Rule 16 Impeachment-Evidence Hearing
80 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 1, 2021 8:55 a.m. Before: HON. ALISON J. NATHAN, District Judge APPEARANCES DAMIAN WILLIAMS United States Attorney for the Southern District of New York BY: MAURENE COMEY ALISON MOE LARA POMERANTZ ANDREW ROHRBACH Assistant United States Attorneys HADDON MORGAN AND FOREMAN Attorneys for Defendant BY: JEFFREY S. PAGLIUCA CHRISTIAN R. EVERDELL LAURA A. MENNINGER -and- BOBBI C. STERNHEIM -and- RENATO STABILE Also Present: Amanda Young, FBI Paul Byrne, NYPD Sunny Drescher, Paralegal, U.S. Attorney's Office Ann Lundberg, Paralegal, Haddon Morgan and Foreman
(Trial resumed; jury not present)
JUDGE NATHAN: All right. Matters to take up, counsel, includes the Rule 16/608, as I see it, issue. And then I want to see where you are in terms of working out anticipated personal identifying information of witnesses who I've given permission to testify under pseudonyms to protect their privacy. So let's begin. Ms. Menninger, did you want to begin with the Rule 16 issue?
MS. MENNINGER: I think Mr. Everdell was going to handle that piece.
JUDGE NATHAN: Okay. Ms. Comey, are you taking this?
MR. ROHRBACH: I'm taking this one, your Honor.
JUDGE NATHAN: You all swapped off. So I think the defense is clearly right that if we are talking by impeachment by contradiction, that is to say, impeachment, direct contradiction of something testified to on the stand, it's not required to be disclosed as case-in-chief material under Rule 16; and depending on what it is, it's likely not 608 because it's impeachment by contradiction, not impeachment to show -- extrinsic evidence to show a character for dishonesty and the like. So the question is whether it's impeachment or not. And I still don't fully understand the photograph of the street that the witness read the line from saying, That's the address where we lived, how that's impeachment. That remains an open question in my mind. But otherwise, Mr. Rohrbach, do you disagree with anything I've just said as to the state of the law?
MR. ROHRBACH: No, I think that that's a correct statement of the law, your Honor. The issue with the photograph is it wasn't established that that satisfied any of the theories of impeachment; and so if the defense is offering it for some other purpose, that purpose would be part of the defense's case-in-chief and, therefore, subject to Rule 16 or an attack on the witness's character for truthfulness, which would be barred by 608.
JUDGE NATHAN: Right. But the, I'll charitably call it, theory offered yesterday that anything that's not part of the case-in-chief somehow then falls under 608 as extrinsic, you've walked away from that.
MR. ROHRBACH: Yes -- the theory really is that it has to satisfy some proper basis of impeachment for extrinsic evidence. So it's true that there are more than two paths, yes, your Honor.
JUDGE NATHAN: All right. So just to get to the photograph, as I see it, the witness's testimony -- and tell me -- I don't know if this is Mr. Everdell or Ms. Menninger.
MR. EVERDELL: It's me, your Honor.
JUDGE NATHAN: Okay. The witness testified, I believe, that at the time that she met Epstein and Ms. Maxwell, that she was living with her family in a pool house and she described that as homeless; correct?
MR. EVERDELL: And she said that she lived in one place, I believe, continuously for her childhood. The testimony, what you just said, is accurate.
JUDGE NATHAN: Right. So then you've got the FBI 302 in which she said that she lived at a certain address at the time that she met them; correct?
MR. EVERDELL: That's right.
JUDGE NATHAN: I think there's a question of whether that statement comes in as a prior inconsistent statement. I don't know that that was moved. But she said, in any event, she looked at it and it was a typo; so she addressed the apparent discrepancy, as I heard it. I'm not sure if you wanted to move the statement in as a prior inconsistent statement and let the jury resolve that dispute. But we moved on then to a current photograph of a street that had writing on it, an address and a date, and she said that's the street I lived in -- that's the street I lived on, which it just -- I think it suffered from a lot of problems, but certainly wasn't directly impeaching of her testimony.
MR. EVERDELL: Your Honor, I'm sorry. I just -- see if we could back up. Have we moved beyond the Rule 16 issue at this point and we're just talking about --
JUDGE NATHAN: Well, if it's impeaching, then there's not a Rule 16 issue. As I sit here, I don't know -- I don't see that it's impeaching; so that if it's not impeaching, I'm not sure what you're doing with it and it may be a Rule 16 issue.
MR. EVERDELL: If I can address that, your Honor, because I think we disagree with what the state of the law is. I think there's some disagreement on the courts about whether or not if the defense is going to introduce something or talk about something on cross-examination, whether that is considered a Rule 16 document. So what I understand the case law to be, your Honor, is that they are trying to deal with the issue of where the defense is trying to introduce affirmative proof in its own case through the government's own witnesses.
JUDGE NATHAN: For sure. Which is, let's face it, usually what happens. There's often not a defense case. Both cross-examination and impeachment testimony, as well as affirmative evidence, comes in through cross-examination. So I think the cases that say there's not a clear temporal time split, that is to say, you don't have to put on your first witness, is not the question; it's a functional question, are you putting on evidence in your case-in-chief as opposed to impeachment testimony.
MR. EVERDELL: I think that's right, your Honor. Let's give an example, because I think it's helpful to use examples. I'll use one from this very case. It's my understanding that the government wants to introduce certain FedEx records through a FedEx document custodian. The defense also would like to introduce other FedEx records, coincidentally, through the same document custodian. So if that happens, you'd have a witness called by the government, the defense would want to introduce affirmative proof in its case through that same witness. That would be defense case-in-chief material which, by the way, we disclosed in our Rule 16 letter to the government. That's an example, I think, where the courts are talking about where you disclose things -- where you have a witness where you are trying to put on affirmative proof in the defense case through the government's witness. That is an example where we don't dispute. I'll give another example. This is a hypothetical one. Larry Visoski just testified. He was shown a number of pictures of Little St. James Island where there were structures, houses on the island. And he testified to those, and those were introduced. If we hypothetically had photos of that same island before those houses were built, we don't, but if we did and we wanted to introduce those through Larry Visoski, again, that would be affirmative defense in the defense case-in-chief introduced through the government's witness. That would be Rule 16 which we'd have to disclose ahead of time.
JUDGE NATHAN: Right.
MR. EVERDELL: Now, what we are talking about here is what Witness 1, what Jane, remembers about the childhood, about these events; it's about her recollection of everything, and that is critical to the case. So misremembering details, misremembering where she lived, not being able to recognize a house, that all goes to her credibility as a witness, her believability, any contradiction. This is central to the case. Her memory of every single detail of her childhood is central to the case, and that is not case-in-chief material. That is, if she testifies to something and we think we have something that contradicts what she just said, like a photograph of her -- of a place where she lived as a child, but she didn't seem to remember, that's impeachment material. And we don't know if we're going to use that until she says on the stand what she says on the stand. We have it ready to go in case she says that, and she did in this case, and so that's why we were able to use it or try to use it, to show that she doesn't have an accurate recollection. That is pure impeachment material.
JUDGE NATHAN: Up to the point where you said it contradicted what she said on the stand, you and I were in vigorous agreement.
MR. EVERDELL: Okay.
JUDGE NATHAN: Okay.
MR. EVERDELL: All right. Well, what I would say is that we can't -- no, this is not -- it's not as if we were going to introduce the photograph of her house in our case-in-chief. We are doing this -- we had it ready to be able to use it in case she said something that we believe was contradictory and contradicted by the photograph. So that's why we did not disclose it ahead of time, because we believed it to be impeachment material. By the way, Judge, I'll just note for the record that when we sent our Rule 16 discovery several weeks ago to the government, we included a cover letter, which I'm happy to share with the Court --
JUDGE NATHAN: I can imagine it reserved all your rights. And you can keep talking, but we remain in agreement.
MR. EVERDELL: Okay. And it cited all the cases that we cited, and it said we do not consider impeachment material or refreshing material case-in-chief material.
JUDGE NATHAN: It is true. I think, Mr. Rohrbach agrees. The only question in any specific instance is is it impeaching, and is it a prior inconsistent statement. We have to deal with the rules around a prior inconsistent statement. It wasn't like you had deposition testimony. You had an FBI agent's write-up of notes which the witness was confronted with and said it was a mistake. Again, that wasn't moved in, but we can deal with that as it comes. There could be -- not here, but there could be 608 issues if you're trying to use extrinsic evidence. If what we have is impeaching by contradiction, impeachment of what the witness testified to on the stand, then it's not going to be a 608 issue.
MR. EVERDELL: If we're impeaching the witness, yes, that's right. And I just want to address the issue of impeaching with extrinsic evidence, which I know the government has raised. That rule is -- and the cases they cite --
JUDGE NATHAN: I know you cited Rule 613. I hadn't understood their argument to be about 613.
MR. EVERDELL: They raised in their papers the notion that you can't impeach -- or you can't use extrinsic evidence to impeach. But the rule there and the cases they've cited stand for the unremarkable proposition that you can't impeach -- or you can't use extrinsic evidence on a collateral matter.
JUDGE NATHAN: Correct.
MR. EVERDELL: Her memory about anything to do with this time period is not a collateral matter; she is a central witness to this case.
JUDGE NATHAN: Well, again, I don't adopt that broad statement. But to the extent you are attempting to impeach -- so you have something that contradicts what she testified to on the stand, then it's not a Rule 16 issue, I doubt it's a 613 -- a 608 issue. We may have to deal with 613 questions and what it is that we're looking at.
MR. EVERDELL: Again, it's also not a 608 issue, I'd say, your Honor, because that rule deals with conduct.
JUDGE NATHAN: I said it's not a 608 issue.
MR. EVERDELL: Yes. Okay. I agree with you.
MR. ROHRBACH: I'm a little confused, your Honor. I think we're agreeing that, as your Honor said, if it's offered for impeachment with a proper basis for impeachment and it's not about a collateral matter, then they didn't have to disclose it in Rule 16. If it's to advance the defense case, whether in the government's case or in the defense case, then it should have been disclosed in Rule 16. There are things that the defense might expect to offer for impeachment, but that might be impeachment about a collateral matter or might be impeachment, but is not, in fact, based on a contradiction or some other proper theory of impeachment, in which case it is not an admissible exhibit. The government also doesn't agree with the defense's broad statement that anything that goes to this witness's memory is a noncollateral matter. It's hard for us to know now exactly what they plan to do. The government thinks we should take that as it comes. But I think there's sort of broad agreement about the general principles here, your Honor.
MR. EVERDELL: If there's broad agreement, your Honor, then there shouldn't be objections. If we have an issue with the witness's memory that we believe we have a document or some other information that contradicts what she's saying, then we are allowed to cross on it.
JUDGE NATHAN: Okay. We'll take it as it comes, but we agree on the principles. I think the only question is -- I sustained the objection to admission of the photograph, because it's not clear to me that it's impeaching. As I said, if it's not impeaching, then it might be a Rule 16 issue; I wasn't entirely sure what you were trying to do with it. You're welcome to -- if there's some basis to show a photograph, to impeach something she suggested in her testimony, then you can do that.
MR. EVERDELL: Yes.
JUDGE NATHAN: Okay.
MR. EVERDELL: Understood.
MR. ROHRBACH: The government agrees, your Honor. The issue with that particular photograph, setting aside the fact that the witness couldn't recognize it, and there are other questions about admissibility than just whether it's relevant or impeaching, is that it wasn't a direct contradiction of anything the witness said on the stand; so it wasn't a proper basis for impeachment. And if it advanced the defense case in some other way, it would have been a Rule 16 --
JUDGE NATHAN: What is the government's understanding of when the witness lived at the address that's referenced in the 302?
MR. ROHRBACH: If I may ask Ms. Moe, who's taking the rest to answer that question.
JUDGE NATHAN: Sure.
MS. MOE: Yes, your Honor. I don't recall the particular date, but I think the witness was beginning to clarify on cross-examination yesterday that at some point while she was a teenager living in Palm Beach, she moved to the second address. I don't recall the specific date --
JUDGE NATHAN: And you say the second address, what do you mean?
JUDGE NATHAN: I guess what do you mean by the first address, do you mean the pool house?
MS. MOE: Yes, your Honor. I believe the witness would explain that at the time that all of this --
JUDGE NATHAN: Could you pull up the microphone.
JUDGE NATHAN: Even though we're three days in, I still can't hear you without the mic.
JUDGE NATHAN: That's okay.
MS. MOE: I believe the witness would explain that when all of this began when she was 14, she was living in a pool house because of her family's financial circumstances. But at some point during the years that followed, her family moved to a second house.
JUDGE NATHAN: And that's the address listed in the 302, as you understand it?
MS. MOE: I don't recall offhand whether that's the particular address. I'd want to review the 3500. But I believe the witness was clarifying that she lived at a second house.
JUDGE NATHAN: Okay. All right.
MR. EVERDELL: Your Honor, I'm sorry. I believe -- and I'm checking this right now, but I believe the address she put on her 1994 Interlochen application was the address we were showing her the photograph of. And she's saying she's in a pool house or homeless. So I think this is impeaching. I think this goes directly --
JUDGE NATHAN: Again, she said she lived -- they move in the application. All she said about the photograph was, That's the address that I lived in. And so we just don't have a -- she looked at your photograph, she looked at the address written on it; she said that's the address where I lived. That's not yet in contradiction to her statement, because there's a timeline issue. But you can try, again, to see if there's a basis for impeachment.
MR. EVERDELL: All right. I'll leave it to Ms. Menninger, who's going to be doing the cross.
JUDGE NATHAN: Okay. Any questions about that, Ms. Menninger?
MS. MENNINGER: No, your Honor. I think I can ask her questions today that explain when she lived where --
JUDGE NATHAN: Great.
MS. MENNINGER: -- what was on her applications. What she said in her 302, which was already discussed on the record, is that she lived in the same place from the time she met Epstein until she moved to New York. That was her statement. She continued on --
JUDGE NATHAN: You mean that's the statement recorded in the 302.
MS. MENNINGER: That is one of the statements recorded in the 302 verbatim.
JUDGE NATHAN: Right. Sorry, verbatim. She said it was a typo. It's a type-up of agents' notes, is it not?
MS. MENNINGER: It's a type-up of the agent's notes. We also have the agent's handwritten notes. The next sentence -- then I'll explain what I think we may get to. The next sentence, she says, That home was a three-bedroom home in a gated community called Bear Lake, something like that. Those were the two statements that were typed up in the agent's 302.
JUDGE NATHAN: Okay.
MS. MENNINGER: And in the handwritten notes. She's had a chance to explain it; in her mind, it's a typo. We have those agents on call to be witnesses, and they can talk about whether it was a typo or not a typo. I mean, I think that's the state of play in terms of contradicting a witness with a prior inconsistent statement.
JUDGE NATHAN: Okay. Anything else on that?
MR. ROHRBACH: Nothing from the government.
MR. EVERDELL: No, your Honor. Thank you.