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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.

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

The Honorable Nicholas Garaufis April 3, 2019 Page 2

2

All exhibits referenced herein are filed under seal.


The Honorable Nicholas Garaufis April 3, 2019 Page 3 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,
