Claviger: Pyramids, Abortions, and Kinky Sex Life of Victim — Were Keith’s Legal Rights Violated? – Part IV

This is the last post in the series concerning the various legal claims that Keith Raniere put forth in his “Call To Action”.

Prior posts in this series may be found at:

• Claviger: Were Keith’s Legal Rights Violated? – Part I: Was He Illegally Kidnapped in Mexico, Was His Arrest in the U.S. Illegal, and /or Was He Illegally Isolated From His Family & Friends?
• Claviger: Were Keith’s Legal Rights Violated? – Part II: Did the EDNY Have Proper Jurisdiction – and/or Was the Denial of Bail Improper?
• Claviger: Were Keith’s Legal Rights Violated? – Part III: Were Domino Pleas of Co-Defendants, a RICO Charge, and a Hasty Jury Improper?

In keeping with my numbering system for this series, the questions to be addressed in this post are as follows:

Ninth, were Keith’s legal rights violated because NXIVM/ESP was described as a “Pyramid Organization”?

Tenth, were Keith’s legal rights violated because the prosecution was allowed to introduce evidence concerning the abortion history of several of his past and present partners?

Eleventh, were Keith’s legal rights violated because the defense was not allowed to introduce evidence concerning the sex life of Nicole, a purported victim of sex trafficking?

Twelfth, were Keith’s legal rights violated because there was no basis for the “Forced Labor” charge?

Thirteenth, were Keith’s legal rights violated because the prosecution was allowed to introduce evidence concerning his alleged evasion of taxes?

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Were Keith’s Legal Rights Violated Because…

NXIVM/ESP Was Described as a “Pyramid Organization”?

In his “Call To Action”, Keith claimed that he was unfairly prejudiced because NXIVM/ESP was described by prosecutors as a “pyramid organization” throughout his trial – rather than as a “company” or a “corporation”.

As Raniere described it: “I supposedly create ‘pyramid organizations’ — different from normal ‘organizations’…The implication is somehow ‘pyramid’ is improper: I am at the ‘top’ or ‘apex’, control everything unchecked, in some ‘sinister’ and unspecified way. How is ‘pyramid’ different than a restaurant, private corporation, or even the US Attorney’s office? Some will say each of these likely answer to some check and balance system so even with a small, sole proprietorship — a restaurant for example — that owner must answer to the Health Department. If it were true I created businesses wherein I answer to no one, I still, in the least, answer to the law (If I didn’t, I would not be incarcerated.)…

“This label, ‘pyramid’, is a raw conduit for hate. The prosecution believes they ‘need’ to apply this hate because it increases their chance of ‘winning’. Shouldn’t the application of hate be abhorrent? Should the prosecution even be concerned about ‘winning’? What does the application of the hate-label ‘pyramid’ have to do with the pursuit of truth? Doesn’t hate obscure the truth? Don’t I, as the defendant, deserve an approach free of hate or mockery?”

I’m not quite sure why Keith believes that there was any “hate” involved in the prosecution’s decision to describe NXIVM/ESP as a “pyramid organization”.

To begin with, the term “pyramid organization” is not a pejorative term. According to Bizfluent, “The pyramid organizational structure is a popular type of leadership used in business. It’s natural because there are far fewer leaders than workers, so when all are listed on an organizational chart, it is shaped like a pyramid”.

Is there any doubt that NXIVM/ESP fits that description?

 

In addition, his complaint is coming from a guy who routinely labeled anyone that disagreed with him as a “suppressive” – which is the NXIVM/ESP lexicon is pretty much the most hateful way that a person can be described.

Sorry, Keith, but if you’re pinning your hopes on getting a new trial on the fact that the prosecutors correctly labeled NXIVM/ESP as a “pyramid organization”, I think you’d be better off buying lottery tickets.

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Were Keith’s Legal Rights Violated…

Because the Prosecution Was Allowed to Introduce Evidence Concerning the Abortion History of Several of His Past and Present Partners?

In his “Call To Action”, Keith also claimed that he was unfairly prejudiced because the prosecution was allowed to introduce into evidence the abortion records of several women that he apparently impregnated.

As he explained: “The abortion records of several of my past and present partners were allowed into evidence and presented to the jury. These are confidential records of adult women voluntarily choosing this legal option. Note: abortions have nothing to do with my charges. The majority of the members of my jury stated they believe abortion is murder. This evidential allowance violates, in the least, the intent of the HIPPA [sic] laws, shames people associated with me, and generates tremendous anger, hate, and prejudice towards me, my community, and my actions”.

Although I was initially inclined to agree with Keith’s argument, my research indicates that the most recent decisions in such matters have concluded that the Fourth Amendment does not necessarily preclude the prosecution from obtaining – and utilizing as evidence – medical records that are “privately-generated and maintained”.

In addition, other recent decisions that are relevant to this issue indicate that “HIPAA expressly permits the disclosure of otherwise protected health information when it is sought via grand jury subpoena”.

I don’t know whether the prosecution in Keith’s case got the records via a grand jury subpoena but if so, then he has little chance of winning an appeal based on an alleged HIPAA violation. In addition, unless his attorneys objected to the introduction of those records during the trial, there is virtually no chance that he will be able to get a new trial based on this issue.

I think Keith’s best argument concerning this matter is that the abortion records were “extraneous evidence” in terms of the charges he was facing. And even then, he’ll have to contend with the fact that such evidence is generally admissible to show such things as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake.

All in all, I don’t think that the admission of the abortion evidence is going to be enough for Keith to get a new trial when he appeals his conviction.

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Were Keith’s Legal Rights Violated…

Because the Defense Was Not Allowed to Introduce Evidence Concerning the Sex Life of Nicole, a Purported Victim of Sex Trafficking?

In his “Call To Action”, Keith also complained that one of the women who testified against him [Nicole] with respect to the Sex Trafficking charge had an undisclosed history of sexual kinkiness and immoderation.

As he claimed: “An essential witness for the prosecution (and an alleged victim) lives a double life: On the normal, plain side, she presents herself as child-like, family loving, and innocent. On the alternative side, she has had a significant partner with an international reputation as a sexual “bad boy” with both civil and criminal challenges relating to sex. Her alleged sex trafficking experience was a self-styled enactment of a fantasy relating directly to her past, more extreme, sexual experiences. All of her alternative activities, fantasies, and proof of these things were barred from my trial. This was allegedly to ‘protect’ the prosecution’s witness, but was done at the expense of justice”.

If I read the first part of Keith’s statement correctly, he’s alleging that the witness in question had previously been involved in a sexual relationship with a guy who has “an international reputation as a sexual ‘bad boy’…” – and who has been the defendant in both civil and criminal cases involving sex-related charges.

Similarly, if I read the second part of his statement correctly, he’s alleging that this same witness’s alleged sex trafficking incident was simply the acting out of one of her sexual fantasies that was based on her prior sexual experiences.

Despite not knowing the specifics of either allegation, it’s fairly easy to conclude that neither of them is going to be a “winner” in terms of getting a new trial for Keith. That’s because Rule 412 of the Federal Rules of Evidence specifically excludes the following type of evidence in a civil or criminal proceeding that involved alleged sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior; and

(2) evidence offered to prove a victim’s sexual predisposition.

The only exceptions to those exclusions in a criminal case are as follows:

(a) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;

(b) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and

(c) evidence whose exclusion would violate the defendant’s constitutional rights.

Given the above, I do not think that Keith will prevail in his attempt to get a new trial based on these allegations. His only hope would be to argue that the exclusion of evidence regarding the victim’s prior sexual history violated one of his Constitutional rights – and I cannot figure our which right that would be (If any Frank Report readers have suggestions for me to consider, I will be glad to re-visit this point).

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Were Keith’s Legal Rights Violated Because

There Was No Basis for the “Forced Labor” Charge?

In his “Call To Action”, Keith also complained that there was no factual basis regarding his conviction on Count 6: Forced Labor Conspiracy.

As he explained: “Firstly, the charge of forced labor. My life partner of 30 years died of cancer in November 2016. She was a prominent community leader, founder of an international women’s movement, and a beloved friend and mentor to thousands of people. The community was helping put together a memorial service for her. One person in the community, who was also in the now infamous sorority, told me she would do anything to help. She was a person to whom I had given access to as much cash as she needed to pay for things like rent, courses, and expenses incurred in traveling to and from Albany.

“Unbeknownst to me, she worked five to six hours to transcribe a video of my deceased partner for that memorial: the prosecution is calling this “forced labor”. If this person believed she should have been paid, she could have just taken the money from the cash made available to her. This “forced labor” charge, in the minimum, does not meet the “knowingness” or “coercion” elements of the crime”.

Keith sought to trivialize the forced labor charge and conviction by citing just one example of the evidence that was introduced by the prosecution to show that he and the other leaders of NXIVM/ESP often required members to provide services for no compensation or less-than-agreed-upon compensation.

18 USC §1589 provides that whoever knowingly provides or obtains the labor or services of a person by any one of – or any combination of – the following means commits the federal crime of Forced Labor:

(1) By means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person;

(2) By means of serious harm or threats of serious harm to that person or another person;

(3) By means of the abuse or threatened abuse of law or legal process; or

(4) By means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.

From a technical standpoint – which is a perfectly valid way for prosecutors to interpret statutes that proscribes certain acts – even the instance cited by Keith constitutes forced labor.

But during the course of Keith’s trial, the prosecution documented many more examples of people who were forced to provide services to NXIVM/ESP or its leaders without full compensation (e.g., all the Mexicans who came to work for the organization after being promised a decent salary only to find out that they would receive much less than promised – and not being able to complain because they were not in the country legally; all the Nannies at Rainbow Cultural Garden who were forced to kick-back part of their wages – and who likewise could not complain because of immigration-related issues; and on and on.

It wasn’t just the DOS slaves who were unpaid or underpaid for their services because they had handed over collateral to their masters. It was also many rank-and-file members of NXIVM/ESP who were forced to work without compensation – or without full compensation – for the labor they provided.

Whether it was collateral or an expired visa or something else, Keith sought to have leverage over women that he might not be able to control. And in many instances, he used that leverage to force those members to provide services for no compensation or below-market compensation.

In many ways, Keith never got past the “little bottles of poison” that he held as leverage over one of his grammar school classmates.

Given the nature of the collateral (e.g., nude pictures, salacious stories, admissions to various crimes and/or immoral acts, etc.) – or the threat of deportation – Keith reveled in being able to force women to do things for him because he had leverage over them.

Had he released their collateral – or exposed their immigration status or their other secrets – all of those women would have suffered “serious harm”.

And that’s all it really takes to warrant a conviction under 18 USC §1589.

As with the other “legal issues” he has raised in his “Call To Action”, I do not think that Keith will get a new trial based on his claim that there was no basis for the forced labor charge and conviction.

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Were Keith’s Legal Rights Violated Because

The Prosecution Was Allowed to Introduce Evidence Concerning His Alleged Evasion of Taxes?

In his “Call To Action”, Keith also complained that there was no factual basis regarding what he describes as “the charge of tax evasion”.

As he explained: “…there was no tax imposed, due, or potentially due, on any of the transactions shown by the prosecution. All transactions were straight forward, signed by the relevant party, and all transactions and monies were examined and processed by an accounting firm run by the past commissioner of the IRS. How could there possibly be tax evasion?

“Answer: it is not possible, and the elements of the crime were not even possible. The prosecution used hate and created prejudice by showing large expenditures on a credit card to imply taxes were being ‘evaded’.

Under different circumstances, it’s possible that I might be supportive of Keith’s arguments regarding this matter.

But I cannot do so in the case at hand.

To begin with, Keith was not facing a “charge of tax evasion” in the EDNY case.

Nor was “tax evasion” one of the predicate acts that were alleged in conjunction with the charge of Racketeering.

To the extent that the prosecution introduced evidence concerning Keith’s evasion of taxes – which, incidentally, went on for more than two decades and which amounted to multiple-millions of dollars of tax liability – he might be able to argue that it was “extraneous evidence” in terms of the charges he was facing.

But, once again, he’ll have to contend with the fact that “extraneous evidence” is generally admissible to show such things as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake.

All in all, I don’t think that the admission of any evidence regarding Keith’s long-standing proclivity for not paying taxes will be enough for him to get a new trial when he appeals his conviction.

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OK…so there we have it.

I have gone through Keith’s entire 4,000+ word “Call To Action” – and I have found nothing in it that will likely allow him to win (a) a motion for a new trial based on “newly discovered evidence” or (b) an appeal for a new trial based on various alleged errors that he claims occurred during the course of his six-week trial.

All in all, I think that when he gets to his assigned prison, Keith needs to settle in for a long, long stay.

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Now, I’ll move on to analyze the 44 “legal issues” that Suneel Chakravorty has raised – and on which he’ll be providing supporting evidence in future posts.

I’ll begin by giving my initial impressions regarding each of the 44 “legal issues”.

After that, I’ll respond to each of Suneel’s follow-up posts.

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I know that I had promised to respond to all the non-legal issues that are contained in Keith’s “Call To Action” – and if/when things slow down, I’ll go back and do that.

In the meantime, I think it will be much more interesting for Frank Report readers for me to review – and respond to – the various  “legal issues” raised by Suneel.