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 10, 2025 8:40 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 -and- XAVIER R. DONALDSON BRIAN STEEL NICOLE WESTMORELAND Also Present: Lucy Gavin Shannon Becker Paralegal Specialists Raymond McLeod, Paralegal
(Trial continued)
THE COURT: First question for the government.
So at the beginning of yesterday's proceeding, an issue had arisen with respect to one of the jurors. At the time, there was an inquiry with the juror, and at that time the defense had indicated that they had no objection to the juror continuing to hear the case.
The government was going to do some additional research and would advise the Court of its position.
Ms. Slavik, did the government have that opportunity?
MS. SLAVIK: Your Honor, the portion of that conversation that took place in the robing room, that portion of the transcript is under seal.
The government requested the court reporters to provide that portion of the transcript, and after the government receives that, we do intend to submit something further.
THE COURT: All right. And in doing that, as you will see reflected in the sealed portion of the transcript, there was some inquiry as to any legal authority that would be relevant to the situation.
I will tell you that I've looked, and I was unable to find anything. So I will just put that on your radar because you are probably better at this than I am, and you might be able to find the authority on point.
MS. SLAVIK: Very doubtful of that, your Honor, but we will look.
THE COURT: One other issue, just tying up a loose end to Jane's counsel's letter from last week concerning disclosure of Jane's identity online, the Court sent that letter to the marshal service to determine whether any of the individuals who had revealed Jane's identity online had been in the courtroom. And we will inform the parties if there is any issue to address along those lines and they are certainly on the lookout for anyone who was in the courtroom who in any way violated this Court's order or disclosed Jane's identity. That's to follow up on that issue.
As to the defense's motion for a mistrial that was filed on this Saturday, for the reasons set forth in the government's June 9, 2025 letter, the motion is denied.
The only thing the Court will add to the government's letter is that to the extent that the defense's letter suggests that the government hamstrung the defense's cross-examination of Ms. Bongolan by objecting and initiating sidebars, no interference happened, and the defense was fully able to, and did, undermine or was able to attempt to undermine Ms. Bongolan's testimony that the event in question occurred on -- did not occur on the date that she testified to. The defense was also able to, and did, attack Ms. Bongolan's testimony concerning other circumstances of the alleged incident.
This is not fodder for a mistrial. It is the adversarial process at work. The defense engaged in vigorous cross-examination to expose inconsistencies in Ms. Bongolan's testimony and to undermine her credibility.
As for the exhibit admitted by the Court, GX-361C, for the reasons previously set forth by the Court, it was properly admissible and, if anything, the exhibit as read by the defense supports their narrative, and not the government's; namely, the way the defense reads it, Ms. Ventura only learned about the balcony incident after the fact. That's why the defense, not the prosecution, was the first to use this document during their cross-examination of Ms. Ventura in attempt to undermine her testimony that she had witnessed the alleged balcony incident. So the defense will now be able to use this exhibit to undermine both witnesses' testimony that Ms. Ventura witnessed the incident, and separately they can argue, based on their vigorous cross-examination of Ms. Bongolan, and evidence of Mr. Combs being out of town on September 26, 2016, to attack Ms. Bongolan's testimony that the incident happened at all. Given all of this, it is unclear what prejudice the admission of an exhibit that supports the defense's narrative would possibly cause.
The Court makes one additional observation. The defense was aware before trial about the nature of Ms. Bongolan's and Ms. Ventura's account of the balcony incident from the government's 3500 material and pretrial filings. They also had Mr. Combs' travel records and even GX-3612C which they read to suggest that Ms. Ventura did not see the event in question, and yet they filed no motion before or during these witnesses' testimony to preclude inquiry on the balcony incident.
This speaks volumes. The defense didn't complain earlier because the relevance of the balcony incident is clear, and their arguments would not be the basis for exclusion, let alone a mistrial, but rather material for a strong and vigorous cross-examination which is precisely what happened.
So the motion for a mistrial is denied.
On the motion to strike exhibits --
MS. SHAPIRO: Your Honor, I apologize. Can I put a few more things on the record regarding this?
THE COURT: You certainly can. I'm going to go through the rest, and I'll give both sides a chance to respond to anything that they feel is necessary.
On the motion to strike Government Exhibits GX-E-331-FR and HR, again, for the reasons stated in the government's June 9, 2025 letter, the motion is denied.
The Court previously held that these exhibits, which the government substantially redacted after initial discussions with the Court and defense, were are admissible under Rule 803(3) or Rule 801(d)(1)(B), and the defense's letter doesn't add arguments on these issues.
In terms of the 403 objection, the exhibits are relevant to the government's contention that Jane was not willingly engaging in the incidents in question, but rather that she felt she was duped into them by promises of a relationship that never materialized. Further, the defense's proposed jury charge itself notes that to prove fraud, the government must prove a misstatement or omission of a material fact to entice the alleged victim. That's from the defense's request to charge at page 46. The exhibits in question are, at the very least, relevant to falsity of materiality and enticement.
While materiality is an objective inquiry, evidence that the alleged victim believed that they were duped, and duped as to an important matter, is certainly admissible to inform that inquiry. This is from United States v. Livtak, 808 F.3d 160, 175-176 (2d Cir. 2015).
This a quote from the Court:
"We conclude that on the trial record before us, a rational jury could have found that Livtak's misrepresentations were material. The trial record includes testimony from several representatives of Livtak's counterparties that his misrepresentations were important to them in the course of the transactions on which the securities fraud charges were predicated, and that they or their employers were injured by those misrepresentations. This testimony precludes a finding that no reasonable mind could find Livtak's statements material."
As for unfair prejudice, the Court disagrees that the notes brand Combs as a liar for all purposes, as these were Jane's private ruminations on her thoughts about Combs' behavior in a specific context. Especially after the substantial redactions made by the government on the urging of the Court and the defense, there is nothing in the notes that is more prejudicial, and certainly not unfairly so, than what Jane has been testifying about over the past three days and what is contained in the hundreds of text messages that were admitted without objection from the defense.
So the motion to strike those exhibits is denied.
On the motion to recall Dr. Hughes to offer additional testimony, this motion is denied for the reasons set forth in the defense's June 9, 2025 letter.
As for Ray, the Second Circuit affirmed the admission of Dr. Hughes' testimony in that case on an abuse of discretion standard holding that the district court's admission of Dr. Hughes' testimony was not manifestly erroneous. However, the Court of Appeals reiterated one of the main concerns voiced by the defense in this case: That a district court may commit manifest error by admitting expert testimony where the evidence impermissibly mirrors the testimony offered by fact witnesses or the subject matter of the expert's testimony is not beyond the ken of the average juror. That's from the slip opinion at pages 21-22 quoting United States v. Amuso, 21 F.3d 1251, 1263
(2d Cir. 1994).
THE COURT: In applying the standard, the Second Circuit did not say that testimony of the kind offered by Dr. Hughes would be admissible in every case, but, rather, left it up to the exercise of the district court's discretion. That's at the decision at page 25.
In this case, for reasons previously addressed on the record, the Court determined that while Dr. Hughes' explanations of the counterintuitive responses of victims to abuse met the Rule 702 and 403 standards, including why victims stay in abusive relationships, trauma bonds, love bombing, coping strategies, delayed disclosure and memory. Other aspects of Dr. Hughes' disclosures, and specifically the explanation of coercive control and the intentions of abusers, raised the specter of the concerns noted by the Second Circuit in Ray on the facts of this case and the disclosure Dr. Hughes furnished here.
Indeed, much of the emphasis in Ray in affirming the district court's decision focused on the beneficial testimony that could be offered on contextualizing the seemingly counterintuitive behavior of the victims. That's the slip opinion at pages 27-28.
This is precisely the area where Dr. Hughes was permitted to testify. In short, the court carefully weighed the admissibility of this testimony under Rule 702 and balanced the interest under Rule 403, and Ray does not suggest that either of those evaluations by the Court should be revisited.
The government also argues that the defense opened the door to further testimony from Dr. Hughes based on their attacks to Mia's credibility by showing her positive messages to Combs and posts throughout her employment with Combs and thereafter. However, victims' counterintuitive responses to abuse was precisely the area that Dr. Hughes was permitted to testify, as the defense notes in their letter. Indeed, the government elicited on direct several pieces of testimony from Dr. Hughes that would pertain to that precise area, including testimony precisely on the issue raised by the government on page 21 to 108 of the transcript: "Q. Dr. Hughes, can victims applying these various coping strategies that you've been testifying about still express love and loyalty to their abuser? "A. Yes, and often they do. That's back to the trauma bond. Often they still have positive and loving feelings towards their abuser even after they've left for years. There's still a part of them that loves the initial person that they fell in love with."
Now Dr. Hughes' testimony was focused on romantic relationships and not the kind of employment relationship that Mia had. Now that may be as a virtue of the fact that Dr. Hughes was testifying right after Ms. Ventura and before Mia had testified or it might be that Dr. Hughes' disclosure was simply focused on the interpersonal dynamics of abuse and victim behavior in the context of romantic relationships as opposed to employment relationships. Either way the government could have amplified this particular testimony to address what they knew was coming, a cross-examination of Mia based on her myriad social media posts, texts, and emails to Combs, et cetera. But they didn't.
Under these circumstances, permitting the government to recall Dr. Hughes, an atypical step that might signal to the jury that her testimony is of elevated significance, is unnecessary and would potentially prejudice the defense, as the defense points out in their letter.
For that reason, the motion is denied.
The Court will address tomorrow the issue concerning the juror after the government has had an opportunity to review the transcript and the relevant authorities.
With that, I think that the only outstanding issue -- and, Ms. Shapiro, I'll obviously let you respond on anything you want to, and also the government. I think the only outstanding evidentiary issue is on GX-1410 and 1411. I think where we last left that issue is, Ms. Shapiro, you were going to review those two summary charts to determine whether there were any hearsay issues and meet and confer with the government. We don't need to address that right now. I just wanted to make sure that there wasn't anything else that was missing.
MS. SHAPIRO: No, your Honor. And we will be meeting and conferring with the government about that.
THE COURT: Very good. Now you wanted to address the motion for a mistrial.
MS. SHAPIRO: Yes. Actually, a couple of things.
So with regard to the motion for mistrial, I just wanted to make a couple of points in response to both what the Court said and the government's letter, just so the record is complete. I understand your Honor has ruled.
So, first of all, with respect to the idea that we should have raised this before the testimony, I think that misunderstands the nature of what happened and how, you know, trials ordinarily proceed, which is that we didn't know what she was going to say until she took the stand. We were obviously prepared to cross-examine her, and did, when it turned out, certainly in our view, she perjured herself as to these events relating to the balcony incident. So I wanted to make that point as well.
The government's response kind of ignores the fact that Ms. Bongolan insisted repeatedly that she got all the injuries at the same time at the hands of Mr. Combs from this supposed balcony incident, and the metadata from the photographs related to the leg injury was from September 26, the date on which the government certainly should have known Mr. Combs was not in Los Angeles and was in fact on the East Coast.
And, you know, sometimes it's obvious that metadata is wrong. So, for instance, it will just have a crazy date like you know 1949 or something. This metadata obviously looked quite accurate. It was at or near the time of the alleged incident, and so there's really no -- there's no basis to pretend that Ms. Bongolan didn't actually testify that she got these injuries on September 26.
And then with regard to the government's claim that they were unaware of the perjured testimony, if there was any perjury, the standard is "knew or should have known," and the government offers no response regarding the hotel record or the other discovery that we cited.
The last thing --
THE COURT: What's the response that in Ms. Bongolan's direct examination she certainly testified that she was unclear on certain of the details concerning the balcony incident. And then on redirect examination, she clarifies that she was not a hundred percent sure about the precise timing; meaning, other than the fact that the picture and the metadata said September 26, 2016, and on direct examination the government certainly did elicit that that picture was taken, I believe, the morning after or the same day as the balcony incident. Is there something else that would indicate that there was a discrepancy in the timing that the government should have been aware of prior to her testimony; meaning, something in the 3500 material or elsewhere that would have indicated that Ms. Bongolan was affirmatively stating this happened on September 26, at a time when the hotel records and other materials would show that Mr. Combs was in New York?
MS. SHAPIRO: Well, I'd say two things in response to that. One is that she repeatedly indicated, and the government was aware and deliberately elicited the fact, that she claims she received all the injuries at the same time, and that they were all caused by Mr. Combs.
And, in addition to that, and I think we quoted this in our letter, the prosecutor asked her something to the effect of "And do you remember all the details?" And she said no. And then the prosecutor asked, "Are there certain details that stick out in your mind?" And she said yes. And then the questioning proceeded to like, "Well, what details were those?" I'm not sure that's the exact question, but essentially the next question went into these injuries.
And so the clear and strong implication was that one of the details that stuck out in her mind was that she had received this leg injury which she described in detail and, you know, talked about -- yeah -- so here's a 3500 that my colleague has recently sent to me -- provided to me. 3508-023 page 1, it's just one example.
It says: Photos of injuries. Bruise. September 26, 2016. Back of thigh deep cut with some bruising around it. Balcony incident happened early in the morning. Photo taken later that day at BB's apartment in Beverly Hills.
So, you know, the government was aware that this was her story. They elicited it deliberately. They had the hotel records which they had marked as an exhibit. You know, there was additional discovery that included material related to Mr. Combs' schedule, his travel, things that his assistants were organizing that the government had in its possession. And so there's really no basis to conclude that the government wasn't aware that this testimony was false.
And with regard --
THE COURT: Well, isn't an available explanation that the government screwed up, and that Ms. Westmoreland used that as an opportunity to have a real Perry Mason moment in federal court and she, you know, had a great cross-examination and, you know, blew a hole through the direct testimony of Ms. Bongolan? And so why is that grounds for a mistrial? Isn't that grounds for when you're, you know, done for the day in the defense war room, you're saying great job, you know, on that cross-examination. I mean, isn't that how it usually goes?
MS. SHAPIRO: It's certainly true her cross-examination was terrific, I agree with that, but I don't agree -- and I think that's what the standard is: "Knew or should have known." The government has an obligation, a very strong and important obligation here, to ensure that, you know, that -- certainly they're entitled to zealously represent themselves, but, you know, they have to act within the bounds of the law, and they have a higher duty to make sure that the testimony is true. And here there's all kinds of evidence that they should have known that this was false. And I think the fact that they elicited the other testimony from Ventura actually underscores this because when Ventura was on the stand, she testified that she saw this incident notwithstanding the evidence in the message. And I wanted to say one other thing about that in a minute as well. But so they go ahead and elicit this testimony from Ms. Ventura that she claims to have seen this. And then knowing that there's some -- there's documentary evidence that seems to refute that account, and suggests that if she heard anything about it, it was after the fact. And then they go ahead and elicit this testimony. So I would respectfully submit under all the circumstances, it's clear what was going on here, and, at a minimum, it satisfies the should-have-known standard, your Honor.
With regard to the text message, I'd also point out that, you know, the government is trying to have it both ways. They got it admitted on the premise that it supported Ms. Bongolan's testimony, and here in their letter they say, as I said when I was arguing against its admission, that it may or may not have related to Ms. Bongolan's experience on the balcony. That's at page 3 of the government's letter.
THE COURT: Well, I don't think that that's what they're saying. I think what they're saying is there are various text bubbles in that particular document, and the text bubbles that the defense relies on to suggest that Ms. Ventura did not see the balcony incident might actually pertain to other issues. For instance, an apparent phone being flung off the balcony and did someone find the phone and things like that.
And because of the rapid fire of text message communications, it's not lucidly clear what that refers to. I will say that if you actually look at Ms. Ventura's message, she appears to say that she was there and was woken up at the time that this occurred, and so if you actually look at the text talking about the balcony incident, I don't believe it's a hundred percent clear whether she saw it or not because she does agree that she was there. It's not as if she was saying, "I slept through this thing. I have no idea that he even came over and then I was told about it by somebody after the fact." That's not what the actual exhibit says. You can argue otherwise. That's something you can use the exhibit to argue.
MS. SHAPIRO: I respectfully disagree, and I also think the Court's interpretation is not even what the government says, and I don't agree with it. I think the text message is pretty clear on its face. She does say that she was woken up, and there was a commotion, or words to that effect, but there's nothing in the text message to suggest that she actually saw the incident that Ms. Bongolan described to the jury. And in fact she says twice, both right after the part about the phone, and then after she describes being woken up, she again repeats, you know, "I found out about this later," so -- or words to that effect. So I don't think that's a fair interpretation of either the text message or even what the government was arguing. I'm sure now they'll stand up and say, of course that's what they meant. But I don't think that's fair.
And at the very least, your Honor, we would, you know -- we understand that the Court has denied the mistrial. I also just want to point out this is only our second motion for a mistrial. I'm not sure why the government had said we had made three. But, in any event, we would ask in the alternative that the Court would consider a Napue instruction to the jury that this testimony was perjured testimony.
THE COURT: Well, let me hear from Ms. Smyser as to what's the kind of explanation on the timing from the government's perspective, that is consistent and does not meet the "knew or should have known" standard.
MS. SMYSER: Your Honor, I think many things could be going on here, as we outlined in our letter. The metadata could be wrong. Ms. Bongolan could misremembered exactly when she took photographs. There are many things that could be going on that explain the series of events.
I think the point is what Ms. Shapiro is focusing on is whether the government knew or should have known about alleged perjury, but that is just one part of a four-part test. Also to meet the standard, they have to show that there was perjury, which there wasn't. This is the exact kind of thing that can be explained by confusion, mistake, faulty memory. Those are the kinds of things that the case law outlines.
In addition, in order to meet the four-part test, the perjury must not come out at trial, which I think, as has already been explained, there was lengthy and vigorous cross-examination here, so I think there is no question really here that the four-part test as outlined by the case law hasn't been met.
THE COURT: And I suppose the innocent explanation is, look, this happened nine years ago. And so Ms. Bongolan, who readily admitted that she was using drugs and various substances during this entire time period — and thank goodness that she is now sober — but during that time period when she was living that kind of life with those substances, and so it may be understandable that she would be off a little bit on the timing and sequence of things.
So even if she had said in the 3500 material as, you know, in discussions with the government that she believed the picture had been taken the same day, it might be that the picture had been taken a few days later in which case it would be consistent with the travel records and everything else.
So, for instance, if it happened the previous week or before September 24, I believe that's the kind of key date, then, sure, it could have happened earlier in September. She took the pictures on September 26, and that would be fully consistent. But, in any event, the defense had the opportunity to, and did, on cross-examination attack the timing that was elicited on direct. So there you go.
MS. SMYSER: That's absolutely right, your Honor. And I will also say, as the Court pointed out, Ms. Bongolan has said many times she doesn't remember all the details of the events, and there could be many explanations for that, including drugs, including it's almost a decade later.
I also want to put one more thing on the record, and note that Mr. Steel did make a mistrial motion at a sidebar, which is why we said there were three mistrial motions.
THE COURT: I think he said he was going to move for a mistrial. If the next question were asked, I think he said he's going to move for a mistrial.
MS. SMYSER: Three attempted mistrial motions, your Honor.
MS. SHAPIRO: Sorry. Just a couple more things, if I may.
I think it's very telling that Ms. Smyser has still not explained to the Court why this testimony was elicited even though the government had in its possession records demonstrating that Mr. Combs was on the East Coast from September 25 through September 29. That's the first point.
The second point with regard to Ms. Bongolan is you have to put this in the perspective, the fact that she had a strong motive to lie because of her civil lawsuit, and also to exaggerate the scope of her injuries at the alleged hands of Mr. Combs.
And then, in addition to that, with regard to the Court's comments about, oh, well, maybe this happened earlier, the fact of the matter is that if you buy the argument that the text message exchange between Ms. Ventura and Kristina Khorram, which occurred on September 30, occurred contemporaneously with the balcony incident, there's no way it could have occurred before September 26. So for those additional reasons and the other ones, we respectfully submit that a mistrial is in order, but at the very minimum, we would request a Napue instruction.
THE COURT: Any further response?
You don't have to, but --
MS. SMYSER: No, your Honor.
THE COURT: I suppose even putting the explanation to the side, how would it make sense for the defense or for the government to knowingly put on perjured testimony that would be readily undermined on cross-examination based on documents produced by the government to the defense? It just doesn't make -- does that make any sense to you in this context?
MS. SHAPIRO: Yes, it does, because they -- obviously, they might think they could slip one past the goalie. I mean, the idea that somehow because we did a really good job on cross, that that excuses the government, I don't agree with that, your Honor. I don't think that's fair.
THE COURT: Well, I think Ms. Smyser says that as a technical matter, given the elements that you have to prove, it does actually undermine any motion for a mistrial in this context because to the extent there was perjury, and the government says there wasn't perjury, it was revealed during the cross-examination. It was not something that only came up after the fact.
MS. SHAPIRO: Well, I understand that, your Honor, but under Napue, at a minimum, we're entitled to an instruction, so that's a sort of after-the-fact inquiry that might be appropriate if there were a conviction, and we were just talking about this for the first time on appeal, but we would submit that --
THE COURT: Understood. Can you please submit to the Court the proposed instruction that you would give, and I'll certainly take a look at it.
MS. SHAPIRO: We'd be happy to do that.
Briefly, two other quick points. We object to ask Juror No. 6 being stricken, and I understand the colloquy is under seal, so I don't want to explain further on the record now, but if the government is going to put in a letter, you know, we'd like the opportunity to be heard either in writing or tomorrow morning.
THE COURT: Everyone will be fully heard on this issue.
MS. SHAPIRO: The last thing just with regard to the ruling relating to Government Exhibits E-331-FR and HR, I just want to note -- I understand the Court's ruling. I just want to note I do think this issue of what the proof requires with regard to the fraud theory is going to come up again at Rule 29, and there will be issues we will raise about what can go to the jury. And in that regard I just want to just to preview in one sentence. I mean, the government says in its letter that, you know, it claims the defendant made unfulfilled promises of quality time in connection with hotel nights. And we're going to argue that that is just -- could not be a federal crime even if it was proven. So I just want to preview that. Obviously, there's nothing that needs to be done at this stage.
THE COURT: I'll certainly hear it. Every case brings up its own unique circumstances. But if, for example, in a human-trafficking situation someone promised immigrants that they would get them green cards if they would participate in a venture domestically, brings them in, and it's actually a brothel, but they say, you know, we'll get you green cards, and those are the unfulfilled promises that lead to the victims being subjected to sex trafficking, you would agree that's a viable crime, right?
MS. SHAPIRO: Absolutely, your Honor, and that's far afield from what we're talking about here. And what we're talking about here starts to border into vagueness concerns, notice concerns, all kinds of things of that nature because it's so far afield from that sex-trafficking theory.
THE COURT: Understood. I'll hear you obviously at the appropriate juncture.
One question just to put it on the top of your minds, the government says as to threats of force, fraud, or coercion, these are means and not standalone elements of a 1591 violation, and so they do not bear a unanimous jury finding because this they're just means under bedrock Supreme Court and Second Circuit precedent. You don't disagree with that.
MS. SHAPIRO: I need to take a closer look at the particular argument in their brief. Obviously, I got it late last night or this morning.
THE COURT: Understood.
MS. SHAPIRO: I think there are other issues in terms of, you know, the time sequence of what they're going to argue here and so forth, but I think that's all better left for the Rule 29.
THE COURT: Understood.
Anything from the government before we proceed?
MS. SLAVIK: No, your Honor.
THE COURT: So let's proceed. Let's have Jane back, if we could.
MS. GERAGOS: Your Honor, could we have a very brief sidebar? Very, very briefly.
THE COURT: Yes.
(At the sidebar)
(Page 5279 sealed)
(In open court; jury present)
THE COURT: Please be seated. Welcome back, members of the jury.
Jane, you understand you're still under oath?