A federal judge ordered prosecutors Tuesday not to use papers taken from the jail cell of Sean “Diddy” Combs until he rules on defense claims that they are trial preparation materials protected by attorney-client privilege.
Judge Arun Subramanian made his ruling at a Manhattan federal court hearing after lawyers fiercely disputed the circumstances and relevance of the seizure of 19 pages that were photographed by an investigator inside the cell of the music mogul.
Combs, who has pleaded not guilty to all charges, is accused of coercing and abusing women for years with the aid of a network of associates and employees.
The seizure came during what the government has described as a multi-day sweep of all cells at the Metropolitan Detention Center in Brooklyn, intended to remove any weapons or contraband as an anti-violence measure.
Defense lawyer Marc Agnifilo said he may ask the judge to dismiss the indictment or force a recusal of prosecutors if the judge rules that the materials were obtained and used improperly.
Combs, who hugged his lawyers when he first entered the courtroom, carried a stack of papers as he was led away at the end of the hearing.
Agnifilo said he was unaware that the papers in Combs’ cell had been photographed by an investigator with the Bureau of Prisons and turned over to prosecutors until he saw them cited in written arguments opposing his $50 million bail proposal. A bail hearing is set for Friday.
He said two references to the papers were made as prosecutors argued that Combs has continued to commit crimes since his September arrest.
Prosecutors said Combs orchestrated social media campaigns aimed at tainting the jury pool, tried to publicly leak materials he thought would be helpful to his case and contacted potential witnesses through third parties.
Assistant U.S. Attorney Mary Slavik said the seized materials were scrutinized by independent government lawyers who are walled off from the prosecution to determine if they were protected by attorney-client privilege.
They were not discussed with defense lawyers because some of them were deemed to pertain to a covert and continuing investigation of Combs, she said.
Slavik also said prosecutors had no contact with jail officials beforehand and gave no instructions regarding any search of Combs’ cell.
Some of the photographed pages contained a to-do list and inspirational quotes along with comments about birthdays, according to Slavik, while two excerpts pertained to Combs paying and finding damaging material about potential witnesses.
Agnifilo said, however, that even things that seem unrelated to the case are protected by attorney-client privilege. For instance, he said, attorneys have discussed with Combs prospective witnesses they might call.
“Every single thing” in the seized papers is subject to attorney-client privilege because Combs discussed them with lawyers, Agnifilo said.
“The government now knows potential defense witnesses for a May 5 trial,” he added. “This has been a complete government failure.”
The judge asked each side to submit written arguments in the coming weeks.
