2.Hearsay Sidebar and Ruling
35 linesMS. SASSOON: Objection. Sidebar, your Honor.
JUDGE KAPLAN: Okay.
(Continued on next page)
(At the sidebar)
MS. SASSOON: I'm not entirely sure where this is going, but I asked for a sidebar because there is a conversation described in Michael Lewis's book that is sourced to the defendant that we consider a false exculpatory and inadmissible hearsay, and I don't know if that is where you're going, but I would ask for a preview outside the presence of the jury to lodge any hearsay objections.
MR. COHEN: Sure.
JUDGE KAPLAN: Mr. Cohen.
MR. COHEN: Where this is going is, he had a conversation——he, the defendant, had a conversation with Nishad who said, What do I tell Zane Tackett, who was the person dealing with institutional investors, and the defendant said, I don't think we did anything wrong. I don't think you did anything wrong. And Nishad said, That's not good enough. And that's what I'm seeking to elicit.
MS. SASSOON: Your Honor, we would object to that as hearsay. Does not go to his state of mind because it does not meet the contemporaneous requirement of the state of mind rule. It's after the collapse had effectively happened, the defendant's been exposed, he's trying to cover his tracks and he's trying to prevent——
MR. COHEN: That's the government's interpretation of the evidence. We're entitled to bring it out and argue the opposite interpretation, which is that our client was continuing to say that he thought neither he nor Mr. Singh had done anything wrong, then Mr. Singh is acting in an opposite way. It's really a relevancy objection.
JUDGE KAPLAN: Give me the offer of proof again exactly?
MR. COHEN: Sure. It's——I don't think it's the passage counsel was thinking of, but anyway, the offer of proof is, it speaks to Mr. —— Nishad says to him, I need to know what to say to Zane Tackett, who was head of institutional invest——
JUDGE KAPLAN: I know.
MR. COHEN: Okay. And Mr. Bankman-Fried says, Well, I will say tell him we didn't do anything wrong. I didn't, you didn't. And Mr. Singh says, That's not good enough. That's the sum and substance I'm trying to elicit.
JUDGE KAPLAN: And you say that "that's not good enough" is not admissible because?
MS. SASSOON: The whole thing of "we didn't do anything wrong" is not admissible. It's not a statement of his then-existing state of mind as to future intent or plan. It's a retrospective statement to try to absolve himself of responsibility and under the cases that interpret Rule 803(3), like Cardascia, the state of mind exception focuses on the contemporaneity of the statement and the unlikelihood of deliberate or conscious misrepresentation. This conversation has every indicia of deliberate or conscious misrepresentation, and this does not pertain to future intent or plans. It's after the scheme has been exposed.
MR. COHEN: It's after the bankruptcy filing, your Honor, on November 11th, when, according to the government, the conspiracy is still in effect. This is the first time I've heard in this trial that the conspiracy ended the first week of November.
JUDGE KAPLAN: I don't think you heard that. I certainly didn't.
MS. SASSOON: And——
MR. COHEN: Can I finish, please.
MS. SASSOON: I'm sorry.
MR. COHEN: And the fact that the defendant is testifying to his own state of mind, that he believed he had not done anything wrong during that period before the filing, that he didn't think Mr. Singh had done anything wrong before the filing, is certainly relevant to the issues in this case, and certainly goes to his state of mind.
MS. SASSOON: Your Honor, there's no general exception that any statement during a conspiracy is admissible under 803(3). Only the government is permitted to put in co-conspirator statements. What the defense has to show is that the statement itself pertains to future intent or plan. The bankruptcy happened later, but at this point employees are demanding answers, the defendant is in hot water, he's lying on Twitter, he's trying to cover——
MR. COHEN: That's their interpretation.
JUDGE KAPLAN: Stop interrupting, please.
MR. COHEN: I'm sorry. I'm sorry. I'm sorry.
MS. SASSOON: And if he wants to get on that stand and say, "I didn't think I was doing anything wrong," that's one thing, but to offer a self-serving hearsay statement that he gave to his employee, who he wanted to enlist in not exposing his crimes, does not meet Rule 803(3).
MR. COHEN: We just heard the government's summation on that point. They're entitled to give it, your Honor, but the defendant is entitled to say, at the time, not after the fact, he didn't think——he did not think he did anything wrong, and that's what he said to Mr. Singh. And Mr. Singh objected to that. It goes to the weight of this, and not admissibility.
MS. SASSOON: Are you trying to offer this under 803(3) or another rule?
MR. COHEN: His statement comes in as 803(3), the defendant's state of mind. How could it not?
MS. SASSOON: It requires that it be a statement of the declarant's then-existing state of mind, such as motive, intent, or plan, or emotional, sensory, or physical condition, but not including a statement of memory or belief to prove the fact remembered or believed. And——
JUDGE KAPLAN: Sustained.
(In open court)
JUDGE KAPLAN: Objection sustained.
BY MR. COHEN: