Witness Sequestration and Testimony-Scope Rulings
93 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 7, 2021 9:05 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 LAURA A. MENNINGER -and- BOBBI C. STERNHEIM -and- COHEN & GRESSER BY: CHRISTIAN R. EVERDELL 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: Matters to take up.
MS. MENNINGER: Yes, your Honor.
JUDGE NATHAN: Go ahead, Ms. Menninger.
MS. MENNINGER: We learned early this morning through a disclosure by the government that they have spoken with witness Brian.
JUDGE NATHAN: I'm sorry, could you pull up the mic closer please. Thank you.
MS. MENNINGER: That they had spoken with witness Brian, who was anticipated to testify today. Brian is the brother of witness Jane.
JUDGE NATHAN: Correct.
MS. MENNINGER: You may recall, your Honor, we had litigation around prior consistent statements; and that Brian is being offered in part to report supposedly prior consistent statements with Jane. We had discussions about whether Jane would be subject to recall in order to be questioned about those particular prior consistent statements, should they be admitted. What we learned from the government early this morning is that after her testimony, Jane called Brian and discussed with Brian her testimony in court, in violation of the Court's sequestration order. She disclosed to him a document that she was shown on the stand during cross-examination; she gave her characterization of the defense attorney who cross-examined her, using an expletive that rhymes with "front." And that was told to this witness, who is anticipated to be testifying today, who is obviously also subject to the Court's sequestration order. I am very troubled and disturbed that witnesses who are still subject to recall are calling other witnesses that they know will be called to testify; that will be called to testify about their memories of events that happened years ago; and that they are disclosing to witnesses -- this witness -- what they experienced on the witness stand, including a document that they were shown, your Honor. I am asking the Court to forbid the witness Brian from being called, given this violation. At a minimum, your Honor, I would ask that there is a hearing outside the presence of the jury in which Brian is subject to examination by the Court as to exactly what happened during this phone call. Those are the two pieces of information that he reported to the government and was reported to us via some handwritten notes at about 2 this morning. That's my request, your Honor.
JUDGE NATHAN: Okay.
MS. MOE: Your Honor, there are only two legal principles at play here. The first is Rule 615 about excluding witnesses from a courtroom. Neither Brian nor Jane has been in the courtroom while other witnesses have testified. That rule has been fully complied with. The other legal principle is that the government cannot have substantive communications with Jane because she is subject to recross about prior consistent statements. We have not violated that legal principle either. With respect to communications between Jane and Brian, we have disclosed our awareness of that and defense counsel is free to cross-examine Brian about those communications; that's all the law requires. There is no sequestration order that prevents family members from talking to one another; of course, it's not best practice.
JUDGE NATHAN: Did the government give any guidance? Just on the first point, witnesses sequestered, so not in the courtroom, could they be provided by another witness or an attorney the transcript of the trial testimony?
JUDGE NATHAN: No, it's just to test the boundaries of what you suggested in the first point, which is the only question is whether they observed trial or not. And I don't think -- I think that strikes me, I haven't looked at the law on this, as an overstatement. For example, I don't think a witness could be provided, consistent with a sequestration order, the transcript of trial testimony; and I wondered if the government agreed with that proposition.
MS. MOE: Your Honor, I haven't looked at the law on that particular issue. That would strike me as sort of consistent with being in a courtroom to see the testimony. And I'm not aware of that occurring in this case; we certainly haven't been providing trial witnesses with transcripts of testimony. I'm not aware of any attorney doing that either. I think what we're talking about is a conversation between two siblings in which one sibling shared that her experience in court was unpleasant.
JUDGE NATHAN: Pull up the mic please.
MS. MOE: Apologies, your Honor. I think what we're talking about here, your Honor, is a conversation between two siblings in which one sibling said she had an unpleasant experience in court; and that she was shown a document on the stand that was -- I don't know all the details of this conversation, just what's been relayed to me.
JUDGE NATHAN: Can I back up and ask if the government gave any direction in advance about not discussing trial testimony with other witnesses, which I think probably would constitute best practices.
MS. MOE: Yes, your Honor. Following Jane's testimony, I spoke with her attorney. I don't want to make a representation that's not accurate. My memory of that conversation is that I told him and reminded him that she was potentially subject to recall and recross. And so my understanding is that he understood the rules about that; and that we couldn't speak with her; and that she was still a trial witness subject to recall. I don't remember whether I repeated, sort of, the ground rules about trial witnesses. That's all I remember from that conversation, your Honor.
JUDGE NATHAN: And did the government prior to trial give -- was there any direction given on this issue -- since this witness is being provided for prior consistent statements, did the government give any direction either to the witnesses or to their counsel that they ought not to confer in light of the reason that the witness is being offered?
MS. MOE: Yes, your Honor. Off the top of my head, I can't point to a particular date or a particular conversation; but it's our practice -- and what we did in this case -- is to tell every witness that their memory should be their memories and they shouldn't be talking to other witnesses before the trial. So I'm confident we did that in this case; I just can't remember a particular date of a particular conversation, but we've been having those conversations with all of our witnesses.
JUDGE NATHAN: And how did the government learn about this conversation?
MS. MOE: Last night we had a meeting with Brian. And he, unprompted, mentioned that he had heard from Jane that she had called him after her testimony and relayed that her experience wasn't pleasant.
JUDGE NATHAN: It sounds like maybe more than that it wasn't pleasant; sounds like part of what was relayed -- that's not the part that concerns me. Needless to say, the point that's concerning is whether she coached him on her responses so that his testimony regarding prior consistent statements would show consistency. That's, I think, the only --
JUDGE NATHAN: I'm not sure there's any relevance -- although it's concerning, I'm not sure there's any relevance to a description of the process is unpleasant or that they did or didn't like the lawyers and how they were treated.
MS. MOE: Yes, your Honor. On the subject of the prior consistent statement, I would note -- and the 3500 material reflects this -- that Brian had relayed the substance of his testimony to the government and it's memorialized in 3500 long before this conversation happened. He has been on our witness list for some time; he's met with the government long before this trial began. And so to the extent there is any suggestion that his testimony is prompted by a recent conversation with Jane during the trial, that's belied by the record here, which is that he has relayed to us those prior consistent statements substantially in advance of the trial. With respect to his communications with Jane, we memorialized what Brian told us about that in our notes and provided them to defense; and so we've been transparent about that. I don't think those notes or that conversation in any way suggests that witnesses are doing something improper or that anyone is coaching anyone to say something in particular. And again, this witness has been on the record with the government about this issue long before the trial.
JUDGE NATHAN: Well, obviously if I allow the testimony, it's fair grounds for cross, needless to say.
JUDGE NATHAN: And where is he in the order of things today?
JUDGE NATHAN: Ms. Menninger, so given the timing of where we are, do you have any authority to support the proposition that -- other than obviously it being fair grounds for cross, that this is a violation of order or law that would suggest a quite substantial remedy of excluding testimony?
MS. MENNINGER: Your Honor, I have not had time to research this. I think that the disclosure came in around 3 o'clock in the morning. And without revealing what time I got up, I have not had time to research that question between when I got up and when I came to court this morning. I have checked the Westlaw headnotes and there certainly are cases where witnesses are excluded for far more minor infractions than this.
JUDGE NATHAN: But infractions of what?
MS. MENNINGER: A sequestration order like walked into a courtroom briefly, you know, or an agent was in the room and heard some of the confidential informant's testimony. That's what I've briefly learned from looking at headnotes, your Honor. Part of my concern is that what you've just heard from the government is those are the two things that Brian volunteered to them. They said they don't know exactly what happened in this conversation. And for all we know, there's more to the conversation than what Brian volunteered, because they may have said, Oh, whoa, don't tell us anymore about that. So that's one of the reasons why my request is to find out exactly what was communicated to him by Jane before he gets on the stand; and that, I would submit, is something that the Court could ask him about under oath outside the presence of the jury to determine exactly the scope of the violation here. Because we only know of one document that she told him she had been shown on the stand. I don't know if she told --
JUDGE NATHAN: Do we know what document?
MS. MENNINGER: Yes, your Honor. He volunteered that it was the Interlochen application that she was shown and was asked, as you know, questions about on the stand. So whether there were other disclosures in that conversation, they weren't written down in the notes. And I suggest that maybe it is important to learn that information before the Court makes a determination about exactly the magnitude of the violation here, your Honor.
MS. MOE: Your Honor, I would direct the Court's attention to our note on this, which is marked 3510-020.
JUDGE NATHAN: Can I have it? While Ms. Drescher is getting that, go ahead, Ms. Moe.
MS. MENNINGER: Your Honor, I have a paper copy, if you'd like.
JUDGE NATHAN: Okay. Thank you. Go ahead, Ms. Moe.
MS. MOE: Thank you, your Honor. The note reflects in the middle of the page that Brian told the government, after Jane testified, she called Brian. Jane did not discuss her testimony. She just told Brian that he should know that the defense attorney is a expletive; and he should know that's what this will be like. Jane mentioned she was shown an Interlochen application. And on that score, your Honor, I would note that the Interlochen application is not the basis of any prior consistent statement. I don't anticipate asking him on direct about his Interlochen application at all.
MS. MENNINGER: The point is we don't know if that's the only thing she told him; that's just what he volunteered to the government.
JUDGE NATHAN: All right. Let's do this. We'll have Brian not testify till after lunch. I think the first task is the government to fully inquire what Brian learned from Jane or anyone else about testimony that's taken place.
MS. MOE: Yes, your Honor. We'd be happy to have that conversation. With respect to scheduling issues, just in terms of the sequencing today, I would note that we anticipate calling -- your Honor, if I could have just one moment.
JUDGE NATHAN: Sure.
(Counsel conferred)
MS. MOE: Thank you, your Honor. I just wanted to think through a scheduling issue because we have a witness who will be testifying beginning probably later this morning, and that testimony may be fairly long. And for scheduling reasons, Brian had planned to fly home tomorrow; and so it may be, just depending on the sequencing of this issue, that we might request to call him out of order to accommodate that. But we can see how the timing goes today and flag that later on.
JUDGE NATHAN: Well, we're not going to speed up Brian because he's planning to fly home today. The question is when we have sufficient time to inquire whether there's been an effective violation of the sequestration order and, if so, what the appropriate remedy for that is. So that's going to require a factual investigation by the government, and then legal analysis from both sides as to what an appropriate remedy is in light of what we learn factually.
MS. MOE: Of course, your Honor. I just wanted to flag a scheduling concern. I certainly don't mean to expedite the issue. We'll thoroughly examine it.
JUDGE NATHAN: Okay. Ms. Menninger, is that --
MS. MENNINGER: Yes, your Honor.
JUDGE NATHAN: -- sufficient in light of where we are at the moment?
MS. MENNINGER: Yes, your Honor.
JUDGE NATHAN: Okay. Other issues?
MS. MENNINGER: Yes, your Honor. I also conferred with the government this morning in light of the briefing last night on Mr. Flatley's testimony. Because the letter that we received from the government is different from what I was told during a conferral on Friday on this topic. So I've tried to narrow the issues as I understand them to be. Your Honor, with respect to any testimony that was in the November 26 disclosure, which I believe is not what was disclosed earlier in September, but most of it is what I would agree is factual testimony. If a document has metadata, any old person can right-click on it, look at the properties, and read what those properties are. There's only one portion of the November 26 disclosure that I believe treads into opinion expert land, and that is on the second page of the November 26 disclosure where Mr. Flatley will testify that he verified the accuracy of metadata by running a particular program. He will explain what metadata is, such as the file name and when the file was created, and where it can be stored in a computer system. Your Honor, if those are the only things that Mr. Flatley intends to testify about, then I think we're fine. It's the things that came in the disclosures on November -- there were more on November 26 that were not in this letter and there were things on December 3rd that were disclosed. If he is limited to those things that were put in the September 26 disclosure, I'm fine with that, your Honor. He also was not ever disclosed as a fact or expert witness with regard to CDs. The original notice and the supplemental notice all refer to his review of devices. So I believe that the government does not intend to put on evidence about CDs through him, but those are the two areas that I think we're down to, your Honor.
JUDGE NATHAN: Okay.
MR. ROHRBACH: Your Honor, as I think our letter indicated, we're quite surprised to receive the defendant's --
JUDGE NATHAN: Mr. Rohrbach, let's just get to the issue. It sounds like it's narrowed to two things. Every letter I get, it starts with, We're so surprised or this has already been litigated. Let's just get to the issue.
MR. ROHRBACH: So, your Honor, I think we're in a pretty good place then. Mr. Flatley is not going to go into very much -- we obviously don't know exactly what Mr. Flatley will say on the stand, but the questions and what we expect to elicit should track the government's November 26 letter. And so it sounds like if defense counsel doesn't have a problem with what's in this letter, then there is no issue here for the Court. I'm not exactly sure what Ms. Menninger is referencing with regard to CDs, but I think that we expect Mr. Flatley to give purely fact testimony regarding CDs, and there's no expert opinion at all involved there. To the extent that it's a late disclosure of anything, it's just a factual view of Mr. Flatley that is in the 3500 material that he may testify to.
MS. MENNINGER: Your Honor, on the CDs, apparently Mr. Flatley intends to testify that a created date is the same thing as a modified date. And also about once a file is burned onto a CD, it can't be unburned. Those are, I think, what the government represented in their letter of last night he intended to talk about, which have never been disclosed to us as his intended testimony.
MR. ROHRBACH: Your Honor, as we said in our letter last night, we don't intend to elicit those things on direct; but also those are factual pieces of knowledge that you can understand without having any specialized training or experience if you just have used a CD burner before.
MS. MENNINGER: If it's not coming out on direct, your Honor, then I don't think it matters.
JUDGE NATHAN: Okay.
MS. MENNINGER: But as to the other ones, I will just make an objection if there's something that's not in the November 26 letter. I think the government knows what their witness is going to say because they are going to ask him questions. And if it's a question that calls for things that weren't disclosed, then I'll bring it to the Court's attention.
JUDGE NATHAN: Okay.
MR. ROHRBACH: That's fine, your Honor.
JUDGE NATHAN: I do want to press a little bit on the CD bit; because I want to know what in the government's mind would happen on cross that would lead the government to redirect with respect to the created date is the same as the modified date or once burned on CD, can't be unburned. I don't want to have the government being too cute here and saying we're not going to do it on direct, but you know full well you're going to do it on redirect.
MR. ROHRBACH: Understood, your Honor. If I could confer with Ms. Pomerantz, she's putting it on; but I suspect it really is unlikely to come out on redirect at all.
JUDGE NATHAN: Okay.
(Counsel conferred)
MR. ROHRBACH: Your Honor, the government is not planning to talk with Mr. Flatley on direct about CDs. So it's hard to imagine what exactly would happen on cross that would make this an issue; but, of course, the government doesn't want to limit itself by promising under no circumstances will it elicit this information.
JUDGE NATHAN: Okay. So if you're not going to ask about CDs on direct, if he's not crossed on CDs, that's the end of the matter.
MR. ROHRBACH: Yes, your Honor.
JUDGE NATHAN: Ms. Menninger, does that get us where we need?
MS. MENNINGER: That's fine, your Honor. Thank you.
JUDGE NATHAN: Okay. Great. Thank you both. All right. Well, it sounds like all that work we did on Flatley last night will just go in the can for future use. I think the only outstanding issue from yesterday is the objection to Exhibit 309. I'm sustaining that objection on 401/403 grounds. What else do we need?
MS. MENNINGER: Nothing else from the defense, your Honor.
MS. MOE: Your Honor, may we briefly be heard at sidebar about an issue relating to potential cross-examination of Brian that implicates a privacy interest?
JUDGE NATHAN: Okay. So this will be sealed; correct?
JUDGE NATHAN: I do have a request for lengthy sealed proceedings that we do them in the robing room because of the physical taxing on the court reporter. So if you think it will be short, we can do it here; if it will be more than five minutes, we should do it in the robing room.
JUDGE NATHAN: Okay. All right.
(Pages 1440 to 1443 SEALED)
(Continued on next page)
(In open court)
JUDGE NATHAN: All right. Just waiting to hear from Ms. Williams, if we have all our jurors. Bring in the jury. Can we have the witness back on the stand.
MS. POMERANTZ: Yes, your Honor.
JUDGE NATHAN: Thank you.
(Jury present)