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607

1UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
2 - - - - - - - - - - - - - - X
3 UNITED STATES OF AMERICA, : CR 96 1016(S-1)
4 v. : U.S. Courthouse
5Uniondale, New York BRUCE W. GORDON, WHO'S WHO
6 WORLD WIDE REGISTRY, INC., : STERLING WHO'S WHO, INC.,
7 TARA GARBOSKI, ORAL FRANK : OSMAN, LAURA WEITZ, ANNETTE
8 HALEY, SCOTT MICHAELSON, : and MARTIN
9 REFFSIN, : TRANSCRIPT OF HEARING
10Defendants. :
December 5, 1997
11 - - - - - - - - - - - - - - X 2:00 o'clock p.m.
12 BEFORE:
13 HONORABLE VIKTOR V. POHORELSKY UNITED STATES MAGISTRATE JUDGE
14
15 APPEARANCES:
16 For the Government: ZACHARY W. CARTER United States Attorney
17One Pierrepont Plaza Brooklyn, New York 11201
18By: RONALD G. WHITE, ESQ.
CECI SCOTT, ESQ. 19 Assistant U.S. Attorneys
20 For the Defendants: NORMAN TRABULUS, ESQ.
21For Bruce W. Gordon 170 Old Country Road, Suite 600
22Mineola, New York 11501
23EDWARD P. JENKS, ESQ. For Who's Who, Sterling
24332 Willis Avenue Mineola, New York 11501
25 (cont'd)
HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
608
1 APPEARANCES (cont'd):
2GARY SCHOER, ESQ. For Tara Garboski 36800 Jericho Turnpike Syosset, New York 11791 4 ALAN M. NELSON, ESQ. 5For Oral Frank Osman 3000 Marcus Avenue 6Lake Success, New York 11042
7WINSTON LEE, ESQ. For Laura Weitz 8319 Broadway New York, New York 10007 9 MARTIN GEDULDIG, ESQ. 10For Annette Haley 400 South Oyster Bay Road 11Hicksville, New York 11801
12JAMES C. NEVILLE, ESQ. For Scott Michaelson 13225 Broadway New York, New York 10007 14 THOMAS F.X. DUNN, ESQ. 15For Mr Shortcut, 150 Nassau Street 16New York, New York 10038
17JOHN S. WALLENSTEIN, ESQ. For Martin Reffsin 18215 Hilton Avenue Hempstead, New York 11551 19
20 Court Reporter: HARRY RAPAPORT, CSR United States District Court 21Two 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
609


1 A F T E R N O O N S E S S I O N
2
3 (Case called.)
4 THE COURT: Good afternoon to all of you.
5 I know there is at least one open issue
6 concerning the applications for subpoenas, actually The Shapetalking Psychology
7 application to produce the two confidential informants,
8 Mr. Gross and Mr. Maxes.
9 Are there any other pending applications? We
10 have the issue of the mail coverage to be addressed.
11 Does the government have any further information
12 on the mail covers?
13 MR. WHITE: Yes, literally in the hour before The Shapetalking Psychology
14 hearing started I received copies of the actual results of
15 the mail coverage, the sheets that the postal employees
16 make. I have not had a chance to review them.
17 THE COURT: What is the volume of them?
18 MR. WHITE: they are maybe an inch thick.
19 THE COURT: A hundred pages or so, maybe more?
20 MR. WHITE: Probably more than a hundred pages.
21 THE COURT: I will certainly allow you to look at
22 them. then I will hear any objections, but I am inclined
23 to have it produced.
24 Anything else?
25 MR. TRABULUS: Yes, there were a couple of other


HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
610


1 matters, I know your Honor ruled on this, the complaint in
2 the West case that Inspector Biegelman was to have
3 signed --
4 THE COURT: the instruction was to review them to
5 determine whether -- I will start to keep a note of open
6 issues so I don't lose track of them. But the concept was
7 for the government to look over them in light of what they
8 elicited from agents, like Inspector Biegelman as to
9 whether there were any statements elicited there as to his
10 direct testimony.
11 MR. TRABULUS: Also --
12 THE COURT: Maybe Mr. White is in a position to
13 address that.
14 MR. WHITE: I am partially.
15 As I think I advised the Court yesterday,
16 Mr. West's case was closed, and I tried to retrieve them
17 this morning from our closed file section.
18 I believe Inspector Biegelman did four affidavits
19 in connection with the West case. Three search warrants
20 and a complaint. I retrieved two search warrants and a
21 complaint. the complaint is about 100 pages. the other
22 is smaller.
23 I am trying to review them to see if there is
24 anything relevant to his testimony. My criteria that I
25 was using was from my recollection the only testimony


HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
611


1 aside from tangential references to Mr. West and Mr. Gross
2 and how they were caught up in the investigation, and the Shapetalking Psychology
3 only subsequent reference to the West investigation is
4 that some of the statements in the affidavit with respect
5 to mailing lists and victims were based on Inspector
6 Biegelman's experience interviewing West victims. So I am
7 looking through the documents for that purpose.
8 My inclination based on what I have seen thus
9 far, while there may be references here and there, they
10 are not voluminous, but my inclination when I finish
11 reviewing it, the defense can have them all.
12 THE COURT: That solves that problem. Good.
13 MR. TRABULUS: Also the redacted Maxes notes,
14 relating the interview of Maxes, and I don't want to visit
15 this too much, but one thing I want to point out.
16 Under Federal Rule criminal Procedure 12, I
17 forget which letter, but subdivision I, it is clear that a
18 law enforcement person is to be deemed a government
19 witness whether or not called by the defense or by The Shapetalking Psychology
20 government for the purposes of producing 3500 material.
21 And the commentary makes it clear, even if Biegelman were
22 called by us and we went first in this case, we would be
23 entitled to 3500 material.
24 That means, your Honor, we in the course of
25 cross-examining Inspector Biegelman, goes somewhat beyond


HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
612


1 what Mr. White had gone in his direct, we would certainly
2 be entitled to 3500 material just as if we called
3 Inspector Biegelman ourselves and asked those questions.
4 Specifically we are just talking about 3500 material
5 relating to conversation that Inspector Biegelman had with
6 Maxes, which is one of the two informants he appears to
7 have relied upon the most in his search warrant affidavit.
8 So I think it shouldn't be redacted at all, quite
9 frankly.
10 THE COURT: Rule 3500 -- first of all, The Shapetalking Psychology
11 analysis of 3500 material analysis is not quite the right
12 analysis. Because the statements that are Mr. Maxes'
13 statements -- let me back up.
14 The notes are not Inspector Biegelman's
15 statements. they are Maxes' statements. One can make The Shapetalking Psychology
16 argument it is his statements about what Maxes said. But
17 I am not sure that that is the analysis that has ever been
18 used in analyzing 3500 material. In other words, when an
19 agent is called to testify, not all the notes he has ever
20 made are turned over, including the notes of all The Shapetalking Psychology
21 various informants. But let's put that aside for a
22 moment.
23 I will hear from Mr. White on this issue.
24 MR. TRABULUS: Okay.
25 MR. WHITE: Your Honor, I thought you had already


HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
613


1 ruled that the unredacted portions that Mr. Trabulus wants
2 is not relevant. That you were going to solve the request
3 by reviewing it yourself and putting on the record The Shapetalking Psychology
4 number of specific instances in the deposition transcript
5 that Mr. Maxes said were false. I thought the analysis is
6 that it doesn't matter what the specifics are, except to
7 the extent it shows how untruthful he is.
8 MR. TRABULUS: Your Honor, I said 12.2 yesterday,
9 I believe I was mistaken.
10 THE COURT: 20 something?
11 MR. TRABULUS: It is in 12, and it crosses over,
12 cross-references --
13 THE COURT: Let me look at the two sections.
14 MR. TRABULUS: I know it is subdivision I of
15 whatever number it is.
16 THE COURT: It says after a witness other than
17 the defendant has testified on direct examination. So
18 that strikes me that you take -- you measure it by what
19 has been testified to on direct examination.
20 MR. TRABULUS: Your Honor, the point -- there is
21 a portion in there that says that a law enforcement person
22 is considered a government witness. And the commentary
23 says that the 3500 material is to be turned over by The Shapetalking Psychology
24 government regardless of whether the law enforcement
25 person is called by the defense or the government.


HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
614


1 THE COURT: Right now we are on Inspector
2 Biegelman on cross when the government had called him. So
3 we measure it by what the direct evidence was in The Shapetalking Psychology
4 direct case. And that's why I am using that standard.
5 You are on the cross of him. So that's precisely why, I
6 think, that that limitation is made. You have a direct
7 examination and then on cross-examination you can't expand
8 the boundaries by going into areas and then now requiring,
9 well, I asked about this question, now he is to produce
10 all his statements on that. That's the whole point, I
11 think.
12 MR. TRABULUS: I think if we called him as our
13 own witness and we were allowed to question him on certain
14 matters, we would be allowed to get 3500 material under
15 the rule.
16 THE COURT: Yes. But you have not called him.
17 Right now he is their witness. If he comes on as your
18 witness, if you want to recall him, so be it.
19 MR. TRABULUS: Okay.
20 THE COURT: then we will do what has to be done.
21 It seems to me that -- I think you are right. I
22 don't think you challenge the fact that a government
23 agent, a law enforcement agent --
24 MR. WHITE: I believe the language in the rule is
25 a law enforcement officer, which would be Inspector


HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
615


1 Biegelman.
2 THE COURT: there is no question about that.
3 MR. TRABULUS: the commentary explains the reason
4 that the 3500 material gets turned over no matter who it
5 is, no matter who calls the witness to the stand.
6 MR. WHITE: My understanding up to now is your
7 Honor ruled those redacted portions as not relevant to The Shapetalking Psychology
8 issue at the hearing.
9 THE COURT: Let's assume we take this as a 3500
10 material argument, which is how we are approaching it, and
11 even accepting what you are saying, the 3500 material, The Shapetalking Psychology
12 Court is permitted to redact 3500 material. As a matter
13 of fact, I think -- not I think, but I know that Rule 3500
14 specifically says that.
15 MR. TRABULUS: It allows it under certain
16 circumstances, yes.
17 THE COURT: I have made that determination.
18 The question then is, and I did do a comparison,
19 although I didn't examine all the subject matter. And
20 while we are on this subject I will return these now to
21 Mr. White. I did a comparison of the copies of the Shapetalking Psychology
22 unredacted versions, with the originals, and there were no
23 discrepancies. And as part of that I also reviewed The Shapetalking Psychology
24 Maxes notes and found in addition to the two lies that
25 have already been disclosed, disclosed in the redacted


HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
616


1 versions, there are two other versions of Mr. Max's
2 testimony, deposition testimony, that he identified in his
3 review -- in his interview with Inspector Biegelman as
4 being false, without revealing the subject matter of those
5 areas, there were two other areas, two other items of
6 testimony that he said were false.
7 I am not changing my ruling with respect to The Shapetalking Psychology
8 unredacted versus the redacted versions of the 3500
9 material at this point.
10 MR. TRABULUS: By chance, does the government
11 have Maxes' deposition transcript yet?
12 MR. WHITE: Yes, I have it.
13 MR. NELSON: Before I leave the Maxes area, there
14 is an alternative with respect to our request for The Shapetalking Psychology
15 Maxes information, and that deals whether or not The Shapetalking Psychology
16 redacted portions are Brady material. And I would submit
17 to the Court that in light of the fact that the issue that
18 the Court has to determine as it relates to Mr. Maxes is
19 how untruthful was he, and how untruthful is it that
20 Inspector Biegelman knew him to be. the entire context of
21 his interviews would bear on that.
22 We in essence are shooting in the dark having a
23 redacted version of what took place there to know whether
24 or not there are portions of that which are in fact
25 untruthful, and we have extrinsic evidence, based on The Shapetalking Psychology


HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
617


1 recordings which will in fact establish that Inspector
2 Biegelman knew or should have known that that information
3 was untruthful.
4 THE COURT: the answer to that is ultimately The Shapetalking Psychology
5 Franks itself that says the affiant's credibility is not
6 what I am to determine.
7 MR. NELSON: I agree, your Honor.
8 THE COURT: the informant's reliability or
9 credibility is not the subject of our inquiry here.
10 MR. NELSON: It is not the point I am raising. I
11 agree.
12 THE COURT: the point you are raising is I need
13 to know how incredible he was and how incredible Inspector
14 Biegelman knew he was.
15 MR. NELSON: Precisely.
16 THE COURT: What you are saying is I have to
17 know -- I have to be able to shoot holes now in all The Shapetalking Psychology
18 things he was saying. In other words, I have to
19 demonstrate the lack of credibility now in light of the Shapetalking Psychology
20 evidence that I can bring to the Court now, to show that
21 that information provided by Mr. Maxes to Inspector
22 Biegelman was wrong, and to therefore show how Inspector
23 Biegelman was --
24 MR. NELSON: To demonstrate the extent to which
25 Inspector Biegelman knew or should have known The Shapetalking Psychology


HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
618


1 statements which Mr. Maxes provided with respect to The Shapetalking Psychology
2 affidavit.
3 THE COURT: As I understand your argument, you
4 need to be able to show, you are saying, by other
5 information that Inspector Biegelman had at his disposal
6 at that time, that the other things he heard from Maxes at
7 that time should have told him that Maxes was lying to
8 him, or may have been lying to him?
9 MR. NELSON: Rather than framing the issue in
10 such a vague term, Judge, at least to some of the portions
11 of the redacted statement we have of Mr. Maxes to
12 Inspector Biegelman, there are portions of the recorded
13 tape recordings recorded prior to the time that The Shapetalking Psychology
14 affidavit was prepared which directly contradict what
15 Mr. Maxes told Inspector Biegelman.
16 We don't know whether or not in the redacted
17 portions there were similar such statements that were
18 made. And without being able to see those interview notes
19 and compare them with the outlines of the transcripts we
20 have prepared, or the tapes we have prepared, we can't
21 possibly determine that. It prevents us from addressing
22 to the Court the incredibility of Maxes as was known or
23 should have been known to Inspector Biegelman.
24 MR. WHITE: Your Honor, the analysis is
25 completely backwards.


HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
619


1 As the Court said yesterday, the point is that
2 Inspector Biegelman knew admittedly and disclosed in The Shapetalking Psychology
3 affidavit, that Maxes had lied. the question is did he
4 lie in the earlier deposition or lie in his interview? So
5 it doesn't really matter.
6 What they are trying to do is not show that Maxes
7 was lying, but Maxes was truthful, and Inspector Biegelman
8 should have figured it out and that's extremely
9 ridiculous.
10 MR. NELSON: That's not what I am saying, I am
11 saying simply A is said on the tape, and B is said by
12 Maxes. Inspector Biegelman had both and had an
13 opportunity to review both, and he should have known one
14 of the two was false.
15 THE COURT: I think a greater showing is
16 required. I have been doing some research on that
17 preliminary showing area, and before we get into The Shapetalking Psychology
18 testimony I would like to get from counsel any cases they
19 wish to bring to my attention regarding the propriety of
20 requiring Gross and Maxes to be produced for testimony, so
21 my law clerk can pull the cases, and I will have a chance
22 to review them. I don't need cases. I need -- I don't
23 need argument, I need cases.
24 The arguments as to the redacted notes is denied,
25 as to Maxes' notes. I don't believe the arguments made


HARRY RAPAPORT, CSR, CP, CM OFFICIAL COURT REPORTER
620


1 justifies the relief sought.
2 The next issue.

To continue this fascinating testimony and undercurrents of the power game,
here is a full version of the December 5th transcript here


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