2.Defense Rests, Rebuttal Discussion, and Acquittal Motion
71 lines(Witness excused)
JUDGE KAPLAN: Any additional evidence from the defendant?
MR. COHEN: No, your Honor. The defense rests.
JUDGE KAPLAN: Is there to be a rebuttal case? I am reserving your motion for the time being.
MS. SASSOON: Your Honor, may we take an early lunch break so we can confer -- even just a five-minute break or the lunch break, whichever your Honor prefers.
JUDGE KAPLAN: It depends how fast you want to eat.
MS. SASSOON: Just a five-minute break.
JUDGE KAPLAN: No one needs to bolt their food. Five minutes.
(Jury not present)
(Recess)
JUDGE KAPLAN: What's the story?
MR. ROOS: We are not planning on calling any witnesses and there is one outstanding item, which is Government Exhibit 2534, which there was a foundation objection to yesterday because the witness did not recognize the document. Your Honor admitted it subject to connection. We have been chatting with defense counsel. It sounds like they have some concerns. We can authenticate the document by calling that fellow from Google back up from Texas, but I prefer not to.
JUDGE KAPLAN: That really went over big.
MR. COHEN: Your Honor, if I might cut through this, we don't want the fellow from Texas to come. The issue we have is that the document on its face is, to us, appears to be a draft.
JUDGE KAPLAN: I, of course, don't have it in front of me, so I don't know what we are talking about. I lost total recall at about number 1800.
MR. COHEN: Sorry, your Honor. If you look at the second to last page of the document -- they are not numbered -- it says: FTX token raise, note, 3/21/2019. This is still prospective and just a draft of what we might do. That date is before FTX was even launched. We don't have an issue with it being admitted if it is not being presented as a final version and something that was in effect after FTX was launched, but we don't think that the document supports it and there was no testimony to that effect. That's our concern, your Honor.
MR. ROOS: On this, Judge, the witness was crossed about a different page relating to preventing clawbacks. If it would solve the issue, we would just redact the page that says draft on it.
MR. COHEN: With respect --
JUDGE KAPLAN: I don't think that solves Mr. Cohen's problem. The part of this that matters to the government. Please educate me.
MS. SASSOON: Doesn't have page numbers, your Honor --
JUDGE KAPLAN: I can count.
MS. SASSOON: -- several pages in there is a page that has a heading: How is FTX solving these issues? And it says: Preventing clawbacks. The witness was questioned about that and questioned about the three items beneath that describing how the liquidation model works. We have not --
JUDGE KAPLAN: Don't you have this already?
MS. SASSOON: This was offered subject to connection.
JUDGE KAPLAN: Yes, I understand that.
MS. SASSOON: We don't think there is a basis to strike the testimony about this document which was shown to the jury, and we are not and have not made a representation that this deck went to a particular person or was a final draft. He was questioned about his understanding of those terms and whether he disputed that FTX was marketed that way. We think, given that this came off his Google Drive and that a Google witness could authenticate it, and that doesn't seem to be the defense's issue, there is no reason not to admit it when the government is not misrepresenting how we are using it, and where we don't redact that page they are free to say this was a draft.
JUDGE KAPLAN: This was all about the distinction between preventing clawbacks and significantly reducing the likelihood of clawbacks, yes?
MS. SASSOON: Also about the three tiers of the liquidation system which the defendant on the stand said that, in substance, he agreed with how it was described here, but perhaps he would have described the insurance fund in slightly different words.
JUDGE KAPLAN: So what.
MS. SASSOON: I see no basis to strike that testimony, your Honor, which would be a consequence of not admitting this document.
JUDGE KAPLAN: Except you have not authenticated it.
MS. SASSOON: The authenticity issue doesn't seem to be the objection from the defense. They seem to be prepared to stipulate that this came off his Google Drive. To the extent that this is at all relevant to closings --
JUDGE KAPLAN: It came off his Google Drive and what? And you have got metadata that would say that? Is that the point?
MS. SASSOON: A Google witness could say, this is an authentic document. It was taken off of the defendant's Google Drive.
JUDGE KAPLAN: Mr. Cohen, presumably, rather than bring the guy back from Texas --
MR. COHEN: No, we are not doing that.
JUDGE KAPLAN: You would be prepared to stipulate that, if called, the guy who came from Texas would have testified that if this came off the metadata it indicates it came off his Google Drive, no?
MR. COHEN: Yes.
JUDGE KAPLAN: Solves the problem.
MR. COHEN: It does, your Honor.
JUDGE KAPLAN: Problem solved?
MS. SASSOON: Yes. Logistically, the government plans to offer this one document in its rebuttal case.
JUDGE KAPLAN: It's in, subject to connection. What we are talking about is a hypothetical motion to strike it, which is now moot because you have a stipulation.
MR. COHEN: As your Honor has laid out.
JUDGE KAPLAN: Yes.
MS. SASSOON: We are all set on this, it seems.
JUDGE KAPLAN: The stipulation solves the problem. It's in evidence. It has been connected. So there is no rebuttal case.
JUDGE KAPLAN: Let's talk schedule for a minute since the jury is out there enjoying their five minutes. We will have the charge ready for you to look at whenever John Hammel gets back with the copies. The question is whether I send the jury home now or whether I hold them here for several hours, or however long it takes, in the hope of starting somebody's closing toward the end of the day. I'm disinclined to do that, but I'll be happy to listen to counsel.
MR. ROOS: I think it's good news that we are done, and we should do the charge conference and start tomorrow morning.
JUDGE KAPLAN: Any different view, Mr. Cohen?
MR. COHEN: We defer to the Court.
JUDGE KAPLAN: Bring in the jury. I'll deal with the motion once the jury is out of the room, and then we will get the charge down.
(Jury present)
JUDGE KAPLAN: Defendant and the jurors all are present, as they have been throughout. Does the government have any rebuttal evidence to present?
JUDGE KAPLAN: Ladies and gentlemen, that concludes the presentation of evidence in this case. Here is what happens now. I will be meeting this afternoon with the lawyers concerning the legal instructions that I am going to give you. I am going to send you home for the rest of the day and see you back at 9:30. But don't get up yet because I have to have one further word with counsel at the sidebar about how we are going to proceed from here.
(Continued on next page)
(At sidebar)
JUDGE KAPLAN: I'm disinclined, if I think about it, to bring all these alternates in tomorrow only to send them home at 9:30. I think what I will do, unless somebody has a better idea, is to bring in alternates 1 and 2 and not discharge 3, 5, and 6. They are going to be subject to call if need be. Does that work for anybody?
MS. SASSOON: Don't they need to hear the summations, your Honor?
JUDGE KAPLAN: Of course they do. Thank you. That takes care of that.
(Continued on next page)
(In open court)
JUDGE KAPLAN: Folks, we will see you all tomorrow morning at 9:30, and we will start right out with closing arguments. Folks, you have all earned your buttons.
(Jury not present)
JUDGE KAPLAN: If there are any motions, I will hear them now.
MR. COHEN: Your Honor, we renew our motion for a judgment of acquittal.
JUDGE KAPLAN: Denied. One of my law clerks -- you have the charge yet? No. The copying machine is running furiously. As soon as the copies are ready, we will bring them down. Charge conference, 1:45.
(Luncheon recess)
AFTERNOON SESSION 2:00 p.m.