1.Juror Service, Motion Timing, Sealed Robing-Room Proceeding and Juror Replacement
68 lines(In open court; jury not present.)
THE COURT: Please be seated in the gallery.
(Defendant enters 9:35 a.m.)
COURT CLERK: Case on trial.
Counsel, state your appearances, please.
MS. PENZA: Good morning, Your Honor. Moira Penza, Tanya Hajjar, and Mark Lesko for the United States. Also at counsel table is Special Agent Michael Weniger from the FBI and Paralegal Specialist Teri Carby.
THE COURT: Good morning.
MR. AGNIFILO: Good morning, Your Honor. Marc Agnifilo, Teny Geragos, Paul Der Ohannesian, Danielle Smith for Keith Raniere who is with us.
THE COURT: Very well.
Sidebar.
(Sidebar conference.)
THE COURT: We have two juror issues. The first juror issue is that Alternate No. 4 advised Mr. Reccoppa that she's taking three summer courses at Queensborough Community College and she provided a fee card that she paid yesterday for these courses. She's not a matriculated student. These are nondegree courses. Before I talk to her about her educational pursuits, I thought I would talk to the parties. I plan to tell her, unless you object, that she's obligated to be a juror in this case, she can't sign up for courses after she is told that she's a possible juror and after she's told that she'd been selected as a juror.
Is there any objection to that?
MR. AGNIFILO: No. I think that's right.
MS. PENZA: We agree.
THE COURT: Okay.
Next, we have Juror No. 9. There's no note, but what did Juror No. 9 tell you?
COURT CLERK: That his wife is -- gave him a hard time, he can't serve, he's -- mentally, he can't think about this case anymore. He thought he could serve when he did the interview, but he can't do it any longer, he's under a lot of pressure at home.
MR. AGNIFILO: "The wife is giving me a hard time" excuse --
COURT CLERK: At home.
MR. AGNIFILO: Yes?
MS. PENZA: I'm sorry, I just can't -- I have been thinking about their old juror numbers and I'm just having trouble picturing exactly --
THE COURT: What juror number is that?
COURT CLERK: Nine is 57.
MS. PENZA: Off the top of my head --
MR. AGNIFILO: It's not the Ramadan juror. We'll get our notes.
MS. PENZA: If we can review our notes --
MR. AGNIFILO: Yeah, yeah.
Juror No. 9, I can't picture him, though.
THE COURT: Well, let me cut to the chase here. I can bring the juror in, he can tell me his story, and then I can say, well, we're going to get started and at the end of the day, you know, if he -- if he has to come in tomorrow and then let me know how he's doing, that's all. I mean, I just can't let jurors out because their wife doesn't want them to serve on the jury.
MR. AGNIFILO: I agree with you.
THE COURT: I just can't do it. And if he decides to be ill, then we'll deal with him being ill, but the fact that he's now saying it's inconvenient or his wife doesn't like that he's on a jury -- I mean, I'm inclined to ask him have you been discussing this case with your wife, that would be grounds to strike him, but, you know, I'm going to have him sit -- if that happens, he will be a juror for the next six weeks sitting downstairs because, you know, he's got a choice: He can sit downstairs at that point or he can be a juror.
MR. AGNIFILO: My concern, Judge, is if you ask him that question and he sees that as the exit, he will say, yeah, I --
THE COURT: If he volunteers it, I will let you know.
MR. AGNIFILO: Okay.
THE COURT: I think you make good point.
Is there anything else on that?
MS. PENZA: No, Your Honor.
MR. AGNIFILO: No.
THE COURT: Do you have anything else?
MS. PENZA: No, Your Honor.
THE COURT: All right. I've got other stuff, but maybe tomorrow we'll start at 9:00, but then the defendant didn't get here until seconds ago, so --
MS. PENZA: The Government just does have one concern regarding --
THE COURT: Go ahead. Go ahead.
MS. PENZA: Sorry.
-- regarding the motion in limine that the Government filed. We just would like the opportunity to advise the witness however Your Honor had ruled prior to her taking the stand.
THE COURT: I'm going to rule at the end of the direct as to what to do --
MS. PENZA: Okay.
THE COURT: -- so you will have to tell the witness that, after I hear the direct testimony, I'll rule on the question of whether that particular question should be asked on cross, but, you know, it's a very serious question, but I think I need to hear the testimony.
MR. AGNIFILO: I have a proposal because I would imagine I know what you guys are worried about, and this is just a proposal. We can get to a point where Your Honor sort of sees what the testimony is, keep the direct open so that if you end up allowing it, they can bring it out. I think it's fair, if it gets brought out, they should be able to bring it out rather than make it like I have this cross-examination moment, which really isn't a fair thing for me to be able to do, so -- do you understand? So what I'm saying is at some point, say, nine-tenths into their direct, Your Honor will probably have an idea of where you are going on this issue and you can tell us and they can handle it on their direct. I'm trying to be a fair player.
THE COURT: Well, if you want to take a brief sidebar at some point toward the end of your direct, I can let you know at that point.
MS. PENZA: Okay. Fair enough, Your Honor. Thank you.
THE COURT: But I think the witness should know that the Court is seriously examining the issue --
MS. PENZA: Understood.
THE COURT: -- with an understanding of your position and the defense's position and we'll move on from there.
So what I'm now going to do is I'm going to go talk to these two jurors very briefly and then we'll start.
MR. AGNIFILO: Very good, Judge.
MS. PENZA: Thank you, Your Honor.
(Sidebar end.)
(Continued on following page.)
(The following occurred in the robing room with the Court and is sealed by order of the Court; counsel not present.)
(End of sealed portion.)
(Continued on following page.)
(In open court; jury not present.)
THE COURT: We'll take a sidebar.
Everyone can be seated.
(Sidebar conference.)
THE COURT: With regard to realtime, you don't want realtime for your client?
MR. AGNIFILO: No. Here is the situation --
THE COURT: Well then we'll discuss it in front of everybody.
MR. AGNIFILO: That's fine.
THE COURT: With regard to Alternate No. 4, I advised her that she would have to serve.
With regard to Juror No. 9, he's unemployed, as you know, he lives in Queens, but he goes up to the Bronx where his wife, from whom he's separated, is living with their six-year-old son. His wife has stage 4 cancer and she's receiving chemotherapy and, when she's in chemotherapy, she's unable to pick up their son from school -- he is six years old. And so my question of him was why didn't you just tell us this because you would have been excused if you had told us this before you were selected to be on the jury. I think he's under a lot of stress. I tried to explain to him that this creates a problem. He was very apologetic. I can't believe that he would be able to concentrate on this case if he remained a juror, plus there's the question of his wife's extremely serious illness and his son's safety and well-being, and so I'm inclined, unless you object, to excuse him and to replace Juror No. 9 with Alternate No. 1.
Is there any objection to that?
MR. AGNIFILO: I think that's right.
MS. PENZA: No objection.
THE COURT: Okay. That's what we will do. I will put it on the record that Juror No. 9 has been excused and is being replaced by Alternate No. 1.
MR. AGNIFILO: Fine.
MS. PENZA: That's fine.