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
********************
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.
********************
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.”
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.
********************
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.
[…] during the course of Keith’s case that were so important that they warrant a new trial (See: What Are Raniere’s Remaining Legal Options to Ever See Freedom Again? for a more detailed description of these two […]
[…] What Are Raniere’s Remaining Legal Options to Ever See Freedom Again? […]
Do not forget Vanguard’s mental agility can affect the weather and technology. If he ” downloads” a new module to a guard or a fellow prisoner, maybe even to a bed bug or a mouse, Keith could short out every security measure in the building.
And simultaneously use his brain to make an enormous snow storm. Then he could just open his cell door and limp over to his “wife” Nicki’s apartment under the cover of blinding white swirling drifts.
Wait! Why hasn’t Keith done this already?! And it just occurred to me! His supernatural powers are probably why his bail package was denied… Once again, discrimination based on being a genius leader of a philosophical movement.
Will it never end?!
What did this have to do with the article? We get it, you like making fun of the guy. Now let’s show some respect to the other readers instead of turning it into a schoolyard muck-up.
To Nxivm 5 & K.R. Claviger,
My suggestion is for the Nxivm 5 to pay K.R. Claviger a retainer.
Clearly, by the following statement from K.R. Claviger, he is willing to entertain the idea of reviewing the case.
—I do not intend to review the entire court record because my objective is not to ascertain whether there is any chance for a winning appeal or for a successful request for a new trial. Instead, I am reviewing the specific claims that Keith Raniere has made in his “Call To Action” – and determining if any of those claims might be the basis for a successful appeal or for a successful request for a new trial.
Money talks and bullshit walks. The Nxivm 5 should pay Claviger a retainer to review the case.
Claviger, if nothing else, is one of the few attorneys with moral integrity and a respect for real justice. Read up on him or her.
Here’s the thing I don’t understand about the NXIVM true-believers’ position about the supposed gross miscarriage of justice here…
“Vanguard” is supposedly the smartest human on the planet, probably who has ever walked the earth. His “technology” for handling human psychology is the most powerful ever even conceived, let alone implemented.
Why did he not represent himself in court? Certainly in the time between him being charged and eventually standing trial, he had plenty of time to apply his world record IQ to teaching himself all relevant law, precedent and court procedure to run virtually infinite rings around the greatest team of prosecutors the feds could assemble. If his exalted wisdom determined that hired legal counsel would have some value to him (though it could only pale in comparison to his blinding genius), he would, by definition, pick the best available in the USA.
Why hadn’t Vanguard already attracted the greatest legal minds to study under him in NXIVM?
Why didn’t Vanguard author any of his legal motions? Why didn’t Vanguard cross-examine any witnesses? Why didn’t Vanguard testify in his own defense since no prosecutor could even begin to compete with his brilliance? Why didn’t Vanguard present beyond-genius opening and closing arguments? Why hasn’t Vanguard written the most convincing appeals ever known in the history of human law?
How is it even possible that Vaguard’s genius, ethics and tech were brought down by third-rate idiotic haters?
If Vanguard is in jail because his ethics were so threatening to the evil doers of the world, anyone who hasn’t already been convicted is no real threat to those evildoers.
If Vanguard is who he claims to be, there is no hope that he will ever walk the earth freely again and, indeed, there is no hope for humanity at all.
I look forward to what he will bring up in hindsight in his own defense.
I think that Keith’s best chance of tasting freedom again, might be when he drops the body to be greeted by a grinning, spectral, spectral, L Ron Hubbard.
“If you’d done it right you’d have made as much money as me.”
“What Is, Keith?”
Right. And if “the tech” and all the little gender groups that supposedly teach you to be brave, strong, etc. Why were they such cowards about testifying? If they hadn’t done anything illegal they had nothing to fear. Nothing. And absolutely nothing could stop me from testifying for an innocent person facing life in prison. Not. One. Thing. Now, what if it was the most important person in the world to me? Hmmm… Yep. Again. Nothing would stop me. Times 1000. So it seems Nxivm made them less brave, strong and upholding than an average non Nxium citizen. And that’s on them. No one else. And they do not seem to care at all about justice for Allison. Or Clare. Nor any of their other dear Nxivm community. If this is all a prosecution based on lies. Why not one dance or tear or really lengthy analysis to support the other defendants’ “justice”. Is it all injustice they care about? Or just Keith, Keith, Keith?
Excellent points.
I don’t think it’s really about this thing called “Keith.” It’s about the narcissistic sycophants whose egos are bruised by proxy when the fool they celebrated as “The Smartest, Most Ethical Man Alive™” is sent off to spend the rest of his life trying to avoid being turned into a human sex doll and corpse.
Nxidvmdvm. I think you are really on to something. This is the most insightful theory about what motivates the ride or die cult members who remain outspoken followers. Ego. Yes. That tracks! There is also that “pot committed” dynamic. I think it can keep gamblers at the table? If I understand the term correctly. Imagine having wasted all those years, the money, outside relationships, career, starting a family, and so on. All for a charlatan pedophile. It’s a lot to face without humility, honesty and bravery. Just the yummy snacks & masturbating alone those women lost out on for years and years sucks!
KR, the indictment is posted on Courthouse News. Spells out predicate acts, if you can post a link for everyone. Simple google search, “nxivm indictment. “
We’ll post the ORIGINAL INDICTMENT, the FIRST SUPERSEDING INDICTMENT, and the SECOND SUPERSEDING INDICTMENT shortly.
I don’t need that. I already have everything on my computer.
KR, do you have a link to the original indictment?
Here is a link to a March Second circuit decision explaining RICO:
https://casetext.com/case/halvorssen-v-simpson-1
My hunch is, as this was a pyramid scheme, it was based on ongoing continuity.
If I remember, a “predicate act” is also simply denying someone the intangible right to honest services.”
Legally, it’s a fascinating case. I wish I were there.
Is there a witness list?
The defense didn’t call any witnesses???
You’ve got a few things mixed up here. Let me try to straighten them out – and please re-ask if my attempted explanation isn’t clear.
A RICO case does not have to include a pyramid scheme – or, for that matter, any particular crime. It just has to have an ongoing pattern of criminal behavior: e.g., a group of people who get together to rob banks could possibly be charged under the RICO statute after they had committed several bank robberies over a period of time.
The “predicate act” you cite – i.e., “denying someone the intangible right to honest services” – would probably be relevant in certain types of RICO cases – e.g., an elected official who accepted bribes from a lobbyist over an extended period of time. But, just about any felony could be a predicate act in a given case (Look at the array of predicate acts in Raniere’s case).
We will put together a list of all the witnesses that appeared for the prosecution.
The defense did not call any witnesses.
I know it doesn’t need to be a pyramid. I’m just saying the statute delineates between open and closed predicate acts. Since it was a pyramid, constantly feeding off new talent, it was open and continuous.
Sorry, I missed the nuance that you were trying to point out. And “Yes”, I agree that because NXIVM/ESP operated as a pyramid scheme, it was constantly bringing in new members who could have gotten caught up in some of its illegal activities.
I believe you’re helping me make my point. The defense did not call any witnesses. One explanation for this is that people who would have naturally testified helping Raniere were lawyered up and advised to plead the 5th or cooperate with prosecution because of the RICO charges. This seems to be a federal prosecution technique to prevent a reasonable defense by bullying the would be supporters. How can this RICO tool be considered fair or just?
As I said at the outset, I have raised numerous questions concerning how the Feds handled Keith Raniere’s case – including whether he should have been charged under RICO, whether the judge should have allowed testimony regarding activities that were not part of the charges, whether what Keith was convicted of constituted sex trafficking, whether a 120-year sentence is fair and reasonable, etc., etc., etc.
The point you are raising is certainly valid: the Feds definitely abuse the RICO statute by using it to intimidate potential defense witnesses, to get around statute-of-limitations issues, to threaten defendants with lengthy sentences, etc. So, you and I are on the same side on this issue.
Notwithstanding the above, what I want to do with my current series of posts is address only the legal issues that Keith Raniere has raised in his “Call To Action”. Thus, I won’t be addressing lots of other issues in this series.
Why is Nancy Sleazeman getting a free ride on this site? If you listen to a recent podcast that Susan Dones did with Roberta Glass she asserts that Nancy is a dirty abuser too.
K.R. Claviger, you are obviously well versed about law and have good writing skills. Thank you for laying out the specifics of the legal options. Maybe you can clear up why you and others call the organization a criminal organization verses saying that the people involved did criminal activity. I was involved in the organization and was never directed to do anything criminal and I never engaged in criminal activity. If Amazon executives break the law, does that make Amazon a criminal enterprise and how do you know if the government is using RICO in an unethical way just to get to Raniere at the expense of everyone else now being labeled criminals just because they participated in running Amazon?
This is a great question that you have raised — and, even though it’s not one that Keith has raised in his “Call to action”, I’ll be happy to answer it.
Under the 1970 Racketeer Influenced and Corrupt Organizations (RICO) Act, an enterprise is defined as any legal or illegal ongoing business or group that is used as a base for criminal activity. In the context of RICO, criminal activity is broadly defined — and many felonies will suffice for establishing liability if they were conducted as part of an enterprise and pattern. An enterprise can be any individual or group that commits these crimes. The pattern is two or more felonies committed within a 10-year period (excluding any periods of imprisonment of the defendants).
While I may have some questions about whether Keith was properly charged under RICO, he has not raised that as a potential issue in a request for a new trial or an appeal of his conviction. If/when he does, I’ll address the issue in more detail.
That means every bank in the country as well as Congress are RICO enterprises.
Well, before I could agree or disagree with you, I would have to know the specific crimes that you apparently think that banks and Congress are committing.
Unlike Claviger, I will provide a responsive answer. Perhaps there wasn’t enough evidence to charge you, perhaps you weren’t even aware of the criminal activity. NXIVM was found to be guilty of RICO fraud by a jury, but that doesn’t mean every single person who was involved in NXIVM committed crimes. Does that make you feel better, Patrick?
“NXIVM was found to be guilty of RICO fraud by a jury…”.
Really? I wasn’t even aware that NXIVM was a named defendant in the EDNY case.
If you’re not too busy insulting other Frank Report readers – or commenting on every post – maybe you’ll have time to point out exactly where the jury reached that finding regarding NXIVM.
For KAR to get out of jail may only add to his enslavement [to his appetites].
The only real freedom is happiness — which can be had anywhere.
Keith can be free but it would mean actually living some of the teachings he so adroitly plagiarized.
In my eyes, Raniere’s sins don’t fade. At the same time, I’m interested in his arguments, his supporters’ arguments, and the relevant explanations, all of which are questionable.
I think Judge Garaufis is completely biased. In my opinion, he has too many rules of how a man should behave and he didn’t do his job correctly by looking at the real data in the trial without his own filters.
I agree, the judge exposed his disintegrations throughout the trial and should pay for a series of EMs.
In some of the recorded calls from jail Raniere sounded jaded about Agnifilo and somewhat critical of him. He could find other attorneys, but no such moves from Raniere have been heard about or leaked to the press. Maybe Agnes knows too much by now, like Samantha’s rotten neighbor on Bewitched.
Some assets that the imprisoned perv-boy might’ve had on tap seem to be frozen, and also, he has to meet some monetary punishments, etc. Some say that Raniere has a lot of money. Some speculate that he doesn’t. At least Nancy Salzman can say that right now she lives in a bigger house than her (supposedly) former breakfast bubba, Wet Kisses, will ever live in again.
When Raniere has been recorded talking recently, as has been provided here, he sounded a lot like a petulant spoiled brat, nonspecifically bitching and carping and mentally disorganized. He has already been incarcerated for a considerable amount of time and is sounding more like a dwarf locked up in a filthy bubble in outer space with skinheads and scabies. He has been a drama queen, he has faceplanted himself in his own overflowing piss, and the dudette has lost a lot of eyeglasses as well. Conversationally, he seemed to ignore even mentioning his financial and/or sexual screwups, not even an itty-bitty. It’s as though his head was rammed up his hind-end deeply enough to blind him with his massive, constipated denial. What has he got left but years of leisure time trapped with his favorite person?
His chances are none. He has become irrelevant. No longer has he the privilege of extreme wealth to aid him in his cause. He will file an appeal just like any other domestic convict – which, in turn, will never be heard.
It is impossible to comment on the chance of an appeal without seeing the entire record.
I would personally love to see the cross of LS that was stopped.
Winning on appeal is extremely difficult, but as the Lotto ads used to say, ” Hey–ya never know.”
I do not intend to review the entire court record because my objective is not to ascertain whether there is any chance for a winning appeal or for a successful request for a new trial. Instead, I am reviewing the specific claims that Keith Raniere has made in his “Call To Action” – and determining if any of those claims might be the basis for a successful appeal or for a successful request for a new trial.
I believe that the I justice in this trail is significant. I am not sure which option is best at exposing the injustice – appeal or new trial
Susan Dones has an interview with Roberta Glass and reveals some NXIVM tidbits: https://www.youtube.com/watch?v=fWKFImlAFy8
One of the things Susanne reveals is that Nancy Salzman once felt her up while she was driving in a car. She thought it was an assignment by Keith.
I have been waiting so long for legal opinion on his matters raised. I look forward to it and have made a decision to absorb it with an open mind regardless of whether it’s what I want to hear or not. It will be interesting either way.
Klaviger is scraping the bottom of the barrel, doesn’t she have anything else to do?
If she is paid properly for it, she has nothing better to do than that. Who has anything against paid work?
Do you know K.R. Claviger? I think these are bad times for lawyers during the pandemic. It’s kind of because of the general bad economy that’s hitting lawyers, too.
Said the man who spends an inordinate amount of time reading the Frank Report – and writing derogatory and mean-spirited comments.
As we move towards 2021, I’m not sure which illness I’m more anxious to see go away: COVID-19 or Scott Johnson. Both have been disruptive and cruel throughout 2020. And, as far as I know, neither has done anything good for anyone.
Well said.
That is very good (and similar to English law too). I don’t think he has much chance.
Also, it is classic of cults to keep trying to litigate and litigate on and on as do some religious zealots rather than take good advice that it is too late. If he had all this great evidence of tampering he thinks he has, he would have raised it well before the trial. The fact he brings it up now shows it is just smoke and mirrors.