The opinion of the court was delivered by: Robert L. Carter, District Judge.
Mohamad Dolah and Marshall Weinberg were charged, in an eleven
count indictment, along with William Stern, Nelson Walker, Jeremy
Crittenden and Eric Martinez, with conspiracy to commit fraud in
connection with the offer and sale of the common stock of
ConnecTechnologies, Inc. and Vital Signs, Inc. from July, 1997 to
February, 1998 in violation of Title 18, United States Code, §
371, and fraud in connection with the offer and sale of the
common stock of the two corporations in violation of Title 18,
United States Code, §§ 77q and 77x. Only Dolah and Weinberg went
to trial; the other defendants pleaded guilty to one or more
counts. The trial commenced on April 26, 1999, and concluded on
May 14, 1999, with a jury verdict convicting defendants on the
remaining ten counts of the indictment.*fn1
Weinberg moves for a new trial on the grounds that the court
committed reversible error in refusing to strike three jurors for
cause, in curtailing defendants' cross examination of government
witnesses as to their good faith belief that they were engaged in
legitimate transactions and their reliance on the good faith of
various persons not charged in the indictment, refusing to read a
theory of the defense charge, disparaging counsel throughout the
trial and in taking a partial verdict from the jury. Dolah joins
in the motion as to the court's refusal to strike three jurors
The testimony supporting the jury verdict was straight forward,
establishing beyond a reasonable doubt that defendants had
knowingly engaged in a scheme to interest susceptible members of
the public into buying worthless common stock of
ConnecTechnologies, Inc. and Vital Signs, Inc., and in knowingly
offering and selling them such worthless common stock of the
corporations with the intent to defraud in violation of Title 18,
United States Code, §§ 77(q) and 77(x).
Dolah elected to take the witness stand, and, by his
performance, doomed whatever hopes he might have entertained that
the jury might find that the government had not met its beyond a
reasonable doubt requirement. He told blatant and transparent
lies on the witness stand and made foolishly absurd assertions,
all of which did not aid his cause. Weinberg did not testify.
The record shows conclusively that these three prospective
jurors had no desire to serve on the jury and offered a variety
of reasons as the bases for being excused. In his initial
examination at the sidebar, Ernesto Santa asked to be excused
because he had two children of seven years and 16 months. Taking
care of them was "too much on [his wife]." (Tr. 17). When the
court refused to excuse him, he said "all right" and asked how
many days the trial was expected to last. (Tr. 18). When examined
individually after being seated, Mr. Santa said he had been
involved in class action suits against companies where there had
been stock manipulation and that he knew a Marshall Weinberg but
not the defendant. It was confirmed by defense counsel that the
Weinberg Santa knew were not related to the defendant. (Tr.
39-40). Thereafter, he answered "yes" to the question "did he
think he could be fair?" (Tr. 57). It appears that Mr. Santa was
called into the robing room for further examination by mistake.
The court and counsel must have confused him with someone else.
At any rate, in the robing room, Mr. Santa voiced a bias against
Arabs as a basis for not serving, a sentiment that he did not
express during the voir dire examination in open court.
When Paul Grandpre was first seated, replacing a juror who had
been excused (Tr. 21), he was asked if he had a problem. He
replied that he did not. (Id.) When individually examined, Mr.
Grandpre, an investment banker, married, with two children and a
masters degree in business administration, said he might have
trouble being fair because his parents were victims of
overzealous brokers. (Tr. 46).
At her sidebar examination, Margo Zomback, an elementary school
teacher, sought to be excused since standardized tests were
scheduled to be given in her school. She was told she could not
be excused for that reason. She then said she was scheduled for
gum surgery and was told that was a second thought, and that she
could not be excused for that reason. (Tr. 11-12). When examined
individually and asked if she could be fair, she replied that she
did not think so. (Tr. 45).
Ms. Zomback was the first of the three to be examined in the
robing room. (Tr. 72). Excerpts from that examination are set out
Q. I think, Ms. Zomback, you had a problem about
A. I just don't know that I can be fair. I just have
a sense of feeling one-sided.
A. You want to know how I feel? Do you care if I feel
that they are guilty or not?
Q. No, but the point I want to know, you say you have
a sense of feeling on one side. All you have before
you right now is you have seen the people and you
heard what the charges are.
A. I just have a sense of seeing FBI men and the
government making a case, I see a huge shopping cart
full of folders, which I am assuming, whether right
or wrong, I am assuming that that has to do with
evidence in the case.
Q. You have never been on a jury before?
A. Have I been selected for a jury before? No.
Q. Any criminal case you are selected for, even if it
is a one-day or two-day case, you might find the
government with charts and FBI persons. That's
A. I am trying to just be honest, sir. You asked me
do I have any prejudices, and I had ...