Keith Raniere’s attorney moved the U.S. Court of Appeals for the 2nd Circuit to stay his appeal. The motion, if granted, suspends the appeal and clears the way for Raniere to request a new trial from Judge Nicholas G. Garaufis.
Attorney Joseph Tully told the Appeals Court that the FBI tampered with evidence.
Tully writes, “computer images and photographs used by the government… were… altered when in FBI custody.”
He alleges the FBI acted “with malfeasance,” “destroying, constructing, and altering” the images.
Keith Raniere’s attorney, Joseph M. Tully.
An appeal takes priority over a motion that the district court judge decides. A motion for a new trial requires identifying significant new evidence.
“This newly discovered evidence would have resulted in a different result at trial,” Tully wrote.
Tully seeks to stay the appeal until the trial judge hears the new evidence in a Rule 33 motion.
Previewing what will come in his motion, Tully provides some evidence to the Appeals Court.
His exhibits include three digital forensic reports.
The main report comes from former FBI Special Agent Dr. Richard Kiper, Ph.D.
Raniere is appealing his 2019 conviction for
Sex trafficking
Sex trafficking conspiracy
Forced labor conspiracy
Racketeering conspiracy
Wire fraud conspiracy
Attempted sex trafficking.
Racketeering
In October 2020, Raniere received a 120-year prison sentence.
Next week, Raniere’s oral arguments are on the Appeal’s Court schedule.
The new evidence focuses on images of alleged child porn and sexual exploitation of a child. The U.S. DOJ for the Eastern District of New York used these images as part of racketeering charges against Raniere.
Camila by MK10ART.
A Mexican woman, Camila, now 32, identified only by her first name in court, is the subject of these photos. The FBI alleges Camia’s images were on a hard drive seized from Raniere’s library.
Tully told the Appeals Court that the photos were “altered.”
The purpose of the alterations was to make it appear that Raniere took photographs of Camila in 2005. Yet, the false dating makes the photographs contraband, Tully said. In 2005, Camila was 15.
Search Is Suspicious?
FBI agents raided a townhouse used by Raniere at 8 Hale Drive in Halfmoon, New York, on March 27, 2018. The raid occurred one day after Raniere’s arrest by the FBI.
The agents seized a hard drive that they later “discovered” contained the photos of Camila.
The FBI seized the hard drive.
Tully alleges the search is suspicious.
During the raid, “FBI agents sidestepped several rooms within the residence with evidentiary items, went upstairs, through more rooms, straight to the upstairs study, where the very first two evidentiary items they collected just happened to be the Western Digital hard disc drive at issue… and a Canon digital camera with its compact flash card.,” Tully wrote.
Receipt of the items seized by the FBI at 8 Hale Dr. shows that the Canon EOS 20D camera was the first item listed. “Accessories” are mentioned, but the camera card is not explicitly named.
“These two evidentiary items also just happened to be the only two evidentiary items that contained alleged contraband, which just happened to be ‘discovered’ more than ten months later…” he added.
Canon Camera
EOS 20D
This Lexar camera card is similar to one seized at the executive library of Keith Raniere.
FBI Special Agent Mills seized the camera, the camera card, and the hard drive.
Questions About the FBI’s Evidence Handling
Tully said FBI agents did not place the camera and camera card in the forensics lab until 11 months later.
He points the finger at FBI Special Agents Michael Lever and Maegan Rees.
Special Agent Lever is the lead agent on the case. He did not testify at the trial.
FBI Special Agent Michael Lever [by the car door.]
Rees testified. She brought the Camila photos to the jury in a red binder. She also portrayed Camila in an extensive reading of Camila’s texts with Raniere.
Tully wrote that Rees and Lever “broke protocol” by removing the camera and C.F. card from Evidence Control. Tully alleges they did this twice, for a total of 24 days.
The FBI’s Operational Technology Division must process all digital evidence. But, according to retired FBI agent Kiper, agents are “prohibited” from examining digital evidence until the Operational Tech Division processes it.
As a result, Kiper asked why agents held on to the camera card for months when they could not examine it?
Another issue is the belated discovery of contraband. The discovery of Camila’s photos occurred ten months after the FBI seized the hard drive.
Tully argues that the FBI’s efforts show “the hallmarks of fraud.”
Dates Allegedly Faked
Dr. Kiper’s report challenges the FBI’s claim that the computer autogenerated folder names when Raniere allegedly downloaded the images.
The FBI said that the folder date names “roughly” correspond to the dates of the EXIF data. EXIF data, if unaltered, shows the creation date of a photo.
The “alleged contraband photographs were manually altered to look autogenerated,” Tully alleged.
FBI Narrative
FBI Forensic Examiner Brian Booth testified that the folder names had autogenerated dates. He testified that Raniere downloaded the images from the camera to the camera card. Then he downloaded it from the camera card to a computer. The computer then generated names that are the same as the download date, hour, minute, and second.
FBI Examiner Booth testified that the dates “roughly” matched the EXIF data. The date on the folder names and the EXIF data shows 2005 as the date of creation of the Camila photos.
Faked?
Kiper believes that the FBI faked the photos. He suggests that the FBI blundered by downloading images in reverse order. He said the timing of the downloads is faster than a human could download them.
Other so-called auto-generated dates defy the laws of nature. For instance, some photos are older than their parent backup folders.
Kiper said this suggests manual alteration. He says the purpose was to prove that the alleged contraband was authentic.
Dr. Richard Kiper suggests the FBI altered dates and folder names on the hard drive.
He said this includes folders containing Camila’s images.
The allegations continue.
Tully gives an example of FBI evidence blundering in his motion for a stay. The government alleged the camera card proves Raniere took the photos that were found on the hard drive. If true, the camera card images should match the hard drive.
They don’t, Tully says.
“The thumbnails of a brunette impossibly became thumbnails of a blonde,” Tully explains.
Frank Report can reveal the identities of the crossed-up photos.
The brunette is Daniela, the sister of Camila, the subject of the contraband photos.
Daniela – artist sketch
The blonde is Angel, one of Ranieres’ longtime girlfriends.
Angel
Hard Drive:
On the hard drive, Daniela appears in images #93, 94, 96, and 97. Viewing the file shows her thumbnail and her complete image.
Angel’s thumbnail and full image on the hard drive are images #180-183.
Hard drive images #93, 94, 96, 97
Hard drive images #180-183
On the camera card, Daniela’s images again are #93, 94, 96, and 97, but the thumbnails are not Daniela but Angel. Angel appears twice on the camera card. Her thumbnails appear on Daniela’s pictures as well as her own.
Camera card images #93, 94, 96, 97
Camera card images #180-183.
Kiper says Daniela’s images on the hard drive and camera card have exact matching metadata. This, he says, is impossible since they are not the same images.
A previous camera card report did not have Daniela’s photos on it. A last-minute, unauthorized FBI camera card report popped up during the trial.
Kiper reports that 30 images appear on the new camera card report not found on the first report. Among these are the Daniela images with Angel’s thumbnails.
Tully said, “the plethora of anomalies on the [hard drive] and the C.F. card… all support the government’s narrative.”
The experts are:
Dr. James Richard Kiper Ph.D.
Dr. J. Richard Kiper, Ph.D., is a retired FBI Special Agent of 20 years. He served as unit chief of the FBI Academy in Quantico.
Also, he served as an FBI case agent, supervisor, and computer forensic examiner. His report is here.
Cyber lawyer Steven Abrams
Steven Marc Abrams, J.D., M.S., is a licensed attorney and “an expert in digital forensics.” His report is here.
Wayne Norris
Wayne B. Norris is “an expert witness in more than 100 technology-related cases.” His report is here.
Tully writes that all three experts concluded that the government “tampered with the evidence.”
Back to the Judge?
When a federal defendant files an appeal, as Raniere has done, the appellate court has priority. Currently, Raniere’s case is with the appellate court. However, only the trial judge decides a Rule 33 motion for a new trial.
Therefore, the stay of the appeal must be granted by the appellate court for the trial judge to consider the Rule 33 motion.
If the appellate court does not stay the appeal, then the Rule 33 motion will wait until the appellate court rules on Raniere’s appeal.
