1.Expert-Testimony Objection, Instruction Timing, and Morning Trial Preparations
56 lines(In open court; outside the presence of the jury.)
COURT CLERK: Case on trial. Counsel, please state your appearances.
MS. PENZA: Moira Penza, Tanya Hajjar, and Mark Lesko for the United States. Good morning, Your Honor.
THE COURT: Good morning.
MS. PENZA: At counsel table is Special Agent Michael Lever with the FBI this morning.
THE COURT: Good morning, sir.
MS. PENZA: And I expect that Teri Carby will be joining us shortly.
MR. AGNIFILO: Good morning, Your Honor. Marc Agnifilo, Teny Geragos, Paul der Ohannesian, Danielle Smith for Keith Raniere, who is present with us this morning.
THE COURT: Good morning, everyone.
Is there anything before we bring in the jury? I have one item.
Yes?
MS. PENZA: I think Mr. Lesko has something.
MR. LESKO: Two items related to the expert Dr. Hughes: Number one, I am inquiring in the court's preference in terms of offering her as an expert. Do you want me to do that in front of the jury or should we proceed?
THE COURT: Well, is there an objection to her as an expert?
MR. DEROHANNESIAN: I will be objecting, yes.
MR. LESKO: I think this has been litigated, Your Honor.
THE COURT: I know it has. So there is a continuing --
MR. DEROHANNESIAN: Yes.
THE COURT: There is a continuing objection that you should offer her as an expert and I think the jury needs to know that the defense objects. I don't want a speaking objection. What you can say is that based on prior litigation, the defense continues to object.
MR. DEROHANNESIAN: Could I just refer to our filing?
THE COURT: You can reference, sure.
MR. DEROHANNESIAN: Also with respect to that testimony, I gave Mr. Lesko a proposed limiting instruction that I feel should be given with her testimony and he is reviewing it. I don't know if he has had a chance to review it.
MR. LESKO: I object to the specific language. I would just ask the Court -- the Court has heard many experts at trial -- I would ask if the Court has a standard expert instruction. We will defer to the Court in terms of instructing the jury in terms of how they should consider Dr. Hughes's testimony.
THE COURT: I will instruct the jury at the time that I give the jury the instructions as to law. That's the instruction. But I think the jury has a right to know that the defense objected to the expert. That's all.
MR. LESKO: Very well. Thank you.
THE COURT: All right. Anything else?
MR. DEROHANNESIAN: Can I make my, either as an exhibit or on the record, what that proposed instruction is?
THE COURT: You can submit it and it will be part of the Court record. But I'm not going to give a contemporaneous instruction. I will give the instruction at the end, the way I always do.
MR. LESKO: Thank you.
THE COURT: Anything else?
MS. PENZA: Not from the Government, Your Honor. I believe we will have a small thing at some point during Nicole's testimony, but I don't think it needs to be taken up right now.
THE COURT: All right. Now, we have consulted with the jury and the jury has informed Mr. Reccoppa that they cannot stay past five o'clock, but they suggested that we begin at 9:00 a.m. and that we take a half hour for lunch. The issue about 9:00 a.m. is how fast we can get the defendant here in the morning and that's something that we need to take up with the management and the marshal's office. We will either start at 9:00 or 9:15, but I would like to give the jury a time so that we can rely on that time. I'm not sure that we can do lunch in 30 minutes. 45 is reasonable. But if we pick up half an hour at the beginning of the day and an extra 15 minutes in the middle of the day, I think that will help us.
One of the reasons that is now very important is that three of the jurors have advised that they have travel plans for the week of the 23rd of June. So we have one juror who has foreign travel plans beginning on the 23rd, one beginning the 25th, and one beginning the 27. Assuming we can finish with the testimony by the beginning of the week after next, if that's possible, this should not interfere with the ability of the jury to hear the closing arguments, the charge and to deliberate, and, of course, we have four alternates. But we would like to move matters along. This jury has been very cooperative and I think we ought to cooperate with them. That is where we are at the moment.
MR. AGNIFILO: Very good.
THE COURT: That's the update as of this time. I will let the jury know about the 9:00 a.m. idea after consulting with the marshal service. And the middle of the day, I would like to stick to 45 minutes, because I think it is just reasonable. There is so much that has to be done at lunch time, including having the jury go to have lunch and come back, and my experience is that the minimum is 45 minutes.
Anything from either side about any of the scheduling issues raised by the jury?
MS. PENZA: Your Honor, I think as long as it is 45 minutes. The only concern I have is for testifying victims. It is obviously a very long day. So I think as long as they have 45 minutes in the middle of the day, that should be okay.
THE COURT: I understand that point as well.
MR. AGNIFILO: Nothing from us.
THE COURT: Okay. Very good. Let's bring in the jury. Let's bring in the witness and the jury.
(Witness resumes stand.)
(Jury enters.)
THE COURT: I'd like everyone to remain standing for a moment because today is a very significant day in the history of our country. It is the 75th anniversary of the D Day invasion at Normandy, France and that event was the beginning of the end of World War II when our country and the British and Canadian forces attacked the forces of fascism in Europe on that day, about 10,000 soldiers, sailors and Marines were killed. There are 9,380 graves in the American cemetery in Normandy. And between that day and August, when Paris was liberated, a total of 73,000 allied troops lost their lives. And this is something we need to remember when we think about our freedom and the gift that we were given by those young soles back in 1944 and throughout World War II.
So I would like to ask for a moment of silence for all those who gave their lives saving our freedom.
You may be seated.
Good morning, members of the jury.
JURORS: Good morning.
THE COURT: When we complete the testimony of this witness, I will go over some of the scheduling issues with you. We all appreciate that you have looked into some of the questions that we have raised with you regarding the schedule of the trial.
All right. At this time, you may continue your examination of the witness.
MS. HAJJAR: Thank you, Your Honor.
Your Honor, at this time the Government offers Government Exhibit 548 into evidence.
THE COURT: I'm sorry, is the microphone on?
MS. HAJJAR: Yes, Your Honor.
THE COURT: Tell me again what the number is.
MS. HAJJAR: Government Exhibit 548.
THE COURT: 548?
MS. HAJJAR: Yes. I believe without objection.
MR. AGNIFILO: One second.
We have no objection.
THE COURT: Government Exhibit 548 is received in evidence.
MS. HAJJAR: Thank you, Your Honor.
(Government's Exhibit 548 received in evidence.)
MS. HAJJAR: May we switch to the PowerPoint, Your Honor.
THE COURT: All right. Here we go.
MS. HAJJAR: Thank you.
MAEGAN REES, called by the Government, having been previously sworn, was examined and testified as follows: