Sylvie was the first witness in the trial of Keith Alan Raniere. AUSA Moira Kim Penza wrapped up her lengthy examination of Sylvie:
Q Sylvie, just one final question from me…. Looking back, do you have any thoughts as to why you … joined DOS?
A I think it had been so many years of me in this feeling pretty crappy about myself, to be honest, and just always thinking that the next ESP thing was going to fix me somehow, and this [DOS] was just another thing that was presented within a context of people that I had come to trust and thought cared about me and had my best interests at heart, and so I really thought when Monica [Duran] came to me and said she had this special project, that this was something that was maybe finally going to be the thing that made me feel good about myself, so I had no reason to think otherwise.
Q And was what happened to you anything like you expected?
PENZA: Thank you. I have no further questions.
This concluded the direct examination of Sylvie. But before the defense began cross examination, a couple of points had to be discussed with the judge. One was the topic of Sylvie’s orgasm when Raniere performed oral sex on her. It is a sensitive topic and before Agnifilo began cross-examination, some boundaries were set.
Agnifilo wants to show that Sylvie told Raniere that it was her first orgasm, seemingly implying that Sylvie misled Raniere into thinking she was happy about her experience.
Penza argues that the oral sex Raniere performed on her was not done with her consent because of the collateral.
The second issue is interesting from a legal standpoint. Sylvie testified she had deleted her texts and the naked pictures she sent to Raniere and relied on memory during her examination. It turned out that Raniere did not delete the chats or the naked pictures. He preserved them on a phone he brought with him [and left behind] in Mexico. He provided the chats – done on What’s App and the photos to his attorneys.
Agnifilo wanted to use some of this to impeach the witness insofar as her direct testimony contradicted some of the actual evidence in the possession of the defense. AUSA Penza has an objection, claiming that the photos were the byproduct of extortion etc.
Here is the sidebar.
Judge Nicholas G. Garaufis is referred to as “THE COURT”
THE COURT: The issue about cross-examination on the subject of an orgasm, you moved on, what is your position on it?
PENZA: Well, Your Honor, given that the witness herself mentioned the fact of orgasm, I think part our motion was partially moot; however, we still don’t want there to be any argument that that [her orgasm] implies consent, so to the extent the cross-examination is such that it implies that, because she orgasmed that there was any sort of consent, we believe that that is scientifically unfounded. I think kind of the relentlessness of [Raniere’s oral sex] what she described as experiencing I think makes sense, and so in light of that, we just want to make sure — I don’t really think there is much more to elicit [on her orgasm] frankly.
THE COURT: Let me ask the defense. I don’t want to do this in front of the jury again, so I just want a sense of how much, now that the witness has indicated that there may have been — she didn’t say specifically, but she said she described her feelings and she may have, my sense was, you can correct me, that it may have involved an orgasm.
THE COURT: Fundamentally, how far do you plan to go with this?
AGNIFILO: After the sexual episode with Mr. Raniere, she said to him ‘that was my first orgasm’ and what she said on the stand was, ‘I had never had an orgasm before,’ which how would he know that. And ‘I don’t know what I had was an orgasm, it was like an out-of-body experience.’ So I want to be able to ask her is that, after this, didn’t you say to Mr. Raniere ‘this was my first ever orgasm.’
PENZA: I don’t think there is a problem with that question.
THE COURT: There is no problem. I just wanted to make sure this is the extent of what — I don’t want orgasms to be the subject of a widespread —
THE COURT: Well, I’m just concerned. There are going to be many witnesses and I want to be very careful about what we do with each witness.
PENZA: We will still — in our view, we will still move to preclude this as to other witnesses.
THE COURT: We’re not there — I’m taking this one at a time.
THE COURT: We’ll deal with it one at a time, because everybody’s circumstances will be somewhat different, I assume. Yes.
AGNIFILO: The other part, just so there is no confusion, what I interpret her to say is that she was manifesting, truthfully or not, pleasure or she — I can’t remember what the testimony was, but something like she was acting in a way like she was enjoying the experience or something along those lines. I am not going to dwell on it. Listen, I am very —
THE COURT: Well, you know —
PENZA: The fact is at that point in the encounter, the consent is over.
THE COURT: Yes, but the point is, my point is that to a certain degree the defense can go into what that meant to her and that’s appropriate if — whether it’s a good idea or bad idea, that’s appropriate. I’m not going to discuss with an experienced criminal defense lawyer whether it makes sense to do that as a strategy.
AGNIFILO: There is never enough experience to deal with issues like this.
THE COURT: Well, I’ll say. So I just wanted to get a sense of how far we were going — you’re supposed to go with this. I think we’re in relatively sound position to go forward.
PENZA: Agreed, Your Honor.
THE COURT: Is there anything else? Oh, what about the 275 pages [of texts and naked pictures of Sylvie that Raniere kept].
AGNIFILO: We’ll give them all over [to the prosecution]. What I intend to do, because she said that she deleted her WhatsApp, …these are the WhatsApps. Now I have — the problem I have is I have to delete her name but I don’t want to delete her name before she identifies it because the fact is it says Sylvie, can I say —
THE COURT: You can show her and read from it.
PENZA: Is this impeachment though? I mean, if this is being admitted into evidence as something that’s not authenticated currently, etc., that is case in chief and we should see it right now. Your Honor, absolutely there should be —
THE COURT: If it’s impeachment you’re going to show it to her and let her read it.
PENZA: Why is it being shown to her before impeachment? The question should be, did you have conversations with —
THE COURT: I know. He’ll —
PENZA: But he shouldn’t be showing —
THE COURT: I expect he’ll set it up. He’s not just going to show her 275 pages. It would make no sense I assume.
THE COURT: But you have to provide the initial questions to then move in to the use of these documents to show her and ask her questions about it.
AGNIFILO: Right, so…
PENZA: My point though is, Your Honor, if he — if Mr. Agnifilo intends to enter this into evidence and try and authenticate it through the witness and then have this be entered into evidence, I think there is going to be a host of hearsay problems, etc., with doing that, but if that is the intention, then we should be allowed to see it right now and have the opportunity on direct [examination] to elicit information about it. And to see the whole thing, frankly, because if this is an exhibit and we’re only get parts of his phone that he left in Mexico, we should be seeing the whole phone that was left in Mexico.
AGNIFILO: People have been admitting exhibits on cross-examination for 230 years in this country that’s not a standard and Your Honor already ruled it’s impeachment.
PENZA: This is fundamentally unfair.
AGNIFILO: I’d just love to be able to finish my thought, which is this one of the things that I am going to do, I think there are a number — she made reference to the fact that she sent Keith Raniere naked photos of herself every day for a period of time. We have them all. We have them all because he didn’t delete them from his phone like she deleted them from her phone.
I don’t feel the need to put them into evidence, but what I do want to do, I want to question her about them. I think the most appropriate way to do it, in showing dignity and respect for the witness, is to show her these individual pages of the phone printout one by one. If she agrees with me that that’s what it is, I’m not going to dwell on it. This is a picture of your naked torso, correct? You sent it to Keith Raniere, correct? We’ll leave it at that.
THE COURT: How many times are you going to do that?
AGNIFILO: I’m going to say you did it every day for a month — or I think it’s two months, you did it every day for two months, then there are a few times where it’s relevant because she says — I don’t want to get into too much she’s not done on direct she says things in those chats that are somewhat inconsistent with what she said on direct. I’m not going to dwell on this. I’m going to establish the basic facts because they are inconsistent in my view with certain things she said on direct and I’m going to get out.
The worse thing I can do — the worse thing I can do for my client is handle this inappropriately and I’m going to do everything in my power not to.
PENZA: I just want to make a record, Your Honor, that the government is deeply disturbed by the fact that the defendant obstructed justice by having people hide his devices. Now they are in the possession of only defense counsel. Defense counsel said they did not have collateral. We viewed these naked photographs as the products of extortion as the products of fraud. For them to have it and for us not to have it in full and for them to be allowed to put it in piecemeal is fundamentally unfair.
THE COURT: Well, I’ll hold a hearing on it after the trial.
(In open court.)
THE COURT: Let’s bring in the witness.