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. :March 10, 1998 11 - - - - - - - - - - - - - - X 9:30 o'clock a.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: NORMAN
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)
7311
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 OWEN M. WICKER 21 United States District Court Two Uniondale Avenue 22 Uniondale, New York 11553 (516) 485-6558 23 24 Proceedings recorded by mechanical stenography, transcript produced by Computer-Assisted Transcription 25
7312
1 M O R N I N G S E S S I O N
2
3 (Whereupon, the following takes place in the
4 absence of the jury.)
5 THE COURT: Mr. White, you wanted to see me?
6 MR. WHITE: Yes, your Honor, at the risk of
7 incurring your wrath again, I would like to revisit the
8 allocution we discussed last night?
9 THE COURT: Go ahead.
10 MR. WHITE: Your Honor gave us your thoughts
11 yesterday and that was clear. And I wanted to address
12 what you
said. And I think the two main points you made,
13 which perhaps I didn't do as clearly as I did yesterday.
14 One of what I understood your Honor's concerns
15 about the statement was that basically Maxes -- there was
16 a possibility that Mr. Maxes thought he was going to die.
17 Therefore, it wouldn't really be against his interest to
18 plead guilty.
19 It seems to me though from the case there was,
20 whether or not that is true is not relevant. Because
21 unless I am wrong in Scopo, the case we discussed a couple
22 of times, says precisely that you are not supposed to do
23 that. It says, quote, we stress -- not just we state, but 24 we stress, that a defendant's unilateral belief would not 25 suffice to neutralize the exposure ordinarily inherent in
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7313
1 a self-incriminating plea or a
llocution.
2 It doesn't say it wouldn't ordinarily do that, or
3 typically. It says flatly, we stress it does not.
4 It seems to me, your Honor, that that is an
5 improper analysis whether or not that is what he thought.
6 It did expose him to possible punishment.
7 And I would also suggest that the evidence about
8 what he was thinking at the time is somewhat equivocal.
9 Your Honor cited the fact that he died six months
10 later. But, yes, he died of something else. He didn't
11 die of the illness at the time he had the plea.
12 THE COURT: I don't know what he died of.
13 MR. WHITE: Okay.
14 THE COURT: Neither do you.
15 MR. WHITE: That's true. But it seems to me that
16 Scopo says that it is not an inquiry we are supposed to
17 make. It says his private belief would not suffice to
18 neutralize the exposure inherent in a plea of guilty.
19 Now, wi
th respect to the second point that your
20 Honor made about whether or not this allocution makes out
21 the existence of a conspiracy, I went back and looked at
22 the standard jury instruction from Sand regarding an
23 unlawful agreement, what your Honor would -- something 24 along the lines of what your Honor would tell the jury 25 what to determine -- how to determine if there is a
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7314
1 conspiracy.
2 The standard instruction says: The proof must
3 convince you that at least two persons joined together in
4 a common criminal scheme. Then it contains the language
5 that the agreement need not be expressed.
6 It says that it is sufficient for the government
7 to show that there was a mutual understanding, either
8 spoken or unspoken, between the defendants to cooperate
9 with each ot
her to accomplish the unlawful acts by means
10 of a joint plan or common design.
11 Mr. Maxes's allocution at a minimum says, I
12 worked as a member of the sales staff and as such I
13 followed the pitch sheets given me by Mr. Gordon and they
14 contained misrepresentations. And it makes reference on
15 the page 33, the misrepresentations that I and company
16 salespeople made.
17 It seems to me, your Honor, it is clearly
18 suggesting there is at least, between Mr. Maxes and
19 Mr. Gordon at the minimum, a mutual understanding to
20 cooperate with each other to accomplish the unlawful acts.
21 So, while it could be clearer, it doesn't seem to
22 me that it fails to make out the existence of the
23 conspiracy. 24 I want to add that I believe I didn't make that 25 argument as clearly as I should have yesterday.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL
COURT REPORTER 7315
1 THE COURT: I heard your arguments. They are
2 very well put. The Scopo case does say what you say it
3 says.
4 I don't know if a defendant's unilateral belief
5 would not suffice to neutralize the exposure.
6 The Court went further on to say if Agro,
7 A G R O, privately believed that because of his illness
8 the Court would not require him to suffer incarceration,
9 there would be little reason for him to suppose that the
10 Court would also therefore excuse him from paying a fine.
11 The combination of the factors is what persuades
12 me not to allow this in. Not only is there -- I don't
13 think it is his personal belief alone. I think the man
14 was seriously ill, was obviously seriously ill in front of
15 me. In fact, I believe I put on the record, if you would
16 like to sit down during the allocution, that would be all
17 right.
18 He was just operated on for cancer. He was
19 taking chemotherapy. In addition to the fact that he --
20 whether he privately believed -- I don't think it is only
21 that he privately believed. I think it is the fact.
22 Secondly, he had a cooperation agreement with the
23 government, I believe, did he not? 24 MR. WHITE: He did. 25 THE COURT: And the Scopo case further says,
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7316
1 quote, if, however, a pleading defendant had an agreement
2 with the government, or with the Court, that he would not
3 be punished for the crimes to which he allocuted, than
4 that allocution would not subject him to criminal
5 liability and would not constitute a statement against his
6 penal interest within the meaning of Rule 804(b)(3).
7 There was no agreement he would not go to ja
il.
8 There was just a cooperation agreement.
9 So, we have the following factors here: One, a
10 man seriously ill, visibly seriously ill before me, of
11 cancer; having been operated on and taking chemotherapy;
12 two, a cooperation agreement with the government; three,
13 having been fired by Bruce Gordon; four, an allocution
14 which did not expressly ask whether there was a
15 conspiracy. It is very unusual. Five, the only basis for
16 this to go in would be to show that there was a
17 conspiracy. It could not go in to show guilt on the part
18 of any defendant. The cases are clear about that.
19 That combination of factors in my view, if you
20 add 403 to the till, and that he allegedly perjured
21 himself in a Reed case, we don't want to have a mini-trial
22 on Mr. Maxes.
23 On the combination of the factors and in the 24 exercise of my discretion, I d
ecline to allow that plea in 25 evidence.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7317
1 Anything else?
2 MR. WHITE: Your Honor was going to consider
3 putting in the paragraph in that information.
4 THE COURT: Can I see the information?
5 MR. NELSON: If I may approach the bench for a
6 moment, your Honor, I have the information?
7 THE COURT: Is it in the same thing?
8 MR. NELSON: Yes.
9 THE COURT: I can't even open that book, it is so
10 full.
11 MR. NELSON: 3500-18-H, and I referred to
12 paragraph five, which is on page 2 of the information.
13 Your Honor, I had the opportunity this morning to
14 re-read United States against Muyet, M U Y E T,
15 958 F. Supp. 136. And as I noted yesterday on the record,
16 the case before Judge Keenan, United States v. Lopez, the
17 procedural history of that cas
e was such that a motion in
18 limine was made to limit the scope of what could be
19 brought out in co-defendant's allocutions. At that time
20 Judge Keenan referred to Muyet. I re-read Muyet this
21 morning. And interestingly, and I can add to the Court
22 the significant pages found on pages 138 through 140.
23 What Judge Leisure did in the case was to redact 24 the allocution and limit it to those portions which were 25 specific statements against that individual's penal
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7318
1 interest and that's why they would be admissible.
2 I submit it premised upon the allocution that
3 took place with respect to Mr. Maxes, that in fact such a
4 redaction would not be possible. And there is nothing
5 that goes to the proof of the conspiracy and the
6 allocutions, therefore no portion should be admissib
le at
7 all.
8 MR. TRABULUS: Your Honor, I would like to add to
9 that that yesterday the United States Supreme Court
10 decided a case called Gray against Maryland. I know it
11 only from having read the syllabus by the reporter.
12 THE COURT: That's a Bruton case?
13 MR. TRABULUS: Yes. It was a five to four
14 decision.
15 THE COURT: I am familiar with it.
16 MR. TRABULUS: They held that the redaction there
17 was improper. They ruled for the defendant. I have not
18 read the opinion. I just read the syllabus.
19 THE COURT: What I got from the summary that I
20 received is that up to that point, where there has been a
21 Bruton problem, namely a statement by a co-defendant who
22 doesn't testify inculpating another defendant, the Court
23 could redact or revise the statement to change the 24 pronouns, change the nouns. Instead of saying Joe Doe
25 committed the crime, another person committed the crime.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7319
1 Of course, there are only two people there.
2 MR. TRABULUS: Right.
3 THE COURT: So that has been done with varying
4 effect, rather than severing the trial. Of course, the
5 better practice would be to sever the trial. But the
6 United States Supreme Court yesterday five to four said
7 substituting the pronoun or some other fictitious name or
8 noun for the co-defendant -- instead of saying Joe did it,
9 a person did it, or another human being did it, you can't
10 do that. You have to redact everything and not mention
11 anything about the other person even being there.
12 So, you will leave it, I did it, not the
13 co-defendant.
14 MR. TRABULUS: That's the whole point here.
15 Because in this paragraph that is bei
ng discussed, it says
16 together with others.
17 When you look at the nature of the evidence in
18 this case, the others would clearly be understood to refer
19 to the other defendants here, or certainly Mr. Gordon.
20 On the basis of what the Supreme Court decided
21 yesterday, that would not be proper. Although it is not a
22 classic Bruton situation with respect to the co-defendant,
23 analytically it is the same. 24 You have an unavailable witness introducing a 25 statement, and the statement inferentially refers to
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7320
1 Mr. Gordon, and under this case it was decided yesterday
2 that it should not come in.
3 THE COURT: Do we have anything more to say other
4 than this? I don't want to keep the jury waiting. I will
5 talk to them and let them know we are delayed.
6 MS. SC
OTT: I have the tapes to discuss.
7 THE COURT: I will then go in and tell the jury.
8 By the way, I like that point bringing very
9 current, something that happened yesterday in the Supreme
10 Court. Very good, Mr. Trabulus.
11 MR. TRABULUS: Thank you, your Honor.
12 THE COURT: A good thing I am aware of the case.
13 MR. JENKS: Judge, Mr. Trabulus stays out all
14 night on the Internet.
15 THE COURT: We are supposed to get advance
16 information. I don't know how you got it.
17 MR. TRABULUS: I stay on my computer to keep my
18 son off of it.
19 MR. WALLENSTEIN: He hasn't slept in eight weeks.
20 THE COURT: Sorry to put you at a disadvantage,
21 Mr. White. You will come back tomorrow with another case
22 to nullify that case.
23 MR. WHITE: I am working on it. 24 (The following takes place in the jury room.) 25 THE COURT: Good morning, members
of this
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7321
1 wonderful jury, which has almost -- almost all of you have
2 very nice smiles on your face. If you go before I get in,
3 as soon as I walk in you have a smile. I don't know what
4 that means. I am not sure about that.
5 In any event, I am going over some matters of
6 law, which I have for the last 15 or 20 minutes with the
7 lawyers. We are going to be a little bit delayed. We
8 will be with you as soon as we can. I am sorry about
9 that, especially since you are always here on time I feel
10 badly. I like to get you in immediately as soon as I hear
11 that buzzer, get in there. But we will be with you
12 shortly. Sorry about that.
13
14 (Whereupon, at this time the following takes
15 place in open court.)
16 THE COURT: Before we finish with regard to the
17 declaration or statement against penal interest, I looked
18 at the case of United States against Muyet, and the
19 allocution in that case is a little different than the one
20 here. Even the redacted allocution by the defendant said,
21 quote, in or March 1992 I conspired with other people to
22 murder three individuals. Then he says it again, I
23 conspired with other people. 24 The judge said that this portion of the 25 allocution fits squarely within the 804(b)(3) exception to
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7322
1 the hearsay rule, because each of these statements tends
2 to establish an element or elements of a Section 1959(a)
3 offense.
4 Regrettably for the government the allocution in
5 this case was not a good one. As a matter of fact, I
6 probably shouldn't have accepted the allocution. I didn't
7 he
ar a word about a conspiracy. And I failed myself to
8 ask the question which I generally do, which is: Did you
9 do this with other people? Did you have an agreement with
10 other people? I generally do that. For some reason I
11 didn't do it in this case. Nor did the prosecutor. When
12 I turned to the prosecutor and said, is that satisfactory
13 Mr. White, or words to that effect, Mr. White said yes.
14 So we both flubbed it. So I don't know what there is to
15 give to the jury when you have a defective allocution here
16 in relation to the other problems. I don't think I will
17 give any of that. I will deny your application in toto.
18 What is the next order of business?
19 MS. SCOTT: The government is moving to admit
20 three tapes which Mr. White described to you yesterday.
21 They contain statements made by a number of employees.
22 THE COURT: This is the stray comment
s?
23 MS. SCOTT: Yes, comments of the knowledge of 24 defrauding people. The numbers of the tapes are 1382, 25 1383 and 1384.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7323
1 THE COURT: Let me get them out.
2 MS. SCOTT: The exhibit numbers for the
3 corresponding transcripts we are talking about, I can give
4 you those.
5 THE COURT: Take them one at a time.
6 What is the first one?
7 MS. SCOTT: 1382, and transcript 1382(a).
8 THE COURT: Okay.
9 Sometimes I have to take a course in how to turn
10 pages in this kind of a looseleaf book. I can't manage it
11 right away.
12 All right.
13 MS. SCOTT: We are talking about the first two
14 paragraphs in that exhibit. The last one comes in as a
15 defendant admission.
16 THE COURT: Who was Ron Marsh and who is George
17 Robins.
18 MS
. SCOTT: Marsh is an informant wearing a tape
19 recorder, and Robbins is in the employee of the company.
20 THE COURT: A salesperson?
21 MS. SCOTT: Yes.
22 We offered this under 801(d)(2)(E) as corporate
23 admissions. The test for admission is to test forth very 24 clearly in that Pappas case which we have discussed on a 25 prior occasion. The cite of Pappas is P A P P A S. And
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7324
1 the citation is 963 F. 2d 534. And the test is whether
2 there is an agency relationship between the person and the
3 corporation, the speaker and the corporation, and whether
4 the statement is made in the course of that relationship.
5 And, finally whether it relates within a matter within the
6 scope of the agency.
7 Here George Robins was an employee of Sterling
8 Who's Who at the time he made the st
atement. He was
9 speaking about activities in which he had direct
10 responsibility. He was a salesperson.
11 THE COURT: Who is Ron Marsh supposed to be?
12 MS. SCOTT: Posing as a salesperson.
13 THE COURT: Hired by the company?
14 MS. SCOTT: Robbins worked for Worldwide.
15 THE COURT: Pardon me?
16 MS. SCOTT: I am sorry, George Robbins worked for
17 Worldwide and not for Sterling.
18 THE COURT: And Ron Marsh was also employed by
19 Worldwide, albeit a confidential?
20 MS. SCOTT: Yes.
21 THE COURT: This is against Who's Who Worldwide
22 only?
23 MS. SCOTT: That's correct. 24 THE COURT: Any objection to this? 25 MR. DUNN: Your Honor, we are talking about
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7325
1 1383-B?
2 THE COURT: You have both the number and the
3 letter wrong. Otherwise yo
u are in good shape.
4 1382-A, for Abel.
5 MR. DUNN: Thank you.
6 MR. JENKS: Judge, I am going to object to the
7 introduction of these statements, all three of them, on
8 behalf of all the defendants here.
9 THE COURT: So far I have only seen one.
10 MR. JENKS: We are talking about 1382-A, a
11 Worldwide tape with Ron Marsh and so forth.
12 Although Ms. Scott outlines the law in the Second
13 Circuit clearly in the Pappas case. But you should note,
14 your Honor, that the Pappas case is in fact a civil case.
15 In addition, there is no right of confrontation that these
16 employees have with respect to the statements.
17 I would further argue, although she cites
18 801(d)(2)(E), none of these statements were made
19 concerning a matter within the scope, the direct scope of
20 the employment of that particular agent, Mr. Marsh.
21 So I make the same
remarks for all of the
22 defendants on all three of these transcripts.
23 MR. SCHOER: I would add that the Pappas case is 24 a civil case. I know that these rules apply to civil and 25 criminal cases as well, but it seems to me that in a
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7326
1 criminal case, to allow any conversation of an employee,
2 without giving the defendants an opportunity to
3 cross-examine that person, or to test the trustworthiness
4 of that statement shouldn't be permitted. We have certain
5 constitutional rights to confront witnesses against us.
6 And while that statement was made, and I can't contest
7 that it wasn't during the existence of the relationship or
8 concerning a matter within the scope of the agency, I
9 submit, your Honor, I have no opportunity to test the
10 basis for that statement, to cross-examine
a witness. And
11 it is being virtually offered against all the defendants,
12 although there would be a limiting instruction, I assume,
13 and that it is only to be offered against the
14 corporation. But I feel that the prejudice clearly
15 outweighs any probative value and your Honor should
16 exclude it for that reason.
17 MR. DUNN: Also, your Honor, if I may, in
18 reference to Ron Marsh, it is my understanding that he was
19 a government confidential informant put into Who's Who
20 Worldwide.
21 The government apparently doesn't know where he
22 is. We don't have an opportunity to cross-examine and
23 challenge him. So in the same vein as the confrontation 24 issue they addressed, I wanted to bring that to the 25 attention of the Court.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7327
1 MR. TRABULUS: Also with reg
ard to some of the
2 later transcripts, not 1382, but 1383, you have Ron Marsh
3 making the most damaging statements that are on these
4 tapes. And he is a government informant who is making
5 statements about how people are scamming. He is
6 characterizing statements made to him supposedly by other
7 Who's Who Worldwide people the day before or some other
8 day. It is extremely prejudicial. He is certainly not an
9 agent of Who's Who Worldwide. He is an agent of the
10 government, or an agent of Mr. Biegelman. He is making,
11 supposedly, factual statements and trying to get other
12 people to adopt them.
13 MR. NEVILLE: I second that.
14 THE COURT: Who said that?
15 MR. NEVILLE: Mr. Neville.
16 THE COURT: Okay. Now I really have to take a
17 look at it.
18 MS. SCOTT: With respect to the first contention,
19 the fact that it is a criminal case, and
because of that
20 it requires some kind of special consideration, I can cite
21 to you several criminal cases in which corporate
22 admissions have been used not only against a corporate
23 defendant, or have been held admissible not only against a 24 corporate defendant, but against an individual defendant 25 who was the direct supervisor of the person who made the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7328
1 statement.
2 Now, an example of this case is United States
3 against Rioux.
4 THE COURT: I have it before me. That's what I
5 was looking for, you noticed I was burrowing out there?
6 MS. SCOTT: Yes.
7 THE COURT: What is the citation?
8 MR. WHITE: 97 F.3d 648.
9 THE COURT: You have the only case that I found
10 on this subject.
11 MS. SCOTT: In that case there was no corporate
12 defendant.
The Court considered a more -- as to whether
13 it could be used against the supervisor. And found it was
14 admissible.
15 In reaching that case, because of the
16 pre-supposition that it would be admissible against a
17 corporation, if the corporation was a defendant.
18 THE COURT: And used civil cases to back it up,
19 right?
20 MS. SCOTT: Yes.
21 THE COURT: Now with regard to -- that was
22 decided on October 2nd, 1996 by the Second Circuit, so it
23 is fairly recent. 24 MS. SCOTT: Yes. 25 In addition, the courts have always maintained
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7329
1 that the treatment of offered statement under 801(d)(2)(D)
2 is liberal. And for this again I look to the Pappas
3 case. And I would just refer you to a paragraph that
4 begins on page 538 of that opinion, and it is at the
5 bottom of the page.
6 It says: In light of the liberal treatment,
7 proof under 801(d)(2)(D) is accorded, there is sufficient
8 circumstantial evidence in this case to demonstrate -- it
9 talks about the declarant's agency.
10 I will refer you back to page 547 of the Pappas
11 case in which it talks generally about 801(d)(2)(D), and
12 one of the things it says is a statement of an employee of
13 a company is trustworthy because a person who is currently
14 employed by that company is likely -- less likely to make
15 damages statements unless that statement is true. And
16 that's on the bottom of 537 in the Pappas case.
17 THE COURT: Now I know how you got Rioux, because
18 it mentions Pappas, and you put this into the computer,
19 and out it came.
20 MS. SCOTT: You busted me.
21 THE COURT: See, I didn't get it that way,
22 because I don't know how t
o work a computer.
23 MS. SCOTT: That paragraph, I believe you are 24 looking at the slip-opinion. It is the second paragraph 25 after the discussion starts.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7330
1 THE COURT: I see it.
2 MS. SCOTT: Okay.
3 MR. SCHOER: Your Honor, can we have a chance to
4 look at the Rioux case?
5 THE COURT: Take a look.
6 MR. SCHOER: Thank you.
7 THE COURT: One thing Ms. Scott didn't mention is
8 that it was a supervisory person who made the statement in
9 the Rioux case.
10 MS. SCOTT: Yes. But not in Pappas. There was a
11 workman who arrived at the scene of the condominium where
12 the accident occurred and he was carrying a shovel and a
13 bucket. And his statements were held admissible against
14 the employer.
15 Now, just to address the other contention about
1
6 whether these statements are made in the scope of the
17 person's employment, there is no dispute that George
18 Robins and Ron Marsh were employed by Who's Who Worldwide
19 at the time the statements were made.
20 THE COURT: I have no problem with it. The only
21 question is, according to the authoritative test,
22 Weisenberger's Federal Evidence, 801(d)(2)(D), authorizes
23 the admissions of a statement by a party's agent or 24 servant concerning a matter within the scope of the 25 agencies or employment where the statement is offered
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7331
1 against the party employer. The proponent of the
2 vicarious admission must establish a foundation which
3 demonstrates that the declarant, Robbins, at the time of
4 the making of the statement was an employee of the party
5 against whom the statement is
offered, and it must concern
6 a matter within the scope of the employment.
7 The question is: Is it within the scope of the
8 employment?
9 MS. SCOTT: That's your question?
10 THE COURT: Yes.
11 MS. SCOTT: Your Honor, first of all these two
12 men were employed at Who's Who Worldwide as salespeople.
13 They are making statements about the way they -- the
14 things that they say to people when trying to make a sale;
15 and the fact in their mind the things they are saying are
16 fraudulent.
17 I would refer you to a case called Zaken against
18 Boerer.
19 THE COURT: Also cited in Rioux.
20 MS. SCOTT: That's not where I got it.
21 THE COURT: That's Z A K E N?
22 MS. SCOTT: Yes, and Boerer is B as in Bagel,
23 O E R E R. 24 THE COURT: I would not pursue it too much. What 25 does the Zaken case say?
HARRY RAPAPORT,
CSR, CP, CM OFFICIAL COURT REPORTER 7332
1 MS. SCOTT: In that case the offered statement
2 was the statement of a vice president of a company. The
3 suit was brought against the president of the company
4 because she was firing women who were pregnant. Once they
5 got pregnant she fired them.
6 The offered statement is the statement of a vice
7 president of I believe sales. And I will find out what he
8 says for sure. But a vice president in the company stated
9 that another woman in the past had been fired because she
10 was pregnant.
11 I would submit, your Honor, in a case, if that
12 kind of statement being in furtherance -- I mean in the
13 scope of his authority, then, in other words, it simply
14 had to do with his responsibilities. And let me just find
15 it.
16 Page 1323 of the Zaken against Boerer decision.
17 Ed Newman, the com
pany's then vice president of
18 sales told the witness that another woman was fired
19 because she was pregnant. And that statement was held to
20 be within his -- within the scope of his employment with
21 the company.
22 Now, I don't see -- Robin Weinberg was I believe,
23 a salesperson and that's why it was within the scope of 24 his employment. And that's a fairly tenuous connection in 25 this case.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7333
1 In this case here the connection is very clear.
2 These people are talking about what they do everyday as
3 salespeople of the company, what they say to people and
4 what the effect is on the people.
5 THE COURT: Your point is that in Zaken although
6 the declarant was a vice president, he spoke about a
7 matter that would not normally be within the scope of his
8 employ
ment? That it would be has little more attenuated?
9 MS. SCOTT: The scope of the employment as
10 determined in Zaken is very broadly defined.
11 THE COURT: I agree with you.
12 MR. SCHOER: Except that in the Rioux case, and I
13 don't know if I am pronouncing it correctly.
14 THE COURT: Rioux.
15 MR. SCHOER: Rioux. That it seems to indicate
16 that someone has to be in a -- to be a participant in a
17 decision-making process that is the subject matter of the
18 statement.
19 THE COURT: In that case, yes. But not in this
20 case, Mr. Schoer. In this case a salesperson is one of
21 the people that would normally deal with how people are
22 nominated or they are going to be asked that question by
23 everybody they talk to. That's within the scope of their 24 employment. That's within their concern. 25 Of course, they say we don't know, or we can't
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7334
1 tell you, or it is anonymous. But it is a subject within
2 the scope of their employment. No question about it.
3 MR. SCHOER: I am still concerned about the 403
4 analysis. While this may be admissible, the question is
5 as to whether the probative value is outweighed by the
6 prejudice.
7 THE COURT: I don't think it is. It is not going
8 to be an emotional situation where someone is cutting up
9 bodies. It is not going to confuse the jury.
10 MR. SCHOER: I understand with respect to this
11 statement we are discussing right now that your Honor
12 might take that position. But I think when you listen to
13 the other statements, the lack of ability of the
14 defendants to cross-examine the witnesses making the
15 statements in a criminal case will lead your Honor to
16 believe that th
e prejudice is outweighed by the probative
17 value.
18 THE COURT: 1382-A for Abel is in.
19 What is the next one?
20 MR. NEVILLE: Your Honor, I propose if the Court
21 is going to allow that in -- first, I should say it is
22 obvious why the government is putting the tapes in, not as
23 against the corporation. It is no coincidence or surprise 24 that there is Tara Garboski and Steve Walden on the tapes. 25 THE COURT: That's not going in. The Tara Green
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7335
1 part --
2 MR. NEVILLE: Is not going in.
3 THE COURT: No.
4 MR. NEVILLE: Nor Steve Walden?
5 THE COURT: Looking at 1382-A for Abel, Steve
6 Walden is not on there. It is not going in with this, but
7 it is an admission.
8 Did you put this in as of now, Tara Green's
9 statement?
10 MR. SCHOER: No
.
11 THE COURT: In 1382-A for Abel?
12 MS. SCOTT: We have not played it because we are
13 waiting for the ruling on the top part. We assumed that
14 the Tara Green statement would go in as an admission
15 against interests.
16 THE COURT: You will play the whole thing then?
17 MS. SCOTT: Yes.
18 THE COURT: All right, I was in error, all
19 right.
20 MR. NEVILLE: I would ask we be allowed to
21 express to the jury that in each of these instances there
22 is a government plant; that the jury understands that part
23 of the parties in these statements are informants. 24 MR. SCHOER: And I think also -- I am sorry. 25 MR. NELSON: If I might, returning to the issue
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7336
1 the Court raised with respect to the scope of the
2 employment, one of the concerns I have in meeting tha
t
3 prong is that Mr. Marsh is actually wearing two hats at
4 the time he is engaging in this conversation. He might
5 ostensibly be employed at Who's Who Worldwide at the time
6 the statement is being elicited. But the point of fact is
7 that he is employed at Who's Who Worldwide at the
8 instruction and direction of the United States
9 Government. I think that that bears significantly --
10 THE COURT: I am going to tell the jury that.
11 MR. NELSON: Thank you, your Honor.
12 MR. SCHOER: Judge, with respect to the issue
13 raised by Mr. Neville, and the statement by Ms. Green --
14 Ms. Garboski -- I think it ought to be made clear to the
15 jury that there is a tremendous amount of tape in-between
16 these two statements. And they are not -- they weren't
17 during the course of the same conversation. The man was
18 wired for the whole day. And the conversation with
19 Mr. Robbins, I don't remember particularly how long before
20 the statement by Ms. Garboski, but I believe it was a
21 significant period of time. It wasn't the same
22 conversation. The same people weren't present. I
23 think -- 24 MS. SCOTT: We agree there is a large expanse of 25 time in-between those two statements on the tape. We
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7337
1 agree with that.
2 MR. SCHOER: Really it should have been separate.
3 THE COURT: I think you will pay them separately
4 then?
5 MS. SCOTT: Yes.
6 THE COURT: At different times.
7 MS. SCOTT: We always agreed --
8 THE COURT: One minute, will you?
9 MS. SCOTT: Okay.
10 MR. NEVILLE: I would ask the government to
11 inform the defendants --
12 THE COURT: Would you wait one minute, please?
13 (Whereupon, at t
his time there was a pause in the
14 proceedings.)
15 THE COURT: You will play them separately at
16 different times.
17 MS. SCOTT: Okay. And we will stick something
18 in-between them.
19 MR. NEVILLE: I am told the Ron Marsh person is
20 unavailable, and the government can't find them. We as
21 defendants have been trying to locate him also.
22 I would like to put in the record now for later
23 on in the jury instructions in terms of the availability 24 of witnesses, if we argue in our summation something about 25 Ron Marsh, I don't want Mr. White to ask for an
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7338
1 instruction that we could have called him if we wanted
2 to. We made efforts to find him. We can't find him. The
3 government can't find him, so he is fair game to the both
4 of us.
5 THE COURT: You cert
ainly can comment on
6 summation.
7 MR. NEVILLE: But I don't want Mr. White to have
8 the Court instruct the jury that we could have somehow
9 called him if he didn't, which they undoubtedly would do
10 for Marty Biegelman.
11 MS. SCOTT: We submitted an instruction for your
12 Honor's consideration to the effect that neither party can
13 be held to account for failing to call certain witnesses.
14 It is toward the end of the instruction packet that we
15 gave you.
16 THE COURT: Right.
17 MR. WHITE: I don't mean to interrupt the
18 argument and I don't want to have dueling arguments, but
19 in response to something Mr. Neville said relating to a
20 conversation I had with defense counsel.
21 I never said that Mr. Marsh was unavailable and
22 didn't know where he was. Mr. Schoer asked me a specific
23 question, when was the last time I spoke to him. I
told 24 him it was a fair number of months ago. I want to clarify 25 this so something is not left unclear.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7339
1 The government and the defense had extensive
2 discussions.
3 We agreed that the defense would stipulate to the
4 authenticity of all of them on the condition that the
5 government call the three informants we have called,
6 Mr. Watstein, Mr. Zerring and Mr. Ihlenfeldt. And that
7 the remaining CIs would not have to come here and
8 authenticate the tapes because the defendants would agree
9 to their authenticity. I understood it was in the
10 defendants' interest because they would not then have to
11 track down informants that we couldn't call that made
12 tapes they consider favorable. For instance, Mr. Trabulus
13 indicated he wanted to play a tape favorable to
14 Mr. Gordon. The government didn't intend to call him. I
15 said, I will agree to the authenticity of that, and you
16 can play it without having the guy here.
17 That's the same with Mr. Marshisoto, the real
18 name of Mr. Marsh.
19 THE COURT: You have to spell that one.
20 MR. WHITE: M A R S H I S O T O.
21 THE COURT: Do you know where Mr. Marshisoto
22 was?
23 MR. WHITE: Yes. 24 THE COURT: Where is he? 25 MR. WHITE: I don't know off the top of my head.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7340
1 THE COURT: Does the defense want his address?
2 MR. NEVILLE: Yes, your Honor.
3 THE COURT: All right. Produce his address.
4 MR. WHITE: If that's the case, your Honor, I
5 consider that a violation of a stipulation that we have
6 agreed to. And I may not now agree to the defense tapes
7 they want. I
don't want to get into a tit for tat.
8 THE COURT: This stipulation, is it in writing?
9 MR. WHITE: I am sorry?
10 THE COURT: How was this stipulation entered
11 into?
12 MR. WHITE: The stipulation was in writing.
13 THE COURT: Where is the stipulation?
14 MR. WHITE: My point is it only specifies certain
15 of the defense exhibits, because they hadn't specified the
16 others yet. I don't want to do that. What they are
17 suggesting is violative of the agreement we have.
18 THE COURT: I want to see the stipulation.
19 MR. WHITE: The stipulation said the following
20 things are to be admitted, I want to explain the
21 background that led up to that. I feel if I have a chance
22 to talk to defense counsel it can be worked out.
23 MR. TRABULUS: I was party to some of the 24 discussions and I have to express some disagreement with 25 Mr. White's version o
f the negotiations.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7341
1 It is true that Mr. White agreed to produce
2 certain of the informants. I wanted Ihlenfeldt and
3 Zerring produced. Apparently other counsel wanted
4 Mr. West produced. I also wanted to play a tape, and
5 indicated I wanted to play a tape with regard to
6 Mr. Lindauer. And I believe in the discussion there were
7 two informants, two of the six, who Mr. White said they
8 served sentences, had gone over somewhere and there is no
9 assurance where they can be obtained. I believe one of
10 the two was Mr. Marshisoto, if I recall correctly. But I
11 know there were two he didn't know where they were. He
12 wanted to play their tapes. As a quid pro quo for us
13 playing tapes without calling various informants, we
14 entered into the stipulation. That's the factual
15 predicate for us agreeing to enter into the stipulation.
16 The stipulation itself does not embody that discussion.
17 But that discussion was --
18 THE COURT: Is the understanding that the
19 government was only to produce those three informants and
20 not anybody else? Is that the understanding?
21 MR. TRABULUS: Yes. And it was predicated upon
22 the government stating to us that they did not know where
23 two of the informants were. One I believe was 24 Mr. Marshisoto. 25 Q Was the agreement that you would not call either of
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7342
1 the other informants?
2 MR. TRABULUS: No.
3 THE COURT: Why is that a breach of the
4 agreement, Mr. White?
5 MR. WHITE: Your Honor, precisely, and, again, we
6 are disagreeing. But my understanding was that
7 government -- that they w
ere not going to call the other
8 informants.
9 THE COURT: That's not in writing, was it?
10 MR. WHITE: No.
11 THE COURT: There is a disagreement. I am
12 telling you now if they want to call the other informant I
13 will let them do it. So I am directing you to turn over
14 to them the address of this gentleman whose name I can't
15 pronounce.
16 MR. WHITE: Okay.
17 THE COURT: That's the end of that. Next case.
18 Do you want to go into the next tape?
19 MR. WHITE: Ms. Scott will.
20 THE COURT: If you want that address, whoever
21 wants it, you are going to have it.
22 MR. NEVILLE: Thank you.
23 THE COURT: You better give it to him as soon as 24 possible. They want to subpoena this person or have an 25 investigator go out.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7343
1 What is the next tap
e?
2 MS. SCOTT: Referring now to
3 Government's Exhibit 1383.
4 MR. JENKS: Is it B, Ms. Scott?
5 MR. WHITE: 1383. And the exhibits are -- I am
6 not talking about 1383-A, because that, it seems to me
7 comes in as an admission against interest. It is Steve
8 Walden and Ron Marsh speaking, an admission of the
9 defendant.
10 THE COURT: Okay.
11 What transcript is this?
12 MS. SCOTT: 1383-A. I am not asking you to admit
13 it under 801(d)(2)(E) because it is an admission of the
14 defendant.
15 1383-Baker, is a conversation of Ron Marsh and
16 George Robbins.
17 THE COURT: The same two people?
18 MR. SCHOER: And a third person whom we don't
19 know.
20 MR. JENKS: We don't know.
21 THE COURT: Let me read it.
22 (Whereupon, at this time there was a pause in the
23 proceedings.) 24 THE COURT: I will exclude the
first, the 25 second -- the first, second, third, fourth and fifth
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7344
1 statements are out. They say something and mean nothing.
2 And like I said, we are not a marketing company
3 laughing, starting with that.
4 MS. SCOTT: Okay.
5 THE COURT: Any objection to that? Is it the
6 same objections?
7 MR. JENKS: The same objections. But in this
8 tape, your Honor, you should at least look at 403.
9 There are two statements here by Mr. Robbins, and
10 lying.
11 When you consider the prejudicial effect to all
12 the defendants versus the probativeness in light of all
13 the previous tapes played and introduced, I would suggest
14 it outweighs the probative value of this tape. And I ask
15 in your discretion to exclude the tape.
16 THE COURT: No, your motion is denied.
17 MR. LEE: Your Honor, I am asking the Court to
18 make the distinction between a statement of fact, I don't
19 know if it is in the scope, but a distinction between a
20 statement of a fact and an opinion by someone. And I
21 think an opinion is not within the scope. It certainly
22 lacks probative value. We don't know the motivation for
23 the opinions. 24 I am asking your Honor when you scrutinize this, 25 that this is important to distinguish between something
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7345
1 which is an absolute factual statement.
2 THE COURT: Objection overruled.
3 Next.
4 MR. NELSON: If I may be heard on a 403 issue on
5 a somewhat different ground as relating to Mr. Osman.
6 As the Court recalls I made a severance motion as
7 relating to Mr. Osman. My severance motion was with
8 regard to b
eing tried with Mr. Gordon and the
9 corporations.
10 Your Honor, these recordings were made in August
11 of 1994, and are being introduced as vicarious admissions
12 of the corporation that Mr. Osman was not employed by at
13 the time the statements were made. He didn't come to be
14 employed until November of 1994.
15 I would submit as it relates to him and the
16 prejudicial spillover on all the other defendants are such
17 that the 403 issue should be explored much more closely,
18 than merely a balancing of their probative worth as
19 against the prejudicial effect, particularly as it relates
20 to my client, since he wasn't even an employee of the
21 company at that time.
22 MS. SCOTT: Mr. Osman's motion was to sever the
23 mail fraud from the tax. It wasn't to sever Mr. Osman 24 from the other mail fraud defendants. 25 THE COURT: Do you wish me to say
at the time of
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7346
1 the charge that at the time the statement was made that
2 the defendant Osman was not an employee of the company?
3 MR. NELSON: Yes, your Honor.
4 THE COURT: All right.
5 MR. LEE: Your Honor, as we go on and analyze
6 each of these tapes, your Honor should know also that the
7 opinion of the person speaking is being offered actually
8 to prove what I feel is the pivotal issue in this whole
9 case, which is intent, and their knowledge of committing a
10 crime. I think that is the pivotal issue as far as I am
11 concerned. And these statements are opinions of a person
12 of his intent or criminal intent. And that's the pivotal
13 issue in this case. And I feel that it merely argues
14 toward excluding that.
15 MR. TRABULUS: More than. It is not saying I am
1
6 lying, it says we are lying, making a statement not only
17 about his own intent or other people.
18 THE COURT: Responding one at a time, I overrule
19 your objection, Mr. Lee and yours, Mr. Trabulus.
20 With respect to 403, Mr. Nelson, let me read to
21 you from the outstanding authoritative text,
22 Weisenberger's Federal Evidence on Rule 403.
23 Quote, exclusion on the basis of unfair prejudice 24 involves more than a balance of adverse prejudice. If 25 unfair evidence referred to any evidence prejudicial to a
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7347
1 party's case, anything adverse to a litigant's position at
2 trial would be excludable under 403: Emphasis must be
3 based on the word, inside quote, unfair. Unfair
4 prejudice -- which is the words in the rule -- and that
5 quality of evidence that might result in an improper,
6 usually irrational basis for a jury decision.
7 Consequently, if the evidence arouses the jury's emotional
8 sympathies, use of drugs, criminal actions -- I added
9 those last two -- evokes a sense of horror -- photographs
10 of an open wound close up, or appeals to an instinct to
11 punish -- the evidence may be unfairly prejudicial.
12 Usually, although not always, unfairly prejudicial
13 evidence appeals to the jury's emotions, rather than
14 intellect.
15 Unfair prejudice may be present when inflammatory
16 or otherwise shocking real proof or photographs are
17 offered.
18 It must be remembered that Rule 403 calls for a
19 balancing of probative value against the case
20 counterweight, and no evidence is admissible simply
21 because it is sensational or prejudicial.
22 Then it goes on to say other reasons for 403,
23 which is confusion of the
issues, or misleading the jury. 24 I don't think that this evidence is unfairly 25 prejudicial. It is certainly prejudicial, but it is not
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7348
1 unfairly prejudicial.
2 MR. TRABULUS: Your Honor, if I may add one
3 additional ground for my objection?
4 THE COURT: Yes.
5 MR. TRABULUS: This is to be admitted only
6 against the corporate defendants. So, with regard to the
7 individual defendants we are in a Bruton type situation,
8 because it is an admission by -- I will make the same kind
9 of distinction as the one in Bruton and Gravy against
10 Maryland, here. So there is a constitutional objection,
11 in addition to the objection -- there is a constitutional
12 objection on behalf of all the non-corporate defendants,
13 in addition to the objection under the Federal Rules of
1
4 Evidence.
15 MR. SCHOER: I was going to add and I think I
16 said it before, that I think that word "unfair" that your
17 Honor can consider the lack of the ability to confront the
18 witness and to test the trustworthiness of the statement
19 in determining whether or not there is unfair prejudice in
20 the balance with respect to probative value. And I think
21 that that is the key here.
22 THE COURT: You cannot confront George Robbins?
23 MR. SCHOER: We cannot. 24 THE COURT: Where is George Robbins? He is not 25 the confidential informant, is he?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7349
1 MR. WHITE: No, your Honor.
2 THE COURT: Why can't you confront him? He is
3 the one making the statement and not Mr. Marsh.
4 MR. DUNN: Your Honor, we don't know where
5 Mr. Robbins is. It is my recollection is he was on th
e
6 witness list originally from the government, so they know
7 where he is. If they want to give us his address I would
8 request that also.
9 THE COURT: Give them the address for George
10 Robbins.
11 MR. DUNN: I would like to step back a moment to
12 1383-A dealing with Mr. Walden, I would like to object to
13 the confrontation issue as well pertaining to Mr. Marsh.
14 THE COURT: Your objection is overruled.
15 MR. TRABULUS: Judge, with regard to the
16 confrontation issue, I don't believe the burden should be
17 on the defense to have to call individuals who
18 out-of-court statements are being introduced by the
19 government. I don't believe our right to confront
20 requires us -- puts the burden on us to put on the defense
21 case that includes the prosecution witnesses.
22 THE COURT: I don't either. But you raised the
23 right of confrontation
. And the one who is given the 24 probative evidence against the corporation is George 25 Robbins, and not the confidential informant.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7350
1 MR. TRABULUS: True with regard to Mr. Robbins,
2 but if our right of confrontation is to be honored, it is
3 their burden to produce him, not ours.
4 THE COURT: 801(d)(2)(D) permits it, right of
5 confrontation nevertheless, it permits it.
6 MR. WHITE: Your Honor, I would like to respond
7 to one thing Mr. Trabulus said and not Ms. Scott.
8 THE COURT: You mean he is using the new case?
9 And very well, I think, too.
10 MR. WHITE: I don't know, I have not read it yet.
11 THE COURT: Neither has he. But that hasn't
12 stopped him at all.
13 MR. TRABULUS: I did read the syllabus.
14 MR. WHITE: I want to make it clear with respect
15
to Mr. Marshisoto here. He made five tapes. Two of them
16 are already in evidence. The defendants stipulated that
17 it could -- that it can come in.
18 The only issue with respect to the remaining
19 three we are talking about now, the only issue they raised
20 pretrial is whether or not this is admissible as a
21 corporate admission. It is not like they were demanding
22 to have Mr. Marshisoto here.
23 THE COURT: But they raised their legal 24 arguments. They have a right to do that. 25 What is next?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7351
1 MS. SCOTT: 1383-C, your Honor. And the same
2 principles would permit that person of the tape to come
3 in.
4 In that case we have a conversation between
5 Mr. Marsh the informant, and a person we have identified
6 as a male voice, but we know it to be an employee by the
7 name of Richard Pollito.
8 THE COURT: How do we know that?
9 MS. SCOTT: He is referred in other portions of
10 the tape. The transcriber didn't refer to him when he was
11 making his statements. She didn't mark his statements
12 with his name.
13 In draft transcripts provided to the defense we
14 made the attribution to Richard Pollito.
15 THE COURT: Where it says male voice, it is
16 Mr. Pollito?
17 MS. SCOTT: That's correct.
18 THE COURT: You have to put that in, don't you?
19 MS. SCOTT: All right.
20 THE COURT: Let me just read this.
21 (Whereupon, at this time there was a pause in the
22 proceedings.)
23 THE COURT: Who is Richard Pollito? 24 MS. SCOTT: An employee of the company, a 25 salesperson.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7352
1 THE COURT: Any objection?
2 MR. TRABULUS: Yes, but with regard to this one,
3 this is basically Ron Marsh using these employees as a
4 foil. He is basically feeding them the points. It is Ron
5 Marsh talking and Ron Marsh making the statements.
6 MR. LEE: I would like to inform the fact as far
7 as I know, first of all what Mr. Trabulus says is true.
8 But these files as I understand it were employees there
9 for a very short period of time. I was there for maybe
10 two weeks and then left.
11 THE COURT: George Robbins was there for two
12 weeks?
13 MR. LEE: I am talking about two or three weeks.
14 Therefore, that goes -- again, it makes the statements
15 less reliable and more suspect. And it makes it more
16 tending to not be a statement based on observation -- the
17 operations of the corporation, but more an outsider's
18 opinion or a new person's opinion. And I think the
19 s
tatement goes to the part of the defense.
20 MR. TRABULUS: They may be basing the opinion not
21 on the company's practices, but upon what Mr. Marsh is
22 telling them. It goes to the reliability of what they are
23 saying. 24 MS. SCOTT: Your Honor, that's an argument that 25 can be made to the jury in summation. The tape speaks for
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7353
1 itself. If people want to attribute a different meaning
2 to it they can do it in argument.
3 MR. TRABULUS: There is a certain threshold here
4 with respect to scope of employment and the opportunity to
5 have knowledge of what is being spoken about. If these
6 people were there only a couple of weeks, I am not sure
7 that is made, particularly if it is Marsh making the
8 assertion of going along with it or what appears to be a
9 humorous episode.
10 THE COURT: At the least how long was George
11 Robbins with the company, two weeks?
12 MR. TRABULUS: I don't know. It goes back to
13 1382-A.
14 THE COURT: I don't know how long he is with the
15 company.
16 MR. LEE: The defense is now prepared to take the
17 position without affidavits that it was at the top three
18 weeks. And if your Honor --
19 THE COURT: Does the government know how long he
20 was with the company?
21 MR. SCHOER: I believe we have some 3500 material
22 with respect to that, if I can have a second to find it
23 and we may have the answer. 24 MR. NEVILLE: My client Scott Michaelson says he 25 doesn't know who this person is.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7354
1 MR. TRABULUS: Neither does Mr. Gordon.
2 MR. SCHOER: I have it here.
3 MR. WHITE: Your Honor, I don't
know how long he
4 was there. He was an employee at the time he made the
5 statements. He was a salesperson.
6 MR. SCHOER: He worked for a month. According to
7 the 3500 material, the notes of -- I don't know who it is,
8 one of the postal inspectors, he claims he worked from
9 4/94 or 4/85, worked for a month. And this is August.
10 This doesn't even match up. It is April or May according
11 to the notes.
12 MR. TRABULUS: The government has all the
13 employment records of Who's Who Worldwide. They were in
14 the warehouse in Brooklyn.
15 MS. SCOTT: Your Honor, if I might direct you
16 back to Zaken against Boerer, which may help you with this
17 issue.
18 In that case they discuss the weight that can be
19 given to declarant's statement, who was Ed Newman, the
20 company's then vice president of sales. And the defense
21 challenged the statement o
n the additional ground that
22 Mr. Newman had left the company in a bloodless cue at the
23 time he made the statement. And people believed at the 24 time he made the statement he was conspiring against the 25 company.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7355
1 The Court found that it wasn't a reason to
2 exclude the statement. They said it goes to the weight of
3 the statement rather than the admissibility.
4 THE COURT: Does the government stipulate that he
5 was with the company a month?
6 MR. NELSON: His interview notes reflect, your
7 Honor, he was there for a short time where he never
8 reached the level of employment where he was given the new
9 lead cards. He was only given the NG cards which were
10 being redistributed for the people being retrained.
11 THE COURT: Where is this?
12 MR. NELSON: Page 5 of
3500-21-A, an interview
13 conducted by the government of George Robbins on March
14 30th, 1995. And it states in those records on page 5 of
15 the records.
16 MR. SCHOER: It says that all new telemarketers
17 would work NG cards only. After one month additional
18 training to work fresh cards. And he says he worked there
19 only a month.
20 MR. NELSON: It states on line 5, never made to
21 it fresh cards.
22 MR. SCHOER: GR took second training sessions.
23 Never made it to new, paren, fresh, close paren, cards. 24 MR. TRABULUS: Your Honor, the company's practice 25 was to keep people on old cards for only two weeks.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7356
1 MR. LEE: The 3500 material says he didn't
2 complete the last week, which is the fourth week. So I
3 feel the original three weeks is more likely.
4 THE COURT: I am persuaded to disallow this not
5 under the basis of unfair prejudice, but confusion of the
6 issues or misleading the jury.
7 Here is what the text says:
8 If the jury is likely to ascribe excessive
9 unwarranted weight to the evidence, the offered proof is a
10 candidate for exclusion under Rule 403.
11 In any situation in which the evidence must be
12 accompanied by a limiting instruction so convoluted or
13 tortured that the jury would be at a loss to gauge the
14 proper application or weight of the evidence, Rule 403 may
15 operate to exclude the offer.
16 As a generalization the more remote from the fact
17 of the event sought to be proven the lower its probative
18 value; an extremely remote fact possessing extremely low
19 probative value may be excluded under 403 when an
20 appropriate counter weight is prejudice, e.g., confusion
21
or prejudice.
22 Now, reading this part, this 1383-C, when I read
23 the last portion on the first page, which by George 24 Robbins says, and this is the most damaging part, and it 25 is really the only damaging part, quote, we only take in
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7357
1 9,999, because we are the most exclusive directory in the
2 entire world.
3 That's in response to Mr. Marsh saying 10,000 to
4 15,000 we apply, we only take 1,000.
5 In response to that Mr. Robbins said, we only
6 take 9,999 because we are the most exclusive directory in
7 the entire world.
8 Now, when I first read it I thought he was being
9 cute, funny or making a joke when he said that. That's
10 the impression I got. It was like a flip statement.
11 My impression is fortified by the fact that this
12 man worked less than a month w
as not a full statement, and
13 only working with NG cards. And for me to allow this to
14 go into evidence when it probably was a flip statement by
15 a salesman who wasn't very experienced in the company, I
16 think it would be unfairly prejudicial and would mislead
17 the jury, mislead the jury.
18 MS. SCOTT: Your Honor, there is no evidence that
19 he didn't move on from NG cards. We have no evidence of
20 that. The government has agreed to stipulate that he
21 wasn't there for more than a month. It is a very
22 uncomplicated instruction to give to the jury. And the
23 rest are things the defense can argue as going to weight. 24 These statements fall squarely within 801(d)(2)(E). 25 THE COURT: I don't know if they do. How does he
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7358
1 know if he worked a month how much they take?
2 MS. SCOTT: Eric Ihlenfeldt knew after a week.
3 That's what this goes to, you figure it out quickly. You
4 saw that they were taking back everybody who was sending
5 back lead cards.
6 MR. SCHOER: They put Mr. Zerring there who was
7 there for ten weeks and he didn't say he knew anything
8 about anybody committing any fraud.
9 MS. SCOTT: Part of this is we are not allowed to
10 bring this out in the course of questioning.
11 MR. SCHOER: You brought it out when you
12 questioned Ilhenfeldt, and you didn't bring it out when
13 you questioned Zerring, and you didn't. You could have.
14 MS. SCOTT: Perhaps because the defense failed to
15 object to that.
16 THE COURT: I recall in this case that no one has
17 said that they accept everybody.
18 Also, no one has testified as of now that they
19 only turned down one out of 10,000 people, except for this
20
statement now. I have seen no evidence of that in this
21 case. In fact, it has been skirted around quite a bit
22 about what in fact they do accept and don't accept.
23 There is no doubt that the preponderance of the 24 evidence -- and I don't mean legal proof -- but most of 25 the evidence is that they accept almost everybody. But no
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7359
1 one has said that they take 9,999 out of 10,000. This is
2 entirely new. There is nothing in the case like this.
3 And to have an employee, who is a short term employee, not
4 yet a full salesman, apparently, to say a thing like this
5 and in a very casual and flip manner I think that would
6 confuse the jury unnecessarily, and unduly and in a
7 probative weight.
8 You had witnesses who knew about this.
9 Mr. Saffer working with the company for many years,
he
10 never said they took 9,999 out of 10,000. You never asked
11 the question. I am excluding it.
12 MR. WHITE: You are excluding C?
13 THE COURT: Yes.
14 MR. SCHOER: Can we go back to B?
15 THE COURT: You can always go back to B, until
16 the jury is discharged, I told you.
17 MR. SCHOER: Until it gets in.
18 THE COURT: Even when it gets in.
19 I am looking at B.
20 MR. SCHOER: B also, Judge, I think if you listen
21 to the tape you will get the sense of these
22 conversations. And if you see where Mr. Robbins says, we
23 are lying, there is laughter before that. 24 Yes, these statements are very flip. And it is 25 the same analysis as you just entered into with respect to
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7360
1 C that is so with respect to B.
2 THE COURT: Except 9,999 is a concrete flip.
3 That's a real flip.
4 Your objection is overruled. That will go in.
5 1383-B, I do not revise my ruling.
6 What else do we have?
7 MS. SCOTT: 1383-D, as in Daniel. A conversation
8 between Richard Pace and Ron Marsh and --
9 THE COURT: How much more do we have?
10 MS. SCOTT: We have D, E and F.
11 THE COURT: I will go into the jury and tell them
12 they can walk around.
13 How much more do we have?
14 MS. SCOTT: D, E and F, and 1384-A, so we have
15 four more.
16 MR. TRABULUS: While you do that, may I leave to
17 go to the wash room upstairs?
18 THE COURT: Yes.
19 (Whereupon, at this time there was a pause in the
20 proceedings.)
21 THE COURT: Anybody have any objection to me
22 telling the jury as a sort of a quid pro quo, that it
23 appears that the government may rest today? 24 MR. WHITE: No objection.
25 THE COURT: Anybody objection to that?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7361
1 MR. NELSON: No.
2 MR. DUNN: No.
3 THE COURT: Mr. Gordon, do you think Mr. Trabulus
4 would object?
5 THE DEFENDANT GORDON: No, he would not.
6 THE COURT: All right.
7 (The following takes place in the jury room.)
8 THE COURT: I have some good news and some bad
9 news.
10 The bad news is we are still going over some
11 matters.
12 The good news is I am permitted to tell you that
13 it is likely that the government may rest their case
14 today. I bought that in to pave the way so you would not
15 throw some cards at me or something. But it may be.
16 Certainly by tomorrow probably.
17 What I am doing is going over certain evidentiary
18 offers which I am finding out whether it will go to you or
19 not.
That's what I am doing.
20 So it will take a little more time, maybe another
21 half or three-quarters of an hour.
22 In return for which you heard what I just told
23 you. 24 That's the story; and I again apologize. I 25 didn't realize it will take this long, but I cannot avoid
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7362
1 this. It might save a lot of time as a matter of fact.
2 JUROR NO. 7: I have a question.
3 Based on your experience, how long do you think
4 the defense will be?
5 THE COURT: That's impossible to say. They have
6 no burden. They need not put in any defense. You can't
7 infer anything as a result of it. So that is an open
8 question. We will see.
9 A JUROR: Thank you.
10 (Whereupon, at this time the following takes
11 place in open court.)
12 THE COURT: We will take a short reces
s at this
13 time.
14
15 (Whereupon, a recess is taken.)
16
17 MR. TRABULUS: Your Honor, one statement I made
18 before I wanted to correct because it may have given the
19 erroneous impression. I believe Mr. White did not tell me
20 that it was Mr. Marshisoto whose whereabouts he did not
21 know. Another informant in terms -- whose first name is
22 R, it was Mr. Greenberg. One was Lindauer, he tells me it
23 is Greenberg, and I spoke with Mr. Schoer and it is 24 consistent with his recollection. 25 THE COURT: I did tell the jury that the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7363
1 government may rest today. I am sure you have no
2 objection to that?
3 MR. TRABULUS: Of course not.
4 THE COURT: I told them that to ease the way.
5 Are you all right?
6 THE DEFENDANT OSMAN: I am fine. Thank
you for
7 your concern.
8 THE COURT: One of the jurors asked how long the
9 defense would be, and I told them you can't concern
10 yourself with that.
11 When I told them there is an end to the
12 government's case, they are now looking for the next end,
13 the real end.
14 What is next?
15 MS. SCOTT: 1383-D, offered under 801(d)(2)(D),
16 as a corporate admission. It is a conversation by
17 Marshisoto, Richard Pace and George Robbins.
18 THE COURT: Who is Richard Pace?
19 MS. SCOTT: Pollito, the other employee whose
20 name was left out in the prior tape.
21 THE COURT: He is not a confidential informant?
22 MS. SCOTT: No, an employee -- a salesperson.
23 THE COURT: Let me read it. 24 (Whereupon, at this time there was a pause in the 25 proceedings.)
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7364
1 THE COURT: It goes on for several pages?
2 MS. SCOTT: Three pages, I believe.
3 THE COURT: I didn't see anything in the first
4 page.
5 Any objection to this?
6 MR. NEVILLE: I object.
7 MR. TRABULUS: I object, too.
8 THE COURT: Objection sustained. I will not
9 allow it. There is nothing here until the third page when
10 Mr. Marsh says at the top of page 3, we are scamming
11 people on the phone, and we all fucking know it, okay, he
12 is not comfortable with it, there's the bottom line, man.
13 Then Mr. Robbins says, I act like I am perfectly
14 comfortable with it.
15 MS. SCOTT: May I propose a solution, your
16 Honor?
17 THE COURT: This is an obvious come on -- most of
18 the talking is by Mr. Marsh, the confidential informant
19 here.
20 MS. SCOTT: Let me direct your attention to the
21 first paragraph on page 1,
and that's Richard Pace
22 speaking, talking about what it is like to call a person
23 up, how nervous he gets, what he is thinking about 24 offering the person. 25 THE COURT: You want to put that in?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7365
1 MS. SCOTT: Yes.
2 THE COURT: I will let you put that in.
3 MS. SCOTT: Further down the page they discuss as
4 to whether they have a problem with it. Some say they
5 have a problem. And George Robbins talks about how he
6 deals with it. He says you have to modulate your voice --
7 you can't dance on the phone because they hear that in
8 your voice. That's when they think you are just another
9 telemarketer.
10 THE COURT: You can put that in.
11 MR. LEE: May I interject at this point and
12 inform your Honor, I think the same is true with Mr. Pace,
13 he was there
for perhaps one month. And the first
14 paragraph is consistent with someone who is new and
15 nervous about how he is performing his functions on the
16 job. It might be misleading.
17 THE COURT: Objection overruled.
18 The reason I excluded the other statement is
19 because it made an obviously outrageous statement, without
20 knowledge and with sort of a tongue and cheek. And I am
21 talking about the 9,999.
22 Overruled. I will let it in.
23 You want the first page in? 24 MS. SCOTT: Yes, your Honor. 25 THE COURT: All right, first page.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7366
1 MR. SCHOER: We object to the Brooklyn Bridge
2 comment.
3 THE COURT: Objection overruled.
4 What do you have against the Brooklyn Bridge?
5 MR. SCHOER: I think the term, trying to sell
6 them the effin Brooklyn Bridge
over here has real
7 connotations and sensational.
8 THE COURT: Overruled.
9 MS. SCOTT: The next one is 1383-E, which is a
10 conversation between, E as in Edward.
11 The conversation between Ron Marshisoto, Richard
12 Pace and George Robbins.
13 THE COURT: One minute.
14 MS. SCOTT: Richard Price is Richard Pace, the
15 same person we call Richard Pollito a salesman of the
16 company.
17 THE COURT: Who is the male voice.
18 MS. SCOTT: The male voice says one word and
19 unintelligible after that. We don't know who it is. It
20 may be Pace, it may be Pace-Pollito.
21 MR. TRABULUS: I object to this on the grounds
22 that --
23 THE COURT: I have to read it first. 24 MR. TRABULUS: I am sorry. 25 (Whereupon, at this time there was a pause in the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7367
1 proceedings.)
2 THE COURT: I will not allow page 2, starting
3 with Ron Marsh, now, who did you ask this to, George
4 Robbins, etcetera, from that point on to the end, I don't
5 know what they are talking about. It is confusing, and
6 prejudicial unduly to Tara Garboski.
7 MR. JENKS: And page 3 with respect to Gordon.
8 MS. SCOTT: We don't object, your Honor.
9 THE COURT: All right, 1383, page 1, and the top
10 three lines of page 2. All right.
11 MR. SCHOER: My only concern with respect to
12 that, and I appreciate your Honor redacting that, but the
13 attribution right before we started, where it says 100
14 percent mailing list, she did say that, because I asked
15 her, she said when a member -- when someone has been
16 nominated from another member, that's a whole different
17 ball game, I believe the jury will believe that he is
18 speaking about
a conversation he had with Ms. Garboski.
19 She is the only supervisor who is a female.
20 MS. SCOTT: Your Honor, that is just not the
21 case. There is no way to draw that conclusion.
22 THE COURT: I will make sure.
23 MS. SCOTT: They may be talking about another 24 salesperson for all you know. 25 THE COURT: This is what we will do. 100 percent
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7368
1 mailing list.
2 MS. SCOTT: It talks about how nominations make
3 it a whole different situation. It is not even an
4 entirely incriminating statement. It talks about yes,
5 there are mailing lists, but there are also nominations to
6 cause a very different selection process to call in.
7 The one word, "she" a person making a statement
8 about what the procedures are, it doesn't mean that it is
9 a supervisor.
10 MR. TRA
BULUS: Look at this one and then look at
11 F, which is the next one, but according to the tape
12 counter marking precedes it. In 1383-F it is Ron Marsh
13 the informants, instructing George Robbins about mailing
14 lists. He is planting the idea in George Robbins mind,
15 and the male voice's mind that he was told about mailing
16 lists. You have to look at this in context. The tape
17 counter on F is 918, on 1383 it is 983. So you have to
18 look at the predecessor which preceded it, which is the
19 government informant telling people whom he is talking to,
20 telling people about mailing lists. It seems the whole
21 thing is unreliable.
22 THE COURT: Does the government wish to play
23 1383-F, for Fox? 24 MS. SCOTT: Yes, we do. 25 If you look at the first page of 1383-E, the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7369
1 fourth statement down, George Robbins' statement, that's
2 the topic of the sentence in this conversation.
3 He says, do you remember what she said yesterday,
4 a nomination card, a person who is actually nominated from
5 another member. That's what they talk about in the
6 conversation. They are not talking about Ron Marsh's
7 comments, and I don't know when before that.
8 THE COURT: I will allow you to put in what I
9 said, the first page and the top parts of the second page
10 of 1383-E, for Easy, but I will redact, notwithstanding
11 the new Bruton case, this is risky, you see the bottom
12 line George Robbins -- we can't do that because it is on
13 tape, right?
14 MS. SCOTT: What are you talking about?
15 THE COURT: The 100 percent mailing list, she
16 will say, what I was going to say is to change it to I
17 haven't told. But it is on a tape.
1
8 MS. SCOTT: Your Honor, it is so speculative that
19 they would believe that this is Tara Garboski. There
20 is --
21 THE COURT: There are other women in the company,
22 not there?
23 MS. SCOTT: Yes, many. 24 THE COURT: All right, overruled. I will allow 25 it.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7370
1 MR. GEDULDIG: Can I ask a question?
2 Mr. Trabulus just brought up a point.
3 If the government is labelling these sections of
4 transcripts and tapes with letters, creating the
5 impression that they are being played, and we are
6 discussing them in a chronological order, and if that's
7 not the case, and if they are taking them, and section C
8 should go where section A is, and they are moving the
9 sections around and they are not in chronological order
10 they are taken out of context.
11 TH
E COURT: That's all right unless it is
12 prejudicial. I see nothing prejudicial about it.
13 Let's take a look at 1383-F.
14 MS. SCOTT: For clarification, you are allowing
15 1333-A, the first paragraph on page 2 of that statement,
16 and the rest from Ron Marsh's statement is all redacted.
17 THE COURT: Yes.
18 MS. SCOTT: Thank you.
19 MR. SCHOER: For clarification, are we taking
20 this portion out of the transcripts that the jury has in
21 front of them.
22 MS. SCOTT: We will have to do it.
23 MR. TRABULUS: They don't have these yet. 24 MR. WHITE: We pulled them out of the book. 25 MR. SCHOER: Yes. Thank you.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7371
1 THE COURT: 1383-F for Fox, let me read it.
2 (Whereupon, at this time there was a pause in the
3 proceedings.)
4 THE COURT: Objection sustaine
d. It is all talk
5 by Marsh. We don't need that here.
6 What else?
7 MS. SCOTT: Finally 1384 is the tape and 1384-A,
8 is the transcript.
9 Again, it is a conversation between Richard Pace
10 and the informant Ron Marshisoto and George Robbins.
11 THE COURT: Let me read it, please.
12 (Whereupon, at this time there was a pause in the
13 proceedings.)
14 THE COURT: I will not let in anything after
15 Richard Pace, you have to be. After that it is Marsh, you
16 are driving home again. The first part is spontaneous
17 apparently. I will allow it. The last entry will be,
18 Richard Pace, you have to be. The rest is excluded.
19 MS. SCOTT: Your Honor, is it possible to take
20 out Ron Marsh's statement and start up with the statement
21 by Robbins, I sleep well, knowing that --
22 THE COURT: No, because I think he is seducing
23 them into some o
f these things. I will let the first 24 five, that's what is going in. 25 MS. SCOTT: Your Honor, the very first statement
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7372
1 of Richard Pace is at a different point in the tape than
2 the later conversation between George Robbins and Ron
3 Marsh.
4 THE COURT: All right.
5 MR. SCHOER: If that's so, the next four
6 attributions, the only person saying it is a scam is
7 Marsh.
8 MS. SCOTT: That's not so. The first line by
9 Robbins --
10 THE COURT: I will allow one, two, three, four,
11 five entries, and say that the first portion was separated
12 in time from the second -- from the latter portions.
13 MR. TRABULUS: I don't want to be too belated
14 about this, but we have transcripts of only portions of
15 this. We don't have here, and I don't have in my head
16 what immediately preceded some of this stuff. So it seems
17 to me, and I know we took up a fair amount of time, but
18 perhaps we ought to take up a little more time, and play
19 for your Honor to hear and all of us to hear about what
20 occurred in the minute before the beginning of each one of
21 these that they plan to play. I think they have the tapes
22 queued up so it will not take long to do that. We will
23 find I believe that this was driven by Mr. Marsh. This is 24 all when Mr. Marsh was there. 25 THE COURT: Don't you have all that? Don't you
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7373
1 have these tapes, the full tapes?
2 MR. TRABULUS: Your Honor, I do have the full
3 tapes, your Honor.
4 THE COURT: I must say I have not had a chance to
5 listen to them, with all the things I have been doing, I
6 haven't bee
n able to focus on it. And had I listened to
7 them, your Honor, your Honor would have had to have heard
8 that portion anyway, because I certainly don't have
9 transcripts of those tapes. I think it is a reasonable
10 thing to do at this time. It will be a total of an extra
11 five or ten minutes.
12 MR. NEVILLE: Wasn't also Robbins considered
13 unreliable because he hadn't worked at the company for
14 long and here he pops up again?
15 THE COURT: Yes.
16 MS. SCOTT: You excluded 1383-C, the one
17 exaggerated tape by Robbins. The rest you let in.
18 THE COURT: That's exactly right. It is a good
19 analysis of what I did. An exaggerated person.
20 MR. NEVILLE: I join in Mr. Trabulus' respectful
21 request to the Court that we hear the preceding portions
22 of the tapes, because Marsh is the common denominator in
23 these tapes. 24 THE COURT: Have yo
u concluded the tape? 25 MS. SCOTT: Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7374
1 THE COURT: There are other tape recordings that
2 we need to play as well.
3 THE COURT: Let's play the other ones until
4 12:30, and we will give the defendants a chance during the
5 lunch hour to listen to the other tapes. And we will
6 conclude it in the afternoon.
7 Ready with the other tapes you have?
8 MS. SCOTT: Your Honor, the defense have had a
9 long time to listen to these tapes. The tapes were made
10 available for at least a year.
11 THE COURT: That's true. I just said that.
12 However, in view of the request, I believe it is a
13 reasonable request. What is the rush? We are taking all
14 this type anyway. You will put on what you have without
15 these. You have other tape recordings?
16 MS. SCOTT: We have oth
er tapes to play, yes.
17 THE COURT: That will fill between now and the
18 lunch hour. During the lunch hour they will listen to the
19 tapes, the leading in portions that they say they want.
20 And we will come back at like a quarter after 1:00 and go
21 over that.
22 MS. SCOTT: One other clarification. Yesterday
23 your Honor admitted several exhibits as pieces of 24 commercial paper. They were copies of checks, and you 25 admitted them as business records. I was to come back and
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7375
1 give you precise list of what those exhibits are. I have
2 that list. There are six of them.
3 One is 13-E, 20-F, 58-A, 39-A, 40-E, and 47-E.
4 THE COURT: All right.
5 MS. SCOTT: Thank you.
6 THE COURT: Let's bring the jury in and go
7 through the rest of the tapes at this time, other than the
8 ones we went through just now.
9 One of the jurors requested to leave at 4:30 this
10 afternoon. I believe we will be able to accommodate that
11 juror.
12 MR. NELSON: Yesterday we heard that there was a
13 statement made with respect to Mr. Rubin. And I ask that
14 there be a limiting instruction that that statement is
15 attributable only to Mr. Rubin and not to the other
16 defendants on trial in this matter.
17 THE COURT: Any objection to that? I don't
18 recall what statement you are referring to?
19 MR. NELSON: A post arrest statement allegedly
20 made by Mr. Rubin when he was being transported from his
21 home to Who's Who Worldwide by Mr. Biegelman and Agent
22 Jordan.
23 THE COURT: What did he say in his statement? 24 MR. NELSON: That there were no nominations or 25 words to that effect.
HARRY RAPAPORT, CSR, CP, CM OFFI
CIAL COURT REPORTER 7376
1 MR. WHITE: He admitted lying about various
2 subjects.
3 THE COURT: It is attributable to him and not the
4 other defendants?
5 MR. WHITE: Yes.
6 MR. NEVILLE: In that instruction I request you
7 state to the jury it was an alleged statement, and if the
8 jury believes it was uttered, that it is only admissible
9 as to Mr. Rubin.
10 THE COURT: Very well.
11 MR. WHITE: Your Honor, I don't know if you need
12 to put it that way. You can say you heard testimony with
13 regard to a statement. That statement is only worded with
14 respect to -- the way Mr. Neville phrased it is that your
15 Honor is perhaps doubting the testimony.
16 THE COURT: He picked up what I said yesterday
17 about something. But I will say the testimony of Rubin
18 offered yesterday.
19 Was this statement made in a car?
20 MR. WHITE: Yes, in the car following his
21 arrest.
22 THE CLERK: Jury entering.
23 (Whereupon, the jury at this time entered the 24 courtroom.) 25 THE COURT: I wished you good morning earlier.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7377
1 Now it is almost time for good afternoon.
2 Good afternoon.
3 Please be seated.
4 I want to thank you very much for your patience.
5 Every time I walked into the jury room I was greeted with
6 smiles and felt very much at home, instead of glares for
7 keeping you waiting, which I might be doing if I were in
8 your place.
9 I explained to you the necessity for holding you
10 up. We are ready to proceed.
11 First of all, I want to tell you that you heard
12 some testimony by Special Agent Jordan about a
13 conversation with Mr. Rubin.
14 This testimo
ny is offered only against Mr. Rubin
15 himself and not any of the other defendants in this case.
16 You may proceed.
17 MR. WHITE: Your Honor, we will continue playing
18 some tapes.
19 THE COURT: One of the jurors wants to leave at
20 4:30. We will accommodate that juror.
21 MR. WHITE: The first tape is Exhibit 1339. The
22 transcript is 1339-A. The date is December 23rd, 1994.
23 The call is to Who's Who Worldwide and Sue Mantell. 24 (Whereupon, at this time there was a pause in the 25 proceedings.)
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7378
1 MR. JENKS: Can't hear it.
2 MR. NELSON: It is not working.
3 (Tape is played.)
4 MR. WHITE: Next is Exhibit 1349. The transcript
5 is 1349-A, for Abel. The date is February 2nd, 1995. The
6 call is to Sterling Who's Who and Scott Matthews.
7 (Tape is play
ed.)
8 MR. WHITE: Next is 1357. The transcript is
9 1357-B, for Baker. The date is December 12th, 1994. The
10 call is to Sterling Who's Who and Barbara McCabe.
11 (Tape is played.)
12 MS. SCOTT: The next is 1364. The transcript is
13 1364-B, and the date is December 23rd, 1994. The call is
14 to Who's Who Worldwide and Greg Muller.
15 (Tape is played.)
16 MR. WHITE: Next is 1373. The transcript is
17 1373-A. The date is March 2nd, 1995. The call is to
18 Who's Who Worldwide and Alan Saffer.
19 (Tape is played.)
20 MR. WHITE: The next is 1301. The transcript is
21 1301-C, for Charley. The call is to Who's Who and
22 Madeline Bailey.
23 (Tape is played.) 24 MR. WHITE: The next is the same tape, 1301, the 25 transcript is 1301-D, for Dog. It is the same date and
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7379
1 same salesperson.
2 (Tape is played.)
3 MR. WHITE: Next is 1305. The transcript is
4 1305-B. The call is to Who's Who Worldwide, and the
5 date -- I am sorry -- let me start over again. 1305-B,
6 the date is September 6th, 1994, the call is to Who's Who
7 Worldwide and Roseanne Patton.
8 (Tape is played.)
9 MR. WHITE: Next on the same tape is transcript
10 1305-D. The date is the same, and the salesperson is the
11 same.
12 (Tape is played.)
13 MR. WHITE: 1307 is the exhibit, 1307-A is the
14 transcript, the date is October 24th, 1994. The call is
15 to Sterling Who's Who and Scott Matthews.
16 (Tape is played.)
17 MR. WHITE: Next is the same exhibit. The
18 transcript is 1307-D, for Dog, and the date and everything
19 else is the same.
20 (Tape is played.)
21 MR. WHITE: Next is 1309. The transcript is
22 1
309-C, for Charley. And the date is October 27th, 1994.
23 The call is to Sterling Who's Who and Andrea Franklin. 24 (Tape is played.) 25 MR. SCHOER: This is 1309-A.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7380
1 MR. WHITE: Yes, I read it incorrectly. It is
2 1309-A. And I will back it up to the beginning. I will
3 start it again from the beginning.
4 (Tape is played.)
5 MR. WHITE: Next is the same tape. The
6 transcript is 1309-C, for Charley. The same date and same
7 participants.
8 (Tape is played.)
9 MR. WHITE: The next is 1320. The transcript is
10 1320-B. The date is November 4th, 1994. The call is to
11 Sterling Who's Who and Patricia Brent.
12 (Tape is played.)
13 MR. WHITE: Next is 1329. The transcript is
14 1329-B. The date is December 12th, 1994. The call is to
15 Sterling Who's Who and M
ark Johnson.
16 (Tape is played.)
17 MR. WHITE: The next is 1331, the transcript is
18 1331-A, the date is September 14th, 1994. The call is to
19 Sterling Who's Who and Scott Matthews.
20 (Tape is played.)
21 MR. NEVILLE: Your Honor --
22 THE COURT: Just one minute, please.
23 (Whereupon, at this time there was a pause in the 24 proceedings.) 25 THE COURT: Hold it for a minute, please.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7381
1 (Whereupon, at this time there was a pause in the
2 proceedings.)
3 THE COURT: Sorry to keep you waiting.
4 Yes, Mr. Neville.
5 MR. NEVILLE: I wanted to clarify, and I am sure
6 it was inadvertent. But some of the transcripts say Scott
7 Matthews, and some in the new series says just Scott. I
8 don't want the jury to be excused.
9 THE COURT: It obviously is not
Scott Michaelson
10 because it is Sterling to begin with; is that right?
11 MR. NEVILLE: Right.
12 THE COURT: Members of the jury, did I get that
13 across?
14 (The jury answers in the affirmative.)
15 THE COURT: All right. Let's go.
16 (Tape is played.)
17 MR. WHITE: On the same exhibit we will also pay
18 1331-B, for Baker, the same date and the same
19 participant.
20 (Tape is played.)
21 MR. WHITE: Next is Exhibit 1334. The transcript
22 is 1334-B, for Baker. The date is December 19th, 1994.
23 And the call is to Who's Who Worldwide and Jill Barnes. 24 (Tape is played.) 25 MR. WHITE: The same exhibit, we are going to
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7382
1 play 1334-D, for Dog, and not B for Bake.
2 (Tape is played.)
3 MR. WHITE: Next is 1336. The transcript is
4 1336-B,
for Baker. The date is December 20th, 1994. The
5 call is to Who's Who Worldwide and John Stevens.
6 (Tape is played.)
7 MR. WHITE: Next is the same exhibit, the
8 transcript is 1336-C, for Charley. And the dates and the
9 participants are the same.
10 (Tape is played.)
11 MR. WHITE: Next is Exhibit 1340. The transcript
12 is 1340-B, for Baker. The date is December 28th, 1994.
13 The call is to Who's Who Worldwide and Marilyn Pierce.
14 (Tape is played.)
15 MR. WHITE: Also on that exhibit we will pay
16 1340-A, for Abel, same date and participant.
17 (Tape is played.)
18 MR. WHITE: Next is Exhibit 1342. The transcript
19 is 1342-A, for Abel. The date is January 3rd, 1995. The
20 call is to Sterling Who's Who and Barbara McCabe.
21 (Tape is played.)
22 MR. WHITE: The next is 1354. The transcript is
23 1354-A, or Abel. The date is December 1s
t, 1994. The 24 call is to Sterling Who's Who and Anthony Myers. 25 (Tape is played.)
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7383
1 MR. WHITE: Next on the same exhibit is 1354-B,
2 for Baker, the same date and participants.
3 (Tape is played.)
4 MR. WHITE: The next is 1356. The transcript is
5 1356-A, for Abel. The date is December 8th, 1994. The
6 call is to Sterling Who's Who and Mark Johnson.
7 (Tape is played.)
8 MR. WHITE: The next is 1363. The transcript is
9 1363-A, for Abel. The date is December 22nd, 1994. The
10 call is to Sterling Who's Who and Cathy Brady.
11 (Tape is played.)
12 MR. WHITE: Also on the same exhibit, is 1363-B,
13 for Baker, the same date and participants.
14 (Tape is played.)
15 MR. WHITE: Next is 1366. The tape -- transcript
16 is transcript 1366-A, the date is January
24th, 1995. The
17 call is to Who's Who Worldwide and Sue Mantell.
18 (Tape is played.)
19 MR. WHITE: On the same exhibit is 1366-B, for
20 Baker. It is the same date and participants.
21 (Tape is played.)
22 MR. WHITE: Next is 1369. The transcript is
23 1369-A, for Abel. The date is January 26th, 1995. The 24 call was to Sterling Who's Who and Michael Cain, C A I N. 25 (Tape is played.)
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7384
1 MR. WHITE: I will give it another try.
2 (Tape is played.)
3 MR. WHITE: I think it might have been
4 unintelligible with the speed varied.
5 We will try on that tape also 1369-B, for Baker.
6 (Tape is played.)
7 MR. WHITE: The next one is 1376. The transcript
8 is 1376-A, for Abel. The date is March 9th, 1995. The
9 call is to Sterling Who's Who and to Sam Christopher.
10 (Tape is played.)
11 MR. WHITE: Also on that date is 1376-B, for
12 Baker. Same date and same participants.
13 (Tape is played.)
14 THE COURT: I think we will take a recess at this
15 time.
16 Members of the jury we will recess until 1:45, 15
17 minutes later, because I have to discuss several things
18 with the lawyers. I don't want to keep you waiting
19 unnecessarily.
20 Please do not discuss the case among yourselves
21 or anyone else. Keep an open mind. Come to no
22 conclusions. We will recess until 1:45. Have a nice
23 lunch. 24 (Whereupon, at this time the jury left the 25 courtroom.)
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7385
1 THE COURT: Other than the tapes that counsel for
2 the defendants want to listen to, the other portions of
3 the tapes, the ones we discussed this mor
ning, how many
4 other tapes do you have?
5 MR. WHITE: Maybe half a dozen, that's all.
6 THE COURT: In other words, within a half an hour
7 you will be through with them?
8 MR. WHITE: Yes. And I have a one-page or a
9 two-page stipulation to read.
10 THE COURT: That's it, other than the tapes we
11 discussed this morning?
12 MR. WHITE: Yes. I believe that's correct.
13 THE COURT: All right.
14 What I think I will do is -- what about the
15 defense? Are you ready to proceed today, or do you want
16 to go over until tomorrow?
17 MR. TRABULUS: We would certainly want to go over
18 until tomorrow -- when you say ready to proceed, you mean
19 with the Rule 29 motion?
20 THE COURT: That we will have this afternoon. I
21 may let the jury go until Wednesday morning.
22 MR. TRABULUS: That's probably a good idea.
23 THE COURT: See you at 1:30
. You will be here at 24 1:30. 25 (Luncheon Recess.)
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7386
1 A F T E R N O O N S E S S I O N.
2 THE COURT: Where are the rest of the defendants
3 and the lawyers?
4 Will somebody go out and take a look for them,
5 please.
6 Have you had an opportunity to hear the tapes?
7 MR. TRABULUS: Your Honor, we are nearly
8 finished, we are on the very last one. With regard to the
9 other ones, there is only one I would have an additional
10 comment and bring forth additional grounds for exclusion,
11 but we were listening to the very last one.
12 THE COURT: Why don't you finish the last one.
13 How long will that take?
14 MR. TRABULUS: Two minutes at most.
15 THE COURT: Go ahead.
16 (Pause in proceedings.)
17 MR. DUNN: Your Honor, just one minute, please.
18 (Pause in proceedings.)
19 THE COURT: Now that defense counsel have had an
20 opportunity to again go over the tapes, I assume they had
21 the opportunity to go over it during the months they had
22 the tapes, what, if anything, do you have to say?
23 MR. DUNN: I think it is the position of the 24 defense in the words that are leading up to what the 25 government was to introduce, it seems that Mr. Marsh's
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7387
1 leading on and creating an atmosphere to set people up
2 what to say. In discussion with a couple attorneys we
3 think it might be advisable for the Court to listen to a
4 couple of minutes that precedes this.
5 THE COURT: What part?
6 MR. TRABULUS: I think what we just heard. It is
7 on 1384-A, Your Honor. 1384-A is in two sections. You
8 see some stars there. It precede
s the second section.
9 THE COURT: 1384-A is the last tape.
10 MR. TRABULUS: The last one, Your Honor. I think
11 Your Honor indicated that it would come up to the point
12 where Mr. Marsh says doesn't it.
13 You will hear Mr. Marsh starts to say that this
14 -- he's saying that I doubt very much the real Who's Who
15 Marquis does this. He says I was told this was the
16 biggest and I doubt that that was the oldest. I mean,
17 he's telling them that things that they may have been told
18 are false, and then after that you hear one of them well,
19 we're scamming somebody.
20 MR. NEVILLE: Your Honor, Mr. Marsh's voice is
21 the strongest of the voices because the mike is on him and
22 he has a very gruff way about it and he's leading this
23 conversation. 24 MR. WHITE: Since we are all giving our 25 commentary you will notice Mr. Robins was the first
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7388
1 talking about we're ripping people off.
2 MR. TRABULUS: After he's been told that we've
3 been lied to.
4 THE COURT: Okay.
5 MR. WHITE: I'm not sure how far back you want to
6 play it.
7 MR. TRABULUS: It was about two minutes ago.
8 MR. WHITE: It doesn't help me.
9 MR. TRABULUS: I thought you were looking at the
10 counter.
11 MR. WHITE: Well, let's play what immediately
12 precedes it and then we'll go back. Is that what you
13 want?
14 MR. TRABULUS: I would like to play like the two
15 or three minutes that preceded the second part of 1384-A,
16 the three minutes.
17 MR. WHITE: Like I said the machine doesn't go in
18 minutes.
19 MR. TRABULUS: Well, how many numbers are in a
20 minute? That should be standard.
21 MR. WHITE: No, that'
s not standard.
22 MR. TRABULUS: The speed that it's set at should
23 also be standard. 24 MR. WHITE: That's also not the case. 25 THE COURT: Counsel, play it. Go back a period
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7389
1 of time and play it, will you.
2 MR. WHITE: I don't know how far back, Your
3 Honor.
4 THE COURT: They'll tell you if they want it back
5 further. Start it off.
6 MR. WHITE: Okay.
7 (Audiotape played.)
8 (Start and stop.)
9 THE COURT: Stop it.
10 Do you want it back more?
11 MR. TRABULUS: A little bit more.
12 MR. WHITE: A little bit more.
13 THE COURT: I don't know what the calibration is
14 on that machine but put it back for some period of time.
15 (Audiotape played.)
16 (Start and stop.)
17 THE COURT: Is that Mr. Marsh?
18 MR. WHITE: No, Yo
ur Honor, that's Mr. Pace.
19 THE COURT: When Mr. Marsh appears, raise your
20 hands, will you.
21 MR. WHITE: So far all he has said was "yep."
22 But I'll raise my hand.
23 THE COURT: He wasn't very loud when he said 24 that. 25 (Audiotape played.)
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7390
1 (Start and stop.)
2 THE COURT: Is the next item the one you want to
3 play?
4 MR. WHITE: No, Your Honor. The last thing we
5 just heard is what we want to play.
6 MR. TRABULUS: The very last two lines.
7 THE COURT: I find nothing overly suggestive
8 about this conversation, nothing at all. As a matter of
9 fact, one of the other people said "not the original, not
10 the biggest," someone else said something like that. I
11 don't find that that is suggestive or overly enticing or
12 entrapping or sed
ucing at all.
13 Anything else?
14 MR. TRABULUS: With regard to the first two lines
15 on 1342-A, there the situation is a little bit different.
16 It's the context. If you listen to what precedes that,
17 you'll hear this guy Pace is complaining when he's kind of
18 kept in the dark and he says he can't get a straight
19 answer. So he's not saying that he believes he's scamming
20 and bullshiting, the implication is that he doesn't know.
21 I mean, I leave that to other counsel to make a comment.
22 Read in isolation, that is misleading.
23 THE COURT: I disagree. I'll overrule your 24 objections. I'll let them play it as I originally said. 25 Anything else in the tapes?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7391
1 MR. TRABULUS: With regard to 1382-A, they wait
2 for Tara to leave, wait for a supervisor to leave and I
3 believe it is Marsh that initiates a game where he
4 pretends to make a phone call to somebody else, gets to
5 say parts of the pitch and then they start extemporizing.
6 THE COURT: I overrule your objection. You
7 stated for the record repeatedly most of them your
8 objections. I'm overruling to the extent that I'm doing
9 that, I've redacted certain portions as I've previously
10 stated.
11 We're ready to go and bring in the jury.
12 MR. SCHOER: Judge, does the government have the
13 new transcripts? Might I look at them before they hand
14 them to the jury so they conform with Your Honor's
15 determination.
16 THE COURT: I don't know if they had an
17 opportunity to redact them.
18 MR. WHITE: Yes, we did.
19 THE COURT: Show them to Mr. Schoer.
20 MR. NEVILLE: Your Honor, how are we handling the
21 fact that Mr. Marsh is the undercover?
22 THE COURT: I'll tell them that.
23 (Jury enters.) 24 THE COURT: Good afternoon, members of the jury, 25 and I do mean afternoon. Have a seat.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7392
1 Now that you've had a chance to have a large
2 sumptuous lunch, a banquet perhaps, I certainly
3 underestimated what we had to do and the lawyers in this
4 case have been very diligent. They are not responsible in
5 any way for any of the waiting, I am. So I want you to
6 know that.
7 All right. Let's proceed.
8 MR. WHITE: Your Honor, again we'll continue with
9 some tapes. The first one is 1390-D, rather 1390. The
10 transcript is 1390-D, for Dog.
11 The date is December 23, 1994, and it is a
12 conversation recorded by an informant at Who's Who
13 Worldwide.
14 (Audiotape played.)
15 (Start and stop.)
16 MR. WHITE: Next will be 1396. The transcript is
17 1396-A, for Able. The date is January 6, 1995.
18 It's a conversation recorded by an informant at
19 Who's Who Worldwide.
20 (Audiotape played.)
21 (Start and stop.)
22 MR. WHITE: Next is 1397. The transcript is
23 1397-A, for Able. 24 The date is January 11, 1995, and this was 25 recorded by an informant at Who's Who Worldwide.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7393
1 (Audiotape played.)
2 (Start and stop.)
3 MR. LEE: At this pause I have an application as
4 to the name in the Exhibit 1397-A, it says Laura. That is
5 not Laura Weitz here on trial.
6 THE COURT: Is that correct, Mr. White?
7 MR. WHITE: I don't know who the Laura is.
8 THE COURT: Well, it says this is her first day.
9 MR. WHITE: That's what I mean. I'm assuming
10 that is not the defendant.
11 THE COURT: Well, it's not the defendant Laura
12 Weitz; is that correct?
13 MR. WHITE: I don't believe so, no.
14 THE COURT: Members of the jury, it's not the
15 defendant Laura Weitz.
16 (Audiotape played.)
17 (Start and stop.)
18 MR. WHITE: Next is 14-01. The date is February
19 9, 1995. I'm sorry, the transcript is 14-01-A, for Able.
20 Recorded by an informant at Who's Who Worldwide.
21 (Audiotape played.)
22 (Start and stop.)
23 MR. WHITE: I'm just fast forwarding to the next 24 part of the transcript. 25 (Start and stop.)
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7394
1 MR. WHITE: Next is 14-03. The transcript is
2 14-03-A, the second part. We played the first part of
3 14-03-A. We'll be picking up in the middle of page 2 in
4 that transcript.
5 The date is February 15, 1995, and recorded by an
6 informant at Who's Who Worldwide.
7 (Audiotape played.)
8 (Start and stop.)
9 MR. WHITE: Your Honor, the next two tapes that
10 we have are the ones that we have the transcripts for the
11 jury that wasn't previously in their books.
12 THE COURT: The ones we discussed earlier?
13 MR. WHITE: Yes.
14 THE COURT: Very well.
15 MR. NEVILLE: Your Honor, before we start the
16 tape, will Your Honor discuss this?
17 THE COURT: Yes.
18 Are you ready to go?
19 MR. WHITE: Yes.
20 THE COURT: What tape will you start with?
21 MR. WHITE: 1382.
22 THE COURT: Members of the jury, do you have
23 1382-A? That's the transcript, correct, Mr. White? 24 MR. WHITE: Yes. 25 THE COURT: Members of the jury, I instruct you
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 73
95
1 that on this tape there's a person named Ron Marsh. He is
2 a confidential informant that obtained employment with
3 Who's Who Worldwide Enterprises. Bear in mind he is a
4 confidential informant who is tape-recording this.
5 Also this evidence is only offered against the
6 defendant Who's Who Worldwide Enterprises, Inc., not
7 against any other defendant.
8 In addition, you'll see the three asterisks which
9 show that there's additional tape that was made that was
10 not set forth in this transcript. So it doesn't follow
11 consecutively. The first two entries are together and
12 then there's a space, a period of time, and then the last
13 entry.
14 You may proceed.
15 MR. NELSON: Your Honor, I also asked for an
16 instruction as it related to Mr. Osman and his recordings.
17 THE COURT: That he was not employed at the
18 time?
19 MR. NELSON: That's correct.
20 THE COURT: I also instruct you at the time that
21 these conversations were recorded, the defendant Oral
22 Frank Osman, also known as Frank Martin, was not employed
23 by the defendant Who's Who Worldwide Enterprises. 24 You may proceed. 25 MR. WHITE: We'll now play the first part of
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7396
1 1382-A.
2 (Audiotape played.)
3 (Start and stop.)
4 MR. WHITE: The next tape we'll play is 1383.
5 THE COURT: You'll not play the second part of
6 1382-A, for Able?
7 MR. WHITE: I thought Your Honor's instructions
8 were to play them separately. I'll go ahead, if that's
9 okay.
10 THE COURT: I instructed the jury that they would
11 be taken at a separate time, so I think you can play it
12 now.
13 MR. WHITE: Okay.
14 (A
udiotape played.)
15 (Start and stop.)
16 MR. WHITE: This will be the second part of
17 1382-A.
18 THE COURT: Taken at a different time, members of
19 the jury.
20 (Start and stop.)
21 MR. WHITE: Now we'll go to 1383. The transcript
22 is 1383-A, as in Able.
23 THE COURT: I have 1383-B, for Baker. Is that 24 wrong? 25 MR. WHITE: There's a series of 1383's, Your
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7397
1 Honor. Do you want me to hand up the new set we've
2 prepared at lunchtime?
3 THE COURT: Well, we didn't discuss 1383-A, for
4 Able, correct?
5 MR. WHITE: That's correct, because if you look
6 at participants, it wasn't in issue.
7 THE COURT: Okay. Then you'll play that.
8 Go ahead.
9 Here again Ron Marsh is a confidential informant
10 who was employed and making the ta
pe-recording.
11 MR. WHITE: Your Honor, do you have 1383-A or do
12 you need a copy of it?
13 THE COURT: I have it.
14 (Audiotape played.)
15 (Start and stop.)
16 THE COURT: What's happening, Mr. White?
17 MR. WHITE: We're just trying to find the right
18 space in the course of all the changes we've made.
19 (Pause in proceedings.)
20 MR. WHITE: Now we're ready to go on with 1383-A.
21 (Audiotape played.)
22 (Start and stop.)
23 MR. WHITE: Your Honor, the next one is one, if 24 the jury can remove its earphone, we have to forward it to 25 the right place in light of our discussion this morning.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7398
1 THE COURT: Okay.
2 MR. NEVILLE: Your Honor, I'm sure that the
3 earphones are completely off, but sometimes you can hear
4 it from a distance.
5 THE COURT: I think everybody ought to take them
6 off because you can hear these things. I've excluded
7 testimony, rather this tape-recording.
8 MR. WHITE: Now we have it set.
9 THE COURT: Before you do that, I'm again
10 instructing the jury in this tape-recording Ron Marsh is a
11 confidential informant who obtained employment with Who's
12 Who Worldwide.
13 It's offered only against the corporation Who's
14 Who Worldwide Enterprises and the time that this was made
15 the defendant Osman, also known as Frank Martin, was not
16 an employee at Who's Who Worldwide.
17 You may proceed.
18 (Audiotape played.)
19 (Start and stop.)
20 MR. WHITE: Next is the same tape 1383. Now
21 we'll go to the transcript which is 1383-D, as in Dog.
22 THE COURT: You are not going to C as in
23 Charlie? 24 MR. WHITE: No, Your Honor. 25 THE COURT: Oka
y.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7399
1 Again, Ron Marsh is the confidential informant
2 and the defendant Osman, Frank Martin, was not employed at
3 the time. The evidence is only offered against the
4 corporation Who's Who Worldwide Enterprises.
5 MR. WHITE: I'm sorry, I wonder if the jury could
6 take their earphones off. The number is off on the
7 counter a little. I want to make sure we start at the
8 right place.
9 Okay. Now we've got it set.
10 THE COURT: This is 1383-D, for Dog.
11 MR. WHITE: Yes.
12 Your Honor, I think we better follow the same
13 procedure to make sure we start at the same place.
14 THE COURT: Where are you going now?
15 MR. WHITE: 1383-3, as in Echo.
16 Now we're set.
17 THE COURT: Again, Ron Marsh is a confidential
18 informant. The evidence is offered against
Who's Who
19 Worldwide Enterprises and the defendant Osman, also known
20 as Frank Martin, was not employed at the time.
21 (Audiotape played.)
22 (Start and stop.)
23 MR. WHITE: Your Honor, the next one is 1384. 24 The transcript is 1384-A. 25 Once again, I think we better make sure it is
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7400
1 cued up to the right point.
2 (Audiotape played.)
3 (Start and stop.)
4 MR. NEVILLE: Your Honor, this again is Ron
5 Marsh.
6 THE COURT: Yes. This next tape-recording
7 involves Ron Marsh, the confidential informant.
8 Wait a minute. It involves Ron Marsh, the
9 confidential informant. The evidence is only offered
10 against the defendant Who's Who Worldwide Enterprises, and
11 the defendant Osman, also known as Frank Martin, was not
12 employed at the time.
13 You may proceed.
14 MR. WHITE: I still didn't cue it up exactly
15 here.
16 THE COURT: Oh, okay.
17 Also there are two segments on this transcript.
18 There are different times. In other words, you see the
19 three asterisks which indicate that there was a second
20 section which was recorded at a different time than the
21 first section, not consecutively.
22 MR. WHITE: Now, Your Honor, we'll play the first
23 excerpt on 1384-A. 24 (Audiotape played.) 25 (Start and stop.)
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7401
1 MR. WHITE: The next one we'll play is the second
2 entry on 1384-A, and again, we'll have to make sure it is
3 cued to the right part first.
4 MR. NEVILLE: Your Honor, may we approach on that
5 last tape?
6 THE COURT: No. You may play the tape first and
7 then you
may approach.
8 MR. WHITE: Your Honor, maybe if Mr. Neville
9 wants to approach you should do this. I have a question
10 how to do this.
11 THE COURT: All right. Come up.
12 (Side bar.)
13 MR. NEVILLE: Your Honor, I could be mistaken,
14 but I'm referring to 1384-A, where the first attribution
15 to Richard Pace, he makes a statement. Immediately
16 following that I heard Ron Marsh's voice, something about
17 scamming and bullshit from Ron Marsh.
18 THE COURT: I heard a voice after that.
19 MR. WHITE: He repeated what he said.
20 THE COURT: That was not on the tape, on the
21 transcript.
22 I don't know what you want to do about that.
23 MR. WHITE: I think, Your Honor, it's apparent 24 that he repeated what was said. 25 THE COURT: If you want, I will have it run and
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 74
02
1 just play as to Pace, but I don't think it will help any
2 because they heard it. I don't know how prejudicial it
3 is. Frankly, I heard a voice and I couldn't make it out
4 myself.
5 MR. NEVILLE: I respectfully believe that it was
6 Ron Marsh.
7 THE COURT: What do you want me to do?
8 MR. NEVILLE: I would like the Court explain to
9 the jury that there was an attribution read immediately
10 preceding what Pace said and it was Ron Marsh the
11 informant.
12 MR. WHITE: That's fine.
13 MR. NEVILLE: Judge, you know, let it go.
14 MR. GEDULDIG: Judge, there was a tape played
15 from their packet we're just going through now with
16 Waldon and he talks in that tape about the costs of
17 mailing lists and that was a statement he makes that was
18 attributable to him and not the other defendants in the
19 case. I would like an instru
ction.
20 THE COURT: Very well.
21 MR. DUNN: Your Honor, I know how Your Honor will
22 rule but I would like to object to that. I think the jury
23 knows what applies to who and I think it is just 24 highlighting Mr. Rubin in the case. 25 THE COURT: No, I'll give the request.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7403
1 (End side bar.)
2 MR. WHITE: I still need a moment.
3 THE COURT: While you do that I will instruct the
4 jury that there was a tape-recording with the voice of
5 Steve Rubin. That evidence was offered against Steve
6 Rubin and not the other defendants, in addition to the
7 corporation Who's Who Worldwide Enterprises.
8 MR. WHITE: Okay. Now we're ready.
9 THE COURT: This is 1384-A, for Able.
10 MR. WHITE: Right, the second part of that one.
11 (Audiotape played.)
12 (Start and stop.
)
13 MR. WHITE: Your Honor, that's it for the tapes.
14 THE COURT: That's the end. You've concluded all
15 the tape-recordings?
16 MR. WHITE: All the ones the government wishes to
17 play. I'm sure everyone is glad for that.
18 I have a stipulation I want to read. A
19 stipulation between the government and Mr. Trabulus.
20 It reads as follows: "It is hereby stipulated
21 and agreed by and between Ronald G. White, Assistant
22 United States Attorney for the Eastern District of New
23 York." 24 THE COURT: You have to go slow, Mr. White. 25 MR. WHITE: Sorry. I'll start again.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7404
1 "It is hereby stipulated and agreed by and
2 between Ronald G. White, Assistant United States
3 Attorney --"
4 THE COURT: Before you go any further, a
5 stipulation is an agreement b
etween the government in this
6 case and defendant Gordon, that the following facts are
7 true or agreed upon.
8 Okay.
9 MR. WHITE: Stipulation between myself and I'm
10 reading again "counsel for the defendant listed below,
11 that if called to testify at trial, document custodians of
12 NABANCO and American Express would testify that, one,
13 between approximately April 1992 and December 1994,
14 purchase was made by customers of Who's Who Worldwide by
15 Visa or Mastercard credit cards were credited by NABANCO,
16 the credit card clearing company, to Who's Who Worldwide's
17 bank account number 118-01619-5, at European American
18 Bank."
19 Paragraph two.
20 "Between approximately April 1993 and March
21 1994, purchases made by customers of Who's Who Worldwide
22 by American Express credit cards were credited by American
23 Express to Who's Who Wo
rldwide's bank account number 24 2-021-62514-9 at National Westminster Bank." 25 It is dated today and it is signed by myself and
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7405
1 Mr. Trabulus on behalf of Mr. Gordon.
2 MR. SCHOER: Judge, may we approach with respect
3 to that stipulation?
4 THE COURT: Very well.
5 (Side bar.)
6 MR. SCHOER: Judge, I never saw that stipulation
7 before and I don't think any other counsel except
8 Mr. Trabulus saw it and what I'm fearful based on that
9 stipulation is that it implies that for a period of time
10 at least after March of 1994, that Who's Who Worldwide
11 didn't have authority to take credit cards and I think
12 that we have through cross-examination raised the issue
13 that their credit card authorization was not cancelled and
14 that stipulation seems to imply it was when
it wasn't in
15 fact cancelled as far as I understand or know.
16 THE COURT: I didn't hear that in the
17 stipulation.
18 MR. SCHOER: I think the government could argue
19 based on the stipulation that the only proof is that the
20 credit cards were being used only during certain periods
21 of time which don't cover the whole time of the
22 indictment.
23 THE COURT: Why would the government do that? 24 MR. WHITE: Besides, some of our customers 25 charged things after that period.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7406
1 THE COURT: Why would the government want to do
2 that?
3 MR. SCHOER: They might want to argue -- we're
4 going to argue there weren't sufficient chargebacks for
5 there to be a cancellation of the credit card. I think
6 that's in the record, the credit card authority. And I
7 d
on't want the government to be able to say there was that
8 when it didn't happen based on that stipulation.
9 THE COURT: Is the government going to do
10 anything like that?
11 MR. WHITE: No. Your Honor the only reason we
12 discussed that, the only reason we put in the stipulation,
13 it relates to the money laundering accounts, those two
14 accounts I mentioned, customer's credits get credited
15 there and it goes out to the other companies, that's the
16 only reason.
17 MR. TRABULUS: Maybe Mr. Schoer's concern can be
18 alleviated by an instruction that no inference is to be
19 drawn from the stipulation concerning the application of
20 any credit card charges at any other period of time other
21 than the period covered by the stipulation, something
22 along those lines.
23 THE COURT: I don't understand this. 24 MR. SCHOER: I'm more than satisfied if Mr.
White 25 made the presentation if we make the argument based upon
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7407
1 what I believe is in the record at this point, that if
2 there were excess chargebacks then credit card
3 authorizations would have been cancelled and that's
4 evidence that people were satisfied because there weren't
5 those chargebacks. That as long as he says he will not
6 get up on rebuttal and make an argument there is no
7 evidence.
8 THE COURT: So you want to show there were no
9 chargebacks.
10 MR. TRABULUS: There were chargebacks but not a
11 lot.
12 MR. SCHOER: I want to show and I think it's in
13 the record, I want to argue in my summation there wasn't
14 sufficient chargebacks for them to lose their
15 authorization and therefore that is evidence that people
16 were satisfied with the
product.
17 THE COURT: I understand. Will you argue to the
18 contrary?
19 MR. WHITE: No, I'm really not clear what
20 Mr. Schoer is trying to say but it seems to me that
21 problem can be addressed by saying something like
22 Mr. Trabulus said, this just covers, the stipulation just
23 covers this particular period and they are not to draw any 24 other inference to it and only relates to the money 25 laundering count. I don't want to limit what I can
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7408
1 potentially say in rebuttal.
2 (End side bar.)
3 THE COURT: Members of the jury, this stipulation
4 you've just heard which was read by Mr. White relates only
5 to the money laundering count and only with respect to the
6 periods of time involved in this stipulation.
7 You may proceed, Mr. White.
8 MR. WHITE: May
I have just one moment?
9 THE COURT: Yes.
10 MR. WHITE: Your Honor, the government rests.
11 THE COURT: All right. Members of the jury, the
12 government has rested. I have to speak to the lawyers
13 about certain points of law which are not your
14 consideration. It's likely to take a long time to do that
15 so I'm not going to keep you here any longer today.
16 We're going to recess until 9:30 tomorrow
17 morning.
18 In the meantime, please continue not to discuss
19 this case either among yourselves or with anyone else.
20 Keep an open mind. Come to no conclusions until the
21 entire case has been concluded, the summations are over,
22 my instructions to you on the law have been given and
23 they'll be quite lengthy, and you're in that jury room 24 discussing the case for the first time between you 25 listening to each other.
HARRY RAPAP
ORT, CSR, CP, CM OFFICIAL COURT REPORTER 7409
1 We're going to recess until 9:30 tomorrow
2 morning.
3 Have a nice afternoon and evening. We'll see you
4 then.
5 (Jury exits.)
6 THE COURT: We'll take a ten-minute recess and
7 we'll hear the motions.
8 (Recess taken.)
9 THE COURT: All right. Motions at the end of the
10 government's case.
11 MR. JENKS: Judge, before we begin motions, the
12 Rule 29 motion, I'm going to act as the spokesperson, I've
13 nominated myself to be the spokesperson for all defense
14 counsel as far as the defense case will go.
15 THE COURT: Spokesperson in what regard?
16 MR. JENKS: I'm going to speak for counsel.
17 THE COURT: On the motion?
18 MR. JENKS: No, on this application.
19 THE COURT: Oh.
20 MR. JENKS: Quite frankly, all the defense
21 counsel here were taken off guard
with Mr. White's
22 statement late last week that he would conclude the
23 government's case at the end of this week. As a result, 24 to be quite honest with you, we're having difficulty 25 pulling together some of the witnesses and I know
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7410
1 Mr. Wallenstein is having some difficulty with his defense
2 case and Mr. Trabulus is having some difficulty with his.
3 What we've discussed at the break and what
4 counsel have put together, we want to make a joint
5 application and that is to take a day off either tomorrow
6 or Thursday. I realize the jury has been home, has been
7 sent home for tomorrow.
8 THE COURT: You should have let me know before,
9 but I guess you didn't know.
10 MR. JENKS: We didn't know, Your Honor. It just
11 came up at the break and frankly we're scrambling for
12 witnesses and tapes. We, frankly, thought the case would
13 go much longer.
14 What counsel proposed we either should take a day
15 off tomorrow, allow us to put the defense case in Thursday
16 and have a full day Thursday or bring us here tomorrow and
17 then we'll take Thursday off and we'll come back Monday
18 and we'll be able to put on the defense case and go into
19 summations and charge. It is just that tomorrow we'll be
20 dragging feet and that's the way it appears at this
21 point. We're simply not ready to go forward.
22 THE COURT: You can't get any of your witnesses
23 ready for tomorrow? 24 MR. JENKS: I know Mr. Nelson and Mr. Schoer and 25 I know Mr. Trabulus can play some tapes they want to
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7411
1 play. But I think maybe Mr. Schoer has an hour's worth of
2 tape
s, Mr. Nelson has about a half-hour and I don't know
3 about Mr. Trabulus. That will not fill up the day.
4 MR. TRABULUS: There may be some overlap but mine
5 will be an hour or two. I have no witnesses available
6 tomorrow.
7 THE COURT: Since we let the jury go -- Anna,
8 would you get Mary Ellen, please. The only way we can
9 take off tomorrow is to communicate with the jurors
10 individually which is a big job or have them come in and
11 send them home.
12 MR. WALLENSTEIN: Suppose we take the morning to
13 fill the morning. If we break tomorrow until Monday
14 morning I think that will resolve all the issues. I
15 realize that is some dead time there but we, frankly,
16 could use it.
17 MR. TRABULUS: That would be fine with me. I
18 have to be here tomorrow because we have some documents
19 delivered pursuant to subpoenas.
20 THE COURT: So what yo
u want is hold session
21 tomorrow, have all the tape-recordings you want to play
22 tomorrow morning and break and not come back Thursday but
23 come back Monday instead. 24 MR. WHITE: That's correct. 25 MR. TRABULUS: That's correct.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7412
1 THE COURT: I have no objection to that. Do you,
2 Mr. White?
3 MR. WHITE: No, Your Honor. I have two comments,
4 though. First of all, not that it makes that much of a
5 difference now that we're in the situation. My
6 recollection is not last week but the week before last the
7 jurors asked when the trial was going to conclude and I
8 told you then that the government would rest sometime the
9 week of March 9th which is this week.
10 THE COURT: I recall. We didn't believe you
11 though.
12 MR. WHITE: I always keep my word, Your Ho
nor.
13 THE COURT: I don't mean that you would
14 consciously tell an untruth, of course not, but we thought
15 you were being optimistic.
16 MR. WHITE: I don't have an objection to the
17 procedure that was described.
18 THE COURT: All right.
19 MR. WHITE: I would ask if we are going to take
20 such a long break if I can get maybe the names if not just
21 the witnesses on Monday but Tuesday as well because
22 otherwise I'm going to be scrambling.
23 THE COURT: I think that's fair. 24 MR. WHITE: Okay. 25 THE COURT: You give the names of the witnesses
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7413
1 tomorrow.
2 MR. TRABULUS: Yes, sure, the ones I'll be
3 calling.
4 THE COURT: How about the other defendants?
5 MR. NELSON: Yes, Your Honor.
6 MR. WALLENSTEIN: That's not a problem, Your
7
Honor.
8 THE COURT: Okay.
9 MR. WHITE: The other thing I would ask, Your
10 Honor, if we're going to send the jury home early
11 tomorrow, maybe tomorrow afternoon we can take up some of
12 the issues that could arise in the defense case so we are
13 not wasting time. In other words, issues about whether or
14 not the whole business of Marquis Who's Who and their
15 practices is something that can be relevant and be
16 admitted. Those sorts of issues.
17 THE COURT: Very well.
18 MR. TRABULUS: The only difficulty with the
19 Marquis Who's Who documents are being delivered tomorrow.
20 They were not here yesterday. They are being delivered
21 tomorrow afternoon pursuant to the agreement with
22 Mr. Bailey, so I don't know that we'll be speaking at that
23 point with a full basis for speaking. 24 THE COURT: We can take up whatever we can. 25 All right.
Motions.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7414
1 MR. SCHOER: Judge, I'm going to begin the Rule
2 29 motions on behalf of, I believe, all the defendants
3 with respect to Counts 2 through 56 which are the
4 substantive mail fraud counts. I want to speak to one
5 particular --
6 THE COURT: You are not going to cover
7 conspiracy?
8 MR. SCHOER: We'll do that later but we would
9 like to just address this issue because I think it is one
10 that Your Honor can rule on fairly easily.
11 THE COURT: All right. These are Counts 2
12 through --
13 MR. SCHOER: 56. Not all the counts, I'm just
14 going to speak to certain of those counts, Judge, and --
15 THE COURT: Just let me get a copy of the
16 indictment.
17 MR. SCHOER: One by one which I think the
18 government has not shown any evidence of maili
ng.
19 THE COURT: Okay. You are going to proceed with
20 counts.
21 MR. SCHOER: 2 through 56, Judge.
22 THE COURT: The mail fraud substantive.
23 MR. SCHOER: Not all of them but I want to 24 concentrate on the third element of what the government 25 must establish with respect to a scheme to defraud and
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7415
1 mail fraud, and that is the use of the mails. It is clear
2 that that is an element of the crime and I submit to Your
3 Honor that with respect to Count 2 the lead card with
4 respect to Mr. Terrance Wharton that the government has
5 not introduced that lead card nor has there been any
6 testimony relating to that lead card and therefore there
7 is no evidence of a mailing with respect to that count.
8 THE COURT: Is that right, Mr. White?
9 MR. WHITE: Ms. Scott will handl
e the argument.
10 MS. SCOTT: That is correct, Your Honor. That is
11 correct.
12 THE COURT: So Count 2 would be dismissed.
13 MS. SCOTT: Yes.
14 THE COURT: Your motion to dismiss Count 2 under
15 Rule 29 is granted. Dismissed.
16 MR. SCHOER: Count 6 is an invoice allegedly sent
17 to a Mr. William Sisson, who was not called as a witness,
18 while the invoice, I believe, the company's record of the
19 invoice was introduced as an exhibit. There's absolutely
20 no evidence that that invoice was ever placed in the mails
21 at all.
22 THE COURT: Did he testify?
23 MR. SCHOER: No, he did not testify, Mr. Sisson. 24 THE COURT: Is that any evidence that that 25 invoice was placed in the mail?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7416
1 MS. SCOTT: Your Honor, we do have as general
2 evidence of the comp
any's business practices, that is
3 Wendi Springer testified about the procedures that were
4 followed with respect to all of these documents. She
5 stated several times in the record and I have the page
6 cites here that invoices were sent out to discuss
7 customers through the mail once they were generated. On
8 that we would be relying on that to support this count.
9 In addition, Your Honor, we have several people
10 who did come in to court to testify that they did receive
11 their invoices through the mail. On top of that we have a
12 number of invoices, and I can read their numbers into the
13 record if you like, that show postmarks on their pressure
14 sensitive copies and they show postmarks on them. The
15 case law does permit inferences of mailings when it is
16 clear that a common practice was followed in case after
17 case. And I would submit that this -- that thi
s -- that
18 the jury should be permitted to make an inference with
19 respect to Count 6.
20 THE COURT: I'm going to rely to some extent on a
21 recent case, one of my cases in the Second Circuit in
22 which mail fraud counts were reversed by the Second
23 Circuit. The case is United States v. LaBarbara. It was 24 decided -- I don't know when it was decided. Let's see 25 here. I think May 31, 1997. And this is what the Second
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7417
1 Circuit said about the mailing part.
2 Three of LaBarbara's mail fraud convictions turn
3 on the alleged mailing by the training program of three
4 children to Easton, Easton is another company.
5 LaBarbara's challenge to the sufficiency of the evidence
6 faces a heavy burden. Because we must view the light most
7 favorable to the government and ask only wh
ether a
8 rational jury could find beyond a reasonable doubt that
9 LaBarbara caused the three mailings. Nevertheless, we
10 agree that the evidence of mailing on those counts was
11 legally insufficient.
12 There is no direct evidence that the training
13 program mailed the three checks to Easton.
14 However, use of the mails may be established by
15 circumstantial evidence and they cite three cases. But
16 the standard of proof is as with every element of a crime,
17 beyond a reasonable doubt.
18 For example, in United States v. Srulowitz, 785
19 F.2d 382, (2d Cir. 1986). A mail fraud conviction was
20 overturned for insufficient proof of mailing.
21 I was going to say I caught it from you,
22 Ms. Scott, but I didn't.
23 The reason I'm going through this is because it 24 is one of the times that the Second Circuit went in detail 25 to the kind of p
roof you need.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7418
1 In Srulowitz a mail fraud conviction was
2 overturned for insufficient proof of mailing where the
3 letter in question was found only in the files of someone
4 other than the addressee. That person speculated that he
5 might have gotten it from the addressee who in turn
6 speculated that if the letter had been in his files, it
7 would have arrived by mail. That was held no good.
8 However, there was no envelope, date stamp or
9 testimony from the addressee's secretary who normally
10 opened the mail. We held that the evidence was "entirely
11 too thin" to support a conviction for mail fraud.
12 Furthermore, inferences drawn from circumstantial evidence
13 such as routine practice, which is what we have here, have
14 been held insufficient in cases where there is evidence of
15 alternative methods of delivery.
16 In Baker, United States v. Baker, 50 F.2d 122
17 (2d Cir. 1931), it must have been written by learned hand
18 or something. In Baker, for example, there was testimony
19 that the letters involved might have been delivered by
20 hand. I guess in 1931 it was by stage coach, and the
21 Court held that in those circumstances the circumstantial
22 proof of mailing was insufficient to exclude a reasonable
23 doubt. 24 In other words, the cases hold where there's 25 evidence of a routine, routine practice as there is in
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7419
1 this case, but there's evidence of an alternative method
2 of delivery, there can be no proof sufficient to convict
3 on the mailing element and the Second Circuit went on.
4 "See United States v. Huber, 603 F.2d 387
5 (2d
Cir. 1979.)"
6 In Huber there was testimony that the checks in
7 issue were typically made in the ordinary course of
8 business. There was also testimony that other checks
9 apparently of a different kind were picked up by hand.
10 Nevertheless, we held that the evidence of alternative
11 methods did not undermine as a matter of law "the use of
12 customary business practices as proof of mailing."
13 "Thus, evidence of an alternative method of
14 delivery must cast significant doubt on the government's
15 circumstantial evidence of mailing to render the later
16 legally insufficient."
17 This is an excellent case. Of course they
18 reversed me and of course I'm not very happy, but it just
19 so happens there were many, many counts that were not
20 reversed so that the same sentence was applied, I mean by
21 the Second Circuit. It didn't even come back to me. We
22 believe that the circumstantial evidence relied upon by
23 the government in the instant matter is legally 24 insufficient. The checks were found in the files of the 25 funds after being cashed by Easton.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7420
1 The government can argue one can infer the
2 mailing of the checks both the records from the mail
3 records and other documents such as contracts, change
4 orders and invoices and from the presence of Easton's
5 address on some of those other documents. However, the
6 three checks were handwritten and did not have Easton's
7 address on their face. Moreover, the fact that
8 La Barbara's father was an officer of Easton, renders
9 hand-delivery a plausible method and further undermines
10 any inference of mailing.
11 Finally, there was evidence that some of the
12 other docu
ments relied upon by the government were in fact
13 not mailed. For example, there was testimony that change
14 orders, change order involved in the construction of a
15 building, change orders were generated at the construction
16 site and were not mailed. As in Srulowitz, the evidence
17 of mailing is "entirely too thin to support a
18 conviction."
19 Easton's -- the defendant's father was an officer
20 of Easton. Easton did landscaping at the scene of this
21 construction of this training building for this union.
22 The checks very well could have been given by the son to
23 the father. There was no evidence that they were mailed 24 whatsoever and the alternative method diminished the proof 25 beyond a reasonable doubt to the point that it was
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7421
1 entirely too thin.
2 In this case
we have a routine that was testified
3 to, I believe, by somebody -- was it this Wendi --
4 MS. SCOTT: Wendi Springer repeatedly.
5 THE COURT: -- That the invoices were mailed.
6 There is no alternative method. How can there be an
7 alternative method of delivering invoices?
8 MR. SCHOER: But there is no proof that these
9 invoices charged in that particular count was ever
10 delivered. I mean, that's the difference.
11 THE COURT: They don't have to prove they were
12 delivered.
13 MR. SCHOER: That they were at least in the mails
14 and there is no proof they went into the mails at all. It
15 could have sat on somebody's desk.
16 THE COURT: I gave you an anomaly case,
17 Mr. Schoer, one of the few in which a conviction of mail
18 fraud was reversed on the mailing element. Now, you are a
19 criminal defense lawyer, you know that's so, but you don't
2
0 have to say it.
21 Here's what the law is, generally speaking. And
22 the last case that I read on the issue is an excellent
23 case, I commend it to all of you. I'm sure that Ms. Scott 24 knows it cold now. It's United States v. Tocco, excellent 25 case. It was decided on January 16, 1998 by the Second
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7422
1 Circuit, and it involved, among other things, a mail fraud
2 conviction. It involved arson, murder, it involved all
3 kinds of things, witness tampering. And here's what the
4 Second Circuit said two months ago.
5 A mail fraud conviction under 18 United States
6 Code Section 1341 requires proof that there was, one, a
7 scheme to defraud; two, furthered by use of the mails;
8 three, for the purpose of obtaining money or property.
9 Citation omitted.
10 Ferranti contests only the
second prong, the
11 mailing. To meet this prong, the government must show
12 that the defendant caused the mailing and that it was in
13 furtherance of a fraudulent scheme. We have construed
17 In order to show that the defendant caused "the
18 mailing" it need only be shown that he acted "with
19 knowledge that the use of the mails will follow in the
20 ordinary course of business" or that "such use can
21 reasonably be foreseen, even though not actually
22 intended." Moreover, a mailing is in furtherance of the
23 fraudulent scheme when it is incidental to an essential 24 part of the scheme. 25 Well, that doesn't exactly answer the situation
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7423
1 here or the mailing part. I think the LaBarbara case
2 does, squarely does. Where is the alternative method of
3 delivering an invoice? How do people get invoices all
4 over the country? They came from every part --
5 MR. SCHOER: Judge, we don't know that they ever
6 got those invoices. That's the leap Your Honor is making.
7 THE COURT: You show me a case that the
8 government has to prove that they received the invoice.
9 MR. SCHOER: No, I don't think that's what the
10 government has to prove. The government has to prove that
11 the mails were used, that someone deposited this document
12 in the stream of mail.
13 THE COURT: What do you call circumstantial
14 evidence of that? Did they have a routine? Where was
15 this invoice? Where did you find this invoice?
16 MS. SCOTT: This particular invoice? It was
17 found in the company's records. It was the company's
18 copy. Wendi Springer testified that copies of the
19 invoices were always mailed out to the customers after
20 they were generated. Of course the company keeps it's own
21 copy.
22 THE COURT: Where did she testify to that?
23 MS. SCOTT: Several pages and I can refer you to 24 them. 25 THE COURT: What is that?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7424
1 MS. SCOTT: 2523, 2524.
2 THE COURT: Just one minute.
3 MS. SCOTT: Okay.
4 THE COURT: 2523.
5 MS. SCOTT: It is discussed, Your Honor, between
6 2523 through 2525, and then there are several page cites
7 on top of that.
8 THE COURT: Just let me take a look.
9 (Perusing.)
10 All right. She says after she signed off on the
11 order form, she sent them to the data entry people.
12 This is on page 2523.
13 "Question: Now, wha
t was the purpose of sending
14 them to data entry?
15 "Answer: They would put the information in the
16 database and at the end of the day we would run the
17 invoices and they would be mailed out.
18 "Question: The data entry people issued the
19 invoices; is that correct?
20 "Answer: They were printed out and then whoever
21 was available to would put the mail together."
22 The bottom of page 2524.
23 "Question: But once these invoices had been 24 generated by the company, what happened to the invoice? 25 "Answer: They were put in the envelope. They
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7425
1 were -- you are talking about the order form with this
2 copy? That's what you are asking?"
3 Well, where else do you say that shows?
4 MS. SCOTT: Okay. Page 3029, in the middle of
5 the page.
6 THE COURT
: I see it.
7 "Question: Can you tell us what that is?
8 "Answer: It is an invoice that would be attached
9 to the original order form. It would be a white copy that
10 would be sent out through the mail to the customer."
11 MS. SCOTT: Now, the next reference is at 3074.
12 THE COURT: Also Springer, direct.
13 MS. SCOTT: This is direct.
14 THE COURT: Okay.
15 "Question: What would happen to those invoices
16 at that point?
17 "Answer: They were checked by accuracy to make
18 sure that the data entry, whoever was, you know,
19 processing the orders, didn't make a mistake.
20 "Question: And who checked these invoices for
21 accuracy?
22 "Answer: I usually did.
23 "Question: What happened to the invoices after 24 that? 25 "Answer: The ones with mistakes on them were
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7426
1 fixed by the person who made the, you know, spelling,
2 typographical errors. The rest were bundled up. They
3 were all bundled up eventually and put in the back for
4 filing.
5 "Question: Were they sent out?
6 "Answer: Yes.
7 "Question: Who were they sent to?
8 "Answer: They were sent to the customers."
9 MS. SCOTT: And finally, Your Honor, at page
10 3157, in cross-examination.
11 THE COURT: Okay.
12 "Question: And the invoices that were mailed
13 out, you reviewed those invoices, right?
14 "Answer: Yes.
15 "Question: And were those sent out by
16 administration?"
17 This is a question by you, Mr. Schoer.
18 MR. SCHOER: Yes, I see.
19 THE COURT: Okay.
20 "Answer: Yes.
21 "Question: So other people in the office, in
22 your office, were the people who actually mailed the
23 invoices to
members; is that right? 24 "Answer: That is correct." 25 Well, not ideal, I would say. For example, I
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7427
1 could think of some questions. Was there a custom and
2 practice invariably followed in the office of Worldwide
3 Enterprises to always send out invoices? Absolutely yes.
4 That would have been even better, would it not?
5 MS. SCOTT: That would have been better.
6 THE COURT: I thought so.
7 MS. SCOTT: I submit there is plenty of evidence
8 that all the invoices were sent out. That was the
9 practice of the company. She stated it not in so many
10 words as you just said but the meaning is clear.
11 THE COURT: I think it is. I think there is
12 sufficient circumstantial evidence and based on LaBarbara
13 which was very picky. It's one of the few times that the
14 Second C
ircuit has stopped and said there is not
15 sufficient proof of mailing and this is what they said
16 repeatedly in that decision because there were alternate
17 methods, it was unclear how it got there, there was a
18 father and a son. The guy was working on the job. They
19 didn't put that in the opinion but that's what happened,
20 so there was insufficient proof of mailing.
21 I'm going to deny your motion on that ground as
22 far as Count 6 is concerned.
23 MR. SCHOER: Judge, just for the record, we would 24 have the same application with respect to Count 8, Count 25 10, Count 12, Count 13, Count 28, Count 31, Count 37,
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7428
2 56. All of those are invoices of people who did not
3 testify.
4 THE COURT: I see. Okay. You lef
t out people
5 like Rita Reiger and so forth.
6 MR. SCHOER: She testified. I'm not making an
7 application. She said she received a document.
8 THE COURT: What about those, are they covered
9 under the same umbrella?
10 MS. SCOTT: Yes.
11 THE COURT: Denied.
12 MR. SCHOER: Judge, the next group relates to the
13 solicitation letter with respect to people who did not
14 testify and that would be Count 19, Count 22, Count 29,
15 Count 49, those counts.
16 THE COURT: What about the solicitation letter?
17 MR. WHITE: Your Honor, with respect to the
18 solicitation letters --
19 THE COURT: On people that didn't testify,
20 right?
21 MR. SCHOER: Yes.
22 MR. WHITE: On people that did not testify. The
23 testimony, and I'll have to find the precise pages, the 24 testimony from Ms. Benjamin regarding the mailing of them 25 was that t
hey were sent out by bulk mailing firms engaged
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7429
1 by Who's Who Worldwide and Sterling Who's Who. That's how
2 those letters were sent by them through the mail. And if
3 you remember I think she identified the post offices that
4 those mailing houses used to send them out.
5 THE COURT: Did anybody from the mailing company
6 testify?
7 MR. SCHOER: No.
8 MR. WHITE: No.
9 THE COURT: Where is the evidence that -- tell
10 me. Show me exactly where it is. That is even more
11 attenuated than the company themselves sending out the
12 invoices. Here they are relying on another company. This
13 is one more step away from evidence, direct evidence.
14 That's circumstantial, circumstantial, double
15 circumstantial evidence.
16 MR. WHITE: Well, maybe we can move on. I don't
1
7 want to hold up with the page cites. I'll have to find
18 them.
19 THE COURT: All right. I have a problem with
20 that.
21 MR. WHITE: I mean, I think Ms. Benjamin
22 testified that Who's Who engaged these firms precisely for
23 the purpose of mailing it out. 24 THE COURT: I know, but no one from that mailing 25 firm testified. Who knows.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7430
1 MR. WHITE: I'll dig out the page references on
2 that one.
3 THE COURT: Is that evidence proof beyond a
4 reasonable doubt because that he hired a company? Who
5 knows what that company's practices are?
6 MR. WHITE: Well --
7 THE COURT: Maybe they have bad procedures in
8 that company. I don't know about that company.
9 MR. WHITE: Well, I think in addition to that,
10 you have the evidence, for example, from all the c
ustomers
11 who did testify that they received solicitation letters in
12 the mail. I think the combination of the two suggests
13 that there is not some alternative means by which these
14 customers were sending these letters out. And I think
15 there's also -- and also Ms. Springer said with respect to
16 the lead cards which we know were included with the
17 letters, this is at page 2507. She says "it was sent --"
18 "Question: How did each customer obtain each of
19 those lead cards?
20 "Answer: It was sent with a letter, a nomination
21 letter, and this card was included in the information that
22 was sent to or I could say solicitation mail that was sent
23 to them." 24 THE COURT: Except no one testified from the 25 company that they had a practice of making sure that each
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7431
1 one of these lead cards was in a solicitation letter. I
2 don't know what practices they had.
3 MR. WHITE: Well, let me try to find more
4 precisely what Ms. Benjamin's testimony was and I'll be
5 able to cite that to you otherwise we'll be wasting time.
6 THE COURT: What else, Mr. Schoer?
7 MR. SCHOER: Judge, I would just say in addition
8 with respect to those counts, particularly Count 49,
9 there's no testimony -- well, I believe there is no
10 testimony with respect to Sterling Who's Who, the
11 solicitation letter and how those were sent. I believe --
12 I'm not sure but I believe Ms. Springer's testimony
13 relates -- I mean, Ms. Benjamin's testimony related to
14 Who's Who Worldwide.
15 THE COURT: So 49 is a Jodie Welch.
16 MR. SCHOER: That's an additional argument that
17 relates to Sterling.
18 THE COURT: That relates to Sterling.
19 MR. SCHOER: Yes.
20 THE COURT: So why does it say Sterling and Who's
21 Who?
22 MR. SCHOER: It says Sterling Who's Who as
23 opposed to the other company. 24 THE COURT: So you are not moving with respect to 25 the other count, 50, because she testifies.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7432
1 MR. SCHOER: Absolutely.
2 THE COURT: What about that? Is there any
3 evidence that Sterling had a similar practice?
4 MR. WHITE: When we find it, Ms. Benjamin was
5 responsible, she testified, for the mailings while she was
6 there of both Who's Who and Sterling.
7 THE COURT: When was she there?
8 MR. WHITE: While she was at Who's Who
9 Worldwide? She has testified, I think she came -- I'll
10 have to check precisely, late '92, and she was there until
11 the arrests in March of '95.
12 THE COURT: Well
, okay. You better show me it.
13 MR. SCHOER: The last group of -- relating to
14 this issue are Counts 39, 40, 47, which are checks of
15 people who did not testify at trial.
16 THE COURT: People who sent in checks.
17 MR. SCHOER: The government hasn't indicated how
18 those checks got to Who's Who Worldwide.
19 THE COURT: Are those checks in evidence?
20 MR. SCHOER: Yes, I believe the checks are in
21 evidence based on that commercial paper ruling Your Honor
22 made the other day, two days ago.
23 THE COURT: Well, what evidence is there that the 24 checks came through the mail? 25 MS. SCOTT: Your Honor, we did not have any
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7433
1 testimony concerning how the checks were transported to
2 the company. All we have is that all of these checks
3 except I believe Count 40 are from
out of town. I mean,
4 the people had to get them somehow, get them to the
5 company in a way that crossed, you know, great
6 territories.
7 THE COURT: Well, Mr. Schoer has raised 39, 40,
8 and 47.
9 MR. SCHOER: Right. The other check issue which
10 was Count 17, the witness testified. So I believe those
11 were the only checks.
12 THE COURT: All right. Ms. Scott, New Rochelle,
13 New York, and Hicksville, New York, are not too far away.
14 I don't know where Allison Park, Pennsylvania is, but
15 there you have no evidence of a mailing, none, except that
16 the check was in the possession of the company. That's
17 it.
18 All right. Anything else on that?
19 MS. SCOTT: We don't have anything, Your Honor.
20 THE COURT: I'm going to grant the motion.
21 Dismissed. Counts 39, 40 and 47.
22 MS. SCOTT: You are dismissing 39 even though the
23 man is in Pennsylvania, Your Honor? 24 THE COURT: Yes. The government has failed to 25 prove beyond a reasonable doubt or so a jury could find
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7434
1 that that check was mailed. I don't know how the check
2 got there. The guy might have come to New York to watch a
3 show or something. I don't know. People do that from
4 time to time.
5 What else?
6 MR. SCHOER: On that issue, I believe, that
7 that's all we have to say at this point on the mailing
8 issue.
9 THE COURT: Okay.
10 What is the next issue?
11 MR. SCHOER: I think someone else will do that.
12 MR. NELSON: Your Honor, I would like to be heard
13 as it relates to the defendant Oral Frank Osman concerning
14 substantive mail fraud counts, Counts 6 through 52 of the
15 indictment and I would ask that those co
unts be dismissed
16 as they relate to Mr. Osman for the following reasons.
17 THE COURT: Just one minute, will you. Just one
18 minute.
19 Now, what is that?
20 MR. NELSON: Your Honor, these would be counts,
21 starting with Count 6 which the date is December 17, 1992,
22 reflects an invoice from Who's Who Worldwide to William
23 Sisson. And it follows through chronologically to Count 24 52, the date of Count 52 is November 3, 1994, which is a 25 solicitation letter sent from Sterling Who's Who to Jack
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7435
1 Heinbaugh.
2 The basis of my application, Your Honor, is that
3 the uncontroverted testimony presented during the course
4 of the trial and that testimony would include the
5 transcript introduced by the government, Government's
6 Exhibit 1379 which was the interview of M
r. Osman by
7 Steven West in the hotel room in 1993, January of 1993, as
8 well as the testimony of Wendi Springer and Alan Saffer,
9 clearly indicates that he was employed at Who's Who
10 Worldwide from November 1991 until mid-November of 1992.
11 He subsequently returned to the employ of Who's Who
12 Worldwide in mid or late November 1994.
13 All of the counts, those being Counts 6 through
14 52 relate to periods of time that would encompass the
15 period for which Mr. Martin, Mr. Osman, was not employed
16 at Who's Who Worldwide.
17 I would submit that as it relates to those
18 substantive counts it would be impossible for him to cause
19 the mailings to occur or to aid and abet in the mailings
20 to occur.
21 THE COURT: What about that?
22 MR. WHITE: Your Honor, I think the Tocco case
23 that you described before says he doesn't have to cause 24
it. He just has to know it is foreseeable in the 25 operation of the scheme.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7436
1 THE COURT: But he wasn't an employee there.
2 MR. WHITE: I understand that. He was employed
3 there before and after. I think, on this one I think we
4 have to confess, I have to do some research. I think that
5 a mail fraud scheme is akin to a conspiracy in the sense
6 that if you joined it you have to do more than just stop
7 working there to withdraw from it, so that he would
8 continue to be liable for the intervening time between
9 when he's there and when he comes back.
10 THE COURT: Well, I would like to see some law on
11 that.
12 MR. WHITE: That's what I mean.
13 THE COURT: I tell you what, I'm going to reserve
14 decision for the time being until tomorrow after our
15 session.
16 MR. NELSON: Yes, Your Honor. It would be my
17 position there is certainly a difference between
18 substantive law where the government is charging that he
19 aided and abetted and the conspiracy. I'm not asking for
20 the dismissal of the first count of the indictment on that
21 basis because the argument of course could be that he
22 adopted the position of the company. We'll subsequently
23 address Count 1 of the indictment which is a separate 24 issue. 25 But as it relates to the substantive mail fraud
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7437
1 counts, I can't see how an individual can be charged with
2 aiding and abetting in an act he wasn't present for. It
3 would be the functional equivalent if there were acts of
4 numerous different robberies committed by a gang, joined
5 the gang at a later point in time and agreed to
share in
6 the proceeds at some later point in time of some of the
7 ill-gotten gains of that robbery. Certainly he would be
8 responsible for the conspiracy, but as to the substantive
9 counts at best he could potentially be an accessory after
10 the fact which is not something that the government
11 charged with him here.
12 THE COURT: We'll have to take a look at the
13 law. Do you have any cases on that?
14 MR. NELSON: I do not, Your Honor.
15 THE COURT: Okay.
16 MR. DUNN: Your Honor, in a similar vein for
17 Mr. Rubin who there is evidence that the earliest that he
18 began work at Who's Who Worldwide was March 1st of 1994,
19 and that is the date that comes out in his so-called
20 statement to --
21 THE COURT: I missed you there. When did he
22 work?
23 MR. DUNN: Sometime in March of 1994 he commenced 24 work. In his statement, allege
d statement it is March 25 1st.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7438
1 Wendi Springer testified that she believed a year
2 before the arrest which would take it to March 30th of
3 '94, his statement says March 1st, Saffer testified March
4 of '94, and there is a customer that testified which is
5 count, I think, 43. Just give me a second. 43, Fred
6 Simmon which is dated March 14th of 1994. And on the
7 invoice there the account executive or the account person
8 is Mr. Rubin.
9 So clearly on March 14th he was working. But the
10 count that precedes that, the count that precedes that is
11 the Sterling count and all the other counts clearly
12 predate March of '94.
13 So my application in the first instance
14 concerning Mr. Rubin is to dismiss Counts 2 through 41, of
15 course, saving the ones that have alrea
dy been dismissed.
16 Also addressing --
17 THE COURT: Just one minute now.
18 MR. DUNN: I'm sorry.
19 THE COURT: So that would be 3 through 41; is
20 that correct?
21 MR. DUNN: That's correct, Your Honor.
22 Also, according to the testimony of Agent Jordan,
23 Mr. Rubin was not employed at Worldwide at the date of his 24 arrest. The government has not made any showing when 25 during the month of March of 1995 that Mr. Rubin left
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7439
1 Who's Who Worldwide.
2 Counts 55 and 56. 55 is dated March 17th of 1995
3 and Count 56 is March 25th of 1995. Since there has been
4 no proof presented by the government to establish that
5 Mr. Rubin was employed on those dates, but we do know that
6 clearly he wasn't working at some point in March of '95, I
7 would also move to dismiss
Counts 55 and 56.
8 THE COURT: Let's take it slowly now.
9 Your first motion is to dismiss Counts 3 through
10 41 because he was prior to being --
11 MR. DUNN: His employment.
12 THE COURT: To his employment, and those are the
13 same, which I'll reserve decision because we'll have to
14 look at the law.
15 MR. DUNN: Right. And I would also ask 55 and 56
16 be included in those, those counts.
17 THE COURT: Well, what is the evidence? What did
18 the government prove he worked until?
19 MR. DUNN: They haven't proved anything about how
20 long he worked. All they have established is that on the
21 date of his arrest he wasn't working at Who's Who
22 Worldwide, that he left employment based on a hearsay
23 statement from Liz Sautter and an alleged statement -- 24 well, whatever, from information Agent Jordan had received 25 from Liz Sautter and apparen
tly from Mr. Rubin.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7440
1 THE COURT: Well, what do you say about that?
2 What does the proof show as to when he was working?
3 MR. WHITE: Your Honor, may I have one minute to
4 confer?
5 THE COURT: Yes.
6 (Counsel confer.)
7 MR. WHITE: Your Honor, I think a quick perusal
8 here indicates that the evidence was that he worked at
9 least until December of 1994 because he's on tapes in
10 December of 1994. So I think at a minimum it goes through
11 December of '94.
12 THE COURT: Well, that would mean that Counts 54,
13 55 and 56 under the defendants' theory would go.
14 MR. WHITE: Under Mr. Dunn's theory, that's
15 right. And I'll also look to see if there was anything
16 else that puts him there later.
17 THE COURT: What about this Sterling Who's Who,
18 Count 5
2?
19 MR. DUNN: Your Honor, there are several
20 actually. On March 7th of 1994 --
21 THE COURT: Wait a minute.
22 MR. DUNN: Count 42 is also a Sterling Who's Who.
23 THE COURT: What about the Sterling Who's Who 24 counts? 25 MR. WHITE: I'm not sure what you mean, on what
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7441
1 theory?
2 THE COURT: They didn't work for Sterling Who's
3 Who.
4 MR. SCHOER: I think we'll make an application on
5 behalf of all the defendants that all Sterling counts
6 should be --
7 THE COURT: Let's wait with that. Let's get
8 through with Mr. Dunn.
9 MR. DUNN: I believe that is all I have now since
10 they will address the Sterling issue separately, Your
11 Honor.
12 MR. WHITE: So I should address the Sterling
13 separately?
14 THE COURT: What's the ne
xt motion that the
15 defense wants to make?
16 MR. SCHOER: Perhaps I ought to raise that. We
17 have an application on behalf of all the defendants, other
18 than Mr. Gordon, I believe, I don't want to speak for
19 Mr. Trabulus, but other than Mr. Gordon, we would all, all
20 the other defendants would move to dismiss each of the
21 substantive counts that relate to mailings by Sterling
22 Who's Who as opposed to Who's Who Worldwide.
23 THE COURT: All the defendants except Gordon and 24 Sterling Who's Who? 25 MR. JENKS: And Sterling Who's Who. And even
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7442
1 Worldwide would join in that, Who's Who Worldwide.
2 MR. TRABULUS: Even Gordon will join in that,
3 because Your Honor may be anticipating my own argument
4 later.
5 THE COURT: One moment.
6 MR. SCHOER: Do you wa
nt me to name you which
7 counts they are, Judge?
8 THE COURT: Yes.
9 MR. SCHOER: Judge, just give me a second.
10 THE COURT: Yes.
11 MR. SCHOER: It's Count 42, Count 49, Count 50,
12 Count 52, Count 54.
13 THE COURT: All right. Let's hear from the
14 government on that. How can you -- these people were not
15 employed by Sterling. Let's not talk about Gordon for the
16 time being because I think he's in Sterling also, but what
17 about the other defendants?
18 MR. WHITE: Well, Sterling is another participant
19 in this scheme. In other words, Sterling is to Frank
20 Martin as Annette Haley is to Frank Martin, in other
21 words, another co-schemer in this. So even if they don't
22 work for Who's Who they are as responsible for those
23 counts as they are another person's count if they joined 24 the scheme, even though they didn't actually talk to the
25 person on the phone. And there is evidence that the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7443
1 companies were run in sort of two offices but in sort of a
2 unitary fashion.
3 Ms. Springer said she performed the same
4 functions, processing the paperwork, invoices and whatnot
5 for both Sterling and Worldwide.
6 Ms. Benjamin said she was in charge for sending
7 out the solicitation letters for both Sterling and
8 Worldwide.
9 The evidence was that this CD ROM that
10 Mr. Trabulus was so fond of was both Sterling and
11 Worldwide combined, that they operated under the umbrella
12 of this Who's Who Executive Club, that members of both
13 Worldwide and Sterling became a member of that and that's
14 the entity that offered them the benefits. The pitch
15 sheets and the objection sheets that are in evidence from
16 Sterling indicate that there's a similarity, in other
17 words, when you compare them the basic pitch it's the
18 same, the sales presentation is the same, what they are
19 selling is the same. There is no dispute that Mr. Gordon
20 was the president and the person primarily in charge of
21 the operations of both, that he split his time between
22 both.
23 So I think there's a sufficient connection that 24 Sterling was participating in the same scheme as Worldwide 25 and the other defendants even if they worked for
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7444
1 Worldwide.
2 Now, they may challenge the sufficiency of
3 whether or not there was a scheme or whether or not they
4 joined in it, but I don't think based on the point they
5 are raising now that these counts should be dismissed.
6 MR. NELSON: Your Honor, if
I may respond briefly
7 to the issue that the government has raised. It's sort of
8 tangential or interconnected to the argument I made
9 previously concerning the substantive counts and the
10 conspiracy. In essence one of the claims we are making
11 and certainly we'll be asking the Court for a charge on we
12 have multiple conspiracies here. The government has
13 chosen to charge 56 separate substantive counts of mail
14 fraud. And out of one side of the mouth they are saying
15 there are 56 substantive counts of mail fraud. On the
16 other they are saying there is really one ongoing scheme
17 which is one substantive count with two different
18 companies. Either we're dealing with a duplicitous
19 indictment here in the way it is drafted in Counts 2
20 through 56 or the government is mixing conspiracy and
21 substantive law which, quite frankly, it seems the law is
22 quite muddled as it relates to conspiracy and mail fraud
23 and what they're doing. 24 To argue that, people who at no time even 25 appeared at Sterling Who's Who, it should be included in
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7445
1 substantive counts as it relates to them is really
2 reaching rather afar, I would submit, certainly as it
3 relates to their attempt to prove an overarching
4 conspiracy. It is relevant and it is an issue for the
5 jury to decide. But as it relates to each substantive
6 count I would submit that the government chose to charge
7 56 separate counts, they could have charged one as an
8 ongoing count. They chose not to. Therefore, they have
9 the burden of proving each one separately and each element
10 separately and that's the basis of the Rule 29 as it
11 relates to that.
12 MR. TRABULUS:
Your Honor, with regard to
13 Mr. Gordon, of course there is no issue that Mr. Gordon,
14 but that Mr. Gordon was in control of Sterling and thus
15 unlike any of the other defendants he has a connection to
16 Sterling. But under these substantive counts which
17 involve actions by other people at Sterling who sent
18 things and did things, his liability, under the
19 government's theory as I understand it, would be pursuant
20 to the conspiracy which they've allege.
21 Now, we'll be talking later on about whether or
22 not the government has made out any conspiracy at all.
23 But just leaving that aside, Your Honor, I think on the 24 evidence here there is no evidence that where you can find 25 a single conspiracy here embracing both Sterling and Who's
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7446
1 Who Worldwide. I think --
2 THE COURT: Are you talking about conspiracy or
3 mail fraud?
4 MR. TRABULUS: Well, Your Honor, it seems to me
5 that with regard to the mail fraud counts here, I'm
6 talking about conspiracy at this point.
7 THE COURT: Well, I'm not talking about
8 conspiracy and certainly there could be a conspiracy
9 between two corporations and individuals, it's done all
10 the time.
11 MR. TRABULUS: It could be.
12 THE COURT: I'm talking about a substantive mail
13 fraud. There has to be a scheme, artifice, or scheme to
14 defraud for the purpose of obtaining money or property.
15 Now, what defendant here that's not working for
16 Sterling obtained money or property or tried to obtain
17 money or property from a Sterling account? That's the
18 problem.
19 MR. WHITE: Your Honor, all they have to have
20 done is participated in a single scheme.
21 THE CO
URT: How could they participate in
22 Sterling? Assuming they have some of the personnel that
23 were the same, assuming that the administration was 24 similar or the same which is what you say, with 25 Ms. Benjamin and Ms. Springer --
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7447
1 MR. WHITE: Right.
2 THE COURT: -- Sterling had their own sales
3 force, Who's Who had its own sales force. The salesmen
4 and the salespeople in Sterling were attempting to obtain,
5 under your theory, money under false pretenses. They
6 didn't give them what they represented, what they bought,
7 the material element that they wanted, that's the thrust
8 of your case. But that's the Sterling salespeople who did
9 that, not the Who's Who salespeople. You can't merge the
10 two together. It's two separate companies in two separate
11 offices with two
separate sales forces. I could think
12 that even if they were in the same physical plant, that
13 there were two separate companies that you would have a
14 problem.
15 MR. WHITE: Your Honor, I think the fact that
16 they call or that they are called two separate companies
17 is sort of putting form over substance. For example, if
18 this was a scheme to defraud and Mr. Gordon had ten
19 different offices around the country and every day faxed
20 that day's pitch sheets to each of the offices and said
21 follow this fraudulent pitch sheet, the people in LA don't
22 know the people in New York and they don't care and they
23 never have been there but they are part of a common 24 scheme. So if mailings are made from the people in LA as 25 part of that scheme, these people don't have to be
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7448
1 involved in it. All they have to do is know that it is
2 reasonably foreseeable.
3 It seems to me that Sterling -- it seems to me
4 that the way it is charged, as I said before, Sterling is
5 another participant in this scheme generally, I mean, as a
6 corporate entity. And so just as I said before, just like
7 an individual salesman may not really care what the guy
8 next to him is doing, he also may not care what they are
9 doing at Sterling, but that doesn't mean that they are not
10 responsible for it. If it's part of one unitary scheme
11 which I think the evidence is clear that it is.
12 In other words, Mr. Gordon's operation just
13 happened to take place in two different offices and he
14 gave one a new corporate name. That in and of itself
15 doesn't mean that it's a separate scheme. It's the same
16 scheme.
17 THE COURT: How can it be the same sche
me when
18 the salespeople for Sterling benefit from their alleged
19 misrepresentations and the salespeople from Who's Who
20 Worldwide don't benefit from Sterling's? It's a separate
21 company, separate employees. Your example of ten
22 officers, you can have ten officers of General Motors
23 Company and of course it will be the same scheme and the 24 same attempt to get money. That's what it is. We are 25 talking about an attempt to get money. How did the Who's
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7449
1 Who Worldwide salespeople attempt to get money from the
2 Sterling customers? It's as simple as that to me.
3 MR. WHITE: Your Honor, I understand what you're
4 saying now. I don't believe that we have to show that the
5 Who's Who Worldwide salespeople are trying to get money
6 from Sterling customers. If they are part of the sam
e
7 scheme, okay, then the Who's Who try to get money from
8 Who's Who customers and the Sterling people try to get
9 money from the Sterling customers. If we sort of show it
10 is one unitary scheme --
11 THE COURT: But you have no defendants that work
12 for Sterling, except Mr. Gordon.
13 MR. WHITE: That's correct, but Sterling itself
14 is a defendant.
15 THE COURT: Sterling will remain a defendant.
16 But these salespeople didn't work for Sterling. They had
17 nothing fiscally to do with Sterling. It's as if two
18 separate corporations -- we know they had similar
19 administration and things like that, but that's not
20 unusual. How can they be convicted of a crime of
21 attempting to get money and property from Sterling
22 customers when they had nothing to do with Sterling,
23 didn't gain from it and couldn't gain from it? How could 24 there
be criminal liability arising from that? 25 MR. WHITE: I mean, I don't want to repeat what I
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7450
1 said.
2 THE COURT: Show me a case.
3 MR. WHITE: I'm going to have to do that.
4 THE COURT: Yes, if you will not I will dismiss
5 it.
6 MR. WHITE: I think the analytical difference is
7 that they don't have to have dealt with Sterling customers
8 if irrespective of the fact that we're talking about two
9 corporations, if we've shown they are part of one scheme.
10 We know they are following the same pitch, they are
11 offering the same product, there was a substantial overlap
12 in the operations of the company.
13 So while I understand what Your Honor is saying,
14 I just don't think it is necessary to prove that they're
15 specifically dealing with Sterling customers.
1
6 THE COURT: Show me.
17 MR. WHITE: I will have to.
18 THE COURT: I agree with Mr. Nelson. You are
19 mixing up conspiracy and substantive mail fraud. In a
20 conspiracy it is another matter. It's an agreement by the
21 corporations and the individuals and everybody in the
22 shooting match. It doesn't matter which customers they're
23 trying to defraud allegedly, but in a mail fraud 24 substantive mail fraud, there's a scheme or artifice to 25 defraud by reason of false pretenses or representation to
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7451
1 deprive someone of money or property. These defendants
2 who worked for Who's Who didn't try to deprive any
3 Sterling customer of any money or property. It's as
4 simple as that with me.
5 Now, you say that doesn't matter if they don't
6 work for the company and have no financial i
nterest in the
7 company and have no gain from the company. I don't see
8 that and you'll have to show me some cases or I'm going to
9 toss those counts.
10 MR. WHITE: I will do that. Let me just explain
11 what I think where we differ.
12 It's my understanding that the scheme, the scheme
13 that's alleged is all of these participants, these
14 defendants and Sterling participated in a scheme to obtain
15 that money and property from customers of both of them and
16 I -- it doesn't seem to me that you have to show that each
17 defendant dealt with each particular customer. If as part
18 of that scheme they all, they tried to obtain money and
19 property from customers of both companies.
20 THE COURT: Well, if you mean that an intended
21 loss is sufficient, it doesn't have to be an actual loss,
22 of course you're right. But here there could be no loss.
23 Th
ere's no intended loss as a result of misrepresentations 24 to Sterling customers. Not by these defendants. 25 MR. WHITE: Okay. I will --
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7452
1 THE COURT: It doesn't make sense. It's not
2 rational to me, however, you might be able to show me that
3 you're right.
4 MR. WHITE: I will not waste any more time. I'll
5 do the research and talk about it tomorrow.
6 THE COURT: Okay.
7 MR. JENKS: Judge, I will make one argument with
8 respect to all the Sterling counts against Sterling Who's
9 Who which are Counts 42, 49, 50, 52 and 54. And the
10 argument that I make on behalf of the corporation is a
11 jurisdictional argument.
12 Sterling Who's Who was located at 750 Lexington
13 Avenue in New York City which is in the Southern District
14 of New York. The mailings that were mailed
here, the
15 solicitation letters, the invoice which -- and even the
16 lead card, and there weren't in any of these counts, there
17 were solicitation letters and invoices were mailed in the
18 Southern District of New York, if they were mailed to any
19 place, to a location outside the Eastern District of New
20 York. So on those five substantive counts I make a
21 jurisdictional argument.
22 THE COURT: What is the nexus to the Eastern
23 District? 24 MR. WHITE: Mr. Jenks said 42 -- 25 THE COURT: The same counts.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7453
1 MR. JENKS: Same counts.
2 MR. WHITE: The answer on those --
3 THE COURT: Excuse me, 42, 49, 50, 52 and 54, as
4 I understand it those are the only Sterling counts, mail
5 fraud counts, correct?
6 MR. JENKS: Yes.
7 MR. WHITE: With respect to t
he solicitation
8 letters, again, this is one of the items we're going to
9 look up tonight.
10 Ms. Benjamin testified that she was in charge of
11 the sending of a solicitation letter for both Who's Who
12 and Sterling and she said that those letters were sent out
13 by the particular mailing houses and I specifically asked
14 her about where those mailing houses were located and
15 where they mailed them from. And her testimony was that
16 they were either in Queens or Long Island.
17 MR. TRABULUS: There was one in Virginia, Your
18 Honor, there was one down south somewhere, and we don't
19 know where these particular letters came from.
20 THE COURT: If in fact Ms. Benjamin testified
21 that the Sterling solicitation letters or bundle or
22 package was sent to a mailing company in the Eastern
23 District of New York, that would be enough. 24 MR. JENKS: She
didn't. 25 MR. SCHOER: She wasn't asked specifically.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7454
1 MR. JENKS: I don't think there was any
2 specificity with respect to that, Your Honor.
3 MR. WHITE: Your Honor, I know, I'm anticipating
4 this issue about Sterling and where the mailings were sent
5 from. I specifically sent her what post offices they sent
6 them from.
7 THE COURT: Where? Where in the record is that?
8 MR. WHITE: That's what I said. That's
9 Ms. Benjamin's testimony about the mailing that I'll look
10 up.
11 THE COURT: All right. What's the next motion?
12 MR. TRABULUS: Your Honor, on behalf of
13 Mr. Gordon, I join in all the arguments submitted before
14 and also I want to state that we move for a judgment of
15 acquittal on each of the counts against him.
16 THE COURT: Are you talking abo
ut the mail
17 frauds?
18 MR. TRABULUS: Well, Your Honor, I was going to
19 formally move on the record that I'm moving for a judgment
20 for acquittal on each count against him, to make sure I
21 don't miss any counts down the road, Your Honor.
22 THE COURT: Go ahead.
23 MR. TRABULUS: I'll break up my argument because 24 I have a fair amount of territory to cover including 25 counts that only Mr. Gordon is charged with. But I'd like
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7455
1 to address the -- begin addressing, I think other counsel
2 may have comments too, the conspiracy aspect under the
3 mail fraud and that would be Count 1.
4 Your Honor, I would like to go through some of
5 the allegations in the indictment and point out certain
6 ones that have not been supported by the evidence.
7 THE COURT: One minute now.
8 MR. TRABULUS: Actually, before doing that,
9 firstly, I think the government has failed to establish a
10 conspiracy as such. They have not sought the use of
11 co-conspirators' statements. They have not asked that
12 Your Honor make a finding which is required in applying
13 Bourgaily. I think that, and here I'm speaking on behalf
14 of Mr. Gordon, I think you have to separate out the things
15 which may properly be attributable to Mr. Gordon in terms
16 of the pitch sheets and things that individual
17 salespeople, most of whom are not on trial here, may have
18 added in. I mean, we've heard, for example, tremendous
19 variation. We had the pitch sheets that would indicate
20 that the things, the directories were not in libraries and
21 yet we heard a salesperson who is not on trial here say
22 that they were found in most libraries. And I was going
23 to comment
with regard to some of the substantive counts, 24 Your Honor. And some of the Sterling counts, for example, 25 that we had statements there that were made by salespeople
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7456
1 that were certainly not -- could not be attributed to
2 Mr. Gordon in any way and were really contrary to his
3 instructions.
4 THE COURT: Before you continue, I have a
5 logistical problem that we ought to discuss and that is
6 it's obvious that we'll never get through the discussion
7 on the law with regard to the motions this afternoon. As
8 a matter of fact, Counsel will have to do some looking.
9 Now, there is a problem in that I should conclude
10 this discussion before the defendants start their case.
11 Now, if the defendants agree, since there will only be
12 tape-recordings tomorrow to put in their tape-recordi
ngs
13 since we have the jury coming in, as far as thinking about
14 the jury, if we can put the tapes in and then with the
15 consent, express consent on the record of all the
16 defendants to continue this discussion on the Rule 29
17 motion at the end of the Government's case, to move it
18 until tomorrow afternoon or even the next day, if it is
19 necessary, fine. Otherwise, we'll have a problem with the
20 jury coming in tomorrow morning.
21 Do you want to think about that and talk to me
22 about that?
23 MR. SCHOER: Quickly, I think we all consent. 24 MR. TRABULUS: Yes. 25 MR. SCHOER: We would consent to proceed to put
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7457
1 the tapes in.
2 THE COURT: So you are agreeing there will be no
3 error committed by me in continuing the discussion of Rule
4 29 motion at
the end of the government's case tomorrow
5 afternoon, after you start the defendants' case.
6 MR. SCHOER: Yes, Judge.
7 THE COURT: Is that right?
8 MR. WALLENSTEIN: A very nice compromise on your
9 part. We all consent.
10 THE COURT: Mr. Trabulus, does your client know
11 what we're talking about?
12 MR. TRABULUS: Frankly, Your Honor, I don't think
13 he does.
14 THE COURT: Each lawyer please tell your clients
15 now what I'm talking about.
16 (Counsel confer.)
17 THE COURT: I overheard Mr. Trabulus. It's a
18 very good thing to say. It's limited as to the state of
19 the record as of the government resting, not the
20 defendants' case. And there will not be much of it
21 tomorrow morning. It's limited to the state of the record
22 as of now. It's like fixed for eternity.
23 MR. NEVILLE: Your Honor, speaking for Scott 24 Michaelso
n we consent. 25 THE COURT: And he understands?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7458
1 MR. NEVILLE: Yes.
2 MR. DUNN: And I've advised Mr. Rubin and he
3 understands, Your Honor, and he has no objection.
4 THE COURT: He consents.
5 MR. DUNN: He consents.
6 MR. NELSON: I advised Mr. Osman and he
7 consents. Likewise pursuant to 29(a), the last sentence
8 it states specifically "if the defendant's motion for a
9 judgment of acquittal at the close of the evidence offered
10 by the government is not granted, the defendant may offer
11 evidence without having reserved the right." And
12 accordingly there wouldn't be a waiver under the statute.
13 THE COURT: Well, I'm old-fashioned. I know the
14 new law.
15 MR. NELSON: I wanted to note that for the
16 record.
17 THE COURT: We couldn't reserve prev
iously but we
18 can now.
19 MR. NELSON: We consent.
20 MR. SCHOER: On behalf of Garboski, we consent.
21 MR. TRABULUS: We consent on behalf of the
22 corporation.
23 MR. LEE: And my client consents. 24 MR. TRABULUS: And Mr. Gordon consents. 25 MR. GEDULDIG: Ms. Haley consents.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7459
1 MR. WALLENSTEIN: And Mr. Reffsin consents and he
2 understands as well.
3 THE COURT: Sorry to interrupt you, Mr. Trabulus,
4 but that was a practical matter that came to me, see.
5 MR. TRABULUS: Your Honor, I mean, one thought I
6 have. I don't know if Your Honor would like me to do
7 that, since the discussion on the conspiracy will be
8 tomorrow, I think and other people will have things to say
9 and it I might turn to something, for example, such as the
10 perjury count.
11 THE COURT: You can do what you want. We'll work
12 until 5 o'clock and we should work until tomorrow
13 afternoon.
14 MR. TRABULUS: I'll turn to the perjury counts,
15 Your Honor, because that's a very distinct part of the
16 case.
17 THE COURT: Just one minute now.
18 What count is that?
19 MR. TRABULUS: Your Honor, it's either 58 or 59.
20 MR. WALLENSTEIN: It's 57.
21 MR. TRABULUS: 57, I was close.
22 THE COURT: Let's hear about that.
23 MR. TRABULUS: Your Honor, they haven't 24 established falsity, they haven't established materiality 25 and they haven't established knowledge on the part of
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7460
1 Mr. Gordon. I'll go through it.
2 Firstly, there is no evidence that Mr. Gordon
3 knew -- I think the evidence is clear that it came from
4 Debbie Benjamin
and I think there might have been other
5 salespeople who indicated that they had heard that this
6 was something that which had genuinely been planned but
7 nobody from Who's Who Worldwide signed up for it.
8 THE COURT: So that the record is clear, we are
9 now talking about Count 57 which alleges that on or about
10 February 17, 1994 and February 22, 1994, defendant Gordon
11 took an oath and testified untruthfully as to false
12 material declarations in the Reed trial with regard to
13 testimony as to the seminar in Hong Kong and Vietnam,
14 correct?
15 MR. TRABULUS: Right, Your Honor.
16 THE COURT: I'm just wondering whether we ought
17 to do -- whether we ought to use the time to discuss the
18 conspiracy instead where everybody else is involved.
19 What is the thought of the other lawyers? Do you
20 want to go through this first or do you want to deal with
21 the conspiracy?
22 MR. SCHOER: Judge, whichever Your Honor wishes.
23 THE COURT: I mean -- 24 MR. TRABULUS: If other lawyers want to discuss 25 the conspiracy I would ask them to do it because my
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7461
1 thoughts are more concentrated at the moment on this.
2 THE COURT: Let's go with this. You started it
3 now.
4 So you say there is no proof of falsity.
5 MR. TRABULUS: No proof of falsity, no proof of
6 materiality and no proof of knowledge on the part of
7 Mr. Gordon.
8 The evidence is clear, and I mean the evidence is
9 uncontradicted coming out of the government's witnesses
10 that this seminar was planned and that indeed it was set
11 up, that it was arranged through an outside agent by the
12 name of Mr. Emstrom (ph), that it was arranged as a
13 piggyback,
as a conference and seminar that was being done
14 by the American Bar Association. And the American Bar
15 Association did go. The seminar -- there's nothing to
16 indicate that as a single Who's Who Worldwide member, had
17 they signed up, could have gone.
18 Now, let's look at the testimony. I'm on page 19
19 of the indictment, paragraph 29.
20 "Question: When did you have your first Who's
21 Who Worldwide seminar?
22 "Answer: December. I know the plane left the
23 conference about December 28th to Vietnam and Hong Kong." 24 Then it goes on to say in 1993, in 1993, right? 25 THE COURT: Well, instead of you telling me that
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7462
1 it is not false, where does the government say it is
2 false? What did he say that was false? I'm talking about
3 Count 57. Tell me specifically.
4
MR. WHITE: Well, the part that Mr. Trabulus just
5 read --
6 THE COURT: What part?
7 MR. WHITE: He was reading from page 19 of the
8 indictment.
9 THE COURT: You mean "I know the plane left the
10 conference"?
11 MR. WHITE: No, I mean the following. I'll read
12 it.
13 "Question: When did you have your first Who's
14 Who Worldwide seminar?
15 "Answer: December."
16 And then he reads the part Your Honor just read.
17 THE COURT: Wait a minute. I'm lost here.
18 I see.
19 MR. WHITE: I think it is conceded that the
20 seminar did not take place.
21 THE COURT: The seminar took place but they
22 didn't participate in it.
23 MR. WHITE: No, Ms. Benjamin was clear -- I 24 should say this. Her testimony was such that the jury 25 could conclude that there was not a Who's Who Worldwide
HARRY RAPAPORT, CSR, CP, CM OF
FICIAL COURT REPORTER 7463
1 seminar. She was very clear that although they were to go
2 together, like fly on the same plane, that the seminars
3 were to be different between the lawyers and Who's Who
4 Worldwide. The fact that someone was going to go there
5 and the lawyers had a seminar is quite different than
6 Who's Who Worldwide actually had a seminar there. They
7 weren't going to attend the same seminar. She said they
8 were going to prepare, if enough people signed up, a
9 separate thing, activities there for the Who's Who
10 members. The fact that they were going to fly on the same
11 plane is different.
12 For example, when the lawyers were in Vietnam
13 they weren't saying that was the Who's Who Worldwide
14 seminar, it was a momentary thing that maybe the travel
15 operator would have put these two groups together so they
16 could fly
over on the plane and get a lower rate on their
17 hotel. It doesn't mean what took place there was a Who's
18 Who Worldwide seminar. I bet nobody there even knew who
19 Who's Who Worldwide was.
20 MR. TRABULUS: I think, Your Honor, the testimony
21 was I think she did indicate on direct and again I have to
22 look at the exact words, the groups were going to keep
23 separate if there were enough. But on cross she knew if a 24 single Who's Who Worldwide person had gone, signed up, 25 that person would have allowed to go and I don't think you
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7464
1 would have had a separate seminar with one person.
2 THE COURT: Let's look at the elements of
3 perjury. "The defendant gave testimony under oath before
4 a federal court." That's conceded.
5 MR. TRABULUS: Right.
6 THE COURT: "The defendant
made false material
7 statements as detailed in the indictment, and the
8 defendant knew that the statements were false when he gave
9 the testimony."
10 Now, let's look at what's false. So far
11 Mr. White has said the first question and answer are
12 false.
13 "Question: When did you have your first Who's
14 Who Worldwide seminar?
15 "Answer: December -- I know the plane left the
16 conference about December 28th to Vietnam and Hong Kong."
17 Now, that's somewhat an ambiguous answer. "When
18 did you have your first --" I don't know what that means.
19 Does it mean that you actually held a seminar? There is
20 no question that they tried to have a seminar and the
21 testimony is clear that they weren't able to get people to
22 go to the seminar. They tried to have a seminar; is that
23 correct, Mr. White? 24 MR. WHITE: That I agree with.
2
5 THE COURT: Okay.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7465
1 "When did you have your first Who's Who
2 Worldwide seminar?" And the answer "December. I know the
3 plane left the conference about December 28th to Vietnam
4 and Hong Kong."
5 Well, I think that's true, the plane did leave.
6 MR. WHITE: I don't think it is, Your Honor, for
7 this reason. If all they said "December" in response to
8 that, then the ambiguity that you are pointing out might
9 be the case. In other words, well, when you had the
10 seminar does that mean when you were planning to have it
11 or when you actually had it? But when he goes further, he
12 says I know the plane left. The conference, referring to
13 the Who's Who Worldwide conference, not being asked about
14 any other one. That clearly is implying that he's talking
15 about that convers
ations actually taking place on those
16 dates and a plane leaving for that conference.
17 MR. TRABULUS: Your Honor, I think in fact that
18 he probably said or meant to say "I know the plane left
19 for the conference" because there is no evidence that
20 there was any conference or anything about any conference
21 beforehand and he wasn't asked about it, the plane leaving
22 before the conference. There was a plane that left for
23 the conference at that time and I think that is truthful, 24 Your Honor. There's nothing in the record to show he knew 25 at the time he gave the testimony that nobody from Who's
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7466
1 Who Worldwide had signed up.
2 THE COURT: I tend to agree with you,
3 Mr. Trabulus, and I distinguish this from the evidence
4 that the government put in by the salespersons who said
in
5 answer to Mr. Watstein, well, did you really have that
6 seminar? Oh, yes, we had it. That's another matter.
7 That's an affirmative representation, false
8 representation. Of course it wasn't under oath, it was on
9 the telephone. But here:
10 "Question: When did you have your first Who's
11 Who Worldwide seminar?
12 "Answer: December. I know the plane left the
13 conference about December 28th to Vietnam and Hong Kong."
14 It's close but I'm not sure about this.
15 MR. TRABULUS: Let me continue.
16 MR. WHITE: Judge, if I can address that before
17 we go on to another part of it.
18 That is why the jury should make this decision
19 because there's enough there that the jury can say that
20 was a false answer, that when did you have your first
21 Who's Who Worldwide seminar, the common ordinary meaning,
22 especially in light of the other answe
rs that he gives was
23 that that was false, that that is referring to something 24 actually taking place. Now, Your Honor, agreed. 25 Would it be clearer if Mr. Bailey or whoever
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7467
1 asked this question asked it like a prosecutor? Yes, but
2 I don't think that is required. It is sufficiently
3 clear. It's plain and ordinary meaning.
4 MR. TRABULUS: Where is the evidence -- I'll not
5 address that. I think we had mentioned this before.
6 There was no evidence that he doesn't know. There's no
7 evidence that Mr. Gordon knew that nobody from Who's Who
8 Worldwide signed up. He was never asked about how many
9 members attended. I think there's evidence that the
10 members dealt directly with the tour operator.
11 I would like to continue if Your Honor wishes
12 with the next page becaus
e I think the problems with their
13 case become even more serious.
14 THE COURT: The next page is not as damning as
15 this page. There is nothing in the next page, in my
16 opinion, that could sustain a perjury conviction.
17 MR. TRABULUS: I agree, Your Honor.
18 MR. WHITE: Well, Your Honor -- do we want to go
19 by it?
20 THE COURT: What in the next page is there?
21 MR. WHITE: Well, if you look on the next page,
22 page 20, the second question, starting with "in the rest
23 of Exhibit 176." It talks about the Who's Who Worldwide 24 business seminars and then in clarification -- 25 THE COURT: Wait a minute. I didn't see that.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7468
1 You're right. Let me read that now.
2 MR. WHITE: To the extent that we need
3 clarification of what they're talking about, whether they
4 are talking about did this actually take place or did you
5 just plan to have it, the question is "has that actually
6 occurred? Has this benefit been provided Mr. Gordon?"
7 MR. TRABULUS: Well, that's the problem with the
8 question, Your Honor. After that, has that actually
9 occurred he changes the question, has this benefit been
10 provided to Mr. Gordon? And it had been. The benefit was
11 provided to the members. All they had to do was avail
12 themselves of it, it was literally true.
13 THE COURT: Well, I think that the combination of
14 these questions on page 20, on second look, may do it.
15 The question is:
16 "Question: There is listed as a member benefit
17 of Who's Who Worldwide business seminars, has that
18 actually occurred? Has this benefit been provided
19 Mr. Gordon?
20 "Answer: Yes."
21 That is definite, unambiguous, unequivocal and
22 could be the basis for a perjury conviction if it is
23 material and false. 24 MR. TRABULUS: And if knowledge of falsity is 25 established.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7469
1 THE COURT: Knowledge of the falsity.
2 MR. TRABULUS: And Your Honor, let me go back.
3 The answer is unambiguous but the question at the very
4 least is ambiguous.
5 Indeed, earlier in this trial Your Honor
6 indicated that when a question was asked and then another
7 question followed before there was an answer, that
8 withdrew the first question. Now, I don't think it be
9 assumed that a layperson --
10 THE COURT: I can't keep up with you,
11 Mr. Trabulus. Don't you slow down as the day gets longer,
12 Mr. Trabulus? Does nothing slow you down?
13 MR. TRABULUS: Federal judges do, Your Honor.
14 THE COURT: Oh, not
really.
15 MR. TRABULUS: Your Honor, I think several days
16 ago in the course of some discussion concerning a question
17 that was put to a witness or a motion to strike, Your
18 Honor expressed the view that when a lawyer asks a
19 question and then follows it up with a different question,
20 the former question is automatically withdrawn.
21 Now --
22 THE COURT: I did say that.
23 MR. TRABULUS: What? 24 THE COURT: I did say that. 25 MR. TRABULUS: That's what we have here. You
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7470
1 have two questions. There is -- first of all, it says it
2 is listed as a member benefit, the Who's Who Worldwide
3 business seminars. Then there are two questions. Has
4 that actually occurred? And then the next question which
5 could either be reviewed as withdrawing or clarifying the
6 previous question, has this benefit been provided? And I
7 think a fair reading of that question is asking
8 Mr. Gordon, hey, did you do for the people what you said
9 you were going to do? And he did. He provided the
10 benefit. There's no evidence that he didn't believe that
11 it was provided and, indeed, the evidence is unequivocal
12 it was provided. The only question is whether anybody
13 assuaged themselves of it. It's like the other benefits,
14 the accounts, the insurance, they were provided to the
15 members. We didn't necessarily have any evidence whether
16 any of the members took advantage of them. So I think the
17 testimony is literally true.
18 On top of that, Your Honor, I go back to the
19 point that every allegation of falsity here in this -- the
20 whole theory that the government has of falsity here rests
21 upon the fact not that this wasn't provided or
wasn't
22 offered or that there wasn't an airplane or there weren't
23 facilities but simply nobody from Who's Who Worldwide 24 signed up for it and there is no evidence that at the time 25 he so testified Mr. Gordon knew that.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7471
1 THE COURT: Well, I have to tell you that I think
2 that circumstantial evidence that he knew about it because
3 he knew everything. He was the sole control command of
4 this whole operation. He was a hands-on, according to the
5 evidence, hands-on president, CEO, whatever you want to
6 call him. He gave, made every material decision.
7 Everything had to go through Mr. Gordon. He was all over
8 the place, knew everything and did everything. So how
9 could -- there's circumstantial evidence that if the thing
10 didn't go -- if the seminar did not occur because there
11 were no people who applied to go, he knew about it.
12 MR. TRABULUS: Let me respond to that, Your
13 Honor. I don't think there is in this case. If this was
14 something that happened in-house, I would see Your Honor's
15 point. But this and the evidence is unequivocal was done
16 by an outside agency.
17 Now, I, perhaps whatever, I did ask Ms. Benjamin
18 whether she found out about it and she said she did
19 relatively soon after it happened, but there is no
20 indication that she ever told Mr. Gordon and, indeed, this
21 is the kind of thing that somebody who might have been
22 intimidated by Mr. Gordon or not anxious to incur his
23 wrath might not have told him unless specifically asked. 24 I don't think under the circumstances when you have 25 something done outside that you can infer that.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7472
1 THE COURT: Slow down.
2 Okay, I think there's enough to go to the jury,
3 Mr. Trabulus. I really do, on Count 57. This answer
4 together with the other answers "has that actually
5 occurred? Has this benefit been provided?
6 "Answer: Yes."
7 MR. TRABULUS: Your Honor, let me just make one
8 more important point with regard to materiality. Now we
9 heard testimony yesterday from Mr. Tardera concerning
10 materiality and it had to do with a claim that there could
11 be confusion and advertising that was done by Who's Who
12 Worldwide could somehow cause confusion and people could
13 ascribe to Reid's Who's Who, things that Who's Who
14 Worldwide said.
15 Now, there is no evidence at all that this --
16 that any advertising between the date that the seminar
17 failed to attract members and the date of the testimony
18 that occurred
which referred to the advertising, which
19 referred to the seminar and there is also nothing to
20 indicate that it would make a material difference because
21 this is really what we're talking about. This is the
22 difference we're talking about, even accepting the
23 government's position and accepting Mr. Gordon knew it, 24 the difference is between Who's Who Worldwide sponsoring a 25 seminar, having it ready and available for any member who
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7473
1 wanted to go, what in a sense is being concealed or
2 misrepresenting that if you accept that nobody signed up.
3 How does that -- how does that -- how is that material to
4 the claims in the Reed case? I mean, there is no
5 demonstration that that distinction between somebody
6 signing up or not signing up or a group of people signing
7 up or not
signing up would in any way, shape or form be
8 material to that. It's not a situation where they are
9 advertising seminars that don't exist, that they are
10 advertising to people that they are offering a service
11 which in fact is not being offered, so people when they
12 attempt to sign up for it find it is not there. It's just
13 a question whether or not somebody had signed up or not.
14 That's it. That distinction, Your Honor, I don't think it
15 has been material in the Reed case.
16 THE COURT: How is it material?
17 MR. WHITE: Your Honor, the existence of Who's
18 Who Worldwide's seminars was material because as Mr.
19 Tardera testified yesterday it was relevant to the
20 trademark issues in that case. He explained one of the
21 issues was the closeness, I'm not using the trademark
22 legal term, but the closeness of the businesses, whether
23 they were bas
ically in the same industry, and I'm 24 paraphrasing what he said. I think he said that the Reed 25 -- I'm sorry, Who's Who Worldwide's argument was Reed's
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7474
1 business is differ than ours because we have seminars and
2 they just publish books. In fact, Reed -- I'm sorry, in
3 fact Who's Who thought it was sufficiently material
4 according to Mr. Tardera that they used it in their
5 appellate brief on the Second Circuit on precisely this
6 point.
7 He testified on 7067, and he referred to
8 Mr. Gordon's testimony and he said "this testimony was
9 used in the appeal to show that Who's Who Worldwide's
10 products were different from Reed publications. They were
11 ready to show that Who's Who Worldwide's Registry was more
12 of a membership or service organization as opposed to a
13 co
mpany that published books.
14 "Question: So in fact, Who's Who Worldwide --"
15 Let me back up.
16 "Question: So if, in fact, Who's Who Worldwide
17 did offer seminars and conferences to its members, what
18 would be the effect on the question whether it was
19 infringing the trademarks with respect to Reed Elsevier?
20 "Answer: That would be evidence that the
21 products were less in proximity or less close to each
22 other or less similar so there would be less of a
23 likelihood of confusion. That would be one of the 24 elements that a court would have considered in deciding 25 that there was less of a likelihood or more of a
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7475
1 likelihood of confusion."
2 THE COURT: Just hold it a minute, please.
3 Well, this is a very sophisticated point of law
4 here. Is it -- materi
al means whether a false statement
5 has a natural tendency to influence or is capable of
6 influencing the decision. Fact-finder, in this case was
7 Judge Jordan. Did this statement, assuming it is a false
8 statement, did it influence the decision of the
9 fact-finder? Well, the government says it did influence
10 the decision of the fact-finder because in a copyright
11 infringement case there has to be proof of confusion as to
12 the source and if the two services that are rendered are
13 almost exactly alike but one offers seminars, then there's
14 less likelihood of confusion.
15 Now, we have to go one more step down in the
16 nuances. Is it material to say that we advertised
17 seminars? Does that make the difference or does it make a
18 difference that you actually have to hold a seminar? You
19 see, there could be a good argument made by Mr. Trabulus
20 that
the mere fact that you advertised for a seminar, put
21 you in a membership type of business and that you were in
22 that type whereas Reed doesn't do that so they are
23 different. 24 MR. TRABULUS: That's the point, Your Honor. 25 They were advertising it and in more than good faith
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7476
1 attempting to hold it. And the happenstance that nobody
2 signed up for it is not material because the difference is
3 that this is a place that advertises it, not just
4 advertises but does it?
5 THE COURT: But that's an issue for the jury,
6 isn't it?
7 MR. TRABULUS: I don't think so.
8 THE COURT: Didn't the United States Supreme
9 Court say in a case that we used to say materiality was a
10 question for the Court, now it's a question for the jury?
11 MR. TRABULUS: Yes, but if under no rea
sonable
12 view of the evidence you can find materiality, and I think
13 that's the case.
14 Your Honor, I would like to turn back to one of
15 the other points I was talking about because if you look
16 at the testimony that immediately followed the testimony
17 that is set forth in the indictment, you will see that
18 Mr. Gordon in talking about the seminar, the seminar, was
19 not referring just to something that included Who's Who
20 people, but he was talking about the overall package that
21 involved the ABA, and with that understanding his
22 testimony was clearly truthful even accepting all the
23 things we say. It's not laid out in the indictment but it 24 is in Exhibit 811 which is in evidence. 25 Go going to the indictment, the last question and
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7477
1 answer set forth in the
indictment is:
2 "Question: This is something arranged by or on
3 behalf of Who's Who Worldwide?
4 "Answer: Yes."
5 I'm reading now from Exhibit 811.
6 "Question: Were anybody but members invited to
7 attend the seminar?
8 "Answer: A law group, lawyers.
9 "Question: Okay. And what was the purpose of
10 having lawyers?
11 "Answer: You get several groups together and
12 it's cheaper that way.
13 "Question: Okay. But the invitation went out to
14 the membership?
15 "Answer: Yes."
16 Now, Mr. Gordon -- excuse me, Mr. White -- I mean
17 Mr. Gordon is testifying about a seminar which he seems is
18 including both Who's Who Worldwide and the ABA. Mr. White
19 made the point that there was, that according to Debra
20 Benjamin it was contemplated the two groups would be
21 separate and they be separate seminars. To infer that
22 pe
ople didn't sign up I don't think that would be a fair
23 inference that he would be involved in that level of 24 detail. In any event, it's clear in talking about the 25 seminar he's talking about something that did happen, it
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7478
1 involves the ABA. He's talking about a single thing.
2 MR. WHITE: Your Honor, Mr. Trabulus can argue
3 that to the jury and the government can argue that it is
4 hardly unclear, the first question and answer on page 19
5 of the indictment refers to a Who's Who Worldwide
6 seminar. The second one on page 20 specifically refers to
7 Exhibit 176 in that trial which is an exhibit in our
8 trial, and that's a Who's Who Worldwide brochure
9 advertising Who's Who Worldwide's seminar.
10 So if Mr. Trabulus has that argument to the jury,
11 that's fine, he can make it. The
government can make a
12 counter argument. That doesn't mean that it ought to be
13 dismissed.
14 MR. TRABULUS: If you look at what the thrust of
15 the question in the Reed thing was, what they were asking
16 Mr. Gordon was, are you really delivering on your
17 advertising, not when they signed up. He was accused of
18 maybe offering something they weren't delivering on. He
19 wasn't asked how many people signed up. He was being
20 asked did you really deliver and he was giving answers to
21 say, yeah, I really delivered and they really did
22 deliver. It's completely unfair and an outrage to charge
23 him with perjury when nobody asked him, how many people 24 signed up, did you know? He was really testifying 25 truthfully in response to these answers, and the point he
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7479
1 was makin
g was, yeah, we really made this available, we
2 really provided this benefit just as we provided a credit
3 card, just as we provided a discount. It doesn't mean
4 that every member or any member signed up for it. That
5 was the issue in the case, not whether anybody signed up
6 for it. And now they are taking this and in retrospect
7 they are nitpicking and looking for an issue not presented
8 in that litigation and staying because he didn't kind of
9 volunteer it and fix up the problems what really are the
10 ambiguities and the lack of focus in some of the questions
11 put to him perhaps they weren't focused --
12 THE COURT: Mr. Trabulus, please slow down, for
13 goodness sake.
14 MR. TRABULUS: They are saying because he didn't
15 do that, because with the benefit of hindsight, at a time
16 when other issues may become considered relevant, he
17 didn't go back and
look at it in a microscope and qualify
18 his answer to say, yeah, we provided it but nobody showed
19 up except the lawyers. It is accusing him of perjury and
20 it's not right. I don't think it makes out perjury.
21 THE COURT: Well, giving favorable inferences to
22 the government at this stage which I must, I think there's
23 enough to go to the jury and it's a close question. I'm 24 going to let it go to the jury. I'm reserving decision on 25 your motion, Rule 29 motion as to Count 57.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7480
1 MR. TRABULUS: Okay.
2 THE COURT: All right. I think we better recess
3 now until tomorrow morning at 9:30. We'll conclude the
4 motion with the consent of all the lawyers after the
5 afternoon session.
6 MR. WHITE: May I ask one thing? I don't know if
7 it is feasible or if the defense attorne
ys want to do it,
8 so not to slow things down, I tried to anticipate as many
9 as these Rule 29 arguments by the defense as we could and
10 sort of marshal the evidence but with as many weeks of
11 testimony and all the exhibits we have, some of it, some
12 of the arguments you have to pull together, it will take
13 me some time. I don't know if there is anyway I can get a
14 little bit of a preview so I can pull together things that
15 are responsive tonight so we don't waste time tomorrow.
16 THE COURT: Mr. White, a weak case brings strong
17 arguments.
18 MR. WHITE: That's why I want to prepare for
19 them, Your Honor.
20 THE COURT: A weak case to begin with brings
21 strong arguments and that's what you have, in my opinion.
22 MR. WHITE: Strong arguments.
23 THE COURT: No, a weak case. 24 MR. WHITE: I got you. 25 THE COURT: However, you may very
well get to the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7481
1 jury on most of it, but it's not to me impressive. Not
2 that your and Ms. Scott's efforts have been not
3 impressive. In fact, the weaker the case the more
4 impressive the prosecutor's efforts are. But you will be
5 presented with where is the evidence of a conspiracy.
6 MR. WHITE: That I understand. I'm just
7 wondering if there is any other novel issues.
8 THE COURT: Well, the mail fraud counts are
9 replete with issues.
10 MR. WHITE: Right, and I think we've gone all
11 over those.
12 THE COURT: Let's see. Next we have obstruction
13 of justice. The first obstruction of justice is Count 58,
14 that's the logs, right?
15 MR. WHITE: Yes.
16 THE COURT: And then Count 59 obstruction is the
17 bankruptcy petition.
18 MR. WHITE: The issu
e of ownership.
19 THE COURT: Of ownership.
20 MR. TRABULUS: Your Honor, with regard to the
21 latter one, I mean, you want me to start arguing it?
22 THE COURT: No.
23 MR. WHITE: I just need a general ground so I'll 24 be prepared, otherwise I'll be looking through every -- 25 sometimes a little focus will help me so I'm not wasting
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7482
1 time.
2 THE COURT: A little focus will take an hour to a
3 half-hour if Mr. Trabulus does the focusing.
4 MR. WALLENSTEIN: Not at his speed. At his speed
5 he'll be done in ten minutes.
6 THE COURT: Mr. Trabulus, any unique theory that
7 Mr. White would have to do research on?
8 MR. WHITE: Or review all the trial transcript
9 for it.
10 MR. TRABULUS: Your Honor, with regard to the one
11 on ownership, there was testimony by
Mr. Ackerman that it
12 was relevant to any of the determinations in the
13 bankruptcy proceeding. Does that set forth this unusual
14 theory?
15 MR. WHITE: No, that one I already anticipated.
16 Are there any others?
17 THE COURT: How about conspiracy to impair,
18 impede and defeat the Internal Revenue Service?
19 MR. TRABULUS: That's involved, Your Honor.
20 MR. WALLENSTEIN: But my client is not involved.
21 THE COURT: I was afraid of that.
22 MR. TRABULUS: Your Honor, there are a lot of
23 sub-parts there and we also have to talk about specific 24 things that were and were not proven, among the overt 25 acts.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7483
1 THE COURT: It will be very difficult for you to
2 get a preview.
3 Count 61, evasion of tax. Counts 62 through 65,
4 filing of false tax retu
rns. Counts 66 through 69,
5 assisting in the filing of a false tax return. That's for
6 Mr. Reffsin. Counts 70 and 71 and 72, filing false
7 collection information statements. And Count 73, money
8 laundering.
9 Anything unusual?
10 MR. TRABULUS: I don't think it is unusual. I
11 mean, I have arguments on all of them.
12 THE COURT: I think you'll have to wait to hear
13 it, Mr. White.
14 All right. 9:30 tomorrow morning.
15 MR. NELSON: Before we recess for the evening, I
16 anticipate the Court would wish to have the tapes played
17 first before we continue with the Rule 29 arguments so as
18 not to delay the jury.
19 One of the transcripts that I wish to introduce,
20 the government is opposing, I have a copy of that
21 transcript for the Court which I would like to provide at
22 this time. It's marked as Defendant's Exhibit BR off of
23 G
overnment's Exhibit 1321. I made the transcript defense 24 Exhibit BR. I would like to provide a copy to the Court 25 at this time. I believe that the government is opposing
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7484
1 my playing and utilization of the portion of that
2 transcript and possibly we can resolve this before
3 tomorrow.
4 THE COURT: Why are you opposing it, Mr. White?
5 MR. WHITE: I'm sorry, I didn't hear Your Honor.
6 THE COURT: This Defendant's Exhibit BR, Baker
7 Roger. Do you have a copy of that transcript?
8 MR. WHITE: I do. I'm just pulling it out right
9 now.
10 Is the question why am I objecting?
11 THE COURT: Yes.
12 MR. WHITE: Because it's hearsay. There's a
13 self-serving statement here by another employee about what
14 he thinks about the propriety of the company's sales
15 present
ation. I think this is different than the
16 corporate admissions that the government was offering this
17 morning because those were admissions against the
18 corporation. And when you were reading from I think it
19 was Weissenberger on Evidence, you talk about there's a
20 distinction between them offering it or it being offered
21 against the corporation.
22 MR. NELSON: Your Honor, I'm offering the
23 statement against the corporation. I'm offering it under 24 801(d)(2)(E) against the corporation. This is an 25 informant who is working in Who's Who Worldwide who in
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7485
1 essence is saying do you think this is a scam, us working
2 here to an employee of the corporation? And that employee
3 is saying, no, there's absolutely nothing wrong here with
4 what's going on. It might not be worth what
the people
5 are paying for it but I don't perceive it to be a scam.
6 Now, first I would note, Your Honor, that there's
7 been -- that's an understatement, a plethora of vicarious
8 admissions that had been produced as they relate to every
9 single one of the defendants in the case ostensibly as
10 vicarious admissions from the government's claim from day
11 one that we'll connect all of this that there is a
12 conspiracy and introduced as co-conspirators statements
13 and the government has rested and they have not done that,
14 Your Honor.
15 So to some extent they pulled the wool over the
16 eyes of the entire defense team and the entire court
17 claiming they will introduce literally 100 tapes of
18 employees as co-conspirator admissions when in fact none
19 of them were so introduced. They were introduced as
20 vicarious admissions, 80 percent of them were vica
rious
21 admissions of Sterling Who's Who of people working at
22 Who's Who Worldwide and there were statements made when he
23 was even working at Who's Who Worldwide. 24 Here we have an individual who is working as a 25 government informant who is attempting to acquire evidence
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7486
1 that will be a vicarious admission that will come into
2 evidence. You can be sure that had I had this, Mr. Langer
3 said, gee, I find there is something improper here, it
4 would have been immediately admissible against the
5 corporation as vicarious admission. Why would it not be
6 likewise admissible on behalf of a defendant employee
7 under 801(d)(2)(E) as a statement against the party
8 opponent? If they are able to demonstrate and prove my
9 client's good faith reliance upon representations that
10
were made to him by his employer, Mr. Gordon and Who's Who
11 Worldwide. And that's the basis upon which I'm seeking to
12 introduce it.
13 MR. TRABULUS: Your Honor, there's some other
14 things that should be addressed with regard to that
15 statement. It sheds light on the statements which the
16 government has just introduced today. They have had
17 statements where their confidential informant was, you
18 know, engendering conversation about work and the
19 impression, generally when supervisors weren't present and
20 the impression that could be obtained from the evidence
21 that came in today that it was universal thought from
22 people at the working level, the sales level, this was a
23 scam and I think -- 24 THE COURT: But the question is is it 25 admissible? If you put Mr. Langer on the stand he could
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REP
ORTER 7487
1 stay I think it is a great system and I don't think it is
2 a scam or anything else, but here you are offering an out
3 of court declaration for the truth when you do not conform
4 to any exception of the hearsay rule nor do you confirm to
5 801(d)(2)(E) which makes it not hearsay.
6 MR. TRABULUS: Let it not be admissible for the
7 truth. Let's consider it this way. They introduce what
8 purports to be a sample what people were talking about in
9 Who's Who Worldwide. I think we should be able to get
10 across to the jury these informants were out there looking
11 for this kind of stuff and not that they got it whenever
12 they looked for it but they sometimes didn't find it and
13 what is being presented to them is just a selection.
14 We're not offering it to show it wasn't a scam but wasn't
15 representative.
16 MR. NELSON: I would
agree with that.
17 The second basis it goes to state of mind. When
18 we are speaking of state of mind of the declarant, being
19 Elliot Zerring, a government informant working there.
20 This goes to his state of mind and likewise because he's
21 an agent of the government, it goes to the government's
22 state of mind as to the knowledge of the individuals who
23 were working there on a lower level. The people who were 24 being trained by my client at that time because both Mr. 25 Zerring and Mr. Langer were being trained by my client at
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7488
1 that time, they were the new employees who were working
2 for the company. So with a limiting curative instruction
3 that this is being introduced only for the state of mind
4 rather than the truth of the matter, I would ask that it
5 be admissible.
6 MR. WHITE: Admissible for the government's state
7 of mind? I never heard of that. And with respect to
8 Mr. Trabulus' argument, the government didn't argue that
9 what was played was representative in any way. I'm sure
10 they will argue in summation that listen, you only heard X
11 number of tapes and you saw all the informants that were
12 there and you know they were there and hours and hours of
13 tapes and this is all the government has for you. That's
14 fine. They can make that argument. That doesn't mean
15 that something is otherwise hearsay should come in.
16 THE COURT: The rule says, 801(d)(2). Statements
17 which are not hearsay. "A statement is not hearsay if the
18 statement is offered against a party and is a statement by
19 the party's agent or servant concerning a matter within
20 the scope of the agency or employment made during the
21 existence of th
e relationship."
22 Well, I don't know how you can say, Mr. Nelson,
23 that this is being offered against a party when the 24 purpose of it is to support the party. This is not being 25 offered against Who's Who Worldwide or whichever company
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7489
1 was involved here?
2 MR. NELSON: Your Honor, if I understand
3 correctly the most recent rulings of the United States
4 Supreme Court in interpreting 801(d)(2)(E) there was no
5 longer a requirement for purposes of reliability that the
6 statement be against the person's interest.
7 THE COURT: I didn't say that.
8 MR. NELSON: The statement that was made --
9 THE COURT: Excuse me. I didn't say that it has
10 to be against his interest. That's true. Any statement
11 is admissible. Against the interest is totally
12 irrelevant, but it
has to be offered against a party. It
13 has to be in an adversarial position. You are not in an
14 adversarial position by offering this statement. You are
15 supporting this party. You are not offering it against
16 the party.
17 MR. NELSON: Then I'll fall back to point two,
18 the state of mind argument.
19 THE COURT: I don't see that. Who's mind?
20 MR. NELSON: That would be the state of mind
21 first of Elliot Zerring's and as an operative of the
22 government who has already testified that he reported on a
23 daily basis to Inspector Biegelman as to what was taking 24 place and review those tapes on a daily basis with them, 25 by inference, the government's state of mind or of the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7490
1 investigator's state of mind in this case.
2 THE COURT: I never heard that one before. I
3 don't understand why it is his state of mind. I can see
4 that you want to show that Elliot Zerring heard adverse
5 things, rather heard supporting things for the company.
6 MR. NELSON: That's correct.
7 THE COURT: But how could it not be for the
8 truth? It has to be for the truth.
9 MR. TRABULUS: Your Honor, there are issues in
10 this case of intent and intent of the people who were
11 working for these companies and the purport of what has
12 been introduced today by the government. All of these
13 conversations with scams and so forth, whether the general
14 coherency among the salespeople, the people at the bottom
15 was this, was a scam.
16 I think whether or not the Rules of Evidence
17 whether or not they are (a), a limiting instruction is
18 given, they can't infer one person's state of mind from
19 another, but when everybody is talking scam or scammi
ng
20 people the inference is what they are seeing is leading
21 them to believe that and we have a situation what they are
22 seeing leads different people to different conclusions and
23 the government had sent these informants out fishing to 24 get things that are favorable to their position and we 25 should know they didn't always, despite their best efforts
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7491
1 come up with that.
2 They sometimes came up with people who were
3 defending Who's Who Worldwide because these people didn't
4 believe they were committing a fraud.
5 MR. LEE: Just -- can I put in my two cents?
6 THE COURT: Yes, but before you do that I'm
7 saying you are absolutely right but I'll certainly permit
8 you to do in permissible documents, not through documents
9 that are not admissible in evidence.
1
0 MR. NELSON: I have one further argument.
11 MR. LEE: My position is this is circumstantial
12 evidence as to the belief or the state of mind of the
13 declarant, it's not being offered for the truth of the
14 matter asserted. We don't know if it is true or not,
15 whether it is or is not a legitimacy or a scam here,
16 circumstantial evidence of his belief or state of mind.
17 THE COURT: Whose belief?
18 MR. LEE: The declarant. The
19 salesperson-employee and as circumstantial evidence it is
20 just not hearsay, period. So it is not to overcome any
21 hearsay -- it's not hearsay.
22 THE COURT: You say it is offered to show the
23 state of mind of Henry Langer. 24 MR. LEE: His belief that there's nothing wrong 25 here.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7492
1 MR. TRABULUS: It's not so much Henry Langer,
2 Your Honor, it's there was not a uniform state of mind
3 among the employees, among the members of the so-called
4 conspiracy.
5 THE COURT: I certainly will let you prove that
6 or offer -- you don't have to prove anything. Offer
7 evidence showing that. Yes, I will certainly let you do
8 that but this is not admissible, Defendant's Exhibit BR,
9 Baker Roger.
10 MR. TRABULUS: It should be if there's a
11 cautionary, curative instruction given that it is not to
12 be considered for the truth of whether it is a scam or
13 not, but just upon the state of mind in the people in the
14 organization. Then we don't have it coming in as hearsay,
15 we just have it coming in as evidencing the state of mind
16 of that particular person, an inferentially -- it is not a
17 uniform state of mind in the organization.
18 MR. NELSON: If I might add another point as a
19
potential basis f admissibility. That would be Rule
20 803(24), other exceptions. A statement not specifically
21 covered by any of the foregoing exceptions, but having
22 equivalent circumstantial guarantees of trustworthiness,
23 if the Court determines that; (a), the statement that is 24 offered as evidence of a material fact; (b), the statement 25 is more probative on the point for which it is offered
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7493
1 than any other evidence for which the proponent can
2 produce cure through reasonable efforts and; (c), the
3 general purpose of these rules and the interest of justice
4 will best be served by admission of the statement into
5 evidence.
6 I would ask the Court to consider for the
7 foregoing reasons that we've explained and set forth to
8 the Court that under 803(24) that the statement
would be
9 admissible.
10 Certainly it goes to a material issue and that is
11 going to be probably the most material issue for the jury
12 to determine in this case and that is going to be the
13 intent or lack of intent to defraud or knowledge or lack
14 of knowledge on the part of the individual employees of
15 Who's Who Worldwide who were named defendants.
16 On the issue of the probative worth of the
17 statement to some extent the Court has already made a
18 determination of that as it relates to all of the
19 statements that were earlier admitted today as they
20 related to the other employees where there were
21 unfavorable statements made as to that person's state of
22 mind as it relates to the corporation, and third the lack
23 of the availability of this individual Henry Langer as 24 bespoken by my inability to locate him even after going 25 throu
gh some of the records through my investigator at the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7494
1 post office for employment records and the home address of
2 Mr. Langer to potentially call him as a witness.
3 THE COURT: Good move. That was a good move. My
4 compliments.
5 Very rarely is 803(24) the residual hearsay
6 exception used in the in the federal courts. Let me see
7 here.
8 Here's what the law is on that. The residual
9 exceptions, and there are two, one where the declarant is
10 not available which is what you really have here which is
11 804(b)(5), and 803(24) where the declarant is not
12 unavailable -- is available. They both say the same
13 thing. This provides a vehicle for admitting hearsay "in
14 situations unanticipated by the other exceptions but
15 involving equal guarantees of trustworthiness."
16 MR. NELSON: Your Honor I would submit to the
17 Court certainly the same guarantees of trustworthiness as
18 to this statement.
19 THE COURT: Just one minute.
20 MR. NELSON: I apologize, Your Honor.
21 THE COURT: All right. Here's the five factors
22 to be admissible under this rule, and this is going to be
23 the final thing because we're all exhausted here, 24 especially one person. 25 First that the statement must possess
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7495
1 circumstantial guarantees of trustworthiness which must be
2 supported to those specific hearsay exceptions.
3 Well, I think there is trustworthiness. The
4 government has vouched for these tapes. They've offered
5 them and implicitly they've said they are trustworthy, so
6 that is met.
7 MR. WHITE: The government said they are
8 authen
tic, not that the statements made on them are
9 necessarily trustworthy.
10 THE COURT: That's what you say. I say it
11 differently.
12 Second, the statement must be offered as evidence
13 of a material fact. Well, it certainly is a material fact
14 as to whether this whole operation is a scam or whether it
15 is a legitimate operation. So it complies with the second
16 element.
17 Third, the hearsay statement must be "more
18 probative on the point for which it is offered than any
19 other evidence which the proponent can procure through
20 reasonable efforts. " This requirement imposes a duty of
21 diligence on the proponent in seeking better evidence than
22 the proffered hearsay.
23 In determining what constitutes reasonable 24 efforts, the Court should weigh the importance of the 25 evidence, the financial resources available to the
HA
RRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7496
1 proponent and the amount at stake in the actions. Taking
2 these factors into consideration, the Court must find that
3 the hearsay statement is more probative than other
4 available evidence in order to render the statement
5 admissible."
6 Well where is this gentleman? What's his name,
7 Henry Langer? Where is he?
8 MR. NELSON: Judge, the only ability we have to
9 attempt to locate him was to go to the post office, go
10 through the various different employment records. This is
11 an individual who worked for the company for about three
12 weeks in 1995. We were unable.
13 THE COURT: You could not find him.
14 MR. NELSON: We could not find him.
15 THE COURT: Does the government know where he
16 is?
17 MR. WHITE: No, Your Honor.
18 THE COURT: I find that the third requirem
ent is
19 met.
20 Fourth. The proponent of the statement must show
21 that its admission would serve "the general purposes of
22 these rules and the interests of justice. " I think that
23 this statement clearly meets that and for the reasons 24 stated by Mr. Trabulus to even the playing field. 25 And finally the statement is not admissible
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7497
1 unless the proponent notifies the opponent of his
2 intention to offer it. Is this so in a criminal case, I
3 believe so.
4 MR. NELSON: I provided the government a copy of
5 the transcript approximately a week ago.
6 THE COURT: You must after it sufficiently in
7 advance of the trial provides the adversary the
8 opportunity to be prepared to meet it. Did you give him a
9 copy of it?
10 MR. NELSON: Approximately a week ago.
11 MR. TRABULUS: And of course the tape came from
12 the government, Your Honor.
13 THE COURT: The proponent of the evidence.
14 That's you, Mr. Nelson.
15 MR. NELSON: Yes.
16 THE COURT: Offered under the residual exception
17 bears the burden of proving that the five requirements had
18 been satisfied.
19 MR. NELSON: I believe under 104(b) I would be
20 required to demonstrate that by a preponderance of the
21 evidence, Your Honor.
22 THE COURT: Where all the requirements are met
23 the court retains discretion to exclude the statement 24 pursuant to 403. Rule 403, to prevent unfair prejudice, 25 confusion of the issues or undue delay.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7498
1 I find that there is no unfair prejudice. On the
2 contrary, it is fair and equitable to allow it in. I just
3 didn't th
ink it was admissible and it will not confuse
4 anything or cause undue delay.
5 Further, constitutional considerations may bar
6 admission -- well, there is no constitutional
7 consideration.
8 MR. WHITE: Your Honor, I disagree with two of
9 the five factors here. There's nowhere near the
10 equivalent guarantees of trustworthiness as set forth in
11 the other hearsay objection because precisely the reason
12 that these corporate admissions come in against the party
13 as Pappas said it's unlikely that an employee while an
14 employee is there, is something that is damaging to his
15 employer. This is precisely the opposite. This guy is
16 making a self-serving statement. Hey, we're not doing
17 anything wrong when somebody asks don't you think this is
18 a little strange? That has absolutely no guarantees of
19 trustworthiness. It is a self-serving statement. That
20 would not be the case where they say something like the
21 tapes the government played today. With respect to
22 whether it is more probative than the other available
23 evidence, I don't think the inquiry should be limited to 24 just whether they can find this Mr. Langer, if they want 25 to prove in fact they can have as many Who's Who World
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7499
1 Wide employees they want to come in and testify under oath
2 subject to cross-examination, not just Mr. Langer. They
3 can get their point across in other ways.
4 THE COURT: Have you concluded?
5 MR. WHITE: Yes. Except I have to confess I've
6 never had the residual exception used, and again if Your
7 Honor at least will give us the chance to look at it
8 overnight to see if there are any cases.
9 THE COURT: You can do it as long as you do
it by
10 9:30 in the morning and submit it to me earlier than
11 that.
12 I haven't allowed any that I recall. It is very
13 rarely used. Its use is discouraged, but if there ever
14 was a proper use to be used in my opinion this is it.
15 Your objection is overruled, but I'll let you
16 until 9:30 show me otherwise.
17 MR. WHITE: Okay.
18 MR. SCHOER: Very quickly, Judge. I know it's
19 late. There were certain tape transcripts. I believe
20 that the government did not use them during the course of
21 the trial. I have a list of them. I would ask that those
22 transcripts be removed from the jury's volumes of the
23 transcripts, the ones that were not played. 24 MR. WHITE: Why, they are in evidence. We just 25 chose not to play them for the sake of time because they
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 7500
1 were either duplicative or other things.
2 MR. SCHOER: Is it the government's position at
3 the time of deliberations the jury can take in those tapes
4 and play all of the tapes?
5 THE COURT: Are the tapes in evidence?
6 MR. SCHOER: The tapes are in evidence.
7 THE COURT: They can play them.
8 Anything else?
9 9:30 tomorrow morning.
10 (Recess taken.).
11 (Proceedings adjourned.)
12
13
14
15
16
17
18
19
20
21
22
23 24 25
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
