By A Lawyer Who Knows the Case
For purposes of understanding Clare Bronfman’s plea deal in the context of the criminal case, permit me to share my observations.
To begin with, I don’t think her plea deal was a great day for justice. I truly wish she had been required to plead to a racketeering count. I disagree with the apparent terms of this deal.
First, as to restitution, Clare is only responsible for paying restitution to the identified subjects of the charged offenses. Or, to put it another way, those persons who were harmed as “a direct and proximate cause of the charged offenses.”
[That means, in Clare’s case, the estate of Pamela Cafritz and the Jane Doe who Clare lied about regarding her salary on a visa application – the latter’s restitution is capped at $96,605.25. Clare will also pay a fine of $6 million to the government which, of course, will not go to victims.]
The government’s position is that, even for a racketeering charge, restitution is only available for the identified subjects of the particular defendant’s charged predicate racketeering acts.
Not sure I fully agree, but it is a complicated area. I think broader restitution arguments could be made for some or all of the defendants, but criminal restitution is a very narrow area and is very likely one of the reasons 18 USC 1595 grants an express right of action for victims of peonage, forced labor, and human trafficking offenses.
Most of what people might expect to see in this case is simply not going to be there. I’ve seen cases where child exploitation victims were awarded as little as $1,800 – the commercial value of the number of images the government could prove were distributed. I’ve seen forced labor cases where the victims were awarded minimum wage, or the difference between what they were paid and what they should have been paid had they been paid minimum wage. Personal injury damages are never awarded in criminal restitution. Medical expenses may or may not be. Lost earnings, almost never. There have been racketeering cases where some of the charges involved law enforcement officers shot in the line of duty – and the courts denied them all their lost future earnings even when they were permanently disabled or killed.
Clare Bronfman has no non-prosecution agreement with any prosecutor’s office. This is important for people to understand: The investigation is still ongoing. Charges have been referred to the US Attorney’s Office for the Northern District of New York, which presumably is waiting for the conclusion of this trial to start making presentations to a grand jury, and Clare has no guarantees or promises and likely plenty of exposure in other areas of investigation.
I have not seen the plea agreement but I do not believe there is any cooperation component. This offers some insight into the balancing act both the prosecutors and Clare Bronfman’s lawyers had to undertake: She may not testify against Raniere at trial, but she has no guarantees that she won’t be charged later for other offenses. And the court may take into account her lack of cooperation in sentencing her.
Because Raniere’s name appears in virtually every paragraph of the charges, people can probably expect that evidence regarding Clare’s conduct will be put on as part of the prosecution’s case against Raniere.
For all we know, the prosecutors for the US Attorney’s Office for the Eastern District of New York may have felt they didn’t need Clare’s testimony or that it would make the trial more complicated. There are risks in every jury trial. Prosecutors sometimes make decisions based on issues of proof, and here we have the mastermind Raniere going to trial.
Some people seem to have expected too much. Clare was not the subject of all that many charges or charged racketeering acts. My initial prediction as to what her plea deal would include was somewhat off because it was based on a fairly expansive/aggressive reading of the indictment and sentencing guidelines. Three to four years may have been a realistic expectation, but Allison’s and Lauren’s underlying racketeering acts were far more serious than Clare’s and look at their guidelines ranges.
I believe that as of right now it is highly likely Raniere will be going to trial. I see little possibility of a deal for him.
The DOJ changed its policy in the late 2000s to stop demanding privilege waivers as a condition of cooperation agreements and plea deals. This change in policy was due to widespread abuses by DOJ.
Sooner or later, the plea agreements of Clare Bronfman, Allison Mack, Lauren Salzman, Nancy Salzman, and Kathy Russell will most likely be unsealed and made part of the public record. I don’t think the defendants can be sentenced without the plea agreements being made public.
People also need to know this: People should stop being afraid of retribution from Clare Bronfman. Simply put, it’s not happening. First, the FBI is not taking its eyes off of Clare anytime soon. Second, she will be going to prison, and then three years of parole. She is not going to be engaging in any activities that could complicate her situation or get her into further trouble for a very long time to come.
This is all the more true for people who cooperated with the FBI investigation because they are protected federal witnesses. Clare may be stupid, but even she is not that stupid.
Upset as people are, Clare is going to prison for a couple of years and her exposure at trial was not really all that much more. Whatever the government’s reasons for making trade-offs, they now have a very clean trial against Raniere. And I do not think this trial will be the closing act for this play.