UPDATE: We just received a copy of the full transcript of yesterday’s Status Conference – which includes Judge Garaufis’ initial thoughts on the issues raised by Kathy Russell’s attorneys. Although he agrees that the prosecution may have, in fact, mislead Kathy at the outset of her grand jury testimony as to whether she was a “target” of its investigation, he has also indicated that he does not believe such conduct entitles her to a dismissal of the charges pending against her (It might mean that her grand jury testimony would have to be excluded from the trial – which the prosecution has already agreed to do).
Judges usually don’t share their opinions before they issue rulings on pending motions unless they’re trying to send a message. The message to Kathy and her attorneys was pretty clear: I will not be dismissing the charge you are currently facing in this case.
Based on what Judge Garaufis had to say yesterday, Kathy should be working even harder to get a plea deal done. Now, it’s just a matter of what the prosecution will require from her in terms of the charge – or charges – she will have to plead to.
With all the hullaballoo yesterday regarding the announcement of Allison Mack’s plea deal and the start of the jury selection process, little notice was given to the other proceedings that were taking place in the U.S. courthouse in Brooklyn.
One of those other proceedings was an oral argument by Kathy Russell’s attorneys, Justine A. Harris and Amanda Ravitch, as to why all the charges against her should be dismissed.
This argument followed several previous filings by those same lawyers: i.e., a motion to dismiss and memorandum-of-law that were filed back in January; a renewal of that motion that was filed on March 22nd after the issuance of the second superseding indictment; and a follow-up letter that was submitted on April 3rd after they received additional discovery materials from the prosecution.
From the outset, Justine and Amanda have argued that the prosecution made two major mistakes in the way that it treated Kathy:
(1) They told her she was merely a “witness” rather than a “subject” or a “target” of the NXIVM/ESP investigation; and
(2) They failed to attach an “Advice of Rights” form to her subpoena (Per DOJ policy, that form needs to be attached to subpoenas that are served on “subjects” and “targets”).
Just to remind everyone of the difference in those three terms as they apply to federal criminal cases:
• A “target” is a person for whom the prosecutor already has evidence that links them to the commission of a crime.
• A “witness” is a person who the prosecutor believes has information that might be relevant to help prove the guilt of other individuals.
• A “subject” is a person whose conduct is within the scope of a grand jury’s investigation (A “subject” lies somewhere between a target and a witness).
At the time that she was subpoenaed to appear before the EDNY grand jury, Kathy was being represented by William Fanciullo, a criminal defense attorney from Albany, NY.
For reasons that are known only to him, Fanciullo declined several invitations to talk to – or meet with – Moira Kim Penza and Tonya Hajjar before Kathy’s grand jury appearance to discuss the possibility of a deal whereby Kathy would have been granted immunity in exchange for her cooperation and testimony.
Even on the day on her appearance before the grand jury, Fanciullo again declined to have any discussions with Moira and Tonya – and instead, sent Kathy into the grand jury room armed only with a scrap of paper.
That scrap of paper had the words printed out that Kathy would have to utter in order to invoke her Fifth Amendment right against self-incrimination.
But because Fanciullo was not allowed inside the grand jury room, Kathy was left to decide on her own when to invoke her Fifth Amendment right and when not to do so.
The results were devastating for the would-be ballerina as she invoked her Fifth Amendment rights 75 times during the course of her testimony.
In addition, she also declined a proffer that would have protected her from being prosecuted on the basis of her own testimony before the grand jury (It is not known if Kathy even understood what a proffer is).
In effect, Kathy talked herself into an indictment.
Fanciullo was replaced as Kathy’s attorney shortly after she was indicted.
In their most recent filing, Kathy’s attorneys cited several interviews that FBI agents conducted with witnesses who directly linked Kathy to the commission of crimes. All those interviews took place before Kathy’s grand jury appearance on May 10, 2018.
In addition, they also cited all the other evidence that the government had regarding Kathy’s alleged illegal activities before her grand jury appearance. This included materials that were seized by the government from Nancy Salzman’s former residence shortly after Keith Raniere was arrested.
Finally, Kathy’s attorneys have asked the prosecution to produce a list of all the new evidence was discovered after Kathy’s grand jury appearance that resulted in her being indicted. No such list has been produced as of yet.
Kathy is only charged with Count One: Racketeering Conspiracy in the second superseding indictment.
She is also not named in any of the predicate acts that support the Racketeering count even though she was originally listed in two of the predicate acts set forth in the first superseding indictment (No explanation was ever given for dropping her from those two predicate acts).
Given those facts – and given the circumstances surrounding her appearance before the grand jury – it’s beginning to look like Kathy may be able to walk away from this mess relatively unscathed.
Perhaps a plea to Racketeering Conspiracy – and an agreement to fully testify against Clare Bronfman and Keith Raniere, both in this trial and in any subsequent trials – will garner Kathy a relatively light sentence.
Maybe as little as – or even less than – the expected sentence for Nancy Salzman.
If, as expected, Kathy does end up with a plea deal, that will just leave Keith Raniere and Clare Bronfman as defendants in the case.
The question will then become which of them will be first to turn their back on the other in order to cut a couple of years off their own sentence.
Will Clare stay loyal to Keith?
Will Keith stay loyal to himself?
Is Keith brave enough to go to trial?
Viva Executive Success!