Lawyers for Keith Raniere filed a letter in court today accusing the Department of Justice of deliberately holding back important discovery materials for defendants as a ruse to delay the trial. They seek to get the judge to keep the previously set trial date of January 7, 2019.
Raniere’s defense team suggests the DOJ’s delay in providing discovery is a ruse to delay the trial.
In a letter dated September 11, 2018 to the Honorable Nicholas G. Garaufis, United States District Judge, Eastern District of New York, Raniere’s lead attorney, Marc Agnifilo, details an array of allegations that accuse the prosecution team of being deliberately remiss in fulfilling obligations to provide discovery to defendants.
The government has an obligation to provide the defense with evidence it has collected in order for the defense to prepare for trial.
Among the delay tactics the defense accuses the government of doing is failing to identify the Jane and John Does in the superseding indictment – something the defense is entitled to know under due process – which provides that defendants have a right to know who is accusing them and of what crimes in order to prepare their defense.
While the Jane and John Does must be disclosed to the defendants, a protective order signed by the defendants will keep their names sealed from the public.
In another curious development, the defense has indicated to the judge that they believe it will take up to a month to seat a jury and that as many as 700 potential jurors may need to be called in order to find 12 unbiased jurors.
The next status conference will be held Thursday, September 13, to address these and other issues.
Read the entire letter to Judge Garaufis: https://frankreport.com/wp-content/uploads/2018/09/2018-09-11-no-127-Agnifilo-To-Garaufis-discovery.pdf
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The following are excerpts from the Raniere Defense Team letter with my explanatory comments following in bold
Raniere’s attorneys write that as to discovery:
To date, very little substantive discovery has been produced … and since Mr. Raniere and Ms. Mack’s arrest, the government has refused to (a) state what discovery exists, or (b) provide a timetable for when it intends to produce the remaining discovery….
On August 3, 2018, the government produced to defendants Raniere, Mack, Bronfman, Nancy Salzman and Lauren Salzman eight discs containing 39 gigabytes of data….,
Just last night at 11:07 p.m. on September 10, 2018, the government sent a discovery letter stating that seven categories of documents, emails, and/or videos would be available for the defendants to obtain….
FR: The defense now chides the prosecution about the discovery materials they have produced to the defendants:
At the July 25, 2018 status conference, the government stated it has “approximately 60 electronic devices and/or accounts.”… The prosecutors represented that they “have produced substantial portions of that, but [] have a lot more to go.”…
In their August 3rd discovery letter, the government stated they are in possession of two email accounts, two iCloud accounts, a cell phone, a Dropbox account, and electronic devices obtained through the execution of two search warrants….
At Ms. Bronfman’s hearing on August 21, 2018, the government stated that they “now have an estimate that is approximately 12 terabytes worth of data.”…
It does not appear that the majority of these 12 terabytes have been produced. Nor has the government identified the nature of the discovery material constituting these terabytes….
[T]he warrants obtained in this investigation anticipate a two-step process … first, the government obtains the entirety of the hard drive or email account … then the government must undertake a search to identify items that fall within the scope of the warrant’s terms…. [T]he search warrant that the government has produced only authorizes the seizure of items that “constitute evidence, fruits and instrumentalities of the Subject Offenses,” not the seizure of entire accounts and devices….
FR: This is an interesting point. Usually in order for the government to get a search warrant of someone’s email, computer etc., they have to tell the judge, in advance, what kind of evidence – pointing to what kind of crimes – they are searching for. It is not usually a blanket search warrant to go on a fishing expedition collecting every bit of data in a person’s life etc. but must be apropos of suspected crimes. Consequently, after the search, the government must identify – in discovery – what items seized are relevant to which of the charged crimes. Discovery requires more than just turning over everything seized – but to identify which seized items relate to specific crimes that have been charged. And this must be done on a timely basis so that the defense can make motions and prepare for trial.
Therefore, the fact that the government has only just turned over information is simply unreasonable.
Indeed, it appears that despite seizing a majority of the devices and accounts in March 2018 or even earlier, the government has either not yet searched many of these accounts and devices for items responsive to the warrant, or seeks to avoid producing to the defense the results of any searches performed. In the government’s August 3rd letter, it stated that absent an objection from
defendants, it would produce “full discovery copies” of electronic devices to all defendants….
FR: The defense did object to just getting copies of everything seized and demands that the prosecution detail the items that will be used in evidence against the defendants – and, as such, are responsive to the search warrants. In addition, each defendant does not want the government to share with other defendants personal items that are not relevant to the crimes charged.
Each defendant responded, through counsel, that he or she does not waive his Fourth Amendment rights and does not consent to the government seizing from his or her electronic devices or email accounts and producing to other parties personal and private materials as to which the government did not have a valid warrant authorizing seizure. In other words, material on electronic devices or in email accounts that is not responsive to the warrant may not be seized by the government, and
may not be shared with other parties.
In sum, each defendant declined to waive his or her Fourth Amendment right to privacy and insisted that the government follow the law and execute the search warrants and seize from the electronic devices and email accounts only the items which a Court authorized the government to seize…..
FR: The defense, omce again, alleges the prosecution is using delay tactics.
On July 26, 2018, this Court ordered the parties to meet and confer regarding discovery…. Ms. Bronfman’s counsel proposed a date…. The government responded that the first step is to produce discovery and if a meet and confer is necessary, “we’ll be available.” …. Ms. Mack … reached out for a date to meet and confer regarding discovery … Again, the government responded that “it will be more productive and practical to meet and confer … after some productions of discovery have gone out….”
After the first discovery production, Ms. Bronfman’s counsel sent the government a letter laying out the issues that defense counsel would like to discuss with the government…. Ms. Bronfman asked the following questions:
• Please identify the 60 devices and/or accounts that will be produced and where they were seized or obtained from.
• When do you anticipate completing your review for responsive materials for each of the 60 devices and/or accounts?
• What other materials of significant volume outside of the 60 devices/accounts do you anticipate producing and what is the anticipated timetable for production? ….
Ms. Bronfman and the other defense counsel have not received a response to this letter.
Instead, on August 28, 2018, the government sent a discovery letter to all counsel that thirteen devices seized from 3 Oregon Trail were being made available to all defendants….. Two days later, on August 30, 2018, the government wrote … that “due to an objection by counsel for another defendant, discovery copies of the materials identified in the government’s August 28, 2018 letter …. are being held from production to all defendants” … blaming the delay in producing this discovery on the defendant’s objection….
[It] appears the government has not complied with its legal obligations … even though many of the materials were seized more than five months ago and the government has an obligation to execute search warrants of electronic storage devices promptly. As a result of this failure, the government has sought to force the defendants to waive their Fourth Amendment rights and, failing that, has simply not produced discovery to the defendants.
… on September 3, 2018, Ms. Bronfman’s counsel again wrote to the government, noting the government’s failure to produce discovery and requesting once again that the government provide information about what … the government will be producing and when…. the defense requested answers to the following questions:
• Is any discovery ready to be produced? If so, what does it consist of and what is the size of the production? When will it be produced?
• For which seized materials (from any warrants executed in the course of the investigation) has the government not completed the review process to identify items responsive to search warrants? What is the timetable for finishing that review process? What is the anticipated volume of that data?
• For which seized materials (from any warrants executed in the course of the investigation) is the government undertaking a privilege review process? How long do you anticipate that process will take? What is the anticipated volume of that data?
FR: The privilege review process is related to items seized that might be confidential based on attorney-client privilege. For instance, from the emails seized from Raniere’s account – emails to his attorney may not be used as evidence in court because they are privileged. Here, the defense is asking if the government has undertaken a review for privileged items.
The government did not respond to either of Ms. Bronfman’s letters… Thus, five months after the arrest of Keith Raniere and Allison Mack, and more than six weeks after the arrest of the other defendants, the government still has not begun to produce the bulk of the discovery in this case.
FR: The next issue the defense is taking up in this letter is the “Trial Date”. They want it set in stone.
Next, we write to reiterate that Mr. Raniere has not waived and does not waive his right to a speedy trial and requests that this Court keep the January 7, 2019 trial date…. Mr. Raniere was forcibly seized in Mexico at the behest of United States authorities in the absence of an international, or provisional, arrest warrant on March 26, 2018. …. Since the inception of this case, the government has maintained that Mr. Raniere must be remanded pending a trial and, yet, has employed every basis available to avoid a trial.
FR: The crux of the argument is that the government opposed Raniere getting bail and, at the same time, is denying Raniere a speedy trial by delay tactics.
[O]n May 4, 2018, Mr. Raniere requested a trial date of mid July 2018…. Because Ms. Allison Mack had been arrested in advance of the arraignment date, the Court set a trial date of October 1, 2018. So as to avoid the October 1, 2018 trial date, the government superseded the Indictment on July 24, 2018, adding four defendants.
FR: Here, the defense takes a leap from fact toward rank speculation and claims that the government only brought the superseding indictment to delay the trial. It offers zero evidence to support that claim.
Defendant Raniere continued to press the Court for the October 1, 2018 trial date….. However, in light of the additional defendants, the Court set a January 7, 2019 trial date….
We anticipate the possibility that the government will continue to deny Mr. Raniere a speedy trial while continuing to demand his pretrial incarceration. Therefore, Mr. Raniere requests that the Court keep the January 7, 2019 trial date, and that the government be directed to meet its discovery obligations immediately.
FR: That’s the gist of it – pushing for the January 7th trial date and for the prosecution to turn over discovery immediately.
At Ms. Bronfman’s bail hearing on August 21, 2018, the government stated that “[w]e may be seeking to have the case designated as a complex case officially, given how much data that there is in this case.”…
FR: This is a clue to the direction the prosecution may take. Under federal procedures, the prosecution [or the defense] can seek to exclude time under the Speedy Trial Act by presenting evidence or arguments for a “complex case finding”. If a criminal case is unusually complex due to the nature of the prosecution, the charges, the regulations that apply, the nationwide presence of witnesses and evidence, and a voluminous amount of discovery, judges have “in the interest of justice,” excluded time under the Speedy Trial Act. If the prosecution moves for an official “complex case” finding and the judge agrees, the trial may be postponed another six months or so even without a superseding indictment.
The Raniere defense argues that the case is not complex just because the prosecution delayed in meeting their discovery obligations. This is debatable given the huge amount of discovery seized. However, since the government istechnically supposed to be ready to go to trial at the time of indictment, just because there is a large body of evidence is not necessarily a reason to delay trial – since this evidence should have already been “digested” by the prosecution by the time of the indictment. Yet, as I have previously written, this case may have been moved far ahead of normal indictment schedule because Raniere was in hiding and might have been getting ready to disappear – and because many of the crimes he was charged with were still mongoing.
In this respect, it was a Catch 22 for the prosecution. They had to nab Raniere before he disappeared, which started the speedy trial clock – and yet, they probably needed another six months or a year to fully investigate the huge array of crimes the Bronfman-Raniere organization committed.
One of the ways used to delay is to stagger superseding indictments as the investigation continues. This is what the government has done thus far. Each superseding indictment resets the speedy trial clock.
Another way is to get some extra time based on “complex case” exclusion. My guess is that the defense will successfully fend off [at least in part] the complex case finding and the government will speed up its discovery process.
[T]he fact that the government has not met their discovery obligations does not make this case complex. It should be noted that the search warrant on 3 Oregon Trail was executed on March 27, 2018 – one day after Mr. Raniere’s arrest. The government should have provided this material a long time ago. The fact that the government has failed to promptly fulfill its discovery obligations does not transform an eminently manageable case into a complex one.
Moreover, the government cannot now use its neglect as a basis to delay the trial date and keep Mr. Raniere in jail. Mr. Raniere
asserts his complete innocence and he desires a trial immediately. Failing that, he asks only that the January 7, 2019 trial date be kept.
FR: Next, the defense brings up the difficulty in finding unbiased jurors. With all the bad press Raniere – the alleged brander and blackmailer of women – has gotten, the defense acknowledges it may need a large jury pool to winnow it down to 12 unbiased jurors. The defense actually says it might take three weeks to a month to seat a jury.
… Given the notoriety and length of this trial, we believe that the use of juror questionnaires is appropriate. We also believe that the Court may want to summon between 500 and 700 jurors. Therefore, we humbly propose that on January 7th, the Court orders the jurors and ask them to fill out juror questionnaires that will be agreed-upon ahead of time. We expect that all counsel will need time to go through the completed questionnaires and agree upon strikes for cause. Once that process is completed, the Court can bring the non-struck jurors to court for the continuation of jury selection and preemptory challenges. This would cause opening statements to be toward the end of January or early February 2019.
FR: Next, the defense wants to know the identity of the Jane and John Does who are referenced in the superseding indictment.
[T]he defense has repeatedly asked the government to disclose to all defense counsel the identities of the Jane and John Does named in Counts One through Seven of the Superseding Indictment. On August 14, 2018, counsel… [asked] for this information…. It is now four weeks … and the government has still not provided this information.
As the government is obviously aware of these identities, this is a task that should take a few minutes to complete. Yet, the government still has not responded, leaving all counsel to conclude that this refusal to provide the names is another way that the
government is seeking to delay the trial date and frustrating the defendants’ efforts to prepare for this trial.
FR: Obviously, the prosecution has to give names to the defense at some point – and just as obviously, the prosecution has those names. It is not clear why they have not been provided.
On July 18, 2018, prior to the superseding indictment adding defendants Bronfman, Russell, Nancy Salzman and Lauren Salzman, defendants Raniere and Mack provided the government with a specific Brady request in the form of a letter.
FR: A Brady request is based on rights established in a United States Supreme Court case Brady v. Maryland, 373 U.S. 83 (1963). In that case, the Supreme Court held the prosecution must turn over any evidence favorable to the defendant. This is referred to as Brady Material.
We believe that the government has been told by a number of people the government considers “DOS slaves” during proffer sessions with the AUSAs and the FBI agents assigned that no sex trafficking or other illegal conduct took place. These witnesses provided information which contradicts the factual allegations and theory of the prosecution.
FR: This is interesting. The defense is alleging that DOJ attorneys and the FBI interviewed a number of branded women – alleged DOS slaves – and that these DOS women said there was no coercion.
Defense counsel believes, moreover, that when confronted with these accounts of alleged “DOS slaves” that no illegal conduct took place that the government attempted to “convince” these witnesses to the contrary.
FR: The defense is arguing that prosecutors may have tried to coerce or persuade DOS women to say they were victims when they were not. While I don’t think this is true in this case, I do know that this is a widespread practice in the DOJ and FBI – this bending, coercing, encouraging potential witnesses to testify according to the desires of the prosecution – sometimes offering them better deals or no prosecution at all if they lie, or embellish – as desired. This is so well known that it is not even necessary to debate it. However, I don’t think this was necessary in the Raniere case. Just the opposite: Women were abused and terrified. They gave collateral. Some say they were brainwashed. It is entirely probable that some of the DOS women are so confused [800 calorie diets, collateral, sleep deprivation, painful branding, fear of the Bronfman litigation machine, etc. can make one very confused] so much so that some DOS women may not even understand the extent of the abuse they underwent. I submit that some of the DOS crime victims still do not understand their victimization. If the prosecution pointed out some of this to them, they did well to do so.
The defense is concerned with the propriety of this investigation in light of this information. The defense is moreover concerned that the government has ignored for close to two months a specific Brady letter on July 18, 2018.
Simply put, if the government has been told by someone it believes to be a “DOS slave” that nothing inappropriate happened, contradicts information alleged by any of its witnesses or that any defendant did not act with the requisite mental state required for the commission of the crime, that is the very definition of Brady material, and it must be disclosed immediately. Therefore, in
light of the fact that the government has ignored our July 18, 2018 letter, we ask the Court to direct the government to provide an answer to our specific Brady request.
FR: Raniere’s defense team wants any info on any DOS women who told the government they were happily branded and glad to give collateral and that they were not coerced in any way despite the vicious collateral assiduously collected and if they so happened to wind up being a “fuck toy” for Raniere – it was not done illegally but with gladness.
Whether there are such women and if there is such evidence, the defense is demanding that it be turned over at once – as Brady material. Finally, the Raniere team offers its “Conclusion”
In sum, the government has taken an aggressive position – we believe unreasonably so – in this case. It has caused the forcible seizure of a U.S. citizen [Raniere] in another country in the absence of an arrest warrant justifying that action and it has sought highly restrictive conditions for several peaceable citizens [NXIVM leaders Allison Mack, Nancy Salzman, Lauren Salzman, Clare Bronfman and {hapless fall girl} Kathy Russell] who lack any criminal record and have no history of violence. This is
exacerbated by the fact that the government is objectively deficient in timely providing discovery, providing Brady discolosures and basic particulars, such as the identities of the John and Jane Does. Rather than moving this case forward toward a trial in a legal and responsible fashion, the government seems far more intent on finding ways to avoid a trial.
We ask that the Court keep the January 7, 2019 trial date and that it order the government to do the things it is required to do in order to make that trial fair and in conformity with the law and the established procedures.
FR: I think this letter – good as it is – may not accomplish the intent desired. While it may prompt the judge to order the prosecution to speed up discovery, hand over Brady material, identify the Does etc., it may also speed up something else – the prosecution may expedite the next superseding indictment.
If this occurs, it may seem then that this letter is a tactical error on the part of the defense. It is not really.
The superseding indictments are inevitable. Raniere is sunk and they know it. But this is a long game strategy – a 15 round boxing match – where jabs can get points and knockouts are more likely to be landed by the prosecution.
The strategy is to keep the heat on the prosecution. Hold them to account whenever possible, try to wear them down a little – with jabs such as this letter – and maybe somehow accidentally land a harder blow.
The prosecution is the champion here – they have the evidence and getting more all the time. The advantages are theirs since Raniere is guilty as hell.
Delaying or speeding things up isn’t going to change the outcome: Raniere is going away for years, probably for life.
Meantime, the defense lawyers – before and after his conviction will still go home to dinner – that dinner being paid in part no doubt by the handsome Bronfman-Raneire fees in this case.
So jab away.