Summary-Witness and Glassman Subpoena Hearings
109 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 9, 2021 9:00 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: All right. Matters to take up.
MS. COMEY: There were just a couple issues that we wanted to put on the record, your Honor. First, I've conferred with defense counsel, and they have indicated that they are releasing Carolyn from recall. So I understand that any sequestration order no longer applies to her.
MR. PAGLIUCA: That's correct, your Honor.
JUDGE NATHAN: All right. Thank you.
MS. COMEY: And then I also conferred with defense counsel about Kimberly Meder and whether she would be permitted to be in the courtroom for the remainder of trial. I'm told by defense counsel that they have no objection; though, of course, they may end up seeking to recall her in the defense case, but that they have no objection to her being in the courtroom.
MR. EVERDELL: That's correct, your Honor.
JUDGE NATHAN: Okay.
MS. COMEY: And then with respect to redacted 296, which was the video of the Palm Beach residence, defense counsel has been reviewing the redacted version that we sent them on Tuesday. Once they have their position on its admissibility, we will formally offer it.
MR. PAGLIUCA: Also correct, your Honor.
JUDGE NATHAN: Great. Okay. Thank you.
MR. EVERDELL: Just a few procedural things from the defense. I believe the next witness from the government is going to be Tracy Chapell from Federal Express. And I have some documents I can hand up to the Court. I have one exhibit that I intend to introduce through Ms. Chapel which I've given to the government; I can give the Court a copy. It's going to be done in paper. These are Federal Express invoices. I'm going to offer them -- assuming they are allowed to be admitted, I will offer them under temporary seal because we haven't had the chance to go through and do all the redactions. But we will do that as soon as we can and get the Court a redacted copy so that that could be published publicly. But for the moment, we'll have to do this under seal.
JUDGE NATHAN: Is there going to be a lot of walking the witness through the document?
MR. EVERDELL: No. Actually I'm just going to admit them; no walking through, it's going to be for the jury's eyes if they want to see it.
JUDGE NATHAN: Okay. And so a redacted version for the public by when?
MR. EVERDELL: If we could do it over the weekend, because there's a decent number of records, and have them ready by Monday, we could do that.
JUDGE NATHAN: Okay. Thank you.
MR. EVERDELL: I have a copy which I can hand up to the Court now.
JUDGE NATHAN: Sure. Thank you.
MR. EVERDELL: Your Honor, on that same score, we'd like to be able to put folders under the jurors' chairs with that exhibit in them that they would only be asked to open if it's admitted.
MS. COMEY: No objection, your Honor.
JUDGE NATHAN: Okay. Thank you.
MR. EVERDELL: I will take care of that. Thank you, your Honor.
MS. MENNINGER: Good morning, your Honor.
JUDGE NATHAN: Good morning, Ms. Menninger.
MS. MENNINGER: A couple of issues. I've conferred with the government, and I believe we have agreement. I would like to just put them on the record prior to the testimony of Annie Farmer. She is not testifying anonymously, your Honor. Therefore, my plan is to use the counsel screen as one normally would in these situations, rather than so much of the paper. But we have binders in the event someone wants to look at the whole set, for the Court, the government for any impeachment materials, and for the witness.
JUDGE NATHAN: Correct to assume that none of the documents you'll show her have the full or real names of the other witnesses testifying under pseudonym?
MS. MENNINGER: Right, your Honor. I don't think they had any interaction with one another. I don't believe there's anything in here that references anyone else.
JUDGE NATHAN: Okay.
MS. MENNINGER: Your Honor, there is a substantial amount of hearsay, both within the record and also in the public domain as between Annie Farmer and her sister Maria Farmer. I've conferred with the government that there won't be hearsay being offered from Maria Farmer, with the exception of at least one place I know where it's in effect on the listener that Annie traveled to New York because her sister told her to come there. But outside of that, we have agreed that we're not having -- there's no other hearsay exception that applies to Maria Farmer's statements. Within that subset, your Honor, there has been a contention by Maria Farmer that nude photographs or provocative photographs were stolen from her. None were found when Mr. Epstein's home was searched. That, again, would be hearsay from Maria and is not planning to be a part of the government's case or the defense's cross. And lastly, your Honor, because Ms. Farmer is herself a practicing therapist, psychologist, she has made a number of statements publicly about her opinions on the topic of grooming. As she was not endorsed, obviously, under 702, I expect that she will not use that word or give anything that sounds like an opinion along those lines. She's here as a fact witness, your Honor. And the government has agreed they don't intend to offer any opinion testimony from her.
JUDGE NATHAN: Great. Thank you.
MS. POMERANTZ: That all sounds accurate, your Honor.
JUDGE NATHAN: Thank you, Ms. Pomerantz. What else to take up?
MR. PAGLIUCA: Your Honor, if I might, I don't know if the Court wants to take this up now, but I'll just give this as a preview for later. The government has endorsed Mr. Buscemi as a, as I understand it, summary witness. This is a 1006 issue. As I understand it, I don't believe that this is an appropriate summary witness under 1006. As I understand it, the purpose is to talk about testimony or pieces of evidence that have been admitted, specifically not to analyze any complex records or other business transactions or phone records or things like that. So I just wanted to give the Court a heads-up on that. I'm not exactly sure precisely what he's being offered to testify about, but I expect that there will be an objection to that testimony before it happens.
JUDGE NATHAN: Who will I hear from?
MS. MOE: Yes, your Honor. As we explained to the defense this morning, we anticipate calling Special Agent Michael Buscemi as a summary witness, as is common in this district. His testimony will be limited to his analysis of exhibits; he won't be analyzing testimony of other witnesses. There are a number of exhibits in this case which have not yet been published or reviewed during the course of this case; and so we anticipate fairly brief testimony from Special Agent Buscemi about his review of several exhibits. In short, the testimony will concern, among other things, the message pads, the majority of which have not been published or viewed by the jury at this point. And the purpose of the testimony is to connect up several exhibits and review them in a way to make those exhibits clear to the jury and publish them to show, for example, the continuity of certain phone numbers and names, where they change over time, where they are in the message books in order to make that clear for the jury. I anticipate that the testimony from Special Agent Buscemi would be likely something like 15 to 20 minutes, maybe slightly more, again, just talking about exhibits and the similarity of phone numbers and names between a variety of different exhibits. That's the scope of his testimony. Our view is that's consistent with the way summary witnesses are called in many trials in this district and doesn't exceed the scope of the ordinary practice.
JUDGE NATHAN: Let's take the specific example that you've given on message pads. So just give me an example of the kind of testimony he would provide there.
MS. MOE: Yes, your Honor. So, for example, within the message pads, we published yesterday, I think, just either two or three specific messages that had a first and last name of someone and a phone number. But elsewhere throughout the message pads, there appear entries that only have a first name, and sometimes that entry is, for example, Carolyn and sometimes it's Caroline. But when you compare the phone numbers -- and there are a variety of different phone numbers throughout the book -- it becomes clear that Caroline is the same Carolyn, first and last name, as some of the other messages, because there's continuity between the phone numbers. And there are a variety of different phone numbers throughout the exhibits with different names like Carolyn, Caroline, and Carolyn with a last name. And reviewing them and analyzing them makes it clear throughout the books and across a variety of different dates that we're talking about the same person. And so that facilitates both publishing the exhibits so that the jury can see them for the first time, and doing that in a way that sort of connects up those different exhibits. And so that's the purpose of that testimony.
JUDGE NATHAN: Let's take that example, Mr. Pagliuca.
MR. PAGLIUCA: Your Honor, the problem, I think, is that it is simply highlighting a specific piece of evidence; that this is summation, essentially, and not witness testimony. The witness has no personal knowledge of the phone calls. The witness is simply comparing this to that, which is what should be done in summation or should have been done with the witness who actually was the testifying witness with the exhibit. So this could have been done, you know, with Ms. Hesse, for example. You have that message pad? Yes. Compare that message pad with this particular record. Are those the same phone numbers? I suppose that could happen. Or with Carolyn, could have been asked, Is that your phone number? Does that match the record? This is simply an FBI agent who's going to take those pieces of evidence selectively and then talk about them; this matches this, this matches that. I don't believe that's appropriate under 1006, which is, you know, the rule that allows for summary exhibits, for example, but does not allow for summary testimony of things that have already been admitted into evidence. Certainly in the government's closing argument they can do this and they can make whatever arguments they want. But this is simply a closing argument through a summary witness in the middle of a trial before a very long break, and I just don't think it's appropriate under these circumstances.
JUDGE NATHAN: This agent, what was his role in the investigation?
MS. MOE: Your Honor, this agent's role was limited to analyzing these records in preparation for trial. Your Honor, in particular because these exhibits contain identifying phone numbers and names, we feel more comfortable publishing these exhibits with an agent, as opposed to asking lay witnesses to review government exhibits for us in order to facilitate that testimony. Our preference is to publish this with an agent to do this carefully and thoughtfully so that we're able to publish the exhibits before the jury without exposing any identifying information. It's very streamlined testimony, your Honor. We're talking about exhibits the jury hasn't yet seen that haven't been published. It's not duplicative of anything that's already happened at the trial. And in particular, because closings will be maybe as long as two weeks from now, we think the jury should see these exhibits now; they have not yet been published.
JUDGE NATHAN: That's a little bit of the problem. Typically, in my experience, the summary agent witness is the agent who talks about what he did in the investigation, and that helps draw out complicated document comparators and the like, not somebody who's just effectively doing a mini closing.
MS. MOE: Your Honor, we often call summary witnesses who are not involved in the investigation who are just talking about their analysis of records. The purpose here isn't to have the summary witness talk through the investigation or investigative steps, but to talk about a review of exhibits. And I have called agents to do just that.
JUDGE NATHAN: But for the purposes of doing what 1006 permits, that's not what this is. I've seen it in two contexts: One, 1006 you've got a complicated, extensive set of records that are being summarized via a witness. And then you've got investigative summary witnesses who talk through factually what they did in a sense. And you're not doing either of those; you're providing essentially a closing argument or mini closing argument via a witness who has no personal involvement in the investigation and doing so, sounds like, with materials that don't require the type of 1006 summary. So you've created, I think, a little bit of a hybrid of certainly what I've seen those two exemplars, for them to be used. And so it just does sound like argument, summation, and the kind of thing that -- I mean, it's certainly true you could have done it with the witnesses. At some point I might have said, Save it for summation, counsel. But I can't say I've ever seen a version like this.
MS. MOE: Yes, your Honor. I have in trials in this district called summary witnesses who helped publish and connect up facts across exhibits without creating summary charts under Rule 1006. I think this testimony --
JUDGE NATHAN: You're not offering him under 1006?
JUDGE NATHAN: And he isn't involved in the investigation.
MS. MOE: That's correct, your Honor. We'd just like an opportunity to publish these exhibits in a way that facilitates the jury seeing them without doing this through lay witnesses where there are complications about reading things out loud, so that it's streamlined and efficient so the jury can see the evidence that's been admitted. We think that's appropriate.
JUDGE NATHAN: Why not just do it in closing?
MS. MOE: Your Honor, I think to rest our case and have the jury not see some of the evidence in this case, our preference would be --
JUDGE NATHAN: The one thing I've seen that it sounds like you're saying is actually not with a witness, but a bunch of documents come in, and then the government spends a little bit of time just publishing, publish this and publish that. Again, I've never seen -- never seen -- an agent, a law enforcement agent, who had no involvement in the investigation of the case and who isn't providing testimony essentially pursuant to 1006.
MS. MOE: Your Honor, if the Court's preference is for us to, without a person on the stand, just ask the jury to turn from one exhibit to another to another, we can do that. I think that is slightly more awkward than facilitating that through a witness and pointing out the connections between two things.
JUDGE NATHAN: Right. But the witness is providing testimony over which they have no personal knowledge. You're simply asking them to do the work of the government in the closing. So, Mr. Pagliuca, do you have any objection to the government publishing a few documents, going to a few points, and then we move on, without a witness?
MR. PAGLIUCA: I don't understand that process, I guess, your Honor. We're simply going to -- is this with a witness or without a witness?
JUDGE NATHAN: Without a witness.
MR. PAGLIUCA: We're simply going to say, The government would like the jury to look at this and then look at that?
JUDGE NATHAN: Yes.
MR. PAGLIUCA: I do object to that process, your Honor. This is classically what someone would do in a closing argument. You can put this in a Power Point and put up a screen that shows this, and then put up a screen that shows that, and then make an argument about it. And if they wanted to elicit this testimony, it should have been done, I believe, with a witness that then could be cross-examined substantively about what was being discussed. This witness, Mr. -- if I'm saying it correctly, Mr. Buscemi, can't be cross-examined substantively about anything; all he's going to be able to say would be, I looked at this, and I looked at that, and I looked at this, I looked at that, and those are the exhibits. So I guess I'm a little confused about the process, where one would just look at a jury and say, Look at this and then look at that. And I don't understand why that isn't, sort of, impermissibly highlighting certain pieces of evidence. And then, you know, am I allowed to get up and say, Why don't you look at this and why don't you look at that? It just seems rather awkward to me to be doing it in that fashion.
MS. MOE: Your Honor, that's why we propose doing this with a witness, to avoid any, sort of, awkwardness. But I don't understand the objection to publishing items that are in evidence that the jury has not yet seen. Again, our hope was for this to be very streamlined; but I understand the Court's concerns.
JUDGE NATHAN: Right. It's a streamlined version of the closing argument. And again, I'm not aware -- I'm not aware -- certainly seen summary with investigative officers. That's not this. And I've seen officers who are analyzing complicated data under 1006 provide that to the jury. That's not this. And I've seen, when the evidence comes in, the government spend a fair amount of time -- as you've done with some exhibits -- going through piece by piece in order to highlight and draw certain connections. I'm not going to let you do it through a witness who has no personal experience. I think you do it in closing. That's what this is, it's closing argument.
JUDGE NATHAN: Okay. What else?
MR. PAGLIUCA: I think the only open issue that I'm aware of, your Honor, is the Exhibit 52 issue.
JUDGE NATHAN: Yes. I got the briefing at 9:45, so 15 minutes early finished, I appreciate it. And I am still dotting my i's and crossing my t's. I think we don't need it till the government is prepared to rest; is that right?
MS. COMEY: That's correct, your Honor.
JUDGE NATHAN: You agree with that?
MR. PAGLIUCA: Yes, your Honor.
JUDGE NATHAN: Anything else to take up now?
MR. PAGLIUCA: Not from the defense, your Honor.
JUDGE NATHAN: On scheduling, needless to say, I didn't send you a draft of the charge last night. I think my thinking is if the government rests today or tomorrow, which sounds like what we anticipate, I'll use the remainder of tomorrow, one, to hear the defense motions; and two, for me to work on the charge on my own, having already received your drafts. And then I'll send it to you at some point in advance of a charging conference, which we'll do next week. And again, I'm open to you telling me whether you want to do it in the evenings after testimony or on Saturday. I think really the analysis there depends on what the defense now anticipates as the length of its case. So are you in a position to give any additional estimate as to that?
MR. PAGLIUCA: We don't, your Honor. I think we're hoping to take this evening and tomorrow to put those pieces together, and then provide the Court and the government with that analysis.
JUDGE NATHAN: Okay. Ms. Sternheim.
MS. STERNHEIM: May I just say, I think it is our thinking at the moment that if we are going to be using the trial days, that our preference would be to Saturday for a charge conference. It seems that it would just be a more focused time.
JUDGE NATHAN: I think really the only reason not to do that -- and, as I said, I wanted to have agreement from both sides on it. But the reason not to do that would be if we might get to closings before the following Monday. And that's why it's really -- because if we will get to closings before the following Monday, the charge needs to be done before then.
MS. STERNHEIM: Of course. And we will update the government and the Court with regard to scheduling.
JUDGE NATHAN: Okay. So I think if there's a chance that the defense either won't put on a case or would rest before Friday, then we should do the charge conference Thursday night. So that's the question.
MR. PAGLIUCA: Understood, your Honor.
JUDGE NATHAN: Okay. Does the government have any preference or views on that?
MR. ROHRBACH: The government has no preference. That makes sense to us. Thank you, your Honor.
JUDGE NATHAN: Okay. Great. Yes.
MS. COMEY: Your Honor, in connection with the defense case, I do think there's still the outstanding issue of the subpoena to Mr. Glassman.
JUDGE NATHAN: Yes. I was looking at that last night as well. And I have a question and a little bit of a proposal, see if we can get back to a magical moment. It's a difficult issue and it's close, I'll admit, based on where I am now. I think it's close. But what I'm wondering is if what the defense essentially needs to make the arguments it wants to make is testimony from Mr. Glassman that he told the government that he told Jane that some form of cooperation or testimony would help her case. That question might have some evidentiary issues, but it's not an attorney-client privilege issue. I think the answer to that question basically gets the defense what it's looking for without infringing on attorney-client privilege. And so I'd like you to consider a proposal in which the testimony that you're seeking is limited to that and, depending on the parties' views and Mr. Glassman's views, if that is the limit of the testimony, whether it could be through stipulation. So you'll consider that.
MS. COMEY: Yes, your Honor.
MR. PAGLIUCA: We will, your Honor.
JUDGE NATHAN: Okay. All right. Anything else I can take up? We're checking on our jurors.
MR. EVERDELL: Nothing from the defense, your Honor.
JUDGE NATHAN: I'm sorry. So you put in the letters to me last night on 52. You'll docket those today?
MR. ROHRBACH: Yes, your Honor. The government has a few proposed redactions to its letter; so we will propose those redactions and docket a version that implements those redactions subject to the Court's ruling on them.
JUDGE NATHAN: Okay. Remember, my basic view is get it on the docket and then propose your redactions so that I'm not -- put it on the docket with your proposed redactions and I'll let you know if it should be redacted less.
MR. ROHRBACH: Yes, your Honor. And we will do that today.
JUDGE NATHAN: Okay. And same for -- I think you were just waiting to see if the government had proposed redactions, is that --
MR. PAGLIUCA: That's correct, your Honor. I think we can mirror the government's redactions. I have to just think about whether the Exhibit A, I think it was, that was attached and then responded to, I think we need to think about how that gets redacted. And I think likely my view would be the entirety of it gets redacted.
JUDGE NATHAN: Okay. I will consider that. Anything else?
MR. ROHRBACH: Nothing from the government.
MR. EVERDELL: No, your Honor.
JUDGE NATHAN: All right. We're missing a couple jurors, but I suspect they'll be here soon. We'll take a break and start as soon as they're here. Thank you.
(Recess)
JUDGE NATHAN: Anything to take up before we bring in the jury?
MR. ROHRBACH: Nothing from the government, your Honor.
MR. EVERDELL: Nothing from the defense, your Honor.
JUDGE NATHAN: Okay. We'll bring in the jury please.
(Jury present)
JUDGE NATHAN: Good morning, members of the jury. Hope you had a good of evening. Thank you again for your continued diligence, punctuality, and patience. Mr. Rohrbach, the government may call its next witness.
MR. ROHRBACH: The government calls Tracy Chapell.
JUDGE NATHAN: Tracy Chapell may come forward. TRACY CHAPELL, called as a witness by the Government, having been duly sworn, testified as follows:
JUDGE NATHAN: Thank you, Ms. Chapell. Mr. Rohrbach, you may inquire.