Suneel Chakravorty recently posted a list of forty-four (44) legal questions egarding Keith Raniere’s case that he and his colleagues are currently examining in their quest to obtain a new trial for Keith (See: Suneel: My Plan to Show the World What Really Happrened to Keith Raniere).
In future posts, Suneel will be presenting whatever “evidence” he and his colleagues are able to find regarding each of those questions.
At Frank’s request, I have agreed to serve as a “Devil’s Advocate” regarding Suneel’s recent and future posts.
As the first step in that process, this post will list each of Suneel’s questions – and provide my initial thoughts about them. After Suneel provides the promised “evidence” regarding each of those questions, I will provide a more detailed response.
At the outset, let me make it clear that I do not consider several of Suneel’s 44 questions to involve any legal issues. Some involve moral issues, some involve philosophical issues, and some I have interpreted as rhetorical questions.
Let me also remind Frank Report readers that at this stage, Keith and his attorneys have very few options in terms of seeking a new trial: i.e., they can either make another Rule 33 motion, which would require them to identify “newly discovered evidence” that was previously unavailable – or they can file an appeal, which would require them to identify one or more errors that occurred 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 options).
If Keith’s legal team failed to raise an issue before he was convicted, they cannot raise that issue as part of an appeal. And given the quality of that legal team, I doubt there is any chance that Keith will be able to successfully argue that he had “ineffective counsel”.
Suneel has indicated that he is “…willing to listen to anyone with evidence to prove or disprove Keith’s innocence”.
Like Suneel, I am undertaking this new work with an open mind – and am quite willing to adjust my opinion and thinking if/as the evidence presented makes it appropriate to do so.
Like most people, I have built up my own biases, opinions, preferences, values, etc. over the years because of my own personal experiences.
Even though some of those may show up in my initial thoughts about the various questions being examined by Suneel and his colleagues, I am confident that I can set them aside as I examine the evidence to be produced regarding those questions (If I fail to do that, I am even more confident that one or more Frank Report readers will be quick to point out where I have not done so).
So, without further ado, let’s take a look at the 44 questions…
1. How does Keith’s 120-year sentence compare to other cases?
I think it’s going to be very hard for Suneel and his colleagues to find many cases that are comparable to Keith’s case in terms of the charges he was facing. And I will be surprised if they will find many cases that resulted in a sentence of 120-years or more.
Suneel and his colleagues may think that something is amiss if they can’t find any similar cases and/or any similar sentences. I don’t think that’s necessarily the case.
The 120-year sentence may seem mind-boggling to many people. But Judge Nicholas Garaufis was very careful to document every element that led him to render that sentence – and, unlike the sentence he meted out to Clare Bronfman, he stayed within the applicable sentencing guidelines on Keith’s sentence.
It would not shock me if the Second Circuit Court of Appeals decided to reduce this sentence.
Bur rather than set a new sentence, the Second Circuit would simply send the case back to Judge Garaufis with a recommendation that he reconsider certain aspects of his calculations.
2. Was the evidence presented by the prosecution fact-driven or sensational or emotional?
This question does not really involve any legal issues.
Given the charges in this case – and the alleged activities concerning those charges – it would not surprise me at all if Suneel and his colleagues conclude that at least some of the evidence presented by the prosecution could be labeled as “emotional” and/or “sensational”.
When you’re dealing with alleged crimes like Sex Trafficking – and with alleged underlying acts like Sexual Exploitation of a Child and Possession of Child Pornography – it’s almost guaranteed that you’ll be dealing with evidence that could be considered to be “emotional” or “sensational”.
This wasn’t a case that involved relatively mundane crimes like embezzlement or bribing a public official. Instead, it involved alleged crimes that include obscene and salacious details.
And just because some of the evidence that was introduced by the prosecution may be “emotional” and/or “sensational”, that will not be enough to warrant a new trial for Keith.
It should also be noted that Keith and his attorneys cannot just raise a general complaint about an issue like this. Instead, they will have to identify specific instances where they believe that Judge Garaufis erred by allowing in evidence whose probative value was outweighed by its likely prejudicial impact on the jury.
3. Was the evidence against Keith strong or flimsy?
Given that Keith faced a total of seven (7) charges – and sixteen (16) underlying predicate acts with respect to the Racketeering charge – I would expect there to be quite a variation in terms of the “strength” or “flimsiness” of the evidence that was presented by the prosecution throughout the trial.
It doesn’t really matter whether the evidence of an alleged crime was “strong” or “flimsy”. It just matters whether it was sufficient, in the aggregate, to prove that the defendant did/did not commit each required element of each alleged crime “beyond a reasonable doubt”.
Everything beyond that point is irrelevant.
Once again, it should also be noted that if Keith’s attorneys did not raise an issue about – or make an argument against – the admission of certain evidence, they cannot do so on appeal.
4. Was Keith condemned for alleged moral deviance or actual crimes?
I understand why Suneel and his colleagues are concerned about this issue.
As I see it, however, the problem they’re going to have to overcome is that since some acts can be both a “moral deviance” and a “crime”, it will be difficult – if not impossible – to answer this question with any certainty.
To really answer this question, you would need to be able to look into the minds of the twelve jurors who found Keith “Guilty” on all seven charges he was facing – and who also found that the prosecution had “Proved” that he committed all sixteen underlying acts with respect to the Racketeering charge. Unless Suneel and his colleagues are able to interview the 12 jurors, I don’t think that will be possible.
5. How can there be sex trafficking if there was no money exchanged?
I can probably save Suneel and his colleagues some time and effort on this one.
Per 22 USC § 7102, the term “sex trafficking” means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act – and the term “commercial sex act” means any sex act on account of which anything of value is given to or received by any person (That term “anything of value” has been construed to mean all kinds of tangible and intangible things besides money).
Thus, even if they can prove that no money was exchanged – which I think they probably can do – that doesn’t mean that Keith was not properly convicted of the crime of Sex Trafficking.
6. Was the element of “coercion” met in the sex trafficking charge?
Although Suneel’s question implies that “coercion” is a necessary element of the crime of Sex Trafficking, the applicable statute actually reads “force, fraud or coercion”.
As noted above, the term “sex trafficking” means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act – which means that there is no requirement that coercion be involved in order for someone to commit that crime.
By the way, the term “coercion” is defined to include actual or threatened serious harm – which, in turn, is defined to include physical, psychological or reputational harm to oneself or another. Thus, even if coercion were a required element for this crime, it will be difficult for Suneel and his colleague to produce evidence that will show it didn’t occur.
7. Was the element of “intent’ met in the sex trafficking charge?
I’m not exactly sure what legal issues, if any, are related to this question.
It’s possible that Suneel and his colleagues are thinking about the difference between crimes that require “general intent” – and those that require “specific intent” (General intent simply means that the defendant intended to commit the prohibited act – whereas specific intent means that the defendant intended to cause the harm or the result that occurred).
I look forward to reviewing whatever evidence Suneel and his colleagues are able to produce regarding what Keith’s intent was with respect to this alleged crime.
8. What is Blackstone’s Ratio and should we uphold it?
This question obviously does not involve any legal issue but more a philosophical or moral one. Nevertheless, I look forward to seeing what evidence Suneel and his colleagues produce with respect to this one.
9. How does the 97% US federal conviction rate compare with fascist regimes?
This question obviously does not involve any legal issue – but it will be interesting to see what Suneel and his colleagues have to say about it.
In this regard, our discussion will require us to be very specific about the statistics we cite.
Based on the most recent statistics published by the Pew Research Center, 90% of the approximately 80,000 individuals who were indicted on federal charges in 2018 – which is when Keith was indicted – 90% pleaded guilty, 8% had the charges dismissed, and 2% went to trial. Of those who went to trial, 83% were found guilty. Thus, Keith was one of the 1,600 federal defendants who decided to go to trial – and one of the 1,328 who were found guilty.
I do not find any relevance in comparing the statistics of the U.S. criminal justice system with those of some unnamed fascist regime. Nevertheless, I look forward to seeing what evidence Suneel and his colleagues produce regarding this issue.
As most Frank Report readers know, I am extremely critical of many aspects of the U.S. criminal justice system. I believe, for example, that legislatures criminalize too many activities; that prosecutors often overcharge in order to gain leverage in plea deal negotiations; that pre-trial detention should be limited to those who have been charged with crimes involving violence and those who have previous convictions involving violence or prior incidents of flight; and that many convicted defendants are sentenced to excessive amounts of time in prison.
But I also deal with the reality that regardless of my personal views, the U.S. criminal justice has certain operational rules and norms that affect anyone who is charged with a crime. My plan in dealing with this issue is to focus on “what is” – and not on “what I think it should be”.
10. Should someone who is hated be treated the same under the law as someone who is loved, and did that happen in this case?
Once again, this question does not really involve any legal issue. Nevertheless, I will be happy to share my perspective once I see what evidence Suneel and his colleagues produce regarding it.
11. Could any of the charges against Keith be considered “victimless crimes”?
Another question that does not involve any legal issue but one that can certainly provoke some interesting discussions.
In my experience, there is little, if any, consensus in terms of what constitutes a “victimless crime”. In addition, not all crimes require a victim.
Some people consider some/all of the following to be “victimless crimes”: drug abuse, prostitution, gambling, public drunkenness, vagrancy, obscenity, riding a bike without a helmet, or driving a motor vehicle without a seat belt.
I don’t consider that to be the case with regard to the seven crimes that Keith was convicted of committing: i.e., Racketeering Conspiracy, Racketeering, Forced Labor Conspiracy, Wire Fraud Conspiracy, Sex Trafficking Conspiracy, Sex Trafficking, and Attempted Sex Trafficking – and I will be interested in seeing whether Suneel and his colleagues can produce any evidence that will convince me otherwise.
To the extent they can do that, it will certainly affect my assessment of the appropriateness/inappropriateness of Keith’s 120-year sentence.
12. How is jury nullification relevant to Keith’s case?
This is another question that doesn’t really involve any legal issue that could lead to Keith getting a new trial.
Nevertheless, I was somewhat surprised that Keith’s attorneys didn’t at least raise this concept during their “Closing Statement” because I think it’s something Keith believes in. But now that the trial is over – and the jury has rendered its verdict – I don’t really see how this concept is relevant anymore.
13. How was the attempted sex trafficking of Jaye proven without India Oxenberg or Allison Mack testifying?
I’m not quite sure what legal issue Suneel and his colleagues intend to raise via this question. For now, let me just note that, in general, there are two primary types of evidence that can be introduced at a trial: direct evidence and circumstantial evidence (Evidence can be further broken down into various categories: documentary evidence; physical evidence; trace evidence; etc.)
As its name implies, direct evidence is evidence that directly links a defendant to a specific crime without the need for any inference on the part of the jury (e.g., an eyewitness who saw a defendant shoot someone).
Circumstantial evidence is evidence that implies the defendant committed a specific crime (e.g., an eyewitness who saw someone fleeing the scene where someone was shot).
I look forward to reviewing whatever evidence Suneel and his colleagues are able to produce which indicates that Keith could not have been convicted of Sex Trafficking Jaye without direct testimony from Allison Mack and/or India Oxenberg.
14. Should a mysteriously accessed device in the child porn charge be admitted as evidence?
I am looking forward to seeing any evidence that Suneel and his colleagues can produce to demonstrate exactly what happened to the hard-drive that contained the nude pictures of the 15-year-old Camila.
During the trial, an FBI witness admitted that this hard-drive had been accessed by an unknown person after it was taken into custody by the agency. But insofar as I can recall, neither that witness – nor any witness for the defense – testified as to what exactly, if anything, was done to this hard-drive after it was accessed by the unknown person.
Keith’s defense team cross-examined the FBI agent – and presumably asked all the questions about the hard-drive that they thought were relevant.
In addition, I believe that Keith’s defense team had identified an expert witness who was going to testify for the defense about this matter – but that person was never called as a defense witness.
[Sidenote #1: It’s difficult for me to understand how any type of evidence that is in the FBI’s possession can be accessed by an unknown person. Don’t they have security cameras, sign-in sheets, and the like to prevent this type of thing from happening?].
[Sidenote #2: It’s too bad that Rodger Kirsopp and his colleagues at the NYS Police destroyed John Tighe’s computers before they could be subjected to a forensic analysis. It would have been interesting to find out whether those computers were also accessed by an unknown person after they were taken from John].
15. What is Camila’s new role in the case?
Maybe this is a more complicated question than it appears – but, insofar as I know, Camila’s only role in the case began and ended with the reading of her “Victim Impact Statement”.
She was not called as a witness by the prosecution. Nor was she called as a witness by the defense.
Under our current laws, victims who wish to give a statement at a convicted defendant’s sentencing hearing are not required to do so under oath. Nor are they subject to cross-examination by the defendant’s attorney.
Simply put, I don’t think Camila has a “new role in the case” – and her statement at Keith’s sentencing hearing did not violate any of his legal rights.
16. What if the tampering is proven and Camila is also telling the truth?
I assume that Suneel and his colleagues are using the term “tampering” to mean that something was done to alter the nude pictures of Camila (e.g., the scar from her appendectomy was photoshopped out) – or to change the “date-stamp” on them.
If that’s correct and they’re able to prove that there was tampering, then it’s possible that “Possession of Child Pornography” – which was one of the 16 predicate acts regarding Count 2: Racketeering – might be dismissed by an appellate court. I doubt, however, that such a dismissal would be enough to overturn Keith’s conviction on that count or to change his overall sentence.
I’m not quite sure how Suneel and his colleagues will be able to determine whether Camila was telling the truth. Nor, since she didn’t appear as a witness at the trial, am I sure how that’s relevant to Keith’s appeal.
17. What are the ramifications of the judge stopping Lauren Salzman’s cross-examination?
I have said from the outset that this could be a serious appellate issue – and I clearly expect it to be one of the central issues in Keith’s appeal.
I don’t know how it would be possible to produce any real “evidence” to show what would have happened had the cross-examination of Lauren been allowed to continue – but I fully expect Keith’s appellate attorneys to argue that Judge Garaufis should have granted Marc Agnifilo’s motion for a mistrial regarding this issue.
At the time of this incident, Marc Agnifilo said “Your honor, I agree this witness is in serious distress. I still have questions for her, so perhaps we can adjourn for the evening and I can continue tomorrow”. When the judge responded by saying “You’re done”, Agnifilo responded by saying he agreed.
The next morning, Agnifilo did not ask that he be allowed to continue cross-examining Lauren (I have been told that she was available that morning – and ready to re-take the stand). Instead, he moved for a mistrial.
Had Agnifilo asked for Lauren to return to the witness stand so he could continue his cross-examination and Judge Garufis had turned him down, I think this could be a very significant issue on appeal. But given what actually happened, I’m not quite as sure.
18. Should Lauren have been recalled or was it better to go for a mistrial?
This looks to me like a question that should be directed to Marc Agnifilo and Keith’s other trial attorneys because it was their decision (a) to file a motion for a mistrial and (b) to not seek to recall Lauren to the witness stand.
By the way, the two actions are not mutually exclusive.
There were all sorts of options available to Keith’s trial attorneys after Judge Garaufis halted Lauren’s cross-examination.
They could have filed a motion for a mistrial – and then sought to recall Lauren to the witness stand (If Judge Garaufis refused to let Lauren back on the stand, that might have been the basis for another motion for a mistrial).
Or they could have sought to recall Lauren to the witness stand – and filed a motion for a mistrial after the judge did or did not allow them to resume their cross-examination.
Maybe this is an issue that will eventually be part of a separate appeal based on the assertion that Keith had “inadequate counsel” throughout his trial. But as I already indicated, I do not think there’s any chance of Keith winning on such an appeal.
19. Did the judge “poison the well” by his remarks about Lauren and his scolding Agnifilo?
Once again, I don’t see how Suneel and his colleagues will be able to produce any real “evidence” with respect to this issue – but I will certainly review whatever they produce with an open mind and then offer my opinion as to whether it will likely be helpful in terms of convincing an appellate court to overturn Keith’s conviction and order a new trial.
In general, trying to find “evidence” for what would have happened if a certain event had not occurred is an impossible task.
Notwithstanding the difficulty in finding evidence to support the contention that the judge “poisoned the well” by his remarks about Lauren and his scolding of Marc Agnifilo, I do expect this to be one of the central issues in Keith’s appeal. I also think that in the best case for Keith, the appellate court will deem this to be a harmless error.
20. How did the judge treat prosecutor Moira Penza versus defense attorney Marc Agnifilo?
This seems like a pretty amorphous question.
Maybe what Suneel and his colleagues are really asking is “Did Judge Garaufis disproportionately treat Moira Penza in a favorable manner as compared to his treatment of Marc Agnifilo – and if so, did that disproportionate treatment contribute to Keith being found guilty on all charges?”
Once again, I don’t see how it will be possible to produce any real “evidence” regarding this “what might have been” issue – but I will certainly review whatever they produce with an open mind.
21. What impact did the judge’s decision on witness anonymity have on the case?
This is another instance when I think it will be extremely difficult – if not outright impossible – for Suneel and his colleagues to produce any real “evidence” regarding this “what might have been” issue.
Trying to determine how the trial would have turned out if every witness had to disclose their full name is, in my opinion, an exercise in speculation rather than fact-finding (Several federal cases have concluded that this type of nomenclature is permissible in similar circumstances).
Nevertheless, I will review whatever evidence Suneel and his colleagues might produce on this matter with an open mind. And I will also do some research to determine how this issue was handled in similar federal trials in the Second Circuit and in other locations.
22. What impact did the judge’s rules regarding the partial sequestering of the jury and their anonymity have on the case?
I’m not sure what Suneel means by “partial sequestering”.
Protecting the identity of jurors in a criminal trial is not at all unusual – especially when the trial has as much media coverage as this one did.
Keith and his attorneys knew the identity of every juror – and were, of course, fully involved in the juror selection process.
[Stay tuned for Part 2 of Claviger’s response to Suneel’s 44 Questions.]