United States v. Raniere ( 2022 )

20-3520-cr (L)
United States v. Raniere
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2021
No. 20-3520-cr (L); 20-3789-cr (Con)
UNITED STATES OF AMERICA,
Appellee,
v.
KEITH RANIERE, also known as Vanguard, and CLARE BRONFMAN,
Defendants-Appellants,
ALLISON MACK, KATHY RUSSELL, LAUREN SALZMAN, and NANCY
SALZMAN, also known as Prefect,
Defendants. 1
On Appeal from the United States District Court
for the Eastern District of New York
ARGUED: MAY 3, 2022
DECIDED: DECEMBER 9, 2022
1 The Clerk of Court is directed to amend the caption as set forth above.
Before: CALABRESI, CABRANES, and SULLIVAN, Circuit Judges.
Following a jury trial before the United States District Court for
the Eastern District of New York (Nicholas G. Garaufis, Judge),
Defendant Keith Raniere was convicted of numerous crimes related to
his leadership of two organizations, a self-styled executive coaching
and self-help organization called NXIVM and a secret society called
DOS. On appeal, Raniere challenges his convictions for sex trafficking
crimes, in violation of 18 U.S.C. § 1591. At the center of his appeal is
the meaning of “commercial sex act,” which Section 1591 defines as
“any sex act, on account of which anything of value is given to or
received by any person.” 18 U.S.C. § 1591(e)(3). Raniere principally
argues that to qualify as a “commercial sex act,” there must be a
monetary or financial component to the “[]thing of value” that is given
or received and the relevant sexual exploitation must be for profit. He
contends that evidence the Government submitted at trial showing
that individuals received benefits, such as privileged positions within
an organization, are insufficient to sustain his sex trafficking
convictions. We conclude that Section 1591 requires neither that a
“[]thing of value” have a monetary or financial component nor that the
sexual exploitation be conducted for profit. Accordingly, we AFFIRM
the October 30, 2020 judgment as it concerns Raniere’s sex trafficking
offenses: the sex trafficking conspiracy (Count 5), the sex trafficking of
2
Nicole (Count 6), the attempted sex trafficking of Jay (Count 7), and
the racketeering act of sex trafficking of Nicole (Act 10A).
TANYA HAJJAR, Assistant United States
Attorney (Kevin Trowel, Assistant United
States Attorney, on the brief), for Breon
Peace, United States Attorney, Eastern
District of New York, Brooklyn, NY, for
Appellee United States of America.
JOSEPH M. TULLY, Tully & Weiss Attorneys
at Law, Martinez, CA (Jennifer Bonjean,
Bonjean Law Group, PLLC, New York, NY,
on the brief), for Defendant-Appellant Keith
Raniere.
JOSÉ A. CABRANES, Circuit Judge:
After a six-week jury trial, Keith Raniere was convicted in the
United States District Court for the Eastern District of New York
(Nicholas G. Garaufis, Judge) of numerous counts related to his
leadership of two organizations: a self-styled executive coaching and
self-help organization called NXIVM and a secret society called
“DOS,” an acronym for “Dominus Obsequious Sororium,” a phrase
that roughly translates to “Lord/Master of the Obedient Female
Companions.” At trial, the Government presented evidence that
3
Raniere led both entities as pyramid organizations, and that he—
alongside his “inner circle”—committed, attempted, or conspired to
commit various crimes, including sex trafficking, forced labor, identity
theft, wire fraud, racketeering, sexual exploitation of a minor,
possession of child pornography, and obstruction of justice. During
the lengthy trial, the Government also presented evidence that
members of the organizations recruited and groomed sexual partners
for Raniere, and that numerous women were coerced to engage in
nonconsensual sexual acts with Raniere.
On appeal, Raniere raises numerous challenges to his various
convictions. By summary order issued on the same day as this
opinion, we dispose of most of Raniere’s arguments (along with the
appeal of Raniere’s co-defendant, Clare Bronfman). We write
separately here to address Raniere’s arguments concerning his sex
trafficking convictions under 18 U.S.C. § 1591.
Raniere’s arguments turn on the meaning of “commercial sex
act,” which the statute defines as “any sex act, on account of which
anything of value is given to or received by any person.” 18 U.S.C.
§ 1591(e)(3). He principally argues that to qualify as a “commercial
sex act,” there must be a monetary or financial component to the
“[]thing of value” that is given or received, and the sexual exploitation
must be for profit. We conclude that the statute has no such
4
requirement. Accordingly, we AFFIRM the District Court’s judgment
concerning his sex trafficking convictions. 2
I. BACKGROUND 3
In or around 2003, Raniere founded an organization called
NXIVM, a self-styled executive coaching and self-help organization.
New members paid thousands of dollars to attend self-help
workshops. NXIVM members referred to Raniere as “Vanguard.”
In 2015, Raniere created the secret society “DOS,” which was
structured as a pyramid, with Raniere at the head, followed by first-
line “masters” and their subordinate “slaves.” “Slaves” were expected
to be obedient to their “masters.”
2 In particular, through this opinion, we AFFIRM his convictions for the sex
trafficking conspiracy (Count 5), the sex trafficking of Nicole (Count 6), the
attempted sex trafficking of Jay (Count 7), and the racketeering act of sex trafficking
of Nicole (Act 10A).
3 Because Raniere appeals his convictions following a jury trial, we recite
the facts from the trial evidence “in the light most favorable to the prosecution.”
Musacchio v. United States, 577 U.S. 237, 243 (2016) (“The reviewing court considers
only the ‘legal’ question ‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’”) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)); see also, e.g., United States v. Napout, 963 F.3d 163, 168 (2d Cir.
2020) (noting that “[b]ecause appellants . . . appeal their convictions following a
jury trial, we recount the facts viewing the evidence adduced in the district court in
‘the light most favorable to the government, crediting any inferences that the jury
might have drawn in its favor’” (quoting United States v. Rosemond, 841 F.3d 95, 99–
100 (2d Cir. 2016))).
5
Apart from Raniere, all DOS members were women. And
Raniere’s identity as the head of DOS was initially concealed from
newly recruited “slaves,” who were told that the organization was a
“women’s-only secret society.”
DOS “masters” recruited slaves mostly from NXIVM and
targeted women who were experiencing difficulties in their lives. To
join, DOS recruits were required to provide “collateral” to prove their
commitment to the organization. “Collateral” took many forms,
including sexually explicit photographs and videos of themselves,
rights to financial assets, and letters containing damaging
accusations—whether true or untrue—about family members and
friends.
DOS “slaves” were expected to provide their “masters” with
services called “acts of care,” which included buying them groceries,
editing videos, cleaning, and organizing. Each “slave” was expected
to provide about an hour of work per week for her “master” as her
“normal contribution.” In some cases, “masters” assigned their
“slaves” to engage in sexual conduct with Raniere and implied that
collateral might be released if the salves refused. DOS “slaves” were
also required to be branded with a symbol that, unbeknownst to them,
consisted of Raniere’s initials. During the branding ceremony,
participants were normally required to be nude and to say, “Master[,]
please brand me. It would be an honor, an honor that I want to wear
for the [re]st of my life.”
6
Allison Mack—a DOS “master” and one of Raniere’s co-
defendants who pleaded guilty to racketeering and racketeering
conspiracy—recruited Nicole 4 to join DOS as a “slave” in February
2016. As part of that process, Mack asked that Nicole provide
“collateral.” Nicole provided a series of letters she wrote falsely
alleging sexual abuse by her father and other damaging accusations,
as well as a sexually explicit video of herself. She was later required
to provide additional “collateral,” including credit card authorizations
and the right to her grandmother’s wedding ring.
Mack subsequently “assigned” Nicole to contact Raniere and
tell him that she would do “anything that he asked.” On May 31,
2016—while Nicole and Mack were together in Mack’s house—
Raniere called Mack, and Mack instructed Nicole to go outside so that
Nicole would meet Raniere “across the grass” from the house’s
backdoor. Raniere subsequently blindfolded Nicole, led her into a car,
and drove her to a house. He then led Nicole—still blindfolded—
through some trees and inside a building. There, he instructed her to
undress and tied her to a table. Another person in the room, whose
identity was unknown to Nicole, performed oral sex on Nicole. Nicole
subsequently told Mack about the incident, and Mack called Nicole
“really brave.”
Nicole had additional sexual encounters with Raniere during
her time as a DOS “slave.” Mack regularly required Nicole and other
4The District Court ordered that during trial, certain witnesses were only to
be referred to by first name or pseudonym.
7
“slaves” to pose for nude photographs, including close-up
photographs of their genitalia. Nicole also performed uncompensated
work for Mack, including transcribing tapes and reviewing articles.
Mack also recruited another “slave,” India, who in turn
recruited a second-order “slave” named Jay. Jay provided “collateral”
to India, including a sex tape and a video describing abuse to which
she was subjected as a child. She provided further “collateral” on a
monthly basis.
Jay was required to perform uncompensated services for Mack,
including cleaning her house, doing her laundry, and picking up her
groceries. She was also required to transcribe certain videos without
compensation. In addition, Mack gave Jay a “special assignment” to
“seduce” Raniere and “have him take a naked picture” of Jay; Jay
understood this assignment to include having sex with Raniere. Jay
refused to carry out the assignment and decided to leave DOS.
After Raniere and several members of his “inner circle” were
indicted, each of Raniere’s co-defendants pleaded guilty to various
crimes. Following a six-week jury trial before Judge Garaufis, Raniere
was convicted of: racketeering conspiracy (Count 1); racketeering
(Count 2); forced labor conspiracy (Count 3); wire fraud conspiracy
(Count 4); sex trafficking conspiracy (Count 5); sex trafficking of
Nicole (Count 6); and attempted sex trafficking of Jay (Count 7). 5 In
support of their guilty finding for Count 2, the jury found that the
5 We refer to the counts as they appear on the verdict sheet.
8
Government had proved that Raniere had engaged in all of the alleged
racketeering acts: four acts of conspiracy to commit identity theft, two
acts of identity theft, conspiracy to unlawfully possess an
identification document, two acts of sexual exploitation of a child,
possession of child pornography, conspiracy to alter records for use in
an official proceeding, trafficking for labor and services, document
servitude, 6 extortion, sex trafficking of Nicole, and forced labor. 7 The
District Court sentenced Raniere principally to 120 years’
imprisonment and a $250,000 fine.
II. DISCUSSION
We dispose of most of Raniere’s arguments on appeal in a
summary order filed simultaneously herewith. We write separately in
this opinion to address Raniere’s argument that a “commercial sex
act”—statutorily defined as “any sex act, on account of which anything
6 Document servitude occurs when one:
knowingly destroys, conceals, removes, confiscates, or possesses
any actual or purported passport or other immigration document,
or any other actual or purported government identification
document, of another person . . . to prevent or restrict or to attempt
to prevent or restrict, without lawful authority, the person’s liberty
to move or travel, in order to maintain the labor or services of that
person, when the person is or has been a victim of a severe form of
trafficking in persons.
18 U.S.C. § 1592(a).
7 The racketeering act of sex trafficking of Nicole was referred to on the
verdict sheet as Act 10A.
9
of value is given to or received by any person,” 18 U.S.C. § 1591(e)(3)—
must involve the exchange of monetary or financial benefits. We first
address the statutory text before turning to Raniere’s specific
challenges.
A. “Commercial Sex Act”
Congress enacted the statute at the center of this appeal, 18
U.S.C. § 1591, as part of the Trafficking Victims Protection Act of 2000
(“TVPA”), Pub. L. No. 106-386, 114 Stat. 1464 (2000). In passing the
TVPA, Congress’s purpose was “to combat trafficking in persons, a
contemporary manifestation of slavery whose victims are
predominantly women and children, to ensure just and effective
punishment of traffickers, and to protect their victims.” 22 U.S.C.
§ 7101(a).
In relevant part, Section 1591 provides for punishment of any
individual:
(a) Who[] knowingly—
(1) in or affecting interstate or foreign commerce, . . .
recruits, entices, harbors, transports, provides, obtains,
advertises, maintains, patronizes, or solicits by any means
a person; or
(2) benefits, financially or by receiving anything of value,
from participation in a venture which has engaged in an
act described in violation of paragraph (1),
10
[while also] knowing[] . . . that means of force, threats of force,
fraud, coercion . . . , or any combination of such means will be
used to cause the person to engage in a commercial sex act, . . . .
18 U.S.C. § 1591(a) (emphasis added).
Section 1591 goes on to define a “commercial sex act” as “any
sex act, on account of which anything of value is given to or received by
any person.” Id. § 1591(e)(3) (emphasis added). The statute does not
explicitly define the phrase “anything of value,” and the scope of that
phrase is the subject of the present appeal.
Raniere argues that Section 1591 “was designed to punish sexual
exploitation for economic profit.” Raniere’s Br. 23–24; see also
Raniere’s Supp. Br. 9. He therefore concludes that the phrase
“anything of value,” as it is used in the statute, must mean “economic
benefit[].” Raniere’s Br. at 24. We do not agree.
We begin our analysis “with the statutory text, exhausting ‘all
the textual and structural clues’ bearing on its meaning and construing
each word ‘in its context and in light of the terms surrounding it.’”
United States v. Bedi, 15 F.4th 222, 226 (2d Cir. 2021) (footnote omitted)
(first quoting Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018);
then quoting Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)). Where, as here, a
phrase is “not defined by statute, we normally construe it in accord
with its ordinary or natural meaning.” Smith v. United States, 508 U.S.
223, 228 (1993). If we find that a phrase is unambiguous and is
“coherent and consistent” with the statutory scheme, then “the inquiry
ceases.” Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton,
11
841 F.3d 133, 148 (2d Cir. 2016) (quoting Kingdomware Techs., Inc. v.
United States, 579 U.S. 162, 171 (2016)); see also Matal v. Tam, 137 S. Ct.
1744, 1756 (2017) (rejecting a proposed “resort to legislative history” as
unpersuasive because a court’s “inquiry into the meaning of the
statute's text ceases when ‘the statutory language is unambiguous and
the statutory scheme is coherent and consistent’”) (quoting Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 450, 456 (2002)).
We start with the prefix “any” in the phrase “anything of value.”
“Read naturally, the word ‘any’ has an expansive meaning, that is, one
or some indiscriminately of whatever kind.” Ali v. Fed. Bureau of
Prisons, 552 U.S. 214, 219 (2008) (cleaned up). 8 Our understanding of
“anything of value” is thus guided by the expansive meaning of “any.”
See United States v. Cook, 782 F.3d 983, 988 (8th Cir. 2015) (“The phrase
‘anything of value’ [in Section 1591(e)(3)] is extremely broad.”). In
addition, we observe that Congress’s definition of “commercial sex
act”—“any sex act, on account of which anything of value is given to
or received by any person,” 18 U.S.C. § 1591(e)(3) (emphases added)—
uses the word or prefix “any” three times. Congress’s repeated use of
the word “any” in its definition “commercial sex act” further supports
8 In United States v. Gonzales, 520 U.S. 1 (1997), the Supreme Court
“considered a provision [18 U.S.C. § 924(c)(1)] that imposed an additional sentence
for firearms used in federal drug trafficking crimes and provided that such
additional sentence shall not be concurrent with ‘any other term of imprisonment.’”
Ali, 552 U.S. at 219 (quoting Gonzales, 520 U.S. at 4). “Notwithstanding the
subsection's initial reference to federal drug trafficking crimes, [the Court] held that
the expansive word ‘any’ and the absence of restrictive language left ‘no basis in
the text for limiting’ the phrase ‘any other term of imprisonment’ to federal
sentences.” Id. (quoting Gonzales, 520 U.S. at 5).
12
an expansive understanding of the specific phrase at issue here,
“anything of value.”
We have previously had occasion, albeit in other contexts, to
consider the remainder of the phrase. We have clarified in those other
contexts that the phrase “thing of value” “is generally construed to
cover intangibles as well as tangibles.” United States v. Girard, 601 F.2d
69, 71 (2d Cir. 1979). In Girard, we observed that all of the following
are “things of value”: “amusement,” “[s]exual intercourse, or the
promise of sexual intercourse,” “a promise to reinstate an employee,”
“an agreement not to run in a primary election,” and “[t]he testimony
of a witness.” Id. (citations omitted). And in United States v. Maneri,
we held that the phrase “thing of value” includes intangibles,
specifically “the opportunity for a sexual encounter, in return for
distributing child pornography” in the context of the advisory
Sentencing Guidelines for 18 U.S.C. § 2252. 353 F.3d 165, 168 (2d Cir.
2003). Although the statutory phrase at issue here is “anything of
value” and not a misspelled version, “any thing of value,” our earlier
holdings on “thing of value” remain instructive. Indeed, adding the
expansive prefix “any” onto “thing” only underscores our
understanding that “anything of value” should be broadly understood
to include intangibles. A “thing of value” as it appears in Section 1591
may be intangible.
Finally, and consistent with our expansive understanding of the
phrase thus far, we interpret the word “value” to refer to “a subjective,
rather than objective, concept.” Cook, 782 F.3d at 988 (quoting United
States v. Petrovic, 701 F.3d 849, 858 (8th Cir. 2012)). Stated differently,
13
in the ordinary sense, we construe the word “value” to “focus . . . on
the value which the [recipient] subjectively attaches to what is sought
to be received.” Id. at 988–89 (quoting Petrovic, 701 F.3d at 858); see also
United States v. Williams, 705 F.2d 603, 623 (2d Cir. 1983) (concluding
that the phrase “anything of value,” as it is used in the bribery statute,
18 U.S.C. § 201, “has consistently been given a broad meaning” and
that the district court correctly construed the phrase “to focus on the
value that the defendants subjectively attached to the items received”).
This conforms with the dictionary definition of “value,” which
includes “relative worth, utility, or importance.” 3 Webster’s Third
New International Dictionary 2530 (1976).
Bearing in mind these textual clues, we conclude that, as it is
used in Section 1591, the phrase “anything of value” need not have a
monetary or financial component. Nothing in the statutory text
indicates such a requirement, and in fact, a natural reading of the
broad language used in Section 1591(e)(3) forecloses such a reading.
Put another way, for purposes of the statute, monetary worth is not
the sole measure of “value.” See United States v. Nilsen, 967 F.2d 539,
543 (11th Cir. 1992) (discussing the phrase “thing of value” as it is used
in 18 U.S.C. § 876). Accordingly, we hold that for sexual exploitation
to be actionable under Section 1591, it need not have been conducted—
as Raniere argues it must—for profit. 9
9 A number of district courts within our Circuit have reached similar
conclusions concerning Section 1591’s definition of “commercial sex act” in civil
cases brought pursuant to 18 U.S.C. § 1595, which provides for a civil cause of action
for violations of the TVPA. In these cases, courts have concluded that the statutory
14
B. Raniere’s Arguments
Turning to Raniere’s specific arguments on appeal as they
concern his sex trafficking convictions, we find none of them
persuasive.
a. Challenges to the Jury Instruction
Raniere first argues that the District Court erred in its
instructions to the jury on the sex trafficking counts.
“We review de novo a properly preserved challenge to a jury
instruction, reversing where the charge, viewed as a whole, either
failed to inform the jury adequately of the law or misled the jury about
the correct legal rule.” United States v. Capers, 20 F.4th 105, 116 (2d Cir.
2021) (quoting United States v. Binday, 804 F.3d 558, 581–82 (2d Cir.
2015)). 10 “In reviewing a jury instruction, we ‘examine not only the
specific language that the defendant challenges but also the
instructions as a whole to see if the entire charge delivered a correct
interpretation of the law.’” United States v. Al Kassar, 660 F.3d 108, 127
phrase “anything of value” encompasses promises to help a person with career
advancement. See, e.g., Eckhart v. Fox News Network, LLC, No. 20-CV-5593 (RA), 2021
WL 4124616, at *9 (S.D.N.Y. Sept. 9, 2021); Ardolf v. Weber, 332 F.R.D. 467, 478
(S.D.N.Y. 2019); Geiss v. Weinstein Co. Holdings LLC, 383 F. Supp. 3d 156, 168
(S.D.N.Y. 2019); Canosa v. Ziff, No. 18-CV-4115 (PAE), 2019 WL 498865, at *22 n.26
(S.D.N.Y. Jan. 28, 2019); Noble v. Weinstein, 335 F. Supp. 3d 504, 521 (S.D.N.Y. 2018).
10 We assume without deciding that Raniere preserved the relevant
challenges to the jury instructions below.
15
(2d Cir. 2011) (quoting United States v. Bala, 236 F.3d 87, 94–95 (2d Cir.
2000)).
The District Court instructed the jury on the “element” of sex
trafficking as follows:
The third element that the Government must prove is that the
Defendant knew that Nicole would be engaged in a commercial
sexual act. A commercial sexual act is any sex act of which anything
of value is given to or received by any person because of such sex act.
It is not required that the victim actually performed a
commercial sex act as long as the Government has proved that
the Defendant recruited, enticed, harbored, transported,
provided, obtained, maintained, patronized or solicited the
victim for purposes of engaging in commercial sex acts. A thing
“of value” need not involve a monetary exchange and need not have
any financial component. The phrase “any sex act” should be
given its plain meaning and may include any act performed
with another for sexual gratification.
Jury Charge at 99–100, United States v. Mack, No. 18-CR-204 (NGG)
(E.D.N.Y. June 18, 2019), ECF No. 728 (emphases added).
Raniere’s initial objection is to the first italicized sentence above.
In particular, he disputes the propriety of the District Court’s usage of
the phrase “because of” and argues that the sentence should have read:
“A ‘commercial sex act’ is any sex act on account of which anything of
value is given to or received by any person.” Defendant Keith
Raniere’s Requests to Charge at 64, 86, Mack, No. 18-CR-204 (June 7,
16
2019), ECF No. 692-1 (emphasis added). He argues that the phrase
“because of” “means only a ‘connection to’ or a proximate causational
relationship to,” whereas “on account of” “underscores a quid pro quo.”
Raniere’s Supp. Br. 18.
We find no error in the District Court’s use of the term “because
of.” Although the statute, 18 U.S.C. § 1591(e)(3), uses the phrase “on
account of,” we find no meaningful difference between that phrase
and “because of.” Raniere does not point to any authority supporting
his view of the difference in meaning between “because of” and “on
account of,” which we understand to be virtually indistinguishable.
Indeed, in a different context, the Supreme Court has noted that “[t]he
words ‘because of’ mean ‘by reason of: on account of.’” Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (quoting 1 Webster’s Third
New International Dictionary 194 (1966)). As a result, the District
Court’s use of “because of” neither failed to inform the jury adequately
of the law nor misled the jury about the correct legal rule.
Raniere next challenges the second italicized sentence in the
above jury instructions: “A thing ‘of value’ need not involve a
monetary exchange and need not have any financial component.” He
argues that a “commercial sex act” must involve the exchange of
monetary of financial benefits. For the reasons stated in Section II.A
of this opinion, ante, we reject his argument. As we have concluded,
the phrase “anything of value” need not have a monetary or financial
component, and the actionable sexual exploitation need not have been
conducted for profit. The jury was neither misinformed nor misled
17
about the law. 11 Accordingly, we find no error in the District Court’s
instruction.
b. Sufficiency-of-the-Evidence Challenge to the Sex
Trafficking Counts
Next, Raniere challenges the sufficiency of the evidence
presented against him at trial concerning his Section 1591 counts: sex
trafficking conspiracy, sex trafficking of Nicole, and attempted sex
trafficking of Jay.
When preserved, we review claims of insufficient evidence de
novo. Capers, 20 F.4th at 113. When hearing a sufficiency challenge on
appeal, we make a “limited inquiry tailored to ensure that a defendant
receives the minimum that due process requires: a ‘meaningful
opportunity to defend’ against the charge against him and a jury
finding of guilt ‘beyond a reasonable doubt.’” Musacchio v. United
States, 577 U.S. 237, 243 (2016) (quoting Jackson v. Virginia, 443 U.S. 307,
314–15 (1979)). “All that a defendant is entitled to on a sufficiency
challenge is for the court to make a ‘legal’ determination whether the
evidence was strong enough to reach a jury at all.” Id. at 244 (quoting
Jackson, 443 U.S. at 319).
11To the extent Raniere also contends that the second italicized sentence in
the above jury instructions is duplicative because the first italicized sentence’s
reference to “anything of value” already implied that the thing of value need not
involve a monetary exchange or have any financial component, we fail to see how
any potential redundancy misled the jury about the correct legal rule.
18
It is no surprise then that a defendant raising a sufficiency
challenge “face[s] a heavy burden.” Capers, 20 F.4th at 113 (quoting
United States v. Ho, 984 F.3d 191, 199 (2d Cir. 2020)). Indeed, “we must
sustain the jury’s verdict if, crediting every inference that could have
been drawn in the government’s favor and viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.” Id. (cleaned up). We “may enter a judgment of acquittal only
if the evidence that the defendant committed the crime alleged is
nonexistent or so meager that no reasonable jury could find guilt
beyond a reasonable doubt.” Id. (quoting United States v. Atilla, 966
F.3d 118, 128 (2d Cir. 2020)).
In conducting our review, “[w]e must analyze the evidence in
conjunction, not in isolation, and apply the sufficiency test to the
totality of the government’s case and not to each element, as each fact
may gain color from others.” Atilla, 966 F.3d at 128 (cleaned up). And
“[w]e must credit every inference that the jury might have drawn in
favor of the government, because the task of choosing among
competing, permissible inferences is for the jury, not for the reviewing
court.” Id. (cleaned up).
i. “Anything of Value”
Raniere first argues that the Government failed to provide
evidence that “anything of value” was received or given in connection
with a sex act. We disagree.
19
The Government did in fact present evidence at trial that DOS
“masters,” including Mack, obtained “things of value” in connection
with assigning their DOS “slaves” to engage in sexual acts with
Raniere. For example, the Government presented evidence that Mack
was able to maintain and strengthen her privileged position in the
DOS hierarchy because of the relationship between Raniere and one of
Mack’s “slaves,” Nicole. The Government also presented evidence
that Raniere set an expectation that DOS “masters” would receive
approximately 40 hours of “work” per week from their various
“slaves.” Gov. App’x 235 (testimony of Lauren Salzman, one of
Raniere’s co-conspirators who pleaded guilty to racketeering and
racketeering conspiracy). Moreover, those “masters” who were able
to recruit a sufficient number of “slaves” (and “slaves” of “slaves”)
would qualify for a “special position” and receive “special privileges”
from Raniere. Id. Furthermore, the Government presented evidence
that Raniere authorized certain payments to Mack for her work as
“head trainer” at the same time that Mack encouraged a “slave,” India,
to “complete [an] assignment” involving “tak[ing] all her clothes off,
while [Raniere was] clothed, pos[ing] in the most revealing way, and
hav[ing Raniere] take a picture of her.” Id. at 1269, 1271 (emails
between Raniere and Mack).
Raniere argues that “[m]aintaining a spot in the first line” of
DOS cannot constitute “anything of value” for purposes of Section
1591. Id. at 1047 (Government counsel’s trial summation). But as
discussed above, we reject the argument that only the exchange of
things with monetary value can suffice for purposes of the statutory
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definition of “commercial sex act.” A privileged position in an
organization may constitute intangible “value.” And indeed, here,
evidence presented at trial demonstrated that the privileged position
came with direct benefits, including free labor from the “slaves” who
were expected to perform “acts of care” for their “masters.”
The evidence regarding the giving or receiving of “anything of
value” submitted at trial was neither nonexistent nor meager. We
conclude that the evidence was strong enough to reach a jury and that
Raniere was afforded at least “the minimum that due process
requires.” Musacchio, 577 U.S. at 243. We therefore decline to disturb
Raniere’s convictions on these counts. The Government did not fail to
provide sufficient evidence that “anything of value” was received or
given in connection with a sex act.
ii. “On Account of”
Next, Raniere argues that even if things of value were given or
received, they were not given or received “on account of” a sexual act.
The Government presented evidence that on May 31, 2016, Raniere
blindfolded Nicole, ordered her to undress, and tied her to a table,
after which a third person performed oral sex on Nicole in Raniere’s
presence. Raniere argues that the Government failed to present
evidence that Mack—Nicole’s “master”—received anything of value
“on account of” the May 31, 2016 sexual act.
In another context, the Supreme Court has interpreted the
phrase “‘on account of’ to ”require[e] a causal connection between the
term that the phrase ‘on account of’ modifies and the factor specified
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in the statute . . . .” Rousey v. Jacoway, 544 U.S. 320, 326 (2005)
(interpreting 11 U.S.C. § 522(d)(10)(E)). Similarly, we interpret the
statutory language in Section 1591(e)(3) to require a causal connection
between the sexual act and the giving or receiving of anything of
value.
With that in mind, we conclude that Raniere’s sufficiency
challenge lacks merit. At trial, the Government offered evidence from
which a reasonable jury could have concluded that Mack’s receipt of
various things of value were causally connected to her assigning her
“slaves” to engage in sexual acts with Raniere, including the May 31,
2016 incident. This included testimony that Mack directed Nicole “[t]o
reach out to . . . Raniere,” which Nicole first did in April 2016 by email.
Gov. App’x 747–48 (testimony of Nicole). The Government also
offered testimony that Nicole understood Mack’s relationship with
Raniere to be the “most important relationship” to Mack, and that,
accordingly, Nicole understood that it was “important to [Nicole’s]
relationship with [Mack] to make [Raniere] happy” and that how
Nicole “related to [Raniere] . . . reflected on [Mack].” Id. at 764–65
(testimony of Nicole). Nicole understood that she needed to be “well
behaved” in front of Raniere. Id. at 765. And Nicole kept Mack
apprised of her relationship with Raniere, including by informing her
of the May 31, 2016 incident. Id. at 760. She further received
encouragement from Mack to “make [Raniere’s] life easier.” Id. at 764.
The Government’s evidence purporting to establish that Mack
received things of value “on account of” her assigning “slaves” to
engage in sexual acts with Raniere was neither nonexistent nor
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meager. Based on this evidence, a reasonable jury could conclude that
Mack’s privileged position in DOS was causally connected with her
“assignment” of Nicole to Raniere for sexual purposes. As with the
evidence that “anything of value” was received or given in connection
with a sex act, the evidence relevant to whether Mack received things
of value “on account of” her assigning “slaves” to engage in sexual
acts with Raniere was strong enough to reach a jury. Thus, we
conclude that Raniere had a meaningful opportunity to defend
himself.
iii. “Coercion”
Finally, Raniere argues that there was no evidence that the
sexual acts were “coerced” as required by 18 U.S.C. § 1591. The statute
defines “coercion” to include “threats of serious harm,” 18 U.S.C.
§ 1591(e)(2)(A), and the statute in turn defines “serious harm” to mean:
any harm, whether physical or nonphysical, including
psychological, financial, or reputational harm, that is
sufficiently serious, under all the surrounding
circumstances, to compel a reasonable person of the
same background and in the same circumstances to
perform or to continue performing commercial sexual
activity in order to avoid incurring that harm.
Id. § 1591(e)(5).
Nicole testified that she felt that she had “[n]o choice” in
complying with Mack’s instruction to “tell [Raniere] that [she] would
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do anything that he asked [her] to do.” Gov. App’x 756 (testimony of
Nicole). She further testified that she had submitted “collateral” to
Mack in the form of, inter alia, letters implicating her family members
in criminal activity, a sexually explicit video, and a letter about a
prominent former romantic partner that could “ruin [Nicole’s] career.”
Id. at 740. Nicole testified that she understood that breaking her
“commitment” to DOS and her “master” would mean that her
“collateral” would be released. Id. at 746.
Once again, Raniere has failed to persuade us that there is
insufficient evidence to sustain his convictions. Any rational trier of
fact could have found coercion beyond a reasonable doubt.
III. CONCLUSION
To summarize: We hold that to qualify as a “commercial sex act”
for purposes of 18 U.S.C. § 1591, the “[]thing of value” given or
received need not have a monetary or financial component. Thus, for
sexual exploitation to be actionable under Section 1591, it need not
have been conducted for profit.
For the foregoing reasons, and for the reasons explained in our
summary order also entered today, we AFFIRM the District Court’s
judgment of conviction entered on October 30, 2020, as it concerns the
sex trafficking conspiracy (Count 5), the sex trafficking of Nicole
(Count 6), the attempted sex trafficking of Jay (Count 7), and the
racketeering act of sex trafficking of Nicole (Act 10A).
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