Moira Penza (6:55)

Well, I think the prosecution is being very methodical. They are trying to elicit testimony that is really going to meet the elements of the crimes. And so where they have salacious details, I think they are keeping it narrowly focused on what they actually are going to need to prove. And I think that's the right approach for the government. I also think the defense is doing a good job as well. I think that they have an uphill battle because there is so much evidence here. We have pictures, we have a lot of corroboration, we have video. But what's standing out to me from the defense side is that they're really not defending the indefensible. So they're taking responsibility for things that they know they have to take responsibility for it, like the fact that the defendant engaged in domestic violence. It's on tape. So by standing up and taking responsibility for that on the defendant's behalf, that's preserving their credibility with the jury so that they can actually make other arguments about the law. I also thought the defense was smart to not be overly aggressive with Ms. Ventura. We've seen defense attorneys make that mistake stake in other sex crimes prosecutions. And I think what they were trying to do is just allow the messages to speak for themselves. So regardless of what Ms. Ventura may have said on any occasion or what the text messages say, to the extent the jury is going to be persuaded by those messages, that's enough. They don't need to be standing up there attacking Ms. Ventura, who's eight and a half months pregnant and was clearly the victim of crimes. Even if, according to the defense, not sex Trafficking or racketeering.

Brian Buckmire (8:54)

Let's talk about the part of the case you think is the most clear cut, the charges of sex trafficking. Why do you think that?

Moira Penza (9:02)

Well, I'm a former prosecutor and I've prosecuted very similar crimes back when I was at the Eastern District of New York. And what we've seen is that the government has really laid out a strong case of the elements of sex trafficking. I think we've also seen them lay out a strong case for the RICO conspiracy charges as well. But talking about the sex trafficking first, the most important things for the government to prove there is that there was commercial sex that was compelled through force, fraud or coercion. And so in this case, we have very clear commercial sex. So commercial sex is. Anytime there is sex exchanged for a thing of value in a lot of sex trafficking prosecutions we've seen recently against high profile individuals, we're not talking about an actual exchange of sex for money, as one might traditionally think about sex trafficking. For example, in the Harvey Weinstein cases, you're talking about an exchange of sex for a position in the entertainment industry. That's really what you're thinking about in terms of thing of value here. This is a somewhat unique case in terms of recent sex trafficking prosecutions in that we actually have participants in the sex act, we have the escorts who actually are being paid. Then you need the force fraud or coercion. And there I think the government's laid out a very clear case as well. We have incident after incident of physical violence against Ms. Ventura surrounding these freak offs. We also have strong evidence of coercion. So where you have an individual who is in a dynamic with an abuser, where that abuser really has control over every aspect of her life, so her career, all the way down to what color she's painting her fingernails, that's going to take away an individual's agency. And so in that situation, it is much easier for somebody who intends to hurt somebody to do so. We also have the government introducing evidence of the threats against Ms. Ventura, that the tapes of the freak offs would be used if she were to leave him. And so that's another really strong piece of evidence that we see as to the sex trafficking elements.

Brian Buckmire (11:41)

Now we've been getting a lot of questions from listeners about the RICO charges Sean Combs is facing. When people hear rico, they might think of a criminal organization like a mob or a gang. I've also heard people talk about that the RICO statute being applied here is overly broad. So can you help our listeners understand why the Government is using RICO laws to prosecute Sean Combs.

Moira Penza (12:04)

Absolutely. So racketeering laws do prosecute criminal organizations. That's absolutely true. And that's what the government is saying here. The government is saying that Sean Combs was able to operate the way that he did because he was, in fact, part of a criminal organization, that there were other individuals who helped facilitate the crimes that he is charged with. And that expansion of the racketeering laws to prosecute crimes other than mob cases has been going on for a long time. So in the Eastern District of New York, you had the prosecution of soccer corruption under the. The racketeering laws. We've seen various opioid cases that are brought under the racketeering laws. And in fact, I used the racketeering statute when I prosecuted Keith Ranieri, who was the head of the nexivm, what's colloquially called a sex cult. But there, my argument was, in fact, that Keith Ranieri was running a criminal organization. He wasn't a cult leader. He was a crime boss. And that's really what you hear the government doing in this case as well. And that's why we're getting testimony from assistance, other people in his entourage, other people who were employed by him, who saw what was happening and helped facilitate it, including by covering up his crimes.

Brian Buckmire (13:39)

So I'm actually curious about this, because I've tried to have this conversation with my friends, and they're always saying, Sean Combs made music, he produced music, he had a whole fashion line, alcohol, everything. His organization isn't criminal. He's a business person. But then he did freak off. So, like, only a percentage or a small part of it could be considered criminal. So how are you calling what he's doing a criminal enterprise? Can you make sense of that?

Moira Penza (14:08)

Yes. So when the government is charging racketeering, they can say that an organization is entirely criminal, or they can say that there is an association of individuals who together are committing crimes. And sometimes an organization or the way that somebody is operating their businesses can help facilitate crimes. So, again, similarly, in the case that I prosecuted, even though we talk about it as the nexivm case, I did not charge NEXIVM as a criminal organization. I charged Keith Ranieri and his associates together as a criminal organization who were using nexivm classes, the individuals who were taking NXIVM courses to commit these crimes, sometimes as participants in the crime, sometimes as victims. And so just because there can be legitimate purposes to an enterprise. Same thing with the FIFA case. Right. There can be legitimate purposes to an enterprise, but where an individual is working with others to commit crimes, even if they are also doing things that are legitimate, they that can still be racketeering.

Brian Buckmire (15:30)

Last thing on this whole RICO allegation in charge, two part question. What does the government need to prove in order to make out their case against Combs that he's guilty of RICO charges? And from what you've seen so far, are they doing that?

Moira Penza (15:44)

So they've charged Sean Combs with racketeering conspiracy. So they have to show that he agreed with at least one other person to engage in racketeering. Then to actually figure that out, what you're looking for is two predicate acts of racketeering that other people were involved in facilitating. So, you know, there can be additional nuances to that as well. But I think the government's going to want to make it easy for the jury and say, here are all these instances where the crime that Mr. Combs committed required other people's involvement. So that's, I think, the way that the government is going to lay it out. And in terms of whether they're there yet, I think they're getting there. I think we've heard testimony that showed the involvement of other individuals. We also had testimony from one of Mr. Combs assistants, and he was going to take a fifth. So he was not going to testify, saying that he would be incriminating him himself if he took the stand. And so he was actually granted immunity so that he would in fact testify. And so having individuals who the government is actually saying were part of this conspiracy testify about what they saw, what they did, that's going to be powerful evidence. And we still have weeks of trial to go.

Brian Buckmire (17:17)

It's interesting that you bring up granting an individual immunity because George Kaplan, one of Sean Combs personal assistants, we saw him on Wednesday take the 5th, then be granted immunity and then testify. So what goes into an AUSA's mindset as to we need to give this person immunity in order to testify? And how do you get to that conclusion and what do you do with them?

Moira Penza (17:41)

Well, I think this is one of the toughest parts of the job as a prosecutor is really exercising that prosecutorial discretion. So just because somebody did engage in criminal conduct, just because somebody may have been a lower ranking member of a criminal conspiracy, you may choose not to charge them with crimes. Right. In other situations, you might actually charge somebody with a crime and then they cooperate with the government and testify in exchange for the government eventually seeking leniency on their behalf in other situations. And I can't speak to the exact specifics of how the government made the decision that they made. But in other situations, what you're going to say is this isn't necessarily somebody who I think should be charged for a crime, or there may be other reasons why you don't want to charge them with a crime. But they themselves might say, or through their lawyers, I'm not going to testify because what you want me to say is going to incriminate me. And so in that situation, the government makes a calculus that you don't want to prosecute the person, but it is also worth having them testify. And you always want to be doing that when it is helping you get the person who is significantly more culpable. And here there's clearly no dispute that the defendant, Mr. Combs, was the head of this organization. So the government is going to make certain decisions to make sure that they can hold him responsible.

Brian Buckmire (19:25)

So sometimes people ask me in just a layperson's term, and so I'm gonna ask you in this term.

Moira Penza (19:29)

Sure.

Brian Buckmire (19:30)

Is it sometimes that you're just going after the big fish and you let the little fish go?

Moira Penza (19:34)

I think that's totally fair. And I think that's, that's the way that the system should work. I think that prosecutorial discretion is a very important part of the system. And certainly there can be cases where for a variety of reasons, maybe because somebody was such a victim, him or herself, that you choose not to prosecute them.

Brian Buckmire (20:01)

Just ahead, former prosecutor Moira Rapenza has faced some of Combs defense team in court before and she says they're making some new moves in the Combs trial.

Moira Penza (20:14)

Oh my God. Is this your home? This is the.

Brian Buckmire (20:16)

This is the humble abode. Oh my God.

Moira Penza (20:18)

It's so humble.

Brian Buckmire (20:20)

FX presents Adults.

Moira Penza (20:22)

You don't know your Social Security number?

Brian Buckmire (20:23)

No, I do.

Moira Penza (20:24)

It's just my mom like knows the whole thing.

Brian Buckmire (20:26)

A new comedy about 20 somethings achieving 0 anythings.

Unknown (20:30)

What is worst the that happens I go broke. I can't pay my loans. I start an only fans. But only you guys subscribe.

Moira Penza (20:36)

You can't do only.

Unknown (20:36)

Yeah, you wouldn't make it on there. So sorry.

Brian Buckmire (20:38)

FX's Adults premieres May 28th on FX. All episodes streaming on Hulu.

Unknown (20:47)

Get tickets now.

Moira Penza (20:48)

Look, I got a dog. Ow.

Unknown (20:50)

To the movie event of the summer.

Moira Penza (20:52)

You sure that's a dog? Yeah. Rough.

Unknown (20:58)

This Memorial Day the summer starts with.

Moira Penza (21:01)

Stitch, adorable little psychopath.

Unknown (21:07)

Disney's Lilo and Stitch rated PG parental guidance suggested now playing only in theaters.

Moira Penza (21:14)

This is the next phase in my.

Unknown (21:16)

Therapeutic work, Nicole Kidman returns for The Hulu Original Nine Perfect Strangers Season 2.

Moira Penza (21:21)

Breathe in, breathe out. This is safe.

Unknown (21:25)

We take you back to a core trauma.

Brian Buckmire (21:30)

She is manipulating us. Breathe in.

Unknown (21:34)

Breathe out.

Moira Penza (21:34)

While you're resisting.

Brian Buckmire (21:36)

Is it too late to get a refund?

Unknown (21:38)

The all new season of nine Perfect Strangers is now streaming on Hulu and Hulu and Disney. New episodes Wednesdays.

Brian Buckmire (21:50)

And I'm back with Moira Penza, a former federal prosecutor who's brought charges similar to what Sean Combs is facing. Perhaps her most high profile case was the prosecution of Keith Raniere, the former NXIVM leader who was convicted of crimes including racketeering and sex trafficking in 2019. I asked Moira if she sees any parallels between the two cases.

Moira Penza (22:14)

So I think that there are a lot of similarities in the cases in that you have an individual who within his community is very high powered. Now, of course, far more people know Sean Combs than knew Keith Ranieri at the time that I prosecuted him. But they were both men who have significant influences in the spheres in which they operated. And the way that I charged the nexivm case was recognizing that the crimes that Keith Ranieri committed, he was able to commit over such a long period of time and with so many victims because he did have the involvement of other people and because he was part of this organization where a lot of individuals were benefiting financially, emotionally from being with him, they aggrandized him and were willing to participate in the victimization of other people on his behalf. In the naxivm case for the sex trafficking piece, there were a number of different ways in which we proved the elements, but basically what we were saying was that women were collateralized. So there were women who thought they were joining a female empowerment group, and as part of joining that, they were forced to hand over nude pictures, damning information about themselves, either true or false. Once they had handed over that information, only later, once that blackmail material was already obtained, did they learn that part of this organization was requiring them to have sex with Keith Ranieri. So that was the coercion that you see in terms of the sex trafficking charges that we have there. And then in terms of the racketeering charges, again, we had other individuals who were helping groom women and who were involved in other crimes for Keith Ranieri, including covering up different pieces of it. In terms of showing that the victims were under the coercive control of the defendant. Again, there were a lot of similarities. So the women in my case were controlled in every aspect of their life, and their whole lives had really become this person, this organization, their careers. They were really separated from people who could really serve as sounding boards for what was going on. One difference that we do have is the level of alleged physical violence in the Sean Combs case. In the naxivm case, there was a little bit of that. And, of course, the sex crimes themselves are inherently violent, but this sort of brutal physical violence is something that we didn't have in my case, but that you do have in this case. And that, I think, is very powerful evidence for the prosecutors.

Brian Buckmire (25:46)

You've got a little bit of inside baseball here because you've gone up against Mark Igno and Tenny Garagos, and now the SDNY is going up against who I would describe as the lead defense attorneys in Sean Combs. So what can we expect of their style? What can we expect of the way they're gonna cross examine? What can we expect of the closing arguments that the defense is likely gonna bring up, since you know, their style of defense?

Moira Penza (26:12)

Mark and Tenney were the team in the NAXIVM case, so I know them well. Ms. Garagos did not have as much of a standup role during the naxivm trial. I certainly think she's a talented lawyer, and I do think, optically, it was a good decision on the part of the defense team to have a young woman who was a contemporary of the prosecution team standing up and showing that she was on the defendant's side and advocating for the defendant. So I think, to Mark and Tenney's credit, I don't think they're necessarily following the same playbook that I saw in their defense of Keith Ranieri. And I think that reflects probably their own evolution in how to defend these cases. But also, I think likely, I think Mr. Combs is maybe more willing to allow them to take certain approaches, like accepting responsibility for being a bad boyfriend for domestic abuse. So I think right now, where I think we're going to see closing arguments go is really a bookend of what we saw in opening. I think we're going to see the defense say, we've heard a lot of stuff you might not like Jury, but it's not the crimes that the government has charged. And I think in that respect, it will be a little bit more matter of fact than we might have seen in the NXIVM case, where I think Mark made more of an effort to try and paint Keith Ranieri as actually a good man with good intentions, as opposed to here, where I think they realize it will be a more effective strategy to admit that Mr. Combs is a deeply flawed individual and just try and get the jury to stay focused on the narrow issue of are these crimes actually proven?

Brian Buckmire (28:34)

In your case against Keith Raniere, you had an expert forensic psychologist by the name of Don Hughes who also testified in Sean Combs case. How did you use her expertise to help in that case, and how do you see her expertise to being used to further the government's case against Sean Combs?

Moira Penza (28:55)

So I think in both cases, Dr. Hughes's testimony is being used very similarly. I think the NXIVM case is actually the first case in which Dr. Hughes testified, and she's now testified quite a bit on behalf of the government and on behalf of victims of abuse and sex trafficking. The reality is that victims of sex crimes, victims of domestic abuse, often behave in ways that may seem counterintuitive to a layperson, to a jury. We often see victims writing text messages, talking about how much they love their abuser. We see them going back, having consensual sex after they've been raped. And that sort of behavior can sometimes, for somebody who is not familiar with the psychology of it, seem like it goes against the credibility of the victim. In reality, those behaviors are very common. I've seen it in every sex crimes case that I was involved in. And, you know, now, as somebody who comments on these sorts of cases, it's something that you see in basically every case. And what Dr. Hughes does is not talking about the specifics of the case at all can explain this sort of victim behavior and the psychology of it and why we can see that and put it into terms that are understandable for a jury. And then the jury can apply what They've heard from Dr. Hughes to what they've heard the victim say, and then it may be a lot more understandable. So, for example, Dr. Hughes talks about the fact that there's often love in these long term relationships where there's abuse, but there's these trauma bonds that keep people coming back. Even in situations where a layperson who, you know, thankfully has not experienced this sort of behavior thinks, why didn't she just leave? The door was open, she had family, she could have gotten help. And Dr. Hughes can explain how difficult that can be in a situation where you've been abused repeatedly, especially where you have an individual who is extremely famous, who has enormous power over your career. And that can be really helpful for the jury in answering some questions that they might have.

Brian Buckmire (31:45)

So the interesting thing that I found with this case. What also happened in Keith Ranieri's case was that the defense had the argument of some of this was consensual or all of this was consensual as a way of defending their case. What kind of difficulties does that create for the government in terms of trying to prove their case that either consent didn't happen or it doesn't matter in the context of these allegations?

Moira Penza (32:10)

I don't think that consent is a real challenge in this case because of the level of physical violence that you have and because of the coercive elements, the threats of blackmail. It's something that is a challenge for the government, but certainly something that can be overcome. And I think it's just something for the government to address head on. But this isn't a he said, she said case. It's really going to come down to the legal standard. I think the government is going to be able to show how, regardless of what Ms. Ventura may have said on any occasion or what the text messages say, that the elements of sex trafficking are met. That's, that's what we're going to hear the government say about these alleged crimes.

Brian Buckmire (33:04)

How do you prepare alleged victims to testify in court? Considering all of what's gonna happen in the direct examination, showing up to court, and especially the cross examination, I think.

Moira Penza (33:15)

That'S one of the most challenging aspects of being a prosecutor because you are really asking these alleged victims to relive some of the most traumatizing events of their life. And what I like to do is remind our victims that, or back when I was a prosecutor, that this individual doesn't have power over you anymore. It's very different to see them in a courtroom when they've been charged with a crime and you're in the witness stand versus when you may have last seen them and all they are is this super high powered individual and then always reminding people that they are not here to be an advocate for the government. They're just there to tell the truth. I also like to remind victims that there's a lot of corroboration that we can't tell them about. So there's going to be a lot of other evidence that helps support what they're saying. And we can't tell them the specifics of that, but we can tell them that they're not out there alone. And then in terms of cross examination, just again, tell victims to tell the truth, to answer questions posed by the defense attorney the same way they're answering questions by the prosecutor. And we talk about what to expect we would talk about. You're going to see text messages saying that you loved him and just try and take away as much of the surprise element as you can.

Brian Buckmire (34:47)

Moira, thank you so much.

Moira Penza (34:50)

No problem. Thanks for having me.

Brian Buckmire (34:59)

Court's taking somewhat of a longer break from Memorial Day weekend. They're off today on Friday and Resume on Tuesday, May 27th. We'll be back in your feed later that day with the latest from ABC News Live's Burden of Proof. If you have any questions about the case you'd like me to answer, call and leave a voicemail at 9. Thanks to everyone who's called. We love hearing your questions and we'll answer as many as we can on future episodes. The Case Against Diddy is a production of ABC Audio. I'm Brian Buckmire. Our podcast production team includes Vika Aronson, Nancy Rosenbaum, Audrey Mastek, Amira Williams, Tracy Samuelson and Sasha Aslanian. Special thanks to Stephanie Maurice, Caitlin Morris, Liz Alessi, Katie Dendas and the team at ABC News Live. Michelle Margulis is our operations manager. Josh Cohan is ABC Audio's director of podcast programming. Laura Mayer is our executive producer.

Unknown (36:11)

Like your favorite travel guide, T Mobile's network knows all the spots because T Mobile helps keep you connected from the heart of Portland to right where you are on America's largest 5G network. Switch now. Keep your phone and T Mobile will pay it off up to $800 per line via prepaid card. Visit your local T Mobile location or learn more@t mobile.com keepandswitch up to 4 lines of your virtual prepaid card. Allow 15 days qualifying unlock device, credit service report in 90 plus days device and eligible carrier and timely redemption. Required card is no cash access and expires in six months.

Unknown (36:44)

For the team ready to conquer the grandest stage, immortality awaits moments of sweat and sacrifice towards the composition of champions. An unforgettable journey is nearing its finale.

Brian Buckmire (37:04)

Four more wins to take home the trophy.

Unknown (37:06)

The NBA finals, presented by YouTube TV, begin June 5 on ABC.