MS. FOSTER: Your Honor, would we be able to take the lunch break so we can just speak about that issue over the break before I get off direct.
THE COURT: You may. All right. Thank you, members of the jury. We'll take a break and we'll be back at 1:05 p.m. Please do not speak to each other about the case. Don't look up anything about the case. Don't let anyone speak to you about the case. Have a nice lunch. All rise.
(Continued on next page)
(Jury not present)
THE COURT: All right. Ms. Morgan, I'll see you back here then. Thank you.
(Witness temporarily excused)
THE COURT: Please be seated. All right. Ms. Foster, can you explain to me what the question is going to be and what you anticipate the answer is going to be, just so I have an understanding of what is going to happen.
MS. SLAVIK: Your Honor, if you don't mind, I'll address this. Ms. Foster can certainly jump in and correct me if I'm wrong. Essentially, Ms. Foster will elicit from Ms. Morgan the incident that is very clear in Ms. Morgan's mind because Ms. Morgan's fiancé had just broken up with her. She and Ms. Ventura were together. Ms. Morgan was very upset about the breakup of her relationship, and Ms. Ventura told Ms. Morgan that she had to go to a hotel with the defendant. Ms. Morgan was upset about this. She wanted Ms. Ventura to spend time with her. And Ms. Ventura said, in sum and substance, I don't want to go to this hotel, but I have to. That's essentially what will be elicited from Ms. Morgan. And to be clear, this incident is separate from the InterContinental incident.
THE COURT: Is she --
MS. SLAVIK: Let me --
THE COURT: Hold on. Is she going to say that Ms. Ventura was going to have this sexual encounter at a hotel and that's why she didn't want to go and stuff about that?
MS. SLAVIK: Ms. Morgan will testify that she was -- she understood that Ms. Ventura was going to the hotel for sexual purposes.
THE COURT: She told that?
MS. SLAVIK: She saw Ms. Ventura pack a bag with sex supplies, effectively. And can I just note for the court, just for the record, that defense earlier this morning, I believe, indicated that they would not object to this question and this line. They were fully aware of the question and what would be elicited, and so this objection is a bit of a surprise to the government.
THE COURT: I may have missed this. Are you saying this morning when we were discussing this prior to Ms. Morgan's testimony, or are you saying this happened in a discussion between the parties?
MS. FOSTER: This happened between me and Mr. Agnifilo directly before your Honor took the bench. I alerted him that this would be a statement that we would elicit on direct examination and so we could tee it up for your Honor if there was a dispute. And he said that he did not plan to object to it. That's why I called a sidebar, to just sort of clarify that.
MR. AGNIFILO: I have no doubt that that is the way my colleague remembers it. That's just not true. We discussed --
THE COURT: It doesn't matter. I'm not going to deem an objection waived based on a discussion between the parties.
MR. AGNIFILO: Yes. I mean, we object. It's hearsay and it's prejudicial, and it's being -- if this was a statement that they wanted to get out for some reason, they should have asked the declarant. And, Judge, I think we should go one at a time. It's hearsay without an exception. We have never challenged --
THE COURT: Well, the exception that's been raised is the exception for prior consistent statements.
MR. AGNIFILO: I understand. But I don't believe it meets the criteria for prior consistent statement. We didn't challenge this. I mean, also it's been shifting sands. The way I understood it ten minutes ago was that this was connected to the InterContinental. Now it's not connected to the InterContinental, and it's just some hotel visit at some point in time. I think it's unduly prejudicial. The government wants to get it in so that they can say, look, she's admitting to her friend that she didn't doesn't want to do the freak-offs. That is what they want to do with this.
THE COURT: That's exactly what they want to do with this, yes.
MR. AGNIFILO: And they can't do it. They can't do it with a hearsay -- there is a danger -- there is a lot of hearsay flying around, Judge. They are using different ways to get a lot of hearsay in. And if this is something that Cassie Ventura said, she was on the stand, and she's gone, so I cannot ask her why she would have said that. So it's not fair the way they are doing it. It's hearsay, the exception doesn't apply, it's unduly prejudicial, and we highly object to it.
THE COURT: All right. Understood.
MS. SLAVIK: May I respond, your Honor?
THE COURT: You may.
MS. SLAVIK: I think this reading of the law is entirely too narrow. There is nothing in the rule itself that restricts statements in the way that the defense suggests. Specifically, the defense has directly attached Ms. Ventura's credibility with respect to whether or not she consented to these freak-offs in hotels. And let me just note that --
THE COURT: Here is my question. If you just read the text of the rule, it says what's covered is a statement, and the declarant testifies and is subject to cross-examination about a prior statement, meaning the same statement. And the statement is consistent with the declarant's testimony and is offered etc., etc., so...
MS. SLAVIK: The prior statement in this case --
THE COURT: Hold on. Doesn't the rule focus attention on the statement, and that is true, why wouldn't the fact that Ms. Ventura was not subject to examination about the statement does not have relevance here?
MS. SLAVIK: Your Honor, the statement at issue here is Ms. Ventura's statement that she did not consent to freak-offs, that she did not want to participate in freak-offs. There was plenty of cross-examination on that topic. And let me just point your Honor to the case law interpreting this very rule. This case law is cited in the government's motions in limine, as well as in its May 11 letter on this very topic. But Second Circuit case, United States v. Caracappa -- I can provide the cite if your Honor needs it -- states, "the prior consistent statement need not be proffered through the testimony of the declarant, but may be proffered through any witness who has firsthand knowledge of this statement." That is exactly this situation. And pursuant to that case, this should be admitted as a prior consistent statement.
THE COURT: Well, that may overcome the hearsay objection, but think Mr. Agnifilo is saying, consistent with your explanation of what it is Ms. Morgan would testify about, that it would not meet the Rule 403 threshold, given that it goes directly to the heart of this case. But the testimony itself is vague in terms of what was actually conveyed to Ms. Morgan. And given the hearsay nature of this, meaning even if you overcame the objection in a technical fashion, the way the situation here, where Ms. Ventura who was not asked about these statements is not available for the defense to question about them, and so all we have is Ms. Morgan's vague recollection of a particular conversation where Ms. Ventura apparently, generally, says, I don't want to go to this hotel, without giving further explanation as to why, without giving further explanation even as to what she was doing. When I asked you how Ms. Morgan discerned that, she was going there for a sexual reason, you didn't indicate that it was based on a statement by Ms. Ventura, but rather because of the bag and the type of bag that she was preparing. Is she even going to testify that Ms. Ventura was going to a hotel to be with Mr. Combs for a particular reason?
MS. SLAVIK: Yes. Yes, she will testify to that very fact. Let me just push back on your Honor's suggestion that this is a vague memory of Ms. Morgan. It's actually very specific and, in part, specific because it's tied to this key event in Ms. Morgan's life. So this is actually, like, a fairly specific memory. Now, I would just, again, point your Honor to the violence argument that any such prior consistent statement needs to be presented to the actual declarant, in this case, Ms. Ventura. That is not what the case law requires.
THE COURT: What's the citation to your best case?
MS. SLAVIK: Let me give you the citation to the Caracappa case, which is 614 F.3d 30, 39.
THE COURT: All right. I'll check that out.
MS. SLAVIK: The other case that I'll point you to is the Flores case, which states that Rule 801(d)(1) applies to a witness --
THE COURT: Just give me the citation.
MS. SLAVIK: 945 F.3d at 706.
THE COURT: I'll take a look at those cases and we'll come back.
MS. SLAVIK: Your Honor, I'm sorry to belabor this. Can I just make a practical point? Ms. Ventura testified that she was in an 11-year relationship with Mr. Combs. It is not surprising or, you know, suggestive of dishonesty that she wouldn't remember a statement like this. It's important to Ms. Morgan because, like I said, this is key to an important event in Ms. Morgan's life. Ms. Ventura, it's not quite the same for her.
THE COURT: Ms. Ventura wasn't asked about this statement.
MS. SLAVIK: I'm sorry.
THE COURT: Ms. Ventura wasn't asked about this statement.
MS. SLAVIK: Exactly.
THE COURT: I don't know that she knows or doesn't know about this statement.
MS. SLAVIK: She was asked multiple times whether she wanted to go to hotel rooms, whether she consented to go to hotel rooms. She was cross-examined extensively on that point.
THE COURT: I understand that.
MS. SLAVIK: And, therefore, the prior consistent statement she made to Ms. Morgan should come in under the rule and under the cases I just cited to your Honor.
MR. AGNIFILO: One last thing.
THE COURT: All right.
MR. AGNIFILO: I think this just came up in the 3500 today. I don't know that I've ever seen any of this evidence before the report we were given this morning, and that's not here nor there. But this is really coming up at the last minute. And one of the things that I think -- your Honor is certainly alluding to it -- this prior consistent statement is not a matter of sort of general positions of issue. It's about specific statements, and there's just been nothing. This specific statement has come for the first time, and this isn't even a typical situation where we would be able to call this witness back. I think this witness is gone from us forever. And I have a hard time not thinking that that was strategic on the part of the government.
MS. SLAVIK: Your Honor, I strongly object.
THE COURT: Hold on. Hold on. Hold on. I think we're repeating ourselves. Plus, you all need to get something to eat, because otherwise you're not going to get anything to eat. I understand the issue. I'll take a look at those two cases, and I'll let you know what is going to happen after we come back. Thanks a lot.
MR. AGNIFILO: Thank you, Judge.
THE COURT: Thanks a lot.
(Luncheon recess)
AFTERNOON SESSION 1:12 p.m.
(In open court; jury not present)
THE COURT: Ms. Slavik, you directed me to that Caracappa case, and I think it, if I'm reading it correctly in the five minutes or so that I just had, it stands for two propositions. One, to your point, the prior attack on credibility need not be directed to the particular statement that is being elicited. So that was your first point, that the attack on credibility need not be to the particular statement, it may be directed towards the issue that the statement is relevant to; is that right? Am I tracking your argument at least?
MS. SLAVIK: Yes, your Honor.
THE COURT: Then the court in Caracappa says there is, however, an additional requirement that the declarant be subject to cross-examination. And so in Caracappa, there were two reasons why the court held that that was satisfied, even though the individual who was relaying the statement, Burshteyn, discussed this statement after the declarant, Kaplan, had left the stand. Those two reasons were that Kaplan was going to be subject to cross-examination because he could be recalled by the defense. Secondly, the records show that 3500 material produced to defendants prior to the declarant's cross-examination had revealed the statements and had provided a basis for the defendant to know about the statements. As to the first of those requirements, is Ms. Ventura able to be re-called by the defense in this case? If I were to allow the statement in, I would have to, under Caracappa, permit Ms. Ventura to be re-called to the stand.
MS. SLAVIK: Your Honor, I'm not necessarily sure I agree with the Court's conclusion. But to answer your question, it would be unlikely that we would call Ms. Ventura again.
THE COURT: You don't have to call --
MS. SLAVIK: Given Ms. Ventura's health issues, it would be unlikely that she would be available to be re-called.
THE COURT: Is Mr. Agnifilo correct that this particular statement was first revealed in the 3500 material that was produced today?
MS. SLAVIK: Yes, your Honor, the 3500 related to this particular statement was produced yesterday. We met and conferred, as I mentioned to your Honor, on this particular statement.
THE COURT: So that testimony will be excluded on this basis. Mr. Agnifilo, let me make sure, because I expect that this issue will recur in this case, so I want to make sure I understand the defendant's position so that I can do these things more quickly. Do you agree with my recitation of what I understand the court in Caracappa said, which is the attack on credibility can be on a general issue to which the statement pertains? So let's give an example. Ms. Ventura's on the stand and her credibility is attacked as to her willingness to participate in freak-offs, just to give an example. Then the government puts in a prior consistent statement from Ms. Ventura in which she's telling someone that she does not want to participate in freak-offs, right. You would agree that at least the prerequisite is satisfied for the prior consistent statement rule based on what I just talked about in Caracappa and because it's Ms. Ventura and she's on the stand, she is subject to cross-examination concerning that statement which satisfies the second part of that. That's obviously not this situation, but I want to make sure we're on the same page so I don't need to read a bunch of other cases about this.
MR. AGNIFILO: I really want to answer your Honor's question, but let me frame it a little differently. Certainly if we said that she didn't want to agree to that freak-off, I would agree with you.
THE COURT: It depends. But context aside.
MR. AGNIFILO: Yes. Putting context aside, which is hard to do because -- and I'm sorry to bog us down with facts.
THE COURT: Let me be more specific about it. You're not taking the position that the rule is only triggered if the declarant testifies about a particular conversation and you attack the credibility of that witness as to that statement, you understand that under cases like Caracappa, it's looked at in a broader way, fair?
MR. AGNIFILO: I agree that it's not that statement specific.
THE COURT: Okay.
MR. AGNIFILO: Where I think the rub is, though, is not exactly that. It's what does the statement connect to beyond the statement. In other words, the government is saying the statement connects to all the freak-offs. I don't think we would ever agree with that.
THE COURT: That's the context that I can deal with in addressing any of the objections, I understand that.
MR. AGNIFILO: Yes.
THE COURT: Separately, as to Mr. James, because I anticipate he will be testifying next, the issue was raised concerning the incident where the chef was assaulted and there was a request for Mr. James to file a police report. I'm still not understanding the relevance of this. So, Ms. Slavik, if you want to maybe give it to me one more time in terms of why that's relevant. There was an incident concerning the defendant and the chef, and then Mr. James is requested to file a police report. The way it's laid out in the letter, he decides not to because he doesn't want to file a false police report, and then after that he is told by the chef and another individual that, actually, Mr. Combs was the one who assaulted the chef. Now am I correct in terms of the sequence of that?
MS. SLAVIK: Yes, your Honor, that's correct. Just to clarify what I think Mr. James meant is he'd be filing a false police report because he didn't witness the actual incident. He then learned that, in fact, Mr. Combs was asking him to file it.
THE COURT: What is this relevant to?
MS. SLAVIK: This is relevant to two things, it's relevant to the means and methods of the enterprise --
THE COURT: How?
MS. SLAVIK: Because per the indictment and the enterprise letter, Mr. Combs is accused of participating in an enterprise that assaulted, threatened to assault employees, acquaintances, and other individuals, and then to conceal or --
THE COURT: Which paragraph?
MS. SLAVIK: In the February 1st letter.
THE COURT: Where is it in the indictment?
MS. SLAVIK: I'm sorry, your Honor. I don't have the indictment right in front of me. I believe paragraph 12 is the means and methods paragraph.
THE COURT: It is. I apologize for that. Can you explain again. I've now read that portion of the indictment. I understand what you're saying and I understand that issue, but here what happened is the defendant allegedly told Mr. James to file a police report, Mr. James, not having witnessed the event in question said that he didn't want to file a false police report. Let's stop right there. What's the relevance of that? That's what I'm trying to understand.
MS. SLAVIK: Well first, your Honor, it's the defendant's consciousness of guilt.
THE COURT: Guilt of what?
MS. SLAVIK: His assault of the chef. I think I made clear before the break, the chef is a victim of forced labor. That's set out in the government's March 10th enterprise letter.
THE COURT: So that's forced labor. That's within one of the earlier enterprise letters, so it doesn't run into the issues of last Friday.
MS. SLAVIK: Correct.
THE COURT: There's this issue of forced labor, and the request of Mr. James to file a police report when Mr. James had not seen the events in question is consciousness of guilt I guess because he's trying to cover his tracks?
MS. SLAVIK: As to the defendant's use of force against the chef, which is an element of the forced labor offense.
THE COURT: And then you have the subsequent conversations where Mr. James is then told that it was actually the defendant who perpetrated the attack and not the other way around?
MS. SLAVIK: Correct.
THE COURT: And that comes in on a hearsay basis because it's within the scope of their relationship given their jobs.
MS. SLAVIK: Exactly.
THE COURT: Which were 24/7 jobs attending to the defendant, and they're all attending to the defendant, and so that's why they're having these conversations in the first place, so it gets in through that exception. The relevance is the same thing, because this is evidence of Mr. Combs assaulting the chef, who is one of the identified victims of forced labor and that's why it's relevant.
MS. SLAVIK: Exactly, your Honor.
THE COURT: I think I understand. If anyone has a response, but I think that was helpful clarification on the relevance of this specific incident.
MR. AGNIFILO: I understand. The problem I have is this assertion that it's consciousness of guilt of an assault. He's not charged with assault. I understand what they're saying is the assault is part and parcel of a forced labor --
THE COURT: It's the force.
MR. AGNIFILO: No, I understand that argument. I still think it's -- there's going to be a witness who's going to come here and testify to these events. And so my worry is that they're getting two bites at the apple. They're getting a hearsay statement about an alleged assault and then they're going to have perfectly admissible appropriate testimony about alleged assault. We have no problem of course with the second.
THE COURT: I don't think there's a two bites at the apple exception to the rules of evidence.
MR. AGNIFILO: But there is a two bites -- to 403, there might be. My argument is this is far afield, it's prejudicial, and I think that we are getting onto thin ice with this agency admission concept given these facts. Everything would be an agency admission. It would just be -- everything would be admissible as an exception to the hearsay rule --
THE COURT: Who is going to be presenting Mr. James?
MS. SLAVIK: I will, your Honor.
THE COURT: And you'll lay the appropriate foundation before we're eliciting the testimony?
MS. SLAVIK: Of course.
THE COURT: On that basis I will permit that testimony. Obviously, Mr. Agnifilo, if you're seeing the questions come in and you don't believe the proper foundation has been laid, then you can raise an objection at that time.
MS. SLAVIK: Sorry, your Honor. There was another pending statement related to Mr. James' testimony --
THE COURT: That's still out.
MS. SLAVIK: Understood. However, I think there are matters around that statement that Mr. James will testify about. I will proceed carefully. I just wanted to advise your Honor that I do plan to ask him questions about his personal recollection of certain of those events.
THE COURT: Let's have Ms. Morgan back on the stand. And let's bring in the jury.
(Witness present)
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(Jury present)
THE COURT: Ms. Foster, any further questions?
MS. FOSTER: No further questions. Thank you.
THE COURT: Ms. Morgan, you understand you're still under oath?
KERRY MORGAN: I do.
THE COURT: Mr. Agnifilo.