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8834


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
8836

1 M O R N I N G S E S S I O N 2 3 (Whereupon, the following takes place in the
4 absence of the jury.)
5 THE COURT: Everybody here?
6 MR. DUNN: My client had a problem with a tooth.
7 He was at a dentist at 7:30 this morning. He should be
here shortly. But he explained to me and he wanted me to
9 tell you that it is okay to proceed.
10 THE COURT: He waives his presence and 11 understands he has a right to be here? 12 MR. DUNN: Yes, your Honor. 13 THE COURT: Going over the open matters now. 14 I revised the multiple conspiracy charge to 15 reflect the language that we discussed. Namely, if the 16 government establishes beyond a reasonable doubt that the 17 conspiracy, a conspiracy existed, the government must 18 prove that it is the single conspiracy alleged in the 19 indictment, etcetera. 20 Now, with respect to the Pinkerton charge, I have 21 somewhat revised the government's submission, which is the 22 Sand instruction, 19-13, as follows: There is another 23 method by which you may evaluate the possible guilt of all 24 the defendants other than the defendant Martin Reffsin -- 25 this having to do only with the mail fraud -- for the
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 8837
1 substantive mail fraud charges in the indictment, even if 2 you do not find that the government satisfied its burden 3 of proof with respect to each element of the substantive 4 crime. If in light of my instructions you find beyond a 5 reasonable doubt that the defendant you are considering 6 was a member of the conspiracy charged in Count 1 of the 7 indictment and thus, guilty of the criminal charge, then you may also, and you are not required to -- and I 9 underlined this in the charge, then you may also, but are 10 not required to find him or her guilty of the substantive 11 mail fraud crime charged against him or her, provided you 12 find beyond a reasonable doubt each of the following five 13 elements. 14 First, that the mail fraud crime charged in the 15 substantive count was committed. 16 Second, that the person you find, person or 17 persons you find actually committed the charge were 18 members of the conspiracy you found existed. 19 Third, that the substantive crime was committed 20 pursuant to the common plan and understanding you found to 21 exist among the conspirators. 22 Fourth, that the defendant you are considering 23 was a member of that conspiracy at the time the 24 substantive crime was committed. And I am underlining 25 that also.
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8838

1 Fifth, that the defendant you are considering 2 could have reasonably foreseen that the substantive crime 3 might be committed by his co-conspirators. 4 If you find all five of these elements to exist 5 beyond a reasonable doubt, then you may find the defendant 6 you are considering guilty of the substantive mail fraud 7 crime charged against him or her, although he or she did not personally participate in the acts constituting 9 the crime, or did not have actual knowledge of it. 10 The reason for this rule is simply that a 11 co-conspirator who commits a substantive crime pursuant to 12 a conspiracy is deemed to be the agent of the other 13 conspirators. Therefore, all of the conspirators who were 14 members of the conspiracy at the time the substantive 15 crime was committed must bear criminal responsibility for 16 the commission of the substantive crimes. 17 If, however, you are not satisfied as to the 18 existence of any of these five elements, then you may not 19 find the defendant guilty of the substantive crime, unless 20 the government proves beyond a reasonable doubt that the 21 defendant personally committed, or aided and abetted the 22 commission of the substantive crime charged. 23 I will leave the lesser included for the time 24 being and get back to it. 25 The reliance charges. I am going to charge the

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8839

1 reliance charges by both the defendant Gordon and the 2 defendant Reffsin on the Tevya theory. 3 Is that similar to the res ips loquitur? No, it 4 is not. 5 MR. TRABULUS: Are you going to strike the other 6 charge, your Honor, the one we talked about. 7 THE COURT: I am going to charge exactly as you set it forth in your request, your second request to the 9 charge. 10 MR. TRABULUS: My concern with respect to the
11 Reffsin charge, the second paragraph, on the other hand -- 12 I think we talked about crossing out, on the other hand, 13 you are persuaded beyond a reasonable doubt that because 14 that can shift the burden. 15 THE COURT: Right. Correct, that comes out.
16 That portion comes out. 17 Now, as to the three defendants not in the 18 conspiracy during the periods of time, I have accepted -- 19 let's take Osman first, I have added to it. For example, 20 it says, if you find that the government proved beyond a 21 reasonable doubt the existence of the single conspiracy 22 alleged in count one of the indictment, I instruct you as 23 a matter of law the defendant Oral Frank Osman cannot 24 found to be a member of the conspiracy. And I added, or 25 guilty of the subsequent mail fraud counts.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8840

1 MR. NELSON: Thank you, your Honor. 2 THE COURT: For the period of time. Correct? 3 MR. NELSON: Yes. 4 THE COURT: And then I add at the end, the 5 verdict sheet will set forth the names of each defendant 6 you will consider with regard to the mail fraud counts, 7 two through 52. MR. NELSON: That's acceptable, your Honor. 9 THE COURT: Then for I also added 10 the same thing I instruct you as a matter of law the 11 defendant The Wizard, cannot be found to be a matter -- 12 guilty of the conspiracy or any of is substantive counts 13 before March of 1994 since he was not employed before that 14 date. And also, he cannot be found to be a member of the 15 conspiracy, or guilty of the mail fraud counts for the 16 period of time after March 17th, 1995. 17 Mr. Jenks, as far as the defendant Sterling Who's 18 Who. 19 MR. JENKS: Yes, your Honor. 20 THE COURT: The same thing with Sterling, 21 Mr. Jenks. Can't be guilty of the substantive mail fraud 22 count. 23 MR. JENKS: The verdict sheet seems to sort of 24 explain that. 25 THE COURT: I wanted to explain it anyway.
H ARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 8841
1 MR. JENKS: Yes. 2 THE COURT: That leaves the interesting subject 3 of the lesser included counts. 4 I have checked the law to the extent I could -- 5 of course, I can't keep up with Ms. Scott, but I try 6 because I have more help than she has. And as to the 7 Starnas, S T A R N A S, there is an interesting case that came back after -- came down after Starnas, and the point 9 is, should the jury be instructed that they must find the 10 defendant not guilty before they go to the lesser 11 included? Or should the jury be instructed that either 12 they find the defendant not guilty, or they are unable to 13 agree on a verdict. 14 Now, I happen to have written an opinion in the 15 Appellate Division -- I don't remember what it was or 16 when -- in which I soundly criticized the Starnas case. 17 And we were affirm by the New York Court of Appeals, but 18 we say in the state court it has nothing to do with this. 19 And I want to put on the record I am not a state court 20 judge. I don't have any state court leanings. I forgot 21 everything I learned in the state court. Please put that 22 on the record. But in the opinion I wrote I said that the 23 People have a right to get a decision on the main count 24 which they put in the indictment, which they tried to 25 prove, to put all their resources behind to prove that

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8842

1 count, not anything else, just that. And I said they have 2 a right to get an up or down decision on that. 3 Now, Judge Friendly did not agree with that. And 4 that was way before my time. But in a case called United 5 States against Torres, T O R R E S, decided many years 6 after Starnas, and the citation is 901 F.2d 205, Second 7 Circuit, 1990, cert. denied, 498 U.S. 906, and the Second Circuit again took up the interesting question. 9 The defendant contended in Torres, that in 10 accordance with Tsanas, he sought an instruction that -- 11 the judge in this I believe was Judge Mahoney who wrote 12 this, said in reviewing Starnas it calls for the Court to 13 instruct the jury to consider the greater offense first, 14 and then charge either, one, that it should consider the 15 lesser offense only, if it unanimously acquitted on the 16 greater; or, two, it should consider the lesser offense if 17 it could not agree on the greater. We added that neither 18 charge was wrong as a matter of law, but that the 19 defendant's preference should be honored upon request. 20 In this case the defendant made a request that 21 there be a unanimous decision on the main count, that 22 there be an acquittal before you go down to the lesser. 23 Then there was some talk about a special 24 interrogatory, which the Second Circuit said, don't use. 25 This is the interesting part of this decision,
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 8843
1 and it is a field of law that is up in the air in the 2 federal court. It is about time that they took another 3 look at it. I am not suggesting that this case be the 4 vehicle for it, but listen to what the Second Circuit said 5 in 1990. 6 Quote, in any event, we do not believe that any 7 error which may have occurred in the District Court's instruction calls for reversal. As the foregoing recital 9 should make clear, this is a difficult and unsettled area 10 of the law, end quote. 11 I am going to charge the jury that they have to 12 acquit on the tax evasion before they may consider the 13 lesser included. I think that that is the proper rule of 14 law. It prevents compromises which we should not 15 tolerate. And that's what I am going to charge. 16 MR. TRABULUS: Your Honor, for the record, I 17 would except. 18 As I submitted the further request to charge 19 yesterday there was a drafting error. And as I submitted 20 it to you it left out the fact that the jury could 21 consider the lesser after acquitting. The one that I 22 submitted today on 7207 contains the correct language. 23 And I want to clarify what I would be requesting, and I 24 know your Honor has denied it. 25 It should read, and it is the final paragraph on

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8844

1 page 2 of the defendant Gordon's further request to 2 charge. 3 THE COURT: Is this your second or third? 4 MR. TRABULUS: The second one, the one I handed 5 up yesterday. The last sentence on the second page, after 6 the words "if you," the first two words, there should have 7 been included "unanimously find the defendant Bruce Gordon not guilty of tax evasion, or if you -- then it goes back 9 to the text. 10 The complete sentence would read: If you 11 unanimously find the defendant Bruce Gordon not guilty of 12 tax evasion, or if you should, after all reasonable 13 efforts be unable to reach a unanimous verdict on tax 14 evasion, you may then proceed to determine whether the 15 defendant has been proven guilty of the lesser offense of 16 willful failure to pay a tax when due. 17 Thank you. 18 THE COURT: All right. 19 With respect to the lesser included, this is 20 what -- first of all, Mr. Wallenstein, have you decided 21 whether you are entitled to it? 22 MR. WALLENSTEIN: I may be entitled to it, but I 23 don't want it, particularly if they have to find him first 24 not guilty on the first charge, and I will settle with 25 that.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8845

1 THE COURT: I am a little confused myself on your 2 last request to charge, the one received this morning. 3 In your second request to charge where you raised 4 the lesser included, you say there is -- 5 MR. TRABULUS: What page? 6 THE COURT: Where you talk about 7203, and you 7 say failure to pay tax.
MR. TRABULUS: Willful failure to pay tax. 9 THE COURT: Yes.
10 7203 says that any person required by this title 11 or by regulations or authority thereof to -- requires to 12 make a return or willfully fails to make a return -- 13 MR. TRABULUS: You have to continue. 14 THE COURT: You mean the latter part of the 15 statute? 16 MR. TRABULUS: Yes. 17 THE COURT: I have to take a look at it. So hold 18 on for now. 19 I see now. I read this from another charge. 20 MR. TRABULUS: There is no Sand charge for this 21 arrangement. 22 THE COURT: I know that. And that's why I asked 23 you for help, Mr. Trabulus. 24 MR. TRABULUS: Yes. 25 THE COURT: Here is what I am going to charge on

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8846

1 the lesser included. 2 To get it straight again, the two lesser included 3 are filing a false tax return and willfully failing to pay
4 tax. 5 MR. TRABULUS: False document. I don't think it
6 should be a return. 7 THE COURT: The document being -- MR. TRABULUS: The document being some document 9 fi led in connection with the offer in compromise or the 10 offers in compromise. 11 THE COURT: What documents were those? 12 MR. TRABULUS: It is a whole bunch. I don't 13 think it should be a return. That would be wrong. 14 MS. SCOTT: The filing of a false return is a 15 felony, which is also charged. 16 THE COURT: All right. 17 Let's see if I have it here, and you can listen 18 to this and give me any corrections you want. 19 Lesser included offenses. 20 The law permits the jury to find the accused 21 guilty of any lesser offense, which is necessarily 22 included in the crime charged in the indictment. In this 23 case tax evasion. 24 Whenever such a course is consistent with the 25 facts found by the jury from the evidence in the case, and

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8847

1 with the law given and the instructions of the Court, if 2 the jury should unanimously find the accused not guilty of 3 the crime charged in Count 57, while finding Bruce Gordon 4 not guilty of the crime charged in Count 57 of the 5 indictment, namely, tax evasion, then you must proceed to 6 determine whether the guilt of the defendant has been 7 proven as to the lesser offenses which are necessarily included in the crime charged. The crime of willfully 9 attempting to evade or defeat a tax, which is the crime 10 charged in Count 57 of the indictment, necessarily
11 includes the lesser offenses of filing a false tax 12 document, and willful failure to pay tax when due, the 13 elements of which I shall now describe to you. 14 Filing of a false tax document. Section 7207 of 15 Title 26 of the United States Code provides as follows: 16 Any person who willfully delivers or discloses to the 17 Secretary of the Treasury any list, return, account, 18 statement or other document known by him to be fraudulent 19 or to be false as to any material matter shall be guilty 20 of an offense against the United States. 21 In considering this offense -- with regard to 22 this offense you should consider it independently of -- I 23 don't want to use "consider" twice. 24 See if you have any objection to this: With 25 regard to this offense you should consider it
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER 8848
1 independently of your review of the lesser included 2 offense of willfully failing to pay a tax when due. The 3 two lesser included offenses are independent of one
4 another and your verdict may properly be not guilty on 5 both, not guilty on one lesser include offense and guilty 6 on the other; or guilty on both lesser included offenses, 7 depending which course is consistent with the facts you find from the evidence in the case, and with the law given 9 and the instructions of the Court. 10 I shall now describe to you the elements of 11 filing a false document with the Internal Revenue Service 12 in violation of Section 7207 of the Internal Revenue 13 Service. 14 I have taken your instructions. I find they are 15 correct and I am adopting them, since I couldn't find 16 anything else. That's strange. 17 MR. TRABULUS: Yes. 18 THE COURT: Section -- I have already said what 19 the section provides. 20 I instruct you that filing a document with the 21 Internal Revenue Service constitutes delivery or 22 disclosure of that document to the secretary of the 23 treasury. 24 In order for the government to establish the 25 charge of filing a false document with the Internal

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8849

1 Revenue Service, it must establish beyond a reasonable 2 doubt each of the following two elements. 3 First, that the defendant Bruce Gordon filed a
4 document with the Internal Revenue Service which he knew
5 to be fraudulent or false as to a material matter;
6 Second, that the defendant Bruce Gordon did so
7 willfully; that is as a voluntary and intentional
violation of a known legal duty.
9 It is not necessary that the government be
10 deprived of the payment of any tax by reason of the filing
11 of the document, or that the document was filed with the 12 intent of evading the payment of any tax. 13 The time of the offense would have to be included 14 within the same time period as alleged in the tax evasion 15 counts. 16 The document or documents filed would have to

17 have been filed in connection with the offer in compromise 18 or the amended offer in compromise. 19 Therefore, if the government establishes beyond a 20 reasonable doubt that the defendant Bruce Gordon filed a 21 false or fraudulent document with the Internal Revenue 22 Service, knowing it to be such as to a material matter, 23 and he did so willfully in the deliberate violation of a 24 known legal duty, and not as a result of accident or 25 negligence, then you would have a sufficient basis on

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8850

1 which to convict him of that offense. 2 The second lesser included, willful failure to 3 pay tax when due.
4 I shall now instruct you as to the elements of
5 willful failure to pay tax when due.
6 In order for the government to prove the charge
7 of willful failure to pay tax when due, it must establish
beyond a reasonable doubt each of the following three
9 elements:
10 First, that at the time of the alleged offense
11 the defendant Bruce Gordon owed a federal tax that was 12 then due. That tax would have to be the same tax that is 13 alleged in the tax evasion count -- taxes representing an 14 income tax liability of Bruce Gordon from the years 1981 15 through 1990 at the time of the offense would also have to 16 be included within the same time period as alleged in the 17 tax evasion count. 18 Secondly, that the defendant Bruce Gordon did not 19 pay that tax at that time. 20 Third, that the defendant Bruce Gordon failed to 21 pay that tax knowingly and willfully. 22 An omission to act is done knowingly and 23 willfully if it is purposeful and willful, and not because 24 of mistake, accident, negligence, inability to perform the 25 act or other innocent reason.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8851

1 A failure to act is done willfully, if it is a 2 voluntary and intentional violation of a known legal duty. 3 Therefore, if the government establishes beyond a
4 reasonable doubt that the defendant Bruce Gordon knew that
5 he had taxes which were then due, owed taxes which were
6 then due and he intentionally failed to pay them, and not
7 as a result of accident, negligent, or financial inability
to pay, then he would have willfully failed to pay taxes
9 when due, and you would have a sufficient basis on which
10 to convict him of that offense.
11 MR. TRABULUS: Your Honor, on that same further 12 request to charge that I filed yesterday, beginning on the 13 first page, there was material in bold type which 14 distinguishes tax evasion from willful omission to pay a 15 tax that is due, and sets forth the difference between tax 16 evasion which requires an affirmative active evasion, and 17 a failure to pay tax when due, it simply has the omission 18 to pay the tax. 19 I think it is important that that language, or 20 language that is substantially the same import, be 21 charged, so the jury understands that tax evasion requires 22 an affirmative act of evasion. 23 THE COURT: I will charge it. I agree. You are 24 referring to the matter in bold type? 25 MR. TRABULUS: Right.

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8852

1 THE COURT: And it goes to the middle of the 2 second page? 3 MR. TRABULUS: That's right.
4 THE COURT: Very well.
5 Anything else?
6 Now, I have --
7 MR. NELSON: Your Honor, over the evening I was
reviewing some of my notes, and there is one other request
9 to charge I would ask of the Court, and that's with
10 respect to judicial notice, Sand's 5-5. I asked the Court
11 to take judicial notice of the existence of the statute 12 under McKinney's law -- 13 THE COURT: I have not understood the first part, 14 judicial notice on what? 15 MR. NELSON: 5-5, the statute is McKinney's 16 Consolidated Law, McKinney's General Business Law, Section 17 396M, subdivision 3(b), as in Boy. 18 THE COURT: Have you got it there? 19 MR. NELSON: Yes, I do, your Honor. 20 THE COURT: Can I see it? 21 (Handed to the Court.) 22 THE COURT: That's the one about the 30-day 23 delay. 24 MR. NELSON: Yes, and the Court took judicial 25 notice on page 4,688 of the transcript during the

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8853

1 examination of Mr. West. 2 THE COURT: I will do that. 3 MR. NELSON: Thank you.
4 THE COURT: Anything else?
5 MR. NELSON: No, your Honor.
6 THE COURT: I wanted to ask counsel, Mr. Trabulus
7 and Mr. White, how to put the lesser included offenses in
the verdict sheet. And my idea is as follows: After I
9 put the tax evasion.
10 After Count 57, alleged evasion of payment of
11 tax, I will have to put that in the event the jury finds 12 the defendant Bruce Gordon not guilty of Count 57, you are 13 to answer -- you are to determine the two lesser included 14 offenses listed immediately below, something like that. 15 MR. TRABULUS: Your Honor, in light of your 16 Honor's ruling on the Starnas request that sounds correct, 17 and I say that without waiving my Starnas exception. 18 THE COURT: What do you think of that, 19 Mr. White? 20 MR. WHITE: That's fine, your Honor. 21 THE COURT: Anything else before we bring in the 22 jury when they get here? All ready to go? You are all 23 set, Mr. White? 24 MR. WHITE: I am ready, your Honor. 25 THE COURT: Are you sufficiently alert and a good

HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8854

1 night's sleep and all of that? 2 MR. WHITE: I am alert. I wouldn't say I had a 3 good night sleep though.
4 Can I ask, your Honor, are we planning to take a
5 break at 11:00 o'clock?
6 THE COURT: Yes.
7 What I propose to do is to tell the jury what
will happen, the order of summations, which I am going to
9 get right now.
10 I am going to tell the jury the order of
11 summations which I will confirm with you now, so make sure 12 there is no change. 13 The government's initial, or summation in 14 chief -- I will tell them that the government has a15 rebuttal summation also -- followed by the defendant 16 Martin Reffsin by John Wallenstein, the defendant Tara 17 Garboski by Gary Schoer, the defendant Who's Who and 18 Sterling Who's Who Who's Who by Edward Jenks, the 19 defendant Oral Frank Osman by Alan Nelson, the defendant 20 The Wizard, by Thomas Dunn, the defendant Annette Haley by 21 Martin Geduldig, the defendant Laura Weitz by Winston Lee, 22 the defendant Scott Michaelson by James Neville, the 23 defendant Bruce Gordon by Norman Trabulus, followed by the 24 government's rebuttal. 25 Any objection to my telling the jury that?


HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
8855


1 MR. TRABULUS: No. 2 THE COURT: All right. 3 The jurors have all not arrived. As soon as they
4 are here we will start. They are filling out their menus

5 now, as a matter of fact.


Yes, this went on for days and weeks and months; all about Gordon and IRS and Reffsin and no mention at all of the sales defendants.
Yet, still no separation of trial. Wha a travesty of justice.

Truly one of the Questionable federal trials.


To continue this disturbing example of poor jurisprudence and the omnipresent power game,,
here is a full version of Mar 24th transcript here


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The Who's Who Worldwide Registry websites are focused on this disgusting example of jurisprudence gone bad,
The Tragic Crushing of Who's Who Worldwide Registry, and the double scandal of government and judicial corruption in one of the Dirtiest Trials Of The Decade and the concomitant news media blackout regarding this incredible story.

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.

Show your support for justice, for exoneration of the innocent, and for that all-important government accountability, by urgently contacting your Senator, the White House, and the U.S. Department of Justice.



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


FOOTNOTE OF FOOTNOTES!...
Hundreds of thousands of people visit the websites currently producing
growing thousands of cups of food PER DAY to feed starving people,
websites, created by the same hands that brought you this really offensive trial,
one of the dirtiest trials of the past century.
Perhaps there's something to these shortcuts of masters and millionaires.