5.Telegram Messages: Authentication and Refreshing Nicole's Recollection
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THE COURT: Yes.
MR. AGNIFILO: Can we take it now?
THE COURT: Sure. We can take it now. We will do 45 minutes for lunch. All rise for the jury.
(Jury exits the courtroom.)
THE COURT: All right. The witness may step down. Do not discuss your testimony with anyone.
(Witness steps down.)
THE COURT: Everyone maybe seated.
Go ahead. You have the floor.
MR. AGNIFILO: Thank you, Judge. I absolutely must be permitted to examine through this witness what this witness actually said in realtime to Mr. Raniere about her desire to have an ongoing, intimate relationship with him. There's no basis to preclude this evidence.
THE COURT: All right. I hear you.
Why would there be a basis? Just asking.
MS. PENZA: Why would there be a basis to permit these?
THE COURT: To preclude the evidence.
MS. PENZA: To preclude the messages?
THE COURT: Yes.
MS. PENZA: So, Your Honor, first of all, there's no authentication of these. These are screen shots of messages. It says deleted account at the top. I don't know whether there's a back and forth that's missing. The witness has said there are some she remembers. If there are specific messages that she remembers and that are otherwise admissible and Mr. Agnifilo can lay the proper foundation, that's fine. But text messages in general, even if it's the only witness' statement, are hearsay. So he is stuck with her answer on impeachment.
If he asks her have you said multiple times that you want to have sex with the defendant and he tries to refresh her recollection with something that she has never seen before and she doesn't recognize and it doesn't refresh her recollection, he's stuck. That's the way the rules of evidence work. If the defendant wishes to take the stand and he says these are her messages and there's some other way of them coming in, then maybe there's a proper foundation laid. But there certainly has not been anything that I've seen so far. So to go from her looking at them, saying I recognize some, can't recognize the others, to having Mr. Agnifilo offer entire set of text messages into evidence just is nonsensical.
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(Continuing.)
MR. AGNIFILO: Your Honor, I think it's absolutely relevant and I think she laid a foundation. She said that she deleted the account, that's why it says deleted account. So that's actually consistent with it being hers.
There are pictures, photographs of her that she's taking of her at a time when she has a broken arm. There are going to be other things that -- and I can -- I can more than amply lay the foundation for different things that she did, that she would know of, that she is writing in these messages.
It's -- it's -- it is meant to show a relationship, a relationship in realtime. A relationship between this witness and my client, and that is absolutely relevant when this witness is being put up as a sex-trafficking victim and she has testified that she's begrudgingly in this relationship, she's not really wholeheartedly in this relationship.
Why are we concerned about letting the jury see the actual evidence, to see the actual texts? This is what juries do best. They will figure out whether this is an authentic, genuine, from the heart --
THE COURT: No, no, no, no. If you want to authenticate it, bring in somebody from the company to say that this is an authentic part of this individual's account and then the authenticity of it, at least, is laid.
She did not authenticate it. She said some of it sounds right and some of it sounds like I don't know.
MR. AGNIFILO: Judge, I can ask specific questions about specific -- the reason we got this far is because I asked her a question that I think I have every right to ask about did you ever say this certain thing to the defendant, and the objection was sustained, which at a sex trafficking trial I don't understand.
THE COURT: Wait a minute. You asked her a question about whether she ever asked to have sex with the defendant.
MR. AGNIFILO: Right.
THE COURT: And she was allowed to do that and she said: I remember one occasion. I think that's what she said.
And then I expected that you were going to put a document in front of her or several documents and ask her in order to refresh her recollection that she did it like five times or three times or eight times. That is the way to do it. I mean that is the way we do it in other trials.
MR. AGNIFILO: Judge, I can also --
THE COURT: Why are we not doing that here?
MR. AGNIFILO: Because that's not the only way to do it. Another way to do it --
THE COURT: That's my way.
MR. AGNIFILO: So, Judge, then I gave her the messages. That's why she ended up getting the messages. I showed her the message on the ELMO.
THE COURT: You gave her a pile of documents. You did not identify a page.
MR. AGNIFILO: At first I did.
THE COURT: You let her look through a whole pile of documents, so then if she recognizes that page or a page as being hers and she looks at it, you point it out to her, and she says: That refreshes my recollection, you know, on such and such a date I asked him to have sex with me and on such and such a date I asked him to have sex with me, and so on. That is refreshing her recollection. It does not mean you can put in all these documents that she doesn't have.
MR. AGNIFILO: Judge, this is a witness who does not want her recollection refreshed. And this is a witness who deleted this account for a reason. We are starting from a standpoint of a witness who deleted her own account. She doesn't want her recollection refreshed and I don't have to accept her answers. That's why I -- and the way it happened, Judge, is I showed her a specific page and I showed her the page before it so she could see the date and she said: My name's not on this.
So then I gave her the entirety of the chats and she said, yes, some of these I remember and some of these is me because it's -- it's me taking a photograph of my broken arm.
THE COURT: Right, and specifically you could have then gone to the next question and said, here's page 22, do you recall having said this on such and such a date in a text message using -- Telegram?
MR. AGNIFILO: Telegram.
THE COURT: Never heard of it, but okay.
-- Telegram to the defendant, and she can either say yes or no and you are stuck with her answer.
MR. AGNIFILO: But I don't --
THE COURT: That's the way it works.
MR. AGNIFILO: I don't think I am stuck with her answer when I have a chat from her. I am not stuck with her answer. I have her chats that she deleted. She should -- she should not be permitted to delete chats with the defendant because she doesn't like the content of the relationship. She doesn't like the truth of the relationship, so she deletes the chats and then I'm stuck with the fact that she deleted the chats. That's not fair.
MS. PENZA: Your Honor, may I make a record, please?
THE COURT: Sure.
MS. PENZA: I think it's rich that this argument is being made when the defendant's phone is being hidden in Mexico and that's why we're stuck with screenshots of the phone.
THE COURT: Yes, where is the phone anyway?
MR. AGNIFILO: I don't have the phone.
THE COURT: Surprising.
MR. AGNIFILO: It's surprising or not.
THE COURT: You have no idea where it is?
MR. AGNIFILO: I don't know where the phone is.
MS. PENZA: Well, then it certainly --
THE COURT: How did you get the screenshots?
MR. AGNIFILO: We got them early on in the case.
THE COURT: Well, you got them early on from --
MS. PENZA: From whom?
THE COURT: -- from ether?
MR. AGNIFILO: Judge, you know --
THE COURT: Look, this is not a joke.
MR. AGNIFILO: I'm taking as this serious as I've taken anything.
THE COURT: What I am telling you is if you are going to secrete the source of this evidence, then you are stuck with my ruling and that's it.
I am not playing games with this defendant or with anybody else in this courtroom.
MR. AGNIFILO: Judge --
THE COURT: You can ask and let her answer, and then you can argue if you believe that she is not being forthright, you can argue that to the jury on your closing argument. That's it.
We'll take 40 minutes for lunch.
MS. PENZA: Thank you.
(The defendant exited the courtroom.)
(Judge NICHOLAS G. GARAUFIS exited the courtroom.)
(Luncheon recess taken.)
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A F T E R N O O N S E S S I O N
(In open court - jury not present.)
(Judge NICHOLAS G. GARAUFIS entered the courtroom.)
(Defendant entered the courtroom.)
(Witness resumed the stand.)
THE COURT: Let's have a sidebar.
(Sidebar held.)
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(Continued on the following page.)
(In open court - jury present.)
THE COURT: Okay, let's bring in the jury.
(Jury enters.)
THE COURT: Please be seated, everyone.
You may continue your cross-examination. I remind the witness that she is still under oath.
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NICOLE, 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: