7040 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. :March 9, 1998 11 - - - - - - - - - - - - - - X 9:45 o'clock a.m.
12 BEFORE:
13 HONORABLE ARTHUR D. SPATT, U.S.D.J. and a jury 14 APPEARANCES: 15 For the Government: ZACHARY W. CARTER 16 United States Attorney One Pierrepont Plaza 17 Brooklyn, New York 11201 By: RONALD G. WHITE, ESQ. 18 CECIL SCOTT, ESQ. Assistant U.S. Attorneys 19 For the Defendants: NORMAN T
RABULUS, ESQ. 20 For Bruce W. Gordon 170 Old Country Road, Suite 600 21 Mineola, New York 11501
22 EDWARD P. JENKS, ESQ. For Who's Who Worldwide 23 Registry, Inc. and Sterling Who's, Who, Inc. 24 332 Willis Avenue Mineola, New York 11501 25 (cont'd)
7041
1 APPEARANCES (cont'd):
2 GARY SCHOER, ESQ. For Tara Garboski 3 6800 Jericho Turnpike Syosset, New York 11791 4 ALAN M. NELSON, ESQ. 5 For Oral Frank Osman 3000 Marcus Avenue 6 Lake Success, New York 11042
7 WINSTON LEE, ESQ. For Laura Weitz 8 319 Broadway New York, New York 10007 9 MARTIN GEDULDIG, ESQ. 10 For Annette Haley 400 South Oyster Bay Road 11 Hicksville, New York 11801
12 JAMES C. NEVILLE, ESQ. For Scott Michaelson 13 225 Broadway New York, New York 10007 14 THOMAS F.X. DUNN, ESQ. 15 For Mr Shortcuts, 150 Nassau Street 16 New York, New York 10038
17 JOHN S. WALLENSTEIN, ESQ. For Martin Reffsin 18 215 Hilton Avenue Hempstead, New York 11551 19
20 Court Reporters: HARRY RAPAPORT OWEN M. WICKER 21 United States District Court Two Uniondale Avenue 22 Uniondale, New York 11553 (516) 485-6558 23 24 Proceedings recorded by mechanical stenography, transcript produced by Computer-Assisted Transcription 25
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7042
1 M O R N I N G S E S S I O N
2
3 (Whereupon, the following takes place in the
4 absence of the jury.)
5 THE COURT: Good morning.
6 MR. SCHOER: Good morning. Mr. Lee just came in
7 from the rain.
8 THE COURT: Is it raining outside?
9 Why were we supposed to be here early? Anybody
10 know?
11 MR. TRABULUS: I recall on Thursday Mr. White
12 indicated there might be some matters
he wanted to take
13 up. But ultimately I think your Honor said we should be
14 here at 9:30.
15 THE COURT: All right.
16 MR. NEVILLE: I placed before the Court my
17 proposed instruction to the jury about Scott Michaelson
18 not being here today.
19 THE COURT: You wanted me to say something about
20 it?
21 MR. NEVILLE: Yes. My client will not be here
22 today.
23 THE COURT: All right. 24 MS. SCOTT: We have a couple of matters to raise, 25 your Honor.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7043
1 First, going back to Thursday when your Honor
2 admitted that large grouping of exhibits --
3 THE COURT: I can't hear you.
4 MS. SCOTT: Okay.
5 Going back to Thursday morning when your Honor
6 admitted the large group of exhibits, the one that is too
7 lengthy to read into the record right
now. What I did is
8 wrote a summary list of those exhibits and marked it
9 Government's Exhibit 1613. On that exhibit I crossed off
10 the exhibits that were excluded by your Honor.
11 THE COURT: Okay.
12 MS. SCOTT: I was going to give that to
13 Mr. Rapaport so he can include it into the trial record.
14 THE COURT: You are offering
15 Government's Exhibit 1613, which is a list of the
16 exhibits?
17 MS. SCOTT: That's right.
18 THE COURT: Introduced?
19 MR. WHITE: Yes, which are all the exhibits your
20 Honor admitted on Thursday.
21 THE COURT: Government's Exhibit 1613 in
22 evidence.
23 (Government's Exhibit 1613 received in evidence.) 24 MS. SCOTT: I am handing it to Mr. Rapaport. 25 THE COURT: Fine.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7044
1 MS. SCOTT: I did research on the issue of
2 commercial paper. There is another issue I want to raise
3 about playing some tapes which brings up a whole host of
4 other issues, and I wonder if you wish to have us argue it
5 later when the jury is not waiting.
6 THE COURT: What is this now?
7 MS. SCOTT: I am hoping to admit a group of
8 exhibits as commercial paper, checks your Honor excluded
9 from the list of exhibits which I handed to Mr. Rapaport.
10 THE COURT: Checks from third parties?
11 MS. SCOTT: Yes.
12 THE COURT: You have law on that?
13 MS. SCOTT: Yes. Commercial paper is self
14 authenticating under the Federal Rules of Evidence 902(9).
15 In addition to that I have a case here, your
16 Honor --
17 THE COURT: Just one minute now.
18 MS. SCOTT: Yes.
19 (Whereupon, at this time there was a pause in the
20 proceedings.)
21 THE COURT: Okay.
22 MR. WHITE: In
addition to that I have a case
23 called United States against Dawson, 400 F.2d 194, in 24 which it was held by the Second Circuit that cancelled 25 checks were admissible to prove that certain payments had
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7045
1 been made.
2 Now, overlooking all of that, the reason we
3 offered the checks in the first place, the basis for
4 offering them in the first place were as business records,
5 because they were copies which were kept by the company in
6 addition to all the other documents they had to
7 commemorate each sale. So they attached the copies of the
8 checks to the invoice, the leads card and the credit card
9 slip. Like the credit card slip these copies of the
10 checks show that the payment was made. The argument we
11 make is to show that the payment was made in exactly the
12 same w
ay that the credit card slips did, and we offered
13 them as business records.
14 However, what I am offering to your Honor in
15 addition to that is this independent basis for admitting
16 the copies as commercial paper, which is
17 self-authenticating and independently admissible.
18 THE COURT: Were these checks attached to the
19 records of Who's Who Worldwide?
20 MS. SCOTT: They were. They were attached to
21 each sale. I had to go over the numbers to show you.
22 There are about three of them.
23 THE COURT: You have given me how many reasons to 24 admit it? 25 MS. SCOTT: Business records --
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7046
1 THE COURT: How many reasons do I have to knock
2 out now, business records and self-authenticating?
3 MS. SCOTT: Self-authenticating is part of the
4 analysis to admit it
as independent commercial paper.
5 Self-authenticating takes part --
6 THE COURT: I thought that you said it was a
7 separate and independent reason?
8 MS. SCOTT: If I said that I am mistaken.
9 THE COURT: I didn't say you said it. I thought
10 you said it.
11 Those are the reasons?
12 MS. SCOTT: Yes.
13 THE COURT: Anybody objecting?
14 MR. SCHOER: Yes.
15 THE COURT: Didn't you hear the very convincing
16 argument by Ms. Scott?
17 MR. SCHOER: I heard the argument by Ms. Scott.
18 My position is, Judge, that -- that these
19 documents shouldn't be admitted primarily for relevance
20 purposes, because while they may prove that a payment was
21 made, that is not the issue in this case.
22 The issue in this case is proving that those
23 checks were in the mails somehow, because that's what the 24 charge is. And they can't prove that the
checks were sent 25 in the mail without someone here to say that they were
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7047
1 sent.
2 THE COURT: That's one argument. But of course,
3 aren't they relevant insofar as they get down to the
4 basics of what mail fraud is, a scheme or device or, or
5 artifice to obtain money by false representations; isn't
6 that what mail fraud is about? Isn't this the money that
7 the government says was obtained? You say that is not
8 relevant?
9 MR. SCHOER: They can't prove that with respect
10 to those customers there were any misrepresentations.
11 THE COURT: That's another matter. But they have
12 the burden of proof. And they have the burden of proof
13 that there was, as a result of fraudulent representations,
14 money or property -- that's what the statute says, doesn't
15 it?
16 MR. SCHOER: Yes.
17 THE COURT: Money or property was obtained. This
18 is the money they say was obtained. It is a basic
19 elemental reason to be relevant.
20 I don't see that at all.
21 Insofar as whether it was mailed is another
22 matter. It is certainly relevant, Mr. Schoer. Your
23 objection on the ground of relevancy is overruled. 24 MR. SCHOER: At least with respect to one of 25 them, your Honor, I have not looked again, one of them
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7048
1 only has the front of the check and it doesn't show that
2 it was in fact negotiated. I am not sure about that.
3 That's from my perusal of the exhibits last week.
4 THE COURT: What do you say about that one check,
5 that only the front of the check is there?
6 MS. SCOTT: Your Honor, I would submit this
7 document was part of the c
ollection of documents held in
8 the records of Who's Who Worldwide. And it was part of
9 one of the documents they used to commemorate the sale.
10 Instead of having a credit card slip, they had a copy of
11 the check. They had to send the original check back to
12 the bank.
13 THE COURT: Good old Saks/Jakobetz. What a good
14 case that is. When I read that I recoiled, Mr. Schoer.
15 That's what the rule says, make it, right?
16 MR. SCHOER: Yes.
17 THE COURT: Here you have a third-party making
18 it, yet it is part of the business record. Judge Pratt,
19 he was something, I tell you. WHAT a loss to the federal
20 judiciary he was, although he wrote the Jakobetz case.
21 What else did you want to tell me, Mr. Schoer?
22 MR. SCHOER: Nothing?
23 THE COURT: Mr. Nelson? 24 MR. NELSON: Nothing. 25 THE COURT: I think you are right. The
H
ARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7049
1 objections are overruled. I think that the authenticity
2 is established if it need be, by 902(9). It is a record
3 attached on a regular basis, like the toll receipts on the
4 Triboro Bridge, a regular basis. It becomes parts of the
5 record of Who's Who Worldwide.
6 What exhibits are they?
7 MS. SCOTT: I will have to pull them together and
8 set forth the numbers clearly this afternoon.
9 THE COURT: I have no doubt that you will do
10 that, Ms. Scott.
11 What else? We have a jury that were here
12 amazingly close to the time, although one juror is from
13 Staten Island. Can you imagine that?
14 MS. SCOTT: We can make the argument later in the
15 day not to keep the jury waiting.
16 THE COURT: Good.
17 Let me look at the cautionary instruction that
18 Mr. Neville gave me.
19 That's very good, Mr. Neville. I accept it in
20 its entirety. I couldn't put a finger on it.
21 MR. NEVILLE: Thank you.
22 THE COURT: We have two requests by the jurors.
23 One juror requested for a meeting she cannot 24 miss. She wanted to leave at 4:00 o'clock on Wednesday, 25 and I will grant that.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7050
1 Another juror has some kind of medical
2 appointment at 5:00 o'clock, and wants to leave at 4:30 on
3 Thursday.
4 So, on Wednesday we are breaking at 4:00
5 o'clock. On Thursday at 4:30.
6 Let's bring in the jury.
7 (An unrelated matter is taken up by the Court.)
8 MR. WHITE: We don't need to argue. I wanted you
9 to know I left a letter brief on the bench earlier with
10 regard to the government introducing a plea allocution of
11 another individual.
12 THE COURT: Michael Maxes, M A X E S?
13 MR. WHITE: Yes. And I gave copies to defense
14 counsel.
15 THE COURT: Very well.
16 (Whereupon, the jury at this time entered the
17 courtroom.)
18 THE COURT: Good morning, members of the jury.
19 Please be seated.
20 I don't know how you did it under these
21 conditions, but you got here in amazingly early time. You
22 almost beat me here.
23 Not really. 24 But I appreciate the effort that I know you put 25 in to it to get here on time.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7051
1 A few announcements.
2 Number one, because of a request by a juror we
3 will leave at 4:00 o'clock on March 11th, this Wednesday,
4 not a week from this Wednesday.
5 On Thursday, March 12th, we will leave at 4:30.
6 And this is to accommodate the request of the ju
rors.
7 I wanted to advise you also that the defendant
8 Scott Michaelson will not be present today during the
9 trial proceedings. With the permission of the Court
10 Mr. Scott Michaelson is attending to an important personal
11 matter.
12 Mr. Michaelson's attorney, James Neville,
13 Esquire, is present to fully protect Mr. Michaelson's
14 rights and interests. You are to draw no inference
15 whatsoever from the fact that Mr. Michaelson is not here
16 for today's session. Mr. Michaelson will be back
17 tomorrow.
18 You may proceed.
19 MS. SCOTT: Thank you, your Honor.
20 The government calls John Tardera.
21 THE CLERK: Please raise your right hand.
22
23 24 25
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7052
1 J O H N E. T A R D E R A ,
2 called as a witness, having been first
3 duly sworn, was examined and testified
4 as follows:
5
6 THE CLERK: Please state your name and spell your
7 last name slowly for the record.
8 THE WITNESS: John E. Tardera, T A R D E R A.
9
10 DIRECT EXAMINATION
11 BY MS. SCOTT:
12 Q Good morning, Mr. Tardera.
13 A Good morning.
14 Q Can you tell us how you are employed?
15 A I am an attorney.
16 Q Where do you work?
17 A I work for the law firm of Whitman Breed Abbott and
18 Morgan in New York City.
19 Q What did you do for Whitman Breed Abbott and Morgan?
20 A A partner in the litigation department. I handle all
21 types of commercial litigation for the firm.
22 Q What are your responsibilities as a litigation
23 partner? 24 A We represent mostly large and small corporations. If 25 one of our clients is served with a lawsuit my initial
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7053 Tardera-direct/Scott
1 responsibility would be to review the pleading,
2 investigate the charges, see if we have any grounds to
3 dismiss the lawsuit, and either make a motion asking the
4 Court to throw it out or prepare an Answer.
5 If we have a client who wants to bring a lawsuit,
6 I would investigate the potential claims, the factual
7 bases, prepare a complaint spelling out the complaints we
8 have against the potential defendant and serve it.
9 Thereafter, I would be involved with the
10 discovery process, the exchange of documentary
11 information, deposition back and forth. I would take
12 depositions or supervise other members of my firm in
13 taking depositions.
14 Thereafter, we would prepare for trial and
15 conduct trials. In a nutshell that's what I do.
16 Q How long have you
been doing this?
17 A Since September 1983, so that's 14 and a half years.
18 Q Now, have you ever handled cases in which one company
19 sues another for trademark infringement?
20 A Yes, I have.
21 Q And how many such cases have you worked on?
22 A Three or four.
23 Q Now, are you familiar with a company called Reed 24 Elsevir? 25 A Yes, Reed Elsevir is a client of my firm.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7054 Tardera-direct/Scott
1 Q And what is the nature of Reed Elsevir's business?
2 A They publish biographical directories, the publisher
3 of biographical directories in the United States. Among
4 the publications is Who's Who in America, for example.
5 Q Does Reed Elsevir own any trademarks?
6 A Yes, they do.
7 Q What is a trademark, just for clarification?
8 A Well, the best way I can put it is tha
t it is a brand
9 name. The best example I can give is Coke is a
10 trademark. It identifies or is supposed to identify to
11 the consumer that every can of Coke comes from the same
12 source, even if the consumer doesn't know exactly where
13 that source is, the consumer should have the confidence
14 that a can of Coke is basically going to be the same high
15 quality product wherever they purchase it. That is what a
16 trademark is.
17 Q Now, what are the rights associated with a trademark?
18 A Well, if you own a trademark, if a company owns a
19 trademark, nobody else can use it.
20 For example, with Coke, no other company can
21 market a product with the name "Coke." It is exclusively
22 your name, your trademark, for your use alone.
23 Q Now, how does a company obtain the right to use a 24 particular trademark exclusively? 25 A Well, the primary way is
to use it over a long period
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7055 Tardera-direct/Scott
1 of time. That is really the basis of trademark rights,
2 use over a long period of time. And then there is also
3 the function or the possibility of registering it with the
4 United States Government.
5 Q And once a company has the right to use a particular
6 trademark, how does it enforce its right to be the
7 exclusive user of the trademark?
8 A Well, if the company has a trademark and it becomes
9 aware that another person or another company is using the
10 trademark, using that trademark, or a substantially
11 similar name, for example if someone is using Coke or
12 something substantially similar, you would initially send
13 what is called a cease and desist letter to the person who
14 is using your mark, or the company using your mark,
asking
15 them to stop using your trademark or the substantially
16 similar trademark.
17 If that doesn't work, then the next remedy is to
18 file a lawsuit.
19 Q Now, what trademarks did Reed Elsevir at the time you
20 were working with them --
21 A They owned many. The three that were prominent in my
22 work for Reed Elsevir Who's Who were in America, Who's Who
23 in the World, Who's Who in finance and the Industry, and 24 they owned others. 25 Q Are you familiar with a company called Who's Who
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7056 Tardera-direct/Scott
1 Worldwide Registry?
2 A Yes.
3 Q And how are you familiar with that company?
4 A I was involved in a lawsuit by Reed Elsevir against
5 Who's Who Worldwide Registry.
6 Q Reed Elsevir sued Who's Who Worldwide Registry?
7 A Yes.
8 Q And
when did Reed Elsevir sue Who's Who Worldwide?
9 A Sometime in 1992.
10 Q In which court did they bring a lawsuit?
11 A I believe it was this Court, on Long Island, in the
12 Eastern District of New York. I think the case initially
13 was actually in this courtroom.
14 Q Now, how did it begin -- how did Reed begin the
15 lawsuit against Who's Who Worldwide?
16 A Going back to what I said before, their lawyers
17 prepared a complaint, which is in writing, a document
18 which spells out the complaints that Reed Elsevir had
19 against Who's Who Worldwide, and requested certain relief.
20 Q What claims did Reed Elsevir assert against Who's Who
21 Worldwide in the complaint?
22 A Well, it was a complaint and an amended complaint.
23 The initial complaint had claims for trademark 24 infringement. The claims were that Who's Who Worldwide 25 Registry was using names
and selling publications using
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7057 Tardera-direct/Scott
1 titles that were substantially similar to certain of Reed
2 Elsevir's trademarks, including Who's Who in America and
3 Who's Who in the World. And then there was a subsequent
4 amended complaint that at that point added another claim
5 for false advertising. And that claim included
6 allegations that Who's Who Worldwide Registry was using
7 certain representations that weren't true that were
8 designed, we believe to cause the consumer to think that
9 their publications were connected to Reed and its books.
10 Q Now, what kind of relief did Reed Elsevir seek from
11 Who's Who Worldwide?
12 A Two kinds of relief.
13 The first was an injunction stopping Who's Who
14 Worldwide Registry from using what Reed to -- considered
15 to be th
e infringing names and titles, and to prevent
16 certain representations that we thought were improper.
17 The second type of relief was for money damages.
18 Q Did the case go to trial?
19 A Yes.
20 Q And was it tried before a jury or before a judge?
21 A Actually before a magistrate Judge, a non-jury trial.
22 Q And when was that trial?
23 A In February of 1994. 24 Q What was the result of the trial? 25 A Reed won and a judgment was entered preventing Who's
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7058 Tardera-direct/Scott
1 Who Worldwide Registry from using certain of the names and
2 titles that Reed felt were infringing on Reed's
3 trademarks. And there was also a money damages judgment
4 entered against Who's Who Worldwide and for Reed in the
5 amount of 1.6 million dollars.
6 Q Did Who's Who Worldwide appeal this j
udgment?
7 A Yes, it did.
8 Q And what role, if any, did you have in this whole
9 controversy?
10 A Well, that's when I became involved, at the appellate
11 level. My firm needed some assistance at that point, and
12 I became involved in helping put together the record on
13 appeal, which is the -- what both parties considered to be
14 the most relevant exhibits and trial testimony to bring up
15 and to show to the appellate court.
16 I also was involved in reading Who's Who
17 Worldwide's appellate brief, which was a document that
18 they gave to the Court of Appeals, asking the Court of
19 Appeals to overturn the judgment against them. And I was
20 involved in preparing a response, a written brief.
21 Q What was the position of the responsive brief?
22 A The position of the responsive brief is that the
23 Magistrate Judge who entered the judgment for Reed w
as 24 correct in all respects, and that the judgment should 25 stand, and we should collect our money damages.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7059 Tardera-direct/Scott
1 Q Now, in working on this appeal did you become
2 familiar with the record of the trial?
3 A Yes. We initially took the record of the trial and
4 condensed it down to an appellate record, and through that
5 process I became familiar with the trial record. And I
6 certainly became familiar with the record on appeal that
7 had certain aspects of the trial record in it.
8 Q Now, just going back to the trial itself, was there
9 testimony in the course of the trial concerning
10 conferences and seminars?
11 A Yes.
12 Q And can you tell us who testified about conferences
13 and seminars at the trial?
14 A Bruce Gordon.
15 Q What in substance
did Bruce Gordon say in his
16 testimony about these conferences or seminars?
17 MR. TRABULUS: Objection, your Honor.
18 I think the trial record itself, or relevant
19 portions of it have been introduced in evidence and they
20 speak for itself.
21 THE COURT: They have been introduced you say?
22 MR. TRABULUS: I believe so, that portion of it.
23 THE COURT: Sustained. 24 Q I will show you Government's Exhibit 804, which is in 25 evidence.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7060 Tardera-direct/Scott
1 (Handed to the witness.)
2 Q I would ask you to look at the testimony given on
3 February 17th, 1994, page 70.
4 A Yes.
5 Q Is this part of the testimony given by Bruce Gordon?
6 A Yes.
7 Q And can you tell us who was questioning him in this
8 part of the testimony?
9 A I can't from this pa
ge, but I do recall from the
10 record on appeal, that the questioning attorney for this
11 phase of the testimony was Mr. Tom Bailey, Reed Elsevir's
12 attorney.
13 Q Was he questioning Bruce Gordon on behalf of Reed
14 Elsevir?
15 A Yes, he was.
16 Q And just going to page 70 of that exhibit --
17 MS. SCOTT: I would ask to be able to publish the
18 exhibit to the jury.
19 THE COURT: You say it is in evidence?
20 MS. SCOTT: Yes.
21 THE COURT: Yes.
22 (Whereupon, the exhibit/exhibits were published
23 to the jury.) 24 Q I will go through the testimony starting on page 70 25 and ending at 71, the question of Bruce Gordon.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7061 Tardera-direct/Scott
1 Before we do that, I would like to also show you
2 Government's Exhibit 1614.
3 (Handed to the witness.)
4 Q Can you tell us what that is? For Identification.
5 Can you tell us what that is?
6 A It's Trial Exhibit 176.
7 Q Is that an exhibit used at this trial between Reed
8 Elsevir and Who's Who Worldwide Registry?
9 A Yes.
10 MS. SCOTT: I offer Government Exhibit 1614.
11 MR. TRABULUS: No objection.
12 THE COURT: Government's Exhibit 1614 in
13 evidence.
14 (Government's Exhibit 1614 received in evidence.)
15 Q Government's Exhibit 1614 is a brochure issued by
16 Who's Who Worldwide; is that correct?
17 A Yes.
18 Q Is that the exhibit that is then the subject of the
19 testimony that I put before you as
20 Government's Exhibit 804?
21 A Yes, it is.
22 Q The subject of the testimony discussed on page 70 and
23 page 174 of the transcript; is that correct? 24 A Yes. 25 MS. SCOTT: Your Honor, I would like to publish
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7062 Tardera-direct/Scott
1 also 1614 to the jury.
2 THE COURT: Yes.
3 (Whereupon, the exhibit/exhibits were published
4 to the jury.)
5 Q Looking back at page 70 of 804, the testimony is as
6 follows:
7 Question: Is this a photocopy of one of your
8 brochures that your company uses?
9 Answer: We do not use this brochure and have
10 not. We did use it at one time. We do not use it now and
11 haven't used it for quite a while.
12 Question: When did you have your first Who's Who
13 Worldwide seminar?
14 Answer: December -- I know the plane left the
15 conference about December 28th to Vietnam and Hong Kong.
16 Question: In 1993?
17 Answer: In 1993, right.
18 Question: And was that a relatively new -- that
19 was the first time you had offered that service; is t
hat
20 right?
21 Answer: Right, that's correct.
22 I will ask you to look at
23 Government's Exhibit 804, page 170. 24 This is also Bruce Gordon testifying. Can you 25 tell us who is questioning here?
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7063 Tardera-direct/Scott
1 THE COURT: What page is this?
2 MR. WHITE: 174.
3 MS. SCOTT: The numbering is confusing because it
4 is on February 22nd. If you go past page 183, you will
5 find page 174.
6 THE COURT: I don't have it.
7 (Handed to the Court.)
8 MR. TRABULUS: It appears as part of my Exhibit
9 811.
10 THE COURT: Let's take a look.
11 I have it as 811.
12 MS. SCOTT: Let me make it clear that I am
13 reading from 811, which is also in evidence. Page 174.
14 Q Can you tell us here who is questioning Mr. Gordon?
15 A The question h
ere were being asked by Mr. Pierce, who
16 is the attorney for Who's Who Worldwide Registry.
17 MS. SCOTT: Your Honor, I was mistaken,
18 Government Exhibit 811 is not in evidence, but it was
19 stipulated by the parties as an accurate record of the
20 proceedings. So I offer it in evidence at this time.
21 THE COURT: Any objection?
22 MR. TRABULUS: I am not exactly sure what 811
23 consists of. My copy begins with a cover page for 24 testimony in the bankruptcy proceeding and proceeds to the 25 trial in the Reed Elsevir case. There may be an error in
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7064 Tardera-direct/Scott
1 compiling it, or my copy of it. I would like to see what
2 811 is.
3 THE COURT: If you look, the one I have has two
4 first pages.
5 MR. TRABULUS: Yes, that's the error.
6 THE COURT: I think the first page
should not be
7 in there.
8 MR. TRABULUS: That's what I thought as well.
9 MR. WHITE: That's correct, your Honor. It got
10 stuck on the wrong cover page.
11 THE COURT: So put the 811 on the second cover
12 page.
13 MR. TRABULUS: With that I have no objection.
14 THE COURT: Government's Exhibit 811 in evidence
15 as revised.
16 (Government's Exhibit 811 received in evidence.)
17 Q Starting at the top of page 174.
18 Question: In the rest of the Exhibit 176, after
19 the software package, there is listed as a member benefit
20 the Who's Who Worldwide Business Seminars. Has that
21 actually occurred? Has this benefit been provided,
22 Mr. Gordon?
23 Answer: Yes. 24 Question: When did it start? 25 Answer: December 28th.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7065 Tardera-direct/Scott
1
Question: Of 1993?
2 Answer: 1993.
3 Question: And where was this first -- this was
4 the first seminar then?
5 Answer: Right.
6 Question: What was the purpose of it?
7 Answer: To orient our members on the local laws
8 in the country, to meet with officials of the country,
9 import-export. This just came out. Really in a business
10 sense more than a vacation.
11 Question: I'm sorry, I didn't hear.
12 Answer: Business more than vacation.
13 Question: Okay.
14 Now, where was this first seminar?
15 Answer: Hong Kong and Vietnam.
16 Question: This is something arranged by or on
17 behalf of Who's Who Worldwide?
18 Answer: Yes.
19 Question: Were anybody but members invited to
20 attend seminar?
21 Answer: A law group. Lawyers.
22 Question: Okay.
23 And what was the purpose of having lawyers? 24 Answer: You ge
t several groups together and it's 25 cheaper that way.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7066 Tardera-direct/Scott
1 Question: Okay.
2 But the invitation went out to the membership?
3 Answer: Yes.
4 Now, Mr. Tardera, can you tell us how this
5 testimony was relevant to the issues at trial, the issues
6 raised at the trial between Reed Elsevir and Who's Who
7 Worldwide?
8 MR. TRABULUS: Objection, your Honor.
9 THE COURT: On what ground?
10 MR. TRABULUS: It is really calling for a
11 statement of law.
12 THE COURT: No. Whether this testimony is
13 material for the jury to determine. However, this is that
14 lawyer representing one of the parties. I think he can
15 give an opinion as an expert witness, sort of; or even as
16 a lay lawyer witness as to what he thought was important
17 in the trial.
18 Overruled.
19 A In a trademark litigation, an important or critical
20 issue is whether there is a likelihood of confusion. That
21 is, whether what Who's Who Worldwide Registry was doing
22 was likely to confuse consumers into believing that the
23 publications that Who's Who Worldwide Registry was selling 24 was related to Reed Elsevir's publications. 25 Courts in deciding as to whether there is a
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7067 Tardera-direct/Scott
1 likelihood of confusion look at certain factors. One of
2 them is called the proximity or the closeness between the
3 two products.
4 The best example I can give, I guess, if there is
5 a famous trademark called brand X, and one company is
6 selling steam shovels, and another company is selling
7 butter, those two products are not really closely related,
8 and there is less of a chance that there would be a
9 likelihood of confusion.
10 If the two companies are using brand X, and one
11 is selling butter and the other is selling margarine, now
12 there is a proximity or closeness of the two products to
13 make it more likely that there would be confusion.
14 This testimony was used in the appeal to show
15 that Who's Who Worldwide's products were different from
16 Reed Publications. They were ready to show that Who's Who
17 Worldwide Registry was more of a membership or service
18 organization, as opposed to a company that published
19 books.
20 Q So, if in fact Who's Who Worldwide did offer seminars
21 and conferences to its members, what would be the effect
22 on the question whether it was infringing the trademarks
23 with respect to Reed Elsevir? 24 A That would be evidence that the products were less in
25 proximity or less close to each other, or less similar, so
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7068 Tardera-direct/Scott
1 that there would be less of a likelihood of confusion.
2 That would have been one of the elements that a court
3 would have considered in deciding that there was less of a
4 likelihood or more of a likelihood of confusion.
5 THE COURT: So, what you are saying is that this
6 point would be brought up by the defense, by Who's Who
7 Worldwide, to show that there wasn't -- that the two
8 products were not similar?
9 THE WITNESS: Yes.
10 THE COURT: When you say likelihood of confusion,
11 you mean likelihood of confusion to what people? To
12 whom?
13 THE WITNESS: The consumers.
14 THE COURT: The consumers?
15 THE WITNESS: Yes.
16 THE COURT: As to the source of the product?
17 THE WITNESS
: Yes, precisely.
18 THE COURT: If one company did seminars, and the
19 other didn't, that would be a separating factor?
20 THE WITNESS: Yes.
21 MS. SCOTT: Thank you, Mr. Tardera. No further
22 questions.
23 THE COURT: Cross-examination. 24 25
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7069 Tardera-cross/Trabulus
1 CROSS-EXAMINATION
2 BY MR. TRABULUS:
3 Q Good morning, Mr. Tardera, I am Norman Trabulus,
4 Mr. Gordon's attorney.
5 A Good morning.
6 Q You were not present yourself during the trial of
7 this litigation; is that correct?
8 A That's correct.
9 Q Is it fair to say in the outcome of this trial
10 Magistrate Judge Jordan determined that any showing of
11 confusion that had been made was negligible? Do you
12 recall the word "negligible?"
13 A I don't recall what his dec
ision said.
14 Q Now, in terms of whether or not there is any
15 likelihood of confusion, is it not true, sir -- withdrawn.
16 Sir, do you know whether there was any evidence
17 introduced at the trial that between the date of December
18 28th, 1993, and the date that Mr. Gordon was testifying,
19 which was both February 17th, 1994, and February 22nd,
20 '94, in that gap, in the time period between the two, was
21 there any evidence introduced at the trial that that
22 particular brochure was utilized?
23 A I don't recall any such evidence. 24 Q Was there ever any evidence introduced at the trial 25 that during that time period Who's Who Worldwide was
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7070 Tardera-cross/Trabulus
1 advertising that it had already had a seminar in Vietnam
2 and Hong Kong?
3 A I don't recall any such evidence
.
4 Q The brochure you have in front of you?
5 A I don't any longer. I think it was published.
6 THE COURT: I believe juror number seven has it
7 now.
8 (Handed to the witness.)
9 Q Sir, this brochure does not make a claim that any
10 seminar or conference has already been held, does it?
11 A Let me read it.
12 (Whereupon, at this time there was a pause in the
13 proceedings.)
14 A No.
15 Q I am correct in saying that?
16 A Correct.
17 Q And it just says that seminars and conferences were
18 being planned; is that correct?
19 A That's what it says.
20 Q Was there ever any evidence introduced at the trial
21 to show that in fact no seminars or conferences were being
22 planned?
23 A Being planned or occurred? 24 Q Being planned. 25 Any evidence introduced at the trial to show that
HARRY RAPAPORT,
CSR CP CM OFFICIAL COURT REPORTER 7071 Tardera-cross/Trabulus
1 a statement in that brochure that seminars and conferences
2 were being planned, to show that it was untrue?
3 A I don't recall any.
4 Q As you sit here today, do you have any reason to
5 believe that Who's Who Worldwide had no plan to conduct
6 and attend conferences?
7 A I have no way to know one way or another.
8 Q Do you have any proof as you sit here today that
9 Who's Who Worldwide did not plan to conduct a seminar in
10 Vietnam and Hong Kong?
11 A I don't know one way or the other.
12 Q Do you, as you sit here today know for a fact as to
13 whether or not a plane did leave to take people to a
14 conference in Vietnam and Hong Kong on December 28th?
15 A Do I personally know?
16 Q Do you know?
17 A No, I don't.
18 Q Do you know for a fact as to whether or not th
e
19 benefit, that is, the opportunity to go on this seminar
20 was actually provided to members of Who's Who Worldwide?
21 A Repeat the question?
22 Q I will rephrase it.
23 Do you know as to whether or not members of Who's 24 Who Worldwide were actually offered in advance the 25 opportunity to participate in a seminar in Vietnam and
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7072 Tardera-cross/Trabulus
1 Hong Kong?
2 A I don't know whether it was actually offered or not,
3 except from this brochure.
4 Q Do you know, sir, whether during the course of the
5 trial any of the attorneys who were present thought to ask
6 Mr. Gordon how many members of Who's Who Worldwide
7 actually attended the seminar, if any?
8 A I don't recall any such testimony.
9 Q Do you recall whether or not any of the lawyers
10 during that tr
ial asked Mr. Gordon whether he knew how
11 many people, if any, attended the seminar?
12 A I don't recall one way or another.
13 Q Can you point -- withdrawn.
14 You talked about the appellate record.
15 I will show you something where I think the
16 marking is incorrect on it. We will mark it Gordon AT for
17 Identification.
18 (Handed to the witness.)
19 Q Do you recognize this as the appendix that you helped
20 prepare?
21 (Handed to the witness.)
22 A Let me see. Yes.
23 Q And that contains the portions of the testimony at 24 the trial which one or both of the parties to the appeal 25 deemed important to the appeal?
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7073 Tardera-cross/Trabulus
1 A Yes.
2 Q Do you know from looking through it, or could you
3 look through it, or if there is any testimony in th
ere if
4 anybody asked Mr. Gordon if he knew that anybody from
5 Who's Who Worldwide Registry went on the seminar that was
6 offered to them?
7 A I don't believe the testimony is in here. I believe
8 the testimony on the seminars has already been read into
9 the record.
10 Q Basically the two exhibits we have there, 804 which
11 Ms. Scott read, and 811, which she read portions of,
12 that's everything in the entire trial that related to the
13 seminars; is that correct?
14 A I don't know if it is everything in the entire
15 trial. I am fairly certain that that is everything that
16 is in the entire record on the appeal with respect to the
17 joint appendix.
18 Q Were you familiar with the record of the entire
19 trial?
20 A I am sure I read it. I am not familiar with it as I
21 sit here today.
22 Q Do you believe, sir, that anybody asked Mr.
Gordon in
23 the record of the entire trial which I have here, if you 24 wish to look through it, do you believe that anybody asked 25 him whether or not he knew if anybody from Who's Who
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7074 Tardera-cross/Trabulus
1 Worldwide went on this seminar?
2 A I don't know one way or another.
3 Q Do you think if he was asked that question and gave
4 that answers, it is something the government would have
5 introduced in the allegations of perjury against him?
6 MS. SCOTT: Objection.
7 A I don't know.
8 THE COURT: Sustained, strike out the answer.
9 Q Now, sir, whether or not Who's Who Worldwide
10 advertised conferences or seminars, that would not be
11 relevant or not to whether people would confuse the name
12 Who's Who Worldwide with the name Who's Who in the World,
13 would it?
14 A If you are just talking about the similarity of
15 names --
16 Q Would not bear on the similarity of names?
17 A Well, similarity of names is one of the factors in
18 the variety of factor as court would review to determine
19 whether there was likelihood of confusion.
20 Q The issue of whether or not -- the question of
21 whether or not Who's Who Worldwide advertised that it was
22 going to have seminars, that is not something which would
23 bear one way or another as to whether or not the names 24 were sufficiently similar as to whether it would be 25 confusing? Is that fair to say?
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7075 Tardera-cross/Trabulus
1 A It would go to whether the products were confusing to
2 the consumer.
3 Q Whether the products were similar?
4 A Yes --
5 Q Regardless of the names?
6 A Comparing the name to the other is one of the factors
7 in the likelihood of confusion test.
8 Q Now, you indicated that Reed Elsevir is the
9 preeminent publisher of biographies in the United States?
10 A Biographical directories.
11 Q I misspoke. Biographical directories.
12 In terms of the biographical directory, it is
13 preeminent in, it publishes Who's Who in America?
14 A Yes.
15 Q Including Who's Who in the east, Who's Who in the
16 South, Who's Who in the West; is that right?
17 A Yes, sir.
18 Q And is it not correct that it currently also sells a
19 CD-ROM for about $1,700 which incorporates what is in its
20 directories?
21 A I don't know that.
22 Q Is it not correct, sir, that in obtaining names for
23 people to be included in its directories other than Who's 24 Who in America, it utilizes mailing lists; do you know 25 that,
sir?
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7076 Tardera-cross/Trabulus
1 A No, I don't.
2 Q Do you know that it now has the provision where
3 people -- withdrawn.
4 Are you aware, sir, that Reed Elsevir sends
5 letters to people whose names have been obtained from
6 mailing lists for inclusion in its directories for other
7 than Who's Who in America, and advises them they are
8 nominated, sir?
9 A I don't know that.
10 Q Are you aware, sir, that right now this preeminent
11 publisher of biographical directories allows people to
12 nominate themselves to be included in their directories?
13 A I have no knowledge of that.
14 Q Sir, are you currently working on any matters for
15 Reed Elsevir relating to its biographical directories?
16 A No.
17 Q I will show you Defendant's Exhibit Z, sir.
18 (Handed
to the witness.)
19 Q Do you recognize that as also being a portion of the
20 appellate record in the trial?
21 A I see it has a number at the top that indicates it
22 probably was one of the exhibit binders. I don't
23 specifically recall it. 24 Q Do you recall in preparing the appeal, the appellate 25 papers with respect to the testimony of an individual
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7077 Tardera-cross/Trabulus
1 named Sandra Barnes, the publisher of Marquis Who's Who?
2 A I know she testified at the trial.
3 Q She was a witness on behalf of Marquis?
4 A Reed Elsevir.
5 Q Reed Elsevir?
6 A Yes.
7 Q And do you recall that she testified that Reed
8 Elsevir used mailing lists? Do you recall that from the
9 trial testimony?
10 A I don't recall that testimony.
11 Q Is it that you don't recall on
e way or the other,
12 sir?
13 A I don't recall one way or the other.
14 Q Sir, I haven't marked this as an exhibit, but do you
15 recognize this as being one of the exhibit volumes to the
16 appeal?
17 (Handed to the witness.)
18 A Yes.
19 Q Does this refresh your recollection as or not
20 Defendant's Exhibit Z in this trial was part of the record
21 on appeal in the Reed Elsevir trial?
22 A Yes, it was.
23 MR. WHITE: Can I ask Mr. Trabulus what he is 24 referring to there? 25 MR. TRABULUS: Exhibit Z.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7078 Tardera-cross/Trabulus
1 MR. WHITE: No, the book.
2 MR. TRABULUS: I am referring to Exhibit volume 2
3 to the record on appeal in the Reed Elsevir against Who's
4 Who Worldwide Registry, Inc., appeal to the Second
5 Circuit. It bears docket number 95-
7331.
6 MR. WHITE: Are you referring to a particular
7 page?
8 MR. TRABULUS: Yes, referring to page E-952.
9 MR. WHITE: Thank you.
10 Q Now, Mr. Bailey, Mr. Tom Bailey whom you mentioned
11 before, sir, he was and is a partner in your law firm; is
12 that correct?
13 A Yes, he is.
14 Q And he occupies a position senior to you, not at this
15 time, but at the time of the trial?
16 A At the time he did. Now it is hard to say.
17 Q Now, do you recall, sir, that the record on appeal in
18 the trial contained a letter from this Sandra Barnes to
19 Mr. Bailey, suggesting he should try to have the postal
20 authorities confiscate the mail of Who's Who Worldwide,
21 and I am directing --
22 MS. SCOTT: Objection.
23 THE COURT: I didn't hear the end of the 24 question. 25 MR. TRABULUS: I was going to direct him to a
HARRY R
APAPORT, CSR CP CM OFFICIAL COURT REPORTER 7079 Tardera-cross/Trabulus
1 page.
2 THE COURT: What is the basis of the objection?
3 MS. SCOTT: Characterizing the contents of the
4 letter without it even being in evidence.
5 THE COURT: Without what?
6 MS. SCOTT: Without it being in evidence.
7 THE COURT: Can I hear the question, please?
8 (The court reporter reads the pending question.)
9 THE COURT: The document you are asking the
10 witness to look at. Is that in evidence?
11 MR. TRABULUS: No, it is not.
12 THE COURT: Sustained.
13 Q Mr. Bailey --
14 A Mr. Tardera.
15 Q I am sorry, I was thinking of Mr. Bailey.
16 THE COURT: That was a terrible slip. You just
17 heard the witness say that he and Mr. Bailey are now
18 even.
19 THE WITNESS: I don't think I quite said that.
20 THE COURT: We will not let that get out.
We
21 will keep it quiet.
22 Q I have marked this page as Defendant's Exhibit AU.
23 Do you recognize it as a page that was part of 24 the record on appeal? 25 MS. SCOTT: Page number?
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7080 Tardera-cross/Trabulus
1 MR. TRABULUS: E-945.
2 A Yes, it is part of one of the exhibit binders.
3 MR. TRABULUS: I would offer the exhibit in
4 evidence.
5 THE COURT: What is the exhibit page? EU, Easy
6 Uncle?
7 MR. TRABULUS: No, AU.
8 THE COURT: Abel Uncle.
9 What is it now?
10 MR. TRABULUS: A copy of a letter from Sandra
11 Barnes to Tom Bailey.
12 MS. SCOTT: We do object to it, your Honor.
13 THE COURT: What is the date of that letter?
14 MR. TRABULUS: April 8th, 1993.
15 THE COURT: Can I see it?
16 MR. TRABULUS: Sure.
17 (Handed to the C
ourt.)
18 MR. TRABULUS: I have put back Exhibit 1416 so
19 the jury can continue seeing it.
20 THE COURT: The jury has almost concluded seeing
21 it.
22 What is the basis for the admission of this
23 document. 24 To start off with, it is hearsay, is it not? 25 MR. TRABULUS: He testified as to his
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7081 Tardera-cross/Trabulus
1 recollection of things in the record or lack of
2 recollection, and I am testing it.
3 THE COURT: Recollection?
4 MR. TRABULUS: Yes, your Honor. And also, it is
5 a business record of Reed Elsevir.
6 THE COURT: I don't know whether it is. There is
7 no foundation for that.
8 MR. TRABULUS: He had been asked about what is in
9 the appellate record and what isn't; what is important to
10 the appeal and what isn't; he testified he recalled
11 certain things and others not, I am testing it.
12 THE COURT: You are testing it by putting this
13 evidence? You better test another way.
14 MR. TRABULUS: There was an objection before on
15 the grounds that it wasn't in evidence, and I am now
16 offering it in evidence so I can ask questions about the
17 substance of it.
18 THE COURT: You got past me again, Mr. Trabulus.
19 You lost me.
20 MR. TRABULUS: This is a letter, your Honor --
21 THE COURT: You are showing that he has selective
22 recollection of the record? Is that what you are trying
23 to show? 24 MR. TRABULUS: Not necessarily. 25 THE COURT: What are you trying to show, other
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7082 Tardera-cross/Trabulus
1 than trying to get this in, what are you trying to show,
2 which you will not succeed right now.
3
MR. TRABULUS: If I will not succeed, your Honor,
4 I will not speak further in front of the jury, but I
5 think --
6 THE COURT: Very well. I am sustaining the
7 objection, and that's for AU, Abel Uncle. You can use it
8 to refresh your recollection in any other manner, of
9 course.
10 It is for identification only, AU, Abel Uncle.
11 (Defendant's Exhibit AU marked for ID.)
12 (Whereupon, at this time there was a pause in the
13 proceedings.)
14 Q Mr. Tardera, do you know what your firm's fee
15 totalled to Reed Elsevir for representing it in the
16 litigation against Who's Who Worldwide?
17 MS. SCOTT: Objection.
18 THE COURT: Overruled.
19 A No, I don't.
20 Q Was it in the seven figures or six figures?
21 A I don't know.
22 Q Did you yourself prepare time entries for it? You
23 billed on an hourly basis; is that correct?
2
4 A Yes. 25 Q What was your hourly billing rate at that time?
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7083 Tardera-cross/Trabulus
1 A At the time I worked on the appeal in 1995?
2 Q Yes.
3 A 220, about.
4 Q And do you know what the total amount of time --
5 withdrawn.
6 Do you know how many hours you put in?
7 A I don't recall.
8 Q Do you know how many attorneys worked for Whitman
9 Breed Abbott and Morgan in total on this entire litigation
10 from starting it back in 1992 through the appeal?
11 A I can't say.
12 First there are two separate firms. It started
13 with Whitman and Ransom, and there was a merger of two
14 firms into Whitman Breed Abbott and Morgan. And with that
15 caveat, to the best of my recollection, five or six.
16 Q And did that include people whose hourly billing rate
17 was higher
than yours, such as Mr. Bailey?
18 A Yes.
19 Q Was there anyone else whose hourly billing rate was
20 higher than yours?
21 A I don't know. I don't think so.
22 Q Was there a Mr. Mallard involved also at one point?
23 THE COURT: How do you spell that? 24 MR. TRABULUS: M A L L A R D. 25 A He was involved with the trial, yes.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7084 Tardera-cross/Trabulus
1 Q Was his hourly billing rate -- do you know what his
2 hourly billing rate was?
3 A I don't know.
4 Q Do you know how many hours approximately Mr. Bailey
5 spent on this?
6 A No.
7 Q Do you have a best estimate as to whether the legal
8 fee was in excess of $250,000?
9 A I don't know.
10 Q Do you know the total legal fee -- withdrawn.
11 Whitman Breed Abbott also represented Reed
12 Elsevir in
the bankruptcy proceeding involving Who's Who
13 Worldwide for a certain period of time, did it not?
14 A Yes.
15 Q You yourself were involved in that, were you not?
16 A To a limited extent. I believe there was an
17 adversary proceeding and I had a limited role in that.
18 Q Do you know what Whitman Breed Abbott's legal fee
19 totalled for representing Reed Elsevir in the bankruptcy
20 proceeding?
21 A No.
22 Q Do you know, sir, what happened to the contents of --
23 withdrawn. 24 Do you know, sir, what happened to the 25 furnishings and the art work in the penthouse apartment
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7085 Tardera-cross/Trabulus
1 that Sterling had? Do you know what happened to it in the
2 bankruptcy proceedings?
3 A No.
4 Q Do you know, sir, what is happening -- what happened
5 to the
Manhasset condominium that PBI, Inc. owned?
6 A No.
7 Q Were you aware, sir, that your partner, Mr. Bailey
8 was in court just this last Friday in relation to a sale
9 of that condominium with the proceeds to go either to the
10 U.S. government or to the trustee in bankruptcy?
11 MS. SCOTT: Objection.
12 THE COURT: I assume it is to show an interest.
13 It is going far afield to do that.
14 If Mr. Bailey was in court for a proceeding on
15 Friday --
16 MR. TRABULUS: I withdraw the question, your
17 Honor.
18 THE COURT: All right.
19 MR. TRABULUS: I made a mistake.
20 Q Sir, I think you referred to the complaint in the
21 amended complaint prepared by your firm in the Reed
22 litigation?
23 A Yes. 24 Q And is it correct, sir, that nowhere in either the 25 complaint or the amended complaint -- withdrawn. Let me
HAR
RY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7086 Tardera-cross/Trabulus
1 just step back.
2 The complaint and the amended complaint set forth
3 the allegations that Reed Elsevir was putting forward as a
4 basis for claiming that it was entitled to some kind of
5 legal relief against Who's Who Worldwide; is that correct?
6 A Yes, it is.
7 THE COURT: Do you want to pull the microphone
8 closer to you?
9 THE WITNESS: I am sorry. I'll lean closer.
10 THE COURT: Which ever you prefer.
11 THE WITNESS: Okay.
12 Q I think you mentioned, sir, the amended complaint
13 included allegations of false advertising; is that
14 correct?
15 A Yes.
16 Q And those allegations related to similarity of the
17 names being used; is that correct?
18 A In part.
19 Q Sir, there was certainly -- is it correct, sir, that
20 there was no a
llegation in either the complaint, whichever
21 the, or the amended complaint, that Who's Who Worldwide
22 was falsely advertising that it was planning seminars and
23 conferences; is that correct, sir? 24 A I believe that is correct. 25 MR. TRABULUS: Your Honor, can you bear with me a
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7087 Tardera-cross/Trabulus
1 moment?
2 THE COURT: Surely.
3 (Whereupon, at this time there was a pause in the
4 proceedings.)
5 MR. TRABULUS: No further questions.
6 THE COURT: Anyone else?
7 MR. NELSON: I just have a few questions, Judge.
8
9 CROSS-EXAMINATION
10 BY MR. NELSON:
11 Q Good morning, Mr. Tardera.
12 A Good morning.
13 Q Mr. Tardera, am I correct that Thomas Bailey was the
14 trial attorney on the Reed litigation?
15 A He was one of them, yes.
16 Q And the judgment in the Reed lawsuit against Who's
17 Who Worldwide, when was that decision rendered as best as
18 you can recall?
19 A March 1994.
20 Q And I believe you testified that subsequently Who's
21 Who Worldwide perfected an appeal of the decision of the
22 magistrate judge; am I correct?
23 A Yes. 24 Q And you were assigned to the responsibility of the 25 preparation of that appeal; is that correct?
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7088 Tardera-cross/Nelson
1 A Yes.
2 Q Now, am I correct that the appeal itself was first
3 argued in 1995?
4 A I am not sure whether that is true or not. Late
5 1995, early 1996.
6 Q So that litigation was continuing and ongoing, at
7 least in the appellate level, throughout 1995; is that
8 correct?
9 A I believe that's correct.
10 Q And i
t certainly would have been ongoing in December
11 of 1994; is that correct?
12 A I am not exactly sure if the notice of appeal was
13 filed until 1995.
14 Q Are you familiar with a gentleman by the name of Mark
15 Seeley, S E E L E Y?
16 A Yes.
17 Q And what, if any, connection does he have with Reed
18 Elsevir?
19 A He was an employee of Reed Elsevir.
20 Q And is he an attorney, if you are aware?
21 A I don't know.
22 Q Are you aware that Thomas Bailey and Mark Seeley met
23 with federal agents with respect to Who's Who Worldwide in 24 December of -- in December of 1994? 25 A No, I am not.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7089 Tardera-cross/Nelson
1 MR. NELSON: Thank you.
2 I have no other questions.
3 THE COURT: Anything else?
4 Any redirect?
5 MS. SCOTT: Yes, your Honor. Bu
t I believe it is
6 time for the break.
7 THE COURT: It would be normally. But we started
8 late. If you would like to take a break, we will,
9 however.
10 MS. SCOTT: May I ask for a ten minute break.
11 THE COURT: Members of the jury, we will recess
12 for ten minutes. Please do not discuss the case and
13 please keep an open mind.
14 (Whereupon, at this time the jury leaves the
15 courtroom.)
16
17 (Whereupon, a recess is taken.)
18 (Whereupon, the jury at this time entered the
19 courtroom.)
20 THE COURT: Please be seated, members of the
21 jury.
22 You may proceed.
23 24 25
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7090 Tardera-redirect/Scott
1 REDIRECT EXAMINATION
2 BY MS. SCOTT:
3 Q Mr. Tardera, do you remember that Mr. Trabulus asked
4 you some
questions on cross-examination about the content
5 of the appellate record?
6 A Yes.
7 Q Do you remember specifically he asked you whether
8 this appellate record contains portions of the testimony
9 which the parties deemed to be important to the appeal?
10 A Yes.
11 Q And do you remember that you answered yes to that
12 question?
13 A Yes.
14 Q And did Who's Who Worldwide in its appeals brief make
15 any reference to Bruce Gordon's testimony that a seminar
16 had taken place in Vietnam sponsored by Who's Who
17 Worldwide?
18 MR. TRABULUS: Objection.
19 THE COURT: Sustained.
20 Q What if any reference was made in the appeals brief
21 to Bruce Gordon's testimony?
22 MR. TRABULUS: Objection.
23 THE COURT: Sustained. 24 MS. SCOTT: Is that to form or substance? 25 THE COURT: Substance.
HARRY RAPAPORT, CSR C
P CM OFFICIAL COURT REPORTER 7091 Tardera-redirect/Scott
1 MS. SCOTT: Thank you. No further questions.
2 THE COURT: Anything else?
3 MR. TRABULUS: No, your Honor.
4 THE COURT: You may step down.
5 THE WITNESS: Thank you.
6 (Whereupon, at this time the witness left the
7 witness stand.)
8 THE COURT: Please call your next witness.
9 MR. WHITE: Your Honor, the government calls
10 Joseph Jordan.
11 THE COURT: Raise your right hand.
12
13 J O S E P H J O R D A N ,
14 called as a witness, having been first
15 duly sworn, was examined and testified
16 as follows:
17
18 THE COURT: Please be seated. State your full
19 name and spell your last name.
20 THE WITNESS: Joseph Jordan, J O R D A N.
21 THE COURT: You may proceed.
22
23 24 25
HARRY RAPAPORT, CSR CP CM
OFFICIAL COURT REPORTER 7092 Jordan-direct/White
1 DIRECT EXAMINATION
2 BY MR. WHITE:
3 Q Can you tell us how you are employed?
4 A I am employed as a Special Agent of the Internal
5 Revenue Service Criminal Investigation Division.
6 Q Can you describe to us what the duties of an IRS
7 Special Agent are.
8 A We investigate criminal violations of the income tax
9 laws, the banking laws, the money laundering statutes, and
10 other various federal statutes.
11 THE COURT: Pull the microphone closer, please.
12 THE WITNESS: Sure.
13 Q Can you tell us how long you have been an IRS
14 Special Agent?
15 A Since 1986.
16 Q And are you the agent who headed the investigation of
17 the tax part of this case?
18 A Yes, I was.
19 Q Now, were you on duty on May 17th, 1995?
20 A Yes, I was.
21 Q Can you tell us what yo
u were doing on that day?
22 A That day, myself and Inspector Biegelman interviewed
23 Martin Reffsin at his office at 333 Jericho Turnpike on 24 Long Island. 25 Q Can you tell us what happened at that time?
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7093 Jordan-direct/White
1 A We spoke about various topics. We spoke about
2 Mr. Gordon's relationship with Mr. Reffsin. We spoke
3 about the start up or the genesis of Who's Who. We spoke
4 about the ownership of Who's Who. We spoke about the
5 loans to Mr. Gordon of Who's Who. We spoke about the
6 condominium at Humming Bird Road. We spoke about various
7 corporations that were involved with Who's Who. And we
8 spoke about the financial condition of Who's Who at
9 certain points of time.
10 Q Can you give us an idea approximately how long this
11 interview lasted?
12 A Appro
ximately one hour.
13 Q Now, prior to when you began asking Mr. Reffsin some
14 questions, what happened?
15 A We arrived at his offices. We identified ourselves
16 to Mr. Reffsin. And we asked him if he would be willing
17 to speak to us and be interviewed, and he agreed.
18 Q Let's take the topics you mentioned one at a time.
19 What, if anything, did Mr. Reffsin say to you
20 regarding his relationship with Mr. Gordon?
21 A Mr. Reffsin said that he began his relationship with
22 Mr. Gordon in the early 1980's, where Mr. Reffsin was the
23 accountant for a company that Mr. Gordon had which was 24 called Television Media Associates. And that Television 25 Media Associates was an advertising company, and it was a
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7094 Jordan-direct/White
1 form of a tax shelter.
2 Mr. Reffsin told us he wa
s a certified public
3 accountant. Mr. Reffsin told us that he prepared
4 Mr. Gordon's business and personal tax returns since the
5 early 1980's, except for a brief hiatus sometime around
6 1988.
7 Mr. Reffsin told us that Mr. Gordon owed the
8 Internal Revenue Service approximately three million
9 dollars, which was for income taxes and penalties, and
10 that Mr. Gordon was taking loans from the company.
11 Q You said before that Mr. Reffsin said something
12 regarding the creation of Who's Who Worldwide. What did
13 he say about that?
14 A Mr. Reffsin told us a man called Jim Canino first
15 approached Mr. Reffsin, and Canino is C A N I N O; and
16 that Mr. Canino first approached Mr. Reffsin, and
17 Mr. Canino said that he wanted to start a company called
18 Who's Who Worldwide Registry, and that Mr. Canino had
19 first incorporated the name of Who's Who
Worldwide
20 Registry.
21 Then at some point in time Mr. Reffsin introduced
22 Mr. Gordon to Mr. Canino and then Mr. Canino is no longer
23 in the picture, and Mr. Gordon was then the owner of Who's 24 Who. 25 Q What did Mr. Reffsin say, if anything regarding the
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7095 Jordan-direct/White
1 ownership or finances of Who's Who Worldwide?
2 A As far as the finances of Who's Who Worldwide,
3 Mr. Reffsin said that for the first five years of
4 operation Who's Who Worldwide had a total net profit of
5 approximately one million dollars.
6 He told us the various net profits of the company
7 for certain years.
8 Q What did he say with respect to the ownership of
9 Who's Who Worldwide?
10 A With regard to the ownership of Who's Who Worldwide,
11 Mr. Reffsin said that he was told by
Mr. Gordon on a few
12 occasions that Mr. Gordon is the owner of Who's Who. And
13 he knows the Grossmans advanced Mr. Gordon $125,000 to
14 start up Who's Who. And approximately two years into the
15 operation of Who's Who, approximately June of 1992,
16 Mr. Gordon tells Mr. Reffsin that the Grossmans own Who's
17 Who Worldwide -- own stock in Who's Who Worldwide and not
18 Mr. Gordon.
19 At some point in time then Mr. Reffsin told us
20 that Mr. Gordon had expressed concerns to Mr. Reffsin.
21 And Mr. Gordon's concerns were that Mr. Gordon had
22 testified at some legal proceeding that he was the owner
23 of 75 percent of the stock of Who's Who Worldwide. And 24 Mr. Gordon was concerned, because Mr. Gordon told 25 Mr. Reffsin that he didn't own 75 percent of Who's Who
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7096 Jordan-direct/White
1 Worldwide; that the Grossmans did. And Mr. Gordon told
2 Mr. Reffsin that he just got confused on that issue.
3 Q Did Mr. Reffsin say anything to you regarding
4 Mr. Gordon's compensation from Who's Who Worldwide?
5 A Yes. Mr. Reffsin told us for the years 1993, 1994,
6 Mr. Gordon's salary was between 100 and $150,000 a year,
7 and while Mr. Gordon was on this salary he was taking
8 substantial loans from Who's Who Worldwide.
9 Q Did Mr. Reffsin say anything else regarding these
10 loans, about loans to Mr. Gordon?
11 A Yes. Mr. Reffsin had told us that that he had
12 expressed his concerns to Mr. Gordon about these loans,
13 and Mr. Reffsin expressed the concerns that there might be
14 a problem down the road of these loans, because there were
15 little if any repayment on the loans. And Mr. Reffsin 16 said Mr. Gordon's reply to him was, I will deal with it at
17 that time. And Mr. Reffsin did not mention that
18 Mr. Gordon said he was going to repay these loans at any
19 time.
20 MR. WALLENSTEIN: Objection. Move to strike.
21 THE COURT: What portions?
22 MR. WALLENSTEIN: The question is what did
23 Mr. Reffsin say and not what he did not say. 24 THE COURT: Can I hear the question and answer? 25 (Whereupon, the court reporter reads the
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7097 Jordan-direct/White
1 requested material.)
2 MR. WALLENSTEIN: I move to strike the last
3 portion.
4 THE COURT: Yes. Motion granted. Strike it
5 out. The jury is instructed to disregard the last
6 portion.
7 THE WITNESS: In addition, when Mr. Reffsin was
8 addressing these concerns to Mr. Gordon he was saying that
9 these loans could be considered income, and that's why he
10 felt
that there is this problem.
11 Mr. Reffsin also related to us that an employee
12 of Mr. Reffsin's company, a man named Michael Hynes,
13 H Y N E S, who lives in Suffolk County expressed similar
14 concerns to Mr. Reffsin while he was working on the books
15 and records of Who's Who Worldwide.
16 MR. WALLENSTEIN: Objection.
17 MR. WHITE: Your Honor, that's Mr. Reffsin's
18 statement.
19 THE COURT: On what grounds?
20 MR. WALLENSTEIN: Mr. Jordan's statements of what
21 Mr. Reffsin said of what Mr. Hynes said. That's my
22 objection.
23 THE COURT: Overruled. 24 THE WITNESS: I will finish that answer. 25 And he even went as far as giving us Mr. Hynes'
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7098 Jordan-direct/White
1 address and telephone number.
2 Q Now, what, if anything, did Mr. Reffsin say to you
3 r
egarding the condominium at Hummingbird Road in
4 Manhasset?
5 A Mr. Reffsin told us that the condominium in Manhasset
6 was purchased sometime in 1993; that the condominium was
7 purchased for approximately $600,000, and another
8 approximately $400,000 was invested in the condominium for
9 renovations and refurbishing; that the approximate
10 $100,000 that was spent for this condominium was spent by
11 a company called Publishing Ventures, Inc. and that
12 Publishing Ventures received the money to purchase and
13 furnish the condominium from Who's Who Worldwide; that
14 Mr. Gordon moved into the Hummingbird Road condominium in
15 approximately April of 1993; that Mr. Gordon was paying a
16 rent of approximately 2,000 to $2,500 a month. And that
17 Mr. Gordon had told him that the condominium was to be
18 used primarily for business purposes, for business
19 meetings
, business conferences, for out of town Who's Who
20 members to stay at when they come into town; and also that
21 Mr. Gordon would be living there.
22 Mr. Reffsin also told us that he thought what
23 Mr. Gordon was telling him about the condominium being 24 used for business purposes was in Mr. Reffsin's words, 25 bullshit.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7099 Jordan-direct/White
1 Q Now, did Mr. Reffsin say anything else regarding the
2 payment, or expenditures made in reference to this
3 condominium?
4 A Yes.
5 Mr. Reffsin told us that Mr. Gordon -- I am
6 sorry, that Mr. Reffsin had questioned Mr. Gordon about
7 why were such large amounts of money going to Joyce
8 Grossman, the interior decorator.
9 Mr. Reffsin said that Mr. Gordon's response was
10 that Joyce Grossman is handling many of the payments to
11 the contractors, and that's why she is getting all this
12 money.
13 Q Now, did Mr. Reffsin say anything regarding other
14 corporations besides Who's Who Worldwide that were
15 affiliated with Mr. Gordon?
16 A Yes.
17 He had mentioned a company called Who's Who
18 Executive Club, which Mr. Reffsin told us printed a
19 magazine, and that company was funded by Sterling Who's
20 Who and Who's Who Worldwide; and that Registry Publishing
21 was another company which wasn't really active; that there
22 was Federated Who's Who and Summit Who's Who. He didn't
23 have too much to say about that. And Williams' Who's Who, 24 which really wasn't active. 25 Q During this meeting did you and/or Inspector
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7100 Jordan-direct/White
1 Biegelman give anything to Mr. Reffsin?
2 A Yes. We g
ave him a grand jury subpoena for
3 documents.
4 Q And after this occasion that you just described in
5 May of 1995, did you ever interview Mr. Reffsin again?
6 A Yes.
7 Myself, Inspector Biegelman and another IRS
8 Agent, his name is Kris, with a K, and his last name is
9 Tchorznizki, T C H O R Z N I Z K I.
10 Q Tell us where this interview took place?
11 A This interview took place at another one of
12 Mr. Reffsin's offices, which was at 333 North Broadway,
13 Long Island.
14 Q Tell us what happened when you arrived --
15 THE COURT: What is the date of this interview?
16 MR. WHITE: I am sorry?
17 THE COURT: What is the date of this interview?
18 THE WITNESS: I believe it is January 16th, of
19 1996.
20 MR. WHITE: Sorry if I left that out.
21 Q Can you tell us what happened when you arrived at
22 Mr. Reffsin's office?
23 A
We arrived at the offices. And then, you know, we 24 identified ourselves to Mr. Reffsin, and asked him if he 25 would be willing to speak to us regarding Who's Who
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7101 Jordan-direct/White
1 Worldwide and Mr. Gordon; and he agreed.
2 Q Did you give Mr. Reffsin anything during this
3 meeting?
4 A At the beginning of the interview we gave Mr. Reffsin 5 another grand jury subpoena for documents.
6 Q Can you tell us approximately how long this interview
7 lasted?
8 A It was less than an hour.
9 Q And tell us what subjects were discussed in this
10 interview?
11 A Again, we discussed the ownership of Who's Who
12 Worldwide. We discussed the condominium at Hummingbird
13 Road. We discussed the loans from Who's Who Worldwide to
14 Sterling Who's Who, and to Publishing Ventures, Inc. we
15 discussed the usage logs. We discussed Mr. Gordon's loans
16 from Who's Who Worldwide.
17 Q Let's start with what Mr. Reffsin said with regard to
18 the ownership of Who's Who Worldwide.
19 A Again, Mr. Reffsin told us that in the beginning he
20 was told by Mr. Gordon that Mr. Gordon was the owner of
21 Who's Who; and at some point in time, approximately two
22 years after Who's Who started business, Mr. Gordon told
23 Mr. Reffsin that he didn't own any stock in Who's Who; 24 that the Grossman family owned 20 percent of the stock in 25 Who's Who, and that Joyce Grossman personally owned 80
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7102 Jordan-direct/White
1 percent of the stock in Who's Who.
2 Q Now, what, if anything, did Mr. Reffsin say regarding
3 the condominium and the usage logs for that condominium?
4 A As far as the c
ondominium, Mr. Reffsin told us that
5 he knew that that was Mr. Gordon's residence, and that he
6 didn't know of any other place that Mr. Gordon used for a
7 residence.
8 Q And with respect to the usage logs for the condo,
9 what did he say?
10 A With regard to the usage logs, Mr. Reffsin had told
11 us that he had never seen the usage logs, didn't know what
12 was in the usage logs, didn't know who prepare the usage
13 logs, didn't have any conversations with anyone about the
14 usage logs; didn't know if the usage logs were falsified,
15 and didn't know if in fact anyone falsified the logs.
16 Then at a point later in the interview
17 Mr. Reffsin was again asked about these usage logs.
18 Then Mr. Reffsin told us at a point in time
19 Mr. Gordon had showed Mr. Reffsin the usage logs.
20 Mr. Reffsin then reviewed the usage logs when he
21 was shown them, an
d told Mr. Gordon they were totally
22 inaccurate, and didn't show anything to anybody, and
23 instruct Mr. Gordon to have them redone. And Mr. Reffsin24 says he had never seen them after they were redone. 25 Q Now, did Mr. Reffsin say anything regarding the
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7103 Jordan-direct/White
1 bankruptcy order to keep the logs?
2 A Yes. Mr. Reffsin told us that he and Mr. Gordon were
3 present in court when the attorneys for Reed asked that
4 Who's Who Worldwide be ordered to keep the usage logs; and
5 he said that the judge ordered Who's Who to keep these
6 usage logs.
7 Q What if anything did Mr. Reffsin say regarding
8 Mr. Gordon's loans from the corporation?
9 A He said that the loans Mr. Gordon was taking from the
10 corporation was used to pay Mr. Gordon's personal living
11 expenses, his Am
erican Express bill and his expenses for
12 clothing, and that these were charged to Mr. Gordon's loan
13 account.
14 He also said that he had seen or reviewed
15 Mr. Gordon's American Express bills and that they were
16 also charged to Mr. Gordon's loan account.
17 He said there were little if any repayments made
18 by Mr. Gordon on these loans; that there were no notes to
19 evidence the loans; and Who's Who Worldwide did not charge
20 Mr. Gordon any interest for these loans.
21 Q Did Mr. Reffsin say anything regarding loans from
22 Who's Who Worldwide to Sterling or Publishing Ventures?
23 A Yes. 24 Mr. Reffsin had told us that loans were made from 25 Who's Who Worldwide to both Sterling Who's Who and
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7104 Jordan-direct/White
1 Publishing Ventures sometime in 1993.
2 At first M
r. Reffsin said that there were -- that
3 notes were prepared at the time the loans were made. Then
4 Mr. Reffsin shortly thereafter said that the notes were
5 prepared at a subsequent date to the loans being made, but
6 he didn't recall the date. Then Mr. Reffsin told us that
7 he didn't learn of the existence of the notes for these
8 two loans until approximately three or four or a few
9 months prior to the bankruptcy filing of Who's Who.
10 Then Mr. Reffsin told us the first time he knew
11 of the existence of the notes was the night before Who's
12 Who Worldwide filed for bankruptcy. And the reason he
13 knew that is because Mr. Gordon told him at that time.
14 Q Did there come a time you terminated the interview?
15 A Yes. At one point in the interview Inspector
16 Biegelman told Mr. Reffsin that he didn't feel --
17 MR. TRABULUS: Objection, your Honor.
18 THE CO
URT: Sustained.
19 Q Without telling us what was said to Mr. Reffsin at
20 this point, did Mr. Reffsin say anything else?
21 A Yes.
22 MR. TRABULUS: Objection, your Honor. May we
23 approach? 24 THE COURT: All right, come up. 25
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7105 Jordan-direct/White
1 (Whereupon, at this time the following took place
2 at the sidebar.)
3 MR. TRABULUS: Your Honor, based upon the notes
4 of this interview which were prepared not by this witness,
5 but by Inspector Biegelman, but which basically track what
6 this witness has been testifying to, at this point
7 Biegelman told Reffsin that he, Reffsin, was not being
8 truthful, and suggested he retain an attorney.
9 At that point, according to Biegelman, Reffsin 10 said that he will tell everything; that he wanted
11 immunity. He
said he had had it before.
12 Biegelman then said to him, only an AUSA could
13 deal with that and he should have his attorney contact the
14 AUSA.
15 Now, although I will be asking for a limiting
16 instruction that his testimony concerning what Reffsin 17 said can't be considered against Gordon. But quite apart
18 from that the prejudicial effect of that coming out is
19 great, and I would ask it be excluded.
20 MR. WALLENSTEIN: I will join in that
21 application.
22 THE COURT: Why shouldn't it be excluded?
23 MR. WHITE: If I understand they are asking it be 24 exclude on 403 grounds. 25 THE COURT: I assume so.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7106 Jordan-direct/White
1 MR. WHITE: It is perhaps prejudicial. It is
2 certainly not unfairly prejudicial.
3 In other words, Mr. Reffsin by his request for
4 immunity, I will tell you everything if you give me
5 immunity, is clearly indicating a consciousness of guilt.
6 It is highly probative as to his state of mind. If he
7 doesn't think he did anything wrong, why does he say I
8 will tell you everything if you give me immunity?
9 THE COURT: Because I think that that is unduly
10 prejudicial. It is also part of negotiations. It may or
11 may not mean anything, and it certainly would mean
12 something to the jury. I don't know what this inference
13 is. It could be all kinds of dire consequences which I
14 will not let them speculate.
15 MR. WHITE: Ms. Scott did some research on this.
16 MS. SCOTT: I have some cases supporting our
17 position. One is United States against Levy. I can give
18 you cites.
19 MR. WALLENSTEIN: I can't hear you.
20 THE COURT: I will have to take a look at it.
21 You can't get i
nto the case now, unless you have it here
22 now and I can look at it quickly.
23 What does it say? 24 MS. SCOTT: It says in that case a person offered 25 to cooperate, plead guilty and cooperate. He did that
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7107 Jordan-direct/White
1 spontaneously, not in the context of plea negotiations.
2 And the Court found this was admissible because of the
3 fact that the parties were not involved in plea
4 negotiations at the time. So the rules governing plea
5 negotiations were not in effect. And it was probative --
6 THE COURT: What court is that?
7 MS. SCOTT: The Second Circuit, it is like
8 576 F.2d. I will have to get you the exact cite.
9 THE COURT: I will take a look at it.
10 MR. TRABULUS: In reviewing that, what preceded
11 this was not a voluntary spontaneous desire to cooperate,
12 was Biegelman telling him I think you are lying, you are
13 not being truthful. Get an attorney.
14 We suggest he was about to be charged, and that
15 brings it into the line of plea-type negotiations.
16 MR. WHITE: It doesn't. That's what this case
17 says. If you read it you will know that.
18 THE COURT: I would like to read it and I would
19 like to have defense counsel have an opportunity to read
20 it. So I will not let you go into it just yet. Okay?
21 MR. WHITE: Okay.
22 MR. WALLENSTEIN: I have a problem.
23 Some of what Agent Jordan testified to here 24 didn't actually come out during the meeting in which he 25 says it came out. Some of it was related to Agent Jordan
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7108 Jordan-direct/White
1 and Mr. White in the course of a proffer session.
2 THE COURT: If that is so why didn
't you object
3 to it?
4 Secondly, you can bring that out on
5 cross-examination and ask it be stricken.
6 MR. WALLENSTEIN: That makes it difficult. It
7 means I have to bring out the proffer sessions on cross
8 and it brings them all out on redirect. It is a kind of
9 back doorway to get into the proffer session.
10 THE COURT: You didn't object. You waived it by
11 not objecting, now I don't know what to do about it.
12 MR. WALLENSTEIN: It is one or two questions, but
13 I think Agent Jordan is confusing one or two sessions.
14 THE COURT: Why not show it to Mr. White during
15 the luncheon recess. I am sure if he agrees with you we
16 will stipulate here to remove some of it in some way.
17 MR. WHITE: Your Honor, because of the danger of
18 that I went through with Agent Jordan literally line by
19 line through the notes of the interviews to make sure that
20 the testimony at trial hewed to those inventories.
21 THE COURT: How do you spell hewed?
22 MR. WHITE: H E W.
23 THE COURT: I would rather you use that word 24 rather than the other word. 25 MR. WHITE: I believe it followed, the testimony
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7109 Jordan-direct/White
1 followed the interview line by line.
2 THE COURT: Mr. White denies it is from the
3 proffer and it is all from the interview, you can take a
4 look at that. And if you show him it is the proffer and
5 not the interview I am sure he will agree to you to work
6 it out.
7 MR. WALLENSTEIN: I am getting it secondhand
8 because I didn't represent Mr. Reffsin at the time of the
9 proffer, so it is secondhand.
10 THE COURT: You have the notes though.
11 MR. WHITE: Of course, several things were
12 repeated f
rom the interview and to the proffer.
13 THE COURT: Yes. But I believe Mr. Wallenstein
14 is alluding to things that only came out on the proffer.
15 MR. WHITE: I don't believe it is so. But if he
16 shows me I will look at it.
17 THE COURT: We will talk about law for a change
18 and then talk about the proffer, two things to look into.
19 MR. TRABULUS: Can we have a limiting instruction
20 and phrased this way, any statement made by Mr. Reffsin to
21 Mr. Jordan cannot be considered against Mr. Gordon.
22 THE COURT: Yes. They are admissions made by
23 Mr. Reffsin. 24 MR. WALLENSTEIN: I thought they were accusations 25 and not admissions.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7110 Jordan-direct/White
1
2 (Whereupon, at this time the following takes
3 place in open court.)
4 THE COURT: Members of the jury, this
testimony
5 that you are hearing, if you believe that it occurred, are
6 statements made by Mr. Reffsin. They are not offered
7 against the defendant Gordon. These are statements made
8 by the defendant Martin Reffsin.
9 Go ahead.
10 Q Now, let's leave that interview for a moment.
11 Were you on duty on March 30th, 1995?
12 A Yes, I was.
13 Q Where were you at that time?
14 A Participating in the execution of a search warrant in
15 the offices of Who's Who Worldwide at 1983 Marcus Avenue
16 in Lake Success.
17 Q Did you meet a man named Mr Shortcuts, that day?
18 A Yes, I did.
19 Q How did you meet Mr. Rubin?
20 A Myself and Inspector Biegelman arrested Mr. Rubin.
21 Q Where did you arrest Mr. Rubin?
22 A In front of his house.
23 Q Where was his house? 24 A I believe it was on John Street in Elmont. 25 Q How did you come to
travel from Who's Who's offices
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7111 Jordan-direct/White
1 to Mr. Rubin's home?
2 A Well, that day we had found out that Mr. Rubin no
3 longer worked at Who's Who Worldwide. And we asked Liz
4 Sautter, one of the employs of Who's Who Worldwide if she
5 knew Mr. Rubin's address. And she told us she didn't know
6 the street name or the particular address of the house,
7 but she knew it was in Elmont, and if we drove her there
8 she would point out the street and the house to us, and
9 she did.
10 Q Tell us what happened at Mr. Rubin's home?
11 A Ms. Sautter indicated to us that Mr. Rubin lived
12 upstairs and we went around the side, and knocked on the
13 side door and rang the bell. No one answered. We went
14 around the front of the house and spoke to a woman who
15 identified herself as
Mr. Rubin's landlady and she
16 confirmed that Mr. Rubin lived there.
17 Q What happened next?
18 A As we were leaving the landlady's house, Mr. Rubin
19 comes walking up the walkway.
20 At that point Inspector Biegelman and myself
21 identified ourselves to Mr. Rubin. We told him he was
22 under arrest for mail fraud in connection with his
23 employment at the Who's Who Worldwide; and that he didn't 24 have to say anything to us. 25 Q And did Mr. Rubin make any request to you at that
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7112 Jordan-direct/White
1 time?
2 A Yes. He said that he would like to be allowed to go
3 up to his apartment to get some documents to give to us.
4 We went up to his apartment, and he gave us a
5 small batch of documents, and we left his apartment.
6 Q Now, after you left his apartment did Mr. Rubi
n have
7 any other requests for you?
8 A Yes. Mr. Rubin asked that he be allowed to go into
9 the trunk of his car, because he wanted to get some money
10 out of the car. And we agreed.
11 While the trunk of the car was open Mr. Rubin
12 pointed to another batch of documents and said that he
13 wanted us to have these documents. And it was at this
14 point in time that Mr. Rubin said that he wanted to sue
15 Mr. Gordon, because he felt that it was Mr. Gordon's fault
16 that he had gotten arrested.
17 Q And what happened then?
18 A At that point in time we told Mr. Rubin that we were
19 going to handcuff him. And he indicated to us that he had
20 a bad shoulder, so if we can handcuff him in the front.
21 And we agreed.
22 We handcuffed him in the front. We put him in
23 the front seat of my vehicle, seat belted him in. I drove 24 and Inspector Biegelm
an was sitting in the front. 25 As soon as we got under way I heard Inspector
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7113 Jordan-direct/White
1 Biegelman give Mr. Rubin his Miranda warnings.
2 Q What, if anything, did Mr. Rubin say after that?
3 A Mr. Rubin said that he understood his rights and he
4 still wanted to talk to us.
5 Q What did Mr. Rubin say after that?
6 A I heard Mr. Rubin say that he knew that he had lied
7 to customers on the telephone when he was working at Who's
8 Who Worldwide. He said that he lied to customers by
9 telling them that the conference at Hilton Head had taken
10 place, when in fact he knew that the conference had not
11 taken place.
12 He said he lied on the phone to customers
13 regarding how long he had worked at Who's Who. He
14 indicated he worked at Who's Who about a year, but he had
15 told customers he worked there about five years.
16 He also said that he lied on the phone to
17 customers when he told them that they were nominated,
18 because he said that he knew that customers weren't
19 nominated, and that their names came off a mailing list.
20 Q Now, when you were driving in your car where did you
21 go to?
22 A We drove back to 1983 Marcus Avenue; where at that
23 time we transferred Mr. Rubin out of my vehicle and into 24 Inspector Biegelman's vehicle. 25 Q Did you see Mr. Rubin after that on that day?
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7114 Jordan-direct/White
1 A No, I did not.
2 MR. WHITE: Your Honor, with the exception of the
3 matter we discussed at the bench, I have no further
4 question.
5 THE COURT: Very well. Cross-examination.
6
7 CROSS-EXAMINATION
8 BY
MR. TRABULUS:
9 Q Good afternoon, Agent Jordan.
10 Just a few questions.
11 I think you testified that in one of these -- you
12 testified to two conversations you had with Mr. Reffsin,
13 two meetings?
14 A That's correct.
15 Q And I think you testified in the second one he told
16 you that Mr. Gordon and Mr. Reffsin were present when the
17 judge in the bankruptcy proceeding ordered that logs be
18 maintained?
19 A That's correct.
20 Q Did he also tell you that Maria Gaspar be present
21 when the judge ordered that the logs be maintained?
22 A He did not mention that.
23 Q Before coming here today, Mr. Jordan, did you review 24 notes taken at this meeting by Mr. Biegelman? 25 A Yes, I did.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7115 Jordan-cross/Trabulus
1 Q You yourself did not take any notes of th
e meeting;
2 is that correct?
3 A That is correct.
4 Q And Biegelman took the notes; is that fair to say,
5 sir?
6 A That's correct.
7 Q And was Biegelman the one who did most of the
8 questioning?
9 A That's true, yes.
10 Q And that's true for both meetings, sir?
11 A Yes, that's true.
12 Q And it was Biegelman rather than you who took the
13 notes at the meetings, both meetings?
14 A That's correct.
15 Q And I have not marked this as an exhibit, but do you
16 recognize this as the notes of the interview of
17 Mr. Reffsin in which you and Biegelman and another agent
18 were present on January 19th, 1996?
19 (Handed to the witness.)
20 A Yes, I do.
21 Q These are the notes taken by Biegelman in his
22 handwriting?
23 A Yes. 24 Q And I will direct you to this portion here. 25 Does that refresh your
recollection that
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7116 Jordan-cross/Trabulus
1 Mr. Reffsin told you that Gaspar was also present when
2 Judge Jordan -- excuse me, when the bankruptcy judge
3 ordered the logs to be maintained?
4 MR. WHITE: What page are you referring to?
5 MR. TRABULUS: 3.
6 A Yes, it does.
7 Q So he didn't just say that he, Mr. Reffsin and
8 Mr. Gordon was present, but he also said Gaspar was
9 present at that point when the logs were ordeFF0000; is that
10 right, sir?
11 A That's correct.
12 Q In that sense your recollection was refreshed by
13 Inspector Biegelman's notes; is that correct?
14 A Yes.
15 Q And is it fair to say in general your recollection of
16 these meetings were substantially refreshed by Inspector
17 Biegelman's notes?
18 A Refreshed by the notes, yes.
19 Q Is it fair to say quite a few things you didn't
20 remember until you saw them in Inspector Biegelman's
21 notes?
22 A There were some things I did not remember, yes.
23 Q And is it fair to say that there was nothing that you 24 did remember that was not in Inspector Biegelman's notes? 25 A That's correct.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7117 Jordan-cross/Trabulus
1 Q I think you testified that Mr. Reffsin told you that
2 Mr. Gordon lived at 200 Hummingbird?
3 A To the best of my recollection.
4 Q That that's his residence he said?
5 A To the best of my recollection.
6 Q That he didn't know of any other residence?
7 A That's correct.
8 Q And he reached him at night there; is that fair to
9 say?
10 A Yes.
11 Q He didn't say he reached him at night at any
12 penthouse in the City, did he?
13 A No, he did not.
14 Q He didn't say he knew of a penthouse in the City of
15 being another residence, did he?
16 A I don't recall him mentioning that.
17 Q Sir, you said at the first meeting Mr. Reffsin told
18 you it was sometime in June of 1992, I think you said that
19 he learned from Mr. Gordon that the Grossmans were the
20 real owners of Who's Who Worldwide?
21 A That's correct.
22 Q I will show you again -- these are not marked as an
23 exhibit, but do you recognize these as being Inspector 24 Biegelman's notes of the first of the two interviews, the 25 one on May 17th, 1995.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7118 Jordan-cross/Trabulus
1 (Handed to the witness.)
2 A Yes, I do.
3 Q And I would like to refresh your recollection to the
4 second page of Inspector Biegelman's notes, does this
5 refresh your recollection that Mr. Reffsin told you it was
6 in 1991 that he learned that the Grossmans were the real
7 owners?
8 A No.
9 Can I tell you what my recollection is?
10 Q The question can be answered yes or no.
11 A I can't answer it yes or no.
12 Q Is it correct, sir, that Inspector Biegelman noted it
13 down as 1991 he learned that the Grossmans were the real
14 owners?
15 A Yes.
16 Q Agent Jordan, on December 21st, 1994, did there come
17 a point on that day that you had a meeting with Inspector
18 Biegelman and some representatives Reed Elsevir and their
19 attorneys?
20 A Can you give me the date once more, sir?
21 Q December 21st, 1994.
22 A Yes, I did.
23 Q And that was with Tom Bailey? 24 A I remember Mr. Bailey. 25 Q He was an attorney from Whitman Breed, whatever the
HARRY RAPAPORT, CSR
CP CM OFFICIAL COURT REPORTER 7119 Jordan-cross/Trabulus
1 name of that firm is?
2 A I believe so.
3 Q And they represented Reed Elsevir?
4 A I believe so.
5 Q Also present was a Mark Seeley?
6 A I don't recall the other gentleman's name, but I
7 recall there was another gentleman there.
8 Q He was actually an employee of Reed Elsevir; is that
9 correct?
10 A I don't know that.
11 Q Was that the first such meeting you ever had with
12 Mr. Bailey?
13 A Yes.
14 Q Was that the last such meeting you ever had with
15 Mr. Bailey?
16 A I believe I had met with Mr. Bailey one more time
17 after that.
18 Q And was Inspector Biegelman also present at that
19 second meeting?
20 A To the best of my recollection, no.
21 Q Do you know whether Inspector Biegelman had any
22 meetings with Mr. Bailey that you we
re not present at?
23 A I don't know. 24 Q Did you meet with Mr. Seeley, or we will call him the 25 gentleman with Mr. Bailey at the first meeting? Did you
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7120 Jordan-cross/Trabulus
1 ever meet with him again?
2 THE COURT: You have to slow down, Mr. Trabulus.
3 MR. TRABULUS: Sorry.
4 THE COURT: Do that again.
5 Q The meeting you had with Mr. Bailey and the gentleman
6 from Reed, was that the only meeting you had with that
7 gentleman from Reed?
8 A I don't recall either way the second gentleman being
9 at another meeting.
10 Q Do you know if Inspector Biegelman ever met with that
11 other gentleman?
12 A I don't know.
13 Q Do you know if Inspector Biegelman met with any other
14 attorney aside from Mr. Bailey --
15 A I don't know.
16 Q Do you know if In
spector Biegelman met with any other
17 employee of Reed other than that gentleman who was present
18 with Mr. Bailey?
19 A I don't know.
20 Q Now, in meeting with Mr. Bailey, was there any
21 discussion as to the proceedings in bankruptcy against
22 Who's Who Worldwide at the first meeting?
23 A I don't recall that much discussion about the 24 bankruptcy. 25 Q Was there any discussion that just on the very next
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7121 Jordan-cross/Trabulus
1 day Reed was going to be seeking the appointment of a
2 trustee for Who's Who?
3 MR. WHITE: Objection. The whole area is beyond
4 the scope --
5 THE COURT: Sustained.
6 THE COURT: Beyond what?
7 MR. WHITE: Beyond the scope of the direct.
8 THE COURT: On that ground overruled.
9 MR. WHITE: What was the other ground for which
10 it was sustained?
11 THE COURT: Proceed. I was about to say
12 something but I am not going to.
13 A Can you ask the question again, please?
14 Q I think the question was at the first meeting of
15 Mr. Bailey and the other gentleman, was there any
16 discussion that Reed was about to consider the appointment
17 of a trustee?
18 A I can't recall, sir.
19 Q Was there any discussion made by Mr. Bailey that the
20 postal inspectors seized the mail of Who's Who Worldwide?
21 A Not that I remember.
22 Q Was Mr. Bailey and the gentleman with him, were they
23 urging the postal inspectors to take action against Who's 24 Who Worldwide? 25 A Not that I recall, sir.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7122 Jordan-cross/Trabulus
1 Q Do you know who set up the meeting, who requested it?
2 A No, I don't.
3 Q Do you know if they requested it as opposed to
4 Inspector Biegelman?
5 A I don't know.
6 Q Did they ask -- withdrawn.
7 At any time during the course of that meeting,
8 was there any discussion with them concerning criminal
9 charges to be brought against Who's Who Worldwide or
10 Mr. Gordon, or anybody else?
11 A Not that I recall.
12 Q Was there any discussion during that meeting
13 concerning whether or not the word -- the use of the word
14 "nominate" by Who's Who Worldwide was appropriate or
15 inappropriate?
16 A I don't recall that.
17 Q Did they gave you documents during that meeting?
18 A I remember receiving either a one or a two-page
19 document with some information about tax issues.
20 Q From Mr. Bailey?
21 A That's correct.
22 Q Tax issues of Mr. Gordon or Who's Who Worldwide?
23 A Of Mr. Gordon. 24 Q
Mr. Gordon had material relating to Mr. Gordon's tax 25 issues?
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7123 Jordan-cross/Trabulus
1 A Yes.
2 Q Now, did Mr. Bailey tell you he was involved in any
3 tax issues of Mr. Gordon?
4 A No, he did not.
5 Q Did he explain how he came into possession of
6 materials relating to Mr. Gordon's personal affairs?
7 A Did he explain to me how he got the information? I
8 don't recall if he did. I can tell you what he gave me,
9 what it said.
10 Q I didn't ask you that.
11 Were you present throughout the entire portion of
12 the meeting or did you leave at any time when
13 Mr. Biegelman was speaking to him?
14 A I believe I left for a period to attend to making a
15 telephone call.
16 Q So there was a portion of the meeting that did not
17 concern you; is that fair to say
?
18 A No.
19 Q Do you know if tax issues -- issues other than tax
20 issues discussed with Mr. Bailey and other people?
21 A In my presence or absence?
22 Q Your presence first.
23 A Ask it again. 24 Q When you were there did Mr. Bailey discuss anything 25 other than tax issues?
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7124 Jordan-cross/Trabulus
1 A Not that I can recall.
2 Q Do you know whether when you left, the understanding
3 was that there were going to be other issues that were to
4 be discussed that didn't involve taxes?
5 A I don't have an understanding either way.
6 Q When you left did you understand that there were
7 things to be discussed at that point that you didn't need
8 to be present for?
9 A No. I had to make phone calls.
10 Q The phone calls related to the Who's Who Worldwide
11 investigation you were conducting at that point, or the
12 tax investigation?
13 A No.
14 Q You were involved in the tax aspect of this
15 investigation; is that fair to say?
16 A That's correct.
17 Q And you were not involved in planning out --
18 withdrawn.
19 You were involved only, or at most, as an
20 observer in the so-called mail fraud portion of the
21 investigation; is that correct?
22 A I wouldn't characterize it that way; so I can't
23 answer your question. 24 (Mr. Trabulus confers with Mr. Gordon.) 25 Q During the course of the tax aspect of the
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7125 Jordan-cross/Trabulus
1 investigation, did you have occasion to gather the various
2 tax returns, the filings that had been said to have been
3 made by or on behalf of Mr. Gordon?
4 A You are referrin
g to tax returns?
5 Q And the Form 430As?
6 A Yes.
7 Q And you have been here throughout the entire trial,
8 have you not, sir?
9 A Yes.
10 Q And there are some forms 430-A or 433-As in evidence;
11 is that correct, sir?
12 A Yes.
13 Q And they are information collection statements?
14 A Whatever the forms are, yes.
15 Q And we had a couple of them blown up real big; do you
16 recall that?
17 A Yes.
18 Q They had places for necessary living expenses; do you
19 recall that, sir?
20 A Yes.
21 Q And during the course of your investigation did you
22 ever come to look for the instructions that the IRS
23 prepares as to how to prepare collection information 24 statements? 25 A No.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7126 Jordan-cross/Trabulus
1 Q Did it occur to you,
sir, that in interpreting the
2 answers on a collection information statement, that it
3 might be useful to look at the instructions that were
4 given to the person who prepared it?
5 A Ask me the question again, please.
6 Q Did you think in interpreting whether or not a
7 collection information statement was filled out properly,
8 that it might be useful to look at the IRS's own
9 instructions as to what was supposed to be on it?
10 A I didn't find it necessary.
11 Q Agent Jordan I will show you AV,
12 Defendant's Exhibit AV for Identification.
13 (Handed to the witness.)
14 Q Have you ever seen that form before?
15 A No.
16 Q Can you tell by looking at it whether or not it is
17 the IRS's instructions for how to prepare collection
18 information statements as they were in June of 1991?
19 A I could read what it says, but I can't be certain.
20 Q Are you familiar with that little printed logo that
21 appears down there?
22 A I have seen that logo before, yes.
23 Q Is that the logo that the information puts on 24 publications that it makes? 25 A Yes.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7127 Jordan-cross/Trabulus
1 Q Next to it, is it an indication as to when it was
2 last revised?
3 A Yes, it is.
4 Q And all the way in the lower right-hand corner, is
5 there another date, which is the date that this particular
6 run was printed?
7 A I don't know what the date means, but I see the date.
8 (Mr. Trabulus confers with Mr. White.)
9 Q Do you know, sir, whether a collection information
10 statement is supposed to list all of somebody's expenses
11 or just their reasonable expenses?
12 A It is my understanding that all of your expenses has
1
3 to be listed on there, that you consider --
14 Q Necessary?
15 A -- that you consider a need to spend.
16 Q Do you recall the statements saying necessary living
17 expenses on them, as a heading on them?
18 A Yes.
19 Q And is it your understanding that a person who fills
20 one of them out is supposed to put expenses that are
21 aren't necessary?
22 MR. WHITE: Objection. He is asking what his
23 understanding of a firm is. 24 THE COURT: Just the word "objection is 25 sufficient.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7128 Jordan-cross/Trabulus
1 Can I hear the question, Mr. Reporter?
2 (Whereupon, the court reporter reads the
3 requested material.)
4 THE COURT: Overruled.
5 A Can I have the question again?
6 Q I will rephrase it to make it clearer.
7 We are talking about the collection info
rmation
8 statement, and we all recall without bringing the charts
9 out, that there is a place up here saying necessary living
10 expenses; is that correct?
11 A Yes.
12 Q Under there someone is supposed to list stuff?
13 A Yes.
14 Q Only to list what is necessary?
15 A They are supposed to list all their expenses.
16 Q Isn't the purpose for that to just list what they
17 need to live on?
18 A I don't know what the purpose of the form is, but I
19 know what has to be on it.
20 Q Well, isn't the form used by the IRS to determine --
21 withdrawn.
22 Well, one of the things you were investigating
23 was whether or not Mr. Gordon filed false statements? 24 A Yes. 25 Q And in the form of investigating that you didn't take
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7129 Jordan-cross/Trabulus
1 it upon
yourself to look at what the instructions for the
2 forms were; is that correct?
3 A I didn't need to look at the instructions.
4 Q Now, one of the other things that you were
5 investigating in connection with this was the offer in
6 compromise, or the offers in compromise; is that fair to
7 say?
8 A Yes.
9 Q And in doing that did you have occasion to look at
10 the instructions that the IRS prepares for offers and
11 compromise?
12 A No.
13 Q Did you know, sir, that the IRS in giving those
14 instructions tells the person preparing them in
15 considering their own debts, only to include debts which
16 have priority over the IRS's own claim?
17 A I don't know that.
18 Q Did you know, sir, in preparing an offer in
19 compromise, you are not to consider, the person preparing
20 it, calculating what they propose to pay, should not
21
consider amounts they owe on credit cards?
22 A I don't know that either way.
23 Q And, they are not to consider loans that they obtain 24 without pledging assets as security; did you know that, sir? 25 A No, I did not.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7130 Jordan-cross/Trabulus
1 Q Did you know, sir, if a collection information
2 statement was prepared for purposes of an offer, preparing
3 an offer in compromise, there is no reason to put on it
4 credit card loans, or loans that are not a pledge in
5 assets for security?
6 A I don't know that.
7 Q Again, you did not look at the reasons for the
8 preparation of an offer in compromise; is that correct?
9 A That's correct.
10 (Mr. Trabulus confers with Mr. Wallenstein.)
11 Q With regard to the collection information statement,
12 do you know whether a person who fi
lls one out is supposed
13 to include non-recurring medical expenses as an expense?
14 A If you show me the form.
15 Q The form or the instructions?
16 A The form.
17 Q Would you like to see the instructions, too?
18 A No.
19 THE COURT: Why don't you show it to him when we
20 return from lunch.
21 MR. TRABULUS: Sure.
22 THE COURT: Members of the jury, we will recess
23 at 1:30 from lunch. Please do not discuss the case among 24 yourselves or anyone else, until the end of the trial when 25 you are in the jury room deliberating.
HARRY RAPAPORT, CSR CP CM OFFICIAL COURT REPORTER 7131 Jordan-cross/Trabulus
1 Keep an open mind. Come to no conclusions. We
2 will recess until 1:30.
3 Have a good lunch.
4 (At this time the jury leaves the courtroom.)
5 MR. WHITE: Your Honor, before you leave, may we
6 speak to
you, please?
7 THE COURT: Yes.
8 MR. WHITE: I don't want to encroach on anyone's
9 lunch hour, but the issue about the immunity, can we get
10 to it maybe five minutes before?
11 THE COURT: 25 after 1:00.
12 MS. SCOTT: Your Honor, may I hand up the case?
13 THE COURT: Yes, bring it up, please.
14 (Handed to the witness.)
15 MS. SCOTT: I will refer you in Levy to page 900,
16 and in Biaggi to page 690.
17 THE COURT: There are two cases in here?
18 MS. SCOTT: That's correct. Biaggi, only a part
19 of the case had been copied for you. It is a large case.
20 THE COURT: 690?
21 MS. SCOTT: Yes.
22 THE COURT: Very well.
23 MS. SCOTT: I made a mark on there, and I will be 24 prepared to argue it when we come back. 25 (Luncheon Recess.)
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 7132 Jordan-cross/Trabulus
1 A F T E R N O O N S E S S I O N.
2 MS. SCOTT: Your Honor, I will be doing the
3 argument.
4 THE COURT: Which one are we taking up now, the
5 last issue?
6 MS. SCOTT: Yes, the argument about the immunity.
7 THE COURT: Have you had an opportunity,
8 Mr. Wallenstein, to look at those cases?
9 MR. WALLENSTEIN: I haven't had a chance to
10 Shepardize it but I've had a chance to read it, Your
11 Honor.
12 THE COURT: What do you think?
13 MR. WALLENSTEIN: Judge, it's my position that
14 this case is easily distinguishable and does not --
15 THE COURT: When you say "this case," what do you
16 mean?
17 MR. WALLENSTEIN: United States v. Levy, 578 F.2d
18 896, and that's the case that Ms. Scott handed me before
19 lunch. The case upon which the government relies for the
20 proposition that Mr. Reffsin's testimony, that
21 Mr. Jordan's te
stimony can be that Mr. Reffsin said I'll
22 tell you everything if you give me immunity. I think that
23 on its face this case does not stand for the proposition 24 that that testimony is admissible and that it is 25 distinguishable for a lot of reasons.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 7133 Jordan-cross/Trabulus
1 Number one, Levy is a drug case. Number two,
2 Levy apparently, the way I read this case, Levy had had
3 some prior brushes with the law with respect to drugs and
4 was aware of the DEA's posture with respect to cooperators
5 and, number three, at the time that Levy allegedly made
6 the statement that I will cooperate with you, he was in
7 fact under arrest and had in fact at that point made three
8 prior statements to agents or to an Assistant United
9 States Attorney.
10 THE COURT: So you think the fact that he was
11 under arrest helps your case?
12 MR. WALLENSTEIN: Well, I think the fact that
13 Levy was under arrest at that point in time.
14 THE COURT: I mean Levy was under arrest, if he
15 was under arrest, that helps you, you say?
16 MR. WALLENSTEIN: I don't know if it helps me or
17 hurts me. I think it is distinguishable and it makes the
18 facts of Levy substantially different from the facts we
19 have here.
20 The Second Circuit says that Levy's offer, having
21 been under arrest and having made three prior statements
22 now amounts to a consciousness of guilt and therefore they
23 allow it in. 24 The statement that, as I understand the notes 25 from Inspector Biegelman, and the proffer, the offer of
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 7134 Jordan-cross/Trabulus
1 testimony from the government here, they want to elicit
2
from Agent Jordan that at the January meeting in
3 Mr. Reffsin's office at a time he clearly was not under
4 arrest, that Biegelman told him at that point in time
5 you're lying to us, get yourself a lawyer, and at that
6 point Reffsin allegedly said I'll tell you what you want
7 to know but I want immunity.
8 I don't think that that is consciousness of
9 guilt. Immunity has a specific meaning to us as
10 practitioners, it doesn't necessarily have the same
11 meaning to a layperson. It's a term that is heard, it's a
12 term that is thrown about. It is in the news a lot these
13 days with the President and Monica Lewinski and all of
14 that stuff but it is not necessarily a term that
15 laypersons will understand as we understand it and I don't
16 think that Mr. Reffsin saying I want immunity if you want
17 me to talk to you is the same as sitting down with an
18 attor
ney or myself or Mr. Dowling, my predecessor, or
19 anybody else sitting across of the table from Mr. White or
20 Ms. Scott "if you give me immunity I'll tender my client
21 to you. "
22 That's a whole lot different than a layperson in
23 his office being intimidated by Marty Biegelman saying 24 I'll not talk to you unless I get immunity. That's a real 25 difference and I think under the circumstances it is not
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 7135 Jordan-cross/Trabulus
1 consciousness of guilt. It may very well be an invocation
2 of the right to counsel and is not consciousness of guilt
3 and should not be admitted for that purpose and that's the