EFTA00089986.pdf

UNITED STATES DISTRICT COURT USDC SDNY SOUTHERN DISTRICT OF NEW YORK DOCUMENT ELECTRONICALLY FILER DOC //: DATE FILED: 11/19/21 United States of America, —v— 20-CR-330 (AJN) Ghislaine Maxwell, MEMORANDUM Defendant. OPINION & ORDER ALISON J. NATHAN, District Judge: Before the Court is the Defendant's fourth motion in limine to "exclude evidence related to Accuser-3," to whom the Court refers as Witness-3, on the grounds that the testimony is not direct evidence of the charged conspiracies and is inadmissible under Federal Rules of Evidence 404(b) and 403. Dkt. Nos. 387, 444. The Court has twice heard argument related to this motion, including argument at the November 10, 2021 in camera hearing that was sealed pursuant to Federal Rule of Evidence 412. See generally Nov. 1, 2021 Transcript; Nov. 10, 2021 Transcript. At the November I, 2021 hearing, the Court provided a brief explanation of its current position based on the information then before it, but the Court ultimately reserved ruling pending additional briefing. The Court is now in receipt of the parties' additional briefing and accordingly is prepared to resolve the motion.' The Government now proffers that the anticipated testimony of Witness-3 will describe how she met the Defendant and her relationship with the Defendant and Mr. Epstein. In particular, Witness-3 is anticipated to testify how Defendant introduced her to Mr. Epstein, how I This Memorandum Opinion & Order is filed temporarily under seal to permit the parties the opportunity to propose sealing or limited redactions pursuant to Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006), and Federal Rule of Evidence 412(cX2). 1 EFTA00089986 massages progressed to involve sexual activity, and Ms. Maxwell's role in facilitating those massages. Based on all of the information now before the Court, including a substantially more detailed proffer by the Government as to the anticipated testimony, see Gov. Supp. Ltr. at 2-3 (Nov. 5, 2021); see also Dkt. No. 452 at 42-43, the Court concludes that some of the anticipated testimony may serve as direct evidence of the Mann Act counts. The Government rightly acknowledged at the November 1 pretrial conference that Ms. Maxwell cannot be found guilty on this witness's testimony alone for any of the crimes charged in the Indictment. Nov. 1, 2021 Tr. at 67:12-25, 68:13-19, 69:4-9, 70:23-71:2, 72:22-25. As the Government acknowledged, with respect to the jury's determination in this case, this witness is not a victim of any of the crimes charged in the Indictment. See id. at 69:4-9; Nov. 10, 2021 Tr. at 164:19-165:3.2 However, evidence of legal conduct can of course be relevant evidence of illegality. And conduct that cannot itself form the basis of a conviction can serve as direct evidence of the crimes charged. See, e.g., United States v. Robinson, 702 F.3d 22, 37 (2d Cir. 2012) (affirming admission of defendant pimp's relationship with and control over women who worked as prostitutes as direct evidence of 18 U.S.C. § 1591(a) charge). Thus some of the anticipated testimony described above can serve as direct evidence, notwithstanding the fact that the alleged conduct as to Witness-3 was not illegal for the purpose of the charges in this case. Portions of the anticipated testimony may also serve permissible purposes under Rule 404(b), namely proving motive, intent, and knowledge. See Fed. R. Evid. 404(b)(2). The witness is expected to testify about certain statements by Ms. Maxwell. For example, the 2 At the November I conference, the Court denied the Defendant's motion to preclude the Government from referring to alleged victims as "victims" and "minor victims." Nov. I, 2021 Tr. at 4. In contrast to the other alleged victim witnesses, it is not (nor could it be) the Government's litigating position that this witness is a victim of the crimes charged in the Indictment. Given this, the Government may not refer to this witness as a "victim" or a "minor victim" in front of the jury. Doing so would constitute prejudicial error for the reasons explained in this Memorandum Opinion & Order. 2 EFTA00089987 Government expects the witness to testify: that after the witness massaged Mr. Epstein while he was nude, Ms. Maxwell asked the witness if she "had fun and whether Mr. Epstein liked the massage"; that Ms. Maxwell commented that if the witness were not engaging in sexual activities with Mr. Epstein, performing sexual acts would "fall" more to Ms. Maxwell or someone else; and that Ms. Maxwell commented on Mr. Epstein's "significant sexual needs." Gov. Supp. Ltr, at 2-3 (Nov. 5, 2021). These statements are relevant because the jury may conclude that they tend to establish that the Defendant knew the alleged massages were sexualized and the Defendant's motive for facilitating the encounters. The witness is also expected to testify that the Defendant asked the witness to find other girls to massage Mr. Epstein. Id. at 3, 9. This testimony is relevant because the jury may conclude that it tends to establish the Defendant's intent to recruit girls for sexualized massages. The Court will also permit testimony that Ms. Maxwell provided the witness with a schoolgirl uniform and told the witness to wear the uniform and bring Mr. Epstein tea. Id. at 3. Although it is not the only available interpretation of this evidence, the jury could conclude that Defendant's alleged instruction to an I8-year-old to wear a schoolgirl uniform tends to establish both the Defendant's knowledge of Mr. Epstein's sexual preferences for school-age girls and her intent to actively cater to those preferences. Such knowledge and intent are of course proper purposes under Rule 404(b).3 3 Defendant argues that this witness's testimony is impermissible propensity evidence as to Mr. Epstein under Rule 404(b). Def. Supp. Resp. at 5.7 (Nov. II, 2021). The Court is unpersuaded. The testimony is not offered to show that Mr. Epstein acted in accordance with a certain character trait on a particular occasion. Rather, it is probative of whether Ms. Maxwell knew of or at least believed he had a sexual interest in school-age girls, which a jury may find tends to establish the Defendant's intent and motive as to the charged crimes. See Roe v. Howard, 917 F.3d 229, 245-46 (4th Cir. 2019) (rejecting argument that husband's assault of a non-party housekeeper was improper character evidence under Rule 404(b) in a Trafficking Victims Protection Act action against the wife for facilitating husband's assaults of live-in housekeeper). 3 EFTA00089988  The probative value of the anticipated testimony must of course be balanced with any potential prejudice under Rule 403. As the Court noted at the November 1 conference, there is a risk that the jury may confuse the issues and think that the sexual conduct this witness is describing itself constitutes the illegality charged in the Indictment due to the closeness in age of this witness to the age of consent. Nov. 1, 2021 Tr. at 89-90. There is also the risk that the jury may convict Ms. Maxwell due to feelings of immorality or sympathy for the witness despite the lack of illegality with regard to the crimes charged in the Indictment. However, the Court concludes that this risk of prejudice can be sufficiently minimized through two avenues. First, the testimony must be carefully limited. Second, there must be a clear limiting instruction. As to the first, the witness is limited to stating that sexual activity occurred but is precluded from providing detailed descriptions of the sexual activity. There is little to no probative value of a witness describing sexual activity when that witness's testimony regarding the sexual activity cannot form the basis for the conviction of the crimes charged. For example, any prejudice from the schoolgirl uniform testimony described above is substantially diminished by limiting the proffered testimony to the Defendant's interaction with the witness and testimony indicating that sexual activity allegedly took place without describing the details of that sexual activity. Unlike the details of the sexual conduct itself, this anticipated testimony would not be unduly prejudicial. In contrast, the minimal probative value of the details of sexual conduct would be substantially outweighed by the risk of the jury convicting Ms. Maxwell on an improper basis. The same is true of the witness's subjective experience of the sexual conduct and any emotional or other impact the sexual conduct had on the witness because such testimony cannot form the basis of a conviction in this case. Accordingly, the witness is limited, as the Government phrased it, to describing her "factual experience" as to the lines of testimony 4 EFTA00089989 described above. See Gov. Supp. Ltr. at 12 (Nov. 5, 2021). For example, in a recent murder trial, the Court permitted the nephew of the victim to describe his uncle's wounds because the nephew, who had served as a caretaker, had some information that was not cumulative of the medical records. The Court expressly cautioned the Government that it would not permit emotional testimony, or the probative value would be outweighed by the prejudice: [I]t's clearly a 403 line here. You have cumulativeness with the medical testimony, you have graphic descriptions from a relative who cared for the victim which could very well produce sympathies and prejudice that would interfere with and overcome the medical facts that you need for purposes of proving causation.... I am certainly going to cut off the line at any graphic descriptions. To the extent that walking this person through questions regarding the medical condition is emotional testimony, I think we are — it will have to be stopped. United States v. Berry, No. 20 Cr. 84 (AJN), Dkt. No. 138 at 13; see also id. at 15. In that case, the Government agreed that the line had to be carefully guarded. Id. at 13-14. The transcript of that ruling is attached for counsel's reference. See Exhibit A. The Court cautions the Government to proceed carefully because the Court will not allow testimony that steps over this 403 line. The Court will allow some leading questions for this portion of the testimony to help ensure that it does not. Finally, the Court concludes that this witness's anticipated testimony as to the sex trafficking counts is inadmissible. Although the Government's letter points to some relevant direct evidence that this witness could provide regarding these counts, see Gov. Supp. Ltr. at 6-7, any minimal probative value of this evidence is diminished by its remoteness in time to the charged sex trafficking conspiracy, which is alleged to have run from 2001 to 2004. This evidence does not face the same problem as it relates to the Mann Act conspiracies, which are alleged to have begun in 1994 (and when the Defendant allegedly began her relationship with this witness.). Because the risk of unfair prejudice substantially outweighs the probative value of 5 EFTA00089990 this evidence as to the sex trafficking counts, the witness is precluded from testifying that Mr. Epstein paid her for massages when she was an adult. The Court thus draws the line described above for limiting Witness-3's testimony. Permitting the entirety of the proffered testimony carries a risk that the jury may convict Ms. Maxwell due to conduct that cannot form the basis of a conviction for the charged crimes. But by limiting the testimony to the few categories of relevant testimony outlined above, the prejudice is substantially minimized. Moreover, whether as direct evidence of the Mann Act counts or offered for a proper purpose under 404(b), this testimony must be paired with a proper limiting instruction to guard against potential juror confusion. The Defense has submitted proposed limiting instructions, and the Government agrees that some sort of instruction is appropriate, although it disagrees with the basis for the instruction. Dkt. No. 452 at 50 n.12; Gov. Supp. Ltr. at 12 (Nov. 5, 2021). In accordance with this ruling, the Court proposes the following instruction before this anticipated witness testifies: You will hear testimony from the next witness about interactions that she says she had with the Defendant and Mr. Epstein. I instruct you that because the witness was over the relevant age of consent at the relevant time period, any sexual conduct she says occurred with Mr. Epstein was not "illegal sexual activity" as the Government has charged in the Indictment. I instruct you that this witness is not a victim of the crimes charged in the Indictment. To the extent you conclude that her testimony is relevant to the issues before you, you may consider it. However, you may not convict the Defendant on the basis of the testimony regarding the sexual conduct between this witness and Mr. Epstein. Nor may you consider this testimony as any kind of reflection on Mr. Epstein's nor Ms. Maxwell's character or propensity to commit any of the crimes charged in the Indictment. The Court also proposes the following instruction before any testimony by other witnesses regarding sexual activity that occurred after the relevant age of consent: I anticipate that you will hear testimony from the next witness about sexual conduct that she says she had with Mr. Epstein in [insert relevant jurisdiction, e.g. New Mexico]. I instruct you that because the witness was over the age of consent in [insert relevant 6 EFTA00089991  jurisdiction, e.g. New Mexico] at the relevant time period, the sexual conduct she says occurred with Mr. Epstein was not "illegal sexual activity" as the Government has charged in the Indictment. However, to the extent you conclude that her testimony is relevant to the issues before you, you may consider it. However, you may not consider this testimony as any kind of reflection on Mr. Epstein's nor Ms. Maxwell's character or propensity to commit any of the crimes charged in the Indictment. The parties may submit any requested edits to the proposed limiting instructions that are consistent with the Court's ruling or indicate that they have none on or before November 21, 2021. This resolves Dkt. Nos. 387, 444. SO ORDERED. Dated: November 19, 2021 New York, New York )44 ALISON J. NATHAN United States District Judge 7 EFTA00089992  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 1 of 16 L9L5ber1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA, New York, N.Y. 4 v. 20 Cr. 84 (AJN) 5 RALPH BERRY, 6 Defendant. 7 x 8 September 21, 2021 9:45 a.m. 9 10 Before: 11 HON. ALISON J. NATHAN, 12 U.S. District Judge And A Jury 13 APPEARANCES 14 AUDREY STRAUSS 15 United States Attorney for the Southern District of New York 16 BY: 17 Assistant United States Attorneys 18 LAW OFFICE OF MARK S. DEMARCO 19 Attorneys for Defendant BY: MARK DeMARCO 20 -AND- LAW OFFICES OF EZRA SPILKE, PLLC 21 BY: EZRA SPILKE 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00089993  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 2 of 16 L9L5ber1 (Case called) THE DEPUTY CLERK: Counsel, please state your name for the record, starting with the government. 4 MR. HOBSON: Good morning, your Honor. Adam Hobson, 5 Jacob Fiddelman, and Dominic Gentile for the government. 6 THE COURT: Good morning. 7 For the defendant? 8 MR. DeMARCO: Good morning. For Mr. Berry, Mark 9 DeMarco and Ezra Spilke, Ms. Mayerlin Ulerio, and of course 10 Mr. Berry. 11 THE COURT: Good morning, counsel. 12 Good morning, Mr. Berry. 13 THE DEFENDANT: Good morning. 14 THE COURT: I had hoped to start at 9:00 but Mr. Berry 15 wasn't brought until now. Hopefully that won't repeat going 16 forward. We will make sure that things are in place to prevent 17 that so we can timely get started each day. 18 I thank everyone for being here on time. Let me ask, 19 as a matter of procedure, we will wait for the jury department 20 to let us know when the panel is checked in and assembled and 21 in their seats, and then can head over to 500 Pearl to commence 22 jury selection. My purpose for today is to confirm the receipt 23 of the voir dire questionnaire that I sent yesterday with the 24 noted change, make sure everybody got that. The second is to 25 confirm that there have been no additional plea offers. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00089994  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 3 of 16 L9L5ber1 lastly, I made the note, make sure there are no questions regarding jury selection now that you have been to the walk-through in the jury selection room where selection will 4 take place. 5 So, let me ask, everybody received the voir dire with 6 the noted changes? 7 MR. HOBSON: Yes, your Honor. We did. 8 THE COURT: Nothing additional, Mr. Hobson? 9 MR. HOBSON: Nothing additional. 10 MR. DeMARCO: Yes, your Honor; and nothing additional. 11 THE COURT: Thank you. 12 Any additional plea offers that I need to allocute on? 13 MR. HOBSON: No additional plea offers have been 14 extended, your Honor. 15 THE COURT: OK. And then let me confirm if anybody 16 has any questions about jury selections. To repeat the basic 17 process, I will qualify 33 potential jurors that represents 12 18 jurors and three alternates, 10 peremptories as to the main 19 panel for the defense, six peremptories for the government, one 20 peremptory per side with respect to the alternates. And the 21 way that we are operating under the COVID protocols, the jury 22 department will, after the jury panel members are checked in, 23 they'll be randomly assigned a number consistent with a list 24 that the jury department generates, they will be seated in that 25 numerical order in the jury selection room. I understand 1 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00089995  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 4 of 16 4 L9L5ber1 through 42 will be in the main jury selection room and then 43 through, I believe 82 -- we will get the final number once we see what the return on the summons is -- will be seated in 4 courtroom 9C also at 500 Pearl, with a live feed to 9C of 5 everything taking place in the jury assembly room. 6 I will make preliminary instructions which you have 7 seen after you and I enter the courtroom. The panel members 8 will be seated at that point. I will make my preliminary 9 remarks, the written questionnaire that the jurors can read 10 along with will be handed out at that point, both in the jury 11 assembly room and in 9C simultaneously through court staff. 12 will instruct the jurors not to write anything on the 13 questionnaire with the exception of circling a number if they 14 have a "yes" response to that question as I read through the 15 questionnaire. 16 So, at that point I will turn to panel member juror 17 no. 1 and go through and read the questionnaire getting "yes" 18 or "no" response to each question. If the answer is "yes" 19 following up as appropriate. To the extent that the matters 20 touched upon could influence other jurors or are of a sensitive 21 nature, we will bring that juror over to the plexiglass area to 22 my right in the jury assembly room, there is markings on the 23 floor where folks stand and the noise machine will be on so 24 that others cannot hear, and I will inquire with the juror as 25 to any necessary follow-up. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00089996  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 5 of 16 5 L9L5berl Once we get through, assuming we get through juror no. 1 without any for-cause issues, I will turn to juror no. 2 and say do you have any "yes" responses? And then we will take 4 those in order as they come. 5 If any juror needs to be dismissed for cause, let's 6 say juror no. 2 needs to be dismissed for cause, then we will 7 proceed with the same process with juror no. 3. Any "yes" 8 questions, taking those one at a time, continuing until we have 9 33 qualified jurors. 10 Once we have 33 qualified jurors you will exercise 11 your peremptory strikes by list and simultaneously, that is, 12 each side will produce a list with the government's six strikes 13 as to the main panel and one strike as to the alternate panel, 14 and the defense will write its list with 10 strikes as to the 15 main panel and one strike as to the alternate panel. 16 Obviously, before anyone is dismissed, I will hear from counsel 17 if any applications or issues need to be raised if you are 18 satisfied with our jury. Once we get there we will read the 19 names of the selected jurors, dismiss to the jury department 20 the unused jurors, and then proceed over back across the street 21 over here. I believe what we will do is have Ms. Williams take 22 the jurors to the jury room, which is an outfitted courtroom so 23 they can put their belongings down, she can give them notebook 24 and pen, bring them back in. At that point she will swear the 25 jury and I will give preliminary instructions and opening SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00089997  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 6 of 16 6 L9L5ber1 statements. Whether that happens today or tomorrow we will see. Hopefully today. Any questions or issues to raise with the process I 4 have described? Mr. Hobson? 5 MR. HOBSON: Your Honor, no. One small thing on the 6 voir dire. We submitted a list of names for the Court to read. 7 One thing I wanted to flag for the Court is one of the 8 witnesses' names we asked you to include is Jesus Ortiz, and 9 that's how he pronounces his name, with a hard J. I want to 10 flag that for the Court so that his name is read accurately to 11 the jury. 12 THE COURT: Let me see if there are any other 13 pronunciation issues. 14 Mr. DeMarco, while I am pulling that up, any other 15 questions or issues with respect to the process? 16 MR. DeMARCO: No, your Honor. 17 THE COURT: And, Mr. DeMarco, you are going to keep 18 your mask on so I don't have to keep coming at you about it? 19 MR. DeMARCO: I will do my best. 20 THE COURT: OK. Don't take it off to talk. 21 MR. DeMARCO: Sorry? 22 THE COURT: Don't take it off to talk. 23 MR. DeMARCO: OK. I took it off to listen the last 24 time. 25 THE COURT: That's an anatomical anomaly. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00089998  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 7 of 16 7 L9L5ber1 I should say, of course, once we are in the courtroom then counsel in the plexiglass box with the HEPA filter will be able to remove their mask for questioning, and to the extent 4 outside of the jury we have argument or the like, we can do 5 that in there to aid that that process. 6 It's Ms. Ulerio, Mayerlin, am I saying that correctly? 7 MS. ULERIO: Yes. 8 THE COURT: And you have another paralegal Dylan 9 Schneider who may be here? 10 MR. DeMARCO: Yes, your Honor, but he won't be with us 11 in court. 12 THE COURT: And what about Jeremy Schneider? 13 Mr. Schneider. 14 MR. DeMARCO: He is unable to be with us. 15 THE COURT: He won't be at trial at any point? 16 MR. DeMARCO: No. I don't expect him to be here. 17 THE COURT: Should I include him in the voir dire just 18 in case. 19 MR. DeMARCO: I think you should, Judge, because his 20 name might come up and I just can't see how or where or under 21 what scenario. But, just to be safe. 22 MR. HOBSON: His name is on the stipulations, so maybe 23 to be safe. 24 THE COURT: Just to note, when I do introduce counsel 25 for purposes of the voir dire, and Mr. Berry, and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00089999  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 8 of 16 8 L9L5ber1 paralegals, I will ask each of you to stand as I say your name so that the jurors can see you, the panelists can see you. So, I will note Mr. Schneider is part of the team but not present 4 today and may not be present every day of the trial. 5 Appropriate, Mr. DeMarco? 6 MR. DeMARCO: Yes, Judge. 7 THE COURT: OK. So Jesus Ortiz is the pronunciation. 8 How about, Mr. Hobson, how do I pronounce no. Q? 9 MR. HOBSON: I believe, your Honor, it is Vyacheslav, 10 and the last name is Polosin. 11 THE COURT: Vyacheslav Polosin. OK. 12 Special Agent Stefano Braccini? 13 MR. HOBSON: And he is in the courtroom. 14 THE COURT: OK. I think that's it. Other issues to 15 take up? 16 MR. HOBSON: I don't think so, your Honor. 17 THE COURT: Mr. DeMarco? 18 MR. DeMARCO: No, your Honor. Not now. 19 Judge, how much time do we have before we walk over? 20 Maybe we could use this time efficiently, because I do have 21 I raised with the government an issue I was going to raise with 22 their first witness so you tell me. 23 THE COURT: I was told around between 10:00 and 10:30 24 but we won't know until they actually call over so I'm happy to 25 use the time and if we get the call, we will pause. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00090000  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 9 of 16 L9L5ber1 MR. DeMARCO: OK. THE COURT: Was it an issue you wanted to speak to the government about first? 4 MR. DeMARCO: I did consult with the government. I 5 was unpersuasive. I was hoping to be more successful with your 6 Honor. 7 THE COURT: OK. And the first witness is? 8 MR. DeMARCO: Mr. Rasheen Vega. 9 THE COURT: Go ahead. And if you could speak into the 10 mic, please? 11 MR. DeMARCO: It seems to me, your Honor, from my 12 reading of the 3500 material, that we can expect Mr. Vega to 13 testify to something like this: That he was the nephew of 14 Mr. Jones, that he was 11 years old at the time that Mr. Jones 15 was shot in June of 2000, that he witnessed a portion of that 16 shooting or the aftermath of that shooting which I am OK with. 17 The problem that I have with his prospective testimony is this: 18 It also appears from reading the 3500 that the government will 19 seek to elicit from Mr. Vega testimony about the horrific, 20 horrific bedsores or compression sores that Mr. Jones was 21 suffering from at the time of his death. I believe there is at 22 least notes that Mr. Vega observed the sores to be oozing, 23 observed Mr. Jones to be in terrible, terrible pain and 24 suffering at or near the time of his death, and my concern is 25 that, A, in light of the fact that two doctors are being called SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00090001  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 10 of 16 ic L9L5ber1 by the government and, even apart from that, Mr. Vega is not qualified to testify about the injuries that he observed; and B, that this type of testimony serves no purpose but to elicit 4 or garner sympathy from the jury and will be unduly prejudicial 5 to Mr. Berry. 6 So, that's the basis of my objection to Mr. Vega, 7 should he be asked those types of questions. 8 THE COURT: Understood. 9 Mr. Hobson? 10 MR. HOBSON: Your Honor, there are two large topics 11 that Mr. Vega is anticipated to testify about. I think it is 12 consistent with what Mr. DeMarco says is, one, he was a 13 percipient witness to the shooting itself; and two, he observed 14 the victim's injuries after the shooting and was involved in 15 the victim's care in the 10 years between the shooting and the 16 victim's death. I take it it is the second category that the 17 defendant is objecting to. But here, cause of death is 18 obviously a big issue in this case and it is something that it 19 is our burden to prove, that the injuries from the shooting 20 lead to his death. And we expect the evidence to show that, as 21 a result of the shooting, the victim became paralyzed from the 22 waist down and that meant that he was confined to a 23 wheelchair -- whereas he was not in a wheelchair before -- and 24 developed serious complications as a result of that including 25 serious sores which later led to infection and the victim's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00090002  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 11 of 16 1 L9L5berl death. We will not be eliciting expert medical testimony or opinion from this witness, he will be simply testifying to what 4 he observed with respect to the victim's physical condition 5 during the 10 intervening years between the shooting and the 6 death and that's important evidence, it's evidence that will 7 then be consistent with things that medical experts to be 8 qualified as experts will be called to testify about, but those 9 experts did not observe these injuries during the 10 10 intervening years. They also did not observe Mr. Jones prior 11 to the shooting. For instance, they wouldn't be able to tell 12 you whether he was in a wheelchair before the shooting or after 13 the shooting. They wouldn't be able to tell you if he 14 developed those bedsores before the shooting or after the 15 shooting. It is Mr. Vega's observations that will allow the 16 jury to connect those dots. Given how important causation is 17 in this case, we think it is important that the jury understand 18 those injuries. 19 THE COURT: Will medical records, that will be 20 introduced, describe the bedsores? 21 MR. HOBSON: They will describe the bedsores at the 22 time of the autopsy which was in November of 2010. 23 THE COURT: What is the connection between bedsores 24 and cause of death? Infection? 25 MR. HOBSON: Your Honor, essentially what I expect the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00090003  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 12 of 16 12 L9L5ber1 testimony will be from the medical experts is that as a result of the gunshot wound, that caused paralysis and paraplegia in the victim. Paraplegia commonly leads to things such as 4 bedsores or pressure sores from not being able to move one's 5 body; also other conditions such as a colostomy bag, a 6 collapsed rectum, a permanent catheter, all of which can lead 7 to infections and that in this particular case it was the 8 complications of the paraplegia that led into infections or 9 sepsis and that it was the sepsis that ultimately, in 2010, 10 killed Mr. Jones. 11 MR. DeMARCO: Your Honor, if I may? 12 THE COURT: Sure. 13 MR. DeMARCO: In my reading of the 3500 notes that 14 were disclosed it's more than that. He describes oozing-type 15 wounds, he describes a horrific odor, I think he described it 16 as the smell of death in Mr. Jones' apartment at or near the 17 time of his death. It's facts like these that I am focusing 18 on. 19 THE COURT: Yes. 20 MR. DeMARCO: The paraplegia, the medical testimony 21 from the medical examiners will establish that Mr. Jones was a 22 paraplegic and he was in a wheelchair. But, my concern is 23 about the graphic description of the bedsores, the compression 24 sores, and also the horrific odor witnessed by Mr. Vega. 25 MR. HOBSON: Your Honor, we are certainly cognizant of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00090004  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 13 of 16 13 L9L5ber1 not crossing the 403 line here. We think it is important that the jury understand the nature of these injuries and how they could lead to his death and what the injuries were during the 4 intervening time between the shooting and the autopsy. We are 5 not looking to be gratuitous or to pile on here. 6 THE COURT: Yes. Well, it's clearly a 403 line here. 7 You have cumulativeness with the medical testimony, you have 8 graphic descriptions from a relative who cared for the victim 9 which could very well produce sympathies and prejudice that 10 would interfere with and overcome the medical facts that you 11 need for purposes of proving causation. So, because this 12 witness is testifying first it's difficult for me to know 13 exactly what additional facts you need to extract from the 14 witness but I am certainly going to cut off the line at any 15 graphic descriptions. To the extent that walking this person 16 through questions regarding the medical condition is emotional 17 testimony, I think we are -- it will have to be stopped. 18 So, I think what you need to think about is what 19 and I'm going to allow a little bit of leading to ask the 20 specific factual questions you believe that you need and that 21 are not cumulative with the medical testimony, but I'm going to 22 guard this line very carefully, and you should too. 23 MR. HOBSON: Your Honor, I understand that. I will 24 say that in meeting with this witness we have tried to follow 25 that line and I am -- with the ability to maybe construct some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00090005  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 14 of 16 L9L5ber1 of my questions in a leading way, I will hope to enforce that line. It is, again, certainly not our intention to be gratuitous but to simply get in the nature of the injuries and 4 their relationship. 5 THE COURT: You don't have pre-autopsy medical records 6 that you are putting in that describes these injuries? 7 MR. HOBSON: No, your Honor. 8 MR. DeMARCO: I'm sorry. What was that? Pre? 9 THE COURT: No. I asked if there were -- 10 MR. DeMARCO: I misunderstood your question, Judge. 11 I'm sorry. 12 THE COURT: I asked if there were pre-autopsy medical 13 records that describes these infections and injuries and the 14 answer is no. 15 MR. DeMARCO: The government has disclosed, pursuant 16 to Rule 16, some of these records that your Honor references, 17 so. 18 MR. HOBSON: Your Honor's question was I think if we 19 are introducing them. There are voluminous medical records 20 that are almost incomprehensive to a layperson. We are not 21 introducing those records. 22 THE COURT: But you have a medical expert. 23 MR. HOBSON: We do have a medical expert. 24 MR. DeMARCO: Your Honor, if I just might add another 25 fact to this? Based on the exhibit list and the exhibits SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00090006  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 15 of 16 15 L9L5ber1 provided to us by the government, the government intends to introduce, through the medical examiner, photographs of these bedsores. So, I think that expert testimony, by itself, 4 sufficiently will describe the bedsores that Mr. Jones was 5 suffering at the time of his death. 6 MR. HOBSON: To be clear of what photographs we are 7 introducing, we are not introducing the most graphic pictures 8 of the bedsores. In fact, we were concerned in introducing 9 some of the pictures that they wouldn't fully show how serious 10 the bedsores were but we are not going to be putting in the 11 most graphic pictures. 12 THE COURT: What I am going to allow is you will have 13 some permission to lead with respect to the description of the 14 injuries and sores. It's going to be brief and extraction of 15 facts that you need that is not cumulative with medical 16 testimony and evidence that's coming in. We will see how it 17 goes but I am -- I intend to be extremely cautious given that 18 this is non-expert medical testimony coming from a relative. 19 So, the prospect of prejudice and emotion and sympathy is real 20 and I'm not going to let it happen. 21 MR. HOBSON: Yes, your Honor. We understand. 22 THE COURT: Anything else? 23 MR. DeMARCO: No thank you, your Honor. 24 THE COURT: OK. Any word, Ms. Williams? 25 (Discussion off record) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00090007  Case 1:20-cr-00084-AJN Document 138 Filed 10/06/21 Page 16 of 16 16 L9L5berl THE COURT: They said 15 to 20 minutes so I imagine the marshals need time to get Mr. Berry across the street. So, unless anyone has anything further, we will break and 4 re-assemble across the street at 500 Pearl. Thank you. 5 So, one question. Mr. Hobson, is the government ready 6 to commence trial? 7 MR. HOBSON: Yes, your Honor. 8 THE COURT: Mr. DeMarco? 9 MR. DeMARCO: Yes, Judge. 10 THE COURT: Thank you. 11 MR. DeMARCO: Your Honor, we are going to meet over at 12 the jury room? 13 THE COURT: We will meet in the alcove outside the 14 jury assembly room. There will be jury department staff there 15 to assist. 16 Thank you. 17 (Jury selection contained under separate cover) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00090008