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 15, 2025 8:30 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: LUCY GAVIN, AUSA Paralegal Specialist SHANNON BECKER, AUSA Paralegal Specialist RAYMOND MCLEOD, Defense Paralegal Specialist
(Trial resumed; jury not present)
THE COURT: Who's going to be addressing the 412 issue from the defense's side?
MR. AGNIFILO: It's going to be me, Judge.
THE COURT: Mr. Agnifilo, can you put Rule 412 to the side for a moment.
MR. AGNIFILO: Of course.
THE COURT: How are you getting these exhibits into evidence? Just walk me through that.
MR. AGNIFILO: So for text messages, we are going to ask the witness just like the government did, you see this text message, is this a fair and accurate text exchange between you and the defendant.
THE COURT: Well, there are no objections raised. So let's assume there has been an objection raised. How are you going to get these in? Are these prior inconsistent statements? What are you doing?
MR. AGNIFILO: Most are not offered for the truth of any assertion. So in the first instance, I believe most of the proffered text messages are not hearsay to begin with because there's no assertion being offered for its truth. I think your Honor made reference, I think it was a few days ago, that part of what may be relevant, we're saying that it's very relevant in this case, is the nature of the relationship. This is a relationship that took place largely over text message. They communicated about everything.
THE COURT: I understand. I had that question. You're saying they're not being brought in for the truth of the matter asserted. They're being brought in either for context or I suppose the defendant's state of mind.
MR. AGNIFILO: That's right. Or Ms. Ventura's state of mind because she would need to -- for the sex trafficking count, there would need to be coercion. But I think it's probably most relevant for Mr. Combs' state of mind. I don't even know that we necessarily get that far because if they're not being offered for the truth, if they're just being offered to show context and how the relationship progressed, I think it ends there because there's no hearsay statement, there's no statement that's defined as hearsay.
THE COURT: I understand. All right. The defense argues that the messages at issue are not being offered to show either that a victim engaged in other sexual behavior or to prove a victim's sexual predisposition. However, the defense has cited no case indicating that where evidence of a victim's sexual behavior or a sexual predisposition, which this is, is brought in for a different purpose — here, context, or the accused's state of mind, that Rule 412 would not apply. In fact, this would impose by judicial fiat an exception that is not encompassed by 412(b). The Fourth Circuit has gestured at such an exception the Doe case, but it appears to be the only court that has adopted any exception along those lines, and the exception was itself questioned by the Fourth Circuit in the Saunders case, which is cited by the government. The advisory committee notes moreover that the amendment to the rule to address sexual predisposition was intended to exclude evidence that does not directly refer to sexual activities or thoughts, but that the proponent believes may have a sexual connotation for the fact finder. These messages fit the bill. Rule 412 applies.
MR. AGNIFILO: Your Honor, can I be heard?
THE COURT: Let me finish and I'll do the same thing which we've always done, which is you can react to what I'm saying. The evidence does not fall within any of the exceptions listed in 412(b). The only exception that defense points to is (b)(1)(C), which refers to evidence whose exclusion would violate the defendant's constitutional rights. Here, as the defense acknowledged yesterday and as the government acknowledges in their letter, witnesses can be cross examined on relationships with other people, even questioning on whether those relationships were intimate in nature, and communications between Mr. Combs and witnesses such as Ms. Ventura concerning all of that are fair game, say for the very small category of messages at issue, which the government offers, can be redacted and then admitted, which goes to show how much of a tempest in a teapot this issue really is.
Even if there were potentially any constitutional dimension to this issue, and there is not, the procedures required in Rule 412(c) were all flouted. While the defense may claim there is good cause to excuse their failure to bring this issue to the Court's attention sooner, the Court disagrees. When the defense struck its deal with the government, as memorialized in the March 28th, 2025 letter, it was aware that there was an issue relating to Rule 412, and the language employed in the letter was conspicuously vague. The defense apparently did not advise the government that they would be introducing evidence about, for instance, Mr. Combs advising Ms. Ventura that he believed she was having sexual encounters with other people. I won't get into the language employed in the messages. Instead saying that while it would introduce evidence of romantic relationships, it would not introduce evidence of any specific sexual acts between the alleged victims and these other people.
So the evidence would be excluded in any event for failing to follow Rule 412(c). The evidence would also be excluded on Rule 403 grounds for the reasons stated above. The probative nature of the specific messages that are referenced is minimal given that the witnesses can be cross examined on their relationships with other people, including whether those relationships were intimate in nature and communications relating to all of that are fair game, including any questions to any witness about Mr. Combs communicating that he was jealous or suspected that there was infidelity on the part of the witness being examined. On the other side of the ledger, there is a high degree of unfair prejudice and potential victimization of the people who are testifying, which is precisely the point of Rule 412 and why it was adopted in the first place, to prevent this kind of thing from happening.
However, the exhibits unredacted can be used to refresh a witness's recollection as Rule 412 solely applies to the admission of exhibits. The government further argues that the exhibits could be redacted because it is only the evidence of the actual sexual behavior itself that Rule 412 covers, at least as the government acknowledges in its letter. Finally, there should be no issue with testimony, again, because the issues of Mr. Combs's thoughts on infidelity, jealousy, et cetera, that go to the defense's argument are fair game and the government does not suggest otherwise. The truth is, this will not affect the defense's case in any way, shape, or form, other than to exclude plainly inadmissible messages that have questionable relevance to this case. Mr. Agnifilo.
MR. AGNIFILO: Thank you, Judge. We alluded to this yesterday, and I see that your Honor's trying to strike a balance, but I want to put everything in a slightly different relief.
THE COURT: I'm not trying to strike a balance. What's the case? What's your case or authority?
MR. AGNIFILO: The crux is the agreement that your Honor referenced, but there's a background to the agreement as almost all agreements have. This is a subject that we discussed with the government extensively, throughout March of this year, and I want to read the relevant paragraph of the agreement into the record, if I could, just to make sure --
THE COURT: From the March 28th letter?
MR. AGNIFILO: Yes, Judge, because there's one particular paragraph, there's a few sentences that really is the whole heart of the argument here, and it reads as follows: In addition, we expect there will be evidence from both prosecution and the defense as to relationships alleged victims had with people other than Mr. Combs. The defense may cross examine witnesses and/or introduce evidence as to interactions between Mr. Combs and the alleged victims regarding the existence of such relationships. However, the defense does not intend to introduce evidence of specific sexual acts between the alleged victims and these other people. We understand, based on our discussions with you, that the government agrees that such evidence does not implicate 412 as long as it does not involve specific sexual activities between the alleged victims and these third parties. Now, here's the import of that --
THE COURT: Let me just pause right there.
MR. AGNIFILO: Of course.
THE COURT: In the letter that you submitted last night, you quote from the text messages the specific parts of the messages. That's really what we're talking about. We're talking about specific words in specific messages. How would those not be specific sexual activities, the line that you just quoted from the letter? Because, again, the government isn't complaining about anything else, meaning they're not complaining as to this particular objection, to anything other than about eight words in specific messages. So let me ask you this question before we get to the import of all of this. You're preparing your cross-examination, when you're going through these exhibits, did you go back to the government and confirm that these specific messages would be consistent with the agreement? And when did you do that?
MR. AGNIFILO: In terms of the specific exhibits, we didn't do that until yesterday after.
THE COURT: So how would you ever be in a position to establish good cause? Because if you had done it even two weeks ago, a week ago, then the government would have told you that they believe this fell under Rule 412 and did not fall within the parties' agreement, at which point you would have filed a motion with the Court, and you would have brought that to the Court's attention in any one of the 15 or so hearings that we had in this court, and I would have addressed that then, right?
MR. AGNIFILO: I understand. But a few things that I think we have to all keep in mind. Every single piece of evidence that we're talking about we got from the government. It's the text messages between Mr. Combs and Ms. Ventura that the government gave us. They had this material before we did. And this is important I think for the record. At the moment, I hear your Honor. I know your Honor has given this a lot of thought, as you always do. I'm just trying to sort of give your Honor a different way of looking at the letter and the understandings. When we wrote this letter, we wrote this letter as the government conceding in the letter to our interpretation of the rule and how the rule applied to the facts of this case. 412 is contextual, and I think the Court sees that in what the Court said this morning. 412 will be different in every case, and the reason it will be different in every case is because of the requirement that 412 not violate the Constitution.
That means in this case, there's a defense, there's a defense that we have stated from the get-go, and I think we even told the government in our meet and confers what our defense was going to be as relevant to these issues, which was this: There's going to be testimony on cross-examination, probably on direct, and there was, there's going to be exhibits, which is why specifically we put in the letter examined witnesses and/or introduced evidence. That is going to reflect anger, jealousy, betrayal over relationships or perceived relationships. Now the thought going in was that all of that was fair game, regardless of how colorful, regardless the language that's used, and it's not human nature to express those types of strong emotions in flat language. They're going to be expressed colorfully, they're going to be expressed the way that they're expressed here.
Our understanding going in was that if we got evidence from the government in discovery that they had, that they would have seen -- and we've always been focused on the specific text messages. We're not talking about this tremendous universe of evidence, we're talking about the text messages between Mr. Combs and Ms. Ventura. First and foremost, that's always been sort of the heart of these discussions, that that would be outside the purview of 412. That animated all of our decisions in this case, that last sentence of that paragraph of the letter where the parties said if this is the case, it doesn't implicate 412. There's a little bit of a change in the agreement. The government is, I feel, backing away from the agreement that we struck with them. The agreement was the entire issue.
THE COURT: In the context of making this agreement, there always has to be a meeting of the minds. And so did you tell the government we are going to put in messages that refer to sexual conduct or discussions of a sexualized nature, and just want to let you know, we're going to be doing that, and are you okay with it, and the government responded and said that's no problem, that's okay. Yes or no?
MR. AGNIFILO: Yes. The answer is yes. The answer is yes. We had discussions there's going to be text messages, and what they said, as long as it impacts on jealousy, on things like that within the purview of the case. There's certain things we can't do. We can't go outside the communications between Combs and Ms. Ventura. If there's something else that an alleged victim in this case did that Mr. Combs doesn't know about and that doesn't animate the conduct, we can't go into that, and we've always known that.
THE COURT: And you've had these discussions over email?
MR. AGNIFILO: I'd have to go back and check. We had the discussions, we had the discussions specifically about evidence and not just testimony, but the evidence. The written communications were always the heart of this.
THE COURT: Let me ask you this: Let's say I agree with you on everything — in what way is your defense in any way impaired given what I said, which is that the government is really complaining about a few words. In fact, they are the ones that offered that you could redact these messages. So let me just give you an example. I take it that there may be cross-examination of some witnesses in which they're going to be asked, isn't it true that, repeatedly through your relationship, Mr. Combs raised questions about your relationships with other people, and you get whatever answer you get. You might be in a position to have to use certain messages to refresh the witness's recollection, et cetera. Government is saying you can do all of that, you can ask the questions, you can get the answers that you need. They're even saying if you need it, if you can satisfy all the requirements and get this admitted and put in front of the jury, that you can do that if you just redact these a little bit. There are ways to deal with this. The witness can see the unredacted emails and text messages and it's just the jury that wouldn't receive the unredacted messages, but you could have the witness confirm what is underlying those redactions in a generalized way that wouldn't implicate the issues raised by 412. I'm not understanding why there's any issue really here, and this gets to not only Rule 412, but also Rule 403, and it also strongly indicates that there's not even an iota of any constitutional dimension to any of this because your ability to cross examine and confront these witnesses is not in any way impaired. I think that's the point the government is trying to make.
MR. AGNIFILO: Here, on a purely practical level, here's what I propose -- I'm going to look at my team as I say this and make sure I don't get dirty looks. I don't believe we need to get into any of the challenged messages this morning. We do not need to get into any of the challenged messages this morning. Now that it's not 3 o'clock in the morning for the next few hours, while Ms. Estevao conducts the examination, Ms. Geragos and I will talk to the government and we will try to bring about an agreed upon resolution to the outstanding issues. So just to be clear, we're not waiving -- we hear the Court. We're not waiving any of our objections, we're not waiving a constitutional -- we're not waiving any of those things, but we are going to move forward and try to be practical and reach a resolution that makes the trial run smoothly.
We obviously, and the Court, as well, I'm not saying it's just us, we have to be mindful first and foremost of the constitutional implications of all of these issues, and we are acutely aware of that and we must be. While I certainly understand your Honor's view that with the solution your Honor's proposing, the constitutional issues are not as paramount. I don't know that they're eliminated. I guess the devil's in the details. So we will do what we can to reach resolution. And I just want to take one more step back, and this is one of those times it didn't happen. This letter was supposed to take this issue off the Court's plate. That was the idea, that we wouldn't have all of these tricky 412 litigation issues before the trial. And I thought we had accomplished that. And I hear your Honor, looking back at it, a week ago, we would have tried to give them the exhibits. I know. I'm with you. We'll move forward, we won't address any of these things in the morning session certainly, and in the meantime when we have breaks or at lunch, we'll confer with the government and try to reach some resolutions.
MS. COMEY: Your Honor, I need to correct the record on a couple points for the record's sake, if that's all right with your Honor.
THE COURT: Of course.
MS. COMEY: Thank you. The meet and confers that led to the March 2025 letter were over the phone. There were two of them in March of 2025. On the first, the parties discussed the potential issues, we agreed to go our separate ways, do some research, come back. The second was on March 28th of 2025. There's no emails about it. We have internal notes, and our internal notes say that the governments reads the rule to say to the extent the parties want to admit evidence between victim and defendant, then 412 doesn't apply. If other sexual contact with other people outside of contact within scope of charges, then need to notice under 412. Defense counsel acknowledged that this makes sense. And defense counsel will make clear in letter to Court what everyone's understanding is of the rule. And there were other discussions about potential notice.
At no point in the notes, or in any of our memories, did defense counsel send us any text messages or alert us to any text messages, certainly not the text messages that are at issue here as the kind of evidence that they might want to introduce to prove up these other relationships. So I forgive Mr. Agnifilo for probably thinking about a different conversation, we have talked about a lot of messages over the course of the last few weeks, but in the context of this particular meet and confer, there was no discussion of these text messages. And although Mr. Agnifilo is correct that all of these messages came from the government's own discovery as I noted, the messages between Ms. Ventura and Mr. Combs total in the thousands of pages and there are terabytes of data and we were not on notice. We simply were not on notice that these text messages were going to be at issue. So I wanted to correct the record on that. I'm also told victim 1's counsel still wants to be heard, if that's all right with your Honor.
THE COURT: Why? For what reason?
MS. COMEY: I think if your Honor is going to maintain your Honor's ruling that these messages will not come in and the meet and confer that Mr. Agnifilo is proposing is just about redactions, I don't know that there's a right to be heard. If, however, your Honor is holding that ruling in abeyance after Mr. Agnifilo's request that we confer, I think he would have a right to be heard.
THE COURT: I made my ruling. It seems like maybe people don't understand. Not only is there no basis to admit these specific messages, but the whole point, the real practical point that I want to make — maybe we're not on the same page — is that there's no issue here as far as I can tell because the actual examination of witnesses is not being impaired. The admission of 99.9 percent of the evidence here is not being impaired. Even as to these specific messages whose probative value is minimal, if any, the government has agreed that these could probably be redacted in a way that even those messages could be put in. So there's simply no issue here, as far as I can tell, in addition to the other legal infirmities that I've addressed. Am I wrong about any of that?
MS. COMEY: I don't believe so, your Honor.
THE COURT: Just to address it right now. Because of the nature of Rule 412 and what it actually covers, even if you were to just redact particular words in these messages, that would be sufficient, because at that point the evidence would just go to the communication that was going back and forth and the fact that those communications happened. So these are simple redactions that technical staff could probably do in about 20 minutes, 30 minutes this morning, and then there would be no issue, right?
MS. COMEY: I think that's right, your Honor. We need to look at each message. I think if we could remove any references to sexual activity, there would be no 412 issue.
THE COURT: Because as pointed out in cases like Olden and cited by the defense, et cetera, there can be inquiry to establish there was a relationship, and that's covered by the parties' agreement. You can't even specify that the relationship was intimate in nature, right. None of that falls within Rule 412.
MS. COMEY: I think that's absolutely permissible, your Honor. It's beyond anything we object to.
THE COURT: Mr. Agnifilo, you heard that. There should be an easy way to resolve this on a practical level. But I understand what you said before, which is you're not waiving your objection, you're preserving your objection. I hear that.
MR. AGNIFILO: Thank you, your Honor. We will endeavor at breaks to reach resolution.
THE COURT: With that, Mr. Wigdor, is there something that you wanted to raise?
DOUGLAS WIGDOR: Yes, your Honor, briefly. I know there's a jury that needs to come out. Your Honor, Doug Wigdor for Cassie Ventura. Your Honor, I think the only issue that I have is I'm the only person who actually represents the victim who has standing under Rule 412, and I appreciate your Honor's order. But in terms of the meet and confer, I should be part of that. I've already gone through the vast number of documents that have been provided to me. It was not in conformity with Rule 412, which had required the defendant to provide the victim with actually the exhibits and what they were going to be offered for. But I went through them and I isolated many instances that I believed would be in violation of Rule 412. And so the government doesn't represent Ms. Ventura, I do. And so I want to make sure that whatever is decided, that I'm part of that to make sure that Ms. Ventura's interests are met.
THE COURT: Ms. Comey, the letters that were circulated overnight, has Mr. Wigdor been furnished a copy of those?
MS. COMEY: Yes, your Honor.
THE COURT: Mr. Wigdor, you now have the universe of the exhibits that have been identified that implicate this issue?
DOUGLAS WIGDOR: I do, and I went through them into the early morning hours, and I've identified in a chart, frankly, all of the sections in those exhibits that I believe would be in violation of Rule 412. I'm happy to share that with the defense and see what their position is. The burden is on them to share it with me, not vise-versa.
THE COURT: Hold on. Putting that to the side, you heard my ruling.
DOUGLAS WIGDOR: I did.
THE COURT: Do you have any issues with that ruling? Because we have to move these proceedings along. You have the exhibits, you've heard what we said, you've heard this entire 30-minute discussion. Is there some part of it you believe does not address the Rule 412 issue? Because I think I covered everything. Let me know.
DOUGLAS WIGDOR: The only thing that I would say is your use of the phrase intimate in nature. I'm not exactly sure what defense counsel believes that means and what questions could be asked of Ms. Ventura under that scope.
THE COURT: I think that's the question. It was a romantic relationship. In fact, it was intimate in nature; isn't that right?
DOUGLAS WIGDOR: And that's it.
THE COURT: I'm not going to constrain Ms. Estevao, for instance, in terms of the particular verbiage, but I don't think it's going to get -- I don't believe she's going to be getting into the ground of 412 talking about specific sexual conduct or sexual predisposition. If it's about the general topic of intimacy, it will be fine. Look, I will be policing it, so don't worry. And the government is going to be policing it, too.
DOUGLAS WIGDOR: I don't think the rule requires it to be specific in nature. I think innuendo is covered by the rule. And so I want to be very careful that Ms. Ventura's interests are protected.
THE COURT: If an issue comes up, you'll can raise it and we'll address it. Okay?
DOUGLAS WIGDOR: Thank you, your Honor.
MS. COMEY: Your Honor, I need to correct the record. I apologize. There were some exhibits that the government flagged I think around 2:00 in the morning for your Honor that we have not had the chance to send to Mr. Wigdor where we identified 412 issues. So we will get them to him. That's what I wanted to note.
THE COURT: Understood. Separately, the other evidentiary issue that was raised, Ms. Slavik, are you addressing that?
MS. SLAVIK: I will be, your Honor.
THE COURT: Have you had discussions with the defense concerning that issue?
MS. SLAVIK: Not at this point, your Honor. As we noted in the email to the Court early this morning, given the timing, the government did not have the opportunity to meet and confer with defense about certain of the government's objections.
THE COURT: So we'll just take that up as it comes?
MS. SLAVIK: I suppose so, your Honor.
THE COURT: You've seen the exhibits?
MS. SLAVIK: That's right.
THE COURT: I have your email, I can access all the exhibits. Are there particular ones that it would be productive to address right now? You might get the high sign from Ms. Estevao that, don't worry about these because, at the very least, they're not coming in today or this morning.
MS. SLAVIK: That's right. And to be clear, defense did identify a couple dozen that they do expect could come in this morning. With respect to those particular items, besides defense exhibit 1380, the government believes defense needs to identify a non-hearsay basis for each of those exhibits.
THE COURT: These are in the chart in your email?
MS. SLAVIK: That's right.
THE COURT: All right.
MS. SLAVIK: Excuse me. For each message that the defense intends to enter. Your Honor, I'm happy to --
THE COURT: So you've raised the objection. So who's going to be addressing this from the defense's side?
MS. ESTEVAO: Your Honor, as Mr. Agnifilo flagged, these messages will all be admissible for their effect on the listener and state of mind. I think it will be burdensome to go message by message.
THE COURT: Generally speaking, that's what we're talking about?
MS. ESTEVAO: Exactly.
THE COURT: Meaning you're saying that, and to be very specific about, effect on the listener to demonstrate what? I understand effect on the listener, not coming in for the truth of the matter asserted, it overcomes any kind of hearsay issue, but what's the relevance?
MS. ESTEVAO: With respect to Mr. Combs's state of mind, it's his understanding of Ms. Ventura's willingness to participate in the sexual activity. And with respect to Ms. Ventura, the effect of his statements on her are relevant to the sex trafficking charge and that it goes to force, fraud, or coercion. There will be many, many messages that reflect the state of mind of the person sending that message because these are text messages sent in real time.
THE COURT: Ms. Slavik, there you have it.
MS. SLAVIK: Your Honor --
THE COURT: And with that, I will say these are going to come up and you may have particular objections that that rationale that was just expressed does not apply to a particular text message or text message chain that is introduced. That may happen. Can we make some headway right now? Are there particular messages that you think would not be consistent with that rationale offered by Ms. Estevao?
MS. SLAVIK: Your Honor, my colleagues are looking through these exhibits now. Let me bring up two points. First, in response to Ms. Estevao's observation that going message by message is burdensome — it is. However, that is the defense's obligation to get in this sort of evidence. The obligation is to go message by message. This is why the government needs exhibits like this well in advance, so that the government can pour through the messages and identify any objections that it has prior to the morning of cross-examination. This relates to my second point, which is a broader point about how this trial is to proceed. The government understands that we should have raised with the Court when defense only produced four exhibits by their exhibit deadline. I think it's fair to say that the government regrets not bringing that to the Court. However, what happened last night is that the defense dumped 400 exhibits on the government. Some of these exhibits were incredibly long. There were documents, proposed exhibits of 100, 200 pages. Many of these documents were internally duplicative. In other words, there were several portions of the same email exchange or text message exchange. Many of these documents that were marked by defense either substantially or entirely overlap with government exhibits, which were debated between the parties, and all objections or Rule 106 objections should have been raised at that point. This sort of dump of 400 enormous duplicative documents, this is high inefficiency. The government submits there really needs to be a solution so this doesn't continue happening throughout the course of the trial.
THE COURT: Ms. Estevao.
MS. ESTEVAO: Your Honor, as evidenced by the fact that there are duplicative messages in the defense exhibits just shows that we have been working tirelessly to mark exhibits in the past few days and in response to Ms. Ventura's testimony, and we do not anticipate introducing all 400 of them. Many of them, in fact, are marked simply for identification purposes so that we can refresh her recollection, something to that effect. And we also marked based on anticipated testimony from Ms. Ventura before we knew what her testimony would be, and so they're overinclusive in that respect, and we gave the entirety to the government. I'm happy to flag the first 20, 50 or so that I intend on using, if that will make things easier.
THE COURT: Let me take a step back. Mr. Agnifilo, I thought you were going to take this off. You said you were going to take this off my plate. I take it the parties have not come to an agreement as to how disclosures will be made.
MR. AGNIFILO: I think taking it off your plate, your Honor, is going to be a day-by-day process, and I'm going to continue to try to take it off your plate as the morning goes. I am. First of all, this is far and away the biggest witness in the case in terms of the volume of materials. There's no second. I mean, this witness stands by herself. It's sometimes typical, but a little unfortunate before the trial kind of gets into the rhythms and patterns that trials sometimes do. We had this witness early in the proceedings. That all being said, we have all been, we've been literally doing this all night until 3:00 in the morning, so we're trying to make it as easy as possible, which is why we flagged for them that these are the ones we really think are actually going to come up. Forget about the 400. That's so we don't mark something, put something in to refresh her recollection that we didn't give you and then that's the problem. So we're doing the best we can.
We're working with the government actually fairly closely. So what we will do and what I will do to try to take this off your Honor's plate on an ongoing aspirational basis, hopefully one I will meet, is we will give the government an idea of what's going to be coming up this morning, we'll work over the breaks to do the same on a going-forward basis so the government will know what's to come. And part of the problem, and this is a conversation I had with, I think it was particularly with AUSA Comey, I said, in other cases, what we've done is we've given the defense materials even before the direct was over if the prosecution team agreed to not prepare the witness on it. I think the concern of this prosecution team, and I respect the concern quite frankly, is it's hard to un-know something. And so maybe they wouldn't show it to the witness, but they would know it and that would have some effect. So I am trying to solve this --
THE COURT: At the very least, if you intend to put in exhibits the next day, you're going to disclose them. We talked about that yesterday and that's not going to be a problem?
MR. AGNIFILO: So, it worked out -- I think it won't be a problem. What I don't want to do, because I've spoken to the government about it, I said if we give you guys stuff during direct, can you assure me you're not going to prep the witness on it. They said they won't show it to the witness, but we can't un-know it. I respect the answer and it's an honest answer. What I can't allow us to be in the position of doing is to flag our defense theory in terms of the exhibits --
THE COURT: So what are you going to do? For today's purposes, the scheduling accommodated disclosing these exhibits last night.
MR. AGNIFILO: Yes.
THE COURT: Three binders worth of information, which I've gone through hundreds of binders of information, so three binders is doable, but I understand the concerns here. But as to other witnesses, there may be a direct in the morning and then a cross-examination in the afternoon. So you should just be thinking about how you plan to make disclosures in that context so we can address any issues ahead of time.
MR. AGNIFILO: And I will. And I will. And I think the information falls into different buckets. I think there's certain things that the courts that talk about the Rule 16 obligation, the defense case in chief being part of the cross, I think that stuff is usually a much smaller universe.
THE COURT: You're saying that if I were to say that the disclosures should be made the previous day, but that those exhibits that you'd be turning over, which would solely be the affirmative evidence on the part of the defense, could not be used to prepare government witnesses, then you'd be fine with that, you'd do it? Is that what you're telling me?
MR. AGNIFILO: Your Honor, anything your Honor orders me to do --
THE COURT: I'm saying, that would be something you're saying happened in a prior case?
MR. AGNIFILO: Yes.
THE COURT: By agreement, though?
MR. AGNIFILO: Yes.
THE COURT: And anything the parties can do by agreement, I can do by order, right?
MR. AGNIFILO: No question. Let's do this, let's get past this witness, which I think presents a universe of issues that we're not going to have with any other witness, and we will work this out. I will continue to do my best to try to take this off the Court's plate.
THE COURT: That is good.
MS. SLAVIK: Your Honor, just a couple of reactions. First, a practical point as to today's cross-examination. There are still several dozen, at least two dozen exhibits that the government does have objections to. They're noted in the chart. But as these exhibits are presented and potentially as the defense seeks admission of these exhibits, there will be many sidebars to resolve these issues that could have been resolved earlier. So, your Honor, the government asks --
THE COURT: Just the ones in the chart?
MS. SLAVIK: Those are the ones that the government understands may be used before the lunch break.
THE COURT: Just help me with the nomenclature here. So you say, for instance, hearsay overlaps with GX B-336, and then theres a paren, waived 106 objection?
MS. SLAVIK: Right.
THE COURT: What does that mean?
MS. SLAVIK: The hearsay objection, you understand that. With respect to the language overlaps with Government Exhibit B-336, the point there is that defense exhibit 1001 has overlap with an exhibit already in evidence. The government's point with respect to that is the government identified that Government Exhibit, 336 in this case, and the parties dialogued about whether the defense had any objections, and the defense in fact provided 106 objections and sought to expand those text message exchanges if they had a rule of completeness objection. The government's position is that in remarking a different portion of that very same text, they've waived any sort of 106 objection and the --
THE COURT: On what basis?
MS. SLAVIK: They should be precluded from offering that exhibit, your Honor.
THE COURT: If they have a basis for getting that exhibit in, what does that have to do with the 106 issue? Because 106 says, help me if I'm wrong about this, when you're putting in an exhibit or statement and they are putting in a completing statement, that comes in at the same time. And so that's why they're doing it in that way, because the statement can go in without the completing statement going in. But is there some authority that says that that then waives any effort to independently put in a portion of that document that is not being offered as a completing statement, but is independently admissible for some other reason?
MS. SLAVIK: Your Honor, the government's concern is efficiency. In conferring with defense about the government exhibits, that was resource and time intensive, and to have to do that process again is simply a waste of resources. It's incredibly inefficient.
THE COURT: Understood. So if it's efficiency, then that ship has sailed by the fact that none of these things were addressed in advance. That's what I'm trying to figure out, if it's an efficiency issue or a substantive issue. If it's a substantive issue, I think the substantive issue that's identified of all of these exhibits is the hearsay issue, which Ms. Estevao identified the basis for the admission of these documents, so I know that now. So when she tries to admit these exhibits, you will raise an objection if you have one, I will look at the exhibit. If I need a sidebar, we'll take one, otherwise some of these are just two, three pages and I should be able to look at them and figure out whether the objection is sound or not.
MS. SLAVIK: Some are quite short, others are not short. I also want to note for the Court that when defense presents a different portion of a Government Exhibit that was presented yesterday, that's potentially confusing to the jury because the government offered those exchanges, that exhibit for the truth as opposed to the purposes of defense offering the text messages. Your Honor, getting back to the efficiency concern, the government requests that the Court order defense to turn over exhibits that they intend to admit as they mark them. I think what happened last night really shows that there's no strategic advantage. Turning over 400 documents is not giving the government a strategic advantage into the defense strategy. This is purely efficiency and this is for the smooth running of the trial. Just to be clear, the reason that the government doesn't feel that it can commit to not showing defense exhibits to witnesses because, as defense has repeatedly said, these exhibits come from the government's discovery. So it's entirely possible that the government is showing what's marked as a defense exhibit to the witness in the normal course of witness preparation. So I don't think that the government can comfortably make a representation that it will not show defense exhibits that it might already be showing those witnesses.
THE COURT: I don't think Mr. Agnifilo is concerned with that. In the course of witness prep, if they have a stack of documents that they're using on a witness and it happens to be some of those exhibits are also in the pile that you provide to the government, you're not saying that they can't prep witnesses on those exhibits, right?
MR. AGNIFILO: I'm not saying that.
THE COURT: You're saying that you have other things that you are identifying, that's one category, you can't prep the witnesses on those other things. Separately, if there are exhibits that the government didn't know of and they see it in your stack and they go run and find them and haul them out and give it to the witness, that would also be improper. But I don't hear Ms. Slavik saying that's what they're doing.
MR. AGNIFILO: I don't hear her saying that's what they're doing either. What I heard the government say, and like I said, I appreciate the candor, is that if we were to give the government a certain number of exhibits, they would know what's important to us and might conduct some type of witness prep accordingly. These are not the issues -- we will figure this out.
THE COURT: You told me that yesterday and I'm pretty sure I said it needs to be figured out yesterday.
MR. AGNIFILO: I know.
THE COURT: It was not figured out. So I'll give you a grace period that if it's not figured out before the lunch break, so while you're there, try to figure out a workable solution, talk to the government, because we're going to just end this one way or the other. I've heard Ms. Slavik, I've heard you, it's now 9:31, I promised the jury we would bring them out at 9:30. We have a timing issue that we need to be very cognizant of. So last word, Ms. Slavik.
MS. SLAVIK: Just the very last word. It sounds like a lot of the evidence that the defense will offer, they'll seek to admit for the effect on the listener.
THE COURT: Yes.
MS. SLAVIK: The government just requests each time a limiting instruction that those statements are not being admitted for their truth, but for the effect on the listener.
(Continued on next page)
MR. AGNIFILO: I guess it depends on the actual basis of admissibility. If it's admitted under 803(3), it would be offered for the truth. If it is being offered solely for its effect on the listener, then that's a different story. I would object to the Court giving --
THE COURT: I am not going to be giving any limiting instruction on that basis. If there is a particular reason for a limiting instruction in a particular circumstance, we can -- a sidebar can be requested, and we can address it.
MR. AGNIFILO: Very good.
MS. SLAVIK: Your Honor, I think that's going to confuse the jury.
THE COURT: How is it not the situation, as with any document or exhibit that the government seeks to admit that is hearsay but not -- that could be hearsay but is not offered for the truth of the matter, the Court does not give the jury a limiting instruction in each instance. Rather, the way in which the evidence is used is indicative of the purpose for which it was put into evidence, and the jury will understand that. If Ms. Estevao were to suggest that certain things in the text messages actually happened, which would be inconsistent with the reason why they got them in in the first place, then you will be heard to give a limiting instruction or to strike certain testimony, etc. We can do that. If any time we put in a potentially hearsay statement that was not offered for the truth, and the Court would have to give the limiting instruction each time, that would seem to be not the usual practice in any court.
MS. COMEY: If I may, your Honor, that is what Judge Stein did in the Senator Menendez trial. And what he did was, the first time such a limiting instruction was requested, he instructed the jury on what it means for something to be admitted not for its truth, and then every time it happened afterwards he would just turn to the jury and say, not for its truth, just like my last instruction, and it was very quick and very efficient. It's because, otherwise, when a text message comes in, a document comes in, any juror would naturally think, I can read this and interpret it for its truth. I can assume it's offered for its truth. It's not intuitive to a juror to understand that a document being put in front of them is not being offered for its truth but for some other purpose. That's what we were asking for, and we wouldn't have objected if the defense had asked for that when we were offering things for their truth as well.
MR. AGNIFILO: My position, Judge, is your Honor's initial leaning on this, that if something comes up and the Court feels that it's important to tell the jury for this instance that this is being offered for the truth, that the Court will do that. I think it's going to be very apparent from the nature of the cross what this is being offered for. And we haven't -- that's been apparent even in the opening statements. We are not going to transform this evidence into something that it's not. It's about the nature of a relationship. It's about jealousies and it's about the things that people do and the way people react when they are jealous. It's heartland effect on the listener and not being offered for the truth. The jury is going to hear that in real time because of the nature of the evidence.
THE COURT: I have heard both sides. We will take it up at the lunch break. If at that point I need to make some limiting instruction, I'll be able to do so, and the number of exhibits that would be at issue would be small in volume, given that there is just about two hours worth of time that we have before the lunch break, in any event. With that, Ms. Johnson, let's bring in Ms. Ventura so we can save a little bit of time. I ask the courtroom deputy to make sure the jury is ready.
MS. ESTEVAO: Your Honor, may I approach to give your deputy a drive of the defense exhibits?
THE COURT: Of course.
(Jury present)
THE COURT: Members of the jury, welcome back. I promised you that we would start right at 9:30. I'm only eight minutes late. I apologize for that, but we are making some progress here. Ms. Ventura, you understand you are still under oath?
CASANDRA VENTURA: Yes.
THE COURT: Ms. Estevao, when you are ready, you may proceed.
MS. SLAVIK: Thank you. CASANDRA VENTURA, resumed.