In a recent article in the Insider, Clare Bronfman’s attorney, Duncan Levin, argued on behalf of his client that she deserves to have her six year, 9 month sentence reduced because she got punished for DOS, something she never participated.
Bronfman has appealed her sentence, and a recent filing by another of Bronfman’s attorneys, Daniel Koffman, argues that her sentence should not be longer than Allison Mack [three years] and Lauren Salzman [probation] who pled to more serious crimes and were integral members of DOS. Her lawyers argue even though she had nothing to do with DOS, she was punished heavily for its existence – and that the judge, while acknowledging she knew nothing about DOS until after it was publicly exposed, gave her extra years in prison for “willful blindness.”
Willful blindness imposes culpability on someone who lacked actual knowledge of a fact – in this case the existence of DOS – but only if the person suspects the fact, realized its high probability, but refrained from obtaining the final confirmation because they wanted to be able to deny knowledge.
“Clare Bronfman never knowingly funded a sex cult,” Levin told Insider. “And that is what the judge himself said at sentencing.” Bronfman is “categorically against sex trafficking of any kind,” he added.
Mack pleaded guilty to racketeering charges in April 2019 and was sentenced last year to three years in prison, less than half of Bronfman’s sentence.
Lauren Salzman, a member of the executive board of NXIVM and one of the first line Masters of DOS, recruited the most slaves into DOS – but tearfully testified at the trial of Raniere, weeping so hard that the tender-hearted Judge Nicholas G. Garaufis halted her cross-examination (The halting of her cross-examination is an issue in Raniere’s appeal). Lauren’s sentence was 5 years of probationbut no jail time.
She now grooms dogs.
Based on those crimes and her lack of criminal history, the applicable sentencing guidelines for Clare were 21-27 months. She agreed to pay a fine of $500,000, restitution of $96,605.25 and a forfeiture money judgment of $6,000,000.
The pre-sentence investigation report and the government’s sentencing memorandum suggested that Bronfman supported DOS and helped find sexual partners for Raniere. The government sought a 60-month sentence, more than twice the sentencing guidelines.
Bronfman sought a hearing to demonstrate there was no basis to find she had a culpable mental state regarding DOS. The judge declined to hold such a hearing.
Prior to sentencing, Bronfman submitted a sentencing memorandum seeking probation, stating she had no connection to DOS but included a letter where she told the judge she did not disavow Keith Raniere.
Her sentencing hearing was held on September 30, 2020, in the US District Court for the Eastern District of New York, before Judge Garaufis.
Eight former members of DOS, who had no connection to Bronfman’s crimes of conviction, spoke at her sentencing about their experiences in DOS. One of the speakers, Jane Doe 12, was brought to the US through Bronfman’s efforts and later joined DOS.
Her lawyers appealed to the judge for probation or home confinement. Bronfman spoke briefly asking for leniency.
Before handing down a sentence, Judge Garaufis stated that DOS was “relevant context for analysis of the appropriate sentence for Ms. Bronfman” and this “places her in an [altogether] different category from other defendants convicted of the same offenses.”
This was the clue that he was going to sentence her above sentencing guidelines of 21-27 months.
The judge said that Jane Doe 12, “the kind of pressure and mistreatment that [Jane Doe 12] was subjected to by Ms. Bronfman,” made Jane Doe 12 “susceptible to be recruited into an organization like DOS.”
He said of Bronfman, “While she might not have known about DOS before receiving the [the request to return] collateral emails in September 2017, I find it clear that in her own words, she did not want to know either.… She maintains that she was an innocent bystander to Raniere’s abhorrent conduct, completely blind to Raniere’s crimes and the sex trafficking that occurred within the Nxivm community…. I find that any such blindness was willful and cultivated, and Ms. Bronfman’s sentence can and should serve to deter other people who find themselves in situations in which they can chose to either confront or avert their gaze from the harm brought by their actions and the actions of those to whom they are close.”
The judge said, “Ms. Bronfman seems to have a pattern of willful blindness when it comes to Raniere and his activities…. [DOS] would not be the first time that Ms. Bronfman exuded the sense that she wanted to participate in Raniere’s world while remain unaware of uglier aspects.”
He sentenced her to 81 months’ imprisonment, triple the sentencing guidelines.
She was not permitted to report to prison voluntarily, as her codefendants Allison Mack and Nancy Salzman would do after they were sentenced. Instead, she left the courtroom in handcuffs and was assigned to the harsh maximum security Philadelphia Detention Center.
Bronfman appealed her sentence to the US Court of Appeals for the Second Circuit, arguing the sentence was unprecedented for her offenses and criminal history, claiming that of all 27 defendants who were sentenced in recent years for the same crimes – and who were in the same criminal history category [no prior convictions] – “not a single one” was sentenced to an above guidelines term of imprisonment.
When the judge found Bronfman was willfully blind to DOS, he was invoking the concept by which a person is found culpable of conduct of which they lack actual knowledge, which was an error. [see more below].
The government asserted that the judge punished her for Bronfman’s continued support of Raniere “after she [gained] actual knowledge of DOS” in 2017. The government stated that “the court used the phrase ‘willful blindness’ to describe Bronfman’s behavior—not her legal culpability” and that “the extraordinary and unique facts underlying and surrounding [Bronfman’s] offenses” made it impracticable to compare her sentence to others convicted of the same offenses.
On January 26, 2022, one of Bronfman’s lawyers, Daniel R. Koffmann, filed a supplemental brief on her sentencing appeal to the Second Circuit.
Koffman wrote in part:
“[T]he government engages in revisionist history, attacks strawman arguments, and fails to offer any logical defense of the defective sentencing proceeding that resulted in her extraordinary 81-month sentence.
The Court should reject the government’s arguments and its years-long effort to tie Clare Bronfman to allegations of sex slavery, blackmail, and worse. Ms. Bronfman, like thousands of others around the world, was an active member of NXIVM and a zealous proponent of its teachings.
But NXIVM is not DOS. Ms. Bronfman never participated in DOS, knew nothing about it, and cannot in any legitimate way be said to be culpable for it. Yet she faces years in prison because the district court saw fit to impose a sentence three times the Guidelines range based on incoherent reasoning and clearly erroneous findings that linked her to DOS.
This Court should not tolerate such procedural error. The government’s primary argument is that the district court did not punish Ms. Bronfman based on a finding that she was willfully blind to DOS. That blinks reality….
There can be no legitimate dispute that the district court found that Ms. Bronfman was willfully blind to DOS, nor that this finding affected the court’s determination of her sentence. Nor can there be any dispute that the court’s willful-blindness finding was clearly erroneous….
The district court’s reliance on the concept of willful blindness was part of its justification for punishing Ms. Bronfman for DOS notwithstanding that she knew nothing about it and had nothing to do with it.…
Had the district court not believed that Ms. Bronfman bore culpability for DOS, none of this would have been relevant or appropriate to discuss at her sentencing.….
A clear factual error affecting a sentence requires vacatur… This Court can read the transcript for itself and see the importance that DOS played in the district court’s decision to imprison Clare Bronfman for three times longer than the upper end of the Guidelines range….
Finally, the government fails to address the key disconnect between the extraordinary harshness of the sentence it imposed on Ms. Bronfman and the sentences imposed on similarly situated defendants around the country….
Yet when the district court faced those same “extraordinary and unique facts” in sentencing Ms. Bronfman’s codefendants, [Mack and Lauren Salzman) it imposed sentences that were extraordinarily lenient by comparison.
In doing so, the district court undermined any suggestion that Ms. Bronfman’s case was such an outlier that it warranted such an extraordinary disparity from similarly situated defendants. In any event, the district court’s premise was wrong….
The individual and cumulative impact of the procedural errors underlying Ms. Bronfman’s sentence is too prejudicial to let the sentence stand. The Court should vacate and remand for resentencing.
ARGUMENT I. THE DISTRICT COURT COMMITTED REVERSIBLE ERROR BOTH IN FINDING THAT CLARE BRONFMAN WAS WILLFULLY BLIND TO DOS AND IN PUNISHING HER ON THAT BASIS.
The District Court Clearly Erred When It Found Ms. Bronfman Was Willfully Blind To DOS.
… there can be no legitimate dispute that the district court punished Ms. Bronfman based on its belief that she was willfully blind to DOS. It said so on the record. The court explained that, although “there is no evidence that she directly participated” in DOS….
DOS was front and center at Ms. Bronfman’s sentencing. The hurdle the district court had to overcome in order to punish Ms. Bronfman for what happened in DOS was that, as the district court conceded, Ms. Bronfman played no role in DOS, knew nothing about it, and made no conscious effort to provide financial support for it. There would be no justification to punish Ms. Bronfman based on DOS unless there were some basis to find her culpable for it….
So the district court bridged the gap with its willful-blindness finding….
The record is clear on its face that the district court was purporting to describe Bronfman’s state of mind before she gained actual knowledge of DOS….
The court stated, for example, that it found it “particularly credible” that Ms. Bronfman was willfully blind to DOS because, in the court’s view, “it would not be the first time that [she] exuded the sense that she wanted to participate in Raniere’s world while remain[ing] unaware of its uglier aspects.”
It then found explicitly that her “blindness” to “Raniere’s abhorrent conduct … and the sex trafficking that occurred within the Nxivm community … was willful and cultivated”—that “while she might not have known about DOS … she did not want to know either.”… And it ensured that her punishment would be significant enough to “deter other people who find themselves in situations in which they can choose to either confront or avert their gaze from the harm brought by their actions and the actions of those to whom they are close.” …
As discussed above, the district court returned multiple times to Ms. Bronfman’s ostensible willful blindness and explained the impact it had on the determination of her sentence….
In her principal brief, Ms. Bronfman identified additional evidence that the district court committed clear factual error—and thus reversible procedural error— in basing her sentence on its finding that she had a “willful and cultivated” “blindness” to “sex trafficking that occurred within the Nxivm community.”
Specifically, Ms. Bronfman pointed to (1) the incoherence between the district court’s Guidelines analysis and its willful-blindness finding, and (2) the court’s eleventh-hour, sua sponte invocation of that rationale, which deprived Ms. Bronfman of a fair opportunity to rebut it….
Ms. Bronfman’s argument was that the inconsistency between the district court’s willful-blindness finding and its Guidelines analysis demonstrated that the court’s willful-blindness finding was clearly erroneous….
When the district court stated that a Guidelines sentence would not be sufficient because Ms. Bronfman “did not want to know” about DOS and her “blindness” to it was “willful and cultivated,” it was the first time anyone had raised that concept. Ms. Bronfman had no notice of or adequate opportunity to address it. That is improper….
(“[T]he Due Process Clause  require[s] that a defendant … have an opportunity to respond to material allegations that he disputes, in order that the court not sentence him in reliance on misinformation.”).
Particularly in light of the magnitude of the variance of Ms. Bronfman’s 81-month sentence from both the Guidelines range (21 to 27 months) and the sentence the government recommended (60 months), this procedure was unreasonable….
The district court’s refusal to hold a hearing because it did not sentence Ms. Bronfman based on a finding that she had actual knowledge of DOS, and subsequent imposition of an extraordinary upward variance based on a finding that she had an alternative culpable mental state, was procedurally unreasonable…..
The district court explicitly found that Ms. Bronfman was willfully blind to DOS…. There is no dispute that this finding was clearly erroneous…. And this finding plainly affected the district court’s decision to vary 200% upward from the Guidelines and impose an 81-month prison sentence on Clare Bronfman….
As to Jane Doe 12’s subsequent recruitment into DOS, the government makes no argument this was a foreseeable consequence of the “emotional and financial pressure” Ms. Bronfman allegedly inflicted on her….
And even if there had been a “culture of stifling and threatening dissenters” within NXIVM (there wasn’t), the government identifies no factual basis to infer a causal relationship between that culture and the “darkest and most horrific crimes that Raniere and others committed.”
Yet the transcript is clear that the district court drew an explicit link between Ms. Bronfman’s conduct and harms associated with DOS, and it is equally clear that it enhanced her sentence based on that purported association…
As discussed further below at this Court cannot condone a sentence three times the Guidelines range based on fortuitous, unforeseeable conduct for which a defendant bears no culpability. Nor can Ms. Bronfman’s identity theft-related conduct support her extraordinary sentence….
The government’s response regarding the unwarranted disparity between Ms. Bronfman’s excessively harsh sentence and those imposed on similarly situated defendants misapprehends Ms. Bronfman’s argument. At sentencing, the district court dismissed this Section 3553(a) factor on the purported basis that “the context of Ms. Bronfman’s criminal conduct places her in [an altogether] different category from other defendants convicted of the same offenses.” (SPA129.) But when faced with that very same “context” in sentencing Ms. Bronfman’s codefendants— including Allison Mack and Lauren Salzman, whose racketeering crimes put them elbow-deep in DOS—the court faced no similar obstacle to showing extraordinary lenience….
There are, of course, many immigration cases involving allegations of sex trafficking…. And the Sentencing Guidelines contemplate immigration offenses in which victims are subjected to criminal sexual abuse…. The Guidelines are the “primary vehicle for reducing nationwide sentence disparities.” United States v. Wills…
Nor does the government dispute that Ms. Bronfman’s sentence is an extreme outlier compared to every relevant benchmark….
The government also takes umbrage at Ms. Bronfman’s comparison of her sentence to her codefendants’, arguing vociferously that sentencing courts need not consider sentencing disparities among codefendants… But when a sentencing court “opts to compare the relative culpability of co-defendants” during sentencing, its reasoning must be consistently and logically applied…. The court may not “selectively rely” on mitigating or aggravating factors in sentencing one defendant while ignoring them in sentencing a codefendant….
The government does not dispute that the district court opted to compare the relative culpability of Ms. Bronfman and her codefendants. Nor could it…. (“Ms. Bronfman’s allegiance to Raniere shines through time and again.”) with (“In contrast to other individuals who have remained deferential to Mr. Raniere, even as the artifice of his virtues crumbled, you [Allison Mack] have begun the hard work of unravelling the lies and grappling with your culpability and the consequences of your behavior.”).) Nor can the government explain why the district court’s justification for imposing a far more punitive sentence on Ms. Bronfman than on her far more culpable codefendants stands up to scrutiny.
The district court’s explanations were neither consistent nor logical. For example, the government offers no reason why the district court’s belief that Mr. Raniere coerces, manipulates, and victimizes women who are close to him is a mitigating factor for Allison Mack, Lauren Salzman, and Kathy Russell… but not Clare Bronfman. Nor does the government dispute that Ms. Mack’s and Ms. Salzman’s racketeering crimes eclipse anything Ms. Bronfman did. And it has no adequate response to the fact that Ms. Russell, whose conduct parallels Ms. Bronfman’s, and who also did not cooperate, nevertheless received a non-Guidelines, nonincarceratory sentence. There is no dispute that there is a massive disparity between Ms. Bronfman’s 81-month prison sentence and both the sentences imposed on other defendants convicted of the same crimes, and the sentences imposed on other defendants in this case.
The district court offered no logical reason why such a disparity was warranted. Nor does the government. This violates Section 3553(a)(6) [“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”] and is an independent procedural error requiring vacatur of Ms. Bronfman’s sentence and remand for resentencing….
And this was hardly the only procedural error the district court committed in sentencing Ms. Bronfman. The court based Ms. Bronfman’s sentence on a clearly erroneous finding that her “blindness” to “Raniere’s abhorrent conduct … and the sex trafficking that occurred within the Nxivm community” was “willful and cultivated.”
It denied Ms. Bronfman a fair opportunity to rebut that finding. And it offered other ill-conceived and unsupported justifications for the sentence. Each of these errors, as well as the alarming unwarranted sentencing disparity, violates Ms. Bronfman’s rights and constitutes reversible procedural error. Taken together, they leave no doubt that Ms. Bronfman is entitled to resentencing.”