DIRECT EXAMINATION BY MS. JOHNSON:
MS. JOHNSON: Special Agent Penland, where do you work?
DELEASSA PENLAND: For the United States Attorney's Office in the Southern District of New York.
MS. JOHNSON: How long have you worked for the United States Attorney's Office for the Southern District of New York?
DELEASSA PENLAND: Approximately ten years.
MS. JOHNSON: What is your title there?
DELEASSA PENLAND: Special agent.
MS. JOHNSON: What are some of your duties and responsibilities as a special agent at the U.S. Attorney's Office?
DELEASSA PENLAND: I investigate federal crimes, and that includes conducting search warrants, serving subpoenas, and analyzing data.
MS. JOHNSON: Now, conducting search warrants, serving subpoenas and analyzing data, did you play a -- did you do any of those things with respect to this case?
DELEASSA PENLAND: I did not.
MS. JOHNSON: And did you perform any duties associated with your roles as special agent in connection with the investigation or prosecution of Sean Combs?
MS. JOHNSON: What was your role, if any, in this case?
DELEASSA PENLAND: My role was to review charts and data and verify that it was correct.
MS. JOHNSON: Next to you are two binders. If you could please take the smaller of the two binders, and would you mind looking through all of the materials behind the first tab.
MS. JOHNSON: For the records those are Government Exhibits 1402, 1404, 1405-A, 1405-B, 1405-C, 1405-D, 1551, 1552, 1553, 1554 and 1555 for identification.
MS. JOHNSON: Have you had a moment to look at all those documents?
DELEASSA PENLAND: Yes.
MS. JOHNSON: Do you recognize them?
DELEASSA PENLAND: I do.
MS. JOHNSON: What are they?
DELEASSA PENLAND: These are charts that I reviewed for accuracy.
MS. JOHNSON: And Special Agent Penland, would you mind pulling the microphone a little bit closer to you? Who prepared the charts initially?
DELEASSA PENLAND: The trial team or I did.
MS. JOHNSON: And who confirmed the accuracy of all the charts behind the first tab?
DELEASSA PENLAND: I did.
MS. JOHNSON: What did you do to confirm the accuracy of the charts?
DELEASSA PENLAND: I reviewed evidence that was provided to me to substantiate the information in the chart.
MS. JOHNSON: Who provided the evidence to you?
DELEASSA PENLAND: The trial team.
MS. JOHNSON: And at a high level, what kind of underlying documents did you review in connection with confirming your accuracy of the charts?
DELEASSA PENLAND: Phone records, text messages, hotel invoices, travel records, among other documents.
MS. JOHNSON: What, if any, videos did you review?
DELEASSA PENLAND: I did review document -- videos.
MS. JOHNSON: Are all of the source documents that you reviewed on and the charts relied upon cited in the charts themselves?
DELEASSA PENLAND: They are.
MS. JOHNSON: And were the source documents that the charts rely on exhibits in this case?
DELEASSA PENLAND: Yes.
MS. JOHNSON: And you mentioned that you did review videos. In connection with your review of videos, were you provided with any testimony identifying the participants in those videos?
DELEASSA PENLAND: I was.
MS. JOHNSON: And approximately how much testimony identified the participants in those videos?
DELEASSA PENLAND: Maybe one to three pages.
MS. JOHNSON: Did you have any role in selecting the exhibits that would be used in the charts that you either prepared yourself or confirmed for accuracy?
DELEASSA PENLAND: I did not.
MS. JOHNSON: And, again, who selected those exhibits?
DELEASSA PENLAND: The trial team.
MS. JOHNSON: Can you describe the volume of exhibits that were included as source material for these charts?
DELEASSA PENLAND: They were voluminous.
MS. JOHNSON: How voluminous?
DELEASSA PENLAND: Hundreds of pages.
MS. JOHNSON: Do the current charts reflect any corrections you made after the process by which you confirmed the accuracy of the information in the chart?
DELEASSA PENLAND: They do.
MS. JOHNSON: And are the charts and graphs that you prepared fair and accurate -- that you prepared and reviewed the accuracy of fair and accurate summaries of the underlying evidence that you reviewed?
DELEASSA PENLAND: They are.
MS. JOHNSON: Your Honor, at this time the government would offer Government Exhibit 1402, 1404, 1405-A, 1405-B, 1405-C and 1405-D as exhibits into evidence. And we would offer 1551 through 1555 as demonstratives.
THE COURT: As to those exhibits and demonstratives, are there any objections that the Court has not previously resolved?
MS. GERAGOS: No other objections, your Honor.
THE COURT: Those exhibits will be admitted and the demonstratives may be used as aids.
(Government's Exhibits 1402, 1404, 1405-A, 1405-B, 1405-C and 1405-D and 1551 through 1555 as aids received in evidence)
MS. JOHNSON: I'm hearing that it may be hard to hear you, Special Agent Penland. Can you just check the mic is working and the binder didn't turn it off?
DELEASSA PENLAND: Is this better?
MS. JOHNSON: Yes.
MS. JOHNSON: Ms. Gavin, could you please pull up Government Exhibit 1402 in evidence?
MS. JOHNSON: Special Agent Penland, is this one of the charts that you reviewed for accuracy?
DELEASSA PENLAND: It is.
MS. JOHNSON: And can you please explain to the jury what Government Exhibit 1402 shows?
DELEASSA PENLAND: This chart indicates certain meetings that were attended by certain individuals at certain cities and certain locations.
MS. JOHNSON: I'd like to walk through the columns in Government Exhibit 1402. Starting on the left with the date column, what does the date column reflect?
DELEASSA PENLAND: This reflects the date or the time period where the meetings potentially occurred.
MS. JOHNSON: And below the date in the date column, what is the reference to GX underneath the day?
DELEASSA PENLAND: That's the evidence that has been provided to me that substantiates those dates.
MS. JOHNSON: And moving next to the column that the header reads location (city), what does that column reflect?
DELEASSA PENLAND: This is the city in which the meeting occurred.
MS. JOHNSON: And, again, in that column, does the Government Exhibit number refer to the underlying documentation that reflects the information that you confirmed for that column?
DELEASSA PENLAND: Yes.
MS. JOHNSON: Moving to the next column which says location (hotel/address), what does that column reflect?
DELEASSA PENLAND: This is the hotel or the address of the location where the meeting occurred.
MS. JOHNSON: Moving next to that in reservation name (hotel), what information is reflected in that column?
DELEASSA PENLAND: If the hotel had a name listed for the reservation, that's where that would be located.
MS. JOHNSON: And next there's a column with a heading names, what information is reflected in the names column?
DELEASSA PENLAND: These are individuals that would have attended the meeting during this time period.
MS. JOHNSON: Are you aware if any of the individuals listed in this column were actually present at the location on the date listed in Government Exhibit 1402?
DELEASSA PENLAND: Yes.
MS. JOHNSON: When would you be aware of that?
DELEASSA PENLAND: When there's video footage.
MS. JOHNSON: Aside from instances where there's video footage, are you aware whether any of the individuals listed were actually present?
MS. JOHNSON: In your review of evidence, were there other names contained on some of the exhibits that you reviewed that are not included in this names column?
DELEASSA PENLAND: Yes.
MS. JOHNSON: And how did you determine which names to include in the names column and which names to not include?
DELEASSA PENLAND: If there was evidence suggesting that a person that was potentially coming to the meeting maybe didn't show up, then we did not include their name. Also, there were individuals that indicated they were coming to the meeting but we didn't have their name, so they're not included either.
MS. JOHNSON: And, finally, looking at the final column, flight records, what is included in the flight records column?
DELEASSA PENLAND: These include travel records that indicate travel related to these meetings.
MS. JOHNSON: How, if at all, does the information in the flight records column relate to the last column, the date column?
DELEASSA PENLAND: The dates would have been close in time, not maybe exact, but maybe a day or two before or after the travel date.
MS. JOHNSON: Are there some instances where the travel is somewhat further attenuated than a day or two in this chart?
DELEASSA PENLAND: There are a few, yes.
MS. JOHNSON: Now I'd like to talk about the rows.
MS. JOHNSON: Ms. Gavin, could you go to page 23 of Government Exhibit 1402.
MS. JOHNSON: How many rows are in this chart?
MS. JOHNSON: And does each row reflect a different date or date range that people gathered at a potential location?
DELEASSA PENLAND: Yes.
MS. JOHNSON: And in what order are the rows listed in Government Exhibit 1402?
DELEASSA PENLAND: Chronologically by date.
MS. JOHNSON: And does it start with the earliest date to the most recent date?
DELEASSA PENLAND: Yes.
MS. JOHNSON: So I'd like to work through an example with you to see how this works.
MS. JOHNSON: Judge, just let me know if you -- when you're contemplating lunch
THE COURT: Let's go on for another like 15 minutes.
MS. JOHNSON: Okay. That's perfect.
THE COURT: Perfect.
MS. JOHNSON: Ms. Gavin, could we please go to page 1, and could you please blow up or highlight line item 3. Special Agent Penland, could you please summarize the information contained in line item 3 of Government Exhibit 1402?
DELEASSA PENLAND: This indicates that a meeting occurred from December 11, 2009 to December 13, 2009; that the location was in New York City at the London Hotel, 151 W. 54th Street, New York, New York. The individuals that attended the meeting would have been Sean Combs, Casandra Ventura, and Jules Theodore, a/k/a Jules. Also, we have flight records pertaining to Jules Theodore and Casandra Ventura relating to that meeting.
MS. GERAGOS: Objection to the characterization.
THE COURT: Do we need a sidebar briefly?
MS. GERAGOS: I think so.
THE COURT: All right.
(Continued on next page)
(At the sidebar)
MS. GERAGOS: My objection, your Honor, is to her characterization of those who attended that meeting. I would ask that the witness just say what the records show rather than who attended what. She has no personal knowledge. She has reviewed records, of course, but I think that's just her language in terms of who attended
THE COURT: That's a fair objection. I don't there is any issue with that.
MS. JOHNSON: That's fine. I already asked some questions to that point, and I'm happy to clarify that those names are based on the records that were reviewed.
MS. GERAGOS: That would make me feel better.
MS. COMEY: It might be helpful to come up with shorthand, otherwise, it would take a very, very long time. So maybe if Ms. Johnson could lay a foundation that when she says attended what she means is record suggests that they were in the location at the time, but she does not for sure absent the video. The records reflects that the people were at or around the location at a time, but she does not know absent video footage. I think that might save us time would be my suggestion.
MS. GERAGOS: That's fine with us.
MR. DRISCOLL: Your Honor, our objection is also to the characterization that certain travel records are related to the meetings.
THE COURT: And on what basis?
MR. DRISCOLL: On the basis that she doesn't have personal knowledge as to whether the travel was actually for purposes of attending the meeting.
THE COURT: She just has the records?
MR. DRISCOLL: Yes.
THE COURT: You wouldn't have an objection to phrasing the questions and hopefully eliciting answers that indicate that the records correspond to the dates reflected in the chart?
MR. DRISCOLL: Right.
THE COURT: Let's just say it that way.
MS. COMEY: Again, your Honor, I think the shorthand could be used to say when you say related, do you mean they correspond by date? Going forward, when you say related, do you mean they correspond by date, and that way we can move this along.
THE COURT: Right. That makes sense.
MS. GERAGOS: Thank you.
(Continued on next page)
(In open court)
THE COURT: Ms. Johnson.
MS. JOHNSON: Thank you, your Honor.
BY MS. JOHNSON:
MS. JOHNSON: Special Agent Penland, I just want to clarify one thing related to the names that you described in line item 3. When you said "attended the meeting," are you referring to your review of the exhibits listed in that column?
DELEASSA PENLAND: Yes.
MS. JOHNSON: And when you say "attended," are you referring to the fact that those exhibits contained those names and suggest that those people might have been present?
DELEASSA PENLAND: Yes.
MS. JOHNSON: And as you testified to previously, absent a video, you are not certain whether any individual was actually present at that date and location, is that right?
DELEASSA PENLAND: That's correct.
MS. JOHNSON: So going forward, if you say "attended" in relation to the names, is that what you will be meaning?
DELEASSA PENLAND: Yes.
MS. JOHNSON: And then on the flight records column, you mentioned that the flights are related to the meeting. Do you remember that testimony?
DELEASSA PENLAND: Yes.
MS. JOHNSON: When you say "related to," what are you referring to?
DELEASSA PENLAND: Meaning that the travel would have allowed the person to be able to attend that meeting. They would be in the town where the meeting occurred.
MS. JOHNSON: So, again, that is based on your review of the records cited in the flight records column, is that right?
DELEASSA PENLAND: Yes.
MS. JOHNSON: And going forward, when you say "related to," is that what you will be referring to, that those records indicate the person was in the city at that date and time?
DELEASSA PENLAND: Yes.
MS. JOHNSON: So now I'd like to focus on some of the underlying records starting on the date column of line item 3. Is Government Exhibit 3A-107 one of the records that's cited?
DELEASSA PENLAND: It is.
MS. JOHNSON: Ms. Gavin, could you please take this down and pull up Government Exhibit 3A-107?
MS. JOHNSON: Special Agent Penland, what kind of communication is Government Exhibit 3A-107
DELEASSA PENLAND: These are text messages.
MS. JOHNSON: Were you able to determine whose account or device these text messages came from?
DELEASSA PENLAND: Yes.
MS. JOHNSON: How were you able to determine that?
DELEASSA PENLAND: By a stipulation that I reviewed.
MS. JOHNSON: Ms. Gavin, can you please pull up next to this exhibit Government Exhibit 1308. Could you zoom in on paragraph 1 of Government Exhibit 1308, which I'll read into the record and it says: Government Exhibit 3A-107 are communications from an electronic device for which Sean Combs is the device owner. You can take 1308 down now, Ms. Gavin.
MS. JOHNSON: And looking back at Government Exhibit 3A-107, focusing on the top, who are the participants in this chat?
DELEASSA PENLAND: Jules and Sean Combs.
MS. JOHNSON: And whose messages are aligned to the left side of the chat?
DELEASSA PENLAND: Jules.
MS. JOHNSON: And whose messages are aligned to the right side of the chat?
DELEASSA PENLAND: Sean Combs.
MS. JOHNSON: Ms. Gavin, can we please move to page 8 of Government Exhibit 3A-107. Could you please zoom in on the bottom half of the screen?
MS. JOHNSON: Special Agent Penland, directing your attention to the top of the zoom, what is the date in the middle of the page?
DELEASSA PENLAND: December 7, 2009.
MS. JOHNSON: If you will read the messages from Jules, I'll read the messages from Mr. Combs.
DELEASSA PENLAND: I will have to cancel some parties, but I still have same traveling alone issue.
MS. JOHNSON: LOL.
DELEASSA PENLAND: LOL. Sorry. I'd have to bring her.
MS. JOHNSON: Call when you can.
MS. JOHNSON: Can you go to the next page, Ms. Gavin.
DELEASSA PENLAND: Just tried to call you. Can you shoot me a text just saying you guys will be somewhere else this weekend, so I can show her.
MS. JOHNSON: I don't understand. Ima call you.
DELEASSA PENLAND: Okay. I'll explain.
MS. JOHNSON: Just pausing you there before you read the next message, what is the timestamp of the message "okay, I'll explain"?
DELEASSA PENLAND: 12:53 a.m.
MS. JOHNSON: If you could continue reading the Jules messages.
DELEASSA PENLAND: Hey, it's Jules. Just wondering if you guys will be at your New York promotion event this weekend.
MS. JOHNSON: No, we're not. She's in London. And I have to be in Chicago for a show. So no, sorry about that. Man, they got me working too much man. How are you?
DELEASSA PENLAND: Good. Maybe we can all hang out again sometime. Take care.
MS. JOHNSON: Peace. Before you move on, Special Agent Penland, can you read the timestamp associated with that last message peace?
DELEASSA PENLAND: 1:08 a.m.
MS. JOHNSON: Ms. Gavin, can you please go to page 11 now? I'm sorry, Ms. Gavin, could you go to page 10?
MS. JOHNSON: Special Agent Penland, if you could continue reading the Jules messages.
DELEASSA PENLAND: It worked. Just leave me with voice mails. I'm avail fri through Sunday. Whatever flights are fine. I don't need a reply tonight. She's home now. Know what day I will come yet?
MS. JOHNSON: Yes, Friday like 4:00 p.m. or YYOU can come on red eye on Friday. Party is going to be sat in morning like 7:00 a.m. so it's up to you.
DELEASSA PENLAND: Friday at 4 is good.
MS. JOHNSON: Okay. Doing now.
MS. JOHNSON: And now, Ms. Gavin, if you could please go to page 11 of Government Exhibit 3A-107 and zoom in on that message.
MS. JOHNSON: Special Agent Penland, what is the substance of the information contained in this text message from Mr. Combs?
DELEASSA PENLAND: It appears to be a flight itinerary.
MS. JOHNSON: And on what day is this message sent?
DELEASSA PENLAND: December 9, 2009.
MS. JOHNSON: What is the name associated with the flight itinerary?
DELEASSA PENLAND: Jules Theodore.
MS. JOHNSON: What day is the departure?
DELEASSA PENLAND: December 11, 2009.
MS. JOHNSON: And what day is the return flight?
DELEASSA PENLAND: December 13, 2009.
MS. JOHNSON: And what city is the flight traveling between?
DELEASSA PENLAND: Los Angeles, California - New York, Kennedy.
MS. JOHNSON: Directing your attention to the line that says 11 December '09, what day of the week was December 11, '09?
DELEASSA PENLAND: Friday.
MS. JOHNSON: And then directing your attention to the line that starts 13 December, '09. What day of the week was that?
DELEASSA PENLAND: Sunday.
MS. JOHNSON: And directing your attention to the very middle of the message, next to SLS pick up. Can you please read that line?
DELEASSA PENLAND: SLS pick up inside baggage claim to London Hotel.
MS. JOHNSON: Let's take that down and pull back up Government Exhibit 1402 at row 3.
MS. JOHNSON: So we just looked at the first exhibit cited in the date column of row 3. Are there two other exhibits cited?
DELEASSA PENLAND: Yes.
MS. JOHNSON: And does the Government Exhibit 3A-107 that we just looked at, is that also cited in other columns of this chart?
DELEASSA PENLAND: It is.
MS. JOHNSON: Which other columns is that cited in?
DELEASSA PENLAND: The city location, the location hotel address, as well as names and flight records.
MS. JOHNSON: Which names is that associated with?
DELEASSA PENLAND: Sean Combs and Jules Theodore.
MS. JOHNSON: So let's turn next to the other two documents cited in the date column of row 3. Ms. Gavin, could you please pull back up Government Exhibit 3A-107 at page 11 side by side with Government Exhibit 3A-112.
MS. JOHNSON: Special Agent Penland, how do these two documents compare?
DELEASSA PENLAND: They are the exact same flight itinerary.
MS. JOHNSON: You can take down Government Exhibit 3A-107. Were you able to determine where the record located at 3A-112 came from? A. Yes.
MS. JOHNSON: How did you do that?
DELEASSA PENLAND: Based on the stipulation.
MS. JOHNSON: Ms. Gavin, can you please pull up Government Exhibit 1302 page 1 next to Government Exhibit 3A-112? And if you could zoom in on paragraph 1 which reads -- I'll only cite the pertinent exhibits. Government Exhibit 3A-109 and 3A-112 are true and accurate records from Combs Global. You can take that down. When we looked at 1402, was Government Exhibit 3A-109 also cited in the dates column? A. Yes.
MS. JOHNSON: Is that also listed in the stipulation as a Combs Global record?
DELEASSA PENLAND: Yes.
MS. JOHNSON: Ms. Gavin, can you please pull up Government Exhibit 3A-109.
MS. JOHNSON: I'd like to focus first on the bottom half of Government Exhibit 3A-109. What does this appear to be?
DELEASSA PENLAND: An email.
MS. JOHNSON: And who sent the email?
DELEASSA PENLAND: Sean Combs.
MS. JOHNSON: Who was the email sent to?
DELEASSA PENLAND: Toni Bias.
MS. JOHNSON: What was the date the email was sent?
DELEASSA PENLAND: December 8, 2009.
MS. JOHNSON: Could you please read the subject line and contents of the email?
DELEASSA PENLAND: Hey, I need a FLT booked for Friday 4:00 p.m. or 3:00 p.m. from LA to NYC, reg room at London Hotel under Jules Theodore, ASAP. Let me know when it's done PLS.
MS. JOHNSON: If you can take that zoom down, Ms. Gavin and, if you could please zoom in on the top half of the document. And we will walk through this from the top to the bottom.
MS. JOHNSON: The first few lines at the top, what does that appear to reflect?
DELEASSA PENLAND: A flight itinerary.
MS. JOHNSON: And how, if at all, does this flight itinerary relate to the other two flight itineraries we just looked at?
DELEASSA PENLAND: It's the same.
MS. JOHNSON: What are the cities that the travel is between?
DELEASSA PENLAND: Los Angeles, California and New York, New York.
MS. JOHNSON: Moving down under hotel info, what is reflected under hotel info?
DELEASSA PENLAND: This is a confirmation at the London Hotel.
MS. JOHNSON: And where is the London Hotel located?
DELEASSA PENLAND: New York, New York.
MS. JOHNSON: What are the dates of reservation for this confirmation number?
DELEASSA PENLAND: December 11 to December 14.
MS. JOHNSON: Whose signature block is under this communication?
DELEASSA PENLAND: Toni Bias.
MS. JOHNSON: What, according to this signature block, is Ms. Bias' title?
DELEASSA PENLAND: Personal finance director, Sean Combs' executive office.
MS. JOHNSON: You can take that down now, Ms. Gavin. If you can pull back up the chart at Government Exhibit 1402, line 3.
MS. JOHNSON: So focusing on the first three columns, we just reviewed 3A-1078, 3A-109 and 3A-112, are those all cited in the first three columns?
DELEASSA PENLAND: Yes.
MS. JOHNSON: Can you explain to the jury how the three exhibits we just looked at relate to the first three columns?
DELEASSA PENLAND: Based on the conversation that we saw described, as well as the flight travel records, it appears that a meeting took place between December 11, 2009 to December 13, 2009 in New York City at the London Hotel. And based on those documents, it appears that Sean Combs and Jules Theodore would have attended that meeting.
MS. GERAGOS: Objection to the characterization.
THE COURT: All right. Hold on for one second. Let's do this. The jury should disregard the witness last answer. Ms. Johnson can we get a fresh question?
MS. JOHNSON: Just to clarify are you striking the answer?
THE COURT: I'm going to strike the answer. You can re-ask the question. Let's try to avoid the objection based on what we discussed at sidebar.
MS. JOHNSON: Special Agent Penland, focusing your attention on the first three columns: Date, location, and city, what Government Exhibits are cited as sources for those columns?
DELEASSA PENLAND: 3A-107, 3A-109 and 3A-112.
MS. JOHNSON: Based on your review of those cited sources, how did you confirm the accuracy of the other information in those columns?
DELEASSA PENLAND: Based on those sources, I was able to verify that those dates were the dates that the potential meeting took place in New York City at the London Hotel.
MS. JOHNSON: And focusing on the next column, hotel reservation, is there any entry in the hotel reservation, I'm sorry, reservation name column?
DELEASSA PENLAND: There is not.
MS. JOHNSON: Were you provided with any hotel records that corresponded with December 11, 2009 to December 13, 2009 other than what we've already looked at?
MS. JOHNSON: Based only your experience as a law enforcement officer in other cases, have you tried obtain records from businesses in the course of your job?
DELEASSA PENLAND: I have.
MS. JOHNSON: How, if at all, do document retention policies affect your ability to obtain records?
DELEASSA PENLAND: It affects my ability because if a company does not retain the records, I'm unable to retrieve them from the company. Companies have a wide range of retention periods, anywhere from 30 days to sometimes ten years, so it all depends on that particular company.
MS. JOHNSON: And approximately how many years ago was December 11 to December 13, 2009?
DELEASSA PENLAND: Approximately 15 years.