Defense Witness Scheduling, Prior-Statement, and Agent Young Examination Rulings
277 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 17, 2021 8:56 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
(Jury not present)
JUDGE NATHAN: Matters to take up, from my perspective, it's obviously a long list of prior inconsistent statements I need to go through. Before that, anything, counsel?
MS. MENNINGER: Your Honor, there is one witness that we have under subpoena who has not been in contact with us that we very much would like to call as a witness. I can say the name out loud or we can have a sidebar, but it is one of the witnesses about whom the government moved to preclude their testimony and your Honor ruled last night that we would be permitted to put that testimony on. All of our attempts to have communication with this witness after the service of subpoena have gone unresponded to. So I think, at this point, we have no choice left except to ask to have intervention of the marshals to bring that witness to court to testify.
JUDGE NATHAN: You'll have to file something.
MS. MENNINGER: Yes.
JUDGE NATHAN: Ms. Comey, anything on that?
MS. COMEY: Your Honor, this is the first time hearing of this. We'll have to see whatever is filed.
JUDGE NATHAN: Obviously, if you've got authority for how to proceed, you need to put that in quickly because we're not delaying trial.
MS. MENNINGER: Secondly, your Honor, with respect to the pleading that was filed yesterday or the day before asserting a Fifth Amendment privilege, I'm not sure whether that --
JUDGE NATHAN: I don't have a pleading, I have --
MS. MENNINGER: Well, a letter from a third party. That person also was under our subpoena. I don't know if your Honor views that as sufficient record on a Fifth Amendment assertion. We have not released the person from their subpoena. It wasn't styled as a motion to quash. So I'm a little bit unsure. Otherwise, we would like that witness to testify, as well. So, if your Honor deems it necessary to have a further record on it or a formal pleading from that witness, the witness is represented by counsel, Compton counsel, a former AUSA. So I don't know what their intentions are with regard to their client testifying beyond what the Court received in that letter.
JUDGE NATHAN: As I said yesterday, I don't have an application. And I asked if you have an application.
MS. MENNINGER: I don't.
JUDGE NATHAN: And now the application is, Judge, tell me what you think we should do.
MS. MENNINGER: No, it would be similar. We have a valid subpoena on the person and I would ask to enforce the subpoena and have the witness come testify. And if --
JUDGE NATHAN: Have you communicated with counsel as to whether, in lieu of appearing and outside of the presence of the jury, they invoke their Fifth, whether either a declaration or a letter from counsel making a representation and the like, I think the letter said you rejected that, if I remember correctly.
MS. MENNINGER: No, your Honor. The lawyer requested that we withdraw the subpoena and we said we're not withdrawing the subpoena, we want your client to testify, and if you have an issue with enforcement of the subpoena, you should address it to the Court, and then the lawyer submitted that particular letter to the Court. I didn't think that an email from a lawyer was sufficient to invoke.
JUDGE NATHAN: It didn't ask the Court to do anything. The Court is not in the business of just --
MS. MENNINGER: I understand.
JUDGE NATHAN: -- reading letters and then going out in the world and doing things. It's an adversary process. I act on applications.
MS. MENNINGER: Then we'll ask for the subpoena to be enforced as to that witness, too.
JUDGE NATHAN: Okay. Ms. Moe.
MS. MOE: Yes, your Honor. On that score, I wanted to note the government agrees with the Court, I think the ball is in defense counsel's court. If they want the witness to come to court and invoke in front of the jury --
JUDGE NATHAN: It does not happen that anyone invokes in front of the jury. All we would be doing is, outside the presence of the jury, they come, questions asked, invoke, and then they go home. We could do that if that's what the parties want to do — that seems like an enormous waste of time — or counsel can make an application as to how to proceed after consulting with counsel for the witness. I mean, it's your witness. If you want to send the marshals, despite -- or make an application to send the marshals despite the witness's counsel indicating to you that they want to invoke the Fifth, then I suppose you can do that, but --
MS. MENNINGER: Your Honor, I didn't ask for that with respect to that witness. I asked for it for one who refused to communicate with us. I will make a formal application. I understand, your Honor.
JUDGE NATHAN: Okay.
MS. COMEY: Your Honor, we're happy to confer with the defense on this issue to the extent the defense wants to make a record that this witness would have invoked, we're happy to confer to the extent it would be helpful about how to make that record.
JUDGE NATHAN: That's precisely why I raised it last night and asked if there was an application, but here we are. But again, we're not delaying trial, so this all needs to happen yesterday. It seems to me, again, I've indicated how I think this proceeds, but I need counsel to tell me what they're requesting. All I have is a letter from the lawyers saying that they have a defense subpoena and their witness would invoke. If the request is that you want the witness to come and invoke formally outside the presence of the jury, we can do that. If the request is some substitution for that, confer with the government and make a proposal to the Court. Okay. What else?
MS. MENNINGER: Your Honor, I've conferred with the government a couple times on redactions. I tried that yesterday, I tried it again this morning. I don't have an answer back yet from them, but I hope we can have one soon on some of the exhibits that are outstanding. That's something else that's outstanding.
MR. ROHRBACH: Yes, your Honor, we've been trading views on redactions. We'll finalize them and submit them to the Court shortly.
JUDGE NATHAN: Yes, Ms. Sternheim?
MS. STERNHEIM: Judge, I wanted to inform the Court, as the government is aware --
JUDGE NATHAN: I'm not sure your mic is on.
MS. STERNHEIM: Now it is. There were technical issues with regard to providing testimony from Mr. Hamilton in England, and we viewed it to be just far too complicated. There was no way that documents could be shown to him without turning off all the equipment and depriving the public of viewing him while he looks at certain things. So we have decided to withdraw our calling him as a witness.
JUDGE NATHAN: Okay.
MS. POMERANTZ: Your Honor, I was here in the courtroom while that was happening, and while there were some technical challenges, we were prepared to proceed. After consulting with the defense, they indicated that they were no longer prepared to call him. So I just wanted to be clear for the record that, from our perspective, this is not an issue of technological difficulties, but instead that was -- my understanding was they decided to not proceed and call Mr. Hamilton.
JUDGE NATHAN: I guess, just for record preservation purposes, Ms. Sternheim, is there anything that you're requesting be done technologically? We have our tech folks here, they're incredibly capable. Is there something you're requesting be done?
MS. STERNHEIM: No, I worked with the tech folks and there were things beyond their control or ability to do and we just viewed that it would be far too complicated. I would also add, as I told the government, that during the process, Detective Byrne kept calling Mr. Hamilton, who is not well, and it was somewhat unnerving. So we've made a decision not to call him.
JUDGE NATHAN: Okay.
MS. POMERANTZ: Your Honor, just to clarify, I don't think that's an accurate representation as to Detective Byrne. And I, again, would note that the very capable tech folks were here working and troubleshooting the issue. And I understand the decision not to call Mr. Hamilton was not with the technological issues, but instead a decision that defense counsel has made.
MS. STERNHEIM: We could go on all day, Judge, but suffice it to say, we're not calling Mr. Hamilton.
JUDGE NATHAN: You're not calling Mr. Hamilton and you have no additional application regarding being able to call him remotely with public access at the same time. Your concern is there would be a limitation of public access during his testimony, and for that reason, you've decided -- well, that's the case, and you've decided not to call him.
MS. STERNHEIM: That is correct. Thank you.
JUDGE NATHAN: All right. Thank you. Anything else?
MS. COMEY: Your Honor, just in terms of timing, there is one brief piece of evidence that we may seek to introduce as rebuttal evidence. I think it would take 10 minutes, at most, to get in. We just need to know whether we should have those witnesses — who are basically custodians — available at the end of today or if they should be available Monday.
JUDGE NATHAN: I think it's today. Ms. Menninger.
MS. MENNINGER: I don't think so, your Honor. I don't think we'll be able to rest until Monday morning.
JUDGE NATHAN: That's because there is some small issue you indicated or what?
MS. MENNINGER: There is, your Honor. There also are a number of stipulations that are outstanding between the parties. There are some other documents that we are seeking to get custodians and stipulations to, and they're not ready today. So I understand your Honor wants to move this forward. The defense has had its case for a day so far. I don't think we are delaying --
JUDGE NATHAN: I'm not suggesting you are. I just always -- my approach is I want to use the time that we have. And needless to say, there is a pandemic. We don't want to unnecessarily delay and we want to move forward as quickly as we can using the time we have allocated. So if we have time today to get everything in, then we'll do it.
MR. EVERDELL: Your Honor, on the issue of timing, I think we mentioned yesterday we may have one more witness who can only come on Monday. It is possible that we will call him. So we will need to have him on Monday, potentially.
MS. COMEY: Your Honor, we don't know who that witness is.
JUDGE NATHAN: Who is that witness and why can't they be here today?
MR. EVERDELL: Because they're coming from the U.K. and they can't be here until Monday.
JUDGE NATHAN: Who is it and how long?
MR. EVERDELL: How long is the witness going to be? It would be a very short witness. And this is related to the Kinnerton Street property. I think just today we got a declaration from him, which I can hand over to the government. They got this signed this morning about what his testimony would be. And I could provide it to the Court, as well. I would like it in front of me, but I could generally summarize, don't quote me on this, but he is the owner of the Nags Head Pub, which is right across the street from the Kinnerton Street residence. He owned that for the whole time that's relevant here. He knew the previous owners. He always saw them there. And he met Ghislaine Maxwell when she took ownership of the property, and he knew the prior owners to be living there, and then he knew Ghislaine to be living there when she bought the property. And he goes there every day. He owned the pub, he had a flat above the pub that looked across to the Kinnerton Street property, and he can verify the fact that she didn't take occupancy until after she purchased the apartment.
MS. COMEY: Your Honor, I would just note that the defense has had an extraordinary amount of time to prepare its defense case. We noted early last week that we were going to rest. We rested on Friday. They then had five full days, including three business days, to prepare. So we would object to holding the case over to Monday for a new witness.
MR. EVERDELL: This is a witness that is extraordinarily relevant and sometimes things develop during trial and we need to get witnesses to address issues that come up at trial. We were able to find this person and he's willing to come, even those he's 81, because he wants to come and provide this testimony if it's required. This is extraordinarily relevant, especially with the issue that came up with the property records and the issue raised to the Court. He can directly speak to that issue. His testimony is relevant for a critical issue in this case, which is whether or not this -- the events that Kate described could have even taken place at the time they took place, which she alleges they took place in, and he should be heard.
MS. COMEY: Your Honor, I just note this is the defense's third bite of this particular apple and it emphasizes the prejudice to us of delayed disclosure. We will have no opportunity to investigate further at this point.
JUDGE NATHAN: I mean, what we talked about yesterday was inclusion of documents that show ownership; right?
MR. EVERDELL: That's correct, your Honor.
JUDGE NATHAN: And I think I said those could come in.
MR. EVERDELL: You did.
JUDGE NATHAN: Along with, I presume the government would seek to introduce the testimony?
MS. COMEY: Yes, your Honor.
MR. EVERDELL: That's right, your Honor.
JUDGE NATHAN: So a new witness --
MR. EVERDELL: Your Honor, I did not anticipate that the issue between ownership versus occupancy was going to be such a relevant issue, and so given that that came up in the course of discussing what the stipulation --
JUDGE NATHAN: Just to be clear, I considered that as to whether to allow you to introduce ownership documents. I'm allowing you to introduce ownership documents. Arguably, they were not relevant or marginally relevant, but a 403 issue because of the complications of ownership. If you can put in the ownership documents on stipulation as to the timing of ownership, I'm allowing that. It's not a basis -- because I almost excluded it, but didn't, that's not a basis to call a new witness.
MR. EVERDELL: Your Honor, the stipulation would allow us to put in the ownership documents and the Court itself raised that there is an issue with residency or occupancy.
JUDGE NATHAN: I raised that in questioning whether the ownership documents were relevant. I'm allowing the ownership documents in. That's not a basis to call a new witness. That's just saying, oh, Judge has a good point, maybe we could strengthen this, I'm going to propose a new witness and delay trial. No.
MR. EVERDELL: Your Honor, we're not delaying trial. We only had one day of defense case. We're allowed to put on --
JUDGE NATHAN: You're announcing a new witness simply because I've questioned the relevance of the ownership documents by asking if they showed ownership or residency, because I thought, well, if it's just ownership, maybe it's not relevant, but I'm letting them in. If I weren't letting them in, I suppose you'd have a point.
MR. EVERDELL: Your Honor, the way the stipulation I understand is going to be worded with the government allowing admitting the testimony from Ms. Maxwell's testimony, they will be arguing to the jury that that shows that she didn't reside there, that the ownership records don't show residency, and you can infer from that that maybe she was there at the time period.
JUDGE NATHAN: Is that deposition transcript new information to you? You weren't aware that your client --
MS. MENNINGER: It was a property deposition that was taken in 2019, a slip and fall, and she was deposed as a third-party witness. They didn't give it to us. We still don't have the entire deposition. So yes, your Honor, it is new to us. And what she said in that deposition is something like '92 to '93. She didn't have documents in front of her. She was being inquired in 2019 about when she lived someplace in the early '90s, and she made a '92 comment, '93, according to the portion that was provided to us.
JUDGE NATHAN: You'll provide the transcript.
MS. COMEY: We already have, your Honor. We produced the entire transcript as discovery last week when we realized that this might be relevant.
MR. EVERDELL: Given we got there last week, we are trying now to address this issue with a witness that has relevant testimony to the very issue.
MS. COMEY: Your Honor, I would note this is a public document that is available on a New York State public website.
JUDGE NATHAN: I have a rule: You have your next witness or you rest. On this issue, simply because I raised a question and the government has a response, we're not delaying trial. So we'll see where we are, but if otherwise the case closes today, it closes today. I'm not delaying trial on this issue because I let in what you sought to have let in.
MR. EVERDELL: I think, your Honor, that on the issue of whether we're going to rest today, we still have the issue of whether the marshal is going to be able to produce one of the witnesses that we want that we put on the valid subpoena. So we're going to be going over to Monday probably anyway. If we're going to do that, I think we should have the ability to call this witness.
JUDGE NATHAN: When did you start attempting to contact this witness?
MR. EVERDELL: We issued a subpoena to her, and I don't have the dates off the top of my head, your Honor, I can find that out for you.
JUDGE NATHAN: Two and a half weeks ago?
MR. EVERDELL: I think that's when we issued the subpoena.
JUDGE NATHAN: And you've had no contact?
MR. EVERDELL: We've been trying to contact her, but no.
MS. MENNINGER: We gave her a letter with all of our contact information contemporaneous with our subpoena. Every witness that we have subpoenaed has been in touch with us, they have called our paralegal, et cetera.
JUDGE NATHAN: But you haven't raised this until now.
MS. COMEY: That's exactly the point, your Honor. The defense has had extensive time to raise this issue and they are raising it at the 11th hour when they could have raised it long in advance when all of the other witnesses they subpoenaed were in touch with them and this one was not.
MR. EVERDELL: Your Honor, look, if the government is willing to agree to a stipulation as to this witness's testimony, we can consider that. We don't have to delay trial. But I think this witness has relevant testimony.
JUDGE NATHAN: Which witness is it?
MR. EVERDELL: The one who can only come from the U.K. on Monday. I'm not talking about the marshals issue, I'm talking about the witness from the Nags Head Pub. If they're willing to agree to a stipulation, we could probably do it that way, that wouldn't delay anything, but I think this is relevant information.
MS. COMEY: Your Honor, I was talking about the marshal issue.
MR. EVERDELL: I'm sorry.
MS. COMEY: With respect to the marshal issue, we received absolutely no materials from the defense about statements that this witness has made, we have no idea what this witness would say on the stand, so we would not be able to stipulate to anything.
JUDGE NATHAN: Which witness have you subpoenaed but heard nothing from for weeks that I'm hearing about for the first time?
MS. MENNINGER: Her name is Kelly.
JUDGE NATHAN: Why am I hearing about it for the first time now?
MS. MENNINGER: Your Honor, there has been a lot going on. I understand that your Honor runs a tight ship. I think that we've all been working very diligently to present a defense in this case. We have honored deadlines that are issued with very short notice, we have conferred repeatedly, we are trying to work out stipulations for a number of witnesses. I understand trying to run the trial quickly and efficiently, but to be honest, your Honor, it is a lot of work.
JUDGE NATHAN: I am aware of that, Ms. Menninger. My point is a nonresponsive witness is not a little thing.
MS. MENNINGER: There have been -- I mean, I don't know the number, but 40 witnesses, your Honor. We are working -- we've been flying people across the country, across the pond. Our client's life is on the line and we're being given one day it to put on a defense, one and a half days, and there is one witness that we're having problems with. We're not asking for some weeks' long delay.
JUDGE NATHAN: So far, I have nothing.
MS. MENNINGER: I have made an oral application, your Honor. I understand we will get someone working on a written one right away.
JUDGE NATHAN: Give me a written application, give me a proposed order within a half an hour.
MS. COMEY: Your Honor, I need to resist the characterization that the defendant has just made. The defense has had an extraordinary amount of time between the resting of the government's case and putting on their case. They have had five full days, including three business days. They had extra days' notice that we were going to rest on Friday of last week, and they had plenty of time in advance of trial to plan for this. So we strongly disagree with the suggestion that defense counsel has been unduly rushed here.
MS. MENNINGER: I can go back and forth on this, as well, your Honor.
JUDGE NATHAN: We're not going to go back and forth. The record is what it is. There was a five-day, three-business-day break between the close of the government's case. The record will reflect when you learned when the government will likely rest, the record will reflect what you said regarding when you learned of a nonresponsive witness, and the record will reflect that I will take an application within a half an hour with an opportunity for the government to respond all in the interest of conforming to my standard practice, which is everybody has their next witness or be prepared to rest or bring in a different witness. Now, we'll take it as it comes. What I'm learning, what is new information to me today, which is different than yesterday, when we knew when I was informed that the defense would rest today with the exception of some small issue or document that Ms. Menninger put aside. There is no argument about a subpoenaed witness who is nonresponsive. There was no suggestion of a need for a witness to fly in from England. So I'm learning that today. We've lost the time that we might have had, had it been raised sooner. I'll still accept the application, but do I have a standard practice, which is you have your witnesses or you rest. I have about 40 prior inconsistent statements to rule on. Anything else before we take that up?
MS. COMEY: No, your Honor.
JUDGE NATHAN: Anything else to take up before?
MS. MENNINGER: I'm trying to get in touch with someone from the office, your Honor.
JUDGE NATHAN: Defense seeks to admit extrinsic evidence of a prior inconsistent statement under 613(b), which requires that, quote, the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it. My colleague, Judge Kaplan, in the Gulani (ph.) case, hopefully laid out the proper steps of the analysis. First, the Court must determine whether the proffered statement, in fact, is inconsistent with the testimony sought to be impeached. The test is whether there is any variance between the statement and the testimony that has a reasonable bearing on credibility. Actually, I just thought of something, a question, Ms. Menninger. The witness you haven't been in touch with, is that one of the witnesses for whom you sought to testify under a pseudonym?
MS. MENNINGER: No, it was not, your Honor.
JUDGE NATHAN: Okay. Just wanted to ask that. Second, the parties seeking to offer extrinsic evidence of a prior inconsistent statement must have laid a proper foundation for doing so by affording, A, the witness an opportunity to explain or deny the prior inconsistent statement; and B, the opposite party an opportunity to question the witness about it. Third, the extrinsic evidence of the prior inconsistent statement must be competent and otherwise admissible. Fourth, the impeachment by prior inconsistent statement must relate to material rather than a collateral matter. Finally, even if all these requirements have been satisfied, the trial court nevertheless may exclude the extrinsic evidence under Rule 403 on an appropriate finding. That's United States v. Gulani, 761 F. Supp. 2d 114. (S.D.N.Y. 2011). At issue first is step 2, whether the witness being impeached had an opportunity to explain or deny the statement.
Parties have diametrically opposed interpretations of this requirement, but in support of its position that the witness need not be shown the prior statement. The defense has repeatedly relied on rule 613(a), which uses different language and is about impeachment by prior inconsistent statement on cross examination, not introduction of a prior statement as extrinsic evidence as it seeks to do here. So the opportunity to explain the statement should consist of something more than just the opportunity to admit or deny making the statement. That's right in Miller, 28 Federal Practice and Procedure Evidence, Section 6205, Note 1, Second Edition 2021. Citing a Seventh Circuit case and an Eleventh Circuit case. Now I'm going to quote from Gulani again. A trial court has discretion to require satisfaction of the latter requirement before the extrinsic evidence is offered or alternatively to permit it to be satisfied by recalling the witness after the extrinsic evidence is received.
In a case called Surdow, S-u-r-d-o-w, the Second Circuit stated that the district court has broad discretion to exclude extrinsic impeachment evidence that was not revealed while the witness was on the stand or at least before the witness was permitted to leave the court. That's United States v. Surdow, 121 F.Appx. 898 (2d Cir. 2005), collecting authorities. Therefore, the Court will sustain the government's objection as to all proposed prior inconsistent statements to which the witness was not presented with the statement to explain or deny it. Next at issue is the first step of whether the witness's testimony and the prior statement are inconsistent. I provide the following guidance before we turn to the specifics. First, if the statement was presented to the witness and the witness admitted to making the statement, then extrinsic evidence is inappropriate, and the parties apparently agree on this point in their last two letters as do circuit courts who have decided the issue.
That's true for the Fifth Circuit, Sixth Circuit, and Tenth Circuit. Second, the prior inconsistent statement must actually be the witness's statement to show an inconsistency. United States v. Almonte, 956 F.2d 27, (2d Cir. 1992). Where the defense relies on a third party's characterization of the witness's words rather than a verbatim transcript, then the witness must have subscribed to that characterization. On that basis, notes taken in law enforcement interviews will generally not prove an inconsistency for purposes of rule 613(b). See, for example, United States v. Leonardi, 623 F.2d 746, the Gulani case and others. Of course, that infirmity is solved by calling the interviewing officer as a witness or to avoid calling another witness, the government stipulates to the accuracy of the notes. Third, as I previously explained, testimony that a witness does not recall making a statement may be but is not necessarily a basis for inconsistency.
Finally, I'll apply 403, consistent with my prior rulings of prior inconsistent statement has already been read in full into the record. I'll sustain the government's objection to admitting the statement as extrinsic evidence. See, for example, United States v. King, 560 F.2d 122 (2d Cir. 1977). Stating where evidence is admissible under 613, it could be excluded under 403. With that, we can turn to the list of the prior statements and I'll do my best to apply that guidance I've just given in light of the arguments raised by the parties and my review of the transcript. So beginning with Jane, transcript at 447, I will
JUDGE NATHAN: overrule. Jane denied the statement in the handwritten notes, which is an inconsistency, even if the later 302 corroborates Jane's testimony. I will overrule that government objection. Transcript at 455, I'll sustain the government's objection for two reasons. The full statement was read into the record and Jane responded it was, quote, correct, I guess, admitting the statement. Transcript at 470 to 71, overruled. Here the defense has adequately identified the statement at issue. Transcript at 471, sustained. As I said at the time, the timeframe of that question was too unclear to create an inconsistency and no statement was presented to Jane to explain or deny it. Transcript at 473 to 74, overruled. That's provided admissible evidence either via stipulation or a witness is used to prove the notes. Transcript at 475, sustained. Jane's prior statement was that she was not sure where the incident happened, so there is no inconsistency.
She also answered "I don't recall" to each question, so there is no inconsistency. Transcript 475 to 76, I'll sustain. The defense's questions did not track the 302 report, does not refer to whether the defendant touched Jane or not. The defense referred Jane to the December 2019 interview document, but then asked questions about the February 2020 interview. So there is an inadequate basis for inconsistency. Transcript at 476, lines 2 through 4, sustained. Again, the defense referred Jane to the incorrect interview and for the statement it now seeks to admit in Jane's statement that she doesn't recall, she said she was not sure is not an inconsistency. Transcript at 476, lines 8 through 10, sustained. The question follows the above entry and again fails to properly orient Jane, and Jane said "I don't recall," which is not inconsistent. Transcript at 476, lines 14 through 16, sustained for the same reasons as the last two.
Transcript at 476, line 17 through 19, sustained for the same reasons. Transcript at 477, sustained for the same reasons. Transcript at 478, overruled. Transcript at 479 to 80, overruled. Transcript at 480, sustained. There is no inconsistency, because Jane's answer that she doesn't remember and her prior statement that she did not know whether Ms. Maxwell was present, there is no inconsistency. Transcript at 499, 507 to 508, I will overrule. Transcript at 506 to 7, sustained. Jane admitted to making the prior statement. Transcript at 512 to 13, sustained. Jane's prior statement that they hiked is not inconsistent with her testimony. Also not material. Transcript at 513, overruled. Transcript at 514, overruled. Transcript at 514 to 15, sustained. Jane's prior statement about abuse in New York not being, quote, a group thing, is not inconsistent with her testimony. Transcript at 521 to 22, sustained. Jane agreed with virtually all of the details of this event, except for the timeline, which she said she does not remember and is not a basis for inconsistency and it goes to a collateral matter. 532, sustained. Statement was read aloud. 596, sustained, the statement was read aloud. That's, I believe, all of the Jane statements; is that correct?
MS. COMEY: Yes, your Honor.
MS. MENNINGER: Yes, your Honor. The parties had agreed to a few either being in or out before we submitted this, so those are part of the record your Honor just gave, but the parties know what they are.
MS. COMEY: Yes, your Honor.
JUDGE NATHAN: Thank you, Ms. Menninger, for that clarification. Next, Annie. Transcript at 2151, sustained. She acknowledged the statement but said she didn't recall making it. So there is no inference of inconsistency. Transcript at 2160 to 61, sustained. Annie said -- there is not an inconsistency. Annie said she didn't recall a chef, but, quote, that makes sense to me that there was a chef there, quote. It also goes only to a collateral issue. Transcript at 2165 to 66, sustained. Statement was already read out loud, testimony is not inconsistent, and the amount of horseback riding is collateral. Transcript at 2174 to 76 and 2194 to 95, I'll sustain. I sustained two objections to continuing question on this issue. Statement was read aloud and the defense made and can make its impeachment argument. 2182 to 83, sustained. The statement was read aloud. 2185 to 86, sustained. The statement was read aloud and there is no inconsistency as I previously ruled at 2186. 2195, sustained for the same reasons I just indicated. 2197 and 98, sustained. Annie did not earlier characterize Ms. Maxwell as, quote, disinterested, but that's not an inconsistency. Further, Annie had no opportunity to explain or deny the statement or lack thereof. 2209 to 13, sustained. There isn't an inconsistency and Annie answered, "I don't recall." 2224, sustained. I think that's it. And just on that last one, it was read aloud and I don't see an inference of inconsistency. Anything else on that?
MS. COMEY: No, your Honor.
JUDGE NATHAN: Ms. Menninger?
MS. MENNINGER: No, your Honor.
JUDGE NATHAN: Again, recognizing that the parties had agreed on others.
MS. MENNINGER: Yes, your Honor. Just with respect to one thing your Honor just said, because the statement was read aloud, I believe the phrase you just used was the defense can make the impeachment argument. Because the quote was read aloud, even if the witness doesn't recall making the statement does not prohibit us from making an argument to the jury that the statement was, in fact, made to law enforcement and impeaches the witness's testimony; correct?
JUDGE NATHAN: If it's in the record, that inference is available to argue. Any disagreement?
MS. COMEY: No objection, your Honor.
MS. MENNINGER: I just want to make sure in closing arguments --
JUDGE NATHAN: I totally appreciate that. And anything to avoid objections during closing argument.
MS. COMEY: Obviously it's not for the truth, it's for impeachment, but no objection to that argument.
MS. MENNINGER: I think impeachment is for the truth, your Honor.
JUDGE NATHAN: That is way more metaphysical than I can handle at this moment.
MS. MENNINGER: Thank you.
JUDGE NATHAN: Thank you.
MS. COMEY: Your Honor, I would note that in light of the rulings on the Annie Farmer statements, it appears that there is no longer any relevance for calling AUSA Rossmiller as a witness, and I just want to confirm that he is released from potentially having to testify.
JUDGE NATHAN: I think that's a conferral question. I don't have a basis to know.
MS. COMEY: Yes, your Honor. I'm asking so that there is a clear record.
JUDGE NATHAN: Okay. Ms. Menninger, you can think about it.
MS. MENNINGER: I'm not sure what the status is of this email with Mr. Glassman about The Lion King, if that was a stipulation --
MS. COMEY: Your Honor, I believe that was precluded. Your Honor's ruling about testimony from attorneys was that the only permissible testimony would have been the email from -- the statement by Mr. Glassman about whether testifying would help her case and that all other testimony about attorneys would be precluded.
JUDGE NATHAN: If this is implicated in the motion related to calling the three attorneys, then that was my ruling with respect to that.
MS. MENNINGER: I'll have to look back at that, your Honor. That's the only other thing that's coming to mind with respect to Mr. Rossmiller's potential --
JUDGE NATHAN: That series was questioned during the testimony, which may have been my basis.
MS. MENNINGER: It may be, your Honor. I just don't remember if the witness --
JUDGE NATHAN: It's fine.
MS. MENNINGER: Said she didn't know about it because it was her lawyer who had had the communication.
MS. COMEY: My recollection, your Honor, is that we had this discussion on the record and that Jane testified that she was told at some point about The Lion King coming out in 1997, and I think defense counsel elicited from her that that was -- that it was after that, that she had a different memory about her travel to New York. So I think the record is available for defense to make the argument it wants to make.
MS. MENNINGER: I think, as your Honor heard from Dr. Loftus yesterday, the fact that someone suggests an answer and that may be the part that wasn't clear from Jane's testimony, because it came through her attorney, Mr. Rossmiller, but I'll go back and take a look at your Honor's ruling and raise any issues with the government in conferral.
JUDGE NATHAN: Okay. I will cross whatever bridge you put in front of me. I'm looking at my ruling on the three attorneys, which kept out that testimony. What else? We do have all our jurors.
MR. EVERDELL: Your Honor, I anticipate that one of the witnesses this morning, the defense will call Special Agent Amanda Young, who is one of the case agents on the investigation. I just want to make clear that she be called as a witness who's associated with an adverse party. So I intend to use leading questions under rule 611(c).
JUDGE NATHAN: I always encourage you to try -- you begin with direct and if she becomes adversarial, truth comes out in direct questions, but if you're not getting response to the answers or you're getting somewhat responsive answers but it's delaying, I'll take the application. Ms. Comey, did you have something?
MS. COMEY: I just wanted to note, your Honor, that my understanding of Agent Young's testimony is that it's going to be about the prior inconsistent statements of Jane that your Honor has ruled are admissible. I don't imagine that much leading will be necessary for that.
MR. EVERDELL: Your Honor, I intend to go into other aspects with Special Agent Young.
JUDGE NATHAN: Like what?
MR. EVERDELL: Well, I believe, under your Honor's ruling, I'm allowed to inquire about the absence of evidence, and there is an absence of evidence in this case.
JUDGE NATHAN: Give me an example question.
MR. EVERDELL: Well, there is no emails from the 1990s, there is no geo location. I want to make that clear for the jury, these are all things that I think jurors in the modern era would expect, and there is none here, given the age of the case. There is no phone records. There is no -- there is lots of things that you might expect to be part of the case that are not here. The main reason for that is that the age of the case, especially the allegations in the 1990s are quite old and these records don't exist anymore. So I think it's fair to raise to the agent the absence of evidence, that evidence through the agent. That's one topic.
JUDGE NATHAN: So, for example, give me your example question on emails.
MR. EVERDELL: It's in here somewhere, your Honor. As part of your investigating the case, you tried to gather as much documentary evidence as you can to corroborate what the witnesses are telling you, isn't that right. I imagine the answer is going to be yes to that. And given the age of the case, there were no emails from the 1990s, there are allegations in this case from the 1990s, correct, yeah. There are no emails that you have for any of the accusing witnesses who testified against Ms. Maxwell from the 1990s, is that right, yes. Because, in fact, in the 1990s, nobody used email, it wasn't very popular, it was just starting, yes. So because the allegations are over 25 years old, there are no emails in this case from that period, isn't that right, yes, there is no emails. Same thing about phone --
JUDGE NATHAN: I'm sorry. I cut you off, Mr. Everdell. Same thing about phone records?
MR. EVERDELL: Phone records, geo location information, things like that.
MR. ROHRBACH: This implicates at least two of the Court's rulings on the subject. One is that the defense can't elicit direct testimony about investigative steps that the government did or did not take. And the other is defense can't elicit direct testimony about the thoroughness of the government's investigation. As your Honor ruled, they can say in their closing there is no email evidence before you that goes to defendant's guilt or innocence, but they can't elicit testimony from the special agent, the government's case agent about the steps the government did or did not take or why the government did or did not take them and what that says about the thoroughness of the government's investigation.
MR. EVERDELL: Your Honor, I believe I am allowed to comment on the absence of evidence. I'm allowed to put that in through a witness if I choose and this is the witness to do it.
JUDGE NATHAN: Not inconsistent with my ruling.
MR. EVERDELL: I understand that, your Honor.
JUDGE NATHAN: I'll pull it up and look again, but with respect to the ability to cross examine witnesses put on to show the thoroughness of the investigation, you can cross on the failure to do that. The absence of evidence is arguments that you can make comments on, of course, and seek the jury to conclude from it what it likes in the course of its investigation, but I specifically precluded direct evidence of failure of investigative techniques.
MR. EVERDELL: I'm not saying an investigative technique per se, your Honor. I'm simply pointing out that evidence that a jury might expect to see, given we are in the modern era, is not present in front of them because of the age of the allegations. So I think this point through the agent clarifies the fact that these records don't exist anymore, they tried to get them, I think, and they didn't exist. It's not a particular technique, it's just highlighting the fact that, in a case of this age, there are records that have disappeared, phone records get deleted after a while, there is no such thing as geo location information, there weren't cellphones that had these things. So pointing it out to the agent is simply pointing out the absence of evidence because there wouldn't be anything in the record to argue that to the jury if I'm not allowed to put that in front of -- through this agent. I mean, there needs to be some explanation of the fact that I think this agent could provide that these people didn't have cellphones to their knowledge, so they wouldn't have had geo location information and that's why we don't have it in this case.
MR. ROHRBACH: I'm a little confused why the defense wants to put this in, your Honor. We've had testimony in this case from a custodian and others about what recordkeeping practices are like. It's not clear to me that Special Agent Young will have knowledge about the use of cellphones and availability of geo location data, personal knowledge from that era, unless the question is, did you take an investigative step to hire that data and did it exist or not exist, and that is precisely the kind of question that is improper. Your Honor, the government did not open this door on its direct case, so there is no room for the defense to start eliciting direct testimony on this point. The absence of geo location information is clear in the record from the absence of geo location information in the record.
JUDGE NATHAN: That's right. It sounds like what you're trying to do is have the inference of steps not taken in order to emphasize, argumentatively, the absence of evidence, which you can make those arguments in summation.
MR. EVERDELL: I'll be honest with the Court, I truly don't understand the distinction between investigative steps versus absence of evidence, because they are inextricably linked in my mind. I'm trying to walk the line because I do understand the Court's ruling, but if I'm allowed to get into absence of evidence and argue that to the jury, I have to be able to point out in the direct case what they're not seeing, what absence of evidence there is.
JUDGE NATHAN: Why can't you do that?
MR. EVERDELL: What I'm trying to do is do it through the agent and just elicit from the agent that there were no phone records because phone records get deleted after a certain amount of time, but I believe they tried to get phone records, but none existed because of the age of the allegations. I mean, geo location, I think anybody who could testify to the fact that there aren't geo location -- the information, especially an FBI agent because cellphones didn't exist back then, there weren't records available back then. And emails, too, that there were no emails to get because of the age of the case. That's all I'm trying to do with that point, your Honor, is elicit the absence of evidence so that we can then argue it in front of the jury.
MR. ROHRBACH: Your Honor, they don't have to elicit the absence of evidence in order to argue to the jury that the evidence is absent. So to the extent they are trying to elicit the absence of evidence through Special Agent Young is just the argument they want to make in closing made through leading questions on direct examination of a federal law enforcement agent.
JUDGE NATHAN: I'm just going to reread the relevant portion of the transcript. I will take them as they come, but my instinct is the government is correct, you're either violating my rule or you're being argumentative in a way that you can argue from an absence in closing.
MR. EVERDELL: Your Honor --
JUDGE NATHAN: Or there would be foundation issues, which, if probed into, essentially would be violative of my order to the extent that you're making arguments -- to the extent that foundational inferences are essentially asking the agent what she did or didn't do, which is precisely a violation of my order. And the whole point of the -- I mean, the whole point of not allowing the defense to put on a case about what the government did or didn't do and the motivations and the like is because that's the question for the jury. The question for the jury is, does the evidence that the government put on, that they deemed credible, prove beyond a reasonable doubt or not the charges. That is the core basis of my in limine holding.
MR. EVERDELL: I'm not trying to violate this, which is why we're discussing this, your Honor. I just thought there was some room to be able to elicit evidence about the absence of evidence rather than just argument to the jury, and that's what I was intending to do with this witness. If the Court thinks what I've just proposed, that's generally the tenor of the questions on that point are, violative of the order, I might have to think it out and not be able to go into it because of what you're saying, but I hear what you're saying.
JUDGE NATHAN: Yeah, I mean, take it -- imagine it's a modern case, right, and you ask why didn't you get geo location evidence, it's asking what the government did or didn't do. You essentially want the -- I'm a little with Mr. Rohrbach. I'm not sure why you want the government or if this is a spin to make -- to try to hide what the question is doing, but you want the government to testify, well, we didn't get geo location information because it didn't exist.
MR. EVERDELL: Your Honor, I'll be very transparent. I think the point is highlighting the age of the allegations, which I think is a fair point to make to the jury. These are allegations that are 25 years old, and when you make a case on allegations that are more than 25 years old, you're not going to have the same type of corroboration available to you because records get destroyed in that amount of time. The records aren't available that long ago that are available today that you might otherwise expect to to see in a case like this. But the bigger point is just the age of the allegations. So the absence of evidence goes to the fact that these are 25-year-old allegations.
(Continued on next page)
JUDGE NATHAN: How about this: I'll let you ask the agent -- I suppose I'll hear from the government. What is the time period of the allegations that she investigated?
MS. COMEY: Your Honor, I think that the investigation that this agent was the case agent for was much broader than the charges here. And so it could lead to avenues that are not appropriate for this trial and that are irrelevant to this trial. And I think that your Honor's pretrial ruling was crystal clear here that this is not appropriate direct testimony by the defense. Defense counsel, in almost every trial, stands up in front of a jury and says, You didn't see this kind of evidence, you didn't see DNA, you didn't see phone records. And they don't need to put an agent on the stand to prove that negative. They are able to make that argument without having to put on that case through affirmative agent testimony, and the same is true here.
JUDGE NATHAN: You can certainly argue to the jury from the indictment and what they are being instructed to determine what the age of the allegations are.
MR. EVERDELL: Okay. I understand, your Honor. As we're doing this, I think maybe we should raise a few other points, since I don't want to violate the judge's ruling. I do intend to go through with this witness whether they followed up on certain things that they heard in the interviews, like, for example -- I'll give an example. We heard from Jane testimony -- she confirmed on the stand that she told the government that she was involved in sexualized massages with multiple people, and she named the first names of several of those people. I believe we know from what she was saying to the government who those people are, it's the subject of some of these submissions we made to the Court about other witnesses that we want to call. My understanding is from looking at the records that were provided to us, they didn't follow up and talk to some of these witnesses, right. So, for example, one of the names mentioned was Michelle. We think we know who that Michelle is.
That Michelle was evident to the government because there was a Michelle -- at least one Michelle. One Michelle was communicated to the government by another witness that worked in the office. They never spoke to that Michelle. Same thing with some of the other people that were mentioned; never spoke to them. And I think that under your Honor's ruling, even though that, I guess, is an investigative step, and I'm looking at your Honor's ruling now, you were talking about the Watson case, and you said that some arguments about the thoroughness of the investigation are probative of guilt in some circumstances. In that case, law enforcement had received a tip that the defendant was innocent because another individual shot the victim.
The Second Circuit stated that cross-examination of the lead investigating officer on that tip was probative because the jury could conclude that law enforcement had prematurely concluded the defendant was the shooter and it failed to investigate diligently the possibility that it was the other individual. That was the Watson case. I think we want to make these points, your Honor, because I think the point to the jury is the government credited the witnesses, the accusers in this case, without following up on the information that they provided to see if it was wrong. Not following up on that information is probative of the defendant's guilt or innocence in this case; because had they followed up, we believe they would have heard that that was not true from these witnesses. And so that goes to the guilt or innocence of this defendant. I do intend to get into that on the stand and talk to them about, You spoke to Jane on X date.
And on that date she told you about group sexualized massages involving this person and that person; isn't that right? Yes. Spoke to her on another date; she mentioned a few other names. Spoke to her on a third date; she mentioned names again, and she gave physical descriptions of these people. She said certain details about these people which I will elicit. You were aware of someone named Michelle in this case. You were aware, for example, of this Michelle -- and I'm going to have to use her full name, because we lost the anonymity issue, but you're aware that there was a Michelle Healy who worked in the office. You never spoke to Michelle Healy, did you? So I would like to be able to do that. Under your Honor's ruling, I believe, that's appropriate under the Watson case.
JUDGE NATHAN: Mr. Rohrbach.
MR. ROHRBACH: Your Honor, I disagree with almost every premise of what Mr. Everdell just said. But the core legal issue is one the Court has already analyzed which is the Watson case is a Brady case. It doesn't stand for anything, as the Second Circuit has held, about exactly what sorts of evidence can and can't come in. The Court has explained that the challenges of the thoroughness of the investigation can come in in lots of ways, including cross-examination. The defense counsel could and did ask Jane when she testified who was in the room during the massages. They can put on evidence of witnesses who they believe are the other people in the room. But what they can't do is in their direct case, call a case agent and say, You didn't take this investigative step; you didn't take that investigative step. That is precisely the challenge to the thoroughness of the investigation that's precluded.
JUDGE NATHAN: I've relitigated so many issues in this case, so I suppose this is just going out with the same pattern. But I said in my ruling, in its brief, the defense seeks to affirmatively -- and I'll quote from the brief -- "call FBI case agents as witnesses" to ask who they talked to, what documents they subpoenaed, and when. But as the Second Circuit explained in Saldarriaga, the government's use or nonuse of certain investigative techniques does not tend to show the defendant's innocence of the charges. That's transcript at page 20. And I also said I would permit the defense to cross-examine law enforcement officers about the investigative steps that were taken if the government puts the thoroughness of the investigation into issue, as this too would be permissible impeachment on cross, and they did not. I suppose words have meaning in the eyes of the beholder, but what you're suggesting is directly contrary to my ruling.
MR. EVERDELL: Your Honor, I did see that. I'm not trying to be contrary. I just went back to the premise of your ruling when I was looking at the transcript cites and the cases that you cited as premise for your ruling. And because this issue became a live issue when we had Jane's testimony, I thought it appropriate to see if we could revisit this to see if this was now appropriate line of cross.
JUDGE NATHAN: No.
MR. EVERDELL: Understood, your Honor. Okay. Then there are two other issues then. I did want to get into this with this witness, that the investigation of the allegations against Ms. Maxwell started with the first three of the accusers, and that time period was focused, so that's Jane, Annie Farmer, and Kate. And that time period was focused on '94 to '97. And then they got an indictment based on those charges. And then later, they talked to Carolyn and they amended the indictment, and those allegations relate to a later time period, 2001 to 2004, and that those are the subject of the last two counts in the indictment, Counts Five and Six. The purpose of this, your Honor, is just to be able to show the jury that there are -- there's a difference between those counts and who the witnesses are, information whose evidence is related to those counts. And I think that's relevant to be able to explain that to the jury without getting -- it doesn't really talk about investigative steps; it's just simply saying, You talked to Carolyn after you spoke to these three first. These are the three who you originally had evidence from against Ms. Maxwell. Carolyn came to you later. You spoke to her first in 2019; she wanted to talk to you with a lawyer. You didn't speak to her again until a year later. At that point you did meet with her. You took her information, you got her account, and then you amended the indictment and added her allegations at that point. And those refer to the last two counts in the indictment.
MR. ROHRBACH: Your Honor, this is another issue the Court has already ruled on. This is evidence and testimony about the path of the investigation, the government's charging decisions along the way.
JUDGE NATHAN: Could you pull up the mic.
MR. ROHRBACH: This is proposed testimony about the government's charging decisions and the path of the investigation along the way, including when the defendant was a target for certain pieces of the investigation and certain counts of the indictment. I think the Court relied on Saldarriaga again and the Duncan opinion when it, in its pretrial rulings, excluded these lines of testimony. And in any event, I understand that Mr. Everdell wants to make this argument to the jury. This is an argument they can make in closing to the jury; but it's not something that they can elicit as evidence from the government's case agent.
MR. EVERDELL: Your Honor, I don't know how I can make that argument to the jury when there are no facts about when they spoke to these witnesses.
JUDGE NATHAN: To what investigative steps they took.
MR. EVERDELL: When they spoke to the witnesses, if you're going to call that, broadly speaking, an investigative step --
JUDGE NATHAN: Again, just reading from my ruling, it was pretrial. So, as I said, if you think things changed on the ground, you can reargue. I'm not aware of anything changing on the ground here. But I said specifically, Call FBI agents as witnesses to ask who they talked to, what documents they subpoenaed, and when. But as the Second Circuit explained in Saldarriaga, the government's use or nonuse of certain investigative techniques does not tend to show defendant's innocence of the charges. What I hear you asking now, again, is either precluded by that ruling or to the extent it's slightly different, it's unclear to me what the relevance is and would likely bleed over into what I've prohibited.
MR. EVERDELL: All right, your Honor. Well, I think my cross just got a lot shorter.
JUDGE NATHAN: Maybe now you can stipulate to this agent's testimony, since this was why you wouldn't.
MS. COMEY: Your Honor, I will reiterate our willingness to stipulate to this agent's testimony on prior inconsistent statements.
MR. EVERDELL: The one other point --
JUDGE NATHAN: Mr. Pagliuca told me yesterday the reason to do it with the agent was efficiency, which I would say he said it with a straight face, but I can't tell with the mask on.
MR. EVERDELL: Your Honor, I would just raise one last point, since we're going through all this. I also would like to go through with Agent Young the fact of the search that occurred in Mr. Epstein's residence in 2019. The number of devices that were taken, the fact that she, I believe, reviewed virtually everything that was on those devices personally -- maybe not all of it, but the vast majority of it. There were millions of pages, millions of files in those documents. And we have only -- the government has only presented a certain number of those for the jury. But I think I need to be able to get out the fact that there were millions and millions of pages --
JUDGE NATHAN: That's in evidence, is it not?
MR. EVERDELL: I don't know the number of files that were extracted from the devices is in evidence. I believe she would know at least anecdotally, because I think she reviewed all of this.
JUDGE NATHAN: Do you have the witness who extracted? Didn't we have the person?
MR. EVERDELL: We had Mr. Flatley.
MS. COMEY: That was Kimberly Meder, your Honor. And Ms. Menninger on cross-examination of Ms. Meder did elicit that there were thousands of photographs seized, and that there was only obviously a subset that was presented to the jury.
MS. MENNINGER: Right. Ms. Meder only was speaking to photographs, your Honor, not to the number of devices.
MS. COMEY: Your Honor, I would note that that was a situation where we called a witness affirmatively in our case to talk about photographic evidence that was seized; and then the defense properly cross-examined that witness about that evidence. What the defense is now suggesting they should be able to do is bring in a whole host of other investigative steps. There was Mr. Flatley, who testified about extraction from a single hard drive. I believe what Mr. Everdell is talking about is all of the other devices that were seized throughout the course of this investigation. And I think that that would be in violation of the Court's order. It would also be extremely confusing, because when we're talking about this investigation, it's a little ambiguous what we're talking about, as we alluded to earlier. This investigation was broader than just what resulted in these charges.
MS. MENNINGER: Well, your Honor, there was a search that the government elicited information about that occurred in 2019 of our alleged co-conspirator's home. The question can be phrased because they --
JUDGE NATHAN: Which witness was that?
MS. MENNINGER: Ms. -- which witness what?
JUDGE NATHAN: I thought you just said the government put on evidence of the search.
MS. MENNINGER: I think it was not Ms. Meder -- Maguire, Kelly Maguire.
MR. EVERDELL: She was the agent who did the search.
JUDGE NATHAN: Did you cross on devices found?
MR. EVERDELL: I don't believe I did, your Honor.
JUDGE NATHAN: Why not? I mean, I'm not trying to probe strategy but, like, isn't that precisely --
MS. MENNINGER: I think Maguire only did certain parts of the search, in the same way that the Palm Beach -- there were only agents that did certain parts of the search. Agent Young was in charge of the search more broadly.
MS. COMEY: Your Honor, that's not accurate. Special Agent Maguire testified that she was the search team leader who oversaw the entire search of that New York residence. And this was absolutely an avenue of cross that defense could have taken. We may have objected, depending on how it was phrased, but we put on the search team leader from that search.
MR. EVERDELL: But, your Honor, I don't think Agent Maguire extracted the files from the devices.
JUDGE NATHAN: Did Agent Young extract the files from the devices?
MR. EVERDELL: She didn't. But she reviewed, I believe, every file that was extracted from the devices; so she knows generally how many there were and what types there were.
MS. COMEY: Your Honor, we put on the witness who extracted all of the files from all of these devices. That's Stephen Flatley. He was on the stand. And we put on a witness who reviewed all the photographs. That was Kimberly Meder. She was on the stand. What the defense wants to do now is impeach the investigation, that is what this is about.
JUDGE NATHAN: Okay. You had the opportunity to ask witnesses put on by the government. Consistent with my ruling, to the extent they put the thoroughness of the investigation -- I wouldn't say it was thoroughness, but they put the relevant agent who you could have crossed on this on the stand. And maybe there would have been an objection, to the extent you were calling into question the thoroughness of the investigation without it being raised. I might not have permitted it there, but I certainly won't permit it further removed as direct evidence of the thoroughness of the government's investigation and investigative steps, which is precluded by my November 1st ruling.
MR. EVERDELL: Understood, your Honor.
JUDGE NATHAN: Thank you.
MS. COMEY: So then to be clear, your Honor, is it the case that Agent Young is only being called for prior inconsistent statements?
MR. EVERDELL: Maybe we need to confer a little bit before this.
JUDGE NATHAN: Okay. Who's the first witness?
MR. PAGLIUCA: Jason Richards, your Honor, Special Agent Richards, which is a short witness.
MS. COMEY: That's another witness we offered to stipulate to, your Honor. Prior inconsistent statements, I think there are two that he's going to be called to testify --
JUDGE NATHAN: That he's just doing those, Mr. Pagliuca, or anything else?
MR. PAGLIUCA: Excuse me, your Honor?
JUDGE NATHAN: I'm sorry. Is he just doing those two --
MR. PAGLIUCA: Yes, that's it.
JUDGE NATHAN: Okay. And then who's after that?
MR. EVERDELL: Well, it would have been Young, Agent Young.
JUDGE NATHAN: Okay.
MR. EVERDELL: And then it's -- we have Eva Dubin.
JUDGE NATHAN: Okay. Why don't we do Richards and then Dubin, and see if you can stipulate on Young. Does that make sense?
MR. PAGLIUCA: I don't believe Ms. Dubin is here yet, your Honor. I had her scheduled for 11 o'clock this morning --
JUDGE NATHAN: Okay.
MR. PAGLIUCA: -- in anticipation of some other testimony. I can reach out to her lawyer and see if she can be here earlier.
MS. COMEY: Your Honor, if the defense doesn't have a witness and would like to put on Agent Young, we can go ahead and put on Agent Young. Again, we offered to stipulate.
JUDGE NATHAN: Well, here we are. We don't have another witness at the moment?
MR. EVERDELL: We have -- one moment, your Honor.
(Counsel conferred)
MS. MENNINGER: We haven't spoken to the people out in the hall who have the witnesses. So if we can have a minute to figure this out.
JUDGE NATHAN: Okay. Why don't I give you a couple minutes. We'll let the jury know we'll start in about 15 minutes, so they know we haven't forgotten about them. See what you want to do, and then we'll come back and get started where we can. Do I have a filing yet, Ms. Menninger?
MS. MENNINGER: No, your Honor. I wasn't able to reach people in Colorado. They weren't at the office yet.
JUDGE NATHAN: I'm sorry?
MS. MENNINGER: They were not at the office yet in Colorado when I reached out to the office.
JUDGE NATHAN: Okay. I'll step down.
(Recess)
JUDGE NATHAN: Where are we?
MS. COMEY: Your Honor, I believe the defense is not going to stipulate, but I'll let them speak for themselves.
MS. MENNINGER: That's right.
JUDGE NATHAN: Okay. Then we should definitely get going.
MR. PAGLIUCA: I'll get the next witness, if that's all right.
JUDGE NATHAN: We'll bring in the jury and then get the witness ready to come in. Ms. Menninger, the Rule 17 subpoena return date when for the witness who isn't here?
MS. MENNINGER: The subpoena return date was for the first day of trial. And for each one of them we communicated to place them on call because we didn't know when we would need them, and we didn't want them to have to wait here, so --
JUDGE NATHAN: Okay. First day of trial.
MS. MENNINGER: Yes, your Honor.
JUDGE NATHAN: Okay. So the witness should just wait to be called.
MS. MENNINGER: Your Honor, if I may complete that record. She was served on December 1st. So she was served after the start of the trial.
JUDGE NATHAN: Do I have an application yet, Ms. Menninger?
MS. MENNINGER: No, your Honor.
JUDGE NATHAN: Okay. Bring in the jury.
(Jury present)
JUDGE NATHAN: Good morning, members of the jury. I apologize for the delay. We were working through issues that I think will make fewer sidebars, so thank you for your patience. Mr. Pagliuca, you may call your next witness.
MR. PAGLIUCA: Thank you, your Honor. Our next witness is Special Agent Jason Richards.
JUDGE NATHAN: Okay. Jason Richards may come forward. JASON RICHARDS called as a witness by the Defendant, having been duly sworn, testified as follows:
JUDGE NATHAN: You may inquire, Mr. Pagliuca.
MR. PAGLIUCA: Thank you, your Honor.