Carroll v. Trump

:    a     TINEY RIE                □ 
UNITED STATES DISTRICT COURT                   3      BMCUMENT 
SOUTHERN DISTRICT OF NEW YORK                  :    HGLMCTRONICALLY  FILED 4 
warn  rn    eee eee nee  eee eee eee         DOCH                       
  JEAN CARROLL,                                       | DATE FILED: 3-(0- □□□□□ | 

           -against-                                             20-cv-7311 (LAK) 

DONALD J. TRUMP, 
                       Defendant. 
□□□ RR Re RR   eB  ee  eee  ee ee  ee eee   K 

                         MEMORANDUM OPINION 

                 Appearances: 

                             Roberta Kaplan 
                             Joshua Matz 
                             Shawn Crowley 
                             Matthew Craig 
                             Trevor Morrison 
                             KAPLAN HECKER & FINK LLP 
                             Attorneys for Plaintiff 
                             Alina Habba 
                             Michael T, Madaio 
                             HABBA MADAIO & ASSOCIATES LLP 
                             Attorneys for Defendant 

LEWIS A. KAPLAN, District Judge. 
           Donald J. Trump is accused in this and a second very closely related civil case of 
having raped E. Jean Carroll in the mid 1990s. Ms. Carroll claims, in this action, that Mr. Trump 

defamed her in 2019 ina series of public responses to the first public appearance of her accusation. ' 
Her claim in the second case is for damages for the alleged rape as well as for a different allegedly 
defamatory statement. 
           The matter now is before the Court on Mr. Trump’s motion to exclude from evidence 
at the trial of this case an excerpt from the so-called Access Hollywood tape that was broadcast 
nationwide repeatedly during the 2016 presidential campaign, the testimony of two witnesses — Mss. 
Leeds and Stoynoff— who previously have claimed that Mr. Trump sexually assaulted them, and 
extremely short excerpts of videos of campaign remarks by Mr. Trump. He seeks also to exclude any 
evidence regarding emotional harm that Ms. Carroll may have suffered as a result of the underlying 
incident. 
           Before proceeding to the analysis, it is appropriate to set out the legal framework that 
applies at this stage of the case to the bulk of the motion and the Court’s limited role in ruling on Mr. 
Trump’s principal evidentiary objections. 

The Framework and the Court’s Limited Role 
           Most of the evidence that Mr. Trump secks to keep from the trial jury is to the effect 
that Mr. Trump allegedly has abused or attempted to abuse women other than Ms. Carroll in ways
           The Court assumes familiarity with its decisions in beth actions.  See Dkt 32, Carroll v. 
           Trump, 498 F. Supp. 3d 422 (S.D.N.Y. 2020), rev'd in part, vacated in part, 49 F Ath 759 
           (2d Cir. 2022),  Dkt 73, Carroll v. Trump, 590 F. Supp. 3d 575 (S.D.NLY. 2022), Dkt 96, 
           Carroll vy. Trinnp, No. 20-CV-7311 (LAK), 2022 WL 6897075 (S.D.N.Y. Gct. 12, 2022); 
           Doc. No. 22-cv-10016 (Carroll), Dkt38, Carroll v. Trump, No, 22-cy-10016 (LAK), 2023 
           WL  185507  (S.D.N.Y.  Jan.  13,  2023);  Carroll H,  Dkt  56,  Carroll v.  Trump,  No. 
           22-CV-10016 (LAK), 2023 WL 2006312 (S.D.N.Y. Feb.  15, 2023). Unless otherwise 
           indicated, Dkt references are to the docket in 20-cv-7311 (Carroll J). 

that are the comparable to what he allegedly did to Ms. Carroll.  In other words, Ms. Carroll offers 
the evidence to show that Mr. ‘Trump has a propensity for such behavior. 
           Mr. Trump correctly points out that the Federal Rules of Evidence ordinarily preclude 
propensity evidence.  In 1994, however, Congress enacted Rule 415, which created an important 
exception to that principle.  In a civil case “based on a party’s alleged sexual assault,” as that term 
is defined in the rules, “evidence that the [defendant] committed any other sexual assault” may be 
admitted in such cases.”  So the initial questions presented by Mr. Trump’s motion are (a) whether 
this is a case “based on [an] alleged sexual assault,” (b) whether the evidence Mr. Trump seeks to
           The exception created in Rule 415 applies also in civil child molestation cases, Fed. R. Evid. 
           414, There is a comparable exception for criminal cases. Fed. R. Evid. 413. 
           The purpose of these amendments to the Federal Rules of Evidence was to make it easier 
           to convict and hold civilly liable alleged perpetrators of such assaults. See 140 Cong. Rec. 
           $12990-01,  $12990 (1994) (statement of Sen. Robert Dole) (“The reform effected by these 
           rules is critical to the protection of the public from rapists and child molesters, and is 
           justified by the distinctive characteristics of the cases to which it applies... . In child 
           molestation cases, for example, a history of similar acts tends to be exceptionally probative 
           because it shows an unusual disposition of the defendant-a sexual or sado-sexual interest in 
           children-that simply does not exist in ordinary people... . Similarly, sexual assault cases, 
           where adults are the victims, often turn on difficult credibility determinations. ... The 
           practical effect of the new rules is to put evidence of uncharged offenses in sexual assault 
           and child molestation cases on the same footing as other types of relevant evidence that are 
           not subject to a special exclusionary rule.”), United States v. Schaffer, 851 F.3d 166, 181 
           n.81 (2d Cir. 2017) (“[David J. Karp’s article] explain[s] that one of the primary arguments 
           in favor of Rule 413 was that ‘the past conduct’ of ‘[a] person with a history of rape or child 
           molestation , . . provides evidence that he has the combination of aggressive and sexual 
           impulses that motivates the commission of such crimes, that he lacks effective inhibitions 
           against acting on these impulses, and that the risks involved do not deter him. A charge of 
           rape or child molestation has greater plausibility against a person with such a background.””) 
           (quoting David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and 
           Other Cases, 70 CHI-KENT L. REV. 15, 20 (1994)); id. (noting that “Sen. Robert Dole, 
           principal sponsor of Rule 413, referr[ed] to David Karp’s work as “provid[ing] a detailed 
           account of the views of the legislative sponsors and the administration concerning the 
           proposed reform, and should also be considered an authoritative part of its legislative 
           history’”) (quoting 140 Cong. Rec. at $12990). 

exclude is evidence of “other sexual assault[s],” and, even if both are so, (c) whether Rule 403 
warrants exclusion of that evidence. 
           Moreover, it is relevant to emphasize that the Court’s role with respect to evidence 
of prior sexual assaults in a case like this is limited.  The Court does not itself decide what Mr. 
Trump meant in making his various statements.  It does not decide whether Mr. Trump or Mss. 
Leeds and Stoynoff are more credible. All of that is for the trial jury. The Court’s role is to determine 
whether the evidence regarding these alleged prior incidents and Mr. Trump’s statements would 
permit a jury reasonably to find that Mr. Trump has a history of sexual assaults that could be 
probative of whether he committed the alleged attack on Ms. Carroll. 

The Access Hollywood Tape 
           Mr. Trump first seeks to exclude from evidence an excerpt from (a) the so-called 
Access Hollywood tape, an excerpt that records an exchange among Mr. Trump and others as the 
group arrived for the shooting of a television episode, as well as (b) a brief taped excerpt from a 
question to and response by Mr. Trump during a 2016  presidential debate regarding his statements 
onthe Access Hollywood tape. He contends that his statements on the Access Hollywood video could 
be taken to support the allegation that he committed the alleged sexual attack on Ms, Carroll and 
therefore should not be heard by the jury. 
           The audio of the excerpt offered by Ms. Carroll reads as follows: 
           Unknown: “She used to be great. She’s still very beautiful.” 
           Trump: “You know and I moved on her actually. You know she was down on Palm 
           Beach. I moved on her and I failed. I'll admit it. I did try and fuck her. She was 

married.” 
Unknown: “That’s huge news.” 
Trump: “No, no, Nancy. No this was [(inaudible)]. And 1 moved on her very heavily 
in fact I took her out furniture shopping. She wanted to get some furniture. I said Pl 
show you where they have some nice furniture. I took her out furniture [sic].  [moved 

on her like a bitch, but I couldn’t get there, and she was married. Then all of a sudden 
I see her, she’s now got the big phony tits and everything. She’s totally changed her 
look.” 
Bush: “Sheesh, your girl’s hot as shit. In the purple.” 
Multiple voices: “Whoa! Yes! Whoa!” 
Bush: “Yes! The Donald has scored. Whoa, my man!” 
[Crosstalk] 
Trump: “Look at you. You are a pussy.” 
[Crosstalk] 
Trump: “Maybe it’s a different one.” 
Bush: “It better not be the publicist. No, it’s her. It’s” 
Trump:  “Yeah that’s her.  With the gold. I better use some Tic Tacs just in case I 
start kissing her.  You know I’m automatically attracted to beautiful — I just start 
kissing them. It’s like a magnet. Just kiss.  [don’t even wait. And when you're a star 
they let you do it. You can do anything.” 
Bush:  “Whatever you want.” 
Trump:  “Grab them by the pussy.  You can do anything.” 

     Ms. Carroll’s Case is “Based On” An Alleged Sexual Assault 
           As previously stated, Mr. Trump almost certainly is correct in arguing that the quoted 
statements on the Access Hollywood tape are offered by plaintiff for “only one purpose: to suggest 
to the jury that Defendant has a propensity for sexual assault and therefore the alleged incident [with 
Ms. Carroll] must have in fact occurred.”’  He is correct also that the Federal Rules of Evidence 
ordinarily preclude propensity evidence. As noted above, however, Rule 415 provides that “evidence 
that the [defendant] committed any other sexual assault” may be admitted in “‘a civil case involving 
 claim for relief based on a party’s alleged sexual assault,” as that term is defined in Rule 413(d).4 
           Mr. Trump nevertheless claims that this is not a case “based on a  party’s alleged 
sexual assault” because Ms. Carroll’s claim in this case — as distinguished from Carroll IT, which 
asserts both battery and defamation claims — is exclusively for defamation, not rape or some other 
form of sexual assault.  He contends that there are two schools of legal thought as to the meaning 
of “based on” as used in Rule 415 and that the narrower and, in his submission, better view — 

referred to as the “categorical approach” — is that a case is “based on” a sexual assault only if proof 
of the sexual assault is an element of the claim for relief.  Proof of defamation, he says, does not 
require proof of a sexual  assault.  But there is no need in this  case to  debate the preferable 
interpretation of the phrase “based on” as used in Rule 415. For whatever the theoretical merits of 
the categorical approach as applied in other cases, this particular case is “based on” an alleged sexual
           Def. Mem. (Dkt 131) at 15,
           Fed. R. Evid. 415(a). 

assault under either approach for a very simple reason: proof of sexual assault is an essential element 
of Ms. Carroll’s defamation claim given the nature of the alleged defamation. 
           The core of the alleged defamation in this case, although it is broader, is that Mr. 
Trump’s statements in words and in substance included the assertions that Ms. Carroll lied in 
claiming that Mr. Trump raped her, that her accusation is a “hoax.” Thus, in order to prevail on her 
libel claim, Ms. Carroll must prove that Mr. Trump sexually assaulted her.” Unless she proves that 
sexually assault, she cannot establish that Mr. Trump’s  charge that her story was a lie and a hoax was 
false.  In consequence, this indeed is a case“based on” a sexual assault even under the categorical 
approach. In any event, as  Judge Furman recently explained in a thoughtful opinion, the alternative 
view of the meaning of “based on” — a view under which a case is “based on” a sexual assault □□□ 
sexual assault is a premise of a plaintiff's claim -- is preferable to the categorical approach,° an 
analysis with which I agree. And under that test there is no serious question that Ms. Carroll’s claim 
is “based on” an alleged sexual assault. 

     The Access Hollywood Tape Satisfies Rule 415 
           The next question is whether the Access Hollywood tape contains evidence of one or 

more other “sexual assaults” by Mr. Trump. This requires further consideration of the definition of
           Palin v. New York Times Co., 940 F.3d 804, 809 (2d Cir, 2019) (“Under New York law a 
           defamation plaintiff must establish five elements: (1) a written defamatory statement of and 
           concerning the  plaintiff,  (2) publication to  a third party, (3) fault,  (4) falsity of the 
           defamatory statement, and (5) special damages or per se actionability.”) (emphasis added) 
           (citation omitted).  For Ms. Carroll to establish the “falsity of [Mr. Trump’s allegedly] 
           defamatory statement,” she must prove that Mr. Trump sexually assaulted her.
           Boyce y, Weber, 19-cv-3825, 2021 WL 2821154, at *8 (S.D.N.Y. July 7, 2021). 

“sexual assault” in Rule 413(d). 
           Rule 413(d) defines “sexual assault” as “a crime under federal law or under state law 

   involving” any of five categories of conduct, the relevant portions of at least two of which have 

a bearing here: 
           °      “contact, without consent, between any part of the defendant’s body —  or an 
                 object — and another person’s genitals or anus” - Rule 413(d)(2). 
           □      “an attempt... to engage in conduct described in subparagraph[]"(2) - Rule 
                 413(d)(5). 
           The first italicized portion of the Access Hollywood tape excerpt evidences Mr. 
Trump stating that he “moved on” a woman named Nancy’ “like a bitch,” that he “tried to fuck her.” 
The second italicized portion evidences Mr. Trump said that he just starts kissing beautiful women, 
he does not first obtain consent, that the women just let one do it when one is a “star,” and that a 
“star” can “grab” beautiful women by their genitals or do anything the “star” wants. Moreover, he 
testified in his deposition: 
           “Q    □□□ you consider yourself to be a star? 
            A    I think you can say that, yeah.”* 
           The Court acknowledges that Mr. Trump has claimed that his statements were “locker 

room talk” — presumably meaning that they were not true — and that he has denied that he has 
behaved in the manner described by his statements.  Although he has not so argued, some of the
           Possibly Nancy O’ Dell, then a television personality. 
     & 
           Trump Dep. (Dkt 135-3) at 174:20-21. 

statements perhaps may be susceptible of varying interpretations — including in some respects 
interpretations that may be inconsistent with sexual misconduct by Mr.  Trump.  Possibly,  for 
example, he may claim that he was speaking of what other “stars” have done, not his own conduct. 
But that is not what is required to justify exclusion for failure to satisfy Rule 415. 
           While Rules 413 and 415  do not articulate the standard for the admission of evidence 
of sexual assaults, those courts that have addressed the question have held that “a trial court 
considering evidence offered under Rule 415 must decide under Rule 104(b) whether a reasonable 
jury could  find by a preponderance of the evidence that the past act was an ‘offense of sexual assault’ 
under Rule 413(d)’s definition and that it was committed by the defendant.”  It simply is not the 
Court’s function in ruling on the admissibility of this evidence to decide what Mr. Trump meant or 
how to interpret his statements. 
           In this case, a jury reasonably could find, even from the Access Hollywood tape alone, 
that Mr. Trump admitted in the Access Hollywood tape that he in fact has had contact with women’s 
genitalia in the past without their consent, or that he has attempted to do so.  And that conclusion is 
supported by the other evidence discussed below. Accordingly, the tape satisfies Rule 415 by virtue 
of Rule 413(d)(2) and (d)(5).
           E.g., Johnson vy. Elk Lake School District, 283 F.3d 138, 154-55 Gd Cir. 2002) (emphasis 
           added).  Accord,  United States v. Keen, No. 4:21-CR-00052,  2023 WL 2226796, at *3 
           (M.D. Pa. Feb, 24, 2023); 4.2. v. Pohlman, Civ. No. 16-17865, 2019 WI 468528, at *1 
           (E.D. La. Feb. 6, 2019); McMahon v. Valenzuela, Case No. 2:14-cv-02085-CAS(AGRX), 
           2015 WL 7573620, at *4 (C.D. Cal. Nov. 25, 2015);  United States v.  Levinson, No. 
           10-80166-CR, 2011 WL 110284], at *3 (S.D. Fla. Jan. 31, 2011) (in the context of Rule 
           414, whether the defendant committed a prior child molestation offense}; CHRISTOPHER 
           MUELLER AND LAIRD KiRKPATRICK, FEDERAL EVIDENCE § 4:84, at 346-37 (3d ed. 2007). 

                                                                           10 
The Two Alleged “Other Victim” Witnesses 
     Jessica Leeds 
           Ms. Leeds testified at her deposition that she was seated beside Mr. Trump on a flight 
from Texas to New York in 1979.  After they finished eating the served airline meal, Mr. ‘Trump 
assaulted her: 
                 “tHe was with his hands grabbing me, trying to kiss me,  grabbing my 
           breasts, pulling me towards him, pulling himself on me.  It was kind of a struggle 
           going on.  *   *   *  That went on for what seemed like a terribly long time, but it 
           probably was just a few seconds. 
                 “It was when he started putting his hand up my skirt that I realized that 
           nobady was going to save me but me, and I was on the aisle,  J managed to wheel my 
           way out of the chair, and grabbed my purse, and I went back to my seat in the 
           back.”"° 
           Some time later, Ms. Leeds testified, she was at prominent retail store in New York 
for an event at which guests were seated at tables. Ms. Leeds was working at a table distributing 
“chits” (table assignments) to those attending. Mr. Trump and his wife came up to the table.  Ms. 
Leeds handed him his “chit” whereupon “he looked at [her] and], according to Ms. Leeds,] he said, 
‘remember you.  You’re the cunt from the airplane.”"' 
           Mr. Trump has claimed that Ms. Leeds is a liar and that no such event over occurred. 

      18 
           Leeds Dep. (Dkt 135-5)  at 19:3-18. 
      IL 
           Id. at 22. 

                                                                           il 
And he will be entitled to make that argument to the jury.  But that is not now the issue.  Even 
considered alone, Ms. Leeds’ account, if credited by the jury, reasonably could be regarded as 
describing unconsented-to sexual contact by Mr. Trump and also as an attempt by Mr. Trump to 
bring at least his hands, and perhaps other parts of his body, into contact with Ms. Leeds’ genitalia, 
in each case in violation of federal law.”  It therefore satisfies at least Rule 413(d)(2) and 413(d)(5) 
and thus Rule 415. 

     12 
           In order to be admissible under Rule 415, evidence of a sexual assault of a person other than 
           the plaintiff must also have been a federal or state crime. That requirement is satisfied here. 
           49 U.S.C, §§ 46506 and 46501(2) make it a crime to commit an act on an “aircraft in the 
           United States” that would violate any provision of chapter 109A of title 18 of the United 
           States Code if the act had been committed in the special maritime and territorial jurisdiction 
           of the United States. 
           18 U.S.C, 2246(3), which is part of chapter 109A, defines “sexual contact” in relevant part 
           as “the intentional touching, either directly or through the clothing, of the genitalia, ... 
           groin, breast, [or] inner thigh ... of any person with an intent to ., , arouse or gratify the 
           sexual desire of any person.” Mr. Trump’s alleged non-consensual grabbing of Ms. Leeds’ 
           breasts and putting his hand up her skirt, if it occurred, therefore would have been forced 
           “sexual contact” or, at least, an attempt to make such contact,  under chapter 109A. 
           That takes us to 18 U.S.C. § 2244(a)(1}, which makes it unlawful knowingly to cause 
           another person to engage in a “sexual contact” by force, or to attempt to do so, in the special 
           maritime and territorial jurisdiction of the United States if so to do would violate section 
           2241(a) or (b) had the “sexual contact” been a “sexual act.”  18 U.S.C. § 2241(a)(1) makes 
           it a crime knowingly to engage in a “sexual act” with another within the special maritime 
           jurisdiction of the United States.2241(a). 
           Accordingly, the alleged assault on Ms. Leeds while on an “aircraft in the United States,” 
           attempted or completed, if it occurred, thus would have been a federal crime under 49 
           U.S.C. § 46506 and 46501(2). 

                                                                           12 
     Natasha Stoynoff 
           Ms.  Stoynoff, then a writer for People magazine, traveled to Mar-a-Lago, Mr.   □ 

Trump’s residence in Florida, to interview him and his wife, Melania.  Mr. Trump offered to show 
Ms. Stoynoffa  painting that he said was hanging in a certain room, and took her there. As she began 
looking around, she heard him close the door behind her.  Then, she testified: 
                 “T turn around and he’s right here (indicating), and he grabs my shoulders and 
                 pushes me against this wali and starts kissing me. 
           Q     Did he say anything before? 
           A     Not that I recall. 
           Q     And what was going through your mind when Donald Trump did this? 
           A     Complete shock.  Thank you.  Complete shock because it was very fast and 
                 I was taken — taken by surprise. 
           Q     And do you recall how you reacted? 
           A     I do recall pushing him back twice.  I recall trying to say something, but not 
                 really being able to.  I was so flustered. 
           Q     And when you pushed him back the first time do you recall how Donald 
                 Trump reacted? 
           A     Yes.  He just came toward me again. 
           Q     And what about after the second time? 
           A     He started coming toward me again, but then someone came into the room. 
           Q     Do you recall who came into the room? 
           A     Yes,  It was the butler. 

                                                                           13 
                                   *   *   * 
           Q     And did you see the butler have any reaction to what Mr. Trump was doing? 
           A     Yes, I did. 
           Q     And how would you describe that? 
           A     Well, all I know is that when I looked at his face, to me he had the look on 
                 his face like thank God I got in here, like he’s done this before, like he knew 
                 that he saw a shut door and he had to get in there.  That’s my perception of 
                 his...) 
Later in the deposition, she further testified: 
           Q     [earlier portion of question not in record] there a particular piece of the video 
                 you're referring to? 
           A     Lying about never groping or kissing women without their consent and how 
                 he had the utmost respect for women. 
           Q     You consider what he did to you lying and groping women without their 
                 consent? 
           A     I consider that he lied about kissing and groping me without consent.” 
           Ms.  Stoynoff’s deposition presents a different factual situation that Ms. Leeds’. 
Nevertheless, the legal analysis is similar. 
           Rule 413(d)(5)  defines as “sexual assault” for purposes of Rule 415 an attempt to 

     13 
           Stoynoff Dep. (Dkt 135-4) at 21:5-22:25. 
     14 
           id. at 38:2-10. 

                                                                           14 
engage in conduct described in Rule 413(d)(2), among other provisions.  Rule 413(d) requires also 
that any such attempt to constitute a crime under federal or state law.  There are at least two ways 
that Mr. Trump’s conduct as described by Ms. Stoynoff, if it occurred, would have been a crime 
under the law of Florida, where the incident allegedly took place. 
           First, under Florida law, “[t]o establish an attempt to commit a specific intent crime, 
the State must prove a specific intent to commit that crime and an overt act toward the commission 
of the crime.”  It is a crime under Florida law “[a]ctually and intentionally [to] touch[] or strike] □ 
another person against the will of the other.””* This clearly covers Mr. Trump’s alleged kissing and 
groping of Ms. Stoynoff, as Mr. Trump tacitly concedes.'” Rule 415 therefore is satisfied if (1) Mr. 
Trump’s conduct included an “overt act” toward the commission of a state crime (2) taken for the 
purpose of committing a state crime “involving” “contact, without consent, between any part of [Mr. 
Trump]’s body .. . and [Ms. Stoynoff]’s genitals or anus... .”" 
           Second, in the alternative, Florida law makes it a crime for “[a] person 18 years of 
age or older [to] commit[] sexual battery upon a person 18 years of age or older, without that 
person’s consent, and in the process does not use physical force and violence likely to cause serious 

.             15 
           Neal v. State, 854 So. 2d 666, 670 (Fla. Dist. Ct. App. 2003). 
     16 
           Fla. Stat. § 784.03(1)(a)1. 
     17 
           See, e.g,  Stockett v. Tolin, 791 F. Supp.  1536,  1555-56 (S.D. Fla. 1992) (groping and 
           kissing). 
     18 
           Fed, R. Evid. 413(d)(2). 

                                                                           15 
personal injury...  .”'?  Florida law defines “sexual battery” as “oral, anal, or female genital 
penetration by, or union with, the sexual organ of another or the anal or female genital penetration 
of another by any other object,’”° and that definition “makes no mention of intent at all.”*!  For a 
crime that does not have an intent requirement, “{a]ttempt under Florida law requires the defendant 
to commit ‘any act toward the commission of such [crime], but fails in the perpetration or ts 
intercepted or prevented in the execution thereof.’””  As a result, Rule 415 also is satisfied if Mr. 
Trump’s conduct included “an[] act toward the commission” of a state crime “involving” “contact, 
without consent, between any part of [Mr. Trump]|’s body... and [Ms. Stoynoff]’s genitals or anus 
   9923                                              

           Ms. Stoynoff described Mr. Trump kissing her without her consent and against her 
will. That alone would not satisfy any part of Rule 413(d). But Ms. Stoynoff, however, testified also 
that Mr. Trump was lying when he denied “groping” her without her consent ~ in other words, that 
he “groped” her. 
           The word “grope” in the context of human contact means “[t]o touch or fondle (a 
person or part of the body) clumsily or forcefully for one’s sexual gratification, (in later use) esp. 

     19 
           Fla. Stat.§ 794.011(5)(b). 
     20 
           Fla, Stat.§ 794.01 1(1)G). 
     2t 
            United States v. Bemis, No. 8:19-CR-458-T-33AAS, 2020 WL 1046827, at *3 (M.D. Fla. 
           Mar. 4, 2020), 
     22 
            United States v. Lockley, 632 F.3d 1238, 1245 n.6 (11th Cir. 2011) (quoting Fla. Stat. § 
           777.04(1)) (alteration in original). 
     23 
           Fed. R. Evid. 413(d)(2). 

                                                                           16 
without consent.”*  And while “groping”  anyone without consent is sexual misconduct,  and 
colloquially might be referred to as sexual assault, Rule 413(d) is not that broad.  It defines “sexual 
assault” as unwanted contact, or attempted unwanted contact, only with particular parts of the 
anatomy. The portion of Ms. Stoynoff’s deposition now before the Court does not specify what part 
of her anatomy she claims that Mr. Trump groped or attempted to grope.  And if Ms. Stoynoff’s 
account of the parts of her body that Mr. Trump allegedly touched were the only relevant evidence, 
it would be debatable whether that conduct alone would satisfy Rules 413(d) and 415.” But itis not 
alone. 
           As an initial matter, the circumstances of the alleged encounter are relevant.  Mr. 
Trump, she says, invited Ms. Stoynoff — who was at Mar-a-Lago to interview Mr. Trump and his 
wife — to an unoccupied room and closed the door behind her, actions indicative of a desire for 
privacy.  She went on to say that he immediately, and without her consent, began kissing Ms. 
Stoynoff and pressed on as she resisted his advances, These actions are suggestive of a plan, formed 

     24 
           “Grope.”  OXFORD ENGLISH DICTIONARY (available at https://www.oed,com/view/Entry/ 
           81745 ?rskey=awTSe&result=3 &isAdvanced=false#eid) (last visited Feb. 28, 2023); see 
           also  “Grope.”  MERRIAM-WEBSTER’S  UNABRIDGED  DICTIONARY    (available  at 
           https://unabridged.merriam-webster.com/unabridged/grope) (“to pass the hands over (the 
           person of another) for the sake of sexual pleasure”) (last visited Feb. 28, 2023). 
     25 
           In any case, the Court may not assume for purposes of Mr. Trump’s motion that the plaintiff 
          □  could not lay a better foundation for admissibility of Ms. Stoynoff’'s account by adducing 
           evidence concerning the particular parts of Ms. Stoynoff’s anatomy Mr. Trump groped or 
           attempted to grope.  Mr. Trump therefore would not have satisfied his burden, on the in 
           limine motion, to establish that “the evidence is clearly inadmissible on all potential 
           grounds.” Jean—Laurent v. Hennessy, 840 F. Supp.2d 529, 536 (E.D.N.Y. 2011) Gnternal 
           quotation marks and citation omitted). It is worth noting that Mr, Trump concedes that this 
           is the applicable standard.  Def. Mem. (Dkt 131) at | (citing Highland Capital Mgmt. v. 
           Schneider, 379 F. Supp. 2d 461, 471 (S.D.N.Y. 2005) ( “Evidence should be excluded on 
           a motion  in limine  only when the evidence  is clearly  inadmissible  on all potential 
           grounds.”) (citation omitted). 

                                                                           17 
before Mr. Trump invited Ms. Stoynoff to the unoccupied room and closed the door behind her, to 
take advantage of that privacy and to do so without regard to Ms. Stoynoff’s wishes. Moreover, the 
Access Hollywood tape and the testimony of Ms. Leeds are additional evidence that a jury would be 
entitled to consider in deciding whether to infer that the ultimate goal of Mr, Trump’s alleged actions 
with Ms. Stoynoff was to bring his hands or other parts of his anatomy into contact with Ms. 
Stoynoff’s most private parts. 
           To be sure, the Court does not now draw any such inference. And Mr. Trump has 
denied publicly any such occurrence ever happened.  He of course will be entitled to do so before 
the jury. And the jury could credit Mr. Trump’s testimony in preference to Ms. Stoynoff’s. But that 
is for another day. The Court’s only function at this stage is to decide whether the evidence of record 
is sufficient for a jury reasonably to conclude that Mr. Trump at least attempted to have contact with 
Ms. Stoynoff that, if it had occurred, would have met the requirements of Rule 413(d). That standard 
has been satisfied.” 

     Rule 403 
           Mr, Trump contends that the testimony of Mss. Leeds and Stoynoff, even if otherwise 
admissible under Rules 415 and 413(d), should be excluded under Rule 403.  He argues that the 
circumstances of the alleged assaults on these two women are “vastly different” from those on Ms. 
Carroll, that the events allegedly involving these women were not close in time to the alleged 
incident with Ms. Carroll, that each was the only alleged assault on the alleged victim, and that the 
testimony of Mss. Leeds and Stoynoff is unnecessary because it “is relevant only to the extent 

     26 

                                                                           18 
Plaintiff lacks sufficient evidence to independently establish the merit of her claims.””” 
           Rule 403, upon which Mr. Trump reltes, provides: 
           “The court may exclude relevant evidence if its probative value is substantially 
           outweighed by a danger of one or more of the following: unfair prejudice, confusing 
           the issues, misleading the jury, undue delay, wasting time, or needlessly presenting 
           cumulative evidence.””* 
And Mr. Trump correctly points out that courts considering Rule 403 objections to relevant evidence 
consider a number of factors, including 
            “(1} the similarity of the prior acts to the acts charged, (2) the closeness in time of 
           the prior acts to the acts charged, (3) the frequency of the prior acts, (4) the presence 
           or lack of intervening circumstances, and (5) the necessity of the evidence beyond the 
           testimonies already offered at trial.” ” 

But, as the text of the rule itself makes clear, the probative value of the evidence that the movant 
seeks to exclude weighs heavily in the equation.  And that is the appropriate starting point here. 
           This is, in the vernacular, is a “he said, she said” case, and it is one that turns on an 
alleged event more than two decades ago. There will be no physical evidence supporting either side 
at trial. Mr. Trump repeatedly has denounced Ms. Carroll asa liar and the perpetrator of a hoax, and 
he has done so on national television and with the benefit of his status in the public and political 
TT 
           Def, Mem. (Dkt 131) at 9-11. 
     28 
           Fed. R. Evid. 403. 
     29 
            United States v. Spoor, 904 F.3d 141, 153-55 (2d Cir, 2018). 

                                                                           19 
spheres. Ms. Carroll’s case, absent these witnesses, likely will depend upon her personal credibility 
in the courtroom, the credibility of two witnesses whom she allegedly told of the alleged rape 
contemporaneously, and the jury’s assessment of Mr. Trump’s personal credibility.  Mr. Trump’s 
alleged sexual assaults on Mss. Leeds and/or Stoynoff, if the jury is permitted to hear their testimony 
and believes it, is likely to weigh heavily in the jury’s determination,  In consequence,  their 
testimony, if received, could prove quite important.  Indeed, that surely is why Mr. Trump seeks to 
exclude it.  So it is in that context that the usual Rule 403 factors warrant attention. 
           Mr. Trump’s attempt to minimize the similarity between his alleged actions with 
respect to Ms. Leeds and Ms. Stoynoff, on the one hand, and Ms. Carroll on the other is not very 
persuasive.  The alleged acts are far more similar than different in the important aspects.  In each 

case, the alleged victim claims that Mr. Trump suddenly attacked her sexually,  In the cases of Ms. 
Carroll and Ms, Stoynoff, he allegedly did so in a location after closing a door behind him, which 

gave him privacy.  In all three cases, he allegedly did so without consent.  So it is only Ms. Leeds’ 

case that differs in an important particular -- the fact that the alleged assault occurred on an airplane 
in circumstances in which, despite the fact that both she and Mr Trump were in bulkhead seats, 
afforded little privacy. 
           Mr. Trump effectively concedes that there were no intervening circumstances here 
that weigh in his favor.” Nor is the fact that Mr. Trump did not allegedly assault either Ms. Leeds 

or Ms. Stoynoff more than once each of any significance.  There is no reason to suppose that he 
encountered either of them with sufficient frequency for repeated assaults on either to have been 

     30 
           Def. Mem. (Dkt 131) at 11. 

                                                                           20 
within realm of possibility. 
           His best argument is that these three alleged incidents were widely separated in time: 
Ms. Leeds in 1979, Ms. Carroll in the mid-1990s, and Ms. Stoynoffin 2005, And that weighs in his 
favor.  On the other hand, Rule 415, unlike other provisions of the Rules of Evidence, contains no 
temporal limits on the admissibility of evidence of other sexual assaults in a sexual assault case. The 
legislative history makes clear that this was no accident.*!  So, while the limitations of Rule 403 
certainly apply with respect to sexual assault evidence in cases like this, they perhaps must be 
applied with due regard for Congress’s deliberate failure to impose temporal limits. 
           In all the circumstances, Mr. Trump has net demonstrated persuasive reason to 
believe that there is any risk of “unfair prejudice, confusing the issues, misleading the jury, undue 
delay, wasting time, or needlessly presenting cumulative evidence,” let alone any risks that would 
substantially outweigh the probative value of the evidence of Mss. Leeds and Stoynoff. 

The Campaign Excerpts 
           Ms. Carroll seeks to offer in evidence seven excerpts from statements by Mr. Trump 
during the 2016 presidential campaign.  The excerpts vary in length and average 47 seconds each. 
And all of them share similar characteristics — assertions by Mr. Trump that women who have 
accused him of sexual assaults were lying and, in several of the cases, words or implications that the 
women’s looks are not appealing to Mr. Trump. In short, he spoke of these other women essentially 
oo 
           140 Cong. Rec. at 512990 (statement of Sen. Robert Dole) (“No time limit is imposed on 
           the uncharged offenses for which evidence may be admitted; as a practical matter, evidence 
           of other  sex  offenses  by  the  defendant  is  often  probative  and  properly  admitted, 
           notwithstanding substantial lapses of time in relation to the charged offense or offenses.”). 

                                                                           21 
in the same terms as he allegedly defamed Ms. Carroll.  Mr. Trump seeks to exclude them as 
irrelevant and under Rule 403. 
           These excerpts do not allege sexual assault, so Rules 413 and 415  are irrelevant. And, 
except under Evidence Rules 413 through 415, “[ejvidence of any other crime, wrong, or act is not 
admissible to prove a person’s character in order to show that on a particular occasion the person 
acted in accordance with the character.”**  But Rule 404(b) provides that “[t}his evidence may be 
admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, 
knowledge, identity, absence of mistake, or lack of accident.””? And that is where Ms. Carroll hangs 
her hat.  She argues that these excerpts are appropriate 
           “to establish Trump’s modus operandi of categorically denying accusations and his 
           intent and knowledge when making those statements.  Indeed, this modus operandi 
           is plain to  see.  When a woman accuses Trump,  he  unconditionally denies the 
           allegations, accuses the woman of fabricating her story, and declares that she was too 
           ugly for him to have sexually assaulted in the first place. [citations omitted]  This is 
           the exact pattern Trump followed when he first responded to Carroll’s accusations 
           in June 2019..." 
She goes on to contend that this evidence is “highly relevant” because, “[g]iven the similarities 
between how Trump responded to all three women, the pattern makes it more likely that Trump lied 
OO 
           Fed, R. Evid. 404(b)(1). 
     33 
           Fed. R. Evid. 404(b)(2). 
     34 
           Pl. Mem. (Dkt 138) at 14. 

                                                                           22 
when he denied assaulting Carroll.’ 
           The problem with Ms. Carroll’s argument, even assuming sufficient similarities, is 
that these speech excerpts would not tend to make it more likely that Mr. Trump lied when he denied 
assaulting Ms. Carroll wless perhaps the evidence establishes that he lied when he denied assaulting 
each of the other women to whom he responded.  The jury might or might not so find with respect 
to Ms. Leeds and Ms. Stoynoff, who are the obvious subjects of some of the excerpts.  But it is not 
now clear that Ms. Leeds and Ms. Stoynoff were the only subjects of these remarks,  Nor is it clear 
that the jury could make similar findings with respect to any others.*® 
           In the circumstances, the Court will defer any ruling on the admissibility of these 
excerpts until trial. 

Emotional Harm 
           This action ts exclusively for defamation allegedly committed in 2019.  Ms. Carroll 
here secks damages solely for that defamation.  In Carroll HH, in contrast, the alleged rape itself as 
well as for a different allegedly defamatory statement allegedly made in October 2022. Mr. Trump 
seeks to preclude in this case, the case limited to alleged defamation, “any evidence of purported 
emotional harm related to the alleged incident,” referring to the sexual assault.*’  On this point, the 

     35 
           fd, at 15, 
     36 
           Ms. Carroll’s fallback position—i.e., that the excerpts are “evidence of Trump’s knowledge 
           regarding the falsity of his statements about Carroll, and his intent to lie and act with malice 
           when making those statements”, id. -- amounts to the same argument 
     37 
           Dkt 131 at 10. 

                                                                           23 
parties are speaking past each other. 
           “To  the  extent  that  Trump  seeks  only  to  preclude  Carroll  from  claiming  as 
compensatory damages, the emotional and psychological harm that the sexual assault caused her, 
Carroll does not disagree.’”**  Compensatory damages for the sexual assault are available, if at all, 
only in Carroll II, which is brought under New York’s Adult Survivors Act.  But evidence of 
emotional and psychological harm allegedly caused by the alleged sexual assault may be relevant 
in this action, as it may go to why Ms. Carroll did not report or speak out about the alleged sexual 
assault earlier than she did and perhaps for other reasons.  Mr. Trump does not suggest any reason 
that such evidence should be excluded. 

Conclusions 
           For the foregoing reasons, Mr. Trump’s in imine motion (Dkt 130) is denied in all 
other respects.  This ruling is without prejudice to renewing his objection to the campaign speech 
excerpts in the event they are offering at trial. Unless otherwise ordered, those excerpts shall not be 
mentioned in opening statements. 
           SO ORDERED. 
Dated:       March 10, 2023 

                                                 Lewis A. iL 
                                              United States District  Judge 

     38 
           Pl. Mem. (Dkt 138) at 17 (emphasis in original).