Rule 29 Motion for Judgment of Acquittal
142 lines(Jury excused)
JUDGE NATHAN: Matters to take up.
MR. EVERDELL: Your Honor, the defense has an application.
JUDGE NATHAN: Go ahead, Mr. Everdell. Do you want to come to the podium?
MR. EVERDELL: Yes, please. Your Honor, the defense moves at this time for a judgment of acquittal under Rule 29(a) on the grounds that the evidence elicited by the government in its case-in-chief is insufficient to establish each element of the offenses charged in the S2 indictment beyond a reasonable doubt.
JUDGE NATHAN: Move as to all counts?
MR. EVERDELL: Move as to all counts, your Honor.
JUDGE NATHAN: Go ahead.
MR. EVERDELL: Your Honor, we do make this application with respect to every count in the S2 indictment; but for purposes of today, I'm going to confine my comments to address specifically Counts One and Two.
JUDGE NATHAN: Okay.
MR. EVERDELL: Which are the enticement counts, conspiracy, and the substantive enticement counts. Your Honor, as the Court is aware, those counts depend on the testimony of Jane. To convict Ms. Maxwell, the government must show that Ms. Maxwell persuaded or enticed Jane to travel to New York to engage in sex acts that would violate New York law and the specific law that's cited in the indictment. There is no evidence in the record that Ms. Maxwell or anyone else who allegedly participated in this conspiracy persuaded, induced, or enticed Jane to travel to New York to engage in illegal sexual activity. Your Honor, these words "persuade, induce, entice," these are words of causation. And I am now quoting from U.S. v. Broxmeyer, 616 F.3d 120 (2d Cir. 2010), and that's at page 125. This is a decision that addresses 2251, not 2242, but that statute has the same words "persuade, induce, entice," and it's interpreting in the same way.
And Broxmeyer says that these are words of causation, which means they have to bring about an effect. There has to be something done by the defendant to bring about an effect. And in discussing the dictionary definitions, these words are usually given their dictionary definitions, but they do discuss in this opinion what those typically are. And they quote from the Random House Dictionary. "Induce" means, according to the dictionary, to bring about, produce, or cause. "Entice" means to draw on by exciting hope or desire or allure. And "persuade" means to prevail on a person to do something as by advising, urging, etc., to induce to believe or convince. So, again, these are words of causation. Now, the only testimony that we have in the record that relates in any way to Ms. Maxwell taking part in Jane's travel to New York is that Jane testified as to the following three points. And I will refer the Court to the record.
I'm looking at pages 316, line 2, to page 317, line 1; pages 324 line 14, to 324, line 20; and pages 323, line 23, to page 324, line 11. In those transcript paragraphs, this is Jane's testimony, she says that three things occur with respect to Ms. Maxwell and her travel: First, she says that she, Jane, traveled with Mr. Epstein and Ms. Maxwell to various locations, including New York. Second, she says that Ms. Maxwell sometimes assisted in making the travel arrangements. There's really like a one line mention of that. And third, she recounts an anecdote that on one occasion when she was already in New York, she called someone -- it's unclear who -- and she was said, quote/unquote, freaking out because she couldn't get on her plane going back to Palm Beach because she was only 15 at the time and didn't have any identification. And she says that at some point "Ghislaine made it happen for me," meaning that she helped her get on that flight.
That's the only testimony we have and only evidence we have in the record that talks about Ms. Maxwell's involvement in enticement or encouraging travel to New York. So with respect to each three, your Honor, they are insufficient. First, we can dispense with the incident where allegedly Ms. Maxwell got on the phone and somehow arranged for Jane to get back to Palm Beach, because that is a flight going back to Palm Beach; that is not enticing someone to fly to New York for the purposes of breaking New York law and engaging in illegal sex acts. There's no enticement as would be illegal under the statute there because this is a return trip. As to the first, simply traveling with someone is not enticing; that's just being present on the plane, that's not causing an effect, that's being present. That does not qualify. So simply being on the plane traveling does not establish persuasion, inducement, or enticement.
And as to the last, occasionally arranging travel, if that is to be believed, is not enticement either. Jane's testimony, if you look at those transcript cites, your Honor, is that her travel arrangements were typically made by Jeffrey Epstein's office, and that Ghislaine Maxwell occasionally helped out. There is no testimony whatsoever that Ghislaine Maxwell encouraged her to travel. There is no testimony that she tried to convince her to travel anywhere, much less New York, or advised her to travel. We don't even have testimony that Ghislaine Maxwell offered to arrange the travel. All it says is that she occasionally arranged. And maybe it's the office that called -- or that arranged with Ghislaine to have Ghislaine arrange the travel. But she didn't
MR. EVERDELL: even offer it herself. It seems like the best we have on this record is that she performed a ministerial function of arranging the travel. But that is not doing something, a cause, that produces an effect; that is simply doing paperwork. That is not what the statute was designed to criminalize. There has to be some effort to entice or persuade or induce somebody to travel, which we do not have on this record. And one case I would direct your Honor to is United States v. Joseph, 542 F.3d 13 (2d Cir. 2008). In that case, the Second Circuit reversed the conviction for enticement under this same statute, 2422, because the jury was instructed that they could convict if they found the defendant made the possibility of a sex act "more appealing," as if that was enough to entice, if they made it more appealing. The court held that that was not enough to establish persuasion, inducement, enticement under the statute. And here we don't even have that. We just have her performing what a travel agent would do, which is arranging travel plans. And that is not enough, under the wording of the statute, to prove enticement. And there is nothing also from any member of the conspiracy on that same count, your Honor, doing anything to arrange or induce the travel. So I would argue, your Honor, that on the record we have before us, there is insufficient evidence to establish Counts One and Two, the enticement conspiracy and substantive counts.
JUDGE NATHAN: All right. Thank you. Mr. Rohrbach.
MR. ROHRBACH: If I may take the podium, your Honor. Your Honor, the Court should deny the defendant's motion as to Counts One and Two. Jane was not in New York by accident. In fact, there's no nonsexualized purpose that's been articulated at this point for Jane to travel to New York. Mr. Everdell takes a very narrow view on the nexus that's required between enticement, inducement, and the other verbs that are in the enticement statute and the travel itself. The jury could readily conclude, as the government has argued, that all of Jane's travel to New York was in the context of the relationship that the defendant and Epstein built with Jane. That meets each of the verbs in the statute. Jane's testimony is that the defendant played on her hopes and dreams to make her feel special, seen, and cared for. "Enticement" is defined as using hope and desire.
So the defendant was playing on Jane's hopes and desires in order to get her into this relationship over a multi-year period in which she was traveling with the defendant. Similarly, persuasion, the defendant testified that -- sorry, Jane testified that the defendant developed a friendship with her, talked about sex with her, bought her gifts, took her on field trips. The defendant -- Jane's testimony, in combination with Dr. Rocchio's testimony, would lead the jury to concludes that the defendant was in a relationship of coercive control with Jane, which would have allowed her to exercise control to get Jane to continue to travel to New York where, Jane's testimony is, the defendant personally engaged in sexual abuse of Jane. So those are plenty of reasons why the enticement statute is met as to Jane herself, in light of the course of conduct the defendant engaged in with Jane over many years.
But even if the Court didn't readily conclude that that statute was met, the defendant is also charged under an aiding and abetting theory. And there can be no serious argument that Jeffrey Epstein didn't entice, persuade, induce, and coerce Jane to travel to New York. And given that fact, it's quite obvious that the defendant was aware of that plan, given that she was on the plane and in the room in New York when the abuse was happening. And she took steps over multiple years to knowingly associate herself with it and to facilitate it. So that, again, is a separate theory by which the statute is met. And finally, here, I would just remind your Honor, as I'm sure your Honor is already aware, the standard here is remarkably low. All that is required is that taking all inferences in the government's favor, the jury could conclude -- they could find a conviction on Counts One and Two. That bar is surmounted very easily by just the testimony of Jane alone, and I have not even discussed other corroborating testimony that would support that conclusion.
JUDGE NATHAN: All right. Thank you. Any final points, Mr. Everdell?
MR. EVERDELL: Just two, your Honor.
JUDGE NATHAN: Microphone, please.
MR. EVERDELL: I can do it from here.
JUDGE NATHAN: That's fine.
MR. EVERDELL: The point about Mr. Epstein's actions I won't leave alone; but, of course, only applies to the conspiracy count. Obviously Count Two is the substantive count.
JUDGE NATHAN: You'll address aiding and abetting?
MR. EVERDELL: Well, yes, aiding and abetting. So I don't see any testimony of Ghislaine Maxwell aiding and abetting Jeffrey Epstein, enticing her to travel to New York. There's remarkably little testimony about that action, and that is what the subject of the substantive count is, right. You have to show that Ms. Maxwell enticed Jane to travel to New York with the intent knowing that when she got there, that statute, that New York statute that's cited in the indictment, would be violated. And if it's going to be on an aiding and abetting theory, then she has to have aided Jeffrey Epstein or some other person to have done the same thing. And I don't see any evidence in the record about Jeffrey Epstein enticing her to travel to New York. All we heard of was travel to New York. And there could be any number of reasons why she traveled to New York. But there is no hard evidence that there was enticement to travel, convincing her to travel for that purpose. So I don't think either on an aiding and abetting theory, it also doesn't work. The only other point I would make, your Honor, is that I want to be clear on the record that we are making this application as to all counts, although my comments are reserved for the first two counts.
JUDGE NATHAN: Understood. All right. Thank you. The motions are denied. What do we need to discuss before Thursday?
MS. MOE: Your Honor, we just wanted to confirm on the record that we would be receiving defense exhibits and Rule 26 material today.
JUDGE NATHAN: Counsel?
MR. PAGLIUCA: We should have those materials today, your Honor. There's a little bit of fluidity in terms of the witnesses, and perhaps even if there are Rule 26 materials, frankly, which I don't suspect that there are.
JUDGE NATHAN: Okay.
MR. PAGLIUCA: But the problem is, you know, we have a larger list that we've needed to winnow down, given the fact that the government has rested early and has not called a significant number of witnesses. We also have the problem of travel for this period of time with some of our witnesses. And we're confirming who's available. And we have been confirming who's available and who's not available and when. And there may be the need to substitute a different witness on the same topic. But what I expect to be able to do tonight is to send the government what we believe our good-faith list is. And there will be some, I expect, adjustment to that as we move along. But that's our anticipated goal here, your Honor.
MS. MOE: Your Honor, the government warned the defense multiple times this week that we would rest. The Court ordered the defense to produce these materials at the conclusion of the government's case, long before the trial. And we submit the defense should do just that. With respect to Rule 26 materials, especially given that there are experts in this case, there should be Rule 26 materials, including communications with experts, things like contracts and payment materials. And if there were going to be defense witnesses, any notes of interviews with those witnesses are governed by Rule 26 and are subject to disclosure today. So we would ask the defense to comply with the Court's order, produce those materials today, along with exhibits, a list of witnesses, and an order of the first witnesses.
JUDGE NATHAN: Yes. You'll do that.
MR. PAGLIUCA: I think I said we were going to do that, your Honor.
JUDGE NATHAN: Right. To the extent you think one witness might be substituted for a different witness, you need to alert the government in your list today who the other witness might be and make disclosures accordingly.
MR. PAGLIUCA: We will do what we are supposed to do; and we will do our best at it, your Honor.
JUDGE NATHAN: Okay. You have time, since we're not sitting again till Thursday, to arrange travel. We've known for some time the government would -- at least a few days, the government would rest this week; and we've known about my scheduling issues for Monday, Tuesday, Wednesday. So we're not at a moment of surprise at this point. I get that they've shaved witnesses and that might require -- it's not me.
MR. PAGLIUCA: It's not me, your Honor.
JUDGE NATHAN: Whoa. That's weird. Khalilah? It's the ghost of Friday, I guess. So I think you're in a position to do your full disclosures. To the extent there may be a substitute witness, you're in a position at this point to make those disclosures as if it is that person, so I did expect a full disclosure. What is the defense's anticipation as to length of case?
MR. PAGLIUCA: I would say -- I'm going to guess no more than four days, more likely two to three, your Honor.
JUDGE NATHAN: Okay. All right. So I think then -- and then we should talk about the timing of the charge conference. Have you discussed that further? You kept promising to discuss it.
MS. MOE: Yes, your Honor. We haven't conferred with the defense about that. We continue to just defer to the Court's preference on timing. I think if the defense case is two to three days, then a charge conference at the conclusion of that would fit with the Court's timing. We're also happy to do that earlier. We don't have a preference as to the sequencing there.
JUDGE NATHAN: Let me just look at the calendar. Go ahead, Ms. Sternheim.
MS. STERNHEIM: I was just going to suggest that we utilize the Saturday that the Court said would be available. Even if we had more of a case, I think we could accomplish that, if the Court is still amenable.
JUDGE NATHAN: Okay. That's fine with me.
JUDGE NATHAN: All right. So why don't we schedule the charging conference for Saturday the 18th. I will confirm with the relevant court administrative staff and the marshal that we can do that and ensure public access and the like, of course, Ms. Maxwell's presence. But, as I said, my assumption is we can do that. So I will get you the charge sometime in advance of the 18th.
MR. EVERDELL: Your Honor, one other matter to take up. Looking ahead to the defense case -- and we have been in contact with a number of our potential witnesses, and we are already getting requests, and I think these are valid requests -- that at least some of them testify anonymously --
JUDGE NATHAN: I think your mic went out.
MR. EVERDELL: Maybe it's my mic that's the problem, your Honor. It's making noise.
MS. STERNHEIM: Try this one.
MR. EVERDELL: Is that better?
JUDGE NATHAN: It is.
MR. EVERDELL: Okay. So, your Honor, as I was saying, we've been in contact with some of our witnesses, and we are already getting what I think are valid requests that these witnesses testify anonymously or under some sort of protection, name protection, whether that's a pseudonym or a first name, we have to work that out. I think given the protections that the government has sought for their witnesses and that they've received for their witnesses, we all know that this case has gotten a lot of attention and that people who are testifying here might get a lot of unwanted attention, especially if they are testifying on behalf of Ms. Maxwell. And they would like to be able to do this, at least some of them, with some sort of anonymous protection. And, your Honor, there's, I think, one in particular that maybe we can be heard at sidebar on, but --
JUDGE NATHAN: Here's what I want to say: You should confer. Identify specifically who you're talking about and the asserted reasons. You'll let me know if you come to agreement or disagree and, in either case, you'll put -- certainly if you disagree, you'll put forward your disagreement. To the extent you agree, you'll put forward the rationale and authoritative support for the proposition.
MR. EVERDELL: Absolutely, your Honor.
JUDGE NATHAN: So timing on that?
MS. MOE: Your Honor, this is the first we're hearing of this. So I'm not aware of how many their witnesses are or what the issues are, but we'd be happy to confer with defense about that and submit briefing on it during the break over the next few days. I think the amount of time we'll need to examine and brief the issue depends on how many folks we're talking about.
MR. EVERDELL: Your Honor, if I can make a suggestion, I think it makes the most sense to do this after we have disclosed the witness list and then we can confer.
JUDGE NATHAN: Right. So do that. And then confer and then you tell me, Mr. Everdell, when would you like to put in --
MR. EVERDELL: One moment, your Honor. I think if we can do it by Monday, that would be fine for the defense, if that works for the government.
JUDGE NATHAN: So Monday. If you're in agreement, you'll put in a submission. If you're in disagreement, the defense will move on Monday and I'll hear from the government on --
JUDGE NATHAN: So I suppose we might be looking at this application with respect to witnesses on Thursday.
JUDGE NATHAN: Yes.
MS. MOE: Your Honor, would Wednesday at noon be acceptable? If the Court would like additional time --
JUDGE NATHAN: That's fine.
MR. EVERDELL: Your Honor, I'm sorry to do this, but I think the concern is high enough among some of these witnesses that -- you know, that they need an answer on this issue sooner rather than later.
JUDGE NATHAN: Well, then it should have been raised sooner rather than later. You're asking for Monday; they can have to noon on Wednesday. I'll then have the papers briefed by noon on Wednesday.
MR. EVERDELL: Okay. We can also back up the schedule, your Honor. We can have it done by -- we'll do it Sunday. And then if that backs it up for a day, that will make a difference for the defense, your Honor, if we have our papers Sunday.
JUDGE NATHAN: Okay. Sunday to Tuesday?
MS. STERNHEIM: Thank you.
JUDGE NATHAN: To be clear, I don't imagine you'll get resolution from me until --
MR. EVERDELL: I understand.
JUDGE NATHAN: -- Wednesday.
MR. EVERDELL: Yes, I understand, your Honor.
JUDGE NATHAN: And I can't guarantee what time that will be.
MR. EVERDELL: Yes. I understand.
JUDGE NATHAN: And again, if this is a significant issue, it should have been raised earlier if you wanted earlier resolution. You're looking at Wednesday evening, at the earliest, resolution.
MR. EVERDELL: Yes, your Honor. I think the conferral should work out. I'm confident we can reach some agreement on this.
JUDGE NATHAN: That's fine. And authority and support. Obviously I was not -- I broke no ground in permitting anonymity with respect to the witnesses who have testified. As I said, that that ruling, that's well-tread territory. Even if there's agreement, I would look for authority to make sure that it's permissible.
MR. EVERDELL: Understood, your Honor.
MS. MOE: Yes, your Honor. We'll look into the issue. I don't know who the witnesses are, what the basis would be, but we'll thoroughly examine it and make sure to apprise the Court whether there's a basis or not. We'll certainly address that in our briefing. With respect to those defense witnesses or, I should say, all of the defense witnesses, we just want to confirm that they will also be subject to Rule 615, your Honor.
MR. EVERDELL: None of them have any plans to stay in the courtroom, your Honor, as far as we know. They are going to be in and out.
JUDGE NATHAN: Okay.
JUDGE NATHAN: Okay. Yes.
MS. MENNINGER: Very briefly, your Honor. This is something I've conferred with the government about a few times, including as of the last three days, I think once a day. With respect to defense Exhibits J-8/9 and Defense Exhibit J-15 --
JUDGE NATHAN: Oddly, I remember them.
MS. MENNINGER: We all do. And I've been asking for -- I submitted it with redactions that I thought were appropriate. The government has said several times that they thought they might have one or two more redactions. I've been asking for those. I believe those were admitted in evidence a week ago Wednesday, so nine days ago. I think that they should be made publicly available. The government has said, Well, let's do it next week, when we're doing videos and things like that. Frankly, I think the time for giving more redactions has come and gone. And if they have any more, I'd ask that they submit them to the Court by this evening so the Court can rule on those additional redactions. Because I submitted them with redactions in the first place, and I think I've been getting requests from the media for those exhibits. I obviously don't respond to the press, but I think it's an indicia that they are interested in making whatever is going to be publicly available happen sooner rather than later.
MS. MOE: Your Honor, I spoke with Ms. Sternheim this morning about all the pending redaction issues. There are a number of exhibits, both defense exhibits and government exhibits, that need additional redactions. And we agreed over the break we would work diligently to resolve the full slate of pending redactions issues. We don't understand the particular urgency with respect to these exhibits. Ms. Menninger is right, that she did email the government last night in the evening while, as the Court is aware, we were tending to other matters. I don't understand the particular urgency with respect to these exhibits. And again, we conferred with the defense this morning to confirm they would resolve all the pending redaction issues over the weekend. That seems entirely reasonable, given how many redaction issues we'll be resolving. We're still waiting to hear from the defense on a number of redactions and we'll work together on that issue. I don't see the need for a fire drill redaction resolution this evening; and so I think the proposal we discussed this morning is reasonable. We're going to get those issued resolved in full.
JUDGE NATHAN: We'll get all of that done this weekend. Thank you.
JUDGE NATHAN: The attorney-client privilege issue.
MS. MENNINGER: Your Honor, I think we very well may be able to reach some type of stipulation, as your Honor suggested. I think in the press of business over the last 24 hours, that has not yet been discussed between the two sides.
MS. MOE: That's correct, your Honor. We haven't had a chance to confer about that issue. We have begun discussing that internally and are thinking through that carefully. We're not in a position to make a representation about our position at this juncture, but that's very much top of mind and we'll be working diligently on that issue over the break.
JUDGE NATHAN: Okay.
MS. MENNINGER: And just as a preview, your Honor, there may be some others like that. As your Honor is aware, things came up during the course of testimony, and we will confer with the government about that with respect to other attorneys as well.
MS. MENNINGER: There are other matters that may give rise to the need for attorney testimony or probably more likely a stipulation about similar issues. And we would like to confer with the government first before briefing them. But I wouldn't -- our witness list may have other attorneys' names on them that have an asterisk by it saying subject to briefing and approval by the Court. I don't want anyone to believe we haven't understood the Court's prior statements on this topic. It would be something we speak with the government about and brief if we believe that the testimony elicited during the government's case would give rise to such testimony from any other attorney.
MS. MOE: Yes, your Honor. We'd be happy to confer with the defense about any of these issues. Our view remains the same as it has been throughout this case, which is that there's no basis for calling plaintiffs' attorneys as defense witnesses. There's no basis for waiving attorney-client privilege. And the Court has been very clear that that issue should be briefed in full before any witnesses along those lines should be called. But, again, we're happy to confer with the defense about that.
JUDGE NATHAN: Okay. You'll confer. The one that's been teed up is where there's an email --
JUDGE NATHAN: -- between you all and which it appears, at least on the face of the email, that counsel made a disclosure.
MS. MENNINGER: That's similar to other issues, your Honor.
JUDGE NATHAN: It's in that context that I've encouraged a stipulation as to what was relayed to the government. Because I think -- as I said, I think that doesn't -- there's a basis for it in the email; it doesn't require wading into attorney-client privilege issues; and I think it gives the defense what it's looking for, as would an inquiry, which would be limited, into what the attorney said to the client. I haven't come to rest on how that's resolved, but I've indicated I think it's a close call in light of the email I've seen.
MS. MENNINGER: Yes, your Honor.
JUDGE NATHAN: So you'll confer.
MS. MENNINGER: Yes, your Honor.
JUDGE NATHAN: I have briefing currently on that issue. So if you don't reach resolution, then I'll either -- I'll resolve or tell you what additional steps I need in order to resolve. If there are other issues that are similar, we should probably talk about timing for briefing --
JUDGE NATHAN: -- following conferral.
MS. MOE: Yes, your Honor. Is there a particular date upon which the Court would like to receive briefing from the parties about any additional privilege-related issues?
JUDGE NATHAN: I'm fine for it to be discussed and then fully briefed again sometime on Wednesday, if that works.
JUDGE NATHAN: Okay.
MS. MENNINGER: I think so, your Honor.
JUDGE NATHAN: All right. I'm just looking at the calendar. The defense case begins on the 16th. We have the 16th, the 17th. We'll do the charging conference on the 18th, if the defense case continues into the next week. But let me just encourage -- given this break that we're going on and -- here's just the one thing I want to say. I'll hear from you, but I want -- if the defense were to rest on the 17th, for example, then I will expect closings, absent a rebuttal case, on the 20th. Everybody agree with that?
MS. STERNHEIM: Yes, Judge. But I think it's highly unlikely that we will complete it on Friday, and I would ask the Court to take that into consideration.
JUDGE NATHAN: Okay. So let's say you rest on the 20th, Ms. Sternheim.
MS. STERNHEIM: That is our anticipation.
JUDGE NATHAN: Okay. So then we would anticipate closings on the 21st; correct?
MS. STERNHEIM: Judge, we would like to at least discuss our concerns about a jury deliberating one day prior to a Christmas holiday. I think that given that, as was Thanksgiving, Christmas this year is particularly celebratory since people were not able to do that last year. Our concern is that the jury might feel we don't want to come back and would rush to judgment in a case that we know they were prepared to be here until the middle of January. And they are already getting some time off. They may be disinclined to want to come back. And that could inure to the disadvantage of both parties, I understand. But I think we would not want to be in a position where the jury basically had one day prior to Christmas holiday, and I would ask the Court to be mindful of that, as I am sure you are. And that was one of the reasons why early on when we were hopeful that we could begin this case earlier because of our concern that it was going to bump up, now clearly we are way ahead of what the schedule is. But I would ask the Court to take into consideration that concern that we have.
JUDGE NATHAN: Okay. Ms. Moe?
MS. MOE: Your Honor, with respect to the timing of deliberations, I think the request on the timing of deliberations is, I think, at best, premature because we don't know how long the defense case will be; and so I don't think the Court needs to reach that now. But as a preview, if we end up in a situation in which the defense rests during the week of the 20th, I think we should be respectful of the jury's time. There's no reason for the jury not to be permitted to deliberate. I think it would be a hardship to keep them indefinitely and have them come back and wait a week to deliberate on a case that's ready to be adjudicated. So, again, I don't think the Court needs to reach this issue given the timing; but if the jury was prepared to sit this entire week and hear evidence, there's no reason they couldn't also be here and be deliberating. I think we should be respectful of the jury's time. And dismissing them for yet another extremely lengthy break, I think, runs contrary to the efficient way the Court has run this trial. And if this case can be resolved --
JUDGE NATHAN: Well, thank you. That's not what they usually call it.
MS. MOE: And I think, you know, the best way to be respectful of the jurors' time is to let them have the case.
JUDGE NATHAN: Okay. It's premature. We'll see where we are. My thinking was -- I think we'll see where we are. I suppose my point was since we're doing the charging conference on the 18th, I do want counsel to be prepared to turn to closings the day following the completion of the evidence. We'll see where that is and the like. But I don't want to keep starting and stopping. So we'll use our time, but I'm mindful of your concern, Ms. Sternheim, and we'll see where we are.
MS. STERNHEIM: I would just like to add that we anticipate that our case will run into the Monday. The government has already noticed a rebuttal case. That means that the closings would not be until Tuesday, and the charge may very well not be until Wednesday. Then we go into two days off. To put the jury in a posture where they have basically four hours to deliberate before the holiday season begins is very dangerous and that's why I'm asking the Court to consider that.
JUDGE NATHAN: I do understand the concern. And we'll see where we are. My admonishment is to -- what I don't want to hear is if the evidence closes on Monday, that you don't want to do your closings until the 27th. That's definitely not going to happen.
MS. STERNHEIM: I am not saying that, Judge. I think we all understand what the concerns are. And we will be very judicious in our attempt to complete this timely. But that being said, there is still logistical things that, in our estimation, will push this beyond Tuesday, and then we have the situation of the holiday. But we've raised it with the Court. I think the parties are mindful and we're not doing anything to delay. We just are concerned about this jury having ample time, without any external pressures, to deliberate.
MS. MOE: Yes, your Honor. Just to provide the Court with some additional information about the rebuttal case, we have noticed -- we have noticed a potential rebuttal expert. Whether or not we end up calling the expert we can't determine without seeing the defense case first. But that's the full scope of what we've noticed at this juncture. And I'm not sure whether or not we would call that expert. It would depend entirely on the defense case. So that's the scope of what we're discussing. Again, with respect to timing, we'll take it as it comes. And I think the Court has noted that this issue is premature, but we just wanted to assure the Court the government will be prepared to close the day after the conclusion of the defense case and would very much like to move forward. With respect to closings, we did want to just preview that -- and we plan to work with the defense on this issue. But we wanted to start thinking ahead the mechanics of how closings would work, given the fact that there are sealed exhibits and some public exhibits. And so we've started thinking through that, but wanted to just flag that that's a mechanical issue that we'll want to work through with the defense so that everyone has an opportunity to present what they need to without any hiccups, and also so that the jury can see exhibits without them being shown publicly. And so we'll work with the defense on that choreography to make sure that that runs smoothly. And we'll raise with the Court when we return from the break, I think, any issues that we need to flag about those mechanics so that it goes smoothly, if that's all right, your Honor.
JUDGE NATHAN: Yes, of course. And to the extent the AV folks can be helpful if there's something you want to propose, I'm sure that they'll make themselves available for that.
JUDGE NATHAN: Anything else?
JUDGE NATHAN: Anything else?
MR. EVERDELL: Nothing from the defense, your Honor.
JUDGE NATHAN: Okay. So I will see everyone Thursday at 8:45 a.m.
(Adjourned to December 16, 2021 at 8:45 a.m.)