Today was a bad day for the man known to his followers as Vanguard. His hope for a speedy trial may have gone out the window – or through the bars of his jail cell.
In the matter of the USA v. Keith Raniere, Allison Mack, Clare Bronfman, Kathy Russell, Lauren Salzman, and Nancy Salzman — Judge Nicholas G. Garaufis has designated the case as “complex” and, therefore, not subject to strict time deadlines required under the Speedy Trial Act.
The statute covering this is 18 U.S.§ 3161(h)(7)(B)(ii).
The pertinent language is: “Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section.”
In part, Judge Garaufis wrote:
…At a status conference on September 13, 2018, the Government moved to designate this case as complex… All Defendants oppose the Government’s motion… For the following reasons, the court GRANTS the Government’s motion and designates this case as complex…
“The Speedy Trial Act requires that a defendant be tried within seventy days of the unsealing of the indictment or his initial appearance before a judicial officer, whichever occurs later.” … This seventy-day period is flexible… Courts may… exclude certain periods of time from the calculation of the speedy trial period… Relevant here is the statute’s exclusion for matters in which the ‘”ends of justice’ served by delay ‘outweigh the best interests of the public and the defendant in a speedy trial.'”
…In determining whether Section 3161(h)(7) exclusion is appropriate, courts must consider whether the case is so complex that, absent a continuance, it would be unreasonable to expect adequate preparation for trial or pretrial proceedings…In making that determination, courts consider “the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law…”
The court agrees with the Government that these factors weigh in favor of a complex case designation. First, the superseding indictment charges six defendants with a variety of crimes…Cases with similar numbers of defendants have been designated as complex by courts…Second, this case also involves voluminous and complex discovery…
The Government has estimated that it currently possesses about 10 to 12 terabytes’ of electronic data that may constitute Rule 16 discovery material…As the Government points out… the Second Circuit has compared the capacity of one terabyte of data to that of 12 library floors’ worth of books…
Reviewing and producing these materials has been especially complex and time-consuming due to potential privilege issues. Just within the last two weeks, Raniere and Bronfman have provided the Government with extensive lists of attorneys with whom they may have engaged in privileged communications…As of the most recent status conference, the Government was still waiting for a list of attorneys from Nancy Salzman, which has slowed down its review of her data even further…Additionally, a significant portion of the discovery is in Spanish and requires translation…
Finally, as Raniere’s counsel has suggested, this case involves novel questions of fact or law…(“The Government indicted a very bold case.”)…The crimes alleged in the indictment relate to over a dozen separate schemes and include a racketeering conspiracy that spanned over fifteen years…
Taking all of the factors for Section 3161(h)(7) exclusion together, and based on the representations of both the Government and Defendants, the court concludes that this case is properly designated as complex.
The Government’s motion for a complex case designation is GRANTED. No attorney who has appeared, or will enter an appearance on behalf of, any party in this case may commit to participating in any other trial between January 1, 2019, and June 30, 2019, without first requesting (in writing) and receiving specific permission from this court.
…This period of time is subject to further extension by the court, depending on the completion of Rule 16 discovery.
The January 7, 2019, trial date remains in place pending further discussion at the October 4, 2018, status conference.
After Magistrate Judge [Vera] Scanlon establishes a discovery schedule for the parties, they are DIRECTED to confer regarding pre-trial scheduling and to propose a schedule for all pre-trial matters (built around a January 7, 2019, trial date or a proposed alternate date) before the October 4, 2018, status conference.
Dated: Brooklyn, New York
September 18, 2018
NICHOLAS G. GARAUFIS
‘United States District Judge
Let’s review some of what we learned from this ruling:
The prosecution moved to designate this case as complex. All the defendants opposed the motion. The judge sided with the prosecution — because of the number of defendants, the large amount of discovery, the fact that there are complicated attorney-client privilege issues involved in what the government seized, and that a lot of the discovery materials are in Spanish and require translation.
It’s ironic that the litigious nature of Bronfman-Raniere came back to bite them. Raniere and Bronfman provided the Government with an “extensive lists of attorneys with whom they may have engaged in privileged communications” and demanded that the government carefully take this into consideration in reviewing and preparing discovery. That is delaying the government’s provision of discovery to the defense.
The fact that Bronfman-Raniere used so many lawyers to destroy their enemies is now working against them getting a speedy trial.
In addition, Nancy Salzman has not [as of last week] provided her list of attorneys to the government which slowed down its review of her data.
Also of interest is that a lot of discovery is in Spanish – which means Mexico. Once this is translated, there may be some interesting findings. For years, NXIVM members told me there was extensive cash smuggling from Mexico to the USA.
In addition, Raniere is seemingly hoisted by his own counsels’ petard. They claimed, “The Government indicted a very bold case,” and this fits neatly into “the existence of novel questions of fact or law,” in Section 3161(h)(7) as justification for complex case designation.
Perhaps of greatest interest is the judge ordered all of the 20-plus attorneys representing the defendants not to schedule any other trial between January 1, 2019, and June 30, 2019, without Judge Garaufis’ permission and that “This period of time is subject to further extension by the court.”
While the January 7, 2019, trial date remains in place, pending further discussion at the October 4, 2018, status conference, I believe it is now almost a foregone conclusion the trial will not commence in January.
The judge indicates the trial date may be pushed back by several months when he tells nearly two dozen practicing criminal lawyers that they can’t commit to any other trial for the entire first half of 2019.