[Editor’s Note: I miscalculated the amount of time that Keith Raniere was incarcerated before he went to trial: that was 15 months. It was another 16 months after his trial before he was sentenced. Appropriate corrections have been made to this post].
In the most recent post in this series regarding the various legal issues that Keith Raniere raised in his “Call To Action”, I addressed three questions regarding what happened to him in Mexico and immediately afterward:
First, was Keith illegally apprehended and expelled from Mexico?
Second, was Keith illegally arrested in the United States?
Third, was Keith illegally isolated from his family, friends and attorneys for almost a month before he was indicted?
After reviewing the relevant facts and circumstances regarding each of those questions, I concluded that the answer to each of those questions was “No” – and that none of the claims that Keith has raised concerning those matters will likely result in him winning on a Rule 33 motion for a new trial and/or on an appeal regarding his various convictions.
In this post, I will address two more of the claims that he raised in his “Call To Action” (To keep them in sequence with the prior questions, I will label them as the Fourth and Fifth questions):
Fourth, was Keith illegally indicted by a grand jury in the Eastern District of New York?
Fifth, was Keith illegally denied his request to be released on bail while he was awaiting trial?
Once I have addressed all the legal issues that Keith raised in his “Call To Action”, I will go back and address the various misstatements that are contained in that document. Although those misstatements will not have any impact on whether or not he will get a new trial, they do affect how people might respond to his various legal claims – and, as such, need to be addressed.
Was Keith Illegally Indicted by a Grand Jury in the Eastern District of New York?
In his “Call To Action” screed, Keith made the following statement:
“It took almost two months in total to indict me, during which there were grand jury hearings, and a lot of investigation. Shouldn’t a person be ready to be indicted if incarcerated? Shouldn’t the privilege of arresting by information be honored by the subsequent indictment being the first action the grand jury takes? If not, was the complaint sufficient?”
In order to fully respond to the issues Keith has raised in this claim, I need to review several aspects of our federal criminal justice system (As usual, I apologize to all of the Frank Report readers who already know all this stuff). So, let’s begin with some basics.
In terms of our federal criminal justice system, an “arrest” refers to the act of law enforcement officials taking someone into custody for the alleged commission of a federal crime. In this regard, there are three ways that an arrest can occur:
- Direct Arrest: A Direct Arrest occurs when a federal law enforcement official personally observes a suspect committing a federal crime – and takes the suspect into custody. In such cases, the law enforcement official is deemed to have “probable cause” to believe the suspect committed the crime in question because they saw the event take place.
- Arrest Warrant: In some cases, an Assistant U.S. Attorney (AUSA) will request permission from a federal judge to arrest a suspect who is believed to have committed one or more federal crimes. In such cases, the AUSA will prepare a “Complaint” that sets forth the allegations regarding the crime(s) for which the government wants to arrest the suspect – and present whatever evidence is available to support those allegations. Thereafter, if the judge determines that there is probable cause to believe that the suspect has committed the crime(s) in question, they will issue an “Arrest Warrant” for the suspect. This is exactly what happened at the outset of Keith’s case.
- Formal Charges Following A Grand Jury Indictment: Oftentimes, an AUSA will present evidence regarding the commission of a crime to a grand jury – and request that it issue an “Indictment” against the suspect. If the grand jury decides that there is probable cause to believe the suspect committed the crime, it will issue an “Indictment” (Once someone has been indicted, federal agents have the legal authority to arrest them). This is what happened after Keith had been arrested in Texas – and transported back to the EDNY.
If I correctly understand the above-cited portion of Keith’s “Call To Action”, he’s arguing that he either should have been indicted sooner after he was arrested and brought to the EDNY – or that there was insufficient evidence for an “Arrest Warrant” to have been issued on or about February 14, 2018.
As noted in a prior post, the Federal Prisoner Locator System first indicated that Keith was incarcerated at the Metropolitan Detention Center (MDC) on April 11, 2018. While it’s possible he arrived at MDC before that, it’s unlikely that it was more than a few days sooner. But, just to be as fair as possible, let’s assume for purposes of this post that Keith arrived at MDC on April 4, 2018.
According to court records, Keith was arraigned on April 13, 2018. Those same court records also indicated that the initial Indictment in his case was issued on April 19, 2018.
Thus, contrary to Keith’s claim, it did not take “almost two months to indict [him]”. On the contrary, it took less than a month to indict him after he was arrested in Texas on March 25, 2018 – and only two weeks, at most, after he arrived at MDC.
In sum, Keith was properly arrested on March 25, 2018 based on an “Arrest Warrant” that had been issued on or about February 14, 2018. Thereafter, he was transported to MDC – and properly indicted on April 19, 2018.
Based on these facts and circumstances, I do not believe that Keith will get a new trial – either via a Rule 33 motion or an outright appeal – with respect to the issues he has raised regarding the legal basis for his arrest and/or the timeliness of his indictment. Simply put, there is no “there there” with respect to those issues.
Was Keith Illegally Denied His Request to Be Released On Bail While He Was Awaiting Trial?
In his “Call To Action”, Keith made the following statement:
“For a bail package, my attorneys offered two armed guards with a supervisor (guarding me 24/7), in a well-vetted apartment, all overseen by the former head of the Secret Service who appeared at my bail hearing to affirm this. I would also wear an ankle monitor and only have contact with my attorneys. Additionally, we posted a $10 million bond. My bail application was denied.”
Although he did not directly make such a statement in his “Call To Action”, Keith clearly implies that the denial of his proposed bail package was at least inappropriate – and more likely a denial of his due process rights. So, let’s take a look to see if that’s true.
On June 5, 2018, Keith’s attorneys did, in fact, present a bail package that was very similar to what he outlined in his “Call To Action”. The exact components of the proffered bail package were as follows:
- Keith would sign a $10 million bond that would be backed by the assets of others;
- Keith would surrender his passport – and his travel would be restricted to locations within the EDNY and NDNY;
- Keith would be confined to a residence to be selected by a private security company – and would be subject to both GPS monitoring and round-the-clock supervision by two armed guards;
- Keith would have access to a computer but the computer would lack internet access and would be used only to review materials regarding his case;
- Keith would have access to a cell phone but the phone could only be used to make calls to – and receive calls from – telephone numbers that were approved by the U.S. government; and
- Keith would not have contact, outside the presence of his counsel, with any of his co-defendants, his alleged co-conspirators, and/or any other current or former affiliate of NXIVM/ESP or any affiliated entity.
Under 18 U.S. Code 3142, a judge has four (4) options to choose from at a defendant’s detention hearing. Those four options are as follows:
- To release the defendant on his personal recognizance or upon execution of an unsecured appearance bond;
- To release the defendant on a condition or a combination of conditions;
- To temporarily detain the defendant to allow for the revocation of a conditional release or deportation; or
- To detain the defendant.
At the conclusion of Keith’s detention hearing on April 13, 2018, the then-presiding judge – U.S. Magistrate Judge Steven L. Tiscione – chose Option 4: to detain him until further proceedings in the case. Thus, the purpose of the prosed bail package that Keith’s attorneys presented on June 5, 2018 was to get the new presiding judge – U.S. District Court Judge Nicholas G. Garaufis – to reverse the decision that had been made at Keith’s detention hearing.
After reviewing the charges pending against Keith – and the circumstances surrounding his case – Judge Garaufis rejected the proposed bail package and ordered that Keith be retained at the Metropolitan Detention Center (MDC).
In announcing his decision, Judge Garaufis indicated that he considered Keith to be a “flight risk” despite all the components of his proposed bail package. The judge also indicated that because he had concluded that Keith would be a “flight risk,” there was no need for him to consider whether Keith would also pose a danger to the general public if he were released.
Keith’s attorneys filed a second motion for him to be released on bail on November 14, 2018. In doing so, they basically proposed the same components as the first bail proposal with a few minor changes (e.g., he would be confined to his residence in Clifton Park, NY; three specific properties would be used to secure the bail bond, etc.).
In rejecting the second bail bond motion, Judge Garaufis once again concluded that despite all the pledged assets and promises, Keith would still be a “flight risk”.
Finally, on January 25, 2019, Keith’s attorneys filed a third motion to have him released on bail until the start of his trial. This time they added one new component: i.e., an unnamed third-party who would post $300,000 as part of the proposed $10-million bond.
Once again, Judge Garaufis denied the motion on the grounds that Keith was a “flight risk.” There were no further motions for bail before Keith went to trial in June 2019.
So, did Judge Garaufis do anything illegal in thrice denying Keith’s request that he be let out of MDC pending the outcome of his trial?
No, he didn’t.
Nor did the three denials amount to a denial of due process under the current rules and standards for such matters.
But therein lies the problem.
How can anyone who is facing criminal charges be expected to prepare for trial when they are incarcerated – especially when they’re incarcerated in a place like MDC?
In reality, pre-trial detention makes it extremely difficult for any defendant to adequately prepare for their trial.
In addition, being incarcerated in a place like MDC also debilitates a defendant – both emotionally, mentally and physically.
Keith Raniere was incarcerated at MDC for almost 15-months before he went to trial.
And while he was there, he was beaten up by fellow detainees several times, subjected to an inferior diet and horrible living conditions, not allowed access to any sunlight, and routinely derided and ridiculed by many of the guards at the facility.
Unfortunately for Keith, there is little chance that his pre-trial incarceration will be enough to earn him a new trial via a Rule 33 motion or an outright appeal of his conviction.
That’s because the current law of the land is that any federal defendant can be subjected to pre-trial incarceration if the presiding judge in their case deems them to be a “flight risk” or a threat to the general public.
Such decisions can be very subjective – and worse yet, they can be papered over with numerous citations to previous cases in which pre-trial bail was denied to the defendant.
In my opinion, the rules and standards regarding pre-trial detention should be changed so that judges are required to set conditions that would allow a defendant who is facing charges that do not involve violence – and who has no criminal history – to be set free before they go trial (I would still allow judges to deny bail to defendants who were charged with crimes of violence or certain designated crimes, who had a prior criminal record, or who would pose a danger to the general public or to a prior victim. In this regard, I would allow Congress to designate certain crimes as requiring pre-trial detention: e.g., sex trafficking, terrorism, etc.).
Surely, a federal judge could come up with some combination of conditions that would mitigate whatever risk of flight 99.9% of prisoners might pose.
Instead, we still have judges refusing to grant bail even when the proposed bail package would seem to minimize any chance of flight.
Given our existing ability to track people and their communications, there is little chance for a released defendant to slip away unnoticed.
And we could certainly set penalties for those that do try to escape that would deter most from even thinking about doing so: e.g., a separate penalty of 5-years that could not be served concurrently with any penalty related to the original crime(s) the defendant was facing; immediate detention and the loss of any credit for time-served prior to trial or pleading; etc.
We could also get creative and start offering released defendants an incentive to stay within their jurisdiction: e.g., an automatic reduction in whatever sentence was eventually meted out to those who are found guilty or who plead out; a “credit” of one-half day towards their ultimate sentence for those released defendants who are subject to home confinement; etc.
Or how about offering those who have been released a range of assistance and services that might make it easier for them to eventually transition back into society: e.g., counseling, education, substance abuse treatment, vocational training, etc.
Unfortunately for Keith, I do not believe that he will get a new trial – either via a Rule 33 motion or an outright appeal – with respect to the issue he has raised regarding the denial of pre-trial bail.
I do, however, believe the fact he was forced to be incarcerated at MDC for 15-months before the start of his trial was unfair and unreasonable – and should be considered as a denial of his right to due process.
Stay Tuned as We Consider Keith’s Other Claims
In the next post in this series, I’ll evaluate some more of the claims that Keith put forth in his “Call To Action”. When I’m done doing that – and I’ve also reviewed the various misstatements and unsubstantiated claims set forth in that document – I’ll review the various assertions and claims that Suneel Chakravorty has put forth on behalf of Keith and why he thinks Keith is innocent.
All in all, I’m glad that Keith’s “Call To Action” was made public because that is why we’re now able to review his various claims – and to determine whether we think any of them are valid.