By K. R. Claviger
In Part 1 of this series of posts, I outlined the overall appeals process in federal criminal trials – which is what will govern how the appeal that was filed in Keith Raniere’s case will be handled.
I left off at the point where the 3-judge panel from the U.S. Court of Appeals for the Second Circuit – which, BTW, has already been assigned to Keith’s appeal – will have received the following documents:
- The appellant brief that filed on May 7, 2021 by Jennifer Bonjean on behalf of Keith;
- The response brief that will be filed by the prosecutors from the EDNY; and
- The reply brief that will be filed by Ms. Bonjean.
At that point, the three judges will decide whether or not to hear oral arguments in the case. Even though that’s statistically unlikely – only about 25% of federal appeals involve oral arguments – I’m going to assume there will be oral arguments in Keith’s case so that I can explain what would be involved with that component of the appeals process.
So, following their review of the three briefs – plus whatever documents and other evidence from the trial that they deem relevant to the issues raised in the appeal – the 3-judge panel will schedule a date for both sides to present their arguments.
Given the continuing relaxation of COVID-19-related rules, I think it’s quite likely that the oral arguments in Keith’s case will be conducted in person at the Second Circuit’s courthouse at 40 Foley Square in New York City (Keith will not be in attendance at the oral arguments).
On the Thursday before the scheduled date for the oral arguments, both sides will find out the names of the three judges who have been assigned to the appeal.
Once they have those names, they will undoubtedly send their respective staff off to review other appellate cases in which those same judges were involved to see if any of their prior rulings may give some indication of how they might approach the case at hand.
On the day set aside for oral arguments, the attorneys for each side will be given 20-30 minutes to argue the various legal points they raised in their briefs – and to refute any points that were raised by the other side.
Most of that allotted time will actually be used to answer questions that the three judges have about the issues that were raised in the filings and/or via their review of the trial court proceedings.
And, at the end of the oral arguments, the three judges will most likely indicate that they “…take the matter under advisement” – which is just a fancy way of saying “We’ll get back to you after we’ve decided whether to grant some/all of the relief that the appellant has requested” – which, in this case, would be a reversal on almost all the counts on which Keith was convicted and a new trial.
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Moot Court Sessions
Many appellate attorneys will prepare for the oral arguments by conducting “moot court” sessions.
These are basically practice sessions where fellow attorneys will read all the relevant materials – and then play the role of the 3-judge panel members by bombarding the appellate attorneys with questions about the case.
Such practice sessions can add a significant amount to the overall cost of a federal appeal – but given how important these sessions can be in preparing for oral arguments, they have become fairly standard in modern law practice.
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What Sorts of Issues Will The Appeals Court Judges Be Able to Consider?
One of the fundamental rules of federal appeals is that the appellate judges will only consider those alleged legal errors that were properly “preserved” during the actual trial.
What that means in simple terms is that if the defendant’s trial attorney did not object to an alleged error during the trial on a timely basis – and state a specific basis or ground for their objection – the appellate court cannot even consider the alleged error.
Let’s look at an example of a very common occurrence in a trial to underscore what this concept of preservation means.
Let’s say that Keith’s lead attorney, Marc Agnifilo, objected to the response given by a prosecution witness to a question that was asked by AUSA Moira Kim Penza on the grounds that the response contained “hearsay”.
Even if Judge Garaufis responded by saying “Sustained”, Agnifilo still has to do more work if he wants to preserve this matter for appeal.
The reason he may want to do that is because the jurors will have already heard the hearsay answer from the witness – and, thus, the verdict they render could be negatively affected by the tainted response.
So, in this example, Agnifilo would also have to request that Judge Garaufis “…strike the answer from the record”.
If Judge Garaufis rejects the request to strike, then the hearsay issue will have been properly preserved because the judge’s ruling constitutes an “adverse ruling” against Agnifilo and his client.
But if Judge Garaufis grants the request to “…strike the answer from the record”, then Agnifilo still has work to do if he wants to preserve the matter for appeal because there has not yet been any “adverse ruling”.
In this example, Agnifilo would have to request that Judge Garaufis “…instruct the jury to disregard the hearsay response from the witness”.
If Judge Garaufis issues such an instruction to the jury, then Agnifilo would have to do something else like filing a motion for a mistrial because he still will not have received any sort of “adverse ruling” as regards the hearsay response.
If, however, Judge Garaufis rejects Agnifilo’s request about instructing the jury to disregard the hearsay response, then that would constitute an “adverse ruling” – and would preserve that issue for appeal.
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What You Ask for in an Appeal Pretty Much Dictates What You Might Get
Although several of the people who still support the former Vanguard continue to suggest that if he wins his pending appeal he will be set free, that is not likely to happen (I’ll have much more to say about this issue when I focus on Keith’s actual appeal in the segment of this series).
While outright acquittals can – and do – occur, they are exceedingly rare when it comes to federal appeals.
In general, if the appellant is successful in convincing the appellate court that “reversible errors” occurred during the course of the trial, the relief afforded will be a new trial.
Thus, if the appellant wins on appeal, they return to the status they had before the trial started.
For Keith, that would likely mean a return to the Metropolitan Detention Center in Brooklyn, NY – where he would begin preparing for a new trial with whatever new defense attorneys he might hire (Although possible, I think it’s extremely unlikely that Marc Agnifilo would be willing to represent Keith again – and equally unlikely that Keith would ask him to do so).
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What Happens if the Appeal Is Denied?
Even if the appellate court denies a direct appeal, the appellant still has several other options for trying to undo the outcome of the trial.
These options vary somewhat from federal circuit to federal circuit but they generally include such things as “Petitions for Rehearing” and “Petitions for Rehearing En Banc” (The former would be a request for a new hearing before the same 3-judge panel – and the latter would be a request for a new hearing before all the judges for the appellate court).
Even if those secondary appeals fail, there are still more options like habeas corpus proceedings – and appeals based on “ineffective assistance of counsel”.
These other options can keep prisoners busy and hopeful for several years – especially if they have access to money to pay for numerous appellate attorneys or they become jailhouse lawyers.
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I apologize if any Frank Report readers found this two-part description of the appellate process to be dull and uninteresting. But I thought it was really important to explain the whole process before I started reviewing the details of Keith’s pending appeal.
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 misstated (I do read all your comments – and respond to as many as possible).
Frank Parlato 
Janine Morrison 
J.J. O'Hara 
Richard Luthmann 
Marie White 
Paul Serran
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“He who seeks joy by hurting those who seek joy will never find joy.”
K.R. Claviger-
RE Mack testifying against Clyne:
If Mack agreed to be a witness for the DOJ, could Clyne claim Marital Privilege or Spousal Privilege to prohibit Allison Mack’s testimony in court, even though they are now divorced?
Ice-Nine and I both have the same question
As is often the case, the actual law on this topic is a little more complicated than the Hollywood version that is portrayed in movies and seen on TV.
To begin with, there are two different types of “spousal privilege”.
The first type is testimonial privilege — and it can be invoked when one spouse is called to testify against another spouse. Under U.S. federal common law, this privilege is held by the person who has been called to testify, not the one who is the subject of the action (Many states do not follow that rule in state-level cases). So, in the case at hand, Nicki could have refused to testify against Allison while they were married — and Allison could not have prevented Nicki from testifying during that same time period if Nicki volunteered to do so — about things that happened while they were married. Testimonial privilege ends when the marriage ends — which means that when the Nicki/Allison divorce is finalized, Nicki can be called to testify about events that took place before, during and after her marriage to Allison.
The second type is communication privilege — and it applies to both spouses. So, either Nicki or Allison could invoke this privilege to prevent the other from testifying to things that were said to each other — and only to each other — while they were married. Unlike testimonial privilege, communication privilege does survive the end of a marriage — which means that Allison will always be able to prevent Nicki from testifying about any private communications they had while they were married and vice versa.
I hope that helps…
Klaviger,
It helps!
I get the gist.
Thanks!
“The world is a looking-glass, and gives back to every man the reflection of his own face.” ~ William Thackeray
Justice will be done when Raniere will be beaten so well that the skeletal structure of his arms will be inoperable to any meaningful extent by orthopaedic surgeons so that he will have them dangling by his torso at all times.
Raniere deserves a regular intervention like that until he can’t crawl even by trying to use his legs.
I know it sounds cruel but it is entirely reasonable if it (Raniere) is viewed objectively. Raniere is not an animal for animals do deserve respect. It is an animated object using up oxygen without any moral justification whatsoever.
I look forward to reading that one or more prisoners will help him.
There can only be talk about due legal process AFTER this same analysis framework has been laid over the due process Raniere followed to destroy dozens of people. Has that been done? Nooo, ef the victims. We enjoy giving lip service to whatever moral principles yet in actual fact are busying ourselves with totally different priorities.
Not dull at all. Very interesting particularly for me comparing it to Engilsh court proceedings (they are on similar lines)
Once again, I am impressed with the fairness of the US legal system. The rights granted to criminal defendants are extensive; not only does the defendant have the right to appeal his conviction, it seems from the above that defendants can appeal multiple times.
As far as I know, the prosecution cannot appeal a not guilty verdict.
Add to this the doctrine of innocent until proven guilty. The defense does not have to prove innocence, the burden is on the prosecution to prove guilt. Beyond a reasonable doubt- not simply on the preponderance of evidence as is the case in civil trials. This is a very high standard.
And the verdict has to be unanimous. A single skeptical juror can block a guilty finding.
And the verdict is not determined by the State, nor by a judge. The defendant has the right to be judged by a jury of ordinary citizens.
There’s a lot of talk about “tyrannical” government, of out-of-control prosecutors sending people to jail who don’t belong there. But it seems a strange way to run a tyranny, having a presumption of innocence, trial by jury, and granting the defense multiple appeal opportunities.
Of course, all this depends on the defendant having the necessary financial resources. But we’re talking about Raniere here, who evidently has a couple of high-priced legal firms in his corner.
Not that his appeal will do him any service, since this is a legal process determined by facts. And the fact is, he committed every crime he was convicted for. His hopes will be dashed.
His remainders then ought to accept the fact of his guilt.
But, of course, they won’t.
You’re correct that prosecutors can not appeal a “Not Guilty” verdict. If you’re really interested in this topic — and some of the nuances concerning it — you can go to: https://www.law.cornell.edu/constitution-conan/amendment-5/reprosecution-following-acquittal.
I’ve learned more about how the law works on FR because you explain all the incomprehensible details that are normally just brushed over and accepted. It’s interesting and informative.
Most of us will only ever experience the low income or middle range of legal experiences. Most actions stop from lack of money to continue, but this case has unlimited resources to explore all those typically inaccessible avenues of redress.
Frank Report at its best, Claviger! Yer always an interesting and genial read—thank you.
“I apologize if any Frank Report readers found this two-part description of the appellate process to be dull and uninteresting. But I thought it was really important to explain the whole process before I started reviewing the details of Keith’s pending appeal.”
WTF you talking about dude? I read every word and even started reading the appellate brief you linked to. I have learned more about legal process, terminology, etc from FR than I ever did from a few college courses or from watching Law and mother fucking Order. And since I have no interest in becoming a felon anytime soon, reading about it here is good enough for me. And it’s 100 times better than anything Suneel writes, that dude has lost it.
The only questions I have are who the fuck are you? Are you a he or a she (or possibly a they)? I’m pretty sure you are a she that may have been an attempted DOS recruit. And wtf does KR Claviger mean anyway?
Other than that, keep up the good work.
Exactly ICE-9 !!!
Ice-Nine
My guess for the meaning behind the name K.R. Claviger:
K.R. are the initials of Keith Raniere.
Claviger is a species of “yellow” ant.
https://bugguide.net/node/view/224321/bgimage
So, I believe K.R. Claviger is meant as a direct insult to Kieth and an insult Raniere is cognizant of.
I must say, it’s a very clever insult.
Unoriginal. Sure I read a comment exactly like this but for the minor change that makes it your [feeble] own. Do you really not have a job? Is this report all you got?
K.R. Claviger,
—I apologize if any Frank Report readers found this two-part description of the appellate process to be dull and uninteresting.
This piece on the appeals process and procedural law is the most interesting, important, and informative article, I’ve read in a longtime, on the Frank Report or anywhere else.
I always complement you and your articles, this time I mean it!!! 😉
Your piece is worthy of The Atlantic or Wall Street Journal. Quality!
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I had to read the—
“What Sorts of Issues Will The Appeals Court Judges Be Able to Consider?”
— section twice, because, it’s incredible shocking/disturbing, that appeals are so dependent on your attorney following technical procedures and rules to the letter. It’s like your life is dependent on a bunch of arbitrary GAME RULES!
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“That is incorrect. I am sorry! When, you, answer a Jeopardy question, you answer must be phrased as ‘what is’ or ‘who is’ .”
-Alex Trebek
“Now your life is flushed down the toilet.”
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The appeals process is utter bullshit! Keith has a better chance of shitting gold bricks.
Thanks for the explanation.
This process is why I keep repeatedly saying over and over that the efforts of Suneel, Clyne, etc. are so damn pointless. They keep thinking the law works on they have seen on TV and the movies for decades. A dramatic turn, based on a small piece of evidence, that blows the case, causes judges to stand at attention in outrage and bang that gavel for injustices rendered, who then make quick decisions in the name of justice. It’s nothing like that. Not even close to that.
It’s a very dry, paperwork, legalese process that hinges on a whole lot of things coming together. It also takes a very long time to run through its paces. Years. Sometimes decades. And none of it is going to hinge on the beliefs, theories, desires, websites, comments, social media, etc. of anyone pro or anti of that particular cause.
All of us are farting in the wind on thinking we will have an impact on the case. The difference though is anti-Raniere folks know this instinctively, so all this is for entertainment, ego-stroking, feel morally superior, or whatever else with the end result being not really a personal stake in events. The pro-Raniere folks though, they do have a personal stake. All aspects of it are very important to them (Just see Suneel’s continued rantings or read Clyne’s tweets that are constantly, directly or indirectly, about Raniere). They are prepping themselves for massive disappointment and I don’t know where that will send them. I have noticed several are moving into the right-wing rabbit hole. Next time their dear leader commands them to storm the Capital, will we see Clyne and Suneel in the crowd?
You think I am exaggerating but I am not. They have, from their perspective, suffered several years of massive blows to their world. Their hero jailed, their decade of effort for NXIVM being trashed everywhere, their friends gone, their careers gone, their future unknown but not looking good. They had hope though – they could save Raniere. Except their every effort shows they really do not understand on any level the process they are working against. What happens when that last hope dies before they figure out a way to rebuild their lives for new sources of hope? That dashed hope, that feeling of constantly being under siege is where suicides, acts of terrorism, and joining other cults happens. Thankfully, most ex-NXIVM have started the road of moving on, but a few (Clyne, Suneel, etc.), I continue to have grave concerns for.
I have had the sense that merely getting people to think about him is seen as an accomplishment. As if he is living rent free in their minds and they’re selling a mental vacation time share.
Claviger, you miss the point. Keith is going to be freed on appeal. You’re pretty mixed-up, kid. You’re explanation of how the appeal works makes no mention that the oral argument is super strong and will persuade honest judges.
Your explanations are far from dull, Claviger. You are a natural wonder, in fact. Applause. My dearest professor! What skills you have in your pockets. So many interesting pockets, too. Artistic ones and realistic ones.
Realism meets surrealism even if you don’t care to admit it. The art of science and the science of art! I love it all and probably too much.
Not only have you laid out the ropes and procedures, you join two professions together seamlessly. Yes. You do. I grew up surrounded with professional and academic thinkers, amazing ones. And I like your style very much.
Attorneys and actors not only rehearse, there is dress rehearsal happening, too. At all times.
I am only a person who loves to dance, and even I get you. You are, as mentioned before, far from a “hair-” OR a hare(-)brain. I’m sticking with you being a natural wonder.
Okay?
The appeal lacks appeal. This human piece of feces has ruined a number of lives; well beyond those he personally victimized.
His appeal is unappealing. Perhaps with fingers crossed, he may end up Epstein’d. Doing the world, our judicial system, and the cost to the taxpayers a service.