3.CART Notes Disclosure and Rulings on Prosecution Exhibits
171 linesMR. DEROHANNESIAN: This would be a good time for a break.
THE COURT: Okay, let's take our morning break.
All rise for the jury.
(Jury exits.)
THE COURT: All right. Sir, you may step down. Do not discuss your testimony with anyone.
(Witness steps down.)
THE COURT: Everyone may be seated.
(Witness exits the courtroom.)
MS. HAJJAR: Your Honor, Ms. Donnelly is here and she has brought with her all the aggregate notes involved in this case. We -- we can provide them to counsel and put her on the stand, if necessary, to bridge that gap.
THE COURT: You like to see the notes?
MR. DEROHANNESIAN: That's right.
THE COURT: Just show defense counsel the notes so that -- how many notes are there?
MS. HAJJAR: I'm not sure, Your Honor. I've never seen them. She's on her way with them for the two --
THE COURT: Oh, she's not here yet?
MS. HAJJAR: I don't think so.
MS. PENZA: I didn't think so.
MS. HAJJAR: I think she's on her way, Your Honor.
THE COURT: From 26 Federal Plaza?
MS. HAJJAR: She's coming from 26 Federal Plaza, yes.
THE COURT: It's not a long trip.
MS. HAJJAR: No.
MS. PENZA: It isn't, Your Honor, but the notes themselves, she had -- they were not finalized and so there is a process where she had to obtain them.
Additionally, CART Analyst Flatley is in Africa right now, so his notes had to be obtained as well.
So I know that Special Agent Lever has been working diligently to get it all organized, but I'm not sure. It's not just a matter of getting over from 26 Federal Plaza.
THE COURT: How much longer do you have?
MR. DEROHANNESIAN: In terms of my plan, about 20 minutes. However, I would like to look at the notes before I complete it.
THE COURT: I understand.
MR. DEROHANNESIAN: And I don't object to being broken up either. If my cross-examination is broken up, it's a logical time to do it.
THE COURT: I think we ought to do it as one unit.
MR. DEROHANNESIAN: Okay.
THE COURT: So we will simply have to wait.
And then your next witness after this?
MS. HAJJAR: I believe it would be Special Agent Weniger, unless to the extent the notes present an issue we'll call Virginia Donnelly to explain that further. But if not, our plan was Special Agent Weniger, case agent.
THE COURT: And how long will he be on the stand on direct?
MS. HAJJAR: Approximately two hours, Your Honor.
THE COURT: All right, we still might get done today.
Why don't you let Mr. Reccoppa know when the notes arrive.
MS. HAJJAR: Will do.
THE COURT: All right, and provide them to the defense.
MS. HAJJAR: Yes.
THE COURT: Okay, thank you.
(The defendant exited the courtroom.)
(Judge NICHOLAS G. GARAUFIS exited the courtroom.)
(Recess taken.)
(In open court - jury not present.)
(Judge NICHOLAS G. GARAUFIS entered the courtroom.)
(The defendant exited the courtroom.)
THE COURT: All right, case on trial.
What is the status?
MS. HAJJAR: Your Honor, Ms. Donnelly is here. We have two folders of her notes in photographs. I don't expect it will take long for the defense to review, but a little while. We're copying them now for defense counsel.
THE COURT: Well, I can send the jury to lunch for half an hour, and then we can resume --
MS. HAJJAR: That may makes sense, Your Honor.
THE COURT: -- at like 20 to 1:00, and that way defense will have a chance to look at the materials and to complete the cross-examination and any redirect, and then move on to the next witness and try to get it all done today.
MS. HAJJAR: Yes, Your Honor.
MS. PENZA: Yes, Your Honor.
THE COURT: Any objection?
THE COURT: All right, that's what we will do. Thank you very much.
We'll advise the jury.
MR. DEROHANNESIAN: You said about how long?
MR. AGNIFILO: 20 to 1:00.
MR. DEROHANNESIAN: 20 to 1:00.
THE COURT: 20 to 1:00.
MR. DEROHANNESIAN: All right.
THE COURT: Okay; thank you.
(The defendant exited the courtroom.)
(Judge NICHOLAS G. GARAUFIS exited the courtroom.)
(The defendant exited the courtroom.)
(Luncheon recess taken.)
(Afternoon session continued on the following page.)
AFTERNOON SESSION
(In open court - jury not present.)
(Judge NICHOLAS G. GARAUFIS entered the courtroom.)
(Defendant entered the courtroom.)
THE COURT: All right, just a reminder, I need the language on evidence seized pursuant to a search.
MS. HAJJAR: We'll send it tonight, Your Honor.
THE COURT: Good. Okay.
And where are we about the notes?
MS. HAJJAR: Your Honor, we've given a copy of the notes -- of Ms. Donnelly's notes to -- and Mr. Flatley's notes to counsel, who has reviewed them.
MR. DEROHANNESIAN: I have. I'm prepared to go forward.
THE COURT: Okay. We are just waiting for the jurors to come up from lunch, and then we will get started.
Everyone may be seated. Don't move. We are going to keep going.
About how much more do you have for this witness?
MR. DEROHANNESIAN: 20, 25.
THE COURT: Okay.
MR. DEROHANNESIAN: I think maybe five minutes with the documents I got.
THE COURT: Okay, thank you.
MS. PENZA: Your Honor --
THE COURT: Yes.
MS. PENZA: -- we have a few documents that are in dispute for Special Agent Weniger. Other than that, I think we are going to be able to enter all the remaining documents on consent before his testimony begins.
Though, I would ask for a few more minutes before I put that on the record with Mr. Agnifilo and Ms. Geragos, just to make sure there is no question --
THE COURT: Okay. Go ahead.
MS. PENZA: But would you -- would Your Honor like to hear first about the documents in dispute?
THE COURT: What is in dispute?
MR. AGNIFILO: All right, Judge. So we've consented to about 95 percent of things.
What we haven't consented to is Government Exhibit 668, which is a Times Union article from February 12th, 2012.
THE COURT: Well, what is that about?
MS. PENZA: So, Your Honor, we're not putting in the entire article. This is just the cover page of the article.
And the reason it's important is because, as with -- as with the Forbes article, the Albany Times Union article was something that caused a lot of -- in terms of -- in terms of the Government's proof regarding the enterprise and actions that were taken, a lot of that centers around the Albany Times Union, including several of its reporters, et cetera.
And so the front page shows that this was a big deal. This was the first -- this was the lead story in the Albany Times Union. It shows the date, and it shows that there was going to be this four-part series.
So it is for the timing of these articles. We are not including the content of the articles in it.
THE COURT: What is the problem?
MR. AGNIFILO: She can get testimony about the date of the article. Ask the witness what date was the article.
MS. PENZA: I think it's -- if Your Honor -- if Your Honor sees it, I think it's important to see what this actually was, like it -- that this was a big deal.
This wasn't just some small article in the middle of the newspaper. This was the lead story and it was going to be covered for four days in a row. And so I think that shows the motive behind, basically, targeting the authors of this article.
THE COURT: You are going to ask the witness about this?
MS. PENZA: Yes, Your Honor. Just -- not -- just to put that one page into evidence and ask about that.
THE COURT: Could I see it?
MS. PENZA: Yes, Your Honor. You have the one --
MR. AGNIFILO: Your Honor, actually, what I -- what might be easier is, I will give Your Honor -- it's only maybe five exhibits. So I can just give them all to the Court.
THE COURT: Thank you.
MS. PENZA: And that will be --
THE COURT: All right, next.
MS. PENZA: I don't actually have it in front of me. This one --
MR. AGNIFILO: So the next one, so the next one I know, Judge, is there is an unofficial transcript from RPI.
THE COURT: And it has been -- there is a declaration from the secretary and general counsel?
MR. AGNIFILO: Of the unofficial transcript.
First of all, I don't know what the relevance of the transcript is. And second of all, I don't know what the provenance of the unofficial transcript is.
MS. PENZA: Well, the providence, Your Honor, is evident from there. And we -- so Special Agent Weniger will testify that we provided a subpoena to RPI, and that we received this record in response.
The relevance is, Your Honor, we are putting in, without objection, the defendant's biography that was listed on the NXIVM website, which -- which lauded him for his three degrees from RPI and his taking of graduate-level math classes and physics classes. And I think his mediocre-to-failing grades in those classes is certainly relevant.
THE COURT: And the next?
MR. AGNIFILO: Your Honor -- I gave you my only copy, Your Honor, unfortunately.
MS. PENZA: I --
THE COURT: There is something here -- hold on.
MS. PENZA: Can you give us a little bit? Then we'll be able to tell you.
THE COURT: I will give you a clue.
MR. AGNIFILO: Okay, Judge.
THE COURT: There is an e-mail sent from Joe J. O'Hara --
MS. PENZA: Oh, we are not seeking to admit that, Your Honor.
THE COURT: Well...
MR. AGNIFILO: We are making life easier already.
THE COURT: And then there is a Michele e-mail to Allison Mack.
MS. PENZA: Yes, Your Honor. So at the -- it -- as you can see, it -- this is a listing of Michele's collateral. Michele was Allison's slave. We are putting in -- or -- Your Honor, a DOS -- labeled a DOS slave, of course.
THE COURT: I see.
MS. PENZA: But she was -- this is her listing of collateral, but at the bottom she lists what she is still demanding of her own slave, Michele's own slave, Souki. And so that's a co-conspirator.
MR. AGNIFILO: I agree, that's a co-conspirator statement.
THE COURT: What is that?
MR. AGNIFILO: I agree, it's a co-conspirator statement. We don't object.
THE COURT: Okay, moving right along.
And then Meier, Barry Meier?
MS. PENZA: Yes, Your Honor. So the relevance of -- we are not offering that for its truth. I don't think there actually is any truth or falsity to it.
This is on October 10th, I believe, Your Honor, that Mr. Raniere was contacted by Barry Meier of the New York Times letting him know, again, that this was his last chance, basically, to comment on a forthcoming article.
The very next day is the day that Jay gets the threatening letter that we put into evidence from the Mexican attorney. And so the -- in our view, the timing is extremely relevant of the notice to Mr. Raniere about the forthcoming New York Times article.
THE COURT: There was a New York Times article in 2017?
MS. PENZA: October 20 -- yes, Your Honor. October 2017, that was the one where Sara showed her brand, and that's...
THE COURT: And you oppose that?
MR. AGNIFILO: I just -- I think it's -- I think it's hearsay and it raises sort of a troubling inference that somehow Mr. Raniere would have had an obligation to respond, because the article -- the --
THE COURT: No one has an obligation to respond to the media.
MR. AGNIFILO: I understand, but --
THE COURT: You know that would create the -- I mean, you can ask the question on cross-examination.
MR. AGNIFILO: Okay.
THE COURT: That's about it?
MS. PENZA: I think that's it for the objections.
THE COURT: So you want to put in this face page here (indicating)?
MS. PENZA: Just that, yes, Your Honor.
MR. AGNIFILO: Judge, we just -- we'd be happy to consent to the timing of it. I just don't think that the article is relevant. And I think --
THE COURT: Well, it is not the article, it's just the front page.
MR. AGNIFILO: Well, but it -- that is even worse, in a sense, because, you know, now we have him on the front page, leaving the jury to speculate about things that really are neither here nor there or -- nor are evidential, especially when we're willing to stipulate to the timing.
THE COURT: You can show the witness that and inquire about it, and I think that would be enough.
MS. PENZA: So we won't admit that --
THE COURT: Don't put that in.
MS. PENZA: Okay. Fair enough, Your Honor.
THE COURT: The rest of the stuff can come in.
MS. PENZA: The one last thing, which I failed --
THE COURT: There is more? I have got a jury that I forced to come back.
MS. PENZA: Sure. No, no, no. There's no --
THE COURT: To eat quick and come back. And I don't --
MS. PENZA: No problem, Your Honor.
THE COURT: -- I don't want people throwing roast beef sandwiches at me because they were forced to eat lunch before lunch.
MS. PENZA: I think we're -- we've made excellent progress. I think things will be very streamlined for --
THE COURT: I am not a school teacher anymore, I got out of that business.
MR. AGNIFILO: You thought.
THE COURT: I thought, I was hoping.
MR. AGNIFILO: Yeah.
THE COURT: So what else is there?
MS. PENZA: The last thing I was just going to say is we have a hard copy of the Forbes article, and we were just going to use it as a -- for demonstrative purposes today. We don't need to admit the actual article.
THE COURT: All right, that is fine.
MR. AGNIFILO: Very good.
THE COURT: All right.
MR. AGNIFILO: Can I retrieve my --
THE COURT: Of course. Please, please.
MR. AGNIFILO: Thank you. Thank you, Your Honor.
THE COURT: Be my guest.
MR. AGNIFILO: Thank you very much.
THE COURT: All right, are we ready with the jury?
Okay. Please bring in the witness.
(The witness entered the courtroom and resumed the stand.)
(Jury enters.)
THE COURT: All right, please be seated, everyone.
First of all, let me thank the jury for agreeing to the adjustment of the schedule a little bit. I thought that because we had some administrative details to deal with, we would rather deal with them while you were having lunch, and then move ahead with the trial.
So, again, the parties and I thank you for accommodating all of us.
You may continue your --
MR. DEROHANNESIAN: Thank you.
THE COURT: -- cross-examination of the witness.
The witness is reminded he is still under oath.
(Continued on the following page.)
BRIAN BOOTH, 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: