Sean P. Diddy Combs at the 2017 Costume Institute Benefit Gala celebrating the opening of the exhibition “Rei Kawakubo/Comme des Garcons: Art Of The In-Between” held on May 1, 2017 at The Metropolitan Museum of Art in New York City (File Photo by: zz/ESBP/STAR MAX/IPx 2017 5/1/17).
Attorneys for hip-hop impresario Sean “Diddy” Combs told a federal judge in lower Manhattan on Tuesday they had collected enough evidence to allege a violation of their client’s constitutional rights.
The dustup that led to the court calling an emergency hearing was an October sweep of the defendant’s jail cell at the Metropolitan Detention Center in the Sunset Park neighborhood of Brooklyn.
Several different law enforcement agencies took part in the raid. And, to hear the defense tell it, investigators repeatedly crossed the line by photographing several pages of Combs’ notebooks. This snooping has allegedly led to the prosecution becoming “privy to defendant’s and defense counsel’s trial strategy, including areas of expert testimony, witness strategy, and other confidential matters” in violation of the attorney-client privilege.
The judge overseeing the case appeared aghast at the incident.
“What happened here?” U.S. District Judge Arun Subramanian asked the U.S. Attorney’s Office for the Southern District of New York, according to a courtroom report by Inner City Press. “Why were they taking photos of Mr. Combs’ notebooks?”
The government’s attorney said the investigator in question was not a member of the prosecution team, but rather, a Bureau of Prisons official focused on dealing with violations of jail rules and would not have been there otherwise. The prosecutor went on to allege that Combs, in fact, had been violating said rules and had been caught by the BOP investigator monitoring his communications.
“Is this a Fourth Amendment violation?” the judge asked the government.
The prosecutor replied that the government had no prior knowledge the BOP investigator would be part of the sweep and insisted they only learned about the photos of the notebooks after the sweep.
Combs attorneys say this is a toothpaste-out-of-the-tube situation.
“According to the Government, these nineteen pages were given to, and are in the possession of, the trial team, which has already started using these privileged materials to its advantage, including its opposition to bail,” the defense’s Tuesday filing reads.
The defense letter motion catalogs the extent of the breach:
Based on the materials provided as Exhibit A, it appears a government investigator (“Investigator 1”) took photographs of several different items. These include (i) intact pages from two different legal pads, (ii) pages of an address book, (iii) a ripped- out, folded-over page of a third legal pad, (iv) a ripped-out page of another legal pad and (v) a ripped-out page of yet a different legal pad, as will be described below…
And, in a footnote, the defense objects to the notion that one mere “notebook” was rifled through — describing the documents as having been collected from “a number of legal pads.”
The government conceded that at least some of those materials were legal in nature — but argued that they were not stored in a way that immediately identified them as legal, Inner City News reports.
During the hearing, lead defense attorney Marc Agnifilo said he and his client were not even sure about the extent of the breach.
The government pushed back — saying they had provided the defense with even more than the 19 pages of legal-related information.
The judge did not seem convinced.
“Is it standard procedure to photograph notebooks, rather than take them so it could be known they were taken?” Subramanian asked.
To which Assistant U.S. Attorney Christy Slavik replied: “I don’t know.”
The court was also concerned about how the government learned about the existence of the privileged materials.
The prosecutor argued that a filter team had provided them after collecting them as part of a “covert” investigation. When asked to explain why the government still needed a filter team to deal with discovery since charges had already been brought, the prosecutor said the grand jury investigation was ongoing — holding out the possibility of additional charges in the case.
During the hearing, the court seemed amenable to at least some of the materials being made unavailable for government use.
Combs’ attorneys argued the sweep itself was a pretext — and asked the judge to grant them surveillance footage of the raid itself.
The defense told the court they would likely consider filing a motion to dismiss the indictment or a motion to have the present prosecution team removed from the case.
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