Ongoing Battle for Camera Card Access in the Raniere Case
The U.S. Attorney for the Eastern District of N.Y. continues to resist Keith Raniere’s efforts to obtain a forensic copy of the camera card used to convict him on predicate racketeering acts of possession of child pornography and sexual exploitation of a minor.
In a January 9th letter to U.S. District Judge Nicholas G. Garaufis, Assistant U.S. Attorney Tanya Hajjar maintained the office’s stand against the card’s release.
Raniere’s conviction in June 2019 resulted from a six-week trial in the Eastern District of New York. A Brooklyn jury found him guilty on all charges – including racketeering conspiracy, forced labor, and sex trafficking. In the wake of his conviction and sentencing to 120 years in prison, Raniere has made multiple attempts to secure a new trial.
His main hope lies in the allegation that the FBI tampered with a hard drive and camera card seized from his “Executive Library” the day after his arrest in March 2018.
The present issue is over a camera card that FBI agents found inside Raniere’s camera.
While the hard drive contained 22 images of Camila, who, according to metadata on the image files, was 15 at the time the pictures were taken, it mainly proved that Raniere possessed the images. The camera card, which did not contain any contraband pictures, was used by the prosecution to help prove Raniere took the photos, thereby supporting the sexual exploitation charges.
A photo of a Lexar camera card similar to the one seized from the Executive Library of Keith Raniere.
The Role of Digital Evidence
The prosecution established this by showing that some photos on the camera were the same as those on the hard drive. This evidence helped to establish that Raniere took the photos and was, therefore, guilty of the sexual exploitation of a minor.
While the FBI made two Forensic Tool Kit (FTK) reports, an analysis of the data found on the device, one of which they gave to Raniere’s defense attorneys, and another that they made during the trial, the government has never turned over a complete forensic copy of the camera card, which is an exact copy of all the data on that device.
Alleged Violation of FBI Protocol
The two FTK reports alone raised suspicions, since making two reports from an original digital device violated FBI protocol.
More troubling is that while using the same FTK tools, more than 30 new files were listed in the second FTK report.
The appearance of these new files made the evidence of Raniere taking the photos of Camila much stronger for the prosecution.
FBI Protocol Breach
What further complicates this knotty evidence issue is that the FBI did not follow protocol in dealing with the camera card, which is digital evidence.
Firstly, an FBI special agent took the camera card out of the FBI Computer Analysis Response Team (CART) location, which is against the agency’s rules for the handling of digital evidence – and then reproduced pictures on the camera card, which is also a violation of the agency’s protocol for handling digital evidence.
The FBI evidence handling protocol, established to protect the agency and defendants from allegations of tampering, forbids an FBI agent from accessing original digital evidence such as the camera card seized in Raniere’s Executive Library. Per the applicable protocol, a forensic examiner from CART must, before the examination of digital evidence, make a forensic copy of it.
Once the forensic copy is made, an FBI agent can then review just the copy.
A write blocker must be used on the copy, to avoid tampering even with the copy. But should an agent tamper with the copy, the original is still preserved, and evidence of the tampering will be clear and obvious.
That is not what the FBI did here.
Unauthorized FBI Access Raises Questions About Camera Card Integrity
On September 19, 2018, while the camera card was in the FBI’s possession, someone at the FBI accessed the original camera card and made changes to the digital evidence. Those changes are unknown. It may have been as simple as merely looking at the photos – or copying the photos to adding photos or changing meta data.
In any case, this access of the original camera card is against the FBI’s evidence handling procedures. The best way to detect what changes were made on September 19, 2019 is for independent forensic experts to have access to the complete forensic copy of the camera card, which the government refuses to turn over.
FBI Hands Over Images Without Acknowledging Camera Card
Less than a week after the FBI improperly accessed the camera card, the government turned over the images they took from the camera card with this description: “Photographs from Canon Camera seized from search of 8 Hale Drive—Item 1B15.”
They did not mention the camera card and apparently claimed they were photos from the camera itself, which they were not.
The photographs the FBI turned over to the defense from the camera card contained sexually explicit photos of Raniere with a woman and two other adult women seen alone in separate photos.
Four photos on camera card matched images on the hard drive.
By the rules of criminal trial procedure concerning discovery, which the judge is supposed to enforce, the government should have given the defense not the photographs, but the complete forensic copy (or clone) of the digital camera card.
Of note here is that unlike the hard drive, the government never claimed the camera card had the contraband photos of Camila so there would be no reason not to turn over the camera card clone.
Technicalities May Rule for the Government
The government may permanently withhold the camera card on a technicality.
The defense knew at the trial that the FBI did something inappropriate by accessing the camera card while it was in the agency’s possession.
AUSA Hajjar, in her letter to the judge, writes, “Raniere was well aware at the time of trial that law enforcement agents had accessed the camera card of the Canon EOS 20D camera without a write blocker on September 19, 2018, prior to the discovery of child pornography on the Western Digital hard drive. Indeed, Raniere’s trial counsel cross-examined Senior Forensic Examiner (Brian) Booth regarding that (improper) access:
COUNSEL: When we say ‘changed,’ it was changed while it was in the possession of the FBI?
SFE BOOTH: If I’m taking the dates on when we received it, it would appear so.”
One of Raniere’s trial attorneys, Paul Der Ohannesian, asked FBI Senior Forensic Examiner Booth whether he knew the identity of the FBI agent who improperly accessed the camera card. Booth testified he did not.
Raniere’s attorney Paul Der Ohannesian
Raniere’s counsel did not press this matter further. In fact, they had an excellent chance to pursue the matter by asking FBI Special Agent Christopher Mills, who was one of numerous agents to handle (or mishandle) the camera card that bounced about from agent to agent like a hot potato and was finally turned over to the forensic team unsealed, again against FBI evidence handling procedures.
Mills testified after Booth and the defense did not ask him if he knew who accessed the camera card.
FBI Special Agent Mills
As Hajjar points out, Raniere’s trial counsel made no effort to present any argument, “in summation or otherwise,” that the FBI tampered with the child pornography evidence found on the hard drive.
Raniere’s lead defense attorney Marc Agnifilo.
Another of Raniere’s attorney, Marc Agnifilo, who viewed the contraband hard drive photos at the government’s offices, apparently believed the 22 images, alleged to be of Camila at age 15, were indeed of Camila at age 15.
He undoubtedly spoke with Raniere, who was in custody at the Brooklyn MDC at the time, and the defense did not object at the time.
Post Conviction Attack on Conviction
It was only after the conviction that Raniere launched his effort to secure a new trial based on his claim that the FBI tampered with the evidence.
Hajjar rightly argues that it was not newly discovered (i.e. post-trial) evidence, that the defense could not have known about before the trial – a requirement for a Rule 33 motion for a new trial.
Hajjar wrote, “Raniere’s claims that such evidence was ‘inaccessible to the defense’ and ‘could not have been discovered with due diligence before or during trial’… – arguing for securing a new trial are entirely meritless, and his motion to compel should be denied.”
Why Not Release the Camera Card?
Still, it is curious, perhaps only to those who want scrupulously honest checks and balances on law enforcement, that the government won’t turn over a complete forensic copy of Raniere’s camera card to prove it was not tampered with.
The camera card is not evidence of the possession of child porn, since there was no child porn on it.
Raniere’s main claim is the FBI planted the child porn on the hard drive.
Raniere’s secondary claim is the FBI tampered with the camera card by adding more files that matched the hard drive, making a stronger connection between the camera card and the hard drive with the contraband.
The Photos of Camila
Keith Raniere
Raniere has not denied he took photos of Camila.
Camila has declared under oath that he took photos of her when she was 15 and that the photos used in evidence at trial are of her when she was 15.
Why Should We Care?
The public’s interest in this matter extends beyond Raniere’s innocence or guilt. The public interest is to ensure that the FBI does not tamper with evidence, even if they think they “know” a defendant is guilty.
This statement above does not mean Frank Report thinks the FBI tampered with evidence. There are arguments on both sides of this matter, and experts have given their opinions arguing for and against evidence of tampering, their opinions aligning precisely with the side they are on – the government or the defense.
But the use of a technicality to block access to a camera card that the government improperly withheld from Raniere before the trial, which underwent an authorized breach by FBI agents, poor evidence handling and a curious change in the number of supposed images on it, ought to be turned over to the defense based on integrity and fair play – none of which Raniere has ever had any claim to doing any time in his life.
However, we hold the government to a higher standard than a convicted criminal.
Release the Camera Card
Yes, Keith Raniere is where he belongs inside the gates of USP Tucson, where he will reside for the next 35,191 days, unless he escapes sooner, is pardoned, dies, or proves tampering and secures a new trial and wins it.
The release of the camera card would answer, once and for all, several questions: Why did the FBI improperly access the camera card, what did they change, and why did they withhold it?
If they did nothing wrong, why are they withholding it now?
The townhouse at 8 Hale Drive in Halfmoon, New York was the target of an FBI raid on March 27, 2018.
On this bed lay the subjects of many of his nude photos.
If Raniere got a new trial, it is likely that Camila would testify, and he would be convicted again.
However, if the FBI tampered with any part of the evidence, and to date we lack solid evidence that they did, it would be a solid gain to learn this, for if they tampered with a high-profile defendant like Raniere, they could do it again with any defendant.
