1.Protected-Name Procedure and Denial of Mistrial
85 lines(In open court; jury not present.)
THE COURT: Good morning. Please be seated in the back. You may be seated in the gallery.
(Defendant enters the courtroom at 9:11 a.m.)
THE COURT: Case on trial. State your appearances.
MS. PENZA: Good morning, Your Honor. Moira Penza, Tanya Hajjar, Mark Lesko for the United States. Also at counsel table is Special Agent Michael Weniger from the FBI and Paralegal Specialist Teri Carby.
MR. AGNIFILO: Good morning, Your Honor. Marc Agnifilo, Teny Geragos, Paul Der Ohannesian, Daniel Smith for Keith Raniere who is present in court.
THE COURT: Good morning. Please be seated.
All right. The Government has filed a letter under seal this morning.
Have you provided that to the defense?
MS. PENZA: We have, Your Honor.
THE COURT: All right. And what's the position of the defense on this?
MR. AGNIFILO: Your Honor, I most respectfully object to the procedure outlined by the Government. I'm concerned most of all by the distinctions that the Government has drawn within the broader category of people who are in DOS. There are people whose nicknames or abbreviations or first names are sometimes used and then the Government has a procedure here where sometimes people's full names are used and the distinction that the Government draws is whether they're first line DOS members, and my concern with this procedure is this terminology is only in existence because it's consistent with the Government's theory of sex trafficking and for no other reason; and I do not follow, I do not subscribe, I do not agree with the Government's theory of sex trafficking, and I do not agree to use the terminologies that have been outlined by the Government that are created solely because they reflect the Government's theory of sex trafficking. I don't want this jury thinking that I somehow agreed to this process and I agree that certain first line DOS members are not getting protection and other people are. The problem that we have now -- and I don't know how we get around it and I'm trying to think of solutions -- is I am being forced to adopt terminology that is only in existence because of the Government's theory of the case. It's not my theory of the case, it's repugnant to my theory of the case, and so with utmost respect, Your Honor, I disagree with this procedure.
THE COURT: All right.
Ms. Penza?
MS. PENZA: Yes, Your Honor, so the Government -- this idea that the first line is only consistent with sex trafficking is just false. The idea, Your Honor, is that everyone in the first line -- the Government believes that every member of the first line was a coconspirator. There is no question; there's no distinction about that. There is one member of the first line who was also the victim of child pornography and sexual exploitation by the defendant when she was 15, but more importantly revealing her last name would expose -- would necessarily identify the last name of her sister who is a victim of forced labor. Another defendant has already pleaded guilty to the exact charges related to forced labor of that second sister, so that's the only reason we are seeking to protect the identity of one of the first line DOS slaves. Everyone else the Government considers a coconspirator. These were people who were -- when they joined DOS, they knew that the defendant was their grandmaster and then they conspired with the defendant to conceal his identity and to recruit new people in to get naked pictures; to get property; and in some situations, to get woman to have sex with the defendant. So the Government views those people as coconspirators and that is the distinction that the Government is drawing.
I think that is -- that's really it. I don't really think there's much other dispute. The Government has conceded that there are a couple people where the Government knows that using their last name is -- there's no practical way to not use their last name and has not sought to protect those people because we don't think there's a way to do it, but other than that, that's the distinctions that the Government has drawn and they are consistent with everything the Government has presented thus far and they are consistent with what has already happened in this case thus far.
MR. AGNIFILO: My concern, Judge, isn't of consistency; it's that the Government's theory of sex trafficking is being imposed on me. It's being imposed on me in the terminology I'm being asked -- I'm being forced, if the Government gets its motion granted, to use and it's not consistent with my theory, so as a result --
THE COURT: You can dispute that these individuals are coconspirators or that there's a conspiracy at all --
MR. AGNIFILO: But Judge --
THE COURT: -- and the Government is not -- except for that one exception -- the Government is not proposing or indicating that these people are victims whose full names are being provided.
MS. PENZA: That's correct, Your Honor.
MR. AGNIFILO: The jury will figure this out. The jury will absolutely -- they probably figured it out on the first day that certain people are being called by their first names and certain people who seem to be involved in DOS are being called by their full names. That's not going to be lost on the jury.
THE COURT: Well, I think the jury needs to have an instruction that the individuals who are only being identified by their first names are alleged to be victims -- they're alleged to be victims by the Government, and that way you can take issue with it, if you so desire, and you will be able to cross-examine the witnesses regarding whatever it is that they have -- the witnesses have stated on their direct testimony.
MR. AGNIFILO: But -- but --
THE COURT: The purpose of the limitation is to -- I will tell the jury -- I would expect to tell the jury -- is that this will protect the alleged victims from having their privacy invaded by the media.
One more time, sir, back there, Mr. Newsday, if I see one more time that you make any grimace, any kind of hand remark, you are out of here -- out -- and you can watch in the overflow room. I have a lot of people who want to be in here and you can just wait out there and be in the overflow room. That's it, you're out. You're out. Go.
JOHN RILEY: For what? I didn't do anything.
THE COURT: Go. You're out. You shook your head at me. What do you think, I'm blind?
(Pause.)
THE COURT: All right.
MR. AGNIFILO: Judge, can I just --
THE COURT: Do you have something else? Go ahead.
MR. AGNIFILO: I do.
THE COURT: You can make your record.
MR. AGNIFILO: I have to.
THE COURT: Well, you have.
MR. AGNIFILO: I have -- this is -- the problem is in the distinctions. I am -- just so the record is clear, I object to this whole procedure, and I have objected before the trial, but I think it makes it worse -- I think it makes it worse if we make distinctions within DOS.
THE COURT: The problem with this case is that it is extremely complex, it involves people who may be innocent victims of a series of crimes. That's the Government's theory. I'm not ascribing to it, but that's the Government's theory. There are many people on this list. This isn't a small list (indicating), this is a big list, and you know who these people are and your client knows who these people are, so this list is not some secret from the defense, I assume.
Is that right?
MR. AGNIFILO: No. We got the list 15 minutes ago.
THE COURT: No, that's not what I'm asking. Does your client know who these people are?
MR. AGNIFILO: We know who everybody on this list is.
THE COURT: Right.
MR. AGNIFILO: But there's been no -- there's been no inkling of anything untoward. I mean, I don't know what -- I'm trying to understand if the Court has a concern about that. There's been no suggestion that my client has done anything in regard to anyone, and so from what I can --
THE COURT: I don't know why I'm here on that case.
MR. AGNIFILO: Sorry, Judge?
THE COURT: I don't know why I'm here if your client is not alleged to have done anything to anyone. I don't understand that.
MR. AGNIFILO: To witnesses in the capacity of witnesses.
THE COURT: That's not the point. You know that's not the point.
MR. AGNIFILO: That's the point I'm trying to make.
THE COURT: The point is -- what is the point?
MR. AGNIFILO: The point is --
THE COURT: No, no, I'm not asking you, I'm asking the Government. It's their request.
MS. PENZA: Yes, Your Honor, and as we've laid out in our motions in limine, which Your Honor already granted, here there are extreme privacy concerns related to both the witnesses and also innocent third parties, and this is -- the nature of this case is so extreme -- the nude photographs, the collateral -- this is the exact type of case. There are far less salacious cases where this type of -- where witnesses' identities have been protected, and so this is the heartland of the type of case where this should be done. The defendant should not get to further humiliate these people. There is no point. He knows exactly who they are; he knows everything about them. It is not limiting cross-examination, nothing.
MR. AGNIFILO: Judge, maybe -- the concern I have is at this point, since I lost the motion, is the distinctions that I'm going to have to say to a witness: Isn't it true you're in a room with this person, first/last name; this person, first/last name; and this person, first name, and the jury is going to think, Why did the defense attorney do that, and my concern is that the jury is going to think somehow I have bought in to this theory that that's no longer a theory because, quite frankly, the Court has accepted it, of sex trafficking that the Government is propounding. It's my position nobody was sex trafficked. That's my position; that's going to be my argument. That was my argument in the opening, that's going to be my argument in closing. So then why, in the eyes of the jury, am I going to get up there and say this person's full name, this person's full name, this persons first name? We're supposed to explain the Government's theory? This is why Mr. Agnifilo did that? I don't -- I want to be clear: I don't want to do it. I'm only going to do it if Your Honor forces me to do it, if you order me to do it; and if you order me to do it, I will do it. But if you order me to do it, I am going to ask you to tell the jury that you have ordered me to do this because I don't want the jury thinking that I'm doing this because this is my theory that this is my idea because it's not my idea.
MS. PENZA: I think Mr. Agnifilo has a fundamental misunderstanding of the point of this. Obviously the Government believes that the defendant engaged in sex trafficking, there's no doubt about that, but even if sex trafficking were not charged here, the Government would be seeking these same protections for these people. These are victims of wire fraud and extortion that related to naked photographs that related to their deepest darkest secrets, lies that the Government and his coconspirators had them tell about their families, about other loved ones and so that is what this instruction is about, and so, Your Honor, that's the Government's position, but I think Mr. Agnifilo is hanging his hat on a sex trafficking point and that is not the point. The forced labor charges in this case, Your Honor, deal -- in part deal with the sex and with the taking of naked photographs, so the sex trafficking is just one piece of this case and why the victims' privacy needs to be protected.
MR. AGNIFILO: Your Honor, I think we are in unchartered ground. There's no Circuit precedent on any of this, and I don't think there are any like cases, and one of the concerns that I tried to bring up is that it's unwieldy in this particular case because of all the people, it's one of the aspects of the motion we filed, and I think it's a lot for the Court to have to deal with, quite frankly, and I know the Court is going to try and do the best it can with the situation, but I don't think it's tenable and -- I don't ask for mistrials easily, I have probably asked for four in my entire career, I don't see a way out of this problem.
(Pause.)
THE COURT: All right, I'm going to deny the defendant's motion for a mistrial. Any issues caused by a witness referring to certain individuals by their first name only and by asking the Government if they may use last names of certain other individuals can be cured by a jury instruction, which I will give. Going forward, the Government shall provide the defendant and each witness, including the current witness, with a list of the individuals whose identity should be protected from the public and the press, that way each witness can refer to the list rather than asking the Government whether a particular individual's identity is protected.
You don't have a proposed jury instruction.
MS. PENZA: Not yet, Your Honor.
THE COURT: I have one.
To the jurors: You may have noticed during yesterday's testimony that the witness used first names of certain individuals. That is because the names of certain alleged victims are being withheld from the public and the press to protect the privacy of those individuals. I have therefore instructed the parties to refer to those individuals by their first names only; however, those full names are known to the Government, the defendant, and to the Court.
You may also have noticed that the witness was asking the Government whether she should say the last names of certain individuals. Going forward, the witnesses will receive a list of the individuals whose last names are to be protected to which they may refer while testifying.
Anything else you want me to put in there?
MS. PENZA: Not from the Government Your Honor.
THE COURT: You object?
MR. AGNIFILO: I do, Judge.
THE COURT: Your objection is noted.
Also, I'm going to direct that the parties shall not make any speaking objections. If the basis for an objection is not apparent, the parties may request a sidebar.
MR. AGNIFILO: Very good. Thank you, Judge.
THE COURT: Okay, what else?
MS. PENZA: Nothing else from the Government, but we would just ask for five minutes to make sure that the list is correct for the current witness.
THE COURT: All right, we'll take a five-minute break.
MS. PENZA: Thank you.
(Defendant exits the courtroom at 9:29 a.m.)
(A recess in the proceedings was taken.)
THE COURT: Please be seated.
(Defendant enters the courtroom at 9:41 a.m.)
THE COURT: All right, there's a question?
MS. PENZA: Yes, Your Honor. I have not spoken to the witness since yesterday's -- since her direct testimony yesterday and so I haven't explained this procedure to her in terms of having a list in front of her, so I was hoping that I could -- that the Court would grant me a minute to just explain that to her, unless the Court wishes us to do it on the record in front of the jury, but I wasn't sure whether Mr. Agnifilo would have an objection to that.
MR. AGNIFILO: I would rather not do it in front of the jury. I don't want to do it in front of the jury.
THE COURT: All right, either do I. Why don't you take a moment to advise the witness of the procedure that's going to be followed and then we'll resume with her examination which you said is about another hour?
MS. PENZA: Hour, hour and a half.
THE COURT: All right. Well, when you get close to the end, let me know so we can have a discussion.
MS. PENZA: Yes, Your Honor. I think we may want to have that discussion a little bit sooner.
THE COURT: Well, whenever you are ready for the discussion, I'm sure the defense is ready for the discussion and so am I, okay?
MS. PENZA: Thank you.
THE COURT: All right, we'll take a moment. Thank you.
(A recess in the proceedings was taken.)
THE COURT: All right, you may be seated.
Are we ready for the jury?
MS. PENZA: Yes, Your Honor. We have the list in front of the witness's chair and we showed it to the defense.
THE COURT: All right. Let's get started.
Please bring in the jury.
And you should make that list an exhibit --
MS. PENZA: Yes, Your Honor.
THE COURT: -- a Government exhibit for the record. Just give it a number.
MS. PENZA: Sure.