There will be no decision today on Sean “Diddy” Combs’ latest request for bail.
After a contentious two-hour hearing in New York City, a federal judge has told both the U.S. Attorney’s Office and the defense team that he wants more clarification of how Combs has been communicating from behind bars in the two months since his arrest on sex trafficking charges. Judge Arun Subramanian also wants to know from both sides exactly what forms of communication Combs is allowed by the Federal Bureau of Prisons.
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The feds and the defense have until noon ET on November 25 to submit the information. A decision from Subramanian could come before Thanksgiving.
Subramanian said the briefs due at noon on Monday should address how much leeway Combs is entitled to in publicly defending himself. One of his lawyers, Alexandra Shapiro, pointed to the modified gag order on Donald Trump in his New York State criminal trial this spring and said it allowed Trump to freely criticize the case against him — which the former and future president did in daily appearances outside the courtroom.
In what might be a pivotal consideration for the judge, pretrial services officials sided with prosecutors and recommended against Diddy’s big bail package with a trio of private security guards monitoring him 24/7 and enforcing strict limits on outside contacts.
Having said that, no new hearing has been put on the calendar yet.
With family and friends nearby, Combs was sitting there unshackled in the Daniel Patrick Moynihan Courthouse on Friday. The notoriously self-promoting rapper was denied bail twice in quick succession by other judges just after his arrest two months ago.
Seeing new civil suits filed almost every day for the years of his celebrity-attended, drug-fueled and videotaped “freak offs,” Combs is charged in the criminal case from the U.S. Attorney’s Office with racketeering, sex trafficking and transportation to engage in prostitution. The 55-year-old Grammy winner entered a not guilty plea. Combs could face life in prison if found guilty in a trial set to start on May 5.
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Today’s courtroom session follows Combs’ lawyers most recent tactic of chiseling away at the government’s case with two new-ish hammers. They have been focusing on evidence obtained from a recent sweep of the Brooklyn jail where Combs is in custody and a video that prosecutors used to bolster their argument against freeing Combs before a trial scheduled to begin next year.
Superseding all that, the feds have said over and over that one of their biggest concerns about Combs being on the streets is efforts to intimidate and “blackmail’ potential witnesses and Jane Does.
The defense team says the jailhouse evidence is privileged attorney-client information and the video was deceptively edited by prosecutors to persuade a judge to deny Combs bail. The material obtained from Combs’ cell was photographed by a Bureau of Prisons investigator in a jail-wide search for inmate contraband. As for the much-seen video, prosecutors contend that all they did was blur the face of Combs’ ex-girlfriend Cassie Ventura in the 2016 footage as the “I’ll Be Missing You” singer attacked her.
The harrowing video was first seen on CNN earlier this year and picked up everywhere almost immediately.
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Looking ultimately to get the case tossed out as he gets his client out on bail, Diddy’s defense lawyer Mark Agnifilo wants the judge to consider removing the prosecution team from the case if he can’t have the indictment entirely dismissed.
Soon to be under the new boss of Donald Trump-appointed Jay Clayton, Assistant U.S. Attorney Christy Slavik countered in a separate hearing this week that the disputed materials surfaced during a jail sweep that was “pre-planned” by the Bureau of Prisons. She added that her office was not communicating or coordinating with that agency, and the material was vetted by a so-called “filter team” before prosecutors even saw it.
The feds also have rebuffed previous moves by the defense to smear them with leaking to CNN the 2016 video of Combs kicking the crap out of Ventura. The SDNY office of current U.S. Attorney Damian Williams denied they even had the video in their possession when it surfaced in the spring. The office also said Homeland Security officials who participated in the raids on Combs’ L.A. and Miami homes in March, did not have the video to leak either.
Soon afterward, the defense dropped that line of discussion.
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In response to the often-passionate pitches from both parties, Subramanian earlier this week ordered the U.S. Attorney’s Office in Manhattan to destroy all its copies of the 19 pages of materials snagged from Combs’ storage locker at Metropolitan Detention Center. The once-highflying Bad Boy Records founder has been detained in the notoriously harsh NYC facility since being cuffed and arrested in a hotel lobby by the NYPD and others in mid-September.
Combs is offering to cover a $50 million bond, wear an ankle monitor, stay off the internet, stay at one of his homes in NYC or Miami under the surveillance of a private security agency and pre-clear any contact with family members through the government. Painting the feds as hypocrites and offering one form of justice to one defendant and another to Combs, defense lawyers have pointed to the $10 million bail package approved in October for another accused sex trafficker, former Abercrombie & Fitch CEO Michael Jeffries. Accused of soliciting male models and others to sex parties with promises of money and career prospects, the ex-executive is facing a federal criminal trial in Long Island.
To all that, with their client’s passport already in the hands of the feds, Combs’ lawyers have long said he is not a flight risk. At one point this afternoon, it looked like Judge Subramanian was seriously considering granting Combs’ release as the bench and lawyers discussed possible locations for the defendant to be housed in with an Upper East Side apartment was picked as best.
“Mr. Combs fully intends to face these charges,” they wrote. “The prospect of a conviction does not materially change his incentives here, where his reputation has already been destroyed by the government’s allegations and aggressive and deceptive media tactics,and can only be rebuilt by winning at trial.”
The defense team had the November 19 hearing scheduled on an emergency basis after arguing that the seized notes contain privileged details of his planned trial defense. In fact, defense attorneys Agnifilo and Teny Geragos pointed out the court that some of the material was clearly labeled “legal” in Combs’ own handwriting when they were photographed without his knowledge.
in an order posted Wednesday, Subramanian wrote that Combs’ lawyers need to address an apparent discrepancy. The judge wants to know why the word “legal” appears on the folder that Agnifilo handed to the judge on Tuesday when it doesn’t appear in photographs of the same folder from the raid.
That was then, today Agnifilo admitted to the judge that he wasn’t sure what material had “legal” written on it and what didn’t, to Judge Subramanian’s clear displeasure.
Friday’s admission certainly was a kick to Agnifilo’s proclamation in court on Tuesday that the October jail raid was a “pretext” whose true target was Combs. The government is violating Combs’ right to a fair trial, Agnifilo said, by using the material — which includes, among other things, the name of a potential defense witness — to oppose Combs’ offer of a big-ticket bail package and to continue building a case against the record label CEO.
The photographed notes also went to a federal grand jury that continues to investigate Combs, and which subpoenaed the Bureau of Prisons after the jail sweep, AUSA Slavik told the court earlier this week, arguing that nothing in 19 pages was privileged. Also, in the chain of custody, the prosecutor said, was a “filter team” of government lawyers that operates separately from the prosecution team to weed out privileged information that prosecutors cannot have.
Slavik argued that nothing in 19 pages was privileged. Under a handwritten heading of “things to do,” she said, were phone numbers, notes about personal finances, family birthdays and inspirational quotes. There was also evidence of “continued obstruction” by Combs including details about efforts to bribe or find dirt on government witnesses, the AUSA said.
The defense’s latest bail memo, filed on Thursday, offers a glimpse into life behind bars for the faded media mogul. Regardless of what the government says, Combs, the defense insisted wasn’t using other inmates’ phone time to avoid having his calls monitored. “If anything, that Mr. Combs needs to resort to sharing minutes demonstrates that the conditions at MDC do not permit an adequate defense preparation,” they wrote.
The memo also called the government’s rationale for opposing bail “fictional.”
Defense lawyers argued that even before Combs’ arrest, federal prosecutors had footage corroborating his version of a violent incident with then-girlfriend Cassie Ventura — but instead went to the original judge in the case, Andrew Carter, with “an altered video that omitted key scenes and presented events materially out of order” to press for Combs’ detention.
The grueling clip, which first aired on CNN, shows an enraged Combs chasing, kicking and throwing Ventura to the ground in the hallway of a Los Angeles hotel in 2016.
Prosecutors cite the hard to watch video, which Combs purchased the day after the assault for tens of thousands of dollars, as proof that Ventura was “Victim 1” of the sex trafficking ring described in the indictment, although the charges don’t name her and don’t reference any other victims by number. It’s not yet clear whether the grand jury that is still investigating Combs will hand down a revised indictment identifying multiple victims.
Combs’ lawyers, meanwhile, have argued repeatedly that Ventura — who sued Combs in a civil case that the former Making the Band producer and star settled quickly — was no victim, but was a willing participant in drug-fueled sex parties that Combs staged in home and hotel rooms for years.
The government alleges that Combs and his aides coerced Ventura and other women into group sex with male prostitutes, and that the women were drugged, fed IV fluids to keep them from passing out from dehydration and exhaustion, and physically barred from leaving the locations where these marathon sexual encounters were staged. Some “freak Offs” were filmed, in all likelihood to compromise or silence participants, prosecutors say.
Combs’ lawyers previewed today’s hearing by offering to put a forensic video analyst on the stand to walk the judge through the unedited footage of the hotel incident and show that Combs and Ventura were not having a violent domestic quarrel in the hallway. Combs, seen on camera wearing only a towel around his waist, was simply trying to retrieve his clothes and cellphone after Ventura had run off with them, his lawyers wrote.