A lawyer for Keith Raniere, the convicted leader of the alleged sex cult NXIVM, focused on the definition of a “commercial sex act,” alleged sixth amendment violations, and supposedly prejudicial abortion evidence during a hearing in front of the U.S. Court of Appeals for the Second Circuit on Tuesday, May 3.
The appeals hearing got under way almost two years after Raniere was sentenced to 120 cumulative years in prison for his role as the leader of NXIVM. The year before, Raniere was found guilty on all seven criminal charges against him, including sex trafficking, racketeering, wire fraud, conspiracy, and conspiracy to commit sex trafficking.
The first argument Raniere’s lawyer, Joseph Tully, made to the panel of three judges was the court violated Raniere’s sixth amendment rights when it prematurely terminated the defense’s cross examination of a key witness, Lauren Salzman. Tully claimed the defense didn’t have a “full and fair opportunity to confront and cross-examine the witness,” and as such, the Sixth Amendment was violated.
Another focus of Tully’s argument was that the judge overseeing the original trial, U.S. District Judge Nicholas Garaufis, supposedly misled the jury with his definition of a commercial sex act. Tully seemed to suggest that Garaufis had too broadly defined the term when he defined it as, “Any sex act of which value is given to, or received, by any person because of such sex act.” Tully’s argument hinged on the judge’s use of “because of,” instead of “on account of,” arguing the latter carried an implicit quid pro quo necessary to keep the definition narrowly focused. Tully even tossed off a few hypothetical scenarios that he claimed would incorrectly be labeled commercial sex acts because of the “because of” wording, including “a boss and his wife having inter-marital relations one night and the boss buying his staff lunch the next day because he’s in a good mood.”
The judges on the appeals panel, however, seemed skeptical of Tully’s semantic claims. They also pushed back on his earlier claim about the Sixth Amendment violation, with one judge noting that the issues the defense wasn’t able to address during the Salzman cross were things that had already been discussed before the jury, including a possible sentence for Salzman, who was cooperating with the prosecution.
Prosecutor Tanya Hajjar picked up on that as well, claiming Tully “fails to identify what questions, if any, he would’ve asked on cross-examination.” Tully did offer a bit more during a rebuttal later, stating that Raniere’s defense counsel at the time wasn’t able to end on a crescendo, or elicit testimony from Salzman as it related to her intent on racketeering.
There was one area, however, where Tully seemed to score a bit more purchase with at least one judge — though it wasn’t one Tully brought up himself. Early on, Judge Guido Calabresi asked Tully to address what he called the “clearly prejudicial” admission of evidence regarding abortions performed on two sisters, who’d become pregnant by Raniere. Both sisters testified during Raniere’s trial and spoke about the alleged abuse they suffered, but when it came to the details they shared about their abortions, Tully agreed with Calabresi’s characterization of the evidence, saying whatever value it may have had was “far outweighed by its prejudicial effect on the jury.”
Hajjar, in turn, argued the abortion evidence was fairly limited in scope, but still valid. She pointed out in particular that medical records tied to the abortion of one of the sisters, Camila, was used to help establish that she was underage when Raniere began a sexual relationship with her.
Along with Raniere’s appeal, a lawyer for another marquee NXIVM supporter, the Seagram heiress Clare Bronfman, appeared in court to argue that the prison sentence she received for her involvement was unreasonable. Bronfman pleaded guilty to several charges, including identity theft and immigration fraud, and was ultimately sentenced to six years and nine months in prison.
But Bronfman has claimed that her sentence is too severe because, she argues, she was not involved in the intra-NXIVM group, DOS, that Raniere was accused of running. (DOS infamously comprised “masters” and “slaves,” with Raniere serving as the “grandmaster”; according to testimony, “slaves” were forced into sex acts and physical labor, forced to submit “collateral” in the form of explicit photos and other compromising material, and even branded with Raniere’s initials.)
While Judge Garaufis, who also oversaw Bronfman’s case, acknowledged during her sentencing that she’d not been in DOS, he stated that she’d been “willfully blind” to the group. Bronfman’s lawyer, Ronald Sullivan, seized on this wording and argued that it led Garaufis to unfairly give Bronfman a punishment that was not only harsher than what prosecutors had originally sought, but harsher compared to other high-profile NXIVM members such as Allison Mack and Kathy Russell.
But like their squabbling with Tully over “because of” vs. “on account of,” the panel didn’t seem particularly swayed by the “willful blindness” claim. At one point, Sullivan argued that the notion of Bronfman’s “willful blindness” was brought up only during sentencing, thus not giving Bronfman the opportunity to respond to it. One judge replied, “You’re quibbling with the characterization of the use of a phrase, but the facts referenced by that phrase are pretty well explained.”
Later during his rebuttal, Sullivan also tried to allege that Bronfman was punished in part for her wealth and privilege, which he called “a due process violation that does shock the conscience.” A judge, however, jumped in: “I’m not sure it shocks mine. So explain this to me: If you have tremendous wealth and you use that to destroy the enemies of the people who are opposed to what ends up being a RICO enterprise, that’s not something that the court should, or can, consider?”
The three judge panel will rule on Raniere and Bronfman’s appeals at a later date, though no exact date was given for when their rulings will be announced.
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