The federal criminal trial of Sean Combs is overwhelmingly likely to end with the fallen hip-hop mogul’s conviction. The charges, brought by federal prosecutors in the Southern District of New York, are serious: a wide-ranging racketeering conspiracy (including allegations of arson, kidnapping, and drug trafficking) and various sex trafficking offenses. The evidence, including testimony from four alleged victims and surveillance video of a vicious physical assault, seems sound. And the vast majority of federal trials result in guilty verdicts – typically around 80 percent according to the broad-lens data, and my own experience. 

But upon close inspection, we can see subtle cracks in the prosecution’s case. Combs won’t be outright acquitted; I don’t see any way twelve New York jurors vote unanimously to let him off the hook entirely. But this won’t be a cakewalk for prosecutors, who need to step carefully around certain traps they’ve embedded in their own indictment. If prosecutors focus on the prurience and scandal of it all more than the technical criminal charges, then Combs has multiple routes to a palatable defense result. 

Quick, what’s the single most memorable piece of evidence in this case? That’s right: the “1,000 bottles of baby oil and lubricant,” essential to the infamous “Freak Off” sex benders depicted in the indictment. (Runner-up: the intravenous drip used to rehydrate participants.) It all makes for golden late-night comedy fodder and, sure, it offends our collective prim-and-proper sensibilities. 

But there’s nothing inherently criminal about a thousand bottles of baby oil, or ten thousand, or three-ways (or four-ways), or wild sex parties. Indeed, it seems this will be a primary defense: Maybe Combs was a freak, maybe he had outrageous sexual appetites, maybe he even treated people horribly – but none of that is criminal. If prosecutors lean too heavily into the nastiness of it all – and the indictment does tend towards graphic and at times gratuitous descriptions of sex – then they risk falling into a trap of their own making. 

And even if Combs was involved in a long-term, physically abusive relationship with Cassie Ventura (the primary prosecution witness) and other women, that conduct would likely violate state-level assault laws – but not necessarily the specific federal ones he is charged under. Prosecutors must show more than a series of domestic assaults committed within toxic relationships. They have alleged that, for over a decade, Combs led a sprawling enterprise that committed an interconnected spate of crimes — sex trafficking, arson, kidnapping, obstruction, and others — to promote and protect his wealth and public reputation. Juries are good at distinguishing between bad conduct and criminal conduct, and you can bet Combs’s defense team – led by Marc Agnifilo, a former federal prosecutor and experienced defense attorney – will underscore the distinction. 

Relatedly, watch for the defense to argue that prosecutors have targeted Combs and now hold him up as the mastermind of an alleged criminal enterprise consisting of… one person. The lead charge against Combs is racketeering conspiracy, which typically involves multiple players; the “O” in the acronym “RICO” stands for “organization,” after all. I charged federal racketeering cases frequently at the SDNY; they ranged from five or six defendants on the low end to 25 on the high side. Yet Combs stands alone, a racketeering enterprise of one. While the indictment references other participants in the alleged criminal operation – some of whom have been given free rides in exchange for their testimony – nobody else has been charged. Combs will be seated alone (with his lawyers) at the defense table, alleged ringleader of, well, himself. From the prosecution’s perspective, a one-man racketeering conspiracy is like a one-man band. It’s technically possible, but it’s far from ideal. 

Watch for Combs’s defense to exploit that charging structure and claim that prosecutors have joined a self-serving pile-on. The defense will argue that the victims – some of whom had long-term relationships with Combs – saw dollar signs when the civil suits started flying in 2023, and joined in to get their piece of the action. At the same time, the defense argument will go, the prosecutors are engaging in a bit of trophy-hunting of their own. They singled out Combs because he’s famous but deeply unpopular, because he has faced scurrilous allegations in civil suits and the media has demanded a scalp, and because these DOJ hotshots want to snare a headliner to add to their resumes. 

Trust me: I’ve heard (and been subjected to) arguments just like this one in federal court, and I’m not particularly moved, given the evidence as we know it against Combs. But the defense game here isn’t necessarily to persuade all twelve jurors that Combs is innocent – that would be impossible – but rather to hook just one or two jurors who might reject the prosecution’s tactics, or who might sympathize somehow with Combs. If the defense team can do that, the jury might return a surprising verdict. 

First, split juries sometimes compromise to reach mixed verdicts. For example, Combs faces the racketeering charge plus two counts of “Sex Trafficking by Fraud, Force or Coercion” (which carries a mandatory minimum of fifteen years in prison and a maximum of life) and two counts of “Transportation to Engage in Prostitution” (which carries no minimum sentence and a ten-year max). If the jury finds Combs guilty only on the lesser prostitution offenses, he’d likely face a sentence of a few years – but not decades behind bars. That would be a win for Combs by any reasonable measure. 

Or the jury could hang; even one holdout out of twelve jurors tanks the case. Hung juries are rare, but the risk of a deadlock is inherently higher when a celebrity defendant is involved. If one juror is enamored with Combs or his fame, or if a juror decides Combs has been unfairly targeted because of his celebrity or his wealth or his race, then the stage could be set for a deadlock. While a hung jury is a “tie” of sorts – prosecutors can choose to re-try the case – take my word for it, having endured a couple deadlocked juries myself: anytime the jury hangs, the defense team rejoices while prosecutors mourn. 

If I was supervising this case back at the SDNY, my advice to my fellow prosecutors would be to keep it lean and keep it focused. Don’t dwell for long on the sex stuff. Don’t parade around the courtroom with the lube and the IV drips. Don’t sermonize or finger-wag. We want to vilify this defendant, sure, but don’t ever let it seem like we’ve got it in for him, or we resent his wealth and fame. Focus sharply on the victims and the violence. The jury won’t convict Combs merely if they believe he’s horrible and greedy and grotesque; they’ll convict him only if prosecutors prove he’s a criminal, and that he broke the specific laws they’ve chosen to charge.