Legal

You know the story: A superstar musician, dogged by rumors of abuse, is finally served with a sweeping federal criminal case – one that accuses him of running a criminal enterprise centered on his own sexual desires.

But are we talking about Sean “Diddy” Combs or about R. Kelly?

In many ways, the charges unveiled last month against Combs mirror those brought in 2019 against Kelly, a chart-topping R&B singer who was sentenced to 30 years in prison in 2022 after a jury convicted him of decades of abuse. There are key differences – most notably, Combs is not accused of victimizing minors – but the themes and charges echo those in the earlier case.

So to understand more, we turned to the best experts possible: Nadia Shihata and Maria Cruz Melendez, two of the lead prosecutors who tried the case against Kelly. Now in private practice, Shihata and Cruz Melendez discussed the Combs case with Billboard in separate interviews – about how a case like this is built, who else might face charges, and what the fight ahead will look like.

“Every case is different, but there are certainly parallels,” Shihata says.

What are the charges against Diddy?

Like with Kelly, prosecutors have built their case against Combs under the Racketeer Influenced and Corrupt Organizations Act – the federal “RICO” statute you’ve probably heard mentioned in mob movies or “Breaking Bad.” He’s facing other charges, too, like alleged violations of two different federal sex trafficking laws, but the core narrative is that Combs built a sprawling criminal enterprise – only one aimed not at illegal gambling or drug trafficking, but at facilitating his own sexual abuse.

“While most people associate racketeering with the mafia, the statute’s reach is not limited to what many may think of as traditional crime syndicates,” says Cruz Melendez, now in private practice at the top law firm Skadden.

Enacted in the 1970s, RICO allows prosecutors to target an entire illicit organization, sweeping up many seemingly unrelated crimes committed by multiple people over an extended period of time and charging them as a single criminal conspiracy. It was designed to help prosecutors target organized crime, where bosses often insulate themselves from the actual, individual crimes.

Unsurprisingly, the law has been used repeatedly over the years to target mobsters, including Gambino family members like John Gotti. It’s also been brought to bear against corrupt judges like those behind the “kids for cash” scandal, as well as white supremacist groups, drug cartels, terrorist groups and financial fraudsters.

But in the years since the start of the #MeToo movement, federal prosecutors in New York have begun turning RICO toward another target: powerful men who allegedly create such criminal enterprises around mass-scale sexual abuse.

In 2019, a federal jury in Brooklyn convicted Keith Raniere, the leader of a cult in upstate New York called Nxivm, of violating RICO by turning vulnerable women into sexual “slaves.” Weeks later, the same office filed their indictment against Kelly, alleging the star and his co-conspirators had worked together to “recruit women and girls to engage in illegal sexual activity with Kelly.”

That type of RICO case is novel but not altogether surprising, according to Shihata, who says its simply took an increased recognition of “how powerful men at the height of their success often commit and conceal these crimes.”

“They don’t do it alone,” says Shihata, who now runs her own firm Shihata & Geddes LLP. “It’s often with the help of an entourage of employees, sycophants, and yes-men willing to do their bidding and look the other way.”

In cases like those against Kelly and Combs, RICO provides powerful advantages for the government versus more traditional means of prosecuting sexual abuse. It allows prosecutors to cite years-old conduct that would otherwise be barred under statutes of limitations, and lets them tell a more comprehensive story to jurors — one that’s less susceptible to a ‘he said, she said’ defense narrative about individual incidents.

“It’s like the difference between watching a full TV series versus just one scene of one episode,” Shihata says.

How will prosecutors make their case?

To prove a RICO case, prosecutors needs to show that such a criminal enterprise existed and Combs participated in it by engaging in at least two of the so-called predicate acts they list in their indictment – the many individual crimes that make up the overarching pattern of illegal conduct.

Of course, those alleged predicates include the core claims of abusive sexual behavior, like the elaborate “freak off” sex parties that are repeatedly detailed in the indictment. But they also include everything else that enabled that conduct and prevented it from being uncovered, including allegations of arson, kidnapping and bribery, as well as obstruction of justice by pressuring witnesses to remain silent.

To support those claims, prosecutors say they’ve already interviewed more than 50 witnesses who have provided “detailed, credible, and corroborated information” against Combs, including “many of whom saw or experienced the defendant’s abuse.”  And the feds say they expect the witness list to “continue to grow” now that the case is public.

The government will back up that testimony with digital evidence, which it says it has already pulled from over 120 cellphones, laptops and other electronic devices, as well as with physical evidence — like the infamous thousand bottles of baby oil that made headlines last month. And then there’s the 2016 video of Combs assaulting his then-girlfriend Cassie Ventura, which prosecutors specifically cite in court filings.

That same approach is what worked during the Kelly trial, when jurors heard testimony from 45 witnesses over 20 days, including eight of his former employees and 11 of his alleged victims, backed up by plenty of evidence, including letters that prosecutors alleged Kelly had forced his victims to write.

Having been at the center of that prosecution, Shihata says she expects Diddy’s prosecutors to focus on telling “the story of everything that happened leading up to the sexual activity,” including threats, isolation, financial dependence, blackmail and other actions that allegedly forced women to have sex when they didn’t want to.

“These are the tools of coercive control,” Shihata says. “In the R. Kelly case, we called it the ‘Predator’s Playbook’.”

How will Combs defend himself?

As in any American criminal case, the burden will be on the government to prove beyond a reasonable doubt that Combs actually committed the many things he’s been accused of. His lawyers don’t need to present their own sweeping narrative or prove his innocence; they just need to poke enough holes in the case against him that jurors aren’t certain he’s guilty.

One key way they might try to do that is to argue that his sexual behavior, while certainly weird and unseemly, was ultimately still consensual. At a bail hearing last month, Diddy’s attorney Marc Agnifilo hinted at that argument, telling the judge that the star and then-girlfriend Cassie had brought sex workers into their relationship because “that was the way these two adults chose to be intimate.”

“One of the central issues of the case will be whether the alleged victims engaged in some of the conduct at issue consensually with Combs and others,” says Cruz Melendez. “Counsel’s statements suggest that they intend to present their own witnesses who will counter victim narratives that they were forced or coerced.”

The issue of consent is actually a key point of distinction between the new case against Combs and the earlier case against Kelly. Since Kelly’s charges largely dealt with sex with minors – which is illegal under any circumstances – such a defense would not have succeeded.

With consent at play in the Combs case, Shihata says his defense attorneys will likely try to narrow the case down to specific incidents that undercut the prosecution’s broader narrative. “In all likelihood, the defense will try to focus the jury on snapshots in time,” she says, “arguing that on a particular day, a particular victim consented to sexual activity.”

Combs’ attorneys will also likely argue that the alleged misconduct simply doesn’t meet the definition of racketeering – and that prosecutors are abusing RICO to make their case. In appealing Kelly’s conviction, for instance, his attorneys have argued that the government is stretching the federal statute “to the point of absurdity” by using it in such cases, potentially turning things like college fraternities into illegal RICO conspiracies.

One crucial question ahead of any criminal trial is whether the defendant himself will testify in their own defense. It’s often a terrible idea – taking the stand can subject a defendant to withering cross-examination from prosecutors, and it can backfire badly if jurors don’t like what they see and hear. That’s probably why R. Kelly didn’t testify in either of his two federal criminal trials.

But according to Agnifilo, Combs himself currently plans to take the stand. In an interview with TMZ, the attorney said “I don’t know that I could keep him off the stand” and that he is “very eager to tell his story.”

“He has a story that I think only he can tell in the way he can tell it in real time,” the attorney said in the interview, seemingly referring to his relationship with Cassie. “And it’s a human story. It’s a story of love, it’s a story of hurt, it’s a story of heartbreak.”

Will others be charged?

By its very nature, a RICO case usually centers on allegations involving multiple people. And in their case against Combs, prosecutors repeatedly mention unnamed co-conspirators who allegedly helped the music mogul commit his crimes.

“The defendant arranged freak offs with the assistance of members and associates of the enterprise, including employees of his business,” prosecutors write in one such passage. “When the defendant faced the possibility that his violent and criminal conduct could become public, the defendant and other  members and associates of the enterprise pressured witnesses and victims.”

But despite those repeated references, only Combs is actually charged with committing crimes. That’s another similarity with the Kelly case, where prosecutors detailed years of alleged help by members of his entourage, but only charged the man himself with RICO violations. (Two Kelly associates were charged in a separate case filed in Chicago over different criminal charges.)

For a case that paints a picture of vast group of wrongdoers, the lack of co-defendants might seem strange, but Cruz Melendez says it’s not that unusual: “Prosecuting a single individual for racketeering is certainly not unheard of, particularly where the defendant is the alleged leader or a top-ranking member of the charged enterprise,” she says.

And, crucially, the lack of co-defendants in the initial indictment doesn’t mean nobody else will be charged at some point in the future. At a press conference announcing the charges against Combs, U.S. Attorney Damian Williams warned that the investigation was “very active and ongoing” and that “can’t take anything off the table” as the case moves forward.

“It’s very possible that other members of the enterprise have already been charged under seal and pled guilty pursuant to cooperation agreements, and are helping prosecutors build their case,” Shihata says. “It’s also possible that additional people will be charged in the future as the investigation is ongoing and the government continues to gather information and evidence.”

When will the trial take place? And what happens next?

Anyone accused of a crime in the U.S. has a constitutional right to a speedy trial, which in federal cases means a jury trial must start within 70 days. Though defendants often waive that right to give their attorneys more time to prepare a defense, Agnifilo has declined to do that so far – saying instead that he’s “going to do everything I can to move his case as quickly as possible.”

But that 70-day time limit has lots of exceptions that can still push a trial back, including pre-trial motions, appeals, or simply if the judge decides the case is too complex. The trial could also be delayed if prosecutors file charges against new defendants, or add additional charges against Combs.

Already, Judge Andrew L. Carter has “excluded” several weeks from the speedy trial clock – and both Cruz Melendez and Shihata say there’s little chance Combs’ trial happens in the next few months.

“I don’t expect a case like this to actually go to trial in 70 days or anywhere near that,” Shihata says. “Run-of-the-mill federal cases can take about a year to get to trial, assuming no superseding indictments are filed. But this case may well take longer, particularly given that there appears to be voluminous electronic discovery in the case.”

Until then, both sides will prepare for trial. The government will continue its investigation, potentially using what they find to add new witnesses, evidence, charges or defendants to the case. Shihata also expects the prosecutors to file a motion, like in the Kelly case, to allow jurors to remain anonymous and to let witnesses and victims to use pseudonyms when they testify.

Combs’ team, meanwhile, will continue seeking to have him released on bail while awaiting trial, a request that was twice rejected by lower judges. They’ve filed an appeal to a federal appeals court, where the question remains pending; the outcome of that appeal could play a key role in how fast his lawyers seek to take the case to trial.

In the meantime, Diddy’s attorneys will sift through the evidence prosecutors plan to use at trial, likely filing pre-trial motions asking the judge to dismiss aspects of the case and to exclude certain evidence and witnesses. They’ll also continue conducting their own investigation, seeking to find witnesses and evidence to use to rebut the government’s case.

Whether they can successfully do so – or whether Combs instead faces a similar fate as Kelly — will ultimately be decided by 12 jurors in a Manhattan federal courtroom.

“At the end of the day, the indictment is just the government’s allegations,” Cruz Melendez says. “The government will need to prove its case beyond a reasonable doubt at trial.”