The Curcio Hearings – Last Chance For Defendants To Protect Themselves

Sometime in the next three weeks, Judge Nicholas G. Garaufis will likely be conducting Curcio hearings for each of Clare Bronfman’s co-defendants in the case of U.S. v. Raniere Et Al: i.e., Keith Raniere, Nancy Salzman, Lauren Salzman, Allison Mack, and Kathy Russell.

The next Status Conference in the case is scheduled to take place at 11:00 AM on Thursday, February 28th, in Courtroom 4-D South at the U.S. District Courthouse in Brooklyn, NY – and Judge Garaufis has indicated that he would like to conduct the Curcio hearings before that event.

To remind our readers, the purpose of a Curcio hearing is to present relevant facts and information to a defendant in a criminal proceeding so that the defendant can make an informed decision as to whether their current attorney can provide them with adequate and sufficient representation given that the attorney has a potential conflict-of-interest.

In the case at hand, the potential conflict-of-interest arises from the fact that all the attorneys representing Bronfman’s co-defendants are being paid for from a Defense Trust Fund that she set up for that purpose shortly before she herself was indicted.

That same Defense Trust Fund is also apparently being used to provide legal representation to any witness who is willing to plead the Fifth Amendment when they are asked questions about Bronfman, Raniere and/or the NXIVM/ESP crime syndicate in front of the Grand Jury that has been hearing testimony in the case. Those witnesses who are not willing to follow that course-of-action are apparently forced to hire their own attorneys.

During the initial phase of the Curcio hearings, each of Bronfman’s co-defendants will be meeting separately with Judge Garaufis – who will ask them a series of questions. At the end of the first phase of each hearing, the judge will ask each of them if they would like to discuss things with an independent attorney – and, if they do, he will appoint such attorneys for them. Those independent attorneys will be paid for by the court, either through the appointment of an attorney working at the Federal Defenders of New York office or private attorneys who serve on the Eastern District of New York’s “Criminal Justice Act (CJA)” Panel.

In anticipation of the upcoming Curcio hearings, the prosecution submitted twenty-four questions that it would like Judge Garaufis to ask Raniere, the Salzmans, Mack, and Russell. Those questions are as follows:

RE: Potential Conflict of Interest Posed By Co-Defendant’s Payment of Legal Fees
1. Are you satisfied with the services of your attorneys thus far in the case?

2. Do you understand that, in every criminal case, including this one, the defendant is entitled to the assistance of counsel whose loyalty to him or her is undivided, and who is not subject to any force or consideration that might in any way intrude upon the attorney’s loyalty to his or her client’s interests?

3. Have you received any inducements, promises, or threats with regard to your choice of counsel in this case?

4. Are you paying your attorneys’ fees or is someone else paying for them to represent you? Who specifically is paying them? How long has that been the case?

5. Do you have an understanding whether, in the future, they will continue to pay, indemnify, or reimburse your legal fees in this case? What is your understanding?

6. Because your attorneys are being paid by a third party, they may be influenced by this third party in connection with their representation of you, that is, they may be influenced to advise you to do things that are in the third party’s best interests and not in your best interests.
(a) For instance, if the third party is involved in the alleged crime, the third party may have a vested interest in having your lawyers advise you to accept sole responsibility for the unlawful scheme or to minimize the third party’s involvement with or knowledge of the scheme. Do you understand that?
(b) Your lawyers may also have an interest in advising you not to seek to cooperate with the Government, even if that might be in your interest, where your cooperation might directly or indirectly implicate the third party that is paying your legal fees. Do you understand that?

7. Have you consulted with counsel other than your attorneys about the risks associated with this potential conflict of interest?

8. Do you understand that you have a right to consult with another lawyer to determine whether you wish for them to continue representing you? Do you understand that the Court will give you an opportunity to do so, and that the Court encourages you to do so? Do you understand that, if you cannot afford other counsel, the Court will appoint counsel—free of cost to you—so that you may consult with conflict-free counsel about these issues?

9. Have any of your attorneys informed you that they have been compensated for their representation of you, directly or indirectly, by a co-defendant in this case?

10. Do you understand that in some circumstances your attorneys might have an incentive to put the interests of Clare Bronfman before yours?

11. Let me give you some examples of the ways in which your attorneys’ ability to represent you might be affected by the fact that they have been paid by Ms. Bronfman. This could affect the way that your lawyers consider and advise you:
(a) Whether, and when, you should plead guilty;
(b) Whether you should seek to cooperate with the Government;
(c) What defenses you should raise;
(d) Whether you should testify at trial;
(e) Which witnesses should be cross-examined, and what questions they should be asked;
(f) Which witnesses should be called, and what other evidence to offer on your behalf;
(g) What arguments to make on your behalf to the jury;
(h) What arguments to make to the Court, and what facts to bring to the Court’s attention, before trial, during trial, or, if you are convicted, at your sentencing.

12. Tell me in your own words what your understanding is of the potential conflict of interest arising in this situation.

RE: Right to Conflict-Free Representation
13. Do you understand that you have the right to object to your attorneys’ continued representation of you based upon the existence of a potential conflict of interest?

14. It is important that you understand that no one can predict with any certainty the course that this case will take or how this conflict may affect it.

15. What is your understanding of the right to “effective assistance of counsel”?

16. Is there anything I have said that you wish to have explained further?

17. I will give you an opportunity to think about what you have been told, and, if you would like, to talk it over with counsel other than your attorneys. After you have thought it over, I will ask whether you have considered the matters that I have talked to you about, either with or without an attorney. Then I will ask whether you wish to continue with your attorneys.

18. Do you need court-appointed counsel for the purpose of consulting with you about these conflict-of-interest issues?

RE: Continuation of Curcio Hearing
19. Given that having your co-defendant Clare Bronfman pay your legal fees may adversely affect your defense, do you still believe that it is in your best interest to proceed with your attorneys?

20. Is that your wish?

21. Do you understand that by continuing in this fashion with your attorneys, you are waiving your right to be represented by an attorney who has no conflict of interest?

22. Are you knowingly and voluntarily waiving your right to conflict-free representation?

23. Do you agree to waive any post-conviction argument, on appeal or otherwise, that by virtue of having a third party—and, indeed, your co-defendant—pay your legal fees, you were denied effective assistance of counsel?

24. Is there anything that the Court has said that you wish to have explained further?

*******************************************************************

Not surprisingly, the horde of defense attorneys who are suckling on the teats of Clare’s Defense Trust Fund immediately raised some objections to the list of questions suggested by the prosecution. Here is what they wrote to Judge Garaufis in one of their recent filings:

We respectfully request that the Court include the following admonitions and questions at the outset of its Curcio inquiry for the benefit of the defendants and the public:
– Let me take a moment at the outset to explain what we’re doing here and why. The government has suggested that your attorneys, [defense counsel], either have been or are being paid for their services in this case by someone other than you. This fact, commonly referred to as a third-party payor, can in certain circumstances create an actual or a potential conflict of interest between [defense counsel] and you in that [defense counsel] might give partial or, even as a theoretical matter, anyway, entire loyalty to whoever is paying them as distinguished from their client.

– Now, [defendant], you should listen particularly closely to what I’m about to say. The defendant in any criminal case has a right under our Constitution to be represented by a lawyer whose only loyalty is to the defendant, a lawyer who is not subject to any force, influence, or consideration that might interfere with undivided loyalty to the defendant. This concern with the undivided loyalty of the lawyer to client in a criminal case is not a concern that is only the client’s. The courts have an independent interest in regulating the conduct of lawyers and in ensuring the integrity of proceedings before them.

– Now, the fact that we’re starting down this path today should not be misconstrued by anyone as suggesting any misconduct by any defense attorney. It is not at all uncommon in criminal cases in our country that friends, relatives, and sometimes other people, pay for or contribute to paying for the cost of lawyers for criminal defendants. It is simply that for reasons I have explained, the Court has an obligation to know what is going on and it has an obligation to know that the defendant knows what is going on, and to assess whether the representation can or should go forward if somebody else is actually involved in financing the defense. This Court, having been apprised of the possibility of a conflict between you and [defense counsel], is obliged to investigate the facts and circumstances to see whether there really is a conflict, and if there is, whether it’s real and immediate, simply potential, whether it’s subject to being waived, whether the defendant wishes to waive it, and so on.

– [Defendant], if at any time during my questioning, if you want to speak with your attorneys, tell me and you will be given that opportunity. Do you understand?

– [Defendant], is your mind clear this morning?

– Have you discussed with your attorneys the potential conflicts of interest that arise when a third-party pays a defendant’s legal fees?

– Without telling me what was said, have they explained to you the risks specific to your fee arrangement in this case, and the potential effects (if any) it could have on their representation of you?

In addition, defendants respectfully submit that the Court should strike several of the government’s proposed inquiries in light of the current status of the proceedings. Specifically, defendants submit that the following proposed questions should be stricken from the inquiry:

– Question #4: Are you paying your attorneys’ fees or is someone else paying for them to represent you? Who specifically is paying them? How long has that been the case? o Defendants respectfully submit that this question is unnecessary. Multiple filings, including the instant filing, have made clear that there is a third-party payor (i.e., the Trust), and who it is that has provided the funds to the Trust. That information is sufficient for the Court to conduct a Curcio inquiry to ensure that each defendant understands the nature of the potential conflict, and there is no need for this information to be stated in open court or disclosed to the government.

– Question #9: Have any of your attorneys informed you that they have been compensated for their representation of you, directly or indirectly, by a co-defendant in this case? o Defendants respectfully submit that this question should be stricken in its entirety. All of defense counsel’s fees are paid by the Trust, not by Ms. Bronfman. o To the extent the Court believes it is relevant—and we submit that it is not— defendants have no objection to the following question: “Do you understand that one of the contributors to the Trust is a co-defendant in this case?”

– Question #10: Do you understand that in some circumstances your attorneys might have an incentive to put the interests of Clare Bronfman before yours? o Defendants submit that this question should be stricken in its entirety. Given the structure and irrevocable nature of the Trust, there is no basis to assume that the defense attorneys in this case have any incentive to put the interests of Clare Bronfman before those of their respective clients. This is particularly true where, as here, the Trust will not be replenished and will cease to exist upon exhaustion of its funds, eliminating any arguable incentive arising from the possibility of future payments from Ms. Bronfman. o While they do not believe it is necessary due to the structure of the fee arrangements and of the Trust itself, given that there remain some funds in the Trust that have not yet been disbursed, defendants do not object to the following question: “Do you understand that in some circumstances your attorneys might have an incentive to put the interests of the Trust before yours?”

– Question #11: For these same reasons, to the extent the Court believes it is necessary to ask the questions set forth in Question #11 of the government’s proposed inquiry, the Court should substitute “the Trust” in place of “Ms. Bronfman.”

– Question #15: “What is your understanding of the right to ‘effective assistance of counsel’?” o Defendants respectfully submit that the Court should strike this question in its entirety, particularly if the Court is willing to provide the substance of the proposed admonitions above, which clearly outline a defendant’s right to conflict-free counsel. o Moreover, this question is inappropriate as the purpose of a Curcio inquiry is to ensure that each defendant understands: (i) his/her constitutional right to conflict free counsel; (ii) the nature and potential implications of the potential conflict; and (iii) his/her knowing and voluntary waiver of the right to conflict-free counsel. The concept of “effective assistance of counsel” is a legal conclusion that has no relevance to the instant inquiry.

– Question #19: Given that having your co-defendant Clare Bronfman pay your legal fees may adversely affect your defense, do you still believe that it is in your best interest to proceed with your attorneys? o Defendants respectfully submit that this question should be stricken in its entirety. It is an inaccurate statement of the nature of the potential conflict and the Curcio standard. o To the extent the Court determines some inquiry of this nature is appropriate, we respectfully submit that the proper inquiry is: “Having heard your right to conflict free counsel and your understanding of the potential conflict posed by the Trust’s payment of your legal fees, do you still wish to proceed with your current counsel?”

– Question #23: Do you agree to waive any post-conviction argument, on appeal or otherwise, that by virtue of having a third party—and, indeed, your co-defendant—pay your legal fees, you were denied effective assistance of counsel? o Defendants respectfully submit that the portion between the em dashes (i.e., “and, indeed, your co-defendant”) should be stricken. o The question also presupposes that defendants will be convicted. o In place of Question #23, we respectfully submit the Court should ask the following: “If I permit you to proceed with [defense counsel] and you are convicted at trial, do you agree that you will not make and cannot make any argument on appeal or otherwise in attacking any conviction based on the fact that [defense counsel] represented you given the theoretical and potential conflict of interest that we have discussed?”

*******************************************************************
It is believed that none of Clare’s co-defendants can afford to pay for their own attorneys. So, if any of them decides that they don’t want to be represented by an attorney who is dependent on the Defense Trust Fund – and/or if any of them doesn’t agree with the legal strategies that are most likely being directed by the world’s smartest man, Keith Raniere – then they will have new attorneys appointed for them by the Court. Those attorneys will also be paid for by the Court.

Making this situation even more complicated is the fact that the Defense Trust Fund is rapidly running out of money. Two weeks ago, Judge Garaufis revealed that more than 75% of the funds had already been expended – an announcement that was certain to spur every defense attorney to get their January invoices in on time.

And that “more than 75%” figure was before Allison Mack went out and hired two more top-notch criminal defense attorneys for her legal team.

*******************************************************************

Notwithstanding the suggestions that he has received from the prosecution and the defense attorneys, Judge Garaufis will be able to ask any questions that he wants during the Curcio hearings.

Given his grave concern that each of Bronfman’s co-defendants is fairly and adequately represented throughout the upcoming trial – and his desire that the outcome of that trial not get overturned on appeal due to any technical errors on his part – it will not be surprising if the judge goes beyond the questions that have been suggested by the prosecution and the defense attorneys.

So, for example, he might ask each of Bronfman’s co-defendants questions like the following:
(1) How did you come to hire your attorneys: i.e., did you do some research or make your own inquiries and then select them?

(2) Were you told that if you wanted the Defense Trust Fund to pay for your attorneys, you had to retain the attorneys currently representing you?

(3) Did your attorneys contact you – and tell you they had been hired to represent you?

(4) Were you given a choice of attorneys but told that if you wanted the Defense Trust Fund to pay your attorneys’ fees, you had to pick from a list provided to you?

(5) Were you told that the Defense Trust Fund would pay for any attorneys you wanted to hire without any restrictions or conditions?

(6) How often do you meet with and/or correspond with your attorneys?

(7) Have your attorneys consulted with you on potential defense strategies?

(8) Have you had any discussions with your attorneys about alternative defense strategies that might be utilized on your behalf??

(9) Have you had any discussions with your attorneys about possible plea deals?

(10) Have your attorneys engaged in any plea deal discussions with the prosecution?

(11) Have your attorneys provided any advice to you as to whether you should testify on your own behalf at trial?

(12) Have your attorneys explained to you every document they have filed on your behalf in this proceeding? Did they do that before or after they filed them?

(13) Have you had any discussions with your attorneys as to what they will do if/when the Defense Trust Fund that is currently paying their legal fees runs out of money?

(14) What is your understanding as to the maximum sentence you could receive if you were found guilty with respect to all the pending charges against you?

(15) How are you supporting yourself while you await the start of your trial?

***

K.R. Claviger