Exhibits 52 and 606 Admissibility Hearing
47 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 2, 2021 8:45 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
(In open court; jury not present)
JUDGE NATHAN: Good morning. Matters to take up, counsel?
MR. ROHRBACH: Your Honor, from the government, we just wanted to make sure the Court and defense counsel saw our letter of last night about Government Exhibits 52 and 606.
JUDGE NATHAN: I did see it.
MR. PAGLIUCA: Yes, your Honor. I received it roughly 1:00 a.m., give or take, something like that.
JUDGE NATHAN: So you were just waking up.
MR. PAGLIUCA: I had never gone to sleep.
JUDGE NATHAN: I mean, I've had prior briefing. This is additional briefing. My view remains. We will see what comes in on the testimony, and then I'll make a ruling. I guess one question for defense is whether they do intend to -- and maybe you don't know yet, but to seek to voir dire before I rule on admission?
MR. PAGLIUCA: Yes, I think so, your Honor. Well, I'm assuming that we're changing the witness that we're trying to introduce this through, which will happen later today, is my understanding of the briefing. So I don't think it changes the landscape of needing to do some voir dire on the exhibit prior to the Court's ruling.
JUDGE NATHAN: Okay.
MR. PAGLIUCA: I guess just -- I think -- there's an additional issue that I think would relate to this issue. This witness is -- I'd say it's more of a 803(6) issue with this witness likely than a 901 issue, your Honor. And I think we're implicating 803(6) subsections (C), I think (D) and (E) likely with this particular witness.
JUDGE NATHAN: Okay. Just give me a minute. Understood.
MR. ROHRBACH: Your Honor, I would just point out that neither of these documents are being offered for the truth of the matter. The household manual is being offered as a set of instructions, it's a document of instructions which have no truth value themselves, and the contact book is not being offered to show that any of the entries are in fact the contact information of any of the people listed therein. It's being offered to show that the defendant was in possession of a book which contained -- which purported to contain this information. So, in either sense, 803(6) -- the government does not expect 803(6) to be implicated by the testimony when it offers the exhibits.
JUDGE NATHAN: Do you want to respond to that, Mr. Pagliuca?
MR. PAGLIUCA: I think then this implicates some relevance issues, your Honor.
JUDGE NATHAN: I'm sorry, it implicates?
MR. PAGLIUCA: Relevance issues. I mean, I dispute the characterization that the defendant is in possession of a book or even that particular book.
JUDGE NATHAN: That's the factual dispute that goes to authenticity, and then if it comes in, whether the jury believes the testimony regarding that.
MR. PAGLIUCA: Yes, but, you know, I think --
JUDGE NATHAN: I gather the point here is there's nothing from these exhibits that the government would argue at closing the jury should conclude factually based on the statements contained in either document.
MR. PAGLIUCA: See, I don't think that's true, your Honor, and I think that's my next point because I think it's a little fast and loose to say that it's not being offered for the truth. I mean, that's convenient to get around of the hearsay objection.
JUDGE NATHAN: Sometimes it works.
MR. PAGLIUCA: Right.
JUDGE NATHAN: Sometimes it doesn't.
MR. PAGLIUCA: But it is being offered for the truth in my view: The truth that these people's names are in there; the truth that these people had some sort of contact. This is all part and parcel of the government's theory that this list has something to do with, you know, underage females and their names are on the list, etc., etc. So, I don't think you can say this is being offered to show what, notice? It doesn't make any sense to me.
MR. ROHRBACH: Your Honor, I think it's helpful to -- I think Mr. Pagliuca is talking about the contact book and not the household manual.
JUDGE NATHAN: Would you pull up the microphone?
MR. ROHRBACH: I think Mr. Pagliuca is talking about the contact book and not the household manual, which are different documents, but specifically with regard to the contact book, the government expects the evidence will show either that it was the defendant's contact book, or through the witness we talk about in our letter, the defendant and Epstein's contact book, in which case would also be a statement of the defendant or her co-conspirator. Again, if this were offered for the truth, it could come out without the requirement apply 803(6).
JUDGE NATHAN: I was surprised that argument hadn't been made earlier. I think that was the first time the government articulated that, although may we haven't been focused on the hearsay objection that much, although it was raised. But I don't see why that's wrong. I mean, they have an alternate theory: Either it's not being offered for the truth or if it is being offered for the truth, the evidence they anticipate that will come in is that it is statements of the defendant or Mr. Epstein in furtherance of the conspiracy.
MR. PAGLIUCA: I don't know whether we're talking about Exhibit 52.
JUDGE NATHAN: 52.
MR. PAGLIUCA: Okay. I think we can address that differently. I don't see how one can say that a purported address book created sometime after the end of the alleged conspiracy is a statement in furtherance of the conspiracy. We don't know, frankly, who created the book.
JUDGE NATHAN: Right. That's an authentication point, not a hearsay point.
MR. PAGLIUCA: I understand, but I'm addressing the 801(b)(2)(E) issue as opposed to the 803(6) hearsay issue at this point. Anyway, I guess we'll see what the witness says, and then we can take it from there.
JUDGE NATHAN: Thank you. What else can I take up now?
MR. EVERDELL: Your Honor, I think this could be addressed later in the day if the Court prefers. There are two law enforcement witnesses who will be testifying after the first three witnesses, so it's possible we will get to them today. We've had a conferral with the government. There are a number of issues we have been able to agree on. I think there are a few that we don't. We can take that up now or we can do that later in the day.
MS. COMEY: Your Honor, I would propose taking it up at the lunch break. I don't think we'll get anywhere near these witnesses before lunch, and I think there's more conferral to be had.
JUDGE NATHAN: That's fine. We may have some time now, so I can step off and you can confer because we don't have all our jurors yet, although we're getting there. What else? Anything else I can take up, counsel? No?
MR. ROHRBACH: Nothing from the government, your Honor.
MR. PAGLIUCA: No, your Honor. Thank you.
JUDGE NATHAN: Thank you, I'll leave you to your conferral, and if it would be helpful if we don't have all our jurors and you have remaining issues, please let Ms. Williams know. Thank you.
(Recess)
(Jury present)
JUDGE NATHAN: Good morning, everyone. You may take your seats as you come in. Everyone may be seated. Good morning members of the jury. Thank you again for your punctuality. We can get started right away. Ms. Comey, the government can call its next witness
MR. ROHRBACH: The government calls Paul Kane.
JUDGE NATHAN: Paul Kane may come forward. Thank you. PAUL KANE, called as a witness by the Government, having been duly sworn, testified as follows: