US Attorney Unfolds Conspiracy Without Substantive Crime
In April 2023, the US Attorney for the Eastern District of NY filed an indictment charging two San Francisco women, Nicole Daedone and Rachel Cherwitz, with a single count of forced labor conspiracy. Both women were associated with OneTaste Inc., a sexual wellness company.
US District Judge Diane Gujarati has scheduled the trial to begin in the Brooklyn federal courthouse on January 13, 2025.
To be clear, Daedone and Cherwitz are not on trial for forced labor. The only charge in their one-count indictment is conspiracy to commit forced labor.
Nicole Daedone
Rachel Cherwitz
Conspiracy to commit forced labor is not the same as forced labor. The legal words that distinguish the charges are “Substantive” and “Non-Substantive.” Forced labor is a substantive crime, because it causes harm.
Forced labor conspiracy is the planning of the substantive crime, the conspiracy to commit the crime. Conspiracy is considered a non-substantive crime. You cannot be a victim of a non substantive crime.
Conspiracy vs. Crime: Planning is Not Doing
The distinction between substantive and non substantive lies in harm. Forced labor causes harm. Forced labor conspiracy by itself is not harmful.
Conspiracy occurs when you agree with someone to commit a substantive crime, and then take some action. For example, you buy gloves so you don’t leave fingerprints or stake out the bank you are planning to rob. No one is hurt until you rob the bank. Robbing the bank is the substantive action.
If you think about a crime, talk to someone, plan it, even buy rope to tie someone down on the railroad track until they agree to labor – that’s conspiracy – a non substantive crime. If you never actually tied them down, you didn’t harm them.
But once you grabbed the damsel and tied her to the tracks, you have committed a substantive crime.
No Forced Labor? Charge the Conspiracy Anyway
The US Attorney in Brooklyn charged Daedone and Cherwitz with conspiracy to commit forced labor.
The US Attorney alleges these two conspired, planned, and agreed to force people to labor. The indictment reads that Daedone and Cherwitz conspired for 12 years, from 2006 to May 2018, to force students and employees to labor.
The FBI investigation started around August 2018 – three months after the women allegedly stopped conspiring.
Their case is not like the bank robber on his way to the bank with a gun and mask, who the feds arrest outside the bank. According to the indictment, these two women conspired for a dozen years, then gave up.
The FBI, led by that intrepid and special agent, Elliot McGinnis, started investigating after the alleged conspiracy had ended.
The following is not a real photo of FBI Special Agent Elliot McGinnis, but rather an artist’s conception.
Despite a five year investigation, he could not find forced labor. We know this because the feds did not charge Daedone and Cherwitz with forced labor but only conspiracy to commit forced labor.
Certainly, if you’re a prosecutor and have evidence of forced labor, you charge it. You would never charge only the non substantive conspiracy crime if you had evidence of the substantive forced labor crime.
Indicting Imagination
Forced labor conspiracy without forced labor likely cannot be proven. Nobody ever has proven anyone can only conspire to commit forced labor and not a substantive crime.
A search of LexisNexis shows the US Justice Department charged forced labor conspiracy about two dozen times. In nearly every case, as one would expect, the defendants were charged with forced labor conspiracy because they were charged with forced labor. Forced labor was proof of the conspiracy, and vice versa. However, there are two cases – both in EDNY, where the feds charged forced labor conspiracy without forced labor.
Raniere Set a Precedent
Keith Alan Raniere
The first was USA v Raniere. The US Attorney for the EDNY charged Keith Raniere, co-founder of NXIVM in 2018. Prosecutors convicted him in 2019 following a six-week trial on forced labor conspiracy and racketeering, racketeering conspiracy, sex trafficking, attempted sex trafficking, sex trafficking conspiracy and wire fraud conspiracy.
Raniere was the first forced labor conspiracy without forced labor. It set a precedent. The feds can charge one without the other. But the feds did charge him with the substantive crimes of sex trafficking and racketeering.
The only other case of forced labor conspiracy without forced labor is Daedone and Cherwitz. Unlike Raniere, unlike every other case of forced labor conspiracy, there is no substantive crime. Their indictment has only one charge – the non substantive charge of forced labor conspiracy.
The Indictment Is Clearly Shady
From the indictment:
FORCED LABOR CONSPIRACY
In or about and between 2006 and May 2018, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendants NICOLE DAEDONE and RACHEL CHERWITZ, together with others, did knowingly and intentionally conspire to: (a) provide and obtain the labor and services of one or more persons by means of, and by a combination of means of: (i) force, threats of force, physical restraint and threats of physical restraint to a person; (ii) serious harm and threats of serious harm to a person; (iii) the abuse and threatened abuse of law and legal process; and (iv) one or more schemes, plans, and patterns intended to cause a person to believe that, if he or she did not perform such labor and services, a person would suffer serious harm and physical restraint,
Between 2006 and 2018? They allegedly conspired for 12 years to use force, threats, physical restraint, and scary things to force people into believing they would experience serious harm if they did not do labor.
And the US Attorney did not charge forced labor?
They allegedly schemed, planned, but forced no one to labor.
Beyond Silly
It is a stupid idea to charge forced labor conspiracy without forced labor and take it to court. Why?
Because juries don’t live on carbon dioxide.
Because you don’t want to get laughed out of court. Because forced labor conspiracy without forced labor is like a diaper that leaks. There is nothing to absorb the things that come out of your mouth.
It’s like a moon made of blue cheese. Or a birthday cake nobody eats, and it’s not your birthday anyway. But if it was, nobody would come, except if it was also your funeral.
Forced labor conspiracy is like using a carrot for a stick. Or listing your occupation as ass clown. Or you’re broke and pretend you’re rich, showing off your new suit, and you’re in your birthday suit.
It’s like you spent five years trying to make someone you didn’t like look bad and made yourself look bad.
Forced labor conspiracy without forced labor is delusional. It’s the attractive man with the mustache who eyes you up and down every morning on the bus, who is actually a cannibal. And offers you donuts.
Forced labor conspiracy without forced labor is like when your toupee blows off in the wind. Everyone knew you wore one, but now they see why. It’s like the person who passed gas loudly then began to rub her shoe on the floor as if that sound was making the odor.
The forced labor conspiracy case of the prosecution is delusion and bluff. Your business is 85 percent bluff, but this is 100 percent bluff, and your underwear is showing.
Early next year, the US Attorney will embark on a fruitless journey, a foray into a murky, fetid, legal quagmire. There is no map to this madness. It is a plan so ingenious – a standalone forced labor conspiracy – that it appears stupid for precisely all the right reasons. Such as it is stupid.
It boils down to one fact: There is no forced labor charge. That’s what you tell the jury. No substantive crime. No harm done. Without forced labor, there can be no victims. That’s all the jury needs to know. A 12-year conspiracy with the object of forcing people to labor and no charge of forced labor. No one, not one single person was forced to labor.
