Is there going to be a superseding indictment?
There are indicators to suggest one may be forthcoming.
For instance, the Government does not want to reveal to the Defense everything contained in the latest trio of search warrants and affidavits used to obtain them.
Last month, when the Government turned over redacted version of new search warrants on Keith Raniere and Clare Bronfman’s email accounts and Nancy Salzman’s electronic devices, entire pages of the warrants were excluded.
The redacted portions remain under seal until a further order from the Court.
The Government claims the sealing of portions of the warrants is due to their ongoing investigation. The fact of an ongoing investigation is evidence that a superseding indictment is on the horizon.
The Defense is seeking to view the search warrants in their entirety since within the warrants and the affidavits may lie crucial information needed to prepare for trial.
It may also yield hints as to what – if any – new charges the Feds may be contemplating bringing against the present NXIVM defendants and perhaps others.
There are three search warrants in question:
- An email account of Keith Raniere: email@example.com
- An email account of Clare Bronfman: firstname.lastname@example.org
- Electronically stored information on electronic devices seized from Nancy Salzman’s home at 3 Oregon Trail, Waterford, NY.
There have been two sets of search warrants on these email accounts and on Salzman’s devices.
In a search warrant, and the underlying affidavit presented to a judge to get the warrant, alleged crimes and arguments of probable cause are put forth to persuade the judge to sign the warrant.
Did the second set of search warrants put forth additional alleged crimes, expanding upon what is being searched for in already seized email accounts and devices?
Here is the timeline so far:
January 18, 2018: The Government obtained a search warrant on Keith Raniere’s Yahoo email account based on certain alleged crimes.
March: The Government obtained search warrants based on alleged crimes for Nancy Salzman’s house and Clare Bronfman’s Gmail accountbased on alleged crimes.
That was the first series of search warrants.
The second series occurred in October.
October 15: The Government obtained additional search warrants – probably based on alleged crimes not named in the first search warrants – on Raniere and Bronfman’s email accounts.
October 24: The Government obtained an additional search warrant -probably based on alleged crimes not named in the first search warrant – on Salzman’s devices.
Since these latest search warrants were obtained three months after the Superseding Indictment, it is possible they are in furtherance of a new superseding indictment – that is yet to come – rather than to search for additional evidence of already charged crimes.
November 21: The Government provided redacted search warrants to Raniere, Bronfman, and Salzman.
November 26: The defendants requested the Government produce unredacted versions of the search warrants.
December 4: The Government filed a request for a protective order arguing that they do not seek a full unsealing because of the need to protect the integrity of their ongoing investigation, including the safety of witnesses, and prevent interference and other obstruction.
They seek to disclose the unredacted warrants one month prior to the date set for suppression motions. That date has not been set. Suppression motions are made by the defense to exclude certain evidence from being introduced at trial.
December 5: Raniere’s attorneys – Marc Agnifilo and Terry Geragos – writing on behalf of Raniere, Bronfman, and Salzman – oppose the Government’s proposal.
They argue, “The Government’s ongoing investigation, whatever that may mean at this stage, cannot trump a defendant’s right to prepare for imminent trial.”
The current trial date is set for March 18, 2019. It was originally set for October. The superseding indictment in July pushed the trial date forward by five months.
The Defense writes, “the Government has used its purported ongoing investigation to disrupt established trial dates and is now using it to keep important information from the defense…. ‘[O]ne month prior to the due date for suppression motions’ … is not workable for the defense and is not in keeping with the practice of this District…. The defendants are facing serious racketeering and sex trafficking charges and should have the affidavits in order to conduct investigations into the charges against them.”
As to witness safety, Raniere’s attorneys point out that Bronfman and Salzman are subject to home detention “without the ability to communicate with anyone affiliated with NXIVM or anyone who was on the ‘Stripe Path.’ Raniere has been incarcerated in MDC Brooklyn and only communicates with his attorneys… The released defendants have diligently adhered to their bail conditions and the Government could never put forward credible evidence that any witness has been in danger or has been threatened.”
The defense also seems to argue that the Government is being deceptive. They write that the second set of search warrant affidavits are “…based on information that the Government has already investigated (without the need for the devices and the email accounts) and is now being used as a basis to find more information in the defendants’ devices and email accounts.”
Raniere’s attorneys say the “defendants are concerned about not having sufficient time to independently investigate and challenge the search warrant applications if they are delayed until one month before suppression motions are due, especially where we are only three months from trial.”
Of course, if there is another superseding indictment, the trial will be likely be postponed by months – perhaps to late summer or early fall of 2019.
To date, the government has produced over 250,000 bates-numbered pages of discovery, and forensic copies of devices containing another approximately 1 million documents and approximately 1,000 audio/visual files for the defense.
At the last hearing, on December 6th, the judge requested the defense attorneys to state on the record that they agreed this case is a ‘complex case.”
This suggests that, even without a superseding indictment, the trial date of March 18, 2019 may be postponed.
Oral argument on the Initial Motions is scheduled for January 3, 2019.
Throughout the proceedings, the 800-pound gorilla in the courtroom is a looming superseding indictment. If this occurs, say perhaps in January, the arguments about unredacted search warrants being released now or later will be inconsequential.
A superseding indictment will reveal new charges – and perhaps new defendants. Reset the clock. Cause a brand new preparation for trial.
In due course, the present unredacted search warrants will be produced for the defense. There may be further search warrants.
At some point, the ongoing investigation will be over. All charges against all people involved with NXIVM will have been made.
The recent addition to the prosecution team of Assistant US Attorney Kevin Trowel – whose work has been in the Public Integrity Section of the US Attorney’s Office – is further evidence that a superseding indictment is coming and that there may be new defendants.
The time will come for the defense to truly bear down on the preparations of the defense of the NXIVM defendants.
Then the billable hours will truly roll.