1.Elizabeth Butler Hearsay Arguments and Daubert Scheduling
49 lines(In open court; outside the presence of the jury.)
THE COURT: All right. Appearances, please.
MS. PENZA: Moira Penza, Tanya Hajjar, Mark Lesko for the United States. Good morning, Your Honor. Also at counsel table is Special Agent Michael Weniger and our paralegal specialist Teri Carby.
THE COURT: Good morning to all.
MR. AGNIFILO: Good morning, Your Honor. Mark Agnifilo, Teny Geragos, Paul DerOhannesian and Danielle Smith, plus Keith Raniere who is with us in court this morning. Good morning, Your Honor.
THE COURT: Good morning.
Please be seated.
For the government, let me just ask, the supplemental issue on the Daubert issue?
MS. PENZA: We expect to file that today.
MR. LESKO: We are putting the final touches on it, Your Honor. We expect to file it over the lunch break.
THE COURT: All right.
MR. AGNIFILO: And you want our response on Monday?
THE COURT: Monday at noon.
MR. AGNIFILO: That's fine, Judge.
THE COURT: Okay. Thank you very much. And if we do go ahead with the Daubert hearing, I'm not quite sure when we would do it, but we can talk about that. I'm not sure, would you be available sometime Tuesday to do a hearing if we need to have a hearing?
MR. LESKO: Your Honor, we've asked Dr. Hughes to block Tuesday afternoon if that's amenable to the Court.
MR. AGNIFILO: We could do Tuesday afternoon.
THE COURT: All right. That's fine. Let's see what you submit and then I will let you know, but why don't you put it down for 2:30 Tuesday afternoon tentatively.
MR. AGNIFILO: Okay, Judge.
THE COURT: All right.
MR. AGNIFILO: There's one other issue --
THE COURT: Right.
MR. AGNIFILO: -- that I don't think we have to resolve now but we have to resolve it at one point.
One of the government's witnesses today is a women named Elizabeth Butler and I believe Elizabeth Butler worked in a Planned Parenthood type of place and I'm concerned with the hearsay. Now, I can make the objections as they come up if they appear to be hearsay, but what I wanted to do is sort of flag the issue for the Court and then we can resolve it if Your Honor wants to resolve it or preview the issue if that's what Your Honor wants to do.
MS. PENZA: Your Honor, I believe the issue has been previewed for your Your Honor prior to, at least, in part, prior to trial. This is the issue where on Camila's records there is an indication, I believe this is what Mr. Agnifilo is referring to, there's an indication in her medical history form that she has been sexually active with her partner for five years.
Mrs. Butler is a nurse practitioner. She is prepared to testify that she actually developed the intake form and that the information that is elicited on that form from patients is pertinent to and necessary for medical treatment, that this is an OB/GYN facility. Knowing how long someone has been with their partner and whether they have changed partners is a necessity in order to adequately assess whether they are at risk for new sexually transmitted diseases, et cetera. So that's the foundation that the government expects to lay as to that.
There is another, I think, hearsay issue, I think what Mr. Agnifilo would say is hearsay, is that at the time -- Mrs. Butler was the -- as well as seeing patients, she was also the office manager at the time at McGinnis Women's Health which provides -- it was an OB/GYN practice. And at that time, she was in charge of dealing with complaints from clients and so she was the person who ultimately was assigned to interface over the phone with Pamela Cafritz after Pamela Cafritz expressed upset about this supposed HIPAA violation.
The government views Pam Cafritz's role there as a co-conspirator. We're not offering it for the truth of her statements. We're also -- we're offering it for the fact that this was part of the means and methods of the conspiracy.
MR. AGNIFILO: Your Honor, my concern is -- obviously, we've never spoken to Ms. Butler -- is that in her 3500 material, specifically 3500EB-3, she says, All information regarding the sisters, whose last names she uses, the last name we're not using in court but the sisters that we're talking about, was relayed to her, Ms. Butler, by her co-worker Judith Wilner.
So my concern is in light of that statement in the 3500 material, I don't know what she's going to say are things that she did herself or things that were related to her by her co-worker and that's the only reason I'm flagging the issue now so that we don't have this sort of a wholesale hearsay issue later.
MS. PENZA: So, Your Honor, as to that, I believe that Your Honor can give the instruction about whatever Mrs. Wilner, who is also a nurse practitioner at the office, relayed to Mrs. Butler -- but then Mrs. Butler is the person, I think it is important to have that context, for her follow-up conversation with Pamela Cafritz. But I believe that Your Honor can give the instruction that whatever Judy Wilner told Mrs. Butler is hearsay and not being, that that would not be admissible for the truth of those statements but only for their effect on Mrs. Butler, but her own communications with Pamela Cafritz are not hearsay. And then there are also the statements within the records that are not hearsay because they were for the purpose of medical treatment or diagnosis.
MR. AGNIFILO: My concern with that approach, Judge, is statements made to a medical practitioner are exceptions to the hearsay rule because they are being offered for the truth. When someone goes to a doctor and says, My left arm hurts, the reason that's a hearsay exception is you tend to be more truthful with a medical professional. So I don't see how the government can get around the clear import of this information being offered for the truth by just saying it's not being offered for the truth. It's clearly being offered for the truth or else it wouldn't be made to a medical professional.
I think we're getting into a 403 issue with this approach that things that are admittedly hearsay and would not be admissible because of the rule against hearsay are being admitted but with this instruction to the jury that you're to disregard it because it's relevant to the effect on the listener. I don't know that the effect on the listener raises to such materiality that the clear hearsay of this information somehow doesn't carry the day.
I mean, it seems like we've swallowed the hearsay rule by an approach that the government has been encouraging the Court to follow and here what we have is we have clear hearsay. We have statements being made to another medical professional which are clearly being offered for the truth and I don't think that we can admit them without my ability to cross-examine that medical professional just by saying, well, we're not going to offer for the truth, it's because of the effect on the listener.
MS. PENZA: I think there's two categories here, Your Honor.
So as to Camila's statements that she was five years with her partner when she was 21 years old, that, Your Honor, we are offering for its truth. We expect that Mrs. Butler will be able to say that these are true and correct copies of Camila's medical records and that that statement that is within here, five years with partner, is the exact type of statement that one expects to get from an individual. She put together the form herself. When you're trying to provide OB/GYN treatment to someone, knowing how long they've been with their partner, whether they're in a monogamous relationship is critically important. We are offering that for its truth.
We are also offering this conversation between Pamela Cafritz -- there is really no truth to that conversation. The conversation with Pamela Cafritz and Mrs. Butler is all about the means and methods by which this enterprise operated.
THE COURT: Meaning, what? That Cafritz was trying to do what?
MS. PENZA: Meaning that Cafritz was trying to cover up for the defendant and trying to conceal the fact that he was having sexual relationships with three illegal women, one of whom was very young at the time and who he had previously -- he had been having sexual relationships with when she was under age, but that part of the communication, that's, there's no hearsay issue there. There just is not.
THE COURT: All right. Thank you for previewing this for me. Thank you.
MR. AGNIFILO: You're welcome.
MS. PENZA: You're welcome. Thanks to Mr. Agnifilo. I won't take credit.
MR. AGNIFILO: Everyone is welcome.
MS. PENZA: I don't want to take credit.
THE COURT: I'm afraid to ask if there is anything else.
MS. PENZA: I would like a very brief sidebar, Your Honor.
THE COURT: All right.
MS. PENZA: That one I'll take credit for.
(Continued on next page.)
THE COURT: All right. Let's bring in the witness.
(Witness resumes the stand.)
(Jury enters.)
THE COURT: Please be seated.
MR. AGNIFILO: May I proceed, Your Honor?
THE COURT: Yes.
Good morning, members of the jury.
JUROR: Good morning.
THE COURT: All right. Let's continue with cross-examination, Mr. Agnifilo.
I remind the witness that she is still under oath.
(Continued on next page.)
DANIELA , the witness, having been previously duly sworn, resumed as follows: