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20 Court Reporters: HARRY RAPAPORT
21 United States District Court
Two Uniondale Avenue
22 Uniondale, New York 11553
(516) 485-6558
24 Proceedings recorded by mechanical stenography, transcript
produced by Computer-Assisted Transcription


1 (Case called.)

2 THE COURT: Please be seated.

3 MR. DUNN: Your Honor, I have a single request,

4 if I may hand it up to you.

5 MR. TRABULUS: Your Honor, I also have some

6 further questions, relating to the tax count and the

7 lesser included.

8 Thank you. I've given copies to all counsel.

9 THE COURT: Is everybody here?

10 MR. GEDULDIG: Sorry, Judge?

11 THE COURT: Is everybody here?

12 MR. GEDULDIG: Ms. Haley appears to be among the

13 missing. I think I might have indicated before. She is

14 perfectly agreeable to proceeding without her. I don't

15 know the reason for the delay. We don't have a jury today

16 and I don't think that would be any kind of prejudice to

17 her for not appearing here during the course of the

18 conversations we'll have and she told me she would waive

19 her appearance. So I would ask the Court to proceed

20 without her. I'm sure she'll arrive shortly.

21 THE COURT: What difference -- why is this new

22 request to charge made, Mr. Trabulus, in addition to your

23 other requests?
24 MR. TRABULUS: Your Honor, one, part of it is in
25 response to or suggested by Mr. Reffsin's request to


1 charge on good faith reliance. He turned around the good

2 faith reliance on the accountant's advice to the good

3 faith reliance on the client's advice and I have here that

4 relates to good faith reliance on the accountant's advice.

5 In addition, I requested a lesser included charge

6 originally.

7 THE COURT: So it clarifies the lesser included?

8 MR. TRABULUS: Yes, it does, Your Honor.

9 THE COURT: We'll get to that.

10 MR. TRABULUS: Sure.

11 THE COURT: And I just wanted to know what the

12 additional request was for.

13 All right. Let's proceed.

14 First with regard to the boilerplate portions in

15 which I said the defendants are being charged only with

16 the crimes set forth in the indictment and no others. In

17 the event that I charge lesser included crimes, and I'm

18 considering seriously doing that, I would add crimes set

19 forth in the indictment or lesser included crimes. We'll

20 see when w e get to that.

21 Also open was the expert testimony. Was the

22 defendant Martin Reffsin an expert? Did we resolve that?

23 I think you were to tell me.
24 MR. WALLENSTEIN: I don't know if we resolved
25 that but I would withdraw that request.


1 THE COURT: Okay.

2 With regard to accomplices who pled guilty, I'm

3 not quite sure what we meant by that. Let me just see

4 here. I gave a charge on witnesses who pled guilty. I

5 added to that "government witnesses and so-called

6 accomplices" to that who pled guilty. So that covers

7 that.

8 Now, as far as the character evidence, this is

9 what I'm going to say.

10 You have heard testimony that the defendant

11 Martin Reffsin has a good reputation for honesty and

12 truthfulness in the community where he lives and works.

13 Along with all the other evidence you have heard, you may

14 take into consideration what you believe about the

15 defendant Martin Reffsin's reputation for truthfulness and

16 honesty when you determine whether or not the government

17 has proven beyond a reasonable doubt that the defendant

18 Martin Reffsin committed the crimes charged against him.

19 You will note that I omitted some portion of your

20 request to charge because looking at the cases I don't

21 find that that -- I find that that is not only not

22 required but very confusing to the jury and I don't

23 believe it is the law either. So that's what I'm going to
24 charge.
25 With respect to the request, we started on


1 conspiracy and we talked about the first count, the first

2 element of the first conspiracy to commit mail fraud and

3 the government asked me to add some portion with regard to

4 conspiracy involving secrecy, direct. "Direct proof may

5 not be available, etcetera," and I'm going to add that

6 after looking at the law as follows.

7 "In this regard you may infer its existence from

8 the circumstances in the case and the conduct of the

9 parties involved. However, since a conspiracy may be by

10 its very nature, made by its very nature be characterized

11 by secrecy, direct proof may not be available. In the

12 context of conspiracy cases actions may speak louder than

13 words." That's my amendment of what the government has

14 requested me to do.

15 All right. Now, let's get to the second element

16 in the conspiracy. That's where we left off.

17 "Membership of the conspiracy." And this of

18 course is the first Count 1, the first conspiracy to

19 commit mail fraud.

20 "In connection with the second element in the

21 conspiracy count the government must prove beyond a

22 reasonable doubt that the defendant you are considering

23 knowingly and willfully became a member of the
24 conspiracy. If you find that the government established
25 beyond a reasonable doubt that the conspiracy charged in


1 the indictment existed, you must next determine whether

2 the government proved that the defendant you are

3 considering was a member of the conspiracy. In deciding

4 whether the defendant you are considering was a member of

5 the conspiracy, you should consider whether the defendant

6 knowingly and willfully joined the conspiracy. To act

7 knowingly means to do something voluntarily and

8 deliberately and not because of mistake, negligence,

9 inadvertence or some other innocent reason." And you will

10 see that I define knowingly a number of times in this

11 charge.

12 An act is done willfully if done voluntarily and

13 intentionally and with the intent to do something that the

14 law forbids, that is to say with a bad purpose either to

15 disobey or disregard the law.

16 Intent may be inferred from conduct, the

17 surrounding circumstances and from all the evidence in the

18 case.

19 As I said, in deciding whether the defendant you

20 are considering was in fact a member of the conspiracy,

21 you should consider whether the defendant knowingly and

22 willfully joined the conspiracy.

23 Did he or she participate in it with knowledge of
24 its lawful -- unlawful -- with its knowledge of unlawful
25 purpose and with the specific intention of furthering its



1 business or objectives. While proof of a financial

2 interest in the outcome of the scheme is not essential, if

3 you find that the defendant had such an interest, that is

4 a factor which you may properly consider in determining

5 whether or not the defendant was a member of the

6 conspiracy charged in the indictment.

7 As I mentioned a moment ago before the defendant

8 you are considering can be found to have been a

9 conspirator, you must first find that he or she knowingly

10 and willfully joined in the unlawful agreement or plan.

11 The key question therefore is whether the

12 defendant joined the conspiracy with an awareness of at

13 least some of the basic aims and purposes of the unlawful

14 agreement.

15 It is for you to note that the defendant's

16 participation in the conspiracy must be established by

17 independent evidence of his or her own acts or statements

18 as well as those of the other alleged co-conspirators and

19 the reasonable inferences which may be drawn from them.

20 A defendant's knowledge may be a matter of

21 inference from the facts proved. In that connection I

22 instruct you that to become a member of the conspiracy the

23 defendant need not have known the identity of all the
24 members, nor need he or she have been fully informed as to
25 all of the details, or the scope of the conspiracy in


1 order to justify an inference of knowledge on his or her

2 part.

3 Furthermore, the defendant need not have joined

4 in all of the conspiracy's unlawful objectives and

5 activities. The extent of a defendant's participation has

6 no bearing on the issue of a defendant's guilt. A

7 conspirator' s guilt is not measured by the extent or

8 duration of his or her participation. Indeed, each member

9 may perform separate and distinct acts and may perform

10 them at different times. Some conspirators play major

11 roles, while others play minor parts in the scheme. The

12 law does not require an equal role. Even a single act may

13 be sufficient to draw the defendant within the ambit of

14 the conspiracy.

15 A person need not have been a member of the

16 conspiracy from its very start to be a co-conspirator.

17 The defendant may have joined at any point during its

18 progress.

19 I want to caution you, however, that a

20 defendant's mere presence at the scene of the alleged

21 criminal activity does not by itself make him or her a

22 member of the conspiracy. Similarly, mere association

23 with one or more members of the conspiracy does not
24 automatical ly make a defendant a member. A person may
25 know, be related to, or befriending with, or work with a


1 criminal without being a criminal himself or herself. The

2 fact that they may have been together and discussed common

3 aims and interests does not necessarily establish proof of

4 the existence of a conspiracy or knowing membership in the

5 conspiracy.

6 I also want to caution you that mere knowledge or

7 acquiescence -- what is happening now?

8 MS. SCOTT: Your Honor, I just handed out an

9 additional instruction we will request. We will get to

10 it.

11 THE COURT: Why don't you put it down for the

12 time being. I want your undivided attention on this.

13 This is very important and I don't want it interrupted by

14 anything.

15 I want to caution you that mere knowledge or

16 acquiescence without participation in the unlawful plans

17 is not sufficient. Moreover, the acts of a defendant

18 without knowledge merely happen to further the purposes or

19 objectives of the conspiracy does not make the defendant a

20 member. More is required under the law.

21 What is necessary is that the defendant must have

22 participated with knowledge of at least some of the

23 purposes or objectives of the conspiracy, and with the
24 intention of aiding in the accomplishment of those lawful
25 objectives.


1 In sum, a defendant with an understanding -- let

2 the record indicate that Ms. Haley has advised at 9:17

3 a.m.

4 Do you want to ask Ms. Haley if it is all right

5 to have proceeded in her absence?

6 MR. GEDULDIG: You want me to ask her?


8 MR. GEDULDIG: I told the Court that you

9 previously had told me you had no objection to proceeding

10 in court with respect to the charge conference.

11 THE DEFENDANT HALEY: Yes, it is all right.

12 MR. NELSON: Your Honor could you possibly read

13 back to the last three lines, you indicate the lawful

14 purpose, and I believe you may have misspoke.

15 THE COURT: What is necessary is that the

16 defendant may have anticipated with knowledge of at least

17 some of the purposes or objectives of the conspiracy and

18 with the intention of aiding with respect to the

19 accomplishment of those unlawful objectives.

20 MR. NELSON: Thank you.

21 THE COURT: In sum, a defendant with the

22 understanding of the unlawful character of the conspiracy

23 must have occasionally engaged, advised, or assisted in it
24 for the purpose of furthering the illegal undertaking. He
25 or she thereby becomes a knowing participant in the


1 unlawful agreement. That is to say, a conspirator.

2 The third element that the government must prove

3 beyond a reasonable doubt to establish the crime of

4 conspiracy is that at least one of the overt acts charged

5 in the indictment was knowingly committed by at least one

6 of the conspirators -- at least one of the conspirators

7 at or about the time and place alleged.

8 Count 1 of the indictment charges that the

9 following overt acts were committed in the Eastern

10 District of New York and elsewhere. And then I will read

11 that paragraph with the overt acts.

12 Have you got the amended indictment?

13 MS. SCOTT: I am doing it, your Honor.

14 THE COURT: I would like to have it today

15 sometime.

16 MS. SCOTT: You will, your Honor.

17 THE COURT: In order for the government to

18 satisfy this element, it is not required that all of the

19 overt acts alleged in the indictment be proven. Rather,

20 the government is only required to prove the commission of

21 at least one overt act as alleged in count one of the

22 indictment in furtherance of the conspiracy.

23 Similarly, you need not find that the defendant
24 you are considering committed the overt act. It is
25 sufficient for the government to prove that one of the


1 conspirators knowingly committed a single overt act in

2 furtherance of the conspiracy, since such an act becomes

3 in the eyes of the law the act of all the members of the

4 conspiracy.

5 You are further instructed that the overt act

6 need not ha ve been committed at precisely the date alleged

7 in the indictment. It is sufficient if you are convinced

8 beyond a reasonable doubt that it occurred at or about the

9 date and place stated. You must also find that the overt

10 act occurred during the course of the conspiracy.

11 Finally, you must find that at least one of the

12 overt acts was committed in the Eastern District of New

13 York, which includes, Staten Island, Brooklyn, Queens,

14 Nassau and Suffolk Counties.

15 The fourth and final element which the government

16 must prove beyond a reasonable doubt with regard to the

17 conspiracy charged in Count 1 is that the overt act was

18 committed for the purpose of carrying out the unlawful

19 agreement alleged in Count 1 of the indictment.

20 In order for the government to satisfy this

21 element, it must prove beyond a reasonable doubt that at

22 least one overt act was knowingly and willfully done by at

23 least one conspirator in furtherance of at least one of
24 the objects or purposes of the conspiracy as charged in
25 the indictment.


1 In this regard you should bear in mind that the

2 overt act standing alone may be an innocent lawful act.

3 Frequently, however, an apparently innocent act sheds its

4 harmless character if it is a step in carrying out,

5 promoting, aiding, or assisting the conspiratorial

6 scheme.

7 You are, therefore, instructed that the overt act

8 does not have to be an act which in and of itself is

9 criminal, or constitutes an objective of the conspiracy.

10 However, it must be an act which follows and tends toward

11 accomplishment of the plan or scheme and must be knowingly

12 done in furtherance of some object or purpose of the

13 conspiracy charged.

14 Now, there is a request for me to charge on

15 multiple conspiracies, and I am going to charge that as

16 follows:

17 I will now address the issue of whether the

18 government has proved a single conspiracy in Count 1, or

19 two or more separate and independent conspiracies.

20 Whether there existed a single conspiracy or two or more

21 separate and independent conspiracies is a question of

22 fact for you, the jury, to determine in accordance with

23 the instructions I am about to give you.
24 The defendants contend that the evidence
25 establishes two separate conspiracies.


1 Instead of "establishes" let's say that the

2 evidence -- that's what I was requested to charge,

3 establishes.

4 The defendants contend th at the evidence

5 demonstrates --

6 MR. TRABULUS: May I suggest that the defendants

7 contend that if the evidence demonstrates a conspiracy at

8 all, it demonstrates the existence of two or more

9 conspiracies, something along those lines. Not that we

10 concede there is a conspiracy.

11 THE COURT: I am following the charge given to me

12 by the defendant Reffsin, I believe.

13 MR. WALLENSTEIN: That must be Norman's.

14 MR. NELSON: I asked for that in the second page

15 of the charge where I actually state that the defendants

16 contend if the evidence is accredited, credited, such

17 evidence establishes two separate conspiracies.

18 THE COURT: Then I took it from somewhere else.

19 Let me see where you say it?

20 MR. NELSON: The next to the last paragraph in

21 request 4 on the second page of that request, Judge.

22 See if this is all right.

23 The defendants contend if the -- I don't like
24 that other.

Whheewww!! This goes on for days and days, weeks and weeks,and even into the months.
And yet, you never heard a word, did you?

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Sixteen weeks of oft-explosive testimony, yet not a word in any of 1200 news archives. This alone supports the claim that this was a barely sustainable trial; in fact, one of the dirtiest federal trials of the 20th century.

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The Tragic Crushing of Who's Who Worldwide Registry
Thomas FX Dunn working hard to prove himself most execrable attorney of all time

Dirtiest Trials Of The Decade   - this disgusting example of jurisprudence gone bad,
The Tragic Crushing of Who's Who Worldwide Registry

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one of the dirtiest trials of the past century.
Perhaps there's something to these shortcuts of masters and millionaires.