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Trial Transcript
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2280
1
2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
3 - - - - - - - - - - - - - - X
4
UNITED STATES OF AMERICA, : CR 96 1016(S-1)
5
v. : U.S. Courthouse
6 Uniondale, New York BRUCE W. GORDON, WHO'S WHO
7 WORLD WIDE REGISTRY, INC., :
STERLING WHO'S WHO, INC.,
8 TARA GARBOSKI, ORAL FRANK OSMAN, LAURA WEITZ, ANNETTE
9 HALEY, SCOTT MICHAELSON, : The Wizard,, and MARTIN
10 REFFSIN, :
TRANSCRIPT OF TRIAL
11 Defendants. : February 2, 1998
12 - - - - - - - - - - - - - - X 9:30 o'clock a.m.
13
14 BEFORE:
15 HONORABLE ARTHUR D. SPATT, U.S.D.J. 16
APPEARANCES: 17 For the Government: ZACHARY W. CARTER
18 United States Attorney One Pierrepont Plaza
19 Brooklyn, New York 11201
By: RONALD G. WHITE
20 CECIL SCOTT
Assistant U.S. Attorneys
21 For the Defendants: NOR MAN TRABULUS, ESQ.
22 For Bruce W. Gordon
170 Old Country Road, Suite 600
23 Mineola, New York 11501
24 EDWARD P. JENKS, ESQ.
For Who's Who, Sterling
25 332 Willis Avenue
Mineola, New York 11501
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2281
1
GARY SCHOER, ESQ.
2 For Tara Garboski
6800 Jericho Turnpike
3 Syosset, New York 11791
4 ALAN M. NELSON, ESQ.
For Oral Frank Osman
5 3000 Marcus Avenue
Lake Success, New York 11042
6
WINSTON LEE, ESQ.
7 For Laura Weitz
319 Broadway
8 New York, New York 10007
9 MARTIN GEDULDIG, ESQ.
For Annette Haley
10 400 South Oyster Bay Road
Hicksville, New York 11801
11
JAMES C. NEVILLE, ESQ.
12 For Scott Michaelson
225 Broadway
13 New York, New York 10007
14 THOMAS F.X. DUNN,
For The Wizard,
15 150 Nassau Street
New York, New York 10038
16
JOHN S. WALLENSTEIN, ESQ.
17 For Mart in Reffsin 215 Hilton Avenue
18 Hempstead, New York 11551
19
Court Reporter: Owen M. Wicker, RPR
20 United States District Court
Two Uniondale Avenue
21 Uniondale, New York 11553
(516) 292-6963
22
23 Proceedings recorded by mechanical stenography, transcript
produced by computer-assisted transcription.
24
25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2282
1 (Case called.)
2 MR. WHITE: Your Honor, before the jury comes in
3 I wanted to ask the Court's permission if we could
4 interrupt the testimony again of Agent Rosenblatt and put
5 on a couple other witnesses. Among the ones I told the
6 defense attorney would be in here today, two witnesses
7 have to leave town tonight, they are in from out of town,
8 and I would imagine if we wait until we finish
9 Mr. Rosenblatt they may not get on today.
10 THE COURT: Yes.
11 MR. WHITE: Thank you.
12 (Jury enters.)
13 THE COURT: Good morning, members of the jury.
14 Please be seated.
15 Again, my compliments. It was 9:30 on the nose
16 when we got the signal. Of course for a few days you were
17 here even before 9:30, that's even better than 9:30, but
18 I'll settle for 9:30.
19 I have distressing news for you. You will not be
20 here on Friday. I would like to have you here on Friday,
21 you know that because I like to keep the trial going and I
22 like your company besides. But try as I could, I could
23 not arrange my schedule to do away with all the other
24 cases that I already put on for Friday that are clamoring
25 for my attention while I'm busy for this trial.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2283
Rieger-direct/Scott
1 So we'll not be working on this trial on Friday.
2 You may make arrangements to go to work.
3 All right. You may proceed.
4 MS. SCOTT: Thank you, Your Honor.
5 The government calls Rita Rieger.
6 R I T A R I E G E R , having been first duly sworn by
7 the Clerk of the Court, was examined and testified as
8 follows:
9 THE WITNESS: My name is Rita Rieger,
10 R-I-E-G-E-R.
11 THE COURT: Members of the jury, I told you that
12 we will interrupt from time to time to take another
13 witness. This is one of the occasions we are
14 interrupting. Mr. Rosenblatt, as you remember, was on the
15 stand.
16 DIRECT EXAMINATION
17 BY MS. SCOTT:
18 Q Good morning, Ms. Rieger.
19 Can you tell us where you live?
20 A Folsom, California.
21 THE COURT: How do you spell that?
22 THE WITNESS: F-O-L-S-O-M. Outside Sacramento.
23 THE COURT: Okay.
24 BY MS. SCOTT:
25 Q And what do you do for a living?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2284
Rieger-direct/Scott
1 A I'm a pharmacist.
2 Q What does your job involve?
3 A Interpreting prescriptions, returning medications and
4 dispensing them with information to the patient.
5 Q How long have you been doing that?
6 A Since 1959.
7 Q Have you ever been contacted by a company called
8 Who's Who Worldwide?
9 A Yes, I have.
10 Q And did you eventually purchase a membership from
11 them?
12 A Yes, I did.
13 Q Can you tell us approximately when you were first
14 contacted by them?
15 A I think it was 1993.
16 Q And how were you contacted?
17 A By telephone at work.
18 Q How many times were you contacted?
19 A More than once, and I can't be sure -- I can't be
20 sure of the total number of times.
21 Q How is it that y ou remember you were contacted at
22 work?
23 A Because it is unusual to be approached about a
24 business proposition of any kind at work.
25 Q Do you remember the name of the person who called
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2285
Rieger-direct/Scott
1 you?
2 A I thought he said his name was Michael.
3 Q What happened in the course of your conversations
4 with him?
5 A I believe the first time he called, it was not a good
6 time to talk because of the flow of our business, and I
7 asked him if he could call me back and he did.
8 Q And when you -- did you eventually --
9 MR. LEE: Your Honor, I have an objection.
10 THE COURT: Objection to which, the last
11 question?
12 MR. LEE: As to statements of someone that may
13 qualify as hearsay unless there is a foundation laid for
14 that foundation coming in.
15 THE COURT: Well, you will have to identify who
16 this was.
17 MS. SCOTT: Your Honor, I believe it has been
18 established that the call came from Who's Who Worldwide or
19 at least that the person identified themselves as
20 representing Who's Who Worldwide.
21 THE WITNESS: That's correct.
22 THE COURT: They did?
23 THE WITNESS: Yes, they did.
24 THE COURT: All right. Overruled.
25 BY MS. SCOTT:
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2286
Rieger-direct/Scott
1 Q Now, did you eventually have a conversation with this
2 person?
3 A Yes, I did.
4 Q What happened in that conversation?
5 A Well, this individual told me that I had been
6 nominated by a known benefactor.
7 THE COURT: You say the name of the person who
8 spoke to you was Michael?
9 THE WITNESS: That's as I recall it.
10 THE COURT: You don't know the last name or any
11 other name for the person?
12 THE WITNESS: I can't retrieve that information.
13 It's in moving boxes. I have it written down or I can't
14 find it.
15 THE COURT: And you don't remember where it is?
16 THE WITNESS: No, Your Honor.
17 THE COURT: Come up, Counsel.
18 (Side bar.)
19 THE COURT: Since I assume this is going to be
20 similar testimony by a number of witnesses, how do you
21 propose to get it in although it is from Who's Who
22 which is a defendant in the case. You have to identify
23 somebody who said this who would be authorized or at least
24 in the course of whose employment they would make that
25 statement. Can't be just a person named -- who is
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2287
Rieger-direct/Scott
1 Michael.
2 MS. SCOTT: Your Honor , this is a typical call
3 from an unknown person to sell a product and I think most
4 of the witnesses will not be able to remember the name of
5 the person they spoke with. What we'll be able to offer
6 is documents they received as follow up to the telephone
7 calls.
8 THE COURT: You better offer the documents --
9 well, I assume you are offering this under 801(d)(2).
10 MR. WHITE: Yes, as both a corporate admission
11 and as a co-conspirator statement, Your Honor.
12 THE COURT: But you have to identify somebody.
13 You can't say I'm from Who's Who Worldwide and I confess
14 to four murders. That will not fly with me.
15 Let's look at the rule.
16 MR. WHITE: Okay.
17 THE COURT: The rule says, because this is going
18 to be repetitious and we might as well iron it out right
19 now.
20 The rule says statements that are not hearsay, if
21 th e statement is not hearsay if, subdivision (2), a
22 statement is offered against a party and is a statement by
23 the party's agent -- who am I talking to, the both of you.
24 MR. WHITE: Yes.
25 MS. SCOTT: Yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2288
Rieger-direct/Scott
1 THE COURT: Within the scope of the agency or
2 employment made during the existence of the relationship,
3 or a statement by a co-conspirator of a party.
4 Now, let's look at what the law is on this agent
5 and employees. (Perusing.)
6 According to the authoritative test,
7 Weissenberger's on Federal Evidence, did I tell you that
8 was authoritative before?
9 MR. WHITE: Yes, I did.
10 THE COURT: The proponent of the vicarius
11 admission must establish a foundation that demonstrates
12 that the declarant at the time of the making of the
13 statement wasn't an employee or the agent of the party
14 against whom the statement was offered. For example,
15 statements made after the employment has concluded do not
16 qualify.
17 Now otherwise you meet the rule, but I'm unsure
18 about whether some -- a party we don't know about, not
19 identified that that's within 801(d)(2). You say you have
20 some corroborating material.
21 MS. SCOTT: We have exhibits which have been
22 received in connection with this deal she made on the
23 telephone, this witness.
24 MR. WHITE: Your Honor, there are two different
25 issues. With respect to the corporate admission, I think
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2289
Rieger-direct/Scott
1 even if we don't identify the person yet, we can, but even
2 if we don't yet, the circumstances suggest the facts that
3 form the foundation,. In other words, someone calls up,
4 identifies themselves, at least she remembers only part of
5 the name, says they are from Who's Who Worldwide, conduct
6 a discussion which is toward the view of purchasing a
7 membership. He tells the customer all the things we'll
8 subsequently know who are the basic sales pitch of Who's
9 Who. The customer consummates a transaction, the customer
10 gives the credit card number and shortly thereafter
11 receives confirmation in the mail.
12 THE COURT: You are talking very rapidly and you
13 are losing me.
14 MR. WHITE: I'm sorry.
15 THE COURT: My mind, as I told you a number of
16 times which apparently you don't believe, my mind doesn't
17 work as fast as you do.
18 MR. WHITE: Your Honor, this is the first time
19 during the entire trial you asked me to slow down.
20 THE COURT: Then join the crowd.
21 So under your theory, if a janitor picked up the
22 phone and called this lady and said I want to sell you a
23 trip to the moon or give you a trip to the moon if you buy
24 this, do you think this will be admissible?
25 MR. WHITE: No, Your Honor, but the fact it is
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2290
Rieger-direct/Scott
1 followed up in the normal course but he takes her credit
2 card number, she gets an invoice, she gets certain things,
3 that suggests the regularity of it, that was someone who
4 was authorized to make the sale. I would add as well on
5 this one there are internal company documents, documents
6 this customer does not see that identifies the person who
7 made the sale.
8 MR. JENKS: Except how will he get them in? I
9 will not stipulate to them and not in the regular course
10 of business. You should have someone from Who's Who
11 Worldwide.
12 THE COURT: You have to talk like a technician.
13 Right now I have doubt whether this call from an unknown
14 person will satisfy the rule. You are using this for the
15 most incriminating material. This is the real substance
16 of the case and I'll not allow it at this time unless you
17 show who this is.
18 MR. WHITE: Your Honor, let me back up further.
19 On this particular one, the internal paperwork of the
20 company indicates that the salesperson who spoke to
21 Ms. Rieger was Scott Michaelson, one of the defendants.
22 She just remembers the guy as "Michael."
23 THE COURT: You better lay a foundation by
24 bringing that material in. If you want to bring this
25 conversation in, I'm telling you now I will not allow it
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2291
Rieger-direct/Scott
1 unless you identify who it was.
2 MR. WHITE: You are talking on the corporate
3 admission theory?
4 THE COURT: On either admission, corporate or
5 individual. They are individuals also, they can make
6 admissions.
7 MR. WHITE: Your Honor, I don't think it is
8 necessary that the person has to specifically, you know,
9 identify who they are to you.
10 THE COURT: You don't, but I do.
11 MR. LEE: Judge, I think --
12 THE COURT: You show me a case that says an
13 unknown person calls up and makes these statements for a
14 corporation. Show me a case like that. I'm not going to
15 allow it.
16 MR. WHITE: Wait, Your Honor. It's not so much
17 that the person is unknown. I thought Your Honor's
18 objection, Your Honor's identification where it was
19 lacking was we haven't shown that the person had authority
20 to do that.
21 THE COURT: That's only part of it. I don't even
22 know who this person is. It's an unknown person. You
23 will have this unknown person making all of these
24 admissions? Not with me you're not. Especially when you
25 say you can identify the person.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2292
Rieger-direct/Scott
1 MR. WHITE: But Your Honor I think when a person
2 calls up under those circumstances, the circumstances
3 suggest that they were authorized to do that. If, for
4 example, they called up and then nothing ever happened,
5 this person was lied to and nothing ever happened, you
6 might suggest maybe the person was unauthorized, maybe
7 they were the janitor as you said.
8 But where the sale is actually consummated, where
9 the person is following a script and then the normal
10 business paperwork confirming the sale is received by the
11 customer, I think all the cir cumstances suggest that the
12 person was authorized.
13 THE COURT: I don't see any circumstances at this
14 point that anybody -- it's not a question only of
15 authorization, it's a question of identification of a
16 person. This could be a complete stranger calling up, and
17 I'm sure it isn't, but I don't know who this is and I'm
18 not going to allow it, period.
19 MR. WHITE: But, Your Honor, is it not also from
20 the face of it a co-conspirator's statement? In other
21 words, what she --
22 THE COURT: Not an unknown person it isn't.
23 MR. WHITE: But, Your Honor, it's not unknown
24 yet. It is someone named Michael who is a salesman at
25 Who's Who Worldwide.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2293
Rieger-direct/Scott
1 THE COURT: Who said he was a salesman for
2 Barbara Walters Worldwide. I don't know who he is.
3 MR. WHITE: She would testify that he called up
4 to sell her a membership, and that's what it is.
5 THE COURT: Mr. White, let's not prolong this.
6 You've heard my ruling and there is nothing you've told me
7 that will change it. You have to identify those people.
8 If you want their conversations to come in you will have
9 to identify them.
10 MR. JENKS: Further, Judge --
11 THE COURT: You want to talk me out of it?
12 MR. JENKS: No.
13 THE COURT: I see.
14 MR. JENKS: I'm going to make the next
15 objection. He's going to try to introduce the witness
16 with corporate documents and receipts, which I assume is
17 the next part of this witness' testimony. Unless those
18 corporate documents, records and receipts are shown to be
19 made within the regular course of business of Who's Who
20 Worldwide Registry, Inc., and it was the regular course of
21 business of Who's Who Worldwide to maintain and keep the
22 records, I object to the documents as hearsay.
23 He has to have a document custodian to introduce
24 the documents. The mere fact she got a bill in the mail
25 is not indicative of anything.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2294
Rieger-direct/Scott
1 THE COURT: We will see when they are offered.
2 MR. NELSON: Your Honor, if I might. Alan
3 Nelson.
4 Your Honor, I have a separate objection to raise
5 as it relates to my client Frank Osman.
6 THE COURT: Good. I might consider it and rule
7 otherwise on the whole thing if you talk me out of it.
8 MR. NELSON: That's not my intention, Judge.
9 Mr. Osman has alleged to have been a member of
10 the conspiracy from up to a period of time in November of
11 1992 and not to agree to join the conspiracy up until
12 November of 1994. These documents based upon a review of
13 the documents indicate they were prepared sometime in 1993
14 when he would not have been a member of the conspiracy.
15 THE COURT: So what?
16 MR. NELSON: I object to their admission as it
17 relates to him.
18 THE COURT: Overruled. He can go out of the
19 conspiracy, come back and join it for one hour and be
20 criminally liable for everything.
21 MR. NELSON: Not unless he adopts what prior
22 happened.
23 THE COURT: No, if he knowingly and willfully
24 joined the conspiracy, not for an hour, for a minute.
25 MR. NELSON: I understand, but the government
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2295
Rieger-direct/Scott
1 would have to demonstrate he reentered with knowledge.
2 THE COURT: I understand, willingly,
3 intentionally, knowingly, any other words? If he knew
4 what this conspiracy is, the criminal purpose and joins it
5 at 12:01 and leaves at 12:03, he's in.
6 MR. WHITE: Your Honor, here's what I propose we
7 do. Your Honor, I was going to try to think how we would
8 proceed now. For virtually every witness the government
9 intends to call there is internal paperwork of the firm
10 that identifies the person they spoke to even if they
11 don't recall what their name was.
Yes, they got away with all his and more. What a circus.
To continue,
here is a full version of the March 2nd transcript
here is a full version of the March 2nd transcript
