Attorney Justine Harris [l] and her client, Kathy Russell, outside the Brooklyn courthouse, April 8, 2019.
News NXIVM

What’s To Become Of Kathy Russell?

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!

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Artvoice

News and art, national and local. Began as alternative weekly in 1990 in Buffalo, NY. Publishing content online since 1996.

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  • Krclaviger, if possible to answer this question, what could be possible reasons for Fanciullo refusing to speak to the DOJ? Could his conduct give rise to appeal or something that would work on Kathy’s favour should she be found guilty?

  • To quote from another story earlier today, this is a much better example: Russell’s former attorney was either dumb or devious.

    This also points out why lawyers delay pleading guilty, as there is a chance the government will screw up. The judge should soon determine the answer to that issue.

    Russell should get a lesser sentence than Nancy Salzman regardless. She was the ballerina, not the brains behind NXIVM. And if she cooperates and Salzman doesn’t, the sentence would be even lower.

    • They could offer Kathy a misdemeanor charge, in exchange for a plea. That way, it ties up the loose end of getting the entire crew convicted. And it would save Kathy years off her sentence, to make it extremely worthwhile to plea instead of risk a guilty charge.

  • Sounds like attorney malpractice to me!

    Even if she gets off the charges entirely, she will have racked up a fortune in possibly unnecessary legal fees.

  • “Both Park and Kreuk have cut ties with the group and downplayed their involvement, stating they were never involved in any of the recruitment efforts, however, former members of the group have stated that the roles of the two actresses were significant. They’ve both avoided any charges.”

    https://lrmonline.com/news/smallville-actress-allison-mack-pleads-guilty-in-sex-cult-case/

    Kristin Crook has not admitted to being a coach or recruiter, nor the one responsible for recruiting Allison Mack in the first place. Virtue signalling requires no sacrifice. Admitting what you did in NXIVM does. Coward.

    Knowing about crimes and unethical behavior while continuing to support the cult makes you guilty. Same with Jihadi brides who don’t actively participate in bombings. You are an enabler.

  • Thanks for all that analysis.

    What’s your estimation of the chances of Russell getting the charges dismissed? It seems to me that even if the feds might have made an error of process, the fact that she was well-represented and advised to so liberally use the 5th Amendment means that she in no way suffered any harm of self-incrimination.

    My guess is that it’s a hail Mary, and once it’s turned down, then Russell will plead.

    And I still think that Raniere and Bronfman have their own reasons to want to fight on rather than plead; he because he wants to try to outsmart the feds or else go down as martyr for his ideas, and she because she thinks she can spend enough money to out-lawyer the feds and eventually force an outcome more favorable to her.

    • Given the judge’s commentary at yesterday’s Status Conference (See the “Update” to the original post), I think there is zero chance of him throwing out the charge. And he announced he’ll be making a decision on that issue by the end of this week – which really puts the pressure on Kathy to get a deal done.

  • Seriously Frank, what are the odds that Mr. Raniere uses his “mad skills” as a thinker to get himself and his co defendants off on all charges?

    It seems to me, from what I’ve read, that Mr. Raniere expended great effort to avoid being tied to certain of Nxivms enterprises. Even if they present an incriminating text from the Vanguard, they can’t conclusively prove it was him texting. He could say he lost his phone.

    And if the women do testify, isn’t there a possibility they won’t be believed? After all, Nxivm was their livelihood, they were in it partly for the money.

    I’ll be watching your site with great interest. I hope you give a daily briefing of the trial – a step by step, blow by blow description of events to it’s completion.

  • Russell is probably waiting for the answer from the judge regarding throwing her case out. If it doesn’t go her way, she will probably flip like the rest of the fishes.

  • Would Keith plea to get a better deal and throw Clare under the bus?

    Could Keith’s testimony be used to go after more targets?

    Wouldn’t that be interesting.

    Is Keith really brave enough to go to trial on his own? Has Keith ever been Brave or Selfless in the last 30 years???

    • I think the prosecution will likely want to work out a deal with Clare before they have any serious discussions with Keith. And although we obviously haven’t seen the cooperation agreements that have been entered into by Lauren and Allison, they most likely contain “total cooperation” language – which means that they will be testifying in the current case plus any subsequent cases. That’s pretty standard in this sort of situation where it’s likely that other cases will be brought.

  • Typically when a person is going to plead the 5th, the attorney will discuss with the person what is involved, why better not to testify, what they must say, etc.

    Prior to appearance before the Grand Jury, the Defense Attorney will then tell the US Attorney’s Office, “My client will invoke her Fifth Amendment right against self-incrimination”. That stops the entire event. The AUSA will not take the person in, if the AUSA already KNOWS that the client intends to take the Fifth. That would be a huge waste of time. Thus, with the info provided beforehand to AUSAs, that prevents the entire proceeding.

    Also, the Defendant cannot selectively plead the fifth. Once the grand jury proceeding starts, and the person starts to answer questions, she cannot just plead the Fifth as to certain questions. It’s too late. If Kathy wanted to clear her name (or stay safe), she should have signed the immunity deal beforehand. But immunity does not shield her from obstruction or lying to the Grand Jury.

    Sounds like her first attorney really F#cked up. That is basic. I would not let my client go into a Grand Jury proceeding, if I already know they are going to invoke the Fifth.

    KR, your thoughts???

    • While it’s technically permissible for a defendant to selectively invoke their Fifth Amendment privilege, doing so can often pinpoint exactly what illegal things they actually did. Invoking it 75 times but not 100% of the time is a really good way to get indicted.

      I would never send a client into a grand jury proceeding if I knew they were going to selectively invoke the privilege. And I would never refuse to talk to the prosecution before a client was to appear before a grand jury.

  • I hope and pray that Keith’s narcissism has him fight this thing all the way to life in prison. Please Keith! Don’t give up!!

  • Krclaviger,
    Great reporting and amateur analysis!!!!

    A proffer is not a guaranteed right.

    Why would an Appellate court ever rule in her favor because she was given “public defender level advice”?

    Come on Krclaviger get on the stick.

    Did Krclaviger go to an accredited Law School?

    **********************

    Kathy Russell is the most innocuous and least a culpable of the defendants. She deserves the shortest sentence even if she abandoned her teenage son.

    • A proffer is, in fact, a guaranteed right – just not a very extensive one. Had Kathy entered into a properly drafted proffer agreement, whatever documents she turned over – and whatever other evidence she provided – could not be used to prosecute her. It could, however, have been used by the prosecution to seek other evidence of her involvement in crimes.

      The real problem is that any discussion about a proffer should have occurred before Kathy went into the grand jury room. Once she was in there, I doubt she really understood what was being proposed (She could have – and should have – asked for time to discuss the matter with her attorney).

      Once a defendant enters into a plea deal, it’s almost impossible for them to get out of it. One of the few accepted bases for an appeal is “ineffective counsel”).

  • Who the fuck cares what happens to Kathy Russell. She’ll be long forgotten, just like Scott, when the trials are over. LOL!

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