Claviger: Does Keith Raniere’s Appeal Have Any Appeal? – Part 3: Analyzing the Appeal in Detail

In Part 1 of this series of posts, I outlined part of the overall appeals process in federal criminal trials – which is what will govern how the appeal that was filed in Keith Raniere’s case is being handled.

In Part 2, I outlined the remainder of the federal appeals process – and explained the concept of “preservation” as it relates to the issues that can be raised via a direct appeal – which is the type of appeal that is currently pending for Keith. I also listed some of the other things that a convicted defendant can do to challenge their conviction and/or sentence.

Now, with all that contextual stuff out of the way, we can turn our attention to the appellate brief that was filed on May 7, 2021 by Keith’s new attorney, Jennifer Bonjean.

For those Frank Report readers who want to able to refer back to that document, you can find a link to the appeal HERE.

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General Comments & Notes

One of the first things I noticed about the appellate brief is that it references two Defendants-Appellants: Keith Raniere AKA Vanguard and Clare Bronfman (I have to admit that I still smile every time I’m reminded that the Eastern District of New York/EDNY prosecutors actually included “AKA Vanguard” in their original filing in the case).

That reminded me that the EDNY has not yet filed its response brief in Clare’s appeal – which was filed by her attorneys, Daniel R. Koffmann and Ronald S. Sullivan, Jr., back on March 3, 2021. Remember what I said about federal criminal appeals being a lengthy process?

I also noted that compared to Clare’s appellate brief – which was 241 pages – Keith’s appellate brief is a relatively short 96-pages (Both briefs likely required permission to exceed the Second Circuit’s page limitation on such documents)

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Issues Raised on Appeal

As is true for any appellate attorney, Bonjean had to balance out her desire to raise as many legitimate issues as possible with her concern about “burying the lead” by raising issues that are relatively unimportant and/or unlikely to succeed.

In this case, it appears that Bonjean tried to accomplish that balance by detailing why specific charges should be dismissed – and by then asserting, in essence, that the entire case should be dismissed because Keith was supposedly denied a fair trial and because his Fifth Amendment & Sixth Amendment rights were supposedly denied because of specific errors that were made by the presiding judge in his case, U.S. District Court Judge Nicholas G. Garaufis.

And so it is that she summarized the legal issues to be presented as follows:

1. Whether the government proved the Defendant guilty by proof beyond a reasonable doubt of the following offenses: all sex trafficking offenses (Counts 5-7 and Act 10A); conspiracy to commit forced labor and forced labor of Nicole (Count 3 and Act 10B); sexual exploitation of a child (Acts 2 & 3); conspiracy to alter records in an official proceeding (Act 6); and conspiracy to commit identify [sic] theft of Pam Cafritz. (Act 11).

2. Whether the government proved the Defendant guilty of RICO and conspiracy to commit RICO due to insufficient evidence of: (1) an enterprise; and (2) a pattern of racketeering.

3. Whether Defendant was deprived of his Fifth and Sixth Amendment constitutional guarantees where the government swamped the jury with a mass of minimally probative yet highly prejudicial evidence related to the Defendant’s controversial sex life.

4. Whether Defendant was denied his constitutional guarantees under the Fifth and Sixth Amendments where the District Court prematurely terminated defense counsel’s cross-examination of the government’s key cooperating witness.

5. Whether Defendant was denied his constitutional guarantees under the Fifth and Sixth Amendments where the District Court required the parties and the witnesses to refer to individuals designated by the government as “victims” only by their first names or pseudonyms, signaling to the jury that Defendant should be presumed guilty.

With that summary in mind, let’s start looking in more detail at each of the legal issues that Bonjean focused on in her appellate brief :

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The Beyond-A-Reasonable Doubt Issue

Bonjean’s initial argument to the appellate court is that the EDNY prosecutors failed to introduce enough evidence to warrant Keith’s conviction of various charges and certain predicate acts “beyond a reasonable doubt”.

More specifically, she asserts this failure applies to the following counts and predicate acts:

• Count Three: Forced Labor Conspiracy
• Count Five: Sex Trafficking Conspiracy
• Count Six: Sex Trafficking of Nicole
• Count Seven: Attempted Sex Trafficking of Jay
• Predicate Act 2: Sexual Exploitation of a Child on November 2, 2005
• Predicate Act 3: Sexual Exploitation of a Child on November 24, 2005
• Predicate Act 6: Conspiracy to Alter Records for Use in an Official Proceeding
• Predicate Act 10-A: Sex Trafficking – Nicole
• Predicate Act 10-B: Forced Labor — Nicole
• Predicate Act 11: Conspiracy to Commit Identity Theft – Pamela Cafritz.

In making this argument, Bonjean starts off with a “broad-brush” approach – i.e., “Because the jury’s verdict of guilt as to (the above-listed counts and predicate acts) were [sic] based entirely on speculation, conjecture, and inflamed emotions, rather than through reasonable inferences derived from the evidence, this Court must vacate those convictions”.

She then proceeds to make several specific arguments regarding Keith’s interactions with Nicole and Jay that resulted in him being charged with the three sex trafficking counts: i.e., Count Five: Sex Trafficking Conspiracy, Count Six: Sex Trafficking of Nicole, and Count Seven: Attempted Sex Trafficking of Jay.

RE: Sex Trafficking of Nicole

With respect to Nicole, Bonjean asserts that the prosecution failed to prove that Allison Mack received “anything of value” as a result of her sexual relationship with Keith. In part, she argues that’s because Allison did not even know that Nicole and Keith had a sexual relationship.

Although Bonjean acknowledges that Nicole’s initial sexual encounter with Keith on May 31, 2016 was part of DOS, she asserts that all their remaining sexual encounters were part of a voluntary intimate relationship that had nothing to do with DOS. While she offers no real proof for this assertion, this tactic allowed Bonjean to focus all her attention on the initial encounter in which Nicole was blindfolded and brought to an undisclosed location where an unknown person – who later turned out to be Camila – performed oral sex on her.

Bonjean further argues that Nicole’s initial sexual encounter with Keith did not constitute a “commercial sex act” because Allison Mack – who was Nicole’s “master” and who is the one who assigned Nicole to “offer to do anything” for Keith – never received anything of value for setting her up. In conjunction with this argument, Bonjean asserts that Allison’s “maintain[ing] a spot in the first line of DOS” does not qualify as a “thing of value” as that term is utilized in the Trafficking Victims Protection Act (18 U.S.C.§1591).

But in case the 3-judge appellate panel doesn’t buy that argument, Bonjean offers an alternative for them to consider: i.e., since Nicole was just one of the many women that Allison set up to have sex with Keith, Allison did not receive a “thing of value’ specifically with respect to Nicole.

Bonjean also asserts that “…the government failed to put forth adequate evidence that Nicole engaged in the May 31, 2016 sex act (or any other sex act with the Defendant) as a result of coercion or force, including a fear that her collateral would be released if she refused to submit”. As “proof” for this assertion, Bonjean points out, among other things, that although Nicole testified that she feared her collateral would be released if she left DOS, she did not testify that she had that same fear if she did not have sex with Keith – a classic “distinction without a difference” (It almost sounds like Bonjean has been taking special classes with Nancy Salzman – who, by the way, reportedly is back doing personal counseling and bringing in some big bucks).

It is clear from the fact that Bonjean made Keith’s sexual relationship with Nicole the first substantive issue she raised in the case – as well as the fact that she spent almost 8-full pages of her 96-page brief focused on that relationship – that she believes undercutting Nicole’s testimony is one of the keys to getting Keith’s convictions overturned.

What I find odd about that tactic is that by focusing all this attention on Nicole, Bonjean will, in essence, be inviting the three appellate judges to read every single word of Nicole’s testimony.

During the trial, Frank Report ran a 5-part series of posts regarding Nicole’s direct testimony and cross-examination.

Nicole began testifying in the afternoon session of the trial on June 6, 2019 – and she was on the stand for almost two full days of direct examination and another half-day of cross-examination.

I have not gone back and re-read the transcripts from all the time Nicole was on the witness stand but just skimming through them revealed lots of problematic testimony from the standpoint of Keith and his appeal.

Things like “My understanding now is that I was being groomed be part of his harem” – which was Nicole’s answer when, for some unknown reason, Marc Agnifilo asked her why she had so much contact with Keith shortly after she started taken NXIVM/ESP courses (Agnifilo tried to get her response stricken from the record but Judge Garaufis rejected the request).

And her testimony about asking for her collateral back and not receiving any of it is not going to help either.

The same goes for her testifying that she needed to get permission from Allison and Keith before she could cut her hair – which is only going to emphasize just how much control they had over her.

I may be proven wrong on this point but I think Bonjean made a big mistake in making Nicole such an important part of Keith’s appeal.

RE: Attempted Sex Trafficking of Jay and Sex Trafficking Conspiracy

With respect to Keith’s conviction on Count Seven: Attempted Sex Trafficking of Jay, Bonjean simply reasserts – once again without any references to the trial record – that the government did not offer any evidence to prove that Keith ever engaged in – or tried to engage in – any commercial sex activities with Jay.

She then uses that unsupported argument as the basis for her claim that Keith should also not have been convicted on Count Five: Sex Trafficking Conspiracy because the prosecution failed to prove that “…the moving force behind Mack’s (or any other first-line “master”) directions to seduce Defendant was for economic benefit, including so-called ‘acts of care’, which was [sic] a common theme of NXIVM”.

That’s about all Bonjean had to say about Jay and those two counts – which, in my opinion, is likely not going to sway the appellate court to overturn those convictions.

Had Bonjean not spent so much time – and so many pages – addressing Nicole-related matters, she could have put together a much more detailed argument to support her request that the appellate court overturn Keith’s convictions for the Attempted Sex Trafficking of Jay and for Sex Trafficking Conspiracy.

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All in all, I’m not so sure that Bonjean should have started out by arguing that the prosecution had not provided enough evidence to support Keith’s convictions of any of the above-listed counts and predicate acts.

In part, that’s because those kinds of arguments are almost a concession that some evidence was introduced with regard to each of those charges – just not enough to warrant a conviction “beyond a reasonable doubt”.

Once again, that strategy will almost force the appellate judges to go back and look at every piece of evidence that was introduced by the prosecution with respect to each of those charges so that they can determine if, in fact, it was sufficient to warrant a conviction.

And given all the damaging evidence that was introduced in this case, I sure as hell wouldn’t want to do anything that would encourage the three judges to read all of it.

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In the next part of this series, I’ll finish up looking at what other convictions Bonjean is seeking to overturn by arguing that the prosecution did not introduce enough evidence to support Keith’s conviction on the above-listed charges. After that, I’ll move on to the other “legal issues” she has included in her appellate brief.

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…

K.R. Claviger