Federal prosecutors want to tighten their case against Sean Combs, asking a judge to strike language regarding “attempted” kidnapping and arson from jury instructions, according to court documents filed Tuesday.
While Combs still faces the same racketeering conspiracy and sex trafficking counts — which includes the kidnapping and arson allegations — prosecutors said in a filing to U.S. District Court Judge Arun Subramanian that they understand “the Court’s desire for streamlined instructions” to jurors.
“Specifically, the Government has removed instructions from the charge relating to attempted kidnapping under both California and New York law, attempted arson under California law, and aiding and abetting sex trafficking,” the note said.
Closing arguments in the Combs case are set for Thursday.
“If you look at the letter, what the government is saying is that they’re dropping what I call the inchoate, the attempt versions of those crimes,” NBC News legal analyst Danny Cevallos said.
“I don’t think they’re abandoning arson and kidnapping. What they’re abandoning are what we call the inchoate crimes, because inchoate crimes are complicated, and they (jurors) may struggle with differentiating between attempted kidnapping and kidnapping.”
Any effort to show an “attempted” bad act could confuse jurors when the prosecution is pressing for those “completed” actions, said former federal prosecutor Nadia Shihata.
“They’re no longer going to proceed under the ‘attempted’ theory of liability,” Shihata said. “So they’re, I assume, going to argue that this is a completed kidnapping, it’s a completed arson.”
The removal of an “attempted” crime could also signal a prosecutor’s confidence in having shown that the defendant succeeded in accomplishing the charged offense, said New York criminal defense lawyer Maria Cruz Melendez.
“If the completed acts have been proven in their mind (of the prosecution), then there’s no need to have the alternative instruction,” Melendez said.
“It’s clear that the judge in this case is asking them to streamline, and if they (prosecutors) feel confident in their case, that they’ve proven the completed act, then you don’t need aiding and abetting. You don’t need an attempted.”
The definition of “attempted” crimes has been vexing lawmakers and attorneys since their days in law school, according to Cevallos.
“It’s one of the most interesting law school discussions about the attempt, when does an attempt begin?” Cevallos said. ” You’ve obviously thrown a Molotov cocktail. But when does it begin? Does it begin when you go to the liquor store and buy the grain alcohol?”
The arson allegation stems from evidence that someone tossed a Molotov cocktail into Kid Cudi’s car in early 2012. The rapper, born Scott Mescudi, had dated Combs’ girlfriend Cassie Ventura.
Prosecutors had accused Combs of breaking into Kid Cudi’s Hollywood Hills home in 2011, before the attack on his Porsche in 2012.
Ventura had testified that a jealous Combs had threatened to blow up Kid Cudi’s car.