2500 (516) 292-6963 22 23
Proceedings recorded by mechanical stenography, transcript produced by computer-assisted transcription. 24 25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2502 1 (Case called.) 2 THE COURT: All right. Bring in the jury.
3 (Jury enters.)
4 THE COURT: Good morning, members of the jury.
5 Please be seated.
6 It is indeed gratifying that in one of the
7 largest jury selection districts in the United States, the
8 Eastern District of New York which as I told you several
9 times stretches from the New Jersey border of Staten 10 Island to Montauk Point, everybody is here earlier than on 11 time. Congratulations to yo
u. 12 You may proceed. 13 MS. SCOTT: The government calls Wendi Springer. 14 W E N D I S P R I N G E R , having been first duly 15 sworn by the Clerk of the Court, was examined and 16 testified as follows: 17 THE WITNESS: Wendi Springer, S-P-R-I-N-G-E-R 18 DIRECT EXAMINATION 19 BY MS. SCOTT: 20 Q Could you tell us where you live, Ms. Springer? 21 A I live in Bohemia. 22 Q And how old are you? 23 A 30. 24 Q What do you do for a living now? 25 A I work for a large media company.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2503 Springer-direct/Scott
1 Q How long have you been doing that? 2 A A year and four months.
3 Q Was there a time when you worked at a company called
4 Who's Who Worldwide Registry, Incorporated?
5 A Yes.
6 Q When did you begin working there?
7 A I believe it was the f
irst week in January of '91.
8 Q And how long did you work there?
9 A Up until the day that the company was closed down. 10 Q When was that? 11 A Which was March 30th or 31st of '95. 12 Q So you worked there approximately four years? 13 A A little over four. 14 Q Now, what was your position when you started there in 15 1991? 16 A Receptionist and data entry. 17 Q And where was your office located at that time? 18 Where was the Who's Who Worldwide office located? 19 A 99 Seaview Boulevard. 20 Q Which town? 21 A In Port Washington. 22 Q Did your position change over the four years you were 23 there? 24 A Yes. 25 Q When did it change first?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2504 Springer-direct/Scott
1 A Uhm, I would say a little after maybe seven months or 2 so.
3 Q And how did
your job change at that time?
4 A When the company expanded my title of
5 receptionist/data entry was to be editorial assistant.
6 Q Where was the office located at the time when your
7 job changed?
8 A I believe we were in the process of moving and like I
9 said seven or eight months later it was at the Lake 10 Success office. 11 Q What were your responsibilities as an editorial 12 assistant? 13 A I was proofing the applicants, their information they 14 had sent in by mail or fax. 15 Q When you refer to "applicant," who do you mean? 16 A Potential customers. 17 Q Do you mean people who had applied for membership? 18 A Yes. 19 Q When memberships were sold to these companies. 20 MR. GEDULDIG: Objection to the form of the 21 question, Judge. 22 THE COURT: I didn't hear the question yet. 23 BY MS. SCOTT: 24 Q When memberships
were sold to customers, how was the 25 contact initially made?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2505 Springer-direct/Scott
1 MR. GEDULDIG: Now I object, Judge. 2 THE COURT: Are you objecting to the form? Why?
3 MR. GEDULDIG: It contains a fact not in
4 evidence. She said something was sold. No evidence has
5 there been that was sold, so she is testifying for the
6 witness.
7 MR. SCHOER: I join in the objection, Your Honor.
8 THE COURT: Did people become members of Who's
9 Who? 10 THE WITNESS: Yes. 11 THE COURT: How did they become members? 12 THE WITNESS: Through a sale. 13 THE COURT: Did they have to pay for it? 14 THE WITNESS: Yes. 15 THE COURT: Overruled. You may proceed. 16 BY MS. SCOTT: 17 Q How did these people who applied for membership first 18 contact through the company? 1
9 A Through phone -- through a mailing house they would, 20 I would assume, get a list. 21 MR. GEDULDIG: Objection to what she assumes. 22 THE COURT: When you assume -- 23 THE WITNESS: Let me rephrase that. When a 24 mailing list was from a place called, I believe Antun's, 25 that is a company that provided a mailing list.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2506 Springer-direct/Scott
1 THE COURT: Antun's? 2 THE WITNESS: Antun's.
3 THE COURT: How do you spell that? A-N-T-O-N or
4 U-N?
5 THE WITNESS: U-N, I believe. I'm not --
6 BY MS. SCOTT:
7 Q So in other words, letters were sent to these
8 companies?
9 A Letters were sent to the customers. 10 MR. JENKS: Objection. 11 THE COURT: Please rise, Mr. Jenks. 12 MR. JENKS: I'm sorry, objection. 13 THE COURT: Sustained as to form. Please strike
14 out the answer. 15 BY MS. SCOTT: 16 Q How did the company contact the people they were 17 attempting to sell these memberships to? 18 A By phone. From a lead card that was submitted 19 through the mail or by fax. 20 Q Now, what is a lead card? 21 A It's a card approximately (indicating) -- I don't 22 know the dimensions. It would have the potential 23 customer's name, occupation, company name, city, state, 24 address, industry, organization, expertise. 25 Q Who had filled out the information on the lead card?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2507 Springer-direct/Scott
1 A The potential customer. 2 Q I'm showing you Government's Exhibit 9-D for
3 Identification.
4 What is that document?
5 A This is a lead card.
6 Q And how was it that the potential customers obtained
7 those lead cards and filled
them out?
8 A It was through a mailing house.
9 Q How did each customer obtain each particular lead 10 card? 11 THE COURT: You have to go a little slower. I'm 12 having trouble keeping up. 13 Now, what number is this for Identification? 14 MS. SCOTT: 9-D for Identification. 15 THE COURT: Okay. 16 BY MS. SCOTT: 17 Q How did each customer obtain each of those lead 18 cards? 19 A It was sent with a letter, a nomination letter and 20 this card was included in the information that was sent to 21 -- or I could say solicitation mail that was sent to 22 them. 23 Q Did you see these solicitation letters sent out to 24 potential customers? 25 A Yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2508 Springer-direct/Scott
1 Q Under what circumstances did you see these letters? 2 A When they came back as, y
ou know, deceased, you know,
3 certain things like that. People would say the person has
4 been dead for 20 years, please do not, you know, send any
5 more correspondence, take us off your mailing list,
6 etcetera, etcetera.
7 Q What would you do with these letters that you would
8 see?
9 A They would be tossed outside the facility. 10 Q What were you -- 11 THE COURT: Apparently it is getting 12 contentious. It's reaching epidemic proportions. I 13 cannot keep up with you. You will have to slow down, Ms. 14 Scott. BY MS. SCOTT: 15 Q Under what circumstances would you see these letters 16 that came into the company? 17 A If I was asked to sort the mail, if an overabundance 18 of it came in, I was asked at certain times to separate 19 the cards, separate, you know, separate what they called 20 NG, which were the nixies. 21 THE COURT: N-I-X-I-E
-S? 22 THE WITNESS: I believe so. That's what 23 terminology was used. They were called nixies. 24 BY MS. SCOTT: 25 Q Now, I'm showing you Government's Exhibit 60-H for
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2509 Springer-voir dire/Jenks
1 Identification. 2 Can you tell us what that document is?
3 A This is the solicitation letter that was sent.
4 Q How do you recognize that?
5 A I saw it three, four times a week.
6 MS. SCOTT: I offer Government's Exhibit 60-H.
7 THE COURT: Any objection?
8 MR. JENKS: I would like a voir dire, Your Honor.
9 THE COURT: Go ahead. 10 VOIR DIRE EXAMINATION 11 BY MR. JENKS: 12 Q Ms. Springer, I would ask you to take a look at 13 60-H. 14 Did you specifically see this letter? 15 A This one? Kathy Nielsen. 16 Q Yes. 17 A I saw -- I saw -- 18 Q N
o, I'm asking you -- 19 A Did I particularly see the one addressed to? 20 Q Did you see the one addressed to who? 21 A Reid Rotatori. 22 THE COURT: You see, we don't know these names 23 and the reporter has to get down accurately every name 24 spelled correctly. 25 THE WITNESS: Okay.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2510 Springer-voir dire/Jenks
1 THE COURT: Okay. 2 BY MR. JENKS:
3 Q The question was -- withdrawn.
4 Take a look at 60-H, Government's Exhibit 60-H.
5 Do you see the date on that letter?
6 A Yes.
7 Q It's dated June 17, 1993?
8 A Umm-hmm.
9 THE COURT: Yes? 10 THE WITNESS: Umm-hmm. 11 BY MR. JENKS: 12 Q Is that yes? 13 A Yes, it is. 14 Q It's addressed to a Reid Rotatori; am I correct? 15 A Yes. 16 Q Do you know a Reid Rotatori? 17 A No
, I do not. 18 Q Did you see this letter back in June of 1993 prior to 19 it being addressed to Reid Rotatori? 20 A No, because it was not mailed -- 21 Q Your answer is no, ma'am? 22 A No. 23 Q Did you mail this letter out? 24 A No, I did not. 25 Q Did you prepare this letter?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2511 Springer-voir dire/Jenks
1 A No, I did not. 2 Q Do you know whether Reid Rotatori actually received
3 this letter?
4 A I wouldn't be able to tell you, no.
5 Q Did you at any time speak with Reid Rotatori?
6 A I spoke with thousands of customers. I wouldn't be
7 able to tell you if I spoke with him.
8 Q So you have no independent recollection?
9 A No, absolutely not. 10 Q Did you draft the contents of this letter? 11 A No, I did not. 12 Q Have you seen the content of this le
tter? 13 A I've seen the format of these letters, yes. 14 Q Would it be fair to say that Who's Who Worldwide 15 Registry sent out numerous letters with content other than 16 what is contained in here? 17 A There was different formats. There was different 18 signatures. Kathy Nielsen was one of the people at that 19 time where they were using that name. There was also a 20 Nancy Moore who they used, that they used who did not 21 exist. 22 MR. TRABULUS: I move to strike. 23 THE COURT: Read it back, please. 24 (Record read.) 25 THE COURT: Is the answer yes to that?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2512 Springer-voir dire/Jenks
1 THE WITNESS: Yes. 2 THE COURT: The entire answer previously is
3 stricken. The jury is instructed to disregard it.
4 BY MR. JENKS:
5 Q You didn't sign this letter; am I correct?
6 A No, I did not. I believe Liz Sautter signed these.
7 Q Do you know who signed the letter for sure?
8 A I believe Liz Sautter did. I'm not saying -- I'm not
9 sure she signed this particular letter, but there were 10 letters signed with her signature under a person's name, 11 whether it be Kathy Nielsen, whether it be Nancy Moore or 12 whatever names were used. 13 Q You didn't sign this letter, did you? 14 A Absolutely not. 15 Q You didn't prepare the letter, correct? 16 A No, I did not. 17 Q You didn't mail the letter, correct? 18 A I didn't mail it. 19 Q When was the first time you saw this letter prior to 20 your testifying here today? 21 A I haven't seen this particular letter. 22 Q All right. 23 A As I explained before. 24 MR. JENKS: I have no further questions. I 25 object to the introduction of this letter with respect to
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2513 Springer-direct/Scott
1 this witness' testimony. 2 THE COURT: I'm sorry, I didn't hear you.
3 MR. JENKS: Based on this witness' testimony, I
4 object to the introduction of this letter.
5 THE COURT: Are you attempting to offer this as a
6 business record?
7 MS. SCOTT: Your Honor, we'll withdraw it and
8 attempt to enter it later.
9 THE COURT: I'll attempt you to lay a foundation 10 if you want to do that. It's up to you. 11 MS. SCOTT: May I confer for a moment, Your 12 Honor? 13 THE COURT: Sure. 14 (Counsel confer.) 15 MS. SCOTT: Your Honor, we'll withdraw the 16 exhibit and attempt to put it in later in the case with 17 another custodian. 18 THE COURT: Very well. 19 MS. SCOTT: Thank you. 20 DIRECT EXAMINATION 21 BY MS. SCOTT: (Continued
.) 22 Q Now, Ms. Springer, going back to the lead card. When 23 a person has filled out the lead card and mailed it into 24 the company, what happened to it at that point? 25 A At that point they were sorted by on the right -- on
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2514 Springer-direct/Scott
1 this corner over here there is a code, this one in 2 particular is ML-F. I don't know what the particular
3 coding means. This coding could have been sent to people
4 in the health care industry. A code NN could be in the
5 engineering field. There were certain codes that indicate
6 industry that the letters were addressed to.
7 THE COURT: Excuse me for one minute. I do not
8 understand. Who makes these lead cards? How do they
9 start out these lead cards? Where are they, in your 10 office? 11 THE WITNESS: What happens is -- 12 THE
COURT: No, listen to me, will you? These 13 lead cards that you have, are they forms that are in your 14 office in blank? 15 THE WITNESS: We had some blank ones, but no, 16 they were done, as I explained before, from a mailing 17 house. 18 THE COURT: Some other company produced them? 19 THE WITNESS: Produced them. 20 THE COURT: And sends them to you? 21 THE WITNESS: Sent them to the customers, the 22 potential customers. 23 THE COURT: How does the mailing company know who 24 to send it to? 25 THE WITNESS: They have lists. Mailing lists.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2515 Springer-direct/Scott
1 Have you ever received anything in the mail where 2 people --
3 MR. TRABULUS: Objection.
4 MR. JENKS: Objection.
5 THE COURT: Listen to me. I'm trying to find out
6 and maybe clear it up for the jur
y also. These lead cards
7 are -- start off in the mailing list company's
8 headquarters, correct?
9 THE WITNESS: Yes. 10 THE COURT: And according to a list they are 11 mailed to potential customers. Are they mailed with the 12 solicitation letter? 13 THE WITNESS: Yes. 14 THE COURT: And then who fills out these lead 15 cards? 16 THE WITNESS: Excuse me, potential customers. 17 THE COURT: And then the potential customer does 18 what with the lead card? 19 THE WITNESS: Either she would fax them back or 20 send them back to the mail. 21 THE COURT: Back where? 22 THE WITNESS: Whatever address we were at. 23 THE COURT: Not back to the printing companies? 24 THE WITNESS: No. 25 THE COURT: Back to your company?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2516 Springer-direct/Scott
1 THE WITNESS: The ba
ck of the card over here has 2 the address of Who's Who Worldwide.
3 THE COURT: But what is written on the card is
4 done by the customer?
5 THE WITNESS: Yes.
6 THE COURT: Okay.
7 BY MS. SCOTT:
8 Q And Ms. Springer, we'll come back to the codes later
9 on in the testimony. 10 Now, you mentioned that when the lead cards came 11 back into the company they were sorted? 12 A Yes. 13 Q After they were sorted, what happened to them? 14 A They were rubber banded and put in a locked drawer. 15 Q What happened after that? 16 A They were distributed. 17 Q Who were they distributed to? 18 A The group leaders to pass out. 19 Q Who were they passed out to? 20 A The telemarketers, salespeople. 21 Q What did the salespeople do with them when they 22 received these lead cards? 23 A They would make phone calls. 24 Q Who wo
uld they call? 25 A They would call the customer's name, whatever phone
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2517 Springer-direct/Scott
1 number was on here and asked for the individual who filled 2 out the card.
3 Q Once they got in touch with that individual by
4 telephone, what did they do?
5 A They would read from a pitch trying to sell them a
6 membership.
7 MR. JENKS: Judge, I would object to this
8 testimony unless it is specific to an individual
9 defendant. I would ask that the testimony be stricken as 10 to what the general operation of the salesperson was. 11 There's been no testimony that this woman has worked in 12 the sales department or made any sales. 13 MR. NEVILLE: Your Honor, I don't object to the 14 word "sales" being used. 15 THE COURT: First of all, I've told you, Counsel, 16 not to make thes
e speeches. If you have an objection just 17 make the objection and if I want to know why, I'll ask you 18 why. I'm not bashful, Mr. Jenks. 19 MR. JENKS: I understand, Your Honor. 20 THE COURT: Overruled. 21 Was there an answer to the question? 22 MS. SCOTT: Can you please read back the 23 question. 24 THE COURT: Please don't. 25 (Record read.)
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2518 Springer-direct/Scott
1 A They would read from a pitch which was in their 2 cubicles and they would jot down information that the
3 person was telling them.
4 MR. LEE: I object, Your Honor.
5 THE COURT: On what grounds?
6 MR. LEE: I think there's testimony about a
7 nonverbal assertion which does not pass the hearsay rule.
8 THE COURT: Overruled.
9 Ms. Springer, when you are testifying, what is 10 the basis for the
information as to what these salespeople 11 do? 12 THE WITNESS: What knowledge do I have on what 13 the salespeople did? 14 THE COURT: Yes. How do you know what they do? 15 THE WITNESS: I was in that office for years. I 16 saw it. I heard it with my ears. 17 THE COURT: Overruled. 18 MR. DUNN: I would object because on how much she 19 could hear. We're talking about an entire pitch. I would 20 ask you to pursue that, if you would. 21 THE COURT: Your objection is overruled. 22 Go ahead. 23 MS. SCOTT: Thank you, Your Honor. 24 I believe Ms. Springer did answer the question I 25 asked, so I'll move on to the next question.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2519 Springer-direct/Scott
1 THE COURT: Good. We are making progress 2 rapidly. At this rate we'll be here all winter.
3 I'm only kidding. Go ahead.
4 BY MS. SCOTT:
5 Q Ms. Springer, after a telemarketer made a sale to a
6 customer, what did the salesperson do to record the sale?
7 A They had a sales sheet where they would write the
8 customer's name, the membership, the price and at that
9 time they would have to have it signed by one of the group 10 leaders to validate that there was a sale since they were 11 basically on quotas. They had to meet a certain quota. 12 So the group leader would have to decide -- 13 MR. SCHOER: Objection, Judge. This is 14 unresponsive. 15 THE COURT: Read it back. 16 (Record read.) 17 THE COURT: What did the salesperson do to record 18 the sale? 19 THE WITNESS: They wrote it on a sales sheet, had 20 a sales sheet which would have the day on it and they 21 would write like I was explaining before, they would write 22 the customer's name, they would write the
sale amount and 23 what the membership duration was, if it was a lifetime 24 membership, if it was a five-year membership, three-year 25 membership. An associate membership or if they just
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2520 Springer-direct/Scott
1 wanted a wall plaque and that's what would happen. 2 BY MS. SCOTT:
3 Q Now, Ms. Springer, you mentioned a sales sheet.
4 MR. NELSON: Your Honor, I would ask the Court
5 rule on the application, that the Court strike the answer
6 to the prior question.
7 THE COURT: That answer that goes into what a
8 group leader does, that part is stricken.
9 MR. NELSON: Thank you, Your Honor. 10 BY MS. SCOTT: 11 Q Ms. Springer, I'm showing you Government's Exhibit 12 9-C for Identification. 13 What is that document? 14 A This is an order form. 15 Q Now, what is an order
form? 16 A The order form is written up while the person is on 17 the phone with a customer. Usually it wasn't only because 18 the customers were talking quick so they would write it on 19 scrap paper and then they would write their sales out. A 20 lot of them would do it while they were in the smoke room 21 and they would have time to do it. Their job was to be on 22 the phone at all times, that was their instructions and 23 they would write the orders up, some of them would write 24 them two minutes after they wrote it, or write on the 25 phone with the customers who they knew weren't going to be
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2521 Springer-direct/Scott
1 sold. This is the order form. 2 Q So did this order form represent a particular sale?
3 A Yes, it does.
4 Q And the information, who writes the information on
5 that order
form?
6 A The salesperson.
7 Q Now, what information is recorded on the order form?
8 A Company name, the person's name, how they want their
9 wall plaque to appear. They have a current organization 10 which would be the company, they have street address, 11 city, state, zip, phone number, they have a ship to, a 12 bill and a ship to area, and then they have the business, 13 they have the product that they provide or sell. They 14 have the type of organization, the area of distribution, 15 expertise, the parent organization, favorite book and 16 author or favorite book author. 17 Q And this is information about the customer that was 18 recorded on the order form? 19 A Yes, umm-hmm. 20 Q And what other information about the sales are 21 recorded on the form? 22 A What is checked off. There's a section, a time year 23 membership, five-year, three-year
, one-year associate, 24 wall plaque and there is the registry. 25 Q So the salesperson would check off the length of the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2522 Springer-direct/Scott
1 membership that had been purchased? 2 A Yes.
3 Q Would the salesperson also report the method of
4 purchase, method of payment rather?
5 A Yes, credit card.
6 Q After this information was placed on these order
7 forms, what happened to the order forms?
8 A The order forms were picked up. They were put in a
9 bin, each salesperson had their own bin, and they would be 10 picked up within 15 minutes to a half-hour. It could be 11 when somebody was available, usually within a half-hour, 12 somebody would be told to go around in charge of picking 13 up the order forms. 14 Q What would happen after the order forms were picked 15 up?
16 A Go in my room. 17 Q What would you do with them? 18 A Put in a file cabinet. When I was able to look them 19 over, proof them, edit them, I would do them. 20 Q What was your responsibility with respect to these 21 order forms? 22 A To make sure of the qualifications. To make sure the 23 spelling was accurate. To make sure that the person was, 24 you know, reputable, I would say, that they were a 25 business leader.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2523 Springer-direct/Scott
1 Q Reputable enough to become a member of Who's Who 2 Worldwide; is that correct?
3 A Yes.
4 Q Now, once you had checked the information on the
5 order form, what did you do with the order form?
6 A They would be distributed to the girls for data entry
7 and I would also do the data entry as well.
8 Q So after you had signed of
f on the order forms, you
9 sent them to the data entry people? 10 A Yes. 11 Q Now, what was the purpose of sending them to data 12 entry? 13 A They would put the information in the database and at 14 the end of the day we would run the invoices and they 15 would be mailed out. 16 Q The data entry people issued the invoices; is that 17 correct? 18 A They were printed out and then whoever was available 19 to, would put the mail together. Sometimes it was three 20 or four girls. Sometimes, you know, it was two. 21 Depending on how many invoices were generated. 22 Q (Handing.) I'm showing you Government's Exhibit 9-B 23 for Identification. 24 Can you tell us what that is? 25 A This is one of the invoices that would be attached to
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2524 Springer-direct/Scott
1 this order fo
rm. Actually the same individual. 2 Q And is that invoice, was that invoice issued after
3 the information in the order form had been given to the
4 data entry people?
5 A Yes.
6 Q What happened to the invoices after they were
7 generated?
8 A They were, like I explained, there was girls that
9 would -- I didn't explain this part. What they would do 10 most predominantly, all of the orders that came in were by 11 credit card. So there would be a stamp as per your 12 instructions, I forget what the exact terminology is, it 13 would say it had been changed to your credit card. At the 14 bottom it would say "please --" this is split billed, this 15 says "please correct any errors in the text or gold 16 remittance company." That would be provided for by check, 17 as I explained most of these orders that came in were by 18 credit card. 19 Q We'll go throu
gh that in just a minute, 20 Ms. Springer. But once these invoices had been generated 21 by the company, what happened to the invoice? 22 A They were put in the envelope, they were -- you are 23 talking about the order form with this copy? That's what 24 you are asking? 25 Q I'm talking about two separate things. First were
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2525 Springer-direct/Scott
1 they sent to somebody? 2 A Yes, to the people who signed up, the members.
3 Q They were sent to the customer?
4 A Yes.
5 Q How did the company maintain their records of the
6 sale?
7 A This was their document and it would be bundled up,
8 alphabetized by the filing person and they would be put in
9 the appropriate files alphabetically. 10 Q And were other supporting documents attached to each 11 invoice and order form? 1
2 A Yes. Usually, you know, the card would be attached 13 on the back like this -- I forgot one thing, sorry. When 14 -- at the end of the day or whoever, the next morning or 15 a lot of times I would bring them home with me, I didn't 16 have a lot of time sometimes to do it during work, the 17 orders would be checked for spelling, especially the 18 person's name, you know, for accuracy, for the wall 19 plaque, and all the people, I mean people are human, they 20 make errors while doing data entry, and we had to watch 21 for errors. So somebody -- it was usually me who had to 22 proof it again to make sure that the data entry person, 23 you know, was accurate, and if not it was given back to 24 the appropriate person who put in the information 25 incorrectly so they could learn from their mistakes, and
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2526 Springer-d
irect/Scott
1 the information was changed and they went back to be 2 filed.
3 Q Once you had proofread that invoice, how did the
4 company then record the sale? What documents were stored
5 with the company to record the sale?
6 A There was a credit card transmittal slip that usually
7 would be attached to the front (indicating) and the card
8 would be on the back, if there was a card, and that would
9 be it. Just the pink form and the order form. 10 Q Pink form, order form, credit card slip and lead 11 card? 12 A Yes. 13 Q And any other documentation that related to the 14 transaction? 15 A There would be a code. This code where it says, 16 okay, 91-157, is the approval that they got from the bank 17 or American Express or Visa, whatever, whatever credit 18 card they paid by. 19 Q I'm sorry. 20 I'm showing you Government's Exh
ibit 9-A. 21 THE COURT: 9 what? 22 MS. SCOTT: 9-A for Identification. 23 BY MS. SCOTT: 24 Q Tell us what that is? 25 A The credit card transmittal and this one actually
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2527 Springer-direct/Scott
1 belongs to this one because I matched up the number, 2 authorization number and the transaction number.
3 MS. SCOTT: Your Honor, I'm going to show
4 Ms. Springer a number of exhibits and I will have to read
5 off their numbers into the record.
6 I will be showing Ms. Springer Government's
7 Exhibits 3-A, 3-B, 3-C, 3-D and 3-E.
8 Government's Exhibits 4-A, 4-C, 4-D and 4-E.
9 Government's Exhibits 5 -- 10 THE COURT: You have to go slower. 11 MS. SCOTT: Government's Exhibits 5-A, 5-B, 5-C, 12 5-D. 13 6-A, 6-B, 6-C, 6-D, 6-E, 6-F, 6-G and 6-H. 14 7-A, 7-B, 7-C, and 7-D
. 15 8-A, 8-B, 8-C, 8-D, 8-E, 8-F. 16 9-A, 9-B, 9-C, 9-D, 9-E, 9-F, 9-G, 9-H. 17 10-A, 10-B, 10-C. 18 11-A, 11-B, 11-C, 11-D, 11-E. 19 12-A, 12-B, 12-C, 12-D, 12-E, 12-F, 12-G, 12-H. 20 13-A, 13-B, 13-C, 13-D, 13-E, 13-F, 13-G. 21 14-A, 14-B, 14-C, 14-D. 22 15-A, 15-B, 15-C, 15-D. 23 MR. WHITE: Your Honor, may I list the numbers as 24 A through D. 25 THE COURT: Yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2528 Springer-direct/Scott
1 MS. SCOTT: Okay. 16-A through 16-D. 2 17-A through 17-G.
3 18-A through 18-H.
4 19-A through 19-D.
5 20-A through 20-H.
6 21-A through 21-D.
7 22-A through 22-D.
8 23-A through 23-D.
9 24-A through 24-F. 10 25-A through 25-D. 11 26-A through 26-D. 12 27-A through 27-D. 13 28-A through 28-E. 14 29-A through 29-D.
15 30-A through 30-D. 16 31-A through 31-D. 17 33-A through 33-E. 18 34-A through 34-D. 19 35-A through 35-D. 20 36-A through 36-D. 21 37-A through 37-D. 22 38-A through 38 E. 23 Skipping down to 39-D. 24 40-A through 40-D. 25 41-A through 41-E.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2529 Springer-direct/Scott
1 42-A to 42-D. 2 And 42-G, 42-H, and 42-I.
3 43-A through 43-D.
4 44-A through 44-G, 44-H also.
5 45-A through 45-E.
6 46-A through 46-D.
7 47-A through 47-D.
8 48-A through 48-D.
9 49-A through 49-G. 10 50-A through 50-F. 11 51-A through 51-E. 12 52-A through 52-F. 13 53-A through 53-D. 14 54-A through 54-D. 15 And skipping down to 54-I. 16 55-A through 55-C. 17 56-A. 18 57-A through 57-D. 19 58-A
through 59-D. 20 60-A through 60 G. 21 61-A. 22 62-A through 62-D. 23 63-A through 63-D. 24 MR. JENKS: Your Honor, I'm sorry, I'm lost. 25 Your Honor, if she could slow down.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2530 Springer-direct/Scott
1 THE COURT: Well, I'm trying hard but I can't 2 succeed. You have to slow down.
3 MR. JENKS: If she could just pick up from 60-A.
4 MR. TRABULUS: Actually 59.
5 MS. SCOTT: 59A through 59-D.
6 60-A through 60 G.
7 61-A.
8 62-A through 62-D.
9 63-A through 63-D. 10 65-B, C and-D. 11 And 66 C. 12 67-A through 67-D. And that's it. 13 BY MS. SCOTT: 14 Q Now, Ms. Springer, I'm showing you the documents 15 I've just read into the record for Identification. 16 Have you had a chance to look at those documents 17 before testifying tod
ay? 18 A Yes. 19 Q What are they? 20 A These are order forms, credit card numbers, 21 authorizations. Same as this (indicating.) 22 Q Are there packages of several pieces of paper? 23 A Yep. 24 Q And what does each package represent? 25 A (Perusing.) This is one member, this is another
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2531 Springer-direct/Scott
1 member. 2 THE COURT: No, you have to identify what each
3 package is.
4 THE WITNESS: Okay.
5 THE COURT: You have to name what it is.
6 THE WITNESS: Okay.
7 The order form. You need the names also?
8 THE COURT: No, on each package are there certain
9 forms? 10 THE WITNESS: Yes. 11 THE COURT: What forms are in each package? 12 THE WITNESS: The lead card, the order form and 13 this is an invoice with a credit card approval on it and
14 the information that is sent out to the customer. 15 MR. LEE: Judge, could we have her read the 16 exhibit number and letter while she is identifying 17 something. I don't know what exhibit she is talking 18 about. 19 THE COURT: No, it's not necessary. I'm not 20 going to go through all of these numbers. 21 MR. LEE: Just what she says. 22 THE COURT: No. 23 Does every package you've named include a lead 24 card, order form, invoice with credit card approval and 25 what else? What did you say?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2532 Springer-direct/Scott
1 THE WITNESS: Credit card authorization. 2 THE COURT: Credit card authorization.
3 So every one of those packages has a lead card,
4 order form, invoice?
5 MS. SCOTT: Generally, Your Honor, every package
6 includes an invoice, order form, lead card and
credit card
7 receipt. Some of the packages do not, but each -- I was
8 going to ask Ms. Springer, does each of these packets
9 represent a sale? 10 THE WITNESS: Yes. 11 BY MS. SCOTT: 12 Q Do each of these packets represent a sale of a 13 membership to a company? 14 A Yes. 15 Q By the company Who's Who Worldwide; is that correct? 16 A Yes. 17 Q Now, are all the supporting documentation that Who's 18 Who Worldwide had in connection with each of these sales, 19 attached to each of the documents that you have up there 20 in front of you? 21 A Yes. 22 Q Now, were these documents kept in the course of the 23 regularly conducted business activity of Who's Who 24 Worldwide? 25 A Yes, they were.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2533 Springer-direct/Scott
1 THE COURT: You have to slow down, M
s. Scott. 2 MS. SCOTT: Would you like me to repeat the
3 question, Your Honor?
4 THE COURT: Yes, I would. I'm requesting you,
5 especially for you, to slow down. I'm not making an
6 impression.
7 MS. SCOTT: Okay.
8 BY MS. SCOTT:
9 Q Were these documents kept in the course of the 10 regularly conducted business activity of Who's Who 11 Worldwide? 12 A Yes. 13 Q Was it the regular business practice of Who's Who 14 Worldwide to keep and make these records? 15 A Yes. 16 MS. SCOTT: I offer the exhibits that we just 17 read into the record, Your Honor. 18 THE COURT: Any objection? 19 MR. JENKS: I object and I would like a voir 20 dire. 21 THE COURT: Go ahead. 22 MR. JENKS: I would like the Exhibits 9-A through 23 9-D, I believe. I would use them for the purposes of this 24 voir dire. 25 THE COURT: Good
thinking. You are not going to
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2534 Springer-voir dire/Jenks
1 go through each one of them, will you, Mr. Jenks? 2 MR. JENKS: No, I don't want to be here until
3 June, Your Honor.
4 THE COURT: Good thinking. Very good.
5 VOIR DIRE EXAMINATION
6 BY MR. JENKS:
7 Q Let's talk, Ms. Springer, about 9-D for
8 Identification.
9 MR. JENKS: Do you have that, Ms. Scott? 10 MS. SCOTT: It's up there. 11 MR. JENKS: It's up there. 12 Let me make sure that I'm with the right 13 exhibit. Let's take a look at 9-D. 14 Do you have it in there? 15 THE WITNESS: That's 9-D? 16 MR. JENKS: Is that it? 17 THE WITNESS: Yes. 18 MR. JENKS: This is 9. They are out of the book. 19 THE WITNESS: Yes. 20 BY MR. JENKS: 21 Q Now, 9-D for Identification is a so-called "lead
22 card;" am I correct? 23 A It's not a so-called, it's a lead card. 24 Q It's called a lead card? 25 A This is called a lead card, yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2535 Springer-voir dire/Jenks
1 Q Let's first go over your testimony with respect to 2 that lead card.
3 The lead card was prepared by a publishing house?
4 A I don't know what the terminology is. I believe it
5 is called a mail house.
6 Q A mail house?
7 A Umm-hmm.
8 Q You didn't prepare the lead card, did you?
9 A No, I did not personally. 10 Q Somebody else did, correct? 11 A Umm-hmm. 12 Q Who's Who Worldwide did not prepare the lead card at 13 1983 Marcus Avenue, did they? 14 A I believe what they did they did a draft of it and 15 got a mail house to produce the letter and the card. 16 Q But none of those exhibits t
here are a draft of the 17 lead card, right? 18 A These cards and these letters are not manufactured at 19 1983 Marcus Avenue, if that is what you are trying to get 20 at. 21 Q So let me make sure I understand. First the lead 22 card. It's made someplace else, the lead card? 23 A Yes. 24 Q And then it's sent to a customer; am I right? 25 A Yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2536 Springer-voir dire/Jenks
1 Q You're in the office of public administration? 2 A I'm in the office of administration.
3 Q Not of public administration?
4 A Their terminology, Mr. Gordon's terminology, was,
5 right, what you said, public.
6 Q You testified at a deposition back in 1993; am I
7 correct?
8 A Yes.
9 Q Did you testify that you were a member of the office 10 of public administration? 11 A Yes.
12 Q Now, the lead card is prepared by an outside agency, 13 right? 14 A Yes. 15 Q And you didn't prepare it, correct? 16 A No. 17 Q You didn't draft the card; am I right? 18 A No, I did not draft it. 19 Q When it is prepared it is then sent by mail to a 20 proposed customer, I take it? 21 A Yes. 22 Q And that customer fills the information in on the 23 card, right? 24 A Yes. 25 Q You didn't fill the information in on the card?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2537 Springer-voir dire/Jenks
1 A No, I did not. No. 2 Q And that card comes back.
3 A Umm-hmm.
4 Q Right, to Who's Who Worldwide?
5 A Yes, it does.
6 Q And when that card comes back it is given to a
7 salesperson, right?
8 A They are sorted first and then they are bundled up
9 and then given, distribute
d to the salespeople, yes. 10 Q Do you sort them? 11 A On many occasions I sorted them. 12 Q You sorted them? 13 A Umm-hmm. 14 Q Do you give them to the salesperson? 15 A If I was asked to I would, but usually that would be 16 asked by Liz. Mr. Gordon would ask Liz to do that or if 17 Liz wasn't there I would pass them on to, let's say, Tara, 18 whoever it maybe, whoever the group leader was. But he 19 was there usually to give the cards out. 20 Q Did you have anything to do with the filling in the 21 information on the lead card? 22 A No. 23 Q Did you have anything to do with the preparing of the 24 lead card that goes to the customer? 25 A No.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2538 Springer-voir dire/Jenks
1 Q So when you get back this lead card, this is after it 2 has gone to a salesperson and it is
brought back to you,
3 correct?
4 A I saw the cards before. If I was asked to sort the
5 mail -- I seen a lot of them, yes.
6 Q Do you know whether any of the information on those
7 lead cards that Ms. Scott has shown you, all the exhibits
8 there, whether or not any of the information on those
9 cards is true and accurate or correct? 10 A On the cards? 11 Q Yes. 12 A I don't know these individuals to know if they are or 13 they are not. 14 Q And you never spoke to any of those individuals? 15 A I spoke to a lot of people. I never sold them a 16 membership, I never wrote up an order form. 17 Q Did you ever speak to any of those individuals on 18 those exhibits? 19 A In these? 20 Q Yes. 21 A I don't believe I spoke to a Rita Rieger or a Wilma 22 Pincham or Reid Rotatori. 23 THE COURT: Excuse me, what are those names you
24 just mentioned? 25 THE WITNESS: These names on the exhibits --
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2539 Springer-voir dire/Jenks
1 THE COURT: How do you spell them? 2 THE WITNESS: Rita R-i-e-g-e-r, W-i-l-m-a
3 P-i-n-c-h-a-m, R-e-i-d R-o-t-a-t-o-r-i.
4 And if I did speak with them I would have to be a
5 genus to remember these peoples' names. I speak to a lot
6 of people and did at Who's Who.
7 Q So it would be fair to say you never spoke to any of
8 them or you don't know whether you spoke to any of those
9 people in any of those exhibits? 10 A There is a possibility, but maybe I didn't. 11 Q And maybe not? 12 A Maybe not. 13 Q You don't know as you sit here whether the 14 information contained in those exhibits are, in fact, true 15 or accurate; am I correct? 16 A Right. 17 Q Because you don't
know firsthand, right? 18 A I don't know the people individually, so I wouldn't 19 know if the information they wrote down is true. 20 Q And the lead card that we've been talking about which 21 is 9-D, in front of you, you didn't prepare and you didn't 22 fill the information out on that car card, correct? 23 A No, you asked me that already, I said no. 24 Q I asked you again, your answer is no? 25 A Correct.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2540 Springer-voir dire/Jenks
1 Q Let's look at 9-C, okay. 2 A 9-C.
3 Q 9-C you testified was an order form; am I right?
4 A Yes (perusing.)
5 Q Do you know whose handwriting 9-C is in?
6 A Yes.
7 Q And how do you know that handwriting?
8 A Because first it says name, second, I know the
9 individual, and third, if any of those salespeople were to 10 write up an ord
er form, they wouldn't even have to sign 11 their name because I knew their handwriting. 12 MR. JENKS: I will move to strike the answer as 13 unresponsive, Your Honor. 14 THE COURT: Your motion is denied. 15 BY MR. JENKS: 16 Q Well, then I'll ask you this, Ms. Springer. Please 17 listen to the question and if it calls for a yes or no 18 answer, can you answer the question yes or no? 19 A Yes. 20 Q Do you know whose handwriting is in that form? 21 A Yes, I do. 22 Q Is it your handwriting; yes or no? 23 A Part is my handwriting, yes. 24 Q Is it your handwriting, yes or no, on the card? 25 A On the card, no.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2541 Springer-voir dire/Jenks
1 Q On the order form? 2 A Like I explained to you, yes. Some of the
3 information is in my handwriting. I said it to you.
4 Q
Which information is in your handwriting?
5 A Major product, acute care. This is my handwriting.
6 The red is in my handwriting.
7 Q The red writing on these things is in your
8 handwriting?
9 A Yes. 10 Q Is your handwriting on all of those exhibits you 11 examined, the orders forms? 12 A A lot of them, yes. 13 Q A lot of them. 14 A Most of them, yes. If it didn't have anything to 15 have altered on it, I wouldn't change it. 16 Q All right. 17 Let me ask you this, did you prepare the order 18 form itself? 19 A No. 20 Q The order form was sent to a potential customer; am I 21 correct? 22 A The order form was sent to a potential? No, the 23 order form was not sent to a potential customer. 24 Q The order form was prepared in Who's Who Worldwide? 25 A Yes, it was, umm-hmm.
OWEN M. WICKER, RPR OFFICIAL COURT R
EPORTER 2542 Springer-voir dire/Jenks
1 Q You didn't prepare them though, generally, a 2 salesperson prepared them?
3 A No, I did not prepare them.
4 Q Would it be fair to say that salespeople generally
5 prepared the order forms?
6 A Yes.
7 Q All right.
8 And the order forms were prepared on information
9 that they obtained through speaking with the customer on 10 the telephone, correct, generally? 11 A Umm-hmm. 12 Q You generally didn't speak with the customer on the 13 telephone to prepare the information in the order form, 14 correct? 15 A Right, but there were a lot of occasions where I did 16 speak with a customer because they didn't care for the way 17 that the salesperson had wrote up the information. 18 Q You spoke to them later, correct? 19 A Yes, later. 20 Q Did you draft and prepare this order form?
21 A No, I did not. 22 Q Were you in charge of keeping the order forms, you 23 specifically, or was it Liz Sautter? 24 Let me withdraw the question. 25 Did Liz Sautter head the Office of Public
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2543 Springer-voir dire/Jenks
1 Affairs? 2 A Yes, she did.
3 Q She was your boss, correct?
4 A Supervisor. I wouldn't say boss. Mr. Gordon was the
5 boss.
6 Q But she was your supervisor, right?
7 A Yes.
8 Q You reported directly to her?
9 A Umm-hmm. 10 THE COURT: Excuse me, you can't say umm-hmm. 11 A Yes. 12 THE COURT: Because we don't know what that 13 means. You have to say yes, no, maybe, I don't know, I 14 don't remember, but not that sound. 15 THE WITNESS: Got it? 16 A Yes. I reported to Liz. 17 Q So it was Liz Sautter who kept these ord
er forms at 18 Who's Who Worldwide. 19 Was she in charge of maintaining and keeping 20 them? 21 A No, I maintained them. 22 Q How about Liz Sautter? 23 A Occasionally if I was busy, she would count them to 24 make sure that the sales matched up with the sales sheet 25 and the actual orders written for that day were physically
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2544 Springer-voir dire/Jenks
1 counted. There were times she did. There were days also 2 that people get sick and have to take off a day and I'm
3 sure she did maintain it at some point, yes.
4 Q Let's talk about 9-B which is one of the invoices
5 that is in the package.
6 A Yes.
7 Q Four documents in the package, right? There are four
8 documents you've testified to generally or generally are
9 in each package. There's a lead card and an order form.
10 Those are the first two, we've discussed them? 11 A Yes. 12 Q And then there's an invoice which I ask you to take a 13 look at in 9-B. This is an invoice to a person by the 14 name of Rita Rieger, correct? 15 A Yes. 16 Q And did you prepare this invoice, Ms. Springer? 17 A Did I prepare it? 18 Q Yes. 19 A Did I actually print them out of a computer and have 20 them generated? 21 Q Right. 22 A Good possibility. 23 Q Did you do this one? 24 A I couldn't tell you. I did thousands of them a week, 25 how could you --
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2545 Springer-voir dire/Jenks
1 Q I'm asking you. Did you prepare this one? 2 A This one? I wouldn't be able to tell you if I
3 prepared this one or if I didn't prepare this one. This
4 is in 1993. Do you remember on this date what you were
5 wearing? I don't mean to seem nasty or anything, but this
6 is the kind of question you are asking me.
7 MR. JENKS: I'm going to ask that that be
8 stricken, Your Honor, and will you instruct the witness,
9 sir, to answer the questions as they are posed. 10 THE COURT: Motion granted. Ms. Springer -- 11 THE WITNESS: Let me say, he's asking me a 12 question -- 13 THE COURT: Ms. Springer, cease, stop. Listen to 14 me. You will listen to the questions and answer 15 responsively. Just what you are asked. That's all. 16 Do you understand that, Ms. Springer? 17 THE WITNESS: I understand. 18 THE COURT: Okay. 19 BY MR. JENKS: 20 Q Did you prepare this invoice, 9-B? 21 A I wouldn't be able to tell you if I prepared this 22 one. 23 Q Did you prepare any of them that are in that book? 24 A Yes -- well, you are saying in this book. I'm not
25 sure. I should have let you finish.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2546 Springer-voir dire/Jenks
1 Q In all the exhibits that Ms. Scott had shown you, did 2 you personally prepare any of those invoices?
3 A Yes.
4 Q You personally prepared them and sent them out?
5 A I wouldn't say -- if my handwriting is on these
6 forms, some of these forms. I wouldn't be able to tell
7 you if I did actually, you know, fold them, stuff them
8 with the literature and send them. I wouldn't be able to
9 tell you. 10 Q Is there any way of looking at this form 9-B which is 11 the invoice form to determine who prepared it, which 12 person prepared it and who sent it? Is there any code or 13 anything on it? 14 A (Perusing.) No. There's coding but that's just for 15 the purpose of who actually put the credit card number 16 through th
e terminal. That's the only coding that would 17 be on here. 18 Q So there's no way in looking at this invoice form to 19 determine who in the company actually prepared it and sent 20 it, correct? 21 A This form in particular? 22 Q Yes. That form in particular. 23 A Right, no. 24 Q Let's take a look at 9-A. That's a credit card 25 printout; am I correct?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2547 Springer-voir dire/Jenks
1 A Right, umm-hmm. 2 THE COURT: Yes? Excuse me.
3 THE WITNESS: Yes, sorry.
4 BY MR. JENKS:
5 Q Is that a credit card printout of a customer's credit
6 card?
7 A Yes, it is.
8 Q And there's an authorization number on that credit
9 card, correct? 10 A Yes. 11 Q And did you actually run the customer's credit card 12 and obtain the authorizations, or did someone els
e do 13 that? 14 A This one in particular? 15 Q First, 9-A. 16 A Yes. I put it through. 17 Q And how do you know you put it through? 18 A This is my handwriting (indicating) right here. 19 Q Right? 20 MR. SCHOER: What exhibit is she talking about? 21 THE COURT: Did somebody say something? 22 MR. SCHOER: I apologize. 23 What exhibit is she referring to when she says 24 "this is my handwriting"? 25 THE WITNESS: This is the invoice.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2548 Springer-voir dire/Jenks
1 MR. SCHOER: What exhibit is it? 2 THE WITNESS: 9-B.
3 MR. SCHOER: And when you say "this is my
4 handwriting," what are you pointing to?
5 THE WITNESS: The green, okay, this one. This
6 one is okay. 91-157.
7 BY MR. JENKS:
8 Q Would I be correct in saying that the only thing you
9 would write on one of these invoices would be an "okay" 10 with a docket number or a file number? 11 A There would be this and there would also be changes 12 to -- let's say the person who had entered this into the 13 computer had incorrectly spelled the name, I would make 14 the adjustment on there. 15 Q Okay. Take a look at the top. 16 When you say you would make the adjustment, would 17 you make it by hand or would you make it by computer 18 entry? 19 A I would make it by hand and I would distribute it to 20 the person who put the data incorrectly into the computer 21 system. 22 Q Whose initials are on 9-B at top, "CRH." Do you see 23 that? 24 A Yes. 25 Q Who is that?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2549 Springer-voir dire/Jenks
1 A This would have to be -- CRH? Oh, Rachel Hance. 2 Q And the
"C" stands for?
3 A I don't know, but her name was Rachel Hance.
4 Q What is the significance of Rachel Hance's initials
5 appearing on this invoice? Why would her initials be
6 there?
7 A I wouldn't be able to tell you.
8 Oh, wait, actually -- hold on one second.
9 Oh, I know why. It's right here (indicating.) 10 Q Okay. 11 A What this is, her signature is, she was in charge of 12 entering what we called the cash receipts. So once this 13 credit card was processed in the terminal, it had to be 14 marked "paid" and the credit card number was automatically 15 put in there by the person who was entering the order, in 16 this particular case, a Lenny Campbell, C-A-M-P-B-E-L-L, 17 was the individual who was the data entry person. 18 Q I'm not asking you 9-C, I'm asking you 9-B. 19 A Okay. 20 Q You know, you are saying your writing is on there, 2
1 but someone else's is too? 22 A She was the one who entered the cash receipt. She 23 was the one who marked it paid in the computer. 24 Q So she actually did then the credit card 25 authorization?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2550 Springer-voir dire/Jenks
1 A No, this is my handwriting. This is my check, my 2 check mark.
3 Q Let's take a look at Government's Exhibit 5-B.
4 All of the B's that we have here in this book.
5 These are the invoices; am I right?
6 A Umm-hmm. Yes.
7 Q The pink ones?
8 A Yes.
9 Q Pink means invoice? 10 A Yes. 11 Q So when they think of pink, we think of the Who's Who 12 invoice? 13 A Yes. 14 Q Whose initials are these here on the top? 15 A Jennifer, I don't remember her name. 16 Q Is this your handwriting on 5-B? 17 A Yes. 18 Q So you
r handwriting just says "okay" with some kind 19 of a docket number on them? 20 A That's the trend. 21 Q Most of them, correct? 22 A Yes. 23 Q Up on the top on each one of these there is someone 24 else's initials; am I right? 25 A Yes, that's correct.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2551 Springer-voir dire/Jenks
1 Q And the significance of all of these other peoples' 2 initials up on the top of these invoices is what again?
3 A Entering of the cash receipts.
4 Q So they actually entered it into the computer?
5 A They'll enter in that this is paid by credit card,
6 yes.
7 Q Let's look at the last exhibit there in that
8 collection which is 9-A.
9 That's the credit card receipt of the customer, 10 correct? 11 A Yep. Yes, it is. 12 Q None of those credit card receipts in those books are
13 actually signed by the customer; am I correct? 14 A Yes, they are not signed by the customer. 15 Q None of them are, right? 16 A None. 17 Q And there's no individuals' handwriting from Who's 18 Who Worldwide on any of those credit card receipts, is 19 there? 20 A No, there's not. 21 Q Your handwriting doesn't appear on any of those 22 credit card receipts, correct? 23 A Not on the receipt, no. 24 Q Those credit card receipts are not records which were 25 generated by Who's Who Worldwide, would that be correct?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2552 Springer-voir dire/Jenks
1 A They are generated through the Banco terminal that 2 was in Who's Who Worldwide.
3 Q But they are not Who's Who Worldwide documents; is
4 that correct?
5 In other words, they are not documents that were
6 produced by Who's
Who Worldwide, is that so?
7 A They were produced by NABANCO. This is a receipt.
8 Q By a machine?
9 A By a machine located in Who's Who. 10 Q When you say NABANCO, I don't understand? 11 A N-A-B-A-N-C-O. When you go in and make a purchase 12 with the credit card, the credit card would be swiped 13 through it, we would punch in the credit card number, 14 expiration date and press the enter and in return it would 15 give us either a decline, invalid number or an 16 authorization. And the authorization which is over here 17 would then be put on the order form with the "okay." Now, 18 if it was not okayed, if it was declined, it would have 19 "declined" on it or it would have "invalid credit card 20 number." 21 Q But those documents, the A documents in that series 22 that Ms. Scott had shown you -- 23 A Umm-hmm. 24 Q -- Are all of these credit card rece
ipts, right? 25 A Yes.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2553 Springer-voir dire/Jenks
1 Q And those are not Who's Who Worldwide documents. 2 They come out of this that NABANCO machine; am I right?
3 A Which is -- right --
4 Q Which was at Who's Who Worldwide, you said that?
5 A Right.
6 Q Right?
7 A Umm-hmm.
8 Q But they are not Who's Who Worldwide documents that
9 Who's Who Worldwide had generated; is that right? 10 A They were not generated by World Wide Who's Who but 11 by the employees of Who's Who, whoever was up there 12 processing the orders. 13 Q Did you ever work at Sterling Who's Who? 14 A No, I did not. 15 Q So you don't know anything about the operation of 16 Sterling Who's Who, do you? 17 A I saw the orders forms that came over. I knew some 18 of the people that worked there, but
I never went there. 19 Q So you had nothing to do with any of the documents 20 concerning Sterling Who's Who to customers; am I right? 21 A Yes, I did. 22 Q You did? 23 A Yes, I did. 24 Q And how was it that you had something to do with 25 those documents?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2554 Springer-voir dire/Jenks
1 A I did the same process as I did with the 1983 Marcus 2 Avenue. I did the same -- the process we did with the
3 orders, editing them, putting them through the terminal,
4 cash receipts, this was all done at 1983 Marcus Avenue and
5 I was in charge of counting the orders, making sure that
6 they matched up to the sales forms, making sure that the
7 information matched.
8 Q Did you ever work at Sterling Who's Who?
9 A No, I did not. 10 Q All right. 11 MR. JENKS: Your Honor, I have no f
urther voir 12 dire of these documents. 13 MR. LEE: I have a couple questions. 14 THE COURT: Go ahead. 15 MR. LEE: Thank you, Judge. 16 (Continued.) 17 18 19 20 21 22 23 24 25
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2555 Springer-voir dire/Lee
1 VOIR DIRE EXAMINATION 2 BY MR. LEE:
3 Q Ms. Springer.
4 A Yes.
5 Q I would like you to look at Government's Exhibit 9-C
6 for Identification, please.
7 A Okay.
8 Q And that is something that you identify by calling it
9 an order form, correct? 10 A Yes. 11 Q And that document contains information that a 12 salesperson, as far as you can tell, wrote down in that 13 document, correct? 14 A Yes. 15 Q However, am I correct that you stated that the 16 salesperson wo
uld not necessarily make out this document 17 at or near the time of this interview? 18 A There was times, yes, correct. 19 Q And there is no way that you can tell by looking at 20 any particular document that it was made anywhere near the 21 time of the interview by the salesperson, correct, you 22 can't tell? 23 A Unless -- 24 Q Is that true, yes or no? 25 In other words, you look at this document --
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2556 Springer-voir dire/Lee
1 well, let me back up a second. 2 Am I correct that a salesperson doesn't
3 necessarily make notations in this document at or near the
4 time that this interview was occurring?
5 A They do take notes. They did take notes.
6 Q But I'm talking about document 9-C in front of you.
7 A I'm not sure. Let me say I'm not sure --
8 Q I just want you to answer
the question. If you don't
9 understand, let me know. 10 A I do understand. 11 Q Let me ask it again, ma'am. 12 A Okay. 13 Q Just listen. 14 A Umm-hmm. 15 Q Look at document 9-C. 16 A Okay. 17 Q That's, as far as you can tell, contains notations 18 made by a salesperson about this qualifying interview they 19 do over the phone. Yes or no? 20 A Yes. 21 Q Is that true? 22 A Yes. 23 Q But you also state based on your experience sometimes 24 the entries made by the salesperson, they don't do it 25 right at the time that they are doing the interview or
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2557 Springer-voir dire/Lee
1 right afterwards; is that correct? 2 Just yes or no?
3 A That is true.
4 Q And looking at any particular document, just looking
5 at 9-C for example -- I'll ba
ck up.
6 That's true of all these order forms. There are
7 times that a salesperson may make it right or at the time
8 they do the interview but there are times they do it
9 afterwards and we don't know how long afterwards; is that 10 true? 11 A Yes. 12 MR. LEE: I have no further questions. 13 MR. TRABULUS: Your Honor, would it be possible 14 to take a brief break now? 15 THE COURT: Yes. Well, I was going to do that 16 anyway. 17 Members of the jury, we'll take a ten-minute 18 recess because I have to discuss some questions of law 19 with counsel. 20 Please don't discuss the case. Keep an open 21 mind. Please recess yourselves. It may be longer than 22 ten minutes. 23 (Jury exits.) 24 THE WITNESS: Am I permitted to leave? 25 MR. WHITE: Your Honor, do you want the witness
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER
2558 Springer-voir dire/Lee
1 to leave yet? 2 THE COURT: All right. You may step out of the
3 courtroom.
4 THE WITNESS: Thank you.
5 MR. TRABULUS: Your Honor, Mr. Gordon has to go
6 to the wash room very badly. Could we do that right now?
7 THE COURT: All right. We'll have to take a
8 five-minute recess.
9 MR. TRABULUS: It will just be a moment. 10 (Recess taken.) 11 THE COURT: Is everybody in now? Is anybody 12 missing? 13 MR. NELSON: Mr. Dunn is not here, Your Honor. 14 He's coming in. 15 THE COURT: All right. 16 Are there any objections to the introduction of 17 these records? 18 Have a seat, please. 19 MR. JENKS: Your Honor, I would object to the 20 introduction of the lead cards and the computer-generated 21 credit card invoices. I have no objection to the order 22 forms or to the invoices
through this particular witness. 23 With respect to the lead cards themselves, the 24 testimony was that the lead cards were prepared by a 25 third-party, an outside publishing company. They were
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2559 Springer-voir dire/Lee
1 mailed to the customers, and the customer in fact filled 2 out the information that is contained on the lead card.
3 So what is contained on the lead card is in fact hearsay.
4 I would submit that it is a business record which
5 incorporates a statement by a person who is not part of
6 the regular organized activity and has no business duty to
7 make that report.
8 If the record is offered to prove the truth of
9 what is in that lead card, such as "I'm a pharmacist, I'm 10 a doctor or I'm a lawyer" or what have you, it should be 11 treated as hearsay. I would respectfully submit to
you 12 that the appropriate person to introduce a lead card 13 through that lead card that is in every packet there is 14 the actual individual who filled out the information 15 contained on the lead card. I don't think you can offer 16 the contents of the document, whether it be a business 17 record or not, to prove the truth of what is contained in 18 the document. I mean, there are two separate ways. You 19 get the document in as a business record but in order to 20 prove the truth of the contents of the document that has 21 to be proved independently otherwise it is hearsay. You 22 can't circumvent the hearsay rule by a business record 23 exception allowing the document in. I would object to the 24 introduction of the lead card. 25 I would object to all of the lead cards that
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2560 Springer-voir dire/Lee
1 Ms. Scott had marked for Identification and had shown to 2 the witness.
3 I would also object to the introduction of -- I
4 think she said that NABANCO, NABANCO credit card receipts
5 that were generated from the terminal in Who's Who
6 Worldwide since they were not regularly kept business
7 records of the corporation. And I would make those two
8 objections.
9 With respect to the order form and the invoice, I 10 have no objection. 11 MR. SCHOER: Judge, with respect to, I hate to do 12 this, but with respect to some of these documents, there 13 are handwritten notes. For example, Exhibit 3-E -- I'm 14 sorry, Judge. 15 THE COURT: No, you go ahead. 16 MR. SCHOER: Exhibit 3-E has a note written 17 apparently by the customer on top of an invoice. I would 18 object to the introduction of those kinds of notes at this 19 point. 20 I
n addition, I know Ms. Scott went very quickly, 21 but it seems to me that -- I know she went very quickly 22 but it seems to me some of the things she offered in 23 evidence were more than the order form, the lead card and 24 the invoice and that slip. Some of the letters -- 25 THE COURT: What is the slip?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2561 Springer-voir dire/Lee
1 MR. SCHOER: The credit card slip. Some of the 2 letters, I believe, were solicitation letters. Some
3 apparently -- I believe some were solicitation letters.
4 THE COURT: Are you objecting to solicitation
5 letters?
6 MR. SCHOER: At this point, yes.
7 MR. WHITE: Which exhibit is the solicitation
8 letter?
9 MR. SCHOER: I'm saying, she went fast. 19-E. 10 MR. WHITE: That was the solicitation letter. 11 MR. SCHOER: And 44-F. 12 THE COURT: Why is t
he solicitation letter not a 13 business record, Mr. Schoer? 14 MR. SCHOER: Your Honor, there has been no 15 testimony about solicitation letters by this witness. 16 THE COURT: Assuming it was made in the regular 17 course of business. 18 MR. SCHOER: She didn't say that. 19 THE COURT: Assuming it is, assuming that she 20 says this. I will not go through this four times. I 21 don't know that she didn't say it, but assuming you are 22 right, assuming that this is the solicitation letter and I 23 have every reason she will say that, don't you, 24 Mr. Jenks? 25 MR. JENKS: I don't know. She said she would
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2562 Springer-voir dire/Lee
1 introduce the solicitation letter through a different 2 custodian, so I don't know.
3 THE COURT: So you are not offering this
4 solicitation letter, M
s. Scott?
5 MS. SCOTT: That's correct, Your Honor.
6 THE COURT: I thought she was.
7 MS. SCOTT: Your Honor, we intend to offer it
8 later in the case, just to clarify.
9 THE COURT: I understand. 10 What is objected to, as I understand it, is the 11 lead card because there are comments made by the 12 customers. Two, the credit card slips or receipts, and 13 three, handwritten notes on some of the documents. Is 14 that what is objected to? 15 MR. SCHOER: I think there are other documents. 16 Again, my note-keeping -- did you offer 54-I? 17 MR. TRABULUS: She offered that and also 54-E 18 which is a letter apparently from a customer. 19 MR. WHITE: 54-E is not offered. 20 MR. TRABULUS: Oh, it isn't. 21 MR. SCHOER: 54-I, I believe it was, and that is 22 a letter from Bank America. 23 THE COURT: What I suggest we do, I'll make 24 rulings i
n a generalized fashion and you can specifically 25 go through any of the items that you say are handwritten
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2563 Springer-voir dire/Lee
1 notes or something. It will be a long process. I don't 2 want to keep the jury waiting forever. So let's talk
3 about generically the law on these things. What is the
4 law on the admissibility of a lead card?
5 You are getting up. You are poised to say
6 something. Who will handle this, you or Ms. Scott, not
7 both?
8 MR. WHITE: I will handle the argument.
9 THE COURT: Why is it admissible the lead card 10 that is made up by the customer? 11 MR. WHITE: Because the Second Circuit law is 12 crystal clear that a document that is not produced by the 13 business but is incorporated into that business' records 14 and relied upon is therefore a business record of t
he 15 corporation. 16 THE COURT: Are you talking about the Jacobetz 17 case? 18 MR. WHITE: Yes, Your Honor, among others. 19 THE COURT: That was an opinion written by that 20 distinguished jurist whose portrait is on the wall here. 21 Did you know that, Mr. White? 22 MR. WHITE: In fact, I do, Your Honor, and as you 23 know that case involved a corporate custodian who 24 testified as part of a reimbursement voucher that was 25 submitted to his corporation by an executive, that
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2564 Springer-voir dire/Lee
1 executive included a receipt from the Triboro Bridge and 2 Tunnel Authority which was introduced as a business record
3 of that corporation.
4 THE COURT: You have to slow down, Mr. White.
5 You are going so fast that you are almost reaching
6 Ms. Scott's speed and she is strat
osphere. She has gone
7 beyond speed records. I can't keep up with it. I know
8 that my colleagues here, the defense lawyers are all right
9 with it, but I can't. I mean, I'm sure the jurors are 10 with you all the way. 11 MR. WHITE: I'll slow down. In the Jacobetz case 12 it was admitted as a business record even though the 13 receipt had been prepared by the Triboro Bridge and Tunnel 14 Authority and submitted by an executive and submitted as 15 his reimbursement voucher to the corporation because the 16 company incorporated into its records and relied upon it, 17 in fact, they paid out money to the executives based upon 18 the genuineness of that document. 19 THE COURT: Mr. White, are you equating Triboro 20 Bridge toll receipts with lead cards made by customers? 21 MR. WHITE: I am, because this is a business 22 record that is relied upon by Who's Who. They sent ou
t 23 the card to a customer, the customer returns it to them 24 with their return address on it. 25 THE COURT: No, you missed my point. We're
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2565 Springer-voir dire/Lee
1 talking about reliability, authenticity, trustworthiness, 2 that's what we are talking about, correct?
3 MR. WHITE: Correct.
4 THE COURT: The rule is the business rule record
5 should be admitted if it is trustworthy and it follows the
6 rule --
7 MR. WHITE: That's correct.
8 THE COURT: That's the basic foundation for this
9 rule, that something is done on a regular basis by a 10 company is authentic, is trustworthy. But you are not 11 equating a Triboro Bridge automated toll receipt which is 12 very instrumental in that case because it had the time 13 that this person went to the tolls. You are not equating
14 that document with something written out by a customer in 15 Sioux City, Iowa. 16 MR. WHITE: Actually I am. Let me explain why. 17 The Second Circuit case law isn't limited just to the 18 situation of Jacobetz of an automated toll receipt. 19 THE COURT: Show me. 20 MR. WHITE: There's the Saks case, 817 F.2d 1011. 21 THE COURT: I just got Saks. 22 MR. WHITE: Saks. 23 THE COURT: What is the citation which you went 24 through like lightening. 25 MR. WHITE: 817 F.2d 1011.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2566 Springer-voir dire/Lee
1 THE COURT: What does that say? 2 MR. WHITE: The relevance of that, it's a civil
3 case, it's a dispute over some shipping and cargo. A ship
4 loads up cargo in Africa, I believe, sales to the United
5 States. At a subsequent trial the chief.
6 Chief mate of the ship identifies as b
usiness
7 records the handwritten tallies made by the African dock
8 workers of what cargo they loaded onto a ship. And he
9 testified that his business, that was the custom and 10 practice in that industry to rely upon the dock workers 11 who were loading the cargo onto the dock even though they 12 didn't work for him, but he relied upon it in his 13 business. So, yeah, I'm equating the lead cards with 14 that. 15 THE COURT: Good case for you, Mr. White. I 16 didn't know that case. 17 MR. WHITE: I was up late finding it. 18 THE COURT: That's a very good case. What else 19 do you have? You must have stayed up very late to find 20 that one. 21 MR. WHITE: There is another case that follows 22 the same principle. I can't off the top of my head tell 23 you what the precise record involved was. 24 THE COURT: How about cases that were decided 25 a
fter Jacobetz?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2567 Springer-voir dire/Lee
1 MR. WHITE: I don't remember off the top of my 2 head what year that was decided.
3 THE COURT: 1992.
4 MR. WHITE: Your Honor, the ones I have --
5 THE COURT: That is the key case, there's no
6 question about it.
7 MR. WHITE: Right. There is an additional one as
8 I said, Your Honor, and I'm not sure, I would have to
9 review it again to figure out precisely what it is. 10 THE COURT: Do you have a copy of Saks? 11 MR. WHITE: Yes. 12 THE COURT: May I see it? 13 MR. WHITE: (Handing.) 14 THE COURT: Looks good. 15 MR. WHITE: Your Honor, may I make one other 16 point? 17 THE COURT: I mean, for you. 18 MR. WHITE: I know. It does look good. 19 THE COURT: It doesn't look good for Mr. Jenks at 20 all. 21 MR.
WHITE: You asked me if I was equating the 22 toll receipt with the lead card. I am in this case. Just 23 as the toll receipt was entered for the time that that 24 person crossed the bridge, the primary reason the 25 government is offering the lead card, is the mailing, the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2568 Springer-voir dire/Lee
1 time stamp, the date postal mark on each of those cards, 2 and I think it is certainly clear from all we know of the
3 mailing process that that's just as reliable as a time
4 stamp from a toll receipt from the Triboro Bridge.
5 THE COURT: I agree. So you don't want the
6 written part to go in?
7 MR. WHITE: I want the whole thing to go in.
8 THE COURT: I thought you said it is so
9 reliable. The written part isn't as reliable, right? 10 MR. WHITE: I agree, but I don't think it is any 11 less relia
ble than the African dock workers cargo tally. 12 THE COURT: Well, we'll have to go through all of 13 these records. How do you propose that? 14 Well, first of all, the objection is to the lead 15 card, the credit card slips. What about these credit card 16 slips? 17 MR. WHITE: Your Honor, I think the credit card 18 slips fall into the same category. If I understood 19 Ms. Springer's testimony, the Who's Who Worldwide, the 20 credit card merchant runs the card through the credit card 21 machine, it gives them the authorization and this is the 22 receipt that is provided to the merchant, that they keep 23 for their records. Again, it is something that the 24 business incorporates into its records and relies upon. 25 THE COURT: Okay. This is the ruling of the
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2569 Springer-voir dire/Lee
1 court on
this interesting evidentiary issue and I'm not 2 going through the various handwritten notes. We'll deal
3 with that or you'll have to deal with that on an
4 individual basis, but generally speaking with regard to
5 the lead cards and the credit card receipts. There being
6 no objection to the order cards --
7 MR. LEE: Just -- I do have an objection. I
8 apologize, I didn't have the opportunity to stand up to
9 catch your attention. 10 THE COURT: You object to what? 11 MR. LEE: I do have an objection. Other counsel, 12 I think Mr. Jenks, specifically stated he did not object 13 to what is called by Ms. Springer, the order forms, but I 14 have a very specific objection to that and I would like to 15 be heard on that. 16 THE COURT: Go ahead. 17 MR. LEE: I refer Your Honor's attention to 18 further Exhibit 9-C which is what I specifically asked 19 Ms.
Springer about. She identified that as an order 20 form. She testified both on direct and on cross that 21 these order forms are not necessarily created by the maker 22 at -- the salesperson at or near the time of what they 23 reflect which is this interview. She said she couldn't 24 tell how long afterwards they may have prepared it. I 25 think that's a fatal depiction that doesn't allow it to
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2570 Springer-voir dire/Lee
1 come in. 2 THE COURT: No, it's not because you didn't ask
3 her how long afterwards is the outside time they would
4 prepare it. I know you carefully avoided that which is
5 nice but I will get to that when she comes back.
6 MR. LEE: Well, Judge, okay. At that point I
7 thought at least it was comfortable that it could call for
8 conjecture and guesswork but it is also trustworthiness
.
9 And Mr. White finally was pushed, he tried to offer to the 10 Court the reason for his offering the lead card. I think 11 it need be asked or should be asked what he's offering 12 that order form for. Because if you look at it 13 specifically, Your Honor, I don't know what they are 14 offering it to prove but it has names of people, 15 salespeople on the upper right-hand corner. I don't know 16 what he's offering it for but it should be asked by the 17 Court, it should be his burden what he's offering it for 18 because it may compel Your Honor to give a limiting 19 instruction to the jury for what purpose it is being 20 offered for because it may contain something in there that 21 is inadmissible or at least prejudicial and may require 22 Your Honor either to redact it or to give a limiting 23 instruction as to what it is being offered for because it 24 can be off
ered for many reasons and he's not being 25 specific.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2571 Springer-voir dire/Lee
1 He just wants Your Honor to let it fly in, the 2 complete document. And on these order forms, Your Honor,
3 there is another element about it that I think undercuts
4 his trustworthiness.
5 Ms. Springer is testifying that notations are
6 made on these very documents subsequent to notations made
7 by the maker, the salesperson and there are changes, there
8 is editing occurring. We don't know the motivation for
9 the editing, it goes to the trustworthiness it has and it 10 is all coming in with handwritten changes. We don't know 11 exactly who is making it, when they are making it and why 12 they are making it. 13 I submit this document is unreliable and we need 14 at least some specific offer of proof from Mr. Wh
ite what 15 he thinks this proves. 16 THE COURT: Mr. Lee, I don't know how to answer 17 each one of your contentions because you've made a number 18 of them. I assume a document offered as an exception to 19 the hearsay rule is offered for the truth. That's what it 20 is offered for. And let's not dodge it. It is offered 21 for the truth. That's what it means. It's an exception 22 to the hearsay rule and as far as changes or notations or 23 alterations, that will have to be handled on a 24 document-by-document basis. If the changes and notations 25 are made in the regular course of business, they are going
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2572 Springer-voir dire/Lee
1 to go in evidence for the truth. 2 That's what they are offered for; is that
3 correct, Mr. White?
4 MR. WHITE: Yes, Your Honor. And if Mr. Lee
5 wants f
urther detail, he can cross-examine the witness
6 about certain events.
7 THE COURT: Well, before the documents go in, if
8 there are alterations and handwritten statements on them,
9 I will go over them if they can't be any agreement on a 10 document-by-document basis. I'm going over generically 11 the law with regard to the admissibility of these types of 12 documents. Now, each one may have problems that I'll have 13 to address but as far as whether it is at or about the 14 time of the transaction, Mr. Lee, I don't know because you 15 didn't question the witness sufficiently, or for your 16 purposes it was sufficient, but not for mine. We'll get 17 to that in due course lease. 18 MR. LEE: Just one further thing briefly. 19 Perhaps I used the wrong word or I should have 20 made it more clear. When I speak about what specific 21 purpose he's offering it for, I'm spea
king to relevance. 22 I'm not speaking to that it survives as far as the hearsay 23 rule is concerned. There has to be an offer of proof as 24 to its relevance. 25 THE COURT: Relevance of these cards?
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2573 Springer-voir dire/Lee
1 MR. LEE: No, specifically of this order form I'm 2 talking about. He has to make an offer of proof of
3 relevance, he can't say it is a business record and it
4 comes in. The Court has to inquire what he's offering it
5 to prove, what its relevance is and that may give rise to
6 other evidentiary objections.
7 If he's offering it specifically, for example,
8 for an admission or deletion as a salesperson, there may
9 be a problem with that and that may require some sort of 10 limiting instruction from Your Honor. My point is 11 relevance has to be stated to Your Honor a
bout what these 12 documents are offered to prove. 13 THE COURT: Reading the indictment I think it 14 would be relevant, but when you say it may be an 15 admission, I didn't even get into that yet. 16 There's another, as you say, there's another very 17 important reason why some of this will go in and they are 18 admissions by the defendants. However, I'm going to do it 19 one step at a time. 20 At this point we have an objection to the 21 business record rule because the lead cards and the credit 22 card receipts are hearsay, according to Mr. Jenks, 23 Mr. Schoer and I guess all the rest of the defendants' 24 lawyers. 25 MR. NELSON: Your Honor, if I might be heard for
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2574 Springer-voir dire/Lee
1 a moment. I have a specific objection on a generic basis 2 to the order forms, to a speci
fic portion of the order
3 forms. It relates to the portion of the order forms which
4 flow from ship to, which in the middle of the document
5 until the portion which is, which starts with lifetime
6 membership and lists what the actual amount and cost is.
7 It appears, Your Honor, that the information
8 contained here on the testimony of Ms. Springer is
9 information which is acquired from the applicant during 10 the course of an interview. This is hearsay. This is 11 specific intimation that is being imparted to the person 12 preparing the document by a third-party. 13 I would submit, Your Honor, it is analogous, for 14 example, in a robbery case where there is a complaint that 15 is prepared by the police department, the narrative 16 portion of that is hearsay and not admissible, while the 17 document itself is prepared in the recourse of business. 18 The portions
that are provided by the victim of the 19 offense itself are hearsay on top of hearsay and there 20 would have to be a separate exception to the hearsay rule 21 to allow that portion of document to be admitted. 22 So my objection specifically is to that 23 biographical portion of the generic document itself, that 24 that portion should not be admissible. It doesn't pass 25 the reliable prong of the business record exception
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2575 Springer-voir dire/Lee
1 because it is provided by an outside person to the maker 2 of the document.
3 MR. JENKS: Your Honor, that's the same objection
4 I made to the content of what is contained in the lead
5 card and why if they are offering the lead card for the
6 truth, why I would object. That's basically the same
7 identical reason.
8 THE COURT: It's good you rei
nforced it. I
9 thought that was so, Mr. Jenks. Thanks for corroborating 10 that. It is the same objection and it was met by 11 Mr. White with the Saks case, 817 F.2d 1011. It was met 12 with -- 13 MR. NELSON: That would be Jacobetz, Your Honor, 14 I believe. 15 THE COURT: I'm trying to see what I did with it, 16 which is interesting. 17 MR. NELSON: Your Honor, while I have the Court's 18 attention -- 19 THE COURT: Well, you didn't let me finish the 20 Jakobetz case, 955 F.2d, 786 (2d Cir. 1992.) 21 Yes. 22 MR. NELSON: Thank you, Your Honor. While I've 23 not had the opportunity to read Saks and I've read 24 Jakobetz in the past, I would submit to the Court both of 25 those cases are clearly distinguishable and they are
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2576 Springer-voir dire/Lee
1 clearly distinguish
able because the Court of Appeals in 2 both of those cases looked to the independent reliability
3 of the information that was being relied upon by the
4 person who was the maker of the document or who was
5 utilizing the document.
6 While I've only heard the factual recitation
7 provided by the government with respect to Saks, in
8 essence what the government is saying is that they were
9 relying upon a business record prepared by dock workers in 10 Africa at that time which would have some independent 11 reliability in and of itself. This is a form being 12 prepared by people who are in essence preparing packing 13 slips that are being loaded onto a ship. Those documents 14 have independent reliability. There's a reason why the 15 person who is the porter or the dock worker or his foreman 16 is supervising what is taking place and there is an 17 independent basis fo
r reliability for the preparation of 18 the document upon which it is later relied upon by third 19 parties. 20 I would submit to the Court that is the 21 distinguishing feature in each of these cases, that there 22 is some form of independent reliability that the Court of 23 Appeals looked to in the document that was relied upon. I 24 would submit here as it relates to the lead card there is 25 no independent reliability other than the fact that some
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2577 Springer-voir dire/Lee
1 individual sent a lead card in. We don't know who the 2 person is, what the person is, what the person had to send
3 in, what basis the person had to send it in.
4 Thank you, Your Honor.
5 THE COURT: It's an interesting question and it
6 is not open and should I dare say and it would be very
7 interesting to see how it
comes out. I like these
8 evidentiary problems. I'll make a ruling but first I want
9 to go into the jury and apologize to them for keeping them 10 waiting, tell them there will be another 15 or 20 11 minutes. 12 Any objection? 13 MR. WHITE: No, Your Honor. 14 (Recess taken.) 15 (In the jury room.) 16 THE COURT: I want to apologize to all of you for 17 keeping you waiting, especially since you got here three 18 minutes before 9:30 in the morning, but I have to go over 19 some issues of law and it will be another 15 or 20 20 minutes. So I'm sorry. I know you are in close quarters 21 here and it could be a larger room and you are very 22 patient or impatient, I don't know what to say, but I'm 23 sorry about that. 24 We'll get to you as soon as we can. 25 (In open court.)
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2578 Springer-voir dire/Lee
1 THE COURT: All right. Let's take a look at the 2 first evidentiary rule, 803(6), which says the following
3 are not excluded by the hearsay rule even though the
4 declarant is available as a witness. Subdivision (6),
5 records of regularly conducted activity. A memorandum,
6 report, record or data compilation, in any form of acts,
7 events, conditions, opinions or diagnoses, made at or near
8 the time by or from information transmitted by a person
9 with knowledge, if kept in the course of a regularly 10 conducted business activity and if it was the regular 11 practice of that business activity to make the memorandum, 12 report, record, etcetera, all as shown by the testimony of 13 the custodian or other qualified witness, unless the 14 source of information or the method or circumstances of 15 preparation indicate lack of trustworthiness."
16 In United States v. Strother, which I have the 17 slip opinion, I don't have the citation, but under your 18 modern method you can get that in about eight seconds, I 19 suppose, it was decided by the Second Circuit on March 1, 20 1995 and it says this. Talking about the business record 21 rule. 22 "This Court has adopted a generous view of the 23 business records exception construing it to favor the 24 admission of evidence if it has any probative value at 25 all."
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2579 Springer-voir dire/Lee
1 United States v. Froiden, 849 F.2d, 716 at 722, 2 (2d Cir. 1988), citations omitted.
3 Although the principle precondition to
4 admissibility is the sufficient trustworthiness of the
5 record -- and here they give your case, Saks v. MV Export
6 Champion 817 F.2d 1011, (2d Cir. 1987). The proffered
7 record must meet all the requirements of the exception.
8 The determination of whether a record is
9 sufficiently reliable to warrant its admission is within 10 the sound discretion of the district court, citations 11 omitted. 12 In a New York case which is not really binding 13 but is interesting, People v. Guidice, 83 N.Y.2d 630, a 14 line sheet, a record made by a person monitoring an 15 electronic transmission, in this case a telephone 16 conversation, it includes an identification of the tape on 17 which the recording is made, the date of each call, 18 etcetera. 19 The Court of Appeals holds, this is New York 20 Court of Appeals, holds that such line sheets maintained 21 in this instance may be admitted in evidence as business 22 records. Interesting. 23 We know also that invoices received and held by 24 one company and prepared and sent by a
nother company are 25 admissible as business records.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2580 Springer-voir dire/Lee
1 United States v. Ullrich, 580 F.2d 765, (5th Cir. 2 1978), where a car dealer made a manufacturer's statement
3 part of the dealer's records. So in this case the fact
4 that someone else sent out some material would not prevent
5 it from being a business record of Who's Who Worldwide.
6 Also, it has been held that invoices that a
7 construction company received from businesses that
8 supplied materials and services for work performed are
9 admissible as business records of the company that 10 received the invoices. United States v. Fleniod, 780 F.2d 11 867, (8th Cir. 1983). And of course a custodian or 12 qualified witness to identify the records need not be the 13 person who made the records, need not be the person
14 whoever saw the records, need not be the person in the 15 same company as made the records, as long as that person 16 says "I recognize that these are records made in the 17 regular course of business," that's sufficient. 18 In addition, I don't know -- are these records -- 19 where did you get these records from, Mr. White? 20 MR. WHITE: These were records that were turned 21 over to the U.S. Attorney's Office by the trustee, the 22 bankruptcy trustee that was appointed to run or to 23 liquidate Who's Who Worldwide. 24 THE COURT: An interesting evidentiary point 25 because one who produces voluntarily documents and
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1 implicitly represents them to be business records cannot 2 be heard to contend that they are not business records.
3 That I don't think is very determinat
ive in this
4 case but that is another interesting rule of law which is
5 set forth in United States v. Lawrence, 934 F.2d 868, (7th
6 Cir. 1991). And as I stated before the custodian or the
7 other qualified witness who testifies about the business
8 record need not personally participate in the creation or
9 maintenance of the document nor even know who recorded the 10 information. That's United States v. Muhammad, 928 F.2d 11 1461, (7th Cir. 1951). 12 Again, the Second Circuit on July 12, 1995, and I 13 haven't got the citation, in the case of Phoenix 14 Associates v. Stone said, Rule 803(6) favors the admission 15 of evidence rather than its exclusion if it has any 16 probative value at all, and the principle precondition to 17 admissibility is that the record has sufficient indicia of 18 trustworthiness to be considered reliable. And this 19 indicia of reliabilit
y or trustworthiness is done when 20 there is repeated events, repeated regular, similar, 21 daily, weekly, monthly events rather than unusual or 22 isolated events which would take away from the 23 reliability. "We further reject --" this is from the same 24 case, Phoenix Associates, "we further reject Stone's 25 argument that -- let's use the name, Ambrosini's failure
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1 to identify the specific employee responsible for filling 2 out the record proved fatal to its foundation." They
3 reject that. The custodian need not have personal
4 knowledge of the actual creation of the document, nor is
5 there any requirement under Rule 803(6) that the records
6 be prepared by the party who has custody of the documents
7 and seeks to introduce them into evidence, rather all that
8 is req
uired is proof that it was the business entities
9 regular practice to get information from the person who 10 created the document, citing Saks again, Mr. White. How 11 did I miss that case? 12 MR. WHITE: Your Honor, I have the cite for 13 Phoenix Associates, if you want it. 14 THE COURT: And in Raphaely International v. 15 Waterman Steamship Corp., decided by the Second Circuit 16 August 14, 1992. They say likewise it is irrelevant that 17 the foundation for this evidence was laid by an employee 18 of SGS rather than an employee of Gezira. 19 In an excellent article on evidence by a 20 distinguished professor, Michael Martin, who I think is at 21 Fordham Law School, I'm not sure, he commented on this 22 practice of allowing into evidence business records, parts 23 of which were supplied by other entities and other persons 24 which we have here. 25 "Although
each of the foundation requirements in
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1 the Federal Rules provides circumstantial assurances of 2 reliability, the courts have not always insisted that
3 every requirement be satisfied, rather if the records seem
4 to be trustworthy, it has sometimes been admitted even if
5 it was not made by the business whose record it was, or if
6 it was not kept by the business. And sometimes the Courts
7 focus on a record's apparent trustworthiness has lead to
8 sliding over double hearsay problems resulting from the
9 observer with personal knowledge, not being a regular 10 participant in the business-making and keeping of the 11 records. And they cited certain cases in which this was 12 done. 13 I don't believe in sliding over double hearsay, 14 however. I don't agree with that, but we
come down to the 15 case that surprised me when it came down and that's the 16 seminal case of United States v. Jakobetz, 955 F.2d 786. 17 In Jakobetz, the district court allowed the 18 government to admit into evidence a toll receipt for the 19 Throgs Neck Bridge stamped June 14, 1989, 3:20 p.m., $10. 20 The receipt was part of a trip cost report that the 21 defendant submitted to his employer to obtain 22 reimbursement for his expenses. The government submitted 23 the toll receipt as part of the employer's business 24 records. However, the receipt was a record made by the 25 Throgs Neck Bridge system and not by the employer, a firm
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1 named Wildcat. 2 For some reason the government never put on the
3 stand anybody from the Triboro Bridge Authority, which I
4 imagine
they could easily have done, however, it was not
5 done. And on appeal the defendant contended that this
6 toll receipt had to be authenticated by a person with
7 knowledge of the Throgs Neck Bridge records system.
8 He argued that since Wildcat, his employer,
9 simply had possession of but did not prepare the record. 10 Testimony by the custodian of Wildcat's records was 11 insufficient. Stated simply, Wildcat didn't make or 12 prepare the record. This argument was rejected by the 13 circuit court. Inside quote, 'we do not read into the 14 business record exception so narrowly --' withdrawn. "We 15 do not read the business record exception so narrowly. 16 Rule 803(6) allows business records to be admitted 'if 17 witnesses testify that the records are integrated into a 18 company's records and relied upon in its day-to-day 19 operations.'" Matter of Ollag, 665 F.2d 43, (2d Ci
r. 20 1981). Even if the document is originally created by 21 another entity, in our case the customer, it's creator, 22 the customer, need not testify when the document has been 23 incorporated into the business records of the testifying 24 entity. See United States v. Carranco, 551 F.2d 1197, 25 (10th Cir. 1997).
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2585 Springer-voir dire/Lee
1 In this case Wildcat incorporated the toll 2 receipts into its business records to a sufficient degree
3 to permit an inference as to the receipt's authenticity.
4 The Wildcat witness testified that toll receipts were
5 regularly submitted by drivers as part of their trip
6 reports and regularly incorporated into the business
7 records for general accounting purposes.
8 Here's where the government's real problem comes
9 into the case and the Court, Judge
Pratt (indicating) 10 continued by saying "in addition, a toll receipt is not 11 the type of evidence that is so susceptible to fabrication 12 that authentication by a representative of the Throgs Neck 13 Bridge should be required. Jakobetz himself relied on its 14 authenticity when he submitted the receipt for 15 reimbursement of his expenses. He must have believed that 16 the date, time and amount stamped on the receipt fairly 17 represented a part of his trip for which he sought to be 18 reimbursed. Thus, the trial court did not abuse its 19 discretion by allowing the receipt into evidence." 20 I might say here while we don't have a toll 21 receipt which is much more authentic on its face than 22 these notes, we have a whole plan, system of operation. 23 As a result of these notes many things occurred. People 24 acted on these notes. They are not notes in an 25 iso
lation. The notes triggered a whole process by which
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1 this customer became a member of the organization and 2 other reports followed, other records were sent. So there
3 is some authentication for the fact that this customer
4 wrote out what the customer wrote on the card.
5 Moreover, this case demonstrates the tendency to
6 favor admissibility in the federal court, if relevant and
7 probative and reliable.
8 Accordingly, it is the opinion of the Court that
9 the order card is admissible, and I'm not going into the 10 particular details of each card if there may be problems 11 with each particular exhibit, the invoices are admissible, 12 the lead cards are admissible, the credit card receipts 13 are admissible. 14 Now, we didn't get to the solicitation letters. 15 Th
e only -- which was the one, Mr. Lee, that you said 16 wasn't done at the time? 17 MR. LEE: Well, I asked -- Exhibit 9-C. 18 THE COURT: What kind of records? 19 MR. LEE: What she called an order form. 20 THE COURT: Before we let those in, I want to 21 find out when they were made out. If they were made out 22 within a reasonable time that would be enough in my view, 23 Mr. Lee. They don't have to be made on the minute, but we 24 can find that out. So that's my ruling generically on 25 these exhibits.
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2587 Springer-voir dire/Lee
1 How you will work it out on an individual basis, 2 I think we'll have to do it after court or something.
3 You'll have to do it with the defendants' lawyers.
4 MR. WHITE: Your Honor, I'm sure we can work that
5 out. It sounds like Your Honor's ruling is resolving the
6 issue with respect to probably 90 percent of them.
7 Maybe we can do that at lunchtime.
8 THE COURT: Don't you people eat lunch at all?
9 MR. WHITE: Well, yes, but we'll try to do it. 10 THE COURT: You don't have to reveal it. That's 11 a confidential communication which you don't have to 12 reveal. 13 MR. WHITE: I just want to make sure this is how 14 I would propose to continue. We would continue with 15 Ms. Springer's direct testimony because she is testifying 16 about other matters in addition to this, to lay the 17 foundation for these bids records. 18 She will be here until lunchtime, until 12:30. A 19 member of her family, though, has had surgery this morning 20 and she needed this afternoon to go pick them up. So I 21 guess what we propose with the Court's permission if we 22 can excuse her again and we have other witnesses to put 23 on, she
will be back this afternoon and insert her back 24 and continue with her testimony and hopefully in the 25 meantime we can resolve a few outstanding business records
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2588 Springer-voir dire/Lee
1 issues. 2 THE COURT: We have great flexibility in the
3 federal court. Did you know that? That's what they told
4 me when I got here, as opposed to the state court. I
5 really haven't seen much difference, but that's what they
6 told me.
7 MR. SCHOER: Judge, my question is, is Your
8 Honor's ruling that these documents are admissible based
9 -- are they admissible against all the defendants? Has 10 Your Honor made a determination that the government has 11 established a conspiracy and that these are -- these 12 documents are in furtherance of the conspiracy, or are you 13 admitting these documents as ad
missions of certain 14 defendants or as admissions of the corporation, and are 15 you excluding the documents that weren't prepared by any 16 of the defendants? 17 THE COURT: Which question would you like me to 18 answer first? 19 MR. SCHOER: Maybe the first one. 20 THE COURT: I forget about the first two, maybe 21 the third. 22 MR. SCHOER: As to whether or not Your Honor has 23 found that Your Honor has established a conspiracy. 24 THE COURT: I haven't found that. 25 MR. SCHOER: So therefore --
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2589 Springer-voir dire/Lee
1 THE COURT: There's been no testimony that I 2 could find or make such a finding.
3 MR. SCHOER: And I agree with Your Honor. So
4 therefore these documents, particularly the order forms
5 I'm talking about now, are they being offered against all
6 o
f the defendants or are they being offered only against
7 the defendants whose names appear on them?
8 THE COURT: At this point they will be offered
9 against the corporation and the defendant whose name is on 10 them. At this point that is. If you want me to explain 11 that to the jury, I will. 12 MR. SCHOER: May we confer about that, Judge? 13 THE COURT: Sure. 14 (Counsel confer.). 15 MR. NEVILLE: Your Honor -- 16 THE COURT: Just one minute. 17 (Pause in proceedings.) 18 THE COURT: Yes, who wanted to the speak to me? 19 Mr. Neville? 20 MR. NEVILLE: Yes, Your Honor. May we continue 21 to voir dire this witness outside the presence of the jury 22 in terms of the reliability? We'd like to get into some 23 of the names and things. 24 THE COURT: Outside the presence of the jury? 25 MR. NEVILLE: Yes.
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AL COURT REPORTER 2590 Springer-voir dire/Lee
1 THE COURT: Why outside the presence? 2 MR. NEVILLE: Because it could be potentially
3 prejudicial to my client, Scott Michaelson and other
4 people at trial if we were to go through some of the line
5 of questioning with the witness in the presence of the
6 jury. We're merely trying to establish or determine an
7 evidentiary question that the Court or the Judge will rule
8 on and then the jury can hear the testimony.
9 THE COURT: Are you putting in these documents 10 that Mr. Neville is talking about at this point? I don't 11 know what he's talking about. 12 MR. NEVILLE: The order form. The documents 13 we've been talking about all morning. 14 MR. WHITE: Yes, then we are putting them in. 15 MR. NEVILLE: For goodness sake. 16 THE COURT: You are making an objection to the 17 order form.
18 MR. NEVILLE: Not other than the objections 19 already made. Respectfully if we could question the 20 witness outside the presence of the jury in terms of these 21 evidentiary questions. 22 MR. GEDULDIG: One of your rulings, Judge, 23 pertains most specifically to salespeople. I think the 24 documents would be coming in against the corporations and 25 the individual defendants named on the forms or the
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1 package of paper. 2 On the order forms generally or very often appear
3 the names of a salesperson and I believe what the
4 government is going to argue and I believe what
5 Ms. Springer might say is that taking the name off that
6 order form is the way the company knew who made the sale
7 and gave credit for commissions for that person. So if
8 the document now i
s coming in in part to attribute what
9 the government would characterize as a misrepresentation 10 in a sale to one of these defendants, what we're saying -- 11 THE COURT: Sale to one of these defendants? 12 MR. GEDULDIG: I'm sorry, a sale by one of these 13 defendants, we really didn't have an opportunity to 14 question Ms. Springer regarding the names of the 15 salespeople that appears on these order forms. And I 16 think, I'm not trying to speak for Mr. Neville -- 17 MR. NEVILLE: You are doing it much better than I 18 am. 19 MR. GEDULDIG: What he was alluding to, 20 Mr. Neville, Mr. Lee, myself and Mr. White, we're the 21 defendants, we represent the defendants whose names will 22 most likely appear on the order forms. I don't think it 23 will be an extensive continuing voir dire but we are 24 asking to ask Ms. Springer some questions regarding the 25 nam
es of the salespeople that are here on the order form.
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1 MR. LEE: If I may add. In other words, there's 2 a name identifying the name of the maker on these order
3 forms. That may not necessarily be the name of the person
4 who made out the documents because we understand we have a
5 good-faith basis to believe different names were injected
6 in that identification spot for different reasons, so
7 therefore if we can question this witness and it reveals
8 to Your Honor that there's total unreliability as to that
9 notation, identifying the maker, then Your Honor may not 10 admit it at all because it is total unreliable. It may 11 not be the true maker, someone just injected that name in 12 and I think Ms. Springer should shed some light on that. 13 THE COURT: The only issue I'm raising
is should 14 it be in the absence of the jury? 15 MR. NELSON: While my client is not named on any 16 of these documents, Your Honor, I believe the separate 17 issue which might well need to be resolved outside the 18 presence of the jury and is one which will come up during 19 the course of the testimony of the various customers from 20 which the government is trying to lay a foundation by 21 using the order form, is going to be an issue pursuant to 22 801(d)(2)(e) and that will be whether or not the 23 government has proven by a preponderance of the evidence, 24 one, the existence of a conspiracy, and two, more 25 significantly as it relates to these documents, whether
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1 the person against whom the document or statement that the 2 customer might make is introduced, was a mem
ber of the
3 conspiracy at the time that that statement was made.
4 Pursuant to Bourgaily v. The United States and
5 pursuant to 801(d)(2)(e), the Court must make a
6 preliminary determination by a preponderance of the
7 evidence under Federal Rules of Evidence 104(a) to
8 determine one, whether or not a conspiracy existed, and,
9 two, whether or not the person against whom the statement 10 was made was a member of the conspiracy at the time. 11 I believe what the government is attempting to do 12 at this point without putting words in their mouth is to 13 utilize the order forms which identify the names of 14 individuals as a predicate for the purpose of when the 15 individual customer testifies to elicit the conversation 16 that took place between that customer and the salesperson 17 as was taking place yesterday when the objection was 18 raised at an appropriate po
int in time by Mr. Lee. And 19 that would be the reason why the hearing would have to be 20 conducted outside the presence of the jury so the Court 21 can make that preliminary determination under 104. 22 MR. WHITE: Your Honor, at this point I thought 23 we decided we are not offering them as co-conspirator 24 statements. They are either corporate -- they are at a 25 minimum corporate admissions. I think Your Honor could
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1 admit them subject to connection as co-conspirator 2 statements, but at this point since there is another basis
3 there is no reason to do that.
4 MR. NELSON: Your Honor, if I might. It's not
5 the question of the admissibility of these documents, it's
6 the question of what will occur next when these various
7 witnesses testify or attempt to testify with re
spect to
8 conversations between various defendants. And I believe
9 that it would be the appropriate time now since this is 10 the witness who the government is proffering as the 11 records custodian who has knowledge of the manner in which 12 the documents were prepared for the Court to be able to 13 make a factual determination as to whether or not the 14 individual named on the document was in fact the person 15 who participated in that conversation. 16 It goes to the question of reliability and I 17 believe co-counsel are going to question the witness 18 concerning her knowledge of procedures that were followed 19 concerning the preparation of this document and whose name 20 might be included on it. 21 MR. WHITE: Your Honor, if I could just address 22 this. What Mr. Nelson is talking about is the same issue 23 we addressed yesterday morning, namely after Ms. Spri
nger 24 is finished and these documents are in, can we have a 25 customer come in and say, as Ms. Rieger started to
OWEN M. WICKER, RPR OFFICIAL COURT REPORTER 2595 Springer-voir dire/Lee
1 yesterday "I don't know the name of the person I spoke to 2 but they called me up, identified themselves as from Who's
3 Who Worldwide, sold me a membership. I gave them my
4 credit card, I got a plaque in the name and I got an
5 invoice confirming the sale." I also researched that
6 overnight. That at a minimum is a corporate admission,
7 even if these documents were not put in by Ms. Springer.
8 The corporate employee doesn't have to be identified I
9 said at the bench. 10 I found another Second Circuit case directly on 11 point. An employee, a statement of an employee is 12 admitted even though they can't -- the plaintiff in the 13 case can't even i
dentify who it is. It is Pappas v. 14 Middle Earth Condominium, 963 F.2d 534 (2d Cir. 1990). 15 Your Honor, it's a very simple case, it's a slip 16 and fall case. The plaintiff sues the Vermont condominium 17 where he's staying because he slipped on the ice. Someone 18 from his family or his party picks up the phone, calls the 19 number for the owner of the condominium and says there is 20 an icy sidewalk. Shortly therefore some guy completely 21 unidentified shows up with a shovel and a bucket of salt 22 and he makes damaging admissions against the condominium, 23 namely something to the effect of, yeah, we've had a 24 problem with the area icing up before, thus putting the 25 condominium on notice.
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1 The plaintiffs wanted to offer that and they 2 weren't permitted to, but th
e Second Circuit said they
3 should and it says specifically that the manufacture, the
4 proponent of the corporate admission didn't have to
5 identify the employee by name. And it said that liberal
6 treatment should be accorded, offers of proof as corporate
7 admissions, and it specifically says that all the facts
8 and circumstances should be taken into account in
9 determining whether or not that is a corporate admission, 10 whether or not you could presume the agency relationship. 11 And just like that, after the call to the condominium 12 owner, a guy shows up with a bucket of salt and a shovel 13 to clear up the icy patch, it's the same thing here. That 14 Who's Who confirms the sale when each of these employees 15 -- I'm sorry, when each of these customers gives them 16 their credit card number they get a plaque in the mail and 17 get an invoice. If that salesperson --
I'm sorry, the 18 Who's Who employee was not authorized to do that 19 presumably, Who's Who wouldn't be sending the customer an 20 invoice confirming the sale. 21 MR. GEDULDIG: The one big difference there the 22 person who comes in with the bucket of sand and a shovel, 23 nothing happened with him, he wasn't charged with 24 anything, he's not a named defendant. We're the bucket of 25 sand and the shovel, we are named defendant. When we are
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1 saying oh, yeah, this icy patch is being here a while. 2 They are charging us with being responsible for the
3 information. So the case he cites is different from the
4 situation that our defendants as salespeople face.
5 THE COURT: Well, this is all well and good. The
6 point I'm trying to make is why this has to be done. I'm
7
certainly going to allow a voir dire, all the voir dire
8 you want. The question is should it be done in the
9 absence of the jury or with the jury present, that's the 10 point. 11 MR. NEVILLE: I can address that, Your Honor, the 12 government is clearly, and if I were in Mr. White's shoes 13 I would do the same thing, he's clearly offering this 14 order form in our case. The first one that was being 15 shown to the witness happens to have Scott Michaelson's 16 name on it. Thus, my avid interest in this issue. The 17 government is clearly looking to admit this in evidence as 18 a business record and also attribute to Scott Michaelson 19 misrepresentations to Rita Rieger who will testify a 20 little bit later today. 21 I take Mr. Nelson's points well on the 22 conspiracy, but we also have substantive counts here on 23 the case. There is a substantive count as to Scott
24 Michaelson making misrepresentations, mail fraud, wire 25 fraud, and we have good faith belief that these order
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1 forms at times were filled out by a person who did not 2 necessarily speak to the perspective customer. There were
3 quotas. Mr. Gordon was very exacting on his quotas. Come
4 the end of the week if you didn't have quotas you would
5 swap with people sometimes and the fact that Scott
6 Michaelson is on the top of this order form of Exhibit 9
7 or whatever, does not necessarily mean that Scott
8 Michaelson spoke to Rita Rieger that she spoke to somebody
9 named Michael. There is some similarity between 10 Michaelson and Michael. As far as I know there were three 11 first name Michaels working as salespeople at Who's Who. 12 So if it should turn out that Your Hon
or does believe this 13 is unreliable to the point of attributing a criminal act 14 on Scott Michaelson based on the fact that his name is on 15 the top of the order form, I don't want the jury to hear 16 that because I think we might have to consider hearing a 17 mistrial. 18 THE COURT: All right. I'm going to allow the 19 voir dire in the absence of the jury. 20 Are you prepared to do it now? 21 MR. GEDULDIG: Yes, Judge. 22 THE COURT: All right. Bring in the jury. I'm 23 going to excuse them for lunch then. 24 MR. WALLENSTEIN: My client wishes to absent 25 himself this afternoon in view of the fact that this
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1 testimony has nothing to do with Mr. Reffsin. 2 THE COURT: Does your client understand that he
3 has a right to be present at all phases of this tria
l?
4 MR. WALLENSTEIN: Yes.
5 THE COURT: A constitutional right to be present.