A week before Sean “Diddy” Combs is scheduled to be sentenced, on October 3, for the convictions in his sex-trafficking case, the defense team asked the presiding district judge to overturn the guilty verdicts on the two counts of transportation to engage in prostitution or to order a new trial, arguing that their client had not committed the crimes because he engaged in “commercial voyeurism” and not in prostitution.

It was Combs’s first court appearance since the day of the verdict on July 2, after an eight-week trial at a Manhattan federal courthouse. Unlike during his trial, where the 55-year-old was permitted to wear regular clothing, the one-time billionaire wore a tan prison jump suit on Thursday. His hair had grown since the trial and was visibly gray, as was his beard. He smiled when he entered the courtroom and hugged his defense attorney, Alexandra Shapiro, who led the argument. 

In July, a jury acquitted Combs of the most serious charges, two counts of sex trafficking and racketeering conspiracy — which carry a maximum sentence of life behind bars — and convicted him of the two minor charges, two counts of transportation to engage in prostitution, which each carry a maximum of 10 years, but are usually punished by no more than four to five years.   

The jury found that Combs transported male escorts across state lines to participate in his “freak off” sessions to have sexual intercourse with two of his former girlfriends, Cassandra Ventura and a woman who testified under the pseudonym Jane, while the defendant watched, pleasured himself, and often videotaped the drug-fueled encounters. 

The crime is laid out in the Mann Act, a 1910 federal law that prohibits the interstate or foreign transportation of individuals for prostitution or other “immoral” purposes. But Ms. Shapiro argued that Combs did not engage in prostitution, because he did not financially benefit from it, and he also did not participate in the actual sexual intercourse: he merely watched the consortium of the male escort and his girlfriend and “to watch,” she said, “is not prostitution.”  

Ms. Shapiro reminded the judge that as prosecutors had attempted to establish during the trial that Combs was the “mastermind” of a racketeering conspiracy, meaning the leader of criminal enterprise, and had told the jury that Combs instructed the women to wear “costumes,” wigs, and ordered his staff to decorate the hotel suites where the parties would mostly take place, installing special lighting. 

These “freak offs” were “highly choreographed” and “highly orchestrated” by Combs, Ms. Shapiro said. The women had both testified that there was “role playing.” Thus, Combs acted more like a film director than someone engaging in prostitution, and he was in fact making adult films, which he would later watch together with his girlfriends. “Jane even bought a TV so they could watch the movies together,” she argued. 

“He was a producer of amateur porn,” Ms. Shapiro insisted. “And he was a consumer of amateur porn, whether live or recorded.” 

Her argument led her to the First Amendment. “Adults have the right to consume pornography,” she argued and cited Supreme Court cases where the court affirmed the right to consume entertainment that includes sexually explicit material. Thus, the charges, she said, were a direct violation of Mr. Combs’s First Amendment rights.

But the prosecution disagreed. “It’s just not the case that this defendant is an amateur porn producer,” Assistant U.S. Attorney Christy Slavik fired back. 

Whether Combs filmed the encounters and watched them, the prosecutor argued, was “irrelevant.” The crime lies in the transportation of the escorts. “The Mann Act criminalizes transportation,” she told the judge. 

But the defense attorney pushed back, saying there was no “substantial government interest” in consensual sexual encounters between adults. “Unless the person is running a sex-ring with minors … or sex trafficking,” she said, there was no reason the government should be patrolling a private person’s bedroom.

The district judge, Arun Subramanian, told the attorney “that all prostitution is between consenting adults.”       

Ms. Slavik went on to argue that the purpose of the transportation of the escorts was to give the defendant personal gratification, not to please the participants, the women. Furthermore, she said, the encounters happened behind closed doors, where the women were subjected to violence and drugs.     

“Ms. Ventura was getting punched in the face. Jane was getting hit and kicked. The defendant was providing drugs to all parties,” Ms. Slavik said.

After about 90 minutes of arguments, Judge Subramanian told the parties that he would make his decision “very shortly.”