3.Sentencing Argument — Defense Request for 20 Years

MR. AGNIFILO: Thank you, Your Honor. May it please the Court. Members of the Government and everyone who has come to court today.

I read each -- I'm going to stand over here so I can see Your Honor more clearly.

MR. AGNIFILO: Yes, thank you.

I read every letter that every person submitted, both from the prosecution and the letters that we submitted in Keith Raniere's behalf. I listened very, very closely to the people who spoke very powerfully this morning and this early afternoon. And I'm trying to find the words and the themes that I think could possibly, even at this late hour, reach Your Honor and convince Your Honor somehow not to sentence Keith Raniere to a life sentence.

I am very mindful of the amount of hurt and deep pain that is expressed by people in the letters and as they spoke to the Court earlier today. And I've been trying to find a way to describe it, to explain it, and I think if one reads all of the letters, well over 100 letters on both sides, considerably more than that, in fact, and if one considers the trial testimony, the first thing one sees, I submit, is that this was a community once upon a time. That once upon a time there was a community in Clifton Park and the surrounding areas that many, many people loved, believed in, and believed was doing good. And I think that is the first step in the analysis that I would like to try and ask the Court to take with me in understanding some of the very powerful statements that were made here today.

People loved NXIVM. Mark Vicente when he testified went on and on about he loved NXIVM. So many of the different people who testified at trial, some of whom are here today, testified they could have done other things in their lives, but they chose to forego those other things and they chose to join this community in Albany under the tutelage, the leadership, the vanguardship of Keith Raniere, because they believed in it and they loved it and they trusted him, Judge. That is such an important part of this whole analysis. They trusted Keith Raniere. They looked up to Keith Raniere. And they were absolutely sure that Keith Raniere had their best interest at heart.

In trying to find the right word, because sometimes the right word can help with the analysis, I thought long and hard and I thought of a word being the perfect word, in my opinion, the word, if you believe the Oxford English Dictionary, it was the word that was first used in year 1275 and the word is "betray." And the original meaning, the definition of the word "betray," is to deliver more people to the enemy by treachery, the meaning of the word "betray." And I think it's a useful way to analyze some of the things that happened in this case.

First, your people. This is very close community. They were all together. They believed they were all united in interests. They believed they were all united in interests doing something truly special, doing something that they generally thought was advancing the cause of humanity. This is not a group of ne'er-do-wells looking to sort of just self-aggrandize and do thinks that don't have important ends in and of themselves, it's the exact opposite, and NXIVM attracted terrific people.

I think it was Toni Natalie earlier today who said that Keith surrounded himself with good people, and that just seemed to actually be the case. There's no question about it. I can say that the people that I've met, some of whom testified at the trial, Judge, some of whom spoke this morning to Your Honor, I thought were outstanding people. I thought they were loving, wonderful, sweet, good people, each and every one of them. I haven't met a bad person yet. And these were good people who came here for the best of reasons, for the best of reasons and they sacrificed much to be in this community. And what has happened is they have reached the conclusion that Keith Raniere betrayed them.

Now, I think it's very important that we stop for a second and take note of all the things they didn't say. No one says, because it could not be validly said, that Keith Raniere was cruel to them at the time. No one said at the time, I knew that this is -- he was being mean to me. He was being abusive to me at the time. He was doing things that were mean-spirited to hurt me at that time. What they all say was something very, very different and it's only really understandable through the lens of betrayal. What they're saying is, I believe now, I believe now, that he was abusing me then. I believe now that he was cruel to me then. I believe now his intentions were bad then. That's a very different thing, Judge. A very different thing, because that is something that can be influenced. And I know everybody seems to be waiting for me or Mr. Raniere when he addresses Your Honor to say, I had bad intent all the time. The whole while, I was abusing everybody, I had bad intentions. I wanted to hurt them. He's never going to say it. He's never going to say it, because he doesn't believe it. He doesn't believe it, Judge. As he sits here today, he doesn't believe it.

Do I think having done this for as long as I have that maybe his best shot at avoiding a life sentence is for him to say it? Yeah. Maybe that's the best thing to say, that maybe Your Honor doesn't give him a life sentence. But it just wouldn't be true from his perspective. And we are sentencing him based on his perspective --

MR. AGNIFILO: Yeah.

There's one I think is important to point out, Camila wasn't available to us either after she got a lawyer. So it was not --

MR. AGNIFILO: I think that's probably right.

But if -- if -- I mean, I'm the only one standing here, and what my moral and legal obligation is, if someone wants a lawyer, to give them a number of names. That's what I did. And she didn't like two, and she did like one, and that was the last time we ever spoke to her.

MR. AGNIFILO: The point I'm trying to make, Judge, is he did a lot of good things in his life. That's a heartland 3553 factor. He did a lot of good things to the curriculum. I'm sure Your Honor read all of the letters we submitted from people who still support him and believed in what he is doing. And they are not flying monkeys. They're nice people. They're good people, just like the people who have decided to leave NXIVM and have a different view. They're all nice people. They're all people who wanted to improve themselves and to improve humanity. That's who they all are, including the people who wrote those letters saying that all the wonderful things that he did, all of the wonderful things he did with the community.

The Tourettes project, we have letters on that, Judge. We have letters from people who had Tourettes, and who no longer suffer from the -- from the effects of Tourettes, and they credit the -- Keith Raniere and Nancy's work in that regard. And that's what they say. They wrote these letters to the Court, and I think that's a very important factor.

Another factor, and we go through this in our sentencing memorandum, is the Mexican Peace Initiative. The Mexican Peace Initiative, we have letters from certain people who lived in Mexico who have first-hand information about the work that Keith Raniere and others did to try and stop the kidnappings in Mexico, including someone who lived in a small, run-down poor community in Mexico for a period of 18 months and tried to show this small town in Mexico that they could sort of organize a community and take care of each other and live together and make their lives better. And this was all inspired by Keith Raniere.

And my point, Judge, and I think it's an important point, I think it's a very important point just what we had this morning, is that people believed in this work. They believed in him, and now they feel betrayed. And now they look back at what happened back then through a different lens, and I don't think it's accurate, is my point. I don't want to -- I'm not going to get into the details. I don't know that every statement that was made this morning to Your Honor was factually correct. I don't think they all were. And so we don't need to dissect each one, because the important thing is this is how these people feel.

But my point is they don't feel this because Mr. Raniere was cruel to them at the time. They view him as having been cruel now. That's what --

MR. AGNIFILO: No, it's not the same idea.

I think the idea was that Sarah didn't want her friends or certain people she cared about to stay in NXIVM, and so she went into the computer and she eliminated -- she changed the computer files so that their credit cards wouldn't be billed. I mean, it's very specific information, you know. And at the end of the day, Vancouver did or did not, you know, bring an investigation and certainly didn't bring any charges. So that's what happened with that.

What happened with the information that was NXIVM's information that people got when they took the courses is it was published on a website, and that might be a violation of intellectual property rights. And there was a long litigation, we discussed it at the trial at length, and that was something that happened because they reasonably believed -- lawyers, with good lawyers -- and one thing that I want to add that Kristin Keeffe in her letter to Your Honor mentioned someone named Steve Coffey. Steve Coffey was a lawyer, an independent lawyer, highly regarded lawyer at a law firm in Albany, former, I think, Albany County prosecutor and he made a lot of these decisions.

I mean, this is not, you know, Clare on her own or Keith on his own. Do I think personally that they would have benefitted by adult lawyer supervision at the time? Yeah, I do. I think they could have really benefitted from adult lawyer supervision. And say, You know what? You guys are burning a lot midnight oil over a lot of stuff that doesn't matter, and you're creating a lot of problems.

MR. AGNIFILO: Yes, Judge.

I think part of the reason that happened is I think this community felt like it was being attacked. And what we -- I think we saw in some of the trial evidence is we saw Keith and Kristin for a while because we had their e-mails and Keith and Clare for a while because we have some of their e-mails; what appears to be reasonably believing that people are trying to undo them. You now, there might be an aspect of paranoia to it. There might be. I mean, some of that I felt was showcased in the evidence.

There were times when Keith thought people were following him or outside his house or whatnot. So, you know, yes, I think they were looking to protect themselves. Do I think they brought too much litigation? Absolutely. But, you know, here we are all these years later. So I don't know that that, you know, is really -- one of the factors I think is the most important for sentencing.

What I think is the most important for sentencing, Judge, which is why I started with it, is a lot of people have very strong feelings, and they come here and they're hurt. This case has so much heartbreak, in my opinion, heartbreak, because so many people -- I mean, I mentioned Mark Vicente, I'll mention him again. He's hurt. On that video statement, he's hurt. He doesn't know what to do. He says as much. I don't know what I'm going to do with my life now. That's sad, Judge, and it's sad that they feel that way.

But I think it's important that the first step in betrayal, the first step in betrayal is that there was this closeness. There was this love, and I thought the person who put it the most eloquently was Adriana in something she said this morning. She said -- she started by talking to Keith, and she said, There's a love that was all around you, and you never touched. Those were her words, Judge. And she got it perfectly. And what she's saying is, We loved you. We loved you. We trusted you. We believed in you, and you betrayed us. So why did you betray us? Why did you betray us? What happened? And the problem as -- as Your Honor started to point out is -- and this is something that I think that Barbara Bouchey said and Toni Natalie said and other people have said it, he was in love with some of these women. He was in love with them. I think Toni Natalie said, He doesn't know how to let go. Those are her words. I'm not her. You don't know how to let go. He's not trying to hurt someone -- he's not, Judge. He's not trying to hurt someone.

And, Judge, I can see that you disagree with me. I know --

MR. AGNIFILO: I'm not going to quarrel with the jury verdict, and I don't. The jury has spoken. And your Honor is absolutely correct, your Honor's job, what we're all here to do is give a sentence based on the jury's verdict.

And my point in talking about intent and the circumstances of the offense certainly goes to a 3553 factor because it's the nature and circumstances of the offense. And so that's why I'm discussing that.

MR. AGNIFILO: As your Honor knows, he wasn't charged with or convicted of having sex with Camila. He was charged and convicted of the photographs.

And if your Honor remembers my trial defense, I didn't really dispute the photographs all that much. The way I disputed them is they were never shown to anybody and the jury shouldn't consider them as either child pornography or as a racketeering predicate because they were photographs that were taken and then for the rest of time they just stayed on a device, they never got sent anywhere, never got shown anywhere.

So that's how I dealt with the photographs at the trial. I didn't say anything one way or another about them. I didn't say at the trial anything one way or another about Camila at 15 years old.

MR. AGNIFILO: So in the spring I started getting text messages from someone not identifying themselves. This person is on again/off again, I do want to talk to you, I'm not going to speak to you. She ends up speaking to me. It ends up being Kristin.

Kristin and I talked on the phone a number of times. She basically says that she feels that she's deserves child support. So I say, I think you probably deserve child support too. So I talk to Raniere about it, I'm not going to get into the details of that discussion.

But at some point I tell Kristin if we're going to talk about trial support you have to get a lawyer, I'm not going to talk about child support with you. If this is some sort of a negotiation, the only way it can work is if the Court orders some sort of money judgment. Then I don't know what the laws are regarding priority, I really have no idea. But if you want to try to be on record as being entitled to child support, have your lawyer contact the prosecutors and work it out. And basically that was the end of the discussion. I did discuss it with her, that's kind of where we left it.

I point out that Mr. Raniere has two children, one with Marianna, that was referred to this morning, and one with Kristin. I don't know what the future holds in terms of child support or available funds.

One of the things I told Kristin's lawyer is, if you remember from the trial, Judge, there is the Pam Cafritz' estate. I have no idea what is going on with that, there are lawyers handling that, who frankly I've never spoken to. I said, call them, they are in Albany or nearby.

MR. AGNIFILO: Obviously he's never been in trouble with the law before. He's a 60-year-old man. And I'm asking the Court for a 20-year sentence. Ordinarily that would seem like an astronomical sentence for a 60-year-old man with a first arrest.

And there is one other point that I want to make, and I think it's an important one. At no time, nothing in the evidence, and this is an exhaustively investigated case where a tremendous amount of people come forward, no evidence of a single instance where someone said to Keith Raniere, 'I don't want to do this; I don't want you to hold my hand; I don't want you kissing me;' and he did it any way. None. That's the man we're going to sentence.

First arrest, 60-year-old man. I think a 20-year sentence is more than a sufficiently long sentence for this particular 60-year-old man.

One thing I want to end with, it's important in terms of placement. The Government in its sentencing memorandum took something out of context, I think it's very important, that they took out of context. Because what they said Mr. Raniere said was that, 'The Judge should know he's being watched.'

MR. AGNIFILO: 'The Judge should know he's being watched.' In their sentencing memorandum they have him on a recorded phone call to someone saying, 'The Judge should know he's being watched.' But what his whole statement was, 'The Judge should know he's being watched by someone wise. Have you been speaking with Alan Dershowitz.'

It's just a very important distinction because without really understanding this he could be designated to someplace where he shouldn't be.

I know that -- one thing I also want to address, Judge, because it's come up I don't want to gloss over it. I know that your Honor got a very long letter from a number of people, I think on Friday. And the letter is discussing computer tampering. And they consulted with four experts, one of whom is a PhD in computers. And there has been a conclusion there is computer tampering.

Just to be clear, so the record actually says this, I have been asked many, many times to file that motion. I was asked by my client, I was asked by others. I studied this stuff, I think I understand it. And in my estimation, being the lawyer on the case, I did not think that it rose to the level of making a prosecutorial misconduct motion in the form of a Rule 33.

What I will tell your Honor is, I don't know what the future is going to hold, I'm still looking into it. I don't know if it's going to turn the corner and become something different than what it is. But I decided not to file the motion. My client wanted me to file the motion. And I made a decision not to file the motion.

And in making that decision I did a number of things. I consulted the Rules of Professional Responsibility, for one. I looked at my own sense of ethics and the fact that I would be in front of your Honor soon asking for 20-year sentence. And I thought that was the right thing to do, and I still think it's the right thing to do.

One of the reasons I didn't file the motion is because if more evidence of this comes to light, in the future I didn't want to basically take my one Rule 33 shot now. So I made the decision not to file the motion. That's why it came the way it did because I wouldn't file it.

So your Honor, in closing, I think a 20-year sentence is more than enough. It shows tremendous respect for the law. It is a very severe sentence for a 60-year-old man, for any person but for a 60-year-old man, that's my request Judge.