2781 19 20 Court Reporter: HARRY RAPAPORT, CSR United States District Court 21 Two Uniondale Avenue Uniondale, New York 11553 22 (516) 485-6558 23 Proceedings recorded by mechanical stenography, transcript 24 produced by Computer-Assisted Transcription 25
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2783 1 M O R N I N G S E S S I O N 2
3 THE CLERK: Jury entering.
4 (Whereupon, the jury at this time entered the
5 courtroom.)
6 THE COURT: Good morning, members of the prompt,
7 punctual, patient and perfect jury. Have a seat.
8 I am sorry I had to keep you waiting six minutes,
9 because the previous case that was on at 9:00 o'clock, the 10 lawyers didn't come here on time. They were late. I did 11 bring that to their attention, however. But I was delayed 12 a few minutes. 13 Let's proceed. 14 MS. SCOTT: The government calls Jack Heinbaugh. 15 THE CLERK: Please raise your right hand. Please 16 stand and raise your right hand. 17 18 J A C K T H O M A S H E I N B A U G H , 19 called as a witness, having been first 20 duly sworn, was examined and testified 21 as follows: 22 23 THE CLERK: Please state your name and spell your 24 last name slowly for the record. 25 THE WITNESS: Jack Thomas Heinbaugh,
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2784 1 H E I N B A U G H. 2 THE COURT: Have a seat.
3 You may proceed.
4
5 DIRECT EXAMINATION
6 BY MS. SCOTT:
7 Q Good morning, Mr. Heinbaugh.
8 A Good morning.
9
Q Can you tell us where you live? 10 A Herndon, Virginia, H E R N D O N. 11 Q How are you employed? 12 A I am a TV news producer at the CBS affiliate in 13 Washington, D.C. 14 Q What are your responsibilities as a TV news producer? 15 A Collecting and disseminating the news of the day, 16 deciding whether it is video or copy or how long it runs, 17 where it runs in the news cast. 18 Q And how long have you been doing this job? 19 A I graduated from college in 1978. I have been doing 20 it since then. 21 Q Have you ever been contacted by a company called 22 Who's Who Worldwide Registry? 23 A Yes. 24 Q And did you eventually purchase a membership from 25 them?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2785 Heinbaugh-direct/Scott
1 A Yes. 2 Q Can you tell us when you were first contacted
3 approximately?
4 A I believe it was 1993.
5 Q And how were you first contacted?
6 A By telephone at my work.
7 Q Did you have a conversation with the person who
8 called you?
9 A Yes. 10 Q And can you tell us what happened in the course of 11 this conversation? 12 A Parts of it I can remember as if it was like 13 yesterday. And parts of it I am fuzzy on it. I guess 14 because I was not interested in some parts of it. 15 MR. NELSON: Objection, your Honor. May we have 16 a sidebar for a moment on the issue of conversations? 17 THE COURT: Yes. Come up. 18 19 (Whereupon, at this time the following took place 20 at the sidebar.) 21 MR. NELSON: The slow thinker I am, yesterday I 22 did not object or ask for a limiting instruction relative 23 to the conversations as related to Ms. Rieger. It is my 24 understanding, and I may be wrong,
but the conversations 25 at this point are only admissible against the corporation
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2786 Heinbaugh-direct/Scott
1 and not against any of the defendants, because the 2 government has not demonstrated as of yet the existence of
3 a conspiracy, or any of the members were members of the
4 conspiracy, a statement admissible under 801(d)(2)(E).
5 So I will ask that the conversations be
6 admissible at this point only relating to the conversation
7 and not with respect to any of the defendants.
8 MR. WHITE: Your Honor, I don't have a problem
9 with that so long as if there comes a point where your 10 Honor finds that the government has demonstrated by a 11 preponderance that a conspiracy exists, the jury is then 12 instructed that they can consider it against all 13 co-conspirators. 14 THE COURT
: Okay. 15 16 (Whereupon, at this time the following takes 17 place in open court.) 18 THE COURT: Members of the jury, you are going to 19 hear testimony about certain conversations by someone from 20 Who's Who Worldwide. At this point in the case, this 21 testimony is taken against the corporation, Who's Who 22 Worldwide Registry, Inc., and not the individual 23 defendants in the case. I will advise you as we go along 24 whether that changes or not. As you have been told, there 25 is a conspiracy allegation in Count 1.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2787 Heinbaugh-direct/Scott
1 At this point, however, this testimony is only 2 with regard to Who's Who Worldwide Registry, Inc., the
3 corporation, and not the individual defendants.
4 You may proceed.
5 MS. SCOTT: Thank you, your Honor.
6 Q Can you tel
l us what happened in your conversation
7 with the person who called from Who's Who Worldwide?
8 A I was told that I had been nominated by Who's Who for
9 a possible selection to be in the Who's Who book. At the 10 time I was told that I was nominated by someone in my 11 profession. I had been told that that the name of the 12 person could be withheld. Sometime the person who 13 nominated didn't want to be known and that was the case 14 with me. 15 I was told that if I would give them the 16 requested information which I did, that my application 17 would be put before a group of professionals who would 18 weed through them and select only the best of the best. I 19 was told that the vast majority of people who were 20 contacted were not selected. I was told if selected the 21 program had several other benefits to it, and this is the 22 part that I don't remember all of it, because I wasn't 23 really interested, but having to do with -- I can recall 24 something about a credit card, I guess you get a group 25 rate on a credit card. There was the magazine and the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2788 Heinbaugh-direct/Scott
1 plaque. I remember the plaque was definitely part of it. 2 A sticker for the back of a vehicle, art you can use on a
3 resume, things of that nature.
4 And then when I was finally called back and told
5 that I had been accepted, I really didn't have any time to
6 think about it. I guess when I got the phone call they
7 had to know right then if I was interested or not. I
8 don't recall why. But I do recall the feeling that I
9 didn't want to give out my credit card number which I had 10 to do. 11 MR. LEE: Objection. 12 THE COURT: The portion of the testimony about
my 13 feeling about the credit card, that's stricken, and the 14 jury is instructed to disregard it. 15 A I had to make a decision immediately as to whether or 16 not to join. 17 Q Were you told why that was? 18 A I don't recall, unless it was to be -- 19 MR. JENKS: Objection. 20 MR. NELSON: Objection. 21 A I don't recall. 22 THE COURT: All right. 23 Q What was the most important thing said to you that 24 made you want to purchase the membership? 25 MR. LEE: Objection as to leading, your Honor.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2789 Heinbaugh-direct/Scott
1 THE COURT: Overruled. 2 A The only reason that I was impressed with this was
3 because it was Who's Who, the company that I thought I had
4 grown up with and studied from all through high school and
5 college, and that I had been nominated
by a peer, a
6 professional in my business, to be included in this book.
7 Q And why did you think the membership would be
8 something that you wanted?
9 A Well, as I was selected to be nominated from someone 10 in my profession, I felt that there would be other 11 individuals who were also nominated in their professions 12 as being the cream of their crop, and that it would be a 13 good place to be with a group of the best of the best, I 14 am embarrassed to say. 15 Q What if any use did you expect to put your membership 16 to? 17 A One use was for my resume, thinking that it was Who's 18 Who, I felt that that would be a good item to put on a 19 resume. 20 Plus, I felt if others were nominated like me and 21 there were a select few of us, and that if I was 22 interested in contacting a person in another company, and 23 I could use the fact that I am
in Who's Who also, and that 24 that would be a benefit. 25 Q I am showing you Government's Exhibit 52-F, as in
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2790 Heinbaugh-direct/Scott
1 Frank, for Identification. 2 (Handed to the witness.)
3 Q Do you recognize that?
4 A Yes.
5 Q What is that?
6 A That is the letter I got acknowledging my acceptance
7 as being in Who's Who.
8 MS. SCOTT: I offer Government's Exhibit 52-F, as
9 in Frank. 10 THE COURT: Any objection? 11 MR. TRABULUS: No. 12 THE COURT: Government's Exhibit 52-F, for Fox, 13 in evidence. 14 (Government's Exhibit 52-FF received in 15 evidence.) 16 Q Can you read the date on that letter, Mr. Heinbaugh? 17 A June 17th, 1993. 18 MR. SCHOER: Your Honor, can we have an 19 instruction that this is being offered at this time
only 20 against the corporation? 21 THE COURT: Yes, it is. As I advised the jury at 22 this point, this evidence is being taken only against the 23 corporation, Who's Who Worldwide Registry, Inc. 24 Q Mr. Heinbaugh, could you please read the first couple 25 of paragraphs on that letter?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2791 Heinbaugh-direct/Scott
1 A Dear Mr. Heinbaugh. 2 You were recently nominated for possible
3 inclusion in the Who's Who Registry for global business
4 leaders.
5 We are pleased to inform you that on June 15th,
6 the office of public affairs accepted your nomination for
7 the Who's Who Registry of global business leaders.
8 Since the majority of new candidates who are
9 nominated are not approved, we wish to extend our 10 congratulations for his coveted event on behalf of the 11 boar
d of public affairs. 12 As inclusion in the Global Edition is 13 confirmation and recognition of exceptional people, the 14 office of public affairs evaluates nominees in accordance 15 with specific standards of achievement. 16 THE COURT: You have to slow down. All of this 17 is taken down. You better repeat that. 18 THE WITNESS: As inclusion in the Global Edition 19 is confirmation and recognition of exceptional people, the 20 office of public affairs evaluates nominees in accordance 21 with specific standards of achievement. 22 The Who's Who Registry is a leading and 23 authoritative reference source of accomplished individuals 24 and their career positions. For the sake of member 25 privileges have, we do not publish phone numbers.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2792 Heinbaugh-direct/Scott
1 MR. LEE: Objection, you
r Honor. 2 THE COURT: On what ground?
3 MR. LEE: I apologize for the interruption, but I
4 think that Ms. Scott identified the exhibit as 52-F as in
5 Frank. I believe there is a mistake in the
6 identification.
7 THE COURT: What do you say is the correct
8 number?
9 MR. LEE: My 52-F is not what I believe the 10 witness is reading from. I have my volume in what was 11 provided by the government. 12 MR. JENKS: There are two 52-Fs. 13 MS. SCOTT: I passed out copies this morning. 14 MR. LEE: I did not receive it, Ms. Scott. 15 MR. TRABULUS: Your Honor, there are two 52 Fs. 16 One passed around today, another given out a while ago. 17 THE COURT: It is understandable, is it not, with 18 all this mass of documents that occasionally there would 19 be wrong numbers. 20 MS. SCOTT: May I renumber it as 52-FF? 21 THE COURT: Let me see if I hav
e it. I don't 22 have it either, and that's serious. 23 MS. SCOTT: I passed it out this morning. 24 THE COURT: All right, 52-FF instead of 52-F? 25 MS. SCOTT: Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2793 Heinbaugh-direct/Scott
1 Your Honor, may I publish 52-FF to the jury? 2 THE COURT: Yes.
3 (Whereupon, the exhibit/exhibits were published
4 to the jury.)
5 Q Mr. Heinbaugh, how much did you pay for this
6 membership in Who's Who Worldwide?
7 A I don't recall exactly. I believe it was a few
8 hundred dollars.
9 Q And how did you pay for it? 10 A Credit card. 11 Q How did you give your credit card number to the 12 people at Who's Who Worldwide? 13 A By telephone. 14 Q I am showing you 52-F, which is the invoice of Who's 15 Who Worldwide. 16 MS. SCOTT: Would you check that?
17 MR. JENKS: Yes. 18 MS. SCOTT: Your Honor, 52-F as in Frank, for 19 Identification. 20 (Handed to the witness.) 21 Q Do you recognize that? 22 MR. LEE: Judge, I have an objection. 23 THE COURT: Just one minute, please. 24 MR. LEE: Because I wasn't aware that we were 25 discussing 52-FF, I did not object to its admission, but I
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2794 Heinbaugh-direct/Scott
1 do have an objection as to that. 2 THE COURT: I said just a minute, and I will be
3 right with you.
4 MR. LEE: I apologize, your Honor, and I didn't
5 hear you.
6 THE COURT: For the time being, juror number two,
7 would you hold up on it, put it on the ledge until we get
8 to it.
9 (Whereupon, at this time there was pause in the 10 proceedings.) 11 THE COURT: You are talking about 52-FF?
12 MR. LEE: Yes. 13 THE COURT: You are objecting to it? 14 MR. LEE: Yes. 15 THE COURT: On what ground? 16 MR. LEE: I am not sure, but I am not sure you 17 ruled previously on this type of a document, the generic 18 form of this document. I am not sure. This is what I 19 believe the government has called some sort of a letter 20 sent out. 21 THE COURT: Are you objecting to the foundation 22 that it is not a business record? 23 MR. LEE: Yes, your Honor. 24 THE COURT: I think I did cover all these type 25 records. I am not sure. Did I cover this type of a
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2795 Heinbaugh-direct/Scott
1 record? If I didn't, you will have to cover it, I 2 suppose.
3 MR. SCHOER: Judge, I believe they withdrew that
4 type of document when Ms. Springer was on the stand, and
5 indicate
d they would have another custodian come in. They
6 didn't have another custodian come in.
7 MS. SCOTT: We offered this letter as a letter he
8 received in the mail.
9 THE COURT: His receipt would not make it 10 anything other than hearsay, would it? 11 MR. WHITE: Your Honor, I don't think it is. If 12 you want to discuss the legal issue at the sidebar, I 13 don't think it is hearsay. 14 THE COURT: Because of 801(d)(2)? 15 MR. WHITE: No, your Honor. 16 THE COURT: Come up. Now I am curious. 17 18 (Whereupon, at this time the following took place 19 at the sidebar.) 20 THE COURT: Yes. This is interesting. 21 MR. TRABULUS: We are joining in, your Honor. 22 MR. JENKS: Of course, all of us are joining in 23 the objection. 24 THE COURT: Good thinking, Mr. Jenks. 25 MR. JENKS: We were sleeping at the switch this
HARRY RA
PAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2796 Heinbaugh-direct/Scott
1 morning. 2 THE COURT: I can't believe you were sleeping,
3 Mr. Jenks. Maybe Mr. Neville might have been sleeping.
4 You certainly weren't sleeping.
5 I am only kidding, just for the record.
6 MR. TRABULUS: I was between the two 52-F's.
7 MR. WHITE: You are correct you didn't rule with
8 respect to the solicitation records, that was excepted
9 from what you described before. 10 The government didn't have to prove this meets a 11 business exception. We are not offering it for the truth 12 of it. In fact, the entire theory of the indictment is 13 this document is false. It says he was nominated, our 14 whole theory is he wasn't nominated. This is an admission 15 of the corporation. The only foundation that needs to be 16 laid is that he received this letter. It is just for the
17 fact that he was told this is the essence of the crime. I 18 am not suggesting because of the regularity of producing 19 this by the business that it is true. In fact, our whole 20 theory is that it is false. It is not offered for the 21 truth. 22 THE COURT: Mr. White, that was the greatest 23 example of double-talk I ever heard. It is precisely 24 offered for the fact that it was true when it was sent, a 25 true document. The fact that it may have a false
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2797 Heinbaugh-direct/Scott
1 statement in it is not -- do not confuse that for not for 2 the truth.
3 As a matter of fact, I don't think anybody in
4 this country knows the difference between not for the
5 truth, and hearsay for the truth.
6 One thing is for sure. This document is being
7 offered either as an admission or a
s a business record for
8 the truth. In other words, that it was sent. It may have
9 a false representation in it, but you are saying that it 10 is true that they said since the majority of new 11 candidates who are nominated are not approved, etcetera. 12 That's what you are saying, that they sent this. 13 MR. WHITE: That's true, your Honor. 14 THE COURT: Don't confuse not for the truth with 15 a false representation. 16 MR. WHITE: Your Honor, let me make sure, because 17 this issue is going to recur. 18 My understanding is, and it seems to me that what 19 your Honor is talking about is not hearsay, but it is 20 authentication. In other words, we have to establish 21 first that it was in fact Who's Who Worldwide who sent 22 this letter to this man. 23 THE COURT: It is an admission, so it is 24 admissible anyway. 25 MR. WHITE: Right.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2798 Heinbaugh-direct/Scott
1 THE COURT: We are wasting a lot of time. 2 MR. WHITE: Isn't that different from proving
3 that it is hearsay if we are trying to prove the truth of
4 its content?
5 You are saying we have to prove it is an
6 authentic document, right?
7 THE COURT: I am saying that if it is admissible
8 at all, it is admissible for the truth that this was
9 sent. 10 MR. LEE: An assertion by the maker of it. 11 THE COURT: Not that anything in it is true, but 12 the truth that this is the document that was sent. 13 MR. WHITE: But Mr. Heinbaugh just said that that 14 was sent to him. Doesn't that establish this was sent to 15 him by Who's Who Worldwide? 16 THE COURT: If that were so why would we need any 17 rules? Anybody who received anything, it would be 18 admissib
le in evidence. Where does that make it 19 admissible. 20 MR. WHITE: If it is not offered for the truth. 21 THE COURT: I am saying you have to offer it for 22 the truth. I disagree with you on that. This is not 23 something that is notice to him. It is not something 24 involving his state of mind. It is something where you 25 want to prove that this company sent a statement to him
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2799 Heinbaugh-direct/Scott
1 that was false. 2 MR. WHITE: Correct.
3 THE COURT: Well, that's for the truth. Maybe
4 the statement was false, but the document is true.
5 MR. WHITE: Isn't that simply authentication and
6 not hearsay?
7 THE COURT: No. Because him receiving it doesn't
8 make it admissible.
9 MR. WHITE: I don't mean to belabor this, but I 10 am actually confused. 11 It so
unds as if what you are saying is we have to 12 assume, or we have to prove that it was a business record. 13 THE COURT: Or an admission. 14 MR. WHITE: Or an admission. 15 THE COURT: Yes. 16 MR. WHITE: But I don't understand, haven't we 17 proved it is an admission by this gentleman, this witness 18 saying I received this letter from Who's Who Worldwide? 19 THE COURT: But now you are like Gayle Sayers 20 changing 180 degrees in full speed. Let's talk like 21 technicians. 22 MR. WHITE: Okay. 23 THE COURT: This document is hearsay unless it is 24 an admission. 25 MR. WHITE: Or unless it is not proved for the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2800 Heinbaugh-direct/Scott
1 actual truth of it. 2 THE COURT: I am denying your application for the
3 third time, you are not listening carefully. I deny your
4 application that this is not being offered for the truth.
5 Now, it is being offered for the truth, how does
6 it get in?
7 MR. WHITE: It is a corporate admission.
8 THE COURT: It is an admission, yes.
9 MR. WHITE: What I am unclear about, your Honor, 10 is, I can prove that it is an admission by the corporation 11 in several ways. One is to have someone from the 12 corporation saying, yes, we sent out this letter, the 13 other way is to have the recipient saying, yes, I received 14 that letter. 15 THE COURT: I am not arguing on that score. 16 MR. WHITE: Mr. Heinbaugh already had done that. 17 THE COURT: Yes. 18 MR. WHITE: So it is a corporate admission? 19 THE COURT: Yes. 20 MR. WHITE: Their hearsay admission should be 21 overruled. 22 THE COURT: But, but for the last five minutes we 23 are arguing about another grounds. 24 MR
. WHITE: Your admitting it anyway? 25 THE COURT: Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2801 Heinbaugh-direct/Scott
1 MR. JENKS: Objection to someone identifying the 2 document, without someone who prepared the document.
3 THE COURT: Objection overruled on all those
4 bases.
5 MR. LEE: Your Honor, I think Mr. White's
6 argument is disingenuous. I think first that this does
7 not meet the classic definition of an admission whose
8 reliability stems from that it is a declaration against
9 some sort of an interest that is made. 10 THE COURT: Stop, Mr. Lee. It has nothing to do 11 with against interest. As a matter of fact, that's where 12 the state -- I once gave a lecture on the difference 13 between federal and state rules of evidence. One of the 14 interesting differences is in state court an admission has 15 to
be against the interest of the person. An admission in 16 the federal court is just a statement made in the course 17 of business, that's all. It doesn't have to be against 18 anybody's interest. It is a statement. It is a 19 conversation. It is a letter. 20 MR. JENKS: Wouldn't they need a custodian to say 21 that this is a business record prior to the introduction? 22 THE COURT: No. I think the fact that it says 23 Who's Who in print, and that he received it is 24 sufficient. 25 MR. LEE: Judge, I, of course, ask for an
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2802 Heinbaugh-direct/Scott
1 instruction to the jury to make it clear that it is 2 admissible only against the corporation.
3 THE COURT: I said it already. I will not say it
4 again. I said it twice in the last half an hour.
5 MR. SCHOER: I had asked for one.
6
MR. LEE: I heard that, all right.
7 MR. WHITE: I am sorry I misunderstood before,
8 your Honor.
9 THE COURT: All right. 10 11 (Whereupon, at this time the following takes 12 place in open court.) 13 THE COURT: The objection to 14 Government's Exhibit 52-FF, Fox Fox, is overruled. The 15 statement, the document is in evidence and it is against 16 the corporation, Who's Who Worldwide Registry, Inc. 17 You may proceed. 18 MS. SCOTT: Thank you, your Honor. 19 THE COURT: Now, you can continue to look at 20 that, juror two. 21 Q Mr. Heinbaugh, would you take a look at 22 Government's Exhibit 52-F, as in Frank, for 23 Identification, and tell us what that is? 24 A That's my bill, my receipt. 25 Q How did you receive that bill?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2803 Heinbaugh-direct/Scott
1 A In the mail. 2 Q Is that a bill from Who's Who Worldwide?
3 A Yes.
4 MS. SCOTT: I offer Government's Exhibit 52-F as
5 in Frank?
6 THE COURT: Any objection?
7 MR. TRABULUS: No.
8 THE COURT: Government's Exhibit 52-F for Fox in
9 evidence. 10 (Government's Exhibit 52-F received in evidence.) 11 Q Mr. Heinbaugh, do you see the record of your purchase 12 there on that invoice? 13 A Yes. 14 Q And how much does it say you paid for the membership? 15 A $197. 16 Q And what was the length of the membership that you 17 purchased as recorded on that document? 18 A Three year. 19 Q Does the document also contain personal information 20 about yourself on it? 21 A Yes. 22 MS. SCOTT: Your Honor, may I publish 23 Government's Exhibit 52-F as in Frank, to the jury? 24 THE COURT: Yes. 25 (Whereupon, the
exhibit/exhibits were published
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2804 Heinbaugh-direct/Scott
1 to the jury.) 2 Q Now, Mr. Heinbaugh, did you receive a plaque?
3 A Yes.
4 Q And did you receive a directory?
5 A Yes.
6 Q What happened when you received the directory?
7 MR. JENKS: Objection.
8 THE COURT: Well, on what grounds?
9 MR. JENKS: I don't see how it can possibly 10 answer that. 11 THE COURT: He is asking a narrative question, 12 what is the next thing that happened? You should like 13 that kind of question, Mr. Jenks. 14 MR. JENKS: I don't like that kind of question, 15 Judge. 16 THE COURT: Okay. You don't, and I do. 17 Overruled. 18 A I was impressed by the size of it. I thought it was 19 a bit bigger by what I had envisioned. 20 Q Did you look through it? 21 A
Yes, I did. 22 Q What did you look through it for? 23 A I was determined to find the name of the person who 24 had nominated me. 25 Q Did you find that person?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2805 Heinbaugh-direct/Scott
1 A I could find no one in the directory that I knew at 2 any point in my life of all the names I went through.
3 Q Did you use the directory for any purpose?
4 A No.
5 Q Did you ever contact anybody in the directory?
6 A No.
7 Q Did anybody in the directory ever contact you?
8 A No one specifically called me saying that they were
9 connected with Who's Who Worldwide. However, I did get a 10 bunch of phone calls from people with New York accents at 11 about this time. 12 THE COURT: With New York accents? 13 THE WITNESS: Yes, sir; with all due respect. 14 THE COURT: Okay.
15 Q Were you contacted again? 16 A Yes. 17 Q Who contacted you? 18 A I was contacted by Sterling Who's Who. 19 Q And when was that approximately? 20 A I believe that was within a year from the original. 21 Q Do you remember how you were contacted by Sterling? 22 A I believe in the case of Sterling I was sent a form 23 to fill out for possible inclusion in the Sterling Who's 24 Who. And that may have come with the paperwork that came 25 from Who's Who. It may not have come separately.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2806 Heinbaugh-direct/Scott
1 I filled out some semblance of a card, I believe, 2 and sent it in.
3 Q I am showing you Government's Exhibit 52 H and 52-D
4 as in Daniel, for Identification.
5 (Handed to the witness.)
6 Do you recognize those?
7 A Yes.
8 Q And what are they?
9 A This is the form where I expressed interest being 10 included in the Sterling directory. 11 Q You are talking about 52-D, as in Daniel? 12 A Yes. 13 Q And what is Government's Exhibit 52-H? 14 A This is the letter informing me that I was comminuted 15 to be included in the Sterling Who's Who directory. 16 MS. SCOTT: I offer Government's Exhibit 52-D and 17 52-H. 18 THE COURT: Any objection? 19 MR. TRABULUS: No. 20 MR. JENKS: No. 21 THE COURT: Government's Exhibits 52-D, for Dog, 22 52-H, for How, in evidence. 23 (Government's Exhibit 52-D received in evidence.) 24 (Government's Exhibit 52-H received in evidence.) 25 Q Mr. Heinbaugh, would you read the first paragraph of
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2807 Heinbaugh-direct/Scott
1 the letter, 52-H. 2 A We are pleased to inform you
that on October 27th you
3 were nominated by our editors for inclusion in the
4 Sterling Who's Who directory.
5 MS. SCOTT: Your Honor, may I publish
6 Government's Exhibit 52-H and 52-D?
7 THE COURT: Yes.
8 (Whereupon, the exhibit/exhibits were published
9 to the jury.) 10 Q Now, Mr. Heinbaugh, did anybody from Sterling Who's 11 Who call you? 12 A Yes. 13 Q And did you have a conversation with that person? 14 A Yes. 15 Q What happened in that conversation? 16 A It was a conversation regarding the additional 17 payment, or the payment for the membership, the book, the 18 plaque, and, again, the credit card number, I believe, for 19 payment. 20 Q What were you told about membership in Sterling Who's 21 Who? 22 A What I recall from the cream of the crop, we got the 23 cream of the cream of the crop; that it was a more
24 exclusive membership, and there were more perks involved 25 with it, and another directory, and another plaque.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2808 Heinbaugh-direct/Scott
1 Q Did you agree to purchase a membership in Sterling 2 Who's Who?
3 A Yes, I did.
4 Q Do you remember how much you paid for it?
5 A I believe it was approximately twice the amount of
6 the original. Again, I don't recall exactly, but I think
7 it was 300 and some, maybe almost 400.
8 Q I am showing you Government's Exhibit 52-B as in Boy,
9 for Identification. 10 (Handed to the witness.) 11 Q Do you recognize that? 12 A Yes. 13 Q What is it? 14 A It is my bill for Sterling Who's Who. 15 MS. SCOTT: I offer Government's Exhibit 52-B, as 16 in Boy. 17 THE COURT: Any objection? 18 MR. TRABULUS: No, your Honor.
19 THE COURT: Government's Exhibit 52-B, for Baker, 20 in evidence. 21 (Government's Exhibit 52-B received in evidence.) 22 Q Looking at that document, can you tell us the date? 23 A The date of the invoice is December 5th, 1994. 24 Q Can you tell us about the purchase that is 25 commemorated on that document?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2809 Heinbaugh-direct/Scott
1 A One preferred membership, split billing, in Sterling 2 Who's Who, one Sterling Who's Who custom plaque, one
3 Sterling Who's Who Executive Club edition directory. No
4 additional charge. Membership in Who's Who Executive Club
5 with PR release format. Complimentary privileges and
6 benefits.
7 Q And what is the price it indicates that you paid
8 there for that membership?
9 A $380. 10 MS. SCOTT: May I publish 11 Government's
Exhibit 52-B, your Honor? 12 THE COURT: Yes. 13 (Whereupon, the exhibit/exhibits were published 14 to the jury.) 15 Q Did you receive anything in connection with your 16 membership in Sterling Who's Who? 17 A Yes, I received the plaque. 18 Q Did you receive anything else? 19 A No. 20 Q Now, what eventually happened in connection with your 21 memberships at Who's Who Worldwide and Sterling Who's Who? 22 A They disintegrated. I stopped getting magazines. I 23 never heard about a directory. I was contacted by the 24 postmaster general's office, I believe. 25 THE COURT: You said you did not get a
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2810 Heinbaugh-direct/Scott
1 directory? 2 THE WITNESS: Not with Sterling Who's Who, no.
3 Q Without telling us what you were told by the
4 postmaster, can you tell us wh
at you did?
5 A I filled out a survey of answers to questions.
6 MR. LEE: Objection.
7 THE COURT: Overruled.
8 MR. LEE: It is a non-verbal assertion. It is in
9 writing. It is an assertion. 10 THE COURT: We don't know what it is. It wasn't 11 offered. All he was asked is did he fill something out. 12 Go ahead. 13 A I answered questions in a questionnaire. I made 14 copies of the information that I had received from Who's 15 Who, and I mailed everything in to the address I was 16 requested to mail it to. 17 Q And did you attempt to contact either of the 18 companies, Sterling Who's Who or Who's Who Worldwide after 19 that? 20 A I requested a refund from Who's Who, Sterling Who's 21 Who at about that time. 22 Q And, Mr. Heinbaugh, did you get a refund? 23 A No. 24 MS. SCOTT: I have no further questions. 25 THE COURT: All righ
t.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2811 Heinbaugh-direct/Scott
1 Cross-examination. 2 MR. TRABULUS: Thank you, your Honor.
3
4 CROSS-EXAMINATION
5 BY MR. TRABULUS:
6 Q Good morning, Mr. Heinbaugh. My name is Norman
7 Trabulus, and I am here for Bruce Gordon.
8 I don't know if you recall, but when you read
9 your Tribute Magazine, did you see any articles signed by 10 Bruce Gordon? 11 A I don't recall the name. 12 Q Mr. Heinbaugh, tell me what kinds of things you do as 13 a producer? 14 A Disseminate news of the day, make judgments on what 15 is news and what isn't news, how to narrow down the events 16 of the day into an hour. 17 Q Have there been news programs that you yourself have 18 produced? 19 A Yes. 20 Q Is that in the Washington, D.C. area? 21 A Yes.
22 Q Have you received any recognition in the Washington, 23 D.C. area for the quality of your news broadcasts? 24 A Yes, I have. 25 Q Have you gotten any awards?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2812 Heinbaugh-cross/Trabulus
1 A Yes, I have. 2 Q Is it fair to say that you are well regarded and well
3 respected in your profession in the Washington, D.C. area?
4 A Yes, it is.
5 Q Have you attended any national -- I don't know how it
6 is done in the news industry, but I assume there are
7 national conventions or national organizations of people
8 who are news producers, or in that business. Are you a
9 member of any of those? 10 A No. 11 Q Is there some sort of national -- withdrawn. 12 Within CBS, have you received any award or 13 recognition for what you have done? 14 A No. 15 Q But you are
well regarded and received recognition in 16 the Washington, D.C. area; is that correct? 17 A I believe by virtue of surviving in Washington, D.C. 18 since 1983 and still having a job in this business, there 19 is some semblance of recognition. 20 Q What are the names of shows you produced? 21 A Eyewitness News at 4. 22 That I have or do produce? 23 Q Both. Why not just go up to the point of 1993. Up 24 to 1993 what did you produce? What did you produce? 25 A Eyewitness News at 11, Eyewitness News at 5,
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2813 Heinbaugh-cross/Trabulus
1 Eyewitness News at 4, Redskins post game show. 2 Q Is it fair to say that among the things that the CBS
3 affiliates in the Washington, D.C. area show, these are
4 major, major shows; is that fair to say? They occupy
5 periods of time and are widely viewed
?
6 A Yes.
7 Q Has the CBS affiliate in the Washington, D.C. area
8 done well in respect of viewership since you have been a
9 producer? 10 A Yes, and no. 11 Q Now, when you received a letter -- withdrawn. 12 The very first contact you had from Who's Who 13 Worldwide was when you received the solicitation letter 14 which I think has been marked as 52-FF. I am going to 15 show it to you. 16 When you received this, was that the very first 17 contact you had with Who's Who Worldwide? 18 (Handed to the witness.) 19 A No. 20 Q Had you received something before that? 21 A A telephone call. 22 Q You got a telephone call first before you got 23 anything in writing? 24 A Yes. 25 Q And after that you got this in writing; is that
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2814 Heinbaugh-cross/Trabulus
1 correct? With a card? 2 A Yes.
3 Q Now, when you got that telephone call, you didn't
4 agree to pay at that point in time, did you?
5 A As I wasn't accepted at that time, so, no.
6 Q So, your agreement to become a member came after you
7 received this letter; is that correct, in another
8 telephone call?
9 A Yes. 10 Q Now, when you received this letter -- let me ask you 11 this: Did anybody -- when you spoke to the people in this 12 telephone call, nobody told you that they Who's Who were 13 in America, were they -- did they? 14 A As I recall, the conversation was Who's Who. 15 Q Just Who's Who; is that correct? 16 A Who's Who. 17 Q Now, when you got this letter, did you know right 18 under where it says Who's Who Worldwide, it says in 19 quotes, the largest Who's Who membership organization in 20 the world? Did you see that
? Did you take note of that 21 at the time? 22 A Yes. 23 Q Now, did that suggest to you that there might be some 24 other Who's Whos? 25 A There are other Who's Whos as far as Who's Who among
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2815 Heinbaugh-cross/Trabulus
1 high school athletes, high school students, there are all 2 sorts of Who's Whos.
3 Q Were you aware of that at the time you joined up?
4 A I was aware that there are different Who's Whos, all
5 based with the main company, I felt.
6 Q Okay.
7 Now, that was your feeling, that there was only
8 one company and all Who's Whos were related to each other;
9 is that correct? 10 A Yes. 11 Q And nobody in any of these telephone calls 12 specifically told you that; is that correct? 13 A Nobody told me they were not related to the famous 14 Wh
o's Who. 15 Q Did anybody tell you that all the Who's Whos in the 16 world were part of the same Who's Who organization? 17 A No. 18 Q In fact, the letter says we are the largest Who's Who 19 membership organization in the world; is that correct? 20 A Yes. 21 Q In fact, as you sit here today, do you have any 22 reason to believe that among Who's Who membership 23 organizations, Who's Who Worldwide was not in fact the 24 largest Who's Who membership organization? 25 A No.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2816 Heinbaugh-cross/Trabulus
1 Q You received a book, a directory; is that correct? 2 A Yes.
3 Q Was this the one you received? Was this the color of
4 it?
5 A Yes, it was red.
6 MR. TRABULUS: I am referring to
7 Defendant's Exhibit Q in evidence.
8 Now, you said you went through it,
and you looked
9 to see if there was anybody you knew; is that correct? 10 A Yes. 11 Q In going through it, did you notice if there were 12 other people with CBS affiliations in it? 13 A I found no one with any affiliation to television in 14 it. 15 Q You found no one with any affiliation to television 16 in it? Did you read each page? 17 A No. I was looking for names of people I worked with 18 and history -- 19 Q So, there were a specific group of people, a specific 20 group of names, and you were looking up the specific group 21 of names; is that correct? 22 A Yes, people I knew. 23 Q And how many names was that about? 24 A My guess would be less than a hundred. 25 Q Now, did these include people in New York?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2817 Heinbaugh-cross/Trabulus
1 A A few, I guess.
2 Q The headquarters of CBS is in New York; is that
3 correct?
4 A Yes.
5 Q As you sit here today -- withdrawn.
6 When you got the Tribute Magazines, did you see
7 any nomination ballots in the Tribute Magazines?
8 A Yes.
9 Q So, did you ever yourself nominate anybody utilizing 10 any of those ballots? 11 A No. 12 Q Did you think about doing that? 13 A No. 14 Q Nobody told you that you couldn't do it, did they? 15 A I was told specifically that I could. 16 Q That you could. 17 Do you know whether or not as you sit here as to 18 whether or not you were selected from a mailing list, or 19 whether you were nominated by somebody? Do you know one 20 way or another? 21 A No. 22 Q Now, is it fair to say that although you couldn't 23 find any of the names that you thought might have been of 24 people who had nomin
ated you, you were still satisfied 25 with your membership in Who's Who Worldwide?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2818 Heinbaugh-cross/Trabulus
1 A Yes. 2 Q And in fact, you were so satisfied that when it came
3 time that you were invited to become a member of Sterling
4 Who's Who at a high price for perhaps a longer period
5 membership, you agreed to do that; is that correct?
6 A Yes.
7 Q And you agreed to do that even though you had already
8 in reading the book discovered that none of the people
9 whom you thought might have nominated you were in the 10 book; is that correct? 11 A Yes. 12 Q So that obviously didn't affect your decision as to 13 whether or not to become a member of Sterling Who's Who; 14 is that correct, it certainly didn't make you not -- 15 A The inability to find a name in the book did n
ot get 16 in the way of me choosing to join Sterling Who's Who. 17 Q Mr. Heinbaugh, I will show you what has been called 18 as Defendant's Exhibit C in evidence, which is volume 4 of 19 Tribute. 20 Do you recall getting this magazine? 21 A Yes. 22 Q And do you recall reading a profile of Diane Diamond, 23 a senior correspondent for Hard Copy? 24 A I do not recall, but I guess that I do read it. 25 Q And Hard Copy is a CBS production?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2819 Heinbaugh-cross/Trabulus
1 A Is that true? 2 Q I am asking you.
3 A I don't believe so.
4 Q It mentions that Hard Copy had been with CBS?
5 A Yes.
6 Q It is a CNN. It shows you how much TV I watch.
7 Now, as you are there today, do you personally
8 know from having reviewed any directories how many CBS
9 people who wo
rked for CBS, or had an affiliation with it, 10 were members of Who's Who Worldwide? 11 A No. 12 Q Do you know who Howard Stringer is? 13 A Yes. 14 Q Who is Howard Stringer? 15 A CBS president, former affiliate. 16 MR. TRABULUS: Bear with me a moment. 17 (Whereupon, at this time there was a pause in the 18 proceedings.) 19 Q I will show you not the book you got, but another 20 one, which is also in evidence, and that is called 21 Defendant's Exhibit P. And this is my copy. 22 We are at page 766, I will point to an entry, 23 would you read that. 24 A Howard Stringer, president, CBS Broadcasting Group, 25 51 --
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2820 Heinbaugh-cross/Trabulus
1 Q You don't have to read the rest of it. 2 Would it please you to be a member of the same
3 registry of Howard St
ringer? He is certainly someone you
4 would not seem to be unhappy to be with him?
5 A If he was nominated by his peers, I would be happy to
6 be included in the same book with him.
7 Q If he had voluntarily joined it, would you be happy
8 to be included in the same book? Yes or no, sir?
9 A No. 10 Q Did you hear anything about any networking parties? 11 A I am sorry? 12 MR. TRABULUS: Withdrawn. 13 Q Did you ever hear of any networking opportunities at 14 Who's Who, anybody talk to you about that? 15 A I believe some of the literature made references to 16 gatherings for networking opportunities. But I think it 17 was always in the works. 18 Q Okay. 19 Did anybody ever speak to you about a CD-ROM? 20 A Yes. 21 Q Did anybody ever suggest that you buy the CD-ROM? 22 A Yes. 23 Q Did you buy it? 24 A No. 25 Q What was
the price that it was offered for you to buy
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2821 Heinbaugh-cross/Trabulus
1 it? Do you recall? 2 A It might have been, I don't recall.
3 Q Are you familiar with the price of CD-ROM type
4 directories?
5 A I am sorry, I do not.
6 Q Do you own a computer?
7 A Yes.
8 Q That has a CD-ROM capacity?
9 A Yes, I do. 10 Q Have you bought CD-ROMs? 11 A Only the ones that came with the computer, and for 12 the kids. 13 Q All right. 14 A Sorry. 15 Q Would it be of any significance to you how many other 16 people who had CBS affiliations were in the directories? 17 A It would depend on how they got there. 18 Q Okay. 19 So, if I were to go through the book utilizing 20 information in the CD-ROM, showing you a group of people 21 who were members of
CBS as being members, it would be of 22 no interest to you unless each one was separately 23 nominated; is that correct? 24 A Well, I have my own directory of people who were in 25 CBS. If I was interested in contacting Howard Stringer, I
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2822 Heinbaugh-cross/Trabulus
1 could do it that way. 2 Q But just for the appropriateness of you being in the
3 directory -- withdrawn.
4 From what I gather, your first dissatisfaction
5 with Who's Who and Sterling arose after, as you put it, it
6 disintegrated; is that correct?
7 A The whole premise of it collapsed.
8 Q Up until that point you were happy with it; is that
9 correct? 10 A Yes. 11 Q And you would have continued on happy with it? 12 A Until I never got the book, the second book. So, I 13 guess at some point I would have
become unhappy. 14 Q And your unhappiness now is directed at Who's Who; is 15 that correct? 16 A My unhappiness is directed at being included in a 17 book in which I wasn't nominated for. 18 Q Do you know whether you were nominated or not? 19 A Show me the nomination. 20 Q Let me ask you this: When you were -- do you believe 21 that the reason you didn't get the book, the second book, 22 is because Who's Who or Sterling decided not to send it to 23 you? 24 A I have no -- nothing to base that on. I honestly 25 don't know if the company is still in business.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2823 Heinbaugh-cross/Trabulus
1 Q Did you speak to Inspector Biegelman at any point in 2 time, a postal inspector?
3 A I don't believe so.
4 Q Did you ever tell either Mr. White or Ms. Scott, or
5 any of the postal i
nspectors, that your unhappiness with
6 Who's Who and Sterling, didn't begin until after the
7 company disintegrated?
8 A I don't believe so. It began with the questionnaire.
9 Q Did they ever say that it disintegrated only after 10 they raided it? 11 A No. I have no -- like I say, I have no clue whether 12 it is still going or not. 13 Q Did they explain to you that this was a criminal case 14 that you were coming to testify in? 15 A No. Maybe. I don't recall that. 16 Q Are you aware that the people who are here -- well, 17 not talking about the lawyers, of course, but talking 18 about the other people who are on this side of the room, 19 are charged with a crime in connection with Who's Who and 20 Sterling? 21 A That is not for me to determine. 22 Q No. Was that explained to you? Was it explained to 23 you by the people who called you here as a witn
ess? 24 A I was only asked to talk about what I knew about my 25 contact. Virtually nothing about the company was told to
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2824 Heinbaugh-cross/Trabulus
1 me. 2 Q Would you be impressed to see if any other people who
3 were employed by CBS were members of the organization?
4 A Not really.
5 Q Okay, then we won't.
6 No further questions.
7 MR. JENKS: I have a few questions, your Honor.
8
9 CROSS-EXAMINATION 10 BY MR. JENKS: 11 Q Good morning, Mr. Heinbaugh. My name is Mr. Jenks. 12 You joined both Who's Who Worldwide and Sterling 13 Who's Who. Am I correct? 14 A Yes. 15 Q When you joined Sterling Who's Who, that was a year 16 subsequent to you being a member of Who's Who Worldwide; 17 am I right? 18 A Yes. 19 Q Were you aware when you j
oined Sterling Who's Who and 20 you were calling and getting calls from the people in New 21 York, that Sterling Who's Who was another company within 22 the Who's Who organization that it was essentially the 23 same company? 24 A I believed that it was perhaps the same company, but 25 different branches of like the same company.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2825 Heinbaugh-cross/Jenks
1 Q In fact, is it fair to say that you probably believed 2 that Sterling Who's Who was in fact a -- like a Cadillac
3 product as opposed to maybe an Oldsmobile of Who's Who
4 Worldwide; would that be a fair statement?
5 A Yes.
6 Q In other words, that Sterling Who's Who was a more
7 elite type of membership organization?
8 A Yes.
9 Q Is that correct? 10 A Yes. 11 Q Is it a fair statement to say here in front of the
12 jury that when you were a member of Who's Who Worldwide 13 back in 1993, you were satisfied with being a member in 14 Who's Who Worldwide; is that correct? 15 A Yes. 16 Q When you received the book, you said in the mail, the 17 Registry, you were impressed with the size of it, am I 18 right? 19 A I thought it was larger than it would have been. But 20 I was impressed, I guess negatively. 21 Q You were impressed that it had that many names? 22 A Yes. 23 Q You didn't expect it to be that large? 24 A Not quite so large. But I am trying to remember how 25 big the Who's Whos were as I was reading them.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2826 Heinbaugh-cross/Jenks
1 Q When you bargained for your membership with Who's Who 2 Worldwide, when you gave them your credit card, and they
3 charged you the fee, you rec
eived a Registry, am I
4 correct, the book?
5 A I believe at sometime thereafter.
6 Q And you paid an additional $97 to obtain that
7 Registry?
8 A I believe so.
9 Q And you had no problem with that? 10 A No. 11 Q That was not misrepresented to you by anybody in the 12 corporation that there was an additional charge for the 13 book; am I correct? 14 A No. In talking about the Who's Who? 15 Q Right. 16 A The first one? 17 Q Right. 18 A I believe that I would be paying an additional charge 19 at printing. 20 Q In other words, would you pay a membership fee up 21 front which you agreed to do? 22 A Yes. 23 Q And you were told there would be split billing you 24 would pay for the Registry when it was published; is that 25 right?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2827 H
einbaugh-cross/Jenks
1 A Yes. 2 Q And you agreed to do that; am I right?
3 A Yes.
4 Q Besides the Registry, you got a plaque; am I right?
5 A Yes.
6 Q Did you put the plaque any place in your office at
7 CBS or at home or at any place you might work?
8 A At home.
9 Q You put it up at home? 10 A Yes. 11 Q In your den or in your living room or something? 12 A Yes, library. 13 Q In your library, okay. 14 And did other people come in your house and see 15 the plaque? 16 A I don't recall, no. 17 Q All right. 18 How about the logo? Did you use the logo on your 19 resume or on the back of anything? 20 A No. I couldn't use the logo. I did, however, use 21 the name Who's Who on my resume. 22 Q You did use the name, correct? 23 A Yes. 24 Q And you sent your resumes out with your name? 25 A Yes
.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2828 Heinbaugh-cross/Jenks
1 Q Who's Who? 2 A Yes.
3 Q On your resume?
4 A Yes.
5 Q Do you know what impact, if any that had --
6 A No.
7 Q With respect to anyone?
8 A No. I never got a job.
9 Q Did anyone call you about -- you are still with the 10 same place? 11 A Yes. 12 Q CBS? 13 A Yes. 14 Q Right? 15 A Yes. 16 Q And did anybody call you about being a Who's Who 17 member after putting it on your resume? 18 A No. 19 Q You did use it? 20 A Yes. 21 Q Because you felt it had a certain value? 22 A Yes. 23 Q Is that correct? 24 A Yes. 25 Q As you sit here are you aware that there are hundreds
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2829 Heinbaugh-cross/J
enks
1 of organizations of Who's Who in the United States today? 2 A No, absolutely not.
3 Q You are not aware that no one has a monopoly -- let
4 me withdraw that.
5 You are not aware that no one has the exclusive
6 use of the name Who's Who?
7 A I am now aware of that but --
8 THE COURT: Mr. Heinbaugh, you have to wait to
9 let the question conclude before you answer, so you will 10 not be answering at the same time that the lawyer is 11 finishing the question. 12 THE WITNESS: Yes. 13 THE COURT: Let there be a slight pause, okay? 14 THE WITNESS: Yes. 15 Q You are now aware now that no one has the exclusive 16 use of the name Who's Who; am I correct? 17 A Yes. 18 Q Now, how many times prior to your testifying here 19 today have you spoken with the government? 20 A Does spoken with include voice mail messages? 21 Q Let
's say actual conversations, forget the voice 22 mail. 23 A Perhaps five. 24 Q Who specifically have you spoken with from the 25 government?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2830 Heinbaugh-cross/Jenks
1 A The initial paperwork came to me from Al Pagano. 2 Subsequent to that Mr. White and Ms. Scott. I believe
3 that's it.
4 Q You spoke to them on the telephone, am I correct?
5 A Yes.
6 Q Did you come to New York to meet with them prior to
7 testifying here today?
8 A No.
9 Q You said you requested a refund from Sterling Who's 10 Who, but you never got a refund; is that correct? 11 A Yes. 12 Q And is it fair to say the reason you requested a 13 refund from Who's Who is because you got this 14 questionnaire from the United States postal inspectors; is 15 that correct? 16 A That'
s the first clue I had that I wasn't nominated. 17 Q Let me take a look at the documents with you. 18 MR. JENKS: Are they up there, Ms. Scott? 19 MS. SCOTT: It should be up there. 20 Q Your Sterling Who's Who membership here, the 21 effective date of the membership was December 1st, 1994; 22 is that correct? 23 A Yes. 24 Q And it does say on that form, am I right, that there 25 is no cost or obligation to be a member of Sterling Who's
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2831 Heinbaugh-cross/Jenks
1 Who, correct? 2 A It --
3 Q I am sorry, let me withdraw that.
4 Take a look at the letter. Take a look at 52-H,
5 at the bottom.
6 It does indicate, does it not, that your
7 inclusion in Sterling Who's Who is without cost or
8 obligation on your part?
9 A Yes. 10 Q And that is also, by the way, in the letter that you 11 received, 52-FF, in evidence, from Who's Who Worldwide; is 12 that correct? 13 A I believe so. 14 Q That's at the bottom, if you just take a look again. 15 A Yes. 16 Q There is no cost or obligation? 17 A Uh-huh. 18 Q Now, you became a member, for the record, of Who's 19 Who Worldwide October 13th, 1993, am I right? 20 A Yes. 21 Q And approximately a year later you became a member of 22 Sterling Who's Who? 23 A Yes. 24 Q December 1st, 1994, right? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2832 Heinbaugh-cross/Jenks
1 Q And then you received at some point after your 2 membership in Sterling Who's Who, a letter from the United
3 States postal inspectors, right?
4 A Yes.
5 Q And it was that letter, and that questionnaire, that
6 prompted you
to become dissatisfied and request a refund
7 from Sterling; am I right?
8 A Yes.
9 Q And you said you never got the book from Sterling 10 Who's Who; is that right? 11 A Yes. 12 Q And did you pay for the book from Sterling Who's Who? 13 A No. 14 Q Do you know as you sit here today that you joined 15 December 1st, 1994, am I right, Sterling Who's Who? 16 A Yes. 17 Q Do you know that on March 30th, 1995 the United 18 States Government arrested 29 employees of Who's Who 19 Worldwide and Sterling Who's Who? 20 A I have no knowledge about Who's Who Worldwide, or 21 what has happened to it. 22 Q Do you know as you sit here today a book was yet to 23 be published after your membership of December 1st, 1994 24 from Sterling Who's Who? 25 A I have no knowledge.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2833 Heinbaugh-cross/Jenks
1 Q Okay. 2 As you sit here today, did you ever get a refund
3 from Sterling Who's Who?
4 A No.
5 Q You sent your refund letter to Sterling Who's Who
6 when, sir?
7 A 1995.
8 Q Is it fair to say you sent a refund letter on June
9 23rd, 1995? 10 A I believe so. 11 Q Take a look at 52-E for Identification. 12 (Handed to the witness.) 13 Q Do you see that, sir? 14 A Yes. 15 Q Does that refresh your recollection as to when you 16 sent your refund letter to Sterling Who's Who? 17 A Yes. 18 Q You sent it June 23rd, 1995; is that correct? 19 A Yes. 20 Q Are you aware that the United States Government 21 seized all the assets of the corporation of Who's Who 22 Worldwide and Sterling Who's Who at the end of March, 23 1995? 24 A I have no knowledge of what happened to Who's Who
25 Worldwide.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2834 Heinbaugh-cross/Jenks
1 Q Are you aware that the United States Government 2 effectively at the end of March, 1995, closed down both
3 corporations, Who's Who Worldwide and Sterling Who's Who,
4 so there was no one left to give you a refund?
5 A I have no knowledge of the company at all.
6 Q Are you aware that the United States Government took
7 all the assets in the bank accounts of these companies and
8 froze them?
9 A No, I am not. 10 Q Okay. 11 MR. JENKS: I have nothing further, Judge. 12 THE COURT: Anything else? 13 14 CROSS-EXAMINATION 15 BY MR. LEE: 16 Q Good morning, Mr. Heinbaugh. 17 A Good morning. 18 Q Am I correct that after you received the Registry, 19 which is Defendant's Exhibit Q, you stated you took some
20 time to review the contents of this book, is that correct, 21 Defendant's Exhibit Q? 22 A Yes. 23 Q And you stated one of the reasons you reviewed it is 24 to try to see if you could ascertain who might have been a 25 person who had nominated you, correct?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2835 Heinbaugh-cross/Lee
1 A I was looking for the name of the person who 2 nominated me, yes.
3 Q You did not see the name of anyone that you
4 recognized that you thought might have been a person who
5 nominated you, correct?
6 A I could find no one in the book that I knew.
7 Q Now, at that time did you come to a conclusion that
8 you had not been nominated?
9 A I would have had no reason to conclude that, no. 10 Q So, you didn't know either way? Do you understand my 11 question, sir. 12 A I believe I under
stand your question. I did not 13 know -- I would have not come up with the thought that I 14 hadn't been nominated. 15 Q So, you -- 16 A I didn't think it was a scam at that point. 17 Q So, after reviewing, and you stated, you reviewed it 18 very carefully, and you didn't find anyone that was a 19 possibility of someone who would have nominated you? 20 A No. I couldn't find anyone in there that I know. 21 Now, Howard Stringer is in there. He doesn't 22 know me. So I wouldn't have looked for his name. 23 Q So, at that point in time when you didn't find anyone 24 who was even a likely person to have nominated you, would 25 it be fair to say that you suspected paragraphs that you
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2836 Heinbaugh-cross/Lee
1 had not been nominate? 2 A No, I would have had no reason to have that thought
3 implanted in my mind. Why would I?
4 Q Well, you didn't find anybody that you could even
5 imagine might have nominated you, correct? Is that
6 correct?
7 A I could not find anyone who I thought would have
8 nominated me.
9 Q Did that leave you, your thought process, to suspect 10 that perhaps you may not have been nominated? 11 A Not at all. 12 There are various memberships, one year, or a 13 three year life term, that I could have been nominated by 14 someone whose three year membership would have been 15 expired for all I know, but I have no idea that any of 16 this was going on, so I didn't have a negative thought 17 about the book. 18 Q Did you ever -- did you ever call Who's Who Worldwide 19 after receiving the Registry to try to inquire as to who 20 would have nominated you? 21 A As I recall, I asked during a phone call. I did not
22 make a call to find out who had nominated me. I asked 23 during a phone call as to who had nominated me, and I was 24 told in some instances the people wished to remain 25 anonymous, and that was the case now.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2837 Heinbaugh-cross/Lee
1 Q Now, this phone call that you just referred to, that 2 occurred before you received this Registry?
3 A I believe so, yes.
4 Q And I am talking about after you received the
5 Registry and reviewed it, did you call up and inquire as
6 to who may have nominated you?
7 A I don't believe so. It would have been pointless. I
8 got an answer to my question on a previous call.
9 Q But then on the previous call, subsequent to the 10 previous call, you had an opportunity on your own to 11 review that red book, Defendant's Exhibit Q, did you not? 12 A Yes.
13 Q On your own? 14 A Yes. 15 Q And you did not find anyone that you thought might 16 have nominated you, correct? 17 A True. 18 Q And if I am correct, you did not call Who's Who to 19 inquire? It was not something you called them to express 20 concern about; is that correct? 21 A That's correct. Why would I? 22 Q I don't know. I am asking you, was there anything 23 that concerned you to cause you to call them and express 24 your concern as to why you didn't recognize anybody who 25 may have nominated you? You didn't have any concern, and
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2838 Heinbaugh-cross/Lee
1 nothing -- you didn't want to call to find that out, 2 right? Is that correct?
3 A It was pointless. I already got the answer to the
4 question on a previous call. If I call you 20 times you
5 will gi
ve me the same answer, if that's the answer.
6 Q You had your own independent basis now to be
7 concerned, right? Didn't you?
8 A Not really.
9 Q You were not concerned about that at all? 10 A Why would I be? No. Like I said, the person who 11 nominated me could have had their membership expire, or I 12 just could not have been thinking of the person. 13 Q But you told us that that was your primary interest. 14 A It definitely was, in buying. 15 Q When you looked at the book and didn't see anybody, 16 you did not feel concerned enough to inquire? 17 A That's face value. That's correct. That's at face 18 value. 19 Q And -- I am sorry, I interrupted you. 20 And one of the reasons was that you were curious 21 as to who had nominated you, correct? 22 A One of the reasons what? 23 Q You were curious as to who might have nominated you, 24 correct?
25 A Yes, I was curious.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2839 Heinbaugh-cross/Lee
1 Q And when you did not see the name in a book that you 2 recognized, you were not interested enough to call Who's
3 Who and say, is it a person who may have had their
4 membership expire? That didn't occur to you, you didn't
5 do that?
6 A I was already told that the person would not be
7 named, requested anonymity.
8 Q I am correct, so it is clear, after you received this
9 Registry and reviewed it, you did agree to purchase 10 another membership in Sterling, correct? 11 A Yes. 12 Q And that Sterling purchase was after there was a 13 discussion with a person over the money pretty much 14 similar to what the discussion had been the first time at 15 Who's Who Worldwide, correct? 16 A The person on the phone with Who's
Who, Sterling? 17 Q What I am saying, the discussion with the Sterling 18 person was pretty much similar with the discussion you had 19 with the person on the phone about Who's Who Worldwide? 20 Do you recall? 21 A Yes. 22 Q Similar? 23 A Pretty similar. 24 Q And after that subsequent discussion with Sterling, 25 you purchased a membership with Sterling also, correct?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2840 Heinbaugh-cross/Lee
1 A Yes. 2 MR. LEE: Just one moment.
3 (Whereupon, at this time there was a pause in the
4 proceedings.)
5 Q And to this day, you never found out who may or may
6 not have nominated you, you to this day do not know if you
7 were or were not nominated; is that correct?
8 A Correct.
9 Q Has the government told you that you were not 10 nominated? 11 A The go
vernment has not told me that I was not 12 nominated. 13 MR. LEE: Thank you. 14 Q But you don't know that yourself, as to whether or 15 not it is a fact or not? You are basing it on what 16 somebody told you; is that right? 17 A It doesn't matter. It is a book of people who are 18 not chosen as experts in their field. I don't care to be 19 in a book. 20 Q Who has told you that? It is not based on your own 21 knowledge? Someone has told you that; is that right? 22 A I have to agree with you there. 23 Q It has been the government who told you that, right? 24 A Yes. Subsequent to 1995. 25 MR. LEE: Thank you.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2841 Heinbaugh-cross/Geduldig
1 THE COURT: Anything else? 2 MR. GEDULDIG: A few questions, Judge.
3
4 CROSS-EXAMINATION
5 BY MR. GEDULDIG:
6
Q Mr. Heinbaugh, do you remember the name of the
7 salesperson that you spoke to from Who's Who?
8 A No.
9 Q You filled out a questionnaire for the government at 10 sometime; is that correct? 11 A Yes. 12 Q I am referring to item 3500-JH-1. 13 I will ask you to look at question 6. Is that 14 the question you filled out? 15 A Yes. 16 Q Is that your handwriting there? 17 A Yes. 18 Q Did you name the person that you spoke to from Who's 19 Who? 20 A That is a person -- 21 Q The question is: Did you fill in the name of a 22 person you spoke to at Who's Who? 23 A Yes. 24 Q What is the name you wrote down? 25 A Joseph Parks.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2842 Heinbaugh-cross/Geduldig
1 Q Would it surprise you to know that Joseph Parks is 2 not in the room at this moment
?
3 A No, it would not surprise me to know that.
4 Q Now, you graduated from college in 1978?
5 A Yes.
6 Q Is that right?
7 A Yes.
8 Q And did you begin working in the Washington, D.C.
9 area soon after you graduated college? 10 A I began in Washington in 1983. 11 Q Okay. 12 You have been there now going on 15 years? 13 A Yes, sir. 14 Q You are married? 15 A Yes, sir. 16 Q Have children? 17 A Yes. 18 Q And this is probably the area where you will more or 19 less finish out your career, do you believe? 20 A Yes. 21 Q It wouldn't bother you if that should happen? 22 A True. 23 Q You got friends and your kids have friends in the 24 area? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2843 Heinbaugh-cross/Geduldig
1 Q So, you certainly weren't join
ing Who's Who with the 2 thought in mind that you would use that book to network to
3 try to get a higher position with Mr. Stringer in New York
4 or some affiliate in Los Angeles, or something like that,
5 a bigger market?
6 A You are assuming that I would stay in the same
7 field. No, I would not do that.
8 THE COURT: No, you not?
9 THE WITNESS: I would not use that book to get 10 names of people in television to network with. 11 Q When you joined -- let me rephrase my question. When 12 you joined, when you sent in your -- I guess you said you 13 could charge it, they could charge it to your credit 14 card. 15 A Yes. 16 Q At that point when you were joining before you even 17 got the Registry, you were not intending to use the 18 directory or Registry to network into a better position in 19 a bigger area, in New York or Los Angeles? 20 A T
rue. Not in this business. 21 Q Now, prior to receiving questionnaires from the 22 government, the questionnaire I just showed you, and I 23 think you got a second solicitation questionnaire from the 24 government as well; is that right? There were two forms 25 that the postal authorities sent you; is that right?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2844 Heinbaugh-cross/Geduldig
1 A I don't recall the second one. You can show it to me 2 to maybe refresh my mind. That may be true.
3 Q I am showing you now what has been marked as item
4 3500-SH-2, I believe.
5 MR. WHITE: JH.
6 MR. GEDULDIG: JH-2.
7 Q Let me show you this and ask you if that is a form
8 you received from the government.
9 (Handed to the witness.) 10 A Yes. 11 Q And your handwriting appears on that form; is that 12 right? 13 A Yes.
14 Q And that's a solicitation from the government to you 15 in which the government asks you if you would come here 16 and testify against these people; is that right? 17 What I will ask you to do is to turn to the very 18 last page, the very last question. And let me help you 19 with that. 20 Do you see the very last page of JH-2? You see 21 the last question? 22 A Yes. 23 Q That's a government solicitation, right? 24 A Yes. 25 Q They are asking you if you will come here and testify
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2845 Heinbaugh-cross/Geduldig
1 against these people, right? 2 A I didn't write that, I don't believe. I don't think
3 this is my writing.
4 Q Is everything else on that form your writing?
5 A Yes.
6 Q JH-2, is several pages, it is several pages in
7 length; is that right?
8 A Yes, it is, but this doesn't look like my writing.
9 Q Let me ask you to go to page 1 of JH-2. And if you 10 would, it is one, two, three, four pages in length. Just 11 go through those four pages and tell me if that is your 12 handwriting on that form. 13 (Whereupon, at this time there was a pause in the 14 proceedings.) 15 Q Let me rephrase my question. 16 Did you have a telephone conversation with a 17 postal inspector or someone from the government, in which 18 they asked the questions that appear in that 19 solicitation? Do you remember -- 20 A I believe so, yes. 21 Q Okay. 22 Now, what is written down there are your answers 23 to the questions posed to you by the government; is that 24 right? By the government postal inspector or someone else 25 from the government.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
2846 Heinbaugh-cross/Geduldig
1 A Yes, it could be. 2 Q Okay.
3 The answers that appear there reflect what your
4 answers were on the telephone; is that right?
5 A Yes.
6 Q And the last question on that solicitation, the
7 government asked you, if you would be willing to come and
8 testify against these people; is that right?
9 A Yes. 10 Q And you answered that you would be willing to come 11 and testify; is that right? 12 A Yes. 13 Q And up to that point in time, would it be fair to say 14 that you had no thoughts of trying to file any kind of 15 criminal complaint against Who's Who or Joseph Parks, the 16 salesman you dealt with, or anybody else that was part of 17 the organization? 18 A Yes. 19 Q You had filed no complaints at all against the 20 company; isn't that right? 21 A Yes. 22 Q And you d
idn't do anything until the government 23 solicited you to come in and file a complaint and testify; 24 isn't that right? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2847 Heinbaugh-cross/Geduldig
1 Q And you didn't even file for a refund until the 2 government postal inspectors or someone from the
3 government, the U.S. attorney's office came to you; is
4 that right?
5 A Yes.
6 Q The government was behind your motivation to come
7 here today; is that right?
8 A The government information lead me to come here
9 today. 10 Q Do you remember who you spoke to from the postal 11 inspectors? 12 A Originally Al Pagano. 13 Q And on how many occasions did you speak with Pagano? 14 A Maybe twice. It was years ago. 15 Q And that was by phone on both occasions? 16 A Yes. 17 Q And did you s
peak to a guy named Biegelman at all? 18 A I don't recall. 19 Q Okay. 20 And then at a later point in time, was it after 21 you spoke to Pagano that you had an opportunity to speak 22 to Mr. White and Ms. Scott? 23 A Yes. 24 Q Now, let me ask you this: You had been asked some 25 questions and gave some answers about Marqui Who's Who; is
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2848 Heinbaugh-cross/Geduldig
1 that right? 2 A I don't recall. Is it in here?
3 Q I believe you said you heard of Who's Who
4 publications before you sent in your application for
5 membership in this particular Who's Who; is that right?
6 A Yes, the Who's Whos, yes.
7 Q And you said you believed at that point in time that
8 all the Who's Whos you heard about were published by one
9 company or one organization; is that right? 10
A Yes. 11 Q And it was your belief that those companies or that 12 organization was reputable and professional; is that 13 right? 14 A Yes. 15 Q And it was your belief that people listed in those 16 Who's Whos deserved to be in those directories; is that 17 right? 18 A They were nominated to be in those directories, yes. 19 Q And you had conversations with Pagano and perhaps 20 Biegelman, and with Mr. White, and with Ms. Scott, 21 regarding the fact that you were told that your 22 participation in this Who's Who was from a mailing list; 23 is that right? 24 A I had conversations with them regarding the fact that 25 some of the people in the book were not nominated, may not
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2849 Heinbaugh-cross/Geduldig
1 have been nominated. 2 Q And the organization got the name from a
mailing
3 list?
4 A Yes.
5 Q And the government told you that the names, some of
6 the names, and maybe most of the names came from a mailing
7 list; is that right?
8 A I think it was always the form have a question.
9 Like, would I -- did I know that they were from mailing 10 lists, if they were from mailing lists would I be angry if 11 I knew it was from a mailing list? It was always those 12 terms. 13 Q And the clear implication in the question to you was 14 that your name was gotten from a mailing list; isn't that 15 right? 16 A That's the way I feel today. 17 Q Would it be surprising to you to learn that Marqui 18 Who's Who, or the Who's Who who puts out all those 19 directories that you were aware of before you joined this 20 one, also used the mailing list -- also used mailing 21 lists? 22 A Repeat the question? I am sorry,
would it -- 23 Q Would it be surprising to you to learn that the Who's 24 Who directories that you were aware of before you joined 25 this one, the one that you believed was professional and
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2850 Heinbaugh-cross/Geduldig
1 competent and did an excellent job and put deserving 2 people in their directories, also relied on mailing lists?
3 A Yes, that would surprise me.
4 Q Did the government tell you that those organizations,
5 what I characterize as the Marqui Who's Who, but the Who's
6 Who directories that you were aware of prior to joining
7 this one, did the government ever tell you that that
8 organization also used mailing lists?
9 A It was not a part of any conversation that I recall. 10 MR. GEDULDIG: I have no other questions, thank 11 you. 12 THE COURT: Members of the jury, we wil
l take a 13 ten-minute recess. 14 Please do not discuss the case, and keep an open 15 mind. 16 (Whereupon, at this time the jury left the 17 courtroom.) 18 19 (Whereupon, a recess is taken.) 20 21 22 23 24 25
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2851 Heinbaugh-redirect/Scott
1 THE CLERK: Jury entering. 2 (Whereupon, the jury at this time entered the
3 courtroom.)
4 THE COURT: Please be seated, members of the
5 jury.
6 Any redirect examination?
7 MS. SCOTT: Yes, your Honor.
8
9 REDIRECT EXAMINATION 10 BY MS. SCOTT: 11 Q Mr. Heinbaugh, do you remember Mr. Trabulus asking 12 you whether you were told that the Who's Who Worldwide and 13 the Sterling Who's Who companies that you were dealing 14 with were connected at all w
ith other Who's Whos that you 15 already knew about? 16 A Yes, I remember him asking me. 17 Q Did anybody from Who's Who Worldwide or Sterling 18 Who's Who ever tell you that they were not connected with 19 those other Who's Who? 20 MR. DUNN: Objection to a negative, your Honor. 21 THE COURT: Overruled. 22 A No one ever told me that they were not connected. 23 Q Now, do you remember Mr. Jenks asking you whether you 24 used the logo that you received on your resume? 25 A Yes, I recall him asking me that.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2852 Heinbaugh-redirect/Scott
1 Q Do you remember testifying that you did? 2 A I remember testifying that I did not use the logo. I
3 used the typewritten format, Who's Who, on my resume. I
4 just typed it.
5 Q I apologize.
6 Did anybody ever contact you as a result of you
7 placing Who's Who on your resume?
8 MR. TRABULUS: Objection, your Honor. Form.
9 THE COURT: Can I hear that, Mr. Reporter? 10 (Whereupon, the court reporter reads the 11 requested material.) 12 THE COURT: Overruled. 13 Q You were asked a number of questions as to whether 14 you were aware of how your name was obtained by Who's Who 15 Worldwide and Sterling Who's Who; is that right? 16 A Yes. 17 Q And you stated -- do you remember testifying that you 18 were not certain whether you were actually nominated for 19 membership in either of the two companies? 20 A I am sorry? 21 Q I will withdraw the question. 22 Do you remember being asked questions about 23 whether you were aware that you were nominated for 24 selection into those two companies? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2853
Heinbaugh-redirect/Scott
1 Q Now, if in fact your name had come from a mailing 2 list, as opposed to being nominated by a member of the two
3 companies, would that have affected your decision to
4 purchase either of these two companies?
5 MR. GEDULDIG: Objection, your Honor,.
6 MR. DUNN: Objection.
7 THE COURT: Overruled.
8 A Definitely.
9 Q Is that? 10 A We have sources of names of bank presidents, to 11 anyone you can name that are in directories, and many of 12 them pay to be in there. This was special to me because I 13 was nominated, or I thought I was nominated from someone 14 in my profession as being out standing in the profession. 15 If I wanted a compilation of lists of bank 16 presidents, I would go to the library and get a book on 17 bank presidents. They have biographies on them. And 18 thinking that I had been nominate, and fo
r example, a bank 19 president had been nominate, differentiates us from all 20 the other people who are not nominated. And the bank 21 presidents who are appointed by their fathers, because 22 their fathers own the bank. 23 Q Would a book of names of people who had come from 24 mailing lists have had any value to you? 25 MR. GEDULDIG: Objection.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2854 Heinbaugh-redirect/Scott
1 THE COURT: Overruled. 2 A None.
3 Q Why is that?
4 A That's available. It is the phone book. It's free.
5 Q Do you remember Mr. Jenks asking you about the
6 impression you had when you saw the size of the book?
7 A Yes.
8 Q And do you remember testifying that you were
9 negatively impressed? 10 A Yes. 11 Q Can you tell us why that is? 12 A I just thought that the book would be s
maller. I 13 just had an impression that it would have been smaller. 14 Q Why did you think that? 15 A Well, you take the number of people that might be in 16 a given profession, and you narrow it down to the best. 17 And I don't know, I just thought it would be a little bit 18 smaller than that. 19 Q Now, Mr. Heinbaugh, do you remember being asked 20 questions about the government's investigation in this 21 case? 22 A Yes. 23 Q Did those questions about things that the government 24 did, did those have any effect on your evaluation of 25 whether or not you would have purchased these
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2855 Heinbaugh-redirect/Scott
1 memberships? 2 MR. TRABULUS: Objection, your Honor. Backwards
3 in time?
4 THE COURT: Well, that's a difficult -- I think
5 the question is somewhat
confusing, because he did find
6 out certain things that he testified did affect him. So I
7 am not sure that that is a fair question to be put that
8 way.
9 MS. SCOTT: May I have a moment, your Honor? 10 THE COURT: Yes. 11 (Whereupon, at this time there was a pause in the 12 proceedings.) 13 MS. SCOTT: Thank you. I have no further 14 questions. 15 THE COURT: Anything else? 16 MR. TRABULUS: Yes, your Honor. 17 18 RECROSS-EXAMINATION 19 BY MR. TRABULUS: 20 Q Mr. Heinbaugh, Mr. Jenks there asked you about the 21 plaque. In total how many plaques did you receive? 22 A Two. 23 Q You said you put one in your den? 24 A Library. 25 Q Library, I am sorry.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2856 Heinbaugh-recross/Trabulus
1 What did you do with the other one? 2 A I don't recall. It is probably in a box in the
3 basement.
4 Q The one that was in your library, is it still there?
5 A No.
6 Q Did you take it down after you got your letter -- the
7 questionnaire from the post office, the postal inspector?
8 A Yes.
9 Q Before you took it down, had any guests, or relatives 10 or friends ever come by and remark on it? 11 A No. 12 Q Did you ever point it out to anybody? 13 A No. 14 Q Are you the only one who uses your den besides your 15 immediate family? 16 A Yes. Library. 17 Q Now, I think you mentioned before that you weren't 18 looking to network within the news business at the time 19 that you first -- that you first became a member of Who's 20 Who; is that correct? 21 A Yes, true. 22 Q Were you looking to network in any other type of 23 business? 24 A Perhaps. 25 Q You we
re considering that; is that correct?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2857 Heinbaugh-recross/Trabulus
1 A Yes. 2 Q What type of business, sir?
3 A In 1993, probably none in particular, or any in
4 general. Just as a general thing.
5 Q This was just something that was in the back of your
6 mind; is that correct?
7 A Yes.
8 Q The possibility of networking in another area?
9 A Yes. 10 Q And you never pursued it; is that correct? Using -- 11 A Using that book? 12 Q That's correct. Utilizing your membership in Who's 13 Who, is it correct you never considered networking in any 14 other area? 15 A Yes, that's true. 16 Q And it was your decision not to attempt to utilize 17 the networking with respect to Who's Who; is that correct? 18 A Yes. 19 MR. TRABULUS: And that decision was made before
20 you heard anything from the postal inspectors; is that 21 correct? 22 A Yes. 23 Q Now, again, I think you indicated that you were aware 24 of the CD-ROM and decided not to purchase it; is that 25 correct?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2858 Heinbaugh-recross/Trabulus
1 A Yes. 2 Q You made a decision whatever type of networking you
3 would do, you would not use the CD-ROM, but use something
4 else; is that correct?
5 A Yes.
6 Q Now, when you first got the directory, you said you
7 went through it looking for names of people you knew; is
8 that correct?
9 A Yes. 10 Q And in the course of going through it, did you take 11 note of the types of people in the directory, the types of 12 entries? 13 A Some note. 14 Q Did you notice that there were people who were listed
15 as being the president of corporations? 16 A Some note. 17 Q And some of the corporations might be ones you didn't 18 recognize, and you would know if they were small or big or 19 whatever; is that true? 20 A Yes. 21 Q And others were larger corporations, that you were 22 familiar with; is that right? 23 A Yes. 24 Q And you saw people who had other titles within larger 25 corporations, or larger businesses that you were familiar
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2859 Heinbaugh-recross/Trabulus
1 with, correct? Chief financial officer, chief operating 2 officer, regional manager, things like that; is that
3 correct?
4 A Yes.
5 Q You mentioned in response to Ms. Scott, the
6 possibility of a bank president who became a bank
7 president because her father or his father made them a
8 bank pres
ident in what amounted to a family business; do
9 you recall that? 10 A Yes. 11 Q And the types of these larger corporations, or larger 12 businesses that were familiar to you, they were not known 13 to you as being that kind of family business; is that 14 right? 15 A They were not known to be that type of business. 16 Q The fact that someone had reached a certain level 17 within a business of type, whether or not it be a 18 president or chief financial officer, but someone who was 19 in high management, would that not signify to you that 20 someone had made a determination that that person was in a 21 certain sense outstanding within their profession? 22 A No. 23 Q It would not? 24 A It would not. 25 Q When I say someone, I don't necessarily mean another
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2860 Heinbaugh-recr
oss/Trabulus
1 member of Who's Who, but would it not signify to you that 2 perhaps the person, the board of directors of the
3 corporation, or somebody else in management had made a
4 determination that they were outstanding in terms of what
5 they did? Is your answer still no, that it would not?
6 A No, it would not.
7 Q Even though the person who might have made that
8 choice, or the people who might have had business reasons
9 for selecting a person to be a chief financial officer or 10 president, are you still saying it wouldn't suggest to you 11 that at least in the majority of instances a kind of 12 approval, vote of approval of that person? 13 A Let me clarify what you are asking about. 14 You are asking me about the book, if people in 15 the book were all nominated by professionals in their 16 field? 17 Q No. Let me go back. 18 I am not
asking about the fact that you saw those 19 people in the book suggested to you in and of itself that 20 they were nominated by other members. I am asking if it 21 signified to you that the fact that people had other 22 entries, showing they were chief financial officers or 23 managers -- 24 THE COURT: Slow down, Mr. Trabulus. 25 MR. TRABULUS: Thank you.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2861 Heinbaugh-recross/Trabulus
1 Q Presidents, titles like that, people that you felt 2 were significant, would that satisfy you that those people
3 in their profession had reached a certain level of
4 achievement?
5 THE COURT: What he is asking you is if they were
6 a chief financial officer of the corporation, would that
7 alone indicate that they had achieved something?
8 THE WITNESS: No.
9 Q If somebody was a president of a
major corporation, 10 would it indicate to you that they achieved a certain 11 amount of success in their field? 12 A Yes. 13 Q And would it not signify to you, if it was not a 14 family business, that somebody had been chosen for such a 15 position, would that not signify to you that others in 16 their field had a high regard for them? 17 A No. 18 Q Not necessarily? 19 A No. 20 Q Is it your belief that most people who become 21 presidents or chief financial officers, or comparable 22 positions for large corporations, are generally not people 23 who are highly regarded by the people who select them? 24 Yes or no, sir. 25 A Most, no -- yes, most, yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2862 Heinbaugh-recross/Trabulus
1 Q Okay. 2 So, of course there could be someone -- there
3 could be s
omeone who through some other means got the
4 position, or as to whom people made a mistake, but in
5 general most of them would have been people well regarded
6 by their peers; is that correct?
7 A Most of the people who rise to those positions would
8 be well regarded by their peers, yes.
9 Q And, of course -- withdrawn. 10 The peers who you -- excuse me. 11 Now, have you ever in the course of your work had 12 occasion to pass upon a recommendation that somebody else 13 had made concerning somebody who you were considering 14 promoting or employing? 15 A Yes. 16 Q Was there ever an instance where someone was 17 recommending somebody, and it turned out the 18 recommendation was wrong, that the person wasn't as suited 19 or wasn't as they had been recommended to be, in your 20 experience? 21 A Yes. 22 Q Now, when you went through this book at a point in 23 time when you say you had no reason to know whether or 24 not -- withdrawn. 25 When you went through this book at a time, and
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2863 Heinbaugh-recross/Trabulus
1 when I say this book, I mean Defendant's Exhibit Q in 2 evidence, at a time from what you say that you thought
3 everybody in there had been nominated, did it appear to
4 have value to you at that point in time?
5 A Yes.
6 Q And the value largely related to the entries of the
7 people who are in here; is that correct?
8 A Yes.
9 Q And that would be the entry that such and such a 10 person was, for example, a CEO and publisher, opening to a 11 page in random, or something along those lines? Is that 12 correct? That's what the entry would be; is that correct? 13 A Yes, up by the name. 14 Q In fact,
before you even came a member and received 15 the Registry, you had a good idea what the entry would 16 look like because you yourself supplied information to 17 Who's Who for preparing an entry to you; is that correct? 18 A Yes. 19 Q When you got it, there were no surprises, except you 20 said it was bigger than you thought it would be; is that 21 correct? 22 A Yes. There were not any surprises. 23 Q Have you seen any other Who's Whos, in the course of 24 going to school or doing research, or whatever? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2864 Heinbaugh-recross/Trabulus
1 Q Do you recall if any were actually thicker than this? 2 A Yes.
3 Q Or maybe the entries were longer?
4 A When they grouped several years together, I think
5 they were larger.
6 Q Okay.
7 With regard to any person who
is in here, who is
8 a CEO or executive, or whatever, what is written is
9 exactly the same, whether or not they were nominated by 10 another member or became a CEO or executive because other 11 people in their business thought well enough of them to 12 have them -- to appoint them to that position; is that 13 correct, sir? 14 A It makes sense, yes. 15 MR. TRABULUS: I have no further questions. 16 MR. DUNN: Your Honor, I have questions. 17 18 RECROSS-EXAMINATION 19 BY MR. DUNN: 20 Q Good morning, sir. My name is Thomas Dunn. 21 You stated just a few minutes ago that something 22 to the effect that no one told you that this was not 23 connected with the Who's Who that you were thinking about; 24 is that correct? 25 A That's correct.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2865 Heinbaugh-recross/Dunn
1 Q Okay. 2 Do you have an Exhibit 52-H up there in front of
3 you?
4 MR. DUNN: If I can approach?
5 (Counsel approaches the witness stand.)
6 Q All right.
7 52-H is a letter from Sterling Who's Who; is that
8 correct?
9 A Yes. 10 Q Sir, the very bottom of that page, the last, below 11 the address, would you be kind enough to read that. 12 A Sterling Who's Who is not affiliated with any Who's 13 Who organization other than our own. 14 MR. DUNN: I have no further questions, your 15 Honor. 16 THE COURT: Anything else? 17 18 FURTHER REDIRECT EXAMINATION 19 BY MS. SCOTT: 20 Q Mr. Heinbaugh, the line that Mr. Dunn just had you 21 read -- 22 A Yes. 23 Q -- is that inconsistent at all with the impression 24 you had that this was the same organization that you heard 25 of?
HARR
Y RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2866 Heinbaugh-redirect/Scott
1 MR. TRABULUS: Objection. 2 THE COURT: Sustained.
3 Q What was your belief about these other organizations'
4 connection with Who's Who and Sterling Who's Who?
5 MR. DUNN: Objection, your Honor.
6 THE COURT: Sustained.
7 MS. SCOTT: Is that to form or substance, your
8 Honor.
9 THE COURT: Form, substance and otherwise. An 10 improper further redirect, because you already brought out 11 what this thoughts were. He said he thought it was part 12 of the whole Who's Who picture; is that right? 13 THE WITNESS: Yes. Who knew it was different 14 from Phoenix, etcetera. 15 THE COURT: That's the impression. He brought it 16 out, the jury heard it. 17 Q Do you remember if Mr. Trabulus asked you whether you 18 put the plaque up when you received it? 19 A Y
es, I remember. 20 Q Do you remember you testified that you took it down 21 after -- 22 A Yes, I did. 23 Sorry. 24 Q You remember you took it down you said after talking 25 to the postal inspectors?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2867 Heinbaugh-redirect/Scott
1 A Yes. 2 Q If you knew your name came from a mailing list at the
3 outset, would you have put it out on the outset, at the
4 outset?
5 MR. DUNN: Objection.
6 MR. GEDULDIG: Objection.
7 THE COURT: Overruled.
8 A At the outset I would never have ordered the
9 subscription, it wouldn't have been a question. 10 Q Do you remember Mr. Trabulus asking you certain 11 questions about people whose names appeared in the book? 12 A Yes. 13 Q Would you have been interested in using that book, if 14 the names of the people in it h
ad been taken from mailing 15 lists? 16 A No. 17 The way I would use the names in the book is if I 18 was thinking about -- 19 MR. LEE: Objection, your Honor. 20 THE COURT: Sustained. 21 The answer is no; is that correct? 22 THE WITNESS: Yes, your Honor. 23 Q Do you remember Mr. Trabulus asking you whether a 24 person's title signified to you that that person was 25 necessarily outstanding in their field?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2868 Heinbaugh-redirect/Scott
1 A Yes. I recall that question. 2 Q You testified that it did not; is that correct?
3 A Yes, I did.
4 Q Can you explain what you meant by that?
5 MR. TRABULUS: Objection, your Honor.
6 THE COURT: Why are you objecting? You asked
7 these questions, which were not really recross, but there
8 was no objection. Or else I would have sustained all of
9 the answers. Now that you opened the door to questions 10 you shouldn't have asked in the first place -- I don't 11 mean there was anything improper, but it had nothing to do 12 with the further cross-examination, but were new ideas. 13 You brought out new things. 14 MR. TRABULUS: I thought they were raised by some 15 of co-counsel, your Honor. 16 THE COURT: But I didn't. However, since there 17 was no objection, I let you go on. And it was fairly 18 interesting anyway, Mr. Trabulus. 19 MR. TRABULUS: Thank you, your Honor. 20 THE COURT: But now that you brought it out, 21 which never should have been brought out, not that it is 22 improper, but because of our archaic method of trying 23 cases, which you are very familiar with. If not, 24 Mr. Geduldig will fill you in on it, now you can pursue 25 it.
HARRY RAPAPORT
, CSR, CP, CM OFFICIAL COURT REPORTER 2869 Heinbaugh-redirect/Scott
1 MR. GEDULDIG: You give me too much credit, 2 Judge.
3 THE COURT: Okay.
4 Now let's hear about it.
5 THE WITNESS: Having a title doesn't convey any
6 special meaning, other than like a lawyer, there are lots
7 of lawyers. But if all the lawyers in New York, of all of
8 them, you were the best, that would mean something. But
9 just a title, it could be a consulting company, and I make 10 myself president. Is that impressive? No. I am still 11 the same guy. I mean, that's why the title doesn't 12 matter. 13 THE COURT: How do you figure who is the best 14 lawyer? Do you have any idea about that? 15 THE WITNESS: Is there one? 16 THE COURT: I asked for that one. 17 I have to break this up every once in a while, 18 you know. 19 Q Do you remember Mr. Trabulus a
sking you how the book 20 had value to you? 21 A Yes. 22 Q And do you remember him asking you about whether it 23 surprised you of its contents? 24 A Yes. 25 Q And do you remember testifying that there were no
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2870 Heinbaugh-redirect/Scott
1 surprises when you first saw that book? 2 A Yes.
3 Q Can you explain how the book had value to you at that
4 time?
5 A If I were looking to get into, say, another business,
6 and I went to the library, and I was interested in XYZ
7 company, and in the library I found out that Jane Smith
8 was president of XYZ company, then I would go back to the
9 directory and look up Jane Smith, to see if she was in 10 there. If she was in there, hey, I am in the book, too. 11 I might get a phone call answered by her rather than her 12 re
ceptionist. 13 That was the thought in my mind as far as 14 networking. I was never able to hook it up that way. It 15 never -- I never matched names from companies I was 16 looking at to anyone in the book. 17 Q So, if you had known at the time that Jane Smith's 18 name was taken from a mailing list, would you have been 19 interested in contacting her? 20 A No. I have books like that where people name 21 themselves authorities on the law. You can put your name 22 in a book and send it to me, as an authority on criminal 23 law. I have that. Who is to say you are an authority? 24 You do. Good for you. 25 I am in TV news. I can't just take everyone's
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2871 Heinbaugh-redirect/Scott
1 words that they are an authority. 2 MS. SCOTT: Thank you, Mr. Heinbaugh. I have no
3 further questio
ns.
4 THE COURT: On TV news, don't they have
5 commentators on television now that follow a case, and
6 after every day of a trial these commentators tell us what
7 we heard, or what we didn't hear, their view?
8 THE WITNESS: Exactly, your Honor.
9 THE COURT: That's the newest thing, yes. 10 THE WITNESS: Yes, to tell you what you think you 11 heard, but to make sure you heard it and understood it, 12 right. 13 THE COURT: I don't agree with it. 14 THE WITNESS: I don't either. 15 THE COURT: Anything else? 16 MR. TRABULUS: No, your Honor. 17 THE COURT: All right. You may step down. 18 (Whereupon, at this time the witness left the 19 witness stand.) 20 THE COURT: Call your next witness. 21 MR. WHITE: Your Honor, the government calls 22 Ellery Pierre, E L L E R Y, P I E R R E. 23 THE COURT: Raise your right hand. 24 25
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2872 1 E L L E R Y P I E R R E , 2 called as a witness, having been first
3 duly sworn, was examined and testified
4 as follows:
5
6 THE COURT: Please be seated.
7 State your full name and spell your name.
8 THE WITNESS: My name is Ellery Pierre, it is
9 spelled E L L E R Y. My last name is P I E R R E. 10 THE COURT: You may proceed. 11 MR. WHITE: Thank you, your Honor. 12 13 DIRECT EXAMINATION 14 BY MR. WHITE: 15 Q Mr. Pierre, can you tell us how old you are? 16 A 24 years. 17 Q And where do you live? 18 A Terre Haute, Indiana. 19 Q Can you tell us, are you married? 20 A No. I am engaged to soon be married. 21 Q Tell us what you do for a living? 22 A I work for Columbia House as a customer service rep. 23 THE COURT
: Columbia House? 24 THE WITNESS: Yes. 25 THE COURT: What sport of business is Columbia
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2873 Pierre-direct/White
1 House? 2 A Entertainment, mail order business.
3 THE COURT: In other words, you buy the CD from
4 Columbia House?
5 THE WITNESS: Yes.
6 THE COURT: Yes, from World War II songs, things
7 like that?
8 THE WITNESS: All sorts of CDs.
9 THE COURT: Glen Miller songs? Okay. 10 Q Now, were you subpoenaed to testify at this trial as 11 a witness? 12 A Yes. 13 Q And has the government paid your travel expenses from 14 Indiana? 15 A As I understand, yes. 16 Q Have you ever heard of a company called Sterling 17 Who's Who? 18 A Yes. 19 Q Tell us how you are familiar with Sterling Who's Who? 20 A I am a former employee.
21 Q Tell us when you worked there. 22 A I worked there the summer of '94. 23 Q And for approximately how long? 24 A Approximately three months. 25 Q At the time you worked at Sterling, were you a
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2874 Pierre-direct/White
1 student? 2 A Yes.
3 Q Did you eventually leave your employment at Sterling?
4 A Yes.
5 Q Can you tell us what the circumstances were of
6 leaving Sterling, what they were?
7 A I had decided to leave Sterling by the end of my, or
8 close to the end of my summer break. And I went on a trip
9 overseas. 10 Q Now, can you tell us where Sterling's offices were? 11 A I worked on Lexington and 59th Street, right near 12 Bloomingdales. 13 Q Manhattan? 14 A Yes. 15 Q What was your job at Sterling? 16 A My position listing was coor
dinator. 17 Q What did your position listing as a coordinator 18 involve? 19 A It involved the selling of the membership. 20 Q When you sold the membership, did you follow any 21 script? 22 A Yes. 23 Q Now, can you tell us how much you earned at Sterling? 24 A It was salary versus commission. And it varied 25 between 400 and 800 when the performance was high.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2875 Pierre-direct/White
1 Q As part of your job did you speak on the telephone 2 with potential customers?
3 A Yes.
4 Q When you did that, did you do -- use your real name?
5 THE COURT: Is there an objection?
6 MR. GEDULDIG: Not an objection, but I would like
7 a short sidebar.
8 THE COURT: All right. Come up.
9 10 (Whereupon, at this time the following took place 11 at the sidebar.)
12 MR. GEDULDIG: Judge, I don't know where 13 Mr. White is going particularly, but apparently he is 14 going to get into the operations of Sterling. And I 15 understand that Sterling is one of the co-defendants in 16 the case. But most of the defendants in this case, the 17 salespeople and the middle management people were all 18 Who's Who people. And it would seem to me, that there is 19 a bit of overlap with our people who are Who's Who people. 20 THE COURT: There are no individual defendants 21 who are Sterling salespeople? 22 MR. TRABULUS: Mr. Sterling was the president of 23 Sterling. 24 THE COURT: Okay. 25 MR. GEDULDIG: My point is that there should be
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2876 Pierre-direct/White
1 some sort of a limiting instruction, if this witness is 2 going to be testifying to Sterling, what
the government
3 considers to be Sterling violations of law, and the way
4 they operated soliciting customers and the rest.
5 MR. WHITE: My response would be the same as it
6 was to the other objection, your Honor, which at this
7 point it is against Sterling and Mr. Gordon. If your
8 Honor finds it is a conspiracy later, it would be as to
9 all the defendants. 10 MR. TRABULUS: I don't think at this point it 11 should be stated that it is attributable against 12 Mr. Gordon. I don't believe there is any basis to 13 attributing it against him. 14 THE COURT: I am going to tell the jury that this 15 is not against salespersons of Who's Who. 16 MR. GEDULDIG: As well as middle management. 17 THE COURT: I mean the employees of Who's Who. 18 MR. TRABULUS: That by implication would make it 19 admissible against Mr. Gordon. And the fact that he was 20 the pre
sident of Sterling, isn't sufficient to make it 21 admissible against him at this point, absent a 22 demonstration of conspiracy, or absent a demonstration of 23 a direct relationship between this witness and Mr. Gordon, 24 such as to make this witness the agent of Mr. Gordon. 25 THE COURT: Is he going to testify to inculpate
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2877 Pierre-direct/White
1 Mr. Gordon in this testimony? 2 MR. WHITE: He is going to say simply that
3 Mr. Gordon came to Sterling once or twice a week, and at
4 times addressed the salespeople.
5 THE COURT: But didn't address them in any --
6 MR. WHITE: He is not going to say that
7 Mr. Gordon told me to lie.
8 THE COURT: Then I will say it is against
9 Sterling at this point. 10 MR. WHITE: Okay. 11 MR. WALLENSTEIN: Make it clear, Judge, that 12 Mr. Reffsin is not involved in this part of the conspiracy 13 at all. 14 THE COURT: I will not get into that and just say 15 it is against Sterling. 16 17 (Whereupon, at this time the following takes 18 place in open court.) 19 THE COURT: Members of the jury, this testimony 20 by this witness is being introduced against the defendant 21 Sterling Who's Who, Inc. only. 22 You may proceed. 23 Q Now, Mr. Pierre, when you were on the telephone with 24 potential customers as part of your job at Sterling Who's 25 Who, did you use your real name?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2878 Pierre-direct/White
1 A No. 2 Q What name did you use?
3 A Eric Peters.
4 Q Did you receive any instructions regarding what name
5 to use?
6 A I received the instruction --
7 MR. SCHOER: Objection, your H
onor, until he
8 identifies who he received instructions from as to what
9 his instructions were. 10 THE COURT: First we have to find out if he 11 received instructions. 12 MR. SCHOER: I understand. But he started to 13 answer as to what the instructions were. 14 THE COURT: The question is: Did you receive 15 instructions as to whether you should use your real name? 16 THE WITNESS: Yes. 17 Q From whom? 18 A From Rob Lamb, L A M B, and Michael Powers. 19 THE COURT: Who were they? 20 THE WITNESS: My immediate supervisors. 21 THE COURT: Did they have titles? 22 THE WITNESS: I don't recall the title. 23 Q Now, what instruction did you receive from Mr. Lamb 24 and Mr. Powers as to whether to use your real name on the 25 telephone?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2879 Pierre-direct/White
1
MR. SCHOER: Objection. 2 MR. DUNN: Objection, your Honor.
3 THE COURT: Overruled.
4 THE WITNESS: The instructions were to use a
5 pseudo name.
6 THE COURT: Use a pseudo name?
7 THE WITNESS: Pseudo name, pardon me.
8 And use my initials to create my new name.
9 Q And what was the pseudonym that you used? 10 A Eric Peters. 11 Q Now, was there a quota on the number of sales that 12 you were required to make at Sterling? 13 A Yes. 14 Q What was the quota? 15 A I don't recall the exact figures, but it was per 16 week. 17 Q And can you tell us how this would work, how the 18 quota was enforced? 19 A We were paid a base salary versions commission. And 20 as we progressed during the week, every week our base 21 salary would be reduced somewhat to increase the 22 percentage of commission. 23 Q And with respect to the numbe
r of sales that you 24 made, how was that quota enforced? 25 A Pardon me?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2880 Pierre-direct/White
1 Q If you didn't make the requisite number of sales per 2 week, what would happen?
3 A When you did not meet quota a week, after you worked
4 there about two weeks, when you didn't start meeting
5 quota, you would be on probation for the following week.
6 And then, if you still didn't succeed in meeting that
7 quota, you would have to meet with your supervisors, and
8 they would determine if you should continue to be
9 employed. 10 Q Now, have you ever heard the term "lead card"? 11 A Yes. 12 Q Can you tell us what a lead card is? 13 A A lead card was a card that contained a name, 14 address, phone number, title, just pertinent information 15 about an individual.
16 Q And did you have information to receive lead cards in 17 your job at Sterling? 18 A Yes. 19 Q And from whom would you receive them? 20 A From Rob Lamb. 21 Q Now, once you received -- let me back up. 22 Did you receive any instructions from Mr. Lamb or 23 Mr. Powers as to what you would do with the card once you 24 received it? 25 A Yes.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2881 Pierre-direct/White
1 Q What instruction did you receive? 2 MR. LEE: Objection.
3 MR. JENKS: Objection.
4 THE COURT: Overruled.
5 A My instructions were to call the phone number on the
6 lead card, and get in touch, or attempt to get in touch
7 with the subject individual to deliver the sales pitch.
8 Q Were you ever given any instructions regarding how
9 Sterling had obtained the names of the people on these
10 cards? 11 MR. NELSON: Objection. 12 THE COURT: Overruled. 13 Q You can answer it. 14 A We were told that -- 15 THE COURT: When you say we were told -- 16 THE WITNESS: Employees. 17 THE COURT: Who told you? 18 THE WITNESS: The supervisors. 19 THE COURT: What supervisors? 20 THE WITNESS: Michael Powers and Rob Lamb. 21 THE COURT: Go ahead. 22 THE WITNESS: As employees we were informed that 23 they were mailed to those individuals to fill out. 24 Q Did you ever learn where Sterling had actually 25 obtained the names of the persons on those cards?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2882 Pierre-direct/White
1 A No. 2 Q Did you ever draw any conclusions as to where the
3 names on those cards had come from?
4 MR. JENKS: Objection.
5 MR. TRABULUS: Objection.
6 THE COURT: S
ustained.
7 Q Can you describe for us the kind of people whose
8 names were listed on those cards?
9 MR. JENKS: Objection. 10 THE COURT: Overruled. 11 A They were of different backgrounds. Some were 12 management positions. Some were blue collar employees. 13 Some were farmers. Some were priests. Even a child. So, 14 there was a wide gamut. 15 Q Now, did you have occasion to observe the number or 16 volume of cards received by Sterling? 17 A Yes. 18 Q Okay. 19 Tell us what you observed. 20 A Right in front of the desk of the supervisors was a 21 big box, somewhat of a bin in which they would bring in 22 cards wrapped up in rubberbands. 23 Q Can you describe for us the volume of the cards? 24 A The box was probably approximately three -- three 25 feet wide square, and about four feet high. Somewhat of a
HARRY RAPAPORT, CSR,
CP, CM OFFICIAL COURT REPORTER 2883 Pierre-direct/White
1 volume. When we would run out they would just replenish 2 it.
3 Q Now, to your knowledge, did anyone at Sterling review
4 or evaluate the qualifications of potential customers on
5 these cards before they were given to you?
6 A Not to my knowledge.
7 Q And tell us how you know that?
8 A Because we get cards, as I mention, of people who
9 weren't in management positions, or did not have a status 10 title. A nurse, pharmacist, veterinarian, etcetera. So 11 it didn't fulfill what the criteria that was promoted to 12 be. 13 Q Now, you said before that in your calls to customers 14 you followed a script? 15 A Yes. 16 Q Now, have you heard the term "pitch sheet" before? 17 A Yes. 18 Q Tell us what a "pitch sheet" was? 19 A A pitch sheet had the sales pitch for the membership 20 enrollment. 21 Q Have you ever heard the term objection sheet? 22 A Yes. 23 Q Tell us what an objection sheet is? 24 A It could be one page or two-pages, depending on the 25 format. And it included questions that the potential
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2884 Pierre-direct/White
1 members would regularly ask, and the answers we were 2 supposed to give them.
3 Q Now, where did you get these pitch sheets and
4 objection sheets from?
5 A They were submitted by my supervisors.
6 Q Let me show you Government's Exhibit 338 and 390, for
7 Identification.
8 (Handed to the witness.)
9 Q First of all, can you tell us if you recognize those 10 documents? 11 A Yes, I do. 12 Q What are they? 13 A They are both objection sheets. 14 Q And if you can look that 390, the pages th
at are 15 attached to 390, the last two pages of that exhibit, what 16 are they? 17 MR. TRABULUS: Excuse me, your Honor, if I may 18 just interject at this point? 19 I was unable to find any copy of those exhibits 20 in my papers. 21 Do you have them? What volume were they? 22 MR. SCHOER: They are loose. 23 THE COURT: They are not in the books? 24 MR. TRABULUS: Apparently some counsel has them 25 loose.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2885 Pierre-direct/White
1 MR. WHITE: Your Honor, I thought they were in 2 the book.
3 MR. TRABULUS: I got 388, and then I don't have
4 391; it didn't get to 391.
5 I am checking for 338. I have 338, but I don't
6 have 390.
7 (Whereupon, at this time there was a pause in the
8 proceedings.)
9 THE COURT: Do you have 390, Mr. Trabulus? 1
0 MR. SCHOER: I have it here. 11 MR. TRABULUS: I am looking on. 12 MR. WHITE: We have extra copies. 13 THE COURT: Would you give Mr. Trabulus a copy of 14 390. 15 MR. WHITE: Yes. 16 MR. JENKS: 390 is three pages? 17 MR. WHITE: Yes. 18 MR. TRABULUS: Is 338 only one page? 19 MR. WHITE: Yes. 20 MR. JENKS: I have it. 21 Q Now, the top, 338, and the top page of 390, what are 22 those? 23 A Those are objection sheets. 24 Q And the bottom two-pages of 390, what are they? 25 A They are sales pitch sheets.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 2886 Pierre-direct/White
1 Q Now, were all of these documents in use at the time 2 you worked at Sterling Who's Who?
3 A Yes.
4 MR. WHITE: Your Honor, the government offers 338
5 and 390.
6 MR. TRABULUS: A voir dire, your Honor?
7 M
R. JENKS: I would like a voir dire, your
8 Honor.
9 MR. TRABULUS: You can go first. 10 MR. JENKS: You are sure? I don't want to step 11 on your toes. 12 13 VOIR DIRE EXAMINATION 14 BY MR. JENKS: 15 Q Mr. Pierre, a few questions with respect to these 16 documents. 17 When was the last time you saw these? 18 A The last time I saw them? 19 Q Did you ever see these exhibits before you, 20 Exhibits 338 and 390? 21 A Yes. 22 Q Specifically these documents. 23 A I believe so. If they are not a copy of them. 24 Q Were there other sets of pitch sheets or objection 25 sheets at Sterling Who's Who?
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER