Parkinson and Maguire Evidence Hearings
128 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 3, 2021 8:48 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
JUDGE NATHAN: Matters to take up?
MR. EVERDELL: Your Honor, from the defense, I think after Mr. Alessi, there is going to be a series of law enforcement agents to talk about items that were recovered during various searches, and I have some objections to the exhibits that I want to raise now, which we've conferred with the government, we've reached agreement on some things, but there are others to raise.
JUDGE NATHAN: Okay.
MR. EVERDELL: The first witness -- and this relates to the Florida -- the search of the Palm Beach residence. I believe Mr. Parkinson, who I believe is going to testify after Mr. Alessi, is the agent who went through during the search, of October 20th of 2005, of that residence. He did the video walk-through of the residence. So there is video and he was present. I believe he's going to say he was present when photographs were taken of various rooms and things in the house. Those are going to be offered through him. So there are three things to talk about here with Mr. Parkinson. There is the exhibits — the photographs — the video, and the certain testimony. We'll start with the exhibits, the photographs. We already moved in limine to exclude one of the photographs, that was Government Exhibit 288. That was a photograph, if you recall, your Honor, of a younger girl sort of pulling down her underwear exposing her buttocks. That was excluded by your Honor on motions in limine. There is a similar photo, it's the same photo. The one we excluded was that photograph which was hanging on the wall, it was on the floor, but Government Exhibit 270 was the same photograph on the wall. There is consent to that one. Yes, we agreed that that would not be offered. So 270 is not going to be offered. There was one that we didn't reach agreement on, which is Government Exhibit 250. In the motions in limine, your Honor, you excluded Government Exhibit 251, which, if you recall, was a photograph of a toddler, an infant walking forward towards the camera with an adult in the back, naked, and excluded it on 401 and 403 grounds. There is another photo, which is Government Exhibit 250, which shows -- maybe we can pull that up if we can see it. Is it on your screen, your Honor?
JUDGE NATHAN: Yes.
MR. EVERDELL: That, as you can see, depicts Jeffrey Epstein with a slightly older girl. At this point, I believe it is the same girl with her lying across his lap with her bottom -- although with underwear on, but he's got his head down close to the bottom. I think, for similar reasons, this is not relevant and is prejudicial. It shows him with a prepubescent girl. There is no allegations that he or Ms. Maxwell, for that matter, were involved in anything with prepubescent females. This is, I believe, the same girl as the toddler photo. It's his goddaughter. But if the jury sees a photo like this, they may draw some inappropriate assumptions about his proclivities, and we think this should be excluded on relevance and 403 ground prejudice.
MS. COMEY: Your Honor, I think it would make sense to take this up with another exhibit from the same witness because our arguments are the same as to both. With respect to Government Exhibit 296, which is the walk-through video, it's about a 40-minute video, I don't expect to play all of it for the jury, but in the walk-through, you can see that when walking from the top of the staircase on the second floor through the anteroom into the master bedroom, that prominently displayed is the photograph displayed in Government Exhibit 270, which your Honor excluded. It is briefly shown on the screen, but in context, it's clear that it is the primary decoration right outside of the master bedroom that the defendant shared with Mr. Epstein. So, I would like to take that exhibit up at the same time because I think the arguments are the same.
MR. EVERDELL: That's fine, your Honor. I can address that.
JUDGE NATHAN: Okay.
MR. EVERDELL: So as Ms. Comey said, when we do the video walk-through, the agents or Mr. Parkinson is going to describe — and you'll see on the video — they're going up the circular staircase to the second floor, they turn right, and they head down the hallway towards the master bedroom suite. We saw that on the floor plans yesterday. In that hallway on the wall is where that picture of the girl who's exposing her bottom is hanging on the wall. So obviously it's before they took the picture down and before they logged that piece of evidence because it's in the initial walk-through. So you see the photo quite prominently on the wall as the video goes through the hallway towards the master bedroom. Given that your Honor has excluded that piece of evidence, the photograph of that photograph, which is Government Exhibit 288 and also 270, which we're still talking about, that we think that portion of the video --
JUDGE NATHAN: Sorry. Which ones? 288?
MR. EVERDELL: So the photograph of that photograph. 288, you already excluded. That's a photo of that photo on the floor. 270 is the one we consent to, which is a photo of that photo still on the wall. And then 296 is the video walk-through where, when he does it, you will see the photo on the wall as the video goes through that hallway. And given that your Honor has excluded this at least once and we now consent to excluding it twice, we think that that portion of the video should be redacted so that the jurors can't see the picture your Honor already excluded on the video.
MS. COMEY: Your Honor, we consent to the exclusion of the other photograph because we understand your Honor's ruling about the prejudice, especially when taken out of context, but here the probative value is extraordinary when it is taken in context, especially after Mr. Alessi's testimony about the fact that the defendant spent the majority of her nights in this bedroom with Mr. Epstein and the testimony that this is where many of the massages took place that are the subject of the charges here. It is extremely probative of the defendant's knowledge that, in order to walk into that room, you have to go by a sexually suggestive photograph of a young girl. We have no intention of arguing that Mr. Epstein or that the defendant is alleged to have had had any sort of sexual involvement with prepubescent minors, and we would consent to an instruction to that effect if that's what the defense would like, but I think the fact that there is a sexualized photograph of a clearly underage female in the entryway to that room is highly probative. It also directly responds to the argument that the defense made in its opening and has been making through cross examination, that Mr. Epstein was some upstanding citizen who was surrounded by presidents and all sorts of important prominent people, and so he never could have possibly been associated with something so disgusting as sexual abuse of minors. This photograph, right outside the bedroom that the defendant shared with him, directly contradicts that argument.
JUDGE NATHAN: I want to make sure I understand the last point. The last point is that it contradicts the argument because why?
MS. COMEY: Because it is, in defense's own words and in the Court's finding, a very disturbing photograph, a photograph that suggests a prurient interest in underage females. So the fact that Mr. Epstein would choose to prominently display such a photograph right outside his master bedroom contradicts a suggestion that there was some sort of halo effect around him for the defendant, because I believe the defense is setting up an argument that the defendant couldn't have possibly known that Mr. Epstein was attracted to underage females because he was surrounded with, by, and spent so much time with such important and prominent people, and that somebody who spent so much time with such important prominent people couldn't possibly have such a vile attraction to underage girls. This photograph is directly contradicting that argument.
JUDGE NATHAN: So you do think it's evidence of attraction to prepubescent girls?
MS. COMEY: No, your Honor. I think it's evidence that Jeffrey Epstein's lifestyle and that the way that he decorated his home and his private spaces contradicted the public persona that has been presented through the defense arguments and cross examination. And the point here is that the defendant knew not only the public persona, but the private persona, and the private persona included prominently displaying art that sexualized an underage girl.
JUDGE NATHAN: All right. Anything further?
MR. EVERDELL: Your Honor, I don't think that this is connected in one way at all. I think if you asked any parent about, do they have like a photograph of their child as a toddler or their goddaughter as a toddler, like in the swimming pool or something where they're not wearing any clothe, they probably have one of those things. Now, whether they display that on their walls, that's another question, but these are not photographs that are indicative of his lifestyle. The problem is in this case, because of the nature of the subject matter, if a juror sees that, they're probably going to leap that to that assumption, that it's not just -- the allegations in this case are women -- are girls that are under the age, but just under the age of consent, 15, 16, 17, not girls that are 5, 6, 7, prepubescent females. If they see that, then they're going to drew an inappropriate conclusion, which I don't think the government is even arguing, and that is a really big 403 prejudice problem. And that's the issue we're trying to avoid, which is why we moved in limine and why we made those arguments before. If the Court already excluded that very photograph for those reasons, then it's got to be the case that we exclude it in the video for those same reasons. I don't see that the placement and the argument the government is making, it is still those 403 problems and the relevance problems, too, that mean that this should not be seen by the jury, regardless where it's placed or what arguments the defense has made.
MS. COMEY: Your Honor, I think the prejudice will be very restricted here. I do not intend to linger over the photograph or pause while playing it. It will just show the context of the full decorations of the area around the master bedroom that the defendant shared with Jeffrey Epstein. I think that probative value is not substantially outweighed by unfair prejudice, particularly when it is in the context of the video showing the entire decorations.
JUDGE NATHAN: I'm overruling the objection. I think the context is different than the photo in isolation. You'll propose a limiting instruction along the line of what you've indicated.
MS. COMEY: Yes, your Honor.
JUDGE NATHAN: It is consistent with testimony regarding photographs of naked people in the house, it's corroborative of that. It strikes me as different in light of the evidence that's come in and the context in which it is. So I will overrule the objection with a limiting instruction.
MR. EVERDELL: Your Honor, I understand the Court's ruling. If I can make one other point, which is the fact that Juan Alessi has sort of testified about this, but he left in 2002 according to his own testimony. This walk-through and these photographs were taken in 2005, which are three years later. So the government is -- he didn't say that that photo was there. So I mean the government is making the argument that these important people may have seen these photographs or the fact the photograph was there contradicts the defense argument that the people in Epstein's orbit would have known about this, including Ms. Maxwell, but we actually don't have any testimony that the photo was on the wall at the time that's relevant to this case.
JUDGE NATHAN: We have testimony of Jane regarding art and photographs.
MR. EVERDELL: Not this photo, your Honor. They didn't go through with Jane specific photographs, do you recall this one, do you recall that one, was that on the wall, was this on the wall. She gave very, very general descriptions of her recollection of certain residences, not particular artworks, not particular photographs. So I don't think it's fair, on the record we have, to say that this photograph being on the wall in 2005 — mind you, a year after the last year of the conspiracy charged in this case — is probative of anything about Epstein's circle and what they might have known about him or not known about him because we simply don't know whether this photograph was even on the wall.
JUDGE NATHAN: You made your record, I overruled the objection with a limiting instruction as discussed.
MR. EVERDELL: All right, your Honor. So that is the issue with the video.
JUDGE NATHAN: Go back then to the 250.
MS. COMEY: Yes, your Honor. That photograph is displayed on the bookshelves behind Jeffrey Epstein's desk in the lake room that Mr. Alessi testified about. On those bookshelves, there are a number of photographs on different shelves. One of those photographs is a photograph of Jeffrey Epstein with a young girl across his lap and he appears to be pulling down her underwear and indicating like he's going to bite on her backside. That appears to be what it looks like. He prominently displayed that by his desk, the desk in the house that the defendant ran, where she was the lady of the house. We think that that is equally probative and it will be in context of Mr. Epstein displaying that right by his desk.
MR. EVERDELL: Your Honor, I think this is just an attempt to backdoor evidence, your Honor. I mean, you haven't ruled on this one, but a similar photograph for prejudicial reasons that your Honor excluded. If it's displayed behind his desk, yes, that may be the case, but the fact remains, we have issues with this jury seeing photographs like this and making assumptions about what people were doing or not doing. There are no allegations in this case that Jeffrey Epstein was attracted to prepubescent girls, and they will potentially draw the wrong conclusion about a photograph of somebody with his goddaughter in some sort of playful moment, it would appear — maybe not everybody does this with their goddaughters, but it's certainly nothing illegal — and they will look at this and assume that his predilections strayed not just to young girls, but to prepubescent girls. It's similar, not just in context, this photograph is a closeup photograph of that photograph, the same way that Government Exhibit 288, which your Honor already excluded about the girl with the underwear exposing her bottom was not in context enough to respond to this argument, it is the same issue. You're looking at a photograph of the photograph by itself without context showing what it shows, and the jury is going to draw an improper conclusion.
MS. COMEY: Your Honor, the jury will see the photograph after seeing a series of photographs of the bookshelves around Jeffrey Epstein's desk. I'm not sure I understand what argument the defense is making. Is this an innocent photograph that's just normal behavior between a godfather and his goddaughter or is it deeply disturbing, overly sexualizing a young girl? We would consent to another limiting instruction similar to the one that I proposed with respect to the master bedroom photograph, but this one if that addresses the concern about an improper inference the jury might draw.
JUDGE NATHAN: So the time has elapsed between 288 and 250 in terms of the age of the girl?
MS. COMEY: I would need to look, your Honor, to refresh my own recollection of how old she appears.
JUDGE NATHAN: I thought you said that one when we first brought it up, but I'm not certain.
MS. COMEY: I don't know that to be true, so I don't know if I did say that. I apologize. I don't know that to be true. I would want to check and look at the photograph myself.
MR. EVERDELL: Your Honor, we are displaying, if you want to see it, 288, which your Honor already excluded, side by side with the photo we're talking about now, 250, which we're seeking to exclude. We believe that's the same girl. To us --
MS. COMEY: Can I see what you're showing?
MR. EVERDELL: Yes. Your Honor, looking side by side, I believe we are talking about the exact same type of photo taken in the exact same scale with the exact same closeness of the exact same girl, is my belief. So I think it's the same ruling that your Honor already made, that this is overly prejudicial and the jury will draw the wrong conclusion from it, so we need to exclude it. I don't see the difference.
MS. COMEY: Your Honor, I think the difference here is that, in Mr. Everdell's -- in the photograph that your Honor excluded, the photograph was on the floor. It was unclear where it had been positioned originally. It was unclear where it had been positioned when the search was conducted. Here, this is a photograph I expect the witness will testify to, showing the exact placement, and the reason we need that closeup is because the photograph of the zoomed-out bookshelf, you cannot actually see the image. You can see the frame and you can tell that it's the same circular frame, but you cannot see the image without a closeup, so we will show the two in succession.
MR. EVERDELL: Your Honor, that's the point. If you zoom out, you will see this photograph in the context of other photographs that are nonsexual. This I don't think is sexual, but that are not with underage girls, that are with other photos, including people with adults. It's shown in context in a series of photos along a bookshelf where people tend to keep photos, lots of different photos, and it will show a panoply of photos that is not one photo of a clearly minor child with him looking like he's about to bite her backside. At least there you have a full context of other photos and it is not a zoom-in on the one photo showing details of what's going on there, where the jury, again, will draw an improper conclusion from.
MS. COMEY: Your Honor, I'm not sure I understand Mr. Everdell's point about context, because those photos in the bookshelf include a photo of Jane, they include photos of nude and partially nude females. I don't understand the argument about the context. The context had sexualized images of females around his desk.
MR. EVERDELL: Jane testified she was 19 when those headshots were taken. So that's the point, your Honor.
MS. COMEY: Your Honor, I don't think that's the testimony. I believe she testified she was 15.
JUDGE NATHAN: I'm going to overrule the objection. Context, again, matters and distinguishes from the pretrial rulings. You'll craft a limiting instruction and run it by the defense.
MR. EVERDELL: Understood, your Honor. There is one last issue with this witness, which is his testimony --
JUDGE NATHAN: This is Mr. Parkinson?
MR. EVERDELL: Mr. Parkinson. So everything we've been discussing so far, I believe, is going to be introduced through Mr. Parkinson. We have the video, the photos, and now his testimony. I understand from the government and from the materials we've been given that Mr. Parkinson is going to testify that he found or he saw at least a green massage table when they did the video sweep and that he was able to look at that table when he was there in the house, and then he saw what appeared to him to be semen on the table. I don't think that that testimony is appropriate because, for example, on both 401 and 403 grounds, this table was found a full year after the last year of the conspiracy charged here, so that's 2004. The search was October 20th, 2005, a full year later. Him seeing something that appeared to be semen, first, they never tested it, it's in a room with lotions for massage. How he knows this appears to be semen, I don't know, but regardless of that fact, it's done a year after the fact. Any number of ways that could have been on there, if it is, in fact, semen, I don't see how it's probative of a conspiracy that ends in 2004, unless they can show that the semen was on the table during the time period of the conspiracy. Given that, if we have an agent talking about semen in front of the jury, that's just going to be a salacious detail that is going to be prejudicial of the client. So we object on 401, 403.
MS. COMEY: Your Honor, I expect this testimony would be very brief and very clinical. He would describe seeing a white stain that he saw and thought was consistent with the appearance of semen, and I think that is entirely --
JUDGE NATHAN: It wasn't tested?
MS. COMEY: It was not tested.
JUDGE NATHAN: Or preserved in any way?
MS. COMEY: It was not, your Honor. It was corroborative of the testimony already received and testimony I expect will come later in this trial.
JUDGE NATHAN: What about the timeframe issue?
MS. COMEY: Your Honor, I think it's still corroborative that these massages were sexual. The fact that Jeffrey Epstein's massages were sexual, even if it was just a year after the end of the conspiracy, is still probative of whether or not these massages were just massages, as I expect the defense will argue the defendant believed, or were, in fact, sexual. We think it is highly probative.
JUDGE NATHAN: I would permit lab tests that indicated it was semen, but in light of the essentially lay description in combination with the timeframe issue, I'll sustain this objection.
MS. COMEY: Understood, your Honor.
MR. EVERDELL: Thank you, your Honor. I think that's everything we have for Parkinson.
MS. COMEY: There was one logistical issue, which is we will be offering this video under seal because it contains images of witnesses who your Honor has permitted to testify under pseudonym and nude images of third parties. We will need to play it on the jurors' screens, and I think that because the video moves pretty quickly through any images, we don't have concerns about the public being able to just glimpse something from a juror's screen, it moves pretty quickly from the house, but what we would ask is that the public television be turned off before the video is played so there is not a big screen showing it.
JUDGE NATHAN: If it's under seal, I guess maybe we can't do both, just the jurors' screens, including nude images of a prepubescent third party, that privacy should be protected. You'll work with the tech folks to make sure and maybe consider positioning the jurors' screens. Any objection to that?
MR. EVERDELL: No, just in terms of obscuring the video --
JUDGE NATHAN: The material coming in under seal to protect privacy interests.
MR. EVERDELL: No, Judge.
JUDGE NATHAN: What else?
MR. EVERDELL: We're done with Parkinson?
MS. COMEY: That's right.
MR. EVERDELL: There is another witness after Parkinson, and that's Mr. Dawson, and there is a witness after that is Kelly Maguire; is that right?
MS. COMEY: That's correct, your Honor.
MR. EVERDELL: I have issues --
JUDGE NATHAN: It's a different order than what you gave me.
MS. COMEY: Yes, your Honor. We alerted the defense but neglected to alert the Court. We let the defense know yesterday that due to some travel issues with the pace of trial, we need to reorder the witnesses. So we will be doing Parkinson, then Dawson, then Maguire, then Meder, then Flatley, and I think that will take us through the end of the day, but if we need to, there are some additional witnesses who we can get to come to the courthouse.
JUDGE NATHAN: Shelling is not today?
MR. EVERDELL: We stipped to --
MS. COMEY: We stipulated to Shelling.
JUDGE NATHAN: So Parkinson, Dawson, Maguire.
MS. COMEY: Correct, your Honor.
JUDGE NATHAN: Meder or Flatley?
MS. COMEY: Meder, then Flatley.
MR. EVERDELL: Your Honor, if you want, we can take up the issue of Maguire later if you prefer because I don't think she'll go on until after lunch, most likely.
MS. COMEY: I think that's very likely.
JUDGE NATHAN: Let me just see if we have a note that we have all our jurors. Until we have all our jurors, I'll take it up.
MR. EVERDELL: My understanding, your Honor, Kelly Maguire is an FBI agent who assisted with the search of Mr. Epstein's Manhattan townhouse in July of 2019. So that's after his arrest, they executed several search warrants at his Manhattan townhouse, collected a number of items of evidence, and took photographs of the exterior and the interior of the townhouse. My understanding is that the government plans to introduce a number of the photographs of the exterior and interior through Ms. Maguire, who was present during the search, and also certain physical items like they're not -- well, there were hard drives that were found and CDs that were found. Those I don't believe are going to be admitted, but she's going to discuss them, and there is also some physical items like costumes and a massage table there. I think we should start with the physical items, because I did with confer with the government and we reached some agreement or understanding about the hard drives and the disc because they purportedly contain information that relates back to the time period of the conspiracy, we don't have an issue with, and my understanding is they're not going to introduce the hard drives or the discs themselves, or even photographs of the hard drives or the disc. So that I don't think is an issue if I'm correct, Ms. Moe?
JUDGE NATHAN: So other physical items that might come in through this witness, there is the massage table itself and the costumes. I think we agreed or the government represented that they do not intend to introduce the massage table itself, just photographs of the massage room where the table was present; is that right?
MS. MOE: That's correct, your Honor. We'll be offering photographs of the massage room, we're not offering the physical massage table itself.
JUDGE NATHAN: But the photograph contains an image of the massage table?
MS. MOE: Yes, your Honor. There are a number of photographs of the massage room, those photos depict the massage table. We're not offering the table itself in evidence.
MR. EVERDELL: I'll get to the photographs in a second, your Honor. The last physical item is the costumes themselves, I believe it's a box of five costumes, cosplay costumes that were found in the residence. Obviously, your Honor, this search took place in 2019, that's 15 years after the last year of the conspiracy charged in this case. We don't have any testimony up to this point about anybody involved in costume play, cosplay, dressing up. There may be some later, I don't know, your Honor, but the fact that these costumes are found 15 years later in the residence does not seem to be relevant or probative of anything going on in this conspiracy charged in the indictment. It's far too attenuated and at the very least, at this point, we don't have any testimony about any costume play. So, again, I don't see the relevance at this point of introducing those costumes. And there is a 403 issue because — setting aside how relevant it is because we don't believe it's relevant at all — we start talking about costumes and that again raises things that no witness has testified to at this point and is going to potentially make the jurors make a moral judgment about Mr. Epstein, about conduct that could be legal. I mean, we have this discussion in the motions in limine because the one witness who may talk about this is witness 3, but she was above the age of consent at all relevant times during the conduct that's charged. So I don't see the relevance of these, and I think there is a 403 issue, as well.
JUDGE NATHAN: Ms. Moe.
MS. MOE: Your Honor, throughout this case from opening statements, defense counsel has repeatedly suggested to the jury that all of the victims in this case were overage, that nothing improper happened, and suggested to the jury that no one had an interest in underage girls. The fact that Jeffrey Epstein had a collection of schoolgirl outfits alongside the same floor as his massage room, in the same room where he kept the massager devices that are consistent with the way the witnesses have described, certainly rebuts that argument. It's not illegal to own schoolgirl costumes, but it directly speaks to a sexual preference for underage girls and its relevance is readily apparent in connection with the testimony in this case.
MR. EVERDELL: Your Honor, the fact that Jeffrey Epstein may have had schoolgirl costumes in 2019, 15 years after the conspiracy, is not probative of anything in this case. There is no link whatsoever to anything in this residence so far with Ms. Maxwell. We had testimony that she never lived in this residence. So I don't see how anything this attenuated that doesn't have a link to our client that is potentially prejudicial and there is no testimony establishing its relevance at all to begin with should be admitted before the jury.
MS. MOE: Your Honor, with respect to the timing issue, if defense counsel wants to argue to the jury that Jeffrey Epstein somehow developed his interest in underage girls after the timeframe of the charged conspiracy and in 2019, they're welcome to try to advance that argument, but otherwise I don't think the timing issue here is relevant. It's clear throughout the testimony of the witnesses and up to date that he maintain an interest in schoolgirls and that's why there were schoolgirl outfits in the residence. It's clearly probative of his sexual interest in underage girls, which the defense hat put at issue squarely in this case. This evidence is probative of that question. In particular, the fact that schoolgirl costumes, small ones, were found in the same floor of the house as a massage room where an underage girl was sexually abused is certainly probative.
JUDGE NATHAN: It seems to me that that evidence, as you alluded, Mr. Everdell, so I have my denial of the exclusion of witness 3. There are 412 issues in that, so that is sealed, I'm going to be cautious, but I think it's consistent with what I indicated would be permitted as testimony with regard to that witness. So, I think the arguments that are being made go as to timeframe, go to weight and not admissibility, and I will overrule the objection.
MR. EVERDELL: Your Honor, if I could just make one request, which is if we're going to let that exhibit be admitted, that it be admitted subject to connection and not shown to the jurors until we have testimony that relates back to a particular victim in this case.
MS. MOE: Your Honor, if the Court would prefer to either admit that evidence subject to connection or reserve on that issue, unless and until that witness testifies, we'd have no objection. Our argument remains the same that it is probative of his interest in underage girls, separate and apart from it being corroborative of any witness testimony that may occur at this trial. So our view is that it should be admitted now, regardless of future witness testimony based on the record to date and the arguments from the defense about what was going on, the age of the victims, and whether anyone was interested in underage girls. So we would ask the Court to admit this evidence now, but if the Court's ruling is dependent upon the prospective testimony of a witness, we would have no objection to offering it subject to connection or the Court reserving on that issue.
JUDGE NATHAN: So for the reasons that I permitted testimony similar, I concluded it was relevant and not outweighed by prejudice. That's my point, is consistency. I think for the timeframe issue, I'll reserve subject to connection.
MS. MOE: Yes, your Honor. Just so I understand how to navigate that issue with this witness, would the Court's preference be -- I'm just thinking about the mechanics of this in terms of what's coming out before the jury to lay the foundation for this before the Court reserves, being mindful that the Court is reserving on this issue.
JUDGE NATHAN: This is coming in through photographs, I presume?
MS. MOE: Yes, your Honor. There are photographs of those costumes. Because they are folded, we are also offering a bag containing the costumes themselves and would anticipate otherwise asking Special Agent Maguire to publish them to the jury so that they can see both what they look like and also how small they are. So I'm just thinking about the mechanics of this. One option would be to offer the photographs and the bag without eliciting out loud what they are and just confirming without describing them that these are items that were recovered from the residence and where they were recovered without publishing the photographs or opening the bag. Would that be the Court's preference? I'd be happy to do it another way.
JUDGE NATHAN: Mr. Everdell.
MR. EVERDELL: Your Honor, I do have an issue with these being displayed or shown in any way, shape, or form until witness 3 testifies. I actually have some concerns and I hope they're not unfounded. They pushed her testimony off, she was originally supposed to testify today, I don't know if it maybe had to do with a travel issue or not, but I don't know is she going to testify or not, when is she going to testify, if she doesn't testify for whatever reason, then these items and the photographs of those items should not be seen by the jury at all. And so that is my concern. I don't want this to be in their heads, in their minds at all unless we have a witness on the stand who can connect their relevance to this case, and that has to be, from what I understand, witness 3. And so I don't think these should be admitted. I don't think they should be shown. If the government wants to introduce pictures of them, which I know is Government Exhibits 919 and 920, are photographs of the costumes outside of the box I believe, and the costumes themselves are Government Exhibit 53, the government wants to get the agent to describe certain items they found without exactly describing what they were, but have those items somewhat generally described and the photographs, you can describe taking a photograph of certain items, but not described in a way that the jury is going to know what they are. They can't be described as schoolgirl outfits.
JUDGE NATHAN: Right. I think it's consistent with what Ms. Moe said, which is basically some version of showing the items to the witness but not the jury, and just simply asking, without describing what they are, did you find these items during the search.
MR. EVERDELL: As long as there is no description of the items and no showing them to the jury, I don't I think I have a problem.
MS. MOE: Yes, your Honor, that's what I was trying to flag, a way of laying the foundation without putting before the jury prematurely what they are. If I'm permitted to lead the witness and direct her not to describe them, I'll just lay that foundation and have her identify the bag, which is opaque, that contains those items. I think that's all we need to do. At that point, I would just ask for permission to lead to make sure that we're just laying a foundation without describing those items or otherwise displaying them to the jury.
JUDGE NATHAN: And you could say clearly, without describing the items or showing them, just look and did you find these items.
MS. MOE: Exactly, your Honor. I'll have a conversation with Special Agent Maguire before she testifies to make sure we're on the same page.
MR. EVERDELL: One last issue and then I'll sit down, I promise, your Honor. Special Agent Maguire is also going to testify, as I mentioned, a series of photographs of the exterior and the interior of the residence that were taken during the search. The exterior photographs, I don't think there are that many, I don't think we have an issue with because the exterior of that building did not change from the time period of the conspiracy — which I mentioned several times — ends in 2004 and the time of the search, which is 15 years later in 2019. However, the photographs of the interior — and there are lots of them, photographs of rooms, decorations, artwork, paintings on the walls, photographs on the walls — those are all taken from a time in 2019, which is far removed temporally from the relevant time period in this case.
We've already had a lot of testimony about how there were frequent renovations to these places, we had testimony from Juan Alessi about that, and so there is no reason to believe that the interior of this townhouse looked the way it did in 2019, whether it looked the same way in 1994 to 2004, which is the time period of the conspiracy. In fact, quite the opposite. We have every reason to believe that there were significant changes based on the testimony. So my objection is, your Honor, I don't think, unless they have a witness who can say that these photographs taken in 2019 look like those rooms that I saw back in '94, '95, or 2002 or some time period that's actually in the conspiracy, and I don't think they do, then these are irrelevant and they shouldn't be admitted to the jury because there is no basis to believe that this is what the place looked like on the inside back 15 years before.
I believe the only witness they have testified so far, and maybe the only one they can offer, is Jane, who testified very, very generally and very briefly about how the New York townhouse looked on the inside. She said something to the effect of, there was old wood, it was dark, there were creepy animal pictures on the wall. That's all we had. I think she said she may have slept on the eighth floor in the guest room, but there certainly wasn't a room-by-room description of what this place looked like. And my understanding is there is going to be several photographs, room by room, of what that this place looked like. So I don't think they've established a foundation for these photos, your Honor, and I don't think they will be able to because I don't think they have another witness who can do it, and I don't think they should be admitted.
JUDGE NATHAN: What are the exhibits numbers?
MR. EVERDELL: It's everything in the 900 series, your Honor, minus the ones that are of the exterior, and I don't have those in my mind, but anything in the 900 series that is an image of the interior. And that also would include, your Honor, the massage rooms. I understand they want to introduce photographs of the massage room, interior. And case in point, your Honor, there are photographs on those walls in the massage room of nude females that we don't believe actually were there in the relevant time period. So this is the problem with introducing photographs from 2019 when it's 15 years after the fact.
MS. MOE: Your Honor, as a threshold matter, I think Mr. Everdell was referring to testimony from Mr. Alessi about renovations. My understanding is that that testimony was about renovations in the Florida house and not the New York house. With respect to the point about a witness identifying the interior of the house as being consistent during the timeframe of the charged conspiracy, that witness is Jane. I would respectfully direct the Court to pages 318 through 320 of the transcript, which is Jane's testimony. She described, in fact, in striking detail what was it was like to be inside the house and what the artwork was like. I'd be happy to read that into the record.
JUDGE NATHAN: I'll take a look at it. We do have all of our jurors. I think I have your argument on this one. We're not going to get to this witness before lunch. I'll take a look at Jane's testimony and the 900 series of exhibits and I'll hear from you further at the break if I need to.
MR. EVERDELL: Thank you, your Honor.
MS. COMEY: Your Honor, one logistical issue that Ms. Drescher reminded me of. Is there a way to confirm that when we play the video on the jurors' screens that it will not appear in the overflow rooms? My understanding from my conversation is when you play anything on the juror's screens, it automatically shows up on the public screen. I was going to turn off the public screen, but that won't work.
JUDGE NATHAN: We would have to have staffing to turn off all of the screens in the overflow rooms. Is this in the immediate? No, we have Mr. Alessi's cross.
MS. COMEY: It's the next witness after Mr. Alessi.
JUDGE NATHAN: So Ms. Williams will check with the AV folks in the interim to see if there is any way to just show -- I think there may be, but we'll work on it. So the point is, is there a way to just show video on the jurors' screens? We also don't want them on counsel's table; right?
MS. COMEY: I think we can turn off the screens on counsel's table to the extent they face --
JUDGE NATHAN: So you have counsel table screens, we've got the screen here in the courtroom that shows admitted evidence, and we've got the overflow rooms that shows admitted evidence. So we'll check into that. Another option is maybe there is a way to position two screens so that it's just showed to the jurors that way. I'm not sure, but we will inquire. We don't think this will happen before the morning break, do we?
MS. COMEY: I think it depends on how long the cross of Mr. Alessi will be.
JUDGE NATHAN: Mr. Pagliuca?
MR. PAGLIUCA: If we're taking the morning break at 10:30, timeframe issue, I think we're safe that it won't happen with the morning break, your Honor.
JUDGE NATHAN: We'll shoot for that. I think basically what we're going to need is someone on your team to talk to the AV folks to explain what and when you want to do it and Ms. Williams will have someone come for you to do that with. But she can convey in the meantime that the basic proposition is, is there a way to show video on the jurors' screens without it being on any other screens in the courtroom, including the overflow rooms.
MS. COMEY: Thank you, your Honor.
JUDGE NATHAN: I think we can bring in the jury, Ms. Williams. Good morning, Mr. Alessi. You may take your seat.
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(Jury present)