We thought that Nxivm bookkeeper Kathy Russell had made a pretty interesting last-minute argument for dismissing charges against her, but Judge Nicholas Garaufis rejected her motion to dismiss with a pretty interesting order we knew you’d want to see.
Russell had argued that she was sand-bagged by prosecutors last year who told her she wasn’t a target of the investigation when they asked her to testify before a grand jury. She was duped, she argued, and for that reason she should be dropped from the Nxivm prosecution.
But Judge Garaufis has now denied her motion to dismiss and her request for an evidentiary hearing.
On May 10 last year, a few weeks after Keith Raniere was arrested in Mexico, Russell appeared before the grand jury. She was told that she was not a “target” of the investigation, but prosecutors did not say whether she was more than just a witness and was a “subject” of the probe. Even so, Russell invoked her Fifth Amendment rights and didn’t answer two of the three initial questions asked of her. But then she did answer some of things she was asked over the next hour and a half.
She answered the Government’s questions on a range of topics, including: her experiences with Nxivm, including the courses she took and her positions within Nxivm; the nature and philosophy of Nxivm and related entities; and certain Nxivm rules, rituals, and ranking systems. She also invoked the Fifth Amendment roughly 50 times. She invoked on a wide variety of topics, some of them seemingly mundane, including her level of education; her decision to move to Albany to work for Nxivm when her son was in Alaska; her job as a Nxivm bookkeeper; Keith Raniere’s sexual partners; whether she was a member of DOS or had discussed it with Keith Raniere; why she did not ask people whether they were branded; whether she knew anyone in Nxivm who had had an abortion; cash stored at Nancy Salzman’s house; whether she had heard of anybody staying confined to a room for a long period of time; and her weight. The Government also engaged Russell in an extended conversation about whether she had ever asked Raniere about allegations that he had sexually abused minors or raped a particular woman. The Government noted that it had evidence that Keith Raniere had had sex with underage girls. Additionally, the Government asked her when she was “last in Canada,” if she had “ever made false [identification] for anyone,” and if she was “aware of Nxivm ever paying to obtain passwords to somebody’s email account” or “to hack in somebody else’s computer.” The Government then called for a short break, which gave Russell an opportunity to consult with Fanciullo [her attorney].
After the break, she invoked the Fifth Amendment many more times to complete her two hours on the stand.
Two and a half months after her testimony, she was indicted and arrested. The government claimed that in that time, they had found much more documented evidence of wrongdoing by Russell.
Judge Garaufis then gives us a little more detail on what, exactly, Russell is accused of.
For Act One, she is alleged to have committed “conspiracy to commit identity theft and to unlawfully possess an identification document in connection with her role in a conspiracy to illegally transport a woman across the Canadian border.” For Act Two, she is alleged to have committed “conspiracy to commit identity theft and identity theft in connection with her involvement in the installation of a ‘keylogger’ on a computer belonging to an accountant for Nxivm, so that his email address and password could be obtained and his emails monitored.’
But Russell is arguing that charges should be dismissed because she wasn’t told the government had evidence of her wrongdoing when she appeared before the grand jury, even if she did refuse to answer most of the questions.
Judge Garaufis, however, found the government’s argument persuasive that Russell was indeed not yet a target of the investigation when she testified in May, and that it was subsequent evidence found by prosecutors that convinced them to indict her.
He also says it’s disingenuous for Russell to claim that she was duped into testifying because she didn’t think she was a subject of the investigation — her own behavior demonstrates that she knew she was walking into a dangerous situation.
She invoked in response to one of the very first questions she was asked—even before the Government had instructed her on her Fifth Amendment rights. Before the break in which she consulted with counsel, she invoked 50 times with regard to a wide variety of topics, some of which were facially mundane and unthreatening. This belies Russell’s suggestions that she felt she was “not in the Government’s sights” and that the Government’s imprecise advice gave her an overly narrow understanding of her right to invoke. Indeed, each time she invoked, she stated that it was because her answer to the question may tend to incriminate her. Despite what she says now, the transcript
makes clear that she knew how to invoke and believed that she had criminal exposure.
So, although the government might have been a little more forthcoming to Russell when she was subpoenaed to the grand jury, Judge Garaufis has decided that it didn’t affect the situation she now finds herself in.
It seemed to be a pretty good last shot at a dismissal by her attorneys, but now she’s likely to be back where she was a few weeks ago, and looking for a plea deal to get herself out of this thing before trial starts on May 7.
Here’s the document…
Nxivm Doc 528: Order on Russell Motion to Dismiss by Tony Ortega on Scribd
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Posted by Tony Ortega on April 15, 2019 at 16:10
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Tony Ortega is a journalist who was formerly the editor of The Village Voice. He’s written about Scientology since 1995, and in May 2015 released a book about Scientology’s harassment of Paulette Cooper titled ‘The Unbreakable Miss Lovely,’ and more recently a compilation of his stories, ‘Battlefield Scientology.’ He continues to monitor breaking developments in the Scientology world, as well as other subjects at The Underground Bunker. You can reach him by sending him a message at tonyo94 AT gmail.com (Drop him a line if you’d like to get an e-mail whenever a new story is posted.)
