The Trial: Prosecutors Go for the Big Fish

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We saw a lot happen in court this week.

So let's catch up.

The last few days featured testimony from a really wide range of witnesses.

We heard from two special agents from Homeland Security Investigations, two former assistants who worked for Sean Combs, a makeup artist, and perhaps the most anticipated witness this week, Scott Mescady, better known as rapper Kid Cuddy, who once dated Cassie Ventura.

In her civil lawsuit, Cassie alleged that Cohns threatened to blow up Kid Cuddy's car after finding out that she and Kid Cuddy were dating.

Well, Thursday, we finally heard Kid Cuddy's version of that story.

Kid Cuddy walked towards the witness stand, wearing a black leather jacket opened with a white t-shirt underneath, blue jeans, and crisp white sneakers.

a cross earring dangling from his right ear.

He testified about a break-in at his home in December of 2011.

While he was with Cassie, he says he got a call from an assistant to Sean Combs, who allegedly told him Combs was in his house.

Kid Cuddy told the jury he returned home to find his gifts that he had bought for his family had been opened and its dog locked in the bathroom.

After the New Year, he testified he got a call that his Porsche was on fire in his driveway.

Jurors saw photos of the blackened interior and the charred, melted driver's seat.

Kid Cuddy said a Molotov cocktail was dropped into the car through a hole cut in the roof.

Arson is one of the underlying acts included in the racketeering conspiracy count Combs is facing.

And Cassie Ventura previously testified that Combs had threatened to have Kid Cuddy's car blown up.

Kid Cuddy testified that he reached out to Sean Combs to kind of squash the beef.

He met Combs at the Soho house of Los Angeles, where he walked walked into a room with just Combs standing there, staring out of a window with his arms behind his back, looking like, as Kid Cuddy testified, some kind of a Marvel supervillain.

That line got a laugh from the jury.

Although Cassie testified she started seeing Kid Cuddy when she and Combs' relationship was in a rough patch, Kid Cuddy testified that Cassie told him they had been split up.

On cross-examination, the defense said both Kid Cuddy and Combs were played by the same woman.

The person who played you, the person who played Sean, was Miss Ventura.

True?

One of the lawyers asked.

Yeah, Kid Cuddy replied.

And this week, the jury saw other photos too, including pictures of baby oil, lingerie, platform heels, and sex toys.

You'll recall Diddy's Los Angeles and Miami homes were raided by federal agents back in 2024.

Special Agent Gerard Gannon testified that the feds recovered the parts of two AR-15 assault-style rifles with defaced serial numbers only feet from where Combs allegedly stored supplies for freakoffs.

Prosecutors have argued that the threat of violence allowed Combs to coerce his alleged victims to participate in freak-offs.

Jurors also saw baggies of colorful pills and other drugs allegedly found in Combs' home, including marijuana, powders, and other drugs that prosecutors have alleged were used to make participants compliant during freakoffs and would allow them to perform well past the point of exhaustion.

Thursday afternoon, a makeup artist who worked with Diddy and Cassie testified that she saw Cassie with a swollen eye and busted lip and knots on her head after the Grammys in 2010.

Altogether, this week, it felt like the prosecution was really beginning to build support for its racketeering conspiracy charges.

This is Bad Rap, the case against Diddy.

I'm Brian Buckmeyer, an ABC News legal contributor and practicing attorney.

This episode, prosecutors go for the big fish.

As we wrap up the second week of USA v.

Sean Combs, I wanted to sit down with someone who could take listeners inside what goes into prosecuting a high-profile case like this one.

A federal criminal case that combines RICO charges along with sex trafficking.

My guest, Moira Penza, is a trial attorney working in private practice.

She's not involved in the Diddy prosecution, but she's got a lot of interesting insight because back in 2019, she was an assistant U.S.

attorney for the Eastern District of New York.

Moira was the lead prosecutor on a RICO and sex trafficking case the government brought against a man named Keith Raniere.

He was the leader of a company called Nexium that sold self-improvement classes and workshops.

Moira and her colleagues proved that Raniere was in charge of a criminal enterprise that engaged in sex trafficking and forced labor, among other crimes.

Ranire is currently serving a 120-year sentence.

And two members of his defense team are now representing Combs, Mark Ignifilo and Tenny Garagos.

So Moira has faced off against some of Combs' attorneys in open court, which is another reason I was curious to talk with her.

Now, in this conversation, we're going to lean on Moira's expertise and experience as a prosecutor.

You'll hear that in how she talks about these cases.

She often assumes the government's point of view.

But we want to remind you that Sean Combs has pled not guilty to all of the federal charges he's now facing.

I started by asking Moira what stood out to her so far about the prosecution and defense strategies in a Combs case.

Well, I think the the prosecution is being very methodical.

They are trying to elicit testimony that is really going to meet the elements of the crimes.

And so where they have salacious details, I think they are keeping it narrowly focused on what they actually are going to need to prove.

And I think that's the right approach for the government.

I also think the defense is doing a good job as well.

I think that they have an uphill battle because there is so much evidence here.

We have pictures.

We have a lot of corroboration.

We have video.

But what's standing out to me from the defense side is that they're really not defending the indefensible.

So they're taking responsibility for things that they know they have to take responsibility for, like the fact that the defendant engaged in domestic violence.

It's on tape.

So by standing up and taking responsibility for that on the defendant's behalf, that's preserving their credibility with the jury so that they can actually make other arguments about the law.

I also thought the defense was smart to not be overly aggressive with Ms.

Ventura.

We've seen defense attorneys make that mistake in other sex crimes prosecutions.

And I think what they were trying to do is just allow the messages to speak for themselves.

So regardless of what Ms.

Ventura may have said on any occasion or what the text messages say, to the extent the jury is going to be persuaded by those messages, that's enough.

They don't need to be standing up there attacking Ms.

Ventura, who's eight and a half months pregnant and was clearly the victim of crimes, even if, according to the defense, not sex trafficking or racketeering.

Let's talk about the part of the case you think is the most clear-cut, the charges of sex trafficking.

Why do you think that?

Well, I'm a former prosecutor and I've prosecuted very similar crimes back when I was at the Eastern District of New York.

And what we've seen is that the government has really laid out a strong case.

of the elements of sex trafficking.

I think we've also seen them lay out a strong case for the RICO conspiracy charges as well.

But talking about the sex trafficking first, the most important things for the government to prove there is that there was commercial sex that was compelled through force, fraud, or coercion.

And so, in this case, we have very clear commercial sex.

So, commercial sex is anytime there is sex exchanged for a thing of value.

In a lot of sex trafficking prosecutions we've seen recently against high-profile individuals, we're not talking about an actual exchange of sex for money as one might traditionally think about sex trafficking.

For example, in the Harvey Weinstein cases, you're talking about an exchange of sex for a position in the entertainment industry.

That's really what you're thinking about in terms of thing of value.

Here, this is a somewhat unique case in terms of recent sex trafficking prosecutions, in that we actually have participants in the sex act.

We have the escorts who actually are being paid.

Then you need the forced fraud or coercion.

And there, I think the government's laid out a very clear case as well.

We have incident after incident of physical violence against Ms.

Ventura surrounding these freak-offs.

We also have strong evidence of coercion.

So, where you have an individual who is in a dynamic with an abuser, where that abuser really has control over every aspect of her life.

So, her career all the way down to what color she's painting her fingernails, that's going to take away an individual's agency.

And so, in that situation, it is much easier for somebody who intends to hurt somebody to do so.

We also have the government introducing evidence of the threats against Ms.

Ventura that the tapes of the freak offs would be used if she were to leave him.

And so that's another really strong piece of evidence that we see as to the sex trafficking elements.

Now, we've been getting a lot of questions from listeners about the RICO charges Sean Combs is facing.

When people hear RICO, they might think of a criminal organization, like a mob or a gang.

I've also heard people talk about that the RICO statute being applied here is overly broad.

So can you help our listeners understand why the government is using RICO laws to prosecute Sean Combs?

Absolutely.

So racketeering laws do prosecute criminal organizations.

That's absolutely true.

And that's what the government is saying here.

The government is saying that Sean Combs was able to operate the way that he did because he was in fact part of a criminal organization, that there were other individuals who helped facilitate the crimes that he is charged with.

And that expansion of the racketeering laws to prosecute crimes other than mob cases has been going on for a long time.

So in the Eastern District of New York, you had the prosecution of soccer corruption under the racketeering laws.

We've seen various opioid cases that are brought under the racketeering laws.

And in fact, I used the racketeering statute when I prosecuted Keith Ranieri, who was the head of the Nexium, what's colloquially called a sex cult.

But there,

my argument was in fact that Keith Ranieri was running a criminal organization.

He wasn't a cult leader.

He was a crime boss.

And that's really what you hear the government doing in this case as well.

And that's why we're getting testimony from assistants, other people in his entourage, other people who were employed by him who saw what was happening and helped facilitate it, including by covering up his crimes.

So I'm actually curious about this because I've tried to have this conversation with my friends, and they're always saying, Sean Combs made music.

He produced music.

He had a whole fashion line, alcohol, everything.

His organization isn't criminal.

He's a business person, but then he did freak off.

So, like, only a percentage or a small part of it could be considered criminal.

So, how are you calling what he's doing a criminal enterprise?

Can you make sense of that?

Yes.

So, when the government is charging racketeering, they can say that an organization is entirely criminal, or they can say that there is an association of individuals who together are committing crimes.

And sometimes

an organization or the way that somebody is operating their businesses can help facilitate crimes.

So, again, similarly in the case that I prosecuted, even though we talk about it as the Nexium case, I did not charge Nexium as a criminal organization.

I charged Keith Ranieri and his associates together as a criminal organization who were using Nexium classes, the individuals who were taking Nexium courses to commit these crimes, sometimes as participants in the crimes, sometimes as victims.

And so just because there can be legitimate purposes to an enterprise, same thing with the FIFA case, right?

There can be legitimate purposes to an enterprise, but where an individual is working with others to commit crimes, even if they are also doing things that are legitimate, that can still be racketeering.

Last thing on this whole RICO allegation and charge, two-part question.

What does the government need to prove in order to make out their case against Combs that he's guilty of RICO charges?

And from what you've seen so far, are they doing that?

So they've charged Sean Combs with racketeering conspiracy.

So they have to show that he agreed with at least one other person

to engage in racketeering.

Then, to actually figure that out, what you're looking for is two predicate acts of racketeering that other people were involved in facilitating.

So, you know, there can be additional nuances to that as well, but I think the government's going to want to make it easy for the jury and say, here are all these instances where the crime that Mr.

Combs committed required other people's involvement.

So that's, I think, the way that the government is going to lay it out.

And in terms of whether they're there yet, I think they're getting there.

I think we've heard testimony that showed the involvement of other individuals.

We also had testimony from one of Mr.

Combs' assistants, and he was going to take a fifth.

So he was not going to testify saying that he would be incriminating himself if he took the stand.

And so he was actually granted immunity so that he would in fact testify.

And so having individuals who the government is actually

saying were part of this conspiracy testify about what they saw, what they did, that's going to be powerful evidence.

And we still have weeks of trial to go.

It's interesting that you bring up granting an individual immunity because George Kaplan, one of Sean Combs'

personal assistants, we saw him on Wednesday take the fifth, then be granted immunity, and then testify.

So what goes into an AUSA's mindset as to we need to give this person immunity in order to testify, and how do you get to that conclusion?

And then what do you do with them?

Well, I think this is one of the toughest parts of the job as a prosecutor is really exercising that prosecutorial discretion.

So just because somebody did engage in criminal conduct, just because somebody may have been a lower ranking member of a criminal conspiracy, you may choose not to charge them with crimes, right?

In other situations, you might actually charge somebody with a crime and then they cooperate with the government and testify in exchange for the government eventually seeking leniency on their behalf.

In other situations, and I can't speak to the exact specifics of how the government made the decision that they made, but in other situations,

what you're going to say is: this isn't necessarily somebody who I think should be charged for a crime, or there may be other reasons why you don't want to charge them with a crime.

But they themselves might say, or through their lawyers,

I'm not going to testify because what you want me to say is going to incriminate me.

And so, in that situation, the government makes a calculus that you don't want to prosecute the person, but it is also worth having them testify.

And you always want to be doing that when it is helping you get the person who is significantly more culpable.

And here,

there's clearly no dispute that the defendant, Mr.

Combs, was the head of this organization.

So the government is going to make certain decisions to make sure that they can hold him responsible.

sometimes people ask me in just a layperson's term.

And so I'm going to ask you in this term.

Sure.

Is it sometimes that you're just going after the big fish and you let the little fish go?

I think that's totally fair.

And I think that's the way that the system should work.

I think that prosecutorial discretion is a very important part of the system.

And certainly there can be cases where for a variety of reasons, maybe because somebody was such a victim, him or herself, that you choose not to prosecute them.

Just ahead, former prosecutor Moira Penza has faced some of Combs' defense team in court before, and she says they're making some new moves in the Combs trial.

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And I'm back with Moira Penza, a former federal prosecutor who's brought charges similar to what Sean Combs is facing.

Perhaps her most high-profile case was the prosecution of Keith Raniere, the former Nexium leader who was convicted of crimes including racketeering and sex trafficking in 2019.

I asked Moira if she sees any parallels between the two cases.

So I think that there are a lot of similarities in the cases in that you have an individual who, within his community, is very high powered.

Now, of course, far more people know Sean Combs than knew Keith Ranieri at the time that I prosecuted him, but they were both men who have significant influences in the spheres in which they operated.

And the way that I charged the Nexium case was

recognizing that the crimes that Keith Ranieri committed, he was able to commit over such a a long period of time and with so many victims because he did have the involvement of other people and because he was part of this organization where a lot of individuals were benefiting financially, emotionally

from being with him.

They aggrandized him and were willing to participate in the victimization of other people on his behalf.

In the Naxium case, for the sex trafficking piece, there were a number of different ways in which we proved the elements.

But basically, what we were saying was that

women were collateralized.

So there were women who thought they were joining a female empowerment group.

And as part of joining that, they were forced to hand over

nude pictures,

damning information about themselves, either true or false.

Once they had handed over that information, only later, once that blackmail material was already obtained, did they learn that part of this organization was requiring them to have sex with Keith Ranieri.

So that was the coercion that you see in terms of the sex trafficking charges that we have there.

And then in terms of the racketeering charges, again, we had other individuals who were helping groom women and who were involved in other crimes for Keith Ranieri, including covering up different pieces of it.

In terms of showing that the victims were under the coercive control of the defendant, Again, there were a lot of similarities.

So the women in my case were controlled in every aspect of their life.

And their whole lives had really become this person, this organization.

Their careers, they were really separated from people who could really serve as sounding boards for what was going on.

One difference that we do have is the level of alleged physical violence in the Sean Combs case.

In the Naxiam case, there was a little bit of that.

And of course, the sex crimes themselves are inherently violent.

But this sort of brutal physical violence is something that we didn't have in my case, but that you do have in this case.

And that I think is very powerful evidence for the prosecutors.

You've got a little bit of inside baseball here because you've gone up against Mark Icnifolo and Tenny Garagos.

And now the SDNY is going up against who I would describe as the lead defense attorneys in Sean Comb.

So what can we expect of their style?

What can we expect of the way they're going to cross-examine?

What can we expect of the closing arguments that the defense is likely going to bring up since you know their style of defense?

Mark and Tenny were the team in the Naxium case.

So I know them well.

Ms.

Garagos did not have as much of a stand-up role during the Naxium trial.

I certainly think she's a talented lawyer.

And I do think optically it was

a good decision on the part of the defense team to have a young woman who was a contemporary of the prosecution team standing up and showing that she was on the defendant's side and advocating for the defendant.

So I think to Mark and Tenny's credit, I don't think they're necessarily following the same playbook that I saw in their defense of Keith Ranieri.

And I think that reflects, you know, probably

their own evolution in how to defend these cases.

But also, I think, likely, I think Mr.

Combs is maybe more willing to allow them to

take certain approaches, like

accepting responsibility for being a bad boyfriend for domestic abuse.

So, I think right now,

where I think we're going to see closing arguments go is really a bookend of what we saw in opening.

I think we're going to see the defense say,

We've heard a lot of stuff you might not like, Jury,

but it's not the crimes that the government has charged.

And I think in that respect, it will be a little bit more matter of fact than we might have seen in the Nexium case, where I think

Mark

made more of an effort to try and paint Keith Ranieri as actually a good man with good intentions, as opposed to here, where I think they realize it will be a more effective strategy to admit that Mr.

Combs is a deeply flawed individual and just try and get the jury to stay focused on the narrow issue of, are these crimes actually proven?

In your case against Keith Ranieri, you had an expert, a forensic psychologist by the name of Don Hughes, who also testified in Sean Combs' case.

How did you use her expertise to help in that case?

And how do you see her expertise being used to further the government's case against Sean Combs?

So

I think in both cases, Dr.

Hughes's testimony is being used very similarly.

I think the Nexium case is actually the first case in which Dr.

Hughes testified, and she's now testified quite a bit on behalf of the government and on behalf of victims of abuse and sex trafficking.

The reality is that victims of sex crimes, victims of domestic abuse, often behave in ways that may seem counterintuitive to a layperson, to a jury.

We often see victims writing text messages talking about how much they love their abuser.

We see them going back, having consensual sex after they've been raped.

And that sort of behavior can sometimes, for somebody who is not familiar with the psychology of it, seem like it goes against the credibility of the victim.

In reality, those behaviors are very common.

I've seen it in

every sex crimes case that I was involved in.

And, you know, now as somebody who comments on these sorts of cases, it's something that you see in basically every case.

And

what Dr.

Hughes does is not talking about the specifics of the case at all, can explain

this sort of victim behavior and the psychology of it, and why we can see that, and put it into terms that are understandable for a jury.

And then the jury can apply what they've heard from Dr.

Hughes to what they've heard the victim say, and then it may be a lot more understandable.

So, for example, Dr.

Hughes talks about the fact that there's often love in these long-term relationships where there's abuse, but there's these trauma bonds that keep people coming back, even in situations where a lay person who, you know, thankfully has not experienced this sort of behavior thinks, why didn't she just leave?

The door was open.

She had family.

She could have gotten help.

And Dr.

Hughes can explain how difficult that can be in a situation where you've been abused repeatedly, especially where you have an individual who is extremely famous, who has enormous power over your career.

And that can be really helpful for the jury in answering some questions that they might have.

So the interesting thing that I found with this case, what also happened in Keith Ranieri's case, was that the defense had the argument of some of this was consensual or all of this was consensual as a way of defending their case.

What kind of difficulties does that create for the government in terms of trying to prove their case that either consent didn't happen or it doesn't matter in the context of these allegations?

I don't think that consent is a real challenge in this case because of the level of physical violence that you have and because of the coercive elements, the threats of blackmail.

It's something that is a challenge for the government, but certainly something that can be overcome.

And I think it's just something for the government to address head on.

But this isn't a he said, she said case.

It's really going to come down to the legal standard.

And I think the government is going to be able to show how

Regardless of what Ms.

Ventura may have said on any occasion or what the text messages say, that the elements of sex trafficking are met.

That's what we're going to hear the government say about these alleged crimes.

How do you prepare alleged victims to testify in court, considering all of what's going to happen in the direct examination, showing up to court, and especially the cross-examination?

I think that's one of the most challenging aspects of being a prosecutor because you are really asking these alleged victims to relive some of the most traumatizing events of their life.

And what I like to do is remind our victims that, or back when I was a prosecutor, that this individual doesn't have power over you anymore.

It's very different to see them in a courtroom when they've been charged with a crime and you're in the witness stand versus when you may have last seen them and all they are is this super high-powered individual.

And then always reminding people that they are not here to be an advocate for the government, they're just there to tell the truth.

I also like to remind victims that there's a lot of corroboration that we can't tell them about.

So, there's going to be a lot of other evidence that helps support what they're saying.

And we can't tell them the specifics of that, but we can tell them that they're not out there alone.

And then, in terms of cross-examination, just again, tell victims to tell the truth, to answer questions posed by the defense attorney the same way they're answering questions by the prosecutor.

And, you know, we talk about what to expect.

We would talk about you're going to see text messages saying that you loved him.

And just try and take away as much of the surprise element as you can.

Moira, thank you so much.

Nope, no problem.

Thanks for having me.

Court's taking somewhat of a longer break for Memorial Day weekend.

They're off today on Friday and resume on Tuesday, May 27th.

We'll be back in your feed later that day with the latest from ABC News Live's burden of proof.

If you have any questions about the case you'd like me to answer, call and leave a voicemail at 929-388-1249.

Thanks to everyone who's called.

We love hearing your your questions and we'll answer as many as we can on future episodes.

Bad Rap, The Case Against Diddy, is a production of ABC Audio.

I'm Brian Buckmeyer.

Our podcast production team includes Vika Aronson, Nancy Rosenbaum, Audrey Maztek, Amira Williams, Tracy Samuelson, and Sasha Aslanian.

Special thanks to Stephanie Maurice, Caitlin Morris, Liz Alesi, Katie Dendas, and the team at ABC News Live.

Michelle Margulis is our operations manager.

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Laura Mayer is our executive producer.

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