THE COURT: Mr. Agnifilo, can you just start from the beginning and explain the concern. I'm just going back to the testimony so I can make sure I know where this begins. Ms. Steiner, remind me, can I get a proffer of relevance as to this line of testimony.
MS. COMEY: If I may, your Honor. This is relevant on multiple grounds. First, it is relevant to show the defendant's consciousness of guilt as to Count Two. We allege that this particular act of violence, like the many others that this Court has now heard about, were all evidence of a course of coercion and force that compelled Ms. Ventura to participate in the commercial sex acts that are alleged in Count Two. We allege this and many other acts that we expect to introduce in evidence at this trial, threatening those who witnessed that violence reflects his consciousness of guilt as to Count Two. In addition, this is evidence of Count One, the racketeering --
THE COURT: Stop there. Can you put a finer point on that. I'm looking at the testimony. So connect the dots for me.
MS. COMEY: So at the point where he calls in a meeting where the two women who witnessed his extreme violence that included dragging Ms. Ventura into a bedroom and beating her, his threats to those two witnesses telling them not to say anything and essentially threatening to harm them if they said anything reflects his consciousness that if they said anything, it could lead to him being prosecuted, charged, or otherwise investigated for his conduct against Ms. Ventura. So our argument is that his threats to witnesses of his conduct, that was part of the course of conduct charged in Count Two reflects his consciousness of guilt.
THE COURT: That's the specific episode in the recording studio the next day after the incident with the skillet?
MS. COMEY: Precisely, your Honor. The fact that he felt compelled to call this meeting, lock the door, and then give these explicit threats and then these flowers in an effort to both threaten and also bring these witnesses closer to him reflects his consciousness that what he did was wrong and what he did could lead to him being prosecuted, could lead to him being arrested, could lead to all sorts of negative consequences if these women spoke about what they saw. So we should be allowed to argue that he knew what he was doing was wrong, and one of the reasons the jury knows that --
THE COURT: Why does that go to Count Two given that the prior day's incident was not -- that was not a sex trafficking incident, right? It's a few steps removed.
MS. COMEY: It is a few steps removed, your Honor, but we allege that the entire course of conduct, the way that Count Two is charged is that all of the abuse created a culture of coercion and a culture of fear, and I think Ms. Ventura testified to that, that the violence was always in the back of her mind when she was told to do a freak-off, when she was told to follow the defendant's directions. I think that was Ms. Ventura's testimony, that the entire course of conduct, all of the violence was in the back of her mind and caused her to participate in the freak-offs.
THE COURT: I mean, I think what you're saying is that anything concerning Mr. Combs and violence is in the case?
MS. COMEY: No, your Honor.
THE COURT: Why not?
MS. COMEY: Anything concerning Mr. Combs and Ms. Ventura, abusing Ms. Ventura specifically, who is the victim alleged in Count Two.
THE COURT: All right.
MS. COMEY: So that's with respect to Count Two, your Honor.
THE COURT: Let's stop there. Mr. Agnifilo, I'm not trying to translate, I'm trying to make sure I understand the position. As to that specific incident that happened the day after what we heard about, given the witness's recollection of Mr. Combs's statements, the submission is it's relevant to Count Two because it's the day after, it relates to an incident involving Ms. Ventura and Mr. Combs. You heard the reasons from the government in terms of consciousness of guilt, threats, if there's disclosure, et cetera. So why wouldn't that bear on Count Two? Just focusing on this, because I know there's other things you want to address.
MR. AGNIFILO: It doesn't bear on Count Two because, as your Honor pointed out, Count Two is not an incident of sex trafficking. Count Two is an incident of what we opened on, which is domestic violence. It's not sex trafficking, it's not one of the charged offenses. It's too far -- it's not just that it's too far removed, I mean, there are these tremendous gaps in the evidence. What the government is trying to say is anytime Mr. Combs does something somewhat violent to Cassie Ventura, that anyone who sees it, you know, remote in time, the next day in a different place without Ms. Ventura there can therefore add evidence to this trial about how afraid they were.
THE COURT: Why didn't you bring a motion in limine on that issue?
MR. AGNIFILO: Because it just came up. I didn't know she was going to say that. I had no idea she was going to say that.
MS. COMEY: It's in the 3500, your Honor.
MR. AGNIFILO: Can I get a turn, Judge? It's unduly prejudicial. Rule 403 is meant for exactly this situation where this is a deeply problematically prejudicial piece of testimony, which is why I objected to it and why I moved to strike it because it has no role at this trial and it doesn't get to be tangentially connected with a series of intervening steps to something that, under some theory, is charged. This is wholly irrelevant. It's the irrelevant under 401, I don't think we even get to 403.
THE COURT: I think the government's argument is that they're saying that the freak-offs were as a result of force, fraud, or coercion. So if they can show that Mr. Combs, as to Ms. Ventura, imposed physical violence on her on a routine basis, then a jury can rationally infer that when these sex acts occurred, they also were a result of the same physical violence. So why isn't that an inference that the jury could draw, could permissibly draw? Not to say that they would or should, meaning I understand your argument you're going to prove otherwise or disprove the government's case, but why isn't that an inference that the jury could draw? And if it is, then why wouldn't this evidence be relevant to that?
MR. AGNIFILO: First of all, Ms. Ventura is on and off the stand, and she didn't mention this incident. So let's start with that. She didn't mention this incident. There's no testimony from her about being almost hit with a frying pan, being dragged upstairs and being beaten on the floor. She didn't say a word about it. So we know she's not afraid of that because she didn't mention it. So that's the first thing. The second thing is our position is this is just a drop-dead lie, this didn't happen, and the way we know it didn't happen is because Ms. Ventura didn't talk about it. And I understand your Honor's ruling.
THE COURT: As you are, I'm sure, going to forcefully present to the jury in your closing argument. But I understand your position.
MR. AGNIFILO: So just a few more things just so my whole position is on the record.
THE COURT: Yes.
MR. AGNIFILO: Ms. Ventura, we cannot sit here and say Ms. Ventura did anything because of this event because she didn't speak about it. She talked about some other events, we heard about some things that she remembered, and what role, if any, that played in other conduct. She didn't talk about this one. So this is now in the area of just rank speculation as to what this might mean, because in terms of evidence in the record --
THE COURT: How is it rank speculation if this witness was there? If you had an objection based on personal knowledge, then I would hear that, but, I mean, she's just testifying as to what she saw.
MR. AGNIFILO: It's speculation as to what effect violence, this event had on Cassie Ventura because she didn't testify about it.
THE COURT: If this witness is going to testify about that, then you can raise an objection.
MR. AGNIFILO: But my point is if the government's theory is when Cassie Ventura is subject to violence, that is something that's in her head that compels her to do some other thing that the government is saying illegal. My point is we can't make that connection with this event because Cassie Ventura does not have this event in her head because she's testified this entire week and didn't talk about it. So it's already on dubious ground to start with.
THE COURT: Well, no, because the government has to first establish there was force, fraud, coercion, they have to first to that and then they have to connect the dots to a commercial sex act, et cetera. But they have the burden to prove beyond a reasonable doubt that there was force, fraud, or coercion, so this goes to that.
MR. AGNIFILO: This doesn't go to that. That has to come from Cassie. Cassie has to be the one to say I felt force, fraud, or coercion from these things that happened to me, but she didn't talk about this thing. Let me get to the next several points. The second thing is I objected based on your Honor's ruling that this witness should not be permitted to talk about what she saw happened to Cassie and I lost and we moved on. So I didn't object to what she said happened to Cassie with the skillet and the eggs because your Honor made a ruling on that. But then we get to the next day and now Cassie is not there, so Cassie is not seeing any of this, Cassie is not aware of any of this from anything that we're hearing from the evidence, and we have this witness who's going on about I make people disappear and that means that that's a death threat and I'm very scared and all this stuff. And it's incredibly prejudicial and objectionable, which was why I objected and I moved to strike it because it has no place at the trial as being either relevant or certainly if your Honor deems that it has some relevance. And that's all I hear the government saying, that there's some relevance. It's certainly to be precluded under 403 as being unduly prejudicial given that the circumstances, as we understand it -- it would be a different story, I suppose, if Cassie had testified that this thing happened to me in the kitchen, it was traumatic, and that was some big issue in the case, that that was something that was abuzz among Mr. Combs and Cassie and others, but there is no testimony along those lines because Cassie's done testifying.
THE COURT: Understood. Ms. Comey, you had other points?
MS. COMEY: I did, your Honor. First, I'd like to note that I believe, and I've asked my colleagues to look for the specific cite that Ms. Ventura testified that she could not remember every specific act of violence that the defendant inflicted on her over 11 years with him. So I think based on that testimony, the government will ask the jury, I understand Mr. Agnifilo will ask for a different inference, but the government will ask the jury to draw the inference that this happened, she just couldn't remember it because there were too many assaults for her to remember this far along in the future. Second, in addition to being admissible under Count Two, it was also admissible under Count One. And I would direct your Honor to the indictment, and specifically to paragraph 12(j) and (k), which is on page 9 of the indictment. That alleges that when employees, witnesses to his abuse, or others threaten Combs's authority or reputation, Combs and members and associates of the enterprise engage in acts of violence, threats of violence, threats of financial and reputational harm and verbal abuse, that's on paragraph (j). And paragraph (k) says when Combs's authority or reputation was threatened by the possibility of negative publicity or legal or law enforcement action against him, and then there's an including, it says Combs and members and associates of the enterprise pressured witnesses and victims to stay silent and not to report what they experienced or knew to law enforcement.
THE COURT: Was this incident that we just heard about in any of the enterprise letters?
MS. COMEY: Since that it was not specifically mentioned in the enterprise letter, your Honor, but it was, I believe, encapsulated by paragraph 2 of the February 1st letter, which says that on multiple occasions between in or around 2004 and in or around 2024, the defendant assaulted, and threatened to assault, among others, his employees, acquaintances, and other individuals who witnessed his abuse of women or other illegal activity, and then provided a non-exhaustive list of examples. This was not included on that non-exhaustive list, but I believe that this paragraph, which was intentionally crafted broadly to capture the fact that there were many, many threats is captured by that paragraph and by the specific language of the indictment. The means and methods of the enterprise as we alleged was to threaten anyone who witnessed crimes. That's what we opened on to the jury, that has been our theory of this enterprise from the beginning of the case.
THE COURT: And remind me what year did these incidents that we just heard about happen?
MS. COMEY: 2009, your Honor.
MR. AGNIFILO: Your Honor, if I may.
MS. COMEY: And I have the transcript cite for your Honor. It's at page 799. "Q. Before we move on to another topic, Ms. Ventura, are the occasions we just spoke about all the times that Sean was physical with you? "A. No. "Q. Just to be clear, all the times he was physical with you during your approximately 11-year relationship. "A. Those weren't all the times, no. "Q. We just spoke about some of the times? "A. Some of the times, yeah. "Q. And were there any other injuries that you had as a result of physical abuse that we haven't discussed? "A. I don't think so."
MR. AGNIFILO: Your Honor, the point of the enterprise letter is to put us on notice. They didn't put it in the enterprise letter. Being encapsulated by some general statement is not what an enterprise letter is supposed to do. It's supposed to put us on notice of specific things that the government looks to prove as part of the enterprise. They didn't tell us about this.
THE COURT: Ms. Comey, in terms of understanding what Ms. Richard was going to testify about, did the defense have any notice of that?
MS. COMEY: Absolutely, your Honor. They've had detailed 3500 material. I would defer to Ms. Steiner on the specific language, but it includes this incident and other incidents where the defendant and at least one other member of the enterprise threatened her to prevent her from talking about abuse that she witnessed.
THE COURT: When was that 3500 material turned over?
MS. COMEY: Throughout the last few months. I'll work with Ms. Steiner to get specific dates for your Honor so that we can complete the record.
MR. AGNIFILO: Your Honor, that gets back to my initial objection. This is forced labor. If it's anything, it's forced labor. We just saw the picture of Mr. Combs and this witness being in the same band because the government's theory was that she was a victim of forced labor. Your Honor kept that out of the case. So there's no reason for us to think this would be coming in, in light of your Honor's ruling, and in light of there was nothing else in the enterprise letter. I would understand if the government said in the enterprise letter, this is relevant to the RICO. I would understand that and then I'd be on notice, but they didn't have it in the enterprise letter. And in terms of this is being a forced labor event --
THE COURT: I agree with you as to the second point that was raised. I think it turns on whether it's relevant to the sex trafficking charge, and you've addressed that and I need to think about that. If you have something else to raise on that point, I'm happy to hear it.
MR. AGNIFILO: Nothing that I haven't said.
THE COURT: And I agree with you that it's also related to the first issue, the initial issue that we addressed concerning the scope of Ms. Richard's testimony. In that regard, just to put a finer point on it, the defense had raised a late-breaking concern about the scope of Ms. Richard's testimony, and the question is whether certain testimony of Ms. Richard would be admissible given the Court's ruling at the April 25th conference. Now, the Court's ruling at the April 25th conference was very clear, and I've now reviewed the transcript from that hearing. First, in excluding the evidence in paragraph 5 of the government's April 20th letter, it was clear that the only thing being discussed at that hearing when we were discussing the enterprise letter and in the briefing relating to that issue was the RICO charge. That was the sole focus of the enterprise letter, was to inform the defense as to what evidence would be put in as to the RICO charge.
There was no application made concerning the admissibility of evidence, even the same evidence in the letter, if relevant to one of the substantive counts in the indictment. Second, if that wasn't enough, the Court clarified, after Ms. Johnson raised the issue, that its ruling was that the government could not argue forced labor as to Ms. Richard, but that she could be called as a witness and testify as to other matters. That's where we left things on April 25th. With that, the evidence cited in 5C and 5D of the April 25th enterprise letter, prior to the instant objection that Mr. Agnifilo raised, relates to the substantive 1591 charge. Now, before, Mr. Agnifilo, you raised the objection and made the motion to strike, I asked you that question whether it related to the substantive 1591 charge, and you didn't disagree with that at that time, and that was the basis for my ruling that 5C and D would be in as to the 1591 charge, but that A and B would be out because they did not relate to that charge.
MR. AGNIFILO: Can I clarify --
THE COURT: I'm going to finish and then I'll let you clarify. Nothing in the Court's order suggested that Ms. Richard would be precluded from testifying as to those matters as to that charge, meaning the substantive 1591 charge, since it was not at issue on the enterprise letter and was not addressed at the April 25th conference. To the extent it was addressed, the Court made clear that to the extent evidence would have been admissible and relevant as to the substantive counts. Those were fair game because they were relevant to other charges, they would be in the case in any event, and so there was no notice issue presented. To the extent there was any doubt about that, again, the Court clarified that the scope of the Court's ruling was that the government could not argue forced labor as to Ms. Richard, which was the new material in the enterprise letter. In any event, the concern about Ms. Richard's testimony and the Court's April 25th order was brought to the Court's attention at 3:30 p.m. before Ms. Richard was set to testify, and the defense was on notice that Ms. Richard might testify today because the Court made that clear yesterday when Ms. Comey raised the issue of scheduling. In addition, the defense would have known that Ms. Richard was likely to testify since they were in control of the cross-examination of Ms. Ventura, and so they would know the timing of that. So any request for clarification should have been raised well in advance, not minutes before the witness was set to testify. As Ms. Comey points out, the 3500 material relating to Ms. Richard had been turned over, we don't know the exact timing, but --
MS. COMEY: I do now, your Honor. I'm sorry. It was on the first production of 3500 in March of 2025. So the very first production contained 3500 material disclosing this incident.
THE COURT: So it was turned over months before this trial. It could have been raised in advance, if not in the motions in limine, which the Court set a deadline for precisely so that these types of issues could be raised, at least in any number, any one of the pretrial motions that the parties had filed and the Court ruled on. And this is emblematic, as I said, a few times today. I have a number of issues that have arisen over the last couple of days where issues could have, but were not raised in advance, and it is an independent ground to reject the defense's late-breaking request for exclusion of evidence relevant to the 1591 charge based on the Court's prior order. However, Mr. Agnifilo, you raised a separate issue, which is you don't think it's relevant to the 1591 charge.
MR. AGNIFILO: Or if it's marginally relevant, it's unduly prejudicial.
THE COURT: That's a fair objection for you to raise and it's not one that implicates the prior order. So that's an issue that I'll have to address, and I will do so before we reconvene on Monday. Ms. Comey.
MS. COMEY: May I be heard further, your Honor. First, with respect to the enterprise letter, I just want to be clear that I'm not aware of an enterprise letter being treated like a bill of particulars. And so the way this enterprise letter was crafted, the same way that I understand many enterprise letters are crafted in this district, was to give notice of the general types of other acts that would be introduced. For example, paragraph 1 of the enterprise letter says on multiple occasions between in or around 2004 and in or around 2024, the defendant and other members and associates of the enterprise possessed and distributed controlled substances and conspired to do so. It does not then purport to set forth every single time that happened. The same is true of the next paragraph, which covers the same 20-year period to describe threats of violence and violence. That letter was not purporting to set forth every single specific instance.
It was meant to highlight a number of them, and we did our best to highlight a number of them, but particularly, given that the indictment said that the way that the enterprise operated was by threatening people who witnessed the violence, it is unreasonable to preclude evidence of the way that this enterprise was conducted and its means and methods for failure to include every single threat that any witness at this trial might testify about. So that's my point with respect to the enterprise letter. Second, I've been reminded of a third basis for admission, and that is it goes to witness credibility, and it's to respond directly to a line in Ms. Geragos's opening that I'd like to read for your Honor. It starts at page 147 of the transcript and goes into page 148, and it says the following: As I've said with nearly every single witness in this case, when these people testify, ask yourself, why didn't anybody, if they were so scared, and if this was so hostile, ever call the police? Why not? I expect that the evidence will show you that the testimony against him, their former boss for many, not all, is vindictive or they are being subpoenaed to give it. That's a direct attack on witnesses who claim they saw violence like the violence Ms. Richard just testified about and didn't call the police, were entitled to respond to that by eliciting this testimony.
THE COURT: Understood. I will say as to the enterprise letters, this is where, on the other hand, having had the discussion concerning paragraph 5, that might have raised in the government's mind, well, let me make very clear that this particular allegation in 5D is relevant to other aspects of the RICO charge, and we can bring that in for that purpose unrelated to one of the substantive counts. Now you say, look, it's not like a bill of particulars, and that's a fair point. However, the way that these enterprise letters were crafted is that they are extremely specific in certain respects. And as to other respects, as you pointed out, sometimes they include non-exhaustive lists, and I can understand why the defense might have not been on proper notice and might have been misled by the specificity of some things in the enterprise letter when other things are, in your words, a non-exhaustive list. So this is where the same issue that I just addressed with respect to evidence that would be related to the 1591 charge, I think is, you know, what's good for the goose is good for the gander that comes back on the government's side on the RICO charge. Again, I think this comes back to the 1591 issue. You've given me two separate bases for why you think it's relevant to that charge, and I understand that and I'll think about it.
MS. COMEY: Your Honor, if I may, just as a policy matter, to incentivize the government to be less detailed in these enterprise letters I think would -- it is the outcome of a ruling like this. If what we're being told, as the government, is you need to be more general about the categories and not give specific examples, that creates perverse incentives. We were trying to be helpful to the defense, we were not trying to create a bill of particulars. If we had known that we would be held to this the way that prosecutors are held to bills of particulars, we would have pushed back, we would have presented more law, and we also would have crafted this differently. And so I am concerned about being held to this the way somebody would be held to a bill of particulars, your Honor.
THE COURT: I didn't say you were held to that, I said there is a combination of two things, which is the specificity coupled with the lack of specificity in other respects, and the fact that we addressed this issue specifically on April 25th, and there were clarifications sought by the government that did not raise this issue, and the same thing, the defense did not seek clarifications that they are now saying had misled them. Neither side raised this. I think the reason why neither side raised this is because they were trying to use these perceived ambiguities in a tactical way --
MS. COMEY: Absolutely not.
THE COURT: -- and they've done that. I'm saying both sides. I'm not pointing any fingers at any side in particular, but I'm saying this is, again, as I said, when I was talking about the April 25th issue, there have been a number of issues that have come up this week as opposed to before trial, despite the fact that we had several pretrial hearings, we had numerous pretrial motions, all of which we dealt with well in advance of jury selection. These issues are coming up now because I think both sides are doing what they are supposed to do, which is represent their clients in a zealous fashion within the bounds of the law. So I understand that, but I'm saying this is what happens, there are some ambiguities and I have to figure out how to navigate those and that's what we're doing here. I understand what you're saying about the enterprise letters in general, but I think it's this particular set of circumstances and there shouldn't be any larger inference drawn from it. Anything further, Ms. Comey, on this particular issue?
MS. COMEY: No. Thank you, your Honor.
MR. AGNIFILO: Nothing, your Honor, on this issue.
THE COURT: Ms. Comey, is there any separate issue?
MS. COMEY: I was hoping to get clarification from your Honor about the order that you issued earlier today. With respect to our witness list, we will obviously furnish that to you at the end of the day today. With respect to our witness order, I wanted to understand, usually, in my experience, we provide the order for the next few trial days and then, as trial progresses, inform the order for the rest of the trial because it can change. Was your Honor expecting that or --
THE COURT: That's fine. Are you able to, even on an ex parte basis, provide the Court with what you foresee for the government's case in chief? Would that be possible?
MS. COMEY: On an ex parte basis, yes, your Honor.
THE COURT: I think it would be helpful because there's a little bit of a veil here where I'm not seeing -- and I need to figure out just because of how long the trial is, I just want to make sure that everything is happening according to a proper schedule.
MS. COMEY: Yes, your Honor. And I'll tell you, in our view, we are right on schedule in terms of our perspective in terms of how this week went. So we think we're on track to keep our case to six weeks, we think.
THE COURT: Okay. Any other issues?
MR. AGNIFILO: Yes, Judge, two. One thing I want the Court to think about maybe over the weekend is while your Honor obviously precluded all of the forced labor stuff from this witness's testimony, this witness does have a lawsuit, pending lawsuit against Mr. Combs. I want to handle that -- I want to be able to ask about it. I won't ask the nature of it, but I think it's important that the jury knows that this witness may have a financial incentive to testify a certain way. So here's the question, and I will not bring up that it's a false labor lawsuit or it's a labor-related lawsuit or anything like that. I can keep my question very general, and I'm not asking for a ruling right now. It's just something that I want the Court to think about before we get to cross-examination on Monday.
THE COURT: I might not have to think about it.
MS. COMEY: If Mr. Agnifilo keeps that door closed, we will not walk through, and what he just described I think will keep the door closed.
MR. AGNIFILO: So if I just mentioned you have a lawsuit against Mr. Combs and keep it at that, that's fine, I can do that. The other issue, and this is a very important issue to us, as we sit here today, we only know of one witness that the government is calling in the future. That's just not good enough.
THE COURT: You're about to hear about some more witnesses.
MR. AGNIFILO: We know that the Court is. I'm not hearing that we are.
MS. COMEY: I'm happy to proffer the witnesses we think we'll call on Monday and Tuesday, your Honor.
MR. AGNIFILO: That's terrific news.
MS. COMEY: So next we expect we will call Kerry Morgan, David James, Sharay Hayes, Regina Ventura, Jourdan Atkinson, and Gerard Gannon. That should easily take us through the end of the day Tuesday and possibly into Wednesday. And they may not be in that order, I'm told, due to travel issues, but, generally, approximately that order, your Honor.
THE COURT: Can you tell us who the next witness is going to be? Is it going to be Kerry Morgan?
MS. COMEY: The next witness is Kerry Morgan, and that's the one we told them about last night. The order in which I just stated, it is the order in which I am hoping they will appear.
THE COURT: Understood. Mr. Agnifilo, just in case it was unclear, I will ask, if I don't ask, you have to remind me, I will ask the government at the end of every trial day, I'll do it in the morning if it's helpful and ask them who they are calling over the next couple of days. You are going to get that information so just in case that was unclear. As to the total roster, I need to know that just for scheduling purposes, given the length of the trial, to make sure there's not going to be any train wreck that I can't see coming in the future. That's why I asked for that submission.
MR. AGNIFILO: I understand, Judge.
THE COURT: Anything else?
MS. COMEY: Yes, your Honor, I understand from your Honor's ruling that the defense will now produce to us by 5:00 p.m. on Sunday any exhibits they expect to introduce on cross-examination for the witnesses that we expect to call on Monday.
THE COURT: Yes.
MR. AGNIFILO: Is there some reason why we can't know the witness roster that the Court knows? If the government -- we're not going to hold them to anything, nothing's going to change in the universe by the fact we know it, but it would help us, too.
MS. COMEY: I'm happy to exchange that for all of the rest of the defense exhibits, your Honor.
THE COURT: No. I'll think about that. I understand the request. Let me think about that.
MR. AGNIFILO: Thank you, Judge.
MS. GERAGOS: Ms. Comey sent us an email last night and I'm asking your Honor for clarification also as to your order. They agreed that if we agreed to provide all of the marked exhibits that we would plan to offer into evidence on cross-examination, that they would not show the marked exhibits to their witnesses unless they were already planning to review that material that was within our marked exhibits to the witnesses. We would ask that your Honor's order be modified to include that provision.
MS. COMEY: Your Honor, I had offered that to address a concern that defense counsel had raised. They never responded to that and it was an effort to negotiate between the parties. I don't think that we are required to agree to that and I don't think the Court needs to order that.
THE COURT: Well, have you agreed to that?
MS. COMEY: No, we had not. I sent an email saying, would you be open to this, and they never responded, your Honor. And I'm surprised Ms. Geragos raising without talking with us first.
THE COURT: If you work out an agreement, then I will make that part of my order. But right now, you don't have an agreement on that point. So to be very, very clear about this, the reason why I am doing this is because some of the exhibit issues that came up during Ms. Ventura's testimony were unacceptable, and I understand that it was the first week, there were issues concerning misunderstanding about Rule 16 and what it required and the timing and all those things could have been brought up earlier and it happened and we got through it and we're on schedule, which is great, but it can't happen again, and that's why we're doing that. Now, the government has made an offer, so I think there's an email perhaps, Ms. Geragos, that if you respond to it and say accepted, then you you've got your deal. But you made an offer --
MS. COMEY: I did, your Honor. I might want to withdraw that offer. And the reason is not because your Honor came out and made this order, it's because the way that the cross-examination of Ms. Ventura proceeded. Part of what was so inefficient was that the witness had not had the opportunity to review any of the lengthy exhibits and documents, and I think it would be prudent, not so that we can get some tactical edge, but I think it would be prudent for witnesses to be able to see the documents that they're going to be shown before they take the witness stand so we don't have to sit for minutes at a time in silence while they read these exhibits. So I don't think it makes sense, having now seen how the cross-examination proceeded, to agree not to show any defense exhibits to witnesses, especially when we're not going to be getting them days in advance, we're going to be getting them the night before. So I don't think it makes sense to have that restriction placed on us.
MS. GERAGOS: Your Honor, we have never been in a trial where we give our cross-examination exhibits to a government witness before they take cross-examination so they can sit there, speak to their lawyer about how to prep on it, speak to the government about how to prep on it in advance. We understand --
THE COURT: I'm going to accept the offer on your behalf.
MS. GERAGOS: Thank you, your Honor.
THE COURT: So the clarification that you made, that will be that. However, Ms. Geragos, it is on the defense to make sure that, during cross-examination of any witness, it is done in an efficient manner. There should be a binder provided to the witness. If there are going to be lengthy exhibits, then you should provide the witness and the government with those exhibits in advance. It can be during the direct, it can be, I'd like you to review this during a break. Whether or not they talk about it with the government, at that point, it's going to help the defense, especially if we're talking about text exchanges that were produced by the government to the defense. At that point, I'm not understanding what the strategic advantage is. You get the strategic advantage when you have seamless cross-examination because you don't have to wait for a witness to review text messages for 30 minutes. That helps you. So I'm not understanding the strategy issue, but it's on the defense.
MS. COMEY: Your Honor, if my offer has been accepted, I think I should get the terms that I proposed, which was 24 hours before the witness. So instead of the night before, I asked for it 24 hours, so it would be the morning before was my request so we would have 24 hours to deal with any exhibits. So if Ms. Geragos gets what I offered, I would ask for what asked for in exchange.
THE COURT: The bidding was closed. So we have the order from before, subject to Ms. Geragos's modification. The only thing that I'll ask, Ms. Geragos, is that you just work with the team to make sure that when we do cross-examination, the use of these text message chains, which are long, is done in an efficient manner. Can you do that?
MS. GERAGOS: I understand. I do think that with Ms. Ventura, the chains are long because it was an 11-year relationship. I don't foresee these as being as long text messages coming up really with many other witnesses. So I just want to explain that to the Court.
THE COURT: Of course. Anything else --
MS. SHAPIRO: Yes, your Honor. I just want to add that all of this would be a lot easier on the defense if we could get more than just two days of witnesses. If the government knows who the witnesses are next week, we can start over the weekend planning these crosses, getting the exhibits together so that everything can go more seamlessly. It creates additional problems if they're only giving it in tiny dribs and drabs if they already know who the next group of witnesses at least for the whole week. Why are we only getting two days?
MS. COMEY: Your Honor, respectfully, that point is not well taken, given the defense knew that Ms. Ventura would be one of the first witnesses for at least a month and clearly had not prepared the exhibits.
MS. SHAPIRO: My point is, going forward --
THE COURT: Let's not get into that.
MS. SHAPIRO: -- in making the trial more efficient --
THE COURT: Ms. Comey, can you help me, what is the reason why, in this district, disclosures are only made of the next day's witnesses or two days' worth much witnesses? What's the reason for that?
MS. COMEY: Your Honor, I think there are a few reasons. One is travel. We often have to reschedule and shuffle witnesses around, and so we don't want to be held to anything we have said. In this case, we have been held to things that we've said thinking that we were not, for example, setting out a bill of particulars. In addition, your Honor, we have some concerns in this case about witness tampering that we have flagged for your Honor. We have concerns about obstruction, we have concerns about publicly stating too many names on the record, we have concerns about witnesses being intimidated. So that's another reason why we are concerned about announcing witnesses on the record earlier than absolutely necessary. In addition, as your Honor pointed out, we have an obligation just like the defense to advocate zealously for our clients. And so part of it, yes, I will admit is a strategy and is a strategic advantage the same way the defense is like when the defense doesn't give us their exhibits.
THE COURT: I understand that, and I don't think those are compelling reasons not to disclose to the defense the next week's witnesses. I think that's fair. I don't think any of the concerns you raised would be implicated by that kind of disclosure. So the government should disclose to the defense the next week's witnesses. You don't need to do that right now, you can do that over the weekend so the defense has that before Monday.
MS. SHAPIRO: Thank you, your Honor.
THE COURT: Anything else from the defense?
MR. AGNIFILO: No, Judge. Thank you.
THE COURT: Anything else from the government?
MS. COMEY: No. Thank you, your Honor.
THE COURT: Everyone take a reset over the weekend, take a deep breath, made it through the first week. As Ms. Comey noted, we're right on schedule, so that's great. I do want to have just a brief word in the robing room with Mr. Agnifilo and Ms. Comey. We don't need the court reporter, so everyone can be at ease. Thank you very much. We'll see everyone next week.
(Adjourned to May 19, 2025 at 9:00 a.m.)
THE COURT: * * *