2.Limiting Instruction on China Evidence
32 linesMR. COHEN: Objection.
MS. SASSOON: Your Honor, may we have a sidebar?
JUDGE KAPLAN: Yeah, I think so.
(Continued on next page)
(At sidebar)
MS. SASSOON: Your Honor, this witness has established that she engaged in criminal activity with the defendant, that they spoke in coded terms, that he told her to be careful about what you put in writing. She has now described the various lawful efforts or quasi lawful efforts to unfreeze the accounts, the suggestion to do things Ma's way, which remained coded and unexplained, the reaction of an employee -- whose father was a police officer -- being very upset.
JUDGE KAPLAN: Whose father was a police officer?
MS. SASSOON: Handi Yang, who is the one who the defendant told her to shut the fuck up, then the defendant directing her to make these payments, and I think it's pretty established now that she was a trusted associate of the defendant. This witness also has this conduct covered in her cooperation plea agreement in the immunity paragraph of her plea agreement where she accepts responsibility for engaging in what she believed was a bribe to the Chinese. I think there is ample foundation for her to explain her understanding of her own conduct, and on cross-examination she can be questioned about the limits of what she actually knows.
MR. COHEN: Your Honor, counsel has just laid out how they plan to argue these inferences from the evidentiary record that they have created, but it doesn't permit this witness to be making the kinds of speculative conclusions that have now been asked for multiple times during this testimony.
JUDGE KAPLAN: Well, we are dealing with an objection to a specific question. Whatever came before pretty much came or entirely came without objection, as I remember it, but of course the record --
MR. COHEN: There have been some objections.
JUDGE KAPLAN: The question now is what conclusion did she draw about who likely was the recipient.
MS. SASSOON: There are two more documents I intend to show her. One, a document she sent to the defendant where she referred to this as $150 million for the thing, and she is going to explain why she called it the thing, because she thought it was criminal, and another message where she is on a chat with Sam Trabucco and the defendant where they are joking about Handi's father putting them in jail.
JUDGE KAPLAN: The objection to the pending question about what conclusion did she reach about who was likely recipient is sustained. I am making no ruling as to what comes after it.
MS. SASSOON: Your Honor, do you view a question, what was your understanding of the payment, or do you see those as the same kind?
JUDGE KAPLAN: I think all things considered, it's just sustained.
MS. SASSOON: One other thing. Given that this is being admitted under 404(b), if the defense would like a limiting instruction, I just wanted to flag that.
MR. COHEN: Yes.
JUDGE KAPLAN: When you say it --
MS. SASSOON: The possible bribe to the Chinese government. We moved on this in limine.
JUDGE KAPLAN: I remember, but you've all been so quiet. The instruction you want in substance is that he is not charged with any crime consisting in substance of payment of a bribe to anyone in China and that this is offered for the purpose of --
MS. SASSOON: Showing a relationship of trust between this witness and the defendant and evidence of possible motive.
JUDGE KAPLAN: Any objection to that instruction?
MR. COHEN: No, your Honor.
MS. SASSOON: And with respect to their weighing of the evidence about her testimony about coded language.
MR. COHEN: That I don't think we will need a 404(b) instruction.
JUDGE KAPLAN: I think that's right.
(Continued on next page)
(In open court)
JUDGE KAPLAN: Members of the jury, it's appropriate to give you an instruction with respect to the evidence that you have just been hearing about the unfreezing of the money in China and some that you are about to hear. The defendant is not charged in this case with any crime relating to what I'll loosely refer to as a possible bribe to somebody in China. That's just not on the list of charges, and you may not consider it for that purpose. The evidence is offered for more limited purposes. It is offered to demonstrate the relationship of trust and confidence between the defendant and Ms. Ellison. It is offered on the issue of motive. And I think I've got it all, but if I missed something, anything else counsel want me to mention as to proper purposes?
MS. SASSOON: No, your Honor.
JUDGE KAPLAN: Hearing nothing else, we will leave it right there. Those are the instructions.