The battle rages over whether alleged victims of Keith Alan Raniere will be able to come to his sentencing and not disclose their names to the public.
Raniere will know, of course, who the individuals are who claim he abused them. But, just to be certain, federal prosecutors are going to give him a list with the full names of each of them.
The victims will parade before the judge and tell their stories of how Raniere hurt them. And apparently, this will not be limited just to those who were named as victims in the trial against him.
Raniere was convicted on June 19 of sex trafficking, racketeering, racketeering conspiracy, identity theft, forced labor, wire fraud. He was also found to have committed all the predicate acts related to the racketeering charges – including possession of child porn and sexual exploitation of a minor.
Pandora’s box has been opened as prosecutors are soliciting various alleged victims to come forward and tell the judge how Raniere abused them.
Raniere filed a motion yesterday through his attorney, Paul DerOhannesian [pronounced Dear O’ Nxian] – who’s apparently writing all of Raniere’s filings these days instead of his lead trial attorney, Marc Agnifilo.
Ranier’s lawyers: Marc Agnifilo [l] and Paul DerOhanessian [r]
DerOhannesian wrote:
We represent Mr. Keith Raniere in the above matter. We write in further opposition to the Government’s Letter Motion to Designate Certain Information as Victim Discovery Material (Dkt. No. 820) and in response to Your Honor’s Text Order of January 7, 2020.
Raniere previously opposed the Government’s pre-trial request seeking similar relief….. In addition to the arguments raised therein and incorporated in this filing (Dkt. No. 595), Raniere respectfully submits the following:
Sentencing letters and the identity of the writers are generally deemed public records. See United States v. Kravetz, 706 F.3d 47, 56-59 (1st Cir. 2013) (“Having concluded that the common law right of access attaches to sentencing memoranda, it is but a small step to also conclude that the right also extends to sentencing letters submitted in connection with those memoranda.”).
This is so because they are being relied upon by the court in determining an appropriate sentence. See id. (“Thus, like substantive legal memoranda submitted to the court by parties to aid in adjudication of the matter of a defendant’s innocence or guilt, sentencing memoranda are meant to impact the court’s disposition of substantive rights.”).
Sealing is only appropriate “if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch v. Pyramid Co., 435 F.3d 110, 120 (2d Cir. 2006).
The Government “bears the burden of demonstrating that sealing is warranted.” United States v. Wright, 2012 U.S. Dist. LEXIS 99981, at *6 (E.D.N.Y. July 16, 2010).
The Government asserts that use of a first name or a pseudonym is justified because “a significant number of victims [] would like to be heard at the defendants’ upcoming sentencings but are concerned for their privacy.” (Dkt. No. 820, p. 2).
Although the Government has not identified these individuals, the prosecution is seemingly extending its request far beyond the operating Indictment’s named Jane and John Does. (Id. at 3). In so doing, the prosecution is certifying to this Court and the public who is a “victim” which necessarily places the Government in the position of vouching for the credibility of an individual who seeks to influence Raniere’s punishment.
The prosecution’s anointing of “victim” status to an individual connotes a predetermination that an individual has in fact been wronged. Such a predetermination would also prejudice the defendant at his sentencing. The defendant disputes the “victimhood” of individuals who were not named as victims in the Second Superseding Indictment and therefore have not withstood any standard of review.
The Government’s motion also fails to provide this Court with the specific findings necessary to justify its request and instead speaks in generalities. No witnesses are identified. No witness-specific concerns are raised. Instead, the Government asserts in a conclusory fashion that “certain victims” suffered “degrading and humiliating treatment” and that “many victims are concerned about being identified publicly in light of the trial evidence regarding retaliation.” (Dkt. No. 820, pp. 2-3) (emphasis added).
However, the prosecution does not identify any of the “trial evidence regarding retaliation” or assert that Raniere, who has been confined since March 2018 with very little contact beyond his attorneys, participated in or condoned this so-called retaliation.
Indeed, the Government has made no showing that Raniere has harassed, humiliated, or annoyed any purported victim in “retaliation” for bringing evidence against him.1 The sealing of otherwise public material requires more than the Government’s conclusory assertions that unidentified individuals face unnamed retaliation or speculation that future victims will fear reporting.
Accordingly, Raniere respectfully requests that this Court deny the Government’s motion as the prosecution has not met its burden of demonstrating “‘persuasive evidence of serious risk’ to a compelling interest” justifying sealing the information it seeks to utilize to presumably enhance Raniere’s sentence. United States v. Zazi, 2010 U.S. Dist. LEXIS 67595 at *13 (E.D.N.Y. June 28, 2010) (quoting Ayala v. Speckard, 131 F.3d 62, 70 (2d Cir. 1997)).
At the very least, prior to granting the motion, the Government should be required to identify the witness it claims
is a “victim” and explain why that specific individual is deserving of special consideration.
Thank you for Your Honor’s consideration in this matter.
Very truly yours,
DerOhannesian & DerOhannesian
Paul DerOhannesian II
Danielle R. Smith
Footnote: Raniere raised this argument in opposition to the Government’s pre-trial motion seeking similar relief.
(Dkt. No. 595, pp. 5-10) (distinguishing United States v. Marcus, 2007 WL 330388 (E.D.N.Y. January 31, 2007)). If
the prosecution had any tangible evidence that Raniere engaged in retaliatory conduct or witness tampering, no doubt
it would have included such evidence in its current motion.
************
Tanya Hajjar
The government replied through AUSA Tanya Hajjar as follows:
The government respectfully submits this letter in brief reply to the defendant Keith Raniere’s letter objecting to the government’s motion to limit disclosure of victim identifying information at sentencing in the above-captioned case.
The defendant’s letter misapprehends the law and his argument is meritless.
As this Court has already held, the Second Circuit has identified “two central interests defendants have in the public airing of identifying information about witnesses”:
(1) obtaining information which may be helpful in investigating the witness out of court or in cross-examination; and
(2) eliciting information that may be important to the jury’s deliberations as to the witness’s credibility or knowledgeability. Mem. & Order, ECF
Docket Entry 622 at 30-31 (citing United States v. Marti, 421 F.2d 1263, 1266 (2d Cir 1970)).
Once the government has provided a valid reason to limit disclosure of identifying information in open court, the defendant must demonstrate a “particularized need” for the information, which the Court weighs against the harm to the witness. Id. (quoting United States v. Marcus, No. 05-CR-457 (ARR), 2007 WL 330388, at *1 (E.D.N.Y. Jan. 31, 2007)).
The Court has already found that forcing victims in this case to publicly identify themselves could cause embarrassment, harassment, and humiliation, and does not serve the legitimate purposes identified by the Second Circuit.
The defendant does not articulate any “particularized need” for the disclosure of victim identity information in open
court. He does not because he cannot. The defendant will be provided with a list of the victims’ true identities pursuant to the protective order entered in this case, and he has not offered any explanation as to what harm he may suffer if the victims were allowed to proceed at sentencing by providing their Jane or John Doe number, or their first name only.
Raniere’s claim that he would be prejudiced at sentencing because a victim’s use of a Jane or John Doe number would “connote[] a predetermination that an individual has in fact been wronged,” Ltr. at 1-2, is entirely unfounded, particularly since it is this Court, not a jury, that will assess victim statements.
For the foregoing reasons, the government respectfully requests that the Court grant its motion.
Respectfully submitted,
RICHARD P. DONOGHUE
United States Attorney
By: /s/ Tanya Hajjar
Tanya Hajjar
Mark J. Lesko
Karin Orenstein
Assistant U.S. Attorneys
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Judge Nicholas G. Garaufis
My best guess is that the judge will side with the prosecution and allow alleged victims to use Jane or John Doe or their first names only.
I expect more than 100 women and a few men will come forward and tell their tale of pain and harm imposed on them by Keith Raniere.
It will be effective and impressive and there will be a lot of genuine tears.
However, if the judge sides with Raniere, then I would expect that, rather than more than 100 alleged victims lining up, there will be less than a dozen.
While I feel that most of the alleged victims are truly victims in this case and that if all of his true victims were to appear there would probably be close to 1000 – I still feel a sense of due process being violated.
When people who were not named in the charges that were adjudicated in the trial – and without the benefit of being cross-examined – can simply come forward and accuse a defendant in open court, it seems that something is missing from true adherence to fairness.
It seems to negate the very purpose of a trial if anyone can come in – and influence the sentence of someone convicted of specific crimes. That bothers me more than whether or not they use their full names.
I mean, can someone who was abused in some other way by Raniere that had nothing to do with the crimes he was convicted of come forward and accuse him at his sentencing?
How can that be fair? He has no chance to cross-examine.
And if you say the judge will not be influenced or that the judge understands that this has not been tested at trial, I say then what is the point of having them come before the judge – if he won’t be influenced?
I don’t think it is due process to have a free-for-all – for any defendant convicted of specific crimes – to have all manner of people come forward – without any standard of evidence – and just come forward to try to influence the sentencing.
I fully support those who were named as victims in the trial – and whose accusations withstood the rules of evidence and cross-examination to speak at sentencing. But inviting everyone who claims they were a victim without any standard of proof – other than the prosecution’s say so – — to just come forward and accuse a defendant – seems unjust.
And unlike Raniere, I want justice for all – even him.
