Trials That Should Not Have Happened
The Who's Who Debacle and Tragedy
Thomas FX Dunn again proves he is among the Most Despicable Lawyer In America

A Sampling of Members - WoW!!     America's corporate and institutional leadership       Strictly Politics

Honest Federal Judge?     Yeah.      Incredible list of alleged victims

Tiny sampling of Managing Directors     Cross Benjamin    Cross Springer     Direct Quote         Con THESE People?!!

Million-dollar con man testifying to stay out of prison        America's Best & Brightest       Main Page       Dirty Jury?

                                                          Masters and Millionaires
It's worth noting that, beginning right here on page 7312, you see one of the most mindless exchanges between a prosecutor and a federal judge. You can't be sure they're not joking, except for the fact that Michael Maxes is indeed dead, said death expedited by the horrors of calumny surrounding the foundation of this miscarriage of justice, and that another hare-brained idea is extended licit currency.

Even when the judge lets the prosecutor know that NEITHER the judge nor prosecutor know what Mr. Maxes died from, the prosecutor continues with the indefatigable, "Yes, but....".

Let's continue with one of the Trials That Should Not Have Happened, not a whisper of which appeared in any of 1200 news outlets throughout the YEARS that this case dragged on.


7310

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 10, 1998
11 - - - - - - - - - - - - - - X 9:30 o'clock a.m.

12 BEFORE:

13 HONORABLE ARTHUR D. SPATT, U.S.D.J. and a jury
14 APPEARANCES:
15 For the Government: ZACHARY W. CARTER
16 United States Attorney One Pierrepont Plaza
17 Brooklyn, New York 11201
By: RONALD G. WHITE, ESQ.
18 CECIL SCOTT, ESQ. Assistant U.S. Attorneys
19 For the Defendants: NORMAN TRABULUS, ESQ.
20 For Bruce W. Gordon
170 Old Country Road, Suite 600
21 Mineola, New York 11501

22 EDWARD P. JENKS, ESQ.
For Who's Who Worldwide
23 Registry, Inc. and
Sterling Who's, Who, Inc.
24 332 Willis Avenue
Mineola, New York 11501
25
(cont'd)


7311

1 APPEARANCES (cont'd):

2 GARY SCHOER, ESQ. For Tara Garboski
3 6800 Jericho Turnpike
Syosset, New York 11791
4
ALAN M. NELSON, ESQ.
5 For Oral Frank Osman
3000 Marcus Avenue
6 Lake Success, New York 11042

7 WINSTON LEE, ESQ.
For Laura Weitz
8 319 Broadway
New York, New York 10007
9
MARTIN GEDULDIG, ESQ.
10 For Annette Haley
400 South Oyster Bay Road
11 Hicksville, New York 11801

12 JAMES C. NEVILLE, ESQ.
For Scott Michaelson
13 225 Broadway
New York, New York 10007
14
THOMAS F.X. DUNN, ESQ.
15 For 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 Reporter: HARRY RAPAPORT
OWEN M. WICKER
21 United States District Court
Two Uniondale Avenue
22 Uniondale, New York 11553
(516) 485-6558
23
24 Proceedings recorded by mechanical stenography, transcript
produced by Computer-Assisted Transcription
25





7312

1 M O R N I N G S E S S I O N

2

3 (Whereupon, the following takes place in the

4 absence of the jury.)

5 THE COURT: Mr. White, you wanted to see me?

6 MR. WHITE: Yes, your Honor, at the risk of

7 incurring your wrath again, I would like to revisit the

8 allocution we discussed last night?

9 THE COURT: Go ahead.

10 MR. WHITE: Your Honor gave us your thoughts

11 yesterday and that was clear. And I wanted to address

12 what you said. And I think the two main points you made,

13 which perhaps I didn't do as clearly as I did yesterday.

14 One of what I understood your Honor's concerns

15 about the statement was that basically Maxes -- there was

16 a possibility that Mr. Maxes thought he was going to die.

17 Therefore, it wouldn't really be against his interest to

18 plead guilty.

19 It seems to me though from the case there was,

20 whether or not that is true is not relevant. Because

21 unless I am wrong in Scopo, the case we discussed a couple

22 of times, says precisely that you are not supposed to do

23 that. It says, quote, we stress -- not just we state, but
24 we stress, that a defendant's unilateral belief would not
25 suffice to neutralize the exposure ordinarily inherent in

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7313

1 a self-incriminating plea or a llocution.

2 It doesn't say it wouldn't ordinarily do that, or

3 typically. It says flatly, we stress it does not.

4 It seems to me, your Honor, that that is an

5 improper analysis whether or not that is what he thought.

6 It did expose him to possible punishment.

7 And I would also suggest that the evidence about

8 what he was thinking at the time is somewhat equivocal.

9 Your Honor cited the fact that he died six months

10 later. But, yes, he died of something else. He didn't

11 die of the illness at the time he had the plea.

12 THE COURT: I don't know what he died of.

13 MR. WHITE: Okay.

14 THE COURT: Neither do you.

15 MR. WHITE: That's true. But it seems to me that

16 Scopo says that it is not an inquiry we are supposed to

17 make. It says his private belief would not suffice to

18 neutralize the exposure inherent in a plea of guilty.

19 Now, wi th respect to the second point that your

20 Honor made about whether or not this allocution makes out

21 the existence of a conspiracy, I went back and looked at

22 the standard jury instruction from Sand regarding an

23 unlawful agreement, what your Honor would -- something
24 along the lines of what your Honor would tell the jury
25 what to determine -- how to determine if there is a

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7314

1 conspiracy.

2 The standard instruction says: The proof must

3 convince you that at least two persons joined together in

4 a common criminal scheme. Then it contains the language

5 that the agreement need not be expressed.

6 It says that it is sufficient for the government

7 to show that there was a mutual understanding, either

8 spoken or unspoken, between the defendants to cooperate

9 with each ot her to accomplish the unlawful acts by means

10 of a joint plan or common design.

11 Mr. Maxes's allocution at a minimum says, I

12 worked as a member of the sales staff and as such I

13 followed the pitch sheets given me by Mr. Gordon and they

14 contained misrepresentations. And it makes reference on

15 the page 33, the misrepresentations that I and company

16 salespeople made.

17 It seems to me, your Honor, it is clearly

18 suggesting there is at least, between Mr. Maxes and

19 Mr. Gordon at the minimum, a mutual understanding to

20 cooperate with each other to accomplish the unlawful acts.

21 So, while it could be clearer, it doesn't seem to

22 me that it fails to make out the existence of the

23 conspiracy.
24 I want to add that I believe I didn't make that
25 argument as clearly as I should have yesterday.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7315

1 THE COURT: I heard your arguments. They are

2 very well put. The Scopo case does say what you say it

3 says.

4 I don't know if a defendant's unilateral belief

5 would not suffice to neutralize the exposure.

6 The Court went further on to say if Agro,

7 A G R O, privately believed that because of his illness

8 the Court would not require him to suffer incarceration,

9 there would be little reason for him to suppose that the

10 Court would also therefore excuse him from paying a fine.

11 The combination of the factors is what persuades

12 me not to allow this in. Not only is there -- I don't

13 think it is his personal belief alone. I think the man

14 was seriously ill, was obviously seriously ill in front of

15 me. In fact, I believe I put on the record, if you would

16 like to sit down during the allocution, that would be all

17 right.

18 He was just operated on for cancer. He was

19 taking chemotherapy. In addition to the fact that he --

20 whether he privately believed -- I don't think it is only

21 that he privately believed. I think it is the fact.

22 Secondly, he had a cooperation agreement with the

23 government, I believe, did he not?
24 MR. WHITE: He did.
25 THE COURT: And the Scopo case further says,

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7316

1 quote, if, however, a pleading defendant had an agreement

2 with the government, or with the Court, that he would not

3 be punished for the crimes to which he allocuted, than

4 that allocution would not subject him to criminal

5 liability and would not constitute a statement against his

6 penal interest within the meaning of Rule 804(b)(3).

7 There was no agreement he would not go to ja il.

8 There was just a cooperation agreement.

9 So, we have the following factors here: One, a

10 man seriously ill, visibly seriously ill before me, of

11 cancer; having been operated on and taking chemotherapy;

12 two, a cooperation agreement with the government; three,

13 having been fired by Bruce Gordon; four, an allocution

14 which did not expressly ask whether there was a

15 conspiracy. It is very unusual. Five, the only basis for

16 this to go in would be to show that there was a

17 conspiracy. It could not go in to show guilt on the part

18 of any defendant. The cases are clear about that.

19 That combination of factors in my view, if you

20 add 403 to the till, and that he allegedly perjured

21 himself in a Reed case, we don't want to have a mini-trial

22 on Mr. Maxes.

23 On the combination of the factors and in the
24 exercise of my discretion, I d ecline to allow that plea in
25 evidence.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7317

1 Anything else?

2 MR. WHITE: Your Honor was going to consider

3 putting in the paragraph in that information.

4 THE COURT: Can I see the information?

5 MR. NELSON: If I may approach the bench for a

6 moment, your Honor, I have the information?

7 THE COURT: Is it in the same thing?

8 MR. NELSON: Yes.

9 THE COURT: I can't even open that book, it is so

10 full.

11 MR. NELSON: 3500-18-H, and I referred to

12 paragraph five, which is on page 2 of the information.

13 Your Honor, I had the opportunity this morning to

14 re-read United States against Muyet, M U Y E T,

15 958 F. Supp. 136. And as I noted yesterday on the record,

16 the case before Judge Keenan, United States v. Lopez, the

17 procedural history of that cas e was such that a motion in

18 limine was made to limit the scope of what could be

19 brought out in co-defendant's allocutions. At that time

20 Judge Keenan referred to Muyet. I re-read Muyet this

21 morning. And interestingly, and I can add to the Court

22 the significant pages found on pages 138 through 140.

23 What Judge Leisure did in the case was to redact
24 the allocution and limit it to those portions which were
25 specific statements against that individual's penal

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7318

1 interest and that's why they would be admissible.

2 I submit it premised upon the allocution that

3 took place with respect to Mr. Maxes, that in fact such a

4 redaction would not be possible. And there is nothing

5 that goes to the proof of the conspiracy and the

6 allocutions, therefore no portion should be admissib le at

7 all.

8 MR. TRABULUS: Your Honor, I would like to add to

9 that that yesterday the United States Supreme Court

10 decided a case called Gray against Maryland. I know it

11 only from having read the syllabus by the reporter.

12 THE COURT: That's a Bruton case?

13 MR. TRABULUS: Yes. It was a five to four

14 decision.

15 THE COURT: I am familiar with it.

16 MR. TRABULUS: They held that the redaction there

17 was improper. They ruled for the defendant. I have not

18 read the opinion. I just read the syllabus.

19 THE COURT: What I got from the summary that I

20 received is that up to that point, where there has been a

21 Bruton problem, namely a statement by a co-defendant who

22 doesn't testify inculpating another defendant, the Court

23 could redact or revise the statement to change the
24 pronouns, change the nouns. Instead of saying Joe Doe

25 committed the crime, another person committed the crime.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7319

1 Of course, there are only two people there.

2 MR. TRABULUS: Right.

3 THE COURT: So that has been done with varying

4 effect, rather than severing the trial. Of course, the

5 better practice would be to sever the trial. But the

6 United States Supreme Court yesterday five to four said

7 substituting the pronoun or some other fictitious name or

8 noun for the co-defendant -- instead of saying Joe did it,

9 a person did it, or another human being did it, you can't

10 do that. You have to redact everything and not mention

11 anything about the other person even being there.

12 So, you will leave it, I did it, not the

13 co-defendant.

14 MR. TRABULUS: That's the whole point here.

15 Because in this paragraph that is bei ng discussed, it says

16 together with others.

17 When you look at the nature of the evidence in

18 this case, the others would clearly be understood to refer

19 to the other defendants here, or certainly Mr. Gordon.

20 On the basis of what the Supreme Court decided

21 yesterday, that would not be proper. Although it is not a

22 classic Bruton situation with respect to the co-defendant,

23 analytically it is the same.
24 You have an unavailable witness introducing a
25 statement, and the statement inferentially refers to

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7320

1 Mr. Gordon, and under this case it was decided yesterday

2 that it should not come in.

3 THE COURT: Do we have anything more to say other

4 than this? I don't want to keep the jury waiting. I will

5 talk to them and let them know we are delayed.

6 MS. SC OTT: I have the tapes to discuss.

7 THE COURT: I will then go in and tell the jury.

8 By the way, I like that point bringing very

9 current, something that happened yesterday in the Supreme

10 Court. Very good, Mr. Trabulus.

11 MR. TRABULUS: Thank you, your Honor.

12 THE COURT: A good thing I am aware of the case.

13 MR. JENKS: Judge, Mr. Trabulus stays out all

14 night on the Internet.

15 THE COURT: We are supposed to get advance

16 information. I don't know how you got it.

17 MR. TRABULUS: I stay on my computer to keep my

18 son off of it.

19 MR. WALLENSTEIN: He hasn't slept in eight weeks.

20 THE COURT: Sorry to put you at a disadvantage,

21 Mr. White. You will come back tomorrow with another case

22 to nullify that case.

23 MR. WHITE: I am working on it.
24 (The following takes place in the jury room.)
25 THE COURT: Good morning, members of this

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7321

1 wonderful jury, which has almost -- almost all of you have

2 very nice smiles on your face. If you go before I get in,

3 as soon as I walk in you have a smile. I don't know what

4 that means. I am not sure about that.

5 In any event, I am going over some matters of

6 law, which I have for the last 15 or 20 minutes with the

7 lawyers. We are going to be a little bit delayed. We

8 will be with you as soon as we can. I am sorry about

9 that, especially since you are always here on time I feel

10 badly. I like to get you in immediately as soon as I hear

11 that buzzer, get in there. But we will be with you

12 shortly. Sorry about that.

13

14 (Whereupon, at this time the following takes

15 place in open court.)

16 THE COURT: Before we finish with regard to the

17 declaration or statement against penal interest, I looked

18 at the case of United States against Muyet, and the

19 allocution in that case is a little different than the one

20 here. Even the redacted allocution by the defendant said,

21 quote, in or March 1992 I conspired with other people to

22 murder three individuals. Then he says it again, I

23 conspired with other people.
24 The judge said that this portion of the
25 allocution fits squarely within the 804(b)(3) exception to

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7322

1 the hearsay rule, because each of these statements tends

2 to establish an element or elements of a Section 1959(a)

3 offense.

4 Regrettably for the government the allocution in

5 this case was not a good one. As a matter of fact, I

6 probably shouldn't have accepted the allocution. I didn't

7 he ar a word about a conspiracy. And I failed myself to

8 ask the question which I generally do, which is: Did you

9 do this with other people? Did you have an agreement with

10 other people? I generally do that. For some reason I

11 didn't do it in this case. Nor did the prosecutor. When

12 I turned to the prosecutor and said, is that satisfactory

13 Mr. White, or words to that effect, Mr. White said yes.

14 So we both flubbed it. So I don't know what there is to

15 give to the jury when you have a defective allocution here

16 in relation to the other problems. I don't think I will

17 give any of that. I will deny your application in toto.

18 What is the next order of business?

19 MS. SCOTT: The government is moving to admit

20 three tapes which Mr. White described to you yesterday.

21 They contain statements made by a number of employees.

22 THE COURT: This is the stray comment s?

23 MS. SCOTT: Yes, comments of the knowledge of
24 defrauding people. The numbers of the tapes are 1382,
25 1383 and 1384.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7323

1 THE COURT: Let me get them out.

2 MS. SCOTT: The exhibit numbers for the

3 corresponding transcripts we are talking about, I can give

4 you those.

5 THE COURT: Take them one at a time.

6 What is the first one?

7 MS. SCOTT: 1382, and transcript 1382(a).

8 THE COURT: Okay.

9 Sometimes I have to take a course in how to turn

10 pages in this kind of a looseleaf book. I can't manage it

11 right away.

12 All right.

13 MS. SCOTT: We are talking about the first two

14 paragraphs in that exhibit. The last one comes in as a

15 defendant admission.

16 THE COURT: Who was Ron Marsh and who is George

17 Robins.

18 MS . SCOTT: Marsh is an informant wearing a tape

19 recorder, and Robbins is in the employee of the company.

20 THE COURT: A salesperson?

21 MS. SCOTT: Yes.

22 We offered this under 801(d)(2)(E) as corporate

23 admissions. The test for admission is to test forth very
24 clearly in that Pappas case which we have discussed on a
25 prior occasion. The cite of Pappas is P A P P A S. And

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7324

1 the citation is 963 F. 2d 534. And the test is whether

2 there is an agency relationship between the person and the

3 corporation, the speaker and the corporation, and whether

4 the statement is made in the course of that relationship.

5 And, finally whether it relates within a matter within the

6 scope of the agency.

7 Here George Robins was an employee of Sterling

8 Who's Who at the time he made the st atement. He was

9 speaking about activities in which he had direct

10 responsibility. He was a salesperson.

11 THE COURT: Who is Ron Marsh supposed to be?

12 MS. SCOTT: Posing as a salesperson.

13 THE COURT: Hired by the company?

14 MS. SCOTT: Robbins worked for Worldwide.

15 THE COURT: Pardon me?

16 MS. SCOTT: I am sorry, George Robbins worked for

17 Worldwide and not for Sterling.

18 THE COURT: And Ron Marsh was also employed by

19 Worldwide, albeit a confidential?

20 MS. SCOTT: Yes.

21 THE COURT: This is against Who's Who Worldwide

22 only?

23 MS. SCOTT: That's correct.
24 THE COURT: Any objection to this?
25 MR. DUNN: Your Honor, we are talking about

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7325

1 1383-B?

2 THE COURT: You have both the number and the

3 letter wrong. Otherwise yo u are in good shape.

4 1382-A, for Abel.

5 MR. DUNN: Thank you.

6 MR. JENKS: Judge, I am going to object to the

7 introduction of these statements, all three of them, on

8 behalf of all the defendants here.

9 THE COURT: So far I have only seen one.

10 MR. JENKS: We are talking about 1382-A, a

11 Worldwide tape with Ron Marsh and so forth.

12 Although Ms. Scott outlines the law in the Second

13 Circuit clearly in the Pappas case. But you should note,

14 your Honor, that the Pappas case is in fact a civil case.

15 In addition, there is no right of confrontation that these

16 employees have with respect to the statements.

17 I would further argue, although she cites

18 801(d)(2)(E), none of these statements were made

19 concerning a matter within the scope, the direct scope of

20 the employment of that particular agent, Mr. Marsh.

21 So I make the same remarks for all of the

22 defendants on all three of these transcripts.

23 MR. SCHOER: I would add that the Pappas case is
24 a civil case. I know that these rules apply to civil and
25 criminal cases as well, but it seems to me that in a

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7326

1 criminal case, to allow any conversation of an employee,

2 without giving the defendants an opportunity to

3 cross-examine that person, or to test the trustworthiness

4 of that statement shouldn't be permitted. We have certain

5 constitutional rights to confront witnesses against us.

6 And while that statement was made, and I can't contest

7 that it wasn't during the existence of the relationship or

8 concerning a matter within the scope of the agency, I

9 submit, your Honor, I have no opportunity to test the

10 basis for that statement, to cross-examine a witness. And

11 it is being virtually offered against all the defendants,

12 although there would be a limiting instruction, I assume,

13 and that it is only to be offered against the

14 corporation. But I feel that the prejudice clearly

15 outweighs any probative value and your Honor should

16 exclude it for that reason.

17 MR. DUNN: Also, your Honor, if I may, in

18 reference to Ron Marsh, it is my understanding that he was

19 a government confidential informant put into Who's Who

20 Worldwide.

21 The government apparently doesn't know where he

22 is. We don't have an opportunity to cross-examine and

23 challenge him. So in the same vein as the confrontation
24 issue they addressed, I wanted to bring that to the
25 attention of the Court.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7327

1 MR. TRABULUS: Also with reg ard to some of the

2 later transcripts, not 1382, but 1383, you have Ron Marsh

3 making the most damaging statements that are on these

4 tapes. And he is a government informant who is making

5 statements about how people are scamming. He is

6 characterizing statements made to him supposedly by other

7 Who's Who Worldwide people the day before or some other

8 day. It is extremely prejudicial. He is certainly not an

9 agent of Who's Who Worldwide. He is an agent of the

10 government, or an agent of Mr. Biegelman. He is making,

11 supposedly, factual statements and trying to get other

12 people to adopt them.

13 MR. NEVILLE: I second that.

14 THE COURT: Who said that?

15 MR. NEVILLE: Mr. Neville.

16 THE COURT: Okay. Now I really have to take a

17 look at it.

18 MS. SCOTT: With respect to the first contention,

19 the fact that it is a criminal case, and because of that

20 it requires some kind of special consideration, I can cite

21 to you several criminal cases in which corporate

22 admissions have been used not only against a corporate

23 defendant, or have been held admissible not only against a
24 corporate defendant, but against an individual defendant
25 who was the direct supervisor of the person who made the

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7328

1 statement.

2 Now, an example of this case is United States

3 against Rioux.

4 THE COURT: I have it before me. That's what I

5 was looking for, you noticed I was burrowing out there?

6 MS. SCOTT: Yes.

7 THE COURT: What is the citation?

8 MR. WHITE: 97 F.3d 648.

9 THE COURT: You have the only case that I found

10 on this subject.

11 MS. SCOTT: In that case there was no corporate

12 defendant. The Court considered a more -- as to whether

13 it could be used against the supervisor. And found it was

14 admissible.

15 In reaching that case, because of the

16 pre-supposition that it would be admissible against a

17 corporation, if the corporation was a defendant.

18 THE COURT: And used civil cases to back it up,

19 right?

20 MS. SCOTT: Yes.

21 THE COURT: Now with regard to -- that was

22 decided on October 2nd, 1996 by the Second Circuit, so it

23 is fairly recent.
24 MS. SCOTT: Yes.
25 In addition, the courts have always maintained

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7329

1 that the treatment of offered statement under 801(d)(2)(D)

2 is liberal. And for this again I look to the Pappas

3 case. And I would just refer you to a paragraph that

4 begins on page 538 of that opinion, and it is at the

5 bottom of the page.

6 It says: In light of the liberal treatment,

7 proof under 801(d)(2)(D) is accorded, there is sufficient

8 circumstantial evidence in this case to demonstrate -- it

9 talks about the declarant's agency.

10 I will refer you back to page 547 of the Pappas

11 case in which it talks generally about 801(d)(2)(D), and

12 one of the things it says is a statement of an employee of

13 a company is trustworthy because a person who is currently

14 employed by that company is likely -- less likely to make

15 damages statements unless that statement is true. And

16 that's on the bottom of 537 in the Pappas case.

17 THE COURT: Now I know how you got Rioux, because

18 it mentions Pappas, and you put this into the computer,

19 and out it came.

20 MS. SCOTT: You busted me.

21 THE COURT: See, I didn't get it that way,

22 because I don't know how t o work a computer.

23 MS. SCOTT: That paragraph, I believe you are
24 looking at the slip-opinion. It is the second paragraph
25 after the discussion starts.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7330

1 THE COURT: I see it.

2 MS. SCOTT: Okay.

3 MR. SCHOER: Your Honor, can we have a chance to

4 look at the Rioux case?

5 THE COURT: Take a look.

6 MR. SCHOER: Thank you.

7 THE COURT: One thing Ms. Scott didn't mention is

8 that it was a supervisory person who made the statement in

9 the Rioux case.

10 MS. SCOTT: Yes. But not in Pappas. There was a

11 workman who arrived at the scene of the condominium where

12 the accident occurred and he was carrying a shovel and a

13 bucket. And his statements were held admissible against

14 the employer.

15 Now, just to address the other contention about

1 6 whether these statements are made in the scope of the

17 person's employment, there is no dispute that George

18 Robins and Ron Marsh were employed by Who's Who Worldwide

19 at the time the statements were made.

20 THE COURT: I have no problem with it. The only

21 question is, according to the authoritative test,

22 Weisenberger's Federal Evidence, 801(d)(2)(D), authorizes

23 the admissions of a statement by a party's agent or
24 servant concerning a matter within the scope of the
25 agencies or employment where the statement is offered

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7331

1 against the party employer. The proponent of the

2 vicarious admission must establish a foundation which

3 demonstrates that the declarant, Robbins, at the time of

4 the making of the statement was an employee of the party

5 against whom the statement is offered, and it must concern

6 a matter within the scope of the employment.

7 The question is: Is it within the scope of the

8 employment?

9 MS. SCOTT: That's your question?

10 THE COURT: Yes.

11 MS. SCOTT: Your Honor, first of all these two

12 men were employed at Who's Who Worldwide as salespeople.

13 They are making statements about the way they -- the

14 things that they say to people when trying to make a sale;

15 and the fact in their mind the things they are saying are

16 fraudulent.

17 I would refer you to a case called Zaken against

18 Boerer.

19 THE COURT: Also cited in Rioux.

20 MS. SCOTT: That's not where I got it.

21 THE COURT: That's Z A K E N?

22 MS. SCOTT: Yes, and Boerer is B as in Bagel,

23 O E R E R.
24 THE COURT: I would not pursue it too much. What
25 does the Zaken case say?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7332

1 MS. SCOTT: In that case the offered statement

2 was the statement of a vice president of a company. The

3 suit was brought against the president of the company

4 because she was firing women who were pregnant. Once they

5 got pregnant she fired them.

6 The offered statement is the statement of a vice

7 president of I believe sales. And I will find out what he

8 says for sure. But a vice president in the company stated

9 that another woman in the past had been fired because she

10 was pregnant.

11 I would submit, your Honor, in a case, if that

12 kind of statement being in furtherance -- I mean in the

13 scope of his authority, then, in other words, it simply

14 had to do with his responsibilities. And let me just find

15 it.

16 Page 1323 of the Zaken against Boerer decision.

17 Ed Newman, the com pany's then vice president of

18 sales told the witness that another woman was fired

19 because she was pregnant. And that statement was held to

20 be within his -- within the scope of his employment with

21 the company.

22 Now, I don't see -- Robin Weinberg was I believe,

23 a salesperson and that's why it was within the scope of
24 his employment. And that's a fairly tenuous connection in
25 this case.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7333

1 In this case here the connection is very clear.

2 These people are talking about what they do everyday as

3 salespeople of the company, what they say to people and

4 what the effect is on the people.

5 THE COURT: Your point is that in Zaken although

6 the declarant was a vice president, he spoke about a

7 matter that would not normally be within the scope of his

8 employ ment? That it would be has little more attenuated?

9 MS. SCOTT: The scope of the employment as

10 determined in Zaken is very broadly defined.

11 THE COURT: I agree with you.

12 MR. SCHOER: Except that in the Rioux case, and I

13 don't know if I am pronouncing it correctly.

14 THE COURT: Rioux.

15 MR. SCHOER: Rioux. That it seems to indicate

16 that someone has to be in a -- to be a participant in a

17 decision-making process that is the subject matter of the

18 statement.

19 THE COURT: In that case, yes. But not in this

20 case, Mr. Schoer. In this case a salesperson is one of

21 the people that would normally deal with how people are

22 nominated or they are going to be asked that question by

23 everybody they talk to. That's within the scope of their
24 employment. That's within their concern.
25 Of course, they say we don't know, or we can't



HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7334

1 tell you, or it is anonymous. But it is a subject within

2 the scope of their employment. No question about it.

3 MR. SCHOER: I am still concerned about the 403

4 analysis. While this may be admissible, the question is

5 as to whether the probative value is outweighed by the

6 prejudice.

7 THE COURT: I don't think it is. It is not going

8 to be an emotional situation where someone is cutting up

9 bodies. It is not going to confuse the jury.

10 MR. SCHOER: I understand with respect to this

11 statement we are discussing right now that your Honor

12 might take that position. But I think when you listen to

13 the other statements, the lack of ability of the

14 defendants to cross-examine the witnesses making the

15 statements in a criminal case will lead your Honor to

16 believe that th e prejudice is outweighed by the probative

17 value.

18 THE COURT: 1382-A for Abel is in.

19 What is the next one?

20 MR. NEVILLE: Your Honor, I propose if the Court

21 is going to allow that in -- first, I should say it is

22 obvious why the government is putting the tapes in, not as

23 against the corporation. It is no coincidence or surprise
24 that there is Tara Garboski and Steve Walden on the tapes.
25 THE COURT: That's not going in. The Tara Green

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7335

1 part --

2 MR. NEVILLE: Is not going in.

3 THE COURT: No.

4 MR. NEVILLE: Nor Steve Walden?

5 THE COURT: Looking at 1382-A for Abel, Steve

6 Walden is not on there. It is not going in with this, but

7 it is an admission.

8 Did you put this in as of now, Tara Green's

9 statement?

10 MR. SCHOER: No .

11 THE COURT: In 1382-A for Abel?

12 MS. SCOTT: We have not played it because we are

13 waiting for the ruling on the top part. We assumed that

14 the Tara Green statement would go in as an admission

15 against interests.

16 THE COURT: You will play the whole thing then?

17 MS. SCOTT: Yes.

18 THE COURT: All right, I was in error, all

19 right.

20 MR. NEVILLE: I would ask we be allowed to

21 express to the jury that in each of these instances there

22 is a government plant; that the jury understands that part

23 of the parties in these statements are informants.
24 MR. SCHOER: And I think also -- I am sorry.
25 MR. NELSON: If I might, returning to the issue

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7336

1 the Court raised with respect to the scope of the

2 employment, one of the concerns I have in meeting tha t

3 prong is that Mr. Marsh is actually wearing two hats at

4 the time he is engaging in this conversation. He might

5 ostensibly be employed at Who's Who Worldwide at the time

6 the statement is being elicited. But the point of fact is

7 that he is employed at Who's Who Worldwide at the

8 instruction and direction of the United States

9 Government. I think that that bears significantly --

10 THE COURT: I am going to tell the jury that.

11 MR. NELSON: Thank you, your Honor.

12 MR. SCHOER: Judge, with respect to the issue

13 raised by Mr. Neville, and the statement by Ms. Green --

14 Ms. Garboski -- I think it ought to be made clear to the

15 jury that there is a tremendous amount of tape in-between

16 these two statements. And they are not -- they weren't

17 during the course of the same conversation. The man was

18 wired for the whole day. And the conversation with

19 Mr. Robbins, I don't remember particularly how long before

20 the statement by Ms. Garboski, but I believe it was a

21 significant period of time. It wasn't the same

22 conversation. The same people weren't present. I

23 think --
24 MS. SCOTT: We agree there is a large expanse of
25 time in-between those two statements on the tape. We

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7337

1 agree with that.

2 MR. SCHOER: Really it should have been separate.

3 THE COURT: I think you will pay them separately

4 then?

5 MS. SCOTT: Yes.

6 THE COURT: At different times.

7 MS. SCOTT: We always agreed --

8 THE COURT: One minute, will you?

9 MS. SCOTT: Okay.

10 MR. NEVILLE: I would ask the government to

11 inform the defendants --

12 THE COURT: Would you wait one minute, please?

13 (Whereupon, at t his time there was a pause in the

14 proceedings.)

15 THE COURT: You will play them separately at

16 different times.

17 MS. SCOTT: Okay. And we will stick something

18 in-between them.

19 MR. NEVILLE: I am told the Ron Marsh person is

20 unavailable, and the government can't find them. We as

21 defendants have been trying to locate him also.

22 I would like to put in the record now for later

23 on in the jury instructions in terms of the availability
24 of witnesses, if we argue in our summation something about
25 Ron Marsh, I don't want Mr. White to ask for an

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7338

1 instruction that we could have called him if we wanted

2 to. We made efforts to find him. We can't find him. The

3 government can't find him, so he is fair game to the both

4 of us.

5 THE COURT: You cert ainly can comment on

6 summation.

7 MR. NEVILLE: But I don't want Mr. White to have

8 the Court instruct the jury that we could have somehow

9 called him if he didn't, which they undoubtedly would do

10 for Marty Biegelman.

11 MS. SCOTT: We submitted an instruction for your

12 Honor's consideration to the effect that neither party can

13 be held to account for failing to call certain witnesses.

14 It is toward the end of the instruction packet that we

15 gave you.

16 THE COURT: Right.

17 MR. WHITE: I don't mean to interrupt the

18 argument and I don't want to have dueling arguments, but

19 in response to something Mr. Neville said relating to a

20 conversation I had with defense counsel.

21 I never said that Mr. Marsh was unavailable and

22 didn't know where he was. Mr. Schoer asked me a specific

23 question, when was the last time I spoke to him. I told
24 him it was a fair number of months ago. I want to clarify
25 this so something is not left unclear.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7339

1 The government and the defense had extensive

2 discussions.

3 We agreed that the defense would stipulate to the

4 authenticity of all of them on the condition that the

5 government call the three informants we have called,

6 Mr. Watstein, Mr. Zerring and Mr. Ihlenfeldt. And that

7 the remaining CIs would not have to come here and

8 authenticate the tapes because the defendants would agree

9 to their authenticity. I understood it was in the

10 defendants' interest because they would not then have to

11 track down informants that we couldn't call that made

12 tapes they consider favorable. For instance, Mr. Trabulus

13 indicated he wanted to play a tape favorable to

14 Mr. Gordon. The government didn't intend to call him. I

15 said, I will agree to the authenticity of that, and you

16 can play it without having the guy here.

17 That's the same with Mr. Marshisoto, the real

18 name of Mr. Marsh.

19 THE COURT: You have to spell that one.

20 MR. WHITE: M A R S H I S O T O.

21 THE COURT: Do you know where Mr. Marshisoto

22 was?

23 MR. WHITE: Yes.
24 THE COURT: Where is he?
25 MR. WHITE: I don't know off the top of my head.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7340

1 THE COURT: Does the defense want his address?

2 MR. NEVILLE: Yes, your Honor.

3 THE COURT: All right. Produce his address.

4 MR. WHITE: If that's the case, your Honor, I

5 consider that a violation of a stipulation that we have

6 agreed to. And I may not now agree to the defense tapes

7 they want. I don't want to get into a tit for tat.

8 THE COURT: This stipulation, is it in writing?

9 MR. WHITE: I am sorry?

10 THE COURT: How was this stipulation entered

11 into?

12 MR. WHITE: The stipulation was in writing.

13 THE COURT: Where is the stipulation?

14 MR. WHITE: My point is it only specifies certain

15 of the defense exhibits, because they hadn't specified the

16 others yet. I don't want to do that. What they are

17 suggesting is violative of the agreement we have.

18 THE COURT: I want to see the stipulation.

19 MR. WHITE: The stipulation said the following

20 things are to be admitted, I want to explain the

21 background that led up to that. I feel if I have a chance

22 to talk to defense counsel it can be worked out.

23 MR. TRABULUS: I was party to some of the
24 discussions and I have to express some disagreement with
25 Mr. White's version o f the negotiations.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7341

1 It is true that Mr. White agreed to produce

2 certain of the informants. I wanted Ihlenfeldt and

3 Zerring produced. Apparently other counsel wanted

4 Mr. West produced. I also wanted to play a tape, and

5 indicated I wanted to play a tape with regard to

6 Mr. Lindauer. And I believe in the discussion there were

7 two informants, two of the six, who Mr. White said they

8 served sentences, had gone over somewhere and there is no

9 assurance where they can be obtained. I believe one of

10 the two was Mr. Marshisoto, if I recall correctly. But I

11 know there were two he didn't know where they were. He

12 wanted to play their tapes. As a quid pro quo for us

13 playing tapes without calling various informants, we

14 entered into the stipulation. That's the factual

15 predicate for us agreeing to enter into the stipulation.

16 The stipulation itself does not embody that discussion.

17 But that discussion was --

18 THE COURT: Is the understanding that the

19 government was only to produce those three informants and

20 not anybody else? Is that the understanding?

21 MR. TRABULUS: Yes. And it was predicated upon

22 the government stating to us that they did not know where

23 two of the informants were. One I believe was
24 Mr. Marshisoto.
25 Q Was the agreement that you would not call either of

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7342

1 the other informants?

2 MR. TRABULUS: No.

3 THE COURT: Why is that a breach of the

4 agreement, Mr. White?

5 MR. WHITE: Your Honor, precisely, and, again, we

6 are disagreeing. But my understanding was that

7 government -- that they w ere not going to call the other

8 informants.

9 THE COURT: That's not in writing, was it?

10 MR. WHITE: No.

11 THE COURT: There is a disagreement. I am

12 telling you now if they want to call the other informant I

13 will let them do it. So I am directing you to turn over

14 to them the address of this gentleman whose name I can't

15 pronounce.

16 MR. WHITE: Okay.

17 THE COURT: That's the end of that. Next case.

18 Do you want to go into the next tape?

19 MR. WHITE: Ms. Scott will.

20 THE COURT: If you want that address, whoever

21 wants it, you are going to have it.

22 MR. NEVILLE: Thank you.

23 THE COURT: You better give it to him as soon as
24 possible. They want to subpoena this person or have an
25 investigator go out.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7343

1 What is the next tap e?

2 MS. SCOTT: Referring now to

3 Government's Exhibit 1383.

4 MR. JENKS: Is it B, Ms. Scott?

5 MR. WHITE: 1383. And the exhibits are -- I am

6 not talking about 1383-A, because that, it seems to me

7 comes in as an admission against interest. It is Steve

8 Walden and Ron Marsh speaking, an admission of the

9 defendant.

10 THE COURT: Okay.

11 What transcript is this?

12 MS. SCOTT: 1383-A. I am not asking you to admit

13 it under 801(d)(2)(E) because it is an admission of the

14 defendant.

15 1383-Baker, is a conversation of Ron Marsh and

16 George Robbins.

17 THE COURT: The same two people?

18 MR. SCHOER: And a third person whom we don't

19 know.

20 MR. JENKS: We don't know.

21 THE COURT: Let me read it.

22 (Whereupon, at this time there was a pause in the

23 proceedings.)
24 THE COURT: I will exclude the first, the
25 second -- the first, second, third, fourth and fifth

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7344

1 statements are out. They say something and mean nothing.

2 And like I said, we are not a marketing company

3 laughing, starting with that.

4 MS. SCOTT: Okay.

5 THE COURT: Any objection to that? Is it the

6 same objections?

7 MR. JENKS: The same objections. But in this

8 tape, your Honor, you should at least look at 403.

9 There are two statements here by Mr. Robbins, and

10 lying.

11 When you consider the prejudicial effect to all

12 the defendants versus the probativeness in light of all

13 the previous tapes played and introduced, I would suggest

14 it outweighs the probative value of this tape. And I ask

15 in your discretion to exclude the tape.

16 THE COURT: No, your motion is denied.

17 MR. LEE: Your Honor, I am asking the Court to

18 make the distinction between a statement of fact, I don't

19 know if it is in the scope, but a distinction between a

20 statement of a fact and an opinion by someone. And I

21 think an opinion is not within the scope. It certainly

22 lacks probative value. We don't know the motivation for

23 the opinions.
24 I am asking your Honor when you scrutinize this,
25 that this is important to distinguish between something

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7345

1 which is an absolute factual statement.

2 THE COURT: Objection overruled.

3 Next.

4 MR. NELSON: If I may be heard on a 403 issue on

5 a somewhat different ground as relating to Mr. Osman.

6 As the Court recalls I made a severance motion as

7 relating to Mr. Osman. My severance motion was with

8 regard to b eing tried with Mr. Gordon and the

9 corporations.

10 Your Honor, these recordings were made in August

11 of 1994, and are being introduced as vicarious admissions

12 of the corporation that Mr. Osman was not employed by at

13 the time the statements were made. He didn't come to be

14 employed until November of 1994.

15 I would submit as it relates to him and the

16 prejudicial spillover on all the other defendants are such

17 that the 403 issue should be explored much more closely,

18 than merely a balancing of their probative worth as

19 against the prejudicial effect, particularly as it relates

20 to my client, since he wasn't even an employee of the

21 company at that time.

22 MS. SCOTT: Mr. Osman's motion was to sever the

23 mail fraud from the tax. It wasn't to sever Mr. Osman
24 from the other mail fraud defendants.
25 THE COURT: Do you wish me to say at the time of

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7346

1 the charge that at the time the statement was made that

2 the defendant Osman was not an employee of the company?

3 MR. NELSON: Yes, your Honor.

4 THE COURT: All right.

5 MR. LEE: Your Honor, as we go on and analyze

6 each of these tapes, your Honor should know also that the

7 opinion of the person speaking is being offered actually

8 to prove what I feel is the pivotal issue in this whole

9 case, which is intent, and their knowledge of committing a

10 crime. I think that is the pivotal issue as far as I am

11 concerned. And these statements are opinions of a person

12 of his intent or criminal intent. And that's the pivotal

13 issue in this case. And I feel that it merely argues

14 toward excluding that.

15 MR. TRABULUS: More than. It is not saying I am

1 6 lying, it says we are lying, making a statement not only

17 about his own intent or other people.

18 THE COURT: Responding one at a time, I overrule

19 your objection, Mr. Lee and yours, Mr. Trabulus.

20 With respect to 403, Mr. Nelson, let me read to

21 you from the outstanding authoritative text,

22 Weisenberger's Federal Evidence on Rule 403.

23 Quote, exclusion on the basis of unfair prejudice
24 involves more than a balance of adverse prejudice. If
25 unfair evidence referred to any evidence prejudicial to a

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7347

1 party's case, anything adverse to a litigant's position at

2 trial would be excludable under 403: Emphasis must be

3 based on the word, inside quote, unfair. Unfair

4 prejudice -- which is the words in the rule -- and that

5 quality of evidence that might result in an improper,

6 usually irrational basis for a jury decision.

7 Consequently, if the evidence arouses the jury's emotional

8 sympathies, use of drugs, criminal actions -- I added

9 those last two -- evokes a sense of horror -- photographs

10 of an open wound close up, or appeals to an instinct to

11 punish -- the evidence may be unfairly prejudicial.

12 Usually, although not always, unfairly prejudicial

13 evidence appeals to the jury's emotions, rather than

14 intellect.

15 Unfair prejudice may be present when inflammatory

16 or otherwise shocking real proof or photographs are

17 offered.

18 It must be remembered that Rule 403 calls for a

19 balancing of probative value against the case

20 counterweight, and no evidence is admissible simply

21 because it is sensational or prejudicial.

22 Then it goes on to say other reasons for 403,

23 which is confusion of the issues, or misleading the jury.
24 I don't think that this evidence is unfairly
25 prejudicial. It is certainly prejudicial, but it is not

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7348

1 unfairly prejudicial.

2 MR. TRABULUS: Your Honor, if I may add one

3 additional ground for my objection?

4 THE COURT: Yes.

5 MR. TRABULUS: This is to be admitted only

6 against the corporate defendants. So, with regard to the

7 individual defendants we are in a Bruton type situation,

8 because it is an admission by -- I will make the same kind

9 of distinction as the one in Bruton and Gravy against

10 Maryland, here. So there is a constitutional objection,

11 in addition to the objection -- there is a constitutional

12 objection on behalf of all the non-corporate defendants,

13 in addition to the objection under the Federal Rules of

1 4 Evidence.

15 MR. SCHOER: I was going to add and I think I

16 said it before, that I think that word "unfair" that your

17 Honor can consider the lack of the ability to confront the

18 witness and to test the trustworthiness of the statement

19 in determining whether or not there is unfair prejudice in

20 the balance with respect to probative value. And I think

21 that that is the key here.

22 THE COURT: You cannot confront George Robbins?

23 MR. SCHOER: We cannot.
24 THE COURT: Where is George Robbins? He is not
25 the confidential informant, is he?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7349

1 MR. WHITE: No, your Honor.

2 THE COURT: Why can't you confront him? He is

3 the one making the statement and not Mr. Marsh.

4 MR. DUNN: Your Honor, we don't know where

5 Mr. Robbins is. It is my recollection is he was on th e

6 witness list originally from the government, so they know

7 where he is. If they want to give us his address I would

8 request that also.

9 THE COURT: Give them the address for George

10 Robbins.

11 MR. DUNN: I would like to step back a moment to

12 1383-A dealing with Mr. Walden, I would like to object to

13 the confrontation issue as well pertaining to Mr. Marsh.

14 THE COURT: Your objection is overruled.

15 MR. TRABULUS: Judge, with regard to the

16 confrontation issue, I don't believe the burden should be

17 on the defense to have to call individuals who

18 out-of-court statements are being introduced by the

19 government. I don't believe our right to confront

20 requires us -- puts the burden on us to put on the defense

21 case that includes the prosecution witnesses.

22 THE COURT: I don't either. But you raised the

23 right of confrontation . And the one who is given the
24 probative evidence against the corporation is George
25 Robbins, and not the confidential informant.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7350

1 MR. TRABULUS: True with regard to Mr. Robbins,

2 but if our right of confrontation is to be honored, it is

3 their burden to produce him, not ours.

4 THE COURT: 801(d)(2)(D) permits it, right of

5 confrontation nevertheless, it permits it.

6 MR. WHITE: Your Honor, I would like to respond

7 to one thing Mr. Trabulus said and not Ms. Scott.

8 THE COURT: You mean he is using the new case?

9 And very well, I think, too.

10 MR. WHITE: I don't know, I have not read it yet.

11 THE COURT: Neither has he. But that hasn't

12 stopped him at all.

13 MR. TRABULUS: I did read the syllabus.

14 MR. WHITE: I want to make it clear with respect

15 to Mr. Marshisoto here. He made five tapes. Two of them

16 are already in evidence. The defendants stipulated that

17 it could -- that it can come in.

18 The only issue with respect to the remaining

19 three we are talking about now, the only issue they raised

20 pretrial is whether or not this is admissible as a

21 corporate admission. It is not like they were demanding

22 to have Mr. Marshisoto here.

23 THE COURT: But they raised their legal
24 arguments. They have a right to do that.
25 What is next?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7351

1 MS. SCOTT: 1383-C, your Honor. And the same

2 principles would permit that person of the tape to come

3 in.

4 In that case we have a conversation between

5 Mr. Marsh the informant, and a person we have identified

6 as a male voice, but we know it to be an employee by the

7 name of Richard Pollito.

8 THE COURT: How do we know that?

9 MS. SCOTT: He is referred in other portions of

10 the tape. The transcriber didn't refer to him when he was

11 making his statements. She didn't mark his statements

12 with his name.

13 In draft transcripts provided to the defense we

14 made the attribution to Richard Pollito.

15 THE COURT: Where it says male voice, it is

16 Mr. Pollito?

17 MS. SCOTT: That's correct.

18 THE COURT: You have to put that in, don't you?

19 MS. SCOTT: All right.

20 THE COURT: Let me just read this.

21 (Whereupon, at this time there was a pause in the

22 proceedings.)

23 THE COURT: Who is Richard Pollito?
24 MS. SCOTT: An employee of the company, a
25 salesperson.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7352

1 THE COURT: Any objection?

2 MR. TRABULUS: Yes, but with regard to this one,

3 this is basically Ron Marsh using these employees as a

4 foil. He is basically feeding them the points. It is Ron

5 Marsh talking and Ron Marsh making the statements.

6 MR. LEE: I would like to inform the fact as far

7 as I know, first of all what Mr. Trabulus says is true.

8 But these files as I understand it were employees there

9 for a very short period of time. I was there for maybe

10 two weeks and then left.

11 THE COURT: George Robbins was there for two

12 weeks?

13 MR. LEE: I am talking about two or three weeks.

14 Therefore, that goes -- again, it makes the statements

15 less reliable and more suspect. And it makes it more

16 tending to not be a statement based on observation -- the

17 operations of the corporation, but more an outsider's

18 opinion or a new person's opinion. And I think the

19 s tatement goes to the part of the defense.

20 MR. TRABULUS: They may be basing the opinion not

21 on the company's practices, but upon what Mr. Marsh is

22 telling them. It goes to the reliability of what they are

23 saying.
24 MS. SCOTT: Your Honor, that's an argument that
25 can be made to the jury in summation. The tape speaks for

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7353

1 itself. If people want to attribute a different meaning

2 to it they can do it in argument.

3 MR. TRABULUS: There is a certain threshold here

4 with respect to scope of employment and the opportunity to

5 have knowledge of what is being spoken about. If these

6 people were there only a couple of weeks, I am not sure

7 that is made, particularly if it is Marsh making the

8 assertion of going along with it or what appears to be a

9 humorous episode.

10 THE COURT: At the least how long was George

11 Robbins with the company, two weeks?

12 MR. TRABULUS: I don't know. It goes back to

13 1382-A.

14 THE COURT: I don't know how long he is with the

15 company.

16 MR. LEE: The defense is now prepared to take the

17 position without affidavits that it was at the top three

18 weeks. And if your Honor --

19 THE COURT: Does the government know how long he

20 was with the company?

21 MR. SCHOER: I believe we have some 3500 material

22 with respect to that, if I can have a second to find it

23 and we may have the answer.
24 MR. NEVILLE: My client Scott Michaelson says he
25 doesn't know who this person is.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7354

1 MR. TRABULUS: Neither does Mr. Gordon.

2 MR. SCHOER: I have it here.

3 MR. WHITE: Your Honor, I don't know how long he

4 was there. He was an employee at the time he made the

5 statements. He was a salesperson.

6 MR. SCHOER: He worked for a month. According to

7 the 3500 material, the notes of -- I don't know who it is,

8 one of the postal inspectors, he claims he worked from

9 4/94 or 4/85, worked for a month. And this is August.

10 This doesn't even match up. It is April or May according

11 to the notes.

12 MR. TRABULUS: The government has all the

13 employment records of Who's Who Worldwide. They were in

14 the warehouse in Brooklyn.

15 MS. SCOTT: Your Honor, if I might direct you

16 back to Zaken against Boerer, which may help you with this

17 issue.

18 In that case they discuss the weight that can be

19 given to declarant's statement, who was Ed Newman, the

20 company's then vice president of sales. And the defense

21 challenged the statement o n the additional ground that

22 Mr. Newman had left the company in a bloodless cue at the

23 time he made the statement. And people believed at the
24 time he made the statement he was conspiring against the
25 company.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7355

1 The Court found that it wasn't a reason to

2 exclude the statement. They said it goes to the weight of

3 the statement rather than the admissibility.

4 THE COURT: Does the government stipulate that he

5 was with the company a month?

6 MR. NELSON: His interview notes reflect, your

7 Honor, he was there for a short time where he never

8 reached the level of employment where he was given the new

9 lead cards. He was only given the NG cards which were

10 being redistributed for the people being retrained.

11 THE COURT: Where is this?

12 MR. NELSON: Page 5 of 3500-21-A, an interview

13 conducted by the government of George Robbins on March

14 30th, 1995. And it states in those records on page 5 of

15 the records.

16 MR. SCHOER: It says that all new telemarketers

17 would work NG cards only. After one month additional

18 training to work fresh cards. And he says he worked there

19 only a month.

20 MR. NELSON: It states on line 5, never made to

21 it fresh cards.

22 MR. SCHOER: GR took second training sessions.

23 Never made it to new, paren, fresh, close paren, cards.
24 MR. TRABULUS: Your Honor, the company's practice
25 was to keep people on old cards for only two weeks.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7356

1 MR. LEE: The 3500 material says he didn't

2 complete the last week, which is the fourth week. So I

3 feel the original three weeks is more likely.

4 THE COURT: I am persuaded to disallow this not

5 under the basis of unfair prejudice, but confusion of the

6 issues or misleading the jury.

7 Here is what the text says:

8 If the jury is likely to ascribe excessive

9 unwarranted weight to the evidence, the offered proof is a

10 candidate for exclusion under Rule 403.

11 In any situation in which the evidence must be

12 accompanied by a limiting instruction so convoluted or

13 tortured that the jury would be at a loss to gauge the

14 proper application or weight of the evidence, Rule 403 may

15 operate to exclude the offer.

16 As a generalization the more remote from the fact

17 of the event sought to be proven the lower its probative

18 value; an extremely remote fact possessing extremely low

19 probative value may be excluded under 403 when an

20 appropriate counter weight is prejudice, e.g., confusion

21 or prejudice.

22 Now, reading this part, this 1383-C, when I read

23 the last portion on the first page, which by George
24 Robbins says, and this is the most damaging part, and it
25 is really the only damaging part, quote, we only take in

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7357

1 9,999, because we are the most exclusive directory in the

2 entire world.

3 That's in response to Mr. Marsh saying 10,000 to

4 15,000 we apply, we only take 1,000.

5 In response to that Mr. Robbins said, we only

6 take 9,999 because we are the most exclusive directory in

7 the entire world.

8 Now, when I first read it I thought he was being

9 cute, funny or making a joke when he said that. That's

10 the impression I got. It was like a flip statement.

11 My impression is fortified by the fact that this

12 man worked less than a month w as not a full statement, and

13 only working with NG cards. And for me to allow this to

14 go into evidence when it probably was a flip statement by

15 a salesman who wasn't very experienced in the company, I

16 think it would be unfairly prejudicial and would mislead

17 the jury, mislead the jury.

18 MS. SCOTT: Your Honor, there is no evidence that

19 he didn't move on from NG cards. We have no evidence of

20 that. The government has agreed to stipulate that he

21 wasn't there for more than a month. It is a very

22 uncomplicated instruction to give to the jury. And the

23 rest are things the defense can argue as going to weight.
24 These statements fall squarely within 801(d)(2)(E).
25 THE COURT: I don't know if they do. How does he

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7358

1 know if he worked a month how much they take?

2 MS. SCOTT: Eric Ihlenfeldt knew after a week.

3 That's what this goes to, you figure it out quickly. You

4 saw that they were taking back everybody who was sending

5 back lead cards.

6 MR. SCHOER: They put Mr. Zerring there who was

7 there for ten weeks and he didn't say he knew anything

8 about anybody committing any fraud.

9 MS. SCOTT: Part of this is we are not allowed to

10 bring this out in the course of questioning.

11 MR. SCHOER: You brought it out when you

12 questioned Ilhenfeldt, and you didn't bring it out when

13 you questioned Zerring, and you didn't. You could have.

14 MS. SCOTT: Perhaps because the defense failed to

15 object to that.

16 THE COURT: I recall in this case that no one has

17 said that they accept everybody.

18 Also, no one has testified as of now that they

19 only turned down one out of 10,000 people, except for this

20 statement now. I have seen no evidence of that in this

21 case. In fact, it has been skirted around quite a bit

22 about what in fact they do accept and don't accept.

23 There is no doubt that the preponderance of the
24 evidence -- and I don't mean legal proof -- but most of
25 the evidence is that they accept almost everybody. But no

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7359

1 one has said that they take 9,999 out of 10,000. This is

2 entirely new. There is nothing in the case like this.

3 And to have an employee, who is a short term employee, not

4 yet a full salesman, apparently, to say a thing like this

5 and in a very casual and flip manner I think that would

6 confuse the jury unnecessarily, and unduly and in a

7 probative weight.

8 You had witnesses who knew about this.

9 Mr. Saffer working with the company for many years, he

10 never said they took 9,999 out of 10,000. You never asked

11 the question. I am excluding it.

12 MR. WHITE: You are excluding C?

13 THE COURT: Yes.

14 MR. SCHOER: Can we go back to B?

15 THE COURT: You can always go back to B, until

16 the jury is discharged, I told you.

17 MR. SCHOER: Until it gets in.

18 THE COURT: Even when it gets in.

19 I am looking at B.

20 MR. SCHOER: B also, Judge, I think if you listen

21 to the tape you will get the sense of these

22 conversations. And if you see where Mr. Robbins says, we

23 are lying, there is laughter before that.
24 Yes, these statements are very flip. And it is
25 the same analysis as you just entered into with respect to

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7360

1 C that is so with respect to B.

2 THE COURT: Except 9,999 is a concrete flip.

3 That's a real flip.

4 Your objection is overruled. That will go in.

5 1383-B, I do not revise my ruling.

6 What else do we have?

7 MS. SCOTT: 1383-D, as in Daniel. A conversation

8 between Richard Pace and Ron Marsh and --

9 THE COURT: How much more do we have?

10 MS. SCOTT: We have D, E and F.

11 THE COURT: I will go into the jury and tell them

12 they can walk around.

13 How much more do we have?

14 MS. SCOTT: D, E and F, and 1384-A, so we have

15 four more.

16 MR. TRABULUS: While you do that, may I leave to

17 go to the wash room upstairs?

18 THE COURT: Yes.

19 (Whereupon, at this time there was a pause in the

20 proceedings.)

21 THE COURT: Anybody have any objection to me

22 telling the jury as a sort of a quid pro quo, that it

23 appears that the government may rest today?
24 MR. WHITE: No objection.

25 THE COURT: Anybody objection to that?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7361

1 MR. NELSON: No.

2 MR. DUNN: No.

3 THE COURT: Mr. Gordon, do you think Mr. Trabulus

4 would object?

5 THE DEFENDANT GORDON: No, he would not.

6 THE COURT: All right.

7 (The following takes place in the jury room.)

8 THE COURT: I have some good news and some bad

9 news.

10 The bad news is we are still going over some

11 matters.

12 The good news is I am permitted to tell you that

13 it is likely that the government may rest their case

14 today. I bought that in to pave the way so you would not

15 throw some cards at me or something. But it may be.

16 Certainly by tomorrow probably.

17 What I am doing is going over certain evidentiary

18 offers which I am finding out whether it will go to you or

19 not. That's what I am doing.

20 So it will take a little more time, maybe another

21 half or three-quarters of an hour.

22 In return for which you heard what I just told

23 you.
24 That's the story; and I again apologize. I
25 didn't realize it will take this long, but I cannot avoid

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7362

1 this. It might save a lot of time as a matter of fact.

2 JUROR NO. 7: I have a question.

3 Based on your experience, how long do you think

4 the defense will be?

5 THE COURT: That's impossible to say. They have

6 no burden. They need not put in any defense. You can't

7 infer anything as a result of it. So that is an open

8 question. We will see.

9 A JUROR: Thank you.

10 (Whereupon, at this time the following takes

11 place in open court.)

12 THE COURT: We will take a short reces s at this

13 time.

14

15 (Whereupon, a recess is taken.)

16

17 MR. TRABULUS: Your Honor, one statement I made

18 before I wanted to correct because it may have given the

19 erroneous impression. I believe Mr. White did not tell me

20 that it was Mr. Marshisoto whose whereabouts he did not

21 know. Another informant in terms -- whose first name is

22 R, it was Mr. Greenberg. One was Lindauer, he tells me it

23 is Greenberg, and I spoke with Mr. Schoer and it is
24 consistent with his recollection.
25 THE COURT: I did tell the jury that the

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7363

1 government may rest today. I am sure you have no

2 objection to that?

3 MR. TRABULUS: Of course not.

4 THE COURT: I told them that to ease the way.

5 Are you all right?

6 THE DEFENDANT OSMAN: I am fine. Thank you for

7 your concern.

8 THE COURT: One of the jurors asked how long the

9 defense would be, and I told them you can't concern

10 yourself with that.

11 When I told them there is an end to the

12 government's case, they are now looking for the next end,

13 the real end.

14 What is next?

15 MS. SCOTT: 1383-D, offered under 801(d)(2)(D),

16 as a corporate admission. It is a conversation by

17 Marshisoto, Richard Pace and George Robbins.

18 THE COURT: Who is Richard Pace?

19 MS. SCOTT: Pollito, the other employee whose

20 name was left out in the prior tape.

21 THE COURT: He is not a confidential informant?

22 MS. SCOTT: No, an employee -- a salesperson.

23 THE COURT: Let me read it.
24 (Whereupon, at this time there was a pause in the
25 proceedings.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7364



1 THE COURT: It goes on for several pages?

2 MS. SCOTT: Three pages, I believe.

3 THE COURT: I didn't see anything in the first

4 page.

5 Any objection to this?

6 MR. NEVILLE: I object.

7 MR. TRABULUS: I object, too.

8 THE COURT: Objection sustained. I will not

9 allow it. There is nothing here until the third page when

10 Mr. Marsh says at the top of page 3, we are scamming

11 people on the phone, and we all fucking know it, okay, he

12 is not comfortable with it, there's the bottom line, man.

13 Then Mr. Robbins says, I act like I am perfectly

14 comfortable with it.

15 MS. SCOTT: May I propose a solution, your

16 Honor?

17 THE COURT: This is an obvious come on -- most of

18 the talking is by Mr. Marsh, the confidential informant

19 here.

20 MS. SCOTT: Let me direct your attention to the

21 first paragraph on page 1, and that's Richard Pace

22 speaking, talking about what it is like to call a person

23 up, how nervous he gets, what he is thinking about
24 offering the person.
25 THE COURT: You want to put that in?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7365

1 MS. SCOTT: Yes.

2 THE COURT: I will let you put that in.

3 MS. SCOTT: Further down the page they discuss as

4 to whether they have a problem with it. Some say they

5 have a problem. And George Robbins talks about how he

6 deals with it. He says you have to modulate your voice --

7 you can't dance on the phone because they hear that in

8 your voice. That's when they think you are just another

9 telemarketer.

10 THE COURT: You can put that in.

11 MR. LEE: May I interject at this point and

12 inform your Honor, I think the same is true with Mr. Pace,

13 he was there for perhaps one month. And the first

14 paragraph is consistent with someone who is new and

15 nervous about how he is performing his functions on the

16 job. It might be misleading.

17 THE COURT: Objection overruled.

18 The reason I excluded the other statement is

19 because it made an obviously outrageous statement, without

20 knowledge and with sort of a tongue and cheek. And I am

21 talking about the 9,999.

22 Overruled. I will let it in.

23 You want the first page in?
24 MS. SCOTT: Yes, your Honor.
25 THE COURT: All right, first page.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7366

1 MR. SCHOER: We object to the Brooklyn Bridge

2 comment.

3 THE COURT: Objection overruled.

4 What do you have against the Brooklyn Bridge?

5 MR. SCHOER: I think the term, trying to sell

6 them the effin Brooklyn Bridge over here has real

7 connotations and sensational.

8 THE COURT: Overruled.

9 MS. SCOTT: The next one is 1383-E, which is a

10 conversation between, E as in Edward.

11 The conversation between Ron Marshisoto, Richard

12 Pace and George Robbins.

13 THE COURT: One minute.

14 MS. SCOTT: Richard Price is Richard Pace, the

15 same person we call Richard Pollito a salesman of the

16 company.

17 THE COURT: Who is the male voice.

18 MS. SCOTT: The male voice says one word and

19 unintelligible after that. We don't know who it is. It

20 may be Pace, it may be Pace-Pollito.

21 MR. TRABULUS: I object to this on the grounds

22 that --

23 THE COURT: I have to read it first.
24 MR. TRABULUS: I am sorry.
25 (Whereupon, at this time there was a pause in the

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7367



1 proceedings.)

2 THE COURT: I will not allow page 2, starting

3 with Ron Marsh, now, who did you ask this to, George

4 Robbins, etcetera, from that point on to the end, I don't

5 know what they are talking about. It is confusing, and

6 prejudicial unduly to Tara Garboski.

7 MR. JENKS: And page 3 with respect to Gordon.

8 MS. SCOTT: We don't object, your Honor.

9 THE COURT: All right, 1383, page 1, and the top

10 three lines of page 2. All right.

11 MR. SCHOER: My only concern with respect to

12 that, and I appreciate your Honor redacting that, but the

13 attribution right before we started, where it says 100

14 percent mailing list, she did say that, because I asked

15 her, she said when a member -- when someone has been

16 nominated from another member, that's a whole different

17 ball game, I believe the jury will believe that he is

18 speaking about a conversation he had with Ms. Garboski.

19 She is the only supervisor who is a female.

20 MS. SCOTT: Your Honor, that is just not the

21 case. There is no way to draw that conclusion.

22 THE COURT: I will make sure.

23 MS. SCOTT: They may be talking about another
24 salesperson for all you know.
25 THE COURT: This is what we will do. 100 percent

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7368

1 mailing list.

2 MS. SCOTT: It talks about how nominations make

3 it a whole different situation. It is not even an

4 entirely incriminating statement. It talks about yes,

5 there are mailing lists, but there are also nominations to

6 cause a very different selection process to call in.

7 The one word, "she" a person making a statement

8 about what the procedures are, it doesn't mean that it is

9 a supervisor.

10 MR. TRA BULUS: Look at this one and then look at

11 F, which is the next one, but according to the tape

12 counter marking precedes it. In 1383-F it is Ron Marsh

13 the informants, instructing George Robbins about mailing

14 lists. He is planting the idea in George Robbins mind,

15 and the male voice's mind that he was told about mailing

16 lists. You have to look at this in context. The tape

17 counter on F is 918, on 1383 it is 983. So you have to

18 look at the predecessor which preceded it, which is the

19 government informant telling people whom he is talking to,

20 telling people about mailing lists. It seems the whole

21 thing is unreliable.

22 THE COURT: Does the government wish to play

23 1383-F, for Fox?
24 MS. SCOTT: Yes, we do.
25 If you look at the first page of 1383-E, the

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7369



1 fourth statement down, George Robbins' statement, that's

2 the topic of the sentence in this conversation.

3 He says, do you remember what she said yesterday,

4 a nomination card, a person who is actually nominated from

5 another member. That's what they talk about in the

6 conversation. They are not talking about Ron Marsh's

7 comments, and I don't know when before that.

8 THE COURT: I will allow you to put in what I

9 said, the first page and the top parts of the second page

10 of 1383-E, for Easy, but I will redact, notwithstanding

11 the new Bruton case, this is risky, you see the bottom

12 line George Robbins -- we can't do that because it is on

13 tape, right?

14 MS. SCOTT: What are you talking about?

15 THE COURT: The 100 percent mailing list, she

16 will say, what I was going to say is to change it to I

17 haven't told. But it is on a tape.

1 8 MS. SCOTT: Your Honor, it is so speculative that

19 they would believe that this is Tara Garboski. There

20 is --

21 THE COURT: There are other women in the company,

22 not there?

23 MS. SCOTT: Yes, many.
24 THE COURT: All right, overruled. I will allow
25 it.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7370

1 MR. GEDULDIG: Can I ask a question?

2 Mr. Trabulus just brought up a point.

3 If the government is labelling these sections of

4 transcripts and tapes with letters, creating the

5 impression that they are being played, and we are

6 discussing them in a chronological order, and if that's

7 not the case, and if they are taking them, and section C

8 should go where section A is, and they are moving the

9 sections around and they are not in chronological order

10 they are taken out of context.

11 TH E COURT: That's all right unless it is

12 prejudicial. I see nothing prejudicial about it.

13 Let's take a look at 1383-F.

14 MS. SCOTT: For clarification, you are allowing

15 1333-A, the first paragraph on page 2 of that statement,

16 and the rest from Ron Marsh's statement is all redacted.

17 THE COURT: Yes.

18 MS. SCOTT: Thank you.

19 MR. SCHOER: For clarification, are we taking

20 this portion out of the transcripts that the jury has in

21 front of them.

22 MS. SCOTT: We will have to do it.

23 MR. TRABULUS: They don't have these yet.
24 MR. WHITE: We pulled them out of the book.
25 MR. SCHOER: Yes. Thank you.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7371

1 THE COURT: 1383-F for Fox, let me read it.

2 (Whereupon, at this time there was a pause in the

3 proceedings.)

4 THE COURT: Objection sustaine d. It is all talk

5 by Marsh. We don't need that here.

6 What else?

7 MS. SCOTT: Finally 1384 is the tape and 1384-A,

8 is the transcript.

9 Again, it is a conversation between Richard Pace

10 and the informant Ron Marshisoto and George Robbins.

11 THE COURT: Let me read it, please.

12 (Whereupon, at this time there was a pause in the

13 proceedings.)

14 THE COURT: I will not let in anything after

15 Richard Pace, you have to be. After that it is Marsh, you

16 are driving home again. The first part is spontaneous

17 apparently. I will allow it. The last entry will be,

18 Richard Pace, you have to be. The rest is excluded.

19 MS. SCOTT: Your Honor, is it possible to take

20 out Ron Marsh's statement and start up with the statement

21 by Robbins, I sleep well, knowing that --

22 THE COURT: No, because I think he is seducing

23 them into some o f these things. I will let the first
24 five, that's what is going in.
25 MS. SCOTT: Your Honor, the very first statement

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7372

1 of Richard Pace is at a different point in the tape than

2 the later conversation between George Robbins and Ron

3 Marsh.

4 THE COURT: All right.

5 MR. SCHOER: If that's so, the next four

6 attributions, the only person saying it is a scam is

7 Marsh.

8 MS. SCOTT: That's not so. The first line by

9 Robbins --

10 THE COURT: I will allow one, two, three, four,

11 five entries, and say that the first portion was separated

12 in time from the second -- from the latter portions.

13 MR. TRABULUS: I don't want to be too belated

14 about this, but we have transcripts of only portions of

15 this. We don't have here, and I don't have in my head

16 what immediately preceded some of this stuff. So it seems

17 to me, and I know we took up a fair amount of time, but

18 perhaps we ought to take up a little more time, and play

19 for your Honor to hear and all of us to hear about what

20 occurred in the minute before the beginning of each one of

21 these that they plan to play. I think they have the tapes

22 queued up so it will not take long to do that. We will

23 find I believe that this was driven by Mr. Marsh. This is
24 all when Mr. Marsh was there.
25 THE COURT: Don't you have all that? Don't you

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7373

1 have these tapes, the full tapes?

2 MR. TRABULUS: Your Honor, I do have the full

3 tapes, your Honor.

4 THE COURT: I must say I have not had a chance to

5 listen to them, with all the things I have been doing, I

6 haven't bee n able to focus on it. And had I listened to

7 them, your Honor, your Honor would have had to have heard

8 that portion anyway, because I certainly don't have

9 transcripts of those tapes. I think it is a reasonable

10 thing to do at this time. It will be a total of an extra

11 five or ten minutes.

12 MR. NEVILLE: Wasn't also Robbins considered

13 unreliable because he hadn't worked at the company for

14 long and here he pops up again?

15 THE COURT: Yes.

16 MS. SCOTT: You excluded 1383-C, the one

17 exaggerated tape by Robbins. The rest you let in.

18 THE COURT: That's exactly right. It is a good

19 analysis of what I did. An exaggerated person.

20 MR. NEVILLE: I join in Mr. Trabulus' respectful

21 request to the Court that we hear the preceding portions

22 of the tapes, because Marsh is the common denominator in

23 these tapes.
24 THE COURT: Have yo u concluded the tape?
25 MS. SCOTT: Yes.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7374

1 THE COURT: There are other tape recordings that

2 we need to play as well.

3 THE COURT: Let's play the other ones until

4 12:30, and we will give the defendants a chance during the

5 lunch hour to listen to the other tapes. And we will

6 conclude it in the afternoon.

7 Ready with the other tapes you have?

8 MS. SCOTT: Your Honor, the defense have had a

9 long time to listen to these tapes. The tapes were made

10 available for at least a year.

11 THE COURT: That's true. I just said that.

12 However, in view of the request, I believe it is a

13 reasonable request. What is the rush? We are taking all

14 this type anyway. You will put on what you have without

15 these. You have other tape recordings?

16 MS. SCOTT: We have oth er tapes to play, yes.

17 THE COURT: That will fill between now and the

18 lunch hour. During the lunch hour they will listen to the

19 tapes, the leading in portions that they say they want.

20 And we will come back at like a quarter after 1:00 and go

21 over that.

22 MS. SCOTT: One other clarification. Yesterday

23 your Honor admitted several exhibits as pieces of
24 commercial paper. They were copies of checks, and you
25 admitted them as business records. I was to come back and

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7375

1 give you precise list of what those exhibits are. I have

2 that list. There are six of them.

3 One is 13-E, 20-F, 58-A, 39-A, 40-E, and 47-E.

4 THE COURT: All right.

5 MS. SCOTT: Thank you.

6 THE COURT: Let's bring the jury in and go

7 through the rest of the tapes at this time, other than the

8 ones we went through just now.

9 One of the jurors requested to leave at 4:30 this

10 afternoon. I believe we will be able to accommodate that

11 juror.

12 MR. NELSON: Yesterday we heard that there was a

13 statement made with respect to Mr. Rubin. And I ask that

14 there be a limiting instruction that that statement is

15 attributable only to Mr. Rubin and not to the other

16 defendants on trial in this matter.

17 THE COURT: Any objection to that? I don't

18 recall what statement you are referring to?

19 MR. NELSON: A post arrest statement allegedly

20 made by Mr. Rubin when he was being transported from his

21 home to Who's Who Worldwide by Mr. Biegelman and Agent

22 Jordan.

23 THE COURT: What did he say in his statement?
24 MR. NELSON: That there were no nominations or
25 words to that effect.

HARRY RAPAPORT, CSR, CP, CM OFFI CIAL COURT REPORTER
7376

1 MR. WHITE: He admitted lying about various

2 subjects.

3 THE COURT: It is attributable to him and not the

4 other defendants?

5 MR. WHITE: Yes.

6 MR. NEVILLE: In that instruction I request you

7 state to the jury it was an alleged statement, and if the

8 jury believes it was uttered, that it is only admissible

9 as to Mr. Rubin.

10 THE COURT: Very well.

11 MR. WHITE: Your Honor, I don't know if you need

12 to put it that way. You can say you heard testimony with

13 regard to a statement. That statement is only worded with

14 respect to -- the way Mr. Neville phrased it is that your

15 Honor is perhaps doubting the testimony.

16 THE COURT: He picked up what I said yesterday

17 about something. But I will say the testimony of Rubin

18 offered yesterday.

19 Was this statement made in a car?

20 MR. WHITE: Yes, in the car following his

21 arrest.

22 THE CLERK: Jury entering.

23 (Whereupon, the jury at this time entered the
24 courtroom.)
25 THE COURT: I wished you good morning earlier.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7377

1 Now it is almost time for good afternoon.

2 Good afternoon.

3 Please be seated.

4 I want to thank you very much for your patience.

5 Every time I walked into the jury room I was greeted with

6 smiles and felt very much at home, instead of glares for

7 keeping you waiting, which I might be doing if I were in

8 your place.

9 I explained to you the necessity for holding you

10 up. We are ready to proceed.

11 First of all, I want to tell you that you heard

12 some testimony by Special Agent Jordan about a

13 conversation with Mr. Rubin.

14 This testimo ny is offered only against Mr. Rubin

15 himself and not any of the other defendants in this case.

16 You may proceed.

17 MR. WHITE: Your Honor, we will continue playing

18 some tapes.

19 THE COURT: One of the jurors wants to leave at

20 4:30. We will accommodate that juror.

21 MR. WHITE: The first tape is Exhibit 1339. The

22 transcript is 1339-A. The date is December 23rd, 1994.

23 The call is to Who's Who Worldwide and Sue Mantell.
24 (Whereupon, at this time there was a pause in the
25 proceedings.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7378

1 MR. JENKS: Can't hear it.

2 MR. NELSON: It is not working.

3 (Tape is played.)

4 MR. WHITE: Next is Exhibit 1349. The transcript

5 is 1349-A, for Abel. The date is February 2nd, 1995. The

6 call is to Sterling Who's Who and Scott Matthews.

7 (Tape is play ed.)

8 MR. WHITE: Next is 1357. The transcript is

9 1357-B, for Baker. The date is December 12th, 1994. The

10 call is to Sterling Who's Who and Barbara McCabe.

11 (Tape is played.)

12 MS. SCOTT: The next is 1364. The transcript is

13 1364-B, and the date is December 23rd, 1994. The call is

14 to Who's Who Worldwide and Greg Muller.

15 (Tape is played.)

16 MR. WHITE: Next is 1373. The transcript is

17 1373-A. The date is March 2nd, 1995. The call is to

18 Who's Who Worldwide and Alan Saffer.

19 (Tape is played.)

20 MR. WHITE: The next is 1301. The transcript is

21 1301-C, for Charley. The call is to Who's Who and

22 Madeline Bailey.

23 (Tape is played.)
24 MR. WHITE: The next is the same tape, 1301, the
25 transcript is 1301-D, for Dog. It is the same date and

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7379



1 same salesperson.

2 (Tape is played.)

3 MR. WHITE: Next is 1305. The transcript is

4 1305-B. The call is to Who's Who Worldwide, and the

5 date -- I am sorry -- let me start over again. 1305-B,

6 the date is September 6th, 1994, the call is to Who's Who

7 Worldwide and Roseanne Patton.

8 (Tape is played.)

9 MR. WHITE: Next on the same tape is transcript

10 1305-D. The date is the same, and the salesperson is the

11 same.

12 (Tape is played.)

13 MR. WHITE: 1307 is the exhibit, 1307-A is the

14 transcript, the date is October 24th, 1994. The call is

15 to Sterling Who's Who and Scott Matthews.

16 (Tape is played.)

17 MR. WHITE: Next is the same exhibit. The

18 transcript is 1307-D, for Dog, and the date and everything

19 else is the same.

20 (Tape is played.)

21 MR. WHITE: Next is 1309. The transcript is

22 1 309-C, for Charley. And the date is October 27th, 1994.

23 The call is to Sterling Who's Who and Andrea Franklin.
24 (Tape is played.)
25 MR. SCHOER: This is 1309-A.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7380

1 MR. WHITE: Yes, I read it incorrectly. It is

2 1309-A. And I will back it up to the beginning. I will

3 start it again from the beginning.

4 (Tape is played.)

5 MR. WHITE: Next is the same tape. The

6 transcript is 1309-C, for Charley. The same date and same

7 participants.

8 (Tape is played.)

9 MR. WHITE: The next is 1320. The transcript is

10 1320-B. The date is November 4th, 1994. The call is to

11 Sterling Who's Who and Patricia Brent.

12 (Tape is played.)

13 MR. WHITE: Next is 1329. The transcript is

14 1329-B. The date is December 12th, 1994. The call is to

15 Sterling Who's Who and M ark Johnson.

16 (Tape is played.)

17 MR. WHITE: The next is 1331, the transcript is

18 1331-A, the date is September 14th, 1994. The call is to

19 Sterling Who's Who and Scott Matthews.

20 (Tape is played.)

21 MR. NEVILLE: Your Honor --

22 THE COURT: Just one minute, please.

23 (Whereupon, at this time there was a pause in the
24 proceedings.)
25 THE COURT: Hold it for a minute, please.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7381

1 (Whereupon, at this time there was a pause in the

2 proceedings.)

3 THE COURT: Sorry to keep you waiting.

4 Yes, Mr. Neville.

5 MR. NEVILLE: I wanted to clarify, and I am sure

6 it was inadvertent. But some of the transcripts say Scott

7 Matthews, and some in the new series says just Scott. I

8 don't want the jury to be excused.

9 THE COURT: It obviously is not Scott Michaelson

10 because it is Sterling to begin with; is that right?

11 MR. NEVILLE: Right.

12 THE COURT: Members of the jury, did I get that

13 across?

14 (The jury answers in the affirmative.)

15 THE COURT: All right. Let's go.

16 (Tape is played.)

17 MR. WHITE: On the same exhibit we will also pay

18 1331-B, for Baker, the same date and the same

19 participant.

20 (Tape is played.)

21 MR. WHITE: Next is Exhibit 1334. The transcript

22 is 1334-B, for Baker. The date is December 19th, 1994.

23 And the call is to Who's Who Worldwide and Jill Barnes.
24 (Tape is played.)
25 MR. WHITE: The same exhibit, we are going to

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7382

1 play 1334-D, for Dog, and not B for Bake.

2 (Tape is played.)

3 MR. WHITE: Next is 1336. The transcript is

4 1336-B, for Baker. The date is December 20th, 1994. The

5 call is to Who's Who Worldwide and John Stevens.

6 (Tape is played.)

7 MR. WHITE: Next is the same exhibit, the

8 transcript is 1336-C, for Charley. And the dates and the

9 participants are the same.

10 (Tape is played.)

11 MR. WHITE: Next is Exhibit 1340. The transcript

12 is 1340-B, for Baker. The date is December 28th, 1994.

13 The call is to Who's Who Worldwide and Marilyn Pierce.

14 (Tape is played.)

15 MR. WHITE: Also on that exhibit we will pay

16 1340-A, for Abel, same date and participant.

17 (Tape is played.)

18 MR. WHITE: Next is Exhibit 1342. The transcript

19 is 1342-A, for Abel. The date is January 3rd, 1995. The

20 call is to Sterling Who's Who and Barbara McCabe.

21 (Tape is played.)

22 MR. WHITE: The next is 1354. The transcript is

23 1354-A, or Abel. The date is December 1s t, 1994. The
24 call is to Sterling Who's Who and Anthony Myers.
25 (Tape is played.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7383

1 MR. WHITE: Next on the same exhibit is 1354-B,

2 for Baker, the same date and participants.

3 (Tape is played.)

4 MR. WHITE: The next is 1356. The transcript is

5 1356-A, for Abel. The date is December 8th, 1994. The

6 call is to Sterling Who's Who and Mark Johnson.

7 (Tape is played.)

8 MR. WHITE: The next is 1363. The transcript is

9 1363-A, for Abel. The date is December 22nd, 1994. The

10 call is to Sterling Who's Who and Cathy Brady.

11 (Tape is played.)

12 MR. WHITE: Also on the same exhibit, is 1363-B,

13 for Baker, the same date and participants.

14 (Tape is played.)

15 MR. WHITE: Next is 1366. The tape -- transcript

16 is transcript 1366-A, the date is January 24th, 1995. The

17 call is to Who's Who Worldwide and Sue Mantell.

18 (Tape is played.)

19 MR. WHITE: On the same exhibit is 1366-B, for

20 Baker. It is the same date and participants.

21 (Tape is played.)

22 MR. WHITE: Next is 1369. The transcript is

23 1369-A, for Abel. The date is January 26th, 1995. The
24 call was to Sterling Who's Who and Michael Cain, C A I N.
25 (Tape is played.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7384

1 MR. WHITE: I will give it another try.

2 (Tape is played.)

3 MR. WHITE: I think it might have been

4 unintelligible with the speed varied.

5 We will try on that tape also 1369-B, for Baker.

6 (Tape is played.)

7 MR. WHITE: The next one is 1376. The transcript

8 is 1376-A, for Abel. The date is March 9th, 1995. The

9 call is to Sterling Who's Who and to Sam Christopher.

10 (Tape is played.)

11 MR. WHITE: Also on that date is 1376-B, for

12 Baker. Same date and same participants.

13 (Tape is played.)

14 THE COURT: I think we will take a recess at this

15 time.

16 Members of the jury we will recess until 1:45, 15

17 minutes later, because I have to discuss several things

18 with the lawyers. I don't want to keep you waiting

19 unnecessarily.

20 Please do not discuss the case among yourselves

21 or anyone else. Keep an open mind. Come to no

22 conclusions. We will recess until 1:45. Have a nice

23 lunch.
24 (Whereupon, at this time the jury left the
25 courtroom.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7385

1 THE COURT: Other than the tapes that counsel for

2 the defendants want to listen to, the other portions of

3 the tapes, the ones we discussed this mor ning, how many

4 other tapes do you have?

5 MR. WHITE: Maybe half a dozen, that's all.

6 THE COURT: In other words, within a half an hour

7 you will be through with them?

8 MR. WHITE: Yes. And I have a one-page or a

9 two-page stipulation to read.

10 THE COURT: That's it, other than the tapes we

11 discussed this morning?

12 MR. WHITE: Yes. I believe that's correct.

13 THE COURT: All right.

14 What I think I will do is -- what about the

15 defense? Are you ready to proceed today, or do you want

16 to go over until tomorrow?

17 MR. TRABULUS: We would certainly want to go over

18 until tomorrow -- when you say ready to proceed, you mean

19 with the Rule 29 motion?

20 THE COURT: That we will have this afternoon. I

21 may let the jury go until Wednesday morning.

22 MR. TRABULUS: That's probably a good idea.

23 THE COURT: See you at 1:30 . You will be here at
24 1:30.
25 (Luncheon Recess.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7386

1 A F T E R N O O N S E S S I O N.

2 THE COURT: Where are the rest of the defendants

3 and the lawyers?

4 Will somebody go out and take a look for them,

5 please.

6 Have you had an opportunity to hear the tapes?

7 MR. TRABULUS: Your Honor, we are nearly

8 finished, we are on the very last one. With regard to the

9 other ones, there is only one I would have an additional

10 comment and bring forth additional grounds for exclusion,

11 but we were listening to the very last one.

12 THE COURT: Why don't you finish the last one.

13 How long will that take?

14 MR. TRABULUS: Two minutes at most.

15 THE COURT: Go ahead.

16 (Pause in proceedings.)

17 MR. DUNN: Your Honor, just one minute, please.

18 (Pause in proceedings.)

19 THE COURT: Now that defense counsel have had an

20 opportunity to again go over the tapes, I assume they had

21 the opportunity to go over it during the months they had

22 the tapes, what, if anything, do you have to say?

23 MR. DUNN: I think it is the position of the
24 defense in the words that are leading up to what the
25 government was to introduce, it seems that Mr. Marsh's

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7387

1 leading on and creating an atmosphere to set people up

2 what to say. In discussion with a couple attorneys we

3 think it might be advisable for the Court to listen to a

4 couple of minutes that precedes this.

5 THE COURT: What part?

6 MR. TRABULUS: I think what we just heard. It is

7 on 1384-A, Your Honor. 1384-A is in two sections. You

8 see some stars there. It precede s the second section.

9 THE COURT: 1384-A is the last tape.

10 MR. TRABULUS: The last one, Your Honor. I think

11 Your Honor indicated that it would come up to the point

12 where Mr. Marsh says doesn't it.

13 You will hear Mr. Marsh starts to say that this

14 -- he's saying that I doubt very much the real Who's Who

15 Marquis does this. He says I was told this was the

16 biggest and I doubt that that was the oldest. I mean,

17 he's telling them that things that they may have been told

18 are false, and then after that you hear one of them well,

19 we're scamming somebody.

20 MR. NEVILLE: Your Honor, Mr. Marsh's voice is

21 the strongest of the voices because the mike is on him and

22 he has a very gruff way about it and he's leading this

23 conversation.
24 MR. WHITE: Since we are all giving our
25 commentary you will notice Mr. Robins was the first



HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7388

1 talking about we're ripping people off.

2 MR. TRABULUS: After he's been told that we've

3 been lied to.

4 THE COURT: Okay.

5 MR. WHITE: I'm not sure how far back you want to

6 play it.

7 MR. TRABULUS: It was about two minutes ago.

8 MR. WHITE: It doesn't help me.

9 MR. TRABULUS: I thought you were looking at the

10 counter.

11 MR. WHITE: Well, let's play what immediately

12 precedes it and then we'll go back. Is that what you

13 want?

14 MR. TRABULUS: I would like to play like the two

15 or three minutes that preceded the second part of 1384-A,

16 the three minutes.

17 MR. WHITE: Like I said the machine doesn't go in

18 minutes.

19 MR. TRABULUS: Well, how many numbers are in a

20 minute? That should be standard.

21 MR. WHITE: No, that' s not standard.

22 MR. TRABULUS: The speed that it's set at should

23 also be standard.
24 MR. WHITE: That's also not the case.
25 THE COURT: Counsel, play it. Go back a period

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7389

1 of time and play it, will you.

2 MR. WHITE: I don't know how far back, Your

3 Honor.

4 THE COURT: They'll tell you if they want it back

5 further. Start it off.

6 MR. WHITE: Okay.

7 (Audiotape played.)

8 (Start and stop.)

9 THE COURT: Stop it.

10 Do you want it back more?

11 MR. TRABULUS: A little bit more.

12 MR. WHITE: A little bit more.

13 THE COURT: I don't know what the calibration is

14 on that machine but put it back for some period of time.

15 (Audiotape played.)

16 (Start and stop.)

17 THE COURT: Is that Mr. Marsh?

18 MR. WHITE: No, Yo ur Honor, that's Mr. Pace.

19 THE COURT: When Mr. Marsh appears, raise your

20 hands, will you.

21 MR. WHITE: So far all he has said was "yep."

22 But I'll raise my hand.

23 THE COURT: He wasn't very loud when he said
24 that.
25 (Audiotape played.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7390

1 (Start and stop.)

2 THE COURT: Is the next item the one you want to

3 play?

4 MR. WHITE: No, Your Honor. The last thing we

5 just heard is what we want to play.

6 MR. TRABULUS: The very last two lines.

7 THE COURT: I find nothing overly suggestive

8 about this conversation, nothing at all. As a matter of

9 fact, one of the other people said "not the original, not

10 the biggest," someone else said something like that. I

11 don't find that that is suggestive or overly enticing or

12 entrapping or sed ucing at all.

13 Anything else?

14 MR. TRABULUS: With regard to the first two lines

15 on 1342-A, there the situation is a little bit different.

16 It's the context. If you listen to what precedes that,

17 you'll hear this guy Pace is complaining when he's kind of

18 kept in the dark and he says he can't get a straight

19 answer. So he's not saying that he believes he's scamming

20 and bullshiting, the implication is that he doesn't know.

21 I mean, I leave that to other counsel to make a comment.

22 Read in isolation, that is misleading.

23 THE COURT: I disagree. I'll overrule your
24 objections. I'll let them play it as I originally said.
25 Anything else in the tapes?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7391

1 MR. TRABULUS: With regard to 1382-A, they wait

2 for Tara to leave, wait for a supervisor to leave and I

3 believe it is Marsh that initiates a game where he

4 pretends to make a phone call to somebody else, gets to

5 say parts of the pitch and then they start extemporizing.

6 THE COURT: I overrule your objection. You

7 stated for the record repeatedly most of them your

8 objections. I'm overruling to the extent that I'm doing

9 that, I've redacted certain portions as I've previously

10 stated.

11 We're ready to go and bring in the jury.

12 MR. SCHOER: Judge, does the government have the

13 new transcripts? Might I look at them before they hand

14 them to the jury so they conform with Your Honor's

15 determination.

16 THE COURT: I don't know if they had an

17 opportunity to redact them.

18 MR. WHITE: Yes, we did.

19 THE COURT: Show them to Mr. Schoer.

20 MR. NEVILLE: Your Honor, how are we handling the

21 fact that Mr. Marsh is the undercover?

22 THE COURT: I'll tell them that.

23 (Jury enters.)
24 THE COURT: Good afternoon, members of the jury,
25 and I do mean afternoon. Have a seat.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7392

1 Now that you've had a chance to have a large

2 sumptuous lunch, a banquet perhaps, I certainly

3 underestimated what we had to do and the lawyers in this

4 case have been very diligent. They are not responsible in

5 any way for any of the waiting, I am. So I want you to

6 know that.

7 All right. Let's proceed.

8 MR. WHITE: Your Honor, again we'll continue with

9 some tapes. The first one is 1390-D, rather 1390. The

10 transcript is 1390-D, for Dog.

11 The date is December 23, 1994, and it is a

12 conversation recorded by an informant at Who's Who

13 Worldwide.

14 (Audiotape played.)

15 (Start and stop.)

16 MR. WHITE: Next will be 1396. The transcript is

17 1396-A, for Able. The date is January 6, 1995.

18 It's a conversation recorded by an informant at

19 Who's Who Worldwide.

20 (Audiotape played.)

21 (Start and stop.)

22 MR. WHITE: Next is 1397. The transcript is

23 1397-A, for Able.
24 The date is January 11, 1995, and this was
25 recorded by an informant at Who's Who Worldwide.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7393

1 (Audiotape played.)

2 (Start and stop.)

3 MR. LEE: At this pause I have an application as

4 to the name in the Exhibit 1397-A, it says Laura. That is

5 not Laura Weitz here on trial.

6 THE COURT: Is that correct, Mr. White?

7 MR. WHITE: I don't know who the Laura is.

8 THE COURT: Well, it says this is her first day.

9 MR. WHITE: That's what I mean. I'm assuming

10 that is not the defendant.

11 THE COURT: Well, it's not the defendant Laura

12 Weitz; is that correct?

13 MR. WHITE: I don't believe so, no.

14 THE COURT: Members of the jury, it's not the

15 defendant Laura Weitz.

16 (Audiotape played.)

17 (Start and stop.)

18 MR. WHITE: Next is 14-01. The date is February

19 9, 1995. I'm sorry, the transcript is 14-01-A, for Able.

20 Recorded by an informant at Who's Who Worldwide.

21 (Audiotape played.)

22 (Start and stop.)

23 MR. WHITE: I'm just fast forwarding to the next
24 part of the transcript.
25 (Start and stop.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7394

1 MR. WHITE: Next is 14-03. The transcript is

2 14-03-A, the second part. We played the first part of

3 14-03-A. We'll be picking up in the middle of page 2 in

4 that transcript.

5 The date is February 15, 1995, and recorded by an

6 informant at Who's Who Worldwide.

7 (Audiotape played.)

8 (Start and stop.)

9 MR. WHITE: Your Honor, the next two tapes that

10 we have are the ones that we have the transcripts for the

11 jury that wasn't previously in their books.

12 THE COURT: The ones we discussed earlier?

13 MR. WHITE: Yes.

14 THE COURT: Very well.

15 MR. NEVILLE: Your Honor, before we start the

16 tape, will Your Honor discuss this?

17 THE COURT: Yes.

18 Are you ready to go?

19 MR. WHITE: Yes.

20 THE COURT: What tape will you start with?

21 MR. WHITE: 1382.

22 THE COURT: Members of the jury, do you have

23 1382-A? That's the transcript, correct, Mr. White?
24 MR. WHITE: Yes.
25 THE COURT: Members of the jury, I instruct you

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
73 95

1 that on this tape there's a person named Ron Marsh. He is

2 a confidential informant that obtained employment with

3 Who's Who Worldwide Enterprises. Bear in mind he is a

4 confidential informant who is tape-recording this.

5 Also this evidence is only offered against the

6 defendant Who's Who Worldwide Enterprises, Inc., not

7 against any other defendant.

8 In addition, you'll see the three asterisks which

9 show that there's additional tape that was made that was

10 not set forth in this transcript. So it doesn't follow

11 consecutively. The first two entries are together and

12 then there's a space, a period of time, and then the last

13 entry.

14 You may proceed.

15 MR. NELSON: Your Honor, I also asked for an

16 instruction as it related to Mr. Osman and his recordings.

17 THE COURT: That he was not employed at the

18 time?

19 MR. NELSON: That's correct.

20 THE COURT: I also instruct you at the time that

21 these conversations were recorded, the defendant Oral

22 Frank Osman, also known as Frank Martin, was not employed

23 by the defendant Who's Who Worldwide Enterprises.
24 You may proceed.
25 MR. WHITE: We'll now play the first part of

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7396

1 1382-A.

2 (Audiotape played.)

3 (Start and stop.)

4 MR. WHITE: The next tape we'll play is 1383.

5 THE COURT: You'll not play the second part of

6 1382-A, for Able?

7 MR. WHITE: I thought Your Honor's instructions

8 were to play them separately. I'll go ahead, if that's

9 okay.

10 THE COURT: I instructed the jury that they would

11 be taken at a separate time, so I think you can play it

12 now.

13 MR. WHITE: Okay.

14 (A udiotape played.)

15 (Start and stop.)

16 MR. WHITE: This will be the second part of

17 1382-A.

18 THE COURT: Taken at a different time, members of

19 the jury.

20 (Start and stop.)

21 MR. WHITE: Now we'll go to 1383. The transcript

22 is 1383-A, as in Able.

23 THE COURT: I have 1383-B, for Baker. Is that
24 wrong?
25 MR. WHITE: There's a series of 1383's, Your

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7397

1 Honor. Do you want me to hand up the new set we've

2 prepared at lunchtime?

3 THE COURT: Well, we didn't discuss 1383-A, for

4 Able, correct?

5 MR. WHITE: That's correct, because if you look

6 at participants, it wasn't in issue.

7 THE COURT: Okay. Then you'll play that.

8 Go ahead.

9 Here again Ron Marsh is a confidential informant

10 who was employed and making the ta pe-recording.

11 MR. WHITE: Your Honor, do you have 1383-A or do

12 you need a copy of it?

13 THE COURT: I have it.

14 (Audiotape played.)

15 (Start and stop.)

16 THE COURT: What's happening, Mr. White?

17 MR. WHITE: We're just trying to find the right

18 space in the course of all the changes we've made.

19 (Pause in proceedings.)

20 MR. WHITE: Now we're ready to go on with 1383-A.

21 (Audiotape played.)

22 (Start and stop.)

23 MR. WHITE: Your Honor, the next one is one, if
24 the jury can remove its earphone, we have to forward it to
25 the right place in light of our discussion this morning.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7398

1 THE COURT: Okay.

2 MR. NEVILLE: Your Honor, I'm sure that the

3 earphones are completely off, but sometimes you can hear

4 it from a distance.

5 THE COURT: I think everybody ought to take them

6 off because you can hear these things. I've excluded

7 testimony, rather this tape-recording.

8 MR. WHITE: Now we have it set.

9 THE COURT: Before you do that, I'm again

10 instructing the jury in this tape-recording Ron Marsh is a

11 confidential informant who obtained employment with Who's

12 Who Worldwide.

13 It's offered only against the corporation Who's

14 Who Worldwide Enterprises and the time that this was made

15 the defendant Osman, also known as Frank Martin, was not

16 an employee at Who's Who Worldwide.

17 You may proceed.

18 (Audiotape played.)

19 (Start and stop.)

20 MR. WHITE: Next is the same tape 1383. Now

21 we'll go to the transcript which is 1383-D, as in Dog.

22 THE COURT: You are not going to C as in

23 Charlie?
24 MR. WHITE: No, Your Honor.
25 THE COURT: Oka y.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7399

1 Again, Ron Marsh is the confidential informant

2 and the defendant Osman, Frank Martin, was not employed at

3 the time. The evidence is only offered against the

4 corporation Who's Who Worldwide Enterprises.

5 MR. WHITE: I'm sorry, I wonder if the jury could

6 take their earphones off. The number is off on the

7 counter a little. I want to make sure we start at the

8 right place.

9 Okay. Now we've got it set.

10 THE COURT: This is 1383-D, for Dog.

11 MR. WHITE: Yes.

12 Your Honor, I think we better follow the same

13 procedure to make sure we start at the same place.

14 THE COURT: Where are you going now?

15 MR. WHITE: 1383-3, as in Echo.

16 Now we're set.

17 THE COURT: Again, Ron Marsh is a confidential

18 informant. The evidence is offered against Who's Who

19 Worldwide Enterprises and the defendant Osman, also known

20 as Frank Martin, was not employed at the time.

21 (Audiotape played.)

22 (Start and stop.)

23 MR. WHITE: Your Honor, the next one is 1384.
24 The transcript is 1384-A.
25 Once again, I think we better make sure it is

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7400

1 cued up to the right point.

2 (Audiotape played.)

3 (Start and stop.)

4 MR. NEVILLE: Your Honor, this again is Ron

5 Marsh.

6 THE COURT: Yes. This next tape-recording

7 involves Ron Marsh, the confidential informant.

8 Wait a minute. It involves Ron Marsh, the

9 confidential informant. The evidence is only offered

10 against the defendant Who's Who Worldwide Enterprises, and

11 the defendant Osman, also known as Frank Martin, was not

12 employed at the time.

13 You may proceed.

14 MR. WHITE: I still didn't cue it up exactly

15 here.

16 THE COURT: Oh, okay.

17 Also there are two segments on this transcript.

18 There are different times. In other words, you see the

19 three asterisks which indicate that there was a second

20 section which was recorded at a different time than the

21 first section, not consecutively.

22 MR. WHITE: Now, Your Honor, we'll play the first

23 excerpt on 1384-A.
24 (Audiotape played.)
25 (Start and stop.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
7401

1 MR. WHITE: The next one we'll play is the second

2 entry on 1384-A, and again, we'll have to make sure it is

3 cued to the right part first.

4 MR. NEVILLE: Your Honor, may we approach on that

5 last tape?

6 THE COURT: No. You may play the tape first and

7 then you may approach.

8 MR. WHITE: Your Honor, maybe if Mr. Neville

9 wants to approach you should do this. I have a question

10 how to do this.

11 THE COURT: All right. Come up.

12 (Side bar.)

13 MR. NEVILLE: Your Honor, I could be mistaken,

14 but I'm referring to 1384-A, where the first attribution

15 to Richard Pace, he makes a statement. Immediately

16 following that I heard Ron Marsh's voice, something about

17 scamming and bullshit from Ron Marsh.

18 THE COURT: I heard a voice after that.

19 MR. WHITE: He repeated what he said.

20 THE COURT: That was not on the tape, on the

21 transcri