THE COURT: Please be seated. Ms. Comey or Ms. Johnson.
MS. COMEY: I'll be handing this one, your Honor. If I may start, just to frame the discussion because it relates to Rule 412, I would like to hand up -- I have a copy for defense counsel -- the letter that the defense sent to the government memorializing the agreement we reached when we conferred about whether or not we would need to brief any 412 issues for your Honor. So I have that letter, and I also have the letter that the defense sent to your Honor after those conferrals. I don't believe your Honor has seen the letter to us before. The relevant part starts at the bottom of page one and goes into the top of page two. I'm happy to explain the dispute, once your Honor has had a chance to review that.
THE COURT: Just give me one second. You may proceed.
MS. COMEY: Thank you, your Honor. So the agreement that we understood we had reached was that both parties could elicit testimony about this victim's sexual contact with the defendant and with escorts for obvious reasons. We also agreed that both parties could elicit testimony and evidence about this witness's involvement in romantic relationships with people other than the defendant, because we understand that infidelity is a theme of the defense. And we understand that they want to argue that many of the disputes and the arguments that came up in Ms. Ventura's testimony related to infidelity. However, it was the government's position in our conferrals that any evidence or questioning about specific sex acts that the victim had with people other than the defendant or other than escorts in the defendant's presence would implicate Federal Rule of Evidence 412, which limits the circumstances under which evidence of other sex acts can be introduced with respect to a victim like Ms. Ventura.
We understand that the defense is going to cross-examine Ms. Ventura about relationships that she had with other people, romantic relationships that she had with other people, and the defendant's awareness of those relationships and the timing of those relationships. We have, as of now, no subject matter objection to that. What we object to is that we understand that there are some text messages that reference Ms. Ventura "fucking someone else." That clearly implicates -- that clearly seems to be evidence of another sexual act with a person other than the defendant and other than an escort in the defendant's presence. We believe that that implicates Rule 412. We also don't understand why it would be necessary to prove up any sex acts that Ms. Ventura had with anyone else. The defense can ask her whether she was in other relationships. We don't contest they were in other relationships.
We are concerned that efforts to put in text messages referencing her having sex with other people is an attempt to backdoor in evidence that would be prohibited by Rule 412 and to get in front of the jury suggestions that would -- suggestions that she was having sex with other people. And that would raise the specter of sex-based stereotypes and stereotypes based on promiscuity and would be improper and prejudicial to this victim and violative of her rights under Rule 412 and under the Crimes Victims' Rights Act. Because this implicates Rule 412, I will also note that Victim 1's counsel wants to be heard on this issue, which he has a right to, under Rule 412. He would want to submit something in writing if the court is not inclined to sustain our objection. I've just been handed the proposed exhibits. I would rather not read these out loud into the record. If your Honor would like to see them, I can hand up the highlighted versions, and I'll show them to defense counsel first.
THE COURT: Well, let me just understand your position. You're saying that this evidence is not admissible under Rule 412. The only way it could possibly be admissible is based on an agreement struck with the government, and based on the letter that you provided to me, it is not. So then there is just no basis for the admission of this evidence.
MS. COMEY: That is our position, your Honor.
THE COURT: What is the response? I suppose, whoever is, as the proponent of the evidence, if you are able to put it on the screen so we can see what we're talking about, that would be helpful.
MR. AGNIFILO: I don't know what exhibits exactly the government's referring to, but from the way that they referred to them, there is going to be discussion, there is going to be verbal discussion, discussion over text messages between Mr. Combs and Ms. Ventura about jealousy. When that is being expressed, it's expressed in the terms -- in the vocabulary of are you, you know, F'ing that person? Are you doing something like that? I don't see how that is -- that's exactly what we agree is fair game. I mean, that is -- that is part and parcel of the infidelity and the jealousy, and this is the real-world way that people express hurt over the realization that there is cheating going on. So if that's what the government's referring to, then --
THE COURT: I don't think they are saying that's what they are referring to. They are pointing to the letter that defense sent on March 28 in which this issue was addressed. And there, the defense says that there will be evidence as to relationships. However, the defense does not intend to introduce evidence of any specific sexual acts between the alleged victims and these other people.
MR. AGNIFILO: That's right. We are not going to ask any details about sex acts. That has nothing to do with our defense whatsoever, but --
THE COURT: You're saying you're not going to introduce evidence of any specific sexual acts?
MR. AGNIFILO: So...
THE COURT: I'm just reading from your letter.
MR. AGNIFILO: I understand. Let me make it more clear.
MS. COMEY: I'm so sorry. If we're going to be talking about specific messages, I've just been reminded by co-counsel that Rule 412 contemplates a sealed in-camera proceeding without the public and press. So if we are going to talk more specifically, I apologize, the rule expressly requires that it be sealed.
THE COURT: All right. Without referencing any specific evidence at this point, continue.
MR. AGNIFILO: So the way that this is expressed is with certain terms that themselves, I don't -- they do not refer to sex acts. It's in the colloquial. I'm sorry to say, but --
THE COURT: In terms of exhibits --
MR. AGNIFILO: Yes.
THE COURT: -- how many exhibits are we talking about?
MR. AGNIFILO: One second, Judge.
(Counsel confer)
MR. AGNIFILO: I don't know what exhibits they are talking about, Judge. I'm doing this with one hand tied behind my back. I don't know what they are talking about.
MS. COMEY: One moment, your Honor.
(Counsel confer)
MR. AGNIFILO: What Ms. Comey showed me is written communications of -- along the lines of, I hear you're F'ing with so-and-so. Don't F with so-and-so. That is not a reference to a specific sex act. That is the way that people express or ask a question, Are you cheating on me? You know, and if you would have used the words, Are you cheating on me, I don't think they would be making this objection. But those aren't the words that were used. The words that were used were a little more, I don't know, vulgar, things you're not allowed to say in a courtroom, mostly, and that is how the questions were expressed. This is the text messages and the written communications I expect we're going to see. That is not a specific sex act. That is a way of asking, Are you cheating on me? You know, and we're not -- and this isn't -- this is not even within the spirit of 412. This isn't about people of ill repute or people who are sexual or things like that. This is baked into the facts of the case.
Both sides opened on infidelities. Infidelities get expressed in the real word certain ways. All we are looking to do is express the infidelities that are part and parcel of both the defense and the prosecution and the exact manner in which they were made and the words that were used. This is not 412. And part of the agreement that we have is that this is not 412. This is part of the case. This is part of the defense. We have worn our defense on our sleeve since, I think, the first bail hearing, that all these things are about jealousy and infidelity and the anger and the hurt. This comes with jealousy and infidelity. And one would expect that the verbiage reflects the anger and hurt of infidelity, and it does. That is absolutely all fair game, Judge. I'm surprised that the government even views this as a 412 issue, or views it as something inconsistent with our agreement, because we discussed this at great length. Everybody knows that we are going to bring up infidelities, that we're going to want to bring up text messages of infidelities, and these text messages are often in colorful language. That doesn't transform this into a 412 issue.
MS. COMEY: Your Honor, if I may. We knew that this was going to be the defense, which is why we raised precisely this issue in the context of our conferrals about Rule 412 and why we wanted to make sure that the defense would agree not to introduce evidence of any specific sexual acts between the alleged victims and these other people. We wanted that specific agreement and that precise language because we would need 412 litigation and 412 notice and a right to be heard, if any evidence of a specific sex act with another person was going to come in at this trial. We flagged this issue months ago.
MR. AGNIFILO: Judge, I would like to know what specific sex act they are talking about.
MS. COMEY: Your Honor, we would need to be under seal.
THE COURT: Hold on. So here is the issue. Now that we're in cross-examination, you're going to be providing all the exhibits over to the government?
MR. AGNIFILO: Yes.
THE COURT: So there is no issue sending the court the -- Well, Ms. Comey, once you get these exhibits, then you should be in a position, if you are not already, to send those exhibits that you believe are subject to 412 to the court. Maybe you have the numbers already?
MS. COMEY: So, your Honor, the way this issue came up is that they were making rule of completeness objections to our exhibits, asking to add in text messages that we believe run afoul of Rule 412. This is how this issue came onto our radar. So we have a handful that the defense has asked that they come in as part of our exhibits. I don't know if there are more that the defense is planning to offer, but I can tell you Government Exhibit B-629 and B-640. I'm sorry. Those wouldn't have the language because we cut it out. I apologize, your Honor, we're going to have to get you these text messages separately, but...
THE COURT: That's fine. Second, Mr. Agnifilo, is there any issue -- I need to know what you're planning on doing so we can address this issue in advance. If there is a Rule 412 issue, as Ms. Comey indicates, those are various procedures that have to be followed. I have to think about whether there is even a procedure that would be permissible, given the lack of any notice under the rule. So what is your proposal as to how I can get that information?
MR. AGNIFILO: So we are giving the government all of the possible exhibits that we would use tomorrow so they will have all of that. And if there are specific things that they object to, we can have that issue raised. But this issue in terms of, you know, reference communications between Mr. Combs and Ms. Ventura is certainly not 412 and not elicited for a 412 reason. But that being said, we'll give the exhibits to the government, and we'll see what they raise.
THE COURT: Well, there's the issue of the exhibits and then there is the issue of the testimony that you're trying to elicit, right. Because those are the two forms of evidence that we would be concerned about.
MR. AGNIFILO: Here is what the nature of the problem is. The government seems to be saying that if there is a text message that says, Are you F'ing so-and-so, that that is 412 because F'ing is a sex act. That is not what that is. That is a way of expressing -- that is a way of expressing if someone is cheating on someone, and that's what that is.
THE COURT: You're saying under the rule, under 412(a)(1) or (2), it's not evidence offered to prove that a victim engaged in other sexual behavior.
MS. COMEY: Your Honor, I think it is offered to prove that the victim was having sex with another person, as opposed to being in a romantic relationship with another person.
THE COURT: You would agree there are certain -- there could be a text where it was phrased as fucking, but it was just the verbiage used.
MS. COMEY: It's hard for me to imagine, your Honor, such a text not requiring notice under Rule 412. This is hard for me to imagine. This is why 412 exists, so that there can be notice, an opportunity to be heard in a sealed proceeding, in order to sus out whether exhibits fall under the rule or not. This is why we tried to confer with defense counsel months ago and were assured we didn't need such a process.
THE COURT: All right. What I need to see are the exhibits. And I think the onus is on the government to identify the exhibits, once they've been turned over. As to the nature of the inquiry on cross-examination, I'm happy to do this -- there's an issue here, because I take it that defense does not want to reveal to the government exactly what it's going to ask on cross-examination. So I need to know, at least in general terms, what it is you are seeking to elicit.
MR. AGNIFILO: They are certainly going to know when we give all the exhibits. That's fine. This is time we have no issue with it.
MS. COMEY: Your Honor, we're not allowed to speak to the witness. I don't understand the defense question. So there is no conceivable prejudice. We can't talk to her.
MR. AGNIFILO: One second.
(Counsel confer)
THE COURT: Let's just be very clear about it. Let's say there is a hypothetical question that is -- Give me, like, the hypothetical question that you're alluding to that doesn't have anything to do with 412.
MR. AGNIFILO: Are you fucking this guy?
THE COURT: How does that not fall within 412?
MR. AGNIFILO: Because it's not a specific sex act. It's a way of asking her, Are you cheating on me? We're not looking to offer it for its truth. We don't care what the answer is. We don't care. What is relevant --
THE COURT: Well, I hope you only ask questions that you care about.
MR. AGNIFILO: It's not being offered for the truth.
THE COURT: OK.
MR. AGNIFILO: The relevance is what is in Mr. Combs' mind in asking the question. We have no interest in determining whether or not that's, in fact, true. They are in a relationship. There's a relationship. If we were talking about relationships instead of the F word, none of this would be a problem. But this is all about relationships. It's just the way that these things are being expressed.
MS. COMEY: Your Honor, I think that the defense can make these points and they largely won't be disputed by asking, for example, I can imagine a line of cross that says something like, The defendant accused you of cheating all be time, didn't he? The defendant accused you of cheating with this person, he accused you of cheating with this person, accused you of being in a relationship with this person. The defendant told you he thought you were in a relationship with other people all the time. And I suspect she would say, yes, yes, yes, yes, yes, yes. They would get the record they need, they don't run afoul of 412, and they don't backdoor in accusations that she is having other sorts of sex acts that run afoul of Rule 412. This is not only a 412 issue at this point, but also a 403 issue. Those kinds of text messages, it's distracting the jury, embarrassing, humiliating this witness unnecessarily on an issue that is largely undisputed.
THE COURT: We'll get the exhibits no later than when, 7:00 p.m.?
MR. AGNIFILO: We have them here. We have them right now.
THE COURT: You have them and you can hand them up right now?
MS. GERAGOS: I think, in the first instance, the exhibits we should start with are the ones we have been conferring on with the 106 issues. Those are the perfect ones to give to the court right now, that you believe are problematic, and I think that gets to the heart of it.
MS. COMEY: I think that's right, your Honor. But if we're going to have a discussion about it, it needs to be under seal.
MR. AGNIFILO: One thing.
THE COURT: Hold on.
MR. AGNIFILO: Sure.
THE COURT: Haven't we been talking about some of these exhibits already? We haven't been talking about them in the way of a sealed hearing. I just need to see it. We are not talking about it. It doesn't need to be shown to anybody else. But I'm sure you have the technological capability to put it on my screen. Is that possible?
MS. COMEY: Not on our end, your Honor. I defer to the defense. It's their exhibit.
MS. GERAGOS: OK.
THE COURT: Here's what we're going to do. We are going to gather all the exhibits that are potentially at issue. We're going to do that by 7:00 p.m. By 8:00 p.m., if either side wants to put in a letter on their position on these issues to the court, they can do so. If the defense feels that the court's understanding of this issue requires a deeper understanding of the nature of their cross-examination that they don't want to reveal to the government, then they can separately. They can give one letter that they want to share with the government. If there is some portion of that they believe should not be shared with the government, they can submit that to the court in camera ex parte. I can review it. We can come back at 8:30. If there any need for a sealed proceeding before we start, we will have the ability to do that with whomever is at issue that needs to be there. We can do in our robing room so it won't be in open court. There are ways in which we can handle that in a fashion that will be acceptable to everyone. So if someone thinks they might need to be heard on this issue, they should be here at 8:30. Any issues with that, Ms. Comey?
MS. COMEY: No, your Honor. I would note, if we do have a sealing proceed, either the defendant will need to be present, which the marshals would require be in the courtroom.
THE COURT: We will clear the courtroom. We will take care it of that way. Mr. Agnifilo.
MR. AGNIFILO: No. Just what I stood up to say a minute ago is, I think your Honor asked me a question and I didn't answer the question. Your Honor asked me, which is, how are we going to handle the cross-examination? I think the cross-examination can be more general. You know, talk in terms of relationships, things like that. I'm less worried about the cross-examination than I am about the exhibits that were written already.
THE COURT: We're solving problems already.
MR. AGNIFILO: Yes.
THE COURT: All right. So that's part of it. So it's really about these exhibits, is what you're telling me?
MR. AGNIFILO: I think that's right. We can phrase the questions in the cross-examination around it, but the exhibits are already written. And so I think it's an exhibit problem more than a questioning problem.
MS. COMEY: Your Honor, I understand that counsel for Victim 1 may want to be heard before we break for the day.
THE COURT: He raised his hand and I saw him.
MS. COMEY: I understand he would also like to see the exhibits, which he is also entitled to see under the rule.
THE COURT: OK. Mr. Wigdor, do you have anything further to add.
DOUGLAS WIGDOR: No, your Honor. That is my point. We are entitled to notice to the exhibits as well so we raise an objection by letter tonight or to appear in the hearing in camera tomorrow morning. Thank you, your Honor.
THE COURT: Of course. Anything further on this issue, Ms. Comey?
MS. COMEY: No, your Honor.
MS. GERAGOS: I just want to add one point, your Honor, which is why we backed off on the 106 issues on these exact exhibits, which is because if the government puts them in, they are offered for their truth, which is a point Ms. Johnson made to me last night, which we understood. And we are not going to offer any of Mr. Combs' statements, we have been talking about, that relate to this for their truth. It's only for a state of mind. I just want to put that on the record because that's been part of the conferrals about this process. I just wanted to let you know.
THE COURT: Understood. Any issues, other than the 412 issue that was just raised? There were some exhibits I know were e-mailed. There is some things to hammer out.
MS. COMEY: I don't know about that. I'm just confirming. I want to make sure we get it right. We are getting the defense exhibits at 7:00 p.m. tonight
THE COURT: No. I think they are ready to be provided to you.
MS. COMEY: Wonderful.
THE COURT: We need to get them in advance. I assumed I could get them by 7:00 p.m.
MS. COMEY: We'll get the exhibits now, we'll preview them, and get you the ones that raise 412 issues by 7:00.
THE COURT: If you need more time, let me know. That's what I said.
MS. COMEY: OK. Thank you, your Honor.
THE COURT: Is the government, in fact, in receipt of the exhibits, or are they --
MS. COMEY: I am not, your Honor.
THE COURT: I'm talking to the defense.
MS. GERAGOS: My paralegal brought binders and they are sitting right there. We will get them over.
MR. AGNIFILO: They are in the courtroom.
THE COURT: OK.
MR. AGNIFILO: We'll give them.
MS. COMEY: We will also ask for an electronic copy.
THE COURT: We're in the 21st century. Let's try to make that happen.
MS. GERAGOS: We are. I do work with Mr. Agnifilo, but we are in the 21st century.
MR. AGNIFILO: I'm a little behind.
THE COURT: Anything further from the defense?
MR. AGNIFILO: No. Thank you, Judge.
THE COURT: Be here at 8:30. Right now, this is the only issue that is relevant to tomorrow's testimony at this time. I'll be watching my e-mail. Right now. Nothing else?
MS. COMEY: For now, your Honor.
MR. AGNIFILO: Thank you, Judge.
THE COURT: We're adjourned.
(Adjourned to May 15, 2025, at 8:30 a.m.)