2.Evidentiary Hearing on Camila's Communications and Photographs
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(In open court - jury present.)
THE COURT: All right, members of the jury, we have a little bit of housekeeping to do. So rather than do it at sidebar and have you just sit here, I am going to excuse you to the jury deliberation room for a few minutes and call you back in when we have finished what we need to do.
All rise for the jury.
(Jury exits.)
THE COURT: Please be seated everyone.
All right, I have a letter from the defense regarding some of the evidence that the Government proposes to introduce with the next witness -- who is?
MS. HAJJAR: Special Agent Maegan Rees, Your Honor.
THE COURT: Okay. So let's go over the objections. Let's start with regard to Government Exhibit 1400.
Just tell me, in a nutshell, what the objection is --
MR. AGNIFILO: Yes.
THE COURT: -- so that we have the context on the record before I hear from the Government.
MR. AGNIFILO: Right. So the first is authenticity.
I don't feel that the Government, in the absence of a witness testifying, that this person was involved in these communications can authenticate 1400 sufficiently under the Rules of Evidence.
THE COURT: Okay.
MR. AGNIFILO: So the first ground is authenticity.
The second ground is hearsay; that many of the assertions in these written communications are assertions of fact that I believe are being offered for the truth of the facts in the statement. We don't have the ability to cross-examine this witness. This witness is an unsworn witness. These are statements being offered for the truth, so the second basis is hearsay.
The third is the nature, the size, the amount of the material and the nature of the material I think gives rise to a due process issue, which we raised in writing. I do not argue, because I cannot argue under Crawford that these statements are testimonial. They are not testimonial, but without a witness to give context -- I mean, I'm not going to get into the details. I get into the details with certain sections in the written memorandum, you know, but these are intimate, personal communications that we don't know are intentions, daydreamings, musings, plans, and without my ability to cross-examine the person saying these things, I feel the evidence is not only unreliable under traditional Rules of Evidence standards, but also since we're talking about hundreds and hundreds of pages of these very intimate conversations without any ability to cross-examine them, I think it gives rise to a due process issue that, given the nature of the materials, given the amount of the materials, and given the fact that this is a witness that the Government could have endeavored to call. It might not have been as easy as some other witnesses, but they could have endeavored to call the witness. They could have put in place mechanisms that are available to prosecutors, federal prosecutors, to have a witness come to court and testify. And I don't believe they put in motion any of those things and they're trying to just put in these communications without me cross-examining a witness.
THE COURT: All right, thank you.
Yes.
MS. HAJJAR: Your Honor, just for background. Special Agent Rees has reviewed thousands of pages of communications between the defendant and Camila and that's what is at issue here. And these communications were obtained by search warrant from two accounts, the vicibaby@gmail.com account and the Camila's castle account. The Camila's castle account is the one that the defendant is objecting to; but the Camila's castle account, like the vicibaby account --
THE COURT: The Camila -- what is the name of the account?
MS. HAJJAR: Camilascastle@yahoo.com is the second e-mail address.
THE COURT: Uh-hum.
MS. HAJJAR: This e-mail address was used to surreptitiously communicate between the defendant and Camila. They're the same type of communications, they're the same subject matter of communications, but these communications were in 2009 when Camila was 19 years old, and they reference her being a good slave, an obedient slave. One of them attaches a -- forwards an e-mail from KeithRaniere@yahoo.com. The tenor and the type of messages are exactly the same as the other hundreds of messages that Special Agent Rees has reviewed and will testify to and to which the defendant is not objecting. There is simply no basis that these -- these e-mails would be different in kind from the remainder.
THE COURT: So with regard to -- let's take it one thing at a time.
In terms of authenticity of the e-mails, what's your answer to that?
MS. HAJJAR: They speak for themselves -- a few things, Your Honor, but the first is the face of the communications themselves. One of them, for example, is a forward from KeithRaniere@yahoo.com. Camila sends that forward to the defendant and says -- well, sends it to the same e-mail address. So it's the e-mail address that's used where there are chains of e-mails. It's used to surreptitiously communicate between the defendant, the same e-mail address between the defendant and Camila.
And so you see a chain of e-mails that are clearly from one person to another where the defendant is responding to something Camila wrote, but they're all from the same Camila's castle e-mail address. And in one e-mail there is even a reference to: This is the account that you wanted me to communicate with, the private account, so I don't e-mail your other accounts. And so that's made very clear from the content of the messages themselves.
THE COURT: Who sent that message?
MS. HAJJAR: Camila sent the message to -- I mean, presumably Camila sent that message to the defendant because these are back-and-forth between Camila and defendant. So she makes --
THE COURT: Are you submitting Camila's statements for the truth of the matter asserted?
MS. HAJJAR: They're to provide context, but many of these messages, Your Honor, are the defendant's messages. They're clear from the --
THE COURT: Well, the defendant's messages would come in --
MS. HAJJAR: Yes. And so this back-and-forth --
THE COURT: -- as statements of a party opponent. So they are not subject to the hearsay rule.
MS. HAJJAR: Exactly , Your Honor.
THE COURT: But Camila's messages are hearsay.
MS. HAJJAR: They provide --
THE COURT: Technically, correct? I mean it is an important technical issue, and so the truth of the matter asserted, if they are being submitted for the truth of the matter asserted, how would they come in?
MS. HAJJAR: Well, a few things Your Honor.
They're not really being --
THE COURT: If they are coming in simply to provide context for Keith Raniere's statements, that's one thing. But if they're coming in to prove something, then they're hearsay.
MS. HAJJAR: They're to provide -- they're exactly as Your Honor is describing, they're providing context for the defendant's responses. And what's more, the content of the messages aren't ones that are -- they're things like, you know, I love you, I will be a good slave for you. They're not things that we're offering -- there is no truth to that matter, it's just the fact that it was sent at this time to the defendant and the defendant responds, and they're exactly the same type of messages that we are admitting with respect to the vicibaby@gmail.com account.
MR. AGNIFILO: Here 's the problem is that one of the specific exhibits that they want to put in, basically, is Camila saying something like: It's been thirty full moons since we've been together. And there's no response. I'm talking about Exhibit 1701.
So I guess I'm just thinking ahead a little bit, but there are things in here that are only relevant if they're offered for the truth, that the contextual --
THE COURT: All right, I understand your point.
What about that? If it's something that, if there is a statement by Camila in one of these e-mails that is not responded to by Mr. Raniere, then what other purpose would there be than to provide it for the truth of the matter asserted?
MS. HAJJAR: In part, Your Honor, for the precise purpose that Mr. Agnifilo is challenging the authenticity of this entire e-mail account. They are clearly communications between Camila and the defendant, and some of the messages sent by Camila make that clear based on the context of those -- of the messages, themselves. And so the argument that they're both inauthentic and can't be shown, but that you shouldn't look at those other messages to provide context, not for the truth, but to provide context and to establish who is -- who is -- who are these messages between is extremely significant, Your Honor.
THE COURT: All right. Okay, let's move on to the next issue, the issue about the wrists. Is there an issue about wrists?
MR. AGNIFILO: Oh, yes, yes, yes. I didn't hear what Your Honor said.
THE COURT: Yes.
MR. AGNIFILO: I don't see, without someone testifying as to what had happened, how that is admissible. I mean it's a photograph of an injury that seems to be consistent with a cut of some sort. And --
THE COURT: All right, what about that?
MS. HAJJAR: So --
THE COURT: Why should that come in? Unless you have someone who is going to come in and say, I'm the doctor and I examined this person in the Emergency Room and there were cuts on her wrists and there is some paperwork that was being provided where the doctor wrote down that she said this is what happened; why is this coming in?
MS. HAJJAR: I just want to make clear, Your Honor, that these exhibits come from the vicibaby@gmail.com account. The reason why that's significant is the defendant is not objecting to the messages that accompany these images, and the messages, themselves, make clear what this injury is. So there are messages contemporaneous with this -- with these photographs.
THE COURT: All right. Well, when I see the messages I'll let you know about that.
MS. HAJJAR: Okay, Your Honor.
THE COURT: I am not going to rule on it until I see the messages.
MS. HAJJAR: May I just note one thing, Your Honor?
THE COURT: If I can provide that information to you, what would you like to know?
MS. HAJJAR: I just want to note that the foundation for these -- Lauren Salzman testified that the defendant gave an explanation for the creation of DOS that had something to do with Camila's suicide attempt. This is a theme that comes up in the messages themselves, that DOS is somehow created or tied to this injury. So I even believe Mr. Agnifilo may have alluded to that in his opening statement, that this is the explanation for the creation of DOS. And so the timing of this -- of the messages relating to this and the images, themselves, are significant to showing that -- to showing that that explanation is not true.
MR. AGNIFILO: So I think that we have to separate out what is a valid or invalid theme with admissibility. I mean, if the evidence isn't admissible, it's not admissible regardless of whether it fits into some theme or even if it's, in fact, true or not.
And my concern with these photographs is there's also just a 403 issue. I mean it's --
THE COURT: Yes, I understand that. I just want to see the e-mails before I rule on it. I think it is unlikely that it is going -- that the pictures are needed and, as long as the information is being provided by admissible evidence, you may have to do without the pictures. We've had plenty of pictures for this jury. So, the 403 issue is the one that I am concerned about. Okay? So just bear that in mind.
What else?
MR. AGNIFILO: So, one of the other objections is they want to put in a photo of the ultrasound.
THE COURT: Yes.
MR. AGNIFILO: Which I think is the same 403 issue as the injuries to the wrist.
THE COURT: Well, an ultrasound is a lot different from pictures of someone who slit her wrists.
What is the ultrasound for?
MS. HAJJAR: The ultrasound and the pregnancy test, Your Honor, are accompanied by meta data which show exactly when they're being sent and it is a lead up to a significant event in -- for purposes of this.
THE COURT: And that was all in the materials at the e-mail?
MS. HAJJAR: Obtained from Google by -- by search warrant, Your Honor, for the vicibaby@gmail.com account.
THE COURT: All right, well, you can put that in.
Anything else?
MR. AGNIFILO: Yes, Judge.
In terms of the 1700 series.
THE COURT: Yes.
MR. AGNIFILO: They're trying to elicit a number of e-mails that Lauren Salzman is having with different members of Cami's family, and the problem now is Lauren Salzman has come and gone. I can't cross-examine anybody in regard to this and if they wanted to put these in, they should have put them in through Lauren Salzman. And so I don't know why they should be able to do it now that she's off the stand.
MS. HAJJAR: Your Honor, I truly do not understand this argument. If Lauren Salzman had not testified, we would be able to put these e-mails in as statements of co-conspirators. There is ample foundation for that. Daniela has testified. Lauren Salzman has testified. We don't need to have a witness that was present during communications if the foundation is set for co-conspirator's statements, which these plainly are; they're very similar to the ones that have already been admitted.
THE COURT: All right, they can come in.
MR. AGNIFILO: Just --
THE COURT: They can come in.
MR. AGNIFILO: Some of the e-mails are just between Cami and Lauren. I don't see how any theory that shows that's a co-conspirator statement.
MS. HAJJAR: Your Honor --
THE COURT: Well, because she is a co-conspirator. You know, I am not going to split hairs over how much of a co-conspirator she is.
That's it.
MR. AGNIFILO: Sorry, then we get back to problems of first names, last names. If she is a co-conspirator, we haven't been treating her as a co-conspirator, so I renew my objection --
THE COURT: Who?
MR. AGNIFILO: Cami.
THE COURT: I thought you said -- is Cami a co-conspirator?
MS. HAJJAR: Your Honor, she was involved -- as Daniela and Lauren Salzman testified, she was involved in the confinement of Daniela in the room and so, in that respect, she was assisting in a criminal scheme. She is, however, a victim in other respects, as Your Honor knows, and so that's why her identity is being protected.
THE COURT: Well, in order to protect Daniela's identity --
MS. HAJJAR: Yes.
THE COURT: -- you can't use the last name for Camila. I mean, it is just a fact that -- you know, this is a choice that, apparently, Mr. Raniere made to engage in this behavior with three sisters. That is a creation of your client, it is not a creation of the Government, so I am not going to have Camila's last name, even though she is a co-conspirator, or alleged to be a co-conspirator, disclosed because that would end up disclosing the name of a victim, or alleged victim.
So we are not going to do that. Just that's life, you know. That was Mr. Raniere's choice, that wasn't the Court's choice.
Anything else?
MR. AGNIFILO: Nothing from us.
THE COURT: All right, let's bring the jury back.
(Pause.)
(Jury enters.)
THE COURT: Please be seated, everyone.
The Government may call its next witness.