P6CQcom1 - Corrected 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 12, 2025 8:50 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 P6CQcom1 - Corrected 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 P6CQcom1 - Corrected
(Trial continued; jury not present)
THE COURT: Good morning everyone. There are two evidentiary issues raised with respect to Jane's testimony. Let's address first the issue concerning Defense Exhibit 3226-A. I'm happy to hear from the defense, but I don't see any way in which the unredacted recording, those snippets that were identified in the email would not be, as the government puts it, rank hearsay given that they don't relate to the defendant's then existing state of mind, and the government indicates that it has not introduced the actual conversation in which the audio message is included and so would not be a completing statement and also would not be necessary to provide context to the actual discussion that happened at that time
MS. GERAGOS: Thank you, your Honor. The government on direct examination -- I didn't put this in my email to the Court yesterday so I understand what your Honor is asking. I know that your Honor has read what my argument was in the email yesterday, but I just would like to supplement it with this. In her direct testimony at pages 4835 to 4836, Ms. Comey asked her: "Q. Toward the end of your relationship with Sean, what if anything did Sean tell you or say to you about whether you had ever told him you wanted to stop these hotel nights?" She answers: "I just remember he said that, that I P6CQcom1 - Corrected never told him or that, like, he wasn't aware of how I was feeling. "Q. At the time he told you that toward the end of your relationship, did you believe him?" She says, "I did." "Q. Since then, have you reviewed some of your text messages with Sean from your relationship? "A. I have. "Q. What did you realize when you reviewed those text messages? "A. I realized that since 2021 that I have been saying the same things over and over again." So I had not initially marked this exhibit, but in the context of what the direct was of Jane with respect to this, I thought it was important to respond to the government's direct examination for the effect on Jane as the listener, and to have this exhibit in. And so that is our main thrust. I know we had argued state of mind. I understand your Honor doesn't see that it's a state of mind exception, but I think it is important for effect on the listener.
THE COURT: Right. It doesn't go to the then existing state of mind because it relates to a prior state of mind; namely, the defendant's previous state of mind that he was not aware that Jane felt the way that she did when they were having the conversation about the sexual encounters that they were P6CQcom1 - Corrected having. So putting that to the side, you say effective on the listener. I'm not understanding how this would bear on the -- how it would have any bearing there. The testimony that you just identified in the direct examination I think is consistent with what the defense is saying, which is that, yes, at the end of the relationship, which is when this audio message takes place, the defendant indicated to Jane that he had not previously understood that she felt that way, and on direct the government elicits that Jane believed him at that time, but then subsequently reviewed earlier text message exchanges and -- in which Jane indicates that she had previously said these things to the defendant. And so I'm not understanding how the audio recording that is consistent with what the government elicited on direct would be relevant or probative.
MS. GERAGOS: It's probative because for us it's -- they put it in on direct. They opened the door to this exact issue. And it's probative because it's important as to his state of mind - what did he believe at the time. That's the entire reason why we're here. He's charged with sex trafficking this individual.
THE COURT: When you say "at the time," you're saying on December 20?
MS. GERAGOS: December 20, 2023.
THE COURT: Right. But the government has no P6CQcom1 - Corrected objection to you putting in the portions of the audio message that bear on his then existing state of mind; meaning, there are portions of the audio message in which the defendant indicates "I did not -- I'm telling you right now, I didn't know this." There are other statements that I understand the government has no objection to you introducing and they suggested that you could redact the audio message so that those statements that fall within the 803(3) exception could be brought in. And so it's really just a question of a few isolated statements that don't go to the defendant's then existing state of mind but go to a previous state of mind. For instance, "I never understood through the three years that you felt this way." And so really it's just -- can you redact the message so that you can get in the statements that would bear on the state of mind as to December 20, 2023 and not have what the government characterizes as rank hearsay concerning the defendant's prior state of mind?
MS. GERAGOS: We can, your Honor, but what I would like to argue is that we do not have to because they opened the door to this exact type of questioning on cross during their direct. And so we believe that it's consistent with our theory, it's important context, and --
THE COURT: Well, due to the door opening so let's -- I think what I was saying was that they didn't really open any P6CQcom1 - Corrected door because the testimony that was elicited on direct is not inconsistent with the notion that the defendant indicated on December 20 that he had previously not understood that Jane felt this way about their sexual encounter. That is not a door-opening issue. Let me turn to the government. I take it that you have no objection to Ms. Geragos inquiring of the witness as to whether she was told by the defendant that he had not previously understood that their relationship had this dynamic, which would be consistent with what happened on direct. And if the witness said that she either didn't remember or that she denied it, then that would open a separate perhaps avenue to introduce the messages.
MS. COMEY: If I may clarify, your Honor. That piece of direct testimony that Ms. Geragos quoted from was with respect to the total end of the relationship in 2024, and so that's a different time period than what we're talking about here in December 2023, because in December 2023 Jane clearly did not believe the defendant. She pushed back aggressively and said, "I've been saying this over and over again." In December 2023, Jane was pretty clear in her mind that she had been communicating to Mr. Combs that she did not want to be doing this, and so that was not the time period that was elicited on direct.
The time period that was elicited on direct was the end of the relationship in 2024, at which point P6CQcom1 - Corrected there was not, as far as I know, a text conversation but an oral conversation toward the end of the relationship, and that is what I elicited, and I elicited it because there are prior notes and statements of Jane before she started reviewing her text messages where she said, "I never told him that I didn't want to do this. I never said anything." And I asked -- I remember asking her in an interview, like, who said that to you? And she said, "Well, Sean told me I never told him." Then we looked at her text messages, and she realized, oh, that's not true. That was why I elicited that conversation at the end. So I don't think that that has anything to do with a self-serving hearsay voice note that the defendant made in December of 2023.
And I would also note that we would have a 403 issue with that particular voice note coming in because I think the record at this point shows that in December of 2023, the defendant was certainly trying to create a record in anticipation of future litigation. We already heard two recordings that he made of Jane trying to feed her a false narrative during which he accuses her of recording him, apparently trying to throw her off the scent of him recording her. We have also seen him respond in December of 2023 to Jane's texts expressing her feelings about these nights by P6CQcom1 - Corrected saying "You're trying to set me up." So he was clearly in December of 2023 very cognizant of the record that was being created through his communications with Jane, so there's even less reason to believe that his statement on that audio recording was truthful, and it is even higher risk of confusing the jury and misleading the jury if that statement were to be introduced.
THE COURT: All right. What about the initial inquiry as to whether Ms. Geragos can inquire of Jane as to what conversations they had without introducing the audio message with these excerpts into evidence?
MS. COMEY: So, your Honor, I think that it raises a similar concern if it's focused on the voice note. If what Ms. Geragos is trying to elicit is: Did he tell you in a voice note or in a text message this, I would be concerned that that is a back door in to getting this hearsay in.
THE COURT: I think it would be -- in December 20, you know, around that timeframe December 2023, you had conversations with Mr. Combs where you indicated your view that the relationship had this dimension.
MS. COMEY: Mmm-hmm.
THE COURT: And at that time, he told you that he never understood that that was what he thought. Isn't that fair? And what was your reaction to that? She could ask that line of questioning, I'm just P6CQcom1 - Corrected asking you.
MS. COMEY: I don't think she could, your Honor, because -- so I think in that situation, you are less likely to have the 403 problem that I just identified because it's less likely to be creating a record, though I do think there is reason to believe from the record we have that Mr. Combs was trying to feed Jane a narrative throughout their relationship. But it is also just an attempt to get in the defendant's statement about his state of mind over a three-year period without subjecting him to cross-examination. It is attempting to get in his own statement that is hearsay asserted for the truth of the matter, which is that he did not know for three years, that would be the purpose of eliciting that. And I think the hearsay rule just precludes the defense from putting in a self-serving statement by the defendant asserting what was in his mind for a full three-year period. If he wants to take the stand and say that and subject himself to cross-examination, that's a different thing.
THE COURT: Understood. But wouldn't it be relevant to -- I think it's -- if that's the predicate question and then the followup question is: In response to Mr. Combs telling you this, did you then say to Mr. Combs, "No, I've felt this way the entire time" or "No, I did tell you all these things for three years," because that would go to what the defense has been doing for the last couple of days, which is to show text P6CQcom1 - Corrected messages over the course of the relationship in which the witness indicated to Mr. Combs that she had fun during these nights, et cetera. And so it would be to further bolster that kind of testimony. So it would be relevant in that respect. It would probably overcome a 403 objection, and the purpose of eliciting that testimony, right, without putting the voice note in would not be for the statement and for the truth of the matter. The it would just be to like set up the predicate -- the next questions, which is like: What did you say in response? What did you do in response?
MS. COMEY: Well, your Honor, I think we know what she did in response from the text messages in December. In December of 2023, she is repeatedly saying, "No, this happened," and, "No, I told you I didn't want to do this." And so I don't think that they will get a probative answer in response to that kind of question. I think that the only probative value for the defense in asking that question is to find a back door in to having the jury hear that the defendant said in December of 2023 "I did not know this for three years." And that's a bell that can't be unrung, and the jury will hear that, and where it will land in their minds is that it's being offered for the truth. The jury is not going to hear that and think, oh, I'm hearing this to understand how Jane responded.
THE COURT: I understand, and I agree with the P6CQcom1 - Corrected government's position on introduction of these particular statements contained in the voice note. And so the objection is sustained as to those portions of the note for the reasons the government has indicated and as we've discussed. However, Ms. Geragos, I think it would be -- if you wanted to inquire along the lines that we've discussed as to the nature of discussions that took place in December 2023, I think that that would be fair because there would be a non-hearsay purpose for saying "Did he tell you this?" And then your response, "What did you say back? You didn't say X, Y, Z." Questions along those lines I think would properly bear on the issues that are raised. And then if, depending on the questioning, at some point you believe that there is an evidentiary basis to put in this voice message, you can call for a sidebar, and we can address it at that time.
MS. GERAGOS: Thank you, your Honor. I understand the Court's ruling, and I will abide by it. Thank you.
THE COURT: Now, the remaining issue concerns E-331-K through P. The government seeks to introduce six exhibits on redirect that they did not seek to admit on Jane's direct examination. These exhibits from November 2023 to March 2024 reflect Jane's entries in a Notes application in a time after Ms. Ventura's lawsuit became public, essentially they are Jane's diary. As Jane explained, to collect her thoughts and prepare to tell Mr. Combs how she felt, she would often go into P6CQcom1 - Corrected her Notes app on her phone and write her thoughts and her feelings. That's from the transcript at page 4835. These entries, in particular, reflect Jane's thoughts about Ms. Ventura's lawsuit and the allegations therein and how the allegations relate to Jane's own situation. It also reflects Jane's pain and trauma concerning her relationship with can combs in the months following the lawsuit filing.
The government previously did not seek to admit these diary entries after a colloquy with the court And with the defense because the government understood that the defense's attack on Jane's credibility was that she had altered her view of Combs' behavior after Ms. Ventura's lawsuit. So the entries from the period after Jane reviewed that lawsuit would not be admissible as prior consistent statements. As the government explained before Jane took the stand, the only motive to lie that the defense was proffering pertained to Ms. Ventura's lawsuit, so that was the cutoff for the government to offer prior consistent statements. Anything predating the lawsuit would rebut any allegation that Jane changed, fabricated, or exaggerated her story but anything after would not be admissible. This is from the transcript at pages 5660 through -61.
Now the government says that the defense has opened the door to the admission of the post Ventura lawsuit exhibits based on cross-examination at pages 5285 through -86. P6CQcom1 - Corrected Essentially the defense on cross-examination inquired as to the grand jury proceeding and whether the government gave Jane immunity and what her understanding of that grant of immunity was. And then they asked the final questions, which are: "Q. Is it your understanding that they can't prosecute you for federal crimes if they determine you tell the truth? "A. Yes. "Q. You didn't want the government to prosecute you, right? "A. Yes." So the government's argument goes like this: In the cross exam, the defense impliedly attacked Jane's credibility not based solely on Ms. Ventura's lawsuit, but in addition on the later immunity she was granted in 2024 in the grand jury investigation. The exhibits are prior consistent statements as to that charge is the government's argument.
As a technical matter, that would seem to fall within the parameters of Rule of Evidence 801(d)(1)(B). Now, the defense in their letter points to a few cases, and what they say is that it's not the -- the inquiry is not focused on the motive to fabricate. The inquiry is focused on a motive to fabricate. So once there is a motive to fabricate, a statement can't be brought in as a prior consistent statement. Now, most of the cases the defense cites are not really on point. However, in United States v. Forrester, 60 F.3d 52 (2d Cir. 1995), the court there said: "A statement P6CQcom1 - Corrected made after an improper motive exists is not within the scope of Federal Rule of Evidence 801(d)(1)(B)." Now, that's the statement in the case. This particular fact pattern does not appear to have previously arisen.
Where there are two motives to fabricate, one comes at time one, one comes at time two, and the question is whether statements that fall between those two times would be admissible as prior consistent statements. But to the extent that there's any question -- and then defense's arguments goes both to 801 and also Rule 403. So their point is that it would be improper, no matter how you look at it, to put in these statements that postdate the lawsuit because at that time the defense would argue there is already at least one motive to fabricate or skew testimony, and so putting in those statements would be either unfairly prejudicial or they would fall outside Rule 801(d)(1)(B) properly understood. The Court is convinced by that argument, especially under the circumstances here, during the direct examination in pages 5071 through 5149, the government went through Jane's text messages with both Mr. Combs and Ms. Khorram in detail.
In those text messages, and consistent with Jane's testimony concerning how she utilized the notes, Jane told Mr. Combs and Ms. Khorram many of the things that are contained within these notes. P6CQcom1 - Corrected In fact, it's unclear, having reviewed the notes and having reviewed the testimony, which parts of which of these exhibits the government believes are necessary to rebut any implied charge of fabrication that may have arisen from the portion of the cross-examination that the Court pointed to because it's already in the record that post Ms. Ventura's lawsuit, Jane told Mr. Combs and Ms. Khorram that she believed the hotel nights were sexual exploitation; that she was gaslit and manipulated; that she was treated like a sex worker; that she was drugged, and the testimony goes on and on for a number of pages. So to the extent that there was any implied charge of fabrication, it has already been rebutted by the testimony that was elicited in direct and through the text messages.
So it's unclear which part of these exhibits is necessary to rebut any implied charge of fabrication. And as the Court indicated there's further reason for caution here because the defense -- because of the defense's argument that during this time period they will submit that there was already a prior improper motive or influence to fabricate or skew testimony; namely, Ms. Ventura's lawsuit. Now let's stop for a moment. That means at this particular time there is no basis that I can see on a door-opening argument for the introduction of these particular exhibits. I'll certainly hear from the government so that you P6CQcom1 - Corrected can tell me anything I got wrong, okay, as to these particular exhibits. That does not mean that based on the remaining cross-examination the door might be further opened or that circumstances might change.
And here is what I mean by that: We have not gotten to the cross-examination as it pertains to these statements because we only got to the pre-Ventura lawsuit portion of the cross-examination. So, Ms. Geragos, you understand that if you were to go over these text messages that I'm referring to, and if your argument is that she wasn't telling the truth or somehow these weren't her real thoughts because they were interspersed with messages of love and affection and displays of -- you know, indications that really she was a willing participant in all of these events, then at that time the government could say, well, let me show you the notes that really show that Jane had these true views, views that she did not believe that she could express to Mr. Combs because of the reasons Jane has said: That every time she would try to tell Mr. Combs these things, he would cut her off, he would shut her down, he would put her down, he would make threats; all those things Jane has previously said. At that point I think the door would be open for the government to say these statements would be relevant to come in, and I think that there would be a closer question as to whether they would be properly admissible, and one that we P6CQcom1 - Corrected could address after the cross-examination has concluded.
MS. GERAGOS: I understand, your Honor.
THE COURT: Ms. Comey.
MS. COMEY: Thank you, your Honor. I understand your Honor's ruling on 801(b)(1)(B)(i), but that is the only subsection that any of the cases the defense cites refers to. Forrester itself was in 1995, which was before (ii) was introduced. And (ii) allows the introduction of a prior consistent statement to rehabilitate the declarant's credibility as a witness when attacked on another ground. I don't think anyone could conceivably suggest that the defense has not attacked Jane up and down in this courtroom about her testimony that she felt coerced and felt forced and did not want to participate in hotel nights. Ms. Geragos spent many hours going through text message after text message with expressions of love and enthusiasm and apparent affection for different entertainers and apparent excitement or willingness to participate in hotel nights, and Ms.
Geragos' questioning made very clear that she was seeking to point out or suggest that Jane in fact enjoyed hotel nights, wanted to participate in hotel nights, did not feel forced and made a free adult choice, just like Ms. Geragos previewed for the jury that she expected the cross-examination would show. And so I think on that ground, at the very least, P6CQcom1 - Corrected there is one line from Government Exhibit E 331-M, which is a note from December 1, 2023 that should be admitted under (ii), and that is the sentence: "The one thing I will say is, yes, I did feel forced and taken advantage of, manipulated, deceived heartbroken, and felt too close to the edge of depression. I hit a very dark point in me life. I felt obligated 98 percent of the time." That is with a very, very short subset of the very lengthy notes that we still think should be admitted, but we understand your Honor's ruling. There should not be a 403 are issue with admitting that very short subsection because it is a very targeted statement, and it specifically rebuts the lengthy cross-examination that Ms. Geragos has engaged in to suggest that Jane did not feel obligated and was freely exercising her own free will when she participated in these hotel nights, and that she enjoyed them and liked them. So we would ask at the very least we be prepared to put in that particular portion of E-331-M.
MR. DRISCOLL: Your Honor, could I just be heard on that basis?
THE COURT: Yes.
MR. DRISCOLL: That argument is an incorrect reading of the rule. (ii) was an amendment to the Rule. And the Rule's Advisory Committee Notes specifically state that amendment retains the requirement set forth in Tome. And the statement that Ms. Comey just cited is from Exhibit 331-M, P6CQcom1 - Corrected which was written on December 1, 2023. That's just shortly after Ms. Ventura's lawsuit during the relevant period that our letter discusses when an improper motive to fabricate has already been introduced. So it's clearly not admissible as a prior consistent statement.
MS. COMEY: Your Honor, I'm looking at the Advisory Notes now, and I don't see what Mr. Driscoll is referring to.
MR. DRISCOLL: These are the notes of the 2014 Amendments.
THE COURT: Ms. Comey, I guess the question is -- I think the defense's argument is that (ii) was added to address situations where there is not a charge of recent fabrication or improper influence or motive but there is some other basis to introduce the statements, and there are two examples given in the Advisory Committee Note. So I think what they're saying is -- that's not this case because where there is a recent motive, then that is how you analyze the rule because, otherwise, right, it would just -- there would be no purpose to (i). It would just be (ii); meaning, the rule would just say: You can bring in a consistent statement anytime the declarant's credibility has been attacked on any ground, which is not what it says.
MS. COMEY: I would want to take a closer look at the Advisory Notes, your Honor, but I know how delayed we are. If I may, I do think that this one sentence that I just read out P6CQcom1 - Corrected loud should also be -- I don't want to push your Honor on the ruling if your Honor is not --
THE COURT: Feel free to push.
MS. COMEY: The only purpose of Ms. Geragos' cross-examination about the immunity was to suggest that she was somehow afraid of going to jail or going to prison as of November of 2024 or being prosecuted as of November 2024, and the only possible relevance of that cross-examination was to suggest that she had an incentive to change her testimony in some way, to alter her testimony in some way, and in particular to alter her testimony to provide an account that was different from or inconsistent with, according to Ms. Geragos, the text messages that Ms. Geragos walked Jane through throughout her cross-examination. And I understand that the view is --
THE COURT: Here is my -- as to that point, I mean, understand the government's position, but this is just from the very beginning of the transcript pages I pointed to. This is in the record. This came in without any objection. "I just woke up because I'm nauseous. I've been crying for three days and under stress from reading all of this. I keep having nightmares about forced nights and all the times I felt like I couldn't say no. I feel like I'm reading my own sexual trauma. It makes me sick how three pages word for word is exactly my experience and my anguish, even two of my own birthdays and had me perform so many countless" - there's an error in P6CQcom1 - Corrected transcription -- "national toxic years together, even recently throwing up at a hotel in LA," and goes on and on. So what does this add? Given that it raises questions as to whether technically speaking it would be admissible --
MS. COMEY: Yes, your Honor.
THE COURT: -- given that there are literally 40 pages worth of testimony of text messages the government put in during this time period that are absolutely consistent with its position that there could not be any plausible claim that there was some influence by the government connected to the immunity or grand jury process.
MS. COMEY: Yes, your Honor. The piece of this sentence that I am pushing for is: "I did feel forced and taken advantage of, and I felt obligated 98 percent of the time." That covers the broader time period of the relationship in a way that the text messages that are in do not. And what Ms. Geragos has done through her cross-examination is go month by month suggesting that there were many, many times throughout the relationship where Jane did not feel obligated, and this specifically rebuts that.
MR. DRISCOLL: Your Honor, this type of backward-looking statement referring to a year's long period is exactly the type of backward-looking statement that the hearsay rules do not permit. That's why it's not probative, particularly after the witness has been made aware of a lawsuit P6CQcom1 - Corrected in which somebody received a very large settlement. So it can't be admitted as prior consistent statement. And before your Honor conducts any Rule 403 balancing, you first have to determine what the probative worth of the statement is and whether it's even admissible. So for all those reasons, it should just be excluded. And I think Ms. Shapiro has something to add, if I can just pass it off to her.
THE COURT: All right.
MS. SHAPIRO: Your Honor, I just wanted to put this in a broader context, as the testimony your Honor pointed out demonstrates, or I guess that was from another note. There has been hours and hours of testimony about --
THE COURT: The testimony I read was from -- that's in the record.
MS. SHAPIRO: Right. Right. And what I'm getting to is the 403 issue, which is that there's been hours and hours of testimony about how Jane felt, and that's fine, it's relevant, but the ultimate issue here is what was in Mr. Combs' head and what he understood based on what Jane communicated to him. And I just want to highlight for the Court that allowing more of this, even apart from the hearsay issue, is just completely cumulative, unnecessary, and unfairly prejudicial because it's detracting the jury from the issue of what Jane in fact communicated to Mr. Combs, and that's the issue for Mr. -- for P6CQcom1 - Corrected the jury, is what was in his head, how -- what was communicated to him, was it reasonable for him to interpret it in the way that he did as to her consenting to these hotel nights. And I think that more of this is just piling on to an issue that's distracting from the ultimate issue in the case, and given how much evidence has already been put in by the government and has already been testified to by Jane and in some of the later text messages, this is just completely unnecessary, cumulative, and misleading.
THE COURT: Right. Understood. Just one last thing I know that we're running late, and that's my fault. But, Ms. Comey, on the small excerpt from Exhibit M--
MS. COMEY: Yes, your Honor.
THE COURT: -- how do you get that into evidence given what we previously discussed about the prior consistent statement rule; meaning, that it's a statement from after Ms. Ventura's lawsuit, so Mr. Driscoll says, look, you can make it one sentence but it still doesn't overcome that ground. So is there some other basis to get that hearsay statement into evidence?
MS. COMEY: Your Honor, I don't think it comes in for her state of mind, because for the same reason I asked to keep out Mr. Combs's state of mind. I don't think it comes in for her state of mind. My argument is that it is a smaller response to the smaller impeachment point that Ms. Geragos made, suggesting that Jane had a motive or an incentive, upon receiving immunity in November of 2024, to shave her testimony, to suggest that she felt forced or obligated, when she didn't, because it would make the prosecutors, who held her fate in their hands, happier; that it would help the prosecutors' case. And so I understand, as a 403 matter, that letting in five-some multi-page notes may go too far, but this one sentence that is narrowly targeted to a specific argument that has been raised for hours on cross-examination, I think, is appropriate under 403. It is not cumulative, because the statement "I felt obligated" 98 percent of the time is not something that we see in other text messages. That is something that she wrote in other text messages. That is something we can only get in through this note. And so it is, I think, extremely probative. It is not cumulative. It is not unduly prejudicial. I think it is narrowly targeted at --
THE COURT: I hear you on Rule 403. My question was, mechanically, how do you get that in, given what we've discussed about 801(d)(1)(D)?
MS. COMEY: I think that I would need to convince your Honor of the prior consistent statement rule and find that, in fact, the defense has suggested there was a new incentive and that we should be able to rebut the argument that there was that new incentive. And I think that it's telling and important that this note was in her own private Notes app. This is not something that she was sending to a friend. This is not something that she appeared to be documenting thinking how am I going to collect evidence for a case or put together a civil suit. This was her writing essentially a diary. There is no reason to think that she was doing this in anticipation of litigation or anticipation of a criminal investigation. And I think it is palpable to be able to point out that she said this before she ever met a single prosecutor or a single federal agent.
THE COURT: All right. I'm going to reserve on this small issue of that one sentence, and we'll see where the cross-examination goes and we can pick it up right after. With that, apologies again for the delay. Let's bring the witness in. Ms. Geragos, did you have something before we do that?
MS. GERAGOS: I want to confer with Ms. Comey for a moment.
MS. COMEY: Your Honor, we had flagged an issue for your Honor's deputy before we bring Jane back out. I don't know if you had the opportunity --
THE COURT: I think it's reflected on this Post-it. OK. Let's have a brief discussion in the robing room. So let's have Jane's counsel and lead counsel for each side and the court reporter.
MS. GERAGOS: Your Honor, may I come as well, please?
THE COURT: Yes, you may.
MS. GERAGOS: Thank you.
THE COURT: Yeah, of course.
(Pages 5698-5727 SEALED)
(Pages 5728-5729 sealed)
(In open court; jury not present)
THE COURT: Ms. Geragos, are we ready to proceed or do we need a few minutes?
MR. AGNIFILO: Can I be heard and make a record? I think Ms. Geragos needs a few minutes to incorporate what we talked about in the back. Can I use that time to make a quick record?
THE COURT: Maybe. On what issue?
MR. AGNIFILO: So we had this discussion in the back. Mr. Combs was not present, and so I think I would like to lodge our objection. I'm not going to get into any of the details, of course, but so that my client can hear it and so that I've made the objection and that it is clear from the record, and it will take no more than two minutes. There is one point I think we didn't bring up as clearly as we could have, and we brought this point up in our litigation over pseudonyms for the other witness.
THE COURT: Well, hold on.
MR. AGNIFILO: Yes, Judge.
THE COURT: I mean, if you want -- let's take a step back. If your client wishes to be heard on a particular issue or wishes to express some points related to the issue that we addressed in the back, then we can do that. We can clear this courtroom if we need to, to address that so that I want to make sure you understand that I don't want anyone to think that in any way, shape or form the defendant was excluded from a discussion on this issue if that's what you're requesting. So we can do that if you want to. That's not what I'm understanding you're asking for.
MR. AGNIFILO: We do not need to clear the courtroom. I will conform my remarks to the point we do not have to clear the courtroom, and that's not what we're asking.
THE COURT: Okay. Proceed.
MR. AGNIFILO: Thank you. So the event that we are talking about in January 2024 took place behind closed doors in a hotel room, but there were many people -- there were other people there. One of the concerns that we have — and this is a concern of constitutional dimension, we believe — is part of the reason a trial is -- I sound like I'm being rhetorical, but I'm making this point for a reason. Part of the reason that trials are fully public is so if other people realize they know something about an event that's discussed in a public courtroom, they could come forward and they could share whatever their recollection is about it. Now, that typically doesn't happen, but it does happen from time to time. And I know that was one of our objections when we objected to the witness who went under the name Mia, you know, that there's going to be other people who might have information about this. And it's the same with the event in the hotel room.
And I think that is kind of the practical side of the constitutional right to a public trial; that it's public for a reason, and the facts are public for a reason, and the names are public for a reason. And that reason is so the public can do what the public does in all issues of importance, which is receive them, and if someone has something to add, that person can come forward and add whatever it is that person has to add. I am very aware of the balancing that your Honor is undertaking on both sides of the ledger. And I've listened to the Court very closely, and I appreciate the balancing. But we still maintain that the constitutional right to a fully public trial, now understanding we have consented to the pseudonymity of this witness, what we didn't consent to, and we don't, most respectfully, is that these events which play important parts in the background of some of the most critical events in the trial, should be in any way not fully public.
And so the reason the names are important, and the reason the names are important publicly is in addition to the reasons that we raised for your Honor that I don't want the jury to think that this evidence is somehow different than other evidence in the case. And we've discussed that in the back, and I understand the Court's reasons for that. But something that I don't think we made as clear, at least in terms of the most recent application, which I think we had made clear in the past, is part of the public nature of these trials is for the information to reach the public so that other witnesses could come forward, other accounts could come forward. And so we didn't make that as clear as perhaps we could have. So I wanted to add that to the record that we've made. And also to say that I wanted to discuss this also with the Court in the presence of my client because it's an important issue, it's a constitutional issue, and so I didn't want to have all the discussion out of his presence, so I wanted to discuss it with the Court here in open court. And thank you for that opportunity.
THE COURT: All right. Understood. Anything further, Ms. Comey, if you have anything?
MS. COMEY: As long as your Honor's ruling remains no. Otherwise, I would want to respond, but I don't think there's a reason to change your Honor's ruling.
THE COURT: I don't intend to change my ruling, but what's the government's response as to the issue that Mr. Agnifilo raised, which is that the other component is for the public revelation of certain details is so that it might aid in some kind of investigation of the facts based on that public revelation.
MS. COMEY: Enough information has been revealed to the public that anyone who witnessed these events would be able to tell the defense if they wanted to. The defense made a similar argument about Mia, and, as we know, the defense in fact received exhibits from the public that they then used during Mia's cross-examination. The suggestion they need to say these names in order to get some sort of information from the public appears to be nothing more than a pretense to attempt to harass and intimidate this witness, and the Court should not countenance it.
THE COURT: And I take it as to the specific issue that we are discussing, the actual event in question and the identities involved is not actually one of the alleged acts of sex trafficking underlying the indicted charges.
MS. COMEY: Yes.
THE COURT: It is a collateral issue, and so the idea that somehow public revelation of the details that we discussed would in any way, shape -- in any way would result in some kind of investigation that would bear on the actual charges raised is not a real concern.
MS. COMEY: That is correct, your Honor. And I will also note that the identity of the people who were on that particular event is not a defense to any of the conduct that Jane testified the defendant engaged in on June 18 and 19 of 2024. So it is extreme -- its probative value is extremely minimal and has nothing to do, from our perspective certainly, with the defendant's guilt or innocence of the sex trafficking charges.
THE COURT: All right. Now, anything further from the government before we finally get started close to 11:00 a.m.?
MS. COMEY: No, your Honor.
MR. DONALDSON: May I have one second, please.
THE COURT: Yes, Mr. Donaldson.
MS. GERAGOS: Your Honor, I'm almost ready. I just need to double check my outline one more time to make sure there is no issue. I need 30 more seconds.
THE COURT: Take your time. I've been responsible for most of the time that we've lost here this morning.
(Pause)
MR. DONALDSON: Thank you.
MS. GERAGOS: I have made all the changes I needed to make, and I am ready to proceed when the Court is ready to proceed.