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What's up everyone and welcome to another episode of the Diddy Diaries.
In this episode we're going to continue on with the court documents and we're going
to take a look at Diddy's motion in Lemanay to exclude video footage related to the March
5th 2016 incident at Intercontinental or in the alternative for a hearing.
Case number 124-CR-00542-AS United States of America vs. Hong Kong's
Introduction.
There is no longer any dispute that CNN footage from the March 5th 2016 at the Intercontinental
Hotel offered by the government at three separate bell hearings is wholly inaccurate,
having been altered, manipulated, sped up, and edited to be out of sequence.
As indicated below, CNN paid for footage, copied that footage in unknown ways, presented
that footage out of order, and destroyed the original.
Accordingly all the footage from CNN is inaccurate and inadmissible.
As for the two items of footage filmed by an iPhone 6, those pieces of footage are inaccurate
and inadmissible as well for the reasons set out below.
As a result pursuant to federal rule of evidence 901, 102 and 403, Mr. Colm seeks to exclude
all available video files related to an incident from March 5th 2016 in the Intercontinental
Hotel.
Those exhibits include an edited manipulated version of hotel surveillance footage, B,
two cell phone video recordings of surveillance, video footage taken by redacted, and C, and
four video files provided by CNN in response to a defense subpoena.
The need for a hearing.
For deciding this motion, we ask that the court hold a pre-trial hearing to allow Mr.
Colm's to present testimony and video evidence from a forensic video analyst, Conor McCourt,
so that the court can better understand the ways in which each of the available videos
are unreliable and not a fair and accurate reflection of the actions depicted.
The arguments presented herein and in the attached affidavit of Conor McCourt are best
illustrated by the testimony of Mr. McCourt, combined with the visual demonstration of
the inaccuracies of the challenge video evidence.
We understand and appreciate that the court may be disinclined to devote time and resources
to a hearing at this juncture, but we are constrained to ask for that because the admission
of any of these inaccurate unreliable video files would unfairly confuse and mislead the
jury at Mr. Colm's expense and because their admission would, infinitely, be more
prejudicial than probative given the unreliability.
In an effort to avoid making this request, undersign councils spent hours with Mr. McCourt
trying to understand whether we could create a video file that would be an accurate portrayal
of what occurred on March 5, 2016.
Unfortunately, as explained below and in the accompanying affidavit of Conor McCourt,
as each of the available video files has inherent reliability problems, that is simply
not possible.
If a picture is worth a thousand words, a video is worth a number well over the court's
word limit.
Because our issues with the video footage relates to how the footage looks, a hearing
where Mr. McCourt can display the footage, slow it down, display it alongside other footage,
and point out the inaccuracies that one can see will, we believe, be more helpful to
the court than merely writing about these things.
For these and forgoing reasons, we ask the court to exclude the government's proposed
video evidence from Mr. Colm's trial, or in the alternative to permit Mr. Colm's to
present evidence at a pre-trial hearing regarding the unreliability of the government's proposed
video evidence before the court decides this motion.
Background
On May 17, 2024, CNN published a video, the CNN compilation, purporting to show a March
2016 incident between Mr. Colm's and redacted, in the intercontinental hotel based on surveillance
footage CNN purchased from redacted, the video immediately and dramatically turned the
tide of public opinion against Mr. Colm's.
But on bonones to the viewing public, the video was heavily and deceptively edited by
CNN.
CNN turned approximately ten and a half minutes of footage into a forty-eight second
out of order clip that ended with Colm's appearing to drag redacted to a hotel room.
See declaration of E. Estavo, Example A.
The edited version painted Mr. Colm's in the worst possible light.
The government relied on the CNN compilation as evidence and support of its motion for
detention in multiple bell proceedings in this case in September, October, and November
of 2024.
In fact, the holy and accurate footage was the only exhibit the government used to support
detaining Mr. Colm's in September of 2024.
The government failed to disclose that the footage had been manipulated.
After conferring with the government multiple times on the topic of the CNN compilation,
on November 13, 2024, the government produced two additional iPhone videos, iPhone videos
that were in the possession of redacted, also partially depicting the incident.
The Replyant Support of Mr. Colm's renewed motion for bell at 8 ECF number 80, Declaration
of Tenny Garagos.
The iPhone video appears to be recordings of surveillance footage of the hotel incident,
i.e.
re-recordings, but they differ materially from the CNN compilation.
The cell phone footage records scenes from the incident that were not in the CNN compilation,
Declaration of A. Estavo.
Upon receiving the iPhone videos, and noting the myriad ways they differ from CNN
compilation, Defense Counsel retained Conor McCourt, a career law enforcement officer,
with years of experience performing forensic analysis of videos to compare the iPhone videos
to the CNN compilation.
See letter from Mark Agnafilo November 21, 2024, at 1 ECF number 82, Mr. McCourt confirmed
what the government has since been forced to admit that none of the government videos
are the original, raw surveillance footage of the hotel incident, that the CNN compilation
was manipulated, either through copying or conversion, and that it lacks any metadata
to confirm the manner in which it was manipulated.
In an effort to obtain the original footage, Colm's and a Brady request to the government
and a subpoena to CNN, Declaration of A. Estavo, Example F, i.e. 10, ultimately as a result
of the subpoena, Defense Counsel obtained four additional videos, CNN's compilation
and three videos with footage obtained by CNN from three single cameras in the intercontinental
hotel.
I.D. at Example 1, the CNN video files.
The CNN video files counsel learned from CNN's counsel were not the original files that CNN
received from its source, redacted. Instead, CNN paid their source for the CNN video files,
apparently copied those video files, and subsequently destroyed the original files they received.
The government later confirmed the counsel in a letter dated January 31, 2025, that redacted
defense investigation, has been unable to identify the CNN employee who received the surveillance
footage from the intercontinental hotel, the employee who converted and manipulated that
footage, or the employee who destroyed the footage.
CNN, for their part, has been publicly reporting on an ongoing federal sex trafficking
investigation for months prior to their knowing destruction of the evidence.
To defense counsel's knowledge, the government has not investigated CNN, nor redacted for
destroying evidence related to this case during the pendency of the investigation,
in short, the only available versions present in an accurate view of the incident.
At the last hearing where the video files were addressed, the court suggested that a possible
solution would be to slow it down and put it in the right sequence or provide any other context
based on the materials. We have uncovered, based on our experts analysis, so that when the video
went before the jury, it would be an accurate portrayal. After extensive discussions with Mr. McCourt,
however, there are several reasons why all available video files are inaccurate and unreliable,
and cannot be modified to be accurate. First, the CNN videos are one significantly sped up,
have a David of Mr. McCourt, two, do not accurately represent human movement as a result of being
converted from one file type to another, three, and accurately display timestamp seconds,
including jumping back in time, thereby misleading the viewer about the timing of events,
and four, are missing a considerable amount of footage.
Second, the iPhone videos distort the events depicted in other ways, one the Aspect Ratio
and the iPhone videos differs from the CNN video. Such that Mr. Combs appears to be stockier
and shorter than he appears in the CNN video, causing Mr. Combs to appear more domineering.
Two, they inaccurately display timestamp seconds when depicted, 19 through 20, 22 and 23,
misleading the viewer about the timing of the events. Three, they do not show the timestamps in
the majority of the videos, and four, they do not depict the entire incident, idea 26.
In other words, the iPhone videos reflect what the person holding the video phone camera
focused on when watching the footage, at times the iPhone video zoom in on details,
like a particular person's shoes, cutting out portions of the event depicted in the CNN videos.
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Further, the iPhone videos were created by using a handheld camera to film a static image.
The iPhone videos contain double images and blurred images,
distorted artifacts, that are the result of amateur rerecording.
Thus, neither the CNN video nor the iPhone video accurately depict the incident.
The government alleges that the iPhone videos accurately depict the way the raw
hotel surveillance footage of the hotel incident appeared on March 5, 2016, when redacted
recorded the footage. In the iPhone videos, but the government's claim rests entirely on redacted
words which is contradicted by forensic analysis. There is simply no way to obtain or create
an accurate version, the only version that exists are inaccurate and highly prejudicial.
All right, we're going to wrap up right here and in the next episode we're going to pick up
where we left off and that's what the argument. All of the information that goes with this
episode can be found in the description box. What's up everyone and welcome to another
episode of the Diddy Diaries. In this episode we're diving right back in to Diddy's motion,
trying to get that CNN video footage of him beating the crap out of Cassie tossed.
Argument. The CNN and iPhone videos must be excluded because the government cannot provide
sufficient evidence to authenticate the CNN and iPhone videos. The CNN video and iPhone video
must be excluded because the government cannot provide sufficient evidence of their authenticity
as required by federal rule of evidence 901 because recorded evidence predictably has a dramatic
impact on the jury. The second circuit rightfully holds the government to a higher standard
to establish that video recordings as opposed to other kinds of evidence that are less susceptible
to tampering and manipulation are authentic before allowing their admission at trial.
See United States vs. Null. Second circuit 1967. The government cannot meet that burden here.
Relevant evidence must be authenticated before it can be admitted. See fed our evidence 901
US vs. Vainer 2014 second circuit. The requirement of authentication is a condition precedent to
admitting evidence. The burden rests on the proponent of evidence to produce evidence sufficient
to support a finding that the item is what the proponent claims it is that our evidence 901A.
Though some items of evidence are self-authenticating meaning they require no extrinsic evidence of
authenticity in order to be admitted, video recordings are not self-authenticating. See fed our
evidence 902. Exclusion of video recordings from self-authentication is entirely justified
in view of the potential for unreliable or even seriously misleading material being presented in
this format. The type of evidence the government hopes to present to the jury here. Leo vs. Long
Island. SDNY 2015. The burden on the government's high. Although the requirements under rule 901
are typically satisfied if sufficient proof has been introduced so that a reasonable juror could
find in favor of authenticity or identification. Courts in this circuit have articulated a higher
standard for authenticating records. Because recordings are susceptible to alteration as the videos
were here and often have a persuasive sometimes of dramatic impact on a jury. As these videos no
doubt will, it is incumbent on the government to produce clear and convincing evidence of authenticity
and accuracy as a foundation for the admission of recordings. US vs. Null 2nd Circuit 1967.
Quoting United States vs. Matten 2nd Circuit 1939. Indeed, 2nd Circuit law requires that the
government produce clear and convincing evidence of authenticity and accuracy as a foundation for
the admission of video recordings. According to United States vs. Ida, 1997 WL122753. SDNY March 18, 1997.
The government is not offered any competent evidence through which it could authenticate these
videos. In the normal course, evidence may be authenticated through such means as testimony of
a witness with a personal knowledge, evidence that the preferred exhibit has distinctive characteristics,
demonstrating genuineness, and evidence that the preferred exhibit is the result of a process or
system that produces accurate results and showing that it produces an accurate result.
But this is not the normal course and these methods do not apply here. Rather in the absence of
the testimony by the editor or someone else with personal knowledge to determine how the videos
had been edited, admitting the videos here would be grossly unfair and potentially highly misleading.
Though the 2nd Circuit is not published to test with factors for courts in this district to apply
with respect to video evidence where a foundation is called into question. In United States vs.
Kimball, the 8th Circuit set forth a number of factors for courts to consider when deciding whether to
admit recorded evidence. We consider whether a party is established that one the device was
capable of recording. Two, the operator of the recording device was competent. Three, the
recording is authentic and correct. Four, the recording has not been changed. Five, the recording
has been preserved. Six, any speakers in the recording are identified in seven. The conversation
was voluntary. To be able to identify a speaker in a recording, a witness only needs to
have heard the voice of the alleged speaker at any time. All applicable factors weigh against
admission here. With respect to the first factor, we have no information about the device that was
used to make the CNN videos because the original videos were converted from an unknown file type
to another obscuring critical metadata about the original device. As to the iPhone videos,
we know only that the device used to make them was an iPhone 6 that the defense has not had the
chance to examine. Though we can reasonably infer that the devices were capable of producing some
kind of recording, the government has not profored any evidence, which demonstrates that either
device was capable of reliably and continuously recording events. With respect to the second
factor, whether the operator of the recording device was competent, the government has not
profored any evidence whatsoever regarding the competence of the operator of the device that
created the original video. Redacted, the government is likewise profored no evidence as to the
competence of the operator of the iPhone video. Regarding the third factor that the recording
is authentic and correct, this cannot be established for any of the available videos. As explained,
all the video files are distorted, likewise the fourth factor that the recording has not been
changed cannot be met for any of the video files. The iPhone videos distort the depicted subjects
and fell to fully depict the events captured by the original videos. The CNN video files on the
other hand are changed in speed, in frames, and in the way they depict the subject's movement
among other things. The fifth factor the recording has been preserved strongly ways in favor,
excluding the available videos. Through no fault of the defense who employed every investigative
technique at its disposal to obtain the original video, the original video has already been
destroyed, both by redacted and by CNN, and the government is refused to use its power to
investigate the obstruction. Section 2 The available video files are not the
originals. The government did not make a competent effort to locate the originals, and therefore
the files must be excluded under the best evidence rule. As discussed above, and in the next
declaration of Anna Estavio, the affidavit of Conor McCourt, none of the files are original despite
the defense good faith efforts to investigate and locate the original files. Here, by the time
that council was able to subpoena CNN's video files after the government's December 31st, 2024
deadline, the redacted and CNN had already destroyed the original video. Redacted to find out one,
whether the original video still exists, two, how this individual removed files from the hotel
server in order to retain them on a hard drive, and three, whether this individual knew of the
ongoing federal investigation into Mr. Colms. The government has not even taken possession of
the hard drive that the footage was on to see if it could recover the deleted files.
The same is true of the government's failure to investigate CNN. The government's unwillingness
to take any of these logical steps to obtain reliable video evidence and its decision to rely on
inaccurate, unreliable duplicates, calls into question its motives. But more importantly,
the government's failure to investigate means it cannot satisfy the best evidence rule,
and its inaccurate duplicates should not be admitted. Authentication requires additional safeguards
to ensure validity, where the preferred exhibit is a duplicate of evidence rather than the original
item, or narrowly the federal rules of evidence require that the proponent of an item of evidence
introduce the original evidence, rather than a copy of it, see FedR evidence 2002.
An original recording is required to prove its content unless these rules of federal statute
provides otherwise. The requirement of the original known as the best evidence rule
may give way when the proponent of a duplicate is admissible to the same extent as the original,
unless a genuine question is raised about the originals, authenticity, or the circumstances
make it unfair to admit the duplicate. Noting a duplicate is admissible where fraud or
imposition reasonably is not to be feared. An electronic re-recording and electronic recording
of a recording is a duplicate under rule 1014, United States vs. Averis 404F.3D 2005.
Here a genuine question has been raised regarding authenticity, and it would be unfair to admit
the government's proper duplicates. Thus, the government only means of admitting the evidence
is federal rule of evidence 104, which permits the use of a duplicate if all the originals
are lost or destroyed, and not by the proponent acting in bad faith, or the original cannot be
obtained by any available judicial process. The government's conduct negates admissibility
under either a prong. It is repeatedly refused to investigate as not questioned key witnesses
regarding the original recordings, and refuses to use available judicial process,
even to confirm whether the originals still exist.
Hoping that the court will permit it to use far more inflammatory evidence that will unfairly
bolster its arguments, and prejudice calms case. Indeed, at the time, CNN destroyed the original
footage, it knew about and widely reported on the government's investigation into calms,
yet destroyed the evidence anyway. The government has no basis to claim the originals are lost or
destroyed because it has not attempted to find out. It has therefore ratified CNN's bad faith,
and it should not be rewarded. None of the available files are originals, none of the
available files are reliable duplicates, and there is no amount of further editing that can be done
to make any of the video files acceptable secondary evidence. To the contrary, the alterations include
taking events out of sequence, speeding events up, removing frames, and adding frames, which present
grave reliability and accuracy concerns. The facts here thus counsels strongly in favor of
exercising discretion to exclude the government's unreliable and accurate recordings under the
federal rules of evidence 901, 2002 and 2004, particularly in the face of the government's
refusal to use its power of process to investigate the destruction of the original video.
The government has not even tried to ensure the accuracy of the proper evidence
and the evidence should be excluded. 3. The CNN and iPhone video should be excluded under
federal rule of evidence 403 because the dangers of misleading and confusing the jury and unfair
prejudice substantially outweigh their probative value. The available video files the iPhone 6 video
and CNN's subpoena response videos must be excluded as these altered videos will undoubtedly
have a misleading and prejudicial but highly persuasive and dramatic impact on the jury.
The court should therefore exclude the videos under federal rule of evidence 403.
Though the government will no doubt argue that tampering affects the weight of recorded evidence
and not its admissibility, here that is not the case. The manipulation of the videos was
specifically designed to inflame the passions of CNN's viewing audience, and that is what the
government is hoping to leverage in this case. The videos are sped up to make the violence look
more violent, the sequence is recorded to leave the viewer with the impression that the woman
has been dragged back to the hotel room. And the clips delete footage that provides important
context making clear that the events are not as horrific as the government will suggest.
As the second circuit has observed recorded evidence is likely to have a strong impression
upon a jury, and here that impression will come in the form of shock and awe, United States
vs. Pointes, second circuit 1977. The government has a myriad, other less prejudicial ways of
presenting evidence concerning the events allegedly depicted in the videos it wishes to admit.
The government already intends to present testimony from one or more persons depicted in the videos.
Here where the available video files are not genuine, not accurate, and not originals,
it's impossible to make the available video files accurate. None of the inaccurate, unreliable
videos should be admitted. Ultimately, if the government has a witness available to testify
to the events of March 5, 2016, such testimony would likely be admissible.
However, the testimony and not the inaccurate prejudicial distorted footage should be the evidence
that jury considers. Conclusion. For the four going reasons, Mr. Kalms requests this court
hold a hearing, and ultimately conclude that none of the available video files of the hotel
incident be admitted into evidence at Mr. Kalms' upcoming trial. This document was signed by Mark
Agnafilo, and it was dated April 2, 2025. All of the information that goes with this episode can
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