MS. JOHNSON: Your Honor, now might be a good time for the lunch break.
THE COURT: Very good we'll take a break. We will come back at 1:30. Thank you members of the jury. As always, do not discuss anything about the case with each other. We'll see you back here at 1:30. All rise.
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(Jury not present)
THE COURT: Thank you, Ms. Penland. We'll see you back here at 1:30.
(Witness not present)
THE COURT: Ms. Smyser, is this an appropriate time to take care of the issue relating to Mr. Paul or would you prefer to do that at a later time?
MS. SLAVIK: Your Honor, I'll be handling the direct examination of Mr. Paul. I think it makes more sense to take care of that tomorrow morning, as Mr. Paul is not in the building at the moment.
THE COURT: Okay. That would make a lot of sense. And then who do we have left after Agent Penland?
MS. COMEY: After Agent Penland is Brendan Paul, AND then Special Agent Cerciello, and then I think we will be ready to rest after Agent Cerciello, your Honor.
THE COURT: Do we anticipating Agent Penland's testimony to take the rest of the day?
MS. COMEY: Certainly, your Honor. I think we would suggest breaking at 3:00. I suspect she will still be on the stand tomorrow morning. I suspect Brendan Paul will take most of the day tomorrow, and I suspect Agent Cerciello will take up most of the day Wednesday, which will work out well because I think the parties may have issues to tee up for your Honor with respect to that last witness who is our final summary witness tomorrow, so I think it might work out well to end early today and tomorrow and get him on and off the stand Wednesday so that we can work out any disputes about those charts before Wednesday.
THE COURT: Very good. Let me turn to Mr. Agnifilo.
MR. AGNIFILO: Yes, Judge.
THE COURT: Who do we have waiting in the wings as the defense case starts up, if we are going to proceed with the defense case, as Ms. Shapiro reminded us, as we have motions.
MR. AGNIFILO: She reminded all of us. So I notified the government last evening at 5:00 of the first witnesses. So Friday is 9:00 to 1:00? I know I've asked that before, but is that --
THE COURT: That's correct.
MR. AGNIFILO: We have three potential witnesses lined up for Friday.
THE COURT: Who are they?
MR. AGNIFILO: Vashta Dunlap, Stefan Vandewalle and a potential summary witness who is a paralegal in our office.
THE COURT: Very good.
MR. AGNIFILO: Yes, Judge.
MS. COMEY: Your Honor, if I may just note, as to the summary witness, we have not received any draft summary charts or any exhibits whatsoever. So if there are any, we'd ask that they be produced immediately. Our position is they should have been produced quite awhile ago, but at the very least, we ask that they be produced today.
MS. GERAGOS: Thank you, your Honor. That's not accurate. We've produced all of the exhibits and have been conferring with Ms. Johnson on these for awhile now. And there's going to be nothing other than what we have been conferring on with Ms. Johnson. It's her position that these should come in on the defense case, not on the prosecution case. So because of the government's position with respect to these exhibits, which are just additional exhibits between Ms. Ventura -- well not additional. Exhibits that we had produced during Ms. Ventura's examination between Ms. Ventura and Mr. Combs. We are conferring with her about those. We are shortening them. We are trying to reduce any disputes we would have to bring to the Court on these exhibits. It is the government's position we would have to put these in on our case, and so we just want to put them in through somebody. I think Mr. Agnifilo used the term summary witness, but it's really just to have somebody read the exhibits that we have already been discussing and that the government has had in their possession for about four to five weeks.
MS. COMEY: I apologize. I was unclear. I meant we hadn't received any summary charts. I do know the exhibits that Ms. Geragos is referencing, and she is right, she has produced those to us, and she Ms. Johnson is conferring with her about those. I meant if there are any charts that that witness plans to put in, we don't have them.
THE COURT: Ms. Geragos, are there going to be charts?
MS. GERAGOS: We are trying to still determine that after they -- well, after this witness and after we finalize the chart for the special agent who is testifying last will do. I don't expect it's going to be anything different than what we're already looking at right now.
THE COURT: That is what I was going to say because in response to some of the defense's objections we made significant modifications to the summary charts put in by the government, and so I assume that the defense summary charts will correspond to the form in which we've put in the government summary charts. That is the only thing I was going to put on your radar.
MS. GERAGOS: That's right. I think once we've come to an agreement on these exhibits -- and I will come back to your Honor if this changes, but we would just add some defense exhibits to the charts that already exist. So we just have to come to agreement first. We are really trying to do that. We are working together to get that done, and then if we add -- you know, add exhibits to charts that already exist, once we do that, we will produce those to the government immediately.
THE COURT: Very good. In terms of verdict forms, I don't believe I have those. I may have missed it, but I have the requests to charge. I do not have proposed verdict forms. Is that correct or did I miss it?
MS. COMEY: That's correct, your Honor. What feels like a lifetime ago, I think we all agreed that we could kick that can down the road, but maybe it is time for us to provide your Honor with proposed verdict forms.
THE COURT: How much time do the parties need to get me those? Because I'd like to get you -- the way I usually do this is I will give you back the proposed request -- the proposed charge. I'd also like to get you the proposed verdict form, and that will kick off the process of going back and forth to make sure I've addressed both sides' objections. How much time would the government need?
MS. COMEY: I don't think we need much time, your Honor. I think if we have a day, we should be able to get ours over to you.
THE COURT: Ms. Geragos, does that sound good on your end, or whoever?
MS. SHAPIRO: That's fine, your Honor. We may also have a few additional requests to charge. We'll try to get those to the Court soon.
THE COURT: So does it make sense, Ms. Shapiro, sometime tomorrow? It can be late, but that way--
MS. SHAPIRO: Sure, as long as there's no time.
THE COURT: This is the initial proposal. If things change, you can obviously augment then or modify them in any way.
MS. COMEY: Your Honor, Ms. Shapiro's comment about additional requests to charge reminds me, we would like an opportunity to respond to the new requests to charge that Ms. Shapiro filed a few days ago, I think, if that's all right with your Honor.
THE COURT: Of course.
MS. SHAPIRO: Just to be clear, we assumed -- we obviously, not surprisingly, object to a lot of the government's requests to charge, but we figured it made more sense to wait to see the Court's proposal and react to that.
THE COURT: What I'm working on is to come back with a proposed charge, and at that the point, you will have full opportunity to make any objections to anything that's in there or anything that the other side wants to put in there.
MS. SHAPIRO: Okay. Thanks.
THE COURT: Very good. In terms of the defense's experts, whenever we get to that point, one thing that was helpful with Dr. Hughes is that I believe it was the defense had given me a redline disclosure indicating from their perspective what the Daubert ruling had been and which part of the testimony was permissible. Can I ask to the government to do that as well? Because when the defense did that, it teed up a discussion so we were pretty certain as to what the boundaries were. I think it might be helpful as to also do that as to the defense.
MS. COMEY: Yes, your Honor. I think that makes good sense. We will work on that.
THE COURT: Very good. Anything else from the government before we take our lunch break?
MS. COMEY: No. Thank you, your Honor.
THE COURT: Anything Mr. Agnifilo or Ms. Shapiro.
MS. SHAPIRO: Just two quick things. With regard to the point about Dr. Bardey, we will also be providing the government with very, very short supplemental disclosure that is just a reaction to Dr. Hughes' actual testimony. So just to be clear on that. And then I did want to raise one issue relating to the issue that came up at the sidebar, which we -- the other lawyers were not present for, and the real-time wasn't working, so we're not quite sure exactly what your Honor ruled, but I just wanted to put on the record that we object to any questions and answers elicited from this witness in which the witness is inferring things like who was actually present in a hotel room based on flight records or hotel records. Our position is that that is precisely what is kind of out of bounds for this kind of summary testimony or summary exhibits. That's the job of the jury. That's what people can argue in summation. But a witness with no personal knowledge as to the events depicted on the chart shouldn't be permitted even to say probably or possibly or whatever word was used at the end before we broke. So we would respectfully ask the Court direct the government to stay away from that and just stick to what was in these exhibits, you know, does the chart accurately reflect the information in the exhibits, and, you know, if appropriate meeting, whatever is in the chart.
THE COURT: I thought that's what we had addressed and resolved at the sidebar. As to the last question, I struck the answer and then had the question re-asked, and there was no objection to that question. So what is it in the questioning and answers from what we just saw that is problematic? Because Ms. Johnson clarified the limited scope of this witness' testimony. I think just as a matter of like basic human communication, it is hard to address what we're talking about without having some kind of -- you need words to explain what the charts are showing. So what is it in particular that you have an objection to?
MS. SHAPIRO: I have to read the transcript to look at the question. I think she said something like probably or -- she said something.
THE COURT: You're saying that this witness does not actually need to refer to a meeting at all because --
MS. SHAPIRO: Exactly.
THE COURT: Because she doesn't know what happened.
MS. SHAPIRO: Right.
THE COURT: All she has is the communications, and so she should just be saying that I see the communications, and the communications are reflected here in this chart because they're in the same time period.
MS. SHAPIRO: Exactly, your Honor. That's the point. We can't find it, but even in that last question and answer which wasn't as bad. I'll say as the one when your Honor sustained the answer and struck it, there was some suggestion that she used the word meeting I think or I don't know maybe -- I can't find the transcript, but she said something that was going beyond what your Honor was describing is appropriate.
MS. COMEY: Your Honor, if I may. I think the human language may become very difficult to work through this witness's testimony. Ms. Johnson was very careful in her introduction to this witness's testimony not to mislead this jury into thinking that she has personal knowledge. She has caveated this testimony quite clearly. I don't think we have run afoul of any the rulings around the summary chart. I think the reference to meeting, again, Ms. Johnson could preface it once again when we come back from the lunch break, it's just the word that we need to use for what appears from the faces of the documents. We have travel records suggesting people are in a particular city, hotel records suggesting that there was a hotel reservation during that same time, and then communication records suggesting that certain people may have met. This witness is not suggesting that they in fact met; that she knows they met; doesn't know if they in fact met. She has already said she doesn't know if they met. She is just trying to explain what's in these records, and I thin we need to be able to use some colloquial language in order to make the testimony useful to the jury and comprehensible to the jury. Perhaps Ms. Johnson could caveat again our attempt -- our intent is not to mislead the jury, but instead move through this as efficiently as we can.
THE COURT: Well, I think that there is a different objection that is being raised. You just mentioned the suggestions of things that may have happened, but this witness is not competent to testify as to those suggestions, as I think you recognize. So what Ms. Shapiro is saying is that, like Ms. Sankar -- Ms. Sankar came in, and she just said these are communications. I reviewed the communications. They're here in this chart. That's literally all she said. So Ms. Shapiro is suggesting that Agent Penland should do the same thing. These are records. She looked at the records. The chart accurately reflects those records. The time period is the same. I don't think there's any objection to that. But beyond that, the suggestions are really for argument in closing now that these are in evidence.
MS. COMEY: Yes, but, your Honor, I think what Agent Penland testified her role was with this chart was to actually pick and choose among text messages and people to include. I think she testified that she excluded people whose communications suggested that they were planning to come but did not come, or suggested they might end up meeting but there was no confirmation within the text messages that they attended a meeting, and that she in fact looked to the substance of the communications to decide who would be included in this chart. So this is a different chart, and this witness undertook a slightly different task of doing a little bit of reviewing of the substance of the communications in order to discern what names should go into the chart or not. So it's not as simple as just she looked at the records, and then if the record was during the timeline, she put it in the chart. It was she looked at the record, and if the records were in the timeline and the substance suggested that it is possible that these people may have met, she included them in the chart. And she is not saying they did meet. She is not going to testify that they did meet. She would testify it is entirely possible these people never met. She only included message that both fell in the date range and the substance of which suggested they might have met.
THE COURT: So just to put a finer point on it, based only her review of the messages, she was able to discern the time period. She was able to discern the location in terms of the city, and then she was able to discern based on her review who was at the location, more specifically if it's a hotel, a hotel for instance.
MS. COMEY: That actually goes farther, your Honor, than she would say. She would say may have been at the location. She will not testify that they were at the location. She will testify they may have been at the location.
THE COURT: Ms. Shapiro, is there an objection to that? Because without saying meeting --
MS. SHAPIRO: Yes.
THE COURT: If Agent Penland were to say that she was at -- she used the information to determine who was -- may have been at a location, whether it's New York, more generally, just to give an example or a specific hotel, based on communications, would that still be objectionable in your view?
MS. SHAPIRO: Yes, your Honor, because I think it still poses the problem that when you have the agent who has no personal knowledge about anything, what the agent is doing is trying to connect up the exhibits in a way that is essentially making an argument that the jury can draw an inference that the people were at the meeting, and that is not appropriate for a summary witness. I mean, this is -- it's the same problem, you know, having her say, well, they may have been at the meeting doesn't solve the problem because there's nothing from the documents on the chart about a meeting. It's about hotel records, flight records, and, you know, it's --
THE COURT: Let me make sure I understand. This is what I think the objection is really. I think that Ms. Shapiro is saying we have the summary chart, which we went back and forth over and ultimately this is the final version we got to. I think what Ms. Shapiro is saying is that goes into evidence, and perhaps Agent Penland needs to explain how she put it together just, right? That's what the summary witness is really doing. Other than that, she has nothing to testify about, so she shouldn't be testifying about what the -- even if it's potentially or may or anything else, she has nothing to say about any of that stuff. Even if it's something very simple like these people were there for a meeting, is that fair, Ms. Shapiro?
MS. SHAPIRO: Yes, your Honor, that's exactly correct.
THE COURT: The government may spend a lot of time going through the summary chart because they want to present what's in the chart to the jury. But other than, there's really nothing more for Agent Penland to really testify about.
MS. COMEY: Your Honor, just to clarify, Ms. Shapiro listed out the kinds of records, but she didn't get to text messages. And when Agent Penland explains why certain text messages are cited in this chart, the reason is because the content of the text messages, the words on the page appeared consistent with people gathering in a place, meeting, whatever word you want to use, the point is that she reviewed messages.
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THE COURT: But why is Agent Penland, like, her thought processes about why she chose particular things, like, how does that even get into evidence? On what basis?
MS. COMEY: On the basis that she's allowed to lay the foundation for how this chart was put together and explain to the jury why certain messages were included in the chart and others were not included in the chart, which I would point out was subject of cross-examination for the last witness.
THE COURT: Ms. Sankar didn't do any -- she didn't choose the text messages she put in. And by the way, wouldn't the selection of particular texts and particular people be something that the case team put together with this agent?
MS. COMEY: Yes, your Honor. Yes, your Honor, but I think this witness has explained already that this is a different kind of chart than the last witness put together, and it's different in that this agent, who is reviewing the messages, actually said you need to take these messages out because they don't, on their face, suggest that these people were actually meeting. That is what this agent did. She only kept messages in, when she was checking the accuracy of the chart, where the face of the messages appear, on a common reading, on their face, to suggest a meeting. And I think we just saw an example where Mr. Combs and Mr. Theodore were having an email communication, in which, on the plain face of the messages, they were discussing being in the same place at the same time. And that's the face of the messages. And otherwise, if we can't -- if the answer is that we have to read every single message and she can't characterize them, then this is no longer a useful summary chart, because what we're going to have to do is pull up every single message and have her just read every single message instead of summarizing for the jury and saying those are text messages in which they appear to be discussing meeting in the same location. If she can't do that, then we're going to have to just go through and read every single message, and the utility of this chart and the efficiency of this chart is lessened significantly. We are not trying to mislead this jury. We are not trying to be argumentative, your Honor. We're really not. We're trying to be efficient.
THE COURT: I don't think that's the objection. I really don't think that's the objection.
MS. COMEY: I think it is, your Honor.
THE COURT: It's not.
MS. SHAPIRO: No, it's not.
THE COURT: Hold on.
MS. SHAPIRO: That's not. It's exactly what the judge is saying. We can't have a witness who is telling the jury what inferences to draw because that's what -- those are the inferences the witness drew in putting the chart together.
MS. COMEY: Your Honor, we're not trying to have the witness tell the jury what inferences to draw. We're trying to have the witness explain why the particular exhibit is in the chart.
MS. SHAPIRO: That's the same thing.
THE COURT: I think the why -- and that's what I'm trying to understand, like, how is the "why" admissible evidence that can be presented through testimony of this witness when this witness has no personal knowledge of anything in the case? So her selection process and the selection process used by the government in putting these in, how does that get into evidence? Because it obviously bears a suggestion of what the government believes is the relevance of one communication versus another. And so to give you an example, if Ms. Sankar had come up on the stand and had said, well, I chose these text messages because they showed potential involvement in a hotel night by Ms. Khorram, right, and I took out and I did not consider those text messages that did not bear that suggestion, there would be the same objection. And I don't know that the government would have a good reason why Ms. Sankar should be able to testify as to those matters. All that the defense is saying is the same thing applies here. And in terms of the utility of the witness, I understood in these circumstances the utility of the summary witness is she put together the chart and it is based on accurate, an accurate depiction or summary of other documents. And so now that they're in a chart form, the witness is able to walk through each item on the chart to show that the dates correspond, the locations correspond, etc. And then from that, in closing argument, you or one of your colleagues will argue that those events correspond to the events that are at issue in this case and that they showed that people met and all the things that Ms. Shapiro has identified it would be improper for Agent Penland to talk about. She would not object that you can definitely do that in closing, right?
MS. SHAPIRO: Correct.
THE COURT: That's the only objection that's being raised, but the utility of the witness is still there because otherwise all you have is the charts in evidence and the jury would have never seen them.
MS. COMEY: So I understand the ground rules then, is Agent Penland allowed to say there are text messages in which there are references to a location? Is she allowed to say that?
THE COURT: Of course. There's no objection, right.
MS. SHAPIRO: If it's factual.
THE COURT: Yeah, I think that's fine.
MS. COMEY: All right. We will go with that then, your Honor.
THE COURT: All right. Very good. Anything further from the defense?
MS. SHAPIRO: No.
THE COURT: All right. Very good. We'll be back at -- I'll give you a little bit of time for lunch, so let's say 1:45.
(Luncheon recess)
AFTERNOON SESSION 1:45 p.m.
THE COURT: Let's get started. Let's get Agent Penland back.
(Jury present)
THE COURT: Please be seated. Ms. Johnson, you may proceed when ready.
MS. JOHNSON: Thank you, your Honor. Special Agent Penland -- actually, before I ask you a question, Ms. Gavin, can you please pull up Government Exhibit 1402 again.