The Sean “Diddy” Combs criminal case has garnered plenty of attention for its salacious allegations. Rather than parsing the RICO and other charges, however, I’m going to capitalize on the case to explain some of the nuts and bolts of pretrial practice in criminal cases and talk about why pretrial schedules really matter.
A little background: This case is in the Southern District of New York before Judge Arun Subramanian. Mr. Combs was arrested in September 2024. At the October 2024 initial conference, the judge scheduled trial to begin on May 5, 2025. He also set a pretrial motion schedule of February 17, 2025. He left other pretrial events unscheduled and asked the parties to meet and confer about them.
On January 3, 2025, the parties filed a joint letter about the pre-trial schedule. It may read like a boring back and forth about deadlines. But these deadlines are key to both the prosecution and defense. Setting some deadlines early or moving others to later in time affects the defense’s ability to prepare for trial. The court then issued an order with the pretrial schedule on January 8, 2025.
Let’s dive in, shall we?
The Initial Trial Date
The trial date—spanning fewer than eight months from arrest to trial—would be fast for nearly any federal jurisdiction (that I know about) except SDNY and the Eastern District of Virginia. Those are two courts known for quick trials following arrest. A complex criminal case in federal court in the District of Columbia could take a year or two after the arrest.
Of course, a defendant can assert his speedy trial rights and demand a trial within 70 days of indictment or the initial appearance. This rarely happens in complex cases as I explained in a post here and here. Mr. Combs has asserted his speedy trial rights in this case, though certain time periods are excluded from that calculation.
Brady Order
The magistrate judge in Mr. Comb’s case issued a “Brady order” or “Rule 5(f)” order back in September 2024. Under the new(ish) Federal Rule of Criminal Procedure 5(f), federal courts must issue an order at the very beginning of the case, making clear that the government must disclose exculpatory evidence to the defense under Brady v. Maryland. These orders are helpful to the defense because the court will usually only sanction a party who violates a court order. These orders are unhelpful to the defense because they do not set a deadline for production of Brady material. The SDNY order says, “[t]he Government shall disclose such information to the defense promptly after its existence becomes known to the Government so that the defense may make effective use of the information in the preparation of its case.”
Keep in mind that in a complex case, the government may have been investigating for years before arresting the defendant. The prosecutors, and the assisting FBI agents, know the evidence extremely well. The defense may have engaged in proffer sessions where the defense explained why the government should not charge their client—in that way, the defense has already given the government the outlines of how it will defend the case. (To be clear, defense counsel doesn’t explain every part of the defense during a proffer session. Where there’s a chance the government may decline to prosecute, the defense has often the government a strong understanding of its basic defense.)
In other words, at the time of arrest, the government knows what evidence it has in its possession and knows what part of that evidence is exculpatory and subject to disclosure under the Brady order. Yet the government, as we’ll see below, will delay production of that exculpatory evidence for as long as possible, despite the existence of the Brady order. The lack of a deadline in the order permits the government to engage in these delay tactics.
Typical Pre-Trial Disclosure Deadlines
Courts generally set pretrial disclosure deadlines for the government for some specific matters.
First, the judge will set a deadline for “404(b)” disclosures. Federal Rule of Evidence 404 is about character evidence. Very often in criminal cases, the government wants to bring up other things the defendant has done to make the defendant look bad. But the government isn’t allowed to do that–at least not directly. Instead, Rule 404(b) allows the government to offer that evidence if the government offers the evidence “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” This is broad language, and there is a lot of case law in every jurisdiction defining the fuzzy contours of what is allowed under Rule 404(b).
Rule 404(b) also requires that the government provide “reasonable notice” of what 404(b) evidence it plans to offer. These notices often lead to considerable motions practice since the defense will want to exclude 404(b) evidence from trial. Really, there’s never anything helpful for the defense in a 404(b) notice.
In the Combs case, the government may also have disclosures under Rule 413, which applies in sexual assault cases. It provides that “[i]n a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.” Under the rule, the government must disclose its plan to offer this evidence at least 15 days before trial.
Second, SDNY has a practice of requiring the government to file an “enterprise letter” in a criminal RICO case. As one court case put it, “[s]uch letters have been productively utilized in numerous racketeering cases in this District, as a means of particularizing the allegations in an indictment or the evidence the Government intends to introduce at trial.” United States v. Sierra, No. 11 CR. 1032 PAE, 2012 WL 2866417, at *8 (S.D.N.Y. July 11, 2012). The enterprise letter will describe the specific acts that the government alleges are part of the RICO enterprise.
Third, the judge will set deadlines for both sides’ expert disclosures. Where I practice, the government will disclose its experts first, so that the defense can identify and disclose experts to respond. If you are used to civil practice, expert disclosures in federal criminal cases are very different. They are summaries of the expert’s opinions and bases for the opinions rather than a full expert report.
Fourth, the judge will set a pretrial deadline for the government to disclose Jencks or “3500” material. These are statements by witnesses and usually include the disclosure of 302s or summaries of witness interviews. This is critical evidence for the defense. Finding out what witnesses will say about your client is key to crafting a defense. The government knows how helpful it is and thus tries to delay production as much as it can. Now, technically, 3500 material need not be disclosed until after the witness has testified on direct examination but early “voluntary” disclosure is the norm in most cases. Given that 302s may not even be considered Jencks (a position adopted by DOJ in 2012), a court should have the discretion to order production at any time.
Finally, the judge will set dates for an exchange of witness and exhibit lists. It can be a simultaneous exchange or the court may order the government to disclose first and the defense shortly thereafter–maybe a week or two later.
Summary of Proposals and the Court’s Order
The court in Mr. Combs’ case set a deadline for pretrial motions of February 17, about three months before the May 5 trial date. This would normally include Daubert motions (to exclude expert testimony), motions to suppress, and so forth. The defense has also indicated that it plans to file a motion to dismiss some or all the charges. A motion to dismiss is a long shot motion but preserves issues for appeal. Here, however, the RICO standard is complicated so it’s possible there may be a legal argument that has some teeth.
Here is a summary of the deadlines proposed by each side and what the Court ultimately decided:
| Event | Government’s Proposal | Defense Proposal | Court’s Order |
| Pre-trial motions | January 31 | February 17 | February 17 |
| RICO enterprise letter | March 7 (8 weeks before trial) | February 1 | February 1 |
| Expert notices | Both parties – March 7 | Government – March 7 Defense – March 21 | Government – March 7 Defense – March 14 |
| 404(b)/413 disclosures | March 7 | February 1 | March 7 |
| Motions in limine | Both parties – March 21 | Both parties – April 1 | Both parties – April 1 |
| Jencks/3500 | March 21 – defense counsel (not Mr. Combs) can review all statements April 4 –Mr. Combs can review law enforcement witness statements April 18 – Mr. Combs can review other witnesses | March 1 for all witnesses and complete access by Mr. Combs | March 21 – defense counsel (not Mr. Combs) can review all statements April 4 –Mr. Combs can review law enforcement witness statements April 18 – Mr. Combs can review other witnesses |
| Witness & exhibit lists | Government – April 14 Defense – April 25 Rule 26.2 – April 25 | Government – April 14 Defense – April 25 Rule 26.2 – close of gov’t case in chief | Government – April 14 Defense – April 25 Rule 26.2 – close of gov’t case in chief |
| Jury questionnaire | April 11 | April 11 | April 11 |
| Jury instructions, voir dire, verdict forms | April 25 | April 25 | April 25 |
There are too many issues to parse in one blog post, but I’ll try to hit the high points.
The Government’s Strategy
The government’s strategy in its request was twofold: (1) Delay the disclosure of evidence that will help the defense prepare its case; and (2) force the defense to reveal its defense strategy by filing pretrial motions as early as possible.
For example, the government wanted to accelerate the pre-trial motion deadline. This is likely because it wants to understand as much of the defense case as possible. And it wants a quicker deadline for motions in limine. Those motions are where both sides are apt to reveal strategy since the reasons to exclude evidence are often on grounds of relevance. Seeing how the other side describes the relevance of the evidence can be a helpful roadmap for the government to understand where the defense is heading.
The government hoped to delay disclosure of evidence that will help Mr. Combs and his legal team, seeking extra time to provide its 404(b)/413, RICO enterprise letter, and Jencks material. This is the document that will help the defense understand the contours of the key charges against Mr. Combs including dates, times, and participants. The government has this information since it couldn’t charge the case without it. It simply doesn’t want to tell the defense. It offered no substantive reason for not being able to provide the information in the January 3 letter.
The Defense Strategy
The defense focused, as it should be, on obtaining as much information about the government’s case as soon as possible. This is not only to permit the defense to draft pretrial motions to exclude unfairly prejudicial and irrelevant evidence at trial but also to help the defense prepare for trial itself.
For example, the RICO enterprise letter will disclose the participants in the charged conduct. This disclosure allows the defense to contact potential witnesses and formulate defenses by searching discovery for information to challenge those witnesses’ testimony. Jencks material will describe what witnesses have told the government. If the government interviewed someone – such as a cooperator – several times, then those interview memos could reveal inconsistences that can be exploited at trial to challenge the witness’ credibility.
The defense also wanted to delay production of its own discovery under Rule 26.2 as long as possible. If you don’t know about Rule 26.2, you can check out our post here.
Jencks and Brady
A prosecutor’s obligation to comply with Brady should trump the timing of Jencks disclosures. The defense raised this issue explicitly in its objection to the government’s proposed late deadline for Jencks. The defense argues
In particular, the Government’s inability to appreciate what constitutes Brady and Giglio information means that the Government will be withholding exculpatory witness statements in its possession until the 3500 deadline. The Government has already demonstrated its inability to appreciate the contours of Brady and Giglio, as well as the time required to effectively make use of such material (including defense investigation, subpoenaing evidence, and interviewing witnesses). We anticipate that this will be the subject of motion practice, as early as next week. An early 3500 deadline may resolve such Brady disputes, as well as motions for bills of particular.
The defense also correctly pointed out the production of Jencks material just six weeks before trial is “unconstitutionally burdensome” because the defense has such a limited period to follow up on exculpatory information disclosed at that point. It takes time to track down and convince witnesses to talk to defense counsel, not to mention to search for documents in voluminous discovery, or to locate other witnesses to challenge the testimony.
The fact that the Brady order does not have a deadline makes this argument more difficult for the defense. However, discovery in a criminal case happens behind the scenes and not on PACER. The government may have already handed over considerable Brady material to the defense. But, from the tone of the letter, I’m guessing it has not and is instead trying as hard as possible to delay the production of Brady material by hiding behind its Jencks argument.
The Court’s Order
It’s not surprising that the Court didn’t hand an outright win to either side. Judge Subramanian gave the defense a few wins and gave the government one big one.
First, the government has to provide the enterprise letter by February 1, rather than March 7 as it had proposed. This will help the defense understand the scope of the entire case and give the defense more time to file pre-trial motions if the enterprise letter does not satisfy the complex RICO statute.
Second, the defense will have to wait longer than it hoped for 404(b) and Jencks material. The court’s deadlines deadlines strongly favor the government because they leave the defense waiting a few extra weeks to find out what witnesses have told the government and what “other acts” evidence the defense will need to counter at trial. While a few weeks doesn’t sound like a lot of time, it is an eternity for the lawyers who are feverishly preparing for trial. Defense counsel will have its strongest insight into the contours of the government’s case just after March 21, when it receives witness statements. That’s just 6 weeks before trial begins–and a full six months after the government indicted Mr. Combs. The government gets to sit on all that key evidence for month after month.
In theory, the government should have already produced any Brady material in those witness statements. We’ll keep an eye out for motions practice suggesting that it did not.
Third, the judge did give the defense a bit of a reprieve on expert disclosures, but not much of one. Rather than simultaneous disclosures on March 7, as the government suggested, the government will provide its disclosures first and the defense will have one extra week to respond to them with its own disclosures (the defense wanted two weeks).
Deadlines Matter to Defense Counsel
The timing of pretrial disclosures is very jurisdiction- and judge-dependent. Some judges in DC, for example, require very early disclosure of Jencks and witness/exhibit lists by the government. And while they will complain about late-filed defense motions in limine, it’s rare that these motions will be denied for untimeliness even those filed the day before trial. SDNY, in my limited experience there, is far more rigid in its deadlines. That makes it a particularly difficult place to defend a client.
It is encouraging that the parties agreed on a later deadline for motions in limine (3 weeks before trial). The upside is that this protects the defense from having to reveal its strategy until closer to trial. It may appear to place a lot of pressure on the court to decide the motions quickly. But many motions in limine are denied without prejudice because the judge will decide that she needs to evaluate the evidence when it comes up at trial and not before trial.
One key point is that the defense has less leverage for delay here since it’s pushing for a speedy trial. The entire schedule is quite condensed, which is a product both of SDNY practice and speedy trial rules.
Judge Subramanian has scheduled the next pretrial conference for March 17. Neither side is asking for a delay of the trial date, so it should be a very busy few months on both sides.