UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x¶
4 v. 20-cr-330 (AJN)¶
5 GHISLAINE MAXWELL,¶
6 Defendant. Hearing¶
7 x¶
8 9 New York, N.Y. November 23, 2021 9:40 a.m.¶
10 Before:¶
11 HON. ALISON J. NATHAN¶
12 District Judge¶
13 APPEARANCES¶
14 15 16 17 18 DAMIAN United States Attorney for the Southern District of New York BY: MAURENE COMEY ALISON MOE LARA POMERANTZ ANDREW ROHRBACH Assistant United States Attorneys¶
19 20 21 22 HADDON AND Attorneys for Defendant BY: JEFFREY S. PAGLIUCA CHRISTIAN R. EVERDELL LAURA A. MENNINGER -and-BOBBI C. STERNHEIM Attorney for Defendant¶
23¶
24 25¶
UNITED STATES OF AMERICA,¶
4 5 6 MS. COMEY: Good morning, your Honor. Maureen Comey, Alison Moe, Andrew Rohrbach, and Lara Pomerantz for the government.¶
7 THE COURT: Good morning, everyone.¶
8 9 10 MS. STERNHEIM: Good morning. Bobbi C. Sternheim, Jeffrey Pagliuca, Christian Everdell, Lara Menninger for Ghislaine Maxwell, who is present at counsel table.¶
11 THE COURT: Good morning, everyone.¶
12 MR. PAGLIUCA: Good morning, your Honor.¶
13 THE COURT: Please be seated.¶
14 15 16 17 18 19 20 21 22 All right, we are here for a final pretrial conference in this matter, jury selection to be completed first thing on Monday morning, the 29th. I did note, counsel, after we had the last process, at the recommendation of the jury department, we have kept the unexcused jurors on — the unused jurors at this point on call in case we need them, and once we have our jury finally selected on the 29th, the jury department will excuse the remaining jurors. That was one note I wanted to make.¶
23 24 25 For purposes of today’s conference, there are a few — I have tried to give written guidance on as much as I could on the outstanding issues. There are a few remaining issues that¶
(Case called)¶
THE CLERK: Counsel, please state your name for the record, starting with the government.¶
4 5 6 7 I got supplemental briefing on to discuss. The motion in limine 7 of the defense, which is Government Exhibit 52, I got supplemental briefing on that; supplemental briefing on a few exemplars of co-conspirator statements; the remaining disclosed defense experts perhaps, so we’ll discuss that. I have a few other things just to tick off the list, and go over logistics for Monday, and take your questions or hear your issues.¶
8 Ms. Comey, anything before we get underway?¶
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 MS. COMEY: Yes, your Honor. We do have a few issues to raise. The first is that unfortunately I do think we will need to ask for a briefing schedule to preclude cross-examination on certain topics of government witnesses. On Friday afternoon, the government conferred with defense counsel. We presented about a dozen topics that we believe are clearly improper topics for cross-examination. Yesterday defense counsel told us that they’re not in a position to tell us that they will not cross on any of those topics. Because there are many of them and because they include things like criminal convictions that are beyond the scope of 609 and other personal information that might either identify anonymized witnesses or embarrass witnesses, we would ask to be able to submit briefing rather than raise those issues on the public record.¶
24 25 THE COURT: You can, but not until you have further discussion and narrow disputes, because that’s going to happen.¶
4 5 6 7 8 9 MS. COMEY: Your Honor, I can assure you we’ve attempted to. We raised issues that we thought are clearly not proper ground for cross-examination, like arrests as a juvenile for curfew violations, misdemeanor convictions that are more than ten years old, things that have nothing do with credibility, and the defense told us that they cannot assure us that they will not raise those issues on cross. We obviously need a pretrial ruling so that we know whether we have to raise those things on direct to draw the sting.¶
10 11 12 13 14 MR. PAGLIUCA: Your Honor, this is not a surprise to me that this is being raised, but this is a surprising issue, I think, to be raised. The list, laundry list of things that the government wants to talk about include things that are clearly within the rules, and —¶
15 16 17 18 19 20 21 22 23 THE COURT: I don’t want a speech. What I want, it sounds like they’re saying there are things that are clearly outside of the rules, in their view. And you say there are things that are clearly within the rules. You’ll have a mature, reasonable discussion, and come to some agreement where agreement can be had. When you have disputes that are good faith and reasonable and based on available interpretations of the law, you’ll submit to me in writing and I’ll be happy to resolve it.¶
24 25 MR. PAGLIUCA: That’s totally fine, your Honor. I guess the problem is — and this is where we’re going to end¶
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up, which is why I’m telling you this now — we can’t predict what people are going to say on either direct or cross-examination. And of course we will follow the rules. But here’s an example: If someone were to say on direct examination, “I’ve never been in trouble in my entire life,” well, then that opens up the whole panoply of what is or is not permissible under Rule 609.¶
And so that’s where we end up here. And I think, frankly, these are not issues that need to be briefed. These are issues that simply come up during trial, and if someone does something that one side or the other thinks is not appropriate, there’s an objection and it’s resolved. I can assure you that we are not going to do anything that is outside of the rules, and if we think it’s even close, we would of course approach and address the issue with the Court.¶
If the government wants, I am happy to confer more about this. If the government wants to brief it, they can. But I think we end up in that place, which is, these are trial-time decisions.¶
THE COURT: That may be true, and I suspect if you have a conversation where the government says, you can’t raise under the rule a juvenile conviction for — what was it?¶
MS. COMEY: A curfew violation, your Honor.¶
THE COURT: — a curfew violation, and you say, well, of course it could be that they say, I’ve never been in trouble in my life, I think you can come to point of agreement, can’t you?¶
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MS. COMEY: Yes, your Honor. Indeed we told the defense that we by no means mean to bind the defense against raising an issue that comes up during direct. We just wanted to know ex ante as things stand, do they have a good-faith basis to believe that there’s a grounds for cross-examination along those topics.¶
THE COURT: It sounds like, I bet, this conversation could happen without me and everybody else in this room. But I’m glad to be here for you.¶
MS. COMEY: Thank you, your Honor.¶
MR. PAGLIUCA: Thank you, your Honor. Thank you.¶
THE COURT: What’s next?¶
MS. COMEY: Your Honor, the other issue was, we’ve become aware recently of a number of subpoenas that the defense has served on witnesses. There’s one in particular that we wanted raise at this juncture, which is, the defense has served the attorney who currently represents Minor Victim 4 with a subpoena, seeking his testimony at this trial. We’ve attempted to confer on this issue because the government has no idea what admissible testimony that attorney could possibly offer at this trial that would not be covered by attorney-client privilege. We would move to preclude it, but we cannot fathom what the testimony would be. And so we’re raising it with your Honor¶
4 5 6 MR. PAGLIUCA: Well, first, your Honor, I don’t think that it’s appropriate for me to have to discuss defense strategy in this context. However¶
7 8 9 THE COURT: That’s fine. There will be no — without briefing, you will not call an attorney for a witness, period. I’m happy to see briefing, but until that happens, you won’t.¶
10 MR. PAGLIUCA: That’s fine, your Honor.¶
11 THE COURT: OK.¶
12 MS. COMEY: Thank you, your Honor.¶
13 14 15 16 17 We had one other question for your Honor, which is whether the Court intends to, in its preliminary instruction, inform the jury that certain witnesses will be testifying under pseudonyms. We wanted to know that so that we understand how to approach that issue in our opening statement.¶
18 19 20 21 22 23 24 25 THE COURT: I think we have a pending proposal, with the two sides having slightly different views as to what language to use for those instructions. I haven’t dealt with that yet, but I will. And then I guess the second question you’re asking is, will I include that in my preliminary instructions as opposed to at the time the first witness is called. It should come before opening, I presume, because you’ll refer to witnesses pursuant to pseudonyms during¶
because of the obvious issue that would arise with attorney-client privilege and with Minor Victim 4’s right to representation of counsel.¶
opening.¶
4 5 6 Defense, any objection to me including, in pre-opening preliminary instructions, what I determine is an appropriate instruction regarding witnesses testifying under pseudonyms?¶
7 MS. STERNHEIM: No.¶
8 THE COURT: Thank you.¶
9 10 MS. COMEY: Thank you, your Honor. There was just one more issue that I believe Ms. Moe was going to address.¶
11 THE COURT: Thank you. Ms. Moe.¶
12 13 14 15 16 17 18 19 20 MS. MOE: Thank you, your Honor. I’m going to bring to the Court’s attention an issue that came to our attention regarding prospective Juror No. 93. We learned, following voir dire, based on publicly available information, that that prospective juror is an attorney at a financial institution. At trial, there will be a witness from that financial institution. He is more than a records custodian in the sense that he is an executive director at that financial institution. And he’ll be talking about certain financial transactions.¶
21 22 23 During our meetings with this witness, an attorney for the financial institution had been present along with outside counsel for the financial institution.¶
24 25 So we want to just bring that to the Court’s attention. We flagged that for the defense as well.¶
MS. COMEY: Precisely, your Honor.¶
THE COURT: OK.¶
4 5 6 7 MS. MOE: Your Honor, I think at a minimum we propose some additional follow-up guess for the juror about her role, whether she interfaces with folks dealing with compliance, which is within the scope of what this witness does, whether there would be any issues about hearing testimony about the financial institution where she works.¶
8 9 10 11 12 13 14 15 16 We have not flagged for our witness that there is a juror, of course, who works with the institution, so it’s hard for us to gauge whether they may have overlapped or whether they would recognize one another in the courtroom. So I recognize it would be difficult to probe this issue without creating an issue, but we think at a minimum a question about sort of her role and any issues about being fair or discomfort about witnesses who are testifying from the financial institution might address this issue.¶
17 THE COURT: Who will I hear from?¶
18 MS. STERNHEIM: You’ll hear from me, Judge.¶
19 20 21 22 23 24 25 I think it is a little late. The publicly available information would have revealed that there are other people who are in that same institution or have been affiliated with that institution, some of which were excused, and at least one that is still here. The government can exercise a challenge if it wishes. But I think it’s unnecessary. And it flags something inappropriately at this stage of the game. It will highlight¶
THE COURT: What do you propose?¶
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something, and this witness is technically, I believe, a records custodian. He may be of a higher level than your standard records custodian, but his testimony is sort of ancillary to the charges in this indictment.¶
The purpose of me asking the parties to submit a list of entities or addresses that may be mentioned during trial was to capture this sort of issue. It sounds like the government failed to include a financial institution that will be mentioned during trial.¶
I agree. It’s too late to go back and redo that, having failed to do so. So I think if you think it’s an issue, it’s a peremptory.¶
What else?¶
MS. COMEY: No other issues, your Honor, other than the outstanding ones your Honor outlined.¶
THE COURT: OK. Any — go ahead.¶
MR. PAGLIUCA: Yes.¶
Your Honor, I wanted to talk a little bit about use of impeachment material during trial. I have a concern — well, what I am proposing is that if we are going to be either impeaching or refreshing recollection of a particular witness, that we be able to do it electronically. I think that that would be fine, and that’s typically how we would do this. The problem with using impeachment material during the course of¶
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this trial in paper format is that there’s just too much paper involved. And the plan would be, if we’re going to be impeaching the witness, you know, on an inconsistent statement or something else, that we would simply display that electronically to the Court, counsel, and here at the podium, and the witness, do the impeachment, and then take it down. These would not be things that would be shown to the jurors. But I want to make sure that that’s an acceptable process to the Court.¶
THE COURT: There are times when the witness will want to see the full document, so you’ll have those available should they ask for them or need them. But it’s certainly consistent with standard practice to show the document electronically, and, again, say, you want to see more, either the whole document in paper or the page before or after, you’ll accommodate that. But otherwise, I don’t see an issue.¶
MS. MOE: Yes, your Honor. As the Court may have recalled, when the parties submitted a joint proposal with respect to issues regarding witness anonymity, one of the joint proposals was that exhibits under seal which contain identifying information or victims or other relative witnesses would be handled in paper copies with binders for the jurors?¶
THE COURT: Because the screens are visible.¶
MS. MOE: Exactly, your Honor. And so to the extent any of those exhibits fall within that category, our view is¶
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that those should be treated similarly. To the extent there’s an exhibit that can otherwise be shown electronically, like other exhibits that can be shown electronically, of course we have no objection to that. But for documents that contain identifying information, given the location of the jurors’ screens in this courtroom and how they would be visible to members of the public, we would request that they be treated like other sealed exhibits.¶
MR. PAGLIUCA: These are not exhibits, your Honor, so they won’t be admitted into evidence.¶
THE COURT: Same issue, right?¶
MR. PAGLIUCA: Yes.¶
THE COURT: Whatever they are, we’re protecting anonymity, which is my order. Screens are visible. Should that be an issue with respect to anything you want to show for refreshing recollection, why not show that on — you’ll show that on paper.¶
MR. PAGLIUCA: It’s an unwieldy and impossible project here, your Honor.¶
THE COURT: To use paper?¶
MR. PAGLIUCA: To use —¶
THE COURT: The way trials have been done for a very long time?¶
MR. PAGLIUCA: It is likely there will be — there are thousands of pages of potential material that will be at issue.¶
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And in order to accommodate paper, there will be, I think, substantial delays during the process. It will require handing out of copies.¶
THE COURT: Get to the solution. So the problem we know is that I have ordered anonymity with respect to some witnesses. The second portion of the problem we know is that the way the courtroom is constructed, screens are available that may show names or identifying information, which I’m not permitting to be made public. What’s the solution?¶
MR. PAGLIUCA: Well, they won’t be shown to the jurors, so that’s not an issue.¶
THE COURT: We’re not keeping the names from the jurors, so that’s certainly not an issue.¶
MR. PAGLIUCA: Impeachment information won’t be on the screen to the jurors because it’s not an admitted exhibit. OK.¶
THE COURT: Right. I think the issue is the screens on counsel’s table.¶
MR. PAGLIUCA: I don’t believe — and I was trying to see this from the back of the courtroom — I don’t believe that you can see, you know, a paper document from the back of the courtroom when it’s up on the screen.¶
Certainly, we could turn off these screens over here, or, alternatively, I can give the government paper copies and the government can look at paper copies. So that takes care of the problem. And then that way, we don’t have to be¶
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displaying — we don’t have to be approaching the witness and we can move seamlessly through this.¶
These are all documents that are in the government’ possession to begin with, your Honor. These are not things that are unknown at this point.¶
THE COURT: Again, that seems off topic. But so it’s manageable to give the government paper.¶
MR. PAGLIUCA: It should be.¶
THE COURT: Any reason you can’t — how about this. Prepare it as a binder for potential use, even if it’s not the full document, but anything that you might use — that you think you might use. As you know, it’s a known quantity. You have it in a binder and you could direct them to turn to it. If it turns out there’s something that you do want to show that you didn’t put in the binder, we’ll deal with that and you’ll be able to show it, either by turning off the counsel screens and showing it on the monitor or we’ll hand up paper at that point.¶
MR. PAGLIUCA: I think there is going to be a real problem, your Honor, to do it like that. It just¶
THE COURT: Help me understand this as a practical matter. You will have your outline for your cross, and you’re going to know enough to tell your paralegal, Put up document number so-and-so, page 7. And that’s how your paralegal is going to pull that up and put it on the screen, right? Why¶
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can’t you just have put that in a binder, a paper binder, in advance? And as I said, if there’s something that comes up or you realize you neglected to put it in, we could deal with that. But by and large, you’re directing them to a tab in a binder, just like you would direct your paralegal to show a particular document on the screen. What am I missing?¶
MR. PAGLIUCA: Well, we can try that, your Honor. And we’ll see how it goes. I mean, we’ll be prepared to do it both ways.¶
THE COURT: And I assure you, if for some reason there’s something you want to show that’s not in the binder, we will work that out and you won’t be precluded from showing it. But to the extent you’ve prepared your cross outline and you know what you’re going to ask about, just like you would call it up, just have that in a tabbed binder so they can turn to it.¶
And, again, to be completely clear, should there be anything you need to do that wasn’t in the binder, you’ll be able to do it and we’ll either hand up paper in those few instances or we’ll turn off the table monitors and show it on the screen.¶
MR. PAGLIUCA: OK, your Honor. Thank you.¶
What else?¶
No? OK.¶
4 5 6 7 8 9 10 11 12 13 So defense seeks to preclude, in motion in limine 7, Government Exhibit 52. I’m not going to preclude, but I do think this needs to play out at trial. I need to hear the witness testimony and I’ll allow voir dire, given factually what I understand to be the issues surrounding this item, and as I understand it — the witness is going to — tell me if I have this wrong. The anticipated testimony, Ms. Comey — this is for you, Ms. Comey — the anticipated testimony is that not this exact book but a similar-looking book, characteristically similar, binding, pages, font, etc., was seen by this witness, and she can attempt to authenticate by describing the similarities between what is Government Exhibit 52 and what she saw. Is that the idea?¶
14 15 16 17 18 19 20 MS. MOE: That’s correct, your Honor. Because this witness has not been informed about how that exhibit came into the government’s possession, I just wanted to clarify one small thing, which is that this witness won’t say that this isn’t one of the — you know, in particular, that because she recognizes it as one in a series, but doesn’t know how it came to the government’s possession, it’s just identifying it in that way.¶
21 22 23 24 THE COURT: So your understanding is, by the time frame, this wouldn’t have been the one that she saw, but she won’t know that because you anticipate her testimony to be there were several versions of these and they are all the same.¶
25 MS. MOE: That’s correct, your Honor.¶
THE COURT: So I will allow — I don’t know if it’s 4 5 6 7 8 admissible. I think, from what I see, it’s a close question. It’s going to turn on the testimony. So I’ll allow that testimony to take place. I’ll allow voir dire. And then I’ll make a ruling, depending on how that goes, as to whether it meets the threshold for admissibility, and the questions that have been raised go to weight. But as I sit here, I don’t know until I hear that testimony.¶
9 10 11 12 13 14 I do think that the government needs to make it available for inspection to the defense, and so you’ll work out the logistics of that pretrial. To the extent that they want a forensic expert to look at it, a document forensic expert to look at it, you’ll work out the logistics to make it available. OK?¶
15 MS. MOE: Yes, your Honor.¶
16 THE COURT: Any questions about that?¶
17 18 19 MR. PAGLIUCA: No, your Honor, other than one of my requests was that the actual document be here at trial and not a photocopy of one page.¶
20 21 22 23 MS. MOE: Yes, your Honor. The actual exhibit will be here in the courtroom at trial. And we have already made that exhibit available for the defense for inspection. They have personally inspected it, I believe that was on November 1st.¶
24 25 THE COURT: Great. I’m happy to hear that. And not just the page but the whole book.¶
4 5 6 7 MS. MOE: That’s correct, your Honor. We made it available for inspection this summer. We notified the defense in a letter that it was available for inspection. The defense asked for an inspection the week before our conference on November 1st. I made it available for inspection that day. They personally inspected it. We’re happy to continue to make that available for inspection to the defense.¶
8 9 10 THE COURT: I’m very happy to hear that. Thank you. i appreciate that. And I think that takes care of that for now.¶
11 12 13 I guess one question: I think, given the uncertainty as to admission, the government should not mention it in its opening.¶
14 MS. MOE: Of course, your Honor. Thank you.¶
15 THE COURT: Anything before we move on?¶
16 MR. PAGLIUCA: No, your Honor. Thank you.¶
17 18 19 20 21 22 THE COURT: So next is the admissibility of co-conspirator statements. I do appreciate the efforts to come to reasonable agreement, of course, with the defense preserving objections as to ultimate admissibility. Based on the law, of course the government has to make the showing that’s required during the course of the trial.¶
23 24 25 There are two statements that are exemplars that remain in issue, and I think, starting with the second one first: so the second one, it seems to me, is not being offered¶
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for the truth, that it is being, as I understand it, being offered for the effect on the listener, and so really there is — it’s a potential relevance issue and not a hearsay issue. I think this needs to play out at trial, but tell me if anybody disagrees with that.¶
MS. COMEY: We agree, your Honor.¶
MR. PAGLIUCA: Agreed.¶
THE COURT: And then the other one, the government is seeking admission pursuant to 801(d)(2)(E), and in question is whether the statement was made during the course of and in furtherance of that conspiracy.¶
I don’t think I have enough to answer that before me. So I can either hear more now or let it play out at trial.¶
MS. COMEY: I think it should play out at trial, your Honor.¶
MR. PAGLIUCA: Yes. I agree, your Honor.¶
THE COURT: Great. Thank you. All right. That takes care of that.¶
Next are the four additional individuals that the defense disclosed as potential experts. So we’ve got Kelso and , who, it strikes me, are primarily potentially fact witnesses and not expert witnesses, with the exception of that Kelso tes — so I think first, let’s see if we get agreement on: would be fact testimony, correct?¶
MR. ROHRBACH: That’s the government’s understanding,¶
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your Honor, although it’s not clear from the expert notice whether they anticipate going beyond pure fact testimony.¶
MR. EVERDELL: Your Honor, at this point we anticipate him being a fact witness.¶
THE COURT: Summary and fact witness.¶
MS. MENNINGER: Yes.¶
MR. EVERDELL: I think.¶
THE COURT: Doesn’t sound like expert to me, so I don’t think there’s anything to do on that now.¶
Kelso also seems largely anticipated to summarize data documents and photographs on electronic devices either as a fact witness or summary testimony under 1006. And except Kelso’s testimony that may cross over into expert testimony is, I’m going to quote from the notice, “generally about computer forensic principles associated with the creation of document storage and retrieval of digital documents and photographs, including the limits to the information that can be gleaned from the metadata.”¶
I don’t think there’s been a sufficient disclosure at this point pursuant to Rule 16. The disclosure doesn’t say what Kelso’s opinions actually are about, as to any of these topics, or provide any basis for those opinions. So certainly further disclosure would be necessary before I would allow expert testimony. Is that anticipated?¶
MS. MENNINGER: Your Honor, this is my witness. He¶
4 5 6 7 8 9 10 11 12 13 14 would largely be in rebuttal to a government witness. Mr. Flatley was disclosed by the government for similar purposes to talk about the retrieval of metadata from some of the devices that were seized from Epstein’s home. To the extent Mr. Flatley talks about the retrieval of metadata or what that metadata means, Mr. Kelso may then be a rebuttal witness, but we don’t know yet from the government’s disclosure exactly what documents Mr. Flatley intends to refer to. And so that’s why there isn’t more information about what Mr. Kelso might or might not say. Frankly, we think it would largely be factual. It may stray into areas about metadata if Mr. Flatley offers opinions along those grounds, and we think that it’s not accurate. If that’s true, we can provide an updated disclosure, once we’ve heard Mr. Flatley’s testimony.¶
15 THE COURT: Mr. Rohrbach.¶
16 17 18 19 20 21 22 23 MR. ROHRBACH: Your Honor, the exhibits that Mr. Flatley is going to talk about are now marked as government exhibits, and the defense has Mr. Flatley’s 3500 information as well as examples the government has pointed to where Mr. Flatley has offered similar testimony in other cases in this district and in the Eastern District. So I think the government has given ample notice about what Mr. Flatley will testify about.¶
24 25 But as a more general matter, to the extent that the defense provides supplemental notice at some point about¶
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whether they’re going to cross the line from pure fact testimony to expert testimony, I think we can deal with it at that time.¶
THE COURT: OK. What I would just say is, if your expert, looking at the 3500 material and the disclosure, has different expert views, you need to notice those now. But to the extent it’s something that comes out at trial, that couldn’t have been anticipated, then you can notice down the road.¶
So just in terms of what, if your expert has testimony now that’s different from what’s anticipated in light of the government’s notice and the marked exhibits and 3500 material, when would you like to provide additional notice?¶
MS. MENNINGER: Your Honor, some of the “marked exhibits” are a placeholder for an entire hard drive that has any number of documents on it. If the government is now representing they will only be referring to the documents that are separately marked and not to exhibits that say “hard drive 58,” “hard drive 85,” “hard drive 96,” we could do that, but they haven’t made that representation.¶
THE COURT: Fair enough.¶
MR. ROHRBACH: Those drives are marked for identification for authentication purposes, but to the extent that the point is that Mr. Kelso is going to testify about general principles associated with the creation of documents¶
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and the extraction of metadata as his expert testimony, Mr. Flatley’s views on those questions should be available through the 3500 material and through his other expert testimony, so there’s really no need for any sort of further identification by the government of anything before Mr. Kelso should be able to let us know his views on those questions.¶
MS. MENNINGER: Your Honor, the 3500 material doesn’t say Mr. Flatley is going to describe the extraction of user data this way. He’s talked about the fact that he has observed the user data, but he hasn’t talked about the methods that he’s used it. It’s not that type of 3500 material from the government. So I don’t agree that we could tell from what they have provided thus far exactly what Mr. Flatley’s testimony is going to be.¶
And frankly, they said Mr. Flatley was largely a fact witness as well. So if I’m understanding now that they’re intending to offer something along the lines Mr. Kelso is, they didn’t provide sufficient notice for Mr. Flatley’s expertise in that area either.¶
THE COURT: Well, I have to go back and look at the notice. But are you using Flatley as an expert?¶
MR. ROHRBACH: We think Mr. Flatley is primarily a fact witness, but the line between a fact witness in a setting like this and someone testifying on the basis of their expertise is not well settled, and so we’ve given expert notice¶
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in an abundance of caution, and also identified for the defense four other cases in which Mr. Flatley has testified on a similar topic so they can see —¶
THE COURT: That includes his ex— to the extent it crossed over into expert opinion about methodology, for example —¶
MR. ROHRBACH: If I may have a minute, your Honor.¶
Mr. Flatley is qualified as an expert in some of those four cases, which highlights the vagaries of this line, and it provides information about the bases of his opinion about these topics.¶
To the extent that there is an issue that is not raised, either in the government’s expert notice or 3500, or in the similar exemplars we’ve given the testimony, that might be something that’s outside the bounds of the government axe pert notice, depending on exactly what it is.¶
THE COURT: So I think what we need to do is, you have your expert look at the testimony that he’s provided. If he’s got some differing expert opinion as to forensic principles or creation of documents or storage and retrieval of digital documents, or what information can be gleaned from metadata generally, I think you should notice those opinions. But absent that, we’ll let it play out. OK.¶
MS. MENNINGER: Certainly, your Honor. And obviously if Mr. Flatley attempts to offer opinions during his testimony¶
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that are not disclosed, I will raise that with the Court at that time.¶
Just with respect to what you have as anticipated opinion about those subjects, when will you — give me the date by which you’ll tell me if your expert has different expert opinions to offer with respect to those areas.¶
MS. MENNINGER: This Saturday, your Honor?¶
MS. MENNINGER: And I don’t I guess what I’m hearing is, the only opinions he may offer are those disclosed in other cases. They haven’t disclosed an opinion from this case. So we will look at those other trial testimony, and any opinions in those testimony that our client — our expert disagrees with we can provide them by this Saturday.¶
THE COURT: That sounds very reasonable to me. OK?¶
MR. ROHRBACH: Yes, your Honor. Although we know that, again, in addition to the other — his testimony in other cases, we would point the defense expert to the 3500 material as well in this case and the government’s exhibits.¶
THE COURT: Well, I mean, your notice should provide the opinions that he’s going to offer. Does it?¶
It’s not a scavenger hunt. You’re required, as the first matter, to provide, pursuant to Rule 16, the opinions that he’s going to offer. Have you done that?¶
MR. ROHRBACH: Yes. The government believes that its 4 5 notice, in combination with its 3500 materials and the cases it’s pointed the defense to, should give the defense an understanding of Mr. Flatley’s opinions, to the extent that they’re expert opinions at all and not just fact opinions.¶
6 THE COURT: Well —¶
7 8 9 10 11 12 MR. ROHRBACH: Your Honor, my point is that Ms. Menninger says that she would have her expert review Mr. Flatley’s testimony in other cases to see if there are opinions he disagreed with, and I just wanted to clarify that the defense expert should review the material the government has provided them.¶
13 14 THE COURT: That’s fine, but it’s your notice that sets up the opinions that your expert is offering.¶
15 MR. ROHRBACH: Yes, your Honor.¶
16 17 18 THE COURT: So what they should do is look at the notice, and if their expert has different views than what’s in the notice, they should provide those views.¶
19 MR. ROHRBACH: Yes, your Honor.¶
20 21 22 23 24 THE COURT: If your notice is insufficient under Rule 16 to tell us now what opinions your expert is going to provide, then you may have problems down the road. But I’m not going to have them held to a different standard than what the government has done here.¶
25 MR. ROHRBACH: Of course, your Honor.¶
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THE COURT: So, Ms. Menninger, with respect to Saturday, if there’s anything in the notice that’s suggested that your expert has different expert opinions on, please provide notice. Otherwise we’ll see how it plays out.¶
MS. MENNINGER: Of course. Thank you, your Honor.¶
THE COURT: And then LaPorte and Naso, I don’t have any sense, based on the disclosures, what evidence this will go to, and the defense says that’s because they don’t know what evidence the government will produce. What documents do you imagine you would have these experts analyze?¶
MR. PAGLIUCA: I think it’s unlikely that they will testify, your Honor. The only document that was potentially at issue relates to Accuser No. 2. And I doubt that that — I doubt that that’s going to become an issue during trial. We endorsed them just out of an abundance of caution, and I don’t really see it playing out. But I think if it — if it comes up, if it becomes an issue, certainly I’ll give as much notice as I can. But I don’t really think they’re going to be testifying at trial.¶
THE COURT: Good enough for me.¶
Mr. Rohrbach.¶
MR. ROHRBACH: I’d like to say it’s good enough, your Honor. The concern is that if the defense decides mid trial that they would like to call these experts, it’s going to create a difficult situation for the government to file the¶
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appropriate Daubert motion, identify responsive experts if necessary. And so the government asks that the Court preclude the defense experts at this time unless they give at least more specific notice about what they might testify to.¶
THE COURT: Well, they are precluded without more specific notice. That’s true.¶
MR. ROHRBACH: OK. Then that’s fine for the government, your Honor.¶
THE COURT: Yes. I mean, plainly, Rule 16 hasn’t been met at this stage, and the representation is, they’re not anticipating anything coming up. If something comes up, they would have to first provide sufficient notice in order for us to be able to resolve this. So it can’t being is that could have been anticipated at this point. OK?¶
MR. PAGLIUCA: Yes. Totally understood, your Honor.¶
THE COURT: OK. Thank you.¶
All right. Next thing on my checklist, the limiting instructions related to witness 3 that I proposed. Who’s taking this one?¶
MR. ROHRBACH: I am, your Honor.¶
THE COURT: So Mr. Rohrbach, you propose — so I suggested, “However, you may not convict the defendant on the basis of the testimony regarding the sexual conduct between this witness and Mr. Epstein.” You agree that’s a correct statement of the law, yes?¶
4 5 MR. ROHRBACH: For witness 3. Yes, your Honor, we agree that’s a correct statement of the law.¶
6 THE COURT: But you want to add “solely.”¶
7 8 MR. ROHRBACH: Yes. The government thinks that that clarification —¶
9 10 11 12 13 14 15 THE COURT: Let me ask you this. So if you add “solely,” then, to my ear, it would mean that you can convict the defendant on the basis of the testimony of witness 3 regarding the sexual conduct between this witness and Mr. Epstein, and other evidence regarding the sexual conduct between this witness and Mr. Epstein. Is that a correct statement of law?¶
16 17 18 19 MR. ROHRBACH: Yes, your Honor. Insofar as the Court has ruled that evidence related to witness 3 is direct evidence of the offense, if that is offered in combination with other evidence in the case that goes —¶
20 21 22 23 THE COURT: No, I think maybe you misunderstood my question. The government has said that the sexual conduct between Mr. Epstein and this witness took place over all relevant ages of consent. Correct?¶
24 MR. ROHRBACH: Yes, your Honor.¶
25 THE COURT: So the defendant can’t be convicted based¶
MR. ROHRBACH: I apologize, your Honor. I’m just trying to pull find that. This is for the —¶
THE COURT: For witness 3.¶
on the sexual conduct between this witness and Mr. Epstein. Correct?¶
4 5 6 7 8 9 THE COURT: My question is, I think if you add “solely,” this is what I hear: that the defendant can be convicted based on this witness’s testimony regarding the sexual conduct between Mr. Epstein and this witness, and other evidence regarding the sexual conduct between this witness and Mr. Epstein. Is that a correct statement?¶
10 11 MR. ROHRBACH: I see your Honor’s point. Yes, that would be a correct statement.¶
12 THE COURT: That would be in, in—¶
13 MR. ROHRBACH: That would be incorrect.¶
14 THE COURT: That would be wrong. As a matter of law.¶
15 MR. ROHRBACH: Yes.¶
16 17 THE COURT: And that doesn’t solely give it that meaning, that potential meaning?¶
18 19 20 21 MR. ROHRBACH: I see your Honor’s point that if “solely” is read to modify the sexual-conduct point, then that creates a — it becomes amenable to that reading. The government’s point is that —¶
22 23 THE COURT: And should the jury be instructed that way, that would be, in my mind, reversible error.¶
24 25 MR. ROHRBACH: That would be an incorrect statement of law, yes, your Honor.¶
MR. ROHRBACH: Yes.¶
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THE COURT: So we won’t add “solely,” because we don’t want to wrongly instruct the jury about the law. So we’ll keep that one as it is.¶
I need to think about the other one. In my mind, this is an issue that pertains — I understand there’s a witness where the only sexual conduct took place in New Mexico, and I had understood previously that that witness was above the age of consent in New Mexico, but that the government was offering that evidence as enticement to engage in illegal sexual conduct in New York. And that’s what I was trying to capture in the instruction, so that that evidence could be relevant, the jury could see that evidence as relevant to the enticement to illegal sexual activity as defined under New York law, which is the only way that the government has charged this case, other than the trafficking count — well, including the trafficking count, yes.¶
And that’s what I was trying to capture. And I’ll consider the alterations you’re suggesting. What we can’t do is infuse the instruction with the government’s case and arguments. The point here is just to make clear what the jurors can’t do and then, to the extent they otherwise deem the evidence relevant, they can consider it and we’ll give them the charge at the end of the day. But I’ll consider the suggestions. I haven’t — just haven’t had time.¶
Anything on that?¶
MR. EVERDELL: Yes, your Honor. I mean, it’s the 4 5 6 7 defense’s position that the Court’s instruction is a correct statement of law. It’s concise, it’s clear, and will clarify the issues for the jurors as opposed to confuse the issues. I think the government’s instruction is exactly the opposite. It is cumbersome, it is difficult to follow, and it will confuse rather than to clarify.¶
8 9 10 11 And I will just point out, I think your Honor identified the correct example, which is Accuser 2, which is alleged events that took place in New Mexico when she was above the age of consent for those acts in New Mexico.¶
12 13 14 15 16 And so this illustrates the problem of trying to prove a conspiracy where the illegal sexual activity is a violation of New York law with acts that took place in other jurisdictions which were legal and have nothing to do with New York law.¶
17 18 19 20 So as I think you’ve discussed before, your Honor, if the witness is going to testify to these events that took place in New Mexico, even though they’re legal under New York law there’s no issue there — they’re going to —¶
21 THE COURT: Not under New York law.¶
22 23 MR. EVERDELL: Under New Mexico law. I’m sorry. I misspoke. Under New Mexico law.¶
24 THE COURT: Right.¶
25 MR. EVERDELL: They’re going to assume that the purpose of this testimony is that these are illegal acts that they’re talking about, and unless they’re instructed otherwise by the Court, they . Maxwell on an improper basis, which is that this witness’s testimony is talking about illegal sexual activity, as that’s charged in the indictment. So there has to be a clarification on this point.¶
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And I just would note, your Honor, the reason why we’re here in this position is because the government has chosen to add Accuser 2, Accuser 3, people who have nothing to do with violations of New York law, in this conspiracy, and if they’re going to do that and you try to use that as evidence of a violation of New York law —¶
THE COURT: Well, the charge is enticement. And, in my mind, this witness is in a very different position than witness 3.¶
MR. EVERDELL: Yes.¶
THE COURT: But it’s certainly relevant evidence to the enticement charge with respect to New York law. There’s no doubt about that.¶
But I agree, we have to make sure that the jury understands, though it can be relevant evidence for that, if they want to take it into account for whatever they want to take it into account for, what they can’t take it into account for is itself the New Mexico activity — sexual activity as itself illegal conduct charged in the indictment.¶
4 5 6 7 8 9 10 11 But it seems to me these witnesses are in very different postures, and therefore different risk of prejudice. But I propose an instruction that I think gets to the point. And it’s a different instruction precisely for this reason, that that sexual conduct can be relevant evidence of the enticement charge to violate New York law. So I do think some charge with respect to that witness, some limiting instruction with respect to that witness, is necessary. I won’t make it confusing, and I won’t allow the government to just insert its theory into the charge. But I’ll take a look to see if there is any additional clarification. That would be helpful.¶
12 13 14 15 16 MR. ROHRBACH: Just in response to Mr. Everdell’s point, your Honor, the government is not prepared to concede today that the sexual activity that occurred in New Mexico was above the relevant age of consent. As we briefed in our letter, that’s a complex question of New Mexico state law.¶
17 18 19 20 21 22 23 24 25 THE COURT: So, I mean, if there’s a factual question that the government intends to put on, as to whether that was illegal sexual activity under New Mexico law, then certainly I’m not going to — again, that’s not how you charged it. That’s not how you charged it here. Right? You haven’t charged pursuant to New Mexico law. But if what the government is saying is, I shouldn’t give that charge because in fact you’re going to show that it was illegal sexual activity — I’m not going to misinform the jury that it wasn’t illegal under¶
New Mexico law if that’s something the government is going to¶
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our charging theory is just a violation of the New York statute question that any sexual activity that occurred in New Mexico was necessarily above New Mexico’s own age of consent. So at¶
MR. ROHRBACH: No, your Honor, because the government terms of the accuracy of the proposed jury instruction — that is, whether the sexual conduct was legal or illegal within New¶
conduct that she says she had with Mr. Epstein in New Mexico.” And then I had suggested, because it’s what I understood from the parties, “I instruct you that because the witness was over the age of consent in New Mexico at the relevant time period,¶
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illegal sexual activity, as the government has charged in the indictment.” So it sounds to me, from what you’re saying, is that the first part of that sentence may be factually in dispute. But the key, I think, goes to the latter part of the sentence, which is that the sexual conduct she says occurred with Mr. Epstein was not illegal sexual activity as the government has charged in the indictment. You agree with that.¶
MR. ROHRBACH: That’s correct, your Honor.¶
THE COURT: So let me work on this one, and I’ll propose — I mean, I’ll put out a new proposal after I’ve had some time to absorb.¶
MR. ROHRBACH: If I may make just one other point, your Honor, related to this, which is that, given that we’ve charged this as a — minor Victim 2 is only charged in the conspiracy counts of the indictment. And so whether or not events that took place in New Mexico constitute illegal sexual activity within the meaning of the Act doesn’t bear on whether there was an independent to engage — sorry. It bears on whether there was an intent to engage in illegal sexual activity in New York but only insofar as that sexual activity in New Mexico would satisfy the New York definition of —¶
THE COURT: Yes.¶
MR. ROHRBACH: And so whether or not —¶
THE COURT: I understand. The only fear of confusion is if they think that you’ve established the illegal sexual¶
activity by having put on evidence of the sexual conduct in New Mexico.¶
MR. ROHRBACH: Yes, your Honor. And we, for the 4 reason —¶
5 6 7 8 9 THE COURT: I understand your point, which is whether or not it violated New Mexico law, that witness, in her telling, was under the age of consent in New York, and therefore it goes to the conspiracy to — the Act conspiracy count.¶
10 MR. ROHRBACH: Right, yes.¶
11 THE COURT: I get it.¶
12 13 14 15 I will absorb this information and propose I do think a charge is necessary, but it has to be correct, and it sounds like it may not be entirely correct as written. So I’ll propose.¶
16 17 MR. EVERDELL: Your Honor, if I could just be heard briefly.¶
18 THE COURT: Sure.¶
19 20 21 22 23 MR. EVERDELL: On the point about not being illegal under New Mexico law, this is really an eleventh-hour issue the government is raising. They haven’t charged it this way. I imagine if they thought this was really a violation of New York law there would be a substantive —¶
24 THE COURT: New Mexico law.¶
25 MR. EVERDELL: I’m sorry. I keep misstating, your¶
Honor. — New Mexico law, that we would have a substantive 4 5 6 7 8 9 10 violation in addition for I believe the government, citing, the issue they’re this witness. We don’t. And in fact bassed on the case law they’re raising is that there has to be force involved or coercion involved for this to be something illegal. And that’s not how they charge it. That’s never been an issue in this case. We’ve litigated that issue quite extensively. So I think it is a correct statement of law to say this is not illegal sexual activity under New Mexico law, and that’s what the instruction should reflect to the jury.¶
11 12 13 14 15 16 THE COURT: I think the important point has to be captured in “as charged by the government and for purposes of establishing the elements that the jury has to consider.” So I hear your point. I’m going to think about the best way to provide clarity to the jury so that they know what they can and what they can’t do with this evidence.¶
17 MR. EVERDELL: Thank you, your Honor.¶
18 19 THE COURT: I’ll do my best. And I’ll hear from you after I re-propose.¶
20 Anything else on that?¶
21 MR. ROHRBACH: No. Thank you, your Honor.¶
22 THE COURT: Anything else, Mr. Everdell?¶
23 MR. EVERDELL: No, your Honor. Thank you.¶
24 25 THE COURT: All right. So next is just to go over, make sure we’re all on the same page — that’s all I have for¶
legal issues. The next is to make sure we’re on the same page about logistics for Monday. So we’ll be here, as you know. The jurors will be assembled in two different courtrooms, and they — when they left, we gave them instructions as to where they should go. So we’ll have — and you’ve been provided that — jurors in the two different courtrooms.¶
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We’ll meet here at 8:30, by the way.¶
So once we have all of the jurors assembled, we’ll have the video feed, and I will say good morning to them and then say I’m going to ask two questions and if they have a “yes” response to either of the questions they should raise their hand. And as we discussed, the two questions are:¶
“(1) Since you were here for individual questioning by me, have you read, heard, seen, researched anything about the case or discussed the case with anybody? If yes, please raise your hand.¶
“(2) Do you feel for any reason that you could not be a fair and impartial juror in this case? If yes, please raise your hand.”¶
If any jurors raise their hand, we’ll bring them in one at a time and see what the issues are.¶
Once we get through that, then we’ll have our pool, and your peremptories will be exercised on the first 40 jurors in ascending order. Any questions about that?¶
And we’ll have the board and you’ll do alternate¶
strikes.¶
4 THE COURT: OK.¶
5 6 7 8 9 10 11 12 I always ask at the final pretrial conference if there are any issues to discuss regarding exclusion of witnesses under Federal Rule of evidence 615. And especially because the parties have feeds into their war rooms, I want to make sure we’re all on the same page that anybody who may testify, other than the parties, who would potentially be needing to discuss whether they can listen to testimony or be excluded, experts or case agents, or you tell me.¶
13 14 Are there any potential witnesses who the government anticipates would be listening to some or all of the testimony?¶
15 16 17 18 19 MS. COMEY: No, your Honor, certainly not before they testify. After certain victims testify, they may choose to be present after the completion of their testimony pursuant to their rights under the Crime Victims’ Rights Act, but otherwise no witnesses that we know of will be listening to testimony.¶
20 THE COURT: OK. Ms. Menninger.¶
21 22 23 24 25 MS. MENNINGER: Your Honor, I would note that the government has and we’ve litigated — whether any of the accusers’ prior inconsistent statements may be admitted after their credibility has been attacked. Pursuant to the rule, if there is later introduction of inconsistent — I’m sorry, I¶
MS. COMEY: No questions, your Honor.¶
MS. STERNHEIM: No. Thank you.¶
mean —¶
4 5 6 7 MS. MENNINGER: — prior consistent — we’ve got a problem at this table misspeaking — of prior consistent statements, that the declarant be made available, subject to recross — or recall to the stand, to explain those supposed prior consistent statements.¶
8 9 10 11 So I don’t know how that bears on the Court’s thinking about permitting those accusers who may be subject to recall to listen in on testimony following their release from their original testimony, your Honor.¶
12 13 14 15 16 17 18 19 20 THE COURT: Well, I guess the first question is, under the rule, which reads, “At a party’s request, the court must order witnesses excluded so they cannot hear other witnesses’ testimony” — or I could do it on my own. But I guess the question is, is the defense — so the government says alleged victim witnesses, after they testify, may want to listen to testimony after that. Ms. Menninger, are you requesting they not do that because of the possibility that they may be recalled for rebuttal?¶
21 MS. MENNINGER: Yes, your Honor.¶
22 23 MS. COMEY: Your Honor, if we may, we would ask to put in a letter on this issue, to look into it.¶
24 25 THE COURT: Yes. Fair enough. And I think you’re right. There may be an intersection between the Crime Victim¶
THE COURT: You mean prior consistent.¶
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Protection Act and 615. Why don’t you both look at it, confer, see if you can come to agreement, and if not, put in a letter.¶
MS. COMEY: Thank you, your Honor.¶
MR. PAGLIUCA: Your Honor, one other issue on sequestration. I was hoping to be able to provide a copy of Dr. Rocchio’s testimony to either Dr. Dietz or Dr. Loftus, because I anticipate there may be issues that come up that they need to address during their testimony. And so for that purpose I would ask for a limited exclusion from Rule 615 for those witnesses.¶
MR. ROHRBACH: That’s fine with the government, your Honor.¶
THE COURT: Thank you. This is why I asked. Make sure we’re on the same page.¶
Anything else in that regard?¶
MS. COMEY: Not from the government, your Honor.¶
THE COURT: When may I have an order-of-witness list?¶
MS. COMEY: We would propose by Saturday, your Honor?¶
THE COURT: OK. And, as I always do, I ask at the final pretrial conference if any plea offers were communicated to the defense.¶
MS. COMEY: None were communicated, your Honor.¶
THE COURT: And Ms. Sternheim, that’s accurate; none were communicated?¶
4 MS. COMEY: Nothing from the government, your Honor.¶
5 THE COURT: Anything from the defense?¶
6 MS. STERNHEIM: No. Thank you.¶
7 THE COURT: Give me one second?¶
8 9 10 11 Yes. Just on the point, Ms. Comey, regarding the witnesses who may be recalled for rebuttal, you’ll, both sides will look into it, you’ll confer, and when would you like to put in a letter if there’s disagreement?¶
12 we submit it by Saturday, your Honor?¶
13 THE COURT: Yes.¶
14 MS. COMEY: Thank you.¶
15 THE COURT: All right. Nothing further?¶
16 17 Thank you, everyone. Have a good Thanksgiving. I’ll see you on Monday.¶
18 (Adjourned)¶
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MS. STERNHEIM: None were communicated.¶
What else? Anything?¶