Matt — Admissibility Hearing and Direct
395 lines(Witness excused)
JUDGE NATHAN: Members of the jury, we will take our mid-afternoon break. Your snacks are here. We will break for about 15 minutes. Thank you.
(Jurors not present)
JUDGE NATHAN: You may be seated. Matters to take up before the break?
MS. STERNHEIM: I have a matter, Judge. I believe the next witness is Matt, whose issue was teed up yesterday. In advance of his testimony, just to make sure that it is compliant with the Federal Rules of Evidence, I would request that the government give a proffer of what he is going to say, as there are things in his 3500 material that did not come out on direct examination, and it would be improper for him to be able to testify as to things that are not prior consistent statements.
JUDGE NATHAN: There are things in his 3500 material that the previous witness said to him --
MS. STERNHEIM: Yes.
JUDGE NATHAN: -- that were not asked about of the witness.
MS. STERNHEIM: Right.
JUDGE NATHAN: Okay. Can you confer?
JUDGE NATHAN: During the break?
MS. STERNHEIM: Of course.
JUDGE NATHAN: Great. I appreciate you raising it, and let me know if there's disagreement. Thank you.
MS. STERNHEIM: Will do.
JUDGE NATHAN: We'll break for ten.
(Recess)
(Jurors not present)
JUDGE NATHAN: Matters to take up?
MS. STERNHEIM: Just very briefly, Judge. I did have an opportunity to confer with Ms. Moe. I just want to state for the record, with regard to the introduction of prior consistent statements, it is my understanding that there needs to be a similar exactitude as one would have with prior inconsistent statements, and I understand that the government is offering their next witness, Matt, to establish the fact that there was some colloquy discussion between Matt and Jane at an earlier time before this. I have no problem with that. The issue is that, at least in the 3500 material, the statements that Matt made are not -- they don't dovetail entirely with what went on on the direct examination. One example would be, his 3500 material is that she said that Ms. Maxwell brought girls. There was no testimony to that. There was testimony that there were women, but not that she brought them. There was testimony of her presence, but not necessarily that she told the group that everything would be okay. That's the kind of statements that are in the 3500 material. And I have addressed this with Ms. Moe. We're not entirely sure how it will come out, but it isn't a prior consistent statement. There is a prior conversation or discussion, but the statements themselves are not consistent.
JUDGE NATHAN: Ms. Moe.
MS. MOE: Your Honor, I believe the Court's ruling on this is that we would evaluate the statements as they come out through the witness. And as a preview, after conferring with Ms. Sternheim on this issue, we did confer with Matt and asked him about what he recalls, specifically about the woman he recalls Jane telling him. Again, it's always difficult to predict the precise testimony of a lay witness, but my general expectation is that he would explain that in conversations with Jane, she explained that there was a woman at the house who made her feel comfortable; that sometimes there was that woman at the house, sometimes there were girls; and so that made her feel comfortable in the house. I don't expect that the testimony would go beyond that, but again, we're talking about a number of conversations during this time period. That's my current expectation. But I think with respect to I think some of the granular issues, the difference between woman and girls, I think, especially in this context is not so different that it would not be a prior consistent statement. And beyond that, your Honor, we think this tracks the rule.
MS. STERNHEIM: Judge, I disagree. The distinction between a girl and a woman is precisely what this case is about, and she was very clear that she felt like she was the only one. The other people were women.
JUDGE NATHAN: She said she didn't know what their ages were.
MS. STERNHEIM: She didn't know their ages, but she did not refer to them as girls.
JUDGE NATHAN: But wasn't the recent testimony, I think it was on cross, which was: Were there underage girls. And she said, "I wouldn't know the ages."
MS. STERNHEIM: That's fine, but to call them girls connotes that they are minors, and that parlays right into the government's theory of the case, and they're bringing it out through a witness whose sole purpose is substantiated prior consistent statement, and that is not consistent with the testimony that we've heard. If he wants to say there were prior women, I can't make objection to that, but I do object to the term girls, and I do object to other aspects of his 3500 material insofar as there was no testimony, and this witness should not be used to supplant what the primary witness did not testify about.
JUDGE NATHAN: I agree with you on that distinction. This witness can't testify as a prior consistent statement that Jane told him that there were -- I mean, there's ambiguity in the term, but I think since the witness couldn't testify if they were underage or not, I can't allow the witness to make that as an implication since that implication wouldn't be consistent with the testimony.
MS. MOE: Yes, your Honor. I think on this point, to be clear, the government doesn't intend to argue in closing that the jury must infer from the evidence that there were underage girls in the room because of Matt's testimony. I think it is, unfortunately, common that often women above the age of 18 are referred to as girls. That's how he remembers it. I would be happy to lead him through that testimony, if the Court would prefer, and use the term females. It's not our intention to elicit the testimony to suggest anything in particular about the ages of those folks, but that's how he remembers it, and that's the word he uses.
JUDGE NATHAN: Why don't you -- I'll let you lead, but why don't you just say other people, or something like that.
MS. MOE: If I ask him about that, I do expect he would say, yes, other girls. And so I think unless it's a leading question, I just want to front that in order to avoid creating an issue there.
JUDGE NATHAN: Yes. Well, lead, and that way I don't have to strike the testimony as not a prior consistent statement.
MS. MOE: Yes, your Honor. If the Court authorizes us to lead, I think we can navigate through this area.
JUDGE NATHAN: Ms. Sternheim, okay if she leads through this portion?
MS. STERNHEIM: I have no problem with that, Judge, but if the witness on his own sua sponte says girls, I will be objecting to that. I cannot rely on what they are going to do or not do in closing.
JUDGE NATHAN: I agree with that. That's why I said --
MS. STERNHEIM: That's fine.
JUDGE NATHAN: -- I will let Ms. Moe lead so I don't have to strike that testimony. I think we are in agreement that if he were to testify that she told her that there were girls, the implication would be underage; that implication wouldn't be a prior consistent statement, and so I wouldn't allow that implication to stay with the jury.
MS. STERNHEIM: I understand, and I thank you for that. But the other part would be there was no testimony on direct that Ms. Maxwell brought women. There were women there but not that she brought them, and I think that Ms. Menninger cleared that up on cross-examination as well.
JUDGE NATHAN: Okay.
MS. MOE: Your Honor, particularly, if I'm permitted to ask leading questions, I wouldn't expect to ask that particular question.
JUDGE NATHAN: Okay. You won't ask it, it sounds like.
MS. STERNHEIM: Thank you Judge.
JUDGE NATHAN: Okay. Thank you. Anything else?
MS. MOE: Your Honor, very briefly, I just wanted to clarify because I believe in briefing the subject of prior consistent statements, defense counsel had raised the prospect of recall of the witness. So I just wanted to make sure in terms of our contacts with Jane, we had clarity on that status.
JUDGE NATHAN: Yes. And I didn't hear it from anyone on the 615 issue on the timing that I said, so I assumed you worked that out, correct?
MR. ROHRBACH: Yes, your Honor. Our understanding is that none of the witnesses who are testifying as victims are intending to observe any of the trial until at least both sides have rested, which we've conveyed to the defense, and we understand there would be no objection to that.
JUDGE NATHAN: So then the open question is might there be recall that would prohibit the government from conferring with a witness who's completed their testimony?
MS. MOE: Yes, your Honor. We just wanted to navigate that, otherwise I think we would make arrangements for Jane to travel home to her family today. And so if we wanted to make those arrangements, we will need to be in touch with her to make those arrangements, otherwise not planning to have substantive communications, but I wanted to be very transparent and candid about those contacts and just the state-of-play on this issue.
MS. MENNINGER: Your Honor, my recollection is that there was a second witness who was going to be offering prior consistent statements for Jane.
MS. MOE: That's correct, your Honor. I think our preference would be for Jane to be permitted to leave the district, but if we can be in touch with her about the possibility of a need for recall after today, if there are additional prior consistent statements, we can navigate it that way. Otherwise, Jane would have to remain in the district for I think potentially a long time.
MS. MENNINGER: I have no objection to that, your Honor. I do have one clarifying question, which is, while not observing the trial in the courtroom, there is certainly substantial coverage of the trial including relaying witnesses' testimony. So I don't know whether that has been clarified with the witness that not just sitting in the overflow room, but we're not reading media about it either.
JUDGE NATHAN: I'm sure you all discussed this when I raised the 615 issue weeks ago, right? Maybe it surprised you there's media coverage. Why don't you talk -- I am going to bring in the jury, so you'll talk about it and let me know if you disagree.
JUDGE NATHAN: Okay. Bring in the jury. I'm sorry. Two administrative matters before we bring in the jury. I admitted J-8 and 9.
MS. MENNINGER: Yes, your Honor.
JUDGE NATHAN: And to be clear, that needs to be admitted under seal because it has specific identifying information of a witness whom I've permitted to testify under a pseudonym. Tell me if that's true for J-15 as well.
MS. MENNINGER: Your Honor, I believe that was a pleading that was filed under a pseudonym. I can check it certainly to be sure and confer with the government. We'll check it one more time, your Honor --
JUDGE NATHAN: Okay.
MS. MENNINGER: -- and confer. And then as for 8 and 9, we were going to put 8 and 9 on the sticker, make copies to replace in the binder.
JUDGE NATHAN: Okay. So confer and let me know if J-15 needs to be admitted under seal.
MS. MOE: Thank you, your Honor. We'll review the transcript from today and confer about exhibits and their status under seal.
JUDGE NATHAN: And then, to be clear, the next witness I'm permitting to testify under a pseudonym to protect the identity of the prior witness.
JUDGE NATHAN: And so I guess consistent with that, sketch artists should not draw an exact likeness of the next witness who will also be testifying under a pseudonym.
JUDGE NATHAN: Now we can bring in the jury.
(Jury present)
JUDGE NATHAN: Please take your seats as you come in. Everyone may be seated. Thank you, members of the jury. Ms. Moe the government may call its next witness.
JUDGE NATHAN: The witness identified as Matt may come forward. MATT, called as a witness by the Government, having been duly sworn, testified as follows:
JUDGE NATHAN: Ms. Moe, you may begin your direct examination of the witness testifying under the pseudonym Matt.
JUDGE NATHAN: It is.
DIRECT EXAMINATION BY MS. MOE:
MS. MOE: Are you using a pseudonym in order to protect the privacy of the person you are going to be testifying about today?
MS. MOE: I'd like you to just take a look at the witness stand. There's a folder in front of you. Would you mind just taking a look at that document. And that is what's marked for identification as Government Exhibit 17?
MS. STERNHEIM: No objection.
JUDGE NATHAN: Without objection, GX-12 is admitted under seal to protect the identity of the witness who I permitted to testify under a pseudonym.
MS. MOE: Apologies, your Honor. My colleagues just alerted me it's Government Exhibit 17, not 12. I misspoke.
JUDGE NATHAN: Or I did. GX-17. Thank you.
JUDGE NATHAN: Without objection, Ms. Sternheim.
MS. STERNHEIM: No objection, your Honor.
JUDGE NATHAN: Jurors may pick up your binders and look at Exhibit GX-17, please. Large binder, GX-17. Thank you.
BY MS. MOE:
MS. MOE: Now that the jurors are there, just to be clear, on Government Exhibit 17, is that your true name?
JUDGE NATHAN: Ms. Moe, can you come closer to the mic?
MS. MOE: All right. If the jurors could keep their binders for a moment up, we'll turn to another exhibit in a moment. Let me pause here and just ask you, Matt, how far did you go in school?
MS. MOE: And if you could please take a look at the binder in front of you, and take a look at Government Exhibit 12, which is in evidence and under seal. Do you have Government Exhibit 12 in that folder?
MS. MOE: I would ask that the jurors please turn to Government Exhibits 12 in their binder, which is in evidence and under seal.
JUDGE NATHAN: Without objection, Ms. Sternheim?
MS. STERNHEIM: No objection.
JUDGE NATHAN: You may look at GX-12, please.
MS. MOE: Focusing on Government Exhibit 12, I want to direct your attention to the top left corner of that document. Without saying her name, do you recognize the person listed on that birth certificate?
JUDGE NATHAN: Okay. Put the binders away.
MS. MOE: Now that we know who we're talking about, I want to ask you some questions about Jane. How do you know Jane?
(Continued on next page)
BY MS. MOE:
MS. MOE: During the years that you lived with Jane, did you get to know some of her family members?
MS. MOE: Were there times when Jane would talk to you about what her home life was like when she was growing up?
MS. MOE: Let me just take a step back and ask you some questions about how that topic came up. In general, how would the topic of Jane's home life come up during the course of your relationship?
MATT: There's different aspects of the home life, but just most likely, I would say, getting to know her family and getting to know the relationships between her and her siblings and her mother and the struggles that she went through.
MS. MOE: During the years that you were dating Jane, did she tell you about what her home life was like when she was a kid?
MS. STERNHEIM: Objection.
JUDGE NATHAN: Do you want a more specific question?
MS. STERNHEIM: Well, that is hearsay. That is not the basis of this witness's testimony.
MS. MOE: Your Honor, it's both the foundation for a prior consistent statement and a prior consistent statement itself.
JUDGE NATHAN: In light of cross, I think that's right, but I'll hear you if --
MS. STERNHEIM: If I may be heard briefly.
JUDGE NATHAN: Yes.
(Continued on next page)
(At sidebar)
JUDGE NATHAN: We discussed this yesterday, didn't we?
MS. STERNHEIM: Judge, the witness is going to talk about home life. It's not the subject matter of his testimony, it's whether she revealed to him at a time earlier than meeting with the government allegations concerning Ms. Maxwell.
JUDGE NATHAN: Well, but Ms. Menninger crossed on the veracity of her poverty and financial situation growing up and the relationship with her mother, and I assume that's where we're going.
MS. STERNHEIM: I think the government -- I don't think that's the issue here. The issue is whether she stated at sometime earlier that she was abused.
JUDGE NATHAN: Well, that's true. But you've put in issue her credibility about everything. Why did you cross her on whether she grew up poor?
MS. STERNHEIM: Because they raised it. They raised the fact that she lived in a pool house. The witness testified under oath that she lost her home after her father died. I don't think that's the issue --
JUDGE NATHAN: So you've attacked her credibility on that. You said her credibility on everything is an issue. You specifically attacked her credibility on that. Why can't it come in as a prior consistent -- you're saying this witness can only testify about --
MS. STERNHEIM: Judge, if that was the case, then anytime a witness is on the stand who spoke about their home life, you could bring a witness in? I've never seen that before. I understand the subject matter with regard to the allegations in this case.
JUDGE NATHAN: Right. For sure.
MS. STERNHEIM: But prior consistent, my father died, I don't think that we're contesting that her father died.
JUDGE NATHAN: Right. But you contested whether she grew up poor, whether she had a relationship with her mother that wouldn't allow her to -- you put all of those things at issue; made a strong point that every inconsistency is an issue because her credibility is central. Good for the goose, good for the gander.
MS. STERNHEIM: No, that would mean they could pull anyone she was involved with to support the fact that she had a difficult --
JUDGE NATHAN: What is the nature of your objection? So that this witness -- I mean, either it's a prior consistent statement or it's not. I don't understand -- so under the Rule 801(b)(3), right, that's the evidentiary objection. You attacked her credibility on what she testified about her home life. What is the evidentiary objection? Relevance? 403? Tell me.
MS. STERNHEIM: Judge, it seems like we're going to have a witness here who's just going to testify about everything he knew about her because he was in a relationship with her and --
JUDGE NATHAN: No, I won't allow everything that he knew about her. I will allow issues that you specifically spent time on cross-examination.
MS. STERNHEIM: Okay.
JUDGE NATHAN: Attacking her credibility.
(Continued on next page)
(In open court)
JUDGE NATHAN: Ms. Moe, I'll ask you to rephrase, to narrow the question.
BY MS. MOE:
MS. MOE: Matt, were there times when Jane would talk to you about her family's financial circumstances when she was growing up?
MATT: She told me that when her father got sick, that her mother spent basically all of the money that they had for his treatments, and obviously hoping that he would survive. And he didn't. And basically she -- that she was the one who left them broke.
MS. MOE: And did Jane tell you what her family's financial circumstances were like after her father passed away?
MATT: That they basically had no money. The mother was working a small job. And I think she said at one point the three of the -- that her and her two brothers were sleeping in the same bed at one point because they were living in such a small place, and the three of them had to sleep in the same bed.
MS. MOE: Did there come a time when Jane told you how she was able to pay for things when she was a kid?
MATT: It's probably 2006, 2007, when we -- when we first started dating, just getting to know each other.
MS. MOE: What did Jane tell you during that conversation about how she was able to pay for things when she was a kid?
MATT: She said her mom had a job that paid basically nothing; and that she had it -- it was like a godfather, an uncle, a family friend type person that basically helped her mom pay the bills.
MS. MOE: Is this something Jane discussed with you once or more than once during the course of your relationship?
MS. MOE: During the conversations with Jane about this godfather figure, did you come to learn the name of the uncle figure or godfather figure?
MS. MOE: In general, when Jane would talk with you about her experiences with Jeffrey Epstein, how would that topic come up?
MATT: First it was purely that he was -- you know, that he was a godfather and, you know, he was looking out for her family. And then the topic came up when she came to me when -- I think it was in two thousand -- like 2009, she was contacted, I think, by the FBI to see if she would tell her story, if she had a story. And she came to me and she said, I need to tell you something. And I said, Yeah. And she said, You know the godfather that I told you about, the person that was helping my family? And I said, Yes, I do. And she said, I need you to know that this is who it is. And it was public news. And that's when I said, That guy is your godfather? That's the guy that was helping you pay your bills and your family's bills? And she said, Yes.
JUDGE NATHAN: Just a minute. Just a minute.
JUDGE NATHAN: More specific question.
MS. MOE: Your Honor, I can lay some additional foundation for that and return to it later, if that's acceptable.
JUDGE NATHAN: Okay. And then you'll ask it as a more specific question.
JUDGE NATHAN: Thank you.
BY MS. MOE:
MS. MOE: Did there ever come a time when Jane explained to you why it was that she received financial help from Jeffrey Epstein?
MATT: When -- when the -- when she told me who it was, when she told me the name of the person and --
MS. MOE: What did Jane tell you about why it was that she received this money from Jeffrey Epstein?
MATT: Well, once -- once I learned who it was, I asked her if she was one of the girls, and she said that she was.
MS. STERNHEIM: Objection.
JUDGE NATHAN: I'll sustain the objection. The jury will disregard the last statement of the witness. And you'll ask a specific question, Ms. Moe.
BY MS. MOE:
MS. MOE: Did Jane tell you what happened between her and Jeffrey Epstein during the years that she knew him?
MATT: Well, I was the one that asked her, based on after finding out who it was, I asked her if she was doing that for the money.
JUDGE NATHAN: Just a minute. Just a minute. Sustained.
MS. MOE: In your conversations with Jane about Jeffrey Epstein, did there come a time when she told you that she had to do things she didn't want to do?
MS. MOE: Did she ever use any particular words to describe the things that she had to do with Jeffrey Epstein?
MS. STERNHEIM: Objection. Leading.
JUDGE NATHAN: Overruled. I'll allow it. You may answer.
MATT: I think it was only because of the fact that it was public knowledge, and that was as far as she would ever let me go into the -- into the -- what happened, what she did.
MS. STERNHEIM: Objection.
JUDGE NATHAN: Overruled.
MS. MOE: And what did Jane tell you about how old she was when she had to do things with Jeffrey Epstein?
MS. MOE: In these conversations with Jane, did she ever tell you that someone else was present during a massage?
MS. MOE: In your conversations with Jane, did you ever have any conversations with her about a woman?
MS. MOE: In your conversations with Jane about Jeffrey Epstein, did she tell you that there was a woman present at his house?
MATT: I asked her because I couldn't understand why her mother would let her go with a man without anybody else present. And then she told me sometimes there were other girls present.
MS. STERNHEIM: Objection.
JUDGE NATHAN: Sustained. The jury will disregard the witness's last statement. Ms. Moe, you'll lead.
MS. MOE: In your conversations with Jane -- withdrawn. Approximately what year was it that Jane told you about this woman who made her feel comfortable?
MS. MOE: And in your conversations with Jane about her interactions with Jeffrey Epstein, did she tell you that this woman would tell her that it was okay?
MS. MOE: At the time when you were having these conversations with Jane about this woman, did she tell you what the woman's name was?
MS. MOE: In general, when Jane would tell you about what had happened with her and Jeffrey Epstein, what was her demeanor like?
MS. STERNHEIM: Objection.
JUDGE NATHAN: Grounds.
MS. STERNHEIM: Relevance.
JUDGE NATHAN: Overruled. Go ahead. You may answer.
MS. MOE: I'm happy to repeat it. Matt, when you would have these conversations with Jane about her interactions with Jeffrey Epstein, what was her demeanor like when she would tell you about that?
MS. MOE: Without telling me what she said, did you ask her about the details about what had happened with her and Jeffrey Epstein?
MS. MOE: I believe you testified that you met Jane's family members when you were dating; is that right?
MS. MOE: Based on your observations during the years that you dated Jane, what was her relationship like with her mother?
MS. STERNHEIM: Objection. Sidebar please.
JUDGE NATHAN: One word, grounds.
MS. STERNHEIM: First time we are hearing this.
JUDGE NATHAN: Okay.
(At sidebar)
JUDGE NATHAN: What do you expect the witness to say?
MS. MOE: That he recalls being present when Jane and her mother were in a room. He recalls Jane saying to her mother, How could you not know the money wasn't for free? How could you not know?
JUDGE NATHAN: Is that in 3500 material?
MS. STERNHEIM: There's been no testimony by Jane about confrontation with her mother at this time. She testified that her mother was irate regarding a guidance counsellor, but she didn't go toe-to-toe with her mother about Jeffrey Epstein.
JUDGE NATHAN: So it's in the 3500 material; it's not the first time you're hearing it.
MS. STERNHEIM: I don't recall if it's this witness or her brother.
JUDGE NATHAN: Okay.
MS. STERNHEIM: But even if it is in the 3500 material, if it is not on the direct of Jane, why can it be offered as a prior consistent statement when it never was offered at all?
MS. MOE: This is a statement from Jane to her mother essentially acknowledging she was abused, expressing frustration about that. That is entirely consistent with her testimony that she was, in fact, abused.
MS. STERNHEIM: But not with regard to her mother having a confrontation.
JUDGE NATHAN: Well, it's a prior consistent statement that he heard related to the abuse which you've repeatedly called into question in your opening and your direct and in your cross-examination.
MS. STERNHEIM: Judge, I understand that. But we're talking about prior consistent statements.
JUDGE NATHAN: Right. The prior consistent statement is that she was abused by Jeffrey Epstein.
MS. STERNHEIM: But they are bringing out a conversation. If she wants to say, Did you know or learn that she was abused? Yes. But a conversation that she had with her mother is hearsay.
MS. MOE: Your Honor, it's not hearsay because it's a prior consistent statement of Jane about her experiencing sexual abuse.
JUDGE NATHAN: Yes. Overruled.
(Continued on next page)
(In open court)
JUDGE NATHAN: Go ahead.
BY MS. MOE:
MATT: She told her mother that the money was not free, and confronted her mother about it. And her mother said, crying --
JUDGE NATHAN: Just a minute.
MS. MOE: Just focusing on just what Jane said and not what her mother said, can you explain to the jury what did Jane say to her mother?
MATT: Jane told her mother that -- that she -- that the money was not free, and that there's no way that she couldn't have known that it wasn't free.
MS. MOE: Did there come a time when you learned that a woman named Ghislaine Maxwell was arrested?
MATT: I just said, Is this the woman that you were referring to when you told me? And she said yes.
MS. MOE: Just to be clear, during your relationship with Jane, did she tell you that there was a woman at Jeffrey Epstein's house who made her feel comfortable?
MS. STERNHEIM: Asked and answered.
JUDGE NATHAN: Sustained.
JUDGE NATHAN: Okay.
(Counsel conferred)
JUDGE NATHAN: All right. Thank you. Ms. Sternheim.
MS. STERNHEIM: No, thank you.
JUDGE NATHAN: All right. No cross. Witness Matt, you may step down. You are excused.
(Witness excused)
JUDGE NATHAN: Government may call its next witness.
MR. ROHRBACH: The government calls Daniel Besselsen.
JUDGE NATHAN: You may come forward. Mr. Besselsen, come forward. Somebody is getting him, Mr. Rohrbach?
MR. ROHRBACH: Yes, your Honor. We apologize for the delay.
JUDGE NATHAN: You can take a standing stretching break, if you'd like. You may be seated. DANIEL ALAN BESSELSEN, called as a witness by the Government, having been duly sworn, testified as follows:
JUDGE NATHAN: Go ahead.
MR. ROHRBACH: Thank you, your Honor.