MS. JOHNSON: The government would respectfully request a ruling from the Court as to whether the defense will be permitted to cross-examine on this. I think it's squarely incidents that do not go to credibility and should be precluded on cross-examination.
THE COURT: Is there a response?
By the way, why is this redacted? Why are we speaking in riddles here?
MS. COMEY: Your Honor, it's redacted because if the motion is granted, then this potentially embarrassing material wouldn't become public at trial.
THE COURT: Well, the question is whether it's admissible as evidence and will be presented to the jury, right. You're just saying, as a general matter, as a matter of prudence, if it's not going to come in in evidence, you would prefer it not be public.
MS. COMEY: Yes, your Honor. There are some more inflammatory allegations and issues raised in those footnotes as well. So if your Honor wanted us to go piece by piece, we could do that.
THE COURT: No. Right now I'm not so concerned about the redactions, although I am somewhat concerned about them. Right now I am concerned about being able to address things like this in open court without having to speak in ways that would prevent us from effectively communicating.
MS. COMEY: That is fair, your Honor.
THE COURT: We are not going to do that. So we are going to talk about it however we are going to talk about it so we can get to the right answer.
MS. COMEY: That is fair, your Honor.
THE COURT: Who from the defense would like to address that?
MR. AGNIFILO: I'll handle it, Judge.
I think all we want is, we want to have that decision made both by us, and in terms of any ruling from your Honor, after the direct. If the witness testifies to certain things about herself and how she is and how she isn't, these things could be relevant. If the witness characterizes certain interactions a certain way and says certain things about her own nature, they could be relevant, and we could want to ask about them. We may make the decision not to ask about them. But without the direct examination we can't possibly know the answer to that question.
THE COURT: Help me out. In terms of item 6, which seems to be the only thing at issue --
MR. AGNIFILO: Yes.
THE COURT: -- on what grounds are you suggesting that questions and answers on this particular topic would be admissible? What is the argument?
MR. AGNIFILO: If she were to say, I'm a peaceful person, I'm not violent, I'm not the kind of person to engage in hurtful conduct or some form of violence or to be aggressive in any way, that would be relevant.
THE COURT: But, otherwise you're not going to ask about it?
MR. AGNIFILO: No. I'm not hemming myself in --
THE COURT: I am not trying to hem you in.
MR. AGNIFILO: I'm not suggesting that.
There are different variants of that kind of testimony that I think would make this relevant.
THE COURT: Fair enough.
Ms. Johnson.
MS. JOHNSON: Your Honor, respectfully, we do need a ruling on this because --
THE COURT: Why?
MS. JOHNSON: We need a ruling because we can't leave it open. If the defendant is going to cross on this particular topic, which these are two completely unrelated incidents to everything else she will be testifying about, the government is able to draw the sting on direct, and we would do so. So we cannot save this until after her direct examination and make this decision in cross-examination.
The question is whether this is an appropriate topic for cross, and it simply does not go to her credibility. She will not be testifying that she is a peaceful person. If she does, then I would agree with Mr. Agnifilo that that could potentially open the door. But absent that, this conduct just simply doesn't go to her character for truthfulness and should be precluded.
THE COURT: I can't preclude it, not having heard the direct. I think that's Mr. Agnifilo's argument, is that we don't know what the direct is going to be. There are some versions of the direct where if victim number 1 testifies that in general terms she has been a peaceful person, maybe that comes out and the government doesn't correct that impression with questions about instances of violence.
Then you'd agree, under those circumstances, the defense would be able to ask questions about this, right?
MS. JOHNSON: Your Honor, I think the government would agree that absent door opening, like -- put another way, if the door -- if the door is open on direct, I think that is a different question.
THE COURT: So maybe we have an agreement.
Mr. Agnifilo, you're just saying that if the door is open, if at the time that you start cross-examination the door is open, you are going to walk through it. Am I right about that?
MR. AGNIFILO: I'm not viewing it as a door open issue. I'm not limiting it as to credibility. I don't know that any of these things relate to credibility. I think they very much relate to the nature of this person, and the nature of this person is directly relevant to the issues that she is going to testify about. We are not going to say, you did this; therefore, you lack credibility. We are going to say, you did this and that is in your nature.
And so I don't see this as a door opening issue. I see this as a wholesale relevant matter that becomes far more relevant based on how they handle her direct and what she testifies to.
I think some of these issues are right in the heartland of some of the big issues in this case, and so I think what -- my proposal is, we wait for the direct, we see what the relevant issues are, not so much to credibility, although credibility is also an issue, but also to how she depicts herself and her nature for peacefulness or nature for getting in physical altercations with other people, and we see where we are after that happens, and your Honor makes a decision at that point.
THE COURT: That's what Ms. Johnson just said. If they open the door, then you can walk through it. That's why I asked you the question. I am trying to understand, and you're not really helping me, what the independent ground of admissibility of the type of testimony you're pointing to is. Meaning, regardless of what the government does, are you saying that it's admissible, that you can definitely ask her about it, or are you saying the government has to -- depends on what the government does on direct? Because Ms. Johnson is spotting you that you can listen to the direct and then say, well, they opened the door and they said X, Y, and Z, and now this comes in. They understand that you are going to take that position.
MR. AGNIFILO: I think it's independently relevant to show that she is a strong, capable individual who does not shy away from confrontations. My point, and I apologize if I didn't come across as helpful, I don't think the door opening analogy is a useful one here because I think it's independently relevant, and I think it becomes more relevant depending on what her testimony is.
That all being said, I think it's relevant to her nature, her nature for peacefulness, the fact that she is a strong person who is capable of starting physical confrontations, and I think that it's independently relevant. I think it becomes possibly more relevant based on the direct, but I think there is independent relevance to these things.
MS. JOHNSON: Your Honor, if I may respond to Mr. Agnifilo?
THE COURT: Just hold on for one second.
Mr. Agnifilo, in responding to the government's argument, so this is on page 23 of your brief, the only issue -- this is what you say. You say: The motion focuses on rule 608(b) and it is true, as the government argues, that rule 608(b) only permits questions on cross that relate to an act of dishonesty. So it is thus true that, without more, rule 608(b) would not perform a cross-examiner to ask a question about a witness' prior instance of domestic violence, for instance.
You indicate that there are other methods of impeachment, but none of those issues would be presented as to the specific instance that we are talking about. So it seems like maybe we are in agreement that the only reason that would come up would be if the government made an issue that would go to credibility.
And you can let me know if I'm missing something. I want to think about it and make sure I have heard all the defense's arguments.
MS. JOHNSON: Your Honor, may I respond?
THE COURT: Yes. Now you may respond.
MS. JOHNSON: Thank you.
THE COURT: And then Mr. Agnifilo will respond to what I just raised.
MS. JOHNSON: Thank you.
The argument that Mr. Agnifilo just made is squarely prohibited by 404(a). He has just asserted that they want to use this testimony to suggest other traits, other character traits about victim 1, that she is a strong, capable individual, capable of starting physical violence. That is squarely inadmissible. That is why we need a ruling on this because the only thing that they can cross-examine on is character for truthfulness, and these incidents do not go to character for truthfulness.
MS. SHAPIRO: May I respond?
THE COURT: Yes.
MS. SHAPIRO: I was actually just going to raise 404 because it actually falls under one of the exceptions, which is (a)(2)(B), which a defendant may offer evidence of an alleged victim's pertinent trait.
And the reason it's relevant is that this -- the sex trafficking charges, one of the elements is coercion and whether -- how a reasonable person in the victim's position would respond. And her character for -- it's not about her character for truthfulness. Whether these incidents occurred may become relevant to rebutting the government's argument that she was coerced because she is a strong person, etc.
And so it's highly relevant, the whole dynamic between these two individuals is at the very heart of this case and at the very heart of whether or not the government can sustain its burden to prove the coercion element of the sex trafficking charge.
THE COURT: Your point is, under normal circumstances, the government is correct that you would proceed under rule 608, but in the context of an alleged victim, then rule 404(a)(2)(B) applies, and, for that reason, you can bring in this evidence of an alleged victim's pertinent trait without regard to any issue of credibility, and this doesn't run into any issue with rule 412, so there is no issue there.
MS. SHAPIRO: Correct, your Honor.
THE COURT: In fairness, that was not raised in the defendant's response to the government's motion in limine.
MS. SHAPIRO: I understand, your Honor.
THE COURT: There was a lot --
MS. SHAPIRO: There was a lot going on, and there were many statements and many witnesses, and we tried to be brief in that particular response since our main point was that these issues should be deferred for trial.
THE COURT: Ms. Johnson, do you have a response to that argument based on 404(a)(2)(B)?
MS. JOHNSON: Well, first, these incidents have nothing to do with victim 1 and the defendant, so I submit that they are irrelevant to coercion.
But I do think this is a new argument that the just been raised now. The government would appreciate a chance to review some of the cases and to get back to the Court, as this was not raised earlier.
THE COURT: That's fine.
Ms. Shapiro, what is the pertinent trait again? Can you just explain what the trait would be? Why would the victim's propensity for violence be relevant -- be a pertinent trait?
MS. SHAPIRO: I would argue that it goes beyond that. That's part of it, but also it goes to whether she is a strong or weak person who could be coerced in the manner required by the statute.
THE COURT: The idea is that if there are instances of violence that she perpetrated, that would undermine --
MS. SHAPIRO: It would undermine the idea that her will is being overborne by the defendant because she is too weak to fight back or stand up for herself. And the government will argue that she was coerced into the sexual activity because of violence by the defendant against her, and it is highly relevant to illustrating that, because of her character, that is not accurate.
THE COURT: I can't hear. What were you saying?
MS. SHAPIRO: What I was saying was that the evidence -- the government is going to argue that because of the violence committed by the defendant against her that she was coerced into the sexual activity. That's going to be part of their argument in the case.
And to the extent that she indicates -- and evidence that in other instances she has been aggressive and violent is relevant to her strength, whether her will would have been overborne, whether violence by the defendant in fact establishes what the government is trying to say.
THE COURT: That is a stretch. I'm not seeing the connection. That is highly attenuated. The idea is that someone who has committed an act of violence in the past can't be subject to coercion? I'm not even sure that that would be relevant to coercion in a particular separate instance.
I think the government's point is, even if, generally speaking, it is correct that victim number 1's -- evidence could be brought in as to a pertinent trait, I think they are saying, this is not in any way, shape, or form pertinent or relevant to a pertinent trait.
MS. SHAPIRO: I think the jury instructions that we have submitted, and they are based largely on the Sand treatise, I think it's pretty clear that the element of coercion provides that the jury, in determining whether the defendant made a threat of serious harm, that could reasonably be believed by the victim was a threat of serious harm, that the jury is supposed to take into account various particular traits of the victim, including the victim's physical and mental condition, etc., and so it's all relevant to that. Her nature as a peaceful person, whether she is a strong or weak person, all of those things are relevant to determining whether a person in her position would reasonably believe that the defendant was coercing her.
THE COURT: On your argument, based on the allegation of coercion, any history of violence involving the victim is fair game under this rule.
MS. SHAPIRO: It could be. As Mr. Agnifilo indicated, we are not saying that we are necessarily going to go into this, but -- it may depend on the nature of how the direct goes.
THE COURT: You already won on that issue.
MS. SHAPIRO: We want to reserve the right, if it becomes relevant during the direct, to raise this, and we believe we are entitled to do so, not just on credibility, but because it relates to pertinent character traits that are going to be relevant to the analysis of whether or not she was coerced by Mr. Combs.
THE COURT: If that's what you're saying, then I don't know that the government disagrees with you because they are just saying -- you're giving a new door to be opened. You're saying that if the government were to open the door, either as to rule 404 or rule 608, then you are going to walk through that door. I think the government says, yes, we understand that.
But I don't hear you saying that, independent of anything the government does, this evidence would come in because a history of violence of the victim -- I'm not seeing the connection between that and coercion because strong people can be coerced just like weak people, right? Even if that were relevant, the strength or weakness of a person is not the issue. We are talking about a prior unrelated instance of violence against a third party. So there is like a series of linkages that you have to make to get to something that was probative.
MR. AGNIFILO: Your Honor, can I add one thing to the mix?
THE COURT: Sure.
MR. AGNIFILO: These are things that the defendant was aware of. And the relevance there is, we are going to take the position that there was mutual violence in their relationship. We are absolutely 100 percent going to take that position, that there was hitting on both sides, there was that kind of behavior on both sides. I think we are probably going to refer to it as domestic violence.
And it's relevant in terms of the coercive aspect. What would have to happen in Combs' mind for domestic violence, which we are absolutely admitting, and we are going to admit it in the opening, and we are probably going to admit it for every witness where it's relevant. Worse than that, it becomes coercive.
So it's relevant that Combs knows that victim 1 has engaged in this behavior and has this nature, not just because he knows it innately, but because there is actual activity that he is aware of that would cause him to think, while we have domestic violence in our relationship, it's not coercing her to do anything because of what I have seen and what I have come to understand is the way that she is around some of these issues. And so --
THE COURT: You're saying that it's not -- your argument will be, there is not coercion. They are just violent. She was violent. And if the government is saying that he was violent, they can take that position, but we are entitled to show that there was mutual violence, so it wasn't coercion. So when you show evidence that the government says goes to coercion, the jury should understand that there was -- if they are showing violence on one side and you can show, well, there was violence on the other side, so you have to understand that dimension of the relationship.
MR. AGNIFILO: Correct. Not so much that it couldn't be coercion; that it's relevant. It's relevant. We are not saying it's dispositive. We are saying it's relevant.
THE COURT: Ms. Johnson, anything, last words?
MS. JOHNSON: Yes, your Honor.
Mutual violence is not what these two incidents are about.
Mr. Combs is not present, I know for certain, at one of them. I'm not positive of the other, but I don't believe he is. So I don't understand how either of those could feasibly establish his knowledge of these incidents.
But stepping back, we would push back on the idea that any evidence of coercion opens the door to this kind of character evidence, and we would request an opportunity to look into this new argument that was raised today further and submit a letter on that to the Court.
THE COURT: That's fair. I'm trying to get as much information as I can because I understand the government's concern is that this is going to happen on Monday. So I will be prepared to give you a ruling right when we start on Monday so you can know what's coming.
MS. JOHNSON: Thank you, your Honor.
THE COURT: If anyone wants to submit a letter on that over the weekend, I'll be here to read it.
Thank you for that.
Any other issues that the government would like to raise or put on the Court's radar?
MS. JOHNSON: Just one other item I believe to put on the record, your Honor, with respect to the videos related to the Intercontinental Hotel. We discussed this with defense counsel, and we intend to offer -- just to advise the Court that we intend to offer the two videos that were recorded by one of the guards on his cell phone, and we intend to offer three of the videos from the CNN broadcasts that were corrected by our expert. We understand that the defense has no objection to that, as long as we later call our expert to testify.
THE COURT: That resolves the issue concerning the video.
MR. AGNIFILO: Yes.
Just so your Honor understands, we don't need it being subject to connection. I think that's sort of what's happening. Because what the government has assured us that they are going to do, and we rely on them, is they are going to call Mr. Piazza, their expert. And so long as we do get a chance to ask Mr. Piazza a few questions, I don't think it's going to be a long cross-examination, we have no problem because I understand they want to get to the third witness as quickly as possible. So we kind of forewent, I think, something that we could have done, which is to say, you have to call Piazza first. We are not doing that, as long as they agree to call Piazza at some point.
THE COURT: I am hearing that there is no dispute.
MR. AGNIFILO: Yes, Judge.
THE COURT: There is an agreement on what's going into evidence. So ordered. That sounds good.
On that note, does the Court have the government exhibits and 3500 material, or is that coming in today?
MS. JOHNSON: Your Honor, that will be coming in today. We will be able to transmit the vast majority of it in our file-sharing platform. We do have a drive that we will drop off to your Honor's chambers that contains the more sensitive material that will be encrypted.
THE COURT: Anything further?
MS. COMEY: We have one last issue to put on the record, your Honor.
Mr. Agnifilo and I were conferring, because our goal is not to raise objections in the middle of opening statements, so I flagged for him a concern that I had, and I think we have reached agreement on it.
Revisiting the subject of other people who may have paid for escorts and Mr. Combs' knowledge of that, Mr. Agnifilo and I discussed the potential relevance of that kind of evidence, and I think we have reached the understanding that to the extent there will be argument or evidence that Mr. Combs was aware of other people paying for time and thinking that paying for someone's time was different than paying for sex, I think that that's an argument that they can make.
But to the extent that the argument will cross the line over into suggesting that Mr. Combs was aware that other people were paying for sex and therefore thought it was OK for him to do the same thing, we think that would be objectionable because knowledge of its illegality or intent to break the law is not an element of the Mann Act charge. The intent is to pay for sex.
As long as the arguments and the evidence go to that intent, we don't plan to object, and we just wanted to put that on the record.
THE COURT: Mr. Agnifilo, are you planning to go there?
MR. AGNIFILO: No, I don't think we are planning to go there.
All we are talking about -- what Ms. Comey came to me, and I appreciate it, was, she said, if you do this, I would probably object during the opening, so we had a discussion about that.
I am not taking a position on any legal matter at this point. What we have agreed to do is to phrase that part of the opening to avoid an objection, just so we could not have to deal with that.
THE COURT: I would like there not to be any objections during openings, so I appreciate the parties having addressed these things.
MR. AGNIFILO: Yes, Judge.
THE COURT: We will have that.
Ms. Johnson.
MS. JOHNSON: I'm so sorry, your Honor. I remembered one more thing I just wanted to flag for the Court.
I believe the Court is sitting a slightly different day next week, at the government's request, to accommodate our timing issue. We just wanted to flag for your Honor that we may need to take slightly more frequent breaks to accommodate the witness, and the witness or the government will flag that for the Court.
THE COURT: Do you have an interval?
MS. JOHNSON: I would hope every 90 minutes.
THE COURT: Every 90 minutes. What I'd like to do is just do it myself, without having an inquiry in front of the jury about the reasons for a break. I'd rather it be on me that I'm taking a lot of breaks --
MS. JOHNSON: Sure.
THE COURT: -- so that there is not any issue of the jury thinking one thing or another about the reason.
And so if it's 90 minutes, then I'll take 90 minutes. But then if you see something and you feel like you need a recess, I don't think you need to ask the witness. I think you can just request a brief recess, and we will take it.
MS. JOHNSON: Understood, your Honor. We will take it.
THE COURT: To the defense, anything, Mr. Agnifilo, to raise on your side?
MS. GERAGOS: Just one thing, your Honor.
We received your Honor's May 12 introduction remarks, which we really appreciate you sending. We spoke with the government. We'd ask that your Honor include something about pseudonyms because we will be doing openings right afterwards. We would request the opportunity to confer with the government on maybe what that would be.
THE COURT: Yes. If there is an agreed-upon modification to that, that's the reason why we sent it out, just so the parties could talk, anything you want to add by mutual agreement, let me know. If there is a disagreement, then I'll look at it, and we will make a decision, but I'm happy to do that.
MS. GERAGOS: Thank you.
MS. COMEY: I'm confident we can agree to that, your Honor.
THE COURT: Anything more?
MS. GERAGOS: Not from us. Thank you.
THE COURT: Thanks to everyone.
We will be looking for any letters over the weekend. If there are further submissions today, we will take a look at it. Otherwise, get some rest and see everyone here on Monday morning.
MS. COMEY: What time should we arrive on Monday for the peremptories, your Honor?
THE COURT: We will have the jury in by 8:30. Everyone should be here by 8:30. I'm sure there be issues for the Court to address with the parties. If the jury is not fully assembled at 8:30, we will make good use of that time, and we will try to get started as soon as we can so we can really get started with the instructions and openings at 9:30.
MS. COMEY: Thank you, your Honor.
THE COURT: Thank you very much.
(Adjourned to May 12, 2025, at 8:30 a.m.)