MS. COMEY: Your Honor, I would ask, on the basis of the witness' answer to my questions, that you enter the proposed order that we have submitted.
THE COURT: Let me ask the witness, have you seen a copy of this order?
GEORGE KAPLAN: I have not.
THE COURT: Ms. Comey, is there any reason that the witness needs to review the order or the application materials?
MS. COMEY: I don't believe so, your Honor, but I have a copy available if he or his attorney would like to review them.
THE COURT: Has his attorney reviewed it?
MS. COMEY: He has not, but I can hand him a copy right now.
THE COURT: Why don't do we give it over to the witness' attorney, give him a second to review it, and I'll ask the attorney if there are any further issues to address before the Court signs the order. Just give it one moment.
MS. COMEY: The attorney has informed me, your Honor, that he has reviewed the order and that he is satisfied that there are no issues with it.
THE COURT: What is the attorney's name?
MS. COMEY: Michael Becker, your Honor.
THE COURT: Based on the questions asked and the answers given, the Court will execute the order regarding immunity and make it part of the record. Is there anything further, Ms. Comey?
MS. COMEY: No, your Honor. Thank you.
THE COURT: Thank you very much, Mr. Kaplan. We will see you back here this afternoon. We are adjourned until 12:45.
MS. SLAVIK: Your Honor, can I raise one issue before the lunch break?
THE COURT: Yes.
MS. SLAVIK: I apologize, especially to Ms. Westmoreland. I just wanted to flag for the Court that the government will seek to admit a certain exhibit, it's Government Exhibit 629-A, after Mr. Kaplan's testimony. The government has not yet conferred with the defense, but we will do so over the lunch break. I expect that there could be argument on this particular exhibit before its admission.
THE COURT: Let's see if it's something that we can address briefly when we come back from the lunch break, just so we don't have to have a break while the jury is out here.
MS. SLAVIK: Of course, your Honor.
THE COURT: Very good. We are adjourned.
(Luncheon recess)
AFTERNOON SESSION 12:50 p.m.
THE COURT: Ms. Slavik, do we have any issues to address as to that exhibit?
MS. SLAVIK: Your Honor, I haven't had the opportunity to confer with the defense. I'm looking at Ms. Geragos. Your Honor, I understand that the defense will object to the exhibit's admission.
THE COURT: They will. Shall we take a look at them, or do I need some see the context through Mr. Kaplan's testimony?
MS. SLAVIK: No. I think we can take a look now. Like I said, the government will plan to admit this after Mr. Kaplan's testimony. So we can take it up now.
THE COURT: Let's take it up right now.
MS. SLAVIK: Great.
THE COURT: Sorry, do I have the exhibit?
MS. SLAVIK: I sent the exhibit to your Honor's chambers. It can be brought up on the screen as well.
THE COURT: No. I have it.
MS. SLAVIK: You've got it.
THE COURT: I apologize for that. I didn't see the email. I'm looking at this. I see it's redacted.
MS. SLAVIK: Yes. It's redacted for 412 issues, your Honor.
THE COURT: What is the nature of the objection?
MR. AGNIFILO: The objection is that it is hearsay, clearly being offered for its truth from someone who is not going to be testifying at this trial. It's prior out-of-court statements. It's detailed. It's -- the government believes that it's damaging. There is no endorsement of the statement by Mr. Combs. And so I have two bases for objection. First, it's inadmissible hearsay.
THE COURT: Explain how it's hearsay over a statement of a party opponent or statement of a party opponent as to Mr. Combs and then under 801(d)(2)(D) as to Uncle Paulie.
MR. AGNIFILO: First, the statement -- thanks. I feel you -- from Mr. Combs, I think is ambiguous. It's not -- he is not saying, I agree. He could be saying, thanks for the advice, thanks -- the statement is, thanks. I feel you. I don't think -- without anything more, there is nothing about that statement that's an endorsement. He is not verifying --
THE COURT: Maybe I'm missing something. Is that a 403 objection?
MR. AGNIFILO: That's a hearsay objection. The order I would like to go is why it's hearsay without an exception, and then I'll go to 403. The two reasons why it's hearsay is because it's a statement by another person, it's a prior out-of-court statement being offered for the truth of the assertions in the statement.
THE COURT: Let's start. To the extent that Mr. Combs made any statements, why would it not fit under 801(d)(2)(A), which covers statements made by the party.
MR. AGNIFILO: The only statement Mr. Combs makes is: Thanks. I feel you.
THE COURT: Right. And you would not have a hearsay objection to that statement.
MR. AGNIFILO: Thanks. I feel you is absolutely admissible as a statement of a party.
THE COURT: Great.
MR. AGNIFILO: It's the blue statements that I object to.
THE COURT: As to the blue statements, why would those not be admissible under 801(d)(2)(D)?
MR. AGNIFILO: Because these are not statements that are -- can we do this. We just got this.
THE COURT: Would you rather take this up after Dr. Hughes is off the stand?
MR. AGNIFILO: Let me take a look at this, compare it to the cases we have been talking about, and I can be more helpful to the Court.
THE COURT: That's fine. Thank you, Ms. Slavik, for sending the exhibit. Now I have seen it. We will pick it up after Dr. Hughes.
MS. SLAVIK: Thank you, your Honor.
THE COURT: Ms. Steiner, can we get Dr. Hughes back.
MS. STEINER: Yes.
THE COURT: Welcome back, Dr. Hughes.
DAWN HUGHES: Thank you, your Honor.
(Jury present)
THE COURT: Dr. Hughes, you understand you're still under oath.
DAWN HUGHES: Correct. Thank you.
THE COURT: Mr. Bach, you may proceed.
BY MR. BACH: