Witness Recall, Limiting Instruction, Subpoena, and Employment-Records Matters
164 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 8, 2021 8:52 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
JUDGE NATHAN: Good morning, everyone. Matters to take up, counsel?
MR. ROHRBACH: A couple matters from the government, your Honor.
JUDGE NATHAN: Yes.
MR. ROHRBACH: First, we just wanted to confirm, as per our discussion at the end of the day yesterday, that whether or not the defense is planning to recall Jane and whether they are releasing Brian from subpoena.
MS. MENNINGER: Your Honor, I had understood that there was going to be a conversation with Jane about the conversations she had with her brother, and that would be disclosed to us. I didn't receive that last night. I think we need to know whether there is not truth telling going on in the recounting of this event.
JUDGE NATHAN: And that's with respect to recalling Jane, not with respect to subpoenaing Brian; correct?
MS. MENNINGER: It could be with respect to either one. We already have Brian under subpoena, your Honor. With respect to the calling of Jane, I would like to know that before we make a decision.
JUDGE NATHAN: I did ask yesterday if you had prevailed on your motion not to exclude Brian, would you subpoena him and you said no. I realize you didn't prevail nor did you -- not prevail, the government withdrew him, but is your position now that, even though the government is not calling him, you may still seek to subpoena him?
MS. MENNINGER: We may, your Honor. As I mentioned, we have the other brother under subpoena and some of this depends on what comes out between now and our case in chief. I'm not 100 percent sure I can give you ballparks of likelihoods, but I think we would need to see -- I would like full disclosure before we make a decision about that.
MR. ROHRBACH: I don't see any basis for that, your Honor. The government is not calling Brian as a witness at this time, so there is no basis for us to inquire more about Brian's statements. The other brother is not a government witness and is also not -- there is no suggestion that that brother has been in conversation with Jane about anything of substance in any event. That's a defense witness. Jane has already testified. So there is no basis for us to inquire further about that. If she's subject to recall, she's subject to recall for confrontation about the prior consistent statements that have been introduced and not just general additional questions by the defense.
MS. MENNINGER: We don't know if she's spoken to the other brother, your Honor. We are not in contact with him. We have him under subpoena based on his interviews with the government and the things he told the government during his FBI interview, not because we had some other contact with him.
JUDGE NATHAN: So you have a choice to make whether to subpoena him or not. I'm just trying to understand what the decision point is. The government has indicated they're not calling Brian.
MS. MENNINGER: He has a lot of prior inconsistent statements with his sister, your Honor. That's the decision point. He said a lot of things that are inconsistent in her prior statements. We understand if we call him that your Honor is likely to allow them to then bring in the prior consistent statements that they would have elicited had they called him yesterday. So that's a decision point.
JUDGE NATHAN: Okay. You have a decision point whether to call him?
MS. MENNINGER: Right.
JUDGE NATHAN: Is there an application with respect to it?
MS. MENNINGER: No, your Honor. We have him under subpoena.
JUDGE NATHAN: Mr. Rohrbach.
MR. ROHRBACH: I suppose we just flag that Brian has left the district since he's no longer a government witness. If the defense ends up deciding to call him, I suppose that's their choice to make. It sounds like the defense has not yet made a decision about whether they're going to recall Jane. I just want to make sure I'm understanding --
JUDGE NATHAN: Sounds like that.
MS. MENNINGER: That's correct.
MR. ROHRBACH: -- defense's position. So I guess we would just repeat, your Honor, that the only issue for which Jane is subject to recall is the issue of the prior consistent statement and not the broader question of her contacts --
MS. MENNINGER: If she's had contact with her younger brother, who is under our subpoena, that might be fair game, your Honor. In my mind, she's violated the sequestration order.
JUDGE NATHAN: As I indicated yesterday, before the government withdraw Brian, I thought that was unlikely to be my conclusion. I don't have any different basis for coming to a different conclusion, unless we learn something substantial, but, again, there was no order in place, I don't think. I didn't enter one directing witnesses not to speak to each other. It is certainly not a good practice for reasons that have become apparent. And he didn't come into the courtroom, which is what the text of 6/15 indicates. I hypothesized whether someone giving him a transcript of the proceeding would be, if not a violation of the letter, a violation of the spirit. There is no contention as to that. In any event, I'm still unclear what the decision point is. You have decisions to make as to who to call, but you're not seeking anything --
MS. MENNINGER: No, your Honor. And if I were to call her and ask her something outside of the prior consistent statements, we would brief that to your Honor or bring that up in advance, we would not just do that. It's just that, as your Honor has seen, they shaved a substantial amount of their case off and are not calling a number of witnesses that they intended to call, and we are assessing who we need to call in getting those people here and so forth. So I just, in asking you right this second, what decision we've made about our case in chief, I can't give your Honor an answer.
JUDGE NATHAN: I understand that. I don't think I was seeking that. Mr. Rohrbach, you just began by asking whether they intended to recall Jane. They don't know.
MR. ROHRBACH: Right.
JUDGE NATHAN: And whether they intend to call Brian, they don't know.
MR. ROHRBACH: Thank you, your Honor. The other issue the government wanted to just flag for the Court is there is a possibility that we'd get to victim 2 by the end of the day today, and I know the Court has --
JUDGE NATHAN: Yes, that's on my to-do list today, this morning, which is to give you my view of the limiting instruction, which I can do now. So we last talked about this at the November 23rd conference, and I think the defense agreed with the limiting instruction. The government had suggested changes, which I rejected, but I understood the government's position that it wasn't fully accurate as stated, and that's because of complications around New Mexico law, potentially. If we need to go into further issues that implicate 412, we can do sidebar, but I think for purposes of the limiting instruction, here's my thinking, and I may not need you to react immediately to it unless you want to, but you can consider it and think about it. I think an appropriate limiting instruction would be: "I anticipate that you'll hear testimony from the next witness about sexual conduct that she said she had with Mr. Epstein in New Mexico. I instruct you that the sexual conduct she says occurred with Mr.
Epstein in New Mexico was not, quote, illegal sexual activity, end quote, as the government has charged in the indictment. "I'll give you more instructions on the legal term, illegal sexual activity, at the end of the case. However, to the extent you conclude that her testimony is relevant to the issues before you, you may consider it, but you may not consider this testimony as any kind of reflection on Mr. Epstein's nor Ms. Maxwell's character or propensity to commit any of the crimes charged in the indictment." So I think that it's obviously a very different instruction with respect to Kate, because this is an alleged victim of the crimes charged in the indictment. This instruction avoids issues that were complicated regarding New Mexico law that I don't think is necessary to get into because it's not illegal sexual activity, as the government has charged in the indictment, which the government has indicated -- you agree with that, right Mr. Rohrbach?
MR. ROHRBACH: Yes, your Honor.
JUDGE NATHAN: So that's my view. You can react to it now or think about it.
MR. ROHRBACH: I would like to give it some thought, your Honor. We thank the Court for its thoughtfulness.
MS. MENNINGER: Same, your Honor. Thank you.
JUDGE NATHAN: Thank you.
MS. STERNHEIM: Your Honor, the government, I expect, will be calling, perhaps as its next witness, an individual named Janine Gill. My understanding is she is employed by some property company, either under the auspices or related to the Trump organization. She became an employee in 2007. The government is seeking to introduce two documents, they are Government Exhibit 824 and 823. I believe they will seek to introduce it in a redacted form. 823 is a personal action notice that indicates --
JUDGE NATHAN: Can I see them while we're talking about them?
MS. STERNHEIM: Sure. May I hand it up to you?
JUDGE NATHAN: Sure.
MS. STERNHEIM: I think I've given you one redacted and one not, but I can give you a whole --
JUDGE NATHAN: Okay.
MS. STERNHEIM: So this document concerns the start date of employment of an individual named Sky Roberts. It was not prepared by this individual and she has no personal knowledge as to how it was prepared.
JUDGE NATHAN: When you say it wasn't prepared by this individual, you mean by --
MS. STERNHEIM: Ms. Gill.
JUDGE NATHAN: By Janine Gill?
MS. STERNHEIM: Yes. She started her employment in 2007. This document concerns 2000. There is nothing in the record concerning an individual named Sky Roberts. The second document, 824, is a document concerning insurance for Sky Roberts that indicates his dependents, his wife, his son, and the daughter by the name of Virginia Roberts. That is not a proper business record. It has nothing to do with the operation of the Trump company or Mar-a-Lago. The relevance is extraordinarily remote as there is nothing to tie in the relationship or to suggest that Virginia Roberts was at Mar-a-Lago during the period of time that Juan Alessi claims to have seen her. There are no employment records for her and there is nothing in the record to suggest anything concerning her father.
JUDGE NATHAN: So is it a relevance objection?
MS. STERNHEIM: It's relevance as well as foundation as a business record.
JUDGE NATHAN: Okay.
MR. ROHRBACH: I suppose beginning with the relevance objection, your Honor. The relevance for these documents arises in three respects. First of all — and this is an initial matter — Sky Roberts, the evidence already in the case shows that there is a Virginia Roberts with a father named Sky Roberts, as shown on her birth certificate. So these documents are relevant to connect the Virginia Roberts in the birth certificate to a Virginia Roberts who was present in the area of Mar-a-Lago in the year 2000 which allows the jury to draw the inference that that is the Virginia Roberts who has been the subject of testimony by Carolyn and Juan Alessi and others. So these records both corroborate the fact that there was a Virginia Roberts with an association of Mar-a-Lago at the relevant time and corroborate and provide corroboration that that Virginia Roberts is the Virginia Roberts in the birth certificate, which relative to her age, to which is therefore relevant to the sex trafficking counts.
I'd also note that the phone number for Sky Roberts in these documents is the phone number for an entry in Government Exhibit 52 for -- that's listed as Virginia parents. So in the event that Government Exhibit 52 comes in, this is relevant to show that that entry, in fact, is the phone number for Virginia Roberts's parents. So those are the various three theories of relevance. In terms of admissibility under the business record exception, Ms. Gill, the witness, is a records custodian for Mar-a-Lago. So she will say that personal action notices are created in the ordinary course of business by managers at Mar-a-Lago at the time an employee is hired and that once an employee is eligible for benefits at Mar-a-Lago, those employees fill out the benefit application form in Government Exhibit 824 and submit them to Mar-a-Lago, which processes them, sends them out to insurance companies and retains them for Mar-a-Lago's own business purposes.
JUDGE NATHAN: And these were records that were maintained at Mar-a-Lago?
MR. ROHRBACH: Yes, your Honor. I expect Ms. Gill to say that she has looked at these records in Mar-a-Lago's personnel file and confirms that they are true and accurate copies.
MS. STERNHEIM: Judge, the fact that somebody fills out a request for insurance does not deem it a business record. It is not related to the course of business of the Mar-a-Lago property, and the government is trying, through a backdoor method, to draw an inference that because a person named Virginia Roberts was insured by a man named Sky Roberts, that she was, one, employed by Mar-a-Lago or, two, was at Mar-a-Lago. Insurance does not support that.
JUDGE NATHAN: Nothing in these records appears support that she was employed at Mar-a-Lago.
MR. ROHRBACH: The government agrees, your Honor, these records don't give rise to that.
JUDGE NATHAN: But you're trying to show that?
MR. ROHRBACH: That she was the dependent of a Mar-a-Lago employee. On the insurance point, I would note that Sky Roberts was not an outsider to Mar-a-Lago at the time he filled out the employee benefits forms. He was an employee of Mar-a-Lago, and one of the things Mar-a-Lago does is provide benefits to its employees.
JUDGE NATHAN: And then on the business records, your argument, Ms. Sternheim, is that because it's a form filled out by Mar-a-Lago employees for the purposes of insurance that's provided by another entity, that they're not a Mar-a-Lago business record?
MS. STERNHEIM: That is correct, Judge.
JUDGE NATHAN: Mr. Rohrbach.
MR. ROHRBACH: I wasn't planning to ask Ms. Gill this, but I think she would say that Mar-a-Lago retains these records in case there is some kind of dispute involving the insurance company and its employees. But Mar-a-Lago does retain these records because, in order to hire, retain, and protect its employees, they presumably make sure they're offered insurance. And I'll just note, your Honor, that the exhibit and Government Exhibit 824 are not just the benefit application forms, but fax transmittal cover sheets from Mar-a-Lago which indicates that Mar-a-Lago is doing the work of processing and sending out these applications.
MS. STERNHEIM: But it still contains hearsay information, the source of which we do not know. It is not part of the business of Mar-a-Lago, even though it does have employees and may offer it insurance, the fact that it is kept in their files does not deem it a business record.
JUDGE NATHAN: I think I'll have to hear the testimony, the foundation for the business record to determine whether it's sufficient under the rule. Do you have any authority, Ms. Sternheim? I would say, just intuitively, I would think that employers who provide insurance to employees who have a set of forms that they maintain in the normal course of business that captures information for purposes of the employer providing the insurance through another entity and maintains those records and the like, my intuitive reaction is those probably fit within the business records exception depending on some of the specifics of the testimony, but I'll look at the question and if anybody has any authority for the proposition either way, and my team will look at it in the meantime.
MR. ROHRBACH: Thank you, your Honor.
JUDGE NATHAN: Anything else?
MR. EVERDELL: Your Honor, there is an issue, we haven't had the chance to confer with government --
JUDGE NATHAN: I don't think your mic is on.
MR. EVERDELL: There is a small issue with the fourth witness, I think that's Mr. Rogers, but we haven't had the chance to confer yet. I think we can do it fairly quickly. We can probably do it at the break since it's probably going to be the fourth witness; is that right? We'll do it then.
JUDGE NATHAN: Anything else to take up in the immediate?
MR. ROHRBACH: Nothing from the government.
JUDGE NATHAN: Anything else from the defense?
MR. EVERDELL: No, your Honor.
JUDGE NATHAN: We'll break until we have our jury. Thank you. Ms. Sternheim do you need these back, 823 and 824?
MS. STERNHEIM: I believe the government is putting those in evidence; is that correct? Are you going to be moving those into evidence?
JUDGE NATHAN: 823 and 824.
MR. ROHRBACH: Yes, I am.
MS. STERNHEIM: You can hold onto them if you would like. I imagine they'll be putting them on the screen.
JUDGE NATHAN: I'll keep them for now then. Thank you.
(Recess)
JUDGE NATHAN: We have one juror who had a substantial train issue and had to back up and revert, who called worried that they were late and we said just get here safely. So we're not quite ready with all the jurors yet. Mr. Rohrbach, you know that case, United States v. Lieberman?
MR. ROHRBACH: I am not familiar with that case, your Honor.
JUDGE NATHAN: It's pretty much directly on point, I think, for Ms. Sternheim's argument regarding the content of 823 and 824. Let me give you the cite. It is United States v. Lieberman, 637 F.2d 95 (2d Cir. 1980). Do you have any reason to think that the witness would testify that the employer does anything to verify the information filled out by the employee on the insurance cards?
MR. ROHRBACH: First of all, for 823, your Honor, that's a document created by managers at Mar-a-Lago and not the employee.
JUDGE NATHAN: I think, probably, 823 comes in, depending on the business record foundation, which essentially provides -- right. So this is a personnel form of Mar-a-Lago that your witness will testify they maintained in their records of employees?
MR. ROHRBACH: Yes, your Honor.
JUDGE NATHAN: So that, I think, you're right. Ms. Sternheim, do you have an objection to 823?
MS. STERNHEIM: No.
JUDGE NATHAN: 824, I think that Ms. Sternheim is right, that the information filled out by the employee, which you're seeking to assert for the truth, essentially that Virginia Roberts was his daughter, as I understand it.
MR. ROHRBACH: Yes, your Honor.
JUDGE NATHAN: It would be hearsay unless there is testimony -- under the Lieberman case, unless there is testimony that the employer does something to verify the information.
MR. ROHRBACH: I've never asked that question of Ms. Gill, your Honor. I'm happy to do so while we're waiting for the remaining juror. I would imagine she would say that Mar-a-Lago provides benefits to the daughter as a dependent of Mr. Roberts. So in the sense that they are, in fact, providing insurance benefits to her, they have verified that information.
JUDGE NATHAN: Well, it's a bit circular. I think the question is, did they do anything to verify the information on the form. The fact that they provided -- that they sent this form and then insurance was provided based on the employee's information, that's the out-of-court statement. It's Mr. Roberts' statement on this form that you're seeking to offer for the truth. So unless there is -- you'll look at the Lieberman case. I think it's directly on point, as I said.
MR. ROHRBACH: I'm happy to look at the case and also ask Ms. Gill, your Honor. My point is, I think it's more than just sending the form and then obtaining insurance for someone because their name is on the form, but it's the course of conduct of paying bills for someone who then receives medical treatment because that person is insured through Mar-a-Lago.
JUDGE NATHAN: Well, if she's got information on this employee with respect to that or records, I suppose that's another story.
MR. ROHRBACH: I think those records do exist, but I'll just go have a conversation with Ms. Gill about this.
JUDGE NATHAN: Ms. Sternheim.
MS. STERNHEIM: Judge, the government would be asking this witness about a practice that preceded the time period in which she was there. And the fact of the matter is, requesting insurance or accepting the offer of insurance in and of itself may be a perk of the business, but putting on the form who you wish to be insured as your family is hearsay.
JUDGE NATHAN: Agreed.
MS. STERNHEIM: So the form itself is one thing, the content is something else.
JUDGE NATHAN: I agree.
MS. STERNHEIM: Thank you.
JUDGE NATHAN: I think the only potential for -- and you'll look at the Lieberman case, too, is if there is testimony that the employer did something to verify the information on the form. So, for example, if the form says this is my address and the testimony is that when an employee fills out this form, we look at their driver's license to verify that the address is the same, then, as a business, I think, under Lieberman, that comes in. It would have to be something comparable for verification of children -- I think it's children and spouse?
MS. STERNHEIM: Correct.
JUDGE NATHAN: In order for this to fit for the content of the form. It's content versus the form itself. It's precisely the line that the circuit draws in Lieberman.
MS. STERNHEIM: But in addition, Judge, this witness does not have any personal knowledge as to what the procedures were seven years prior to her becoming employed.
JUDGE NATHAN: That may or may not be true depending on the testimony.
MS. STERNHEIM: Well, it would be hearsay as to her knowledge, having gained it from somebody remotely in the company providing that to her.
JUDGE NATHAN: So if her testimony is, this is the practice and this was the longstanding practice, I learned it from predecessors or the like, she might have -- just as her understanding of the practice of maintaining records is what she learned in the course of her employment, it may be -- I'm doubtful that we'll get this testimony. We'll see what the testimony is. My current thinking is 823 comes in. That gives -- I mean, what I understand the relevance to be -- and there is no objection to 823. 824, absent the content, I'm not sure gets you anything beyond what 823 gets you.
MR. ROHRBACH: I think that's right, your Honor. If 824 could not come in with the content, we probably would not offer 824. I would like to just have this conversation with Ms. Gill, as she's been the head of HR for Mar-a-Lago for quite a long time. She's reviewed this particular employment file, which is much larger than this set of records. So I think she may have a great well more to say about these issues and we would like to be able to talk with her.
JUDGE NATHAN: I think we're on the same page in terms of the law and in terms of what is the factual record with respect to the employer's practice at the time of their filing any information provided by employees.
MS. STERNHEIM: Thank you.
MS. MENNINGER: Your Honor, may I briefly address something?
JUDGE NATHAN: Sure.
MS. MENNINGER: Government Exhibit 761 was offered, it was a Professional Children's School application for Jane. I elicited testimony from the offer award that he did not verify the information pertaining, for example, to the financial guarantor, and I objected to the admission of that for the same reasons your Honor is articulating for Lieberman.
JUDGE NATHAN: So I overruled that objection because, what seemed to me, the relevance was that the witness or her family was indicating that Mr. Epstein was providing financial assistance at the time, whether or not he was providing financial assistance at the time.
MR. ROHRBACH: I would also note, your Honor, that in addition to the verification line of business records cases, there is another line of cases of adoptive business records which say that if a company receives a record created by an outsider and integrates it into their files and relies on it, it becomes a record of that business. I haven't so far articulated a theory like that with regard to this record, but the testimony for Government Exhibit 761 was that the school received the record, integrated it into its files, and relied on it for its admissions decisions, which are a regular function and practice of the school. So it would come in as a business record under that line of cases.
MS. MENNINGER: Your Honor, they didn't rely on the financial guarantor piece of it, which is what the government is offering for the truth of the matter asserted therein, and that's the piece that we object to. If they want to redact that piece, I would renew my objection to the admission of that and take out the piece that they're offering that was not verified by the school --
JUDGE NATHAN: I'm telling you my rationale at the time for ruling on the objection was that -- the relevance was that the family at the time was indicating that -- whether it's true or not, but that Mr. Epstein was providing financial assistance.
MS. MENNINGER: If it was admitted for a limited purpose then, your Honor, I would ask that there be some type of instruction given -- we can take up at the charging conference about the purposes for which that document can be considered by the jury.
MS. STERNHEIM: Judge, I just want to make sure that the Court is aware, whereas I don't object to the admission as a business record, I still maintain my objection to 823 on relevance grounds.
JUDGE NATHAN: So on that, I think I'm prepared to overrule because we have in evidence -- so there is testimony that Ms. Maxwell met Ms. Roberts at Mar-a-Lago in this timeframe. We have a birth certificate of Ms. Roberts that shows her father's name is Sky Roberts. So the relevance, as I understand it, is that the employment of Mr. Roberts at Mar-a-Lago at the timeframe is relevant, is probative of the family's connection to Mar-a-Lago at the timeframe testified to by Mr. Alessi. Do I have the theory of relevance?
MR. ROHRBACH: That's right, your Honor, as well as the conditional relevance theory that the phone number in Government Exhibit 823 appears in Government Exhibit 52 as Virginia's parents. If that exhibit were to come in, this record would become relevant for that additional reason.
JUDGE NATHAN: What case do you have in mind for the adaptive business record?
MR. ROHRBACH: We'd be happy to provide the case name and cite after the break. I don't want to butcher the name of the case and leave the Court astray. We'll be happy to provide it to the Court's law clerk, as well. I do have a particular case in mind.
JUDGE NATHAN: You have a case in mind, but you're not sure?
MR. ROHRBACH: It's in the matter of -- it starts with an L. I can't give the cite off the top of my head. I wasn't expecting this particular argument today.
JUDGE NATHAN: If that theory applies for the content of 824, I'll consider it, so you'll let me know.
MR. ROHRBACH: Yes, your Honor. I just haven't asked Ms. Gill about their reliance on this record, which is similar to the questions the Court has been asking for, so I couldn't articulate that theory of a business record for 824 right now.
JUDGE NATHAN: Right. Sounds like a similar --
MS. STERNHEIM: Just to close the loop, with regard to the Court's statement that it was a relevant time period, it's my recollection that Mr. Alessi testified to 2001, and the fact that someone may be employed is not a basis for an inference that a child of that employee was at a certain location at a certain time, which is why the government is seeking to introduce that.
JUDGE NATHAN: We'll leave the fact finding to the jury.
MS. STERNHEIM: Okay.
JUDGE NATHAN: Thank you.
MR. ROHRBACH: Thank you, your Honor.
JUDGE NATHAN: Anything else? We'll still have to wait for our juror who had substantial train issues. So we will wait. I'll step down. Thank you. I had a question. You indicated, Mr. Rohrbach, something regarding Exhibit 52. Is there another witness who's going to testify about Exhibit 52?
MS. COMEY: No.
MR. ROHRBACH: No, your Honor. We plan to submit a letter tonight in articulating our theory why the Court should admit that exhibit based on the current evidence.
JUDGE NATHAN: You'll confer with defense counsel. Obviously, I reserved based on the representation there would be additional testimony.
MR. ROHRBACH: Yes, your Honor.
JUDGE NATHAN: Thank you.
(Recess)
(Continued on next page)
JUDGE NATHAN: Okay. Mr. Rohrbach.
MR. ROHRBACH: Your Honor, I have interviewed Ms. Gill. I think she would likely say that the Mar-a-Lago does not make independent efforts to verify information on these forms. I've also been reading United States v. Lieberman. I do think this case is distinguishable. The case is about an outsider to the hotel filling out a form or -- the case said it wouldn't matter if the employee filled it out themselves. Verification is important there because they are just taking the information of the outsider at their word. Here, Mr. Roberts was an employee of Mar-a-Lago; so he had a business duty not to lie to his own employer. So he's not an outsider in the traditional sense the way that United States v. Lieberman and cases like it are talking about. It would have been a violation of his duty, a fireable offense, presumably, by Mar-a-Lago if he had lied to them about the names of his dependents and obtained for them insurance coverage.
JUDGE NATHAN: I'm not persuaded that that distinguishes a binding precedent. It's a point of distinction, but it doesn't show verification. Do you have authority for beyond verification, some obligation to fill it out truthfully or the like? In fact, there's no -- I'm not aware of any obligation of employees to fill it out truthfully other than the fact that they could get fired if they don't.
MR. ROHRBACH: I think that would be the source of the obligation is that they would be a fireable offense against the company to be fraudulently obtaining insurance benefits for someone. But if the Court is not persuaded --
JUDGE NATHAN: I don't always find a case on point. You're right, there's a basis to distinguish, but it's pretty directly on point; so I think it shows it would be hearsay in the absence of some verification or some nontruth basis for which you're offering.
MR. ROHRBACH: Then I think the government will just offer the other exhibit, your Honor.
JUDGE NATHAN: Okay. 823.
MR. ROHRBACH: 823.
JUDGE NATHAN: To the extent there was a relevance objection, I'll overrule the relevance objection.
MS. STERNHEIM: Your Honor, may I state it for the record even though I know you're ruling?
JUDGE NATHAN: I'm sorry?
MS. STERNHEIM: I would like to state it for the -- in front of the jury.
JUDGE NATHAN: Oh, yes, you can object and I'll overrule.
MS. STERNHEIM: Okay.
JUDGE NATHAN: That's fine.
MR. ROHRBACH: Your Honor, the case I mentioned earlier is Matter of Ollag Construction Equipment, 665 F.2d 43, which is a case and its progeny that stand for the proposition that when records are integrated and relied on by a company, that that makes it a business record. We're not going to assert that with regard to the object here, at issue here; but for the purposes of 761, that's the case I had in mind.
(Jury present)
JUDGE NATHAN: Good morning. Please be seated. Good morning, everyone. Thank you so much. I know there was some train issues this morning. Not a problem. Gave us some time to talk through issues as well. So thank you so much, everyone, for your diligence. I appreciate it. Mr. Rohrbach, the government may call its next witness.
MR. ROHRBACH: The government calls Janine Gill.
JUDGE NATHAN: Janine Gill may come forward. JANINE GILL VELEZ, called as a witness by the Government, having been duly sworn, testified as follows:
JUDGE NATHAN: Thank you. Mr. Rohrbach, you may inquire.