By Kristin Keeffe
Raniere built his Rule 33 motion for a new trial almost entirely around the “findings” of a retired FBI agent named Richard Kiper.
After his conviction, Keith hired Kiper to review the digital evidence the prosecution used at his trial to prove Keith took with his camera and possessed on a hard drive pornographic pictures of 15-year-old “Camila.”
FBI Forensic Examiner Trainee Virginia Donnelly’s photograph of the hard drive that contained the child porn pictures.
Based on Kiper’s ‘findings,’ Raniere, in his Rule 33 motion, claims the FBI tampered with the metadata of the pornography and planted evidence on a hard drive after they seized it from Raniere’s library.
What it takes to win a Rule 33 motion
Rule 33 of the Federal Rules of Criminal Procedure grants a convicted defendant the right to motion for a new trial on various grounds, including “newly discovered evidence.”
Quoting US v. Owens, a case also involving possession of child pornography, Assistant US Attorney Tanya Hajjar wrote in her opposition to Keith’s Rule 33 motion, “For a court to grant a motion for a new trial based on newly discovered evidence, the defendant must demonstrate that:
(1) The evidence be newly discovered after trial;
(2) Facts are alleged from which the court can infer due diligence on the part of the movant to obtain the evidence;
(3) The evidence is material;
(4) The evidence is not merely cumulative or impeaching; and
(5) The evidence would likely result in an acquittal.”
New evidence will result in acquittal?
Looking carefully at these points, it is clear Keith’s motion cannot succeed.
Let’s focus on two key points: Was the evidence [Kiper’s findings] newly discovered after the trial, and would it have led to an acquittal if Keith’s trial counsel had presented this evidence to the jury?
The prosecution gave Keith’s three trial attorneys – Marc Agnifilo, Paul DerOhannesian, and Teny Geragos – and their forensic expert – copies of the hard drive evidence on October 5, 2018.
Paul Dero’Hannasian and Marc Agniflo, trial attorneys for Keith Raniere.
Teny Geragos and Marc Agnifilo
The prosecution gave the same evidence to 12 other defense attorneys for Keith’s five codefendants.
Nancy Salzman with her lawyers David Stern and Robert Soloway.
Attorney Justine Harris and her client, Kathy Russell.
Lauren Salzman with her attorney, Hector Diaz.
Allison Mack with her attorneys Sean Buckly and William McGovern
Clarw Bronfman with attorneys Susan Necheles and Katheen Cassidy
Clare Bronfman with her attorney Mark Geragos.
Clare Bronfman with her attorneys, Ronald Sullivan and Duncan Levin.
If 15 of the most expensive, renowned criminal defense attorneys from across the US, with unlimited budgets for support staff, experts, and discovery, failed to evaluate the evidence when they had it, it’s not new.
The motion fails no matter what Kiper alleges he found within that hard drive evidence two years later. That’s all there is to it.
A Rule 33 motion based on newly discovered evidence is not merely an opportunity to re-litigate the case with the same evidence, but rather a chance to present something new that wasn’t available at the time of the trial.
Newly discovered evidence refers to evidence that:
It was discovered after the trial.
It could not have been discovered earlier with due diligence before or during the trial.
It is material that would probably produce an acquittal or a different verdict upon retrial.
Even If It Were New….
Would this new evidence, were it newly discovered, lead to an acquittal?
On June 19, 2019, a Brooklyn federal jury convicted Raniere of
sex trafficking,
attempted sex trafficking,
sex trafficking conspiracy,
forced labor conspiracy
Wire fraud conspiracy.
racketeering,
racketeering conspiracy,
The prosecution alleged 11 predicate acts in the racketeering charge.
Only three of the 11 predicate acts involved the alleged “newly discovered” evidence. One act of possession of child pornography and two counts of sexual exploitation of a minor.
The other eight Racketeering Acts (Identity Theft [twice], Computer Hacking, Video Alteration in Civil Case, Trafficking for Labor, State Law Extortion, Sex Trafficking and Forced Labor) had nothing to do with child porn charges.
The alleged newly discovered evidence of “tampered” child porn metadata also does not affect Raniere’s conviction on the other serious charges:
sex trafficking,
attempted sex trafficking,
sex trafficking conspiracy,
forced labor conspiracy
Wire fraud conspiracy.
No matter what Kiper alleges about the digital evidence of child pornography, Keith is still guilty of five serious felony counts and eight other predicate acts of racketeering – all unrelated to the charges concerning Camila.
So, no acquittal.
