3.Charging-Decisions Curative Instruction
36 linesMS. COMEY: Your Honor, I really did not want to object in the middle of counsel's summation, which is why I've held my objection till this break. There were three categories of deeply objectionable commentary that we think require a curative instruction. The first is Mr. Agnifilo's suggestion that the jury should consider why the government charged a particular racketeering predicate. That's wholly inappropriate. That crosses the line that we discussed the other day. It is not proper to invite the jury to consider the reasons why prosecutors brought a charge, and that is word for word what Mr. Agnifilo just told the jury they should do. We need a curative instruction instructing the jury that reasons for charges and prosecutors' charging decisions are not the province of the jury and not something the jury should be considering, and we need that after we come back from the break, your Honor. The other two categories are: One, Mr. Agnifilo told the jury that what happened on the Intercontinental video is assault, and that is a misdemeanor. Number one, there is nothing in the record to tell anyone what kind of crime assault is. And, number two, it's a wholly inappropriate legal instruction that he just gave the jury. So, similarly, we would ask for a curative instruction on that point. Third, Mr. Agnifilo has repeatedly suggested that the government has charged Mr. Combs with kidnapping, arson, bribery and witness tampering. We have not. We are not asking the jury to find those charges. They are part of racketeering activity, and that is a misstatement of the charges and a misstatement of the law. And so we need that corrected as well, your Honor. Those are the three things that are legally incorrect and legally improper for this jury to hear in this summation.
THE COURT: Mr. Agnifilo.
MR. AGNIFILO: Yes, Judge. I plan on getting to the RICO conspiracy in a little while in my summations. I was going to make that clear. I don't think it's an unfair way to put it. I mean, I didn't say he was indicted with those as counts, but he is charged with the racketeering activity, and I'll make it clear when I get to that part of my summation. I want it to be clear to the jury as well.
THE COURT: What about the other two issues?
MR. AGNIFILO: I think it's fair comment. I think that if the jury thinks that a charge is wholly unfounded with no evidence, they can consider that in any way they see fit. I'm not asking the jury to question why the government made charging decisions. That's not what it is.
THE COURT: Well, I mean, this is what you said. "Why charge a kidnapping where the evidence is that he didn't have anything to do with it? Why charge him? You are allowed to ask that question, and you can come to whatever answer you think is the right answer."
MR. AGNIFILO: What I'm saying is that in my view --
THE COURT: Well, let me just -- what I just read to you, which is what you said, you'd agree that that is not appropriate.
MR. AGNIFILO: I don't know that I agree, Judge, most respectfully. I want to agree with your Honor, and I think I mostly do. I think I'm allowed to be sarcastic. I think that if a charge is beyond the pale, I can make that point, and that's what I was doing there.
THE COURT: And what about the third point, which is the issue concerning the Intercontinental video?
MR. AGNIFILO: The government is claiming that they were motivated by law enforcement concerns, and it's a -- it's a matter that is, you know, a state matter. There's no reason anyone would think of this that it should be a federal, you know, what happened at Intercontinental would ever be charged as a federal crime, and I think it's fair comment.
THE COURT: All right. What does the government propose is a -- do you want to take a couple minutes and come up with what you --
MS. COMEY: Yes, your Honor. We would propose instructions for all three, and after the break, we'll come back with them. Thank you, your Honor.
THE COURT: All right. Let's break.
(Recess)
(Continued on next page)
THE COURT: Please be seated. Ms. Comey, did you have something?
MS. COMEY: Yes, your Honor. Ms. Steiner emailed, cc'ing defense counsel, to chambers our three proposed curative instructions.
THE COURT: All right. Mr. Agnifilo.
MR. AGNIFILO: I'm going to rely on counsel, Judge --
THE COURT: Well, I --
MR. AGNIFILO: -- unless you want me to do it.
THE COURT: For you.
MR. AGNIFILO: Yes.
THE COURT: Please don't do it again, because as to the three issues that were identified, I think the government validly has indicated that those would be grossly improper. All right, just to be blunt about it? Especially the issue concerning considering the propriety of charging decisions and why certain things were charged and inviting the jurors to consider those things, which are not evidence in this case. The jury is required to follow the instructions on law that I give and to consider the evidence that has been presented in the case, not to speculate about the nature of the charges or why certain things were charged. In fact, speculating about the nature of the charges is one of the agreed-upon instructions that the parties proposed that I give to the jury, that they not speculate about the nature of the charge, which is exactly what you invited the jury to do. So the instruction that I would give to the jury will be as follows: There was a suggestion during the defense closing that you should consider the charging decisions made by the prosecutors in this case. It would be improper for you to consider such matters in your deliberations, and you should disregard those comments. I will also remind you that I will be instructing you on the law in this case, and what I instruct you, and not anything that the lawyers have said about the law, are the proper instructions here. And I think that does the trick in terms of the various issues that the government has raised.
MS. SHAPIRO: Your Honor, I would like to put something on the record about this. I understand the ruling, but first of all, what Mr. Agnifilo did with respect to the matter of the charging was not improper at all. His point was simply there's no evidence here, and the jury is entitled to consider why the case was charged when there's no evidence. That's the first thing. The second, I just want to point out, and we didn't object yesterday, did not interrupt, because Mr. Agnifilo can respond to these things in his summation and the jury instructions will make clear. But I do want to note for the record, since you've called out Mr. Agnifilo, that Ms. Slavik --
THE COURT: Well, let me stop you there, because I didn't call out anything. There was an objection made during Mr. Agnifilo's closing. Ms. Comey articulated the basis for her objections, and she requested a curative instruction. That was not done as to any aspect of the government closing.
MS. SHAPIRO: I understand, your Honor, but you said that what Mr. Agnifilo did was grossly improper. And we disagree with that, but I just want to make the record clear. We didn't object because we're not interrupting people and we're going to respond. But the government misstated the law on at least two occasions with regard to the drug charge and the third element of the RICO charge. And most disturbingly, Ms. Slavik told the jury that there might have been guns at freak-offs. There was absolutely zero evidence to support that. It was, quite frankly, short of outrageous. So I just want the record to be clear, because the tone of the remarks here has been some suggestion that defense counsel is doing something improper. People are making vigorous arguments in this case on both sides. That's what's going on here, and no one is doing anything intentionally improper.
THE COURT: All right. Well, no record was made during the entire government closing, including at any of the various breaks that we had as to any of those issues. But that being said, as to this particular issue, as you may have noted, I am not giving the multiple curative instructions that the government asked for. Instead, I'm addressing what I think is one issue that the government has raised that I think is valid, meaning the consideration of charging decisions, because what Mr. Agnifilo asked of the jury was not simply to evaluate the lack of evidence. But Mr. Agnifilo specifically said: Why charge him? You are allowed to ask that question, and you can come to whatever answer you think is the right answer. That is the bridge too far. There is no basis for that kind of suggestion, and so that is being addressed. As to the other instruction, it is a neutral instruction that simply says that I'll be instructing the jury on the law in the case and that not anything that the lawyers have said about the law are proper considerations, which is a neutral instruction that seems appropriate, given the various issues that have been raised.
MS. SHAPIRO: Your Honor, I take it you're going to do that at the end of the closing. Correct?
THE COURT: No. I'm going to do it when they come out.
MS. SHAPIRO: We would ask that you do it at the end, because it's going to seem like it's a response, it's going to suggest that Mr. Agnifilo did something improper, which could be highly prejudicial.
MS. COMEY: Your Honor, I had every to object in the moment. I didn't so that I didn't disrupt his flow, but it would have been entirely proper to give that instruction in that moment as soon as he said it, because I think we have the right to have the instruction given as close in time as possible, the same way that your Honor would strike testimony as close in time as possible and instruct jurors to disregard it -- as soon as possible. So I think we are absolutely entitled to that instruction now.
THE COURT: All right. Very good. We will proceed. Let's get our jury. Let me ask the deputy to get our jury.
(Jury present)
THE COURT: Please be seated. Welcome back, members of the jury. Before the break, there was a suggestion during the defense closing that you should consider the charging decisions made by prosecutors in this case. It would be improper for you to consider such matters in your deliberations, and you should disregard those comments. I will also remind you that I will be instructing you on the law in this case and what I instruct you and not anything that the lawyers have said about the law are the proper instructions for you to consider. With that, Mr. Agnifilo, you may proceed.