[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.
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?
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.
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…