Did Judge Garaufis Change the Legal Definition of ‘Commercial Sex’ By His Jury Instruction in US v. Raniere?

Judge Garuafis
Judge Nicholas G. Garaufis

The sex trafficking of Nicole was Count #6 in the conviction of Keith Alan Raniere. Sex trafficking was charged against Raniere and Allison Mack pursuant to 18 U.S.C. §1591.

The charges arose from an incident on May 31, 2016, when Nicole, blindfolded and tied to a table, was accosted by a woman, later identified as Camila, a first-line DOS master, who performed oral sex on her as Raniere watched.

Mack was the alleged commercial beneficiary of the sex trafficking. She arranged the rendezvous with Nicole and Raniere.

Section 1591 normally involves sexual exploitation for commercial or financial value.  In this case, no money changed hands. According to the prosecution’s theory, the commercial benefit was Mack’s elevated status with Raniere.

In his pending appeal, Raniere’s attorneys have argued, in effect, that Judge Nicholas G. Garaufis committed a “prejudicial error of law” when he gave the jury a wrongful instruction on commercial sex, over the defendant’s objection, which allowed the jury to find commercial sex without finding that something was given of commercial or financial value in exchange for the sex act.

Raniere’s defense wanted the judge to use the standard or federal “pattern instruction” for commercial sex, as published in Modern Federal Jury Instructions, by Leonard Sand. According to an online publication of the US governement, “Pattern jury instructions are formulated by committees of judges and practicing lawyers and approved by the circuit for use in criminal cases.”

The pattern instruction for commercial sex, as published in Modern Jury Instructions, by Sand, states, “A ‘commercial sex act’ is any sex act on account of which anything of value is given to or received by any person.”

The US Attorney for the Eastern District of New York wanted a non-pattern jury instruction that read, “A commercial sex act is any sex act of which anything of value is given to or received by any person because of such sex act…  A thing ‘of value’ need not involve a monetary exchange and need not have any financial component.”

The changes from the pattern instruction were twofold.

The definition of commercial sex act changed from “on account of’ to “because of’.

Added to the pattern instruction was “need not involve a monetary exchange and need not have any financial component.”

The defense wanted the judge to instruct the jury as follows:

“A ‘commercial sex act’ is any sex act ON ACCOUNT OF which anything of value is given to or received by any person.”

The prosecution wanted the judge to say:

“A ‘commercial sex act’ is any sex act of which anything of value is given to or received by any person BECAUSE OF such sex act….  A THING ‘OF VALUE’ NEED NOT INVOLVE A MONETARY EXCHANGE AND NEED NOT HAVE ANY FINANCIAL COMPONENT.”

The judge agreed with the prosecution and gave the non-pattern instruction to the jury:

The Law

The Trafficking Victims Protection Act (“TVPA”) addresses sexual exploitation for profit as an economic activity.  In enacting §1591, Congress recognized that human trafficking, particularly of women and children in the sex industry, “is a modern  form of slavery, and it is the largest manifestation of slavery today.”

The sex trafficking legislation was intended to address sexual exploitation for profit, not merely the mistreatment of women and children.

The law itself uses the language “on account of: “Commercial sex act” is defined in the law [section 1591(e)(3)] as “any sex act on account of which anything of value is given to or received by any person.”

Keith  Raniere probably never realized, when he had Nicole tied up and blindfolded, that this single sex act would be later charged as sex trafficking.

Raniere’s attorneys argued that by giving a limitless definition of “value” without cause and effect, or a causal relationship, between the thing of value received for the sex act and the sex act, the court misled the jury in a prejudicial way.

Sex trafficking changed from a sex act for money or some definite commercial profit to a law where if anyone, anywhere, gets anything of value, it is sex trafficking.

The prosecution argued that because the sex act in question involved first-line masters (Mack and Camila), made Raniere happy, and advanced Mack’s status, it was, therefore, a commercial sex act.

The prosecution argued that an email exchange between Mack and Raniere written before the sex trafficking of Nicole, about another “slave” of Mack’s, India Oxenberg, established the cause and effect for Nicole’s sex trafficking act.

Allison Mack [l] and India Oxenberg [r]
Raniere’s defense argued that the sex trafficking law was intended to regulate an economic class of activities. Commercial sex acts are economic in nature. Nicole’s sexual incident was not an economic activity.

Nicole Story

Mack recruited Nicole into DOS in early 2016. Nicole’s collateral included an untruthful letter claiming that her father sexually abused her, a damaging letter about an ex-boyfriend, a sexually explicit video, and numerous nude photos.

Mack told Nicole about DOS, explaining membership involved a lifetime vow of obedience and that women would get branded. Mack did not disclose that Raniere was the leader of DOS.  Nicole was a member for 14 months.

Mack ordered Nicole to initiate contact with Raniere. On May 31, 2016, Nicole went to see him at Mack’s command.  He brought Nicole to a house, blindfolded her, then brought her by car to another house, restrained her on a table, and spoke to her, as another unknown person [Nicole later learned it was Camila] performed oral sex on her.

Raniere did not use physical force to coerce Nicole into this sex act. Nicole testified that she complied because she feared the release of her collateral. Afterwards, Nicole had a sexual relationship with Raniere for about a year.  Mack did not know about her relationship because Raniere said it would make Mack jealous, Nicole testified.

The government argued that the May 31 incident was commercial because Mack received certain privileges such as “maintaining a spot in the first line” by soliciting women into DOS.

The First Line Masters of DOS with their master in the middle.

The defense argued that “maintaining a spot in the first line of DOS cannot qualify as a ‘thing of value’ in the context of commercial sex services….  it does not follow that Mack received ‘anything of value’…  on account of Nicole’s sexual encounter…  on May 31, 2016. 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.,,, Any benefits Mack received as part of DOS were not directly or indirectly related to the May 31, 2016 episode.”

The government offered evidence that Nicole engaged in the May 31 sex act as a result of coercion or force, including a fear that her collateral would be released if she refused to submit.

The defense, on appeal, argued that she was not coerced since “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.’”

The defense further argued that Nicole complained about many things, but did not complain about the May 31 sexual incident.

Nicole’s emails with Mack, which were made available in the case, do not suggest Nicole felt coerced into sexual acts or convey concern about the release of her collateral if she declined sexual activity with Raniere.

The defense argued that a nearly 30-year-old woman would not have remained silent about an incident where 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 [when]… she regularly complained to Mack about…  less consequential matters. Nicole’s subsequent lengthy and private [intimate] relationship with [Raniere] belies the government’s claim that she feared ‘serious harm.'”

Nicole was branded with the mark of Keith Raniere. She was not told Raniere was the leader of DOS or that the brand would contain his initials. The photo above is not her actual picture but was used by Frank Report in its initial coverage of her testimony,

While Nicole testified at trial that she feared the release of her collateral if she left DOS, she did not testify that she feared the release of her collateral if she did not engage in sexual activity with Raniere.

The defense argued that the judge’s jury instruction “diluted the causal relationship between act and value and that the jury was left with “colloquial definitions of ‘because of’ rather than the legal standard of a causal relationship.”

Raniere’s appellate attorney, Joseph Tully, tried to show the difference between “on account of,” which is the language in the law, and “because of.”

Joseph Tully

Tully wrote, “while it is not incorrect to say, ‘because of the rain, the man wore a hat,’ the rain cannot…  did not have a quid pro quo relationship with the man putting on the hat.”

“On account of,”  underscores a quid pro quo relationship. ”Because of,” means only a “connection to,”

Tully wrote “Under the instruction the court gave, if a husband has sexual relations with his wife and, as a result of being contented and happy because of the experience, treats his work staff to lunch the next day, then the act between husband and wife the night prior is a ‘commercial sexual act’ because the employer’s staff received the value of lunch ‘because of’ the sex act the employer had with his wife…

“if the husband goes to work the next day and… merely gives his secretary a compliment, his HR director a ‘high five,’ or gave a nice, reassuring smile to his administrator, indicating some level of favor, the sex act from the night before with his wife would still be a ‘commercial sexual act’ because of the obviated quid pro quo between the sex act and anything received by anyone…”

“It is not the vagueness of the concept of value that is disputed here, it is the vagueness of the required causal relationship.”

By making the instruction on ‘value’ ignore any requirement for a quid pro quo or to require any connection to the value someone received to the sex act, the judge’s “instruction amounted to a mandate to the jury to convict on this count.”

In short, the defense’s argument is that the judge’s non-pattern jury instruction allowed the jury to find commercial sex without finding that something was given of commercial or pecuniary value in exchange for the sex act.

During the government’s summation, the prosecution used the non-pattern instruction to craft a narrative of what could be considered commercial sex. Knowing in advance that the judge was going to use their version of the definition of commercial sex, over the pattern jury instruction approved by the judiciary, the prosecution was able to argue that sex in exchange for a hope of social advancement was commercial sex because social advancement has value.

Raniere is seeking the verdicts concerning sex trafficking be reversed.

If it is not reversed, is this case a precedent that can be used in the future to expand the prosecution of sex activities as sex trafficking, by eliminating the need for sex trafficking to be economic in nature and that it only need be less definite, even vague benefits enjoyed by anyone?

For instance, Mack supposedly received a benefit by making Raniere happy. But could it be argued that Mack herself was a victim of Raniere, having produced collateral herself and that her actual benefit was that her own collateral was not released. In other words, she acted out of coercion precisely the same as Nicole.

It might be extortion, it might be assault, but absent a financial benefit, is it really sex trafficking?

This is the question and the US Court of Appeals for the Second Circuit will get to decide.

Stay tuned.

 

 

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Frank Parlato

31 Comments

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  • I’ve often wondered what Raniere’s end game was with all the sex. Was he planning to have hundreds and hundreds of female operatives running around and seducing international diplomats and elites in order to gain blackmail on an international scale? Did he hope to try to rule the world?

    I’m sure he had some purpose besides endless predictable sex and I’d be deeply grateful to Frank, or any of the DOS ladies that could reveal his real intentions.

  • Well, yeah, it’s obvious that the government was hiding something. But that doesn’t make Raniere or Mack innocent. Fionna Barnett talked about how Nxivm was a front cover for a child trafficking operation that belonged to the CIA. Mack and Raniere’s original charges were child trafficking. Both had pedo connections and a history of human exploitation. Nxivm was Luciferian, so they pray to Lucifer and there’s a history of sexual rituals and pedophilia in that religion or at least in the testimony of people that accused prime minister Edward Heath, Jimmy Saville, Micheal Nihoul and Hillary Clinton. So when the original charges appeared, Bronfman pleaded guilty and everything changed. It’s funny how Nicole was the only one example of trafficking the FBI could find, especially after Lauren’s testimony about Clare Bronfman and Allison fighting over who was going to be the owner of India owner, or those 11 LeBaron girls, Rosa Laura’s daughter, or Raniere tendency to rape and believe that he was making a “ritual”. Nxivm had many connections to slavery, pedophilia, Satanism and mind control. Even to Epstein, Pizza Gate and Franklin. But the government should fill the holes that Nxivm case has because from the beginning, the cult was protected and the real crimes or disturbing things (Snyder death, Rosa Laura’s daughter for example) were never investigated

  • Does this case raise the specter of any sex act becoming criminalized because anyone anywhere “benefits”? No it does not.

    Vast amounts of evidence produced at Raniere’s trial made it abundantly clear that he had a well oiled organization recruiting and blackmailing women into his bed. The twelve citizens of the jury understood this and convicted him unanimously.

    The incident with Nicole was but one specific example. Taken in isolation, it can look a little weak. But there was plenty more evidence presented at trial. Evidence of a pattern, a system in place, of sex slavery and subjugation, of recruitment and yes, of payments.

    Cash exchanges are not necessary in law to establish a commercial act. Frank’s post gives the legal definition of commercial sex: ‘“Commercial sex act” is defined in the law [section 1591(e)(3)] as “any sex act on account of which anything of value is given to or received by any person.”’

    Anything of value is given or received by any person.

    Was anything of value given to Mack on account of (or because of, they are synonymous) Mack providing Raniere young nubile bedmates? Let’s look at the email exchange between Mack and Raniere on March 3, 2016 less than three months before the Nicole incident.

    From: Allison Mack
    To: Keith Raniere

    “Hey you. I’m so sorry to bug you but I have not been paid as a head trainer for The Source since last year and I’m struggling a little with income. Clare says she cannot approve the payments until you review them… I know you are slammed, so if there is any way I can help make this simpler please let me know…

    I love you Master

    XO, A.

    Raniere responds that same day to this groveling email:

    From: Keith Raniere
    To: Allison Mack

    Does India know that to complete her assignment she needs to take off all her clothes while I am clothed pose in the most revealing way and have me take a picture with her phone to be immediately sent to you as proof?

    This terse email is proof of a clear quid pro quo. Mack doesn’t get paid until she gets India, her slave, over to Raniere and have her pose naked for compromising photos.

    Absolute positive proof of commercial sex act.

    Three months later, Mack sent Nicole to Raniere for a bondage and oral sex session. Is there any doubt that Mack understood the financial rewards and penalties hanging on this arrangement? Let me spell it out: she got paid if she provided girls to Raniere for prostitution services. If she didn’t provide him girls for prostitution services, she didn’t get paid.

    Commercial sex.

    Raniere was running a sex trafficking operation. The jury understood that simple fact. I understand it, it’s crystal clear and amply proved by evidence presented at trial. Proved by Raniere’s own words in his own email.

    No attempt at obfuscation, no quibbling over “because of” versus “on account of” can change that.

    Raniere’s own words. In his own email.

    • Totally agree. When I read these emails for the first time they where published, I immediately understood Mack was ordered by Raniere to prepare India for sex with him otherwise Mack would not get any money/salary. Also, Mack’s e-mail shows how dependant she has become financially from Raniere. Her 8 million dollars from her acting career are gone by now. No money left and she’s begging Raniere to get paid. It also shows Raniere is in total control. What an evil motherfucker…….

      • That’s an either or situation. Either it was “on account of” or it was “because of” and Raniere’s lawyer will get you if you don’t choose the correct one! But yeah, I agree too.

  • I would love to see a retrial. It’s Ike Raniere will forever be getting his ass handed to him. I’m still wondering why Raniere never took the stand? Not that it matters much now.

  • Blah Blah Blah
    Maybe if the jury was full of lawyer Tully might have a case
    Because it was full of people who couldn’t tell the the difference between the two different sentences like most people reading this crap
    Tully is grasping at straws for the stinking guy
    Hopefully, Tully will make a shit load of money off this and milk Raniere’s legal aid fund with less cash for such lame ass moves as this
    Even if he was to win #6 what does that mean for Mr. Creeps? A 100 year sentence?
    He is still coming out in a pine box

  • General rule of thumb for Frank Report commenters: the more often they use the term “cult,” the more likely they are to be Allen T. Stanfield.

  • Frank
    My name is Peter- Wanted you to know- that Kim has a document that YOU have never seen or have. She knows you are angry with her, but it is vital that you contact her in some form to get this document.
    Kim and her mom found this document today, in sending info to another agency, in Kris’ case.
    Kim would like to have you see this document – she says it will change your thinking about a particular issue, and person.
    Please contact her and get her to send you the document. It is vital to Kris’ case.

    Peter

  • I think sex trafficking totally makes sense in this case and I wish people would stop trying to downplay it just because it doesn’t seem as strictly commercial as what society has generally understood sex trafficking to be.

    If a “master” tells his “slave” to order “their slave” to perform a “seduction assignment” how is this anything but an organized effort where both of the so-called masters enjoy a kind of benefit from the sexual exploitation of the lowest level slave?

    It’s a good thing that legal definitions are always expanding to include new developments in society and I don’t believe the prosecution was wrong in applying this definition to these acts.

    It absolutely should be considered sex trafficking if some gross dude thinks he can blackmail women into blackmailing other women into sex acts.

    Maybe if everyone had just been honest with each other, Nicole could have made an informed choice and been spared the trauma of a sexual assault. It’s also incredibly wrong to minimize what happened to Nicole just because it was a woman attacker and oral sex.

    These DOS women are always complaining that females are held to a different standard than men. I generally disagree with them and see this as an excellent case in point (alison was charged for her involvement) except for the fact that Camilla was not charged with sexual assault.

    In defense of Camilla, however, I believe it’s important to remember that keith controlled her life and the lives of her family members since she was a teen. Obviously the prosecution was well aware of this and Camilla was not held responsible for her role in the assault. However? That’s also their prerogative. They can present the facts and request judgment in whatever way they believe makes the most sense. The defense could have argued that Camilla was the one who performed the assault, not keith. Except that the prosecution didn’t lay a charge of sexual assault. They more appropriately laid a charge of sex trafficking and I think it deserves to stay.

  • On account of reading this post, I am writing to say that it is just repeating what’s already been written before.

    Because of this, I think you need to work on some fresh investigations, Frank.

    • Hey Ginzo,

      Why aren’t you posting up my my other comments on the other posts and responses to trolls?!

      If you’re deliberately withholding my posts and not posting them, I’m going to have to take serious measures!

  • Another clear, masterful and unbiased dissection of a complex legal issue.

    By the way, I watched a great movie called “7 Prisoners” (on Netflix right now) which clearly shows what human trafficking and sex trafficking are like in reality. No story I have heard from anyone in NXIVM or DOS comes close to what is portrayed in this movie.

    https://www.netflix.com/title/81173970

    And yes, I realize that it’s a movie, and thus fiction.

    But I also believe many aspects of the government’s case – as presented at trial – was fiction too. Not all aspects, but many.

    Sometimes you need a template to recognize what’s entailed in the terms “sex trafficking” or “human trafficking”. Watch this movie and you’ll see exactly what I’m talking about.

    Alanzo

  • Correction to last comment, last para: Meant “Necker Island” but think the commenter said “Fiji” and meant Necker, too. In any case, please, I am very curious about the allegation that the invitees were paid and why? For what, if so? Were they supposed to be “influencers” — always wondered who took all the pics there and passed them onto JT? (JT published the photos, if we’re talking about the same Island soiree’, full of Oceanographers a la’ Ghislaine Maxwell). Speak up, snitch. Who got paid, what amount, for what services? Thanks.

    • John Tighe’s report about Necker Island said one of the items on the agenda was “sex”? He didn’t explain who, what or why (maybe for legal reasons) but he’s too good a journalist to not mean what he writes.

      • In re: “to Heidi” …Don’t recall if JT said that when he published the pics on his blog. May be something I surmised on my own when I saw the photos or have heard elsewhere. Never heard there was payment involved before now. (Doubt it more since the commenter has not responded.)

  • “Sex trafficking changed from a sex act for money or some definite commercial profit to a law where if anyone, anywhere, gets anything of value, it is sex trafficking.”

    This all strikes me as a straw man argument from the time it was raised at trial and, further, that’s an untrue conclusion you’re making of it in this sentence above. Judge G’s wording – “because of” vs. “on account of” – did not, has not altered the existing law.

    While I’m certainly far from a legal expert, it seemed to me the sticking point on the commercial sex charge had more to do with the timing of Nicole being transported for sex purposes than this ‘value exchange’ argument.

    But it’s fun to watch more Bronfman bucks being flushed away.

    Little OT but someone mentioned on another post that the Branson-hosted, Fiji Island fiesta attendees were PAID? Is that true? What’s the source? If so, would that little, sexy soiree’ amount to some kind of International trafficking?

  • This is what South Park called “The Wookie defense.” It does not hold water.

    It was Raniere himself who established that personal relationships were to be “collateralized” and backed by assets, and that he was the top of the pyramid.

    It was Raniere who insisted that his so-called “slaves” (13th Amendment notwithstanding) title assets in his (or subordinates’) name, to be held against them for purposes of keeping them loyal.

    It was Raniere who made sex with him the definition of loyalty.

  • This article quotes the defense lawyers but not any experts in sex trafficking and the law. I learned nothing. What trash reporting.

About Frank Parlato

Frank Parlato Investigates

Frank Parlato is an investigative journalist.

His work has been cited in hundreds of news outlets, like The New York Times, The Daily Mail, VICE News, CBS News, Fox News, New York Post, New York Daily News, Oxygen, Rolling Stone, People Magazine, The Sun, The Times of London, CBS Inside Edition, among many others in all five continents.

His work to expose and take down NXIVM is featured in books like “Captive” by Catherine Oxenberg; “Scarred” by Sarah Edmonson; “The Program” by Toni Natalie, and “NXIVM. La Secta Que Sedujo al Poder en México” by Juan Alberto Vasquez.

Parlato has been featured prominently on HBO’s docuseries “The Vow” and acted as lead investigator and coordinating producer for Investigation Discovery’s “The Lost Women of NXIVM.” He was credited in the Starz docuseries, 'Seduced,' for saving 'slave' women from being branded and escaping the sex-slave cult known as DOS.

Parlato has appeared on the Nancy Grace Show, Beyond the Headlines with Gretchen Carlson, Dr. Oz, American Greed, Dateline NBC and NBC Nightly News with Lester Holt, where Parlato conducted the first-ever interview with Keith Raniere after his arrest, which was ironic since many credit Parlato as being one of the primary architects of his arrest and the cratering of the cult he founded.

IMDb — Frank Parlato

If the whole world stands against you sword in hand, would you still dare to do what you think is right?

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