Kate Instruction, Apartment Photographs, Dawson Stipulation, and Jane Exhibit Rulings

JUDGE NATHAN: Good morning. I received a letter briefing over the weekend regarding the government's request for a limiting instruction with respect to the next anticipated witness. The witness will testify under the pseudonym Kate. As the government has indicated, because Kate was over the age of consent in all relevant jurisdictions at the time that she alleges sexual conduct with Epstein took place, she's not a victim of the crimes charged in the indictment. On this basis the defense moved pretrial to exclude her testimony as irrelevant and prejudicial. I denied that request. I concluded based on the government's proffer that she has relevant testimony that is direct evidence of the Mann Act counts and evidence that is otherwise admissible under 404(b). To avoid jury confusion and prejudice, however, I concluded that her testimony should be limited in the description of details of the sexual conduct that does not form a basis of the charged counts and that a limiting instruction was required.

Over the weekend, the government asked for me to include in the limiting instruction a statement that I instructed the parties not to ask about details of the sexual conduct that the witness will testify occurred with Mr. Epstein. In part, the government justifies this request based on the defense's opening statement that calls into question the credibility of witnesses based on their inability to recall details. Defense opposed this request. I have considered the letters by both sides which were filed under seal pursuant to Federal Rule of Evidence 412. I accept the government's suggestion to include the language in the limiting instruction. The statement is accurate. It ensures a balanced limiting instruction, and it is fair to both sides. It is also appropriate in light of the defense's opening. One question, counsel, the draft language suggests that I direct, quote, the parties to not ask Kate details about the sexual conduct she says occurred with Epstein. I think it would be more accurate to say that I've directed the government not to so ask. I have indicated that if the defense were to do so, it would open the door for the government. So I'll hear from you as to whether your request is to indicate the parties or the government. Mr. Rohrbach.

JUDGE NATHAN: I think what makes sense is she comes in, she's sworn before any questions on direct, I give the instruction, and then the direct testimony begins. Next issue is the 900 series. The government seeks to admit photographs of the interior of Jeffrey Epstein's New York apartment taken in 2019. The government claims that the photos are probative of how Epstein's apartment appeared when Jane, who previously testified, saw it as early as 1994 and therefore corroborates her testimony. Trial transcript at 1075 to 76. The defense objected to the photos' admission. I sustained the objection based on the current record. Trial transcript at 1077. I noted that while, quote, older photographs of immoveable objects and structures may be relevant, end quote, photos of, quote, very moveable objects, end quote, are not relevant unless, quote, there is a witness, end quote, that confirms the photos are similar to how the objects appeared years earlier. Trial transcript at 1076 to 77.

With the leave of Court, the government filed a letter on December 4th, 2021, requesting admission of at least a subset of the photographs. The defense filed a response on December 5th. I must determine the probative value of the photos and then determine if that relevance is substantially outweighed by unfair prejudice. A photograph of the scene may be relevant even if taken months or years after the time period in question if there is reason to believe the photo is probative of how the scene appeared at the earlier time. See, for example, United States v. Causey, 748 F.3d 310, which is a Seventh Circuit decision from 2014. Typically, this inquiry turns on whether the photo depicts, quote, relatively enduring or fixed structures whose locations and arrangement in location to one another would not likely have changed, end quote, in the intervening time period. I'm quoting here from United States v. Smith, 2020WL5663433, which is a District of New Mexico 2020 decision.

For example, the Seventh Circuit in the Causey case affirmed the admission of photographs of houses taken three and six years after the conspiracy ended, stating that, despite the significant passage of time, the photos were relevant because they presented the jury with the layout, size, location, and composition of the houses. 748 F.3d at 316. Similarly, a Court in this circuit admitted crime scene photos of the interior of a restaurant taken nine months later where there was no argument that the photographs at issue did not fairly and accurately depict the interior of the restaurant. Walker v. Conway, 2007WL9225072, Western District of New York, June 25, 2007. The defense argues that admission of the photos is not merely a matter of relevance and prejudice under 401 and 403, but also of authentication under Rule 901, a proposition for which the defense cites a Ninth Circuit case from 1977, United States v. Sterns, 550 F.2d 1167, which is Ninth Circuit 1977. I disagree.

Rule 901 requires that the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Here, the government claims that the photographs are of Epstein's apartment in 2019, a claim that I understand will be provided via testimony and that the defense does not dispute. Whether those photos taken in 2019 are probative of how the apartment appeared in 1994 is a question of relevance under Rule 401 to be balanced with 403, not of authentication. See United States v. Certified Environmental Services Inc., 753 F.3d 72 at 90, which is a Second Circuit decision from 2014 I'll quote here. Quote, with respect to temporal relevance, we have held that a suggestion that an item of evidence relates to a period that is too remote goes to both the item's relevance and its weight. That case quotes itself from another Second Circuit case, Fitzgerald v. Henderson, 251 F.3d 345 at 365, Second Circuit 2001. Though, to be clear, the government, as I said, will still need to authenticate that the photos are of Epstein's apartment in 2019. In any event, even if analyzed under Rule 91, as I'll discuss below in a moment, Jane's testimony about the distinctive characteristics of Epstein's apartment captured in the photos that the Court will admit are a sufficient basis under 901(b)(4) which permits authentication based on the appearance, contents, substance, internal patterns or other distinctive characteristics of the item taken together with all

JUDGE NATHAN: of the circumstances. United States v. Al Farekh, 810 F.Appx 2144, Second Circuit 2020. Based on this case law, the Court will address the government's requested photographs specifically. First, the government seeks to admit six photos, Exhibits 909 through 911, and 913, 915, and 933 that depict structural features of Epstein's apartment. These photos corroborate Jane's testimony that the apartment was massive and contained lots of stone and old wood. Trial transcript 317 to 18 and 320. These are structural features likely to have remained relatively unchanged, even years later. Indeed, the defense expressly does not object to these photos. I admit these six photos. Second, I will admit the photos of Epstein's massage room, photos 902 through 904, 917 and 928, but only if the pictures on the wall are redacted.

The exhibits could corroborate several aspects of Jane's testimony, including that the room was the size of a giant walk-in closet, but space for a giant massage table in the middle of it. Trial transcript at 320. She also described it as very dark and with a red mood and testified that there was a built-in bookcase on the right-hand side. These are structural features of the massage room, not moveable objects that are unlikely to have changed during the interveining period. See United States v. Diecidue, 603 F.2d 535 at 560, Fifth Circuit 1997, which stated that, quote, the floors and walls of the house are relatively permanent fixtures, fixtures that would not likely be subject to removal. The massage table in the photo demonstrates the room's size, layout, and purpose as Jane testified to them, not to prove that it's the same massage table that Jane saw. But the pictures on the wall must be redacted from these photos.

First, the pictures on the wall are not structural or unmoveable, they don't go to the room's size, layout, or purpose. Unless a witness testified that the pictures in the 2019 photos are the same as those in the room years earlier, the photos are not probative as to the presence of those pictures. Indeed, the government admits that it would not argue the particular pictures in the photos were presented while Jane testified she was abused. Second, the government indicates that Jane agrees that Jane did not testify to any art in the massage room. Rather, she testified that she did not look at the walls in the room. The presence of the pictures, therefore, cannot corroborate Jane's testimony and the pictures on the wall risk prejudice because they're likely to distract or confuse jurors. With those photos redacted from the photos, I do conclude the probative value of the photos of the massage room is not substantially outweighed by unfair prejudice.

As indicated, the photos corroborate Jane's description of the massage room and would assist the jury in understanding the, quote, layout, size, location, and composition, end quote, of the space. Causey 748 F.3d at 316. I see little risk of prejudice. The exhibits show features of the massage room to which Jane has testified and the jury has heard because the jury will know the length of time that's passed between Jane's experience as she testified to and the photos. It can determine the photos' probative weight. See Certified Environmental Services, 753 F.3d at 90. The third set of photos that the government seeks to admit, photos 918 and 921, depict several back massagers and a bathroom drawer. The government argues that these photos corroborate Jane's testimony that Epstein used vibrators and back massagers of different sizes in abusing her. The Court will exclude these photos.

First, these items are highly moveable, such that a photo taken decades later is not probative of the items that Epstein owned at the time that Jane testified she was abused. Second, the government has not presented any testimony that the massagers in the photos match or are similar to the massagers to which Jane testified. In short, these photos have little, if any, relevance and they're likely prejudicial because they are likely to confuse the jury. The four sets of photos that the government seeks to admit, photos 936 and 938, depict a room with a stuffed tiger and a stuffed dog. The government argues that these photos corroborate Jane's testimony that Epstein's apartment contained, quote, creepy-looking animals and animal heads and strange things. Trial transcript at 305 to 318. I will exclude these photos, first, both the dog and