P6dWcom1- 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 13, 2025 8:30 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 P6dWcom1- 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 P6dWcom1- Corrected
(Trial resumed)
THE COURT: Good morning, everyone. Please be seated. Let me ask the government, in terms of the exhibit objections, if Ms. Sankar is testifying on Monday, does it make the most sense to run through those after the jury has gone home? The reason why I say that is because there's a number of exhibit objections, and while the defense kind of puts a category around a bunch of hearsay objections and says, well, given your Honor's view of this rule, we preserve our objection, but we're not going to address any specific one, that's not how you preserve an objection. If you have an objection, then raise it as to the exhibits. I'm happy to walk through all of them, but given that that might take some time, it seems like we might do that at the end of the day as opposed to the beginning of the day, but I wanted to make sure that that did not impair the presentation of any witness.
MS. FOSTER: That's fine, from the government's point of view.
THE COURT: All right. The one issue that was raised with respect to Special Agent LaMon had to do with a certain line of cross-examination, right?
MS. FOSTER: That's correct. P6dWcom1- Corrected
THE COURT: Let me hear from the defense as to the basis and the relevance of the line of testimony that that was indicated in the government's letter, which is the nature of the search as opposed to what the fruits of the search were.
MR. AGNIFILO: Thank you. I think what's important, I'm imagining that the government is going to say something along the lines of that the house was cleared and made safe for the search, and that happens a certain way. And we have to be, I think, full and complete and accurate about the way it happens. I don't intend to say that anyone did anything wrong. I don't intend to say that anyone did anything illegal. I don't intend to use words like "unnecessary force," or things like that. It's a brief factual series of questions, and the questions that I think are appropriate questions is that when they got there, they knew Mr. Combs was not there. They found that two of his sons were there, and they had long guns pointed at the sons, and they brought the sons, with long guns pointed at them, to a place where they were out of the way of the search. It's also, I think, very relevant that they were handcuffed and that other people were handcuffed. And the reason that's important is because if it turns out that the search -- there were certain things in the search that were hastily done or not properly documented, the searching agents P6dWcom1- Corrected had all the time in the world to do whatever search they wanted to do, because the inhabitants of the house were either removed from the house at gunpoint or were handcuffed. And so I think that is important. It's probably all of three minutes of cross, but in terms of how the location was cleared, it was cleared a certain way, and it was cleared with the use of guns and handcuffs, and I think that's important to point out in an appropriate, nonaccusatory way. And that's my application.
THE COURT: All right. Now, on both sides, the parties have, at various points, indicated that certain lines of testimony or certain exhibits are admissible because they are limited in nature; exhibits are redacted and so the Court should overlook certain limitations on hearsay, or questions may take only a minute or two, and so for that reason, there's no harm, no foul. And that's just not what the law is. As both sides know, even if a question takes ten seconds, it can be unfairly prejudicial to the other side. Cases are won and lost on the basis of single questions and single answers, and so that's not a good reason. Now, I understand that to the extent the defense claims that certain evidence is suspect because of the nature of the collection of the items, that it might be relevant that there was no time pressure in terms of acquiring that evidence. And I understand, Mr. Agnifilo, that that's what you're saying. P6dWcom1- Corrected
MR. AGNIFILO: That is part of what I'm saying, yes.
THE COURT: Well, that's the only proffer of relevance that I've heard. So that is what you are saying. In that respect, I don't understand why it would be relevant at all to go into the fact that people were held at gunpoint or were handcuffed. The only relevant thing is that there was no one there. Now, to the extent that the government, where you started, opens the door by talking about the nature of the search in that way, then of course, you'd be able to inquire on those grounds. And this happened before. There was a prior witness who testified and talked affirmatively about the 80 or 90 agents that came onto the scene and the fact that the doors had been moved in created this atmosphere of a military-style encroachment into the premises, and so I permitted the defense to respond by cross-examining that witness on those areas. But if the government does not go there with this witness and simply talks about the items that were recovered, then the door would not be opened to similar cross-examination concerning, for instance, the fact that people were held at gunpoint or handcuffed or anything of those lines. Do you have a further proffer of relevance as to that particular testimony?
MR. AGNIFILO: I do. I do, your Honor. P6dWcom1- Corrected I think the nature of, the way that the premises were secured is important for a number of reasons. One, they used, the agents moved swiftly. The agents got people from one place to another swiftly and decisively, meaning that there's no indication that things were changed in location, that things were destroyed, things like that. And I think that's important.
THE COURT: That's fine. I don't think the government has an objection to that.
MR. AGNIFILO: But the way it was done -- I don't think we should be unable to explain how it was done. Now, I understand that your Honor would not let me -- and I wouldn't ask to, and my point -- and maybe I led with the wrong thing. I'm not saying this is relevant because it's short testimony. I'm saying it's relevant because the way that this house became secured is important to know, and the fact that the agents had numbers, that the agents were moving quickly and forcefully -- the force part is relevant because there's no opportunity, and there's not going to be any testimony, that anyone could have moved things around or hid phones or hid baby oil or whatever things that this agent's going to talk about that he found in the location. And the fact that, how the agent did it and that they, A, got to the location quickly, moved people out quickly and then had all the time in the world not just because people P6dWcom1- Corrected weren't around but because they knew that the people who lived in the house were handcuffed, that's not irrelevant. That the agents have all the time in the world --
THE COURT: Nobody's saying that that -- well, the government may say that that's irrelevant. But I'm not understanding that that's what they're objecting to. Let me just make sure I understand the nature of the objection. Just to be very precise about it, I understood the objection to be the defense should not be able to elicit testimony about any force used against whoever was in the house. However, the defense, if they wanted to, could confirm that it was a secure location, that there was no time pressure, that they had made sure to do all those things. Is that fair, or is it a larger objection?
MS. FOSTER: That is correct. My understanding is that no one, by the time the search team was there, the people in the property had been cleared from the premises. If they want to ask that question, was there any time pressure based on people, residents being in the location, that's fine. The issue is just them mentioning handcuffs or being pointed -- having firearms pointed at them.
THE COURT: OK. The government's application is granted. The only relevance as to the particular means used to make sure that the premises are secure would be to unfairly P6dWcom1- Corrected prejudice the jury and to suggest that they should make their determination of the issues in this case based on things that have nothing to do with the actual issues that the jury is set to decide. And I've asked the defense for a proffer of relevance. To the extent that a proffer has been made, the government has indicated that it has no objection to questions along the lines of what Mr. Agnifilo has indicated, meaning that it was a secure premises; they had time to catalog anything they needed to and that there was no opportunity for any kind of hiding of things of that kind, because they had secured the premises and had moved swiftly, as Mr. Agnifilo had put it. The only thing the government objects to is questioning on the means by which they did that, and the means have nothing to do with the issues in this case but are unfairly prejudicial, and substantially so, given the nature of what the defense was hoping to go into on cross-examination. So the government's application is granted. Now let's move to the issue of the juror.
MS. FOSTER: Your Honor, just one -- I just want to, based on what Mr. Agnifilo said, I want to make sure that I don't open the door with certain questions. One of the photographs that Special Agent LaMon will, that will be shown to the jury and that he'll speak about is a photo of a number of firearms that are laid out in the security P6dWcom1- Corrected office. Without the context that the property was cleared and that one of the steps in clearing the property would be to remove the firearms if they were in plain view from a specific location and make them secure, basically take out the magazine from the firearm, the photo actually sort of gives the impression and, I think, gives the false impression, in a negative light for Mr. Combs that sort of firearms were all, like, laid out in the security room. And so we just wanted to briefly get into the nature of the fact -- I was planning to ask Special Agent LaMon, do you know if the firearms were laid out that way prior to law enforcement entering the property? And his answer would just be I do not know because a specialized team would have entered the property prior to the search team getting on the property and made any firearms secure and that one of the steps would be to remove any magazine from the firearm.
THE COURT: If his answer starts out with I don't know, then why wouldn't there be an objection and a motion to strike the answer, if he doesn't know? If he doesn't know something, he doesn't know it.
MS. FOSTER: I think my only thought of that is just to try to correct any misimpression that this is sort of how Mr. Combs sort of laid out his firearms. So if there's some way to do that --
THE COURT: Why don't you just ask him if it's his P6dWcom1- Corrected understanding that the agents laid out the weapons in this way after they commenced their search?
MS. FOSTER: I think that he actually can't really answer that because he wasn't there when they cleared the property, so he doesn't actually know whether or not they actually were or that they were not laid out.
THE COURT: Then why is he testifying? Why isn't someone testifying who actually has personal knowledge of what happened? If you want to get into that, is what I'm saying.
MS. FOSTER: So, the only purpose, one of the key reasons we're having him testify is that he knows that these firearms were found in the premises, and that's all we are asking him to testify to. I just don't want to -- and maybe this is not an issue and maybe defense doesn't have an issue with this. I don't want to leave the jury with this sort of misimpression that when the law enforcement got to the property, that Mr. Combs just had a bunch of firearms laid out in his security room. And so I am happy to figure out what the Court finds appropriate or Mr. Agnifilo finds appropriate. Maybe that's just not an issue that they're concerned with, but that is my only concern, is just not leaving the jury with some sort of misimpression.
THE COURT: Mr. Agnifilo, I'm sure that you would like the government to clarify that Mr. Combs did not have these firearms just laid out in his house. P6dWcom1- Corrected
MR. AGNIFILO: I want a lot better than that. I want to know exactly where they were when the agents came. And I'm hearing this for the first time, that this agent has no idea what the state of -- to your Honor's left are a bunch of long guns and a bunch of firearms. And if the only things that this jury is going to hear is that they were spread out somewhere in the house and this witness is going to say I have no idea where they were beforehand, I don't think this witness should testify. I think we should get a witness who is going to say this gun was in a gun safe. I got into the gun safe and took the gun out of the gun safe that was in the security room. Or this long gun was in the security room; it was in a place you'd expect a long gun to be in a security room. My understanding is every single one of these guns were recovered from a locked security room in the premises, and I think it has to be crystal clear how these guns were when the agents came. And if this agent's going to say I don't know, I think this agent's testimony is irrelevant and prejudicial, and he should not testify. They should get the agent who came there, and if there's a gun that was taken from a safe or from somewhere in the security room, the jury should know that testimony and that evidence, not this witness that's downstream, who's going to say I don't know where it came from. By the time I got there, the safe in the security room was P6dWcom1- Corrected open. By the time I got there, these magazines were removed from the guns and the guns were placed in different places, I don't even know who did it. I think that's irrelevant and deeply prejudicial, and we object to this witness's testimony.
THE COURT: Ms. Foster.
MS. FOSTER: Your Honor, this witness, what he will testify about is that it is standard practice for a team to enter the property prior to the search team to secure the property, and one of the ways that they secure the property is to make sure that any active firearms have their magazine removed so that they're not a threat to any of the law enforcement officers at that property. He, though, will testify that the firearms were found in the security room. And so this is --
THE COURT: Maybe you can help me out with this, and this might just be me missing something. Special Agent LaMon is not testifying as an expert witness, right? He's testifying as a fact witness in this case?
MS. FOSTER: That's correct.
THE COURT: OK. So how can he testify as to things that he doesn't have personal knowledge about, meaning he was on the scene during the search. Is that fair?
MS. FOSTER: That's correct. So, your Honor, he will -- so he knows -- he was part P6dWcom1- Corrected of the team lead. He planned the search, so he knows that there was a plan by which a prior team was supposed to go into the property and secure the property. So he has personal knowledge that every single one of these firearms when he was at the locations conducting the search was in the security room. And personally, I am a bit surprised about the defense's objections to this because we are just going to be eliciting that the firearms were found in a security room and that he does not know whether they were in a safe or they were not. And so we are not creating any sort of misimpression about this or saying the firearms were found in Mr. Combs's bedroom, anything like that. It's just that when he was at the premises, the firearms were found in the security room. If they want to cross-examine him about whether or not he knows whether SRT would have moved possibly the security, the team that secured the property potentially found them in his bedroom or in a closet, they can do that. But there's nothing prejudicial.
THE COURT: It's not about prejudice. This is what's going to happen. All right? Special Agent LaMon is going to take the stand. Mr. Agnifilo will not be sitting down during the direct examination. He will be standing up because he's going to object to every question that is asked as to which there is not P6dWcom1- Corrected a proper foundation laid that the witness has personal knowledge of what he is testifying about. And so that's the issue. To the extent that Special Agent LaMon is going to testify about standard practice or that he understood from other people that certain things happened or did not happen, there's going to be an objection raised that this witness is not competent to testify as to those matters, and that's what I'm trying to work through, because I would like to avoid a situation where the direct examination is a series of objections that are sustained on various questions.
MS. FOSTER: Yes, your Honor. So, this has happened in every other, well, every one of the search witnesses that has been called in this case has had the same exact scenario occur, whereby a team goes and clears the property. And then he will only be testifying about his personal knowledge, which is that when he searched the property, those firearms were in the security room and he saw them in the security room. If the defense does not want me to elicit testimony about the details of the clearing of the property, I don't have to. Your Honor's right. He doesn't know exactly what they did to the firearms when the property was cleared. However, my purpose only in asking those questions was just to correct any potential misimpression about how the firearms were displayed when he saw them. P6dWcom1- Corrected
MR. AGNIFILO: Your Honor, if I may? I appreciate your Honor's observation about I can object to questions. Here's my application. I don't want to be put in that position. I don't want the jury seeing me objecting to firearms that were in the security room as though there's something that I'm worried about in the nature of that evidence. Because this evidence is not evidence of guilt of anything. Mr. Combs has a professional security company, and the professional security company has a dedicated, locked room in the house at Mapleton and all the guns were in the security room, either in a safe, which I think is independently significant, or somewhere else in the locked security room. And if this witness can't tell this jury where these guns were found, this witness's testimony is irrelevant as to that point and also, I think, runs the risk of being unduly prejudicial.
The government certainly knows the agent who got into that security room, who got access to the safe and who found the guns in their natural, pre-law enforcement arrival condition and position. These are guns. This is not like -- if they don't know where they got the baby oil. That's fine. If they don't know where they got the Astroglide, that's fine. I'm not objecting to that. I don't know where they found the Astroglide. Great. Where it was when you saw it? No problem. P6dWcom1- Corrected These are firearms, and they're putting these firearms in front of the jury for a reason, and that reason has nothing to do, in my opinion, with a fair trial for Sean Combs. Now, why didn't I object to the firearms as a general matter? Because I thought there was going to be eyewitness, direct testimony that there was a safe in the security room and the guns were in this locked security room. That's a very significant fact.
And if I ask this witness, isn't it true the security room was locked, I don't know. Well, isn't it true that the guns -- where was this gun found? This is a Glock, a Glock semiautomatic pistol, where was this gun found? I really have no idea. Where was this long gun found? I really have no idea. That is prejudicial, inadmissible testimony. I understand in terms of the rules of evidence, your Honor's right; I can object to everything on a question-by-question basis. But since we know this going in, it's much easier that they can call the witness who found the guns, or they don't have to put the guns in evidence. That security has guns is neither nor there, and the only way that makes it not unduly prejudicial is if I can get out direct evidence from a witness with direct, eyewitness knowledge of where the guns were found and what the state of the guns were when the agents arrived at the scene. And if this witness can't do that -- and what I'm hearing is that this witness can't do that -- then this witness P6dWcom1- Corrected should not testify.
MS. FOSTER: Your Honor, this is how every single law enforcement search is done. A team goes on and secures the property prior to the search team arriving at the property. So this is something that arises in every single law enforcement search. And if the defense would like to call the person who was initially on the property in the security room, they could do that, and they can ask this witness, does he know whether the guns were found, initially when they were, prior to the team that secured the property arriving, were they in the security -- in the safe, were they on a different chair, they can ask those questions. What he will testify to is what he knows, which is that when he was there, the firearms were in the security room.
THE COURT: Well, I'm hearing that there's no -- let me just make sure I understand this. Mr. Agnifilo, you're not objecting, you would stipulate that the firearms that we're discussing were found on the property.
MR. AGNIFILO: Well, I would stipulate to -- well, I'm not sure. Your Honor's asking me the question for the first time. My belief is that these firearms were, A, all in the security office, that the security office locks, that Mr. Combs, as your Honor knows, wasn't on the property at the P6dWcom1- Corrected time. He was on an airplane in Florida, so I don't have any eyewitness knowledge as to whether the locking door was, in fact, locked. I can tell the Court I've been to the house many times. If I ever want to go in there, I have to ask someone to unlock the door. So I know that that door is typically locked to the security room. The security room has a, you walk into the security room. There's a safe on the far side. That safe locks, and I think it's very important that this jury know exactly -- and I don't know, because we don't have any -- I mean the people who are going to know are law enforcement witnesses who are going to go in there and say I got access to the security office, and this was the state of the security office and the firearms in the security office when I got there.
THE COURT: All right. Let me ask a question. Can we find the person who actually did this? Even if there's a team of people, isn't there one of those people who can just come in and say what they did: we opened the door, we opened the lock, we went in, we got it out of the safe, and there you go?
MS. COMEY: Your Honor, is it all right if I step up for this?
THE COURT: Of course.
MS. COMEY: Thank you. Here's the issue. The way that HSI conducts searches P6dWcom1- Corrected is they send in a specialized team that is not trained in or responsible for the collection of evidence or the documenting of items. Their only job is security, so they go in, they sweep the premises, make any guns safe. They know to keep the guns in the place generally where they're found, and then they leave. And then the search team that's waiting right outside goes in and searches for evidence and collects the evidence. So the team that sweeps and makes it safe is not documenting who found what where. Their job is only to focus on security, to make sure that there isn't any threat to safety. So they're not documenting who made what firearms safe. They're not documenting who went into what room. Your Honor, part of the issue here is this is a sprawling, huge mansion, and so there was a very, very big team.
So I don't know that we'll be able to figure out who specifically went into this security room and who specifically made these guns safe. But I don't know we need to in order to satisfy the chain of custody, because what this witness will testify to is the same thing that the other search witness testified to with respect to the Miami search, which is a team who I was in charge of in terms of making out the plan to make this location safe went in after they had received instructions to make it safe and not move anything other than necessary to make safe, to leave all property and evidence in the home in and around the place where it was found and then leave. And P6dWcom1- Corrected then search team went in, and when I went in to do the search, I found these pieces of evidence. And that's what this witness will say. He will say that a security team went in, made the property safe, including the instructions were to make any guns safe. They went in, did that, left.
And then I went in, and when I went in, I found a variety of evidence, including guns in a security room. I believe that the testimony will be that it was in a security room that was capable of being locked. I assume that the door wasn't locked when he went in because part of making a premises safe, which I'm sure this witness could testify to, is making sure there are no locked doors behind which a potential threat could hide. So the whole purpose of making it safe is to make sure there aren't locked doors or locked areas where a person who could be a threat could hide. So all of the doors would've been opened. But what he will say is inside the security room, which could lock and had safes that could lock, there are firearms that had been made safe. And I imagine if your Honor permitted Ms.
Foster to ask the question, she could ask based on the instructions you had given the security sweep team and based on your own experience in law enforcement, what is your understanding of why those firearms were laid out with their magazines removed? And I expect his answer will be I understood that they had been made safe by the security team. P6dWcom1- Corrected And so I think that is what we're talking about here. I don't think that that interferes with chain of custody. I don't think that that raises any questions about whether these firearms were found in that room. And I don't think that it raises any of the concerns that Mr. Agnifilo is raising in terms of the admissibility of this evidence or in terms of the appropriateness and relevance of this testimony.
MR. AGNIFILO: First, I'm not seeing how the guns are relevant. I'm just not. I'm not seeing how guns which are in a locked security room, which is what the government has agreed to be the state of the situation, is relevant to any of the charges in this case. And this is highlighting -- so here's where I think my request is. I think that it's not an answer from the government to say we don't have a witness who is going to be in a position to testify as to whether that security door was locked or unlocked. They have to find that person, because if it's locked, if all of these guns are behind a locked security door and possibly in a locked safe, that is just a very different situation than having loose guns in a house where children live. And people have strong feelings, as they should, about guns and home safety and it's a very divisive issue. And I don't mean this in a disrespectful way, I think the proposed presentation of evidence is irresponsible. They should get the witness who's going to say I P6dWcom1- Corrected gained entrance to a locked door, to go into a locked security area, and when I went into this locked security area, this is what I saw. And if they don't have that, I don't think these firearms should be brought into this trial in any form or fashion.
THE COURT: Well, that's not what this witness is coming in to testify about. He is only testifying that the firearms were on the premises, and then he maintained the chain of custody to now present them in court today. That is literally all this person is testifying about. So I think Ms. Foster's suggestion was that she is happy to clarify precisely along the lines that you've indicated: that they were not splayed out on the floor in the residence in a way that would be potentially irresponsible in light of the children there. And I'm sure if you wanted, she would, with leading questions, indicate that he had no knowledge about whether they were behind locked doors, whether they were safely maintained, all of those things, because he simply just is not commenting on those types of issues. But he is relevant for a purpose that is proper for the government to bring him in, which is he saw them there and that he maintained the chain of custody to today's date, and that's why he's testifying.
So I don't see the objection to his general testimony. I think it's the parameters of what he's going to say. We'll see on direct what Special Agent P6dWcom1- Corrected LaMon is going to say, and you can make appropriate objections if Ms. Foster veers from the course. Right? Ms. Foster, I think the issue is just you wanted to clarify that when you're showing, for instance, the picture that is part of the chain that shows that the firearms were on the property, that they were not that way as an original matter. And the witness might say, well, I don't know the original way in which these weapons were stored, but they were not stored this way. And Ms. Comey clarifies it. The way the questioning would go is that, in his experience, they would have been moved by other people who were on the team. And then at that point Mr. Agnifilo can ask anything on cross-examination he wants about where the guns might have been or where they aren't and what's the scope of the witness's knowledge is. All right? That's how we're going to proceed with Special Agent LaMon.
MR. AGNIFILO: Can I add one thing, though?
THE COURT: Yes.
MR. AGNIFILO: I think the way that we're about to do this is a violation. It violates 403. I don't think lack of knowledge should all of a sudden --
THE COURT: Let me stop you for just one second, and then I'll let you continue. You knew what this witness was going to testify about. P6dWcom1- Corrected
MR. AGNIFILO: I didn't know he had no idea where the guns were. I didn't know that. I didn't know that he had no idea, that he's going to say I have no idea where they were. I thought he had some indication of where these guns were.
THE COURT: What's the 403 issue if he's going to say I have no idea and I'm not saying they were here, I have no idea where they came from, why does that help your case?
MR. AGNIFILO: It doesn't help my case. I want to know exactly where the guns were because the guns were responsibly maintained by a special security service behind a locked security door. I want to know exactly where these guns were. I don't want to start playing Russian roulette with guns, which is the way you play Russian roulette, but I don't want to do it. It's risky and it's unnecessary, and so I have a 403 objection to the testimony as I understand it to be coming in.
THE COURT: Do we have a person who can testify as to where the guns were actually found?
MS. COMEY: Like I said, your Honor, I don't think we can reasonably do that because that is not a function of the search team. But what I think what Mr. Agnifilo can do to make the point that he wants to make is he could ask this agent were all of the guns found in a security room? Did that security room appear to be maintained in a professional manner based on your own experience in law enforcement? I expect he would say P6dWcom1- Corrected yes. Was there a gun safe? Was there a gun safe that would fit all of these guns? Did there appear to be a place where all of these guns would have been stored? Do you have any reason to think that those guns weren't stored there safely before your team removed them? I think that he will get the answers he wants for all of them, and we're not going to fight him on that. So our goal here and the reason we're in this argument is because we're trying not to leave a misimpression with the jury while also getting in relevant evidence with the individual who maintained the chain of custody.
THE COURT: Why doesn't the government just ask those questions on direct? Because I think Mr. Agnifilo's issue is that if he has to do it on cross, then that has a different --
MS. COMEY: That's fine.
THE COURT: -- atmosphere for the jury. But if the government does it, then it will be crystal clear that no suggestion is being made that these guns were not in a very secured environment within the security office of his home.
MS. FOSTER: Yes. Actually, we are going to ask the questions already on direct, what does this room appear to be? It appears to be a security room. We're going to say, show him a picture of the firearms, gun safe and say what is this. He'll say it's a gun safe, and we can ask the questions of --
THE COURT: Ms. Comey, she said it very nicely in her P6dWcom1- Corrected answer. So I think that's the proper sequence of questions. If you can just elicit that testimony, then I think that to the extent that there's any potential 403 issue -- I'm not sure that there is -- but you would eliminate any suggestion along those lines, and it doesn't matter for the government's case and the reason this witness is testifying.
MS. FOSTER: No. We're actually affirmatively not trying to create some impression that these firearms were in some unsecured location that was a threat to children.
THE COURT: Based on this discussion, you are going to affirmatively --
MS. FOSTER: Yes.
THE COURT: -- suggest that they were, in fact, maintained in a very safe way within the residence.
MS. FOSTER: That's right.
THE COURT: OK. All right. So that resolves that issue. I think I know how we're going to proceed with Special Agent LaMon. This is what I was hoping to spend more of our time on. On the issue concerning the juror, is there any reason why at some point today -- it can be now or it can be later -- we don't simply bring the juror out to address a couple questions that appear to be left open from the parties' submissions to just figure this out and get to the bottom of P6dWcom1- Corrected it? Mr. Agnifilo, I take it that if there's, like, a rational explanation, as Ms. Shapiro suggests, for the juror's answers to these questions, then there's no issue. But if there was some deceit, then I don't know that the defense would have an argument that there is no legally sufficient reason to dismiss the juror. Am I generally right about all that? That's what I'm trying to get to the bottom of.
MR. AGNIFILO: My position is I don't think we're even at the point where we need follow-up. I think it's so clear that these were innocuous, harmless, you know -- I'm going to say something and then I'm going to regret that I said it. He doesn't speak for a living. We're held, we're tossed on our own petard with the way we say things in court, because we speak for a living. I don't know that this juror is held to the point of precision and things like that. And I think everything that we pointed out in our letter, I think, indicates that these were harmless, nondeceitful responses of a juror under, you know, not rushed in a bad way, but unfamiliar. He's in courtroom conditions doing the best he can. And I haven't had a chance to talk about your Honor's proposal with the rest of the lawyers and Mr. Combs, but I am hesitant to raise this issue again and lead this juror to think that we think that the juror said something wrong.
P6dWcom1- Corrected Now, there's obviously a standard of facts and evidence and belief where that is appropriate. I just don't think we meet that standard. I think that the juror's answers are innocuous and much more consistent with a mistake. The whole way we got into this terrain is we were concerned about his residency, which seems to no longer be an issue. And I think the juror has shown -- this is one of the most diligent juries I think I've seen in 35 years -- and he's part of that very diligent jury. They're here on time. They stay as late as we need them to stay. They've done everything we've asked them to, and so I think there's a measure of good faith that I think should be bestowed on each and every member of the jury, including the juror we're talking about. I want to talk about the rest of the team to bat around your Honor's suggestion, but my initial reaction is I don't think we're at that point.
THE COURT: Does anyone from the government want to be heard on that question? Let's take a step back to what the inquiry is and the questions I had asked of the parties. So, there was a question really of just residence, as Mr. Agnifilo noted. And I think based on the submissions that no one is of the belief that there's authority to suggest that there's any issue with this juror concerning qualifications to serve. Because basically you have 28 U.S.C. 1865, and there's P6dWcom1- Corrected no question that this juror was drawn from the list of qualified jurors and that he met the qualifications set forth in the statute and that's why he was here for jury selection. And there's also no real question, at least on the record that we have, that he lived in the district, at least as of the time of jury selection. And it's not clear that that would really matter for purposes of qualification anyway. No one has cited to a single case or authority that would suggest otherwise.
So the real question goes to whether Rule 24(c) applies here, which states that alternate jurors may replace any jurors who are unable to perform or who are disqualified from performing their duties. In terms of what disqualified means, the Second Circuit has been unhelpfully vague. They indicate that I have limitless discretion, virtually limitless discretion in all matters concerning this issue. If someone would tell my eight and ten-year-old kids that I have that power, then it would be much appreciated. The only thing that the Second Circuit has really indicated is that the bounds of that discretion are that the juror cannot be removed for issues of bias, where there's a bias in the removal of the juror, or where there would be prejudice to the defendant, with prejudice meaning that the discharge is without factual support or for a legally P6dWcom1- Corrected irrelevant reason.
And so the defense's submission is really that the answers, given the nature of the inquiry both in jury selection and during the current process, was vague enough so that the answers could easily be reconciled with each other. And the subject matter of what was being addressed is so far afield from the juror's performance of duties that that's not a reason to remove the juror. The real suggestion from the government as to the reason why the juror should be removed is because if you take the inference against the juror's credibility, there is a view that if you can't reconcile the answers and the juror was being deceitful, and intentionally so, either in jury selection or in the colloquy in the robing room, then that would be grounds to disqualify the juror. For that to happen, we would need to have a further inquiry with the juror, because on the current record, there's an insufficient basis to make that determination.
And in terms of how we view the inquiry postjury selection, I think that there's a difference. I think that when we address these types of questions during the juror selection process, there may be an inkling or a suggestion that there's a reason to disqualify a juror for cause. And that has one standard, but it's before the exercise of peremptory challenges and impaneling of the jury. And so that has one standard. P6dWcom1- Corrected I think the defense's suggestion, and I think it's consistent with a lot of the cases, is that that default actually flips once you have the jury actually in the box and you have a regular jury and alternates. At that point you need something more to disqualify a juror. And the cases cited by both sides have situations presented that are far more extreme than what's been presented here. And so that's the backdrop for Ms. Steiner. How do you think we should proceed here? Because the defense is leveling serious claims of prejudice. There's the Sixth Amendment that's involved. So I guess the question for the government is understanding what was in the government's submission, is it the better part of valor to just kind of continue and proceed, given there's maybe an inkling of something but not really much more than that?
MS. STEINER: I think the issue, your Honor, is it's very important given that this issue has now been raised, and in the government's view, there has been a lack of candor with the Court. From the government's perspective, the juror has said multiple things that cannot all be true. And so that creates an issue with the record, and so I think that the government's concern is with protecting the record now that this issue has been brought to the fore. I think, again, the government's view is that based on these inconsistencies in this juror's own statements, some of P6dWcom1- Corrected which have been under oath, that that does provide sufficient reasonable cause, in your Honor's very broad discretion, as you noted, to dismiss this juror. That's why we have six alternates. Of course, if the Court thinks that additional fact finding is appropriate and necessary, then the government would have no objection to that. But I do think, given where we are, with the record that we have, additional steps would need to be taken to flesh this issue out such that the record can be protected.
THE COURT: My preference would be to hear from the juror, because I think that it is likely that what we will hear will be a perfectly innocent explanation for the answers. I don't think that they're irreconcilable. I think that for the reasons that the defense has stated, there's a way to reconcile the entire record. So my preference would be to run that to the ground, because I understand the government's concerns that -- and Ms. Steiner, you just indicated that there's kind of, maybe an ambiguity, at least, in the record. And I don't think the defense would disagree with that. And so that would be my preference, because I think on the current record, I would have to look and really kind of figure this out and probably do some more research. But that's what I prefer to do, because it might be that we can just quickly resolve this and put this issue to bed without further P6dWcom1- Corrected inquiry.
While the defense is mulling this over, I will address one thing, which is the suggestion that was made in court and repeated in the defense's submission that there is somehow a biased reason for the government making the application that they did. There is absolutely no basis for that suggestion, absolutely zero. And so to be perfectly clear, from the outset of this proceeding to the current date, there has been no evidence and no showing of any kind of any biased conduct or biased manner of proceeding from the government. And that goes from the nature in which the government exercised its challenge or suggested challenges for cause of the veneer, which they did in a controlled, reasonable and reserved manner, consistent with the highest standards of their office, to the present time. There's nothing here in what arose in this situation to suggest any biased reason of any kind.
The only reason why this situation even came up is because of a statement that was made on the juror's own volition to jury department staff in a friendly and in an offhand banter. And the only reason the jury staff informed the Court about it is because they just wanted to keep the Court in the loop. They didn't understand there was an issue. Neither did the Court. Neither did the parties when this first came up. P6dWcom1- Corrected It was only when the government did a further review of the jury instruction, the voir dire transcript compared with the transcript of what had occurred in the robing room that any issue came up. And there is a facial inconsistency between some of those answers. And so it is absolutely fair and understandable that the government would raise that to the Court. And there is not an inkling of any kind of bias here or in any other part of this proceeding. As the defense itself notes in its letter, this was an unusually diverse group of jurors that came in, and we have a diverse juror regardless of what happens on this current application. So I just want to put that issue to rest because there's absolutely no basis for it on the current record. With that, now that I've, in a long winded way, addressed that, anything from the defense?
MR. AGNIFILO: Could we just speak a few minutes about your Honor's proposal?
THE COURT: Yes.
MR. AGNIFILO: We can do it quickly. Your Honor, we had a chance to talk. I think I'm going to defer to my colleague, if that's OK?
THE COURT: That is OK.
MS. SHAPIRO: Your Honor, I think our concern is twofold. P6dWcom1- Corrected We don't think that the purported inconsistencies rise anywhere close to the level of what would suggest a problem, and we're very concerned that calling this juror back for questioning for what will now be a third time will have a negative impact on the juror, and the juror will feel singled out and picked on. And we're very concerned about how that might impact the deliberations going forward, and we think it's totally unnecessary. And with regard to the issue alluded to about the record, we can be very clear, to the extent leaving the juror on might otherwise -- and I can't imagine this would be the case, given the standard, create some sort of appellate issue if there's a conviction here, we waive that knowingly and voluntarily. There is no issue there that would require it. But I think we're very concerned about the impact on the juror of any further questioning on this issue.
And we think there's really no reason for this. This is clearly, on the record that we have from the voir dire, the questionnaire the juror filled out as well as his answers to your Honor's questions in the initial part of the voir dire process and then in open court to those questions that were asked of all the jurors together as well as his answers on the two times in the robing room, I think it's quite clear what's sort of going on with his residency. And as your Honor indicated, there's no legal issue P6dWcom1- Corrected with that. So we really feel like the record is sufficient to establish that there's no inconsistency that remotely rises to the level of any concern of bias indicated in the cases. I can also tell your Honor I personally was involved in the Parse litigation, and that's the kind of extreme case where something has to be done if it's caught during the trial.
In that case it wasn't, and even in that case, the government opposed any finding that that juror was biased or should have been removed. So I just think this doesn't, you know, as all the cases we cite in our letter involving other issues that arose with misstatements on voir dire, where the Supreme Court, the Second Circuit, district courts in this district have held these are innocent mistakes, they don't rise to the level that a juror should have been disqualified for cause. And I think that's what we have here. It doesn't even remotely approach the need for further inquiry. And we are very concerned about the impact on the juror that that would have.
THE COURT: All right. Well, we don't need to get into this right now, but is there a response from the government?
MS. SHAPIRO: And I just want to add that Mr. Combs is present in court, and if your Honor wants to inquire, he will confirm that he's waiving this as an issue going forward.
THE COURT: Mr. Combs, are you waiving the issue? THE DEFENDANT: Waive it, your Honor. P6dWcom1- Corrected
THE COURT: All right. This is for the government. Here's one thing you probably don't disagree with. I've read the cases in your submission. I've read the cases in the defense's submission. As I've said, they are unhelpfully vague as to the legal standards that apply here, but it is true that across the cases the nature of the issues that came up were far more extreme than those presented in the current case. And there's perhaps an understandable way to reconcile all of these issues, which is that I believe that the question that was initially asked during voir dire, during the group proceeding, was where do you live, and then kind of who do you live with? But based on the answers that were being given by the group, it could have been that the juror thought where do I live, I live in the Bronx, and that would be consistent with everything that we've heard, because he indicated that he had moved out of the Bronx in the last two weeks, and there might be some ambiguity about how much time he was spending in each place. But that's at least what he said. As to the second question he might have understood it to be who is in your family group. As to that question he indicated his fiancée and his baby daughter. And so you can reconcile these things, and given what we're talking about, which is where do you live and kind of basic questions, it would be surprising that someone would try to make up something P6dWcom1- Corrected about it. Maybe even if there was some inconsistency it wouldn't rise to the level of removal of a juror, given the various constitutional and other rights that the defendant enjoys. So I'm just putting that in front of you so that you can react to it.
(Continued on next page)
MS. STEINER: Yes, your Honor. Thank you. Look, I would agree with you that some of these cases have more extreme circumstances. I think that's also because the cases cited to by the defense are in the case of a Rule 33 motion after the conclusion of trial. Here I think we're in a position, as your Honor noted, where Rule 24(c) is operative because we're still very much in the middle of trial. The jury hasn't started deliberating. Your Honor has broad discretion. I think this is most akin to the Figueroa case where the Court figured out in the middle of trial that the particular juror did not satisfy one of the requirements under the JSSA. They are the literacy requirement, and at that point excused the juror for that reason. I think similarly here we're talking about a requirement under the JSSA, which is why I think it is a significant issue. So that's one. I think the other point that I want to make, your Honor, is given where we are now it's the government's position that the most prudent thing to do to ensure the integrity of the proceedings would be to get to the bottom of this issue, and have additional inquiry. The government has at least one question with respect to this juror that we think it would be prudent to ask; namely, whether or not their employer has a residency requirement because that could also be a reason why, despite the fact that they're not living in the district, they may have indicated that they live in New York. It's the government's understanding that at least some of the positions for that employer do require residency in New York, so that would be one example of a question that may help elucidate this issue further.
MS. SHAPIRO: Your Honor, now we're talking about involving his employer in this. This just goes further to illustrate the point about how this is really harassing this juror. And I would note that the literacy requirement is presumptively prejudicial and obviously for good reason because we're talking about a case in which evidence involves documents that people have to be able to read. This has really gone far afield, and I think the suggestion is troubling that we would further harass the juror in the manner proposed by the government.
MS. STEINER: Your Honor, if I could briefly respond. I really don't understand why the defense is so averse to asking this juror further questions. I wasn't present in the robing room when your Honor inquired of this juror a couple of days ago, but I have no doubt that the Court in a very non-confrontational and pleasant way can ask additional questions of this juror to conduct the fact-finding that is necessary, again, to ensure the integrity of the proceedings.
THE COURT: All right. So the way we're going to handle this is: I'm going to think about the arguments that the parties have made, and if there needs to be further inquiry with the juror, we'll do it at the end of the day. I think that's better. Because I think if we do it now, that will be disruptive to the jury that is all sitting there. I think it will be easier to do that if the remaining jurors are excused and we just ask him to stick around for a little bit of time, and we can have that inquiry if I think it's appropriate. So I will think about that. Anything further before we finally begin?
MS. STEINER: Not from the government, your Honor.
MR. AGNIFILO: Not from us either. Thank you judge.
THE COURT: So we will proceed with the next witness.
MS. COMEY: That's Agent LaMon, your Honor. Ms. Foster is just going back to alert him that she's going to ask a series of questions that I've written out for here along the lines of what we discussed earlier, so she's going to let him know about those questions, and he'll be ready to proceed.
THE COURT: So should we take five minutes?
MS. COMEY: I think it will take two.
THE COURT: Then I will ask the deputy to check on our jury. Give us a couple minutes, and then we'll come out.
MS. COMEY: Your Honor, before we call Agent LaMon, we plan to offer a few exhibits. Our paralegals have pointed out to us that I've made a less-than-clean record of what exhibits are in after Jane's testimony, so I'll being cleaning that up a little bit.
THE COURT: Very good. Thank you.
(Recess)
(Continued on next page)
(Jury present)
THE COURT: Welcome back, members of the jury. As you can see we're only 50 minutes delayed today so we made progress from yesterday and we'll keep working for more progress. With that, the government has its next witness, or I understand there are some exhibits to address.
MS. COMEY: Yes, your Honor. We have a few exhibits to clarify for the record that I believe may not have been properly offered, and I apologize for that. For the record, we offer the following exhibits: A-104-11A, A-104-11B, A-104-74A, A-104-74B, A-104-74C and A-104-74D, none of which we are asking be filed under seal, so those would be public. We offer those.
THE COURT: Any objection?
MS. GERAGOS: No objection.
THE COURT: Those exhibits will be admitted.
(Government's Exhibits A-104-11A, A-104-11B, A-104-74A, A-104-74B received in evidence)
(Government's Exhibits A-104-74C and A-104-74D received in evidence)
MS. COMEY: Then we offer the following exhibits under seal, your Honor: E-331-AR, E-331-BR, E-331-C, E-331-FR, E-331-HR, A-104-59P, A-104-60P, A-104-61P, C-251, C-348-AR, C-348-BR, E-331-I, E-331-JR, A-104-59A, A-104-70A, A-104-72A, A-442-33 and finally A-104-18. We offer all of those under seal pursuant to your Honor's pseudonym order.
THE COURT: Those exhibits will be admitted under seal.
MS. COMEY: Thank you, your Honor.
(Government's Exhibits E-331-AR, E-331-BR, E-331-C, E-331-FR received in evidence)
(Government's Exhibits E-331-HR, A-104-59P, A-104-60P, A-104-61P received in evidence)
(Government's Exhibits C-251, C-348-AR, C-348-BR, E-331-I received in evidence)
(Government's Exhibits E-331-JR, A-104-59A, A-104-70A, A-104-72A received in evidence)
(Government's Exhibits A-442-33 and A-104-18 received in evidence)
THE COURT: With that, the government may call its next witness.
MS. COMEY: Forgive me, your Honor. I think Ms. Slavik also has exhibits to offer.
MS. SLAVIK: Your Honor, pursuant to the parties' discussion yesterday, the government offers the following exhibits: C-653-1, H-101-A, A-417 and J-308.
THE COURT: Those exhibits be will be admitted.
(Government's Exhibits C-653-1, H-101-A, A-417 and J-308 received in evidence)
MS. JOHNSON: And, Ms. Gavin, could you please pull up Government Exhibit 1505, which is a demonstrative? The government offers at this time all of the exhibits listed in Government Exhibit 1505, which the government will provide the Court and the court reporters copies of those, but specifically noting that the government offers 3A-113 under seal pursuant to the pseudonym order and 3A-113R not under seal.
THE COURT: All right. The exhibits identified in Government Exhibit 1505 will be admitted on the basis specified by Ms. Johnson.
(Government's Exhibits 1505, C-303, C-311, C-312, C-317, C-319, C-320, C-330, C-330-AF, C-332-A TO GX C-332-E, C-334-A TO C-334-B, C-335-A, C-343-A, C-364-1, C-364-2, C-364-4, C-364-6, C-364-6A, C-364-6B, H-104-B, 3A-101, 3A-102, 3A-103, 3A-105, 3A-106, 3A-107, 3A-108, 3A-109, 3A-111, 3A-112, 3A-113 (SEALED), 3A-113-R, 3A-114, 3A-115, 3A-116, 3A-124, 3A-130, 3A-134, 3A-139, 3N-102, 4C-101, 4C-102, 4A-107, 4A-114, 4A-115, 4A-124, 4A-126, 4A-130, 4A-132, 4A-134, 4A-136, 4A-140, 4G-111, 4G-122, 4G-130, 4G-141, 4G-151, 4G-161, 4G-171, 4G-180, 4G-192, 5A-141, 5A-144, 6B-103, 7H-149, 7H-152, 7H-155-1, 7H-155-2, 7H-155-3, 7H-159, 7H-160, 7R-101, 7R-125, 7R-129, 7R-129-A, 7R-129-B, 7U-101, 7U-107, 7Y-107M 7Y-107-A, 7Y-108, 7Y-108-A, 7Y-114-A, 7Y-114-B, 1308 received in evidence)
MS. SLAVIK: Your Honor, before the government calls its next witness, we'd like to publish two of the exhibits in evidence.
THE COURT: Proceed.
MS. SLAVIK: Ms. Gavin, could you please publish what's in evidence as Government Exhibit C-653-1 alongside the stipulation at Government Exhibit 1301 paragraph 28. Reading from Government Exhibit 1301 paragraph 28: Government Exhibits C-601 through C-653, including the subdivisions thereof are true and accurate excerpts of data extracted from cellphones used by Kristina Khorram. Thank you. You can unzoom that. Could you please zoom in on the text in 653-1, starting at the first blue text. Could you zoom in on the entire page, please. Puff music phone two, November 21, 2023. Make sure Robin is not doing anything dumb like not having that rent paid on time. Can you make sure she paid for this month, please. And please let me know when she hits me because when you don't, it's not the best decision. Call me. Why you not picking up? Kristina Khorram, November 21, 2023, 10:29 p.m. Robin said her rent was paid. Can you go to the next page, please? Puff music phone 2. Okay. You can take that down, please.
And could you keep up Government Exhibit 1301 but put up Government Exhibit H-101-A in evidence. And focusing on paragraph 26 and 27 of Government Exhibit 1301, on or about September 22, 2024 in the vicinity of Newark International Airport, HSI seized the Government Exhibit H-100, a cellphone from Damien Butler's person. Government Exhibits H-100-A through H-116, including the subdivisions thereof are true and accurate excerpts of data extracted from Government Exhibit H-100. You can take that down. And could you turn to page 2 of H-101-A. Maybe we could put this -- the full pages or both pages of H-101-A on the screen. Thank you, Ms. Foster. Starting with the text on January 11, 2017 from Cassie: My bathroom door is broken down. He's blaming me for going to someone else's house when I drove around and pulled over to see if I was being followed. And I was. He has my key so I'm leaving. I do not feel safe. I'm not fucking with anyone else. Could you focus on the next page, please.
And I wasn't going to anyone's house. I was going home. Three of my doors are now broken. This is crazy. D-Roc: He is coming to the house. He just text me. Someone was following you home? You're safe. I don't think it's a good idea to leave your place. That's not going to make it better. The driver. He has my key. I don't feel safe. Your house keys? Yes. Puff has my house keys. He has to because I locked it, and he came back in. He thinks I was going somewhere else when I was just trying not to be followed. This is crazy. The key has a blue fuzzy tail. Please take it. Thank you and sorry. Just stay in your crib. The last thing you want to do is leave your house. I'm at the house. Puff is here. You know I can't take your keys from him. He is here. You are there. I think that's the best thing for now until things calm down. Thank you, you can take that down.
THE COURT: Thank you. The government may now call its next witness.
MS. FOSTER: The government calls Special Agent LaMon. Your Honor may I approach just to put a binder on the witness stand?
THE COURT: You may. ANDRE LaMON, called as a witness by the Government, having been duly sworn, testified as follows: DEPUTY CLERK: Sir, could you please give the Court your first and last name and spell your first and last name.
ANDRE LAMON: Andre LaMon. That's A-N-D-R-E; L-A-M-O-N.