1.Impeachment Materials and Hearsay Limits for Nicole's Cross-Examination
33 lines(In open court - jury not present.)
(Judge NICHOLAS G. GARAUFIS entered the courtroom.)
(Defendant entered the courtroom.)
THE COURT: Appearances.
MS. PENZA: Moira Penza, Tanya Hajjar and Mark Lesko for the United States.
Good morning, Your Honor.
Also at counsel table is Special Agent Michael Lever and paralegal specialist Teri Carby.
MR. AGNIFILO: Good morning, Your Honor.
Mark Agnifilo and Teny Geragos will be here in a minute. We have Paul der Ohannesian and Danielle Smith for Keith Raniere, who is with us in court this morning.
Good morning, Judge.
THE COURT: Good morning, everyone. Please be seated.
About how much more do you have on direct for Nicole?
MS. PENZA: About five minutes, Your Honor, but I haven't received any materials for cross-examination at this point and so I would like the opportunity to review before cross-examination begins.
MR. AGNIFILO: We are going to provide them when the direct is done. When we provided them before the direct was done on the witness before, the prosecutor showed our cross-examination materials to the witness, and as I put on the record, I thought that took the sting out of my cross-examination. So when the direct is done, we will give over the materials.
MS. PENZA: Your Honor, the Government's concern is that, as to this witness, again, the defendant has secreted his phones and his devices in Mexico and so the Government is operating with less information at this point.
And so what happened with Sylvie is that defense counsel, essentially, read hearsay statements into the record and the Government doesn't want that happening with Nicole. If there are materials, if there are text messages, if it is not proper impeachment, then the defense counsel cannot read in messages into the record. And we want to make sure that's not going to happen and that we don't have to make those objections in front of the jury if there is going to be improper material.
And as to -- we had the sidebar, Your Honor, about the other -- the other witness. The witness was still on direct and they were the same sort of materials that we had, of course, prepared the witness to expect during cross-examination. They were her own e-mail statements, so I don't think that there was any prejudice to the defendant. And, in fact, the one e-mail that was at issue Your Honor precluded the part that would have been particularly prejudicial, and Mr. Agnifilo still tried to get in the statement from the part that Your Honor had precluded on cross-examination.
So the Government just wants to make sure that these witnesses are treated fairly, and I am concerned that if we don't have adequate time to review the materials in advance, that there could be -- there could be that problem.
THE COURT: Well, how much time do you think you need?
MS. PENZA: Depends upon the quantity of the material.
THE COURT: Well, let's see.
MS. PENZA: So maybe Mr. Agnifilo can, at least, proffer how much material there is. If it's years of text messages and it's screenshots where we don't know what's been deleted, what hasn't been deleted, I think that's highly improper, Your Honor, and we should be able to make an appropriate record as to that.
MR. AGNIFILO: Your Honor, I don't think it's improper. I mean, I think -- I think there's a strong indication that the witness might have not provided these text messages to the Government. That's -- that will be a subject of cross-examination. That's why they don't have them.
But that being said, we have several months of text messages. The vast majority -- and quite frankly, I think that's probably going to be a total of maybe ten minutes of cross-examination, probably very late in the cross-examination.
We have e-mails, many of them are Government exhibits, so we're -- and also there's -- the Court's ruling is that if something is classic impeachment material, there is no obligation to give it to the Government beforehand, and this is -- this is classic impeachment material.
MS. PENZA: Your Honor, the last -- with the last witness, Mr. Agnifilo provided the materials to the Court in advance, and that was the understanding. I don't believe Mr. Agnifilo has provided any materials as to this witness for in camera review to determine whether it is, in fact, proper impeachment material.
I am also concerned, and I want to flag this now, that to the extent Mr. Agnifilo intends to try to seek to put into evidence Nicole's own e-mails, Allison Mack's e-mails, the Government is going to have a hearsay objection as to those things. The state of mind exception is limited and we just want to make sure that, and we can obviously do it at the time, but we are going to have -- I expect there's going to be a lot of objections, and so I think we could streamline this if the Government is aware of what the defense is anticipating using.
MR. AGNIFILO: As Your Honor knows, it's not required under the rules; it's impeachment material. We have the right to impeach every witness who is a Government witness with materials that are not Rule 16 materials. We litigated this before the trial began, and I don't understand the concern; hearsay is hearsay on both sides. I mean we have -- we have thousands of e-mails in the record between different Government witnesses and different people, and they're admissible because they're not offered for the truth, and I expect the same thing will happen with this witness.
MS. PENZA: Your Honor, that's just frankly not true. Things are admissible for their truth for the Government because there are a lot of co-conspirator statements or statements by a party opponent in our case, so that's why -- what we have been offering, Your Honor.
Additionally, I think what is very notable about Nicole's testimony is that she has testified that she texted kind, loving messages to the defendant. She was in this complicated relationship where there was this period where she tried to separate it from what was going on with DOS, that it was very confusing to her. That -- so I don't think there is going to be significant impeachment on that, so I don't think that Mr. Agnifilo gets to read into the record any -- like those sorts of messages that one might be -- that one might be expecting. That's not impeachment. She's already testified truthfully as to that.
And so what I think Mr. Agnifilo wants to do is embarrass her, read through message after message, and that is pure hearsay and it's improper, and I don't want it happening.
THE COURT: Well, if we get --
MR. AGNIFILO: Your Honor, can I just --
THE COURT: Yes.
MR. AGNIFILO: The fact that I would be out to embarrass a witness, I take personal offense to this.
THE COURT: Oh, really?
MR. AGNIFILO: I do, Judge. And that is not going to help my client, for one. And for two, it doesn't help the jury get to the job that it wants to do.
What I -- what is my job is to establish from this witness what the relationship was like at the time; not looking back at it, not years later, what it was like at the time in sufficient detail so that this jury can understand what it was like at the time. There is not going to be anything embarrassing about it. I am not looking to embarrass anyone.
Judge, and I don't think it's a nice thing -- it's not an appropriate thing to say and it's not a fair thing to say.
THE COURT: Well, there is a line of demarcation that we need to avoid crossing, that is what I am saying. So we will see. If you ask questions that do not meet the standard for impeachment, I will sustain the objection. If they do meet the standard, I will overrule the objection. That is the way we are going to do it. And then, when we get to the next witness, you may have a better sense of where I am on this. I am not going to debate it with you.
Bring in the jury, please.
Oh, first bring in the witness.
(Whereupon, the witness entered the courtroom and resumed the stand.)
(Jury enters.)
THE COURT: Please be seated.
Good morning, members of the jury.
JURORS: Good morning.
THE COURT: All right, you may continue your examination of the witness.
The witness is reminded that she is still under oath.
MS. PENZA: Thank you, Your Honor.
(Continued on the following page.)
N I C O L E, previously called as a witness by the Government, having been previously duly sworn/affirmed by the Courtroom Deputy, was examined and testified further under oath as follows: