[Editor’s Note: This post was updated on Monday, May 24th, after I noticed a couple of things that were not as clearly stated as I thought they should be].
By K.R. Claviger
As was previously reported on Frank Report, Keith Raniere’s latest attorney, Jennifer Bonjean, has filed an appeal regarding his June 2019 conviction in the U.S. District Court for the Eastern District of New York (EDNY).
At the conclusion of his trial — which was presided over by U.S. District Court Judge Nicholas G. Garaufis — Raniere was convicted on the following charges:
- Count One: Racketeering Conspiracy
- Count Two: Racketeering
- Count Three: Forced Labor Conspiracy
- Count Four: Wire Fraud Conspiracy
- Count Five: Sex Trafficking Conspiracy
- Count Six: Sex Trafficking (Nicole)
- Count Seven: Attempted Sex Trafficking (Jaye)
On October 28, 2019, Judge Garaufis sentenced Raniere to 120-years in federal prison – and, in what has to be considered a cruel irony, to 5 years of probation following his completion of that sentence.
Over the course of the next few days, I will be reviewing the various issues that were set forth in his appeal – and assessing the likelihood that the Court of appeals will grant the requested relief.
Before doing that, however, I want to review the overall appeals process in federal criminal trials – and take a look at what other options Keith may have going forward.
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Federal Appeals 101
We’ve all seen enough TV crime shows to understand the basic idea behind the filing of an appeal in a criminal case: i.e., the convicted defendant thinks they should not have been convicted – and they want a do-over.
Now, let’s delve into some of the realities of the appellate process when it comes to federal defendants.
First and foremost, it is important to understand that the federal appellate process is intentionally designed to be separate and distinct from the trial process.
Except for oral arguments – which are common but not required – the entire appellate process takes place outside the purview of the defendant, their attorney, the media, and the general public.
Next – and as was noted in several comments regarding the original Frank Report post about this topic – an appeal is not a chance for the defendant and their attorneys to reargue the case that they lost.
On the contrary, an appeal – or, more specifically, a “direct appeal” – is a legal proceeding in which the losing side seeks to attack the outcome of the trial based on some legal ground(s).
The appellant – in this case, Keith Raniere – details whatever “legal errors” they alleged to have occurred before, during and/or after the trial in their “brief” to the appellate court.
The appellee – in this case, the United States of America as represented by the EDNY prosecutors – then files their response to the appellant’s brief.
Thereafter, the appellant will most likely be given the opportunity to file a reply brief to the appellee’s responsive arguments
In sum, the assigned appellant judges will have three filings to review: the appellant brief, the responsive brief, and the reply from the appellant.
In considering an appeal, the appellant court will generally rely exclusively on the three briefs, the trial record – and, in many cases, on the documents and any other evidence that were admitted into evidence during the trial.
In general, the appellate judges will only review documents and other evidence that are both relevant and necessary for them to decide an issue. Thus, even though Bonjean has argued that the binder of 167 “vulva photos” should not have been admitted into evidence, it is unlikely that the judges will actually review those individual photos because the authenticity of the photos is not at issue.
One of the reasons why the appellate process is so slow is because all the filings – and all the related evidence – have to be reviewed by whatever judges are assigned to the case. Although court staff can help streamline the process in many cases by assembling the relevant evidence and summarizing the legal issues involved in the case, the assigned judges still have to personally review everything.
In general, each appellant case will have three judges assigned to the panel that will decide whether to grant the requested relief (The actual number of assigned judges can be more or less than that but “three’ is definitely the default number — especially in the Second Circuit).
Here is a list of the judges for the U.S. Court of Appeals for the Second Circuit:
- Debra Ann Livingston, Chief Judge
- Joseph F. Bianco
- Jose A. Cabranes
- Guido Calabresi
- Susan L. Carney
- Denny Chin
- Dennis Jacobs
- Robert A. Katzman
- Amalya L. Kearse
- Pierre N. Leval
- Raymond J. Lohier, Jr.
- Gerald E. Lynch
- Steven J. Menashi
- William J. Nardini
- Jon O. Newman
- Michael H. Park
- Barrington D. Parker
- Rosemary S. Pooler
- Reena Raggi
- Robert D. Sack
- Chester J. Straub
- Richard J. Sullivan
- John W. Walker
- Richard C. Wesley
The assignment process is set up well in advance — and is meant to be as random as possible. And interestingly, the name of the assigned judges are not disclosed to either side until the Thursday before the week when oral arguments will be heard
And, as is true in virtually every case, the specific judges that are assigned to Keith’s appeal could affect the outcome of the proceedings.
What do you think, Frank Report readers? If you were Keith Raniere, would you rather have a panel with two or more female judges — or two or more male judges?
And how about the age of the judges — would you rather have older ones or younger ones?
Will any of these factors make any difference — or would the outcome be the same regardless of which judges are assigned to the panel?
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Will There Be Oral Arguments in This Case?
Looking at that question from simply a statistical standpoint, the answer would be “No”.
That because almost 75% of federal appellate cases are resolved “on the briefs” without any oral arguments taking place.
But given the notoriety of this case – and the salacious nature of some of the evidence that was introduced at trial – I think the odds here are closer to 50%.
Based on my experience regarding the appellant process, I think it’s safe to say that if there are no oral arguments in this case, then the appeal will most likely be turned down.
If there are oral arguments in this case, each side will get 20-30 minutes to present their arguments.
In reality, these presentations often turn into “question-and-answer” sessions as the assigned judges seek to hear more details about particular arguments being advanced by each side.
Even if oral arguments are scheduled in this case, Keith will not be attending them. Instead, he’ll be back at his cell at USP Tucson where he is currently serving his 120-year sentence.
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In my next post, I’ll finish my review of the federal appellate process in criminal trials – and explain some of the other options that Keith may be able to utilize as he seeks to escape his current 120-year prison term.
After that, I’ll be delving into the specifics of the issues that Jennifer Bonjean has raised in the appellant brief that she filed on his behalf.
As always, feel free to ask any questions you may have about anything I’ve written in this post — and/or to point out anything you think I’ve missed or misstated…
[…] Part 1: Does Keith Raniere’s Appeal Have Any Appeal? […]
[…] Part 1 of this series of posts, I outlined some parts of the overall process for handling direct appeals […]
[…] Part 1 of this series of posts, I outlined some parts of the overall process for handling direct appeals […]
[…] Part 1 of this series of posts, I outlined some parts of the overall process for handling direct appeals […]
[…] Part 1 of this series of posts, I outlined some parts of the overall process for handling direct appeals […]
[…] Part 1 of this series of posts, I outlined parts of the overall appeals process in federal criminal trials […]
[…] Part 1 of this series of posts, I outlined part of the overall appeals process in federal criminal trials […]
[…] Part 1 of this series of posts, I outlined the overall appeals process in federal criminal trials – […]
K.R.:
Are the Guilty Pleas by the Codefendants prima facie evidence of Raniere’s guilt under the RICO predicate acts?
I don’t think the selection of judges would make any difference. Male, female, young, old- nobody’s going to think Raniere’s anything but an asshole who exploited women. The evidence against him is overwhelming. He won’t get any sympathy but he will get justice. And the question of justice will be settled on a dispassionate application of the law.
Question: at his trial, was Raniere given the choice of a jury trial or trial before a judge? Given the nature and scope of his weird sexual misdeeds, did he think any jury would look kindly on him?
Of course, given the weight of testimony against him, any judge would have found him guilty too.
And Bonjean’s appeal has no chance.
Raniere was given the choice of a bench trial or a trial by jury — and he chose the latter. I have wondered if the outcome would have been much different had he chosen a bench trial — and have concluded it would likely have been the same. In retrospect, the only thing Keith might have done to mitigate the outcome was to take the stand — and no attorney would have advised him to do that.
Could keith should have defended himself with guidance of counsel through court proceedings, case law, etc?
Like him or not, when a segment of people heard his voice the fact is he was effective in brainwashing. That is just a fact otherwise we wouldn’t be here. Perhaps if he talked and talked and talked he could have gotten at least one person on his side to hang the jury. It’s a longshot but who knows. And he would be likely very effective at manipulating Lauren, Dani, etc, after all he’d been doing it for 20 years.
Though it would have been a real mother fucking longshot, having him do closing argument might have done him a little, tiny bit better than his completely useless attorneys.
Of course, the poor court reporter would have had to get counseling for all the word salad she had to dictate. And it’s possible nobody in the jury would know have any idea of what the fuck they just listened to for three weeks. But at the very least, it’d be entertaining! I really wish he would have done it.
Would a judge even allow this? Would that have been possible Clav?
Although trial judges will often dissuade them from doing so, defendants generally have the right to represent themselves. And although many trial judges will allow a self-representing defendant to have an attorney at the defense table to provide advice during the proceedings, I have not seen the sort of “tag-team” approach you’re suggesting where Keith would handle some things and a trial attorney would handle other things.
But you raise two interesting questions — and given how things turned out, questions that may haunt Keith for the rest of his life: (1) Should he have just represented himself throughout the trial? and (2) Should he have testified on his own behalf?
Given that he ended up with a 120-year sentence, it’s hard to believe that he would have fared any worse had he represented himself throughout the trial. In fact, I think Judge Garaufis might have meted out a much lighter sentence in those circumstances if only out of concern that the sentence would more likely get overturned.
Similarly, it’s unlikely the outcome would have been any worse had Keith taken the witness stand for a couple of days. And, as you point out, it’s possible that he could have convinced at least one juror of his innocence on one or more of the charges if he had a chance to talk to all of them directly.
Unfortunately, we’ll never know how those scenarios would have played out…
Some defendants represent themselves so they have an automatic appeal for Ineffective Assistance of Counsel. Ted Bundy played this game.
I’m not aware of any cases where a pro se criminal defendant was granted a new trial based on “ineffectiveness of counsel”. I have not looked at the Bundy case in quite some time but even if he did try to raise that issue, I’m certain it didn’t work.
Do you have any citations for cases where this “tactic’ actually resulted in a new trial being granted? It sounds more like an “urban legend” to me.
All that being said Claviger, keith was given an extremely fortunate, perhaps one-time, opportunity to submit his arguments to the readers of Frank Report and convince us of his and his co-defendants innocence. When given this opportunity, the best he could do was tell us some bullshit about vampires, toasters, and buyer’s remorse. That would have been an awesome thing to see in a closing argument. So I do have to temper some of my comments, and admit he perhaps could in fact have made things worse LOL
ICYMI…
https://frankreport.com/2021/02/15/from-prison-keith-raniere-my-codefendants-are-innocent-part-1-attackers-destroyed-our-community/
That’s a fair point — but, on the other hand, how much worse than 120-years in federal prison do you think he could have gotten?
Watching Leticia Stauch out west, who is going on trial for the murder, etc., of a young boy who was her stepson. A young boy named Gannon lost his life.
Stauch is trying to run the asylum. Like a demented baboon!
Her attorney dancing and switcheroos about representing herself vs. accepting professional representation are delaying her comeuppance with what we call justice.
I haven’t heard about that case — but I will definitely take a look at it.
Where is the money for Keith’s attorneys coming from? Didn’t Cafritz’s money get seized for victim restitution?
Where does any money for NXIVM come from?
The Bronfmans or Mexico.
While I’m not sure about the specifics in a case like this, I know that in general the legal system is set up so that lawyers’ fees are among the highest priority when there are any sort of competing claims, including possibly even seizure – surprise, surprise.
And if I recall, the feds have filed some seizure actions, but Cafritz’ estate is still up in the air.
Raniere also theoretically owns a large interest in Claire Bronfman’s rather valuable island in Fiji, and I’ve never seen any definitive settlement of what’s up with that. With enough different sources of money in play, the lawyers may be assuming that there will be some sort of assets like that, out of which their bills can be paid.
And Raniere may have remaining wealthy supporters who are just more in the background than the Bronfmns. If Suneel comes from money, which seems possible, he’s certainly supporting Raniere full out.
Great question!
I know it’s 2021 and all, but his attorney might want to rethink long sleeves in the PR pics.
She’s pretty hot. I like the tattoos. And if I were a judge of give it to her just for the tats. So go sleeveless.
She has links to her law firm and party pics all on Instagram. Plus she parties with her 20 something father.
She’s pretty hot, has a rad body and probably a great-looking pussy if it hasn’t been branded yet. Nicki is following her on IG so she’s for sure a DOS target. Almost certainly keith picked her because she’s hot and keith needs to dream of fresh pussy and that’s as close as he’s going to get to it for the next 120 years. go for it keith, why not, good luck.
Snorlax,
She WANTS us to see those tattoos! What you can’t grasp (and neither can I) is that her IQ is through the roof due to them!
I earnestly hope the appelate judges can see that. Not so much for Raniere’s benefit but for hers, cos she is sexy until you see her cheap destitute tastes.
K.R. Clavinger,
It is always interesting and informative when you share your legal expertise with readers on this blog. Please refrain from referring to female genitalia as “pussys”. This is offensive, degrading, humiliating, and dehumanizing. Your legal expertise is otherwise, much appreciated.
You’re right — and I have since updated that part of the post!
Claviger-
Yes, please use Mounds pubis. “Pussy” is incredible vulgar and insensitive.
Alternatively, you could have used:
fur-burger, bacon strip, flap-box,
beef-curtains, cooter, muffin, pleasure-cave, ham sandwich, shrew, meat-socket, anchovy taco, or fish-calzone.
Don’t worry Claviger, we don’t think any less of you.
I like that, I like that!
Please post more often!
Bad on you Claviger. You caved to the cave women cancel culturists. It is a pussy.
What’s wrong with pussy? It’s the one name we all know what it means.
Furthermore, pussy can be either an insult or a compliment or perhaps ut could be neutral, beige. Sorry. God forbid. Not beige.
I am confused.
I love puddytats. Incessantly. What is supposed to be wrong with pussy, except for perhaps in this one brief article by um, never mind ? He could be Lucille Claviger. Nothing has been proven.
A woman may call her snatch whatsoever she pleases, after all.
The whole point of this mother fucking blog is to be offensive. Pussy for all mankind.
Enlightened minds are always democratic. Hats off to you, Shivani!
😛
Yeah, but can you call Raniere’s supporters human?
If not, there are plenty of legal publications to be read, saving yourself the raw trauma of reading Claviger’s true to life assessments!
Mr. Claviger. You usually write good but this is stupid writing. The racketeering is not. Sex trafficking is not. Forced labor no. All these are exaggerated and the appeals court will know it because unlike you, the DOJ and the judge, they know the true law.
Hey #Justice, Claviger did not even make a substantive argument here. Do you even know what it is that you find objectionable or, as you say, “stupid writing”?
“Sex trafficking is not”
Not what?
Also, it’s “write well” not “write good.”
In the future, wait for the person to make an argument before you oppose a non-existent one..
To Claviger: start writing gooder!
It’s a Mexican Nxivm member with Poor English… probably poor too…
Anonymous at 2:26
No, I don’t think it is. It doesn’t add up.
The first half is choppy English, unfinished sentences and thoughts, yet the last sentence is written well:
“All these are exaggerated and the appeals court will know it because unlike you, the DOJ and the judge, they know the true law.”
And, then after your comment, they go all out with the choppy English.
I believe the leftovers write on the comments pretending to be poor Mexicans to make a case that Raniere really did help the poor and is a wonderful saintly man.
Their transparency is comical.
Hey I write about my heart and my experiences of the true life. This is no good. Raniere not bad man. He good. He bring people hope when heart. You mock me but you no better than what you say He is.
#freeRaniere,
I would have to disagree.
I don’t sexually abuse and rape women and young girls.
I don’t manipulate women to satisfy my sexual perversions.
I don’t traffick Mexican girls into the US to work for free and provide sexual satisfaction for me.
I don’t blackmail people with compromising photos and/or information.
I pay my taxes.
So, even though I am far from perfect, I am a saint compared to that monster. Your average monster is a saint compared to Raniere.
And, I wasn’t mocking you. You were objecting to something you did not read. You were insulting Claviger for his “stupid writing” but then using incorrect grammar, making you an odd choice to judge anyone in that regard.
Don’t dish it out if you can’t take the feedback.
AND
#FreeYourselfFromRaniere!
#JusticeForRaniere
Thus far, the only things K.R. Claviger has been wrong about are the lengthy sentences, imposed on your Vanguard and Legalus. No one saw a 120 year and
6-year sentence respectively.
Christ, even the DOJ was shocked!
Why is there no #JusticeForBronfman?
Is this Bangkok?
Yes, Mr Claviger! I also wish you’d display a refined grasp of English just like “Justicefor Raniere”.
You’re an embarrassment!
K.R. Claviger-
As always, top-notch reporting!
It’s so wicked 😈 of you to dash the hopes of the NXIVM 5. Now they’ll have to find some solace in a bottle of grog.
Please Note: I used the 😈 emoji because that’s the emoji Keith Raniere used when he received…
…DOS photo collateral ie nude photos.
Nothing creepy going on!