8433 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 19, 1998 11 - - - - - - - - - - - - - - X 9:30 o'clock a.m.
12
13 BEFORE:
14 HONORABLE ARTHUR D. SPATT, U.S.D.J.
15
16 APPEARANCES: 17 For the Government: ZACHARY W. CARTER United States Attorney
18 One Pierrepont Plaza Brooklyn, New York 11201 19 By: RONALD G. WHITE CECIL SCOTT 20 Assistant U.S. Attorneys
21 For the Defendants: NOR
MAN TRABULUS, ESQ. 22 For Bruce W. Gordon 170 Old Country Road, Suite 600 23 Mineola, New York 11501
24 EDWARD P. JENKS, ESQ. For Who's Who, Sterling 25 332 Willis Avenue Mineola, New York 11501
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8434
1 GARY SCHOER, ESQ. 2 For Tara Garboski 6800 Jericho Turnpike 3 Syosset, New York 11791
4 ALAN M. NELSON, ESQ. For Oral Frank Osman 5 3000 Marcus Avenue Lake Success, New York 11042 6 WINSTON LEE, ESQ. 7 For Laura Weitz 319 Broadway 8 New York, New York 10007
9 MARTIN GEDULDIG, ESQ. For Annette Haley 10 400 South Oyster Bay Road Hicksville, New York 11801 11 JAMES C. NEVILLE, ESQ. 12 For Scott Michaelson 225 Broadway 13 New York, New York 10007
14 THOMAS F.X. DUNN, For Steve Rubin 15 150 Nassau Street New York, New York 10038 16 JOHN S. WALLENSTEIN, ESQ. 17 For Mart
in Reffsin 215 Hilton Avenue 18 Hempstead, New York 11551
19 Court Reporter: Owen M. Wicker, RPR 20 United States District Court Two Uniondale Avenue 21 Uniondale, New York 11553 (516) 292-6963 22
23 Proceedings recorded by mechanical stenography, transcript produced by computer-assisted transcription. 24
25 (Case called.)
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8435
1 THE COURT: Where is Ms. Haley?
2 MR. GEDULDIG: I don't know, Judge. I can't
3 answer that question. I don't know, Judge. I know she
4 sometimes has difficulty when the weather is bad.
5 MR. SCHOER: Judge, with respect to Ms. Garboski
6 --
7 THE COURT: I can't hear you.
8 MR. SCHOER: I'm sorry.
9 With respect to Ms. Garboski, she called the
10 Court and I received a message from your courtroom deputy
11 to call her back and I did. She is most concerned that he
12 will not be mad at her.
13 THE COURT: Me mad at people that are late? How
14 could you ever get that impression, Mr. Schoer? If I've
15 given anybody that view, they are absolutely correct, but
16 I'm not going to be mad at her, of course not. She said
17 her car will not start.
18 MR. SCHOER: Her battery -- she indicated that
19 she has been waiting for 45 minutes for a cab to show up
20 and a half-hour for a mechanic and whichever one comes
21 first she will avail herself up.
22 THE COURT: Tell her I'm not in the least bit
23 angry.
24 MR. SCHOER: She told me that she doesn't want to
25 hold up the trial and she would waive her appearance until
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8436
1 she gets here.
2 THE COURT: And you believe she understands that
3 she has a right to be here, that
she has a right to hold
4 up everything until she gets here.
5 MR. SCHOER: Yes, she has heard Your Honor's
6 instructions throughout the trial. I'm competent that she
7 knows what this is all about.
8 THE COURT: We have another missing defendant.
9 MR. GEDULDIG: I spoke with Ms. Haley the last
10 time she had a problem getting here and she indicated if
11 she had a problem again and she would be hopeful it would
12 not, but apparently it has. As Ms. Garboski, she is
13 prepared to state to the Court that she will waive the
14 trial.
15 THE COURT: I would hesitate to do that except to
16 discuss certain questions of admissibility of evidence
17 which I would like to discuss. Do you think she would
18 waive her appearance during that period?
19 MR. GEDULDIG: I do.
20 THE COURT: It actually happens to do with the
21 defendant Gordon. Do you understand that that would have
22 to do with certain admissibility of evidence, Mr. Schoer?
23 MR. SCHOER: That's fine.
24 THE COURT: Then please be seated.
25 I am concerned about, which I was concerned right
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8437
1 from the beginning of the case, about the interplay of the
2 Gordon civil judgment and in a moment of, I suppose, I
3 would not say weakness, that would be awful for me to say
4 that -- by the way, I would like to have Ms. Barnes
5 removed from the courtroom during this discussion.
6 (Ms. Barnes exits the courtroom.)
7 THE COURT: My first inclination when the
8 government wanted to introduce the Gordon, rather, the
9 Who's Who Worldwide Reed Elsevier judgment against Who's
10 Who Worldwide was no. I felt it was not relevant, and
11 even if it was the probative value was far outweighed by a
12 jury, no matter what my curative charge was, telling them
13 that the burden of proof was different, that it had to
14 deal with a copyright infringement case, the issues
15 weren't the same and yet they'll hear it. This concerned
16 me very greatly. I thought that this kind of evidence
17 would be classic 403, confuse the issues -- here's Ms.
18 Haley -- good afternoon -- I mean, good morning, Ms.
19 Haley.
20 DEFENDANT HALEY: I'm sorry.
21 THE COURT: And so I precluded it.
22 As I said under 403, I thought it was classic
23 unfair prejudice to expect a jury to understand the
24 difference in the burden of proof, the difference in the
25 type of case, all they would know is that a federal judge
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8438
1 told Who's Who Worldwide and Gordon not to do this.
2 I was also concerned with the
time element, this
3 was far late in the name. The judgment was when, in
4 1994?
5 MR. TRABULUS: March 1994, Your Honor. I don't
6 have the exact date.
7 THE COURT: The company closed in March of 1995
8 and they went into bankruptcy shortly thereafter. Much of
9 the evidence of the alleged criminal actions were before
10 that time. So all in all I expressed the view very
11 clearly at that time that I was going to exclude it. And
12 the rule reads and it seems to be classic in this type of
13 evidence, although there are cases and I know there are
14 cases in which they allowed it for specific issues. Every
15 time they allow it they say it is not error or it is not
16 an abuse of discretion. They sort of feathered it all the
17 time. They said we don't like it really, but okay, we'll
18 let it get by because it covered a specific issue in the
19 case.
20 The rule says, although irrelevant, evidence may
21 be excluded if it's probative value is substantially
22 outweighed by the danger of unfair prejudice, confusion of
23 the issues or misleading the jury or by considerations of
24 undue delay, waste of time or needless presentation of
25 cumulative evidence. If there ever were evidence that fit
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8439
1 within 403, my view was originally, and I excluded it,
2 then we would get the Sandra Barnes episode and here's
3 where my moment of weakness occurred.
4 Mr. White and Ms. Scott are very persuasive.
5 Ms. Scott comes up with all kinds of cases all the time
6 and Mr. White uses them to great advantage and being the
7 very good lawyer that he is. And so when I said I would
8 allow the Barnes testimony on the question of good faith
9 or evidence of fraudulent intent or whether it was just
10 doing business as usual, and this case, understand this is
11 a close case, very close case. It's a close case whether
12 these defendants went over the line. I'm going to let it
13 go to the jury, but it's a close case, very close.
14 Now, when I decided I would allow the Barnes
15 testimony in if there was evidence of custom and usage and
16 we found in the in camera testimony that not only Marquis,
17 and I'll call them that notwithstanding what they want to
18 be called because I don't know how to pronounce the other
19 one, Marquis Who's Who used lists, I assume they are
20 mailing lists, they didn't call them that, but they are
21 association lists, Dun & Bradstreet lists. While the
22 witness testified that she didn't know about custom and
23 usage no doubt they were a major player and they put them
24 in a brochure which they mailed out to potential
25 customers. My goodness, that's why I allowed it. And Mr.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8440
1 White very astutely said, well, Your Honor, if they will
2 do that I want to have the right to bring in the fact that
3 Gordon and Who's Who Worldwide at least they were told not
4 to do this which would show -- which would nullify their
5 lack of intent, fraudulent intent, to show that
6 notwithstanding the use of mailing lists and also as we
7 find out nomination letters by Marquis Who's Who, they
8 were definitely told not to do this even though it was in
9 March of 1994 after much of the criminal activity had
10 taken place -- the alleged criminal activity.
11 I said, well, I'll not let the judgment in but if
12 we redact it in a certain way I'll let you say that a
13 judge told Mr. Gordon in Who's Who Worldwide
not to do
14 certain things.
15 Then an equally astute lawyer brought up another
16 point which I didn't think about. And Mr. Trabulus said
17 well, if you'll talk about Mr. Gordon and Who's Who
18 Worldwide being told by one judge they can't do it, how
19 about the fact that they were told by another judge they
20 didn't commit a crime by doing it?
21 Well, that was even later in the day, later in
22 the game in 1995. It might bear on some part of the money
23 laundering count. Then Mr. White equally astute -- that's
24 three astutes, said if you'll do that I want to bring up
25 the fact that the Second Circuit told the Judge to go fly
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8441
1 a kite, he was dead wrong.
2 MR. WHITE: Actually, I didn't say that.
3 MR. TRABULUS: It was actually I would have to
4 say that the Second Circuit said that it had to be
5 considered, reconsidered, not that it was wrong.
6 THE COURT: You can interpret it any way you want
7 to interpret it. That would open up in lay language a
8 real can of worms. Can you make a lay jury, if we have
9 trouble understanding what happens, can you imagine a lay
10 jury parsing out this sort of thing as relatively simple,
11 notwithstanding all of this -- I know Mr. Trabulus'
12 request to charge, I'll have to spend a year looking at
13 them and deceiving them, but this is a relatively simple
14 mail fraud case. Can you imagine putting this into the
15 mix? Well, I can't do that. I've changed my mind,
16 Mr. White. I cannot in good conscience or under the law
17 and in view of 403 give them a statement, any judgment,
18 that Who's Who can't do it when I myself told them there
19 was no crime in doing it. And the Second Circuit said "we
20 don't know." That's what they said.
21 So I'm going to, notwithstanding my previous
22 ruling, decline to permit you to do that and I've given a
23 lot of thought about this. I just think that it would be
24 totally confusing, misleading and prejudicial and would
25 also unfairly single out Gordon and Who's Who Worldwide in
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8442
1 this case when we all know in truth that everybody knew
2 about that judgment. I mean, everybody knew they won the
3 case, Who's Who, Reed, won the case and it is a matter of
4 public record. Anybody can go and take a look at that
5 judgment and see what that federal judge said, just like
6 what I said. For all of those reasons and mainly 403, I
7 will exclude it.
8 MR. WHITE: Your Honor, frankly, obviously Your
9 Honor's change of heart takes us by surprise. Will yo
u at
10 least give me the opportunity sort of to collect our
11 thoughts and later try to explain why I think Your Honor's
12 reasoning at least on this point is not correct?
13 THE COURT: Sure.
14 MR. WHITE: And would not be confusing.
15 THE COURT: Sure. I told you you could always
16 bring that to my attention before the jury is discharged.
17 Even after a verdict you can bring it to my attention.
18 MR. WHITE: Your Honor, you left out in your
19 chronology the very first time it was raised pretrial Your
20 Honor looked at the defendants and said, well, why isn't
21 that relevant to their intent?
22 THE COURT: It shows you how wrong you can be at
23 times, right? Didn't Shakespeare say "to err is human and
24 to" something "is devine." Didn't he say that?
25 MR. WHITE: I would also -- I mean, I'd like the
OWEN M. WICKER, RPR OFFICIAL COURT REPORT
ER 8443
1 chance to make sort of a more detailed argument, but I
2 would also point out Mr. Trabulus' slight of hand trying
3 to say, oh, if you let in Magistrate Jordan's order we'll
4 have to let yours in. They are not equivalent. The first
5 reason being Magistrate Jordan found it wasn't a crime,
6 just found it was misleading. Your Honor's opinion found
7 it was misleading too. You used that word, it was
8 misleading.
9 THE COURT: But no crime.
10 MR. WHITE: But no crime.
11 THE COURT: What are we here for, misleading
12 things or criminal things?
13 MR. WHITE: No. If, Your Honor, if a judge, any
14 judge had determined something was criminal, I wouldn't
15 ask you to instruct the jury to that effect but certainly
16 you tell them that a judge told Mr. Gordon it was
17 misleading, that's relevant, they can draw an inference of
18 that for intent. So in that respect your opinion and
19 Magistrate Jordan's are not.
20 THE COURT: I'll give you an opportunity to let
21 you do that. But I've given it considerable thought. It
22 would raise such a can of worms, such misleading, and
23 divert this jury completely from what they should know.
24 "Was this false representations with intent to deceive to
25 obtain money or property?" That's what this case is
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8444
1 about, that part of the case is about.
2 Now, shall we proceed, Mr. Schoer?
3 MR. SCHOER: Yes, Judge, we can proceed.
4 THE COURT: And you are sure that Ms. Garboski
5 has approved our proceeding without her?
6 MR. SCHOER: Yes, I've spoken to her on the
7 phone.
8 THE COURT: And there is no guarantee when she
9 will be here?
10 MR. SCHOER: That's
right.
11 THE COURT: If no one else objects.
12 MR. WHITE: I don't object, I want to make one
13 comment though. Mr. Neville gave me a stack of documents
14 he apparently intends to use today. I think it is clear
15 he is going far afield and is not following Your Honor's
16 instructions as far as custom and usage.
17 THE COURT: Mr. White, I've very diligently
18 objected to him going far afield, you haven't been.
19 MS. SCOTT: We objected initially, Your Honor.
20 THE COURT: You have to keep objecting.
21 MR. WHITE: Your Honor, I understand that. There
22 is a certain trial tactic to not be objecting to this kind
23 of evidence on the part of the government.
24 THE COURT: Okay.
25 MR. WHITE: But that presupposes that Mr. Neville
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8445
1 will follow your instructions which he has repeat
edly
2 ignored.
3 THE COURT: Mr. White, I am the last person in
4 the world to obstruct your trial tactics and if it is your
5 trial tactics to let him to get into these totally
6 irrelevant matters that are prolonging unnecessarily the
7 trial and raising issues that have nothing to do with this
8 case, don't object. I'm not going to let him do it
9 though.
10 MR. WHITE: That's my point. That's fine. I'm
11 not objecting because I was assuming Mr. Neville would
12 follow your instructions.
13 THE COURT: But he hasn't. What will you do,
14 remain silent?
15 MR. WHITE: Well, all right, I'll object more.
16 But I had to rely on the fact that Mr. Neville would
17 follow your instructions.
18 THE COURT: We're going around in circles now.
19 Let's bring in the jury.
20 Mr. Neville, you stay to the point, and the point
21 is the knowledge
about the mailing lists and that's why I
22 allowed this witness to testify. I'm not getting into the
23 running of their business and otherwise, how much money
24 they make and everything else. I'll not retry the other
25 case.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8446
1 Do you understand, Mr. Neville?
2 MR. NEVILLE: Yes, I do understand.
3 THE COURT: Okay. Should I mention anything to
4 the jury that Ms. Garboski has car trouble? They'll not
5 see her.
6 MR. SCHOER: You can.
7 THE COURT: And that she was nice enough to say
8 to proceed without her.
9 MR. SCHOER: That's fine.
10 THE COURT: Ms. Barnes, step up.
11 (Sandra Barnes resumes the stand.)
12 THE COURT: Ms. Barnes, it's our practice in the
13 Eastern District to rise when they enter the courtroom and
14 leave. You remained seated yesterday beca
use you didn't
15 know that.
16 THE WITNESS: I didn't know that, Your Honor.
17 THE COURT: All right.
18 (Jury enters.)
19 THE COURT: Good morning, members of the jury.
20 Please be seated.
21 I have to tell you that you did a good job
22 getting here. I had to speak to the lawyers about some
23 matters and we're sorry we had to delay until now. Your
24 patience is exemplary. Every time I go in to see you
25 there are smiles on your faces or most of your faces.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8447
1 I want to tell you that the defendant Tara
2 Garboski had car trouble, can't start her car and is
3 waiting for a cab or a car service to take her here, and
4 although she has a constitutional right to be present
5 during every part of the trial, she said no, go ahead, I
6 waive my appearance. And her lawyer, Mr.
Schoer, has
7 communicated that to me.
8 Is that correct, Mr. Schoer?
9 MR. SCHOER: Yes.
10 THE COURT: So we'll go ahead. So when you see
11 that she is not here, believe me she wants to be here.
12 You may proceed.
13 (Continued.)
14
15
16
17
18
19
20
21
22
23
24
25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8448 Barnes-direct/Neville
1 S A N D R A B A R N E S , having been previously sworn
2 by the Clerk of the Court, was examined and testified as
3 follows:
4 DIRECT EXAMINATION
5 BY MR. NEVILLE: (Continued.)
6 Q Ms. Barnes, do you remember yesterday we were talking
7 about mailing lists and the use of mailing lists by your
8 company?
9 A Yes.
10 Q And we spoke about various other public corporations
1
1 that your company did business with to rent lists?
12 A Yes.
13 Q And we spoke about a place called Concept One in
14 Cattown, New York?
15 A Yes, we did.
16 Q And in the contention of the mailing lists and the
17 fact that your company -- withdrawn.
18 When you dealt, when your company dealt with
19 Concept One in renting these lists, was it a secretive
20 thing, was it a top secret thing?
21 A I don't know what you mean.
22 Q Let me ask you this. If somebody at Concept One,
23 somebody who works there and puts together compilations of
24 names for mailing lists that your company used, if they
25 were to tell their loved ones or friends that Marquis
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8449 Barnes-direct/Neville
1 Who's Who uses mailing lists, they wouldn't be breaking
2 rulings?
3 A It's my understanding list
brokers are supposed to
4 have some integrity and don't discuss what the clients ask
5 for.
6 Q Was there any contract or any sort of document in
7 writing that holds list brokers to silence?
8 A I don't know. I don't know.
9 Q You also, as publisher and --
10 THE COURT: Uhm, not be offended if he calls it
11 Marquis or Marcus or anything else.
12 THE WITNESS: No, librarians, some call it
13 Marquis and Marcus.
14 THE COURT: Okay.
15 BY MR. NEVILLE:
16 Q Isn't the correct French pronunciation a silent S,
17 Marquis?
18 A We pronounce it Marcus.
19 Q Now, your job as publisher and president of Marquis
20 Who's Who, you signed off on purchase orders for these
21 mailing lists, didn't you?
22 A Yes.
23 Q And I'll show you what has been marked as Defendant's
24 Exhibit FL for Identification.
25 I'll ask you to look at
what has been marked as
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8450 Barnes-direct/Neville
1 Defendant's Exhibit FL for Identification, and ask you if
2 you recognize that?
3 A It is a purchase order and it has my signature, yes.
4 Q Now, look at each one. There are various documents
5 there, just page through them quickly.
6 Does each and every one have your signature on
7 the bottom?
8 A (Perusing.) Yes.
9 Q So as the publisher and president of Marquis Who's
10 Who, you had knowledge of these purchase orders.
11 Obviously you signed them also, correct?
12 A It was a practice to sign off on dollars that were
13 spent by the company, so, yes, I signed because we were
14 spending money.
15 Q By signing it at bottom that connotes you had
16 reviewed it and approved it and --
17 A No.
18 Q No.
19 A No.
I just look at dollar amounts and make sure they
20 fall within the guidelines.
21 Q So wouldn't that be called approving it?
22 Okay. I'll withdraw that.
23 Were these purchase orders kept in the course of
24 regularly conducted business activity at Marquis Who's
25 Who?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8451 Barnes-direct/Neville
1 A Yes.
2 Q Was it in the regular practice of that business
3 activity at Marquis Who's Who to maintain those documents?
4 A Purchase orders, yes.
5 MR. NEVILLE: I offer them, Your Honor.
6 THE COURT: Any objection?
7 MR. WHITE: Yes, Your Honor.
8 THE COURT: What ground?
9 MR. WHITE: Foundation and relevance.
10 THE COURT: What is wrong with the foundation,
11 Mr. White?
12 MR. WHITE: Number one, he hasn't described who
13 prepared them.
14 THE COURT: Who
prepared them? Overruled.
15 What else?
16 MR. WHITE: And relevance.
17 THE COURT: No. Overruled.
18 Defendant's Exhibit FL, Fox Lion, in evidence.
19 (Defendant's Exhibit FL received in evidence.)
20 BY MR. NEVILLE:
21 Q Ms. Barnes, these purchase orders lists, actual
22 lists, if you will, that your company rented for a dollar
23 amount that your company used to send out mailings?
24 A They may or may not have used them. These are -- it
25 is an order that was placed.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8452 Barnes-direct/Neville
1 Q But the fact that you signed off on these purchase
2 orders means that indeed Marquis Who's Who paid money to a
3 list broker and got these different lists?
4 A Not necessarily because that would have been paid by
5 an invoice.
6 Q Okay.
7 Well, when you signed off at the
bottom -- when
8 you said you signed off at the bottom it meant that you
9 had looked at this and you had to put your name on a
10 document which would allow money to be released from the
11 company to pay a list broker, right?
12 A Not necessarily. It is money that would have been
13 expended if the order went through and if we used it -- as
14 any purchase order. We don't pay from a purchase order,
15 you pay from an invoice.
16 Q Now, McMillan owned Marquis Who's Who at one time?
17 A Yes.
18 Q Before or after Robert Maxwell?
19 A Before.
20 Q So a purchase order through the McMillan directory,
21 Marquis Who's Who, that doesn't mean that something is
22 being purchased?
23 A Doesn't mean that it was delivered and that you paid
24 for it.
25 Q Fine.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8453 Barnes-direct/N
eville
1 You're saying just by looking at this purchase
2 order that we don't know whether in fact Marquis Who's Who
3 received the list of the economist subscribers, 5,500 of
4 them, in the amount of $750?
5 A No, we don't know.
6 Q You don't know that. Okay.
7 But this is the kind of thing that would be
8 produced at McMillan, when McMillan owned the company to
9 rent these lists?
10 A That would be the initial step.
11 Q There would be -- withdrawn.
12 Some purchase orders in fact were brought to
13 fruition, if you will, and money was paid and lists were
14 rented and mass mailings were sent out, no?
15 A Yes.
16 MR. NEVILLE: May I publish this to the jury,
17 Your Honor?
18 THE COURT: Yes.
19 BY MR. NEVILLE:
20 Q Now, other mailing lists that you used, you testified
21 to were of different associations; is that ri
ght?
22 A We do use association lists.
23 Q I'm going to ask you to take a look at what has been
24 marked as Defendant's Exhibit FJ, and ask you if you
25 recognize it?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8454 Barnes-direct/Neville
1 Take your time. Page through it.
2 A (Perusing.) I recognize that this is a document
3 prepared by somebody at my company.
4 Q Well, is it a document that concerns lists?
5 A It's a document that concerns how data mailings are
6 put together.
7 Q And what are data mailings?
8 A Data mailings are mailings that are used to collect
9 data on people.
10 Q Can you just look at that document in its entirety
11 and can you describe with a general title what that
12 document is or what those documents are? I mean, if
13 somebody put that on your desk as publisher of Marquis
14 Who'
s Who with a Post-it, they may say, Ms. Barnes, please
15 review this and what would it be called?
16 A I really don't know what it would be called. It's
17 something that somebody has put together.
18 Q Well, what does it include?
19 A It has association lists that are mailed, directories
20 that are used, educational information.
21 THE COURT: Well, don't tell us what it has.
22 Do you know what that is, is the question? Is it
23 a receipt, is it an invoice, is it a telegram?
24 THE WITNESS: No, it's just a document --
25 THE COURT: Is it a menu to the nearest
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8455 Barnes-direct/Neville
1 restaurant?
2 THE WITNESS: It's a document that was put
3 together by somebody in Marquis Who's Who as a data
4 mailing. It describes--
5 THE COURT: It's not a regular document like an
6 inv
oice, ledger?
7 THE WITNESS: No.
8 THE COURT: Memorandum.
9 THE WITNESS: No. It's a compilation of certain
10 documents.
11 THE WITNESS: Yes.
12 THE COURT: You recognize them as Marquis'
13 documents?
14 THE WITNESS: Yes, because they have the name
15 Marquis at the top.
16 THE COURT: Okay.
17 BY MR. NEVILLE:
18 Q Have you ever seen anything that looks like that?
19 A I didn't see this until today.
20 Q Have you ever seen any other documents that are
21 similar?
22 A To the entire document?
23 Q Just in general, those documents?
24 A Two pieces of the document.
25 Q Which two pieces?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8456 Barnes-direct/Neville
1 A The listee buyer occupation.
2 MR. NEVILLE: What I will do, if I may, separate
3 out --
4 THE COURT: Before you
do that lay a foundation.
5 You may not have to separate it.
6 BY MR. NEVILLE:
7 Q This document, this listee buyer occupation analysis,
8 is a document that you are familiar with or that you were
9 familiar with as publisher of Marquis Who's Who?
10 A Yes.
11 Q And even though you yourself may not have actually
12 made or compilated this, you certainly are familiar with
13 it and know what it all means?
14 A I'm familiar with it.
15 Q You probably have seen many, many, maybe even
16 hundreds of these listee occupation and analysis
17 information?
18 A I don't know if I've seen hundreds.
19 Q The document is familiar to you?
20 A It's familiar.
21 Q Was that document important to you as publisher and
22 president of Marquis Who's Who in terms of listee
23 identification and analysis and revenue and all of those
24 issues you testifi
ed about yesterday?
25 A Pieces of it. It doesn't include everything that you
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8457 Barnes-direct/Neville
1 need in order to make determinations.
2 Q But it would be a document that you would use, one of
3 the other documents you would use to make your decisions,
4 your executive decisions as president and publisher?
5 A It's a document that the information is used to put
6 the indexes at the back of the books by occupation.
7 Q Now, that listee buyer occupation analysis is kept in
8 the course of regularly conducted business activity of
9 Marquis Who's Who?
10 A Yes, they are in the published books. The break down
11 of how many there are.
12 Q But this document itself is a document that is kept
13 in the regularly conducted business of Who's Who?
14 A We do have that information.
15 Q
And was it the regular practice of your business at
16 Marquis Who's Who to make and maintain those documents?
17 A Periodically.
18 MR. NEVILLE: I offer them, Your Honor. I offer
19 this one page. I'm sorry, that's what I was getting to
20 earlier. I would like to offer the one page that
21 Ms. Barnes identified.
22 THE COURT: Show it to counsel.
23 MR. WHITE: Your Honor, may I ask the witnesses
24 some questions here?
25 THE COURT: Sure.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8458 Barnes-voir dire/White
1 VOIR DIRE EXAMINATION.
2 BY MR. WHITE:
3 Q Do you know who prepared this?
4 A No.
5 Q Do you know how it was prepared?
6 A No.
7 Q So you don't know whether the process by which this
8 was gathered was some reliable process or some unreliable
9 process?
10 A I didn't prepare it and I di
dn't see who prepared it.
11 Q So you have no idea whether the information here or
12 how it was compiled?
13 A No.
14 Q The date on this is all -- let me show it to you,
15 August 7, 1995; is that right? Am I reading that
16 correctly?
17 A Yes.
18 MR. WHITE: Your Honor, I have, again, a
19 foundation and relevance objection.
20 THE COURT: May I see it?
21 Objection sustained on relevance.
22 MR. WHITE: Thank you.
23 THE COURT: And perhaps on foundation. But
24 mostly relevance.
25 Go ahead.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8459 Barnes-direct/Neville
1 BY MR. NEVILLE:
2 Q That document, Ms. Barnes, was a document you would
3 use to analyze -- withdrawn.
4 When you put out one of your books, you look at
5 lists of occupations of people who were listees in the
6 books, right?
7 A When we put out specific --
8 THE COURT: All right. Sustained.
9 Q Ms. Barnes, I'm going to ask you to look at --
10 MR. NEVILLE: Now, I'm confused.
11 Q Yesterday I guess it was Defendant's Exhibit FC,
12 Frank Charlie, and I ask you to look at it.
13 THE COURT: Is that in evidence?
14 MR. NEVILLE: No, it's not in evidence, Your
15 Honor.
16 BY MR. NEVILLE:
17 Q Do you recognize it?
18 A You showed it to me yesterday.
19 Q Do you recognize it?
20 A From yesterday, I recognize it.
21 Q Never saw it before yesterday?
22 A Never saw it before yesterday.
23 Q Never saw anything like it before yesterday?
24 A Not that particular document.
25 Q Ever see a document like it before yesterday?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8460 Barnes-direct/Neville
1 A That's not what I typically did
, no.
2 Q You were the publisher and you were concerned with
3 the revenues of the Marquis' publications, right?
4 A Yes.
5 Q And part of the way you worked on the revenue for the
6 Marquis revenues was to send out mass mailings based on
7 lists that your company would rent from list brokers and
8 other organizations or companies?
9 A In every company the president doesn't do every daily
10 task, you have people do them for you.
11 Q But if you as president had decided that you wouldn't
12 use list brokers anymore and you would make the executive
13 decision not to do that, and provided Mr. Reed or whoever
14 above you agreed, your company would stop using list
15 brokers, wouldn't they?
16 MR. WHITE: Objection.
17 THE COURT: Sustained.
18 BY MR. NEVILLE:
19 Q You were responsible for what the people who were
20 supervised by you did, weren'
t you?
21 MR. WHITE: Objection.
22 THE COURT: Sustained.
23 Q I'll ask you to take a look at Defendant's Exhibit FD
24 for Identification.
25 Do you recognize that?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8461 Barnes-direct/Neville
1 A From yesterday, yes.
2 Q Concept One is the list broker?
3 A That's what it says at the top.
4 Q Ms. Barnes, when you were president and publisher of
5 Marquis Who's Who, did you ever look at this kind of
6 document from a list broker?
7 A Generally after the list manager secured the
8 information, sometimes I would review it.
9 Q When you say "secured the information," it means
10 after she got it?
11 A After she got it.
12 Q And you would take a look at it?
13 A From time to time.
14 Q And approve whether or not a certain document is
15 okay.
16 A
Occasionally, not always.
17 Q What was her name, Debbie Krom, K-R-O-M?
18 A Yes.
19 Q She was the list expert?
20 A Yes.
21 Q And she worked for you?
22 A Yes.
23 Q And she took executive orders from you?
24 A No, there was another person that she actually -- she
25 didn't report directly to me, to the marketing director.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8462 Barnes-direct/Neville
1 Q Did the marketing director then report to you?
2 A Yes.
3 Q So ultimately you were responsible for what Debbie
4 Krom did?
5 A Ultimately I guess I was responsible for what Debbie
6 Krom did. But she had a job and she got paid to perform.
7 Q Now, if Debbie Krom came to you and said -- did she
8 call you Sandy or Ms. Barnes?
9 MR. WHITE: Objection.
10 THE COURT: Sustained.
11 BY MR. NEVILLE:
1
2 Q Ms. Barnes, she says, this Scientific American list,
13 should we use it, did she ever ask you a question like
14 that?
15 A No.
16 MR. WHITE: Objection.
17 THE COURT: Sustained. Strike out the answer.
18 BY MR. NEVILLE:
19 Q Did she ever come to you and say I don't know whether
20 we should get this list of active subscribers of the
21 economists?
22 MR. WHITE: Objection.
23 THE COURT: Sustained. Desist.
24 Q Ms. Barnes, did your company, did Marquis Who's Who
25 ever send out -- we talked about this yesterday -- the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8463 Barnes-direct/Neville
1 letters, the galley proofs that we talked about, the
2 letters that talk about "Dear Marquis nominee"? Do you
3 remember we talked about that yesterday?
4 A We talked about galley letters, yes.
5 Q A galley letter is a let
ter that goes out telling a
6 person who has been contacted by your company and then
7 approved by your company that they are a possible listee
8 or nominee in your company, right?
9 A These are not galley letters.
10 Q Is that what happens before the galley letter is
11 actually a finished product?
12 Well, let me ask you this, Ms. Barnes. Does this
13 document here look like a galley proof?
14 A No.
15 Q Not at all?
16 A No.
17 Q Not at all?
18 A It's a letter. There's a separate form for a galley
19 proof.
20 Q Then we'll call it a letter.
21 Who is it addressed to?
22 A This is a letter addressed to people who are being
23 considered for publication, they've passed the initial
24 screen.
25 Q Does it say, "Dear Marquis nominee"?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8464 Barnes-direct/Nevi
lle
1 A It does.
2 Q Is that your handwriting?
3 A Yes.
4 Q Is that your handwriting --
5 MR. WHITE: Excuse me. Can Mr. Neville tell me
6 what he's showing the witness, an exhibit number maybe.
7 THE COURT: Yes, tell us what document that is.
8 MR. NEVILLE: Showing FN for Identification.
9 It's page 490 of the documents --
10 MR. WHITE: Let me see what it looks like.
11 MR. NEVILLE: (Handing.)
12 BY MR. NEVILLE:
13 Q Let me ask you to take a look at Defendant's Exhibit
14 FN for Identification. Just look at that first page, the
15 top, the cover page.
16 Is that your handwriting there?
17 A It looks like my handwriting.
18 Q Did you ever write on the front of a document the
19 names of certain people and then the word "only" below
20 them?
21 A Only?
22 Q (Handing.) Is "only" the name of somebody in your
23 company?
24 A That means there were just two people who should have
25 been copied on my notes of the many people that were in
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8465 Barnes-direct/Neville
1 the distribution.
2 Q So this document was an internal memo at Marquis
3 Who's Who?
4 A Yes.
5 Q And it came from someone and it originally was
6 directed to you first?
7 A It was directed to me along with several other
8 people.
9 Q But your name is at the top of the list?
10 A Because I'm B.
11 Q What is that?
12 A Because it is alphabetical.
13 Q Nothing to do with hierarchy?
14 A I don't know.
15 Q Did Stan Walker have a position as high up as you
16 did?
17 A His was higher.
18 Q How about Marilyn Canning, C-A-N-N-I-N-G?
19 A No.
20 Q Now, this document as you said the
y are letters and
21 they are sent out, letters that in their final forms are
22 sent out to prospective listees?
23 A Multitude of letters here.
24 Q What is the first one?
25 A The very first one is a letter that is going out to
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8466 Barnes-direct/Neville
1 somebody who passed the initial screening and their sketch
2 has been written.
3 Q Is there any information towards the bottom of that
4 first page of the letter about prices and money and things
5 like that?
6 A We offer them --
7 MR. WHITE: Objection.
8 THE COURT: Sustained. Strike out the answer.
9 BY MR. NEVILLE:
10 Q In any of these documents, these letters that would
11 be sent out to prospective nominees, did you ever have any
12 sales language in there like "respond within 15 days,"
13 "respond quickly," "
get the special price," things like
14 that?
15 A It wasn't a sales message, it was so that we could
16 get the editorial data done in time for the book.
17 Q So it had nothing to do with encouraging people to
18 buy?
19 A No, it took 18 months to compile our publications.
20 Q Had nothing to do with encouraging people to buy and
21 getting cash in?
22 A No.
23 Q Nothing at all?
24 A No.
25 Q You said to be listed in the book didn't cost
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8467 Barnes-direct/Neville
1 anything, right?
2 A It doesn't cost anything to be listed.
3 Q Now, do you remember yesterday we spoke about these
4 lists, these lists, distribution lists where you as
5 president and other people at your company would look at
6 lists of groups of mailings that would go out where you
7 would anal
yze how many pieces were mailed and how many
8 pieces were returned and how many orders you got out of
9 the people who returned?
10 MR. WHITE: Objection.
11 THE COURT: Sustained.
12 BY MR. NEVILLE:
13 Q You would have, for example, for Who's Who in
14 American Law you would have a list showing the mailing
15 lists that you would use from which publications, how many
16 went out, how many were returned and the percentage of
17 returns based upon how many went out?
18 MR. WHITE: Objection.
19 THE COURT: Sustained. Desist.
20 MR. NEVILLE: Your Honor, I thought it was okay
21 to talk about the lists.
22 THE COURT: You've talked about it. The witness
23 already testified about it.
24 Do you have any documents you want to put in on
25 that subject, put them in. We're not going into the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
8468 Barnes-direct/Neville
1 business of Marquis Who's Who and how they run it and who
2 owned it or who transferred ownership of it or any of
3 these things which are not relevant.
4 BY MR. NEVILLE:
5 Q This document, FK, concerns specifically, does it
6 not, Ms. Barnes, --
7 A Concerns what?
8 Q Are you okay?
9 A Yes.
10 Q Does it concern mailing lists?
11 A This document lists names of mailing lists.
12 Q Who's Who in Finance and Industry, for example?
13 A That's the title.
14 THE COURT: When you say "this document," is
15 there a letter to it?
16 MR. NEVILLE: Well, it's all part of FK for
17 Identification.
18 BY MR. NEVILLE:
19 Q And the magazine, The Economist, was one of the
20 subscriber lists that your company used, one of the
21 mailing lists?
22 A It's listed on that document.
23 Q
If it's listed on that document, does that mean your
24 company listed it?
25 A If it said mailed.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8469 Barnes-direct/Neville
1 Q Mailed?
2 A Yes.
3 Q So as an example, 21,000 or so could be mailed out
4 and 494 would be returned (perusing.)
5 MR. WHITE: Objection.
6 THE COURT: Sustained.
7 MS. SCOTT: Your Honor, I would like to add that
8 I'm having difficulty hearing Mr. Neville.
9 THE COURT: All right. Mr. Neville, keep your
10 voice up.
11 MR. NEVILLE: Okay.
12 BY MR. NEVILLE:
13 Q When you would send up these documents with these
14 mailing lists, these mass mailings, did you get 100
15 percent return?
16 MR. WHITE: Objection.
17 THE COURT: Sustained.
18 Q This was an exclusive publication that you put out,
19 wasn't it?
20 MR.
WHITE: Objection.
21 THE COURT: Sustained.
22 Mr. Neville, if you have no other relevant
23 questions, I'll ask you to sit down.
24 Q Ms. Barnes, is your company represented by attorneys?
25 MR. WHITE: Objection.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8470 Barnes-direct/Neville
1 THE COURT: Sustained.
2 BY MR. NEVILLE:
3 Q Last night after court, Ms. Barnes, did you meet with
4 Mr. White?
5 A No.
6 Q Did you meet with Ms. Scott?
7 A No.
8 Q Did your lawyer meet with Ms. Scott or Mr. White?
9 A I don't know.
10 Q Did you talk with your lawyer yesterday after your
11 testimony?
12 MR. WHITE: Objection.
13 THE COURT: Overruled.
14 A Yes.
15 Q How many lawyers do you have here in the courtroom
16 for you?
17 A One.
18 MR. WHITE: Objection.
19 THE COURT: Sus
tained. Strike out the answer.
20 BY MR. NEVILLE:
21 Q Is that Mr. Bailey who is sitting right over here?
22 MR. WHITE: Objection.
23 THE COURT: Overruled.
24 Q Mr. Bailey right over here (indicating)?
25 A Yes, that's Mr. Bailey.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8471 Barnes-direct/Neville
1 Q And that's Reed's lawyer? Excuse me, one of Reed's
2 lawyers?
3 A He's not an employee of Reed.
4 Q He works for a law firm?
5 A Yes.
6 Q That's hired by Reed?
7 A Yes.
8 Q While you were testifying yesterday and today, could
9 you see Mr. Bailey from where you were seated?
10 MR. WHITE: Objection.
11 THE COURT: Sustained.
12 BY MR. NEVILLE:
13 Q Did you see him taking notes?
14 MR. WHITE: Objection.
15 THE COURT: Sustained.
16 Q Did you ever see him hand any notes to Mr. Whit
e?
17 MR. WHITE: Objection.
18 THE COURT: Sustained.
19 Desist.
20 Q Have you ever heard of a man named Marty Biegelman?
21 MR. WHITE: Objection.
22 THE COURT: Sustained.
23 Q Have you talked to him?
24 A No.
25 MR. WHITE: Objection.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8472 Barnes-direct/Neville
1 THE COURT: Sustained. Desist.
2 All right. Mr. Neville, please sit down.
3 MR. NEVILLE: I have one more question, Your
4 Honor.
5 BY MR. NEVILLE:
6 Q You used mailing lists in your company, right?
7 MR. WHITE: Objection.
8 THE COURT: Overruled.
9 A I said yes yesterday and I said yes the day before.
10 Yes, we used mailing lists as a source.
11 Q Have you ever been visited by Marty Biegelman?
12 MR. WHITE: Objection.
13 THE COURT: Sustained.
14 Mr. Neville, be seated
now.
15 Anybody else?
16 MR. SCHOER: Yes. May we just have a second,
17 please?
18 THE COURT: Yes. Mr. Schoer, I don't want
19 repetitive testimony.
20 MR. SCHOER: I'll try not to.
21 THE COURT: And stay to the relevant issues as
22 I've outlined them to you.
23 MR. SCHOER: I hope I will be able to do that.
24 THE COURT: You wanted a moment, did you say?
25 MR. SCHOER: Yes, just to speak to Mr. Neville.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8473 Barnes-cross/Schoer
1 THE COURT: Sure. Go ahead.
2 (Counsel confer.)
3 CROSS-EXAMINATION
4 BY MR. SCHOER:
5 Q Ms. Barnes, good morning.
6 A Good morning.
7 Q I'm going to show you what Mr. Neville had marked as
8 Defendant's Exhibit FK.
9 Is that a document kept in the ordinary course of
10 business of Marquis Who's Who?
11 A (P
erusing.) Yes.
12 Q And --
13 A Yes.
14 Q And is it the ordinary course of your business of
15 your company to keep records like that?
16 A Yes.
17 MR. SCHOER: Your Honor, I would offer Exhibit
18 FK.
19 THE COURT: Show it to counsel.
20 MR. SCHOER: I believe Mr. White has a copy.
21 MR. WHITE: No objection, Your Honor.
22 THE COURT: Defendant's Exhibit FK, Fox King, in
23 evidence.
24 (Defendant's Exhibit FK received in evidence.)
25 BY MR. SCHOER:
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8474 Barnes-cross/Schoer
1 Q Now, Mrs. Barnes, Reed Elsevier owns a company named
2 Bowker as well, R.R. Bowker, B-O-W-K-E-R?
3 MR. WHITE: Objection.
4 THE COURT: Sustained.
5 Q Did the use the name Who's Who, the words "Who's
6 Who," is that exclusive to Marquis?
7 MR. WHITE: Objection.
8 THE COURT: Sustained.
9 Ms. Barnes, when you see Mr. White rise to his
10 feet, that means he's about to make an objection. Please
11 don't answer them until I rule on it.
12 THE WITNESS: Okay.
13 MR. WHITE: I'll try to be faster.
14 THE COURT: You should be faster.
15 BY MR. SCHOER:
16 Q Are you aware of the fact that there are hundreds of
17 publications that use the name Who's Who?
18 MR. WHITE: Objection.
19 THE COURT: Sustained. Desist.
20 Q You talked about mailing lists; is that correct?
21 A I answered questions about mailing lists.
22 Q You're right. You answered questions about mailing
23 lists.
24 Is it fair to say that the mailing lists that
25 were used by Marquis were ordered and then the lists went
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8475 Barnes-cross/Schoer
1 directly to mailing houses
as opposed to coming into
2 Marquis itself?
3 A No, that's not fair to say.
4 Q Okay.
5 Do you know whether Marquis reviewed the mailing
6 lists before mailings were made?
7 A I don't know.
8 Q Do you know whether or not at times mailing lists are
9 not accurate?
10 A I don't know that.
11 Q I would like to show you what I'll mark as
12 Defendant's Exhibit FN -- I'm sorry, I'll mark it FO.
13 THE COURT: Are we waiting for something?
14 MR. SCHOER: I'm showing it to Mr. White before I
15 show it to the witness.
16 MR. WHITE: I haven't seen it before, Your
17 Honor.
18 BY MR. SCHOER:
19 Q Ms. Barnes, do you recognize that as I think you
20 called it a data mailing? That is a data mailing?
21 A That is a letter to a data mailing.
22 Q It's a letter and with that is a form that somebody
23 fills out and then sends back
to Marquis; is that fair?
24 A The form is not here.
25 Q The form is not there?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8476 Barnes-cross/Schoer
1 A That's fair.
2 Q But that's the cover letter that goes with the form?
3 A That is one of the letters that goes with one of the
4 forms for one of the publications, yes.
5 Q And that's a letter that is sent to someone whose
6 name comes from a mailing list or the kind of letter that
7 may be sent to someone whose name comes from a mailing
8 list; is that correct?
9 A I can't answer that. It could be, it could not be,
10 it could also be internal lists that were internal
11 research that was done.
12 Q Now, the other part of that document that I've handed
13 you second page, is that -- is that a brochure of Marquis
14 that is sent with a letter like the one that you have in
15 front of you?
16 A It's a brochure that from time to time is sent to
17 certain publications.
18 Q And that relates to Who's Who in American Law; is
19 that correct?
20 A That's correct.
21 Q And is that document the kind of document that would
22 be sent to someone whose name you received from a mailing
23 list?
24 A Could be. Could be one of many documents.
25 MR. SCHOER: Your Honor, perhaps I should
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8477 Barnes-cross/Schoer
1 separate them.
2 I would offer FO which is the letter and I'm
3 going to mark the other, what we call the brochure as FP.
4 THE COURT: All right. Any objection?
5 MR. WHITE: Are you offering both of them?
6 MR. SCHOER: Yes, I'm offering both of them.
7 MR. WHITE: No objection.
8 THE COURT: Defendant's Exhibit FO, Fox Oboe, and
9
FP, Fox Peter, in evidence.
10 (Defendant's Exhibits FO and FP received in
11 evidence.)
12 BY MR. SCHOER:
13 Q You also talked about a galley letter or galley
14 letters. I want to clarify that so we understand what
15 that is. That is something different from that data
16 mailing that we were just talking about; is that correct?
17 A That's correct.
18 Q I'm going to show you what I've marked as FQ. Is
19 that a galley proof?
20 A That is a galley proof.
21 Q And that is the kind of galley, I think you called it
22 a galley letter, but there's a letter that goes with that
23 and that's what is sent back?
24 A This is the proof for you to make the corrections or
25 additions.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8478 Barnes-cross/Schoer
1 MR. SCHOER: Your Honor I would offer that
2 document, FQ.
3 THE COURT: Any objection?
4 MR. WHITE: No objection, Your Honor.
5 (Defendant's Exhibit FQ received in evidence.)
6 BY MR. SCHOER:
7 Q Looking at that document --
8 THE COURT: Defendant's Exhibit FQ, Fox Queen, in
9 evidence.
10 MR. SCHOER: Thank you, Judge.
11 Q Looking at that document, FQ, that's a galley proof
12 that relates to me, right, for Who's Who in American Law?
13 A If you are Gary Schoer, yes.
14 Q That's me.
15 A Okay.
16 Q Now, you can't tell from that document how Marquis
17 got my name, can you?
18 A No.
19 Q I could have come from a mailing list?
20 A Could have. Could have been a nomination, could have
21 been a research.
22 Q Well, let me just ask you something about "could have
23 been a nomination." This document that is in evidence,
24 FK, looking at the page that talks about Who's Who in
25 American Law, there's a list of mail lists that were
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8479 Barnes-cross/Schoer
1 purchased by Marquis and sent out, data letters sent out
2 as a result of those mailing lists; is that correct?
3 A These are mailing lists that were used, yes.
4 Q And also there's a bottom line that says nominations,
5 self and others; is that correct?
6 A That's correct.
7 Q So I understand this document, it indicates there
8 were a total, total mailings for Who's Who in American Law
9 in 1992 or at least -- would that be for the year 1992 or
10 would that be just for this one date, October 1, 1992?
11 A The one date.
12 Q So on October 1, 1992, there were 168,679 mailings
13 for Who's Who in American Law?
14 A That's what it says.
15 Q Out of that 168,679 mailings, 296 of those were from
16 nominati
ons, self or others?
17 MS. SCOTT: May we know just what document he's
18 reading from.
19 MR. SCHOER: This is from FK.
20 MR. WHITE: What is the number on the bottom?
21 MR. SCHOER: R445OO7.
22 THE COURT: Let the record indicate that the
23 defendant Tara Garboski has appeared.
24 Good morning, Ms. Garboski.
25 DEFENDANT GARBOSKI: Good morning.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8480 Barnes-cross/Schoer
1 THE COURT: I explained to the jury about your
2 unfortunate car.
3 DEFENDANT GARBOSKI: I'm sorry.
4 THE COURT: It's all right.
5 MR. SCHOER: Shall I proceed, Mr. White? Do you
6 have what you were looking for? Do you want me to come to
7 you and show you what I'm offering?
8 MR. WHITE: May I see what it is?
9 MR. SCHOER: Sure.
10 (Counsel confer.)
11 BY MR. SCHOER:
12 Q I'm
not sure I got the last question out. I may be
13 repeating myself, but on this day, this mailing of October
14 1, there were 296 nominations in the total mailing of
15 168,000 plus; is that correct?
16 A That may have been very small, on that particular
17 date.
18 Q On that particular day.
19 A On that particular day, yes.
20 Q I'm only asking you about that particular day.
21 Now, the galley proof that you have in front of
22 you, I sent that information back to Marquis, right, at
23 some point?
24 Does Marquis verify any of the things that I put
25 on that sheet?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8481 Barnes-cross/Schoer
1 A We depend on the integrity of the listee to provide
2 accurate and honest information.
3 Q I hope I provided accurate and honest information,
4 but you don't verify in any way the infor
mation that I
5 provided on that document --
6 THE COURT: Wait a minute. Sustained. Desist
7 from what they verify and the jury is to disregard what
8 they verify or don't verify. It is totally irrelevant to
9 any issues in this case what this company does.
10 BY MR. SCHOER:
11 Q I'm going to show what you I've marked as Defendant's
12 Exhibit FR.
13 Could you tell me what that is?
14 A It's one of many forms. This one is asking you to
15 provide nominations if you care to do so.
16 Q So that was a form that is sent to someone who is one
17 of your "biographees," with a double e at the end, asking
18 them to nominate someone if they choose to do so?
19 THE COURT: Sustained.
20 I told the jury that this was offered for the
21 intent to deceive or lack of intent to deceive.
22 MR. SCHOER: Judge, may we approach with respect
23 to this?
24 THE COURT: No. You may not approach.
25 Proceed. Do you have any other questions that I
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8482 Barnes-cross/Schoer
1 told you that I would permit with respect to the other
2 issues?
3 MR. SCHOER: I believe I do, Judge.
4 THE COURT: Well, get to it.
5 BY MR. SCHOER:
6 Q Is it fair to say that Marquis Who's Who is the
7 leader in the industry?
8 THE COURT: Sustained.
9 Q Is it fair to say that Marquis Who's Who sets the
10 standards for the industry?
11 MR. WHITE: Objection.
12 THE COURT: Overruled.
13 A Would you repeat that question?
14 Q Sure.
15 Is it fair to say that Marquis Who's Who sets the
16 standards for your industry?
17 A Marquis Who's Who has biographical standards, yes.
18 Q No. No. What I'm asking you is with respect to all
19 of the
Who's Who publishers, would you consider Marquis
20 Who's Who to be the Rolls Royce of the industry?
21 A Marquis Who's Who publishes very reputable reference
22 directories.
23 Q You haven't answered the question.
24 Would you consider Marquis Who's Who to be the
25 Rolls Royce, the Cadillac of your industry?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8483 Barnes-cross/Schoer
1 MR. WHITE: Objection.
2 THE COURT: Sustained.
3 Do you consider Marquis Who's Who, and I
4 pronounce it differently than you do --
5 THE WITNESS: That's fine.
6 THE COURT: -- To set the standards, to set the
7 practices for the industry?
8 THE WITNESS: I believe that Marquis Who's Who
9 set standards years ago for the biographical reference
10 directories.
11 THE COURT: I'm not asking for standards for your
12 own company, but for the i
ndustry as a whole, if you can
13 use the "Who's Who" industry.
14 Does your company, that is to set the practices,
15 the customs in the industry?
16 THE WITNESS: I don't know what the other
17 standards are. I'm having a hard time answering that
18 because I'm not sure.
19 THE COURT: Then you don't know.
20 THE WITNESS: I don't know.
21 BY MR. SCHOER:
22 Q Mrs. Barnes, you testified yesterday outside the
23 presence of the jury. Do you remember that?
24 A Yes, I do.
25 Q Do you remember being asked this question and giving
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8484 Barnes-cross/Schoer
1 this answer?
2 THE COURT: Well, show it to counsel first.
3 MR. SCHOER: Page 8,334.
4 THE COURT: What page is it?
5 MR. SCHOER: 8,334.
6 THE COURT: All right. You may proceed.
7 BY MR. SCHOER:
8
Q Do you remember being asked this question and giving
9 this answer.
10 MR. SCHOER: Judge, may I read starting on line
11 13 or shall I start on line 17?
12 THE COURT: No, you can read on line 13.
13 MR. SCHOER: Okay.
14 "Question: As far as you are concerned, Marquis
15 is the Rolls Royce, the Cadillac of Who's Who biographical
16 directories, isn't that so?
17 "Answer: Absolutely.
18 "Question: And it sets the standard for the
19 industry, isn't that so?
20 "Answer: I believe it is. That is my opinion.
21 "Question: And whatever your company's custom
22 and usage is, that sets the standard for the custom and
23 usage in the industry, isn't that so?
24 "Answer: I'm assuming it is."
25 Do you remember being asked those questions and
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8485 Barnes-cross/Schoer
1 giving
those answers yesterday?
2 A I remember that, but I would like to clarify --
3 Q The question is, do you remember --
4 THE COURT: Excuse me a minute. Listen to the
5 question.
6 THE WITNESS: Okay.
7 THE COURT: Answer the question responsively. If
8 they call for a yes or no, please try to answer yes or
9 no. If you can't, just say I can't answer that question
10 yes or no.
11 THE WITNESS: Okay.
12 BY MR. SCHOER:
13 Q Do you remember being asked those questions and
14 giving those answers yesterday?
15 A Yes.
16 THE COURT: What are we waiting for?
17 MR. SCHOER: Sorry. I'm sorry.
18 BY MR. SCHOER:
19 Q I'll show you what has been marked as Defendant's
20 Exhibit FR.
21 Is that a record --
22 THE COURT: Is this a second FR or the same FR?
23 MR. SCHOER: I'm sorry, Judge. I must have lost
24 track. FS, it's a
different document.
25 MR. SCHOER: Defendant's Exhibit FS.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8486 Barnes-cross/Schoer
1 BY MR. SCHOER:
2 Q Is that a record created by Marquis Who's Who?
3 A I believe it was created by Marquis Who's Who.
4 Q Is that a record that is kept in the ordinary course
5 of business of Marquis Who's Who?
6 A When McMillan owned us.
7 Q And that was created in 1991 or 1992; is that
8 correct?
9 A I don't see a date.
10 Q Well --
11 A Again, it says "1992 Business Planning Manual," but
12 McMillan didn't own us then. I don't know when it was
13 prepared.
14 Q Okay.
15 But it is projecting certain information in 1991
16 and 1992, is that fair to say?
17 A Yes, it's a document, a business planning document
18 for 1991 forecast.
19 MR. SCHOER: I would offer this do
cument?
20 THE COURT: Any objection?
21 MR. WHITE: May I ask a question?
22 THE COURT: Yes.
23 (Continued.)
24
25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8487 Barnes-voir dire/White
1 VOIR DIRE EXAMINATION
2 BY MR. WHITE:
3 Q Have you ever seen this document before, that one?
4 A This particular document? I don't recall
5 specifically. I probably did.
6 Q I don't want to know about probably. Do you recall
7 seeing that document?
8 A (Perusing.) This particular document, I don't know.
9 Q Do you know who prepared that?
10 A No, I did not.
11 Q You did not.
12 And you don't know who did, correct?
13 A No.
14 Q You don't know the circumstances under which they
15 prepared it, do you?
16 A No, it says business planning.
17 Q All you know is what you read there on the
page,
18 right?
19 A Right.
20 Q Do you know where they got the information to put in
21 that?
22 A No.
23 Q Do you know if the information that is said to be put
24 in there is reliable or unreliable?
25 A I don't know.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8488 Barnes-cross/Schoer
1 MR. WHITE: I have an objection.
2 THE COURT: What is the ground of the objection?
3 MR. WHITE: Foundation.
4 THE COURT: May I see it?
5 MR. SCHOER: Here's a copy, Your Honor.
6 THE COURT: Well, not only objection -- well, I'm
7 sustaining the objection to relevancy grounds in addition
8 to foundation.
9 BY MR. SCHOER:
10 Q Ms. Barnes, did there come a time in April of 1993
11 that you wrote a letter in which you indicated that it was
12 time for the postal authorities to begin confiscating the
13 in
coming mail of Who's Who Worldwide?
14 MR. WHITE: Objection.
15 THE COURT: Sustained. Desist. The jury is
16 instructed to disregard that.
17 Counsel should not have asked that question and
18 I'm really surprised to hear it. Now, don't do that.
19 Do you have any other relevant questions,
20 Mr. Schoer?
21 MR. SCHOER: Yes, Judge.
22 BY MR. SCHOER:
23 Q Ms. Barnes, would you agree that the value of your
24 publications is subject to peoples' opinion as to how
25 valuable those publications might be?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8489 Barnes-cross/Dunn
1 MR. WHITE: Objection.
2 THE COURT: Sustained.
3 Mr. Schoer, you will sit down unless you have
4 anything relevant to the issues that I permitted this
5 witness to testify about.
6 Do you have anything relevant to those issues?
7 MR. SCHOER:
Judge, I think that that last
8 question is relevant to the issues, but if Your Honor
9 doesn't --
10 THE COURT: Well, I do not. Anything in that
11 vein I will not permit, clearly for the record.
12 MR. SCHOER: I have nothing further.
13 THE COURT: Anybody else?
14 MR. DUNN: Yes, Your Honor. I'll try.
15 CROSS-EXAMINATION
16 BY MR. DUNN:
17 Q Good morning, Ms. Barnes.
18 A Good morning.
19 Q I would like to ask you some questions about mailing
20 lists, if I may?
21 THE COURT: And not to be repetitive, Mr. Dunn.
22 MR. DUNN: I understand, Your Honor.
23 Q Yesterday I believe you testified at one point that
24 there was some kind of mailing list that your company
25 employed which resulted in a response rate of 3.46
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8490 Barnes-cross/Dunn
1 percent; is that c
orrect?
2 Do you remember that?
3 MR. WHITE: Objection.
4 THE COURT: Sustained.
5 BY MR. DUNN:
6 Q Well, while you were using mailing lists, you were
7 targeting a particular group of listees; is that correct?
8 A Yes.
9 Would you repeat that?
10 Q When you were using mailing lists, you were targeting
11 a particular group of listees with those mailing lists,
12 correct?
13 A Potential listees.
14 Q And is it fair to say that when you targeted these
15 listees, these potential listees, that response rates from
16 those particular mailing lists would vary? Is that true?
17 MR. WHITE: Objection.
18 THE COURT: Sustained.
19 BY MR. DUNN:
20 Q Part of your job deals with marketing, correct? Is
21 that correct, part of your job deals with marketing?
22 A Which job?
23 Q Did you testify yesterday that part of your job, an
y
24 part of your job, deals with marketing?
25 A Previously, yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8491 Barnes-cross/Dunn
1 Q And marketing research?
2 A I personally didn't do marketing research, no.
3 Q But you are aware of people in your company that did
4 marketing research, correct?
5 A Yes.
6 Q People in your company that would use focus groups
7 for the purpose of dealing with market research, correct?
8 MR. WHITE: Objection.
9 THE COURT: Sustained.
10 BY MR. DUNN:
11 Q In reference to mailing lists, does the term known as
12 erosion, have any relationship to mailing lists?
13 MR. WHITE: Objection.
14 THE COURT: Sustained.
15 Q Based on your experience with mailing lists, do you
16 have any knowledge whether competitors used the same
17 mailing lists as you do?
18 A No.
19 Q Do you recall testifying at a civil proceeding in
20 which -- withdrawn.
21 Would it be fair to say at some point you believe
22 that Bruce Gordon's company was a competitor?
23 MR. WHITE: Objection.
24 THE COURT: Sustained.
25 MR. DUNN: Your Honor, it just goes for the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8492 Barnes-cross/Dunn
1 previous question for credibility, 611(b).
2 THE COURT: Sustained.
3 BY MR. DUNN:
4 Q It's fair to say based on your experience of 25 years
5 with Marquis Who's Who and based upon your testimony over
6 the last couple days, that you have knowledge of mailing
7 lists, correct?
8 A Yes.
9 Q And is it fair to say that if a competitor is using
10 mailing lists, that that may result in an erosion in your
11 potential listees?
12 MR. WHITE: Objection.
13 THE COURT: S
ustained.
14 Mr. Dunn, anything else?
15 MR. DUNN: I'm just double-checking, based on
16 your previous ruling.
17 I have no further questions.
18 THE COURT: Anybody else?
19 MR. TRABULUS: Yes, very briefly, Your Honor.
20 (Continued.)
21
22
23
24
25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8493 Barnes-cross/Trabulus
1 CROSS-EXAMINATION
2 BY MR. TRABULUS:
3 Q Ms. Barnes, I just want to make it clear. When you
4 were president of Marquis Who's Who, Marquis Who's Who
5 would send letters to people telling them that they had
6 been nominated for consideration for inclusion in your
7 publication; is that correct?
8 A That was one form of letters, yes.
9 Q And that form of letter using the word "nominated,"
10 would be sent to, among others, people who had -- whose
11 na
mes came from a mailing list; is that correct?
12 A Among others, yes.
13 MR. TRABULUS: I have no further questions.
14 MR. GEDULDIG: I'm going to try just a couple,
15 Judge.
16 (Continued.)
17
18
19
20
21
22
23
24
25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8494 Barnes-cross/Geduldig
1 CROSS-EXAMINATION
2 BY MR. GEDULDIG:
3 Q Ms. Barnes, I'm going to ask you some questions only
4 dealing with the period from approximately 1989 to
5 approximately 1994, okay? Is that all right with you?
6 A That's fine.
7 Q And during that period of time you were either the
8 president or the publisher of Marquis Who's Who; is that
9 correct?
10 A That's correct.
11 Q Now, during that period of time did your company send
12 out letters to prospective list
ees telling them that they
13 had been nominated for inclusion in your publications?
14 A Would you repeat that question?
15 Q During that period of time did your company send out
16 letters to prospective listees telling them that they had
17 been nominated for inclusion in any one of your
18 publications?
19 A For potential inclusion, for consideration.
20 Q Okay.
21 So they had been nominated for possible inclusion
22 for one of your publications; is that correct?
23 A That's correct.
24 Q And some of the people who had received those letters
25 were gotten, their names were gotten from mailing lists;
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8495 Barnes-cross/Geduldig
1 is that right?
2 A Possibly.
3 Q Am I correct in saying that you were telling some of
4 your prospective listees that they had been nominated for
5 inclusion in one of your publications when in fact no
6 nomination process at all had taken place, that their
7 names had come from mailing lists?
8 A We generally disclosed --
9 Q This is a question that can be answered yes or no.
10 My question is, did you send letters to people
11 telling them they had been nominated for possible
12 inclusion in one of your publications, their names were
13 gotten from mailing lists and in fact there was no
14 nomination process at all that was used?
15 Yes or no?
16 A If you have that letter --
17 Q You were the president or the publisher. I'm asking
18 you --
19 A I don't know the wording, the exact wording. You are
20 telling me wording and if you show it to me I can answer
21 yes or no.
22 Q I asked you the question previously and you said that
23 was done.
24 A Did you show me the letter?
25 Q You answered my question.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8496 Barnes-cross/Geduldig
1 Are you now telling me your prior answer was
2 inaccurate or you can't answer it as you did?
3 A No, because the wording, I can't recall that the
4 wording is identical to what you said yesterday.
5 Q Am I not correct -- let's talk about one of the
6 publications. You had one called industry and finance or
7 something like that; is that right?
8 A Who's Who in Finance and Industry.
9 Q Who's Who in Finance and Industry.
10 That was a publication of your company?
11 A That is correct.
12 Q And that publication, I think you've previously
13 testified, appealed to the same group of people that
14 Mr. Gordon's company was appealing to; is that right?
15 You were trying to approach the same people for
16 inclusion in your pu
blication as he was approaching?
17 MR. WHITE: Objection.
18 THE COURT: Sustained.
19 BY MR. GEDULDIG:
20 Q In any event, am I correct in saying that some of the
21 people contacted by Marquis Who's Who for inclusion in the
22 publication Who's Who in Finance and Industry were told
23 they had been nominated when in fact -- nominated for
24 inclusion, when in fact they had not been nominated?
25 A Nominated for consideration of inclusion.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8497 Barnes-cross/Geduldig
1 Q Right.
2 A Yes.
3 Q So they were told that they were nominated for
4 consideration of inclusion and in fact they had not been
5 nominated.
6 A They may have -- generally they were professionals.
7 Q My question is very simple.
8 A There might have been letters that said your name has
9 been brought to ou
r attention for consideration and they
10 had been nominated for inclusion --
11 Q Ms. Barnes, I did not say that. I used the word
12 "nominated." I used the word "nominated." You've
13 qualified it and you've said "nominated for inclusion,"
14 and I've accepted your qualification.
15 My question to you is very simple. It's a simple
16 question. Did you send letters to people who you were
17 soliciting for inclusion in your publication Who's Who in
18 World Finance or whatever that was, did you send those,
19 some of those people letters telling them that they had
20 been nominated for possible inclusion in that publication
21 when in fact they had not been nominated?
22 That can be answered yes or no.
23 A It can't because we did have nominations and the same
24 letter went to people who were nominated.
25 Q I understand that. Let's put them out of the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8498 Barnes-cross/Geduldig
1 equation. I'm not talking about people you say were
2 nominated. I'm talking about people --
3 MR. WHITE: Can I object to Mr. Geduldig making a
4 speech and lecturing the witness. If he has a question to
5 ask, he can ask it.
6 MR. GEDULDIG: I would like an answer and she is
7 twisting my question, Judge.
8 THE COURT: Excuse me, can I get a word in here.
9 MR. GEDULDIG: Yes.
10 THE COURT: I generally don't have any trouble
11 getting words in, Mr. Geduldig.
12 Mr. Geduldig, your tone is somewhat harsh, you
13 don't mean that, I know.
14 MR. GEDULDIG: I don't. I'm a gentleman.
15 THE COURT: Member of the jury, every lawyer has
16 their own technique. You've seen a panoply. Now, some
17 lawyers stay behind the lectern, they never move. Others
18 are like F
ran Tarkenton, which you don't know anything
19 about because you're too young. He was a quarterback that
20 came out of the pocket, he rolled around, he was a
21 scrambler. There are some lawyers who do that, I don't
22 want to tell you who they are. And then there is
23 Mr. Geduldig, he's very assertive, he's -- that's his
24 style. He's a very good lawyer and I let him have his own
25 say. Every lawyer has their own style. In fact they
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8499 Barnes-cross/Geduldig
1 should never change their style to try to be somebody
2 else. But that has nothing to do with this case.
3 Go ahead, Mr. Geduldig.
4 MR. GEDULDIG: Thank you, Judge.
5 I'll talk hopefully a little gentler.
6 BY MR. GEDULDIG:
7 Q My question is this. I'm not talking about all --
8 withdrawn.
9 Again, we're talking about your
publication Who's
10 Who in Finance and Industry. Is that the right title?
11 A That's the correct title.
12 Q There are a lot of people who were contacted by your
13 company for that publication and possible inclusion; is
14 that right?
15 A Probably -- yes.
16 Q And some of these people came to the notice of your
17 company through different methods; is that right?
18 A That's correct.
19 Q Now, we're zeroing in on just a segment of those
20 people that were contacted by your company, all right?
21 I understand that different systems were used,
22 but I'm now talking about one possible way in which your
23 company acted with regard to some of those potential
24 listees, all right? Do you understand my question now,
25 the group we're talking about?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8500 Barnes-cross/Geduldig
1 A For some of the listees?
2 Q Potential listees.
3 A Right.
4 Q For some of the potential listees.
5 My question is, is it not true that some of the
6 people contacted by your company for possible inclusion in
7 the publication Who's Who in Finance and Industry, were
8 told that they had been nominated, nominated for possible
9 inclusion in your publication when in fact they were not
10 nominated?
11 A I'm having a hard time answering that because --
12 THE COURT: The answer is yes, no, I don't know,
13 I don't remember or I can't answer yes or no.
14 THE WITNESS: I can't answer yes or no.
15 MR. GEDULDIG: If I can have one second, Judge.
16 THE COURT: Well, I think this is a time for a
17 ten-minute recess.
18 Do not discuss the case and keep an open mind.
19 (Jury exits.)
20 (Recess taken.)
21 (Jury enters.)
22 THE COU
RT: Please be seated, members of the
23 jury.
24 You may proceed, Mr. Geduldig.
25 MR. GEDULDIG: Thank you, Judge.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8501 Barnes-cross/Geduldig
1 BY MR. GEDULDIG:
2 Q Ms. Barnes, perhaps I can recast my question.
3 With regard to this publication Who's Who in
4 Finance and Industry, am I correct in saying that you
5 would contact prospective listees as nominees when in fact
6 their names were gotten from mailing lists?
7 A And I said I can't answer that yes or no.
8 Q Let me show you a letter, and ask you if you've ever
9 seen a letter such as the one I'm showing you now
10 (handing)?
11 A Yes, I've seen this letter.
12 Q That's a letter that was put out by your company?
13 A Yes.
14 Q To a prospective listee in the publication Who's Who
15 in Finance and Industry?
16 A Yes.
17 Q And it addresses the prospective listee as
18 "nominee."
19 A Yes.
20 Q Is it not possible that a person receiving that
21 letter that his name was obtained from a mailing list?
22 A I see now that this letter does say, it tells how
23 they got various -- various ways that they got the name.
24 Q Try to answer my question if you would, Mrs. Barnes.
25 I'm asking you is it not possible that a
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8502 Barnes-cross/Geduldig
1 prospective listee for Who's Who in Finance and Industry
2 received that letter and you got that name from a mailing
3 list?
4 A That's possible.
5 Q So you wrote letters to people calling them "nominee"
6 when in fact their names came from mailing lists.
7 A That's possible.
8 Q They were not nominated.
9 A That's possible.
10 Q How do you explain calling somebody a nominee who was
11 not nominated?
12 MR. WHITE: Objection.
13 THE COURT: Sustained.
14 MR. GEDULDIG: Judge, I would like to move this
15 letter into evidence. I'm not sure what we're up to.
16 MR. JENKS: FT.
17 MR. GEDULDIG: Frank Thomas, a baseball player.
18 THE COURT: Any objection?
19 MR. WHITE: Yes, Your Honor. I object to
20 Mr. Geduldig's taking one letter out of a packet out of a
21 mailing. He's not including as an exhibit the other
22 things that are in the envelope with the letter.
23 THE COURT: You want to put the whole package
24 in?
25 MR. WHITE: With the whole package I have no
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8503 Barnes-cross/Geduldig
1 objection whatsoever.
2 THE COURT: Do you want to do that,
3 Mr. Geduldig?
4 MR. GEDULDIG: Give me
a second, Judge.
5 THE COURT: While we have a few minutes, we'll
6 take a longer lunch hour. It's because I have to take
7 care of a matter involving a very serious illness of a
8 very dear friend of a judge of the Second Circuit who I
9 have to see over the lunch hour, and so we'll take an
10 extended lunch hour from 12:30 until 2 o'clock.
11 I'm sorry about keeping you waiting but I
12 wouldn't do it unless it was urgent that I do it.
13 What's happening, Mr. Geduldig?
14 MR. GEDULDIG: I think, Judge, the consensus is
15 we'll put in the whole package.
16 THE COURT: We'll call that FT, the whole
17 package.
18 MR. GEDULDIG: Yes, sir.
19 THE COURT: Defendant's Exhibit FT, Fox Tiger, in
20 evidence.
21 (Defendant's Exhibit FT received in evidence.)
22 BY MR. GEDULDIG:
23 Q Now, this letter is addressed to "Dear Marquis Who's
24 Who
nominee;" is that right?
25 A The letter you showed me, yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8504 Barnes-cross/Geduldig
1 Q And that prospective nominee is the person whose name
2 may have come from a mailing list; is that right?
3 A May have, yes.
4 Q And this is a letter to a prospective listee to your
5 publication with Who's Who in Finance and Industry, is
6 that also right?
7 A I believe it was, yes.
8 Q Now, you did have a nomination process at Who's Who
9 during this period 1989 to 1994?
10 A Yes.
11 Q And you sent out mailings during that period to
12 prospective listees for the publication Who's Who in
13 Finance and Industry; is that right?
14 A Would you repeat that question?
15 Q You sent out mailings, mass mailings during the
16 period of 1989 to 1994 to prospective listees in the
17 pu
blication Who's Who in Finance and Industry?
18 A Yes.
19 Q And this would be a break down of one such mailing
20 that your company sent out to prospective listees in the
21 publication Who's Who in Finance and Industry, is it not?
22 A Yes.
23 MR. GEDULDIG: I'm showing Ms. Barnes an item
24 which is already in evidence and has been marked
25 Defendant's Exhibit FK.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8505 Barnes-cross/Geduldig
1 BY MR. GEDULDIG:
2 Q And in that listing you break down by percentage how
3 you got the names of people that you were contacting by
4 letter; is that right?
5 A No.
6 Q Tell me what it is.
7 A It's a listing of the sources that were used, how
8 many were used and how many were returned and the percent
9 of return to that mailed.
10 Q How many mailings were made?
11 THE
COURT: I will not permit this to go on now.
12 Sustained.
13 MR. GEDULDIG: This has to do with the nomination
14 process.
15 THE COURT: Well, ask the question. You asked it
16 I thought and you received an answer.
17 BY MR. GEDULDIG:
18 Q On that list you are looking at now, does it say how
19 many people were nominated?
20 A No.
21 Q Does it have a nomination column?
22 A It says how many were mailed that day. It doesn't
23 say how many were nominated.
24 Q In that particular mailing, does it say how many
25 people were nominated?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8506 Barnes-cross/Geduldig
1 A No.
2 MR. WHITE: Objection.
3 THE COURT: Sustained. Strike out the answer.
4 BY MR. GEDULDIG:
5 Q There's a number on that list for 205,381.
6 THE COURT: Sustained.
7 Q On this exhibi
t that you had looked at before that
8 has been marked FT, on the top page there's a handwritten
9 letter, WF with a slash and another letter. Do you see
10 that?
11 A Yes.
12 Q Can you tell us what that stands for?
13 A It stands for Who's Who in Finance and Industry, a
14 mailing to a person who was in the prior edition.
15 Q And that's a code?
16 A Yes.
17 Q And does that code appear on some of the other
18 documents in that package?
19 THE COURT: Well, does it, Mr. Geduldig?
20 MR. GEDULDIG: I believe it does.
21 Yes, it does.
22 THE COURT: All right. Show it to her.
23 THE WITNESS: There's a letter.
24 THE COURT: Okay.
25 Proceed.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8507 Barnes-cross/Geduldig
1 BY MR. GEDULDIG:
2 Q Does the code appear in this letter (indicating)?
3 A No.
4 Q Does this indicate any kind of a code (indicating)?
5 A Yes.
6 Q I thought you said it doesn't appear in the letter?
7 A That's not the same code.
8 Q But this is also a code?
9 A That's a code.
10 Q And what does that code stand for?
11 A Data mailing.
12 THE COURT: Sustained. Next case -- I mean, next
13 question.
14 Boy, was that a Freudian slip.
15 MR. GEDULDIG: Wishful thinking. We're all on
16 the same thing.
17 THE COURT: Let's move along, Mr. Geduldig.
18 MR. GEDULDIG: Judge, --
19 THE COURT: Let's move along.
20 MR. GEDULDIG: Judge, I have no other questions.
21 I have nothing else.
22 THE COURT: Anybody else?
23 Mr. White?
24 MR. WHITE: Yes, Your Honor.
25 THE COURT: Go ahead.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8508 Barnes-cross/White
1 CROSS-EX
AMINATION
2 BY MR. WHITE:
3 Q Now, Ms. Barnes, aside from when you appeared in
4 court to testify the other day, you and I have never met,
5 correct?
6 A That's correct.
7 Q And we've never sat down and discussed your
8 testimony?
9 A That's correct.
10 Q Now, Ms. Barnes, I would like to go over with you
11 this Defendant's Exhibit FT that Mr. Geduldig just showed
12 you.
13 Now, that was a letter that was sent out to
14 prospective, people who were prospective candidates to be
15 in Who's Who in Finance and Industry; is that right?
16 A I believe they were all finance and industry. It's a
17 whole package. Several mailings.
18 Q If you can --
19 A They were all finance and industry, yes.
20 Q Take a look at the third page which I think that was
21 the page that Mr. Geduldig was referring you to.
22 A Yes.
23 Q Tha
t indicates, the greeting on the letter says "Dear
24 Marquis Who's Who nominee;" is that correct?
25 A That's correct.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8509 Barnes-cross/White
1 Q If you look down at the second paragraph, just follow
2 along with me as I read it and then I want to ask you a
3 question about it.
4 It says "as part of the identification process
5 our research staff consults many publicly available
6 sources including annual reports, directories,
7 professional society rosters, newspapers and magazines.
8 Your appearance in such a source warrants the
9 consideration of your professional accomplishments for
10 inclusion in Who's Who in Finance and Industry."
11 Do you see that?
12 A Yes.
13 Q And this is what gets disseminated to all of those
14 people that you are mailing stuff to, right?
15 A Y
es.
16 Q Now, is it correct that while the greeting at the top
17 says "nominee," this letter does tell the recipient that
18 he could have come from a publicly available source?
19 A It does.
20 MR. GEDULDIG: Objection.
21 THE COURT: What ground?
22 MR. GEDULDIG: Objection to the form of the
23 question, Judge. Mr. White is testifying.
24 MR. WHITE: It's cross-examination, Your Honor.
25 THE COURT: Well, that's an interesting point.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8510 Barnes-cross/White
1 I've held that this witness, I don't want to get into what
2 the legal definition is and that's why I permitted
3 cross-examination tactics, rather leading questions by the
4 other attorneys.
5 MR. WHITE: Your Honor, the same thing should
6 hold here, Your Honor.
7 THE COURT: No, I don't think so. I'm sustaining
8
the objection. Don't lead the witness.
9 MR. WHITE: Your Honor, I don't think your ruling
10 before the converse is true with respect to the
11 government.
12 THE COURT: Well, I'm now making it a ruling.
13 Proceed.
14 BY MR. WHITE:
15 Q Can you tell us, Ms. Barnes, what your understanding
16 is of what a professional society roster is?
17 MR. TRABULUS: Objection, Your Honor.
18 THE COURT: Overruled.
19 A A professional society roster could be a roster, a
20 list of names of people who are in a particular
21 profession, a particular society.
22 Q And annual reports in this letter, what does that
23 refer to?
24 A Annual reports, as I interpret them, are reports that
25 are produced by businesses, corporations and it typically
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8511 Barnes-cross/White
1 lists names of t
heir directors and key employees.
2 Q And when it says here "directories," what does that
3 refer to?
4 A Directories are typically other sources of
5 biographical directories about people with names in them.
6 Q This also refers to Marquis' research staff; is that
7 correct?
8 A Yes.
9 Q Does Marquis have a research staff?
10 A Yes.
11 Q Does the research staff determine who is accepted for
12 inclusion in the book?
13 MR. JENKS: Objection.
14 THE COURT: Sustained.
15 BY MR. WHITE:
16 Q Who determines who is accepted for inclusion in the
17 book?
18 MR. JENKS: Objection.
19 THE COURT: Sustained.
20 Q Now, let me show you Government's Exhibit -- let me
21 back up.
22 Do you recall testifying yesterday that in
23 response from questions from Mr. Neville that your
24 recollection was that there was a brochur
e sent out by
25 Marquis Who's Who that indicated the sources of Marquis'
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8512 Barnes-cross/White
1 name?
2 A Yes.
3 Q Let me show you Government's Exhibit 1622 for
4 Identification, and let me ask you if you recognize that
5 brochure, 1622?
6 A Yes, I do.
7 Q And what is it?
8 A It's a brochure to potential listees for Who's Who in
9 Finance and Industry. That's a letter. And inside we
10 tell them how we got their names and general questions and
11 answers.
12 Q And was that part of mailings that were sent out to
13 prospective listees in Who's Who in Finance and Industry?
14 A Yes, it was.
15 Q Did you send out those sorts of brochures with
16 mailings as a regular part of your business?
17 A Yes, we did.
18 Q And did you do that in the regular course of Ma
rquis
19 Who's Who business?
20 A Yes.
21 MR. WHITE: The government offers 1622.
22 Let me show it to defense counsel.
23 THE COURT: Did you say you offer that?
24 MR. WHITE: Yes, Your Honor, but I believe
25 defense counsel needs time to review it.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8513 Barnes-voir dire/Neville
1 MR. NEVILLE: Your Honor, may I have a couple of
2 voir dire questions?
3 THE COURT: Surely.
4 VOIR DIRE EXAMINATION
5 BY MR. NEVILLE:
6 Q Ms. Barnes, this brochure that Mr. White just showed
7 you --
8 A The question, yes.
9 Q It's a preliminary question and it shows that I'm
10 leading up to another one. Where did Mr. White get this?
11 Do you know?
12 A The Judge asked us to go through our documents last
13 night to indicate if there was any brochures that listed
14 how we got the names.
15 Q And how did Mr. White get this?
16 A I have no idea. I didn't give it to him.
17 Q Did Mr. Bailey give it to him?
18 A I gave it to Mr. Bailey.
19 Q So you gave it to Mr. Bailey?
20 A I gave it to Mr. Bailey.
21 Q So Mr. White ultimately got it from you?
22 THE COURT: Is that a question on voir dire?
23 MR. NEVILLE: No, sorry.
24 THE COURT: Well, why are you asking it for?
25 MR. NEVILLE: I apologize.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8514 Barnes-cross/White
1 BY MR. NEVILLE:
2 Q Did you hand this document to your lawyer yesterday?
3 THE COURT: Sustained.
4 Anything else on voir dire?
5 MR. NEVILLE: No, I'll save it.
6 THE COURT: Any objection?
7 MR. TRABULUS: No, Your Honor.
8 THE COURT: Government's Exhibit 1622 in
9 evidence.
10 (Government's
Exhibit 1622 received in evidence.)
11 MR. WHITE: Your Honor, I would ask that you
12 instruct the jury that you instructed the witness to make
13 available subpoenaed documents to the party this morning.
14 THE COURT: I did.
15 MR. WHITE: And I got here early -- not as early
16 as you, Your Honor.
17 THE COURT: Now that you raised the subject,
18 Mr. White, getting here early is a relative time factor.
19 MR. WHITE: I said not as early as you, Your
20 Honor.
21 Your Honor, the exhibit was accepted.
22 THE COURT: Yes, in evidence as 1622.
23 BY MR. WHITE:
24 Q Ms. Barnes, if you can follow along with me as I read
25 a part of this. On page 2 of this brochure under the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8515 Barnes-cross/White
1 heading where it says Q and A, answers to -- I'm sorry,
2 I'm reading from the wrong
column.
3 From the second column on page 2. It says, "how
4 did we get your name?"
5 Do you see that?
6 A Yes, I do.
7 Q Let me read it.
8 "Though individuals are occasionally nominated
9 by their associates for our publications, our own staff
10 researches in numerous locations where people of
11 achievement and position are likely to be found and sends
12 out questionnaires to gather specific information.
13 In today's rapidly changing society we must be
14 extremely creative in our research. For example, we have
15 learned we may find people who qualify among those," and
16 there's a colon and bullet points.
17 A Right.
18 Q The first bullet point says, "among those, number
19 one, who have subscribed to prestigious journals or
20 business publications for ten years or more because these
21 people are likely to be highly involved in their
careers."
22 Bullet point number 2. "Who belong to profession
23 associations or societies, including chambers of
24 commerce."
25 Bullet point number 3. "Who have earned college
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8516 Barnes-cross/White
1 degrees or professional certification and have spent a
2 decade or more in their chosen field."
3 Bullet point number 4. "Who are active in social
4 and community affairs and whose names are routinely found
5 in association rosters, annual reports and the local
6 newspapers."
7 "Every year our editors send questionnaires to
8 people from many sources such as these. From the
9 information we receive we determine those biographies that
10 will be published in our edition."
11 Do you see that, Ms. Barnes?
12 A Yes, I do.
13 Q I want to ask you about those bullet points. The
14 first one is "people who have subscribed to prestigious
15 journals or business publications for ten years or more."
16 What does that refer to?
17 MR. TRABULUS: Objection, Your Honor.
18 THE COURT: Sustained.
19 BY MR. WHITE:
20 Q Let me go back to Defendant's Exhibit FT which is the
21 letter that you had in front of you.
22 By whom is that letter signed?
23 A The third page in?
24 Q Yes.
25 A Judy Salk.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8517 Barnes-cross/White
1 Q Is Ms. Salk a real person?
2 A Yes, she is.
3 Q And on the left-hand side of the letter, a board of
4 advisor is listed?
5 A Yes.
6 Q Are those real people?
7 A Yes.
8 MR. JENKS: Objection.
9 MR. SCHOER: Objection.
10 THE COURT: What ground?
11 MR. JENKS: Outside the scope of Your Honor's
12 ruling.
13 MR. WHITE: It's the issue that is put in.
14 THE COURT: I limited the defense and I'll limit
15 you as well. Sustained. It's in evidence, the jury can
16 see it.
17 I've told the jury two or three times the
18 purpose, the reason I'm allowing the testimony to go in
19 and it isn't to explore Marquis Who's Who, but if the jury
20 hears evidence of a custom and standard and practice in
21 the industry, it bears upon the intent or lack of intent
22 to deceive. That's why I allowed it in, only for that
23 purpose and not to delve into the corporate background and
24 purposes and methods of operation of Marquis Who's Who.
25 That's why I very definitely limited the defense questions
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8518 Barnes-cross/White
1 and I'll do the same to you when you pay attention to what
2 I say.
3 MR. WHITE: Your Honor, if I could, just at the
4 side bar, I want to clarify one thing because I don't want
5 to contravene Your Honor's ruling.
6 THE COURT: Come up.
7 (Side bar.)
8 THE COURT: Yes, Mr. White.
9 MR. WHITE: Your Honor, I -- neither does the
10 government want to get into a comparison of the two. I
11 just want to make one thing clear which I think was raised
12 by the defendants.
13 The government's ultimate theory of the fraud in
14 this case is not simply that mailing lists were used or
15 whatever, it goes to the old selection that it was not
16 selective.
17 THE COURT: I understand.
18 MR. WHITE: So I think there is a distinction to
19 be drawn because Mr. Neville raised a clear implication in
20 his questions that by Marquis' use of a lot of mailing
21 lists, that you wanted more and more money and whatnot.
22 And it s
hould be made clear, I think, just the simple
23 point that as I think she intimated with Mr. Neville, that
24 in this company there's a research department that decides
25 whether or not you are admitted and attempts at sales have
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8519 Barnes-cross/White
1 nothing to do with that and come later.
2 THE COURT: Sustained.
3 We'll not get into the nuances of this company
4 because that will, on redirect, go into all the other
5 things that I've kept out. Now, it is very clear there
6 were certain things I told you that you could ask about
7 and that's what you could ask about. You can also ask
8 about the mailings, if you want to go into it. You've
9 already offered the brochure.
10 MR. WHITE: Right.
11 THE COURT: But I'm going to hold you to that,
12 that's it.
13 MS. SCOTT: They went way
outside of the scope
14 yesterday and that was after we objected and after Your
15 Honor instructed them not to. Part of the reason we
16 didn't continue to object we didn't believe Your Honor
17 would sustain our objections. We haven't had much success
18 that way, frankly.
19 THE COURT: Ms. Scott, I don't know what in the
20 world you are talking about. You never have been
21 prohibited from objecting as to anything and if you
22 decided for your own reasons that you were going to
23 decide, think, guess what I was going to do so you didn't
24 object, that's very poor strategy, trial tactics. I can
25 only ascribe that to inexperience, Ms. Scott. So don't
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8520 Barnes-cross/White
1 tell me that you didn't want to object because you thought
2 what I would or would not rule.
3 MR. WHITE: Your Ho
nor, Mr. Neville asked several
4 questions regarding what the telemarketers did at Marquis
5 and what and how they dealt with libraries, and I just
6 wanted to clarify that. That is a question that he
7 specifically asked.
8 THE COURT: I want to tell you something, I
9 didn't want to say it before for the record but I will
10 have to now. I had to object on your behalf 12, 15 or 20
11 times because you didn't think enough of your own case to
12 object and I resent the implication made by Ms. Scott that
13 I in any way was unfair in my ruling. If anything, I
14 protected the government's interest too much.
15 Now, let's proceed.
16 MR. WHITE: Okay.
17 (End side bar.)
18 MR. WHITE: Your Honor, may I publish Exhibit
19 1622 to the jury?
20 THE COURT: Yes.
21 MR. WHITE: Thank you.
22 BY MR. WHITE:
23 Q Now, Ms. Barnes, on Defendant's Ex
hibit FT and the
24 brochure we've just looked at, can you tell us whether or
25 not that is -- those are typical of the mailings that
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8521 Barnes-cross/White
1 would be sent by Marquis Who's Who?
2 A Yes, they are.
3 Q And does that apply to some, excluding Who's Who in
4 America for a moment, the remaining titles, does that
5 apply to some or all of the other Marquis titles?
6 A All of the other Marquis titles.
7 Q Now, is there a practice at Marquis with respect to
8 advising potential listees of the source of their names?
9 MR. LEE: Objection, Your Honor.
10 THE COURT: Overruled.
11 A Yes.
12 Q Can you tell us in substance in general, in summary,
13 what that is?
14 A We typically in every brochure letter that their name
15 could have come from a variety of sources, could h
ave been
16 a professional roster society list, alumni list, rosters
17 of prestigious journals such as Harvard Business Review,
18 while the particular journal may not have been mentioned.
19 Q Is there a practice that is followed at Marquis Who's
20 Who regarding what to do if someone who is a potential
21 listee in one of your titles asked where you got my name
22 from?
23 MR. TRABULUS: Objection.
24 MR. LEE: Objection.
25 THE COURT: Overruled.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8522 Barnes-cross/White
1 A Yes.
2 Q What is that practice?
3 A Generally referring to the wording I explained, and
4 if that is not enough and they wanted to know of the exact
5 source, we would ask them to hold them on the telephone,
6 bear with us, and we look it up on the computer.
7 Q Is there a practice once you looked it up on
the
8 computer and it lists that someone came from a
9 professional association list, to tell them that?
10 A Yes.
11 MR. WHITE: Your Honor, may I have one moment?
12 THE COURT: Yes.
13 MR. WHITE: Your Honor, I'm just trying to find a
14 defense exhibit.
15 BY MR. WHITE:
16 Q Ms. Barnes, let me show you what has been marked as
17 Defendant's Exhibit Z, which is already in evidence in
18 this case.
19 That is a 1989 letter to Mr. Gordon regarding his
20 nomination in -- nomination for possible inclusion for
21 Who's Who in the East.
22 Do you see that?
23 A Yes, I do.
24 Q Can you tell from looking at that letter whether
25 Mr. Gordon was really nominated?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8523 Barnes-cross/White
1 A David Swanson was in customer service. Yes, I can.
2 Q What did you t
ell?
3 A He took a phone call and this letter went out as a
4 result of the phone call. Somebody nominating Mr. Gordon,
5 maybe he nominated himself, maybe somebody else called in
6 and nominated him.
7 Q You mentioned the name David Swanson.
8 A He was an employee of ours.
9 Q He was the man who signed the letters?
10 A Yes.
11 Q I want to make sure I'm clear.
12 From the fact that Mr. Swanson signed the letter,
13 how do you know that Mr. Gordon was nominated?
14 A Because he worked in customer service and part of his
15 job was to take the phone calls for nominations coming in.
16 Q So from your knowledge at Marquis you can say that
17 that did not come from a mailing list?
18 A Absolutely.
19 MR. WHITE: No further questions, Your Honor.
20 (Continued.)
21
22
23
24
25
OWEN M. WICKER,
RPR OFFICIAL COURT REPORTER 8524 Barnes-recross/Trabulus
1 RECROSS-EXAMINAITON
2 BY MR. TRABULUS:
3 Q This Mr. Swanson you are talking about, he worked in
4 customer service; is that correct?
5 A Yes.
6 Q And you said part of his job might be to take
7 nominations; is that correct?
8 A Yes.
9 Q And he worked at the phone, correct?
10 A He worked on incoming calls.
11 MR. WHITE: Objection.
12 As I understood Your Honor's ruling before, this
13 is the same topic.
14 THE COURT: You raised it, Mr. White. I'll allow
15 a limited inquiry because you raised it. And by doing so
16 went outside the perimeters without objection by the
17 defendants.
18 BY MR. TRABULUS:
19 Q Would he also take orders?
20 A In customer service, sometimes they would take
21 orders. They took incoming phone calls and whatever
22 happened as a result of that.
23 Q And you've known about this letter to Mr. Gordon
24 since 1994 at least; is that correct? You've seen it
25 before?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8525 Barnes-recross/Trabulus
1 A Yes.
2 Q And you testified about it in 1994, did you not?
3 A Yes.
4 Q In the Reed civil suit?
5 A I believe I did.
6 Q Now, since that time have you inquired of Mr. Swanson
7 as to whether or not two weeks before that letter was
8 sent, Mr. Gordon had ordered a copy of Who's Who in the
9 East from Mr. Swanson?
10 A Mr. Swanson hasn't been employed with us since 1991,
11 1992.
12 Q So when you say that Mr. Swanson took an incoming
13 call, you don't know whether that incoming call was a
14 nomination or possibly Mr. Gordon calling up and saying I
15 want to buy a copy of Who's Who in
the East?
16 A He wouldn't have gotten this letter.
17 Q You haven't spoken to Mr. Swanson about that, have
18 you?
19 THE COURT: Sustained. Let's move along.
20 MR. TRABULUS: Your Honor, I will. I will. I
21 just want to take the exhibit.
22 BY MR. TRABULUS:
23 Q I will stand near you, Mrs. Barnes.
24 Now, this is Exhibit 1622 in evidence which
25 Mr. White questioned you about, and he asked you to read
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8526 Barnes-recross/Trabulus
1 various portions of it; is that correct?
2 A Yes.
3 Q And under "how did we get your names," where it says
4 "though individuals are occasionally nominated by their
5 associates for our publications, our own staff researches
6 in numerous locations where people of achievement and
7 position are likely to be found and sends out
8 questionn
aires to gather specific information."
9 A That's the first paragraph.
10 Q And then after that, it lists or it sets forth
11 various places where people may be found; is that correct?
12 A That's correct.
13 Q Now, is it fair to say that the phrase "mailing list"
14 does not appear in this document?
15 A The words "mailing list."
16 Q Does not appear?
17 A Does not appear.
18 Q And it doesn't appear in any of the letters that were
19 included in Exhibit FT, does it?
20 A It's implied but not listed.
21 MR. TRABULUS: Move to strike.
22 Q Does it appear in any of those letters?
23 A No.
24 Q Now, this brochure does not say, does it, that our
25 research staff has not done any research leading to your
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8527 Barnes-recross/Trabulus
1 particular name before your getting thi
s mailing, does it?
2 A Would you repeat that?
3 Q I'll rephrase it.
4 Does this brochure say to the person although
5 we're talking about a research staff, you are getting a
6 letter that came directly from a direct mail source on a
7 mailing list that we rented, does it say that?
8 A It says you may have been chosen by subscriber.
9 Q Is the answer yes or no, ma'am?
10 A I can't answer it yes or no.
11 Q Does it tell the person who receives it after talking
12 about our research staff, that the research staff probably
13 never heard about that person's name after that date?
14 A I'm sorry, I don't understand what you're asking.
15 Q Does that brochure, doesn't that brochure imply to
16 the person who receives it that the research staff has
17 already gone through some names and selected that
18 particular person?
19 A I don't read it that way.
20 MR. TRABULUS: May I have Exhibit FT, please?
21 BY MR. TRABULUS:
22 Q Now, this is the third page of Exhibit FT and it
23 begins "Dear Marquis Who's Who nominee. Our editors have
24 identified you as a biographical candidate for the
25 forthcoming 26th edition of Who's Who in Finance and
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8528 Barnes-recross/Trabulus
1 Industry."
2 That's the way it begins, correct?
3 A That's correct.
4 Q Again, does the word "mailing list" appear anywhere
5 in this, the words "mailing list"?
6 A Roster and list is the same, but the words "mailing
7 list" do not.
8 Q Well, ma'am, you say roster and list are the same.
9 Does not a roster suggest the actual physical book that an
10 organization maintains --
11 A No.
12 Q It does not?
13 A A roster is a list of names.
14
Q Does the word "list" appear?
15 A No.
16 Q Isn't it a fact that the word "roster" is used
17 instead of "list" to suggest to the people that received
18 this letter that somebody from your company has actually
19 gone through the book in which an organization keeps its
20 list of members and then has perhaps done more work to
21 identify that particular person to give the impression to
22 the person that receives this letter that they've been
23 researched and analyzed and nominated before that letter
24 is sent to them, isn't that true, ma'am?
25 MR. WHITE: Objection.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8529 Barnes-recross/Trabulus
1 THE COURT: First of all, you lost me in the
2 first ten seconds.
3 MR. TRABULUS: I'll withdraw the question.
4 THE COURT: Will you slow down, Mr. Trabulus,
5 please.
6 MR. TRABULU
S: Sure.
7 BY MR. TRABULUS:
8 Q Isn't it true, ma'am, that the wording of this letter
9 is deliberately designed to suggest to the person who
10 receives it that they were handpicked either by your
11 research staff or by the board of advisors that is listed
12 on the side?
13 A I don't read it that way.
14 Q Now, ma'am, this is another page in this that says "a
15 distinction limited to two persons in 10,000." Is that
16 correct?
17 A That's what it says.
18 Q Two persons in 10,000; is that correct?
19 THE COURT: She said yes.
20 MR. TRABULUS: I'm sorry.
21 BY MR. TRABULUS:
22 Q How is that number calculated?
23 A I have no idea.
24 Q It certainly is not the case of the people who
25 returned this form, only two in 10,000 get included in the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8530 Barnes-cross/Jenk
s
1 book, is it?
2 A I don't know.
3 MR. TRABULUS: I have no further questions.
4 MR. JENKS: I have a few questions.
5 CROSS-EXAMINATION
6 BY MR. JENKS:
7 Q Ms. Barnes, in Government's Exhibit 1622 in front of
8 you, is there anywhere in there that mentioned in your
9 brochure, is there anywhere in there the mention of the
10 word or the term "mailing list"?
11 A I think I answered that before.
12 Q In any of your brochures, in all the other companies
13 other than Who's Who in America that you send out to
14 potential listees, did you ever use the words "mailing
15 list" anywhere in your brochures?
16 MR. WHITE: Objection.
17 THE COURT: Sustained.
18 Q In any of your literature that your company has, do
19 you ever mention when you send a solicitation letter to a
20 potential listee the fact that their name may have been
21 gotten from a mailing list?
22 A No.
23 Q You don't, right? In fact, you used terms like
24 "professional society rosters, annual reports,
25 directories," etcetera, right?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8531 Barnes-cross/Jenks
1 A And subscribers.
2 Q And you deliberately use those terms; am I correct?
3 A I don't deliberately do anything, no.
4 Q Well, your company has decided that instead of using
5 the words "mailing list" it is better to use the words
6 "professional society roster" so that you could confuse
7 the person that receives the letter?
8 MR. WHITE: Objection.
9 THE COURT: Sustained.
10 BY MR. JENKS:
11 Q Let me ask you this. A professional society roster
12 is not a disguise for the word mailing list?
13 MR. WHITE: Objection.
14 THE COURT: Overruled.
15 A A profession
al society roster --
16 Q Right.
17 A -- Is not necessarily wording for a mailing list. It
18 could very well be a professional society roster.
19 Q Let me ask you this. A professional society roster.
20 You go to the New York Bar Association on West 44th Street
21 in Manhattan. You obtain a list, the professional society
22 list of all the attorneys that are members of the New York
23 Bar Association. Are you with me?
24 A Yes, I am.
25 Q You obtain that list, right? You buy the list from
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8532 Barnes-cross/Jenks
1 them, okay. Is that not a mailing list? It may contain
2 lawyers but it is still a mailing list.
3 A I don't know if they offer it for sale as a mailing
4 list.
5 Q A professional society roster, ma'am, is it not
6 merely a fancy word for mailing list that you don't want
7 to say "mailing list" to?
8 A No, because they could use it internally to contact
9 their own people. I don't know, it's a list of what their
10 members are.
11 Q Your answer "professional society roster" is not a
12 fancy term or a fancy set of adjectives for "mailing
13 list."
14 MR. WHITE: Objection.
15 THE COURT: Sustained.
16 BY MR. JENKS:
17 Q How about annual reports? You said in Government's
18 Exhibit FT, the letter that was shown to you before, they
19 use the word "annual reports." You use the word annual
20 report, right?
21 A Yes.
22 Q And you gleaned peoples' names from the list of
23 directors of a corporation inside an annual report?
24 A That's correct.
25 Q Those peoples' names could just as well been obtained
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8533 Barnes-recross/Schoer
1 from some business mailing list or some Fortune 500
2 mailing list, correct?
3 THE COURT: Sustained.
4 MR. JENKS: I have no further questions.
5 THE COURT: Anything else?
6 RECROSS-EXAMINATION
7 BY MR. SCHOER:
8 Q Ms. Barnes, that Government Exhibit, what number is
9 it?
10 A 1622.
11 Q Does it have a date on it?
12 A Copyright 1990.
13 Q And of all the brochures that -- withdrawn.
14 You indicated that Judge Spatt had directed you
15 yesterday to go and look for all the brochures that would
16 have the words or some indication that you used mailing
17 lists; is that correct?
18 A He did ask for us to look through what we had
19 provided to -- I don't recall. Maybe he did say mailing
20 lists. I don't recall.
21 Q And the only document that you produced that even has
22 any language like the one that you -- that Mr. Whi
te read
23 was that one document; is that correct?
24 MR. WHITE: Objection.
25 THE COURT: What grounds?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8534 Barnes-recross/Schoer
1 MR. WHITE: She didn't produce it. She produced
2 the 6 box this morning, not that one document.
3 BY MR. SCHOER:
4 Q The only document in the 6 box that were produced
5 this morning that has the language that was read by
6 Mr. White is that one document; isn't that right?
7 MR. WHITE: Objection.
8 THE COURT: Overruled.
9 MR. WHITE: How does she know what was in those
10 boxes?
11 THE COURT: Well, did you see the documents that
12 were in those boxes?
13 THE WITNESS: No, those were pulled together out
14 of our files when I was away on my emergency family leave.
15 THE COURT: So you would have no knowledge one
16 way or the other?
17 THE WITNESS: I have no idea.
18 THE COURT: Okay.
19 BY MR. SCHOER:
20 Q But you did indicate that Exhibit FP, which is in
21 evidence, was the kind of brochure that was sent to people
22 whose names were received from mailing lists; is that
23 correct?
24 A I believe I said this is one of many brochures that
25 are included in the mailings.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8535 Barnes-recross/Schoer
1 Q And is it fair to say that this document says:
2 "Question: Why was I chosen to be considered
3 for inclusion?
4 "Answer: We contacted you because we believe
5 your accomplishments to be of significant reference
6 value."
7 Is that fair to say that that document says that?
8 A If you read it, yes.
9 Q And --
10 THE COURT: I'm going to have to break at this
11 time.
12 MR.
SCHOER: Well, Judge, I have one more
13 question.
14 THE COURT: Go ahead.
15 BY MR. SCHOER:
16 Q If someone's name came from a mailing list, how could
17 you ever believe their accomplishments were of significant
18 reference value just by the fact that their name came from
19 a mailing list?
20 MR. WHITE: Objection.
21 THE COURT: Sustained.
22 All right. Anybody else have any questions?
23 MR. DUNN: I have one or two, Your Honor.
24 THE COURT: Not now.
25 We'll take a recess until 2 o'clock. I told you
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8536 Barnes-recross/Schoer
1 I have to take an extended break.
2 Keep an open mind. Have a nice long lunch.
3 (Luncheon recess taken.)
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8537 Barnes-cross/Dunn
1 A F T E R N O O N S E S S I O N.
2 (Jury enters.)
3 THE COURT: Please be seated, members of the
4 jury.
5 Thank you very much for your patience and to
6 counsel and everyone else to permit me to take care of my
7 own business during the lunch hour.
8 You are still under oath.
9 THE WITNESS: Yes.
10 CROSS-EXAMINATION
11 BY MR. DUNN:
12 Q Good afternoon.
13 Do you remember being asked by Mr. White, you
14 were asked "is there a practice that you follow at Marquis
15 Who's Who when a listee asks you where you got your name?"
16 And you answered "yes."
17 Do you remember being asked that?
18 A Yes, I do.
19 Q And he asked you what the
practice was? And your
20 answer was, "you are generally referring to wording, I
21 explained, and if that is not enough and if they wanted to
22 know the exact source we would ask them to hold on the
23 telephone, bear with us and look it up on the computer."
24 Do you remember testifying to that?
25 A Yes, I do.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8538 Barnes-cross/Dunn
1 Q And do you remember being asked by Mr. White, "is
2 there a practice if after looking at the computer you see
3 it comes from a professional list, you tell them --" and
4 the answer was "yes."
5 Do you remember that?
6 A Yes.
7 Q Do you remember testifying at a proceeding in
8 February of 1994?
9 A I remember testifying at a proceeding, yes.
10 Q Do you remember being asked this question and giving
11 this answer?
12 Question on pag
e 178.
13 MR. WHITE: One moment, please.
14 BY MR. DUNN:
15 Q Do you remember being asked this question, a couple
16 series of questions and giving these answers?
17 "Question: Does your company, I'm talking about
18 the Marquis Who's Who division, have a policy of when a
19 listee or customer or somebody that is a candidate for
20 inclusion in one of your directories calls and says, well,
21 they tell me I'm nominated. Who nominated you? How did I
22 get selected? Do you have a policy for a response to
23 that?
24 "Answer: If we -- I don't know of a specific
25 policy. If it's really important we can find it and tell
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8539 Barnes-cross/Dunn
1 them how they were nominated, if it's very important.
2 Generally we give them an answer of the various ways where
3 the names do come in.
4 "Question: Okay. In other words, generally you
5 don't give it a specific response. You leave it as a sort
6 of unknown; is that right?
7 "Answer: Unless it's very important and then we
8 can tell them where we got the name.
9 "Question: And what does "very important" as you
10 use it in that answer mean?
11 "Answer: Very important just means they
12 absolutely must know."
13 Do you recall being asked those questions and
14 giving those answers back in February of 1994?
15 A I guess I did. You have it written. Yes.
16 MR. DUNN: I would ask the government if that is
17 an accurate reading of the questions and answers of that
18 February 1994 proposing.
19 MR. WHITE: You read it very well.
20 MR. DUNN: So I guess he's stipulating.
21 Thank you, I have no further questions.
22 THE COURT: Anything else?
23 All right. You may step down.
24 THE WITNESS: Thank you.
25 THE COURT: Anything else?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8540
1 Do you want to come up, Counsel.
2 (Side bar.)
3 THE COURT: Are the defendants going to rest?
4 MR. DUNN: I have one thing to put in. As you
5 recall the question about the statements earlier on
6 through Mr. Jordan, I had asked about a form that the
7 postal people used and if we got a blank it would be
8 okay. Mr. White agreed.
9 THE COURT: So you would like to put that in.
10 MR. DUNN: Yes.
11 THE COURT: Do the defendants want to
12 collectively rest?
13 MR. TRABULUS: Defendant Gordon rests.
14 THE COURT: The defendants will rest individually
15 then.
16 MR. WHITE: Your Honor, you said you would give
17 me an opportunity to discuss --
18 THE COURT: I'm giving you the opportunity now.
19 I'll put the jury over until Tuesday. Do you want to take
20 a recess and then talk about it?
21 MR. WHITE: If you can give me ten minutes. It
22 sounds like Your Honor's mind is closed on it, but if you
23 give me ten minutes, Your Honor.
24 THE COURT: Mr. White, my mind is never closed.
25 I do have to come to decision and if you are ever in the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8541
1 enviable position being observed you will make decisions
2 on a daily bases dozens of times. It doesn't mean your
3 mind is closed. That's inappropriate language.
4 MR. WHITE: Your Honor, I didn't mean that.
5 THE COURT: I have made up my mind to the extent
6 I have. Yes, I've made a decision.
7 MR. WHITE: Your Honor, I apologize, that's not
8 what I meant.
9 THE COURT: Well, do you want ten minutes?
10 MR. WHITE: Yes.
1
1 THE COURT: Okay. First we'll put the document
12 in, you'll rest, and then I'll discuss them for ten
13 minutes. If not, then we'll go over until Tuesday and
14 I'll tell them if we need another day we'll call them on
15 the phone. But otherwise we'll start summations on
16 Tuesday morning.
17 MR. TRABULUS: All right.
18 (End side bar.)
19 THE COURT: Mr. Dunn, you may proceed.
20 MR. DUNN: Thank you, Your Honor.
21 On behalf of my client Steve Rubin and pursuant
22 to a stipulation entered into by the United States
23 Government, I'm introducing Defendant's Exhibit FC which
24 is a United States Postal Service form which basically
25 deals with I guess statement-taking of I guess witnesses
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8542
1 or defendants.
2 Would that be fair to say?
3 THE COURT: Don't have that as FC,
Fox Charlie.
4 MR. DUNN: FZ.
5 THE COURT: That's why I always try to give the
6 full name of each alphabetical letter because it is very
7 easy to confuse it.
8 MR. DUNN: It will would be a form from the U.S.
9 Postal Service of taking of statements from someone that
10 is arrested.
11 THE COURT: Very well. Is there any objection?
12 MR. WHITE: I just need to speak to Mr. Dunn.
13 (Counsel confer.)
14 MR. DUNN: And the stipulation further would go
15 it can be used but it is not always used.
16 THE COURT: Okay.
17 MR. DUNN: If it's all right with the Court.
18 THE COURT: Is there any objection?
19 MR. WHITE: No, Your Honor.
20 THE COURT: Defendant's Exhibit FZ, Fox Zebra, in
21 evidence.
22 (Defendant's Exhibit FZ received in evidence.)
23 MR. DUNN: And if it's all right with the Court,
24 I would like to publish it to the
jury, Your Honor.
25 THE COURT: Yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8543
1 Mr. Trabulus.
2 MR. TRABULUS: Your Honor, the defendant Gordon
3 rests.
4 THE COURT: Mr. Jenks.
5 MR. JENKS: Your Honor, with respect to Who's Who
6 Worldwide, Inc., and Sterling Who's Who Inc., both
7 defendants rest.
8 THE COURT: Mr. Schoer.
9 MR. SCHOER: Your Honor, Tara Garboski rests.
10 THE COURT: Mr. Nelson.
11 MR. NELSON: Your Honor, Oral Frank Osman rests.
12 THE COURT: Mr. Lee.
13 MR. LEE: Your Honor, Ms. Weitz rests.
14 THE COURT: Mr. Dunn.
15 MR. DUNN: Your Honor, Mr. Rubin rests.
16 THE COURT: Mr. Neville.
17 MR. NEVILLE: Scott Michaelson rests.
18 THE COURT: Mr. Geduldig.
19 MR. GEDULDIG: Annette Haley rests.
20 THE COURT: And Mr. Wallenstein.
21 MR. WALLENSTEIN: Defendant M
artin Reffsin rests,
22 Your Honor.
23 THE COURT: Does the government wish to put a
24 rebuttal case in or do you wish to take a recess and think
25 about that or what?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8544
1 MR. WHITE: I prefer to take a recess briefly,
2 Your Honor.
3 THE COURT: Members of the jury, we'll take a
4 ten-minute recess.
5 Please do not discuss the case. Keep an open
6 mind.
7 Please recess yourselves.
8 (Jury exits.)
9 (Out of the presence of the jury.)
10 THE COURT: You may proceed, Mr. White.
11 MR. WHITE: I want to address what Your Honor
12 seems to be concerned about with respect to a summary of
13 Magistrate Jordan's pick finding.
14 As I understood Your Honor's comments this
15 morning, it sounded to me like one of the things that
16 concerned Your Honor in ter
ms of the confusion to the jury
17 and whatnot was the fact that I think you used it "it
18 would open up a can of worms" because if that came in well
19 that could trigger in bringing Your Honor's May '95
20 decision and Second Circuit decision as follows. But I
21 think that whole issue is just a red herring.
22 I grant it it's very nice Mr. Trabulus raised it,
23 it's good for his client. But if you actually look at it
24 it doesn't make any sense for this reason. Mr. Trabulus
25 is trying to suggest if you bring that in, well, Your
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8545
1 Honor's decision bears somehow on Mr. Gordon's intent with
2 respect to the money laundering count. But when you look
3 at transactions that have been alleged and proven at this
4 trial with respect to the money laundering count, they end
5 long before Your Honor's
decision. So they could have
6 absolutely no bearing on the money laundering count, Your
7 Honor.
8 The transfers that are alleged to constitute
9 money laundering are out of certain Who's Who Worldwide's
10 accounts into Publishing Ventures, Inc.'s accounts. Those
11 accounts are Exhibit 774 through 776, those are bank
12 statements from European American Bank. Those bank
13 statements only go through December of '94, they only
14 reflect transactions through December of '94.
15 The other Who's Who Worldwide accounts out of
16 which these transfers come is Exhibit 777 through 779,
17 those are from NatWest Bank and those only go through
18 March of '94 which is a year, more than a year before Your
19 Honor's decision.
20 So if one of the bases for keeping it out is that
21 it opens up a can of worms, that if one comes in the other
22 has to come in, there i
s no foundation for that because it
23 has absolutely nothing to do with it. By the time Your
24 Honor's decision comes down, Mr. Gordon has completely
25 ceased, so far as the government's proof, so far as this
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8546
1 trial, there's money laundering activity.
2 In addition, Your Honor mentioned this morning
3 that one of the things that would be confusing would be
4 the difference in the burden of proof and different type
5 of case, that that trademark thing was, trademark
6 proceeding was compared to this trial. Well, that might
7 be true and it might be relevant if we were talking about
9 not what we're doing. We're not trying to say Magistrate
10 Jordan found this was a trademark infringement or I don't
11 want to put in that Magistrate Jor
dan told them not to do
12 it.
13 What I understood Your Honor was producing or at
14 least suggesting a few days ago was that you just enter in
15 a summary of his factual finding which is one of the
16 things I read out of the exhibit, namely, that Who's Who
17 Worldwide's process of selection, that it was misleading
18 to call such a process a nomination. That's a factual
19 finding that Magistrate Jordan made. Now, to that he
20 applied a different legal standard than we are applying
21 here but it's a factual finding and has nothing to do with
22 whether or not with what the legal issue necessarily was
23 in that particular case. And there's a common sense
24 phrase or concept to say that a judge found that this was
25 misleading or deceiving or whatever word you want to use.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8547
1 THE CO
URT: What was the date of the Magistrate
2 Judge's published opinion?
3 MR. WHITE: March 8, 1994.
4 Now, Your Honor, you also indicated that you
5 thought one of the relevant factors tipping against it was
6 the fact that it wasn't until 1994. But if you remember,
7 Your Honor, it is relevant, I think particularly here
8 because if you remember Ms. Benjamin who handled the
9 solicitation letters and said she had numerous
10 conversations with Mr. Gordon about how she felt they used
11 the nominations in the letters were misleading. She said
12 around that time is when she provided that letter to
13 Mr. Gordon to the company's lawyer and Mr. Gordon got
14 upset at her. So that is clearly relevant to what he does
15 after that.
16 Now, just because it is the last year plus an
17 alleged five-year scheme doesn't make it any less
18 relevant. If he didn't have an
y intent up until 1994 but
19 then engage in this from '94 to '95, that still makes him
20 guilty. That doesn't affect overall whether or not he
21 could be found guilty of the crime that is charged.
22 Finally, with respect to the Rule 403 analysis,
23 403 says you have to weigh its probative value versus the
24 unfair prejudice and it says -- it says that the unfair
25 prejudice must substantially outweigh the probative
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8548
1 value. It seems to me, Your Honor, that here the
2 probative value is exceedingly high. This is probably the
3 most probative evidence of Mr. Gordon's intent. You can't
4 get any more probative than a federal judge telling you
5 this is misleading and you continue to do it. You just
6 can't.
7 In white-collar cases when you are talking about
8 the inference of intent, t
he inference that a jury can
9 draw with intent due to fraud you don't get much better
10 than that. So it's an extreme high degree of probative
11 value.
12 With respect to the unfair prejudice, yes, it's
13 prejudicial but is it unfair prejudice? Under Rule 403
14 the advisory committee notes indicate that unfair
15 prejudice means an undue tendency to suggest decision on
16 an improper basis. Commonly, though, not necessarily an
17 emotional one.
18 It seems to me, Your Honor, that here the
19 prejudice would be due, rather than undue. In other
20 words, the jury -- this evidence doesn't have a tendency
21 to make them reach a decision on an improper basis.
22 Rather they would draw a completely proper inference that,
23 gee, if a judge told them not to do it and they continued
24 to do it, that's something we should consider, that tells
25 us that he had
that intent to defraud. So I would suggest
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8549
1 that the prejudice is not unfair prejudice. They would
2 draw an inference that's clearly supportable, that is
3 clearly reasonable.
4 That's my last statement --
5 THE COURT: Does anybody have a copy of Judge
6 Jordan's decision?
7 MR. WHITE: Your Honor, it's Exhibit 299.
8 May I add one other thing?
9 It also seems to me that Mr. Trabulus and the
10 defendants, particularly Mr. Trabulus, has decided to use
11 Your Honor's decision basically as a sword rather than a
12 shield because now they have gotten this evidence of
13 Ms. Barnes in. Mr. Trabulus is up here asking questions,
14 he's slipping notes to people, handing up documents, and
15 the same time he wants to be able to stand back. Well,
16 Mr. Gordon is getting prejudice from
this and I should
17 have a severance. They are trying to exploit Your Honor's
18 ruling.
19 MR. TRABULUS: Your Honor, may I make two
20 points?
21 THE COURT: Just one minute. We'll get more
22 coming now.
23 They are getting more ammunition.
24 (Counsel confer.)
25 MR. WHITE: Ms. Scott points out as well that
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8550
1 Mr. Trabulus' specific questions were directly almost
2 precisely to this issue about what the letter said, what
3 you can draw from the word "nomination" and that sort of
4 thing which is precisely what Magistrate Jordan's decision
5 goes to. I think that's it, Your Honor.
6 THE COURT: I haven't got that document. Does
7 anybody have that?
8 Wait a minute. What number is that?
9 MR. TRABULUS: 299.
10 THE COURT: I haven't got that.
11 An
ybody have a copy of that decision?
12 MR. NELSON: Yes, Judge.
13 MR. WHITE: Actually, Your Honor, I guess the
14 order is 299. The opinion which is what we propose to
15 summarize portions of is 300.
16 THE COURT: 300.
17 MR. NELSON: That would be the next page where I
18 was.
19 MR. WHITE: I have the original, Your Honor. You
20 can give Mr. Nelson back his company, if you want.
21 THE COURT: This is it?
22 MR. WHITE: Yes. Yes, this is 300.
23 THE COURT: Give that back to him, please.
24 MR. WHITE: Yes. 299 is below.
25 THE COURT: What part of this decision is what
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8551
1 you say you point to?
2 MR. WHITE: Your Honor, at page 17, underneath
3 the indented quotation from the statute, Magistrate Jordan
4 says the addressees with very few exceptions are not
5
nominated for membership at all. Their names are obtained
6 by purchasing mailing lists of persons who would seem to
7 qualify for membership. To call such a process a
8 nomination as to be so deceiving to be false in fact.
9 Your Honor was saying that it was just misleading
10 or deceiving.
11 THE COURT: You want me to tell that to the jury
12 that that's what a federal judge said in a civil case and
13 you want that applied as notice to this defendant in the
14 criminal case? Is that what you want? In a trademark
15 infringement setting. I just want to make clear. You
16 want me to tell them this, that a judge said the
17 addressees with very few exceptions are not nominated for
18 membership at all?
19 MR. WHITE: No, Your Honor, I'm sorry.
20 What I was suggesting what we do, before this
21 morning Your Honor had proposed which is not to talk about
22 this
factual finding about how their names are obtained
23 blah, blah, blah because obviously the jury has heard a
24 lot about how the names are obtained themselves, they
25 don't need Magistrate Jordan's decision on that point. I
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8552
1 had understood Your Honor to say that you could summarize
2 it by saying that a federal judge had -- or a judge, I'm
3 sorry, had ruled against Mr. Gordon or against Who's Who
4 Worldwide that --
5 THE COURT: Yes, tell me what -- it's very nice
6 that I said yes, we will get together and get some
7 language. I never went into the specific language, did
8 I? You tell me the specific language you want me to tell
9 the jury. I want you to put on the record now what you
10 want me to tell this jury.
11 MR. WHITE: Okay. Can I have just a moment?
12 THE COURT: Well, you
are arguing I should put
13 something in. What should I put in?
14 MR. WHITE: I'm suggesting, Your Honor, if you
15 want me to work out the precise language, I will.
16 THE COURT: Well, suppose I granted your
17 application, what would I tell the jury? I can understand
18 your consternation. I would have difficulty in composing
19 that would not be reversible error.
20 MR. WHITE: Your Honor, if you would like me to
21 sit here --
22 THE COURT: Mr. White, tell me now what you want
23 to tell me. Now, this is purposes for appeal
24 specifically. Tell me now what you want me to tell this
25 jury.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8553
1 MR. WHITE: Your Honor, if you give me two
2 minutes I will sit here and I will write the precise
3 verbiage.
4 THE COURT: Go ahead and write it down.
5 (Pause in proceed
ings.)
6 MR. WHITE: Okay, Your Honor. We've come up with
7 a proposed summary.
8 If Your Honor has particular parts of this which
9 should be removed or toned down we'll do that.
10 This would be our proposal.
11 "In March 1994, a judge found after a trial that
12 the use of the word "nomination" to describe the selection
13 process used at Who's Who Worldwide was deceiving."
14 THE COURT: Do you wish to be heard,
15 Mr. Trabulus?
16 Not a bad move, Mr. White. That's pretty good.
17 MR. TRABULUS: I object, Your Honor.
18 THE COURT: You got as much out of that as was
19 possible to get.
20 MR. WHITE: But not enough?
21 THE COURT: We will see.
22 MR. WHITE: Okay.
23 THE COURT: We always wait until the end with an
24 open mind, right, Mr. White?
25 MR. WHITE: Absolutely. I'm sorry I said that
OWEN M. WICKER, RPR OFFI
CIAL COURT REPORTER 8554
1 before.
2 THE COURT: Of course.
3 MR. TRABULUS: Your Honor, I'm not going to go
4 through everything but let me make a couple points. The
5 statute being applied by that judge was a civil statute 15
6 U.S.C. 1125(a).
7 THE COURT: You have to go slow because I can't
8 follow you, even as to the statutes, which I'm not totally
9 familiar with right now.
10 MR. TRABULUS: This is a statute, a civil statute
11 prohibiting the use of a false description or
12 representation with respect to goods and services.
13 Civil standards apply, it talks about false
14 description which might include matters of opinion. It
15 might include matters that might not be a basis of a
16 conviction here.
17 Next, Your Honor, there's a factual statement
18 made by Mr. White previously that I think is mistaken. He
19 sa
id with regard to the evidence here of the money
20 laundering, it was all prior to this. I don't believe
21 that's the case.
22 I think the allegations of the money laundering
23 count are that transfers were made for the furnishing of
24 the condominium, the repair, maintenance. Under
25 Government's Exhibit 672 in evidence there were checks and
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8555
1 check stubs of PVI extending up to I think 1996, some of
2 which went towards the maintenance of the condominiums.
3 So we have transfers of money post the original --
4 THE COURT: Doesn't the indictment say to the
5 present date?
6 MR. TRABULUS: It does, but he was saying that
7 the evidence is more limited.
8 THE COURT: That's interesting because the
9 indictment is not date used, I know that indictment, that
10 superseding indictmen
t came down in March of '97. But in
11 any event, the evidence goes beyond March 30th.
12 With regard to misleading the jury in 403(b), as
13 an example of what constitutes misleading the jury, the
14 West's Publishing Company Courtroom Handbook on Federal
15 Evidence gives us an example. Government report on safety
16 of tire excluding under 403(b) because the `jury may have
17 been influenced by the official character of the report to
18 afford it greater weight than it was worth.'"
19 The official character of something coming from a
20 federal judge I cannot imagine a more, or a judge, I
21 cannot imagine anything which might be given more undue
22 weight.
23 THE COURT: Well, they followed my lead in
24 leaving out federal judge. See, that was a good move. In
25 five minutes Mr. White crafted a very good instruction to
OWEN M. WICKER, RPR OFFICIAL COURT
REPORTER 8556
1 the jury. He got the most out of it that he could get. I
2 said that before.
3 MR. TRABULUS: In any event, Your Honor, I'm
4 going to rely on our previous discussions. I don't think
5 there is anything more to add to it.
6 MR. JENKS: Judge, on behalf of Who's Who I would
7 have to join in Mr. Trabulus' arguments concerning the
8 403(b) and the misleading of the jury, as well as the
9 civil standards that would be applicable and I would
10 object also on behalf of Who's Who.
11 MR. LEE: Your Honor, on behalf of Ms. Weitz, I
12 would place my objection on the record. The word trial,
13 after a trial, connotes to this jury perhaps a full
14 litigation, probable tantamount, equal to what we've done
15 here. There has been a prior 15 week trial on issues. It
16 will totally usurp their function in determining that
17 issue and
denying my client a fair trial. I think it is
18 totally misleading, that word.
19 MR. NELSON: Your Honor, if I may be heard.
20 THE COURT: Yes, Mr. Nelson, you've been very
21 quiet. Let's here something from you.
22 MR. NELSON: I would join in the application --
23 THE COURT: Mr. Schoer hasn't given you a chance,
24 I see. Go ahead.
25 MR. NELSON: Your Honor, I would join in the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8557
1 application made by Mr. Trabulus, but for a rather
2 different reason. If the Court might recall I had asked
3 and made a proffer with respect to asking questions of
4 Mr. Pagano about the existence and his knowledge of the
5 existence of 18 U.S. Code Section 1345. Section 1345
6 permits the postal authorities to commence a civil action
7 and to have an injunction brought in federal district
8 court wh
ere there is a preliminary finding of probable
9 cause to believe that there were deceptive practices being
10 engaged in by a company engaged in the telemarketing
11 business.
12 Now, if the government wishes to introduce
13 evidence of Mr. Gordon's knowledge of a finding by a judge
14 that such a practice existed, certainly the same knowledge
15 should be imputed to the United States Government where
16 the action was being brought and to which Mr. Pagano who
17 was actually participating in an investigation at that
18 time of Who's Who Worldwide was involved.
19 I raise that issue as it relates to Mr. Osman for
20 this particular reason, that Mr. Osman was not an employee
21 of Who's Who Worldwide at the time the ruling was issued.
22 Had the government with knowledge of the existence of this
23 decision by a federal court judge which might well have
24 been from a
civil standpoint have a lot more dispositive
25 weight under 1345 than in a criminal proceeding brought
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8558
1 any form of action whatsoever against Who's Who Worldwide,
2 then my client would not have joined the company and
3 certainly would have been put on notice of the existence
4 of some type of finding against him.
5 Now, I know the Court will give a curative
6 instruction that there's no imputation to be made to the
7 other defendants in this case and it's only to Mr. Gordon
8 that it is going to be applied, but I would submit that
9 the prejudicial spillover effect particularly to somebody
10 who wasn't employed at the corporation particularly during
11 the finding would be insurmountable and that's the basis
12 upon which I would join in the application. And I would
13 submit one thing further
, Your Honor.
14 The record, at least as it stands at their point,
15 appears to indicate that the only evidence that exists as
16 to employees' knowledge of the finding is that they were
17 not advised of the finding in the case.
18 My client is on tape with Mr. West where he
19 specifically states to Mr. West, I didn't know anything
20 about the decision, that Mr. Gordon told us otherwise, and
21 Mr. West is the person providing the information to my
22 client as to the status.
23 For all of those reasons I would ask the Court to
24 maintain its prior ruling.
25 MR. DUNN: Your Honor, if I may, on behalf of
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8559
1 Mr. Rubin join in Mr. Nelson's statements because my
2 client, according to the evidence, started work at Who's
3 Who Worldwide in March of 1994, so I would submit that
4 th
ose same arguments would apply to Mr. Rubin as well.
5 THE COURT: Well, it's an interesting evidentiary
6 issue.
7 The government is asking me to confine this to
8 the defendant Gordon and Who's Who Worldwide. I don't
9 know how I could do that very easily. Yes, I could give a
10 curative charge, but when the jury hears that a judge
11 decided after a trial that something occurred, that would
12 mean that of necessity I would have to go into the burden
13 of proof and the cases so hold. In the few cases where
14 they've allowed this partial part of a decision to go in
15 for a specific purpose. The courts have ruled that the
16 trial court properly explained that this was not beyond a
17 reasonable doubt but by a preponderance of the evidence.
18 Can you imagine me trying to explain that to the
19 jury? And then getting involved with preponderance of the
20 evidence i
n a criminal trial at all is, in my view, very
21 dangerous.
22 It's a very discomforting thing for me to think
23 about, discomforting legally, I'm talking about, and
24 fairly.
25 In addition, I think the probative value is very
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8560
1 minimal compared to the prejudicial. I disagree with
2 Mr. White. I think it has very little probative value.
3 There's an overwhelming evidence in this case as
4 to what happened here. I don't think the facts are
5 greatly in dispute as to what happened here. The question
6 is, is it enough for the jury to convict? But there's no
7 real dispute about the facts.
8 For me to add to the til that a federal --
9 withdrawn. You took my advice, a judge said it. I think
10 that tips it the other way and unfairly so. You have to
11 -- I've read through this de
cision. I read it
12 previously, but he talks all about the trademark
13 violations, the General Business Law and all these
14 things.
15 I mentioned this decision in my own decision when
16 I said, and I don't know the citation for my decision, but
17 I'm sure you know it. "The Court does not believe that
18 these findings establish a basis for probable cause that
19 the criminal mail and wire fraud statutes have been
20 violated, whatever the merits of the civil infringement
21 suit. A finding in a trademark infringement suit that a
22 false description or designation of origin deceives the
23 consumer does not establish that the deception is
24 fraudulent within the meaning of the criminal mail fraud
25 statute. . . Judge Jordan's findings in the trademark
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8561
1 infringement action do not h
ave a preclusive effect in
2 this proceeding" and I go on to explain why. . . "the
3 issues regarding fraud are not the same in both cases.
4 Deception in the contention of a false designation or
5 description of origin is different from the intentional
6 fraud perpetrated to obtain someone's money or property
7 that is actionable under the criminal fraud statute."
8 "Moreover, Worldwide, and I can add Gordon, did
9 not have the opportunity in the trademark infringement
10 suit to defend itself against a charge that its operations
11 constituted a scheme or artifice to defraud within the
12 meaning of the criminal mail statute."
13 Whatever I say to this jury that they cannot
14 impute this knowledge to the other defendants, I don't
15 think they'll believe it. They'll have to believe this
16 decision must have been publicized, as I thought -- I
17 thought that the ot
her defendants would have had to have
18 known about it. Of course I saw them shaking their heads
19 when I said that, but that's what I thought. If I thought
20 that, what's a lay jury going to think?
21 It's their boss, their employer and their
22 company. How could they not know about this decision? It
23 would have to be imputed to them. The prejudice is
24 extreme and the government chose to try all of these
25 defendants together.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8562
1 I have to say that the defendants' attorneys have
2 been admirable in not using that to a further extent.
3 This is the first peep about anything I've heard about
4 antagonistic defenses. I think that was very fair on
5 their part, but the government chose to bring Gordon and
6 these defendants together, and I don't want to taint, it's
7 the government's
decision to do that, in the exercise of
8 my discretion and to make sure that this is a fair trial
9 and I don't believe telling that to the jury is not unduly
10 and unfairly prejudicial. I think it is very unfavorably
11 prejudicial and especially to defendants Osman and Rubin
12 who weren't even working there at that time who will be
13 tainted with the same brush.
14 A judge already decided this. We have to go
15 along with that. My God, it's the most unduly prejudicial
16 thing you can ever have.
17 Accordingly, I adhere to my decision.
18 All right. What's next?
19 MR. WHITE: You're asking me, Your Honor?
20 THE COURT: Yes, you. They've rested.
21 MR. WHITE: The government has nothing else. As
22 I said that was the only issue.
23 THE COURT: So you will rest also?
24 MR. WHITE: Yes.
25 THE COURT: So now we'll bring the jury in and
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8563
1 this is what we'll do. We'll start this afternoon going
2 over the motions and start the charge, perhaps the
3 boilerplate portions of the charge and then we'll go over
4 until early Monday morning. I was going to say real
5 early, but I saw my court reporter wince, he grimaced.
6 No reflection on you, Ms. Laura Weitz. I noticed
7 you haven't done that since that time.
8 So we'll go over until 9 o'clock after we get
9 through this afternoon on Monday. We'll get through with
10 the charge, start the summations Tuesday morning and we'll
11 talk about the time of summations. That's what we'll do.
12 Everybody agree?
13 Anybody disagree?
14 Okay.
15 (Jury enters.)
16 THE COURT: Please be seated, members of the
17 jury.
18 Ms. Scott.
19 MS. SCOTT: The government rests.
20 THE COURT: Members of the jury, all sides have
21 rested. There will be no further evidence given to you at
22 this trial. What remains are the closing arguments of
23 counsel. Since we have ten -- do we have ten lawyers
24 here? Since we have ten lawyers, each one has to have an
25 opportunity to express to you his or her view of the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8564
1 evidence. These closing arguments, also known as
2 summations, as I told you are not evidence, you've heard
3 the evidence in the case. The evidence is from the
4 testimony of the witnesses and the exhibits and
5 stipulations that you've heard, but the closing arguments
6 are very important. You must listen carefully to what the
7 lawyers have to say. They'll give you their view of what
8 the evidence has shown. If anything they say about the
9 facts doe
s not coincide with your recollection of the
10 facts, of course you accept your own.
11 After that I will instruct you on the rules of
12 law involving the various counts which you must consider
13 separately against every defendant with respect to every
14 separate count as I will instruct you.
15 Before the lawyers sum up you are entitled to
16 know what I'll tell you on the law. They are entitled to
17 have input what I will tell you on the law. That means I
18 have to discuss this with them. It is a long session to
19 do that. It will take at least the rest of the afternoon
20 and all of Monday to do that, so we'll recess you until
21 Tuesday morning at 9:30 when we'll start the summations.
22 In all likelihood the summations will take two
23 days to complete. That would be Tuesday and Wednesday.
24 On Thursday I will instruct you and you will
25 start deliberati
ng.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8565
1 In the event that it takes longer for me to
2 discuss the law with the lawyers than Monday, we will --
3 we have your telephone numbers and we will call you in
4 time to come in Wednesday instead of Tuesday. But
5 hopefully we can start on Tuesday.
6 It is increasingly important that you not discuss
7 this case, that you keep an open mind, that you have no
8 conclusions and that you do not begin making any
9 determinations until you're in that jury room exchanging
10 your views.
11 The defendants are presumed innocent until the
12 very end, until that time, if ever, if ever, in that jury
13 room you find the government has proved their guilt beyond
14 a reasonable doubt. When I say "they," I mean each one
15 separately as to each separate count must be considered.
16 So, we
will recess now until Tuesday which I
17 figure is March the 24th at 9:30, and you have a nice
18 period of time to -- of course you know what my
19 recommendation is, go to work. Make up for this time that
20 you've productively put in, productively as performing one
21 of the most important functions of an American citizen.
22 So I wish you have a nice weekend, extended
23 weekend, and we'll see all of you, all 14 of you, on
24 Tuesday, March 24th, at 9:30.
25 Have a nice weekend.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8566
1 (Jury exits.)
2 THE COURT: Motions at the end of the entire
3 case.
4 MR. TRABULUS: Your Honor, on behalf of defendant
5 Gordon, I renew the defendant Gordon's motion for a
6 judgment of acquittal on all counts, and when I say I
7 renew it, I renew the one I made originally and I now make
8
another one also for a judgment of acquittal now taking
9 into account all the evidence heard thus far.
10 THE COURT: I deny the motions except as to the
11 perjury.
12 MR. TRABULUS: I think on the money laundering
13 you also reserved.
14 THE COURT: Perjury and money laundering I
15 reserved and I adhere to those decisions and make the same
16 decisions.
17 MR. JENKS: With respect to the two corporations,
18 I make a motion for acquittal under Rule 29 of the Federal
19 Rules of Criminal Procedure and renew the arguments
20 previously made.
21 THE COURT: I adhere to my original ruling.
22 MR. SCHOER: Judge, with respect to Ms. Garboski,
23 I reiterate the arguments made at the end of the People's
24 case and again ask Your Honor to dismiss under Rule 29 all
25 the counts of the indictment that remain against the
OWEN M. WICKER, RPR OFFICIAL
COURT REPORTER 8567
1 defendant.
2 THE COURT: I deny all the motions as I do in
3 Mr. Jenks' case.
4 MR. NELSON: On behalf of Mr. Osman, I likewise
5 renew all the arguments I made on behalf of Mr. Osman at
6 the end of the government's case as to the conspiracy
7 count and all substantive charges against him.
8 I would also like to add at this point, I would
9 ask the Court to reconsider its ruling with respect to the
10 conspiracy to commit mail fraud in light of the testimony
11 adduced on the defendants' case, particularly it was
12 testified to today concerning the custom and practice in
13 the industry with respect to the use of the mailing lists
14 and the utilization of the word nominate in a letter which
15 is sent to individuals by Marquis Who's Who, who in fact,
16 were received, whose names are acquired from mailing
17 lists.
18 THE COURT: I have considered all the evidence in
19 the case as I must at the end of the entire case and I
20 deny your motion as I previously did.
21 MR. LEE: Judge, on behalf of Ms. Weitz, I move
22 pursuant to Rule 29 of a judgment of acquittal also based
23 on the new evidence adduced after the defense case.
24 THE COURT: Motion denied as I previously did
25 having taken into consideration the evidence in the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8568
1 defendants' case.
2 MR. DUNN: Your Honor, I also renew my arguments
3 that I made during the Rule 29 on behalf of Mr. Rubin at
4 the end of the government's case. I again make those
5 applications. I also join in specifically Mr. Nelson's
6 statements concerning Ms. Barnes' testimony especially in
7 reference to materiality and also I think it puts into
8 serious --
9 THE COURT: In reference to what?
10 MR. DUNN: Materiality. And also puts into
11 serious question whether the government has proved beyond
12 a reasonable doubt the good faith of the defendants,
13 particularly Mr. Rubin, based on her testimony concerning
14 nominations and the use of mailing lists.
15 THE COURT: Well, materiality apparently,
16 according to the customers who testified, was that they
17 were getting something special, an honor which they were
18 selected for and that's very, very material. That's the
19 reason this case is going to the jury. Mailing lists are
20 only part of the situation.
21 Your motion is denied.
22 MR. DUNN: Thank you, Your Honor.
23 MR. NEVILLE: Your Honor, on behalf of Scott
24 Michaelson I join in my esteemed co-counsel's motion.
25 THE COURT: Motion denied.
OWEN M. WICKER, RPR OFFICIAL COURT REPOR
TER 8569
1 MR. GEDULDIG: I also join in the arguments put
2 forth by my co-counsel, I make an application for
3 acquittal.
4 THE COURT: Application denied.
5 MR. WALLENSTEIN: I rule under Rule 29 for
6 acquittal, but I think Mr. Reffsin is a little different.
7 He has testified, he has character testimony before this
8 jury and he has testimony of Mr. Rizino before this jury,
9 and I think the net effect of Mr. Reffsin's defense case
10 is to bring us to the point where no rational trier of the
11 fact could find that the government has proven Mr.
12 Reffsin's guilt beyond a reasonable doubt.
13 Accordingly, I would move for a judgment of
14 acquittal and would reiterate the arguments I made at the
15 conclusion of the government's case as well.
16 THE COURT: A close case. This entire case is
17 close. We have seen the law evolving in mai
l fraud by
18 various decisions of the Second Circuit. The Miller case,
19 the former speaker of the assembly. The Armand D'Amato
20 case. You've seen the Second Circuit mold the law with
21 regard to mail fraud.
22 As I said this is close. However, I think at
23 this point the government has made out a case where a
24 reasonable jury, a rational jury listening to the evidence
25 could on the guidelines that I have to go by which is did
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8570
1 these fraudulent representations, if they prove to be
2 fraudulent misrepresentations, obtain money as a result of
3 false representations? And I think the government has
4 made out a case at this point sufficiently to go to the
5 jury. It is close.
6 MR. WALLENSTEIN: Well, given that Mr. Reffsin is
7 not charged with mail fraud.
8 THE COURT: And
your case being different from
9 that is also close, but I think they've made out a case
10 with the logs, the situation with the logs, the testimony
11 of Maria Gaspar, and other evidence in the case with
12 regard to evasion of taxes that were admittedly due.
13 I'm not prepared to say the government has not
14 made out a case. Enthusiastically, I'm not, but I'm not
15 prepared to say they've not made out a case.
16 Your motion is denied.
17 We'll take a ten-minute recess and then we'll
18 start going over the charge.
19 (Recess taken.)
20 MR. WALLENSTEIN: Your Honor, I have handed up a
21 request to charge on behalf of Mr. Reffsin and a courtesy
22 copy to chambers and I've handed each counsel a copy.
23 THE COURT: Very well. Have a seat.
24 You can take this, Mr. White. That's the order
25 and judgment.
OWEN M. WICKER, RPR OFFICIAL COU
RT REPORTER 8571
1 MR. WHITE: A lot of good it did me, Your Honor.
2 THE COURT: Now, I'm going to go over the
3 boilerplate portions of the charge and I'll read the parts
4 I think are particularly relevant to this case and if you
5 want to hear any other parts let me know.
6 I tell the jury what their duties are which is to
7 find the facts from all the evidence of the case. They
8 are the sole judges of the facts and they are performing
9 one of the most important duties of American citizenship.
10 It is their recollection of the evidence that controls.
11 To the facts as you find them you must apply the law in
12 accordance with my instructions.
13 While the lawyers may have commented on some of
14 these legal rules you must be guided only by what I
15 instruct you on the law.
16 You must follow all the rules as I explained them
17 to
you. You may not follow some and ignore others. Even
18 if you disagree with or don't understand the reasons for
19 some of the rules, you are bound to follow them.
20 You are not to single out one instruction alone
21 as stating the law but must consider the instructions as a
22 whole.
23 The parties are equal before the Court.
24 Does anybody want to hear that charge?
25 Presumption of innocence and burden of proof.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8572
1 Do you want to hear that?
2 MR. JENKS: I would like to hear presumption of
3 innocence, Your Honor.
4 THE COURT: The defendants are before you because
5 they have been charged in an indictment with violations of
6 federal law. You must remember that an indictment is only
7 an accusation. It is not evidence. It is entitled to no
8 weight in your determination of the
facts. You will be
9 provided with copies of the indictment solely to assist
10 you in your deliberations and to aid your understanding of
11 the Court's instructions.
12 By the way, have you provided the new
13 indictment? Have you prepared one?
14 MS. SCOTT: No, Your Honor. I'm not finished
15 with it yet.
16 THE COURT: But you will have to by Monday.
17 MS. SCOTT: By Monday I will.
18 THE COURT: All right.
19 The defendants have pleaded not guilty to all the
20 counts in the indictment thereby placing in issue each
21 allegation in each count in the indictment.
22 In a criminal case the government has the burden
23 of proving guilt beyond a reasonable doubt as to each
24 element of the crime a defendant is charged with
25 committing.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8573
1 This burden never shift
s to a defendant. A
2 defendant in a criminal case does not have to prove his or
3 her innocence and he or she need not call any witnesses or
4 produce any evidence.
5 The law presumes each defendant to be innocent of
6 all the charges against him or her. I instruct you that
7 each defendant is to be presumed by you to be innocent
8 throughout your deliberations until such time, if ever,
9 you as a jury unanimously find that the government has
10 proved the defendant to be guilty beyond a reasonable
11 doubt. If the government fails to prove the defendant
12 guilty beyond a reasonable doubt as to any count, you must
13 find the defendant not guilty as to that count. Although
14 in this case some of the defendants have introduced
15 evidence in their defense, they were not required to do
16 so. The fact that these defendants have introduced
17 evidence does not in any
way change the rule, that the
18 burden of proof is always on the government.
19 Reasonable doubt. Do you want to hear it?
20 MR. NELSON: Yes.
21 THE COURT: Because the law requires the
22 government to prove a defendant in a criminal case guilty
23 beyond a reasonable doubt, the question naturally arises
24 what is a reasonable doubt. The words almost define
25 themselves. A reasonable doubt is a doubt based upon
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8574
1 reason and common sense. A reasonable doubt is not mere
2 speculation or suspicion, it is not an excuse to avoid the
3 performance of an unpleasant duty. It should not be based
4 on sympathy. A reasonable doubt is a doubt based upon
5 reason and common sense, the kind of doubt that would make
6 a reasonable person hesitate to act.
7 A reasonable doubt can arise from the evidenc
e
8 and also from the lack of evidence. It is a doubt that
9 would cause a reasonable person to hesitate to act in the
10 most important matters of his or her personal life.
11 Proof beyond a reasonable doubt is not proof
12 beyond all doubt, rather, it is proof of such a convincing
13 character that a reasonable person would not hesitate to
14 rely and act upon it in the most important matters of his
15 or her own lives.
16 If after a fair and impartial consideration of
17 all of the evidence in this case you are satisfied of a
18 defendant's guilt beyond a reasonable doubt, you should
19 vote to convict. On the other hand, if after a fair,
20 impartial and careful consideration of all the evidence
21 you have a reasonable doubt as to a defendant's guilt, you
22 must acquit the defendant.
23 Types of evidence. Do you want to hear that?
24 MR. SCHOER: Circums
tantial evidence?
25 THE COURT: No, not yet. You don't want to hear
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8575
1 types of evidence.
2 Types of evidence, I tell them that, again, the
3 indictment is not evidence, the statements made by the
4 attorneys. I explain what a stipulation is. Then I
5 explain what is not evidence, the arguments are statements
6 by counsel, unanswered questions. I explain that I
7 occasionally have asked questions of a witness and they
8 are not to assume that I hold any opinion and my questions
9 have no special significance.
10 Objections to the questions are not evidence,
11 statements made by the attorneys while making objections
12 are not evidence. I tell the jury that the attorneys have
13 a right and indeed a duty to object and request a side bar
14 conference when they believe evidence should not be
15 received. They should not be influenced by the objection
16 or the Court's ruling on it. I advise them any testimony
17 that I have stricken from the record is not evidence.
18 Anything they've seen or heard outside the
19 courtroom is not evidence.
20 Should I put anything here about reports in the
21 press? I haven't seen any reports in the press.
22 MR. WHITE: Not for three years, Your Honor.
23 THE COURT: Do you want me to take that out of
24 there?
25 Here's what I say. Your verdict must be based
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8576
1 solely on the evidence presented in this courtroom in
2 accordance with my instructions. You must completely
3 disregard any report which you may have read in the
4 press. I don't think we need that.
5 It would be improper for you to consider in
6 reaching your decisio
ns as to whether the government has
7 sustained --
8 MR. LEE: I'm sorry, Your Honor. I would ask
9 that that charge on the press be included.
10 THE COURT: Okay.
11 It would be improper for you to consider in
12 reaching your decisions as to whether the government
13 sustained its burden of proof. Any personal feelings you
14 may have about the defendant's race, religion, national
15 origin, ethnic background, occupation, sex or age. All
16 persons are entitled to the presumption of innocence and
17 the government has the same burden of proof as to every
18 defendant.
19 In addition, it would be equally improper for you
20 to allow any feelings you have or may have about the
21 nature of the crimes charged to influence your
22 decision-making process.
23 The defendants --
24 MR. WHITE: Were you going on to another
25 instruction?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8577
1 THE COURT: I'm moving on to another question.
2 MR. WHITE: On that one may I ask a question?
3 THE COURT: Yes.
4 MR. WHITE: With respect to the part where the
5 attorneys questions are not answers. The reasons I raise
6 it we have a lot of questions to the witness did you know
7 that such and such happened or took place when there was
8 no evidence that that was the case.
9 I was wondering if we can make it a little more
10 explicit in some suitable terms saying basically don't
11 assume because a witness has been asked something or a
12 fact has been incorporated into a question that it is
13 necessarily true.
14 THE COURT: I don't think that is necessary. If
15 it's an answer to the question, it's evidence. Why would
16 I charge the jury on that? If it's an unanswered question
1
7 they are to pay no attention to it.
18 MR. WHITE: No. For example, a witness would be
19 asked, did you know such and such event took place? And
20 the witness would go, no, because they have no knowledge
21 of it, one way or the other. I just don't think they
22 should assume that that event took place. I could ask a
23 witness, did you know that the earth was flat? And they
24 say, no, that doesn't mean that the earth was flat. I
25 mean, we've had an awful lot of those questions to victims
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8578
1 and everybody else. Did you know that Marquis does this
2 and Marquis does that.
3 THE COURT: I don't think we had any more than
4 any other trial. I don't believe I have an instruction.
5 Do you have such an instruction?
6 MR. WHITE: No, Your Honor. Was the wording of
7 Your Honor's instruction j
ust simply that the
8 attorney's --
9 THE COURT: Let me see here. Questions put to
10 the witnesses that are not answered are not evidence.
11 That's all I say.
12 MR. GEDULDIG: Judge, I would object to any kind
13 of instruction like that. Mr. White is talking about
14 apparently a question which assumes a fact not in
15 evidence. Those questions are improper. They should have
16 been objected to. The questions that are posed and that
17 we have answers to the jury can consider. I don't think
18 we should qualifying questions which were answered and I
19 would object to any kind of specific instruction such as
20 what Mr. White is suggesting.
21 MR. LEE: Also, Your Honor, I think it creates
22 the risk of drawing undue attention to a certain type of
23 question about perhaps undue weight one way or the other
24 given to that. You are drawing their attention
to a
25 particular piece of evidence and I think that would
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8579
1 encroach on the jury's function.
2 MR. WHITE: Here's an example of what I mean.
3 There was a series of questions, one of them was to
4 customer witnesses. "Do you know that Marquis Who's Who
5 now, after they put Mr. Gordon out of business, offers a
6 CD ROM? Do you know that Marquis now offers memberships
7 or something like that?"
8 Now, there has been no evidence one way or the
9 other about that fact and the witnesses, obviously knowing
10 nothing about that answered no, I don't know anything
11 about that.
12 THE COURT: So that's the evidence. No.
13 MR. WHITE: All I'm saying, the jury should be
14 instructed that it's not simply that they should not
15 assume --
16 THE COURT: Where did you get this instr
uction
17 from? This is something new. I've been around a long
18 time. I've never heard that before. Of course I can
19 always learn since I have an open mind at all times.
20 MR. WHITE: I know that.
21 THE COURT: Where did you get that from?
22 MR. WHITE: Your Honor, I don't have a specific
23 -- it just struck me as common sense that the jury should
24 understand that they can't assume just because a lawyer
25 has included something in his question that it's true.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8580
1 THE COURT: What do you take these jurors for,
2 Mr. White? Are they ignorant, completely? They
3 understand English, they know what the evidence is. The
4 evidence is the answer to the question. The answer is no.
5 MR. WHITE: But the question was always phrased
6 "do you know that such and such happened?"
7 THE COUR
T: Mr. White, where is the charge that
8 you want me to give?
9 MR. WHITE: You want me to compose it again?
10 THE COURT: Well, I never heard of any. I can't
11 compose something that I don't think is necessary or ever
12 heard of.
13 MR. WHITE: Okay, I will compose it to Your Honor
14 and I'll submit it.
15 THE COURT: Then you can do that and I'll take a
16 look at it with an open mind.
17 The defendants are being charged only with the
18 crimes being set forth in the indictment and no others.
19 You can consider all the evidence in the case in making
20 your determinations as to guilt and lack of guilt, except
21 where I have indicated otherwise. However, I instruct you
22 that evidence admitted only for a limited purpose may only
23 be considered by you for such purpose.
24 MR. TRABULUS: Your Honor, I've requested some
25 lesser included with resp
ect to the tax counts and if that
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8581
1 is granted perhaps some language with the crimes in the
2 language would have to be modified in in some way.
3 THE COURT: I'll make a note of it.
4 MR. SCHOER: Judge, could you read the last part
5 of that relating to limited to a particular purpose. I
6 would ask that you indicate also in that phrase, I don't
7 know if you will cover it somewhere else, but that it's
8 limited to a particular defendant --
9 THE COURT: No, I'll cover it here.
10 That evidence admitted only for a limited purpose
11 or as against a particular defendant.
12 MR. SCHOER: Yes.
13 THE COURT: Okay.
14 Now, I tell the jury about jury note taking. Are
15 you interested in that?
16 MR. WALLENSTEIN: Yes.
17 THE COURT: During the trial I permitted the
18 tak
ing of notes by those of you who wish to do so, and I
19 did notice some of the jurors, a number of the jurors took
20 notes. At that time I pointed out while you could take
21 notes there is no need for your doing so, since the court
22 reporter takes down everything that is said in the
23 courtroom and during your deliberations will read back to
24 you any portion of the transcript you may ask for.
25 I also advised you to be careful since taking
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8582
1 notes presents the further problem that doing so may
2 divert your attention from some very important testimony
3 given while you are taking the notes.
4 In the event some of you did take notes, and in
5 fact they did, for those of you who did take notes during
6 the trial, I point out to you and your fellow jurors that
7 your notes are simply an aid t
o memory for the particular
8 juror who takes the notes. You are instructed that your
9 notes are only a tool to aid your own individual memory
10 and you should not compare your notes with other jurors in
11 your deliberations. And jurors who did not take notes
12 should not be influenced by the fact that another juror
13 has taken -- that other jurors have taken notes. Your
14 notes are not evidence, may be inaccurate and are by no
15 means a complete recording of the trial testimony.
16 Next, interview of witnesses.
17 Do you want to hear that?
18 Well, I better tell you.
19 There was testimony at the trial that the
20 attorneys for the government, and I don't think there was
21 any testimony that the defense interviewed any witnesses,
22 was there?
23 MR. WHITE: Your Honor, there was questions to
24 Mr. Ackerman about whether or not he would submit to a 25 defense interview. I don't know if that is true.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8583
1 MR. TRABULUS: That's true.
2 THE COURT: It is. But he didn't say that he was
3 interviewed.
4 MR. WHITE: No, but he said he was willing to be
5 interviewed in the presence of the government.
6 THE COURT: The only people that the witnesses
7 say they were interviewed by were by the government.
8 MR. WHITE: I think that's right.
9 THE COURT: There was testimony at the trial that
10 the attorneys for the government interviewed witnesses
11 when preparing for and during the course of the trial.
12 You should not draw any unfavorable inference from that
13 conduct. The attorneys for the government and the
14 defendants had a right to prepare this case as thoroughly
15 as possible and properly can interview witnesses before
1
6 this trial began and throughout the course of the trial.
17 Failure to name a defendant.
18 I'll tell you that one too because Mr. Jenks
19 wants to hear it.
20 You may not draw any inference favorable or
21 unfavorable to the government or the defendants from the
22 fact that certain people were named as defendants in the
23 indictment. The circumstances that these other persons
24 were not indicted may play no part in your deliberations.
25 Your concern is solely with regard to the defendants on
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8584
1 trial before you.
2 Whether a person should be named as a
3 co-conspirator or indicted as a defendant is a matter
4 within the sole discretion of the United States Attorney
5 and the grand jury. Therefore, you may not consider that
6 fact in any way in reaching your verdict as to the
7 defendants on trial.
8 Common counsel and counsel cooperation. I'm sure
9 you want to hear that one.
10 MR. DUNN: Yes.
11 MR. WALLENSTEIN: Yes.
12 THE COURT: You may have noticed during the trial
13 that counsel for the defendants have consulted with each
14 other in an effort to facilitate their presentation and to
15 avoid duplication. The fact that defense counsel have
16 consulted and cooperated with each other in the conduct of
17 their defense is not to be considered by you as having any
18 significance with respect to the issues in the case. The
19 issue of each defendant's guilt is personal and you must
20 make a separate determination as to whether or not each
21 defendant's guilt as to each count has been proven beyond
22 a reasonable doubt. In making that judgment, you are to
23 disregard entirely the circumstance that counsel for the
24 defenda
nts have consulted together during the trial.
25 Indeed, especially in a case of this length, it
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8585
1 would be unusual and wasteful of time and effort if
2 counsel did not share the burdens of the defense.
3 Multiple counts, multiple defendants.
4 The indictment contains a total of, I don't know
5 how many, I think it is 69 counts now, four counts were
6 dismissed.
7 MR. WHITE: I think that's right. Yes.
8 MR. SCHOER: It might be five counts that were
9 dismissed.
10 THE COURT: 2, 39, 40 and 47 is what I have.
11 MR. SCHOER: I'm not sure, Judge. I'm sure your
12 notes are correct.
13 MR. WHITE: Your Honor, our notes indicate those
14 were the only ones that were dismissed with respect to all
15 the defendants.
16 THE COURT: That's what I mean.
17 MR. SCHOER: 2, 39,
40 and 47.
18 THE COURT: That's correct.
19 MR. SCHOER: I'm sorry.
20 THE COURT: The indictment contains a total of 69
21 counts. Each count charges one or more of the defendants
22 with a different crime.
23 Members of the jury, as you know there are ten
24 defendants on trial before you. You must, as a matter of
25 law, consider each count of the indictment and each
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8586
1 defendant's involvement with that count separately and you
2 must return a separate verdict with regard to each
3 defendant for each count in which he or she is charged.
4 In this regard the written verdict sheet I will
5 furnish you will be of help to you in recording your
6 verdict. It is your duty to give separate individualized
7 consideration to the case of each defendant. For each
8 count you should analyze w
hat the evidence shows or fails
9 to show with respect to each defendant.
10 Direct and circumstantial evidence. Do you want
11 to hear that?
12 MR. SCHOER: Yes.
13 MR. TRABULUS: Yes.
14 THE COURT: I told you that evidence comes in
15 various forms such as the sworn testimony of witnesses and
16 exhibits. There are, in addition, different kinds of
17 evidence, direct evidence and circumstantial evidence.
18 Direct evidence is where a witness testifies to
19 what he or she saw or heard. In other words, when a
20 witness testifies about what is known to him or her by
21 virtue of his or her own senses, what the witness sees,
22 touches, hears, that is called direct evidence.
23 Circumstantial evidence is evidence which tends
24 to prove or disprove a disputed fact by proof of other
25 facts.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
8587
1 There is a simple example of circumstantial
2 evidence which is often used. Assume that when you came
3 into the courthouse this morning the sun was shining and
4 it was a nice day. Also assume, as is the case, that this
5 courtroom has no windows and you cannot look outside. As
6 you are sitting here someone walks in shaking an umbrella
7 which is dripping wet. Somebody else then walks in with a
8 raincoat which is also dripping wet. Now, you cannot look
9 outside of the courtroom and you cannot see whether or not
10 it is raining, so you have no direct evidence of that
11 fact. But on the combination of facts which I've asked
12 you to assume, it would be reasonable and logical for you
13 to conclude that at that moment it was raining outside.
14 Of course not all circumstantial evidence
15 presents a clear, compelling inference and the strengths
16 of the inferences arising from other circumstantial
17 evidence is for you to determine. That is all there is to
18 circumstantial evidence. You infer on the basis of reason
19 and experience and common sense from an established fact
20 the existence or the nonexistence of some other fact.
21 Please bear in mind, however, that an inference
22 is not to be drawn by guesswork or speculation.
23 Circumstantial evidence is of no less value than direct
24 evidence for it is a general rule that the law makes in
25 distinction between direct and circumstantial evidence,
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8588
1 but simply requires that before convicting a defendant the
2 jury must be satisfied of the defendant's guilt beyond a
3 reasonable doubt from all of the evidence in the case.
4 You are to consider all the evidence in the case
5 both
direct and circumstantial in determining what the
6 facts are and in arriving at your verdict.
7 Discrepancies in the testimony. Do you want to
8 hear it?
9 MR. TRABULUS: Yes.
10 THE COURT: You have heard evidence of
11 discrepancies in the testimony of certain witnesses and
12 counsel may have argued that such discrepancies are a
13 reason for you to reject the testimony of those
14 witnesses. You are instructed that evidence of
15 discrepancies may be a basis to disbelieve a witness'
16 testimony.
17 On the other hand, discrepancies in a witness'
18 testimony or between his and her testimony and that of
19 others does not necessarily mean that the witness' entire
20 testimony should be discredited.
21 People sometimes forget things and even a
22 truthful witness may be nervous and contradict him or
23 herself. It is also a fact that two people wit
nessing an
24 event will sometimes see or hear it differently. Whether
25 a discrepancy pertains to a fact of importance or only to
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8589
1 a trivial detail, should be considered in weighing its
2 significance, but a willful falsehood always is a matter
3 of importance and should be considered seriously.
4 It is for you to decide based on your total
5 impression of the witness, including the discrepancies, if
6 any, in his or her testimony. Well, I have to finish
7 that.
8 Whether to believe the witness.
9 Finally you should, as always, use your common
10 sense and your own good judgment.
11 Credibility of witnesses.
12 As the jurors, you are the sole judges of the
13 credibility of the witnesses and the weight their
14 testimony deserves. You should carefully scrutinize all
15
the testimony given, the circumstances under which each
16 witness testified and every matter in evidence that tends
17 to show whether a witness is worthy of belief. Your
18 decision whether or not to believe a witness may depend on
19 how that witness impressed you.
20 Was the witness candid and forthright or did the
21 witness seem as if he or she was hiding something, being
22 evasive or suspect in some way? How did the way the
23 witness testify on direct examination compare with how the
24 witness testified on cross-examination? Was the witness
25 consistent in his or her testimony or did he or she
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8590
1 contradict himself or herself? Did the witness appear to
2 know what he or she was talking about? Did the witness
3 strike you as someone who was trying to report his or her
4 knowledge accurate
ly?
5 How much you choose to believe a witness may be
6 influenced by any bias, resentment or anger that you may
7 perceive the witness to have.
8 Does the witness have a relationship with the
9 government or a defendant that may effect how he or she
10 testified? Does the witness have some incentive, loyalty
11 or motive that might cause him or her to shade the truth,
12 or does the witness have some bias, prejudice or hostility
13 that may have caused the witness consciously or not to
14 give you something other than a complete accurate account
15 of the facts?
16 Even if you think a particular witness was
17 impartial, you should consider whether the witness had an
18 opportunity to observe the facts that he or she testified
19 about and you should also consider the witness' ability to
20 express him or herself. Ask yourselves whether the
21 witness' recol
lections of the facts stands up in light of
22 all the other evidence.
23 Inconsistencies or discrepancies in the testimony
24 of a witness or between the testimony of different
25 witnesses may or may not cause you, the jury, to discredit
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8591
1 such testimony. As I said, people sometimes forget
2 things. In weighing the effects of a discrepancy you
3 should consider whether it pertains to a matter of
4 importance or an unimportant detail and whether the
5 discrepancy results from an innocent error or intentional
6 falsehood.
7 If you find that any witness has willfully
8 testified falsely as to any material fact, you may
9 disregard completely the entire testimony of that witness
10 upon the principle that one who testifies falsely about
11 one material fact is quite likely to testify falsely
about
12 everything.
13 You are not required, however, to consider such a
14 witness as totally unworthy of belief. You may accept so
15 much of his or her testimony as you deem true and
16 disregard what you feel is false.
17 You may consider the factors I have just
18 discussed with you among others in deciding how much
19 weight to give to the testimony of each witness.
20 Summaries and charts.
21 Certain charts and summaries were shown to you in
22 order to make the other evidence more meaningful and to
23 aid you in considering the evidence. I decided to admit
24 the summaries and charts, in addition to the underlying
25 documents that they represent in order to save time and
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8592
1 avoid unnecessary inconvenience. They are no better than
2 that the testimony or the documents upo
n which they are
3 based and are not themselves independent evidence.
4 Therefore, you are to give no greater consideration to
5 these charts or summaries then you would give to the
6 testimony upon which they are based.
7 It is for you to decide whether the charts and
8 summaries correctly present the information contained in
9 the testimony and in the exhibits on which they are
10 based. You are entitled to consider the charts and
11 summaries if you find that they are of assistance to you
12 in analyzing and understanding the evidence.
13 Tape-recordings and transcripts.
14 MR. SCHOER: Judge, I don't mean to interrupt --
15 THE COURT: Interrupt, that's what we're here
16 for.
17 MR. SCHOER: The credibility questions, do you
18 later on talk about witnesses who have immunity and
19 witnesses who have cooperation agreements?
20 THE COURT: Yes.
21 MR. JENKS: It's separate.
22 THE COURT: Yes.
23 MR. JENKS: You put that right after credibility
24 of witnesses?
25 THE COURT: No, someplace else. If you think it
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8593
1 should be put in another place you can tell me.
2 MR. JENKS: Okay.
3 MR. SCHOER: Thank you.
4 THE COURT: There are some thoughts that the
5 later in the charge the better. There are some thoughts
6 the earlier in the charge -- the better for you I'm
7 talking about, but that's a matter of opinion. Do they
8 hear it early or later? That's your view.
9 This is the way I put it in.
10 Tape-recordings and transcripts.
11 You have heard evidence in the form of
12 tape-recordings of conversations which were obtained
13 without the knowledge of the defendants. I instruct you
14 that the recordings of
those conversations were lawfully
15 obtained. The use of this procedure to gather evidence is
16 perfectly lawful and the government has a right to use
17 such evidence in this case.
18 During the course of the trial you were given
19 transcripts to assist you in listening to those
20 tape-recordings. As I instructed you during the trial if
21 the transcripts varied in any way from what you heard on
22 the tape-recordings, it was what you heard which is
23 controlling.
24 Particular investigative techniques not
25 required.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8594
1 Do you want me to charge that, Mr. White?
2 MR. WHITE: Can I hear it first?
3 THE COURT: You have heard reference in the
4 arguments, and I'm not sure they will hear it in the
5 arguments because maybe this is not appropriate for this
6 kind of a ca
se, but you have heard inference in the
7 arguments of the defense counsel in this case to the fact
8 that certain investigative techniques were used by the
9 government. There is no legal requirement, however, that
10 the government proved its case through any particular
11 means. While you are to carefully consider the evidence
12 adduced by the government, you are not to speculate as to
13 why they used the techniques they did or why they did not
14 use other techniques. Law enforcement techniques are not
15 your concern. Your concern is to determine whether or not
16 on the evidence or lack of evidence a defendant's quilt
17 has been proved beyond a reasonable doubt.
18 MR. WHITE: Yes, Your Honor, we would like you to
19 give a charge like that. My recollection is that
20 Mr. Trabulus was suggesting there were better ways the
21 government could have done these calls, to t
est the
22 company's refund policy.
23 Mr. Dunn argued that the government didn't get a
24 written statement from his clients, so, yeah, I think it
25 is an appropriate charge.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8595
1 MR. TRABULUS: Your Honor, the question -- my
2 argument was not that they shouldn't have made -- that
3 they should have done other than the investigative
4 technique which was making the call but the calls itself,
5 what the informant said on the calls may have been skewed
6 what was asked. This isn't a case why I would be saying
7 why didn't they dust the gun for fingerprints.
8 MR. WHITE: Mr. Trabulus said, for example, they
9 could have purchased a membership and then asked for a
10 refund to check the company's refund policy, things like
11 that. I think it's an appropriate thing. Also, I'm sure
12 t
here will be an issue whether it is explicit or not,
13 whether or not the government should have used informants
14 to get jobs at Who's Who. That clearly will be an issue.
15 THE COURT: I'll charge it.
16 Now, I'm going to give you a charge in a minute
17 on the defendant. How do you want me to put this as far
18 as the defendants who did not testify? Do you want me to
19 name the defendants who didn't testify or just say only
20 one of the defendants testified?
21 MR. JENKS: That would be fine.
22 THE COURT: Here's what I'll say. Only one of
23 the defendants testified. As to the other defendants who
24 did not testify, I instruct you as follows.
25 Under the constitution of the United States, they
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8596
1 have no obligation to testify or to present any other
2 evidence because it is the pros
ecution's burden to prove
3 the defendant's guilt beyond a reasonable doubt. That
4 burden remains with the prosecution throughout the entire
5 trial and never shifts to a defendant.
6 A defendant is never required to prove that he or
7 she is innocent.
8 Furthermore, you may not attach any significance
9 to the fact that the defendants did not testify. No
10 adverse inference against them may be drawn by you because
11 they did not take the witness stand. You may not consider
12 this against the defendants in any way in your
13 deliberations in the jury room.
14 Now, if you wait a minute I'll give the charge as
15 to Mr. Reffsin.
16 (Pause in proceedings.)
17 THE COURT: As I advised you none of the
18 defendants are obligated to call any witnesses on their
19 behalf. None of the defendants are obligated to testify
20 on their own behalf, but of cour
se are permitted to do
21 so. In this case the defendant Martin Reffsin has
22 testified. The defendant Martin Reffsin has a personal
23 interest in this case as a result of his prosecution. In
24 appraising his credibility, you may take that fact into
25 consideration. However, I want to say this with equal
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8597
1 force to you. It by no means follows that simply because
2 a person has an interest in the end result that he's not
3 capable of telling a truthful and straightforward story.
4 You should not disregard or disbelieve his testimony
5 simply because he's charged as a defendant in this case.
6 It is for you to decide to what extent, if at all, the
7 defendant's interest has influenced his testimony.
8 The government witnesses.
9 During this trial you have heard the testimony of
10 Intern
al Revenue Service officers, now I may not get all
11 of this right so you'll tell me, Internal Revenue Service
12 Officer Robbie Peters and Frank Gagliardi, Andrew
13 Rosenblatt, IRS Special Agent, and --
14 MR. WHITE: Mr. Rosenblatt was an IRS Revenue
15 Agent. Your Honor said the first two are revenue
16 officers.
17 THE COURT: Revenue service officers or just
18 revenue officers?
19 MR. WHITE: Revenue officers.
20 THE COURT: And then we have the Postal --
21 MR. WHITE: Special Agent Jordan.
22 THE COURT: Of the United States Postal Service.
23 MR. WHITE: No, he's IRS.
24 THE COURT: Oh, I'm sorry. Of the Internal
25 Revenue Service.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8598
1 MR. WHITE: We've had no postal inspectors
2 testify.
3 THE COURT: That's right.
4 Because a witness is a government em
ployee does
5 not mean that his testimony is entitled to any greater
6 weight by reason of that fact. By the same token his
7 testimony is not entitled to less consideration because he
8 is a government employee. You should consider the
9 testimony of the government employee witnesses just as you
10 would any other testimony in the case, and evaluate their
11 credibility just as you would that of any other witness.
12 After reviewing all the evidence you will decide
13 whether to accept the testimony of the government
14 employees and what weight, if any, that testimony
15 deserves.
16 Now, we had an expert witness, right?
17 MR. WHITE: We actually had two.
18 THE COURT: Who are the two witnesses?
19 MR. WHITE: Jeanne Dietrich, who is in the IRS
20 lab. I think her title was forensic scientist; and
21 Mr. Rosenblatt testified as an expert in federal tax
22 matters.
23 THE COURT: Who is the first one?
24 MR. WHITE: Jeanne Dietrich. I know it was a
25 month or two ago now.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8599
1 THE COURT: She testified before the other
2 gentleman?
3 MR. WHITE: Yes. She testified, I think it was
4 maybe the second week of the trial, like around January
5 20th, maybe. I think that week.
6 THE COURT: Yes, I see. J-E-A-N-N-E, correct?
7 MR. WHITE: Correct.
8 THE COURT: D-E-I-T-R-I-C-H.
9 MR. WHITE: Yes.
10 THE COURT: And she was a forensic examination
11 expert, right?
12 MS. SCOTT: I need to double-check. I'm not
13 absolutely sure.
14 MR. WHITE: What her precise title was, I'll have
15 to look at the transcript.
16 THE COURT: I have here she is a physical
17 scientist, forensic scientist and I pointed to expert i
n
18 forensic examination techniques.
19 MR. WHITE: Yes, I think that is correct.
20 THE COURT: An expert in forensic -- what did she
21 testify to?
22 MR. WHITE: She testified about two things. One
23 were indentations on certain documents, and one was the
24 dating of the ink on those documents.
25 THE COURT: All right.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8600
1 You have heard testimony from Jeanne Dietrich, an
2 expert in forensic examination techniques, and Andrew
3 Rosenblatt, an Internal Revenue Service expert on federal
4 tax matters --
5 MR. WHITE: I believe that's how he defined it.
6 THE COURT: -- Who expressed opinions as to these
7 fields of expertise.
8 An expert is allowed to express her or his
9 opinion on those matters about which she or he has special
10 knowledge and training. Expert t
estimony is presented to
11 you on the theory that someone who is experienced in the
12 field can assist you in understanding the evidence or in
13 reaching an independent decision on the facts.
14 In weighing the expert's testimony, you may
15 consider the expert's qualifications, her or his opinions,
16 her or his reasons for testifying, her or his relationship
17 to the government as well as all of the other
18 considerations that ordinarily apply when you are deciding
19 whether or not to believe a witness' testimony. You may
20 give the expert testimony whatever weight, if any, you
21 find it deserves in light of all the evidence in this case
22 with a --
23 MR. WALLENSTEIN: Judge, I would ask you make
24 that testimony applicable to the government's expert as
25 well. The government made him an expert on taxation on
OWEN M. WICKER, RPR OFFICIAL COURT R
EPORTER 8601
1 their examination. I asked him point blank, you are an
2 expert on taxation, are you not, Mr. Reffsin, and he said
3 yes, and Mr. White proceeded to cross-examine on that
4 subject.
5 THE COURT: I think if you wanted him to be a
6 formal expert in the legal technical sense in the federal
7 court it's your practice to ask me to qualify as an
8 expert.
9 MR. WALLENSTEIN: I didn't. He made him an
10 expert.
11 THE COURT: Who is he?
12 MR. WALLENSTEIN: Mr. White.
13 THE COURT: Mr. White asked me to deem
14 Mr. Reffsin qualified?
15 MR. WALLENSTEIN: No, but he questioned him as an
16 expert with respect to his opinion. He in fact used the
17 word "expert" in his examination of Mr. Reffsin. I think
18 he's entitled to that expert charge as well.
19 THE COURT: Do you have any objection to me
20 including
Mr. Reffsin in that?
21 MR. WHITE: I think I do but --
22 THE COURT: I think it's very detrimental to
23 Mr. Reffsin, frankly.
24 MR. WHITE: Yeah, I'm trying to figure out why he
25 wants it.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8602
1 THE COURT: I don't know why you want it. It
2 says here that you can give it the weight it deserves and
3 all of that.
4 MR. WALLENSTEIN: He said that about him anyway.
5 MR. WHITE: I would like to think about that.
6 MR. WALLENSTEIN: I am not sure I want it anyway.
7 THE COURT: If you want it I'll give it to you.
8 MR. WALLENSTEIN: I'll let you know Monday.
9 THE COURT: Okay.
10 MR. WHITE: Your Honor, when he let's you know, I
11 would like to have an opportunity for rebuttal.
12 THE COURT: Well --
13 MR. WALLENSTEIN: Would it depend which way I
14 go?
15 MR. WHITE: Your Honor, on that expert testimony,
16 I don't know if it really makes a difference.
17 I just want to point out one thing. We qualified
18 Agent Rosenblatt as an expert, but my recollection was
19 that he never actually opined on a particular thing. Your
20 Honor's ruling was that he as an expert could list the
21 factors that the IRS considered in determining whether
22 something was income or not and then he explained the
23 government's analysis of what was income and you
24 instructed the jury this is just the government's
25 contention. I don't know if it is a distinction without a
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8603
1 difference, but he never actually said as an expert my
2 opinion is this is income.
3 THE COURT: I don't think he has to say that
4 cataclysm of that kind.
5 MR. WHITE: I want to make tha
t clear to the
6 extent that raised an issue.
7 THE COURT: The only thing is that you muddled
8 it.
9 MR. WHITE: Then I'm sorry.
10 THE COURT: I think he was an expert and I'm
11 charging that he's an expert. And if Mr. Reffsin will be
12 an expert on Monday morning, what kind of expert would he
13 be?
14 MR. WALLENSTEIN: Well, he is going to be an
15 expert. The question is whether you will tell the jury
16 whether he is.
17 THE COURT: There's no doubt. He's a Certified
18 Public Accountant.
19 MR. WALLENSTEIN: That's my point. I'm not
20 sure. I would have to think about it over the weekend.
21 THE COURT: Okay.
22 Now, this is on the witnesses that took guilty
23 pleas, the government witnesses.
24 You have heard testimony from government
25 witnesses who pled guilty to a crime arising out of
OWEN M. WICKER, RPR
OFFICIAL COURT REPORTER 8604
1 another charge. You are instructed that you are to draw
2 no conclusions or inferences of any kind about the guilt
3 of the defendants on trial from the fact that a
4 prosecution witness pled guilty to another charge. The
5 decision of that witness to plead guilty was a personal
6 decision about his or her own guilt. It may not be used
7 by you in any way as evidence against the defendants here
8 on trial.
9 Immunity.
10 You have heard the testimony of witnesses -- I
11 think there was more than one, wasn't there?
12 MR. WHITE: There was at least two.
13 THE COURT: You have heard the testimony of
14 witnesses who have testified under a grant of immunity.
15 What this means is that the testimony of the witness may
16 not be used against him or her -- is it him or her?
17 MR. WHITE: Yes, there's both men and
women.
18 THE COURT: -- Against him and her in any
19 criminal case except a prosecution for perjury, giving a
20 false statement or otherwise failing to comply with the
21 conditions of immunity.
22 You are instructed that the government is
23 entitled to call as a witness a person who has been
24 granted immunity and that you may convict a defendant on
25 the basis of such a witness' testimony alone if you find
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8605
1 that the testimony proves the defendant guilty beyond a
2 reasonable doubt.
3 However, the testimony of a witness who has been
4 granted immunity should be examined by you with greater
5 care than the testimony of an ordinary witness. You
6 should scrutinize it closely to determine whether or not
7 it is influenced in such a way as to place guilt upon a
8 defendant in o
rder to further the defendants' own
9 interests. For such a witness --
10 MR. SCHOER: For the witness' own interest,
11 Judge.
12 THE COURT: Did I say something else?
13 MR. SCHOER: You said defendants.
14 THE COURT: It says witnesses. Let me say that
15 again now.
16 You should scrutinize it closely to determine
17 whether or not it is influenced in such a way as to place
18 a guilt upon a defendant in order to further the witness'
19 own interests. For such a witness confronted with the
20 realization that he or she can win his or her own freedom
21 by helping to convict another has a motive to falsify his
22 or her testimony. Such testimony should be scrutinized by
23 you with great care and you should act upon it with
24 caution. If you believe it to be true and accept the
25 testimony, you may give it such weight as you believe it
OWEN
M. WICKER, RPR OFFICIAL COURT REPORTER 8606
1 deserves.
2 Accomplices.
3 You have heard witnesses who testified that they
4 were actually involved in planning and carrying out the
5 crimes charged in the indictment. There have been a great
6 deal said about these so-called accomplice witnesses in
7 the closing argument of counsel as to whether or not you
8 should believe them.
9 The government argues as it is permitted to do
10 that it must take the witnesses as it finds them. It
11 argues that only people who themselves take part in
12 criminal activity have the knowledge required to show
13 criminal behavior by others. For these very reasons the
14 law allows the use of accomplice testimony. Indeed, it is
15 the law in federal courts that the testimony of an
16 accomplice may be enough in itself for conviction if the
17 jury finds that
the testimony establishes guilt beyond a
18 reasonable doubt.
19 However, it is also the case that accomplice
20 testimony is of such a nature that it must be scrutinized
21 with great care and viewed with particular caution when
22 you decide how much of that testimony to believe, if any.
23 As I stated you should consider the testimony of
24 accomplice witnesses with greater care then the testimony
25 of other witnesses. They may or may not have reason to
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8607
1 distort or exaggerate what others did because they wanted
2 to strike a good bargain with the government in their own
3 case.
4 In deciding whether you believe such testimony,
5 you should keep these comments in mind.
6 The testimony of an accomplice witness should be
7 examined by you with greater care than the testimony of an
8 ordinary witness. You should scrutinize it closely to
9 determine whether or not it is influenced in such a way as
10 to place guilt upon a defendant in order to further the
11 witness' own interests.
12 I have given you some general considerations with
13 regard to determining witness credibility and I will not
14 repeat them all here. Nor will I repeat all the arguments
15 made by both sides, by all sides, rather, on this issue.
16 However, let me say a few things that you may
17 want to consider during your deliberations on the subject
18 of the accomplice witnesses.
19 You should ask yourselves whether these so-called
20 accomplices would benefit more by lying or by telling the
21 truth? Was their testimony made up in any way because
22 they believed or hoped they would somehow receive
23 favorable treatment by testifying falsely? Or did they
24 believe that
their interests would be best served by
25 testifying truthfully? If you believed that the witness
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8608
1 was motivated by hopes of personal gain, was the
2 motivation one which would cause him to lie or was it one
3 which would cause him to tell the truth? Did this
4 motivation influence his or her testimony?
5 It's him or her, correct?
6 MR. WHITE: If this applies to people both who
7 pled guilty and got immunity, both falling under the
8 heading of accomplice, then the answer is yes.
9 THE COURT: Yes.
10 In sum, you should look at all the evidence in
11 deciding what credence and what weight, if any, you would
12 want to give to the accomplice witnesses.
13 Now, that completes what my first go round was on
14 the boilerplate charge.
15 Now, is there any exceptions, requests or
16 anything else? I have requests to charge from four
17 defendants.
18 MR. TRABULUS: Yes.
19 THE COURT: Is there anything in the request to
20 charge on the boilerplate portions you want me to look
21 at?
22 MR. TRABULUS: Your Honor, something --
23 THE COURT: Excuse me, I'll review all of this
24 over the weekend, so if I left anything out that I think
25 should be put in from the boilerplate I will have it for
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8609
1 you on Monday. I read them but I didn't go through it
2 carefully.
3 MR. TRABULUS: Your Honor, on the accomplice
4 charge you just gave, something occurs to me and I would
5 just ask that you utilize the phrase "so-called
6 accomplices" which you used in the later portion in the
7 earlier portion too because using the term accomplice
8 suggests that a crim
e was committed and in many cases the
9 issue, of course, was whether somebody else was involved
10 in the crime.
11 Here the main issue from Mr. Gordon's point of
12 view of what happened was it happened --
13 THE COURT: You want me to add "so-called"?
14 MR. TRABULUS: Yes, towards the beginning.
15 THE COURT: I put it towards the beginning.
16 MR. TRABULUS: Maybe I missed it.
17 THE COURT: There has been a great deal heard
18 about these so-called accomplice witnesses.
19 MR. TRABULUS: I thought you said earlier on when
20 you heard the testimony of the accomplices, whether you
21 said so-called. Maybe I misheard you, Your Honor.
22 THE COURT: I'll look into it.
23 MR. WHITE: Also, at the beginning I think you
24 mentioned something to the effect that you've heard
25 witnesses who have testified they were involved in
OWEN M. WICKER, RPR O
FFICIAL COURT REPORTER 8610
1 planning and carrying out the criminal activity. I think
2 the testimony is that there's not -- I don't think there
3 was any evidence of witnesses planning, just carrying
4 out. There is Ms. Saffer and I think Ms. Gaspar. I don't
5 think it applies to any other witness.
6 THE COURT: Okay.
7 MR. SCHOER: Judge, also, I think I was a little
8 confused when you were reading. When you read the part
9 about those people with cooperation agreements, you
10 indicated that the fact that an alleged, a person with a
11 cooperation agreement pled guilty shouldn't have anything
12 to do with the defendants. Most of the people with
13 cooperation agreements that have testified in this case
14 didn't have anything to do with this particular -- with
15 any of the charges in this case.
16 I believe the only witness with a cooperation
17 agreement that had to do with the charges in this case was
18 Mr. Saffer; is that correct?
19 MR. WHITE: That's correct.
20 MR. SCHOER: So I would --
21 THE COURT: But I say on other charges. I say it
22 several times.
23 MR. SCHOER: Well, then, all I'm asking is when
24 you charged the accomplice part of the credibility charge
25 that you're doing, that you refer to that as well.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8611
1 THE COURT: Refer to what?
2 MR. SCHOER: The fact that a so-called accomplice
3 has pled guilty to an offense that is charged in the
4 indictment is not evidence of guilt on the part of any of
5 the defendants.
6 THE COURT: You want me to have another paragraph
7 with respect to accomplices pleading guilty?
8 MR. SCHOER: Yes.
9 THE COURT: Okay.
10 MR. WALLENSTEIN: Your Hon
or, I submitted a
11 request to charge --
12 THE COURT: Just one minute now.
13 MR. WALLENSTEIN: I'm sorry.
14 THE COURT: Yes, Mr. Wallenstein.
15 MR. WALLENSTEIN: Your Honor, I submitted a
16 request to charge with respect to character evidence. I
17 don't know whether you would consider that part of your
18 charge or not.
19 THE COURT: Let me see it. You just handed it up
20 to me.
21 MR. WALLENSTEIN: I did, of course, call a
22 character witness.
23 THE COURT: Pardon?
24 MR. WALLENSTEIN: I did, of course, call a
25 character witness.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8612
1 THE COURT: Okay, let's take a look.
2 I'm going to have to take a look at this as
3 against the weight, general charge on character evidence.
4 MR. WALLENSTEIN: That's fine.
5 THE COURT: And I will definitely a
dd a section.
6 MR. WALLENSTEIN: I assumed it belonged in the
7 boilerplate.
8 THE COURT: Yes, it does.
9 MR. WALLENSTEIN: I also submitted a request with
10 respect to aiding and abetting but I don't know if that is
11 in your boilerplate or elsewhere.
12 THE COURT: That's elsewhere.
13 Anything else in the boilerplate portion?
14 MR. SCHOER: Judge, we're a little unclear as a
15 whole as to whether or not there was a charge with respect
16 to inconsistent statements.
17 THE COURT: Two of them.
18 MR. SCHOER: Okay.
19 THE COURT: I think.
20 All right. Now, let's get into the meat.
21 I will now turn to the second part of this charge
22 and I will, as I indicated at the outset, instruct you as
23 to the specific elements of the crimes charged that the
24 government must prove beyond a reasonable doubt to warrant
25 a finding of guil
t in this case.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8613
1 During the course of this charge I am going to
2 read all the counts in the indictment. As I advised you
3 previously, the charges against the defendants in this
4 case are contained in the indictment. The indictment is
5 simply the means by which the government gives the
6 defendants notice of the charges against them.
7 The indictment contains accusations and nothing
8 more. The indictment is not evidence and you are to give
9 it no weight in arriving at your verdict. Keep this
10 firmly in mind.
11 The indictment uses the word "count." Counsel
12 may have used that word in their statements. I will use
13 it in my instructions to you today.
14 The word "count" in a criminal indictment means a
15 charge or an accusation. A count in an indictment is in
16 effect
an accusation that a defendant has violated the law
17 in a particular way.
18 Each defendant is on trial only for those counts
19 with which he or she is charged. The defendants are on
20 trial only for those counts with which each is charged.
21 You are to return a verdict only on the charges contained
22 in the indictment.
23 While we are on the subject of the elements, I
24 should draw your attention to the fact that it does not
25 matter if the indictment charges that a specific act
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8614
1 occurred on or about a certain date and the evidence
2 indicates that in fact it was on another date, if in fact
3 the evidence does so indicate. It is sufficient if the
4 evidence establishes beyond a reasonable doubt that an
5 offense was committed on a date reasonably near the date
6 alleged.
7 Corporate responsibility.
8 Two of the defendants in this case are
9 corporations. A corporation is a person and may be found
10 guilty of a criminal offense. Of course a corporation can
11 only act through its agents, that is, its directors,
12 officers and employees or other persons authorized to act
13 for it.
14 A corporation is legally responsible for those
15 acts or omissions of his agents made or performed in the
16 course of their employment.
17 Thus, before you may find the corporate
18 defendants guilty, you must find that the government has
19 proven beyond a reasonable doubt that all of the elements
20 of the offense, as I explained them to you, have been met
21 with respect to the corporations in the form of acts or
22 omissions of their agents which were performed within the
23 scope of their employment.
24 To be acting within the scope of o
ne's employment
25 may be shown in several ways.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8615
1 First, if the act or omission was specifically
2 authorized by the corporation it would be within the scope
3 of the agent's employment.
4 Second, even if the act or omission was not
5 specifically authorized, it may still be within the scope
6 of an agent's employment if both of the following have
7 been proven.
8 One, that the agent intended that his act would
9 produce some benefit to the corporation.
10 Well, I guess that should be his or her act.
11 Two, that the agent was acting within his or her
12 authority.
13 An act is within an agent's authority if it was
14 directly related to the performance of the kind of duties
15 that the agent had the general authority to perform. So
16 in order to be acting within the sc
ope of his or her
17 employment or authority, an agent or employee must be
18 acting on behalf of the corporation with the purpose of
19 benefiting the corporation or serving some corporate
20 purpose.
21 If you find that the agent or employee was acting
22 within the scope of his or her employment, the fact that
23 the agent's act was illegal contrary to his employer's
24 instructions or against the corporation's policies, will
25 not relieve the corporation of responsibility for such
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8616
1 acts.
2 A corporation may be responsible for acts of its
3 agents or employees if they performed within the scope of
4 their employment or authority, even though the agent's or
5 employee's conduct may be contrary to the corporation's
6 actual instructions or contrary to the corporation's
7 stated
policies.
8 However, you may consider the fact that the agent
9 or employee disobeyed the instructions or violated company
10 policy in determining whether the agent intended to
11 benefit the corporation or was acting within this
12 authority.
13 Finally, if you find that the agent or employee
14 was not acting within the scope of his or her authority at
15 the time, you should then consider whether the corporation
16 later approved the act.
17 An act is approved after it is performed when
18 another agent or employee of the corporation having full
19 knowledge of the act and acting within the scope of his or
20 her employment, as I have just explained it to you,
21 approved the act by his or her words or conduct.
22 A corporation is responsible for any act or
23 omission approved by its agents or employees in this
24 manner.
25 A corporation is en
titled to the same fair trial
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8617
1 as a private individual. It is entitled to the same
2 presumption of innocence as a private individual. And it
3 may be found guilty only if the evidence establishes its
4 guilt beyond a reasonable doubt. All persons, including
5 corporations, stand equal before the law.
6 Count 1, conspiracy to defraud.
7 Count 1 of the indictment charges the defendants
8 Bruce Gordon, Who's Who Worldwide, Sterling Who's Who,
9 Tara Garboski, Oral Frank Osman, Laura Weitz, Annette
10 Haley, Scott Michaelson and Steve Rubin with conspiracy to
11 violate federal law. They are charged with conspiring to
12 defraud and obtain money from potential customers of Who's
13 Who Worldwide and Sterling Who's Who by means of false and
14 fraudulent representations in order to obtain members for
15 the Who's Who and Sterling Who's Who directories and using
16 the mails for the purpose of executing this scheme to
17 defraud.
18 I will now read Count 1 of the indictment. And I
19 would read it.
20 The relevant statute on this subject, namely
21 conspiracy, is 18 United States Code Section 371. It
22 provides as follows:
23 "If two or more persons conspire either to
24 commit any offense against the United States or to defraud
25 the United States or any agent thereof in any manner or
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8618
1 for any purpose and one or more of such persons do any act
2 to affect the object of the conspiracy, each is guilty of
3 an offense against the United States."
4 A conspiracy is a kind of criminal partnership.
5 A combination or agreement of two or more persons to join
6 together to
accomplish some unlawful purpose.
7 The crime of conspiracy to violate a federal law
8 in this case to defraud subscribers to Who's Who
9 directories by use of the mail is an offense separate and
10 distinct from the commission of any offense that may have
11 been committed pursuant to the conspiracy. That is
12 because the formation of a conspiracy or a partnership for
13 criminal purposes is in and of itself a crime.
14 It is separate and distinct from the actual
15 violation of any specific federal laws such as mail fraud
16 which latter crime the law refers to as a substantive
17 crime.
18 Indeed, you may find a defendant guilty of the
19 crime of conspiracy even though the substantive crime
20 which was the object of the conspiracy was not actually
21 committed. The essence of the crime of conspiracy is an
22 agreement or understanding between two or more persons
23 that they will act together to accomplish a common
24 objective that they know is unlawful. So that a
25 conspiracy even if it should fail of its purpose is
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8619
1 nevertheless a crime and, therefore, it is not necessary
2 for the government to prove the commission of any
3 substantive or actual offense for you to find a defendant
4 guilty of conspiracy.
5 Of course I want to give Mr. White -- I'm sorry,
6 Ms. Scott.
7 MR. WHITE: I do something too, Your Honor.
8 MS. SCOTT: Mr. White --
9 THE COURT: You and Mr. Schoer, right?
10 Mr. Trabulus knows all the law already.
11 MR. JENKS: So does Mr. Schoer, Your Honor.
12 MR. SCHOER: No. No.
13 THE COURT: So that a conspiracy -- withdrawn.
14 The essence of the charge of conspiracy is an
15 understanding between two or
more persons that they will
16 act together to accomplish a common objective that they
17 know is unlawful.
18 In order to satisfy its burden of proof to this
19 count charging a conspiracy to violate the law, the
20 government must establish each of the following four
21 elements beyond a reasonable doubt.
22 First, that two or more persons knowingly and
23 willfully entered into the unlawful agreement charged in
24 Count 1 of the indictment.
25 Second, that the defendant you are considering
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8620
1 knowingly and willfully became a member of the
2 conspiracy.
3 Third, that one of the members of the conspiracy,
4 not necessarily the defendant you are considering,
5 knowingly committed at least one of the overt acts charged
6 in the indictment.
7 And fourth, that the overt or ov
ert acts which
8 you have found to be committed was or were knowingly
9 committed to further some objective of the conspiracy.
10 Now I will discuss each of these elements.
11 First, unlawful agreement.
12 The first element that the government must prove
13 beyond a reasonable doubt to establish the offense of
14 conspiracy is that two or more persons entered into the
15 unlawful agreement charged in the indictment. As I stated
16 before, the unlawful agreement charged by the government
17 in Count 1 is a conspiracy to defraud potential
18 subscribers to the Who's Who directories by false and
19 fraudulent representations.
20 In order for the government to satisfy this
21 element you need not find that the alleged members of the
22 conspiracy met together, sat around a table and entered
23 into an express or formal agreement to commit the scheme
24 to defraud
or to make the false statements as alleged in
25 the indictment.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8621
1 Similarly, you need not find that the alleged
2 conspirators stated in words or writing what their scheme
3 or unlawful agreement was or its object or purpose or
4 every precise detail of the scheme or the means by which
5 its object or purpose was to be accomplished.
6 What the government must prove is that there was
7 a mutual understanding either spoken or unspoken between
8 the defendant you are considering and others to cooperate
9 with each other, to establish the unlawful acts by means
10 of a joint plan or common design, the existence of an
11 agreement to violate the law as charged in this count of
12 the indictment may be established by direct evidence or by
13 circumstantial evidence. In this regard you may infer its
14 existence from the circumstances in the case and the
15 conduct of the parties involved.
16 You may, in determining whether an agreement
17 existed here, consider the actions and statements of all
18 of those you find to be participants as proof that a
19 common design or plan existed on the part of the persons
20 charged to act together for the accomplishment of an
21 unlawful purpose.
22 If upon all the evidence, direct and
23 circumstantial, the government proved beyond a reasonable
24 doubt that the minds of at least two of the alleged
25 conspirators, one of whom being the defendant you are
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8622
1 considering, met in an understanding way and they agreed
2 to work together to accomplish the object of the charged
3 conspiracy, then the first element, the existence of the
4 conspirac
y has been established.
5 I think maybe we better -- well, let me get the
6 second element in.
7 MR. WHITE: Your Honor, you want comments as we
8 go along?
9 THE COURT: Sure, let's have comments. Let's
10 have comments on each element.
11 MR. WHITE: Your Honor I think left out or
12 omitted, I guess purposefully, the sentences that I think
13 are in most charges on this subject which is "since a
14 conspiracy --"
15 THE COURT: Is this in your request to charge?
16 MR. WHITE: Yes.
17 THE COURT: Where is it on?
18 MR. WHITE: Page 9 of the government's, the last
19 sentence on page 9, "but since a conspiracy is by its very
20 nature characterized by secrecy, direct proof may not be
21 available."
22 THE COURT: Where is this?
23 MR. WHITE: Bottom of page 9 and onto page 10.
24 THE COURT: I'll put that in.
25 MR. WHITE: And also
--
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8623
1 THE COURT: Wait a minute now. Just wait one
2 minute.
3 MR. DUNN: Yes, I would object. It seems to me
4 based on all the evidence and also the tape-recordings and
5 things like that there is nothing secret going on here.
6 Whatever it is, whatever it is, seems to be out in the
7 open, I would submit to the Court and, therefore, I would
8 request that that sentence not be included.
9 MR. TRABULUS: I join in that objection, Your
10 Honor. That's not the language that -- I was going to say
11 that type of language may be suited to a drug conspiracy
12 or something of that sort but this is completely out in
13 the open.
14 MR. WHITE: I'm sure the defendants will argue,
15 you heard all the tapes, you don't hear anyone saying I
16 want you to go lie on the phone on tape. I think
that's
17 an argument they can make. The government can make an
18 argument you don't stand up in the middle of a business
19 like this and say I want you to lie on the phone. I mean,
20 in addition, I think they go hand in hand, the other
21 sentence that we included on page 10.
22 THE COURT: Just one minute now. One at a time.
23 Yes.
24 MR. WHITE: I think it goes hand in hand, the
25 second full sentence on page 10, which I think is
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8624
1 typically in conspiracy instructions which is "in a very
2 real sense then in the context of conspiracy cases actions
3 often speak louder than words."
4 Here since the whole theory is obviously that the
5 defendants are acting in concert, that it was a tacit
6 understanding rather than a formal agreement, that that is
7 appropriate.
8 MR
. DUNN: Your Honor, in reference to the
9 secrecy issue, they had cooperators that went in obviously
10 with body wires and testified, and I don't recall any
11 testimony from those cooperators concerning the secrets of
12 any meetings or in reference to lying on the phone as just
13 has been stated by Mr. White.
14 MR. WHITE: My point was that there is not that.
15 There's not that, so that you can assume that it was more
16 of a tacit understanding and an informal agreement to do
17 that. As I said, actions speak louder than words. You'll
18 not say, Mr. Gordon will not stand in the middle of the
19 business and say this is a big fraud, I want everyone to
20 lie on the phone.
21 MR. LEE: Judge, I want to remind you there is
22 evidence of open meetings with people not charged or even
23 implicated in these charges, open meetings discussing
24 intra-Who's Who Worldwi
de policy. I think that is totally
25 inconsistent with this type of a charge.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8625
1 MR. TRABULUS: You know, Your Honor, the
2 informants went in there and had an opportunity to
3 tape-record whatever they could and all they were able to
4 tape-record in terms of what people should say on the
5 phone were instructions that they should not lie, they
6 would be fired.
7 And with respect to actions speaking louder than
8 words, this is an alleged conspiracy which by its nature
9 was to be accomplished only through words to members or
10 prospective members. To say that the actions speak louder
11 than words I think is inappropriate and could cause the
12 jury to focus on something other than what the members
13 were told.
14 MR. WHITE: But that's not what that refers to.
15 Actions speak
louder than words meaning if they are acting
16 in concert rather than expressly formally agreeing to a
17 conspiracy. Even in the first sentence, the secretive
18 part isn't applicable, certainly the actions speak louder
19 than words.
20 THE COURT: I'll take another look at it, but I
21 intentionally left it out because I didn't think it fit in
22 this case. In fact, you quoted from a charge in which I
23 did add it.
24 MR. WHITE: Right.
25 THE COURT: In that case, that's entirely
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8626
1 different in that there were really only two people in the
2 conspiracy. The rest of the people were kept in secret,
3 kept in the dark. They didn't know about it. Supposedly
4 they didn't know about it.
5 MR. WHITE: Well, I guess what I would say, Your
6 Honor. If Your Honor finds that the first se
ntence we
7 asked for, the one about secretive, secrecy, rather,
8 doesn't go in, I certainly think the second one about
9 actions speaking louder than words does.
10 Here everyone agrees there is no formal agreement
11 and you have to presume or if you are going to infer the
12 existence of a conspiracy you have to infer it from a
13 concert of actions.
14 THE COURT: I'll take a look at it.
15 MR. GEDULDIG: Judge, on that point, the
16 government's own witnesses, Mr. Saffer, the one that I can
17 recall testified that they were instructed specifically
18 not to lie on the phones and that the government now is
19 seeking to create an impression through the charge which
20 is contrary to their proof. They want to have their cake
21 and eat it too. They want to put in a case in which their
22 own witnesses say they were instructed not to lie and then
23 get up
in summation and say you're not going to hear that
24 they were told to lie because this is a secret little
25 understanding that was tacitly had by the defendants in
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8627
1 the case. Their argument will be contrary to their
2 proof. I think that's misleading and confusing.
3 MR. WHITE: Then Mr. Geduldig will point that
4 out.
5 MR. GEDULDIG: I will not be able to do that
6 because you will get up last.
7 THE COURT: I will think about it.
8 MR. SCHOER: Judge, can you read the first part
9 of that charge in which you define the agreement because I
10 think that you left out the mail part of the agreement.
11 THE COURT: You mean the elements?
12 MR. SCHOER: No, in the unlawful agreement, the
13 beginning of the unlawful agreement element, you again
14 state --
15 THE COURT: I se
e.
16 MR. SCHOER: -- Is the conspiracy to defraud.
17 THE COURT: What I said was as I stated before,
18 the unlawful agreement charge by the government in Count 1
19 is a conspiracy to defraud potential subscribers to the
20 Who's Who directories by false and fraudulent
21 representations.
22 MR. SCHOER: And when you did the introductory
23 part where you laid out all the elements, the conspiracy
24 was to find it differently, you specifically said the use
25 of the mails. I think that's part of what is alleged to
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8628
1 be the conspiracy here.
2 So I would ask you to use the same language that
3 you used when you define the elements in the first part of
4 that charge in the unlawful agreement when you repeated.
5 THE COURT: By use of the mail.
6 MR. SCHOER: By use of the mail.
7 THE COURT: Okay.
8 All right. We'll recess now until 9 a.m. sharp
9 on Monday.
10 MR. NELSON: Your Honor --
11 THE COURT: And be prepared to stay late.
12 Anything else?
13 MR. NELSON: Your Honor, before we recess for the
14 weekend I'm wondering if we might be able to address the
15 length of the summations so all of us will be preparing
16 for the summations.
17 THE COURT: Good thinking, yes.
18 Let's discuss the length of the summations. Just
19 one minute now.
20 I'm also preparing a verdict sheet which will --
21 which I will give you on Monday and which will -- well, it
22 will list all the defendants in each particular count and
23 of course in some of them it will -- not all the
24 defendants named in the indictment will be in these mail
25 fraud counts, but it will list them in seriatim, one after
OWEN M. WICKER, RPR O
FFICIAL COURT REPORTER 8629
1 the other, not guilty, guilty, name, not guilty, guilty,
2 name, not guilty, guilty. I will have it for you on
3 Monday.
4 Now, length of time.
5 The government's initial summation.
6 MR. WHITE: Are you asking for an estimate, Your
7 Honor?
8 THE COURT: I'm asking for a time. How much time
9 do you want?
10 MR. WHITE: Could I ask first is the way we're
11 going to do that that any time not used on the original
12 summation can apply to the rebuttal?
13 THE COURT: No.
14 MR. WHITE: It will not be that way?
15 THE COURT: No.
16 MR. WHITE: Okay.
17 THE COURT: I'm going to give you a time element
18 ten minutes or so. Before that element I will remind you
19 that you are to conclude the summation because you are
20 close -- that you will start to conclude the summation,
21 thos
e will be my words, about ten minutes before the end
22 of it.
23 MR. WHITE: Right, I understand.
24 THE COURT: And I will not, of course, cut you
25 off at precisely one hour, if that be the time you are
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8630
1 allotted, but within a few minutes of that.
2 MR. WHITE: I guess, Your Honor, I would ask
3 given the trial has been so long, over two months since
4 the jury has heard some complicated evidence about the tax
5 matters and everything, given the government's burden of
6 proof and the number of defendants that have to be
7 individually discussed and the number of counts, I guess I
8 would ask for perhaps four hours.
9 THE COURT: No way will you get four hours. No
10 way at all.
11 Let me find out what the defendants want.
12 MR. SCHOER: Judge, maybe we ought to address it
13 this way and this is the order we're thinking about doing
14 it so that each defendant -- the ones at the beginning may
15 spend a little more time because they are at the
16 beginning.
17 I believe Mr. Wallenstein will sum up first and
18 then I'm going to sum up. Then Mr. Jenks and then
19 Mr. Nelson and then Mr. Dunn, Mr. Geduldig, Mr. Lee,
20 Mr. Neville and then Mr. Trabulus will sum up.
21 THE COURT: Okay. How much time do you want,
22 Mr. Wallenstein?
23 MR. WALLENSTEIN: In view of what you said to
24 Mr. White I'm loathed to ask.
25 THE COURT: You can count on it.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8631
1 MR. WALLENSTEIN: I think two hours. I think I
2 need a whole lot more.
3 THE COURT: You will not get two hours.
4 Mr. Schoer.
5 MR. SCHOER: Judge, being the first of the
6 defendants on t
he mail fraud, I need an hour and-a-half.
7 THE COURT: Mr. Jenks.
8 MR. JENKS: I'm going to ask for an hour but I'll
9 try to be less.
10 THE COURT: Excuse me for a minute. I have to
11 recover from the shock of these times I heard.
12 The other ten defendant case with four murderers
13 and with 45 kilograms of heroin a week being sold, I gave
14 two hours to the government. That was 17 weeks.
15 MR. WALLENSTEIN: Murderers are easy. You did it
16 or you didn't do it.
17 (Short recess taken.)
18 THE COURT: Mr. Jenks, how much time do you want.
19 MR. JENKS: Since I'm only going to have the
20 weekend to prepare for it, I'm going to ask for an hour.
21 If I had a month to prepare for it it would be even
22 shorter. It may be a half-hour.
23 THE COURT: You have so much time to prepare for
24 this that it is incredible. That's how much time.
25
MR. JENKS: I have to say seriously no more than
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8632
1 an hour. I think I'll do it in 45 minutes.
2 THE COURT: I think you'll do it in 45 minutes.
3 MR. NELSON: I would like an hour and 15 minutes
4 because my client is on so many different recordings that
5 it would take me time to explain those portions of the
6 recordings.
7 THE COURT: Mr. Dunn.
8 MR. DUNN: Your Honor, I would be requesting an
9 hour and 15 minutes but I could probably do it in an hour.
10 THE COURT: Good thing.
11 Mr. Geduldig.
12 MR. GEDULDIG: I'll ask for 15 minutes less than
13 Mr. Dunn. He will be the opening attorney for the
14 salespeople.
15 THE COURT: Okay.
16 Mr. Lee.
17 MR. LEE: Judge in the case of Ms. Weitz, she, I
18 think, has individualized tapes. I was going to ask for
19
an hour and 15 minutes.
20 THE COURT: Mr. Neville.
21 MR. NEVILLE: 20 minutes, half an hour.
22 MR. WALLENSTEIN: Judge, can I have the rest of
23 his time?
24 THE COURT: No.
25 Mr. Trabulus.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8633
1 MR. TRABULUS: Two and-a-half hours, Your Honor.
2 THE COURT: If I granted these requests. Let's
3 see, four hours, six hours.
4 MR. LEE: Judge, I just want to interrupt. I
5 just had a conversation with my clients, the way my
6 summation is, I think it will be an hour. I will not be
7 going into any great detail.
8 THE COURT: If I granted -- by the way, how about
9 rebuttal? I was going to say three days but I guess it
10 will be four days before we get through.
11 What about the rebuttal?
12 MR. WHITE: Your Honor, that sort of depends how
13 much time you give the
defendants.
14 THE COURT: Well, they'll not get as much as you
15 are asking, nor are you.
16 MR. WHITE: Let's see. Your Honor, my rough
17 count is what they've asked for is about 12 hours, so it
18 means that I have to respond to 12 hours of argument or
19 whatever Your Honor reduces that to. I guess I would ask
20 for two in rebuttal.
21 Your Honor, I would ask, and I've done this with
22 other judges, I don't know if Your Honor does it, it seems
23 maybe you don't, that whatever I saved under the maximum
24 in summation we can apply to rebuttal. I think that
25 actually creates an incentive and puts a premium on
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8634
1 brevity, so that is what Your Honor is looking for --
2 THE COURT: No.
3 MR. WHITE: Okay.
4 THE COURT: You keep the time and do all you want
5 and talk, al
l of you, talk until you really put the jury
6 to sleep or out in the courthouse somewhere by repetitive
7 speaking. My goodness, most of the defendants will be
8 repetitive.
9 This case isn't a real complex case even though
10 it has been drawn out for nine, whatever the weeks are.
11 It's a very simple mail fraud case. The perjury counts
12 don't take a lot of talk, the alleged perjury. The
13 alleged obstruction of justice don't take a lot of time.
14 The tax evasion, my goodness, the tax liability is three
15 and-a-half million, it's conceded and you say that it is
16 conceded by saying that it had it in the logs. It is not
17 a very complex case even though there has been all of
18 these witnesses.
19 This jury is very attentive, they are very
20 intelligent. We may lose one, by the way, and that's what
21 I want to raise with you. Juror 1 has a wedding on Friday
22 and has asked, has told my courtroom deputy, he apparently
23 says, I'm not sure, let me call her in and see what he
24 said.
25 Madam Courtroom Deputy, what did Juror 1 tell you
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8635
1 in exact words as you can remember?
2 THE CLERK: That he has a wedding to attend on
3 Friday, March 27th. And I said, it's on Friday? And he
4 said, yes, it's on Friday. I said, all right, when it
5 gets closer to that time just remind me and I'll speak to
6 the Judge. He only just today at 3 o'clock mentioned it
7 again and I told him we would get back to him on Tuesday.
8 THE COURT: Did he say he wanted to be excused
9 from serving on the jury?
10 THE CLERK: No. I'm not sure he knows what he
11 wants when he asked me a month ago.
12 THE COURT: Here's the scoop. At this point in
13 the tri
al I can discharge him with the consent of
14 everybody or I can decline to discharge him and keep him
15 on. That is not a real viable excuse after sitting in the
16 case after this length of time. But if he is a member of
17 the wedding party -- did he say that?
18 THE CLERK: No, he didn't.
19 THE COURT: If he's a member of the wedding
20 party, that's even a little better excuse, but it's not a
21 major excuse, not with me. I mean, sometimes I would
22 rather give up going to some weddings, frankly, but maybe
23 it is his brother who is getting married, maybe he's
24 getting married.
25 THE CLERK: He said it was his best friend.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8636
1 THE COURT: I can understand him wanting to be
2 there. So you better think about what we'll do with him.
3 Unless I get a consent from everybody, I tell you n
ow I'm
4 not excusing him. I'll make him sit in this case.
5 MR. GEDULDIG: If it's a Friday wedding I would
6 think it is an evening wedding.
7 THE COURT: Who knows what goes on today. In my
8 day it was in the evening, today it is at 4 o'clock in the
9 morning when they get up.
10 MR. GEDULDIG: What kind of work schedule do you
11 anticipate?
12 THE COURT: Don't you know people first go out at
13 11, 12 o'clock at night.
14 MR. GEDULDIG: I don't know, I'm sleeping.
15 THE COURT: I recall I met a young lady when I
16 was very young and her father said Mr. Spatt, I want you
17 to get my daughter home by 12 o'clock. I said, sir, I
18 have to be home by 11. But that's a thing of the past.
19 But I like the fact they will put uniforms on the school
20 kids, that I like. We're returning to normal, somewhat.
21 However, that has nothing to do with whether
we'll excuse
22 this man from the jury.
23 MR. JENKS: Judge, what time Friday night will
24 you normally sit if they are going to be deliberating on
25 Friday? Friday the 27th, I rarely ever try to get out of
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8637
1 anything, but I did make a commitment to Mr. Burns, Doug
2 burns, former Assistant U.S. Attorney celebrating his 40th
3 birthday party and I said I would like to go with my
4 wife. I did tell him on the phone that you will charge
5 the jury next week and I may be here until 11 o'clock
6 Friday night.
7 THE COURT: You will not be here until 11 o'clock
8 Friday night.
9 MR. JENKS: How long do you hold them on Friday
10 night?
11 THE COURT: Normally the jury would sit until
12 6 o'clock. Normally at 6 o'clock they would go home.
13 MR. JENKS: Okay.
14 THE COU
RT: Now, my courtroom deputy wants to
15 know whether she should call him. I don't think so. Wait
16 until Tuesday morning when he comes in and we can talk to
17 him personally at the time, it would be better.
18 I'm telling you now, I don't consider that a
19 viable excuse such as the other people who had a death in
20 the family or things like that. I do not consider it a
21 viable excuse. I will not excuse him from the jury unless
22 I get agreement to do so and I will take the onus of
23 keeping him on the jury. But, of course, you will have an
24 unhappy juror. So you'll have to think about that.
25 As far as the time of summation.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8638
1 MR. WALLENSTEIN: Judge, before you rule, I was
2 virtually the defendant who put on the case and my client
3 was on the stand for two, two and-a-half days, so I d
on't
4 think my request is unreasonable.
5 THE COURT: After giving this due deliberation
6 and understanding that much of this is repetitive and
7 understanding even in the government's case a whole slue
8 of the defendants are in the same position as far as the
9 mail fraud is concerned, this is what I'm going to do.
10 The government, I'll be very generous to the
11 government and give you three hours.
12 Mr. Wallenstein, I'll give you your two hours.
13 MR. WALLENSTEIN: Thank you.
14 THE COURT: Mr. Schoer, one hour.
15 Mr. Jenks, three-quarters of an hour.
16 Mr. Nelson, one hour.
17 Mr. Dunn, one hour.
18 Mr. Geduldig, one hour.
19 Mr. Lee, one hour.
20 Mr. Neville, 30 minutes, and I'll give you a
21 little leeway if you want.
22 And Mr. Trabulus one and-a-half hours.
23 MR. TRABULUS: Your Honor, could I have the same
2
4 two hours that Mr. Wallenstein does? It seems to me a bit
25 odd considering all the counts I have here.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8639
1 THE COURT: I think you're right, two hours.
2 And in rebuttal, one and-a-half hours.
3 I'm sorry, I had you down for two. I was
4 mistaken in that.
5 MR. TRABULUS: Okay.
6 THE COURT: It's the government that I had in
7 rebuttal for one and-a-half but I got mixed up with the
8 fix. That to me is about 15 hours of summations. That is
9 tremendously long. We'll have to do it in two days which
10 means the first -- the second day we'll work late, I
11 didn't tell the jurors we'd work late the first day or
12 else we would. We'd have to cover eight hours of
13 summation and seven in another day plus time outs, which
14 means we'll have to work late both days. If I can do it
15 t
he first day I will, and certainly we'll do it the second
16 day. I don't want it to get into the third day because I
17 need that day for the charge. I don't want to start the
18 charge later in the day and give them the charge at
19 8 o'clock at night, that's not fair.
20 So that's what we'll do.
21 As far as the juror is concerned, we'll talk
22 about that on Tuesday, I suppose, when they come in.
23 MR. GEDULDIG: Judge, I think with regard to the
24 juror who has to go to this wedding or who wants to go to
25 the wedding, perhaps it might not be a bad idea to find
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8640
1 out from him before Tuesday exactly what the arrangements
2 are. If he knows that he will be here deliberating
3 possibly until 6 o'clock say on Friday.
4 THE COURT: I would let him off earlier than
5 that.
6 MR. G
EDULDIG: That's my point. If he knows
7 that, he may be able to contact the family of the party
8 who is getting married, let them know what the situation
9 is and make arrangements. If he's a juror who would like
10 to serve we ought to let him stay. If we surprise him on
11 Tuesday he may not be able to make alternate arrangements.
12 THE COURT: Does everybody consent to my
13 courtroom deputy calling him?
14 Okay.
15 MR. SCHOER: Perhaps she can find out where the
16 wedding is, what time it is.
17 THE COURT: Do you want to wait to see what
18 happens or have a suspension until Monday?
19 Do you want to wait and see what the latest word
20 is?
21 Okay. Then wait.
22 (Short recess taken.)
23 THE COURT: Well, my courtroom Deputy Clerk spoke
24 to this gentleman, Juror number 1.
25 THE CLERK: Yes.
OWEN M. WICKER, RPR OFFICI
AL COURT REPORTER 8641
1 THE COURT: The wedding is in the morning, on
2 Friday morning, I never heard of anything like this, but
3 anything goes today.
4 The reception is at 3:30.
5 THE CLERK: Three o'clock.
6 THE COURT: -- In the afternoon. Another
7 anomaly, but my suggestion is that he skips the wedding in
8 the morning and the jury deliberates until 4. The
9 wedding, by the way, the reception is in Bayside. He can
10 get there by 4:30, he'll miss the cocktail hour. So what,
11 I hate them anyway. The next wedding I make one one of my
12 daughters I'm skipping the cocktail hour -- if they still
13 make weddings -- I don't know if they do that, but my
14 suggestion is we tell him through my courtroom Deputy
15 Clerk that we work until -- that he can miss the
16 reception.
17 He's worried about there not being a plate for
18 him
if he's not there. She will tell him that I will call
19 the person who is getting married, I will call the caterer
20 and make sure they have a plate for him. Is there any
21 objection to any of this? That means we would break
22 Friday at four o'clock and I'm not going to restrain my
23 own instincts and put him over until Monday to
24 deliberate. We'll not deliberate Saturday or Sunday.
25 MR. TRABULUS: I have no objection.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8642
1 THE COURT: Anybody object to that.
2 MR. NELSON: No, Your Honor.
3 MR. WALLENSTEIN: That's fine, Judge.
4 Juror one one may object to that.
5 THE COURT: What.
6 MR. WALLENSTEIN: Juror 1 will not object.
7 THE COURT: By the way he emphasizes that he
8 wants to stay on the jury.
9 MR. WALLENSTEIN: That's the only way he can do
10 it then.
11 MR. JENKS: I have a question on the summations.
12 How fast can we talk?
13 THE COURT: Mr. Geduldig, having heard one of
14 your summations previously, I have no problem with your
15 summation.
16 MR. GEDULDIG: That's right, Judge.
17 THE COURT: But there is one or two other
18 lawyers, one in particular, that I will have to slow down,
19 I'm sure, because he will want to have his message
20 communicated to the jury so they will understand him.
21 MR. WALLENSTEIN: We have no idea who that might
22 be.
23 MR. WHITE: Your Honor, about the juror. Can I
24 ask a question? Did he indicate a willingness to skip the
25 actual ceremony and just show up late for the reception?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8643
1 THE COURT: He indicated a willness to skip the
2 ceremony, is that correct?
3 THE CLERK: Yes.
4 THE COURT: He did not indicate a willingness to
5 skip the reception. It's my willingness that he'll skip
6 part of the reception.
7 MR. WHITE: I see.
8 THE COURT: But he did indicate that he will give
9 up the ceremony. Any objection?
10 MR. WHITE: The government doesn't really have a
11 position on it, so whatever Your Honor wants to do.
12 THE COURT: Then we'll go along. We'll call him
13 and if you want to wait and hear what the result of the
14 next call is, you can wait.
15 Let's call him.
16 Ms. Kirschner wants to speak to the CJA
17 attorneys. It has nothing to do with the case about their
18 vouchers.
19 (Recess taken).
20 THE COURT: There was an old radio program that
21 was played long before Your Honor born and it end up by
22 saying "Sold American." Well, he's happy. He thanks me
23 and thanks you all. I told him everybody
wanted him to
24 stay as a juror. That's what I told him, including me.
25 And I said I'm the one who decided, not them. I
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8644
1 decided that he's not going to go to any cocktail hour and
2 he's very thankful and he's happy and he accepts. So
3 that's that.
4 We'll see you on Monday at 9 a.m.
5 Thank you.
6 One other thing, the list of exhibits, I hope
7 you're working on that and also the indictment.
8 MR. WHITE: We're working on it.
9 MR. SCHOER: We'll have the list of exhibits
10 mostly typed on Monday. We're waiting for the last disk
11 from the reporters to get the balance from the last two or
12 three days.
13 THE COURT: Okay.
14 (Proceedings adjourned.)
15
16
17
18
19
20
21
22
23
24
25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 8645
1 INDEX
2
3 S A N D R A B A R N E S........................... 8448 DIRECT EXAMINATION................................... 8448 4 VOIR DIRE EXAMINATION................................ 8458 CROSS-EXAMINATION.................................... 8473 5 VOIR DIRE EXAMINATION................................ 8487 CROSS-EXAMINATION.................................... 8489 6 CROSS-EXAMINATION.................................... 8493 CROSS-EXAMINATION.................................... 8494 7 CROSS-EXAMINATION.................................... 8508 VOIR DIRE EXAMINATION................................ 8513 8 RECROSS-EXAMINAITON.................................. 8524 CROSS-EXAMINATION.................................... 8530 9 RECROSS-EXAMINATION.................................. 8533 CROSS-EXAMINATION.................................... 8537
10
11 EXHIBITS 12
13 Government's Exhibit 1622 received in evidence....... 8514
14 Defendant's Exhibit FL received in evidence.......... 8451 Defendant's Exhibit FK received in evidence.......... 8473 15 Defendant's Exhibits FO and FP received in evidence.. 8477 Defendant's Exhibit FQ received in evidence.......... 8478 16 Defendant's Exhibit FT received in evidence.......... 8503 Defendant's Exhibit FZ received in evidence.......... 8542 17
