May 4th, 2005 Trial Analysis: Rudy Provencio (Direct & Cross Examination), Part 4 of 4
In this excerpt, Provencio testified about his conversations with Cindy Montgomery about the surreptitiously recorded video of Jackson and his attorney Mark Geragos on their flight from Las Vegas to Santa Barbara, where he was to be arrested and formerly charged:
28 Q. BY MR. MESEREAU: You mentioned someone 8892
1 named Stuart Backerman, right?
2 A. Uh-huh. Uh-huh.
3 Q. And when did you first meet Stuart
5 A. When he was hired to come on for the “What
6 More Can I Give?” project. Or was it — no, he was
7 hired for the — for when he — he came on — excuse
8 me. He came on when Ronald brought him on to work
9 on the — the — kind of the fall-out of the Martin
10 Bashir thing. That’s when I believe he started
12 Q. Did you work with him directly?
13 A. Yeah, he was in the office.
14 Q. How long did you work with him?
15 A. Couple months. Well, not really. I mean,
16 probably a month and a half maybe.
17 Q. Now, in your notebook, you have phone
18 numbers and fax numbers for Access Hollywood?
19 A. Yes.
20 Q. MTV?
21 A. Uh-huh.
22 Q. Entertainment Tonight?
23 A. Uh-huh.
24 Q. Have you ever talked to anyone associated
25 with those organizations?
26 A. Yeah, they call — they were all calling us.
27 Q. About the case?
28 A. About the case? 8893
1 Q. Yes.
2 A. Not me. Marc did. But I just kept the
3 phone calls because they called in.
4 Q. Did you listen in on any of Marc’s calls to
5 the media?
6 A. A few of them. Like when he was — like I
7 said, he would have it on speakerphone, and you
8 would just sit there and you would just listen.
9 Q. Did you ever become aware of Marc’s efforts
10 to sell any information about Michael Jackson to the
12 MR. ZONEN: Assuming facts not in evidence.
14 THE COURT: Sustained.
15 Q. BY MR. MESEREAU: Do you remember discussing
16 with Cindy Montgomery the possibility that she
17 secretly videotaped Michael Jackson on an Xtra Jet
19 A. Did I talk to her about it?
20 Q. Yes.
21 A. I just — I don’t remember it. But probably
23 Q. Did you have a number of discussions with
24 Cindy Montgomery about the claim that she had
25 secretly videotaped Michael Jackson on an Xtra Jet
27 MR. ZONEN: Assuming facts not in evidence,
28 that she had secretly videotaped anyone. 8894
1 THE COURT: Sustained.
2 Q. BY MR. MESEREAU: Do you remember learning
3 about that issue?
4 A. Yes.
5 MR. ZONEN: Objection; vague. What issue?
6 Q. BY MR. MESEREAU: Cindy Montgomery
7 videotaping Michael Jackson on an Xtra Jet flight.
8 Do you remember learning about that subject?
9 MR. ZONEN: Objection; assuming facts not in
11 THE COURT: Sustained.
12 Q. BY MR. MESEREAU: Did you ever tell anyone
13 you thought Cindy Montgomery secretly videotaped
14 Michael Jackson on a flight?
15 MR. ZONEN: I’m going to object as
16 irrelevant; assumes facts not in evidence.
17 THE COURT: Overruled.
18 MR. ZONEN: And hearsay.
19 THE COURT: Overruled.
20 THE WITNESS: I don’t remember.
21 Q. BY MR. MESEREAU: Do you remember talking
22 with her about that subject?
23 A. Of her videotaping?
24 Q. The claim that she had.
25 A. That she — what the news was reporting?
26 Q. Yes.
27 A. Yeah, I brought it up to her. I believe so.
28 Q. Did you ever tell anyone you thought she had 8895
1 done it?
2 A. I was uncertain.
3 Q. To your knowledge, how long had Cindy
4 Montgomery been friendly with Marc Schaffel?
5 A. Well, I found out many things, but I found
6 out that —
7 MR. ZONEN: Judge, I’m going to object.
8 Lack of foundation, personal knowledge, and hearsay.
9 THE COURT: Foundation; sustained.
10 Q. BY MR. MESEREAU: How many phone calls of
11 Cindy Montgomery — excuse me. How many phone
12 conversations with Cindy Montgomery did you record?
13 MR. ZONEN: That was asked and answered.
15 THE COURT: Sustained.
16 Q. BY MR. MESEREAU: Did anyone from the
17 sheriff’s department ask you to record a phone
18 conversation with Cindy Montgomery?
19 A. No. But like I said, it just came on, so it
20 was an accident. I acknowledge that.
21 Q. It was a what?
22 A. It was an accident. I acknowledge that.
23 Q. Okay. It was an accident that you recorded
25 A. It was an accident that the thing — I
26 didn’t mean to record her.
27 Q. Okay. And how many times did you record her
28 in total, do you think? 8896
1 A. I think once or twice, because I wouldn’t
2 get to the thing and pick it up right away.
3 Q. Okay. And was this at your home?
4 A. Yes.
5 Q. Were you recording these phone conversations
6 out of your home?
7 A. Yes.
8 Q. Okay. Did the sheriffs give you some
9 equipment to use to record those conversations?
10 A. I went and got it.
11 Q. Yourself?
12 A. Yes.
13 Q. Had you ever done that before you began to
14 work with the sheriffs in this investigation?
15 A. Huh-uh.
16 Q. Did they tell you what equipment to buy?
17 A. No.
18 Q. Did you already know what kind of equipment
19 to buy for that purpose?
20 A. I just walked into Radio Shack.
21 Q. And when was that?
22 A. I don’t recall.
23 Q. You used to discuss entertainment projects
24 with Cindy Montgomery, right?
25 A. Correct.
26 Q. And why did you do that?
27 A. Because she had some good ideas.
28 Q. Was she involved with you in any 8897
1 entertainment projects?
2 A. Oh, yeah, we worked on Michael’s party
4 Q. And when was that?
5 A. September of ‘03.
6 Q. Was that a party at Neverland?
7 A. Yes. The Romero-Britto party.
8 Q. And you worked with Cindy Montgomery on
10 A. We did the — we did the thing for the
11 raffle, yes.
12 Q. And that was a charitable function?
13 A. I hope so. But, yes.
14 Q. It was a charitable function, correct?
15 A. Yes.
16 Q. Schaffel was involved in that, correct?
17 A. Yes.
18 Q. And you were working for Schaffel at that
19 time, right?
20 A. Well, no, I was working for Neverland Valley
22 Q. And this was when, September of 2003?
23 A. Yes. They had asked me to — to — if I
24 would be willing to do another fund-raising thing
25 and basically — and help Michael raise some money.
26 And I thought maybe that might be a good idea.
27 Q. Were you suspicious at the time that the
28 money might not go to charity? 8898
1 A. Well, I was uncertain, but — I don’t want
2 to think the worst, but —
3 Q. Did you keep working for Neverland Valley
4 after that date?
5 A. No.
6 Q. You didn’t work after September of 2003?
7 A. Oh, September 2003. Neverland Valley
8 Entertainment, getting a check?
9 Q. Yes.
10 A. No.
11 Q. When was this event that you just described?
12 A. It was in September.
13 Q. Of what year?
14 A. I think 2003. 2003 or 2004. Maybe I’m
15 wrong. I have a reference here. May I look at it?
16 Q. Sure.
17 A. Okay.
18 Q. Just looking for that day.
19 A. Yes. Yes, September 13th, 2003.
20 Q. And that was how long after you were
21 relieved that the family escaped?
22 A. It was a while.
23 MR. ZONEN: I’m going to object as asked and
24 answered and argumentative.
25 THE COURT: Sustained.
26 Q. BY MR. MESEREAU: Do you remember telling
27 Cindy Montgomery in a recorded phone conversation
28 regarding the Debbie Rowe interview that it was a 8899
1 sheet full of questions, in reference — referring
2 to the script? Do you remember that?
3 A. Yes, there was — there was a few, in the
4 beginning, a sheet full of questions, and then it
5 turned into having answers on it.
6 Q. All right.
7 A. It wasn’t just one piece of paper, ever.
8 Q. During the time you worked with Marc
9 Schaffel, how many times do you remember him going
10 to Brazil?
11 A. Quite a few times.
12 Q. And over —
13 A. Four, five times, maybe.
14 Q. Over what period of time would that have
16 A. Over a couple of years, that I knew of.
17 Q. To your knowledge, did Cindy Montgomery book
18 his trips to Brazil?
19 A. To my knowledge, yes.
20 Q. Do you know when you first talked to her?
21 A. About?
22 Q. Anything.
23 A. Probably not until the “What More Can I
24 Give?” project. Probably June, June 2001, when she
25 would call at the office.
Provencio told police additional information that was exculpatory, yet the prosecution went ahead and continued to insist that Jackson was the kingpin of the entire conspiracy. During his police interviews, Provencio repeatedly said that Jackson wasn’t told everything by everyone, and was outside of the loop on many important facts regarding the Arvizos:
26 Q. Do you remember giving the sheriffs your
27 handwritten notes about the taping of the Arvizos —
28 A. Right. 8900
1 Q. — where you said you saw the script
2 yourself. Questions only, no answers?
3 A. Yes. I wrote that.
4 Q. You gave those notes to the police, correct?
5 A. Right.
6 Q. You were referring to the taping of the
7 Arvizos, right?
8 A. Correct. And then later on, I believe, in
9 the notes I make another remark about it.
10 Q. Were you there during the taping of the
12 A. No. That was at Hamid’s place.
13 Q. Did you ever meet Jay Jackson?
14 A. No.
15 Q. To your knowledge, has Ian Drew been
16 speaking to Marc Schaffel as of late?
17 A. No. They don’t like each other.
18 Q. Did they ever work together, to your
20 A. Yeah, on the Debbie Rowe rebuttal.
21 Q. Did they work on any other projects
22 together, to your knowledge?
23 A. The — the one that was — they were at,
24 which was the Debbie Rowe rebuttal. I think there
25 was something else, but — I think there was
26 something in regards to —
27 MR. ZONEN: I’m going to object to lack of
28 foundation, unless it’s based on personal knowledge. 8901
1 THE COURT: Sustained. Foundation.
2 Q. BY MR. MESEREAU: Now, you mentioned hearing
3 some conversations that involved Mark Geragos,
5 A. Correct. He would call the office.
6 Q. Did you used to speak to Mark Geragos?
7 A. No, I didn’t speak to him.
8 Q. Ever spoken to him?
9 A. Just when he called the office.
10 Q. And did you ever actually have a
11 conversation with him?
12 A. No.
13 Q. Do you recognize his voice if you hear it?
14 A. It’s pretty distinctive, but —
15 Q. Did you ever listen in on any discussions
16 that Marc Schaffel had with Mark Geragos?
17 A. No.
18 Q. Well, in your response to the prosecutor’s
19 questions, you, I think, gave a number of how many
20 times you had — you recall Geragos calling
21 Schaffel, right?
22 A. Uh-huh.
23 Q. And how many times do you recall Geragos
24 calling Schaffel?
25 A. Well, he called quite a bit. When he —
26 Marc said that he only talked to him twice, but I
27 know he was calling often when Vinnie was there.
28 Q. Did you hear anything that Mark Geragos ever 8902
1 said in those conversations?
2 A. Just updates.
3 Q. You heard him giving updates?
4 A. No, he — he — Vinnie was giving him
6 Q. Could you hear Vinnie but not Geragos? Is
7 that the way it worked?
8 A. Well, yeah.
9 Q. Were you in the room?
10 A. And then he would hang up, and I would go,
11 “Who was that?” And he would go, “Oh, just Mark
13 Q. Were you in the room listening to Vinnie
14 speak to Mr. Geragos?
15 A. Well, sometimes it’s — well, it’s an
16 office, so if you’re on the fax machine or you’re on
17 the computer, you can hear people talking. So —
18 Q. Could you hear what Vinnie was saying?
19 A. Well, you could hear Vinnie, yes.
20 Q. Did you listen to his conversations with
21 Mark Geragos?
22 A. I heard the conversation in a work setting.
23 Q. And was this one conversation?
24 A. No, there were a couple.
25 Q. And where did they take place?
26 A. At Neverland Valley Entertainment.
27 Q. Have you ever met Mark Geragos?
28 A. Huh-uh. 8903
1 MR. MESEREAU: Let me take just one second.
2 THE COURT: Yes.
3 Q. BY MR. MESEREAU: You took notes — excuse
4 me. You’ve been writing notes about this case
5 almost up till the present, right?
6 A. Practically, uh-huh.
7 Q. And do you do this on a daily basis?
8 A. No.
9 Q. How often do you do it?
10 MR. ZONEN: Objection; asked and answered.
11 THE COURT: Sustained.
12 Q. BY MR. MESEREAU: Did you ever tell any
13 representative of the sheriff’s department that
14 Dieter didn’t tell Michael Jackson everything?
15 A. None of them told everybody everything,
16 so — that’s an accurate statement, you know,
17 because they had their own deal — oops, sorry.
18 They had their own deals they would do, and if they
19 weren’t part of Michael, I don’t think they would
20 tell him.
21 Q. During the time you worked with Neverland
22 Valley, was it your perception that Schaffel was
23 working closely with Dieter and Konitzer?
24 A. And Michael, yes.
25 Q. Well, but you’ve made — excuse me. But
26 you’ve told the police that you didn’t think Michael
27 Jackson knew what they were doing, correct?
28 A. No, not what they were doing. Not every 8904
1 thing. There’s a difference.
2 Q. Do you recall anyone in the sheriff’s
3 department ever giving you a police report to read
4 and make corrections to?
5 A. Oh, I’m — yes, I made corrections.
6 Q. And when did you do that, if you remember?
7 A. One of the meetings.
8 Q. Pardon me?
9 A. One of the meetings.
10 Q. Do you know who you were meeting with?
11 A. Yes.
12 Q. Who were you meeting with?
13 A. Gordon and Steve — or was it — oh, it was
14 Gordon. It was Jeff Klapakis.
15 Q. And where did that meeting take place?
16 A. In their office.
17 Q. And did someone give you a police report
18 about your interview to look at?
19 A. At that time?
20 Q. Yes.
21 A. No. They gave me a police report to look at
23 Q. When was that?
24 A. And I made corrections.
25 Q. When was that?
26 A. You know what? Honestly I don’t know.
27 Q. Were you given a copy of a police report
28 about a past interview you’d had for you to correct? 8905
1 A. Yes. Some of the words, like my name was
2 misspelled and other things like that. Plus, I’d
3 been getting phone threats, and I wanted to make
4 sure they knew that I had been getting some phone
5 threats lately.
6 Q. Well, my question is this: Who gave you a
7 police report from a past interview to look at and
8 make corrections?
9 A. Gordon.
10 Q. Gordon Auchincloss?
11 A. Yes, sir.
12 Q. All right. Did you do what he asked you to
14 A. He said to look it over, “Are these things
15 spelled right? Are these things right?” And I did.
16 Q. And when did that meeting take place?
17 A. I told you, I don’t exactly remember.
18 Q. Was it recently?
19 A. No. It was a while — a while ago. Maybe a
20 couple months ago, yeah.
21 Q. A couple of months ago?
22 A. Yeah, probably a couple months ago.
23 Q. And what report were you — excuse me. The
24 report that Mr. Auchincloss gave you to look at —
25 A. Uh-huh.
26 Q. — concerned an interview that was very old,
27 did it not?
28 A. Yeah. Like I said to you prior, that, you 8906
1 know, when that interview was taking place, I was
2 very nervous, and I could expand on certain things a
3 little bit better, bring clarity to it.
4 Q. And is that what you and Mr. Auchincloss
5 discussed the purpose of your looking at that report
7 A. No, he just said correct the spelling, and
8 if there’s something that’s totally wrong, just make
9 a mark on it.
10 Q. This is a report about an interview that had
11 happened a long time ago, correct?
12 MR. ZONEN: Objection; asked and answered.
13 THE COURT: Sustained.
Here is another example of the malicious motives that the prosecutors had in their hearts during their investigation, and how it affected their objectivity: in this excerpt, Provencio admits that he added Jackson’s name to a report that was based on a prior interview of his, in which he stated that he though Schaffel, Weizner, and Konitzer were doing things he thought was “wrong”. Provencio denied being told that he was told to add Jackson’s name, and insisted that he added it on his own initiative, well over a year after that particular interview. Sure……
14 Q. BY MR. MESEREAU: Do you remember looking at
15 that report of your prior interview where you talked
16 about Schaffel and Dieter and Konitzer doing things
17 you thought were wrong?
18 A. Yeah. I always thought that.
19 Q. And while you were sitting with Prosecutor
20 Auchincloss, you decided to add the name “Michael
21 Jackson,” right?
22 A. No. God, no.
23 Q. Did you ever add “Michael Jackson” to any
24 report that he gave you to correct?
25 A. I added — added “Michael Jackson.” Yes, I
26 added “Michael Jackson,” because that’s what I knew
27 from those two conference calls. That’s it.
28 Q. He wanted you to add the name “Michael 8907
1 Jackson” because it didn’t appear in your original
2 interview, right?
3 A. No, he didn’t want me to add it.
4 Q. Well, that’s what you did, isn’t it?
5 A. I added it, because it was correct.
6 Q. So you were correcting a statement you made
7 well over a year ago where you said Schaffel,
8 Konitzer and Dieter were doing incorrect things?
9 A. Uh-huh.
10 Q. And suddenly, right before the trial, you
11 handwrote in an additional name, Michael Jackson,
13 MR. ZONEN: I’m going to object as
14 argumentative; and narrative in the questioning.
15 THE COURT: Sustained.
16 MR. MESEREAU: No further questions at this
17 time, Your Honor.
18 Just one second, Your Honor. I’ve got a
19 bunch of stuff to move.
20 Thank you.
Under redirect examination, Zonen did damage control by having Provencio deny that he had ever changed his story to help the prosecution, and in doing so Provencio contradicted himself by stating that he thought Jackson had knowledge of what was going on with the Arvizos, based on a conversation that he overheard:
22 REDIRECT EXAMINATION
23 BY MR. ZONEN:
24 Q. Mr. Provencio, did anybody in law
25 enforcement ever ask you to change your testimony?
26 A. No.
27 Q. Did anybody in law enforcement ever ask you
28 to create facts to help this prosecution? 8908
1 A. Absolutely not.
2 Q. Would you have done such a thing?
3 A. No.
4 Q. Did Mr. Auchincloss ever ask you to change
5 any of the factual content in your report?
6 A. No.
7 Q. What exactly did he ask you to do with
8 regards to that report?
9 A. Look it over, make sure things are right,
10 that they’re spelled right. And my name was even
11 spelled wrong. And I didn’t give a taped recording,
12 so I know it was kind of handwritten-note-driven and
13 there was things missing. Because if you’re not
14 tape-recorded, then it can’t be like a transcript
16 Q. And did you make changes on that report?
17 A. Yes.
18 Q. All right. Did you believe that there was a
19 statement that missed Mr. Jackson’s name that should
20 have been included?
21 A. Yes. That’s why.
22 Q. What was it that you believed that Mr.
23 Jackson’s name should have been included on?
24 A. That he knew what was going on along with
25 everyone else, he knew what was happening.
26 Q. What did you base that on?
27 A. The conversation I heard.
28 Q. You had had many conversations with Mr. 8909
1 Jackson over the two years you worked for Neverland
2 Valley Entertainment; is that correct?
3 A. Not tons and tons, but many, yes.
4 Q. And had overheard many conversations that he
5 had with Mr. Schaffel?
6 A. That’s correct.
7 Q. Did you — was it your experience that Mr.
8 Jackson was actively involved in his own businesses?
9 A. He’s a brilliant businessman. He knows
10 what’s going on.
11 Q. And he would ask questions frequently?
12 A. He wanted updates.
Next, Zonen tried to get clarification about the altered passage from Provencio’s notes:
13 MR. MESEREAU: Objection; leading.
14 THE COURT: Overruled.
15 Q. BY MR. ZONEN: Do you have the notebook with
16 you that contains that note that you wrote on —
17 that is dated February 1, ‘03?
18 A. May I look?
19 Q. Please.
20 A. Okay. In regards to the conference call?
21 Q. It was a note that was shown to you by Mr.
23 Could I approach the witness?
24 THE COURT: Yes.
25 THE WITNESS: Yes.
26 Q. BY MR. ZONEN: Do you have that with you?
27 A. Yes.
28 Q. Would you pull it out, please? 8910
1 A. Okay. Oh, here it is. Is it this one?
3 Q. Those are the original notes; is that
5 A. Yes.
6 Q. And may I take a look at it?
7 A. Sure.
8 Q. Now, you — are these the notes that you
9 refer to as the ones that went into a storage
11 A. Yes. And I have the storage locker thing to
12 show that that’s when I found them.
13 Q. Would this be the front of the notebook
15 A. Yeah. It looks juvenile, but, yeah.
16 Q. That’s all right. We have “N-V-E” —
17 A. Right.
18 Q. — in kind of block letters. Is that
19 Neverland Valley Entertainment?
20 A. Right.
21 Q. All right. Now, as we proceed to the
22 section that has February 1, ‘03 — and you see that
23 page right here; is that correct?
24 A. Uh-huh. Uh-huh.
25 Q. Now, let’s back up one, two pages.
26 A. Uh-huh.
27 Q. And this would be closer to the front of the
28 notebook; is that correct? 8911
1 A. Right.
2 Q. And here we have a date, February 17, ‘03?
3 A. Uh-huh.
4 Q. Can you explain how that is, that you have
5 an entry from February 17 closer to the front of the
6 notebook and this reference that Mr. Mesereau talked
7 to you about, February 1, ‘03, two full pages
8 beyond? How is that?
9 A. Well, my notebook’s random. I doodle in it.
10 I mean, I flick — open a page that’s open, and I
11 just write. Then there’s — it’s on both sides.
12 I’ve got horrible drawings, and that’s what —
13 that’s what my notebook is. It’s for me and my eyes
14 only, so it’s not really meant for other people to
15 see and care about it.
16 Q. I guess the question, then, is this: Should
17 we assume that the order in which we see the pages
18 is the order in which they’re entered?
19 A. Oh, no. For — if it’s — if the first page
20 is supposed to be January 1st and then the third
21 page, you know, or second page January 2nd, no, it’s
22 not written like a diary.
23 It’s written like a notebook would, from an
24 office. You just scribble on whatever you scribble
25 on. This is the notebook I just carried around.
26 Q. Now, this notebook ended up in a storage
27 locker; is that correct?
28 A. Yes. 8912
1 THE COURT: All right. We’ll take our break.
2 (Recess taken.)
3 MR. ZONEN: May I proceed?
4 THE COURT: Yes.
5 Q. BY MR. ZONEN: I’d like to go back to a
6 couple more inquiries about that notation in your
7 notebook that includes the reference to —
8 BAILIFF CORTEZ: Turn your microphone on,
10 Q. BY MR. ZONEN: Let me go back to that
11 notation in your notes of February 1, ‘03. You had
12 testified as to the paragraph that was right after
13 February 1, ‘03, and then another paragraph that
14 followed after that, “Family in danger.”
15 A. Uh-huh.
16 Q. “Who are these killers? Nobody but the
17 press are calling.”
18 A. Uh-huh.
19 Q. Do you have an opinion as to whether or not
20 that paragraph was written on February 1, ‘03?
21 A. Well, like I said to Mr. Mesereau, that’s a
22 different paragraph with the slant going different,
23 and it’s a different kind of writing. I have
24 different style writing, and like I showed
25 everybody, including Mr. Mesereau, I scribble and
26 write all over the place.
27 Q. Okay. But the question is, do you have an
28 opinion as to whether that paragraph was written on 8913
1 a day other than February 1, ‘03?
2 A. Yes.
3 Q. Okay. What is that opinion?
4 A. I just — I just wrote it as I heard it, and
5 it was later.
6 Q. At a later time?
7 A. Yeah.
8 Q. Do you have any way of knowing how much
9 later that was?
10 A. Not unless I put a date on it.
11 Q. And you didn’t put a date on it on this
13 A. Huh-uh.
14 Q. Is your handwriting different in that
15 paragraph than the paragraph that precedes it, the
16 paragraph directly above it?
17 A. Yes, as in all — my whole book I have
18 different styles of writing based on urgency. And
19 if I take my time, I really write well, and if I
20 don’t, it looks like chicken scratch.
21 Q. Let’s go to the paragraph above it. There’s
22 some reference to Mexicans in that, and there are a
23 few references in your notes to that, correct?
24 A. Yes. Yes.
25 Q. When did you first hear that reference to
27 A. It was when the family first came to the —
28 Neverland Valley Entertainment and Gavin came in and 8914
1 went down to the bathroom.
2 Q. All right. Was that after the 1st of
4 A. That was — yeah, that would have been after
5 the 1st, but I had heard — I had heard them talk
6 about them —
7 MR. MESEREAU: Objection. Reference to
9 THE COURT: Sustained.
10 Q. BY MR. ZONEN: Who are you talking about,
12 A. The family.
13 Q. The Arvizo family?
14 A. Yeah.
15 Q. All right. When was the first time you
16 heard Marc Schaffel speak in a derogatory fashion
17 about the Arvizo family?
18 A. Well, unfortunately, Marc is catty and spoke
19 in derogatory terms about everybody. And so the
20 first time, I think, was actually in January. But I
21 don’t think I wrote it down till later. You know,
22 not right when he said it, but when I heard it the
23 next time, I wrote it down.
24 Q. Were you hearing conversation from Marc
25 Schaffel about the Arvizo family as soon as you had
26 read the transcript that was delivered to you by
27 Kathryn Milofsky?
28 A. Yes. Oh, absolutely. 8915
1 MR. MESEREAU: Objection; leading.
2 THE COURT: Sustained.
3 Q. BY MR. ZONEN: When did you first start
4 hearing commentary from Marc Schaffel about the
5 Arvizo family?
6 A. That day.
7 Q. What day?
8 A. The 24th of January.
9 Q. And the 24th of January was —
10 A. I believe it was the 24th of January.
11 Q. Was what?
12 A. Oh — oh, ‘03.
13 Q. When you received the transcript?
14 A. Right.
15 Q. Did the commentary from Mr. Schaffel about
16 the Arvizo family change over time?
17 A. Well, the —
18 MR. MESEREAU: Objection; vague.
19 THE COURT: Sustained.
20 Q. BY MR. ZONEN: You told us that at some
21 stage they were speaking favorably of the Arvizo
23 A. Right.
24 Q. Who is “they”?
25 A. Vinnie, Frank, Marc, you know, because Marc
26 had already started talking to — he had been
27 speaking to Frank for a while, trying to ingratiate
28 himself back into Michael’s world and stuff. And he 8916
1 was informed from Ronald and Dieter, and this is
2 what Marc had told me, that there was this family
3 that the boy had cancer. And so they were
4 wonderful, good people at that time. And so I heard
5 that early on.
6 Q. Did they discuss the family in a religious
8 MR. MESEREAU: Objection; leading.
9 THE COURT: Overruled.
10 You may answer.
11 THE WITNESS: Yes.
12 Q. BY MR. ZONEN: What did they say?
13 A. They were deeply religious, so — Catholic I
14 believe is what he said.
15 Q. Now, you’ve mentioned the term “crack
17 A. Oh, yeah.
18 Q. And who used that term?
19 A. They all did.
20 Q. When?
21 MR. MESEREAU: Objection.
22 THE COURT: Sustained.
23 Q. BY MR. ZONEN: Who are “all,” if that
24 sentence is even close to permissible?
25 A. Vinnie, Frank, Marc.
26 Q. I’m sorry?
27 A. Vinnie, Frank and Marc.
28 Q. Vinnie, Frank and Marc all used that term? 8917
1 A. Yeah. I double-checked, and I said, “Did
2 you see them smoke crack? On the ranch?” See, that
3 didn’t make any sense.
4 Q. Did anybody acknowledge actually seeing
5 anybody in the Arvizo family smoking crack?
6 A. No.
7 Q. Did you confront each of them with that?
8 A. Yeah, I asked them, because it just sounded
10 Q. Did all three of them use that expression?
11 A. Yeah, they said that, “Oh, well, no, Marc
12 told me they were using crack.” And then, “No,
13 Frank told me she was using.”
14 And I was like, “Oh, whatever.” So it was
15 like —
16 Q. Did they say who in the Arvizo family was
17 using crack?
18 A. The mom.
19 Q. The reference on that note on February 1,
20 ‘03, to “Mom flipping out,” who was it who told you
22 A. Marc did.
23 Q. Did he —
24 A. Because — oh. Sorry.
25 Q. Did he give you any other information about
27 A. No, not really, because I don’t know what
28 she was flipping out about. I mean, she was kind 8918
1 of — as I said, she was kind of cuckoo, so it could
2 have been anything, I guess.
3 Q. And the reference to the subsequent
4 paragraph where it says, “Who are these killers?
5 Nobody but the press are calling” —
6 A. Uh-huh.
7 Q. — what does that mean, “Nobody but the
8 press are calling”?
9 A. Well, the 24th transcript comes, and the
10 press are already calling. They want to ingratiate
11 themselves to either Marc or whoever.
12 That’s the game. You know, you get there
13 first. You’re buddy-buddy.
14 MR. MESEREAU: Objection; nonresponsive.
15 Q. BY MR. ZONEN: Did anybody from the press
16 mention anything about killers?
17 A. No.
18 Q. Did you receive any telephone calls from
19 people voicing threats against anyone?
20 MR. MESEREAU: Objection; leading.
21 THE COURT: Overruled.
22 You may answer.
23 THE WITNESS: I never — I never heard any
24 threats coming in.
25 Q. BY MR. ZONEN: Did you know anything about
26 threats at all —
27 A. Huh-uh.
28 Q. — other than these statements about 8919
2 A. I was hearing about this. That’s why I
3 wrote it down. I was like, “What the hell? What
4 are the killers?”
5 Q. The conversation you had with Ian Drew where
6 the word “escape” came in, when was that
8 A. Gosh. A while ago.
9 MR. MESEREAU: Objection; assumes facts not
10 in evidence.
11 THE COURT: Overruled. The answer is in.
12 Next question.
Provencio was questioned again about the undercover informant work he did for the prosecution during their investigation:
13 Q. BY MR. ZONEN: Did you begin recording
14 conversations with people prior to the involvement
15 of law enforcement?
16 A. No.
17 Q. Why did you record telephone conversations?
18 A. Well, I — everybody had been doing so much
19 shady crap, and I just was like — I was just tired
20 of it, you know. I was just tired, because it was
21 involving me still and ruining my career, and I just
22 figured, “You know what? I’m just going to do this
23 for the right people and I am going to do it.”
24 And, you know, I hem-hawed for a long time,
25 because I knew it would really — in Hollywood, that
26 would ruin your career.
27 Q. What do you mean by that?
28 A. Well, it’s — you know, it’s — you don’t 8920
1 want people to think that of you. But I did it
2 because I made a choice. You know, like I even told
3 my father on his deathbed. He said, you know, “You
4 have to live your life without regret.”
5 MR. MESEREAU: Objection. Nonresponsive;
6 move to strike.
7 THE COURT: As to the last sentence, I’ll
8 strike it.
9 Q. BY MR. ZONEN: Do you believe there’s going
10 to be a consequence for you in your profession for
11 having cooperated with law enforcement?
12 MR. MESEREAU: Objection; calls for
14 THE COURT: Sustained.
15 Q. BY MR. ZONEN: Have you had a consequence to
16 your profession because of your involvement in this
18 A. Oh, yeah.
19 MR. MESEREAU: Objection. Relevance; calls
20 for speculation.
21 THE COURT: Sustained.
Here are questions about his LLC:
22 Q. BY MR. ZONEN: What is Steal the Stage, LLC?
23 A. It was a company that basically Vinnie,
24 Marc — and I don’t remember if Frank was involved
25 or not, like I said before, but we decided that
26 maybe we should open an LLC. It was in the office.
27 It was early, whatever, but — so that we could
28 possibly do other things outside the realm of 8921
1 Michael Jackson. Not just use Michael Jackson’s
2 name for things, but do our own things.
3 Q. Did you ever begin working on such a thing?
4 A. No. Nothing ever happened with it.
5 Q. Was there any project that had ever actually
6 been commenced?
7 A. No.
8 Q. What did you mean by the statement “making
9 money off or with Michael Jackson” in reference to
10 Marc Schaffel?
11 A. Well, they would use his name to, you know,
12 make money. I mean, they would — you know, some
13 things he was included and did things with, and then
14 some things, you know, Marc was doing his own thing.
15 So —
16 Q. Like what?
17 A. You know, like him and Dieter wanted to put
18 out some book. You know, it was a table — coffee
19 table book or something. And it had Michael’s
20 authorization, but they were kind of doing it. You
21 know, but I wasn’t really — the details on exactly
22 who knew what, or whatever, isn’t clear to me. But
23 I knew that that was something that they were
24 pursuing, but it didn’t necessarily need Michael’s
25 involvement every day like something like working on
26 a charity single did.
27 Q. Did you believe that that was going to
28 profit somebody other than Michael Jackson? 8922
1 MR. MESEREAU: Objection. Calls for
2 speculation; leading; foundation.
3 MR. ZONEN: It’s in response to his
5 THE COURT: Overruled.
6 You may answer.
7 Q. BY MR. ZONEN: Go ahead.
8 A. Everybody would have benefited I’m sure.
9 Q. Including Michael Jackson?
10 A. Yes.
11 Q. Did you see at any time Marc Schaffel
12 involved in any activity that you believed was done
13 for purposes of cheating Michael out of money?
14 A. I think — well, that’s why I kind of kept
15 on keeping track. I was trying to figure out what
16 the whole story was. So to answer yes or no, I
17 guess — I guess it would have to be probably — I
18 would say yes. He was doing things, and some
19 things —
20 Q. Like what?
21 A. Well, like I don’t know if that coffee table
22 book thing was on the level, you know.
23 Q. Okay.
24 A. And there was these MJ speakers. Like where
25 in the heck did those come from? You know, all of a
26 sudden —
27 Q. What is an MJ speaker?
28 A. I don’t know. They had some speakers that – 8923
1 Q. Are you speaking people speaking, or —
2 A. Like speakers for his home stereo system. I
3 was just like, “Where did those come from? And what
4 the world were those?”
5 Q. Did you ever inquire as to whether that was
6 a project that did or did not have Mr. Jackson’s
8 A. It had his name on it, and Dieter and Ronald
9 were practically living at the ranch, so when they
10 showed up, I just was like — also, they showed up
11 at the RMAs in Las Vegas.
12 Q. All right. But did you have any information
13 from any of them that these were projects that were
14 done to the exclusion of Michael Jackson?
15 MR. MESEREAU: Objection; leading.
16 MR. ZONEN: I’m sorry, I didn’t hear.
17 THE COURT: All right. You may answer that
18 “yes” or “no.” Do you want the question read back?
19 THE WITNESS: Yes, please.
20 (Record read.)
21 THE WITNESS: No, not the exclusion. They
22 always said that Michael knew.
In this excerpt, Provencio is asked about Frank Cascio’s relationship with Michael Jackson:
23 Q. BY MR. ZONEN: All right. What was Frank
24 Cascio’s relationship with Michael Jackson?
25 A. He was a family friend.
26 MR. MESEREAU: Objection; foundation.
27 THE COURT: Sustained.
28 Q. BY MR. ZONEN: During the time that you knew 8924
1 both Frank Cascio and Michael Jackson, did you see
2 them together?
3 A. Yeah, at the ranch and at the studio.
4 Q. Did you see them interact with one another?
5 A. Yeah. Especially at the studio.
6 Q. Did Michael Jackson ever tell you about his
7 relationship with Frank Cascio?
8 A. No. Frank told me.
9 Q. Did — did — during the entirety of your
10 two years of dealing with Michael Jackson or
11 Neverland Valley Entertainment, was Frank Cassidy
13 A. Cassidy?
14 Q. Excuse me, Frank Cascio.
15 A. Okay. Was he involved?
16 Q. Was he involved?
17 A. Yes.
18 Q. So was there any time during the time that
19 you were involved with Neverland Valley
20 Entertainment that you were not dealing at one point
21 or another with Frank Cascio?
22 A. Gosh, you know what? No, because he was
23 there bringing — he would come to the studio, and
24 then — and then, you know, when, you know, there
25 was the firing.
26 MR. MESEREAU: Objection; nonresponsive.
27 THE WITNESS: Oh.
28 THE COURT: After “No,” I’ll sustain that. 8925
1 MR. MESEREAU: Move to strike.
2 THE COURT: Strike it after “No.”
Provencio didn’t believe that Debbie Rowe was being honest in her interview, despite what he said earlier:
3 Q. BY MR. ZONEN: Mr. Mesereau had asked you if
4 you had made the statement in an interview that
5 Debbie Rowe was honest and sincere in her interview.
6 A. Uh-huh.
7 Q. Do you recall making that statement?
8 A. Not really, no.
9 MR. MESEREAU: Objection; asked and
11 MR. ZONEN: Not by me.
12 THE COURT: The objection is overruled. And
13 he did answer the question.
14 THE WITNESS: I’m sorry —
15 MR. ZONEN: The answer is in?
16 THE COURT: The answer is in. He said, “No.”
17 Q. BY MR. ZONEN: Do you believe that Debbie
18 Rowe was honest and sincere in her interview?
19 A. No.
20 Q. I’m sorry?
21 A. No.
Next, Provencio admitted that he gave an interview to police in his pajamas!
22 Q. Mr. Mesereau was asking you questions about
23 your answers to questions put to you by Detective
24 Sergeant Robel in the January 24, ‘04, interview.
25 A. Uh-huh.
26 Q. Did you have any pre-notice about that
28 A. Pre-notice? 8926
1 Q. Yeah. Did they call you in advance and say
2 they were going to be coming by to ask you some
4 A. In the very first time I meet them?
5 Q. That’s right.
6 A. No.
7 Q. Was that interview conducted on the very day
8 that you met them?
9 A. Yeah. They just asked me basic questions.
10 Q. How long was that interview?
11 A. God, not more than 30 minutes. I mean, it
12 was just like, “Where’s your car? Is this your
13 computer?” Things like that.
14 Q. And you did cooperate with them; is that
16 A. Yeah. I gave them my notes.
17 Q. Now, in the course of this interview, were
18 they interested in conversations that you had with
19 any of these other people that you’ve been
20 testifying about today?
21 A. Well, yeah, but, you know, I was outside in
22 pajamas, so it wasn’t like I was going to go very
24 Q. Is it the case that you were giving them as
25 much information as you were able to recollect on a
26 moment’s notice in your pajamas —
27 MR. MESEREAU: Objection; leading.
28 Q. BY MR. ZONEN: — about many people? 8927
1 MR. MESEREAU: Move to strike.
2 THE COURT: Yes. Stricken.
3 Q. BY MR. ZONEN: Were you really in your
5 A. Yeah. I was — I was in my pajamas and
6 freaking out, yeah.
7 Q. And in this 30-minute conversation, did you
8 give them as much information as came to mind at
9 that time?
10 A. Yeah. I mean —
11 MR. MESEREAU: Objection; leading.
12 THE COURT: Sustained.
13 Q. BY MR. ZONEN: What were the difficulties in
14 your being able to recall facts at that time?
15 MR. MESEREAU: Objection; leading.
16 THE COURT: Overruled.
17 You may answer.
18 THE WITNESS: I was just extremely nervous.
19 Here was — here was one explosion — yet another
20 Neverland explosion, so — happening at my front
22 Q. BY MR. ZONEN: What does the expression “all
23 fingers point to Marc” mean?
24 A. He was organizing, informing. He was taking
25 care of some of the business of, you know, paying
26 Vinnie and Frank. You know, money, receipts. It
27 was a lot of, you know, that kind of business going
28 on. 8928
1 Q. There was a woman Mr. Mesereau asked you
2 about from Japan. There was a woman that Mr.
3 Mesereau asked you about from Japan. His question
4 suggested that Mr. Schaffel stole from that woman.
5 A. Uh-huh.
6 Q. Do you have information about that
8 A. I just know that — that he had bragged and
9 said that — he didn’t brag, per se, but he just
10 said — later on I said, “Well, how did you get that
11 money?” And he said, “Oh, well, she died. It
12 doesn’t matter.”
13 Q. All right. What was the nature of the
14 transaction between this woman and Mr. Schaffel?
15 A. She was going to try to buy the rights to
16 “What More Can I Give?” I guess, and then — and
17 hopefully Marc was going to convince Michael to do a
18 show in Japan.
19 Q. All right. Did she advance money in that
21 A. Yes.
22 Q. And then she died?
23 A. Then she died.
24 Q. Was it your belief that Mr. Schaffel should
25 have returned the money to the family?
26 A. Absolutely. Absolutely.
27 Q. And he did not do that?
28 A. Yeah, and like I said, I didn’t know exact – 8929
1 you know, contract, maybe there was some clause in
2 there, but I just thought it was the right thing to
3 do. If somebody dies and you’re in it, in the
4 middle of an agreement, then you should give that
5 money back, especially like a million bucks.
6 Q. You gave your point back to Mr. Jackson,
7 didn’t you?
8 A. Yes.
9 Q. Did you have a conversation with Mr.
10 Schaffel at that time suggesting that he do the same
11 with his points?
12 MR. MESEREAU: Objection; leading.
13 THE COURT: Overruled.
14 You may answer.
15 Q. BY MR. ZONEN: Did you?
16 A. I thought — I thought we were all giving
17 our points back because that was the right thing to
19 Q. Did he tell you whether or not he would do
21 A. He never answered me, but then I didn’t care
23 Q. Do you know whether or not he did that?
24 A. I don’t know.
25 Q. Do you know what your point was worth?
26 A. Well, I got an offer of a million bucks for
27 it from this guy from Korea.
28 Q. Did you turn it down? 8930
1 A. Oh, yeah. I turned it down.
2 Q. Why?
3 A. I mean, Michael gave it to me in the spirit
4 of good faith. And I thought it was — you know,
5 that was going to be worth a lot of money, so I gave
6 it back because I couldn’t miss what I didn’t have.
7 And I thought — I kind of felt sad for everybody.
8 I mean, I kind of felt sad. I loved them and at the
9 same time didn’t like what they were doing, but I
10 felt sad for them, and at the same time I kind of
11 figured, you know, I was a good person coming into
12 this, and I think that I’ll be an okay person
13 leaving, too, so –
In this excerpt, Zonen tried to harp on the absolute irrelevant fact that Jackson paid Marlon Brando one million dollars for his appearance at his 30th Anniversary concert in 2001:
14 Q. Are you intending on writing a book on this
16 A. No, I’m not intending to write a book.
17 Q. What was the meaning of the reference, the
18 statement to Cindy Montgomery?
19 A. The book just means this is a book. I mean,
20 this is like — this is like a story I don’t think
21 anybody would believe. I mean, this is just — it’s
22 outrageous. It’s really an outrageous, ridiculous
23 train wreck story.
24 Q. You said to Mr. Mesereau you weren’t allowed
25 to talk on the phone at Neverland. What did you
26 mean by that?
27 A. Oh. I was just told by everybody not to
28 talk on the phone. We were always monitored. 8931
1 That’s what I — that’s why I didn’t really feel bad
2 recording people. I was always monitored, so what
3 the heck.
4 Q. Who told you that?
5 A. Frank, Vinnie and Marc.
6 MR. MESEREAU: Object.
7 THE WITNESS: Because I would say something,
8 and they would shut me up and say, “Don’t say that
9 on the phone here.” And I was like, “Oh, okay.”
10 Q. BY MR. ZONEN: You told Mr. Mesereau that
11 Mr. Jackson gave one million dollars to Marlon
12 Brando. Is that true?
13 A. Yes.
14 Q. When did that take place?
15 A. Right after the 30th Anniversary Special in
16 New York before September 11. But the check
17 actually didn’t get — you know, because we were
18 stuck there in New York. The check didn’t actually
19 get to Marlon Brando until afterwards.
20 Q. When was the direction from Mr. Jackson to
21 turn a million dollars over to Marlon Brando?
22 A. Well, he was upset that Marlon Brando got
23 booed and just said, you know, in that kind of
24 deeper voice, he just says, “You got to give him a
25 million dollars.” And we were just like, you know,
27 Q. And where did this money come from?
28 MR. MESEREAU: Objection; foundation. 8932
1 THE COURT: Sustained.
2 Q. BY MR. ZONEN: Were you present at the time
3 Mr. Jackson made that statement?
4 A. Yeah, we were in the dressing room. We were
5 in the back.
6 Q. To whom did he make that statement?
7 A. To Marc.
8 Q. Were you there at that time?
9 A. Yeah, we were both standing there, because
10 we were both — our faces were set to stun, really.
11 You know, I wanted to get booed, so —
13 Q. Incidentally, do you know what Marlon Brando
14 did to warrant being booed?
15 A. Yeah.
16 MR. MESEREAU: Objection; relevance.
17 THE COURT: Sustained.
18 Q. BY MR. ZONEN: All right. Let’s go back to
19 the million dollars. Was he paid a million dollars,
20 Mr. Brando?
21 MR. MESEREAU: Objection; foundation.
22 THE COURT: Sustained.
23 Q. BY MR. ZONEN: Did you have an opportunity
24 to look at the bank records dealing with that
26 A. I saw the check.
27 Q. You saw the check. The check was made on
28 whose account? 8933
1 A. Neverland Valley Entertainment.
2 Q. All right. How long after that encounter
3 was that check written on Neverland Valley
5 A. Well, as soon as we got back, because we
6 flew back private jet. So as soon as we got back,
7 you know, he started working and complaining about
9 Q. So was this part of the money that came from
10 the Parviz loan?
11 A. Oh, yeah.
12 Q. This was part of your operations money; is
13 that right?
14 A. Uh-huh.
15 MR. MESEREAU: Objection; leading.
16 THE COURT: Sustained.
Zonen had a few more questions regarding Provencio’s police interview, and his knowledge of music industry customs regarding liner notes, and ended his redirect examination:
17 Q. BY MR. ZONEN: At the time the police came
18 to your house when you were in your pajamas, did
19 they have a search warrant?
20 A. They had one with them, but they didn’t need
21 to serve it.
22 Q. And why is that?
23 A. Because I believe — I believe that you
24 should work with law enforcement.
25 MR. MESEREAU: Objection. Objection.
26 Nonresponsive; relevance.
27 THE COURT: Sustained.
28 Q. BY MR. ZONEN: You’ve been in the music 8934
1 industry, I think you said, 20 years; is that right?
2 A. Yeah, 20 years. Started when I was 18.
3 Q. Have you been involved with albums before?
4 A. Yeah, plenty.
5 Q. Are you familiar with people putting credits
6 on the album jacket?
7 A. They’re called liner notes, yes.
8 Q. Called what?
9 A. Liner notes.
10 Q. Liner notes; is that right?
11 A. Uh-huh.
12 Q. All right. Is it generally the habit and
13 custom of artists to do that for people who they’re
14 close to or people who have a particular interest in
15 the production of that album?
16 A. Yeah. Oh, yeah.
17 Q. Is it generally the case that they hold them
18 in high regard?
19 A. Yes.
20 Q. Would there be people contained —
21 MR. MESEREAU: Objection. Foundation; move
22 to strike; and calls for speculation.
23 THE COURT: I’ll strike the last answer.
24 Sustain the objection.
25 Q. BY MR. ZONEN: Is there any expectation in
26 the record industry that a person would
27 automatically be included in one of these things?
28 A. Huh-uh. 8935
1 MR. MESEREAU: Objection. Foundation; calls
2 for speculation; relevance.
3 THE COURT: Sustained.
4 MR. ZONEN: I have no further questions.
Under recross examination, Provencio was caught in another lie! Mesereau pounced on his earlier statement to Cindy Montgomery about not giving his lawyer his detailed notes because he could use them to write a book, yet subsequently denying that he planned on writing a book:
7 BY MR. MESEREAU:
8 Q. Now, Mr. Provencio, on cross-examination you
9 admitted having a discussion with Cindy Montgomery
10 about your notes and saying to her the following:
11 “I’ll give my lawyer the bullet points, overview,
12 but not giving him my detailed notes. Are you
13 kidding me? That’s a book, honey.”
14 A. Uh-huh.
15 Q. What is your explanation now for that?
16 A. It’s — it’s like — it’s like a really bad
17 fairy tale that — it’s like a book nobody would
18 believe. I mean, you wouldn’t believe it if you
19 read it. It’s kind of unbelievable. It’s an
20 unbelievable story, I think.
21 Q. Were you telling the jury when you made that
22 statement in a recorded phone call with Cindy
23 Montgomery you were not referring to your writing a
25 A. Not at that time.
26 Q. Whose book were you referring to when you
27 said —
28 A. The tale. 8936
1 Q. — when you said, “That’s a book, honey”?
2 A. That’s a book. It’s a tale. It’s like an
3 unbelievable tale and a book.
4 Q. When you said, “I’ll give my lawyer the
5 bullet points,” which lawyer were you talking about?
6 A. An entertainment lawyer that I dealt with.
7 Q. You said, “I’ll give my lawyer the bullet
8 points, overview, but not giving him my detailed
9 notes. Are you kidding me? That’s a book, honey.”
10 A. Uh-huh.
11 Q. Are you telling — excuse me. Are you
12 testifying under oath that you were not referring to
13 your writing a book?
14 A. That’s true.
15 Q. Okay. All right.
Next, Mesereau went into further detail about the police interview report that Provencio edited and added Jackson’s name to. The interview took place at his home on January 31st, 2004, and during that interview Provencio stated that he believed that Schaffel, Weisner, and Konitzer were doing things that made him suspicious, but in April 2005 Provencio added Jackson’s name to that list.
Try to contain your laughter as you read Provencio’s explanation for this!
16 Now, the prosecutor for the government asked
17 you some questions about your interview with
18 Sergeant Robel of January 31st, 2004, correct?
19 A. Who’s the government? I’m sorry.
20 Q. These guys.
21 A. Oh. Okay. Law enforcement. Okay. So,
22 state your question again, please. I’m sorry.
23 Q. The prosecutor asked you about your
24 interview with Sergeant Robel of January 31st, 2004,
26 A. Correct.
27 Q. That’s when you say you were in your pajamas
28 and just don’t remember a lot of things, right? 8937
1 A. Well, when the police show up, you freak
2 out, so, yeah, that’s true.
3 Q. So you told Sergeant Robel in that interview
4 that you were going to tell him everything you knew,
5 but you didn’t want to be recorded, correct?
6 A. Oh, no, that was an interview — oh, the
7 2000 — wait. Hold on a second. So when they came
8 to my house and served me with a search warrant, are
9 you talking about that particular time, or are you
10 talking about —
11 Q. Excuse me. I’m sorry. Let me rephrase the
13 A. Okay.
14 Q. You were interviewed by Sergeant Robel on
15 January 31st, 2004, correct?
16 A. Correct.
17 Q. Is that the interview you claim you gave
18 while you were in your pajamas?
19 A. If that’s the interview at the hotel, I was
20 not in my pajamas. The time I was in my pajamas is
21 when they first came to my house with a search
23 Q. There are nine pages of comments you made
24 about these events in that interview, right?
25 A. Uh-huh. I guess, if they’re there.
26 Q. Well, the interview took place January 31st,
27 2004, right?
28 A. Where? Does it say where? 8938
1 Q. It says “in Los Angeles area.”
2 A. Okay.
3 Q. Right?
4 A. Not Calabasas?
5 Q. You gave an interview on January 31st, 2004,
6 to Sergeant Robel, correct?
7 A. Right. Right.
8 Q. You said in that interview you were going to
9 tell him everything you knew, but you didn’t want it
10 tape-recorded, right?
11 A. Correct.
12 Q. You were given that report recently to look
13 at, correct?
14 A. To correct spelling. I corrected the
16 Q. Well, you did a lot more than that with it,
17 didn’t you?
18 A. Well —
19 MR. ZONEN: Objection; asked and answered.
20 THE COURT: Overruled.
21 You may answer.
22 THE WITNESS: Yes, I made — because it was
23 not taped, I guess not everything I know is in my
24 head made it on that piece of paper.
25 Q. BY MR. MESEREAU: So approximately two weeks
26 ago would be —
27 A. Uh-huh.
28 Q. — April of 2005, correct? 8939
1 A. Right.
2 Q. Prosecutor Auchincloss gives you a police
3 report about your interview on January 31st, 2004,
5 A. Right. The book, or whatever.
6 Q. He says, “Read it and correct it,” right?
7 A. No. He says — he says, “Look it over.”
8 “Look it over. Is this information correct, to your
9 best ability?”
10 Q. And you started adding the name Michael
11 Jackson to statements you had made about Dieter,
12 Konitzer and Schaffel —
13 MR. ZONEN: Objection. Asked and answered;
14 exceeding the scope of the redirect.
15 THE COURT: Sustained.
16 Q. BY MR. MESEREAU: Was your memory of these
17 events better two weeks ago than it was on January
18 31st, 2004, Mr. Provencio?
19 A. No, it’s like riding a bike. You either
20 remember or you don’t remember. It’s in your head
21 or it’s not. Like I remember what people wear,
22 their shoes, if they smell. You know, weird things
23 like that.
In this excerpt, Provencio provides more testimony on his notes about the “Killers”:
24 Q. Now, let me get this straight, your comments
25 about your notes on February 1st, 2003.
26 A. Okay.
27 Q. You have a — you put down “February 1st,
28 2003,” on the pad, correct? 8940
1 A. Uh-huh. Straight up and down.
2 Q. You wrote a paragraph that goes how many
3 lines under that day?
4 A. Four. In — but the four — the four lines
5 are slanted to the right. So the “February 1st,
6 ‘03” slanted upward and it says, “Family-kids,” and
7 then there’s a couple lines and it slants to the
9 Q. Okay. And in that paragraph you say
10 Schaffel made a derogatory comment about Mexican
11 people, right?
12 A. That’s correct. And I’m Mexican.
13 Q. And you talk about “Mom flipping out” in
14 that first paragraph, correct?
15 A. Correct.
16 Q. Right?
17 A. Correct.
18 Q. In the next paragraph, you talk about a
19 family, right?
20 A. Well, yeah, but it’s written in different
21 writing again, so it’s —
22 Q. You say —
23 A. It’s a different paragraph. It’s a
24 different paragraph. I’m scribbling at a different
26 Q. You say “Who are these killers?” in that
27 paragraph, right?
28 A. Yes, uh-huh. Because the press are calling, 8941
1 and it’s after the 24th. So they were already
3 Q. And you wrote those words underneath the
4 date February 1st, 2003?
5 A. The first paragraph that you are referring
6 to —
7 Q. Yes.
8 A. — the first two lines —
9 Q. Yes.
10 A. — “Family-kids” is written under February
11 the 1st. There’s a paragraph there with different
12 kinds of handwriting, and then it shoots down to
13 another paragraph.
14 Q. Okay.
15 A. And that’s — that’s — you know, those
16 things are unrelated thoughts, and they’re just
17 scribbling thoughts.
18 Q. Sir, look at the last sentence that you
19 wrote —
20 A. Uh-huh.
21 Q. — on the first paragraph. Do you see that?
22 A. “I thought they used to be good people.”
23 Q. Right.
24 A. Uh-huh.
25 Q. Are you saying that that handwriting is
26 different from the handwriting in the next
28 A. It’s similar, but I know my handwriting 8942
1 enough to know when I write things, so —
2 Q. It’s the same style of handwriting, true?
3 MR. ZONEN: Objection; argumentative.
4 THE COURT: Overruled.
5 THE WITNESS: So answer?
6 THE COURT: Yeah.
7 THE WITNESS: Okay. I don’t believe so. I
8 think it’s different.
9 Q. BY MR. MESEREAU: How is it different?
10 A. Well, first of all, “family” is written
11 different. It’s a different paragraph. If you take
12 a look at the entire — if the jury could see the
13 entire thing, there’s many things on a piece of
14 paper, and it all looks like kind of a collision/
15 mess, because it’s not meant to be an exact
16 narrative. It’s meant for me to remember certain
17 things as they occurred.
Zonen questioned Provencio during the break, and then Mesereau continued to ask about the notes that he gave to police:
18 Q. During the break, the last break, did you
19 talk to Prosecutor Zonen about your testimony?
20 A. Yes. I asked about — I asked a couple
22 Q. Did he ask you any questions?
23 A. He wanted to know about the threatening
24 phone calls that I got.
25 Q. Did he tell you anything about what you had
26 testified to?
27 A. Yes, he asked me a question, “Did you tell
28 the truth?” And I told him, “Yes.” 8943
1 Q. Did he ask you anything — excuse me. Did
2 he tell you anything about what he was going to ask
3 you after the break?
4 A. No. He just asked me to clarify something
5 for him on the date.
6 Q. Did he discuss your police interview of
7 January 31st, 2004?
8 A. No.
9 Q. Isn’t it true that when you were interviewed
10 by the sheriffs on January 31st, 2004, you did not
11 hand over any notes?
12 A. I don’t know. Is that what it says? I’d
13 have to look at it, but I don’t — did I not hand
14 over notes at that time?
15 Q. You didn’t hand over any notes during your
16 police interview on January 31st, 2004.
17 A. When they came to my house? I sure did.
18 Q. When you were interviewed in the Los Angeles
19 area, you gave no notes, correct, to Sergeant Robel?
20 A. I did give him notes, because I even gave
21 him the address book. I remember that.
22 Q. So the report should reflect that, in your
23 mind, right?
24 A. It should, yeah.
25 Q. When did you discuss these notes you had
26 lost, the ones you took — you turned over a couple
27 weeks ago?
28 MR. ZONEN: Objection. Misstates the 8944
1 evidence, that they were lost.
2 THE COURT: Sustained.
3 Q. BY MR. MESEREAU: When did you discover the
4 notes that you had kept in storage all this time but
5 I believe you said you forgot about?
6 A. I had stuck them in a box. I thought they
7 were just lost. Like I said, I just stuck them in
9 Q. And you found them when?
10 A. Do you want me to look? I can tell you
11 exact dates.
12 Q. Approximately.
13 A. I have the receipt right here. Do you want
14 me to look?
15 Q. Sure.
16 A. I believe I brought the receipt.
18 Q. That’s this year?
19 A. Yes, this year.
Mesereau caught another discrepancy in Provencio’s story; in January 2004, he told police that Debbie Rowe was honest throughout her rebuttal interview, but under direct examination he told Zonen that Rowe was dishonest:
20 Q. Now, Prosecutor Zonen asked you a question
21 on redirect examination about whether you thought
22 Debbie Rowe was honest and sincere in her responses
23 during the interview, right?
24 A. Uh-huh.
25 Q. Did you discuss that issue with him during
26 the break?
27 A. No.
28 Q. But you admit that on January 31st, 2004, 8945
1 you told Sergeant Robel that Debbie Rowe was honest
2 and sincere in her responses, right?
3 A. Yes, some of it was. I think some of it
5 Q. You didn’t say “some of it.” You said she
6 was honest and sincere in her responses?
7 A. Well, it wasn’t recorded. I know what I
8 meant is that some of it was sincere.
9 Q. Okay.
10 A. She wanted her kids back, to see them.
11 Q. Just to clarify something in your notes of
12 February 1st, 2003, you say that, “Mom’s flipping
13 out about something,” correct?
14 A. Uh-huh. Yes.
15 Q. And you’re referring to Mrs. Arvizo,
17 A. Yes.
18 Q. Whom, at that point, you had never met,
20 A. No, just heard about.
21 Q. And that’s before the Bashir documentary
22 aired in the United States, correct?
23 A. And after the transcript was received on the
24 24th of January, correct.
25 Q. By you, right?
26 A. I received it. Marc received it.
27 Q. Do you agree that in every police interview
28 you’ve done, you’ve never mentioned the transcript 8946
1 of February 24?
2 A. I don’t know if I did or didn’t, but I know
3 when I got it, because I had the e-mail.
4 MR. MESEREAU: I have no further questions.
Under further redirect-examination, Zonen had a few more questions regarding how Provencio gave his notes too, and then quickly ended his questioning. Mesereau declined to further recross examine Provencio.
6 FURTHER REDIRECT EXAMINATION
7 BY MR. ZONEN:
8 Q. Do you remember to whom you turned over your
9 notes when the police arrived at your door?
10 A. Who did I turn them over to?
11 Q. Yes.
12 A. The police officers.
13 Q. Do you remember which one that was?
14 A. Steve Robel and Jeff Klapakis — Klapakis.
15 Q. Do you know whether it was Lieutenant
16 Klapakis or if it was Sergeant Robel?
17 A. Yes, it was those two.
18 Q. It was those two, all right.
19 A. Uh-huh.
20 Q. Was that on the first occasion that they
21 came to your door?
22 A. Yes.
23 Q. That was at the time they had a search
25 A. Correct.
26 Q. All right. The interview that took place
27 was at a — was there some level of interview that
28 was done at that time, at the time of the search 8947
2 A. Yeah, but it was like I’m outside, and it’s
3 cold, and I’m freaking out, there’s cops everywhere.
4 Q. Was there a follow-up interview that then
5 took place —
6 A. Oh, yeah.
7 Q. — soon thereafter?
8 A. Yep.
9 Q. Approximately how long after that was the
10 follow-up interview?
11 A. I don’t remember. I just remember it was in
12 the Calabasas area.
13 Q. Do you remember if it was longer than a week
14 or two after the initial arriv —
15 A. No, I think it was within the first two
16 weeks of that.
17 Q. Did you have additional notes to turn over
18 on that occasion?
19 A. Yeah, just stuff — you know, I mean, they
20 asked, “Where’s your computer?” You know, “Do you
21 have some notes?” And I said, “Yes, there’s some
22 right here.”
23 You know, “What other information” — “Can
24 we talk to you outside?” And I said, “That’s okay.”
25 And I agreed — you know, I mean, I was
26 scared, but I agreed to, because I just felt that
27 that was the right thing to do.
28 Q. Over the months that followed, did you take 8948
1 additional notes?
2 A. Yes.
3 Q. And did you turn those notes over
4 periodically to Detective Robel, Detective Sergeant
5 Robel or to Lieutenant Klapakis?
6 A. Yes.
7 MR. ZONEN: No further questions.
8 MR. MESEREAU: No further questions.
9 THE COURT: All right. Thank you. You may
10 step down.
11 THE WITNESS: Okay.
12 Where do I go?
13 THE COURT: Call your next witness.
14 MR. SNEDDON: Your Honor, at this time we
15 have some items to be moved into evidence.
16 (Off-the-record discussion held at counsel
Before resting their case, the prosecution requested that additional evidence should be admitted by the court:
18 MR. SNEDDON: Your Honor, we’re going to
19 start with a series of records that have been marked
20 as People’s 250 for identification purposes. It’s
21 one, two, three, four, five, six, seven — eight
22 pages, front and back. And I believe there’s a
23 stipulation that they may come into evidence.
24 MR. SANGER: Yes. So stipulated, Your
26 MR. SNEDDON: In addition to that, Your
27 Honor, there are a series of records.
28 THE COURT: Just a moment. 8949
1 MR. SNEDDON: I’m sorry? I guess I should
3 THE COURT: 250 through 258?
4 MR. SNEDDON: No, 250 only, Your Honor.
5 That’s all one document.
6 THE COURT: Those are pages 1 through 8?
7 MR. SANGER: For the record, I think we
8 should say they’re records pertaining to Xtra Jet
9 and Chris Tucker.
10 MR. SNEDDON: That’s correct.
11 THE COURT: All right. No objection, 250 is
13 MR. SNEDDON: And then there is a series of
14 records, Your Honor, from the Country Inn & Suites
15 which have been provided through the custodian of
16 records, and we’ve had a chance to look at them.
17 And we’re moving that People’s 219, 220, 221 and 222
18 be admitted into evidence. They’re all records
19 dealing with the Calabasas Inn.
20 MR. SANGER: No objection.
21 THE COURT: They’re admitted.
22 MR. SNEDDON: Your Honor, Mr. Provencio was
23 our last witness. However, there still remains the
24 outstanding issue of the documents that are before
25 the Court under consideration, and there are one
26 other set of records that just came in today that I
27 need to look at with counsel, but beyond that, we’d
28 be prepared to rest. 8950
1 And, oh, also we need to go over the
2 exhibits, because there are several exhibits that
3 you deferred ruling on, and we need to address
5 So there’s some miscellaneous items that
6 need to be done, but other than that, in terms of
7 live witnesses, we’re prepared to rest once all
8 these are cleared up.
9 THE COURT: You’re resting subject to those
11 MR. SNEDDON: I am, Your Honor.
12 THE COURT: The Court will make the following
13 rulings on the 400 series, which I’ve been briefed
14 by both sides on and listened to the evidence:
15 401 is admitted.
16 402 is excluded as cumulative and restricted
17 financial information.
18 405 is admitted. 409 is admitted. 410 is
19 admitted. 413 is admitted.
20 And 423 is admitted — no, excuse me, I’m
21 excluding 423.
22 So then that leaves what issues?
23 MR. SNEDDON: I’m sorry.
24 THE COURT: I’m just waiting for —
25 MR. SNEDDON: We’re consulting. We don’t….
26 (Off-the-record discussion held at counsel
28 MR. SNEDDON: Judge, there are — do you 8951
1 have your court exhibit sheet handy, Your Honor?
2 THE COURT: Yes.
3 MR. SNEDDON: There are several items that
4 have been marked for identification but have not yet
5 been admitted into evidence. We would be moving —
6 MR. SANGER: I didn’t know he was going to
7 do that. Can I have a moment to get my sheet out?
8 MR. SNEDDON: Go ahead.
9 THE COURT: I was just thinking we could let
10 the jury go a few minutes early, because we can go
11 through the admitting of them.
12 MR. SNEDDON: That’s fine, Your Honor.
13 That’s —
14 THE COURT: Let me speak to the jury for a
16 MR. SANGER: Excuse me. Just for
17 planning — I’m very sorry to interrupt, but there
18 will be a motion when the People rest. For
20 THE COURT: I understand that.
21 I wanted to tell the jury that next Tuesday,
22 the 10th, will be a half day. So we’ll stop at
23 11:30 on that day.
24 And then what you’re suggesting, I think, is
25 that they should come in a little later in the
26 morning, because you’re going to make a motion.
27 They’re really resting right now, and I don’t think
28 you have time to make the motion this afternoon. 8952
1 MR. SANGER: I — I don’t think so. We also
2 have a written brief which we did not, and should
3 not, file until they rest. So I have that.
4 THE COURT: Right.
5 MR. SANGER: They may want to take a look at
6 it, so it may be more efficient to do it tomorrow
8 THE COURT: Yeah.
9 (To the jury) So I think what we’ll do is,
10 court will start at the regular time and I’ll hear
11 the motion, and then I’ll have you come in at —
12 we’ll start with jury at 10:00. I don’t want you
13 frivolously wasting that time of your day.
14 All right. I’ll see you tomorrow morning.
16 (The following proceedings were held in
17 open court outside the presence and hearing of the
After the jury was dismissed, Judge Melville heard additional arguments from the prosecution and defense:
20 THE COURT: All right. Go ahead, Counsel.
21 MR. SNEDDON: Judge, may I inquire of the
22 Court for just a moment before we start the process?
23 THE COURT: Yes.
24 MR. SNEDDON: With regard to the 418 that
25 you excluded, was that on the basis of a lack of
26 foundation or for some other reason? That’s the
28 MR. AUCHINCLOSS: 418, page three. 8953
1 THE CLERK: You didn’t mention 418.
2 THE COURT: I didn’t rule on that. The
3 rulings were on 401, 402, 405, 409, 410, 413 and
4 423, which are the documents you took testimony on
6 MR. AUCHINCLOSS: Okay.
7 THE COURT: That’s what I was keeping track
8 of today.
9 MR. AUCHINCLOSS: Okay.
10 THE COURT: In your briefs, you had covered
11 other exhibits.
12 MR. SNEDDON: And we’ll —
13 THE COURT: But they were not addressed
14 today, so I didn’t rule on them today.
15 MR. SNEDDON: Okay. I just was seeking
16 clarification. And will there be an opportunity to
17 address that, or are you going to rule on those
18 without argument?
19 THE COURT: Well, if you’re offering
20 something, you can offer it. I mean, that’s what
21 you’re doing now, is it not, offering the rest of
22 your exhibits?
23 MR. SNEDDON: Yes, sir. The ones that
24 haven’t been previously admitted.
25 THE COURT: Right. So just go ahead and
26 offer them, and we’ll see if there’s any —
27 MR. SNEDDON: I’ll do the ones that I know
28 about, and I’ll have Mr. Auchincloss do the 400 8954
1 series, if that’s okay with the Court.
2 The one I’d like to begin with is 294, which
3 for the Court’s recollection, it was a document that
4 was found inside of the briefcase that contained
5 several items of adult materials and was offered for
6 indicia of ownership and knowledge of the materials
7 inside. It was identified by the officer and
8 contains the initials of the defendant on the
9 document. So we’re moving that 294 be admitted.
10 THE COURT: All right. It’s admitted.
11 MR. SANGER: Your Honor, I at this point —
12 THE COURT: You need to speak into the
14 MR. SANGER: I just turned it on. I’m
16 I was going to say, at this point, unless
17 the Court is absolutely clear, I don’t have an
18 absolute clear recollection, without looking at that
19 particular exhibit, and I — I have notes on some of
20 the items.
21 THE BAILIFF: No one can hear you.
22 MR. SANGER: Can’t hear?
23 THE BAILIFF: No.
24 MR. SANGER: It’s on. I’ve just got to bend
25 over. What happened is the cord got shorter.
26 All right. All I’m saying is, if the Court
27 has a clear recollection and is prepared to rule
28 without hearing from the defense, I understand that, 8955
1 but if not, I’d like to have a chance to look at
2 that exhibit.
3 THE COURT: I’m going to admit it. And if,
4 for some reason, you want to readdress that after
5 you look — find it — I think I do have a clear
6 recollection. But then I thought the break was at
7 quarter to 1:00.
8 MR. SANGER: Okay. Thank you.
9 MR. SNEDDON: The next item, Your Honor, is
10 349, which is the orange bottle that you took under
11 submission and we offered as demonstrative evidence.
12 And I believe there’s case law that —
13 THE COURT: There is. That’s admitted.
14 That’s clear to the jury that that’s not the — it
15 just looks like the bottle. It’s not the bottle.
16 MR. SNEDDON: Right.
17 MR. SANGER: We object there was a lack of
18 foundation, and I believe we did object, but if we
19 didn’t, I —
20 THE COURT: You did object, and that’s why I
21 took it under submission. And there is a couple of
22 cases on it, one I recall about a fire can that
23 carried gasoline to start a fire, and they lost the
24 can, and they brought a can just like it in, and
25 that was just to show the jury what it looked like,
26 and that’s admissible.
27 MR. SNEDDON: The next item, Your Honor, is
28 625, which is the series of letters between Mr. 8956
1 Geragos and Mr. Dickerman.
2 THE COURT: All right. They’re admitted.
3 MR. SNEDDON: We’ll withdraw — I mean 630
4 we’re not offering, because that has not been
6 THE COURT: Yes.
7 MR. SNEDDON: With regard to the series of
8 exhibits in 823 through 829, I believe we laid the
9 foundation when we put Detective Alvarez and Bonner
10 on to establish the foundation for these particular
11 exhibits that they’re the ones from which the DVDs
12 were made from, so — and seized by Detective
13 Caldwell, so we would move that they be admitted.
14 THE COURT: I believe the foundation was
15 laid. Is there any objection to that?
16 MR. SANGER: I just want to make sure that
17 we don’t have one in there — I understand that
18 there’s been a foundation for most of them, but I’m
19 not — I’m not sure that all of them have been —
20 there’s an independent relevance foundation laid.
21 In other words, there’s been a seizure foundation
22 laid, that they were obtained and in the offices of
23 Brad Miller, but there’s nothing that — as I sit
24 here, I don’t know which number, but there’s nothing
25 that lays the foundation for the relevance in this
27 MR. SNEDDON: Judge, they’re the
28 surveillance tapes. 8957
1 THE COURT: They were all played to the jury.
2 They were your surveillance tapes.
3 MR. SNEDDON: That’s why we thought they
4 were in evidence.
5 MR. SANGER: Were they all played?
6 MR. ZONEN: All were except 829. 829 is a
7 duplicate of another one. It’s the micro-mini.
8 They made a copy of the micro-mini. We then played
9 it off of the more conventional form, but 829, it is
10 the micro-mini that was seized, and then the one we
11 played was the one that was duplicated onto to be
12 able to play it.
13 MR. SANGER: I didn’t understand that, quite
15 THE COURT: They made it — they made one
16 from this exhibit, so he didn’t show this exhibit,
17 but he showed the copy they made from the exhibit.
18 MR. ZONEN: And the testimony was that
19 they’re identical.
20 MR. SANGER: Okay. I think they showed the
21 copies. They showed copies of all of these. They
22 didn’t show any VHS tapes. So that’s not the issue.
23 I believe there were two tapes that were similar,
24 and one of them was not shown and one of them was
26 MR. ZONEN: That’s 829.
27 MR. SANGER: So 829 was shown and 828 was
28 not? 8958
1 MR. ZONEN: 829 is the mini. That’s the one
2 that was not shown.
3 MR. SNEDDON: Excuse me. The DVD copy of
4 829 was shown, so this is the foundation to show
5 that this is the original.
6 MR. ZONEN: Yes.
7 MR. SNEDDON: And this was authenticated by
8 the officer.
9 THE COURT: Well, in terms of what the jury
10 should get, 828 has been authenticated. We’ll just
11 put in 828. We’ll leave out 829. It’s in as an
12 exhibit and it’s part of the —
13 MR. SNEDDON: Record.
14 THE COURT: — record.
15 MR. SNEDDON: That’s fine. That’s perfectly
16 acceptable to us, Your Honor.
17 MR. SANGER: There you go.
18 MR. ZONEN: I don’t believe that’s the
19 duplicate of 828. I believe it’s actually the
20 duplicate of 825.
21 THE COURT: Okay. Okay. Same ruling.
22 MR. SANGER: Your Honor, since everybody’s
23 still talking and we’ve only got a couple minutes, I
24 understand the Court’s ruling is that you’re not
25 going to let in both tapes of the same thing.
26 THE COURT: Right.
27 MR. SANGER: And with that ruling in mind,
28 if there’s some dispute, can we take it up later? 8959
1 THE COURT: Absolutely.
2 MR. SANGER: Okay. Thank you.
3 MR. SNEDDON: I believe, except for the 400
4 series, that covers all the issues, except for the
5 one that I mentioned to the Court about having to
6 check with the SDT records that just came in with
7 United Airlines. Other than that, I think we’re —
8 oh, wait a minute. That’s right.
9 I’m sorry, Your Honor, there are three
10 photographs —
11 THE COURT: Okay. What I’m going to do is —
12 MR. SNEDDON: Yeah. 45, 46 and 47 should be
13 admitted, Your Honor.
14 THE COURT: All right. Any objection?
15 MR. SANGER: No objection, Your Honor.
16 MR. AUCHINCLOSS: Would you like me to
17 address the 400 series at this time, Your Honor?
18 THE COURT: Well, no. Just tell me what
19 other ones you want rulings on that I haven’t ruled
21 MR. AUCHINCLOSS: I believe at this point
22 you’ve excluded 402; is that correct?
23 THE COURT: Yes.
24 MR. AUCHINCLOSS: Okay. We would ask that
25 the remainder of the 400 series —
26 THE COURT: And 423.
27 MR. AUCHINCLOSS: And 423. Very well. We’d
28 ask that the remainder of the 400 series be 8960
1 admitted, with the exception of — the exceptions of
2 414 and 416.
3 MR. SANGER: When counsel says “the
4 exception,” Your Honor, does that mean they’re
6 MR. AUCHINCLOSS: Yes.
7 THE COURT: I think they’re not offering
9 THE CLERK: There’s numerous in the 400
10 series that haven’t even been identified.
11 THE COURT: The only ones I’m going to
12 consider are the ones that have been identified in
13 court, which are the 400 series up to 424. After
14 that, 425 through — just so you all know, 425
15 through 449 haven’t been identified; 460 through
16 469. But I think you were just talking about the
17 400 series ending with 423, because that’s what your
18 briefs covered.
19 MR. AUCHINCLOSS: We have some additional
20 exhibits under the 400 series that — let me just
21 have a moment to look at the notebook.
22 MR. SANGER: While they’re looking, Your
23 Honor, you went so quickly through the numbers, when
24 I tried to write them down, I don’t think I got them
26 402 was excluded. 401 was admitted?
27 THE COURT: 401 was admitted.
28 MR. SANGER: Okay. 8961
1 THE COURT: 402 was excluded. 405 was
2 admitted. 409 was admitted. 410 was admitted. 413
3 was admitted. And 423 was excluded.
4 MR. AUCHINCLOSS: And if your question was
5 are we offering at this time, concerning the 400
6 series, only up through 423, which, as you said, has
7 been excluded, that is correct.
8 THE COURT: Well, then I can make rulings on
9 the others.
10 MR. AUCHINCLOSS: You may. But the one
11 thing I’d request, Your Honor, if we have a dispute
12 about exhibits that can be remedied by additional
13 foundation, we’d just ask that the Court allow us to
14 reopen to handle that evidentiary issue, if
16 MR. SANGER: Well, Your Honor, we had filed
17 a written brief, and I believe we objected to all of
19 THE COURT: You did.
20 MR. SANGER: Okay. So the Court has ruled
21 on some, but not all of them.
22 THE COURT: The only ones I ruled on were the
23 ones that they laid foundation on today.
24 MR. SANGER: There you go. Okay. Now I
25 understand. We did object to everything else, and I
26 don’t believe there is a foundation —
27 THE COURT: Well, that’s true.
28 MR. SANGER: — as to the remaining ones. 8962
1 THE COURT: There are foundation problems as
2 to other documents, there’s no question.
3 MR. SANGER: Yes.
4 THE COURT: Other than these documents that
5 are hanging out here, what I would like to have us
6 do is to have you rest, subject to my rulings on
7 that, have you serve your 1118 motion, and be
8 prepared to argue that motion tomorrow morning, both
9 of you. And I’ll make rulings on the other
10 documents in the 400 series that have been
11 identified before you make your argument.
12 MR. AUCHINCLOSS: Okay. My request is just
13 because, as you know, of the timing of the admission
14 of these documents, we’ve held off on them, but
15 normally during the course of the presentation of
16 our case, we would have an opportunity to lay
17 additional foundation if there was a foundational
18 issue on any of the documents. And there may be an
19 issue that could be remedied fairly quickly, so I’d
20 just make that representation to the Court, that
21 that may be a request, depending upon the outcome.
22 THE COURT: Okay.
23 MR. SANGER: Well, Your Honor, just so I’m
24 clear, I would like to be able to file — I’d like
25 to be able to serve and file the motion, and I think
26 the Court has asked us to do that. My concern —
27 I’m sitting because I’m worried about
28 getting too far away from that, so let me stand here. 8963
1 My concern is that these are documents
2 obviously — let’s put it this way. Obviously,
3 Count 1 is going to be the subject — significant
4 subject of our motion.
5 THE COURT: Right.
6 MR. SANGER: And these are documents that,
7 if they intend to reopen and call some more
8 witnesses, we are giving them a road map to our
9 objections, and they could then say, “Well, we said
10 we’re going to reopen,” so, you know, call in a
11 bunch of witnesses.
12 So I don’t want that to happen, and Mr.
13 Auchincloss was very vague in what he’s requesting,
14 so I’m going to object to what he’s requesting.
15 Either they rest or they don’t rest.
16 I understand the Court can say, “I’ll take
17 under submission whether these documents come in or
18 not.” That’s not a problem. I just don’t want to
19 file this and have them bring in another witness, or
20 two, or three.
21 THE COURT: Well, I am taking under
22 submission whether or not any of the other 400
23 series would be admissible under the present state
24 of the record. They’re resting subject to that.
25 They’ve said they may wish to reopen. I’m not
26 ruling on that issue. So as of right now, you have
27 a record. You have them resting, and all that’s
28 left is my ruling. 8964
1 MR. SANGER: Based on that — Your Honor,
2 thank you for clarifying that. Based on that, I
3 will serve in open court a copy of a Motion for
4 Judgment of Acquittal Under 1118.1, and I’ll file
5 the original and provide two copies to the clerk.
6 And we’ll expect to argue that tomorrow, if that’s
7 all right.
8 THE COURT: Right.
9 All right. Then court’s in recess. I’ll see
10 you tomorrow at 8:30.
11 MR. SANGER: Thank you, Your Honor.
12 Oh, Your Honor? Not to take time, but there
13 is one other motion that was still pending.
14 THE COURT: I’ll rule on that in the
15 morning. I haven’t had time — I got that late this
16 morning. I haven’t had time to — I read it.
17 That’s all I’ve done with it, so —
18 MR. SANGER: Okay.
19 THE COURT: That’s the motion to dismiss; the
21 MR. SANGER: The mistrial and the Griffin/
23 THE COURT: I’ll rule on that before you
24 argue in the morning.
25 MR. SANGER: Thank you, Your Honor.
26 THE COURT: Thank you.
27 (The proceedings adjourned at 2:40 p.m.)