By Richard Luthmann
Keith Raniere has asked the US Court of Appeals for the Second Circuit to issue A Writ of Mandamus, in effect, an order to Judge Nicholas G. Garaufis to disqualify himself from judging Keith Raniere’s Rule 33 motion as a matter of law, and or public duty.
In my opinion, his chances of success are not high.
This is not to say Raniere’s lawyer, Joseph Tully, is not making an appropriate motion.
Raniere has 97 years to go on his sentence. His appeal was denied. He is funded in his legal efforts by Clare Bronfman, who can afford to finance every motion, no matter how remote the chances of success are.
Attorney Joseph M. Tully represents Keith Raniere in his latest petition for a Writ of Mandamus from the US Appeals Court for the Second Circuit.
But the deck is stacked against Raniere.
Disqualification of Judges
To disqualify District Court Judge Nicholas Garaufis, Raniere must show that a specific statute – 28 U.S.C. § 455 – is violated if Judge Garaufis stays on the case.
Raniere must show that the public perception of Judge Garaufis’ impartiality might be reasonably questioned. Raniere’s lawyers claim that Judge Garaufis “has a personal bias or prejudice” against Keith Raniere.
Keith Raniere claims Judge Garaufis “has a personal bias or prejudice” against the Vanguard.
The Second Circuit has allowed judges to stay on cases where reasonable observers might see the Judge’s impartiality unlikely.
In the filed Petition For Writ Of Mandamus, Raniere’s lawyers claim Judge Garaufis displayed “a lack of judicial temperament and expressed [his] personal distaste for Mr. Raniere and his counsel.”
For the U.S. Court of Appeals for the Second Circuit, that may not be enough.
Second Circuit Precedent Disfavors Raniere
Some believe a case might hit too close to home for a judge to stay on a case when a family member is involved.
The Second Circuit in Taylor v. Vermont Department of Education saw no problem with a judge sitting on a case brought against a school district, even though the school district employed the judge’s daughter.
In United States v. Arena, the Second Circuit saw no issue when a judge stayed on a case where a defendant was on trial for hiring someone to put butyric acid in the vent of an abortion clinic creating a smell that forced the clinic to close for a day when the judge’s wife was a financial supporter of the clinic.
The public might think it is difficult for a former prosecutor who zealously prosecuted the Latin Kings to serve as an impartial judge over a trial of members of that same gang.
The Second Circuit in United States v. Sanchez said the former prosecutor, turned judge could stay on the case.
Upton Beall Sinclair Jr. was an American writer, muckraker, political activist, and the 1934 Democratic Party nominee for governor of California.
Novelist Upton Sinclair once said, “It is difficult to get a man to understand something when his salary depends upon his not understanding it!”
The Second Circuit In United States v. Zuger, a panel of judges decided that the fact that the United States Government pays a judge’s salary creates no need for recusal.
What if a Judge is a witness in a case he presides over?
In United States v. Rivera, a judge was asked to recuse himself because he would be a material witness at the hearing of the claims before him. The judge agreed he was a material witness, but ruled he didn’t have to recuse himself automatically. The Second Circuit agreed.
Judges have wide latitude for fact findings and evidentiary rulings, most of which can be overturned only for abuse of discretion, a high hurdle.
Federal district judges draw an annual salary of $218,600, which isn’t much more than a first-year attorney at a top-tier law firm earns.
What Will the Second Circuit Do?
Thurgood Marshall U.S. Courthouse, home of the U.S. Court of Appeals for the Second Circuit in New York, New York.
The Court has said on numerous occasions that recusal is based on the specific facts and circumstances of the case. No one knows those facts and circumstances better than the sitting judge.
The Second Circuit will probably tell Raniere that they believe Judge Garaufis is competent to decide if he is a “fair and impartial judge” before they weigh in to see whether he was right or wrong.
That’s not to say the odds are zero.
The 2nd Circuit might rule that there is a perception of bias on the record when Judge Garaufis explained his reasoning for cutting Lauren Salzman’s cross-examination short to Raniere’s trial lawyer, Marc Agnifilo:
The Court: Look, I am not saying you are not a man you are not a lawyer who maintains his composure. I am not talking about that. I am worried about her composure in this case. I have to sentence this defendant and what you did was ask her to make legal judgments about whether what she did in pleading guilty was farcical that she took somebody else’s advice, some lawyer, so she could get out from under a trial. I thought that went pretty far beyond the pale, frankly.
Mr. Agnifilo: Your Honor, I –
The Court: I took her guilty plea, sir. All right?
Judge Garaufis admitted that sentencing Lauren Salzman was an overriding concern for why it was “necessary” to stop the cross-examination.
Judge Garaufis seems to have weighed a future sentencing proceeding of a Government witness as more important than the trial of a criminal defendant over which he was presiding.
Judge Garaufis could have recused himself from the Salzman sentencing.
Salzman wasn’t being sentenced that hour or that month. Raniere was on trial that instant.
The judge appeared more concerned with protecting Salzman’s Cooperation Agreement than Raniere’s constitutional rights.
“I may not get everything right up here, but I will tell you, as a human being, it was the right decision. Alright? And before I’m a judge, I’m a human being,” Judge Garaufis said.
Will Judge Garaufis Be Disqualified?
In re Drexel Burnham Lambert, Inc., the Second Circuit said a Judge was not required to recuse himself for bias against a defendant based on “sharpness” in a colloquy between the judge and counsel.
For the Appellate Court, such statements do not demonstrate bias but are “well within acceptable boundaries of courtroom exchange.”
The Second Circuit has said recusal is warranted in some cases. For example, in United States v. Amico.
The Second Circuit found the District Court judge abused his discretion in not recusing himself from a criminal trial, where the judge did not address his prior dealings with the Government’s star cooperating witness. The Second Circuit found that the judge’s relationship and failure to adequately disclose the same would have led a disinterested observer to conclude that partiality existed.
The Second Circuit also looks askance at District Judges who comment publicly on cases before them. In United States v. Diaz, the Second Circuit found that recusal was warranted when the Judge had communicated with the United States Attorney and a Senator about whether the Defendant was subject to enhanced sentencing while the Defendant’s appeal was pending.
The judge was disqualified from presiding over the defendant’s resentencing on remand since the judge’s impartiality might reasonably be questioned based on his extra-judicial activity.
Likewise, in In re IBM Corp. The Second Circuit found that a District Court judge should have recused himself from the consideration of a motion in an antitrust case, since based on his newspaper interviews concerning the company subject of the litigation.
The Second Circuit found that a reasonable observer would question the judge’s impartiality.
In Keith Raniere’s case, it appears Judge Garaufis had no prior dealings with Government witnesses or spoke “out of school” on the Vanguard case.
Raniere’s recent request for a Mandamus is unlikely to be granted.
