Kieth Raniere filed a Petition for Writ of Mandamus with the US Court of Appeals for the 2nd Circuit.
Through his attorney, Joseph Tully, Raniere asks the 2nd Circuit to disqualify Judge Garaufis from deciding on Raniere’s Rule 33 motion for a new trial.
Or, if the 2nd Circuit declines to disqualify Judge Garaufis, then order him to decide on his recusal before he considers the Rule 33 motion.
Keith Raniere is seeking a new trial
Raniere’s Rule 33 motion claims he has evidence that the FBI tampered with evidence.
Tully wrote, “the Court should issue a writ of mandamus directing the trial judge to recuse himself from the case and
for the case to be assigned to a new judge. In the alternative, the Court should issue a denial that nonetheless clarifies that motions for recusal should be ruled upon as a threshold matter before substantive issues are decided.”
A federal judge is expected to disqualify himself in any proceeding in which his impartiality might be reasonably questioned.
Tully argues Judge Garaufis “displayed personal distaste” for Raniere, his lawyers and Clare Bronfman to “an alarming degree” and should be ordered to decide about recusing himself before considering the Rule 33.
Raniere alleges the FBI manufactured and planted child pornography on a computer hard drive. The government then falsified, fabricated, and manipulated key evidence, including FBI personnel testimony, to convict Raniere of possession of child pornography and sexual exploitation of a child.
In May, Raniere made two motions before Judge Garaufis – to disqualify himself and his Rule 33 motion. Raniere had no choice but to file both simultaneously since the deadline for filing a Rule 33 motion had arrived.
Judge Garaufis has the discretion to rule on the recusal or the Rule 33 motion first.
Tully wrote, “If this Court does not grant this petition for a writ of mandamus, Raniere will be forced to wait until such time Judge Garaufis rules to discover in which order he rules on the motions. Due to the conflict in case precedent, it is a distinct possibility that the Rule 33 motion can be unfairly swept under the rug before the Recusal issues can be satisfied to comport with basic and fundamental fairness as well as
Constitutional Due Process.
“This would result in not only prejudice but also a loss of judicial economy as the tangled mess of having an unlawful, improper, and unfair ruling on a Rule 33 motion for a new trial prior to hearing the Recusal motion would take much time and attention to address ex post facto. The demonstrable evidence of FBI perjury and evidence tampering in Mr. Raniere’s trial is provable to a scientific certainty, a standard higher than even proof beyond a reasonable doubt, and Mr. Raniere only seeks to have his day in court to establish such.”
Joseph Tully
Returning to the subject of recusal, Tully writes, “While good judges do their best to rule on motions for disqualifications dispassionately, it is doubtful that a judge who actually is biased is likely to admit it. So they will continue to preside over proceedings in which their original bias against one party is now exacerbated by the fact that the party has requested recusal and publicly accused them.”
Will the 2nd Circuit disqualify Judge Garaufis, order him to decide on recusal first, or allow him to decide how he wants to handle the matter himself?
Stay tuned….
Tully wrote about Judge Garaufis’ alleged bias in this filing and in his earlier recusal motion.
Here is what Tully wrote in the Dec. 9, Writ of Mandamus
A. The Jury Trial
During the jury trial, Judge Garaufis repeatedly acted in ways
that would lead a rational person to understand that he has a deep-seated bias against Petitioner, tipping the scale of the trial in favor of the government.
For example, Judge Garaufis completely cut off cross examination of the government’s star witness, Lauren Salzman, before inviting further direct examination from the government. His order to cease cross-examination was absolutely damaging to Mr. Raniere’s case: though Ms. Salzman was called as a government witness, she also had
valuable exculpatory evidence that Mr. Raniere should have been allowed to elicit.
Additionally, the Court’s attitude toward Mr. Raniere’s counsel during trial was demeaning and bullying, communicating to the jury that the Judge Garaufis had made up his mind about the case
B. The Restitution Hearing
Judge Garaufis’ behavior at the restitution hearing was as
aggressive as it was bizarre. As reported by news media, at one point in the proceedings, Judge Garaufis spent thirty minutes in a strange and aggressive staring contest with Mr. Raniere’s counsel.
This incredibly odd interaction came after a very tense series of exchanges. The restitution hearing was the first appearance of Mr. Raniere’s counsel Jeffrey Lichtman and Marc Fernich. At the restitution hearing, it was established that co-defendant Clare Bronfman was paying for Mr. Raniere’s attorney fees, that Mr. Lichtman and Mr. Fernich were new to the case, and that they had spoken to Mr. Raniere on the phone once, for about one hour, to briefly summarize the government’s stance on restitution but had been unable to see him before the hearing to go over the government’s submissions.
Over several exchanges, Judge Garaufis berated Mr. Fernich for having requested a delay in proceedings by letter to give him time to come to Court reasonably prepared—whereas Judge Garaufis, for reasons clear only to him, believed counsel should have specifically stated that more time was needed to visit the client.
At a certain point, Judge Garaufis then began berating Mr.
Fernich for asking for a one-hour delay in the proceedings so that he could attend the funeral and shiva of a close friend and colleague.
C. The Sentencing Hearing
Judge Garaufis’ personal animosity toward Mr. Raniere was also displayed in his sentencing of his co-defendants.
Judge Garaufis imposed on Clare Bronfman a sentence of 81 months: three times the maximum sentencing range provided by the United States Sentencing Guidelines, and two years longer than even what the prosecution themselves had requested. The reason for this extreme departure, as
stated by Judge Garaufis himself, was the fact that Ms. Bronfman remained close with Mr. Raniere. Judge Garaufis wrote, “Ms. Bronfman’s allegiance to Raniere shines through again and again. She has paid his legal fees and, to this day, maintains that he ‘greatly changed her life for the better.’”
Judge Garaufis sentenced Ms. Bronfman not based on the crimes she pled guilty to, but based on his personal animosity toward Mr. Raniere.
