Attorney-Witness, Kinnerton Street, Loftus, and Remote-Testimony Rulings
120 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 16, 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
(Trial resumed; jury not present)
JUDGE NATHAN: All right. We have a number of issues to take up. I've gotten letter briefing on several issues over the past few days, including some new issues that came in last night. I did address the issue of defense witness anonymity by order last night, which will be docketed this morning when docketing puts it up, denying the defense request for anonymity for the reasons indicated. As to the remaining issues, so there's the prior inconsistent statements issue. I received the letter with the government objections close to 11 p.m. last night. I haven't had the ability to yet go through all of them, and I haven't heard any responses from the defense. What's the timing of anticipated witnesses here?
MR. EVERDELL: Your Honor, for the witness order?
JUDGE NATHAN: Well, when might we get to a witness who implicates the prior inconsistent statements? And I gather there's been some effort to work through stipulation and narrowing.
MR. EVERDELL: Yes, your Honor. There have been some efforts, and I think there's going to be continued efforts there. I don't think we have a witness until after lunch that is going to implicate the prior inconsistent statements.
JUDGE NATHAN: Okay. That may be what we're doing during lunch then.
MR. EVERDELL: Yes, your Honor.
JUDGE NATHAN: I think this is an area ripe for narrowing and stipulation when feasible. Okay. Next is the attorney witness issue. I am prepared to give guidance on that. Okay. So I have the defense's letter to call attorneys Jack Scarola, Brad Edwards, and Robert Glassman to testify during the defense case-in-chief. And I've looked quite carefully at these arguments and proffers. Obviously I've had the one related to Mr. Glassman the longest. The defense argues that the testimony of the attorneys is relevant to show how and why the alleged victims cooperated with the prosecution in this case, which it argues is relevant to motive to testify and bias. I think the government concedes that, with the exception of Mr. Glassman's requested testimony as to whether he told Jane that cooperating would "help her case," other than that, I think the government agrees that the proffered testimony is not -- at least as framed -- attorney-client privilege.
I still have to exercise caution in considering the ability of defense to call these witnesses, since they are attorneys for witnesses who testified, and the boundary to privileged communications can be easily crossed. I do think as a general matter, to the extent the defense has established that any of these witnesses will testify to relevant nonprivileged information that is not outweighed by prejudice, it's possible to get such testimony. After careful consideration, with one exception, the information the defense seeks to elicit from the three attorneys, I conclude, is either not relevant under Rule 401, is duplicative of information elicited on cross-examination and, therefore, outweighed by prejudice, or is only potentially marginally relevant to the limited inference of impeachment so as to be outweighed by 403 prejudice. The one question I intend to permit is the one I suggested the parties stipulate to testimony from Mr. Glassman. I will permit Mr.
Glassman to be asked the following: Did you tell the government that you told Jane that cooperating with the government and testifying in this case would help her civil case against Epstein's estate and Ms. Maxwell and/or her claim to the victims' compensation fund? The question does not elicit privileged information directly because it seeks only to know what Mr. Glassman told the government. Unlike the other proffers, this testimony is relevant because Mr. Glassman's testimony, if the answer is yes, could contradict Jane's testimony and allow an inference to the jury that at least at one point she may have been under the impression that testifying would help her civil case against Ms. Maxwell and her claim to the fund. With this inference, the jury could find that Mr. Glassman's testimony tends to impeach Jane either as to motive to testify or impeachment by contradiction or both. So that is my guidance on the issue of the attorney -- the witness attorney testimony. Any questions?
MR. ROHRBACH: None from the government, your Honor.
MR. PAGLIUCA: I just want to be clear, your Honor. You're precluding testimony from Mr. Scarola and Mr. Edwards.
JUDGE NATHAN: Yes.
MR. PAGLIUCA: The only reason I'm asking that question is we can release them and not have them appear.
JUDGE NATHAN: Yes, on the 401/403 grounds.
MR. PAGLIUCA: Understood. And that may speed things up a little bit here, since we're releasing a couple of witnesses.
JUDGE NATHAN: Okay. Thank you. All right. Making progress. There's a government objection to preclude, pursuant to Rule 16, an exhibit that I gather purports to be a sale agreement for the defendant's home in -- house in London at 44 Kinnerton Street dated 1996. Does that have a trial mark for identification, that exhibit?
MR. EVERDELL: It does now, I believe, your Honor.
JUDGE NATHAN: Okay. Just in time.
MR. EVERDELL: Yes. This is going to be MG -- one of the MG exhibits, the agreement for sale. We're just checking which one it is, your Honor. It's marked as MG-2 now, your Honor. We're going to have to hand up, I think, to the Court some of these things. I'm sorry, we have them in Trial Director now, so we'll be able to --
JUDGE NATHAN: You have them what?
MR. EVERDELL: We have these marked exhibits in Trial Director; we'll be able to put them on the screen.
JUDGE NATHAN: I don't have a -- do you have a paper copy?
MR. EVERDELL: Of that particular exhibit?
JUDGE NATHAN: Yes.
MR. EVERDELL: We can bring it for the Court.
JUDGE NATHAN: Okay. Do you have a copy in front of you, Mr. Everdell?
MR. EVERDELL: I don't, because that's a witness that's coming later. But let me see if I can find one.
JUDGE NATHAN: Okay. Well, maybe we can see what else we can get to.
MR. ROHRBACH: Your Honor, I have a paper copy.
JUDGE NATHAN: Okay.
MR. EVERDELL: Put it on the screen.
JUDGE NATHAN: That's fine.
MR. EVERDELL: Put MG-2 on the screen, please, for the Court, for the judge, and the deputy.
JUDGE NATHAN: I'm sorry, give me again the trial mark.
MR. EVERDELL: MG-2, your Honor.
JUDGE NATHAN: Okay. There it is. Okay. Is this you, Mr. Everdell?
MR. EVERDELL: No, this is going to be Ms. Sternheim.
JUDGE NATHAN: Okay.
MS. STERNHEIM: Judge, I do have a copy if you'd like to see it.
JUDGE NATHAN: Okay. Great. Thank you. All right. And we're marking this MG-2. I'm sorry, I meant the cover letter.
MR. EVERDELL: The cover letter that's dated 2010?
JUDGE NATHAN: Yes.
MR. EVERDELL: Okay. We removed that from the marked exhibit; it's just the agreement of sale that's underneath that.
JUDGE NATHAN: Oh, you're just seeking to move the --
MR. EVERDELL: Your Honor, there are a number of documents that we're going to try to introduce through -- it's actually slightly more complicated now. So Mr. Grumbridge, who is going to be --
JUDGE NATHAN: What has been simple?
MR. EVERDELL: Nothing's been simple. Mr. Grumbridge is unable to come because of professional reasons. He would be available Tuesday. But we're going to try to do this a different way. We have a notary named Keith Rooney who we plan to call today who has gone to the land registry and has obtained certified copies of the land registry entries for this property showing when the title transferred to Ms. Maxwell. And I have copies of those documents, if you'd like to see those.
JUDGE NATHAN: Not yet, but maybe.
MR. EVERDELL: Okay. He's also gone to the consulate, I believe, and got it apostilled to make it a foreign public document, certified as a foreign public record that could be admitted, self-authenticating by itself. But we'd like to call him to explain the process that he went through to get these documents and admit them that way. He is also going to -- we were going to seek to admit Mr. Grumbridge's records through them as well, because he's gone to Mr. Grumbridge's office in London, checked his files, seen the copies of the agreement for sale and the other documents we were going to admit through Mr. Grumbridge in his files, has certified that they exist in his files, and can authenticate those documents and introduce those as well.
JUDGE NATHAN: All of this is in an effort to prove that Ms. Maxwell did not live at this address before 1996?
MR. EVERDELL: That's correct.
JUDGE NATHAN: So let's go back to the letter, if we could, the cover letter. Do we know why it's dated 2010?
MR. EVERDELL: Your Honor, I think that's a separate record. Because I think that record reflects that there was an opportunity to purchase the leasehold outright in 2010. It's a little bit of a complicated title. It's actually a leasehold. She does own the lease; it's effectively owning it, b.ut this land, I think, has been in the possession of the Duke of Westminster since, you know, 1500. It's a very complicated chain of title in the UK. But the way it works is you pass the leasehold from one person to another. And that is effectively ownership under the land registry records. And that leasehold passed in -- the contracts were exchanged in '96, and the deal closed in '97, in January '97; and it was registered in a land registry as a transfer of that title in March of '97.
JUDGE NATHAN: And again, my question is not that it's to prove when Ms. Maxwell purchased the home, but the defense's proffer from counsel is that it is to prove that she did not live there before 1996?
MR. EVERDELL: That's right. We have a witness, Kate, who says -- she didn't live there before 1997, because that's when she actually took possession of the property, right. We have a witness, Kate, who has testified to events that allegedly took place in the Kinnerton Street property in '94 and '95. And these records show that she didn't own that place; that she wasn't living in that place --
JUDGE NATHAN: Well, they show she didn't own it, I suppose.
MR. EVERDELL: Correct.
JUDGE NATHAN: It sounds like there are different stages in the purchase process.
MR. EVERDELL: Well, yes. But the records also reflect in the land registry that the ownership existed with this couple whose last time is O'Neill. They owned it under the land registry records as of 1992. That title passes then to Ms. Maxwell in 1997. These are both land registry entries which I have here, if the Court would like to see them. And what Mr. Grumbridge's records -- the agreement for sale, for example, just shows the process of that contracting, right. So in December of '96, the parties exchange contracts; Mr. and Mrs. O'Neill and Ms. Maxwell entered into contract for sale for this property. And that deal closed as of January 1997. That's reflected in the agreement for sale. And then the notice is given to the land registry to make it an official land record by March of '97. So there's a record on file in the land registry recording that the title has passed from the O'Neills to Ms. Maxwell as of March of '97. So there's a couple of documents that we think are relevant that we think Mr.
Rooney could enter into evidence. The first is the actual land registry records, which are here, which show -- and I can pass them up if the Court would like, which show the first ownership, which belongs to the O'Neills as of '92; and then title passing to Ms. Maxwell as of '97. That's here. There's also a land registry record which shows the actual transfer of title which describes all of this as well. And then there are the records that are found in Mr. Grumbridge's files, because he was the attorney who represented Ms. Maxwell in this transaction, which include that agreement for sale, because that's a private document, but it exists in his files, it's still there. And Mr. Rooney has seen it in his files in London. And he's prepared to testify to that because he's here today. And a few other documents that were in his files that relate to this sale of the property and the transfer of title at that time.
JUDGE NATHAN: Okay. Mr. Rohrbach.
MR. ROHRBACH: I think that the point Mr. Everdell just made about how this is confusing and complicated reinforces two of the government's arguments. First of all, putting this confusing set of land transfers and leaseholds that speaks to when the defendant took ownership of the property would confuse the jury into having to understand British real estate law and actually says nothing about when she, in fact, occupied the property for the reasons the government explained in its letter, including the deposition --
JUDGE NATHAN: So the government indicates that Ms. Maxwell's 2019 deposition indicates that she lived in the home beginning in '92 or '93?
MR. ROHRBACH: Yes, your Honor.
JUDGE NATHAN: Would the government seek to introduce that testimony if I let in the legal documents?
MR. ROHRBACH: Yes, we would, your Honor.
JUDGE NATHAN: Okay. So we're going to have a trial on -- we're going to have a little mini trial on whether -- on whether Ms. Maxwell lived -- not owned, but lived in that house prior to 1997?
MR. EVERDELL: Your Honor, this is, I think, hardly a mini trial. This is extremely probative --
JUDGE NATHAN: What about the testimony, deposition testimony, in which she said she lived there beginning in '92 or '93; it comes in, doesn't it?
MR. EVERDELL: We can argue that, I suppose, your Honor. But even if it does come in, they can argue that that shows that she's --
JUDGE NATHAN: Well, that goes directly to when she lived there. Your evidence goes to when she owned it. Right?
MR. EVERDELL: That's right. But --
JUDGE NATHAN: So when she -- I see the relevance for impeachment as to when she lived there. What is the relevance to when she owned it?
MR. EVERDELL: Your Honor, the records show that the O'Neills owned that property until 1997, some family of the O'Neills, not Ms. Maxwell.
JUDGE NATHAN: They don't rent places in London?
MR. EVERDELL: That's something that the government, I'm sure, could argue to the jury. But this is extremely relevant. We're equally able to argue to the jury that this shows that she owned it, and what Kate is testifying to couldn't have happened because --
JUDGE NATHAN: Well, again, it shows ownership. I get that. The relevant question is residence. The government has testimony from Ms. Maxwell that she lived there beginning in 1992. What evidence do you have as to whether or not she lived there prior to ownership?
MR. EVERDELL: Your Honor, if I may have a moment.
JUDGE NATHAN: You may.
(Counsel conferred with defendant)
MR. EVERDELL: Your Honor, I think the solution to this problem -- and this would not be a mini trial -- is for us to be able to admit the records showing the ownership records. And if the government wants to admit the testimony to be able to argue the opposite point, then okay. But that's hardly a mini trial. And then each side gets to argue their point.
JUDGE NATHAN: I was sort of leaning that way when I thought the attorney was going to come testify who could be crossed on this precise question. But you want it to just come in -- you want a fact not in issue, which is the ownership question, you want an inference from ownership -- ownership is confusing; but the inference from the timing of ownership as to when she lived there, which is contradicted by deposition testimony that would come in from Ms. Maxwell.
MR. EVERDELL: Your Honor, I think we have records which we'd have to find and anticipate this being the issue. But Ms. Maxwell had another place in London at a street called Stanhope Mews, I think it was 69 Stanhope Mews. And we may be able to find the title records that she sold it, because she had that prior to the Kinnerton Street residence. And I think if you have -- we'd have to look for those. I think we probably can find them. But they would show that she had another place until she bought this new place. So I think that is a fair inference to say that if somebody owned another place and didn't buy another place until later, that they are not living at that new place if they owned the other place. That's just common sense.
JUDGE NATHAN: And why can't the attorney who you had proffered as the witness for this testify?
MR. EVERDELL: Your Honor, if we need the attorney, we can try to get him here, but we just couldn't get him here Thursday or Friday. So if you give me a moment on that, I can check on the status of that.
JUDGE NATHAN: Okay.
(Counsel conferred)
MR. EVERDELL: Your Honor, I'm told he has a court appearance on Monday, and he's only going to be able to get on a plane Monday night and would only be available to testify Tuesday. We can consider a stipulation to his testimony too, but I think these are all relevant and we should be able to admit these to the jury to argue the inference.
JUDGE NATHAN: I think the point of cross is whether he has knowledge of whether -- of who lived at the residence prior. Mr. Rohrbach, the complication of ownership aside, what is the government's view as to the relevance of facts regarding who lived in the home prior to 1997?
MR. ROHRBACH: So who lived in the home might have marginal impeachment value, but the government's view is that it's only marginal. The proffer we have from the defense now is that, at most, the defendant lived in a home nearby before she moved to the 44 Kinnerton Street home. So to the extent that that's true -- and again, it's contradicted by the defendant's under-oath deposition testimony -- it would have only marginal impeachment value. It would mean that, if true, it would mean that Kate identified a nearby, but incorrect, address for the first time she went to the defendant's house, at most. That's minimal impeachment value.
JUDGE NATHAN: I think what makes sense here to talk about is a stipulation as to the timing of ownership of the Kinnerton -- 44 Kinnerton, the timing of ownership. And then that can come in with the government's deposition -- with the deposition of Ms. Maxwell saying she lived there beginning in '92 or '93. Then both sides can argue to the jury what they want.
MR. ROHRBACH: Yes, your Honor. The government would -- I'd like to confer with the team, but I think the government would probably agree to a stipulation that included both the ownership fact and the deposition testimony, so they'll both come in.
MR. EVERDELL: We'll have to confer on this, Judge, but I understand what the Court's position is.
JUDGE NATHAN: Okay. It sounds like that gives you what you want, which was the fact of ownership timing from which you can argue to the jury that because she didn't own it until a certain date, she couldn't have lived there before that date. And you can then argue, therefore, Kate wasn't accurate or testified falsely or however you want to phrase it, that she was in that -- she believed Ms. Maxwell lived there prior to '97.
MR. EVERDELL: Just to preview for the Court, I think we would also like to include, which is information that Mr. Grumbridge would have about the Stanhope Mews ownership prior to this, because he was the lawyer and solicitor involved in that transaction as well, from my understanding. So I think it's -- to make the same point. But if we're going to lose his testimony, because I think it's relevant testimony, I would like to get in all parts of his testimony that I think are relevant to this issue of ownership.
MR. ROHRBACH: We're happy to confer with defense counsel and try to work something out. I would just note that defense counsel has not produced any records to the government showing this prior ownership of Stanhope Mews.
JUDGE NATHAN: All right.
MR. ROHRBACH: We'll confer with the defense and try to work out a stipulation.
JUDGE NATHAN: Great. Thank you. Okay. All right. Moving on to the Dr. Loftus testimony. So I got the letter dated December 15th in which the government seeks to exclude two aspects of Dr. Loftus's anticipated expert testimony on suggestive activities: Her testimony on the use of leading questions by government investigators, and her anticipated testimony on the therapist technique of response pressure to provide more detail about a patient's experience. In an order dated November 21st, 2021, I ruled that Dr. Loftus's opinions on suggestive activities are generally admissible. The government argues that the above two opinions, however, lack a foundation in the record. I'm going to deny the government's motion to preclude here, but with guidance. First, as we've discussed and I've made clear, Dr. Loftus is testifying, I understand, as a blind expert, meaning that she'll provide relevant expert opinion, but not apply it to the facts of the case. And just as Dr.
Rocchio offered testimony that included examples of grooming, variety of grooming examples or factors that might make a child vulnerable to sexual abuse, it seems comparable to me that Dr. Loftus can offer examples of suggestive activity, including the two examples the government seeks to exclude. So long as her testimony does not state that those activities occurred in this case or go into any specifics of the case, that would be beyond the bounds of a blind expert. Second, I think there is -- the defense has provided an adequate foundation for expert opinion on suggestive questioning by the government by cross-examining witnesses about the questions they were asked. For example, the defense on cross-examination of Jane asked about the government asking her the same question three times in the same interview, trial transcript at 515.
And Jane testified that the government, quote, communicated to her through her attorney that The Lion King didn't come out until 1997, which the defense also believes to be an example of suggestion. This testimony provides a sufficient basis for the jury to consider the relevance of Dr. Loftus's opinions on suggestive questioning techniques. So that's my basis for that ruling. There was argument regarding Agent Young testimony that -- I don't know the government's general views on Agent Young's testimony and I don't need to reach a conclusion on that for purposes of this ruling. So I don't have further guidance on that now. All right. Questions on that?
MR. ROHRBACH: Nothing from the government, your Honor.
MS. STERNHEIM: Nothing at this time.
JUDGE NATHAN: Okay. Thank you. All right. Motion to preclude Alexander Hamilton testimony.
MS. STERNHEIM: We'd like to get Broadway tickets for everyone. That's the best we can do.
JUDGE NATHAN: It really is -- yes. It was Hamilton in Federal '78 that said, We just have judgment, not will nor force, just judgment. So I guess this calls for judgment. So I have the defense response with respect to this witness that came in at 12:31 a.m. this morning. I haven't had a chance to work through the issue yet. What's the timing on this witness?
MS. STERNHEIM: The timing on this witness is that the witness has COVID. So the witness will not be here unless the Court permits his testimony to be versus via WebEx. And I have cited another case in this district where I, in fact, was sent to London when a government witness was too ill to come to the district. And certainly given what the courts have been utilizing through COVID, there certainly is a legitimate basis for that request. He cannot travel. He is quarantined. Provided he is not incapacitated -- and I understand he would be able to give testimony from his home -- that would be the request, if the government was not willing to work out a stipulation based upon the declaration that had been disclosed orally and had been provided in written form.
MR. ROHRBACH: Your Honor, assuming the Court lets in the testimony at all, the government is not going to agree to a stipulation. We think this witness needs to be subject to cross-examination. It may be possible -- I know the Court has done before a procedure by which a witness can testify by WebEx, but the Court would have to make certain findings first. As part of that, we think that the witness would have to produce the positive COVID test to demonstrate to the Court --
JUDGE NATHAN: I thought the letter said that you've got that.
MS. STERNHEIM: I do, but I didn't think it was necessary to make it part of a public record.
JUDGE NATHAN: All right. Why don't you work out -- Mr. Rohrbach, you think a finding other than Ms. Sternheim's -- you think a record beyond Ms. Sternheim's proffer that she has a positive COVID test, would the government -- you said the court has done this before; you mean a colleague has done it. I haven't done it.
MR. ROHRBACH: My understanding is that before the COVID era, the Court may have done -- taken -- permitted a witness to testify remotely or at least considered the issue before. Maybe not permitted actually, your Honor. My understanding is in general that the courts follow the factors in Rule 15 for depositions in order to make this determination; and so the Court would have to find that witness is unavailable, that it's in the interest of justice before permitting it.
JUDGE NATHAN: Okay. And the government wants -- well, it seems to me if there's a positive COVID test --
MR. ROHRBACH: We would not resist that the witness is unavailable if there's a positive COVID test, your Honor.
JUDGE NATHAN: Okay.
MR. ROHRBACH: To be clear, I don't think the government is resisting on any of those factors. Under Rule 15 we would -- and we could come back at a break and elaborate on exactly what the stretches are. We just would ask the Court to make the full record of the reasons for permitting the witness to testify through WebEx.
JUDGE NATHAN: Okay. You don't disagree with that, do you?
MS. STERNHEIM: No. But I would just note that in the case that I've cited, United States v. Al-Fawwaz, there was less of a showing in that case as to the unavailability of the witness who was available to come to the site where he was deposed by myself and government counsel. Here, we do have a definitive positive test for COVID, and I think that speaks for itself. He certainly would not even be able to get on a plane, let alone enter the United States.
JUDGE NATHAN: I think the unavailability on the defense's proffer is established. So why don't you work out the -- if a further record is required and logistics. I don't think I let a witness testify remotely. I let a juror deliberate remotely.
MR. ROHRBACH: I think the Court is right. I think the Court considered and applied the Rule 15 factors, but did not allow the witness to testify remotely is my recollection, your Honor.
JUDGE NATHAN: I'll look at it. But I anticipate this witness will be permitted to testify by WebEx. So you'll work out what we need to do to effectuate that.
MS. STERNHEIM: Thank you.
JUDGE NATHAN: Okay. What other open issues do we have that we can deal with now, counsel?