UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x UNITED STATES OF AMERICA, v. 24 Cr. 542 (AS) SEAN COMBS, a/k/a "Puff Daddy," a/k/a "P. Diddy," a/k/a "Diddy," a/k/a "PD," a/k/a "Love," Defendant. Trial
New York, N.Y. May 27, 2025 8:46 a.m. Before: HON. ARUN SUBRAMANIAN, District Judge -and a Jury- APPEARANCES JAY CLAYTON United States Attorney for the Southern District of New York BY: MADISON R. SMYSER EMILY A. JOHNSON MAURENE R. COMEY MEREDITH FOSTER MITZI STEINER MARY C. SLAVIK Assistant United States Attorneys APPEARANCES
(Continued)
AGNIFILO INTRATER LLP Attorneys for Defendant BY: MARC A. AGNIFILO TENY R. GERAGOS -and- SHER TREMONTE BY: ANNA M. ESTEVAO -and- SHAPIRO ARATO BACH LLP BY: ALEXANDRA A.E. SHAPIRO JASON A. DRISCOLL JONATHAN P. BACH -and- XAVIER R. DONALDSON BRIAN STEEL NICOLE WESTMORELAND ALSO PRESENT: LUCY GAVIN, AUSA Paralegal Specialist SHANNON BECKER, AUSA Paralegal Specialist RAYMOND MCLEOD, Defense Paralegal Specialist
(Trial continued; jury not present)
THE COURT: Welcome back. I hope everyone had a great weekend.
MR. AGNIFILO: You too, your Honor.
THE COURT: All right. I see everyone was burning the midnight oil, so why don't we start with the issues concerning Ms. Clark. First, there are some defense issues on certain exhibits the defense may use. The defense has indicated they want to address those as they come up. Unless there's something else that needs to be discussed along those lines or the government wants to address those now, we'll just address them as they come up. As to the objections to statements made, I suppose, although the letter is a little bit unclear by male number one, regarding the 2004 incident of alleged kidnapping, the government responds that these statements would be admissible as non-hearsay because they go to effect on the listener or are threats. They cite to the Bellomo case. That is 176 F3.d 580 at page 586 (2d Cir. 1999), which states that statements offered as evidence of commands or threats or rules directed to the witness rather than for the truth of the matter asserted are not hearsay.
And on that basis, the statements would be admissible. And the statements would further overcome a rule 403 objection as they are probative and relevant to the kidnapping predicate which is in the indictment at paragraph 13A. For that reason, the probative value would outweigh any unfair prejudice. As to the statements from Ms. Ventura to Ms. Clark, concerning abuse, the defense objects on hearsay and rule 403 grounds. Those statements to Ms. Clark will be excluded. They go primarily to the truth of the matter asserted. They would also be excluded on rule 403 grounds. As I understand the government's submission, there were certain statements made by Ms. Ventura to Ms. Clark to go to Ms. Clark's I suppose hesitancy in taking Ms. Ventura to meet Mr. Combs. However, that's followed up, according to the government's letter, by an incident in which Ms. Clark actually witnesses abuse by Mr. Combs against Ms. Ventura. That would be admissible and is not challenged by the defense.
And so the statement that Ms. Ventura made to Ms. Clark regarding the prior abuse going to the hesitancy of Ms. Clark, would seem to have minimal probative value and the potential for unfair prejudice is high. It would also seem to go primarily not to the effect on the listener given the description of the general sequence of events, but rather to the truth of the matter asserted. So that takes care of the issues regarding Ms. Clark. I'm going to pause on the summary charts issue and go to the issue concerning the DNA testing questions to Officer Jiminez. And as I understand it -- and I'm happy, Ms. Slavik, for you to address this -- the mentioning of DNA testing is in Mr. Jiminez's report, right?
MS. SLAVIK: That's right, your Honor. Investigator Jiminez.
THE COURT: Investigator Jiminez, okay. So if that's true, then help me understand it. I may be misunderstanding this. But wouldn't the defense be able to prove up the report as a business record so the report would come in, and then they could ask Investigator Jiminez about what's in his report similar to what we handled on the first day of trial with the officer who was at the InterContinental Hotel. We had his report of the incident, that was put into evidence, and then he was asked questions about it. He might not have any idea what happened with respect to the DNA testing and may say that. At which point, that's the end of it. But help me understand why you can't get it in under the hearsay exception for business records, and then why he wouldn't be able to be asked about his own report.
MS. SLAVIK: Your Honor, I think the key things are Investigator Jiminez, his participation in the collection of DNA, the testing for DNA, the analysis of DNA, as well as the very significant limitations of the DNA analysis report. Starting first with investigator --
THE COURT: Let me stop you right there. Are you making a 403 objection?
MS. SLAVIK: A 403 and a 702 objection, your Honor.
THE COURT: What's the 702 objection? He either knows something about it or he doesn't.
MS. SLAVIK: Your Honor, this is --
THE COURT: Just to make sure I understand. And sorry to interrupt.
MS. SLAVIK: Sure. No.
THE COURT: So if he comes up and testifies that actually as a side business he's an expert in DNA testing and etc., and he has expertise he satisfies all the 702 predicates and then he testifies about the DNA testing, that's one thing. But most likely what he's going to say is this is just -- this is in my report, I see it there, and it reflects something I was told by a member of the team. Other than that, I have no idea about anything concerning this DNA testing. So what's the 702 issue?
MS. SLAVIK: So the 702 issue, your Honor, is that the conclusion in Investigator Jiminez's report comes from someone who is an expert in DNA testing and analysis, that is not Investigator Jiminez. He did not swab any of the evidentiary items for DNA. He did not do the actual testing. He did not do any of the analysis. So his personal knowledge of any of this is extremely limited. His knowledge is -- rests on the report that the actual DNA expert conducted, submitted, prepared that was not Investigator Jiminez.
THE COURT: Right. But if he's asked: Well, in the normal course of an investigation, would you ask the serologist whether any DNA samples were taken? Yes, I would.
MS. SLAVIK: I think that's fair game. I think it's fair game to ask Investigator Jiminez whether he submitted any evidentiary items for DNA analysis. The problem that I have is questioning about the results of that analysis. The DNA report included in the case materials that were submitted to your Honor, you can see that's two pages. That is woefully incomplete, and I think that has the real risk of misleading the jury. DNA analysis at this point is something that, you know, is very much is in the common sphere. It's given a lot of weight. The case law suggests that the district court needs to set up guardrails for the admission of DNA evidence like this because it has a real potential to mislead and confuse the jury. And in this case, that is absolutely true. While it is true that there was a partial profile that was obtained from the glass bottle, first of all, Investigator Jiminez does not know what a partial profile means. He cannot explain the significance of a partial profile. He doesn't know what it means. But, secondly, just based on, you know, previous experience with DNA experts, there has to be a sufficient concentration of DNA and a sufficient amount of alleles they're called to --
THE COURT: Let me stop you right there. So you don't have an objection to the report coming in assuming that -- Mr. Steel, are you doing this cross-examination or who is? Mr. Agnifilo. So I assume you're going to ask the predicate questions and establish this as a business record.
MR. AGNIFILO: Yes.
THE COURT: So.
MS. SLAVIK: Your Honor, we would have an objection to the full report coming in. There's a one pager that establishes Investigator Jiminez's opinion that this was an intentionally set fire. The report, the full report, is much longer, and includes details of Investigator Jiminez's conversations and interviews with witnesses, and other matters that we don't think are appropriately entered here. And that's in part because the one line about the DNA analysis is just unsupported by anything that is contained in Investigator Jiminez's report. Like I said, the DNA report is two pages. There is undoubtedly a more fulsome report with respect to the DNA. And Investigator Jiminez simply is not qualified to interpret the results. He's not qualified to testify as to the limitations of that report, which the government submits are significant. And so, for that reason, I think that the full report, with the DNA analysis, I think that's only going to confuse the jury. The defense wants to get this in because they're undoubtedly going to suggest that there was only one DNA profile obtained from the glass bottle and that was a female. I don't think that the DNA report can sustain such an argument and I think to make that argument, to advance that argument, will only confuse the jury.
THE COURT: All right. Mr. Agnifilo.
MR. AGNIFILO: Yes, Judge.
THE COURT: First of all, are you going to ask Investigator Jiminez to interpret the DNA results or anything along those lines?
MR. AGNIFILO: Not to interpret it, no. I'm going to ask him simply -- in addition to being an expert, he's also the lead investigator in this particular investigation. And in that capacity, he sent the glass bottle and some other objects for DNA test. He got the results back, and that's significant to him in terms of how he continues forward with his investigation. Because, I dare say, if the DNA came back with Sean Combs' DNA, this investigation would have gone in a different direction than it did. So it's significant to him as the lead investigator on this fire investigation that it came back. And I'm not going to make more of this than it is. As my colleague pointed out, the DNA doesn't come back identifying another person. It comes back simply that it's consistent with a female contributor. Now --
THE COURT: Because, as I understand, let me just make sure I'm getting this. It's not the substance of the DNA testing, whether it was accurate, inaccurate; he's not going to know anything about that. It's the fact that he was the lead investigator and he got this information, and what impact, if any, did that have on his investigation.
MR. AGNIFILO: That's right. That's right. And I'm not -- I think what the government is afraid of is somehow we're going to do something with this and go off into left field and we're just not. It's a piece of evidence in the case. It's going to the case investigator, the lead investigator. He knows about it. I'm not going to ask him questions about how DNA works or anything like that. And that's how I'm going to handle it. And, frankly, I wasn't even going to -- I don't know that we have to put in the report. I think I can just ask him, give him the report, does this refresh your recollection. Did this happen, yes, and, you know, you conducted your investigation. Going forward with this investigation -- I'm sorry, with this information in mind, which you got from, you know, in this case Bode Technology.
MS. SLAVIK: Your Honor, can I just respond? I think one of the significant issues here is that Investigator Jiminez simply is not equipped to testify as to the results. The results are -- the results that the defense wants to get in, that is not necessarily the results. Like I was saying, the partial female profile is one thing that was apparently taken from the glass bottle. But that is absolutely not the extent of the DNA that was taken. In many cases, there are multiple contributors to items such as these.
THE COURT: And, in this case, did further DNA testing show that there were multiple --
MS. SLAVIK: We don't know. That's exactly the issue.
THE COURT: How do we not know? How do we not know right now?
MS. SLAVIK: Because oftentimes you need -- like I said, you need a sufficient concentration of DNA to do a comparison, like to develop a profile and then to compare it to DNA that's in a database. If you don't have a sufficient concentration, you can't do that. And so, oftentimes, the reports that I've seen, historically, you know, you see the profiles that does have -- that do have a sufficient concentration and DNA experts compare that to what's in a database already. But oftentimes there are multiple contributors that, you know, is just not enough DNA to throw into a database and see what comes back.
THE COURT: How long is Investigator Jiminez's direct examination?
MS. SLAVIK: It's about half an hour to 40 minutes.
THE COURT: Half an hour, all right. I'm going to overrule the objection. However, I want to hear what he's going to be testifying about on direct and then I'll hear you after the direct examination is over. We can have a short side bar and I'll make sure that I'm sticking with that ruling. And, Mr. Agnifilo, you understand that if you start to go into left field that you're going to field an objection from Ms. Slavik?
MR. AGNIFILO: I understand.
MS. SLAVIK: Your Honor, I just want your Honor to be on guard that DNA evidence of this sort has the strong potential to mislead the jury. The defense has had this report since I think November of last year. They've known that Investigator Jiminez was testing as a cause and origin expert since March 7th. They have not noticed a DNA expert. And for those reasons, I want the Court to be just very attuned to these issues of misleading and confusing the jury.
THE COURT: All right.
MR. AGNIFILO: Your Honor, one thing. They put this exact evidence in the grand jury. I mean, they put it in -- and I understand that the standards are different and all that, but we would have no -- I'm surprised at the objection. I mean, so they're saying we've been on notice of different things. When I saw they put this evidence in the grand jury, exactly the way it's going to come out here, I was on notice of quite the opposite. And for the government to say somehow that we couldn't call -- that if your Honor does preclude it, we could not prove this up through the government's witnesses that they're not calling, in other words, the serologist and people from the laboratory did the testing, I think is deeply problematic. I mean, this is absolutely fair game for this witness.
THE COURT: All right. I heard it.
MR. AGNIFILO: Thank you, Judge. Yes, Judge.
THE COURT: We'll pick it up again. But for now, people should operate under the assumption that the objection is overruled. As to the DNB record to be issued with Officer Ignacio.
MS. SLAVIK: Your Honor, my understanding is that the defense no longer has an objection to the entry of that exhibit.
THE COURT: Great. Making progress. So then we go as to the summary charts, when are those going to be put in, Ms. Comey?
MS. COMEY: Some of them will be put in as early as Monday of next week. The longest one won't be put in until I think our second to last witness at the end of our case.
THE COURT: All right. So I'll just, just so we can address this in more fulsome detail later, as for GX 1401, 1404, 1405, 1408, and 1409, those seem to be proper summary charts admissible under rule 1006. As to Exhibit 1403, I think that's properly a demonstrative that would be covered by rule 107. It doesn't prove the content of voluminous materials or materials that cannot be conveniently examined in court. The close calls, in my view, are 1402, 1406, 1407, 1410 and 1411. And I think my issue with this -- and you may be able to convince me those are 1006 exhibits that can go back to the jury room. I think my real concern is with the text messages. Because so basically these exhibits are going in to show particular events and to show that those events were freak-offs that are the subject of this case. They bring in bank records, phone records, things of that nature. And that would seem to be fair under rule 1006. I take it that the principle objection is there are certain text messages that are being put in from other text message chains that are already in evidence and is that proper. And you might be able to avoid the objections by not having the text messages there if you just have the events and then the text messages which are already in evidence and which the juror can review if they need to are separately in evidence and don't need to be on there. Now, you might say that doesn't work because in order to show that these were these types of events, we need to have some evidence of that and the evidence that we have is from the text messages. So I hear that. It's just that's why I'm thinking through it. I think it's a closer call than some of the other ones.
MS. COMEY: Yes, your Honor. So if I can break those two apart as you're thinking about it. 1402 and 1406 I think are different in kind from 1407, 1410, and 1411. So I think 1402 and 1406 are really just about putting in hotel and travel records. And the reason for references to text messages or references to communications of any kind are just to establish who the people were who were going to that hotel room. So it's not about proving up the activity. It's really about like including in each row the relevance of that hotel record or that travel record. And I think that some of the defense's points about the characterization of some of those text messages are well taken and I think question address those for 1402 and 1406, and those two I think will save an enormous amount of time. Because if those don't go back to the jury, then we have to show the jury where in the hotel records to find each of the relevant stays and that's going to take us a long, long time. So I think 1402 and 1406, the concern your Honor just raised I think we can address by conferring with the defense and making sure that there isn't improper argument about what happened at those hotels outside of just explaining why each hotel record is relevant.
THE COURT: All right.
MS. COMEY: So there's 1402 and 1406. 1407, 1410, and 1411, are really just very much like the exhibits that Judge Stein admitted in Menendez, which I think we talked about a great deal in our letter, and they are setting up a timeline of different communications that come from different devices and records that come from different sources. And the reason that this chart will save an enormous amount of time, and we think is 1006 exhibit, is because it will line up those messages from many, many different devices and from many, many different text threads that span hundreds if not thousands of pages in chronological order. They are not argumentative and I don't think that there's any commentary in those charts that says what inferences should be drawn. And we take the defense's points about taking things out of context with a bit of a grain of salt because of the cases that I cited to your Honor about how we are allowed to pick what supports our case. But we have tried particularly in the revised draft that was sent out last night to be more inclusive so that they are more a timeline within a specific range of events rather than picking out specific communications between two people if that makes sense.
THE COURT: Understood. And so these are not going to -- they do not need to come into evidence this week?
MS. COMEY: They do not need to come into evidence this week, your Honor. But I think those five charts that your Honor said are on the bubble for your Honor will save the jury an enormous amount of time if we can put them in. If we can't put them in substantively, if the jury can't review them in the jury room, then we have to show the jury where to find these exhibits and that's going to take extra days of testimony.
THE COURT: That's fair. I'll think about that.
MS. COMEY: Thank you, your Honor.
THE COURT: And I've heard the defense's arguments and I've heard your response, so I'll consider what you just said and let you know this week what the ruling is going to be on those.
MS. COMEY: Would your Honor like us to try to meet and confer in the meantime or should we wait on your ruling?
THE COURT: If you can eliminate some of the objections, then great.
MS. COMEY: I will do that. Thank you.
THE COURT: I think that leaves us with the motion to strike on Dr. Hughes and the objection raised as to Mr. Mescudi's testimony. So a question for the government as to the motion to strike Dr. Hughes' testimony, were you planning to put anything in? It was submitted on Saturday, so I will give the government a chance to respond if you were going to respond.
MS. STEINER: Yeah, we would ask to respond by the end of the week, your Honor.
THE COURT: I think we need to do it sooner.
MS. STEINER: Sooner, okay.
THE COURT: If the defense is moving to strike her testimony, and I think it needs to be close in time to when that testimony happened. So let's get a response in by tomorrow, and then I'll let everyone know what's going to happen on Thursday, if anything.
MS. STEINER: Thank you, your Honor.
THE COURT: So we'll do that. And then as to Mr. Mescudi's testimony, so the defense says, look, so here's what happened. There was an objection to the question, which the Court sustained in the form of asking for the question to be rephrased. The question was then asked in a form that was appropriate. And so the Court overruled an objection to that question. And I think what the defense is saying is the government knows what their witnesses are going to say, so they can reframe these questions to be proper in terms of their form, but what they are in fact soliciting is an improper opinion that is not permitted under rule 701. The answer given by Mr. Mescudi, I think fairly, is an opinion that would be covered by rule 701. Now, there wasn't any objection or motion to strike the answer, because it came out as an opinion. But there was no subsequent motion by the defense. But putting that to the side, why isn't it an opinion? And if it is an opinion, how is it rationally based on Mr. Mescudi's perception as opposed to an opinion that would be impermissible given the requirements of rule 701?
MS. JOHNSON: Your Honor, the government would appreciate a chance to look more closely at the cases cited by the defendant and put in a letter to the Court. I do think that it is properly based on his rational perception. He had a meeting with this individual. He had many communications with Mr. Combs. It's, like, to distinguish the case cited, Kaplan case cited by the defense, in that case, the opinion was about the knowledge and participation of the defendant in a fraud scheme. I do not think that's what Mr. Mescudi was saying. He was saying when I looked him eye to eye and he said I don't know what you're talking about, I don't think he was telling the truth. That's it. I don't think that goes any further than that. It doesn't mean he participated or not participated. He's talking about a single statement. And I do think that's rationally based on his perception of attending this meeting --
THE COURT: Meaning everything he said about the SoHo House meeting, he looks at Mr. Combs, he sees him acting in a particular way. And there was questioning on that and you're saying based than foundation, the answer that he gave was rationally based on his perception?
MS. JOHNSON: Precisely.
THE COURT: I understand that. Can you get a letter in on that today just so we can eliminate that?
MS. JOHNSON: Sure.
THE COURT: So let's do that and I'll let you know tomorrow what, if any, relief is warranted there. Ms. Shapiro, in the meantime, you're asking to strike that portion of Mr. Mescudi's testimony?
MS. SHAPIRO: Correct, your Honor.
THE COURT: So can you submit to the Court a proposed instruction what you want to do along those lines?
MS. SHAPIRO: Certainly.
THE COURT: Not saying I'm agreeing with the defense, but let's move this forward. Again, with Dr. Hughes, if anything needs to be done, it needs to be done close in time I think to when the testimony was offered.
MS. SHAPIRO: Absolutely. We can do that tonight.
THE COURT: That takes care of Mr. Mescudi's testimony. And I'll say generally as to the phrasing of some of these questions I think the defense's larger point is that in certain instances, questions are phrased as what was your understanding of what someone else was doing. And the defense is saying that given the government has had numerous conversations with these witnesses, they are in fact soliciting improper opinions. Is that fair, Ms. Shapiro?
MS. SHAPIRO: Yes, your Honor.
THE COURT: So the defense should object when these things come up and the government should just be careful that if they are soliciting an opinion that would be covered by 701, that they've laid a proper foundation that any opinion offered would be based on perception and not based on just thoughts or speculation on what the other person was doing or thinking or had done. With that, anything further from the government before we check on our jury?
MS. STEINER: Briefly, your Honor. The government did confer with the defense yesterday afternoon and evening about the exhibits that had been marked as Defense Exhibits. I understand as the defense has indicated they're largely going to be used for impeachment purposes, which is why we're not kind of going through them individually. There were two that the government flagged as having rule 412 issues and our understanding is the defense does not intend to show them to the witness or offer them. Those are Defense Exhibits 930 and 938. And, similarly, the government has raised a rule 412 issue that involves Ms. Ventura and has conferred with the defense on that, that has come up in Ms. Clark's statements and is in her 3500. The government understands that the defense does not intend to elicit that absent some door opening, although as the government has flagged, given that it doesn't involve a rule 412 issue, there would have had to be noticed, and the victim and her counsel would have the right to be heard on that issue. But, in any event, the defense has confirmed that they would wait to flag such an issue in a side bar rather than addressing in open court.
MR. AGNIFILO: That's all accurate.
THE COURT: Okay. Ms. Caliendo, can we check in with the jury?
COURT CLERK: Yes.
THE COURT: And is there anyone from the IT department that can help get the system up and running. Ah, Cavalry has arrived.
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(In open court; jury present)
THE COURT: Welcome back, everybody. Hope you had a restful and enjoyable weekend. And, with that, is the government prepared to call its next witness?
MS. STEINER: Yes, your Honor. The government calls Capricorn Clark.
COURT CLERK: Raise your right hand. CAPRICORN CLARK, called as a witness by the Government, having been duly sworn, testified as follows:
CAPRICORN CLARK: Capricorn Clark, C-A-P-R-I-C-O-R-N, C-L-A-R-K.
THE COURT: Ms. Steiner, you may proceed.
MS. STEINER: Thank you, your Honor.