Jury Note Ruling on Annie’s Testimony and Deliberation Administration
67 linesJUDGE NATHAN: I have a note. Court Exhibit 9. Can we consider Annie's testimony as conspiracy to commit a crime in Counts One and Three?
MS. COMEY: The one-word answer would be correct here, your Honor, yes.
JUDGE NATHAN: Government's proposal is yes.
MR. EVERDELL: Your Honor, if we could just have a minute to confer on this?
JUDGE NATHAN: Sure. And would counsel like to look at the note?
MR. EVERDELL: Yes, please.
JUDGE NATHAN: Ms. Comey, you may also take a look, if you like.
MS. COMEY: Thank you, your Honor.
JUDGE NATHAN: Mr. Everdell.
MR. EVERDELL: Your Honor, I think --
JUDGE NATHAN: Clearly the substantive answer is yes.
MR. EVERDELL: Well, I think, as we've discussed in the briefing and in the limiting instruction, the answer is a little more complicated than --
JUDGE NATHAN: Well, your view is more complicated. You took a different view. I have ruled differently. And so I think based -- I think it's clear based on my rulings the answer to the question is yes.
MR. EVERDELL: I think what we should do is give the jury the same limiting instruction as to her testimony that you gave before her testimony; because I think that actually gives the jury exactly what they can consider and not consider her testimony for.
MS. COMEY: Your Honor, the limiting instruction was targeted at Counts Two and Four, the substantive counts, to make clear that Annie's testimony was not the basis of a substantive count. I don't think it's necessary for Counts One and Three. I think the answer is clearly yes, made all the more so by the fact that Annie's testimony or a part of it is referenced as an overt act in the indictment in the instructions. I think the simplest answer and the correct answer is yes.
MR. EVERDELL: I don't think it's correct at all that it's only to Two and Four. Because the instruction was that you can't consider her testimony as a legal sexual activity as charged in the indictment. And that applies to One and Three as well.
MS. COMEY: Your Honor, that was not the limiting instruction. The limiting instruction was that what she describes is not illegal sexual activity as defined in the indictment.
JUDGE NATHAN: That's precisely the precision with which I have made this point. And the defense has continued to revert to the idea that the testimony can't be considered for that. That was the basis -- that was the basis for exclusion. But her testimony is relevant, may be considered by the jury with respect to the conspiracy counts. The answer is yes. And they are asking not for what it can't be used for, which is what the limiting instruction gave them, they are asking whether it may permissibly be considered for these counts. And the answer to that is yes under my rulings.
MR. EVERDELL: Your Honor, I respectfully think that what they are asking for is how can we consider her testimony.
JUDGE NATHAN: May I have the note back?
MS. COMEY: Yes, your Honor. It's a yes-or-no question.
JUDGE NATHAN: Can we consider Annie's testimony as conspiracy to commit a crime in Counts One and Three? The answer is yes, they can. Do you have a proposal for how to say that other than just yes? I'm happy to hear it.
MR. EVERDELL: Your Honor, my proposal is to give them the limiting instructions that we got before.
JUDGE NATHAN: The limiting instruction is nonresponsive to their question.
MR. EVERDELL: One moment, your Honor.
JUDGE NATHAN: They are not asking what it may not be used for. They have a specific question, I think, probably in light of the limiting instruction as to whether they may consider it for this. And the substantive answer to that is yes.
MR. EVERDELL: One moment, your Honor.
(Counsel conferred)
MR. EVERDELL: Your Honor, I think, as you're saying, to say yes, while technically accurate, allows the jury to then use her testimony more broadly if they aren't given the instruction of how they can use the testimony. So if the simple answer is yes, then the concern is that they would use it and apply the testimony more broadly. And so I think what was given before with the limits in the limiting instruction is how they can use it appropriately in testimony and should be given again.
MS. COMEY: That's not correct, your Honor. The answer should be yes, full stop.
MS. STERNHEIM: Judge, may I just be heard?
JUDGE NATHAN: You need your mic on.
MS. STERNHEIM: I apologize. It's like saying you could drive, but you have to abide by the speed limit. Here, it's saying you can just drive and not abide by anything when there is an instruction that limits their availability to use it in total. So I think it needs to be qualified.
MS. COMEY: Your Honor, if someone asked me if I drive, the direct answer would be yes or no.
MS. STERNHEIM: But if you're in an area that has a limit -- which we know is in the record, because the Court gave an instruction -- that would be part of it as well.
JUDGE NATHAN: All right. But I think the implication of this question is that they are following the limiting instruction and they want to know what it's relevant for. That's why they --
MS. STERNHEIM: We're reading into that. And if you want to ask them are they following the limiting instruction, then we would have clarity. But based upon this note, I don't think we have that precision.
MS. COMEY: Your Honor, the jury asked a very simple yes-or-no question. They need a very simple answer. The answer is yes.
JUDGE NATHAN: I will say, I received your question. I'll say, Yes, you may consider it.
MS. COMEY: Thank you, your Honor.
JUDGE NATHAN: All right. So I will say: I received your note. The answer is yes, you may consider it. Please, everybody be back at 4:55 and ready to go. I'll bring the jury out right at 5.
MS. COMEY: Yes, your Honor.
JUDGE NATHAN: Thank you.
(Recess pending verdict)
JUDGE NATHAN: So just to go over what I'm going to say, I'll say that I received their note regarding dismissal tonight at 5 p.m. and timing for tomorrow. That's fine. And we'll have lunch for them by noon tomorrow. I'll ask them to give Ms. Williams their lunch order on their way out. I would say what I said I would say regarding deliberations Thursday, if they wish. We got just a reminder from the chief judge to remind everyone to wear masks at all times, given where we are with the variant. So I'm going to just remind them, other than when briefly eating or drinking, they should have their mask on in the jury room. Anything else?
MS. COMEY: No, your Honor.
MS. STERNHEIM: No, thank you.
JUDGE NATHAN: All right. Please bring in the jury.
(Jury present)
JUDGE NATHAN: Thank you so much. First, I received your note regarding dismissal tonight at 5 p.m. and timing for tomorrow. That's fine. We will have lunch for you by noon tomorrow. Please do give Ms. Williams your lunch order on your way out. And as a reminder for the morning, when you come in, as soon as all 12 of you are present, you may begin your deliberations, not before all 12 are present. Next point I want to say, if you have not completed your deliberations, it is possible for you to deliberate this week on Thursday, December 23rd, if you wish. You can discuss and let me know, if pertinent. And then I want to give you a reminder that our chief judge has asked us to remind all people in the courthouse that masks are required to be worn at all times, unless they're briefly off for eating and drinking. So a reminder to wear masks at all times other than that. With that, I just do want to have you bear in mind my instructions, of course. I know that you are, but I just find it important to repeat. When you're not together deliberating, the 12 of you, no discussions with each other or anyone else regarding the case. Obviously no communications regarding the case, no consuming of any information regarding the case. So we appreciate your diligence and wait to hear from you tomorrow. Have a good night. Thank you.
(Jury not present)
JUDGE NATHAN: I want to know if the transcripts have been reviewed for the government.
MS. COMEY: They have, your Honor.
JUDGE NATHAN: So they are ready to go?
MS. COMEY: They are, your Honor.
JUDGE NATHAN: It was frustrating to have to have the jury wait for three hours to get what they requested.
MS. COMEY: Yes, your Honor. And we apologize for that.
JUDGE NATHAN: Defense agrees that they are now ready to go?
MR. EVERDELL: Yes, your Honor. We've conferred on every witness at this point.
JUDGE NATHAN: Okay. Second thing. I'm inclined to have Ms. Williams just call our alternates tonight to say deliberations are ongoing. All the rules continue to apply. She'll communicate with any further instructions.
MS. COMEY: Yes, your Honor.
MS. STERNHEIM: No problem. Thank you.
JUDGE NATHAN: Okay. We will do that. Anything else to take up?
MS. COMEY: No. Thank you, your Honor.
MS. STERNHEIM: No, thank you.
JUDGE NATHAN: Okay. All right. See you in the morning. Have a good night. We're adjourned.
(Adjourned to December 22, 2021 at 9:00 a.m.)