Frank Report obtained the rough draft of the transcript from yesterday’s hearing where Clare Bronfman fainted. The record of the sidebar is not part of the record.
Here it is:
(In open court.)
(Defendants present in open court.)
COURTROOM DEPUTY: All rise. The United States District Court for the Eastern District of New York is now in session. The Honorable Nicholas G. Garaufis is now presiding.
(Honorable Nicholas G. Garaufis takes the bench.)
COURTROOM DEPUTY: Calling criminal case for status conference in Docket No. 18-CR-204, United States of America against Keith Raniere, et al Counsel, please note your appearances for the
MS. PENZA: For the United States of America, Assistant United States Attorney Moira Kim Penza.
Good afternoon, your Honor.
THE COURT: All right. For Mr. Raniere.
MR. AGNIFILO: Marc Agnifilo for Keith Raniere…Good afternoon, your Honor.
MR. MOSKOWITZ: Avi Moskowitz.
THE COURT: For Ms. Bronfman.
MS. CASSIDY: Kathleen Cassidy.
MR. GERAGOS: Mark Geragos.
MS. NEWMAN: Donna Newman as Curcio counsel.
THE COURT: Okay. We’re here for two additional Curcio hearings. That’s hearing eight and hearing nine as I recall in this case. And before we start with these two hearings, I have a letter from Ms. Bronfman’s counsel, Ms. Cassidy, requesting that the courtroom be sealed and I’ll hear from Ms. Cassidy about that.
MS. CASSIDY: Thank you, your Honor. As we stated in our letter and I think as the Government submitted in its letter which was submitted late last night, this hearing will inevitably address several things that require the courtroom to be sealed. One is the ongoing criminal investigation in the Southern District of New York which is a valid reason to seal the courtroom. It also implicates confidential attorney-client information and attorney-client confidences of Ms. Bronfman. And we submit that for the reasons that the Court held that the Government’s letter should be filed under seal, the same reasons justify sealing the courtroom for this proceeding.
THE COURT: All right. Let me hear from the Government. Is there anything from you Mr. Agnifilo?
MR. AGNIFILO: Yes, your Honor. We join in the Rough Draft motion and we add — my belief is for the procedure and United States v. Alcantara on this point is we have to make the motion in some public setting which we are now doing.
THE COURT: I know all about.
MR. AGNIFILO: Then.
THE COURT: U.S. v. Alcantara. Judges read that very carefully in the Second Circuit.
MR. AGNIFILO: Understood. So I think the important steps in the process is I believe we have to give the press the right to be heard and we have to put reasons on the record.
THE COURT: Okay. Thank you very much. What’s the Government’s position about this.
MS. PENZA: Thank you, your Honor. As your Honor can see, the press is here, and so, the Government is not authorized to consent or to seek courtroom closure. The reasons we set forth in our sealing alert is din hadn’t Alcantara analysis and we ask if there is to be the courtroom is to be be sealed that the Court does go through the Alcantara process. The Government would note that we do believe there are ways that the proceeding could — there can be a more limited — something less than courtroom closure … in this case, for example, if your Honor wanted to have us to have sidebar for areas of that are causing particular privacy interests or where there are concerns about an ongoing potential investigation the Government would be amenable to that.
THE COURT: If the Court doesn’t tell of into the specifics of conversations that may have taken place, but
rather regarding the relationships of counsel with the defense and with co-defendants, that would seem to me that would not create an issue with regard to the rights of third-parties. The constitutional rights of third-parties.
MS. PENZA: The Government agrees. If there were certain areas where the Government felt that the Court would need to inquire further in a way that should be done at sidebar, the Government could make the appropriate motion.
THE COURT: Yes, Ms. Cassidy.
MS. CASSIDY: Your Honor, one other thing I would like to add is I think there are things that the Court will inevitably delve into which will create prejudicial pretrial publicity for Ms. Bronfman and potentially the other defendants in this case. And if the Court is considering holding this hearing or portions of it publicly, we would like the opportunity to submit a formal motion to address specifically those reasons.
THE COURT: Mr. Reilly. Did you want to say something on behalf of the press? It’s usually your role to be deputized by your colleagues so I want to deprive you of the opportunity to speak.
MR. REILLY: Thank you, Judge. John Reilly from Newsday. I’m not actually deputized by anybody, I’m just speaking for myself. But other people may share. Yes, I object — we object to the sealing of whatever you’ve received under seal and to any closure of any Curcio hearings relating to this matter. It’s important for the public to have be able to transparently review questions that are asked to make sure that the defendants are properly informed of potential conflicts and properly waive those conflicts. That’s what the presumption of access is designed for. There’s no compelling interest here in overcoming it. I know there have been widespread news reports that the co-counsel for Ms. Bronfman is an accused unnamed co-conspirator in U.S. v. Avenatti case in the Southern District and that’s — there’s no law enforcement interests that are compromised by discussing a case that’s already in the public record and was filed on Monday. So we would object to — I would object to any closure of the courtroom and I would request the unsealing of documents relating to those matters. I have a her which I can give the Court.
THE COURT: I’m sure you do. Okay. We’ll take it at the end of the proceedings here. Thank you, sir. Is there anyone else from the media who wishes to speak.
MS. SAUL: Emily Saul from the New York Post.
THE COURT: Oh, that’s you.
MS. SAUL: We’ve met a couple of times anyway it’s not relevant. I would simply is that a before your Honor ruled on this perhaps there could be a brief second call so that I can call my counsel for the Post. Perhaps Patricia Hurtado.
MS. HURTADO: Pat Hurtado on behalf of Bloomberg News. Secondly contemporaneously considering an application to seal the courtroom we be allowed an opportunity to advise our outside lawyers so they can represent us on behalf — our behalf.
THE COURT: Thank you…
MR. HAYES: Tom Hayes for Associated Press. Same request.
THE COURT: Yes.
MS. BEIKEMPIS: Victoria Beikempis, New York Magazine. I would simply like to join in the request of my colleagues and reiterate both their constitutional that goes along with that. You keep open the time to reach out to counsel to more thoroughly address access issues should this petition be ongoing for closure.
MS. OTTAWAY: Amanda Ottaway, Courthouse News. I would like to 7th or 8th join in the request of my colleagues.
THE COURT: That’s it. Okay. Thank you very much. Everyone. Well, I’m going to renew the motion but with respect to the questions that I ask if counsel or Curcio counsel believes that any question would create a prejudice we can is an a sidebar as to whether the question should be answered in public or whether it should be answered in private and then I’ll rule on any particular request to seal an or to maintain part of the colloquy outside the hearing of the public. But I will say this that all of the other Curcio hearings here have been held in public and there’s not been any problem with that. The problems that may exist for others that are not the concern of this Court. What’s going on in the Southern
District is not the concern of this Court. What’s going on in California is not the concern of this court. What I’m concerned about is to that when you answer my questions you tell the truth and that you give a fulsome answer to I have question so that we don’t come back a week later and find out that there’s more that I need to know that is relevant to the questions I’ve asked that I haven’t been told. So and we’ll see what that S we’ll start with Ms. Bronfman why doesn’t she come up with her Curcio counsel.
MS. NEWMAN: Your Honor, if I might?
THE COURT: Yes, go ahead.
MS. NEWMAN: Ms. Cassidy, would like it be here since she is representing. Thank you very much.
THE COURT: All right. Have you had an opportunity to meet with your client?
MS. NEWMAN: Yes, I have and I have had an opportunity to both review the Government’s March 26, 2019, letter that was filed last night, late last night and the proposed Curcio examination that was just filed at 2:00 o’clock.
THE COURT: Okay. All right. I’m going to swear the defendant in.
COURTROOM DEPUTY: Raise your right hand.
THE DEFENDANT: I do.
THE COURT: Ms. Bronfman, have you received and reviewed a copy of the Government’s letter dated March 26, 2019, and the attached complaint.
THE DEFENDANT: I have, your Honor. Thank you.
THE COURT: Have you reviewed that letter with your Curcio attorney and discuss its consent with her.
THE DEFENDANT: Yes, I have, your Honor.
THE COURT: Now, do you understand that the attached complaint charges an attorney named Michael Avenatti with extortion among other crimes?
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. Based on your review of the Government’s letter, are you aware that according to attorney Mark Agnifilo, the individual referred to in the complaint as CC-1 is your attorney, Mark Geragos.
MS. NEWMAN: Your Honor, are you asking I’m not sure if you’re not reading from the questions, no, you have your own questions, am I correct? Just because we’re getting.
THE COURT: I don’t know what you’re reading from.
MS. NEWMAN: Okay. Your Honor, my understanding of this question is that this information comes from a review of either the media or other things and it’s asking her for outside information as opposed to just the reading of the complaint. And so, to that extent she’s reviewed the complaint and so she gets that understanding of what’s the allegations. But who they’re referring to can only be based on really hearsay. She doesn’t have any inside information.
THE COURT: Let me ask this question. Tell me the names of the attorneys that you have retained in this case.
MS. NEWMAN: Your Honor, to the extent that that may ask for attorney-client privilege, I would object. There are attorneys that are obviously have filed their notice of appearance and that’s public record.
THE COURT: Yes, but when this individual, your client, appeared before me for a Curcio examination last
MS. NEWMAN: The 19th of March, your Honor.
THE COURT: Yes. And I was asking her questions and her relationship with her attorneys, it’s now my understanding, Court’s understanding that she had an additional attorney who is negotiating with the U.S. Attorney’s Office for her who had not entered a notice of appearance. Isn’t that right?
MS. NEWMAN: Well, your Honor.
THE COURT: I don’t want to ask you, I want to ask her.
MS. NEWMAN: I understand.
THE COURT: She’s going to have to answer my questions because last time she was here she told me she found — she did a Google search to find Mark Geragos when Mr. Brafman’s daughter was representing Mr. Raniere and I was told by Mr. Geragos that he had a longstanding relationship with the Bronfman family. So I want the truth here, madam, and I want it from her.
MS. NEWMAN: I understand that. And she’s been so advised.
THE COURT: Did she retain Mr. Avenatti to represent her in this case, yes or no?
MS. NEWMAN: In this specific case?
MS. CASSIDY: Your Honor, this is exactly what we had requested the sealing for. We believe this calls for information that is protected potentially by attorney-client privilege and we would ask that we be able to address this at sidebar with your Honor.
THE COURT: We’ll have a sidebar.
MS. NEWMAN: Thank you, your Honor, your Honor, I appreciate it.
Sidebar conducted off the record.
[Clare Bronfman “faints”]
(In open court.)
THE COURT: We’ll take a five-minute break.
(A recess in the proceedings was taken.)
(In open court; 4:28 p.m.)
THE COURT: Please be seated.
(Defendant enters the courtroom at 4:28 p.m.)
MS. NEWMAN: May I approach, your Honor? Thank you. Your Honor, as your Honor is aware, Ms. Bronfman is not feeling well. The medics have checked her out. They feel that she — her skin has not come back to color and they are recommending she is going to the hospital. She’s not sure whether she’s put that’s what their recommendation is. She’s in there with some of her other counsel to make that decision. But I know that she can’t go forward with today. She’s just not well. She’s still very wobbly. She’s just not feeling well. I believe she blacked out. I’m not a doctor … but something happened. So, your Honor, we’re willing to resume to with the Court’s schedule would Friday be soon enough? I don’t know what the Court’s schedule is.
MR. GERAGOS: She can black out probably 45 seconds to a minute.
THE COURT: All right.
(A brief pause in the proceedings was held.)
THE COURT: I can do tomorrow afternoon.
MS. PENZA: That’s fine for the Government, your Honor.
MS. NEWMAN: We can do it.
THE COURT: 2:00 o’clock.
MS. NEWMAN: 2:00 o’clock.
THE COURT: I’m only going to do Ms. Bronfman. I can do Ms. Mr. Moskowitz how late can you state stay on Friday.
MR. MOSKOWITZ: Late enough.
THE COURT: Like 3:00.
MR. MOSKOWITZ: If we can start at 3:00 I’m Friday.
THE COURT: I’ll do Mr. Raniere on Friday. I just want to clarify one thing. Nobody has — there is no privilege associated with the retention of counsel. So when I ask a question about whether someone is someone’s counsel or not or has been I expect an answer to that question. Am I understanding from the Government and Mr. Lesko can clarify it is that when that last week at about the same time that I was holding Ms. Bronfman’s hearing on 3/19 her Curcio hearing, there was also a meeting of Mr. Geragos and Mr. Avenatti with the Government about this case? I’m not discussing what was said or what was asked or what was responded to. I’m just saying there was a meeting. It wasn’t it about and correct me if I’m wrong some civil case up in Albany, it was about this case and that Mr. Avenatti had been retained in this case. So I want answers. I want to know why I wasn’t told last week that Mr. Avenatti had been retained as part of this whole discussion of this Curcio discussion. I want to know that because I should have been told who the lawyers are. When the defendant had her episode just now unfortunately and I hope she’s feeling better, no one should get sick over this, several people got up who are also her lawyers but they may not be her lawyers in this case. But if they meet with the Government about this case, they’re then lawyers in this case and I control and run this case. And I don’t want any excuses about privilege with regard to who her lawyers are. You’re going to tell me who are lawyers. You’re going to tell me when they were retained. This is also the individual I would add who set up an irrevocable trust to hire lawyers for everybody else. So she’s got a pretty good idea of how to deal with getting lawyers for everybody and I assume she starts with number one, herself.
MS. NEWMAN: I understand, your Honor.
THE COURT: No, you don’t understand because you argued with me about it and you tried to avoid telling me having her avoid telling me so you understand so now I’m telling you when I ask the question about who your lawyers are I expect the defendant at a Curcio hearing to tell me. And that’s all I have to say about that.
MR. GERAGOS: Could I weigh in?
THE COURT: Are you disagreeing with me on the fact that Mr. Avenatti and Mr. Geragos had a meeting with you about this case last week.
MR. LESKO: Not at all, your Honor. In fact, the recommendations in our Curcio letter are entirely accurate and it was represented to the Government and in particular me that Mr. Avenatti was being brought into the case it was unclear as to whether or not he was going to file a notice of appearance and then we proceeded to discuss Ms. Bronfman’s case.
THE COURT: Yes, Mr. Geragos.
MR. GERAGOS: I was just going to echo that very same thing that’s exactly what happened.
THE COURT: All right. Okay.
MS. NEWMAN: I am now informed, your Honor, so long now I can make further inquiry. Thank you, your Honor.
MR. GERAGOS: It was specifically said we did not know if he was going to file a notice of appearance because of the other issue that had been raised to you by Curcio counsel.
THE COURT: You mean the other case?
MR. GERAGOS: Correct.
THE COURT: What do I care about the other case?
MR. GERAGOS: You don’t.
THE COURT: My point is if an attorney is engaged on this case, by having conversations with the Government on issues in this case, then that person whether that person has been formally retained. Whether the defendant has written a check or whether the person is pro bono, the person is in this case.
MR. GERAGOS: Let me explain why it’s a nuance and I’ve only done it a couple of times. It was a third-party cooperation offer, so –
THE COURT: I don’t want to go into any of that. I’m not interested in that what I’m interested in is that when I ask a question about whether someone has been retained in a case or is doing any work in the case and there are issues being brought up by the Government, I need answers to those questions.
MR. GERAGOS: I understand.
THE COURT: All right. Now, we’re all on the same page perhaps. 2:00 o’clock tomorrow to continue the Curcio hearing for Ms. Bronfman. 3:00 o’clock on Friday for the Curcio hearing for Mr. Raniere. Anything else.
MS. NEWMAN: Thank you.
MS. PENZA: Thank you.
MS. HAJJAR: Thank you.
THE COURT: One moment don’t move… I want everybody who is supposing to …all counsel I don’t know who all counsel are anymore they’re coming and going. That’s it.
MS. PENZA: Thank you.
MR. AGNIFILO: Thank you.
(Defendant exits from courtroom at 4:36 p.m.)