MS. COMEY: Your Honor, this is a good place to break for lunch.
THE COURT: Good. Thank you very much.
Members of the jury, we'll have our lunch break now. We'll come back at 1:15. Have a great lunch. Don't talk to each other about the case. Don't talk to anyone else about the case, and we'll see you back at 1:15.
All rise.
(Continued on next page)
(Jury not present)
THE COURT: Mr. Nash, we'll see you back here at 1:15. You can leave the stand now.
(Witness temporarily excused)
THE COURT: Please be seated everyone.
Ms. Comey, as to the 2013 conversation between Ms. Ventura and Mr. Nash, to the extent that Mr. Nash addresses Ms. Ventura's state of mind, concerning the sex acts, that would be her present state of mind meaning on -- at that time, in 2013, she did not want to engage in those sex acts. The reason I ask the question, that conversation has to do with the sex tapes. I want to make sure he's not going to say that those sex acts that are depicted in the tapes were without consent, because that would not be the then existing state of mind of Ms. Ventura.
MS. COMEY: Yes, your Honor.
That is not how I believe the testimony will come out. If I can refer to my notes, I want to be precise in my proffer.
THE COURT: Sure.
MS. COMEY: What I expect he will say is that she said the videos were of her having sex with other men and then that Mr. Combs, the way he would say it, I expect, is I think he will say, "Puff had her doing these things she didn't want to do," which is in the present sense.
So yes, I think the testimony will be of the present.
THE COURT: All right. As to the exhibits to be used with Mia, what I'll do is, I'll address the exhibits that were raised in the letters, and then I think it makes sense for us to take our lunch break. And then there may be just a couple issues that the parties want to revisit, and you can do that at the end of the lunch break. It may turn out no one has any issues. We can proceed on that basis.
As for 3T-107, I've reviewed the materials. That is admissible under 801(d)(2)(D). It's also not being introduced based on the submission for the truth of the matter, but rather just a fact of the communication.
As to 3T-110, that would be admissible under 803(1), and I don't believe it would be testimonial under the standard in Ohio v. Clark.
As to 3T-112, that's also admissible under 801(d)(2)(D) and also 803(3). That's the government's exhibits.
Again, Ms. Shapiro, to the extent that you want to revisit any of those, you can at the end of the lunch break. But for present purposes, that's how the court sees it based on the submissions.
MS. SHAPIRO: That's fine, your Honor. I just wanted to address the defense exhibits, because we have not had a chance to respond, and I don't believe Mia will be on cross until tomorrow.
So we can get a letter in to the court not very late tonight, but we would like the opportunity to respond in writing. And just to reiterate, we didn't get the government's letter until 1:00 in the morning. We were focused on today's testimony and did not get a chance to write that up yet. We would like to address it in writing.
THE COURT: I was about to say that because I think the gravamen of the government's objection is that there is no relevance or probative value to any of these exhibits, and so I was just going to ask you that question.
Now you'll submit your letter and I'll get the answer.
MS. SHAPIRO: Thank you, your Honor.
THE COURT: All right. Anything further from the government?
MS. COMEY: No. Thank you, your Honor.
THE COURT: Anything from the defense?
MR. DONALDSON: No, Judge.
I think you said we can take it right before we finish. I'll come back and take a look then.
THE COURT: On the three exhibits?
MR. DONALDSON: Just on what Ms. Comey just said related to when the court asked about 2013 sex acts and whether we're talking about at that time.
My concern is the government's response to the court. I believe they still left that rather vague. The answer doesn't seem to apply to just at that time, it seems to -- it may be interpreted to be something else.
Just didn't seem like --
THE COURT: I think, at that point, we have to see what the answer is to the question.
MS. COMEY: Your Honor, if the answer ends up being unclear, if I have permission to lead, I'm happy to lead to make sure that it is narrowly tailored.
THE COURT: Yes. You have that permission so that we can avoid any issue that would --
MR. DONALDSON: Right.
THE COURT: -- raise a state of mind from a prior time period, which is out of bounds.
MR. DONALDSON: Very good. Thank you.
THE COURT: We'll take our break.
I'll come back at 1:10 just to see if there is any issues before we proceed at 1:15.
(Luncheon recess)
AFTERNOON SESSION 1:13 P.M.
THE COURT: Anything to address before we bring the jury back in?
MS. COMEY: Very briefly, your Honor. I'm about to pull up a photograph of the witness testifying under pseudonym Mia for the witness, and I would like the jurors to be able to see it too.
May I ask that the overflow screens be cut and the public screen be turned off just until I show that exhibit and then we can turn them back on for the rest of Mr. Nash's testimony?
THE COURT: I think that can be done.
MS. COMEY: That would be wonderful. Before I pull it up, I will check and make sure I have a thumbs up from Mr. Deputy.
THE COURT: Yes.
MS. COMEY: And we won't display on counsel table. It will just be for the witness and the jury and the Court.
And then the other thing I wanted to flag is because I'm about to start eliciting testimony about Mia, I wanted to ask if the Court would order prospectively that if any witness accidentally says the true name of a witness who is testifying under pseudonym, that you authorize the parties to confer, without further consulting from your Honor, with the court reporters, to have the true name replaced with the pseudonym.
THE COURT: That's fine.
MS. COMEY: Thank you, your Honor. And that way we don't have to interrupt and ask for striking and revising the transcript.
THE COURT: Let me ask you a question. As to the picture.
MS. COMEY: Yes, your Honor.
THE COURT: Since Mia is going to be testifying in open court, I just want to make sure I'm understanding the reason.
MS. COMEY: Yes, your Honor. So the reasoning is that the exhibit itself would be under seal and not released to the public. Obviously, as we've discussed, she'll be here in person and anyone who comes to the courthouse and wants to see her in person will be able to see her in person, but we will not be releasing a photograph of her to the press, as that would undermine the Court's pseudonym order.
THE COURT: All right. So that's going to happen right when the jury comes back?
MS. COMEY: I have one more topic on the music topic to cover, and then pretty soon after we'll get into Mia. But the very next exhibit that I'm going to pull up will be a photograph of Mia.
And then once I ask it to be taken down, the rest of my exhibits will be public and the screens can go back on. Thank you. I see Mr. Deputy nodding.
THE COURT: So given the nods from the court personnel, I'm assuming this can be done.
MS. COMEY: Thank you, your Honor.
THE COURT: Anything further from the government?
MS. COMEY: No, your Honor.
THE COURT: Mr. Steel, I see you standing up. You might be stretching your legs, but if not...
MR. STEEL: I'm definitely stretching my legs, but can I ask the Court, I heard your ruling. I understand your ruling about Government Exhibit number 3T-107, 110, and 112.
THE COURT: Okay.
MR. STEEL: But when it's appropriate, can we make more of a record if you don't mind for us?
THE COURT: Now is the time to make your record. Because as I said, if there's an issue to raise, let's hear it.
MR. STEEL: So, your Honor, on 107.
THE COURT: Yes.
MR. STEEL: 3T-107. Obviously, I'm going to adopt what the Court already read in writing that we asserted. But there's hearsay within hearsay in that e-mail. And I'm quoting: I have been informed that I cannot perform on Monday due to overage in cost. We ask that that be looked at by the Court for redaction. Or another reason to cut that out. I don't think that that is appropriate to let in on the -- that exhibit. So I just wanted the Court to be aware of that.
Number two, if I'm going too fast I'm not trying to. 110.
THE COURT: Let me stop you there. How is the statement that Ms. Ventura has been informed, how is that a statement of anything? Because you can be informed of something by virtue of things that are not statements. Right? I could be informed of an event by seeing the event. Right? So just the statement, I have been informed, how is that a hearsay within the larger hearsay of Ms. Ventura's statement?
MR. STEEL: I think I am tracking the Court. I can be educated besides someone telling me is what I hear the Court saying. But in context, what I'm reading is: I have been informed that I cannot perform Monday due to overage in cost. So I don't think that's something that she is just educating herself on or learning herself. I think somebody tells her that. And I assume it's been offered for the truth of the matter, because the government's position is Mr. Combs -- this is my belief -- stopped the show because said it's just costing too much.
So I'm asking that to be redacted. And I hope I've answered your question, your Honor. I believe it's hearsay within hearsay.
THE COURT: Is there a response on that point?
MS. SMYSER: Your Honor, I think as expressed in our letter, I do think this whole statement can come in for its truth, but that's not what we're seeking to do here. It's alternatively not admissible for its truth, but to show these things were communicated to the defendant.
THE COURT: Meaning you're not going to do what Mr. Steel suggests, to suggest that Ms. Ventura had been informed by Mr. Combs that she cannot perform on Monday, etc., right? Because then the statement is just coming in for the fact of the communication, which I understand it's not coming in for the truth, then none of these issues are really of any moment.
MS. SMYSER: We're not making that specific argument, your Honor.
THE COURT: Okay.
Mr. Steel, so you heard that. That's not coming in for the purpose that you thought. So I think that avoids the hearsay issue.
What else?
MR. STEEL: Can I go to 110, your Honor.
THE COURT: Yes.
MR. STEEL: I don't believe that it's 801(d)(2)(D) because it's -- the statement is prefaced with, and I believe I'm quoting: I still don't know what's going on. I just snuck into D-Roc's room to watch the cameras. Really -- can't really talk about on e-mail --
THE COURT: Right. So in this one. It's 803(1). So it's present sense in -- present sense impression. Excuse me.
MR. STEEL: Well...
THE COURT: A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.
So the argument is that this is just relating what these things were -- what was happening as Ms. Lee perceived it.
MR. STEEL: Well, they're watching -- this is how I read it, your Honor. They're watching cameras. I'm not conceding that those cameras are instantaneous or realtime cameras. It could have been previous, a fight or argument. And without a proper foundation, from the person who's not testifying, I would ask the Court to reconsider the lacks personal knowledge.
There's also 403 objection, your Honor, if you would consider that as well. Because when I said earlier about I understand it's not testimonial under Crawford, but I have nobody to cross-examine to say what did you say, what was it like. And I understand the hearsay rule that the Court is attaching to it. But without more to it, that this is instantaneous, I would hold my objection.
THE COURT: Well, on the 403 issue, what's the unfair prejudice given the nature of what's in the message? Because there's not anything in the message about the actual incident of any kind of kicking or anything of that nature. There's just a commotion. And that's it.
And so what's the substantial unfair prejudice as a result of the introduction of the fact that there was like a commotion and that people were on edge? Which is the most that this particular e-mail would go to.
MR. STEEL: Your Honor, they're building this entire volcano from what happened earlier that day allegedly to now moving to Mr. Combs' home. And the jurors already heard Mr. Combs, supposedly, we're denying it, but supposedly beat Ms. Ventura from inside the house to the street. And this just adds another layer. So I think it should not come in. And its probative value is very slight. And I think it's very prejudicial because we're getting another person, who cannot be discussed, what they actually --
THE COURT: Okay. Ms. Smyser, can I ask you what is Mia going to testify about concerning the events of December 22nd? And the reason I'm asking this is, is this all she's going to be testifying about, the fact of this e-mail exchange? Or is there more? Meaning there's other parts to her testimony that don't run into this issue that go to what was happening on that day.
MS. SMYSER: That don't run into what issue? I'm sorry, your Honor.
THE COURT: That run into the issue raised with respect to 3T-110.
MS. SMYSER: So with regard to, like, the events of that day, Mia is going to testify that she was at Mr. Combs' house that morning and everyone was very on edge and the mood was very ominous. And before she left for the airport that day, she had a conversation with Mr. Combs in which Mr. Combs said, in sum and substance, I found out Cassie has been cheating on me with Kid Cudi. He looked very upset. Mia is very worried about what was going on.
She will also say before she leaves, she saw Cassie and Capricorn Clark in an SUV out on the street outside of the home.
And so then she goes to the airport. And it is during that flight when she's trying to figure out what is happening. So that's the context of what she'll provide. She'll also say that Sienna Lee was in the home that day. So that's one of the reasons she is communicating with her.
THE COURT: All right. Understood. Let me think about that for just a second.
Mr. Steel, what else do you have?
MR. STEEL: On that, your Honor, just, you know, I think you said something earlier in the trial, if I'm misquoting you, I'm not trying to do that intentionally. But something like this is a trial by rumor I think you said. Gossip. Sorry. And that's how I feel about this. It's a person on an airplane, bad energy, what am I learning, tell me what I missed.
I think that it's very, very, very prejudicial to us. And it just shows this -- people talking and people giving their own, their own -- in this context at the trial, making Mr. Combs things that he doesn't have to be in front of the jury. The jurors already heard a substantial amount of testimony of what was allegedly going on that morning, and including at his home.
So I don't know if I'm answering your question, but I'm trying to, when you said anything else, that's why I'm trying to exclude it.
THE COURT: All right. And that's on 110. And do you have anything on 112 or?
MR. STEEL: I do, if you don't mind.
THE COURT: Okay.
MR. STEEL: 112, your Honor. I don't believe, we don't believe, that it is 801(d)(2)(D) because the statement is prefaced with: I have no clue what's going on. I don't usually care to know the details, and therefore I don't believe that it satisfies any scope requirement of the ruling, does not relate to the employment.
I understand that the government constantly said, well, they have to know, everyone has to know because it's part of their employment. The rule can't be that much.
THE COURT: That's true. But, Ms. Smyser, before in trying to introduce 112 into evidence, I take it that you'll ask some foundational questions to establish the parameters of the rule.
MS. SMYSER: Absolutely, your Honor.
THE COURT: So you can raise, Mr. Steel, you can raise the objection on 112 at that point if you don't believe that proper foundation has been laid for introduction of this exhibit under the agency rule.
MR. STEEL: And then for everything, your Honor, I think I made it clear, but 403, I don't want to waive anything.
THE COURT: Yeah.
MR. STEEL: So also 403 objection.
THE COURT: So as to 107 and 112, the objections are overruled. As to 112, it's subject, as I just said, to there being an adequate foundation for introduction of the exhibit under 801(d)(2)(D).
As for 110, I'm going to see how the questioning is coming in, but I am convinced by Mr. Steel that as to 803(1), which I think is the only basis for introduction of this particular e-mail, the problem is that Ms. Lee is not actually viewing the events in question, but rather she's in Roc's room watching the cameras.
We'll see if the foundation can be laid that can put some more color to this. But there is that issue on 803(1). And even if there wasn't an 803(1) issue, I take Mr. Steel's point that given that limitation on what Ms. Lee was perceiving, that introduces a 403 issue that she is then relaying to Mia what she is seeing on the video and then her impressions of people around her. And I think that there is a prejudicial component to that, that outweighs any probative value, especially when we've had witnesses testifying from firsthand knowledge as to what occurred on December 22nd, and obviously their testimony was firsthand and was offered here in court.
So when we have issues like this of this e-mail where it's going through a camera and then going to one witness and then being relayed to the person testifying in court, I think there is a high level of potential prejudice.
So 110 is provisionally out. However, Ms. Smyser, you can obviously try to establish a foundation for it. Now you're going to tell me why I'm wrong about this, so I'm happy to hear.
MS. SMYSER: Just briefly, your Honor. So I just want to point out the question is whether -- the first question is whether it comes in as a present sense impression. And multiple times in the e-mail Ms. Lee, who is an employee who is there that day, is saying I just saw this, this just happened. She's describing what she saw in realtime. Whether that's on the camera or outside. I don't think that matters for purposes of 803(1). And Mia is going to explain that there are cameras in D-Roc's room that show what is happening outside of the home. So we'll have that context in addition to the context of Ms. Lee being there at the time. I don't think there's unfair prejudice here, your Honor. Just because other witnesses have testified to this. In fact, I think the probative value of this is even higher in that case because it helps corroborate the witness's accounts of what was happening that day.
THE COURT: But you mention the fact that it doesn't matter whether it's on the camera or in person. And as a technical matter in the operation of the rule, I think that's right. But as you can tell from the statements, here it actually makes a difference, because, because she's watching this through camera, she has a limited vantage point in terms of what she can perceive. So she's not perceiving the actual event. She's only perceiving what comes in through the camera.
The further issue is that -- and, look, I don't have the actual exhibits. I have what's in -- I can pull them up. But I have the statements that are related in the letter. And there's a lot of -- there's "IDK." There's "I can't really talk about it on e-mail." And then "I still don't know what's going on."
And those statements seem to suggest that there's a limitation in terms of what Ms. Lee is able to see and perceive concerning the event. Which, at the same time, reduces the, you know, makes it harder to meet the limitations in 803(1), and then increases the potential for prejudice.
Okay. Now I see the e-mail. That's helpful. So let me see this.
All right. Thank you.
So, again, 110 is out subject to laying a foundation through questioning that there's something that I'm missing. But I'm not sure what you can do in that regard. So 110 is out. And 107 and 112 are in.
Anything further, Mr. Steel?
MR. STEEL: No. Thank you, your Honor. No, sir.
THE COURT: All right. Let's have Mr. Nash back and then we'll get our jury.
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THE COURT: Welcome back.
(In open court; jury present)
THE COURT: Please be seated.
Mr. Nash, you understand you're still under oath?
DEONTE NASH: Yes, sir.
THE COURT: Ms. Comey, you may proceed.
MS. COMEY: Thank you, your Honor.
BY MS. COMEY: