2.Hearing on DOS Statements and Limiting Instructions
131 linesMR. AGNIFILO: I'm going to object.
THE COURT: Sustained.
MR. LESKO: Your Honor, may I approach?
THE COURT: Why don't we take or lunch break? All rise for the jury.
(Jury exits the courtroom.)
(The following matters occurred outside the presence of the jury.)
THE COURT: All right. The witness may stand down. Do not discuss your testimony with anybody.
(Witness exits the stand.)
THE COURT: Everyone may be seated. Do you want a sidebar or do you want to do this in open court?
MR. LESKO: We can do it in open court.
THE COURT: Okay. Please be seated everyone. Well, go ahead.
MR. LESKO: Your Honor, we're offering this statement to Mr. Vicente, which is going to be one of a series of facts that he will testify about gathering in the late 2016, 2017 time frame, to show it's affect on his state of mind and this process where Mr. Vicente was gathering facts and was discussing with people. Many of those discussions, by the way, allowed him to piece together the DOS story resulted in him eventually leaving NXIVM, withdrawing from the organization where he had been part of the trusted group for over a decade. And so we're offering it, this in particular, but we'll also offer similar statements to show their affect on Mr. Vicente. And their affect is specifically on his state of mind, his evolving state of mind.
THE COURT: So you're not offering it for the truth?
MR. LESKO: No, Your Honor.
THE COURT: Well, then I think you need to be telling the jury that.
MR. LESKO: Very well.
MR. AGNIFILO: I think that's fine.
THE COURT: As long as that's the point, if you have a proposed instruction to the jury, in connection with this particular portion of his testimony, just discuss it with the other side and give it to me and I'll give the instruction to the jury after lunch.
MR. AGNIFILO: Thank you, Judge.
THE COURT: Okay.
MR. LESKO: Your Honor, I would like to raise one other issue. I don't think we necessarily have to resolve it right now, but I did want to sort of surface the issue for the Court. It's conceivable I may end direct examination of Mr. Vicente today and towards the end of the examination, I -- I expect to be the first time that the Government is intending to introduce nude photographs. And we have pixilated and/or blocked out the sensitive portions of those photographs. But we certainly didn't want to surprise the Court with those photographs and we would appreciate guidance from the Court. We can show them to you. We intend to just publish them to the jury and we would orient the monitors so that members of the public couldn't see the photographs. But we do want to be very sensitive in this area and particularly are respectful to some of the issues raised with at least two of our jurors. So any guidance from the Court and again, we can submit the proposed photographs for review by the Court. And I believe defense counsel has them.
THE COURT: Well, we've already established the procedure with the cross-examination of Sylvie. We can use the same basic approach.
MR. LESKO: We didn't publish those photographs, if I remember correctly, to the jury. This would be the first.
THE COURT: Oh, that's right. Well, we're going to publish them to the jury but we won't publish them in the public. We can publish to the jury without publishing to the public --
MR. LESKO: Very well.
THE COURT: -- on our system.
So you'll just have to let me know when you're ready to do that.
Is there an objection?
MR. AGNIFILO: No, there's no objection. The only clarification I'll make, no problem with the proposed, we have not seen the pixilated version, but we can probably do that over lunch. Why don't you do that?
MR. LESKO: Very well, thank you.
THE COURT: All right. Thank you.
Take an hour for lunch.
(Recess taken.)
A F T E R N O O N S E S S I O N
(Time noted: 2:00 p.m.)
(In open court; Jury not present.)
THE COURT: Please be seated.
(Defendant enters the courtroom.)
THE COURT: Oh, just have him wait.
All right, there's a letter from the government, a motion in limine; have you seen it?
MR. AGNIFILO: I got it few minutes ago.
THE COURT: Do you have any intention of raising one of those matters in connection with your cross-examination?
MR. AGNIFILO: So what I would like to do -- I'm not going to -- we --
THE COURT: We don't want to say what they are.
MR. AGNIFILO: No, I'm not going to say what they are.
In regard to the letter that Mr. Vicente wrote where he uses a hateful word, I would not want to --
THE COURT: But you're not going to talk about it, so we're not going to talk about it.
I just want to know, do you want to respond in writing to this?
MR. AGNIFILO: I will -- I will give the Court an answer. I'm just trying to work this out with a compromise, and I'll give Your Honor an answer by 7:00 tonight.
THE COURT: Well, I'll sit by the fax machine.
MR. AGNIFILO: Okay.
THE COURT: Then I'll give you an answer in the morning, if you haven't worked it out.
MR. AGNIFILO: I think we can work it out.
THE COURT: Well --
MR. AGNIFILO: If we can't, I'll have something to Your Honor by 7:00.
THE COURT: Yes.
MS. PENZA: Yes, Your Honor.
If we could just address the issue of the instructions that came up before we broke for lunch.
THE COURT: Oh, yes, the instruction. Yes. Yes.
MS. PENZA: So what -- Mr. Lesko expects that this witness will testify regarding two categories of statements about DOS that were made. And so there are statements by coconspirators. And those include Keith Raniere, Lauren Salzman, and Alejandro Betancourt.
I believe that's the universe of the ones that we're expecting, but there could be others, which we would expect to be offered for their truth.
And another category by namely former DOS members, but there could be others about DOS which are being offered for their effect on Mr. Vicente and --
THE COURT: I understand the distinction.
MS. PENZA: So what we propose, Your Honor, because there are going to be a number of these.
THE COURT: Yes.
MS. PENZA: Is that at the end of the next section, and Mr. Lesko can say when we get there, but that Your Honor give an instruction at that time, giving the standard language that there will be further instruction regarding how to consider evidence at the end of the trial, but that for now the statements made by Mr. Vicente that were said to him by, and we can give you the name of those individuals, should not be offered for the truth but only.
THE COURT: So what should do I now?
MR. AGNIFILO: I have something I can give to the Court.
THE COURT: Have you discussed with the other side?
MR. AGNIFILO: No. They've been doing other things.
MS. PENZA: We've been working on our instruction, Your Honor, and so we didn't get to, but we're happy --
THE COURT: At the end of the next section, we'll take a break and you can show me what you've done.
MS. PENZA: Sounds good.
THE COURT: I like things in writing so that I don't --
MR. LESKO: Your Honor, if I could be precise. I think actually at the end of the session would be the end of his direct examination. That back part of his direct will involve many of these discussions.
THE COURT: Right.
MR. LESKO: And I think by the end of that we will have a clean list of non-coconspirators who made statements about DOS to Mr. Vicente, and I think it will be pretty clear who's who.
THE COURT: Why don't we just at that point before you complete it, why don't you finish doing your questions, you can take a sidebar and you can tell me who's who. Give me the list. We'll go over it with the defense, and then I'll make whatever statement that we want.
MR. AGNIFILO: I would prefer the instruction come before the statements are elicited so the jury can understand as they're hearing evidence. This is not being considered for the truth.
THE COURT: Well, I don't know who these people are who are not coconspirators, who the government claims are not coconspirators. I have a good idea but, you know, there may be names that I don't know who coconspirators alleged by the government and --
MS. PENZA: I don't think it makes sense, Your Honor, to have Your Honor listening what he expects the witness to say before the witness has said it.
THE COURT: What is it that you wanted me to say?
MR. AGNIFILO: This is what I'd like Your Honor to say:
I'm permitting this witness to testify about what certain other people said to him. I'm allowing this because these statements of other persons are relevant to Mr. Vicente's state of mind, but are not being offered for the truth of the statements themselves; therefore, you are to consider these statements only to the extent that they have an impact on Mr. Vicente's state of mind and for no other purpose.
THE COURT: Well, I can make that statement in connection with specific questions about specific individuals. In other words, instead of a blanket statement, I can make an individual statement as to a specific individual that he's testifying about.
MS. PENZA: We just don't think it makes sense to give that sort of instruction right now, because it's going to be piecemeal the way these statements come in.
So there's a statement that he's about to elicit regarding Debra, but then there are going to be subsequent statements from other members of DOS. But interspersed within that will be statements by coconspirators.
And so we don't want to leave the jury with the misimpression that when he then has a conversation with Mr. Raniere about what Debra said to him, that that is not offered for its truth.
THE COURT: No, I understand that. But -- but how will the jury know which is -- which is probably the issue the defense is concerned about, that there will be statements interspersed among the statements of coconspirators with statements of alleged victims.
MS. PENZA: And that's why, Your Honor, we thought that at the end it makes the most sense because by then we'll have a list of those individuals.
We could --
THE COURT: Are you going to -- are you going to ask me to state who the individuals are?
MS. PENZA: Well, I think we actually have the list of the individuals whose testimony will come -- that we will believe would fall into that bucket.
The concern would be just that it is unusual for Your Honor to say: We expect that Mr. Vicente is going to testify about statements made to him by this person, this person, this person, and this person. And that those statements, but all of the others should be -- but then the government would like a specific instruction that all of the other statements are to be considered for their truth.
MR. AGNIFILO: I object to the government's proposal. My request is that we read this instruction to the jury now and leave it at that.
I don't know who coconspirators are because I requested that before the trial and they refused to give it to me. So I'm learning who the coconspirators are and who they aren't as we go, just like the Court is.
So in the absence of that, and I most respectfully would not ask the Court to marshal the evidence and the government's theory about who's a coconspirator and who's not, it's our position nobody's a coconspirator.
So our position is since nobody's a coconspirator, that we would like this instruction read to the jury before these statements are heard by the jury.
MS. PENZA: We think that statement would be entirely misleading, Your Honor. They are going to be statements by the defendant, by Lauren Salzman, by Alejandro Betancourt at least that would be coconspirator statements in furtherance of the conspiracy about DOS made to Mr. Vicente. And the jury should not be under the misimpression that those are not admissible for their truth.
THE COURT: Can't you be cabin his testimony regarding non-coconspirator statements separate and apart from statements made by or to -- made by coconspirators in her view.
MR. LESKO: I think I could, with a little bit of potential meeting, I could cabin the statements that were made -- let's use Debra specifically -- by Debra to Mr. Vicente, and then subsequently make a clean break and ask about discussion with the defendant. So that I think there will be sort of two sets of discussions.
MR. AGNIFILO: I have no objection. To accomplish that purpose, I think it's perfectly appropriate.
MR. LESKO: I have to engage in sort of the same process with respect to -- I think there are about four other non-coconspirators who fall into this category, so I have to do a similar process for those other conversations.
THE COURT: So at the point we go into the non-coconspirator back and forth, I can give the instruction on that without going into the question of the statements made that you allege are coconspirator statements and let the defense on cross-examination ferret out; you know, it's a perspective that these aren't really coconspirators, because coconspirator statements can be taken for the truth under the rules.
So do you want to give me what you have?
MR. AGNIFILO: Yes, sir.
MS. PENZA: We would also -- if I may just see what Mr. Agnifilo is saying that we're offering it for.
THE COURT: Absolutely.
MR. LESKO: While Ms. Penza is doing that, I think Your Honor said this, sorry about belaboring the point.
THE COURT: That's okay.
MR. LESKO: This proposed instruction we would ask that it be specifically tailored to address Debra's statements to Mr. Vicente, and not a blanket instruction where -- which could be, as was indicated earlier, misleading.
THE COURT: Well, at what point are you going to ask about what Debra said?
MR. LESKO: That's my next question.
THE COURT: And Debra is not -- is not a -- you don't view her as a coconspirator?
MR. LESKO: No, Your Honor.
MS. PENZA: We don't think state of mind and effects on Mr. Vicente are the same thing, so we would want both of those.
And really, the only reason hearsy in inadmissible is when it's for its truth. We don't think it should be so narrowly cabined as to what it is, in fact, admissible for. And so we would like it to say state of mind and effects on Mr. Vicente, because it isn't just his state of mind.
THE COURT: I understand. I agree with that, by the way, so let's just get it done.
MR. AGNIFILO: Your Honor, then change it for no other purpose.
MS. PENZA: No, we don't like it for no other purpose. It already says it's not admissible for its truth. That's the rule.
THE COURT: That's the only other purpose.
MR. AGNIFILO: Then that's what it should say, that -- so I'll give it to Your Honor so Your Honor can see it.
(Proffering.)
(Pause.)
THE COURT: Yes.
MR. AGNIFILO: So the only thing I would say is that there's two parts to that short instruction. One, why it's being admitted and what they can use it for.
So as long as Your Honor makes it clear that -- they -- if Your Honor wants to say they can use it for its effect on Mr. Vicente but not for the truth of the statement in our proposed instruction, that's fine with us. So just be, comma, and not for the truth of the statement and --
THE COURT: Well, that's what is being said here.
MR. AGNIFILO: No, but there's -- the instruction breaks it up into why the Court's admitting it, first part, and what the jury can do with that evidence. That's why there's two separate sentences.
THE COURT: So you only want -- I'm not understanding, really. Let me go sentence by sentence here.
I'm permitting this witness to testify about what Debra said to him. I'm allowing this because these statements are relevant to Mr. Vicente's state of mind but are not being offered for the truth of the statements themselves.
MS. PENZA: That --
THE COURT: Stop.
Now, is that a problem?
MS. PENZA: The government's position is that it's not just state of mind. Because state of mind is very narrow when you actually look at the law. It already takes a lot action in response to --
THE COURT: And you want to add: And their effect on Mr. Vicente.
MS. PENZA: Correct, Your Honor.
THE COURT: Therefore, you are to consider the statements only to the extent that they have an impact on Mr. Vicente's state of mind and their effect on Mr. Vicente.
MS. PENZA: That's fine with the government.
THE COURT: I can live with that.
MR. AGNIFILO: But --
THE COURT: Now what?
MR. AGNIFILO: But may not for the truth of the statements. Because there's -- there's two sentences, and I just want them to be parallel to what they can do and can't do.
THE COURT: So here's what we're going do. For every witness -- I'm sorry, for every question regarding an individual who do you not allege is a coconspirator, you'll tell me, and I'll read this as to that witness, and that's what we'll do.
I'll read the whole thing and that way it's all there and the jury can deal with it accordingly, if they remember.
I think it's very difficult for the jury to distinguish these things, but these are the rules of evidence, and I need to cabin these answers in the appropriate way, and this is the way to do it.
So we'll start with Debra, right? Debra's next? Questions on Debra.
Let's bring in the witness.
Thank you, everyone.
MR. AGNIFILO: I'm sorry, Your Honor?
THE COURT: I said thank you.
MR. AGNIFILO: Yes, thank you.
(Witness resumes the stand.)
THE COURT: Let's bring in the jury.
Okay, Mr. Agnifilo, don't forget 7 p.m. tonight.
MR. AGNIFILO: 7 p.m.
(Jury enters the courtroom.)
THE COURT: Please be seated, everyone.
All right, the witness is reminded he is sill under oath.
Mr. Lesko, you may continue with your examination of the witness.
MR. LESKO: Thank you.