3.Government Rest and Defense Case

MS. SHAPIRO: Your Honor, the defense moves for a judgment of acquittal on all counts pursuant to Rule 29. The government has failed to meet its burden to prove each element of Counts One through Five, and no reasonable juror could find him guilty of any of the counts beyond a reasonable doubt.

And although we recognize that the Court must view the evidence in the light most favorable to the government and draw all reasonable inferences in the government's favor, I just want to emphasize that it's not enough that the inferences in the government's favorable are permissible.

As the Second Circuit explained in many cases, including United States v. Pauling, 924 F.3d 649, 657 (2019), "An inference is not a suspicion or a guess. It is a reasoned, logical decision to conclude that a disputed fact exists on the basis of another fact that is known to exist. It is not speculation. Indeed, even reasonable speculation is insufficient."

And I just wanted to highlight one other principle that the Second Circuit has repeatedly articulated, which is that in cases where the evidence, at best, gives equal or nearly equal circumstantial support to a theory of guilt or innocence, and a theory of innocence, a reasonable jury must necessarily as a matter of law entertain a reasonable doubt. And that principle is articulated in a number of cases, including United States v. Valle, 807 F.3d, 508, 515 (2015); United States v. Coplan, 703 F.3d 46, 69 (2012) and many others.

And while preserving that general Rule 29 motion, I do want to highlight some specific deficiencies as to each count.

So starting with Count One: Mr. Combs is entitled to a judgment of acquittal on Count One because the government has failed to prove the elements of the racketeering conspiracy charged in the indictment.

To engage in a RICO conspiracy, the government must prove that the defendant agreed with others to further and endeavor, which, if completed, would satisfy all the elements of a substantive RICO offense. And that's from United States v. Kane, 671 F.3d 271, 291 (2d Cir. 2012).

And, thus, what that means is that the government has to prove that in the words of the statute, Mr. Combs agreed to conduct or participate, directly or indirectly, in the conduct of an enterprise's affairs through a pattern of racketeering activity.

The government has failed to prove at least three of the elements of this offense.

First, the agreement to violate RICO.

Second, that the defendant knowingly and willfully joined any such agreement, and

Third, that he agreed that he or another member of the alleged conspiracy would commit two racketeering acts.

So let me start with the first element and why there is insufficient evidence of the existence of the conspiracy that was charged in the indictment.

The government alleged that the object was to conduct the affairs of the Combs Enterprise through a pattern of racketeering activity, including eight types of racketeering acts over the course of 20 years, from 2004 to 2024. And in order to satisfy this element, the government has to show that there was an agreement to form the alleged enterprise and conduct its affairs through a pattern of racketeering acts evidencing the required relatedness and continuity required in the case law, as an example, United States v. Kane, which I cited earlier at page 284. There are several ways in which the proof is deficient on that score.

First, the enterprise here is not distinct from the pattern of racketeering activity. And it's well-settled that the existence of an enterprise is a separate element from the pattern as cases like Boyle v. United States 556 U.S. 938, 947 (2009) or U.S. v. Turkette, 452 U.S. 576, 583 (1981) state. The enterprise must be more than a group of people who get together to commit a pattern of racketeering activity. The enterprise can't be just a name for the crimes committed or the agreement to commit the crimes, otherwise it wouldn't be an enterprise. And here, the enterprise's purposes as alleged in the indictment essentially map onto and are virtually identical to the alleged racketeering acts. If you take a look at paragraph 11(f) and 11(h) of the indictment, the purposes alleged there to engage in unlawful acts of violence, including sexual violence, sex trafficking, forced labor, et cetera, essentially are identical to the alleged racketeering acts in paragraphs 13(a) to 13(h). So they can't separately suffice to establish the requisite unified enterprise under Boyle and Turkette.

In addition, the Supreme Court has held that one necessary structural feature of a RICO enterprise is the existence of relationships among those associated with the enterprise. The Boyle case says that, among others. And the relationships have to tie the enterprise together as a whole. They cannot be separate relations that run through the defendant alone.

So, for instance, a valid hub-and-spoke structure for an enterprise, or a conspiracy, exists only where one entity or individual (the hub) transacts with several other individuals (the spokes) and are connected by a unifying scheme common to all (the rim). But here, the government's theory per its opening and its proof only show at best a rimless hub-and-spoke structure. The only common link here is Mr. Combs himself, and alleged crimes that the government claims were committed by him related to his personal life and his girlfriend's. Their sexual activity and other alleged crimes related to their relationships.

And courts have repeatedly rebuffed attempts to predicate RICO liability on allegations of nothing more than a rimless hub-and-spoke relationship along these lines. See, for example, D'Addario v. D'Addario, 901 F.3d 80, 101 (2d Cir. 2018) that collects other cases to the same effect. So that's point number one.

Point number two, there is insufficient proof here to establish the single RICO conspiracy charged in the indictment, even apart from those other deficiencies. The government has alleged this 20-year long conspiracy to violate RICO, but, in fact, the evidence does not establish that Mr. Combs conspired with any other person to violate the RICO statute at all.

The government said in the opening that its theory is that Combs conspired with an inner circle of body guards and high-ranking employees who comprised the enterprise, but they failed to show that any other individual actually conspired with him to conduct the affairs of this purported 20-year racketeering enterprise. Indeed, there is at best thin proof that any of the other employees knowingly participated in crimes with or for Mr. Combs other than things like picking up or helping Mr. Combs procure personal use quantities of drugs for himself.

Most of the testimony about the employees shows that they ran errands related to his personal life, made travel arrangements for him and his girlfriends and the like, but there really is no evidence that they are -- that any were aware of or believed that he was sex trafficking his girlfriends or coercing them into sex or violating the Mann Act.

The assistants set up and cleaned hotel rooms, but they didn't know much, if anything, about what went on between Mr. Combs and his girlfriends in the hotel rooms, other than they used a lot of baby oil and Astroglide and drank alcohol and perhaps used drugs.

For instance, the government called a number of Mr. Combs' former assistants, and their testimony bears that out. Just as a couple of examples. Jonathan Perez testified that it was his understanding, and the way he viewed this was that these hotel nights were Mr. Combs' personal time or private time with a female. (Tr. 6117 and 6173). Brendan Paul testified that Mr. Combs and a significant other were going to a hotel for the night. That was sort of his understanding of what was happening in these hotel rooms. (Tr. 6834). And when one of the witnesses who was a former assistant, David James, did at one point testify that he once saw a naked man in a hotel room, but he said, "I didn't really think it was my business. I mean, I thought they were doing some personal things, and that was just part of the day, part of the job."

MS. SHAPIRO: What's more, the evidence shows that Mr. Combs actually took steps to conceal the nature of the sexual activity he was engaging in with his girlfriends from his employees, and in particular the fact, for instance, that the sexual activity with Cassie Ventura and Jane sometimes involved third parties. For example, the escorts and entertainers were booked by Mr. Combs or Cassie and Jane. He did not involve staff in booking them or their travel. Cassie and Jane both testified that they thought that what they were doing with these men was a secret that Combs shared only with them, and, indeed, that it brought them closer to Combs. And there are also many text messages and other documents that confirm that Combs himself sought to conceal the involvement of the escorts from his employees.

For instance, we saw a couple just earlier today. Defense Exhibit 3127 had an entry on I think it's -- I can't read my handwriting, but I think it's April 24, 2023, where Mr. Combs is talking to Jane, and he says, "I can't let KK know about the arrangement for the hotel night."

Another example is Government Exhibit 1407, line 17, where Mr. Combs says to Jane on November 8, 2021, "I can't have Paul at my house."

And then in that same exhibit 1407, at line 784, Jane says to Kabrale Williams on September 19, 2023, "LMK when you head out because team might be there soon. Don't want them to intercept you."

And there's another example from earlier today Defense Exhibit 3328, May 16, 2023 where Jane is talking to Kabrale Williams and is talking about how she has to wait to make sure the assistants are cleared out. So those are just a few examples.

In addition, even when, for instance, KK and some of the security guards in the earlier period learned of Mr. Combs' violence with respect to Cassie Ventura, which is not racketeering activity anyway, they did not help Mr. Combs perpetrate any further violence. Instead, there were numerous examples in the evidence where they actually tried to help Cassie in various ways and tried to deter Mr. Combs from engaging in further violence.

For example, after the InterContinental incident, Cassie spoke to D-Roc and went to his house because "D-Roc and his wife were just always there for me, so I ended up going over there to feel safe." (Tr. 645).

Cassie also testified that she was very close to Mr. Combs' security guards and felt safe with D-Roc and April.

MS. SHAPIRO: And, similarly, with respect to KK, there are examples in the evidence where KK is actually trying to help Cassie Ventura and protect her from Mr. Combs' anger. One example of that is in one of the government's summary charts GX-1411, lines 76 to 89, which is a series of texts between KK and Cassie.

With respect to the security guards, I also wanted to add that there is no evidence that they knew of any sex crimes or believed that Cassie or Jane were coerced into any sexual activity with Mr. Combs, although, as I mentioned earlier, some of them did witness the domestic violence against Cassie. And there is certainly no evidence that any of them — because there is no evidence of this at all — that any of them believed that this violence was being used to coerce Ms. Ventura to engage in sex that she didn't want to engage in with Mr. Combs or others.

Then with respect to KK, and I think the government's case really seems to hinge largely on their allegations about KK in their chart, reflecting her communications with others. There are a couple of points to emphasize. First of all, even with respect to KK, there really is no evidence that she ever thought or believed that Mr. Combs' girlfriends were being coerced against their will into any sexual activity. She didn't participate in any crimes with respect to Mr. Combs except, again, arguably, the drugs for personal use.

And in addition to what I pointed out earlier with regard to Cassie and her efforts actually to deter Mr. Combs from engaging in any violence and other damage control that she engaged in, there is also evidence that Mr. Combs was lying to her, even though she was supposed to be his co-conspirator. For instance, in Government Exhibit 1411, lines 368 and 370, in texts between KK and Mr. Combs, she says: "If you cannot be honest with me" — this is shortly after the Ventura lawsuit — "This doesn't work. We just went through you choosing to keep things to yourself and hide them. And we know this put us where we are now."

Then he says: "You can take my phone."

And she says: "this has nothing to do with taking your phone. If you're starting to lie about anything to me, I'm saying that will break me, and I just feel like we are about to live this shit all over again." So that's not the way co-conspirators act with one another.

But, at bottom, I think the gist of the evidence here about these other employees is that they ran personal errands, they engaged in damage control for Mr. Combs, and there is no evidence on the other hand that any of them were agreeing to form a RICO enterprise that would engage in a pattern of racketeering acts with Mr. Combs.

Then on this point, the final point I want to make on this is that, at worst, even if one were to take the view that the evidence could support one or more small one-off conspiracies at different times, such as, for example, with respect to the drugs for personal use, that does not prove the single charged conspiracy to violate RICO or the necessary continuity as charged in the indictment.

So one other thing to point out in that regard is that although the conspiracy is alleged to have begun in 2004, again, KK is supposed to be the main co-conspirator, and she doesn't really even appear in the evidence in any significant way until March of 2016, which is 12 years into this purported 20-year conspiracy.

And I recognize that they don't have to prove specific dates, but I don't think that the government can charge a 20-year conspiracy, introduce evidence of purported racketeering acts over the first 12 years, and then say, oh well, we're done here because all we really have to prove is that there was a conspiracy between 2016 and 2024. That would clearly be a prejudicial variance and would knock out at least half of the racketeering acts.

In addition to that point about continuity, there is also no evidence of any criminal activity or conspiratorial activity relating to the supposed enterprise between the time that Mr. Combs breaks up with Cassie in 2018 and when he starts the relationship with Jane in 2021. So in order to prove a single conspiracy, rather than multiple conspiracies, the government has to show that each alleged member agreed to participate in the collective venture towards a common goal. And so even for a RICO conspiracy, if there are separate conspiracies proven as part of the pattern, the government still has to prove the single agreement to conduct or participate in the conduct of the charged enterprise, and that hasn't been done here. I'm just going to cite one or two cases for this multiple conspiracies point. United States v. Eppolito, 543 F.3d 25, 47 (2d Cir. 2008) and United States v. Pizzonia, 577, F.3d 455, 464 (2d Cir. 2009).

Before I move on, just one last thing. Just for preservation purposes, I want to note that the Supreme Court held in Sedrick Kushner Promotions Ltd. v. King, 533 U.S. 158, 161 (2001), that a defendant charged on a RICO has to be distinct from the enterprise such that the entity is not simply same person by a different name. And under that principle, the evidence here is insufficient because the enterprise that the conspirators allegedly agreed to form and conduct affairs of is indistinguishable from Sean Combs, the person. Its purposes and goals simply involved promoting things that he wanted to do in carrying out aspects of his personal life and his private sex life, and there is no distinct enterprise.

Now, I recognize that United States v. Kelly, the Second Circuit decision from earlier this year rejects this argument, but we're preserving it for further review if necessary.

The second element requires the government to prove knowing and willful membership in the conspiracy. We think that Mr. Combs' own conduct belies any argument that he did so, and the evidence on that is insufficient.

And now I want to spend some time on the element regarding the requirement that the government prove that Mr. Combs agreed that he or a co-conspirator would commit at least two racketeering acts.

I'm going go through certain racketeering acts which we believe even if the Court denies the Rule 29 motion, at a minimum, shouldn't be charged to the jury. So I'm going to start with the bribery racketeering act. So the charge is bribery under California Penal Code Section 137(a). And as the Court will recall from the litigation we had over the crime fraud motion, this section requires the government to prove that the defendant gave or offered or promised to give to any witness, person about to be called as a witness, or person about to give material information pertaining to a crime to a law enforcement official, any bribe upon any understanding or agreement that the testimony of the witness or information given by the person shall be thereby influenced.

So there are two elements to this. The first one is that the person has to offer or promise or give a bribe to a person who is about to give material information to a law enforcement official. And then, in addition, the conspirator has to act with corrupt intent to persuade the person to agree that the bribe would unlawfully influence the testimony.

What's particularly significant in terms of the record that we have here is that under California law, the government has to prove that Mr. Combs bribed an individual who was about to give material information pertaining to a crime to law enforcement. Among other cases, People v. Fernandez, 106 Cal. App.4th 943, 948 (2003). And that case also holds that the statute is narrowly construed to require an understanding that testimony or law enforcement report will be given with the perpetrator intending to influence the contents of the testimony or report.

And when we had this other litigation pretrial, this Court found, as your Honor will recall, in April 11 transcript, pages 2 to 3, that the government with the evidence it presented in connection with that motion had failed to establish even probable cause that the particular communications in dispute were in furtherance of specified crimes. And, here, I submit that the government's case at trial includes no additional evidence that changes this analysis, much less establishes this crime beyond a reasonable doubt. If anything, the trial confirmed that there is no evidence that Mr. Combs had any intent to bribe any witness to withhold material information from the police as opposed to seeking to avoid reputational harm and negative publicity surrounding the incident for both himself and Ms. Ventura. First of all, there was no police involvement in the wake of the InterContinental incident, and all of the witnesses stated that Ms. Ventura did not want the police involved. So, for instance, Israel Florez, the security guard from the hotel, testified that Ms. Ventura refused to call the police when he asked her if she wanted to, and that she just wanted to leave. (Tr. 207). Mr. Florez also confirmed that there was no "victim" and "obviously nobody was pressing charges." (Tr. 207).

In addition, his incident report, Government Exhibit 7 R-141, states that Mr. Combs was then told no one was recording him; that the safety and the privacy of the guest is important to the hotel; and if he tried to do something like that, he would get kicked out and escorted out of the property by the police.

Ms. Ventura testified that she didn't want to report Mr. Combs and wanted to protect him. (Tr. 642-43). Kerry Morgan testified that the police showed up at Ms. Ventura's apartment because of a noise complaint by a neighbor, not because she or Ms. Ventura had called them. (Tr. 1665).

Second, Eddy Garcia testified that law enforcement was never involved, even in the days after the incident. (Tr. 3902-03). That the money was for the video and nothing else. (Tr. 3923). And that prior to accepting the money, he specifically confirmed with both Mr. Combs and Ms. Ventura that no police report would be filed. (Tr. 3933-34).

Ms. Ventura also appeared on FaceTime during the alleged bribery and stated to Mr. Garcia "that she had a movie coming out, and it wasn't a good time for this to come out, and that she wanted it to go away" all in a "normal demeanor."

MS. SHAPIRO: In addition, Mr. Garcia signed an NDA (Gov. Ex. C-111) that specifically permitted him to report information to law enforcement as required by law. So that's the bribery.

Next, I want to talk about the obstruction racketeering act. And there are two statutes that are principally at issue here: 18 U.S.C. 1512(b) -- sorry, (b)(3) and (c). they have similar elements, and I think the same analysis applies to both. There is also a dispute about whether 1591(d) is also in play. I'll get to that later, but the 1512(b) offense requires the government to prove that the defendant knowingly used intimidation, threats or corruptly persuaded another person or attempted to do so or engaged in misleading conduct with intent to hinder, delay or prevent communication with a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a federal offense.

Just to highlight a couple of important legal principles here, corrupt persuasion requires proof that the persuasion was motivated by an improper purpose, and the term "corruptly" clarifies that the statutory prohibition is limited to constitute unprotected and purportedly illicit activity. United States v. Velez, 800 F.3d 63, 70-71 (2d Cir. 2015). In addition, Arthur Andersen v. United States, 544 U.S. 696 (2005) also makes clear that the defendant has to have consciousness of wrongdoing for that statute. there is also a nexus requirement for both statutes, which requires although the government doesn't have to prove that a particular proceeding is pending or about to be instituted, the Supreme Court has held that the defendant has to have in contemplation a particular official proceeding. That's also in the Arthur Andersen case, at page 742.

So here, the allegations principally appear to involve two incidents: One involving Mia and one involving Jane, and neither of them satisfies these elements.

First, with respect to Mia, there is no evidence that supports the actus reus, the mens rea or the federal nexus requirements. Mia testified that when she received the initial -- and this relates to these texts she had with D-Roc in November of 2023, when Mr. Combs was trying to arrange a phone call with her. And she testified that when she received the initial text from D-Roc on November 20, 2023, she was "so excited to hear from him." (Tr. 3430). And she replied that "she missed you so F'ing much, Ahh." That's Government Exhibit 1410, row 17.

She then answered a call from him and had what sounded like, as she described it, a normal conversation. And then she says it ended when her radar went off because D-Roc started talking about how Puff and Cas would just fight like a normal couple (Tr. 3431-32), but no threats were communicated whatsoever. All D-Roc said was that Puff really wanted to talk to Mia and that he planned to call her, which she said she understood to mean "They wanted her to say something publicly." (Tr. 34-35); in other words, a public relations thing.

Mia responded, according to her testimony, by pretending, like, yeah, of course, I will. No problem. And then although she testified that she was terrified and threatened and scared, she did not communicate those feelings at any time to D-Roc, and there's no evidence that her reaction would have been foreseeable to Mr. Combs or D-Roc in any way. She didn't even answer Mr. Combs' calls that same day, and then she eventually responds to D-Roc's later messages on February 2, 2024, because she wanted to keep him calm and wanted to play neutral.

And then D-Roc offers to send something, but the offer that he made, which she had termed it as money, but he didn't bring that up. Actually, Mia is the one. It was in response to a message that she was out of skrilla dollars (Government Exhibit 1410, row 41). And Mia immediately refused the offer, and D-Roc never acted on it (Tr. 3439-40), which is clearly insufficient to demonstrate any corrupt persuasion. She has not talked to D-Roc or Mr. Combs since. She continued to ignore Mr. Combs' efforts to call her, and he eventually texted her a completely benign text that doesn't evince any corruption or threats or satisfy any of those other elements. He says: "Hey, I don't want to be blowing up your phone. Just needed to talk to you for ten minutes. Just needed my memory jogged on some things. You were my right hand for years, so I just speak to you to know who was even around me, and it would be good to hear your voice. But if you don't want to, all good. Just let me know. Love. Hope you're well," heart hands emoji, prayer hands emoji. (Government Exhibit 410, row 68). Mia did not receive any additional correspondence from Mr. Combs, and that was his only message to her, according to her testimony. (Tr. 34-44).

Indeed, the prosecutors, in their questioning of Mia, characterized the messages, the ones with D-Roc and the one with Combs, as "nice messages." (Tr. 343-44). Nor was there any evidence whatsoever that either D-Roc or Mr. Combs had any knowledge that Mia supposedly felt threatened or intimidated. And her own subjective feelings, even if true, can't suffice to establish the witness tampering in the absence of actual evidence that either D-Roc or Mr. Combs knew that their conduct was threatening. Indeed, Mia testified that she played it cool supposedly to deceive them and replied lovingly to D-Roc's messages, even volunteering to D-Roc that she had tried to call Mr. Combs. (Tr. 3438-39).

As to the federal nexus requirement, there has to be proof that the victim plausibly might have turned to federal officials and either that there was proof of a federal investigation in progress at the time of the purported witness tampering or that the defendant had actual knowledge of the federal nature of the offense. That's the Velez case I cited earlier, at page 74. And here there's no evidence that Mr. Combs at this time was aware of any federal investigation, much less that that was the purpose of this outreach as opposed to Mia's understanding that it was attempt to get her to say something publicly, which I mentioned earlier.

So that's Mia.

With respect to Jane, a similar conclusion follows. The government's allegations about Jane apparently center around text messages in November of 2023 after Cassie's lawsuit. Jane sends Mr. Combs a text message on November 19, 2023, regarding the lawsuit. And then she speaks on the phone with Mr. Combs 40 minutes later, and apparently the phone call was recorded, but Jane testified that she didn't know anyone else was listening and she wasn't aware that it was recorded and she didn't understand why Combs asked her if she was recording the call. But basically all he said on this conversation -- there's nothing in this conversation to evince any kind of corrupt persuasion or threats or anything clearly related to any contemplated federal proceeding. Mr. Combs makes statements like: What do you want me to do to make you feel better, baby -- because Jane's upset after reading the lawsuit -- and this is when I need you to be there for me. That's Exhibit C-348-RT. He said: I'm just trying to just know mother F'ing stop all this madness. I'm here to help you. You know what I'm saying? Try and breathe. Okay. How can I be there for you? I need your support. Please, as a friend, for the good times we been through. Please. I need your support.

Then Jane says: Who's there for me? And she testified that Sean was not wanting to hear it, and this was usually how our conversations go. (Tr. 5082). In other words, from her viewpoint, the conversation was no different than normal conversations on this subject. She claims he was dismissive and tried to get her to move on. She didn't claim there were any threats or intimidation. And she testified that Mr. Combs acted this way all the time. (Tr. 5082).

Then 22 minutes after this call, they have another call, which is also being recorded. And on this one Mr. Combs states: "I just need to tell you that I need your friendship. You know what I'm saying? And if you need me too, you know what I'm saying? Whatever. You know you ain't got to worry about nothing else though. You feel me." Regarding this statement, Jane says she believed he was talking about the rent, but Mr. Combs was already paying her rent, and there was nothing in the call about the rent. And his statements were clearly in response to her on the earlier call. That is not an evidence of corrupt persuasion or on conscious wrongdoing or intent to improperly influence any investigation. There are no threats or intimidation, and, again, there's no federal nexus. These calls take place right after Ms. Ventura's lawsuit, and there's no proof or suggestion that Jane was going to report Mr. Combs to law enforcement or even that he was aware at this early period of any federal investigation. So for the same reasons with regard to -- that there's not sufficient evidence under either of the two federal statutes.

I would note that, as your Honor is aware from the pending disputes about the jury instructions, that the government, even though it's not identified in the indictment, apparently wants to argue that there was a violation of statute of limitations U.S.C. 1591(d), which is a subsection of the sex trafficking statute. And even apart from the constructive amendment argument which we made earlier, and will repeat at the charge conference, I think there's a more fundamental problem with this statute, which is that unlike the 1512 statute, it is constitutionally overbroad, and the statute has no mens rea element. Read literally, it penalizes merely interfering with or preventing the enforcement of the sex trafficking statute in any way. And so I think read literally, it would violate the due process clause, and be unconstitutionally vague. It raises First Amendment problems. It raises Sixth Amendment problems.

For instance, if an alleged sex trafficking victim seeks advice from a friend about whether to press charges against her significant other and ultimately decides against doing so, then either she or the friend the victim consulted could certainly be regarded as having prevented the enforcement of a sex trafficking statute in some way.

Similarly, a lawyer who counseled the alleged victim or witness not to talk to the government or to assert the Fifth Amendment would be violating the statute as written. So we submit that that statute shouldn't even be charged at all because it's unconstitutional. But, in any event, for some of the other reasons that I just discussed about these facts, we don't think the proof would be sufficient even if your Honor disagreed with that.

It's a bit longer than I originally anticipated, your Honor.

The forced labor racketeering act is also insufficient. That statute penalizes knowingly providing or obtaining the labor or services of a person by anyone, or a combination of various means, such as force, the use of force, threats of force, physical restraint, threats of physical restraint, or serious harm or threats of serious harm. I think those are the provisions that are relevant to this case.

And in order to satisfy the statute, the government has to show that the defendant knowingly or intentionally engaged in one of those means that were sufficiently serious to compel a reasonable person in the workers' position to remain in the defendant's employ against their will and in order to avoid, for instance, such threats of harm when they otherwise would have left. That's a quote from United States v. Zong, 26 F.4th 536, 560 (2d Cir. 2022). and it's quoting a case called Muchira v. al-Rawaf, 850 F.3d 605, 620 (2017). And one thing to emphasize here is that this case is radically different from the mine run of typical forced labor cases. This statute was enacted by Congress to enforce the Thirteenth Amendment, and it is typically used against, for instance, domestic household employees who are immigrants, whether legal or otherwise, who don't speak English. Their passports are taken. They're typically physically restricted. Often the workers have squalid or otherwise intolerable living conditions. The Muchira case describes this in some detail. The Zong case is a good example. It's not even at the extreme end, but there the case involved Chinese laborers who came to the United States under very restrictive contracts with the Chinese government that required them to put up all this collateral, and then they had to surrender their passports to the employer. They lived in dormitories. Most of them didn't speak English. They were in the United States on special visas, so they really couldn't leave their employer if they wanted.

The case law is pretty clear that not all bad employer-employee relationships or even employer-immigrant relationships, which obviously this case doesn't, involve will constitute forced labor. And, again, the Muchira case discusses that. But, basically, what's important here is that the harm or threat of harm to the employee considered from the vantage point after reasonable person in the place of the victim has to be sufficiently serious to compel the person to remain in the job when they otherwise would have left.

And here, that isn't remotely satisfied. The government theory relates to four alleged victims: Capricorn Clark, Mia, Cassie, and Jane. With respect to the two employees, Clark and Mia, the evidence is plainly insufficient. Even if you credit their testimony, as of course you must in considering this motion, as to the threats or harm, because it doesn't show that Mr. Combs used any threats or harm to procure their labor or that they would have stayed to avoid those threats or harm when they otherwise would have left.

On the contrary, these are able-bodied, well-educated United States citizens, perfectly capable of leaving to avoid what they described as an abusive employer.

MS. SHAPIRO: The evidence shows, in fact, that when they wanted to, they did leave the job. And when they stayed, it was because they wanted to stay, despite the abusive behavior, not because of it. Indeed, it appears, with respect to both of them, that what they were most afraid of was losing their jobs with Mr. Combs and his businesses.

With respect to Capricorn Clark, she described this purported lie detector incident that she claimed went on for five days after she was accused of stealing jewelry from Mr. Combs, and she testified that she continued to work for him not because of any threats or harm but because she felt that if she had left, that it would have been written off as I stole it anyway. That's at transcript 2555. And she testified that she worked very long hours but that the only consequence if she had refused would have been the loss of her job. But at transcript 2556, she's asked: "Q. What, if anything, would Mr. Combs tell you if you failed to accomplish a task? "A. You would lose your job. "Q. Is that what he would say? "A. Yes."

She testified that she wasn't paid overtime, but that's not enough to show forced labor. If it were, virtually any violation of labor laws would be criminal.

She also described an incident in which she claims that Mr. Combs pushed her at his house in Florida and then told her to get the fuck out of my house. This is at transcript 2577. And she said that after that incident, she left her employment because "that was crossing my boundary." Tr. 2577. And she took another job where she made $25,000 more than she was making in her job with Mr. Combs. Tr. 2663-64.

So again, her response to the violence and the conditions that she's complaining about is not that she continues to work there. It's that she leaves, and she was able to leave. There was no problem.

And then there's another incident where she claims she was threatened by Mr. Combs in 2012 and then terminated, and she alleges wrongful termination. And presumably she's alleging wrongful termination because she wanted to stay. She's complaining not that she was forced to work but that she was terminated because she took a vacation. And also, after that happened, she had no problem finding another job. She was hired to be 50 Cent's manager at Primary Wave. And the transcript cites for that are 2634, 2754 and 2755.

With respect to Mia and the forced labor allegation, she testified that she worked very, very long hours; that she got little sleep; that she suffered both verbal and physical abuse and threats from Mr. Combs; that he assaulted her. But she could have quit any time. And instead, she complains repeatedly about having been suspended multiple times, by her account, without any valid reason. For example, Tr. 3259-60; 3308-09; 3406-09; 3411-12. And she talked about how one of the things that she was most scared about was that Mr. Combs was, quote, threatening her job. Tr. 3390. And then she complained that after she had gotten her quote/unquote dream job at Revolt Film, Tr. 3232, she was upset later when she learned that Mr. Combs didn't want to be involved in her film anymore. Tr. 3421. And she complained a great deal about how she didn't want to leave the company. She wanted to continue to work with Mr. Combs in his businesses. For example, Tr. 3588 and 3793.

And again, like Ms. Clark, she could have left and gotten another job. She had a bachelor's degree from James Madison with a high GPA and an impressive résumé. And in fact, she did later get a job working for Madonna for some period of time. Tr. 3779. So the elements just simply weren't met with either of those two.

With regard to Cassie and Jane, it appears that the government is relying on the sex trafficking allegations for the forced labor charges relating to those two individuals, and so I'll get to that. I think if the evidence is insufficient as to sex trafficking, then by definition, it has to be insufficient as to forced labor. I assume their theory is that, which strains credulity, but I assume their theory is that the sexual activity was a service that was work covered by the forced labor statute. But I'll come back to that.

Next, I want to address the kidnapping racketeering act. Here, I submit that, at a minimum, there's insufficient evidence of two of the three allegations even if you credit the government's witnesses. The first incident is as to Capricorn Clark. Under New York law, she told the story about the lie detector test and how, according to her testimony, for five days straight she was transported by Paul Offord to a building in Manhattan that was going to be the new office for Mr. Combs's businesses. And this does not satisfy the requirements under New York law. If she was ever restrained without her consent at all, most importantly, there's no evidence in the record that Mr. Combs knew that this was happening or agreed that a co-conspirator should kidnap her.

At most, the evidence showed that he knew his jewelry was missing and that she was one of the employees being investigated for the possible theft of the jewelry. But her alleged interactions were entirely with Mr. Offord and the person she claims administers the lie detector test. There's no evidence whatsoever that if this occurred, that Mr. Combs had any idea it was going on. And speculation, obviously, can't fill the gap.

In addition, there are serious questions about whether the government could prove that this was without her consent under New York law. She went willingly every day. She didn't claim she was forced to go at gunpoint or otherwise coerced or threatened when Mr. Offord came to pick her up, according to her story, each of the five days, and she testified that she went because she wanted to "prove her innocence" and "wanted to get through it." Tr. 2553. And she said she kept taking the test and going back each day, on her account, because I felt like it was the only way to prove that I had nothing to do with it.

Then the other incident, kidnapping, as to which the evidence is legally insufficient, is the Cassie London hotel incident. That was the incident where Ms. Ventura testified that she was taken to this London hotel and held there for several days after a violent incident in which she had been injured. And here, California law, Penal Code Section 207(a) has four elements.

The government has to prove that a conspirator took, held or detained another person by using force or instilling reasonable fear and that using that force or fear the conspirator moved the person a substantial distance; the other person didn't consent to the movement and that the conspirator did not actually and reasonably believe the other person consented. And here, I think the key is really the first two elements. And this is borne out by the California case law, but the focus is on the transportation and whether the person was moved by using force or instilling fear. The statute doesn't cover sort of what happens after they're moved. Maybe there's a different statute that does, but they didn't charge that.

There's no evidence that she was actually taken to the hotel through force or instilling reasonable fear. There's no evidence that anyone used any force or threatened force or displayed a weapon when she went from the hotel to Mr. Combs's home. She vaguely testified that Combs "had security bring me to the hotel and like sneak me into the hotel." Tr. 766. And she claims she was "not allowed to stay at his house." Tr. 767. But there was no testimony that anyone held her at gunpoint or otherwise used force or instilled fear in her to take her to the hotel.

Indeed, it's notable that she testified that she preferred to stay at his house because if she was so scared of him, why did she want to stay at his house? So she clearly wasn't moved due to any fear of Combs, and that's insufficient to prove the kidnapping under the California statute.

The other racketeering act I wanted to talk about before I get to the sex trafficking is, very briefly, the arson of Mr. Kid Cudi's car, Scott Mescudi. There's no evidence that Mr. Combs was involved in that arson. Neither Capricorn Clark nor Cassie Ventura nor Mr. Mescudi witnessed the arson or put Mr. Combs at Mr. Cudi's residence at the relevant time, and there was female DNA found on the Molotov cocktail bottle. Then finally, I'd just note that although Mr. Cudi was permitted to testify that he thought Mr. Combs was lying when they met at the SoHo House and Combs said he didn't know what happened to the car, that is not sufficient evidence, because it was clearly just based on his own speculation and not based on anything he had seen or his personal observations relating to the arson.

Now I'm going to turn to Count Two, and the sex trafficking racketeering act as to Ms. Ventura.

The evidence is insufficient to show that Mr. Combs knew or recklessly disregarded that threats, fraud or coercion were used to induce Ms. Ventura to commit a commercial sex act, as required by the statute. And I really want to focus here on Mr. Combs's mens rea. I think that's the critical element here. The government has failed to prove that Mr. Combs had that mens rea. And the key inquiry really is what he understood and not the alleged victim's viewpoint.

Even her own testimony, though, I would note, doesn't establish that Combs would have known or recklessly disregarded the fact that she was somehow coerced or didn't want to participate in the freak-offs. The upshot of her testimony was that she did the freak-offs to make Mr. Combs happy even if she testified to this Court and the jury that she didn't really want to do them. She didn't communicate that reluctance at the time to Mr. Combs.

On the contrary, the many text messages that she sent to him during the entire period of their relationship wouldn't have given -- they created a lot of dissent in the relationship and it was toxic for many reasons, but there really aren't text messages to Mr. Combs that would have given him reason to believe that she didn't want to participate in the freak-offs in particular. There were many explicit messages that a person in Mr. Combs's position clearly would have understood as indicating on the contrary: that she enjoyed the sexual activity and did not feel coerced. And although he was, regrettably, violent towards her at times, and we've heard a lot of evidence about that, domestic violence is not sex trafficking, and the evidence didn't show that she engaged in any sexual activity because of violence or the threat of violence.

Indeed, the evidence showed that when they did have a fight during a freak-off, she left. The InterContinental is actually an example of that. The fight started not before the freak-off but following a night of consensual sex during a freak-off, and then there was no sex after the fight. Moreover, there's no evidence in the record that the violence was to try to get her to continue engaging in any sex that may have been going on in the hotel room. That was not her testimony. And indeed, the video seems to show that after the violence, Mr. Combs, when he gets the cell phone, ceases the violence and just sits in the chair in the elevator lobby.

So we submit under all the evidence that has come in that the government has not met its burden of proving the mens rea element as to the Cassie Ventura Count Two or the racketeering act.

With respect to Count Four and the racketeering act related to Jane, similarly, the evidence is insufficient to show that Mr. Combs knew or recklessly disregarded that threats, fraud or coercion were used to induce Jane to commit a commercial sex act. Mr. Combs could not possibly have known that Jane did not voluntarily engage in the hotel nights.

Like Cassie, Jane testified that she loved Mr. Combs. She participated in the hotel nights to make him happy and because she enjoyed their time together afterwards, and it brought her closer to him and made her feel like she was the only one who could make him happy in this way. There are many text messages bearing this out, including some of the ones we heard earlier today during the cross-examination of the summary witness.

The evidence also showed that Jane was willing to engage in the hotel nights, even on her own account, in part, because of the economic benefits that she gained from the relationship, such as the house and various gifts and financial support and the love contract that she talked about. And unlike with Ms. Ventura, there's no evidence whatsoever except for one incident, which I'll come to in a minute, of any violence towards Jane during the course of their three-year relationship. For most of that period, it seems like the government relies on their fraud theory. And at the very least, if the Court doesn't grant an acquittal on this count and racketeering act, the government should not be permitted to argue the fraud theory to the jury because it's deficient as a matter of law. They apparently intend to argue that Mr. Combs defrauded Jane by making some promises about plans that may not have ultimately transpired, things like the Turks trip that didn't happen initially when she wanted it to but later did occur. She testified that she wanted more dinners out or quality time that she saw other girlfriends getting, and that this didn't happen as often as she wanted it to, often, because they were too tired after the hotel nights. And the government was sort of characterizing and clearly intends to argue that this is fraud because it's a false promise and that she did the hotel nights in reliance on this false promise.

That is not legally sufficient fraud to count as a means of coercion under the sex trafficking act. As the government apparently conceded in its request to charge, and the Court recognized when we had the dispute over certain of Jane's notes and we had the evidentiary argument, the fraud standard under the sex trafficking statute is consistent with fraud's well-settled meaning, and it contemplates that any alleged misrepresentations have to be material. And that's an objective standard. And the types of statements that Jane claimed that Mr. Combs made to her about upcoming plans and so forth simply don't qualify.

Even if Jane may have subjectively believed what Mr. Combs said about these activities was important to her, that's not what matters. What matters is what a reasonable person objectively would have thought and whether they would have had the same view. And the answer is clearly no. And indeed, a different, more capacious view of materiality would sweep in a broad range of everyday behavior between romantic partners and pose serious vagueness concerns, because this just happens every day in people's relationships. Someone promises to do something nice and then it doesn't end up happening, it would just sweep in all kinds of things that people do all the time, and no one says that it's fraud.

Now, in connection with the evidentiary ruling, your Honor will recall, I know that the Court invoked United States v. Litvak, the Second Circuit case from 2015, for the point that evidence that the alleged victim believed they were duped and duped as to an important matter is relevant to materiality. But the question of whether it's relevant and whether it's sufficient are two different questions, and Litvak did repeatedly emphasize that the inquiry is an objective one. The difference between Litvak and here is, there, the court merely said the views of the allegedly defrauded parties are relevant to whether the statements were material. But here, the government is claiming not that -- what I should say is that they're relevant but not sufficient. Right?

And so here, the point is Jane's subjective beliefs is really all that the government is relying on, and they're simply not sufficient to transform Combs's denying statements into criminally fraudulent misrepresentations.

The Court also posed a hypothetical during our discussion about the evidentiary issue relating to a human trafficking situation in which immigrants were duped into brothel work by the promise of green cards, and I respectfully submit I think that that's a very different situation. That's sort of an elaborate, calculated plan to trick vulnerable individuals into committing commercial sex acts. And that's very different from the scenario where you're talking about a boyfriend and girlfriend and it's a wealthy individual and they have a relationship where he's paying her rent, they have a romantic relationship, and she's disappointed that he won't take her on as many trips or go on a yacht, like she sees he's doing with other girlfriends. That's worlds apart from tricking immigrants into coming into the United States with a false promise about immigration papers. The last thing I'll note on that is that the theory is so weak that it's notable that the government, despite having three superseders, three indictments, rather, two superseders before the current one, they never charged sex trafficking of Jane as a separate count until they found out that she was alleging a single instance of an assault by Mr. Combs. That's the incident that she talked about which occurred, by her account, on Jun 18th and 19th of 2024. So I think that's very telling, and it shows that this theory of fraud is incredibly weak to nonexistent and can't support the count.

With regard to the fight on Jun 18th and 19th at Jane's house in Los Angeles, we submit that this single act by itself is not sufficient to constitute a commercial sex act under the statute. They haven't proven that a reasonable person in her shoes couldn't have left or refused to bring the escort into her house. There's also no effect of that single incident on interstate commerce. There's no evidence that the escort came from outside California or even from far away. There's no other evidence of commerce.

Then lastly, with respect to Counts Three and Five and the Mann Act, racketeering act, there's no sufficient evidence that the escorts and entertainers in question were paid for prostitution as opposed to their time, as required by the statute. The government only called two witnesses, two escort witnesses, and they both testified that they were not prostitutes and not paid for sex. That was Daniel Phillip and Sharay Hayes. They also didn't travel, and there was also evidence in the record of payments to escorts when there was no sex with Mr. Combs's girlfriends. Cassie Ventura and Jane also didn't testify that the men were prostitutes. Indeed, the words they used for them -- "escorts," "entertainers" -- belie that conclusion.

So in sum, we move to dismiss all five counts.

Thank you, your Honor.

MR. AGNIFILO: We're ready, Judge.

Thank you.

MS. ESTEVAO: Your Honor, we'd like to begin by reading a stipulation.

Mr. McLeod, could you please pull up what's been marked as Defense Exhibit 2000, and please highlight the first three paragraphs, first three numbered paragraphs.

I offer Defense Exhibit 2000. Thank you.

MS. ESTEVAO: I'm reading from paragraph 1, if you could please highlight it.

Defense Exhibits 1001, 1008 and 1026 are true and accurate records from GX B300, a device that Casandra Ventura provided to the government.

Defense Exhibits 1036, 1049, 1225 and 1422 are true and accurate records from GX B200, a device that Casandra Ventura provided to the government.

Defense Exhibits 1068, 1091, 1092 and 1099 are true and accurate records from GX B600, a device that Casandra Ventura provided to the government.

Can you please go to the next page.

Defense Exhibits 1131, 1136R, 1149, 1151 and 1155 are true and accurate records from GX B400, a device that Casandra Ventura provided to the government.

Defense Exhibit 1417A is a true and accurate record from GX B500, a device that Casandra Ventura provided to the government.

And at this time I would like to offer a number of exhibits for admission -- Defense Exhibits 1001, 1008, 1026, 1036, 1049, 1068, 1091, 1092, 1099, 1131, 1136R, 1149, 1151, 1155, 1225, 1417A, 1422 and 1428.

MS. ESTEVAO: Thank you.

Mr. McLeod, can you please pull up Government Exhibit 1402, page 2. This is Government Exhibit 1402. And please highlight row 5, the date on row 5, Jun 29, 2012.

Thank you.

Can you please pull up Defense Exhibit 1001 and highlight the second bubble -- or, I'm sorry. Can you go to the next page. And the following page. And the first gray bubble and the second blue bubble.

MS. ESTEVAO: Can we please pull up Defense Exhibit 1136-R. And blow up the first couple of bubbles.

On April 5, 2017 Ms. Ventura writes: "Dope send me a dick pic. Hello".

Can you go to the next page?

And the following page.

And the next page.

Ms. Ventura writes: "I miss you."

Mr. Combs writes: "So what you gonna do?"

Ms. Ventura writes: "Be your lil freak."

Can you please pull up Defense Exhibit 1149, page 3, and highlight the first bubble.

On May 14, 2017, Casandra Ventura writes: "LOL. I just bought baby oil at the store because I couldn't help myself."

Can you please pull up Defense Exhibit 1151 and highlight the bubble at the bottom.

Casandra Ventura writes: "About to pass out. I just wanted to let you know that I'm really happy and I'm proud of us. We've been together for a long time and I feel like we're finally starting to understand each other. We might drive each other crazy sometimes, but baby you really do make me happy. I'm far from perfect, but I hope that I make you happy even a fraction of the way you make me feel. I just looked down at my bracelet, and it made my smile. I know that you feel that there's a lot to learn about me, but I think it's solely because we've both grown. I think we're both changing in the best ways, and I thank God that we grew together and not apart. I think as long as we continue to communicate, stay faithful, honest, real, and above all just be nice to each other, we can keep it sexy and try new things because that trust will be there. No one understands me the way you do. No one gets to see the beautiful man that I'm in love with the way I do. You're my best friend. There isn't a person in the world I love the way I love you. Love always CC."

And this message was sent on May 30, 2017.

Can you please pull up Government Exhibit 1402 at page 23. And highlight the last row, the date, yeah, of June 9, 2017 to June 11, 2017. Thank you.

Last exhibit to pull up Defense Exhibit 1155. Please go to the next page.

Casandra Ventura writes: "And I love you, and I'm in love with you. I want you to be happy too."

Can I have one moment, your Honor?

MS. GERAGOS: Thank you.

Highlight the first paragraph, please.

This is a stipulation between the parties. Daniel Phillip

On or about December 18, 2023, Daniel Phillip met with one or more law enforcement agents, one of whom drafted a report of the meeting after it concluded. According to the report, Mr. Phillip stated at the meeting, among other things, that "Phillip spoke on the phone to the client, a woman, and was told to report to the Gramercy Park Hotel at 3:00 a.m. and tell the front desk that he was there to see 'Mr. Black.' The woman stated to Phillip that her husband had asked her what she wanted, to which she said she wanted to be rubbed down in oil by another man."

Please go to the next paragraph.

2. On or about October 7, 2024, Daniel Phillip met with one or more law enforcement agents and Assistant United States Attorneys, one of whom took notes during the meeting. According to the notes, Phillip stated at the meeting, among other things, that "Sean Combs would occasionally tell Daniel Phillip, go sit on the couch, it's my turn, and then start having sex with Cassie Ventura, Daniel Phillip would feel jealous as Daniel Phillip liked Cassie Ventura romantically."

3. On or about December 18, 2023, Daniel Phillip met with one or more law enforcement agents, one of whom drafted a report of the meeting after it concluded. According to the report, Phillip stated at the meeting, among other things, the following: "In approximately 2013, Phillip saw Ventura get physically assaulted by Combs at her 10 W. 11th Avenue apartment." After the assault, "Combs eventually came back and told Phillip, 'Yo man, gonna have to deal with this, need you to get the fuck out.' Phillip left." Dawn Richard

4. On or about March 18, 2025, Dawn Richard met with one or more law enforcement agents and Assistant United States Attorneys, one of whom took notes during the meeting. According to the notes, Richard stated at the meeting, among other things, that "Sean Combs threw eggs at Cassie Ventura from a skillet, which hit her. Put the pan back down," and the notes continue describing the incident thereafter.

5. On or about October 31, 2024, March 18, 2025, April 8, 2025, April 29, 2025, May 10, 2025, May 15, 2025 and May 16, 2025, Dawn Richard met with one or more law enforcement agents and Assistant United States Attorneys, one of whom took notes during or drafted a report after each meeting. The reports and notes from the first four of those seven meetings do not reflect that Ms. Richard stating that Mr. Combs told her "Where he comes from, people go missing if they say things like that, like, if people talk." Sharay Hayes

6. On or about May 9, 2024, Sharay Hayes met with one or more law enforcement agents, one of whom drafted a report of the meeting after it concluded. According to the report, Hayes stated at the meeting, among other things, that "he began to have feelings for Ventura." Capricorn Clark

7. On or about June 21, 2024, October 18, 2024, March 21, 2025, April 3, 2025, April 4, 2025, April 11, 2025, April 18, 2025, April 24, 2025, May 2, 2025, May 3, 2025, May 9, 2025, May 25, 2025 and May 26, 2025, Capricorn Clark met with one or more law enforcement agents and Assistant United States Attorneys, one of whom took notes during or drafted a report after each meeting. The notes and report from the first eleven of those thirteen meetings do not reflect Clark stating that she called Lauren London while in Mr. Combs' car outside of Scott Mescudi's house in December 2011. Mia 8. On or about January 5, 2024, January 8, 2024, March 19, 2024, June 18, 2024, September 24, 2024, February 18, 2025, February 25, 2025, March 3, 2025, March 13, 2025, March 21, 2025, March 27, 2025, March 28, 2025, April 3, 2025, April 4, 2025, April 10, 2025, April 11, 2025, April 17, 2025, April 18, 2025, April 23, 2025, April 24, 2025, April 30, 2025, May 2, 2025, May 6, 2025, May 8, 2025, May 17, 2025, May 18, 2025, May 23, 2025, May 24, 2025, May 26, 2025, May 27, 2025 and May 30, 2025, Mia met with one or more law enforcement agents and Assistant United States Attorneys, one of whom took notes during or drafted a report after each meeting. The notes and reports from the first three of those thirty-one meetings do not reflect Mia stating that Combs initiated sexual contact with Mia. The notes and report from the first two of those thirty-one meetings do not indicate Mia had an attorney present. The notes and errors from the remaining meetings indicate that Mia had an attorney present at the third meeting on March 19, 2024 and at all subsequent meetings. Bryana Bongolan

9. On or about January 18 of 2024, Bryana Bongolan met with one or more law enforcement agents and Assistant United States Attorneys, one of whom wrote a report of the meeting after it concluded. The report does not reflect Ms. Bongolan stating that Mr. Combs told her "I can kill you" at a photo shoot.

Finally, your Honor, the transcript lists at pages 6791 that we offered 3171. That was already admitted and we request that it be corrected to state 3171-A. That is our first request.

Our second request is a transcript lists 3228 as admitted. This should instead be 3288, which was an exhibit we looked substantially at today. There may be other Defense Exhibit numbers to correct which we have consent of the government to do at a later time.

But at this time the defense rests.