NXIVM is an American Company that is based in Clifton Park, New York, which offers personal and professional development seminars through its “Executive Success Programs” of large awareness training. The company is widely referred to as a “cult” and is alleged to be recruiting platform for a secret society, referred to as DOS – “Dominus Obsequious Sororium”, a Latin phrase for “Master over Slave Women”, in which women were branded (process by which a mark is burned into the skin of a living person), and forced into sexual slavery.
In 2018, NXIVM founder, Keith Raniere, and his associate, actress Allison Mack, were arrested and indicted on federal charges related to DOS, including sex trafficking. In April 2019, other NXIVM co-founder, Nancy Salzman, Lauren Salzman, Seagram (a large Canadian alcoholic beverage company) heiress Clare Bronfman, and bookkeeper, Kathy Russell – all had pleaded guilty to various charges of federal law violations.
After a six-week jury trial, Keith Raniere was convicted of racketeering, racketing conspiracy, wire fraud conspiracy, forced labour conspiracy, sex trafficking conspiracy, and two counts of sex trafficking.
The jury returned its verdict on the 19th of June 2019. On the 19th of October 2020, eight days prior to his sentencing, Raniere filed a Second Motion for a New Trial, pursuant to Fed R Crim P 33, contending that the recently obtained affidavits from two former DOS members establish that the “Government engaged in a widespread, systematic effort to threaten potential defense witnesses and to prevent them from testifying” and thus necessitating a new trial in the interest of justice.
U.S. District Court for the Eastern District of New York
Judge Nicholas Garaufis began his judgment by restating the facts upon which the jury deliberated their verdict. He referred to two witnesses who had been contacted by the Government to give testimony at Mr. Raniere’s trial but subsequently were never called in trial. This included Ms. Michelle Hatchette and Ms. Nicole Clyne, who submitted in affidavits to Mr. Raniere’s attorney, that they would have loved to attended Mr. Raniere’s trial in support of his defense but chose not to do so out of fear that the prosecution would come after them.
Judge Nicholas noted that on the 22nd of May 2018, and the 4th of June 2018, the government had interviewed Michelle Hatchette, a former DOS member, pursuant to a proffer agreement. Ms Hatchette had indicated to the Government that her participation in the affairs of DOS was voluntary.
The Government contacted Ms Hatchette’s attorney and stated that they intended to call Ms Hatchette as a trial witness, and advised her attorney that it “would be likely to charge [Ms Hatchette] with perjury” if she declined to participate in the interview. Ms Hatchette did not participate in the interview and did not testify at Mr Raniere’s trial.
Similarly, preparing for trial, the Government learned that Nicole Clyne, another former member of DOS was in possession of hard drives that contained the only known copies of DOS-related materials, including former members’ so-called “collateral”.
The Government had previously corresponded with Ms. Clyne’s attorney about interviewing Ms. Clyne in connection with its investigation, but Ms. Clyne had refused to speak with the Government unless she was offered protection from prosecution, and the Government did not agree to such a term.
Later, on the 9th of April 2019, the Government served Ms. Clyne, through counsel, with a grand jury subpoena seeking the DOS-related records in her possession. Ms. Clyne’s counsel told the Government that Ms. Clyne would invoke her Fifth Amendment right against self-incrimination if called to testify.
On the 10th of April 2019, the Government provided Ms. Clyne’s attorney with a letter granting act-of-production immunity in connection with production of the requested materials. Ms. Clyne’s attorney subsequently stated that she was asserting her privilege with respect to materials. The Government ultimately did not seek an order of statutory act-of-production immunity from the court and did not obtain the materials sought. Ms. Clyne subsequently was not called in to testify at Mr. Raniere’s trial.
In his judgment, Judge Nicholas stated that the evidence that forms the basis of Mr Raniere’s motion for a new trial as described in the affidavits of Ms. Hatchette and Ms. Clyne, is not newly discovered. It was noted that Raniere knew both personally before his arrest. Moreover, in the case of Ms. Clyne, she was “first line” DOS master who directly reported to Mr. Raniere. Regarding, Ms. Hatchette had sexual contact with Mr. Raniere in connection with an “assignment” given to her by Allison Mack, her DOS master.
Judge Nicholas held that the fact that Ms. Hatchette and Ms. Clyne did not offer to testify at Mr. Raniere’s trial pertains only to the availability of their testimony and does not suggest in any way that they were unknown to him. Moreover, the substance of the testimony that Ms. Hatchhete and Ms. Clyne allege that they would have given, were far from containing some sort of evidentiary revelation.
Instead, their hypothetical testimony described in their affidavits covers grounds that are well established. They principally allege that they would have countered the testimony of various witnesses that testified for the prosecution, who described elements of DOS, including the use of collateral, assigned labour, and certain members’ sexual contact with Mr. Raniere, as products of coercion and psychological manipulation. On the basis of this, Judge Nicholas denied the motion for a Second Appeal.
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