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- [00:02]
WhatsApp Representative
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- [00:34]
Brian Buchmire
This is Bad Rap. The case against Diddy. I'm Brian Buchmire, an ABC News legal contributor and practicing attorney. This episode, quote, I'm not a sex robot. At the start of week five of USA v. Sean Combs, we heard the defendant's voice and testimony. The prosecution played recordings of voice memos and phone calls between Sean Combs and a former girlfriend who's testifying under the pseudonym Jane. Combs is facing federal charges of racketeering, conspiracy, sex trafficking, and transportation to engage in prostitution. He's pled not guilty to all charges. The prosecution has shown the jury a selection of text messages in which Jane told Combs about the toll the couple's hotel nights were taking on her. These were alleged sex performances with male sex workers similar to the freak offs Cassie Ventura described. Once Jane sent Combs a text message saying, in part, I'm not a sex robot. Their argument over text included a voice note from Combs played for the jury on Friday.
- [01:44]
Sean Combs
Hey, I really don't know what's going on with you, but I just wanted to just give you a heads up that I'm about to really disappear on you. You feel me? I'm not gonna be playing these games with you at all.
- [01:54]
Brian Buchmire
The message went on.
- [01:56]
Sean Combs
I was trying not to leave this message, but you have left me no choice. So either you, you, you, you, you going the direction of, like, moving on like that, or you like, just like, have me just keep moving. Ain't no threat. I'm just being clear. I can't with you every time you get upset.
- [02:15]
Brian Buchmire
Jane responded over text. You've been making things completely transactional and you've been threatening me any chance you get. In a call recorded three days after Cassie files her lawsuit, Combs can be heard telling Jane, this is when I need you to be there for me. Who's there for me? Jane is heard responding. I'm feeling so manipulated. What do I do with that feeling? Combs can be heard saying he can't talk on the phone or text. And then he says, you know, you ain't got to worry about nothing else. You feel me? Jane testified she believed Combs was referring to the $10,000 a month she said he gives her that she uses to pay her rent. Jane also testified how she felt reading Cassie's lawsuit, how she said it resembled her own experience with Combs. She texted him, I feel like I'm reading my own sexual trauma. Like Cassie, Jane's testimony describes sex for hours, even days, with male escorts in hotels and copious drug usage to endure it. At one point, she texted Combs, I'm not a porn star. I'm not an animal. I need a break. I don't want to do anything. I've hit a wall. Combs responded, so we're breaking up. Jane also told jurors that Combs threatened to withhold his financial support if she refused to participate in the hotel nights. She sobbed through much of her testimony. We expect Jane to be on the stand for most of the week. And based on opening statements, the cross examination will likely argue that the relationship between Combs and Jane was a jealous one, but consensual. We had some court action over the weekend, too. On Saturday, Combs legal team requested their second mistrial. In a letter to Judd Subramanian, the defense said the prosecution presented demonstrably false evidence related to the allegation that Combs dangled Brianna Bungolen off a 17th floor balcony in Los Angeles in 2016. You'll recall that during the cross examination of Bungolen, the defense introduced evidence to suggest that Combs was in New York, not Los Angeles, during the alleged balcony incident. After seeing that evidence, Bongolin maintained she was dangled over the balcony but wasn't sure of the date. The defense is now accusing Bongolen of lying, writing in their mistrial requests, the government knew or should have known this testimony was perjured and that Ms. Bongolin could not possibly have been injured by Mr. Combs on a Los Angeles balcony in the early morning hours of September 26th or even the day before that. Judge Subramanian said he would give the government an opportunity to respond and he would take up the motion on Tuesday. In the meantime, let's answer some of your questions.
- [05:15]
Courtney
Hi Brian, it's Courtney in North Carolina. Could you explain what jury nullification is? And also, is it something that is legal for juries to do? Is it something they know about? And is it something that the prosecution or defense can encourage or discourage explicitly? Thanks so much and have a great day.
- [05:36]
Brian Buchmire
Courtney from North Carolina, thank you so much for this question. I love these probing legal questions. So let me see if I can Answer each one of those questions one by one. So jury nullification is this concept in law where the jury typically comes back with a not guilty even though the prosecution has proven their case beyond a reasonable doubt. It's often done when the jury disagrees with the law or the sentence or how the prosecution has handled the case. Historically speaking, if I remember my American law well enough, think prohibition, evasion of the draft during the Vietnam War. Think about times where someone might have been guilty of a crime, but because of public sentiment, they don't believe that law is just. And so even though the elements of that crime has occurred, the the jury will say, no, not guilty. Now, to answer your other questions, is it something that's legal for juries to do? I guess the answer is technically, because usually if this happens, we don't go and poll the jury and say, hey, was this jury nullification? But you can kind of read the tea leaves to see that. Now your next question. No, it is not something the jury knows about, because what is not legal is informing the jury that they have this power to do so. The neither the defense nor the prosecution can inform them that jury nullification is a possibility, but it is a thing that can happen. And you could kind of sort of maybe hint at it. As a defense attorney, you can kind of appeal to the morality of the law, but you can't outward say you have this power. Thanks for the question, Courtney. All right, next question.
- [07:10]
Kelsey
Hey, Brian, my name is kelsey. I'm from D.C. i was calling to ask what happens to Diddy's assets if he's convicted, and what happens to his assets if he's not convicted? Love the podcast. Thank you.
- [07:24]
Brian Buchmire
Kelsey from D.C. thank you for that question. So if he's not convicted, then there wouldn't be an issue of his assets going anywhere. But if you look at the indictment, there is a paragraph that talks about forfeiture. Basically, if there are any proceeds that are connected to the criminal activity, either directly or indirectly, that would be up for forfeiture.
- [07:46]
Cammie
And.
- [07:46]
Brian Buchmire
And when we talk about a criminal enterprise, that can be pretty vast. When I explain it to my clients, I explain it in simpler terms of, let's say you robbed a bodega. And, Kelsey, I know you would never. But we're gonna use this as an example. You rob a bodega, and you have $1,000, right? Well, if you take 500 of those dollars and you buy yourself some nice shoes and the feds come and arrest you, they would take the $500 you have leftover, because that would be direct proceeds from the robbery, but they would also take away your shoes because your shoes are a of the money that you got from the illegal activity. Now, that's an easy example. Imagine applying that to Sean Combs, who's allegedly in a criminal enterprise. And if convicted, the money that he brought in, the resources that he used, the way that it came out of revolt one of his companies, the way it came out of Combs enterprise, that money could be so entangled within his business, it could amount to a lot of money. While Sean Combs has said he is not guilty and the case is still going forward, his team has actually hired a consultant, a former federal prosecutor who's an expert on federal asset forfeiture law after spending 30 years in the Department of Justice specializing in asset forfeiture and money laundering. So he's got someone at least in his corner who understands this issue if it does come up. All right, next question.
- [09:09]
Kelsey
Hi, my name is Brianna. I'm from North Carolina. And my question is regarding the witnesses that are getting immunity. Are the jury members aware of who is being granted immunity and who is not, and how can that affect their perceptions throughout the trial?
- [09:24]
Brian Buchmire
Thank you, Brianna from North Carolina. Thanks for the question. The answer is yes. The jurors do know who is granted immunity, in large part because it comes up in the government's direct examination. Oftentimes, witnesses are asked, are you here under a subpoena? They'll say, yes. Do you not want to be here? I don't want to be here, but I'm compelled to be here. And a line of questioning as well for those who receive immunity is, are you receiving immunity? Yes. Do you understand what that means? Yes. Do you understand that you get immunity so long as you answer these questions truthfully and you will not be prosecuted for any of the alleged crimes that you talk about? Yes. The defense will get up and maybe cross examine them as well and say, well, you're only doing this to kind of save your own self from being charged. And why are we to believe you if this is only for your own protection? And that might be harped on in closing arguments, but that's how we're seeing it play out in this case and how you typically see it in cases where someone is granted immunity at the time of recording. We know so far that four people have testified with immunity, Eddie Garcia, Brianna Bungolen, and two former assistants of Sean Combs. So we know that if they testify truthfully, the government has promised not to prosecute them for any of the crimes they've admitted to on the stand. After the break, mistrial requests and Bibles in court. Yay. Or nay?
- [10:57]
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- [11:05]
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Brian Buchmire
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- [11:26]
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- [11:48]
Brian Buchmire
Payment of $45 for 3 month plan equivalent to $15 per month required intro rate first 3 months only, then full price plan options available, taxes and fees extra. See full terms@mintmobile.com the stakes do not get any higher. Yesterday beat me Cause I ain't getting younger but I'm getting better Got no time to waste that's another man's treasure. They say every dog has his day. The two very best in the NBA Pacers Thunder the NBA Finals presented by YouTube TV continue on ABC.
- [12:28]
Cammie
Hello, my name is Cammie and I'm calling from the San Francisco Bay area in California. My question is what is a mistrial and why are the lawyers defending Didi? Why are they calling for it and what do they think it's going to do if they successfully get it? Thank you. I really love your podcast, Cammie.
- [12:51]
Brian Buchmire
Thank you so much for asking this question. I love the legal questions. So to answer your question, there are two different types of mistrials. One mistrial is when a jury cannot come up with a unanimous verdict. You might have heard it as a hung jury. It is a hung jury, but then the judge will implement what's called a mistrial and the trial may reoccur again. But the type of mistrial that you're talking about is when a serious procedural error or some form of misconduct that will result in an unfair trial. That's when either party can ask for a mistrial. The reason why the lawyers defending Sean Combs are asking for a mistrial is because at any opportunity you can ask for one. You do so because you never Know one, if you're going to win the mistrial motion at the trial, or two, you win it on appeal and you want to make sure you're preserving every opportunity to win your case in this trial. So far we've seen two requests for a mistrial. One involving the insinuation that Sean Combs had something to do with the destruction of the fingerprint cards associated with the burglary in that Kid Cudi arson investigation. The second one that recently came up now is where the government is being accused of putting on a witness that they know or should have known to be lying. This is a big accusation because any attorney will tell you we are ethically not allowed to put on a witness that we know or should know is going to lie on the standard. Now, that lie does happen, it is grounds for a mistrial. Thanks for the question, Kami. Alright, next question.
- [14:27]
Kelsey
Hi, this is BART from Chicago area, Illinois. Here's the question. Such a big deal was made of Sean Combs that he brought a Bible to read when the jurors were coming in. Isn't that a worry that people would be offended if I were on a jury and saw him? Basically, I think using the Bible as a prophet that I would think that would backfire and anyway, enjoy the podcast. Hope you can answer that. Thank you. Bye bye.
- [14:55]
Brian Buchmire
I love this question because it leads so much into what I tell my clients when they're on trial. While juries might be listening to my opening statement or cross examination or focusing on the witness, every little action you as a defendant do while you're sitting there is under scrutiny. The difficulty though here is if you're a defense attorney, what do you say to your client about not reading the Bible before your trial is about to begin? It could be that this is truly his faith and that he believes this calms him or centers him or helps him get through this very difficult process. It could be that he's using it as a prop. But as a third party, I would have a difficult time telling someone, don't follow your faith, or questioning them as to whether or not that faith is true and valid or simply a prop. And so I think the safer thing, yes, to do nothing. But who's going to tell him that? I hear what you're saying. I think you'd make a great trial attorney because you're looking at the optics and you're looking at things beyond just the testimony, which makes for a sharp attorney. I will say this, though. We definitely saw the Bible come out during the jury selection and early on in the case. I haven't seen it since. For the most part, Sean Combs is very intense, focused on the testimony. Either he's leaning forward, having his glasses on, looking at the screen in front of him as to what evidence being presented, or he's sitting really far back in his chair observing the witness and the jury. And of course, as you heard, he might be vigorously nodding his head at the jury, either in agreement or disagreement of what he's hearing. But I haven't really seen the Bible come back out. Maybe that means he has a little bit more faith or a little less faith. I don't know. We'll find out. Let's end on this question from Teresa in South Dakota. She has a question about the old text messages coming up as evidence. She writes, how on earth were these messages recovered? Was the device saved all these years? It's been a decade. Or do they have the ability to go back into phone records like, are my messages now going to be available in the future? Or who knows what? Teresa from South Dakota, thanks for the question. I would say, don't worry. I don't think people are gonna be going through your devices from decades in the past. But to answer your questions more fully, don't forget that during the raid of Sean Combs two homes, both in Miami and in la, as well as the alleged victims turning over some of their devices, there have been forensic analysts who had the ability to go into laptops, cell phones, and find not only messages that were still there, but but messages that were deleted. If your mother is like mine and she says, don't put that on social media because even if you delete it, they'll still find it. This is the one time that mom is 100% right. Well, my mom is always 100% right because she listens to this. But that's true. Your information is often stored, whether it be on a physical phone or especially now with some of the newer phones, can be recovered from the cloud. For Cassie, I think it's somewhat easier because she had already told us on the stand that she had given many of her devices over, some of which were even broken and old, so that law enforcement can go through them and recover some of these messages. Oftentimes, if a person is not voluntarily giving over those devices, the court will issue a subpoena upon the request of either parties, the defense or the government, to take access to either your physical device or the electronic data that might be stored at a third party or somewhere else and be able to recover that information as a practicing attorney. I can tell you that we find all kinds of things when we're trying to look for information on people's phones who are connected to criminal cases. So if it was there at one point, it's going to be there, even those voice messages, because during the trial, we've heard Sean Combs voice come booming through the courtroom on some of the voice messages that he left with Jane through the text messages back and forth. So don't even think that your voice messages can't get recovered. They're absolutely out there. But thanks for the question, Teresa. So what's on tap for the remainder of the week in Diddy's trial? Well, with Jane finishing her direct examination on Monday night, the defense will have their opportunity to cross examine her starting Tuesday morning. We expect Jane's testimony to wrap on Thursday and there will likely be more witnesses before the prosecution rests itself case. If you have any questions for me, I'd love to hear them. You might even hear me answer your question on the air. Give us a call at 929-388-1249. If you appreciate our coverage, please share the Bad Rap podcast and give us a rating on Apple Podcasts or Spotify. If you're looking for more analysis of the Diddy trial every night of the week, you can check out Burden of the Case Against Diddy. It streams weekdays at 5:30 Eastern on ABC News Live. You can also find it on Disney plus, Hulu or on most of your favorite streaming apps.
- [20:12]
Brad Milke
Hey, I'm Brad Milke. I'm the host of the Crime Scene Weekly, a new show from ABC Audio about the latest headlines in true crime. And this week we're talking about the massive prison break that shocked Louisiana in recent weeks. How did these inmates escape? And was it an inside job? Listen now on Apple, Spotify, Amazon or wherever you get your podcasts.
- [20:34]
Ryan Reynolds
Hey there, it's Ryan Reynolds. And if you're into weird animals and questionable life choices, well, you're in for a treat. You tell them Green Day. I've teamed up with Nat Geo to fast forward right past nature's Loriogs and get down in the mud. These guys are the grossest, most unlikely stars in the great movie of life.
- [20:59]
Brian Buchmire
Underdogs new series, Sunday at 9 on National Geographic stream on Disney plus and Hulu.