Things move fast at the DOJ Eastern District of NY.
No sooner do we learn that Moira Penza has left as an assistant US attorney for that office than we learn they have a replacement in mind.
And it is no less than Teny Geragos.
Now, if that name is familiar to readers, it’s not only because she’s celebrity attorney Mark Geragos’ daughter – but also because she was one of Keith Alan Raniere’s attorneys in his recent trial.
While Teny did little to no cross-examination of witnesses during the trial, she was there every day and she met with the masterful Vanguard innumerable times for months on end at the Metropolitan Detention Center where he was being held without bail.
She helped out in his defense and probably got a closeup look at the Vanguard.
Now Teny wants to take Moira Penza’s position and it seems the bosses over at the EDNY want her to do so as well.
There is only one potential problem – Keith Alan Raniere.
What the EDNY is asking the Honorable Nicholas G. Garaufis, who presided over the Raniere trial, to do is hold a Curcio hearing – where Keith – with separate legal representation if he so desires – will be asked if he thinks there will be a conflict for him if Teny goes to work for the opposition.
Here is the letter that Assistant US Attorneys Mark Lesko, Tanya Hajjar and Kevin Trowel wrote on behalf of their boss, US Attorney Richard Donoghue to Judge Garaufis.
[I have omitted the case numbers etc. of the cases cited].
Dear Judge Garaufis:
The government respectfully submits this letter to notify the Court of a potential conflict of interest involving Teny Geragos, Esq., who represents the defendant Keith Raniere in the above-captioned case.
The conflict is presented because Ms. Geragos, an associate of Brafman & Associates, P.C., and one of Raniere’s counsel-of-record in this case, has submitted an application for a position as an Assistant United States Attorney with the United States Attorney’s Office for the Eastern District of New York (the “Office”).
The government advises the Court of this information pursuant to its obligation under Second Circuit law so the Court may conduct the appropriate inquiry pursuant to United States v. Curcio, 680 F.2d 881, 888-90 (2d Cir. 1982).
The Sixth Amendment affords a criminal defendant the right to effective assistance of counsel. See Wood v. Georgia…. That right, however, is not absolute and does not guarantee the defendant counsel of his own choosing. See United States v. Jones….
While there is a “presumption in favor of the [defendant’s] chosen counsel, such presumption will be overcome by a showing of an actual conflict or a potentially serious conflict.” Jones… see also Wheat v. United States….
The Second Circuit has held that when a potential conflict of interest arises, before, at, or during trial, generally, the district court should conduct a hearing to determine whether there exists a conflict which would prevent the accused from receiving the kind and quality of legal advice and assistance that is guaranteed by the Sixth Amendment…. The Second Circuit has repeatedly noted that such conflicts should be brought to the attention of the court as early as possible. See United States v. Stantini…. United States v. Malpiedi…
Regardless of the severity of the conflict, “[f]ederal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat…
To determine if a defendant’s counsel is burdened by a conflict of interest, the court “must investigate the facts and details of the attorney’s interests to determine whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at all.” United States v. Levy….
An actual conflict exists “when the attorney’s and the defendant’s interests diverge with respect to a material factual or legal issue or to a course of action, or when the attorney’s representation of the defendant is impaired by loyalty owed to a prior client.” Jones….
An attorney has a potential conflict of interest “if the interests of the defendant may place the attorney under inconsistent duties at some time in the future.” United States v. Kliti….
If the court determines that the “attorney suffers from a lesser [actual] or only a potential conflict,” then it may accept a defendant’s knowing and intelligent waiver. Levy….
Defendants can knowingly and intelligently waive potential conflicts arising out of an attorney’s application for employment at a United States Attorney’s Office. See United States v. Buissereth…. (finding that defendant had made a knowing and intelligent waiver where fully informed of the potential conflict of interest arising out of his counsel’s application to the United States Attorney’s Office); United States v. Jenkins….
The Government’s Proposal
The government respectfully submits that the pending application on the part of Ms. Geragos to the Office gives rise to a potential conflict of interest.
However, in view of the nature of the conflict, Raniere may waive his rights and continue to be represented by Ms. Geragos. Particularly because Ms. Geragos is not lead counsel to Raniere, the possibility of her making decisions disadvantageous to Raniere in order to please the government is remote. Under these circumstances, the government respectfully submits that the conflict can be waived.
Ms. Geragos has listed several of the undersigned prosecutors, among others, as references in her application to the Office.
The government therefore respectfully submits that the Court should conduct a Curcio inquiry of Raniere to ensure his waiver of the conflict is knowing and voluntary. Specifically, the government proposes that the Court advise Raniere as follows:
“Mr. Raniere, I am advised that one of your attorneys, Ms. Geragos, has a pending application to work as an Assistant United States Attorney in the United States Attorney’s Office for the Eastern District of New York, which is the prosecutor’s office currently handling your case. Generally speaking, you have the right to be represented by the attorney of your choice, and I have every reason to believe that Ms. Geragos is capable of adequately representing you. You may continue to have Ms. Geragos represent you if you so desire, but there are some risks for you in proceeding with Ms. Geragos, and I must ask you a series of questions to assure myself that you understand the risks and still want to proceed with Ms. Geragos. It is possible that Ms. Geragos could make decisions in connection with her representation of you, consciously or unconsciously, with an eye to how such decisions might affect her application to work for the United States Attorney’s Office. For example, Ms. Geragos could wish to avoid antagonizing the government, and advise you to take certain positions in your case in order to please the government. Such decisions may have a negative effect on how your criminal case or sentencing proceeds with respect to your situation.
“There may be other issues, in addition to the ones that I’ve just described, that can arise in which your attorney’s ability to do certain things might be affected by the fact that she is seeking employment with the United States Attorney’s Office. No one can foresee every possible conflict of interest. Do you have any questions about what I have just explained to you? Can you tell me in your own words what you understand the potential conflict of interest to be? You have the right to be represented by an attorney who does not have any possible conflict of interest in representing you at all stages of this case, including at your sentencing. If you proceed with Ms. Geragos as your attorney, you will be giving up that right. Do you understand that?
“Have you discussed these issues with your attorneys? You also have the right to consult with an independent attorney who can advise you about the possible conflicts of interest that might arise if you proceed with Ms. Geragos as your attorney. Do you understand that? You are not under any pressure to make a decision about this right now. You are entitled, if you wish, to a reasonable period of time to think about these matters, or to consult further with your lawyer or with another, independent lawyer before you advise the Court what you wish to do. Do you feel you have had enough time to consult with your attorney or any other such attorney and are you comfortable making a decision now?
“Are you willing to give up the rights that I just described to have counsel free of any conflict, so that you can proceed with Ms. Geragos as your counsel? “
For the reasons set forth above, the government respectfully requests that the Court conduct a Curcio inquiry in order to record Raniere’s knowing and intelligent waiver of the conflict described herein.
RICHARD P. DONOGHUE United States Attorney
By: /s/ Tanya Hajjar, Mark J. Lesko, Kevin Trowel Assistant U.S. Attorneys
cc: Marc Agnifilo, Esq. (counsel for Raniere) Teny Geragos, Esq. (counsel for Raniere) Avraham C. Moskowitz, Esq. (Curcio counsel for Raniere) (by email)
What is Left for Geragos to Do for Raniere?
It is important, I think, to note that Raniere is no longer a defendant in the case. He was convicted and is awaiting sentencing. That’s mainly what lies ahead for the lad. [That and a possible appeal which I suspect has a snowball’s chance in hell to succeed.] The appeal – if Geragos goes to the DOJ – won’t be handled by her, obviously.
A sentencing date is not set yet for Raniere – or any of the other Nxivm convicts – but it is anticipated that a date will be set before the end of the year.
Raniere’s attorneys, including Geragos, will work to try to get Raniere the lightest possible sentence. They might speak with probation to favorably influence their Pre-Sentencing Report, help gather information that is favorable to Raniere, and even help gather letters to the judge asking for leniency from some of the followers of Raniere. They may even speak in his defense at sentencing, trying to persuade the judge that the lordly one, who called himself Vanguard, was really misunderstood and actually helped out a legion of followers.
His intentions were good, if a little perverted [and perversion is not necessarily a crime.]
How well all that will serve Raniere is hard to say. Judge Garaufis will probably get numerous letters from victims of Raniere who will describe a monster that will be quite similar to the monster that was described by prosecution witnesses at his trial.
EDNY Seems to Want Geragos
I think it is also important to note that if the EDNY did not wish to hire Teny Geragos, they would not likely bother the court with a request for a Curcio hearing. My suspicion is that Judge Garaufis will grant the hearing and the little rascal will come to court and likely not object to her application to work at the DOJ and her continuing to represent him.
He could also discharge her but I do not think he will do this because he might think it will help him.
In reality, it will have little to no impact on his sentencing. Other than the fact that he can appear to be a little cooperative and reasonable in keeping Teny as his lawyer despite her desire to get a new job, the judge will be weighing much heavier factors in determining what to sentence the self-proclaimed ethicist and leader of Nxivm.
Keith Alan Raniere was the leader of Nxivm and described himself as an “ethicist.” An ethicist is a person who determines the ethics for a group or community. An ethicist’s judgment is considered superior and morally suasive and his community takes, on trust, what he believes is ethical and follows it as their agreed-upon ethics.
So Teny is doing just about what Moira did and hopes to take her place at her office. She is likely to get the job and go to work for about $150,000 per year. Maybe she will luck out like Moira and get a big case and slam it home. Then go back to private practice and get a partnership somewhere in the million-dollar per year range.
Ongoing Prosecution of Nxivm?
What does the potential hiring of Raniere’s attorney say about any ongoing investigation and prosecution of the Nxivm criminals? We cannot be too certain. At first blush, it does not seem to augur well for any further prosecution at the EDNY of Nxivm.
[That does not rule out the NDNY].
If the EDNY was going to pursue an investigation and prosecution of additional Nxivm criminals, the optics of having Raniere’s attorney on their staff is a trifle awkward. Of course, conversely, Teny would be sequestered from anything having to do with NXIVM.
It is also fair to suggest that Teny would likely have little to no impact on any decision to go easy on Raniere. Chances are she would not even have a discussion – at least not one on the record – with anyone at the DOJ about Raniere or his sentencing.
Whatever secrets she learned about Raniere and his case are bound by attorney-client confidentiality. And I do believe that this is sincerely respected by attorneys on both sides.
Raniere may not realize it, but there is nothing Teny can do to help him on the other side.
His fate is in the hands of the judge. And his fate looks gloomy since Raniere, 59, faces a minimum of 15 years for his sex trafficking conviction alone.
He will get credit for the time he has already served at M DC. Raniere has been in federal custody since March 26, 2018, making it about one and a half years [almost as much time as he kept Daniela confined in a room.] With about 15 percent off for good behavior, were Raniere to get the minimum sentence – of 15 years – with his year and a half in custody and another approximately 2.5 years off for good behavior – Raniere could be out in 11 years – or in 2030. He would be 70.
Of course, it seems unlikely that Raniere will get the bare minimum. He might get 20, or 25 years or maybe even life. It is up to the judge.
Raniere’s attorneys will, of course, argue for leniency and very likely the DOJ attorneys will argue that the judge should sentence him to the maximum legal sentence – which is life in prison.
There could be one exception to this. If Raniere has chosen to cooperate with the feds and is giving them information about some of the public corruption that he helped arrange. If Raniere chose to tell what public officials he bribed and got to do illegal things, perhaps there is a chance that the prosecution might go a little easier on him in their arguments for sentencing before the judge.
Geragos, Agnifilo Seemed Friendly With DOJ Attorneys
When I was in court, I observed a very collegial attitude between Marc Agnifilo and Teny Geragos and Moira Penza, Mark Lesko and Tanya Hajjar. They were courteous and friendly to each other and outside of the jury’s presence, they were jovial.
I personally don’t think this is improper. What I observed is that the EDNY team seemed to like and respect Raniere’s defense team of Agnifilo and Geragos and vice versa.
This is not improper, I don’t think, providing both sides act diligently in defense of their cause – and behave appropriately before the jury. From my observations, they did. They would contest vigorously before the jury and the judge and outside the jury’s presence, they were quite chatty and friendly.
Evidently, the EDNY team saw something in Teny and now want to hire her.
Chances are she’ll make a fine Assistant US Attorney and in a few years, perhaps move along on her upward path.
Female Lawyers Were Likely the Type Raniere Craved
It is ironic that the three female lawyers in Raniere’s case – Tanya Hajjar and Moira Penza for the prosecution – and Teny Geragos for the defense – are all slender, attractive women.
In a case rife with descriptions of Raniere’s sexual proclivities and his desire for slender attractive women, it must not have been lost on the jury, on observers and on Raniere himself the poetic irony of the legal team arrayed against him and even for him being the very type of women he so wantonly craved.
One wonders if Teny’s decision to leave private practice – she is an associate at Brafman and Associates – to go into prosecution was motivated at all by being on the wrong side of the Raniere case.
She will never tell, I suspect, but one cannot help but wonder, as she learned more and more about her client, the Vanguard, if she were not thinking that she would have much rather prosecuted this rascal than defend him.