gov.uscourts.nysd.447706.824.0_2.pdf

Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 1 of 47 1 H3GVGIUC 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 VIRGINIA L. GIUFFRE, 4 Plaintiff, 5 v. 15 CV 7433 (RWS) 6 GHISLAINE MAXWELL, 7 Defendant. CONFERENCE 8 ------------------------------x New York, N.Y. 9 March 16, 2017 1:05 p.m. 10 Before: 11 HON. ROBERT W. SWEET, 12 District Judge 13 APPEARANCES 14 BOIES SCHILLER & FLEXNER 15 Attorneys for Plaintiff BY: SIGRID S. McCAWLEY 16 HADDON MORGAN AND FOREMAN 17 Attorneys for Defendant BY: JEFFREY S. PAGLIUCA 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 2 of 47 2 H3GVGIUC 1 THE COURT: First order of business from me, have you 2 all reached any decision as to how we're going to conduct the 3 trial with respect to the matters covered by the protective 4 order? 5 MS. McCAWLEY: Your Honor, Mr. Pagliuca and I were 6 just discussing that, the issue of the protective order. 7 There's two points on that, and he can address them as 8 well. 9 The protective order itself that we entered in the 10 case does have a paragraph in it that addresses the trial. It 11 provides that -- that's just for reference, that's going to be 12 document 62, and it's in paragraph 13. It says: The 13 protective order shall have no force and effect on the use of 14 any confidential information at the trial in this matter. 15 So, full disclosure, I want to let you know that 16 that's what the protective order currently says. 17 The plaintiff would like to request that names of 18 victims, of individuals who consider themselves to be a victim 19 of sexual abuse, a pseudonym be able to be used for them and 20 any identifying information, for example, their Social Security 21 number or an address be able to be protected for those that are 22 coming to testify. I know that makes it a little bit more 23 difficult, but if we plan that in advance with initials or a 24 pseudonym for those individuals to garner that protection for 25 them, that is one consideration we would like with respect to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 3 of 47 3 H3GVGIUC 1 the trial. But I understand that all other matters would have 2 to be -- obviously it's a public trial and so we would not be 3 able to protect the other specifics. 4 THE COURT: Have you all reached an agreement to that 5 effect? 6 MS. McCAWLEY: No, your Honor. We were just 7 discussing that. That was what I had proposed to Mr. Pagliuca. 8 MR. PAGLIUCA: Your Honor, I certainly am not opposed 9 to further discussions about this issue. I think I would need 10 to know who we're talking about in particular as to the 11 witnesses. So I think we'll be able to deal with this, your 12 Honor. We'll just need to have some more -- a little bit of 13 detail that the parties are going to need to have to talk about 14 before we work something out. 15 Here's my concern, your Honor, I guess: If there's a 16 witness that shows up in court, I think it's prejudicial to the 17 defendant if we're using initials or things like that, because 18 it implies that something untoward has happened. 19 THE COURT: Correct me if I'm wrong, anybody who 20 testifies is going to have to state their identity -- 21 MR. PAGLIUCA: Right. 22 THE COURT: -- and whatever. It seems to me, that's 23 clear. Maybe I'm wrong about that. 24 There are occasions which we're all familiar with from 25 security reasons and whatever that sometimes people don't, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 4 of 47 4 H3GVGIUC 1 that's certainly the exception. And I would think that that 2 would not be the case, unless there is a particular application 3 for a particular person. 4 How does that sound to you all? 5 MR. PAGLIUCA: That's what I think, your Honor, what 6 you just said. 7 MS. McCAWLEY: Your Honor, if I could, I'd like the 8 opportunity -- because there are only a few of the witnesses 9 that fall into this category -- 10 THE COURT: Okay. That's one thing. Let's sort of 11 understand that that's -- without a specific application, and I 12 would think that that would be done sufficiently in advance so 13 that we can consider it not -- in other words, pretrial. 14 MS. McCAWLEY: Yes. 15 THE COURT: And I was hoping we'd have all this 16 resolved today. So maybe you all could think about that and 17 maybe we can cover that next week, who knows. 18 MS. McCAWLEY: Yes, your Honor. 19 THE COURT: As far as exhibits are concerned, I take 20 it that the same would be true with exhibits; that everything 21 goes unless somebody makes a particular application. 22 MS. McCAWLEY: Yes, your Honor, that's my 23 understanding. 24 MR. PAGLIUCA: That's my understanding as well, your 25 Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 5 of 47 5 H3GVGIUC 1 THE COURT: All right. 2 Well, that's some degree of clarification. And if you 3 all manage to do something better than that, I'd be grateful. 4 Now, aside from that, Mrs. Lincoln, how was the play? 5 I guess I should hear from the plaintiff about how 6 this -- the issue here, as I see it, is the handwriting 7 expert -- well, let's assume just for the moment that the black 8 book gets in. If the black book gets in, what's the 9 handwriting expert going to testify to? 10 Forgive me, I lost -- 11 MS. McCAWLEY: Sure. That's fine. 12 Let me give you a little bit of background. 13 We retained the handwriting expert in an abundance of 14 caution because the black book, which is a telephone directory, 15 has at the beginning of it handwriting on various pages by 16 Alfredo Rodriguez. So in order to make sure we could get the 17 document into evidence, we retained the handwriting expert to 18 be able to say the handwriting on these pages matched the other 19 documents that he testified under oath were his handwriting on 20 checks and things of that nature. So that's why there is any 21 issue with handwriting, only because the document itself on the 22 front of it, on the front few pages, has that handwriting. So 23 she would simply be testifying -- 24 THE COURT: That it's Rodriguez -- 25 MS. McCAWLEY: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 6 of 47 6 H3GVGIUC 1 THE COURT: Okay. 2 MS. McCAWLEY: That it matches his handwriting, it's 3 an exact match on his handwriting, yes. That would be the 4 purpose of her testimony. 5 THE COURT: So the objection on the business record, 6 as I understand it, is we don't have anybody who can testify 7 that it's a business record, or do we? 8 MS. McCAWLEY: Your Honor, I would say that we 9 absolutely do. 10 Let me just, if it's all right, preview the evidence 11 for you, since I believe that's the purpose of this hearing, so 12 you have an appreciation, first of all, for why the black book 13 is such a critical piece of evidence in the case, in our view, 14 of course, but also who can testify about it. 15 So the black book, as I said, is a telephone directory 16 of all the names and numbers of anybody who was associated with 17 either the defendant or Maxwell -- of the defendant or Epstein. 18 It was kept at their home; they had various homes, but the main 19 home in Palm Beach is where this document was taken from. It 20 was for purposes of the house staff being able to use to 21 contact people or when people called in, so it was a reference, 22 a telephone directory reference. 23 So what testimony do we have on that? 24 We have Maxwell herself -- and I'm going to review her 25 testimony; I have it for you here today -- in her deposition SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 7 of 47 7 H3GVGIUC 1 identified the black book, when I handed it to her as an 2 exhibit, as the stolen document. So she -- and I'll read that; 3 it's very clear -- authenticates that document. She even asked 4 me how did I get it. So that testimony is pretty powerful. 5 We then have two different house staff that have 6 testified about this document. 7 The first is Juan Allessi. He testified in this case 8 back in June and he was given the exhibit. He was the butler 9 for a period of time in Palm Beach. So he was responsible to 10 help with the management of the house. And he identified the 11 document, identified names of individuals in the document, 12 young girls who came over to provide these massages. There's a 13 section in the directory that's called "Florida Massages" that 14 has numbers, names of females, some parents' numbers. We 15 allege that there are underaged individuals in that directory 16 with their phone numbers. So we reviewed that with him. 17 He has testimony about the fact that the black book 18 was something that was kept in the course of their work. It 19 was something that was on Maxwell's desk. So I'm going to 20 review that testimony for you. 21 Then we have Alfredo Rodriguez. Now, Mr. Rodriguez 22 is, unfortunately, deceased. He testified in the Jane Doe 23 cases about the fact that there was this what they called the 24 black book, which was a telephone directory. So we have his 25 testimony. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 8 of 47 8 H3GVGIUC 1 We also have at trial Jeffrey Epstein, Sara Kellen, 2 and Nadia Marcinkova. 3 Now, at this point, we have been told that they are 4 planning to take the Fifth on everything. But this is a 5 telephone directory; we may be able to solicit information from 6 them about the directory itself. 7 So that's the universe of the individuals that we 8 anticipate will testify about this. If you don't mind, if I 9 can just pass you up my binder that has the testimony in it. 10 THE COURT: Sure. 11 MS. McCAWLEY: So what you're going to see in here is 12 the document itself, and then you're going to see the 13 testimony. 14 So the testimony, for example, Ms. Maxwell, I asked 15 her during her deposition: Was there a hard-copy book as well 16 as something on the computer or was there only electronic 17 information on the phone numbers? 18 This is after I handed her the document. 19 She said: I can only testify to what I know 20 obviously. And I believe that this is a copy of the stolen 21 document. I would love to know how you guys got it. 22 I said: Next, I'm asking you during the time you 23 worked for Jeffrey Epstein, was there a hard-copy document of 24 any kind that kept phone numbers for Jeffrey Epstein if he 25 needed to contact someone? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 9 of 47 9 H3GVGIUC 1 "A. The stolen document I have in front of me, that's what 2 you're referring to. 3 "Q. So was there -- during your time, was there no other -- 4 you mentioned information on a computer. Was there any 5 hard-copy document you would refer to to find someone's number? 6 "A. You have the stolen document in front of you. 7 "Q. You had access to this when you worked for Jeffrey 8 Epstein? 9 "A. This, I believe the book was stolen. That was the hard 10 copy, whatever was there. 11 "Q. So when you were working for Jeffrey Epstein, you were 12 able to access this book? 13 "A. This book, if this is what it is, I believe it is the 14 stolen document from his house." 15 So that is defendant's testimony when she reviews the 16 exhibit that we gave her, which is the black book, during her 17 deposition. She clearly authenticates it. 18 THE COURT: When you say "the black book," there's a 19 question about copy and so on. Do you have the original? 20 MS. McCAWLEY: We have a copy of what was taken. 21 When it's referred to as "the black book," I believe 22 that's because that's sort of colloquially what they referred 23 to -- the house staff referred to as this large document; they 24 called it the black book. And Juan Allessi calls it that as 25 well, so we've used that term in the course of this. But it's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 10 of 47 10 H3GVGIUC 1 really a telephone directory. 2 THE COURT: Yes, yes, I understand that. But it's not 3 the -- what you have is not the original. 4 MS. McCAWLEY: We have the copy. 5 The course of events is that Alfredo Rodriguez, who 6 was also a butler for Mr. Epstein and the defendant, took the 7 document when he left his employment, stole it, left with it. 8 And then he tried to sell that document. In the course of 9 trying to do that, to sell it, there was an undercover sting, 10 because they knew he was trying to sell evidence basically in a 11 case. And so they obtained the document, and then they 12 produced it in the civil discovery in the Jane Doe 102 cases in 13 Florida. So it was a document in that case -- in discovery in 14 that case as well, and that's why we have testimony on -- 15 THE COURT: Was it introduced in that case? 16 MS. McCAWLEY: It was in the course of depositions. 17 Those cases were settled, I believe, your Honor, so I don't 18 think there was a trial on any of those issues. 19 But to be clear on the fact that -- because I 20 understand the concern over this, and you'll hear from 21 Mr. Pagliuca that, you know, Oh, well, it looks like it's 22 photocopied and these are differences. Defendant didn't 23 testify and we have not heard yet that any of the information 24 in the book is wrong. In other words, you'll see, for example, 25 on page 41, there's a list -- and I've highlighted it for you, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 11 of 47 11 H3GVGIUC 1 flagged it -- of Maxwell's family members, all of her family 2 members, their London phone numbers, her Yorkie's veterinarian 3 is list in there. There's no debate that these numbers of 4 these individuals -- Prince Andrew's number is in there -- all 5 of this information in the black book is incorrect, no one is 6 saying that. What they are saying is, Well, I don't know how 7 you got it. And I want to say to Maxwell, Why didn't you 8 produce it in this case? It was on your computer. Where is 9 it? Why do we have to fight over a document that should have 10 been produced in this matter? 11 So, your Honor, I think the integrity of the document 12 is there. But I also want to tell you that there's a couple -- 13 when we look at it from an evidentiary perspective, there are a 14 couple of reasons why it's important, and there are a couple of 15 reasons why it doesn't have to come in for the truth of the 16 matter asserted. 17 In other words, the fact that, for example, Virginia, 18 my client's number is listed in the massage section, whether or 19 not that number is correct doesn't matter. What matters is the 20 fact that there was information in this book that Maxwell was 21 knowledgeable of at the time she made her defamatory statement. 22 So not offered for the truth of the fact that the number was 23 one, two, three, four, but for the fact that she was aware of 24 this information. 25 So there's a couple ways this can come into evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 12 of 47 12 H3GVGIUC 1 Of course, we would like to propose it for the truth of the 2 matter asserted, and I think we can do that under the 3 exceptions that I'm going to talk about here today. But there 4 are also other ways that it can get in, be admissible not for 5 the truth, but to show her awareness of it. 6 So we talked about Maxwell's testimony. 7 The other person I think is really key, because he's 8 basically an uninterested party, is Juan Allessi. So Juan 9 Allessi was the house staff member that we deposed in this 10 matter. He identified the book. That's also in the document 11 that I gave you. What he says -- he's shown the exhibit. And 12 he says: This was a Rolodex. It was a blue book. It was 13 called the blue or the black book. I think it was thick. 14 And he says -- okay. 15 He says: With these pages in it, to begin with -- he 16 starts looking at the pages. 17 And then he says -- the question is: And where would 18 this book be kept in the house? 19 This book was kept at Jeffrey's desk, his desk, his 20 pool house, it was with Ms. Maxwell, it was in his bedroom. 21 "Q. Ms. Maxwell, what -- you're naming the locations where the 22 book was kept; correct? 23 "A. Yes, at Ms. Maxwell's desk." 24 And that's in Juan Allessi's testimony, the transcript 25 that I gave you, at 114 and 115. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 13 of 47 13 H3GVGIUC 1 And then finally, your Honor, we have Rodriguez's 2 testimony, who is the deceased individual who took the book. 3 And he testified that Ms. Maxwell kept the book with the names 4 of the girls who would provide the massages. 5 And the question was: Did she keep them on a pad of 6 paper, did she keep them in a notebook, did she keep them in 7 her computer? 8 And he said, answer: We used to have internal books 9 for pilots, masseuses, chefs, so they would have a -- she would 10 have a copy of the black book with herself as well as on her 11 computer. 12 So that's from Rodriguez in the Jane Doe 102 cases. 13 Of course he's deceased, so we couldn't depose him in this 14 case. 15 So, your Honor, I believe, in my view, that there is 16 definitely a plethora of witness testimony we can utilize to, 17 first, authenticate under 901, which, as you know, that burden 18 is not extremely high. The Discenzi case, which we cite, which 19 is a Second Circuit case from 2001, talks about the fact that 20 authentication is not a beyond-a-reasonable-doubt standard; 21 it's a standard for the reasonable juror to be able to say the 22 document is what it purports to be. This is a telephone 23 directory. It's got the names and numbers in it; it is what it 24 purports to be. So I think we clearly meet that hurdle, your 25 Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 14 of 47 14 H3GVGIUC 1 And then when we look at the exceptions, you mention 2 the business records exception. I believe that we can 3 establish through the testimony that this was a document that 4 the house staff used in order to contact these young girls, 5 contact other individuals that they socialized with, what have 6 you; it was kept in the course of their employment for purposes 7 of a telephone directory. So I believe it meets that 8 qualification under 803(6). 9 But, your Honor, there's a couple of others that I 10 want to point out to you. 11 I also believe that it's nonhearsay under 801(d)(2) 12 because it's an admission of Maxwell. She's admitted that this 13 is the stolen document. She's also admitted in her testimony, 14 because I asked her about some entries, there's the name of 15 Gwendolyn Beck, and that's in your binder as well. Gwendolyn 16 Beck is listed under the category that says "Florida Massage." 17 And so I asked her, Is she a masseuse? 18 And she said, No. 19 I said, Why is she there? 20 And she said, An input error, were her words. 21 So she also adopts the document in that she knows that 22 there were input errors in it; it was something they had at the 23 house that they utilized for contacting people. 24 I also think it falls within an exception that's not 25 regularly used, but it does address this issue, and that's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 15 of 47 15 H3GVGIUC 1 803(17). That's a market reports and directories exception. 2 What that does it is says telephone directories have an 3 inherent exception to the hearsay rule because typically there 4 are not an immense amount of errors in them. They're phone 5 numbers with names; it's not a document that doesn't have 6 trustworthiness to it. So I think it falls under that 7 exception as well. 8 But as a fallback, I think this is the perfect type of 9 document for 807, which is the residual hearsay exception, 10 because it meets all four prongs of that test, your Honor. I 11 know that is not something that's often used, but the reason 12 for that exception is if you've got a document that is what it 13 purports to be and has the circumstances of trustworthiness 14 about it, it's an important piece of material evidence in the 15 case, it's probative on the point, and admitting it is in the 16 interest of justice. I think that's the fourth prong. I think 17 that's key here. Because we don't have Jeffrey Epstein 18 testifying about it. 19 If he takes the Fifth, I can't say, Was this the 20 record that you kept in your house for all your house staff to 21 use. It's in the interest of justice because this is something 22 that wasn't produced in this case; so I don't have it directly 23 from Maxwell's computer. But it is something that is what it 24 purports to be and should be admitted into evidence, your 25 Honor. So I believe it meets that exception. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 16 of 47 16 H3GVGIUC 1 Finally, I just want to cover very briefly the fact 2 that it meets for nonhearsay purposes. So this document can be 3 admitted to show that on January 2nd, when Maxwell said my 4 client was lying about her claims of sexual abuse and 5 trafficking, that those claims were obvious lies; that she was 6 aware that this document existed. Even if the numbers in it 7 are wrong, even if there's a name in it that's incorrect, she 8 was aware that there was a document that had these categories 9 in it. For each of the houses there are lists of female 10 masseuses and things of that nature. Whether they're actually 11 masseuses is contested obviously, but there's a category for 12 those various places. 13 So we believe that it can be offered for that reason, 14 the nonhearsay reasons, to show the relationship between 15 Epstein and Maxwell, the fact that all of her family members 16 are listed in it, it's got other contact information that is 17 important to her personal world that's in that document. So we 18 believe it should be admitted for those reasons as well. 19 Your Honor, finally, I wanted to say if the concern is 20 over the handwriting on the first several pages of the 21 document -- and again, we did the handwriting expert really in 22 an abundance of caution so that we could be sure to get the 23 document into evidence -- we could just admit the piece of the 24 document that's the directory itself. So that would be another 25 option to bypass any concern to the extent there is concern SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 17 of 47 17 H3GVGIUC 1 over that. 2 THE COURT: The handwriting in the front, what is the 3 handwriting in the front? 4 MS. McCAWLEY: The handwriting in the front is Alfredo 5 Rodriguez's handwriting. He wrote out basically on the front 6 of the document the people that he thought were important in 7 this sex trafficking scheme. So he put the people that he 8 thought had important information. 9 THE COURT: So it's not really -- that's separate and 10 apart from the -- 11 MS. McCAWLEY: The actual directory, yes, yes. 12 It was produced as an entire document; but the first 13 several pages, which is attached actually to their motion in 14 limine -- but there's an affidavit from the special agent 15 Christina Pryor in Florida that lays out what that is and the 16 fact that that document was the purchase document, the one that 17 he tried to sell. 18 THE COURT: That handwriting is a different issue than 19 the admission of the book. 20 MS. McCAWLEY: Yes. So, in other words, that's what 21 I'm trying to say; it could be separated. So we did it, again, 22 in an abundance of caution, because that's how we have the 23 document. The first, I think, six pages are the handwriting -- 24 THE COURT: Let me ask you this. 25 MS. McCAWLEY: Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 18 of 47 18 H3GVGIUC 1 THE COURT: Does Rodriguez's testimony get in in this 2 case? I think not. 3 MS. McCAWLEY: That's a separate hearing, I think, in 4 two weeks, your Honor. 5 So there's a debate over that. There is testimony 6 from Rodriguez's testimony in the Jane Doe 102 complaint -- or 7 case, I'm sorry, that we are trying to get into evidence. 8 THE COURT: Whatever the decision on Rodriguez's 9 testimony is, that portion, that handwriting portion, is going 10 to be the same issue, and that's not a black book issue. 11 MS. McCAWLEY: Right. 12 I think the issue can be separated is what I'm trying 13 to say. 14 THE COURT: Well, it is separate, is it not? 15 MS. McCAWLEY: Yes. I mean the directory itself could 16 be admitted into evidence, regardless of the -- 17 THE COURT: No, but I mean there are two different 18 things. The directory is whatever it is; maybe it's a business 19 record or whatever. But his handwriting is not part of the 20 black book. 21 MS. McCAWLEY: Right. 22 The only reason we tied it is because what you're 23 probably going to hear from Mr. Pagliuca is they brought up 24 things like chain of custody, which I don't believe is at issue 25 here, but concerns over that. So we wanted to make sure that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 19 of 47 19 H3GVGIUC 1 we had somebody who could say, This came from this source, and 2 you can tell -- if for no other reason, you can tell because 3 the handwriting matches up. 4 THE COURT: You mean you would want that handwriting 5 admitted not for the substance of what is being said, but 6 simply to identify that it's Rodriguez and Rodriguez had the 7 book. 8 MS. McCAWLEY: Exactly. Exactly. 9 The handwriting is not being put in for the truth of 10 whatever he was writing or anything of that nature. We only 11 did it, again, in an abundance of caution to say it matches up. 12 Because we can't bring him in here, because he's deceased. So 13 it matches up; this is what he took; this is the directory. 14 Again, Maxwell identified it. 15 THE COURT: All of that relates to the chain of 16 custody presumably. 17 MS. McCAWLEY: Right, which I think -- it does. But I 18 think that's a bit of a red herring because, again, we're not 19 talking about -- 20 THE COURT: Well, I'm leaving aside Maxwell's 21 statement. 22 MS. McCAWLEY: Sure. Right. 23 We're not talking about cocaine being transported 24 where you would have a concern over the chain of custody and it 25 being what it is. It's the telephone directory. There's no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 20 of 47 20 H3GVGIUC 1 question about that. 2 So, yes, your Honor. So we believe that it is 3 admissible. At a minimum, we'd like you to allow us to at 4 least try to present that at trial. If you have any concerns, 5 because we will, again, have the witnesses here, so we can 6 present additional testimony to the extent there is any 7 concern. But we do believe that that is a critical piece of 8 evidence that should be admitted and the jury should be able to 9 see. 10 Thank you, your Honor. 11 MR. PAGLIUCA: Your Honor, first let me start with the 12 Court set this for an evidentiary hearing today, which I 13 understood to mean that we were going to actually have some 14 evidence, which we don't. And it shouldn't be a do-over at 15 trial after we argue about all of this. 16 But I think it's important for the Court to understand 17 and put into context first what I will call the Alfredo 18 Rodriguez timeline. 19 By the way, your Honor, there's a response that I have 20 due tomorrow on this issue. I think there's a reply on this 21 issue as well that will be forthcoming. So the Court is going 22 to get additional briefing on this in the next few days. 23 First of all, your Honor, Mr. Rodriguez worked for 24 Mr. Epstein, as I understand it, in 2004 for a period of six 25 months. That testimony is reflected in Mr. Rodriguez's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 21 of 47 21 H3GVGIUC 1 deposition testimony. I will give the Court those pages. So 2 we're talking about a short period of time in 2004 that 3 Mr. Rodriguez was actually part of Mr. Epstein's employ. I 4 bring that up because we are not talking about a long-term 5 trusted employee that would have any actual information about 6 anything. 7 After 2005, he works for someone else. Mr. Rodriguez 8 is first interviewed by the Palm Beach Police Department in 9 2006 and denies possessing any documents. He's then 10 interviewed by the FBI in 2007 and denies possessing any 11 documents. 12 In 2009, he is the subject of not one, but two 13 depositions in which he denies possessing any documents. Then 14 in August of 2009, Mr. Rodriguez contacts what the FBI refers 15 to as "CW." CW is one of the lawyers involved in the Jane Doe 16 cases, who I reasonably believe is Mr. Edwards, who's one of 17 the lawyers in this case, your Honor. And CW then contacts the 18 FBI; and the FBI sets up a sting operation to indict 19 Mr. Rodriguez. 20 If I can approach, your Honor, I'd like to talk a 21 little bit about the affidavit that I will tender as 22 Defendant's Exhibit 1 to this hearing. 23 Your Honor, this is the arrest affidavit as part of 24 the criminal complaint involving Mr. Rodriguez. This is 25 important, your Honor, in terms of this discussion because what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 22 of 47 22 H3GVGIUC 1 you will see when you compare the description of the documents, 2 plural -- and the Court has already identified that as an issue 3 with what the plaintiff wants to proffer as evidence in this 4 case -- you will see that they are two different things. 5 In paragraph 6 of this document, your Honor, the 6 affiant, who's Special Agent Pryor, at the end of paragraph 6 7 says that the CW, who I believe is Mr. Edwards, explained this 8 conversation with Rodriguez. And according to CW, Rodriguez 9 explained that he, Rodriguez, not anyone else, had compiled 10 lists of additional victims in the case and their contact 11 information. Rodriguez explained that the information 12 contained hundreds of additional victims and their phone 13 numbers from diverse geographical locations, including New 14 York, New Mexico, and Paris, France. So the FBI is affirming 15 initially that Rodriguez is claiming that this is his document. 16 Then we go to paragraph 9 of this arrest warrant 17 affidavit, your Honor. The FBI has an undercover employee that 18 sets up the telephone conversation with Mr. Rodriguez, which is 19 recounted in paragraph 9. The undercover employee of the FBI 20 calls Mr. Rodriguez on October 29th, 2009, and Mr. Rodriguez 21 says he didn't turn this over before, because in the first 22 bracketed paragraph 1 at the end of paragraph 9, it was his 23 property and he should be compensated for it. So Rodriguez, to 24 the FBI, is claiming that this is his property, not something 25 that belonged to Epstein or anyone else. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 23 of 47 23 H3GVGIUC 1 Then, your Honor, the next important part of this 2 document is paragraph 11 of this arrest warrant affidavit. 3 It's on page 4. This is on November 3rd, is the meeting 4 between Rodriguez and the undercover agent. And at that 5 meeting, the FBI says that Rodriguez produced a small bound 6 book and several sheets of legal pad paper containing 7 handwritten notes. So what they are describing here, your 8 Honor, is two separate items of evidence that they recovered 9 from Rodriguez, the first being these legal pad notations, and 10 the second being a bound book. 11 If I can approach now, your Honor, with Exhibit B to 12 this hearing. You have multiple copies of this, but I thought 13 it might be easier for discussion purposes if you had one when 14 we are talking about the actual document. 15 There are a couple of things, your Honor, that are 16 critically important about how this document appears, which 17 belies all of the assertions that were made by plaintiff's 18 counsel about this. 19 The first thing that I will point out, your Honor, is, 20 as you already noted, that the first what I have is five pages 21 of this document are handwritten and, according to the 22 plaintiff, it's by Mr. Rodriguez. When you look at the 23 substance of the handwriting in the first five pages, your 24 Honor, and if you go to page 5, in the middle of page 5, there 25 is -- first of all, there are a number of stars next to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 24 of 47 24 H3GVGIUC 1 different names. But in the middle, there's a bracket. And it 2 says "important witness" there, your Honor. 3 THE COURT: I'm not -- 4 MR. PAGLIUCA: Page 5. They are paginated at the 5 bottom of the document, your Honor. 6 THE COURT: Oh, yes, I see. 7 MR. PAGLIUCA: And they are double-sided. 8 THE COURT: Oh, yes, yes. 9 MR. PAGLIUCA: So if we look at page 5, we have this 10 bracket, "important witness," and then these names and phone 11 numbers. And then if you go down, there's another name at the 12 bottom of the page. And then it says, "Witness, interacted and 13 chat daily with underaged girls." 14 So this is clearly not a phone directory. 15 THE COURT: Excuse me. Where I'm looking at says 16 "important email/addresses." 17 MR. PAGLIUCA: That's at the top of the page. 18 Correct. 19 THE COURT: And then -- 20 MR. PAGLIUCA: And then in the middle of the page 21 there's a bracket. 22 THE COURT: Oh, yes. 23 MR. PAGLIUCA: "Important witness." 24 THE COURT: I got you. 25 MR. PAGLIUCA: And then at the bottom of the page SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 25 of 47 25 H3GVGIUC 1 there's a description of a named person, "Witness, interacted 2 and chat daily with underaged girls." 3 So this document is prepared by Mr. Rodriguez in an 4 effort to make money in connection with these Jane Doe cases. 5 Now, here's what is also very curious and very 6 interesting about this document, your Honor, and this cannot be 7 lost in the shuffle here: The document in its entirety, your 8 Honor, is paginated 1 through 97. So here's the question: How 9 did those numbers get on this document, your Honor? When we 10 compare the description of what the FBI got to this document, 11 the FBI is describing handwritten legal pages and then a book. 12 THE COURT: It would appear, would it not, that the 13 book is what follows. 14 MR. PAGLIUCA: Well, one might think that, your Honor. 15 However, it's not paginated in this format when it's taken by 16 the FBI. And that's the point that I'm trying to make here, 17 that this document is paginated after the fact. 18 I know your Honor has done hundreds, if not thousands, 19 of criminal cases and involving the FBI. Your Honor knows, as 20 I do, for having done that kind of work, that when the FBI 21 takes something as evidence, they log it. And they are going 22 to log it in this case as two separate items, and it's going to 23 be produced -- if it gets produced as part of Rule 16 criminal 24 discovery, it's going to get produced exactly how it was 25 obtained by the FBI. And they describe what it looked like in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 26 of 47 26 H3GVGIUC 1 this affidavit. 2 They do not describe what the Court has that was shown 3 to Ms. Maxwell as a complete Exhibit 13. This document has 4 never been referred to as anything other than some "black book" 5 prepared by Maxwell by the plaintiff. I think now they realize 6 the multitude of evidentiary problems with this. So now they 7 are trying to say, Oh, well, we take it back. It's not one 8 document; maybe it's two documents, because we want part of it. 9 But it's produced as one document here with 97 pages, which I 10 submit to you, your Honor, happened after the fact. Recall 11 that the FBI gets this document in 2009. The first time I ever 12 see it as part of this case, so in 2015, I'm supposing, is the 13 first time I see this. 14 What I want to switch to, your Honor, because I think 15 it becomes important, as well, this document has a lot of 16 unexplained problems with it. 17 So on the first page, if you look at the top, this is 18 the cover page of this document. You can see that there used 19 to be staples on the first page, because there are these little 20 black holes that look exactly like somebody removed staples and 21 then photocopied it. And then if you look at the fourth page 22 of the document, which also says "confidential," it looks like 23 staples have been photocopied over there at the top of the 24 page. And when you continue through the document, there are 25 all these odd-looking, what appear to be tabs that appear at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 27 of 47 27 H3GVGIUC 1 the sides of the pages. For example, page 6, page 7, there are 2 these tabs that are sticking off the side that look like they 3 got photocopied that are unexplained, and randomly throughout 4 this document appear and disappear, making the entire content 5 of this document highly suspect, in my view. 6 When you further go through the document, there's 7 highlighting, there's underlining, there are brackets, there 8 are boxes. So all of this tells you that this document has 9 been manipulated, and I don't mean manipulated in a bad way; 10 it's changed over time, which leads me next to the chain of 11 custody. 12 THE COURT: What was shown to the defendant? 13 MR. PAGLIUCA: This document itself, your Honor, 14 exhibit -- this is Maxwell -- 15 THE COURT: What I have in my hand? 16 MR. PAGLIUCA: Yes, the one you have in your hand, 17 Maxwell Exhibit 13. And you can see there's two stickers on 18 there, the Maxwell Exhibit 13, 4/22/16, and then my sticker as 19 well. 20 THE COURT: Oh, yes. I see. I see. 21 MR. PAGLIUCA: That's what was shown to my client. 22 THE COURT: Okay. Thanks. 23 MR. PAGLIUCA: So Mr. Rodriguez, your Honor, to 24 continue with this saga, he first gets arrested for this and 25 then pleads guilty on March 18th, 2010, to obstruction of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 28 of 47 28 H3GVGIUC 1 justice. On the same day, the same day, March 18th, 2010, the 2 same day, he drives from the meeting with the undercover folks 3 to somewhere in Miami and gets arrested with a bunch of guns 4 when he's coming out of a house carrying guns. And the 5 arresting officers then go into his car and find the plea 6 paperwork from this plea. They then go to his house, they 7 search his house, and he ends up with somewhere in the 8 neighborhood of 84 guns and gets indicted under 18 U.S.C. 9 922(g), possession of a weapon by a convicted felon. So we 10 have a two-time now-convicted felon that is the seminal font, 11 according to the plaintiff, of this highly-reliable document. 12 In my view, this is a very curious transition here. 13 The plaintiff says in their papers that the document, 14 the document, whatever that is, goes from the FBI to 15 Mr. Rodriguez's criminal defense lawyer as part of the criminal 16 discovery; and then somehow Mr. Edwards ends up with that, and 17 then somehow that gets produced in this case. Well, that is 18 not a reliable chain of custody, your Honor. It vitiates any 19 business record exception or any other exception in the hearsay 20 rules, because no one knows what happened to this thing in 21 between 2009 and 2015, when it gets produced in this case. I 22 am not willing to accept plaintiff's representations on this as 23 to what it is or isn't. I've never had the opportunity to 24 question or cross-examine anybody about this document; it just 25 shows up in the course of this case. Mr. Edwards somehow got SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 824 Filed 04/03/17 Page 29 of 47 29 H3GVGIUC 1 it and just trust us about the chain of custody here, which 2 does not match up with the FBI affidavit. 3 So let me now talk about what they claim is the 4 deposition testimony. 5 Your Honor, this is selective editorializing by 6 plaintiff's counsel about what these transcripts say. So I 7 would just like to tender to the Court, having gone through 8 these transcripts -- I tried, and I think I accomplished, 9 pulling out every reference to this document that I could find 10 in the Allessi, Rodriguez, and Maxwell deposition testimony. 11 And I hate to burden the Court -- well, it's not too much, but 12 we shouldn't have to be doing this. Unfortunately, you have 13 this selective ellipses on the actual testimony which ends up 14 making this very, in my view, disingenuous. 15 So Exhibit C, your Honor, is going to be Mr. Allessi's 16 testimony; Exhibit D is going to be Mr. Rodriguez's testimony; 17 and Exhibit E is going to be Ms. Maxwell's testimony. 18 So let me start, your Honor, with Ms. Maxwell's 19 testimony, which I believe is Exhibit E. 20 What I would like the Court to note is that, first of 21 all, what you have, Exhibit 13 in this hearing, Exhibit A, was 22 what was shown to Ms. Maxwell. There is no way that she could 23 have ever seen that document before, because as you've already 24 pointed out, the first