Case 1:18-cr-00204-NGG-VMS Document 498 Filed 04/03/19 Page 1 of 5 PageID #: 5176

April 3, 2019

BY ECF & EMAIL

The Honorable Nicholas G. Garaufis

United States District Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, NY 11201

Re: United States v. Raniere, et al., 18 Crim. 204 (NGG)

Dear Judge Garaufis:

I write respectfully on behalf of Kathy Russell in further support of our motion to

dismiss based on the government’s representation to Ms. Russell at the outset of her
grand jury appearance that she was not a target of the investigation. As explained below,
recent discovery has confirmed what we already believed to be true: that at the time the
government specifically told Ms. Russell that she was not a target, it had already obtained
substantial evidence implicating her in criminal conduct. Given these new disclosures,
we respectfully renew our request for an evidentiary hearing.

Specifically, we received last night an initial production of 3500 material. 1

Among that production were three 302s reflecting interviews with witnesses conducted
before Ms. Russell appeared before the grand jury on May 10, 2018. These 302s and
corresponding handwritten notes – a November 14, 2017 interview with ,a
May 2, 2018 interview with and a May 7, 2018 interview with
– include witness statements directly linking Ms. Russell to the commission of a
variety of crimes, including tax evasion and visa fraud. The relevant passages are
excerpted below and the full 302s (highlighted for the Court’s convenience) are attached:

1
The government has indicated that more 3500 material is forthcoming, both from the
witnesses already identified, as well as additional witnesses. However, it has not
provided defense counsel with any schedule for those additional productions.
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2
All exhibits referenced herein are filed under seal.
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While these statements, standing alone, implicate Ms. Russell directly, their
significance is even more obvious when read in context with other information the
government also had in its possession. This information included, in particular, evidence
about Ms. Russell’s role in transporting Jane Doe 4, an undocumented alien, across the
Canadian border, and evidence seized from 3 Oregon Trail in March 2018 – materials the
government later claimed showed that Ms. Russell was responsible for “not filing tax
returns for various Nxivm entities.” (October 2018 Oregon Trail Warrant Application ¶
24).

According to the United States Department of Justice’s U.S. Attorney’s Manual

(“USAM”), “A ‘target’ is a person as to whom the prosecutor or the grand jury has
substantial evidence linking him or her to the commission of a crime and who, in the
judgment of the prosecutor, is a putative defendant.” USAM 9-11.151. While the
Second Circuit has not had an occasion to interpret the USAM definition of a target,
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circuits that have addressed the issue have uniformly concluded that the test is objective,
namely, that if the government possessed information that could have led to Ms.
Russell’s indictment, she was unquestionably a target and should have been treated as
such. See United States v. Crocker, 568 F.2d 1049 (3d Cir. 1977) (“[T]he test as to
whether a witness is a target of a grand jury investigation cannot be whether he
‘necessarily’ will be indicted, but whether according to an objective standard he could be
indicted.”); see also United States v. Kilgroe, 959 F.2d 802, 804 n.2 (9th Cir. 1992) (“A
putative defendant is one against whom the Government already possesses incriminating
evidence at the time of his appearance before a tribunal, or upon whom the Government
has focused as having committed a crime.”) (emphasis added); United States v. Babb, 807
F.2d 272, 278 (1st Cir. 1986) (“[W]e find that the reasoning of . . . Crocker is
dispositive.”); see also United States v. Drake, 310 F. Supp. 3d 607, 628-29 (M.D.N.C.
2018) (subjective intent of a prosecutor cannot be determinative, because it ‘has a
significant capacity to mislead as to the government’s knowledge and possible future
consequences”).

Moreover, regardless of the appropriate legal standard, the government has

assumed the objective test to be correct. In its opposition to Ms. Russell’s motion, the
government stated: “[A]ssuming arguendo that the standard urged by the defendant was
correct, i.e., that whether according to an objective test the defendant could be ‘charged
with any crime,’ the defendant was not a target at the time of her grand jury appearance.”
Gov. Opp. at 15. Indeed, despite the wealth of incriminating information it knew it had at
the time of Ms. Russell’s grand jury appearance, the government went so far as to
represent unequivocally to this Court that Ms. Russell was not “chargeable with a crime.”
Id.3

Given the highly incriminating information in the 302s that were produced last
night – and given the substantial documentary evidence already in the government’s
possession as of Ms. Russell’s May 10, 2018 grand jury appearance – we respectfully
renew our request for a prompt evidentiary hearing. In connection with that request, we
ask the Court to direct the government to produce immediately the following:

(1) All 302s reflecting any statements concerning Ms. Russell that relate to
interviews conducted before May 10, 2018;

3
Incredibly, one month earlier, in questioning a different witness before the grand jury,
the very same government lawyer advised that the witness was not a “target,” but then
made clear that he was a “subject”

The implication that the same AUSA chose not to make a similar fulsome disclosure
to Ms. Russell is clear: the government hoped to lull her into waiving her Fifth
Amendment rights and answering questions on incriminating topics.
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(2) The evidence that the government received after May 10, 2018 that
supposedly made Ms. Russell, in the view of the government, chargeable with
an offense; and
(3) Any communications, including email correspondence, text messages and
internal memoranda, reflecting statements by any DOJ employee, or other law
enforcement officer, in the possession of the United States Attorney’s Office
concerning Ms. Russell before May 10, 2018. 4

We note that as to our first request, we are asking for material that the Court has
already directed the government to produce “on a rolling basis.” See Feb. 28, 2019
Order.

In light of the trial schedule, we respectfully request that any hearing be scheduled
for tomorrow or Friday.

We appreciate the Court’s consideration.

Respectfully submitted,

/s/

Justine A. Harris
Amanda Ravich

Attachments

cc: All counsel of record (via ECF)

4
We have told the government that we will agree to an attorneys’ eyes only protective
order with respect to any of the requested materials.