3.Legal-Fee Trust: Charge Conference and Limiting Instruction
46 linesMR. AGNIFILO: I have nothing else, Judge.
THE COURT: All right. Anything else?
MR. LESKO: Nothing, Your Honor. May we have a brief sidebar though?
THE COURT: Yes, we will.
MR. LESKO: Thank you.
THE COURT: The witness is excused.
You may stand down.
(Witness excused.)
(Continued on next page.)
(Continued on next page.)
(In open court.)
THE COURT: All right. We're going to take a mid-morning break a little early.
All rise for the jury.
(Jury exits.)
THE COURT: All right. Ten minutes.
MR. AGNIFILO: Before we go, our request would be that you give whatever agreed upon proposed instruction regarding the trust now, not as a jury instruction, but as something, you know, at this point.
THE COURT: An instruction?
MR. AGNIFILO: Just in how to evaluate the trust.
THE COURT: Well, do you have a suggestion?
MS. PENZA: Your Honor, we don't believe one is necessary but we are, we do object to the statement in here that the government -- I don't think it's necessary to inform them that the government and the Court were advised at an early stage of the proceeding of the financial arrangements.
THE COURT: You have got to go slower.
MS. PENZA: Excuse me?
THE COURT: Speak slower.
MS. PENZA: Yes, Your Honor.
THE COURT: Speak up. People can't hear you in the back.
MS. PENZA: And then the statement, "Therefore it is important you keep in mind there is nothing about this financial arrangement that is improper and it is not being offered for that reason," we object to that sentence.
We are fine with the idea that there is nothing improper about one party paying for the representation of another party, but we don't agree necessarily that there is nothing about this financial arrangement that is improper. So I think that is a misleading statement.
THE COURT: All right. My problem is that while that first statement is accurate, the one party, one person could pay for somebody else's legal representation, it happens all the time, all right, but in the circumstances of this litigation, there has been no evidence presented one way or another as to whether something inappropriate was the genesis of this arrangement to have Clare Bronfman pay for the representation of the other defendants in the case. I don't know that. We haven't had testimony on that.
I think the general presumption is fine, but to make a bold statement without any evidence which is why I asked the question of the former IRS agent after receiving your proposed charge on the subject, I don't know that I can be telling the jury one way or another whether in this circumstance, nothing untoward happened. I mean, the fact is it is very unusual to have that sort of situation where one defendant is paying for the representation of five other defendants. I have asked informally about this and I never received a positive response from any of my colleagues, but that's just hearsay.
If we were to have a separate trial on the question, we might learn something or not learn something, but I don't think it is my job to tell the jury one way or the other whether in these circumstances, there is anything about the arrangement which is inappropriate. How would I reach that conclusion to share that with the jury?
MR. AGNIFILO: Well, one of the ways that the Court endeavored to reach that conclusion would be in the Curcio hearings we had. I know that's -- the point of the Curcio hearing isn't an objective answer to the question. I appreciate that. It's putting the defendant on notice of a potential conflict. And I, I don't -- I mean, maybe the way that Your Honor handled it with the Special Agent, former Special Agent is, you know, the most that we're going to do, but I did request the charge and I -- but I understand what the Court is saying. I don't want to push the envelope and, you know, Your Honor asked the former Special Agent Guerci the question and Special Agent Guerci gave an answer.
THE COURT: I think that -- so I think that the general statement at the beginning of that proposed charge is appropriate, but I don't want to give the jury the impression that the Court has some understanding of whether, in every manifestation of this arrangement, everything was done lawfully, not for an improper purpose. That's just going too far. I had a Curcio hearing. I didn't put anyone, you know, through extensive questioning about their discussions with their lawyers, their discussions with other defendants or proposed defendants. I think that would have been inappropriate. So, I think, as much as I can do is say that it's not -- and I don't think that the jury would, I think the jury would reach the conclusion, I guess, that if the Court says there is nothing illegal about a third party, another person paying for the representation of a defendant, that should be enough.
MR. AGNIFILO: That's fine. That's fine.
THE COURT: All right.
MR. AGNIFILO: Very good, Judge.
MS. PENZA: Thank you, Your Honor.
MR. AGNIFILO: Is that something that Your Honor is open to giving at this point rather than in the final instructions?
THE COURT: Oh, you want it now?
MR. AGNIFILO: I do. I do. That's why I, that's why I sent it to you at whatever ungodly hour.
THE COURT: It's not unusual in this case.
MR. AGNIFILO: No, it's not.
THE COURT: Any objection? I really don't have an objection. I can do that right after the break.
MS. PENZA: We don't have an objection.
THE COURT: Yes. I'm happen to do it.
MR. AGNIFILO: Thank you.
THE COURT: Okay. We'll take ten minutes.
(Recess taken.)
(In open court; jury not present.)
THE COURT: Let's bring in the jury.
(Jury enters.)
THE COURT: Please be seated.
Members of the jury, you will recall that during the testimony of Investigator Richard Guerci, there was evidence presented regarding a $14 million irrevocable trust created by Clare Bronfman to assist with the legal fees of other individuals.
Please be advised that there is nothing improper about one party paying for the legal representation of another party. You may, if you see fit, consider this financial arrangement as part of the government's evidence that an enterprise existed. That is an issue solely for you to consider, but I am admitting information of this financial arrangement for that purpose and for no other.
All right. The government may call its next witness.