Lunch Redaction, Limiting-Instruction, and Sealed Rule 412 Matters
67 linesJUDGE NATHAN: Actually, we'll break for lunch here, Ms. Comey, unless you're on the cusp of finishing.
MS. COMEY: No. This is a good stopping point, your Honor. Thank you.
JUDGE NATHAN: All right. Members of the jury, we'll break for lunch. We'll see you in about an hour.
(Jury not present)
JUDGE NATHAN: Mr. Rodgers, you may step down for the break. Everyone may be seated. You may head out. Thank you.
(Witness not present)
JUDGE NATHAN: Okay. Matters to take up?
MS. COMEY: Not from the government, your Honor.
MR. EVERDELL: Your Honor, just a procedural point for this witness on cross-examination, and I just noticed it now in the direct. Counsel for the government was referring to certain flights and noting that Epstein and/or Maxwell were on the flights, and then would say "and others," without naming those individuals. I plan on cross-examining to name individuals that are not going to link up to anybody who needs to be anonymized. The examples we just looked at are perfect examples. I don't see why that's not permissible.
JUDGE NATHAN: I was going to say, this struck me as overly redacted in any number of ways, including from the fact that you read from parts that are redacted. So I recognize it's labor, but this needs to be more narrowly tailored. I don't know why it wouldn't be permissible.
MR. EVERDELL: That's my understanding too, your Honor.
MS. COMEY: Your Honor, there was no particular reason why I wasn't referencing the names of those other people other than I didn't think that they were relevant to the question I was asking. So I have no objection to Mr. Everdell saying the names of other individuals, except for obviously those who have been granted anonymity by the Court. I also understand the Court's view on narrowly tailoring these redactions. That will be very time-intensive, your Honor. I would ask for permission to do that over the long weekend break that we have coming up.
JUDGE NATHAN: Okay. That's fine. Let's do that. Relatedly, the message pads, I think you only have one or two unredacted exemplars, but most of those -- other than the -- for example -- sometimes, for example, it said just Carolyn, so that doesn't need to be redacted at all. In other instances, the last name would need to be redacted.
MS. COMEY: So, your Honor, the thinking was that there's phone numbers for not only Carolyn, but also a number of third parties.
JUDGE NATHAN: We could do redactions of the last four, for example. Again, I understand it's labor, but do it now or do it later and, it seems to me, better to do it now.
MS. COMEY: Yes, your Honor. May we have the long weekend coming up as well to complete those redactions please?
JUDGE NATHAN: Yes.
MS. COMEY: Thank you, your Honor.
MR. EVERDELL: One other choreography point just for purposes of cross, we do have folders for the jury. I could put it under their chairs now, as long as they are instructed not to look at them.
MS. COMEY: No objection.
JUDGE NATHAN: Okay. Have you looked at the in limine instruction?
MR. ROHRBACH: Yes, the government has no objection.
MR. EVERDELL: Your Honor, actually if we could take that up when we return from the lunch break.
JUDGE NATHAN: Okay. That's fine. And then I don't know if you've conferred on 52. I'll obviously consider any argument; but, among other things, if it's premised on Mr. Alessi's testimony, the defense had no opportunity to cross-examine him, so even -- am I misunderstanding?
MS. COMEY: Your Honor, I don't --
JUDGE NATHAN: I had understood Mr. Rohrbach to indicate that there was going to be a briefing tonight on Government Exhibit 52.
MS. COMEY: Yes, your Honor. I just didn't understand the point that the defense didn't have the opportunity to cross-examine Mr. Alessi. I think there was extensive examination of Mr. Alessi and voir dire on Government Exhibit 52, as I recall.
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JUDGE NATHAN: I'll consider it after you confer, but you know where it was. And that's all I have.
MR. PAGLIUCA: Your Honor, on that point, I'm assuming what the Court means is if there is a new issue raised that wasn't raised during the examination is the problem. Is that what the Court is alluding to?
JUDGE NATHAN: Having not admitted it pending what all along had been the government's proffer as to the anticipated testimony of an anticipated witness, I didn't admit it following Mr. Alessi's testimony. It's true that there was voir dire on it, but I don't know what new argument will be asserted, and it strikes me that the fact that it -- whatever argument is being made in the absence of the witness could be an issue.
MR. PAGLIUCA: Right. That's what I understand. That was my understanding. I get it.
JUDGE NATHAN: I'm open to arguments. Obviously, both sides have reargued many issues and I keep an open mind. Anything else?
MS. COMEY: Not from the government, your Honor.
MR. PAGLIUCA: Nothing from the defense, your Honor.
(Recess) AFTERNOON SESSION 1:54 p.m.
(Jury not present)
(Witness not present)
JUDGE NATHAN: Matters to take up?
MS. COMEY: Nothing from the government, your Honor.
MR. EVERDELL: We've not had the chance to confer with the government on this, but there is one proposed edit or two proposed edits to the limiting instruction. If you give us a minute, we can try to confer briefly.
JUDGE NATHAN: Sure. Go ahead.
MR. EVERDELL: Your Honor, sorry about that. We have conferred and I think we have agreement on the language.
JUDGE NATHAN: Okay.
MR. EVERDELL: There is just two edits to the Court's -- proposed two edits to the Court's proposed instruction. I'll just read it from the beginning. It says, "Now, I anticipate that you will hear testimony from the next witness about it..." and here's the first change, change from "sexual conduct" to "physical contact."
JUDGE NATHAN: Okay.
MR. EVERDELL: "That she says she had with Mr. Epstein in New Mexico. I instruct you that the..." and here's the second change, "...alleged physical contact she says occurred with Mr. Epstein in New Mexico was not, quote, illegal sexual activity, unquote, as the government has charged in the indictment. I won't read the rest, your Honor. The rest is as is.
MS. COMEY: That's fine with us, your Honor.
JUDGE NATHAN: Great. I accept that and will give that -- and I propose that the timing would be the same as with the prior witness with the limiting instruction?
MS. COMEY: Yes, your Honor.
MR. EVERDELL: Sorry. One more moment, your Honor. We have agreement again, your Honor.
JUDGE NATHAN: It's a magical moment.
MR. EVERDELL: It is a magical moment. I agree with you. Let's hold onto this. So the changes I read remain, but I will read the first sentence again. "I anticipate that you will hear testimony from the next witness about physical contact that she says she had with Mr. Epstein and Ms. Maxwell in New Mexico. I instruct you that the alleged physical contact she says occurred with Mr. Epstein and Ms. Maxwell in New Mexico was not illegal sexual activity." The rest is the same.
MS. COMEY: That's fine with us, your Honor.
JUDGE NATHAN: Great. Thank you. That makes good sense. On this issue, and there is a 412 issue that we had discussed -- let me talk to you at sidebar, that goes to whether there is a dispute as to the scope of what will be explored.
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(In Open court)
JUDGE NATHAN: Any other matters to take up?
MS. COMEY: No, your Honor.
MR. EVERDELL: No, your Honor.
JUDGE NATHAN: Okay. We can bring in the jury. We can have the witness back. Good afternoon, Mr. Rodgers. You may take your seat and you may remove your mask. Bring in the jury.
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(Jury present)
JUDGE NATHAN: Thank you, members of the jury. Hope you had a pleasant lunch. We will continue, Ms. Comey, with your direct examination of Mr. Rodgers. Mr. Rodgers, I do remind you, you are under oath. You may inquire.
MS. COMEY: Thank you, your Honor.
BY MS. COMEY: