Case 1:18-cr-00204-NGG-VMS Document 435 Filed 03/15/19 Page 1 of 2 PageID #: 4438

U.S. Department of Justice

United States Attorney

Eastern District of New York
MKM:MKP/TH/MJL/KMT 271 Cadman Plaza East
F. #2017R01840 Brooklyn, New York 11201

March 15, 2019

By ECF

The Honorable Nicholas G. Garaufis

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

Re: United States v. Keith Raniere, et al.

Criminal Docket No. 18-204 (S-1) (NGG) (VMS)

Dear Judge Garaufis:

Pursuant to the Court’s order and in advance of the anticipated hearings

pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), the government
respectfully submits the enclosed proposed examination. Where a proposed question is only
relevant to either Clare Bronfman or Keith Raniere, the relevant defendant’s initials are noted
in parentheses.

The proposed questions also address one additional aspect of the potential
conflict regarding Teny Geragos and Mark Geragos’s familial relationship that the
government did not previously raise. Namely, Mark Geragos may be incentivized to advise
Bronfman to remain in this case, even if it is not in her best interests, so that Raniere and
Raniere’s counsel (including Mark Geragos daughter, Teny Geragos) can continue to benefit
from fees Bronfman is presumably paying for joint defense efforts. As the Court is aware,
Raniere’s legal fees have been paid thus far by a defense trust primarily funded by
Bronfman, which is almost depleted. Based on an inquiry by the Court, Raniere’s attorneys
have represented that once the fund is depleted they will continue to represent Raniere at no
cost. As long as Bronfman remains in the case, Raniere and Raniere’s counsel (including
Mark Geragos’s daughter), continue to benefit from Bronfman’s payment of expenses related
to a joint defense without Raniere’s counsel having to deplete the defense fund or incur the
cost themselves as counsel. Therefore, Mark Geragos would have an incentive to advise
Bronfman to remain in the case even if it were not in Bronfman’s best interest for the benefit
of his daughter and his daughter’s client, Raniere.
Case 1:18-cr-00204-NGG-VMS Document 435 Filed 03/15/19 Page 2 of 2 PageID #: 4439

The government respectfully requests that the Court advise the government of
the nature of defendant Bronfman’s ex parte submission on March 12, 2019, which the
government understands related to the potential conflict raised by the government so that the
government may respond, if appropriate.

Respectfully submitted,

RICHARD P. DONOGHUE
United States Attorney

By: /s/ Moira Kim Penza

Moira Kim Penza
Tanya Hajjar
Mark J. Lesko
Kevin M. Trowel
Assistant U.S. Attorneys
(718) 254-7000

cc: Counsel of Record (by ECF)

2
Case 1:18-cr-00204-NGG-VMS Document 435-1 Filed 03/15/19 Page 1 of 4 PageID #: 4440
Proposed Curcio Examination
United States v. Keith Raniere et al., 18-CR-204 (NGG)

(A) Potential Conflict of Interest Posed By Familial Relationship Between Attorneys

for Co-Defendants

1. How did you choose Mark Geragos as your counsel? (CWB)

2. Were any of Keith Raniere’s attorneys involved in your choosing Mark

Geragos as your counsel? (CWB)

3. Have you received any inducements, promises, or threats with regard to

hiring Marc Geragos? (CWB)

4. Was Keith Raniere or any of Keith Raniere’s attorneys involved in your

decision to terminate Susan Necheles? (CWB)

5. Have you received any inducements, promises, or threats with regard to

terminating Susan Necheles? (CWB)

6. Your prior counsel stated that you will not be paying any additional legal
fees for Keith Raniere once the trust is depleted, is that still true? (CWB)

7. To the extent you and Raniere jointly incur legal fees (for example the cost
of private investigators, briefs that your attorneys draft but that Raniere
joins, the cost of a discovery vendor, etc.), do you pay those in full
yourself, separately than from the defense fund? (CWB)

8. Are you satisfied with the services of your attorneys thus far in the case?
(CWB)

9. You previously stated you are satisfied with the services of your attorneys
thus far; has anything changed since the last Curcio hearing? (KAR)

10. Do you understand that, in every criminal case, including this one, the
defendant is entitled to the assistance of counsel whose loyalty to him or
her is undivided, and who is not subject to any force or consideration that
might in any way intrude upon the attorney’s loyalty to his or her client’s
interests?

11. The New York Rules of Professional Conduct that lawyers in this state
must adhere to recognizes that a familial relationship, like the father-
daughter relationship between your lawyer and a lawyer for [Keith
Raniere/Clare Bronfman], “may” create a “significant risk” of a conflict
that would undermine your right to conflict-free counsel in this criminal
matter.
Case 1:18-cr-00204-NGG-VMS Document 435-1 Filed 03/15/19 Page 2 of 4 PageID #: 4441
Proposed Curcio Examination
United States v. Keith Raniere et al., 18-CR-204 (NGG)

12. As a result, those Rules of Professional Conduct “ordinarily” prohibit

lawyers with a close familial relationship from representing parties in the
same matter, unless the parties have knowingly and voluntarily consented
to the representation.

13. You do not need to understand the Rules of Professional Conduct. But I
want to make sure you understand the risk posed to your constitutional
right to conflict-free representation where, as here, close family members
are representing different parties to the same matter.

14. Because your attorney [Teny Geragos/Mark Geragos] is related to an

attorney for your co-defendant [Teny Geragos/Mark Geragos], there “may
be a significant risk” that [he/she] may inadvertently or intentionally
disclose matters to your co-defendant’s attorneys that should be kept
confidential. Do you understand?

15. Additionally, your attorney’s [Teny Geragos/Mark Geragos] relationship to

an attorney for your co-defendant [Keith Raniere/Clare Bronfman], may
interfere with your attorney’s loyalty to you and [his/her] exercise of
professional judgment in your interests. Do you understand?

16. As a result of this familial relationship, your lawyer may be influenced to

advise you to do things that are in your co-defendant’s best interests. Do
you understand?

17. Or, as a result of this familial relationship, your lawyer may be influenced
to do things in [her father’s/his daughter’s] best interests and not in your
best interests. Do you understand?

a. For example [Teny Geragos/Mark Geragos] may be influenced by a

desire to avoid [her father/his daughter] facing reputational damage
by employing/not employing a legal strategy that could hurt [her
father’s/his daughter’s] client but would be in your best interest.
Do you understand?

b. As another example, because it has been represented that the

defense fund is almost depleted and that Raniere’s attorneys will be
trying this case without full compensation, it may be in Mark
Geragos’s interest to keep you in the case longer than would
otherwise be in your interest so that his daughter’s firm does not
have to bear the cost of legal services that you are currently paying
for as part of a joint defense. Do you understand? (CWB)
Case 1:18-cr-00204-NGG-VMS Document 435-1 Filed 03/15/19 Page 3 of 4 PageID #: 4442
Proposed Curcio Examination
United States v. Keith Raniere et al., 18-CR-204 (NGG)

i. For example, to the extent you currently bear the cost of

legal services that his daughter’s firm would otherwise be
providing for free (ex. paying for private investigators,
drafting briefs that Raniere joins, and maintaining a
discovery vendor) Mark Geragos may be incentivized to
have you remain in the case, even if it is not in your best
interest. Do you understand? (CWB)

18. Have you consulted with counsel other than your attorneys about the risks
associated with this potential conflict of interest?

19. Have you been satisfied with your Curcio counsel?

20. Let me give you some examples of the ways in which your attorney’s
ability to represent you might be affected by the fact that [she/he] has a
close familial relationship with the attorney representing your co-
defendant. This could affect the way that your lawyers consider and advise
you:

a. Whether, and when, you should plead guilty;

b. Whether you should seek to cooperate with the Government;

c. What defenses you should raise;

d. Whether you should testify at trial;

e. Which witnesses should be cross examined, and what questions

they should be asked;

f. Which witnesses should be called, and what other evidence to offer

on your behalf;

g. What arguments to make on your behalf to the jury;

h. What arguments to make to the Court, and what facts to bring to the
Court’s attention, before trial, during trial, or, if you are convicted,
at your sentencing.

21. Tell me in your own words what your understanding is of the potential
conflict of interest arising in this situation.
Case 1:18-cr-00204-NGG-VMS Document 435-1 Filed 03/15/19 Page 4 of 4 PageID #: 4443
Proposed Curcio Examination
United States v. Keith Raniere et al., 18-CR-204 (NGG)

(B) Right to Conflict-Free Representation

22. Do you understand that you have the right to object to your attorneys’
continued representation of you based upon the existence of a potential
conflict of interest?

23. It is important that you understand that no one can predict with any
certainty the course that this case will take or how this conflict may affect
it.

24. What is your understanding of the right to “effective assistance of

counsel”?

25. Is there anything I have said that you wish to have explained further?

26. I have given you an opportunity to think about what you have been told,
and to talk it over with counsel other than your attorneys, do you need any
additional time to think this potential conflict over or to speak to your
Curcio counsel privately?

(C) Continuation of Curcio Hearing

27. Given that your attorney’s familial relationship with a lawyer for your co-
defendant may adversely affect your defense, do you still believe that it is
in your best interest to proceed with your attorneys?

28. Is that your wish?

29. Do you understand that by continuing in this fashion with your attorneys,
you are waiving your right to be represented by an attorney who has no
conflict of interest?

30. Are you knowingly and voluntarily waiving your right to conflict-free
representation?

31. Do you agree to waive any post-conviction argument, on appeal or

otherwise, that, by virtue of your attorney’s familial relationship with a
lawyer for your co-defendant, you were denied effective assistance of
counsel?

32. Is there anything that the Court has said that you wish to have explained
further?