384 F. Supp. 3d 282
E.D.N.Y2019Background
- Keith Raniere is charged in a Second Superseding Indictment with RICO conspiracy (18 U.S.C. §1962(d)), substantive RICO (18 U.S.C. §1962(c)), forced-labor conspiracy (18 U.S.C. §1589(a)), wire‑fraud conspiracy, and sex‑trafficking offenses (18 U.S.C. §1591), based on his leadership of Nxivm and a secret subgroup called DOS.
- Government alleges DOS was a pyramid‑structured, women‑only hierarchy in which “slaves” provided monthly collateral (sexually explicit material, letters, financial rights) and performed onerous "acts of care" and assignments, some involving sexual activity for Raniere.
- The Indictment lists multiple predicate racketeering acts over a multi‑year span (2003–2018), including identity theft, money laundering, visa fraud, extortion, forced labor, child‑pornography and sex‑trafficking counts.
- Defendants moved to dismiss many counts and predicate acts for lack of specificity, failure to plead a RICO pattern, duplicity/multiplicity, and failure to state offenses; they also sought a bill of particulars, Brady disclosure, preclusion of government experts, and permission for foreign witnesses to testify by videoconference.
- The court treated indictment allegations as true for motion‑to‑dismiss purposes, reviewed related filings and discovery, and denied the motions in full, reserving limited matters (e.g., expert disclosures timeline) for later resolution.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Raniere et al.) | Held |
|---|---|---|---|
| Sufficiency of RICO conspiracy pleading (Count One) | Count alleges enterprise, defendants, time period, types of predicate acts and means/methods; RICO conspiracy need not identify specific predicate acts. | Indictment too generic: lists categories not specific statutes/elements; fails to plead relatedness/continuity; duplicitous (multiple conspiracies charged as one). | Denied. RICO conspiracy pleading met Rule 7(c): need only identify enterprise, association, time, types of predicates and means; relatedness/continuity are proof issues, not heightened pleading requirements; not duplicitous. |
| Sufficiency of substantive RICO (Count Two) | Indictment lists predicate types with dates and actors; "to‑wit" clauses need not fix proof; defendant has adequate notice. | Several predicate acts fail to identify underlying offenses/elements; some predicate formulations (e.g., 8 U.S.C. §1324 subsection) raise constitutional concerns; duplicity. | Denied. D'Amelio and related precedent permit notice via core allegation; many particularity objections are premature; constitutional issue over §1324(a)(1)(A)(iv) reserved (Gov't can rely on other subsections). |
| Child‑pornography racketeering acts (Acts 2–4) | Photos of a minor recovered from defendant's drive tie to enterprise; photos related horizontally/vertically to other predicates. | These acts are unrelated to the enterprise and should be dismissed or severed. | Denied. Pretrial severance/dismissal of individual predicates for lack of relatedness is premature; allegations show membership/purpose links. |
| Forced‑labor conspiracy (Count Six / Act 13) | Indictment, complaint and discovery identify victims, alleged threats (including collateral release), and labor/services obtained; provides sufficient notice. | Pleading is overbroad in time; fails to identify victims/acts/"serious harm" with specificity; alleged "acts of care" are not "labor or services" and collateral threats are not "serious harm." | Denied. Specificity adequate given indictment plus discovery/complaint; whether acts qualify as "labor/services" or whether collateral release amounts to "serious harm" are factual issues for trial/Rule 29. |
| Extortion predicate (Act Ten) | Government provided victims' identities and discovery; extortion alleged as state law predicate. | Indictment lacks nexus between threat and taking, victims, locations, dates, or threat details; requires heightened pleading under state law. | Denied. Defendant has sufficient notice from Indictment plus discovery and other filings; multiplicity arguments moot where only one extortion act remains. |
| Sex‑trafficking counts (Counts 8–10; Act 12A) | Allegations and discovery identify victims, timeframe and theory that sex acts were procured/maintained by coercion and that others benefited; "anything of value" is broad and can include non‑monetary benefits. | Indictment lacks specificity (victims, threats, locations, commercial nexus); "things of value" here are non‑commercial/status and not "on account of" sex acts; insufficient knowledge that coercion would be used; statute vague as applied. | Denied. Pleadings plus discovery supply adequate notice; scope/causation/knowledge and vagueness arguments are factual or premature; subparts of §1591(a) are alternative means, not distinct crimes. |
| Bill of particulars / Brady / Expert disclosure / Videoconference | Gov't provided extensive discovery, complaint and interview summaries; will comply with Brady and produce Jencks materials when required; identified expert topics and named experts. | Seek particulars on predicates, co‑conspirators, interstate elements of older acts; immediate Brady documents and agency files; preclude experts for late/insufficient disclosures; permit live video testimony of foreign witnesses. | Denied in all respects. Court finds discovery and filings sufficient to deny a bill of particulars and immediate Brady production; expert preclusion not warranted though Government must complete expert disclosures by court deadline; videoconference request denied without prejudice. |
Key Cases Cited
- Applins v. United States, 637 F.3d 59 (2d Cir. 2011) (RICO conspiracy need not allege or prove specific predicate acts or overt acts)
- Stringer v. United States, 730 F.3d 120 (2d Cir. 2013) (indictment must inform defendant of core criminality; heightened specificity only for certain statutes)
- D'Amelio v. United States, 683 F.3d 412 (2d Cir. 2012) (indictment need only plead the "essence" of the crime; particulars of means are not always essential elements)
- H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989) (definition of RICO "pattern": relatedness and continuity)
- Salinas v. United States, 522 U.S. 52 (1997) (RICO conspirators need not agree on every predicate act or know all co‑conspirators)
- Boyle v. United States, 556 U.S. 938 (2009) (definition of enterprise and common purpose under RICO)
- Walsh v. United States, 194 F.3d 37 (2d Cir. 1999) (court may consider the record as a whole for notice/double jeopardy questions)
- Yannotti v. United States, 541 F.3d 112 (2d Cir. 2008) (court may scrutinize and dismiss defective predicate acts without dismissing entire RICO count)