UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x UNITED STATES OF AMERICA, v. 24 Cr. 542 (AS) SEAN COMBS, a/k/a "Puff Daddy," a/k/a "P. Diddy," a/k/a "Diddy," a/k/a "PD," a/k/a "Love," Defendant. Trial
New York, N.Y. June 23, 2025 8:35 a.m. Before: HON. ARUN SUBRAMANIAN, District Judge -and a Jury- APPEARANCES JAY CLAYTON Interim United States Attorney for the Southern District of New York BY: MADISON R. SMYSER EMILY A. JOHNSON MAURENE R. COMEY MEREDITH FOSTER MITZI STEINER MARY C. SLAVIK Assistant United States Attorneys APPEARANCES CONTINUED AGNIFILO INTRATER LLP Attorneys for Defendant BY: MARC A. AGNIFILO TENY R. GERAGOS -and- HARRIS TRZASKOMA LLP BY: ANNA M. ESTEVAO -and- SHAPIRO ARATO BACH LLP BY: ALEXANDRA A.E. SHAPIRO JASON A. DRISCOLL -and- XAVIER R. DONALDSON BRIAN STEEL NICOLE WESTMORELAND Also Present: Lucy Gavin Shannon Becker Paralegal Specialists Raymond McLeod, Paralegal
(Trial resumed)
THE COURT: Good morning.
Please be seated.
I did not receive any notification of any issues for this morning, but does either side have any issues to address?
MS. COMEY: I don't believe we have any evidentiary disputes for your Honor.
THE COURT: Great.
MS. GERAGOS: That's correct.
THE COURT: We received the parties' verdict sheets, which are the same, largely, with respect to Counts Two through Five, except the ordering of the jurors' choices and the title for Counts Three and Five. The big difference has to do with the racketeering conspiracy.
And so the defense has proposed a simple instruction that simply says not guilty or guilty and then has the jury fill in the racketeering acts. I don't think it's going to be feasible to have the jury write in the racketeering acts without -- I think that's a recipe for disaster. They need some guidance and structure as to how to make that determination, and so I'm inclined to go with the government's approach to this. But I'm open to an alternative that would be simpler and that the defense might suggest.
So my main issue is just having the jurors without, like, having any -- you know, obviously, they have the instructions, but there's a potential for the jury to be confused and to write in something that would not correspond to one of the charged racketeering acts. That's my concern. So if the defense has a suggestion of how to address that, perhaps in a simpler way than as presented in the government's proposed verdict sheet, I'm all ears. But that's my concern.
MS. SHAPIRO: Thank you, your Honor.
I think what I'd like to do is consult with my colleagues, and we'll get back to the Court.
I just wanted to note, so typically, verdict sheets for substantive RICO charges do list each of the charged predicate acts with a proven, not proven choice.
Typically in this district and in others that I've seen where there's only a RICO conspiracy, there's no indication at all as to what the jury has determined with respect to the racketeering acts. So that part is not even a special verdict form. We thought it might be helpful to have something in the hopefully unlikely event there's ever a sentencing in this case, but I'd like to just consult with my colleagues and consider it. But the ones we've seen in the past, other than a special sentencing factor, which here, seemed unnecessary, and I think the government seems to agree based on their verdict sheet, because we have the two substantive counts so we'll know whether the jury found sex trafficking. But can we just consult amongst ourselves?
THE COURT: Yes, you can definitely consult on that.
On the special sentencing factor, here's my question for you. You're right that substantively there's 100 percent overlap between the sentencing factor and Counts Two and Four. However, at least as it's depicted in the government's verdict sheet, and I think this is right, there is a universe where the jury might say -- you obviously don't think they're going to say guilty on anything, but that they could say guilty on Counts Two and Four. However, we do not believe that to the extent that those things happened they were part of any kind of RICO conspiracy. And so they'd say that the special sentencing factor on the RICO conspiracy charge was not satisfied.
Is that an option, or did I just make that up and it makes no sense? Do you get my --
MS. SHAPIRO: Yeah.
THE COURT: How the government has set it out, it says that the special sentencing factor was that there was sex trafficking in connection with a RICO conspiracy, and that's different than Counts Two and Four. So that's the one --
MS. SHAPIRO: I guess that's right, but I'd like to think about that a little bit.
THE COURT: All right. So that's the second thing.
MS. SHAPIRO: The only other thing I wanted to say about the order is that given that the government has the burden of proof, we think it's more appropriate to put not guilty on the left.
THE COURT: That's fine. That's fine.
And then one last point that relates to the first point, which is -- and I'll hear from both sides, there is -- let's say the jury thought that there were two racketeering acts but that the two racketeering acts were both in the same category, so they were both instances of possession with intent to distribute or prostitution, etc. The government's verdict sheet doesn't designate that, and so I'm just raising that as another concern.
MS. SHAPIRO: Well, that was another reason we thought it was better not to list them out, because the verdict sheet would be way too complicated and really prejudicial to us if, you know, every potential racketeering act was actually listed out as opposed to listing them out by categories. And I know their position has always been that failing to prove it means categories, for instance, and that the enterprise letter is just notice, but I think we need to think about all that.
If the Court feels it's important to list out the racketeering acts, we need to think about what's the best way to do it. But like I said, I mean, in other cases, the other verdict sheets that I've seen in the cases in which only a RICO conspiracy was charged and not a RICO substantive, there's actually no listing of any racketeering acts. The most recent one that I'm aware of is the Archegos case, U.S. v. Bill Hwang, et al. And that one, honestly, didn't have a special sentencing factor. It was a fraud and securities manipulation case, so there was no special sentencing factor, but there were multiple racketeering acts alleged in the verdict, which just says Count One, not guilty, guilty, whatever.
So, but anyway, if we could just get back to the Court, hopefully later today.
THE COURT: To be clear, I haven't looked at this.
When I saw both verdict sheets, my understanding was that both sides wanted the jury to make an explicit finding on the racketeering acts, because the defense had put in this line about what racketeering acts the jury had found. It was only a question of how to elicit that response from the jury. So if you're saying that courts in this district typically haven't even asked that question, then I'll consider that. It just wasn't presented.
MS. SHAPIRO: I understand. But we'll get back to the Court with our final position.
THE COURT: All right.
Ms. Comey.
MS. COMEY: Yes, your Honor.
I just wanted to note that in every RICO conspiracy case I've personally tried in this district and every one I've supervised, there has been a verdict form with these findings. And it's precisely for the reasons that your Honor articulated and that Ms. Shapiro guessed, which is, one, with respect to special sentencing factors, your Honor hit the nail right on the head. I do think that there's a fine difference but a difference between the special sentencing factors and whether they were part of the RICO conspiracy and Counts Two and Four, and so that's why I think we need that finding under Apprendi.
And then with respect to the predicates, Ms. Shapiro is absolutely right. Because this is not a substantive racketeering charge, it is not required that the jury find each predicate, but it is helpful if there is a conviction, both for sentencing and on appeal, if on appeal, any of the predicate acts are found to have been insufficient or there were issues with them, if the jury has checked the box on multiple enough to still uphold the guilty verdict, that that can be very, very helpful with the appellate record. So that's why my office's practice, at least, again, in every case I've handled and supervised, has always had those verdict forms.
I've seen it both ways. I've seen it the way that we proposed, which is just found or not found. I've also seen it where it's proven, not proven. And if proven, is it one or two or more? So those are the options I've seen.
I have never seen what Ms. Shapiro contemplated and did not want for a conspiracy, which is going incident by incident, because I do agree that would be inappropriate in a RICO conspiracy. The reason we didn't propose going with the numbering of one or two or more for each is just because it becomes so unwieldy, given how many predicates there are here. But I have personally and supervised cases where we had boxes to check for whether the government had proven that one act was agreed to or two or more acts were agreed to under each predicate.
THE COURT: Understood.
What you're saying, just so I understand it, is that if you didn't have that, it wouldn't matter because you don't have to have the jury make a finding as to each racketeering act. For instance, if they just checked the inducement to travel for purposes of prostitution and they didn't check anything else, that would be fine, because the assumption would be that they found multiple acts that fell within that category.
MS. COMEY: That's exactly right, your Honor.
And I'll note for the reasons I've said, I think it is prudent to have a verdict form like this for potential future proceedings, but if the defense objects to that and your Honor is inclined not to include it, then our preference would be just a not guilty-guilty option without any sort of open-ended opportunity for the jurors to write on the verdict form; that's a recipe for disaster, in our view.
THE COURT: All right.
Ms. Shapiro.
MS. SHAPIRO: That's fine, your Honor.
I was just going to note -- I'll confer with Ms. Comey about these examples she mentioned. The other one that I'm aware of that's recent is the Ray case, in which the only thing that was mentioned besides the, you know, guilty-not guilty was the special sentencing factor. So I haven't seen any verdict forms along those lines, but we'll see what precedence she has and consult amongst ourselves and advise the Court of our position.
THE COURT: All right. Very good.
So now turning to the schedule, there was some email back and forth, but Ms. Comey, did you have a reaction on how the parties would like to proceed?
Mr. Agnifilo.
MR. AGNIFILO: Yes, Judge. Thank you.
I wanted to add one thing that I think impacts the scheduling. At the end of the day, we're going to agree to the schedule as proposed by the government, if that's agreeable to the Court.
THE COURT: Was there a proposal by the government?
MR. AGNIFILO: I think they wanted to start the summations on Thursday.
THE COURT: On Thursday. I must have missed that.
MR. AGNIFILO: And so there's one issue that I'm absolutely confident we can resolve that's related to prior inconsistent statements of various of the government witnesses. We've been talking with the prosecutors and I think we're going to reach a stipulation.
As your Honor probably saw from time to time, a witness would testify to something. We would say, well, you said something else in a meeting with the prosecutors and agents. And so what we are in the process of doing is isolating those events where the proper foundation has been laid, and I think rather than calling a witness, an agent, someone who was in the room for the statement, I think we can reach agreement by stipulation as to these prior inconsistent statements.
That being said, that is not something that we can do probably by -- we can probably do that, Ms. Comey, maybe by tomorrow or Wednesday. Hopefully by tomorrow. So I think if we bake that into the schedule, it makes sense to have the summations starting on Thursday.
THE COURT: All right. I think you basically said that you would come to an agreement on everything and we would basically start with closings on Thursday.
MR. AGNIFILO: That's what I said.
THE COURT: OK. So if there's any dispute or issue to raise, I'll obviously hear from you.
MS. COMEY: I'll just recap it for your Honor so you don't have to read it, given that we're now in agreement.
I think the proposal was we think Agent Cerciello is unlikely to end today, unfortunately for him. I think we're likely that he'll come back tomorrow morning for a little bit. And then I think what we would propose is that we give the jury a long break so that your Honor can hear the Rule 29 argument and so that Mr. Agnifilo and I can have some time to work out the prior inconsistent statement stipulation he talked about.
And then assuming your Honor denies the Rule 29, we would then have the jury come back after a long break and the defense would put on their case, which I understood would involve offering some evidence and reading some evidence into the record, the defense would then rest. And then we would, on Wednesday morning, have the charge conference. And then that way it would give the parties the rest of the day to incorporate the charge, whatever comes out of the charge conference, into our summations and we'd start summations Thursday morning.
THE COURT: All right.
Mr. Agnifilo, you'll let me know if there's any issue with that timing or if there's anything else that the defense would request, but otherwise, it seems like we have an agreement.
MR. AGNIFILO: Yes.
THE COURT: So we will proceed on that basis.
MR. AGNIFILO: Very good. Thank you.
THE COURT: Very good.
Anything else to address before we check on our jury?
MR. AGNIFILO: I don't think I have anything. I don't think there's anything else at this moment. If there is, I'll raise it to your Honor.
THE COURT: That's OK. We've got five minutes. Why don't we take a couple minutes here, and then we'll bring Agent Cerciello out.
(Recess)
THE COURT: Please be seated.
Let's bring back Agent Cerciello.
MS. COMEY: Your Honor, would you like me to get the witness on the stand?
THE COURT: Yes. I thought I had said that.
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(Jury present)
THE COURT: Please be seated.
Welcome back, members of the jury. Thank you for braving the heat and coming back. JOSEPH CERCIELLO, resumed.
THE COURT: With that, Agent Cerciello, you understand you're still under oath.
JOSEPH CERCIELLO: Yes, sir.
THE COURT: Ms. Comey, you may proceed.