Lawyers for Sean "Diddy" Combs hope to persuade a federal appeals court to release the rapper from prison immediately and overturn his conviction on prostitution-related charges by arguing he was engaged in voyeurism and amateur pornography – conduct they say is protected by the First Amendment.
Combs' attorneys, who will appear before the Second Circuit Court of Appeals on Thursday, are also expected to argue US District Judge Arun Subramanian "illegally" considered conduct for which Combs was acquitted when calculating his sentence.
"The district court refused to enforce the jury's verdict," Combs' lawyers wrote in a December court filing.
READ MORE: Heartbroken daughter demands justice for mum after alleged murder
The founder of Bad Boy Records was convicted last July on two counts of transportation to engage in prostitution in violation of the Mann Act for arranging travel for escorts to engage in sex acts with his then-girlfriends, Cassie Ventura and a woman who testified under the pseudonym "Jane".
Combs was acquitted of more than serious charges, including racketeering conspiracy and sex trafficking, after an eight-week trial. Prosecutors alleged Combs coerced the two women into having sex with male escorts, often by supplying drugs to sustain them over multiple days. The marathon sex sessions – which were often filmed – were referred to as "Freak Offs" and "hotel nights".
Combs was sentenced to 50 months in prison in October – though he is scheduled for release in April 2028, according to records from the US Bureau of Prisons. He has been held in federal custody since his arrest in September 2024.
His lawyers argued he should be released because defendants convicted of similar prostitution-related offences typically receive sentences of 15 months. They are also asking the appeals court to acquit Combs of the prostitution-related charges or send the case back to Subramanian for resentencing. Prosecutors are asking the panel of three judges to affirm the conviction and sentence.
Combs' attorneys say prostitution is not defined in the Mann Act and ask the appeals court to reject an "overbroad interpretation of the statute".
"Freak-offs and hotel nights were highly choreographed sexual performances involving the use of costumes, role play, and staged lighting, which were filmed so Combs and his girlfriends could watch this amateur pornography later. Pornography production and viewing of this sort is protected by the First Amendment and thus cannot constitutionally be prosecuted," his lawyers wrote in a court filing.
READ MORE: 'That's a crime': Clooney draws White House fury after Trump accusation
READ MORE: 'Smashed him with a hammer': No bail on hospital attack
"In other words, the term 'prostitution' in the Act should be limited to those situations where a paying customer engages in sex with the person being paid," his lawyers wrote.
Prosecutors called Combs' argument "meritless".
"Combs is entirely differently situated from adult film distributors: He hired and transported commercial sex workers to have sex with his girlfriends for his own sexual gratification, sometimes directly participating in the sex acts," prosecutors wrote in a response filed in February.
To side with Combs, prosecutors said, would mean "any defendant who transported others to engage in prostitution could escape liability simply by watching or filming the sex".
Combs' attorneys also say Subramanian "largely ignored" new guidelines from the US Sentencing Commission prohibiting acquitted conduct from being considered when calculating advisory sentencing guidelines.
Prosecutors said the new guidelines apply when calculating the sentencing range, not determining the sentence. In the latter, judges are allowed to consider other factors, including the character of the defendant.
They argued Subramanian was "surgically focused" on conduct relevant to the Mann Act counts in determining the sentencing range.
"As the District Court correctly observed, '[n]othing in the guidelines suggests that the commission intended for courts to ignore conduct relevant to establishing the offence in question, so a more restrictive reading of this language is untenable,'" prosecutors wrote.
NEVER MISS A STORY: Get your breaking news and exclusive stories first by following us across all platforms.
- Download the 9NEWS App here via Apple and Google Play
- Make 9News your preferred source on Google by ticking this box here
- Sign up to our breaking newsletter here
