1.Exclusion of Collateral-Return Emails
47 lines(In open court; outside the presence of the jury.)
THE COURT: All right. Everyone can be seated.
Good morning.
MS. PENZA: Good morning, Your Honor. Moira Penza, Mark Lesko, and Tanya Hajjar for the Unites States, and along with us is Special Agent Michael Weniger from the FBI and paralegal specialist, Teri Carby.
THE COURT: Good morning.
MR. AGNIFILO: Good morning, Your Honor. Marc Agnifilo and Teny Geragos, also at Defense table is Mr. Paul DerOhannesian and Danielle Smith for Mr. Keith Raniere, and Mr. Raniere, who is with us this morning.
THE COURT: Good morning.
All right. Anything before we start?
MS. HAJJAR: Your Honor, there's just one matter before we begin. The request for the return of collateral, Your Honor ruled on one of those requests. There are e-mails that were sent by DOS members to, among others, Lauren Salzman, members of the national executive board and others, asking for their collateral back and saying the collateral was obtained through fraud.
Those requests for collateral we do intend to admit three of them through this witness because they establish her -- the fact that she received these requests and did not conspire with them, and that the requests themselves involve a list of the collateral that has been provided and she received them, was on notice that the fact that they were request for collateral were provided to her, you know, on the basis of fraud and ignored those requests at NXIVM's direction and sent them to other members of NXIVM, including Clare Bronfman.
That's an important and significant part of that narrative and so we do expect to introduce those exhibits at some point today.
MR. AGNIFILO: And we object, Your Honor, on two bases, Judge.
First, these are e-mails that a purported DOS -- persons in DOS sent to her lawyer after Keith Raniere was arrested. And in this e-mail, this woman is making specific allegations of criminal conduct in regard to how her collateral was obtained saying it was obtained by fraud, without her consent and things like that. And I think this is Heartland Crawford material because it's being sent to her lawyer, who is at the moment is a civil lawyer, but she knows at the time she's sending it to her lawyer that Mr. Raniere's been arrested. She's preserving her version of facts, and when Judge Scalia -- deceased Justice Scalia wrote in the Crawford decision that the thing that he was targeting in the Supreme Court of the United States was targeting was prosecution through this sort of affidavit, you know, written statements that are uncross-examinable, this is precisely what the Crawford decision is talking about, because I have no ability -- when this person says this collateral was gained through fraud, I can't cross-examine her. She's not going to testify. She testifies, we're in a different ballpark, but if she doesn't testify, I can't cross-examine her and here she is making written, specific allegations of criminal conduct at a time when there's a criminal action pending and at a time when she has an attorney and she's forwarding them to her attorney.
So I think in addition to it being hearsay, it's Heartland Sixth Amendment. We have a Sixth Amendment right to confront our accusers. If we can't confront this woman on why she's making these allegations, I think we have a Sixth Amendment confrontation problem and I object.
MS. HAJJAR: Your Honor, just some factual clarification. I don't think that the e-mails were provided to the -- the e-mails were sent directly to Ms. Salzman, among others. Ms. Salzman, they were forwarded to the defendant, they were forwarded to Clare Bronfman, who upon receipt, decided to promulgate a different narrative about what had happened with DOS. I don't believe it's factually accurate that they were provided to counsel first. These were requests for collateral which were the product of extortion and that was the intent of sending those e-mails request collateral back. So it's significant. It's part of the act of extortion, part of the act of wire fraud to request the materials that were the product of those funds, and it's important to explain what Ms. Salzman did and why she did it. And the fact that other members of NXIVM knew about what was being asked and knew about DOS at the particular times these e-mail were sent.
THE COURT: Well --
MR. AGNIFILO: Judge, there's an e-mail sent by someone named Carly, and I think Your Honor already ruled that that was included under 403, if I'm not mistaken. And then, from what I understand, this application, there are e-mails sent by, I don't know what we're calling this person, K is her first initial of her first name and --
THE COURT: Did you know about this before today?
MR. AGNIFILO: Well, we know we got a list of proposed exhibits yesterday afternoon and we've been discussing it. And we reached agreement on some and we didn't reach agreement on some and these are some that we didn't reach agreement on.
MS. HAJJAR: These exhibits were provided some time ago, Your Honor, and --
THE COURT: May I see the exhibits?
MS. HAJJAR: Yes.
THE COURT: You can all sit down. Thank you.
All right. Take a short break and I'll take a look at it.
MS. HAJJAR: Thank you, Your Honor.
MR. AGNIFILO: Your Honor, can I just remind the Court, Your Honor deals with 1473 in Your Honor's May 14th order on Page -- bear with me -- Page 5.
MS. HAJJAR: And, Your Honor, at that time, Your Honor left open the possibility that the Government can establish the theory on which these exhibits are admissible. This is that moment, Your Honor.
THE COURT: All right. Thank you.
(Recess taken.)
THE COURT: All right. Please be seated. Of the three documents, Government's Exhibit 418 --
MR. AGNIFILO: I'm sorry, Your Honor. I apologize. Can I interrupt you?
We're waiting for Mr. Raniere to come out. I don't mean to interpret you. I apologize.
THE COURT: No, no, that's fine.
All right. I've reviewed the three documents, Government's Exhibit 418, 428, and 1473, and I'm not going to permit their introduction. I mean, first of all, this individual, if you want to produce the individual and have the individual testify, that's one thing, subject to cross-examination.
The other is that this witness, you can question the witness on whether she received demands for the return of collateral and if she doesn't remember, you can show them to her to refresh her recollection. And I'll give you a wide opportunity to go into that. But I'm going to -- I'm barring the introduction of those three exhibits because they are pretty specific in the accusations against Mr. Raniere. So let's move on.
Anything else?
MS. HAJJAR: Yes, Your Honor. Just on the specificity of the allegations, these exhibits were sent to not only Ms. Salzman, but others in July and September of 2017.
THE COURT: Okay. On the NXIVM board?
MS. HAJJAR: Yes.
And subsequent to that, Your Honor, members of the NXIVM board and others, including the defendant, including Ms. Bronfman put out public statements in support of DOS saying that it was a women's organization. That it was a good thing. That they didn't -- denying understanding that there were -- that members were unhappy, that they sought their collateral back and denying the content of these letters. So in the Government's view, these are significant because of the timing of them. These e-mails were sent to Ms. Bronfman. They were sent to members of the executive board, all of whom were on notice about what was being said by DOS and another one put out false statements regarding DOS and regarding the defendant's involvement in it. That's significant in the Government's view, Your Honor.
THE COURT: What am I supposed to be doing about that?
MS. HAJJAR: Your Honor, we offer them for -- even for the purpose of establishing that they were sent for that -- not for its truth of the content of the e-mail, but for the fact that they were sent to the individuals in that e-mail at the time they were sent.
THE COURT: Are you trying to get in the e-mails that were sent out by the DOS members? By NXIVM? What are you trying to achieve? I've already ruled on these. I'm not going to change my ruling on these.
MS. HAJJAR: Then I think it's important, Your Honor, to elicit that even if the exhibits themselves are not admitted, that the content of the e-mail and to whom they were sent, the fact that they were sent to the executive board and to Ms. Bronfman in July, in September prior to the public statement that NXIVM made.
THE COURT: You can ask.
MS. HAJJAR: Okay. Thank you, Your Honor.
THE COURT: Okay. Anything else?
(No audible response.)
THE COURT: Okay. Let's bring in the witness, first.
(The witness resumes the witness stand.)
(Pause in proceedings.)
(Jury enters the courtroom.)
(Jury present.)
THE COURT: Please be seated.
Good morning, Members of the Jury.
JURORS: Good morning.
THE COURT: All right. At this time we're going to continue with the direct examination of Lauren Salzman.
And I remind the witness that she is still under oath.
L A U R E N S A L Z M A N, called as a witness, having been previously duly sworn, was examined and testified as follows:
THE COURT: Ms. Hajjar, you may continue.
MS. HAJJAR: Thank you, Your Honor.