1.Napue and Juror-Excusal Rulings

THE COURT: Welcome. Good morning. Please be seated. I hope everyone had a great weekend. First issue that I neglected to address last Friday is the defense's request for a Napue instruction relating to the testimony of Ms. Bongolan, and for the same reasons that the Court denied the application for a mistrial, the application for a Napue instruction is denied. As the government noted in its letter relating to the mistrial application, in this circuit, to make a Napue claim, the defendant must show that, one, the witness actually committed perjury; two, the alleged perjury was material; three, the government knew or should have known of the perjury at the time of the trial; and four, the perjured testimony remained undisclosed during trial. United States v. Cromitie, 727 F.3d 194, 221 (2d Cir. 2013). As the government noted and as the Court noted, during the cross-examination the inconsistency in Ms.

Bongolan's testimony concerning the date of the alleged incident was laid bare and was one of the primary subjects of cross-examination in addition to the other alleged inconsistencies in Ms. Bongolan's testimony. Further, to the extent that there was a separate inconsistency regarding whether Ms. Ventura had actually viewed the incident in question, that was also the subject of cross-examination, and in fact, based on the cross-examination of Ms. Bongolan, an exhibit was introduced by the government that the defense actually used in the first instance to establish that Ms. Ventura was not credibly testifying when she indicated that she had viewed the event in question. So all of that was laid bare, and so the standard that would be required for a Napue instruction has not been satisfied on that ground alone.

In addition, as the Court had previously noted, there is an alternative explanation for the inconsistent testimony; namely, that the government had overlooked the records produced that established or indicated that Mr. Combs was in New York at the time of the alleged incident, as Ms. Bongolan had reported it, and that became the subject of redirect examination. It was raised in cross-examination. And in closing argument, the Court imagines that the defense will focus attention on those subjects that it attacked in cross-examination. As the Court previously noted, that is the adversarial process at work. It is not grounds for a mistrial, as the Court previously noted. Neither is it grounds for the kind of instruction that the defense has asked for, which requests that the Court instruct the jury that the government presented perjured testimony. That would be inconsistent with the facts as we have them on the current record.

So for those reasons, the application for a Napue instruction is denied. Next, let's briefly discuss juror No. 6. First, I hope the parties understand that the reason we have discussed this issue several times over the past few days is that I understand its importance and I want to make sure I've considered all the arguments from both sides that have been presented. This amount of scrutiny is not required. As the Court previously observed, the Second Circuit, in United States v. Fazio, confirmed that removal of a juror is the prerogative of the Court and does not require the consent of any party. Indeed, the court noted in Fazio, the Federal Rules of Criminal Procedure do not require any inquiry prior to the dismissal of a juror. 770 F.3d 160, 169 (2d Cir. 2014). With that, last Friday, both in the morning and in the afternoon, we discussed whether there was cause to dismiss juror No. 6.

In the morning, I expressed the preliminary view that further inquiry of the juror would be appropriate because the record, as it stood, was insufficient to justify removing the juror. The government's position was that the record of the juror's conflicting answers during voir dire and from last week's robing room discussion sufficed for removal. In their view, the inconsistencies raised serious questions as to the juror's candor and his basic qualifications to serve. The government did not object at that time to further inquiry of the juror if the Court deemed it necessary, but the defense indicated that further questioning of the juror would have a negative impact on the juror that might impact the deliberations going forward. That's from the transcript at page 6031. I didn't reach a decision at that time but rather took time to consider both sides' submissions and arguments.

THE COURT: Now, the defense observes, in its June 15 letter, that in the morning on Friday, I offered that there could be ways to reconcile the juror's testimony and that the record, as I saw it at that time, would not be enough for dismissal. I then did what judges are supposed to do. I thought about what the parties had said, the authorities they raised and I went back to look at the record closely to make sure that I was making the right call. Over the course of the day, during breaks in the proceeding, I re-reviewed the transcript in jury selection and from last week's robing room discussion as well as the authority cited in the parties' submissions. The issue was further addressed at the conclusion of the day. As I indicated at that time, after further review, there were clear inconsistencies between the juror's voir dire answers, given under oath, and the juror's answers during the robing room discussion and further inconsistencies within the robing room discussion itself.

Taking these all together and considering the arguments laid out in the government's June 11, 2025, letter, the record raised serious concerns as to the juror's candor and whether he shaded answers to get on and stay on the jury. These concerns were amplified, given that the subject matter of the inconsistencies -- where the juror has lived and with whom -- go to straightforward issues as to which there should not have been any doubts, and the answers also go to something vital -- the basic qualifications of a juror to serve. To top it off, the inconsistencies and shifting answers on that issue raise questions about the juror's candor as to the numerous other questions asked by the Court in the juror questionnaire and in-person voir dire process, threatening the integrity of the judicial process. On this basis, the Court indicated that juror 6 should be dismissed. While the defense questioned the relevance and importance of the inconsistencies, they didn't deny that they existed.

The defense invited the Court to further question the juror to see if he could explain them, this despite the earlier expressed concerns about chilling the juror. The defense cited a concern with reducing the diversity of the jury by replacing a Black juror with a white one and referenced the Second Circuit's decision in United States v. Slaughter, 110 F.4th 569 (2d Cir. 2024), which raised questions concerning the underrepresentation of Black and Hispanic or Latino jurors on veneers in this district. The Court took the weekend to consider the defense's arguments, and it takes seriously the defense's concerns about race, diversity and the issues raised in Slaughter. Taking into account all the circumstances presented, further inquiry of the juror is inappropriate. Even if this juror had an excuse or explanation for the inconsistencies in the record, that would be yet another set of shifting answers on basic questions about the juror's residence.

This would only heighten the specter that the juror's trying to shade answers in an effort to remain on the jury. In other words, there's nothing the juror could say at this point that would put the genie back in the bottle and repair the damage to his credibility. Further, the Court agrees with the defense that even if the Court were inclined to retain the juror, which could only happen with further questioning, that inquiry would almost certainly have a negative impact on the juror that might impact the deliberations going forward in unpredictable ways, potentially compromising the jury's functioning. As the Court observed on Friday, this is precisely why we have alternate jurors. We are not equipped in this setting to do a forensic investigation into the issues raised. So we have alternate jurors precisely for this kind of situation, to avoid even the appearance that the fair and impartial nature of the process has been undermined.

As to concerns about diversity and Slaughter, as the defense itself noted on Friday, this jury does not raise those concerns. Defense counsel, Mr. Donaldson himself, observed that "this is the first time I can say in this 25 years we have this type of diverse jury in this district and that the process that this Court used for us to get a jury worked and worked wonderfully in that we got a diverse jury." Tr. 6228-29. The defense also agreed, given the discussions that we had on Friday, that there was no intentional discrimination at play in the issue raised as to juror No. 6. Tr. 6229: Now, it may not be intentional. Mr. Donaldson: "It's not. It's clearly not. No one is saying that's what happened." The defense asks this Court to base its decision-making on race, but it would be improper to allow the race of juror No. 6 and the alternate juror to factor into the proper course here at all. The Supreme Court has prohibited precisely that kind of injection of race into the process.

As the court observed in Batson v. Kentucky itself nearly 40 years ago, the defendant has no right to a petit jury composed, in whole or in part, of persons of his own race, because the number of our races and nationalities stands in the way of evolution of such a conception of the demand of equal protection. The court there confirmed a person's race simply is unrelated to his fitness as a juror. Now, the current situation is obviously not governed by Batson, which involved peremptory challenges, but the import of that decision is straightforward. The Court should not -- indeed, cannot -- let race factor into the decision of what to do here. At that point the answer is clear. Juror No. 6 is excused. Pursuant to Federal Rule of Criminal Procedure 24(c)(2)(B)., he will be replaced by the first alternate juror. As to the other accusations against the prosecution lodged in the defense's June 15 letter, there has been no evidence of prosecutorial misconduct brought to the Court's attention.

Zero. To the extent that these accusations are an effort to pressure the Court to make a decision on the juror issues before it based on race, the Court rejects that invitation. If the defense has a specific, good faith application based on any of the issues raised in its letter or anything else, then it should make that application. In each instance in this case where an application for any kind of relief has been raised, this Court has given it close attention and has resolved it -- many times in the defense's favor. But inviting the Court to make a decision based on race would be doing what the Supreme Court for decades has flatly prohibited. As for the separate juror issue that we addressed on Friday, let me say a couple of things. First of all, the issues concerning the two jurors are in no way linked.

The Court will apply the same standards and procedures as to any juror issue that arises, apply nondiscriminatory criteria and the governing standards to determine whether there are grounds for dismissal and proceed based on what the law and facts dictate. Tying these two issues together, urging race to factor into the process and then suggesting that if the outcome isn't in the defense's favor a mistrial is warranted has no basis in law, logic or basic notions of fairness and justice. The government says it does not oppose further questioning of this juror, so at the conclusion of the day, after the remaining jurors have left, we will ask that juror to stay so that I can ask questions that the parties have for me to ask. The parties should meet and confer on that score and furnish to me an agreed set of questions. They should also confer as to the method of questioning, whether we should clear the courtroom and have that questioning occur here or whether the parties agree that the questioning can occur in the robing room. That resolves the issues concerning the two jurors. Are there any further applications relating to any evidentiary issues that will be raised today? Ms. Foster.