Keith Raniere’s lawyer, Joseph Tully, came out swinging. His target is the FBI. In a fierce attack on the FBI, he accused several New York field office agents of being criminals.
If true, they may end up in prison.
Joseph Tully
Tully supplemented his Rule 33 motion for a new trial for Raniere on Friday. The Rule 33 motion focuses on evidence of child pornography and exploitation. Tully accused the FBI of tampering with that evidence “to gain a dishonest advantage at trial.”
Two devices are relevant. A camera card in a Canon camera –and a Western Digital hard drive – are the focus of the tampering allegations.
Canon Camera
EOS 20D
“The CF card and WD HDD constituted the entirety of the evidence against Mr. Raniere for… child pornography and child exploitation,” Tully wrote in his Memorandum of Law. The FBI seized both devices during a raid of Raniere’s townhouse at 8 Hale Drive in Half Moon, NY.
The hard drive was found on the shelf of Raniere’s library [right arrow]. The camera and camera card were found in a bag under the desk [left arrow].
Camera Card
The FBI found 22 child porn photos of Camila in a folder on the hard drive, along with 145 nude pictures of 11 adult women.
The DOJ alleged the date of the photos is 2005, when Camila was 15. The photos of Camila on the hard drive were evidence of possession of child porn. But the photos alone did not prove Raniere took them. The DOJ used the camera card to prove Raniere took the pictures with his camera.
FBI photo of the bag containing the Canon camera. Inside the camera, the FBI said they found a camera card.
The tie-in was not Camila’s photos. The tie-in were photos of the other nude women on the hard drive – taken by the same camera at around the same time in 2005.
The hard drive with its blue light sat on Raniere’s shelf for years.
The FBI showed that photos on the hard drive were on the camera card. This helped prove the sexual exploitation of a child.
The government never provided Raniere with a forensic copy of the camera card. A forensic copy would give the defense access to what was on the camera card. Instead, the government gave the defense FTK reports. An FTK report was what the government found on the camera card.
On April 24, 2019 – two weeks before trial – Raniere’s lawyers received an FTK report for the camera card. FBI Forensic Examiner Stephen Flatley prepared the report on April 11, 2019. The FBI did a second FTK report during the trial. The defense received the report on June 11, 2019, when FBI witness Brian Booth testified.
The two FTK reports were different. The pretrial FTK report had four images of an adult woman, Angel, that matched images on the hard drive. The mid-trial FTK report had 37 new images not found in the first report. All 37 newly-found images matched images on the hard drive.
The 37 nudes “found” on the second FTK report of the camera card were also found in the folder on the hard drive. It bolstered the claim Raniere used the Canon camera to take Camila’s photos.
Tully wrote, “The FTK report from April 11, 2019, did not contain the thirty-seven new images that the June 11, 2019, FTK report alleged… This… constitutes a bad faith destruction of evidence… The destruction was caused by the intentional insertion of false data onto the CF card, which constitutes a planting of evidence, which is not only bad faith, but also a violation of the law.”
Hard Drive
FBI photo of the hard drive.
Tully alleges that “access to the hard drive was unavailable for adequate investigation.” The FBI seized the hard drive on March 27, 2018. They waited four months to have it copied. And another two months to turn over a copy to the defense – in October.
On January 9, 2019, the prosecution said the government expected to supersede. Six weeks later, FBI agents “accidentally” discovered the alleged contraband photos.
“‘Accidents’ cannot be premeditated,” Tully wrote.
The DOJ ordered the defense to return the hard drive copy on the same day – February 21, 2019. On March 15, 2019, trial counsel was able to review a forensic copy of the hard drive at the FBI offices. The defense realized an expert review of the hard drive was necessary.
They contacted an expert. He said there was not enough time before the trial to prepare a forensic analysis. But the DOJ withheld the hard drive reports for another month – until April – after jury selection.
“Withholding this… evidence was egregious and deliberate misconduct, and done flagrantly, willfully, and in bad faith to deny the defense the ability to investigate,” Tully alleged.
Protocol Violations
FBI Agent Christopher Mills testified the FBI followed protocol. Tully accused AUSA Tanya Hajjar of eliciting “false testimony” from Mills.
He points out that FBI SA Rees and FBI SA Lever checked the camera card out of evidence control on two occasions. They were not authorized to access the device. A Computer Analysis and Response Team [CART] examiner must first examine the device.
A field agent cannot examine the original digital device. FBI agents examine copies of the device. The FBI protects the original device in evidence control.
FBI Special Agent Michael Lever checked the camera card out of evidence control on September 19, 2018.
SA Lever took the camera card from evidence control on September 19, 2018. Someone examined the original camera card without a write-blocker. This examination violated FBI “critical procedure.” The camera card’s “date accessed” information was overwritten. This destroyed the file system dates.
Tully alleged FBI SA Mills not only committed perjury, but FBI SFE Brian Booth also did. Booth claimed not to know who had the camera card when someone made the improper examination.
The camera card had a broken chain of custody. The defense requested Booth’s notes, but the DOJ did not supply them before the trial. Booth knew about the broken chains of custody, though he said he did not. Booth had information about this in his notes.
Finally, SFE Booth’s reexamination of the CF card violated FBI policy. SFE Booth knew that processing the camera card a second time broke FBI protocol. FBI protocol “strictly prohibits” examining an original digital device twice. CART examiners make second examinations if needed from the forensic copy.
Tully wrote, “Booth lied that the breaks in the chains of custody and his ignorance of who held the evidence before he ran his unnecessary FTK report were not important or outside of protocol.”
FBI Special Agent Michael Lever at the raid of Nancy Salzman’s home, the same day as the FBI raid of 8 Hale Drive.
“Agent Mills lied that protocol was followed,” Tully alleged, and “SFE Booth lied about the reliability of the tampered EXIF data… Thus, dismissal is both warranted and the most appropriate remedy.”
The Rule 33 motion includes reports from three digital forensic experts. They detail how they believe the FBI tampered with evidence.
Tully concludes, “dismissal is both warranted and the most appropriate remedy here…. Mr. Raniere is entitled to a dismissal, a new trial, or a hearing to further explore these allegations.”
Inherent in Tully’s accusations is more than dismissal or a new trial. A judge may appoint a special prosecutor. The special prosecutor’s task would be tasked to determine whether Tully’s allegations are true. If the New York FBI agents committed the same crimes they investigate, they must not be above the law. The Special Prosecutor must prosecute them just as you would be – in a New York minute.
But before we rush to judgment, we need an honest investigation. The presumption of innocence and proof beyond a reasonable doubt.
