On May 3, the US Court of Appeals for the Second Circuit heard the oral arguments of Keith Raniere and Clare Bronfman, convicted in the “NXIVM” case. In this post, Frank Report presents the complete oral arguments for and against Raniere.
Attorney Joseph Tully appeared by Zoom on behalf of Raniere, and AUSA Tanya Hajjar appeared for the US Department of Justice.
Hajjar was part of the DOJ’s team of prosecutors. Tully is the latest of attorneys for Raniere and did not participate as trial counsel.
Raniere is appealing his conviction.
The oral arguments were scheduled for 2:00 pm (EDT), but the proceeding did not start until almost 3 pm.
The three judges hearing the defendant’s appeal were Jose A. Cabranes, [Clinton Democrat], Guido Calabresi [Clinton Democrat], and Richard J. Sullivan [George W. Bush Republican].
The entire hearing was live streamed
There was no video only audio. There were some parts where the sound was less than optimal, so there may be some lapses in the transcription courteously provided to us by a Frank Report volunteer.
I will make comments for clarification only [in brackets and bold.]
Judge Calabresi:
Here’s USA versus Rainiee and Bronfman. Mr. Tully, is Mr. Tully participating by Zoom?
Tully: Yes, Judge. Joseph Kelly present.
Judge Calabresi:
Yes, go ahead.
Tully:
Thank you. Joseph Tully on behalf of Mr. Raniere. I would like to thank the court for letting me appear remotely. And I am honored to be here to argue before the court.
The two points I’m going to hit are the Sixth Amendment violation, as well as the commercial sex act instruction supplement. The Sixth Amendment violation is that Mr. Raniere was denied his sixth amendment right under Crawford v. Washington. 41 us 36 2004. when the court prematurely terminated the defense counsel’s cross examination of the government’s key cooperating witness.[Lauren Salzman]
I respectfully request that this court remand this case to the District Court.
The witness at issue from which Mr. Raniere’s trial counsel was cut off was the cooperating codependent. She had pled guilty to racketeering and conspiracy, racketeering before testifying. And she was the eighth witness for the government. The only government witness to plead and testify. The court [the trial judge, Nicholas G. Garaufis] during cross examination cut off cross examination very abruptly. It did so after hearing the defense’s question, and specifically telling the witness, that she could answer that question.
Then when the witness started to answer the question, the court cut her off, and then terminated the cross examination by saying, “counsel, you’re done.” And did this in front of the jury; told defense counsel that he no longer ask any questions. But here’s the key point. The court then solicited more questioning from the government. Twice, the court said after terminating defense counsel’s cross examination, told the government do you have any questions?
Judge Sullivan: Well, the government generally gets it has some questions. I mean, it goes back and forth, right? You have direct, you have cross, you redirect, recross. So your view is that a cross can’t be terminated unless the Court also denies a redirect?
Tully: No, my view is that the court can’t later claim it was a composure [break] needed for the witness because the court offered the government the ability to solicit further questioning. So the excuse that this was a composer break cannot apply in this case due to that fact.
Judge Sullivan: Well, how long was the cross relative to the direct?
Tully: In terms of proportionality? I’m not certain. But I think that–
Judge Sullivan: Is that relevant?
Tully: I don’t believe it is because cross examination doesn’t have to be proportional to direct for either side, for either the government or the defense. The defense might have been planning a very long cross examination. I don’t think the record establishes that the defense had a full and fair opportunity to confront and cross examine the witness. So in terms of where the defense was going, the record is absolute proof that the defense did not get to ask all the questions the defense wanted. The trial counsel was trying to establish a defense through this key witness, and was not able to do that. And because of that denial, the Sixth Amendment was violated here.
Judge Sullivan: Well, you’ve identified a number of things that I guess, would be gone into, but many of these things were already addressed, and certainly before the jury, right? Including, I guess, the length of time [prison sentence] that the cooperator was looking at, right?
Tully: I think that the intent of the DOS group, as perceived by this witness, was crucial to this case. And the defense was not allowed specifically to get into that area. And that was one of the main defenses that defense counsel was obviously trying to establish.
And the court [Judge Garaufis] stepped in and stopped that from occurring.
Judge Calabresi: Counsel, could you address another point? And that is the admission of the evidence of things [relating] to abortion, which is clearly prejudicial, but which is said to be probative with respect to the age of the one of the people [Camila] who were allegedly maltreated by your side [Raniere]? Could you address the degree of probative? Because our cases are very, very easy on the district court being able to make that judgment, that I would like to hear a little bit more about the [inaudible]
Tully: I think you’re right on point here. It was not probative, and any slight probative value was far outweighed by its prejudicial effect on the jury. Here the government needed to establish that there was a relationship between Mr. Raniere and that individual [Camila], and perhaps the beginning, the genesis of that relationship, the age of the parties during that relationship, but the aspect of the abortion had nothing to do with that. I mean, it was minimal; minimally probative. It was easily proved [the other facts of their relationship] and had been proved other evidence, and yet [the abortion evidence] was allowed in. It was extremely prejudicial.
Judge Calabresi: Thank you.
Tully: Moving on to the commercial sex act. The jury as instructed was given the law by the judge: [the judge told the jury] A commercial sex act is any act of which value is given to or received by any person because of such sex act.
And then later on [in Judge Garaufis’s instructions to the jury he told them], a thing of value need not involve a monetary exchange and need not have any financial component. By eliminating the quid pro quo causal relationship, the court defines, or the court’s definition of a commercial sex act–
Judge Calabresi: Counsel is there any reasonable difference between “because of” and “on account of”? I mean, we’ve used these both interchangeably so often.
Tully: Well, so here, [for a commercial sex act] there needs to be a quid pro quo, causal relationship that has to happen. Otherwise, any sex act, or nearly any sex act, is to be a commercial sex act. The unions that resulted in the makeup of this court would be a commercial sex act. Any sex act where somebody buys the other partner dinner afterwards would be a commercial sex act. My hypotheticals in my supplement remain true.
Judge Calabresi: Counsel, I’m not saying that the question of whether this was for value in this case isn’t close [call]. Would be close. I’m just saying that the argument is made reversibly close [that is strong enough to get the conviction on the sex trafficking charge vacated] by the use of a word “because of” rather than “on account of.” [That] doesn’t strike me as going anywhere. The argument is that somehow there wasn’t enough evidence? Well, again, our cases are pretty strong [precedent] in letting it go to the jury. I’m interested that the jury found it found.
Tully: Again, so I think ‘on account of’ implies more of a quid pro quo relationship [than ‘because of’.] And, I’m not necessarily limiting my argument to, ‘on account of’ or ‘because of’ being tantamount. To be acceptable there needs to be a quid pro quo, causal relationship. Again, other than that, my hypothetical of a boss and his wife having marital relations one night, and the boss buying his staff lunch the next day, because he’s in a good mood, would be a commercial sex act. So that has reached an absurd point, and you reach an absurd conclusion, and it’s this court’s obligation to stop absurdity in the law from occurring.
Judge Calabresi: Now, Mr. Tully, I just want to note for the record, I have given you twice as much time as you originally allocated, but that’s fine. I just want to point out that you will reserve one minute rebuttal, but I have a clerical question for you. To clarify the record, have you submitted, as part of the record, an unredacted copy of the memorandum and order that was issued by Judge Garrafus on May 3, 2019 ruling on your motions in limine? Do you remember that?
Tully: I don’t recall that, no. Judge Calabresi
Judge Calabresi: Maybe Mr. [Ronald] Sullivan [Bronfman;s attorney who was present] will have something to add to that. But in any event, why don’t you just make a note of it? Judge Garafush on May 3, 2019 ruled on your [Raniere’s] motions in limine and he did so in an unredacted memorandum and order. And so the question is whether that ought to be part of the record here. I assume so. So perhaps you could arrange with the clerk’s office to submit an unredacted copy by tomorrow at the close of business Eastern time? Thank you.
Tully: I will do so, thank you.
Judge Calabresi:Thank you very much.
[What followed was the oral arguments of Bronfman attorney Sullivan, which we will present in another post.Fiollowing his argument, AUSA Hajjar spoke addressing Tully’s arguments.]
Ms. Hajjar: Good afternoon, and may it please the Court. My name is Tanya Hajjar. I represent the government on this appeal for the District Court. With the court’s permission, I will address the arguments raised by Mr. Tully, counsel for Raniere, and my colleague Kevin Trowel will address the arguments raised just now by counsel for Miss Bronfman.
I’d like to start where Mr. Tully began, which was the limitations on cross examination of Lauren Salzman, the cooperating witness who testified in this case.
Raniere’s counsel [Marc Agnifilo] indicated the record was unclear about how much time the counsel at trial intended to cross examine Miss Salzman, but the record is quite clear about that. The record reflects that Raniere’s counsel had indicated to the court that he had approximately 15 more minutes, that he intended to conclude by the end of the day, this is government appendix 395. And that he was nearing the end of the cross examination. That’s government, appendix 384.
And Judge Garrafus’s ruling at the end of the trial, denying the motion for the mistrial reflects that. He [Judge Garaufis] stated, “you told me.” This is addressing counsel for Raniere, “you were going to finish by the end of the day. It was about 10 to five at the time that I instructed you to sit down because you were not following my instructions about the questions you were asking and placing the witness in some peril, having a breakdown, as you pointed out at the time.” And just to respond to Mr. Tully’s point about redirect. There was no redirect in that case. The court, the the cross examination and examination of Ms. Salzman terminated at the end of this colloquy. Counsel for Raniere failed utterly both in the briefing before the district court and in his appellate briefs, what questions if any, he would have asked on cross examination.
Judge Sullivan: Well, it sounds like they would have been the standard things that you ask, I guess, at the end of a cross of a cooperator, which is ‘you’re looking at a lot of time unless the government writes you this letter ?’ “You’re going to be facing, you know, a gazillion years.’ That’s just sort of that usual stuff.
Hajjar: Yes. And I would note, your honor, that the cooperation agreement was in evidence. But even more critically here, there was no effort. This was an unusual treatment of a cooperating witness in the sense that there was no effort [by Agnifilo] to challenge Miss Salzman’s credibility throughout the cross examination. Counsel at no point attempted to cast Miss Salzman as uncredible or a liar, or that she was lying, that the lie was occasioned by her agreement with the government. Rather, counsel made a strategic choice, used open-ended questions throughout cross examination to elicit favorable testimony; he made use of information.
Turning then to– unless you’re the court has further questions, turning then to the argument set forth in Raniere’s supplemental brief regarding the district court’s instruction on commercial sex. The complaint that Raniere’s counsel makes regarding the substitution of the phrase ‘because of’ or ‘on account of’ was not preserved [for appeal by Agnifilo] and in any event, it’s meritless because the instruction given was accurate. There is no difference between those phrases, and there was no error in the charge, much less plain error.
Judge Calabresi: Could you address the introduction of the abortion evidence and how that really is relevant? And if it couldn’t have been done in a way that was much less prejudicial? And know, we almost always give the district court full discretion in that [they usually don’t second guess the trial judge on whether evidence is prejudicial], but wasn’t this really a bit going out of the way?
Hhijar: Yes, Judge Calabresi. The district court didn’t abuse its discretion, and permitting the government to introduce two fairly limited types of evidence regarding abortion in this case. And that evidence was first Daniella’s testimony regarding having underwent an abortion as well as her sister Camilla. And the medical records that were introduced for the purpose of demonstrating that Camilla had indicated to medical professionals that she had been five years with partner [Raniere] and she was 18 at the time of that statement. That were the two categories of evidence of abortion. And what’s significant here, and what the district court recognized was that Daniella’s testimony made clear that Pamela Cafritz, that’s the woman referred to in Raniere’s brief as Raniere’s closest confidant and supporter, brought Daniella to the [abortion] clinic and told Daniela to lie about the identity of the father [Raniere] of her child and her immigration status [she was illegal, from Mexico]. And Cafritz subsequently accompanied Camilla to the same clinic and instructed Daniela and Camilla, about what to say and what to do at the clinic and, quote, “made sure everything went according to plan.”
The District Court acknowledged the sensitivity of the evidence relating to abortions, but found it relevant to both the child [sexual] exploitation charges [of Camila] and the lengths to which Pamela Cafrtiz who is a member of the [racketeering] enterprise went to groom Raniere’s sexual partners, which was among the means and methods that were alleged in the enterprise. And who/where it was involved–
Judge Calabresi: Listen. Wasn’t there a lot of evidence that could have been introduced to make the same points about timing and something else [other than introducing abortion]? Which wouldn’t go into that issue? The issue of abortion, which is the hardest issue in current life today? I mean, we’re not talking about a simple issue, which is somewhat prejudicial or something, we’re talking about something that is in the newspapers every single day. Now, the government for introducing that is doing something that’s rather dramatic. And I know district court’s have discretion, but isn’t this a case where one could say it’s just not been wisely executed?
Hajjar: I apologize Judge Cabranes, I couldn’t hear the end of your remarks. But with respect to your question about–
Judge Calabresi: Hold on a second. Judge, would you care to repeat your remarks?
Judge Cabranes: Yeah, We don’t normally say that this is something that is out of line, but wasn’t, given a current situation, that sort of situation that might be appropriate to say that the district court just went beyond what is the appropriate discretion?
Hajjar: I believe the District Court did appropriately balance the potential prejudice here with the probative value of the evidence. I will note there was far greater evidence of abortions that could have been introduced, but was not.
The judge directed the government to be circumspect about what it admitted and what testimony it introduced. And the government asked the witness [Daniela] to describe her experience, which she did, and described what, again, the woman that Raniere says is his closest confidant, supporter and was part of the charged enterprise, did in connection with concealing the identity of Camilla, the father of the child of both Daniela and Camilla, and asking them to lie about other salient details, including their immigration status.
That her involvement in that was significant and important to establish, your honor. And I do think it was done with sensitivity to the subject of abortion and what it could mean.
Judge Cabranes: Thank you. Unless your honors have further questions.
Judge Calabresi: To go back to this clerical inquiry of mine. To Raniere’s counsel. You recall the unredacted copy of the memorandum and order of Judge Garafus of May 3, 2019?
Hajjar: May 3rd 2019?
Judge Calabresi: Yes. Ruling on Raniere’s motions in limine?
Hajjar: May just have a moment to look?
Judge Calabresi: Sure. It’s really a mechanical concern of mine. If Raniere’s counsel has any difficulty, I’m sure you will be able to help him get the unredacted document before us?
Hajjar: Yes, of course, your honor. We’ll do that.
Judge Calabresi: Okay. Thank you.
[Following Hajjar, AUSA Kevin Trowel replied to Bronfman’s attorneys arguments, which we will report in a subsequent post. after Trowel finished, Tully was given a chance to make a one minute rebutall.]
Judge Calabresi: All right, Mr. Tully. You’re still with us I’m sure. You reserve one minute.
Tully: Thank you very much. I will address counsel’s [Hajjar] points. In terms of cross examination, it is a very fluid process. Fifteen more minutes, I would say every person who has ever advocated in court knows that that is not an accurate statement. Furthermore, cross examination means oftentimes you want to end on a crescendo. That was cut off.
Judge Sullivan: But why would it have been a crescendo? I’m trying to figure that out. I mean, highlighting her, the cooperator’s, the fact that she’s looking at potential sentence. What a plea agreement said, I mean, these are all things that would undermine the jury’s confidence in this witness, but it seemed like this witness’s credibility was not really attacked in summations. Was it?
Tully: Exactly. So I would concur on that point. The witness’s credibility was not [challenged] correct, because the intent of cross examination [of Laruen Salzman] was to elicit testimony regarding the intent or state [of mind] claimed, as it relates to racketeering. If her state of mind was to produce goodwill in the world, clearly, this wasn’t racketeering. And that’s precisely why her credibility was not questioned. So that’s not an issue.
The defense attorney [Agnifilo] was building to a crescendo of getting to her intent on racketeering. The judge said he cut it off because the trial was going into a one. And that’s not true. The court listened to the question and said ‘you may answer.’ The government just brought up that the court said that the witness needed a composure break, and that was not true, because again, the court twice tried to elicit the government to engage in recross, or redirect. And the government declined to do so. So the government wasn’t foreclosed from doing it where the defense was.
In terms of abortion, images of fetuses were shown to the jury. So that is highly prejudicial. Images of fetuses that were eventually aborted were shown to the jury. Again, highly prejudicial.
And to address for the last time counsel’s statements ‘because of.’ Think of any sex act in the world, and the jury instruction covers this. A commercial sex act is any sex act of which anything of value is given to or received by any person ‘because of’ such sex act.
So ‘because of’ the union that produces court, one of the first things I said was that I was honored to be here. A thing of value does not need to involve monetary exchange. I’m honored to be here. This court is here, that makes all the union’s that produced this court a [commercial] sex act. It’s so wide open, takes to an absurd (inaudible). And this court must put an end to it.
Respectfully, must remand this case back to the District Court.
Judge Calabresi: Thank you, Mr. Tully, very much.
***
Raniere’s supplemental brief
