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. May 9, 2025 9:44 a.m. Before: HON. ARUN SUBRAMANIAN, District Judge -and a Jury- APPEARANCES JAY CLAYTON 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- SHER TREMONTE 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: PAULETTE TAYLOR, USAO Jury Consultant LINDA MORENO, Defense Jury Consultant
(Trial resumed; in open court)
THE COURT: Let's move to the issue of the pseudonym for victim 5. That application is denied for the reasons set forth in the defendant's submission.
As to the issue concerning victim 3, has the government heard anything concerning victim number 3?
MS. COMEY: I expect to have an answer, a final answer, by the end of the day today, your Honor, on whether or not we will call her.
THE COURT: Okay. And I take it that your argument -- well, your position was, look, in any case, it may turn out for any number of reasons that a particular witness can't testify or that the government chooses not to put on that witness. And that doesn't mean that, well, we need to know it in advance and if we don't know it in advance, then we're precluded from putting on that witness. And there's no rule or authority to suggest otherwise.
MS. COMEY: That is precisely our position, your Honor, but we do also recognize that we have -- we have a very professional and courteous relationship with opposing counsel. So that was why we wanted to raise this issue in advance to them because we thought it might impact their thinking about opening statements.
So, as a courtesy, we wanted to raise it. But I agree with your Honor for all the reasons you just set forth, there's no obligation to do so.
THE COURT: I agree with that, and I appreciate you're trying to work with the defense to make their lives easier. So I appreciate that. So I don't think there's anything further to address along those lines.
As to the exhibit objections, the -- let me make sure I have the right exhibit numbers here.
As to Exhibits 3Q-105 and B-105, those exhibits are excluded under Rule 403.
MS. JOHNSON: Your Honor, may I be heard briefly on that?
THE COURT: Of course.
MS. JOHNSON: Thank you. With respect to B-105 in particular, the government submits this photograph is not more prejudicial than probative. It's a photograph of Victim-1 and another witness who are testifying at this trial. They are embracing. It does not have any of the concerns highlighted by the defense with respect to 3Q-105.
The photograph in B-105 was taken on May 19th, 2005. That's a time period squarely within this indictment. That is a time period in which Victim-1 will testify that she was living in New York and it's a time period in which she was sort of immediately before she met the defendant. It's with an individual who was her best friend at the time. It establishes their relationship. It establishes what Ms. -- what victim 1 was doing at the time before she met the defendant. And I do not think it raises any of the concerns that this is more prejudicial than probative.
THE COURT: Well, it doesn't really establish anything because the defense says that it is undisputed that the two individuals were friends, that you will have the two witnesses testify. They will testify that they were fast friends. And the defense isn't going to question that. So what does this picture establish? Meaning if it has -- it may be relevant for the reasons that you're saying. But if it has no probative value, wouldn't -- the defense's argument is it may have some unfair prejudice in its depiction of these individuals. And I take your point that the issues are not as pronounced as with the other photo, but there's at least a question as to why this is coming in as an exhibit anyway. It seems more like a demonstrative, if anything.
Would the government -- I mean, the government doesn't need this to go into evidence, right?
MS. JOHNSON: I mean, the government thinks that this is a relevant photograph. It provides background information. It sets a context for victim 1's life and what victim 1 was doing immediately prior to meeting the defendant. It shows a close relationship with another witness who will testify at this trial about things that she observed between the defendant and victim 1. It provides, you know, it shows that from the very beginning, those two had a very close relationship. It's a photograph of two people embracing. I don't see that there's any prejudice to this photograph. And I do think there's probative value for the reasons I've stated.
THE COURT: All right. Fair enough.
Who would like to address any issue with respect to Exhibit B-105, if anyone?
So 3Q-105 is out. So the government is saying, look at B-105, it really doesn't say much of anything, and there's going to be testimony about this friendship, and it's just a picture of the two individuals.
MS. SHAPIRO: I understand, your Honor, but I think as your Honor's questions to Ms. Johnson earlier illustrate, we're not saying it's not relevant at all. We're just saying it has low probative value compared to the potential unfair prejudice --
THE COURT: Yeah. Tell me what's the unfair prejudice.
MS. SHAPIRO: The unfair prejudice is that victim 1 is extremely young in the picture. And I submit that, although it's not as bad as the one the Court excluded, the prejudice is still trying to create a suggestion that Mr. Combs is engaging in sexual conduct with an underage person. And the government doesn't need this. You know, they're going to call both witnesses. There's no additional importance to it. The only real reason they want it in, is because it shows victim 1 when she's extremely young and for the impact that's likely to have.
And I would say, even as a demonstrative, it has the same problem because it's going to be shown to the jury and they're going to see how young she looks in this picture, and assume that that's the timeframe, you know, that the defendant is engaging in a sexual relationship, and, you know, he hadn't even met victim 1 at the time of this photograph.
THE COURT: Ms. Johnson, can you remind me of the timeframe that's at issue with respect to the charges relating to victim 1?
MS. JOHNSON: Just the charges with respect to victim 1 are charged I believe from 2009 to present. But victim 1 will testify about when she met the defendant. Victim 1 attended a party that the defendant was at in 2004, which is a year before this photograph was taken. This photograph was taken on May 19th, 2005, when victim 1 was 19 years old, which was the age she was when she met the defendant.
She signed with the defendant's record label at the beginning of 2006, which is six months after this photograph is taken.
THE COURT: She had met the defendant prior to this photo being taken. She signed with the defendant's record label shortly after this picture was taken. And the charges at issue are not charges from 2024, but the charges go all the way back to 2009?
MS. JOHNSON: Absolutely, your Honor.
THE COURT: Okay.
MS. JOHNSON: And with respect to probative value, a visual speaks way -- speaks a thousand words as compared to a witness testifying that they were friends.
This is what these individuals looked like when -- shortly before victim 1 met the defendant. Shortly after, I'm sorry, your Honor. And shortly before she signed with his record label.
We are not suggesting through this photograph any of the things Ms. Shapiro is raising. This is simply what victim 1 looked like, establishes the friendship with this other witness, and sets a visual of what was happening in 2005 when she was of age, which is something we would draw out on the record.
THE COURT: All right. For the reasons stated by the government, I will not exclude B-105 under Rule 403. I don't, believe based on what I've heard today, that the probative value would be substantially outweighed by the danger of unfair prejudice given the picture is minimal.
All right. So that takes care of those two exhibits. Now we have --
MR. AGNIFILO: Your Honor, before we move away from this, I'm imagining the government is not going to suggest when they put this picture into evidence that victim 1 and the defendant were together. I would hope that it's going to be very clear the relevant time period that the picture -- I'm sure the government will do that. I just want to ask that that be done.
THE COURT: In my periphery, I'm seeing nodding, so...
MS. JOHNSON: It will be, your Honor.
MR. AGNIFILO: Nodding is noted. Thanks, Judge.
THE COURT: All right. So let's go to the prior consistent statements and the statements under statements of an opposing party.
So as to the prior consistent statements, maybe the government could help me out. The defense says, look, a generalized attack on credibility does not open the door to all prior consistent statements. And I take it that the government would agree with that, because if that were true, then any time any witness was possibly subject to cross-examination at which their credibility was attacked, that would open the door to the admission of any hearsay statements from that witness, which I don't believe is the rule, and I don't believe it's consistent with the text of what the rule says.
And so wouldn't we have to take a wait-and-see approach to see if there's any cross-examination or any intent to attack credibility as to the statements that are at issue to determine whether these prior consistent statements would be admissible.
MS. JOHNSON: Your Honor, I want to qualify the Court's observations slightly. I submit that the Second Circuit has been clear that a credibility attack can also occur in opening statements.
THE COURT: That's absolutely true. I agree with that.
MS. JOHNSON: And it need only be clear that the witness will be subject to cross-examination.
THE COURT: Yes. I don't even think the defense takes issue with that. I think they're saying, in this circumstance, this is not a case where there is one statement at issue. And so you would imagine that the defense in this hypothetical case could come up in opening statements and say, this person says -- is going to say that she observed a crime, but we're going to show that this witness was lying.
All right. Now, they've done it in opening statements. Now, you, in direct, could use those prior consistent statements, and it wouldn't be improper bolstering. It would be consistent with the rule. Right?
I'm not sure that that's going to happen. If it does happen in opening statements, if the defense says as to one of these statements, you know, for instance, the statement concerning a potential release of a video, right? That's one example. If they say you're going to hear some testimony about threats to potentially release videotapes, and this you got to take that with a grain of salt because that witness is lying, well, then at that point, the government would be able to bring in text messages or e-mails that support that contemporaneously the witness was talking about those threats. Right? I think that's how you're seeing it coming in. So maybe we're all on the same page.
MS. JOHNSON: I think we are on the same page. And perhaps the wisest course is to address this at side bar after opening, but I envision consistent with some of the briefing in this case that there will be sort of broad credibility attacks in the opening. That I think we will need to address --
THE COURT: So that's the point that I would appreciate your response. Because in their letter, the defense says a generalized attack on credibility does not open the door to particular prior consistent statements. And there's a case cited for that proposition. You might say, they've got that case wrong, or there are other cases that say different things, but that's what I'm trying to figure out.
MS. JOHNSON: Right. And the case -- part of the difficulty in answering your Honor's question, is that the law has shifted a bit on this with the change of rule. And that quote, a generalized attack on credibility, is coming from a 1986 case that the Second Circuit decided when the rule was different.
So I think that was sort of -- and then the case that cited quoting it, the Eastern District case from 2023, is just sort of covering in that discussion, you know, the general state of the law and commenting on that it is a bit confusing.
THE COURT: You may be right, but my understanding based on the government's briefing was that the change in the rule was to expand the ways in which you would attack the credibility of a statement, such that you would open the door to admission of a prior consistent statement. So without sub two, there would have to be an attack on kind of recent fabrication grounds, right? So they were saying, well, that's too narrow so we're going to expand that. But the rule has always said that the declarant testifies and is subject to cross-examination about a prior statement. And I think that's the issue that I'm trying to understand, is does it have to be about the prior statement?
MS. JOHNSON: Right. And I think that what we just spoke about, your Honor, is that we agree that subject to cross-examination, means that that -- that decision can occur before the witness is actually cross-examined.
THE COURT: The timing, I'm with you.
MS. JOHNSON: Right.
THE COURT: It's the "about a prior statement" seems to suggest that the inquiry is at the level of the statement. And, again, I give the same example, which is in opening statements they say, you're going to hear -- I don't want to repeat myself. But you're going to hear testimony about threats that videos would be released, and that's a lie.
All right. If the defense were to do that in opening statements, then I agree with you, I don't think it would be a close question. That would come in. You can do that in direct, in direct examination.
If they just say you're going to hear from witnesses and you should not believe them, as a general matter, then I'm not sure that that just opens the door to you putting in all of victim 1's text messages to show the jury that she is in fact credible.
MS. JOHNSON: Your Honor, with respect to how the rule was broadened in point 2 of 801(d)(1)(B), it says that prior consistent statements are admissible to rehabilitate the declarant's credibility as a witness when attacked on another ground.
So I think that does, in fact, broaden the bases on which the statement becomes admissible. I think it isn't quite as narrow as the Court is articulating with respect to the video example that you provided.
THE COURT: All right. Can you -- and there's nothing to rule on really right now. So can you see if you can find a case.
MS. JOHNSON: Absolutely.
THE COURT: That kind of shows this.
MS. JOHNSON: Of course.
THE COURT: Just to make sure that we're not sort of opening the flood gates. And to put this all in perspective, this is really a question of whether you're permitted to do this on direct examination or on rebuttal, right? Because if they do the cross-examination and say you were lying about X, Y or Z, the event that occurred, and then you have text messages that show that those things did occur, or at least that the witness said that they occurred, then on rebuttal, you're going to put those in. And not only that, you're going to put those in and undermine, at the cross-examination that just happened where there was a suggestion that these things never happened and the witness was lying.
So, really, it's just a timing concern. But, you know, that being said, we like to get things right, so if you a case or authority that you can share in response to the defense's letter, which just came in yesterday, I'll review it and I agree with you, we can handle this at a side bar after opening statements.
MS. JOHNSON: Great. Thank you, your Honor.
(Continued on next page)
THE COURT: Now, that's just prior consistent statements.
I didn't give the defense a chance to chime in, so I'm happy to hear you on the prior consistent statement issue. And I think the only thing remaining is the opposing party statement issue.
MR. AGNIFILO: I think the way your Honor is handling it is exactly right. We do have a good working relationship with the government.
What I would like to see happen, and I think that it can, is as we are seeing weighty evidentiary issues coming down the pike, we can do the best that we can to tip the Court to the fact that they are coming so that your Honor doesn't have to make a significant issue on evidence issues which sometimes are a little tricky off the cuff.
And the way that I see this particular issue is, I'm glad the government raised it. I think they might, not in a bad way, but sort of jumped the gun just because we don't have a context for it yet.
I also note -- and I'm not here to help them do their job. They are perfectly good at doing that. I don't know that a lot of the statements -- not a lot, but quite a few are hearsay statements because I don't know that a lot of them are assertions being offered for the truth of the assertion. I don't know that they even need an exception for some of them, but all the more reason why, for weighty evidence issues, we are going to endeavor to give the Court a preview of them as early as we can.
I think it's too early. I don't think we have the context for a ruling on anything in the government's proposed list of statements. I think that they are all interesting evidence issues, but I don't know that we have enough of a record and anything that's happened in terms of the prior consistent statements or the interrelation between parties and what scopes of agencies might exist for the agency admissions. I just don't think we know enough at this point.
All this to say, what I'm asking is that your Honor don't rule on anything in the list, but that we all know that as these things come closer to actual offers of admissibility, we will do the best we can to give your Honor a heads-up.
THE COURT: Fair enough. I appreciate the heads-up.
My real question is, do you care about any of these statements that are left? Because I got a long spreadsheet with a bunch of different text messages, most of which were not objected to, so that's why I'm asking you the question, which is, are these ones that the defense actually -- like, for instance, on the highlighted entries, as to which there is an objection on prior consistent statement grounds, are you going to try to cross-examine the witness on those issues? Right. Because if you're saying, yeah, we are, and we are going to try to show that the witness is not credible on the things that are at issue, then it would be nice for me to know that because then it fleshes out the evidentiary issue. That's just to give you an example. Or for the people who are identified as being agents of Mr. Combs, are they agents? I don't know what the dispute is at this point.
MR. AGNIFILO: I know that there are 106 completeness issues with many of these text messages.
THE COURT: We are going to get there right after this.
MR. AGNIFILO: Right.
And that, honestly, is probably a more important issue to us --
THE COURT: I sensed that from the letter.
MR. AGNIFILO: Right -- than this.
And I think the completeness issue will put things in the proper kind of perspective for us.
What we are trying to avoid, what we are trying to avoid is things being taken out of context and being examined either as a piece of evidence in terms of relevance or piece of evidence in terms of admissibility without the overall context. The 106 issue is a much more important issue.
THE COURT: Fair enough.
Moving to that issue, and you previewed this, basically you said, look, maybe none of this is really hearsay or being brought in for the truth of the matter, so it should come in. But if that's true, then your point is, the full story should also come in, meaning your -- Mr. Combs' own communications, etc., right?
MR. AGNIFILO: That's correct.
THE COURT: Your point is, well, look if we are getting into these text messages, especially text messages between victim number 1, for instance, and Mr. Combs, then let's just have the full story.
And you frame it as rule of completeness, but really what you're saying is is that the issue here is not whether these things were true or not. It's showing the nature of the relationship. It's being brought in for a different purpose.
MR. AGNIFILO: Precisely.
THE COURT: Those are your two arguments.
One, it's not really being brought in for the truth of the matter. It's just showing the context. They are putting in statements. It's just for like the context of the discussion.
Two, on rule of completeness grounds, if they are putting in, for instance, a text thread, then you should be able to complete that with the remainder of the text thread.
MR. AGNIFILO: That's right.
THE COURT: I understand that.
Does the government -- you can respond, but I think the defense's point is, we can do this as things are coming in, and I can rule on it swiftly, but now I have the context, which is very helpful, and we can deal with it as it comes.
But do you have a general response to the Rule 106, or none of this is really being brought in for the truth of the matter, which I think the government itself said in its briefing on the motion in limine that some of these text messages, and there are a lot more, may not be being brought in for the truth of the matter anyway.
MS. JOHNSON: I think, first, to address your Honor's last point, I think whether it's being brought in for the truth or not brought in for the truth, I think that's a message-by-message question.
In terms of 106, we are working through with the defense their 106 issues on the government's marked exhibits. I expect we will likely be able to reach resolution on those.
Just to flag for the Court, it's not so simple as to say like, if this piece comes in, everything else comes in, because these are threads that are thousands of pages long.
THE COURT: Absolutely agree. I don't believe that the rule of completeness can be stretched that broadly.
MS. JOHNSON: I imagine we will be able to reach a resolution on most, if not all, of those issues. If we can, we will tee them up for the Court.
THE COURT: Am I missing anything, Ms. Comey or Ms. Johnson, that we can productively do right now, or is there anything I can help with?
MS. COMEY: I don't know whether your Honor wanted to discuss the employee statements, there were two that had been teed up, or whether these fall into the, we will take these as they come category.
THE COURT: I think, Mr. Agnifilo, I think this is what he was talking about, that we probably should do it on a message-by-message basis because -- I take it that they might challenge the satisfaction of some of the agency criteria.
MS. COMEY: Understood, your Honor.
As to one statement, though, we expect it will be the witness' testimony about a statement made by one of the defendant's employees to her orally and not in writing.
THE COURT: Which is that on the list?
MS. COMEY: It's on the top of the second page of the printout for me. It's the one without an exhibit number, your Honor.
THE COURT: Yes, I see it. The declarant is Cruz, right?
MS. COMEY: Yes, your Honor.
That would be someone who worked for Bad Boy Records and worked as a manager for victim 1 in that capacity working for the defendant's record label Bad Boy Records and, in the course of that employment, was discussing victim 1's career and attempts to further that career and difficulties that he was having furthering that career, and we think that falls squarely within the heartland of an employee of Bad Boy's employment.
THE COURT: Response.
MR. AGNIFILO: I don't believe that's right. I don't believe that would have been something that Mr. Combs would have authorized. It seems to be sort of an ultra vires, on his own type statement if it was made. Unless there can be something in the record that would show that this person was speaking on behalf of Mr. Combs, with his authority, I don't know that this is -- I don't think this fits the parameters of the rule on this. I'm not saying it can't. I just think without a factual proffer as to the context of the conversation, that Cruz was specifically somehow authorized to have these kinds of discussions --
THE COURT: They are not seeking admission under 801(d)(2)(C). They are seeking an admission under 801(d)(2)(D). They are saying it was made by a party's agent or employee. You're not challenging that, right?
MR. AGNIFILO: That part is correct.
THE COURT: On a matter within the scope of that relationship, and this was about the music -- an artist under the Bad Boy label and how that artist would be -- what the trajectory was within the company.
So you're not objecting to that, right?
MR. AGNIFILO: What I'm objecting to is --
THE COURT: Are you objecting to that? Let's just make sure -- there are three things. We know it's an agent or employee.
MR. AGNIFILO: Correct.
THE COURT: And it was done while the agency relationship existed.
MR. AGNIFILO: Temporally, correct.
THE COURT: Then there is only one thing left. Was it on a matter within the scope of that relationship?
MR. AGNIFILO: That's where I object. I think this could have been a very personal statement made by this person for reasons totally related to whatever this person's relationship was with the other individual. We don't know that, and that's one of the things that we'd have to explore. That would have to be established in the examination of the witness testifying.
In other words, there could be a personal relationship where, I don't know, maybe he is trying to get on her good side. Maybe he is trying to do something by way of friendship or by way of a personal relationship having nothing to do with the agency relationship.
That's my point. We don't know enough to make the decision as to that particular element of the evidence rule.
THE COURT: I don't understand how it wouldn't be on a matter within the scope of that relationship, but --
MR. AGNIFILO: Can I give a suggestion?
THE COURT: Ms. Comey, let me just ask you a question. Mr. Cruz was victim number 1's manager.
MS. COMEY: Correct, your Honor, employed by Bad Boy.
THE COURT: He was a manager.
MS. COMEY: Of her career, and she was discussing her career and the issues he was having advancing her career. It falls within the heartland of his obligations as an employee.
I would point your Honor to the Pappas case that we cite on page 11 of our motion which says that liberal admissibility of this sort of proof is warranted because an employee is usually the person best informed about certain acts committed in the course of his employment. And while still employed, an employee is unlikely to make damaging statements about his employer unless those statements are true. I think that this statement falls within the heartland of what Pappas was talking about. He is unlikely to say something negative about his boss unless it is true.
THE COURT: The objection is overruled.
Next, or is there anything else, Ms. Comey?
MS. COMEY: Not on that topic, your Honor.
MR. AGNIFILO: Your Honor, what I think the evidence is going to show is that the relationship between these two parties was primarily personal. Let's just see if that comes out in the evidence. Because if that comes out in the evidence, it defeats the admissibility of this.
THE COURT: I don't think it does, so the objection is overruled.
Ms. Comey, anything else that we can productively do here before we come in on Monday?
MS. COMEY: There were a few things that we wanted to put on the record, if that's all right, your Honor, about things that the parties have conferred about and reached agreement about.
The first is, the parties have conferred about opening statements. Neither party will be using any demonstratives, so there is no need to exchange those or review those.
We have also discussed potential topics of cross-examination with respect to the government's first three witnesses, and the defense has agreed not to cross-examine those three witnesses on certain topics that were raised in our briefing. So with respect to the escort, they have agreed not to cross-examine him about the past allegations and certain domestic issues that were raised in the redacted portion of that brief.
With respect to the individual number, I think it was three or four -- I'm sorry. I can't remember the number, but with respect to that first witness, they agree not to cross-examine that witness with respect to the one issue we had flagged in our footnote.
And with respect to victim 1, I will turn to Ms. Johnson to put on the record what the agreement is.
MS. JOHNSON: With respect to victim 1, we agreed with counsel not to -- they will not cross-examine on certain medical-related topics. But they have not agreed not to cross-examine on the item we moved on in our motions in limine. It's on page 68 in footnote 18.
THE COURT: Give me one second.
MS. JOHNSON: Sure.
THE COURT: You said page 68?
MS. JOHNSON: 68, footnote 18, number 6.
THE COURT: OK.