Keith Alan Raniere has made a motion for a new trial based on allegations of perjury of two critical witnesses, Daniella and Nicole, during his 2019 trial.
His lead attorney, Marc A. Agnifilo, filed papers with United States District Judge Nicholas G. Garaufis, moving to vacate the results of Raniere’s conviction at trial.
Agnifilo’s argument is that Nicole and Daniella committed perjury when they said they had no plans to sue Raniere civilly.
Agnifilo filed a memorandum in support of the motion.
Here are important excerpts from the memorandum:
…. On January 28, 2020, seven months after the guilty verdict in this case, four key witnesses [in the criminal trial]… among many other plaintiffs, filed a civil suit against Raniere seeking monetary damages…
This [civil] Complaint shows that two of these witnesses, Daniela (Jane Doe I in the lawsuit), and Nicole (Jane Doe 4 in the lawsuit) committed perjury at the [criminal] trial by knowingly lying about their intention, plan and role in bringing a civil lawsuit against Raniere and others for monetary damages.
Moreover… the government knew or should have known that these witnesses committed perjury at the trial, and…the government not only permitted perjured testimony to be elicited to the jury, but also obstructed counsel’s efforts to reveal the motivations of these witnesses who have brought suit against Raniere…..
Witness perjury can alone be sufficient to warrant a new trial.
However, where, as here, the government had either actual knowledge of the perjury, or, at a minimum, should have known of it, reversal is virtually automatic…..
This perjury is all the more significant given the other errors defense counsel already raised during the course of this trial….
(a) the Court allowed several witnesses deemed victims by the government to testify under nicknames or partial names;
(b) the Court terminated defendant’s cross-examination of the sole cooperating witness [Lauren Salzman]….
(c) the Court permitted evidence of numerous abortions although the defense offered to stipulate to sex between Raniere and these women.
…. the government knew or should have known that … [Nicole, Daniella, Jaye] … with Neil Glazer, as their lawyer, were intending to bring a civil lawsuit because…. Glazer attended at least thirty-three government proffer sessions with at least fifteen different witnesses and potential witnesses interviewed by the prosecutors and agents assigned to this case….
This number does not include the number of preparation sessions that Glazer attended with his clients….
.[T]he government’s second witness, Mark Vicente, testified that he had retained Glazer as a civil lawyer for a potential future lawsuit… putting the prosecutors on actual notice that Vicente at least was contemplating a civil suit against Raniere….
…. By the time Daniela testified commencing on May 23, 2019, the government was well aware that she was contemplating a civil suit, along with Mark Vicente and Nicole and Jay.
…. the prosecution obstructed the defense line of questioning to develop collusion among the witnesses – and instead the jury and counsel were left with the witnesses’ false and misleading answers that they had no plans to file suit, when the government knew, or should have known, that was not the case.
If the jury had known about the perjury, demonstrating the witnesses’ bias to testify against Raniere, their collusion with each other and their willingness to lie under oath, there is a significant chance that this would have undermined the credibility of these witnesses and permitted, together with other evidence elicited by the defense, the jury to disregard or doubt their critical testimony in whole or in part.
This would have significantly undermined the strength of the government’s case, which rested entirely on these witnesses’ corroborative testimony in the charges of
Racketeering Act 1 (Daniela),
Racketeering Act 5 (Daniela),
Racketeering Act 7 (Daniela),
Racketeering Act 8 (Daniela),
Racketeering Act 9 (Nicole and Jay),
Racketeering Act 10 (Nicole),
Count 5 (Nicole)
Count 6 (Nicole)
Count 7 (Jay).
Given the essential role Daniela, Nicole and Jay’s testimony played in this case, the evidence of Daniela and Nicole’s collective perjury (with their lawyer approving of it) and the government’s failure to correct it or meaningfully investigate it warrants a new trial.
…. Neil Glazer works for the firm Kohn Swift & Graf in Philadelphia, PA, which according to their website, practices in the following areas: Antitrust, Human Rights/Anti-Terrorism, Consumer Protection, Intellectual Property and Securities…. there is no mention of representation of in individuals in a criminal investigation….
Beginning on November 11, 2017 – when the DOJ’s investigation began – Glazer brought in “numerous individuals” into the U.S. Attorney’s Office for interviews or proffers…
Counsel was unaware of the sheer amount of witnesses he represented until counsel began receiving [discovery] materials… on April 2, 2019.
This material made clear that Glazer represented at least fifteen individuals and was expending countless hours of time on this matter – which included travel to New York City from Philadelphia, PA – over two years despite representing to this Court that his clients became “impoverished” by Bronfman and Raniere….
…. Glazer represented at least 16 witnesses interviewed by the government.
1. Mark Vicente (Named Plaintiff in the lawsuit)
2. Toni Natalie (Named Plaintiff in the lawsuit)
3. Sarah [Edmondson]
4. Daniela (Jane Doe I)
5. Nicole (Jane Doe 4)
6. Jay (Jane Doe 2)
7. Audrey (Jane Doe 5)
8. Jennifer Kobelt (Jane Doe 19)
9. Adrienne (Jane Doe 16)
10. Sallie Brink (Jane Doe 51)
11. Hector (John Doe 8)
12. Carly (Jane Doe 10)
…. From the 3500 [discovery] material that the government produced, Glazer was present for at least thirty-three interviews with potential witnesses from the government…. It appears that many witnesses were contemplating a lawsuit….
Glazer and typically one of his associates, were present for the testimony of the following clients – Daniela, Nicole and Jay….
…. as of May 22, 2019, the Court, the government and their agents and the defense were well aware that … Glazer represented Mark Vicente in “potential civil matters”….
The very next day, on May 23, 2019, the prosecution called Daniela as a witness. Daniela was on direct examination until May 30th, when counsel began cross-examination in the afternoon.
…. On May 31, 2019, counsel questioned Daniela on her connection to Glazer, Glazer’s representation of her, and whether she was introduced to Glazer through Vicente.
The witness either lied or her answers were cut short by the government’s objections, which the Court sustained.
The relevant questioning is as follows:
AGNIFILO: How many times have you spoken to Mark Vicente in the last three years?
DANIELA: About. I would say two or three times.
AGNIFILO: And did you call him or did he call you?
DANIELA: I don ‘t remember exactly.
AGNIFILO: You have a lawyer named Neil Glazer, correct?
AGNIFILO: Because you are going to bring a civil lawsuit, aren’t you?
AGNIFILO: You have no intention of bringing a civil lawsuit against Keith Raniere or NXTVM or anyone else?
DANIELA: That’s not something that I have done or decided, no.
AGNIFILO: I know you haven’t done it but you plan on doing it, don’t you?
AGNIFILO: Why do you have Neil Glazer as your lawyer?
DANIELA: I, initially — I needed counsel to handle the precarious situation with my little sister Camila and after that, I needed counsel to interact with officials from the government.
AGNIFILO: Mr. Glazer is not a criminal lawyer, right?
DANIELA: I don’t know.
AGNIFILO: Do you know that he’s Mark Vicente’s lawyer too?
AGNIFILO: Did you get Mr. Glazer from Mark Vicente?
… This is a lie. Daniela did not need Glazer’s services to interact with the government concerning a “precarious situation with [her] little sister Camila” for the simple reason that Daniela did not inform the government that she created a false identification card to get Camila into Mexico until she admitted this for the first time on cross examination…..
[She] testifyi[ied] that she didn’t “remember exactly” when she thinks she told the government about this fake identification card)…
Notably, Camila is not even one of Glazer’s … clients. The truth is that Daniela got Glazer from Vicente to sue Raniere….
In light of the fact that Vicente had previously testified that he had hired Glazer for potential civiI matters against Raniere, challenging Daniela’s false testimony by reference to how she came to hire Glazer, an absolutely appropriate, non-privileged question, would have put the lie to her testimony.
However, the government actively assisted Daniela in concealing the truth from the jury by objecting to this question and having that objection sustained….
AGNIFILO: How did you find Mr. Glazer as your lawyer?
PENZA: Objection, Your Honor.
AGNIFILO: So as you sit here today, you have no intention of bringing a civil lawsuit?
DANIELA: That’s right.
AGNIFILO: And you haven’t had any discussions with anyone about bringing a civil lawsuit?
… Counsel was forced to accept her lies as the truth, and the jury had been misled….
On June 7, 2019, Glazer returned to court again, this time with his testifying client, Nicole.
Just as during Daniela’s testimony, Glazer was present behind counsel during direct and cross examination of Nicole. Like Daniela, Nicole repeatedly denied any intention to bring a civil lawsuit.
Counsel first asked:
AGNIFILO: Was there talk about a civil lawsuit against NXIVM and Keith Raniere?
AGNIFILO: And did he [Parlato] pressure you to be involved in a lawsuit?
NICOLE: In like a civil lawsuit?
AGNIFILO: Do you remember telling that to the FBI?
COURT: You may answer that.
NICOLE: Can you repeat the question?
AGNIFILO: Sure, do you remember telling the FBI that Frank Parlato pressured you to join a lawsuit against NXIVM?
AGNIFILO: Okay, I’m just going to show you something. l’m just going to show you one page and have you read it to yourself. This is 3500-N, number one, its page 4 of that document.
COURT: All right.
AGNIFILO: I’m just going to have you read this to yourself.
AGNIFILO: Do you remember telling the FBI – this is your first interview with them, so it would have been on November 9, 2017, that Frank Parlato was pressuring you to join a lawsuit against NXIVM and also speak with law enforcement regarding NXIVM?
PENZA: Objection, Your Honor.
COURT: I will allow it.
NICOLE: Yeah, he was…..
AGNIFILO: And your lawyer, Mr. Glazer is here today, right? He is the gentleman, my colleague here to my left, right?
AGNIFILO: Are you intending to bring a civil suit?
AGNIFILO: You have no intentions of bringing a civil suit?
NICOLE: Like me, personally?
AGNIFILO: You and other people.
NICOLE: Not me, personally.
AGNIFILO: Do you intend to be part of a class-action lawsuit?
AGNIFILO: I’m not — I am going to ask you the question, I’m not asking you for anything that you and Mr. Glazer discussed, okay, so when I ask you this question, it is not conversations between you and Mr. Glazer, okay?
AGNIFILO: Have you discussed with anybody else the prospect of bringing a class-action lawsuit against NXIVM?
AGNIFILO: You haven’t discussed with Jay, for instance?
NICOLE: No. No.
… Glazer was present for Nicole’s three days of testimony, which ended on June 10th.
He returned to Court on June 11 for Jay’s testimony. On direct examination, the government brought out that Jay retained Glazer.
LESKO: Did you end up retaining an attorney?
LESKO: And is that the attorney referenced on the e-mail, Neil Glazer?
… Counsel did not address Jay’s plans to file a lawsuit during cross examination. By this point, it was apparent that the Court would not permit the defendant to explore whether Jay found Glazer from one of the other witnesses or ask probing questions tending to unearth the clear collusion among the witnesses or their intention to bring a civil suit.
… On January 28, 2020, seven months after the jury rendered their verdict, Glazer, on behalf of [80 plaintiffs] …. filed suit against Keith Raniere…
… Glazer’s lead plaintiff…. is Jane Doe I, Daniela. …. Jane Doe 2 is ….Jay….. Jane Doe 4 is …Nicole….
… When a new trial is sought based on perjury by the government’s witnesses, the defendant must “first demonstrate that the witness in fact committed perjury”…. To carry that burden, the defendant need only prove perjury by a preponderance of the evidence… . Second Circuit case law holds that the introduction of perjured testimony requires a new trial if the perjured testimony was material to the jury’s verdict and the prosecution was aware of the perjury….
It is material for the jury to know that a witness’ testimony was motivated or influenced by expectation or hope of monetary damages….
Indeed, if it is established that the government knowingly permitted the introduction of false testimony reversal is “virtually automatic.”….
Daniela (Jane Doe 1) and Nicole (Jane Doe 4), were under oath and they both knowingly gave false testimony on a matter related to their bias toward the defendant, namely whether they were planning to sue him.
Both witnesses testified that they were not planning on bringing civil lawsuits, yet both women are front and center in the lawsuit filed just seven months after the verdict. The same lawyer who represented Daniela during at least ten meetings with the government, during all five days of her testimony and represented Nicole during at least three meetings with the government and during all two days of her testimony is the attorney representing the Plaintiffs.
This is clearly intentional false testimony….
The Government Knew or Should Have Known of the Perjury
…. Yet, the government succeeded in preventing counsel from challenging Daniela’s false testimony…. And counsel was forced to accept her lies as the truth. The truth, of course, is that she absolutely had an intention of bringing a civil lawsuit. The truth is that she, like Vicente, retained Glazer as her lawyer for the same purpose: to bring a civil lawsuit against Raniere.
The same is true for Nicole…
The government should have known that Glazer, who appeared for at least 33 other interviews-despite maintaining an office in Philadelphia and servicing “impoverished” clients was likely representing Daniela and Nicole in “potential civil matters” as well.
D. The Perjury Was Material
Because the government knew or should have known of the perjury, “the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”…. This element is easily met. Daniela, Nicole and Jay ‘s testimony were “to say the least, critical to the government.”
…. Simply put, Daniela and Nicole lied to the jury, the Court and the parties. The lie was material because it directly went to both witnesses’ bias to testify falsely against Raniere. The truth was that they were motivated by money the whole time, motivated by the prospect of a pay-day following the conviction of Raniere and how such a conviction would greatly increase the chances of a civil recovery…..
Daniela was the only witness the government called to support Racketeering Act 1 (conspiracy to commit identity theft, conspiracy to unlawfully possess identification document), Racketeering Act 5 (conspiracy to commit identity theft), and Racketeering Act 7 (conspiracy to commit identity theft)…
In Nicole’s case, her testimony alone supports the sex trafficking count, which carries a mandatory minimum sentence of fifteen years imprisonment. She and Jay’s testimony support Count Three, the Forced Labor Conspiracy….
…. Here, given that the government relied solely on these witnesses for charges that carry mandatory minimum potential life-sentences, “it was fundamentally obvious that the [witness’] credibility and motive for testifying would be a crucial issue.” ….
Indeed, these witnesses’ testimony alone served to convict the defendant on counts which ensure he serves at least fifteen years in prison….
Not only did the prosecutors sit idly by while key government witnesses committed perjury, but the prosecution also actively assisted their perjury…
The government’s failure to correct Daniela and Nicole’s testimony (indeed objecting to questions about the impending suit) and its refusal to conduct a meaningful investigation here thus amounts to a violation of due process and requires a new trial….
Here are the filings
What are the chances of a new trial being granted? I would say, “Not good.” Judges do not like to overturn their own cases. If he did rule that Raniere could have a new trial, it might be accompanied by a directive to investigate whether Daniella and Nicole committed perjury and if so, to bring criminal charges against them.
I don’t see this as very likely.
The argument the defense is making is that Glazer is not a criminal attorney – and that he was not just representing Nicole, Jaye and Daniella with respectepct to their role as witnesses in the criminal matter.
Their prominence in the civil case suggests they were contemplating the civil suit before the trial commenced.
Whether this can be proven by a preponderance of evidence remains to be seen. A hearing may be held before the judge where Raniere can call witnesses to determine whether the government knew or to discover if there is any evidence that establishes Daniella and Nicole retained Glazer to represent them in a civil suit before the trial.
Whether this will impact Raniere’s sentencing on April 16th is unclear.
The judge ordered the prosecution to respond to the defense’s motion by March 24th. This would give the judge time to rule on the motion and if he decides not to grant a new trial [which is my guess], then Raniere’s sentencing can take place as scheduled.
Should he need more time to decide the issue, he could postpone the sentencing.
It would not prejudice Raniere since he is earning time served as he awaits sentencing. He is being held at the Metropolitan Detention Center where he already has logged nearly two years of time served.
If the judge does not grant a new trial, he will likely sentence Raniere to decades or possibly life in prison.
Agnifilo will appeal using the perjury argument – and several other issues that he has identified – in an attempt to overturn the conviction.
One curious issue is why Glazer chose to file his complaint in January instead of waiting for sentencing to be completed. This opened the door for Raniere’s lawyers to seek a new trial prior to sentencing rather than simply making an appeal after he was sentenced.
There may have been very good reasons for this, but the timing of the filing of the lawsuit prior to sentencing gives the defense this opportunity to get two bites at the apple – a pre-sentencing motion for a new trial and a post-sentencing appeal based on the same allegations of perjury.
In sorting this out, the three crucial questions are:
- Did Daniella and Nicole plan to take part in a civil lawsuit, when they said at trial they were not?
- Did their lawyer advise them to deny their plans?
- Did the DOJ suborn perjury by knowing that Daniella and Nicole were going to sue Raniere but worked to prevent any testimony that would lead the jury to rightfully conclude that they were planning to sue?
If the answer to any of those questions is yes, Raniere does deserve a new trial.
However, I do not think a new trial will result in an acquittal for Raniere. I would go a step further and say that had Daniella and Nicole admitted they were planning to be involved in a civil suit, I don’t think it would have altered the results of the criminal case.
That jury was ready to damn Raniere by about the end of day one – and took only a couple of hours to convict him on all counts.
Assuming that Nicole and Daniella were contemplating bringing suit against Raniere at the time they were cross-examined, I would have advised them to say, when asked if they were, “Yes, I do plan to sue him. After what he did to me, I think I am entitled to something to offset the pain he caused me. But suit or no suit, that does not alter the truth of what he did to me.”
On the other hand, it may well be that they did not lie.
At the time, they were glad to be represented by Glazer, who volunteered his services, as they bravely testified against Raniere. Their only goal then may have been to stop Raniere. They may have known about the lawsuit but not planned to be part of it at the time. They may have only decided to get involved in the civil lawsuit after Raniere was convicted.
That might be the truth, the whole truth and nothing but the truth. They were scared but bravely went forward with the motivation of stopping Raniere.
Then afterward, while everyone else was getting on the bandwagon, joining in a lawsuit against Raniere [and more importantly the deep pockets of the Bronfman sisters], Nicole and Daniella, possibly even urged by their attorney Glazer, decided to join in.
They did the absolutely necessary task – testifying in the criminal case. They suffered as much or more than anyone and they came forward and exposed themselves in court.
They might have decided later “Why should everyone else get money, victims who suffered far less?” to join the civil case.
I would also not rule out that their attorney Glazer persuaded them to join after advising them that they could change their minds and, hence, they relied on the advice of counsel to shield them from any criminal liability.
The argument that defeats the defense is that Nicole and Daniella weren’t planning on joining the civil lawsuit at the time of trial but later changed their minds.
If there is no direct evidence to the contrary, I don’t think the defense can make their argument stick.
However, even if Raniere gets a new trial, I doubt much will change. He will remain in custody as he awaits a new trial since the judge has already refused him bail on several occasions.
Then he will be tried again and convicted.