Frank Report recently published Keith Raniere’s self-described “Call To Action” – an almost 4,000-word screed that was, according to him, intended to motivate “…at least one experienced, vociferous, unrelenting justice advocate to join this effort, bring meaning and social value to this dark time, and turn the monologue of hate about [his] case into a dialog — a conversation — about truth”.
Although I’m not all that vociferous – I am, in fact, an experienced and unrelenting advocate for justice. And seeing as how no one else has yet to step up in response to Keith’s request, I have decided to take a more in-depth look at some of the legal issues concerning his case.
Frequent readers of Frank Report know that I have already raised several questions regarding certain aspects of Keith’s arrest, prosecution, trial, and sentence.
Now, instead of simply raising questions, I will attempt to determine if there are actually enough bona fide legal issues to warrant a new trial for the one-time leader of NXIVM/ESP – and/or whether to warrant the overturning, in whole or in part, of his conviction upon appeal.
Regardless of whatever conclusions I reach, I doubt they will change my current thinking that NXIVM/ESP was/is a criminal enterprise. That’s because I am personally aware of many of the illegal activities that NXIVM/ESP engaged in while it was operational – the vast majority of which have never been charged against Keith or anyone else.
It continues to bother me that not one law enforcement official in the Northern District of New York (NDNY) has ever brought a criminal charge against anyone who was involved in the NXIVM/ESP criminal enterprise.
This includes the four charges that were part of the Second Superseding Indictment in the EDNY case – and that were handed over to the NDNY because the Eastern District of New York (EDNY) lacked the requisite jurisdiction to prosecute them (All the evidence concerning those charges had already been gathered – and one federal Grand jury had already issued an indictment regarding those charges):
Count Three: Sexual Exploitation Of A Child (Jane Doe 2) – Keith Raniere;
Count Four: Sexual Exploitation Of A Child (Jane Doe 2) – Keith Raniere;
Count Five: Possession Of Child Pornography – Keith Raniere; and
Count Eleven: Conspiracy To Commit Identity Theft Regarding Jane Doe 7 – Keith Raniere, Clare Bronfman & Others.
There is a new US Attorney in the Northern District. Her name is Antoinette T. Bacon – and she assumed office on September 2, 2020?
Will she remain after the Biden administration takes over? And if she does remain, is there any reason for her to pursue the four charges handed to the NDNY by the EDNY now that the NXIVM/ESP leader, Raniere has been sentenced to 120 years and Clare Bronfman got a pretty stiff sentence of 81 months?
What would be the point? On the other hand, is there more to investigate?
Antoinette T. Bacon, U.S. Attorney for the Northern District of New York
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Difference Between a Motion for a New Trial and an Appeal
Before delving into the details regarding Keith’s case, I think it’s important that we review the difference between a motion for a new trial and an appeal of Keith’s conviction (I apologize to those of you who already understand all this stuff but I want to be sure that everyone has the same basic knowledge before delving into the details of his case).
A motion for a new trial allows a convicted defendant to have his case re-heard before a different jury. If granted, such a motion results in a complete do-over – albeit that the new trial would likely be presided over by the same judge that was in charge of the original trial.
An appeal, on the other hand, simply involves a reexamination of the original case record by an appellate court. In Keith’s case, the applicable appellate court would be the United States Court of Appeals for the Second Circuit.
Appellate courts only review questions of law.
Thus, for example, an appellate court will not determine whether an expert witness who testified for the prosecution was credible because that was a question for the jury to decide. What the appellate court might consider, however, is whether, as a matter of law, the presiding judge in the criminal trial should have qualified the person in question as an “expert witness”.
Another big difference between a motion for a new trial and an appeal is that appellate courts are limited to reviewing the record of the original trial – and any arguments concerning that record that are submitted by the convicted defendant’s attorneys and the prosecution’s attorneys.
Appellate courts are also limited to the legal arguments that each party made at the original trial. In this regard, neither side is allowed to assert any legal arguments on appeal that were not in some way raised – and, thus preserved – during the District Court trial.
Federal appellate courts generally allow each side to appear for oral arguments. The only exception is when a panel of three appellate judges has examined the trial record and the briefs filed by each side – and has determined that oral arguments are unnecessary because:
The appeal is frivolous;
The dispositive issue(s) has/have been authoritatively decided by the trial court; or
The facts and legal arguments are adequately presented in the trial record and briefs – and the decisional process would not be significantly aided by having oral arguments.
Even if granted, such oral arguments are generally limited to 5-30 minutes – with most falling in the 10-20 minutes range. An appellate court may allow oral arguments to exceed 30-minutes in extraordinarily complicated cases – but those are extremely rare.
If Raniere loses the appeal in his case, he has one more option left, one with a fairly remote chance of success: the Supreme Court of the USA. The highest court does not accept all applications. In fact, they only accept a small minority of cases – and even if they do accept the case, there is no guarantee that they will find for the defendant.
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What Are the Rules Regarding New Trials?
To begin with, let’s take a look at the applicable Federal Rules of Criminal Procedure (FRCP) that govern whether a convicted defendant in a federal criminal case is eligible for a new trial.
FRCP 59 requires that a motion for a new trial – and/or a motion to alter or amend the outcome in a federal criminal case – must be filed within 28 days after the entry of judgment.
Since Keith was convicted on June 19, 2019, he had to file a motion for a new trial within 28 days of that date. Instead, his attorneys notified the court on July 10, 2019 that “…he will not be filing post-trial motions”.
Prior to the July 10, 2019 filing, Keith’s attorneys did renew their motion for a mistrial in his case (See HERE for a copy of that filing). That request was summarily denied by the presiding judge, U.S. District Court Judge Nicholas G. Garaufis.
Since Keith missed the deadline for requesting a new trial under FRCP 59, he instead will have to utilize FRCP 33 if he hopes to get a new trial.https://www.law.cornell.edu/rules/frcp/rule_33
Rule 33 allows a convicted defendant to request a new trial within 3-years of the verdict – but limits the basis for such a request to “newly discovered evidence”.
That is why Keith’s attorneys argued that they had “newly discovered evidence” when they filed a motion for a new trial back on October 19, 2020.
Judge Garaufis denied the motion for a new trial on October 23, 2020 without ever hearing oral arguments on the matter (He actually issued his denial just one day after receiving the government’s arguments in opposition to it).
In his “Memorandum & Order” denying the October 19, 2020 motion, Judge Garaufis made it abundantly clear that he did not find any merit in the argument that the affidavits filed by Michele Hatchette and Nicki Clyne constituted “newly discovered evidence”:
“Tellingly, Mr. Raniere’s memorandum in support of his second new trial motion does not point to a single case in which a court has recognized the kind of evidence he cites as the basis for his motion as “newly discovered evidence” under Rule 33. As the Second Circuit has repeatedly made clear, evidence that was knowable but unavailable to the defendant, including testimony by witnesses whom the defendant failed to call—regardless of the reason for that failure—does not warrant a new trial under Fed. R. Crim. P. 33(b)(1). Accordingly, Mr. Raniere’s motion is properly construed as a motion for a new trial on a ground other than newly discovered evidence under Rule 33(b)(2). That provision of the Federal Rules of Criminal Procedure requires that such a motion be brought within fourteen days of the verdict or finding of guilty. The motion is therefore untimely.”
MK10 ART, painting of Marc Agnifilo, Keith Raniere’s attorney, and Judge Nicholas Garaufis, who sentenced him to 120 years in federal prison and 5 years of probation after that.
Motions for a new trial are generally disfavored by U.S. District Court Judges. That is why the bar for granting such motions is set so high.
If the motion is based on new evidence, then the evidence in question must, in fact, be completely new. It cannot have been anything that was available to the defendant – even if it would have been difficult to obtain – during the trial. Nor can it have been anything that was known to the defendant – or even something not known but knowable by them. Essentially, it must be something that could be considered not to have existed at the time of the trial.
If, instead, the motion for a new trial is based on a new witness, then that witness must have been someone who (1) was completely unknown to the defendant – and undiscoverable even with a diligent investigation – at the time of the trial; and (2) will provide testimony that would have been so important and unimpeachable that it would have unquestionably and radically altered the outcome of the trial. In other words, it’s not enough that the new witness might offer a different perspective for jurors to consider. Instead, the testimony must be so exculpatory that the members of the jury would have been unable to disregard or discount it – and would likely have changed their verdict.
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Stay Tuned – and Please Join in the Discussion
In future posts, I will be focusing on the specific legal issues that Keith has raised in his “Call To Action” – and sharing my opinion as to whether those issues warrant a new trial and/or whether they are likely to result in him winning his inevitable appeal.
As always, Frank Report readers are encouraged to share their own thoughts – and/or to ask questions – regarding these matters.
