Thread by @innercitypress

OK - US v. Sean Combs Day 30, the charge conference, after US letter said some theories of liability are no longer being pursued: patreon.com/posts/diddy-do… Week 6 book below. Inner City Press is covering matthewrussellleeicp.substack.com/p/extra-in-sea… & will live tweet, thread below x.com/innercitypress…

This charge conference was supposed to be at noon, then moved to 2 pm, not still not begun as of 2:20 pm. Sean Combs is sitting at the defense table. Next to him, his lawyer Xavier Donaldson speaks to Judge's courtroom deputy. There's talk of more delay

OK - 3:07 pm - they start up
Judge: Sorry for the delays, but there was a full on Constitutional challenge
patreon.com/posts/diddy-do…

Combs' Alexandra Shapiro: Could we have another hour?
Judge: I'm happy to give you that time.
Shapiro: I'm sorry. Half an hour would be sufficient.

Break [to 3:45]
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3:49 pm they're back
Judge Subramanian: Be seated. OK, so we've resolved the verdict form, so let's go through the charge. On page 1, any objections?
AUSA: No
Combs' lawyer: No.

Judge: Page 2, I'm going to take out of the references to the jury being the judge of the facts, we say that three times.
Combs' Shapiro: We don't have anything until page 13
AUSA: Same here.
AUSA: On 13 on the conspiracy, a person need not know everyone else

AUSA: They don't have to have full knowledge of the RICO conspiracy. Only that they agree to two predicate acts.
Judge: Response?
Combs' Shapiro: We object. That's not the argument I was making in the Rule 29, as to Ms. Khorram, did she know of the hotel rooms?

Judge: I overrule the Government's objection. I added language from the Sands treatise after the Government's letter of last evening
[US letter here: patreon.com/posts/diddy-do…

Combs' Shapiro: We propose in line 21 you add that "actions should be considered as well." In this made this argument to Judge Liman last year in the Bruce Garelick trial [which Inner City Press also covered: innercitypress.com/sdny23tmnpishv…

Judge: I think this instruction is clear enough for the jury. That being said, the defense can made arguments about this in summation to make their point. I reject the defense suggestion on that point. Anything more on page 13?
AUSA Smyser: I have one on page 12

Combs' Shapiro: What Ms. Smyser has referred to is the nature of the agreement
Judge: I think that's right. I overrule the objection of the Government. Let's move to page 14.
Combs' Shapiro: On line 9, the Government's mark-up of last night
[not docketed]

Judge: Page 15?
AUSA Smyser: We have an objection to line 2 at the very top, it says the enterprise has to be the same throughout. We think it's confusing in this particular case, where we speak of the inner circle versus the core: the chief of staff and security

AUSA Smyser: For example, R Doc was security at the beginning, Faheem at the end. The same person doesn't have to stay in the position.
Judge; What do you propose?
AUSA: "some of the core of the enterprise has to be the same throughout."
Judge: People are not core

Judge: "This does not mean that every person has to be the same but the core aspects have to be the same"
Combs' Driscoll: That might be inconsistent with Boyle, the Supreme Court case
AUSA Smyser: We could say, the members of the organization can change

Judge: The danger is that the jury think that have to make findings under each racketeeting act
Combs's Shapiro: Can you give me a minute
[Meanwhile, Inner City Press dug up a previous US draft of the request to charge, 100 pages: patreon.com/posts/diddy-do…

Judge: Page 20? I have one thing to raise.
Combs' Shapiro: Mr. Driscoll has reminded me of another suggestion we have. This comes from Ocasio v US, you have to blame the Supreme Court.
Driscoll: They have to prove the conspirators agreed to commit each element

Judge: Give me the full sentence.
Combs' Driscoll: On page 19, line four, after the words "actually occurred," you could add that each conspirator must be aware of each substantial racketeering offense

AUSA Smyser: We are not required to show that there was an ongoing Federal investigation
[From US draft: The Government is not required to prove that there was an ongoing federal case or investigation, draft here: patreon.com/posts/13229534…

Judge: The statute has its elements - using thread to hinder complaint to law enforcement or a judge
Combs' Shapiro: There has to be a showing the victim intended to approach Federal law enforcement, had knowledge of the Federal aspect of the offense

[Finally something on the swirling questions]
AUSA Smyser: The Government is not going to proceed on 1512(c)(2) and we ask you not instruct the jury on that.
Judge: I assume there is no objection?
Combs' Shapiro: Certainly not.

AUSA Smyser: On the forced labor, the Government will be arguing that certain sex acts can be labor, we will be building off the R.Kelly case. The defense argues that the victims are well off - so we need to make this clear to the jury.
Shapiro: We object

Combs' Shapiro: We are not arguing that sexual acts cannot be labor, rather that the victims here were not particularly vulnerable, like from other countries, without immigration status-
AUSA: In R. Kelly the 2d Circuit said sexual labor falls within the statute

Judge: I overrule the Government's objection.
AUSA Smyser: In closing we will be making this argument.
Judge: Absolutely. Sexual services can count as labor under the statute.

Judge: Just to move this along, because it is getting late, I will add reference to the forced labor statute.
On the other, I am including a mens rea requirement, in light of the vagueness challenge.
Combs' Shapiro: We think that insufficient

Judge: The Government is going to argue full throatedly that there was knowledge, mens rea.
Combs' Shapiro: This offense was not in the initial indictment. We are not required to object to the US' request to charge (here: patreon.com/posts/13229534…

Combs' Shapiro: If the government is now changing what they are going to argue with respect to the drugs, the jurors will notice it - it should be addressed.
Judge: I agree.

AUSA: In Wexler the sentence about the buyer - seller exception, it should be construed narrowly
Combs' Shapiro: That's the context here.
Judge: I'm going to reserve on this, the buyer - seller exception to conspiracy to distribute [drugs]

Judge: Any objections on the special sentencing factor?
No. No.
Judge: So Counts 2 and 4. We're almost almost to the finish line.
Combs' Shapiro: The court has added that there is no requirement that a sex act be performed. We object

Combs' Shapiro: The "to wit" clause of counts 2 and 4, the US used that to trigger the 15 year minimum, and to detain Mr. Combs, alleged that these victims engage in commercial sex acts, as did the Enterprise letters. So this would be a constructive amendment

Combs' Shapiro: The March 10 Enterprise letter said they would provide commercial sex acts.
Judge: The Government is going to be arguing that commercial sex acts occurred. What do we do here?
AUSA: This is blown out of proportion. We're not bound by to wit clauses

AUSA Smyster: There may be particular days the jury finds that the acts were not completed - like when Jane testified that an escort was sent away - that's why we propose this instruction. We listed the dates in the Enterprise letter.

Combs' Shapiro: We're not conceding on the statute - the 15 year minimum only applies if it is triggered. A(1) doesn't require force, fraud or coercion necessarily. This is a due process issue. Attempt is already captured here

Combs' Shapiro: This is very unfair
Judge: I am asking you for cases. We need to move on.
Shapiro: I will email you cases
Judge: I don't need any further submissions, You'll have the final charge tonight.
AUSA: There's no constructive amendment

AUSA Smyser: In the Inter-Continental there was force and then no completed sex act. We charged it as sex trafficking. So they have been on notice.
Combs' Shapiro: They maintain in the Inter-Continental there was a freak-off going on, a sex act.

Judge: I'm going to take the paragraph out as argumentative
AUSA: I have some suggested edits. Jane and Cassie both said they did their first freak-off to make their partner happy. That doesn't mean it can't later become sex trafficking

Combs' Shapiro: The best solution is to delete.
Judge: I'll remove it.
AUSA: Initial consent does not preclude a finding of sex trafficking.
Judge: I'll add that
Combs' Shapiro: Then add, that initial acquiescence may be considered as to defendant's knowledge

Judge: We've got to keep moving here.
Combs' Shapiro: We need balancing language-
Judge: That's the balancing language.
Judge: I'm going to use the modified language I proposed.
Combs' Driscoll: May I be heard?
Judge: Ten minute recess. I need to think.

Break
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6:48 pm
Judge: We're back on the record. I'm going to leave it, the parties are free to make their arguments in closing. Anything else?
Combs' Shapiro: The charge is suppose to capture that the defendant has to take step to avoid learning that coercion is used

Judge: I'm removing a sentence.
Combs' Shapiro: The next sentence too.
Judge: No, that's a restatement.
Combs' Shapiro: I just wanted to preserve my objection.
Judge: Unanimity instruction - Government?
AUSA: As to at least one instance of sex trafficking

Judge: Counts 3 and 5. Anything from the US?
AUSA Smyser: Yes, we'd like it to refer to an act of prostitution - the person traveling does not have to be a commercial sex worker.
Combs' Shapiro: Those words aren't in the statute
Judge: I'm making the change

AUSA: A problem is the sentence about scrutinize closely - the use immunity given here, different from transactional immunity, they are not trying to win their own freedom by helping to convict another.

AUSA: And on implicit bias, we propose that it be shorter. At line 15 it draws attention to bias, and may increase tensions among the jurors.
Judge: I'll remove that.
AUSA: 2 cases to put on the record, US 554 F.3d 230 (2d Cir 2008) and 316 F. App. 54

Combs' Shapiro: We'd prefer that the word Government not be capitalized.
Judge: So it's government. Find and replace
Combs' Shapiro: To avoid the problem of headings misleading jurors, let's cut them. Plus I want to preserve this, we incorporate in all our filings

Judge: Anything further?
No. No.
Judge: We will get you the final charge tonight. See you tomorrow morning.
Combs' Shapiro: For Mr. Agnifilo, he doesn't believe he will take more than three hours but he'd prefer to start Friday morning. If the rebuttal is an hour

AUSA: We object. It would waste the jury's time to come in for a partial day. July 4 is looming.
Combs' Shapiro: He could shorten it if it were Friday (laughs)
Judge: Ending early Thursday would run us more up against July 4

Combs' Shapiro: Mr. Agnifilo is lead counsel and would prefer to do it this way.
AUSA: We are concerned this is gamesmanship, to give them more time to consider our summation
Shapiro: We think jurors are tired after lunch

Judge: The defense is making the application - I think it's fine for Mr. Agnifilo to start on Friday morning. AUSA, you could start later.
AUSA: For Ms. Slavik, 10 am. Two hours, lunch, then two more hours.
Judge: Fine.

Adjourned
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