Whos Who Worldwide Crushed by Corruption of Reed Elsevier Feb

See and Believe Trial Transcript Poof - Gone! Managing Directors! Best & Brightest
Politics WHAT??!!! Dirty Jury? PowerGems

3705
22 (516) 485-6558

23
Proceedings recorded by mechanical stenography, transcript
24 produced by Computer-Assisted Transcription
25

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3707

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

2

3 (The following takes place in the absence of the

4 jury.)

5 THE COURT: Did you want to speak to me,

6 Mr. Trabulus? Is everybody here?

7 MR. TRABULUS: I haven't taken attendance, I am

8 not sure. I haven't seen Mr. Geduldig. I think a couple

9 of people are in the room, and I will get them.

10 MR. NEVILLE: I would like to address the Court.

11 THE COURT: You can't do anything until I find

12 out if everybody is here.

13 MR. NEVILLE: Good morning.

14 THE COURT: Good morning.

15 MR. SCHOER: Mr. Lee is in the building.

16 THE COURT: Where is he?

17 MR. SCHOER: I saw him walking up to the men's

18 room about five minutes ago.

19 THE COURT: Are all the defendants here today and

20 on time?

21 THE DEFENDANT WEITZ: With bright shiny faces.

22 MR. GEDULDIG: They are early.

23 (Whereupon, at this time there was a pause in the
24 proceedings.)
25 THE COURT: Yes, Mr. Trabulus.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3708

1 MR. WHITE: I would ask when the jury comes in,

2 they are given limiting instructions with respect to the

3 second and third tape played yesterday. One under the

4 current state of the record is admissible against the

5 corporation Who's Who Worldwide and Mr. Osman. The other

6 against the defendant Laura Winters, I mean Laura Weitz,

7 and the corporation Who's Who Worldwide.

8 I think as the tapes are played, unfortunately,

9 there would be repeated limiting instructions because each

10 one relates to one particular corporation and one

11 defendant.

12 THE COURT: I will give those instructions.

13 We will wait for the juror. There is one juror

14 that is missing.

15

16 (Whereupon, a recess is taken.)

17

18 THE COURT: Alternate juror number four is not

19 here. We do not have any telephone call or message from

20 alternate juror number four. My courtroom deputy clerk

21 called the residence of alternate juror number four.

22 What happened?

23 THE CLERK: There was only an answering machine,
24 and I left a message.

25 The juror apparently lives in Queens County, not

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3709

1 too far from here. And apparently drives to court. We

2 have no message and we don't know where this juror is.

3 MR. NELSON: I believe what might have occurred,

4 there was a serious accident on the Long Island Expressway

5 closing the highway just past where you get on the

6 Northern State. I beat it this morning, but that's where

7 the fork is where you get off of the LIE to get on to the

8 Northern State.

9 MR. JENKS: I drive that way in the morning, your

10 Honor. And exit 40 on the Long Island Expressway heading

11 east was closed.

12 MR. LEE: A truck was on fire, your Honor.

13 MR. GEDULDIG: I heard an oil truck was on fire.

14 THE COURT: It sounds like there were disasters

15 all over the place. How unusual?

16 Nevertheless, I will not wait indefinitely for

17 this juror.

18 What do you want to do? It is now a half an

19 hour?

20 MR. NEVILLE: Judge, can I suggest we wait a

21 little bit longer and see?

22 THE COURT: I suggest we wait until a quarter

23 after 10:00. That's three-quarters of an hour. Certainly
24 the juror could have gotten someplace to make a call.
25 Is that agreeable?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3710

1 MR. NELSON: Yes.

2 MR. WALLENSTEIN: Yes.

3 MR. TRABULUS: Yes.

4 THE COURT: I will tell the jurors we are waiting

5 for the other juror. Any objection to that?

6 MR. WALLENSTEIN: No.

7 MR. NEVILLE: No objection.

8 MR. TRABULUS: No.

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

10 THE COURT: Good morning.

11 There was an old -- not an old -- I don't think

12 it is an old movie. You might think it is an old mo vie.

13 It took place in World War II, and probably most of you

14 were not born at that time.

15 A JUROR: I was in it.

16 THE COURT: All right.

17 It says One of Our Aircraft is Missing.

18 That's the name of our movie.

19 Well, one of our jurors is missing. Alternate

20 juror number four.

21 Now, I discussed it with the lawyers. They as

22 much as I would, we are going to wait for the juror. We

23 will wait until a quarter after 10:00 to get here.
24 Obviously something happened on the road, but we cannot
25 wait indefinitely. We will wait until a quarter after

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3711

1 10:00. I apologize for keeping you waiting. This time it

2 wasn't my fault. All the other times it was my fault, I

3 will tell you that now.

4 See you later.

5

6 (Whereupon, a recess is taken.)

7

8 THE COURT: I am pleased to advise you that the

9 juror has arrived.

10 THE CLERK: Jury entering.

11 (Whereupon, the jury at this time entered the

12 courtroom.)

13 THE COURT: Good morning again to the 15 of you,

14 and good morning again for the first time to alternate

15 juror number four.

16 We are happy you were able to overcome the

17 problems you had, juror number four, and thank you for

18 being dedicated.

19 You may proceed.

20 MS. SCOTT: The government calls James Spencer.

21 THE CLERK: Please raise your right hand.

22 J A M E S S P E N C E R ,

23 called as a witness, having been first
24 duly sworn, was examined and testified
25 as follows:

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3712

1

2 T HE CLERK: Please state your name and spell your

3 last name slowly for the record.

4 THE WITNESS: James Spencer, S P E N C E R.

5 THE COURT: You may proceed.

6 MS. SCOTT: Thank you, your Honor.

7

8 DIRECT EXAMINATION

9 BY MS. SCOTT:

10 Q Good morning, Mr. Spencer.

11 A Good morning.

12 Q Can you tell us where you live?

13 A I live in Las Vegas, Nevada.

14 Q What do you do for a living?

15 A A registered representative for a securities firm.

16 Q What is the name of that firm?

17 A WMA Securities, Inc.

18 Q How long have you held that job?

19 A Approximately a year and a half.

20 Q What are your responsibilities in that job?

21 A Basically I meet with individuals, families, small

22 businesses, I show them strategies to get better rates of

23 return on their investments, save for retirement and avoid
24 as much tax as possible on those investments.
25 Q What did you do before you took that position?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3713
Spencer-direct/Scott

1 A Prior to that, to this position, I was a junior

2 officer at a bank located and headquartered in Las Vegas.

3 Q What bank is that?

4 A P R I M E R I T, one word, Primerit.

5 Q What was your position at Primerit?

6 A I was an assistant vice president for budgeting and

7 planning.

8 Q And what were your duties in that job?

9 A My primary responsibilities were the administration

10 of the annual budget process, as well as forecasting

11 interest rate risk management, and investment portfolio

12 managing.

13 Q You were in that position --

14 THE COURT: Before you go any further, I just

15 wanted to instruct the jury with regard to the tapes you

16 heard, tape recordings you heard yesterday, the last two

17 tape recordings -- the next to the last recording, I

18 instruct you that that evidence is only to be considered

19 against the corporation, Who's Who Worldwide Registry,

20 Inc., and the defendant Osman.

21 The last tape that you heard yesterday afternoon

22 is to be considered only against the corporation, Who's

23 Who Worldwide Registry, Inc., and the defendant Tara -- I
24 am sorry, withdrawn. And the defendant Laura Weitz. I
25 repeat that. The last tape is only to be considered by

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3714
Spencer-direct/Scott

1 you against the defendant Who's Who Worldwide Registry,

2 Inc. and the defendant Laura Weitz, and only those

3 defendants.

4 You may proceed.

5 MS. SCOTT: Thank you, your Honor.

6 Q Mr. Spencer, how long were you an assistant vice

7 president at Primerit?

8 A Approximately six years.

9 Q Were you ever contacted by a company called Who's Who

10 Worldwide?

11 A Yes, I was.

12 Q And did you eventually purchase a membership from

13 them?

14 A Yes, I did.

15 Q Can you tell us how you were first contacted?

16 A I was first contacted via a phone call from a

17 representative of the company.

18 Q What happened in that conversation?

19 A Basically the representative explained to me that I

20 had been nominated for inclusion in Who's Who Worldwide.

21 She told me a little about the company.

22 She offered or said she was going to send out a

23 questionnaire I was to answer and forward back to her.
24 THE COURT: Excuse me.
25 You have to pull the microphone a little closer,

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3715
Spencer-direct /Scott

1 please.

2 THE WITNESS: Sorry.

3 THE COURT: And speak up, please.

4 Q Did you receive anything in the mail from them?

5 A After the phone call, yes, I did.

6 Q What did you receive?

7 A I received a questionnaire which I subsequently

8 completed and mailed back.

9 Q What was included with the questionnaire, if

10 anything?

11 A I don't recall.

12 Q Was there a letter?

13 A Yes. There was a letter explaining, you know, the

14 company, and the questionnaire process.

15 Q Do you remember what the letter said?

16 A No, I don't.

17 Q I am showing you Exhibit 41-D, as in Daniel, for

18 Identification.

19 (Handed to the witness.)

20 Q Can you tell us what that is?

21 A It is a postcard which I filled out and mailed back

22 to the company.

23 MS. SCOTT: I offer Government's Exhibit 41-D.
24 T HE COURT: Any objection?
25 MR. TRABULUS: No.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3716
Spencer-direct/Scott

1 THE COURT: Government's Exhibit 41-D, for Dog,

2 in evidence.

3 (Government's Exhibit 41-D received in evidence.)

4 Q Is that the questionnaire you received from the

5 company?

6 A This is not the questionnaire. This is a -- it says

7 it is an invitation to be included in the company's

8 directory.

9 Q Does that -- does your handwriting appear on that

10 document?

11 A Yes, it does.

12 Q Can you turn over Government's Exhibit 41-D and read

13 the postmark on it.

14 A Las Vegas, Nevada, the 7th of April, 1993.

15 Q What happened after you sent this card in?

16 A After sending the postcard away, approximately

17 several days later I received a call back from the

18 representative, the same one I talked with earlier. And

19 at that time she said that she had some questions to go

20 through with me.

21 Q In that conversation what were you told about the

22 company and about the membership?

23 A I was told first of all that it was a member-run
24 organization, meaning it was run by and for the benefit of
25 its members; that I had been nominated for inclusion in

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3717
Spencer-direct/Scott

1 this Who's Who Registry of global business leaders, and

2 that there were certain qualifications, or criteria that

3 needed to be met to insure that I was in fact qualified to

4 be included in this Registry. And she was then going to

5 go through some of those criteria with me, in an evidence

6 to determine if I met the standards.

7 Q Were you told anything else about your membership in

8 Who's Who Worldwide?

9 A I was told several other things, that some of the

10 benefits of membership included not only the publication

11 in the Registry of global business leaders, but also that

12 there would be a quarterly magazine, an entire

13 publication, detailing some activities, and the profiles

14 of members, as well as local and regional type of

15 conferences that I would have an opportunity to attend.

16 I was told that, that I would also receive, upon

17 meeting the criteria, that I would receive a plaque

18 suitable for hanging in the office; I would have an

19 opportunity to purchase a CD-ROM version of the Registry

20 at some point in the future, and that I would have an

21 opportunity to take advantage of an affinity type credit

22 card program with the Who's Who logo on it, like a Master

23 Card or Visa.
24 Q Are you able to remember anythin g else you were told
25 in this conversation?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3718
Spencer-direct/Scott

1 A Well, I was told, again, that I was nominated for

2 inclusion in this directory, and that there were two basic

3 ways that people were qualified to join, one being by a

4 nomination of another member; and the other being a

5 certain limited number of people who would be invited to

6 join on the basis of their publicized accomplishments or

7 success in business. These would be something on the

8 order of famous type people.

9 Q Did you ask any questions during this phone

10 interview?

11 A Yes. I inquired about who in fact nominated me for

12 inclusion in this directory.

13 I also asked, you know, again, what exactly would

14 be the opportunities for networking with peers and other

15 associates that may be included in the directory.

16 Q And what response did you get to your question about

17 who had nominated you?

18 A I was told that that information was not available to

19 the person calling in.

20 Q What was the most important thing that they said to

21 you that led to the purchase of the membership?

22 A The two most important things were the fact that I

23 had been nominated by someone known to me, and also the
24 opportunities to potentially network with people in my own
25 industry, as well as perhaps other industries, on a local

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3719
Spencer-direct/Scott

1 or regional type level.

2 Q How did your perception that you had been nominated

3 relate to your perception of how you would use the

4 membership?

5 A I am not sure I understand your question. Basically

6 my percepti on --

7 MR. GEDULDIG: Objection, Judge.

8 THE COURT: No, if you don't understand the

9 question, Mr. Spencer, counsel will clarify it for you.

10 MS. SCOTT: I will clarify the question, your

11 Honor.

12 Q How did your understanding that you had been

13 nominated or other members had been nominated, how did

14 that relate to your idea of how you were going to use the

15 membership?

16 A Well, basically the fact that I had been nominated by

17 someone known to me, it was very important to me insofar

18 as being able to network with other members, as well as to

19 utilize -- well, I was also told that I would have

20 received camera ready artwork with real business cards and

21 stationery, and that type of thing. And that was

22 important insofar as using that, and insofar as meeting

23 with people in the local business community.
24 Q Why was it impor tant to you that you had been
25 nominated?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3720
Spencer-direct/Scott

1 A Well, to me it reflected, you know, in someone's

2 mind, that I or definitions, or what have you, of being a

3 person successful in my field, and that was extremely

4 important to me.

5 Q Now, if your name had been obtained not by nomination

6 from another member, but from a mailing list, would that

7 have affected your decision to purchase?

8 A Yes, it would.

9 Q How would it have affected your decision?

10 A I would not have attached any real value on being

11 associated with other people on a mailing list.

12 Q And weigh is that?

13 A Well, there would be no -- people on a mailing list,

14 there would be no assurance or no real criteria having

15 been met, or in any one's mind that these people were, yo u

16 know, successful leaders in the business community.

17 Q Now, how much did you pay for your membership?

18 A Approximately $300.

19 Q I am showing you Government's Exhibit 41-B, as in

20 Boy, for Identification.

21 (Handed to the witness.)

22 Q Do you recognize that?

23 A Yes, I do.
24 Q What is that?
25 A It is an invoice from Who's Who, showing my five year

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3721
Spencer-direct/Scott

1 membership with an amount due of $290.

2 MS. SCOTT: Your Honor, I offer

3 Government's Exhibit 41-B.

4 THE COURT: Any objection?

5 MR. TRABULUS: No.

6 THE COURT: Government's Exhibit 41-B, for Baker,

7 in evidence.

8 (Government's Exhibit 41-B received in evidence.)

9 Q Now, just looking, you mentioned that that document

10 shows the details of your purcha se?

11 A Uh-huh.

12 Q And the amount given is $290, I believe you

13 testified?

14 A Yes, with shipping charges added of seven dollars.

15 Q Can you tell us the date of that document?

16 A Invoice dated 4/15/93.

17 Q Now, I am showing you Government's Exhibit 41-C, as

18 in Charles, which is in evidence.

19 (Handed to the witness.)

20 Q Can you take a look at that document.

21 Does your name appear there?

22 A Yes, it does.

23 Q If you look at the upper right-hand corner of that
24 page, can you tell us whose name is listed there?
25 A It looks like Annette Haley.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3722
Spencer-direct/Scott

1 Q Is there other information on that document that is

2 familiar to you?

3 A There is some handwriting down here with some notes

4 apparently taken from my telepho ne conversation.

5 Q Is there information about you on there?

6 A Yes, there is my title, assistant vice president for

7 Primerit Bank, my favorite vacation place, southwestern

8 U.S. , favorite magazine, Expertise; favorite author and

9 some other information that I can't really make out the

10 handwriting on.

11 Q How did you pay for the membership?

12 A With a credit card.

13 Q How did you give your credit card number to the

14 company?

15 A Over the phone.

16 Q Did you receive a plaque?

17 A Yes, I did.

18 Q And did you receive a directory?

19 A No, I did not.

20 Q I am showing you now Government's Exhibit 41-F, as in

21 Frank. That's for identification.

22 (Handed to the witness.)

23 Q Do you recognize that?
24 A Yes.
25 Q What is it?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

372 3
Spencer-direct/Scott

1 A An invoice for $101.75 in additional billing.

2 MS. SCOTT: I offer Government's Exhibit 41-F.

3 THE COURT: Any objection?

4 MR. TRABULUS: No.

5 THE COURT: Government's Exhibit 41-F, for Fox,

6 in evidence.

7 (Government's Exhibit 41-F received in evidence.)

8 Q Did you receive that invoice?

9 A Yes, I did.

10 Q And does it indicate what that additional payment is

11 for?

12 A Not really. It says description, final payment.

13 Q And what is the date on that?

14 A It is dated January 26th, 1994.

15 Q Now, when you received that invoice, what did you do?

16 A I did not pay it. I didn't respond.

17 Q And why is that?

18 A I had been led to believe in my telephone

19 conversations earlier that, you know, the $297 that I had

20 previously paid was an all inclusive amount to offset

21 printing c osts for the directory, the art, the camera

22 ready art work, and the other benefits I had already

23 received.
24 Q Who led you to believe that?
25 A The person I spoke with over the phone. I don't

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3724
Spencer-direct/Scott

1 remember the woman's name.

2 Q If you can just take a look at 41-B in front of you,

3 and that's B as in Boy, do you see a blue box at the

4 bottom of that document?

5 A Yes.

6 Q You are looking at the invoice?

7 A Yes, I am.

8 Q Can you read to us the language that appears in that

9 blue box.

10 A It says: Important information by membership

11 preference and for your convenience, the membership

12 amount --

13 THE COURT: Don't we know what it says? It is

14 the same as in any other invoice we have seen.

15 MS. SCOTT: Yes.

16 THE COURT: It has something about a split bill;

17 is that correct?

18 MS. SCOTT: Yes.

19 THE COURT: We don't have to read that into the

20 record. We have seen it a number of times.

21 MS. SCOTT: Your Honor, I am mistaken, it is

22 different from the others we have read. Some of the

23 invoices mention --
24 THE COURT: Why don't you read it, and do it
25 slowly.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3725
Spencer-direct/Scott

1 MS. SCOTT: I do it?

2 THE COURT: Yes.

3 You have heard me say it 38 times at least, and

4 this witness hasn't. Namely, when you read you have to

5 read slowly.

6 MS. SCOTT: Okay.

7 THE COURT: Have you heard me say that?

8 MS. SCOTT: Yes, I will be glad to read slowly.

9 By membership preference and for your

10 convenience, the membership amount has been spli t-billed.

11 The final payment shown is due now. Your Who's Who

12 Registry platinum edition would be shipped to you within

13 three to six weeks after payment has been received. There

14 are no additional dues or charges after the initial year.

15 We look forward to providing you with important membership

16 privileges and services for many years to come.

17 Your Honor, may I publish these exhibits that I

18 placed before Mr. Spencer?

19 THE COURT: Yes.

20 (Whereupon, the exhibit/exhibits were published

21 to the jury.)

22 Q Did you get any of the other items you were told you

23 would receive?
24 A I did receive a very nice looking plaque through the
25 mail. I received the camera-ready art work that was

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3726
Spencer-direct/Scott

1 promised for the use on business cards and st ationery. I

2 also subsequently received an offer for the affinity

3 credit card through I believe the NBNA Bank, which I

4 subsequently took advantage of.

5 Q Did you ever receive a directory?

6 A No, I did not.

7 Q Were you ever contacted again by the company after

8 that?

9 A Well, other than the invoice which was sent to me in

10 January of '94, I believe someone did call from the

11 company after some amount of time had passed, after I did

12 not respond or pay that invoice.

13 Q Did you ever pay the invoice?

14 A No, I did not.

15 MS. SCOTT: Thank you.

16 No further questions.

17 THE COURT: Cross-examination.

18

19 CROSS-EXAMINATION

20 BY MR. TRABULUS:

21 Q Good morning, Mr. Spencer.

22 After you got the second invoice which asked for

23 an additional payment of $101 and change, did you call
24 Who's Who Worldwide to find out what it was about?
25 A I believe they contacted me before I had a chance to

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3727
Spencer-cross/Trabulus

1 call.

2 Q Did you in speaking to them indicate that the invoice

3 you received was a final payment --

4 A Would you repeat that?

5 Q You received 41-B, for -- the invoice for the $290;

6 is that correct?

7 A Yes.

8 Q It says that the payment was a final payment?

9 A Yes.

10 Q And did you call the attention of the person who

11 spoke to you from Who's Who Worldwide that you had had in

12 your hand an invoice indicating you had already made the

13 final payment?

14 A Yes, I did.

15 Q And what did they tell you about that?

16 A They told me that the directory itself was not

17 included in that initial invoice, and that's what the

18 invoice for $101.75 --

19 Q Di d they ask you to see a copy of the invoice that

20 you had in your hand?

21 THE COURT: Did you get the last few words of the

22 witness' answer?

23 THE COURT REPORTER: I did not, your Honor.
24 (Whereupon, the court reporter reads the
25 requested material.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3728
Spencer-cross/Trabulus

1 THE COURT: Conclude your answer.

2 THE WITNESS: The $101.75 was for the directory

3 itself, the hard copy. That's what I was told.

4 Q Did you tell them that it appeared that some kind of

5 mistake was made based on the invoice you originally

6 received of $290?

7 A Yes, I did. I did. I told them that I was under the

8 impression that the $290 I paid previously had included

9 the directory itself, and that, you know, I believe that

10 to be the f inal payment for the five year membership.

11 Q Do you know the name of the person you spoke to when

12 you had this conversation?

13 A No, I don't.

14 Q Did you ask to speak to this person's supervisor or

15 superior?

16 A No, I didn't.

17 Q You don't know as you are there today whether or not

18 your name was actually included in a directory, do you?

19 A I have not seen a copy of the directory, no.

20 Q I am going to show you what has been previously

21 received as Defendant's Exhibit Q in evidence, and I will

22 direct your attention to page 837, to the entry I am

23 pointing to.
24 (Handed to the witness.)
25 Q Mr. Spencer, does that appear to be an entry that

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3729
Spencer-cross/Trabulus

1 would be consistent with the information that you gave the

2 person you had initially spoken to?

3 A Yes, it does.

4 Q Also, Mr. Spencer, I am going to show you another

5 directory which has been marked as Defendant's Exhibit P,

6 and I am going to direct you to page 750, P in evidence.

7 (Handed to the witness.)

8 Q Excuse me, not 750, 751.

9 Again, does the same entry appear?

10 A Yes, it does.

11 Q Did you ever receive the Tribute Magazine, sir?

12 A Yes, I did.

13 Q And how many did you receive?

14 A I don't remember the exact number, but probably

15 something like half a dozen.

16 Q And did you read them?

17 A Yes, I did.

18 Q Did they appear to you to be of -- to contain

19 information concerning other members?

20 A Yes, they contained information on other business

21 leaders, the international, you know, national type,

22 level.

23 Q Did you see any profiles of members?
24 A Yes, I did.
25 Q And did you also see smaller entries concerning

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3730
Spencer-cross/Trabulus

1 members, which were under Member Spotlights? Do you

2 recall that?

3 A I don't recall that.

4 Q Did you utilize Tribute at all in your business?

5 A How do you mean, in my business?

6 Q Well, did you attempt to contact any of the people

7 listed there to see if they would have any need for your

8 banking services?

9 A No, I did not.

10 Q When I referred to Member Spotlights, I am going to

11 show you what is marked as Defendant's -- actually Gordon

12 Defendant's Exhibit C, the volume of Tribute, and I am

13 asking you if you recall seeing anything like that?

14 A I don't recall seeing the exact page here. But in

15 general this appears to be a copy of a magazine that I

16 would have received.

17 Q Did you ever consider, sir, attempting to get

18 yourself spotlighted in Tribute?

19 A I don't know how I would have done that.

20 Q Did you ever consider contacting Who's Who Worldwide

21 to see whether or not there might be a small article or a

22 squib inserted about yourself in Tribute?

23 A No, I didn't.
24 Q When you were spoken to originally, you were told
25 about the CD-ROM, were you?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3731
Spencer-cross/Trabulus

1 A Yes. I was told in the future there would be an

2 opportunity to purchase a CD-ROM version of the directory.

3 Q Was it explained to you that that would be a

4 particular problem in networking?

5 A Yes.

6 Q Did you ever pursue that to get the CD-ROM version of

7 the directory?

8 A No. I was never offered any further mailings or any

9 offers for that particular product.

10 Q I think you testified -- withdrawn.

11 As you sit here today, do you know whether or not

12 your name came from a mailing list or whether another

13 member nominated you?

14 A No, I don't.

15 Q You indicated that you received a telephone call from

16 somebody at Who's Who before you received anything in the

17 mail from them?

18 A That's correct.

19 Q Are you certain about that?

20 A Yes, I am.

21 Q If you indeed had been nominated by another member,

22 although some of the other people in the book, who are in

23 the membership, had been obtained from the mailing list,
24 would it have affected your decision as to whether or not
25 to become a member?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3732
Spencer-cross/Trabulus

1 A Are you telling me in fact that other people in the

2 book were from a mailing list?

3 Q Accepting that some of the people, indeed, the

4 majority were from a mailing list, and if you were

5 nominated by another member, would you have purchased?

6 A Probably not.

7 Q If the mailing lists themselves were selected and had

8 people who are like yourself, and perhaps even further

9 advanced in their careers, would that have affected your

10 decision?

11 A No, it wouldn't.

12 Q When I showed you the entry for yourself in the two

13 directories, it indicated your title as assistant vice

14 president; is that correct?

15 A Yes, that's correct.

16 Q It wasn't changed to associate, or just vice

17 president?

18 A No.

19 Q It appeared with the word assistant?

20 A I believe it did.

21 Q When you heard that you were nominated by somebody,

22 you felt it was satisfying to your ego or it was an ego

23 stroke or something that made you feel very good?
24 A Yes. It definitely did make me feel good that
25 someone had recognized my accomplishments or level of

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3733
Spencer-cross/Trabulus

1 success.

2 Q And that feeling good was not something that you had

3 to pay for; is that correct? In other words, that came

4 with the mailing and with the telephone call; is that

5 correct?

6 A What came with the mailing and the telephone call?

7 Q The information that you had been nominated, you got

8 that ego stroke without having to pay for it, depart with

9 any money or property; is that correct?

10 A I was told I was nominated without having to pay for

11 it.

12 Q In terms of you feeling good, the fact that you might

13 have to pay down the road, it wouldn't n ecessarily make

14 you feel any better. It is something that had already

15 happened; is that correct?

16 A Correct.

17 Q What you would be paying for is a membership in an

18 organization that you would be able to utilize for

19 networking and business purposes; is that correct?

20 A Yes. And what I was told is what I was also paying

21 for was in fact to offset the printing cost, the

22 distribution cost for the directory itself.

23 Q Nobody is questioning that you were indeed sent an
24 invoice indicating you didn't have to pay anything extra
25 in your particular case. But the question I am asking you

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3734
Spencer-cross/Trabulus

1 about is, you were paying, were you not, for membership in

2 an organization which provided certain business advantages

3 to you in a listing; is that corr ect?

4 A Yes.

5 Q And now you saw you -- you see you were indeed in the

6 listing, although you didn't get a copy of the directory;

7 is that correct?

8 A That's correct.

9 Q And if a business makes a mistake and sends you the

10 wrong form, and then in dealing with you, treats you as if

11 they sent another form which provided for you having to

12 pay extra down the road, it doesn't mean anyone

13 intentionally defrauded you, does it?

14 MS. SCOTT: Objection.

15 THE COURT: Sustained.

16 THE WITNESS: Did you want me to answer it?

17 THE COURT: No. Don't answer it. If I say

18 "sustained" don't answer the question.

19 MR. TRABULUS: I have no further questions.

20

21 CROSS-EXAMINATION

22 BY MR. GEDULDIG:

23 Q Mr. Spencer, you say you are presently employed, I
24 believe as a stockbroker; is that correct?
25 A No. I a m a registered representative, I am not

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3735
Spencer-cross/Geduldig

1 licensed to sell individual securities.

2 Q And what does that mean? Exactly what does your job

3 entail?

4 A Like I said before, it deals with families, dealing

5 with families, small business owners, analyzing their

6 needs and determining investment vehicles such as mutual

7 funds, annuities, veritable products that may be suitable

8 to their particular charities and goals.

9 Q Do you have it in mind at a future time to becoming a

10 stockbroker?

11 A No.

12 Q Prior to the present job you have you worked for a

13 bank in Las Vegas?

14 A That's correct.

15 Q What did you do in that bank?

16 A I worked in the treasury area of the bank. I was

17 responsible for the management of the annual budget

18 process. I ran financial forecasts, rather analysis of

19 the banks hedging of -- for it securities portfolio.

20 Q Now, with regard to the job you are presently

21 holding, you deal with individuals and small businesses?

22 A Yes.

23 Q You make recommendations?
24 A Yes.
25 Q Financial recommendations; is that correct?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3736
Spencer-cross/Geduldig

1 A Yes.

2 Q When you were with the bank you said you managed

3 their hedging portfolio?

4 A That's correct.

5 Q And in that job you made recommendations to the bank;

6 is that right?

7 A The management of the bank, yes.

8 Q Financial recommendations?

9 A Yes.

10 Q And have you been correct 100 percent of the time?

11 A Have I been correct 100 percent of the time?

12 Q Right.

13 A Correct in what respect?

14 Q That every financial investment that you advised

15 either a small business, an individual, or your bank

16 employer to take part in was successful?

17 A Yes. I believe I have.

18 Q 100 percent of the time?

19 A Yes.

20 Q And when you talked to these individuals that you

21 presently talked to, do you tell them that you are

22 correct, and that you had been correct every time you made

23 a recommendation?
24 A No, I don't.
25 Q What do you say to them?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3737
Spencer-cross/Geduldig

1 A I say to them that I believe the strategy that I am

2 outlining to you is the best strategy in respect of your

3 goals and particular needs.

4 Q Do you tell them that you have never been wrong?

5 A No, I don't.

6 Q Because you could be wrong?

7 A Well, n o. I don't tell them I have never been wrong,

8 because I could be wrong, because I would be somewhat

9 of -- it would be somewhat of a promise or inducement to

10 do business with me.

11 Q So, you could be wrong in saying to them that this

12 investment could not fail, because I have never been

13 wrong? You wouldn't say that, would you?

14 A No, I would not say that.

15 Q So, if you were wrong in recommending an investment

16 to an individual or to a small business owner, you would

17 not expect to be indicted for that, would you?

18 A No, I wouldn't.

19 Q You are giving your best advice as you see it; is

20 that right?

21 A That's correct.

22 Q And if you are incorrect on some advice that you

23 gave, it was an honest mistake; is that right?
24 A I can't envision a case where I would be incorrect
25 after doing my analysis of the customers or the bank's

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3738
Spencer-cross/Geduldig

1 goals and needs.

2 Q You can't envision yourself ever being mistaken or

3 incorrect?

4 A Not insofar as understanding a person's needs or

5 goals.

6 Q Okay.

7 In the business that you are in now, do you rely

8 on mailing lists?

9 A No, I do not.

10 Q How do you get your customers?

11 A Through referrals of other customers -- well,

12 referrals of other customers primarily.

13 Q You work for a company?

14 A Yes, I do.

15 Q The company tells you about a customer?

16 A No, they do not.

17 Q The company doesn't refer any customers to you?

18 A The company does not refer any customers.

19 Q You said before you got the very first letter from

20 Who's Who Worldwide you got a telephone call from them?

21 A Yes, I did say that.

22 Q You got a call from somebody who said they were with

23 Who's Who Worldwide; is that right?
24 A Yes, that's correct.
25 Q And then you got the letter, correct?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3739
Spencer-cross/Geduldig

1 A Yes.

2 Q And after the letter you got several more telephone

3 calls from Who's Who Worldwide; is that right?

4 A One or two more at least.

5 Q So, at a minimum you got two calls, perhaps three or

6 more; is that right?

7 A That is correct.

8 Q Was it the same individual you spoke to on each

9 occasion?

10 A I believe it was.

11 Q And you don't remember that individual's name?

12 A No, I don't.

13 Q The name you saw on the form handed up to you by the

14 government, Ms. Scott, that was not a name that rang a

15 bell in your mind; is tha t right?

16 A Not particularly, no.

17 Q So, you cannot say that the person you spoke to from

18 Who's Who Worldwide was Annette Haley; is that right?

19 A Was what? I am sorry?

20 Q You cannot say that the person you spoke to on the

21 telephone from Who's Who Worldwide was Annette Haley?

22 A No, I can't say.

23 Q You cannot even say that the person you spoke to from
24 Who's Who Worldwide was a man or a woman?
25 A I can say definitely it was a woman.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3740
Spencer-cross/Geduldig

1 Q On each and every occasion?

2 A Yes.

3 Q Okay.

4 Have you ever in your experience referred, in

5 your present job have you ever referred a customer to a

6 co-worker of yours?

7 A No, I have.

8 Q Has any co-worker of yours ever referred a customer

9 to you for any reason?

10 A No, they have not.

11 Q Is that something that is on common in your field?

12 A It is not an entirely impossible, because it is not

13 the order of the day, so to speak.

14 Q Is there a phrase for it or a term, swapping, or

15 anything like that?

16 A No.

17 Q I think you indicated the two things important to you

18 when you joined Who's Who Worldwide were the fact that you

19 were going to be included with a number of other

20 prestigious people in a Registry; is that right?

21 A No, that was not one of the most important factors to

22 me.

23 Q What was?
24 A Again, the two most important factors was, number
25 one, the fact that I had been nominated by someone known

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3741
Spencer-cross/Geduldig

1 to me --

2 Q If I can stop you for a second, were you told that

3 you were nominated by someone known to you?

4 A Yes.

5 Q They told you that someone known to you nominated you

6 for inclusion in the Registry?

7 A That's correct.

8 Q Okay.

9 And what was the second factor?

10 A The second factor was that I would have the

11 opportunities to meet, interact with, network with people

12 in the Registry on a local and/or regional level.

13 Q Now, the networking would require you to know some of

14 the building people who were members of the Registry or

15 Who's Who Worldwide; is that correct?

16 A No, that's not correct. Networking would imply that

17 I would have the opportunity to meet other members of

18 Who's Who.

19 Q You would have to know who they were, right? You

20 would have to know their name? You would have to know an

21 address, you would have to know something about them

22 perha ps?

23 A No.
24 Q How do you network with people whose names you don't
25 know?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3742
Spencer-cross/Geduldig

1 A I was told there would be local or regional events at

2 which there would be opportunities to meet people.

3 Q Networking implies sometimes that calls are made?

4 You would call somebody or they might call you to get

5 together for such a regional event?

6 A Are you asking whether that implies that to me?

7 Q Yes.

8 A Sure, yes.

9 Q And you were shown your entry in the Registry, in two

10 of the registries published by Who's Who Worldwide?

11 A Yes. I was shown two books.

12 Q And you had spoken with the government attorneys

13 before you came here today?

14 A Yes, I have.

15 Q And on how many occasions have you spoken with them?

16 A Probabl y three or four.

17 Q And have you ever spoken with them while you were in

18 Las Vegas?

19 A Yes, I did.

20 Q On person or telephone?

21 A By phone.

22 Q How many times did you speak with them while you were

23 in Las Vegas?
24 A Probably three or four.
25 Q Do you recall who you spoke to?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3743
Spencer-cross/Geduldig

1 A I spoke with both Ron White and Ceci Scott from the

2 U.S. Attorneys office and Al Pagano from the postal

3 inspector's office.

4 Q Separate conversations?

5 A Probably two separate conversations with Al Pagano,

6 and there were conference calls in which both Ron and Al

7 spoke to me.

8 Q And the first call came from Mr. Pagano?

9 A That's correct.

10 Q And Mr. Pagano was asking primarily if you would be

11 willing to come to New York and testify in this case; is

12 that correct?

13 A He did not ask me if I would be willing to.

14 Q What did he ask you?

15 A He asked me about my experiences with Who's Who

16 Worldwide. And he said it may be required that I come to

17 New York and give my testimony.

18 Q He didn't give you an option? He said it would be

19 required for you to come?

20 A Yes.

21 Q And were you ever served with a subpoena?

22 A No, I was not.

23 Q And you were provided with some of the services used
24 by Who's Who Worldwide; is that correct?
25 A Yes.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3744
Spencer-cross/Geduldig

1 Q You used a credit card?

2 A Yes.

3 Q I believe you said you used some other items or

4 benefits which were provided to you?

5 A I read the magazine. I displayed my plaque. I did

6 not ever utilize the camera-ready artwork. But that was

7 available to me.

8 Q You didn't use a press release?

9 A No, I didn't.

10 Q You didn't get the Registry because you didn't pay

11 the $101?

12 A Apparently so.

13 Q Had the government attorneys or Mr. Pagano ever told

14 you there was some 492 members from the Registry in

15 Nevada?

16 A No, they never told me that.

17 Q Did he tell you that four of those members -- I am

18 sorry, three of the members are from Las Vegas and in the

19 banking industry, or in the financial industry?

20 A No, he did not.

21 Q Do you know a person by the name of Thomas Gutherie,

22 G U T H E R I E?

23 A No, I do not.
24 Q Do you know the company Southern Nevada Certified
25 Development Company?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3745
Spencer-cr oss/Geduldig

1 A No, I do not.

2 Q Do you know Velma C. Miller, M I L L E R, Velma,

3 V E L M A?

4 A No, I do not.

5 Q Do you know the Bank of America of Nevada?

6 A I know there is a Bank of America in Nevada.

7 Q Do you know Robert W. Smilely, S M I L E Y, Jr.,

8 chairman of the benefit capital companies in Longdale,

9 Nevada?

10 A No.

11 Q Have you ever heard of the company?

12 A No, I did not.

13 Q If you had gotten to the Registry and you had seen

14 names such as the ones I just read to you, is there the

15 prospect that you could have networked with some of those

16 people?

17 A Perhaps.

18 Q Not having the registry prevented you from doing some

19 of the networking, is that fair to say?

20 A Perhaps, yes.

21 Q When you decided to not pay the $101 for the

22 Registry, that is because you felt you paid t he entire

23 bill up front and shouldn't have had to pay more money; is
24 that right?
25 A Yes.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3746
Spencer-cross/Geduldig

1 Q And you were satisfied with the benefits provided by

2 Who's Who Worldwide up until the point that you got that

3 second invoice for $101; isn't that fair to say?

4 A Well, without having seen the directory, yes, more or

5 less, I was satisfied to that point.

6 Q You didn't feel you had been taken?

7 A No.

8 Q You didn't feel that any crime had been committed?

9 A Not in my mind.

10 Q You didn't feel any crime had been committed until

11 you were solicited by the government; isn't that fair to

12 say?

13 A I had no knowledge of a crime being committed, right.

14 Q You didn't feel wronged, I mean you personally, you

15 didn't feel wron ged in any way?

16 A I didn't feel I got my money's worth for $300 that I

17 paid since I didn't receive the directory.

18 Q And that was in part because of this $101 that Who's

19 Who was speaking and you didn't feel you should pay; is

20 that right?

21 A That's right.

22 Q You didn't file a complaint with the local district

23 attorney in Las Vegas, did you?
24 A No, I didn't.
25 Q Did you call up the United States District Attorney's

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3747
Spencer-cross/Geduldig

1 office in Las Vegas Nevada --

2 A No, I didn't.

3 Q Let me finish my question: And tell them you were

4 somehow snookered out of $100?

5 A No, I did not.

6 Q So, the first time you had any idea that there was a

7 crime committed was when Mr. Pagano called you; is that

8 right?

9 A That's fa ir to say, yes.

10 Q And up until Mr. Trabulus just showed you that

11 Registry, you had never seen the Registry, have you?

12 A No, I hadn't.

13 Q The government never showed it to you?

14 A No, they did not.

15 Q The government never asked you if you were satisfied

16 with your entry in the registry, right?

17 A Right.

18 Q And they never showed you any of the other names that

19 appeared in the registry; is that right?

20 A No, they did not.

21 Q And as you sit here today, you can't tell us that you

22 are unhappy or happy with that Registry, can you?

23 A No, I can't.
24 MR. GEDULDIG: Judge, I don't think I have any
25 other questions.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3748
Spencer-cross/Geduldig

1 THE COURT: Anyone else?

2 MR. DUNN: I have one or two.

3

4 CROSS-EXAMINATIO N

5 BY MR. DUNN:

6 Q Good morning, Mr. Spencer.

7 A Good morning.

8 Q Mr. Spencer, my name is Thomas Dunn.

9 Mr. Spencer, when you first spoke with Who's Who

10 Worldwide you were in the position with a bank; is that

11 correct?

12 A That's right.

13 Q At some time after that you switched jobs; is that

14 right?

15 A That's correct.

16 Q When you switched jobs, how did you go about doing

17 that? What was your process in doing that?

18 A Well, I was in fact, I guess, not terminated, but my

19 bank was sold to another bank and I was not offered

20 another position with the buyer.

21 Q Okay.

22 As a result of that you started to look for other

23 jobs; is that correct?
24 A That is correct.
25 Q And is it fair to say that you used resumes and

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

37 49
Spencer-cross/Dunn

1 applications in looking for jobs; is that right?

2 A Yes.

3 Q And on your resume, did you make any reference about

4 Who's Who Worldwide?

5 A No, I did not.

6 Q But you displayed the plaque, right?

7 A No, I did not.

8 The plaque --

9 Q Right.

10 A Yes. I displayed that in my office.

11 MR. DUNN: Thank you.

12 THE COURT: Anything else?

13 MR. NELSON: Yes, your Honor.

14

15 CROSS-EXAMINATION

16 BY MR. NELSON:

17 Q Good morning, Mr. Spencer. I am Alan Nelson.

18 When you were questioned by Mr. Geduldig, you

19 indicated that you were satisfied with everything you had

20 received from Who's Who Worldwide up until the time you

21 received the bill indicating that you were required to pay

22 an additional sum for the registry; is that correct?

23 A Yes.
24 Q Now, when y ou first received your first invoice, that
25 was back in approximately April; is that correct?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3750
Spencer-cross/Nelson

1 A April of 1993.

2 Q Right. And at that point in time, and I would like

3 to you look at I believe Government's Exhibit 41-D, the

4 invoice itself reflects, does it not, on the first line,

5 that there is a split billing here; is that correct?

6 A It says that, yes.

7 Q And there is a large form on the bottom which

8 indicates important information?

9 A That's correct.

10 Q Could you just read that into the record at this

11 point, read that to the jury, please.

12 A The blue box at the bottom says: Important

13 information. By membership preference and for your

14 convenience, the membership amounts has been split

15 billed. The final payment as shown is d ue now. Your

16 Who's Who Registry platinum edition would be shipped to

17 you within three to six weeks. After payment is received

18 there are no payments or annual charges after the initial

19 year. We look forward to providing you with important

20 membership privileges and services for many years to come.

21 Q When you applied, it was in April of 1993; is that

22 correct?

23 A I am sorry, when I --
24 Q When you first applied for membership in Who's Who
25 Worldwide?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3751
Spencer-cross/Nelson

1 A Yes, April of 1993.

2 Q The registry or the invoice you received for the

3 registry first came to you in late December, 1993,

4 indicating it was to be published in 1994; is that

5 correct?

6 A I am sorry. The second invoice I received in January

7 of 1994.

8 Q We re you aware, sir -- withdrawn.

9 The manner in which you were solicited for

10 membership in the organization was by means of someone by

11 a telephone who contacted you and spoke to you on the

12 telephone; is that correct?

13 A Initially, that's true.

14 Q Are you aware, sir, that pursuant to the laws of the

15 State of New York, pursuant to Section 396M of the general

16 business laws, Section 3B, it is specifically provided

17 that no person, partnership, firm, association or

18 corporation, or agent or employee thereof who conducts a

19 mail order business, or telephone order business shall

20 accept orders for merchandise which is not anticipated to

21 be available for shipment within 30 days from the date of

22 receipt of the order, together with payment or with charge

23 account authorization in the case of an order remitted
24 through the mail, or within thi rty days from the date the
25 seller debits the buyer's account in the case of an order

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3752
Spencer-cross/Nelson

1 placed by telephone? Were you aware of that, sir?

2 A No, I was not.

3 Q Would it be fair to say, sir, that Who's Who

4 Worldwide was complying with the requirements of New York

5 State law by advising you in advance that it was necessary

6 for them to split-bill you and charge you for the registry

7 within thirty days of the date or the time that the

8 Registry was available to be shipped to you?

9 MS. SCOTT: Objection.

10 THE COURT: Sustained.

11 MR. NELSON: No further questions, your Honor.

12

13 CROSS-EXAMINATION

14 BY MR. SCHOER:

15 Q Good morning, Mr. Spencer.

16 A Good morning.

17 Q There came a time before you had the earlier

18 c onversations with Mr. Pagano that you received a

19 questionnaire from the government; is that correct?

20 A Yes.

21 Q And when you filled out the questionnaire, that was

22 sometime in June of 1995?

23 A That's possible.
24 Q Let me show you 3500JWS-1, and I will ask you whether
25 that's the questionnaire that you filled out.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3753
Spencer-cross/Schoer

1 (Handed to the witness.)

2 A Yes, it is.

3 Q And does that refresh your recollection as to when

4 you filled that out?

5 A The date is dated June 26th, 1995, yes.

6 Q And would you say your memory in June, on June 26th,

7 1995 about the things you testified to is better then than

8 it is now?

9 A No, I would not say that.

10 Q When you filled out this questionnaire, you filled it

11 out truthfully; isn't that correct?

12 A That's correct.

13 Q Do you remember being asked this question in the

14 questionnaire, and giving this response:

15 Question: Were you told the company was

16 member-owned or member-run?

17 Answer: No.

18 Do you remember putting that in the

19 questionnaire?

20 A No, I don't.

21 Q I show you question number 21.

22 (Handed to the witness.)

23 Q Does that refresh your recollection that in the
24 questionnaire you were asked -- that you were told whether
25 the company was member-run or member-owned, you answered

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3754
Spencer-cross/Schoer

1 no?

2 A That's true, I did.

3 Q When you filled out the questionnaire, do you

4 remember being asked this question and giving this answer,

5 number 28:

6 Question: Did you receive all the items you

7 expected?

8 Answer: Yes.

9 Do you remember being asked that question and

10 giving that answer?

11 A No, I don't.

12 Q I will again show you the questionnaire, and I will

13 ask you to look at question 28, and ask you if that

14 refreshes your recollection that you answered the

15 question, did you receive everything that you expected,

16 and your answer was yes?

17 A That's correct.

18 Q You say there came at that time you received a

19 Tribute Magazine?

20 A Yes, I received several of them.

21 Q And I think you indicated something about one of the

22 things you wanted to get from this membership was local

23 conferences and things like that?
24 A Yes.
25 Q And you did receive information about conferences in

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3755
Spencer-cross/Schoer

1 the Tribute Magazine; isn't that correct?

2 A No, I did not. I do not recall ever seeing any

3 conferences that were going to be offered in Las Vegas,

4 Nevada, Arizona, California area.

5 Q But you did receive information about conferences in

6 the Tribute Magazine, not necessarily local conferences,

7 but conferences; isn't that so?

8 A I can't recall at this point as to whether there were

9 any conferences.

10 Q Do you remember talking on February 4th, 1997 with

11 someone from the government named Thomas McLaughlin?

12 A No, I do not.

13 Q Do you remember being interviewed or asked questions

14 by someone from the government 2:45 p.m., February 4th,

15 1997?

16 A No, I do not.

17 Q Do you remember speaking to Mr. Pagano or anyone

18 else, and them asking you whether after you purchased

19 membership you were notified of any seminars or

20 conferences that the company sponsored in mailings or the

21 Tribute Magazine, and answered, after you joined there was

22 no further information except for magazine ads?

23 A Yes.
24 Q So, you did --
25 A That was my answer.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3756
Spencer-cross/Schoer

1 Q What?

2 A That was my answer.

3 Q So you did receive information in the Tribute

4 Magazine about conferences; isn't that so, they were

5 asking him?

6 A I can't say it one way or another.

7 Q I am going to show you what is marked as

8 Defendant's Exhibit J in evidence.

9 (Handed to the witness.)

10 Q As part of the mailings you received from Who's Who

11 Worldwide, did you receive that document?

12 A I don't recall receiving any of the documents.

13 Q When you filled out the questionnaire did you provide

14 copies of documents to the government of things you had

15 received from Who's Who Worldwide?

16 A No, I did not.

17 MR. SCHOER: May I have a second with Mr. White?

18 THE COURT: Yes.

19 (Mr. Schoer confers with Mr. White.)

20 MR. SCHOER: May I have a second, Judge?

21 THE COURT: Yes.

22 MR. SCHOER: Inspector Pagano went to get

23 something out of his files.
24 (Whereupon, at this time there was a pause in the
25 proceedings.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3757
Spencer-cross/Schoer

1 Q Let me just show you the questionnaire one more

2 time. And I will ask you to look at question number 33.

3 (Handed to the witness.)

4 Q Does that refresh your recollection that you attached

5 certain things, documents you had received from Who's Who

6 Worldwide when you returned the questionnaire to the

7 government?

8 A I answered, see attached, which apparently indicates

9 that I did attach something. I can't recall exactly what.

10 Q Well, again I will show you Defendant's Exhibit J,

11 and I will ask you whether that's the document that you

12 attached, or one of the documents you attached to the

13 questionnaire?

14 A I don't believe it was. If I attached anything, it

15 is probably copies of some brochures and other glossy type

16 information that I still have in my possession.

17 Q Let me show you Defendant's Exhibit K for

18 Identification.

19 (Handed to the witness.)

20 Q Is this the copy of the brochure that you received?

21 A I don't believe this is the exact brochure that I

22 received.

23 Q You had indicated, I believe, that you hadn't
24 received any information concerning the CD-ROM; is that
25 correct?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3758
Spencer-cross/Schoer

1 A That's correct. I don't recall receiving anything

2 about the CD.

3 Q You read the Tribute Magazines, right?

4 A Correct.

5 Q And you received documentation concerning benefits;

6 isn't that correct?

7 A Concerning which benefits?

8 Q Well, you received information about member

9 benefits. That's the -- one of the things you put in the

10 questionnaire?

11 A Right. I didn't receive brochures.

12 Q Nothing about the CD-ROM, right?

13 A Right.

14 Q And Defendant's Exhibit J is not one of the brochures

15 received, right?

16 A It doesn't appear to be, no.

17 Q And the other exhibit marked for identification,

18 that's not one of the brochures you received, right?

19 A The letter you showed me?

20 Q Yes.

21 A I don't recall receiving that, no.

22 Q And both of those mentioned the CD-ROM, right?

23 A At least one of them did. I didn't read through the
24 brochure.
25 Q And the Tribute Magazines, as far as you know, don't

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3759
Spencer-cross/Schoer

1 have advertisements for the CD-ROM?

2 A I don't recall any, no.

3 Q And they don't have the list where the benefits are

4 listed that says there is a CD-ROM?

5 A No. The magazine itself.

6 Q You said, I believe, that you received about a half a

7 dozen magazines; is that right?

8 A Yes.

9 Q I will show you four of them that are marked in

10 evidence.

11 (Handed to the witness.)

12 Q Is it fair to say that those are the ones that you

13 received?

14 A Yes, they appear to be the same or similar as what I

15 had received.

16 Q I wi ll show you this advertisement in Gordon

17 Exhibit F. Is that an advertisement for the CD-ROM?

18 (Handed to the witness.)

19 A Yes, it is.

20 Q I will show you the list of benefits in Gordon

21 Exhibit F. Does it indicate that there is a CD-ROM

22 available?

23 A Yes, it does.
24 Q I will show you the list of benefits in Gordon
25 Exhibit C. Does it indicate there is a CD-ROM available,

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3760
Spencer-cross/Schoer

1 sir?

2 A Yes, it does.

3 Q I will show you the list of benefits in Gordon

4 Exhibit D, does it indicate that there is a CD-ROM

5 available?

6 A Yes, it does.

7 Q You got those magazines, right?

8 A I probably did.

9 Q As you sit there right now, do you know for a fact

10 whether or not -- well, did the government inform you

11 whet her or not anyone had ever nominated you for inclusion

12 in membership?

13 A They informed me that in fact my name came from a

14 mailing list.

15 Q They told you that?

16 A Yes.

17 Q Or they told you many people's names came from a

18 mailing list?

19 A I don't remember which.

20 Q They didn't tell you that in fact your name came from

21 a mailing list, did they?

22 A Well, I believe they suggested it fairly

23 definitively.
24 Q Did they tell you that there were nomination cards
25 with respect to members?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3761
Spencer-cross/Schoer

1 A They did not tell me, but I do in fact recall

2 receiving nomination cards for the purpose of nominating

3 additional members.

4 Q Right.

5 And also in the Tribute Magazine, there were

6 forms for nominating additional members; isn't that

7 correct?

8 A Probably so. There appears to be.

9 Q So, as you sit there right now, you don't know of

10 your own knowledge whether or not anyone nominated you, do

11 you?

12 A No.

13 MR. SCHOER: I have no further questions, your

14 Honor.

15 MR. JENKS: May I ask one from mere, your Honor?

16 THE COURT: Yes.

17

18 CROSS-EXAMINATION

19 BY MR. JENKS:

20 Q Did the government show you anything that would prove

21 to you beyond a reasonable doubt that your name came from

22 a mailing list?

23 MS. SCOTT: Objection.
24 THE COURT: Sustained.
25 Q Did the government show you anything to demonstrate

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3762
Spencer-cross/Jenks

1 to you that your name came from a mailing list?

2 A No, they did not.

3 MR. JEN KS: No further questions, your Honor.

4 THE COURT: Any redirect?

5 I am sorry, Mr. Lee.

6

7 CROSS-EXAMINATION

8 BY MR. LEE:

9 Q Mr. Spencer, in your -- prior to you testifying did

10 the government inform you that the Who's Who organization

11 itself had an internal criteria, a selective criteria that

12 had to be met before they would even call or contact

13 someone?

14 MS. SCOTT: Objection.

15 Q Did they ever inform you of that?

16 A The government never said anything like that. But

17 the person who called me said something like that.

18 Q If you can just answer the question --

19 MS. SCOTT: Objection.

20 THE COURT: We have now three people talking at

21 the same time. It is difficult for two to do that. Now

22 we have three.

23 MR. LEE: If I may --
24 THE COURT: You may not.
25 MR. LEE: I would like to rephrase the question.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3763
Spencer-cross/Lee

1 THE COURT: You may not need to. Let me hear the

2 question, please.

3 (Whereupon, the court reporter reads the

4 requested material.)

5 THE COURT: I will overrule the objection and

6 allow the answer to stand. I will overrule both

7 objections.

8 MR. LEE: Fine, Judge.

9 THE COURT: Your objection and Ms. Scott's

10 objection.

11 That reminds me of a Broadway show called Fiddler

12 on the Roof. In the show, the main character, who is

13 called Tevya, T E V Y A, said on several occasions, you

14 know, you're right and you're right, pointing to both.

15 In this case both lawyers' objections are

16 overruled because they are both wrong.

17 I hope I didn't throw you off too much, Mr. Lee.

18 MR. LEE: I am trying to ingest what you said

19 first, Judge, before I proceed.

20 Judge, I have no further questions.

21 THE COURT: Anybody else?

22 MR. NEVILLE: Yes, your Honor.

23
24
25

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3764
Spencer-cross/Neville

1 CROSS-EXAMINATION

2 BY MR. NEVILLE:

3 Q Hi, Mr. Spencer. I am Jim Neville.

4 Mr. Spencer, you had a conversation with someone

5 at Who's Who; you got this bill that you weren't going to

6 pay, the extra bill, right?

7 A The second invoice, correct, I did not pay.

8 Q But you had a telephone conversation with someone

9 about that invoice, didn't you?

10 A Someone did follow up and contact me as to why I had

11 not paid the bill.

12 Q Do you know who that person was with whom you spoke?

13 A No, I don't.

14 Q Any idea?

15 A No.

16 Q Did the y give you your name -- their name?

17 A They may have. I don't recall it.

18 Q You have no recollection, do you?

19 A No.

20 Q Could that person have been Carl Roper?

21 A I don't believe so. I seem to recall speaking to a

22 woman exclusively in my dealings with Who's Who.

23 Q Would that person have been Jill Barnes?
24 A It could have been.
25 Q Now, you spoke about being required to come here to

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3765
Spencer-cross/Neville

1 testify, right?

2 A I said that, yes.

3 Q But you didn't receive a subpoena from anyone you

4 said, too; right?

5 A No, I didn't.

6 Q And correct me if I am wrong, but I thought I heard

7 you refer to Mr. Pagano as Al. Did I hear you say that?

8 A Yes, I said Al Pagano.

9 Q No, no, no. Did you say in a sentence in testifying

10 in court, referring to Al Pagano, as Al and nothing else,

11 just Al? Did you say that?

12 A I may have.

13 Q Well you don't remember?

14 Let me ask you this: Did you refer to Mr. White

15 as Ron?

16 A I may have.

17 Q How many times did you speak with Mr. White, or Ron,

18 however you would like to call him?

19 A I believe I said I have spoken with him two to three

20 times.

21 Q You live in Las Vegas, right?

22 A Right.

23 Q You flew into New York?
24 A Correct.
25 Q When did you fly in?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3766
Spencer-cross/Neville

1 A Last night.

2 Q Who paid for your ticket?

3 A I suppose the government did.

4 Q You didn't have to buy a ticket?

5 A No, I didn't.

6 Q How did you get on the plane without a ticket?

7 A Well, they told me it was an E ticket, and all I had

8 to do was to show identification at the ticket counter.

9 Q Pretty good.

10 So you just showed your driver's license and they

11 put you on the plane?

12 A Correct.

13 Q Did you have to say that Ron sent you to get you on

14 the plane?

15 MR. WHITE: That would not get him on the plane.

16 MR. NEVILLE: Something got on the plane?

17 A I didn't have to say that Ron sent me.

18 Q How about Al? Did you say that Al --

19 A I didn't have to say that Al sent me, or sent for me.

20 Q Did they give you a regular seat on the plane?

21 MS. SCOTT: Objection.

22 THE COURT: Sustained.

23 Q And it was your testimony, was it not, sir --
24 withdrawn.
25 Sir, I don't mean to think, to have you think

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3767
Spencer-cross/Neville

1 that thi s isn't a serious matter. Do you know that this

2 is a criminal case?

3 A Yes, I do.

4 Q The government told you it was a criminal case?

5 A Yes, they did.

6 Q Did the government tell you who was on trial here?

7 A They mentioned several times that the case was

8 titled, U.S. v. Gordon. I don't have an idea as to the

9 other defendants, if any.

10 Q You have no idea who else is on trial?

11 A No, I don't.

12 Q You have no idea who else is on trial and facing a

13 possible jail sentence in this case?

14 A No, I don't.

15 MS. SCOTT: Objection.

16 THE COURT: Sustained.

17 Strike out the answer. The jury is instructed to

18 disregard it.

19 Q Did Ron or Al --

20 THE COURT: Mr. Neville, don't do that again.

21 You have done it several times and I have sustained the

22 objection. And you understand that I don't want you to

23 get into that subject.
24 MR. NEVILLE: I am sorry.
25 THE COURT: Okay.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3768
Spencer-cross/Neville

1 Q Did Mr. White or Mr. Pagano, either of you tell --

2 either of them tell you that a company by the name of Reed

3 Elsevir sued Who's Who?

4 MS. SCOTT: Objection.

5 THE COURT: I assume this is going somewhere

6 relevant.

7 MR. NEVILLE: I think it is, Judge.

8 THE COURT: Okay, I will allow it. Overruled.

9 MR. NEVILLE: Thank you.

10 A No, they did not tell me that.

11 MR. NEVILLE: Thank you. I have no further

12 questions.

13 THE COURT: Anybody else?

14 You have some redirect?

15 MS. SCOTT: I have some redirect.

16 THE COURT: We will take a ten-minute recess.

17 Please do not discuss the case, and keep an open

18 mind. Please recess yourse lves.

19 (Whereupon, at this time the jury leaves the

20 courtroom.)

21

22 (Whereupon, a recess is taken.)

23
24
25

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3769
Spencer-cross/Neville

1 THE CLERK: Jury entering.

2 (Whereupon, the jury at this time entered the

3 courtroom.)

4 THE COURT: Please be seated, members of the

5 jury.

6 You may proceed.

7

8 REDIRECT EXAMINATION

9 BY MS. SCOTT:

10 Q Mr. Spencer, do you remember being asked questions on

11 cross-examination about your job duties?

12 A Yes, I do.

13 Q And specifically, do you remember being asked

14 questions what you were doing at Primerit Bank?

15 A Yes, I do.

16 Q Do you remember testifying that your position was

17 that of a junior officer?

18 A Yes, I said that.

19 Q Can you tell us what you meant by that?

20 A Well, I was not a member of senior management in the

21 sense that I had a large number of people reporting to me,

22 nor that I had significant decision making authority on

23 the order of, you know, company wide type decisions.
24 Q Now, do you recall being asked questions about
25 whether you made any kind of complaints about your

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3770
Spencer-redirect/Scott

1 relationship with Who's Who Worldwide?

2 A Yes, I was asked that.

3 Q Do you remember testifying that you never made any

4 kind of complaint up until the time you received the

5 questionnaire from the postal inspectors?

6 A I did say that, and I wouldn't really even

7 characterize the questionnaire as a complaint.

8 Q And do you remember testifying that other than your

9 discussions with Who's Who Worldwide about that additional

10 invoice, you never made any other kinds of complaint to

11 any other agency?

12 A That's correct.

13 Q Now, up until the time that you got this

14 questionnaire, what did you believe about how you had been

15 selected for membership?

16 A I believed that I had been nominated by someone known

17 to me, most likely in Las Vegas.

18 Q Now, you were asked questions about the CD-ROM that

19 Who's Who Worldwide offered; do you recall that?

20 A Yes.

21 Q And do you recall being shown magazines where the

22 CD-ROM was advertised?

23 A Yes, I was.
24 Q And do you remember being asked whether you made any
25 attempts to take advantage of the CD-ROM?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3771
Spencer-redirect/Scott

1 A Yes, I was.

2 Q Do you know whether the CD-R OM cost extra money?

3 A Yes, I do. It did.

4 Q Do you remember how much it cost?

5 A It seems something on the order of $130, according to

6 what I just saw this morning.

7 Q Do you remember Mr. Trabulus asking you about a good

8 feeling that you got from being approached by Who's Who

9 Worldwide?

10 A Yes, I do.

11 Q And do you remember him asking you whether it stroked

12 your ego?

13 A Yes, I do.

14 Q Do you remember him asking you whether that good

15 feeling came about before you actually purchased the

16 membership?

17 A Yes, I do.

18 Q Can you tell us what that good feeling was based on?

19 A It was based on the representation that was made to

20 me that, again, someone had nominated me for inclusion in

21 the organization and the Registry.

22 MS. SCOTT: Thank you, Mr. Spencer.

23 I have no further questions.

24
25

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3772
Spencer-recross/Trabulus

1 RECROSS-EXAMINATION

2 BY MR. TRABULUS:

3 Q Mr. Spencer, I should have told you before, that I am

4 Norman Trabulus, and Bruce Gordon sent me.

5 Incidentally, you said you are familiar with the

6 name of the defendant Gordon; is that correct?

7 A That's correct.

8 Q And you have never spoken to him; is that correct?

9 A That's correct.

10 Q And as you sit here today you have no knowledge of

11 what involvement -- no knowledge of what involvement he

12 had with Who's Who Worldwide; is that correct?

13 A I know in fact he was the president which was

14 indicated on some of the brochures and literature I saw

15 this morning, as well as that I had received in the mail.

16 Q You also have no knowledge as to whether he himself

17 was personally involved in determining that the people who

18 spoke to you said the things that they said to you; is

19 that right?

20 A I have no knowledge of that, right.

21 Q Now, you were asked by Ms. Scott things about your

22 job duties.

23 Is that correct that as an assistant vice
24 president you were a risk manager?
25 A That was not my official title.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3773
Spencer-recross/Trabulus

1 Q Was that something you actually did?

2 A Risk management is something I did, correct.

3 Q Was that managing risks for clients of the bank or

4 for the bank itself?

5 A Managing risk of the bank itself.

6 Q Did that involve you performing functions as a loan

7 officer?

8 A No, it did not.

9 Q Did it involve you dealing with customers of the

10 bank?

11 A No, i t did not.

12 Q While you were at the bank, did you have dealings

13 with customers of the bank?

14 A No.

15 Q Did you have any need --

16 THE COURT: You will have to slow down,

17 Mr. Trabulus.

18 MR. TRABULUS: Sure.

19 THE COURT: I lost you about two questions back.

20 Now, the jury, of course, kept up with you. I didn't.

21 If you want me to hear and have it register, you

22 will have to slow down.

23 MR. TRABULUS: Your Honor, I shall repeat the
24 last question.
25 Q Mr. Spencer, did you yourself have any need in your

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3774
Spencer-recross/Trabulus

1 work to deal with customers of the bank?

2 A No, I did not.

3 Q Did your work involve getting more customers for the

4 bank?

5 A No, it did not.

6 Q In what respect would networking have assist ed you in

7 your work for the bank when you were working at the bank?

8 A In my work for the bank it may have introduced me to

9 representatives of securities firms that we may have done

10 business with, at well as perhaps to find other

11 employment, should the need have arisen.

12 Q Now, the networking you were considering doing, was

13 networking that would have been within the Las Vegas area;

14 is that correct?

15 A Las Vegas, or the southwestern U.S.

16 Q If I were to tell you that there were 270 members of

17 Who's Who Worldwide who gave their city or location as

18 being Las Vegas, would that affect your judgment as to the

19 potential value that the CD-ROM might have had for

20 networking?

21 A Are you asking me today or at the time I would have

22 made a purchase decision?

23 Q Well, let me break it down.
24 Is it your understanding that a CD-ROM might
25 enable you to access information on the CD-ROM by

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3775
Spencer-recross/Trabulus

1 different parameters?

2 A Yes.

3 Q And would it surprise you if I told you that one of

4 the parameters on which you can access the information on

5 the CD-ROM that was published by Who's Who Worldwide was

6 by city location?

7 A No, it wouldn't.

8 Q Or by state, would that surprise to you?

9 A No, it wouldn't surprise me.

10 Q Going back to the time you first learned or heard

11 about the CD-ROM, would it have affected your judgment of

12 the possible value of the CD-ROM in networking, if you

13 would have known that there were 270 members in Las Vegas?

14 A Perhaps.

15 Q And that could have been of assistance to you in

16 networking; is that correct?

17 A It cou ld have.

18 MR. TRABULUS: Your Honor, I placed

19 Defendant's Exhibit S in the CD-ROM player, and if I may

20 approach the witness with my computer?

21 THE COURT: Yes.

22 (Counsel approaches the witness stand.)

23 Q Mr. Spencer, if you bear with me while I boot this
24 up.
25 (Whereupon, at this time there was a pause in the

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3776
Spencer-recross/Trabulus

1 proceedings.)

2 MR. TRABULUS: Your Honor, bear with me a moment.

3 THE COURT: That's all right. You are doing

4 better than I would have done with it, I can tell you

5 that. I don't know anything about it.

6 MR. TRABULUS: I may have to reboot.

7 THE COURT: Reboot? What does that mean?

8 MR. TRABULUS: Start the computer again. It sent

9 me one of those magic messages that I can't figure out.

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

11 proceedings.)

12 MR. TRABULUS: It was working well during

13 Ms. Scott's redirect. But it is failing for me, your

14 Honor.

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

16 proceedings.)

17 Q Mr. Spencer, do you see on the screen in front of

18 you, a heading, Who's Who Executive Club, and a list of

19 slots where various things could be entered?

20 A Yes, I do.

21 Q And have I just typed in Las Vegas?

22 A You have.

23 Q Has the number 270 just appeared on the screen?
24 A It has.
25 Q Has a list just appeared?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3777
Spencer-recross/Trabulus

1 A There is a list of the names, yes.

2 Q Would you please take a look at the names on the

3 left-hand corner, the first one being Abbott, the last

4 name Bevins, B E V I N S, in alphabetical order.

5 Just tell me if you recognize any of those

6 names.

7 A Personally, I do not recognize any of the names.

8 Q Have I scrolled down to another set of names?

9 A The next page, yes. You scrolled.

10 Q Now it says 21 out of 270?

11 A Yes, it does.

12 Q So, we are on the 21st name at the top of the page?

13 A It seems to be, yes.

14 Q Would you take a look at the rest of the names on

15 that page and tell me whether you recognize any of those.

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

17 proceedings.)

18 A I recognize one name.

19 Q Which name do you recognize?

20 A Gerlyn J. Clayton, C L A Y T O N, first name,

21 G E R L Y N, Gerlyn.

22 Q Who is that person?

23 A I believe that is a president or other officer of a
24 company called Consolidated Mortgage Corp.
25 Q In your business did you ever have any business with,

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3778
Spencer-recross/Trabulus

1 is it Mr. or Ms. Clayton?

2 A I believe it is Ms. Clayton. I personally did not.

3 Q Would Ms. Clayton be someone you might have occasion

4 to network in the course of your work at the bank?

5 A Perhaps.

6 Q Would you be able to network with Ms. Clayton

7 regardless of whether or not your name came from a mailing

8 list or had been nominated by another person?

9 A Potentially, yes.

10 Q And regardless of whether Ms. Clayton's name had come

11 from a mailing list, or nominated by another person, it

12 would not affect as to whether you would be able to

13 nominate with that person?

14 A Been able to network?

15 Q With Ms. Clayton.

16 A To be able to network with Ms. Clayton?

17 Q Correct.

18 A No, it would not be affected.

19 Q Now, have I put on the screen an entry for

20 information concerning Ms. Clayton?

21 A You have.

22 Q And it indicates among other things, her favorite

23 magazine is Money; does it not?
24 A It does.
25 Q Among hobbies and sports, she likes hiking and

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3779
Spencer-recross/Trabulus

1 football?

2 A It does.

3 Q Would this not be of some use if you were to have an

4 initial conversation with her just to enable you to be

5 able to strike up a conversation?

6 A Potentially it could have some use, yes.

7 Q I am going beyond another page beyond Ms. Clayton.

8 Take a look to see if there are any names there that might

9 be of use to you -- I am sorry, that are familiar to you?

10 A I don't recognize any other names there.

11 Q Continuin g with another page, do you see any more?

12 Again, take a look at it and see if there are any names

13 that are familiar.

14 A I don't recognize any of those names either.

15 Q Do you see any on this page?

16 A Names that are familiar to me?

17 Q Yes.

18 A No, I don't.

19 Q 81 out of 270 at the top of the page?

20 A Correct.

21 Q Okay, we will not proceed any further.

22 Now, Mr. Spencer, is it fair to say that you

23 would be able to network with people potentially whether
24 or not you would have known them in advance of joining the
25 organization; is that correct?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3780
Spencer-recross/Trabulus

1 A Yes, that's fair to say.

2 Q In fact, based upon your testimony you expected that

3 among all the people in Who's Who Worldwide, there would

4 be certainly one t hat you might have known; is that

5 correct?

6 A Yes.

7 Q The person whom you believed nominated you; is that

8 correct?

9 A That's correct.

10 Q And, again, you don't know as you sit here today as

11 to whether anybody did nominate you; isn't that correct?

12 A No, I don't.

13 Q Of all the other members of Who's Who Worldwide, you

14 would have no reason to believe that any of them may have

15 known you except insofar as the type of person they were,

16 the type of profession they had, that might cause them to

17 run across you; is that correct?

18 A Can you restate or repeat the question?

19 Q Sure.

20 Basically is it fair to say that except for the

21 person who nominated you, you would have no reason to

22 expect that you would have known anybody else?

23 A Well, I possibly could have known other people.
24 Q For example, and ce rtainly you knew the name of this
25 person that you saw; is that correct?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3781
Spencer-recross/Trabulus

1 A I knew the name, not the person.

2 Q Did you know a Karen Klein at Primerit Bank?

3 A Yes, I did.

4 Q Did you know she was a member of Who's Who Worldwide?

5 A No, I didn't.

6 Q Did you ask her as to whether or not she nominated

7 you?

8 A No, I didn't.

9 MR. TRABULUS: No other questions.

10 THE COURT: Anything else?

11 MS. SCOTT: Yes. May I ask from here?

12 THE COURT: Sure.

13

14 FURTHER REDIRECT EXAMINATION

15 BY MS. SCOTT:

16 Q You just had been looking at several entries from the

17 CD-ROM; is that correct?

18 A I am sorry?

19 Q Several entries from the CD-ROM.

20 A Yes, correct.

21 Q Did you ever see a directory produced by Who's Who

22 Worldwide before today?

23 A No, I didn't.
24 Q Did you ever see that information you had seen today
25 before today?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3782
Spencer-redirect/Scott

1 A No.

2 Q Now, when you spent $290 on this membership, were you

3 interested in networking with the people whose names were

4 taken from a mailing list?

5 A No, I was not.

6 Q And if the names had been taken from a mailing list,

7 is that something you would have wanted to know before

8 making a purchase?

9 A Yes, I would have wanted to know that.

10 MS. SCOTT: May I have one moment, your Honor?

11 THE COURT: Yes.

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

13 proceedings.)

14 MS. SCOTT: Thank you, no questions.

15 MR. JENKS: Just one, may I ask it from here?

16 TH E COURT: Yes.

17

18 FURTHER REDIRECT EXAMINATION

19 BY MR. JENKS:

20 Q The government makes an issue about the mailing list,

21 you heard position Scott ask you those questions?

22 A Yes.

23 Q Is it possible, and I use the words "possible" as you
24 sit here, that you were in fact nominated by someone else?
25 A To my knowledge it is possible.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3783
Spencer-redirect/Jenks

1 MR. JENKS: Thank you.

2 THE COURT: Anything else?

3 MR. WHITE: Nothing further.

4 THE COURT: You may step down, Mr. Spencer.

5 Please call your next witness.

6 (Whereupon, at this time the witness left the

7 witness stand.)

8 MR. WHITE: Your Honor, we will call some tapes

9 at this point.

10 THE COURT: Very well.

11 MR. WHITE: Your Honor, we are starting with

12 Exh ibit 1312. We are going to play the excerpt that is 13

13 12-B, for Baker.

14 The date of the conversation is October 28th,

15 1994. It is a call to Sterling Who's Who. The

16 salesperson on the tape at Sterling Who's Who is

17 identified as Robert Stanley, S T A N L E Y.

18 MR. SCHOER: So this is being offered only

19 against Sterling Who's Who?

20 MR. WHITE: Yes.

21 THE COURT: This is offered only against the

22 defendant Sterling Who's Who, members of the jury.

23 You may proceed.
24 (Tape is played.)
25 MR. WHITE: Your Honor, the next is

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3784

1 Exhibit 1317. We are going to play the excerpt which is

2 1317-A. The date of that conversation is November 3rd,

3 1994. It is a call to Who's Who Worldwide. And the

4 salesperson is Roseanne Patton, P A T T O N.

5 THE COURT: Roseanne --

6 MR. WHITE: Patton, like the general.

7 MR. NELSON: Again, your Honor, this is only

8 admissible against Who's Who Worldwide; is that correct?

9 MR. WHITE: That's correct, your Honor.

10 THE COURT: This evidence is only admissible

11 against the defendant Who's Who Worldwide, that's all.

12 (Tape is played.)

13 MR. NEVILLE: Was that name Rosemary or

14 Roseanne?

15 MR. WHITE: Roseanne.

16 MR. NEVILLE: Thank you.

17 MR. WHITE: The next exhibit is 1321, the excerpt

18 is 1321 A in the transcript book, the date of the

19 conversation is November 7th, 1994. It is a call to

20 Sterling Who's Who. And the salesperson is Sam

21 Christopher.

22 (Tape is played.)

23 MR. WHITE: The next exhibit is 1339. The
24 excerpt is 1339-B, for Baker in the transcript book. The
25 date is December 23rd, 1994. The call is to Who's Who

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3785

1 Worldwide. The salesperson is Sue Mantell, M A N T E L L.

2 (Tape is played.)

3 MR. WHITE: The next tape is 1343. The excerpt

4 is 1343-A. The date is January 23rd, 1995. It is a call

5 to Who's Who Worldwide. The salesperson is Linda May,

6 M A Y.

7 (Tape is played.)

8 MR. WHITE: The next is 1345, your Honor. The

9 excerpt is 1345-A.

10 THE COURT: Hold it a minute, please.

11 MR. WHITE: I am sorry.

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

13 proceedings.)

14 THE COURT: Would you repeat that.

15 MR. WHITE: Sure.

16 1345 is the exhibit. 1345-A is the transcript

17 excerpt. The date is January 25th, 1995. The call is to

18 Sterling Who's Who. And the salesperson is Paul Ware,

19 W A R E.

20 (Tape is played.)

21 M R. WHITE: The next one is 1348. The excerpt is

22 1348-A. The date is February 1st, 1995. The call is to

23 Sterling Who's Who. And the salesperson is Michael Cain,
24 C A I N.
25 (Tape is played.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3786

1 MR. WHITE: The next one is 1349. The excerpt is

2 1349-B, as in Baker. The date is February 2nd, 1995. It

3 is a call to Who's Who Worldwide. The salesperson is

4 Scott Matthews, M A T T H E W S.

5 (Tape is played.)

6 MR. WHITE: The next one is 1353. The excerpt is

7 1353 A. The date is November 30th, 1994. The call is to

8 Sterling Who's Who. And the salesperson is Michael Cain,

9 C A I N.

10 THE COURT: Hold it for a minute, please.

11 MR. WHITE: Yes.

12 THE COURT: You may proceed.

13 (Tape is played.)

14 MR. WHITE: The next one is 1362. The excerpt is

15 1362-A, the date of the all is December 21st, 1994. The

16 call is to Who's Who Worldwide. And the salesperson is

17 Jill Barnes.

18 (Tape is played.)

19 MR. WHITE: The next one is 1364. The excerpt is

20 1364-A, the date is December 23rd, 1994. The call is to

21 Who's Who Worldwide. And the salesperson is Greg Miller.

22 MR. NEVILLE: Sorry, I didn't hear that name.

23 MR. WHITE: Greg Miller.
24 MR. NEVILLE: Thank you.
25 (Tape is played.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3787

1 MR. WHITE: Your Honor, the next one is 1365.

2 The excerpt is 1365-A. The date is December 23rd, 1994.

3 The call is to Worldwide. And the salesperson is Roseanne

4 Patton, P A T T O N.

5 THE COURT: What was the last name?

6 MR. WHITE: Patton, P A T T O N.

7 (Tape is played.)

8 THE COURT: I think we will recess at this time.

9 If you are sufficiently unentangled by the wires

10 and head phones, we will recess for lunch until 1:30.

11 Please do not discuss the case. Keep an open

12 mind. See you at 1:30.

13 Have a nice lunch.

14 (Whereupon, at this time the jury leaves the

15 courtroom.)

16 (Luncheon Recess.)

17

18

19

20

21

22

23
24
25

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3788

1 A F T E R N O O N S E S S I O N

2

3 THE COURT: Is someone missing here?

4 MR. WALLENSTEIN: Mr. Geduldig went to get his

5 client.

6 THE CLERK: Jury entering.

7 (Whereupon, the jury at this time entered the

8 courtroom.)

9 THE COURT: Please be seated, members of the

10 jury.

11 MR. WHITE: Your Honor, the government calls

12 Debra Be njamin.

13 THE CLERK: Please raise your right hand.

14

15 D E B R A B E N J A M I N ,

16 called as a witness, having been first

17 duly sworn, was examined and testified

18 as follows:

19

20 THE CLERK: Please state your name and spell your

21 last name slowly for the record.

22 THE WITNESS: Debra Benjamin, B E N J A M I N,

23 first name, D E B R A.
24 MR. WHITE: May I proceed, your Honor?
25 THE COURT: Yes.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3789

1 MR. WHITE: Thank you.

2

3 DIRECT EXAMINATION

4 BY MR. WHITE:

5 Q Ms. Benjamin, can you tell us where you live?

6 A The street address?

7 Q No, what town?

8 A Island Park, New York.

9 Q And where do you work?

10 A I have my own gift shop in Long Beach.

11 Q And are you married?

12 A I am g etting married.

13 Q When are you getting married?

14 A Saturday.

15 Q Now, did you previously work at a company called

16 Who's Who Worldwide Registry?

17 A Yes, I did.

18 Q Can you tell us approximately when you worked there?

19 THE COURT: First of all, I can hardly hear you,

20 Ms. Benjamin. Pull the microphone closer to you, please.

21 And keep your voice up.

22 THE WITNESS: Okay.

23 It was in the fall of 1992, to March of 1995, I
24 believe.
25 Q And can you tell us what your position there was?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3790
Benjamini-direct/White

1 A Director of marketing and executive editor of Tribute

2 Magazine.

3 Q And let's start with director of marketing. Tell us

4 what your responsibilities were in that position?

5 A Basically it was to prepare the -- produce and

6 oversee the production of the solicitation letters,

7 provide benefits for the members, and then eventually, you

8 know, Tribute Magazine came about.

9 Q Tell us what you did in connection with Tribute

10 Magazine?

11 A I oversaw the whole production of it, including the

12 editorial staff.

13 Q Now, have you been granted immunity in connection

14 with your testimony at this trial?

15 A Yes, I have.

16 Q Is that grant of immunity set forth in a letter from

17 the U.S. Attorney's office?

18 A Yes, it is.

19 Q Tell us your understanding of the effect of that

20 immunity letter?

21 A The effect is I will not be prosecuted unless I was

22 to perjure myself.

23 Q Did you have any responsibilities at Who's Who
24 Worldwide with respect to the mailing of letters to
25 customers?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPOR TER

3791
Benjamini-direct/White

1 A Yes, I did.

2 Q Tell us what responsibility you had with respect to

3 that?

4 A Overseeing the entire production including the

5 purchase of the mailing lists themselves.

6 Q Did your responsibilities with respect to these

7 letters relate to Who's Who Worldwide only, or Sterling

8 Who's Who also?

9 A To both companies.

10 Q Now, the letters to be sent to both companies -- by

11 both companies, who would draft the language in that

12 letter?

13 A Mr. Gordon.

14 Q Who had the final approval over the language in those

15 letters?

16 A Mr. Gordon.

17 Q Now, Ms. Benjamin, in the binder I placed before you,

18 if you would take a look at the Exhibits 101 through 104

19 for Identification.

20 (Handed to the witness.)

21 Q Just page through and take a look at each one of

22 them.

23 A All right.
24 Q Now, first of all, do you recognize what those are?
25 A Yes.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3792
Benjamini-direct/White

1 Q What are they?

2 A Those are drafts of the solicitation letters.

3 Q Are there any handwritten edits to the body of those

4 letters?

5 A Yes.

6 Q Do you recognize whose handwriting the edits are in?

7 A Most are Mr. Gordon's. On 104 there is one of mine

8 where it says you may even.

9 Q Okay.

10 Now, when Mr. Gordon would include the language

11 to be included in a solicitation letter, how would he

12 indicate his approval?

13 A You mean when it was ready to be produced?

14 Q Yes.

15 A It would have to have -- it would say okay, BG.

16 Q Now, if you could turn in that binder to Exhibits 106

17 through 138 for Identif ication.

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

19 proceedings.)

20 Q Have you paged through each of them?

21 A Yes.

22 Q In addition to just now, have you also reviewed these

23 exhibits prior to your testimony?
24 A Yes.
25 Q Tell us what they are.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3793
Benjamini-direct/White

1 A They are final copies of the solicitation letters

2 that were going to be produced, produced for mailings.

3 Q Do they contain any notation of approval?

4 A Yes.

5 Q What sort of notation of approval do they contain?

6 A They have my okay and Mr. Gordon's okay.

7 Q Now, when a letter was finalized and mailed out to a

8 potential customer, would a copy of the letter be retained

9 by Worldwide or Sterling?

10 A Yes.

11 Q Who was responsible for maintaining copies of these

12 letters?

13 A Liz Sautter.

14 Q Tell us who Liz Sautter is?

15 A She was the office manager.

16 Q The office manager for which company?

17 A Who's Who Worldwide.

18 Q Did she perform that function with respect to the

19 Sterling letters as well?

20 A Yes.

21 Q Now, where is it that Ms. Sautter would maintain

22 these letters?

23 A They were in binders kept in the administration
24 office.
25 Q Would any notation be made on these letters before

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3794
Benjamini-direct/White

1 being placed in these binders?

2 A Yes.

3 Q First of all, who would put the notation in?

4 A In most cases it would be Liz.

5 Q And what sort of notation would she put?

6 A It would have what list it was, what mailing house

7 took care of it, how many p ieces were mailed, and any code

8 on the BRC, business reply card.

9 Q And the business reply card would be included with

10 the letter?

11 A Yes.

12 Q And would Ms. Sautter type or handwrite this

13 information?

14 A Handwrite.

15 Q And generally speaking, where on the letter would

16 those handwritten notations been made?

17 A Usually at the top.

18 Q If you can now look at Exhibits 139 through 286,

19 which is the balance of that binder.

20 THE COURT: Is this for identification?

21 MR. WHITE: Yes, for identification, your Honor.

22 I am sorry.

23 (Whereupon, at this time there was a pause in the
24 proceedings.)
25 THE WITNESS: Mr. White, do you want me to go

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3795
Benjamini-direct/White

1 through it page by page?

2 Q Let me ask you this --

3 THE COURT: Have you gone through them before?

4 THE WITNESS: Yes.

5 MR. WHITE: That was my question.

6 THE COURT: Okay.

7 Q Have you previously reviewed this before your trial

8 testimony?

9 A Yes.

10 Q Let me also show you Government's Exhibit 1100

11 through 1146, also for identification.

12 (Handed to the witness.)

13 Q Have you also reviewed those prior to trial?

14 A Yes.

15 Q Of those, 139 through 286 and 1100 through 1146, can

16 you tell us what they are?

17 A Those are final copies of the actual letters that

18 actually went out in the mail.

19 Q And how is it that you recognize them?

20 A You mean the notations or the letters themselves?

21 Q How is it you know what they are?

22 A Because I was involved in the production of the

23 letters.
24 Q Do you see handwriting on all or most of the those

25 documents?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3796
Benjamini-direct/White

1 A Yes.

2 Q What handwriting do you see?

3 A Liz, Liz Sautter's handwriting.

4 Q And do you see the notations that you described

5 before?

6 A Yes, I do.

7 Q And what companies are those letters from?

8 A They are from Who's Who Worldwide, and I believe some

9 are from Sterling as well.

10 Q Now, was it the regular practice of Who's Who

11 Worldwide and Sterling Who's Who to make and keep those

12 sort of records?

13 A Yes.

14 Q And were those letters made and kept in the regular

15 course of Worldwide's and Sterling's business?

16 A Yes.

17 MR. WHITE: Your Honor, the government would

18 offer Exhibits 101 through 104, 106 through 286, and 1100

19 through 1146.

20 THE COURT: Any objection?

2 1 MR. TRABULUS: May I have a voir dire, your

22 Honor?

23 THE COURT: Yes.
24
25

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3797
Benjamini-direct/White

1 VOIR DIRE EXAMINATION

2 BY MR. TRABULUS:

3 Q Good afternoon, Ms. Benjamin.

4 A Hello.

5 Q I am Bruce Gordon's lawyer.

6 Are you familiar with the contents of all the

7 exhibits which you have just been asked to identify?

8 A Yes.

9 Q Is it correct that not a single one of those letters

10 states that the person to whom it is addressed necessarily

11 was nominated by another member?

12 MR. WHITE: Objection.

13 THE COURT: Sustained.

14 You can get into that on cross-examination,

15 Mr. Trabulus, if you choose to do so.

16 MR. TRABULUS: No further questions.

17 THE COURT: Any objection?

18 MR. SCHOER: May we object?

19 MR. JENKS: Yes.

20 THE COURT: You object?

21 MR. JENKS: I will object.

22 THE COURT: Did somebody say they want to

23 approach?
24 MR. SCHOER: Yes, your Honor.
25 THE COURT: All right, come up.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3798
Benjamini-direct/White

1

2 (Whereupon, at this time the following took place

3 at the sidebar.)

4 MR. SCHOER: May we just speak among each other,

5 Judge?

6 THE COURT: Sure, go ahead.

7 (Defense counsel confer.)

8 THE COURT: Yes, Mr. Jenks.

9 MR. JENKS: Your Honor, we all address to the

10 introduction of letters here on many grounds.

11 Many of the letters attached to these exhibits

12 actually precede the employment of Ms. Benjamin.

13 Ms. Benjamin testified she was employed in the fall of

14 1992.

15 For instance, Government's E xhibit 139 is dated

16 March 6th, 1990. Government's Exhibit 140, for instance

17 is dated March 25th, 1990. Government's Exhibit 141 is

18 April 1990.

19 Your Honor, there is a whole host of letters he

20 is seeking to introduce through her which was obviously

21 created before she was employed there. So she could not

22 possibly have knowledge as to the creation of these

23 letters and so forth, since she wasn't there.
24 Another thing is many are duplicative in that
25 they say the same exact thing over and over and over

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3799
Benjamini-direct/White

1 again. I think it would be more appropriate and fair to

2 all the defendants if just one copy of a given content of

3 a letter comes in, not 100 different letters saying the

4 same exact thing.

5 Those are the bases of the two objections.

6 THE COURT: The first ground of the objection

7 that some of the letters precede Ms. Benjamin's date of

8 commencement of employment, that is overruled. I think I

9 gave you, and I mentioned authority that the person who

10 identifies the business record need not even be an

11 employee of the corporation.

12 Here is a woman who is pretty high up in the

13 company. She is the head of --

14 MR. WHITE: The director of marking she said.

15 THE COURT: The director of marketing, my

16 goodness. She was also in charge of the book, the

17 magazine. Because the other witness who was here, whose

18 name escapes me?

19 MR. WHITE: Ms. Konopka.

20 THE COURT: Now I know why I didn't remember her

21 name. But she said that Debra Benjamin is her boss. So

22 that objection is overruled. She can certainly identify

23 the records as a business record.
24 The next objection that it is duplicative is
25 overruled. You have a situation where you have 50,000

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3800
Benjamini-direct/White

1 members, and maybe more. Here we don't have anything like

2 that, the number of letters?

3 MR. WHITE: I believe there are 200 over a five

4 year period.

5 THE COURT: These are solicitation letters?

6 MR. SCHOER: They are a form made out to the same

7 person.

8 MR. WHITE: No, they are not. Why don't you read

9 them.

10 THE COURT: They are not duplicative?

11 MR. WHITE: Each one is a version of a letter

12 that was sent out.

13 THE COURT: They are all different?

14 MR. WHITE: They are all different in that

15 sense. They are all different to some degree more or

16 less.

17 THE COURT: They are all different. The drafts

18 are ce rtainly different. Your objection is overruled.

19 Anything else?

20 MR. JENKS: That's it.

21

22 (Whereupon, at this time the following takes

23 place in open court.)
24 THE COURT: Government's Exhibit 101 through
25 286 --

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3801
Benjamini-direct/White

1 MR. WHITE: No, your Honor, 101 through 286, but

2 excluding 105.

3 THE COURT: All right, 101 through 286, excluding

4 185 -- 105, and 1100 through 1146 in evidence.

5 (Government's Exhibits 101 through 104 received

6 in evidence.)

7 (Government's Exhibits 106 through 286 received

8 in evidence.)

9 (Government's Exhibits 1100 through 1146 received

10 in evidence.)

11

12 DIRECT EXAMINATION (Cont'd)

13 BY MR. WHITE:

14 Q Ms. Benjamin, from where had the companies obtained

15 the names of the people from which the solicitation

16 letters were sent?

17 A The mailing lists.

18 Q Were you involved in the procurement of those mailing

19 lists?

20 A Yes, I was.

21 Q And who made the final decision at Worldwide and

22 Sterling regarding what mailing list was to be used by the

23 company?
24 A Mr. Gordon.
25 Q Tell us what role you had in the procurement of these

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3802
Benjamini-direct/White

1 mailing lists?

2 A I would get the recommendations from the different

3 list brokers, and go over -- scrutinize them and go over

4 it with Mr. Gordon as to which ones would be best for us

5 to mail.

6 Q Did you mention mailing list brokers before?

7 A Yes.

8 Q Tell us what a mailing lists broker is?

9 A Those are firms or people who have mailing lists

10 available for anyone to use.

11 Q And does the mailing list broker collect a fee?

12 A Yes, they do.

13 Q How does that work?

14 A They charge usually by the thousand for the different

15 names, and if there is a title select or any kind of

16 specification, segmentation of the list.

17 Q Now is the mailing list broker the owner of the list?

18 A No.

19 Q Tell us where the owner of the list fits in?

20 A The owner of the list allows them to broker the list

21 for them. In other words, like a publishing company might

22 rent -- sell their list, it generates revenue.

23 Q Now, can you tell us during the time period you
24 worked at Who's Who Worldwide, who were the primary list
25 brokers that were used by the companies?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3803
Benjamini-direct/White

1 A Tony Murra y and Associates.

2 THE COURT: How do you spell that?

3 THE WITNESS: T O N Y, last name is M U R R A Y

4 Associates.

5 Q Any others?

6 A Yes, Listworks.

7 Q That's L I S T W O R K S?

8 A That's correct.

9 Q All one word?

10 A Uh-huh.

11 Q Now, when the companies would rent a mailing list

12 from a list broker, would they issue any paperwork to the

13 list broker?

14 A Could you ask the question again?

15 Q I will rephrase it.

16 When a company rented a mailing list from a list

17 broker, would they issue a purchase order to the list

18 broker?

19 A Yes.

20 (Handed to the witness.)

21 Q If you can take a look through that binder and flip

22 to Exhibits 323 to 325 for Identification.

23 (Whereupon, at this time there was a pause in the
24 proceedings.)
25 Q Do you recognize what Exhibits 323 through 325 are?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3804
Benjamini-direct/White

1 A Yes. They are purchase orders.

2 THE COURT: Purchase orders for what?

3 THE WITNESS: I am sorry, for mailing lists.

4 Q From whom to whom?

5 A Well, they are from Who's Who to the different list

6 brokers. 323 was not my purchase order. I want you to be

7 aware of that.

8 Q Okay, I understand.

9 Were the purchase orders such as those issued in

10 the regular course of Who's Who Worldwide's business?

11 A Yes.

12 Q Were they made as part of Who's Who Worldwide's

13 regularly conducted business?

14 A Yes.

15 MR. WHITE: The government offers 323 through

16 325.

17 THE COURT: Any objection?

18 MR. TRABULUS: No.

19 THE COURT: Government's Exhibits 323, 324 and

20 325 in evidence.

21 (Government's E xhibit 323 received in evidence.)

22 (Government's Exhibit 324 received in evidence.)

23 (Government's Exhibit 325 received in evidence.)
24 Q Ms. Benjamin, once you rented a list from a list
25 broker, would the list broker provide Worldwide or

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3805
Benjamini-direct/White

1 Sterling with an invoice?

2 A Yes.

3 Q Now, during the course of your duties at Who's Who

4 Worldwide would you have occasion to review those

5 invoices?

6 A On some occasions, yes.

7 Q And if you could turn in that same book to

8 Exhibits 301 through 322.

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

10 proceedings.)

11 Q Have you reviewed those exhibits?

12 A Yes.

13 Q Can you tell us what they are?

14 A List rental invoices.

15 THE COURT: What are they?

16 THE WIT NESS: List rental invoices.

17 Q And from whom are the invoices?

18 A They are from Tony Murray & Associates. They were

19 from Tony Murray & Associates.

20 Q Now, were copies of such invoices regularly retained

21 in Who's Who Worldwide's files?

22 A Yes.

23 Q And was that done in the regular course of
24 Worldwide's business?
25 A Yes.

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1 Q And was that done as part of Worldwide's regularly

2 conducted business?

3 A I would think so. It was not something that I did,

4 the actual invoices that was maintained in the

5 administration.

6 Q Were you aware that they were maintained there?

7 A Yes.

8 MR. WHITE: Your Honor, the government would

9 offer Exhibits 301 through 322.

10 THE COURT: Any objection?

11 MR. TRABULUS: No.

12 THE COURT: Government's Exhibits 301 through 322

13 in evidence.

14 (Government's Exhibits 301 through 322 received

15 in evidence.)

16 THE COURT: Incidentally, I don't have any of

17 those exhibits, but continue. Don't worry about that.

18 MR. WHITE: Okay.

19 Q Ms. Benjamin, if you can take a look at this exhibit

20 book.

21 (Handed to the witness.)

22 Q And if you can -- I am going to read off a list of

23 the exhibits, if you can take a look at them.
24 First, 900 through 931 -- actually, let me read
25 the entire list.

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1 900 through 931, 943 through 948, 950 through

2 1016, 1018, 1025 and 1026, 1028 and 1029.

3 Now, Ms. Benjamin, have you previously reviewed

4 those exhibits?

5 A Yes.

6 Q Can you tell us what they are?

7 A They are invoices from Listworks for list rentals.

8 THE COURT: I didn't hear you.

9 THE WITNESS: Invoices from Listworks for list

10 rentals.

11 Q Were they invoices to Who's Who Worldwide or

12 Sterling?

13 A Yes.

14 Q And were you aware whether or not copies of those

15 invoices were regularly retained in Worldwide's or

16 Sterling's files?

17 A Yes.

18 Q And were they?

19 A Yes, they were.

20 Q And was that done in the regular course of Who's Who

21 Worldwide and Sterling Who's Who's business?

22 A Yes.

23 Q And were they retained as part of the company's
24 regularly conducted business?
25 A Yes.

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1 MR. WHITE: Your Honor, the government would

2 offer those exhibits, and I will read t hem again if you

3 like.

4 THE COURT: You don't have to. Any objection?

5 MR. TRABULUS: No.

6 THE COURT: Government's Exhibit 900 through 931,

7 943 through 948, 950 through 1016, 1018, 1025, 1026, 1028

8 and 1029 in evidence.

9 (Government's Exhibits 900 through 931 received

10 in evidence.)

11 (Government's Exhibits 943 through 948 received

12 in evidence.)

13 (Government's Exhibits 950 through 1016 received

14 in evidence.)

15 (Government's Exhibit 1018 received in evidence.)

16 (Government's Exhibit 1025 received in evidence.)

17 (Government's Exhibit 1026 received in evidence.)

18 (Government's Exhibit 1028 received in evidence.)

19 (Government's Exhibit 1029 received in evidence.)

20 Q If you can look at 1024 in evidence, and take it out

21 of plastic sleeve there. Tell us what it is?

22 A A purchase order from Who's Who World wide to Tony

23 Murray & Associates.
24 Q You sent it to the list brokers?
25 A Yes.

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1 Q Tell us what the date is?

2 A February 22nd, 1994.

3 Q Is there a signature at the bottom?

4 A Yes.

5 Q Whose signature is that?

6 A It is mine.

7 Q And if you can look through the entire document and

8 the attachments, tell us what the total cost of the list

9 rental is on this purchase order?

10 A $111,320.

11 Q Now, does that document indicate what specific lists

12 are being rented in connection this purchase order?

13 A Yes.

14 Q Where does it indicate that?

15 A On the attachment.

16 Q The attachment is a letter to Tony Murray &

17 Associates from you?

18 A Yes.

19 Q If you can look at the third entry in your letter,

20 the one beginning with Economics Press, and -- I will read

21 it aloud for us slowly.

22 It says Economics Press/select 50,000 actives,

23 A C T I V E S, and 50,000 female subs, S U B S, at $90 per
24 M, capital M, total $9,000.
25 Now, first of all, it says Economics Press, what

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1 does that refer to?

2 A The name of the publication or publishing company.

3 Q Now, in connection with mailing lists, have you ever

4 heard the term "segment?"

5 A Yes.

6 Q Tell me was a segment of a mailing list is?

7 A A segment of a mailing list is if you specify you

8 want a certain household income or certain gender; many

9 different categories.

10 Q Can the list be broken down by these different

11 segments?

12 A Some lists can and so me can't.

13 Q In this case what segment of the Economics Press list

14 are you ordering?

15 A 50,000 active subscribers and 50,000 female

16 subscribers.

17 THE COURT: 50,000 what? Active?

18 THE WITNESS: Active, meaning current

19 subscribers.

20 Q What does that mean, active subscribers and female

21 subscribers?

22 A For whatever reason this particular company chose to

23 break out their female subscribers who obviously have an
24 interest in economics versus the rest of the population,
25 and the active subscribers would be people currently

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1 subscribing to this companies publications.

2 Q Economics Press is making a list of the to Tony

3 Murray and Associates of its subscribers?

4 A Yes.

5 Q And people on the list are people wh o subscribe to

6 this company?

7 A Yes.

8 Q Okay.

9 If you can take a look at the two entries down,

10 it says INC Magazine, what does that refer to?

11 A Another list rental.

12 Q What is INC magazine?

13 A A magazine for people interested in business

14 predominantly.

15 Q Now, again, what segment of the list are you

16 purchasing in that case?

17 A 50,000 active subscribers, and 75,000 female

18 subscribers.

19 Q The next entry, or the next list you are ordering is

20 what?

21 A Lear's magazine.

22 Q Tell us what Lear's magazine is?

23 A It is a magazine that is now defunct, but it is for
24 women over 40 who reportedly have a very high economic
25 capability.

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1 Q When you say they reportedly had high in come

2 capability, how do you know that?

3 A Based on the breakdown that is given from the list

4 broker.

5 Q If you can go up a few entries where it says Crain,

6 C R A I N, Communications. What was Crain Communications?

7 A Crain Communications is a business publication.

8 Q And what segment of the Crain Communications list are

9 you ordering?

10 A Top executives, CEOs -- I can't read the next word --

11 and 100,000 U.S. actives.

12 Q Okay.

13 What does that mean, U.S. actives?

14 A Meaning active subscribers, current subscribers to

15 the publications.

16 Q Now, does that mean they have to be active

17 subscribers and they have to be a president, a top

18 executive or CEO also?

19 A That is what it is supposed to be.

20 Q That's what you are ordering?

21 A Yes, that's what we are ordering.

22 Q If you can turn to the nex t page, the second page of

23 your letter.
24 The two entries on the top of that page, what
25 lists are you ordering there?

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1 A U.S. News & World Report, and Working Woman Magazine.

2 Q What segment of each of those lists are you ordering?

3 A On U.S. News and World Report, it was 100,000 active

4 subscribers. On working Woman Magazine it was 53,785 of

5 the last six months hotline, which is subscribers who call

6 in and subscribe by telephone.

7 Q Can you tell from looking at the letter what is the

8 total number of mailing lists you are ordering in

9 connection with this one purchase order?

10 A 1,200,000.

11 Q Can you tell us what the typical size of a mailing

12 solicitation letter for Sterling and Worldwide was?

13 A I would say in the range of 50,000.

14 Q If you can flip back to Exhibit 304, an invoice from

15 Tony Murray & Associates.

16 What is the date of that invoice above the

17 Exhibit sticker?

18 A July 8th, 1992.

19 Q Tell us what list is being rented by Worldwide on

20 that invoice?

21 A This is not while I am in play there.

22 Q I understand.

23 A It was Barron's.
24 THE COURT: B A R R O N apostrophe S.
25 Q Tell us what Barron's is?

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1 A A financial publication.

2 Q What segment of that list are you ordering here?

3 A It wasn't me ordering the list.

4 Q Who's Who is ordering?

5 A Active subscribers at business addresses.

6 Q And what does that mean, at the business address?

7 A It means that the subscription is going to their

8 business address as opposed to their home address.

9 Q So, if someone were subscribing to Barron's and gave

10 Barron's the home address should they be on that list?

11 A They should not be, no.

12 Q If you could flip to Exhibit 306.

13 What is the date of that invoice?

14 A August 15th, 1992 -- I am sorry, excuse me, July

15 20th, '92.

16 Q And, again, that was before the time you were

17 employed by the company?

18 A Yes.

19 Q Tell us what list is being rented by Worldwide on

20 that invoice?

21 A Official Airline Guide, frequent fliers.

22 Q Can you explain to us what that is?

23 A The OAG, the Official Airline Guide, is used by
24 airlines with respect to business travel schedules, it has
25 listings of most of the airlines and their flights.

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1 Q What segment of that list are you ordering?

2 A 25,000 active U.S. subscribers.

3 Q All right.

4 Flip to Exhibit 309.

5 What is the date of that invoice?

6 A September 27th, 1993.

7 Q On the left where it says client, does your name

8 appear?

9 A Excuse me. There seems to be something wrong with

10 this.

11 Q Let me take a look.

12 A The invoice is nine months after the --

13 (Counsel approaches the witness stand.)

14 Q So, you were pointing out to the invoice date having

15 a different year than the mailing date below it; is that

16 what you said?

17 A Yes.

18 Q And on the left where it has client, does your name

19 appear there?

20 A Yes, it does.

21 Q And when did you start working at the company again?

22 A September of '92, I believe.

23 Q Now, what list is being purchased or rented on this
24 invoi ce?
25 A Financial Publishing company book buyers.

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1 Q Explain to us what that means?

2 A Financial Publishing from what I remember did

3 seminars and published books for accountants, C.P.A.s,

4 CFOs, anyone in the financial planning or accounting area.

5 Q Is this a list of people who bought books from that

6 company?

7 A That's correct.

8 Q And what segment of the list are you publishing?

9 A 25,000 active book buyers.

10 Q The final one in this series if you look at

11 Exhibit 313. What list are you renting on that invoice?

12 A Macworld.

13 Q M A C W O R L D, all one word.

14 What is Macworld?

15 A I know it has something to do with computers. But I

16 don't know what the general break down of it is.

17 Q Do you know if it is a p ublication or something else?

18 A Yes. It was a publication.

19 Q What is the segment of the list you are purchasing

20 there?

21 A 85,000 -- it looks like 85,000 active subscribers.

22 Q All those invoices I have been asking you about are

23 from Tony Murray & Associates; is that correct?
24 A They look like. Some have a masthead and some don't.
25 Q Let me show you the binder containing the Listworks

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1 invoices.

2 If you can first take a look at the one on top,

3 Exhibit 900 in evidence.

4 What list is being rented with respect to that

5 invoice?

6 A The TWA Ambassador's Club membership.

7 Q Explain what that is referring to?

8 A The Ambassador Club is for frequent fliers or first

9 class fliers. Usually people who belong to that are

10 business people.

11 Q What segment of the list are you purchasing?

12 A It looks like 80,000 active members.

13 Q Now turn to -- if you turn to 902, what list is being

14 rented there?

15 A American Express cards members.

16 Q What segment of that lists are you requesting or

17 being billed for?

18 A About 100,000.

19 Q And in what particular segment is being billed for?

20 A Members with business address -- members with

21 business addresses.

22 Q If you can flip to Exhibit 921.

23 Tell us, first of all, the date of that invoice?
24 A November 14th, 1994.
25 Q And what list is being rented there?

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1 A American Bar Association members.

2 Q And that's a lawyer's group; is that right?

3 A That's correct.

4 Q And what seg ment of the list are you purchasing?

5 A 25,000, one per firm, from firms with six or more

6 attorneys.

7 Q Let me make sure we understand this.

8 The list is one attorney at each firm that has

9 six or more attorneys?

10 A Uh-huh.

11 THE COURT: Yes?

12 THE WITNESS: Yes. Sorry.

13 Q Now in connection with -- let me back up.

14 Were you involved during your time at Who's Who

15 Worldwide, the renting of lists relating to the American

16 Bar Association?

17 A Yes.

18 Q Including this one?

19 A Yes.

20 Q And that particular type of segment, one attorney at

21 a firm with six or more attorneys, did you have any

22 discussion with Mr. Gordon relating to that type of a

23 segment of a list?
24 A Yes. He had suggested it, so six attorneys at the
25 same firm didn't get the same letter.

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1 Q Did Mr. Gordon explain why he wanted that segment of

2 the list?

3 A Which segment? You mean --

4 Q The one attorney at each firm?

5 A Yes. You mean rather than taking six at a firm? Is

6 that your question? Why select one?

7 Q Yes. Why was this particular segment selected?

8 THE COURT: So that was not your question, as the

9 witness just said? The question is: Why were American

10 Bar Association members selected? Is that your question?

11 MR. WHITE: No. I guess I have confused

12 everyone. Let me start again.

13 THE COURT: I guess I missed it myself. That

14 means it wasn't very clear, Mr. White.

15 MR. WHITE: Obviously, your Honor.

16 Q The entire list contains all the members of the ABA;

17 is that right?

18 A I would presume so, yeah.

19 Q And the request in t his case was that only one such

20 letter would go to each firm; is that right?

21 A That's right.

22 Q Now, that particular segment, did you have a

23 discussion with Mr. Gordon regarding why he wanted that
24 particular type of segment?
25 A Again, are you referring to why he only wanted one at

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1 each law firm?

2 Q Yes.

3 A Because it would not -- it would have decreased the

4 prestige of Who's Who Worldwide membership if six people

5 at the same firm got the same letter on the same day.

6 Q So, if only one per firm got it, they wouldn't

7 realize that other people were getting the same letter on

8 the same day?

9 MR. JENKS: Objection.

10 THE COURT: Sustained.

11 Q Tell us what at the time you ordered lists from the

12 American Bar Association, what you knew about the names on

13 the list?

14 A What I knew about the names on the list?

15 Q Right. What did you know about this list before it

16 was ordered?

17 A That it was attorneys.

18 Q Now, did you have information at the time you ordered

19 the list regarding the individual career achievements of

20 those people on the list other than they were attorneys?

21 A No.

22 Q Did you have any information at the time you ordered

23 the list whether they were good or bad attorneys?
24 MR. LEE: Objection.
25 THE COURT: Good or bad attorneys? Sustained. I

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1 don't know what that means.

2 Q Did you have any information regarding whether or not

3 the attorneys on that list had ever been disbarred?

4 A Well, I wouldn't presume the y would be a member of

5 the American Bar Association if they were disbarred.

6 Q Okay.

7 Aside from the fact that they were members of the

8 ABA, did you know anything else about the members on the

9 list?

10 A No.

11 Q If you can take a look at Exhibit 970.

12 What list is being ordered there?

13 A Food Business.

14 Q What is Food Business?

15 A Food Business is a publication, a trade publication

16 that goes to people in the food industry. In this case it

17 was corporate management.

18 Q What is the segment of this list that you are

19 renting?

20 A 16,920 corporate management positions.

21 Q What does that mean, corporate management positions?

22 A Depending on how the list was broken down, this is a

23 trade paper or magazine. Corporate magazine can be broken
24 down usually to chairmen, CEO, vice presidents,
25 direc tors. I don't know offhand if this was a qualified

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1 subscription or how it worked.

2 Q Only people with those titles would get the mailing;

3 is that correct?

4 A Presumably.

5 Q If you could now look at 976, and this is the last

6 one.

7 What list is being ordered there?

8 A Advanced Star top corporate executives.

9 Q Is there a particular segment of that list that you

10 are ordering?

11 A It appears to be 100,000 charimen presidents, CEOs,

12 CFOs and executive vice president.

13 Q You were put that aside now.

14 Once the mailing lists were selected, can you

15 explain the process by which the solicitation letters were

16 sent out to various customers?

17 A In terms of the actual production of the letter.

18 Q What would you do o nce you select the mailing list?

19 A The mailing house would get the tape. They would run

20 the tape, you know, do whatever they have to do with it to

21 process the tape. Mr. Gordon would say what letter he

22 would like sent with that, and the BRCs would be coded.

23 Q You mentioned the tape. What is the tape?
24 A The tape is what the list -- the list agency like
25 Listworks gets from the publishing company and has the

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1 names and addresses on it.

2 Q The computer tape that has all the names and

3 addresses?

4 A Uh-huh, yes.

5 Q And the mailing list broker sends that to who?

6 A The mailing house.

7 Q What is a mailing house?

8 A It is a person -- it is a place where mass mailings

9 are done.

10 Q Were there mailing houses that Sterling Who's Who and

11 Who's Who Worldwide used while you were employed there?

12 A Yes.

13 Q Tell us which ones were used?

14 A Fala, F A L A, direct marketing.

15 Q Direct marketing?

16 A Uh-huh.

17 Q Any others?

18 A Show Case.

19 Q Any others?

20 A Metro Seliger.

21 Q M E T R O S E L I G E R.

22 Now, can you tell us where these mailing firms

23 were located?
24 A Fala and Show Case were located on Long Island. And
25 Metro Seliger who is in the Long Island City, Astoria area

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1 of Queens.

2 Q Now, were these -- from where did these mailing

3 houses mail the Worldwide and Sterling solicitation

4 letters?

5 A From the post office. Is that the question?

6 Q Yes.

7 A The post office.

8 Q Did any of the mailing houses have post offices on

9 the premises?

10 A Yes.

11 Q Which one?

12 A Offhand I think Fala did and Metro Seliger.

13 Q Do you know which post office Show Case used?

14 A It was Hauppauge, or wherever he had his place.

15 Q Were the post offices, though they varied all on Long

16 Island?

17 A I don't know. I would presume. Although Metro

18 Seliger was in Queens.

19 Q I am talking about the ones that Show Case used?

20 A I presume they were, yes.

21 Q Now, with these letters you mentioned there was a

22 BRC, a business reply card.

23 A Uh-huh.
24 Q What was the purpose of those cards?
25 A Once a person got the solicitation letter, that they

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1 could respond if they were interested in becoming a member

2 o f Who's Who Worldwide or Sterling Who's Who.

3 Q Now, earlier you mentioned that the cards had a code

4 on them. Where was the code?

5 A Usually bottom right-hand corner.

6 Q And what did the code refer to?

7 A The mailing list that was used.

8 Q And why was such a code included on the cards?

9 A I guess to track returns.

10 Q And what do you mean when you say track returns?

11 A To see which list or which letter was getting a

12 better response.

13 Q Now, who at Worldwide or Sterling would track the

14 response rate to mailings?

15 A Mr. Gordon.

16 Q You said you started in Worldwide in September of

17 1992; is that correct?

18 A That's right.

19 Q When you started in September of 1992 did Who's Who

20 Worldwide have or use nomination ballots?

21 A No.

22 Q Did there eventually come a time that Worldwide or

23 Sterling dis tributed nomination ballots to its members?
24 A Yes.
25 Q Can you tell us approximately when that was?

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1 A I think it was sometime in the latter portion of '93.

2 Q Whose idea was it to start to use nomination ballots?

3 A I had asked Mr. Gordon about it.

4 Q Approximately when did you have this discussion?

5 A I would say a few months after -- well, around the

6 first of the year, a little thereafter.

7 Q The first of what year?

8 A '93, I am sorry.

9 Q Now, tell us as best as you can recall what you said

10 in this conversation and what Mr. Gordon said?

11 A There seemed no way for people, for members to

12 nominate other people. So I thought it made sense for

13 them to have some kind of form to fill out, because we get

14 things by fax or phone c all. They were I guess calling

15 in. Mr. Gordon was opposed to it at the time, because it

16 looked like you were begging for members. So he didn't

17 want to do like a general mailing of nomination ballots.

18 Q At any time did you have a discussion with Mr. Gordon

19 regarding the cost of instituting nomination ballots?

20 A Yes.

21 Q And when was that?

22 A That was -- well, at the time people became members,

23 they got a packet, and there was not going to be a mailing
24 just to the mail nomination ballots to existing members.
25 Q So, tell us about the conversation, if any, that you

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1 had with Mr. Gordon about the cost of the ballots?

2 A About the cost of the ballots? You mean printing

3 them, mailing them?

4 Q Of instituting nomination ballots in the first

5 instance.

6 A He just didn't think it was necessary at the time.

7 Q Now, after the nomination ballots were instituted in

8 late 1993, can you tell us from your observation what

9 percentage of the names of potential customers were

10 obtained from those ballots?

11 MR. SCHOER: Objection.

12 MR. JENKS: Objection.

13 THE COURT: What grounds?

14 MR. SCHOER: Basis.

15 THE COURT: You will have to lay a foundation for

16 that.

17 MR. WHITE: Okay.

18 Q After late 1993, would you have occasion to see the

19 incoming mail of the companies?

20 A Sometimes, yes.

21 Q And were nomination ballots distinguishable in any

22 way from the typical lead cards?

23 A Yes.
24 Q In what way were they distinguishable?
25 A They were usually vividly colored, purple or

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1 turquoise and so forth.

2 Q After the mail was received by the companies, what

3 was done with it?

4 A It was sorted according to codes.

5 Q Did you ever have occasion to observe that sorting

6 process?

7 A Uh-huh.

8 Q During the course of observing the incoming mail and

9 the sorting process, were you able to observe the

10 approximate percentage or number of ballots versus lead

11 cards?

12 A Yes.

13 Q Let me ask you the question then.

14 From your observation what percentage of the

15 names of potential customers after the ballots were

16 instituted --

17 MR. JENKS: Objection.

18 Q -- actually came from nomination ballots?

19 THE COURT: What ground?

20 MR. JENKS: On the ground that a sufficient

21 foundation hasn't been laid by Mr. White to ask that

22 question wi thin her knowledge.

23 THE COURT: I think that sufficient -- I don't
24 know whether it is that sufficient, but certainly
25 sufficient to testify. Overruled.

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1 You can pursue it on cross-examination. And it

2 is up to the jury to determine if it was that sufficient a

3 basis. It is enough for me to allow the testimony. But

4 it is up to the government to prove beyond a reasonable

5 doubt that that was so.

6 Go ahead.

7 Q Let me repeat the question, Ms. Benjamin.

8 After the nomination ballots were instituted in

9 late 1993, can you tell us from your own observation what

10 percentage of the names of potential customers were

11 obtained from nomination ballots as opposed to lead cards?

12 A From the few times that I saw them, I don't know, ten

13 perc ent maybe.

14 THE COURT: When you say the few times you saw

15 them, how many times did you see this?

16 THE WITNESS: I wasn't there when the mail was

17 being sorted on a daily basis.

18 THE COURT: Did you ever see them?

19 THE WITNESS: Yes.

20 THE COURT: How often did you go in there and see

21 these cards? Did the cards come in everyday.

22 THE WITNESS: When we did mailings, we did.

23 THE COURT: After you did a mailing, cards came
24 in everyday?
25 THE WITNESS: For the first week or ten days.

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1 THE COURT: During that week or ten days where

2 did the cards come in?

3 THE WITNESS: They were brought to the post

4 office. They were picked up from the post office and in

5 the conference room they were counted behind closed doors.

6 T HE COURT: You didn't pick it up in the post

7 office?

8 THE WITNESS: No.

9 THE COURT: Someone else did?

10 THE WITNESS: Yes.

11 THE COURT: The cards were brought into a

12 conference room?

13 THE WITNESS: Yes.

14 THE COURT: The nomination cards were a different

15 color -- what do you call the regular cards?

16 THE WITNESS: BRCs, the business reply cards.

17 THE COURT: What color were they?

18 THE WITNESS: Depending on the mailing.

19 Sometimes they were blue, sometimes gold.

20 THE COURT: What about the nomination ballots?

21 THE WITNESS: They were very distinctive, they

22 had a band on the top, a very bright like fluorescent

23 color.
24 THE COURT: How often did you go into the room,
25 what room was this, did you say?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3831
Benjamini-direct/White

1 THE WITNESS: The conference room.

2 THE COURT: Where was this located, in Lake

3 Success?

4 THE WITNESS: In Lake Success, yes.

5 THE COURT: After the nomination ballots were

6 used, would you say it was late in 1993?

7 THE WITNESS: Yes.

8 THE COURT: How often would you go into the

9 conference room where the ballots were per day? Did you

10 go in everyday?

11 THE WITNESS: No.

12 THE COURT: Every two days?

13 THE WITNESS: No. Not that regularly.

14 THE COURT: How often?

15 THE WITNESS: Not regularly. Once every couple

16 of weeks maybe.

17 THE COURT: I am going to sustain the objection.

18 I am striking the testimony of this witness as to

19 what she thinks the percentage of nomination ballots

20 vis a vis regular cards are. The jury is instructed to

21 disregard it.

22 Q Now, while you were at Who's Who Worldwide d id it,

23 did Who's Who Worldwide or Sterling send any letters to
24 customers who were actually nominated by any other
25 members?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3832
Benjamini-direct/White

1 MR. JENKS: Objection to her testifying about

2 Sterling, unless it is first established that she worked

3 at the Lexington Avenue office or had knowledge of it.

4 Q I believe the witness testified she handled mailing

5 of Sterling as well?

6 THE COURT: I think it was covered in about a

7 10th of a second. Let's get into it a little more.

8 MR. WHITE: Okay.

9 THE COURT: If in fact she did handle the

10 Sterling mailings. I don't know if she did or not.

11 Q Ms. Benjamin, while you were there, were you

12 responsible for the mailing of letters to potential

13 customers of Sterling?

14 A Yes, I was.

15 Q Was there anyone else who handled the

16 responsibilities of mailing letters to Sterling's

17 customers?

18 A Excuse me, anyone else?

19 Q Let me rephrase the question.

20 Did you perform that function for both Worldwide

21 and Sterling?

22 A Yes.

23 Q Were you involved in the sending of all the letters
24 that were sent out on behalf of Sterling while you were
25 employed there?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3833
Benjamini-direct/White

1 A Yes.

2 Q Taking them one by one, while you were at Who's Who

3 Worldwide, did worldwide send any letters to customers who

4 were actually nominated by other members?

5 A I don't think so. I didn't handle it if they did.

6 Q Was it -- were you responsible for all Worldwide's

7 mailings to potential customers?

8 A Yes.

9 Q So, while you were perfo rming that function did

10 Sterling send any letters to customers who were actually

11 nominated by any other members?

12 A Again, not that I am aware of.

13 Q Now, were potential customers whose names were

14 submitted on nomination ballots contacted by way of a

15 letter that you had caused to be sent?

16 A No.

17 Q So, the recipients of the solicitation letters were

18 obtained from mailing lists; is that right?

19 A That's correct.

20 Q If a person received a solicitation letter and a lead

21 card in the mail, had their name been obtained from a

22 mailing list?

23 A Yes.
24 Q Let me show you first Exhibit 41-D, like in David.
25 If you can take a look at that, and tell us, is

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3834
Benjamini-direct/White

1 the person to whom that letter was sent -- let me rephrase

2 the question.

3 Was the person to whom that card was sent

4 obtained from a mailing list?

5 MR. SCHOER: Objection.

6 THE COURT: What grounds?

7 MR. SCHOER: Basis for the knowledge.

8 THE COURT: Overruled.

9 Q You can answer that?

10 A I would presume they were.

11 MR. JENKS: Objection.

12 MR. SCHOER: Presumes.

13 THE COURT: Yes.

14 When you say you presume, does that mean that it

15 was obtained from a mailing list with reasonable

16 certainty, or that you are guessing that it was obtained

17 from a mailing list, or that you are not sure that it was

18 obtained from a mailing list? Which is it?

19 THE WITNESS: The BRC indicates it was done from

20 a mailing list. But I don't know if this was -- I mean,

21 if you take it a step further, I don't know, and it

22 wouldn't be within my power to know that this went to the

23 person that the letter was addressed to, or they passed it
24 on to a friend. That's what I am saying.
25 THE COURT: I am confused by that, Mr. White.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3835
Benjamini-direct/White

1 You better untangle this one.

2 THE WITNESS: Okay, I would presume it is from a

3 mailing list.

4 MR. SCHOER: Objection to presume.

5 MR. WHITE: I will clarify.

6 THE COURT: I will strike that answer now.

7 The jury is instructed to disregard it. And I

8 will let you start all over again, because I frankly don't

9 understand what was said.

10 MR. WHITE: Okay, I will try to clarify.

11 Q Assuming for the moment that the name of the person

12 that appears on the card is the person to whom it was

13 sent.

14 Does that mean -- what does that mean about where

15 that person's name had been o btained from?

16 MR. JENKS: Objection.

17 THE COURT: What ground?

18 MR. JENKS: On the assumption built into the

19 question, your Honor.

20 THE COURT: Overruled.

21 Did you get that question, Ms. Benjamin?

22 THE WITNESS: Yes, I did.

23 THE COURT: All right.
24 A Because the BRC has a code on it, then I would assume
25 it was from a mailing list.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3836
Benjamini-direct/White

1 MR. SCHOER: Can we see the exhibit?

2 MR. JENKS: May we see the original?

3 MR. TRABULUS: Our copies don't show the code.

4 MR. WHITE: It is 41-D.

5 Q Let me use an example to clarify --

6 THE COURT: Before you do that, you say 41-D, for

7 Dog, has a code on it? What code does it have on it?

8 MR. WHITE: On the side, your Honor.

9 THE COURT: I am not asking you, I am asking the

10 witness.

11 MR. WHITE: I will show it to her.

12 THE WITNESS: In the lower right-hand corner it

13 has global, with the letter K, and then the number 2.

14 THE COURT: Not my copy.

15 MR. JENKS: Not on ours either.

16 THE COURT: Can I see the original, please.

17 (Handed to the Court.)

18 MR. WHITE: Is that printed on there?

19 THE WITNESS: Yes.

20 THE COURT: It says G L O B A L K space 2. What

21 does that mean?

22 THE WITNESS: It was a way of coding them when we

23 did a mailing by the list, and the letter that was sent.
24 THE COURT: So, G L O B A L space K means what,
25 it is a list, a mailing list?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3837
Benjamini-direct/White

1 THE WITNESS: It would be an indicator to us what

2 mailing went out, what particular business reply card, and

3 what is sue of the Registry it would be for, and what

4 letter was sent.

5 THE COURT: I still don't know what

6 G L O B A L K means?

7 THE WITNESS: In that particular case off the top

8 of my head I don't know. It could have referred to the

9 Registry, which is the Global Registry, or it could have

10 been referred to the particular mailing list used for that

11 mailing.

12 MR. WHITE: Let me go back and try to clarify.

13 Q If a person received a letter and a card with a code,

14 like the one on 41-D, that person's name was obtained from

15 where?

16 A The mailing list.

17 Q Let me use an example, and you can tell me if this is

18 correct.

19 If a letter and card are sent to Mr. Smith, and

20 Mr. Smith gives this card to Mr. Jones, and Mr. Jones

21 returns it, is that the situation you were describing

22 before?

23 A Yes.
24 Q How does that impact what you were saying about the
25 code on this card?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3838
Benjamini-direct/White

1 A Well, the response is still a response. It will be

2 calculated into a response. You have no way of knowing

3 once it leaves the post office if it is going to the

4 actual person it is addressed to or if it is being passed

5 on to someone else.

6 Q Now, does the existence of the card with a code on it

7 and somebody's name filled in, indicates that at least in

8 the first instance it was directed to someone off of a

9 mailing list?

10 A Yes.

11 MR. JENKS: Objection.

12 THE COURT: Overruled.

13 Q Let me show you 41-D, as in Dog, the one we have been

14 talking about.

15 (Handed to the witness.)

16 Q Now, that has a code at the bottom; is that right?

17 A That's correct.

18 Q And that would indicate initially it was directed to

19 someone off of a mailing list; is that right?

20 A Yes.

21 Q If you can tell us the name of the person who filled

22 in Exhibit 41-D?

23 A James W. Spencer.
24 Q Now, if you can take a look at 60-F, for Fox.
25 (Handed to the witness.)

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3839
Benjamini-direct/White

1 Q Does that have a code on the bottom right-hand

2 corner?

3 A Yes, it does.

4 Q Does that indicate that that card was initially sent

5 to someone from a mailing list?

6 A Yes.

7 Q Tell us the name of the person who filled that card

8 in?

9 A Reid A. Rotatori.

10 Q R O T A T O R I?

11 A That's correct.

12 Q Let me show you Exhibit 59-D, like in Dog.

13 Does that card have a code on the bottom

14 right-hand corner?

15 A Yes, it does.

16 Q Does that indicate it was initially directed to

17 someone from a mailing list?

18 A Yes.

19 Q Tell us who filled in that card?

20 A Captain Sue Beck.

21 Q Take a look at Exhibit 52-D, like in Dog.

22 Now, is that for Worldwide or Sterling?

23 A Sterling.
24 Q Does it have a code on the bottom right?
25 A Yes, it does.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3840
Benjamini-direct/White

1 Q Does it look like it was initially directed to

2 someone from a mailing list?

3 A Yes.

4 Q Who filled that in?

5 A Jack T. Heinbaugh.

6 Q H E I N B A U G H?

7 A Yes.

8 Q Look at Exhibit 15-C.

9 Does it have a code in the lower right-hand

10 corner?

11 A Yes.

12 Q And does it indicate that the cards was initially

13 dire cted to someone off of a mailing list?

14 A Yes.

15 Q What is the name of the person who filled in that

16 card?

17 A Lester M. Wheeler.

18 Q Take a look at Exhibit 9-D, like in Dog. Does it

19 have a code in the bottom left-hand corner?

20 A Yes.

21 Q Does that indicate that that card was initially

22 directed to someone off of a mailing list?

23 A Yes.
24 Q And what is the name of the person who filled that
25 in?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3841
Benjamini-direct/White

1 A Rita M. Rieger.

2 Q R I E G E R?

3 A Yes.

4 Q Now, Ms. Benjamin, if you can take a look at

5 Exhibit 210, which is in evidence, because it is a

6 solicitation letter.

7 Q Looking at 210, can you tell us the date of that

8 letter?

9 A September 7th, 1993.

10 Q And do you see the hand writing at the top?

11 A Yes.

12 Q Do you recognize whose handwriting that is?

13 A Yes.

14 Q Whose is it?

15 A Liz.

16 Q Sautter?

17 A Sautter, yes.

18 Q Now, let me read the first two paragraphs of the

19 letter.

20 Dear Mr. Morris:

21 You were recently nominated for inclusion in the

22 Who's Who Registry. On September 2nd your nomination was

23 accepted by the office of public affairs, and, therefore,
24 we wish to extend our congratulations on this coveted
25 event, since many individuals are not accepted.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3842
Benjamini-direct/White

1 Now, the person to whom this letter was directed,

2 in this case, Mr. Morris, from where was that letter --

3 that name taken?

4 A I would presume the mailing list.

5 MR. JENKS: Objection, ask it be stricken .

6 THE COURT: Motion granted, strike out the

7 answer.

8 Next time rise when you make an objection.

9 MR. JENKS: Yes, your Honor.

10 Q Was this letter sent to anyone else, anyone not

11 obtained from a mailing list to your knowledge?

12 A No.

13 Q Now, the first paragraph of the letter indicates that

14 Mr. Morris was nominated; is that right?

15 A Yes.

16 Q And the second paragraph says that his nomination was

17 accepted by the office of public affairs on September

18 2nd. Do you see that?

19 A Yes.

20 Q Now, had anything actually taken place on September

21 2nd in connection with this person's candidacy?

22 MR. TRABULUS: Objection.

23 MR. JENKS: Objection.
24 THE COURT: What ground?
25 MR. TRABULUS: Foundation.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3843
Benjamini-direct/White

1 MR. JENKS: I object to the form as well, had

2 anything taken place.

3 THE COURT: Overruled as far as the form is

4 concerned.

5 I think you better lay a foundation for this.

6 Q Using this as an example, a letter to Mr. Morris, you

7 said Mr. Morris' name was obtained from a mailing list; is

8 that correct?

9 A Yes.

10 Q Explain for us in the regular course of your rental

11 of mailing lists whether there would ever -- whether there

12 would be any individual consideration of the names on the

13 mailing lists prior to the letter being sent out?

14 MR. JENKS: Objection.

15 THE COURT: Sustained.

16 Was there a procedure invariably followed in

17 Who's Who Worldwide in processing these names?

18 THE WITNESS: In the actual processing of the

19 names?

20 THE COURT: Assume you got a name off a mailing

21 list.

22 THE WITNESS: Uh-huh.

23 THE COURT: What happened then? Was there a
24 regular procedure that occurred in each and every case?
25 THE WITNESS: There was a regular procedure

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3844
Benjamini-direct/White

1 followed. That was in the initial stages of ordering the

2 list.

3 THE COURT: After the list is ordered, you have

4 the list, then what happens? Was there a regular

5 procedure that occurred at Who's Who Worldwide in

6 September 1993 after the list was obtained?

7 THE WITNESS: No. Other than using the list to

8 print the letters and send them out.

9 THE COURT: That's what I mean by a procedure.

10 THE WITNESS: Okay.

11 THE COURT: Was there four ways to do it, three

12 ways, twenty ways, or one way?

13 THE WITNESS: One way.

14 THE COURT: What was the way?

15 THE WITNE SS: The list went from the list broker

16 to the mailing house and then was processed -- the letter

17 was processed, the BRC, and this mailed out.

18 THE COURT: The letter was processed and what?

19 THE WITNESS: The BRC was put in the envelope and

20 mailed out.

21 THE COURT: With the letter?

22 THE WITNESS: Yes.

23 THE COURT: So, the letter was sent out, the
24 solicitation letter and what is BRC?
25 THE WITNESS: The business reply card.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3845
Benjamini-direct/White

1 THE COURT: That's the card that the person who

2 desires to fill it out does so?

3 THE WITNESS: That's correct.

4 THE COURT: And that was put into an envelope?

5 THE WITNESS: That's correct.

6 THE COURT: Anything else in the envelope?

7 THE WITNESS: Not usually.

8 THE COURT: And then the envelope is mailed?

9 THE WITNESS: That's correct.

10 THE COURT: Is that what Government's Exhibit 210

11 is, a solicitation letter?

12 THE WITNESS: Yes.

13 THE COURT: And that was mailed after being

14 received at the mailing house from the broker with the

15 lists; is that right?

16 THE WITNESS: That's correct.

17 THE COURT: Was there anything else that took

18 place between the time that the lists were ordered and the

19 time that the actual mailing took place? Anything else

20 happen?

21 THE WITNESS: No.

22 THE COURT: The names on the lists are on a tape

23 that goes from the broker to the mailing house; is that
24 correct?
25 A Yes.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3846
Benjamini-direct/White

1 Q Do those names ever come to Worldwide individually

2 before the letters are actually sent ou t?

3 A No.

4 Q In using the example of Exhibit 210, which is

5 addressed to Mr. Morris --

6 A Uh-huh.

7 Q -- was Mr. Morris' name individually ever actually

8 given to Who's Who Worldwide prior to when the letter is

9 sent out?

10 A No.

11 Q So, it is just included on a list, on a tape that

12 goes to the mailing house?

13 MR. JENKS: Objection to the leading at this

14 point.

15 THE COURT: No. The witness has testified

16 several times to that. Mr. White is just reinforcing it.

17 So we will give him one reinforcement.

18 From now on don't reinforce any more.

19 MR. WHITE: Your Honor, I wasn't trying to

20 reinforce. I was trying to clarify. I am sorry.

21 THE COURT: Are you through with this letter

22 now?

23 MR. WHITE: Pretty much, if your Honor wants to
24 take a break now, that's fine.
25 THE COURT: Ok ay.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3847
Benjamini-direct/White

1 Members of the jury, we will take a ten-minute

2 recess.

3 Please do not discuss the case. And keep an open

4 mind.

5 (Whereupon, at this time the jury leaves the

6 courtroom.)

7

8 (Whereupon, a recess is taken.)

9

10 THE CLERK: Jury entering.

11 (Whereupon, the jury at this time entered the

12 courtroom.)

13 THE COURT: Please be seated, members of the

14 jury.

15 You may proceed, Mr. White.

16 MR. WHITE: Thank you, your Honor.

17 BY MR. WHITE:

18 Q Now, Ms. Benjamin, if you can take a look at

19 Exhibit 211, which is in front of you. It is a letter

20 dated September 7th, 1993 from Worldwide; is that correct?

21 A Yes.

22 Q Let me read the first two paragraphs of that aloud.

23 Dear Ms. West:
24 We are pleased to inform you that on September
25 2nd you were nominated for inclusion in the Who's Who

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3848
Benjamini-direct/White

1 Registry.

2 Who's Who Worldwide is dedicated to the

3 recognition of excellence and career achievements.

4 Although many people are nominated for inclusion, it is a

5 very select group that is granted a listing by our board

6 of review.

7 Now, in your time at Who's Who Worldwide did you

8 ever meet anyone at the company who was a member of the

9 board of review?

10 A An individual?

11 Q Yes.

12 A No.

13 Q Did you ever know anyone at the company whose

14 position was a member of the board of review?

15 A Can you clarify that a little bit.

16 Q Were you aware of a existence of a board of review,

17 if there w as one, at the company?

18 A No.

19 Q Now, who is this letter signed by?

20 A Laura Garrett.

21 Q Did Laura Garrett work at Who's Who Worldwide?

22 A No.

23 Q Was there a reason why this letter was signed in the
24 name of Laura Garrett?
25 A Because when people received the letter called the

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3849
Benjamini-direct/White

1 company, they would ask for Laura Garrett, and that would

2 be a way of identifying them.

3 Q Was Laura Garrett a real person?

4 A Not at Who's Who.

5 Q Putting aside the letter for a minute, if you can

6 focus on the time period that you first began working at

7 Who's Who Worldwide did you have a conversation with

8 Mr. Gordon concerning the use of the word "nominee" in

9 these letters?

10 A Yes.

11 Q Tell us about that conversation.

12 A I thought it was unusual to look at the word

13 "nominated" Mr. Gordon replied, if you look at the word

14 in the dictionary, it means selected or chosen.

15 Q When you say you felt it was unusual, what, if

16 anything, did you explain to Mr. Gordon why you were

17 asking about it?

18 A I felt a nomination was something more personal than

19 the way this was being done.

20 Q And what is the way --

21 MR. LEE: Objection, Judge. I move to strike her

22 opinion on this particular aspect.

23 THE COURT: Can I hear the question and answer,
24 please.
25 (Whereupon, the court reporter reads the

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3850
Benjamini-direct/White

1 requested material.)

2 THE COURT: Is that what you said to Mr. Gordon

3 or is that what you thought?

4 THE WITNESS: No. That's what I had sa id, you

5 know, about changing the words "nominated."

6 THE COURT: Your objection is overruled.

7 Q What did you say about changing the words

8 "nominated?" As best as you recall what did you say in

9 that conversation?

10 A That I felt that nominated was a kind of a misleading

11 word. It should have been like selected or chosen or --

12 Q And what, if anything, did Mr. Gordon say in

13 response?

14 A He said "nominated" works. It is what pulls the

15 letters.

16 Q When he said -- when you say pulls the letters, did

17 you understand what that term meant?

18 A It gets a greater response than other words.

19 Q Now, is "pulls" a term used in direct mail?

20 A Yes.

21 Q And what does it mean in the direct mailing context?

22 A It means the rate of return on a particular mailing

23 or solicitation.
24 Q Now, after this conversation, di d you ever any other
25 conversation with Mr. Gordon regarding the use of the word

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3851
Benjamini-direct/White

1 "nominate," in these letters?

2 A I know there were a couple of times that it had come

3 up.

4 Q Okay.

5 Do you recall in what context it came up?

6 Let me withdraw the question and ask it another

7 way.

8 Over the course of time you worked at Who's Who

9 Worldwide, how many conversations, approximately, did you

10 have with Mr. Gordon about the inclusion of the term

11 "nominate" in the letters?

12 A Two or three.

13 Q Now, after the first one, are you able to recollect

14 approximately when the next one was?

15 A No. I guess later in the year.

16 MR. TRABULUS: Your Honor, may we approach?

17 There may be a need to address something here.

1 8 THE COURT: All right. Come up.

19

20 (Whereupon, at this time the following took place

21 at the sidebar.)

22 THE COURT: Yes, Mr. Trabulus.

23 MR. TRABULUS: Your Honor, based on the 3500
24 material, it may be that Mr. White is seeking to elicit
25 that there were conversations between her and Mr. Gordon

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3852
Benjamini-direct/White

1 concerning the effect of Magistrate Judge Jordan's

2 injunction, relating to the use of the word "nominated"

3 and precluded the use of that in the solicitations. And I

4 think we are opening the door on something we dealt with

5 before and which your Honor said should not come in, that

6 there was a judicial determination in the use of the word

7 "nomination." I don't know if this is what Mr. White is

8 aiming at. It seems based on the 3500 material he is

9 getting perilously close to it, and if it is so I would

10 like to preclude it.

11 MR. WHITE: I instructed Ms. Benjamin in

12 accordance with your Honor's ruling in the trial, not to

13 mention that there was a judicial decision, that they were

14 enjoined from using the word "nominated." What I

15 intended to elicit from her was the last conversation in

16 this series, which was sometime in 1994, that she sent a

17 letter, a copy of a letter, a solicitation letter before

18 it was being sent to customers. She sent it to --

19 THE COURT: Counsel, can we have a little quiet

20 here, please.

21 MR. WHITE: Let me start again.

22 What I intended to elicit was sometime in 1994,

23 she sent a copy to a solicitation letter that was in final
24 form ready to be sent to customers, to the company's
25 attorneys. I told her she is not to get into what the

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3853
Benjamini-direct/White

1 company's attorneys told her at all. Just she sent it to

2 the attorneys.

3 Subsequently Mr. Gordon came to her and was irate

4 and was yelling at her that she should not provide a copy

5 of the letter to the attorneys. I wanted to circumscribe

6 it that way.

7 THE COURT: I will allow it. It is evidence of

8 intent. It is all very relevant, and exactly the evidence

9 upon which a prosecution like this is being faced with.

10 Overruled.

11 I don't know if you are objecting to it.

12 MR. TRABULUS: I was thinking about it. I was

13 going to object to it.

14 THE COURT: I will allow it.

15 MR. TRABULUS: I think under the circumstances, I

16 don't know the details of the testimony to be elicited.

17 THE COURT: You just heard it.

18 MR. TRABULUS: Th at he didn't want to letter

19 going to the attorney. It is going to suggest -- I mean,

20 there are any one of a number of reasons why.

21 THE COURT: You bring it out on

22 cross-examination. One of the reasons is that it is

23 misleading, what she just told him, she says.
24 Not only that, but you are very fortunate that I
25 am making a ruling that a judge said not to use the word

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3854
Benjamini-direct/White

1 "nominated," because of the possible confusion that may

2 occur, very fortunate.

3 MR. TRABULUS: I agree with that, your Honor.

4 MR. WHITE: I agree, too.

5

6 (Whereupon, at this time the following takes

7 place in open court.)

8 THE COURT: You may proceed.

9 Q Now, Ms. Benjamin, let me direct your attention to

10 1994.

11 At that time did you provide a letter, a copy of

12 a list solicitation letter to an attorney for Who's Who

13 Worldwide?

14 A Yes, I did.

15 Q Did that letter contain the word "nominate?"

16 A Yes.

17 Q And did you subsequently have a conversation with

18 Mr. Gordon regarding your sending that letter to the

19 company attorney?

20 A Yes.

21 Q Tell us what happened?

22 A He was very angry. And the attorney instructed me

23 that we could not use --
24 Q Let me just have you focus for a moment on the
25 specific conversation with Mr. Gordon and tell us as best

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1 as you can recall what he said and what you said?

2 A When I sent the letter over to Phil Pierce, Phil

3 Pierce --

4 THE COURT: Pierce, how do you spell that?

5 P I E R C E?

6 THE WITNESS : Yes.

7 THE COURT: He is the lawyer?

8 THE WITNESS: Yes.

9 THE COURT: Don't tell us what he said.

10 THE WITNESS: Okay.

11 Q Just tell us what Mr. Gordon said to you after you

12 sent it to Mr. Pierce.

13 A Oh, that -- that it was going to go out that way,

14 with the word "nominate" because that's what pulls

15 responses.

16 Q Did Mr. Gordon say anything to you about you sending

17 the letter to Mr. Pierce?

18 A Yes.

19 Q What did he say?

20 A He was very angry.

21 Q Do you remember specifically, or in substance what he

22 said?

23 A Basically that the attorney is not going to run his
24 business.
25 Q Did he give you any instructions regarding whether or

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1 not to send letters to the attorneys in the future?

2 A He didn't want me to.

3 MR. NEVILLE: I am sorry, I didn't hear the

4 response.

5 THE COURT: He didn't want me to.

6 MR. NEVILLE: Thank you.

7 Q Did he provide any explanation as to why?

8 A Just that it was his business, and he was going to

9 run it the way that worked best.

10 Q Now, did you have any responsibilities for planning

11 seminars or conferences for Who's Who Worldwide and

12 Sterling Who's Who members?

13 A Yes.

14 Q And was there a conference planned while you were

15 there for Vietnam and Hong Kong?

16 A Yes.

17 Q And when was it scheduled to take place?

18 A It was around Christmas time of '93, I think.

19 Q Now, did you take any steps to inform members of the

20 scheduling of this conference?

21 A The people that provided the seminar services gave us

22 a brochure.

23 Q Who were the people who provi ded the seminar
24 services?
25 A A gentleman named Paul Elmstrom, E L M S T R O M.

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1 THE COURT: Paul --

2 THE WITNESS: Elmstrom.

3 Q Tell us what sort of business Mr. Elmstrom was in?

4 A He does travel seminars for professional groups.

5 Q Now, did you -- prior to this did you know

6 Mr. Elmstrom?

7 A Yes.

8 Q And what services was Mr. Elmstrom providing in

9 connection with the Who's Who seminar?

10 A Well, he was enabling the members if they chose to

11 attention, they would go to Vietnam and Hong Kong, and

12 would be seen or meeting with particular dignitaries or

13 seeing things in those areas that would pertain to their

14 particular fields of interest.

15 Q You said they provided you with a brochure?

16 A Yes.

17 Q What was done with those brochures by Worldwide?

18 A They were put in the new member packets.

19 Q When you say new member packets, what do you mean?

20 A When people became members they received a copy of

21 their invoice, plus membership materials.

22 Q Was anything sent to existing members regarding this

23 Vietnam seminar?
24 A No.
25 Q Now, did you have a discussion with Mr. Gordon

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1 regarding the notification of members of this seminar?

2 A Yes.

3 Q Tell us as best as you can recall what you said and

4 what he said?

5 A I asked him about sending the brochures out because

6 Mr. Elmstrom had given us about 50,000 pieces of this

7 brochure. He said it would be too costly to send it out

8 to the existing members, to just do a new mailing like

9 that.

10 Q Now, were you involved in planning this seminar?

11 A Is it Vietnam?

12 Q Yes.

13 A Yes.

14 Q Were any other groups to be travelling to this

15 seminar?

16 A What happened was the Who's Who group was going to be

17 piggybacking with the American Bar Association. They were

18 going on that particular trip.

19 Q Did Mr. Elmstrom have anything to do with the

20 American Bar Association trip?

21 A Yes, he coordinated the trip.

22 Q When you say Who's Who was going to piggyback, what

23 do you mean?
24 A When tour operators buy accommodations in bulk, and I
25 guess there wasn't a huge sign up from the bar

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1 association, which enabled our members to reduced rates

2 based on the block of rooms and air fare he had purchased .

3 Q Did you have any discussion with Mr. Elmstrom

4 regarding arranging events for Who's Who members in

5 Vietnam?

6 A Yes, I did.

7 Q Tell us what discussions you had with him?

8 A It was going to be based on whatever people signed up

9 with the trip, he would be able to sign them up to see

10 particular manufacturing facilities, or if they had

11 interest in medical facilities, he would arrange special

12 tours or tour guides to accommodate them.

13 Q Had Mr. Elmstrom arranged such events for the

14 attorneys group that was going?

15 A Yes.

16 Q And were those to be separate or the same for the

17 ones for the Who's Who members?

18 A They were separate.

19 Q If Who's Who members wished to attend this trip, who

20 would they have paid?

21 A They would have paid Paul Elmstrom's company.

22 Q Was Who's Who Worldwide to obtain any f inancial

23 benefit as a result of the seminar?
24 A I don't remember the exact details of it, but I
25 believe accommodations would be picked up for people from

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1 Who's Who Worldwide to go on the trip. In other words,

2 there would be like one free trip, depending on how many

3 members signed up.

4 Q Now, was it decided who, if anyone, from Who's Who

5 Worldwide would go on this seminar if members would sign

6 up?

7 A There was no final decision made as to that.

8 Q Did you have any discussions about who would go if

9 members would sign up?

10 A Yes.

11 Q And who was it that was -- let me rephrase that --

12 tell us the substance of the discussions as to who was to

13 go?

14 A It would have been Mr. Gordon or myself, or Tara, or,

15 you know, somebody as a representative of the company.

16 Q Now, did any Who's Who members sign up to attend this

17 Vietnam seminar in December of '93?

18 A To my knowledge, no.

19 Q Now, you say to your knowledge. Were you in touch

20 with Mr. Elmstrom regarding the planning of this trip?

21 A Yes.

22 Q Now, do you know whether or not the attorneys' group

23 went on this trip in December of '93 to Vietnam?
24 A Yes, they went.
25 Q Did any Who's Who Worldwide seminar take place in

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1 Vietnam or Hong Kong in December of 1993?

2 A No.

3 Q Okay.

4 Were you involved in planning a conference for

5 Who's Who members in Hilton Head, South Carolina?

6 A Yes.

7 Q Okay.

8 When was that conference scheduled to take place?

9 A I belie ve it was November of '94.

10 Q Okay.

11 Can you describe for us what your role in

12 planning was -- in planning the seminar was.

13 A Well, basically we were going to have a golf

14 tournament, as it seemed so many of our members liked to

15 play golf. So we were going to have a mixture -- make

16 arrangements, Maggie Swendseid made the arrangements in

17 the Carolinas.

18 Q Now, were members advised of the Hilton Head seminar?

19 A Yes.

20 Q And how were they advised of it?

21 A Through the Tribute Magazine.

22 Q When were these notifications placed in the Tribute

23 Magazine?
24 A In the spring issue and the fall issue. The spring,
25 summer and fall. Tribute came out quarterly.

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1 Q Repeat which issues the notifications were in?

2 A The spring and summer issue, and I think the fall and

3 winter issue.

4 Q Now, can you tell us approximately how many members

5 signed up to attend this Hilton Head seminar?

6 A It was only -- I don't know the exact number. It was

7 very minute, it was like four or seven people tops.

8 Q Now, did the Who's Who Worldwide seminar at Hilton

9 Head ever take place?

10 A No.

11 Q What happened, did you take any action with respect

12 to the conference?

13 A It had to be cancelled because the tour operator for

14 that trip required I think a minimum of 25 people to

15 attend in order to have the golf tournament.

16 Q Now, do you know approximately when it was that

17 Worldwide cancelled the seminar?

18 A It had to be late August, early September, because

19 there was a deadline. So it was sometime in that time

20 frame.

21 Q Late August, early September --

22 A Yes.

23 Q Of 1994?
24 A Yes, 1994.
25 Q It was scheduled to take place in what month in '94?

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1 A November.

2 Q Now, do you know if the Who's Who Worldwide sales

3 staff was ever notified that the Hilton Head conference

4 was cancelled?

5 A I would presume that they were, yes.

6 MR. NELSON: Objection.

7 THE COURT: Sustained. Strike out the answer.

8 The jury is instructed to disregard it.

9 Q Do you know from personal knowledge whether any of

10 them were ever notified of the cancellation of the Hilton

11 Head conference?

12 A Yes, they were.

13 Q Now, on what do you base that?

14 MR. GEDULDIG: Objection.

15 MR. WHITE: I will rephrase that, I will rephrase

16 that.

17 Q Did you ever attend a sales meeting at which

18 salespeople were told that the conference was cancelled?

19 A Yes.

20 Q Do you recall which salespeople were present?

21 A Not offhand. There was quite a few of them. I

22 believe it was mostly everybody in the office, that one.

23 Q Now, tell us what happened at the sales meeting?
24 A It was announced that the tournament --
25 MR. GEDULDIG: Objection. We don't have the

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1 names of the people attending this meeting. And to just

2 testify about a meeting in which not a single name of one

3 of the salespeople in this case is given I think is

4 misleading and inappropriate.

5 THE COURT: Did you say that you attended this

6 sales meeting?

7 THE WITNESS: Yes.

8 THE COURT: Who was present at the sales

9 meeting? Would y ou say almost everybody -- what did you

10 say?

11 THE WITNESS: Well, I don't recall exactly which

12 people were in the room at the time.

13 THE COURT: Did you know anybody that was in the

14 room?

15 THE WITNESS: I know Tara was there and Maria was

16 there, because at that point Bruce said to send the checks

17 back to refund the money to the members who had signed up.

18 THE COURT: Who is Tara?

19 THE WITNESS: Tara Green.

20 THE COURT: Who is Maria?

21 THE WITNESS: Maria Gasbar.

22 THE COURT: Who addressed the meeting?

23 THE WITNESS: Mr. Gordon.
24 THE COURT: Your objection is overruled.
25 Do you want to pursue it?

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1 MR. WHITE: Yes. I want to clarify something

2 first, though.

3 Q Even without identifying individuals, can you tell us

4 approximately how many salespeople were present at this

5 meeting?

6 A I guess it was about ten or 15, I would presume.

7 MR. DUNN: Objection to presume, your Honor.

8 THE COURT: You keep saying I presume.

9 Now, you are a layperson, and I don't know what

10 you mean by presume. But there is a connotation to that

11 words that you are just guessing.

12 THE WITNESS: I really don't know exactly how

13 many people were in there.

14 THE COURT: Well, it is one thing to say I guess

15 there is ten or fifteen people, just using wild

16 imagination, and another thing to say I was there, I saw a

17 number of people, it is my opinion that there were

18 approximately 10 or 15 people. Those are two different

19 versions. Do you understand the difference?

20 THE WITNESS: Uh-huh.

21 THE COURT: Which version are you telling us?

22 THE WIT NESS: I guess there were about ten or

23 fifteen people, maybe more.
24 THE COURT: When you say you guess, what do you
25 mean? Were there ten or fifteen people?

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1 THE WITNESS: I don't understand.

2 THE COURT: All right.

3 The word "guess" is very objectionable in a court

4 of law. That means it is a wild idea with no basis to

5 it.

6 THE WITNESS: Uh-huh.

7 THE COURT: For example, I guess the New York

8 Jets are going to win the Super Bowl next year. That's a

9 wild idea.

10 What is it, were you there?

11 THE WITNESS: I was there.

12 THE COURT: There were people there?

13 THE WITNESS: Yes.

14 THE COURT: How many people were there?

15 THE WITNESS: The majority of the salespeople.

16 THE COURT: You say I presume. That is -- wh en

17 you start with presume, I guess, or I believe, and all of

18 that, those are words which are not entitled to weight in

19 a court of law usually. Do you understand?

20 THE WITNESS: Uh-huh.

21 THE COURT: I mean, lay people use those words.

22 But in court they cause problems. Okay?

23 THE WITNESS: Yes.
24 Q Now, you were personally present at this meeting,
25 right?

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1 A Uh-huh, yes.

2 Q Is ten to fifteen salespeople your best approximation

3 based on your observation of that meeting?

4 MR. NELSON: Objection.

5 THE COURT: Overruled.

6 Nobody was standing up when I look into the

7 crowd, I guess there was no objection.

8 MR. NELSON: I apologize, your Honor.

9 THE COURT: All right, Mr. Nelson.

10 Q Repeating the question, based on your observation of

11 the meeting, is ten to fifteen salespeople being present

12 your best approximation?

13 A Yes.

14 Q Now, tell us what was said at that meeting regarding

15 the Hilton Head conference?

16 A That the conference didn't get enough members to sign

17 up for it. We had a minimum required for the golf

18 tournament to take place, and the event was cancelled,

19 that it was not going to take place.

20 Q Now, who said that at the meeting?

21 A I did.

22 Q Now, do you remember approximately when this meeting

23 was in relation to when the conference was cancelled?
24 A It was around the same time.
25 Q So, that is late August, early September of 1994?

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1 A It was in September. It was after Labor Day.

2 Q Now, after this s ales meeting did you ever

3 subsequently hear any salesperson telling customers that

4 the Hilton Head conference had actually taken place?

5 A Yes.

6 Q What salesperson did you hear telling a customer that

7 the Hilton Head conference had actually taken place?

8 A Steve Walden.

9 THE COURT: Who is that?

10 THE WITNESS: Steve Walden.

11 Q Now, approximately when was this that you heard

12 Mr. Walden?

13 A It was late fall, so it was -- I would say like

14 October, the beginning of November.

15 Q Now, can you tell us where you were -- where you were

16 when you heard him say this?

17 A I was walking past his desk.

18 Q And what did you hear him say on the telephone?

19 A That there was this great conference in Hilton Head,

20 it was fantastic. In other words, implying that it had

21 taken place.

22 Q Now, did you hear Mr. Walden say anything else on the

23 phone that -- did you hear him say anything else on the
24 phone?
25 A Yes.

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1 Q What else did you hear him say?

2 A That Boris Yeltsin was a member.

3 THE COURT: Pardon?

4 THE WITNESS: Boris Yeltsin.

5 Q By Boris Yeltsin, you mean the Russian President?

6 A Yes.

7 Q And after you heard Mr. Walden say this on the phone,

8 what, if anything, did you do?

9 A I said to him, you know, that something is wrong

10 because Boris Yeltsin is not a member, although we did in

11 fact have a lot of Russian members, Boris Yeltsin wasn't

12 one of them, and the conference, the golf tournament had

13 not taken place.

14 Q What if anything did Mr. Walden say to you in

15 response?

16 A He just looked at me blankly. And he said, you know,

17 whatever.

18 Q Now, did you know a person at Who's Who Worldwide

19 named Wendi Springer?

20 A Yes.

21 Q And tell us briefly what Wendi Springer did?

22 A Well, she was in the administrative department. And

23 she did a lot of the editing of the new members, the sales
24 forms and the applications.
25 Q Now, did you ever hear a conversation between

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1 Mr. Gordon and Wendi Springer regarding a new customer's

2 qualification?

3 A Yes.

4 Q How often in the time you worked there would you say

5 you heard such conversations?

6 A It was pretty regular. It was, you know, on a

7 regular basis.

8 Q And can you describe for us the substance of the

9 conversations you heard?

10 A Oh, Wendi would come in if she had a question on an

11 applicant, whether they were qualified or not.

12 Q Now, did you ever hear Mr. Gordon give instructions

13 to Wendi Springer regarding an applicant whose title was

14 assistant vice president?

15 A Yes.

16 Q What instructions did you hear Mr. Gordon give to

17 Wendi Springer on that subject?

18 A To remove the assistant part.

19 Q So, the title would read how?

20 A V P, V P of operations, whatever.

21 Q Did you ever hear Mr. Gordon give Wendi Springer

22 instructions regarding a customer with the title,

23 associate vice president?
24 A Associate and assistant were pretty much the same.
25 Q And what was to be done with "associate"?

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1 A Eliminate it in most cases.

2 Q From your -- from your hearing of these

3 con versations, were Mr. Gordon's instructions to

4 Ms. Springer on this subject consistent?

5 A The times that I heard them, yes.

6 Q From your observation of these discussions were

7 Mr. Gordon's instructions regarding qualification of

8 members consistent to Wendi Springer?

9 MR. JENKS: Objection.

10 THE COURT: Sustained.

11 Q Now, when you started at Who's Who Worldwide, can you

12 tell us what benefits a customer received as part of his

13 or her membership?

14 A They received the wall plaque and camera-ready art,

15 and the Registry when it was prepared at the end of the

16 year.

17 Q What do you mean by camera-ready art?

18 A It was a slick where they could put the Who's Who

19 Worldwide seal on their stationery, resumes, whatever.

20 Q Now, after you began working there, did you have any

21 conversations with Mr. Gordon regarding the benefits to be

22 given to members?

23 A Uh-huh, yes.
24 Q That's yes?
25 A Yes.

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1 Q And tell us when -- let me back up.

2 Did you have one or more than one conversation on

3 this subject?

4 A No. It was a few.

5 Q Tell us when, as best as you can recall, the first

6 one took place?

7 A Probably around the -- right after -- late winter of

8 1990 -- 1993, the beginning of the winter, January or

9 February of 1993.

10 Q How long had you been in the company at that point?

11 A Four or five months.

12 Q Tell us what you said to Mr. Gordon in that

13 conversation?

14 A Well, I just felt that the --

15 Q Don't tell us what you felt. Tell us what you said

16 to Mr. Gordon in the conversation?

17 A That members should get -- w e should handle it more

18 like an association than a membership group, and members

19 should get more than just a plaque and a camera-ready art

20 slick, to put the little logo on.

21 Q You say slick, S L I C K?

22 A Right.

23 Q When you said that, what, if any, response did
24 Mr. Gordon have?
25 A He was open to it.

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1 Q Can you tell us as best as you recall what he said?

2 A It would be fine to add programs if it didn't take

3 away from the bottom line.

4 Q Did Mr. Gordon explain what he meant by take away

5 from the bottom line?

6 A He didn't want it to cause, you know, an exorbitant

7 amount of money to put the programs into place.

8 Q Now, did you make any efforts to arrange for

9 additional benefits to members?

10 A Yes.

11 Q Tell us what additional benefits there were then?

12 A The reduced long distance through Sprint, reduced

13 rates on Airborne Express. There was a discounted auto

14 insurance program. Med Jet, which is a medical ambulance

15 service for business travelers. There were affinity

16 programs, basically.

17 Q Now, were you involved at all in the obtaining of a

18 Who's Who Master Card?

19 A The obtaining of it, yes.

20 MR. LEE: Your Honor, I have an application.

21 THE COURT: You have an application?

22 MR. LEE: Yes, your Honor, if I can approach.

23 THE COURT: Very well.
24
25 (Whereupon, at this time the following took place

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1 at the sidebar.)

2 MR. LEE: Your Honor, I heard a lot of testimony

3 elicited as to statements by Mr. Gordon. I would ask the

4 jury be instructed at this juncture that it is limited

5 only with respect to Mr. Gordon. These are statements by

6 somebody who I don't think is established as a

7 co-conspirator of my client. There is a lot of testimony

8 about his statements that the jury may be unclear that at

9 this juncture that it is admissible only as to him.

10 MR. WHITE: I think that is correct, your Honor,

11 if that's the case, every single time someone recounts a

12 conversation we will have to give a limiting instruction.

13 THE COURT: I think I told the jury ten or

14 fifteen times already, maybe more, about the limiting

15 instructions.

16 All you have to do is can I have a limiting

17 instruction. We don't have the conference here and starts

18 wasting time. Just give me a hint.

19 MR. LEE: I know the code now, Judge.

20 THE COURT: Okay.

21

22 (Whereupon, at this time the following takes

23 place in open court.)
24 THE COURT: Members of the jury, I instruct you
25 that these conversations that the witness is testifying

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1 about, are being offered only against the defendant Bruce

2 Gordon and the corporations, Worldwide and Sterling,

3 depending upon the circumstances, and no other defendant.

4 You may proceed.

5 Q Now, Ms. Benjamin, the benefits you were just

6 listing, can you tell us when they were first offered to

7 members, approximately?

8 A It was I would say mid-'93, somewhere around there.

9 Q The first of them began in mid-'93?

10 A I would say, yes.

11 Q Have you ever heard of a company called

12 Transnational?

13 A Yes.

14 MR. WHITE: That's all one word.

15 Q Tell us who Transnational is?

16 A They are an Affinity Marketing company.

17 Q And tell us what an Affinity Marketing company does?

18 A They put together discount programs for groups or

19 organizations.

20 Q Did Worldwide or Sterling do business with

21 Transnational?

22 A Yes.

23 Q Can you tell us how that worked?
24 A The programs that we offered to the members were
25 through Transnational.

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1 Q Let's take for example, the auto insurance that you

2 mentioned?

3 A Uh-huh.

4 Q How would that service or benefit be provided to the

5 members?

6 A How -- the members would have an 800 number to call

7 that distinguished them as Who's Who Worldwide members,

8 and they could sign off usually by telephone. I don't

9 know if any paperwork is provided, but usually it is by

10 telephone.

11 Q And when they would call this 800 number, who would

12 they be connected to?

13 A Someone at the insurance provider, or whatever

14 service it was.

15 Q Or the Sprint?

16 A Yes.

17 Q Or Airborne Express?

18 A Yes, exactly.

19 Q Now, have you ever heard of a company called Who's

20 Who Executive Club?

21 A Yes.

22 Q What was the Who's Who Executive Club?

23 MR. JENKS: Objection, your Honor.
24 THE COURT: What grounds?
25 MR. JENKS: What relevancy it has to Sterling

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1 Who's Who or Who's Who Worldwide?

2 THE COURT: I don't know what relevance there is,

3 we will wait and see.

4 Q Tell us who the Who's Who Executive Club is?

5 A That's the umbrella for the benefit programs.

6 Q What do you mean by the umbrella for the benefit

7 programs?

8 A I don't know. It was just termed as Who's Who

9 Executive Club. By being a member you could partake of

10 these different benefits.

11 Q Was it Who's Who Executive Club, at least in name,

12 that offered these benefits to members?

13 A Yes.

14 Q And were the benefits available to the members of

15 Who's Who Worldwide?

16 A Yes.

17 Q Were they available to the members of Sterling Who's

18 Who?

19 A Yes.

20 Q So, if you were a member of either organization you

21 could get these benefits; is that right?

22 A Yes.

23 Q Now, did Who's Who Worldwide -- excuse me, did Who's
24 Who Executive Club enter into any contracts with
25 Transnational?

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1 A Yes.

2 Q If you can look in your book at Exhibit 289, for

3 Identification.

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

5 proceedings.)

6 Q If you can take that out of the plastic and look at

7 it.

8 Now, can you tell us what that is?

9 A It is an agreement between Who's Who and

10 Transnational for the insurance provider, to provide the

11 benefit.

12 Q Who is it signed by on behalf of Who's Who?

13 A Me.

14 Q And what is the date of the agreement on the first

15 page?

16 A 27th of April, 1994.

17 Q Okay.

18 Now, if you look at the exhibit before that, 288,

19 and you can take that out of the plastic and look at that.

20 Now, what is Exhibit 288?

21 A An agreement between Who's Who and Transnational

22 again, for Airborne Express services.

23 Q And who is it signed by on behalf of Who's Who
24 Executive Club?
25 A Me.

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1 Q And what is the date?

2 A January 31st, 1994.

3 MR. WHITE: Your Honor, the government offers

4 Exhibits 288 and 289.

5 THE COURT: Any objection?

6 MR. JENKS: Objection.

7 THE COURT: What ground?

8 MR. JENKS: They are Who's Who Executive Club

9 documents, Judge. They are hearsay documents. Frankly, I

10 don't see the relevance of admitting the documents.

11 THE COURT: You will have to lay a foundation.

12 It is hearsay. What is the exception to the hearsay

13 rule?

14 MR. WHITE: Contracts of independent legal

15 significance. They are not offered for the truth, your

16 Honor. Simply for the fact that they are entered into by

17 Ms. Benjamin on behalf of the company.

18 THE COURT: I am not sufficiently clear on what

19 company Who's Who Executive Club is, what it is, I am not

20 sure.

21 MR. WHITE: Let me clarify it with Ms. Benjamin.

22 THE COURT: All right.

23 Q You said Who's Who Executive Club was the umbrella
24 company to provide these services; is that correct?
25 A It was the term. Who's Who Executive Club was the

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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1 term.

2 THE COURT: Used by whom?

3 A By Worldwide and Sterling for the umbrella that the

4 benefits fell under.

5 Q Now, was it ever explained to you by Mr. Gordon what

6 Who's Who Executive Club was, what that meant?

7 A No. I mean -- no.

8 Q Well, you signed these contracts; is that right?

9 A Uh-huh.

10 Q Did you sign them on behalf of Who's Who Executive

11 Club?

12 A Y es.

13 Q Did you receive any instructions about whether to

14 sign these documents on behalf of Who's Who Worldwide or

15 on behalf of Who's Who Executive Club?

16 A No. Everything that pertained to the benefits went

17 under Who's Who Executive Club.

18 Q Did you receive any instructions to that effect?

19 A Yes. That's how Mr. Gordon wanted it done.

20 Q Do you know whether or not Who's Who Executive Club

21 was another organization?

22 A No. Who's Who Executive Club.

23 Q What is your understanding of what Who's Who
24 Executive Club was?
25 A It was just the terminology for what the benefits

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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1 fell under as a member of the club, so to speak. I just

2 thought it was terminology.

3 MR. WHITE: Your Honor, I am not sure it is going

4 to get a ny clearer than that.

5 THE COURT: You are objecting, Mr. Jenks?

6 MR. JENKS: Yes, Judge.

7 THE COURT: Overruled.

8 Government's Exhibits 288 and 289 in evidence.

9 (Government's Exhibit 288 received in evidence.)

10 (Government's Exhibit 289 received in evidence.)

11 Q As long as we are at it, Ms. Benjamin, would you take

12 a look at Gordon's Exhibits C, D, F and G.

13 Those are Tribute Magazines, right?

14 (Handed to the witness.)

15 A Yes.

16 Q Tell us what it says above the Tribute on the front

17 of each one of the magazines?

18 A Who's Who Executive Club.

19 MR. WHITE: Those are already in evidence.

20 MR. WHITE: 288 and 289 are received in

21 evidence?

22 THE COURT: Yes, I said that. They are both in

23 evidence.
24 Q Ms. Benjamin, if you look at 288, and that's the
25 agreement you said that was signed in January o f '94?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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1 A Uh-huh.

2 THE COURT: You can't keep saying uh-huh, because

3 there are different variations of those sounds. And they

4 only are sounds, right?

5 THE WITNESS: Yes.

6 THE COURT: So, you have to say, yes, no, I don't

7 know, I don't remember, whatever.

8 I can really make a sound that says no. "Uh-uh",

9 but it would never appear in that reporters -- it would be

10 the same thing. I don't know what would appear, to tell

11 you the truth.

12 Q 288 is a contract relating to the provision of what

13 sort of services to Who's Who's members?

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

15 proceedings.)

16 Q The question was, 288 relates to the provision of

17 what sort of services?

18 A Airborne Express.

19 Q And 289 was the auto insurance?

20 A Yes.

21 Q Now, when Who's Who contracted with Transnational to

22 mark these services to its members, did Who's Who receive

23 any financial compensation?
24 A If a member of Who's Who signed up for any of the
25 services, or I should say used the services.

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1 Q Can you tell us how that would work?

2 A There would be a percentage of monies brought back to

3 Who's Who.

4 Q Based upon what?

5 A Usage of a particular service.

6 Q Now, let's use for example, the long distance

7 discount you described. If a member wanted to sign up for

8 that, how would they go about doing that?

9 A There would be an 800 number provided, and they would

10 call the company directly and sign up.

11 Q And the long distance services we re provided by what

12 carrier?

13 A Sprint.

14 Q Now, when the Who's Who member dialed the 800 number

15 and spoke to the Sprint representative, would the Sprint

16 representative follow a script?

17 A Yes.

18 Q Now, did Who's Who have approval over that script

19 before it was used?

20 A Yes.

21 Q If you can take a look at Exhibit 290 in the book in

22 front of you.

23 If you can take that out of the plastic and look
24 at it.
25 A Uh-huh.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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Benjamini-direct/White

1 Q Do you recognize what that is?

2 A Yes.

3 Q What is it?

4 A A copy of the telemarketing script with a cover

5 letter from me.

6 Q And the cover letter is from you to whom?

7 A Doug, who is the gentleman who handled our account at

8 Transnational.

9 MR. WHITE: Your Honor, the government would

10 offer Exhibit 290.

11 THE COURT: Any objection?

12 MR. TRABULUS: No.

13 THE COURT: Government's Exhibit 290 in

14 evidence.

15 (Government's Exhibit 290 received in evidence.)

16 Q Now, if you can take a look at page 2 of the script

17 on that exhibit, and I am just going to read a brief top

18 from the top.

19 It says: Opening.

20 Mr. Slash Ms. Blank. The reason for my call

21 today is to introduce you to a new benefit being made

22 available by Who's Who Executive Club. Because of Who's

23 Who Executive Club group buying power in long -- a long
24 distance program has been designed to be responsive to our
25 member's business needs. May I tell you about it?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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Benjamini-direct/White

1 Now, Ms. Benjamin, if you can turn to page 4, and

2 at the bottom of the page let me read the lines there.

3 It says, best of all, Mr. , Ms. Blank, every call

4 provides valuable support for Who's Who Executive Club by

5 helping them to decrease their dependence on traditional

6 fund raising.

7 Now is there any notation next to that sentence

8 that I just read?

9 A Yes.

10 Q What does it say there?

11 A Delete.

12 Q And whose handwriting is that?

13 A Mine.

14 Q Now, on page 5, about two-thirds of the way down, it

15 says: -- it says: Let me emphasize, Mr. , Ms. Blank,

16 that there is absolutely no cost to you to join. It is a

17 win-win arrangement. You win because of the lower long

18 distance bill, and Who's Who Executive Club wins because

19 every time you pick up the phone to make a call, a

20 percentage is donated to Who's Who Executive Club to help

21 them a chieve their goals and objectives in the upcoming

22 year.

23 Now, is there a handwritten notation to the right
24 of that paragraph?
25 A Yes.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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Benjamini-direct/White

1 Q What does it say?

2 A Delete.

3 Q Now, if you page ahead to page 11, in the middle it

4 says there, frequently asked member questions. Do you see

5 that?

6 A Yes.

7 Q And if you continue in that section, turning to page

8 14, you can look at the first question there. And I will

9 read it. It says:

10 Question: What percentage of my money is going

11 back to Who's Who Executive Club?

12 Answer: That percentage will vary depending on

13 the participation of the members/supporters of Who's Who

14 Executive Club in the program, as well as the number of

15 long distance calls each mem ber makes.

16 So, even though I cannot quote you an exact

17 dollar figure at this time, I can assure you that your

18 participation will make a difference.

19 Now, is there a notation next to that question

20 and answer?

21 A Yes.

22 Q What does it say there?

23 A Delete.
24 Q Whose handwriting is that in?
25 A Mine.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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1 Q Now, if you flip back to the cover page of that

2 exhibit, that's your fax to the gentleman at

3 Transnational?

4 THE COURT: Exhibit 290?

5 MR. WHITE: Yes.

6 Q First of all, what is the date of your note to the

7 man at Transnational?

8 A March 17th, 1994.

9 Q Could you read slowly what your fax cover page says.

10 A Doug, attached is telemarketing script. Please --

11 Q Slowly.

1 2 A Sorry. Please be advised that these changes and/or

13 deletions are mandatory, we do not want any mention of

14 money made to our members. Also, this is definitely not

15 fund raising. We are not a non-profit organization.

16 Thank you for your cooperation, Debra.

17 Q Did you have any conversations with Mr. Gordon as to

18 whether members should be advised that Who's Who was

19 benefiting financially from them using these services?

20 A Yes.

21 Q And what was said as best as you can recall in those

22 discussions?

23 A He didn't want any mention of money made to the
24 members.
25 Q Did he offer any explanation to you as to why that

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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Benjamini-direct/White

1 was the case?

2 A No. The Affinity Marketing programs are usually done

3 for charities. So there wasn't an explan ation. He just

4 didn't want it mentioned to them.

5 Q Now, you said auto insurance discounts were also

6 offered to members?

7 A Uh-huh.

8 Q And was the auto insurance advertised in Tribute

9 Magazine?

10 A Yes.

11 Q And did you have any discussions with Transnational

12 regarding these ads in Tribute?

13 A Well, Transnational had provided the ads to us.

14 Q Did you have discussions about those ads?

15 A Yes.

16 Q Look at Exhibit 291 and tell us what that is.

17 A That's a fax that was sent to Cathy Woody, W O O D Y,

18 at Transnational.

19 Q If you take it out of the plastic, can you tell us

20 what is attached to the fax cover sheet?

21 A It is a copy of the ad for the auto insurance that

22 was to appear in Tribute.

23 Q Was that being sent to you for your approval?
24 A Yes.
25 MR. WHITE: Your Honor, the gove rnment offers

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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Benjamini-direct/White

1 Exhibit 291.

2 THE COURT: Any objection?

3 MR. TRABULUS: No.

4 THE COURT: Government's Exhibit 291 in

5 evidence.

6 (Government's Exhibit 291 received in evidence.)

7 Q Now, Ms. Benjamin, if you look at the last page,

8 that's the draft ad; is that correct?

9 A Yes.

10 Q I am going to read the paragraph at the bottom that

11 has a box around it. It says:

12 Support for Who's Who Executive Club. The Who's

13 Who Executive Club is paid for its endorsement of this

14 program. Therefore, you can take advantage of the

15 opportunity, the opportunity to reduce the cost of your

16 auto insurance while supporting your association. Don't

17 miss out on the savings call today.

18 Did you put a notation next to that paragraph?

19 A Yes.

20 Q What did you put?

21 A Delete.

22 Q If you look back at the fax cover page, you said that

23 was to Transnational?
24 A Yes.
25 Q Could you read the comment that you put on the fax

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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Benjamini-direct/White

1 cover sheet slowly.

2 A Last paragraph in ad must be deleted. We will not

3 run it this way. No mention is to be made of Executive

4 Club receiving dollar support, also all fax, mail,

5 etcetera, are to be directed to my --

6 THE COURT: You will have to slow down,

7 Ms. Benjamin.

8 THE WITNESS: I am sorry.

9 THE COURT: Do you want to try it from also.

10 THE WITNESS: Also, all fax, mail, etcetera, are

11 to be directed to my attention only.

12 Q You can now put that down?

13 A Okay.

14 Q At the time you joined Who 's Who Worldwide was there

15 such a thing as Tribute Magazine?

16 A No.

17 Q Whose idea was Tribute Magazine?

18 A I guess I would have to say it was pretty much mine.

19 Q Tell us what, if any, discussions you had with

20 Mr. Gordon regarding establishing Tribute Magazine?

21 A I thought that it would be very good for the members

22 to know who else were members within the organization,

23 and, you know, to have some, you know, put a face with a
24 name, so to speak.
25 Q And can you tell us what, if any, response Mr. Gordon

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1 had?

2 A Well, he was receptive to the idea.

3 Q Now, were you aware of a penthouse apartment in

4 Manhattan used by Worldwide or Sterling?

5 A Yes.

6 Q Did Mr. Gordon ever tell you he was staying there?

7 A Yes.

8 Q And what did he tell you?

9 A Well, we had the office in Manhattan. Sterling was

10 based in Manhattan. So on many cases it was just

11 convenient for him to stay there.

12 Q Did you ever contact Mr. Gordon at the New York City

13 penthouse?

14 A Yes, I think once by phone.

15 Q Now, did Mr. Gordon ever indicate to you that he

16 could be contacted at the penthouse?

17 A Yes.

18 Q And under what circumstances was it that he could be

19 contacted there?

20 A If he was staying there, he needed to be reached.

21 Q Can you tell us approximately how often or how

22 frequently you were notified that he could be reached

23 there?
24 A I don't know what you mean by how frequently.
25 Q How frequently were you told that Mr. Gordon could be

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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Benjamini-direct/Whit e

1 reached there?

2 A When he was in the City, in the City office.

3 Q How often was that?

4 A It varied. It depended on the week. He divided up

5 his week between the two locations.

6 Q Okay.

7 Now, did you ever have a conversation with Liz

8 Sautter regarding maintaining a log of the users of that

9 New York City penthouse?

10 A Yes.

11 Q Can you tell us approximately when that was?

12 A I guess it was by late -- I am terrible with dates.

13 The spring time of '94, maybe earlier.

14 Q What is your best -- you are saying it was in 1994?

15 A I think so, yes.

16 Q Can you give us what your best guess is as to when in

17 1994?

18 MR. WALLENSTEIN: Objection.

19 MR. TRABULUS: Objection.

20 THE COURT: Sustained.

21 I thought I went through this whole scenario.

22 MR. WHITE: I am sorry to use the word "guess."

23 Q Can you in your best recollection approximate when
24 you had this conversation?
25 A I think it was spring time.

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1 Q Tell us what you were told in this conversation

2 regarding the log.

3 MR. TRABULUS: Objection.

4 THE COURT: What ground?

5 MR. TRABULUS: Hearsay.

6 THE COURT: Under 801(d)(2) it is not hearsay.

7 Who is Liz?

8 THE WITNESS: Liz was the office manager.

9 THE COURT: Overruled.

10 Q Tell us what Liz told you about maintaining a log for

11 the penthouse?

12 A That if we needed to use the apartment for an

13 editorial meeting or whatever, to make sure that she was

14 aware that she had to maintain a log.

15 Q Now, up to that point did you have occasion prior to

16 that time to hold meetings in New York City?

17 A Prior to that time? Prior to my conversation with

18 her?

19 Q Let me rephrase the question.

20 In 1994 --

21 A Uh-huh.

22 Q -- did you have occasions to have meetings in New

23 York City?
24 A Yes.
25 Q When you had such meetings, where were they held?

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1 A At the Sterling offices, usually.

2 Q Did you ever have any meetings at the New York City

3 penthouse, business meetings?

4 A Business meetings? No.

5 Q You mentioned earlier a woman named Maria Gaspar.

6 A Uh-huh.

7 Q Tell us what Maria Gaspar's position was within the

8 company?

9 A Controller.

10 Q Now, do you recall approximately when Maria Gaspar

11 left Who's Who Worldwide?

12 A I believe it was October of '94.

13 Q Now, focussing on the period shortly before

14 Ms. Gaspar left, did you have a conversation with her at

15 that time -- around that time in your office?

16 A Yes.

17 Q Can you describe what happened in that conversation?

18 A She was just very, very rattled and said she wanted

19 to talk to me. She was on the verge of tears. It was

20 kind of said in passing, and someone came and she was

21 interrupted, but she had just come out of a meeting. She

22 was just very distressed.

23 Q And what, if anything, did she say to you?
24 MR. TRABULUS: Objection, your Honor.
25 THE COURT: On what ground?

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Benjamini-direct/White

1 MR. TRABULUS: Hearsay.

2 THE COURT: Overruled.

3 Q What if anything did Maria Gaspar say to you?

4 A She just came out of a meeting with Bruce Gordon and

5 Mr. Reffsin. She said they asked her to do something.

6 And she was falling apart. I don't know, she was very

7 upset and nervous, and I didn't get a chance to pursue the

8 conversation with her.

9 Q Can you tell us approximately how much longer after

10 this conversation Ms. Gaspar left the company?

11 A A few weeks.

12 Q Excuse me, how many weeks?

13 A A few weeks.

14 Q A few weeks?

15 A Yes.

16 Q Did Ms. Gaspar provide you with any other explanation

17 for her appearance other than what you just described?

18 A No.

19 Q Can you tell us, when was the last time you had

20 spoken to Maria Gaspar?

21 A I think it was Christmas -- I am not sure if it was

22 '94 or '95. Around that time.

23 Q You spoke to her around Christmas time?
24 A Uh-huh.
25 Q And is there a reason why you recollect that it was

HARRY RAPAPORT, CSR, CP, CM OFFIC IAL COURT REPORTER

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Benjamini-direct/White

1 Christmas time?

2 A Because she had sent me a Christmas card.

3 Q And do you recollect whether it was the Christmas

4 immediately after she left the company or sometime

5 thereafter?

6 A I think it was right after she left the company.

7 Q Ms. Benjamin, let me show you Exhibit 643, which is

8 already in evidence.

9 (Handed to the witness.)

10 MR. WHITE: Your Honor, these are the logs which

11 are an attachment to Exhibit 640, which has been handed

12 out to the jury previously.

13 Q Now, Ms. Benjamin, aside from being shown these when

14 you testified before the grand jury, have you ever seen

15 that document before?

16 A No.

17 Q If you can look on the first page of the log that

18 says 200 Hummingbird Road at the top. Do you see that?

19 A Yes.

20 Q If you look a t page 2 of that log, the entry for

21 9/9/94?

22 A Uh-huh.

23 Q Do you see that? It indicates guest, Debra Benjamin,
24 Margaret S, and B Gordon. And the occasion listed is
25 analyze 8/94 performance.

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1 Did you ever attend such a meeting at the 200

2 Hummingbird Road condominium?

3 A No.

4 Q If you look at the last entry on that paper for

5 September 12th, it indicates Debra B, Suzanne K, and

6 Tracey Colletti. And the occasion is planning reception,

7 Russian members.

8 Did you attend such a meeting on that date at the

9 condominium?

10 A No.

11 Q And if you look at September 19th, 1994, it indicates

12 Suzanne K, Tracey Colletti, Debra Benjamin, and the

13 occasion is review members.

14 Did you attend such a meeting?

15 A No.

16 Q And then the following entry for the next day,

17 September 20th, it says as above for the guests, and the

18 occasion is continuation of 9/19/94.

19 Did you attend that meeting on September 20th?

20 A No.

21 Q Again on September 21st --

22 A No.

23 Q It also says, as above. And the occasion is finalize
24 work. Did you attend that meeting at the condo on
25 September 21st?

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Benjamini-direct/White

1 A No.

2 Q Now look for the log that says 250 East 54th Street

3 at the top.

4 For August 9th, 1994, you are listed there; is

5 that right?

6 A Yes.

7 Q And did you attend that meeting?

8 A No.

9 Q For August 11th, '94, you are listed; is that right?

10 A Yes.

11 Q And did you attend that meeting?

12 A No.

13 Q If you look at the next page, August 26th, you are

14 listed as attending a meeting at the penthouse. Do you

15 see that?

16 A Yes.

17 Q Did you attend that meeting?

18 A No.

19 Q August 27th, it says as above, plus B Gordon. Did

20 you attend a meeting on August 27th at the penthouse?

21 A No.

22 Q Look at the entry for September 6th, '94. You are

23 listed there again. Did you attend that meeting?
24 A No.
25 Q And finally on the last page, September 16th, you are

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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Benjamini-direct/White

1 listed as attending a meeting at the penthouse. Did you

2 attend such a meeting?

3 A No.

4 Q And September 17th says as above. Did you attend a

5 meeting on September 17th?

6 A No.

7 MR. WHITE: Your Honor, may I have just one

8 moment?

9 THE COURT: I think this is a good time to take a

10 recess. I said we will leave at 4:45 today.

11 Members of the jury, we will recess until 9:30

12 tomorrow morning. Please try to be here as promptly and

13 punctually as you all have been.

14 Meanwhile do not discuss the case among

15 yourselves or anyone else. Keep an open mind and come to

16 no conclusions until the entire case is over, and you are

17 in the jury room deliberating. We will recess until 9:30.

18 Have a nice evening.

19 (Whereupon, at this time the jury leaves the

20 courtroom.)

21 THE COURT: Ms. Benjamin, you will have to be

22 back prior to 9:30 tomorrow morning.

23 THE WITNESS: Okay.
24 THE COURT: Do you have a list of witnesses?
25 MR. WHITE: I do. Do you want Ms. Benjamin to

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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Benjamini-direct/White

1 step out?

2 THE COURT: Why don't you step out,

3 Ms. Benjamin.

4 (Whereupon, at this time the witness left the

5 witness stand.)

6 MR. WHITE: Your Honor, after Ms. Benjamin, I

7 expect Mr. Wattstein to testify, Steven Wattstein.

8 THE COURT: That's going to be it?

9 MR. WHITE: Ms. Benjamin, I am sure will be quite

10 long on cross-examination, and Mr. Wattstein will be as

11 well.

12 THE COURT: How much longer will you be with

13 Ms. Benjamin?

14 MR. WHITE: I may be finished. I might have five

15 or ten minutes. I am pretty much finished.

16 THE COURT: Is the cross-examination going to be

17 extensive for Ms. Benjamin?

18 MR. WALLENSTEIN: Yes.

19 MR. TRABULUS: Very extensive.

20 THE COURT: All right.

21 MR. TRABULUS: If I may, I would like to ask your

22 Honor to reconsider my hearsay objections which were

23 overruled.
24 Even if your Honor were to find a prima facie
25 evidence of conspiracy is established, I don't think, for

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3901

1 example, the last testimony of Maria Gaspar can be said to

2 be in furtherance of any conspiracy.

3 You have Maria Gaspar not doing something in

4 furtherance to the conspiracy, but saying something to

5 somebody else as to why she was upset about something.

6 That was not furthering any conspiratorial objective. It

7 is hearsay.

8 THE COURT: It is an admission. It is a

9 statement made by somebody, a top level employee of the

10 company in the course of her employment.

11 MR. TRABULUS: Maria Gaspar?

12 THE COURT: Yes.

13 MR. TRABULUS: Against the corporation?

14 THE COURT: Admissible against the corporation.

15 MR. TRABULUS: Tomorr ow I will ask that that

16 be -- a limiting instruction be given.

17 THE COURT: I will give that instruction.

18 MR. WALLENSTEIN: I will ask the same instruction

19 with respect to Mr. Reffsin, since the testimony that

20 Ms. Gaspar came out with a meeting from Mr. Gordon at that

21 time.

22 MR. JENKS: The corporation is not charged in the

23 tax counts.
24 MR. TRABULUS: It is the obstruction.
25 MR. JENKS: The corporation is not charged there

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3902

1 either.

2 MR. WHITE: I think there is an independent basis

3 for it. It is a prior consistent statement of Ms. Gaspar

4 that is offered to rebut the charge of recent fabrication

5 which was raised when she was cross-examined. And it

6 arises prior to the motive to fabricate.

7 If you recall the cross-examination, the

8 defendant's theory on Ms. Gaspar's testimony is that she

9 created these logs on her own, without the knowledge of

10 Mr. Gordon and Mr. Reffsin that they were false, and that

11 it was only when she was approached by the government

12 and/or received immunity that she decided to cover her

13 tracks and attempt to implicate Mr. Gordon and

14 Mr. Reffsin. They cross-examined Ms. Gaspar all day long

15 about how the men in suits with badges, how many times

16 they came to visit her, whether she demanded immunity, and

17 Mr. Jenks said the deal was you scratch the government's

18 back and they will scratch yours.

19 It is clear the only motive for fabrication can

20 be raised is when she learned there was a pending

21 investigation. And this was virtually contemporaneous,

22 this statement that Ms. Benjamin recounted. It was

23 virtually contemporaneous with the alleged cre ation of the
24 logs, because the logs were created September 23rd, '94.
25 Ms. Gaspar left in late October '94, according to her

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3903

1 testimony. Ms. Benjamin places this incident a few weeks

2 before Ms. Gaspar left, which is right around the time we

3 are talking about. So there wouldn't have been a motive

4 to fabricate the involvement of Mr. Gordon and Mr. Reffsin
5 at that time.

6 MR. WALLENSTEIN: There is no testimony that that

7 is what happened. All she said is she came out of a

8 meeting and was upset.

9 MR. TRABULUS: And they asked her to do something

10 which was not specified, which was upsetting.

11 MR. WALLENSTEIN: The implication clearly is that

12 she was asked to create the logs. That's not the

13 testimony and I will move to strike it as irrelevant.

14 MR. T RABULUS: Not only that, your Honor, it is

15 not a situation of classic prior consistent testimony

16 which would be introduced to rebut an issue of recent

17 fabrication. It is actually quite inconsistent with even

18 what Maria Gaspar said. Gaspar said that she went to

19 other people, including Debra Benjamin, and said to them,

20 just in case, you should know you were at such a meet,

21 such and such a meeting at such and such a date. It is

22 actually inconsistent with Gaspar's testimony. It is not

23 prior consistent testimony. It is just hearsay as far as
24 Mr. Gordon and Mr. Reffsin is concerned. With regard to
25 the corporation it is irrelevant because it only bare, on

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3904

1 the tax and obstruction counts, and they are not charged

2 with it.

3 THE COURT: The corporations are not char ged with

4 that?

5 MR. TRABULUS: That's correct.

6 MR. WALLENSTEIN: They are not charged with the

7 obstruction counts.

8 MR. TRABULUS: Or the tax counts.

9 THE COURT: I am not sure about your theory about

10 attack as a recent fabrication.

11 Yes, it occurred at a time when she had no motive

12 to fabricate.

13 MR. WHITE: Your Honor, at lunchtime I looked at

14 the cases, I think it is 801 --

15 MS. SCOTT: 801(d)(1)(b), the section relating to

16 this. And I think there are three requirements, namely

17 that the proffered statement be consistent with the

18 witness' testimony. And here I think it is. It doesn't

19 match exactly, because the second part is vague. But the

20 timing, and the fact she is upset about Mr. Gordon and

21 Mr. Reffsin asked her to do something is --

22 THE COURT: What rule do you say it is?

23 MS. SCOTT: 801 (d)(1)(B).
24 THE COURT: This is bearing on the obstruction
25 count?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3905

1 MR. WHITE: And the tax. Because the submission

2 of these phony logs is an overt log of the tax conspiracy

3 count as well.

4 MR. TRABULUS: I would note that Maria Gaspar

5 testified she quit because she needed better health

6 insurance. It is quite inconsistent with what we just

7 heard.

8 THE COURT: Where was the attack as a recent

9 fabrication? Refresh my recollection as to that.

10 MR. WHITE: I have the transcript as to that.

11 THE COURT: Tell me about that.

12 MR. NEVILLE: May the defendants who are not

13 concerned about this, may they leave?

14 THE COURT: I think you better stay.

15 MR. WHITE: Your Honor, Ms. Gaspar was

16 cross-examined on January 28th, and that's the trial

17 transcript. She was, as your Honor will recall, she was

18 cross-examined extensively with respect to her

19 credibility.

20 THE COURT: I recall that. But I don't recall

21 the exact area that you are talking about.

22 MR. WHITE: When you review the testimony from

23 all the attorneys, Mr. Trabulus, Mr. Jenks, Mr. Neville,
24 all cross-examined her extensively. And from the
25 implication of their questions, the only motive to

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3906

1 fabrication that they could suggest was that Maria Gaspar,

2 upon learning of the government's investigation, or upon

3 being contacted by the government, fabricated a story

4 implicating Mr. Gordon and Mr. Reffsin in this phony logs

5 submission --

6 THE COURT: Where? In what part of the

7 transcript.

8 MR. WHITE: I have it on page 173 2.

9 THE COURT: What specific questions and answers

10 do you say -- is it the whole cross-examination that is

11 attacked?

12 MR. WHITE: Your Honor, some of it is by

13 implication.

14 THE COURT: Over the evening you show me by

15 tomorrow morning at 9:15 where the attack is a recent

16 fabrication. In my view if the attack was as of a recent

17 fabrication, this would be supporting a statement made at

18 the time when she had no motive to fabricate and would be

19 admissible under the rules.

20 MR. WALLENSTEIN: I respectfully disagree for two

21 reasons. One, it has to be consistent, and I believe the

22 statement is inconsistent with Gaspar's testimony.

23 Secondly, Maria Gaspar had a motive to fabricate,
24 because she made up the logs. That gives her a
25 contemporaneous motive to lie about it.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COUR T REPORTER

3907

1 MR. WHITE: What possible reason would she have

2 at the time to walk into Mr. Bench's office and falsely,

3 Ms. Benjamin's office and falsely implicates Mr. Reffsin
4 and Mr. Gordon?

5 THE COURT: If there was a claim of recent

6 fabrication, I would let this in under 801(d)(1)(B). It

7 is up to the jury to determine how consistent it is. .

8 And it is somewhat consistent with her testimony at the

9 trial.

10 Now, I remember something, but I don't recall

11 exactly. If you show me the exact passages that you say

12 constitute an attack as recent fabrication, namely, that

13 her testimony now is a recent fabrication, I will consider

14 it.

15 MR. WHITE: Okay.

16 I will go through it. I can tell you for

17 example, here on page 17 --

18 THE COURT: Don't give me hit or miss, here,

19 there, now. I have anot her matter now at 5:00 o'clock.

20 Everyone come in at 9:15 tomorrow morning, and we will

21 thrash it out then.

22 MR. WHITE: All right.

23 MR. WALLENSTEIN: Your Honor, I indicated that I
24 have a commitment for this Friday requiring me to be out
25 of town. Mr. Reffsin has agreed to waive my appearance,

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3908

1 if you will, for Friday, and Mr. Geduldig has agreed to

2 stand in for me for that session, if that is all right

3 with the Court.

4 THE COURT: Well, can I talk to your client about

5 that?

6 MR. WALLENSTEIN: Absolutely.

7 THE COURT: You are Mr. Reffsin?

8 THE DEFENDANT REFFSIN: Yes, I am.

9 THE COURT: You understand you have a

10 constitutional right to have your attorney present with

11 you during every part of this trial?

12 THE DEFENDANT REFFSIN: Yes, I do.

13 THE COURT: You understand it is in your interest

14 to have your own attorney present here during every part

15 of the trial?

16 THE DEFENDANT REFFSIN: Yes, I do.

17 THE COURT: You understand that it is detrimental

18 to you not to have your attorney here during every part of

19 the trial?

20 THE DEFENDANT REFFSIN: Yes, I do.

21 THE COURT: Do you understand that by allowing

22 Mr. Geduldig, who is a very good lawyer, to represent you,

23 he has a different interest in this case, and he is
24 representing Annette Haley and not you; you understand
25 that?

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3909

1 THE DEFENDANT REFFSIN: Yes.

2 THE COURT: You understand there may be

3 conceivably some conflict between his duty to represent

4 Annette Haley and his duty to represent you. I don't know

5 if there is or not, but there could be. You understand

6 that?

7 THE DEFENDANT REFFSIN: Yes, I do.

8 THE COURT: Understanding all these advantages of

9 having Mr. Wallenstein here, and not letting him go, and

10 not having Mr. Geduldig represent you, what do you want to

11 do?

12 THE DEFENDANT REFFSIN: May I ask him a

13 question?

14 THE COURT: Sure.

15 (The defendant Reffsin confer with

16 Mr. Wallenstein.)

17 THE DEFENDANT REFFSIN: I understand, your Honor.

18 THE COURT: You understand what?

19 THE DEFENDANT REFFSIN: It is not in my best

20 interest for my attorney not to be here. And I understand

21 and I will accept and waive the right.

22 THE COURT: You understand all these rights?

23 THE DEFENDANT REFFSIN: Yes.
24 THE COURT: Yet, you consent to have
25 Mr. Wallenstein not here on Friday.

HARRY RAPAPORT, CSR , CP, CM OFFICIAL COURT REPORTER

3910

1 THE DEFENDANT REFFSIN: Yes.

2 THE COURT: Between 1:30 and whenever we have end

3 up?

4 THE DEFENDANT REFFSIN: Yes, I am sure.

5 THE COURT: You are excused Mr. Wallenstein.

6 MR. WALLENSTEIN: Thank you.

7 THE COURT: If I didn't correct it with that

8 allocution, you are free.

9 MR. GEDULDIG: Your Honor, you said everybody

10 should be here at 9:15 tomorrow. The legal argument going

11 up right now doesn't really affect the salespeople.

12 THE COURT: You want to bring all your clients up

13 and have them waive their right to be present tomorrow

14 morning at 9:15, or do you want to have them get up 15

15 minute earlier and be here?

16 MR. GEDULDIG: I think they are already gone.

17 THE COURT: Okay. Then they will be here

18 tomorrow.

19 (Case on trial adjourned until 9:15 o'clock a.m .,

20 Thursday, February 12, 1998.)

21

22

23
24
25

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3911

1 I-N-D-E-X

2
W-I-T-N-E-S-S-E-S
3
PAGE LINE
4 J A M E S S P E N C E R................... 3711 22
DIRECT EXAMINATION............................... 3712 8
5 CROSS-EXAMINATION................................ 3726 19
CROSS-EXAMINATION................................ 3734 21
6 CROSS-EXAMINATION................................ 3748 4
CROSS-EXAMINATION................................ 3749 15
7 CROSS-EXAMINATION................................ 3752 13
CROSS-EXAMINATION................................ 3761 18
8 CROSS-EXAMINATION................................ 3762 7
CROSS-EXAMINATION................................ 3764 1
9 REDIRECT EXAMINATION............................. 3769 8
RECROSS-EXAMINATION.............................. 3772 1
1 0 FURTHER REDIRECT EXAMINATION..................... 3781 14
FURTHER REDIRECT EXAMINATION..................... 3782 18
11
D E B R A B E N J A M I N................... 3788 15
12 DIRECT EXAMINATION............................... 3789 3
VOIR DIRE EXAMINATION............................ 3797 1
13 DIRECT EXAMINATION (Cont'd)...................... 3801 12

14

15

16

17

18

19

20

21

22

23
24
25

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

3912

1 E-X-H-I-B-I-T-S

2
Government's Exhibit 41-D received in evidence... 3716 3
3 Government's Exhibit 41-B received in evidence... 3721 8
Government's Exhibit 41-F received in evidence... 3723 7
4 Government's Exhibits 101 through 104 received
in evidence...................................... 3801 5
5 Government's Exhibits 106 through 286 received
in evidence.. .................................... 3801 7
6 Government's Exhibits 1100 through 1146 received
in evidence...................................... 3801 9
7 Government's Exhibit 323 received in evidence.... 3804 21
Government's Exhibit 324 received in evidence.... 3804 22
8 Government's Exhibit 325 received in evidence.... 3804 23
Government's Exhibits 301 through 322 received
9 in evidence...................................... 3806 14
Government's Exhibits 900 through 931 received
10 in evidence...................................... 3808 9
Government's Exhibits 943 through 948 received
11 in evidence...................................... 3808 11
Government's Exhibits 950 through 1016 received
12 in evidence...................................... 3808 13
Government's Exhibit 1018 received in evidence... 3808 15
13 Government's Exhibit 1025 received in evidence... 3808 16
Government's Exhibit 1026 received in evidence... 3808 17
14 Government's Ex hibit 1028 received in evidence... 3808 18
Government's Exhibit 1029 received in evidence... 3808 19
15 Government's Exhibit 288 received in evidence.... 3881 9
Government's Exhibit 289 received in evidence.... 3881 10
16 Government's Exhibit 290 received in evidence.... 3884 15
Government's Exhibit 291 received in evidence.... 3889 6
17

18

19

20

21

22

23
24
25

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER

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