As predicted by the Frank Report, Keith Alan Raniere is requesting a new trial based on what his lead attorney, Marc Agnifilo, has described as “…threats and intimidation by the prosecution, including the abuse or threatened abuse of legal process…” against Michele Hatchette and Nicole Clyne.
According to Agnifilo, Hatchette and Clyne will “provide testimony…that would have challenged material elements of the prosecution’s case and exculpated the defendant…of the most serious charges against him.”
Agnifilo has also requested that U.S. District Court Judge Nicholas G. Garaufis schedule oral arguments regarding the newly-filed Rule 33 motion for a new trial.
Given that only 10-days remain before Raniere is scheduled to be sentenced, the timeframes regarding this motion are extremely tight. Whether to schedule oral arguments is completely at the discretion of Judge Garaufis.
The prosecution is scheduled to submit its response to the motion for a new trial by 5:00 PM on Thursday, October 22nd.
Thus, unless he postpones Raniere’s scheduled sentencing on Tuesday, October 27th, Judge Garaufis will have to review today’s filings and the prosecution’s response – and then perhaps hold a hearing – all within a very limited timeframe.
Options For Judge Garaufis
Judge Garaufis could deny the motion for a new trial because the testimony of Hatchette and Clyne does not constitute “new evidence” as that term is defined in Rule 33 of the Federal Rules of Criminal Procedure.
That’s because Agnifilo already knew about the testimony that Hatchette and Clyne could provide well before Raniere’s trial ended in him being convicted on all charges back in June 2019.
Agnifilo’s response to this possibility is that “…because as a result of the Government’s threats, coercion and intimidation, set forth in the attached affidavits, these witnesses were not willing to testify at the trial, nor were they willing to come forward and provide the accounts contained in the attached affidavits.”
Agnifilo further argues that “…the Government should not be permitted to intimidate and coerce defense witnesses out of testifying and then later successfully argue that the defendant is without a post-trial remedy because the witnesses they intimidated should have testified or otherwise come forward.”
According to Agnifilo, the affidavits of Hatchette and Clyne “…show that the prosecution engaged in a systemic effort to intimidate potential defense witnesses, to create a threatening atmosphere to potential witnesses who wished to testify in support of Raniere in Court and to misuse the Grand Jury process in the days leading up to trial with the specific purpose of frustrating the defendant’s ability and constitutional right to call witnesses on the defense’s direct case. As a result of the Government’s actions, as set forth in detail below, Keith Raniere was deprived of material and exculpatory evidence that could only be secured through the truthful testimony of these witnesses.”
Judge Garaufis could also decide the matter without holding any hearing (Judges decide such matters all the time without holding oral arguments).
Or Judge Garaufis could go ahead and schedule oral arguments for Friday, October 23rd, or Monday, October 26th – and fully dispose of the matter before he sentences Raniere on October 27th.
Dangers Abound For Hatchette & Clyne
Hatchette and Clyne have thrust themselves onto a stage they may wish they never set foot on.
If their respective affidavits contain any statements that they know to be false – which is most likely not the case – they could be charged with perjury.
The same will be true if Judge Garaufis decides to hold a hearing on the matter and they are sworn in as witnesses because anything they say under oath that the government perceives to be a lie would also subject them to charges of perjury.
But once they have been sworn in as witnesses at the hearing, their biggest danger may occur if the prosecution is allowed to ask them about other criminal matters they may have been involved in – or heard about – while they were part of NXIVM or DOS.
Say, for example, whatever happened to the “collateral” they collected from the women in their respective slave pods.
Or their assigning one or more of their slaves to have sex with Keith Raniere (At one point, the prosecution indicated that all of the first-line masters could have been charged with crimes).
If this request results in a lot more work for the prosecutors, they may decide to re-open the investigation that resulted in Raniere’s conviction – and in guilty pleas being agreed to by his five co-defendants: Clare Bronfman, Allison Mack, Lauren Salzman, Nancy Salzman, and Keith Russell.
If that happens, then Hatchette and Clyne will almost surely be indicted themselves.
And they won’t be the only ones…
Excerpts From Hatchette’s Affidavit
In her 20-page affidavit, Hatchette made numerous statements that, if true, could be damming for the prosecution. Some examples of those are as follows:
“…I was threatened by the prosecution and feared an unfounded indictment if I did testify” on behalf of Keith Raniere.
“Nicole’s testimony that she was told of the master/slave relationship within DOS only after joining is, I believe, false. I was enrolled into DOS before Nicole and as just mentioned above, was informed prior to joining that the relationship would have this ‘master/slave’ dynamic.”
“My testimony regarding the enrollment process into DOS would have stood in stark contrast to the government’s theory, supported by Nicole’s referenced statement, that women were somehow misinformed and deceived into joining the group. Again, my experience was that I was presented with all the necessary information to evaluate whether or not I wanted to join DOS before making the decision and I made sure to communicate these same critical points to women I later invited into the group so they too had this information.”
“At trial, Nicole testified that her relationship with India was used against her to make Allison “happy” for the “benefit” of Mr. Raniere… I would have been able to offer a critical perspective on Nicole’s claim, as it was not my experience that Ms. Mack “used” the women against each other as Nicole described.”
“Nicole’s testimony gave, in my opinion, a false and misrepresented perspective of what DOS was like for all the women who were mentored by Ms. Mack because her description of several events and the nature of DOS in general, do not match my experience. I believe this was undoubtedly influenced by the government, which advanced a theory that the women who Ms. Mack mentored, in particular, were there only to serve as “sex slaves” for Mr. Raniere.”
“In sum, my trial testimony would have seriously undermined the testimony of Nicole, and would have been wholly inconsistent with the government’s core premise of the Forced Labor and the Sex Trafficking charges.”
“When I refused to adopt the government’s view of my experience with Mr. Raniere and my time in DOS, the government continued to press me to change my account of events by showing me communications that Mr. Raniere appeared to have with another person. The prosecutor said there was something they wanted me to see because they thought it might “help” me and stated ‘this isn’t something we normally do’. The government then brought into the interview room a number of pages of written communications purportedly between Mr. Raniere and Camila.”
“In particular, the government asked me to read the passages where Mr. Raniere makes reference to a ‘fuck toy’. As directed, I read the portions of these passages. It is worth highlighting that these communications had nothing to do with me, and that the government had no purpose in showing me these communications other than to, I believe, to compel me to change my mind. I believe the only purpose the government had in showing these communications to me was to cause me to view Mr. Raniere in an unfavorable light and my interactions with him to have been crimes committed against me without my consent.”
“When my attorney told Ms. Penza it was unlikely that I would meet with them again, Ms. Penza told Mr. Greenblum [her attorney] that they were interested in having me prep with them for trial because they were planning to call me as one of their witnesses and were prepared to subpoena me to testify if I declined their request.”
Excerpts From Clyne’s Affidavit
In her much shorter – and much less bombastic – 5-page affidavit, Clyne made some statements that, if true, might be somewhat problematic for the prosecution. Some examples of these are as follows:
“Two days later, and with less than a month until Mr. Raniere’s trial, I received a Grand Jury subpoena. Jury selection had already begun, so my attorney and I reasonably assumed the investigation for his trial had concluded. According to Mr. Sapone, when he called Ms. Penza regarding the subpoena immediately after receiving it, she made the following chilling statement: ‘First, we are going to cut the head of the snake off and then we’re coming for the body. This is not going away for her’. At this point, although I desired to testify, due to what I perceived as a retaliatory threat, coupled with their Grand Jury subpoena, my lawyer advised me not to testify and I complied.”
“It is my belief that the Government knew I would testify in a manner wholly inconsistent with their core premise that DOS was created and existed for the purpose of sex trafficking and forced labor. More specifically, I would have testified that women chose to participate in DOS voluntarily and benefitted greatly from its practices. When I observed women want to and inevitably leave DOS, I never witnessed any threats or negatives consequences enacted upon them by Mr. Raniere or other women in DOS; and I am most certainly not aware of anyone’s collateral being released. I would have testified that DOS had a notable and worthy purpose that many sincere, law-abiding women, such as myself, were participating in. I would have testified that I represented DOS accurately and consistently when I invited someone, most particularly relating to Mr. Raniere’s involvement or lack of involvement. Additionally, I would have testified that I was never asked by Mr. Raniere to commit criminal acts, nor did I witness any crimes such as sex trafficking, forced labor, or others.”
“Had I given testimony, I would have provided the jury and the Court with an entirely different perspective about NXIVM, DOS and Keith Raniere than what was presented by the prosecution and its witnesses, namely Nicole, Jay, Sylvie, Lauren Salzman and Mark Vicente.”
“I have deep sympathy for Ms. [Lauren] Salzman and the dilemma she faced before entering into a cooperation agreement with the Government. Once she did, I imagine she felt tremendous pressure to offer beneficial testimony that would secure the prosecution’s recommendation for leniency in her sentence. I also imagine she learned a number of difficult, personal things from the Government during the time leading up to the trial that left her distraught, and may have contributed to the dramatic difference in her testimony to how I perceived her the last fifteen years.”
“In sum, if I had been able to testify, I would have shared my personal experience, and offered additional supporting evidence in my testimony. I believe I would have given the Court and the jury a vastly different perspective on DOS and the complex and nuanced relationships that were the focus of Mr. Raniere’s trial. The salacious media attention surrounding the NXIVM community, fueled by the Frank Report, created an environment conducive to an atmosphere of false perception, and much of this was echoed by the Government’s claims. These perceptions wholly contradicted my own direct experience and the knowledge I have about Mr. Raniere, NXVIM and DOS over the last decade. Had I not been frightened by the threat of retaliatory action by the Government, I would have chosen to testify.”
What Lies Ahead?
While there is zero chance that Judge Garaufis will grant a new trial based on the affidavits submitted by Michele Hatchette and Nicki Clyne, it is less certain whether he will hold a hearing on the matter.
If that happens, then the entire NXIVM investigation could get re-opened – and lots more people pulled into the web that has, thus far, resulted in five plea deals and one conviction.
Unfortunately for Michele and Nicki, their willingness to be part of this last-minute attempt to further postpone Keith Raniere being held accountable for his part in establishing – and heading up – the NXIVM criminal enterprise, may come back and cause them great harm.
It’s no surprise that Keith Raniere would be willing to let these two women sacrifice themselves in an attempt to save him from his fast-approaching day-of-reckoning.
But it is surprising that a criminal defense attorney with Marc Agnifilo’s credentials would resort to such tactics on behalf of a client that he knows to be guilty of the crimes of which he was convicted – and so much more.
It’s also surprising that Agnifilo failed to address the gaping hole in his theory of why Raniere is entitled to a new trial: there is no evidence whatsoever that he attempted to call Michele or Nicki as defense witnesses – and that they declined to do so because of their stated fears about what the prosecution might do to them in retaliation. Had that actually happened, there would surely have been an affidavit to that effect from him or one of Raniere’s other attorneys.
But there isn’t any such affidavit to be found in today’s filing…