Imagine the shock that the 150 women who were members of DOS felt yesterday when they learned for the first time that the EDNY prosecutors have known for quite some time where all the DOS collateral is supposedly being held.
For reasons that are not entirely clear, that information was included in the government’s “Memorandum In Opposition” to the motion for a new trial that was filed earlier this week by Keith Raniere’s attorneys.
The government’s filing starts out by saying that the Raniere motion “should be summarily denied because it is untimely and meritless” – which are exactly the type of legal arguments that one would expect the government to make in these circumstances.
But by Page 4 of the 17-page document, the government train runs completely off the track in the section labeled “Facts Relevant To Raniere’s Motion”.
It’s in that section that the government reveals for the first time that all of the collateral that was ever collected from all the members of DOS is supposedly being held by Edward V. Sapone, a criminal defense attorney in New York City who specializes in “federal criminal defense and white-collar litigation”.
Prior to that filing, none of the DOS women had been told what had happened to all the collateral they had turned over to their “Master” to become a member of – and remain a member of – DOS.
Why the government chose to include that information in its latest filing is unclear.
Certainly, it would appear that the government could have made its argument that the motion for a new trial was untimely and meritless without mentioning the whereabouts of the collateral.
And the question as to why that information was included in the government’s “Memorandum In Opposition” becomes even more problematic given that Nicki Clyne – and several other former members of DOS – are now contending that the government’s claim about the whereabouts of the collateral is an “utter fabrication”.
What the Government Claims Happened to the Collateral
According to the EDNY prosecutors, they were told by some unnamed informant – who appears to be India Oxenberg – that Nicki was “in control of DOS-related materials, including collateral and other records, which were in the possession of her attorney, Edward Sapone, Esq.” This supposedly happened while the prosecutors were preparing for Keith Raniere’s trial.
More specifically, the EDNY prosecutors claim they were told that “after the existence of DOS became known within the Nxivm community, Clyne instructed DOS ‘slaves,’ including Michele Hatchette and India, to transfer DOS-related digital materials, including collateral, to hard drives that Clyne provided. After the materials were saved to the hard drives, Clyne instructed the group of DOS ‘slaves’ to delete the DOS materials from their own computers. Months later, Clyne told India that she had given the hard drives and other DOS-related materials to Clyne’s attorney.”
The government then goes on to explain that it served Nicki with a Grand Jury subpoena on April 9, 2019 – which was less than a month before the start of Raniere’s trial.
Per that subpoena, the government was seeking to obtain “any and all records in your possession, custody or control related to ‘DOS,’ ‘the Vow,’ or ‘the Sorority,’ including but not limited to (1) audio or video recordings of Keith Raniere and DOS ‘slaves’; (2) records identifying current or former members of DOS; (3) ‘collateral’ provided by any current or former member of DOS; and (4) electronic devices containing such records.”
Upon being advised of the subpoena, Edward Sapone immediately notified the prosecutors that if Nicki were called to testify before the Grand Jury, she would refuse to answer any questions by invoking her Fifth Amendment right against self-incrimination.
According to the government, Sapone also requested that he be provided with a letter granting Clyne act-of-production immunity with respect to the production of the requested collateral and other DOS-related materials.
The government produced such a letter – which stated, in part, that “Nicole Clyne’s act of producing documents pursuant to the subpoena will be not used against her by the Office in any subsequent federal criminal proceeding, except that her act of producing those documents could be used against her in a prosecution for obstruction of justice if she intentionally takes any criminal actions with respect to the production (including, but not limited to, altering documents or intentionally withholding documents).”
On April 10, 2019, the government claims it received an email from Sapone indicating that, despite the act-of-production immunity letter, Nicki was still unwilling to appear before the Grand Jury and/or turn over the collateral and other DOS-related materials.
According to the government, it received another letter from Sapone on April 15, 2019 in which he stated that Clyne was “asserting her act of production privilege with respect to the documents and other materials sought by the April 9, 2019 grand jury subpoena” – and in which he requested that the government seek formal act-of-production immunity from the court.
The government also claims that in that same April 15th letter, Sapone also indicated that he and Nicki were in the process of “collecting and logging documents and other materials responsive to the subpoena” – and that Clyne may seek to raise “additional potential 5th Amendment arguments” in response to the subpoena.
The government concludes this section of its latest filing with the unexplained notation that it “did not seek an order of statutory act-of-immunity for Clyne and did not obtain the subpoenaed records.”
Why Has the Government Not Moved To Seize the Collateral?
While it may be arguable that the government was too busy in April 2019 getting ready for Raniere’s trial to do whatever needed to be done to retrieve all the collateral from Nicki’s attorney, there is absolutely no reason why that hasn’t been done in the intervening 16 months since Raniere’s trial was concluded.
Imagine if you’re one of the 150 women who handed over collateral – and you’ve had no idea what became of it until yesterday’s filing.
Did Raniere bring it to Mexico with him?
Does their Master still have it?
Has it all been turned over to the Feds?
Has it been sold to some third party?
Were duplicates made?
And now you find out that – at least according to the government – it’s all been held by some guy named Edward Sapone in New York City.
Then you simultaneously find out that Nicki Clyne – the woman who, according to the government, collected all the collateral on a series of thumb-drives – claims the government’s story is a total fabrication.
Now, what the hell are you supposed to think?
Clearly, someone is not telling the truth here.
But even if the government is telling the truth, the question remains as to why it has done nothing in the last 16 months to recover materials that could ruin the lives and reputations of 150 women.
As Desi would say, somebody’s got some ‘splainin’ to do here!