Exhibit 52, William Brown Rebuttal Motion, and Sealed Jury Follow-Up
70 linesUNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x UNITED STATES OF AMERICA, v. 20 CR 330 (AJN) GHISLAINE MAXWELL, Defendant. Jury Trial ------------------------------x New York, N.Y. December 10, 2021 8:55 a.m. Before: HON. ALISON J. NATHAN, District Judge APPEARANCES DAMIAN WILLIAMS United States Attorney for the Southern District of New York BY: MAURENE COMEY ALISON MOE LARA POMERANTZ ANDREW ROHRBACH Assistant United States Attorneys HADDON MORGAN AND FOREMAN Attorneys for Defendant BY: JEFFREY S. PAGLIUCA LAURA A. MENNINGER -and- BOBBI C. STERNHEIM -and- COHEN & GRESSER BY: CHRISTIAN R. EVERDELL Also Present: Amanda Young, FBI Paul Byrne, NYPD Sunny Drescher, Paralegal, U.S. Attorney's Office Ann Lundberg, Paralegal, Haddon Morgan and Foreman
JUDGE NATHAN: Good morning, everyone. Good to see everyone. Matters to take up, counsel?
MS. MOE: Yes, your Honor. Thank you. Just a housekeeping matter with respect to Government Exhibit 52. We just wanted to clarify, before we offered the excerpts, that we would be offering Government Exhibit 52 and its subparts pursuant to a stipulation that they are true and accurate photocopies. I just wanted to make sure we clarified that before we offered it at the beginning of the court day.
MR. PAGLIUCA: I'm not sure if we're saying the same thing. I understood that 52 was being offered foundationally, which is the entire document, and that then there are the excerpts that were being offered into evidence for the jury. That was my understanding of the process that we were doing.
JUDGE NATHAN: Ms. Moe, it's your exhibit.
MS. MOE: Thank you, your Honor. I think the way in which we're proposing handling this would be similar in the way we handled the message pads, which is part of the authentication, involves the message pads themselves. So those exhibits were offered and also the subparts as marked exhibit --
JUDGE NATHAN: I think you are then saying the same thing.
MR. PAGLIUCA: Okay. So you'll move 52 in its entirety. There is a stipulation as to the accuracy of the copies on the subset of exhibits by letter, and you'll move those, as well.
MR. PAGLIUCA: I guess my question, your Honor, is what's going --
JUDGE NATHAN: Hang on a second.
MR. PAGLIUCA: -- to the jury is really the question. My belief, when we address this with the witness, was the government was not offering the entirety of 52, the government was offering the photocopies of the various pages, and that was the exhibit that was being admitted to the jury, and that's, I think, a significant distinction here.
JUDGE NATHAN: So you're opposing movement of the -- obviously, you've objected. To any event, I've overruled, but even after that, you have an objection to moving the whole thing to the jury or you just think it's inconsistent with how it's been discussed or I suppose inconsistent with how it was discussed at the time it was moved?
MR. PAGLIUCA: Yes. We had this colloquy. The government simply moved to admit the -- I think it's five pages. That was the extent of the admission. My suggestion, because we were dealing with the foundation issues, was that we would have that exhibit, we would agree to the copies being admitted per the government's request, but I wanted the actual exhibit as part of the record for any necessary appellate issues. And that's how I understood this was being addressed.
JUDGE NATHAN: Well, you want all of 52 as an exhibit for the appellate record, but you don't want the jury to get all of 52?
MR. PAGLIUCA: I think there are a couple of problems. Certainly, we didn't cross examine on the entirety of 52, because I understood that 52, in its entirety, was not being admitted. So I think that's problem number 1. There are also problems, I think, simply with relevance related to the rest of the exhibit, and there were discrete portions that the government said the government was contending were relevant and not the other portions. So the book is however many pages it is, but I think it's outside of what was appropriate for cross examination at the time.
JUDGE NATHAN: My clerk is sending me the portion of the transcript. I can't tell if you're in disagreement yet or not, Ms. Moe.
MS. MOE: Yes, your Honor. I think the issue is more that because the weight and authenticity of this exhibit has now been put in dispute, I don't know how the jurors would evaluate the testimony about its contents, the format, in order to evaluate its authenticity or weight without the object itself. That's what we wanted to clarify about whether that would be part of the record.
JUDGE NATHAN: You say now it's been put in dispute. It was certainly in dispute at the time you moved. So we'll see what was moved and go from there.
JUDGE NATHAN: I have the parties proposed limiting instruction, which looks just right to me. So thank you.
MS. MOE: Thank you, your Honor. And aside from this matter, there are no additional matters this morning.
MS. MENNINGER: I was going to propose that your Honor handle the limiting instruction for Ms. Farmer's testimony in the same way that we handled it for Kate in that she would be brought into the witness stand and the Court would read that limiting instruction so the jury can identify the person about who the limiting instruction is being given.
JUDGE NATHAN: I think we indicated yesterday before the break that we would do it the same way.
MR. PAGLIUCA: There is another issue, your Honor, to a newly disclosed witness as of last night or yesterday evening. The witness's name is William Brown, as I understand it. He is a, I would say, record custodian for DMV related to the identity of an individual that has the same name.
JUDGE NATHAN: Same first name?
MR. PAGLIUCA: Correct.
JUDGE NATHAN: As Jane?
MR. PAGLIUCA: Yes. So we are objecting to the late endorsement and the calling of the witness, first on simply disclosure issues, but second, I'm unclear of the relevance, given the lack of any, I'll call it, tying to any actual testimony. We're going to get a DMV record, as I understand it, from this witness that no one else who has testified has ever done any comparator between whatever is in the DMV record and either photographs or other information about the witness that Mr. Rodgers talked about. So I don't think there has been a linkup for relevance purposes. So we object on the basis of relevance to this witness being called, as well.
JUDGE NATHAN: Who will handle this one?
MS. MOE: Yes, your Honor. This exhibit and this evidence is directly responsive to an issue raised by the defense in their cross examination of both pilots in this case. As the Court may recall, defense counsel suggested that the Jane in the records in the 1990s could potentially be the person with the first name Jane from the 2000s. We have produced in discovery, and is nontestifying witness materials, ample material that makes it clear that could not possibly -- and in response to the suggestion that it might be this different person, we now need to clarify the record on that. As defense counsel knows, the second Jane from the 2000s wasn't even in the United States in the 1990s. In fact, her date of birth and age makes clear that she could not be an adult in the 1990s on that flight --
JUDGE NATHAN: It's a rebuttal witness.
JUDGE NATHAN: On the disclosure front, I suppose if they want to make you wait and do it in rebuttal -- why you want to do that, I'm not sure, but on the disclosure front, it's clearly a rebuttal witness. I don't think someone that they could have anticipated needing but for the arguments put forward by the defense, you tell me if I'm wrong, but I'd certainly let -- on the disclosure front, I'd let the government call the person as a rebuttal witness. Whether we do that now or in rebuttal, I suppose, is -- I'll hear from both sides on that question. And then relevance, I think you've indicated the rebuttal relevance of the evidence you're seeking to get in?
MS. MOE: Yes, your Honor. On the disclosure front, I want to make clear we produced this exhibit the same day we received it. We were on equal footing with the defense here. In terms of the content of the testimony in the exhibit, it's just a picture and date of birth, which is information the defense has had or for a very long time now. It's a person that the defendant herself knows. So I don't think there is any surprise or mystery about a photograph of this defendant -- of this person which is the same as the photograph the defense has already offered and connecting that up with her date of birth, which is information that is not a mystery to the defense, they've been in possession of that information for a long time now through discovery. So we're both on equal footing. We promptly complied with our discovery obligations. There is no surprise in the substance of this testimony or the exhibit. So we would like to correct the record before the jury now because there is no basis to suggest to this jury that the person in the 1990s flights is Jane. That is misleading and we would like to clarify that today.
MR. PAGLIUCA: Your Honor, if the Court is going to allow it on rebuttal, it makes sense to do it now. I don't see why we would need to delay the witness. So if the Court is going to allow it, I would just --
JUDGE NATHAN: I'll allow it. It is rebuttal. The relevance is that the defense has suggested that, with both pilot witnesses, that the person they either remember to have the first name -- same first name as Jane or listed on Mr. Rodgers' log as having the same first name as Jane wasn't, in fact, Jane. I understand the government's proffer to be that they have evidence that shows this other person who has the same first name as Jane would not have been -- whose age and also presence in the U.S. -- is that part of it or just the age?
MS. MOE: Just the age. What we're offering is not a travel record. I think the photograph that was offered by defense counsel is of an adult. The testimony with that person was a person -- so her date of birth makes clear that she couldn't have been a personal assistant as an underage girl given her date of birth and given the timing. This would have been in the 2000s.
JUDGE NATHAN: Rebuttal relevance, I think, is apparent. So I will allow it and we can do it now.
JUDGE NATHAN: What else can I take up?
JUDGE NATHAN: Okay. Ms. Williams will check on the juror members. While we're gathering that, I would like to speak to the parties at sidebar just as to how to address the jury about the followup from the break yesterday.
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(Page 2037 SEALED)
(In open court)
JUDGE NATHAN: I've looked at the transcript, and the government expressly said it wasn't moving 52 in its entirety. So that's what's in issue and that's what I reserved on. So it's the subletters. Then 52, what's been marked for identification as 52 should be part of the record for purposes of the 901 issue. Okay?
JUDGE NATHAN: But what's been moved are the sub-sheet copies. If nothing else, I'll step down until we have our jury.
JUDGE NATHAN: Thank you.
(Recess)
JUDGE NATHAN: We have our jury. Any reason not to bring them in, counsel?
MS. MENNINGER: No, your Honor. Thank you.
JUDGE NATHAN: Please bring in the jury.
(Continued on next page)
(Jury present)
JUDGE NATHAN: Thank you so much, members of the jury. Appreciate your patience yesterday. I'm very pleased to report all the attorneys are here. Everyone is doing well. So we can continue. Ms. Moe, the government may call its next witness.
MS. MOE: Thank you, your Honor. At this time, we would like to read a stipulation between the parties.
JUDGE NATHAN: Go ahead.
MS. MOE: Thank you, your Honor. For the record, your Honor, the stipulation is marked Government Exhibit 1009. The stipulation is regarding Government Exhibit 52.
JUDGE NATHAN: Just, without objection?
MR. PAGLIUCA: Without objection, your Honor.
JUDGE NATHAN: Go ahead.
MS. MOE: It is hereby stipulated and agreed by and among the United States of America, by Damien Williams, United States Attorney for the Southern District of New York, and Maureen Comey, Alison Moe, Lara Pomerantz, and Andrew Rohrbach, Assistant United States Attorneys of counsel, and defendant, Ghislaine Maxwell, by and with the consent of her attorneys, Christian Everdell, Laura Menninger, Jeffrey Pagliuca, and Bobbi Sternheim, that Government Exhibits 52A, 52D, 52E, 52F, 52G, and 52H are true and correct photo copies of six pages of Government Exhibit 52. Your Honor, pursuant to this stipulation, the government offers the following exhibits under seal: Government Exhibits 52A, 52D, 52E, 52F, 52G, and 52H.
MR. PAGLIUCA: Subject to our previous record, your Honor.
JUDGE NATHAN: Okay. Thank you. I am admitting the exhibits just indicated with a limiting instruction. (Government's Exhibits 52A, 52D, 52E, 52F, 52G, and 52H received in evidence)