your attorney present at that meeting?
5 A Yes.
6 Q And which attorney was that?
7 A Frank Agostino.
8 Q And that's the first meeting that you had in January
9 of 1996?
10 MR. JENKS: 11th.
11 Q Yes?
12 A Yes.
13 Q And at that meeting Mr. White was present?
14 A Yes.
15 Q And Mr. Biegelman, Inspector Biegelman was present?
16 A That's correct.
17 Q And your attorney, Mr. Agostino; is that right?
18 A That's correct.
19 MR. SCHOER: Judge, this is going to take some
20 time. I am going to ask Ms. Benjamin to look at the notes
21 of that meeting.
22 THE COURT: What is the question, Mr. Schoer?
23 MR. SCHOER: Eight pages. 24 THE COURT: What is the question? 25 MR. SCHOER: The question is, I am going to ask
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4216 Benjamin-recross/Schoer
1 her if there is anywhere in the notes of that meeting that
2 reflects that she made a statement concerning whether or
3 not members would have accepted membership if they knew
4 they were from mailing lists. The question that was asked
5 by Mr. White.
6 MR. WHITE: If I can speak to Mr. Schoer for a
7 moment, it may or may not have some bearing on this.
8 THE COURT: Go ahead.
9 (Mr. White confers with Mr. Schoer.)
10 Q Did you have a meeting with Mr. White in the fall of
11 1997 at the Hicksville post office?
12 A Yes.
13 Q And was your attorney present at that meeting?
14 A I believe he was, yes.
15 Q Do you remember what attorney that was?
16 A Peter Tommaso.
17 THE COURT: Peter who?
18 THE WITNESS: Tommaso.
19 MR. SCHOER: T O M M A S O.
20 Q And who else was present besides yourself and
21 Mr. Tommaso and Mr. White
?
22 A Inspector Pagano.
23 Q At that meeting did anyone take any notes? 24 A I don't recall. 25 Q Do you recall Mr. White or Mr. Pagano taking notes of
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4217 Benjamin-recross/Schoer
1 anything you said?
2 A I really don't recall if they did or not.
3 MR. SCHOER: Can I have a stipulation from
4 Mr. White that there are no notes of that meeting at all?
5 MR. WHITE: There are no notes.
6 Q At the other meetings that you had there were notes
7 that were being taken by Mr. Biegelman, or Mr. White, or
8 Mr. Pagano, someone from the government; is that correct?
9 A Yes.
10 Q So that one meeting, no notes, as far as you
11 remember?
12 A As far as I remember, no.
13 Q Okay.
14 You indicated concerning the refund policy, you
15 were under the impression that th
at was the policy as you
16 stated it; is that correct?
17 A Yes.
18 Q And it was your impression based upon everything you
19 observed at the company, and what you were being told by
20 Mr. Gordon; isn't that so?
21 A That's correct.
22 Q Is that similar, that it was your impression that as
23 the girls in administration were sorting through the cards 24 in that initial selection level, that they were in fact 25 perusing the cards as you said, and pulling cards of
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4218 Benjamin-recross/Schoer
1 people who were unqualified?
2 A That was my impression.
3 Q That was your impression, based on everything you saw
4 and everything you were told while you were at the
5 company; is that right?
6 A That is correct.
7 Q And you had no reason based on what you saw and what
8 you heard to doubt that impression, to question that
9 impression, right?
10 A Correct.
11 Q Do you think based on what you observed concerning
12 those cards, if a card came in in crayon, that that card
13 would have been pulled?
14 A Yes.
15 Q And obviously if it was a card of a young child, it
16 would have been pulled?
17 A Yes.
18 Q And so, when you say they perused the cards, they at
19 least looked through the cards to that extent so they
20 would know if the cards were answered -- well, withdrawn.
21 They would know if a card was in crayon or not,
22 right?
23 A Yes. 24 Q And the last level of selection, the one that related 25 to administration and Wendi Springer and the data entry,
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4219 Benjamin-recross/Schoer
1 by the girls, and I will say lady,
you were involved
2 because Wendi Springer came to ask you questions; is that
3 correct?
4 A Yes.
5 Q And when she came to ask you questions, she would ask
6 a question as to whether a particular person was qualified
7 to be a member; is that right?
8 A Yes.
9 Q And those are the questions she was asking, and she
10 was asking your opinion, based on this information, do you
11 think this person fits into our criteria to become a
12 member; is that right?
13 A Yes, that's right.
14 Q And you would tell her, no, right, if you felt that
15 the person didn't fit into the criteria?
16 A Yes.
17 Q And you did that on many occasions; is that right?
18 A On the occasions where it was appropriate, yes.
19 Q Well, there were occasions where it was appropriate
20 that people were unqualified?
21 A Yes.
22 Q You said you did not have t
he intent to deceive; is
23 that right? 24 A That's right. 25 Q Was it your belief after working there, based on your
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4220 Benjamin-recross/Schoer
1 experience, based on what you heard and what you saw, that
2 the business of Who's Who Worldwide was a scheme to
3 defraud someone --
4 MR. WHITE: Objection.
5 Q Anyone?
6 THE COURT: Overruled.
7 Q You can answer.
8 A No.
9 Q You didn't think it was a scheme to defraud, right?
10 A No.
11 Q You didn't feel it was a scheme to take away people's
12 money by trick or deception?
13 MR. WHITE: Objection.
14 THE COURT: Overruled.
15 Q Right?
16 A Right.
17 Q You didn't think that you or the other people there
18 were making false representations to people with intent to
19 deceive them
, did you?
20 A No.
21 Q Thank you.
22 Have a nice wedding.
23 A Thank you. 24 25
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4221 Benjamin-recross/Lee
1 RECROSS-EXAMINATION
2 BY MR. LEE:
3 Q Hi, Ms. Benjamin.
4 Now, you recall that Mr. White went over with you
5 these levels of screening, do you recall that?
6 A Yes.
7 Q Mr. White just asked you that.
8 Now, it would be a fair statement by me that the
9 more screening policies that Who's Who Worldwide put into
10 place, that actually reduced the pool of people that might
11 eventually purchase a membership from Who's Who Worldwide;
12 is that correct?
13 A That would make logical sense.
14 Q So, in fact, the placement of these four levels of
15 screening would at least in one respect work against the
16 interest of Wo
rldwide; is that correct? As I said, it
17 would reduce the pool of people who would purchase a
18 membership; is that right?
19 A Yes.
20 Q For example, Mr. White, he asked you about the ABA
21 list. Do you recall that?
22 A Yes.
23 Q Now, he didn't ask you, did he -- now, you were part 24 of -- you were the director of marketing? 25 A That's correct.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4222 Benjamin-recross/Lee
1 Q And based on your training, you had to make sure that
2 your product fit the market that you were targeting; is
3 that correct?
4 A That's correct.
5 Q And when you decide on the person you are going to
6 target, you want to target a person who would have some
7 use for your product, and the things that it would offer
8 to that person who would purchase it, is that correct?
9 A Corre
ct.
10 Q And in deciding when you segmented listed, and
11 decided who to target, you looked for people who could
12 benefit from networking, correct? That was one of the
13 rationales?
14 A Yes.
15 Q And an attorney, whether it is someone who just
16 passed the bar, who may need the networking more than an
17 experienced attorney, in your opinion an attorney is
18 someone who would benefit from networking?
19 A Yes.
20 Q That's the type of person you would look for; is that
21 correct?
22 A Yes.
23 Q And when making your demands of a mailing list 24 company, you would have that in mind, you would try to 25 segment, focus on those people who would have a need for
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4223 Benjamin-recross/Lee
1 your product, right?
2 A Yes.
3 Q But, also, as far as salespe
ople screening people
4 they were talking to on the phone, you were aware that
5 that was occurring, of course, that salespeople after
6 repeating their interview, they would actually reject
7 people; is that correct?
8 A Yes.
9 Q And you recall, do you not, on a regular basis that
10 Laura Weitz would reject people after conducting an
11 interview of them on the phone?
12 A Laura in particular, yes.
13 Q Particularly?
14 A Yes.
15 Q And would I be fair to say that on the one hand, it
16 would work against the Who's Who Worldwide's interest to
17 be so selective, and on the other hand, it would be in
18 line of the Who's Who policy of trying to maintain a high
19 standard to have all these screening processes in place;
20 is that correct?
21 A Yes.
22 Q And that's one where you as the director of marketing
23 and administration, one
of the overriding rationales in 24 everything that Who's Who did was to try to maintain a 25 high standard; is that correct?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4224 Benjamin-recross/Lee
1 A Can I correct you on one thing. I was director of
2 marketing and not administration.
3 Q I apologize. But as director of marketing, you were,
4 of course in agreement with Who's Who's policy in trying
5 to maintain a high standard as far as the membership is
6 concerned?
7 A Yes.
8 Q To be selective, yes?
9 A Yes.
10 Q Now, if Who's Who then provided a script to the
11 salespeople, if the statement in the script was, and if
12 the salesperson reading the script, stated to the member
13 they are interview, we try to maintain a high standard,
14 that's a statement that would be accurate; is that
15 correct?
1
6 A I would have no knowledge of what would be in the
17 scripts.
18 Q The question was: If a salesperson made a
19 statement -- you knew that salespeople were provided with
20 some sort of a pitch sheet or a script; is that correct?
21 A Yes.
22 Q I am saying if that salesperson read a script that we
23 are trying to be selective, and if that salesperson made 24 the pitch, made the statement to the prospective member, 25 that statement would be accurate; is that correct?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4225 Benjamin-recross/Lee
1 A Yes.
2 Q And it would be a basis in fact, if that salesperson
3 were to state to people, we try to maintain a high
4 standard, that would have a basis in fact?
5 A Yes.
6 Q It is not something fabricated out of thin air, is
7 it?
8 A No.
9 MR. LEE: I have no furth
er questions.
10
11 RECROSS-EXAMINATION
12 BY MR. GEDULDIG:
13 Q Ms. Benjamin, when Mr. White was asking you some
14 questions, he was asking you a series of questions
15 regarding the operations of the administrative office at
16 Who's Who Worldwide; is that correct?
17 A Yes.
18 Q It is fair to say that the various office at Who's
19 Who Worldwide were kept separate and apart, and one office
20 was not permitted to function with regard to another
21 office?
22 A That's correct.
23 Q In fact, the offices were told by Mr. Gordon not to 24 inquire as to what the other offices did and how they did 25 it; is that correct?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4226 Benjamin-recross/Geduldig
1 A That is correct.
2 Q Is it correct to say that when asked questions about
3 the operation of the adm
inistration office, Ms. Sautter
4 would be able to testify knowledgeably and intelligibly?
5 A Absolutely.
6 Q She was in charge of that office?
7 A That's correct.
8 Q Did you have anything to do with the operation of the
9 administrative office?
10 A In reality, no.
11 Q And when asked questions by Mr. White, would it be
12 correct that Ms. Sautter might give answers that are
13 somewhat different than what you have given here today?
14 A It's possible.
15 Q Now, you said the various offices were kept separate
16 and apart, and that there was a rule with the company for
17 people in one office not to be too inquisitive as to what
18 is going on in the other office; is that right?
19 A That is correct.
20 Q You testified about an operation of the
21 administration office by Mr. White, on the cross, with
22 regard to the selection process th
at the data entry girls
23 were in a room doing some selection of cards; do you 24 recall that? 25 A The sorting of cards, yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4227 Benjamin-recross/Geduldig
1 Q And that was an operation that was overseen by Liz
2 Sautter; is that right?
3 A Yes.
4 Q And there were times you would go into that room and
5 see the process as it was going on; is that right?
6 A That's right.
7 Q Was there ever a time that you were in Who's Who
8 Worldwide that you ever saw a salesperson -- I am talking
9 now about salespeople like Annette Haley, Scott
10 Michaelson, Mr. Rubin, Ms. Weitz, did you ever see anyone
11 like that, a salesperson who is on the phone, go into the
12 administration office and take part with the data entry
13 girls in the selection process?
14 A Absolutely not.
15 Q They wouldn't be permitted to do that?
16 A Absolutely not.
17 Q They wouldn't know about the selection process being
18 done in the administrative office; is that right?
19 A Absolutely not.
20 Q They were kept ignorant of the selection process as
21 it was being performed?
22 A Yes.
23 Q In the selection office? 24 A That's correct. 25 Q Now, you were asked some questions on redirect by
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4228 Benjamin-recross/Geduldig
1 Mr. White regarding this conversation you had with
2 Mr. Gordon regarding the uses of the term "nomination".
3 Do you recall that?
4 A Yes.
5 Q And you were -- I think you characterized yourself as
6 being possibly the number two person at the company, after
7 you had been there a short period of time; is that right?
8 A I didn't get
into the pecking order.
9 Q If there were a pecking order you would certainly be
10 at the top; is that right?
11 A I would presume so.
12 Q You were a corporate officer?
13 A No, I was not.
14 Q You became vice president, I thought?
15 A That was a title.
16 Q How many other people were called vice president at
17 the company?
18 A I was the only one.
19 Q Okay.
20 Would it be fair to say that there were very few
21 people -- withdrawn.
22 During your stay at Who's Who Worldwide, there
23 were a hundred or more employees working there at 24 different times; is that right? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4229 Benjamin-recross/Geduldig
1 Q It could be as many on one occasion when business was
2 really good, there could have been as many as 140
3 employees at Who's
Who Worldwide?
4 A I don't know the exact count.
5 Q Would it be safe to say that it was -- there were in
6 excess of 100 people employed at Who's Who Worldwide on
7 occasion?
8 A The Lake Success office or the combination?
9 Q Well, let's do the combination?
10 A Possibly, yes.
11 Q Now, there would be times when the company would
12 adopt a policy to be used by the entire company, Who's Who
13 Worldwide; is that right?
14 A By the entire company --
15 Q For instance, there was a policy decision that people
16 from the sales office could not go over to the
17 administration office. That was a policy decision, right?
18 A Yes.
19 Q And would it be fair to say that if those decisions
20 were made, sometimes Mr. Gordon might do it all by
21 himself, saying this is the policy for this company from
22 this day on; is that right?
23 A Ye
s. 24 Q And would there be times when Mr. Gordon might sit 25 down and discuss a policy decision?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4230 Benjamin-recross/Geduldig
1 A With whom?
2 Q Say, with you, or with Liz Sautter.
3 Let me give you an example. You had a discussion
4 with Mr. Gordon about the use of the term "nomination" in
5 those letters; is that right?
6 A Yes.
7 Q And you were able to have that discussion with him
8 partly because of the position you had at the company; is
9 that right?
10 A Yes.
11 Q And Liz Sautter, if she wanted to discuss the use of
12 the term nomination in the letters, she possibly could
13 have sat down at some point with Mr. Gordon and had a
14 similar conversation; is that fair to say?
15 A Yes.
16 Q And is it fair to say that there were very few people
17 that could sit with Mr. Gordon and have a discussion on
18 the topics such as the use of the term nomination. For
19 instance, Annette Haley. Do you think Annette Haley could
20 have gone into Bruce Gordon's office and say, Bruce, I
21 would like to talk to you about the use of the term
22 "nomination" in the letters you are sending out?
23 A I don't know if she would have that privilege. 24 Q Do you think she would be allowed to do that? 25 A I don't know.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4231 Benjamin-recross/Geduldig
1 Q Well, Mr. Gordon, isn't it fair to say, could be an
2 intimidating boss?
3 A Yes.
4 Q He sometimes got loud?
5 A Yes.
6 Q He would curse at people?
7 A Yes.
8 Q And he would insult people?
9 A Yes.
10 Q And do you think a person in the position occupied by
11 A
nnette Haley, a salesperson talking on the phone, she may
12 have had the courage to do it, but do you think that a
13 person in that position had the ability to sit down and
14 have conversations with the president of the company about
15 the use of the term "nomination" in these letters?
16 A I don't know that it would be a particularly
17 comfortable position for them.
18 Q Mr. Gordon would make them uncomfortable?
19 A It would depend on the circumstances, yes.
20 Q Was this a company where there were meetings held by
21 Mr. Gordon with the various employees in these different
22 departments to discuss policies?
23 A I don't know the purpose of the meetings, but he did 24 have regular sales meetings. 25 Q At those meetings he would tell them to follow the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4232 Benjamin-recross/Geduldig
1 pitch and things of that sort?
2 A The few that I were in -- I did not attend sales
3 meetings regularly.
4 Q Did you ever see Mr. Gordon show the letter to the
5 salespeople containing the term "nomination"?
6 A No.
7 Q Do you think he would have shown that letter?
8 A I doubt it.
9 Q It is not something Mr. Gordon would have viewed as
10 information the salespeople should have had?
11 A That's right.
12 Q He limited their knowledge, the salespeople's
13 knowledge as just a pitch, getting on the phone, staying
14 on the phone and making a sale; is that right?
15 A And being aware of the product.
16 Q All right, and being aware of the product.
17 And he was the one who defined what the product
18 was in a sense; is that right?
19 A Yes.
20 Q Do you know when salespeople were hired, if they were
21 told what the nomination proce
ss was all about?
22 A I have no knowledge of that.
23 Q Now, shortly after you came -- let me backtrack a 24 second. 25 Mr. White asked you some questions about these
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4233 Benjamin-recross/Geduldig
1 lists and how they were broken down and how much they cost
2 and so forth. Do you recall those questions?
3 A Yes.
4 Q And I believe you became involved with obtaining
5 these various lists shortly after your arrival at Who's
6 Who; is that right?
7 A It was a few months later.
8 Q And after a time it was one of your primary functions
9 or jobs; is that right?
10 A That's correct.
11 Q Was that a responsibility that you had to the
12 exclusion of other people?
13 Withdrawn.
14 When you first got there I believe you testified
15 that Liz Sautter was respon
sible for obtaining these
16 lists; is that right?
17 A She and Mr. Gordon, yes.
18 Q And after a time it became a responsibility for you
19 and Mr. Gordon; is that right?
20 A Yes.
21 Q And Liz Sautter might have been asked for some help,
22 but it was not a function she generally became involved in
23 any longer; is that right? 24 A Very rarely, yes. 25 Q Did there ever come a point in time you were working
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4234 Benjamin-recross/Geduldig
1 with these lists where you sat down with the salespeople
2 and explained the purpose or the function of these lists?
3 A No.
4 Q Did you ever have any conversations in a corporate
5 sense with any of the salespeople about the lists that you
6 were getting, the groups that they were focussed towards,
7 or anything of that sort?
8 A No.
9 MR. GEDULDIG: I don't think I have any other
10 questions, your Honor.
11 THE COURT: Anything else?
12 MR. TRABULUS: If Mr. White doesn't have any more
13 questions, I have one or two suggestions by Mr. Geduldig.
14 MR. WHITE: He can go out of order.
15 THE COURT: You may proceed.
16
17 FURTHER RECROSS-EXAMINATION
18 BY MR. TRABULUS:
19 Q I want to clarify, Mr. Gordon can also be charming;
20 is that right?
21 A Yes.
22 Q Good humored?
23 A Yes. 24 Q And have a sense of good humor? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4235 Benjamin-recross/Trabulus
1 Q And with the employees and yourself?
2 A Yes.
3 MR. TRABULUS: Nothing else.
4 MR. NELSON: I have some more questions, and
5 rather than do it from my seat, I am not sometimes seen
6 from there.
7
8 FURTHER RECROSS-EXAMINATION
9 BY MR. NELSON:
10 Q Apparently yesterday I coined the phrase of four
11 levels of scrutiny, sort of like the phrase "Who's Who."
12 Mr. Geduldig asked you a question concerning the
13 sales staff not going into the administrative offices when
14 the lead cards would come back and were sorted by people
15 from the administrative staff.
16 Would I be correct in stating that similar to the
17 sales personnel not being present, the group leaders did
18 not participate in the initial screening of the lead cards
19 when they came back?
20 A At the mail room portion?
21 Q That's correct.
22 A That's correct.
23 Q Okay. 24 And would I be correct in stating, however, that 25 the group leaders were aware of the fact that indeed a
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
4236 Benjamin-recross/Nelson
1 sorting and screening was taking place behind those closed
2 doors before the lead cards were provided to them; is that
3 right?
4 A Yes.
5 Q Similarly, am I correct that the group leaders did
6 not participate in the review and screening that was
7 conducted by Ms. Sautter and Wendi Springer after the
8 order forms were approved, when on occasion they came to
9 you; is that right?
10 A I wouldn't know.
11 Q And similarly -- would I be correct, however, in
12 stating, that the group leaders were indeed aware of the
13 fact that after the orders were completed and sent to
14 administration for processing, there indeed was this
15 fourth level of screening, if you will?
16 A Yes.
17 MR. NELSON: Thank you. No further questions.
18 Thank you.
19 THE COURT: Anything else?
20 MR. WHITE: I do.
21
22
23 24 25
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4237 Benjamin-redirect/White
1 FURTHER REDIRECT EXAMINATION
2 BY MR. WHITE:
3 Q Mr. Trabulus asked you about the lead cards, as to
4 whether or not they were a valuable asset; do you recall
5 that?
6 A Yes.
7 Q And he asked if Mr. Gordon would refer to them, like
8 I paid $20 for this card, something like that?
9 A Yes.
10 Q And did he do that?
11 A Yes.
12 Q Now, a nomination ballot, what was the cost to the
13 company of getting a nomination ballot?
14 MR. LEE: I think this is improper, Judge.
15 THE COURT: You are objecting?
16 MR. LEE: Yes.
17 THE COURT: Please don't make any statements.
18 MR. LEE: I apologize, your Honor.
19 THE COURT: Sustained.
20 Q Was there any significant
cost to the company to a
21 nomination ballot as opposed to a lead card?
22 MR. TRABULUS: Objection.
23 THE COURT: Sustained. 24 Q The meeting at the Hicksville post office that 25 Mr. Schoer asked you about --
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4238 Benjamin-redirect/White
1 A Yes.
2 Q The one where we determined there are no notes.
3 The statement I asked you about before,
4 regardless of whether or not there were notes, do you
5 recall saying that at the meeting?
6 A I recall saying that I believed that there would be
7 less response if people knew their name came from a
8 mailing list.
9 Q And two of the four levels we talked about of the
10 screening of the cards, is done by what we have been
11 calling the data entry girls; is that right?
12 A For which I apologize for using that term.
13
Q No offense, but that is just what we have been using.
14 In the pecking order of the company, if there was
15 one, where did the data entry girls fit?
16 A I don't know. I perceived everyone as important to
17 the functioning of the company. So I don't know --
18 Q You said in response to Mr. Lee's questions that
19 maintaining a high standard was -- membership was
20 important to the company?
21 A I believed it was.
22 Q And it is your testimony that the screening was left
23 to data entry girls who made probably minimum wage at the 24 company; is that right? 25 MR. TRABULUS: Objection.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4239 Benjamin-redirect/White
1 THE COURT: On what ground?
2 MR. TRABULUS: Well, I think he inserted his own
3 comment.
4 THE COURT: Can I hear the question, please.
5 (Whereupon, the
court reporter reads the
6 requested material.)
7 THE COURT: Sustained.
8 Q Leaving out the minimum -- well, do you know how much
9 they made?
10 A No.
11 Q Well, is it your testimony that screening was
12 performed at least in part by these data entry people?
13 A Yes.
14 MR. WHITE: No further questions.
15 MR. DUNN: Can I have a moment, your Honor?
16 THE COURT: Yes.
17 (Whereupon, at this time there was a pause in the
18 proceedings.)
19 MR. DUNN: No further questions.
20 THE COURT: Anything else?
21 MR. SCHOER: No, your Honor.
22 THE COURT: You may step down, Ms. Benjamin.
23 (Whereupon, at this time the witness left the 24 witness stand.) 25 THE COURT: Please call your next witness.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4240
1 MS. SCOTT: The government calls Salvado
r Ochoa.
2 (Whereupon, at this time there was a pause in the
3 proceedings.)
4 MS. SCOTT: Your Honor, we are temporarily trying
5 to locate the witness.
6 THE COURT: Did you see him today?
7 MS. SCOTT: Yes.
8 THE COURT: Go ahead.
9 MS. SCOTT: Thank you.
10 (Whereupon, at this time there was a pause in the
11 proceedings.)
12 MS. SCOTT: He is on his way back, your Honor.
13 (Whereupon, at this time there was a pause in the
14 proceedings.)
15 MS. SCOTT: Might I suggest taking the ten-minute
16 break now?
17 THE COURT: All right, we will take a ten-minute
18 break now, and keep an open mind.
19
20 (Whereupon, a recess is taken.)
21
22 THE CLERK: Jury entering.
23 (Whereupon, the jury at this time entered the 24 courtroom.) 25 THE COURT: Have a seat, members of the jury.
HARRY RAPA
PORT, CSR, CP, CM OFFICIAL COURT REPORTER 4241
1 I apologize for keeping you waiting longer than
2 usual. But this was because we had three students from
3 Tuoro Law School. And one of the privileges of a judge is
4 able -- when I am able to explain the real facts of life
5 in a courtroom to the law students. And unlike my day
6 when we were restricted to a classroom, today they get out
7 into the field and learn what it is really like. And so I
8 had a very pleasurable 15 minutes speaking to them and
9 answering their questions. You will forgive me for
10 keeping you waiting.
11 You may proceed.
12 MS. SCOTT: The government calls Salvador Ochoa,
13 who needs to be sworn.
14
15 S A L V A D O R O C H O A ,
16 called as a witness, having been first
17 duly sworn, was examined and testified
18 as follows:
19
20 THE
COURT: Please be seated, and state your full
21 name and spell your name.
22 THE WITNESS: Salvador Ochoa, S A L V A D O R,
23 O C H O A. 24 THE COURT: You may proceed. 25 MS. SCOTT: Thank you, your Honor.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4242 Ochoa-direct/Scott
1
2 DIRECT EXAMINATION
3 BY MS. SCOTT:
4 Q Good afternoon, Mr. Ochoa.
5 A Good afternoon.
6 Q Can you tell us where you live?
7 A I live in El Paso, Texas.
8 Q What do you do for a living?
9 A I currently work for the El Paso Police Department as
10 a civilian supervisor.
11 Q How long have you been doing that?
12 A I have been there for approximately a year now.
13 Q What are your responsibilities?
14 A My responsibilities are to oversee the performance of
15 three coordinators, one supervisor, and 13 rank and file
16 employees.
17 Q Now, what did you do before you took that job?
18 A Prior to that I was working for the El Paso building
19 department.
20 Q What was your title in that position?
21 A Several titles. I started out as a building
22 inspector. I then promoted to a plans examiner. Then I
23 promoted to the assistant director of the department. 24 Q How long were you the assistant director of the 25 department?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4243 Ochoa-direct/Scott
1 A I was assistant director for approximately six years.
2 Q What was your responsibilities in that position?
3 A My responsibilities were to oversee the field
4 inspectors and their supervisors and act as a department
5 head when the department head was out-of-pocket.
6 Q How many people were you supervising in that
7 department?
8 A All total, the department consisted of about 100
9 people. And that included inspectors, clerks, clerk
10 typists and everything else needed within the office
11 environment.
12 Q How long were you with the department overall?
13 A I was with that department for 22 years.
14 Q Have you ever heard of a company called Who's Who
15 Worldwide?
16 A Yes.
17 Q Did you eventually purchase a membership from that
18 company?
19 A Yes.
20 Q How did you first come into contact with Who's Who
21 Worldwide?
22 A The contact -- they contacted me by mail, sent me
23 some literature and an application. 24 Q When was that, approximately? 25 A That was about June of 1993, I believe.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4244 Ochoa-direct/Scott
1 Q When they sent you this information, what did the
2 info
rmation tell you?
3 A The organization's literature mentioned the fact that
4 I had become nominated to become a member into that
5 organization by another member.
6 Q You mentioned there was an application included with
7 the letter?
8 A Yes.
9 Q Did you fill out the application?
10 A Yes, I did.
11 Q Did you return it to the company?
12 A Yes.
13 Q I am showing you Government's Exhibit 63-D, as in
14 Daniel, for Identification.
15 (Handed to the witness.)
16 Can you tell us what that is?
17 A This is the application sent to me.
18 MS. SCOTT: I offer Government's Exhibit 63-D.
19 THE COURT: Just one minute, please.
20 (Whereupon, at this time there was a pause in the
21 proceedings.)
22 THE COURT: Any objection?
23 MR. TRABULUS: No. 24 THE COURT: Government's Exhibit 63-D, for Dog, 25 in evidence.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4245 Ochoa-direct/Scott
1 (Government's Exhibit 63-D received in evidence.)
2 Q Mr. Ochoa, do you see your handwriting on that
3 application?
4 A Yes, I do.
5 Q And if you look at the lower right-hand corner, the
6 very bottom of the lower right-hand corner, the side that
7 has your handwriting on it, do you see a little printed
8 code on there?
9 A A printed code, global T P, G L O B A L, T P?
10 Q That's correct.
11 A Yes.
12 MS. SCOTT: Your Honor, may I publish
13 Government's Exhibit 63-D?
14 THE COURT: Yes.
15 (Whereupon, the exhibit/exhibits were published
16 to the jury.)
17 MS. SCOTT: I am sorry, I need to ask Mr. Ochoa
18 to do one more thing with that.
19 Q Mr. Ochoa, can you read aloud the postmark appearing
20 on that.
21 A Who's
Who Worldwide, office of public affairs, 1983
22 Marcus Avenue, suite 120C, Lake Success, New York
23 11042-1037. 24 Q That's the address, correct? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4246 Ochoa-direct/Scott
1 Q And can you read us the postmark that appears before
2 that, the date on the postmark?
3 A The postmark is El Paso, Texas, 27 May, 1993.
4 Q Thank you, Mr. Ochoa.
5 MS. SCOTT: I will hand this now to the jury.
6 THE COURT: Very well.
7 (Whereupon, the exhibit/exhibits were published
8 to the jury.)
9 Q Now, what happened after you returned the postcard?
10 A I can't remember whether it was a month or weeks
11 later, but I received a telephone call from someone
12 representing themselves as being employed by Who's Who
13 Worldwide.
14 Q And did you have a conversation with that
person?
15 A Yes, I did.
16 Q What were you told in that conversation?
17 A I was told that my application had been reviewed and
18 approved.
19 Then the individual went into all of the benefits
20 of Who's Who Worldwide.
21 We had a rather long conversation, and at one
22 point -- at several points during that conversation I
23 asked the caller who had nominated me for membership in 24 this organization. His response the first time is that he 25 couldn't divulge that information, but all members were
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4247 Ochoa-direct/Scott
1 listed in a registry that I would be receiving as part of
2 the benefit package for becoming a member of Who's Who
3 Worldwide.
4 During the conversation I remember pressing him
5 at least three times for the person who nominated me. I
6 felt it w
as important for me now. But I never got a
7 response.
8 I then started getting a little bit doubtful, and
9 I then asked the caller literally, if this is a scam? My
10 exact words are: Are you running a scam?
11 At that point in time the individual got rather
12 indignant and proceeded to tell me that he represented a
13 worldwide organization, that the members were worldwide,
14 and then proceeded to reiterate the benefits of the
15 membership.
16 Q What else did this caller tell you about how people
17 were selected?
18 A The information was that all members of this
19 organization --
20 MR. SCHOER: Objection.
21 MR. TRABULUS: Objection.
22 THE COURT: Yes.
23 When you say the inference was, Mr. Ochoa, you 24 will have to tell us what you remember was said, either 25 exact words or substantially. Not the inference, not your
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4248 Ochoa-direct/Scott
1 inference at this point. Tell us what was said.
2 You may proceed.
3 A The caller said that all members were nominated by
4 members of the same organization that was a very
5 prestigious organization, that the registry contained all
6 types of business people, authors, attorneys, CEOs,
7 presidents of companies, etcetera, etcetera.
8 Q Now, what specifically were you told you would get
9 for your money, if you purchased a membership?
10 A I was told that I would be getting discounts to
11 conferences, business conferences, seminars, a book of all
12 the members, which was referred to as the registry, and
13 numerous other benefits that I can't remember right now.
14 Those were the only ones that I do remember.
15 MS. SCOTT: Your Honor, may I have a moment?
16 THE COUR
T: Yes.
17 (Ms. Scott confers with Mr. White.)
18 Q Now, Mr. Ochoa, can you tell us what the most
19 important thing was that caused you to buy a membership?
20 A The fact that I had been nominated by another member.
21 Q Why was that important to you?
22 A It was important to me because at that time I had
23 been drawing up plans to begin my own business within ten 24 years of that date, because at that time I would be 25 retired and I was planning on starting a small
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4249 Ochoa-direct/Scott
1 construction company. And I felt that the person who
2 nominated me must have been in a similar background that I
3 was working in, which was construction, building codes,
4 architecture, engineering. And I felt it was good to join
5 an organization of that nature, because as the caller
6 mentione
d in our conversation, it would give me an
7 opportunity to network with these types of individuals.
8 Q When you say join an organization of that nature,
9 what do you mean?
10 A It was to me an organization of individuals with
11 similar backgrounds. I don't believe that anybody who
12 didn't know me would take the time to nominate me. So it
13 occurred to me that to be nominated one would have to know
14 who you are and what you do, in which case, I had been in
15 the inspection department for 23 years, dealing with
16 hundreds of contractors, dozens of architects, engineers,
17 some attorneys. And it had to be, in my mind, somebody
18 from this field. And to me it would have been a good idea
19 to join an organization of this nature because of the
20 plans I had in the future.
21 Q Now, if in fact your name had been obtained not by
22 nomination from another membe
r, but from a mailing list,
23 would that have affected your decision to purchase a 24 membership? 25 A Very much so.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4250 Ochoa-direct/Scott
1 Q How would it have changed your decision?
2 A It would have been just another piece of junk mail.
3 I probably would have just thrown it away.
4 Q And why is that?
5 A Because I receive a lot of junk mail.
6 If you are on a list, a mailing list for example,
7 a telephone is a mailing list, the names in the roster of
8 a prison system is a mailing list, the names in a roster
9 of a military battalion is a mailing list, America On Line
10 is a mailing list. You have a lot of members, but the
11 important thing is you really can't network closely with
12 the members, because it would be just like looking in the
13 telephone book. If you ne
ed an attorney, you can look up
14 under attorney. If you need a librarian, you look up
15 under librarian.
16 It wasn't worth it to me to become a member of an
17 organization that had bought my name from a mailing list.
18 Q How much did you pay for this membership?
19 A It was approximately a little over $200.
20 Q And how did you pay for it?
21 A I paid through my credit card for it.
22 Q How did you give your credit card to the company,
23 your credit card number? 24 A I think it was through the telephone or -- I don't 25 remember, to tell you the truth.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4251 Ochoa-direct/Scott
1 Q I am showing you Government's Exhibit 63-B, as in
2 Boy.
3 (Handed to the witness.)
4 Q Do you recognize that document?
5 A Yes.
6 Q What is that?
7 A It is a copy of t
he invoice that I received.
8 MS. SCOTT: I offer Government's Exhibit 63-B.
9 THE COURT: Any objection?
10 MR. TRABULUS: No.
11 MR. JENKS: No objection.
12 THE COURT: Government's Exhibit 63-B, for Baker,
13 in evidence.
14 (Government's Exhibit 63-B received in evidence.)
15 Q Is that the invoice that commemorates your purchase
16 for the invoice of Who's Who Worldwide?
17 A Yes, it is.
18 Q And can you tell us the date that appears on that
19 invoice?
20 A The invoice date is June 10th, 1993.
21 Q Can you tell us the price of your purchase as it
22 appears on the invoice?
23 A The price is $297. 24 Q I am going to read aloud -- withdrawn. 25 Did you receive a plaque?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4252 Ochoa-direct/Scott
1 A Yes, I received a plaque.
2 Q What happened whe
n you received the plaque?
3 A I received the plaque that is stated, for outstanding
4 achievements for the year 1993 to '94, I believe.
5 I didn't take it too seriously. I figured the
6 plaque cost me $297 at the time.
7 I tried to put it on the wall. But personally,
8 it was a reminder to me personally of a worthless plaque
9 that cost me $297 because there no way that this
10 organization could have known what my performance in my
11 particular field was.
12 I then took it off the wall and used it as a
13 coffee coaster.
14 Q Did you receive a directory?
15 A Never did.
16 Q Did you receive any other billing from the company?
17 A There was a second billing for the registry, yes.
18 Q Now, what happened when you received that second
19 billing?
20 A I disregarded it. I knew pretty much at that point
21 what I felt, that I had been taken f
or $297, and I wasn't
22 about to issue another, whatever the balance was.
23 Q Do you remember how much it was for the directory? 24 A I think it was equal to the first payment. 25 Q Now, did anybody tell you when you made your purchase
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4253 Ochoa-direct/Scott
1 that you would have to pay an additional amount for the
2 directory?
3 A No.
4 Q What in fact was said to you on that subject?
5 A It was part of the membership benefit package that
6 was presented to me.
7 Q I am sorry, what do you mean by it was part of the
8 membership benefit package?
9 A The fact that if I became a member, I would have
10 discount rates to seminars, conferences, and, of course,
11 the registry, that my name would be included in the
12 registry.
13 Q And did the salesperson say that to you?
14 A Yes.
15 Q So, at that time did anybody ever mention "split
16 billing" at the time you made the purchase?
17 A No.
18 Q Now, when did you first begin to feel taken?
19 MR. SCHOER: Objection.
20 THE COURT: Sustained.
21 Q Now, Mr. Ochoa, you mentioned by that time you had
22 begun to feel taken. Can you tell us when you first felt
23 taken? 24 MR. SCHOER: Objection. 25 THE COURT: That's the same question I sustained
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4254 Ochoa-direct/Scott
1 the objection to. A good try, but no go.
2 MS. SCOTT: I thought it was foundation, sorry,
3 your Honor.
4 Q Were you again contacted by the company?
5 A I was only contacted twice. One was the mailing, the
6 first mailing, and the second time was the salesman or the
7 club's representative through the telephon
e.
8 (Ms. Scott confers with Mr. White.)
9 Q Now, Mr. Ochoa, I am going to read some language that
10 appears at the bottom of the invoice of
11 Government's Exhibit 63-B.
12 THE COURT: Is this the language we heard about
13 ten times already at least about the split billing?
14 MS. SCOTT: Yes, it is, your Honor.
15 THE COURT: Show it to him. You don't have to
16 read it again. I think everybody knows what the language
17 is by now.
18 Q Can you take a look at that language, Mr. Ochoa.
19 Now, that language you read in the box on the
20 invoice --
21 A Yes.
22 Q Did you see it at the time you received the invoice?
23 A No, I didn't take the time. This is the second 24 billing. When I received it I probably read halfway 25 through it and disregarded it.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4255 Ochoa-di
rect/Scott
1 Q This bill is the bill you received after you first
2 purchased the membership; is that right?
3 A Yes.
4 Q And did you receive that invoice before or after you
5 agreed to purchase the membership?
6 A This invoice?
7 Q Yes.
8 A After.
9 Q Now, did anybody ever call you and say that they were
10 a member of Who's Who Worldwide -- a member of the
11 organization, as opposed to an employee?
12 A No.
13 Q So, did you ever receive any networking calls from
14 members of Who's Who Worldwide?
15 A Not to this day.
16 MS. SCOTT: I have no further questions.
17 Thank you, Mr. Ochoa.
18 THE COURT: Cross-examination.
19 MR. JENKS: Your Honor, may I ask Ms. Scott a
20 question first?
21 THE COURT: Surely.
22 (Mr. Jenks confers with Ms. Scott.)
23 24 25
HARRY RAP
APORT, CSR, CP, CM OFFICIAL COURT REPORTER 4256 Ochoa-direct/Scott
1 CROSS-EXAMINATION
2 BY MR. JENKS:
3 Q Mr. Ochoa --
4 THE COURT: Could you just hold it a moment,
5 please, Mr. Jenks.
6 (Whereupon, at this time there was a pause in the
7 proceedings.)
8 THE COURT: You may proceed.
9 MR. JENKS: Thank you.
10 Q Mr. Ochoa, you said that you felt you had been taken;
11 is that correct?
12 A Yes.
13 Q You flew all the way here from El Paso, Texas, at the
14 taxpayer's expense to tell us that; is that correct?
15 A Yes.
16 Q The United States Government flew you here?
17 A Yes.
18 Q And when did you get here, sir?
19 A Last night.
20 Q They paid for your ticket, I take it, right?
21 A Yes.
22 Q And prior to them paying for your ticket, you had
23 conversations with them about you coming he
re; is that 24 right? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4257 Ochoa-direct/Scott
1 Q They told you you wouldn't have to come here to
2 testify about; is that right?
3 A I would hope so.
4 Q When you said you felt taken, when you signed up did
5 you give the membership a chance? Did you utilize any of
6 the benefits in this case?
7 A No, I didn't.
8 Q When you signed up, Ms. Scott just showed you
9 Government's Exhibit 63-D in evidence; is that correct?
10 Take a look at this, this one here.
11 JUROR NO. 5: It is over here.
12 Q Ms. Scott showed you 63-D in evidence; is that right?
13 A Yes.
14 Q And this is the card with the literature that you say
15 you got in the mail?
16 A Yes.
17 Q Does it say that there is no charge or obligation on
18 your part for inclusion in
the registry?
19 A You want me to read it?
20 Q No.
21 Does it say that on the card.
22 THE COURT: Show him where it is.
23 A There is no charge or obligation on your part for 24 inclusion in the registry. 25 Q You saw that before you filled out the card; is that
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4258 Ochoa-direct/Scott
1 correct?
2 A Yes.
3 Q And you read this card before you filled it out; is
4 that correct?
5 A Yes.
6 Q And you put the stamp on the card; is that correct?
7 A I put the stamp.
8 Q That's your handwriting on the card, right?
9 A It is my handwriting.
10 Q When you spoke to the salesperson on the phone, did
11 you ask the salesperson for no charge about being included
12 in the registry?
13 A No.
14 Q Did you ever inquire as to whether or not you can
get
15 in the registry, or to get the benefits of being nominated
16 without paying a fee.
17 A Repeat the question?
18 Q Yes.
19 Did you ever ask the salesperson on the phone as
20 to whether or not you could be listed in the registry,
21 without a fee?
22 A I didn't have to. They said I would automatically be
23 registered in the registry. 24 Q Why would you pay for it if you could automatically 25 get in it for free?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4259 Ochoa-direct/Scott
1 A Exactly.
2 Q Why didn't you tell them to put me in there for
3 free. I don't want to have to pay for this?
4 A It didn't occur to me.
5 Q It didn't occur to you to try to save yourself $290
6 and get a free listing in the registry?
7 A No.
8 Q Did the government show you the listing of yourself
9 ins
ide the registry?
10 A No.
11 Q Did you ever see the listing in the registry?
12 A Never have.
13 Q Do you know whether or not there are numerous other
14 members from El Paso, Texas in the book?
15 A I have never seen the registry. I don't know what is
16 in it. I don't know what it looks like.
17 Q Well, I am going to show you this, Mr. Ochoa.
18 Take a look at that. Is that you in the registry
19 there?
20 (Handed to the witness.)
21 A Yes, it is.
22 Q Is that your biographical data?
23 A Yes. 24 Q Is it accurate biographical data? 25 A It is accurate, yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4260 Ochoa-direct/Scott
1 Q Would it say in here that it indicates that you were
2 involved in the Texas department building code
3 enforcement?
4 A Yes.
5 Q It says your favori
te book is Lee Iaccoca; is that
6 right?
7 A Yes.
8 Q And your favorite author is Lee Iaccoca?
9 A It was a book I was reading at the time when I was
10 contacted, yes.
11 Q Your favorite magazines are Business Week, Time,
12 etcetera?
13 A Yes.
14 Q And in order for the company to get this information,
15 you say that no one interviewed you about yourself?
16 Didn't you say that when Ms. Scott questioned you?
17 A No, I didn't say that.
18 Q You said though, that there was no qualifying
19 interview conducted of you? Did I hear you correctly to
20 say that?
21 A I don't believe I said that.
22 Q Well, you said they really didn't know about me.
23 They didn't know my achievements or background or 24 anything; is that correct? 25 A Yes. I said that in reference to the plaque that had
HARRY RAPAPORT, CSR, CP, CM OFF
ICIAL COURT REPORTER 4261 Ochoa-direct/Scott
1 been sent to me.
2 Q You commented on the plaque when you made that
3 statement, right?
4 A Correct.
5 Q But that is not a correct statement, because in order
6 to get the biographical information of you in the book,
7 they would have to do a qualifying interview of you; is
8 that correct?
9 A Depending on what qualifying is, yes.
10 Q The salesperson had to ask you in the conversation
11 things about your background and your career achievements,
12 in order to be accepted; is that correct?
13 A Yes.
14 Q And you have quite -- you had quite a lengthy
15 conversation with the salesperson, I believe you said?
16 A At least ten, 15 minutes.
17 Q On one occasion?
18 A The only one.
19 Q Okay.
20 You didn't call the company initially, and the
21 company didn't ca
ll you, correct?
22 A I didn't call the company. The company called me.
23 Q They sent you the literature first, and then you sent 24 back the card and then you received a call; is that 25 correct?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4262 Ochoa-direct/Scott
1 A Yes.
2 Q And no one picked up the phone and cold called you;
3 is that correct?
4 Withdrawn.
5 You weren't sitting home one day and just got a
6 call out of the clear blue from Who's Who Worldwide; is
7 that correct?
8 A No. They didn't call at home. They called my place
9 of business.
10 Q In other words, this was after you sent back the
11 card; am I correct?
12 A Yes.
13 Q 63-D?
14 A Yes.
15 Q All right.
16 And then you received a telephone call?
17 A Yes.
18 Q Is that correct?
19 A Yes.
20 Q And you sent back the card. The salesperson called
21 you. You were in your office?
22 A Yes.
23 Q And at the time were you working for the police 24 department in El Paso? 25 A No, I was working for the building department.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4263 Ochoa-direct/Scott
1 Q Okay.
2 When you got the call saying you were nominated
3 for inclusion in the registry, did that call appeal to
4 your ego, sir?
5 A My ego?
6 Q Yes.
7 A It appealed to my future plans.
8 Q All right.
9 But you told Ms. Scott and this jury that the
10 primary reason you signed up to be in the registry is
11 because you were told that you had been nominated?
12 A Correct.
13 Q But you recall filling out a questionnaire for the
14 government? Do you recall that?
15 A For the postmaster,
yes.
16 Q For the United States Postal Inspection Service?
17 A Yes.
18 Q And do you recall being asked a question: What were
19 the primary reasons for your decision to purchase a
20 directory or become a member?
21 Do you recall that question in the questionnaire?
22 A Yes.
23 Q Do you recall saying business contacts was the 24 primary reason? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4264 Ochoa-direct/Scott
1 Q So, it wasn't that you were nominated that was the
2 primary reason to become a member of Who's Who, but,
3 rather, to try to utilize the Who's Who membership for
4 business contacts; is that right?
5 A That was part of the benefits of becoming a member.
6 Q You wanted to join this organization for business
7 contacts, right?
8 A Yes.
9 Q Did you ever in any way, shape or
form try to utilize
10 the benefits of membership to network with anyone?
11 A Counselor, there was no way I could do that, because
12 the only information that I ever got from this company was
13 the letter and the phone call, there was nothing else.
14 There were no announcements of conferences, no
15 announcement of seminars. There was no registry I could
16 look up so I could utilize the information and network.
17 Q Did you ever in any way, shape or form -- withdrawn.
18 You use this words, and I am sitting here
19 listening to it, that you had been, quote, taken? That's
20 the words?
21 A Exactly the way I felt, yes.
22 Q You were taken, yes?
23 A I was taken, yes. 24 Q And did you ever give this company and its benefits a 25 chance to work for you?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4265 Ochoa-direct/Scott
1 A How so?
2 Q Well, did you call them up and say, I never received
3 any of the literature on the benefits? Did you do that?
4 A I am the member, they are the company.
5 Q Yes or no? Did you call them up?
6 A No.
7 Q You were taken but you never asked for a refund, did
8 you?
9 A No, I didn't have.
10 Q You were taken, but you never filed a complaint with
11 anyone in the State of Texas how you were taken?
12 A No, that's correct.
13 Q You were taken, but you never filed a complaint and
14 got off of wherever you were to file or register a
15 complaint until you were contacted by the United States
16 Government?
17 A That's correct. And even then I didn't think
18 anything would become of it.
19 Q You told them you were willing to fly to New York; is
20 that right?
21 A Well, not -- at the very last minute, counselor, I
22 called the paralegal and told them that I wasn't coming,
23 because I felt it was too much of a hassle, and I honestly 24 didn't think anything was going to come of this. 25 They did inform me I was under subpoena, and if I
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4266 Ochoa-direct/Scott
1 didn't, that the marshals would be sent.
2 Q Did they give you a subpoena to testify here?
3 A I was subpoenaed, yes.
4 Q Do you have the subpoena with you?
5 (Whereupon, at this time there was a pause in the
6 proceedings.)
7 Q Is that the subpoena?
8 A Yes.
9 Q When did you receive that subpoena?
10 A Yesterday.
11 Q When you got here?
12 A No.
13 Q You received it at your house?
14 A I received a copy of the subpoena.
15 Q A copy, okay?
16 A A fax copy, yes.
17 Q By fax machine?
18 A Yes.
19 Q You received this subpoena by fax machine?
20 A Yes.
21 Q And you received it yesterday?
22 A Yesterday.
23 Q And that's after you told the government that you 24 didn't want to appear here? 25 A No.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4267 Ochoa-direct/Scott
1 Q That just came across your fax machine in Texas
2 yesterday that subpoena?
3 A Yes.
4 Q Did you tell the government prior to the receipt of
5 that subpoena that you didn't want to testify in this
6 case?
7 A No. I didn't tell the government that I didn't want
8 to testify until I received the instructions that came
9 with the subpoena, because it placed the burden of cost on
10 me, plus the fact I am not familiar with New York, plus
11 the fact that I felt it was too much of a hassle. And it
12 was then that
I called -- maybe about two or three hours
13 before I took the flight to come here.
14 Q To try to get out of coming here?
15 A I wasn't trying to get out. I was just telling I
16 wasn't going to be here.
17 Q Right. You didn't really want to be here; is that
18 right?
19 A At the last minute, no.
20 Q You didn't expend any money on your part to come
21 here, and you are not going to expend any money; would
22 that be a fair statement?
23 A Fair enough. 24 Q The government is going to reimburse you for your 25 expenses; is that correct?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4268 Ochoa-direct/Scott
1 A Correct.
2 Q Now, you work currently, you said as a supervisor for
3 the El Paso Police Department; is that correct?
4 A Yes.
5 Q And you work with uniform police officers everyday in
6 El P
aso?
7 A That's correct.
8 Q You are part of the law enforcement agency; is that
9 correct?
10 A I am part of the administration of the law
11 enforcement administration, yes.
12 Q You work for the government in I take it the State of
13 Texas; is that correct?
14 A I work for the municipal government.
15 Q All right. In the State of Texas?
16 A In the State of Texas.
17 Q You are a supervisor there; is that correct?
18 A Yes.
19 Q You supervise civilian employees employed in the
20 capacity of the El Paso Police Department?
21 A Yes.
22 Q And you say when you received this literature, it
23 says that you were nominated by another member? 24 A Yes. 25 Q Do you have that nomination letter with you that you
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4269 Ochoa-direct/Scott
1 received?
2 A It was five years ago, counselor.
3 Q You remember the conversations you had with the
4 salesperson like it was just a half an hour ago.
5 A Uh-huh.
6 Q Is that correct?
7 A Yes.
8 Q You have had numerous conversations on the phone
9 since 1993, haven't you?
10 A Absolutely.
11 Q You never filed a complaint with anyone in this case,
12 did you?
13 A I didn't think it would do any good to file a
14 complaint.
15 Q In fact, you didn't do anything until June 28th,
16 1995, until you filled out the questionnaire the
17 government provided you; is that right?
18 A Yes.
19 Q No one contacted you from June of 1993 to June of
20 1995; is that correct?
21 A Yes.
22 Q Two years had elapsed before you even knew anything
23 about a questionnaire being in the case; is that correct? 24 A Or anything about the organiza
tion that I was 25 supposed to be a member of, yes, that's correct.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4270 Ochoa-direct/Scott
1 Q Yet, you testified here like these conversations took
2 place ten minutes ago, right?
3 A Yes.
4 Q Like you remember them like yesterday, right?
5 A Yes.
6 Q Two -- some three and a half years later; is that
7 correct?
8 A Correct.
9 Q So, where is the nomination letter you got stating
10 you were nominated by another member?
11 A That was five years ago, counselor.
12 Q Where is it? You don't know, do you?
13 A It was filed in my files for about two to three years
14 after that and I finally got rid of the file.
15 Q Did the government ever show you a letter saying you
16 were nominated by another member?
17 A No.
18 Q Well, let me show you 60-H, which is i
n evidence
19 already. It is not a letter made out to you.
20 Take a look at Government's Exhibit 60-H.
21 (Handed to the witness.)
22 Q Was this the language you received, or did yours
23 specifically say you were nominated by another member for 24 inclusion? 25 A This document is not to me, first of all.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4271 Ochoa-direct/Scott
1 Secondly --
2 Q You remember -- you have a clear recollection of what
3 you said three and a half years ago on the telephone to
4 some person in New York. You must have a clear
5 recollection as to what you got in the letter. Is this
6 the language you received in the letter, you were recently
7 nominated for possible inclusion in the Who's Who Registry
8 of global business leaders?
9 A I don't know. Counsel. This letter is not addressed
10 t
o me. The letter I have is no longer in existence
11 because I threw it away.
12 Q You would agree with me that there is a serious
13 difference between receiving a letter saying you were
14 recently nominated for possible inclusion, and you were
15 nominated by another member for inclusion, you agree it is
16 a big difference?
17 A Right.
18 Q Did the government show you any letter anywhere that
19 shows that you personally, Salvador Ochoa, Jr. were
20 nominate by some other existing member of Who's Who?
21 A Not that I can recall, counsel.
22 Q You can't find the letter either?
23 A I told you I destroyed a letter. 24 Q It is fair in that letter you were told that there is 25 no cost or obligation on your part to become a member,
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4272 Ochoa-direct/Scott
1 right, in the origina
l literature?
2 A There was a cost attached to the membership.
3 Q You say -- you said when you called the salesperson,
4 spoke to the salesperson they said they couldn't divulge
5 who nominated you?
6 A That's correct.
7 Q Could they have said at my level I wouldn't know who
8 nominated you?
9 A Not what was said.
10 Q Your testimony is that the caller said they couldn't
11 divulge it to you; is that correct?
12 A Yes.
13 Q If I told you there was a pitch sheet that said the
14 salespeople were supposed to say that at my level I
15 wouldn't have that information, do you recall ever hearing
16 that in the conversation concerning your nomination?
17 A No.
18 Q The sales -- your testimony is that that salesperson
19 never told you at their level they wouldn't know that
20 information?
21 A No.
22 Q Now, did you ask who this m
ember was who had
23 nominated you? 24 A Absolutely. 25 Q You say that was important to you at the time; is
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4273 Ochoa-direct/Scott
1 that correct?
2 A It was.
3 Q Why would you buy a membership without knowing who
4 the member was that nominated you into the directory if it
5 was such an important criteria?
6 A Because the presentation was so good and so
7 convincing that I bought into it.
8 Q You accepted it based on the conversation you had
9 with the salesperson on the phone; is that right?
10 A Yes.
11 Q It doesn't mean you were defrauded, does it?
12 MS. SCOTT: Objection.
13 THE COURT: Sustained.
14 Q Now, you said, you literally asked the caller if this
15 thing was a scam; is that right?
16 A Yes.
17 Q That's what you said?
18
A Yes.
19 Q And even after having your initial skepticism about
20 membership, you still decided voluntarily on your own free
21 will, to give your credit card number over the telephone
22 to the caller; am I correct?
23 A Yes, that's correct. 24 Q You decided to buy a membership in the registry, 25 right?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4274 Ochoa-direct/Scott
1 A Yes.
2 Q Now, you also testified that nobody told you about
3 this $97 in the registry that you would have to pay at a
4 later date; is that correct?
5 A Yes.
6 Q Take a look at the pink form in front of you, which
7 is 63-B, that Ms. Scott had shown you.
8 That's tin voice you received; is that correct?
9 A Yes.
10 Q It says your membership became effective June 9th,
11 1993; is that correct?
12 A That's correct.
13 Q You received this invoice shortly after your
14 membership became effective; is that right?
15 A Yes.
16 Q And you see where it says one 5-year membership,
17 split billing, up under the word "details"?
18 A Yes.
19 Q You saw that?
20 A Yes.
21 Q You saw where Ms. Scott brought it to your attention
22 in the box at the bottom which indicates that in the
23 future there is going to be a payment due in December of 24 $97? 25 A Correct.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4275 Ochoa-direct/Scott
1 Q Did you read this invoice when you got it in the
2 mail?
3 A Counsel, I didn't get beyond one 5-year membership
4 split billing. And to me that indicated that there was a
5 second cost that was going to have to be paid. And I
6 didn't read any further than that.
7 Q Well, did you call the
m up and ask them why there
8 would be a second cost that would have to be paid?
9 A No, because at that time I felt that it was useless.
10 Q Your answer is no?
11 A The answer is no.
12 Q Did you write them a letter?
13 A Didn't you write them a letter.
14 Q Didn't do anything, correct?
15 A Didn't do anything, correct.
16 Q Yet, you were taken in and thought it was a scam,
17 right?
18 A That's why I didn't do anything. I felt it was a
19 scam and I had been taken.
20 Q Have a nice day, sir.
21 A Thank you, you, too.
22
23 24 25
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4276 Ochoa-cross/Trabulus
1 CROSS-EXAMINATION
2 BY MR. TRABULUS:
3 Q Mr. Ochoa, you said when you got the invoice, 63-B,
4 by that time you decided already there was a scam; is that
5 righ
t?
6 A Yes.
7 Q Nothing happened between the time you gave your
8 credit card number and agreed to purchase a membership,
9 and the time you received this invoice; is that correct?
10 In other words, there was no other communications back or
11 forth between you and the company; is that correct?
12 A The only two communications, as I mentioned before,
13 that I ever had with the company, was first --
14 MR. SCHOER: Objection. Unresponsive.
15 MR. TRABULUS: Move to strike.
16 Q Let me ask you the question again, and make it a
17 little easier to you, between the day you had the
18 telephone conversation and gave your credit card number
19 and paid the purchase, and the day you got this invoice in
20 the mail, had you heard anything from the company?
21 A Somewhere in-between there I received a plaque,
22 counsel.
23 Q The plaque actually came before t
he invoice; is that 24 correct? 25 A Probably. I don't remember exactly the date when I
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4277 Ochoa-cross/Trabulus
1 received it.
2 Q Before you paid you got the plaque?
3 A I doubt that very seriously.
4 Q The lead card, I think you read it to us, was May
5 18th; is that correct? You have it there. It is hard for
6 me to read it on my copy. It is 63-D.
7 A 27 May, 1993.
8 Q 27 May, 1993. And the invoice is dated June 10th,
9 and it shows an effective membership date of June 9th; is
10 that correct?
11 A Yes --
12 Q When you got the invoice, did those dates seem
13 correct, the long period of time?
14 A As to what.
15 Q When you got the invoice, was it already August?
16 A I don't recall.
17 Q Did the dates seem wrong to you when you got it?
18
A I don't recall, counselor.
19 Q Are you still certain you got the plaque before you
20 got the invoice?
21 A No.
22 Q It is possible you got the plaque after you got the
23 invoice? 24 A It is possible. 25 Q So, when you got the invoice, whether or not you
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4278 Ochoa-cross/Trabulus
1 already received the plaque, and whether or not you
2 received anything in the meanwhile, you already decided on
3 your own it was a scam; is that correct?
4 A Yes.
5 Q And nothing happened between the date you agreed to
6 make the purchase, and the date that you received the
7 invoice, except that perhaps you received the plaque; is
8 that correct?
9 A Counselor, again, nothing has happened.
10 MR. TRABULUS: Move to strike, your Honor.
11 THE COURT: Well, I am going to strike t
he answer
12 as not being responsive.
13 Mr. Ochoa, you are going to be asked a lot of
14 questions that call for a yes or no answer. If you can't
15 say yes or no, say so, rather than make an explanation.
16 In this, if you can't answer the question in the manner
17 counsel wants you to by a yes or no, you say, I can't
18 answer that question yes or no.
19 THE WITNESS: Thank you, your Honor.
20 THE COURT: Then he has to decide what to do at
21 that point.
22 THE WITNESS: Thank you, sir.
23 Q Mr. Ochoa, isn't what happened is you had a change of 24 heart on your own? Yes or no, sir? 25 A No.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4279 Ochoa-cross/Trabulus
1 Q Isn't it so that what you had is what is called
2 buyer's remorse?
3 A No.
4 Q Now, you told us the reason you went through with it
5
was the sales presentation was effective?
6 A Yes.
7 Q It was a really good and effective presentation?
8 A Yes.
9 Q And is it correct that when you filled out the
10 questionnaire, the questionnaire sent by the Postal
11 Service, you said the person you spoke to wouldn't give
12 you his own name; is that correct?
13 A Yes.
14 Q Did you ask for his own name?
15 A Yes.
16 Q A person who wouldn't give you his own name, also
17 wouldn't tell you the name of the person who nominated
18 you; is that correct?
19 A Yes.
20 Q You found that convincing; is that correct?
21 A It wasn't part of the presentation.
22 Q You found this person persuasive in allaying your
23 fears at the time that there might be a scam; is that your 24 testimony? 25 A Not persuasive, but knowledgeable of the procedures
HARRY RAPAPORT, CSR, CP, CM
OFFICIAL COURT REPORTER 4280 Ochoa-cross/Trabulus
1 of Who's Who Worldwide.
2 Q When you filled out the questionnaire for the postal
3 inspectors, you told them that you asked the caller who it
4 was who nominated you, but you were given, quote, the run
5 around? Is that what you wrote down there?
6 A Yes.
7 Q And that is part of what you found to be reassuring
8 or persuasive that there was not any kind of a scam?
9 A No.
10 Q You testified here the most important thing for you
11 in terms of determining as to whether to make a purchase,
12 was that you had been nominated; is that correct?
13 A Yes.
14 Q And do you recall being asked in this questionnaire,
15 this question, and giving this answer, and this is number
16 26, on Exhibit 3500-SO1.
17 Question: What were the most important
18 statements or representations made by the
company which
19 affected your decision to purchase a directory or become a
20 member?
21 Your answer in your handwriting: Inclusion in
22 the directory for business contacts.
23 Do you recall that? 24 A Yes. 25 Q Mr. Ochoa, would it be of interest to you to know
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4281 Ochoa-cross/Trabulus
1 that there are 147 members of this organization who list
2 their address in El Paso?
3 A Not any more, counsel.
4 Q Do you know -- have you heard -- in the building and
5 construction industry in El Paso, do you know the name of
6 flamingo Pools and Spas?
7 A Yes.
8 Q Banes --
9 THE COURT: You are picking up speed again,
10 Mr. Trabulus.
11 MR. TRABULUS: Sorry, your Honor, I am reading:
12 Q Banes General Contract, B A N E S?
13 A Yes.
14 Q Do you
know the name of Rudy G. Construction?
15 A Yes.
16 Q And do you know Rudolph Gonzalez, the president?
17 A Do I know him? No.
18 Q Would you know Wickes, W I C K E S -Palace, Inc.?
19 A It doesn't sound familiar.
20 Q Do you know of a Linda P. Wickes in construction?
21 A No.
22 Q James E. Winser, W I N S E R, of CF Jordan, Inc.?
23 A Yes. 24 Q Do you know him? 25 A No, I don't know him. I know the company.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4282 Ochoa-cross/Trabulus
1 Q I have listed the names of five companies; is that
2 correct, or five different outfits and some names of
3 individuals as well?
4 A Yes.
5 Q And you were familiar with the names of four of those
6 five companies?
7 A Yes.
8 Q And would it be of interest to you to know that they
9 were either presidents or ot
her management personnel in
10 each of those five companies who were members of Who's Who
11 Worldwide?
12 A What was the question?
13 Q Would it have been of interest to know that?
14 A It might have been.
15 Q It might have helped you in networking?
16 A It might have, yes.
17 Q Those are all companies located within El Paso,
18 Texas; is that correct?
19 A Yes.
20 Q All within the construction industry?
21 A Yes.
22 Q Now, when you had the conversation with the
23 salesperson, did he tell you you were going to get a 24 plaque? 25 A I don't recall whether he told me or whether it was
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4283 Ochoa-cross/Trabulus
1 already written in part of the applications, I don't
2 recall.
3 Q Do you recall him asking you any -- you asking him
4 questions ab
out the plaque?
5 A The plaque was something that was really not
6 important to me.
7 Q Did you have any conception in your mind as to what
8 might be on the plaque?
9 A What usually is on the plaque. No.
10 Q You received a plaque?
11 A Yes, I received a plaque, yes.
12 Q As you opened the package, was there something you
13 expect to have had it say?
14 A No.
15 Q You didn't expect it to be blank, did you?
16 A Why would you get a blank?
17 Q And yet, you say when you got the plaque it said that
18 it was awarded to you; is that correct?
19 A Yes.
20 Q Did you expect it to say -- just have your name on it
21 and say nothing else?
22 A I didn't know what to expect, counselor. The plaque
23 was not important. 24 MR. TRABULUS: I have no further questions. 25 THE COURT: Anything else?
HARRY RAPAPORT, CSR, C
P, CM OFFICIAL COURT REPORTER 4284 Ochoa-cross/Neville
1
2 CROSS-EXAMINATION
3 BY MR. NEVILLE:
4 Q Hello, my name is Jim Neville, Mr. Ochoa.
5 Sir, you said that the salesperson who spoke to
6 you was very convincing?
7 A He was very knowledgeable about the company he was
8 talking about, yes.
9 Q And you are sure it was a male salesperson?
10 A The voice to me represented a voice of a male
11 individual. I may be wrong. I don't know.
12 Q You said that you had asked this individual his name,
13 assuming it was a male, you asked him his name?
14 A Yes.
15 Q And this person, assuming it was a male, refused to
16 give you his name?
17 A Yes.
18 Q Showing the witness 63-C for Identification.
19 Mr. Ochoa, I am going to ask you, would you look
20 at the top right-hand corner and read that name up there.
21 D
oes that refresh your recollection as to the male that
22 you spoke to?
23 A No, I never received this document until today, sir. 24 Q I am asking you if the name in the upper right-hand 25 corner jogs your memory as to who it was?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4285 Ochoa-cross/Neville
1 A No.
2 Q Have you ever heard that name before?
3 A Frank Penny, no.
4 Q Sir, you don't know whether the person who spoke to
5 you was Frank Penny?
6 A No.
7 Q But it could have been Frank Penny?
8 A It could have been Jim Neville.
9 Q That was good.
10 Mr. Ochoa, all kidding aside, you bought
11 something that you were disappointed with; is that right?
12 A The truth is that I was sold on this company, on this
13 membership. I felt that it would have been good for me in
14 the future.
15 Q What ha
ppened with your idea to open your business?
16 A It is still there.
17 Q How is it doing?
18 A I am at -- I still need to -- I still need about
19 three years to retire from the City of El Paso. I had
20 registered with assumed names, with the County of El Paso,
21 with the company name.
22 Q Any particular type of construction that you are
23 going to do or that you are doing? 24 A Remodelling and probably home construction. 25 Q And between 5:30 and 6:00 tonight, I am going to buy
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4286 Ochoa-cross/Neville
1 a contract to buy a house. Are you interested in helping
2 me do it over?
3 MR. NEVILLE: I have no further questions.
4 Take care.
5 THE WITNESS: Thank you, sir.
6
7 CROSS-EXAMINATION
8 BY MR. DUNN:
9 Q Good afternoon, Mr. Ochoa.
10 A Go
od afternoon.
11 Q My name is Thomas Dunn.
12 You have family in El Paso, obviously. Any
13 family in San Antonio?
14 A No.
15 Q Any family in Houston?
16 A My son just moved there, as a matter of fact, a
17 couple of months ago.
18 Q Any people you know in Houston or San Antonio besides
19 your son that just moved to Houston?
20 A Just in relatives, distant relatives.
21 Q Distant relatives in Houston?
22 A Yes.
23 Q Any distant relatives in San Antonio? 24 A No. 25 Q Now, you didn't really want to come here today; is
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4287 Ochoa-cross/Dunn
1 that correct?
2 A It was a last minute decision. No.
3 Q You didn't want to come, correct? Deep down, deep
4 down, you didn't want to be bothered to come up here; is
5 that correct?
6 A Yes.
7 Q But the government told you that if you didn't come
8 they would send some U.S. Marshals to bring you up here?
9 Is that basically what they told you?
10 A They mentioned the fact that I was subpoenaed and
11 that I was obligated to fulfill the subpoena. I did ask
12 the paralegal to go ahead and send the marshals, because
13 it would have been easier for me to have the marshals to
14 bring me directly here.
15 MR. DUNN: No further questions, your Honor.
16 THE COURT: Any redirect?
17 MS. SCOTT: Yes, your Honor.
18
19 REDIRECT-EXAMINATION
20 BY MS. SCOTT:
21 Q Mr. Ochoa, you just testified you didn't want to come
22 here to testify today; is that correct?
23 A That's correct. 24 Q And you stated to the paralegal it would be actually 25 easier for you if the marshals came and brought you here;
HARRY RAPAPORT, CSR, CP, CM OF
FICIAL COURT REPORTER 4288 Ochoa-redirect/Scott
1 is that correct?
2 A Correct. That was a joke between the paralegal and
3 myself.
4 Q What was it that -- why was it that you didn't want
5 to come here today?
6 A I didn't want to come here because after reading the
7 instructions again sent to me with the subpoena, I felt it
8 was too much of a hassle.
9 Q When you say it was too much of a hassle, what are
10 you referring to specifically?
11 A I had to fly from El Paso to Dallas, lay over in
12 Dallas, take a second flight from Dallas to LaGuardia.
13 Then I was expecting to take a cab ride from LaGuardia to
14 the hotel. Not being familiar with New York and the size
15 of the city, it was somewhat intimidating to me.
16 Q So the hassles involved with the trip were really the
17 only reasons why you didn't want to come to New York and
18 testify?
19 A That's right.
20 Q Now, Mr. Jenks asked you about whether you took
21 advantage of other benefits offered by the company; do you
22 remember that?
23 A Yes. 24 Q And do you remember you said you did not take 25 advantage of any benefits?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4289 Ochoa-redirect/Scott
1 A Yes.
2 Q Did you receive any information about benefits?
3 A Nothing.
4 Q Did you receive any communication from the company
5 other than the ones you described so far?
6 A Nothing.
7 Q Now, do you remember testifying that you didn't
8 believe that the company knew very much about you?
9 A Yes.
10 Q And do you remember testifying that you -- when you
11 were cross-examined on that statement, you testified that
12 you made it in reference to the plaque; is that right
?
13 A Yes.
14 Q Can you tell us what you meant?
15 A You receive a plaque from a company you barely know,
16 and the company barely knows you. And the plaque states
17 for outstanding achievements for the year, '93, '94, I
18 believe. There was in my mind no way that this company,
19 after having one conversation on the phone and one
20 application, can possibly know what performance, what job
21 performance I was doing for them to send a plaque praising
22 my achievements, because they don't know what they are.
23 It is impossible for them to know what they are. 24 Q Now, you were asked a lot of questions about feeling 25 taken; do you remember those questions?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4290 Ochoa-redirect/Scott
1 A Yes.
2 Q Do you remember being asked when your feeling of
3 taken first arose?
4 A Yes.
5 Q Do you remember being asked if anything happened in
6 connection with your communications with the company that
7 led to you feeling taken?
8 A No, I don't recall that.
9 Q Do you remember being asked by Mr. Trabulus as to
10 whether your feeling of being taken arose from something
11 that the company did or said to you after you agreed to
12 purchase the membership?
13 MR. TRABULUS: Objection. It wasn't the
14 question.
15 THE COURT: Yes. Sustained.
16 Q Well, Mr. Ochoa, can you tell us what gave rise to
17 your feeling of being taken?
18 A It was -- I began doubting the membership information
19 toward the end of my conversations with the telephone
20 caller. And those feelings were reinforced when I
21 received the plaque.
22 After receiving the plaque, it was pretty much at
23 least in my mind that that was about all I was
going to 24 get. 25 Q Now, when you have doubts during your conversation
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4291 Ochoa-redirect/Scott
1 with the salesperson, you asked the salesperson about
2 that, didn't you?
3 A Yes.
4 Q In fact, you asked the salesperson whether this was a
5 scam?
6 A Yes, I did.
7 Q How did he respond to you?
8 A I asked twice. The first time there was a pause.
9 The second time he came back with, Mr. Ochoa, we are Who's
10 Who Worldwide. We have members all over the world. We
11 have CEOs, we have presidents, we have all kinds of
12 business people. He went on to reiterate all of the
13 benefits of the -- of becoming a member.
14 Q Did those statements have an effect on you?
15 A That's what I meant when I said in the question that
16 was brought up about the run around. He
did nothing more
17 than give me the run around. He never got the name of the
18 individual I was supposed to have -- that was supposed to
19 have nominated me.
20 Q And you mentioned his comments were convincing; is
21 that correct?
22 A Yes.
23 He sounded sincere when he was speaking about 24 Who's Who Worldwide. 25 Q And you also mentioned he sounded knowledgeable; is
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4292 Ochoa-redirect/Scott
1 that right?
2 A Yes.
3 Q Do you remember being asked about the main reason why
4 you purchased this membership?
5 A Yes.
6 Q Do you remember Mr. Jenks pointing you to something
7 you said in your questionnaire, that the main reason was
8 that you wanted it for business contacts?
9 A Yes.
10 Q Now, do you have the questionnaire in front of you?
11 I
am sorry, you don't.
12 I am showing you Government's Exhibit 3500-SO-1.
13 (Handed to the witness.)
14 Q Can you take a look at question 15 on that
15 questionnaire.
16 A Yes.
17 Q That's the questionnaire you filled out; is that
18 correct?
19 A Yes, it is.
20 Q That's the questionnaire in which you stated that one
21 of the main reasons why you purchased this membership was
22 for the business contacts; is that correct?
23 A Yes. 24 Q Now, can you tell us what you said there under 25 question 15?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4293 Ochoa-redirect/Scott
1 Actually, first read the question to us.
2 A The question reads --
3 MR. NELSON: Objection.
4 MR. JENKS: Objection.
5 MR. DUNN: Objection.
6 THE COURT: Well, I am going to allow you to get
7 into that. But the
question is how to do it.
8 MS. SCOTT: May I ask him?
9 THE COURT: You can ask the question, yes.
10 MS. SCOTT: Can I have him read aloud what he
11 said?
12 THE COURT: I think you can. Overruled.
13 Q Mr. Ochoa, would you read aloud question 15.
14 A If you were told anything about how the company
15 obtained your name, how did this affect your decision to
16 purchase a directory/membership?
17 MR. LEE: Objection, bolstering.
18 THE COURT: Pardon me?
19 MR. LEE: Objection. Bolstering.
20 THE COURT: Overruled. It was brought up on
21 cross-examination. It is perfectly proper to complete the
22 answer that you or somebody else raised.
23 Q Mr. Ochoa, can you tell us the answer that you gave 24 to that question? 25 A Yes. My response was --
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4294 Ochoa-redirect/Scott
1 MR. DUNN: Objection to him reading the answer.
2 THE COURT: Overruled. All of you have an
3 objection and you are all overruled. Let's keep the
4 record nice and plain.
5 Go ahead.
6 A My response was: I felt that if I had been nominated
7 the organization sounded like it was legal, truthful, and
8 worth the try.
9 THE COURT: T R Y?
10 THE WITNESS: T R Y.
11 Q Thank you, Mr. Ochoa.
12 Now, do you remember being asked further
13 questions about your memory of what the first letter that
14 you received said?
15 A Yes.
16 Q And in particular do you remember Mr. Jenks asking
17 you how it is that you remember so clearly what that
18 letter said to you?
19 A Yes.
20 Q How is it that you remember that so clearly?
21 A Well, experience is a wonderful teacher, I think.
22 When I -- I don't know about others, but when
I experience
23 something first-hand, the memories of that experience 24 linger for many, many years afterwards. Some are 25 positive, some are negative.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4295 Ochoa-redirect/Scott
1 Q How is it that you remember that statement in the
2 letter so clearly?
3 A Because I felt it was a portion that I needed to
4 remember, so I will not make the same mistake again.
5 Q And by the same mistake, what are you referring to?
6 A There are many mail order companies using --
7 MR. LEE: Objection, your Honor.
8 THE COURT: Sustained.
9 Strike it out the answer. The jury is instructed
10 to disregard it.
11 Q Now, Mr. Jenks asked you if you complained to anybody
12 about your misgivings about this purchase; do you remember
13 him asking you that?
14 A Yes, yes.
15 Q Do you r
ecall saying that the reason you didn't
16 complain is because precisely you thought it was a scam?
17 A Yes.
18 Q Now, would it have served any purpose to complain to
19 a company if it was in fact a scam?
20 MR. SCHOER: Objection.
21 MR. JENKS: Objection.
22 MR. LEE: Objection.
23 MR. DUNN: Objection. 24 THE COURT: Sustained. 25 Q Now, do you remember Mr. Trabulus going through the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4296 Ochoa-redirect/Scott
1 book and mentioning the names of certain people in El Paso
2 who are Who's Who members, who are listed in that book?
3 A Yes.
4 Q And do you remember being asked if you heard any of
5 those people, or any of those companies?
6 A Yes.
7 Q Did you ever see the listing in the book before
8 today?
9 A Not until today.
10 Q Did you ever have
an opportunity to know that those
11 people were in the book before today?
12 A No.
13 Q Did you ever in fact see the book before today?
14 A Never had.
15 Q Now, when you made your purchase initially, were you
16 interested in networking with people from a mailing list?
17 A No.
18 Q And --
19 MR. LEE: Objection as to form, your Honor.
20 THE COURT: Sustained. Strike out the answer.
21 The jury is instructed to disregard it.
22 MS. SCOTT: Thank you, Mr. Ochoa.
23 Thank you, your Honor. 24 No further questions. 25
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4297 Ochoa-cross/Lee
1 RECROSS-EXAMINATION
2 BY MR. LEE:
3 Q Good afternoon, Mr. Ochoa, my name is Winston Lee.
4 Just now Ms. Scott asked you a question, and your
5 response was that the person on the phone informed you in
6 response that we have international members, we have CEOs,
7 we have presidents. Do you recall you just said that?
8 A Yes.
9 Q Now, just so I am clear, as you sit here today, are
10 you of the belief that when that person made that
11 statement to you, he was misrepresenting the registry?
12 A Whether he was misrepresenting --
13 Q Do you understand my question? Yes or no?
14 A I can't understand that question, Mr. Lee.
15 Q Let me try to make it clear, sir, let me try to make
16 it clear.
17 Right now as you sit here you recall that that
18 person said to you, we have a membership that is
19 international; you recall that, right?
20 A No. He said worldwide.
21 Q First of all he said, sir, we are Who's Who
22 Worldwide; that's what he said, right?
23 A Yes. 24 Q And then he said we have a worldwide membership, yes? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4298 Ochoa-cross/Lee
1 Q Is that what he said?
2 As you sit here now, is it your belief that that
3 was a lie that this person said to you over the phone,
4 that they are in fact a worldwide -- they have a worldwide
5 membership?
6 A Mr. Lee, the only information that I have of this
7 organization is the information that I read in the
8 application, and the information that was given to me by
9 the caller. That's it.
10 Q So, in preparation for your testimony here, and
11 before you got on the witness stand to testify for the
12 government, they never told you about this company, right?
13 A In terms of what?
14 Q Did they give you a chance to review the registry and
15 just learn about this company that you never had a chance
16 to use? Did they do that? Did they let you look at the
17 registry?
18 A No.
19 Q They did not say, look at this, sir, this is the
20 company that you are testifying against? Did they give
21 you a chance to learn about the company?
22 A No.
23 Q Did they in fact tell you that they -- it did have a 24 worldwide membership? 25 A No.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4299 Ochoa-cross/Lee
1 Q Did they tell you that?
2 A No.
3 Q Did they tell you that in fact a majority of the
4 people in this registry that you never had an opportunity
5 to look at and use were managers, presidents, CEOs? Did
6 they tell you that?
7 A No.
8 Q So, as you sit here you are of the impression, are
9 you not, that there is not a worldwide membership, right?
10 That's your impression of this scam organization, they
11 have no worldwide membership, right? That's yo
ur
12 impression?
13 A Counselor, I forgot about this company a long time
14 ago.
15 Q I am saying as you sit here now, your perception of
16 this company, that it is a slipshod, fly by night
17 operation with no worldwide membership? That's your
18 perception of them, right? Is that what you think this
19 is?
20 A That is for the jury to decide.
21 Q No, what do you think, sir, your perception.
22 A I have no judgment on that. I can tell you that I
23 forgot about this company a long time ago. 24 Q But it is a fact that the government never dissuaded 25 you of this -- of your perception that this is a scam?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4300 Ochoa-cross/Lee
1 They never bothered to let you learn about this
2 organization and what was involved there, did they?
3 A I don't think it was their responsi
bility to do
4 that. I think it was the organization's responsibility to
5 do that.
6 MR. LEE: I have no further questions.
7 THE COURT: Anything else?
8 MR. TRABULUS: Could I see Exhibit 63-B, the
9 original? Is it up there?
10 MS. SCOTT: Yes.
11 MR. TRABULUS: Excuse me.
12 (Whereupon, at this time there was a pause in the
13 proceedings.)
14
15 RECROSS-EXAMINATION
16 BY MR. TRABULUS:
17 Q Very briefly, Mr. Ochoa.
18 If indeed there were a substantial number of CEOs
19 in the organization, would that have confirmed what you
20 were told by the man who spoke to you?
21 A If in fact there were, yes, it would confirm it.
22 Q If in fact there was a substantial number of
23 presidents in the company or owners of businesses, would 24 that conform to what he told you? 25 A Yes.
HARRY RAPAPORT, CSR, CP
, CM OFFICIAL COURT REPORTER 4301 Ochoa-recross/Trabulus
1 Q If indeed there were members in Russia or China,
2 would that also conform to what he told you?
3 A Yes.
4 MR. TRABULUS: No further questions.
5 THE COURT: Anything else?
6
7 FURTHER REDIRECT EXAMINATION
8 BY MS. SCOTT:
9 Q Mr. Ochoa, if the members of Who's Who Worldwide came
10 from mailing lists would that also confirm what the
11 salespeople told you?
12 MR. TRABULUS: Objection.
13 THE COURT: Sustained.
14 MS. SCOTT: No further questions.
15 THE COURT: You may step down.
16 (Whereupon, at this time the witness left the
17 witness stand.)
18 MR. SCHOER: May we have a limiting instruction?
19 THE COURT: In what regard?
20 MR. SCHOER: His testimony is only offered
21 against the corporation?
22 THE COURT: Is that correct, Ms. Scott?
23 MS. SCOTT: Yes. 24 THE COURT: Against Who's Who Worldwide 25 Registry?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4302
1 MS. SCOTT: Yes.
2 THE COURT: You may proceed.
3 MR. WHITE: Your Honor, we are going to be
4 playing some tapes next.
5 (Whereupon, at this time there was a pause in the
6 proceedings.)
7 THE COURT: Please proceed.
8 MR. WHITE: The Exhibit is 1330, the transcript
9 is 1330A. It is a telephone call to worldwide. The
10 salesperson is the defendant Steve Rubin. It is not
11 December 13th, 1994.
12 (Tape is played.)
13 MR. GEDULDIG: I am not hearing anything.
14 MR. WHITE: I hear it.
15 MR. GEDULDIG: I don't.
16 THE COURT: You are not hearing it,
17 Mr. Geduldig?
18 MR. GEDULDIG: No.
19 MR. DUNN: It is this table here, your Honor.
20 THE COU
RT: That table is not hearing it. Maybe
21 something is not connected. Do you wish to check it?
22 While you are doing that, Mr. White, did you name
23 a date that this occurred? 24 MR. WHITE: Yes, your Honor. 25 THE COURT: Where do you get the date from?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4303
1 MR. WHITE: It is reflected on the exhibit, the
2 actual date.
3 THE COURT: I see, on the bottom is this?
4 JUROR NO. 7: That's the date the transcript was
5 done.
6 MR. WHITE: The date is reflected on the date.
7 THE COURT: What date did you say it was?
8 MR. WHITE: December 13th, 1994.
9 THE COURT: And with whom is this conversation?
10 MR. WHITE: Steve Rubin, a/k/a Steve Walden.
11 MR. NEVILLE: We found it now. It was
12 disconnected over here.
13 THE COURT: Start it all over again.
14 MR. W
HITE: Yes, your Honor.
15 (Tape is played.)
16 MR. WHITE: Your Honor, the next one is
17 Exhibit 1391. This is a recording made by an employee at
18 Worldwide on December 23rd, 1994. We are going to be
19 playing the excerpt that is on page 3 of the transcript,
20 which is 1391 A.
21 JUROR NO. 6: We don't have 1391 A.
22 JUROR NO. 12: Yes, you do.
23 JUROR NO: 6: He said page 3: 24 THE COURT: This is Elliott Zale, Z A L E? 25 MR. WHITE: Your Honor, yes, on page 3, the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4304
1 excerpt we intend to play is between Elliott Zale and
2 Frank Martin.
3 THE COURT: All right.
4 (Tape is played.)
5 MR. NEVILLE: Who is on there?
6 MR. WHITE: It is reflected on the transcript.
7 MR. NEVILLE: Well, say it.
8 MR. WHITE: I did. Elliott Zale and Frank
9 Mart
in.
10 (Whereupon, at this time there was a pause in the
11 proceedings.)
12 MR. WHITE: The next one, your Honor, is 1395.
13 And the transcript is 1395-A; recorded by an employee at
14 Worldwide, January 6th, 1995.
15 (Tape is played.)
16 MR. WHITE: The next one is 1398. The transcript
17 is 1398-A. It is recorded by an employee at Who's Who
18 Worldwide on January 27th, 1995.
19 (Tape is played.)
20 MR. WHITE: Your Honor, the next one is
21 Exhibit 1400. The Exhibit is 1400-A, and the excerpt we
22 are going to play is the second one that starts with
23 Mr. Gordon, my problem is, on page 1 of that. 24 This is recorded on February 7th, 1995, by a 25 Worldwide employee.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4305
1 MR. TRABULUS: When you say a Worldwide employee,
2 you mean acting for the governmen
t; is that right?
3 THE COURT: I didn't hear what Mr. Trabulus
4 said.
5 MR. TRABULUS: The stipulation indicated that it
6 was at the government's instance that this was recorded by
7 a government employee.
8 MR. WHITE: Correct. The terms of the
9 stipulation I read the other day.
10 MR. NELSON: With respect to this particular
11 recording, I would ask for a limited instruction that it
12 is offered with respect to the employee of Sterling Who's
13 Who.
14 THE COURT: Is that correct?
15 MR. WHITE: No, your Honor. It was made by an
16 employee of Who's Who Worldwide.
17 MR. NELSON: Mike Powers was of Sterling Who's
18 Who.
19 MR. WHITE: Not on this day.
20 MR. NEVILLE: How about the salespeople who were
21 present?
22 MR. WHITE: Do you know who was there?
23 MR. NEVILLE: You are prosecuting. 24 THE COURT: This is of
fered as against Who's Who 25 Worldwide Registry, Inc.?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4306
1 MR. WHITE: Correct.
2 THE COURT: Correct?
3 MR. WHITE: Correct.
4 (Tape is played.)
5 MR. WHITE: Your Honor, the next recording, we
6 have to unhook this type of recorder and hook up another
7 one, if you wish to end for the day?
8 THE COURT: There will not be time, all right.
9 Members of the jury, we are going to recess until
10 Tuesday, which is the 17th of February, the 16th being a
11 holiday, President's Day.
12 Do not discuss the day among yourselves or anyone
13 else. Keep an open mind. Come to no conclusions. Do not
14 do any research. Have a nice weekend and a holiday on
15 Monday. We will see you at 9:30 on the 17th, Tuesday the
16 17th of February.
17 Have a nice weekend.
18 (W
hereupon, at this time the jury leaves the
19 courtroom.)
20 THE COURT: What about Tuesday, Mr. White?
21 MR. WHITE: Tuesday I expect Mr. Watstein, who
22 was here the last week and didn't get on, and Wilma
23 P I N C H A M, Pincham, and perhaps some additional tapes. 24 THE COURT: Will that be enough for the entire 25 day?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4307
1 MR. WHITE: I think they will have quite a lot
2 for Mr. Watstein, yes.
3 THE COURT: Is Mr. Watstein the person who is the
4 voice on this recording?
5 MR. WHITE: Yes, the call we heard today was
6 Mr. Watstein, yes.
7 THE COURT: All right.
8 MR. WHITE: Your Honor, in connection with the
9 prior consistent statement, you told me the primary case I
10 should look at was United States v. Guido. I must confess
11 I looked at West Law thi
s morning and I couldn't find it.
12 Does your Honor have a citation? I am not asking
13 you to do my research, but I couldn't find it.
14 THE COURT: If you wait a moment, I will give it
15 to you.
16 MR. WHITE: Thank you very much.
17 THE COURT: I think I may have given you the
18 wrong name. United States against Quinto, did I say
19 that? Q U I N T O? 582 F.2d 224.
20 MR. WHITE: Quinto I found.
21 THE COURT: It is the Second Circuit, 1978. I am
22 sorry I mixed up the name.
23 (Case on trial adjourned until 9:30 o'clock a.m., 24 Tuesday, February 17th, 1998.) 25
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 4308
1 I-N-D-E-X
2 W-I-T-N-E-S-S-E-S 3 PAGE LINE 4 D E B R A B E N J A M I N................... 4187 2 5 REDIRECT EXAMINATION (cont'd).................... 4187 7 RECROSS-EXAMINATION.......
....................... 4207 9 6 RECROSS-EXAMINATION.............................. 4214 5 RECROSS-EXAMINATION.............................. 4221 1 7 RECROSS-EXAMINATION.............................. 4225 11 FURTHER RECROSS-EXAMINATION...................... 4234 17 8 FURTHER RECROSS-EXAMINATION...................... 4235 8 FURTHER REDIRECT EXAMINATION..................... 4237 1 9 S A L V A D O R O C H O A................... 4241 15 10 DIRECT EXAMINATION............................... 4242 2 CROSS-EXAMINATION................................ 4256 1 11 CROSS-EXAMINATION................................ 4276 1 CROSS-EXAMINATION................................ 4284 2 12 CROSS-EXAMINATION................................ 4286 7 REDIRECT-EXAMINATION............................. 4287 19 13 RECROSS-EXAMINATION.............................. 4297 1 RECROSS-EXAMINATION.............................. 4300 15 14 FURTHER REDIRECT EXAMINATION...................
.. 4301 6
15 E-X-H-I-B-I-T-S 16
17 Government's Exhibit 63-D received in evidence... 4245 1 Government's Exhibit 63-B received in evidence... 4251 14 18
19
20
21
22
23 24 25
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
