Keith Raniere Files Appeal; Seeks to Have Conviction Overturned

Attorney Jennifer Bonjean has filed an appeal of Keith Raniere’s 2019 conviction to the United States Court of Appeals for the Second Circuit.

On April 19, 2018, Raniere was indicted on a number of offenses including sex trafficking, sex trafficking conspiracy, and forced labor conspiracy. Two superseding indictments followed and Raniere was also charged with RICO conspiracy, RICO, wire fraud conspiracy, and attempted sex trafficking. After a six week trial in 2019, a jury returned a verdict of guilt as to all charges, and District Court Judge Nicholas G. Garaufis sentenced Raniere to 120 years’ imprisonment on October 27, 2020.

He is now appealing his conviction.

Read the entire appeal here:

The main issues of the appeal are:

1.  Whether the government proved Raniere guilty beyond a reasonable doubt of
   1. sex trafficking
   2. conspiracy to commit forced labor and forced labor of Nicole
   3. sexual exploitation of a child [Cami]
   4. conspiracy to alter records in an official proceeding [Ross case]
   5. Conspiracy to commit identify theft of Pam Cafritz.
2. Whether the government proved the Defendant guilty of RICO and conspiracy to commit RICO due to insufficient evidence of:
   1. an enterprise
   2. a pattern of racketeering.
3. Whether Raniere was deprived of his Fifth and Sixth Amendment constitutional guarantees where
   1. the government swamped the jury with a mass of highly prejudicial evidence related to Raniere’s sex life.
   2. Judge Nicholas Garaufis prematurely terminated defense counsel’s cross-examination of Lauren Salzman, the key cooperating witness.
   3. The judge required the parties and the witnesses to refer to individuals designated by the government as “victims” only by their first names or pseudonyms, signaling to the jury that Defendant should be presumed guilty.

SUMMARY OF ARGUMENT

… In a transparent attempt to plead around the statute of limitations, the government alleged that Defendant and his “inner circle” comprised an enterprise whose purpose was to “promote” the Defendant.

Because the members of an enterprise must have more in common than a collective admiration for its purported leader, that is, they must have a common purpose of engaging in a course of conduct and must function as a continuing unit, the government’s evidence that Defendant’s “inner circle” constituted an enterprise for RICO purposes was insufficient.

Separately, the government failed to demonstrate a pattern of racketeering activity where no two racketeering acts were sufficiently related, but rather amounted to isolated and sporadic offenses unconnected to any enterprise.

The government’s proof was insufficient as to a number of other counts, including all sex trafficking offenses where the government failed to show any commercial sex acts (intended or completed) that were caused by threats of harm.

Similarly, Defendant’s forced labor conviction must be vacated where no DOS members were living in a condition of servitude and whatever small tasks or “acts of care” they completed did not amount to the type of “labor or services” contemplated by the forced labor statute.

The government’s proof was also insufficient as to Defendant’s convictions for sexual exploitation of a child where Camila did not testify and the jury was not permitted to assume that Defendant committed the conduct prohibited by the statute simply because he allegedly possessed the pornographic images.

The government successfully distracted the jury from its deficient proofs in a calculated attempt to breed hatred for the Defendant and indifference to his constitutional guarantees, including the right to be convicted only by proof beyond a reasonable doubt. The District Court sanctioned this strategy when it gave the government carte blanch to convert Defendant’s trial on the charged offenses into a trial on his moral character and treatment of women with whom he had consensual relationships.

The jury was inundated with incalculably prejudicial evidence about Defendant’s controversial sex life that was of marginal relevance and had the effect of luring the jury into finding the Defendant guilty of the charged offenses based on emotion…

The District Court’s own strong emotions about Defendant’s guilt interfered with a number of Defendant’s constitutional rights, including the presumption of innocence, when it forced the parties to refer to witnesses who the government designated as “victims” by first names or pseudonyms before the government proved its case. This practice served to signal to the jury that Defendants should be presumed guilty.

Defendant further suffered unquantifiable prejudice when the District Court prematurely terminated defense counsel’s cross-examination of the government’s key cooperating witness in violation of his Fifth and Sixth Amendment guarantees…

ARGUMENT

A. The Government’s Proof of: (1) a Commercial Sex Act; that (2) Was the Product of Coercion or Fraud Was Insufficient.

Defendants’ convictions related to sex trafficking must be vacated where:

1.  the government’s evidence showed that no commercial sex act was intended, initiated, or completed as to any DOS “slaves,” including Nicole, Jay, and Sylvie;
2. Nicole’s year-long intimate relationship with Raniere was not the product of any coercion or fraud.

1. Sex Trafficking of Nicole (Act 10A and Count 6)

Turning first to the completed act of sex trafficking of Nicole, the government offered insufficient evidence that “anything of value” was given or received on account of Nicole’s sexual experiences with Defendant that commenced on May 31, 2016 and persisted for over a year. Nicole engaged in a sexually intimate relationship with Defendant that was conducted almost exclusively outside the domain of DOS.

Apart from the initial sexual encounter that allegedly occurred on May 31, 2016, Nicole described an extended relationship with Defendant that was unconnected to DOS. (R.3943; 3956) Even Nicole’s so-called DOS “master,” Allison Mack, was in the dark about the relationship, because Defendant did not want to arouse Mack’s jealousies.

Given the secrecy in which Defendant and Nicole conducted their relationship, the government’s contention that Mack
received some type of benefit because Defendant was sexually intimate with Nicole is illogical.

Recognizing the flaw in its reasoning, the government took the position that the May 31, 2016 incident, during which Nicole was blindfolded and brought to an undisclosed location where another person performed oral sex on her, constituted the requisite commercial sex act.

The government posited that the May 31, 2016 incident was commercial in nature, because Mack received certain privileges such as “maintaining a spot in the first line [of DOS]” by soliciting women into DOS.

The government distorts the meaning of “commercial sex” beyond recognition. First, “maintain[ing] a spot in the first line of DOS” cannot qualify as a “thing of value” in the context of commercial sex services.

Section 1591 was designed to punish sexual exploitation for economic profit, not sex acts with unsubstantiated connections to vague, unquantifiable benefits…

Second, even if it could be said that Mack received advantages in exchange for her recruitment of women into DOS, it does not follow that Mack received “anything of value” specifically on account of Nicole’s sexual encounter with the Defendant on May 31, 2016 – or on any other day…

The government conflated the supposed benefits that Mack received as a result of being a first line DOS master with economic benefits that must be shown to have flowed directly from the May 31st sex act.

Mack did not testify, of course, that she received any benefits, economic or otherwise, on account of Nicole’s sexual encounter with Defendant on May 31, 2016.

Rather, the evidence revealed that Mack, like other first-line DOS masters, received certain perks like “acts of care” on account of being in a master-slave relationship with Nicole to which Nicole consented, not because Nicole had sex with the Defendant. Case in point, Salzman, who received the same benefits as other first line masters, had no knowledge that sex with the Defendant was integral to DOS membership, and her “slaves” were not engaged in sexual activity with Defendant.

The government’s attempt to create a nexus between the sex acts and the “acts of care” fails. Nothing in the record supports the inference that if Mack did not produce DOS slaves for sex with Defendant, she would lose her status in DOS. Any benefits Mack received as part of DOS were not directly or indirectly related to the May 31, 2016 episode.

…. Whatever benefits Mack received as a first line DOS “master” were not connected to specific sexual acts between Defendant and Nicole. Thus, the government failed to establish a commercial sex act which is fatal to count 6 and act 10A.

… the government failed to put forth adequate evidence that Nicole engaged in the May 31, 2016 sex act (or any other sex act with the Defendant) as a result of coercion or force, including a fear that her collateral would be released if she refused to submit.

Immediately after the May 31st incident, Nicole wrote a journal entry that signaled no regrets about her sexual experience with “Keith,” declaring that she was done “fighting the growing process” and was “excited about embracing the vow and working with Keith . . .”

Nicole complained to Mack about a litany of things, but her sexual adventure with “Keith” was not among her complaints. When Nicole bemoaned the chaos in her life, suggesting that frequent trips to Albany were burdensome, Mack criticized Nicole but ultimately stated “choose as you wish.”

Nicole’s email communications with Mack do not depict someone reluctant to express her true feelings. Not once did Nicole suggest that she felt coerced into any sexual acts nor did she convey any concern about the release of her collateral if she declined sexual activity with the Defendant. Even when she unloaded on Mack, Nicole voiced no outrage, surprise, or disgust about the May 31, 2016 incident. Nicole admitted that she felt “fine” after the experience and thought it might be a good thing.

It is unfathomable that a near-30 year old woman would have remained silent in the wake of such a dramatic encounter wherein she was allegedly taken against her will, blind-folded, tied down, and subjected to non-consensual oral sex at the direction of her friend and mentor. Her silence is particularly telling under the circumstances, because she regularly complained to Mack about any number of less consequential matters.

Nicole’s subsequent lengthy and private relationship with Defendant belies the government’s claim that she feared “serious harm.” Importantly, during that time period when Nicole told Defendant that she did not want to be sexually intimate with him, her request was honored. …

while it is true that Nicole testified at trial that she feared release of her collateral if she left DOS, she never testified that she feared release of her collateral if she did not engage in sexual activity with the Defendant.  And of course, Nicole ultimately left DOS, as did other DOS “slaves” without the consequence of having their collateral released.

Even taking Nicole at her word that she never would have joined DOS had she known that Defendant was the architect of the group, the government was still required to demonstrate a nexus between the coercion and the May 31, 2016 sex act; it’s [sic]evidence is lacking on this element.

2. Sex Trafficking Conspiracy (Count 5) and Attempted Sex Trafficking of Jay (Count 7)

Like count 6 and act 10A of the indictment, the government’s evidence in support of count 5 (sex trafficking conspiracy) and count 7 (attempted sex trafficking of Jay) of the indictment was insufficient to establish Defendant’s guilt….  the government offered no evidence that Defendant intended or entered into an agreement to engage in commercial sex activities. …

Even if the government is correct that the Defendant and Mack entered into an understanding whereby Mack recruited women into DOS so that the Defendant might have sex with those women, the record is devoid of any evidence that there was an agreement to engage in commercial sex acts…The record fails to reflect that the moving force behind Mack’s (or any other first-line “master”) directions to “seduce” Defendant was for economic benefit, including so-called “acts of care” which was a common theme of NXIVM…

Accordingly, the commercial element of the sex-trafficking charges is wholly lacking. To find otherwise would be to omit the commercial aspect of sex trafficking and convert the distinct crime of sex trafficking into a garden-variety sex crime.

B. The Government Did Not Prove that Defendant Agreed To or Did Obtain Labor or Services from Nicole Through Threats of Serious Harm

The jury found that between February 2016 and June 2017, Defendant knowingly obtained labor and services of Nicole by means of threats of serious harm (Act 10B) and had engaged in forced labor a conspiracy for the same time period charged in a separate count of the indictment (Count 3). No rational juror could conclude based on the evidence adduced at trial that Defendant knowingly obtained, or agreed to obtain, any labor or services from Nicole or any other DOS slave…

Section 1589, the forced labor statute, was “passed to implement the Thirteenth Amendment’s [prohibition] against slavery or involuntary servitude.”… “Congress intended to reach cases in which persons are held in a condition of servitude through nonviolent coercion” as well as through “physical or legal coercion.”….

The forced labor statute was not intended, however, to cover the “acts of care” that were expected from members of DOS and the NXIVM community as a whole.

…this Court should resist the urge to transform the forced labor statute to cover the circumstances alleged in act 10B and count 3 of the indictment which bear virtually no resemblance to those paradigmatic forced labor cases and their victims. (describing prostitution, forced sweatshop work, and forced domestic service as “paradigmatic forced labor cases.”)

The government urges an unreasonably broad interpretation of “labor or services” to include isolated personal favors and kind gestures that were understood as such in the context of DOS. To conclude that Nicole’s occasional “acts of care” for Mack and an isolated incident where she transcribed Cafritz’s speeches for her memorial service qualifies as a “condition of servitude” or the type of “labor and services’ intended under the statute renders the purpose of the force labor statute meaningless.

Under government’s expansive interpretation of “labor and services,” even Jay’s act of sending a poem to India electronically would constitute the types of “labor and services” prohibited by the forced labor statute.

Even if “acts of care” could be construed as “labor or services,” the record shows that Nicole knowingly consented to these types of activities as part of her membership in DOS. Nicole did not testify that Mack concealed the fact that she would be expected to do “acts of care” as a member of DOS, and Lauren Salzman testified that when she became a member of DOS herself and when she enrolled others, she explained that the group involved a master-slave dynamic and that “acts of care” were part of the vow of obedience.

In fact, “acts of care” was a well-accepted tenet of the entire NXIVM community.

The record is devoid of evidence that Nicole, Jay or Sylvie feared “serious harm,” physical or otherwise, including the release of any of their collateral, if they refused to participate in “acts of care.” Thus, no reasonable juror could conclude that Nicole harbored an objectively reasonable fear that her collateral would be released if she refused to run errands for Mack which was a task expected of all members of DOS. In fact, the record reflects that DOS slaves routinely failed to live up to the expectations of their DOS masters and no threats were made to release collateral, rather they were expected to do “penance.”…

the government’s application of the forced labor statute to these circumstances strips all meaning from the concept of “forced labor” and “involuntary servitude.” Neither Nicole, nor any other DOS “slave” was held in a “condition of servitude” as contemplated by the forced labor statute…

C. Where Camila Did Not Testify, the Government Failed to Prove the Child Exploitation Charges,
Allegedly Committed on November 2 and 24, 2005.

Defendant was charged with two acts of sexual exploitation of a child and possession of child pornography in connection with a number of nude photos of a 15-year-old Camila that were recovered from a hard drive located in the residence of 8 Hale Drive. Because Camila did not testify, the mere presence of photos on a back-up drive recovered from a location to which Defendant and countless others had access was insufficient to establish that Defendant intentionally induced or coerced Camila to take part in sexually explicit conduct 13 years earlier.

Although the government allegedly discerned through forensic analysis of a camera card that the photographs recovered from a hard drive were taken on November 2 and 24, 2005,3 no evidence was presented at trial regarding the circumstances of how the photos came to be in existence or maintained on the hard drive.

Although Defendant does not contest that the photos admitted into evidence …. are photos of Camila, the photos alone, even if recovered from a hard drive to which the Defendant may have had access at some point in time, cannot establish by proof beyond a reasonable doubt that Defendant employed, used, persuaded, enticed, coerced Camila to participate in the taking of the photographs on November 2 and 24, 2005 – over 13 years before they were recovered.

To hold otherwise would be to conflate the offense of possession of child pornography and sexual exploitation of a child which requires a showing of something more than mere possession of the pornographic material.

Without Camila’s testimony, the origins of Defendant and Camila’s relationship is simply unknown. However, the government presented some evidence through Daniela’s testimony and messages between Camila and Defendant that suggest their relationship began before her 16th birthday. But the mere fact of an inappropriate, even sexual relationship, does not satisfy the government’s burden since the record is devoid of any specific evidence regarding what, if anything, occurred on November 2 and 24, 2005…

the government presented no evidence of Defendant’s conduct on November 2 and 24, 2005. Thus, the jury was forced to speculate not only about the conduct that occurred but whether the Defendant possessed the requisite state of mind. In short, the mere presence of nude photos of Camilla on a hard drive that untold numbers of people had access to discovered 13 years after the picture was allegedly taken simply cannot prove that Defendant took the photo in the manner and for the purpose prohibited by the statute in November 2005…

Defendant’s alleged possession of the pornographic material is not synonymous with taking the photographs…

D. The Government Failed to Prove Conspiracy to Alter Record for Use in an Official Proceeding (Act 6).

To establish conspiracy to alter records for use in an official proceeding pursuant to §1512(c)(1), the government had to prove that a Defendant or a co-conspirator altered the video-tapes that were produced in the civil litigation NXIVM Corp., et al., v. Ross Institute, et al., … with the intent of impairing the availability of the video footage for use in an official proceeding.

There is no question that the government presented evidence that Mark Vicente altered or directed the alteration of certain video tapes at the direction of Defendant. But the evidence does not show that any party did so with the intent to impair the availability of the video footage for use in an official proceeding or with the purpose of impeding the administration of justice. The record is devoid of evidence showing that Vicente or any other co-conspirator altered the videos with the intent to interfere with any official proceeding, including the one charged in the indictment.

When asked if the Defendant told Vicente whether the videos would be produced in a “case,” Vicente responded, “[i]t was some case and that the – there was some case that the patent would be at risk because of what was in the tapes.” Vicente did not testify what he
meant by “case” nor did claim to know that an official proceeding was underway or imminent as a result of the patent issues. Vicente did not admit that that he intended to impede the administration of justice.

Even when the prosecutor asked leading questions of Vicente, Vicente did not affirm that he intended to interfere with an official proceeding, as defined by §1515(a)(1) (R.670)

After some strong-arming, the prosecution successfully elicited testimony from Vicente that as he sat in court testifying, he understood that the alteration of the videotapes was illegal. But Vicente never conceded that at the time he directed the alteration he knowingly or intentionally did so with the purpose of obstructing an official proceeding. Thus, the government failed to establish the mental state necessary to prove act …

Vicente was unable to confirm that GX605A-D were the videotapes that were altered at his direction or Defendant’s direction. Over defense counsel’s objection, the court permitted the videotapes to be introduced into evidence despite the government’s inability to prove that Defendant, or Vicente, or any other co-conspirator altered GX605A-D.

Because the government failed to prove that any video tapes altered by Vicente’s team were, in fact, produced in the NXIVM civil case or that at the time he directed the alteration of the video, Vicente possessed knowledge that it would be produced in an official proceeding, the government’s proof as to act 6 is insufficient.

E. The Government Failed to Prove Act 11 Where No Competent Evidence Was Put Forth to Show that Defendant: (1) Acted Without Authority or (2) That He Did So With the Intent of Evading Tax Liabilities.

It is undisputed that Defendant and Pam Cafritz were long-term partners who had lived together for decades. In fact, according to the government, Cafritz was a co-conspirator, a member of Defendant’s socalled inner circle, and his “fixer.” Cafritz named Defendant both executor and sole beneficiary of her estate.

Despite this relationship, the government opined that Defendant did not have authority to use her credit card or pay bills from her accounts after she passed and that Defendant used her credit card and paid bills from her bank accounts for the purpose of committing tax evasion.

At the outset, the government offered only conclusory testimony, lacking foundation and based entirely on hearsay statements of another, that Defendant did not have authority to use Cafritz’s American Express card and to access her bank account to pay expenses…Furthermore, the government failed to demonstrate that Defendant’s use of Cafritz’s American Express and/or monies from her account was related in any way to any agreement between Defendant and another to commit the crime of tax evasion.

`In order to prove act 11, the government was required to demonstrate that Defendant, and his conspirators, intended to engage in conduct that constituted the offense of tax evasion. The substantive crime of tax evasion requires proof of: the existence of a substantial tax debt; (2) willfulness of the nonpayment, and (3) an affirmative act by the defendant, performed with intent to evade or defeat the payment.

… Although the government bombarded the jury with anecdotal evidence that Defendant and other members of NXIVM questioned the federal government’s right to tax income of its citizens (as does anyone who considers himself a Libertarian), and hired accountants to mitigate NXIVM”s tax liability (as most taxpayers do), the government did not offer a scintilla of evidence that Defendant ever failed to pay his taxes or that he had a “substantial tax debt.” The government further failed to show that Defendant’s motivation in using Cafritz’s resources (of which he was the sole beneficiary) to pay bills was an intent to avoid paying taxes rather than a continuation of how bills were paid prior Cafritz’s death….

… the government’s proof was insufficient as to a number of counts and acts that went to the jury. Accordingly counts 3, and 5-7 must be vacated, and acts 2-3, 6, 10-11 may not considered as grounds for demonstrating a pattern of racketeering activity.

II. Defendant’s RICO Convictions Must Be Reversed Where the Government Failed to Prove an Enterprise and a Pattern of Racketeering Activity.

… Defendant’s RICO convictions cannot be sustained where the government failed to show a pattern of racketeering activity.

A. Insufficient Proof of an Enterprise

…. Here, the government did not allege that NXIVM, a formal business entity, was the racketeering enterprise for purposes of the RICO statute, nor did it allege that DOS, a secret society, was the racketeering enterprise for purposes of satisfying the RICO statute. To maximize the reach and scope of the alleged enterprise, the government charged that the Defendant and his “inner circle” was an informal group that constituted the enterprise for purposes of satisfying the RICO statute.

According to Lauren Salzman, the Defendant’s “inner circle” consisted of herself and a whopping 24 other people, some of whom were mentioned only in passing during Defendant’s trial.

In order for Defendant’s “inner circle” to qualify as an enterprise under the RICO statute, the government was required to show that the associates of the “inner circle” had a common purpose to engage in a course of conduct and that they functioned as a continuing unit. The government proved neither. Rather, the government proved only that the Defendant, himself, was the enterprise since he is the only member of the group that connects the racketeering acts allegedly committed under NXIVM and DOS.

First, the government failed to show that the “inner circle” shared a common purpose to engage in a fraudulent course of conduct and worked together to achieve that purpose. The best the government could show in terms of a “common purpose” was “a commitment” to the Defendant. A shared loyalty to the Defendant simply does not qualify as common purpose to engage in a course of conduct.

Conduct refers to behavior, and the government offered no evidence that the “inner circle” together engaged in a course of conduct for some identifiable common purpose.

Notably, none of the three members of the so-called “inner circle” who testified at Defendant’s trial (Salzman, Vicente, Daniela) articulated a course of conduct in which all members engaged to carry out a common purpose of the enterprise. For example, Vicente adamantly denied having any knowledge of or participating in any conduct that related to nearly all of the racketeering acts charged in the indictment. Daniela, also an alleged member of the inner circle, was allegedly ostracized from the “inner circle” in 2008 and was purportedly a victim of the enterprise, not a member of it.

For her part, Lauren Salzman could not articulate the common purpose of the “inner circle” except to say that the “inner circle” had a commitment to the Defendant. Other than a shared purpose to support the Defendant, the government did not identify any course of conduct in which the “inner circle” engaged for a common purpose.

Second, the government did not prove that the members of the “inner circle” functioned as a “continuing unit.” Quite the opposite. Some members of the “inner circle” were associated entirely with the legitimate business activities of NXIVM or ESP with no factual basis to believe that that they were involved in or condoned a “fraudulent course of conduct.” Some members were part of the NXIVM’s leadership, like Nancy Salzman and Clare Bronfman, who allegedly were involved in certain criminal conduct related to NXIVM but not DOS. And some members had virtually no clout within NXIVM but were members of DOS, a secret society, separate and discrete from NXIVM. Indeed, the Defendant’s “inner circle” – the so-called enterprise – was nothing more than a hodgepodge of people from a wider community who did not share an agenda to engage in a course of conduct but were connected only by their reverence or desire for the Defendant.

Simply put, the “inner circle’s” shared devotion to the Defendant without a common purpose to engage in a course of conduct is not sufficient to demonstrate an enterprise.

…. the government proved only a loose and discontinuous pattern of associations among the “inner circle” with no common purpose to engage in a course of conduct and further failed to show that the group functioned as a continuing unit, the government’s evidence of an enterprise is insufficient.

B. Insufficient Evidence of a Pattern of Racketeering Activity

… the government failed to demonstrate a pattern of racketeering … Indeed, the predicate acts consist of a medley of sporadic offenses with no connection to the alleged enterprise or each other.

1. DOS-Act (Acts 9 & 10) …the government failed to prove that the DOS acts were related to any other charged racketeering acts or the enterprise. Guided by H.J., Inc., act 9 (state law extortion) and act 10 (sex trafficking and forced labor of Nicole) do not share the same or similar purpose as any other Non-DOS racketeering acts or the child exploitation acts (acts 2-4).

The DOS acts identify Nicole and other lower-ranking DOS “slaves” as the victims of these crimes during the time period of September 2015 through June 2017. No other charged racketeering acts identify DOS slaves as victims and the DOS acts occurred long after the other charged racketeering acts.

…. coercing Nicole and other DOS “slaves” to provide collateral to engage in sex acts with the Defendant out of fear that earlier collateral would be released, bears no similarity to any of the other charged racketeering acts, all of which occurred long before DOS was in existence.

Furthermore, the purpose of these acts which was allegedly to sexually gratify the Defendant and provide status and labor to first-line “master” Allison Mack is vastly different than the purpose of the Non-DOS acts and the child exploitation acts which occurred 13 years earlier. Indeed, it is clear that the DOS acts stand alone, related to each other but no other acts….

… the government … claimed that the enterprise consisted of Defendant’s “inner circle” and that the purpose of the enterprise was to “promote the defendant,” presumably in an effort to satisfy the vertical relatedness requirement for the mélange of charged racketeering acts. As discussed above, the government did not prove a single enterprise of Defendant and his “inner circle.” Thus, it cannot show that the DOS acts are vertically related to the enterprise.

If courts were to recognize that the mere “promotion” of the alleged leader of a group constitutes a common purpose to engage in a course of conduct, the vertical relatedness requirement would mean nothing. After all, any charged act against the Defendant could arguably be related to an enterprise whose purpose is to promote the Defendant. Because the DOS-acts are not sufficiently related to any other racketeering acts, nor can there by vertical relatedness when the enterprise’s alleged common purpose is so broad as to be meaningless, the DOS-acts do not show a pattern of racketeering activity.

2. Sexual Exploitation and Possession of Child Pornography Acts (Acts 2-4)

The sexual sexploitation of Camila acts and possession of child pornography (acts 2-4) relate to each other but no other charged racketeering acts.

Camila is identified as the victim in these charges whereas is she is not identified as a victim in any other racketeering act, and the other racketeering acts involve no other child victims. The child exploitation acts occurred in 2005 long before the bulk of any other racketeering acts. The method of commission of these acts, although unknown since Camila did not testify, is generally that Defendant induced her to pose for lascivious photos that he saved but never looked at again.

No distinguishing characteristics exist between the exploitation acts and the other racketeering acts…. These acts, to the extent they were proven, were isolated events.

3. Non-DOS Acts

The government charged a number of miscellaneous Non-DOS acts that bore no relationship to the DOS acts or child exploitation charges and were largely unrelated to one another.

a. Act 1: Conspiracy to Commit Identity Theft and Unlawfully Possess identification Document

Act 1 relates to Defendant’s alleged efforts to help Daniela enter the country unlawfully after her visa was revoked. This offense was clearly an isolated event, unique to the circumstances of the moment. It shared no distinguishing features with the child exploitation acts, and it occurred over a decade before the DOS acts.

As for other non-DOS acts, act 1 bore no commonalities with charges related to identity theft of Loperfido, Bronfman, and Marianna or any efforts to alter video-tapes to obstruct an official proceeding (act 5-7).

According to the government, Defendant sought to “hack” the email accounts of Loperfido and Bronfman primarily to find damaging information with which to discredit them and directed the alteration of videotapes to obstruct a civil litigation.

In contrast, he intended to access Marianna’s account to determine whether she was communicating with another man. The purpose of these crimes had no connection or relationship to helping Daniela enter the country unlawfully….

Lastly, act 1 is not related to the forced labor charges set forth in act 8, notwithstanding that Daniela was the alleged victim of act 8. Act 8 charged Defendant with forced labor and involuntary servitude of Daniela under threat of being sent back to Mexico without her birth certificate.

According to Daniela she was confined to a bedroom in her home where she was forced to write letters to Defendant and complete book reports to earn her release. Defendant did not assist Daniela’s return to the U.S. to lock her in a room. The events were unrelated and unconnected both factually and by temporal proximity. Act 1 also has no relatedness to the enterprise, not only because no enterprise with a common purpose was proven but because act 1 was carried out for the benefit Daniela and only Daniela.

Daniela admitted that she was desperate to return to the United States. While it may have been unlawful to assist her in returning, the crime was clearly an isolated event with no risk of repetition and no connection to any common purpose of the enterprise.

b. Acts 5 & 6: Identity Theft of Loperfido and Bronfman and Conspiracy to Alter Records in Official Proceeding.

… the government did not establish an enterprise that extended beyond the Defendant himself. Rather, the enterprise consisted of an ad hoc group of individuals who shared a loyalty to the defendant and not much more. Thus, even if acts 5 and 6 could be connected to each other, the government failed to show their relatedness to the enterprise.

c. Acts 7 & 8: Identify Theft of Marianna and Forced Labor of Daniela. Act 7 is an isolated or sporadic offense related to Defendant’s interest in learning whether Marianna was communicating with other men; it has no distinguishing characteristics with any other racketeering activity nor is it related to any enterprise. Even if the government had pled that the enterprise was either NXIVM or DOS, this act relates to neither.

Similarly, the forced labor counts related to Daniella’s confinement to her bedroom cannot be linked to any other racketeering act….

d. Act 11: Conspiracy to Commit Identify Theft of Pam Cafritz.

Act 11 which charges Defendant with using Pam Cafritz’s credit card and paying bills from her account without authority and for the purpose of tax evasion is yet another isolated charge, committed in a manner dissimilar to any of the other charged identity theft acts, involving entirely different players, and having a purpose unrelated to any other racketeering acts….  it is simply one of many random charged acts cobbled together in an attempt to create a non-existent pattern of racketeering activity.

In sum, the government’s evidence of a violation of RICO falls short at every turn. No single enterprise was pled or proven, dooming Defendant’s convictions for counts 1 and 2. Moreover, no pattern of racketeering was proven where no two acts, completed with 10 years, relate to each other and also relate to a single enterprise with a common purpose.

III. Where Defendant’s Jury was Swamped with a Mass of Minimally Probative Yet Highly Prejudicial Evidence Related to Defendant’s Controversial Sex Life, Defendant Was Deprived of a Fair Trial and Fair Opportunity to Defend Himself Against the Charged Offenses.

Defendant’s trial was overwhelmed by excessive evidence related to his personal relationships outside the context of DOS….  While some small percentage of the government’s evidence regarding Defendant’s consensual sex life, as unconventional as it was, was arguably relevant to charges related to DOS and racketeering acts 2 &3 (the sexual exploitation charges), the vast majority of this evidence served no legitimate purpose and was designed solely to breed contempt and disgust for the Defendant…..

The district court abused its discretion when it allowed the government to introduce:

• thousands of chat communications between Defendant and Camila when Camila was in her mid-20s, including graphic sexual exchanges;
• evidence that Camila, Daniela, Mariana (all sisters), and other intimate partners of Defendant had abortions after becoming pregnant with his child;
• medical records and testimony about Daniela and Camila’s abortions, including ultrasound photos of the fetuses
• nearly a hundred photos of women’s genitalia that were taken during consensual sexual activities.

… the district court should have excluded the vast majority of this evidence…

Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt….

The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much crime with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge..,.

As set out below, the district court did not conscientiously balance the probative value of certain proffered government evidence that carried an extraordinary risk of prejudice.

A. Camila Communications

Over defense objection, the government admitted into evidence thousands of chat messages between Defendant and Camila that were largely irrelevant to any issue in dispute but incalculably prejudicial to the Defendant.

Via the testimony of Agent Rees, the government admitted 1500 pages of WhatsApp5 messages between Defendant and Camilla primarily
between the years 2014 and 2016 when Camila was in her mid-20s.

The government devoted an entire day – and then some – to having Agent Rees read cherry-picked messages between Camila and
Defendant that painted a disturbing picture of Defendant and Camila’s highly dysfunctional relationship.

…. the government presented hundreds of communications that revealed a secret intimate relationship between Defendant and Camila in 2014 and 2015 when she was of legal, consenting age. The government purposefully highlighted certain communications culled from thousands of pages of communications that portrayed Defendant as manipulative, controlling and emotionally abusive….

For example, some communications reflect Camila asking Defendant if she can shave her pubic region or color her hair. The communications revealed that Defendant was simultaneously in a relationship with Camila’s sister, Marianna or “Monkey,” which was a source of great pain for Camila …

The government focused on numerous communications between Camila and Defendant that portray Defendant as controlling and consumed by jealously as a result of Camila’s relationship with other men, including Robbie or “R” and Jim….

Some of the communications show Camila in a state of emotional turmoil, mentally broken, and suicidal.

In fact, the court even permitted the government to introduce evidence that Camila had attempted suicide in and around April 2015 by cutting her wrists.

The government was permitted to introduce communications between Defendant and Camila revealing that before the existence of DOS, they embraced a master-slave dynamic in their relationship and that Defendant demanded a lifetime vow of obedience from Camila.

Particularly prejudicial were conversations between Defendant and Camila about the prospect of bringing a “virgin” into their relationship as some type of “successor” because Camila had engaged in sexual relations with Robbie and had lost her “purity.”

The court also permitted the government to introduce gratuitous sexually-graphic conversations that served little purpose other than to inflame the passions of the jury….

In one exchange, Defendant asks Camila to compare his semen with Robbie’s semen in terms of “taste, consistency, quantity, and intensity” and to compare their penises – which she does.

In another exchange, Agent Rees describes a BDSM photo sent from the Defendant to Camila, stating “[t]his is an image of a BDSM act in which a woman is bound by her hands and legs as well as a hook. It appears to be a ceiling in giving – – performing oral sex to a male.”

The vast majority of the WhatsApp communications between Camila and Defendant were not relevant to any disputed issue. While certain communications were arguably relevant to support the government’s claim that Defendant began a sexual relationship with Camila when she was 15 years old and that Defendant was the architect of DOS, those communications could have been presented without a days-worth of salacious testimony about Defendant and Camila’s emotionally-destructive relationship. The government had more than enough evidence tying Defendant to DOS and could have presented Defendant’s statements suggesting the length of their relationship without overwhelming the jury with an entire day’s worth of troubling and intimate communications that served no purpose other than to arouse the passions of the jury.

B. Abortion Evidence

Over objection, the district court permitted cumulative evidence in the form of testimony and medical records about the many pregnancies and abortions of Defendant’s sex partners, including the three sisters Camilla, Daniela, Mariana. Over defense counsel’s objections the government elicited testimony from Lauren Salzman that Defendant had told her that Mariana had had “abortions”

Daniela testified that in 2006 she became pregnant with Defendant’s child and had an abortion. Daniela testified at length about her experience terminating her pregnancy and her state of mind at the time.

Daniela further testified that Defendant told her that Pam had previously terminated a pregnancy and that Mariana had undergone multiple abortions.

Daniela testified at length that her younger sister Camila had also experienced an abortion after becoming pregnant with Defendant in 2008. Again, Daniela described the experience of supporting her sister through the abortion. And finally, Agent Rees testified that she reviewed images in Camila’s email communications that reflected a positive pregnancy test and ultrasound from 2016

The government admitted those photos into evidence as GX1162 & 1164 All told, the government presented evidence to the jury that Defendant’s partners had undergone abortions no fewer than a half-dozen times.

The government was permitted to highlight the abortion evidence with the testimony of retired nurse practitioner Elizabeth Butler who testified at length about types of medical abortions and the process one experiences when getting an abortion. If that was not enough, the government was also permitted the government to introduce Daniela and Camila’s medical records detailing their abortions and including ultrasound images of their fetuses.

The cumulative abortion evidence was exceedingly prejudicial and had minimal probative value. Even if a tiny section of the records were relevant to support the government’s theory that Defendant initiated a sexual relationship with Camila when she was 15 years old, the issue of whether she underwent an abortion was probative of absolutely nothing. The government justified the admission of this evidence to show that Pam Cafritz was a co-conspirator in the enterprise and that her actions of bringing Daniela and Camila to a women’s clinic for the purpose of getting abortions was part of the “means and methods of the charged enterprise.”

But where Daniela testified unequivocally that she wanted an abortion, was not pressured into an abortion, and could not ever imagine having a child with the Defendant, the government’s contention that Pam’s role in facilitating exactly what Daniela wanted was not particularly probative of the “means an methods of the charged enterprise.” Furthermore, because Camila and Marianna did not testify, there is no evidence that Pam, at the direction of Defendant, pressured the women into abortions. Even if she had, this evidence had no connection to the activities of the enterprise – to the extent there was an enterprise.

In short, the government elicited this testimony for no other purpose than to inspire hatred for the Defendant and distract the jury from its duty to determine Defendant’s guilt on the charged offenses.

Where abortion is among the most divisive, if not the most divisive, issue in this country, and 12 of the 18 jurors (and alternates) who sat of Defendant’s jury indicated that faith was either “extremely important; I make life decisions based on faith” or “important but I consider other issues,” there can no doubt that the introduction of excessive evidence regarding abortions carried a high risk of prejudice, particularly where three of Defendant’s partners who had those abortions were sisters.

Even the district court judge could not help but voice his disapproval of the fact that Defendant had engaged in relationships with three sisters before the parties rested. , remarking at a sidebar “[] this is a choice that, apparently Mr. Raniere made to engage in this behavior with three sisters. That is a creation of your client, it is not a creation of the Government, so I am not going to have Camila’s last name, even though she is a co-conspirator, or alleged to be a co-conspirator . . . Just that’s life, you know. That was Mr. Raniere’s choice, that wasn’t the court’s choice.”

… the abortion evidence depicted Defendant as contemptible and reflected poorly on his morality, at least by conventional norms, but it was of little probative value in determining whether he committed the charged offenses.

C. Binders of Vulva Photos

Over objection, the government also admitted into evidence roughly 167 images of women’s genitalia with whom Defendant had consensual sexual relations in and around 2005.

Each juror was provided with a binder of images of the vulvas that were wholly unrelated to any of the charged offenses. The parties stipulated to the identity of each of the woman and their vulvas – none of the women alleged that the photos were taken under duress or without consent.

The government argued that the evidence was relevant to prove the child exploitation charges because the child pornography images were contained in a folder in the same area as the folders that contained images of other women and for timeframe. The government also opined that the “type” of photographs (i.e., images of women’s vulvas) were the same kind the Defendant received in DOS a decade later.

Arguably, the timeframe in which the vulva photos was taken shed some light on the question of whether Defendant was responsible for taking the Camila photos, but it was entirely unnecessary to provide the jury with binders of 167 images of nude women and their vulvas to establish a timeline. Indeed, the government had ample evidence via the testimony of Lauren Salzman and Daniela that in conjunction with the meta-data associated with the images would have accomplished the same goal. Salzman and Daniela both testified that Defendant took intimate photos of them with a camera in and around 2005.

They certainly could have identified a handful of photos of themselves for the purpose of establishing the “time line.” Similarly, the record contained more than ample evidence via testimony from Sylvie, Lauren Salzman, Daniela, and Nicole about what “types” of intimate images the Defendant preferred. The probative value of 167 images of women’s nude bodies and genitalia from 2005 during consensual sexual encounters was minimal while the prejudicial effect was extraordinary.

Cumulatively, the admission of …  thousands of troubling text messages between Defendant and Camila, excessive evidence about Defendant’s sexual partners obtaining abortions, including images of fetuses eventually aborted, and 167 photos of vulvas of numerous women was substantially outweighed by the prejudicial effect….

 

V. Defendant Was Denied his Fifth and Sixth Amendment Rights When the Trial Court Prematurely Terminated Defense Counsel’s Cross-Examination of the Government’s Key Cooperating Witness Lauren Salzman.

Lauren Salzman, a cooperating co-defendant, pled guilty to racketeering and conspiracy to commit racketeering before testifying against Defendant pursuant to a cooperation agreement with the government.

Salzman told the jury that she faced up to 20 years in prison for her role in the charged offenses and that in exchange for her truthful testimony against Defendant, the government would inform the sentencing judge that she provided truthful testimony and assisted the prosecution of Defendant but that it would not recommend a specific sentence.

During Salzman’s cross-examination, defense counsel began a line of questioning designed to show that Salzman pled guilty and was testifying against Defendants for reasons unrelated to her or Defendant’s guilt.

Q. Did you think it was extortion when you took the stuff? Were you doing it to scare them?
Ms. Hajjar: Objection
The Court: You may answer.
A. I had concerns that it was problematic and I chose to go with what Keith said. If I didn’t think it was problematic, I wouldn’t have raised it.
Q. Did you intend to hurt anyone, did you intend to scare anyone?
Ms. Hajjar: Objection
The Court: Sustained
***
Q. When you were in DOS, before anybody was arrested, were you doing things intentionally to break the law?
Ms. Hajjar: Objection

The Court: That requires a legal conclusion.

Q. What was your intention when you were in DOS?
The Court: You may answer.

A. My intention was to prove to Keith that I was not so far below the ethical standard that he holds that I was – I don’t even how far below I am. I was trying to prove my self worth, and salvage this string of hope of what I thought my relationship might some day be, and I put it above other people, helping them in their best interest. That’s what I did when I was in DOS.

The Court: Okay, that it. We are done.

After the witness was excused, defense counsel immediately addressed the court, “I don’t know why Your Honor cut off my cross-examination.

The court responded: If you want to know, you went way over the line as far as I’m concerned with regard to this witness. You could have asked your questions and moved on to the next question, but you kept coming back, and I am not going to have someone have a nervous breakdown on the witness stand in front of – – excuse me, this is not DOS. This is not the allegations. This is a broken person, as far as I can tell, And whether she’s telling the truth, whether the jury believes her. I think it’s absolutely necessary that there be a certain level of consideration for someone’s condition And that’s really what this was. You had plenty of – if you have other things to say, you could have gone on and said them. But what I had here was, I had a crisis here. And not in my courtroom. I have to sentence this defendant and what you did was, basically, ask her to make legal judgments about whether what she did in pleading guilty was farcical that she took somebody else’s advice, some lawyer, so she could get out from under a trial. I thought that really went pretty far beyond the pale, frankly.

Mr. Agnifilo: Your Honor, I –

The Court: I took her guilty plea, sir. All right?

Mr. Agnifilo: I am not trying to argue with you. I am not trying to argue with you.

The Court: Then don’t argue with me.

Mr. Agnifilo: No –

The Court: You can take your appeal if you should not be successfully. I don’t want to talk about it anymore. I thought it was extremely excruciating. When I tried to cut off the line of questioning, you just went right back to the line of questioning. You could have gone on to something else. You could have. I may not get everything right up here, but I will tell you, as a human being, it was the right decision. Alright? And before I’m a judge, I’m a human being. And that goes for everybody in this room, and it includes you and the Government. And I am not going to allow someone to be placed in this circumstance and that let it continue. I am the one who is disappointed. I’m done.

The district court’s abrupt termination of defense counsel’s cross examination of Salzman before the jury interfered with Defendant’s right to a fair trial and his right to confront the government witness, including on the subject matter of whether Salzman pled guilty because she was actually guilty.

Defense counsel promptly moved for a mistrial on account of the district court cutting off his cross-examination, identifying a number of areas of cross that Defendant was unable to confront the witness with including:

1.  the impact of her potential jail term on her decision to cooperate;
2. certain other facts she learned in discovery that caused her in hindsight to view Defendant and DOS differently that she did at
   the relevant time
3. certain specific portions of the tape recordings she heard of meetings between Defendant and other DOS members,
4. other aspects of her plea agreement and her cooperation.

…. Confrontation clause guarantees not merely the formal opportunity to cross-examine but the opportunity to engage in effective cross examination….

No sound justification exists for the district court’s premature and abrupt termination of counsel’s cross examination of the government’s key cooperating witness.

Defense counsel’s line of questioning was appropriate and proper. Indeed, the court directed the witness to answer the question posed by defense counsel over the government’s objection prior to ending the examination. The district court judge later suggested that defense counsel had done something inappropriate by asking the witness questions probing whether she truly intended harm in connection with the charges to which she pled guilty. The court appeared overly concerned that the witness might answer defense counsel’s questions in a manner that contradicted her guilty plea and suggested that defense counsel should have shared that concern.

Quite to the contrary. Defense counsel had every right, indeed an obligation, to test the veracity of Salzman’s testimony, including through bias and motive. The district court did not enjoy the discretion to curtail cross-examination so as to prevent the jury from hearing facts bearing on the witness’s credibility…

The district court impermissibly intervened in the fact-finding process during a central line of cross-examination. The prejudice suffered by the Defendant was exacerbated where the jury was left with the false impression that defense counsel had done something so improper as to justify the draconian punishment of forfeiting his cross examination along with a tongue-lashing by the court. In reality, defense counsel was doing his job, cross-examining a cooperating witness in an attempt to discredit her.

VI. Defendant Was Denied his Constitutional Guarantees under the Fifth and Sixth Amendments Where the Trial Court Required the Parties and Witnesses to Refer to Individuals Designated by the Government as “Victims” Only by Their First Names or Pseudonyms, Signaling to the Jury that the Defendant Should Be Presumed Guilty.

Prior to trial, the government moved in limine for an order, requiring defense counsel and all witnesses to refer to individuals it deemed “victims” by their first name. Defendant and any individual the government considered a co-conspirator, charged or uncharged, would be referenced by first and last name.

Over defense objection, the court granted the motion without addressing Defendant’s objections….

the trial court’s ruling ran afoul of the presumption of innocence. The jury was conditioned  from the start of trial that certain individuals were victims and certain individuals were co-conspirators, based entirely on the government’s say so before the government even proved a conspiracy.

The trial court bolstered these assumptions, even forced the Defense to essentially concede the government’s theory of the case. By allowing the government to identify victims and co-conspirators before proving its case, the district court implicitly told the jury that it should assume a crime occurred, and because identity was not issue in this case, this message resulted in a directive to assume the Defendant’s guilt.

This practice resulted in a violation of Defendant’s Fifth and Sixth Amendment guarantees and demands a new trial.

CONCLUSION

For the foregoing reasons, count 1-3 & 5-7 and 2-3 must be reversed and a new trial ordered as to the remaining counts. Even if this Court affirms counts 1 and 2, it must vacate the jury’s verdict as to the child exploitation acts, sex trafficking and forced labor of Nicole, conspiracy to alter records, and conspiracy to commit identity theft of Pam Cafritz and remand for resentencing.