Feb 15, 2016

NXIVM hacking case to be tossed

Charges against three with ties to group to be dismissed in 6 months
Robert Gavin
Albany Times Union
February 12, 2016

Albany County Court

A special prosecutor this week agreed to dismiss criminal charges against three people with past ties to the NXIVM personal growth corporation of illegally accessing the secretive group's computer servers.

An Albany County judge on Wednesday granted adjournments in contemplation of dismissal (ACODs) for Barbara J. Bouchey, a former high-ranking member of NXIVM; Joseph O'Hara, 67, a one-time NXIVM legal adviser and outspoken critic of NXIVM; and Toni Foley Natalie, 57, a former associate and girlfriend of NXIVM founder Keith Raniere,

That means their cases will all be dismissed in six months if they avoid further legal trouble.

"I feel like I have been David in the battle against Goliath," Bouchey, 56, told the Times Union. "It is fantastic to be finally vindicated and it is victorious. I am delighted to be able to move on with my life, put this behind me, and go back to spending my time on positive, creative endeavors."

The ACODs were accepted as a pre-trial hearing was set to begin Wednesday afternoon before Judge Stephen Herrick. Instead, the judge, attorneys for the defendants and Holly Trexler, the special prosecutor, met in the judge's chambers and emerged with an agreement to resolve the case. O'Hara and Bouchey were in court; Natalie was not present.

Trexler's decision to seek to dismiss the charges came as attorneys for the defendants were set to challenge whether NXIVM's computer servers actually were located in Albany County at the time of the alleged breaches. The defendants asserted they never illegally accessed NXIVM's computer network, and their attorneys said they had computer experts ready to argue NXIVM claimed its computer servers were in Albany only after the Saratoga County district attorney's office declined to prosecute the case. The location of the servers was critical in establishing jurisdiction in the criminal case.

The defendants each faced felony charges carrying potential sentences of 1 1/3 to 4 years in prison if convicted. Trexler, who previously declined to discuss the case with the Times Union, agreed to reduce the charges to attempted criminal trespassing, a misdemeanor, for each defendant, but under an agreement that those charges will then be dismissed in six months.

"This matter came in today after much discussion amongst the complainant's representatives, defense counsel and the investigators involved. While the investigators and I believe that the computer hacking could be proven beyond a reasonable doubt, we feel that this is a fair and just result," Trexler told the Times Union.

In October, the Times Union reported that the criminal charges were filed after intense pressure was put on a State Police investigator by NXIVM's private attorneys.

Court records indicated that the attorneys for the NXIVM corporation were heavily involved in the State Police investigation and that State Police Investigator Rodger Kirsopp had contact dozens of times with NXIVM's attorneys, who pressured him to file criminal charges. The records also showed NXIVM officials, and their attorneys, provided much of the evidence used by Kirsopp to build the unusual criminal case against the four defendants, all of whom were considered adversaries of NXIVM.

By the time the two-year investigation ended in March 2014, three attorneys from the Albany law firm of O'Connell & Aronowitz, whose attorneys have represented NXIVM for years, contacted the investigator more than 30 times, including attending interviews he conducted with NXIVM employees and delivering documents and other evidence, including computer records, to the investigator's State Police barracks in Clifton Park.

Paul Edwards, the attorney for O'Hara, called Wednesday's outcome the "appropriate result."

William J. Dreyer, who represents Natalie, said: "This was a long, contested case and it was not over yet and it would not be over for many, many more months because we would have to get through a jurisdiction hearing and also a trial ... as far as I'm concerned, this was a just result."

In a motion to dismiss the case, Bouchey accused Kirsopp, the lead investigator, who was in court Wednesday, of distorting facts to build the criminal case against her. And she accused NXIVM and two of its longtime backers — Clare and Sarah Bronfman, heiresses to the Seagram's liquor fortune — of using the criminal case and other court proceedings to punish Bouchey after she left NXIVM in 2009.

Bouchey alleged that NXIVM kept "an enemy's list and over the years have attacked certain individuals who have chosen to leave their organization."

In a statement Wednesday, Bouchey's attorney, Pamela D. Hayes, said: "Barbara Bouchey has been courageous through all of this. It would be hard for the average citizen to fathom what she has been put through. It is extremely difficult to go through the court system, especially when you are not guilty. I am glad she will be able to move on with her life unfettered."

The case included the arrest of a fourth defendant, ex-Saratoga County blogger John Tighe, who in November 2014 pleaded guilty to felony computer trespassing at a time when he was facing unrelated federal child pornography charges. Tighe, at the time, admitted that in November 2010 he intentionally accessed the computer network of NXIVM at 80 State St. in Albany. He admitted he used the user name and password of Mary Jane Pino, a former NXIVM coach, without her permission, to access a list of NXIVM participants and clients and their contact information.

But the remaining defendants, in court filings, were set to argue that their clients had permission to use the computer accounts of Pino and other NXIVM members.

Tighe is serving 5 years and 10 months in federal prison for possession of 400 videos and 40,000 images of child pornography State Police discovered when they seized his computer as part of the computer hacking case. O'Hara, meanwhile, is serving three years in federal prison for an unrelated bribery conviction in Texas.

rgavin@timesunion.com • 518-434-2403 • @RobertGavinTU

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