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. June 5, 2025 10:40 a.m. Before: HON. ARUN SUBRAMANIAN, District Judge -and a Jury- APPEARANCES JAY CLAYTON Interim 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- HARRIS TRZASKOMA LLP 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 Shannon Becker Paralegal Specialists Raymond McLeod, Paralegal
(Trial resumed; jury not present)
THE COURT: Good morning, everyone.
MR. AGNIFILO: Good morning, your Honor.
THE COURT: Can you all hear me?
MR. DONALDSON: Don't have a deputy.
THE COURT: All right. Now you can hear me. Good morning, everyone. First, just really a reminder to the parties and to everyone who is here in court, while this is a large courtroom, we are all packed in here and we have a lot of jurors. So I just want to remind everyone to make sure that you are minding your facial expressions and there should be no attempts from anyone here to interact with, communicate with, or influence the jury. And I've reminded and asked the security here that's in the courtroom as well as the Court staff to monitor this conduct and report on any violations. If there are violations, the Court will take swift action. Now, while we are all here, I want to remind everyone in this courtroom, as well as in the overflow courtrooms, that they are not to, in any way, shape, or form, document the witness who will be testifying after Ms. Bongolan, Jane, in any notes or in any sketches or in anything of that kind. The courtrooms will be monitored by court security.
Any use of devices or other documenting of the witness's appearance or anything of that nature will result in severe consequences, including possible sanctions. And while I am speaking to the people in the overflow room, it's a good time to remind them that the overflow courtrooms are an extension of this courtroom. So everyone who is in the overflow courtrooms should act as if they are here, present in front of the Court in this courtroom. And that means acting with appropriate decorum. Should be quiet while there's testimony being given and court is in session, and there should be no conduct that would be inappropriate if you were sitting here in courtroom 26A. The next issue is the testimony concerning the conversation between Mr. Holladay and Ms. Bongolan that the Court addressed at the close of the session yesterday. The Court agrees with the defense that further questioning on that conversation would be improper.
One, the government had the opportunity to establish a foundation for the questions that they wanted to ask and the testimony they wanted to elicit, and they declined to do so except by asking about the statement. It would be improper to permit the government to now try again on redirect examination. But more importantly, the defense, in its response, makes a fair argument, a good argument, based on rule 403, that the relevance to this criminal case of statements that Mr. Holladay may have made about compromising a civil claim that Ms. Bongolan had contemplated is tenuous at best and inconsistent with what rule 408 contemplates. And so based both on the failure to establish a foundation under the hearsay exceptions advocated by the government on direct as well as rule 403, the Court will not permit further questioning on that conversation. Now let's turn to the Jane exhibits. The first issue is a letter from the press concerning the sealing of exhibits. My understanding, Ms. Comey, is that these exhibits will not be shown in real time to the gallery or to the overflow courtrooms, but that they will be redacted and then provided to everyone who is requesting them. Is that fair?
MS. COMEY: That is exactly right. And that is the same process that Judge Nathan allowed us to follow in United States v. Maxwell.
THE COURT: Now, can you do that -- well, not you personally, but can your staff do that same day? Because I understand the press's concern is they are aware and they understand the concerns, but they are also the press and they need to report on these things as they're happening. And so if the timing is such that they only receive the exhibits a week later or even more, that would be inappropriate, they say.
MS. COMEY: So, your Honor, what we can do for certain is release any photos or videos that do not depict Jane same day. That is easy because there are going to be photos and videos shown during her testimony that will depict, for example, a scene or just the defendant. And those we can easily release. The text messages will take quite a bit of time because there is so much individual personal information in them. And I actually do feel an obligation to personally read them before they're released to the press given the sensitivities with this witness. So I will be personally reviewing them. But what I will say is in terms of the press and the public's access, I'm going to have Jane read out loud any text messages that I want the jury to draw their attention to. So the press and the public will hear them in real time and then will have the transcript of them. There are a couple of exceptions when there are sexually explicit messages. Instead of making her read them, I will ask her a general question of are you texting him about a sex act here. I don't think there's a real public interest in having to get those sexual messages same day. So I think that would vindicate the interests, and we would make our best efforts to redact these and produce them as quickly as possible. The process we're setting up is to have a team of paralegals who are not assigned to this case have an initial run at the redactions, and then I will review them to make sure nothing is missing. That may take more than same day, your Honor.
THE COURT: Do you have a -- I'm not holding you to this, but just a general timeframe? Because I think the press really said, well, we've done this one time already and it just took too long. That was their concern. Do you have a ballpark sense of how long this would take?
MS. COMEY: Your Honor, if I could get Thursday's out by the end of the day Friday. If I could get Friday's out by the end of the day Saturday. If I could get Monday's out by the end of the day Tuesday.
THE COURT: You've got a lot going on. So you can understand that I -- there's some flexibility there, but...
MS. COMEY: I appreciate your Honor giving me more time than I was willing to -- than I was giving myself.
THE COURT: To put it bluntly, don't kill yourself.
MS. COMEY: Thank you, your Honor.
THE COURT: Do the best that you can. But with that understanding, there may be someone who is representing the news organizations that filed the application. You've heard what Ms. Comey said, and if anyone wishes to be heard here, they can raise their hand and we'll hear you. Ma'am, you can come up and just come to the lecturn and please identify yourself and then you can explain any contrary position you have or maybe you say that that sounds good and we can move forward.
ABIGAIL EVERDELL: Yes, your Honor, Abigail Everdell, Davis Wright Tremaine, for the news organization.
THE COURT: Okay.
ABIGAIL EVERDELL: So the government's request yesterday, which I appreciate has been somewhat narrowed today. But not enough unfortunately, is to have public display of all of Jane's testimony, which we understand will last five days turned off. So the press and public cannot view these exhibits as they're being introduced. This goes too far. We are asking the Court to deny this request and ask the government to redact its exhibits before they are introduced into evidence so the public and press can adequately follow what's going on and exercise the full extent of the First Amendment right to observe this criminal trial. To be clear, we are not asking to be shown un-redacted exhibits. But what the government is proposing is to prevent contemporaneous, real-time access to the entirety, public and private portions of these exhibits. Because, after months of preparing for this trial, they have not had time to redact them.
The Court has already heard from my colleague, Rob Balin, last month on the importance of preserving the press and public's First Amendment right of access to criminal trials. I am not going to rehash that. Suffice to say, there are core Constitutional principles at stake hear. The news organizations recognize that in cases like this one, the need to preserve the anonymity of victims of sexual violence can justify limited, narrowly tailored impingements on that right. But what the government is asking for is not sufficiently narrowly tailored. The government's narrowly tailored relief is being allowed to redact these exhibits at all. And now the government is trying to use that as a springboard, and asking not only for redactions, but also for the concededly public portions of these exhibits to not be shown to the press and public as they are admitted into evidence across, again, what we understand to be five days of testimony. This is not a short amount of testimony.
This would enormously burden the press's ability to report on this trial and the public's ability to understand it. Reporters at news organizations cannot be expected to understand or timely report on testimony concerning exhibits they cannot see. And I appreciate the government's proposed solution of having Jane read into evidence certain portions of the exhibits that they're asking her about, but that is not the full context. Both sides of the conversations are part of these exhibits. There's visuals that are parts of these exhibits to the extent they wouldn't otherwise be redacted. There is a full context that is exactly what the press needs to see in order to accurately report on what's going on. And the proposed solution of releasing these exhibits, the releasing of the redacted copies on a rolling basis some time after Jane's testimony, that's no solution at all. And in our letter, we noted that the Second Circuit has repeatedly emphasized in Lugosch, in In re NBC, in ABC v. Stewart, just to name a few, in matters of news coverage delayed access is not effective access. And in In re NBC, for example, your Honor, there was a delay of a single day, and the Court said that that was not enough. You needed to have contemporaneous presence at proceedings to fully understand what's going on.
THE COURT: So if I can ask you just a quick question.
ABIGAIL EVERDELL: Please.
THE COURT: There was a prior application that was made by your clients, and in that application, they suggested a potential compromise that, I think, three designated news organizations would have access to un-redacted exhibits with the understanding that they would not disclose the information that Ms. Comey had indicated. Meaning personally identifiable information, things of that nature, that would compromise the victim witness's anonymity. Is that part of this application as well? Meaning, that you raise a timing concern and wouldn't that be addressed and eliminated if three news organizations were able to contemporaneously report on the exhibits having viewed them with that understanding that they would not report on the material that is -- that would be redacted, and properly so given the Crime Victims' Rights Act and the other concerns that have been raised in this case.
ABIGAIL EVERDELL: Your Honor, I will point out that the previous application was for access for materials that would have otherwise been redacted entirely, as we understand it. Things that were not going to be released from the public, but that the press wanted to understand despite their context.
THE COURT: Exactly. I'm saying exactly the same thing. You would get the exhibits. They would be un-redacted, but it would be with that understanding. The three news organizations who had access to those would not report on or further disclose any of the material that would be redacted. So in all ways, it's the same as the original application.
ABIGAIL EVERDELL: So, yes, your Honor. I don't want to reject that option outright. I would say that the understanding --
THE COURT: I heard the first part where you said yes. So I heard that part. But with that, Ms. Comey, let me just get your reaction just to that because I know we also have timing issues and I want to --
MS. COMEY: Yes.
THE COURT: And that may be easy and maybe we have some faith in our news organizations that they will stick to their promises given that they have tried to do so from the inception of this trial to this time.
MS. COMEY: So, your Honor, I have a few reactions to that. While at first blush that might seem like a workable solution, the problem is that within Jane's text messages, there are references to identifying information that would not be apparent to someone who does not know her and her background and her personal life. So references to her child and her child's name, references to other family members and close people, including some references to issues that were raised in the defense's under seal letter to your Honor in which they explained why they were not objecting to this witness testifying under a pseudonym. And those, and that content, which is interspersed throughout some of these text messages, is why I am going to be personally reviewing them to make sure that that information is redacted.
And even if these reporters, who are not officers of the Court and would not be taking any sort of oath, even if they were to agree not to reveal her name, or her phone number, they would not know looking at the face of some of these messages that I'm going to be going through that there's identifying information within some of these messages that I'm not going to have Jane read out loud. I will also note, your Honor, that the cases that counsel just referenced, as I understand it, all refer to access to the testimony, access to the courtroom. And that those cases were cases where courts rejected the proposition that the press could be kept out of the courtroom and then just read the transcript the next day. So the one-day delay that was talked about in those cases was a one-day delay in hearing about what happened in the courtroom at all. That's not what we're talking about here.
I'm not aware of a case and I have not seen one cited by the press that requires contemporaneous review of exhibits. Indeed, before we had all of these screens and all of this technology, the way cases were tried was that a piece of paper would be handed to a witness, a piece of paper handed to the jury. The press wouldn't be able to see it at all. So I can't see how the common law or the interpretation of the First Amendment since our founding would possibly contemplate contemporaneous review of exhibits when that's only been possible in very recent years. So I don't think there's a real Constitutional issue here when the press will be able to hear in real time the descriptions of and the text of whatever exhibits are being discussed, and then in very short order will have access to those exhibits. And especially when weighed against the very serious privacy issues that this witness has, so serious that the defense consented to her pseudonym. I just do not think that the relief the press is seeking is warranted.
ABIGAIL EVERDELL: Your Honor, if I could just address a few things.
THE COURT: Let me ask you one thing in particular.
ABIGAIL EVERDELL: Of course.
THE COURT: Which is do you have a case that says the press must have contemporaneous access to exhibits?
ABIGAIL EVERDELL: To exhibits as they're presented at trial?
THE COURT: Yes.
ABIGAIL EVERDELL: Your Honor, I'm not sure the situation has ever come up before. But I will say the idea that we should be sticking to the methods that happened during the past when the technology wasn't in place, that there's a case that says that since we have been able to copy exhibits from the point at which it's been possible to copy exhibits, exhibits must be made available to the press for copying. The principle of openness expands as our technology expands. And what the press wants is to have a full and complete and accurate understanding of what's going on. We're not asking for access to sensitive information that would be otherwise redacted. We are not asking for Jane's identity. And we understand the government's position here. We truly do.
THE COURT: So you would agree that the type of information that Ms. Comey is talking about that would be properly redacted and you would not have an objection to that not being made available to the public and press; is that fair?
ABIGAIL EVERDELL: Not having seen the redactions themselves, we do not object to reasonable redactions necessary to preserve Jane's anonymity.
THE COURT: So then your objection is really one of timing.
ABIGAIL EVERDELL: Yes, your Honor.
THE COURT: And your proposal is that we adjourn for the day and potentially for several days while the government redacts these documents and then come back so that they can be shown to the public in real time in redacted form. And you're saying that that's the narrow tailoring that would be required to accommodate and live up to the qualified First Amendment right of access.
ABIGAIL EVERDELL: Your Honor, we appreciate how hard it is to keep the wheels turning on a trial like this. And we're not here intending to gum things up. But what we're talking about is not a minor, small right. We're talking about a right that Justice Brennan described as "essential to the objective of maintaining public confidence in the administration of justice." And in ABC v. Stewart, the Second Circuit said the ability to see and hear a proceeding as it unfolds is a vital component of the First Amendment right of access, not an incremental benefit. And if what's necessary to preserve that right is reordering the witnesses somewhat, even briefly delaying the trial to allow the government time to redact its exhibits before they are introduced, then, yes, your Honor, we think that would be warranted.
THE COURT: All right. The application will be denied for the reasons stated by the government as well as the accommodations that are being made. And when I say accommodations, I mean that as Ms. Comey had noted, the testimony given by Jane will be available in real time to the press and public. And as Ms. Comey indicated as to these text messages, the actual exhibits that the press is interested in receiving, those will be read out loud by Jane where the government seeks to introduce those messages. So the public will have the actual content of what is being presented in court to report on in real time. The only solution as to the actual access to exhibits in real time that I'm hearing is to delay these proceedings, which I don't think is consistent with what the First Amendment requires. I believe that we do have a narrowly tailored solution to the issue, and to balance the defendant's right to have this trial move forward, the rights of the witnesses to testify, and the right of the government to proceed with this case, which has been pending now for several weeks, I think override any qualified First Amendment interest that the news organizations have with respect to the real-time access to redacted exhibits right now. And so for that reason, the application is denied. Ms. Comey, since we are running short on time, as we have a shortened day.
MS. COMEY: Yes, your Honor, we won't get to any of the other exhibits before lunch.
THE COURT: That's what I was going to ask you.
MS. COMEY: Thank you, your Honor.
THE COURT: Thank you so much. I really appreciate it.
ABIGAIL EVERDELL: Thank you, your Honor.
THE COURT: With that.
MS. SLAVIK: Your Honor, before we bring in the jury, I just wanted to flag one thing briefly for the Court. Following Ms. Bongolan's testimony, the government intends to offer a couple of exhibits. These exhibits are all related to a screenshot of a conversation between Kristina Khorram and Casandra Ventura in which Ms. Ventura tells Ms. Khorram about this balcony incident that Ms. Bongolan has testified about. This particular exhibit, the actual screenshot was marked as a Defense Exhibit and was shown to Ms. Ventura on cross-examination, it was not offered into evidence. The government plans to admit that screenshot as well as metadata and another related exhibit after Ms. Bongolan's testimony. I understand that the defense will object to that, so in an effort not to delay anything today, the government will e-mail what it intends to offer to the Court and maybe we can take it up on the next break.
THE COURT: What's the nature of the objection?
MS. SLAVIK: My understand being -- I won't speak --
MS. SHAPIRO: Your Honor, I would be happy to address it. Can we put --
MS. SLAVIK: We can...
MS. SHAPIRO: Put a version of one of the texts on the screen. So, your Honor --
THE COURT: Well, first, let me hear the basis for admission. This is under 801(d)(1)(B) or?
MS. SLAVIK: Your Honor, I think there are multiple bases for admission. First, as your Honor pointed out, this is a prior consistent of Ms. Ventura. The declarant, Ms. Ventura, testified and was in fact subject to cross-examination on this very statement. The defense crossed Ms. Ventura on this statement.
THE COURT: So this addresses the requirement in Caracappa?
MS. SLAVIK: Exactly. Exactly. It's also admissible, your Honor, under 803(3) to show Ms. Ventura's state of mind. As your Honor can see with the exhibit on the screen, Ms. Ventura recounts the incident. She says he came into my house when my friends were here and we were all sleeping. They woke me up because he was ringing the bell crazy at 3:00 a.m. And when he came in, I went to my room and he went at Bana and choked her and then dangled her feet off the balcony. This is crazy. I have to stay away. So, your Honor, I think this is important in that it shows Ms. Ventura's state of mind. The content of this message, it not only relays the incident, but it immediately provides Ms. Ventura's reaction to the incident. In other words, this is crazy, I have to stay away. I think this is heartland 803(3) state of mind evidence. It's also important here I think that Ms. Ventura is expressing her fear of Mr. Combs to Ms. Khorram, who is an agent and a co-conspirator of Mr. Combs. This message shows Ms. Khorram's knowledge of Ms. Ventura's fear. In other words, this message is used to show the effect on the listener, Ms. Khorram. And under those several bases, the government's position is that this screenshot is admissible.
THE COURT: Can you situate the balcony incident in terms of what's alleged in the indictment? Like, can you connect the dots between the balcony incident and the government's case? Why is it relevant?
MS. SLAVIK: Your Honor, the relevance of this incident, which took place squarely in the middle of the conspiracy, is that it shows Mr. Combs' violence directed not only to Ms. Ventura, but to other people around Ms. Ventura. She is aware of this violence, and because of her awareness, I think that contributes to the coercive atmosphere.
THE COURT: So it goes to coercion because it's evidence --
MS. SLAVIK: Goes to coercion.
THE COURT: Sorry, not to interrupt.
MS. SLAVIK: Of course.
THE COURT: Goes to psychological coercion because she's aware there is violence being perpetrated not only against her, but people in her orbit.
MS. SLAVIK: Correct.
THE COURT: During the time period of the conspiracy. So that's relevant to the substantive 1591 count. It's also relevant to the alleged conspiracy because it also encompasses the acts that are separately changed under the 1591 count.
MS. SLAVIK: That's exactly right. And on that point, I will note this is one of the speaking allegations in the indictment.
THE COURT: All right. Now Ms. Shapiro.
MS. SHAPIRO: Yes, your Honor. First of all, I would like to give the Court a little more context than the government provided. What happened was that, on direct, Ms. Ventura testified that she personally observed this alleged balcony incident and the cross-examination was designed to impeach that testimony because in fact she did not observe it as this -- if this text even relates to it, this text makes clear, the text is hearsay within hearsay. She says, and these are parts that, interestingly, the government chose not to read to your Honor at the beginning. Hey, I just found out some crazy shit. And then she describes the things the government wants in. And then at the end she says, I'm just finding out right now. And we also don't know when this text was sent. But, most importantly, she is reporting what someone else told her. We don't even know who told her because she says he came into my house while my friends were here and we were all sleeping. So it's hearsay within hearsay.
Because, at best, at best for the government, she's potentially reporting what Ms. Bongolan told her, and so that in itself is a hearsay problem. To the extent the government is now apparently I think if I heard them correctly saying it's a prior consistent statement by Ms. Ventura, we attempted to impeach her with this document. And what she testified to was -- and this is at page -- this part of the cross-examination is at transcript 1069 to 1071 for the full context, but we put the text up to try to get her to admit that she had not observed the incident contrary to her testimony, which she did not. And then, you know, we asked her: Did you tell Ms. Khorram that you had just learned something crazy. And then she says: Well, now it's taken down, but I saw that. I did text that. I don't know if that's what I'm referring to because a lot of crazy things happening.
And then if you follow it down, she tries to refresh her recollection: Isn't it true that you learned about this incident after the fact. I saw what I saw. I don't know. So they just can't overcome the hearsay within hearsay problem presented by this. And if they wanted to introduce this text, the time would have been on the redirect of Ms. Ventura. But instead, they liked her testimony that she claimed to have observed the incident and she, you know, testified on cross she didn't remember, she didn't know what the text was referring to. And so to the extent the government is claiming this is in for Ms. Ventura's state of mind, you know, it just doesn't make any sense because what they're really trying to get in is this hearsay within hearsay about what someone else told Ms. Ventura about this alleged incident. I mean, it's a backward looking statement.
THE COURT: No, I understand. All right. Let's do this. So this is something, Ms. Slavik, that you would seek to introduce after Ms. Bongolan's testimony?
MS. SLAVIK: That's right, your Honor. And just to be clear, I think, you know, having heard Ms. Westmoreland's cross of Ms. Bongolan, I think the very clear suggestion from cross-examination is defense's suggestion that this event never happened at all, that Ms. Ventura and Ms. Bongolan are somehow making up this event. So I think that's important context to consider --
THE COURT: So let's say that Ms. Shapiro is right. So you're saying the top level hearsay is either Ms. Ventura's state of mind or the effect on Ms. Khorram of hearing that this event actually happened. And then to the extent that Ms. Ventura heard what she reported from Ms. Bongolan, then that would go under 801(d)(1)(B) because it would be a statement by Ms. Bongolan that is consistent with her testimony that has now been subject to cross-examination.
MS. SLAVIK: Exactly right, your Honor. I think that solves the hearsay within hearsay issue. But the effect on listener and the state of mind, the government is offering --
THE COURT: Does it matter that she didn't remember the text message when she was asked about it?
MS. SLAVIK: Absolutely not, your Honor. And let me just point out that the metadata of this text message, which has been provided to defense counsel, which the government intends to offer along with the screenshot, shows the screenshot, the exhibit we're looking at on the screen, was captured on September 30th, 2016, so very shortly after the incident at issue.
THE COURT: All right.
MS. SHAPIRO: Your Honor, two things. First of all, contrary to the government's points, we don't know from this text message who told Ms. Ventura whatever she heard. And 801(d)(1) only applies to declarant witness's prior statement. The text message on its face doesn't say how she heard about this. It could have been from one of the other friends who were in the apartment. In addition, it's a backward looking statement and it's -- there's a reference to she could press charges. And under Tome that it wouldn't come in even if the prerequisites were satisfied, which they're not, because the text on its face doesn't make clear who told her this and she testified that she didn't remember this.
THE COURT: Understood. Let me ask, Ms. Slavik, just a logistical question, which is, you're not planning to use this with Ms. Bongolan?
MS. SLAVIK: No, we're not planning to show it to Ms. Bongolan. What we would propose is after Ms. Bongolan leaves the stand, we would offer this screenshot as well as the metadata and as well as a capture of Ms. Khorram's contact for Ms. Ventura into evidence and then read the screenshot.
THE COURT: So we can do this at -- I understand you want to do it close in time to Ms. Bongolan's testimony, but if we needed to do this tomorrow so I could take a look at the actual document, that would not do great violence to the government's agenda in terms of presenting this evidence.
MS. SLAVIK: Your Honor, your Honor is right that the purpose of this screenshot is its relevance to Ms. Bongolan's testimony. So the government would strongly prefer to present it at that time. But should the Court need more time to consider these issues, I don't think it would be great violence. Maybe a little bit of violence.
THE COURT: Okay. Fair enough. So we'll pick this up at the next break. With that, nothing further? I'm getting a note.
MS. SHAPIRO: Your Honor, just I think it would be helpful to us on the cross-examination if the Court issued its ruling now if it's at all possible so we know whether this is going to come in or not.
THE COURT: But it's not going to be used.
MS. SHAPIRO: We're not going to use it.
THE COURT: You want to ask questions about it.
MS. SHAPIRO: We're not going to use it obviously.
THE COURT: So what's the purpose of having a definitive ruling now?
MS. SHAPIRO: We'll just need to know, you know, whether -- it would effect the cross.
THE COURT: In what way?
MS. SHAPIRO: Well, we need to know if the Court is -- notwithstanding the fact that the text doesn't say and there's no foundation laid, that a declarant witness's prior statement is contained in the text, we need to know if the Court's view is otherwise. I mean, I don't want to pressure your Honor. I'm just asking, obviously.
THE COURT: All right. Well, let me think about that for a second, because I am being told that the overflow rooms were muted when I gave them at least the initial part of the instruction that I gave to everybody. So let me take this opportunity while everyone is listening and not muted to remind everyone in the overflow rooms that they are not to, in any way, shape, or form, document the witness who is testifying next, Jane, in any notes or sketches or anything of that kind. I think that's the part of my instruction that was muted in the overflow room. So now I have provided it to the overflow room. As to Defense Exhibit 1340, give me one second.
MS. SHAPIRO: That's the one on the screen, but obviously --
MS. SLAVIK: Yes. To be clear, the government would be offering the same substantive exhibit, but with the government's sticker.
THE COURT: Of course.
MS. SHAPIRO: Yeah. The reason, your Honor, is Ms. Westmoreland may choose to question her about it now if they're going to be allowed to put it in. It's just, you know, we didn't want them putting it in after she's off the stand and we never got a chance to -- but we don't think it's admissible, to be clear. But if the Court is going to allow it in, we do not want to be deprived of the opportunity while the witness is on the stand of questioning her about this document. We don't think it should come in, so all of that time should not be --
THE COURT: No, I understand.
MS. SLAVIK: We have no objection to the witness being asked along the lines of what Ms. Shapiro suggested.
THE COURT: All right. So having taken a close look at the text message exchange and hearing the arguments from the government, I do think that this exhibit, restamped with the Government Exhibit number, would be properly admissible for the reasons stated by Ms. Slavik and as reflected in our colloquy, given that on the first level of hearsay, it would be properly admissible as either a statement of Ms. Ventura's state of mind shortly after the incident in question, and it also is being introduced for a non-hearsay purpose of showing that it was communicated to Ms. Khorram, who is an alleged member of the conspiracy charged in Count One. So that's that level. To the extent that there's a second level of hearsay given that the remaining portion of the text message exchange, that would be admissible under 801(d)(1)(B) given the nature of the cross-examination that we have heard to date. In terms of it being ambiguous in the message itself, who Ms.
Ventura, if she heard this from someone else, the other person would have been, the Court finds that applying the standard in rule 104 and looking at the context of the text message and having heard Ms. Bongolan's testimony concerning the incident in question as well as Ms. Ventura's testimony, the person I believe who would have relayed that information to Ms. Ventura would have been Ms. Bongolan. And I think that that is an inference that the jury could reasonably draw and that is supported by a preponderance of the information that has been presented to the Court. So for those reasons, this exhibit will be admitted when the government offers it into evidence. So to the extent there is cross-examination that the defense would like to engage in related to this exhibit, they should go ahead and do so. And the government has indicated they have no objection to the defense doing that. With that, let's bring in --
MS. SHAPIRO: I'm sorry. I just want to put -- I understand you've ruled, but to preserve the objection, I just want to make clear we also object to the Court's finding on the coconspirator. We don't think a sufficient foundation has been laid in the testimony thus far establishing that Ms. Khorram is a co-conspirator to the RICO count. So for those reasons, as well as the reasons in 403.
THE COURT: Ms. Slavik, very briefly, do you want to address that specific point about Ms. Khorram?
MS. SLAVIK: To be clear, this is not being offered as a co-conspirator statement.
THE COURT: No. I think she's saying Ms. Khorram is not involved in the conspiracy, so...
MS. SLAVIK: Your Honor, I think the evidence that's been offered to date suggests strongly that Ms. Khorram is part of the enterprise. And I think that the evidence that will continue to be presented will confirm that. Eddy Garcia's testimony is just one example of Ms. Khorram being part of the conspiracy here.
THE COURT: Understood.
MS. SHAPIRO: Just one last point that the conspiracy, I just want to emphasize, is a racketeering conspiracy. So to establish that someone is a co-conspirator, there has to be evidence that they agreed with Mr. Combs and/or others to engage in a racketeering enterprise that had as its goal committing two predicate acts. And I don't think they're remotely close to that. So I just want to make that record.
THE COURT: Well, for admissibility purposes, the question is whether it's relevant evidence that would be probative of an element that the government has to show. So you may be right that this particular text message doesn't go to like every element that would be needed to prove up the RICO conspiracy count, but it is relevant for the reasons stated by Ms. Slavik. But you have made your record. I've heard you and you've made your objection. Now, after with long last, let's bring in Ms. Bongolan. Welcome back. You can be seated. We are going to bring in the jury so you will have to stand up in a couple minutes, but...
BRYANA BONGOLAN: Thank you.
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(In open court; jury present)
THE COURT: Please be seated. Welcome back, members of the jury. Just to give you a heads up, and thank you for accommodating the time change today. We do have, I believe, a lunch coming in for you. We're going to take a later and shorter lunch break. But I wanted to make sure that you had some food back there while you're waiting. So just a heads up for you there. With that, Ms. Bongolan, you understand you're still under oath?
BRYANA BONGOLAN: Yes.
THE COURT: With that, Ms. Westmoreland, you may proceed.