Raniere’s Hail Mary Pass Gets Batted Down – Time For Sentencing Draws Nearer if He Survives Coronavirus Crisis

Keith Raniere has always loved to gamble – and the higher the stakes the more joy he got out of it.

But, despite being a self-described mathematical genius, Raniere was not a very good gambler because, as it turns out, almost all his forays into the world of chance turned out badly.

His casino sessions with Toni Natalie usually ended up with all his chips on the other side of the table – even when he followed the sage advice of experts. They did, however, get absolutely killer comped rooms.

His attempt to outsmart the commodities market also turned out badly – especially for those who had to pony up millions of dollars to cover his losses: Barbara Bouchey, Clare Bronfman, Sara Bronfman-Igtet, and Michael Sutton.

And his ill-fated venture into the high-end real estate market in Los Angeles turned out to be another costly misadventure.

But Keith loved to make high-risk bets – to go against the odds and the advice of others.

Like making huge bets in the commodities market when he had no experience or expertise in such “investments”.

Or undertaking a huge real estate development project when he had no experience or expertise in such projects.

Or branding a bunch of women with his initials because what could possibly go wrong with that?

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Raniere’s Motion for a New Trial Was a Hail Mary Pass

There’s not very much for convicted defendants in federal criminal cases to do while they await sentencing.

Maybe one or two interviews with the Probation Officer who will be writing up their “Pre-Sentencing Report”.

Perhaps a review of the trial transcripts to identify potential issues that can be brought up on appeal (A convicted defendant cannot file an appeal until after he’s been sentenced).

And for those defendants who still have money to waste on long-shot legal motions, working on a Rule 33 motion for a new trial.

Which is exactly what the former Vanguard decided to do while he sat in his cell at the Metropolitan Detention Center (MDC) – and tried to avoid getting contaminated with the coronavirus that is reportedly running rampant throughout the facility.

Rule 33 Motions – which are a convicted defendant’s request for a new trial – are rarely granted.

Indeed, the Second Circuit – which is where Raniere’s trial took place – has instructed its district courts that such motions should be granted only under “the most extraordinary circumstances”.

In one of its more recent appellate decisions on the topic, the Second Circuit ruled that “For a trial judge to grant a Rule 33 motion, he must harbor a real concern that an innocent person may have been convicted”.

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Raniere’s Motion Is Based on What He Claims Is  “Newly Discovered Evidence”

Rule 33 of the Federal Rules of Criminal Procedure provides that “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires”.

The Rule further provides that such a motion for a new trial must be filed “within 14 days after the verdict or finding of guilty” unless it is “grounded on newly discovered evidence.”

When a Rule 33 motion is based on “newly discovered evidence” – which is what  Raniere has asserted in his case – it must be filed within three years of the verdict.

So, what exactly, is this “newly discovered evidence” that Raniere hopes will entitle him to a new trial.

Did he find out that he had a previously unknown twin brother who had been doing evil deeds in his name throughout Upstate New York?

Did Nancy Salzman admit that she had hypnotized him when they first met – and that he had simply been carrying out her orders for the past 20 years?

Did the crack medical staff at MDC discover a brain tumor that had been causing Raniere to act like a sociopath – and, having removed the malignancy, determined that he was now a true renunciate and ethicist?

Nope, nothing quite so dramatic.

Instead, what happened is that some of the witnesses in his criminal trial decided to join with other victims of the NXIVM cult/criminal enterprise – and filed a civil lawsuit against Raniere and some of his fellow deviants.

And, according to the assertion set forth in Raniere’s motion for a new trial, two of those witnesses  (Daniela and Nicole) perjured themselves during his trial when they said, under cross-examination by Raniere’s attorney, that they were not intending – at that point in time – to file any civil claims against him.

And so it is that the outcome of Raniere’s pending Rule 33 motion will hinge on whether he can persuade U.S. District Court Judge Nicholas G. Garaufis that:

• Daniela and Nicole did, in fact, perjure themselves during his trial;
• The government knew that Daniela and Nicole had perjured themselves during their testimony; and
• He would have been acquitted except for the perjured testimony.

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Government Filing Exposes the Weaknesses in Keith’s Case

In its response to Raniere’s motion for a new trial, the government resoundingly blew up all three of Raniere’s arguments in its latest filing.

To begin, it noted that his argument that Daniele and Nicole had committed perjury during the trial is based on the following exchanges:

RE: Daniela

AGNIFILO: You have a lawyer named Neil Glazer, correct?

DANIELA: Yes.

AGNIFILO: Because you are going to bring a civil lawsuit, aren’t you?

DANIELA: No.

 

AGNIFILO: You have no intention of bringing a civil lawsuit against Keith Raniere or NXIVM 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?

DANIELA: No.

 

AGNIFILO: So as you sit here today, you have no intention of bringing a civil lawsuit?

DANIELA: That’s right.

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RE: Nicole

AGNIFILO: And your lawyer, Mr. Glazer is here today, right? He is the gentleman, my colleague here to my left, right?

NICOLE: Yes.

 

AGNIFILO: Are you intending to bring a civil suit?

NICOLE: No.

 

AGNIFILO: No?

NICOLE: No.

 

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?

NICOLE: No.

 

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?

NICOLE: Okay.

 

AGNIFILO: Have you discussed with anybody else the prospect of bringing a class-action lawsuit against NXIVM?

NICOLE: No.

 

AGNIFILO: You haven’t discussed with Jay, for instance?

NICOLE: No. No.

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If you were expecting Raniere’s Rule 33 motion to be accompanied by several affidavits of people who are asserting that they talked with Daniela and Nicole about such a lawsuit, you’re going to be very disappointed.

All that’s in it is his barebones assertion that since they did sue him several months after he had been convicted on all charges, they must have been lying when, under oath, they testified they were not thinking about doing so.

As the government pointed out in its response: “Daniela’s and Nicole’s alleged involvement in the Civil Suit at most demonstrates that they changed their mind at some point between answering his counsel’s questions on cross-examination and the filing of the complaint in January 2020. That does not entitle Raniere to a new trial”.

And as the government went on to note: “Moreover, Raniere’s assertion that Daniela and Nicole lied about their intentions to sue Raniere defies common sense. Raniere urges this Court to conclude that, although Daniela and Nicole testified at length and in great detail about the most intimate details of their lives, the often embarrassing circumstances of their relationship with Raniere, and the anger they felt as a result, they were nevertheless unwilling to acknowledge that they intended to sue Raniere civilly — an admission that the jury would hardly have found surprising if it had been true. Indeed, as Raniere acknowledges in his motion, another government witness, Mark Vicente, testified that he had retained Glazer in connection with ‘potential civil matters’, and, unsurprisingly, that concession was of no consequence in the trial. Raniere’s counsel did not ask Vicente any questions on the subject, and Raniere’s counsel said nothing about Vicente’s plans in summation”.

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Similarly, the government points out that Raniere has offered no proof whatsoever that the prosecution attorneys knew – or should have known – at the time of the trial that Daniela and Nicole planned to sue him for civil damages.

“In pre-trial proffer sessions, the government did not ask Daniela or Nicole (or any other government witness) to describe their privileged conversations with their counsel about potential civil claims. Nor did the government inquire about the scope of Daniela’s and Nicole’s (or any other government witness’s) representation by Neil Glazer, beyond the information the government disclosed to Raniere pursuant to the Jencks Act, 18 U.S.C. § 3500. It would have been improper for the government to have done otherwise. Accordingly, at the time of Daniela’s and Nicole’s trial testimony, the government had precisely the same information Raniere and his counsel had, i.e., Daniela’s and Nicole’s testimony under oath that they did not, at that time, intend to file suit against Raniere. The government had at the time of trial, and has now, no reason to doubt the veracity of that sworn testimony”.

And then the government delivers the final punch that illustrates just how flawed Raniere’s argument is when it comes to the prosecution attorneys being aware of a planned civil lawsuit: “Raniere’s reasoning is, in any event, flawed. Contrary to Raniere’s repeated assertions, Glazer’s representation of Daniela and Nicole provides no insight into their intentions at the time of their testimony. Indeed, Raniere was forced to acknowledge as much after he filed his Rule 33 motion, when he learned that several witnesses who were also represented by Glazer during their pretrial meetings with the government — Crystal, Rebecca, Kristin and James — have at this time not joined the Civil Suit against Raniere”.

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Lastly, the government points out that the purported perjured testimony is not relevant in terms of Raniere’s conviction.

“Finally, it is inconceivable that Raniere ‘would most likely not have been convicted’ if Daniela or Nicole had testified that they were planning to sue Raniere civilly… At trial, Raniere essentially conceded that testimony on this point was irrelevant to his defense. Raniere’s motion acknowledges that the government’s Jencks Act disclosures reflected Glazer’s representation of some of the witnesses interviewed by the government”.

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Decision Should Be Forthcoming Soon

A ruling on Raniere’s motion is expected within the next few days.

A bit of free advice for Keith: You should focus more on trying to avoid all your fellow inmates who are coughing all the time rather than worrying about what outfit to wear when you walk out of MDC.

Keith Raniere has always loved to gamble…He’s just not very good at it.

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