3.Crawford Objection and DOS Recording Authentication
67 linesTHE COURT: I think we should break now.
LAUREN SALZMAN: Yeah.
MS. HAJJAR: Yes, Your Honor.
THE COURT: All right, members of the jury, we're going to recess for the evening.
Let me remind you that it is very important that you follow my instruction not to discuss the case with anyone, not your family, your friends, your business associates or your fellow jurors.
In addition, you must not read, listen to, watch or access any accounts of the case on any form of media such as newspapers, TV, radio, podcasts or the internet, nor should you research or seek outside information about any aspect of the case.
Please do not communicate with anyone about the case on your phone, whether through email, text messaging or any other means, through any blog or website or by way of any social media including Facebook, Twitter, Instagram, YouTube or other similar sites.
You must not consider anything you may have read or heard about the case outside of this courtroom, whether you read it before, during jury selection or during this trial and do not attempt any independent research or investigation of the case or visit any of the locations identified on the questionnaire or discussed during the course of jury selection or during the trial.
We'll see you tomorrow morning at 9:30. Thank you very much for your attention.
All rise for the jury.
(Jury leaves courtroom.)
THE COURT: All right. The witness may stand down. Please do not discuss your testimony with anyone. We'll see you tomorrow morning at 9:30, ma'am.
LAUREN SALZMAN: Thank you.
(Witness steps down.)
THE COURT: Everyone else may be seated.
I want to take up the issue that you raised at the end. I know what you're talking about and it's the issue about Carly and the Crawford issue, isn't that right? Is that what you're talking about?
MR. AGNIFILO: The Crawford issue, yes.
THE COURT: The Crawford issue.
MR. AGNIFILO: In regard to Kristin and Carly.
THE COURT: Well, the reason -- I don't have realtime here because for some reason it didn't work this afternoon so what I'd like to do is take a look at the realtime and if you have a proposed instruction to the jury, you can provide it to me and I'll deal with it first thing in the morning.
MR. AGNIFILO: Very good. I'll do that, Judge.
THE COURT: And it's about both Kristin and Carly.
MR. AGNIFILO: Right. The testimony now is that Kristin and Carly both said in words and substance that they were lied to to join DOS, they joined DOS under false pretenses and my concern is that's precisely a count of the indictment that my client is charged with and I don't think either of those people are going to testify so I'm never going to have the opportunity to cross-examine them and I think we have a Sixth Amendment confrontation issue.
THE COURT: I understand your argument.
And the government's position on this is, just so that we put a finer point on it?
MS. HAJJAR: Your Honor, the timing of when these claims were made and to whom they were made is critical to understanding what happens afterwards. There are public positions statements that are put out by NXIVM, efforts to discredit these particular victims and NXIVM itself engages in some -- in efforts to present a counter-narrative and so the fact that Ms. Bronfman, the entire executive board, Ms. Salzman is on notice of what the requests are and what's being said about DOS and these people's experience in DOS is important to establish why they did what they did and that when they put out statements later saying DOS was a good thing, that they were supportive of it, that no one got hurt, that those statements were made with the knowledge that there had been claims, specific claims made about and requests for collateral back.
THE COURT: So, but are these representations being made for the truth of the matter asserted which is exactly what the defense is claiming here, that the argument is being made and that because they are and because these individuals are not appearing and being available for cross-examination, that creates a Crawford issue. That's what I'm trying to get down to here.
MS. HAJJAR: They're being offered for their effect on Ms. Salzman and the executive board and for the fact that they were made at the specific time, not the contents of the email itself but the fact that that was the content of the email that someone had been -- that these former DOS slaves had talked about DOS, had said that their experiences were negative and said that these materials were taken from them under false pretenses and from fraud and nevertheless certain actions were taken by the company and by the individual recipients and so the timing of that communication and what happened afterward is critical to explaining what NXIVM does and what the defendants do in this period of time.
MR. AGNIFILO: The problem, Judge, is that the un- cross-examinable factual assertions are precisely the content of their charge on the wire fraud so I think it rings hollow. I'll follow the Court's instruction, I'll give a proposed instruction. I don't think we can instruct our way out of this problem. I mean factual detailed assertions have been made by people who I can never cross-examine that are precisely the content of the charge. So, they can say it's for the effect on the listener but it just so happens that precisely what Carly and Kristin have now said through hearsay to this jury and cannot be cross-examined on perfectly reflects their wire fraud count.
THE COURT: Well, first of all, I kept the documents out. It's impossible to -- we can't rewind the video here and edit this out. I'm looking for a way if it's a problem, and I'm not sure that it is frankly, if it's a problem, to give an instruction and to do what you ask, to strike the testimony in answer to that question and this happens all the time and if it's done promptly, it doesn't create a problem should there be a conviction and an appeal, in my view. So, this is the way trials work. So, I don't want to hear about that this can't be rectified if it's a problem, it's a small piece of a large story and what I'm going to do is take a look at the testimony, take a look at your arguments and then figure out what to do and we'll roll right along from there.
Speaking of rolling right along, how much more do you have for this witness?
MS. HAJJAR: I think at least half a day if not more, Your Honor.
THE COURT: At least half a day.
MS. HAJJAR: But probably a little bit more than that, going well into tomorrow.
THE COURT: Okay. And on cross-examination do you have an estimate?
MR. AGNIFILO: A third of the direct.
THE COURT: I don't know what that means.
MR. AGNIFILO: I don't either.
THE COURT: Give me hours.
MR. AGNIFILO: It sounded nice.
THE COURT: Hours, I'm not good at fractions.
MR. AGNIFILO: Either am I. Four hours, three hours, I don't know.
THE COURT: So, we're going to go into Wednesday on this?
MR. AGNIFILO: I would think we are. I would think we are.
THE COURT: Wednesday. All right. And do we know who's next? I'm always hoping for the future.
MR. AGNIFILO: They told us and we appreciate them telling us.
MS. PENZA: We can also notify the Court, Your Honor.
THE COURT: I'd appreciate that. It would be nice to know what you all know.
MS. PENZA: Yes.
THE COURT: Okay.
MR. AGNIFILO: I'm not sure it always is but I understand.
THE COURT: Yes, thank you. Okay.
MS. HAJJAR: Your Honor, may I just raise one more thing?
THE COURT: Oh, sure.
MS. HAJJAR: I'm sorry. There are four recordings that the government intends to admit tomorrow through this witness.
THE COURT: Yes.
COURT CLERK: Mr. Agnifilo has represented that he objects to their admission on the basis I think that this witness, this cooperating witness was not physically present during these recordings. We have -- we can notify the Court as to which recordings they are should the Court want to listen to them or identify which ones are the disputed portions prior to tomorrow but we just wanted to let the Court know that this was something that the parties did not agree on.
MR. AGNIFILO: One of the things I was going to talk to the government about when we were done today is I think there's something in the direct examination where Ms. Salzman listened to certain recordings in making certain memorializations. What I don't know is whether any of the four recordings they intend to play tomorrow are any of those recordings. My concern is I don't know how she can authenticate a conversation she wasn't present for. I mean there are a number of women present for a conversation, Ms. Salzman wasn't one of them and so I don't know how we can say that this was certainly the conversation that took place if she's not there to say I was present for the conversation, I remember it, these are the people talking, that is what was said and she can authenticate the audiotape.
THE COURT: Who were the people in the conversation?
MS. HAJJAR: These were recorded conversations of -- between the defendant and the first line of DOS, Your Honor.
THE COURT: Well, she was on the first line of DOS.
MS. HAJJAR: She was but these recordings took place prior to her joining DOS. Nevertheless, she can identify the content and explain it and identify all of the participants and the government can also seek to introduce the testimony of a law enforcement agent that recovered these recordings but Ms. Salzman can explain the recordings and identify the voices and we would ask that Your Honor consider the recordings themselves. They're very clear as to what's happening, there are no breaks, there's no reason to believe that they're not authentic in some way. Ms. Salzman testified that the recordings of the meetings of the first line were kept and maintained and there's no reason to think that these recordings are inauthentic in some way or doctored and she can identify what's being said and by whom.
THE COURT: Well, do you want to take a break from her testimony and put on a witness who can authenticate them that they were received, you know, the law enforcement officer? I'll allow that if it means that we just have to take a small break. I mean is that preferable?
MR. AGNIFILO: No, no, what I think the better course is let's -- I have a question that could possibly resolve this because if she listened to these recordings in doing something as part of her official duties, I think they fall under one category; if she's never listened to them -- I mean all we've heard in this case so far about the reliability of recordings should cause us to have no confidence that a recording is absolutely reliable, I mean the head of the video department just talked about the four ways that he plays with plugs and he does things and he does other things. So, there's nothing in this record to suggest that just because a video or audio was once made, it's absolutely 100 percent that way for the rest of time. The state of the record is not that at all, it is quite different.
But let's do this so maybe we can take this off Your Honor's plate, we will talk, if we still have an issue we'll tell Your Honor and we'll resolve the issue.
MS. HAJJAR: I suspect we will still have an issue and I think --
THE COURT: Well, talk and let me know at 9:00 tomorrow morning, I'll be here.
MS. HAJJAR: Thank you, Your Honor.
MR. AGNIFILO: Thank you.
THE COURT: So will you.
MR. AGNIFILO: Yes, we will.
THE COURT: Thank you.
MR. AGNIFILO: Thank you, Judge.
THE COURT: Have a good night.
(Time noted: 5:20 p.m.)
(Matter adjourned to Tuesday, May 21, 2019 at 9:00 a.m.)
-oo0oo-