(Witness excused)
THE COURT: Thank you very much, members of the jury. We'll be back here tomorrow to start at 9:00 a.m. Thank you for all your close consideration today. Again, do not speak with each other about the case, don't look up anything about the case, don't talk to anyone else about the case, and we'll see you here to start at 9:00 a.m. tomorrow. All rise for the jury.
(Continued on next page)
(Jury not present)
THE COURT: Anything to address from the government before we adjourn?
MS. COMEY: Just in anticipation of Jane's testimony tomorrow, your Honor. Ms. Geragos and I have been working collaboratively to deal with any exhibit issues, but I expect there will be a letter tonight or an email tonight reflecting issues that we may need to resolve tomorrow morning. So just wanted to put that on your Honor's radar. In addition, I wanted to flag for your Honor in addition to proposing an instruction to courtroom observers about the pseudonym order, we would propose that for Jane's testimony that the public screens and the overflow screens showing exhibits be turned off throughout. And there's a couple of reasons for that. Number one is, in contrast with Mia, Jane, in her testimony on direct and cross will involve a large volume of exhibits, including text messages with her name, her child's name, nicknames for her, her phone number, her address throughout hundreds of pages of exhibits, and it is not feasible for us to carefully redact all of those, given the back and forth the parties are having right now. And so to avoid the kind of accident that happened with Mia of accidentally putting up identifying information, we'd ask for the Court's permission, just during her testimony, have the public screens turned off, and then the parties will work diligently and quickly to review exhibits on a rolling basis and release them to the press and the public with full redactions made promptly after her testimony. We just want to avoid a situation where accidentally an unredacted version gets put up on the public screen. So that would be our proposal for your Honor to protect her identity.
THE COURT: So in the overflow rooms, I mean, I'll figure this out, but is there a separate screen showing the courtroom and then a screen for the exhibits? And your proposal is not to shut off all the screens?
MS. COMEY: No, your Honor.
THE COURT: Only the screen-displaying exhibits?
MS. COMEY: Exactly, your Honor.
THE COURT: I don't have any issue with that. So we'll go ahead and implement that for Jane's testimony.
MS. COMEY: Thank you, your Honor.
THE COURT: Who do we have next, just to remind me.
MS. COMEY: So we have Mr. Piazza and Bryana Bangolan, and then if there's time, we'd like to squeeze in Enrique Santos, who's a very short witness who will just provide context for how to read the text messages that are coming up with Jane. If we're running late, we'll probably just skip it, but if there's time, we'd like to get him on so that the jury has the context for how we're reading these text messages during her testimony.
THE COURT: So worst case scenario, we'd be starting with Jane on Thursday?
MS. COMEY: Exactly, your Honor.
THE COURT: And if we start with Jane on Thursday, then we should be able to complete Jane's testimony before the following Thursday?
MS. COMEY: That would be the goal, your Honor, yes.
THE COURT: Anything further from the government?
MS. SMYSER: Your Honor, I just wanted to briefly address the new compilation the government put together, which we would plan to use during Mr. Piazza's testimony. The new compilation adds in some time that Mr. Piazza had taken out of the video when nothing was happening, just to avoid any appearance that we were taking things out of the video. And it is also inserted into the video at your Honor's suggestion, black screens between every change and camera angle. He has tried to line them up so time's not missing, but the black screens also function, show a few seconds or a short time is missing. There's nothing misleading for the jury there. That's what the government has done and what the government would plan to use during Mr. Piazza's testimony tomorrow and to offer into evidence. I understand that the defense still has an objection to this video. I quite frankly don't know the source of that objection. So I think that would be helpful to have it stated so we can address it tomorrow morning.
THE COURT: I don't think I need any further argument on it. So could you send that to the Court. You may have already done this, but --
MS. SMYSER: Yes, we can provide it to your Honor.
THE COURT: I'll take a look and we can address it briefly in the morning tomorrow before we get started. Anything from the defense?
MS. GERAGOS: Yes, just two things to respond to both, your Honor. I note, yes, no further argument. With respect to Ms. Comey, we had conferred about this. The one thing we would want our client obviously be able to see the exhibits as they're being shown to Jane. And so I guess I would just ask your Honor to tell the marshals that it's okay for him to have the computer in front of him so that he is able to look at the exhibits.
MS. COMEY: If I may, your Honor, my proposal would be for anything, except nude images, that the attorney screens remain on just with the screen covers.
THE COURT: I understood you just to say that we were going to turn off the screen in the back and the overflow rooms.
MS. COMEY: Exactly, your Honor. The only situation which Ms. Geragos' situation would become relevant is I do expect to show Jane, as Ms. Johnson did with Ms. Ventura, a few shots of explicit videos so that she can identify the people in those screenshots. I would propose to turn off the attorney screens for that and then hand hard copies of the exhibits to defense counsel and the defendant so that as I read out the exhibit number, they will know what exhibit is being pulled up for the witness. And the idea there is even with the screen protectors, the gallery can, especially when it's a large image up on such a large screen, can see the nude images, and they're explicit and I think we've already talked about how sensitive letting the public see those would be.
THE COURT: Ms. Geragos, I think what you're hearing is that one way or the other, Mr. Combs absolutely will be able to see all the exhibits. It's just a question of the mechanics.
MR. AGNIFILO: We have a different variation of the same issue on one thing. Mr. Combs is prevented from possessing or looking without us being present any of the text messages of Jane. And it's now, she's going to be on the stand tomorrow. And here's the ask: We need to be able to be with our client in a place that doesn't have a screen between -- you can't show text messages through the screen. And so we really absolutely need to be able to sit in a place with a desk with him, with no separation between us, so that we can go through these text messages. This is now kind of crystalized to this moment in time where this very, very important witness is going to get on the stand. The reason her examination is going to be so long is because there's many, many text messages, even more than the first witnesses in the case. What we absolutely require is to be able to sit with him with these text messages and go through them back and forth --
THE COURT: Are you able to do that at the MDC?
MR. AGNIFILO: We can do that at the MDC on the weekends.
THE COURT: Why can't you do it if you just left right now?
MR. AGNIFILO: We would maybe see him for an hour and a half and it's just not enough time. I'm going to make another request. I don't know if we can use the courtroom, but we need more time than we have. The 6:00 p.m. deadline just isn't enough time.
THE COURT: How long do you want to use the courtroom for?
MR. AGNIFILO: As late as we can have it.
THE COURT: But if you're here in the courtroom, then there's going to be marshals here.
MR. AGNIFILO: I don't mind that. I'm very happy to have the marshals. I have no issues with the marshals. The marshals are wonderful and help us. We need to spend time with him, our client, and to sit with these emails. If we can do that in the courtroom, if that's something the marshals would allow, I have no idea if they're going to allow it, but the current situation just, most respectfully, doesn't work because there isn't enough time and we're separated by the screen. And our client's inability to have the texts -- it's not as though we could give it to him and say read these 500 pages and talk to us tomorrow, he can't have them. He can only look at them if he's with us and it's just not working. And now we're at this stage where we have this kind of combination of factors. And what we really need is we need more time and we need more time to be not separated by a screen with our client.
And we don't we think it's been at a point where it's a Sixth Amendment right to access issue, but it's a very important issue. And I know I've been beating this drum. And your Honor I have no doubt has done everything that the Court can do, and I know the Court has on all these different fronts that we keep raising, but we have now more of a more specified problem, which is we need to go through these texts with him, he needs to be able to read them. And so I will -- I'm pleading my case to your Honor, and I'll plead my case to the marshal service and we'll see if something can work out. I spoke with the government, not that the government has -- they have say on a lot of things, I don't know that they have much say here. All the parties want this to happen because nobody wants to be in a position where this hasn't happened and then, you know, some lawyers two years from now are looking back at this situation. We really have to work this out. It's just absolutely imperative.
MS. COMEY: Your Honor, if I may make a bit of a record, given the implication of the Sixth Amendment in Mr. Agnifilo's comments. The text messages that we're discussing were produced in Rule 16 discovery. So Mr. Combs and his counsel have had them for many, many months. They are rather long, but it's very easy to see what the relevant messages are given that they were cited as early as bail arguments and bail letters, and the parties have discussed them in some detail. So the defense and the defendant have known the significance of these messages for many months. They've also been receiving 3500 from our meetings with Jane since we started meeting with her in January of this year, which has attached to each of those notes any text messages that we reviewed with her or has noted the Government Exhibit that we reviewed with her. So they have known from their receipt of 3500 which exhibits we have actually gone through, which text messages we've actually looked at with her.
So they've had all of that for weeks in advance of trial and they've had the full text messages for many months. So there has been ample time for the defendant and his counsel to review those items. In addition, given the length of direct, I don't expect to finish direct before Monday morning. And so the defense will not need to begin their cross-examination until after the weekend. So they will have two full weekend days to meet with their client in person at the MDC to review these messages. That said, subject to the marshals, because we defer to the marshals with respect to the use of the courthouse, we have no objection outside of what the marshals say is feasible to the defense meeting in the courtroom and the government not being in the courtroom while this witness is on the stand so that they can, at the end of or the beginning of each trial day, go through with their client any text messages they need to discuss.
THE COURT: Can you remind me, Ms. Comey, in terms of Mr. Combs having the text messages to review on his own, that's a result of the protective order?
MS. COMEY: Exactly, your Honor. There's a lot of sensitive information in there, there's contact information, there's nudity in some of the messages, there's a variety of sensitive information, there's her contact information, her personal information. And so that is why it is covered under the protective order, and defense counsel has been very diligent in following that. I will note though, my understanding of the protective order is it doesn't require Mr. Agnifilo himself to sit with the defendant. It could be a paralegal, it could be someone who is an agent of the defense team who sits with Mr. Combs at the MDC so that he has a chaperone essentially while he is with these exhibits.
THE COURT: Understood.
MR. AGNIFILO: I don't think I could underscore it, and I know that the Court hears us, and I'm mostly grateful, and I know that your Honor's trying. We're at a point where we just need a solution. I'll take anything that I can get as long as I can sit with him and go through these text messages.
THE COURT: And tell me, why does the screen prevent you from talking about particular messages? Paint a picture. You're so good at this, paint a picture for me. What does this screen look like?
MR. AGNIFILO: So the screen, it's thick. THE DEFENDANT: Mesh.
MR. AGNIFILO: It's thick mesh, so you can't really see through it.
THE COURT: Yeah, but you can talk through a text message. You can say here's the text message and here's what people say.
MR. AGNIFILO: You want to sit with your client and have a highlighter and say this and this, and you want to go through it. I mean, it just doesn't work the same way. And the time at the MDC, I mean, we're only going to get two days of about 6 hours each day. We have 12 hours of weekend MDC time before we go on cross, and it's just not enough time.
THE COURT: See, the thing is that there is time here in the courthouse because, as I think I told you before, we get started at 8:30, so you have from 7:00 to 8:30 in the morning, and you have from 3:00 or 3:30 until 6:00 p.m. here in the courthouse. Now, the easiest place to accommodate your discussions would be in the screened-off room. There are two other options that have been raised. One would be the skiff. That presents its separate set of issues because only classified personnel apparently are able to use that room, and you would need various approvals that are difficult to obtain. You can use the courtroom, but we need to figure out staffing. And again, you're going to be limited because of some of the marshal service issues. And so you would get until 6 o'clock. Now, put that together, that's an additional three or four hours every day.
MR. AGNIFILO: So the courtroom would be preferable to the room with the screen for sure. I mean, if that's what's available at the moment, we'll take it. We'll push the chairs in when we're done and we'd be honored to be here. And we're very happy to have the marshal service with us. That will not impede our discussions. So that is a better option than what we have right now. We've been availing ourselves, the marshal service has had Mr. Combs here 7 o'clock or soon after every day and I've been there with him a couple of times.
THE COURT: I take it that you want to do this today?
MR. AGNIFILO: I would love to do it today, Judge.
THE COURT: Is there someone from the marshal service here who could just join me in the back for a second? THE MARSHAL: Your Honor, we're going to defer to senior management for this issue. My partner just went out to make a phone call, so we should be able to get an answer hopefully soon.
MS. GERAGOS: Can I use this time to make a record on the video, your Honor?
THE COURT: Which video?
MS. GERAGOS: 115.
THE COURT: 114?
MS. GERAGOS: Well, now it's 115.
THE COURT: Okay, 115.
MS. GERAGOS: I just would like to make my record of why it's still misleading, if your Honor would allow me. 115, though it has several black screens, it still does not account for the time that the motion-activated cameras are not recording, which was our biggest problem if this gets admitted and goes back in the jury room. As a result, the assembled compilation gives the false impression to the viewer that the actions are taking closer in time to one another than is actually in fact the case. So the black screens or boxes — I don't know the best way to describe it — does not satisfy our concerns with the video. And it's cumulative of the exhibits that are already in evidence. And so it does not correct that issue. It's not separately probative for the government. And it's essentially repetitive and cumulative evidence.
The same dynamics exist here than does the original video, but the difference here is the way this Government Exhibit is compiled is it intentionally makes it appear that the sequence of events that took place over a longer period of time actually happened in a much shorter period of time. That is a big problem for us if it were to go back in the jury room. It will lead to a tremendous amount of cross-examination on this issue. And in terms of the sequence, I just wanted to address that point because I think this morning I said I didn't have a problem with the chronological sequence. And so with respect to 115, I want to -- and I'm sorry, my computer died, so I'm going to read my notes that I took off of my phone. It goes back and forth in time. So if you look at, for example, there's a part of the video where Ms. Ventura is getting something from her purse, and then it cuts back in time for a few seconds and we see Combs running down the hallway.
That was the portion of the video that we saw earlier this morning. That would imply to the viewer that the sequence ended essentially, that she was in her -- like in her purse at the time that he is coming down the hallway, and then next actual time event happening is him running down, but it's not. It's actually rewound about 30 seconds, and that is of course not going to be something that is -- that the jury is readily going to be able to figure out because the timestamps from the hallway video are vastly different by about five minutes than the timestamps of the elevator footage. There's also a sequence in the right hallway footage at about 1 minute and 56 seconds that shows Combs entering the lobby area, and the next scene is her in the lobby. And it's just actually confusing because, in reality, it seems that he enters the lobby about 20 seconds later. And so these are just two examples of why they're not in perfect chronological order.
Again, we understand that the government wants to use this as a demonstrative, we understand it might be easier during his testimony to play this for them, but in terms of the prejudicial value to the defense to have this go back to the jury room, it's extremely prejudicial in terms of sequence, it's cumulative, and there's just no probative value for the government and it's outweighed by the prejudice to the defendant. So that is my record that I wanted to make on that. I don't know if Ms. Smyser wanted to respond. And we have only one brief other issue.
THE COURT: In a perfect world, to avoid these issues that you've raised, we would simply play the original video, right?
MS. GERAGOS: That's what we understood, your Honor, and I understand they gave it to us 10 days ago. We didn't understand they would frankly put it in through Mr. Piazza until I believe Sunday night.
THE COURT: I mean to avoid all these things we're talking about, we would use the original surveillance video, right?
MS. GERAGOS: Correct, yes.
THE COURT: But we don't have it.
MS. GERAGOS: That's why we moved to preclude it, but your Honor ruled the corrected video should come in, and there was tremendous amount of motion practice on that. And so we had understood that the corrected video comes in, our objection is preserved, and now we not only have the corrected video, but now we have some other video that's been pulled together by a fourth generation video that doesn't even show things in complete sequences, and it's misleading, and it's cumulative. We have the other videos. We have 103, 104, 105, 101, 3B-101, and 3B-102.
THE COURT: I understand. I don't think you're understanding exactly what the point I was trying to figure out to get to the bottom of here. I mean, let me just end here, I don't think we need further argument. Where I began in the morning, which is if we had the original original, the generation 1 surveillance video and that existed, that, you would agree, is what the government would seek to introduce, fair?
MS. GERAGOS: Fair.
THE COURT: We don't have it, right?
MS. GERAGOS: Fair.
THE COURT: Why do we not have it?
MS. GERAGOS: Well, we don't have it because someone took it off the system. However, if Piazza hadn't taken it off the system, it also still wouldn't exist because it would have been deleted in 10 days anyway. So we have it actually -- we only have this version because of the circumstances of this case, otherwise we really wouldn't have any of it because it would have been taken off the system in 10 days.
THE COURT: All right. If we go to Rule 1004, they can put in other evidence that goes to originally what was in existence, and that's what this was attempting to do because the original evidence --
MS. GERAGOS: That's --
THE COURT: I hear you on the points that you're making. I'm just saying it is a compilation, the government agrees on that. They've made adjustments to reduce the unfair prejudice or cumulative nature of any of this, and I'm going to take a look at it. But I hear your arguments on why it is deceptive in certain ways, you've made those points, and let me take a look at the video and see what it looks like, because the only one I saw was the prior version.
MS. GERAGOS: Understood. I will not argue anymore on this. I think your Honor's allowed me to make a record.
THE COURT: If there's further argument, if there's further points you want to make, if you want to put in something overnight, you can, but I think you've probably made the points you need to make, but I'm always open to further submissions.
MS. GERAGOS: We appreciate that, your Honor, we really do. The last point is with respect to two defense exhibits that we had understood that your Honor admitted yesterday, but we wanted to check with your Honor, for lack of a better term, because we believed that they were in, the government was not exactly sure, we wanted to bring this to your Honor's attention --
THE COURT: Do we have a written record of these types of things?
MS. GERAGOS: Your Honor says it will be admitted, and it notes they're admitted into evidence, and then we didn't do that in front of the jury. And so I just want -- I guess we are trying to make sure -- both parties are trying to make sure they're actually exhibits. Defense exhibit 1748, that's the first one, and then defense exhibit 1794 is the second one. Just for the parties, please. It's not on our screen, but I'm not sure if it's on the Court's screen. There it is. So if your Honor recalls, we had oral argument on this yesterday. I believe Mr. Steel argued it. I apologize, my computer died, so I don't have the transcript cite. Ms. Johnson may. She's always on top of these things.
THE COURT: I remember the text messages. Did you not attempt to introduce these during Mia's testimony?
MS. GERAGOS: I think on the defense side we had understood that your Honor noted they were admitted, and so Mr. Steel then didn't admit them during the testimony. I don't think there's an authentication issue --
THE COURT: Wait, we've done this now for 19 days, and we have these objections that are raised, the objections are overruled. I typically say they will be admitted, and then during the testimony they are authenticated and then the communications are put into evidence. That's how we've done it every other time. Now, is there an objection from the government on the admission of these particular messages, given the overruling, I take it, of the objections? And I'm not looking at the transcript, but I take it that what happened, I remember the messages, I take it the objections were overruled?
MS. JOHNSON: That's right.
THE COURT: And the defense simply did not introduce these during Mia's testimony?
MS. JOHNSON: Yes.
THE COURT: However, given the nature of these communications, it may be they were produced by the government?
MS. JOHNSON: That's right.
THE COURT: And so there wouldn't be an authentication objection that would be necessarily heard, but I'll hear from the government to just see what their position is.
MS. GERAGOS: And just so your Honor is aware, these are from Ms. Khorram's devices, and when we produced them back with stamps to the government, we told them which device it came from, which is a device that we agreed upon was authentic, but I can't find in the transcript where Mr. Steel had her look at them and authentic them, but we don't think there is a broader authentication issue because these came from extracts that the government did.
MS. COMEY: Your Honor, I think our ongoing objection would be our understanding of the reason your Honor overruled the objection and admitted these was that they would have some sort of impeachment value, and the way to establish that impeachment value would be to introduce them through the witness and ask the witness about them, and that way the witness also has the opportunity to explain them. And we had taken it as a strategic decision by the defense not to ask about these, particularly because I think they would have been cumulative of other similar types of messages that they put in. So we assumed it was a strategic decision that the defense made not to show these to Mia and not to ask her about them and not to put them in.
MS. GERAGOS: I don't recall the basis of admissibility to these being impeachment exhibits. I think we had understood, based on the transcript, that your Honor ruled that they would be admitted. So now that is why we're bringing this to the Court's attention.
THE COURT: I didn't say that they are admitted, I said they will be admitted.
MS. JOHNSON: Your Honor, I would just point out directly before these particular exhibits were discussed in the morning argument, defense exhibit 1750 was discussed and your Honor used the same phrasing in overruling the government's objection to defense exhibit 1750. That exhibit was then shown to the witness, authenticated through the witness, and then admitted through the witness. So it's that contrast by which it's our view that these are not in evidence.
MS. GERAGOS: I think the difference between 1750 and 48 and 94 is that 1750 was not produced, as your Honor knows, because it's multiple days of argument over 1750, that was something found on YouTube that she had to authenticate in person on the witness stand whereas these messages came from extracts of Ms. Khorram's phone. We have had these in discovery since December 31st, and so we know that they are authentic.
MS. SHAPIRO: I'm sorry. May I jump in?
THE COURT: No. No. No. Hold on. So let me try to get to the bottom of this. We don't need further argument on it. Evidence can go to impeachment if it's not used with a witness, technically speaking, right? It doesn't have to be used with a witness to undermine testimony in that direct way.
MS. COMEY: It depends on the type of impeachment, your Honor. If this is meant to be prior inconsistent statement, I think the rule requires the witness be shown the statement and have the opportunity to address it and explain it. I may be misquoting the rule, but my understanding of impeachment by a prior inconsistent prior statement, if that's what this was, would be that the witness needs to have the opportunity to see the statement and address the statement. But if that's not the -- if there are other bases of impeachment such as bias, I agree with your Honor that it doesn't necessarily have to come in through the witness.
THE COURT: As I understood it, the upshot of these messages is simply that she didn't refer to the kinds of sexual abuse that she had testified to, and that was why the defense thought that it was relevant to impeachment. If that's true, then it becomes an authentication issue, and the government isn't hanging its hat on authentication, right?
MS. COMEY: No, your Honor. I do think that these messages have a bit of an issue that we had flagged the other day, which is that, as you'll see, the green messages don't say who is sending them. So that was part of the issue with these messages. We don't dispute that they came from the device the defense says they came from, though. And so I think part of the confusion is that, as your Honor pointed out, the way we proceeded through trial is we have these arguments and then the foundation is laid, the exhibit is shown to the witness, and then the parties -- the proponent offers it, and most of the time, your Honor then admits it, but sometimes your Honor has not admitted the exhibits depending on how the questioning happened. Sometimes it's reargued.
THE COURT: Let's get real here. That is how everyone understood it happening. There may have been an oversight here. I have a copy of the transcript up. There's a parens in there, I don't know where that came from because I didn't say something in a parens, but under these circumstances, if you look right above that, I did ask Mr. Steel exactly what the basis was for putting this in, and he did in fact say the reason why it was relevant here was that she was showing -- she was airing her grievances and showing her state of mind, and what she did not say is that Mr. Combs did all these bad things to me previously. So it is what we were discussing.
MS. COMEY: I think that's right, your Honor. I will just note then, I agree with your Honor that if that is the basis of admitting it, it's admitting it under 803.3, showing state of mind. There's no right to have her on the stand. I would just note that the defense has in other contexts suggested otherwise when we have, for example, attempted to offer statements of Ms. Ventura after she left the stand for her state of mind, they have suggested that they have some right to have those messages shown to Ms. Ventura, and I just want to make --
THE COURT: I'm pretty sure I rejected that.
MS. COMEY: I think that's right. I just want to put out there that we're getting some inconsistent arguments from the defense.
THE COURT: We may be getting inconsistent arguments, bust as long as I'm inconsistent, then we're okay.
MS. COMEY: I agree, your Honor, and I appreciate your consistency.
THE COURT: Okay. Hearing there's no authentication objection, when we start tomorrow at some appropriate juncture, you should just make a record that you're introducing those into evidence and they'll be admitted.
MS. GERAGOS: I will. Thank you, your Honor.
THE COURT: Anything else? Is there someone from the marshal service that can join me briefly in the robing room. Just hold here for a second.
(Pause)
THE COURT: So for the reasons that Ms. Comey expressed, I don't believe that there's any kind of Sixth Amendment issue. However, I do want to furnish the defense with access. And so for today, at the very least, you can use this courtroom until 6:00 p.m. The marshal service will be here, but I take it, Mr. Agnifilo, you said that that won't be an issue?
MR. AGNIFILO: Not an issue.
THE COURT: So that's what we'll do today. I'm going to keep trying to figure out what we can do at least for the remainder of the week, because I think that's the primary issue, is that we have remaining three days of this week where you'd like some more time.
MR. AGNIFILO: I would love more time. Anything your Honor could get, we would treasure.
THE COURT: So we will do that for today. So everyone else should get out of the courtroom, as will the Court.
(Adjourned to June 4, 2025, at 8:30 a.m.)