(Jury not present)
THE COURT: Please be seated. Let's first begin with the issue concerning the juror. Just starting with the standard that applies. As stated by the Second Circuit in United States v. Fazio, 77 F.3d 160, 169-170
(2d Cir. 2014).
THE COURT: District courts have broad discretion under Federal Rules of Criminal Procedure 24(c) to replace a juror at any time before the jury retires if the Court finds that a juror is unable or disqualified to perform their duties. Removal of a juror is the prerogative of the Court and does not require the consent of any party. Moreover, the Federal Rules of Criminal Procedure do not require any inquiry prior to the dismissal of a juror. In discussing the standard applicable to review of a district court's decision, the Court in Fazio noted that a reviewing court should not disturb the trial judge's exercise of discretion in dismissing a juror unless there is a bias or prejudice to the defendant. Prejudice, in this context, the Court clarified, exists when the discharge is without factual support or for a legally irrelevant reason. While most of the cases that have been cited involve requests to dismiss a juror from the defendant, that is not always the case.
As always, the Court's role is to maintain the integrity of the process, ensure fairness, and confirm that jurors that hear the case will follow its instructions and dutifully apply the law to the facts impartially. The government cited, among other cases, to United States v. Arline, 660 F.App'x 35, 39-40 (2d Cir. 2016). In that case, the district court dismissed a juror after that juror was observed listening and watching a proceeding not meant for the jury. When questioned about the incident, the juror gave inconsistent answers about what had happened. Based on that conduct, the district court had reasonable cause to dismiss the juror. The district court confirmed that even a brief hearing was not required under those circumstances, again citing to the Second Circuit's decision in Fazio. That takes us to the circumstances of this case.
Now, in the morning when we addressed this, I had indicated views that based on what was in the record, I had a question as to whether it met a -- whether it was sufficient to dismiss the juror. We had a colloquy among the parties, and Ms. Steiner had indicated that on the government's view, based on a close review of the transcripts, there was more than sufficient information to dismiss this juror. And so during the break, during the lunch break and some of the other breaks we had, I took a close look at both the transcript from the colloquy in the robing room, as well as the transcript from the voir dire proceeding, and so let's start there. First of all, to address any suggestion of bias, the Court previously in the morning today noted that there is no evidence whatsoever, no basis for any charge of any claim of bias. The way in which this issue came up was simply an offhand conversation that the juror had with a member of the jury department, which was innocent enough.
And that is described at the transcript on pages 4950 through 4951. It was simply the answer to a question in conversation where the juror indicated that he recently moved to New Jersey. Those are the words of the juror. He further indicated on questioning from the Court that he moved in with his girlfriend. He said it may not be permanent, but that is where I've been staying for the last couple of weeks. So that's what the juror initially said. He further indicated that he has been staying there, meaning the place in New Jersey, most of the time. That's on transcript page 4953. That is what the juror initially said. There was then a long break while counsel conferred with their respective teams and clients to confirm and discuss whether any further questions should be asked of the juror. Each side came back and they had some followup questions. The juror, meanwhile, was outside waiting in the hallway.
When the juror returned, the Court asked some of the questions that the parties had requested. So the discussion continues on transcript page 4959. Now, here when the juror was asked about the apartment that he previously had in New York, the Court asked: You're still staying there? And the juror said yes. The Court asked: How many nights per week do you stay there? The juror answered: Four to five, mostly during the week. I've been working. Monday through Friday I work. So between the breaks here, the juror started by saying that he had moved to New Jersey, moved in with his girlfriend, and that that is where he was staying for the last couple of weeks. And also saying that he stays there most of the time. After the break, when the parties were discussing what further inquiry was appropriate, the juror said that actually he was spending four to five nights in his New York apartment, mostly during the week.
Now, on further questioning about the juror's child and whether she lived in the New Jersey apartment, the juror was asked: Has she always lived in the New Jersey apartment? And the juror answered: She was born in New Jersey, yeah. And so the Court asked: She was born in New Jersey so she's been living there? And the juror said, Yeah. And then you've been in New York? Meaning the juror. And the juror said: Yes. And now this is the Court: And then now your girlfriend has an apartment in New Jersey, so that's where your daughter is living? And the juror answered: Right. So in this questioning, the juror clearly indicated that he had been previously living in New York but then was moving into the New Jersey apartment to where his daughter was then living and had been living because that was the question the Court had asked.
As to this portion of the transcript, the government after receiving this transcript noted that in voir dire this juror had answered in response to the very simple and straightforward questions of where do you live and who do you live with: I live in the Bronx. I live with my fiancée and my baby daughter. Now there's a couple problems there. That when the juror was asked in the robing room where his daughter lives, he indicated that his daughter lived in New Jersey with his -- he said girlfriend, but the Court assumes that the fiancée is the girlfriend. And so there's an inconsistency between the voir dire transcript and the robing room transcript on that particular issue. The other and separate inconsistency is that in the robing room transcript when explaining the living situation of the juror in New York, he indicated that in New York he lived in an apartment with his aunt.
But in the voir dire transcript when asked about who he lived with, he identified his fiancée and daughter, who, the robing room transcript indicated lived in New Jersey, not in New York, but omitted the aunt who did live in New York, according to the juror in the robing room transcript. So within the transcript from the robing room proceeding there are several inconsistencies. And, more importantly, between that transcript and the transcript of the voir dire proceeding, there are additional inconsistencies. As detailed in the government's letter, there are also separate issues concerning some of the information that they point to there. I'll just direct the parties to that information that is repeated in the government's submission. Now, where does that leave us?
The issue here is that where there is some suggestion that either the juror was unable to follow simple instructions and answer simple questions, or if there was any effort to be -- to shade the truth or be deceptive about matters that were inquired upon both in the voir dire proceeding, which is a critical part of this case where the parties have the chance to address issues that were central to the qualifications of the juror, as well as potential bias or other things that might be important to the exercise of the parties' peremptory challenges, as well as any applications to exclude jurors for cause, there are serious questions about the juror's candor and the juror's ability to follow the Court's instructions; and when we get to the point of the case later, the ability of the juror to apply the law to the facts clearly given the discrepancies in the record thus far. It is for those reasons that the Court does not feel that further inquiry of the juror is necessary.
Put aside that neither side advocated for such an inquiry, and the defense raised deep concerns if the juror was further inquired of. The reason why we have alternate jurors in this case is to address the potential situation of a juror as to whom there are concerns about either their ability to give honest answers to questions, their ability to follow the rules, and so what the Court is concerned about, even if as a technical matter this juror would be qualified to be a juror, is that the changing answers and inconsistency give the Court worry about deception and lying, which further implicates the veracity of other answers that the juror answered during the voir dire process, including about the myriad questions that go to the heart of the case.
And even as to the issue we are addressing, it seems like a trivial matter in one sense, but the issue that came up, and the only reason why the Court had a discussion about it is that there was a concern at that time that it goes to the question of the juror's basic qualifications to serve under the criteria that's spelled out in the governing statute 28 U.S.C. 1865. Even if the juror is, as a technical matter, qualified, omissions or inconsistencies as to such a basic question as to where you live raise serious questions concerning the propriety of maintaining this juror. Again, the purpose of having alternate jurors is to maintain the integrity of the process so that all sides in this case can be comfortable that the jurors that are deciding this case have no questions about whether they can fairly and impartially apply the rules of law of the court to the facts of this case, to consider the evidence in a fair way, and to follow the instructions of the Court. Where there is a question like this on this record raised as to those points, removal of the juror is required in this Court's view. And so for that reason, the juror will be dismissed, and we will inform the juror so that he does not return on Monday.
MR. DONALDSON: Judge, may we make a record, please?
THE COURT: Yes.
MR. DONALDSON: First of all, I think -- we, not I, we, of course, we lodge our objection to the Court's decision, but let me just make a quick record. As an initial matter, we did not want the juror questioned, not because we believe that there was a complete clarity on the record related to his house or residence, but because we did not want the Court to send a chilling effect to the juror to what we believe the government was asking regarding where he lived and how his employment has residence requirements. That was our concern because that would, in our opinion, literally chill this juror in case the Court had decided he could stay. So that was our concern about asking the questions. Relating to bringing the juror back to clear up, I'm inclined to believe that these answers are not as significant as to his ability to serve at the court. I'm going to say why.
I don't believe that where we reside, New York versus New Jersey, and how persons sometimes have fiancee, girlfriends, boyfriends, whoever, who live in New Jersey, and then they go back and forth. If -- not if -- since the juror has indicated he lives in New York and goes back to see his fiancée or girlfriend in New Jersey, that is in my experience, a very, very, very, very, very common thing, particularly in New York and New Jersey. Very often people have loved ones or girlfriends or boyfriends who live in New York, they go there four times a week, but they live where they live. This juror indicated he lived here when he was sworn, he goes back and forth to New Jersey, which is normal, and I don't know when that changed or if it did change or if there's something he can explain, I think he should be the opportunity to explain. Like my colleague said this morning, these jurors have been particularly attentive for approximately four weeks or five weeks.
They have sacrificed, I think, a great deal to be on this jury. And number six, in my opinion, has been awake — I can't say that for all of them — has been awake every day for five, six hours listening attentively to the evidence. I think, and I disagree with the Court, respectfully, I do not believe that this particular juror cannot perform his duties. I do believe that his participation in the jury will maintain the integrity. I do believe that he will be able to follow instructions and apply the law. I don't think there is anything on the record that says he will not. The fact that he has some, and the Court is saying inconsistencies, and I'm concerned that the Court is equating inconsistencies with lying. I'm concerned the Court is equating inconsistencies with the possibility of being untruthful or shading the truth. I don't think that this is the case. I think this particular juror answered the questions as truthfully as he could.
I think we put questions to this juror in the back, and we are, as attorneys in the court, analyzing his answers in a way that produces inconsistencies, that may be true, but I don't think they are indicative of him not being truthful or trying to hide something from the Court. I think if we bring him out here and ask him questions without asking questions related to his job, I think that we can come to some understanding of what really happened. I think it's worth it, particularly to the defendant that he be given that opportunity because clearly he has come here every day. Clearly, he has been here on time. Clearly, he has stayed here until 5:00, sometimes later. Clearly, he wants to be on the jury. And he's dedicated time to be here. I think these questions and answers are not of the magnitude that would discharge him from this jury.
I know that the Court started earlier with how this came up, and I appreciate -- that part aside, I appreciate the Court saying the issue came up accidently, innocently, et cetera. That is all true. I don't doubt that, and I appreciate the Court saying there was no bias, and the prosecution did everything they were supposed to do from jury selection on through. I understand that. I'm not disagreeing with the Court specifically on that. But what I will say, and I have to say, I feel obligated to say, and that is that I have been here in this district court for 25, 30 years. I have had a lot of trials in this district, particularly with some people in this group and other persons. And this is the first time I can say in this 25 years we have this type of diverse jury in this district. It hasn't happened in my 25, 30 years practicing. I think we are moving in the right direction. As the Court has stated, and I think my colleague provided the court a letter, and U.S. v.
Slaughter indicated, we have been going in the opposite direction since 1990 in this particular district when it comes to Black and Hispanic jurors. For whatever reason, the process that this Court used for us to get a jury worked, and it worked wonderfully in that we got a diverse jury. How this happened is one thing. But the result of what's going to happen if we take this juror off on this record, the result is, in my opinion, going backwards. Now, it may not be intentional. It's not. It's clearly not. No one is saying that's what's happening. But I would be reluctant to say we've taken strides to get to a point where we get a diverse jury, that we are now going to do something that will result in the diversity of that jury being shortened. That part is important to me, to, I believe, my client, and to, I believe, the defense table, and to, I'm sure, the prosecutors. We don't want to be doing things that appears to take steps backwards.
I'm not saying we're doing it intentionally, but I think it's important to note that. So with the record that we have, and I know the Court -- and I've been watching the Court for six weeks take great steps to make sure everything is done properly, and I've been actually quite amazed at how you do that. I don't know how you do that on the fly like that, but it's been incredible to watch. However, in this particular situation I think that it is the least we can do is bring that juror back out and make sure the best we can that what we are coming to the conclusion of that he is unable to -- I think the elements are unable to follow the Court's instructions or apply the law properly, if we're coming to that conclusion based upon the answer that he gave, I think it's important for us to make sure that's the right conclusion. Because he's been here. He clearly wants to be here.
I think one of the factors that the prosecution was arguing is the reason there is not enough Black and Hispanic jurors is because Black and Hispanic jurors don't answer the call enough. That was their reasoning, and that was found okay by the Court. Well, he did answer the call. He's here. He wants to be here, and he's been here for four or five weeks. So to kick him off now without being sure what's going on, I think in my opinion - this is just my opinion. It's not anything else - but in my opinion doesn't show the appearance that we want to show. And now I think that's important. We have to be doing what we think is the right thing to do at all times, and we must also have the appearance that we're doing the right thing all the time. If the man came here, which he did; he sat in the jury, which he did; he has been here five and six weeks, which he has. He can do all those things, and I think we have to make sure what we are concluding is correct before we dismiss this juror.
THE COURT: All right. Anything from the government.
MS. STEINER: Your Honor, I have nothing to add to your Honor's ruling. As we did indicate earlier this morning, and as your Honor has weighed out very carefully in the record, we do think the record is complete on these facts, and that no additional inquiry is required. I do want to respond to what Mr. Donaldson is suggesting. As your Honor is aware, and as all the parties are aware, we have a very diverse jury in this case, which is a wonderful thing. And Mr. Donaldson is suggesting that we make a decision here based on race. And the important thing in a situation such as this one, as your Honor has noted, is to ensure the integrity of the proceeding which requires us and the Court to do the hard work of establishing whether or not there is reasonable cause to dismiss this juror because of a lack of candor with the Court, and I think your Honor has more than outlined a sufficient basis for that finding. I will also note, your Honor, that -- and it's true Mr. Donaldson has noted that juror has been very attentive, has come on time, and I will say also to compliment this jury they really have been showing up in a timely manner, I think all the jurors have been paying close attention, including the alternates. So we have no reason to doubt the ability of an alternate or any of the other jurors to continue on in this case and to fulfill their obligations.
THE COURT: All right. So Mr. Donaldson, you know, I hear -- and I heard you, and I hear the concerns that you're raising, and in terms of the issues that I raised in terms of the discrepancies in the transcript, what you noted is we're talking about where the juror lived. And in voir dire, it was, I think literally one of the first two questions in the group questions, which is where do you live and who do you live with. And as you noted, those are pretty straightforward questions, and people have a lot of situations that would be responsive to that question. And so if the juror had indicated that he was sharing time between the Bronx and New Jersey or that he explained the situation in any way, shape, or form, that would be something, and I think no one would have had an issue with that. The problem really is, is that in voir dire, the juror was pretty categorical. He said: I live in the Bronx, and I live with my fiancée and my baby daughter. And those are simple questions that anyone can answer and has no reason to answer in a different way unless there's an effort to try to get on to the jury.
(Continued on next page)
THE COURT: That's the only reason why you would say anything that would be inaccurate about that particular line of questioning, because it doesn't have any other bearing. No one would think it would have any other bearing other than on the qualification to be on a jury in a case that's pending in the Southern District of New York. And so that's sort of the starting place there. And then we get to what happened when we had a colloquy with the juror. And as I noted, the juror initially said that he moved to New Jersey and was living in New Jersey and later clarified that that's where his daughter had been living, because the Court asked the juror, again, just inquiring as to the living situation. So it's not just an issue of -- and just to add to that, initially, when the juror indicated that he was living in -- he had recently moved to New Jersey and he moved in with his girlfriend, the Court asked where he was living previously, and the juror answered in the Bronx.
And then while the Court was attempting to ask a question, the juror answered, I still have a New York license. I still maintain that residence. All my bills go to the Bronx, so nothing has changed. And that again would suggest an effort to, in the juror's mind, try to get onto the jury. He wants to be on the jury, and so he's making that clarification. And the reason why that's significant is that after there's a break, that's when there's questioning about where the juror lives and where, in stark contrast to what the juror initially said, he then indicates that he actually spends most of his time in the Bronx, in New York, and not in New Jersey, which is just flat inconsistent with what he previously said during the early part of the colloquy. He said he spends four to five nights a week still in New York. So then your suggestion is, well, why don't we have the juror actually come forward and answer some of these questions to clarify that, and I hear that.
The issue, though, is not having the juror try to reconcile those inconsistencies. That might provide a rationale to put these things together, but it would not address why there were inconsistencies in the first place, and it would not address the concern of whether the juror is shading answers or trying to provide an explanation in an attempt to stay on the jury, which the cases have indicated raises questions about the integrity of the process, about the fairness of the process. And that is the reason why we have alternate jurors. And as to those alternate jurors, we engaged in a fair process, where each side had the ability to have peremptory challenges to strike the jurors they didn't like. As you point out, that's why I said earlier today, and it's very true, that regardless of this application, we have a very diverse jury, and that would continue to be the case.
But the concern, even if we were to hear from the juror and have some explanation to reconcile the different answers, is that there would be an appearance and a reasonable perception that the process may have been tainted; that there may be a juror on the jury who has an agenda, who wants to be here and is not going to be either able or willing to follow the rules. And that is a determination that the Court has to make without regard to any other considerations, because if the integrity of the process is compromised in that way, then the commitment that I made to the jury, and that the jury made in response, to have a fair and impartial proceeding and to decide this case based on the facts and the law and not based on any other considerations of prejudice or bias, would be compromised. And that is the reason -- if there is a concern about that, that is where we have the alternate juror step in, and that is why this is the right step to take at this juncture.
MR. DONALDSON: Your Honor, may I say one more thing, and I'll sit down?
THE COURT: Of course.
MR. DONALDSON: And I'm sorry, Judge. I'm trying not to say too much. I understand what you're saying. I truly do, but it is going to be a less diverse jury when you do what you said you're going to do. That is a fact. And I, for one, believe that that is, in my mind, particularly practicing in this district so long and seeing what I've seen, I think that is of paramount importance, sometimes above just about all else, that we have a jury that is representative of who they're making decisions against, particularly in this city. So I wholeheartedly but respectfully disagree with the Court in that respect. I think that we do compromise the integrity of this process when we make a jury less diverse. I think that -- and I'm not saying that in all situations. If the right reason comes up, then fine. I just say keep it fair. That's my motto. But I think in this particular situation, I don't think it's an unreasonable or -- and it's completely in the Court's discretion, and I respect that as well.
But in this particular situation, I don't think it's that much of a burden on the process or something that we all shouldn't want to ensure that we're coming to the right conclusion. That's why I do not think that simply bringing him back out or going in the back or doing whatever has to be done to make sure that we're making the right decision. In my opinion, it's just that important. I shouldn't say my opinion. In our opinion, it's just that important. So I understand what the Court's saying. I can see, for the record, that the Court has thought about this extremely well. I see that, and I respect that. But I just -- I'm basing everything else, my experiences in this courthouse, on several of these floors, that what we have here is something that we should be striving for. And if we're going to reduce that, then I think we should have an extremely good reason to do that. And last thing, in response to what my adversary said about Mr.
Johnson asking us to make a decision on race, I have a rule. I don't generally play the race card unless I have it in my hand. And I'm not saying I'm playing it now, but the facts are the facts, and I'll go with what the facts are. And all I'm suggesting to the Court, and I'll sit down, for this type of decision, we do have alternates that were -- you know, we all picked those alternates just like we all picked the sitting juror because we select those that we want to preserve. So I do understand that they are equally appropriate for the jury. But to remove one during the trial, I think it wouldn't burden us too much just to make sure and bring him out here for however many minutes the Court deems appropriate to ensure we're doing the right thing -- not to ensure we're doing the right thing but to ensure as best we can that the conclusions drawn are the right ones. That's all I have.
THE COURT: All right. I hear you, Mr. Donaldson.
MR. AGNIFILO: I have preservation issues, and it's an argument that we haven't made. I see where the Court's going, but I want to just say this for the record, and I can do that very quickly, if that's OK. I had this exact issue in a state case, and there's a body of state law. And the state, it's the Court of Appeals of the State of New York interpreting the U.S. Constitution. I just want to bring your Honor's attention to the case. It's not a federal case. The case is People v. Jeanty, 94 N.Y.2d 507, from the Court of Appeals. And what it basically says is that there are differences between the principal jurors and alternate jurors and that a defendant has a constitutional right to a jury of his or her choosing, that being the principal jurors.
Now, one of the things that I'm seeing, I'm not seeing -- there's a wide disparity from the way certainly that federal law has been enunciated in this courtroom and possibly, you know, accurately so in terms of the cases that have come before federal courts. The state courts are very different. And the states are interpreting the same Constitution that the Second Circuit's interpreting and that the district courts are interpreting. And the way that Jeanty, which is the highest court in the state of New York, interprets the Constitution, it is to say that there is a difference between the principal jurors and the alternate jurors. And that's really what that decision is about; and that a defendant has a right absent conditions that are far more compelling, I think, than the ones we have here, to a jury of his or her choosing. I know I'm throwing the ball into the corner of the end zone by bringing up state cases, but this is actually an issue that I had in another case, and I was trying to check why there's this wide distinction between state cases, which seem to be interpreting the same Constitution, and the federal cases that we've discussed today. For all those reasons, I just want to make the record clear that that's our position, Judge. Thank you.
MR. STEEL: May I, sir?
THE COURT: All right.
MR. STEEL: Your Honor, I'd like you to consider just one additional point. I feel it's important for the Court to potentially consider, if you haven't, that all of this information that this honorable Court based its decision upon has been known during voir dire, and all these people in front of this Court heard it and did not raise the issue. And now, after weeks of trial, after watching which, each juror makes faces at certain times or may have some sort of reflection in their body language, now, all of a sudden, we go back to voir dire and something that should have been picked up at the time and say now it's obvious that the juror made inconsistencies, which may have -- well, would cause the Court to believe that the juror wanted to be on the jury and made some potential falsehoods. And I think that that's a very bad road to go down, because that's how people gain the system. I'm not poking at the prosecution or anybody else. I'm just saying that it seems like it's an issue that everybody knew about, but nobody was concerned with it to raise it when we were striking the jury and exercising our peremptory challenges. And it does not -- that needs to be factored, in my request for the honorable Court, into your consideration and I would ask you to do so and at least bring in the juror to potentially explain any questions the Court may have.
THE COURT: I want to fully consider the things that everyone has said, as I always try to do. I will say as to the last point, I don't know, Mr. Steel, what you are referring to exactly. The entire premise and the reason why we are here talking about this issue is because there was information that came to light this week when we had a colloquy with this juror. That is the reason why we're talking about this. This was certainly not known to the Court at voir dire. And if it was known to the defense, then I think that's a separate issue. But it was certainly not known to the Court, and it's certainly not something that was raised during the voir dire process. In fact, the juror's explanation turns on things that he says happened after the voir dire process began. Now, it's the inconsistencies in the answers there and the inconsistencies between those answers and the voir dire colloquy that are raising the concerns here. And to be very clear, it's not just this particular issue that is at stake.
The problem is that where there are these types of concerns raised as to these specific questions, that opens up the questions about the other answers, the other issues that were raised during the voir dire process, that the parties and the Court went back and forth on to develop a questionnaire about over a series of weeks. And the questions, everyone agreed, were very important in this case to make sure that the jury that we drew was going to be a fair and impartial jury that could follow the Court's instructions and consider the evidence presented in an unbiased way. And so when there are these issues that come to light during the process -- and they came to light in an organic way just based on an issue that had come up with respect to the juror -- it is the Court's job to make sure that the process is not threatened. And that's why we have six alternate jurors, because the Court anticipated that some things might happen during this very long trial.
And to have a trial like this but to have some people wondering was there a juror who was seated who did not have the intent to follow the Court's instructions or could not follow the Court's instructions but instead was acting on a personal agenda -- and there was some evidence of that -- and action that was readily available, to seat one of the alternate jurors, was not taken, and instead that juror was allowed to deliberate on the case, I think, goes to the core of undermining the trial process. And that's something that the Court has to monitor. That's just, Mr. Steel, to your concern. But I'm going to think, Mr. Donaldson and Mr. Agnifilo, about the issues that you've raised. And so if there's any change, if I think it's warranted to bring the juror back to have a discussion, then I'll let you know. The entire jury is gone today, so it's not something that can be done today anyway. So I think the better part of valor is to make sure that I've considered everything that you've raised, because again, I always try to. So I will make sure to do that, and I'll advise the parties if there's any change in how we're going to proceed.
COURT CLERK: Your Honor, may I speak to you very briefly?
THE COURT: Yes. All right. Ms. Steiner.
MS. STEINER: Your Honor, just very, very briefly. I just wanted to make the record clear, if it wasn't already, that no one on the government's side had any awareness at the time of voir dire that this juror was living anywhere other than New York, that he was living with anyone other than his fiancée and daughter and that those family members lived anywhere other than New York.
MS. GERAGOS: We didn't either, your Honor. I just want to make that very clear as well.
THE COURT: All right. So this is something that came to light during the process, and it happens from time to time. All right. Let me have the parties at a brief sidebar.
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(In open court)
THE COURT: All right. We have a sensitive matter that we have to address in the courtroom, so at this time I'm going to close the courtroom. We're going to need everyone in the gallery to be cleared out. No one will remain except for the parties and the attorneys on the case. Everyone else should leave the courtroom, and the courtroom will be sealed.
MS. COMEY: Your Honor, may I ask for authorization for AUSA Jacqueline Kelly to remain in the courtroom? She's our supervisor.
THE COURT: So given.
MS. COMEY: Thank you, your Honor.
MS. SHAPIRO: Your Honor, there's also a lawyer on the defense team.
THE COURT: That's fine.
(Pages 6251-6260 SEALED)
(In open court)
THE COURT: All right. Are we ready to proceed?
MR. AGNIFILO: I'm going to save your Honor ten minutes of work.
THE COURT: OK.
MR. AGNIFILO: The Jeanty case that I cited says it is expressly based on the New York State Constitution.
MR. DONALDSON: That's still a Constitution, though.
THE COURT: All right. Where do you want to start? We have the videos and images, GX 361-BFG and 362-DF.
MS. GERAGOS: Should I start, your Honor?
THE COURT: Well, as to these, the videos and the images, the response from the defense is that in order to address the issue as to the reason why these videos and images are being put in, the defense would have to get into privilege. So maybe the defense can explain this, because they requested to be heard orally on their privilege issue.
MS. GERAGOS: Yes, that's right, your Honor. I just thought it might be easier to do this orally, and I promise to keep it short. The thrust of our argument here is yes, that we would have to explain privilege issues here. As your Honor is well aware, Ms. Khorram was the primary agent for Mr. Combs at the time that the lawsuits started, you know, from Ms. Ventura's lawsuit and afterwards, in terms of coordinating things with his attorneys and being his primary agent for all privileged communications with counsel. At this time that she took these screenshots, and they're videos but they're kind of live photos from iPhones, so they're essentially screenshots as well. We had been sued by -- I think there were at least three different lawsuits at that time, two by Doug Wigdor and another one. And they had been expressly directed by counsel -- Mr. Combs had two civil counsel at the time -- to document, to take photos of these, any types of threats like these.
And I can represent to your Honor that when Mr. Agnifilo and I came on board, right after the raid, these were some of the very first pieces of information that we received from them. And so to have these in evidence -- we understand why the government wants them. Of course, they've charged a conspiracy that ended in 2024 with Mr. Combs's arrest. So we understand that the probative value for the government is to be able to show that by December 28 of 2023, Ms. Khorram knew about the Jane's allegations, knew about their sexual life. And I assume they will argue, in summation and through the summary charts, stating the alleged conspiracy. I don't think that taking these photos and screenshots out of the chart will harm the government because they are going to be able to make that argument by showing that Jane herself went to Ms. Khorram and detailed these things to her extensively in the exhibit that your Honor's already seen and your Honor has already ruled in.
And so our argument here is really is based on 403 because they were taken at the direction of counsel at this time. But obviously the communications themselves, because they are not with an attorney and they were just taken with a phone, are not itself privileged. But the explanation just goes a lot deeper. And so our argument here is that we would be unduly prejudiced because to explain this and explain why she's taking these photos would be to explain that he had multiple civil law firms at the time. He's been sued by several different people.
THE COURT: Let me just make sure that I understand. The only reason, in the defense's view, that Ms. Khorram took videos and images of these communications is because she was directed to by counsel?
MS. GERAGOS: At the time, she was directed to, yes. I don't know if it's the only reason, but yes, she was directed to. Yes.
THE COURT: That's at least one reason.
MS. GERAGOS: That's at least one reason, yeah.
THE COURT: From the government's perspective then, what probative value can be drawn from Ms. Khorram's possession of those communications where at least one reason why she had them is because she was told to get them by civil counsel?
MS. JOHNSON: Your Honor, I think the probative value here is exceptionally high when it comes to Ms. Khorram's knowledge. At this time -- and I don't think that it's unduly prejudicial or confusing. At this exact same time, Jane testified that she is talking to Ms. Khorram about the sex tapes, and it's another piece of information that Ms. Khorram has about Jane and Mr. Combs. And tellingly, the defense doesn't cite a single case saying that these are privileged materials, because they can't, because they simply are not. And I don't think it's necessary to provide any context as to how Ms. Khorram ended up with these materials. One of the witnesses testifying next week is expected to testify that Ms. Khorram had regular access to the defendant's phone, and the reason he knew that is because Ms. Khorram would text from the defendant's phone. So it won't be a piece of evidence that stands out or is unusual that she had access to his phone, and it is exceptionally probative. The amount and specificity of her knowledge as to the defendant's relationship with Jane is very probative.
THE COURT: All right. So in light of the -- let me make sure I understand. From the government's perspective, Ms. Khorram's possession of the communications is what they're being introduced to show, right?
MS. JOHNSON: Exactly. And Ms. Khorram's continued facilitation of hotel nights after December of 2023. Her knowledge is relevant because she continues to facilitate hotel nights into 2024.
THE COURT: So the point being that it doesn't really matter why she had these things --
MS. JOHNSON: Exactly right.
THE COURT: -- because she had them. Even if she was told by lawyers to go get them, it's fine, because she knows about it. But what's relevant really, and the reason why it's relevant is because the alleged illegal conduct continues after that time.
MS. JOHNSON: Precisely.
THE COURT: All right.
MS. GERAGOS: If I could respond to that specific argument. Jane testified the only hotel night that they had, actually had a hotel night that they had after this, she asked for it. She picked out the Four Seasons. She wanted to have this getaway there, and so for them to then say that Ms. Khorram is the one that facilitated this or in any way arranged this, when this was specifically asked for by Jane, that's just counter to the evidence.
MS. COMEY: If I may, your Honor?
MS. GERAGOS: And then one more point -- I'm so sorry -- and Ms. Comey can go. I also brought out from Jane that anytime she went to his house in 2024 at Two Star Island, Ms. Khorram was not there. Left the premises.
MS. COMEY: If I may, your Honor?
THE COURT: Yes.
MS. COMEY: There are texts that we introduced during Jane's testimony showing that she coordinated with Ms. Khorram to schedule her flight to Miami for her birthday. Your Honor may recall the defendant introduced Don. And there are also texts that Mr. Pérez read today where Ms. Khorram told him that the defendant would be going over to Jane's home on June 18. Those are two instances of alleged sex trafficking that Ms. Khorram was at least involved in facilitating, and so I think that at least based on just those two alone, the fact that she already knew in detail about Jane's views of the defendant and her time with the defendant is highly probative. In addition, Jane testified that the July 2024 incident that Ms. Geragos just referenced was coercive. It involved the defendant reacting in a very aggressive manner, insulting her, belittling her and splashing her from a water bottle when she tried to tell him that she wanted to sleep and that the defendant provided her with a new drug that she had never tried before called liquid molly before the hotel night with Paul. And that's a hotel night that Ms. Khorram also facilitated. And so I do think that there was relevant activity after Ms. Khorram was in possession of these messages and makes Ms. Khorram's state of mind and knowledge extremely relevant to this jury.
MS. GERAGOS: Just, again, very briefly, take those in turn. In June of 2024, when Mr. Combs is in Los Angeles and Ms. Khorram was not in Los Angeles with him. So Mr. Pérez just said he told his supervisor where Mr. Combs was going. In July of 2024, when Jane herself asked for the hotel, at the Four Seasons -- she testified to that -- Ms. Khorram was not in Miami. Those are just my two responses. She was not there. That was my brief response to those two points.
MS. COMEY: I have to correct the record, your Honor. The text message was from Ms. Khorram to Mr. Pérez, and Ms. Khorram was saying PD going to guest house. So it was Ms. Khorram informing Mr. Pérez.
THE COURT: All right. So the objections to the C361 and C362 exhibits on Rule 403 grounds, which is the sole ground that's been invoked, are overruled for the reasons stated by the government in colloquy today. Next.
MS. GERAGOS: And one other issue we wanted to be heard orally about too, your Honor, is with respect to the 2021 message for -- I'm just trying to pull it up so I can get the exhibit number. C501, which is Ms. Khorram to Ms. Greenhill about Mr. Combs sending D-Roc $15,000 in 2021. I recalled, but I wanted to double-check the discovery and make sure I was correct, that at that time -- first, at that time Mr. Butler had left his employment, I think, four to five years earlier. I think he ended his employment in 2017. At this time he had significant financial issues, and he needed to pay for his grandmother's gravestone, and I have that in a text message that I would like to just pull up this. Mr. Butler asked Mr. Combs if he could -- if Mr. Combs could send him some money, that he was in a tight financial spot. And when Mr. Combs then sends out money, Mr. Butler is grateful so that he can pay for his grandmother's tombstone. And so I just don't understand how there's any relevance to this.
He is out of his employment, and he is asking his long-time friend -- putting aside that he was at one point Mr. Combs's employee, these two have been friends for decades and remain friends to this day. And so to add this in is -- it really is, also is prejudicial and irrelevant. So this is, what I'm showing you on the screen is Mr. Butler's initial outreach on January 5 of 2021 to Mr. Combs, asking for the financial help. And then if you could put up the next one. All right. He asks him again on January 13 of 2021, because Mr. Combs didn't respond to the initial message, and your Honor can just read this. He requests the money: I'm 15K in the hole. And then if we could just put up the message after. And then this is January 21. He says: Thank you. I'll pay for my grandma's tombstone today. I mean why is this relevant? Why should this come in?
THE COURT: This is all in GX C501?
MS. GERAGOS: No. GX501 is just Ms. Khorram's message to Ms. Greenhill asking for the $15,000 wire. My argument against this is it's not -- this message, C501, is just not relevant because Mr. Butler is no longer in his employment. He left four years earlier. He is living across the country from Mr. Combs, and he's asking Mr. Combs for financial help. He's asking his long-time, long-time friend of many decades for financial help. And it shows it's because he wants to pay for his grandmother's tombstone.
THE COURT: All right. And it's not as if -- given the timing -- this is 2021 -- so it's not as if it was money that was sent over in 2024, for instance, where there might be some improper purpose for the transfer of funds.
MS. GERAGOS: If it was 2024, around the time that the Mia text messages that were introduced, I could understand arguable relevance of it. But here, I don't see an argument for relevance.
THE COURT: All right. I'll hear the government briefly if they have any response, but I think that's persuasive. Just in terms of the relevance, it's attenuated given the messages that we've looked at.
MS. FOSTER: Your Honor, the government's purpose in introducing this message was just to make the point that their relationship did not end at the end of Mr. Butler's employment with Mr. Combs, and that's relevant because of the later action by Mr. Butler with respect to Mia. It also does establish some form of, you know, financial indebtedness to Mr. Combs. And that's why the government was seeking to admit those messages.
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THE COURT: All right, the defense's objection to GX-C-501 is sustained. What is next that we should cover? Since they're the defense's objections, I'll let you guide me through. What else we should do?
MS. GERAGOS: I'm going to do the relay, and pass it off to Mr. Driscoll.
THE COURT: Mr. Driscoll, why don't we start with just to take care of loose ends, GX -- I'm going to get the number wrong now -- 629.
MR. DRISCOLL: Sure.
THE COURT: So the response that came in from Ms. Slavik -- you may have addressed this in one of the myriad filings overnight. Ms. Slavik said it's not a 404(b) issue because the sex trafficking involving victim number 3 would be part of the charged RICO conduct.
MR. DRISCOLL: Yes, your Honor. Our response to that is we are now I think on day 31 of this trial. It started on May 12. The government has clearly abandoned any argument that Gina is a victim in this case. We've heard not one piece of evidence that she is in fact a victim other than Mr. Kaplan testifying that he once observed a fight between Mr. Combs and Gina. So --
THE COURT: Which doesn't correspond to this particular episode anyway.
MR. DRISCOLL: Correct, which the witness confirmed.
THE COURT: And even if it -- let's say it did, how would that be part of the charged conduct? Meaning, is there some other evidence that the defense is aware of that would connect that to an alleged sex-trafficking episode as opposed to just an incidence of violence?
MR. DRISCOLL: No, your Honor. In fact, the portion of the enterprise letter cited by the government -- and if you read further in those paragraphs in the enterprise letter, the government intended to argue that Gina was essentially sex trafficked; that they were forced instances of sexual conduct; and I think they were probably going to use this message in hindsight I realize this, to argue that that there was force and coerced sex. They abandoned that theory at trial. So to allow them to back door this evidence in now, it is impermissible 404(b) evidence. They're using it to show Mr. Combs is a bad, violent person, and for those reasons it's inadmissible. The reason why they didn't notice this particular evidence or they claim it was direct evidence is for the reasons your Honor just stated: They previously had a theory that Gina was victim 3 in the indictment. They've abandoned that theory. Rule 404(b) provides for more specific required notice under the rule. And when Ms.
Slavik started proffering additional relevance for the exhibit, it was clear that they are now intending to use this under Rule 404(b). So we think it should be excluded just for failure to provide adequate notice. The rule requires not only notice under the Rule itself but also the type of evidence that will be admitted under the rule and the chain of logic leading to the permitted purpose under the Rule and neither of those things were noticed to the defense. Otherwise, we might have been prepared to meet the evidence with respect to this particular text message, in particular which refers to purportedly a specific date of an instance in which Mr. Combs might have been violent. Just taking a step back, the reason your Honor initially excluded the reference was for lack of foundation to tie the message of relevance in this case and also under Rule 403 because without that foundation, the jury is just going to be left speculating as to what happened. The language in the message is clearly inflammatory. The jury is going to hold that against the defense in an unfairly prejudicial way, and we have no additional evidence to elucidate what actually happened. So we also stand on our 403 and 401 objections. The additional foundation the government laid. It's just travel records. It doesn't elucidate what actually happened. So they haven't cured the fundamental problem with the Court's initial ruling.
THE COURT: Very briefly, Ms. Slavik.
MS. SLAVIK: Your Honor, the relevance of this message is that the defense will get up there, the defense will get up there in closing and argue that the bribe that the defendant offered to the hotel security guard to make the video of the brutal assault of Cassie Ventura at the hotel go away; that that bribe was motivated solely by the defendant's interest in preventing bad publicity. We know that's what they're going to say. They opened on that. And this chat directly rebuts that argument. It shows the defendant was aware of the possibility of law enforcement intervening in domestic violence situations, and it shows, importantly, the defendant's awareness of what would happen if law enforcement became involved in those sorts of situations. So this is important evidence that rebuts that argument that will most surely be advanced by the defendant in closing. So I think that's the importance of this message.
In terms of the 403 argument, the defense seems to be advancing this argument that chats have to tie to a specific incident in order to be relevant, and otherwise it will become confusing. And I just don't think that that's warranted, especially here, and that's in large part because of the defense's own strategy of injecting Gina into this case as significantly as they have. For that reason, for the defense -- to support the defense's theory on this issue, Gina has become a major part of this case, and so them wanting now to keep a message out relating to Gina is kind of having their cake and eating it too. At this point, the jury knows who Gina is. They know the relationship between the defendant and Gina spans between Cassie and Jane. They know the defendant was violent towards Gina. They know security was deeply involved in the defendant's personal life, and they know that security often observes and/or was involved in incidents of violence. So I don't think it's right to say that these messages will confuse the jury in any way. I don't think that they're unfairly prejudicial. As your Honor knows, the defense opened on domestic violence. They conceded that the defendant was abusive. So proof that domestic violence was directed at Gina who was identified in the indictment and in the enterprise letter as a sex-trafficking victim, there's no unfair prejudice as to that.
THE COURT: How do you overcome -- now I think you're admitting that it would be 404(b) evidence based on the fact that there hasn't been any foundation laid as to sex trafficking with respect to the incident in the exhibit. And so on that ground, wouldn't it just be out because it doesn't comply with 404(b)(3)?
MS. SLAVIK: Your Honor, this is an argument about notice. I think that notice was given in the enterprise letter, but I don't think we are conceding that this is a 404(b) issue. This is direct evidence of charged conduct in the indictment, and for that reason we should be able to present it as such.
THE COURT: All right. I'm not going to revisit my decision to exclude this exhibit. 629 -- did I get the number right?
MR. DRISCOLL: 629-A -- A-629-A.
THE COURT: A-629-A. For the reasons stated by the defense, I think it would be inadmissible under -- as a Rule 404(b)(3), and as I previously said, it would also be inadmissible because I don't think a proper foundation has been laid, and it would be given that and given the lack of corresponding testimony or evidence to understand what exactly happened during the incident in question, it would be unfairly prejudicial, and that unfair prejudice would substantially outweigh the probative value. So that's deals with that. Now, back to either Mr. Driscoll or Ms. Geragos, what else do we need to address here? There are a number of exhibits that I understand the defense is preserving essentially an opposition to the suggestion from the government that they would qualify under the exception in 801(d)(2)(D), but if you are just assuming that you're going to lose there, and you're just preserving the objection, then in the interest of time, we can proceed now. But I'm happy to address any of these that you feel like you want to raise and have a discussion about.
MR. DRISCOLL: Your Honor, just to preserve the point, our position with respect to the agency exception is that it really requires some elucidation of what the agency relationship between the declarant and the defendant actually is. Normally in an agency relationship, that relationship is defined by the parties to the relationship. It's not defined by a random third-party percipient witness who observes certain things. And with respect to some of the declarants in these messages, we just haven't heard what the scope of the agency actually entails. And that's the nature of the objection.
THE COURT: All right. Well, let's hear it. What are we talking about? Because I agree with you. Not in terms of the sources of evidence. I think that Rule 104 contemplates that there may be lots of different types of information and not even necessarily evidence that would inform the inquiry as to whether evidence is admissible or not. But I agree with you that you need to have some predicate as to what the agency relationship is so that you can evaluate whether the communications are within the scope of the agency relationship. So if you want to address any of these in particular, I'm happy to do that. If you'd like the Court -- I mean, I'm just --
MR. DRISCOLL: Sure.
THE COURT: There's a lot of them here, that's why I'm asking.
MR. DRISCOLL: Perhaps it's best to identify the particular declarants. So, for example, 3G-118, 3G-127, 3G-135, 3G-136, these are message chains between Brendan Paul and Kristina Khorram. We haven't heard anything about Brendan Paul, the scope of his agency vis-a-vis the defendant. We've heard limited testimony about what assistants might do, various interactions with Brendan Paul, but nothing about his employment, what his employment actually entailed.
THE COURT: Generally speaking, what do these communications pertain to? Is there a subject matter that we can use as a category?
MR. DRISCOLL: It's the typical subject matter that we've been seeing in these communications, which is why hence our paragraph in the letter about preservation about addresses, about people going en route to certain locations, things of that nature.
THE COURT: All right. If that's what these communications pertain to, then I think that there's been extensive evidence concerning that role of the assistant to Mr. Combs and the nature of that relationship, and it doesn't need to be part of the formal employment relationship. The real question is whether the -- in that role the people acted as an agent for the principal with respect to a set of tasks, and there's been numerous witnesses testifying as to the broad scope of activities that those types of people would be engaging in. And they would -- unless I'm missing something, they would include precisely the types of things you've identified as these documents would be pertaining to. So for that -- unless there's something else, I would overrule the objection, and you've preserved it, obviously.
MR. DRISCOLL: Sure, your Honor. Just reflecting on the last thing you said. I don't think it has to be a formal employment relationship, but it does need to constitute an agency relationship formally. And that does have legal meaning. There are legal standards regarding what constitutes an agency relationship.
THE COURT: Are you saying as to Mr. Paul that that simply hasn't been established in this case?
MR. DRISCOLL: No, because we know he is an employee. We just don't know what the scope of the relationship is.
THE COURT: Maybe the government can address that specific point. I think the suggestion is that while technically the employment of Mr. Paul has been addressed, no testimony or other evidence has been elicited as to the actual nature of Mr. Paul's employment.
MS. FOSTER: Your Honor, as both Jane and Jonathan Perez testified, Brendan Paul is an assistant, and Jane testified about how he had a role in setting up these hotel nights for her. Every single one of the other assistants who have testified in this case have testified about how one of the roles of their job was setting up hotel rooms, taking them down, and then supplying communications. I will also note a number of communications have been admitted that are substantially similar in this case on that basis. He will also testify next week on Monday to, I anticipate, precisely what I'm saying.
THE COURT: Meaning, Mr. Paul is going to testify?
MS. FOSTER: Yes, your Honor.
THE COURT: I think in terms of the sequence of information that would ultimately support the admissibility of information, I can consider what Mr. Paul would testify to as augmenting the basis for admissibility of these exhibits. So I think on that basis, and assuming that Mr. Paul is going to testify that this was the relationship and these are the types of things that he would do, I would think that there would be a strong basis to further support the admissibility of these exhibits. So I will overrule that category of exhibits where there is an objection raised involving Mr. Paul. So then I'll turn back to you, Mr. Driscoll. What else?
MR. DRISCOLL: So I'm hearing the Court with the agency exception, and I don't want to waste the Court's time, so C-365, C-654, these are messages between Phil Pines and Kristina Khorram, and we just have the same objection.
THE COURT: 365?
MR. DRISCOLL: C-365 and C-654.
THE COURT: All right. Ms. Foster, if you are going to be addressing these.
MS. FOSTER: Yes, your Honor. So it is the same basis. There are hotel records in evidence that have Mr. Pine's name on them. We heard about -- he was also personal assistant. We have heard about how the names of hotels be in the names of the assistants so that they could help to go to the hotel to set them up. And we also heard today about how he continued to have a relationship with the defendant after the fact. And so, again, it's the same basis. All of these messages are between or virtually all of them are between an assistant, here Phillip Pines and Kristina Khorram, who, again, was the supervisor of the personal assistants discussing their responsibilities and one of those responsibilities being the setting up of hotel nights.
THE COURT: I'm looking at these exhibits, and they appear to fit the profile of what Ms. Foster is saying, which is, given his role, there are communications between him and Ms. Khorram about Mr. Pine's doing the tasks that an assistant, someone in this role would do, and so that establishes both -- and I don't think there is a question of the general agency. I think your objection is on the scope of that agency.
MR. DRISCOLL: Yes.
THE COURT: So Ms. Foster says that there's been testimony, the same kind of testimony that's been admitted as to all of these assistants. And now looking at the communications, they seem to be consistent and fit within the scope of that agency relationship. So the objection is overruled as to these two communications 365 and 654. What is next?
MR. DRISCOLL: We can move on to GX-259-D.
MS. GERAGOS: Regarding this exhibit, your Honor, we are also going to put something on the screen in a moment. I imagine the government wants this exhibit to try to show somehow Ms. Khorram's knowledge of Kabrale Williams and charge there. We pointed the government to their own discovery that they turned over to us that the actual record, the Kabrale Williams record, at the Marriott, which we would not set -- we would not object to, but here, this email, this screenshot of an email is filled with hearsay. And we looked into the actual source of this screenshot, and it was actually sent to Ms. Khorram from the travel agent Jess, who asked about Brittany Hall, a totally separate person, not Kabrale, and Ms. Khorram doesn't seem to have any knowledge of who Kabrale is, nor does she respond to that part of the email. So I want to bring that up on the screen so your Honor can see it because not only do we have an objection here based on hearsay, but for the government to then use this to argue Ms.
Khorram's knowledge of Kabrale Williams to try to make her a sex-trafficking co-conspirator, we think would be prejudicial. So if your Honor looks at the screen, there is a message from Jess Ruiz to Kristina December 1 of 2023. Ms. Ruiz is asking: Do you remember why we flew Brittany Hall out in June? Brittany Hall, I think there's been only two questions, I think, about her at this whole trial. If you could see here on the third page, Ms. Ruiz sends a screenshot, so clearly Ms. Ruiz got that email, sends a screenshot to Kristina who says: PD personal request for Britt. Doesn't respond to anything here about Kabrale. And so our issues with this exhibit is it doesn't -- it's hearsay, first of all. And, second of all, putting it in here would be completely confusing for the jury because it doesn't show Ms. Khorram's knowledge at all of Kabrale Williams. She's being asked a question by another employee from the business manager. I've pointed the government to the exact underlying record from their own discovery that they can use to show that Kabrale stayed at the Marriott at that specific day, the folio. I have it for your Honor. I can bring that up on the screen as well, but we just think -- we have a hearsay objection here, we have a 403 objection, and that's our record with respect to this exhibit.
THE COURT: Can you put up the actual.
MS. GERAGOS: That's the actual exhibit. If you could zoom on the names Need Info please. That's the actual exhibit. That's the actual exhibit, the underlying screenshot. What happens a lot of times, your Honor, in iPhones is when you receive a screenshot from somebody, the screenshot saves in your phone. So that's the reason, from what I can tell based on my review of Ms. Khorram's phone, that she has a screenshot in her phone in the first place.
THE COURT: What is Ms. Khorram's response to this?
MS. GERAGOS: She says personal request for Britt. PD personal request. She responds to the question given. Why did we fly out Brittany Hall in June? And she says PD personal.
THE COURT: She doesn't mention Mr. Williams.
MS. GERAGOS: At all.
THE COURT: Just very briefly, what's the response?
MS. FOSTER: Very briefly, as your Honor knows, Count One is racketeering count, and as part of that, Ms. Khorram's knowledge, including the defendant's use of male escorts, is relevant. And so the government is just offering this screenshot as a small piece of evidence that helps to establish Ms. Khorram's notice of the defendant using escorts.
THE COURT: Given that it's a small piece, it will be easy to remove. So the objection is sustained as to 259. Ms. Geragos --
MR. DRISCOLL: Your Honor, just for the record the exhibit is numbered C-259-D.
THE COURT: C-259-D.
MR. DRISCOLL: Yes.
THE COURT: Thank you. What else?
MR. DRISCOLL: C-263, 264 and 265. These are text message chains between Jane and Ms. Khorram, and our position is that Jane's statements do not constitute agency statements as the government proffered them, and they should be excluded on that basis. And the same for Ms. Khorram's statements.
THE COURT: All right. Unless these are mega exhibits of substantial length, can someone put them on the screen C-263, 264, 265. Next. Mr. Driscoll, looking just as Ms. Khorram's statements, why wouldn't those be admissible under 801(d)(2)(D)?
MR. DRISCOLL: Because it wasn't Ms. Khorram's job to interact with Jane in this way.
THE COURT: Hasn't there been extensive testimony that one of her roles was to coordinate travel and arrangements for Jane to -- on behalf of Mr. Combs?
MR. DRISCOLL: I don't think that's how the testimony came out. What I remember Jane saying is that she actually didn't get to engage in this way with the defendant or his agents.
THE COURT: All right. So if Ms. Khorram's statements come in, then wouldn't Jane's statements simply be context to understand Ms. Khorram's statements? Because the point isn't what Jane is saying. The point, I take it of these exhibits is to show Ms. Khorram's knowledge and involvement in these incidents. And so if her statements are the only thing that would be relevant and the government really doesn't care what Jane is saying in response, then on that basis, wouldn't these be admissible as exceptions, or not hearsay and then the other statements would be context as the government explained in this specific instance. There may be other communications where you can't expand the context loophole that wide, but in this context it's really about Ms. Khorram's statements.
MR. DRISCOLL: I think I would agree with you, your Honor, but just looking at the government's draft summary chart, I think they are intending to use some of Jane's statements for their truth. But maybe the government can answer that question.
MS. FOSTER: Your Honor, nothing -- I think that your interpretation of these next three exhibits is exactly correct. Jane's statements here really are not all that important to the government or truth of them. It is Ms. Khorram's statements, and I think it is also just very obvious when you look at this message that she is acting as an agent of the defendant. She literally says -- Kristina writes: Ask them if they can bring up like 15 bath towels. And then: I'll remind him. He's got his cash with him. It's all part of her agency relationship. We also heard from Mr. Perez they're not friends. They don't like each other. Their interactions are as Ms. Khorram facilitating communications between Jane and Mr. Combs.
THE COURT: And to the extent that you're putting in anything as to Jane -- as legal conduct with respect to Jane, that's coming in through other evidence and testimony.
MS. FOSTER: Yes.
THE COURT: It's not these communications because as I'm just looking at them, they seem benign on their face in terms of what Jane is saying.
MS. FOSTER: That's correct.
THE COURT: So on that basis, the objections to 263, 264 and 265 - those are all with the C - is overruled. Mr. Driscoll.
MR. DRISCOLL: C-341-B. And our objection to this chat message is similar to the Uncle Paulie message we previously discussed. This is a chat message between Kerry Morgan and Ms. Khorram that vaguely alludes to -- I don't know exactly, but some instance in which Ms. Ventura apparently locked herself in a wardrobe. So we have a 401 and 403 objection to this exhibit and also hearsay objections to Ms. Morgan's statements.
THE COURT: Just because my eyes are failing me now, who is in blue and who is in green?
MS. FOSTER: Green is Ms. Khorram, and blue is Ms. Morgan. And I think the point here is that we have heard extensive testimony about Ms. Khorram's role in various aspects of the defendant's personal life, including related to the Intercontinental Hotel. So it's very clear at this point how extensive of a role she had and that her communications with Ms. Morgan, it is clear are related to that employment. She says, it's going to turn into an issue if she doesn't. She's locked herself in a wardrobe room. It is clear that this is part of her relationship with Mr. Combs. And I will say none of Ms. Morgan's comments here are being offered for their truth. Oh my God. What door. It's a question. I called her, but her phone is off. It's purely to show Ms. Khorram's knowledge of this situation.
THE COURT: And are there more pages to this?
MS. FOSTER: I am okay redacting actually these later pages.
THE COURT: So these two pages are not coming in.
MS. FOSTER: It actually -- I think if we went to the first two pages. Need her to unlock this door. It's going to be an issue if she doesn't. Oh my God. What door? She locked herself in a wardrobe room. That is all the government is really seeking to focus on.
MR. DRISCOLL: Your Honor, I don't know if that's responsive to the 403 objection.
THE COURT: I'm sustaining the Rule 403 objection, so the objection is sustained as to 341-B. C-341-B. Mr. Driscoll.
MR. DRISCOLL: C-366. So we think this whole chain is hearsay because it's basically just random banter and gossip that does not relate to either Ryan Lopez or Ms. Khorram's employment. There's one particular statement that the government has placed on its summary chart. Go to the next page.
THE COURT: How many pages is this exhibit?
MR. DRISCOLL: Six. Can you go to the next page? On the left side, the bottom three blue boxes, your Honor. I think I saw one of the Cowboys today. You can spot them in the lobby like an escort. I forgot to tell you about it. So we think that's hearsay. It's not present sense impression because it's backward looking. It sounds like it took place a day or more prior. And it's not relevant. And to the extent it has any relevance, we think it should be precluded under Rule 403 because it's a speculative statement, and it's just going to prejudice the defense.
MS. FOSTER: And the relevance reason, your Honor, is the date. It's after the time period of the Cassie relationship. It's before the time period of Jane's relationship. Your Honor, this message is not -- the key purpose in admitting this message is actually not a hearsay purpose. It's not being offered for its truth that there was actually a cowboy. The reason this message is so probative. When I said before it's a small part, this message is very important to the government because we have heard extensive testimony about who Cowboys were and the defendants use of Cowboys. That was the escort service that both Jane and Cassie both testified that were used for their hotel nights. And the important thing here is Ms. Khorram's reaction. She does not say, what is a cowboy? What are you talking about? And so it is not being offered for -- whether or not there was actually a cowboy on that date, to Ms. Geragos' point, is actually not all that relevant to the government. It is being offered to show Ms. Khorram's state of mind, and it is extremely probative important evidence of Ms. Khorram's state of mind.
MR. DRISCOLL: Your Honor, I think that's a very loose chain of inferences merely to prove knowledge. And, again, it doesn't relate to the time period at issue. So --
THE COURT: I think the submission is that its effect on the listener, meaning it doesn't even matter if it's true or not. So if you just excerpt the Mr. Lopez's three messages and then Ms. Khorram's response with the four laughing faces, that's all the government -- that's really all you're putting in Ms. Foster, right?
MS. FOSTER: Yes, exactly. The rest of it is really pretty irrelevant. It's just discussions between coworkers. And another point that Ms. Comey me just reminded me of, it's so important her knowledge at this time because it informs her entire knowledge and the jury's understanding of her knowledge throughout the entire relationship with Jane. And we will see, and we've seen messages where large sums of money are being delivered and facilitated by her to hotel rooms. So this text message directly informs her knowledge, and they are going to argue, and they've crossed many people on their knowledge on what is going on inside the hotel rooms, and I strongly anticipate that that will be a large part of one of their defenses to Count One is that Ms. Khorram had no idea what that money was being used for or about defendant's use of this cowboy escort service, and this message is extremely probative on that point.
THE COURT: At this time, just help me because now there's been so many names. Ryan Lopez is one of Mr. Combs' assistants?
MS. FOSTER: Yes.
THE COURT: So in addition to your argument that it would be going to Ms. Khorram's knowledge or effect on the listener, it also would fall into either the agency or co-conspirator exceptions?
MS. FOSTER: That's correct.
THE COURT: You're saying this is part of their job even if we take the co-conspirator exception out of it. This is part of their jobs at the time, meaning to facilitate Mr. Comb's hotel visits. Whether they were benign or had a criminal element, whatever they were, this was part of their job, and so any comments made about what was going on during those experiences would be within the scope of the agency relationship. And even if that wasn't the case, then we're talking effect on the listener for a non-hearsay purpose.
MS. FOSTER: Exactly.
THE COURT: So the objection to 366 is overruled.
MR. DRISCOLL: The next exhibit is GX-367. It's a message chain between Mr. Combs and Ms. Khorram. We object to one particular statement in the chain as hearsay within hearsay. It's the statement on page 7 of the exhibit that states: Paul cowboy wrote "available."
THE COURT: This is coming in, I suppose, for Ms. Khorram's knowledge.
MS. FOSTER: Exactly, your Honor. Ms. -- we have heard extensive testimony about Paul Arthur, who is a cowboy, and so this is going directly to Ms. Khorram's knowledge. I will also note that it also is evidence of Ms. Khorram's access to Mr. Combs' phone and his messages, and that is something that another witness, Mr. Paul, will also testify, is that Ms. Khorram frequently used Mr. Combs' phone, had access to his messages and would respond accordingly.
MR. DRISCOLL: Your Honor, if we're going to hear that evidence, then under Old Chief that's the less prejudicial evidence that the government can elicit. They don't need this message to prove that Ms. Khorram had access to his phone.
MS. FOSTER: To be clear, Mr. Paul will not testify about a message involving Paul cowboy writing "available."
THE COURT: All right. So let me make sure I understand the hearsay within hearsay. As to the communication from Paul writing "available," you overcome that because you're not putting it in for the truth of the matter. It's just the fact it was communicated to Mr. Combs.
MS. FOSTER: Exactly.
THE COURT: And any statement by Ms. Khorram is firmly within the agency exception, so that's how that statement comes in.
MS. FOSTER: Exactly. I don't anticipate us putting on any evidence that is based on the premise that he was available at that moment in time.
THE COURT: Right. And as to -- there's other evidence -- I mean, I've heard a lot of evidence. So is there other evidence that Ms. Khorram was aware of Paul and his involvement with Cowboys and Angels?
MS. FOSTER: Your Honor, she was aware of Paul. He was a trainer as well as being a cowboy. And so this also goes to her knowledge of his dual role as -- in Mr. Combs' life.
MR. DRISCOLL: Your Honor, that's another reason why this is unfairly prejudicial evidence because Paul had an ongoing relationship with Mr. Combs completely separate from the charged conspiracy. So the government is going to argue the inference that they just argued to the jury, and there is no foundation for it. There is no evidence in the record as to what the statement actually means in context because it's hearsay within hearsay, so we won't be able to rebut it in any way.
THE COURT: Do you have any piece of evidence in which Ms. Khorram shows any understanding that Paul is actually an escort working for Cowboys and Angels?
MS. FOSTER: There's an earlier message also cited in our charge where they're arranging for a hotel night between Jane and Mr. Combs, and she writes to, I believe, it's Mr. Combs or -- I believe it's Mr. Combs: Paul coming up to the hotel room. And so this also supports her knowledge of his -- this was his contact, how it was saved in Mr. Combs' phone and supports her knowledge of his association with the Cowboys and this additional role that he had.
THE COURT: I think that that is sufficient to establish the admissibility of C-366, so the -- we are not on 366. That was which number?
MR. DRISCOLL: 367. C-367.
THE COURT: C-367. So the objection is overruled and it will be admitted.
MR. DRISCOLL: Okay. C-625 on page 5 of the exhibit. This is also a chat Jane between Mr. Combs and Ms. Khorram. We have a hearsay within hearsay exception.
THE COURT: Is there any daylight here? Are we almost done with this list?
MR. DRISCOLL: I think we're very close, your Honor. They said Guido still hasn't dropped off package to house. That's the objection.
THE COURT: What is this being used for?
MS. FOSTER: This, again, is being -- so now a number of different witnesses have described Guido as Mr. Combs' drug dealer, and so this is one just being offered to show Ms. Khorram's knowledge of that. But I would also say that it falls into several hearsay exceptions. We've heard from Jane how Ms. Khorram, one of her roles was to facilitate drug transactions for Mr. Combs. She testified about Ms. Khorram's facilitating the picking up of a package which was drugs to take to Mr. Combs in Miami. And it's pretty clear from the rest of the context of this message when they said, "They said Guido still hasn't dropped off package to house," that the "they" there would be another employee. He later, I believe, responds like: So I won't have any party favors. It's clear he's setting up a party, and the "they" there would be somebody who was acting in an agency capacity for him. However, I will note that this is also being offered for an entirely non-hearsay purpose, which is just to show her knowledge of Guido.
THE COURT: All right. The objection will be overruled. Next.
MR. DRISCOLL: There are two exhibits relevant to the government's summary chart GX-1410, the two exhibits are H-105-A and H-105-B, and we object to both of these exhibits on hearsay grounds as well as on 403 grounds.
THE COURT: These are the exhibits where Mr. Butler and the defendant are discussing someone attempting to be contacted, right?
MR. DRISCOLL: Correct.
MS. FOSTER: That's correct. I actually think it's helpful to go through this message because I think what becomes increasingly obvious is really Mr. Butler's statements are not being offered for their truth in this message. They're being offered almost totally for the purpose of giving context to Mr. Combs' statements. So he says: Wanted you to have this number since I'm on this phone today. Thank you again for coming and being here with me. I think possibly the only part of this -- yeah, the only part of Mr. Butler's response that could -- that the government would rely on for its truth is, again, I'm coming back, but again that is a statement of future intent, so it would fall into a hearsay exception. He then writes: I reached out. No reply. They didn't pick up. That's definitely weird. So the government isn't actually offering that statement for its truth because the government has Mia's testimony about her lack of response, but it also will be obvious in the chart that these messages are being interspersed with messages with Mr. Butler and Mia and calls between Mr. Butler and Mia, and it's those messages and those calls that the government would be using to demonstrate the truth that of statement.
THE COURT: Can we move through the pages here? Is that it?
MS. FOSTER: That's it.
THE COURT: Sorry to interrupt. Can we go to the next exhibit 105-B. Let's go to the next page. Let's go to the next page.
MR. DRISCOLL: That's the last page, your Honor, for that exhibit.
MS. FOSTER: I will note these very long messages, those are Mia's messages to Mr. Butler which we separately will put into evidence as part of their direct --
MS. COMEY: They're already in.
MS. FOSTER: They are already in as part of their direct chain, so we're really only offering them for the purpose of showing he sent them to Mr. Combs and then showing Mr. Combs' reaction. And, again, we also would submit this is co-conspirator statements, but I don't think you need to get there because of the fact that none of Mr. Butler's statements other than statements of sort of future intent, and he says I love you a few times which would be a statement of his then emotional state. Those are the only statements --
THE COURT: Why don't you just put in -- forget about 105-A. Why don't you just put in the text: Let me know when you reach her. Call me when you can, king. Then you have the two statements from Mr. Butler's phone, but like you say, those are in separately from Mia, and then you can have the final message. Doesn't that do everything you would want to do, meaning to the extent you were trying to indicate that Mr. Combs was behind the outreach to Mia and Mia provides the testimony concerning that outreach, wouldn't that do it, and you would avoid any kind of objection because there would be no even plausible objection to that portion of the message?
MS. FOSTER: I think actually almost every single one of his statements where he's conveying some form of information like "that's the last text I got from her" and then "call me back when you can" provides important context for Mr. Combs --
THE COURT: I'm saying that -- sure, because there is not any real content in that message. He's just -- you're saying the first message is in a separate exhibit that is already in evidence, right.
MS. FOSTER: That's correct.
THE COURT: The second one says here's the text I got from her, which is something else that is just independently in evidence. So then the only statement that wouldn't be just plainly admissible would be the one message from D-Roc that you're pointing to, and you're saying that that, if anything, is context and admissible for that purpose, it would be that message, which merely says that Mr. Butler is just relaying a message from Mia. That's what I'm saying. I'm saying can't you just get everything you want without running into the 403 and other arguments made with respect to the other communications in the chains?
MS. FOSTER: I'm sorry, which ones are you saying that we would -- maybe somebody else can do it.
THE COURT: No, it's late. I might not be making sense. I'm saying if the purpose of this is just to show Mr. Combs was behind this outreach, which I understand that's the main purpose, saying let me know when you reach her, call me when you can, king, which is obviously admissible under 801, then having the message that is separately evidence elsewhere from Mr. Butler, that's not really his statement. It's a statement from Mia that is otherwise in evidence. So I don't understand what the objection could be to that message. The next message from Mr. Butler would be clear context to understand what's going on. And it couldn't be -- he's not saying anything else. He's saying this is a text I received from her. And Mr. Combs responds, "Call me back when you can." So what else do you need other than that?
MS. SLAVIK: Your Honor, we might be all saying the same thing. You are saying why do we need to show that D-Roc is copying Mia's text to D-Roc and send it to?
THE COURT: I'm being totally unclear. I'm saying if you had these five messages in, okay, and then did whatever you were going to do with them on the summary chart, why do you need the rest of the back and forth?
MS. SMYSER: I'm happy to speak to that, your Honor. So all of these text messages line up to dates in which D-Roc is communicating with Mia, so there are some that are earlier in December. And if you remember Mia's testimony about reach-outs from D-Roc at the end of November, there's a call followed by text messages with D-Roc. And these show D-Roc's communications with Mr. Combs around that time. These reach-outs then continue into February when both of them are separately reaching out to Mia. And so these are two important pages that have been highlighted, but the entirety of both exhibits is extremely important to give context to D-Roc's reach-out to Mia which is going to be captured in the summary charts. So you see the interspersing of the communications between D-Roc and Combs and D-Roc and Mia and also Combs and Mia, which really just crystallizes that D-Roc is acting in conjunction with Combs in reaching out to Mia, which is very key for the obstruction predicate in Count One.
THE COURT: All right. Mr. Driscoll.
MR. DRISCOLL: Your Honor, I think you have it right, that all the government really needs is these last messages. Everything that comes before our position is it is hearsay. They want D-Roc's statements for, for example, "I reached out. No reply, and they didn't pick up. That's definitely weird." Or "Hey, bro, she hit me back. I'm trying to call her now." They want to use those messages to prove that D-Roc was in fact conducting this outreach, and that's hearsay being offered for its truth. It's not just context for the defendant's statements.
THE COURT: Why wouldn't it fall into (d)(2)(E)?
MR. DRISCOLL: For the reasons we outlined in our letter, they haven't made the requisite showing to show that this particular exchange was in furtherance of some conspiracy.
THE COURT: Why doesn't Mia's testimony establish the basis under Rule 104 for that purpose?
MR. DRISCOLL: Because it was entirely speculative. All she offered was her subjective views as to what D-Roc's outreach, of which she didn't even answer or respond to, what that outreach was. And she testified in wholly speculative fashion over our objection that it was somehow obstructive or indicative of witness tampering, and that's not a sufficient foundation.
MS. SMYSER: Your Honor, I think Mia's testimony certainly provides a basis that these two were working together in furtherance of the obstruction predicate. Mia testified about her phone call with D-Roc. She hadn't heard from D-Roc in a very long time. Mia understood from the context of that phone call that not only was D-Roc in Miami with Mr. Combs, but that Mr. Combs was likely in the room with D-Roc and instructing him to do this. And right after that phone call is when she starts getting reached out to by Mr. Combs, and she ignores those. And then when she ignores those she is then reached out to again by D-Roc who is saying: Why aren't you responding? Have you called Mr. Combs? So I think all of this is admissible on many bases, including the co-conspirator exception, including D-Roc is acting as Mr. Combs agent, and including many of these are not offered for their truth or are admissible under various non-hearsay exceptions. And I will also say to some of the particular statements that Mr. Driscoll raised as to what D-Roc had just done, they would be admissible as present sense impressions. So for all of these reasons, these two exhibits are admissible, your Honor.
MR. DRISCOLL: Your Honor, just to respond to that last point. The government said Mia understood from the context of the phone call that not only was D-Roc in Miami with Mr. Combs, but that Mr. Combs was likely in the room with D-Roc and instructing him to do this. These messages completely contradict that. We maintain our objection. Her testimony was entirely speculative. She was testifying about her subjective fears. They weren't based -- they didn't have any rational basis whatsoever as these messages prove.
MS. SMYSER: Your Honor, I think these messages prove exactly the point, which is that Mr. Combs and D-Roc were working together, and so there was a basis for Mia's understanding that they were working together, and plus she has you know, eight years, of experience of understanding how Mr. Combs operates and how he uses the people around him to reach out to others, and in fact he had done that very same thing with Mia to reach out to Cassie, for example, over and over again through the course of her employment.
THE COURT: H-105-A, the objection is sustained. As to H-105-B, the objection is overruled as to the portion of the exhibit starting with the -- on the second page of the exhibit the first communication from Mr. Combs "Call me. Important." And then the responding messages from Mr. Butler are nothing more than simply relaying the messages that are coming from Mia and which I understand are separately in evidence, and otherwise the statements would be either party opponent statements or just completing context from Mr. Butler about the communications that he's relaying. And so as to that part, the objection is overruled. As to the remainder of these two exhibits the objection is sustained. Mr. Driscoll, what else.
MS. SMYSER: Your Honor, can I say one more thing on this topic? And I apologize.
THE COURT: Yes.
MS. SMYSER: I think would be really helpful if your Honor took a look at Government Exhibit 1410, which puts all of these things into context and shows the importance of even the earlier message that your Honor just ruled the objection to be sustained as to. And so we're happy to, you know, submit something over the weekend on this.
THE COURT: Well, I know because you have to get it in somehow first and the argument that has been raised is either context or co-conspirator.
MS. SMYSER: Or that he's acting as an agent, your Honor, and I think all of those things are true.
THE COURT: 2023?
MS. SMYSER: Yes, because he is acting on Mr. Combs' behalf in reaching out to Mia, and you see that over the course of those communications between Mr. Combs and D-Roc. He's reporting back to Mr. Combs as to what Mia is saying. He is saying like she didn't pick up. So why is D-Roc doing this? He's doing it on behalf of Mr. Combs.
THE COURT: He may be doing something on behalf of him. Like you might do something on behalf of a friend but that doesn't mean there's an agency relationship, and it's in the scope of that agency relationship. And in one of the later messages from February 1, 2024, Mr. Butler's response is, "I would move past that. It's weird. No reply bro." Okay, like that's not enough to establish some kind of -- that when that message is being sent, that there was some kind of conspiracy for an illegal purpose. So you have to establish its admissible under (d)(2)(D), and I'm not seeing how you would do that at this time period given what we're discussing. But, as I said, I don't know why we need further inquiry about this because the later messages show enough that there is an outreach from Mr. Combs. Then obviously Mr. Butler is trying to make contact with Mia. Then there's a response from Mia. Then there are two messages from Mr. Combs. There's another response from Mia. There's the response from Mr. Butler. And finally there's the response from Mr. Combs, all of which would be admissible for other reasons and which provide the basis -- provide what the government needs, maybe not a hundred percent of what the government would like to put in the summary exhibit, but a lot of what the government would like to put in the summary exhibit. Next, Mr. Driscoll.
MR. DRISCOLL: That is it.
MS. FOSTER: Can I ask for one request? Sorry to beat a dead horse. Just the first page of 105-A where Combs writes: "Hey Puff, wanted you to have this number since I'm on this phone today. Thank you for coming and being here with me. And he writes, "Thank you. Okay. I'm coming back. First Combs statement and his statement of future intent, just the context of showing them being together very recently.
THE COURT: Is there any objection to that? I don't see why you would have an objection to that, but let's see from Mr. Driscoll.
MR. DRISCOLL: It's the just the first blue bubble?
THE COURT: I'm looking at black and white. The darker bubble and lighter double bubble on the first page of 105-A.
MR. DRISCOLL: We are fine with that, your Honor.
MS. FOSTER: Thank you.
THE COURT: All right. Anything further from the government before we adjourn other than to hear who our next witnesses are going to be?
MS. COMEY: Nothing further, your Honor. Our next witnesses will be Ms. Sankar, the summary witness who will put in the charts that were the subject of this discussion. DeLeassa Penland will be another summary witness who will put in the demonstrative about the Intercontinental timeline, as well as summary charts relating to Ms. Ventura. Then we will have Brendan Paul, the assistant we talked about. Then we have will Joseph Cerciello who will be our final summary witness who will put in the charts relating to Jane. And then our last witness will be Omar Hazoury, who is a law enforcement agent. Then we expect to rest at that point. Over the weekend we are going to work on getting all of our exhibits in order, making sure all of our exhibits are in. We may need to take some time to work out some remaining evidentiary issues in front of your Honor, but given those are the only witnesses we have left in our case, I'm confident we will rest by the end of next week, and I think we may even rest as early as Wednesday.
THE COURT: Very good. Mr. Agnifilo, anything to raise on your side?
MR. AGNIFILO: So we are going to take the weekend. I mean, so Thursday is a day -- Thursday is a day we do not have court, am I right, Juneteenth?
THE COURT: And just as a reminder, on the 20th, we are ending early because we have a juror who has a son's graduation.
MR. AGNIFILO: That's right. Okay. So let us take the weekend. We have been in touch with the government about their resting time. We will be ready to start whenever the government rests. Oh yeah, after the Rule 29 argument, Judge. I'm selling ourselves short. After that. So let us take the weekend, and we will get in touch with the government about --
THE COURT: So we'll have the Rule 29 argument, and then if there is anything further to do here.
MR. AGNIFILO: Yes, then we would start calling witnesses.
MS. COMEY: Your Honor, we'd ask for the anticipated defense witnesses if they expect to call witnesses on Friday, we'd ask to know who those are by Sunday consistent with your Honor's order, understanding that that is contingent on the Rule 29.
THE COURT: Any reason, Mr. Agnifilo, why we can't do that?
MR. AGNIFILO: No. I mean, that's my understanding of your Honor's order is we were supposed to give notification of the witnesses for the coming week.
THE COURT: All right. Very good. Anything else from anyone for the good of the order? No? I'm not hearing anything. We'll see everyone here 8:30 on Monday.
(Adjourned to June 16, 2025, at 8:30 a.m.)