5834 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, : and MARTIN 9 REFFSIN, : TRANSCRIPT OF TRIAL 10 Defendants. :February 26, 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:
NORMAN 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 5835
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 Mr Shortcuts, 15 150 Nassau Street New York, New York 10038 16 JOHN S. WALLENSTEIN, ESQ. 17 For M
artin 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 5836
1 THE COURT: Good morning.
2 I want to go into our jurors. I didn't know we
3 had another matter on at 9:30 and I want to apologize for
4 keeping them waiting.
5 Any objection to me doing that?
6 MR. WHITE: No.
7 THE COURT: All right. I'm going to go into the
8 jury.
9 (The following occurred in the jury room.)
10 THE COURT: I hope you are all comfortable,
11 having coffee and all the other accoutrements.
12 I made a mistake. I
have another matter on at
13 9:30. I didn't realize that otherwise I would have had
14 you come in later. I apologize for that. It was totally
15 my fault. I didn't check with my courtroom deputy who
16 tells me what to do every day. Without her I couldn't
17 function. Please excuse me for the delay.
18 (End of proceedings in jury room.)
19 (An unrelated matter was taken by the Court.)
20 (Jury enters.)
21 THE COURT: Again, I wish you good morning,
22 ladies and gentlemen.
23 Please be seated. Again, I'm sorry. I apologize 24 for keeping you. I didn't know I had this other matter at 25 9:30 which I knew I had to take care of. I apologize
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5837
1 again to you, the lawyers and the parties. I certainly do
2 not want to keep you waiting.
3 You may proceed.
4 MR. TRABULUS: Thank you
, Your Honor.
5 I believe these transcripts are already in
6 evidence pursuant to the stipulation. Referring to BA
7 (13-90), BB-2 (13-94).
8 MR. SCHOER: Maybe we ought to explain how we
9 marked them, Judge. The way I marked them, I marked them
10 as a Defendant's Exhibit BA, but then I put in parenthesis
11 the tape number which is the government's tape number
12 which would be 13-90, so there is some reference to the
13 transcript and the government's tape which is already in
14 evidence, so that is how they are marked. If there is a
15 tape that the government hasn't put in evidence, then I
16 marked that as well as a B number for the defense.
17 THE COURT: Fine. When you say BA and 13-90, are
18 we talking about the 13-90 that the transcript is in?
19 MR. SCHOER: The same 13-90 a tape but a portion
20 of the transcript that the government hasn't played or
21 doesn't intend to play.
22 MR. TRABULUS: These are partial transcripts.
23 THE COURT: Is that satisfactory, Mr. White? 24 MR. WHITE: Yes, Your Honor. 25 MR. TRABULUS: With the Court's permission I
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5838
1 would like to read into the record what is being handed
2 out at this point.
3 THE COURT: As long as you do it slowly.
4 MR. TRABULUS: Okay. I skipped one.
5 BB-1 (13-94).
6 I was saying BB-2 and that is also (13-94).
7 BC-1 (13-95).
8 BC-2 (13-95).
9 BD-1 (13-98).
10 BD-2 (13-98).
11 BD-3 (13-98).
12 BE (13-80).
13 BF (13-81).
14 BG (13-82).
15 BI-1 (BH).
16 BI-2 (BH).
17 BK (BJ).
18 Now, Your Honor, the tape I will play.
19 THE COURT: Now, what are all of these numbers?
20 What do they represent? Transcripts
?
21 MR. TRABULUS: These represent transcripts which
22 under the stipulation are to be treated the same as the
23 other transcripts that have been introduced. 24 THE COURT: Transcripts that have not been 25 previously shown to the jury or played or anything else.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5839
1 MR. TRABULUS: That is correct, Your Honor.
2 THE COURT: Okay.
3 MR. TRABULUS: And they are transcripts of tapes
4 some of which may have previously been played for the jury
5 in other portions.
6 THE COURT: All right.
7 MR. TRABULUS: And if I may state what I propose
8 to do at this point also pursuant to the stipulation is to
9 mark in evidence, under the stipulation, Defendant's
10 Exhibit GC which is a tape known as EZ-42.
11 The transcripts that are being handed out now
12 BD-2 and BD-3, both of which have
(13-98) in parentheses,
13 they are transcripts of a portion to be played but I
14 intend to play more than what is transcribed.
15 THE COURT: Have you followed this, Mr. White?
16 MR. WHITE: I was with Mr. Trabulus until the
17 end. Defendant's XG, GC, the tape is what he wants to put
18 in is the same as Government's 98.
19 MR. TRABULUS: That's correct.
20 THE COURT: Any objection?
21 MR. WHITE: No.
22 THE COURT: All of those transcripts, plus the
23 tape GC, George Charlie, in evidence. 24 MR. SCHOER: May I hand the transcripts out to 25 the jury, Judge?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5840 Saffer-cross/Trabulus
1 THE COURT: Yes.
2 MR. TRABULUS: Your Honor, what I'm about to
3 play, transcript BD-2, is a transcription of a very small
4 portion. BD-2 is what will appear on what will be played.
5 T
HE COURT: This transcript is in alphabetical
6 order that I've just been handed?
7 MR. TRABULUS: Yes.
8 THE COURT: So when you say BD-2 (13-98) this is
9 a very short transcript.
10 MR. TRABULUS: That's correct.
11 THE COURT: I just want to make sure we are on
12 the same track.
13 MR. TRABULUS: Right. I'll be playing more than
14 that. And after that I'll be playing something which
15 again, which the following transcript transcribes, but
16 I'll be playing more than what is in the transcript.
17 MR. TRABULUS: May I proceed?
18 THE COURT: Yes.
19 CROSS-EXAMINATION
20 BY MR. TRABULUS:
21 A L A N S A F F E R , having been previously sworn by
22 the Clerk of the Court, was examined and testified as
23 follows: 24 MR. TRABULUS: After a few moments, Mr. Saffer, 25 I'll stop it and ask you if you recognize some of the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5841 Saffer-cross/Trabulus
1 voices on there.
2 MR. TRABULUS: Do you have headphones there?
3 THE WITNESS: I believe I do.
4 MR. TRABULUS: Are they plugged in?
5 THE WITNESS: Yes, they are.
6 (Audiotape played.)
7 (Start and stop.)
8 BY MR. TRABULUS:
9 Q Do you recognize the voice of the person who says
10 cards of $30 a piece?
11 A JUROR: We didn't hear it.
12 MR. TRABULUS: It is very faint.
13 THE COURT: I cannot hear it.
14 MR. TRABULUS: Your Honor, do you hear
15 something?
16 THE COURT: I hear something but I can't make it
17 out too well.
18 MR. TRABULUS: Can we make it louder?
19 A JUROR: What exhibit is that?
20 THE COURT: BD-2.
21 MR. TRABULUS: The portion that is being played
22 is not BD-2.
23 THE COURT: This is not on the transcrip
t? 24 MR. TRABULUS: That's correct. 25 THE COURT: You better let us know each time.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5842 Saffer-cross/Trabulus
1 This is not in the transcript and we can't hear it anyway.
2 MR. TRABULUS: Most of it is in the transcript
3 and I'll see if we can play it louder.
4 THE COURT: When it is in the transcript let us
5 know and when it is not let us know.
6 MR. TRABULUS: I will raise my hand.
7 THE COURT: When Mr. Trabulus raises his hand,
8 that's when it is in the transcript.
9 (Audiotape played.)
10 (Start and stop.)
11 BY MR. TRABULUS:
12 Q Can you hear it now, Mr. Saffer?
13 A Yes.
14 Q Do you recognize the voice who says $30 a piece, 20?
15 A Not totally.
16 MR. TRABULUS: We'll continue with it a little
17 further.
18 (Audiotape played.)
19 (Sta
rt and stop.)
20 BY MR. TRABULUS:
21 Q Mr. Saffer, can you hear it adequately?
22 A Not adequately.
23 Q Do you recognize Mr. Gordon's voice? 24 A I'm not positive, but -- I'm not positive. Can you 25 play it again?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5843 Saffer-cross/Trabulus
1 MR. TRABULUS: Can it be made still louder?
2 MR. WHITE: It can be louder, yes. I think it is
3 the static, not the volume.
4 THE COURT: I'll tell you now that I cannot hear
5 much of this. I don't know about the jury. They probably
6 have better hearing than I do, but I cannot hear much of
7 it. It certainly is not enough to be intelligible to me.
8 MR. TRABULUS: Your Honor, co-counsel has a
9 suggestion for improvable audibility.
10 We think if it is made a little bit faster and a
11 little bit louder, it might be more intelligible. It
does
12 seem to be played a little slower than normal.
13 Apparently there is no speed control on this
14 machine.
15 (Audiotape played.)
16 (Start and stop.)
17 THE WITNESS: That's Mr. Gordon's words.
18 BY MR. TRABULUS:
19 Q I just want to stop for a minute and ask you some
20 questions.
21 We'll continue.
22 Mr. Saffer, do you recall whether you yourself
23 were present when that happened? 24 A I probably was present. 25 Q Was that a sales training session conducted by
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5844 Saffer-cross/Trabulus
1 Mr. Gordon?
2 A Yes.
3 Q You heard in there at that point him tell the people
4 who were listening to him they had to be careful in asking
5 questions of prospective members so as to not giving him
6 misinformation regarding the Registry?
7 A Wit
h respect to geographic location.
8 Q Is in a typical training session that Mr. Gordon
9 would do?
10 A Yes.
11 Q Now, earlier on there was a reference to regular
12 cards. I don't know if you heard that. People on regular
13 cards?
14 A Regular cards?
15 Q Let me ask you this. When salespeople were brand
16 new, were they given initially the NG cards, people whom
17 already had been called and declined?
18 A Yes, to practice on.
19 Q They would try to sell them, occasionally they may be
20 able to, but it was a way for them to practice?
21 A Yes.
22 Q And if they did well in terms of developing a
23 presentation they would be given regular cards? 24 A Regular lead cards, yes. 25 MR. TRABULUS: Okay. Let's continue.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5845 Saffer-cross/Trabulus
1 (Audiotape playe
d.)
2 (Start and stop.)
3 MR. LEE: Your Honor, may I say something?
4 Mr. Trabulus raised his hand. I don't think everybody saw
5 that.
6 THE COURT: I didn't, but I think the jury as
7 they were reading the transcript saw that.
8 MR. TRABULUS: Thank you. I was trying to wave
9 it as much as I could.
10 Your Honor, at this point the tape simply ends.
11 This portion ends and we'll flip it over and
12 rewind it.
13 Your Honor, can you bear with me a moment as I
14 cue this forward. It will take a couple minutes.
15 THE COURT: Sure.
16 MR. TRABULUS: While this is going on I'll ask
17 Mr. Saffer some additional questions.
18 BY MR. TRABULUS:
19 Q Mr. Saffer, yesterday you were shown some pitch
20 sheets and -- do you have the exhibits with you?
21 A No.
22 Q Mr. Saffer, please take a look at Exhibit 374.
23 A Yes.
24 Q Now, that was a pitch sheet that Mr. White had you 25 read an excerpt from yesterday. Do you recall that?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5846 Saffer-cross/Trabulus
1 A That's correct.
2 Q And the excerpt was that numbered paragraph 3, which
3 I'll read. "As a member, you could also anonymously
4 nominate up to two qualified individuals annually just
5 like you've been nominated."
6 But before that it said the second full
7 paragraph, does it not say, "the Who's Who Registry is
8 limited to 60,000 business leaders who were nominated
9 usually by the established members and qualified for
10 inclusion in the Who's Who Registry."
11 A Above 3?
12 Q The second full paragraph on the sheet.
13 A The Who's Who Registry is limited to 60,000?
14 Q Yes.
15 A Repeat that?
16 Q It says "the Who's Who Registry i
s limited to 60,000
17 business leaders who are nominated usually by the
18 established members." Correct?
19 A That's correct.
20 Q So it leaves open the possibility that a nomination
21 would not be by an established member, correct?
22 A That's correct.
23 Q Now, the language where it says that "you can 24 anonymously nominate up to two qualified individuals 25 annually just like you've been nominated" or something
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5847 Saffer-cross/Trabulus
1 like that, it appeared on several of the pitch sheets?
2 A Yes.
3 Q But on many of them does it not simply say "as a
4 member you can anonymously nominate up to two qualified
5 individuals annually" without saying anything just like
6 "you've been nominated"?
7 A Sorry. Please repeat the question.
8 Q Sorry, I'm doing two things at onc
e here.
9 Why don't we, for example, take a look at 342.
10 I'm sorry, that's for Sterling.
11 Take a look at 368.
12 Do you have it, sir?
13 A I have 368.
14 Q Look at the numbered paragraph 2.
15 A Yes.
16 Q It says "you can also anonymously nominate up to two
17 qualified individuals annually."
18 A Yes.
19 Q It says nothing in there how the person, nothing
20 about the person himself who is receiving this being
21 nominated, correct?
22 A It says "you could also anonymously nominate up to
23 two individuals annually." 24 Q Nothing like "you've been nominated;" is that 25 correct?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5848 Saffer-cross/Trabulus
1 A That's correct.
2 Q Now, let's go back to the tape.
3 MR. TRABULUS: Now, we'll go back to the tape.
4 THE COURT: Is there a transc
ript number for
5 this?
6 MR. TRABULUS: There is no transcript for what is
7 about to be played, Your Honor.
8 A portion of what will be played on the other
9 side of the tape appears as BD-3.
10 THE COURT: When I say number, I meant letter.
11 MR. TRABULUS: BD-3.
12 THE COURT: All right.
13 MR. TRABULUS: I'll try to raise my hand when
14 that part is reached.
15 THE COURT: We'll try to watch you.
16 MR. TRABULUS: We should note for the record the
17 date of this. January 27, 1995, Your Honor.
18 (Audiotape played.)
19 (Start and stop.)
20 BY MR. TRABULUS:
21 Q Do you recognize that as Frank Martin's voice?
22 A Yes, I do.
23 MR. TRABULUS: Continue. 24 (Audiotape played.) 25 (Start and stop.)
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5849 Saffer-cross/Trabulus
1 BY MR. TRABU
LUS:
2 Q Now, you heard Mr. Martin telling whoever he's
3 speaking to, presumably salespeople, to avoid the one-year
4 sales, correct, the one-year memberships?
5 A I heard on the tapes.
6 Q And he indicated that one of those people frequently
7 cancel; is that correct?
8 A Kick out.
9 Q And I think he also said "cancel out."
10 A I seem to recall "kick out."
11 Q Now, the fact is that when somebody cancelled, Who's
12 Who would give them a refund as a matter of policy, would
13 they not?
14 A I can't be sure of that. That supposedly was the
15 company policy, to give a refund.
16 Q Well, do you know that with regard to a refund, the
17 policy, for example, would be to give a refund if somebody
18 sent a plaque back less a $20 or something charge for the
19 handling cost?
20 A Yes, sir. Yes.
21 Q And the reason that salespeople were
told to avoid
22 this kind of sale, they wanted to avoid selling to a group
23 of people who had a history of tending to want refunds or 24 cancellations, that's correct? 25 A That's what you are saying.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5850 Saffer-cross/Trabulus
1 Q Was that your understanding at the time?
2 A Repeat that again, please?
3 Q When you were working there, did you understand that
4 you were to try to avoid sales that might result in
5 requests for refunds or cancellations?
6 A Not really, no.
7 Q Well, did you understand that a refund or
8 cancellation would be something that the company would
9 honor, a refund request or a cancellation request?
10 A I'm not certain they would honor it.
11 Q You were told they would honor it?
12 A Yes.
13 Q The reason you are not certain is that you yourself
14 did not work in the department?
15 A That's correct.
16 Q So you have no personal knowledge?
17 A That's correct.
18 Q But certainly there would be no reason if the company
19 was not planning to give refunds or honor cancellations
20 there would be no reason for them to discourage people
21 that might make sales for a refund or cancellation
22 request; is that correct?
23 A Could you repeat that again? I lost my train of 24 thought. 25 Q Let's say the company was not planning to honor
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5851 Saffer-cross/Trabulus
1 refund requests or cancellation requests. In that
2 instance, the company wouldn't care whether you sold to
3 somebody who would cancel or refund?
4 MR. WHITE: Objection?
5 A It's hypothetical.
6 Q Do you think if the company was just interested in
7
taking people's money -- withdrawn.
8 You heard Mr. Gordon say I don't want -- earlier
9 on in the tape telling the woman I don't want you to just
10 sound like a telemarketer who is just interested in
11 selling or taking money, that's not the Who's Who way.
12 You heard something like that?
13 A He was indicating that he wanted a lot of money to
14 come in, I heard.
15 Q Sure, but you were not supposed to sound like a
16 telemarketer who is only interested in sales?
17 A That's correct.
18 Q And if a company was just interested in making sales
19 and getting money in and not honoring refunds, they
20 wouldn't care whether or not they would sell to people who
21 would ask only for a refund because they would get the
22 money, right?
23 A How would you differentiate on the phone whether they 24 are the type of person who would cancel or not cancel.
25 Q Apparently Mr. Martin believed the people who would
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5852 Saffer-cross/Trabulus
1 only buy a one-year membership frequently would change
2 their mind. He was telling the salespeople to avoid those
3 people who would buy only one year?
4 A I'm not certain I was at that meeting.
5 MR. SCHOER: Objection. Unresponsive.
6 THE COURT: I'll deny the application because the
7 question has been asked three or four times with varying
8 results.
9 Let's continue with something else.
10 MR. TRABULUS: I'll continue with the tape, Your
11 Honor.
12 (Audiotape played.)
13 (Start and stop.)
14 MR. TRABULUS: Turn it over.
15 BY MR. TRABULUS:
16 Q While that is being turned over, again, is that a
17 fairly typical training sales program?
18 A May I just explain something?
19
Q Well, I asked you if that is typical?
20 A Typical. Yes or no, in other words?
21 Q Yes. Can you say?
22 A I find it hard to answer yes or no unless I explain
23 myself. 24 THE COURT: So just say I can't answer the 25 question yes or no.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5853 Saffer-cross/Trabulus
1 THE WITNESS: I can't answer the question yes or
2 no.
3 MR. TRABULUS: Okay. We'll continue.
4 There may be some duplication of what we just
5 heard and then it will continue.
6 You can fast forward it to avoid the duplication.
7 (Audiotape played.)
8 (Start and stop.)
9 MR. TRABULUS: Stop. This is where we have a bit
10 of the transcript BD-3 and then we'll stop it.
11 Continue.
12 (Audiotape played.)
13 (Start and stop.)
14 MR. TRABULUS: Stop the tape.
15 BY MR. TRABULUS:
16 Q Again, do you hear Bruce Gordon's voice now?
17 A Yes, I do.
18 Q Let me ask you, before we continue, is this a typical
19 presentation for newly hired salespeople?
20 A Yes.
21 Q That is fairly typical?
22 A Yes, that's why I hesitated.
23 Q I understand. 24 The people were told, the salespeople are told 25 about, as Mr. Martin says, people get what they pay for?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5854 Saffer-cross/Trabulus
1 A That's correct, as to what Mr. Martin said.
2 MR. TRABULUS: All right. Let's continue.
3 (Audiotape played.)
4 (Start and stop.)
5 MR. TRABULUS: Stop it.
6 Now, we're back on the transcript, Your Honor.
7 The transcript BD-3.
8 THE COURT: Very well.
9 MR. TRABULUS: Continue, please.
10 (Audiotape played.)
11 (Start and stop.)
12 BY MR. TRABUL
US:
13 Q On that tape you heard Bruce Gordon tell the newly
14 trained salespeople they should give back the cards if the
15 people aren't appropriate for inclusion, right?
16 A Yes.
17 Q That's something he did on numerous occasions,
18 correct?
19 A For the new salespeople?
20 Q Yes.
21 A That was one sales meeting, I'm sure he did.
22 Q You are not aware if you were at that particular
23 sales meeting? 24 A I'm not sure. 25 Q He was doing that because there were certain people
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5855 Saffer-cross/Trabulus
1 for whom the directory was not designed, right?
2 A That's correct.
3 Q He was telling the salespeople to make their own
4 decision and be selective; is that correct?
5 A To make their own decision, yes.
6 Q Now, I would like to talk to you more about some
of
7 the conversations that you had with customers who upgraded
8 or who you would contact for an upgrade.
9 A Yes.
10 Q Now, when you would contact them for an upgrade,
11 would you sometimes, in addition to the upgrade, try to
12 get them to buy the CD ROM?
13 A Yes, I would ask them.
14 Q In trying to get them to buy the CD ROM, would you
15 mention the number of members whose names were on the
16 CD ROM, 50,000, 60,000, whatever it was?
17 A Occasionally I must have.
18 Q Wasn't it part of the pitch for the CD ROM to mention
19 the number of members on it?
20 A I have to refer to some of the scripts.
21 Q Sure, take a look.
22 While you're looking, you just heard Mr. Martin
23 on the tape give a pitch where the CD ROM had 50,000? 24 A That's correct. 25 Q And he was telling the people to be scrupulously
OWEN M. WICKER
, RPR OFFICIAL COURT REPORTER 5856 Saffer-cross/Trabulus
1 accurate because that particular version of the CD ROM had
2 had 50,000 because it hadn't been updated yet, correct?
3 A That's correct.
4 Q So that was a pitch that had the number of people on
5 the CD ROM?
6 A Yes, also came across another one, yes.
7 Q So when you would talk to upgrade members you would
8 mention the number of people on the CD ROM, right?
9 A Not all the time because when I did the upgrading I
10 really didn't use this pitch because they were sold to
11 other members.
12 Q So you would mention them sometimes?
13 A Sometimes, not all the time.
14 Q Did any of them ever say to you, hey, wait a second,
15 you told me about a CD ROM with 50,000 people on this.
16 When I was sold this there were only 30,000 people
17 supposed to be in this. I'm very disappointed that
there
18 are more members. Anybody say anything about that?
19 A No.
20 Q They didn't care if there were more than the total
21 amount that they were told that they were originally
22 limited to. They were happy.
23 A That I don't know. 24 Q Having more members on the CD ROM, more people to 25 network would increased the value of it, did it not?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5857 Saffer-cross/Trabulus
1 A Yes.
2 Q Let me ask you this, sir. Are you aware, sir, that
3 to the extent that mailing lists were used, the mailings
4 were made directly from an outside agency, an outside
5 mailing company?
6 A I have no idea.
7 Q Okay.
8 And the mailing lists were not culled to
9 eliminate existing members?
10 A I have no idea.
11 Q Now, if somebody was being solicited from a mailing
12 lis
t and they were on more than one mailing list, it could
13 easily happen that they might receive solicitations at
14 different times, more than once, correct?
15 A I'm not an expert in mailing lists. I don't know.
16 MR. TRABULUS: May I have Exhibit 1601, 1602,
17 1603 and 1605 in evidence.
18 BY MR. TRABULUS:
19 Q Mr. Saffer, I'm showing you 1601, 1602, 1603 and 1605
20 which are all in evidence, and there are a couple of extra
21 ones here, but take a look at those, 1 through 3 and then
22 5, and tell me if they are all addressed to the same
23 individual, are they not? They are addressed to Steven 24 West or S. West? 25 A Yes, they are.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5858 Saffer-cross/Trabulus
1 Q The first one is S. West; is that correct?
2 A Yes.
3 Q And the next one is to Steven West?
4 A Steven West.
5 Q And Steven West?
6 A Steven West.
7 Q And the last one is?
8 A Well, 1604 is Steven West.
9 Q Mr. Steven West, right?
10 A Yes. And the last one is Steven West.
11 Q That one has a different title?
12 A Steven Johnson.
13 Q That's not the one. 1605 has a title president or
14 pres?
15 A President.
16 Q And 1603 doesn't have the title?
17 A No, it doesn't.
18 Q And 1602 does have the title?
19 A 1602 does have a title.
20 Q And 1601 has the title but it doesn't have the first
21 name Steven, it has S, S. West; is that correct?
22 A That's correct.
23 Q These are all solicitation letters from Who's Who 24 Worldwide, right? 25 A It's on their stationery, yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5859 Saffer-cross/Trabulus
1 Q Assuming these are genuine, would that sugg
est to you
2 -- they all have different dates, right?
3 A December 28, 1992. March 31, 1994. August 8, 1994.
4 November 2, 1994. Different dates.
5 Q Assuming these are genuine and assuming the source
6 was mailing lists, would the differences in whether
7 there's a title or not, whether there's an initial or not,
8 a different date, suggest to you these must have come from
9 different mailing lists. The same individual must have
10 been on different mailing lists?
11 A I'm not an expert in the mailing list area. I can't
12 answer the question.
13 Q Fair enough.
14 Let me ask you this: During the course of your
15 conversations with people who upgraded, did you ever have
16 a situation like this?
17 You spoke to the person who you were trying to
18 get to upgrade and they said to you "wait a second, since
19 I bought this membership, I got another so
licitation
20 letter. And since there is no reason why you would
21 solicit somebody who is a member, I figure out that I'm on
22 a mailing list. I'm dissatisfied."
23 Did that ever happen? 24 A I don't recall that ever happened. 25 Q Now, Mr. Saffer, you yourself, have you ever seen an
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5860 Saffer-cross/Trabulus
1 advertisement for something to buy that would say "limited
2 supplies" or like "while quantities last"?
3 A Yes, I have.
4 Q Or "sale ends July 3rd," something like that?
5 A Yes, I have.
6 Q Did you ever have a situation it turns out the item
7 is still sold after July 3rd for the same price, maybe
8 even a lower price?
9 A Yes, I have.
10 Q You had a situation, even though it said quantities
11 limited, a year later they are still selling the same
12 thing
s?
13 A Yes, I have.
14 Q In those cases you didn't feel you were the victim of
15 any crime, did you, if you bought the item?
16 A Well --
17 Q Yes or no, sir?
18 A Yes.
19 Q You thought you were a victim of a crime?
20 A No, I misunderstood that.
21 Q You didn't think you were a victim of a crime?
22 A No.
23 Q If the item was supposed to be what it was supposed 24 to be, you were satisfied? 25 A Yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5861 Saffer-cross/Trabulus
1 Q It didn't really matter if the quantities were
2 limited or when the sale ended?
3 A No.
4 Q You might have been a little irritated that you could
5 have gotten a better price later, but you had no real
6 cause for concern, right?
7 A That's correct.
8 Q Now, Mr. Saffer, you were hired by responding to an
9 advertisement in Newsday; is that right? That's how
10 Mr. Gordon hired you?
11 A I saw a -- yes.
12 Q And there was an ad in the newspaper and you
13 responded to it; is that correct?
14 A Yes.
15 Q And before that, is it correct, sir, that you had
16 worked for Steve West?
17 A Yes, that is correct.
18 Q And you had worked in his company which published or
19 at least claimed to have published some directories,
20 right?
21 A Who's Who directories, yes.
22 Q You worked there for only about five months, correct?
23 A Yes. 24 Q And then a search warrant was executed there, right? 25 A Yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5862 Saffer-cross/Trabulus
1 Q And they still continued in operation after that,
2 right?
3 A Yes.
4 Q But you left at that point, right?
5 A Yes, with
in a few days.
6 Q And you spoke to an Inspector Biegelman at that
7 point, Postal Inspector?
8 A I believe Inspector Biegelman was the leading
9 inspector who came in and announced himself as a
10 government inspector and said the company was under
11 investigation.
12 Q Did somebody from the postal inspector's office
13 actually advise you to leave?
14 A They suggested I do not return to the company.
15 Q You yourself were not arrested or charged at that
16 point; is that correct?
17 A That's correct.
18 Q But there were certainly some things that were wrong
19 with the way that company operated; is that correct?
20 A Yes.
21 Q And you didn't want to continue there at that point;
22 is that correct?
23 A That's correct. 24 Q You didn't want to be associated with a business of 25 the sort that Mr. West was operating, correct?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5863 Saffer-cross/Trabulus
1 A That's correct.
2 Q And that business would fail to deliver to people?
3 A I heard -- I didn't know that for a fact but I did
4 hear.
5 Q And that business would take money from people to put
6 them into registries and their names wouldn't appear in
7 the registries?
8 A That I'm not certain of.
9 Q And that business would double-bill people and run
10 their names through the credit cards, run their credit
11 cards through multiple times?
12 A I heard that, yes.
13 Q And you didn't want to have any part of that; is that
14 correct?
15 A That's correct.
16 Q And then you responded to an ad in the newspaper and
17 you were hired by Mr. Gordon, correct?
18 A That's correct.
19 Q And you stayed there for about five years; is that
20 correct?
21 A Yes.
22 Q Nearly five years?
23 A Yes. 24 Q It was an entirely different type of operation in 25 your perception, right, sir?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5864 Saffer-cross/Trabulus
1 Yes or no?
2 A Yes.
3 Q And while you were there, in Mr. Gordon's operation
4 or his business, shouldn't say his operation, business,
5 it's fair to say you believed you weren't committing any
6 type of crime at that point, did you?
7 A At the early part of my employment, I didn't believe
8 I was.
9 Q You stayed there, did you not?
10 A Yes, I did.
11 Q Is it not true that as time went on, Mr. Gordon's
12 business, the Who's Who Worldwide, offered more and more
13 benefits to members; is that correct?
14 A That's correct.
15 Q And it became more and more of not just a plaque, not
16 just a book but really offering services to members,
17 correct?
18 A Yes, correct.
19 Q And it started publishing the Tribute magazine?
20 A Yes.
21 Q Is it fair to say that the company became better and
22 better as time went on?
23 A Uhm -- 24 Q Yes or no? 25 A Larger and larger, yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5865 Saffer-cross/Trabulus
1 Q Better and before in terms of what it provided to its
2 members?
3 Yes or no, sir?
4 A Yes.
5 Q Were you at Mr. West's business long enough to tell
6 whether or not it was getting worse and worse?
7 A Not really.
8 Q You were only there for five months?
9 A Five months.
10 Q Now, there came a point in time when you were
11 arrested, were you not?
12 A Yes.
13 Q And at that point in time -- soon after that you
14 decided to cooperate; is that correct?
15 A That's correct.
16 Q A couple weeks later?
17 A Yes.
18 Q And you had been familiar, were you not --
19 A May I correct that?
20 Q Yes, if it was mistaken, certainly.
21 A I didn't decide to cooperate a couple weeks later. I
22 was asked by Mr. Ron White's office, my attorney had said
23 that he wanted to speak to me in that case. 24 Q That was an interview? 25 A Yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5866 Saffer-cross/Trabulus
1 Q To see whether or not you wanted to cooperate with
2 them and whether or not they wanted to have you cooperate
3 with them, correct?
4 A Uhm, they asked me a few questions which I did
5 answer.
6 Q Did you understand that that interview was with a
7 view to seeing whether or not you might cooperate with the
8
government?
9 A Yes, I did.
10 Q And get a deal?
11 A Yes.
12 Q At that point in time you knew, did you not, that the
13 people who had cooperated in the West situation had done
14 pretty well, right?
15 A I didn't know -- explain "done pretty well."
16 Q Did you know that none of them went to jail?
17 A Yes.
18 Q And at that time you were about 56 years old, is that
19 correct, 55 or 56?
20 A Yes, approximately.
21 Q And you had just gotten married recently before that,
22 right?
23 A I got married in '95. May 21, 1995. 24 Q And your life had just taken a turn for the better, 25 sir?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5867 Saffer-cross/Trabulus
1 A Yes, I would say that.
2 Q And you wanted to cut your risks, is that fair to
3 say?
4 A Yes, it is.
5 MR. TRABULUS: Judg
e, can we possibly take a
6 break at this point.
7 MR. JENKS: Judge, can we possibly take a break
8 at this time?
9 THE COURT: Yes.
10 Members of the jury, we'll take a recess at this
11 point. Do not discuss the case at this point.
12 (Jury exits.)
13 MR. DUNN: Your Honor, if you recall when
14 Mr. Trabulus asked for a one month extension back in
15 December, I opposed it because I had a trial schedule with
16 Judge Scheindlin for March 16th. I initially asked Judge
17 Scheindlin to try to put it for the 23rd because as it was
18 March 9th would be a nine week window and I thought we
19 might need nine weeks. It looks like there will be a
20 little bit of a dovetailing on those cases.
21 I made arrangements for another attorney to
22 select the case before Judge Scheindlin but I'm a little
23 concerned. My first request, I know the other attorneys
24 asked not to work Fridays, I wonder if it is not possible, 25 next Friday, if it is all right with the Court and jury
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5868 Saffer-cross/Trabulus
1 that we work that Friday afternoon if possible just
2 because of the time-frame.
3 THE COURT: Well, I have to check with my
4 courtroom deputy.
5 MR. DUNN: If it's okay, Your Honor. Also I'm
6 hoping since it is an anonymous jury with Judge Scheindlin
7 that it will take two or three days, might take up to a
8 week. But as far as summations and charge I will not have
9 a problem, but it is quite possible with deliberations and
10 when the evidence starts in that other case.
11 I've spoken with Mr. Rubin and he has no
12 objection, if it is okay with the Court, if that happens
13 he would agree that another attorney could stand in for me
14
for deliberations. Of course if that is okay with the
15 Court.
16 THE COURT: If Mr. Rubin is given a very careful
17 allocution as to his rights and the advantages and
18 disadvantages, it will be all right with me.
19 MR. DUNN: I'll address that with him and then
20 come back to you.
21 THE COURT: All right. But you say you want to
22 work a week from tomorrow.
23 MR. DUNN: Right, I would be happy to work. And 24 I've spoken to a number of the attorneys and they 25 understand the situation I'm in.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5869 Saffer-cross/Trabulus
1 THE COURT: They are the ones that asked not to
2 work on Friday.
3 MR. DUNN: I understand.
4 THE COURT: That's why I did it in the first
5 place.
6 MR. DUNN: There's a little supplement in that I
7 asked them and of course with the jury, if that
would be
8 okay and even work longer days than now.
9 MR. LEE: I have to say I'm not in that group.
10 MR. TRABULUS: As well as I.
11 THE COURT: Is there anyone who objects to
12 working a week from next Friday?
13 MR. TRABULUS: I don't.
14 MR. LEE: I actually have a matter before Judge
15 Glasser at 10 a.m. on the 6th. It has just happened it
16 has always been on the Friday that Your Honor works. This
17 is the second time. It's at 10 a.m. in the morning. If
18 it is in the afternoon session, I'll try to rush.
19 THE COURT: It will only be an afternoon
20 session. No one objects to that.
21 MR. WALLENSTEIN: I would object to that. I have
22 a thousand things to do.
23 THE COURT: Mr. Dunn, I'm not an arbitrator or 24 conciliator or a mediator in the criminal case. Work it 25 out with your colleagues. I'll see about it. But if they
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5870 Saffer-cross/Trabulus
1 don't agree I will not.
2 MR. DUNN: I understand, Your Honor.
3 (Recess taken.)
4 (Jury enters.)
5 THE COURT: Please be seated, members of the
6 jury.
7 You may proceed, Mr. Trabulus.
8 MR. TRABULUS: Thank you, Your Honor.
9 CROSS-EXAMINATION
10 BY MR. TRABULUS: (Continued.)
11 Q Now, Mr. Saffer, yesterday I played a tape for you in
12 which you were seeking to make a purchase to this fellow,
13 Steve West, who posed as Andy Cappo. Do you remember
14 that?
15 A I was seeking to make a purchase?
16 Q In other words, you were speaking to him as a
17 salesperson. Do you remember that tape?
18 A Yes.
19 Q He posed as somebody who was high up within a
20 regional postal area; is that correct?
21 A That's correct.
22 Q And you
were aware at the time that you had done that
23 that Mr. West's business had been the subject of an 24 investigation by the postal inspectors, correct? 25 A That's correct.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5871 Saffer-cross/Trabulus
1 Q And you had been spoken to yourself following the
2 search warrant at Mr. West's business by postal
3 inspectors; is that correct?
4 A That's correct.
5 Q And you were aware that postal inspectors were the
6 people who would investigate fraud of the sort that
7 Mr. West was engaged in; is that correct?
8 A That's correct.
9 Q And you had no hesitation, did you, in selling to
10 somebody who was -- claimed to be I guess a regional
11 manager of bulk mail in the postal service, correct?
12 A That's correct.
13 Q Now, you were aware, were you not, during the time
14 that you work
ed at Who's Who Worldwide that there was a
15 lawsuit brought by Reed Elsevier, Marquis Who's Who,
16 against Who's Who Worldwide?
17 A Yes, I was.
18 Q And did Mr. Gordon express a view to you that Reed
19 was trying to put him out of business because he was a
20 competitor?
21 A Yes.
22 Q And did he express to you that Reed also used mailing
23 lists but basically didn't provide services to people they 24 sold to -- withdrawn. 25 Did he tell you that Reed also used mailing
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5872 Saffer-cross/Trabulus
1 lists?
2 A Yes.
3 Q Did he tell you that they were just basically a book
4 publisher? Yes?
5 A He did mention that to me, Mr. Gordon.
6 Q And his company was really doing something for the
7 people listed in it, did he tell you that?
8 A He would tell me that,
yes.
9 Q Now, did there come a point in time where the covers
10 on the books had to be changed? Are you familiar with
11 that?
12 A No, I'm not.
13 Q Okay.
14 Did there come a point in time there seemed to be
15 some kind of problem with the mailings? You heard talk
16 about that?
17 A Yes, I remember that.
18 Q And that was around the very late 1994, beginning of
19 1994 time period?
20 A Yes.
21 Q Leading up to eventually the day there was a search
22 warrant executed; is that correct?
23 A That's correct. 24 Q And the problem with the mails there seemed to be a 25 great reduction in the volume of deliveries, right?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5873 Saffer-cross/Trabulus
1 A That I really don't know.
2 Q Fewer cards were coming in?
3 A Mr. Gordon mentioned that the mails were
being held
4 up at the post office, delayed, he mentioned something
5 along those lines.
6 Q Fewer cards were being received in comparison to what
7 would have been expected from past experience?
8 A Yes, that's correct.
9 Q Did he explain to you that he had tried to contact
10 the post office about that?
11 A Yes, he did.
12 Q And were you aware that Debra Benjamin also contacted
13 the post office about that with him?
14 A No, Mr. Gordon mentioned.
15 Q He believed that the postal service was holding up
16 his mail? Did he tell you that?
17 A Just that it was being held up, that it might have
18 gone -- I don't remember exactly how he worded it.
19 MR. TRABULUS: Bear with me a moment, Your Honor.
20 THE COURT: Yes.
21 BY MR. TRABULUS:
22 Q Were upgrades and renewals given out to salespeople
23 kind of as a reward just like nominat
ion ballots? 24 A They were given out. As a reword -- 25 Q Is it fair to say that the better salespeople were
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5874 Saffer-cross/Trabulus
1 given more upgrades to call or renewals to call?
2 A Yes, that's fair to say that.
3 Q And how many upgrades would you be given on a weekly
4 basis, if you know?
5 A They were on sheets. Exactly how many were given, I
6 don't really remember, but I was given them.
7 Q Is it fair to say quite a few of the people you
8 contacted did in fact upgrade?
9 A Yes.
10 Q And renewed in the case of a renewal?
11 A Yes.
12 Q And you mentioned yesterday there were other
13 salespeople who made more money than you did?
14 A That's correct.
15 Q And presumably they would be given even more upgrades
16 than you would be given; is that correct?
17 A That I don't know.
18 MR. TRABULUS: No further questions.
19 (Continued.)
20
21
22
23 24 25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5875 Saffer-cross/Nelson
1 CROSS-EXAMINATION
2 BY MR. NELSON:
3 Q Good afternoon, Mr. Saffer.
4 Rather good morning, Mr. Saffer. My name is Alan
5 Nelson and I represent Frank Martin.
6 A Yes.
7 Q You know Mr. Martin; is that correct?
8 A Yes, I do.
9 Q Now, Mr. Saffer, am I correct, you were arrested on
10 March 30, 1995 while you were working at the Who's Who
11 Worldwide offices at 1983 Marcus Avenue in Lake Success?
12 A Yes.
13 Q That's when the search warrant was executed by the
14 postal inspectors effectively shutting down the operation?
15 A That's correct.
16 Q And you've been working there since 1990?
17 A July 1990, that's correct.
18 Q And as was brought out by Mr. Trabulus, this wasn't
19 the first time that you had been working at a location
20 where the postal authorities had come in and executed a
21 search warrant at a place where you were working; is that
22 right?
23 A That's correct. 24 Q It happened in 1990 when you were working for Steven 25 West; is that correct?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5876 Saffer-cross/Nelson
1 A That's correct.
2 Q And shortly after that you applied for a position
3 with Who's Who Worldwide premised upon an ad in the
4 newspaper; is that correct?
5 A That's correct.
6 Q Now, one of the differences, however, when you were
7 working for Steven West you were not arrested in 1990; is
8 that right?
9 A I was not arrested.
10 Q But on March 30, 1995, you we
re arrested; is that
11 right?
12 A That's correct.
13 Q Now, on March 30, 1995, you were, I believe, 56 years
14 old; is that correct?
15 A March what?
16 Q March 30, 1995.
17 A That's correct.
18 Q And you had recently been married?
19 A Yes.
20 Q You had been working at this job at Who's Who
21 Worldwide which was a good paying --
22 A May I make a correction?
23 Q Sure. 24 A Now, I was arrested on March 30th. I wasn't married 25 at that time. I got married May 21, 1995 after the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5877 Saffer-cross/Nelson
1 arrest.
2 Q So you were engaged at that point, I assume?
3 A Yes.
4 Q You were anticipating that you were about to become
5 married?
6 A Yes.
7 Q And you were working for some lengthy period of time,
8 five years now at
Who's Who Worldwide in what was a
9 relatively good paying job; is that correct?
10 A That's correct.
11 Q In essence, your life had been going on reasonably
12 well. You were now getting married, you were in a good
13 job. Things were going well in your life; is that
14 correct?
15 A That's correct.
16 Q And on March 30, 1995, when the postal authorities
17 came into Who's Who Worldwide and executed that search
18 warrant arresting you, would it be fair to say that in one
19 fell swoop your life shattered right in front of you?
20 A Yes.
21 Q Now, when you were arrested back then that day, were
22 you taken outside of Who's Who Worldwide in handcuffs?
23 A Yes. 24 Q And while you were there during the course of the 25 search that was taking place when they were escorting
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5878 Saff
er-cross/Nelson
1 people away, did you have the occasion to meet Inspector
2 Biegelman?
3 A Yes.
4 Q And he was the same guy who you had met five years
5 earlier at West; is that right?
6 A That's correct.
7 Q Now, am I correct that later that same day you were
8 taken to court; is that right?
9 A That's correct.
10 Q And you met with a criminal defense attorney?
11 A Yes.
12 Q And up to that point in your life you had never
13 needed a criminal defense attorney; is that right?
14 A That's correct.
15 Q You had never been arrested before, right?
16 A That's correct.
17 Q And you never had any reason for somebody like me or
18 the other nine criminal defense attorneys who are here
19 representing your former co-workers here on trial; is that
20 correct?
21 A That's correct.
22 Q And in your own wildest dreams y
ou never expected to
23 need a criminal defense attorney representing you for your 24 own protection; is that correct? 25 A Yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5879 Saffer-cross/Nelson
1 Q And you met an attorney that day by the name of Dan
2 Myers; is that right?
3 A Yes.
4 Q And when you met with Mr. Myers, am I correct that he
5 told you a little bit about what the charges against you
6 were; is that correct?
7 A Yes.
8 Q And he showed you basically a book which I'll show
9 you right now which is the criminal complaint, the
10 complaint and affidavit in support of the arrest and
11 search warrants; is that right (handing)?
12 A I don't remember.
13 Q Well, would I be correct --
14 A I saw this before, but I don't remember.
15 Q Well, Mr. Myers went over with you before you
16 appeared be
fore the Judge that there were criminal charges
17 against you?
18 A Yes.
19 Q And he in essence told you there is a complaint and
20 showed you there was a book and reviewed basically what
21 the charges were as they related to you; is that right?
22 A That's correct.
23 Q And am I correct that before you even met with 24 Mr. Myers, you met with Marty Biegelman; is that right? 25 A Can you repeat that?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5880 Saffer-cross/Nelson
1 Q Sure.
2 Between the time that you were escorted out of
3 Who's Who Worldwide at 1983 Marcus Avenue and Dan Myers,
4 the person who was going to be your criminal defense
5 attorney, the person who would protect your rights and
6 interests, you spent time with Inspector Biegelman; is
7 that right?
8 A Yes, that's correct.
9 Q Inspector Biegelm
an took you to an office, didn't he?
10 A Yes, he did.
11 Q And he took you to an office, I think it was in
12 Hicksville; is that right?
13 A No.
14 Q Where was that office?
15 A In Brooklyn.
16 Q Okay.
17 And you sat down with Inspector Biegelman at that
18 time and he went through with you paperwork, sort of
19 pedigree information, your background, where you live,
20 things along that line?
21 A I'm not sure if it was Inspector Biegelman at that
22 point who went through everything with me. I'm not
23 certain. It was an inspector. I don't know if it was 24 Mr. Biegelman. 25 Q Maybe it was an Inspector Leonard possibly?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5881 Saffer-cross/Nelson
1 A I don't remember.
2 Q But it was one of the postal inspectors?
3 A Yes.
4 Q Did that postal inspector
tell you during the period
5 of time, between being taken out of the 1983 Marcus Avenue
6 office and your arrival in court where you met with an
7 attorney, that the government was looking for your
8 cooperation and that would be a means by which you would
9 be able to help yourself?
10 A I don't recall that. I don't remember that.
11 Q Do you recall whether or not either Inspector
12 Biegelman or any other inspector told you that day before
13 you even went to court since you were only a salesperson
14 and they really wanted to get the owner of the company,
15 the quicker you decided to help them in their
16 investigation the better chance you would have of helping
17 yourself?
18 A I don't recall that.
19 Q Were you told that there were other salespeople who
20 were already doing this, cooperating with the government
21 so that you should act quickly so th
at you don't lose that
22 opportunity?
23 A I don't remember that. 24 Q Now, would I be correct in stating that between the 25 period of time literally when the postal inspectors
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5882 Saffer-cross/Nelson
1 arrived until the time that you got to court, you were
2 rather scared?
3 A Yes.
4 Q You had never gone through anything like this
5 before. It was a terrifying experience; is that right?
6 A That's correct.
7 Q And then when you got to court you met with Mr. Myers
8 and he told you something about what the charges are,
9 correct?
10 A Yes.
11 Q And do you recall that Mr. Myers told you that if you
12 were convicted of the charges, you could possibly go to
13 jail?
14 A That's correct.
15 Q And am I correct that Mr. Myers also explained to you
16 th
at there is something called the federal sentencing
17 guidelines which mandates certain sentences that a judge
18 has to impose based upon the nature of the penalty?
19 A Yes.
20 Q And he explained to you based upon what the nature of
21 the charges against you were that you felt within a range
22 based upon his predictions anyway, that you would have to
23 go to jail and that it would be mandatory if you were 24 convicted, did he tell you that? 25 A Yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5883 Saffer-cross/Nelson
1 Q Would it be fair to say once your own lawyer told you
2 that's what you were facing and that's what might happen,
3 it made you a lot, lot, lot more scared than when you were
4 first taken out of there in handcuffs?
5 A Yes.
6 Q Now, am I correct that two weeks after your arrest on
7 April 18, 1995 you and
your attorney Dan Myers met with
8 the government?
9 A That's correct.
10 Q That would be with Inspector Biegelman, right?
11 A That's correct.
12 Q And with Ron White; is that right?
13 A That's correct.
14 Q And you, Mr. Myers, Ron White and Inspector Biegelman
15 all sat down in an office together; is that right?
16 A That's correct.
17 Q And am I correct that at that time Inspector
18 Biegelman and Mr. White went over what the charges were
19 against you and told you in an outline form sort of what
20 they thought the evidence would be against you?
21 A Yes, that would be correct.
22 Q And they told you during the course of going through
23 that that they had some telephone recordings of you with a 24 confidential informant; is that right? 25 A That's correct.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5884 Saf
fer-cross/Nelson
1 Q One of those recordings is a recording of a tape that
2 Mr. Trabulus played for you yesterday where you indicate
3 during the course of the recording that the seminar was
4 conducted at Hilton Head when in fact it hadn't; is that
5 correct?
6 A That's correct.
7 Q In fact, in the complaint, and I direct your
8 attention to page 68, paragraph 3.
9 A I see it.
10 Q The complaint actually specifies that particular
11 telephone conversation where you told the confidential
12 informant that Hilton Head was conducted when in fact it
13 had been cancelled; is that correct?
14 A That's correct.
15 Q Now, am I correct, and I believe you testified
16 yesterday, that Bruce Gordon had advised you and other
17 sales staff members that in fact Hilton Head had been
18 cancelled before you made the statement that was contained
19 i
n that report; is that correct?
20 A (Perusing.) I just want to look at this for a second.
21 Q Okay.
22 It doesn't say that in there.
23 A That's correct. 24 Q Am I correct that before you had the telephone 25 conversation which you recorded with Steven West when he
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5885 Saffer-cross/Nelson
1 was acting as a confidential informant, you had attended a
2 sales meeting where Bruce Gordon told you and other
3 salespeople Hilton Head was cancelled, correct?
4 A That's correct.
5 Q And he told you this to make sure that you didn't
6 tell anybody on the telephone that Hilton Head took place
7 when in fact it was cancelled and cannot make a
8 misrepresentation like that; is that right?
9 That's the purpose why he told you this, right?
10 A That's correct.
11 Q But nonetheless, you lie
d about this on the telephone
12 in this December 2, 1994 recording despite the fact that
13 Bruce Gordon had instructed you and other salespeople not
14 to say that; is that correct?
15 A That's correct, I did say that.
16 Q And when you looked at that complaint and when you
17 spoke to Mr. White and Inspector Biegelman at the United
18 States Attorney's Office during your meeting in April of
19 1995, you knew you had lied about Hilton Head despite the
20 fact that you had been instructed by the company not to
21 tell anybody -- withdrawn. Despite the fact you had been
22 instructed to not tell customers that it took place
23 because in fact it was cancelled. Is that right? 24 A Can I offer an explanation on that? 25 Q I'll withdraw the question because it was such a
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5886 Saffer-cross/Nelson
1
long-winded question it probably doesn't allow you to give
2 a yes or no answer.
3 When you were in the meeting at the U.S.
4 Attorney's Office you knew you had in fact lied about
5 Hilton Head in that tape; is that right?
6 A That's correct.
7 Q Now, during that meeting Inspector Biegelman and Ron
8 White confronted you with that, amongst other things; is
9 that right?
10 A That's right.
11 Q And they stressed the evidence that they told you
12 that they felt they had against you; is that right?
13 A Yes.
14 Q And they told you about this tape, amongst other
15 recordings; is that right?
16 A Told me that, yes.
17 Q Am I correct that the government also told you that
18 not only did they have you for things that you did at
19 Who's Who Worldwide, they had other possible charges
20 against you as well?
21 A That's correct.
22 Q Okay.
23 And they told you that they were thinking of 24 charging you with perjury for your testimony during the 25 course of the Reed litigation; is that right?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5887 Saffer-cross/Nelson
1 A That's correct.
2 Q Did they also mention that they thought you might
3 have some tax problems as well?
4 A That I don't recall. I don't remember that.
5 Q And am I correct that during the course of the Reed
6 litigation, you had testified during a deposition that
7 there were no sales quotas at Who's Who Worldwide when in
8 fact there was sales quotas?
9 A Can I comment on this?
10 Q No. That's a yes or no?
11 A Yes.
12 Q So you knew that was a false statement you had made
13 and the government confronted you with that; is that
14 correct?
15 A That's correct.
16 Q N
ow, am I correct that the government, just as
17 Mr. Myers told you during the course of this meeting, that
18 if you were convicted based upon the federal sentencing
19 guidelines, you faced a mandatory jail sentence; is that
20 right?
21 A That's correct.
22 Q And they told you that in their opinion that was just
23 what would happen if you went to trial because they felt 24 in their opinion they had sufficient evidence to prove a 25 case against you; is that right?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5888 Saffer-cross/Nelson
1 A That's correct.
2 Q Okay.
3 Am I correct that they then also told you about
4 something called "section 5K1.1" of the federal sentencing
5 guidelines?
6 A I don't recall those numbers. If you could explain
7 it further.
8 Q Let me use it in layman's terms.
9 Am I correct durin
g the course of this meeting,
10 Mr. White, Mr. Biegelman told you that they were
11 interested in acquiring your cooperation for testimony
12 against other people in Who's Who Worldwide as part of
13 their investigation?
14 A I don't know if that was the chain of events that
15 happened. I don't recall exactly. If I could elaborate
16 on that.
17 Q No.
18 Did you go there for the purpose based upon
19 discussions with your attorney, Mr. Myers --
20 A Yes.
21 Q -- That by going to see the government you might be
22 able to demonstrate to the government your utility as a
23 witness on their behalf? 24 A Yes. 25 Q And am I correct that Mr. Myers told you that if the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5889 Saffer-cross/Nelson
1 government felt that you would be useful as a witness on
2 their behalf then th
ey would be in a position to decide
3 whether they wanted to utilize you as a cooperating
4 witness?
5 A That's correct.
6 Q And he told you, am I correct, that if the government
7 makes a determination that you are useful as a cooperating
8 witness in their investigation, then they can write a
9 letter to the Judge who would eventually sentence you in
10 the case, and in this instance it would be Judge Spatt,
11 and advise the Judge of the cooperation that you had
12 provided in their investigation; is that correct?
13 A That's correct.
14 Q And he told you if such a letter is written to the
15 Judge then the mandatory requirement under the federal
16 sentencing guidelines that you go to jail no longer
17 applies; is that right?
18 A No, that's not correct.
19 Q Well, did he tell you --
20 A That it no longer applies?
21 Q That once that le
tter is written, the Judge has the
22 power to give you a sentence that's below what the
23 mandatory -- 24 A Yes. 25 Q I may have phrased it wrong. It might have been
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5890 Saffer-cross/Nelson
1 inartfully stated. I'll withdraw the question and restate
2 it.
3 Am I correct that your attorney and later the
4 government advised you that if the government files such a
5 letter with the Judge, it gives the Judge the power, in
6 Judge Spatt's discretion, to give you a sentence that is
7 lower than what the mandatory federal sentencing
8 guidelines require?
9 A That's correct.
10 Q Did either Inspector Biegelman or Ron White advise
11 you that based upon their experience in the prior
12 investigation which had taken place of Who's Who in
13 American Executives, the Steve West Company
, that there
14 had been close to 20 cooperating witnesses who had been
15 employees?
16 A I don't recall that.
17 Q Were you advised at any point in time that 20 out of
18 20 of those cooperating witnesses, when it came time for
19 them to be sentenced in the West investigation, 20 out of
20 20 received nonjail sentences?
21 A Yes, but not in so many words. Yes.
22 Q Basically you learned before you made the decision to
23 become a cooperating witness that the odds, the chances 24 were pretty darn good that if you became a cooperating 25 witness and joined the government's team, there was a
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5891 Saffer-cross/Nelson
1 pretty good chance that based upon this letter being filed
2 by the prosecution, you wouldn't go to jail; is that
3 right?
4 A I didn't -- I must answer it yes or no?
5 Q Yes.
6 A It's hard for me to answer yes to that.
7 Q You were hedging your bets somewhat, isn't that fair
8 to say?
9 A I was doing what I felt was right.
10 Q And in doing what you felt what was right was right
11 for you and your fiancee; is that right?
12 You didn't want to go to jail; is that correct?
13 A That's correct.
14 Q And you were told by your lawyer and you found out
15 based upon your own information that you had that nobody
16 from the West investigation who cooperated went to jail,
17 right?
18 A That's correct.
19 Q And that gave you a pretty good insight into making
20 odds that there was a darn good chance you wouldn't be
21 going to jail if you cooperated in this case; isn't that
22 right?
23 A Can I explain something? 24 Q No. 25 Answer it yes or no.
OWEN M. WICKER, RPR OFFICIAL COUR
T REPORTER 5892 Saffer-cross/Nelson
1 A Yes, that was right.
2 Q Now, am I correct that while you were at this first
3 meeting you found out that the people running the
4 investigation were Ron White and Inspector Biegelman; is
5 that right?
6 A That's correct.
7 Q And those were the people that you met with about ten
8 times from April 1995 up to I guess yesterday or the day
9 before when you were last prepared for your testimony; is
10 that right?
11 A Ron White was --
12 Q You met with Mr. Pagano?
13 A Mr. Al Pagano, yes.
14 Q And would I be correct in stating that based upon the
15 information that you had and your meetings you had with
16 Mr. White you knew the person who you had to please, the
17 person who you had to provide information to, the person
18 who was going to write the letter to Judge Spatt on your
19 b
ehalf was going to be Ron White; is that right?
20 A No, it's not.
21 Q Well, do you think somebody other than Mr. White was
22 going to write the letter?
23 A No, Mr. White was going to write the letter, but I 24 was not there to please him. To tell the truth. 25 MR. NELSON: I ask for a read back, please.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5893 Saffer-cross/Nelson
1 THE COURT: May I have the question, please.
2 (Question read.)
3 THE COURT: The answer after the words that
4 Mr. White would write the letter, the rest of the answer
5 is stricken.
6 MR. WHITE: I think if you read the question
7 before the one that was read, Mr. Nelson asked him at the
8 same time you were to please Mr. White and Mr. White was
9 to write the letter. That's what he was responding.
10 THE COURT: Well, you respond to the question at
1
1 hand and not the one beforehand.
12 Your request is denied.
13 MR. NELSON: Thank you, Your Honor.
14 BY MR. NELSON:
15 Q Now, were you told that in order to acquire the
16 benefit of your cooperation, in other words, in order to
17 be in the position to be a cooperating witness and
18 eventually have the letter written to the Judge by
19 Mr. White, one of the requirements were going to be, you
20 were going to have to plead guilty; is that right?
21 A That's correct.
22 Q This first meeting you had with the government, that
23 was on April 18, 1995; is that right? 24 A Yes, that's correct. 25 Q And you didn't actually plead guilty until November
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5894 Saffer-cross/Nelson
1 7, 1997; is that right?
2 A It was in '97. I think it was in September, though,
3 I'm not certain of that
.
4 Q Are you aware that this trial started on January 12,
5 1998?
6 A No, I wasn't aware of that. Exactly when the trial
7 started, that is.
8 Q Were you aware that the trial was supposed to start
9 in the beginning of November of 1997?
10 A Yes.
11 Q And you pled guilty literally on the eve of what was
12 the scheduled date for the trial of this case; isn't that
13 right?
14 A Yes.
15 Q And that was two years after you first met with the
16 government, right?
17 A That's correct.
18 Q I guess it took you a pretty long time to decide
19 whether or not you were going to actually enter that
20 guilty plea, didn't it, sir?
21 Yes or no?
22 A Well, could you repeat that again?
23 Q I guess it took you a pretty long time to decide 24 whether or not you were actually going to enter that 25 guilty plea; is that correct,
sir?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5895 Saffer-cross/Nelson
1 A Yes.
2 Q I want to back up here a little bit in time.
3 You told us that you started working at Who's Who
4 Worldwide in 1990; is that right?
5 A That's correct.
6 Q At the time the company was in Port Washington,
7 correct?
8 A Yes.
9 Q As I told you just before, I represent Frank Martin.
10 A I understand.
11 Q When you started working at the company, Frank wasn't
12 working there yet; is that correct?
13 A That's correct.
14 Q He came after you, correct?
15 A That's correct.
16 Q The company moved from Port Washington to Lake
17 Success in 1991; is that right?
18 A I believe at the end of 1991, yes, that's right.
19 Q And am I correct that Frank Martin didn't come to
20 work at Who's Who Worldwide until shortly aft
er the
21 company moved to Lake Success?
22 A That's correct.
23 Q Now, I believe yesterday you mentioned something 24 about using a computer list to call customers, that you 25 did that on, I believe you testified, on one occasion?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5896 Saffer-cross/Nelson
1 A Yes.
2 Q I believe it was your testimony that that occurred
3 while the company was in Port Washington; is that correct?
4 A That's correct.
5 Q So that occurred in a point of time that Frank Martin
6 was not working for Who's Who Worldwide; is that correct?
7 A That's correct.
8 Q And in your five years of employment at Who's Who
9 Worldwide, that was the only occasion where you recall
10 using a computer printout; is that correct?
11 A That is not correct.
12 Q How many times had you used a computer printout for
13 customers?
14 A Could you repeat that, please?
15 Q The only time that you were provided with a computer
16 printout for the purpose of calling customers was when you
17 were in Port Washington; is that correct?
18 A That's not correct.
19 Q Now, am I correct that when Frank Martin came to work
20 at the company initially, he didn't come in as a sales
21 manager, he came in as a salesman just as you are?
22 A I don't recall that. I looked to Mr. Martin as the
23 manager. 24 Q Do you recall a few months after he started working 25 in the Lake Success office, he became a sales manager,
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5897 Saffer-cross/Nelson
1 then I believe a group leader?
2 A Yes.
3 Q Let me back up for one moment.
4 I had asked you a question just before about the
5 use of the lists, and you indicated
that there were other
6 times where computer lists were provided to you after
7 being in Port Washington; is that correct?
8 A That's correct.
9 Q Am I correct that the other times that you were
10 provided with these lists, those lists were lists of
11 people who were already members of Who's Who Worldwide and
12 it was for either upgrades or renewals of memberships?
13 A Not correct.
14 Q When Frank Martin worked at Who's Who Worldwide with
15 you initially --
16 A Can you go back to the previous question before?
17 Q Sure.
18 A Repeat the question, please.
19 Q The question I had asked you, you testified
20 previously that one time in 1990, while in Port
21 Washington, you had been given computerized lists of
22 people to call?
23 A Nonmembers, that's correct. 24 Q At a later point in time am I correct that any 25 computer lists
that you were provided were lists of people
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5898 Saffer-cross/Nelson
1 who either were former members of Who's Who Worldwide who
2 are now eligible for renewals or people who were eligible
3 for upgrades? I think that's the question you were asking
4 to go back to.
5 A Yes, I used lists of members for upgrades. I did.
6 And also other lists to sell, similar to the lists that
7 were used in 1991 at or in 1990 at Port Washington.
8 Q And that was used for purposes of renewal of
9 customers?
10 A Not renewals, to sell. That's why I mentioned it.
11 Q Now, am I correct that Mr. Martin worked for Who's
12 Who Worldwide from 1991 to 1992 and then he left the
13 company?
14 A That's correct, approximately.
15 Q And during that period of time from 1991 to 1992, you
16 had been working at the co
mpany for about two years before
17 he even came on board; is that right?
18 A That's correct.
19 Q So he was a lot more -- you were a lot more senior
20 than he in the sales department, so to speak, is that
21 right, at least in Who's Who Worldwide?
22 A As far as attendance is concerned, yes.
23 Q Am I correct that in addition to Frank Martin, there 24 were a number of other group leaders who were working at 25 Who's Who Worldwide in '91 and '92?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5899 Saffer-cross/Nelson
1 A That's -- other group leaders. I don't recall it
2 just being one group leader in Port Washington.
3 Q And who was that?
4 A There was a girl by the name of Blanch Brody, or
5 Blanch Brown, one or two names but it's the same person.
6 Q When the company moved from Port Washington to Lake
7 Success, the company sta
rted to expand and there were more
8 group leaders who came in?
9 A That's correct.
10 Q Am I correct during the five-year period of time you
11 were employed at Who's Who Worldwide, there were a fair
12 number of group leaders that both came and went from the
13 company? There was a turnover of people who were group
14 leaders?
15 A Yes, there was.
16 Q There was a group leader by the name of Ed Shaeffer
17 and a James White?
18 A Yes.
19 Q Tom Randall?
20 A Yes.
21 Q Mike Powers?
22 A Yes, there was a Mike Powers there.
23 Q Could you tell us the names of some of the other 24 people who you remember were group leaders during that 25 five-year period of time that you were employed at Who's
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5900 Saffer-cross/Nelson
1 Who?
2 A Tara Green. Another group
leader was Walsh, Tina.
3 Q W-A-L-S-H?
4 A Yes. Tina, T-I-N-A.
5 Another group leader, his last name is Beck,
6 B-E-C-K, I don't recall his first name.
7 I mentioned Tara Green, of course.
8 That's all that comes to my mind right now.
9 Q Would I be correct that while those are the names of
10 the people you recollect right now, there were a fair
11 number of group leaders who came and went during that
12 five-year period of time?
13 A Yes, that's correct.
14 Q Would it maybe be twice the number of people you had
15 mentioned so far?
16 A I would say that.
17 Q Three times, possibly?
18 A Might be stretching a little bit but it could be.
19 Q At least two times?
20 A Yes.
21 Q Am I correct, other than Frank Martin and Tara Green
22 sitting here, none of the other group leaders who worked
23 at Who's Who Worldwide during th
e five-year period of time 24 who worked there are in this courtroom today? 25 A That's correct.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5901 Saffer-cross/Nelson
1 Q Basically only the group leader -- the only group
2 leaders here on trial are the ones who had happened to be
3 working at Who's Who Worldwide on the day that the search
4 warrant was executed on March 30, 1995; is that right?
5 A Better repeat that question again.
6 Q Basically the people who are on trial here today, the
7 group leaders, are the people who were the group leaders
8 that were working in Who's Who Worldwide on the date the
9 search warrant was executed, right?
10 A Correct.
11 Q Now, as of the time that Frank Martin became a group
12 leader, you told us you would have been a salesperson for
13 two years or close to two years at Who's Who Worldwide; is
14 that right?
15 A Yes.
16 Q And before that you had been a salesperson at West;
17 is that right?
18 A That's correct.
19 Q And that was for about five months I believe you
20 testified?
21 A That's correct.
22 Q Now, Frank Martin never worked at the Steve West
23 Company; is that right? 24 A Not while I was there, no. 25 Q Would I be correct that since Mr. Martin came into
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5902 Saffer-cross/Nelson
1 the company after you and you had been in the sales
2 business for some period of time before him, he hadn't
3 trained you when you came to work at Who's Who Worldwide;
4 is that right?
5 A That's correct.
6 Q And would I be correct that Frank Martin was
7 primarily responsible for supervising the new sales
8 personnel?
9 A That's correct.
10 Q And am I correct that just as there was a pretty big
11 turnover in the group leaders at Who's Who Worldwide,
12 there was likewise a fairly large turnover in the
13 salespersons, particularly the newer salespersons?
14 A That's correct.
15 Q And the large part of Frank Martin's job consisted of
16 teaching the new salesperson to follow the presentations;
17 is that correct?
18 A That's correct.
19 Q He would teach them to go through the presentation,
20 to follow the presentation, and he would walk up and down
21 the aisles sort of making sure they were following the
22 presentation; is that right?
23 A That's correct. 24 Q And that was the sales presentation that had been 25 provided by Bruce Gordon; is that right?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5903 Saffer-cross/Nelson
1 A That's correct.
2 Q And the
group leaders spent a lot of their time
3 making sure that the new people were sticking to the
4 presentation; is that right?
5 A That's correct.
6 Q And the group leaders would also hand out the cards,
7 the lead cards that had been given to them from the
8 administration department; is that correct?
9 A That's correct.
10 Q And you had nothing to do with the initial receipt of
11 the lead cards from the mail. You didn't go through the
12 mail and go through the lead cards; is that correct?
13 A That's correct.
14 Q And the group leaders, they had nothing to do with
15 that either. That was an administration department
16 function; is that correct?
17 A I wouldn't know that.
18 Q Well, to your knowledge, the lead cards were reviewed
19 by the administration department in the conference room
20 before they were given to the group leaders; isn't that
21 right?
22 A I couldn't really address that. I don't know.
23 Q So -- 24 A The group leaders gave me the cards. 25 Q So correct me if I don't understand. In your five
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5904 Saffer-cross/Nelson
1 years of working at Who's Who Worldwide, you didn't know
2 and you weren't aware of what procedures were followed by
3 the company from the time the lead cards arrived or the
4 nomination cards arrived and their transfer from whomever
5 to the group leaders?
6 A That's correct.
7 Q And in essence your function began when the group
8 leaders gave you cards in the morning; is that right?
9 A That's correct.
10 Q And in the entire five years you worked there it was
11 sort of a mystery as to where and how and in what manner
12 these cards were accumulated and sorted out; is that
13 correct?
14 A That's correct.
15 Q Were you aware of a woman by the name of Liz Sautter
16 as an employee of Who's Who Worldwide?
17 A I was aware of a girl named Liz. I don't recall her
18 last name.
19 Q She was there even before you started there; isn't
20 that right?
21 A There was a Liz there, yes.
22 Q Did you have any dealings with her in the five years
23 you were there? 24 A When you say "dealings," what do you mean by 25 "dealings"?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5905 Saffer-cross/Nelson
1 Q Did you work with her in any capacity?
2 A Not directly with her.
3 Q Did she have an office at Lake Success?
4 A No. She -- I'm sorry, Lake Success.
5 Q Lake Success?
6 A Sorry.
7 Q It's not a trick question. Lake Success.
8 A She worked in the administration office. I don't
9 know if she had her own office within there, I don't
10 know. But she worked in an administrative capacity in the
11 back office.
12 Q Did you ever go to that office?
13 A I wasn't allowed in there.
14 Q Am I correct that neither you nor any of the other
15 members of the sales staff were allowed into the
16 administration offices?
17 A Well, I wasn't, that's for sure.
18 Q And were you aware of any other members of the sales
19 staff who you worked with during the five-year period of
20 time that were allowed in there?
21 A Repeat the question again.
22 Q During the five years you worked at the company, you
23 were never permitted to go into the sales office? 24 A That's correct, I wasn't. 25 Q Were you specifically instructed by somebody that you
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5906 Saffer-cross/Nelson
1 couldn't go there?
2 A Yes, Mr. Gordon.
3 Q And did he give that instruction to other members of
4 the sales staff in your presence?
5 A I don't remember saying in my presence, directing
6 that to the sales staff or the managers, in other words.
7 He directed it to my attention. Went to sales.
8 Q He told you personally, you, Alan Saffer can't come
9 into the administration office?
10 A No.
11 Q Directing most of the sales force?
12 A Anybody in that sales force caught in that office is
13 fired, or something like that. He didn't want them in
14 there.
15 Q He didn't give it just as a directive but as a
16 forceful warning, "if you go into that office you're
17 fiFF0000;" is that correct?
18 A That's correct.
19 Q Now, after you received the lead cards and made the
20 calls to customers and you were actually able to make a
21 sale
, you filled out a form which is called an order form;
22 is that right?
23 A That's correct. 24 Q And am I correct that you took that order form or 25 those order forms were picked up at some point in time
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5907 Saffer-cross/Nelson
1 during the course of the day and brought into another
2 office?
3 A Yes.
4 Q Who picked them up?
5 A Usually the manager.
6 Q And where would they be brought?
7 A I don't know where they were brought actually.
8 Q So during the five-year period of time that you were
9 in the company, you have no idea what happened with the
10 order forms after you prepared them and then submitted
11 them to the sales office?
12 A I wouldn't have an idea. I could only assume that it
13 went to the back office.
14 Q Do you know a person by the name of Wendi
Springer
15 who worked for the company?
16 A Yes.
17 Q Were you aware of the fact that she reviewed the
18 order forms?
19 A Yes.
20 Q Were you aware of the fact that she returned order
21 forms to people when she felt that people weren't
22 qualified for membership?
23 A I'm not certain of that. 24 Q Did you have any dealings with Wendi Springer in 25 terms of your order forms, that you recall?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5908 Saffer-cross/Nelson
1 A Not that I recall.
2 Q Am I correct that Wendi Springer worked under Debra
3 Benjamin?
4 A That I wouldn't know. The chain of command I
5 wouldn't know.
6 Q So you weren't familiar in the office where Wendi
7 Springer worked either; is that correct?
8 A That's correct.
9 Q By the way, Ms. Benjamin, that's somebody who you do
10 know; is that correct?
11 A Yes.
12 Q In fact, am I correct that you introduced
13 Ms. Benjamin to Bruce Gordon leading to her employment at
14 Who's Who Worldwide; is that correct?
15 A That's correct.
16 Q Ms. Benjamin eventually ran the Public Affairs Office
17 at Who's Who Worldwide; is that correct?
18 A That's correct.
19 Q And she was responsible for bringing in a lot of the
20 additional benefits that were provided to members from
21 1992 up until the time the search warrant was executed on
22 the companies?
23 A Yes. 24 I don't know if I can answer that yes or no. I 25 wasn't aware of her duties exactly.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5909 Saffer-cross/Nelson
1 Q Were you aware that Debra Benjamin was instrumental
2 in establishing Tribute magazine?
3 A Yes.
4 Q And you had d
iscussed that with her and you were
5 aware of that; is that right?
6 A That's not totally correct. Part of that question.
7 Q Would I be fair in saying that other than your job in
8 the sales department you had little, if no knowledge of
9 what occurred in any of the other departments in Who's Who
10 Worldwide despite your employment there for over five
11 years?
12 A Yes.
13 Q And would it be fair to say that that was as a result
14 of the fact that the company's policy was to
15 compartmentalize the various different departments?
16 A Yes.
17 Q And when I say the company's policy, that's a policy
18 that was articulated to you by Bruce Gordon; is that
19 correct?
20 A That's correct.
21 Q And as a result of that, you were aware that your job
22 was to make sales, to follow the script and to attempt to
23 acquire memberships in Who's Who W
orldwide; is that right? 24 A That's correct. 25 Q And your job was not to find out what was happening
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5910 Saffer-cross/Nelson
1 in other departments in the company. That was none of
2 your business, correct?
3 A Correct.
4 Q Okay.
5 Now, am I correct that you were aware of the fact
6 that Frank Martin left Who's Who Worldwide in November of
7 1992?
8 A Yes.
9 Q And during the period of time that he was there from
10 November of 1991 to November of 1992, were you working
11 during that period of time for a large percentage of time
12 in the black room with the higher selling sales group of
13 salespeople in --
14 A In Port Washington?
15 Q This would have been in Lake Success. After you
16 first moved to Lake Success, '91 to '92.
17 A You better repeat that.
18 Q Sure.
19 It's my understanding, based upon a review of
20 documents and you might have a better recollection, but
21 during the end of 1991 the company moved from Port
22 Washington to Lake Success.
23 A Yes, that's correct. 24 Q And Frank Martin worked at the company initially from 25 late November of 1991 until mid-November of 1992; is that
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5911 Saffer-cross/Nelson
1 correct?
2 A That's correct.
3 Q And during that period of time, the period of time
4 when he was first at the company and the company was at
5 Lake Success, did you work in the black room during that
6 period of time?
7 A Yes.
8 Q Would I be correct in stating that since Mr. Martin's
9 functions during that year period of time was almost
10 predominantly to train and supervise new sales personnel,
11 you had little, if anything, to do with Mr. Martin during
12 that period of time?
13 A That's correct.
14 Q Wouldn't it be fair in stating other than possibly
15 giving you lead cards in the morning on occasion, that was
16 about the only dealings you had with him; is that right?
17 A That's correct.
18 Q Now, am I correct that after Mr. Martin left Who's
19 Who Worldwide in late 1992, you became aware that there
20 was litigation pending between Who's Who Worldwide and
21 Reed Elsevier?
22 A Yes, after.
23 MR. NELSON: Your Honor, being 12:30, I'm moving 24 into another area. This might be an appropriate area to 25 break.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5912 Saffer-cross/Nelson
1 THE COURT: Very well.
2 We'll recess until 1:30 for lunch.
3 Do not discuss the case among yourselves or
4 any
one else. Keep an open mind. Come to no conclusions.
5 We'll recess until 1:30.
6 Have a nice lunch.
7 (Jury exits.)
8 (Out of the presence of the jury.)
9 MR. WHITE: Your Honor, may we discuss one brief
10 point?
11 THE COURT: Yes.
12 MR. WHITE: We have a witness who is a customer
13 from out of town. With the Court's permission, at some
14 point when it is appropriate with the defense attorneys if
15 we can insert him with Mr. Saffer. I think I got a
16 preliminary indication yesterday that that was okay.
17 THE COURT: Well, we'll interrupt after
18 Mr. Nelson concludes his cross-examination.
19 How much longer do you have, Mr. Nelson?
20 MR. NELSON: About a half-hour, Judge.
21 If the Court wishes I'll interrupt my
22 cross-examination and allow the witness to testify and
23 then I'll continue from there. 24 THE COURT: Very well.
We'll continue at 1:30. 25 MR. NEVILLE: Your Honor, before Mr. Nelson
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5913 Saffer-cross/Nelson
1 begins his cross-examination, would you be willing to
2 instruct the jury that Mr. Saffer pleaded guilty for his
3 own reasons?
4 THE COURT: Yes.
5 MR. NEVILLE: And that the fact that he was
6 charged --
7 THE COURT: Yes, that's a personal decision not
8 binding on anybody.
9 MR. NEVILLE: Thank you.
10 THE COURT: Especially on the defendants.
11 (Luncheon recess taken.)
12 13 14 15 16 17 18 19 20 21 22
23 24 25 OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5914 Saffer-cross/Nelson
1 A F T E R N O O N S E S S I O N.
2 MR. TRABULUS: Judge, I think th
ey need another
3 30 seconds.
4 THE COURT: All right.
5 (Jury enters.)
6 THE COURT: Please be seated, members of the
7 jury. Members of the jury, before I take the next
8 witness, I want to tell you that the witness who has been
9 testifying, Alan Saffer, has pled guilty to a crime
10 arising out of another charge against him. You are
11 instructed that you are to draw no conclusions or
12 inferences of any kind about the guilt of the defendants
13 on trial from the fact that this witness pled guilty to
14 another charge. The decision of that witness to plead
15 guilty was a personal decision about his own guilt. It
16 may not be used by you in any way as evidence against the
17 defendants here on trial.
18 You may proceed.
19 MS. SCOTT: Thank you, Your Honor.
20 The government call also Fred Simmen.
21 (Continued.)
22
23
24 25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5915 Simmen-direct/Scott
1 F R E D G. S I M M E N , having been first duly sworn
2 by the Clerk of the Court, was examined and testified as
3 follows:
4 THE WITNESS: Fred G. Simmen.
5 THE COURT: How do you spell your last name?
6 THE WITNESS: S-I-M-M-E-N.
7 DIRECT EXAMINATION
8 BY MS. SCOTT:
9 Q Good afternoon, Mr. Simmen.
10 A Good afternoon.
11 Q Could you tell us where you live?
12 A I currently live in western Kentucky, Marshal County,
13 on the shores of Kentucky Lake.
14 THE COURT: You say in western Kentucky?
15 THE WITNESS: Western. About 40 miles east of
16 Paducah. If anybody heard of Paducah.
17 THE COURT: I know it well.
18 THE WITNESS: Biggest city, around 29,000
19 people.
20 BY MS. SCOTT:
21 Q Can you tel
l us a little bit about your background?
22 A Well, I was born four miles out of New York City in
23 New Jersey. 24 THE COURT: Now you're talking my language? 25 A But I ended up in a place out of my own choosing. I
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5916 Simmen-direct/Scott
1 like the clean air, lack of traffic and heavy population.
2 But I graduated from high school in Rahway, New
3 Jersey and shortly after enlisted in the United States
4 Navy in World War II. I had a 17 year-old kiddie cruise,
5 a 17 to 21 type of thing and got in the aviation type of
6 program and got in the Navy and busted out of that
7 program.
8 And I went overseas as a seaman and served in the
9 Mariana occupation.
10 I was with an amphibious group involved in the
11 invasion of Guam and stayed there most of the war.
12 Q Did you go to the school
after the war was over?
13 A Thanks to the GI Bill, I did. I went to Rutger's
14 University and got a degree in ceramic engineering.
15 Q What is ceramic engineering?
16 A Sort of like a specialized chemical engineering,
17 deals with the interactions of temperatures in a kiln
18 where things are physically changed from the raw mineral
19 to the hard, structural, useful material. And a ceramic
20 engineer is fully knowledgeable about the processes of
21 achieving taking the raw material and making a finished
22 product. And also the compositions involved, how to
23 attain physical properties by modifying the composition of 24 the materials, the proportions and things like that. 25 Q Did you practice as a ceramic engineer in the United
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5917 Simmen-direct/Scott
1 States?
2 A Yes. I've worked for
various companies in the
3 Trenton area which is the headquarters of ceramics in New
4 Jersey for about ten years and then I went to East
5 Liverpool, Ohio which is the pottery center of the United
6 States as far as making cups, saucers, plates,
7 dinnerware. I was the researcher for products for 13
8 years there.
9 I later moved to western Kentucky to take over as
10 vice-president of an organization that had just bought out
11 -- I became vice-president afterwards. I was technical
12 director of this plant in western Kentucky that had been
13 purchased by Boise Cascade which at that time they were
14 conglomerating all of these companies, they
15 deconglomerated but they wanted somebody from the inside
16 that could go out there and work for them.
17 Q Did you work in any other companies as an engineer?
18 A Later. After I moved to western Kentucky and I liked
19 it, for two years after I got that job in Mayfield,
20 Kentucky, that's in Graves County, about 30 miles where I
21 lived on the lake. I bought a place on the lake and I
22 said I'm not going to move anymore.
23 THE COURT: Sounds good. 24 A I have hickory trees, and when I lived in New Jersey 25 I had to go a couple miles to see it.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5918 Simmen-direct/Scott
1 Q Can you tell us which foreign countries you worked
2 in?
3 A Yes, Korea, Japan, Venezuela and Papua, New Guinea.
4 Q Have you ever been contacted by a company called
5 Who's Who Worldwide?
6 A Yes, I certainly was.
7 Q And can you tell us approximately when that was?
8 A Late '93 I would think. Or maybe probably the last
9 couple of months in January or really early '94.
10 Q How were you contacted by the company?
11 A As I recall I got something in the mail that
12 indicated that they had my name and would I be interested
13 in this thing or something.
14 Q Did you fill out a form and send it to the company?
15 A Yes, I did, but --
16 Q I'm showing you Government's Exhibit 43-D, as in
17 Daniel, for Identification.
18 A That's my signature, my writing, and there's other
19 notes on it that were made by somebody else.
20 Q Is that the form you filled out and sent to Who's Who
21 Worldwide?
22 A Yes.
23 MS. SCOTT: I offer Government's Exhibit 43-D. 24 THE COURT: Any objection? 25 MR. TRABULUS: No.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5919 Simmen-direct/Scott
1 THE COURT: Government's Exhibit 43-D in
2 evidence.
3 (Government's Exhibit 43-D received in evidence.)
4 BY MS. SCOTT:
5 Q Mr. Simmen, if you look
at that card can you see a
6 postmark on the front?
7 A Yes.
8 Q Can you tell us what that postmark says?
9 A Like a lot of the postmarks, it's kind of pale but it
10 looks like 16th of January 1994.
11 Q And if you look at the other side of it, in the lower
12 right-hander, do you see a code there in blue letters?
13 A Yes. It says "Executive Group WT," whatever that
14 means.
15 Q Were you contacted in other ways by the company?
16 A It's evident by the notes on here, but I received a
17 phone call from a gentleman from that company and he asked
18 me, well --
19 Q Can you tell us what happened when this man called
20 you?
21 A He asked me for some additional information because
22 this only gave a very limited amount of information and
23 said I was a consulting engineer, had my own company, FGS 24 Consulting Services, and what area of e
ngineering I was 25 in. He wanted more information.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5920 Simmen-direct/Scott
1 Q Did you give him additional information?
2 A Yes.
3 Q And what else did he ask you or tell you?
4 A Well, he asked me some detail of the type of work
5 I've done and where and I gave him a cursory synopsis of
6 that, but it really wasn't much, it was brief. He
7 indicated that that was adequate.
8 Q What did he tell you he needed the information for?
9 A Well, I don't remember him telling me outright in so
10 many words, but as I understood it, it was to determine if
11 I was worthy of becoming a member of this Who's Who and it
12 was evidently -- I asked them how they got my name and
13 they said somebody in the membership nominated you, see,
14 somebody who was familiar with your -- or nominated or
15 may
be there was another word, maybe just suggested that he
16 contact me, and he said someone familiar with your area of
17 performance. And I said, who? And he said, we can't tell
18 you that. But you can find out when you get the
19 directory, you can look him up.
20 Q What, if anything, did he tell you you would get if
21 you joined this group?
22 A I believe he mentioned a plaque and you would have
23 your name in the Who's Who directory. But he also implied 24 there would be certain values of having your name in this 25 directory because people of importance would be perusing
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5921 Simmen-direct/Scott
1 that and say hey, here's a fellow we can use to help us
2 along with our problems, something to that degree. None
3 of which appealed to me very strongly -- my interest in
4 this was all my life I heard
of Who's Who.
5 You know, they would say -- they would give
6 somebody's brief bio situation and they would say it is in
7 Who's Who. I would not go to the library but I thought
8 there were a lot of important folks in that, therefore,
9 this had a big appeal to my ego. It wasn't anything that
10 he was telling me, it was my own -- I wanted to increase
11 myself esteem or something like that or pride, which pride
12 is a basic symbol that the devil kicked out of heaven. He
13 was an angel up there but, you know.
14 Q If, in fact, your name had been taken from a mailing
15 list as opposed to selection by another member, would you
16 have agreed to join this organization?
17 A Would you repeat that? I kind of missed out on some
18 of your first words.
19 Q If, in fact, your name had been taken from a mailing
20 list rather than by nomination or selection by another
21 member, would you have agreed to join this organization?
22 A No, I would have trashed the thing as soon as I saw
23 it. But I'm usually a very careful individual. But this 24 got me at a weak point where, yeah, I finally arrived 25 here, you know. You don't want to get caught up in your
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5922 Simmen-direct/Scott
1 own self importance because you usually end up with
2 problems.
3 Q Can you tell us why you wouldn't have joined if your
4 name was taken from a mailing list?
5 A Because I get a bundle of mail this big every day
6 (indicating) and then I have to sort it. Most of it is
7 discarded and it's mailing list stuff. Sometimes I can
8 spot it because one of these goofy outfits misspells my
9 name and then they sell it to other lists and they
10 misspell it all the other way. Really the governme
nt
11 should be getting after all that junk mail. I guess this
12 is one of it.
13 MR. TRABULUS: Objection.
14 THE COURT: Strike out the statement. The jury
15 is instructed to disregard it.
16 THE WITNESS: Yes, sir.
17 BY MS. SCOTT:
18 Q Mr. Simmen, did you agree to make a purchase from the
19 company?
20 A Yes. I agreed somewheres along the lines, during a
21 phone conversation with the individual involved in this
22 company, to pay a basic amount of money for being a member
23 of the organization and along with that came the plaque 24 and I don't know what. 25 Q Do you remember how much you paid?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5923 Simmen-direct/Scott
1 A $97.
2 Q And do you remember how you paid for it?
3 A With a credit card.
4 Q How did you give your credit card number to the
5 company?
6 A By the telephone. He was there on the phone on the
7 other end. Maybe that's not smart. If I knew who he was
8 dealing with I might not.
9 MR. TRABULUS: Your Honor, move to strike.
10 THE COURT: Yes. "By phone" that answer will
11 stand. The rest of the answer is stricken. The jury is
12 instructed to disregard it.
13 THE WITNESS: Yes, sir. I'm sorry.
14 THE COURT: Just listen to the questions and
15 answer responsively, Mr. Simmen.
16 THE WITNESS: Okay.
17 BY MS. SCOTT:
18 Q Mr. Simmen, showing you Government's Exhibit 43-B, as
19 in Baker.
20 A Yes.
21 Q Do you recognize that?
22 A Yes. I have a yellow copy that came to me somewhere
23 in the mail of this. 24 Q And would you say an off-yellow copy that you 25 received in the mail?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5924 Si
mmen-direct/Scott
1 A Yes, after this transaction was completed.
2 Q And is that an invoice that commemorates the
3 transaction in which you purchased this membership from
4 Who's Who Worldwide?
5 A It's a two-year membership (perusing) and one Who's
6 Who business leaders registration.
7 Q Does that document memorialize your purchase from
8 Who's Who Worldwide?
9 A Yes.
10 MS. SCOTT: I offer 43-B, as in Baker.
11 THE COURT: Any objection?
12 MR. TRABULUS: No.
13 THE COURT: Government's Exhibit 43-B in
14 evidence.
15 (Government's Exhibit 43-B received in evidence.)
16 BY MS. SCOTT:
17 Q If you take a look at that document, can you tell us
18 the date that appears there?
19 A 9th of March of '94.
20 Q And what does that invoice show you paying for your
21 membership from Who's Who Worldwide?
22 A $97. That's
what I'm paying. Wait a minute.
23 There's a tax or something. Sales tax of $7, so it comes 24 to 104 on the bottom. 25 Q And now, Mr. Simmen, I will show you Government's
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5925 Simmen-direct/Scott
1 Exhibit 43-C, as in Charles, which is in evidence. It's
2 an order form.
3 If you take a look at the upper right-hand corner
4 of that order form do you see a name that appears there?
5 A Yes.
6 Q What is that name?
7 A Steve Walden. He said he got a 2 percent commission.
8 MS. SCOTT: Your Honor, may I publish these
9 exhibits, 43-B, C and D?
10 THE COURT: Yes.
11 BY MS. SCOTT:
12 Q Now, Mr. Simmen, did you receive a plaque from Who's
13 Who Worldwide?
14 A Yes, I did.
15 Q And did you purchase a directory from the company?
16 A That invoice shows an invoice and I
got an invoice
17 but I don't remember whether that was the transaction or
18 not that came with that. I believe so. But the two
19 things, I don't think they arrived at the same time.
20 That's what I'm a little bit foggy on.
21 Q When you received the directory, what was your
22 reaction to it?
23 MR. JENKS: Objection. 24 THE COURT: Sustained. 25 BY MS. SCOTT:
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5926 Simmen-direct/Scott
1 Q When you received the directory, what did you do with
2 it?
3 A Well, the first thing I did was try to find Mr. X,
4 the guy who brought my name forward to this company. Now,
5 there's around 1400 or 1500 pages in this thing and 40
6 names on the page. So you do a little multiplication and
7 you will see it will take a long time to peruse each
8 page. But I had in my mind numerous individual
s who I
9 worked with and knew my expertise and new how effective
10 that was. So I looked in there alphabetically and I found
11 nothing, and I got a rather dismal impression by looking
12 at that because I couldn't see any names that I was
13 familiar with or I would say I would glad to be associated
14 with this person.
15 Q Why is that?
16 A Why is that?
17 Q Yes.
18 A By this time it had dawned on me more than likely
19 this was a mailing list origin and not somebody who knew
20 me personally who put my name and that as I say has a
21 lower -- the mailing list, that is.
22 Q Did you ever use the book to contact anybody?
23 A Not once. 24 Q Did anyone ever call you that they were a member of 25 Who's Who Worldwide and they had seen your name in the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5927 Simmen-direct/Scott
1 book?
2 A Never.
3 Q Did you receive any other items from the company
4 aside from any other ones you've described?
5 A The plaque. I mentioned that of course. I got a
6 copy of a magazine that they put out, just one single
7 issue, I guess it was to see if I wanted to subscribe to
8 that too.
9 Q Did you receive any other offers?
10 A They mentioned a CD ROM which would be good if you
11 were looking up people from a specific category or
12 something like this. The CD ROMS, I understand, the
13 computers have a way of giving you quick access to
14 things. I didn't have a computer so a CD ROM would be
15 worthless to me.
16 What else?
17 That's it, I guess.
18 MS. SCOTT: Now, if I might retrieve the lead
19 card, Government's Exhibit 43-D for a moment.
20 THE COURT: Sure. The juror will give it up
21 willingly.
2
2 MS. SCOTT: Placing Government's 43-D one more
23 time in front of Mr. Simmen. 24 BY MS. SCOTT: 25 Q Mr. Simmen, if you can just take a look again at that
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5928 Simmen-direct/Scott
1 code on the lower right-hand corner.
2 A Executive Group WT?
3 Q Yes.
4 Now, I would ask you to take a look at
5 Government's Exhibit 226 which is in evidence, a
6 solicitation letter on Who's Who Worldwide letterhead.
7 Do you see several listings there that say
8 Executive Group with letters after them?
9 A Yes.
10 Q And do you see on the second line from the top of
11 that group?
12 A Executive Group WT.
13 Q Is that the same code you read off of Government's
14 Exhibit 43-D?
15 A That's correct.
16 MS. SCOTT: Your Honor, I would ask to publish
17 Government's Exhibit
226 and once again 43-D.
18 THE COURT: Very well.
19 MS. SCOTT: Thank you.
20 I have no further questions.
21 Thank you, Mr. Simmen.
22 THE COURT: Cross-examination.
23 MR. TRABULUS: Yes. 24 (Continued.) 25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5929 Simmen-cross/Trabulus
1 CROSS-EXAMINATION
2 BY MR. TRABULUS:
3 Q Good afternoon, Mr. Simmen. My name is Norman
4 Trabulus and the gentleman sitting next to me is my
5 client. I sometimes speak quickly so if I go too quickly
6 for you, let me know and I'll slow down.
7 A Go ahead, I want to get out of here.
8 Q Did you want to come here? Did you want to come
9 here?
10 A Yes. But the reason I want to get out, my daughter,
11 she works in Queens and I want to see her when she gets
12 off of work. She is a school teacher.
13 Q The govern
ment served a subpoena on you?
14 A Right.
15 Q I won't keep you too long.
16 You say when you got the book you were
17 dissatisfied?
18 A That's right.
19 Q Did you request a refund?
20 A No.
21 Q Did you call up to make a complaint and see whether
22 or not you might get a refund?
23 A No. 24 Q Do you know whether or not you would have gotten one 25 if you had done that?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5930 Simmen-cross/Trabulus
1 A I figured I made a mistake and it was my own doing
2 (indicating) and it -- and I just believed if you're dumb
3 enough to buy something like that, you deserve to have the
4 problem.
5 Q What I gather from what you told us, you weren't
6 interested in actually using your membership to contact
7 other people in the ceramic field or in the related
8 indu
stries, right?
9 A I know almost everybody in the American ceramics
10 field, in the American Ceramics Society. I've been in
11 there since 1947, going to all their conventions and
12 meetings.
13 Q Is it fair to say when you bought it you weren't
14 interested in networking; is that correct?
15 A Exactly right.
16 Q Although you didn't tell the salesman who was selling
17 you that that you weren't interested in networking, did
18 you?
19 Did you -- when you were on the phone with the
20 man who spoke with you, did you tell him "I really didn't
21 want to network"?
22 A At that time I was winding down my business
23 activity. I was of retirement age, I was over 65. 24 Q So is it fair to say, sir, that you did not tell the 25 man who was speaking to you that you were really not
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5931
Simmen-cross/Trabulus
1 interested in networking?
2 A I didn't tell him that I wasn't interested in
3 networking because I don't even use that term.
4 Q And he, in fact, went on to tell you about the
5 CD ROM?
6 A Yes.
7 Q And he didn't know that you weren't really interested
8 in networking, did he? He would have no way of knowing
9 that.
10 A I agree with you on that, yes.
11 Q And you mentioned that you know most everybody in
12 ceramics. Do you know Richard H. Bell, of Bell Ceramic?
13 A I knew Dick Bell when he had the clay mines in
14 Tennessee and then he had Bell Ceramic.
15 Q In Florida?
16 A What?
17 Q Florida?
18 A No, he had this thing in West Virginia where they
19 made pyrometric cones.
20 THE COURT: Cones, C-O-N-E-S?
21 A Little things when they melt and you put four of them
22 in a plaque and t
he first one melts down, the second one
23 is supposed to stop and third one hooks a little bit. If 24 the thing gets over-fired they all come down. Somebody 25 can look into a peep hole and tell whether your kiln is
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5932 Simmen-cross/Trabulus
1 functioning --
2 THE COURT: Good thing I'm a lawyer and not in
3 your business.
4 BY MR. TRABULUS:
5 Q Mr. Simmen, do you know a David W. Bobrek, the
6 president of Blasch Precision Ceramic?
7 A No, and I never heard of this company either.
8 Q Okay.
9 A There's a little -- there's a lot of little
10 rinky-dink outfits.
11 Q Harold G. Bouthton, chairman and CEO of JBC, Inc., do
12 you know him?
13 A No, never heard of JBC Inc., whatever the hell it is.
14 Q How about Charles W. Connex of Magneto Metric, Inc.?
15 Okay, I will no
t go through, in any event, the
16 first one you knew.
17 A Yeah, he's still alive but I think Dick Bell is
18 dead. Dick Bell flew a B-29.
19 THE COURT: And they were based in Guam, right?
20 THE WITNESS: He was based out of China.
21 BY MR. TRABULUS:
22 Q Let's say he was alive and a memeber of Who's Who
23 Worldwide, which I can represent to you that he's -- I 24 can't represent to you that he was alive. Anyway, I'll 25 represent that he became a member of Who's Who Worldwide.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 5933 Simmen-cross/Trabulus
1 Do you think if in fact you had been interested or
2 somebody else who was in ceramics who was interested in
3 networking, that would be a useful person to possibly be
4 in contact with?
5 A Having known the guy for 35 years, I don't see what I
6 was gaining by that.
7 Q Yo
u wouldn't.
8 But let's say somebody who didn't know the guy,
9 somebody who was interested in networking with other
10 people in ceramics, do you think he would have been a
11 suitable person to network with?
12 A Not really, because he was in sales. He sold
13 materials. They don't give you much -- the guy that is
14 running the materials company isn't much of a prospect for