Whose fault is it? Timeline shows how Nxivm trial got delayed from October to April

The timeline below explains the reason for the delay in the trial of Keith Raniere and the other five Nxivm defendants.

In his bail motion, Marc Agnifilo blames the delay almost entirely on the prosecution but, as we shall see below, Raniere’s own students and disciples, his co-defendants, did much to delay the trial.

But did the prosecution play games as Agnifilo clearly states – in order to postpone the trial? And, if they did, for what purpose?

Raniere sits in jail. He has been in jail for 10 months.  Naturally, he wants to speed up the trial, for he has no chance of freedom outside of an acquittal. There will be no plea deal offered to him that will not come with substantial prison time.

His co-defendants – all women – ranging in age from Allison Mack, 35, Clare Bronfman, 39, Lauren Salzman, 41, Kathy Russell, 60, and Nancy Salzman, 64, are all facing prison if they are convicted.

Some of them might be able to wangle a plea deal, if they chose, that might allow them to escape with minimal or perhaps even no prison time.

This is more likely with Kathy than Allison, for example. And Kathy, Nancy, Lauren, and Clare have asked for a severance – to be tried separately from Raniere and Mack who are charged with the more salacious crimes of sex trafficking.

While Raniere wants a speedy trial, his co-defendants might actually want to take their time and prepare properly for the trial, since they are not in jail – although they are subject to various bail conditions, including home detention [Allison, Clare, and Lauren] and all are wearing ankle monitors.

Nancy and Kathy are free to go out during the day but must be home at night.

To the extent that the Nxivm co-defendants are not pushing for a speedy trial suggests that they are not really being entirely loyal to their Vanguard. They must know he is trying to get to trial quickly and get himself acquitted, yet their lawyers continue to make motions and raise issues that they well know will delay the trial.

Is this part of a greater defense strategy or is it every woman for herself?

As one examines the timeline, one may be able to answer that question. At the very least, one can see how this trial has been delayed from its initial hoped-for date of October 1, 2018 to the present date of April 29, 2019.

Intelligent observers are aware that, if another superseding indictment comes – and it has been all but promised – that will push the trial date back even further into the future.

Here is the timeline:

April 13, 2018

Keith Raniere made his first appearance in the Eastern District of NY. He pleaded not guilty to a criminal complaint.

When asked the defense position regarding the preliminary hearing, Raniere’s attorney responded, “we are not waiving anything, Your Honor.”  That included that he would not waive speedy trial.

April 19

The Government unsealed an indictment charging Raniere and Allison Mack.

May 4

Raniere and Mack appeared before Judge Garaufis for arraignment. The Court, cognizant of the fact that Raniere was incarcerated, asked the Government how long it believed it would take to provide discovery.

The Government, represented by AUSA Moira Penza, responded, “It is difficult for me to estimate exactly at this time,” citing concerns regarding a firewall to review privilege, but stated, “I certainly will produce the bulk of what we have within the next month or so, but there will be ongoing discovery after that.”

Penza added, “We anticipate that there will be additional charges and additional defendants.”

The Judge asked Penza, “What is your current time frame? And I ask this question because we have one defendant who is in custody… I think in this case it would be appropriate to move this case with alacrity.”

Raniere’s attorney, Marc Agnifilo rose to thank the judge for being mindful of Raniere’s incarceration, and said, “My client is asking for a speedy trial. He is not in a position to waive the speedy trial protections of the statute.”

Responding to the Government’s statements regarding discovery, Agnifilo said, “we will give the Government whatever hard drives we need to [] get the discovery as quickly as possible.”

In short, he was offering to go out of his way to aid the government in order to secure a speedy trial.

Raniere wanted a trial date in mid-July 2018. Agnifilo explained, “mid-July is not soon. It is down the road a way. If we need to scramble, that’s what we do and we will get ready.”

Mack however disagreed. Her lawyers told the judge that she would agree to waive speedy trial – because her attorneys wanted to review the preliminary discovery the Government had not yet produced.

So the reason the trial was not set for July was because of Allison Mack. The Court set an October 1, 2018 trial date.

June 12

Bail Hearing

Raniere filed a bail motion which was heard and denied without prejudice.

At the hearing, Judge Garaufis began by asking Penza, “I set a trial date of October 1st. When will you be done with your discovery transfers to the defendants?”

She replied, “It is difficult for us to estimate right now because we are still in the process of receiving certain materials.”

Penza, citing the superseding indictment, said, “we do expect a superseding indictment in this case and that there will be additional discovery obligations in accordance with the superseding indictment as well.”

When asked if the Government had an application for the exclusion of time [for speedy trial], Penza said, “at this time, the Government is still willing to engage in such plea negotiations, but we have not heard from defense counsel.”

July 24

The Government superseded and unsealed the Superseding Indictment, arresting four new defendants – Clare Bronfman, Nancy Salzman, Lauren Salzman, and Kathy Russell – on July 24, 2018.

July 25

Arraignment on Superseding Indictment. All six defendants were arraigned.

At the arraignment, AUSA Penza said, “In light of the additional defendants, additional discovery that will be involved, and the complexity of our superseding indictment, the Government… does not believe that the October 1 trial date is feasible at this point. I believe that Mr. Raniere, however, disagrees.”

Agnifilo said, “I have a client who is incarcerated; I have a client about whom the Government says it will never, never, agree to any conditions of release… So, I feel it incumbent upon myself to do what I need to do to get ready for a trial October 1. I’m prepared to do that. I recognize, and I expect you’ll hear my co-counsel who have clients who are not incarcerated do not want a trial October 1. I’m well-versed in what that means from a speedy trial perspective, but asking me, personally, I would like a trial October 1.”

In the above statement, Agnifilo admits that the four new codefendants – Bronfman, the Salzmans, and Russell – did not want the October 1 date.  This was not the government alone but the Nxivm ladies who wanted time to prepare for trial.

The Judge asked the Government about discovery.

Penza responded there was a lot forthcoming: “In light of the fact that we knew that there were going to be additional charges, there’s certainly a significant portion of discovery that was not produced to the defendants Raniere and Mack that is now relevant to the superseding indictment.”

The judge announced a trial date of January 7 “to select a jury. We go to trial immediately after that.”

The judge then excluded time for speedy trial in “the interests of justice under the Speedy Trial Act on consent of all parties but Mr. Raniere.”

So again, every one of the Nxivm defendants agreed to the delay from October 1 2018 to January 7, 2019 – a delay of three months.

July 26

The Court entered a minute order requiring the parties to “meet and confer regarding discovery and a motion schedule prior to the next status conference.”

Kathleen Cassidy (counsel for Clare Bronfman) sent an email to the prosecutors and all defense counsel at 10:09 am. She proposed a meeting the next day, when all defense lawyers would be present, and said, if the Government was available, “we will send you a list later today of what information defendants hope to gather from the meet and confer.”

When defense counsel had not heard back from the prosecutors for seven hours, Agnifilo sent a follow-up email at 4:42 pm, stating, “since we have both out of town lawyers tomorrow…, can we lock in the meet and confer discussed in open court for after our appearances tomorrow. Thanks. Marc.”

At 4:47 pm, the government responded, stating: “Thank you for your emails. The first step is to have the new defendants sign the protective orders, which we will send to them tomorrow. We will begin producing discovery to all defendants next week and if a meet and confer is necessary at some point in the near future, we will be available. In the interim, you are certainly invited to send us a list of information you are seeking to gather.”

The co-defendants’ counsel immediately signed the Protective Order – ensuring that the discovery material that would reveal the names of victims [Jane Does etc. and information about collateral] would not be revealed.

August 1

William McGovern (counsel for Allison Mack) asked for the meet and confer and stated that “Given the number of participants and summer schedules we don’t want to risk letting it slip any further into August. We are also cognizant that Judge Garaufis is holding the week of August 20 for us to address any outstanding issues not resolved during the meet and confer.”

August 2

The Government decided not to hold the meet and confer with defense lawyers, stating: “All – As we’ve said before, we believe it will be more productive and practical to meet and confer to address issues relating to discovery, should that prove necessary, after some productions have gone out to you. We will be calling some of you individually to discuss issues that may be unique to your clients in coming weeks, and, as always, we welcome specific questions or requests at any time.”

August 14

The defendants sent a letter requesting a Bill of Particulars, including the names of the Jane and John Does.

September 11

Discovery Letter by the defense.  This letter informed the court that (1) defendants were still not in receipt of the majority of the discovery—materials the Government had “in March 2018 or even earlier,” (2) the Government refused to meet and confer with defense counsel, (3) Raniere continued to demand a January 7, 2018 trial, 5 (4) the Government had still not identified the Jane and John Does in the Superseding Indictment and (5) the Government failed to respond to a Brady letter.

A Brady letter is a demand that all exculpatory material in the Government’s possession – material and evidence that might show the defendant’s innocence – be turned over to the defense – as is required by law.

September 14

Status conference. Judge Garaufis started by mentioning the September 11 Discovery letter from the defense.

Penza said the Government wanted to “first discuss our motion to designate this case as complex.”

The judge, stuck to the discovery issue, saying, “Well, I think that the heart of the matter is the concern raised by the defendants that there has been a delay in providing discovery that was obtained back in February, March, January of 2018, which cannot be easily understood or explained.”

Penza argued that the defendants’ discovery letter “was misleading in a number of respects” and that discovery productions were taking time because the Government “have begun searches of those materials indicated in the warrants” and the defendants “wanted metadata” and wanted “discovery bates stamped.”

In other words, it was the defendants who added additional requirements to the discovery production that helped delay matters.

Penza then stated that the government sought to designate the case as complex.

This designation allows more leeway for waiving the speedy trial provisions “in the interest of justice.”

When asked if the Government could meet the schedule in the letter submitted by Raniere’s counsel, the Government responded, “we don’t believe that a hard-stop discovery deadline is going to be appropriate…the Government is always constantly receiving new evidence both from witnesses from subpoenas that have been issued.”

The Government added, “we think it is highly likely that we will supersede to add additional charges against the defendants, who have already been charged, within the next several months.”

Raniere’s counsel noted the Government’s refusal to meet and confer with counsel and pressed for quicker discovery: “This is all manageable. And honestly… I think they [the Government] want it complicated. I think they’d rather keep it vague, they’d rather keep it mysterious, because then they can say, ‘well we might supersede;’ ‘well, its 144 library floors of stuff,’ ‘we don’t want to have a trial January 7th.’ Well, we do. We want a trial. …We will help the Court and we will help the Government get ready. We want this trial. We all do and we want it January 7th, and we will make it happen.”

Judge Garaufis noted that the January 7th date was predicated upon Magistrate Judge Scanlon “establish[ing] a discovery schedule.” The judge added, “no one wants [a January 7th trial starting date] more than” him.

The Court sent the parties to Judge Scanlon.

September 14, 2018 – Status Conference before Judge Scanlon.

Judge Scanlon asked the Government, “What’s the Government’s objection to starting with an all-counsel conversation and then coming back to me with … a somewhat more agreed-upon list of disputes.”

The Government responded, “Well, I can tell you right now that dispute is one that we are unwilling to engage.”

The Court asked, “What does that mean, you’re unwilling to engage?”

The prosecutor responded: “So, what I’m telling you, Your Honor, is that we have already disclosed those things that are the products of searches that we are willing to disclose. We are not – this is an ongoing investigation, Your Honor. We’ve already stated in front of Judge Garaufis that we expect there to be additional charges. We are not in a place where we are willing to disclose everything based on – potentially based on charges that have not been brought, for example.”

In other words, the Government was not prepared to produce all discovery that they had in their possession since they were still investigating and it might impact the investigation and was not due until all the charges contemplated were actually brought against the defendants.

September 18

Judge Garaufis designated the case as complex essentially throwing the January 7th trial date out the window. There was no fixed trial date. This decision was made by the judge.

September 24

Judge Scanlon ordered the parties to meet and confer and the parties discussed discovery issues. Judge Scanlon ordered the Government file multiple updates on the discovery she had asked for which required the Government to start producing more of the material

September 27

Conference – Judge Scanlon. During this conference, the Court inquired about a discovery cut-off date of December 7, 2018.

The Government responded that “the December 7th date that we proposed was not proposed as a discovery cutoff.”

The Court asked, “So what is it?”

The Government responded: “We proposed that date as a date by which we would endeavor to make substantial productions on an ongoing basis. Your Honor, we’re in a case that has been designated complex. We understand that the defendants are saying that they want a trial soon…. The government isn’t aware of a criminal case in which an arbitrary discovery cutoff was made, absent there being a fixed trial date. Your Honor, what the government doesn’t want is an arbitrary cutoff date based on a trial date that appears not to be set right now.”

The Government continued that “we will try to endeavor to get substantial discovery out there by then.”

The Court replied, “Try and endeavor, this is the problem.”

The Government said they had to complete discovery because they “have unindicted co-conspirators” and obligations to produce discovery,” but that “the trial is not looking like it’s going to be until spring or some later date.”

Raniere’s counsel said, “I want to try the case January 7th. Sometimes my colleagues don’t always agree with that and I’m trying to harmonize all the views… it’s really incumbent upon me, I think, to move as quickly as possible.”

The Court ordered the parties to work on the issues and propose a schedule by October 3, 2018.

Again Agnifilo admitted that the Nxivm defendants other than Raniere were willing to postpone the trial. Indeed they wanted the trial postponed to give them more time to prepare for trial. They were in no rush at all, it seems.

October 3

The parties filed a joint schedule. In light of discussions before Judge Scanlon and the defendants learning of the massive discovery, this schedule contemplated March 18, 2019 for opening statements of the trial.

So all the defendants except Raniere, along with the government, agreed to seek a mid-March trial.

October 4

Status Conference – Judge Garaufis.

The Court asked for the status of the discovery.

The Government responded that they “have been working diligently to produce discovery and [] have made a significant portion of discovery available to all defendants.” They stated that they “do not intend at this point to file a comprehensive list of what is in the Government’s possession” because “what is discoverable under Rule 16 is continually in flux as our case develops.”

As to the issue of the trial moving from January 7 to March 18, 2019, the Court asked if Raniere was “consenting” to the adjournment from January to March.

Agnifilo responded: “I want to answer Your Honor’s question about how we got here. We got here through a lot of compromise. We got here through a lot of conversation. I think we all feel that Your Honor sending us to Judge Scanlon has been very productive. It put us together. It was the right move at the right time. It’s exactly what the case needed and I had to compromise. I didn’t get what I wanted.”

The Government agreed that the parties worked effectively with Judge Scanlon and “have reached an agreement on a workable pretrial schedule with an anticipated trial date of March 18, 2019.”

The Court agreed that the March 18th trial date was a firm date.

Agnilifo consented – even though he compromised – not only with the government but with the Nxivm co-defendants – that the trial should commence in March.

November 2

The Government disclosed they obtained new search warrants for Keith Raniere’s Yahoo account, Clare Bronfman’s Google account, and all of the devices seized at Nancy Salzman’s house, to defense counsel and to Judge Scanlon, in a letter.

December 6

Status conference.

Agnifilo stated, “We’re very happy with the March 18 date to open and we consent in the interim.”

January 9, 2019

The Government turned over three terabytes of data from Bronfman’s email account, Raniere’s email account, the Oregon Trail devices seized from Nancy Salzman’s house, and numerous videos.

The Government disclosed in this letter the massive amount of discovery they had produced in recent weeks, including “over 96,000 pages of discovery, including substantial productions of the result of searches of electronic accounts belonging to defendants Keith Raniere, Clare Bronfman, and Allison Mack.”

This “massive volume of discovery” produced gave the non-DOS defendants “grave concerns that the March date is not feasible” due to insufficient “time to prepare for trial.”

So once again the Nxivm codefendants wanted a delay in the trial.

January 15

The Court adjourned the trial for six weeks, from March 18th until April 29th to accommodate the adjournment requests of the non-DOS defendants.

***

To be candid and fair, the April 29th date for the commencement of the trial is most likely a fiction.

A superseding indictment will kick it back months from that date. And that is likely to happen.

As you read this, the government is continuing its investigation and it is all but a certainty that a superseding indictment is coming any day now.

Is that the government’s fault that they keep finding additional crimes committed by Raniere and company? If they had waited to arrest him until after they completed their full investigation, perhaps Raniere would not now be in jail.

But, on the other hand, had he not gone to Mexico, used an encrypted email and ditched his phone, perhaps he would have been granted bail.

No the world’s smartest man may have only himself to blame.

The proverb goes “The wheels of justice grind slow, but exceedingly fine.”

As Raniere sits in jail for perhaps as long as another six months or more before he goes to trial, he might ponder on that.